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finding that plaintiff's allegations were "not continuous in time with one another or with the timely acts that [he] has alleged."
Summary of this case from Blandon v. Teamsters Local Union No. 443Opinion
99 Civ. 4005 (MBM)
July 2, 2002
THOMAS E. MANGINES, ESQ. (Attorney for Plaintiff), Mangines Burke Bridgeport, CT 06604.
TANYA L. JACHIMIAK, ESQ., MICHAEL J. SHEEHAN, ESQ. (Attorneys for Defendant), Connelly Sheehan Moran Chicago, IL 60606.
OPINION ORDER
James Madera sues Metropolitan Life Insurance Company ("MetLife"), alleging unlawful retaliation and racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981, and N.Y. State Exec. Law § 296 et seq. Plaintiff asserts also New York common law claims of negligent misrepresentation, breach of contract, and breach of the implied covenant of good faith and fair dealing. Defendant moves to dismiss under Fed.R.Civ.P. 12(b)(6). For the reasons stated below, the motion is granted in part and denied in part.
I.
The facts alleged in the second amended complaint, accepted as true for the purposes of this motion, are as follows: James Madera, a Puerto Rican, Hispanic male, began working for MetLife as an Account Representative in Stamford, Connecticut on September 6, 1982. (Compl. ¶ 10) After several promotions, plaintiff became Branch Manager in April 1986 and performed his duties in a "competent and at least satisfactory manner." (Id. ¶¶ 11-13)
In or about September 1988, plaintiff hired Augustine Ofili, a black male, as an Account Representative. In the fall of 1991, plaintiff and of in approached Michael Irvine, plaintiff's supervisor, to request that of Ofili be considered for an open management position for which he was qualified. Irvine declined to promote of Ofili. In January 1992, of Ofili, with plaintiff's support, filed a complaint with the EEOC and state agency challenging the decision as racially discriminatory under Title VII and Connecticut law. Thereafter, Irvine continuously suggested that of Ofili's complaint was plaintiff's fault, and at one point called plaintiff at home to threaten that if Irvine was forced to promote of Ofili, he would give him plaintiff's job. (Id. ¶¶ 14-19)
In July 1993, John McMahon, a former Regional Vice President, presented plaintiff with a "'promotional'" opportunity in Los Angeles and advised him to accept it because Irvine was planning to demote or terminate him. This transfer removed plaintiff from his growing territory in Connecticut, which had provided considerable potential for advancement within the company. The transfer resulted also in a huge reduction in compensation, and precluded further career growth. Having no other choice under the circumstances, plaintiff accepted the position. (Id. ¶¶ 21-22)
In the fall of 1993, plaintiff provided an affidavit and, under subpoena, deposition testimony in the of Ofili case, then pending in federal court. The testimony was damaging to MetLife. Irvine then wrote a letter to the Executive Vice President objecting to plaintiff's "'promotion'" because plaintiff was not a "'team player'" and was being helpful to of Ofili in his lawsuit; he referred to plaintiff as a "'disloyal illiterate.'" Irvine was subsequently removed from his position and reassigned, assuming a lesser role with the company; however, he has since been promoted to Vice President. (Id. at 23-24)
In October 1996, plaintiff was transferred to the Home Office in New York as Vice President of Account Representative Training, a position of limited growth potential. (Id. ¶ 25)
In February 1997, plaintiff's superiors, McMahon and Orluck, were replaced by Peter Wilkins, Vice President, who became "tied to Irvine, and subject to his wishes." Upon his appointment, Wilkins reassigned plaintiff to Management Training, which had "considerably less accountability in the operation of the company." Wilkins told plaintiff that his management experience was more valuable there, but Wilkins told McMahon the real reason for the reassignment was that plaintiff was disliked by the Territorial Officers. Thereafter, Wilkins assigned plaintiff to lead the Pre-Management Identification and Selection Program. Despite promises to support plaintiff in this endeavor, Wilkins failed to support plaintiff, setting him up for failure and discharge. (Id. ¶¶ 26- 29)
