The opinion of the court was delivered by: David N. Hurd, District Judge.
MEMORANDUM-DECISION and ORDER
Defendants did not file an answer. Instead, defendants BNA, Brauerei Beck & Co., and John Lennon ("Lennon") now move to: (1) dismiss the first, second, fourth, fifth, sixth, seventh, eighth, ninth, tenth, and eleventh causes of action pursuant to Fed.R.Civ.P. 12(b)(6), or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56; and (2) dismiss the Complaint in its entirety against defendant Brauerei Beck & Co. pursuant to Fed. R. Civ. P. 12(b)(2) and 12(b)(5). Defendant Brian Walsh ("Walsh") also moves to dismiss the Complaint against him pursuant to Fed.R.Civ.P. 12, or in the alternative, for summary judgment. The plaintiff opposes. Oral argument was heard on July 12, 2002, in Utica, New York. Decision was reserved.
The following facts are taken from the Complaint which for purposes of a motion pursuant to Rule 12(b)(6), must be accepted as true. See Bernheim v. Litt, 79 F.3d 318, 321 (2d Cir. 1996).*fn1
Plaintiff was hired by Dribeck Importers*fn2 as a District Sales Manager in November 1997. (Compl. at ¶ 6.) In March 1999, plaintiff was promoted to the position of Regional Sales Manager. (Id. at ¶ 8.) Around the same time, Doug Hadlock ("Hadlock") was promoted to Vice President of Sales for the Northeast. (Id. at ¶ 11.) Hadlock became plaintiff's direct supervisor. (Id.)
Upon becoming Vice President of Sales, Hadlock began making comments to plaintiff such as inquiring whether it was her "time of the month," whether she had her "period," and stating that plaintiff's work problems were "a woman thing." (Id. at ¶¶ 12-13.) Hadlock also purportedly complained that he was "stuck with the only woman [Regional Sales Manager] in the company." (Id. at 13.) Hadlock told plaintiff's contacts at certain distributors that she was incompetent and inexperienced. (Id. at ¶ 14.) Hadlock also refused to provide plaintiff with the information and support necessary for her to do her job. (Id. at ¶ 15.) Hadlock also is alleged to have spread a rumor that plaintiff was having sexual relations with the BNA's Executive Vice President of Sales for the United States. Plaintiff frequently complained to BNA's Human Resources Department, but was advised that it was a personality problem that she would have to resolve herself. (Id. at ¶ 24.)
In or about January 2001, BNA hired a new CEO, defendant John Lennon. (Id. at ¶ 46.) In June 2001, BNA hired a Division Vice President for the Northeast, defendant Brian Walsh. (Id.) Walsh became plaintiff's new direct supervisor. (Id.) Plaintiff first met Walsh on August 15, 2001. (Id. at ¶ 46.) Walsh told plaintiff that she would have to "re-interview" for her job. (Id.) After the interview, there was a dinner meeting with other BNA employees and some distributor representatives. (Id. at ¶ 50.) After dinner, the group went to a bar for some drinks. (Id. at ¶ 50.) While at the bar, Walsh placed his arms around plaintiff's waist and grabbed her stomach. (Id. at ¶¶ 50 and 159) Plaintiff attempted to pull away. (Id. at ¶ 50) Several other times that night, Walsh put his arm around plaintiff and pulled her close to him. (Id.) In October 2001, while at a sales meeting in Chicago, Walsh asked plaintiff for a hug. (Id. at ¶ 66.) When plaintiff declined to give Walsh a hug, he persisted. (Id.) Ultimately, Walsh walked away. (Id.)
Plaintiff complained to management and the Human Resources Department about Walsh's conduct. (Id at ¶¶ 54-55.) The Complaint alleges that Walsh then began a campaign of retaliation against plaintiff by undermining her efforts to do her job and otherwise making it impossible for her to do her job. (Id. at ¶ 66.) For example, Walsh met with other regional sales managers to discuss specifics about their territories and to provide them with information about marketing plans and budgets, but did not meet with plaintiff. (Id. at ¶ 69.) Walsh also failed to provide plaintiff with the information necessary for her to prepare the required 2002 marketing and budget plans for her territory. (Id. at ¶¶ 70-74.) The Complaint alleges that this pattern of harassment has caused plaintiff anxiety and mental distress, and that she has been discriminated against with regard to the terms and conditions of her employment on account of her gender. (Id. at ¶¶ 82, 97.)
Defendants have moved to dismiss pursuant to Fed.R.Civ.P. 12, or in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Based on the record presented, it does not appear that the parties have engaged in significant discovery, if any at all.*fn3 Because defendants have asked for relief pursuant to Rule 12(b)(6), and the parties have not had sufficient opportunity to discover and produce those facts that may be pertinent for a summary judgment motion, defendants' motions will be treated as ones made pursuant to Rule 12, and not as motions for summary judgment pursuant to Rule 56. See Patel v. Searles, No. 99-Civ-1230, 2000 WL 306881, at *1 (D.Conn. Jan. 6, 2000); Llanes v. EMSA Limited P'ship, 996 F. Supp. 314, 316 (S.D.N.Y. 1998); Silveri v. Mirsky, Nol 95-Civ-10234, 1997 WL 473544, at *1 n. 1 (Aug. 19, 1997). Accordingly, matters outside the pleadings will be excluded. See Fed.R.Civ.P. 12(b).
