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MCGRATH v. NASSAU HEALTH CARE CORP.
July 29, 2002
SALLY PISTORIO MCGRATH AND JOHN MCGRATH, PLAINTIFFS,
NASSAU HEALTH CARE CORP. AND ERIC S. ROSENBLUM, DEFENDANTS.
The opinion of the court was delivered by: Platt, District Judge.
Defendant Nassau Health Care Corporation ("NHCC") moves pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss
Plaintiffs' Amended Complaint.*fn1 For the reasons stated below, that
motion is DENIED. NHCC is directed to answer Plaintiffs' Amended
Complaint within twenty days of receiving this Memorandum and Order.
This is a civil rights case. Plaintiffs Sally Pistorio McGrath
("McGrath") and John McGrath allege: (1) that NHCC's former board
chairman Eric Rosenblum ("Rosenblum"), sexually harassed McGrath through
a litany of lewd activities and untoward statements; and (2) that NHCC
negligently permitted Rosenblum to continue those practices by not
terminating him. Plaintiffs currently assert hostile work environment and
quid pro quo claims under Title VII of the Civil Rights Act of 1964
("Title VII") and the New York Executive Law, Equal Protection and First
Amendment claims brought under 42 U.S.C. § 1983, a New York Executive
Law marital status discrimination claim, and claims for assault,
battery, intentional infliction of emotional distress and loss of
consortium. (Am.Compl. ¶¶ 87-113.)
McGrath was, at the time the Amended Complaint was filed, a thirty-six
year old woman who resided in Jericho, New York. (Am.Compl. ¶ 2.)
John McGrath is her husband. (Am.Compl. ¶ 3.)
NHCC is a New York public benefit corporation that maintains its
principal place of business in East Meadow, New York. (Am.Compl. ¶
4.) NHCC operates the Nassau University Medical Center ("Medical
Center"). (Am.Compl. ¶ 5.)
Rosenblum is an attorney and the former chairman of NHCC's board of
directors. (Am.Compl. ¶¶ 6-7.) He was also McGrath's supervisor.
(Am.Compl. ¶ 6.) Rosenblum continues to serve as a member of NHCC's
board of directors. (Am. Compl. ¶ 6.)
2. McGrath's Employment at NHCC
NHCC hired McGrath as a temporary employee in June of 1999. (Am.
Compl. ¶ 19.) McGrath became a full-time NHCC employee in September
of 1999. (Am.Compl. ¶ 21.)
Rosenblum allegedly began sexually harassing McGrath on a consistent
basis in the first week of September of 1999. (Am. Compl. ¶ 27.)
That alleged sexual harassment included: (1) a litany of untoward verbal
and written sexual remarks and suggestions;*fn2 (2) physical and verbal
intimidation;*fn3 (3) actions designed to alienate McGrath from John
McGrath;*fn4 (4) vulgar gesturing; and (5) assault and battery.*fn5
(Am.Compl. ¶¶ 27, 33-40, 44-45, 48-49, 56, 58, 60, 62, 65-66, 70,
McGrath contends that NHCC's director of labor relations, Frank
Lattimer, heard several of Rosenblum's sexually harassing comments and
that he told her to "watch herself because Rosenblum was the "boss.'"
(Am.Compl. ¶ 50.) McGrath also avers that she told the Medical
Center's diversity department head on several occasions that Rosenblum
was sexually harassing her. (Am.Compl. ¶ 51.)
Members of NHCC's senior management eventually became aware of
alleged behavior. On July 20, 2000, and again on July 21, 2000, McGrath
met with the Medical Center's chief executive officer, Jerald Newman
("Newman"), and its general counsel, Lou Savinetti ("Savinetti"), to
discuss Rosenblum's behavior towards her. See McGrath v. Nassau Health
Care Corp., 204 F.R.D. 240, 242 (E.D.N.Y. 2001); (Am.Compl. ¶ 71.)
At the July 21, 2000 meeting, Newman and Savinetti had a copy of
Rosenblum's note requesting oral sex from McGrath. (Am. Compl. ¶
73.) Newman and Savinetti apparently launched an investigation into
Rosenblum's behavior towards McGrath after that second meeting. (Am.
Compl. ¶ 77.)
As a result of that investigation, Rosenblum was removed as chairman of
NHCC's board of directors. (Am.Compl. ¶ 76.) McGrath was also
reassigned to work for another NHCC employee and was given a parking
space closer to the building in which she worked. (Am.Compl. ¶ 77.)
On July 25, 2000, McGrath filed a complaint with the United States
Equal Employment Opportunity Commission ("EEOC"). (Am.Compl. ¶ 12.)
The EEOC issued McGrath a right-to-sue letter on August 31, 2000.
(Am.Compl. ¶ 13.) This suit followed.
On October 30, 2000, Plaintiffs filed a Complaint. That Complaint
asserted Title VII and the New York Executive Law sexual harassment
claims, negligence claims, and claims for loss of consortium. (Pls.'
Mem. in Opp.Def.'s Mot. to Dismiss at 8.)
On August 31, 2001, the Court granted Plaintiffs leave to file an
Amended Complaint. The Amended Complaint contains: (1) hostile work
environment and quid pro quo sexual harassment claims under Title VII and
the New York Executive Law; (2) Equal Protection and First Amendment
claims brought under § 1983; (3) a New York Executive Law marital
discrimination claim; (4) common law claims for assault and battery; (5)
an intentional infliction of emotional distress claim; and (6) a claim
for loss of consortium. (Pls.' Mem. in Opp.Def.'s Mot. to Dismiss at
On October 17, 2001, NHCC moved to dismiss Plaintiffs' Amended
Complaint. On December 21, 2001, the parties appeared to argue that
After hearing oral argument, the Court reserved decision. The Court now
denies NHCC's motion.
