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finding that the plaintiffs' allegation that she was excluded from certain social functions and other employees were given preferential treatment "simply do not rise to the level requisite for a claim of emotional distress"
Summary of this case from Garnett-Bishop v. N.Y. Cmty. Bancorp, Inc.Opinion
No. 11 Civ. 5093 (CM)
10-04-2012
KIMBERLY M. ZICK Plaintiff, v. THE WATERFRONT COMMISSION OF NEW YORK HARBOR, and WALTER ARSENAULT, Defendants.
DECISION AND ORDER GRANTING DEFENDANTS' MOTION TO DISMISS PLAINTIFF'S COMPLAINT
:
INTRODUCTION
On July 25, 2011, Kimberly M. Zick ("Zick" or "Plaintiff") commenced this action against the Waterfront Commission of New York Harbor (the "Commission") and Walter Arsenault ("Arsenault") (collectively, "Defendants"), alleging employment discrimination, intentional infliction of emotional distress, and constructive discharge. Specifically, Plaintiff alleges that, after suffering a broken leg, she was unlawfully fired from her position at the Commission in violation of the Americans with Disabilities Act ("ADA") and the Rehabilitation Act of 1973 (the "Rehabilitation Act"). Plaintiff also claims that she was subject to unfair treatment throughout her employment at the Commission, rising to the level of constructive discharge, presumably under Title VII of the Civil Rights Act of 1964 ("Title VII"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"), although Plaintiff does not so specify. Last, she asserts that Defendants' conduct caused her severe emotional distress.
Defendants now move, pursuant to Federal Rule 12(b)(6), to dismiss the complaint in its entirety. Defendants claim that Plaintiff's injury does not qualify as a "disability" for the purposes of the ADA and that Plaintiff's emotional distress and constructive discharge claims are improperly pled, presumably under Title VII, the NYSHRL, and the NYCHRL.
For the reasons discussed below, Defendants' motion to dismiss is GRANTED in its entirety, and Plaintiffs' complaint is DISMISSED with prejudice.
BACKGROUND
1. Facts
a. The Parties
Plaintiff is a resident of the State of New York, currently residing in the Bronx, New York. Plaintiff, an attorney, was employed by Defendant Waterfront Commission of New York Harbor as Assistant Counsel from April 16, 2007 until June 10, 2010.
Defendant Commission is a bi-state agency duly organized and existing under the laws of the States of New York and New Jersey. The Commission was created to investigate and combat criminal activity in the Ports of New York and New Jersey.
Defendant Arsenault is the Executive Director of the Commission. The complaint does not specify the state in which Arsenault is domiciled.
b. Plaintiff Claims Other Employees Received Preferential Treatment
On April 16, 2007, Zick began her employment as an Assistant Counsel in the Manhattan office of the Commission. (Compl. ¶ 11.) Zick alleges that she performed her job at the Commission "in a most competent manner, having never been the subject of discipline." (Id. ¶ 12.)
During April of 2009, Zick alleges that Michelle Demeri ("Demeri"), a female coworker and newly appointed Assistant Counsel, and "Cindy," a friend of Demeri, were treated more favorably than Plaintiff. (Id. ¶ 13.) These "acts of favoritism" include Demeri receiving assignments that Zick perceived to be more favorable and Dermeri having the option and discretion to work from either the Brooklyn or Manhattan locations. (Id.) Zick also claims that Cindy, a non-employee, was allowed "free reign of the office," and that Cindy and Demeri both had Arsenault's cell phone number. (Id.) Additionally, Zick alleges that she witnessed "inappropriate talk and physical gestures" between Cindy and Arsenault. (Id.)
Zick alleges witnessing other "acts of favoritism" in February 2010. She claims that Arsenault invited other co-workers out for a drink celebrating his birthday and excluded her, despite the fact that she was standing in front of Arsenault when he extended invitations to other employees. (Id. ¶ 14.)
