one set of facts that may be proven at trial.
By the same token, the Court may not consider Defendant
Scarpati-Reilly's affidavit dated December 21, 1999, submitted in
support of her motion to dismiss. See Newman & Schwartz v.
Asplundh Tree Expert Co., Inc., 102 F.3d 660, 662-63 (2d Cir.
1996) (reversing grant of motion to dismiss where district court
relied on allegations contained in movant's affirmation). The
present motion is limited to the legal sufficiency of the claims
in the Amended Complaint and although Defendant, an attorney,
"feel[s] it imperative to stress to this Court" her position on
the merits of Plaintiff's claims (Scarpati-Reilly Affidavit at ¶
9), such insistence is inappropriate on a motion to dismiss, as
Defendant should well know.
STANDARD FOR MOTION TO DISMISS
In deciding a motion to dismiss under Rule 12(b)(6), a district
court must "accept all of plaintiff's factual allegations in the
complaint as true and draw inferences from those allegations in
the light most favorable to the plaintiff." Desiderio v.
National Ass'n of Sec. Dealers, Inc., 191 F.3d 198, 202 (2d Cir.
1999). A complaint should not be dismissed "unless it appears
beyond doubt that the plaintiff can prove no set of facts in
support of his claim which would entitle him to relief." See
Dangler v. New York City Off Track Betting Corp., 193 F.3d 130,
138 (2d Cir. 1999) (quoting Conley v. Gibson, 355 U.S. 41,
45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957)). "The issue is not
whether a plaintiff will ultimately prevail but whether the
claimant is entitled to offer evidence to support the claims."
King v. Simpson, 189 F.3d 284, 287 (2d Cir. 1999) (quoting
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir.
TITLE VII AND § 1981A
In his first cause of action, Plaintiff alleges that
Defendant's conduct constituted unlawful sexual harassment in
violation of Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e, et seq.
Defendant argues that no liability may attach to her for
violation of Title VII because individuals may not be held liable
under that statute. (Def.'s Mem. at 4 (citing Tomka v. Seiler
Corp., 66 F.3d 1295 (2d Cir. 1995).)) In his opposition to
Defendant's motion, Plaintiff appears to concede that Tomka
bars suits against individuals under Title VII in their
individual capacity, but argues that Tomka does not address the
potential liability of individuals in their official capacity. We
find Plaintiff's argument unpersuasive.
Tomka clearly holds that "individual defendants with
supervisory control over a plaintiff may not be held personally
liable under Title VII". Id. at 1313. The mere fact that the
court in Tomka did not delineate between liability in an
individual's personal and official capacity does not call into
question whether the holding is applicable in both circumstances.
The court reasoned that liability may only be imposed on an
employer with fifteen or more employees because Congress did not
want to burden small entities with litigating discrimination
claims. It was therefore "inconceivable" that Congress would have
allowed individual employees to bear that burden. Id. at 1314.
This rationale applies equally well to liability against
individuals in their official capacities.
The wide majority of district courts that have addressed this
question have reached a similar conclusion. See, e.g., McBride
v. Routh, 51 F. Supp.2d 153, 157 (D.Conn. 1999) (collecting cases
dismissing official capacity claims under Title VII); Catalan v.
Andrew Freedman Home, No. 96 Civ. 7537, 1998 WL 19990, *1
(S.D.N.Y. Jan.21, 1998) (noting suits against individual
supervisors inappropriate under Title VII where employer itself
can be sued); Gray v. Shearson Lehman Bros., 947 F. Supp. 132,
136 (S.D.N.Y. 1996) (noting that "there is nothing to show that
to permit suits against individuals in their official capacity");
Bonner v. Guccione, 916 F. Supp. 271, 279 (S.D.N.Y. 1996)
(noting that the "Tomka decision militates against the crafting
of a private action against employees acting in their `official'
Accordingly, Plaintiff's claims against Defendant for violation
of Title VII are dismissed.
Plaintiff's Seventh cause of action seeks $1,000,000.00 in
damages pursuant to 42 U.S.C. § 1981a. Section 1981a provides, in
pertinent part, that
[i]n an action brought by a complaining party under
section 706 or 717 of the Civil Rights Act of 1964
(42 U.S.C. § 2000e-5) [42 U.S.C.A. §§ 2000e-5 or
2000e-16] against a respondent who engaged in
unlawful intentional discrimination . . ., and
provided that the complaining party cannot recover
under section 1981 of this title, the complaining
party may recover compensatory and punitive damages
as allowed in subsection (b) of this section, in
addition to any relief authorized by section 706(g)
of the Civil Rights Act of 1964 [42 U.S.C.A. §
2000e-5(g)], from the respondent.
42 U.S.C. § 1981a(a)(1).
Plaintiff claims that because we are dismissing Plaintiff's
Title VII claim against Defendant, we must also dismiss
Plaintiff's § 1981a claim, because § 1981a "simply sets forth
potential damages which a prevailing plaintiff may pursue against
a defendant". We agree. Plaintiff's Seventh cause of action
against Defendant is dismissed.
NEW YORK HUMAN RIGHTS LAW
In his Second cause of action, Plaintiff claims Defendant
violated New York's Human Rights Law ("HRL"), N.Y. Exec.Law § 290
et seq. The HRL recognizes claims for liability brought against:
(1) employers (N.Y. Exec.Law § 296.1) or (2) persons who aid,
abet, incite, compel or coerce the commission of a violation by
an employer. (N.Y. Exec.Law § 296.6).
Section 296.1 states, in pertinent part:
It shall be unlawful discriminatory practice . . .
for an employer . . . because of the . . . sex of any
individual to . . . discriminate against such
individual in compensation or in terms, conditions or
privileges of employment.
The New York Court of Appeals has held that an employee may not
be individually subject to suit as an employer under § 296.1 of
the HRL "if he [or she] is not shown to have any ownership
interest or any power to do more than carry out personnel
decisions made by others". Patrowich v. Chemical Bank,
63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 660, 473 N.E.2d 11 (1984). In
the government context, it is unclear who, if anyone, would
qualify as having an ownership interest. Thus, if any government
employee is to be held liable under § 296.1, they must be found
to do "more than carry out personnel decisions made by others".