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TALYANSKY v. XEROX CORP.

September 30, 1998

VICTORIA TALYANSKY, Plaintiff,
v.
XEROX CORP., J.M. ISHLER, DIVISION MANAGER, Defendants.



The opinion of the court was delivered by: LARIMER

DECISION AND ORDER

 BACKGROUND

 Plaintiff, Victoria Talyansky ("Talyansky"), filed the instant complaint against defendants Xerox Corporation ("Xerox") and J.M. Ishler ("Ishler"), alleging claims under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000 et al. ("Title VII"). Talyansky alleges that defendants subjected her to a hostile work environment and retaliated against her when she complained of the treatment by terminating her employment and by giving unsatisfactory references to prospective employers.

 Pending before me is defendants' motion to dismiss Talyansky's complaint. For the reasons discussed, infra, defendants' motion is granted and Talyansky's complaint is dismissed in its entirety.

 FACTS

 From 1990 through her termination in October 1994, Talyansky was employed as a contract employee at Xerox through Burns Personnel, Inc., a company that supplies contract workers to Xerox and other businesses. In the middle of 1993, according to Talyansky, when defendant Ishler was appointed as the new division manager, her work environment began "getting more and more hostile." See Plaintiff's Complaint P 19. Talyansky alleges that she was terminated from her position as a result of her complaints to Ishler regarding the hostile environment.

 Talyansky filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on April 17, 1997. The EEOC charge mirrors her complaint before this court, i.e. hostile work environment caused by sexual harassment, retaliatory discharge, and continued retaliation in the form of negative employment references. The EEOC dismissed the harassment and discharge elements of the charge because the charge was not filed within 300 days of the alleged discriminatory conduct as required by statute. The EEOC dismissed the retaliation charge because the charge was vague and because it did not include any allegation that Xerox had given her a bad reference within 300 days prior to the charge or that she had even applied for a position within that time.

 DISCUSSION

 I. Standards on Motion to Dismiss

 Talyansky brings this action pro se. Generally, pro se complaints are held "'to less stringent standards than formal pleadings drafted by lawyers.'" Ortiz v. Cornetta, 867 F.2d 146, 148 (2d Cir. 1989), quoting Haines v. Kerner, 404 U.S. 519, 520, 30 L. Ed. 2d 652, 92 S. Ct. 594 (1972). In addition, when considering a defendant's motion to dismiss, a court must accept the plaintiff's allegations as true and resolve competing inferences in her favor. Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972).

 The burden on the defendant in a motion to dismiss is substantial. "[A] complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). When confronted with a motion to dismiss for failure to state a claim, the court's function "is merely 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). "The issue is not whether a plaintiff will ultimately prevail but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974).

 "When determining the sufficiency of [a plaintiff's] claim for Rule 12(b)(6) purposes, consideration is limited to the factual allegations in plaintiff['s] ... complaint, which are accepted as true, 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 plaintiff['s] possession or of which [plaintiff] had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).

 Recognizing the strong burden imposed upon defendants in a motion to dismiss, I nevertheless find that defendants in ...


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