United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
GREGORY H. WOODS, United States District Judge:
plaintiff, Ms. Jessy Boustany, alleges that she was sexually
harassed by her supervisor, Mr. George El Hani, over the
course of her twenty-six months working for Xylem, Inc.
(“Xylem”). Mr. El Hani callously abused his
authority, threatening Ms. Boustany's job if she did not
succumb to his sexual advances. Nearly all of the acts that
Ms. Boustany complains of took place outside of the United
States-in her, and Mr. El Hani's home country, Lebanon,
or on business trips to Europe. Ms. Boustany travelled twice
on business trips to the United States with Mr. El Hani,
during each of which he made unwanted sexual advances. Ms.
Boustany complained about Mr. El Hani's behavior to
Xylem's New York headquarters, which ultimately launched
an investigation, and terminated Mr. El Hani. Xylem also,
however, later terminated Ms. Boustany. While the conduct
that Ms. Boustany alleges is egregious, because Ms. Boustany
is not a U.S. citizen, and was not employed in the United
States, she cannot maintain an action under Title VII, which
has limited extraterritorial application. As a result, Ms.
Boustany's claims against Xylem under Title VII are
dismissed. The Court declines to retain supplemental
jurisdiction over her remaining state law claims.
Boustany is a Middle-Eastern woman, who resided in Beirut,
Lebanon. Compl. ¶¶ 6, 11. In July 2012, she began
to work for Xylem, Inc. (“Xylem”), as an
application engineer. Id. ¶ 15. Ms. Boustany
worked in the company's Lebanon office. Id.
¶¶ 44, 51. Ms. Boustany's salary was denominated
in Euro-approximately €1, 264 per month, the equivalent
of $1, 337.15 per month. Id. ¶ 16. Xylem's
corporate headquarters is located in New York. Id.
¶ 5. Ms. Boustany's supervisor at the time that she
was hired, and thereafter, was George El Hani, a Xylem
employee. Id. ¶ 9. Mr. El Hani was the
Managing Director of the Middle East for Xylem, and
“had that [sic] ability to hire, fire and effect [sic]
the terms and conditions of Plaintiff's
employment.” Id. ¶ 10.
from the date of her interview, Mr. El Hani began a campaign
of sexual harassment against Ms. Boustany. Id.
¶¶ 18-19. Even before her first interview, Mr. El
Hani commented on Ms. Boustany's “gorgeous outfits,
” and shortly after she was hired, his harassment
became more overt. Id. ¶¶ 20-22. Within a
month of her hiring, Mr. El Hani attempted to kiss Ms.
Boustany, and complimented her physical appearance crudely.
Id. ¶¶ 21-22. Within three months, Mr. El
Hani had asked her to sit at his desk and work in his office,
and claimed that he could not live without her. Id.
¶¶ 23-24. His treatment of her took a toll on Ms.
Boustany's health; she was constantly dizzy as a result
of her emotional distress. Id. ¶ 25.
October 2012, Ms. Boustany was fired because she did not
accede to Mr. El Hani's sexual advances. Id.
¶ 26. But, shortly thereafter, Mr. El Hani rehired her,
telling her ominously that he did so for “personal
reasons.” Id. At the time, Ms. Boustany
“understood [Mr. El Hani's] comment to indicate
that her reemployment was conditioned on acquiescing to his
sexual advances.” Id. Ms. Boustany began
working for Xylem, and Mr. El Hani, again.
after rehiring her, in November 2012, Mr. El Hani accompanied
Ms. Boustany to a training program in Austria. Id.
¶ 27. While there, he overtly propositioned her for sex,
but she rejected his advances. Id. One month later,
in December 2012, Mr. El Hani again accompanied Ms. Boustany
on an overseas trip to Italy. Id. ¶ 28. This
time, he booked a single room for both of them. “At
this time, Defendant El Hani had been making sexual advances
towards her for 6 months, reminding her that her reemployment
was contingent upon her acquiescence to sleep with
him.” Id. Mentally drained, and fearing the
loss of her job, Ms. Boustany succumbed. Id.
January 2013, Mr. El Hani organized a business trip to
Chicago. Id. ¶ 30. He forced Ms. Boustany to
travel there with him “although she had no business in
Chicago.” Id. While there, Mr. El Hani
summoned Ms. Boustany to his room, telling her “I am
your boss and I am asking you to come to this hotel.”
Id. At the hotel, he again made unwanted advances
toward Ms. Boustany. Id. And after having sex with
her, Mr. El Hani grotesquely kicked her out of his room to
the hall outside, where she collapsed, only to awake the next
day in her room. Id. The experience left Ms.
Boustany emotionally distraught. Id. On another
business trip to the United States, this time to Texas, Mr.
