The opinion of the court was delivered by: Conner, Senior D.J.
Plaintiff Eleanora M. Patane brings this action claiming discriminatory treatment based on gender and retaliation in violation of (1) Title VII, 42 U.S.C. 2000e, et seq.; (2) the New York Human Rights Law ("NYHRL"), New York Executive Law § 296; and (3) the New York City Human Rights Law ("NYCHRL"), New York City Administrative Code § 8-101, et seq. against defendants John Richard Clark, Harry B. Evans, David Stuhr, Georgina Arendacs (the "individual defendants") and Fordham University ("Fordham") (collectively "defendants"). Defendants' move to dismiss pursuant to FED. R. CIV. P. 12(b)(1) and (6) and, in the alternative, move to strike certain allegations from the Complaint pursuant to FED. R. CIV. P. 12(f). For the reasons stated herein, defendants' motion to dismiss is granted, and their motion to strike is therefore denied as moot.
Plaintiff is the Executive Secretary in the Classics Department (the "Department") at Fordham. (Complt. ¶ 9.) Clark was the chair of the Department in 1998, when plaintiff was hired.*fn1 (Id.) Plaintiff alleges that in 1998 Clark "on many occasions" brought his nine or ten- year-old daughter to the Department offices where "she would sit straddling one of his legs and rubbing her groin back and forth in front of staff." (Id. ¶ 10.) The following academic year, 1999-2000, Sarah Pierce took over as Department chair. (Id. ¶ 12.) Plaintiff alleges that at this time Clark brought a TV-VCR into his office and began watching "hard core" pornographic materials for one to two hours each day. (Id.) Plaintiff asserts that during this time she "observed Clark approximately every twenty minutes rush past her-with his face flushed-on the way to the men's room for the apparent purpose of masturbating." (Id.) In addition, as Department secretary, plaintiff received and handled Clark's mail, which often contained sadomasochist videotapes. (Id. ¶ 13.) Plaintiff also claims that she found "hard core" websites on her computer, which she attributes to Clark. (Id. ¶14.) However, those sites were removed and plaintiff's computer was given password protection. (Id.)
Plaintiff alleges that she complained to Arendacs, the Director of Equity and Equal Opportunity Department at Fordham's Bronx Campus ("Fordham EEO"), about Clark's conduct in 1999-2000. (Id. ¶ 13.) Arendacs allegedly took no remedial action to address this problem, although she did report it to Stuhr, the Vice President of Academic Affairs. (Id.) It is unclear what Stuhr did in response.
In 2001, Clark was reappointed Department chair. Plaintiff alleges that in response to her complaints to Arendacs, Clark removed many of her secretarial functions and refused to communicate with her except through e-mail. (Id. ¶ 15.) Plaintiff claims that she overheard Evans, another Department professor, secretly advising Clark, "[D]on't give her any more work, this will make her leave." (Id.) From 2001 to 2003 Clark apparently continued to watch pornographic materials in his office unabated. (Id. ¶ 16.) During the winter of 2003, Clark allegedly brought his daughter into the office and, on one occasion, plaintiff observed her put her hand in Clark's front pocket, "apparently groping him." (Id. ¶ 17.) However, during this time plaintiff made no further complaints.
In January 2004, plaintiff again reported Clark's behavior to Arendacs and complained about her reduced job responsibilities, showing Arendacs thirty-six pornographic videotapes found in Clark's office. (Id. ¶ 18.) In the apparent absence of any action by Arendacs, plaintiff complained directly to Stuhr in March 2004, also showing him the videotapes. (Id. ¶ 19.) In May 2004 Stuhr promised to take remedial action. (Id.) Plaintiff complains that during this time she informed Arendacs that she wanted to file a formal sexual harassment complaint but that Arendacs never provided her with the proper paper work. (Id. ¶ 20.) During this time, plaintiff alleges that Clark continued to watch pornographic materials in his office. (Id. ¶ 21.)
On August 27, 2004, plaintiff filed a grievance with her union representative. (Rosenthal Decl., Ex. B.) On September 13, 2004, plaintiff wrote a letter to Arendacs expressing her desire to file a formal complaint with the Fordham EEO. (Id., Ex. C.) On Septemeber 28, 2004, however, Arendacs sent a letter to plaintiff addressing her complaints and stating that, as Director of the Fordham EEO, she would not pursue the charges further because plaintiff allegedly indicated that she "did not wish to pursue the issues raised in [the] August 27th letter." (Id.) On October 4, 2004, plaintiff claims that she informed Arendacs that she still wished to pursue a complaint, and on November 9, 2004 plaintiff filed a charge of discrimination with the United States Equal Employment Opportunity Commission ("EEOC") alleging discrimination on the basis of gender and retaliation against Fordham, Clark, Arendacs and Stuhr. (Complt. ¶¶ 23, 24; Rosenthal Decl., Ex. F.)
At the beginning of the Fall 2004 semester, Evans was appointed as Department chair. (Complt. ¶ 25.) Plaintiff alleges that as a result of her complaints against Clark, Evans monitored her telephone calls and whereabouts, encouraged her to falsify time sheets and issued a negative performance review on her. (Id. ¶¶ 25-27.) The performance review gives plaintiff the highest marks in all categories, but bears additional comments noting that her attitude could be less hostile to certain employees. (Rosenthal Decl., Ex. E.) The review praises plaintiff's work ethic, efficiency and organization. (Id.)
On September 9, 2005, the EEOC issued a Notice of the Right to Sue, and plaintiff filed her Complaint on December 6, 2005. Defendants move for dismissal of plaintiff's claims for various procedural and substantive reasons including: (1) statute of limitations; (2) no individual liability under Title VII; (3) no personal liability under the NYHRL or the NYCHRL; and (4) lack of subject matter jurisdiction over claims against Evans for plaintiff's failure to properly exhaust her administrative remedies under Title VII. In the alternative, defendants' move to strike certain statements made in the Complaint pursuant to FED. R. CIV. P. 12(f).
I. Motion to Dismiss Standard
On a motion to dismiss, the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974), overruled on other grounds, Davis v. Scherer, 468 U.S. 183 (1984). A complaint should not be dismissed for failure to state a claim "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." Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10 (1980)). Generally, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to prevent a motion to dismiss."
2 JAMES WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 12.34[b] (3d ed. 1997); see also Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1088 (2d Cir. 1995). Allegations that are so conclusory that they fail to give notice of the basic events and circumstances on which plaintiff relies are insufficient as a matter of law. ...