In March 1997, plaintiff met with MetLife's in-house counsel, Ciff Ryan, regarding the Olifi lawsuit and expressed concerns about being retaliated against by Wilkins and Irvine. Ryan agreed it was a legitimate concern, commenting, "'I'm afraid I'd have to agree with you.'" Plaintiff later met with his former advisor, Orluck, and was informed that Irvine "'was out to get'" him, and that Irvine had "'bad mouthed'" plaintiff to Wilkins. In the spring of 1997, Met Life settled the Olifi case. At a company meeting, Irvine informed plaintiff that the lawsuit with "'your boy'" was settled. (Id. ¶¶ 30-33)
In June 1997, plaintiff met with Wilkins to discuss his salary increase and performance review, which, contrary to company policy, had been upheld for 18 months. Wilkins "'promised' in bad faith" to process plaintiff's increase and assured him that he would get "'something.'" From June through August 1997, plaintiff made inquiries to Wilkins regarding the promised salary increase, without success. (Id. ¶¶ 36-37)
In or about August 1997, plaintiff was reassigned to report to Mr. Sinni, the Vice President of Management Training who reported directly to Wilkins. Plaintiff was thereby demoted one level in the management hierarchy. Sinni recommended that plaintiff be given an 8% salary increase effective August 4, 1997, but on September 11, 1997, Wilkins reduced the pay increase to 4% and made it effective nearly three months later without retroactivity. Wilkins then rescinded the 4% increase in November. (Id. ¶¶ 38-39, 41-42)
On October 31, 1997, plaintiff was presented with a "'Voluntary' Separation offer" which he did not ask for or want. When he met with Wilkins on November 5, 1997 to discuss the offer, plaintiff was told for the first time in his tenure at MetLife that his performance was in the lowest quintile, and that he had failed to "'deliver'" on the Pre-Management Conference Program. Wilkins told plaintiff that he did not closely supervise plaintiff because plaintiff was an officer of MetLife and therefore did not require supervision. Wilkins nonetheless had worked closely with some of the white officers in plaintiff's unit. Also at this meeting, plaintiff asked about remaining with MetLife until December 31, 1997, in order to seek new employment and to avoid negative tax consequences. Wilkins responded, "'[Y]our tax problem is of no concern to me. I'll let you go if and when I feel like it.'" Similarly situated non-Hispanics who were also leaving the company during the same period were allowed time to pursue other opportunities. (Id. ¶¶ 43-45, 47-48)
Plaintiff then registered a complaint with MetLife's ombudsman regarding the treatment he had received, but, contrary to company policy, the ombudsman gave no support to plaintiff. Plaintiff then filed a complaint with the New York State Division on Human Rights ("SDHR") and the Equal Employment Opportunity Commission ("EEOC"). Plaintiff received a right-to-sue letter from the EEOC on March 8, 1999 and commenced this action on June 2, 1999. (Id. ¶¶ 2, 49)
II.
Defendant argues first that many of plaintiff's statutory claims are time-barred. Under Title VII, a plaintiff ordinarily must file his claim with the EEOC within 300 days of the "alleged unlawful employment practice." 42 U.S.C. § 2000e-5 (e)(1) (1994); see also Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998). Plaintiff's charge was filed with the EEOC on July 13, 1998. Defendant contends that the only alleged adverse employment actions timely filed under Title VII are the denial of a salary increase and his termination; all other events occurred before September 16, 1997 and are time-barred.
Plaintiff's remaining statutory claims, under § 1981 and N.Y. State Exec. Law § 296, are governed by a three-year statute of limitations, measured from the date the action was filed in court. See N.Y. C.P.L.R. § 214(2), (5); see also Johnson v. Ry. Express Agency, Inc., 421 U.S. 454, 462 (1975); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). This case was filed on June 2, 1999. Defendant thus argues that plaintiff's remaining statutory claims are time-barred to the extent they rely on events prior to June 2, 1996. The only event this time limitation excludes is plaintiff's July 1993 transfer to Los Angeles.
