MEMORANDUM-DECISION AND ORDER

LAWRENCE KAHN, District Judge

Presently before the Court are several motions. First is the defendant's Fed.R.Civ.P. 12(b) (6) motion to dismiss the second and third claims in the first amended complaint. Oral arguments on this motion were heard on March 21, 1997 in Albany, New York. Also before the Court is defendant's motion for summary judgment on all three causes of action and plaintiff's cross-motion for summary judgment on the first and third causes of action. Oral arguments on these motions were heard on August 15, 1997 in Albany, New York.

I. FACTS

Plaintiff Suzanne E. Harvender ("Harvender") commenced employment as a staff technician with the defendant Norton Company ("Norton") on April 8, 1991. In February of 1996, plaintiff was pregnant and was told by her physician that her due date was in late September of 1996. Plaintiff had informed Norton that she was pregnant and notified her supervisor of her due date. According to the plaintiff, Norton had requested that Harvender obtain a written communication from her physician indicating that she should be protected from chemical exposure. The handwritten note, signed by Harvender's physician Dr. Melody A. Bruce, M.D. dated February 16, 1996, reads as follows:

This is to certify that Suzanne Harvender has been under my care for pregnancy. Her expected date of delivery is 9/30/96. We have advised her that she should not be working [with] or exposed to chemicals. If there are any question, please call.

Plaintiff submits that Norton requested the note so that they could place her on a light duty program as they had done before when she had gone through an earlier pregnancy. Harvender argues that she never requested to be placed on such light duty. Plaintiff provides no evidence that suggests that she was in fact capable or that her physician approved of her continuing her job as a laboratory technician which exposes her to chemicals on a regular basis.

On February 20, 1996, Norton provided Harvender with a notice that they were placing her on twelve weeks of Family and Medical Leave pursuant to the Family and Medical Leave Act ("FMLA" or the "Act"). See 29 U.S.C. §§ 2601- 2654. The letter stated that Norton was unable to place her on light duty within the Research and Development department as she had requested due to restructuring and downsizing. The correspondence further noted that if she were unable to return to her job as of May 15, 1996, the end of her twelve week unpaid leave, Norton would consider her as having terminated her employment. Again, Harvender asserts that she never requested any leave of any kind in connection with her pregnancy and objected to being placed on unpaid leave pursuant to the FMLA. Plaintiff suffered a miscarriage in late March of 1996. Harvender returned to work at Norton on April 15, 1996 and remained employed by the defendant through April 15, 1997.

Plaintiff brings three causes of action. First, Harvender asserts that the defendant knowingly and intentionally violated the FMLA, specifically § 2615 which sets forth prohibited acts. Second, the plaintiff contends that the defendant acted with the intention of causing her severe emotional distress. Third, Harvender claims that by threatening her with termination, Norton breached the employment contract with plaintiff. The defendant's motion to dismiss the second and third claims in the amended complaint will be addressed first.

II. DISCUSSION A. Notion to Dismiss Standard

In reviewing the sufficiency of a complaint at the pleading stages, "the issue is not whether a plaintiff will ultimately prevail, but whether the claimant is entitled to offer evidence to support the claims." Scheuer v. Rhodes, 416 U.S. 232, 236 (1974). Where a motion to dismiss is made prior to any discovery or the filing of an answer, the court is averse to dismiss the complaint, regardless of whether the plaintiff is unlikely to prevail, unless the defendant can demonstrate that plaintiff is unable to prove facts which would entitle him to relief. Wade v. Johnson Controls, Inc., 693 F.2d 19, 22 (2d Cir. 1982); see Egelston v. State Univ. College, 535 F.2d 752, 754 (2d Cir. 1976). On a motion brought pursuant to Rule 22(b)(6) of the Federal Rules of Civil Procedure for failure to state a claim upon which relief can be granted, the allegations in the plaintiff's complaint are deemed to be true and will be liberally construed in the light most favorable to the plaintiff.Patton v. Dole, 806 F.2d 24, 30 (2d Cir. 1986). The Supreme Court has defined the scope of dismissals for failure to state a claim:

