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Boustany v. Xylem Inc.

United States District Court, S.D. New York

January 25, 2016

JESSY BOUSTANY, Plaintiff,
v.
XYLEM INC. and GEORGE EL HANI, Individually, Defendants.

          MEMORANDUM OPINION AND ORDER

          GREGORY H. WOODS, United States District Judge:

         I. INTRODUCTION

         The 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.

         II. BACKGROUND[1]

         A. Factual Background

         Ms. 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.[2] Id. ¶ 15. Ms. Boustany worked in the company's Lebanon office. Id. ¶¶ 44, 51.[3] 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.[4] 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.

         Starting 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.

         In 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.

         Shortly 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.

         In 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.

         Ms. 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. ¶¶ 32-33.

         After 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.

         In 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.

         Ms. 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.

         B. Procedural Background

         Ms. 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 No. 31.

         III. LEGAL STANDARD

         “To 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).

         While a 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).

         IV. DISCUSSION

         A. Applicability of Title VII to ...


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