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Dottolo v. Byrne Dairy

June 22, 2010

CHRISTOPHER M. DOTTOLO, PLAINTIFF,
v.
BYRNE DAIRY, INC.; NICK MARSELLA, INDIVIDUALLY AND IN HIS CAPACITY AS V.P. OF OPERATIONS; KEVIN J. SUTTON, INDIVIDUALLY AND IN HIS CAPACITY AS WAREHOUSE MANAGER; AND BRANDON COOK, INDIVIDUALLY AND IN HIS CAPACITY AS SUPERVISOR, DEFENDANTS.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM DECISION and ORDER

Currently before the Court in this employment discrimination action filed by Christopher M. Dottolo ("Plaintiff") is a motion to dismiss for failure to state a claim pursuant to Fed. R. Civ. P. 12(b)(6) filed by Byrne Dairy, Inc., and three of its employees, Nick Marsella, Kevin J. Sutton, and Brandon Cook ("Defendants"). (Dkt. No. 13.) For the reasons set forth below, Defendants' motion is granted and Plaintiff's Complaint is conditionally dismissed unless, within thirty (30) days of the filing date of this Decision and Order, Plaintiff files an Amended Complaint that states a claim upon which relief can be granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Claims

Liberally construed, Plaintiff's Complaint asserts the following four claims against Defendants: (1) a claim for sexual discrimination and hostile work environment under Title VII of the Civil Rights Act of 1964 ("Title VII"); (2) claim for retaliation and wrongful termination under Title VII; (3) a claim for sexual discrimination under Section 296 of New York's Human Rights Law ("NYHRL"); and (4) a claim for disability-based discrimination and/or harassment under Title I of the Americans with Disabilities Act ("ADA"). (Dkt. No. 1, ¶¶ 29-62.)

Generally, in support of these claims, Plaintiff alleges that, despite his satisfactory work performance at Byrne Dairy between June 2000 and June 2006, Defendants took the following actions against him: (1) on April 12, 2006, Defendant Cook subjected Plaintiff to embarrassment, ridicule, humiliation and insults by making a sexually derogatory comment to him;*fn1 (2) after Plaintiff reported the incident to Plant Manager Dave Laden at some point in time, Defendant Cook conspired with the three referenced co-workers to conceal the incident; (3) after Plaintiff then reported the incident (as well as certain unrelated illegal activity by Defendant Cook in the workplace) to Defendant Marsella on April 28, 2006, Defendant Marsella instructed Defendant Sutton to investigate the incident;*fn2 (4) on May 1, 2006, Defendant Sutton called Plaintiff and asked him why he had never before reported the above-referenced illegal activity by Defendant Cook; (5) on or about May 2, 2006, Plaintiff met with Defendant Sutton and Mark Nolan, at which time Defendant Sutton terminated Plaintiff's employment for purportedly "falsely accusing a supervisor of a gross misconduct statement"; (6) at some point thereafter, Defendant Byrne Dairy opposed Plaintiff's claim for unemployment benefits with the New York State Department of Labor, through submitting a signed statement from Defendant Sutton, which misrepresented Plaintiff's account of Defendant Cook's statement of April 12, 2006. (Id. at ¶¶ 15-28.) In addition, Plaintiff alleges that, despite the fact that he was in "good mental and physical health" when he started his employment at Byrne Diary in June 2000, Byrne Diary wrongfully coerced him into agreeing to its policy of requiring all new employees to consent to a medical examination upon demand, and "repeatedly subjected [him] to this illegal condition of employment throughout the entire term of his employment . . . ." (Id. at ¶¶ 19, 57-62.)

Familiarity with the remaining factual allegations supporting the four claims asserted in Plaintiff's Complaint is assumed in this Decision and Order, which is intended primarily for review by the parties. (See generally Dkt. No. 1.)

