Chandler v. Houghton Mifflin Harcourt Publishing Company et al

Filing 32

DECISION AND ORDER granting # 28 Defendant's Motion to Dismiss Plaintiff's Amended Complaint for failure to state a claim upon which relief may be granted. Plaintiff's Amended Complaint is dismissed with prejudice EXCEPT for Plaintif f's post-release claims for defamation and tortious interference with prospective economic advantage under state law, which are dismissed WITHOUT prejudice to filing in state court within the applicable limitations periods. Signed by Chief Judge Glenn T. Suddaby on 1/10/18. (lmw) (Copy served upon pro se plaintiff via regular and certified mail)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
ELAINE M. CHANDLER,
Plaintiff,

5:17-CV-0457
(GTS/ATB)

v.
HOUGHTON MIFFLIN HARCOURT PUBL’G
CO., AND ITS EMPLOYEES; MASSIMO RUBINI,
Individually and in His Official Capacity; and JOHN
HURLEY, Individually and in His Official Capacity,
Defendants.
____________________________________________
APPEARANCES:

OF COUNSEL:

ELAINE M. CHANDLER
Plaintiff, Pro Se
412 Cleveland Blvd.
Fayetteville, New York 13066
BOND, SCHOENECK & KING, PLLC
Counsel for Defendants
One Lincoln Center
Syracuse, New York 13202

LAURA H. HARSHBARGER, ESQ.
SUZANNE M. MESSER, ESQ.

GLENN T. SUDDABY, Chief United States District Judge
DECISION and ORDER
Currently before the Court, in this pro se employment discrimination action filed by
Elaine M. Chandler (“Plaintiff”) against Houghton Mifflin Harcourt Publishing Company
(“HMH”) and two of its employees, Massimo Rubini, and John Hurley (collectively
“Defendants”), is Defendants’ motion to dismiss Plaintiff’s Amended Complaint for failure to
state a claim upon which relief can be granted, pursuant to Fed. R. Civ. P. 12(b)(6). (Dkt. No.
28.) For the reasons set forth below, Defendants’ motion is granted.

I.

RELEVANT BACKGROUND
A.

Plaintiff’s Amended Complaint

Generally, liberally construed, Plaintiff’s Amended Complaint alleges as follows. (Dkt.
No. 25 [Pl.’s Am. Compl.].)
Plaintiff’s Professional Responsibilities at HMH
HMH is a publisher of textbooks and digital educational programs. (Id., ¶ 10.) In
February of 2014, HMH hired Plaintiff as an Account Executive to serve the Upstate New York
and Western Pennsylvania areas of HMH’s operations where Plaintiff sold textbooks and digital
education programs to private, parochial and charter schools. (Id., ¶ 13.) Plaintiff worked from
home but would drive across New York and Pennsylvania to visit schools, present textbook
programs, attend book exhibits, and promote HMH’s education programs at luncheons and other
promotional gatherings. (Id., ¶ 16.)
Defendant Massimo Rubini
In November of 2014, Plaintiff’s supervisor, Amy Senius, informed Plaintiff that a new
employee, Defendant Rubini, had been hired for an entry-level position, and asked Plaintiff to
help Rubini “get up to speed on HMH products.” (Id., ¶ 18.) When Plaintiff first met Defendant
Rubini, she told him that Ms. Senius had asked her to assist Rubini, and invited him to attend an
upcoming presentation to school principals in Albany, NY. (Id., ¶ 19.) Defendant Rubini did
not verbally respond to Plaintiff; rather, he gave a sly smile, looked Plaintiff up and down, and
walked away. (Id., ¶ 20.) In January of 2015, Ms. Senius announced that Defendant Rubini had
been promoted from his entry-level position to Ms. Senius’s Assistant Manager and informed
Plaintiff that she was to report to Rubini. (Id., ¶¶ 21-22.)

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In April of 2015, Defendant Rubini informed Plaintiff that he would be attending her
presentations on two consecutive days. (Id., ¶ 23.) At some point during the first day of
presentations, Defendant Rubini looked Plaintiff up and down and made comments about her
outfit. (Id., ¶ 27.) Later that same day, Defendant Rubini hugged Plaintiff more tightly and for
longer than a casual friend would do. (Id., ¶ 29.) Plaintiff informed Defendant Rubini that the
hug felt uncomfortable. (Id., ¶ 30.) During the second day of presentations, Defendant Rubini
once again looked Plaintiff up and down and commented on her outfit. (Id., ¶ 32.)
In May of 2015, Defendant Rubini attended a luncheon that Plaintiff had scheduled in
Pittsburgh, PA, for the Superintendent and other top administrators of the Diocese of Pittsburgh.
(Id., ¶ 33.) At the end of the luncheon, while the administrators were still present, Defendant
Rubini hugged Plaintiff and slid his hand down her backside. (Id., ¶ 34.) After the
administrators left, Plaintiff told Defendant Rubini that she did not want to be touched in that
way and that it was highly inappropriate. (Id., ¶ 36.) Defendant Rubini responded by saying that
“I was hired because I have special qualities.” (Id., ¶ 37.) At another presentation for
administrators in Pittsburgh, PA, in July of 2015, Defendant Rubini looked Plaintiff up and down
but kept his distance from her. (Id., ¶ 39.)
On September 24, 2015, Defendant Rubini attended Plaintiff’s scheduled school visits
with her. (Id., ¶ 41.) At the end of the day’s visits, Defendant Rubini directed Plaintiff to
present a revenue plan to him to the lobby of his hotel. (Id., ¶ 42.) Plaintiff presented a revenue
plan as requested and Defendant Rubini expressed his appreciation for the plan. (Id., ¶¶ 43-44.)
Defendant Rubini then hugged Plaintiff and slid his hand down her backside. (Id., ¶ 44.)
Plaintiff told Defendant Rubini once again that she did not like his behavior and that she was

