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BARCHER v. NEW YORK UNIV. SCH. OF LAW

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK


August 26, 1997

ANN C. BARCHER, Plaintiff, against NEW YORK UNIVERSITY SCHOOL OF LAW, JOHN SEXTON, as Dean and Individually, OSCAR CHASE, as Vice Dean and Individually, NORMAN DORSEN, as Faculty Member and Individually, Defendants.

The opinion of the court was delivered by: GRUBIN

REPORT AND RECOMMENDATION TO THE HONORABLE PETER K. LEISURE

 SHARON E. GRUBIN, United States Magistrate Judge:

 Plaintiff pro se brings this action against New York University Law School ("the law school") and three of its employees, alleging that defendants violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), by discriminating against plaintiff on the basis of gender and retaliating against her for complaining about the discrimination. Pending are defendants' motions to dismiss the complaint for failure to state a claim under Fed. R. Civ. P. 12(b)(6), for untimely service under Fed. R. Civ. P. 4(m) and for abuse of in forma pauperis status under 28 U.S.C. § 1915(e). They also seek to strike immaterial and scandalous material in the complaint under Fed. R. Civ. P. 12(f). For the reasons set forth below, I respectfully recommend that the complaint be dismissed for failure to state a claim.

 BACKGROUND

 Plaintiff's form complaint claims that defendants violated Title VII and the Age Discrimination in Employment Act, as amended, 29 U.S.C. §§ 621 et seq., by failing to hire her as Executive Director of the law school's Global Law Program and by retaliating against her for complaining to the law school administration about the discriminatory conduct. *fn1" The factual allegations underlying these claims are set forth in four paragraphs, the first of which alleges that plaintiff applied for the position on September 29, 1994, believing that she was "very well qualified" and not knowing "who would supervise this position or evaluate the applications." Complaint P 8, Attachment A. The remaining three paragraphs are as follows:

 

On October 13, 1994, I received additional information from NYU about the Global Law Program. I was very distressed to learn that Dean Sexton had appointed Professor Dorsen to supervise the Program. In 1975 when I was in my second year at NYU Law School and a student in Dorsen's class, on two occasions Dorsen had forcibly raped me. Subsequently he had made a number of sexually harassing remarks, including the boast that he always made women who worked for him submit to sex with him.

 

On October 13, 1994, I called Dean Sexton's Office, and the following day my call was returned by Vice Dean Chase. Chase, whose duties included evaluating applications along with Dorsen, advised me to write a letter withdrawing my application. Before I could act because of emotional distress, NYU sent me a form letter dated October 21, 1994, rejecting my application.

 

On or about November 2, 1994, I met with Sexton and Chase in the Dean's Office. At the beginning of the meeting, before I had a chance to present my case, Sexton informed me that he had already spoken to two women, neither of whom knew me, about my allegations. He had also asked Dorsen, who allegedly replied, "Nothing happened." Based on these conversations, Sexton announced that he would take no further action on the matter and rejected my requests for an independent investigation. On information and belief, the Dean failed to follow NYU's own internal policies and regulations on sexual harassment.

 Id. In a footnote plaintiff further alleges that on February 15, 1995, "one of Sexton's two female informants had lunch with me and told me Dorsen had admitted 'having sex' with me." Id., n.2.

 On May 22, 1995, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC"), the first page of which is attached to the complaint. Complaint, Attachment B. The allegations contained in the Charge are largely the same as those contained in the complaint. It specifically alleges that plaintiff told Chase about the alleged 1975 rapes during their October 14 conversation and states that a man was ultimately selected for the position. It concludes, "I believe the Director of the Global Law Program did not select me because I complained." Id. The EEOC dismissed the charge, finding plaintiff had failed to state a claim under either Title VII or the ADEA, and issued plaintiff a "Right to Sue" letter.

 Plaintiff timely filed her complaint herein together with a form Application for Appointment of Counsel stating, in pertinent part:

 

Although a member of the Bar, my experience is primarily in real estate and immigration. I have NO experience as a litigator and have never tried a case in federal court.

