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June 18, 2001


The opinion of the court was delivered by: Hurd, District Judge.



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 troublemaker.

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. ...

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