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going to report it. (Id., ¶ 45.) The following day, Plaintiff researched how to report sexual
harassment on HMH’s employee website and discovered that the procedure was to report the
behavior to the employee’s immediate supervisor. (Id., ¶ 46.) Because Defendant Rubini was
Plaintiff’s immediate supervisor, she felt too intimidated to file a complaint regarding Rubini’s
inappropriate behavior with Rubini. (Id., ¶ 47.) Instead, Plaintiff confided to two other account
executives. (Id., ¶ 48.)
From October until December 2015, Defendant Rubini did not contact Plaintiff to visit
schools together. (Id., ¶ 49.) On December 23, 2015, Defendant Rubini called Plaintiff
regarding her performance review for 2015. (Id., ¶ 50.) Defendant Rubini advised Plaintiff that
the telephone call was a substitute for HMH’s required face-to-face discussion regarding
performance evaluations. (Id.) Defendant Rubini then informed Plaintiff that she was receiving
a poor performance rating of “does not meet expectations.” (Id., ¶ 51.) When Plaintiff
questioned Rubini’s evaluation, he responded that it was because Plaintiff’s territory goal was at
64%. (Id., ¶ 52.) Plaintiff reminded Defendant Rubini that he was well aware of the large
amount of orders that had been placed on hold due to a school budget impasse in Pennsylvania,
and that, when those orders were taken into account, her territory goal was at 92%. (Id., ¶ 53.)
Defendant Rubini responded that Plaintiff’s poor review was based on a “commit ratio,” which is
an algorithm in HMH’s online sales reporting system. (Id., ¶ 54.) No one had ever discussed the
term or concept of a “commit ratio” with Plaintiff before. (Id., ¶ 55.) Plaintiff refused to sign off
on her performance review and instead sent an e-mail message to HMH’s Human Resources
(“HR”) Department regarding Defendant Rubini’s evaluation. (Id., ¶ 56.) When HMH’s HR
Department e-mailed Defendant Rubini, Rubini denied that he had discussed a “commit ratio”
during his performance review of Plaintiff. (Id., ¶ 57.)
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Defendant John Hurley
In late December of 2015, Plaintiff learned that, as of January 1, 2016, Defendant Rubini
would no longer be her manager and she would be supervised by HMH NY Field Sales Manager
Lynn Robson. (Id., ¶ 64.) However, Plaintiff was then contacted by a second-level manager,
HMH Mid-Atlantic District Manager John Hurley, and was told that Hurley himself would be
traveling from Chicago, Illinois, to Upstate New York to work with Plaintiff exclusively. (Id., ¶
65.)
From February 9, 2016, through February 11, 2016, Defendant Hurley traveled to
Albany, NY, with Plaintiff, and accompanied her on school visits. (Id., ¶ 70.) Instead of the
usual practice of taking separate cars to school visits, Defendant Hurley informed Plaintiff that
he would be riding with her in her car. (Id., ¶ 71.) While sitting in Plaintiff’s car in a parking lot
after the first school visit, Defendant Hurley told Plaintiff that he was good friends with
Defendant Rubini and that Hurley did not like the way that Plaintiff had treated Rubini. (Id., ¶
72.) Defendant Hurley told Plaintiff that he hoped she would treat him better than she had
treated Defendant Rubini. (Id., ¶ 73.) As Defendant Hurley said this, he took Plaintiff’s hand
and held it in his own. (Id., ¶ 74.) When Plaintiff asked Defendant Hurley what he meant, he
released her hand and instructed her to drive to the next school visit. (Id., ¶ 75.) Later, while
driving between school visits, Defendant Hurley repeated the statement that he hoped Plaintiff
would treat him better than she had treated Defendant Rubini. (Id., ¶ 76.) Defendant Hurley
could not take Plaintiff’s hand because she was using the car’s steering wheel; as a result,
Defendant Hurley rubbed Plaintiff’s forearm. (Id., ¶ 77.) Plaintiff again asked Defendant
Hurley what he meant and he did not respond and removed his hand. (Id., ¶ 78.) Defendant

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Hurley, who was married, was well known by other account executives within HMH for having
had at least one affair with a female HMH employee. (Id., ¶ 80.)
On February 10, 2016, while eating lunch at a restaurant with Defendant Hurley, Plaintiff
reported to Hurley that Defendant Rubini had acted inappropriately by hugging and groping her.
(Id., ¶ 81.) Plaintiff reported Defendant Rubini’s behavior to Defendant Hurley with the
expectation that, as Rubini’s superior, Hurley would report Rubini’s inappropriate behavior.
(Id., ¶ 82.) Plaintiff also hoped that, by reporting Rubini’s inappropriate behavior, Defendant
Hurley would no longer direct innuendos toward her. (Id., ¶ 83.) Instead, Defendant Hurley
became annoyed, looked away, and said, “Well, he’s Italian.” (Id., ¶ 84.) After lunch,
Defendant Hurley told Plaintiff to drop him off at his hotel and that he would not be
accompanying her on school visits for the rest of the day. (Id., ¶ 85.) Defendant Hurley told
Plaintiff to arrive at the lobby of his hotel the next morning at 8:30 a.m. (Id., ¶ 86.)
The next morning, Plaintiff arrived at the hotel lobby at 8:30 a.m. and met Defendant
Hurley. (Id., ¶ 87.) Hurley instructed Plaintiff to wait in the lobby while he finished some
paperwork. (Id., ¶ 88.) After approximately one hour, Defendant Hurley reappeared and
presented Plaintiff with a thirty-day performance improvement plan that was impossible to
execute. (Id., ¶ 89.) Plaintiff asked Defendant Hurley why she was being punished. (Id., ¶ 91.)
Defendant Hurley responded that he was told to do this by the “powers that be.” (Id., ¶ 92.)
Plaintiff asked who the “powers that be” were. (Id., ¶ 93.) Defendant Hurley became visibly
flustered and said “My supervisors!” but would not give any names. (Id., ¶ 94.) Defendant
Hurley told Plaintiff that he would not accompany her on any more school visits. (Id., ¶ 95.)