El Hani booked a room for himself and Ms. Boustany.
Id. ¶ 31. Ms. Boustany did not want to stay
with Mr. El Hani, but he forced her to keep the reservation
as he had made it. Id.
Boustany complained to Mr. El Hani that his conduct was
unwelcome and unwarranted, but he continued to touch her
inappropriately, embarrassing and humiliating her.
Id. ¶¶ 34-35. Mr. El Hani used Ms.
Boustany's “cultural practices” to manipulate
and control her, along with threats to her employment if she
failed to continue as his sexual partner. Id.
eleven months of mistreatment following her rehiring, in
September 2013, Ms. Boustany complained about Mr. El
Hani's sexual harassment and discrimination to
Xylem's regional director, Valerie Lassalle. Id.
¶ 36. Ms. Lassalle in turn reported the matter to
Cornett Lewers, the chief ethics and compliance officer in
Xylem's New York headquarters. Id. ¶ 37.
Mr. Lewers contacted Ms. Boustany on November 7, 2013 and
informed her that an investigation of her complaints would
take place. Id. ¶ 38. During the investigation
that followed, Mr. El Hani's treatment of Ms. Boustany
“grew retaliatory and unbearable.” Id.
¶ 39. On at least fourteen occasions between November
2013 and October 2014, Ms. Boustany complained to Ms.
Lassalle, Mr. Lewers, and others about her mistreatment by
Mr. El Hani, and his retaliation against her. Id.
¶ 40. Four times in early 2014, Ms. Boustany emailed Ms.
Lassalle, Mr. Lewers, and the regional director, Vincent
Chirouze, to follow up about her November 2013 complaint.
Id. ¶ 42. The defendants failed to respond.
Id. ¶¶ 43, 50.
either December 2013 or January 2014, Mr. El Hani demoted Ms.
Boustany, allegedly to retaliate against her. Id.
¶ 44. As a result of the change in position, she was now
supervised by a manager based in Dubai. Id. Ms.
Boustany does not allege further sexual harassment by Mr. El
Hani following her change in supervisors, but she does allege
that Mr. El Hani continued to act out against her in
retaliation for her complaints: he blamed her for others'
mistakes, cancelled a possible trip to Chicago by Ms.
Boustany, forced her to stay at cheaper hotels than her
colleagues, and even prevented her from travelling to Dubai
at the request of her new supervisor. Id.
¶¶ 45-47, 49. Ms. Boustany felt isolated from her
colleagues, who saw her as a “troublemaker.”
Id. ¶ 48.
Boustany again complained to Xylem's human resources
office by email, but Xylem never responded; nor did they
respond when Ms. Boustany's new supervisor raised the
issue with them. Id. ¶ 50. Finally, however, in
March 2014, Mr. Lewers travelled to Lebanon from his office
in New York, together with Ms. Lassalle and Mr. Chirouze.
While that group was in Lebanon, they terminated Mr. El Hani.
Id. ¶ 51. Ms. Boustany was promised
“beautiful days and promotions” ahead.
Id. But beautiful days did not arrive. Instead, in
November 2014, as a condition to a “business
offer” by Xylem to Mr. El Hani, Ms. Boustany was
terminated. Id. ¶ 53.
Boustany filed a claim with the Equal Employment Opportunity
Commission (“EEOC”) alleging a violation of Title
VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.
§ 2000e et. seq. (“Title VII”); she
received a right to sue letter from the EEOC on September 30,
2015. Id. ¶¶ 13-14. Boustany filed her
complaint in this matter on December 23, 2015, alleging
violations of Title VII by Xylem and violations of the New
York State Human Rights Law, N.Y. Exec. Law § 296
et. seq., by both Xylem and Mr. El Hani.
Id. ¶ 1. Xylem filed a motion to dismiss
pursuant to Fed.R.Civ.P. 12(b)(6) on April 4, 2016. ECF No.
26. On the same date, El Hani filed a separate motion to
dismiss pursuant to Fed.R.Civ.P. 12(b)(2), (5), and (6). ECF
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.'”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting
Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). “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. (citing
Twombly, 550 U.S. at 556).
complaint need not provide “detailed factual
allegations, ” it nevertheless must assert “more
than labels and conclusions” and more than “a
formulaic recitation of the elements of a cause of
action.” Twombly, 550 U.S. at 555. The facts
pleaded “must be enough to raise a right to relief
above the speculative level on the assumption that all the
allegations in the complaint are true.” Id.
(citations omitted). The court must accept all factual
allegations in the complaint as true, and draw all reasonable
inferences in favor of the nonmoving party. ATSI
Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98
(2d Cir. 2007); Burnette v. Carothers, 192 F.3d 52,
56 (2d Cir. 1999).
Applicability of Title VII to ...