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November 3, 2000


The opinion of the court was delivered by: William C. Conner, Senior District Judge.


Plaintiff Angela Dean, an African-American woman, brings the instant action against defendants Westchester County District Attorney's Office, Jeannine Pirro, District Attorney for Westchester County, Francis T. Donohue, Chief Assistant District Attorney, and Paul Scharf, Assistant District Attorney, pursuant to Title VII of the Federal Civil Rights Act of 1964, 42 U.S.C. § 2000e et. seq. ("Title VII") and N.Y. Executive Law § 290 et. seq. Plaintiff, an attorney, alleges that because of her race and gender, she was harassed, constructively discharged, subjected to intentional infliction of emotional distress and ultimately discharged in retaliation for her complaints about such treatment. Defendants now move to dismiss the complaint pursuant to FED. R. CIV. P. 12(b)(6), for failure to state a claim. For the foregoing reasons, defendants' motion is granted.


The relevant facts, as alleged in plaintiff's complaint, are as follows:

Plaintiff, a graduate of Villanova University School of Law, began working for defendant Westchester County District Attorney's Office as an Assistant District Attorney in September 1997. She was initially assigned to the Appeals and Special Litigation Division where she handled motions in felony cases. (Complt. ¶¶ 10-11.) On November 22, 1998 she was promoted to the Local Criminal Court Bureau where her new job responsibilities included trying cases and making court appearances. (Id. ¶¶ 12-13.) After the promotion, plaintiff did not receive any training or supervision in connection with the new job. (Id. ¶ 14.)

On December 4, 1998 plaintiff reviewed the files in the case of People v. Peter Nigro and became aware that the trial had been adjourned several times and that no action by the District Attorney's Office had been taken in the case. Although plaintiff requested another adjournment, the judge refused and set a trial date for January 6, 1999. At that time, defendant Scharf, concerned that the number of adjournments charged against the District Attorney's Office would ultimately result in dismissal, attempted to contact the judge to discuss his concerns, but without success. He then informed plaintiff, in a "very cursory manner," that he wanted to review all of her files. (Complt., Ex. A.) No further instruction or assistance was given to plaintiff in her preparation for trial of the Nigro case. (Id.)

On January 6, 1999 the Nigro case was dismissed due to the number of adjournments. (Id.) Plaintiff alleges that Scharf brought her to tears (Id.) when he told her: that the dismissal was due to her own negligence (Complt. ¶ 17); that she was a bad attorney (Complt., Ex. A); and that she should not be practicing law. (Id.) Scharf gave her no assistance in appealing the dismissal of the case and "continued to make remarks and offensive comments to plaintiff, including but not limited to discriminatory intimidation, ridicule, insult and harassment." (Complt. ¶ 17.) Thereafter, plaintiff sought medical attention and was advised by her doctor to take time off from work. (Id. ¶ 19.) At an unspecified time thereafter, defendant Donohue threatened to prosecute her for allegedly stealing literature valued at $27.50. (Id. ¶¶ 32, 34.) On March 15, 1999 plaintiff paid for the materials by check. (Id. ¶ 31.)

On January 13, 1999 defendant Donohue told plaintiff that her job performance in the Nigro case had caused both the police department and the victim's family to complain. He gave plaintiff the choice of either resigning or returning to her former position in the Appeals Division (Complt., Ex. A) without affording her the opportunity to explain. (Complt. ¶ 18.) A memo was then distributed to all of the District Attorney Offices informing them of plaintiff's reassignment to the Appeals Division. (Complt., Ex. A.) Plaintiff also contends that there were "slanderous statements" made about her to others (Id.), but fails to provide any examples.

On January 8, 1999 plaintiff retained legal counsel. (Complt. ¶ 18.) On January 28, 1999 plaintiff's attorney wrote a letter to defendant Pirro alleging that plaintiff had been the subject of discrimination, harassment, slanderous statements and constructive discharge. (Complt, Ex. A.) On February 5, 1999 Donohue terminated plaintiff, who alleges that the reasons offered were pretextual and that the termination was in direct retaliation for the January 28, 1999 letter from plaintiff's counsel. (Complt. ¶ 21.) In March, 1999 plaintiff filed a complaint with the Equal Employment Opportunity Commission ("EEOC") (Id. ¶ 9), was issued a right-to-sue letter, and commenced the instant action.


I. Applicable Law

On a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept as true all of the well pleaded facts and consider those facts in the light most favorable to the plaintiff. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183, 104 S.Ct. 3012, 82 L.Ed.2d 139 (1984); Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993); In re AES Corp. Securities Litigation, 825 F. Supp. 578, 583 (S.D.N Y 1993). Furthermore, in assessing the legal sufficiency of a claim, the court may consider not only the facts alleged in the complaint, but also any document attached as an exhibit to the complaint or incorporated in it by reference. See FED. R. CIV. P. 10(c); De Jesus v. Sears, Roebuck & Co., Inc., 87 F.3d 65, 69 (2d Cir. 1996).*fn1

On such a motion, the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236, 94 S.Ct. 1683. A complaint should not be dismissed for failure to state a claim "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." Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980)). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss." 2 JAMES WM. MOORE ET AL., MOORE's FEDERAL PRACTICE ยง 12.34[1][b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Allegations that are so conclusory that they fail ...

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