Opinion
30437/03.
Decided May 5, 2008.
The plaintiff was represented by: McCabe and Associates, New York, NY.
The defendant was represented by: Tratner Molloy, New York, NY.
This action arises out of the discharge of plaintiffs Ernest Green (Green) and Clyde Crabb (Crabb) from their employment at defendant The Salvation Army (TSA). Plaintiffs allege that, as African-Americans, they experienced acts of racial discrimination and were subjected to a racially hostile work environment, in violation of the New York City Human Rights Law (Administrative Code of the City of New York, § 8-101, et seq.) and the New York State Human Rights Law (Executive Law § 290, et seq.). Plaintiffs further allege that, in retaliation for raising issues of public health and safety, they were discharged in violation of Labor Law § 740. TSA moves, pursuant to CPLR 3212, for summary judgment dismissing plaintiffs' complaint.
Factual Background
TSA is a not-for-profit religious corporation that contracts with the Department of Homeless Services of the City of New York to provide residential services for the homeless. On July 10, 2001, TSA hired Green as a full-time operations manager at the Jamaica Women's Triage and Referral Shelter for homeless women in Queens, New York (the women's shelter) at an annual salary of $34,218.60. Green's duties at the women's shelter, which had 65 beds, included supervision of seven employees.
Green had previously worked for TSA at another location but his employment had been terminated for reasons unrelated to the instant case.
On or about July 1, 2002, TSA opened a new housing facility for homeless families in the former Best Western Carlton House hotel in Queens, New York (the family shelter). Effective July 1, 2002, Green became the operations manager of the family shelter, which had 335 units or one unit per family, and his duties included supervision of over 50 employees. Green's annual salary, which was then $34,272, was increased to $55,000. In the chain of command, Green reported to Fred Jordan (Jordan), who, in turn, reported to Margaret Morris (Morris), the director of the family shelter. Green was hired by both Jordan and Morris and had direct contact with Morris. Jordan is African-American and Morris is Caucasian.
On July 6, 2002, Jordan hired Crabb as a full-time housekeeping supervisor at the family shelter. On July 31, 2002, TSA promoted Crabb to the position of the facility manager. In the chain of command, Crabb reported to Green.
In the early morning hours of August 22, 2002, on the way to the family shelter where she lived, Ms. Morris became sick in her private vehicle. Upon her arrival at the shelter, her private vehicle was cleaned by two night-shift custodians then on duty at the family shelter (the cleaning incident). Later that morning, the custodians reported the cleaning incident to their immediate supervisor, Crabb, who reported it to Green. Green requested that the custodians and Crabb immediately prepare written reports concerning the cleaning incident because the TSA rules prohibited the use of the TSA employees for personal services. The custodians and Crabb submitted their reports to Green, who reported the cleaning incident to TSA's Greater New York Division. The record is unclear as to whether the custodians were asked by Morris or Jordan, who was present at that time, to clean the vehicle and whether the cause of Morris' sickness was intoxication (as was originally claimed by one of the custodians but later withdrawn) or her heart condition (as Morris testified in her pre-trial examination).
Shortly after the cleaning incident, on August 28, 2002, Green terminated Crabb's employment with TSA. Jordan had instructed Green that Morris wanted Crabb terminated.On August 29, 2002, Green sent a letter to Al Peck, the Director of Social Services for Families and Adults at TSA's Greater New York Division and Morris' supervisor, recounting the cleaning incident and complaining that Morris and Jordan were "unprofessional, bias[ed] and possibly racist." In the evening of August 29, 2002, Green reported to Jordan that he was ill and would be unable to come to work the following day. On August 30, 2002, Jordan discharged Green by telephoning Green at home that he was terminated. In a memorandum dated September 20, 2002 to Stephen Banfield, General Secretary for Field Operations, Morris listed a multitude of reasons for Green's termination, including that Green "[t]ried to force staff to write negative letters about the Administrator [ i.e., Morris] suggesting racism."
By summons and complaint dated August 19, 2003, plaintiffs commenced the instant action, alleging racial discrimination, hostile work environment and unlawful retaliation. In their complaint, plaintiffs advanced five causes of action based on: (1) violation of the New York City Human Rights Law; (2) violation of the New York State Human Rights Law; (3) unlawful retaliation under Labor Law § 740; (4) the common law tort of intentional infliction of emotional distress; and (5) TSA's alleged breach of its own written policies and procedures. As an additional, unnumbered cause of action, plaintiffs alleged retaliation for their response to the cleaning incident.
