Opinion
54545/2019
07-25-2019
Erika L. REXHOUSE, Plaintiff, v. CONCORDIA COLLEGE-NEW YORK FOUNDATION, INC., The Lutheran Church-Missouri Synod, Inc., John A. Nunes, Monique Nunes, Arlene Torres, Sherry Fraser, and Theresa Vidal, Defendants.
Robert B. Bernstein, Esq. Bernstein & Associates PLLC, 2 Overhill Road Suite 400, Scarsdale, NY 10583, for Plaintiff. Ward Greenberg Heller & Reidy LLP, 1800 Bausch & Lomb Place, Rochester, NY 14604, for Defendants.
Robert B. Bernstein, Esq. Bernstein & Associates PLLC, 2 Overhill Road Suite 400, Scarsdale, NY 10583, for Plaintiff.
Ward Greenberg Heller & Reidy LLP, 1800 Bausch & Lomb Place, Rochester, NY 14604, for Defendants.
Ruderman, J.
The following papers were considered in connection with the motion by defendants Concordia College s/h/a Concordia College-New York Foundation, Inc., John A. Nunes, Monique Nunes, Arlene Torres, Sherry Fraser, and Theresa Vidal, for an order pursuant to CPLR 3211 dismissing the complaint (sequence 1), and the cross-motion by plaintiff Erika Rexhouse, for an order pursuant to CPLR 3211(e), dismissing, striking, or denying the motion on the ground of untimeliness (sequence 2):
Papers Numbered
Notice of Motion, Affirmation, Exhibit 1, and
Memorandum of Law 1
Notice of Cross-Motion, Affirmation, Exhibits A - D, and
Memorandum of Law 2
Memorandum of Law in Opposition to Cross-Motion and in Reply on Motion 3
Plaintiff Erika Rexhouse commenced this action by summons and complaint filed on March 25, 2019, alleging that she was wrongfully discharged from her position at Concordia College ("Concordia" or the "College") in retaliation for engaging in protected whistleblowing activities, namely, reporting to her supervisor that Monique Nunes ("Nunes"), Concordia's Senior Director of Student Experience and the wife of Concordia's president, defendant John Nunes, had wrongfully obtained and attempted to obtain confidential information regarding students who sought on-campus mental health counseling, without the patients' consent.
The allegations of the complaint are as follows:
Plaintiff is a licensed clinical social worker who was hired on October 3, 2016 to serve as the Director of the Wellness Center at Concordia College. The Wellness Center offers mental health counseling services to students on campus.
During plaintiff's tenure at Concordia, its president, defendant John Nunes ("Dr. Nunes"), created a new position entitled Senior Director of Student Experience and appointed his wife to fill it. Plaintiff asserts, on information and belief, that Concordia amended its anti-nepotism policy at the same time, so as to provide that "[t]he administration of the College along with the director of human resources shall interpret and implement this policy, " which in effect allowed Dr. Nunes to hire his wife as long as he obtained the approval of the College's director of human resources, defendant Theresa Vidal.
Events Relating to the Patient No. 1 Incident
The complaint alleges that on Monday, September 24, 2018, at approximately 4:30 p.m., an individual identified as "Patient No. 1" called the Wellness Center, crying, and asked to make an appointment. That patient spoke with Abigail Anderson, a licensed clinical social worker who was employed part-time at the Wellness Center, reporting to plaintiff. When the patient did not arrive at the scheduled time, 6:00 p.m., Anderson called the patient's cell phone to check on her, and the patient reported that she was with Nunes, and asked for an appointment the next day. At 8:21 p.m. that night, Nunes texted plaintiff, asking for Anderson's cell phone number. After plaintiff checked with Anderson and learned about the events from earlier that day, she forwarded Anderson's cell phone number to Nunes. Nunes then called Anderson at approximately 8:45 p.m., indicating in a voicemail message that she wanted to speak with Anderson about Patient No. 1, specifically to "put the pieces together" and "get [her] take on" Patient No. 1. Anderson contacted plaintiff, and they agreed that Anderson would sent an email to Nunes, explaining that she is not permitted to disclose confidential information regarding persons who seek counseling from the Wellness Center. Anderson sent such an email the following morning.
