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ROSS v. MITSUI FUDOSAN

April 22, 1998

JENNIFER ROSS, Plaintiff, against MITSUI FUDOSAN, INC., NEWMARK & CO., ROCKEFELLER CENTER MANAGEMENT CORP., SUPREME BUILDING MANAGEMENT, INC. a/k/a SBM INC., ROGER MULLARKEY, PATRICIA RAY and JESSE RUBEN, Defendants.


The opinion of the court was delivered by: LEISURE

OPINION AND ORDER

 LEISURE, District Judge :

 Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, defendants Mitsui Fudosan, Inc. ("Mitsui"), Rockefeller Center Management Corporation ("RCMC"), Newmark & Company Real Estate Inc. ("Newmark"), Roger Mullarkey, Patricia Ray, and Jesse Rubens seek dismissal of all or part of the claims pending against them in the instant matter. For the reasons stated below, defendants' motions are granted in part and denied in part.

 BACKGROUND

 The following facts are taken from the allegations in the Complaint, which the Court must accept as true for the purposes of this motion. Defendant Supreme Building Management, Inc. ("SBM") hired plaintiff to serve as a concierge at 1251 Avenue of the Americas (the "Building"). Mitsui, through its subsidiary 1251 Americas Associates, owns the Building, and RCMC is the Building's managing agent. Mitsui employed Mullarkey at all times relevant to this action, and Newmark, the Building's leasing agent, employed Rubens. Ray is an officer and agent of SBM and was plaintiff's direct supervisor at the Building.

 In approximately May of 1994, SBM, with the consent of Mitsui, RCMC, and Newmark, hired Ross as a concierge at the Building. Soon thereafter, Mullarkey and Rubens, who plaintiff claims were her supervisors, began making sexual advances toward her. Mullarkey and Rubens sometimes would make these advances individually, and other times would approach plaintiff together. These advances escalated to physical contact, as Mullarkey and Rubens would touch plaintiff in manner she found intimate and offensive. Additionally, Mullarkey and Rubens repeatedly made sexually explicit comments and gestures to Ross.

 In June of 1996, Mullarkey and Rubens coerced Ross into accompanying them to an apartment, purportedly occupied by Mullarkey's mother. Once in the apartment, Mullarkey and Rubens forced Ross against her will to view a pornographic videotape containing graphic depictions of sexual acts. Mullarkey and Rubens refused to stop the tape or to allow Ross to leave the apartment, and demanded that she watch the entire tape.

 In late August of 1996, Mullarkey and Rubens again coerced Ross into accompanying them to Mullarkey's mother's apartment. Once inside the apartment, Mullarkey and Rubens exposed themselves to plaintiff and Rubens grabbed Ross, pulling her blouse and touching her breasts. Rubens then demanded that Ross kiss him and perform oral sex. Plaintiff struggled and screamed, whereupon Mullarkey and Rubens released her.

 Finally, in October, 1996, Rubens directed Ross to join him for lunch at a restaurant near the Building. Shortly after their arrival, and unknown to Ross, Rubens began to masturbate under the table. At his moment of climax, Rubens grabbed Ross's hand, placed it onto his exposed penis, and ejaculated on Ross's hand and body, causing Ross to scream. A restaurant hostess demanded that Rubens and Ross leave the restaurant immediately.

 Ross subsequently told her mother of the actions of Rubens, but did not mention Mullarkey. Her mother then telephoned Mullarkey to complain about Rubens's behavior. Mullarkey confronted Ross and instructed her to tell her mother that Rubens no longer worked at the Building. Ross alleges that Mullarkey indicated that he would fire her, if her mother did not drop the matter.

 Ross then complained to Ray, her direct supervisor at the Building, about the behavior of Mullarkey and Rubens, and requested that Ray intercede to prevent any further misconduct. Ray instructed plaintiff to keep quiet about the harassment so that SBM would not lose its contract with the Building.

 Laura Castel, Mullarkey's former secretary, contacted Ross to inform her of Mullarkey's and Rubens's propensities for sexual harassment. Castel had filed a lawsuit claiming that Mullarkey sexually harassed her. Ross claims that the events surrounding Castel, coupled with the pervasive nature of Ross's harassment, should have made Mitsui and Newmark aware of the conduct of their employees. Ross also claims that Greg Sutherland, the President of Mitsui, was aware of the actions of Mullarkey and Rubens. Additionally, Ross states that SBM, her employer, knew or should have known of the sexually harassing behavior directed toward her at the Building.

