The opinion of the court was delivered by: Siragusa, J.
Now before the Court is defendants' motion (# 5) to dismiss, pursuant to Federal Rule of Civil Procedure 12(b)(6), or in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56, and plaintiff's cross-motion (# 7) to file a second amended complaint, pursuant to Federal Rule of Civil Procedure 15. For the reasons stated below, defendants' application is granted and plaintiff's motion is denied.
The following factual recitation is taken from plaintiff's first amended complaint, filed on July 21, 2006. Plaintiff alleges that she was wrongfully terminated on November 2, 2005, from her employment with Canandaigua National Bank (the "Bank") in retaliation for her participation in a sexual harassment investigation*fn1 conducted by defendant. In a charge filed before the Equal Employment Opportunity Commission ("EEOC"), plaintiff stated that on or about October 13, 2005, she "participated in a sexual harassment investigation." ("EEOC Charge".) In her first amended complaint, she stated that she "cooperated with an internal investigation by defendant of alleged discriminatory practices . . . ." (Am. Compl. ¶ 9.) On March 31, 2006, the EEOC issued a determination that, "[b]ased on its investigation, the EEOC is unable to conclude that the information obtained establishes violations of the statutes." (Am. Compl. Ex. B.)
Defendants filed their motion to dismiss on September 13, 2006, and on November 3, 2006, plaintiff filed her cross-motion the Court seeking to amend her amended complaint. In the proposed second amended complaint, plaintiff alleges for the first time that while she was participating in the internal investigation, she informed the investigator, Mary Ann Ridley ("Ridley"), Vice President of Human Resources for the Bank, that, "her immediate supervisor was creating a hostile work environment on the basis of sex with regards to her comments about pornography, sex life with her husband, waiting at the door for her husband naked, an alleged foursome with another couple, and having and replacing three dildos." (Proposed Second Am. Compl. ¶ 10.) Plaintiff argues that the amendment should be allowed, so that she can go forward on a theory that she was opposing sexual harassment at the time of the investigation.
In considering a motion for dismissal under Rule 12, defendant must show that plaintiff can prove no set of facts in support of her claim that would entitle her to relief. See H.J. Inc. v. Northwest Bell Telephone Co., 492 U.S. 229, 249 (1989); see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[a] (Matthew Bender 3d ed.). "In considering a motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), a district court must limit itself to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference." Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991).The Court must view the complaint, and draw all reasonable inferences, in the light most favorable to the nonmoving party. Id.; see also 2 MOORE'S FEDERAL PRACTICE, § 12.34[b] (Matthew Bender 3d ed.) (court must accept plaintiff's factual allegations as true). Under the modern rules of pleading, a plaintiff need only provide "a short and plain statement of the claim showing that the pleader is entitled to relief," Fed. R. Civ. P. 8(a)(2), and that "all pleadings shall be so construed as to do substantial justice," Fed. R. Civ. P. 8(f). On a Rule 12(b)(6) motion, the issue before the Court "is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claim." Villager Pond, Inc. v. Town of Darien, 56 F.3d 375, 378 (2d Cir. 1995).
Finally, while the plaintiff need not set out in detail the facts upon which he bases a claim, he must provide the "defendant fair notice of the nature of the claim and the grounds upon which it rests." Washington v. James, 782 F.2d 1134, 1140 (2d Cir. 1986) (quoting Conley v. Gibson, 355 U.S. 41, 47, 78 S.Ct. 99, 103, 2 L.Ed. 2d 80 ). Where the allegations are so baldly conclusory that they fail to give notice of the basic events and circumstances of which the plaintiff complains, they are meaningless as a practical matter and legally insufficient to state a claim. Barr v. Abrams, 810 F.2d 358, 363 (2d Cir. 1987)(citing Ostrer v. Aronwald, 567 F.2d 551, 553 [2d Cir. 1977]; Koch v. Yunich, 533 F.2d 80, 85 (2d Cir. 1976); Powell v. Jarvis, 460 F.2d 551, 553 [2d Cir. 1972]).
Parisi v. Coca-Cola Bottling Co., 995 F. Supp. 298, 300--01 (E.D.N.Y. 1998). Motion to Amend The Federal Rules of Civil Procedure provide that leave to file an amended complaint "shall be freely given when justice so requires." Fed. R. Civ. P. 15(a). However, leave to amend may be denied in the face of "undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, [or] futility of amendment . . . ." Foman v. Davis, 371 U.S. 178, 182 (1962); see also United States v. Continental Illinois Nat. Bank And Trust Co., 889 F.2d 1248, 1254 (2d Cir. 1989). Title VII Claim Plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, which states in pertinent part, It shall be an unlawful employment practice for an employer to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, condition, or privileges of employment because of such individual's race, color, religion, sex, or national origin . . . . 42 U.S.C. § 2000e-2(a)(1). As the Second Circuit explained in Donato v. Plainview-Old Bethpage Cent. School Dist., 96 F.3d 623 (2d Cir. 1996), To establish a prima facie case of retaliatory discharge, the plaintiff must show:
"i) [her] participation in a protected activity known to the defendant;
ii) an employment action disadvantaging the plaintiff; and iii) a causal connection between the protected activity and the adverse employment action."
Donato, 96 F.3d at 633-34 (2d Cir. 1996) (quoting Tomka v. Seiler Corp., 66 F.3d ...