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July 16, 2001


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.:



Brennan began working for Bally in January 1996. See Complaint ("Compl.") ¶ 8. Due to a pattern of harassment and discrimination, Brennan was forced to quit her job in August 2000. See id. ¶ 32. On August 19, 2000, Brennan filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). See id. ¶ 33. On January 8, 2001, the EEOC issued Brennan a Right-to-Sue Letter. See id. This action was commenced two weeks later.

A. The Original EDRP

In December 1998, while employed at Bally, Brennan received a fax requesting that she and her co-workers attend an educational meeting about sexual harassment. See Affidavit of Kathryn Brennan ("Brennan Aff.") ¶ 8. The meeting was run by Fred Infante, the head of Bally's Human Resources Department for the New York Region. See id. On December 17, 1998, Brennan attended this "training session", id. ¶ 9, where the employees were shown a video depicting incidents of sexual harassment. See id.

As soon as the video ended, Infante distributed a lengthy document, the EDRP, which he described as containing procedures for bringing employment discrimination claims.*fn1 See id. Infante told the employees to quickly review the EDRP, sign it and return it. See id. When someone asked what would happen if the EDRP were not signed and returned, Infante responded that anyone who did not sign the EDRP would not be considered for promotions. See id. ¶ 10.

At that time, Infante left the room for several minutes to make a telephone call. See id. ¶ 11. After Infante returned, he collected the EDRPs, checking aloud that each one was signed before accepting it. See id. Infante never discussed the contents of the EDRP or indicated why the employees had to sign it. See id. ¶ 12. Further, Infante neither offered the employees a sufficient opportunity to review the EDRP, nor recommended that the employees show the document to an attorney before signing it. See id. ¶ 11. Worried about losing her job, Brennan promptly signed and returned the EDRP. See id. Brennan maintains that she did not understand the legal significance of the document, nor was she told that the EDRP would effect her pending complaint against her previous supervisor.*fn2 See id. ¶¶ 15-16. Brennan claims that had she known that the EDRP would effect her pending complaint, she would not have signed it. See id. ¶ 16.

Since the time Brennan signed the EDRP, Bally has twice unilaterally modified it. See Infante Cert. ¶ 10. The first modification, EDRP I, occurred in March 1999, and the second, EDRP II, occurred in December 1999. See id. The essential differences between EDRP I and the original EDRP are that Section 16.1*fn3 was modified, a new clause, Section 6.6, *fn4 was added and Section 1.4*fn5 was deleted from the original EDRP. The essential differences between EDRP I and EDRP II are that Sections 3.1,*fn6 16.1,*fn7 and 24.3*fn8 in EDRP II were modified and new Sections 6.8*fn9 and 8.6*fn10 of EDRP II were added. Brennan has no recollection of ever being notified of or receiving copies of these modifications. See Brennan Aff. ¶ 14.


A. Motion to Dismiss

Dismissal of a complaint for failure to state a claim pursuant to Rule 12(b)(6) is proper only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim that would entitle [her] to relief.'" ICOM Holding, Inc. v. MCI Worldcom, Inc., No. 00-7660, 2001 WL 46675, at *1 (2d Cir. Jan. 22, 2001) (quoting Harris v. City of New York, 186 F.3d 243, 247 (2d Cir. 1999)). To properly rule on a 12(b)(6) motion, the court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in the nonmoving party's favor. See ICOM Holding, 2001 WL 46675, at *1.

B. Jurisdictional Challenge

A plaintiff's initial burden in defeating a jurisdictional challenge "is dependent upon the procedural posture of the litigation." Orobia Eng. S.R.L. v. Sorin Nacht, No. 97 Civ. 4912, 1998 WL 730562, at *2 (S.D.N.Y. Oct. 19, 1998). Although "a plaintiff bears the burden of establishing jurisdiction over the defendant by a preponderance of the evidence, the plaintiff need make only a prima facie showing that jurisdiction exists prior to the holding of an evidentiary hearing." Ball v. Metallurgie Hoboken-Overpelt. S.A., 902 F.2d 194, 196 (2d Cir. 1990).

In determining whether such a showing is satisfied, a district court may look at materials other than those contained within the complaint. See LeBlanc v. Cleveland, 198 F.3d 353, 356 (2d Cir. 1999) ("[W]here jurisdictional facts are placed in dispute, the court has the power and obligation to decide issues of fact by reference to evidence outside the pleadings, such as affidavits."). Appropriate circumstances for holding a hearing exist when the "proffered evidence is so conflicting and the record is rife with contradictions." Foster-Miller Inc. v. Babcock & Wilcox Cananda, 46 F.3d 138, 145 (1StCir. 1995); see also Cheyenne Autumn Inc. v. Mine and Bill's, No. 94 Civ. 4011, 1995 WL 366388, at *2-4 (S.D.N.Y. June 19, 1995) (evidentiary hearing warranted where the jurisdictional issue turned on which version of the facts the court should accept). Although a court must dismiss a case if it does not have jurisdiction, See RuhrgasA.G. v. ...

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