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Nicolosi-Russo v. Program Brokerage Corp.

December 13, 2006

MICHELE NICOLOSI-RUSSO, PLAINTIFF,
v.
PROGRAM BROKERAGE CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Gerard E. Lynch, District Judge.

OPINION AND ORDER

Defendant Program Brokerage Corporation ("Program") moves to dismiss this action, brought by Michele Nicolosi-Russo, a former employee, pursuant to federal, state, and local laws that prohibit employment discrimination. The motion will be denied.

BACKGROUND

Program employed Nicolosi-Russo from some time before the events alleged until approximately February 4, 2005.*fn1 Her immediate supervisor was Cynthia O'Brien. On about January 6, 2005, Nicolosi-Russo complained to a Mr. Savage (apparently a responsible Program executive) that "O'Brien had engaged in hostile environment employment discrimination by making offensive comments, such as repeatedly stating 'fucking Jew brokers' and disparaging comments regarding 'Asian brokers.'" (Compl. ¶ 6.) She further reported that O'Brien had also made "off-color comments regarding the tsunami and the race of its victims." (Id.) Nicolosi-Russo told Savage that she "took these racist comments in a negative fashion" because "her significant other was of African descent." (Id.) Savage offered to speak with O'Brien, outside plaintiff's presence, about these comments. Nicolosi-Russo agreed.

Approximately one week after this discussion with Savage, O'Brien informed Nicolosi-Russo that "this was not going to work out," because O'Brien wished to feel free to "speak the way she did without distraction and without thinking that someone was keeping a file on her." (Id. ¶ 7.) O'Brien challenged plaintiff to decide whether she could continue to work "on [O'Brien's] terms." (Id.) O'Brien's offensive remarks continued, including use of the term "guinea clubs" to describe potential new clients. (Id. ¶ 8.) On February 4, 2005, O'Brien fired Nicolosi-Russo, stating that her termination was "a follow-up to the conversation a month ago," and further asserting that plaintiff "was not meeting expectations." (Id. ¶ 9.)

Nicolosi-Russo filed a charge with the Equal Employment Opportunity Commission, signed on April 5 and received on April 13, 2005, alleging retaliation. (Compl. Ex. 1.) Her statement of facts to the EEOC mirrors, verbatim, the discrimination-related facts alleged in her complaint to this Court. After investigating, the EEOC dismissed the charge, advising that it had been "unable to conclude that the information obtained establishes violations of the statutes," and issued a right-to-sue letter on September 12, 2005. Plaintiff filed this action on November 4, 2005.

Program now moves to dismiss the case, arguing that the allegations of Nicolosi-Russo's complaint and incorporated EEOC charge, even taken as true, do not entitle her to any legal relief. Besides objecting to the sufficiency of the complaint itself, defendant insists that the allegations set forth in an affidavit appended to Nicolosi-Russo's motion papers may not be considered in connection with this motion, because they were not set forth in the complaint and because plaintiff's failure to exhaust her administrative remedies by including them in her EEOC complaint deprives the Court of jurisdiction to address them.

DISCUSSION

I. Legal Standards

A. Motions to Dismiss

A defendant is entitled to dismissal of a complaint only if it can show either that the complaint fails to provide fair notice of the basis of plaintiff's claims, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512-14 (2002), or that "it appears beyond doubt that the plaintiff can prove no set of facts in support of [her] claim[s] which would entitle [her] to relief." Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002) (internal quotation marks omitted).

When deciding a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), the Court must take as true the facts as alleged in plaintiff's complaint. Bolt Elec., Inc. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995). It may consider documents attached to the complaint as exhibits or incorporated in it by reference. Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993); see also Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d Cir. 2002) (determining that documents were properly considered in a motion to dismiss as plaintiff had relied on the documents in drafting the complaint). All reasonable inferences must be drawn in the plaintiff's favor. Freedom Holdings, Inc. v. Spitzer, 357 F.3d 205, 216 (2d Cir. 2004). However, "[g]eneral, conclusory allegations need not be credited . . . when they are belied by more specific allegations of the complaint." Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1092 (2d Cir. 1995); Whyte v. Contemporary Guidance Servs., Inc., No. 03 Civ. 5544 (GBD), 2004 WL 1497560, at *3 (S.D.N.Y. July 2, 2004).

B. Title VII Retaliation

Under Title VII of the Civil Rights Act of 1964 ("Title VII"), it is unlawful "for an employer to discriminate against any of his employees . . . because [the employee] has opposed any practice made an unlawful employment practice by [Title VII]." 42 U.S.C. ยง ...


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