Zick further claims that, around this same time, she asked her superiors why she was not receiving specific cases. (Id. ¶ 15.) Zick claims her superiors told her that she should not concern herself with the assignments given to other attorneys. (Id.) Zick also alleges that in response to this inquiry, she was told that "she should begin to choose her work over her family's needs." (Id.)
Zick also alleges that she was reprimanded for having a non-work-related conversation with a co-worker in the office, and was told not to have such conversations during business hours and to remain in her office "unless work required otherwise." (Id. ¶ 16.) Zick claims that Demeri, a female employee, and Travis Hunter, another employee, often had such conversations behind closed office doors, but were never similarly reprimanded. (Id.)
c. Plaintiff's Injury
On April 7, 2010, Zick fell and broke two bones in her right leg, which required a cast and the use of crutches. (Id. ¶ 17.) Zick alleges that, because of the injury, her doctor advised her to remain at home for eight to ten weeks and to keep her right leg elevated as much as possible. (Id.)
On April 14, 2010, Zick requested to work from home, but was initially denied. (Id. ¶ 18.) However, Arsenault later granted this accommodation on April 20. On April 28, Zick was driven to her office to retrieve files and a Commission-issued laptop, enabling her to work from home. (Id. ¶ 20.)
While working from home, Zick alleges that she was subjected to poor treatment. Particularly, Zick alleges that she was reprimanded for being "off-line" and was not invited to Commission Law Division meetings and phone conferences. (Id. ¶ 21.)
In May, Zick alleges that she learned from "other employees" that Arsenault did not want her returning to the Commission. (Id. ¶ 22.)
d. Plaintiff's Termination
On June 17, 2010, Zick met with Arsenault to discuss her return to the Commission. (Id. ¶ 23.) At this meeting, Zick alleges she was "threatened, berated, and questioned" about leaving her home to shop for groceries and attend doctor appointments. (Id.) Zick was informed that she had been under police surveillance while she was purportedly working from home, and was observed running errands. (Id. ¶ 24; Defs.' Mot. to Dismiss at 4.) Zick was given the option of resigning or, in the event that she did not resign by 9 A.M. the next morning, being suspended. (Compl. ¶ 23.) Zick alleges that Arsenault also threatened to have her bar license removed. (Id.) Based on this meeting, Zick chose to resign. (Id.)
2. Procedural History
On April 25, 2011, Plaintiff received a right to sue letter from the Equal Employment Opportunity Commission. (Id. ¶ 8.)
On July 25, 2011, Plaintiff filed this complaint against the Commission and Arsenault for violating the ADA, intentional infliction of emotional distress, and constructive discharge, presumably under Title VII, the NYSHRL, and the NYCHRL. Defendants now move, pursuant to Federal Rule 12(b)(6), to dismiss Plaintiffs' complaint.
In her opposition, Plaintiff alleges new facts not in the complaint. However, "New claims not specifically asserted in the complaint may not be considered by courts when deciding a motion to dismiss." Berenstein v. City of N.Y., No. 06 Civ. 895, 2007 WL 1573910, at *10 (S.D.N.Y. May 24, 2007) (quoting Lerner v. Forster, 240 F. Supp. 2d 233, 241 (E.D.N.Y. 2003)) (internal quotation marks omitted); see also Southwick Clothing LLC v. GFT (USA) Corp., No. 99 Civ. 10452, 2004 WL 2914093, at *6 (S.D.N.Y. Dec. 15, 2004) ("A complaint cannot be amended merely by raising new facts and theories in plaintiffs' opposition papers. . . ."). Thus, I do not consider any new facts Plaintiff alleges in her opposition. Furthermore, these new facts would not change this decision, were I to consider them.
DISCUSSION
1. Standard for a Motion to Dismiss
To survive a motion to dismiss, "a complaint must contain sufficient factual matter . . . to 'state a claim to relief that is plausible on its face.'" Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). "A claim has facial plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Id. (citing Twombly, 550 U.S. at 556). "While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do." Twombly, 550 U.S. at 555 (internal citations, quotation marks, and alterations omitted). Thus, unless a plaintiff's well-pleaded allegations have "nudged [her] claims across the line from conceivable to plausible, [the plaintiff's] complaint must be dismissed." Id. at 570; Iqbal, 556 U.S. at 680.