A. Standard on Rule 12(b)(6) Motions to Dismiss
Rule 12(b)(6) of the Federal Rules of Civil Procedure permits both
partial and complete dismissal for" "failure to state a claim upon which
relief can be granted.'" Sweet v. Sheahan, 235 F.3d 80, 84 (2d Cir. 2000)
(quoting FED.R.CIV.P. 12(b)(6)). On Rule 12(b)(6) motions to dismiss,
Courts may not consider matters outside the pleadings, see Wall v.
Roman, 18 Fed. Appx. 41, 42 (2d Cir. 2001); Leonard F. v. Israel Discount
Bank, 199 F.3d 99, 107 (2d Cir. 1999), but may consider documents
attached to pleadings, documents referenced in pleadings or documents
that are integral to the pleadings. Chambers v. Time Warner, Inc.,
282 F.3d 147, 152-53 (2d Cir. 2002). Courts must also" "take all factual
allegations as true and [must] construe all reasonable inferences in the
plaintiffs favor.'" Wall, 18 Fed.Appx. at 42 (quoting Lee v. Bankers
Trust, 166 F.3d 540, 543 (2d Cir. 1999) (internal citations omitted));
Sweet, 235 F.3d at 84.
On Rule 12(b)(6) motions to dismiss, courts assess only the legal
the complaint and whether plaintiffs have pled claims on which they are
entitled to discovery. See Sims v. Artuz, 230 F.3d 14, 20 (2d Cir.
2000); Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998). Courts do
not consider whether plaintiffs are ultimately likely to prevail at trial
on those claims. Sims, 230 F.3d at 20; Chance, 143 F.3d at 701.
Accordingly, dismissal is only appropriate if 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));
Lee, 166 F.3d at 543.
NHCC argues that McGrath's Title VII hostile work environment and quid
pro quo claims should be dismissed because McGrath did not
administratively exhaust those claims. NHCC contends that McGrath did not
administratively exhaust those claims because the EEOC, pursuant to an
administrative regulation, issued McGrath a right-to-sue letter only
thirty-seven days after she filed her EEOC complaint. NHCC accordingly
posits that the EEOC prematurely issued McGrath a right-to-sue letter and
that her Title VII claims, brought to this Court by authority of that
letter, are procedurally defective. NHCC is mistaken.
Aggrieved employees may only bring Title VII claims in federal district
court after filing timely EEOC charges and receiving an EEOC right-to-sue
letter. 42 U.S.C. § 2000e-5 (e) (2000); Legnani v. Alitalia Linee
Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001); Holtz v.
Rockefeller & Co., 258 F.3d 62, 83 (2d Cir. 2001). Administrative
exhaustion is a precondition to maintaining Title VII actions in district
court, and plaintiffs may only pursue claims in district court that were
either included in, or that are reasonably related to, allegations
contained in EEOC complaints. Legnani, 274 F.3d at 686; Holtz, 258 F.3d
at 83; Francis v. City of New York, 235 F.3d 763, 768 (2d Cir. 2000)
(relating that administrative exhaustion is only a precondition to
bringing a Title VII action in federal district court and is not a
Title VII imposes a 180-day waiting period from the time EEOC charges
are filed until the time the EEOC must either commence an action on the
complainant's behalf or issue a right-to-sue letter to the complainant.
42 U.S.C. § 2000e-5 (f)(i). However, pursuant to an administrative
regulation, the EEOC may issue right-to-sue letters to complainants
before the 180-day waiting period has expired if "[an authorized EEOC
representative] has determined that it is probable that the Commission
will be unable to complete its administrative processing of the charge
within 180 days from the filing of the charge and has attached a written
certificate to that effect." 29 C.F.R. § 1601.28 (a)(2) (2002).
Circuits have split on whether district courts may entertain suits
commenced under right-to-sue letters issued by the EEOC before the
180-day waiting period has expired. Compare Martini v. Fed. Nat'l
Mortgage Ass'n, 178 F.3d 1336, 1347 (D.C.Cir. 1999) (concluding that
suits in district court based on early right-to-sue letters are
premature) with Sims v. MacMillan, 22 F.3d 1059, 1060 (11th Cir. 1994)
(holding that early right-to-sue letters do not preclude suit in district
court), and Brown v. Puget Sound Elec. Apprenticeship & Training
Trust, 732 F.2d 726, 729 (9th Cir. 1984) (concluding same), and Walker
v. United Parcel Serv., 240 F.3d 1268, 1274 (10th Cir. 2001) (following
Sims and Brown). The Second Circuit has not
yet decided that question.*fn6 Arroyo v. WestLB Admin., Inc., 2000 WL
562425, *1, 213 F.3d 625 (2d Cir. 2000) (relating that the Second Circuit
has not previously addressed that question and declining to do so).
District courts in this circuit have consistently split on the
propriety of early right-to-sue letters.*fn7 Courts within the Eastern
District of New York have even reached conflicting conclusions. See,
e.g., Commodari v. Long Island Univ., 89 F. Supp.2d 353, 382 (E.D.N.Y.
2000) (Trager, J.) (upholding suits commenced under early right-to-sue
letters); Rodriguez v. Connection Tech., 65 F. Supp.2d 107, 110
(E.D.N.Y. 1999) (Spatt, J.) (striking suits commenced under early
Courts in this circuit that have declined to entertain early
right-to-sue letter cases argue that "Congress contemplated that
investigation and conciliation efforts on the part of the EEOC . . .
[are] an integral part of the Title VII remedy, and that the EEOC is,
therefore, required to make some effort at investigating a charge and
conducting some conciliation between employer and employee during ...