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June 26, 2001


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 claims.

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.

The Parties

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 City.

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.

Prior Proceedings

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 accounting profession.

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 dismiss.

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. ¶¶ 42-48).

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. ¶ 72.)


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 national origin.

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 ...

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