 DISCUSSION

 1. Standards under Fed. R. Civ. P. 12(b)(6)

 In determining whether to grant a motion to dismiss for failure to state a claim under Rule 12(b)(6), a court must accept the factual allegations in the complaint as true and draw all reasonable inferences in favor of the plaintiff. Leatherman v. Tarrant County Narcotics Intelligence & Coordination Unit, 507 U.S. 163, 164, 122 L. Ed. 2d 517, 113 S. Ct. 1160 (1993); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992), cert. denied, 507 U.S. 961, 122 L. Ed. 2d 762, 113 S. Ct. 1387 (1993) and 507 U.S. 972 (1993); Ad-Hoc Committee of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d 980, 982 (2d Cir. 1987). "Consideration is limited to the factual allegations in [the] complaint, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs' possession or of which plaintiffs had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). A complaint should not be dismissed unless, "after viewing plaintiff's allegations in this favorable light, it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Walker v. City of New York, 974 F.2d at 298 (quotation omitted). See Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir.), cert. denied, 513 U.S. 816, 130 L. Ed. 2d 28, 115 S. Ct. 73 (1994); Ad-Hoc Committee of Baruch Black and Hispanic Alumni Ass'n v. Bernard M. Baruch College, 835 F.2d at 982. Moreover, pro se complaints are to be liberally construed and given even greater latitude than complaints drafted by lawyers. See Hughes v. Rowe, 449 U.S. 5, 9, 66 L. Ed. 2d 163, 101 S. Ct. 173 (1980) (per curiam); Haines v. Kerner, 404 U.S. 519, 520-21, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972) (per curiam); Salahuddin v. Coughlin, 781 F.2d 24, 28 (2d Cir. 1986).

 2. The Sex Discrimination Claim

 In employment discrimination cases, the burden of establishing a prima facie case is "not onerous"; indeed, it is "frequently described as 'minimal.'" Fisher v. Vassar College, 114 F.3d 1332, 1335 (2d Cir. 1997) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993)). Defendants argue that plaintiff has not alleged facts sufficient to establish a prima facie failure to hire claim. Defendants' Memorandum, pp. 6-10. Plaintiff argues that defendants have misapprehended her theory, asserting "plaintiff's complaint clearly sets forth a claim of quid pro quo sexual harassment." Plaintiff's Memorandum, p. 7. After quoting the EEOC Guidelines, 29 C.F.R. § 1604.11(a), which state in pertinent part that "unwelcome sexual advances [and] requests for sexual favors...constitute sexual harassment when...submission to such conduct is made either explicitly or implicitly a condition or term of an individual's employment," plaintiff states:

 

The gravamen of plaintiff's complaint is that defendant Dorsen had made such "unwelcome sexual advances" or "requests for sexual favors" "explicitly or implicitly a term or condition of [ ] employment." His sexual harassment of plaintiff, commencing with two forcible rapes in 1975, had continued with verbal harassment or solicitations over a period of nearly twenty years. Defendant Dorsen had explicitly told plaintiff that he required women who worked with him to submit to sex and had identified one of her co-workers as one of his "conquests." Therefore, when plaintiff discovered that Dorsen was supervising the Global Law Program, she had every reason to believe that submitting to sex with him would be "either explicitly or implicitly a term or condition" of her employment.

 Plaintiff's Memorandum, pp. 7-8. *fn2"

 "Quid pro quo" is one of two theories under which a plaintiff seeking relief for sexual harassment may presently proceed. Torres v. Pisano, 116 F.3d 625, 630 (2d Cir. 1997); Karibian v. Columbia Univ., 14 F.3d 773, 777 (2d Cir.), cert. denied, 512 U.S. 1213, 129 L. Ed. 2d 824, 114 S. Ct. 2693 (1994); see Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64-65, 91 L. Ed. 2d 49, 106 S. Ct. 2399 (1986). To establish a prima facie case of quid pro quo sexual harassment, a plaintiff must show (1) that she was subject to unwelcome sexual conduct or an unwelcome sexual advance and (2) that her reaction to that conduct was used as the basis for an employment decision. Corrigan v. LaBrum & Doak, 1997 U.S. Dist. LEXIS 1850, No. 95 Civ. 6471 (PKL), 1997 WL 76524 (S.D.N.Y. Feb. 21, 1997); Karibian v. Columbia Univ., 14 F.3d at 777. The employer of a quid pro quo harasser is strictly liable for the employee's conduct because the harasser, by definition, either actually or apparently wields the employer's authority to alter the terms and conditions of employment. Karibian v. Columbia Univ., 14 F.3d at 777; see also Torres v. Pisano, 116 F.3d at 633; Kotcher v. Rosa and Sullivan Appliance Center, Inc., 957 F.2d 59, 62 (2d Cir. 1992); Carrero v. New York City Housing Authority, 890 F.2d 569, 579 (2d Cir. 1989).

