actions against him: (1) on November 11, 1993, Mahoney arbitrarily denied plaintiff's request for time off at Thanksgiving; (2) after sustaining an injury on March 25, 1994 requiring plaintiff to take a leave of absence from work, he requested that his position be held pending his return. This request was denied; (3) on May 30, 1995, plaintiff was unfairly subjected to formal counseling, and was threatened with having a seventy-four page reprimand placed in his personnel file; the reprimand later was reduced to four pages and placed in his file.
B. Procedural History
On April 1, 1996, plaintiff filed his Complaint alleging: (1) sexual harassment in violation of Title VII and the HRL; (2) retaliation in violation of Title VII and the HRL; and (3) intentional infliction of emotional distress. On December 10, 1996, defendant moved to dismiss plaintiff's complaint. Plaintiff has cross moved for leave to amend the Complaint.
A. Defendant's Motion for Judgment on the Pleadings
1. Standard Under Fed.R.Civ.P. 12(c)/12(b)(6)
Defendant moves for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), 12(b)(1) and 12(b)(6), based upon lack of subject matter jurisdiction and failure to state a claim upon which relief may be granted. (Def. Notice of Motion at 1). Where a motion for judgment on the pleadings is based on the defense of failure to state a claim upon which relief may be granted, see Fed.R.Civ.P. 12(h)(2), the Court will treat the motion as one to dismiss. See National Association of Pharmaceutical Manufacturers. Inc., 850 F.2d 904, 909 n. 2 (2d Cir. 1988)).
"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 should not dismiss on a Rule 12(b)(6) motion unless it appears clear that the plaintiff cannot in any way establish a set of facts to sustain his claims which would permit relief. Hughes v. Rowe, 449 U.S. 5, 10, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986).
It is in light of these considerations that plaintiff's Complaint is examined.
2. Sexual Harassment
Defendant first argues that plaintiff's claims of sexual harassment must be dismissed. Since the same legal standards apply to sexual harassment claims under Title VII and the HRL, the Court's analysis applies to both statutes. Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir. 1996) (citing Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745 (1985)).
Plaintiff's Complaint may be construed as alleging hostile work environment sexual harassment. To establish such a claim, plaintiff must show: "(1) that his workplace was permeated with discriminatory intimidation that was sufficiently severe or pervasive to alter the conditions of his work environment, and (2) that a specific basis exists for imputing the conduct that created the hostile environment to the employer." Murray v. New York University College of Dentistry, 57 F.3d 243, 249 (2d Cir. 1995).
As to the first prong of this analysis, "actionable sexual harassment must consist of more than isolated incidents or casual comments that express harassment or hostility." Babcock v. Frank, 783 F. Supp. 800, 808 (S.D.N.Y. 1992). Rather, "the harassment at issue must be 'sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment.'" Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 63 (2d Cir. 1992) (quoting Meritor Savings Bank FSB v. Vinson, 477 U.S. 57, 67, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986)). Moreover, the employee must subjectively perceive the environment to be abusive, and the environment must be one that a reasonable person would find hostile or abusive. Harris v. Forklift Sys., Inc., 510 U.S. 17, 22, 126 L. Ed. 2d 295, 114 S. Ct. 367 (1993).
Plaintiff's only allegation of sexual harassment is the incident in which Mahoney and McCabe confronted him with the obscene picture. This allegation clearly is insufficient to state a claim for hostile work environment sexual harassment. As a general rule, "isolated acts or occasional episodes will not merit relief." Kotcher, 957 F.2d at 63 (citing Carrero v. New York City Housing Authority, 890 F.2d 569, 577 (2d Cir. 1989)). Of course, allegations of a single incident involving physical or sexual assault may be sufficient, see Tomka, 66 F.3d at 1305, but plaintiff's claim in the present case involves no such allegations. At best, plaintiff's claim is premised upon harassment which was neither verbal nor physical (see Compl. P 13) ("'Throughout this meeting,  Mahoney and  McCabe . . . exchanged glances and smiles with one another, which further added to the belittling environment"), and which occurred on a single occasion. Based upon these allegations, "no reasonable fact finder could conclude that the incident created a hostile or abusive work environment." Galvez v. Means, 1996 U.S. Dist. LEXIS 12449, *6, 1996 WL 487962 at *2 (S.D.N.Y. 1996) (offensive comments uttered during one isolated incident insufficient to state a claim for hostile work environment sexual harassment).
Moreover, plaintiff's proposed amendments to his sexual harassment allegations are futile. Plaintiff alleges that following the October 19, 1993 meeting, McCabe and Mahoney discussed the meeting with their co-workers. (Am. Compl. P 15). He goes on to allege that "the presentation of the drawing . . . and the accusation that he was the author became a topic of discussion in the office subjecting plaintiff to further and widespread humiliation . . .". (Id.), and that the incident was discussed at other meetings with plaintiff's co-workers. These vague, generalized allegations, betraying not a hint of the severity or pervasiveness necessary for actionable sexual harassment, do nothing to revive plaintiff's hostile work environment claim. Therefore, defendant's motion for judgment on the pleadings is granted as to plaintiff's claim of sexual harassment.
Plaintiff also alleges that retaliatory action was taken against him for complaining of the alleged sexual harassment.
To state a prima facie claim of retaliation, plaintiff must establish: 1) that he participated in a protected activity known to defendant; 2) that his employer took adverse employment action against him; and 3) that there exists a causal link between the protected activity and the adverse employment action. Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996); Kotcher, 957 F.2d at 64.
Plaintiff alleges that on October 21, 1993, he filed complaints with his employer and his union, apparently regarding the confrontation with Mahoney and McCabe. Such an allegation is sufficient to establish the first element of the prima facie case. Tomka, 66 F.3d at 1308; Kotcher, 957 F.2d at 65. Furthermore, the denial of plaintiff's request for time off at Thanksgiving (Compl. P 16), the denial of his request that his position be held pending his return (Compl. P 18), and the placement of the reprimand in his personnel file (Compl. P 19) each qualify, for the purposes of this motion, as adverse employment actions.
See Dortz v. City of New York, 904 F. Supp. 127, 155 (S.D.N.Y.1995) (adverse employment action is one which "affected the terms, privileges, duration, or conditions of [plaintiff's] employment"). Finally, plaintiff sufficiently has alleged that such actions were taken in retaliation for his filing of the complaints. (Compl. P 16, 18, 19). Thus, defendant's motion for judgment on the pleadings is denied as to plaintiff's retaliation claim.
4. Rehabilitation Act/Americans With Disabilities Act
In his proposed Amended Complaint, plaintiff adds claims under the Rehabilitation Act of 1973, 29 U.S.C.A. § 701 et seq., and the Americans With Disabilities Act of 1990 ("ADA"), 42 U.S.C.A. § 12101 et seq. To state a prima facie claim under either of these acts, plaintiff must allege
(1) that the employer is subject to the statute under which the claim is brought, (2) that she is an individual with a disability within the meaning of the statute in question, (3) that, with or without reasonable accommodation, she could perform the essential functions of the job, and (4) that the employer had notice of the plaintiff's disability and failed to provide such accommodation.