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Brown v. Research Foundation of Suny

May 28, 2009


The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge



Plaintiff commenced this action pro se alleging claims pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), the Americans with Disabilities Act ("ADA"), the Age Discrimination in Employment Act ("ADEA"), and 42 U.S.C. § 1983 ("Section 1983"). Defendants have moved to dismiss the claims pursuant to Fed. R. Civ. P. 12(b)(1), 12(b)(6), and 56. See Def. Nicosia's Motion, dkt. # 27; Defs. Research Foundation of SUNY, Sparaco, Overbey, Fish-Graves, and Radiloff's Motion (collectively "The Research Foundation Defendants"), dkt. # 31.*fn2 Plaintiff has opposed the motions. See Pl.'s Opp, dkt. # 36; Pl.'s Sur-Reply, dkt. # 42.


a. F ED. R. C IV. P. 12(b)(1)

A case is to be dismissed for lack of subject matter jurisdiction pursuant to F ED. R. C IV. P. 12(b)(1) when the district court lacks the statutory or constitutional power to adjudicate it. Makarova v. United States, 201 F. 3d 110, 113 (2d Cir. 2000). A plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it exists. See Luckett v. Bure, 290 F.3d 493, 497 (2d Cir. 2002); see also Malik v. Meissner, 82 F.3d 560, 562 (2d Cir. 1996). When a defendant moves to dismiss claims pursuant to Fed. R. Civ. P. 12(b)(1), "the movant is deemed to be challenging the factual basis for the court's subject matter jurisdiction." Cedars-Sinai Medical Ctr. v. Watkins, 11 F.3d 1573, 1583 (Fed. Cir. 1993). For purposes of such a motion, "the allegations in the complaint are not controlling . . . and only uncontroverted factual allegations are accepted as true." Id. Both the movant and the pleader are permitted to use affidavits and other pleading materials to support and oppose the motion to dismiss for lack of subject matter jurisdiction. See Makarova, 201 F.3d at 113; Filetech S.A. v. France Telecom, S.A., 157 F.3d 922, 932 (2d Cir. 1998); John Street Leasehold, LLC v. Capital Mgt. Res., L.P., 2001 WL 310629, at *2 (S.D.N.Y. March 29, 2001). "Thus, the standard used to evaluate a Rule 12(b)(1) motion is similar to that used for summary judgment under Fed. R. Civ. P. 56." Lopresti v. Merson, 2001 WL 1132051, at *5 (S.D.N.Y. Sept. 21, 2001).

b. F ED. R. C IV. P. 12(b)(6)

A motion under F ED. R. C IV. P. 12(b)(6) tests the legal sufficiency of the claims pleaded in the case. The Supreme Court recently elaborated on the standard to be used in addressing a Rule 12(b)(6) motion, and again explained Rule 12(b)(6)'s interrelationship with the federal pleading standard under F ED. R. C IV. P. 8. See Ashcroft v. Iqbal, --- S.Ct. ----, 2009 WL 1361536, at *12 -*13 (May 18, 2009). In this regard, the Court explained:

Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." As the Court held in [Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007]], the pleading standard Rule 8 announces does not require "detailed factual allegations," but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation. Id., at 555, 127 S.Ct. 1955 (citing Papasan v. Allain, 478 U.S. 265, 286, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986)). A pleading that offers "labels and conclusions" or "a formulaic recitation of the elements of a cause of action will not do." 550 U.S., at 555, 127 S .Ct. 1955. Nor does a complaint suffice if it tenders "naked assertion[s]" devoid of "further factual enhancement." Id., at 557, 127 S.Ct. 1955.

To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to "state a claim to relief that is plausible on its face." Id., at 570, 127 S.Ct. 1955. A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged. Id., at 556, 127 S.Ct. 1955. The plausibility standard is not akin to a "probability requirement," but it asks for more than a sheer possibility that a defendant has acted unlawfully. Ibid. Where a complaint pleads facts that are "merely consistent with" a defendant's liability, it "stops short of the line between possibility and plausibility of 'entitlement to relief.'" Id., at 557, 127 S.Ct. 1955 (brackets omitted).

Two working principles underlie our decision in Twombly. First, the tenet that a court must accept as true all of the allegations contained in a complaint is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice. Id., at 555, 127 S.Ct. 1955 (Although for the purposes of a motion to dismiss we must take all of the factual allegations in the complaint as true, we "are not bound to accept as true a legal conclusion couched as a factual allegation" (internal quotation marks omitted)). Rule 8 marks a notable and generous departure from the hyper-technical, code-pleading regime of a prior era, but it does not unlock the doors of discovery for a plaintiff armed with nothing more than conclusions. Second, only a complaint that states a plausible claim for relief survives a motion to dismiss. Id., at 556, 127 S .Ct. 1955. Determining whether a complaint states a plausible claim for relief will [] be a context-specific task that requires the reviewing court to draw on its judicial experience and common sense. But where the well-pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the complaint has alleged - but it has not "show[n]" - "that the pleader is entitled to relief." Fed. Rule Civ. Proc. 8(a)(2).

