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SKEETE v. IVF AMERICA

July 25, 1997

DARIA SKEETE, Plaintiff, against IVF AMERICA, INC, GERARDO CANET and DWIGHT RYAN, Defendants.


The opinion of the court was delivered by: KOELTL

 JOHN G. KOELTL, District Judge:

 The plaintiff, Daria Skeete, filed this action against the defendants, IVF America, Inc. ("IVF"), Gerardo Canet, and Dwight Ryan, alleging that she was discriminated against on the basis of her race and sex in violation of both 42 U.S.C. § 2000e, et seq. ("Title VII") and N.Y. Human Rights Law § 290, and that she was retaliated against for filing a complaint with the Equal Employment Opportunity Commission ("EEOC"). Skeete also alleges that the defendants intentionally inflicted emotional distress upon her, and operated a continuing criminal enterprise in violation of 18 U.S.C. § 1962, et seq. ("RICO").

 Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the defendants move to dismiss portions of Skeete's complaint. The defendants move to dismiss as time-barred Skeete's Title VII claims and her intentional infliction of emotional distress claim. The defendants also move to dismiss Skeete's Title VII sex discrimination claim on the ground that this Court lacks subject matter jurisdiction over that claim. Finally, the defendant's move to dismiss Skeete's RICO claim for lack of standing.

 "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)).

 In deciding a motion to dismiss, the Court can consider the factual allegations in the complaint, documents incorporated in the complaint by reference, matters of which judicial notice may be taken, and documents either in the plaintiff's possession or of which she had knowledge and relied on in bringing suit. See Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993); Cortec Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 48 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S. Ct. 1561, 118 L. Ed. 2d 208 (1992); I. Meyer Pincus & Associates, P.C. v. Oppenheimer & Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991).

 Where a pro se litigant is involved, the same standards for dismissal apply. However, a "court should give the pro se litigant special latitude in responding to a motion to dismiss." See Adams v. Chief of Security Operations, 966 F. Supp. 210, 1997 U.S. Dist. LEXIS 7378, 1997 WL 282234, at *1 (S.D.N.Y. 1997). Accordingly, the following facts are accepted as true for purposes of this motion.

 I.

 On or about April 4, 1994, Skeete was hired by IVF as a Computer Information Systems Officer. (Complaint P1 at 2). On or about October 14, 1994, Skeete applied for a promotion. (Id. at P4). Skeete asserts that she was passed over for this position in favor of a substantially less qualified white male. (Id. at P5). Skeete then "notified" Ryan, IVF's Vice-President of Finance, that she should have been hired for this position. (Id. at P6).

 Skeete states that because she was not satisfied with the results of her conversation with Ryan, she filed an EEOC complaint alleging that she had been discriminated against on the basis of both race and sex. However, in filling out her first EEOC Charge, she only checked the box indicating that she had been discriminated against on the basis of her race. (January 10, 1995 EEOC Charge, attached as Exhibit B to Affidavit of Daria Skeete ("Skeete Aff.")).

 In her Charge, Skeete stated "I am Black. . . . In October 1994, I applied for a promotion . . .. However, a white male, who is less qualified than I, was selected for that position. I believe that I was discriminated [against] because of my Race (Black), in violation of Title VII of the Civil Rights Act of 1964, as amended." (Id.). In an affidavit attached to her EEOC Charge Skeete states "Given the fact that I am clearly more qualified, I believe that the reason why [another applicant] was selected for the position was because he is white. Also, out of 175 people in the company, there are only 8 Black women and out of those 8, only 2 (including myself) have college degrees. I am the only Black in the corporate office." (Id.).

 In asserting a claim for retaliation, Skeete alleges that on or about January 24, 1995, Ryan and Canet "began a course of harassment of Plaintiff based on her complaint of race and sex discrimination . . .." (Complaint at P11). As part of this harassment, Skeete alleges that the defendants erased her electronic mail files, limited her access to IVF's computer system, "humiliated, badgered and effectively demoted Plaintiff for filing her EEOC complaint," constantly searched her desk, and informed her orally and in writing that she was going to be terminated. (Id. at PP12-14). Skeete asserts that the defendants, by engaging in this same conduct, intentionally inflicted emotional distress upon her. (Id. at PP16-18).

 On March 24, 1995, Skeete filed a second EEOC Charge, in which she asserted that she had been retaliated against by the defendants. (March 24, 1995 EEOC Charge, attached as Exhibit D to Notice of Motion). On August 13, 1996, the EEOC sent a Right To Sue Letter to Skeete, informing her that she must file suit "WITHIN 90 DAYS [of her] receipt of this Notice . . .." (Right to Sue Letter, attached as Exhibit F to Notice of Motion). ...


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