In response, plaintiff asserts that he was subject to a "continuing violation." Under the "continuing violation" exception to the Title VII limitations period, if a plaintiff brings a claim that is timely as to one incident in an ongoing course of discrimination, all claims of discriminatory acts that are part of that course of conduct will be timely even if they would be untimely standing alone. Lambert v. Genesee Hosp., 10 F.3d 46, 53 (2d Cir. 1993). Assertions of continuing violations, however, are difficult to maintain because the doctrine is "disfavored" in the Second Circuit. See Nonnenmann v. City of New York, 174 F. Supp.2d 121, 129 (S.D.N.Y. 2001). Accordingly, "[t]o invoke the doctrine, a plaintiff must show either (1) specific ongoing discriminatory policies or practices, or (2) specific and related instances of discrimination that are permitted by the employer to continue unremedied for so long as to amount to a discriminatory policy or practice." Weeks v. New York State Div. of Parole, 273 F.3d 76, 82 (2d Cir. 2001) (citations omitted); see also VanZant, 80 F.3d at 713 (citing seniority lists and employment tests as examples of ongoing discriminatory policies). "[M]ultiple incidents of discrimination, even similar ones, that are not the result of a discriminatory policy or mechanism do not amount to a continuing violation." Lambert, 10 F.3d at 53.
Plaintiff alleges five discriminatory acts that occurred outside the Title VII limitations period: (1) the July 1993 promotion (2) the October 1996 transfer to New York; (3) the February 1997 assignment to management training; (4) the 1997 assignment to the Pre-Management Identification and Selection Program; and (5) the August 1997 demotion. Aside from plaintiff's conclusory allegations that these incidents constituted "continuing retaliation" or "continuing discriminatory activity," there is nothing in the Second Amended Complaint to suggest that the events pleaded were the result of a single discriminatory policy or mechanism that would justify tolling the statute of limitations. Rather, the allegations involve "different conduct by different persons in diverse contexts, and were not repetitive or ongoing in nature." Swanston v. Pataki, No. 97 Civ. 9406, 2000 WL 245871, at *2 (S.D.N.Y. Mar. 3, 2000); see also Miller v. Citicorp, No. 95 Civ. 9728, 1997 WL 96569, at *7 (S.D.N.Y. Mar. 4, 1997). Plaintiff's conclusory allegations that the acts amounted to a continuing violation are an insufficient substitute for an explanation of how these distinct acts are related. See id. Moreover, the acts "are not continuous in time with one another or with the timely acts that [he] has alleged." Quinn, 159 F.3d at 766. Significantly, there is a three-year gap between the first two alleged incidents of discriminatory activity. "Absent unusual circumstances, [such a] gap is a discontinuity that defeats use of the continuing violation exception." Weeks, 273 F.3d at 84.
As noted, this incident is also outside the applicable limitations period for the § 1981 claim and the state law discrimination claim.
Nor can plaintiff invoke the doctrines of equitable estoppel or equitable tolling to avoid the time bar. Estoppel applies when a plaintiff knows he has a claim, but fails to make a timely filing because he relies on defendant's fraudulent misrepresentations. See Dillman v. Combustion Eng'g, Inc., 784 F.2d 57, 60-61 (2d Cir. 1986) No such misrepresentations are alleged here. Plaintiff attempts to rely on the fact that he was retained as a highly paid executive until the end, but continued employment alone does not toll the limitations period, see Delaware State Coll. v. Ricks, 449 U.S. 250, 257 (1980), and plaintiff does not claim that he was otherwise misled. Indeed, plaintiff himself admits that he was left to "hope against hope that MetLife would turn from its discriminatory and retaliatory ways" (Pl. Mem. at 9) This statement, as well as others in the complaint detailing the timing of plaintiff's knowledge about defendant's discriminatory and retaliatory activities, also show that equitable tolling is inappropriate. That doctrine is reserved for a plaintiff who is unaware of his claim, not for one who knows about it but hopes not to file it. See Dillman, 784 F.2d at 60; In this case, plaintiff was plainly aware of his rights from the earliest possible moment — the case begins with his assistance to a black employee in vindicating the same rights plaintiff now asserts (Compl. ¶ 17), and as early as March 1997, plaintiff voiced concerns to MetLife's counsel over his own treatment by defendant (Compl. ¶ 30). There is thus no inequity in placing the burden on the plaintiff to preserve his claim, or take the consequences of failing to do so.
