The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
The plaintiff in this case, Beate Walter, commenced this employment
discrimination action against Westdeutscher Rundfunk, ARD German Radio
New York ("Westdeutscher") pursuant to Title VII of the Civil Rights Act
of 1964 ("Title VII"), 42 U.S.C. § 2000e et. seq., the New York State
Human Rights Law (the "NYSHRL"), N.Y. Exec. Law § 296 et seq., and the
New York City Human Rights Law (the "NYCHRL"), N.Y. City Admin. Code §
8-101 et seq. She claims that Westdeutscher, her former employer,
discriminated against her and discharged her on the basis of her sex and
disability and in retaliation for complaints she had previously filed.
Westdeutscher has moved to dismiss the Complaint pursuant to Rule 12(b)(6)
of the Federal Rules of Civil Procedure, claiming that the plaintiff has
failed to state a claim upon which relief can be granted. For the reasons that follow, I recommend that the defendant's
motion be granted in part and denied in part.
Ms. Walter was employed by Westdeutscher as a radio producer from
September 1999 through February 15, 2002. (Complaint ("Compl."), ¶¶ 7,
35). Ms. Walter is a German citizen but was living in New York during the
time she was employed by Westdeutscher. (Compl., ¶ 4). During the course
of her employment there, Thomas Nehls was Ms. Walter's immediate
supervisor. (Compl., ¶ 9). According to Ms. Walter, Mr. Nehls began
bringing her gifts during the spring of 2000. (Compl., ¶ 13). In April
of that year, Mr. Nehls invited Ms. Walter to join him at an affair at
the United Nations, but Ms. Walter declined. Ms. Walter claims that after
she refused his invitation, Mr. Nehls began criticizing her and giving
her "new orders, which were sometimes conflicting or incomprehensible."
(Compl., ¶¶ 14, 15). According to Ms. Walter, Mr. Nehls began "harassing"
her about her visa, claiming that it was expired. When she presented him
with a new visa, he told her that it "looked fake and [she should] get a
better one." (Compl., ¶ 16). Because of Mr. Nehls' conduct, Ms. Walter
informed him that she would be returning to Germany in September 2000, at
which point Mr. Nehls "begged her to stay asserting that he could not do without her and he
needed her." (Compl., ¶ 17). When Ms. Walter agreed to stay, Mr. Nehls
offered her a contract as a full time producer. (Compl., ¶ 17). Ms.
Walter alleges that on October 30, 2000, Mr. Nehls terminated her for
having an expired visa, giving her six weeks notice as was required by
her contract. (Compl., ¶ 18). Although Mr. Nehls cited the missing
visa, Ms. Walter also claims that he told her that he had fired her
because she had complained about him. (Compl., ¶ 18). Ms. Walter
contends that after she told Mr. Nehls' editor-in-chief, Helga Kirchner,
and a supervisor, Joerg Kaminski, about her termination, she later
overheard Mr. Nehls "slandering her." (Compl., ¶¶ 19, 20). Mr. Nehls
subsequently convened a meeting with Ms. Walter, Westdeutscher
correspondent Carsten Vick, and another producer, at which he "berated
Ms. Walter for not adhering to the proper [Westdeutscher] hierarchies
when filing a complaint." (Compl., ¶ 21). Ms. Walter alleges that
notwithstanding this criticsm, Mr. Nehls also told her that her
"complaints would end up in his waste paper basket." (Compl., ¶ 21). On
December 15, 2000, the day Ms. Walter believed was her final day of
work, Mr. Nehls told her that her termination was a joke, and that she
was expected to be at work the following Monday. (Compl, ¶ 22). During the summer of 2001, Ms. Walter claims that she went into Mr.
Nehls' office to have some papers signed and found him "rubbing his
genitals" while talking on the phone. According to Ms. Walter, he
continued to rub himself while she was standing in front of him.
(Compl., ¶ 23). The plaintiff contends that by November 2001, her health
began to suffer due to "Mr. Nehls' daily harassment." (Compl., ¶ 24).
She claims that on November 27, 2001, following an incident of harassment
by Mr. Nehls, she developed chest pains, accompanied by pain and numbness
in her left shoulder, arm, and leg. (Compl., ¶ 26). This condition
returned on November 30, 2001, and Ms. Walter was admitted to the
emergency room at Beth Israel Medical Center. Both times, she was told by
doctors that the condition was stress related. (Compl., ¶¶ 27, 28).
