Opinion
06 Civ. 0134 (DAB).
August 8, 2006
MEMORANDUM ORDER
Plaintiffs Joanne Hart, Traci Holt, Maria Rubashkina, Jyoti Ruta, Katherine Smith and Kathleen Treglia (collectively "Plaintiffs"), bring this proposed class action, seeking redress from alleged employment discrimination and retaliation by various Defendants in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206(d), New York Labor Law §§ 190 et seq., the New York State Human Rights Law, N.Y. Executive Law §§ 290 et seq., New York City Human Rights Law, and New York City Administrative Code §§ 8-101 et seq. Defendants Dresdner Kleinwort Wasserstein Securities LLC and Dresdner Kleinwort Wasserstein, LLC (collectively "Defendants") move to dismiss the Complaint pursuant to Fed.R.Civ.P. 12(b) (6), and to strike scandalous material from the Complaint, pursuant to Rule 12(f). For the following reasons, Defendants' motion to dismiss is DENIED in part and GRANTED in part, and Defendants' motion to strike certain material is DENIED.
The other Defendants named in the instant lawsuit do not join these Defendants in their motion to dismiss, and have filed Answers to the Complaint.
I. BACKGROUND
Unless otherwise indicated, the following facts are taken from the Complaint; only those facts necessary to resolve the instant motion are included here.
A. Parties
Plaintiffs are all female executives employed by various subsidiaries of parent company Dresdner Bank (collectively "DrKW" or "Company"), who are seeking redress on behalf of themselves and all other similarly situated former and current female employees.
Plaintiff Joanne Hart is in the Capital Markets Division and is a Director of Investor Relations in the International Equities Sales Group in the New York Office of DrKW; she has been employed by the Company since 1994. (Complaint ¶ 18.)
Plaintiff Traci Holt is in the Capital Markets Division and she is a Vice President in the Structured Finance Group in the New York Office of DrKW; she has been employed by DrKW since 2001. (Complaint ¶ 19.)
Plaintiff Maria Rubashkina is in the Global Business Services Division and is a Vice President in the Corporate Communications Department in the New York office of DrKW; she has been employed by the Company or a predecessor entity since 2000. (Complaint ¶ 20.)
Plaintiff Jyoti Ruta is in the Capital Markets Division and is a Director in the Structured Finance Group in the New York office of DrKW; she has been employed by the Company or a predecessor entity since 1994, except for between 1999 and 2001. (Complaint ¶ 21.)
Plaintiff Katherine Smith, who resides in London, England, is currently in the Capital Markets Division, and is a Director in the Equity Sales Trading Group in the London office of DrKW; she has been employed by the Company or a predecessor entity since 1996. (Complaint ¶ 22.) Smith began her career at DrKW in the New York office and remained there through August 2002, when DrKW transferred her to the company's London office. (Complaint ¶ 195.) Smith reports to one manager in New York and to one manager in London. (Complaint ¶ 196.) When Smith moved overseas, she intended the transfer to London to be temporary: the work permit authorizing her to work in the United Kingdom expires on August 27, 2007. (Smith Aff. ¶ 3.) Since moving, Smith's title and duties have remained the same, and she has maintained North American clients, including clients in New York. (Complaint ¶ 196; Smith Aff. ¶ 5.) Since moving, Smith has returned to New York approximately four weeks per year for business. (Smith Aff. ¶ 5.) Smith received her bonus payment for 2002 in spring of 2003, pursuant to company practice. (Complaint ¶ 196; Smith Aff. ¶ 6.)
Plaintiff Kathleen Treglia is in the Capital Markets Division and she is a vice president in the Fixed Income Group at the New York office of DrKW; she has been employed by the Company or a predecessor since 1995. (Complaint ¶ 23.)
The Defendants named in the lawsuit include several divisions of Dresdner Kleinwort Wasserstein and a dozen individual Defendants. According to the Complaint, Dresdner Kleinwort Wasserstein, LLC ("DrKW LLC") is a subsidiary of Dresdner Bank, and is a Delaware limited liability company with a principal place of business in New York, New York. (Complaint ¶ 27.) Defendant Dresdner Kleinwort Wasserstein Securities LLC ("DrKW Securities") is the U.S. investment bank for its parent company, Defendant Dresdner Bank, and is a Delaware limited liability company with a principal place of business in New York City. (Complaint ¶ 24.)