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From February 11, 2016, until March 4, 2016, during the time period of the performance
improvement plan, Defendant Hurley became increasingly hostile towards Plaintiff, telling her
that she must perform numerous impossible expectations not written into the original
performance improvement plan. (Id., ¶ 98.) Defendant Hurley threatened to fire Plaintiff if she
did not execute the plan exactly and he told her to. (Id., ¶ 99.) Other HMH employees placed on
performance improvement plans had not been required to complete such impossible tasks as
those assigned to Plaintiff by Defendant Hurley. (Id., ¶ 103.)
Plaintiff’s Sexual Harassment Complaint
On February 19, 2016, Plaintiff filed a sexual harassment complaint directly with HMH’s
HR administrators. (Id., ¶ 105.) HMH’s HR Department did not respond to Plaintiff’s complaint
until seven days later, on February 26, 2016. (Id., ¶ 106.) HMH’s HR representative, Barbara
Schmidt, called Plaintiff to inquire about the details of her complaint. (Id., ¶ 107.) Plaintiff told
Ms. Schmidt that she had been retaliated against for her rejection of, and reaction to, unwelcome
sexual advances with a poor performance review, as well as put on an impossible performance
improvement plan. (Id., ¶ 112.) Ms. Schmidt told Plaintiff that there would be an investigation
and she would contact Plaintiff the following week. (Id., ¶ 113.)
The following week, around March 2, 2016, Plaintiff called Ms. Schmidt and left her a
message inquiring about the status of Ms. Schmidt’s investigation. (Id., ¶ 114.) Ms. Schmidt did
not return Plaintiff’s telephone call. (Id., ¶ 115.) Instead, Defendant Hurley called Plaintiff and
told her that he wanted to schedule a telephone meeting for the following day at 5:00 p.m. (Id., ¶
116.) Defendant Hurley did not tell Plaintiff what he wanted to discuss. (Id., ¶ 117.) It was well
known at HMH that managers would set up a mysterious telephone meeting for a Friday at 5:00

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p.m. when they intended to lay off or fire an employee. (Id., ¶ 118.) Within the previous two
weeks, Defendant Hurley had threatened to fire Plaintiff. (Id., ¶ 119.)
Under these extremely stressful circumstances, Plaintiff was forced to negotiate an exit
from HMH. (Id., ¶ 120.) Plaintiff called Ms. Schmidt and left a message that she wanted to
negotiate an exit from the company. (Id., ¶ 121.) Ms. Schmidt returned Plaintiff’s call
immediately and put together a severance agreement, which was mailed to Plaintiff to sign. (Id.,
¶¶ 122-23.) Plaintiff signed the severance agreement, effective in March of 2016. (Id., ¶ 124.)
After signing the Confidential Separation Agreement and General Release (“Release”),
Plaintiff had no intention of filing a complaint with the U.S. Equal Employment Opportunity
Commission (“EEOC”) or a federal lawsuit. (Id., ¶ 133[a].) However, disturbing events
occurred after the Release, resulting in Plaintiff’s acquisition of a post-Release claim. (Id., ¶
133[c].) These events include Defendant Hurley making comments to at least two other HMH
managers regarding the Release and disparaging Plaintiff’s work ethic and character. (Id., ¶
133[e].) Defendant Hurley also disparaged Plaintiff’s work ethic and character to supervisory
employees at Plaintiff’s previous employer, McGraw-Hill. (Id., ¶ 133[f].) Defendant Hurley
and a manager from McGraw-Hill have spread information related to Plaintiff’s complaint and
the Release to other publishers. (Id., ¶ 133[g].) This conduct has prevented Plaintiff from
obtaining employment in the textbook industry because HMH and McGraw-Hill are the two
largest global education publishers. (Id., ¶ 133[h].)
In response to the EEOC investigation, HMH attorney, John F. Welsh, submitted a
position statement, which demonstrated that Defendant Hurley had knowingly perjured and
disparaged Plaintiff’s character. (Id., ¶ 133[i].) Specifically, Mr. Welsh stated on four occasions

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in his letter that Plaintiff had taken a job at McGraw-Hill and that she complained of sexual
harassment in order to extract money from HMH when she already had another job lined up.
(Id., ¶ 133[j].) Defendant Hurley reported this information to Mr. Welsh knowing that it is false
and in retaliation for Plaintiff having filed a complaint. (Id., ¶¶ 133[k-l].)
Based upon the foregoing, Plaintiff’s Amended Complaint asserts the following fifteen
claims: (1) a claim that HMH discriminated against Plaintiff and failed to take effective action in
response to her complaints of sexual harassment by Defendant Rubini in violation of Title VII;
(2) a claim that HMH discriminated against Plaintiff and failed to take effective action in
response to her complaints of sexual harassment by Defendant Rubini in violation of N.Y. Exec.
Law § 296; (3) a claim that HMH discriminated against Plaintiff and failed to take effective
action in response to her complaints of sexual harassment by Defendant Rubini in violation of
New York Civil Rights Law § 40-c; (4) a claim that HMH discriminated against Plaintiff and
failed to take effective action in response to her complaints of sexual harassment by Defendant
Rubini in violation of the New York State Constitution, Article 1, § 11; (5) a claim that
Defendant Rubini conditioned Plaintiff’s continued employment on her acquiescence to his
sexual demands and conduct and is therefore an aider and abettor within the meaning of N.Y.
Exec. Law § 296; (6) a claim that Plaintiff suffered intentional infliction of emotional distress as
a result of being subjected to unwanted and unwelcome sexual overtures and touching by
Defendant Rubini; (7) a claim that Plaintiff suffered intentional infliction of emotional distress as
a result of HMH’s failure and/or refusal to take effective remedial action after she complained
about Defendant Rubini’s sexual harassment; (8) a claim that HMH discriminated against
Plaintiff and failed to take effective remedial action in response to her complaints that Defendant

