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United States District Court, N.D. New York

January 27, 2004.

ERIC McDOWELL, Plaintiff

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 Page 2 Stange.

  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. Page 3

  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 interim basis.

  Currently before the court is defendant's motion to dismiss the complaint pursuant to Page 4 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 Page 5 amended complaint. The court declines to consider plaintiff's original complaint.

  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'). Page 6

  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. Page 7 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 gender.

  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 unwarranted." Id.

  Accordingly, defendant's motion is GRANTED and the complaint is DISMISSED



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