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KATO v. ISHIHARA

United States District Court, Southern District of New York


December 27, 2002

YUKA KATO, PLAINTIFF,
V.
GOVERNOR SHINTARO ISHIHARA AND THE TOKYO METROPOLITAN GOVERNMENT, DEFENDANTS.

The opinion of the court was delivered by: Berman, District Judge.

  ORDER

I. Introduction

On July 21, 2001, Yuka Kato ("Kato" or "Plaintiff") filed a complaint ("Complaint") against her employer, the Tokyo Metropolitan Government ("TMG"), and Shintaro Ishihara ("Ishihara"), the Governor of Tokyo, Japan (collectively, "Defendants"), seeking damages and declaratory and injunctive relief for alleged sexual harassment and retaliation, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et. seq., as amended, New York State Human Rights Law, N.Y. Exec. Law § 291 et. seq. ("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107 ("NYCHRL").*fn1

On March 28, 2002, Defendants moved to dismiss Plaintiffs claims ("Defendants' Motion") pursuant to Federal Rule of Civil Procedure ("Fed.R.Civ.P.") 12(b)(1), 12(b)(2), and 12(b)(6), arguing, among other things, that (i) "Kato's Title VII claims arising out of alleged acts that occurred in the United States are time barred," (ii) "the alleged retaliation occurred outside of the United States," (iii) "TMG is immune from liability under the Foreign Sovereign Immunities Act (`FSIA')," (iv) "the Complaint must be dismissed on the ground of forum non conveniens," and (v) "claims against Ishihara must be dismissed for lack of personal jurisdiction." Defendants' Motion at 2-3. On May 17, 2002, Plaintiff opposed the motion ("Plaintiffs Opposition") and, on or about July 5, 2002, Defendants filed a reply ("Defendants' Reply").

For the reasons set forth below, the Court grants Defendants' Motion to dismiss the Complaint.

II. Standard of Review

"[A] foreign state is presumptively immune from the jurisdiction of the United States courts; unless a specified exception applies, a federal court lacks subject matter jurisdiction over a claim against a foreign state." Saudi Arabia v. Nelson, 507 U.S. 349, 355, 113 S.Ct. 1471, 123 L.Ed.2d 47 (1993). "On a motion under Fed.R.Civ.P. 12(b)(1), challenging the district court's subject matter jurisdiction, the court may resolve disputed jurisdictional fact issues by reference to evidence outside the pleadings, such as affidavits." Antares Aircraft, L.P. v. Federal Republic of Nigeria, 948 F.2d 90, 96 (2d Cir. 1991).

"[A]n employment discrimination complaint . . . must contain only `a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992, 998, 152 L.Ed.2d 1 (2002) (quoting Fed.R.Civ.P. 8(a)(2)).

A court may dismiss an action pursuant to Rule 12(b)(6) only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of the claim which would entitle [her] to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957)). The court "must accept the factual allegations of the complaint as true and must draw all reasonable inferences in favor of the plaintiff." Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996). The issue to be resolved by the court is not whether the plaintiff will ultimately prevail on his or her claim; it may, in fact, appear on the face of the pleadings that a recovery is unlikely. Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d 90 (1974). The test is whether or not the plaintiff is entitled to offer evidence in support of the allegations in his or her complaint. Id. The Court is "limited to the factual allegations in plaintiffs . . . complaint, which are accepted as true, to documents attached to the complaint as an exhibit or incorporated in it by reference, to matters of which judicial notice may be taken, or to documents either in plaintiffs possession or of which plaintiff[] had knowledge and relied on in bringing suit." McNulty v. New York City Dep't of Fin., 941 F. Supp. 452, 453 (S.D.N.Y. 1996) (quoting Brass v. Am. Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993)).

III. Analysis

The facts set forth in the Complaint are accepted as true.

A. TMG and Ishihara are Immune from Suit

TMG and Ishihara are immune from suit in the United States. See 28 U.S.C. § 1604 ("a foreign state shall be immune from the jurisdiction of the courts of the United States and of the States"). Under the FSIA, a foreign state and its agencies and instrumentalities — such as TMG and Ishihara here — are immune from suit in the United States "absent an express waiver of immunity or an applicable statutory exception."*fn2 Mukaddam v. Permanent Mission of Saudi Arabia to the United Nations, 111 F. Supp.2d 457, 463 (S.D.N.Y. 2000); see 28 U.S.C. § 1603.

