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holding that employee's allegations that employer harassed, discriminated, demoted and retaliated against her were insufficient to state an IIED claim
Summary of this case from Ford v. Consolidated Edison Company of New York, Inc.Opinion
No. 04 Civ. 5963 (LTS)(DFE).
March 29, 2005
SANDRA D. FRELIX, P.C., By: Sandra D. Frelix, Esq., New York, NY., Attorney for Plaintiff.
PROSKAUER ROSE LLP, By: Aaron J. Schindel, Esq., Dawn M. Irizarry, Esq., New York, NY., Attorneys for Defendants United Parcel Service, William Seward, Bernard Collins and Michael Imondi.
MEMORANDUM OPINION AND ORDER
Plaintiff brings this action against United Parcel Service ("UPS"), William Seward ("Seward"), Bernard Collins ("Collins"), and Michael Imondi ("Imondi") (collectively "Defendants") alleging that Defendants have engaged in discriminatory employment practices based on the Plaintiff's gender, race, and disability, and have retaliated against Plaintiff, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C.A. § 2000e, the Americans with Disabilities Act ("ADA"), 42 U.S.C.A. § 12112, Section 1981 of the Civil Rights Act of 1866 ("Section 1981"), 42 U.S.C.A. § 1981, the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296 (McKinney 2003), and the New York City Human Rights Law ("NYCHRL"), N.Y.Charter Admin. Code § 8-107 (1996). Plaintiff also asserts a claim for intentional infliction of emotional distress.
The Court has jurisdiction of the federal claims pursuant to 28 U.S.C.A. §§ 1331 and 1343. The Court also has supplemental jurisdiction pursuant to 28 U.S.C.A. § 1367 over the state and local law claims. Defendants move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure for an order dismissing Plaintiff's claims against Defendants Collins and Imondi. For the following reasons, Defendants' motion to dismiss is granted in part and denied in part.
BACKGROUND
The following facts are taken from the Complaint, the allegations of which are taken as true for the purposes of ruling on Defendants' motion to dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. Smith v. AVSC Int'l, Inc., 148 F.Supp. 2d 302, 306-307 (S.D.N.Y. 2001) (citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993)).
Plaintiff makes the following allegations in her Complaint. Plaintiff, a black West Indian-American female, has been employed by Defendant UPS at its midtown Manhattan location for almost 15 years. (Compl. ¶ 14.) In 1991, she suffered a herniated disc and nerve damage due to an accident and was classified as permanently partially disabled by the New York State Workers' Compensation Board. (Id. ¶ 15.) During most of the relevant time period, Plaintiff was a National Accounts Manager for Business Development and Defendant Seward, a white male, was her direct supervisor. (Id. ¶¶ 17-19.)
According to Plaintiff, from February 2002 to March 2003, Seward harassed, discriminated, and retaliated against Plaintiff by accusing her of being a real estate broker on company time, forcing her to work late, forcing her to work long hours despite a doctor's note instructing Plaintiff to work only a few hours a day, and reducing her year-end stock award. (Id. ¶¶ 19-22, 25-27, 31.) Plaintiff made a complaint through the company's "1-800" employee hotline. (Id. ¶ 22.) Plaintiff also wrote a three-page memorandum to the Human Resources Department at corporate headquarters in Atlanta, Georgia, complaining about the harassment and discrimination she was allegedly experiencing. (Id. ¶ 28.)
In March 2003, Plaintiff had the building engineers enlarge her cubicle. (Id. ¶ 37.) According to Plaintiff, this action made Seward very angry. Shortly thereafter, Seward informed Plaintiff that she was demoted and should report to a lesser position the next day. (Id. ¶¶ 37-39.) On April 3, 2003, Plaintiff attended a meeting with Defendant Collins, a white male Regional Human Resources Manager, and Seward, during which Collins told her she had to choose one of four options: (i) accept a demotion, (ii) go on probation, (iii) remain in her position and transfer to another group manager, or (iv) voluntarily leave UPS. (Id. ¶¶ 18, 40.) Plaintiff refused all of the options. According to Plaintiff, Collins also told her that he did not see how she could be demoted in light of her strong volume and revenue numbers, yet he continued to badger her into accepting one of the options over the next several days. (Id. ¶¶ 34, 40.)
