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BOND v. STERLING

March 11, 1998

CHRISTINE BOND, Plaintiff,
v.
STERLING, INC. and KAY JEWELERS, INC., Defendants.



The opinion of the court was delivered by: MCAVOY

 Plaintiff Christine Bond brings this action against defendants Sterling, Inc. and Kay Jewelers, Inc., her former employers, alleging sex, disability and pregnancy-based discrimination in violation of federal and New York State statutes. Defendants move for partial dismissal of the Complaint pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff cross-moves for partial judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), and to amend the Complaint.

 I. BACKGROUND

 A. Facts

 On a motion brought under Rule 12(b)(6), the Court accepts the truth of the allegations in plaintiff's Complaint. Dwyer v. Regan, 777 F.2d 825, 828-29 (2d Cir. 1985). Those allegations follow.

 Plaintiff resides in Massena, New York. Defendant Kay Jewelers, Inc. ("Kay") is a New York corporation; defendant Sterling, Inc. ("Sterling") is an Ohio corporation with its principal place of business in Akron, Ohio. Both defendants are in the jewelry business.

 Plaintiff began her employment with Sterling on November 6, 1994. Sometime in late 1995, she became pregnant. In early 1996, her supervisor became aware of and expressed his displeasure to plaintiff regarding her pregnancy. In fact, personnel officer Michael Lynch specifically told plaintiff: "we are not a family oriented company, we are a business."

 During June of 1996, plaintiff experienced significant difficulty with her pregnancy, hindering her job performance. Consequently, she requested and was granted a leave of absence pursuant to the Family Medical Leave Act. She gave birth to her son on August 12, 1996, and remained on leave until September 10, 1996. Plaintiff and her doctor determined she would breast-feed her newborn son.

 Shortly after returning to work on September 15, 1996, defendants informed plaintiff she was required to attend a "managers seminar" at the Disney Theme Park in Florida. Plaintiff told defendants that because her son was less than six-weeks old, it would be impossible for her to attend the seminar unless she could bring him on the trip. She thus requested that she be allowed to bring her son with her, or, in the alternative, that she be excused from attending. Defendants refused both requests, and informed plaintiff she must attend the seminar without her child. Plaintiff concluded leaving her five-week old son would endanger his health and thus determined she could not attend the seminar.

 On September 27, 1996, defendants terminated plaintiff's employment because she failed to attend the seminar.

 B. Procedural History

 Plaintiff filed this action in New York State Supreme Court, St. Lawrence County, on September 24, 1997. Defendants removed the action to this Court on November 3, 1997. Jurisdiction is based on a federal question. See 28 U.S.C. § 1331.

 The Complaint contains four substantive claims: (1) sex-based discrimination in violation of the New York Human Rights Law ("HRL"), Executive Law § 296; (2) disability-based discrimination under § 296; (3) unlawful termination in violation of the Family Medical Leave Act, 29 U.S.C. § 2615; and (4) unlawful use of plaintiff's name for advertising and trade purposes subsequent to her termination, in violation of New York Civil Rights Law §§ 50 and 51. Plaintiff seeks compensatory and punitive damages.

 Defendants now move to dismiss the first and second claims above, and to dismiss plaintiff's claim for punitive damages, for failure to state a claim upon which relief may be granted. Plaintiff cross-moves for judgment on the pleadings, to amend her Complaint, and to add as a party-defendant Sterling Jewelers, Inc.

 II. DISCUSSION

 A. Defendants' Motion to Dismiss under Rule 12(b)(6)

 When deciding a motion to dismiss, a court must accept as true all factual allegations in the complaint and construe them favorably to the plaintiff. LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991); Cosmas v. Hassett, 886 F.2d 8, 11 (2d Cir. 1989). 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 her claim 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). "The court's function ... is not to weigh the evidence that ...


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