that Thomas's only encounter with Dr. Lighter was on the
evening of the alleged sexual assault.
Based on that conclusion, Thomas could prove no set of facts to
establish that such a brief incident, which was not followed by any
further sexual comments or touchings, could be objectively viewed as
sexual harassment in the workplace. Indeed, the incident did not occur
during work hours or on work grounds, but rather after work at an
off-site restaurant. Moreover, Dr. Lighter was not even a fellow employee
for purposes of Title VII, but rather a volunteer in the Defendant's
dental program. See Daggitt v. United Food and Commercial Workers
International Union, 245 F.3d 981, 987 (8th Cir. 2001) (noting that
"without compensation, no combination of other factors will suffice to
establish the relationship" of an employer and employee); see also York
v. Association of the Bar of the City of New York, 286 F.3d 122, 126 (2d
Cir. 2002) ("`[T]he question of whether someone is or is not an employee
under Title VII usually turns on whether he or she has received direct or
indirect renumeration from the alleged employer.'") (quoting Pietras v.
Bd. of Fire Comm'rs of the Farmingville Fire Dist., 180 F.3d 468, 473 (2d
As a general rule, sexual harassment incidents must be more than
"episodic; they must be sufficiently continuous and concerted in order to
be deemed pervasive." Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d
Cir. 1997) (citation and internal quotation marks omitted). Isolated
acts, unless sufficiently serious, do not meet the threshold of severity
or pervasiveness unless such an act, by itself, can and does work a
transformation of the plaintiff's workplace. See,e.g., Howley v. Town of
Stratford, 217 F.3d 141, 154 (2d Cir. 2000) (vile and sexually explicit
verbal abuse of a female firefighter that challenged her competence in
front of a large group that included her subordinates created a justified
fear that she would be left in peril at fire scenes and thus
significantly altered her work environment). While Dr. Lighter's alleged
squeezing of Thomas's buttocks certainly would be vulgar and
inappropriate, the Supreme Court has noted that Title VII was not
designed to act as a "general civility code," Faragher v. City of Boca
Raton, 524 U.S. 775, 778 (1998), but rather to address systematic
discrimination that adversely affects the employment of people on the
basis of their gender. On the facts before this Court as based on
Thomas's sworn testimony, one isolated incident that occurred at an
after-work dinner party off-site from the actual place of employment and
that was committed by a volunteer employee that Thomas had never met and
would unlikely ever see again, does not fall into the category of
prohibited conduct Title VII was designed to prevent, nor could it be
objectively viewed as such.
Since this Court finds no reasonable basis for Thomas to believe she
had a claim under Title VII, the disciplinary proceedings against Thomas
cannot be viewed as retaliation, but rather as a response to her
violation of WCHCC's policy against filing a false sexual harassment
claim and providing false information in the process. Thomas has provided
no facts that lead to a different conclusion. Indeed, to uphold Thomas's
claim in the face of so little factual support would be to vitiate the
portion of WCHCC's sexual harassment policy that attempts to punish those
who, following a formal due process proceeding, are found to have lodged
false accusations. Any person accused of making a false accusation could
claim that the disciplinary proceedings were brought as retaliation,
regardless of the legitimacy of the accusation. Consequently, this Court
dismisses Thomas's claim of unlawful retaliation under Title VII.
While ordinarily a court considering a Rule 12(b)(6) motion to dismiss
should grant leave to replead where a restatement of the claim may cure
the deficiencies, here the Court finds that Thomas's Complaint, even
liberally read, cannot be salvaged simply by recasting the claims. The
defects in Thomas's causes of action lie in Thomas's own fundamentally
contradictory statements that go to the essence of whether she can prove
a set of facts that would entitle her to relief. Better pleading will not
overcome the decisive damage of Thomas's sworn testimony and thus cure
her defective pleadings. Thus, repleading would be futile, and such a
futile request should be denied. See Cuoco v. Moritsuciu, 222 F.3d 99,
112 (2d Cir. 2000); In Re Independent Energy Holdings PLC Sec. Litig.,
154 F. Supp.2d 741, 773 (S.D.N.Y. 2001) ("[P]laintiffs need not be
granted leave to amend where amendment would be futile.").
D. NYSHRL CLAIMS
Aside from their differing statutes of limitations, claims under Title
VII and the parallel provisions of the NYSHRL require the same analysis.
See Reed v. A.W. Lawrence & Co., Inc., 95 F.3d 1170, 1177 (2d Cir.
1996) (considering claims under Title VII in tandem with claims under
NYSHRL "because New York courts rely on federal law when determining
claims under the New York Human Rights Law"). As a result, the Court
finds that Thomas's claims of gender discrimination and retaliation under
NYSHRL fail for the same reasons as set forth in the Court's analysis of
the claims under Title VII above.
E. SUBJECT MATTER JURISDICTION
Having ruled in favor of the Defendants' motion to dismiss pursuant to
Fed.R.Civ.P. 12(b)(6), this Court finds it unnecessary to consider
Defendants' motion to dismiss the NYSHRL caim pursuant to Fed.R.Civ.P.
12(b)(1), which raises the question of whether a notice of claim should
have been filed under the New York State Municipal Law § 50-e, and if
so, whether this Court has the proper subject matter jurisdiction to
consider a motion for leave to file a late notice of claim.
For the reasons set forth above, it is hereby ORDERED that Defendants'
motion to dismiss Thomas's Complaint in its entirety is GRANTED.
The Clerk of the Court is directed to close this case.