Opinion
No. 02 CV 2932 (TPG).
November 23, 2005
OPINION
Plaintiff Robert R. Tebbenhoff brings suit against his former employer, Electronic Data Systems Corp. ("EDS"), and his former supervisor at EDS, Raymond Capuano. His main claim is for employment discrimination. Plaintiff alleges that he was terminated from EDS because of his disability in violation of New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101, et seq. Plaintiff also asserts a cause of action for intentional infliction of emotional distress, for actions allegedly taken by defendants in connection with his termination. Finally, plaintiff asserts causes of action for breach of contract and violation of New York Labor Law § 190 et seq., alleging that EDS failed to pay him certain commissions earned and business expenses incurred while he was at EDS. Jurisdiction is based upon diversity of citizenship.
Plaintiff also named EDS E-Solutions as a defendant in this action. EDS E-Solutions is not a legal entity but rather a line of business operated by EDS in 2001 and 2002. Plaintiff was not employed by EDS E-Solutions and, in fact, EDS E-Solutions had no employees. Therefore, the action is dismissed as to EDS E-Solutions.
The remaining defendants move for summary judgment. The motion is granted in part and denied in part.
FACTS
EDS sells various information technology products. In June 2000 EDS hired plaintiff as a sales person with a fixed yearly salary and commissions to be paid for the sale of EDS products and services. Plaintiff's direct supervisor, defendant Raymond Capuano, was EDS's Vice President and Regional Sales Leader in the Northeast Region for EDS's E-Solutions line of products. Robert Koffler was another Northeastern Region EDS sales manager.
Jurisdictional requirements for plaintiffs state law claims require some discussion of plaintiffs work location. Plaintiff is a New Jersey resident. Because his sales position at EDS required him to travel through the Mid-Atlantic region, it was convenient and efficient for him to work from home. According to defendants, plaintiff worked almost entirely from home. Plaintiff contends that while he did work from home "on occasion," he nevertheless "maintained a presence" at the New York City office where he was initially provided with office space and a computer. Throughout his tenure at EDS, however, plaintiff paid taxes as a New Jersey resident. Furthermore, after plaintiffs termination, he filed for New Jersey unemployment benefits, and indicated his work location as "Ramsey, New Jersey" in an application for New Jersey disability benefits.
Sales commissions at EDS were computed based upon a "cost model." The cost model was a computation that determined the pricing of EDS's products and services. Once the cost model was calculated and approved by EDS management, and the pricing incorporated in a sales contract, it would be submitted to EDS's business development office where it would be used to compute the responsible sales person's commission. Even after a commission had been computed, it could not be submitted to payroll for disbursement until approved by Capuano, Capuano's manager Marwan Rifka, and business manager Kevin Dolnick.
While employed with EDS, plaintiff made only one sale, in September 2000, to a company named Air Products Corp. The Air Products sale had two components, services and software. In January 2001 plaintiff received $3,820 as a commission for the software component of the Air Products sale. At some point after plaintiff received this $3,820 payment, a revised cost model for the Air Products deal was circulated within EDS. Under this revised cost model, an additional commission of nearly $14,000 would be due plaintiff for the software component of the Air Products sale. When plaintiff contacted the business development office to ask when he could expect to receive this additional commission, he was told that it would not be paid until approved by Rifka and Capuano. On February 20, 2001, EDS compensation and benefits employee Laura Farley emailed Capuano to ask where the "hold up" was on approving plaintiff's additional commission. In her email, Farley complained that plaintiff was accusing her office of "holding this deal for 4 months," and asked that Capuano speak with plaintiff.
In an email to Farley dated February 21, 2001 and copied to plaintiff, Capuano replied that management had not approved any additional commission for plaintiff and apologized for plaintiff's call. The following day, in an email addressed to his entire sales team including plaintiff, Capuano stated "You are not authorized to contact Laura Farley directly regarding commissions payments. . . . Under no circumstances are you to contact her directly."
