The opinion of the court was delivered by: HOWARD MUNSON, Senior District Judge
In his amended complaint, plaintiff brings this action for employment
discrimination seeking legal and equitable relief resulting from unlawful
employment practices on the basis of gender, under the Civil Rights Act
of 1964, 42 U.S.C. § 2000 et seq. (as amended)("Title" VII").
Plaintiff alleges that when he was hired by defendant Cornell as
Director of Athletic Communications in September 2000, his Supervisors
were Athletic Director Andy Noel ("Noel") and Associate Athletic Director
Anita Bryant ("Bryant"). His assistant was Laura
He quickly became aware that Noel and Stange had been intimately
involved prior to his arrival. Even though plaintiff was Stange's
superior, she would not communicate with him, and would only report to
Noel and Brenner. Her actions slowed the progress of work in the
department, did not advise him of decisions she made with or without his
consent. When he advised her in Brenner's presence that it was important
to communicate, she replied that she would continue to deal directly with
Brenner, but no attempt to alleviate this situation was made by Brenner.
Plaintiff alleges on information and belief that Stange acted the same
way toward the male predecessor in his position, and Brenner did nothing
to curtail this type of behavior by Stange. Plaintiff's complaints to
Linda Gasser, Human Resources Representative, and Brenner about Stange's
treatment of himself and his predecessor were unavailing.
In the fall of 2000, plaintiff had finalized the men's basketball
brochure for publication when Brenner told him to delay sending it to the
printer for publication because Noel wanted to delete certain
information. Plaintiff advised Brenner that making the change would delay
the publication, she replied that it had to be done.
In early January 2001, Brenner chastised plaintiff for the delay in
publication of the men's basketball brochure. The next day, Noel placed
plaintiff on paid leave for a week because of the late status of the
basketball brochure. Plaintiff then filed a grievance with defendant. He
met with Dr. Susan Murphy, Vice President for Student Services, and
explained the events that had been taking place in the department.
Plaintiff maintains that Dr. Murphy seemed to indicate that Noel and
Brenner had previously expressed criticism of him to her.
In mid-January, plaintiff met with Linda Gasser and Linda Starr, an
Employment Services Consultant, and received an offer for his
resignation, and, if he did not accept it he would be dismissed from his
position by Noel. Plaintiff resigned.
Plaintiff contends that in early February 2001, Linda Starr told him
that they wanted to remove him from his position because plaintiff was
fearful that Stange would institute a sexual harassment suit, which would
be more dangerous than any action he would take.
Plaintiff states that prior to his complaining about Stange's behavior,
he had gotten excellent performance reports. Thereafter, Brenner became
defensive and hostile and Noel began to avoid him. He feels that he was
disciplined and compelled to resign because they wished to avoid any
conflict with Stange.
Plaintiff further alleges on information and belief, that after his
resignation, he was contacted by Purchasing Director Helen Stone, who
advised him they wanted to get rid of him in the athletic department
because Noel wanted Stange to have his position because of her gender,
his past relationship with her and his fear that she might allege sexual
harassment and/or gender discrimination against Noel and defendant if
defendant tried to remove her from employment. Again on information and
belief, plaintiff claims Brenner treated him in a disparate and hostile
fashion and ignored his complaints against Stange because Stange was a
woman and he was a male and it was easier and safer to eliminate male
than a female. Furthermore, after Plaintiff's resignation, Stange
interviewed for the vacant Director of Athletic Communications job, and,
though unqualified, was appointed to the position in June 2001, on an
Currently before the court is defendant's motion to dismiss the
complaint pursuant to
Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff
has entered opposition to this motion.
A dismissal under Rule 12(b)(6) is a dismissal on the merits of the
action, a determination that the facts alleged in the complaint fail to
state a claim upon which relief may be granted. Teltronics Services,
Inc. v. L M Ericsson Telecommunications. Inc., 642 F.2d 31, 34 (2d Cir.)
cert. denied, 452 U.S. 960, 101 S.Ct. 3108, 69 L.Ed.2d 971 (1981). In
deciding a 12(b)(6) motion, the court must "accept as true all of the
allegations of the complaint and all reasonable inferences that can be
drawn therefrom, and view them in a light most favorable to the
non-moving party. Rocks v. City of Philadelphia, 868 F.2d 644, 645 (3rd
Cir. 1989). Dismissal of a claim is not proper unless it is obvious that
the plaintiff is unable to prove no set of facts supporting his claim
which would enable him to prevail. Robb v. City of Philadelphia,
733 F.2d 286, 290 (3rd Cir. 1984). A complaint may be dismissed,
however, when the fact plead and the reasonable inferences therefrom are
legally insufficient to support the relief sought. Pennsylvania v. ex
rel. Zimmerman v. Pepsico, Inc., 836 F.2d 173, 179 (3d Cir. 1986). "The
function of a motion to dismiss is ...