In Swierkiewicz v. Sorema, 534 U.S. 506 (2002), the Supreme Court held that plaintiffs need not plead a prima facie discrimination claim to withstand Rule 12(b)(6) dismissal. Twombly, however, explicitly left Swierkiewicz intact. Twombly, 550 U.S. at 555. Reconciling the two, "a complaint need not establish a prima facie case of employment discrimination to survive a motion to dismiss; however, 'the claim must be facially plausible and must give fair notice to the defendants of the basis for the claim.'" Barbosa v. Continuum Health Partners, Inc., 716 F. Supp. 2d 210, 215 (S.D.N.Y. 2010) (quoting Fowler v. Scores Holding Co., 677 F. Supp. 2d 673, 679 (S.D.N.Y. 2009)).
Finally, in deciding a motion to dismiss pursuant to Rule 12(b)(6), the Court must liberally construe all claims, accept all factual allegations in the complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Cargo Partner AG v. Albatrans, Inc., 352 F.3d 41, 44 (2d Cir. 2003); see also Roth v. Jennings, 489 F.3d 499, 510 (2d Cir. 2007).
2. Plaintiff's ADA Claim (First Cause of Action) is Dismissed
a. Plaintiff is Not Disabled Under the ADA
Plaintiff claims that Defendants' conduct violated the ADA because Defendants discriminated against her due to her disability - a broken leg. (Compl. ¶ 25.) However, because Plaintiff does not properly claim the requisite elements of a claim under the ADA, her first cause of action must be dismissed.
"The ADA prohibits discrimination against a 'qualified individual on the basis of disability' in the 'terms, conditions, and privileges of employment.'" Kinneary v. City of N.Y., 601 F.3d 151, 155 (2d Cir. 2010) (quoting 42 U.S.C. § 12112(a)). A plaintiff asserting a violation of the ADA must prove the following elements:
(1) the defendant is covered by the ADA; (2) plaintiff suffers from or is regarded as suffering from a disability within the meaning of the ADA; (3) plaintiff was qualified to perform the essential functions of the job, with or without reasonable accommodation; and (4) plaintiff suffered an adverse employment action because of his disability or perceived disability.Id. at 156 (quoting Capobianco v. City of N.Y., 422 F.3d 47, 56 (2d Cir. 2005)) (internal quotations marks omitted).
Not every injury is considered a disability under the ADA. "Courts within this circuit, and the vast majority of courts elsewhere, have held that temporary disabilities do not trigger the protections of the ADA because individuals with temporary injuries are not disabled persons within the meaning of the act." Fouad v. Jeport Hotel Corp., 01 Civ. 8502, 2005 WL 1866329, at *2 (S.D.N.Y. Aug. 5, 2005) (citations omitted). A broken leg falls among the types of temporary injuries unprotected as a "disability" under the ADA. Fagan v. United Intern. Ins. Co., 128 F. Supp. 2d 182, 185 (S.D.N.Y. 2001) (citing Rodriguez v. DeBuono, 44 F. Supp. 2d 601, 617 (S.D.N.Y. 1999) ("Intermittent, episodic impairments are not disabilities, the standard example being a broken leg."), rev'd on other grounds, 197 F.3d 611 (2d Cir. 1999)). Even a more serious injury, such as a broken hip, "may not be considered a 'disability' for purposes of the ADA [unless] the hip heals improperly, resulting in long-term difficulty in walking . . . .'" Rodriguez, 44 F. Supp. 2d at 617.
More recently, the Western District of New York held that a broken ankle, "which resulted in a single, twelve-week disability leave with no alleged physical limitations thereafter, is not a disability for purposes of the ADA or the parallel New York statute." Guary v. Upstate Nat'l Bank, 618 F. Supp. 2d 272, 275 (W.D.N.Y. 2009).