On April 11, 2003, Plaintiff was "officially informed" that she would be demoted to Retail Channel Supervisor. (Id. ¶ 44.) Thereafter she reported to Defendant Imondi, a white male. (Id. ¶¶ 47, 8.) Plaintiff alleges that Imondi harassed and discriminated against her in a number of ways including: requiring her to report her whereabouts at all times of the day, leaving voice mails and written notes when she stepped away from her desk, and demanding proof of where she had been when she was away from the office on field visits. Plaintiff further alleges that Imondi did not require similar reporting by "other supervisors who reported to him." (Id. ¶¶ 47, 48.)
On February 2, 2004, Plaintiff left work due to a work-related disability. Plaintiff supplied Defendants with a doctor's note, but was notified by letter, dated February 16, 2004, that her salary was suspended. The letter falsely claimed that Plaintiff had not communicated with Imondi or UPS's disability carrier regarding her decision to leave work, and that she had ignored the instructions of UPS's Medical Services Supervisor/Occupational Health Nurse. (Id. ¶ 49.)
DISCUSSION
Defendants raise three arguments in support of their motion to dismiss. First, Defendants argue that Collins and Imondi cannot be held liable under Title VII and the ADA because there is no cause of action against individuals under these laws. Next, Defendants argue that the claims against Collins and Imondi under Section 1981, NYSHRL and NYCHRL should be dismissed because the Complaint does not allege that they participated in adverse employment actions. Finally, Defendants argue that Plaintiff's allegations are insufficient to support a claim of intentional infliction of emotional distress against Collins and Imondi.
In considering a motion to dismiss a complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, the court must accept as true the allegations contained in the complaint and draw all reasonable inferences in the plaintiff's favor. Smith v. AVSC Int'l. Inc., 148 F. Supp. 2d 302, 306-307 (S.D.N.Y. 2001) (citing Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993)). The court must not dismiss the action unless "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief.'" Id. at 307 (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).
I. Title VII and ADA Claims Against Collins and Imondi
Title VII makes it unlawful "for an employer . . . to fail to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.A. § 2000e-2(a)(1) (West 2003). The ADA prohibits discrimination by covered employers against qualified disabled individuals. 42 U.S.C.A. § 12112(a).
In Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), the United States Court of Appeals for the Second Circuit found that Congress did not intend the definition of "employer" in Title VII to include individuals and thus held that "individual defendants with supervisory control over a plaintiff may not be held personally liable under Title VII." Id. at 1313. Since the ADA's definition of "employer" is similar to Title VII's definition, there also is no individual liability under the ADA.See Seres v. Liberty Chevrolet, Inc., No. 98 Civ. 5999 (RPP), 1999 WL 11779 (S.D.N.Y. 1999) (citing Mason v. Stallings, 82 F.3d 1007, 1009 (11th Cir. 1996)). Therefore, the Title VII and ADA claims against Defendants Collins and Imondi must be dismissed.
II. Section 1981, NYSHRL, and NYCHRL Claims
Section 1981 of the Civil Rights Act prohibits employment discrimination based on race by giving "all persons within the jurisdiction of the United States" the same employment rights and protections as those enjoyed by white citizens. 42 U.S.C.A. § 1981. Similarly, NYSHRL and NYCHRL prohibit any employer from discriminating against an individual because of "the age, race, . . . color, national origin, . . . sex, [or] disability, . . . of the individual in compensation or in terms, conditions or privileges of employment." N.Y. Exec. Law § 296(6); N.Y. Charter Admin. Code § 8-107. Under both NYSHRL and NYCHRL, persons are also prohibited from aiding or abetting discrimination forbidden by those laws.