The next morning, September 25, 2018, at 9:27 a.m., plaintiff was contacted by Laura Brezovsky, Concordia's director of incoming students and vocational planning, who, like Nunes, was not a licensed health care professional. Brezovsky inquired whether Patient No. 1 had an appointment at 10:00 a.m. Plaintiff replied that she could not answer that question due to confidentiality requirements.
Plaintiff then contacted defendant Arlene Torres, Concordia's vice-president for operations and its general counsel, at approximately 9:29 a.m. on September 25, 2018; because plaintiff believed that Patient No. 1 had withdrawn from the school as of September 21, 2018, she inquired whether a student who has withdrawn from the school is entitled to receive services from the Wellness Center. The two agreed that if Patient No. 1 appeared for the scheduled appointment, plaintiff would conduct a wellness check to ensure that Patient. No. 1 was not a threat to herself or others, and then, if needed, would refer the patient to an outpatient clinic. However, Patient No. 1 did not appear.
When plaintiff spoke with Nunes later that morning, Nunes asserted that she had reached out the previous night due to concern for Anderson's safety, and added that for the sake of plaintiff's own safety, she should not meet with Patient No. 1. Because Nunes had not mentioned security concerns in her voicemail message the previous night, and had not contacted campus security, plaintiff doubted her proffered rationale for reaching out to Anderson the previous evening, and suspected that Nunes had actually been seeking confidential information. She again contacted Torres, expressing concern that the college's administrative personnel generally needed a reminder that state law mandates that information pertaining to the mental health of students must be kept confidential, and restricted to health care practitioners.
On September 28, 2018, plaintiff again met with Torres, this time discussing her specific concerns about Nunes's apparent attempt to obtain confidential information about Patient No. 1. After that meeting, plaintiff was called by Vidal, who suggested that plaintiff file a complaint pursuant to the College's published whistleblower policy, expressing concern that under the policy, knowing about a privacy violation and not reporting it was itself a violation.
Plaintiff filed a whistleblower complaint with the College on October 1, 2018, and had a follow-up conversation with Torres and Vidal, who proposed a meeting with Nunes and defendant Sherry Fraser, the college provost. Plaintiff declined to include Nunes in the meeting. On October 15, 2018, plaintiff met with Vidal, Torres and Fraser, at which time she was asked to explain her assertion that this was not the first time Nunes had attempted to obtain confidential information. According to the complaint, plaintiff responded with examples of situations in which Nunes had taken control of decision-making regarding suicidal students, without involving the Wellness Center or mental health care providers, or where Nunes did not ensure that a student reported to be suicidal was evaluated by a mental health professional. The complaint continues, plaintiff also reported at that meeting that there had been at least six incidents during September 2018 when College officials who report to Nunes had attempted to obtain and/or disclose confidential information about students seeking treatment from the Wellness Center.
Vidal informed plaintiff that from that point on the supervisor to whom she should report would be Fraser instead of Nunes. Vidal then arranged another meeting, this time including Nunes, for November 9, 2018. At the November 9th meeting, the complaint reports, Nunes announced "I have rights" and stated that, with the assistance of outside counsel, she had compiled a report relating to plaintiff, focused on the "legal exposure of Concordia College" and plaintiff's ability to maintain her social work license. Nunes went page by page through a binder she brought, discussing incidents going back to September 2017 where students had been suicidal or hospitalized, and with respect to each, concluded that plaintiff had provided too much information. According to the complaint, Nunes also insisted at that meeting that in her position, she was qualified to provide the support that Concordia students needed, and that a mental health provider was not necessary.
With regard to the events of September 25th, Nunes explained that her use of the word "safety" did not refer to anyone's personal safety, but to her desire to protect the college, and that the reason she and Brezovsky had called was to tell plaintiff not to meet with Patient No. 1 because she was no longer an enrolled student.