It appears from the record that Green received a "right to sue" letter from an appropriate human rights agency. It does not appear from the record whether Crabb obtained a similar letter. In any event, TSA does not raise this issue in its papers and the court assumes that the necessary statutory prerequisites for the commencement of the instant action have been satisfied.
In their complaint and responses to TSA's interrogatories, as well in Green's pre-trial examination, plaintiffs listed nine occasions of racial discrimination and hostile work environment. The following allegedly occurred while Green worked at the women's shelter:
(1) Pay Differential. At the women's shelter, Green was paid $5,000 per annum less than a Caucasian employee, Richard Hardy, in the same position. At a meeting with a Caucasian supervisor, Dan Lockspeiser, in the early part of 2002, Green commented that he was not being paid enough and Mr. Hardy responded that he was being paid because he was white, and Dan "basically just laughed and it was a good little joke," but Green did not laugh.
The following allegedly occurred while Green and Crabb worked at the family shelter:
(2) Use of Morris Bathroom. Morris prohibiting Green from using a bathroom in her office, but tacitly approving the use of that bathroom by Chris Sword, a Caucasian manager.
(3) Promotion of a Hispanic Employee. Morris promoting an unqualified Hispanic employee over Crabb's objection who recommended another Hispanic employee.
(4) Use of Ice Machines. Morris allowing Caucasian families (clients) to use the ice machines at the family shelter, but prohibiting such use by the Afro-American families.
(5) Proposed Salary Cut. Morris requesting Green to take a $5,000 salary cut like the other shelter managers, excluding Mr. Sword, a Caucasian Director of Social Services. It does not appear from the record that the salary cut was implemented with respect to Green.
(6) Morris Yelling at Green. Morris yelling at Green in a loud and abusive tone, "what do I need you for, I have to do everything."
(7) Country of Origin. Morris asking Green and Crabb which country they were from and whether they were Americans.
(8) Un-American Sounding Names. Morris criticizing people with un-American sounding names.
(9) The "Wild Monkeys" Remark. Morris calling clients' children "wild monkeys."
With respect to the retaliation cause of action under Labor Law § 740, plaintiffs alleged that, between August 13 and August 26, 2002, they reported to TSA's Greater New York Division unsafe conditions affecting the health of the children and families staying at the family shelter, that plaintiffs observed that many such children were suffering from respiratory problems which plaintiffs believed were caused or exacerbated by mold and bacteria resulting from defective air conditioners, and that food provided by one vendor to the family shelter was of very poor quality.
TSA's defense is that, in accordance with the TSA employee handbook, Green and Crabb were at-will employees and, moreover, were considered to be the probationary employees during the first 90 days in their new positions and, thus, could be immediately terminated without the need for progressive discipline. TSA's position is that plaintiffs' discharge was for cause due to their poor job performance.
Discussion
The law is well settled that an employer has the right to terminate employment at will "at any time for any reason or for no reason"( Murphy v American Home Prods. Corp., 58 NY2d 293, 300-301), except where such discharge violates some statutory prohibition. Consequently, the issues involved herein are whether TSA's treatment of plaintiffs during the course of their employment at TSA and their ultimate discharge violated the New York City Human Rights Law, the New York State Human Rights Law and the so-called "Whistleblower" law. A collateral issue is whether the conduct of TSA's managers toward plaintiffs constituted intentional infliction of emotional distress.
Racial Discrimination
Adverse Employment Action
As and for their first and second causes of action, plaintiffs rely on the New York City and the New York State Human Rights Laws, respectively. The applicable provision of the New York City Human Rights Law (Section 8-107[1][a] of the New York City Administrative Code) states, in relevant part:
"It shall be an unlawful discriminatory practice:
For an employer . . ., because of the actual or perceived . . . race . . . [or] . . . color . . . of any person, . . . to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment."
Similarly, the applicable provision of the New York State Human Rights Law (Executive Law § 296[a]) states, in relevant part:
"It shall be an unlawful discriminatory practice:
For an employer . . ., because of the . . . race . . . [or] . . . color . . . of any individual, . . . to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment."
To establish a prima facie case of racial discrimination under either of the foregoing statutes, a plaintiff must prove that:
"[T]he human rights provisions of the New York City Administrative Code mirror the provisions of the Executive Law and should therefore be analyzed according to the same standards" ( Forrest v Jewish Guild for the Blind , 3 NY3d 295, 305, n. 3 [2004]).