B. Facts
Plaintiffs allege there is a "glass ceiling" at DrKW, which has prevented them from receiving equal opportunities for advancement in the form of denial of promotions, compensation commensurate with male employees, and equality with respect to the terms and conditions of their employment. (Complaint ¶ 2.) Using statistical analysis, Plaintiffs allege in their Complaint the disparity between men and women in senior level positions at DrKW. (Complaint ¶¶ 3-7.) Plaintiffs also allege that they are treated with hostility and denied equal terms and conditions of employment at DrKW, and that all written and unwritten policies and practices concerning assignments, evaluations, compensation, and promotion are not applied uniformly or fairly, and that Plaintiffs are unlawfully subject to a pervasive pattern of ongoing and continuing disparate treatment. (Complaint ¶¶ 8-9.) Plaintiffs also allege that DrKW discriminates against Plaintiffs by advancing male employees more quickly into preferred departments and to higher levels than female employees, by denying female employees equal job assignments, promotions and compensation, and by retaliating against female employees who oppose these discriminatory practices. (Complaint ¶ 10.)
In their Complaint, Plaintiffs allege a "culture of discrimination" that permeates DrKW offices, and they include examples of certain remarks and incidents that they allege is evidence of this culture. (See Complaint ¶¶ 55-75.) Specifically, Plaintiffs state the following in their Complaint:
• Although we live in 2006, the "glass ceiling" is alive and well at this German investment bank where women are treated as second class citizens with respect to all of the terms and conditions of their employment. This class action seeks to put an end to these intolerable and discriminatory practices. (Complaint, first sentence.)
• Ms. Treglia similarly observed her male colleagues' openly inappropriate and offensive behavior. For example, the salesmen on her desk have openly commented on how they chose their female junior hires based on appearance, stating that they wished to have "eye candy" in the office. Ms. Treglia has also heard her male peers on the desk recount their experiences at various strip clubs, apparently a favorite haunt of DrKW's male employees. (Complaint ¶ 73.)
• Ms. Rubashinka was similarly told by a female DrKW employee that the receptionists in the London Graphics, Presentation and Printing department are selected based on their appearance. Ms. Rubashkina is also aware of a male Managing Director in the Corporate Finance and Origination department who routinely brought prostitutes to the office during the lunch hour. (Complaint ¶ 74.)
• Moreover, DrKW condones intimate relationships between its top male executives and their female subordinates, regardless of the circumstances. As just one example, Leonard Fischer, the former CEO of Defendant Dresdner Kleinwort Wasserstein and a married man, had an open affair with his personal assistant, with who he ultimately had an illegitimate child. (Complaint ¶ 75.)
• [W]hen Mr. Pickering assumed the position of Department Head of Corporate and External Affairs, he lacked the correct immigration visa and was working illegally as part of a visa-waiver program. (Complaint ¶ 143.)
Defendants move, pursuant to Rule 12(b) (6), to dismiss the New York Labor Law claim, arguing that it does not protect Plaintiffs; they move to dismiss all of Plaintiff Katherine Smith's claims, because she lives in England; they move to dismiss all claims against Dresdner Kleinwort Wasserstein, LLC, because the company was never Plaintiffs' employer; and Defendants move, pursuant to Rule 12(f), to strike certain portions of Plaintiffs' Complaint.
II. DISCUSSION
A. Motion to Dismiss
When deciding a motion to dismiss under Fed.R.Civ.P. 12(b)(6), the Court must read the complaint generously, accepting as true the factual allegations in the complaint and drawing all inferences in favor of the pleader. Bolt Elec. v. City of New York, 53 F.3d 465, 469 (2d Cir. 1995); Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). The Court will grant such a motion only if, after viewing plaintiff's allegations in a most favorable light, "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S. Ct. 99, 2 L. Ed. 2d 80 (1957); Walker v. City of New York, 974 F.2d 293, 298 (2d Cir. 1992).
While a court considering a Rule 12(b) (6) motion to dismiss for failure to state a claim is limited to the facts stated in the complaint, the complaint includes any written instrument attached as an exhibit and any statements or documents incorporated by reference into the complaint. See Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994); Rombach v. Chang, 355 F.3d 164, 169 (2d Cir. 2004). Courts may also consider "documents either in plaintiff's possession or of which plaintiff had knowledge and relied on in bringing suit." Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993).