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Hurley (a) sexually harassed her, (b) failed to report Defendant Rubini’s sexual harassment of
her to HMH, and (c) retaliated against her by changing aspects of her employment in violation of
Title VII; (9) a claim that HMH discriminated against Plaintiff and failed to take effective
remedial action in response to her complaints that Defendant Hurley (a) sexually harassed her,
(b) failed to report Defendant Rubini’s sexual harassment of her to HMH, and (c) retaliated
against her by changing aspects of her employment in violation of N.Y. Exec. Law § 296; (10) a
claim that HMH discriminated against Plaintiff and failed to take effective remedial action in
response to her complaints that Defendant Hurley (a) sexually harassed her, (b) failed to report
Defendant Rubini’s sexual harassment of her to HMH, and (c) retaliated against her by changing
aspects of her employment in violation of New York Civil Rights Law 40-c; (11) a claim that
HMH discriminated against Plaintiff and failed to take effective remedial action in response to
her complaints that Defendant Hurley (a) sexually harassed her, (b) failed to report Defendant
Rubini’s sexual harassment of her to HMH, and (c) retaliated against her by changing aspects of
her employment in violation of New York State Constitution, Article 1, § 11; (12) a claim that
Defendant Hurley conditioned Plaintiff’s continued employment on her acquiescence to his
sexual innuendos and Defendant Rubini’s demands and conduct and is therefore an aider and
abettor within the meaning of N.Y. Exec. Law § 296; (13) a claim that Plaintiff suffered
intentional infliction of emotional distress as a result of being subjected to unwanted and
unwelcome sexual innuendos and overtures by Defendant Hurley; (14) a claim that Plaintiff
suffered intentional infliction of emotional distress as a result of being forced to leave her
employment with HMH in retaliation for complaining about Defendant Rubini’s sexual
harassment; and (15) a claim against HMH for intentional infliction of emotional distress as a

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result of Defendant Hurley spreading information about Plaintiff’s complaint and Release as well
as disparaging her work ethic and character. (Id., ¶¶ 134-229[f].)
B.

Parties’ Briefing on Defendants’ Motion
1.

Defendants’ Memorandum of Law

Generally, Defendants’ motion asserts the following five arguments. (Dkt. No. 28,
Attach. 2 [Defs.’ Mem. of Law].)
First, Defendants argue that Plaintiff has waived her first fourteen claims because those
claims accrued before she left her employment with HMH and she signed a general release of all
potential claims as part of her Confidential Separation Agreement. (Id. at 15.)1 Furthermore,
Defendants argue that the Release is enforceable because Plaintiff has not alleged facts plausibly
suggesting that it was the product of fraud, undue influence, or that she lacked the sophistication
to understand the clearly worded agreement. (Id. at 16.) Although Plaintiff alleges that she
believed Defendant Hurley was going to fire her and that this “forced” her to “negotiate an exit”
from her employment, Defendants argue that this does not plausibly suggest duress because (a)
Plaintiff has not alleged that HMH used the possibility of firing her as leverage during the
release negotiations, and (b) in any event, even if Plaintiff alleged facts plausibly suggesting that
she entered the Release under duress, she did not revoke her acceptance of the agreement during
the seven-day period afforded to her after her acceptance, and she has ratified the agreement by
keeping the monetary payment that she received. (Id. at 17-18.)

1

Page citations refer to the page numbers used on CM/ECF rather than the actual
page numbers contained in the parties’ respective motion papers.
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Second, in the event that this Court believes that Plaintiff’s factual allegations are
sufficient and that there is a factual issue related to the validity of the Release, Defendants
request that the Court order limited discovery on the issue with leave for Defendant to
immediately file a motion for summary judgment upon the completion of discovery. (Id. at 1819.)
Third, with regard to Plaintiff’s fifteenth claim, Defendants argue that any statements
made to the EEOC in defense of Plaintiff’s EEOC complaint are absolutely privileged. (Id. at
19-20.) Furthermore, Defendants argue that any allegations that Defendant Hurley said negative
things to a friend about Plaintiff’s work ethic and character and/or that he disclosed information
regarding her complaint and release cannot serve as a basis for a claim of intentional infliction of
emotional distress because it is well settled that such criticism does not amount to “extreme and
outrageous” conduct. (Id. at 20.)
Fourth, Defendants argue that the claims against Defendant Rubini should be dismissed
because Plaintiff has not alleged facts plausibly suggesting that any of his alleged misconduct
occurred after she signed the Release. (Id. at 21.)
Fifth, and finally, Defendants argue that the claims against Defendant Hurley should be
dismissed because Plaintiff has not alleged facts plausibly suggesting that any of his alleged
misconduct occurred after she signed the Release. (Id.) Although Plaintiff alleges that
Defendant Hurley’s statements form the basis of her fifteenth claim, Defendants argue that
Plaintiff asserted that claim against HMH only. (Id.)

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2.

