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Kearney v. ABN AMRO Inc

August 10, 2006

BARBARA KEARNEY, PLAINTIFF,
v.
ABN AMRO INC., DEFENDANT.



The opinion of the court was delivered by: Deborah A. Batts, United States District Judge.

MEMORANDUM & ORDER

Plaintiff Barbara Kearney ("Kearney") brings this action pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000(e), et seq. ("Title VII"); the Equal Pay Act, 29 U.S.C. § 206(d)(1) ("EPA")*fn1 ; the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-624 ("ADEA")*fn2 ; the New York State Human Rights Law § 290, et seq. ("NYSHRL"); and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-107, et seq. ("NYCHRL"). Defendant ABN AMRO Inc. ("ABN") moves to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6).

For the reasons set forth below, Defendant's Motion to Dismiss is GRANTED in part and DENIED in part.

I. BACKGROUND

For purposes of this motion, the facts set forth in the Complaint are accepted as true. Plaintiff's employment with ABN commenced in October, 1990 and continued for over ten years, until her discharge on April 26, 2001. (Compl. ¶ 11.) From 1996 to 2000, Plaintiff held the title of vice president of Equity Capital Markets. (Id. ¶ 12.) In March 2000, she was promoted to senior vice president. (Id. ¶ 14.)

Plaintiff claims that she was treated differently from similarly situated male employees at ABN. Specifically, she asserts that ABN continuously paid her less, with respect to base salary and bonus payments, than male ABN employees with "substantially similar or lesser tenure and responsibilities." (Id. at 4-5.) Plaintiff illustrates the alleged pay disparity by comparing her earned base salary and bonus payments, from 1997 to 2000, to the yearly compensation received by similarly positioned male ABN employees. (Id.)

On several different occasions in 2000, Plaintiff met with her supervisor, Charles van Schelle ("van Schelle"), a managing director of ABN, to discuss her unequal pay. (Id. ¶ 20.) During those meetings van Schelle acknowledged the pay disparity but asked Plaintiff to be patient, promising that ABN would "make up the difference in due course." (Id.) In January 2001, Plaintiff claims that despite a favorable review she did not receive a salary increase and received a disparate bonus as compared with similarly positioned male employees. (Id. ¶ 22.) Shortly thereafter, in February 2001 Plaintiff met with her new supervisor, Henry Erbe ("Erbe"), a managing director of ABN, to discuss her disparate pay. (Id. at 5.) During this meeting with Erbe, Plaintiff was informed that she would not receive a salary increase, and that only the "young ones" would receive an increase. (Id.)

Sometime before April 2001, Defendant informed Plaintiff that it was necessary to terminate two employees in Plaintiff's department as a result of Defendant's merger with another company. (Id. ¶ 27.) Plaintiff was asked by ABN management to provide suggestions as to which employees should be terminated. (Id. ¶ 28.) During a meeting, which included Plaintiff, Erbe, and another ABN employee, it was decided that Tia Bryant, an administrative assistant, and Douglass Ridgeway, a production manager, would be terminated from their employment at ABN. (Id.) Although Defendant assured Plaintiff that her employment was safe from the merger-related workforce reductions, she was discharged upon return from her vacation on April 26, 2001. (Id. ¶¶ 27, 29.) Plaintiff later learned that she was terminated in lieu of Ridgeway, who was originally slated for termination, and that she was replaced by two younger, less experienced male employees. (Id. ¶¶ 29-30.) Plaintiff asserts that her employment was terminated in retaliation for her repeated requests for equal pay. (Id. ¶ 26.)

On October 25, 2001, Plaintiff filed a charge with the United States Equal Employment Opportunity Commission ("EEOC") alleging gender and age discrimination. (Id. ¶ 24; Colbath Decl. Ex. 2.) On November 8, 2001, Plaintiff filed an amended complaint with the EEOC adding a claim under the Equal Pay Act. (Compl. Ex. A; Colbath Decl. Ex. 1 at Ex. A.) Plaintiff checked the boxes for sex and age, indicating those bases as her "cause of discrimination." (Id.) In her "Memorandum Accompanying Charge of Sex and Age Discrimination," Plaintiff alleges that Defendant has violated Title VII of the Civil Rights Act of 1964, the Equal Pay Act and the Age Discrimination in Employment Act of 1967 by paying her less than men of equal and lesser employment status and tenure and by terminating Plaintiff "in retaliation for her persistent efforts to receive equal pay." (Compl., Ex. A at 1-5.) On June 4, 2004, the EEOC dismissed Plaintiff's charge and issued Plaintiff a Notice of Right to Sue. (Compl. ¶¶ 6-7.)

Plaintiff then timely filed the instant Complaint. Defendant moves to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(1) and 12(b)(6) on the grounds that Plaintiff's claims are barred by the applicable statute of limitations, that Plaintiff failed to comply with applicable pleading requirements, and that Plaintiff otherwise fails to state a claim upon which relief can be granted.

II. DISCUSSION

In considering a 12(b)(1) motion to dismiss for lack of subject matter jurisdiction, a court must assume as true all well pleaded factual allegations in the complaint and draw all reasonable inferences in favor of the plaintiff. Raila v. United States, 355 F.3d 118, 119 (2d Cir. 2004); Sweet v. Sheahan, 235 F.3d 80, 83 (2d Cir. 2000). The Court should consider a 12(b)(1) motion before ruling on any other motions to dismiss, because dismissal of an action for lack of subject matter jurisdiction will render all other defenses and motions moot. See United States ex rel. Kreindler & Kreindler v. United Technologies Corp., 985 F.2d 1148, 1155-56 (2d Cir. 1993); Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990). Thus, a court confronted with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) must decide the "jurisdictional question first because a disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an exercise of jurisdiction." Magee v. Nassau County Med. Ctr., 27 F.Supp.2d 154, 158 (E.D.N.Y. 1998).

A. Rule 12(b)(1)

1. Title VII: Discriminatory ...


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