Opinion
26191/2014E
07-06-2015
Rosaly Hernandez, Plaintiff, v. Weill Cornell Medical College, Defendant.
Appearances: Plaintiff: Garima Vir, Esq. Akin Law Group, PLLC 45 Broadway, Suite 2650 New York, New York 10006 (212) 825-1400 Defendant: Sheryl A. Orwel, Esq. Office of University Counsel Weill Cornell Medical College 445 East 69th Street, Suite 405 New York, New York 10021 (212) 746-0463
Appearances:
Plaintiff:
Garima Vir, Esq.
Akin Law Group, PLLC
45 Broadway, Suite 2650
New York, New York 10006
(212) 825-1400
Defendant:
Sheryl A. Orwel, Esq.
Office of University Counsel
Weill Cornell Medical College
445 East 69th Street, Suite 405
New York, New York 10021
(212) 746-0463
Alexander W. Hunter Jr., J.
The motion by the defendant, Weill Cornell Medical College, for an order pursuant to the New York Civil Practice Law and Rules ("C.P.L.R.") § 3211(a)(7), dismissing the complaint made by the plaintiff, Rosaly Hernandez, for failure to state a cause of action, is granted.
The claims are for alleged discrimination, retaliation, retaliatory discharge, intentional infliction of emotional distress (hereinafter "IIED") and negligent infliction of emotion distress (hereinafter "NIED"). The plaintiff was allegedly subjected to numerous acts of harassment, unlawful discrimination and illegal employment practices when she began to experience seizures five months after beginning to work for the defendant. The plaintiff further alleges that she was terminated on or about April 10, 2014 because of her perceived disability.
The defendant argues that the plaintiff's complaint is based entirely on boilerplate language and conclusory allegations.
The plaintiff opposes the defendant's motion to dismiss and asserts that the defendant violated New York State Executive Law § 296 (commonly referred to as the New York State Human Rights Law, "NYSHRL") and New York City Administrative Code Title § 8-207(1)(a) (commonly referred to as the New York City Human Rights Law, "NYCHRL") when it created discriminatory working conditions and a hostile work environment against her because of her perceived disability. The plaintiff also claims that the defendant failed to respond to her request for accommodations based on her alleged disability. In addition, the plaintiff argues that the defendant engaged in an unlawful discriminatory practice by retaliating against her for making a complaint about these conditions.
Moreover, the plaintiff asserts that the defendant's conduct caused her to suffer extreme emotional distress. The plaintiff alleges that Elena Chagan, the defendant's employee and the plaintiff's manager, created a hostile work environment when she engaged in extreme and outrageous conduct towards her. The plaintiff alleges that Ms. Chagan, "looked through her desk and condescendingly questioned her about her work." Furthermore, the plaintiff argues that she was owed a special duty by her employer to not be subjected to undue stress. As a result, the plaintiff brings claims for both IIED and NIED against the defendant.
In reply, the defendant argues that the allegations asserted do not rise to the level of extreme conduct required for an IIED claim. The defendant avers that, essentially, the allegations in the complaint provide no evidence to support the plaintiff's disability discrimination claim because they are insufficiently plead and conclusory. Furthermore, in regards to the NIED cause of action, the defendant asserts that they do not owe a special duty to her. Finally, the defendant asserts that under the retaliation provisions of NYSHRL and NYCHRL, a protected activity is the act of a person opposing any discriminatory practice that is forbidden under NYSHRL and NYCHRL, via official complaint or testimony. Since the plaintiff's act of requesting an accommodation is not an objection to an alleged discriminatory practice, the plaintiff's retaliation claims under both NYSHRL and NYCHRL are flawed and must be dismissed.
On a motion pursuant to C.P.L.R. § 3211(a)(7), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleadings fail to state a cause of action. Mitchell v. New York University, ___ N.Y.S3d ___, 2015 NY Slip Op. 05136 (1st Dept. 2011). On a motion to dismiss, the court must afford the pleading a liberal construction, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory. See AG Capital Funding Partners, L.P. v. State St. Bank & Trust Co., 5 NY3d 582 (2005). However, bare legal conclusions are not presumed to be true and are not accorded every favorable inference. See Maas v. Cornell University, 94 NY2d 87, 91 (1999).
