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BROWN v. AMERICAN LEGION CORTLAND CITY POST 489

August 31, 1999

SHELLY J. BROWN, PLAINTIFF,
v.
AMERICAN LEGION CORTLAND CITY POST 489; JOSEPH SMITH, INDIVIDUALLY AND AS POST COMMANDER; TOM CLARK AND JAMES DUGGAN, AS VICE COMMANDERS OF AMERICAN LEGION CORTLAND CITY POST 489; JOSEPH DWYER, INDIVIDUALLY AND AS 6TH DISTRICT COMMANDER, THE AMERICAN LEGION DEPARTMENT OF NEW YORK; AND THE NATIONAL OFFICE OF THE AMERICAN LEGION, DEFENDANTS,



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.

BACKGROUND

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 complaint.

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.

DISCUSSION

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 ...


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