United States District Court, E.D. New York
August 9, 2004.
ROSALIND KRASNER, Plaintiff,
THE EPISCOPAL DIOCESE OF LONG ISLAND, CHURCH OF THE ADVENT, JEFFREY KRANTZ, Reverand (sued in his individual capacity pursuant to N.Y. Executive Law sec. 290 et seq.), KEN SYBESMA (sued in his individual capacity pursuant to N.Y. Executive Law sec. 290 et. seq.), Defendants.
The opinion of the court was delivered by: ARTHUR SPATT, District Judge
MEMORANDUM OF DECISION AND ORDER
This case involves claims by the plaintiff Rosalind Krasner
("Krasner" or the "plaintiff") of sexual harassment and hostile
work environment against The Episcopal Diocese of Long Island
("Diocese"), Church of the Advent ("Church"), Reverend Jeffrey
Krantz (Krantz"), and Reverend Ken Sybesma ("Sybesma") pursuant
to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e
("Title VII") and New York's Human Rights Law, N.Y. Exec. Law §
290 et seq. ("NYHRL"). Presently before the Court are the
following two motions: (1) a motion by the defendant Diocese to
dismiss the complaint pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure ("Fed.R. Civ. P."); and (2) a
cross-motion by the plaintiff Krasner for leave to file an
amended complaint pursuant to Fed.R.Civ.P. 15(a).
The following facts are taken from the complaint, which the
Court construes as true for the purpose of deciding the
Rule 12(b)(6) motion. On September 13, 1993, the Church hired the
plaintiff to operate the parish office. Her responsibilities
include maintaining finances, accounting of incoming money,
banking deposits, managing financial reports, cutting payroll
checks, paying monthly bills, scheduling Church and community
functions at the parish hall, addressing parishioners telephone
inquiries, and preparing bulletins. In addition to these
responsibilities, the plaintiff works closely with many
parishioners and their families for baptisms, funerals, weddings,
and other services.
On or about December 22, 1996, Krantz took over as Reverend for
the Church and became the plaintiff's immediate supervisor. On
April 15, 2002, Krantz handed the plaintiff a floppy disk to
print a letter from the disk. When the plaintiff opened the disk,
she discovered that it contained pornographic images. Krasner
asked Krantz why he gave her a disk with pornographic images, to
which he responded, "What did you think?" The plaintiff told him
that his behavior was unacceptable.
According to the plaintiff, after she confronted Krantz, he
began to increase his supervision over her, ridicule her in front
of others, and accuse her of incompetency. In the complaint, the
plaintiff describes a litany of incidents in which Krantz
humiliated and verbally abused the plaintiff to attempt to force
her to leave her position at the Church. In one such instance,
the plaintiff states that, in April 2002, Krantz became "furious"
with her because he thought that the plaintiff was processing
Sunday bulletin inserts too early. Krasner informed him that he
was frightening and worrying her. He responsed, "You had better
On April 30, 2002, the plaintiff was sick, out of work and
under the care of her treating physician. During that time, the
plaintiff, her mother, and her nurse kept Krantz apprised of her
health status. Krantz placed a letter in her mailbox questioning
her illness and requested that she respond to his letter. He
warned her that, if she did not return to work, she would be
fired. When the plaintiff returned to work, she handed a response
in writing to Krantz, at which time he threw her letter into a
trash can and stated that he did not care what she had to say.
In another situation, in an attempt to embarrass the plaintiff,
Krantz sent a letter to the entire congregation advising them
that he was "short-handed" and that he was unable to send out a
certain letter for a festival. Krasner also claims that Krantz
"confronted" the plaintiff about incorrect financial statements
which she did not prepare. In another situation, Krantz became
furious with the plaintiff because she did not inspect a van that
was going to be used by the Church. In addition, Krantz blamed
the plaintiff for losing two of his palm pilots and insinuated
that she was responsible for losing two of his cell phones.
Krantz, in front of several individuals, also blamed the
plaintiff for losing a donation check in the amount of $25,000.
With regard to Reverend Sybesma, who also worked for the
Church, the plaintiff claims that he began to sexually harass
her. According to the plaintiff, on several occasions, when the
plaintiff was away from her office, she returned to find Sybesma
in her office looking at pictures of nude men on her computer.
Furthermore, the plaintiff claims that Sybesma would often
masturbate at her desk while viewing the pornographic images.
According to the plaintiff, she complained to Krantz about
Sybesma's behavior, but he did nothing to stop it.
