United States District Court, S.D. New York
November 17, 2004.
RICHARD CRUZ, Plaintiff,
OXFORD HEALTH PLANS, INC., Defendants.
The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge
MEMORANDUM OPINION AND ORDER
The plaintiff, Richard Cruz, brings this action for gender
discrimination, sexual harassment, and retaliation against the
defendant, Oxford Health Plans, Inc., ("Oxford"), under Title VII
of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq.
("Title VII"), and the New York State Human Rights Law, New York
Executive Law §§ 290 et seq. Oxford has moved pursuant to
Rule 12(f) of the Federal Rules of Civil Procedure to strike from
the amended complaint*fn1 (1) allegations about an alleged
consensual affair that Mr. Cruz's supervisor supposedly had with
an Oxford doctor, and (2) allegations about proceedings before an
unemployment commission which led to the denial of Mr. Cruz's
unemployment benefits. For the following reasons, Oxford's motion
is granted in part and denied in part.
In his amended complaint ("Am. Compl."), Mr. Cruz alleges that he was sexually harassed by a manager, Laurie DeRosa, and that he
was discriminated against on the basis of his gender because he
rejected Ms. DeRosa's sexual advances. (Am. Compl. ¶¶ 1-2). His
theory is that "Ms. DeRosa believed her work environment was a
source of a `dating pool' for her, and that once her advances to
plaintiff were spurned, she moved on to other prospects at work."
(Memorandum of Law in Opposition to Defendant's Motion to Strike
at 2). As circumstantial evidence in support of his allegations
that Ms. DeRosa sexually harassed him, Mr. Cruz alleges that:
Through former colleagues at Oxford, plaintiff heard
that during the later part of 2002, Ms. DeRosa was
terminated from Oxford Health Plans for "gross sexual
misconduct," which upon information and belief,
constituted engaging in sexual activity with a
medical Director on the premises of Oxford.
(Am. Compl. ¶ 51). As Mr. Cruz was discharged in March of 2000,
the alleged sexual affair occurred after his termination. (Am.
Compl. ¶ 8).
Mr. Cruz also alleges that he was retaliated against as a
result of his complaints regarding Ms. DeRosa's sexual advances,
his complaints regarding unequal and unfair treatment, and his
reports of sexual harassment. (Am. Compl. ¶ 3). He alleges that
Oxford retaliated in part by challenging his unemployment
After such termination [from Oxford], and after
plaintiff's filed charges with the New York State
Division of Human Rights, plaintiff's unemployment
benefits were challenged and terminated by defendant.
Only after a letter was written by plaintiff's
attorney to the Unemployment division outlining
plaintiff's discrimination charges and defendant's
denial of benefits as further retaliation towards him
were such benefits reinstated.
(Am. Compl. ¶¶ 49-50). Discussion
A. Legal Standard
Pursuant to Rule 12(f) of the Federal Rules of Civil Procedure,
the court "upon motion made by a party . . . may order stricken
from any pleading . . . any redundant, immaterial, impertinent,
or scandalous matter." Motions to strike are disfavored, and
should be granted only if the allegations in question have no
bearing on the litigation. See Sunshine Cellular v. Vanguard
Cellular Systems, Inc., 810 F. Supp. 486, 499-500 (S.D.N.Y.
1992); Zinaman v. USTS New York, Inc., 798 F. Supp. 128, 135
B. Application of the Legal Standard to Oxford's Motion
1. Sexual Affair
Mr. Cruz's allegations concerning Ms. DeRosa's alleged sexual
affair with a medical director on the premises of Oxford must be
stricken. Although "other instances of hostility directed at
persons other than the plaintiff may lend some support to a
plaintiff's claims of a hostile work environment, . . . there is
no sexual harassment without a showing of adverse effect on the
terms and conditions of employment." Parrish v. Sollecito, 01
Civ. 5420, 2002 WL 1072227, at *2 (S.D.N.Y. May 24, 2002)
(striking plaintiff's allegation that a manager who harassed her
had a sexual relationship with an employee in another office as
"scandalous, . . . impertinent[,] and of extremely unlikely
relevance"). This case is analogous to Parrish, as Mr. Cruz has
failed to indicate that Ms. DeRosa's alleged relationship
adversely affected his working environment. Since Mr. Cruz did not learn of
the affair until after his employment was terminated, it seems
impossible for it to have had such an effect. Further, as in
Parrish, "nothing suggests that the relationship . . .
constitutes . . . an instance of hostility or harassment against
[the employee involved]." Id. at *2. Also, the relationship
cannot be evidence of a pattern of discriminatory conduct,
because there is no allegation that the affair was anything other
Mr. Cruz cites cases in which the court declined to strike
allegations concerning sexual harassment after the claim of
sexual harassment claim was dismissed. See Eaton v. American
Media Operations, 96 Civ. 6158, 1997 WL 7670, at *5 (S.D.N.Y.
Jan. 9, 1997) (allegations that president of defendant company
sexually harassed plaintiff may be admissible to show general
gender bias and therefore to prove discriminatory intent, even
though sexual harassment claim was dismissed); Crespo v. New
York City Transit Authority, 01-CV-0671, 2002 WL 398805, at *12
(E.D.N.Y. Jan. 7, 2002) (allegations concerning dismissed
harassment and hostile work environment claims not stricken
because they might have bearing on discriminatory intent which
plaintiff must establish for sex and national origin
discrimination claims). These cases are distinguishable from the
present case, however, because they involve actions alleged to
have affected the plaintiffs' workplace environment, unlike Mr.
Cruz's allegations with respect to Ms. DeRosa's alleged affair.
Accordingly, paragraph 51 is stricken from Mr. Cruz's amended complaint.
2. Unemployment Compensation Proceedings
In paragraphs 49 and 50 of his amended complaint, Mr. Cruz
alleges that Oxford retaliated against him by opposing his
application for unemployment benefits. It may be that,
particularly because Mr. Cruz apparently ultimately prevailed on
his unemployment claim, he did not suffer any adverse employment
action. See Fairbrother v. Connecticut Department of Mental
Health and Addiction Services, 306 F. Supp. 2d 154, 165 (D.
Conn. 2003); Barriera v. Bankers Trust, No. 98 Civ. 3641, 2003
WL 22387099, at *7-8 (S.D.N.Y. Oct. 20, 2003) (no adverse
employment action when plaintiff was awarded unemployment
benefits even if defendant opposed plaintiff's unemployment
claim). However, "a motion to strike under Rule 12(f) is the
appropriate remedy for the elimination of redundant, immaterial,
impertinent, or scandalous matter in any pleading," but "it is
neither an authorized nor a proper way to procure the dismissal
of all or part of a complaint." 5A Charles Alan Wright & Arthur
R. Miller, Federal Practice and Procedure § 1380, at 644 (2d
ed. 1990) (footnote omitted). Specifically, "[t]he motion to
strike . . . is not intended for use in determining the
sufficiency of any pleading." Id. at 644 n. 1 (quoting Charles
C. Montgomery, Changes in Federal Practice Resulting from the
Adoption of the New Federal Rules of Civil Procedure,
1 F.R.D. 337, 345 (1940)).
Therefore, the plaintiff's retaliation claim may be challenged
on summary judgment, but it is not subject to being stricken. Conclusion
For the reasons set forth above, Oxford's motion is granted to
the extent that the allegations concerning Ms. DeRosa's
consensual sexual affair are stricken from the amended complaint,
but denied to the extent that the allegations concerning Oxford's
challenge to the plaintiff's unemployment benefits are not