Individuals may be held liable under Section 1981, NYSHRL and NYCHRL. See Smith, 148 F. Supp. 2d at 308. However, a plaintiff seeking to hold an individual personally liable under Section 1981 must demonstrate that the defendant was personally involved in the discrimination. Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000). Similarly, individual defendants may be held liable under NYSHRL and NYCHRL when the defendant has "actually participate[d] in the conduct giving rise to the discrimination claim." Tomka, 66 F.3d at 1317, see also Chapkines v. New York Univ., 2004 U.S. Dist. LEXIS 2990, at *14-16 (S.D.N.Y. Feb. 25, 2004). These statutes, like Title VII, permit recovery for damages suffered on account of discriminatory adverse employment actions or hostile work environments. See Lee v. New York State Dept. of Health, Nos. 98 Civ. 5712, 99 Civ. 4859 (RMB)(HBP), 2001 U.S. Dist. LEXIS 11287 (S.D.N.Y. March 21, 2001) (report and recommendation), adopted, 2001 U.S. Dist. LEXIS 11288 (S.D.N.Y. April 20, 2001). An adverse employment action is a "'materially adverse change in the terms and conditions of employment.'"Richardson v. New York State Dept. of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) (citations omitted). "It is clear that '[a] materially adverse change is one that "has an attendant negative result, a deprivation of a position or an opportunity.'"Lee, 2001 U.S. Dist. LEXIS 11287 at *35. "At the same time, however, "'not every unpleasant matter short of [discharge or demotion] creates a cause of action' for retaliatory discharge.'"Richardson 180 F.3d at 446 (citations omitted). Transfers unaccompanied by material diminutions in pay or status, or material changes in responsibility, have been held insufficient to constitute adverse employment actions, as have allegedly excessive employer oversight. See Lee, 2001 U.S. Dist. LEXIS 11287 at *37-38 and cases cited therein; see also Booker v. Fed. Reserve Bank of New York, Nos. 01 Civ. 2290, 01 Civ. 2291 (DC), 2003 WL 1213148 at *11 (S.D.N.Y. March 17, 2003) ("Typically, lateral transfers or shift changes without a loss of pay or other material changes in working conditions do not constitute an adverse employment action"). Monitoring of employee time and travel has also been held insufficient to constitute an adverse employment action. See Lee, 2001 U.S. Dist. LEXIS 11287 at *52.
A hostile work environment claim "will succeed only where the conduct at issue is so 'severe or pervasive' as to create an "'objectively' hostile or abusive work environment,' and where the victim 'subjectively perceive[s] the environment to be abusive.'" Richardson, 180 F.3d at 436 (quoting Harris v. Forklift Systems, 510 U.S. 17, 21-22 (1993)). Factors relevant to the determination as to "whether a given workplace is permeated with discrimination so 'severe or pervasive' as to support a Title VII claim . . . include (1) the frequency of the discriminatory conduct; (2) its severity; (3) whether the conduct was physically threatening or humiliating, or a 'mere offensive utterance;' (4) whether the conduct unreasonably interfered with plaintiff's work; and (5) what psychological harm, if any, resulted." Id. (citing, e.g., Harris, 510 U.S. at 23). "[T]ermination of employment, a demotion evidenced by decrease in wage or salary, less distinguished title, material loss of benefits, diminished responsibilities, or other indices unique to a particular situation" have, by contrast, been held sufficiently adverse.Chu v. City of New York, No. 99 Civ. 11523 (DLC), 2000 WL 1879851, at *4 (S.D.N.Y. Dec. 27, 2000) (citing Galabaya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)).
Here, Plaintiff alleges that Defendant Collins, UPS' Human Resources Director, stated that he did not see grounds for the demotion that Seward, Plaintiff's supervisor, had announced, but nonetheless pressured her to choose among demotion, probation, transfer to another group manager, and voluntary termination. (Compl. ¶¶ 40-41.) She further alleges that she was later demoted, but the complaint does not recite any involvement of Collins in the actual demotion. (See id. ¶ 44.) In Plaintiff's papers in opposition to this motion, she asserts that Collins had the authority to prevent the demotion and joined in Seward's discriminatory and retaliatory actions, but no such allegations appear in the complaint. For purposes of the instant motion, the Court considers only the allegations actually plead.
Plaintiff alleges that Defendant Imondi, who was her supervisor following the demotion, "required her to report to him her whereabouts at all times during the day, which he did not require of other supervisors who reported to him. If Plaintiff stepped away from her desk even for a few minutes, Defendant Imondi left her voicemails and affixed written notes on her computer and desk." Plaintiff further alleges that Imondi "interrogated" her following business trips, a practice he did not follow with "other supervisors," and that Imondi "committed other acts of harassment against Plaintiff" and "caused her to suffer severe emotional distress." (Id. ¶¶ 47-48.) Plaintiff also alleges that a letter issued to her in connection with a later suspension of her salary falsely represented that she had failed to communicate properly with Imondi, but the Complaint neither identifies the author of the letter nor alleges any personal involvement of Imondi in the salary suspension. (See id. ¶ 49.)