Plaintiff contends that Nunes's actions on November 9, 2018, were intended to intimidate her, but that despite Concordia's whistleblower policy prohibiting retaliation, no one at the meeting took any steps to respond to that effort at intimidation. She alleges that Vidal also failed to notify the Board of Regents regarding plaintiff's filed whistleblower complaint against Nunes.
At a subsequent meeting with Vidal and Torres held on November 20, 2018, plaintiff alleges, Vidal told plaintiff that since Patient No. 1 had not been an enrolled student, and was therefore not entitled to mental health counseling, no one at the Wellness Center should have had anything to do with her, and plaintiff had not had all the facts to make an accurate complaint against Nunes. While Torres acknowledged to plaintiff that Nunes needed training regarding patient privacy laws, she also suggested that plaintiff "use this as an opportunity to develop skills to process and receive information."
Vidal prepared a written report, dated December 19, 2018, containing her findings and conclusion with respect to the whistleblower complaint plaintiff filed with the College on October 1, 2018. According to the complaint, although the report was addressed to plaintiff, it was not delivered to her at or around its stated date. Rather, on January 25, 2019, Vidal met with plaintiff to provide her with the written report. Plaintiff alleges that the report misrepresented her complaint, by failing to mention that Nunes had contacted the Wellness Center social worker to seek information regarding her earlier conversation with Patient No. 1, and by responding instead to a purported complaint that Nunes had interfered by preventing Patient No. 1 from keeping her appointment, and providing an explanation for that interference from two administrators who report directly to Nunes.
Events Arising Out of the Patient No. 2 Incident
It is alleged that on February 4, 2019, a student (Patient No. 2) arrived at the Wellness Center, requesting support. She was upset, crying, and was short of breath. She disclosed, for the first time to anyone, that she had been sexually abused by a family member, and was having flashbacks. Consistent with established protocol, plaintiff asked Patient No. 2 to walk with her to the student Health Services office to have her vitals checked and to create a plan. They entered an examination room at Health Services, where they spoke with the nurse serving as director of health services. In the course of the nurse's examination, Patient No. 2 began screaming and crying, and threw herself on the floor of the examination room. The head of campus security arrived, and plaintiff called 911. Shortly after an ambulance and police car arrived, Nunes and Fraser appeared at Health Services, and Nunes told the EMTs that she had been meeting weekly with Patient No. 2. Nunes asked questions about why Patient No. 2 was there, and somehow learned that the student had broken down after disclosing a history of sexual abuse. Nunes then entered the examination room and attempted to speak with Patient No. 2. The patient physically pushed Nunes out of the room.
On February 5, 2019, the complaint continues, Patient No. 2 appeared at the Wellness Center and wanted to discuss with plaintiff how Nunes had known on February 4th that she was in Health Services. Patient No. 2 was distressed because Nunes had learned about the details of her case, and was worried she would get in trouble because she pushed Nunes out of the examination room. Patient No. 2 asked plaintiff to accompany her to Nunes's office to apologize.
The following day, Dr. Nunes, the College president, told a nurse practitioner employed by the College that he had heard about the incident with Patient No. 2. Plaintiff reasons that Nunes told her husband about the incident in which Patient No. 2 sought mental health counseling, as well as the patient's reasons for doing so and the fact that she had experienced a breakdown while at the Health Services center.
When plaintiff met with Fraser for a regularly scheduled supervision meeting on February 6, 2019, plaintiff expressed concern about Nunes asking for, and obtaining, confidential information that Patient No. 2 had not shared with Nunes and did not want Nunes to know, namely, that Patient No. 2 had gone to the Wellness Center seeking mental health counseling, and that the need for counseling had been triggered by memories of sexual abuse.
On February 15, 2019, it was announced that Nunes was resigning her position as Senior Director of Student Experience, effective May 31, 2019.