Here, Plaintiff fails to plead that she suffers from a disability within the meaning of the ADA. Plaintiff's broken leg is simply not an injury considered a "disability" under the ADA. Furthermore, Plaintiff has failed to allege that her injury was more than temporary, or that complications arose from her injury.
However, there is an exception to the aforementioned law: an individual is considered "disabled" under the ADA if she is "regarded as having such an impairment," even if she is not in fact disabled. 42 U.S.C. § 12102(1)(C).
An individual meets the requirement of "being regarded as having such an impairment" if the individual establishes that he or she has been subjected to an action prohibited under this chapter because of an actual or perceived physical or mental impairment whether or not the impairment limits or is perceived to limit a major life activity.Id. § 12102(3)(A). However, "Paragraph (1)(C) shall not apply to impairments that are transitory and minor. A transitory impairment is an impairment with an actual or expected duration of 6 months or less." Id. § 12102(3)(B). Here, Plaintiff's broken leg had an expected duration of eight to ten weeks, as projected by her doctor. (Compl. ¶ 17.) Thus, her injury is "transitory" or "minor," and is not covered under the exception.
As Plaintiff's injury is not a "disability" under the ADA, her first cause of action is dismissed.
b. Plaintiff's Rehabilitation Act Claim Fails
Plaintiff also claims that her action arises under the Rehabilitation Act. This claim fails for the same reasons as her ADA claim.
Under the Rehabilitation Act, "No otherwise qualified individual with a disability . . . shall, solely by reason of her or his disability, be . . . subjected to discrimination under any program or activity receiving Federal financial assistance . . . ." 29 U.S.C. § 794(a). In most cases, the standard for bringing an action under the Rehabilitation Act is the same as under the ADA. Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009) (citing Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir.)).
In order for a plaintiff to establish a prima facie violation under these Acts, she must demonstrate (1) that she is a qualified individual with a disability; (2) that the defendants are subject to one of the Acts; and (3) that she was denied the opportunity to participate in or benefit from defendants' services, programs, or activities, or was otherwise discriminated against by defendants, by reason of her disability.Id. at 73-74 (quoting Powell, 364 F.3d at 85) (internal quotation marks and brackets omitted). Additionally, a "disability" under the Rehabilitation Act is given the same meaning as is provided under the ADA. 29 U.S.C. § 705(9).
As Plaintiff is not "disabled" for the purposes of the ADA, she is not disabled for the purposes of the Rehabilitation Act. Thus, this claim is dismissed
3. Plaintiff's IIED Claim (Second Cause of Action) is Dismissed
Plaintiff next claims that because of Defendants' "egregious conduct and words," she suffered severe emotional distress which required her to see a psychiatrist. (Compl. ¶¶ 28, 30, 32.)
"Under New York law, a claim of intentional infliction of emotional distress requires: '(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.'" Conboy v. AT&T Corp., 241 F.3d 242, 258 (2d Cir. 2001) (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999)).
"Whether the conduct alleged may reasonably be regarded as so extreme and outrageous as to permit recovery is a matter for the court to determine in the first instance." Stuto, 164 F.3d at 827 (citations omitted). "The bar is extremely high, and '[t]his highly disfavored cause of action is almost never successful.'" Semper v. N.Y. Methodist Hosp., 786 F. Supp. 2d 566, 586 (E.D.N.Y. 2011) (quoting McGown v. City of N.Y., No. 09 Civ. 8646, 2010 WL 3911458, at *5 (S.D.N.Y. Sept. 9, 2010) (internal citations omitted)). "In fact, the Court of Appeals of New York has noted that, before 1993, every IIED claim before it had 'failed because the alleged conduct was not sufficiently outrageous.'" Id. at 586-87 (quoting Howell v. N.Y. Post Co., 81 N.Y.2d 115, 122 (N.Y. 1993) (internal citations omitted)). "The 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 society.'" Conboy, 241 F.3d at 258 (quoting Stuto, 164 F.3d at 827 (internal citations omitted)).
