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Foster v. Humane Society of Rochester

July 21, 2010


The opinion of the court was delivered by: David G. Larimer United States District Judge


Plaintiff, Bette J. Foster, brings this action against her former employer, the Humane Society of Rochester and Monroe County, Inc. ("Humane Society"), alleging that her employment was unlawfully terminated on account of her age and sex, and in retaliation for her having complained about unlawful employment practices. The Humane Society has moved to dismiss the complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Plaintiff has cross-moved for leave to amend and correct the complaint.


The complaint alleges the following facts, which for purposes of deciding defendant's motion to dismiss are assumed to be true.

The Humane Society is a not-for-profit corporation with its principal place of business in Monroe County, New York. Plaintiff, who was born in 1963, began working for the Humane Society in September 2008, as Manager of Resource Development. Her immediate supervisor was Catherine Wright, the Humane Society's Director of Development. Part of plaintiff's job involved soliciting donations, and fostering a relationship with donors, for Lollypop Farm, a center run by the Humane Society that provides pet adoption and other animal-related services.

According to the complaint, at some point during her employment, plaintiff became aware that the Humane Society's president, Alice Calabrese Smith (referred to in plaintiff's papers as "President Alice"), who was married, was having an affair with one of defendant's largest donors ("donor"), who was also married. Plaintiff alleges that she "was burdened with the responsibility to keep President Alice's relationship [with the donor] in hiding." Complaint ¶ 14. It is not clear from the complaint whether Smith expressly directed plaintiff to keep that relationship a secret or whether plaintiff simply assumed that this was expected of her, but she alleges that she "did not tell her peers or her supervisor," or anyone else about the nature of Smith's relationship with the donor. Id.

Plaintiff alleges that the donor "was in constant contact with Plaintiff," and that he continually meddled in matters for which plaintiff was responsible, offering unsolicited opinions about how various events should be run and how plaintiff should perform her job. Id. ¶ 16. If plaintiff disagreed with the donor's suggestions, or tried to limit his involvement, Smith would override plaintiff and let the donor have his way. Id. ¶ 21.

Plaintiff also had some difficulties with the Humane Society's events coordinator, Debra Calandrillo, who reported directly to plaintiff. Plaintiff alleges that Calandrillo "took issue with Plaintiff," and that she "ha[d] numerous issues even prior to Plaintiff's arrival." Id. ¶ 26. It is not clear from the complaint what sort of "issues" Calandrillo is alleged to have had, but plaintiff alleges that although she "complained to her supervisor [presumably meaning Wright] numerous times concerning Coordinator Calandrillo's behavior, however, no remedial action was taken." Id. ¶ 27.

Plaintiff alleges that at some point, Calandrillo told plaintiff that Calandrillo was "going to threaten [the donor] that if he did not give her the funding and resources for a certain fund raising event that she would tell his wife about his relationship with President Alice." Id. ¶ 29. On May 8, 2009, plaintiff informed Smith about what Calandrillo had told her.

On May 11, 2009, plaintiff told Wright that she was "still having numerous issues with Coordinator Calandrillo." Id. Wright suggested that the two of them meet with Linda Baird, who is identified in the complaint as "the VP at the Democrat & Chronicle" newspaper, who "is renown [sic] in the community for superior management." Id. ¶ 32. At a May 13, 2009 meeting attended by plaintiff, Wright and Baird, Baird allegedly suggested that Calandrillo "be put under performance review and be given conditions of employment, which, to Plaintiff's knowledge, never happened." Id. ¶ 34.

At that same meeting, Wright allegedly told plaintiff that President Smith "was concerned about plaintiff's performance." Id. Plaintiff states that she "was given a plan of action, which was later outlined in an Interoffice Memorandum" by Wright. Id. ¶ 35. That memorandum, dated May 20, 2009, set forth certain goals for plaintiff, such as raising certain amounts of money in donations and cultivating new donors. Dkt. #2 Ex. A.*fn1

On May 29, 2009, plaintiff told Wright what she knew about the relationship between Smith and the donor, and told her how their relationship was adversely affecting her ability to perform her job. Plaintiff expressed concern that Smith might fire her "because of the situation." Id. ¶¶ 36-38.

On May 30, plaintiff sent an email to Wright in which she stated, inter alia, that "it is beginning to feel like a hostile work environment." Dkt. #2 Ex. A. She stated that there were "three issues that make it a hostile environment ... ." The first two of those involved plaintiff's ongoing problems with Calandrillo. The third related to Smith's relationship with the donor. Plaintiff complained to Wright that "if Alice is having 'relationships' with these donors, they don't listen to me -- they go directly to Alice." She added that this "directly impact[ed her] daily work and [her] schedule" and that "[d]ecisions are made that are not in the best interest of the organization -- specifically where money is spent and how employees are managed." Id.