According to Ms. Walter, Mr. Nehls made "negative references" about her
various health problems and indicated that they could result in the loss
of her job. (Compl., ¶ 25).
On December 27, 2001, Mr. Nehls terminated Ms. Walter. He told her that
the reason for her termination was "the alleged contempt for mankind and
coldness that [she] emanates at the office," and he informed her that
fellow employees refused to work with her. (Compl., ¶¶ 30, 31). He
did, however, offer her an opportunity to resign, rather than be terminated. (Compl., ¶
31). On December 28, Mr. Nehls gave Ms. Walter a written notice of
termination. (Compl., ¶ 32). On January 24, 2002, Ms. Walter saw a
neurologist regarding "persistent pins and needles sensation and
reoccurring numbness." Her condition was found to be related to stress
and anxiety, and Ms. Walter was placed on medication (Compl., ¶¶ 33,
34). The plaintiff's last day of work was February 15, 2002. She contends
that following her termination, Mr. Nehls refused to sign references for
her to confirm her employment. (Compl., ¶ 35).
On July 26, 2002, Ms. Walter filed a formal charge of employment
discrimination with the Equal Employment Opportunity Commission, and on
May 29, 2003, she received a right-to-sue letter entitling her to
commence a civil action under Title VII. (Compl., ¶ 6., Exh. A;
Memorandum of Law in Support of Pre-Answer Motion Pursuant to
Fed.R.Civ.P. 12(b)(6) to Dismiss Plaintiff's Complaint ("Def. Memo.") at
A. Standard for a Motion to Dismiss
In considering a motion to dismiss pursuant to Rule 12(b)(6) of the
Federal Rules of Civil Procedure, the court must accept as true all
factual allegations in the complaint and must draw all inferences in favor of the plaintiff. Leatherman v. Tarrant County
Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 164 (1993);
Freedom Holdings, Inc. v. Spitzer, 363 F.3d 149, 151 (2d Cir. 2004);
Hernandez v. Coucrhlin, 18 F.3d 133, 136 (2d Cir. 1994). Accordingly, a
complaint may not be dismissed "unless it appears beyond doubt that the
plaintiff can prove no set of facts in support of his claim which would
entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957)
(footnote omitted). These principles are even more strictly applied where
the plaintiff alleges civil rights violations. Leather v. Ten Eyck,
180 F.3d 420, 423 (2d Cir. 1999); Hernandez, 18 F.3d at 136. A complaint
need only provide "a short and plain statement of the claim showing that
the pleader is entitled to relief." Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 512 (2002) (quoting Fed.R.Civ.P. 8(a)(2)). A motion to
dismiss may be granted "only if it is clear that no relief could be
granted under any set of facts that could be proved consistent with the
allegations." Id. at 514 (internal quotation marks and citation
Ms. Walter alleges that Westdeutscher violated Title VII and the NYSHRL
when it "engaged in an unlawful employment practice" by "terminating and otherwise discriminating against Plaintiff because of
her sex (sexual harassment)." (Compl., ¶¶ 37, 41). She further claims that
the defendant discriminated against her because of her gender in
violation of the NYCHRL. (Compl., ¶ 47).
Title VII prohibits discriminatory employment practices on the basis of
gender and other impermissible classifications. See
42 U.S.C. § 2000e-2(a)(1). To state a prima facie case of gender
discrimination under Title VII, a plaintiff must show (1) that she was a
member of a protected group; (2) that she was qualified for the job in
question; (3) that the defendant took an adverse employment action
against her; and (4) that the circumstances support an inference of
discrimination on the basis of her membership in that protected class.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) (footnote
omitted); Graham v. Long Island Rail Road, 230 F.3d 34, 38 (2d Cir.
2000).*fn1 "A plaintiff may raise such an inference [of discrimination]
by showing that the employer subjected him to disparate treatment, that is,
treated him less favorably than a similarly situated employee outside his
protected group." Graham, 230 F.3d at 39 (citations omitted).
While a plaintiff need not plead every element of a prima facie case in
order to survive a motion to dismiss, she must provide fair notice to the
defendant of her claim and allege some facts on which "relief could be
granted . . . consistent with the allegations." Swierkiewicz, 534 U.S. at
514 (citation omitted); Timothy v. Our Lady of Mercy Medical Center, No.
03 Civ. 3556, 2004 WL 503760 at *5 (S.D.N.Y. March 12, 2004). Here, Ms.
Walter has not given the defendant "fair ...