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BARCHER v. NEW YORK UNIV. SCH. OF LAW

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

 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 ...


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