Plaintiff does not overcome this extremely high burden. The purportedly "outrageous" and "atrocious" conduct to which she claims she was subject was that her colleague Demeri was given preferential treatment in both work assignments and office privileges, and that Plaintiff was excluded from social functions and some meetings. These "distresses" simply do not rise to the level requisite for a claim of emotional distress. "Acts of favoritism," while possibly unfortunate and unpleasant, are not "atrocious" or "utterly intolerable in a civilized society." While Defendants may not have exhibited good manners, their conduct does not constitute intentional infliction of emotional distress. Thus, this claim is dismissed.
4. Plaintiff's Constructive Discharge Claim (Third Cause of Action) is Dismissed
Finally, Plaintiff claims that Defendants' actions during her employment at the Commission were so reprehensible that they rose to the level of constructive discharge. At the beginning of her complaint, Plaintiff cites Title VII, the NYSHRL, and the NYCHRL, so I assume she means to plead this claim under these laws. To the extent Plaintiff intended for her constructive discharge claim to arise under the ADA and Reconstruction Act, it is dismissed because Plaintiff is not disabled for the purposes of either statute.
a. Plaintiff's Claim of Constructive Discharge Fails Under Title VII
Under Title VII, it is unlawful for an employer to discriminate against an employee on the basis of race, color, religion, sex, or national origin. 42 U.S.C. § 2000e (2012). In order to bring a cause of action under Title VII, a plaintiff must allege the following elements: (1) membership in a protected class, (2) satisfactory job performance, (3) adverse employment action, and (4) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Wright v. Goldman, Sachs & Co., 387 F.Supp.2d 314, 324 (S.D.N.Y. 2005) (citations omitted). Constructive discharge is considered an adverse employment action. See id. at 325 (citing Chertkova v. Conn. Gen. Life Ins. Co., 92 F.3d 81, 87 (2d Cir. 1996)).
"An employee is constructively discharged when his employer, rather than discharging him directly, intentionally creates a work atmosphere so intolerable that he is forced to quit involuntarily." Terry v. Ashcroft, 336 F.3d 128, 152 (2d Cir. 2003) (citing Kirsch v. Fleet St., Ltd., 148 F.3d 149, 161 (2d Cir. 1998); Chertkova, 92 F.3d at 89). "[W]orking conditions are intolerable when, viewed as a whole, they are 'so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign.'" Id. (quoting Chertkova, 92 F.3d at 89 (internal citations and quotations omitted)). Furthermore, to state a prima facie case of constructive discharge, a plaintiff must establish "that the constructive discharge 'occurred in circumstances giving rise to an inference of discrimination on the basis of [her] membership in [a protected] class.'" Id. (quoting Chertkova, 92 F.3d at 91).
Plaintiff's constructive discharge claim fails for two reasons. First, Plaintiff does not plead membership in one of the five protected classes or that Defendants' actions gave "rise to an inference of discrimination" on the basis of her membership in a protected class. Plaintiff does not claim that the conduct that allegedly made her life intolerable relates to a protected class under Title VII - her gender, race, ethnicity, religion, or color. Plaintiff only claims she was discriminated on the basis of her broken leg; disability is not a Title VII protected class. Without alleging membership in a protected class and discrimination on the basis of that membership, Plaintiff cannot state a claim under Title VII, no matter how heinous the conduct alleged. "Title VII is not a general civility code for the workplace." Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 670 (S.D.N.Y. 2012) (internal citations and quotations omitted).