On February 22, 2019, Fraser and Vidal informed plaintiff that because of financial restructuring, the College would no longer fund mental health services on campus, and that plaintiff was being terminated, effective immediately. Plaintiff expressed concern about the students who had appointments with her at the Wellness Center, and Vidal said that for ethical and legal reasons, plaintiff could not be permitted to "terminate with students." She was escorted off campus by campus security. Plaintiff states that while her name was quickly removed from the Wellness Center, the Center continued operating, without any licensed mental health providers on site. It is alleged that Laura Brezovsky, Concordia's vocational planning director who is a close associate of Nunes and Fraser, was put in charge of the Wellness Center; plaintiff asserts that while Brezovsky has a Master's degree in mental health counseling, she is not licensed, and, upon information and belief, she has not applied for a limited permit. Similarly, it is alleged, Concordia has assigned Nicholas Pohl to work in the Wellness Center, who, while he has a Master's degree in social work, is also unlicensed for providing mental health services.
This Action
Plaintiff brings causes of action under Labor Law §§ 740 and 741, as well as a cause of action for intentional infliction of emotional distress.
In seeking dismissal of the complaint, the moving defendants argue that there is no viable claim under either relied-on provision of the Labor Law, in the absence of a violation that threatens public health. As to the claim for infliction of emotional distress, they contend that by initiating this whistleblower action, plaintiff has waived her ability to pursue any related common law claims, and in any event, the conduct detailed in the complaint does not, as a matter of law, constitute the requisite extreme and outrageous conduct.
Plaintiff cross-moves to deny defendants' dismissal motion as untimely.
Analysis
The Cross-Motion to Deny Defendants' Motion as Untimely
The basis for the cross-motion is that the summons and complaint was served on March 27, 2019, and that therefore a responsive pleading or motion was due on April 16, 2018. While a motion to dismiss was initially efiled by the moving defendants on April 16, 2019, it lacked a return date; the corrected motion, this time with a return date, was filed on April 18, 2019. Plaintiff in effect takes the position that the original filing, while timely, was a nullity by virtue of the failure to include a return date, and that the corrected motion was untimely because it was filed two days late.
Plaintiff relies on case law holding that where a motion pursuant to CPLR 3211 to dismiss the complaint was not made within the time period in which those defendants were required to serve an answer, and no extension of time to make the motion was requested by those defendants or granted by the court pursuant to CPLR 2004, such a motion should be denied as untimely ( see e.g. Bennett v. Hucke , 64 AD3d 529 , 530 [2d Dept 2009] ). However, this Court need not apply that rule, because defendants timely served a dismissal motion, albeit without a return date. That omission does not render the noticed motion a nullity. It is not a jurisdictional defect, but, at worst, an irregularity that, under CPLR 2001, may be disregarded in the absence of substantial prejudice ( see Matter of Oneida Pub. Lib. Dist. v. Town Bd. of the Town of Verona , 153 AD3d 127, 130 [3d Dept 2017] ["the omission of a return date should have been disregarded as a mere technical infirmity"]; see also Harrington v. Brunson , 129 AD3d 1581 [4th Dept 2015] ).
Since substantial prejudice has not be alleged or shown, the cross-motion is therefore denied.
The Dismissal Motion - Labor Law § 740
Labor Law § 740 (2) (a) prohibits an employer from taking "any retaliatory personnel action against an employee" who discloses to a supervisor or 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." "A cause of action based upon Labor Law § 740, commonly known as the ‘whistleblower statute,’ is available ‘to an employee who discloses or threatens to disclose an employer activity or practice which (1) is in violation of a law, rule or regulation, and (2) creates a substantial and specific danger to the public health’ " ( Carillo v. Stony Brook Univ. , 119 AD3d 508, 508-509 [2d Dept 2014] ) .
Plaintiff alleges that Concordia, through Nunes, engaged in misconduct by demanding and obtaining information that had been offered in confidence to the Wellness Center's licensed social work staff by patients seeking mental health treatment, and that this misconduct endangered the health of the Concordia student body "because without confidentiality, those who need such counseling might never seek it and could become a danger to themselves and others," and because "those who seek such counseling, believing their privacy would be respected, might become a danger to themselves and others, if their information is not kept confidential."
Defendants argue first that plaintiff's complaint does not state a cause of action under Labor Law § 740 because the factual allegations of the complaint fail to support a claimed violation of a the statute relied on in the complaint, Public Health Law § 18. Next, defendants contend that the complaint fails to properly plead that the complained-of employer conduct "creates a substantial and specific danger to the public health."