B. Dismissal of New York Labor Law Claims
Defendants move to dismiss all of Plaintiffs' claims under the New York Labor Law on the ground that all of the Plaintiffs are directors or vice presidents, and as such, are not covered under the law. (Defs.' Mem. Law at 19.) Plaintiffs argue that executives are covered under § 194 of the New York Labor Law, which by its terms does not exclude executive-level employees. (Pls' Mem. Law at 23.)
The question of whether executives are covered under the New York Labor Law is far from settled in New York. Plaintiffs bring their labor law claims under Article 6 of N.Y. Labor Law § 194, which states in pertinent part:
No employee shall be paid a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar working conditions . . .
Under the definitions section of the statute in Article 6, "employee" is defined as meaning "any person employed for hire by an employer in any employment." N.Y. Labor Law § 190(2). The section goes on to define "manual worker," "railroad worker," and "commission salesman," in subsections four, five, and six, and then defines "clerical and other worker," in subsection seven as including "all employees not included in subdivisions four, five and six of this section, except any person employed in a bona fide executive, administrative or professional capacity whose earnings are in excess of six hundred dollars a week." N.Y. Labor Law § 190(7).
All of the Plaintiffs in the instant case are admittedly executives making more than $600 per week. Courts in New York are divided as to whether executives are covered under Article 6. Defendants point out that New York's highest court stated inGottlieb v. Kenneth D. Laub Company that executives are barred from relief. 82 N.Y.2d 457, 461 (N.Y. 1993). The Gottlieb case addressed the question of whether a plaintiff was entitled to attorney's fees under N.Y. Labor Law § 198(1-a) when the plaintiff did not bring a claim for a substantive violation of the Labor Law. The Court of Appeals in Gottlieb stated in dicta, and without any explanation, that individuals employed in an "executive, managerial or administrative capacity" are limited to recovery under Labor Law § 191 by the statute's "definitional exclusions." Id.
When confronted with the same question as here, the district court in Miteva v. Third Point Mgmt Co., 323 F. Supp. 2d 573 (S.D.N.Y. 2004), decided after Gottlieb, analyzed the labor law in question and concluded that the statute does apply to executives. The Miteva court noted that most courts beforeGottlieb interpreted the definition of "employee" broadly to include executives and professionals unless explicitly excluded. Describing the language in Gottlieb as "ambiguous" and "perhaps unintended," the Miteva court found:
It would be illogical to suppose that the legislature intended to deny that category of persons employed in the workforce the protections of that prohibition, and thereby give employers a license to discriminate in pay on sexual grounds, by categorically excluding executives and professionals from the definitions of employees contained in another provision of the statute that is apparently designed for an entirely different purpose.323 F. Supp. 2d 573, 581.
The New York labor law is analyzed in the same manner as claims under the federal Equal Pay Act (EPA), 29 U.S.C. § 206, which does not exclude executives. See, e.g., Gibson v. Jacob K. Javits Convention Ctr., No. 95 Civ. 9728, 1998 U.S. Dist. LEXIS 3717, *5 (S.D.N.Y. Mar. 23, 1998). Based on this Court's own analysis of the statute and case law, this Court finds the analysis and reasoning of the Miteva court is the better analysis and thus that a broad interpretation of the definition of employee in the New York statute is appropriate when addressing a discrimination claim, and that the labor law applies to the instant Plaintiffs. Accordingly, Plaintiffs may pursue their state labor law claim against Defendants. Defendants' motion to dismiss this claim is DENIED.
C. Dismissal of Katherine Smith's Claims
Defendants move to dismiss the claims of Plaintiff Katherine Smith, and move to strike references to her from any refiled Complaint. (Defs.' Notice of Motion at 2; Defs' Mem. Law at 13.) Defendants argue that Smith is a U.S. citizen residing and working in London, England, and that none of the statutes Plaintiffs allege Defendants violated in the Complaint are applicable to her. (Defs.' Mem. Law at 13.) Plaintiffs argue that Smith has sufficient ties to New York to justify her claims under the EPA, N.Y. Labor Law, NYSHRL and the NYCHRL. (Pls' Mem. Law at 12.)
