Opinion
00 Civ. 6111 (LAK).
April 10, 2001
ORDER
Plaintiff Wendy Frank was employed by defendant Plaza Construction Corp. ("Plaza") from January 1998 until July 1, 1999. She has brought this action against Plaza, four of its individual executives, and Fisher Brothers Management Company ("FBMC"), erroneously sued herein as Fisher Brothers, for various employment-related grievances. All defendants have moved to dismiss the complaint for failure to state a claim upon which relief may be granted.
Although the motions are framed that broadly, Plaza in fact articulates no basis for dismissal of the first and second claims for relief against it.
The complaint contains the following claims for relief:
(1) Sexual harassment and gender discrimination against FBMC and Plaza pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-2;
(2) Sexual harassment and gender discrimination against all defendants under the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq.;
(3) Disability discrimination in violation of the Americans With Disabilities Act (the "ADA"), 42 U.S.C. § 12101, et seq., against all defendants;
(4) Intentional infliction of emotional distress against all defendants; and
(5) Breach of contract against Plaza.
The points raised by the moving defendants require no extended discussion.
1. The only alleged basis for any relief against FBMC is that it allegedly owns all of the shares of Plaza. That is patently insufficient. Nor has plaintiff alleged facts which, if true, would bring FBMC within the single employer rule. She has not even remotely approached satisfaction of the standard established in Cook v. Arrowsmith Shelburne, Inc., 69 F.3d 1235, 1240-41 (2d Cir. 1995); see also Parker v. Columbia Pictures Industries, 204 F.3d 326, 346 (2d Cir. 2000). Accordingly, the complaint is insufficient as against FBMC.
Defendants dispute even this allegation by affidavit, and plaintiff has offered no evidence to support her contention. The point therefore might be disposed of on summary judgment pursuant to Fed.R.Civ.P. 12(b). In view of the discussion in the text, however, there is no need to do so, and the Court does not consider the Rosenberg affidavit on these motions.
Plaintiff's affidavit in opposition to the motion to dismiss makes additional allegations in an effort to establish that FBMC and Plaza were a single employer. Most of the allegations are immaterial. The contention that plaintiff was paid by and enrolled in employee benefit plans of FBMC (Frank Aff. ¶¶ 14-17), however, raises sufficient question as to whether there was common control of the labor relations of both companies to warrant that the dismissal as to FBMC be with leave to replead.
2. In response to the motions, plaintiff has withdrawn the intentional infliction of emotional distress claim, so the fourth claim for relief is dismissed as well.
3. The ADA claim is based on the contentions that plaintiff is dyslexic, that her request for secretarial or clerical assistance were not filled, that she was asked to take minutes at staff meetings, and that her "non-disabled, male peers" were provided with secretarial assistance. (Cpt ¶¶ 53-62)
The ADA provides that "[n]o covered entity shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to job application procedures, . . . employee compensation, . . . and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a); see also 29 C.F.R. § 1630.4. While it appears likely that the gravamen of this grievance is gender discrimination, the complaint is broad enough to permit plaintiff to attempt to prove that she was treated differently on the basis of her alleged disability as well as her gender. Accordingly, the ADA claim against Plaza, her employer and therefore the "covered entity," see 42 U.S.C. § 12111(2), is sufficient. Plaintiff has withdrawn the ADA claim against the individual defendants, but even had she not, none of the defendants other than Plaza is a covered entity, so the ADA claim must be dismissed as against them, albeit in the case of FBMC with leave to replead.
4. The breach of contract claim rests on the assertion that plaintiff entered into a contract providing that she would not be terminated for, nor her advancement limited by, unlawful reasons. Plaintiff, however, alleges no express contract materially limiting the discretion of her employer to terminate her employment. Indeed, her affidavit makes clear that the contract claim rests on an alleged promise that she "would enjoy `lifetime employment' at Plaza" and on statements in a Plaza employee handbook. (Frank Aff. ¶¶ 24, 27 (second)) There is no basis, therefore, to conclude that she was anything but an employee at will. And while an employee at will may not be terminated in violation of the civil rights laws, the remedy for such action is under the appropriate statutes, not an action for breach of contract. E.g., Woodcock v. Montefiore Medical Center, 48 F. Supp.2d 231, 236 (E.D.N.Y. 1999); Graaf v. North Shore University Hospital, 1 F. Supp.2d 318, 324 (S.D.N Y 1998); Cucchi v. New York City Off-Track Betting Corp., 818 F. Supp. 647, 651 (S.D.N.Y. 1993); Narvarte v. Chase Manhattan Bank, N.A., No. 96 Civ. 8133 (JGK), 2000 WL 547031, at *12 (S.D.N.Y. May 4, 2000) (Francis, M.J.).
5. Plaintiff first was employed by Plaza from about 1995 until August 1996, when she was laid off before being rehired on January 1, 1998. (Frank Aff. ¶¶ 2-3; Cpt. ¶ 18) When she left the company in 1996, she signed a release that stated in relevant part that she "release[d] and discharge[d] Plaza . . ., [its] partners, officers, [and] employees . . . from any and all claims, actions causes of action, suits and demands whatsoever, known or unknown, asserted or unasserted, at law or at equity, in any and all forums which [plaintiff, her heirs, successors and assigns] have, had or may have including, but not limited to, any and all rights under . . . Title VII of the Civil Rights Act, the [ADA], any claim of breach of any express or implied contract, . . . whether based on federal, state or local law or judicial or administrative decision, and any and all claims arising out of terms or conditions of employment." Balber Aff. Ex. B ¶ 8. The individual defendants seek dismissal on the basis of that release.
The individual defendants' argument is frivolous. While an individual presumably could release claims that might accrue to her benefit in consequence of future events, any such intention should appear quite plainly. No such intention is plain here. Rather, the most logical reading of this release is that Frank released all claims which she had or might in the future have by reason of events to and including the date the release was signed. Even assuming arguendo that the release is susceptible also of the reading placed upon it by the individual defendants, it is ambiguous and its construction would raise a material issue of fact. The individual defendants therefore are not entitled to summary judgment dismissing plaintiff's claims against them as released.
6. The individual defendants seek dismissal as well of the New York State Human Rights Law claims against them on the ground that they are merely corporate employees lacking any interest in the employer or any power to do more than carry out decisions made by others, see Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542, 483 N.Y.S.2d 659, 660 (1984), and that they did not aid or abet the illegal discrimination, N.Y. Exec. L. § 296, subd. 6.
Certainly Steven Fisher is no mere corporate employee. He is the chairman of Plaza and a partner in its parent company, FBMC. According to the complaint, he repeatedly subjected plaintiff to sexual advances including allegedly unwelcome touching. There is no basis for dismissal as to him. The other individual defendants, however, are not similarly situated, either with respect to their roles in the company or their alleged behavior.
In sum, then, the motion of defendants Plaza to dismiss the complaint is granted to the extent that the fourth and fifth claims for relief are dismissed and otherwise denied. The motion of Steven Fisher to dismiss the complaint is granted to the extent that the third and fourth claims for relief are dismissed and otherwise denied. The motion of defendants FBMC, Hurlbert, Wood and Paese to dismiss the complaint for failure to state a claim upon which relief may be granted is granted in all respects. The dismissal as to FBMC is without prejudice to the filing, no later than 10 days after the date hereof, of an amended complaint against FBMC asserting against it the claims sought to be stated against it in the first, second and third claims for relief.
SO ORDERED.