DENISE COTE, District Judge:
Plaintiff's suit, which was filed on October 25, 1994, arises under Title VII of the Civil Rights Act of 1964, as amended by the Equal Employment Opportunity Act of 1972 and the Civil Rights Act of 1991, 42 U.S.C. §§ 2000e et seq., the Equal Pay Act of 1963, as amended, 29 U.S.C. § 206(d), the New York State Human Rights Law, Executive Law § 296(1)(a), and the common law of the State of New York. On March 24, 1995, this Court dismissed, with leave to replead, plaintiff's claim for intentional infliction of emotional distress, because plaintiff had failed to plead specific acts that would bring her claim within the statute of limitations. Plaintiff subsequently filed an amended complaint, and defendants have moved once more to dismiss her claim for intentional infliction of emotional distress, pursuant to Rule 12(b)(6), Fed. R. Civ. P., for failure to state a claim upon which relief can be granted. Additionally, the Court is asked to decide whether, in light of the Second Circuit's recent Opinion in Tomka v. The Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), it must dismiss the complaint against Robert Guccione, Jr., as to Counts I through IV of the First Amendment Complaint.
For the reasons set forth below, defendants' motion to dismiss the claim for intentional infliction of emotional distress is denied, and its motion to dismiss the Title VII claims against Guccione is granted.
The Court may dismiss an action pursuant to Rule 12(b)(6), Fed. R. Civ. P., only if "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). In considering the motion, the Court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiff's favor." Jackson National Life Insurance Co. v. Merrill Lynch & Co., 32 F.3d 697, 699-700 (2d Cir. 1994). The Court can dismiss the claim only if, assuming all facts alleged to be true, plaintiff still fails to plead the basic elements of a cause of action.
The plaintiff began to work at Spin as an editorial intern during the summer of 1987, and she continued to work as a freelance writer from the Fall of 1988 until February 1990. From February 1990 to May 1990, the plaintiff worked at Spin as an Editorial Assistant; she began to work full-time at Spin as a Research Editor in May 1990 and as a member of the full-time editorial board from July 1990 until her resignation on November 24, 1993.
Taking the facts alleged in the complaint as true, the plaintiff claims that the defendants maintained a continuing and intentional policy of verbal and physical sexual harassment of female staff. More specifically, she alleges that Guccione, who is the publisher and editor of Spin, and other senior and supervisory staff engaged in inappropriate sexual behavior toward female staff by uttering inappropriate sexual comments. Plaintiff claims that a senior staff member no longer employed by Spin repeatedly and inappropriately touched her. The pervasiveness of this behavior against female staff, the plaintiff claims, created a hostile work environment that unreasonably interfered with her job performance.
In addition, the plaintiff alleges that the defendants maintained and engaged in a practice of sexual favoritism, because the plaintiff and other female staff at Spin were denied job benefits that otherwise would have been granted had they submitted to sexual advances by Guccione and other senior male editors. According to the plaintiff, this practice of sexual favoritism contributed to the presence of a hostile work environment.
The plaintiff also alleges that the defendants maintained an intentional policy and practice of gender discrimination in the form of disparate treatment in the distribution of assignments, promotions, and other employment-related benefits, including compensation and wages. The plaintiff alleges that she was paid less than men in comparable jobs; she also claims that she was paid less than men with fewer responsibilities and duties than herself. Additionally, the plaintiff alleges that the disparate treatment also was based on the willingness of female staff to submit to or ignore the sexual advances of male staff. On the basis of all of the above, the plaintiff claims that she was forced to resign her employment at Spin.
A. Intentional Infliction of Emotional Distress Claim
Plaintiff's action for intentional infliction of emotional distress is subject to a one-year statute of limitations under CPLR § 215. Plaintiff's original complaint was filed on October 25, 1994, but it failed to allege any conduct between October 25, 1993, and November 24, 1993, the date of plaintiff's resignation, that would give rise to a claim of intentional infliction of emotional distress. See Bonner v. Guccione, 1995 U.S. Dist. LEXIS 9567, *5, 1995 WL 442102, at *2 (S.D.N.Y. Mar. 24, 1995). Accordingly, this Court dismissed the claim but gave leave to amend the complaint with the following direction: to "identify specific acts within that last month [of plaintiff's employment] which reflect those continuing policies and practice" of sex discrimination that were alleged in the period outside the statute of limitations. Id.