 Plaintiff's complaint does not state a prima facie claim for quid pro quo sexual harassment. The gravamen of plaintiff's claim is that Dorsen and the other defendants rejected her for the position because she complained, in light of Dorsen's prior conduct, that he was to be the supervisor of the program. The complaint, even liberally construed, cannot be seen as alleging that the adverse employment decision was a result of plaintiff's having refused or otherwise reacted to Dorsen's alleged prior sexual advances or misconduct. She explains that "when [she] discovered that Dorsen was supervising the Global Law Program, she had every reason to believe that submitting to sex with him would be 'either explicitly or implicitly a term or condition' of her employment." Plaintiff's Memorandum, p. 8 (emphasis added). This explanation, together with the fact that plaintiff called the law school to voice her complaint immediately upon learning that Dorsen would supervise the position, highlights the defective nature of plaintiff's theory. Plaintiff anticipated, based on her alleged prior dealings with defendant Dorsen, that he would not hire her for the position unless she submitted to sex with him and therefore lodged her complaint before any adverse action had actually occurred. Plaintiff's theory is premised on the misapprehension that this implicit threat of an adverse decision could give rise to a cause of action for sexual harassment. See Watts v. New York City Police Dept., 724 F. Supp. 99, 104 (S.D.N.Y. 1989). Plaintiff furthermore confirms in her exegesis of her complaint that her claim is that Dorsen "did not select me because I complained." Thus, her first claim is simply that which she seeks to advance as a second claim, that her rejection for the position was in retaliation for her having exercised her right to complain about Dorsen's being the supervisor of the program rather than her having objected to some unwelcome sexual conduct.

 For the above reasons, plaintiff's first claim should be dismissed.

 3. The Retaliation Claim

 Under Section 704(a) of Title VII, as amended, 42 U.S.C. § 2000e-3(a), it is unlawful "for an employer to discriminate against any of its employees or applicants for employment... because [they have] opposed any practice made an unlawful employment practice by [Title VII]." To establish a prima facie case for retaliation, a plaintiff must show (1) she was engaged in a protected activity; (2) the employer was aware of that activity; (3) plaintiff suffered an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse employment action. Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1178 (2d Cir. 1996); Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988); Castro v. Local 1199, Nat'l Health and Human Services Employees Union, 964 F. Supp. 719, 729 (S.D.N.Y. 1997).

 A "protected activity" includes the registering of a complaint of a Title VII violation, which "need not take the form of a formal claim filed with a court or administrative agency... [but] may simply be an objection voiced to the employer." Iannone v. Frederic R. Harris, Inc., 941 F. Supp. 403, 410 (S.D.N.Y. 1996); see Grant v. Hazelett Strip-Casting Corp., 880 F.2d 1564, 1569 (2d Cir. 1989). A plaintiff need not establish that the conduct she opposed was in fact a violation of Title VII, but must establish that she had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d at 593. As explained in Little v. United Technologies, 103 F.3d 956 (11th Cir. 1997);

 

It is critical to emphasize that a plaintiff's burden under this standard has both a subjective and an objective component. A plaintiff must not only show that he subjectively (that is, in good faith) believed that his employer was engaged in unlawful employment practices, but also that his belief was objectively reasonable in light of the facts and record presented. It thus is not enough for a plaintiff to allege that his belief in this regard was honest and bona fide; the allegations and record must also indicate that the belief, though perhaps mistaken, was objectively reasonable.

 103 F.3d at 960 (emphasis in original). See also Reed v. A.W. Lawrence & Co., Inc., 95 F.3d at 1178; Manoharan v. Columbia Univ. College of Physicians & Surgeons, 842 F.2d at 593; Gostanian v. Bendel, 1997 U.S. Dist. LEXIS 5620, No. 96 Civ. 1781 (LAP), 1997 WL 214966 at *9 (S.D.N.Y. April 25, 1997).

 The determination of whether a good faith, reasonable belief exists is based, in part, on an assessment of the plaintiff's legal sophistication. Iannone v. Frederic R. Harris, Inc., 941 F. Supp. at 410. Accordingly, "an attorney...will be held to a higher level of expertise about Title VII than a layperson," even if that attorney is not an employment lawyer. Id.; see Harvey v. Chevron U.S.A., Inc., 961 F. Supp. 1017, 1033 (S.D. Tex. 1997) (dismissing a retaliation claim by an attorney who conceded she was "not a Title VII lawyer" and never "read or researched this area of the law" on grounds that her claims were based on "nothing more than office gossip and her own speculation" which, the court ruled, were "not the basis upon which a reasonable person, much less an attorney, would voice a complaint of unlawful employment practices.")