Plaintiff alleges that defendants' actions were retaliatory and based on her race, gender and disability. (Id. ¶¶ 45, 50-51.)
Defendants argue that Plaintiff's Section 1981 and state and local law discrimination claims against them should be dismissed because Plaintiff has failed to allege adverse employment actions and thus fail to state causes of action under the relevant statutes.
In Swierkiewicz v. Sorema N.A., 534 U.S. 506, 508 (2002), the Supreme Court of the United States held that a plaintiff need not plead facts establishing the elements of a prima facie case under the McDonnell Douglas burden shifting analysis to survive a motion to dismiss but, rather, is only required to plead facts sufficient to satisfy the notice pleading standard of Rule 8 of the Federal Rules of Civil Procedure. See Swierkiewicz, 534 U.S. at 512. Rule 8 requires, in pertinent part, that the pleader present "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). Thus, such a plaintiff must simply provide a short and plain statement of the claim and the grounds on which it rests. Id. at 512 (citing Conley v. Gibson, 355 U.S. 41, 47 (1957)).
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).
Although Swierkiewicz involved a Title VII claim, the holding is applicable to the Section 1981, NYSHRL and NYCHRL claims at issue here. Courts "commonly analyze the sufficiency of [claims under section 1981] in the same manner as Title VII claims, reaching the same result." Pagan v. New York State Div. of Parole, 98 Civ. 5840, 2002 WL 398682 at *5 (S.D.N.Y. Mar. 13, 2002). Similarly, NYSHRL and NYCHRL are also addressed in the same manner as Title VII claims. Tomka v. Seiler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995). Furthermore, the holding ofSwierkiewicz is applicable to the state and city law claims because it clarifies a rule of federal procedure. Procedural requirements in federal courts are governed by federal law, even when state and city substantive law claims are raised. See generally Hanna v. Plumer, 380 U.S. 460 (1965); see also Maalouf v. Salomon Smith Barney, Inc., No. 02 Civ. 4770(SAS), 2003 WL 1858153 at *3 n. 4 (S.D.N.Y. Apr. 10, 2003) ("although New York substantive law governs the claims in issue here, federal procedural law is applied").
In Swierkiewicz, the Court found that the employment discrimination complaint at issue easily satisfied the requirements of Rule 8 of the Federal Rules of Civil Procedure by "detail[ing] the events leading to [the plaintiff's] termination, provid[ing] relevant dates, and includ[ing] the ages and nationalities of at least some of the relevant persons." Id. at 514. In contrast, the court in Hirsch v. Columbia Univ., College of Physicians Surgeons, 293 F. Supp. 2d 372 (S.D.N.Y. 2003), a case cited by Defendants in their moving papers, dismissed NYSHRL and NYCHRL claims against the defendant because "nothing in the Complaint [gave] rise to even a remote inference" that the defendant was personally involved in the discriminatory activities alleged by the plaintiff. Id. at 378.
The Court finds that Plaintiff's allegations are insufficient to state a claim as against defendant Collins. Unlike theSwierkiewicz complaint, which clearly alleged an adverse employment action (termination) taken for discriminatory reasons, Plaintiff's complaint fails to allege Collins' involvement in actionable conduct. Although the complaint alleges his personal involvement insofar as he is alleged to have pressured Plaintiff in stressful meetings and badgered her to accept one of the four enumerated options, and such action is alleged to have been discriminatorily motivated, the pleading is insufficient because, even taken as true, it fails to allege Collins' involvement in an adverse employment action. Among the options he is alleged to have presented her with was to "remain in her position and transfer to another group manager." Such a lateral transfer, even if imposed on an employee involuntarily, does not constitute an adverse employment action unless it is accompanied by some other material adverse change in conditions, such as a reduction in pay or status. No such additional circumstance is alleged in the complaint. Furthermore, as noted above, the complaint does not allege that Collins later demoted her or that he had any control over the decision to demote her. Accordingly, Plaintiff's section 1981, NYSHRL and NYCHRL claims will be dismissed as against Collins, with leave to replead.
