The opinion of the court was delivered by: John T. Elfvin S.U.S.D.J.
On February 17, 2006, plaintiff Cally E. Miklasz ("Miklasz"), proceeding pro se, filed the instant complaint against her former employer Erie County Soil and Water Conservation District ("ECSWCD") alleging that she had been discriminated against on account of the opposition she voiced to sexual harassment of others at ECSWCD in violation of Title VII, 42 U.S.C. §2000e et seq., and on account of her disability in violation of the Americans with Disabilities Act, 42 U.S.C. §12112 et seq., together the "federal claims." Miklasz alleges that ECSWCD harassed her, failed to promote her, failed to provide her with reasonable accommodations of her disability, retaliated against her and, ultimately, terminated her employment.
On April 24, 2006, in lieu of an Answer, ECSWCD filed the instant Motion to Dismiss the Complaint arguing that ECSWCD did not employ more than 15 employees at the time of the relevant events and therefore did not meet the definition of "employer" contained in Title VII and the ADA. The Court issued a briefing schedule and scheduled oral argument on the Motion. Rather than responding to ECSWCD's Motion, on June 2, 2006 Miklasz filed a Motion for Appointment of Counsel.*fn2 ECSWCD opposed Miklasz's Motion, arguing that such appointment is unnecessary in light of the fatal defects in Miklasz's Title VII and ADA claims and because - even if Miklasz had alleged a corresponding violation of New York State law - such claim is barred because Miklasz elected to pursue her administrative remedies with respect to that claim.
When considering a motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP"), the Court "must accept the material facts alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Phelps v. Kapnolas, 308 F.3d 180 (2d Cir. 2002). With certain limited exceptions, the record on a motion to dismiss is limited to the complaint itself. See Faulkner v. Beer, 463 F.3d 130, 134 (2d Cir. 2006).*fn3
The motion should not be granted "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." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). Accordingly, the Court is not concerned with whether plaintiff may ultimately succeed on her claims but must "assess the legal feasibility of the complaint." Cooper v. Parsky, 140 F.3d 433, 440 (2d Cir. 1998).
ECSWCD argues that, even assuming Miklasz's version of the facts is true, the Title VII and ADA claims against it must be dismissed because it does not satisfy the definition of "employer." Both Title VII and the ADA define an employer in pertinent part as follows:
"The term 'employer' means 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 %%% ."
42 U.S.C. §2000e(b) and 42 U.S.C. §12111(5)(A). In her complaint, Miklasz asserts that ECSWCD had 10 employees during her employment there. Thus, Miklasz cannot allege any set of facts that would entitle her to relief under these statutes.
Miklasz does not oppose ECSWCD's argument with respect to the federal claims. Rather, she contends that under New York State law discrimination is actionable against an employer with 4 or more employees and thus the Court should appoint an attorney for her so that she may pursue her state law claims.*fn4 As ECSWCD correctly notes, however, Miklasz filed administrative complaints concerning the relevant events with the New York State Division of Human Rights ("DHR"). The DHR investigated her complaints and concluded that there was no probable cause to believe that a violation of law had occurred.
Section 297(9) of the New York State Executive Law states that a person shall have a cause of action in any court of competent jurisdiction to allege discrimination under the statute, unless such person files an administrative complaint concerning the same subject matter. With one exception for such complaints dismissed for "administrative convenience" by the administrative agency, the filing of such a complaint bars a judicial complaint based on the same subject matter. Because Miklasz filed those complaints with the DHR, her potential state law cause of action is now barred.
Accordingly, it is hereby ORDERED that ECSWCD's Motion to Dismiss is granted and Miklasz's Motion for Appointment of Counsel is denied. The Clerk of the Court is directed ...