(1) he or she is a member of the class protected by the statute;
(2) he was qualified to hold the position;
(3) he was terminated from employment or suffered other adverse employment action; and
(4) the discharge or other adverse employment action occurred under circumstances giving rise to an inference of racial discrimination
( see Forrest v Jewish Guild for the Blind , 3 NY3d 295, 305).
Once a plaintiff meets the foregoing requirements, the burden shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision'" ( Forrest, 3 NY3d at 305 [citations omitted]). Therefore, in order to succeed on his or her claim, "the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination by demonstrating both that the stated reasons were false and that discrimination was the real reason" ( id. [citation omitted]).
Thus, to prevail on its summary judgment motion in an employment-discrimination case, the defendant must demonstrate either the plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, non-discriminatory reasons for its challenged actions, the absence of a material issue of fact as to whether its explanations were pretextual ( see Forrest, 3 NY3d at 305). In that event, summary judgment would constitute "a highly useful device for expediting the just disposition of a legal dispute for all parties and conserving already overburdened judicial resources", inasmuch as no valid purpose would be served by submitting to a jury a cause of action that cannot survive as a matter of law ( see id. at 305-306 [internal citation omitted]).
Applying the law to the facts of this case, the court finds that both plaintiffs failed in the first instance to prove the four elements discussed above needed to establish a prima facie case. While both plaintiffs might satisfy the first three elements, neither plaintiff has proven the fourth necessary element, that the discharge or other adverse employment action occurred under circumstances giving rise to an inference of racial discrimination.
There was not one instance in which anyone at TSA made a racially disparaging remark or engaged in any racially motivated adverse action toward plaintiffs. Throughout his lengthy account of the events at his pre-trial deposition, Green never attributed anything racially derogatory to Morris or to anyone else at TSA about plaintiffs.
Even if plaintiffs had established a prima facie case, TSA rebutted the presumption of discrimination by offering, through the pre-trial testimony of Morris and the affidavits of Morris and Jordan, several legitimate, independent and non-discriminatory reasons to support plaintiffs' terminations. Specifically, Morris asserted that Green was terminated because, among other things, he:
(1) Was unable to absorb the new tasks that his job at the family shelter required of him.
(2) Was totally dependent on the Office Manager to do his job regardless of the number of times she explained the system to him.
(3) Did not follow the TSA requisition policy ( i.e., he asked vendors to bill in multiple invoices for the same job in order to avoid the headquarters' process of approval for single invoices in excess of $5,000).
(4) Ordered the destruction of valuable furniture at the family shelter after being given specific instructions not to do so.
(5) Scheduled vendors without prior approval (ordering a dumpster for $1,000, ordering very large amounts of supplies without authorized purchase orders, and using non-approved vendors when TSA had a central vendor system in place).
Morris and Jordan state in their respective affidavits that Mr. Crabb was terminated because he:
(1) Violated administrative policy by ordering supplies and material without completing the required purchase orders; and
(2) Interfered with the way the air conditioner and elevator repairmen did their jobs by refusing to allow them access to the family shelter on at least two occasions.
TSA thus established an evidentiary basis sufficient to entitle it to judgment in its favor as a matter of law ( see Oross v Good Samaritan Hosp., 300 AD2d 457, 458 [the defendant Hospital established its entitlement to judgment as a matter of law on the discrimination claim by submitting evidence demonstrating that the plaintiff was terminated from her job as a result of her misconduct and not as a result of discrimination]; Jordan v American Intl. Group, 283 AD2d 611, 612, lv dismissed, 97 NY2d 743 [there was ample evidence that the plaintiff was discharged, not because of unlawful discrimination, but because of her unsatisfactory job performance]). It then became incumbent upon plaintiffs to come forward with proof in evidentiary form to establish the existence of a genuine triable issue of fact ( see, e.g., Bethlehem Steel Corp. v Solow, 51 NY2d 870, 872).
In opposition, plaintiffs allege five instances indicating intentional racial discrimination, as follows:
(1) Pay Differential. In August 2001, Green complained that he was paid $5,000 less per annum than Richard Hardy, a Caucasian employee. According to TSA, however, the $5,000 differential in salaries between Green and Mr. Hardy at that time was due to the fact that Mr. Hardy was more senior than Green by two years. Moreover, as of July 1, 2002, Green's salary was increased to $55,000 while Mr. Hardy received no salary increase.