The defendant has sufficiently demonstrated that the plaintiff did not plead any allegations in her complaint that would support her claims of discriminatory working conditions and hostile work environment. Statements by the defendant's employee such as, "shape up, or you are going to lose your job" and "are you ok?" do not amount to conduct that is extreme or outrageous. See Witchard v. Montefiore Medical Center, 103 AD3d 596 (1st Dept. 2013). The Appellate Division has held that an employer's statements that it would fire a disabled employee were not so pervasive as to establish a hostile work environment in violation of New York State Human Rights law. Witchard v. Montefiore Medical Center, (supra). The Appellate Division went on to affirm the employer's motion for summary judgment dismissing the complaint, in part, because the complaint lacked sufficient allegations to prove that the work environment was hostile.
Likewise, the act of questioning an employee's work cannot be fairly characterized as harassment or extreme behavior. Without more evidence, the statements and behavior of Weill Cornell's employees cannot be seen as extreme. Ferrer v. New York State Div. of Human Rights, 82 AD3d 431 (1st Dept. 2011) (finding that the specific conduct alleged by the petitioner in the complaint, if true, is legally insufficient to establish that the workplace was "permeated with discriminatory intimidation, ridicule and insult [and] isolated remarks or occasional episodes of harassment will not support a finding of a hostile or abusive work environment").
The defendant has sufficiently demonstrated that the plaintiff did not met the standard for retaliation. To sufficiently sustain the claim of retaliation, pursuant to the NYSHRL, an employee must establish retaliation by showing that: (1) she participated in a protected activity; (2) defendants knew of the protected activity; (3) defendants took an adverse employment action against her; and (4) a causal connection existed between the protected activity and the adverse employment action. See Forrest v. Jewish Guild for the Blind, 309 AD2d 546 (1st Dept. 2003). The act of requesting accommodation is not recognized as a protected activity, and as a result the plaintiff fails to satisfy the first prong for retaliation. McKenzie v. Meridian Capital Group, 35 AD3d 676 (2006). Since the first prong is not satisfied, there is no need to consider the others.
The plaintiff also failed to assert a viable claim for retaliatory discharge. In order to survive a claim for retaliatory discharge, one is required to demonstrate that there was a reasonable basis to believe that the defendant engaged in an actionable discriminatory practice and that the defendant discharged her as a result of her opposition to that practice. See Dodd v. Middletown Lodge (Elks Club) No. 1097, 264 AD2d 706 (1999). Here, the plaintiff alleges that she was terminated for making a complaint that the defendant engaged in an unlawful discriminatory practice. However, the plaintiff is unable to point to unlawful discriminatory conduct engaged in by her employer. Thus the claim for retaliatory discharge must be dismissed.
The burden for establishing IIED and NIED claims are high and strictly enforced. See AG Capital Funding Partners, L.P., (supra). A cause of action for either intentional or negligent infliction of emotional distress must be supported by allegations of conduct by the defendant 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. Such extreme and outrageous conduct must be clearly alleged in order for the complaint to survive a motion to dismiss. See Sheila C. v. Povich, 11 AD3d 120 (1st Dept. 2004). The statements alleged by the plaintiff regarding the manner of her work performance fall short of this strict standard. The alleged statements, "shape up, or you are going to lose your job" and "are you ok?" will not be regarded as conduct that is beyond all bounds of decency. See Malamood v. Kiamesha Concord, Inc., 182 AD2d 359 (1st Dept. 1992) (statements allegedly made by employer's representatives to employee who contracted cancer, such as "you are through" and "you are finished," were insufficiently outrageous and atrocious to support claim for intentional infliction of extreme emotional distress). As a result, the conduct by the defendant is insufficient to rise to the level that would warrant a finding of IIED.
Similarly, the plaintiff's allegations does not support a finding for NIED. In addition to the extreme and outrageous conduct requirement, the standard for NIED is even more burdensome. Under New York law, a cause of action for NIED may only lie where a defendant owes a special duty to the plaintiff, and an employer does not owe a special duty to an individual employee, because it has an obligation to treat all employees in the same manner. See Alexander v. Westbury Union Free School District, 829 F. Supp.2d 89, 112 (E.D.NY 2011); Cucchi v. New York City Off-Track Betting Corp., 818 F. Supp. 647, 656 (S.D.NY 1993). The plaintiff's NIED claim is therefore meritless, since the defendant does not owe any special duty their employees.
Accordingly, the defendant's motion for an order dismissing the complaint is granted and the action is dismissed in its entirety.
The defendant is directed to serve a copy of this order with notice of entry upon all parties within twenty (20) days of entry and file proof thereof with the clerk's office.
This constitutes the decision and order of this Court.
Dated: July 6, 2015ENTER:
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J.S.C.