Absent any applicable exception to the limitations period, plaintiff's Title VII claims relating to conduct occurring before September 16, 1997 and plaintiff's § 1981 and state law claims relating to conduct occurring before June 2, 1996, are dismissed.
III.
Defendant argues next that even the allegations that can be considered do not state retaliation or discrimination claims upon which relief could be granted under the federal and state civil rights laws. Aside from their differing statutes of limitations, claims under Title VII and the parallel provisions of New York State Human Rights Law require the same analysis. See Reed v. A.W. Lawrence Co., Inc., 95 F.3d 1170, 1177 (2d Cir. 1996)
A. Retaliation
To state a claim for retaliation, a plaintiff must allege that: (1) he was engaged in protected activity; (2) defendant was aware of plaintiff's participation in such activity; (3) plaintiff suffered an adverse employment action; and (4) there was a causal connection between the adverse employment action and the protected activity. Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000). There is no dispute that plaintiff's participation in a black employee's discrimination suit against defendant constitutes protected activity; nor is there any dispute that defendant knew of plaintiff's participation. Rather, defendant disputes that plaintiff has sufficiently alleged the third and fourth elements of his claim.
An employment action is adverse if it results in a "materially adverse change" in the terms and conditions of the plaintiff's employment. Galabaya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). "A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation." Id. (citation and internal quotation marks omitted). The change must be "more disruptive than a mere inconvenience or an alteration in job responsibilities." Id.
In this case, plaintiff alleges that his 1996 transfer, 1997 demotions, denied salary increase, and termination, all constituted adverse employment actions. Taking the incidents chronologically, the October 1996 transfer from the west coast to New York does not rise to the level of an adverse employment action. The mere fact that an employee has been transferred is not in itself sufficient to show an adverse change. See Smith v. AVSC Int'l, 148 F. Supp.2d 302, 313 (S.D.N.Y. 2001); Little v. New York, 96 Civ. 5132, 1998 WL 306545, at *5 (E.D.N.Y. June 8, 1998) ("The realities of the workplace dictate that employees do not always have the option to work in the location they desire. Employees must often go where the employer determines they are needed most."), aff'd without opinion, 173 F.3d 845 (2d Cir. 1999). Plaintiff does not allege that the transfer constituted a demotion or otherwise effected a materially adverse change in his working conditions. Although he does state that the New York position had limited growth potential, he had previously alleged that his west coast position had no opportunity for career growth. (Compl. ¶¶ 21, 25) Further, plaintiff's complaint and papers suggests that plaintiff preferred to work on the east coast, and that plaintiff's supporters within the company were responsible for bringing him back to the region. (Compl. ¶ 21; Pl. Mem. at 4 ("In October 1996, two Vice Presidents of the Company, McMahon and Orluck, transferred Madera back to New York because Irvine had 'lost his seat' in the corporation and in its pecking order.'")) That transfer can not give rise to a retaliation claim.
The series of reassignments in 1997, however, can be considered adverse employment actions. Plaintiff alleges that his February transfer to management training put him in a job with "considerably less accountability in the operation of the company." (Compl. ¶ 27) He further alleges that he was set up for failure in being assigned to lead the Pre-Management Identification and selection Program without any support from his superior. (Id. ¶ 29) Finally, plaintiff alleges that the August 1997 reorganization, in which he was assigned to report to Sinni, "demoted plaintiff's position by one level in the management hierarchy." (Id. ¶ 39) At this stage in the litigation, these allegations are sufficient to establish that plaintiff suffered adverse employment actions.
