Mr. Petrosi constituted unlawful sexual harassment and sexual
discrimination against Ms. Sullivan-Weaver, but she did resign
and accepted another position with the same employer, under the
supervision of defendant Banda. Plaintiff was transferred to the
position of Engineering Financial Administrator (Complaint at ¶
5), which was described as a "promotion." Ms. Varas became Mr.
Petrosi's secretary, filling Ms. Sullivan-Weaver's former
Plaintiff expressed to Mr. Petrosi and to her co-workers that
Mr. Petrosi's conduct constituted sexual harassment and sexual
discrimination against her. Consequently, Ms. Sullivan-Weaver
alleges, Defendants Petrosi and Varas initiated a campaign of
"retaliation" against her.
Ms. Sullivan-Weaver then complained to NYPA Human Resources and
senior management about this retaliation, which allegedly caused
Defendants Petrosi and Varas to intensify their campaign. This
retaliation allegedly included Mr. Petrosi making unspecified
false accusations to Plaintiff's evaluating manager, Mr. Jay
Gulati, and making further unspecified negative comments to
Thereafter, in April, 1997, Defendant Banda, the IP3
Engineering Support Manager and Ms. Sullivan-Weaver's immediate
supervisor after her reassignment, allegedly began his own
campaign of retaliation against Ms. Sullivan-Weaver because of
her prior complaints against Defendants Petrosi and Varas.
Defendant Banda allegedly advised Plaintiff that she would not be
considered for a promotion, made intentional misstatements during
Plaintiff's third quarter 1999 performance evaluation and made
further false and damaging representations regarding Plaintiff's
On December 22, 1999, Defendant Banda transferred Plaintiff to
her current position as Systems Engineering Technical Specialist,
which Plaintiff claims is a position of less responsibility,
adversely affecting her career opportunities. Allegedly defendant
Banda mischaracterized Ms. Sullivan-Weaver's performance to his
Plaintiff alleges that as a result of these retaliatory events
she suffered lost wages, benefits and other compensation, as well
as missing promotions and promotional opportunities.
On February 8, 2000, Plaintiff filed charges with the EEOC
claiming retaliation only. On February 23, 2000, the EEOC
dismissed the charge finding that: "Based upon its investigation,
the EEOC is unable to conclude that the information obtained
establishes violations of the statutes. This does not certify
that the respondent is in compliance with the statutes. . . ."
Dismissal under Rule 12(b)(6) is appropriate only when "it is
clear that no relief could be granted under any set of facts that
could be proved consistent with the allegations." Olkey v.
Hyperion 1999 Term Trust, Inc., 98 F.3d 2, 9 (2d Cir.
1996) (quoting I. Meyer Pincus Assoc. v. Oppenheimer & Co.,
936 F.2d 759, 762 (2d Cir. 1991)).
The retaliation claim is founded on 42 U.S.C. § 2000e-3(a),
which provides that: "It shall be an unlawful employment practice
for an employer to discriminate against any of his employees . .
. because he has opposed any practice made an unlawful employment
practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an
investigation, proceeding, or hearing under this subchapter."
Unlawful employment practices include discrimination against any
individual based on his "race, color, religion, sex, or national
origin." 42 U.S.C. § 2000e-2(a)(1). Plaintiff asserts that she
was discriminated against by Defendants because she opposed
sexual discrimination and sexual harassment.
The practice which she opposed was the request by Petrosi that
she accept reassignment to another position so that he could
employ his alleged paramour.
In order to state a claim, Plaintiff must allege that: (1) she
was engaged in protected activity; (2) her employer was aware of
that activity; (3) she suffered an adverse employment action; and
(4) there was a causal connection between the protected activity
and the adverse employment action. See Galdieri-Ambrosini v.
National Realty & Dev. Corp., 136 F.3d 276, 292 (2d Cir. 1998).
For purposes of this motion, our attention is directed solely
to element (1): whether or not Plaintiff was retaliated against
for engaging in a protected activity. The claimed "protected
activity" here is opposition to discrimination based on sex, as
prohibited by 42 U.S.C. § 2000e-2(a) and 2000e-3(a). The facts
relied on do not constitute opposition to discrimination based on
sex. Our Court of Appeals has held that there can be a cognizable
Title VII claim based on gender discrimination only if the
Plaintiff was prejudiced because of her status as a female. There
is no cognizable discrimination simply because the supervisor
"preferred his paramour." See DeCintio v. Westchester Co. Med.
Ctr., 807 F.2d 304, 308 (2d Cir. 1986) (DeCintio I), a case
strikingly similar to the instant claim.
Plaintiff attempts to rely on her presumed good faith in making
the Complaint. See Harper v. Blockbuster Entertainment Corp.,
139 F.3d 1385, 1389 (11th Cir. 1998). Mere subjective good faith
belief is insufficient, the belief must be reasonable and
characterized by objective good faith. Manoharan v. Columbia
University College of Physicians & Surgeons, 842 F.2d 590, 593
(2d Cir. 1988). As pointed out in DeCintio, supra,
The dispositive issue in this action is whether,
under Title VII of the Civil Rights Act of 1964,
42 U.S.C. § 2000e (1982), the phrase "discrimination on
the basis of sex" encompasses disparate treatment
premised not on one's gender, but rather on a
romantic relationship between an employer and a
person preferentially hired. The meaning of "sex,"
for Title VII purposes, thereby would be expanded to
include "sexual liaisons" and "sexual attractions."
Such an overbroad definition is wholly unwarranted.
807 F.2d at 306.
Because the facts pleaded are insufficient to support a good
faith, reasonable belief that Plaintiff's replacement by another
woman with whom her supervisor allegedly had a romantic
relationship constituted discrimination based on gender within
the plain meaning of the statute and the DiCintio case, any
retaliatory acts that she may have suffered as a result of that
opposition were not in reaction to a "protected activity," and,
therefore, not actionable under Title VII.
Defendants' motions to dismiss the Title VII claim in this
action are granted. The remaining supplemental claim that
Defendants' actions violated the New York State Human Rights Law
is dismissed without prejudice.
The Clerk shall file a final judgment.