Finally, on April 15, 2002, the plaintiff reported the actions
of Krantz and Sybesma to Linda Haye, the office administrator of
St. Peter's Episcopal Church. Thereafter, in June 2002, the
plaintiff requested permission to take a thirty day leave of
absence to help take care of her mother who was undergoing two
major abdominal surgeries. Krantz denied her request. In October
2002, Krantz wrote a letter for the Church's November newsletter
that was sent to the entire congregation. Without specifically
referring to her name, the letter stated that the plaintiff was
an "ungrateful" employee. According to the plaintiff, she knew
that Krantz was referring to her because of her request for a
leave of absence. The plaintiff continued to complain to Haye
about the individual defendants.
On October 28, 2002, Haye recommended that the plaintiff
contact Father Joel Harvey ("Father Harvey"), the head of the
Long Island Diocese Response Team. On November 5, 2002, the
plaintiff spoke to Father Harvey, and he advised her to file a
formal complaint with him. Father Harvey further informed her
that the complaint would be kept confidential and that he would
arrange for a meeting with the Response Team to hear her
On December 3, 2002, the plaintiff, along with her
representative Susan Avellino, met with the Response Team and
reported the incidents with Krantz and Sybesma. The Response Team
"threatened" that if she commenced a legal action against Krantz
or Sybesma, Krantz would sue her. The Response Team determined
that the plaintiff and Krantz should not work together until
further notice. On December 6, 2002, the Response Team showed
Krantz the transcript of the December 3, 2002 meeting.
On December 8, 2002, the plaintiff telephoned Father Harvey and
asked him whether she could return to work. Two days later, the
plaintiff went to work and decided that if she saw Krantz's car,
she would leave, but because his car was not in the parking lot,
she remained at work. That same day, Father Harvey telephoned the
plaintiff to advise her that Krantz's response at the December 6,
2002 meeting was "contrite and sad" and that Krantz agreed to
apologize to the plaintiff. The Response Team proposed that
Krantz and the plaintiff work at separate time and not be in the
same room without supervision. The plaintiff was further advised
that the Bishop was to review her sexual harassment complaints.
On December 18, 2002, Father Harvey again telephoned the
plaintiff. He informed her that Krantz was inquiring as to
whether the plaintiff had spoken to the Church vestry members
about what had transpired and whether the plaintiff would accept
his apology. Krasner responded "no" to both inquiries. Because
the plaintiff was upset about what had happened with Krantz and
Sybesma, Father Harvey suggested that the plaintiff meet with a
therapist affiliated with the Church.
On December 21, 2002, Krantz informed the plaintiff via email
that he would be in the office Christmas week and advised her not
to come into work during that time. The plaintiff alleges that
she did not read the email and that, when she went to work, she
discovered that Krantz was already there. The plaintiff further
alleges that Krantz apologized to the plaintiff and informed her
that he was participating in a twelve step sexual abuse program.
Krantz also advised the plaintiff that he was going to seek
counseling and that, based on the Bishop's direction, he was
entering an out-of-state rehabilitation program.
On January 8, 2003, Krantz admitted to the plaintiff that the
Diocese placed a filter on his computer to prevent him from
downloading pornography. With a smirk on his face, Krantz stated
this would "keep him in line, and try to make him a good boy." On
January 16, 2003, the plaintiff wrote a letter to Father Harvey
to advise him that Krantz was in breach of his agreement and that
Krantz cut her yearly salary to $12,000 per year from $30,500.
In addition, at a May 20, 2003 meeting, Krantz announced that
any staff member who did not work a forty hour week would have
their vacation time reduced. Krasner claims that this
announcement was directed at her because she had always worked
less than forty hours each week. Krantz said to her, "you'll
probably have to quit now because you won't be able to afford
your mortgage." As a result of Krantz's implementation of the new
policy, the plaintiff's vacation time was cut down by one week.
Krasner claims that the Church, the Diocese, Krantz, and Sybesma
created a hostile work environment to force her to quit her
A. The Motion by the Diocese to Dismiss the Complaint
In reviewing a motion to dismiss for failure to state a claim
upon which relief may be granted pursuant to Rule 12(b)(6), the
Court should dismiss the complaint only if it appears beyond
doubt that the facts alleged in the complaint would not entitle
the plaintiff to relief. King v. Simpson, 189 F.3d 284, 287
(2nd Cir. 1999); see also, Bernheim v. Litt, 79 F.3d 318,
321 (2nd Cir. 1996). The Court must accept all of the
allegations in the complaint as true and draw all reasonable
inferences in favor of the plaintiff. See Koppel v. 4987
Corp., 167 F.3d 125, 138 (2nd Cir. 1999); Jaghory v.