In keeping with these principles a court considering a motion to dismiss can choose to begin by identifying pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth. While legal conclusions can provide the framework of a complaint, they must be supported by factual allegations. When there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.

Iqbal, 2009 WL 1361536, at *12 -*13.

In deciding a Rule 12(b)(6) motion, review "is generally limited to the facts and allegations that are contained in the [challenged pleading] and in any documents that are either incorporated into the [pleading] by reference or attached to the [pleading] as exhibits." Blue Tree Hotels Inv., Ltd. v. Starwood Hotels & Resorts Worldwide, Inc., 369 F.3d 212, 217 (2d Cir. 2004) (citations omitted). Dismissal is appropriate where the pleading fails as a matter of law. Phelps v. Kapnolas, 308 F.3d 180, 187 (2d Cir. 2002).

c. F ED. R. C IV. P. 56(c)

A court may grant summary judgment pursuant to F ED. R. C IV. P. 56(c) only where "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." F ED. R. C IV. P. 56(c). An issue is genuine if the relevant evidence is such that a reasonable jury could return a verdict for the nonmoving party.

Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986). A party seeking summary judgment bears the burden of informing the court of the basis for the motion and of identifying those portions of the record that the moving party believes demonstrate the absence of a genuine issue of material fact as to a dispositive issue. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986).

If the movant is able to establish a prima facie basis for summary judgment, the burden of production shifts to the party opposing summary judgment who must produce evidence establishing the existence of a factual dispute that a reasonable jury could resolve in his favor. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The nonmoving party must show, by affidavits or other evidence, admissible in form, that there are specific factual issues that can only be resolved at trial. Colon v. Coughlin, 58 F.3d 865, 872 (2d Cir. 1995).

In determining whether to grant summary judgment, the Court must resolve all ambiguities and draw all reasonable inferences from the submitted materials in a light most favorable to the non-moving party. Patterson v. County of Oneida, N.Y., 375 F.3d 206, 219 (2d Cir. 2004). However, the nonmoving party cannot defeat summary judgment by "simply show[ing] that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586, or by a factual argument based on "conjecture or surmise." Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir. 1991). In this regard, a party opposing a properly supported motion for summary judgment may not rest upon "mere allegations or denials" asserted in the pleadings, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994), or on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998); see also Govan v. Campbell, 289 F. Supp.2d 289, 295 (N.D.N.Y. 2003).*fn3


Plaintiff commenced this action pro se against her former employer, The Research Foundation of SUNY ("Research Foundation"), and former co-workers John Sparaco ("Sparaco"); Edmond Overbey ("Overbey"); Bridget Fish-Graves ("Fish-Graves"); Bertha Radiloff ("Radiloff"), and Melissa Necosia ("Necosia"). See Complaint [dkt. # 1]. The following facts are taken from the Complaint, are not in dispute, or are construed in the light most favorable to Plaintiff.

a. Plaintiff's Employment

The Research Foundation is a private, non-profit educational corporation whose primary responsibility is to administer grants and sponsored programs on behalf of the State University of New York. One of the programs administered by the Foundation is the High School Equivalency Program ("HEP") at the State University of New York at Oneonta ("SUNY Oneonta"), a residential GED program serving migrant and seasonal farm workers and their dependents. The Foundation employed plaintiff as a teacher's assistant in the HEP program from August 2000 until July 17, 2006.

In 2005, Plaintiff complained of "sexual discrimination" when Defendant Sparaco, the Director of HEP, purportedly exposed her to "sexual explicit [ sic ] exploitation of the female vagina on his computer." Compl. ¶5a. Also in 2005, Sparaco used profanity in Plaintiff's presence, ridiculed and intimidated her, "taunted [her] un-relentlessly," caused her to suffer in "a hostile and insecure environment" leading to "stress/anxiety/depression."

Id., at ¶¶ 5c-5d. Sometime in 2005 Plaintiff went out on disability leave and, when she returned to work in January 2006, Sparaco refused to sign Plaintiff's time sheets, moved her desk to the back of the classroom behind a filing cabinet, failed to inform Plaintiff of staff meetings, and "changed [Plaintiff's] job description." Id., at ¶¶ 5e-5f. In July 2007, Sparaco "discriminated/retaliated by terminating [Plaintiff on] July 17, 2006 for not speaking Spanish when the Federal Grant does not require the teacher's assistant to be bilingual." Id. ¶ 5. Brown further alleges that, after she was terminated, Sparaco ...

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