1. Federal Equal Pay Act
Defendants argue that the plain language of the Fair Labor Standards Act, of which the EPA is a part, precludes Plaintiff Smith's claims, because she has lived in England since August 2002, and any potential claims from when she worked in New York City before moving to England are barred by the statute of limitations for EPA claims, which is three years for willful violations. (Defs.' Mem. Law at 13-14.) Plaintiffs argue that Smith worked in New York for the first half of 2002, and did not receive her 2002 bonus until spring of 2003, and this payment is within the three-year statute of limitations for EPA claims. (Pls.' Mem. Law at 12.) Plaintiffs also argue Smith has a claim under the EPA for the time that she performed work in the United States after moving to London, which was, on average, four weeks a year. (Pls.' Mem. Law at 12-13.) Finally, Plaintiffs argue that the policy reasons behind the foreign application exception of § 213(f) are not implicated here, because the instant case is one for discrimination, not one demanding wage and hour minimums. (Pls.' Mem. Law at 13.)
As a preliminary matter, the Court finds that Plaintiff Smith's claims are not barred by the EPA's statute of limitations for willful violations, based on the fact that she was paid an allegedly discriminatory bonus in 2003 for work performed in 2002. Defendants argue that because Smith received her bonus from her employer in England, allowing her to use such payment to assert a claim in the United States for work performed the prior year would burden domestic and foreign companies. (Defs. Reply Mem. Law at 5.) According to the Complaint, Plaintiff was compensated unfairly because of her sex for work performed in the United States, before her employer asked her to move to England. Defendants would have the Court find that a company may discriminate freely and then transfer the victim of the discrimination out of reach of the law. Equity demands that the Court not penalize Plaintiff, who moved to a foreign country at her employer's request before she was paid her deferred bonus. Accordingly, Plaintiff's claim is within the statute of limitation for willful violations.
The Court now turns to the question of whether Smith, a U.S. citizen who has been working in London since 2002, with sporadic business trips back to New York City, may bring a valid EPA claim. Statutes that do not state otherwise are not presumed to apply outside of the United States. See United States v. Yousef, 327 F.3d 56, 86 (2d Cir. 2003); EEOC v. Arabian Am. Oil Co., 499 U.S. 244, 248 (1991) ("It is a longstanding principle of American law that legislation of Congress, unless a contrary intent appears, is meant to apply only within the territorial jurisdiction of the United States.") (citation and internal quotation marks omitted). However, this presumption against extraterritorial application of jurisdiction "can be overcome when Congress clearly expresses its intent to do so." Yousef, 327 F.3d 56, 86 (2d Cir. 2003) (citing cases).
Title 29 U.S.C. § 206(d) (1), entitled, "Prohibition of sex discrimination," states in pertinent part:
No employer having employees subject to any provisions of this section shall discriminate, within any establishment in which such employees are employed, between employees on the basis of sex by paying wages to employees in such establishment at a rate less than the rate at which he pays wages to employees of the opposite sex in such establishment for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions . . .
Unlike Title VII, the Americans with Disabilities Act ("ADA"), and the Age Discrimination in Employment Act ("ADEA"), which Congress amended to ensure extraterritorial application, Congress specifically stated that the FLSA was not to be applied in foreign countries when it amended it in 1957. Section 213(f) states that 28 U.S.C. § 206 "shall not apply with respect to any employee whose services during the workweek are performed in a workplace within a foreign country." Congress amended the Act "so that section 213(f) provided an exemption for work performed in a foreign workplace." Cruz v. Chesapeake Shipping, Inc., 932 F.2d 218, 226 (3d Cir. 1991). In doing so, "Congress noted that the Act was obviously `designed to apply to a United States economy, [and its application] to overseas areas is usually inconsistent with local conditions of employment . . . and is contrary to the best interest of the United States and the foreign areas.'" Id. (quoting Senate Rep. No. 987, reprinted in 1957 U.S. Code Cong. Admin. News 1756-57). Given Congress's clear intent not to apply the act abroad, there can be little question that the presumption against extraterritorial application of statutes applies.
See Torrico v. International Business Machine Corp. I, 213 F. Supp. 2d 390, 396-400 (S.D.N.Y. 2002) (explaining how Congress amended the three statutes specifically to apply to certain actions by U.S. employers that affect employees outside of the United States).
