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April 16, 1997


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff, Minerva Yaba, has filed two civil rights actions relating to her employment with the law firm Cadwalader, Wickersham & Taft ("Cadwalader"). In the first of these, 94 Civ. 5718 ("Complaint One"), Yaba asserts that she was discriminated against by Cadwalader on the basis of her sex, race and disability. She also alleges that Cadwalader retaliated against her for complaining about this discrimination.

 In the second action, 96 Civ. 5350 ("Complaint Two"), Yaba asserts racial harassment claims against Cadwalader and one of its senior partners, Haven C. Roosevelt, under 42 U.S.C. § 1981. In addition, Complaint Two asserts retaliation and retaliatory discharge claims, also under 42 U.S.C. § 1981, against Cadwalader, Roosevelt, and present and former Cadwalader employees Rodney S. Dayan, John E. Eichler, Maryanne F. Braverman, Patricia Clark Kiley, Lynn Fogarty, and unnamed members of Cadwalader's management committee. *fn1" All of these individual defendants, with the exception of Dayan and the unnamed members of the Management Committee, have now moved, pursuant to Rules 12(b)(6) and 12(c) of the Federal Rules of Civil Procedure, to dismiss all claims asserted against them in both actions. *fn2"


 The relevant facts for this motion are as follows. Complaint One was filed on August 5, 1994. The first cause of action in Complaint One, which arises under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), alleges that Cadwalader "discriminated against Plaintiff, an African American, female employee, with respect to the conditions, privileges, advantages and benefits of employment with the Firm. Specifically, the Firm paid and maintained Plaintiff at a salary that was generally less than the salary received by Caucasian employees of similar or less background, training, skills and experience." (94 Civ. 5718 Complaint at P13). As part of this first cause of action, Yaba also alleges that Cadwalader limited her employment and promotional opportunities because of her race. (Id.).

 Yaba's second cause of action in Complaint One was filed under the Americans with Disabilities Act of 1990 ("ADA"), 42 U.S.C. § 12101. Yaba alleges that she suffers from Carpal Tunnel Syndrome. (Id. at P16). She further alleges that this condition limits her ability to perform certain work related functions, but did not prevent her from completing the basic tasks required by her employment with Cadwalader. (Id.). While admitting that Cadwalader afforded her some accommodations based on her disability, Yaba asserts that Cadwalader refused to provide her with other reasonable accommodations, and therefore discriminated against her based on her disability. (Id. at P17).

 The fourth cause of action contained in Complaint One, asserted against both Roosevelt and Cadwalader, alleges that on January 15, 1993, Yaba was sexually assaulted and harassed by Roosevelt. (Id. at PP27-28). Yaba also asserts that she reported the incident to Cadwalader, but that no action was taken to correct the situation. (Id. at P30). She further asserts that Roosevelt's action and Cadwalader's failure to act on her complaint created a hostile working environment. (Id. at P31).

 Yaba's final cause of action alleges that she was retaliated against by Cadwalader for complaining about Roosevelt's conduct. Specifically, she alleges that she was retaliated against for filing a complaint with the Equal Employment Commission (EEOC). (Id. at P34). In stating her claim for retaliation, Yaba asserts that she was subjected to harsher treatment, harassment, threats and ultimately forced out of her job after making this complaint. (Id at PP34-35).

 Roosevelt moved to dismiss the fourth cause of action in Complaint One, the only cause of action in Complaint One asserted against him. This Court granted Roosevelt's motion because Title VII does not provide for individual liability. Yaba v. Cadwalader, Wickersham & Taft, 896 F. Supp. 352 (S.D.N.Y. 1995); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995).