In addition, the denial of a salary increase at the end of 1997, for which plaintiff was allegedly recommended and qualified, and his ultimate firing, constituted further adverse employment actions. Defendant correctly points out that the denial of salary increases does not make out a "failure to promote" case under Title VII, see Brown v. Coach Stores, Inc., 163 E.3d 706, 709-710 (2d Cir. 1998); however, that does not mean that the denial of an allegedly deserved and sought-after salary increase does not constitute an adverse employment action. Defendant argues also that plaintiff was not fired, but rather admittedly signed a voluntary separation agreement. However, it is reasonable to infer from the allegations in the complaint that the separation was not a matter of plaintiff's choice; the allegations suggest that had plaintiff not signed such an agreement, he would have been fired. (Compl. ¶¶ 43-44) Thus, plaintiff answers that the termination was, at a minimum, a constructive discharge. Although a constructive discharge claim typically involves a resignation due to intolerable working conditions, see Stetson v. NYNEX Serv. Co., 995 F.2d 355 (2d Cir. 1993), the facts alleged here, if true, also would be sufficient to sustain a finding that plaintiff was forced to resign. See Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1188-89 (2d Cir. 1987). As alleged, then, plaintiff's discharge constituted another adverse employment action.
The only issue that remains is whether plaintiff has sufficiently alleged the fourth element of a retaliation claim — a causal connection between the protected activity and the adverse action. Historically, the Second Circuit has required that Title VII complaints contain specific facts establishing each element of a prima facie case of retaliation, including the causation element. This requires a plaintiff to allege: (1) direct evidence of retaliatory animus; (2) that the protected activity was followed closely by discriminatory treatment; or (3) other circumstantial evidence, such as disparate treatment of fellow employees who engaged in similar conduct. See Johnson v. Palma, 931 F.2d 203, 207 (2d Cir. 1991). However, the Supreme Court's recent decision in a Title VII discrimination case, Swierkiewicz v. Sorema N.A., 534 U.S. 506, 122 S.Ct. 992 (2002) casts doubt on this requirement. There, the Court held that "the prima facie case . . . is an evidentiary standard, not a pleading requirement," and required that a Title VII complaint comply only with the ordinary rules for notice pleading set forth in Fed.R.Civ.P. 8(a)(2). Id. at 997. That Rule provides that a complaint need include only "a short and plain statement of the claim showing that the pleader is entitled to relief." The Court then found that even a complaint that relies only on conclusory assertions of discrimination to establish the causation element can "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests," and hence satisfies Rule 8. Swierkiewicz, 122 S.Ct. at 997-98 (citation omitted)
Logically, this simplified pleading standard would apply to retaliation as well, and plaintiff's allegations of retaliation in connection with the events detailed in the complaint easily satisfy this standard. See id. Even if the old standard applied, plaintiff has set forth facts sufficient to satisfy the fourth element of a prima facie case. Plaintiff has alleged that Irvine explicitly blamed plaintiff for the Ofili lawsuit and threatened his job as a result. (Compl. ¶ 19) Irvine also denigrated plaintiff before his other supervisors, sometimes explicitly referencing plaintiff's participation in the Ofili lawsuit (id. ¶¶ 21, 24, 28, 30, 31), and made a derogatory remark to plaintiff when the case settled (id. ¶ 33). Although Irvine was not plaintiff's supervisor at the time of the adverse decisions at issue here, plaintiff does allege that Irvine had influence over Wilkins, the relevant decision-maker here, and that Irvine had shared his thoughts about plaintiff with Wilkins. (Id. ¶¶ 26, 28, 31) Moreover, Irvine's comments and discussions with others are relevant to the extent they show corporate hostility towards plaintiff up to and until his termination. See Malarkey v. Texaco, Inc., 983 F.2d 1204, 1210 (2d Cir. 1993) These facts distinguish this case from the case defendant cites Boyle v. McCann Erickson, 949 F. Supp. 1095 (S.D.N.Y. 1997), in which the alleged discriminatory statements were made by people who were not in any way involved in plaintiff's firing and who were no longer in contact with plaintiff or even employed by defendant at the time of his termination. Id. at 1102. Here, Irvine's comments are some direct evidence of retaliatory animus towards plaintiff. In addition, although there is a significant time gap between the protected activity and the adverse actions under consideration here, a rational jury could consider the timing and nature of Irvine's remarks and the pattern of plaintiff's treatment leading up to the timely allegations, and conclude that the circumstances give rise to an inference of a retaliatory motive.