 Due to the nature and duration of the harassment, and the alleged resulting hostile work environment, Ross left the employ of SBM in November of 1996. She states that she did not quit voluntarily, but that the defendants constructively discharged her. On January 24, 1997, Ross filed a charge of discrimination against the defendants with the Equal Employment Opportunity Commission (EEOC). On February 4, 1997, plaintiff received a notice of right to sue the defendants from the EEOC.

 Ross seeks relief based upon a plethora of different legal theories. Several defendants now move the Court to dismiss some or all of the causes of action pending against them. Defendants Mitsui and RCMC seek dismissal of the claims for negligent supervision, vicarious liability, and violations of the New York Human Rights Law ("HRL") (Fifteenth, Seventeenth, Nineteenth, and Twentieth Causes of Action), as pertains to them. Defendants Newmark, Mullarkey, Rubens, and Ray now move for dismissal of all claims against them.

 DISCUSSION

 I. STANDARD FOR MOTION TO DISMISS

 In deciding a Rule 12(b)(6) motion, a court "must accept the allegations contained in the complaint as true, and draw all reasonable inferences in favor of the non-movant; it should not dismiss the complaint 'unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Sheppard v. Beerman, 18 F.3d 147, 150 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99(1957)); see also Kaluczky v. City of White Plains, 57 F.3d 202, 206 (2d Cir. 1995). However, the Court does not accept as true conclusory allegations that merely state the general legal conclusions necessary to prevail on the merits and are unsupported by factual averments. See Clapp v. Greene, 743 F. Supp. 273, 276 (S.D.N.Y. 1990); see also Albert v. Carovano, 851 F.2d 561, 572 (2d Cir. 1988).

 Fed. R. Civ. P. 8(a)(2) requires that a complaint contain "a short a concise statement of the claim showing that the pleader is entitled to relief." "The function of pleadings under the Federal Rules is to give fair notice of the claim asserted. Fair notice is that which will enable the adverse party to answer and prepare for trial, allow the application of res judicata, and identify the nature of the case so it may be assigned the proper form of trial." Simmons v. Abruzzo, 49 F.3d 83, 86 (2d Cir. 1995) (Kearse, J.) (quoting 2A Moore's Federal Practice P 8.13, at 8-58 (2d ed. 1994); see also Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d Cir. 1988). The requirements of Rule 8(a) are not satisfied merely by "a 'bare bones statement' of the legal claim without any supporting facts." Haber v. Brown, 774 F. Supp. 877, 879 (S.D.N.Y. 1991). "Dismissal, however, is usually reserved for those cases in which the complaint is so confused, ambiguous, vague, or otherwise unintelligible that its true substance, if any, is well disguised." Salahuddin, 861 F.2d at 43. If a court dismisses a complaint for failure to comply with the requirements of Rule 8, it generally should give plaintiff leave to amend. See Simmons, 49 F.3d at 86-87.

 II. INDIVIDUAL LIABILITY UNDER TITLE VII

 In the Complaint, Ross alleges that defendants Mullarkey, Rubens, and Ray violated Title VII of the Civil Rights Act of 1964, § 703(a)(1), Title 42, United States Code ("U.S.C."), Section 2000e-2(a)(1). However, the United States Court of Appeals for the Second Circuit has determined that "an employer's agent may not be held individually liable under Title VII." Tomka v. Seiler Corp., 66 F.3d 1295, 1317 (2d Cir. 1995).

 Faced with this clear statement by the Second Circuit, Ross argues that the Court should permit her the opportunity to conduct discovery to substantiate her assertion that Mullarkey and Rubens were her "employers" for purposes of Title VII. However, plaintiff does not allege in the Complaint that Mullarkey and Rubens were her "employers," but that they were her "supervisors". Accordingly, plaintiff's request for discovery on this issue must fail. In Jones v. Capital Cities/ABC Inc., 168 F.R.D. 477 (S.D.N.Y. 1996), the plaintiff contended that the Court should permit ...


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