Plaintiff’s Opposition Memorandum of Law

Generally, liberally construed, Plaintiff’s opposition memorandum of law asserts the
following four arguments. (Dkt. No. 30 [Pl.’s Opp’n Mem. of Law].)
First, Plaintiff argues that Defendants have invalidated the terms of the Release, because
they violated the “non-disparagement” clause of the Release by falsely disparaging her character
to third-parties. (Id., ¶¶ 4, 7, 17-18.) Plaintiff cites page 3 of the Release in support of her
argument that the Release binds not simply Plaintiff but Defendants. (Id., ¶¶ 5-6.)
Second, Plaintiff argues that she is not claiming that she was forced to enter into the
Separation Agreement and Release under duress. (Id., ¶ 8.)
Third, Plaintiff argues that, even if the statements made to the EEOC by Defendants are
privileged, those statements should still be considered because they demonstrate that Defendant
Hurley intentionally spread false and disparaging information about her and that Defendant
Hurley knowingly perjured himself. (Id., ¶ 11.)
Fourth, and finally, Plaintiff argues that her claims for intentional infliction of emotional
distress should not be dismissed because (a) Defendant Hurley intentionally spread false and
disparaging statements about her, and (b) she suffered sexual harassment from both Defendants
Hurley and Rubini. (Id., ¶¶ 12-16.)
3.

Defendants’ Reply Memorandum of Law

Generally, Defendants’ reply memorandum of law asserts the following two arguments.
(Dkt. No. 31 [Defs.’ Reply Mem. of Law].)
First, Defendants argue that Plaintiff has conceded in her opposition memorandum of law
that the Confidential Separation Agreement and Release are valid and that she is not claiming

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that they are invalid because of duress. (Id. at 4.) Furthermore, Defendants argue that they
could not have invalidated the terms of the Release by making negative statements about
Plaintiff because the Release does not contain any provisions requiring HMH or its employees to
maintain confidentiality of the Agreement or prohibiting them from making negative statements
about Plaintiff. (Id. at 5.)
Second, Defendants reiterate their argument that Defendant Hurley’s statements to the
EEOC are privileged and Plaintiff has failed to allege facts plausibly suggesting a claim for
intentional infliction of emotional distress. (Id. at 5-6.)
II.

RELEVANT LEGAL STANDARD
It has long been understood that a dismissal for failure to state a claim upon which relief

can be granted, pursuant to Fed. R. Civ. P. 12(b)(6), can be based on one or both of two grounds:
(1) a challenge to the “sufficiency of the pleading” under Fed. R. Civ. P. 8(a)(2); or (2) a
challenge to the legal cognizability of the claim. Jackson v. Onondaga Cty., 549 F. Supp. 2d
204, 211, nn. 15-16 (N.D.N.Y. 2008) (McAvoy, J., adopting Report-Recommendation on de
novo review).
Because such dismissals are often based on the first ground, a few words regarding that
ground are appropriate. Rule 8(a)(2) of the Federal Rules of Civil Procedure requires that a
pleading contain “a short and plain statement of the claim showing that the pleader is entitled to
relief.” Fed. R. Civ. P. 8(a)(2) [emphasis added]. In the Court’s view, this tension between
permitting a “short and plain statement” and requiring that the statement “show[]” an entitlement
to relief is often at the heart of misunderstandings that occur regarding the pleading standard
established by Fed. R. Civ. P. 8(a)(2).

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On the one hand, the Supreme Court has long characterized the “short and plain”
pleading standard under Fed. R. Civ. P. 8(a)(2) as “simplified” and “liberal.” Jackson, 549 F.
Supp. 2d at 212, n.20 (citing Supreme Court case). On the other hand, the Supreme Court has
held that, by requiring the above-described “showing,” the pleading standard under Fed. R. Civ.
P. 8(a)(2) requires that the pleading contain a statement that “give[s] the defendant fair notice of
what the plaintiff’s claim is and the grounds upon which it rests.” Jackson, 549 F. Supp. 2d at
212, n.17 (citing Supreme Court cases) (emphasis added).
The Supreme Court has explained that such fair notice has the important purpose of
“enabl[ing] the adverse party to answer and prepare for trial” and “facilitat[ing] a proper decision
on the merits” by the court. Jackson, 549 F. Supp. 2d at 212, n.18 (citing Supreme Court cases);
Rusyniak v. Gensini, 629 F. Supp. 2d 203, 213 & n.32 (N.D.N.Y. 2009) (Suddaby, J.) (citing
Second Circuit cases). For this reason, as one commentator has correctly observed, the “liberal”
notice pleading standard “has its limits.” 2 Moore’s Federal Practice § 12.34[1][b] at 12-61 (3d
ed. 2003). For example, numerous Supreme Court and Second Circuit decisions exist holding
that a pleading has failed to meet the “liberal” notice pleading standard. Rusyniak, 629 F. Supp.
2d at 213, n.22 (citing Supreme Court and Second Circuit cases); see also Ashcroft v. Iqbal, 129
S. Ct. 1937, 1949-52 (2009).
Most notably, in Bell Atl. Corp. v. Twombly, the Supreme Court reversed an appellate
decision holding that a complaint had stated an actionable antitrust claim under 15 U.S.C. § 1.
Bell Atlantic Corp. v. Twombly, 127 S. Ct. 1955 (2007). In doing so, the Court “retire[d]” the
famous statement by the Court in Conley v. Gibson, 355 U.S. 41, 45-46 (1957), that “a complaint
should not be dismissed for failure to state a claim unless it appears beyond doubt that the