Plaintiffs are correct that the discrimination section of the EPA is analogous to other federal discrimination statutes, and that the exception to EPA's application extraterritorially is more appropriate in regard to minimum wage and hour violations. However, this logic cannot circumvent the plain language of § 213(f), which explicitly states that it does not apply extraterritorially.
Accordingly, Defendants' motion to dismiss Smith's EPA claims is GRANTED in part and DENIED in part; Smith may only bring EPA claims for her bonus payment in 2003 for work performed in the United States prior to her move to England.
2. New York Labor Law
Defendants also argue that Smith's New York Labor Law claim must be dismissed for the same reason as her EPA claim — because the statute does not apply extraterritorially. (Defs.' Mem. Law at 14.) Plaintiffs make the same arguments here as they did under the EPA, and further argue that Smith alleges a number of intra-state actions and connections to New York that warrant coverage under New York law. (Pls.' Mem. Law at 16.) Specifically, Plaintiffs argue that one of Smith's two supervisors remained in New York; Smith was told that her duties and reporting lines would not change upon her move to London; Smith worked in New York approximately four weeks a year; she continued to service North American clients, many of whom were in New York; and Smith and her employer both believed her assignment in London was temporary. (Pls.' Mem. Law at 16.)
Unlike the federal EPA, which includes a specific exemption against the law's extraterritorial application, the New York EPA is silent as to its application abroad. However, as with federal statutes, state laws that are silent on the subject of extraterritorial application generally are presumed not to apply to foreign jurisdictions.
In analyzing a section of the New York Labor Law pertaining to attorney's fees, and finding that the New York Labor Law did not apply extraterritorially, the court in Hammell v. Banque Paribas, said that the state statute "contains no clear statement of intended extraterratorial effect. . . . Nothing in the statute suggests that the legislators intended to give persons who were employed outside New York the right to come to New York to sue their employers . . ." No. 90 Civ. 4799, 1993 U.S. Dist. LEXIS 14755, *5 (S.D.N.Y. Oct. 19, 1993). Given the lack of any clear intent to apply the New York law extraterritorially, and given that the New York labor law generally is analyzed under the same rubric as the federal EPA (see Howard, 2003 U.S. Dist. LEXIS 9998, at *9 n. 10; Gibson, 1998 U.S. Dist. LEXIS 3717, *5), the Court finds that for the same reasons as explained under the EPA, Plaintiff may not pursue her labor law claims overseas.
Because the statute of limitations under the New York EPA is six years, however, Smith may bring state EPA claims for the relevant period of time prior to her move to London. Accordingly, Defendants' motion to dismiss Smith's New York EPA claims is GRANTED in part and DENIED in part.
3. New York State Human Rights Law
Defendants also argue that Smith's claim under the New York State Human Rights Law must be dismissed because the law does not apply to a person living and working in England, and because the statute of limitations is three years, Smith is precluded from pursuing a claim from before she moved. (Defs.' Mem. Law at 15, 17.) Plaintiffs argue that the NYSHRL applies extraterritorially, given that one of Smith's two supervisors is based in New York, and decisions about Smith's pay, bonuses, and promotions, are made in part in New York. (Pls.' Mem. Law at 18-19.)
Unlike the New York Labor Law, the New York Executive Law, which is also known as the Human Rights Law, has an explicit provision regarding its extraterritorial application:
The provisions of this article shall apply as hereinafter provided to an act committed outside this state against a resident of this state or against a corporation organized under the laws of this state or authorized to do business in this state, if such act would constitute an unlawful discriminatory practice if committed within this state." N.Y.C.L.S. Exec § 298-a(1). Courts have interpreted this provision to apply to an act of discrimination committed outside of the state against a state resident, as well as to "a discriminatory act [that] was committed in New York.Torrico I, 213 F. Supp 390, 407 (quoting Iwankow v. Mobil Corp., 150 A.D.2d 272, 541 N.Y.S.2d 428, 429 (1st Dep't 1989)). "Whether an employee who is not a New York resident falls within the scope of the NYHRL's protection depends not on the place of employment . . . but rather on where the alleged acts of discrimination took place." Torrico II, 213 F. Supp 390, 399;see also Rice v. Scudder Kemper Invs., Inc., No. 01 Civ. 7078, 2003 U.S. Dist. LEXIS 14239, at *14-15 (S.D.N.Y. Aug. 13, 2003) (stating that non-resident plaintiff was required to show that he was discriminated against in New York to state a claim under the NYHRL); Beckett v. Prudential Ins. Co. of Am., 893 F. Supp. 234, 238 (S.D.N.Y. 1995) ("NYHRL does not provide a cause of action to a New York resident for discriminatory acts committed outside of New York by a foreign corporation."). As discussed in Torrico, there is no New York authority to suggest that the impact of a discriminatory act must be felt within New York for the NYHRL to apply. Torrico II, 319 F. Supp.2d at 309, n. 5.