The test to decide whether or not this suit falls within or without the statute of limitations is whether or not there was any conduct during the period within the statute that when combined with other conduct would have contributed to the emotional distress; in brief, a last event rule.
Defendants' motion to dismiss has two prongs. First, defendants argue that plaintiff has alleged no conduct within the statute of limitations period that in and of itself is actionable. Second, defendants contend that the continuing tort doctrine should not be applied to revive what, in their view, is a time-barred claim for intentional infliction of emotional distress. Plaintiff argues -- and defendants deny -- that this Court's March 24, 1995, decision adopted the continuing tort doctrine and is the law of the case. In essence, the questions to be decided on this issue are twofold: First, whether New York's one-year statute of limitations precludes consideration of conduct outside the limitations period in deciding whether a claim for intentional infliction of emotional distress has been made. Second, whether plaintiff's action for intentional infliction of emotional distress states a claim upon which relief can be granted.
Defendants' first prong essentially invites the Court's reconsideration of its March 24, 1995, ruling. Under the law of the case doctrine, because the Court "decided upon a rule of law, [that rule] should continue to govern the same issues in subsequent stages in the same case." Arizona v. California, 460 U.S. 605, 618, 75 L. Ed. 2d 318, 103 S. Ct. 1382 (1983); United States v. Uccio, 940 F.2d 753, 758 (2d Cir. 1991). The Court should not revisit a previous ruling absent "'extraordinary circumstances such as where the initial decision was clearly erroneous and would work a manifest injustice.'" North River Insurance Company v. Philadelphia Reinsurance Corp., 63 F.3d 160, 165 (2d Cir. 1995) (internal quotations omitted). Nevertheless, since the Court did not elaborate on the basis for its March 24 ruling, it is appropriate to discuss here the Court's analysis of the statute of limitations issue.
New York's highest court has not yet spoken on the issue of whether only conduct within the limitations period may be considered to decide whether a claim for intentional infliction of emotional distress has been timely made. In order to attempt to discern how that Court will decide the issue, the Court gives weight to published decisions by the Appellate Division. Gasperini v. Center for Humanities, Inc., 66 F.3d 427, 430 (2d Cir. 1995). The decisions of the Appellate Division are split, however, on this issue. In Foley v. Mobil Chemical Company, 214 A.D.2d 1003, 626 N.Y.S.2d 906 (4th Dep't 1995), the plaintiff alleged that defendants sexually harassed and discriminated against her. The Court rejected plaintiff's "continuing wrong" theory, which argued that "if any of the alleged intentional acts occurred within the period of limitations, prior acts are not time barred." Foley, 626 N.Y.S.2d at 907. The Court held that a cause of action for intentional infliction of emotional distress is solely limited to that conduct which occurred within the one-year period immediately preceding the commencement of the action; it subsequently found that the conduct within the year of filing was "wholly inappropriate" but not sufficiently outrageous to constitute a tort, and it ordered that the claim be dismissed. Id. at 907-08. See also Spitzer v. Shanley Corporation, 151 F.R.D. 264 (S.D.N.Y. 1993); Koster v. Chase Manhattan Bank, N.A., 609 F. Supp. 1191, 1198 (S.D.N.Y. 1985); Weisman v. Weisman, 108 A.D.2d 853, 485 N.Y.S.2d 570 (2d Dep't 1985). The Foley Court relied on Marshall v. Nelson Electric, 766 F. Supp. 1018, 1032 (N.D. Okl. 1991), aff'd, 999 F.2d 547 (10th Cir. 1993) cert. denied, 127 L. Ed. 2d 215, 114 S. Ct. 921 (1994) which, after surveying the case law in the various Circuits, construed Oklahoma law and reasoned that to consider conduct beyond the statute of limitations
would subject defendants to never-ending liability for such claims, which could at any time be triggered by non-extreme, non-outrageous, and non-tortious acts. Merely alleging that such non-actionable conduct was an extension of actionable conduct would resurrect stale time-barred conduct. Such a result would be fundamentally foreign to the purpose of statutes of limitations.