 On January 8, 1996, Yaba moved to amend Complaint One to include both new claims and additional parties. See Yaba v. Cadwalader, Wickersham & Taft, 931 F. Supp. 271, 273 (S.D.N.Y. 1996). She sought to add as defendants members of Cadwalader's management committee as well as past and present Cadwalader employees. She moved for leave to assert claims against the individual defendants under both Title VII and the ADA. See id. Yaba also sought to bring claims against Roosevelt for retaliatory discharge, tortious interference with contract, and violations of 42 U.S.C. §§ 1981 and 1983. See id. at 273-74. Finally, Yaba also sought to amend Complaint One to allege that employees of Cadwalader committed "gross negligence" against her. See id. at 274.

 On July 19, 1996, this Court denied Yaba leave to amend Complaint One. This Court found that the ADA and Title VII claims Yaba sought to bring against the individual defendants were futile because those statutes do not provide for individual liability. Id. at 274. This Court also found that Yaba's § 1983 claim was futile because Roosevelt was not a state actor. Id. Moreover, this Court determined that Yaba's § 1981 claims were futile because Yaba had alleged in her proposed Amended Complaint that she had been discriminated against on the basis of sex and § 1981 does not prohibit discrimination based on sex. Id. at 274-75. This Court also held that Yaba's tortious interference claim and gross negligence claims were futile and declined to exercise supplemental jurisdiction over the remaining state law claims. Id. at 275.

 This Court stated that Yaba's motion could also be denied based both on her undue delay in seeking to amend the complaint, and the prejudice suffered by the defendants as a result of this delay. Id. at 275. The Court noted that one and one half years had passed between the filing of Complaint One and Yaba's motion to amend, and that three years had passed between the incidents of alleged harassment and Yaba's motion. Id. at 276.

 On July 18, 1996, one day before this Court issued its decision denying Yaba leave to amend Complaint One, Yaba filed Complaint Two, which was initially assigned to another judge and therefore had to be transferred to this Court as a related case. Complaint Two asserts three causes of action under § 1981. Yaba has now added allegations of racial animus to some of the same events previously alleged. Yaba now alleges that "she was purposefully and intentionally discriminated against on the account of her race, color of skin or national origin; that she was singled-out and suffered unlawful oppression in contrast with other similarly situated non-minority groups who were treated more favorably." (96 Civ. 5350 Complaint at P6). Yaba further alleges that "she suffered sexual assault and sexual harassment at the hands of [Roosevelt], a senior partner of [Cadwalader], on account of her race; that she was retaliated against by partners, associates, supervisors, [and] co-workers in a systematic manner for reporting these claims to the proper in-house authorities" (Id. at P7). Yaba also asserts that she was eventually forced out of her job because of her race. (Id.).

 In her first claim in Complaint Two, Yaba asserts a harassment claim against Roosevelt and Cadwalader under § 1981. Yaba alleges that on or about January 15, 1993, Roosevelt sexually harassed her. (Id. at PP18-19). Yaba asserts that during this incident Roosevelt made a racially suggestive remark. Yaba also asserts that on or about January 26, 1993, another incident of harassment occurred. (Id. at P21). Yaba further alleges that on or about March 10, 1993 she mailed a letter of complaint about Roosevelt's conduct to defendant John E. Eichler, who was Executive Director of Human Resources at Cadwalader at that time. (Id. at PP13, 22). Yaba asserts that Cadwalader took no steps to address her complaint.

 Yaba alleges that on or about April 7, 1993, she received an unfair and inaccurate performance review from defendant Kiley, who was Director of Secretarial Services and Wordprocessing at Cadwalader at that time. (Id. at P15, 23). Yaba further alleges that on January 10, 1994, she was once again harassed by Roosevelt. (Id. at P25). She asserts that she encountered Roosevelt in an elevator and attempted to get off the elevator to avoid him. (Id.). According to Yaba, Roosevelt laughed and leered at her. (Id.) Yaba asserts that this harassment was motivated by racial animus. (Id.).