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plaintiff can prove no set of facts in support of his claim which would entitle him to relief.”
Twombly, 127 S. Ct. at 1968-69. Rather than turn on the conceivability of an actionable claim,
the Court clarified, the “fair notice” standard turns on the plausibility of an actionable claim. Id.
at 1965-74. The Court explained that, while this does not mean that a pleading need “set out in
detail the facts upon which [the claim is based],” it does mean that the pleading must contain at
least “some factual allegation[s].” Id. at 1965. More specifically, the “[f]actual allegations must
be enough to raise a right to relief above the speculative level [to a plausible level],” assuming
(of course) that all the allegations in the complaint are true. Id.
As for the nature of what is “plausible,” the Supreme Court explained that “[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.” Ashcroft v. Iqbal,
129 S.Ct. 1937, 1949 (2009). “[D]etermining whether a complaint states a plausible claim for
relief . . . [is] a context-specific task that requires the reviewing court to draw on its judicial
experience and common sense. . . . [W]here the well-pleaded facts do not permit the court to
infer more than the mere possibility of misconduct, the complaint has alleged–but it has not
show[n]–that the pleader is entitled to relief.” Iqbal, 129 S.Ct. at 1950 [internal quotation marks
and citations omitted]. However, while the plausibility standard “asks for more than a sheer
possibility that a defendant has acted unlawfully,” id., it “does not impose a probability
requirement.” Twombly, 550 U.S. at 556.
Because of this requirement of factual allegations plausibly suggesting an entitlement to
relief, “the tenet that a court must accept as true all of the allegations contained in the complaint
is inapplicable to legal conclusions. Threadbare recitals of the elements of a cause of action,

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supported by merely conclusory statements, do not suffice.” Iqbal, 129 S. Ct. at 1949.
Similarly, a pleading that only “tenders naked assertions devoid of further factual enhancement”
will not suffice. Iqbal, 129 S.Ct. at 1949 (internal citations and alterations omitted). Rule 8
“demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Id.
(citations omitted).
This pleading standard applies even to pro se litigants. While the special leniency
afforded to pro se civil rights litigants somewhat loosens the procedural rules governing the form
of pleadings (as the Second Circuit has observed), it does not completely relieve a pro se
plaintiff of the duty to satisfy the pleading standards set forth in Fed. R. Civ. P. 8, 10 and 12.2
Rather, as both the Supreme Court and Second Circuit have repeatedly recognized, the
requirements set forth in Fed. R. Civ. P. 8, 10 and 12 are procedural rules that even pro se civil
rights plaintiffs must follow.3 Stated more simply, when a plaintiff is proceeding pro se, “all
normal rules of pleading are not absolutely suspended.” Jackson, 549 F. Supp. 2d at 214, n.28
[citations omitted].4
2

See Vega v. Artus, 610 F. Supp. 2d 185, 196 & nn.8-9 (N.D.N.Y. 2009) (Suddaby,
J.) (citing Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34 (citing Second Circuit
cases).
3

See Rosendale v. Brusie, 374 F. App’x 195, 196 (2d Cir. 2010) (“[A]lthough the
courts remain obligated to construe a pro se complaint liberally, . . . the complaint must contain
sufficient factual allegations to meet the plausibility standard.”); Vega, 610 F. Supp. 2d at 196,
n.10 (citing Supreme Court and Second Circuit cases); Rusyniak, 629 F. Supp. 2d at 214 & n.34
(citing Second Circuit cases).
4

It should be emphasized that Fed. R. Civ. P. 8's plausibility standard, explained in
Twombly, was in no way retracted or diminished by the Supreme Court's decision (two weeks
later) in Erickson v. Pardus, in which (when reviewing a pro se pleading) the Court stated,
"Specific facts are not necessary" to successfully state a claim under Fed. R. Civ. P. 8(a)(2).
Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) [emphasis added]. That statement was merely
an abbreviation of the often-repeated point of law–first offered in Conley and repeated in
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Finally, a few words are appropriate regarding what documents are considered when a
dismissal for failure to state a claim is contemplated. Generally, when contemplating a dismissal
pursuant to Fed. R. Civ. P. 12(b)(6) or Fed. R. Civ. P. 12(c), the following matters outside the
four corners of the complaint may be considered without triggering the standard governing a
motion for summary judgment: (1) documents attached as an exhibit to the complaint or answer,
(2) documents incorporated by reference in the complaint (and provided by the parties), (3)
documents that, although not incorporated by reference, are “integral” to the complaint, or (4)
any matter of which the court can take judicial notice for the factual background of the case.5

Twombly–that a pleading need not "set out in detail the facts upon which [the claim is based]" in
order to successfully state a claim. Twombly, 127 S. Ct. 1965, n.3 (citing Conley, 355 U.S. at 47)
[emphasis added]. That statement did not mean that all pleadings may achieve the requirement
of "fair notice" without ever alleging any facts whatsoever. Clearly, there must still be enough
fact set out (however set out, whether in detail or in a generalized fashion) to raise a right to
relief above the speculative level to a plausible level. See Rusyniak, 629 F. Supp. 2d at 214 &
n.35 (explaining holding in Erickson).
5