On June 3, 2009, plaintiff was called into Wright's office and "told that her services were no longer needed." Id. ¶ 40. The complaint does not state whether plaintiff was given a reason for that decision.

Plaintiff filed an EEOC charge on August 10, 2009, alleging age and sex discrimination, and unlawful retaliation. Ten days later, the EEOC dismissed the charge, with a one-line explanation: "No Prima Facie Case, self defeating." Dkt. #2 Ex.B.

Plaintiff filed the complaint in this action on November 10, 2009. The complaint asserts eight causes of action: (1) age discrimination in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; (2) retaliation for complaining about age discrimination, in violation of the ADEA; (3) age discrimination in violation of the New York Human Rights Law ("HRL"), N .Y. Exec. L. § 296 et seq.; (4) retaliation for complaining about age discrimination, in violation of the HRL; (5) sex discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; (6) sex discrimination in violation of the HRL; (7) retaliation for complaining about sex discrimination, in violation of Title VII; and (8) retaliation for complaining about sex discrimination, in violation of the HRL. She seeks compensatory and punitive damages in an undetermined amount.

In her cross-motion to amend the complaint, plaintiff states that she is withdrawing her second and fourth causes of action, i.e., the retaliation claims relating to age discrimination. The Court dismissed those claims at oral argument on the motion on July 7, 2010. Thus, plaintiff's only retaliation claims are based on her allegation that she was retaliated against for complaining about sex discrimination.


I. Motions to Dismiss under Rule 12(b)(6)

In deciding whether to grant a motion to dismiss for failure to state a claim, the court must accept the factual allegations contained in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. Kuck v. Danaher, 600 F.3d 159, 166 (2d Cir. 2010). At the same time, however, "a plaintiff's obligation ... requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative level." Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007); accord Ashcroft v. Iqbal, ___U.S. ___, 129 S.Ct. 1937, 1949 (2009).

Thus, where a plaintiff "ha[s] not nudged [his] claims across the line from conceivable to plausible, [his] complaint must be dismissed." Twombly, 550 U.S. at 570. A "plausible" entitlement to relief exists when the allegations in the complaint move the plaintiff's claims across the line separating the "conclusory" from the "factual," and the "factually neutral" from the "factually suggestive." Id. at 557 n. 5. See also Iqbal, 129 S.Ct. at 1950 ("only a complaint that states a plausible claim for relief survives a motion to dismiss"); accord Ruston v. Town Bd. for Town of Skaneateles, ___ F.3d ___, 2010 WL 2680644, at *2 (2d Cir. 2010).

Taken together, Twombly and Iqbal represent a significant shift with respect to the standards applicable to Rule 12(b)(6) motions. Prior to Twombly, federal courts would not dismiss a complaint for failure to state a claim "unless it appear[ed] beyond doubt that the plaintiff c[ould] prove no set of facts in support of h[er] claim which would entitle h[er] to relief." See, e.g., Official Committee of Unsecured Creditors of Color Tile, Inc. v. Coopers & Lybrand, LLP, 322 F.3d 147, 158 (2d Cir. 2003)). That was the standard applied by the Second Circuit in its decision in Twombly, which was reversed by the Supreme Court. See Twombly v. Bell Atlantic Corp., 425 F.3d 99, 106 (2d Cir. 2005). In its Twombly decision, the Supreme Court stated that the "no set of facts" language, which was taken from a phrase used in Conley v. Gibson, 355 U.S. 41 (1957), had "been questioned, criticized, and explained away long enough," and had "earned its retirement." Twombly, 550 U.S. at 562-63.

Twombly was an antitrust case, but in its decision two years later in Iqbal, the Court made clear that the "plausibility" pleading standard set forth in Twombly applies to civil cases generally. See Iqbal, 129 S.Ct. at 1949, 1953. Thus, that standard is by now well established.

Remarkably, however, in her memorandum of law in opposition to defendant's motion to dismiss, plaintiff relies on the now-"retired" "no set of facts" pleading standard.. See Dkt. #6-2 at 6. She also quotes the Second Circuit's Twombly decision, but she does not cite the Supreme Court's decision in Twombly, which reversed the very decision cited by plaintiff. There is no indication whatsoever in plaintiff's brief that the Second Circuit's Twombly decision is no longer good law.

Regardless of whether plaintiff's counsel was aware of this when she filed her brief, the Supreme Court has made clear that it is not enough simply to recite the elements of a claim, and to allege the existence of those elements in general, conclusory fashion. Rather, a complaint must contain enough "factual amplification ... to render a claim plausible." Arista Records LLC v. Doe 3, 604 F.3d 110, 120 (2d Cir. 2010) (quoting Turkmen v. Ashcroft, 589 F.3d 542, 546 (2d Cir. 2009)). In addition, in assessing the viability of a complaint, the court is free to "identify[] pleadings that, because they are no ...

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