Despite these instructions, plaintiff continued to contact Farley and others in the business development office to press the issue of his alleged outstanding commission. A February 28, 2001 email from Farley to plaintiff states that she is responding to a voice mail from plaintiff regarding his commissions. Emails dated mid-March also indicate that plaintiff contacted other employees in the EDS business development office regarding his sales commissions. Plaintiff claims that, after Capuano's February 22 email, Capuano gave him express permission to contact Farley regarding his sales commissions. After Capuano's email, however, plaintiff conspicuously neglected to copy Capuano on emails he sent regarding his anticipated commissions.
On January 2, 2001 plaintiff suffered a serious heart attack and was immediately hospitalized. He returned to work within two weeks. Shawn Urias, another EDS employee, claims to have heard Capuano make several negative comments about plaintiffs heart problems including that plaintiff was "faking" the extent of his medical condition and using it as an excuse for not performing. According to Urias, Capuano also remarked that it was an inopportune time for plaintiff to have taken ill "since the region had quite a high quota to meet and that having him out . . . would end up hurting the region if we couldn't meet our numbers." It is unclear from the record exactly when these alleged statements were made. Plaintiff himself, however, does not recall ever hearing anyone at EDS making derogatory statements about his heart attack.
In explaining the reasons for plaintiff's discharge, defendants focus primarily on his actions with regard to the relationship between EDS and a company named ARIBA. ARIBA was a "business partner" of EDS in the sense that EDS held licenses to sell various ARIBA information technology products and services along with its own. Plaintiff's work at EDS was focused exclusively on the sale of these licensed ARIBA products.
The relationship between ARIBA and EDS was somewhat strained. Although EDS was licensed to sell various ARIBA products, ARIBA maintained the right to sell those same products itself. This situation led to competition between the sales teams of the two companies, often for the same customers. Because plaintiff focused on the sale of ARIBA products, this competition affected him acutely and plaintiff complained from time to time about being "squeezed out" of software sales by ARIBA sales people, who would receive a larger commission if they could close a deal without plaintiff's involvement. Despite these tensions, however, plaintiff understood that he was responsible for working closely with ARIBA, and recognized that he was expected to foster a good relationship between EDS and ARIBA.
On March 8, 2001, Capuano received an email from ARIBA employee Marie Floria informing him that ARIBA salesperson Chris Powers had been "betrayed" by plaintiff in their joint sales effort directed to potential customer Mellon Bank. The email stated that plaintiff had revealed pricing information to Mellon Bank after agreeing with Powers not to do so. The email stated:
Chris gave Bob [Tebbenhoff] the lead. Bob told us that at some point Chris told him not to give pricing. . . . Chris wanted to present pricing with Tebbenhoff which he said Bob agreed to. Bob called Mellon on his own. When Bob talked to Mellon he referenced the price they were quoted by Ariba. The customer was horrified that his rep from Ariba (with whom he had built strong relationship) would do that. The word collusion was mentioned. Actually Tebbenhoff told me the customer said that. Chris called Mellon and the customer asked him if he had told anyone his numbers (he did not know if Tebbenhoff had given pricing at the point). He replied `no'. The customer caught him in a lie and it destroyed his position and his relationship.
Chris is not willing to lose commission or be betrayed again. I . . . assured him that Bob was not going to be in any of his deals going forward.
Although this was not the first time tension arose between the two companies, defendants saw this complaint of "collusion" as a particularly serious threat to its relationship with ARIBA. As a result, a meeting was held with Capuano, Koffler, Floria, and certain senior ARIBA officers in attendance. Defendants maintain that this meeting was Capuano's altruistic idea to "assist plaintiff in mending his damaged relationship with ARIBA," an assertion that plaintiff disputes. In any event, the parties agree that, at the meeting, Capuano and Koffler attempted to defend plaintiff to the ARIBA sales executives. The meeting wound up with an agreement that another meeting would be held between all of the same parties but now including plaintiff, with the purpose of ensuring that they were "all on the same page going forward so that plaintiff would understand and utilize a sales strategy agreed to by both companies."