N.Y.S.tate Dep't of Educ., 131 F.3d 326, 329 (2nd Cir. 1997).
When deciding a motion to dismiss for failure to state a claim,
the Court "must confine its consideration to facts stated on the
face of the complaint, in documents appended to the complaint or
incorporated in the complaint by reference, and to matters of
which judicial notice may be taken." Allen v. West
Point-Pepperell, Inc., 945 F.2d 40, 44 (2nd Cir. 1991). In
addition, the issue before the Court is not whether the
plaintiff's claim will ultimately prevail, but whether the
plaintiff is entitled to offer evidence in support of the claims.
Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378
(2nd Cir. 1995).
The plaintiff brings this action pursuant to Title VII and the
NYHRL. Title VII prohibits discrimination based on race, color,
religion, sex, or national origin by an "employer."
42 U.S.C. § 2000e-2. An "employer" is defined as "a person engaged in an
industry affecting commerce who has fifteen or more employees for
each working day in each of twenty or more calendar weeks in the
current or preceding calendar year, and any agent of such a
person." 42 U.S.C. § 2000e(b). An "employee" is "an individual
employed by an employer." 42 U.S.C. § 2000e(f). To establish that
the plaintiff is an "employee" within the definition of Title
VII, she must first show she was "hired by the putative
employer." United States v. City of New York, et al.,
359 F.3d 83, 92 (2d Cir. 2004). In addition to hiring,"the question of
whether someone is or is not an employee under Title VII usually
turns on whether he or she has received direct or indirect
remuneration from the alleged employer." York v. Ass'n of the
Bar, 286 F.3d 122, 125-26 (2d Cir. 2002) (quoting Pietras v.
Bd. of Fire Comm'rs of the Farmingville Fire Dist.,
180 F.3d 468, 473 (2d Cir. 1999)). The remuneration may be in the form of
a salary or consist of "substantial benefits not merely
incidental to the activity performed." Id. at 126.
The Diocese contends that the plaintiff is unable to maintain a
Title VII action against it because it is not an employer within
the meaning of Title VII. The Court agrees. The complaint does
not allege that the Diocese is her employer or even that an
employment relationship exists between it and the plaintiff or to
any other party in this action. Thus, the complaint must be
dismissed as to the Diocese.
The plaintiff also asserts claims pursuant to N.Y. Exec. Law §
296(1)(e). The NYHRL provides, in relevant part, that "it shall
be unlawful discriminatory practice . . . for an employer . . .
because of the age, race, creed, color, national origin, sex
. . . to discriminate against such individual in compensation or
in terms, conditions or privileges of employment." N.Y. Exec. Law
§ 296. In deciding a motion to dismiss, the Court considers the
claims under the New York Human Rights Laws in tandem with Title
VII claims. See, e.g., Horvath v. Am. Tissue Corp.,
210 F. Supp.2d 189, 192 (E.D.N.Y. 2002); Kaible v. U.S. Computer
Group, Inc., 27 F. Supp.2d 373, 377 (E.D.N.Y. 1998). Because
the plaintiff has not alleged that the Diocese is her employer
under Title VII, her claims against the Diocese under NYSHRL must
also be dismissed for similar reasons.
B. The Cross-Motion by the Plaintiff for Leave to file an
As a cross-motion, the plaintiff moves for leave to file an
amended complaint pursuant to Rule 15(a). This Rule permits a
party to amend their "pleading once as a matter of course at any
time before a responsive pleading is served. . . ." Fed.R. Civ.
P. 15(a). A motion to dismiss is not a responsive pleading under
Rule 15(a). Thompson v. Charter, 284 F.3d 411, 416 n. 2 (2d
Cir. 2002). As such, given that no responsive pleading has been
served in this case, the plaintiff's cross-motion for permission
to amend the complaint is unnecessary.
Based on the foregoing, it is hereby
ORDERED, that the Diocese's motion to dismiss the complaint
against it is GRANTED; and it is further
ORDERED, that the plaintiff's cross-motion for leave to file
an amended complaint is unnecessary given the procedural posture
of this case; and it is further
ORDERED, that the plaintiff is directed to file her amended
complaint within 30 days of the date of this Order; and it is
ORDERED, that the Clerk of the Court is directed to amend the
caption as follow:
© 1992-2004 VersusLaw Inc.