B. Defendants' Motion to Dismiss

Generally, in support of their motion to dismiss for failure to state a claim under Fed. R. Civ. P. 12(b)(6), Defendants essentially assert the following five arguments: (1) Plaintiff's claims of sexual harassment and hostile work environment under Title VII must be dismissed because the single alleged statement attributed to Defendant Cook is legally insufficient to give rise to a claim for sexual harassment and hostile work environment under Title VII; (2) Plaintiff's claim of retaliation and wrongful termination under Title VII must be dismissed because he did not have a reasonable belief that the alleged statement of Defendant Cook violated Title VII, and thus his internal complaint regarding that statement was not protected activity; (3) Plaintiff's Title VII, ADA and NYHRL claims against the individual Defendants must be dismissed because those claims cannot be brought against individual defendants; and (4) Plaintiff's ADA claim must be dismissed because (a) he lacks standing to assert such a claim based on the facts alleged, and (b) he failed to exhaust his administrative remedies with the Equal Employment Opportunity Commission ("EEOC") before filing that claim in this Court. (See generally Dkt. No. 13, Attach. 4 [Defs.' Memo. of Law].)

C. Plaintiff's Response

In Plaintiff's response to Defendants' motion to dismiss, he argues as follows: (1) the single statement made by Defendant Cook is legally sufficient to sustain a sexual harassment claim, because it was sufficiently severe to so alter the terms and conditions of employment as to create a hostile work environment; (2) Plaintiff has alleged facts plausibly suggesting that he was retaliated against for making a formal complaint of sexual harassment, because he had a good-faith belief that the alleged statement of Defendant Cook was unlawful (in part because it violated one of Defendants' internal policies), and the EEOC rendered a determination favorable to Plaintiff on his retaliation claim; and (3) while district courts in the Second Circuit are split on the issue of whether a Title VII claim may be brought against an individual, the better-reasoned cases hold that supervisory employees can be individually liable because they are within the reach of Title VII's term "agent," which refers to an employee possessing decision-making authority. (See generally Dkt. No. 14 [Plf.'s Response Memo. of Law].)

D. Defendants' Reply

In their reply, Defendants argues as follows: (1) to the extent that Plaintiff's legal arguments are supported by factual statements in the affidavit of Plaintiff's counsel that are not averments based on his personal knowledge, and/or the hearsay exhibits to that affidavit, those legal arguments should be rejected, under Local Rule 7.1(a)(2) of the Local Rules of Practice for this Court, and/or governing case law; (2) the case cited by Plaintiff as supporting his argument that the single statement made by Defendant Cook was sufficiently severe to create a hostile work environment is factually distinguishable from the current case, and indeed supports a finding that the single statement made by Defendant Cook was not sufficiently severe to create hostile work environment; (3) contrary to Plaintiff's argument that protected activity exists where a complaint is made with a good-faith belief that the subject of the complaint constitutes merely a violation of a company's internal policy (rather than constituting a violation of Title VII), in fact such a complaint does not constitute protected activity; and (4) the reasonable-cause determination rendered by the EEOC regarding Plaintiff's retaliation claim is not determinative of the legal issues presented by Defendants' motion to dismiss, regarding Plaintiff's retaliation claim. (See generally Dkt. No. 16 [Defs.' Reply Memo. of Law].)

II. RELEVANT LEGAL STANDARDS

A. Legal Standard Governing Motions to Dismiss for Failure to State a Claim

"A motion to dismiss on the basis that an action is barred by the statute of limitations is analyzed under Federal Rule of Civil Procedure 12(b)(6), not 12(b)(1)." Garner v. DII Indus., LLC, 08-CV-6191, 2010 WL 456801, at *1 (W.D.N.Y. Feb. 4, 2010) (citing Ghartey v. St John's Queens Hosp., 869 F.2d 160, 162 [2d Cir. 1989]).

It has long been understood that a defendant may base a motion to dismiss for failure to state a claim on either or both of two grounds: (1) a challenge to the "sufficiency of the pleading" under Fed. R. Civ. P. 8(a)(2); or (2) a challenge to the legal cognizability of the claim. Jackson v. Onondaga County, 549 F. Supp.2d 204, 211, nn. 15-16 (N.D.N.Y. ...


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