In anticipation of this EDS-ARIBA meeting, Capuano set up a preliminary face-to-face meeting with plaintiff, scheduled for March 14, 2001, to discuss ARIBA's complaints about plaintiff and to explain that ARIBA management had agreed to have a meeting with all in attendance to discuss these issues. On March 12, 2001, plaintiff informed Koffler that he would be meeting with his doctor on March 15, 2001 about the possibility of undergoing an additional medical procedure related to his heart condition, and that he might need to take a short term disability leave if it was determined that the procedure was necessary. Koffler thereafter relayed this information to Capuano.
On March 14, 2001, Capuano, Koffler, and EDS human resources employee Rukshana Mazagonwalla met with plaintiff, now for the dual purpose of both reviewing the ARIBA issue with plaintiff and discussing plaintiff's potential need to take a short term disability leave should his doctor so advise. At this meeting, Capuano explained the ARIBA representatives' problems with plaintiff and that he had "brokered" a meeting with the ARIBA executives. It is undisputed that, at this meeting, Capuano instructed plaintiff not to approach ARIBA sales representatives directly to address ARIBA's complaint, but rather to wait for the meeting with the ARIBA executives. At this meeting, Capuano also indicated that he and Koffler would call plaintiff on March 16 to discuss the results of plaintiff's March 15 doctor's visit
Despite the very clear instructions from Capuano not to contact any ARIBA sales representatives directly, on the very same day, plaintiff called ARIBA employee Floria and stated that he was concerned with ARIBA's perception of him and wanted to speak directly with the ARIBA representatives. Shortly thereafter, Floria notified Koffler of plaintiff's call. According to Koffler, Floria recounted that plaintiff told her that, regardless of the upcoming meeting, he was going to contact the ARIBA sales representatives directly on his own. Koffler immediately notified Capuano of what he viewed as plaintiff's insubordinate conduct in calling Floria to express his wish to contact the ARIBA sales employees directly.
Plaintiff met with his physician as scheduled on March 15, 2001. At that time his doctor recommended that he undergo an angioplasty and explained that he would need to take a short-term disability leave. Plaintiff did not notify Koffler or Capuano of this determination prior to their phone conversation the next day. On the following morning of March 16, 2001, Capuano and Koffler called plaintiff and notified him that he was terminated due to "long term insubordination." Prior to terminating plaintiff, Capuano accused him of leaving a nasty message on Mazagonwalla's voice mail, and renewed his accusation that plaintiff acted improperly in contacting Farley regarding his commission after being instructed not to do so.
Plaintiff first instituted this lawsuit in New York State Supreme Court. The case was removed to this court on April 16, 2002 based on diversity of citizenship.
DISCUSSION
Summary judgment is appropriate if there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law. Fed.R.Civ.P. 56(c). If the evidence is such that a reasonable jury could return a verdict for the nonmoving party, summary judgment will not lie. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The burden is on the moving party to establish the absence of any material factual issues, and all ambiguities and permissible fact inferences must be drawn in favor of the nonmoving party. Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003).
However, "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, supra at 247-48. The nonmoving party may not rely on conclusory allegations or unsubstantiated speculation. Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). Rather, to defeat a motion, "there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, supra at 252.
1. Plaintiff's Claims Under the New York State Human Rights Law
Plaintiff asserts his First Cause of Action and part of his Third Cause of Action under the NYSHRL, which makes it an unlawful discriminatory practice for an employer to discharge an employee because of his or her disability. NY Exec. Law § 296. Defendants assert that the NYSHRL does not apply to a non-resident claiming discriminatory conduct committed outside New York. It is undisputed that plaintiff is not a New York resident. Defendants claim that the alleged discriminatory conduct was committed outside New York because plaintiff was located in New Jersey when he was terminated.