As discussed in the next section, even if Messrs. Hardy's and Lockspeiser's "good little joke" about the pay inequality between Green and Hardy was motivated by racism, the single utterance of a vague term (a "joke") does not qualify as the "steady barrage of opprobrious racial comments" that the Court of Appeals requires in order to demonstrate the existence of a hostile work environment ( see Forrest, 3 NY3d at 311; see also Brown v Coach Stores, Inc., 163 F3d 706, 713 [1998] [no hostile work environment where supervisor occasionally made racist remarks, including one directed at plaintiff]; Carter v Cornell Univ., 976 F Supp 224 [1997], affd, 159 F3d 1345 [1998] [six race-related disparaging comments over three years did not create a hostile work environment]).
(2) Use of Morris' Bathroom. In mid-July 2002, Morris told Green not to use a bathroom in her office. Subsequently, in the late part of July 2002, Morris did not object when Chris Sword, who is Caucasian, used the bathroom in her office. In her pre-trial testimony, Morris emphatically stated that, to avoid hearing urination and other similar sounds, she instituted an across-the-board policy that applied to all family shelter residents and employees (regardless of race, gender or any other factor) that the bathroom in her office was not to be used by anyone. Although there may have been times when the policy was violated and she did not notice it, her silence was not a sign of approval. Plaintiffs failed to prove a single instance when a Caucasian employee used Morris' bathroom with her express permission.
(3) Promotion of an Unqualified Hispanic Employee. Crabb was instructed by Morris to promote a Hispanic porter, Jorge Sosa, to the position of the housekeeping supervisor because she believed that such employee would have a better relationship with the Hispanic staff, even though such employee needed the help of a subordinate to read and translate work orders and instructions from managers. In opposition, Morris stated in her affidavit that she disagreed with Crabb's assessment of Mr. Sosa's capabilities and used her judgment developed during her many years of managerial experience within TSA. Further, Morris stated that Crabb had no authority to promote Mr. Sosa and that his participation in the hiring and promoting of his subordinates was limited to recommendations only. It has been held that "[a]s a matter of law, an employee's disagreement with an employer's business decision is insufficient to prove discriminatory conduct" ( Jimoh v Ernst Young, 908 F Supp 220, 226).
(4) Use of Ice Machines. According to Green's pre-trial deposition, TSA allowed only Caucasian families (clients) to use the ice machines at the family shelter. In opposition, Morris explained in her pre-trial deposition that the ice machines were originally allowed to be used by all residents of the family shelter and but that in the summer of 2002, she decided that the ice machines could no longer be used by any residents for house-keeping reasons unrelated to race. This likewise represents Green's disagreement with Morris' business decision, which the court declines to second guess.
(5) Proposed Salary Cut. Finally, Green testified in his pre-trial deposition that he and some other managers of the family shelter, except for Mr. Sword, a Caucasian manager, were required to take a $5,000 salary cut. Plaintiffs have not further elaborated on this assertion and, in any event, it appears from the record that Green did not have his salary reduced.
Overall, TSA's explanations offer "legitimate nondiscriminatory reasons for [its] challenged actions" ( see Forrest, 3 NY at 305). Plaintiffs have failed to demonstrate any proof that Morris' pre-trial testimony and her affidavit, as well as Jordan's affidavit, were untruthful and that their actions were motivated by racial hatred.
Accordingly, plaintiffs did not meet their burden of showing that the foregoing reasons were a mere pretext for discrimination and summary judgment is granted to TSA on plaintiffs' cause of action alleging racial discrimination ( see Ayromlooi v St. Luke's-Roosevelt Hosp. Center, 9 Misc 3d 1106[A] [2005]).
Hostile Work Environment
In the alternative, plaintiffs' claim that they suffered disparate treatment in the workplace may be shown through proof that they were subjected to a hostile work environment ( see Forrest, 3 NY3d at 310, n. 9). The standard for establishing a hostile work environment claim is a demanding one ( see, e.g., Scott v Memorial Sloan-Kettering Cancer Ctr., 190 F Supp 2d 590, 599).
A racially hostile work environment exists "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment'" ( Forrest, 3 NY3d at 310 [citation omitted]). "Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance. . . .'" ( Id. at 310-311 [citation omitted]).
In their complaint, plaintiffs alleged that TSA "created a hostile work environment for plaintiffs by abusive verbal comments [directed] to him [Green] on several occasions in front of his staff and in front of clients." Nevertheless, these and similar instances do not arise to the level of a hostile work environment actionable under the law, as follows:
(1) Morris Yelling at Green. Morris once asked Green concerning the use of client ID cards. Green explained that only one computer was working. Morris, in a loud and abusive tone, said substantially the following: "what do I need you for, I have to do everything." However, "[b]eing yelled at [and] receiving unfair criticism . . . do not rise to the level of adverse employment actions" ( Forrest, 3 NY3d at 307 [citation omitted]).
