The opinion of the court was delivered by: Hurd, District Judge.
MEMORANDUM — DECISION AND ORDER
Plaintiff Lori Ann Harrington ("Harrington" or "plaintiff")
commenced the instant action pursuant to Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e ("Title VII"),
and the New York State Human Rights Law, N.Y.Exec. Law §§ 296 &
297 (McKinney 1992), asserting causes of action for sexual
harassment and retaliation. The defendants County of Fulton
("County") and Fulton County Department of Social Services
("DSS") moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6), or
alternatively for summary judgment, pursuant to Fed.R.Civ.P.
56.*fn1 The plaintiff opposed. Oral argument was heard on
April 27, 2001 in Albany, New York. Decision was reserved.
On May 23, 1998, Harrington was hired as a caseworker for the
DSS. She was promoted to senior caseworker on October 9, 1990.
Lefflear was hired in 1993 and was placed in Harrington's unit,
thereby making her his supervisor. Harrington alleges that from
approximately 1995 until May 1997, Lefflear made numerous
unwelcome advances, sexual comments, and leered at her. For
example, she claims that he pasted pictures of her head onto the
bodies of swimsuit models and taped them in his cubicle, told
her she wore "huggable" sweaters, and asked her to wear her hair
up so he could see her neck.
On May 27, 1997, Harrington verbally complained to her
supervisors. The Commissioner of DSS conducted an investigation
by interviewing plaintiffs coworkers. Harrington alleges that
after this investigation, Lefflear still stared at her, made
snide comments to her, and her coworkers labeled her a
On November 18, 1997, Harrington filed a written complaint
with the County's Director of Personnel, Edith Pashley
("Pashley"), alleging that she was being sexually harassed by
Lefflear. After another investigation, a counseling memo was
placed in Lefflear's file and he was removed from plaintiffs
unit. Plaintiff claims that after she filed her written
complaint, she was given less field work, her annual evaluations
became less favorable, and although Lefflear was removed from
her unit, he still sat only ten feet away from her.
Harrington took disability leave in June 1999 due to surgery.
Prior to that, she had requested a transfer. When she returned
from disability leave in September 1999, she was transferred to
another unit, as requested; however, she claims that she was
given no work and resorted to playing Solitaire all day. On
February 8, 2000, she submitted her resignation, effective
February 26, 2000. Lefflear sent her flowers on her last day.
Plaintiff filed a complaint with the Equal Employment
Opportunity Commission ("EEOC") on August 21, 2000. On August
29, 2000, the EEOC issued a right to sue letter. A summons and
complaint was served on the County on November 21, 2000.
A. Motion to Dismiss Standard
A motion to dismiss "test[s] the legal sufficiency of the
complaint, and thus does not require the Court to examine the
evidence at issue." DeJesus v. Sears, Roebuck & Co.,
87 F.3d 65, 69 (2d Cir. 1996) (quoting Carey v. Mt. Desert Island
Hosp., 910 F. Supp. 7, 9 (Me. 1995)). In reviewing the
sufficiency of a complaint at the pleading stage, "[t]he issue
is not whether a plaintiff will ultimately prevail but whether
the claimant is entitled to offer evidence to support the
claims." Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,
40 L.Ed.2d 90 (1974).
A cause of action shall be dismissed for failure to state a
claim under Fed.R.Civ.P. 12(b)(6), "only if `it appears beyond
doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief.'" Tarshis v. Riese
Org., 211 F.3d 30, 35 (2d Cir. 2000) (quoting Conley v.
Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99,
2 L.Ed.2d 80 (1957)). Accordingly, in considering a motion
brought pursuant to Fed.R.Civ.P. 12(b), the court must assume
all of the allegations in the complaint are true and "draw
inferences from those allegations in the light most favorable to
[the] plaintiff." Id. Nevertheless, a pleading which consists
of bald assertions and conclusory allegations unsupported by
factual assertions "will not suffice to state a claim." See
id.; see also Gregory v. Daly, 243 F.3d 687, 692 (2d Cir. 2001)
(stating that, while the Federal Rules of Civil Procedure's
notice pleading standards merely require a short and plain
statement of a claim, a complaint which merely consists of naked
assertions, and sets forth no facts, is insufficient to state a
claim under Rule 12(b)(6)).
Where a motion to dismiss is made prior to any discovery or
the filing of an answer, the court is loath to dismiss the
complaint, regardless of whether the plaintiff is unlikely to
prevail, unless the defendant can demonstrate that plaintiff is
unable to prove facts which would entitle him to relief. Wade
v. Johnson Controls, Inc., 693 F.2d 19, 22 (2d Cir. ...