Defendant must prevail on the second of these arguments, that the complained-of employer practice cannot serve as the basis for a Labor Law 740 claim, because as a matter of law it does not "create[ ] a substantial and specific danger to the public health." In the case of Easterson v. Long Is. Jewish Med. Ctr. (156 AD2d 636 [2d Dept 1989] ), the plaintiff, an Assistant Director of Nursing at the defendant's Employee Health Service Center, alleged that she was asked by an Associate Divisional Administrator for medical records from the file of an employee, and refused to provide those records absent a signed consent slip from the employee; she was then fired. The Court affirmed the dismissal of the plaintiff's Labor Law § 740 (2) (a) and (c) claims, observing that "both Labor Law § 740 (2) (a) and (c) require a substantial and specific danger to the public health" ( 156 AD2d at 637, citing Leibowitz v. Bank Leumi Trust Co. , 152 AD2d 169 [2d Dept 1989] ). The Court reasoned that "[e]ven assuming that the disclosure of the medical records was in violation of the cited provisions of the Education Law and regulations, the defendant's alleged wrongdoing did not threaten the health or safety of the public-at-large" ( 156 AD2d at 637 ).
Similarly, in Tomo v. Episcopal Health Servs., Inc. (85 AD3d 766 [2d Dept 2011] ), the plaintiff employee had criticized the employer's plans concerning the manner in which it secured patient records awaiting shredding, and its intention to install an electronic whiteboard, arguing that the plans would violate the privacy of confidential information. The Court held that the allegations did not support a cause of action for retaliation, explaining that the complained-of plans and practices "related to the privacy of confidential information[, and] [s]uch allegations cannot satisfy the element of a threat to public health and safety" ( id. at 768 ).
Under Tomo and Easterson , the challenged conduct by Concordia, through its agent Nunes, seeking the disclosure to her of confidential patient information, is similarly "related to the privacy of confidential information," (id. ), and as such cannot satisfy the element of a substantial threat to public health and safety required for a cause of action under Labor Law § 740.
Labor Law § 741Section 741 (2) of the Labor Law prohibits a health care employer from taking retaliatory action against a health care employee who "(a) discloses or threatens to disclose to a supervisor ... an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or (b) objects to ... any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care" ( Labor Law § 741 [2] [a], [b] ). The statute defines "improper quality of patient care" as "any practice, procedure, action or failure to act of an employer which violates any law, rule, regulation or declaratory ruling adopted pursuant to law, where such violation relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient" ( Labor Law § 741 [1] [d] ).
" Labor Law § 741, often referred to as the Health Care Whistleblower Law, offers special protection to health care employees who ‘perform[ ] health care services’ " ( Minogue v. Good Samaritan Hosp. , 100 AD3d 64, 69 [2d Dept 2012], quoting Labor Law § 741 [1] [a] ). "[S]ection 741 ... offers exceptional and specialized whistleblower protection over and above the generalized protection afforded by section 740" ( Reddington v Staten Is. Univ. Hosp. , 11 NY3d 80, 93 [2008] ). "A cause of action alleging a violation of Labor Law § 741 (2) differs from a cause of action alleging a violation of Labor Law § 740 (2) in that such a complaint is required to allege only a good faith, reasonable belief that there has been a violation of the applicable standards, rather than an actual violation" ( Pipia v. Nassau County , 34 AD3d 664, 666 [2d Dept 2006] ).
When we deem the factual allegations to be true, and giving plaintiff the benefit of all favorable inferences (see Leon v. Martinez , 84 NY2d 83, 87-88 [1994] ), the complaint in this matter sufficiently alleges a viable cause of action under Labor Law § 741. Initially, plaintiff qualifies to bring the claim, as an employee who performs health care services (in the field of mental health). The employer is one that provides health care services, as that term is defined by Labor Law § 741 (1) (b). Plaintiff disclosed or objected to a practice by an agent of the employer, as that term is defined by Labor Law § 741 (1) (c). And, it is sufficiently alleged that plaintiff, in good faith, reasonably believed that the complained-of practice, by which Nunes demanded that staff disclose to her confidential patient information, resulted in "improper quality of patient care," since the practice "relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient " ( Labor Law § 741 [1] [d] [emphasis added] ).