It is true that the NYSHRL does not provide a non-resident with a private cause of action for discriminatory conduct committed outside of New York. Absent an allegation that "a discriminatory act was committed in New York or that a New York State resident was discriminated against, New York's courts have no subject matter jurisdiction over the alleged wrong." Iwankow v. Mobil Corp., 150 A.D.2d 272, 274 (N.Y.App.Div. 1st Dep't 1989)
Here, defendants' conduct within New York is sufficient to satisfy the NYSHRL's jurisdictional requirement. First, it is undisputed that defendant Capuano was actually located in New York when he called to terminate plaintiff. Furthermore, the decision to terminate plaintiff was made in New York. The fact that a decision to discriminatorily terminate a non-resident was made in New York can alone suffice to state a claim under NYSHRL.Torrico v. IBM, 319 F. Supp. 2d 390, 399 (S.D.N.Y. 2004). The fact that the impact of plaintiff's termination may have been felt in New Jersey does not alter this result. See id. For these reasons, plaintiff's action falls within the jurisdictional bounds of the NYSHRL.
2. Plaintiff's Claims Under New York City Human Rights Law
Plaintiff asserts his Second Cause of Action and part of his Third Cause of Action under the NYCHRL. Defendants challenge these claims, asserting that they are beyond the reach of that law. Like the NYSHRL, the NYCHRL makes it unlawful for an employer to discharge an employee because of his or her disability. NYC Administrative Code § 8-107. Defendants state that the NYCHRL applies only when the actual impact of the discriminatory conduct or decision is felt within the five boroughs and that, because plaintiff worked mostly in New Jersey, his termination had its major impact there.
Defendants cite cases standing for the proposition that a discriminatory decision made in New York City cannot alone support a claim under the NYCHRL when no impact from that decision is felt in New York City. See Lucas v. Pathfinder's Pers., Inc., 01-CV-2252, 2002 U.S. Dist. LEXIS 8529 (S.D.N.Y. 2002); Lightfoot v. Union Carbide Corp., 92-CV-6411, 1994 U.S. Dist. LEXIS 6191 at *16 (S.D.N.Y. May 12, 1994).
Unlike those cases, however, here a discriminatory act was committed within New York City when defendant Capuano called and terminated plaintiff from defendants' New York City offices.See Launer v. Buena Vista Winery, 916 F. Supp. 204, 214 (E.D.N.Y. 1996) (allowing NYCHRL action to proceed because the plaintiff's "firing occurred in New York"). Furthermore, as plaintiff was given an office in New York City, and business cards indicating New York City to be his central business location, his termination cannot be said to have had no impact within New York City. Plaintiff may therefore proceed under the NYCHRL.
3. The Merits of Plaintiff's Disability Discrimination Claim under the NYSHRL and NYCHRL
a. The Burden Shifting Analysis
Discriminatory termination claims under the NYSHRL and NYCHRL are analyzed by applying the same three-part burden shifting test developed by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792 (1973), for evaluating such claims under Title VII.See Dawson v. Bumble Bumble, 398 F.3d 211, 224 (2d Cir. 2005). Under this analysis, the plaintiff has the initial burden to establish a prima facie case, which requires him to show that: (1) the defendants are subject to the NYSHRL or NYCHRL; (2) he was disabled within the meaning of those laws; (3) he was qualified to perform the essential functions of his job, perhaps with reasonable accommodation; and (4) he suffered adverse employment action because of his disability. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
If the plaintiff successfully makes this showing, the burden then shifts to the employer to articulate a legitimate, non-discriminatory reason for the plaintiff's termination. Id. If the employer articulates such a non-discriminatory reason, the plaintiff must then come forward with evidence that the defendant's proffered, non-discriminatory reason is a mere pretext for actual discrimination. Id. The plaintiff must "produce not simply "some evidence, but `sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that, more likely than not, discrimination was the real reason for the employment action.'" Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996). The "ultimate burden" of persuading the trier of fact that the defendant intentionally discriminated . . . remains at all times with the plaintiff. James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
b. Plaintiff has Met His Initial Burden Under the NYSHRL and NYCHRL
For purposes of the present motion both parties assume that plaintiff can satisfy the first three parts of his prima facie case. The court agrees, and finds that plaintiff has established these three elements. First, as discussed above, defendants' actions are subject to both the NYSHRL and NYCHRL. Second, plaintiff's heart condition qualifies as a disability under the broad definitions given that term by the NYSHRL and NYCHRL. See N.Y. Exec. Law § 292(21); N.Y.C. Admin. Code § 8-102(16). Finally, plaintiff's employment history and work qualifications demonstrate that he was qualified for his job.