 In her second claim in Complaint Two, Yaba asserts a claim for retaliation against Cadwalader, Roosevelt and the individual defendants. Yaba alleges that various actions by the individual defendants harassed and intimidated her and caused her emotional injuries. (Id. at PP33-45). Yaba also asserts that Roosevelt retaliated against her by harassing her after she first complained to Eichler. (Id. at P44). Finally, in the third claim, Complaint Two alleges that Roosevelt, Cadwalader, Dayan and other members of the management committee retaliatorily discharged Yaba. Yaba asserts that she was discharged by Braverman on January 18, 1994 and that she was discharged as a result of her complaints against Roosevelt. (Id. at PP51-52).


 "When deciding a motion to dismiss an action for failure to state a claim upon which relief may be granted, the court 'must accept the material facts alleged in the complaint as true.'" Staron v. McDonald's Corp., 51 F.3d 353, 355 (2d Cir. 1995) (quoting Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994)). The court "must not dismiss the action 'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of [the plaintiff's] claim which would entitle [the plaintiff] to relief.'" Cohen, 25 F.3d at 1172 (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)). "The court's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient." Festa v. Local 3 International Brotherhood of Electrical Workers, 905 F.2d 35, 37 (2d Cir. 1990) (citing Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985)). The same standard applies to a motion for judgment on the pleadings. See Village on Canon, 1997 U.S. Dist. LEXIS 1112, 1997 WL 47804 *1 (S.D.N.Y. 1997) (citing National Association of Pharmaceutical Manufacturers, Inc., 850 F.2d 904, 909 n.2 (2d Cir. 1988)).


 In its motion to dismiss, Cadwalader asserts that the first and third causes of action asserted by Yaba in Complaint One, which allege violations of Title VII, should be dismissed. Cadwalader argues that these disparate treatment causes of action fail to state claims upon which relief can be granted. It is well established that to state a disparate treatment claim under Title VII the plaintiff must demonstrate 1) that she belongs to a protected class; 2) that she suffered adverse employment action; and (3) the adverse employment action occurred "in circumstances giving rise to an inference of racial discrimination." Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 464 (2d Cir. 1989) (citing Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188 (2d Cir. 1987)); see also Hargett v. National Westminster Bank, USA, 78 F.3d 836, 838 (2d Cir. 1996); Fisher v. Vassar College, 70 F.3d 1420, 1433 (2d Cir. 1995).

 In asserting that Yaba's Title VII disparate treatment causes of action fail to state claims upon which relief can be granted, Cadwalader argues that Yaba's claims are too conclusory in that Yaba has merely offered "naked assertions" that she was discriminated against because of her race, but has not presented any facts that justify an inference of racial animus. In making this argument, Cadwalader cites Yusuf v. Vassar College, 35 F.3d 709, 714 (2d Cir. 1994), a case in which a plaintiff, without alleging any additional facts, claimed that a facially neutral decision by a university was motivated by his race. Id. at 714 (despite considerable evidence that he was guilty, a Bengali student alleged that his being found guilty of sexual harassment by a university disciplinary committee was motivated by racial animus).

 Yaba does not allege that a seemingly racially neutral adverse employment action was in fact motivated by race. Instead, Yaba asserts that she was paid less than similarly situated Caucasian employees. Thus, Yaba's allegation of discrimination, unlike the assertion in Yusuf, alleges circumstances, specifically her being paid less than comparable Caucasian employees and being subjected to other differential work conditions, such as different supervision than Caucasian employees, that provides an inference of racial discrimination.

 Yaba's claims more closely resemble the assertions in Gant v. Wallingford Board of Education, 69 F.3d 669 (2d Cir. 1995), than those in Yusuf. In Gant, the Court of Appeals for the Second Circuit found that the plaintiffs' allegations that their son had not been promoted in school, because of his race, while non-African-American students had been promoted, even without any additional factual assertions, constituted more than "naked assertions," and therefore survived a motion to dismiss. Gant, 69 F.3d at 673. Because, under the reasoning of Gant, ...

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