While this Court has determined, in the context of plaintiff's Labor Law § 740 claim, that Nunes's alleged practice of asking licensed staffers for patients' confidential information was not a practice that objectively posed a threat to public health and safety, nevertheless, a claim under Labor Law § 741 does not require an objective threat to public health and safety. Such a claim may be satisfied by a good faith, reasonable belief that the challenged practice poses a danger to public health or a threat to the health of a specific patient.
Here, the Court cannot reject as a matter of law a claim that plaintiff, as a licensed provider of mental health care services, reasonably believed, in good faith, that Nunes's challenged practice of demanding that patients' confidential information be disclosed to her posed a danger to the health or safety of the student body, or a threat to the mental health of specific patients. For example, it is alleged that Patient No. 2 had asked the Wellness Center for assistance because of her recall of past sexual abuse. It is also alleged that Patient No. 2 strongly, and physically, objected to Nunes's attempt to participate in her care and treatment. The possibility that that patient, or another patient like her, might react in an extreme or dangerous manner if her confidentiality was ignored, would have been a legitimate concern for plaintiff. It is frequently acknowledged that those who experienced the trauma of sexual abuse may suffer from a variety of distressing symptoms and behaviors (see People v. Taylor 75 NY2d 277, 285-287 [1990] ; People v. Carter , 151 AD3d 877, 878 [2d Dept 2017] ). They may be unusually vulnerable, psychologically impaired, or suffer suicidal ideation (see e.g. Elisa Poncz, Rethinking Child Advocacy after Roper v. Simmons: "Kids Are Just Different" and "Kids Are like Adults" Advocacy Strategies , 6 Cardozo Pub. L. Policy & Ethics J. 273, 334 [Spring 2008], citing Stefan C. Dombrowski, et al., Protecting Children from Online Sexual Predators: Technological, Psychoeducational, and Legal Considerations , 35 Prof. Psychol. 65, 65 [2004] ["sexual abuse can have an adverse impact on a child's cognitive, physical, academic, and psychological development. The outcomes of sexual abuse persist well into adulthood and often include higher levels of anxiety, depression, substance abuse, eating disorders, relationship problems, and suicidal ideation"] ).
Notably, the requisite claim of a "specific danger" or a "significant threat" need not mean that the challenged practice would result in physical harm. A claim was held to be sufficient under Labor Law § 741 in Ruiz v. Lenox Hill Hosp. (146 AD3d 605, 605 [1st Dept 2017] ), based on the allegation that, "contrary to accepted postoperative protocol that the lead surgeon report the results of a surgical procedure to the patient's family, Dr. Scheinerman [Chair of the defendant hospital's Department of Cardiovascular and Thoracic Surgery] reported the results of a valve implant procedure on which plaintiff had been the lead surgeon." Although the alleged misconduct there only involved improper reports to the patient's family, and could not have had a direct impact on the patient's physical condition, the Court allowed it as a proper basis for the Labor Law § 741 claim, observing that it was too soon to decide whether the misconduct could constitute improper care of the patient; it also emphasized that a Labor Law § 741 claim only requires a reasonable belief that the challenged conduct violated a law or rule.
Defendants' attempt to analogize the present matter to such cases as Pipia v. Nassau County (34 AD3d 664, 665-66 [2d Dept 2006] ) is misplaced. The alleged misconduct here is not comparable to the misconduct in Pipia , namely, improper and corrupt purchasing practices, which cannot support a Labor Law § 741 claim (see 34 AD3d at 665-66 ). Claimed misconduct may pose a substantial and specific danger to the public health or the health of a specific patient even if the type of care involved relates to the patients' mental rather than physical health.
