The opinion of the court was delivered by: SEYBERT
Pending before the Court are defendants' separate motions to dismiss certain causes of action in plaintiff's complaint pursuant to Federal Rule of Civil Procedure 12(b)(6).
The following facts are set forth in plaintiff's complaint, and are therefore accepted as true in analyzing the defendants' motions to dismiss.
Plaintiff alleges that while she was working in defendant Markowitz' department, she was subjected to (1) repeated improper comments about her sex life; (2) repeated comments about the "hot girls" in the office; (3) repeated offers to view and rub a co-worker's tatoo on his pelvis region; (4) a comment about a co-worker's penis; (5) a sexual proposition targeting her sister; and (6) numerous other offensive incidents. In addition, plaintiff alleges that defendant Computer Associates subjected all the female employees to a discriminatory work environment with diminished opportunities and less favorable assignments and working conditions, including requiring the females to work substantially longer hours. When Ms. Stordeur met with defendant Markowitz to discuss the discriminatory practices, Markowitz purportedly retaliated by threatening termination, ordering plaintiff to perform menial tasks outside her job assignment and verbally humiliating plaintiff in front of janitorial staff. Moreover, soon thereafter, Markowitz gave Stordeur an unsatisfactory job performance review. Based solely upon these discriminatory acts and the failure of defendants Markowitz and Computer Associates to undertake an investigation or to change the harassing behavior, Ms. Stordeur was forced to terminate her employment in March 1995.
On or about November 1, 1995, plaintiff filed a formal complaint with the Equal Employment Opportunity Commission (the "EEOC"), and received a Notice of Right to Sue letter on June 27, 1996.
Plaintiff avers the following legal claims as against defendant Computer Associates (1) quid pro quo sexual harassment under Title VII; (2) hostile work environment sexual harassment under Title VII; (3)constructive termination under Title VII; (4) gender discrimination under Title VII; and (5) negligent hiring and supervision of defendant Markowitz and negligent investigation of plaintiff's claims.
Plaintiff avers the following legal claims as against both defendants Computer Associates and Markowitz: (1) gender discrimination and retaliation under New York Executive Law §§ 296.1, 296.6, and 296.7, the New York Human Rights law; (2) intentional and reckless infliction of extreme emotional distress; (3) slander and slander per se. Finally, plaintiff requests damages in an amount totaling $ 13,000,000.00, to be decided by a jury.
Defendant Computer Associates moves to dismiss certain of plaintiff's claims on the grounds that those causes of action fail to state a claim upon which relief can be granted; specifically Stordeur's claim for: (1) intentional and reckless infliction of extreme emotional distress, denominated cause of action number six in plaintiff's complaint; (2) negligence, denominated cause of action number seven in plaintiff's complaint; and (3) slander and slander per se, denominated cause of action number eight in plaintiff's complaint.
Defendant Markowitz moves to dismiss certain of plaintiff's claims on the grounds that those causes of action fail to state a claim upon which relief can be granted. Specifically, Markowitz moves to dismiss Stordeur's claim for: (1) sexual harassment violations of New York Executive Law §§ 296.1, 296.6, and 296.7, denominated cause of action number five in plaintiff's complaint; (2) intentional and reckless infliction of extreme emotional distress, denominated cause of action number six in plaintiff's complaint; and (3) slander and slander per se, denominated cause of action number eight in plaintiff's complaint.
I. STANDARDS GOVERNING A 12(B)(6) MOTION TO DISMISS
A district court should grant a motion to dismiss under Fed. R. Civ. P. 12(b)(6) for failure to state a claim only if "'it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" H.J. Inc. v. Northwest Bell Tel. Co., 492 U.S. 229, 249-50, 109 S. Ct. 2893, 2906, 106 L. Ed. 2d 195 (1989)(quoting Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S. Ct. 2229, 2232, 81 L. Ed. 2d 59 (1984)); Annis v. County of Westchester, N.Y., 36 F.3d 251, 253 (2d Cir. 1994).
In applying this standard, a district court must "read the facts alleged in the complaint in the light most favorable" to the plaintiff, and accept these allegations as true. H.J. Inc. at 249, 109 S. Ct. at 2906; Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Christ Gatzonis Elec. Contractor, Inc. v. New York City Sch. Constr. Auth., 23 F.3d 636, 639 (2d Cir. 1994); see also Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163. 165. 113 S. Ct. 1160, 1163, 122 L. Ed. 2d 517 (1993) (citing Fed. R. Civ. P. 8(a)(2) to demonstrate liberal system of 'notice pleading' employed by the Federal Rules of Civil Procedure).
The court's duty merely is "to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof." Geisler v. Petrocelli, 616 F.2d 636, 639 (2d Cir. 1980); accord Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The appropriate inquiry, therefore, is not "whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236, 94 S. Ct. at 1686; Ricciuti v. New York City Transit Auth., 941 F.2d 119, 124 (2d Cir. 1991) (plaintiff is not compelled to prove his case at the pleading stage).
Additionally, it is not required that a claimant set out in detail the facts upon which he or she bases a claim, but only a statement of his or her claim that will give defendant "fair notice of what [the] claim is and the grounds upon which it rests." Conley v. Gibson, 355 U.S. 41, 47, 78 S. Ct. 99, 103, 2 L. Ed. 2d 80 (1957). Therefore, where a complaint is filed that charges each element necessary to recover, dismissal of the case for failure to set out evidential facts can seldom be warranted. U.S. v. Employing Plasterers Ass'n of Chicago, 347 U.S. 186, 188-89, 74 S. Ct. 452, 98 L. Ed. 618 (1954). Individual allegations, however, that are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains are meaningless as a practical matter and, as a matter of law, insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987).
II. INTENTIONAL TORT CLAIMS BARRED BY THE STATUTE OF LIMITATIONS
Defendants Computer Associates and Markowitz assert that plaintiff's intentional tort claims should be dismissed on the ground that they are barred under the applicable statute of limitations. The plaintiff asserts that the statute of limitations was tolled while her EEOC claim was pending, and that a complainant is statutorily forbidden to bring an action in ...