See Fed. R. Civ. P. 10(c) (“A copy of any written instrument which is an exhibit
to a pleading is a part thereof for all purposes.”); L-7 Designs, Inc. v. Old Navy, LLC, No. 10573, 2011 WL 2135734, at *1 (2d Cir. June 1, 2011) (explaining that conversion from a motion
to dismiss for failure to state a claim to a motion for summary judgment is not necessary under
Fed. R. Civ. P. 12[d] if the “matters outside the pleadings” in consist of [1] documents attached
to the complaint or answer, [2] documents incorporated by reference in the complaint (and
provided by the parties), [3] documents that, although not incorporated by reference, are
“integral” to the complaint, or [4] any matter of which the court can take judicial notice for the
factual background of the case); DiFolco v. MSNBC Cable L.L.C., 622 F.3d 104, 111 (2d Cir.
2010) (explaining that a district court considering a dismissal pursuant to Fed. R. Civ. 12(b)(6)
“may consider the facts alleged in the complaint, documents attached to the complaint as
exhibits, and documents incorporated by reference in the complaint. . . . Where a document is
not incorporated by reference, the court may neverless consider it where the complaint relies
heavily upon its terms and effect, thereby rendering the document ‘integral’ to the complaint. . . .
However, even if a document is ‘integral’ to the complaint, it must be clear on the record that no
dispute exists regarding the authenticity or accuracy of the document. It must also be clear that
there exist no material disputed issues of fact regarding the relevance of the document.”)
[internal quotation marks and citations omitted]; Chambers v. Time Warner, Inc., 282 F.3d 147,
152 (2d Cir. 2009) (“The complaint is deemed to include any written instrument attached to it as
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III.

ANALYSIS
A.

Whether the Confidential Separation Agreement and General Release
Executed by the Parties Has Been Invalidated

After carefully considering the matter, the Court answers this question in the negative for
the reasons stated in Defendants’ memoranda of law. See, supra, Parts I.B.1. and I.B.3. of this
Decision and Order. To those reasons, the Court adds the following analysis.
As an initial matter, the Court finds that the Separation Agreement and General Release
are enforceable based on the totality of the circumstances alleged by Plaintiff. See Montanez v.
Cheesecake Factory Rest., 13-CV-1262, 2016 WL 1117516, at *2-3 (N.D.N.Y. Mar. 22, 2016)
(Suddaby, C.J.) (discussing the “totality of the circumstances” inquiry that is necessary to
ascertain whether a release was “knowing and voluntary”), aff’d, 675 F. App’x 77 (2d Cir.
2017), cert. denied, 138 S. Ct. 206 (2017). Therefore, pursuant to the Release, Plaintiff has
waived her claims against Defendants. (Dkt. No. 28, Attach. 2, at 8-9 [Defs.’ Mem. of Law];
Dkt. No. 28, Attach. 4, at 5, ¶ 6 [Confidential Separation Agreement & General Release].)6
Although Plaintiff claims that the terms of the Separation Agreement and Release have
been invalidated due to the actions of Defendant Hurley following the execution of the

an exhibit or any statements or documents incorporated in it by reference.”) (internal quotation
marks and citations omitted); Int'l Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72
(2d Cir.1995) (per curiam) (“[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which is integral to the
complaint,” the court may nevertheless take the document into consideration in deciding [a]
defendant's motion to dismiss, without converting the proceeding to one for summary
judgment.”) (internal quotation marks and citation omitted).
6

The Court notes that it may consider the Confidential Separation Agreement and
General Release as incorporated by reference in the Amended Complaint. See, supra, Part II &
n.5 of this Decision and Order. Once again, page citations refer to the page numbers used on
CM/ECF rather than the actual page numbers contained in the documents themselves.
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documents, the Court agrees with Defendants that the terms of the Release regarding
confidentiality and non-disparagement applied only to Plaintiff. Specifically, the relevant
portions of the provision entitled “Confidentiality and Non-Disparagement” state as follows:
“You shall refrain from all conduct, verbal or otherwise, that disparages or damages or could
disparage or damage the reputation, goodwill, or standing in the community of the Company or
any of the other Released parties.” (Dkt. No. 28, Attach. 4, at 8, ¶ 9[e]) (emphasis added).
Similarly, the Release states that “you shall not disclose the existence or terms of this Agreement
to any third parties . . . .” (Id., ¶ 9[d]) (emphasis added). As Defendants correctly argue, there
are no similar provisions requiring HMH and/or its employees to refrain from discussing the
Release with third parties or making negative statements about Plaintiff. See Sengillo v. Valeo
Elec. Sys., Inc., 328 F. App’x 39, 41-42 (2d Cir. 2009) (holding that the district court “properly
dismissed plaintiff’s breach of contract claim . . . because . . . VESI’s internal disclosure to
[another hiring manager] of the fact that plaintiff was terminated for poor performance did not
amount to a breach of VESI’s settlement agreement with plaintiff since the agreement did not
obligate VESI to avoid such disclosures”). The fact that Paragraph 6(a) of the Release defines
the term “Released Parties” as both Defendants and their “past [and] present . . . employees”
does not somehow mean that Paragraphs 9(d) and 9(e) of the Release (which expressly apply
only Plaintiff) prohibit Defendants from engaging in disparagement.
Accordingly, Plaintiff’s first fourteen claims are dismissed.
B.

Whether Plaintiff’s Fifteenth Claim Should Be Dismissed

After carefully considering the matter, the Court answers this question in the affirmative
for the reasons stated by Defendants in their memoranda of law. See, supra, Parts I.B.1. and
I.B.3. of this Decision and Order. To those reasons, the Court adds the following three points.

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First, because the Court has found that the Release is enforceable, the Court finds that
any allegations regarding Defendants’ respective conduct that occurred before the Release was
executed may not be considered because Plaintiff has waived those claims.7 Similarly, because
the Release did not preclude HMH and/or its employees (such as Defendant Hurley) from
discussing the contents of the Separation Agreement or from disparaging Plaintiff, the Court
need consider only whether Defendant Hurley’s alleged statements to third parties about Plaintiff
plausibly suggest “extreme and outrageous” conduct. With regard to this issue, the Court agrees
with Defendants that Defendant Hurley’s alleged statements to third parties, in and of
themselves, do not plausibly suggest “extreme and outrageous” conduct. (Dkt. No. 28, Attach. 2,
at 20 [Defs.’ Mem. of Law].)
Second, the Court agrees with Defendants that statements made in the context of an
EEOC proceeding are absolutely privileged and cannot give rise to liability. See Morales v. City
of New York, 14-CV-7253, 2016 WL 9651130, at *8 (S.D.N.Y. Aug. 9, 2016) (“[D]efendants
also correctly assert that their position statements to the NYSDHR and EEOC are entitled to
absolute immunity.”).
Third, and finally, because of Plaintiff’s pro se status,8 and despite her express
delineation of claims in her Amended Complaint, the Court liberally construes Paragraph 133 of
that Amended Complaint (Dkt. No. 25, at ¶ 133) and Paragraph 13 of her opposition

