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KAHN v. OBJECTIVE SOLUTIONS

March 8, 2000

SHAYNE KAHN, PLAINTIFF,
V.
OBJECTIVE SOLUTIONS, INTL. AND STEVEN B. WOLFE, INDIVIDUALLY AND AS OWNER AND PRESIDENT OF OBJECTIVE SOLUTIONS, INTL., DEFENDANTS.



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

OPINION

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 action.

Prior Proceedings

On August 20, 1999, Kahn filed her Complaint in this action. Kahn filed an Amended Complaint on December 2, 1999.

The Amended Complaint contains four claims. The first claim is asserted against OSI alone for gender discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e. The second and third claims are asserted against both OSI and Wolfe for gender discrimination in violation of both the New York State Human Rights Law (the "Human Rights Law"), N.Y.Exec.Law § 296, and the New York City Administrative Code (the "Administrative Code"), N.Y.C.Admin.Code § 8-502(a). The fourth claim is asserted against OSI and Wolfe for violation of New York's Civil Rights Law (the "Civil Rights Law"), N.Y.Civ.Rights Law § 40-c. The Amended Complaint seeks actual and punitive damages of several million dollars, as well as attorneys' fees, disbursements, and costs.

The Defendants' motion to dismiss was heard and marked fully submitted on December 15, 1999.

The Facts

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 present motion.

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."

Discussion

I. The EEOC's Issuance of an Early Right-To-Sue Letter Does Not Divest The ...

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