The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge
Currently before the Court, in this employment discrimination action filed by Irene Cornue ("Plaintiff") against Welch-Allyn, Inc. ("Defendant"), are Defendant's motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted pursuant to Fed. R. Civ. P. 12(b)(6) (Dkt. No. 4), and Plaintiff's cross-motion to amend her Complaint (Dkt. No. 7). For the reasons set forth below, Defendant's motion to dismiss is granted in part and denied in part without prejudice to refiling in state court; Plaintiff's federal claims are dismissed with prejudice; Plaintiff's cross-motion to amend is granted; and this action is remanded to the New York State Supreme Court, Onondaga County.
Plaintiff originally filed her Complaint in this action on June 24, 2010, in New York State Supreme Court, Onondaga County. (Dkt. No. 1.) However, on October 15, 2010, Defendant removed that action to this Court. (Id.)
Generally, liberally construed, Plaintiff's Complaint alleges as follows. (See generally Dkt. No. 1, Ex. A.) Plaintiff was a female, 49-year-old, employee of Defendant at its Skaneateles office. Plaintiff had been an employee of Defendant's Skaneateles office for approximately 22 years and had received promotions, bonuses and good performance reviews during her employment. In 2006, Defendant closed its San Diego, California, office and transferred employee Donna Dungin to work at the Skaneateles office. Ms. Dungin and Plaintiff shared an amiable friendship outside the workplace until sometime in 2008. During 2008, Ms. Dungin allegedly began harassing Plaintiff by calling her constantly and following her.
On one occasion, Plaintiff was allegedly overheard laughing about Ms. Dungin, which prompted Defendant to investigate her for violating the company's "kind and true" policy; however, nothing more was done regarding the possible violation. Plaintiff proceeded to file a report about Ms. Dungin at the New York State Police barracks, and brought to the attention of Defendant a harassing voice mail message, which had been left on her work phone by Ms. Dungin. Defendant stated that there was nothing that it could do to remedy the situation. The alleged harassment by Ms. Dungin continued in 2009 and culminated in an altercation in the women's restroom at Defendant's Skaneateles office.
On June 19, 2009, Plaintiff went to the women's restroom at the end of the day. Ms. Dungin was already in the restroom. Plaintiff originally waited for Ms. Dungin to leave before exiting her stall, but then gave up and attempted to leave the restroom. Ms. Dungin allegedly became irate and blocked the exit. Ms. Dungin allegedly hit Plaintiff in the chest and ripped off her necklace; then Plaintiff allegedly shoved Ms. Dungin and left the restroom. Defendant subsequently terminated both Ms. Dungin and Plaintiff for violation of their zero-tolerance-forworkplace-violence policy. Defendant had allegedly allowed other male employees involved in violent workplace altercations to retain their jobs.
Based on these (and other) factual allegations, Plaintiff's Complaint asserts that between June 18, 2009, and June 19, 2009, at Defendant's place of business in Skaneateles, New York, Defendant subjected Plaintiff to discrimination by terminating her based on her age and gender. More specifically, Plaintiff's Complaint asserts the following three claims: (1) a claim that Defendant violated her rights under New York State law by allowing Plaintiff's co-worker, Donna Dungin, to harass her in the work place, which created a hostile work environment; (2) a claim that Defendant violated her rights under the constitutions of the State of New York and the United States to be free from discrimination based on gender by terminating her because of a violation of Defendant's zero-tolerance-for-workplace-violence policy when male employees had previously violated the same policy and retained their jobs; and (3) a claim that Defendant violated her rights under the constitutions of the State of New York and the United States, and the Age Discrimination in Employment Act of 1967, to be free from discrimination based on age by using Plaintiff's violation of Defendant's zero-tolerance-for-workplace-violence policy as a pretext to terminate Plaintiff, a 49-year-old employee. (Id.) Familiarity with the factual allegations in Plaintiff's Complaint supporting these claims is assumed in this Decision and Order, which is intended primarily for review by the parties. (Id.)
Generally, in support of its motion to dismiss Plaintiff's Complaint for failure to state a claim upon which relief can be granted, Defendant argues as follows: (1) Plaintiff's claim that she was subjected to a hostile work environment should be dismissed because she has failed to allege facts plausibly suggesting that she was subjected to such hostility because she is a member of a protected class; (2) Plaintiff's claim of gender discrimination should be dismissed because
(a) she has failed to exhaust available administrative remedies before bringing suit, (b) she has failed to allege facts plausibly suggesting that male employees, in similar situations, were not terminated, (c) she has failed to allege facts plausibly suggesting that Defendant is a state actor,
(d) and the New York State Constitution does not provide relief for gender discrimination in the workplace; and (3) Plaintiff's age discrimination claim should be dismissed because (a) she has failed to file a charge with the appropriate administrative agency before filing her Complaint, (b) she has failed to allege facts plausibly suggesting that Defendant is a state actor, and (c) the New York State Constitution does ...