(2) Country of Origin. In the early August 2002, Morris made a general comment about the security people at the family shelter speaking with accents which Morris could not understand and specifically asked Green and Crabb which country they were from and whether they were Americans. However, Morris' complaint of not being able to understand the accents of some of the employees of the family shelter does not constitute discrimination. In fact, Crabb echoed this sentiment when he expressed his frustrations regarding the inadequacy of Mr. Sosa's English proficiency. Furthermore, the question of the country of origin was directed at everyone then present at the meeting and was not specifically directed at plaintiffs. In any event, the question was innocuous because, as a condition of being hired, every job applicant must disclose his or her immigration status to a prospective employer.
(3) Un-American Sounding Names. According to plaintiffs, Morris pointed to the names on a memorandum listing the personnel of the family shelter and stated that she did not like people with names that were not American. Referring to Mr. Lockspeiser, a Caucasian manager, Morris allegedly said, in a sarcastic tone, that since he was Jewish, he could not supervise Morris on the Sabbath. This remark, however, was not directed to plaintiffs and did not concern plaintiffs' race.
(4) Morris Calling Clients' Children Monkeys. According to plaintiffs, at some unspecified staff meetings, the African-American children of families serviced by TSA were referred to as "monkeys" and other insulting racial remarks. In particular, Morris was heard to say, "where is the security? The children are running around like wild monkeys." In her pre-trial deposition, Morris testified that the use of the term "monkeys" on a single occasion regarding children who were running wild was her reference to their playfulness, not their race. Even assuming that Morris' comment was made with a racial overtone, "[a] hostile work environment requires more than a few isolated incidents of racial enmity'" ( Forrest, 3 NY3d at 311 [citation omitted]; cf. Lumhoo v Home Depot USA, Inc., 229 F Supp 2d 121, 155 (black plaintiff established that his working conditions were altered for the worse where over the course of five to seven months, various management employees, as well as a co-worker, used the "N" word in his presence and made disparaging comments about blacks since such comments, when considered together, were sufficiently severe and pervasive to constitute a pattern of harassment]).
It appears that plaintiffs had a personality conflict with Morris and could not work well together. Plaintiffs admit that their termination took place shortly after their response to the cleaning incident in which Morris' private vehicle was cleaned by the employees of the family shelter. As Green stated in his opposing affidavit, "[i]mmediately after this incident, I was coerced into firing Clyde Crabb, even though his performance was excellent. Immediately after terminating Clyde Crabb, I was fired." Likewise, TSA's reply brief states that, by reporting the cleaning incident to TSA's headquarters, plaintiffs "conspired to spread completely false and damaging rumors about . . . Morris in an attempt to undermine her authority," which was one of the reasons for plaintiffs' discharge. "[M]ere personality conflicts must not be mistaken for unlawful discrimination, lest the antidiscrimination laws become a general civility code'" ( Forrest, 3 NY3d at 309 [citations omitted]).
Finally, both plaintiffs were hired and fired by the same people. Green was hired by Jordan and Morris, and was fired by Jordan at the direction of Morris. Crabb was hired by Jordan and was fired by Green at the direction of Jordan and Morris. Because plaintiffs were hired and fired by the same people within a short period of time (two months), this fact pattern "strongly suggest[s] that invidious discrimination was unlikely'" ( Dickerson v Health Mgmt. Corp. of Am. , 21 AD3d 326 , 329 [citation omitted]).
Accordingly, plaintiffs have not met their burden of raising a genuine issue of material fact, and summary judgment for TSA on plaintiffs' first and second causes of action is proper.
Retaliation
Plaintiffs' third cause of action is for unlawful retaliation pursuant to Labor Law § 740(2)(a), which prohibits an employer from taking "any retaliatory personnel action against an employee" who:
"discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety. . . ."
To meet the requirements of Section 740, plaintiff must establish that the employer policy or practice at issue constituted an actual violation of specific law, rule, or regulation, created "a substantial and specific danger to the public health or safety endangered the health or safety of the public and that plaintiff suffered a "retaliatory personnel action" because of complaining about that violation ( see Quirk v Emergency Housing Group, Inc., 305 AD2d 390, lv denied, 100 NY2d 514).
