The opinion of the court was delivered by: Sweet, District Judge.
Defendants Objective Solutions, Intl. ("OSI") and Steven B.
Wolfe ("Wolfe") (collectively, the "Defendants") have moved under
Rules 12(b)(1), 12(b)(6) and 9(c), Fed.R.Civ.P., to dismiss the
complaint of plaintiff Shayne Kahn ("Kahn") for lack of
jurisdiction and for failure to state a claim upon which relief
may be granted. For the reasons set forth below, the motion is
granted and the complaint dismissed.
Kahn, who engaged in consensual sexual relations with Wolfe,
her employer, was fired at the insistence of the latter's wife.
Subjectively, Wolfe behaved like a cad. However, while
objectively all sexual activity between the genders requires some
discrimination, not all such activity gives rise to a cause of
On August 20, 1999, Kahn filed her Complaint in this action.
Kahn filed an Amended Complaint on December 2, 1999.
The Defendants' motion to dismiss was heard and marked fully
submitted on December 15, 1999.
On a Rule 12(b)(6) motion to dismiss, the factual allegations
of the complaint are presumed to be true and all factual
inferences must be drawn in favor of the plaintiff. See Cruz v.
Coach Stores, 202 F.3d 560, 562 (2d Cir. 2000); Cosmas v.
Hassett, 886 F.2d 8, 11 (2d Cir. 1989). Accordingly, the factual
allegations considered herein are taken from Kahn's Amended
Complaint and do not constitute findings of fact by the Court.
They are presumed to be true only for the purpose of deciding the
Kahn, a resident of New York City, is a former employee of OSI,
a company with offices at 535 Fifth Avenue in New York City.
Wolfe is the owner and president of OSI.
Kahn was employed by OSI as a Senior Executive Recruiter from
June of 1996 until August of 1998. She was an "exemplary employee
with a flawless work history," and was neither criticized nor
disciplined at any time during her employment by OSI. During the
tenure of her employment, however, she had a consensual "sexual
relationship" with Wolfe.
On August 13, 1998, following consensual sex, Wolfe told Kahn
that he was terminating their relationship because his family
"disapproved," and that she was fired. Wolfe suggested that Kahn
"call his wife at her therapist's office and `beg' for her job
back." Kahn "complied" with Wolfe's humiliating request, but
Wolfe's wife rejected Kahn's pleas, and Kahn "remained
terminated." According to Kahn, Wolfe told her that "if he could
not be intimate with her he no longer wanted her around."
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