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February 2, 2000


The opinion of the court was delivered by: Kahn, District Judge.


Plaintiff alleges sexual harassment against Defendants in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII"), and pendent state claims. Defendant Berghorn moves to dismiss the complaint and defendant Olympic Regional Development Authority ("ORDA") for summary judgment. For the reasons set forth below, those motions are granted-in-part.


Defendant ORDA operates various sports venues in and around Lake Placid that were originally constructed for the 1980 Olympic Games. Plaintiff worked as a senior ticket sales clerk at Intervale Ski Jump supervised by defendant Berghorn.*fn1 Various incidents allegedly ensued, including, according to Plaintiff, an instance where defendant Berghorn exposed himself to her.

Plaintiff filed a complaint of sexual harassment with the Equal Employment and Opportunity Commission on November 30, 1996 and received a right to sue letter June 11, 1997. She then commenced the current action September 11, 1997, pleading four causes of action: (i) violation of Title VII; (ii) battery; (iii) assault, battery, and psychic injury; and (iv) violation of New York's Human Rights Law, N.Y.Exec.Law New § 296(6) ("HRL").


A. Defendant Berghorn's Motion to Dismiss

In reviewing the pleadings pursuant to Rule 12(b)(6), a court looks only to the four corners of the complaint and evaluates the legal viability of the allegations contained therein. See Fed.R.Civ.P. 12(b)(6); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied, 503 U.S. 960, 112 S.Ct. 1561, 118 L.Ed.2d 208 (1992); Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). "[A] district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer, 937 F.2d at 773. If a court wishes to consider material outside the pleadings, it must convert the motion to dismiss into one for summary judgment under Rule 56. See Kramer, 937 F.2d at 773.

The Second Circuit has stated that 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, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). In evaluating whether a complaint will withstand a Rule 12(b)(6) motion, a court must assume the truth of plaintiff's "well-pleaded allegations." Albright v. Oliver, 510 U.S. 266, 268, 114 S.Ct. 807, 127 L.Ed.2d 114 (1994); LaBounty v. Adler, 933 F.2d 121, 123 (2d Cir. 1991). The court also must read the complaint generously and draw reasonable inferences in favor of the pleader. See LaBounty, 933 F.2d at 123. A court will not dismiss a complaint unless it appears beyond a reasonable doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to the relief requested. See Hishon v. King & Spalding, 467 U.S. 69, 73, 104 S.Ct. 2229, 81 L.Ed.2d 59 (1984).

1. Title VII and the HRL

It is well-established in this Circuit that "individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII." Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d Cir. 1995). Plaintiff repeatedly cites and relies upon the dissent in Tomka, which, however much Plaintiff wishes otherwise, is not law. Plaintiff's reliance is utterly misplaced: the Second Circuit has not reversed the majority opinion nor have its recent rulings called Tomka into doubt. Any sexual harassment claim against a non-employer harasser can be brought under state law. Plaintiff has no Title VII claim against defendant Berghorn.

Defendant Berghorn also maintains that Plaintiff's HRL claim must fail for similar reasons. The HRL provides: "[i]t shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under [the New York Human Rights Law], or to attempt to do so." N YExec.Law § 296(6). The HRL defines "employer" in terms of the number of persons employed and "provides no clue to whether individual employees of a corporate employer may be sued under its provisions." Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 473 N.E.2d 11 (1984) (citing N.Y.Exec.Law § 292(5)). In Patrowich, the New York Court of Appeals held that an employee is not individually subject to suit under § 296 of the HRL as an employer "if he is not shown to have any ownership interest or any power to do more than carry out personnel decisions made by others." Id. at 542, 483 N.Y.S.2d 659, 473 N.E.2d 11. Defendant Berghorn obviously has no ownership interest in ORDA, but he did not refute Plaintiff's contention that his supervisory authority encompassed the ability to fire her. Under Tomka, Berghorn therefore remains potentially liable under the HRL as an employer and for aiding and abetting ORDA's alleged violations provided he actually participated in the violations.*fn2

2. Assault, Battery, and Psychic Injury Claims

Defendant Berghorn contends that Plaintiff's second and third causes of action for assault, battery, and psychic injury*fn3 are time-barred by N.Y.C.P.L.R. § 215(3)'s one year statute of limitations since the alleged harassment ended in March 1996 and the complaint was not filed until September 1997. Plaintiff maintains that a three year statute of limitations is appropriate under C.P.L.R. § 214(5) or, alternatively, § 214(2), since "[i]t would appear well-settled that where Federal statutes and Federal Civil ...

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