Rule 12(b)(6) authorizes a court to dismiss a claim on the basis of a dispositive issue of law. Hishon v. King Spalding, 467 U.S. 69, 73 (1984); Conley v. Gibson, 355 U.S. 41, 45-46 (1957). This procedure, operating on the assumption that the factual allegations in the complaint are true, streamlines litigation by dispensing with needless discovery and fact finding. Nothing in Rule 12(b)(6) confines its sweep to claims of law which are obviously insupportable. On the contrary, if as a matter of law "it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations," Hishon, supra, at 73, a claim must be dismissed, without regard to whether it is based on an outlandish legal theory or on a close but ultimately unavailing one.

In determining the sufficiency of plaintiff's claim for Rule 12(b)(6) purposes, the Court is limited to considering the factual allegations in the complaint, the documents annexed to the complaint as exhibits or relied upon by the plaintiff, and any matters to which judicial notice may be taken. Brass v. American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993). A complaint should not be dismissed unless it appears that no construction of the facts would permit the plaintiff to prevail. Hughes v. Rowe, 449 U.S. 5, 10 (1980); Bass v. Jackson, 790 F.2d 260, 262 (2d Cir. 1986).

1. Intentional Infliction of Emotional Distress

In the second cause of action, plaintiff contends that she suffered severe emotional distress because the defendant told her that her job would be terminated if she did not return from her FMLA leave even though her return date fell within her scheduled pregnancy. Harvender argues that her miscarriage was, at least in part, the result of the Norton's actions. Defendant argues that plaintiff has completely failed to establish the elements of intentional infliction of emotional distress and that dismissal is required.

Under New York law, a cause of action for intentional infliction of emotional distress has four elements: (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. Howell v. New York Post Co. Inc., 81 N.Y.2d 115, 121 (N.Y. 1993). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Id. at 122 (citations and internal quotations omitted). Thus, "[i]t has not been enough that the defendant acted with an intent which is tortious or even criminal, or that he has intended to inflict emotional distress, or even that his conduct has been characterized by `malice,' or a degree of aggravation which would entitle the plaintiff to punitive damages for another tort." Restatement (Second) of Torts § 46 cmt. d (1965). It is for the Court to determine, in the first instance, whether the conduct alleged may reasonably be regarded as so extreme and outrageous as to permit recovery. See Restatement (Second) of Torts, § 46 cmt. h (1965); Howell, 81 N.Y.2d at 122.

A review of New York precedent suggests how difficult a standard this is to meet. A number of cases have examined claims of intentional infliction of emotional distress in the employment environment and found them, even in connection with other acts of harassment or bad faith, not to be outrageous. See Sigmon v. Parker Chapin Flattau Klimpl, 901 F.Supp 667 (S.D.N.Y. 1995) (motion to dismiss granted against plaintiff who alleged intentional infliction of emotional distress for being fired due to her pregnancy); Murphy v. American Home Products Corp., 58 N.Y.2d 293 (N.Y. 1983) (allegations that plaintiff was transferred and demoted for reporting fraud, that he was coerced to leave by being told that he would never be allowed to advance, that he was later discharged after reporting other alleged in-house illegal conduct and ordered to leave immediately, and that he was forcibly and publicly escorted from the building by guards when he returned the next day to pick up his belongings fell "far short" of the standard for outrageous behavior); Belanoff v. Grayson, 471 N.Y.S.2d 91, 94 (N.Y.App.Div. 1984) (allegations that defendant issued a number of allegedly unjustified negative performance reviews, that he then abusively criticized plaintiff in person, and that after objecting to a superior, plaintiff's employment was terminated, did not satisfy requirement of outrageous conduct); Kovich v. Manhattan Life Ins. Comp., 640 F. Supp. 134 (S.D.N.Y. 1986) (allegations that plaintiff's employment was terminated while four less experienced and less knowledgeable underwriters were retained, that defendant had forged plaintiff's time records to falsely portray her as habitually late, and that defendant told plaintiff that she would be blackballed and unemployable in the insurance industry if she filed a complaint was not sufficiently outrageous conduct).