The parties therefore focus on the fourth prong of plaintiff's prima facie case, the causation requirement. This requires plaintiff to show that he was terminated because of his disability. Argueta v. N. Shore Long Island Jewish Health Sys., 01-CV-4031, 2003 U.S. Dist. LEXIS 20456 at *20-21 (E.D.N.Y. 2003).
The burden that must be met by an employment discrimination plaintiff to survive a summary judgment motion at the prima facie stage is de minimis. Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 94 (2d Cir. 2001); James v. New York Racing Ass'n, 233 F.3d 149, 153 (2d Cir. 2000).
Plaintiff's prima facie showing of causation boils down to essentially three points. First, plaintiff asserts that, at the time he was terminated, defendants either knew or were aware of the strong possibility that he might soon require short-term disability leave.
Second, plaintiff claims that Capuano and Koffler were concerned about the consequences that accommodating plaintiff with medical leave would have on their ability to meet the EDS Northeastern Division sales quota. As evidence of this concern, plaintiff cites an email from Koffler indicating that plaintiff's absence would "leave us severely understaffed" and an alleged statement by Capuano that plaintiff's illness came at a bad time because "the region had quite a high quota to meet." Finally, plaintiff avers that soon after his heart attack EDS hired Jon Sunstrom, a non-disabled employee, to replace him due to his heart attack.
Defendants deny that plaintiff's termination was related to his heart condition or potential need for disability leave. It is undisputed that Capuano terminated Northeastern region sales employee Ike Putterman just days prior to plaintiff's termination, and then, approximately two weeks later, terminated sales employee James Hanfling. Defendants argue that had they truly been concerned about their inability to meet their sales quota due to plaintiff's potential disability leave, they would not have terminated two other sales employees within days of plaintiff's discharge.
Defendants also dispute plaintiff's assertion that Sunstrom's hiring was related to plaintiff's disability or his potential need for short term disability leave. Defendants note that when EDS hired Sunstrom on March 8, 2001, plaintiff had not yet informed anyone at EDS that there was even a remote possibility of his taking disability leave.
Although defendants surely raise an issue about whether plaintiff has met his prima facie burden on causation, since only a minimal showing is required at this stage, the court finds that plaintiff has met that burden. This leads to the next question (and the one which is critical in the present case) as to whether defendants have articulated a legitimate non-discriminatory reason for terminating plaintiff.
c. Defendants have Articulated Legitimate Nondiscriminatory Reasons for Plaintiff's Termination
Defendants assert that plaintiff's termination was the result of his repeated acts of insubordinate behavior in refusing to follow the direction of his immediate supervisor Capuano, both regarding his sales commissions and, even more importantly, following the serious complaint lodged against him by ARIBA.
First, defendants assert that despite being warned in writing not to contact Farley or any other EDS employees beside Capuano with regard to his sales commissions, plaintiff disregarded those instructions and repeatedly contacted Farley and others to ask about his commission.
Even more troublesome to defendants were plaintiff's dealings with ARIBA. Plaintiff does not dispute the fact that the March 8, 2001 email from ARIBA employee Floria contained serious complaints against him including that he "betrayed" an ARIBA sales person and that, as a result, ARIBA was accused of "collusion." Nor does plaintiff dispute that this conduct threatened to harm the valuable relationship EDS had with ARIBA. Furthermore, plaintiff ascribes no improper motives to the email's author Floria.