Indeed, one of the bases for the Supreme Court's opinion is that Rule 8's pleading standard applies to all civil actions, with limited exceptions delineated in Rule 9(b). Just as Rule 9(b) does not refer to employment discrimination, neither does it mention retaliation. See id. at 998.
While claims relating to this treatment are time-barred, the treatment may still be admissible as relevant background evidence for the timely allegations. At this stage, the court considers all allegations in the complaint without regard to admissibility, and I reserve judgment on the issue of the admissibility of this evidence should this case proceed to trial. See Malarkey, 983 F.2d at 1211.
It may be that plaintiff will not ultimately be able to prove unlawful retaliation; at this stage of the litigation, however, plaintiff's burden is slight. I cannot say beyond doubt that plaintiff will be unable to prove facts that will entitle him to relief. Accordingly, defendant's motion to dismiss the Title VII and New York state retaliation claims on the pleadings is denied.
B. Discrimination
Plaintiff also claims disparate treatment on account of his race and national origin. The race-based claim is the predicate also for plaintiff's § 1981 claim, which requires the same analysis as a Title VII claim. See Martin v. Citibank N.A., 762 F.2d 212, 216-17 (2d Cir. 1985). Under the standard explicitly held to apply in Swierkiewicz, all that is required of an employment discrimination complaint is that plaintiff allege that he was subject to discrimination on account of his race and national origin in violation of specified laws, detail the events alleged to be adverse, and include the nationalities of at least some of the relevant persons involved in the adverse decisions. Swierkiewicz, 122 S.Ct. at 999. Plaintiff has done that here, and thus has given the defendant the requisite notice. Contrary to prior law in this Circuit, an employment discrimination complaint need not contain specific facts establishing a prima facie case of discrimination under the framework created by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). Id. Thus, defendant's argument that plaintiff fails to allege adequately a prima facie case in that he has not sufficiently alleged circumstances giving rise to a plausible inference of discriminatory intent, is inapposite. See id. Whether plaintiff can make a prima facie showing is a question for a later and evidentiary stage — that is, summary judgment or trial. Defendant's motion to dismiss plaintiff's Title VII, § 1981, and New York state law discrimination claims therefore is denied.
Section 1981 guarantees equal rights to make and enforce private employment contracts. See Lauture v. IBM, 216 F.3d 258 (2d Cir. 2000). It provides in pertinent part: "All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . . as is enjoyed by white citizens." 42 U.S.C. § 1981. Discrimination based solely on national origin is not actionable under § 1981, but plaintiff alleges also that he was subject to discrimination on the basis of his Hispanic ethnicity, which § 1981 does prohibit. See Lopez, 831 F.2d at 1188.
The prima facie case requires plaintiff to show: (1) membership in a protected class; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances giving rise to an inference of discrimination.
IV.
Plaintiff alleges also three common-law claims: negligent misrepresentation, breach of contract, and breach of the implied covenant of good faith and fair dealing. Defendant's motion to dismiss each of these claims for failure to state a claim is granted.
A. Negligent Misrepresentation
To state a claim for negligent misrepresentation, a plaintiff must allege that MetLife had a duty, based on a special relationship with plaintiff, to impart correct information; that MetLife provided plaintiff false information; and that plaintiff reasonably relied on such information. See Ellis v. Provident Life Accident Ins. Co., 3 F. Supp.2d 399, 411 (S.D.N.Y. 1998). Such a claim must be plead in accordance with the particularity requirement of Fed.R.Civ.P. 9(b). See id.
Plaintiff alleges that defendant falsely represented to him that promotions and salary increases would be based on credentials and job performance alone (and not on race, national origin, or the fact that he assisted another employee in a Title VII case), and that he reasonable relied on these statements to his detriment.