The only case found by the Court where similar actions were found to satisfy the conduct requirement is Bialik v. E.I. Dupont De NeMours Co., Inc., 539 N.Y.S.2d 605 (N.Y.Sup.Ct. 1988). The plaintiff in that case alleged that after he complained about unsafe working conditions, defendants brought an improper disciplinary action against him and later tried to blame him for an accident which caused the death of one woman. Id. at 606. These actions caused him severe emotional and physical problems due to stress. Id. Defendants subsequently terminated his employment, but reinstated the plaintiff after he filed a grievance. Id. Part of the reinstatement included a provision that he would be placed on disability, due to his stress-related problems. Id. However, after determining that his disability was permanent, and after allegedly treating him in a discriminatory fashion, defendants terminated his employment a second time. Id. The court found that, on the surface, the conduct alleged "would be difficult to classify as `extreme' or `outrageous,'" Id. at 607. However, it decided that "outrageousness" had to be determined on a "subjective" basis, i.e. that whether conduct was "extreme" should be analyzed in light of the plaintiff's mental condition prior to the conduct and the defendant's knowledge of that condition when performing the conduct. Id. at 608. The court then found that plaintiff's disability resulting from emotional distress suggested that plaintiff was "a `mental eggshell' ready to be cracked" by the time of his reinstatement, that defendants were aware of plaintiff's emotional disability and that their treatment of him may have intentionally aggravated that condition. Id. at 608. The court thus declined to dismiss the case on this "subjective" analysis.

Looking at the facts in a light most favorable to the plaintiff, they would be as follows. First, the defendant, upon learning of Harvender's pregnancy, required her to get a note from her physician specifically stating that she was not to work with chemicals. Second, this request was done under the pretense that Norton going to provide the plaintiff with light duty work during her pregnancy. Instead, the defendant used the note to place the plaintiff on immediate FMLA leave, further stating that if her condition did not change at the end of twelve weeks, she would lose her job. As a result of the stress of facing the loss of her job, plaintiff suffered a miscarriage.

The Court notes that in this case, the plaintiff has failed to allege sufficient facts to establish that the behavior was extreme and outrageous enough to withstand a motion to dismiss. While the acts of the defendant as alleged by plaintiff could be characterized as distasteful, the Court does not find that the behavior of the defendant could justifiably be characterized as "atrocious, and utterly intolerable in a civilized society." Howell, 81 N.Y.2d at 122. As a result, dismissal is appropriate because when considering the facts in the light most favorable to the plaintiff, no construction of the facts would allow the plaintiff to prevail.

2. Breach of Employment Contract

Norton moves to dismiss the third cause of action on the grounds that the plaintiff has failed to allege that an employment contract exists between Norton and Harvender and that the plaintiff has failed to allege facts to establish that her employment is anything other than "terminable at will." Plaintiff contends that her claim is that the defendant placed her on unpaid leave due to pregnancy.

"Generally, under New York law, `where an employment is for an indefinite term it is presumed to be a hiring at will which may be freely terminated by either party at any time for any reason or even for no reason.'" Yaris v. Arnot-Ogden Memorial Hospital, 891 F.2d 51, 52 (2d Cir. 1989) (quoting Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, (1983)). "That employment-at-will doctrine gives `[a]n employer . . . a nearly unfettered right to discharge an employee.'"Wanamker v. Columbian Rope, Co., 907 F. Supp. 522, 539 (N.D.N.Y 1995) (quoting Jones v. Dunkirk Radiator Corp., 21 F.3d 18, 21 (2d Cir. 1994)).

"The presumption of at-will employment may be rebutted, however, by proof that an employer expressly agreed to limit its right to discharge an employee. Yaris, 891 F.2d at 52 (citingMurphy, 58 N.Y. 2d at 305). The New York State Court of Appeals set forth four elements that a plaintiff must demonstrate to establish a breach of an implied employment contract. Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 465 (1982). First, a plaintiff must demonstrate that he or she was induced to leave prior employment with the understanding that he or she would not be discharged. Id. Second, a plaintiff must demonstrate that this assurance appears in the employment agreement. Id. Third, the plaintiff must show that other offers of employment were rejected based on the assurance of continued employment. Id. Finally, the plaintiff must show that the employer's published employment guidelines or manuals limit discharge for just cause only. Id.