Second, the facts pleaded in the complaint do not rise to the level of intentional infliction of emotional distress and are not the sort of pervasively difficult and unpleasant working conditions that would lead to a viable claim of constructive discharge. Constructive discharge is a subset of "hostile work environment." Conditions that do not qualify as a hostile work environment under Title VII are, by definition, not sufficiently intolerable to force an employee to quit. See Davis-Bell, 851 F. Supp. 2d at 672 ("The standard for a hostile work environment claim is 'demanding,' and the plaintiff must prove that the conduct was 'offensive, pervasive, and continuous enough to amount to a constructive discharge.'" (internal citations omitted)). What Plaintiff pleads here does not come close to a Title VII hostile work environment.
b. Plaintiff's Claim of Constructive Discharge Fails Under the NYSHRL
Under the NYSHRL, it is unlawful employment practice to discriminate on the basis of "age, race, creed, color, national origin, sexual orientation, military status, sex, disability, predisposing genetic characteristics, marital status, or domestic violence victim status. . . ." N.Y. Exec. Law § 296(1)(a) (McKinney 2012). To state a claim under the NYSHRL, "Plaintiff must introduce evidence showing that her 'workplace was permeated with discriminatory intimidation, ridicule, and insult,' which was 'sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment.'" Davis-Bell, 851 F. Supp. 2d at 670 (quoting Harris v. Forklift Sys., Inc. 510 U.S. 17, 21 (1993) (quotation marks and citations omitted) (emphasis added); Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 310 (N.Y.2004) (applying the Harris standard to claims arising under the NYSHRL)).
While disability is a protected class under the NYSHRL, Plaintiff's claim still fails because the standard for a hostile work environment is the same in both Title VII and NYSHRL cases. See id. at 672. Thus, Plaintiff's NYSHRL claim must also be dismissed for the same reasons as given in her Title VII claim - the facts in her complaint do not rise to the requisite level for constructive discharge. As Plaintiff's NYSHRL fails for this reason, I need not address whether her broken leg qualifies as a disability under the NYSHRL.
c. Plaintiff's Claim of Constructive Discharge Fails Under the NYCHRL
Under the NYCHRL, it is unlawful employment practice to discriminate on the basis of "age, race, creed, color, national origin, gender, disability, marital status, partnership status, sexual orientation or alienage or citizenship status of any person . . . ." N.Y.C. Admin. Code § 8-107(1)(a). In order to state a claim under the NYCHRL, Plaintiff must allege that she "has been treated less well than other employees because of membership in a protected class. Davis-Bell, 851 F. Supp. 2d at 671 (emphasis added) (internal citations and quotation marks omitted).
As with the NYSHRL, disability is a NYCHRL-protected class. Despite the NYCHRL's more liberal "different treatment" standard, Plaintiff still fails to state a claim. See id. at 674. It matters not that under the NYCHRL, unlike Title VII and the NYSHRL, a work environment need not be "offensive, pervasive, and continuous" in order to qualify as "hostile." See id. ("Under the [NYCHRL], liability should be determined by the existence of unequal treatment and questions of severity and frequency reserved for consideration of damages." (internal citations and quotation marks omitted)). The city statute still requires Plaintiff to plead that she was subjected to an environment hostile enough to force her to quit because of some factor prohibited by the statute. This, she does not do.
Plaintiff completely fails to allege that "any mistreatment she suffered was motivated by Defendants' discriminatory animus." Id. at 675. Rather, Plaintiff merely states that she was subjected to poor treatment and was subsequently discharged following her broken leg, without even alleging that Defendants' conduct was motivated by her "disability," or membership in any other protected class. Furthermore, as Plaintiff claims Defendants treated her poorly before she broke her leg, the facts pleaded suggest that Defendants' conduct was completely unrelated to any "disability." Thus, Plaintiff's constructive discharge claim under the NYCHRL is also dismissed.
Because the claim can be dismissed, I am dismissing it. However, if it were not possible to dismiss Plaintiff's claims under the city law (or state law, for that matter), I would decline to exercise supplemental jurisdiction on them. --------
CONCLUSION
For the reasons stated herein, Defendants' motion to dismiss Plaintiffs' complaint is GRANTED, and Plaintiff's complaint is dismissed with prejudice. The Clerk is directed to remove the motion at ECF No. 7 from the Court's list of open motions, and to terminate this case. Dated: October 4, 2012
/s/_________
U.S.D.J. BY ECF TO ALL PARTIES