The opinion of the court was delivered by: Sweet, District Judge.
In lieu of answering the complaint (the "First Complaint"), defendants
AVSC International, Inc. ("AVSC"), Dr. Amy Pollack ("Pollack"), Thomas
Gray ("Gray"). and Jeanne Haws ("Haws") have moved to dismiss the claims
against them pursuant to Fed.R.Civ.P. 12(b)(6) as follows: (1) all
claims against Pollack; (3) the Third Cause of Action against Gray; (4)
the First, Second and Fourth Causes of Action against Haws; (5) the Fifth
Cause of Action in its entirety; and pursuant to Fed. R.Civ.P. Rule 12
(e) and (f), (6) to strike certain matters as scandalous or irrelevant and
for a more definite statement. Plaintiff Ed Smith ("Smith") has opposed
the motions, and, in the alternative, moves to replead any dismissed
On June 7, 2001, Smith filed a second complaint (the "Second
Complaint"), No. 00 Civ. 5054 (RWS), which alleged two counts of federal
civil rights violations against AVSC based upon the same facts alleged in
the first complaint. By agreement of the parties, the motion to dismiss
is applied to both complaints.
For the reasons set forth below, the defendants' motions are granted in
part and denied in part, and Smith is granted leave to replead.
AVSC is a not for profit corporation providing global family planning
services in conjunction with, among others, the United States Agency for
International Development ("USAID"). AVSC is headquartered in New York
At all times relevant to this action, Pollack, who resides in New
York, was, and still is, President of AVSC.
From the time Smith joined AVSC until on or about August 17, 2000, Gray
was the Chief Financial Officer at AVSC and Smith's direct supervisor.
Gray resides in New York.
At all times relevant to this action, Haws was, and still is, Vice
President of Human Resources at AVSC. Haws resides in New York.
The first complaint, No. 00 Civ. 9832 (RWS), was filed on December 29,
2000 and alleges five causes of action against each of the defendants:
(1) against "defendant employer and its agents" for "discrimination with
respect to harassment, hostile environment, wages, promotion,
termination, and other terms and conditions of employment because of sex
or sex plus age, in violation of the New York State Human Rights Law,"
and aiding and abetting the same; (2) the same grounds, in violation of
the New York City Human Rights Law; (8) retaliation and discrimination on
the same grounds, because of "age or age plus sex," in violation of the
New York State Human Rights Law; (4) discrimination because of "age or
age plus sex" in violation of the New York City Human Rights Law; and (5)
breach of implied contract to comply with the ethical rules of the
The defendants filed this motion to dismiss, to strike, and to
clarify, on March 2, 2001. Smith opposed on March 30, 2001. Defendants
filed a reply brief and the motion was deemed fully submitted after oral
argument on April 18, 2001.
While the motion was sub judice, the second complaint was filed on June
7, 2001. The second complaint alleges that the same conduct by the same
defendants violated Title VII of the Civil Rights Act of 1964 ("Title
VII"), 42 U.S.C. § 2000e et seq. By agreement of the parties, the
motion to dismiss is considered with respect to 10th complaints.
The following is a synopsis of the twenty pages of facts Smith alleges
in the First Complaint (which are duplicated in the Second Complaint).
These facts are deemed to be true for the purpose of this motion to
Smith alleges that AVSC has a pattern and practice of discriminating
against men and/or older*fn1 men in hiring, income, promotions,
termination, and other terms of conditions of employment. (Compl. ¶¶
11-14, 41.) The complaints set forth in detail various acts committed by
Gray against employees other than Smith, including acts of sexual and
racial discrimination, harassment (Compl. ¶¶ 17a-j), and improper
financial transactions (Compl. ¶ 18-22, 22a-ff). The other defendants
condoned Gray's behavior or took no action to remedy it (Compl. ¶¶
The complaints assert that the defendants committed two discriminatory
acts against Smith personally. First, although Smith had expressed
interest in applying
for the position of Senior Director of Finance and Administration, and
his then supervisor Gray had announced to the staff that Smith would be
promoted to that position, Gray subsequently asked Smith to consider the
position of International Controller. Smith accepted this proposal and
also agreed to be promoted to the Senior Director, would continue to
report to the CFO, be able to work from home one week per month, and
visit field offices two or three weeks of each month. (Compl. ¶¶
34-36.) However, a less-qualified woman in her twenties was promoted as
Senior Director in Smith's stead because, as Gray told him, she had "more
of a future at AVSC than Mr. Smith" (Compl. ¶ 40.) Gray later asked
Smith why he, a forty-something man, would want to work for Gray, who was
in his thirties. (Compl. ¶ 39.) AVSC, Haws and Pollack were aware of
Gray's actions, but did not discipline him. (Compl. ¶ 42.)
Second, the defendants "set up" and retaliated against Smith for
reporting sexual harassment and financial misconduct (Compl. ¶¶
49-73), which, Smith alleges, not only discriminated against him on the
basis of sex and/or age, but also breached his implied contract with AVSC
to follow the ethical reporting standards of the accounting profession.
Specifically, during the spring of 2000, Haws asked Smith for assistance
in documenting Gray's improprieties, which he did on August 14, 2000.
(Compl. ¶¶ 49-52.) At the same time, Smith notified Haws that Gray had
sexually harassed other AVSC employees, that Smith was being subjected to
harassment based upon his sex and age, and that AVSC legal counsel, Nina
Peckman ("Peckman"),*fn2 in particular, had sexually harassed Smith by
"continually harassing [him] to participate in sexual activity with her
and Mr. Gray, and to procure a black employee to have sex with her . . . ."
