United States District Court, N.D. New York
January 27, 2004.
ERIC McDOWELL, Plaintiff
CORNELL UNIVERSITY, Defendant
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 merely to assess the legal feasibility
of the complaint, not to assay the weight of the evidence which might be
offered in support thereof." Ryder Energy Distribution Corp. v. Merrill
Lynch Commodities, Inc., 748 F.2d 744, 749 (2d Cir. 1984)(quoting Geisler
v. Petrocelli, 616 F.2d 636, 639).
Plaintiff amended his complaint as a matter of course pursuant to
Rule 15(a) of the Federal Rules of Civil Procedure. Defendant contends that
plaintiff's original complaint should be considered by the court because
of the doubt it casts upon the allegations made in the
amended complaint. The court declines to consider plaintiff's original
An amended complaint supersedes an original complaint and the
allegation in plaintiff's original complaint cannot be used to dismiss
the plaintiff's amended complaint. Kelley v. Crossfield Catalysts,
135 F.3d 1202, 1204 (7th Cir. 1998). An amended complaint need not be
consistent with all prior pleadings. When that occurs, the prior pleading
ceases to be a conclusive judicial admission and remains only as an
evidentiary admission that may be admissible at trial. Contractor Utility
Sales Co. v. Cetain-Teed Products Corp., 638 F.2d 1061. 1084-85 (7th
Cir. 1981); Frederic P. Wiedersum Associates v. National Homes
Construction Corp., 540 F.2d 62, 65 (2d Cir. 1976).
Title VII provides that "[i]t shall be an unlawful employment practice
for an employer . . . to discharge any individual, or otherwise to
discriminate against any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such
individual's . . . sex . . . " 42 U.S.C. § 2000e-2 (a)(1). "Sex" in this
context means gender, not behavior or affectation.
While Title VII does prohibit discrimination "it is not a shield
against harsh treatment at the work place. Personal animosity is not the
equivalent of sex discrimination. . . . The plaintiff cannot turn a
personal feud into a sex discrimination case. . . ." McCollum v. Bolger,
794 F.2d 602, 610 (11th Cir. 1986). Regardless of the factual context,
the court's analysis focuses only on whether the complaining employee was
targeted because of his or her gender, Oncale v. Sundowner Offshore
Services. Inc., 523 U.S. 75, 80, 118 S.Ct. 998, 1992, 140 L.Ed.2d 201
(1998)(Title VII does not prohibit all verbal or physical harassment in
the workplace, it is directed only at `discrimination . . . because of
. . . sex').
The plaintiff is required to establish that the harassment complained
of was based on gender. Cosgrove v. Sears, Robuck & Co., 9 F.3d 1023,
1042 (2d Cir. 1993). In order to show that the allegedly harassing
conduct was motivated by gender, or that gender played a motivating part
in the employment decision, the plaintiff must show that one of the
reasons for the harassment or decision was the plaintiff's sex.
Galdieri-Ambrosini v. National Realty & Development Corp., 136 F.3d 276,
289 (2d Cir. 1998).
In the amended complaint, plaintiff alleges that shortly after he
started work for defendant, he discovered that his assistant Laura Stange
had or had had a sexual relationship with his boss, Andy Noel. He soon
found out the ramifications of this relationship when Stange advised him
that even though he was her supervisor, she would only be reporting to
Dale or Anita Brenner. Thereafter, Stange would not work in unison with
plaintiff, and repeatedly functioned outside of the department's command
structure. When plaintiff complained about this situation, his complaints
were not addressed by department head Noel.
He was unfairly blamed for the late publication of the men's basketball
brochure even though Stange had not been chastised when she had
previously sent a football brochure to the printer which contained many
errors and had to be reprinted. A short time later, plaintiff Noel asked
plaintiff to resign, and he did. Subsequently, Stange was given an interim
appointment to fill his former position.
Plaintiff's gender discrimination claim arises from the favorable
treatment he perceived Stange received from Noel.
Preferential treatment on the basis of an intimate relationship does
not constitute sex discrimination. DiCintio v. Westchester County
Medical Center, 807 F.2d 304, 308 (2d Cir.
1986); Sullivan-Weaver v. New York Port Authority, 114 F. Supp. 240, 242
(S.D.N.Y. 2000).While it may have been reasonable to believe that such an
allegation could constitute discrimination prior to the Second Circuit's
decision in DiCintio, it was no longer reasonable to believe so over ten
years later. While Noel may have given Stange preferential treatment, the
preference was based upon a relationship between Stange and Noel, not on
Noel's conduct though unfair, did not violate Title VI. A consensual
sexual relationship between a supervisor and an employee does not give
other employees a Title VII cause of action, because such a relationship
prejudices male and female employees equally. DiCintio, 807 F.2d at 308.
Plaintiff was not prejudiced because he was a male, rather he was
discriminated against because Noel preferred his paramour.
Plaintiff's interpretation "of Title VII prohibitions against sex
discrimination would involve the EEOC and federal courts in the policing
of intimate relationships. Such a course, founded on a distortion of the
word "Sex" in the context of Title VII, is both impracticable and
Accordingly, defendant's motion is GRANTED and the complaint is
IT IS SO ORDERED.
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