The Second Circuit has noted that "`any single act, phrase or other expression' is insufficient to demonstrate such a limitation." Yaris, 891 F.2d at 52 (quoting Weiner, 57 N.Y.2d at 467 (citation omitted)). "Rather, a court must look to the totality of the attendant circumstances to determine whether an employer agreed to terminate only for cause." Id.

The plaintiff has failed to allege specific facts that, even if assumed to be true, would allow recovery under a breach of employment contract theory. First, Harvender does not contend that she is anything other than an employee at will. Second, the plaintiff has not asserted facts which establish any of theWeiner factors; she was not induced to leave prior employment with the assurance that she would not be discharged without cause, no such assurance is present in her employment application, she did not reject other offers in reliance on the assurance, and finally, Harvender does not cite any portion of Norton's personnel handbook that provides that employees will be dismissed for just cause only. Thus, it is clear to the Court that no relief can be granted under any set of facts that could be proved consistent with the allegations on this claim and dismissal is therefore appropriate.

B. Summary Judgment Standard

Summary judgment must be granted when the pleadings, depositions, answers to interrogatories, admissions and affidavits show that there is no genuine issue as to any material fact, and that the moving party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Lang v. Retirement Living Pub. Co., 949 F.2d 576, 580 (2d Cir. 1991). The moving party carries the initial burden of demonstrating an absence of a genuine issue of material fact. Fed.R.Civ.P. 56; Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990). Facts, inferences therefrom, and ambiguities must be viewed in a light most favorable to the nonmovant.Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986); Project Release v. Prevost, 722 F.2d 960, 968 (2d Cir. 1983). A genuine issue is an issue that, if resolved in favor of the non-moving party, would permit a jury to return a verdict for that party. R.B. Ventures, Ltd. v. Shane, 112 F.3d 54, 57 (2d Cir. 1997) (citing Anderson, 477 U.S. at 248).

When the moving party has met the burden, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., 475 U.S. at 586. At that point, the non-moving party "must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56; Liberty Lobby Inc., 477 U.S. at 250; Matsushita Elec. Indus. Co., 475 U.S. at 587. To withstand a summary judgment motion, evidence must exist upon which a reasonable jury could return a verdict for the nonmovant.Liberty Lobby, Inc., 477 U.S. at 248-249; Matsushita Elec. Indus. Co., 475 U.S. at 587. Thus, summary judgment is proper where there is "little or no evidence . . . in support of the non-moving party's case." Gallo v. Prudential Residential Servs., 22 F.3d 1219, 1223-1224 (2d Cir. 1994) (citations omitted).

1. The Family and Medical Leave Act

"Congress enacted the Family and Medical Leave Act on February 3, 1993, in response to major demographic changes that have impaired the ability of families to meet the care-taking needs of young children, ill family members and elderly parents." Johnson v. Primerica, 1996 WL 34148 at (S.D.N.Y. Jan. 30, 1996). "The FMLA was designed to provide a security net for families by setting a minimum employment standard for unpaid leave that is required on the basis of medical necessity while balancing the legitimate needs of employers." Id. (citing 29 U.S.C. § 2601(b) and S. Rep. No. 3, 103rd Cong., 1st Sess. 3-5 (1993), reprinted in 1993 U.S.C.C.A.N. 3, 5-7).

In pertinent part, the FMLA provides that

an eligible employee shall be entitled to a total of 12 workweeks of leave during any 12-month period for . . .

(B) . . . the birth of a son or daughter to the employee and in order to care for such son or daughter . . . [or]

(C) Because of a serious health condition that makes the employee unable to perform the functions of the position of such employee.

The FMLA provides that it "shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise, any right provided under this subchapter." 29 U.S.C. § 2615(a)(1). The rights established by the FMLA include the right to 12 weeks of unpaid leave if qualified, the right to return to the position of employment held before leave, and the protection of benefits accrued prior to the leave. 29 U.S.C. § 2612 and 2614. Defendant asserts, and the Court agrees, that there is no right under the FMLA to bring an action against an employer for placing an eligible employee on leave.