Plaintiff argues that the "commercial activity" exception to the FSIA applies here.*fn3 TMG "should not be permitted to claim the protections afforded by the FSIA" because TMG engaged in "patently commercial activity" in New York, and Plaintiff engaged, in part, in "purely commercial activities." Plaintiffs Opposition at 14. Plaintiff alleges that, among other things, she "promoted Japanese products, attended trade shows, . . . [and] engaged in sales activities" in New York. Id. at 11-12. Defendants respond that "TMG is immune under the FSIA because it is indisputable that Kato [Plaintiff] is a Japanese civil servant," Defendants' Motion at 2, and "[c]lassification of an individual as a civil servant is determinative of the issue regardless of the tasks being performed." Id. at 9. Defendants also assert that "the FSIA provides complete immunity to individuals who are officials of a foreign government when they are sued in their official capacity." Defendants' Motion at 15.

Defendants' arguments are persuasive. "Allegations of sexual harassment [against a foreign instrumentality] are necessarily . . . `based upon' the defendants' employment of [plaintiff]." Zveiter v. Brazilian Nat'l Superintendency of Merchant Marine, 833 F. Supp. 1089, 1094 (S.D.N.Y. 1993). And, in Mukaddam, a case similar to the one at bar, the court noted that "[t]he legislative history of the FSIA indicates that Congress considered the employment of `diplomatic, civil service, or military personnel' to be `governmental and not commercial in nature.'" Mukaddam, 111 F. Supp.2d at 463. "If plaintiff [is] either a civil servant or a diplomatic officer, her employment [is] not commercial in nature and the FSIA's commercial acts exception to sovereign immunity would not bring plaintiffs lawsuit . . . within the jurisdiction of this Court." Id.; see also Elliott v. British Tourist Auth., 986 F. Supp. 189,193 (S.D.N.Y. 1997).

Defendants assert, and Plaintiff does not dispute, that "Kato is a Japanese civil servant." Defendants' Motion at 2. "Since becoming a TMG employee in April 1988 and at all times since, including the time she was temporarily stationed in New York, Kato's employment with the TMG has been fully governed by [Japan's] Local Public Servant Law." Id. at 9. Kato was "legally required to sit for and pass a competitive examination administered by the TMG's Personnel Commission," id. at 4, and is (i) "classified as a local public servant," (ii) "guaranteed lifetime employment with the TMG," (iii) "subject to the same compensation and benefits as all other public servants in her defined category," and (iv) "transferred based on an established rotation system." Id. at 9.*fn4

Ishihara, as Governor of Tokyo, is also immune under the FSIA.*fn5 See Bryks v. Canadian Broad. Corp., 906 F. Supp. 204, 210 (S.D.N.Y. 1995) ("[I]mmunity under the FSIA extends also to agents of a foreign state acting in their official capacities."). "`It is generally recognized that a suit against an individual acting in his official capacity is the practical equivalent of a suit against the sovereign directly.'" Id. (quoting Chuidian v. Philippine Nat'l Bank, 912 F.2d 1095, 1101 (9th Cir. 1990)).

B. Title VII, NYSHRL, and NYCHRL Claim(s)

Assuming arguendo that the Court did have subject matter jurisdiction, Plaintiffs sexual harassment and retaliation claims under Title VII would be dismissed. Plaintiff alleges that "beginning almost immediately after [her] arrival [on May 11, 1998]" to work in TMG's New York Office, her supervisor, Kenzo Toriumi ("Toriumi"), "made aggressive, offensive, and continued sexual advances towards [her]." Complaint ¶ 13. Toriumi also "coerced sexual intercourse from [her] as a condition of [her] employment at TMG." Id. ¶ 14. Plaintiff later "refuse[d] any further sexual intercourse with [Toriumi]" and, in December 1999, filed an internal complaint ("Internal Complaint") pursuant to TMG policy. Id. ¶¶ 15, 17. On March 23, 2000, "Kato's rotation [in New York] ended . . . and Kato was transferred back to Japan to work at the Tokyo Metropolitan University." On July 1, 2000, the TMG's New York Office (permanently) closed. Nakai Aff. ¶¶ 3,6. Plaintiff filed a complaint with the United States Equal Employment Opportunity Commission ("EEOC"), but did not do so until February 12, 2001.

