The opinion of the court was delivered by: Brieant, District Judge.
By two separate motions filed on August 21, 2000 in this
federal question employment discrimination litigation, heard and
fully submitted on September 15, 2000, Defendants move to dismiss
Plaintiff's claims pursuant to Rule 12(b)(6).
Plaintiff, Daria Sullivan-Weaver, sues pursuant to the Civil
Rights Act of 1994 and the Civil Rights Act of 1991,
42 U.S.C. § 2000e-3 et seq. ("Title VII"), and the New York State Executive
Law § 296 et seq. ("New York State Human Rights Law") to remedy
alleged acts of retaliatory employment discrimination by
Defendants. Ms. Sullivan-Weaver alleges that Defendants
retaliated against her because she opposed what she believed to
be unlawful sexual harassment and sexual discrimination under
Title VII and the New York State Human Rights Law, made a
complaint to the management of New York Power Authority ("NYPA"),
and requested an investigation by the NYPA. The Complaint seeks
damages for retaliation. No separate claim is made alleging
Plaintiff has been employed by the NYPA at the Indian Point 3
Nuclear Power Plant ("IP3") in Buchanan, New York since October,
1990, and is presently so employed. She has held five different
positions, all at IP3. Currently, Plaintiff is employed by the
NYPA at IP3 as a Systems Engineering Technical Specialist.
Defendant, NYPA, is a municipal corporation of the State of New
York. Defendants Sam Petrosi, Kelley Varas and Lionel Banda are
employees of the NYPA at IP3.
In February, 1998, Plaintiff was a Design and Analysis
Secretary to Defendant Petrosi, the Design and Analysis Manager
at IP3 and Plaintiff's immediate supervisor. Allegedly, he
threatened Plaintiff with retaliatory conduct and a hostile work
environment in the future if she refused to accept reassignment
to another position in order to enable Mr. Petrosi to hire
Defendant Kelley Varas, a woman with whom Plaintiff alleges Mr.
Petrosi was romantically involved, to fill Ms. Sullivan-Weaver's
position as his secretary. Ms. Sullivan-Weaver alleges that she
reasonably and in good faith believed that these actions by
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