Plaintiffs, by failing to state which law, rule or regulation TSA purportedly violated, have not asserted a valid cause of action under Labor Law § 740 ( see Connolly v Harry Maclowe Real Estate Co., 161 AD2d 520, 522-523 [Labor Law § 740 claim dismissed for plaintiff's failure to indicate which law, rule or regulation had been violated]; see also Capobianco v Amn. Stock Exchange, 233 AD2d 189, 190, lv denied, 89 NY2d 810 [there was no cause of action under Labor Law § 740 because plaintiff's "submissions fail[ed] to satisfy the requirement of an actual' violation of law"]). Although plaintiffs have submitted Crabb's affidavit detailing the problems with the air conditioning, the affidavit fails to identify the specific laws that TSA allegedly violated, which is a predicate to the maintenance of a cause of action under Section 740. Similarly, the complaint and plaintiffs' responses to the interrogatories are silent in that regard. In addition, an undated article in Queens Forum, which plaintiff annexed to their opposition papers and which described the conditions at the shelter, contained no references to the laws that were allegedly violated. Accordingly, plaintiffs have not established a violation of Labor Law § 740.
Intentional Infliction of Emotional Distress
Although plaintiffs agreed with TSA not to claim mental anguish pursuant to the Preliminary Conference Order dated April 25, 2005, TSA extensively briefed plaintiffs' fourth cause of action for intentional infliction of emotional distress and, accordingly, the court addresses it.
As and for their fourth cause of action, plaintiffs allege that TSA "maliciously and intentionally created a hostile, vindictive environment to inflict such severe emotional distress on plaintiffs" and "Morris used every possible opportunity to humiliate and demean the plaintiff[s] emotionally" and that Morris' conduct was "wilful" and "reckless." In their responses to TSA's interrogatories, plaintiffs specified the following instances of humiliation:
(1) Yelling. "Morris called Mr. Green on July 20, 2002 and yelled at him to come in and fix the food card program, which she had implemented."
(2) Insults. At some unstated time, "Morris insulted Mr. Green in front of Mr. Green's subordinate."
(3) Threatening to Fire. At some unstated time, "Mr. Fred Jordan threatened to fire Mr. Crabb, without reason or cause on several occasions."
Under New York law, a claim of intentional infliction of emotional distress requires: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and the injury; and (iv) severe emotional distress" ( Howell v New York Post Co., Inc., 81 NY2d 115, 121). "The standard for stating a valid claim of intentional infliction of emotional distress is rigorous, and difficult to satisfy" ( Howell, 81 NY2d at 122). To qualify as extreme and outrageous, the conduct allege must "go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society" ( id.).
This assumes, without opposition from TSA, that plaintiffs' cause of action for intentional infliction of emotional distress was timely asserted. Pursuant to CPLR 215 [3], plaintiffs' claim for intentional infliction of emotional distress, an intentional tort, alleged to have occurred prior to August 19, 2003 (the date of the commencement of the instant action) is barred by the one-year statute of limitations ( see Gallagher v Directors Guild of America, Inc., 144 AD2d 261, 262 [1988], app denied, 73 NY2d 708 [1989]).
Plaintiff has failed to allege the extreme and outrageous conduct necessary for claim of intentional infliction of emotional distress. Even accepting as true all of plaintiffs' allegations, the conduct of TSA's employees during plaintiffs' employment at TSA cannot be characterized as atrocious or utterly intolerable. While Morris allegedly yelled at Green and insulted him in front of a subordinate, this behavior does not go beyond "all possible bounds of decency" ( Howell, 81 NY2d at 122). Similarly, threatening to fire a person does not constitute an intentional infliction of emotional distress because even an actual discharge does not entitle a person to assert such a claim ( see McIntyre v Manhattan Ford, Lincoln-Mercury, Inc., 256 AD2d 269, 270, app dismissed, 93 NY2d 919, lv denied, 94 NY2d 753 [where plaintiff asserted both discrimination and intentional infliction of emotional distress, the latter claim could not be maintained).
Plaintiffs' fifth cause of action for breach of TSA's "written policies and procedures" lacks merit. Plaintiffs' undisputed status throughout their employment at TSA was that they were at-will employees and, furthermore, that they were probationary employees in the first 90 days in their new positions. Finally, plaintiffs' alternative cause of action retaliation for reporting the cleaning incident does not appear to fit within any cognizable legal theory.
Conclusion
TSA's motion for summary judgment is granted and the complaint is dismissed. The Clerk is directed to enter judgment accordingly.
The foregoing constitutes the decision, order, and judgment of the court.