Ultimately, though, plaintiff was discharged not because of ARIBA's complaint, but rather because of his failure, for the second time, to follow the direct instructions of his supervisor; instructions that were intended to help plaintiff ameliorate the tension that had developed between him and the ARIBA sales staff. After the March 8, 2001 email complaint from Floria, Capuano arranged a meeting between himself, plaintiff, Koffler, and senior ARIBA management to discuss ARIBA's concerns about plaintiff. Prior to that meeting, Capuano and Koffler specifically warned plaintiff not to address any issues with the ARIBA sales force directly, but rather to wait for the meeting Capuano had arranged. Despite these instructions, on the very same day, plaintiff called Floria and expressed his desire and intention to directly contact ARIBA sales employees regarding their concerns. Under these facts, defendants have more than met their burden to set forth legitimate nondiscriminatory reasons for plaintiff's termination.
d. Plaintiff has Failed Show that Defendants' Legitimate Non-Discriminatory Reasons for Terminating him were Pretextual
As described above, once a defendant articulates a legitimate, non-discriminatory explanation for terminating its employee, the plaintiff must raise a genuine issue concerning whether the employer's proffered reason was pre-textual and whether the true reason for the adverse employment decision was more likely than not the illegal discrimination alleged by the plaintiff. Here, plaintiff has done neither.
Much of plaintiff's response to defendants' reasons for terminating him is simply irrelevant. Plaintiff attempts to explain his behavior by reference to the "complex" and difficult EDS-ARIBA relationship and the fact that he and other EDS sales people had in the past been "squeezed out by self serving ARIBA sales people." These arguments are beside the point. Regardless of who was more at fault for the troubles between ARIBA and EDS generally, it is undisputed that plaintiff contributed to the tension between the two firms, both by his initial "betrayal" of an ARIBA sales person, and by later refusing to follow his supervisor's instructions regarding how to ameliorate the situation. The court is not in a position to substitute its judgment for that of the EDS management in deciding whether plaintiff or the ARIBA sales staff was at fault or how best to remedy the situation. Argueta v. N. Shore Long Island Jewish Health Sys., 01-CV-4031, 2003 U.S. Dist. LEXIS 20456 at *13 (E.D.N.Y. 2003).
Plaintiff admits that despite being told by Capuano not to attempt to approach the ARIBA sales representatives directly with respect to ARIBA's complaints against plaintiff, he contacted Floria, an ARIBA employee, on the very same day and told her that he wanted to do just that. Plaintiff contends that he never disobeyed orders because he did not actually contact any ARIBA employees. Plaintiff states that although he "desired" to contact the ARIBA sales staff directly and expressed that desire to Floria, he did not "intend" to do so. This argument is just a matter of semantics. Plaintiff's call to Floria was precisely what Capuano was trying to avoid; it put her in an "uncomfortable position" vis-à-vis the ARIBA-EDS relationship. Defendants were not required to stand by quietly while plaintiff threatened to contravene their direct instructions.
Plaintiff points to two instances in which he alleges Capuano stated that he was "faking" his heart attack. Such allegations are insufficient to support his discrimination claim. See Danzer v. Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998) ("Stray remarks, even if made by a decision maker, do not constitute sufficient evidence [to support] a case of employment discrimination."); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000) (evidence of one stray comment by itself is usually not sufficient proof to show discrimination).
Plaintiff has failed to show that defendants' proffered reasons for terminating him are pretextual or that defendants in fact had any discriminatory motive for terminating him. His discrimination claim therefore fails.
4. Plaintiff's Claim for Intentional Infliction of Emotional Distress
Plaintiff's Seventh Cause of Action is for intentional infliction of emotional distress. Under New York law, a claim for intentional infliction of emotional distress requires a showing of (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress. Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999).
"Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community.'"Chimarev v. TD Waterhouse Investor Servs., 280 F. Supp. 2d 208, 227 (S.D.N.Y. 2003) aff'd, 99 Fed. Appx. 259 (2d Cir. 2004) (quoting Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303 (1983)).
Plaintiff bases his claim for intentional infliction of emotional distress on defendants' actions in terminating him, signing a complaint with the New York Police Department ("NYPD") for the return of plaintiff's company laptop, canceling his medical benefits, and allegedly threatening a headhunter to withdraw EDS business if he assisted plaintiff in finding new employment.
New York courts have been generally unwilling to sustain claims for intentional infliction of emotional distress in connection with allegations of employment discrimination on the basis of disability. Stuto, 164 F.3d at 827; Lichtenstein v. Triarc Cos., 02-CV-2626, 2004 U.S. Dist. LEXIS 8610, *32-33 (S.D.N.Y. 2004) ("Plaintiff should not be allowed to . . . subvert the traditional at-will contract rule by casting his cause of action in terms of a tort of intentional infliction of emotional distress")
Cases in which such claims have been upheld all involved some combination of public humiliation, false accusations of criminal or heinous conduct, verbal abuse or harassment, physical threats, permanent loss of employment, or conduct contrary to public policy. Stuto, supra at 828. See, e.g., Kaminski v. UPS, 120 A.D.2d 409 (N.Y.App.Div. 1st Dep't 1986) (false accusation of theft, false imprisonment, verbal abuse, and threat of prosecution resulted in coerced confession and resignation).
As a matter of law, plaintiff's allegations do not rise to the level of outrageous conduct necessary to sustain a claim for intentional infliction of emotional distress. As discussed above, plaintiff has failed to show that he was, in fact, terminated on the basis of his disability. His termination itself may therefore not serve as a basis for a claim of intentional infliction of emotional distress. Furthermore, Capuano filed his complaint with the NYPD only after multiple requests for the return of plaintiff's company laptop went unanswered, and when the laptop was returned, EDS dropped its complaint.
Finally, plaintiff's claims that Capuano warned his headhunter not to assist him in finding new employment and terminated his medical benefits are insufficient to support a cause of action for intentional infliction of emotional distress. In Murphy, supra, the court held that allegations that plaintiff was transferred and demoted for reporting fraud, coerced to leave by being told that he would never be allowed to advance, discharged and ordered to leave immediately after reporting other alleged in-house illegal conduct, and then forcibly and publicly escorted from the building by guards when he returned the next day to pick up his belongings fell "far short" of the tort's "strict standard" for outrageous behavior. 58 N.Y.2d at 303. In Burlew v. American Mut. Ins. Co., 63 N.Y.2d 412, 415, 417-18 (1984), the defendant's intentional five-month delay in authorizing needed surgery in connection with plaintiff's worker's compensation claim was found not to be sufficiently extreme or outrageous to state a claim for intentional infliction of emotional distress. These cases demonstrate the very extreme conduct required by New York courts to be sufficient for a claim of intentional infliction of emotional distress. As a matter of law, defendants alleged actions do not meet that threshold.
5. Plaintiff's Claims for Unpaid Sales Commissions on the Air Products Sale and Reimbursement for Business Expenses
Plaintiff's Fourth, Fifth, and Sixth Causes of Action assert claims for unpaid sales commissions and reimbursement of business expenses plaintiff allegedly incurred while at EDS. The record is not sufficient to resolve these claims of plaintiff. Summary judgment cannot be granted on these claims. However, it is doubtful that a trial will be necessary. The court will confer with counsel about how to dispose of these claims properly.
CONCLUSION
For the foregoing reasons, defendants' motion is granted as to plaintiffs First, Second, Third, and Seventh Causes of Action, which are dismissed, and is denied as to the Fourth, Fifth, and Sixth Causes of Action.
SO ORDERED