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Cynthia A. Smith v. U.S. Army Corps of Engineers and James Miller

May 20, 2011


The opinion of the court was delivered by: William M. Skretny Chief Judge United States District Court



Plaintiff Cynthia A. Smith ("Plaintiff"), proceeding pro se, commenced this employment discrimination action by filing a Complaint in the United States District Court for the Western District of New York. (Docket No. 1.) Therein, Plaintiff alleges that Defendants, the U.S. Army Corps of Engineers ("USACE") and James Miller ("Miller"), in his official capacity, discriminated against her on the basis of sex (female) in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (hereinafter, "Title VII") and the Federal Tort Claims Act, 28 U.S.C. 1346(b), 2671 et seq. (hereinafter, "FTCA").

Defendants now move to dismiss Plaintiff's Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and/or 12(b)(6).*fn1 Plaintiff opposes this motion.*fn2 For the reasons stated below, Defendants' motion is granted.


A. Facts

Plaintiff is the sole owner of Morning Star Construction, a company based in Rochester, New York. (See Compl., Formal Stmt., p. 1.) During the Hurricane Katrina recovery effort in Louisiana, she operated the dump truck she owned pursuant to a multi-tier contract. (Id. p. 1.) Phillips and Jordan, Inc. was the prime contractor under the multi-tier contract. (Id. p. 2.) Operating under them was Bertucci Construction of New Orleans, Louisiana; Terry Tree Service of Rochester, New York; and Germeo Excavating, Inc. of Holley, New York. (Id. p. 2.)

Plaintiff was a member of a four-person haul crew supervised by Gary Germeo ("Germeo") of Germeo Excavating, Inc. (Id.) Germeo would load dump trucks with debris from the streets in the assigned locations. (Id.) Once the trucks were loaded and tarped, a ticket writer would issue a load slip for the material. (Id.)

In or around February 2006, each time Plaintiff was waiting for the ticket writer to issue her a load slip, Miller, a Commander for the USACE, made comments regarding her looks, body, and relationship status. (Compl., p. 4; See Compl., Formal Stmt. pp. 2-3.) For instance, Miller asked Plaintiff to take of her sunglasses, then commented on how pretty her eyes were. (See Compl., Formal Stmt. p. 2.) He also asked Plaintiff to remove her hard hat and commented how beautiful she looked without her hard hat on. (Id. pp. 3-4.) In addition, Miller questioned Plaintiff about her relationship with her boyfriend and stated it was "killing [him]" that she "belong[ed] to someone else." (Id. p. 4.) He further stated that he would like to get her supervisor to fire her so he could look at her more often. (Id.)

On another occasion, Bobby Taylor, employee of City Wide, asked Plaintiff to unzip her white safety suit, then placed his finger on her stomach and commented to Miller that her stomach was nice and he should get a closer look. (Id. p. 3.) Miller then approached Plaintiff, telling her he had not been with a woman in six months. (Id.)

After Plaintiff's supervisor brought the harassment to the attention of the USACE, her crew was closely watched in order to catch them making any mistakes. (Id. pp. 4-5.) For instance, on February 25, 2006, USACE employee Josh Jimmerfield circled their area approximately 16 times. (Id. p. 5.) In addition, Miller drove up to Germeo as he was pulling nails from his loader tire. (Id.) Miller asked if any nails had gone through. (Id.) Germeo said "no," then walked away. (Id.)

B. Procedural History

On February 26, 2008, Plaintiff filed a claim pursuant to the FTCA against the United States. (See Compl., FTCA Claim.) On February 25, 2009, the Department of the Army denied Plaintiff's claim, finding that the allegations against Miller, if true, do not amount to sexual harassment. (See Compl., Dept. of Army Letter.)

On March 9, 2009, Plaintiff commenced this action, pro se, by filing a Complaint with the Clerk of this Court. (Docket No. 1.) Defendants filed the instant Motion to Dismiss on August 10, 2009. (Docket No. 9.)


A. Standards of Review

Defendants argue that Plaintiff's Complaint should be dismissed for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) and/or for failure to state a claim upon which relief could be granted under Rule 12(b)(6).

1. Rule 12(b)(1)

A case is properly dismissed for lack of subject matter jurisdiction under Rule 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). The plaintiff bears the burden of establishing the existence of federal jurisdiction. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61, 112 S. Ct. 2130, 119 L. Ed. 2d 351 (1992).

Where, as here, the jurisdictional challenges are raised at the pleading stage, the court accepts as true all factual allegations in the complaint and draws all reasonable inferences in the plaintiff's favor. Sharkey v. Quarantillo, 541 F.3d 75, 83 (2d Cir. 2008). It is "presume[d] that general [fact] allegations embrace those specific facts that are necessary to support the claim." Lujan v. Nat'l Wildlife Fed'n, 497 U.S. 871, 889, 110 S. Ct. 3177, 111 L. Ed. 2d 695 (1990) (alterations added). The court also may consider affidavits and other evidence outside the pleadings to resolve the jurisdictional issue, but it may not rely on conclusory or hearsay statements contained in affidavits. J.S. v. Attica Cent. Schs., 386 F.3d 107, 110 (2d Cir. 2004), cert. denied, 544 U.S. 968, 125 S. Ct. 1727, 161 L. Ed. 2d 616 (2005). Indeed, courts "must" consult factual submissions "if resolution of a proffered factual issue may result in the dismissal of the complaint for want of jurisdiction." Robinson v. Gov't of Malaysia, 269 F.3d 133, 140 n.6 (2d Cir. 2001).

2. Rule 12(b)(6)

Rule 12(b)(6) allows dismissal of a complaint for "failure to state a claim upon which relief can be granted." Fed. R. Civ. P. 12(b)(6). Federal pleading standards are generally not stringent. Rule 8 requires only a short and plain statement of a claim. Fed. R. Civ. P. 8(a)(2). But the plain statement must "possess enough heft to show that the pleader is entitled to relief." Bell Atlantic Corp. v. Twombly, 550 ...

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