This allegation is insufficient to state a claim for two reasons. First, under New York law, the defendant must owe plaintiff a fiduciary duty in order to satisfy the special relationship. See Stewart v. Jackson Nash, 976 F.2d 86, 90 (2d Cir. 1992). The employer-employee relationship is not fiduciary in nature, see Ellis, 3 F. Supp.2d at 411, and plaintiff alleges no further facts from which to infer that such a relationship existed. Second, promises of future conduct cannot support a claim for negligent misrepresentation under New York law, unless plaintiff shows that the promises were made with a present intention not to perform the promised acts. See Murray v. Xerox Corp., 811 F.2d 118, 123 (2d Cir. 1987); Ellis, 3 F. Supp.2d at 411. Here, plaintiff alleges only that he was promised he "would be promoted" and that he "would be entitled to a pay increase" (Compl. ¶¶ 57, 58). Thus, plaintiff complains of no more than breach of promises of future conduct, which are not actionable as negligent misrepresentations. See id. This claim therefore is dismissed.
B. Breach of Contract
The complaint also fails to state a claim for breach of contract. Plaintiff contends that defendant breached its promises to promote and retain employees based solely on ability and performance, to give plaintiff an 8% merit increase, and to act on complaints under its own grievance procedures. (Compl. ¶¶ 49, 60, 61; Pl. Mem. at 14-15) However, plaintiff does not identify in the complaint the terms of any contract upon which any liability could be predicated. In New York, employment for an indefinite term is "presumed to be a hiring at-will which may be freely terminated by either party at any time for any reason or even no reason." Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 300, 461 N.Y.S.2d 232, 235 (1983); see also Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 514 N.Y.S.2d 209 (1987). New York courts are loath to infer terms in at-will contracts. Id. Plaintiff does not allege that an employment agreement for a fixed duration existed between himself and MetLife. Nor does he allege specifically that any of the alleged promises were part of his employment contract. Plaintiff cannot rely on a practice of giving salary increases, or the existence of a company policy on grievance procedures to establish an implied contract. See Boyle, 949 F. Supp. at 1108; Porras v. Montefiore Med. Ctr., 185 A.D.2d 784, 785-86, 588 N.Y.S.2d 135, 137-38 (1st Dep't 1992) Even accepting as true that plaintiff had been promised merit-based raises, there is no allegation that the promises were given as an inducement at the time of hiring or in exchange for continued employment, or that plaintiff relied on them to his detriment. See id.; see also Baron v. Port Authority, 271 F.3d 81, 85 (2d Cir. 2001); Sherman v. HarperCollins, No. 98 Civ. 2809, 1998 WL 437158 (S.D.N.Y. July 31, 1998) and cases cited therein; Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193 (1982). The alleged promises are therefore unenforceable.
Accordingly, the employment relationship at issue here was at will — i.e. there was no contractual limitation on MetLife's right to promote plaintiff, to raise his salary, or to terminate him without cause. Judge Koeltl's apt statement on this issue bears repeating:
Employers do not have the right to fire their employees in violation of statutory or constitutional mandates. However, such violations give rise to claims under those laws . . . themselves, they do not create a separate cause of action for breach of contract under New York law. Were it otherwise, any firing in violation of a statute or constitutional mandate would also give rise to a breach of contract claim.
Fry v. McCall, 945 F. Supp. 655, 667 (S.D.N.Y. 1996), quoted in Smith, 148 F. Supp.2d at 316. Plaintiff may seek a remedy under the statutes he invokes; he cannot find one under common law breach of contract.
C. Breach of the Implied Covenant of Good Faith and Fair Dealing
Nor does plaintiff state a cognizable claim for breach of the implied covenant of good faith and fair dealing. It is well settled that New York law does not recognize this cause of action for at-will employees. See Murphy, 58 N.Y.2d at 304-305, 461 N.Y.S.2d at 237 (1983), and its progeny. Because plaintiff has failed to allege that he was anything other than an at-will employee, his claim for breach of implied obligations cannot survive.
* * *
For the reasons set forth above, defendant's motion to dismiss plaintiff's complaint is granted with respect to plaintiff's common law claims and untimely statutory claims, and denied with respect to plaintiff's remaining statutory claims.
SO ORDERED: