The opinion of the court was delivered by: Munson, Senior District Judge.
MEMORANDUM-DECISION and ORDER
Two defendants have motions before the court: the National Office of
the American Legion ("American Legion") moves to dismiss for lack of
subject matter jurisdiction and failure to state a claim; the American
Legion Department of New York's ("American Legion-NY") moves for judgment
on the pleadings, or dismissal for failure to state a claim. Plaintiff
opposes these motions.
Plaintiff, a former employee of the American Legion, claims in her
complaint that defendants violated Title VII of the Civil Rights Act of
1964, as amended, Title 42 U.S.C. § 2000e, et seq., and the Civil
Rights Act of 1991. She alleges: (1) employment discrimination on the
basis of sex; (2) quid pro quo discrimination on the
basis of sex; (3) the creation and maintenance of a hostile work
environment; (4) retaliation; (5) wrongful termination; and (6) various
violations of the New York State Human Rights Law ("NYHRL") § 296, et
seq. She seeks compensatory and punitive damages, front pay, interests,
costs and attorney's fees.
The court assumes arguendo that the following allegations are true.
Plaintiff was employed as a bartender at American Legion Cortland City
Post 489 in Cortland, New York from June 15, 1996 until November 25,
1997. She claims that throughout her employment at the post, she was
sexually harassed by its commander: defendant Joseph Smith. This
harassment comprised Smith's demands and suggestions that plaintiff
perform sexual acts for him, accompany him on trips out of town, visit
motel and hotel rooms for lascivious rendezvous, allow him to fondle her
anatomy, as well as other sexual suggestions and references to salacious
activity. Plaintiff maintains Smith made his sexual comments both in
private and in the presence of patrons of Post 489, and adds that none of
his statements were welcome, encouraged or desired.
Plaintiff contends that she rebuffed Smith's advances and told him his
remarks were unseemly. In addition to her admonitions to Smith, she
complained orally to defendant Post Vice Commanders Tom Clark and James
Duggan. When they took no action, she sent a letter to each of them, as
well as defendant District Commander Joseph Dwyer, that complained of
Smith's conduct. Again, no action was taken, but in retaliation for her
filing a complaint, Smith continued his bawdy behavior and changed
plaintiff's work schedule, terms, condition and privileges of employment.
The continued harassment traumatized plaintiff and eventually she was
hospitalized. June 17, 1997 was her last day of work; she was unable to
work thereafter because the prolonged harassment had disabled her
psychologically. At a meeting five months later, Post 489's Board of
Directors voted to terminate plaintiff's employment.
On March 19, 1998, plaintiff filed a discrimination under claim the
Equal Employment Opportunity Commission ("EEOC"). The EEOC did not hold
proceedings on her claim, but issued a right-to-sue letter, at her
request, on December 4, 1998. Plaintiff filed the instant suit on March
3, 1999, naming as defendants Smith, Clark, and Duggan; Joseph Dwyer, the
6th District Commander; and the American Legion and the American
Legion-NY. The latter two defendants were not named in plaintiff's EEOC
The American Legion maintains the complaint should be dismissed against
it under Rule 12(b)(1) because the court has no subject matter
jurisdiction over this action for two reasons: (1) it is not plaintiff's
"employer" under 42 U.S.C. § 2000e(b) and the NYHRL; and (2)
plaintiff has not exhausted her administrative remedies. The American
Legion continues that dismissal under Rule 12(b)(6) is appropriate
because plaintiff fails to make a claim upon which relief may be granted
by failing to make any substantive allegations connecting it with Post
489's challenged actions, and because New York law does not recognize
plaintiff's claim for wrongful termination. The American Legion-NY's
motions, in large measure, echo these arguments.
I. Standards Governing Rule 12 Motions
Four Rule 12 motions are before the court. The American Legion moves to
dismiss the complaint under 12(b)(1) due to lack of subject matter
jurisdiction, and pursuant to 12(b)(6) for failure to state a claim upon
which relief may he granted. The American Legion-NY, meanwhile, moves
pursuant 12(c) for judgment on the pleadings, and under 12(h)(3) to
dismiss for lack of subject matter jurisdiction.
A court may dismiss a case for lack of subject matter jurisdiction
under Rule 12(b)(1) when it lacks the statutory or constitutional power
to adjudicate the case. The burden of demonstrating federal jurisdiction
is on the party seeking to invoke it, which, in this case, is plaintiff.
See Kehr Packages, Inc. v. Fidelcor, Inc., 926 F.2d 1406, 1409 (3rd
Cir.), cert. denied, 501 U.S. 1222, 111 S.Ct. 2839, 115 L.Ed.2d 1007
(1991). When a motion addresses the existence of subject matter
jurisdiction, no presumptive truthfulness attaches to a plaintiff's
allegations. See Mortensen v. First Federal Sav. & Loan Ass'n.,
549 F.2d 884, 891 (3d Cir. 1977). Accordingly, unlike a 12(b)(6)
motion, consideration of a 12(b)(1) jurisdiction-type motion need not be
limited; conflicting written and oral evidence may be considered and a
court may "decide for itself the factual issues which determine
jurisdiction." Williamson v. Tucker, 645 F.2d 404, 413 (5th Cir.), cert.
denied, 454 U.S. 897, 102 S.Ct. 396, 70 L.Ed.2d 212 (1981). This type of
a Rule 12(b)(1) motion need not be converted into a Rule 56 motion where
extra pleading materials are considered. See Id. at 416.
Dismissal under Rule 12(b)(6) is dismissal on the merits of the
action: a determination that the facts alleged in the complaint fall to
state a claim upon which relief may be granted. While dismissals under 12
(b)(1) or 12(b)(6) appear to be the same, there are two factors on a
dismissal for lack of subject matter jurisdiction that can have a
significant bearing on the disposition of a case. First, in deciding a 12
(b)(6) motion, the court must "accept as true all the allegations in the
complaint and all reasonable inferences that can be drawn therefrom, and
view them in a light most favorable to the nonmoving party." Rocks v.
Philadelphia, 868 F.2d 644, 645 (3rd Cir. 1989). Second, dismissal of a
claim is not proper unless it is obvious that the plaintiff is unable to
prove no set of facts supporting his claim which would enable him to
prevail. See Robb v. Philadelphia, 733 F.2d 286, 290 (3rd Cir. 1984). A
complaint may he dismissed, however, when the facts pled and the
reasonable inferences therefrom are legally insufficient to support the
relief sought. See Pennsylvania ex. rel. Zimmerman v. PepsiCo, Inc.
836 F.2d 173, 179 (3d Cir. 1988).
A dismissal under 12(b)(1), in contrast, is not on the merits and is
without res judicata effect. Exchange Exchange Nat. Bank v. Touche Ross &
Co., 544 F.2d 1126, 1130-31 (2d Cir. 1976), modified on other grounds,
726 F.2d 930 (2d Cir. 1984), cert. denied, 469 U.S. 884, 105 S.Ct. 253,
83 L.Ed.2d 190 (1984). Furthermore, because a court must have original
jurisdiction in order to exercise supplemental jurisdiction, dismissal
pursuant to 12(b)(1) precludes a district court from ...