In her opposition papers, Plaintiff asserts that the transfer would also have involved some adverse probationary status, but the complaint includes no such allegation.
The complaint is, however, sufficient to state a claim as against Imondi, who is alleged to have subjected Plaintiff, for retaliatory or discriminatory reasons, to atypical monitoring to an extent that caused her severe emotional distress. Taking the allegations as true, it cannot be said that they could not support a hostile work environment claim.
III. Intentional Infliction of Emotional Distress
Under New York law, a claim of intentional infliction of emotional distress requires proof of: 1) extreme and outrageous conduct; 2) intent to cause, or reckless disregard of substantial probability of causing severe emotional distress; 3) a causal connection between the conduct and the injury; and 4) severe emotional distress. See Howell v. New York Post Co., 612 N.E.2d 699, 702 (N.Y. 1993). New York's standard for stating a valid claim of intentional infliction of emotional distress is "rigorous and difficult to satisfy." Id. at 702. Intentional infliction of emotional distress 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 community." Murphy v. Amer. Home Prods., 448 N.E.2d 86, 90 (N.Y. 1983). Thus, satisfying the first element of this claim is difficult, even at the pleadings stage. Conboy v. ATT Corp., 84 F.Supp. 2d 492, 507 (S.D.N.Y. 2000), aff'd, 241 F.3d 242 (2d Cir. 2001).
In employment discrimination cases, New York courts have only rarely found complaints alleging intentional infliction of emotional distress sufficient to survive a Rule 12(b)(6) motion to dismiss. See Benjamin v. N.Y.C. Dep't of Health, No. 99 Civ. 12345(LTS)(AJP), 2002 WL 485731, at *9 (S.D.N.Y. Mar. 29, 2002). In general, cases that survive the strict "extreme and outrageous" requirement involve "some combination of public humiliation, false accusations of criminal or heinous conduct, verbal abuse or harassment, physical threats, permanent loss of employment, or conduct contrary to public policy." Stuto v. Fleishman, 164 F.3d 820, 828 (2d Cir. 1999). Additionally, claims involving sexual harassment and battery often satisfy the "extreme and outrageous" requirement for the purposes of surviving a 12(b)(6) motion to dismiss. See Benjamin, 2002 WL 485731, at *9 (citing Gerzog v. London Fog Corp., 907 F.Supp. 590, 604 (E.D.N.Y. 1995)).
In Murphy, the court dismissed an intentional infliction of emotional distress claim despite allegations that the plaintiff was transferred and demoted for reporting fraud, was told that since it would be illegal to fire him because of his age, he would be confined to routine work and would never advance, and was eventually fired in a humiliating manner. Murphy, 58 N.Y.2d at 297-299. In light of the conduct allegations found insufficient in Murphy, the actions allegedly taken by Collins and Imondi cannot be considered egregious enough to rise to a level "utterly intolerable in a civilized community."
Here, Plaintiff does not allege that she was sexually harassed or battered by Collins or Imondi. Nor does she allege that they verbally abused her, physically threatened her, publicly humiliated her, falsely accused her, or permanently deprived her of employment, as required by the cases mentioned above. Plaintiff merely alleged that Collins and Imondi engaged in badgering, monitoring, and "other acts of harassment." Even if accepted as true, these allegations are insufficient to support the requisite claim of "extreme and outrageous" conduct. Therefore, the Court concludes that Plaintiff can prove no set of facts in support of her intentional infliction of emotional distress claim that would entitle her to relief against the defendants.
CONCLUSION
For the foregoing reasons, Defendants' motion to dismiss the complaint as against Defendants Collins and Imondi is granted as to both Defendants to the extent of Plaintiff's claims under Title VII and the ADA and Plaintiff's claim for intentional infliction of emotional distress. The motion is granted as to Defendant Collins with respect to Plaintiff's claims pursuant to 42 U.S.C. § 1981, the NYSHRL and the NYCHRL. Defendants' motion is denied in all other respects. Plaintiff may file and serve an amended complaint reasserting her section 1981, NYSHRL and NYCHRL claims as against Defendant Collins within 14 days of the date hereof.
The initial pretrial conference scheduled for April 1, 2005, is adjourned to May 3, 2005, at 4:45 p.m. and the related deadlines are modified accordingly.
SO ORDERED.