As discussed, an employee can seek leave "[b]ecause of a serious health condition that makes the employee unable to perform the functions of the position of such employee." Congress has specified:

(a) For purposes of FMLA, `serious health condition' entitling an employee to FMLA leave means an illness, injury, impairment, or physical or mental condition that involves:

. . .

(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:

. . .

(ii) Any period of incapacity due to pregnancy, or for prenatal care.

29 C.F.R. § 825.114.

Norton received a notice from the plaintiff's physician, a health care provider under the Act, which stated that due to her pregnancy, Harvender "should not be working [with] or exposed to chemicals." Congress has specified:

An employee is `unable to perform the functions of the position' where the health care provider finds that the employee is unable to work at all or is unable to perform any one of the essential functions of the employees position within the meaning of the American's with Disabilities Act (ADA) 42 U.S.C. 12101 et seq and the regulations at 29 C.F.R. 1630.2(n).

29 C.F.R. § 825.115. One of the essential functions of a laboratory assistant is to work with and, as a result, be exposed to chemicals. This fact is indisputable.

The plaintiff's argument that she did not request to be placed on FMLA leave is irrelevant. Nowhere in the Act does it provide that FMLA leave must be granted only when the employee wishes it to be granted. On the contrary, the FMLA only provides that leave must be given when certain conditions are present. In the instant case, Norton was informed that Harvender was pregnant, patently a "serious health condition" under the Act, and that as a result, she could not work with or be exposed to chemicals. Norton was under no obligation under the FMLA to provide alternative employment within the company to accommodate Harvender as it had been able to do in the past. Rather, Norton was faced with evidence that Harvender could not perform an essential element of her job. Under the Act, Norton was required to provide her with twelve weeks of leave and was free to characterize it as FMLA leave. Norton provided the leave and was not obligated to provide anything else under the Act.

Furthermore, the defendant's written policy is of no consequence to this cause of action. The Norton handbook provides: "In general, a Family and Medial Leave may begin 30 days after submission and approval of a written leave request." Harvender asserts that this language requires a request before leave can be designated as FMLA leave. The Court does not agree. As discussed above, the Act does not require a request by an employee in order for that employee to be placed on FMLA leave. Rather, the Act only requires that such leave be granted when certain conditions are present.

In the instant case, the conditions were in fact present. Plaintiff is careful to note several times that she did not want to go on leave. However, Norton was confronted with a medical opinion that Harvender could not perform her job. Harvender does not assert that she approached Norton with the argument nor the evidence that she was in fact willing and able to perform all of the elements of her position. While it may be true that Harvender wished to continue working as a laboratory technician, the fact remains that she could not perform an essential element of that job and therefore could not perform the job satisfactorily. In short, the plaintiff's medical condition prevented her from doing her job. As a result, with the evidence before it, Norton was permitted to characterize Harvender's time away from her job as FMLA leave.

The Court finds that the plaintiff has failed to "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56. As stated earlier, in order to survive a motion for summary judgment, evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Liberty Lobby, Inc., 477 U.S. at 248-249;Matsushita Elec. Indus, Co., 475 U.S. at 587. No such evidence has been presented by the plaintiff. As a result, summary judgment for the defendant is appropriate.

Accordingly, it is

ORDERED that defendant's motion to dismiss the second cause of action for intentional infliction of emotional distress is GRANTED; and it is further

ORDERED that defendant's motion to dismiss the third cause of action for breach of employment contract is GRANTED; and it is further

ORDERED that the defendant's motion for summary judgment on the second and third causes of action is DENIED as moot; and it is further

ORDERED that the defendant's motion for summary judgment on the first cause of action alleging a violation of the Family and Medical Leave Act is GRANTED; and it is further

ORDERED that the plaintiff's motion for summary judgment on the first and third causes of action is DENIED; and it is further

ORDERED that the Clerk serve a copy of this order on all parties by regular mail.

IT IS SO ORDERED.