 Here, there is no doubt that plaintiff registered a complaint about a perceived Title VII violation by voicing the objection to the Vice Dean of the law school on October 14, 1994. *fn3" However, no reasonable person, much less an attorney, could have had a reasonable belief that she had a valid Title VII claim as of that date. She called the law school immediately after receiving information indicating that defendant Dorsen was in charge of the Global Law Program. She complained of his being the supervisor because of his past alleged sexual misconduct. At that time, neither Dorsen nor anyone else at the law school had acted on her application. Rather, as she, herself, explains, "when plaintiff discovered Dorsen was supervising the Global Law Program, she had every reason to believe that submitting to sex with him would be "made a term of her employment." As she thus acknowledges, no unlawful employment practice under Title VII had occurred about which she was complaining. It was only her speculation that one would occur, i.e., that engaging in sex would be made a condition of her employment. See Watts v. New York City Police Dept., 724 F. Supp. at 104. Under these circumstances, plaintiff cannot establish that she was engaging in "protected activity," and I recommend that this claim also be dismissed.

 4. Appointment of Counsel

 I did not act previously on plaintiff's request for appointment of counsel because it had to await my review of the case. Upon review, it became clear that appointment was unwarranted, and I have accordingly issued this Report and Recommendation without appointing counsel for her. A court should exercise its discretion to appoint counsel only in cases where plaintiff has made a "threshold showing of some likelihood of merit." Cooper v. A. Sargenti Co., 877 F.2d 170, 174 (2d Cir. 1989); see Hodge v. Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986). "Even where claims are not frivolous, counsel is often unwarranted where [plaintiff's] chances of success are extremely slim." Hodge v. Police Officers, 802 F.2d at 60 (quoting Maclin v. Freake, 650 F.2d 885, 887 (7th Cir. 1981)). If the plaintiff's position seems likely to be of substance, the court is also to consider:

 

the indigent's ability to investigate the crucial facts, whether conflicting evidence implicating the need for cross-examination will be the major proof presented to the fact finder, the indigent's ability to present the case, the complexity of the legal issues and any special reason in that case why appointment of counsel would be more likely to lead to a just determination.

 Id., 802 F.2d at 61-62.

 As discussed above, plaintiff's case fails to state a claim, and that failure arises from the factual basis of her purported claims rather than defects in the pleading of them, inability to express herself or inability to investigate the situation. No attorney can change the events that occurred. I note, moreover, that plaintiff is a lawyer admitted to the New York bar with J.D. and LL.M degrees. Although she may not be a litigator or a specialist in employment law, her facility with the legal concepts herein and apparent research into them and her legal abilities are shown in her articulate memorandum opposing defendants' motions.

 CONCLUSION

 Given the foregoing determinations, we need not address defendants' additional motions seeking dismissal for untimely service and for abuse of the in forma pauperis statute and striking immaterial and scandalous material. I note, simply, based upon my review, that each is without merit. I note additionally, however, that the motions to dismiss each of the individual defendants are meritorious since individuals cannot be held personally liable under Title VII. See Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995). I express no opinion as to the viability of any state law causes of action plaintiff may wish to pursue in the New York State courts.

 For the reasons discussed above, I recommend that the defendants' motions to dismiss this action pursuant to Rule 12(b)(6) be granted. *fn4"

 Copies of this Report and Recommendation were mailed to:

 

Ann C. Barcher, Esq.

 

433 Clinton St.

 

Brooklyn, N.Y. 11232

 

S. Andrew Schaffer, Esq.

 

70 Washington Square South

 

New York, N.Y. 10012

 The parties are hereby directed that if you have any objections to this Report and Recommendation you must, within ten (10) days from today, make them in writing, file them with the Clerk of the Court and send copies to the Honorable Peter K. Leisure, to the opposing party and to the undersigned. Failure to file objections within ten (10) days will preclude later appellate review of any order that will be entered by Judge Leisure. See 28 U.S.C. § 636(b)(1); Rules 6(a), 6(e), and 72(b) of the Federal Rules of Civil Procedure; Thomas v. Arn, 474 U.S. 140, 88 L. Ed. 2d 435, 106 S. Ct. 466 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993), cert. denied, 513 U.S. 822, 130 L. Ed. 2d 38, 115 S. Ct. 86 (1994); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir.), cert. denied, 506 U.S. 1038, 121 L. Ed. 2d 696, 113 S. Ct. 825 (1992); Small v. Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989)(per curiam); McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983) (per curiam).

 Dated: New York, New York

 August 26, 1997

 Respectfully submitted,

 SHARON E. GRUBIN

 United States Magistrate Judge


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