Finally, while section 741, like section 740, includes a requirement that the employer's alleged complained-of practice violated a law, rule or regulation, "for pleading purposes [for a Labor Law § 741 cause of action], the complaint need not specify the actual law, rule or regulation violated, although it must identify the particular activities, policies or practices in which the employer allegedly engaged, so that the complaint provides the employer with notice of the alleged complained-of conduct" ( Von Maack v. Wyckoff Hgts. Med. Ctr. , 140 AD3d 1055, 1057 [2d Dept 2016] [bracketed phrase in original], quoting Webb-Weber v. Community Action for Human Servs. , 23 NY3d at 453 ). Consequently, this Court will not reach, in this context, the question of whether plaintiff correctly relied on Public Health Law § 18 as the law that Nunes's conduct violated. Regardless of how this Court ruled on that question, the cause of action could not be dismissed on that basis, since plaintiff would still have the right to identify another statute or rule in the course of the litigation. This renders a decision on that point now an impermissible advisory opinion (see generally Saratoga County Chamber of Commerce v. Pataki , 100 NY2d 801, 810 [2003] ).
For the foregoing reasons, the branch of defendants' motion to dismiss plaintiff's claim under Labor Law § 741 is therefore denied.
The Intentional Infliction of Emotional Distress Claim
As defendants contend, this common law cause of action must also be dismissed. First, it was waived by the institution of this action containing claims under Labor Law §§ 740 and 741. Subdivision 7 of Labor Law § 740 provides that "the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common law." "The mere commencement of an action under Labor Law § 740 (4) ... acts as an election of remedies, waiving other causes of action relating to the alleged retaliatory discharge, irrespective of the disposition of such claims" ( Pipia v. Nassau County , 34 AD3d at 667 ). "[T]he same waiver is effected by the institution of a cause of action alleging a violation of Labor Law § 741 (2)" (id. ).
The waiver effectuated by the institution of an action in accordance with Labor Law § 740 (4) has been held to only apply to causes of action relating to retaliatory discharge (see Kraus v. Brandstetter , 185 AD2d 302, 303 [2d Dept 1992] ["causes of action sounding in tort which are separate and independent from the cause of action to recover damages for retaliatory termination of employment" are not waived by commences a lawsuit pursuant to Labor Law § 740 ] ). In Kraus , the causes of action sounding in tort which were permissible because they were "separate and independent from the cause of action to recover damages for retaliatory termination of employment" were causes of action to recover damages for defamation based on the publication of a defamatory newsletter months before the plaintiff was fired (id. ).
Here, unlike in Kraus , the factual basis for plaintiff's common law claim consists of the same allegations as those supporting the Labor Law retaliatory termination claims.
Moreover, the claimed misconduct, however objectionable, does not qualify as "extreme and outrageous conduct" as is required for a cause of action for intentional infliction of emotional distress (see Howell v. New York Post Co. , 81 NY2d 115, 121 [1993] ). "The subject conduct must be 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" ( Klein v. Metropolitan Child Servs., Inc. , 100 AD3d 708, 710 [2d Dept 2012] [internal quotation marks and citations omitted] ). Even accepting as true the factual allegations of the complaint, they fail to support such a claim. The characterization of defendants' conduct as an abuse of a position of power does not serve to transform poor conduct into conduct "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency" (see id. ).
Fees
While Labor Law § 740 (6) allows for an award of fees to a prevailing defendant, in the discretion of the court, defendants have not entirely prevailed. In any event, defendants have not shown such an exercise of discretion to be appropriate. Notably, contrary to defendants' assertion, the complaint did not disclose identifying information about any student.
Accordingly, it is hereby
ORDERED that plaintiff's cross-motion is denied, and it is further
ORDERED that defendants' motion to dismiss the complaint is granted with respect to plaintiff's causes of action under Labor Law § 740 and based on a theory of intentional infliction of emotional distress, and is otherwise denied; and it is further
ORDERED that the parties are directed to appear on Monday, September 16, 2019 at 9:30 a.m., at the Preliminary Conference Part of the Westchester County Supreme Court, 111 Dr. Martin Luther King, Jr. Boulevard, room 811, White Plains, New York 10601.