Plaintiffs do not indicate whether Plaintiff Smith is a "resident" of New York State, which would make her eligible for the law's extraterritorial application.
When Plaintiff Smith moved to London, her employer allegedly assured her that her duties would be the same, and her "reporting lines" would not change, implying that her connection to New York would remain the same. Further, the allegedly discriminatory decisions regarding Plaintiff's bonuses, salary, and promotions, were made partly in New York by one of two supervisors located in New York. Therefore, unlike cases that have found the NYHRL inapplicable extraterritorially because plaintiffs only alleged that the effects or impact of discriminatory acts were felt abroad, and they failed to allege discriminatory conduct that occurred in New York, Plaintiff Smith at this stage makes sufficient allegations about discriminatory decisions made within this state. Therefore, Plaintiff may proceed with her claim.
Accordingly, Defendants' motion to dismiss Smith's NYHRL claim is DENIED.
4. New York City Human Rights Law
Defendants argue for dismissal of Smith's claim under the New York City Human Rights Law for the same reasons as articulated under the New York State Human Right Law. (Defs.' Mem. Law at 18.) In light of conflicting authority regarding whether NYCHRL applies extraterritorially, Plaintiffs base their argument for its application here on policy reasons: that New York City has an interest in preventing discriminatory conduct within its borders, regardless of where the impact of such conduct is felt. (Pls.' Mem. Law at 22.)
The New York City Human Rights Law, which does not include an extraterritorial provision, states that it shall be an unlawful discriminatory practice for an employer "because of . . . gender . . . to discriminate against such person in compensation or in terms, conditions or privileges of employment." NYC Administrative Code § 8-107. The administrative code goes on to state that the statute's provisions,
shall be construed liberally for the accomplishment of the uniquely broad and remedial purposes thereof, regardless of whether federal or New York State civil and human rights laws, including those laws with provisions comparably-worded to provisions of this title, have been so construed.
NYC Administrative Code § 8-130.
Following the same reasoning for applying the New York State Human Rights Law, the court in Tebenhoff v. Electronic Data Systems Corp. found that the disability discrimination claims of a New Jersey plaintiff employee could proceed under the New York City Human Rights Law where he worked in New Jersey, but where the decision to fire him occurred in New York. No. 02 Civ. 2932, 2005 U.S. Dist LEXIS 29874, at *15 (S.D.N.Y. Nov. 23, 2005);see also Launer v. Buena Vista Winery, 916 F. Supp. 204, 214 (E.D.N.Y. 1996) (finding that despite the fact that plaintiff was a resident of New Jersey, the defendants were residents of California, and many of the discriminatory acts against plaintiff were made in California, the fact that certain acts occurred in New York City and plaintiff's actual firing occurred in New York City meant the case could proceed). The conclusions drawn in these cases differ from those drawn in other cases, where courts found that the determining factor for deciding whether the statute applied was whether the impact of a discrimination decision was felt within the five boroughs of New York City.See, e.g., Germano v. Cornell Univ., No. 03 Civ. 9766, 2005 U.S. Dist. LEXIS 17759, *12-17 (S.D.N.Y. Aug. 17, 2005) (granting defendants' motion to dismiss because defendants' adverse employment actions failed to impact plaintiff in New York);Lucas v. Pathfinder's Personnel, No. 01 Civ. 2252, 2002 U.S. Dist. LEXIS 8529, at *11 (S.D.N.Y. May 13, 2002) (finding that decision to terminate an employee in New York City was insufficient to maintain a NYCHRL claim where plaintiff lived and worked in Massachusetts).
Although the courts differ on whether the impact of a discriminatory action must be felt within the five boroughs, all the courts agree that the discriminatory acts must be made within the City, which the Court concludes occurred here. Especially in light of the legislature's preference for courts to interpret the New York City Human Rights Law expansively, the Court finds that for the same reasons as discussed in analyzing the state law claims, Plaintiff may pursue her city claim.