Time Bar

Defendants (correctly) contend that "[a]ll of [Plaintiffs] allegations relating to acts that took place while she was employed in New York are time-barred [under Title VII] because they occurred more than 300 days prior to the date of her filing with the EEOC" on February 12, 2001. Defendants' Motion at 6; see Commodari v. Long Island Univ., 89 F. Supp.2d 353, 369 (E.D.N.Y. 2000) ("An aggrieved employee has 300 days from the time when the or she knew or should have known of an adverse employment [action] to file a charge of discrimination with the EEOC.") (citing 42 U.S.C. § 2000e-5(e)(1) (1994); Harris, 186 F.3d at 247 n. 2). Because Plaintiff filed her EEOC charge on February 12, 2001, acts or events that occurred before April 18, 2000 — i.e. Toriumi's alleged sexual harassment of Plaintiff — are time-barred.*fn6,*fn7

Retaliation Claims

Plaintiff claims that when she refused to have sexual intercourse with Toriumi, he "retaliated against her." Complaint T 16. Plaintiffs Complaint is deficient in this regard because she does not provide any indication of how or when the alleged retaliation occurred. See Moscowitz v. Brown, 850 F. Supp. 1185, 1190 (S.D.N.Y. 1994) ("Despite the liberality of [the motion to dismiss] standard, only the `well-pleaded' factual allegations will be taken as true. Baldly conclusory statements that fail to give notice of the basic events of which the plaintiff complains need not be credited by the court.") (citations omitted).

Plaintiff also alleges that, on April 19, 2000, after she had returned to Tokyo, Defendants retaliated against her by "fail[ing] to promote her as would otherwise have been the case." Complaint ¶¶ 18-19. The Complaint is deficient because Plaintiff fails to give Defendants "fair notice of what [her] claim is and the grounds upon which it rests." Swierkiewicz, 122 S.Ct. at 998. Among other things, nowhere in the Complaint does Plaintiff specify the position to which she expected to be promoted.*fn8 See Johnson v. City Univ. of N.Y., No. 00 Civ. 4964, 2002 WL 1750841, at *4 (S.D.N.Y. July 24, 2002) (plaintiff failed to provide Defendant "fair notice of . . . the grounds upon which [his claim] rests" when he did not "indicate for which available position [Defendant] failed to hire him").*fn9

Claims Against Ishihara

Apart from Ishihara's immunity under the FSIA for acts he committed in his official capacity, "[i]t is well settled that an individual may not be held liable under Title VII." Johnson v. New York Presbyterian Hosp., No. 00 Civ. 6776, 2001 WL 829868, at *3 (S.D.N.Y. July 20, 2001). And, under both the NYSHRL and NYCHRL, no cause of action lies against Ishihara in his individual capacity because Plaintiff has failed to allege in the Complaint that Ishihara engaged in any wrongful acts.*fn10,*fn11 See Jong-Fwu v. Overseas Shipholding Group, No. 00 Civ. 9682, 2002 WL 1929490, at *7 (S.D.N.Y. Aug. 21, 2002) (while an individual can be sued "under both [the NYSHRL and the NYCHRL], the plaintiff must show that the [individual] defendant engaged in `discriminatory acts.'").

C. Forum Non Conveniens

Even if this Court had jurisdiction to address Plaintiffs claims, the Complaint would likely be dismissed on the grounds of forum non conveniens.*fn12 Here, among other factors that favor a suit in Tokyo, are the following: (i) a case "concerning the same general matters that are at issue in [this case]," has already been filed by the Plaintiff against TMG and is currently pending in the Tokyo District Court ["Tokyo Suit"], Kato Decl. ¶ 15, (ii) "TMG has not challenged the jurisdiction of the Tokyo District Court," Defendants' Motion at 10, (iii) the parties have appeared in the Tokyo District Court on at least three occasions, Nakai Aff. ¶ 11, (iv) "Defendant [TMG] is a [Tokyo] municipality with no offices in New York," Defendants' Motion at 11, (v) Ishihara is the Governor of Tokyo, Complaint ¶ 8, and (vi) Plaintiff is a Japanese citizen.*fn13 Id.

IV. Conclusion and Order

For the foregoing reasons, the Court grants Defendants' Motion to dismiss the Complaint. The Clerk of the Court is respectfully directed to close this case.


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