The Supreme Court recently affirmed that "`[a] court may dismiss a complaint [under Fed.R.Civ.P. 12] only if it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002) (quoting Hishon v. King & Spalding, 467 U.S. 69, 73 (1984)). With respect to employment discrimination cases, the Supreme Court rejected this Circuit's practice of requiring a complaint to allege a prima facie case of discrimination to survive a motion to dismiss. Swierkiewicz, 534 U.S. at 508-14. The Court held that such a "heightened pleading standard in employment discrimination cases conflicts with Federal Rule of Civil Procedure 8(a)(2), which provides that a complaint must only include `a short and plain statement of the claim showing that the pleader is entitled to relief.'" Id. at 512 (quoting Fed.R.Civ.P. 8(a)). "This simplified notice pleading relies on liberal discovery rules and summary judgment motions to define disputed facts and issues and to dispose of unmeritorious claims." Id.
However unlikely it may appear to a court from a
plaintiff's complaint that he will ultimately be able
to prove an alleged fact such as mental state, the
court may not go beyond FRCP 8(a)(2) to require the
plaintiff to supplement his pleadings with additional
facts that support his allegation of knowledge either
directly or by inference. Whether the plaintiff can
produce evidence to create a genuine issue with regard
to his allegation is to be resolved through a motion
for summary judgment.
Phelps v. Kapnolas, 308 F.3d 180, 186-187 (2d Cir. 2002). Thus, a complaint is sufficient if it gives the defendant fair notice of the plaintiff's claims, the grounds upon which they rest, and states claims upon which relief could be granted. Swierkiewicz, at 514.
A. Personal Jurisdiction Over Brauerei Beck & Co.
Plaintiff concedes that Brauerei Beck & Co. has not been served with process and that personal jurisdiction is lacking. (Pl. Mem. of Law at 10 n. 3.) Accordingly, the Complaint must be dismissed against Brauerei Beck & Co.
B. Negligent Infliction of Emotional Distress and Negligent Retention
Plaintiff "does not oppose" dismissal of her fifth and ninth causes of action and, therefore, they must also be dismissed. (Pl. Mem. of Law at 10 n. 3.)
C. Plaintiff's Hostile Work Environment Claims
1. Hostile Work Environment Based on Discrimination Toward Others
Defendants move to dismiss plaintiff's first and second causes of action to the extent that she seeks to recover based on the alleged sexual harassment of other women. Indeed, plaintiff makes several references throughout her Complaint to alleged harassment sustained by other female employees of BNA. (See, e.g., Compl. at ¶¶ 53, 60, 64, 65, and 67.) Defendants' argument that harassment directed at other co-workers is only relevant provided that plaintiff was present when the alleged harassment occurred or knew of the harassment while it was ongoing is untenable and contrary to settled Second Circuit precedent.*fn4
While the prohibition against hostile work environment discrimination "affords no claim to a person who experiences it by hearsay," Leibovitz v. New York City Transit Auth., 252 F.3d 179, 182 (2d Cir. 2001), and fails "to allege or prove that harassment of other women adversely affected the terms and conditions of her own employment," "evidence of harassment directed at other co-workers can be relevant to an employee's own claim of hostile work environment discrimination." Id. at 190. "`Because the crucial inquiry focuses on the nature of the workplace environment as a whole, a plaintiff who herself experiences discriminatory harassment need not be the target of other instances of hostility in order for those incidents to support her claim.'" Id. (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)) (emphasis in Leibovitz) (and cases cited therein). Thus, in Schwapp v. Town of Avon, 118 F.3d 106, 111 (2d Cir. 1997), for example, the Second Circuit held that a district court erred in excluding from consideration alleged incidents of racial discrimination that occurred outside of the plaintiff's presence. One of the alleged incidents occurred before the plaintiff's employment with the defendant, and two other incidents involved hostility towards minority groups of which the plaintiff was not a member. See id. The Second Circuit stated that:
The Supreme Court has cautioned us to consider the
totality of the circumstances in cases such as this.
See Harris v. Forklift Sys. Inc., 510 U.S. 17, 23
(1993)]. . . . The mere fact that [the plaintiff] was
not present when a racially derogatory comment was
made will not render that comment irrelevant to [her]
hostile work environment claim. Just as a racial
epithet need not be directed at a plaintiff in order
to contribute to a hostile work environment . . ., the
fact that a plaintiff learns second-hand of a racially
derogatory comment or joke by a fellow employee or
supervisor also can impact the work environment.
. . . [S]uch conduct, "if part of a pervasive ...