Accordingly, Defendants' motion to dismiss Plaintiff Smith's NYCHRL claim is DENIED.
D. Dismissal of Claims Against Dresdner Kleinwort Wasserstein, LLC
Defendants move to dismiss the Complaint as to DrKW, LLC because neither it, nor its successor-in-interest, has ever been Plaintiffs' "employer." (Defs.' Mem. Law at 22.) Defendants argue that Plaintiffs are employed by DrKW Securities, DrKW Ltd. (UK), DrKW Services, or non-party DrKW (Guernsey) Limited. (Defs.' Mem. Law at 23; Cappelli Aff. ¶ 3.) Plaintiffs argue, correctly, that whether DrKW LLC is an employer is a question of fact, to be answered after discovery is completed. Therefore, based on the Complaint, which is deemed to be true on a motion to dismiss, DrKW LLC shall remain a party in the case, and Defendants' motion to dismiss the claims against it is DENIED.
E. Motion to Strike
Defendants move to strike certain "scandalous, immaterial, and impertinent" allegations from Plaintiffs' Complaint. (Defs.' Mem. Law at 7.) Specifically, Defendants move to strike all unnecessary, inflammatory, scandalous, and irrelevant allegations in the first sentence of the Complaint, and in paragraphs 73, 74, 75, and 143 of the Complaint. (Defs.' Mem. Law at 7-11; Defs.' Notice of Motion at 2.) These paragraphs pertain to: a reference to the Defendant being a "German" investment bank (Complaint at 1); a reference to strip clubs being "apparently a favorite haunt of DrKW's male employees" (Complaint ¶ 73); a reference to one Plaintiff being aware of a managing director's practice of bringing prostitutes to the office during the lunch hour (Complaint ¶ 74); a reference to a married former CEO having an affair and a child with his personal assistant (Complaint ¶ 75); and a reference to a position filled by a person lacking the correct immigration visa who allegedly was working for the company illegally. (Complaint ¶ 143).
Fed.R.Civ.P. 12(f) permits the Court to "order stricken from any pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." "Motions to strike `are not favored and will not be granted unless it is clear that the allegations in question can have no possible bearing on the subject matter of the litigation.'" Crespo v. N.Y. City Transit Auth., No. 01 CV 0671, 2002 U.S. Dist. LEXIS 2977, *34-35, 2002 WL 398805, at *11 (E.D.N.Y. Jan. 7, 2002) (quoting Lennon v. Seaman, 63 F. Supp. 2d 428, 446 (S.D.N.Y. 1999)). Courts generally are "very reluctant to determine disputed or substantial issues of law on a motion to strike."California v. Atl. Richfield Co. (In re Methyl Tertiary Butyl Ether Prods. Liab. Litig.), No. M21-88, MDL 1358, 2005 U.S. Dist. LEXIS 12400, *5-6 (S.D.N.Y. June 24, 2005) (quoting Simon v. Manufacturers Hanover Trust, 849 F. Supp. 880, 882 (S.D.N.Y. 1994)); see also Lipsky v. Commonwealth United Corp., 551 F.2d 887, 893 (2d Cir. 1976) ("[C]courts should not tamper with the pleadings unless there is a strong reason for so doing."). To prevail on a motion to strike, a party must demonstrate that "(1) no evidence in support of the allegations would be admissible; (2) that the allegations have no bearing on the issues in the case; and (3) that to permit the allegations to stand would result in prejudice to the movant." Roe v. City of N.Y., 151 F. Supp. 2d 495, 510 (S.D.N.Y. 2001) (quoting Koch v. Dwyer, 2000 U.S. Dist. LEXIS 14181, *4, No. 98 Civ. 5519, 2000 WL 1458803, *1 (S.D.N.Y. Sept. 29, 2000)).
Defendants argue that the allegations are variously scandalous, impertinent, immaterial, "malicious `Rambo' tactics," and "an irresponsible ploy plainly designed to inflame opinion and prejudice the defendants." (Defs.' Mem. Law at 9, 11.) Defendants also argue that the assertions violate various sections of the New York Code of Professional Responsibility Disciplinary Rules. (Defs.' Mem. at 11.) Plaintiffs argue that three of the paragraphs in question are in a section of the Complaint entitled, "Culture of Discrimination," and that all of the challenged assertions "are pertinent to the issue of discriminatory intent and to establishing the basis for class treatment." (Pls.' Mem. Law at 5.)