(Compl. ¶¶ 52-53.) In addition, Smith informed Haws and another
AVSC executive that he was considering communicating with USAID about
AVSC's improper financial practices. (Compl. ¶ 54.)
On Wednesday, August 16, 2000, Gray received a threat to the life of
his family. (Compl. ¶ 57.) The next day, Pollack announced that Gray
had resigned from AVSC. Haws took over as Smith's supervisor, and
instituted more rigorous work standards, not allowing him to
`telecommute' imposing deadlines, and not allowing him to use sick time
to "recover from the stress of the past few days." (Compl. ¶¶ 63-65.)
Smith notified Haws on Monday. August 21, 2000, that he was applying to
replace Gray as Chief Financial Officer. (Compl. ¶¶ 57-59.)
On September 20, 2000, Smith notified Haws and another senior executive
that he had contacted AVSC's external auditor, Arthur Anderson, about
accounting misconduct at AVSC. (Compl. ¶ 66.) One hour later, Pollack
terminated Smith for insubordination and offered Smith a $16,000
severance package in exchange for signing a general release and a
confidentiality agreement. (Compl. ¶¶ 67-68.) Smith refused, and
received no severance package. (Compl. ¶ 69.) He alleges that his
termination was "motivated by retaliation and discrimination based on sex
and/or age's" (Compl. ¶ 70), as well as because he "complained about
[Gray's] fraudulent financial and business practices . . . ." (Compl.
1. Relevant Legal Standards
A. Rule 12(b)(6) Motion to Dismiss
In reviewing a motion to dismiss under Rule 12(b)(6), courts must
"accept as true
the factual allegations of the complaint, and draw all inferences in
favor of the pleader." Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174
(2d Cir. 1993) (citing IUE AFL-CIO Pension Fund to Herrmann, 9 F.3d 1049,
1052 (2d Cir. 1993)). Review must be limited to the complaint and
documents attached or incorporated by reference thereto. See Kramer v.
Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991). In this context, the
Second Circuit has held that a complaint is deemed to "include . . .
documents that the plaintiffs either possessed or knew about and upon
which they relied in bringing the suit." Rothman v. Gregor, 220 F.3d 81,
88 (2d Cir. 2000). However, "legal conclusions, deductions or opinions
couched as factual allegations are not given a presumption of
truthfulness." L'Europeenne de Banque v. La Republica de Venezuela,
700 F. Supp. 114, 122 (S.D.N.Y. 1988).
"`[T]he issue is not whether a plaintiff will ultimately prevail but
whether the claimant is entitled to offer evidence to support the
claims.'" Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d
Cir. 1995) (quoting Schemer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683,
40 L.Ed.2d 90 (1974)). Dismissal is warranted only when "it appears
beyond doubt that the plaintiff can prove no set of facts in support of
his claim which would entitle him to relief." Comley v. Gibson,
355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957) (footnote omitted).
See also Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986).
B. Federal Civil Rights Laws
The Second Complaint contains two causes of action alleging that AVSC
discriminated against Smith "with respect to harassment, hostile work
environment, wages, promotion, termination and other terms and conditions
of employment" (1) on the basis of "sex or sex plus age" or "age or age
plus sex" in violation of Title VII; and (2) on the basis of "age or age
plus sex" in violation of the ADEA.
Title VII renders it unlawful for "an employer":
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against
any individual with respect to his compensation,
terms, conditions, or privileges of employment,
because of such individual's race, color,
religion, sex, or national origin; or
(2) to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of
employment opportunities or otherwise adversely
affect his status as an employee, because of such
individual's race, color, religion, sex, or
42 U.S.C. § 2000e-2(a). The Age Discrimination in Employment Act of
1967 ("ADEA"), 29 U.S.C. § 621 et seq., extends the same protection
to persons over the age of forty. 29 U.S.C. § 623(a)(1), 631(a).
The same evidentiary framework applies to both age and sex
discrimination claims. See Hollonder v. Am. Cyanamid Co., 172 F.3d 192,
198-99 (2d Civ.), cert. denied, 528 U.S. 965, 120 S.Ct. 399, 145 L.Ed.2d
311 (1999); Fisher v. Vassar College, 111 F.3d 1332, 1335 (2d Cir. 1997)
(en banc). Both Title VII and the ADEA provide only for "employer"
liability, see Tomka v. Seiler Corp., 66 F.3d 1295, 1313-17 (2d Cir.
1995) (Title VII); Martin v. Chemical Bank, No. 95-9015, 96-9365,
129 F.3d 114, 1997 WL 701359, *3 (2d Cir. Nov. 10, 1997) (table), and
share the same definition of "employer," compare 29 U.S.C. § 630 (b)
with 42 U.S.C. § 2000e(b).
While alleging that he was discriminated against on the basis of his
sex, and because of his age, Smith also claims "sex plus age" and "age
plus sex" discrimination. "Sex plus" discrimination has been widely
recognized by the courts. See, e.g., Phillips e. Martin Marietta Corp.,
400 U.S. 542, 544, 91 S.Ct. 496, 27 L.Ed.2d 613 (1971); Fisher v. Vassar
College, 70 F.3d 1420, 1448 (2d Cir. 1995) (Fisher I) ("The Supreme Court
has adopted the proposition that sex considered in conjunction with a
second characteristic — `sex plus' — can delineate a
"protected group" and can therefore serve as the basis for a Title VII
suit."), on reh'g in banc, 114 F.3d 1332 (2d Cir. 1997), cert. denied,
522 U.S. 1075, 118 S.Ct. 851, 139 L.Ed.2d ...