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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. ยง 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 ...

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