7

This finding is important because courts in this Circuit have found that allegations
of sexual harassment may, under certain circumstances, serve as the basis for a claim of
intentional infliction of emotional distress.
8

See Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474-75 (2d Cir. 2006)
(recognizing that, where plaintiffs proceed pro se, courts must construe their complaints with
“special solicitude” and interpret them to raise the “strongest [claims] that they suggest”).
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memorandum of law (Dkt. No. 30, ¶ 13)9 as also attempting to assert post-Release claims for
defamation and tortious interference with prospective economic advantage. See, e.g., Pasqualini
v. MortgageIT, Inc., 498 F. Supp. 2d 659, 664 (S.D.N.Y. 2007). Of course, where a district court
has dismissed all claims over which it has original jurisdiction, the court may decline to exercise
supplemental jurisdiction over remaining state law claims.10 (This is so even if the court has
already addressed the pleading insufficiency of other of the plaintiff’s state law claims.)11 The
decision is a discretionary one, and its justification lies in considerations of judicial economy,

9

See Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 n.1 (2d Cir. 1998) (“[W]e
deem Drake’s [pro se] complaint to include the facts contained in his memorandum of law filed
in response to Delta’s 1996 motion to dismiss.”); Gill v. Mooney, 824, F.2d 192, 195 (2d Cir.
1987) (considering assertion in affidavit submitted in opposition to defendant’s motion to
dismiss, in construing the allegations of pro se complaint).
10

28 U.S.C. § 1367(c)(3); United Mine Workers of Am. v. Gibbs, 383 U.S. 715, 726
(1966) (“[P]endent jurisdiction is a doctrine of discretion, not of plaintiff's right. Its justification
lies in considerations of judicial economy, convenience and fairness to litigants; if . . . not
present a federal court should hesitate to exercise jurisdiction over state claims.”); Klein & Co.
Futures, Inc. v. Bd. of Trade of City of New York, 464 F.3d 255, 262 (2d Cir. 2006) (“It is well
settled that where, as here, the federal claims are eliminated in the early stages of litigation,
courts should generally decline to exercise pendent jurisdiction over remaining state law
claims.”).
11

See Sussman-Automatic Corp. v. SPA World Corp., 15 F. Supp.3d 258, 273
(E.D.N.Y. 2014) (“[N]othing in the text of 28 U.S.C. § 1367(c)(3) prevents a Court from
exercising supplemental jurisdiction over some, but not all, of the relevant state law claims.”);
Tomaiolo v. Mallinoff, 281 F.3d 1, 5 (1st Cir. 2002) (“[W]e hold that the district court did not
abuse its discretion in exercising supplemental jurisdiction over some, but not all, of the state
law claims . . . .”); Wood v. Everhome Mort., 11-CV-3829, 2012 WL 13012634, at *5, n.5 (N.D.
Ga. Sept. 21, 2012) (“[S]upplemental jurisdiction is not all or nothing. The Court has the
discretion to exercise supplemental jurisdiction to reach the merits of some state law claims and
decline to reach the merits (and to remand) others.”); Hyman v. WM Fin. Servs., Inc., 06-CV4038, 2007 WL 1657392, at *5, n.3 (D. N.J. June 7, 2007) (“The Court is within its authority to
exercise supplemental jurisdiction over some, but not all, of Plaintiffs' state law claims.”).
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convenience and fairness to litigants.12 Here, after carefully considering the relevant factors (i.e.,
economy, convenience, fairness and comity), the Court finds that they weigh decidedly in favor
of declining to exercise supplemental jurisdiction over the two above-referenced state law
claims.
ACCORDINGLY, it is
ORDERED that Defendants’ motion to dismiss Plaintiff’s Amended Complaint for
failure to state a claim upon which relief may be granted (Dkt. No. 28) is GRANTED; and it is
further
ORDERED Plaintiff’s Amended Complaint (Dkt. No. 25) is DISMISSED with
prejudice EXCEPT for Plaintiff’s post-Release claims for defamation and tortious interference
with prospective economic advantage under state law, which are DISMISSED without
prejudice to filing in state court within the applicable limitations period; and it is further
ORDERED that the Clerk of Court shall issue a judgment for Defendants and close this
action.
Dated: January 10, 2018
Syracuse, New York
_________________________________
Hon. Glenn T. Suddaby
Chief U.S. District Judge

12

See United Mine Workers of Am., 383 U.S. at 726; see also Kolari v. New YorkPresbyterian Hosp., 455 F.3d 118, 122 (2d Cir.2006) (“Once a district court's discretion is
triggered under § 1367(c)(3), it balances the traditional 'values of judicial economy,
convenience, fairness, and comity,' in deciding whether to exercise jurisdiction.”) (quoting
Carnegie-Mellon Univ. v. Cohill, 484 U.S. 343, 350 [1988]); Jones v. Ford Motor Credit Co.,
358 F.3d 205, 214 (2d Cir.2004) (“[W]here at least one of the subsection 1367(c) factors is
applicable, a district court should not decline to exercise supplemental jurisdiction unless it also
determines that doing so would not promote the values [of] economy, convenience, fairness, and
comity.”).
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