Plaintiffs' discrimination allegations pertain to unequal pay, and not sexual harassment or a hostile work environment, claims that might make the disputed anecdotes more obviously relevant. However, it cannot be said that the disputed allegations have no bearing on the suit. Incidents of perceived sexism may be admissible to demonstrate a defendant's discriminatory intent, which is necessary to support Plaintiffs' sex discrimination claims. See Crespo, 2002 U.S. Dist. LEXIS 2977, *34-37 (holding that paragraphs in a complaint pertaining to dismissed harassment and hostile work environment claims should not be stricken because they were relevant to prove defendant's discriminatory intent); see also Eaton v. American Media Operations, 96 Civ. 6158, 1997 U.S. Dist. LEXIS 46, *15 (S.D.N.Y. Jan. 8, 1997) ("The incidents [plaintiff] alleges underlying her sexual harassment claim may be admissible to demonstrate defendants' discriminatory intent to support her sex discrimination claim."). It cannot be said that the allegations here have no bearing on the suit. For Plaintiffs to prevail on their discrimination theory, they will have to show discriminatory intent, and the theory that women were not as highly valued as men, as demonstrated by a "culture of discrimination," may successfully demonstrate this. As to the reference to "German investment bank" in the first paragraph, Defendants have not shown that this description is a "blatant appeal to prejudice."
Accordingly, the Court finds that because the allegations may be admissible, may have a bearing on the issues of the case, and do not unfairly prejudice the Defendants, they shall not be stricken. Furthermore, "[N]either a district court nor an appellate court should decide to strike a portion of the complaint — on the grounds that the material could not possibly be relevant — on the sterile field of the pleadings alone." See Sloup v. Loeffler, No. 05 Civ. 1766, 2006 U.S. Dist. LEXIS 16991, *8 (E.D.N.Y. Mar. 13, 2006) (quoting Lipsky, 551 F.2d 887, 893). Accordingly, the Court DENIES Defendants' motion to strike. certain allegations.
F. Refiled Complaint
Defendants also move for an Order directing Plaintiffs to withdraw the Complaint and refile it without reference to home addresses of any of the individual Defendants. (Defs.' Mem. Law at 12.) Defendants point to the United States District Court for the Southern District of New York, "Notice Regarding Privacy and Public Access to Electronic Civil and Criminal Case Files." This notice was written in compliance with the E-Government Act of 2002, which states that, "You should not include sensitive information in any document filed with the Court unless such inclusion is necessary and relevant to the case." A list of types of sensitive information includes "Home Addresses. If home addresses must be used, use only the City and State." Plaintiffs argue in their opposition that Defendants' home addresses are easily available on the Internet, and are not sensitive information. (Pls' Mem. Law at 11.)
Although Plaintiffs are correct that home address information is readily accessible on the Internet, and presumably in a hard copy phone book, the fact that personal information is widely available does not warrant publicizing Defendants' home addresses in a legal document. Plaintiffs shall refile their Complaint in accordance with the Notice Regarding Privacy and Public Access to Electronic Civil and Criminal Case Files for the United States District Court for the Southern District of New York. Furthermore, the print-outs from the Internet search service bearing Defendants' home addresses that are attached to Plaintiff's opposition to Defendants' motion to dismiss shall be removed and the document refiled as well.
III. CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss is DENIED in part and GRANTED in part: Defendants' motion to dismiss Plaintiffs' N.Y. Labor Law claims is DENIED; Defendants' motion to dismiss Plaintiff Smith's federal EPA claim is GRANTED, except for work performed in the United States prior to her move to England; Defendants' motion to dismiss Plaintiff Smith's N.Y. Labor Law claim is DENIED as to work performed before her move to England, but GRANTED for work performed after her move; Defendants' motion to dismiss Plaintiff Smiths' NYHRL and NYCHRL claims is DENIED; Defendants' motion to dismiss the Complaint as to DrKW, LLC is DENIED; Defendants' motion to strike certain allegations is DENIED; and Defendants' request that Plaintiffs refile their Complaint without reference to Defendants' home addresses is GRANTED. Defendants shall answer the Complaint within 45 days of the date of this Memorandum and Order.