Opinion
No. 00 Civ. 8704 (JSM).
May 18, 2001
MEMORANDUM OPINION AND ORDER
Mindy Cvern ("Plaintiff") brings this action against Enterprise Solution Providers, Inc. ("ESP"), Joseph Alfieri, Thomas Lutz, Frank Coloccia, and John Does 1 through 10 (collectively "Defendants"), alleging breach of contract, negligent infliction of emotional distress, breach of fiduciary duty, fraud, and violations of the following statutes: Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000eet. seq. ("Title VII"), the Pregnancy Discrimination Act, 42 U.S.C. § 2000e (k), the Americans with Disabilities Act, 42 U.S.C. § 12101 et. seq. ("ADA"), the Family and Medical Leave Act, 29 U.S.C. § 2601 et. seq. ("FMLA"), the New York State Human Rights Law, N.Y. Exec. Law § 290 et. seq., the New York Labor Law, and the New York City Administrative Code. The case is presently before the Court on Defendants' motion to dismiss the claims based on the New York State Labor Law, the FMLA, negligence, breach of fiduciary duty, and fraud, the ADA as well as Plaintiff's claims against the individual defendants under Title VII and the ADA. Defendants also seek to strike paragraph fifty-seven of the Complaint. For the reasons set forth below, Defendants' motion is granted in part and denied in part.
BACKGROUND
These facts are taken from the allegations set forth in the Complaint. ESP is a computer consulting corporation with more than fifty employees. Joseph Alfieri is the Chairman, CEO, and owner of ESP. Thomas Lutz is the President of ESP, and Frank Coloccia was a major shareholder of the corporation. Plaintiff began working for ESP in early April 1999. She was hired "ostensibly" as the Chief Financial Officer. In this capacity, she was expected to provide certain financial services to ESP and to utilize her network of contacts in the financial field to generate new business for the corporation. Plaintiff entered into two agreements at the start of her employment with ESP, an Employment Agreement with ESP and a Partnership Agreement with Frank Coloccia and Joseph Alfieri. The Partnership Agreement was an incentive used to encourage Plaintiff to leave her prior employment and agree to work for ESP.
In or about August 1999, Plaintiff informed Defendants that she was pregnant. After announcing her pregnancy, Plaintiff detected some hostility toward her and was excluded from "executive" meetings. On or about January 8, 2000, Plaintiff was rushed to the hospital because her membranes had ruptured. She was informed by her doctor that her pregnancy was at risk and that she must remain in the hospital until her condition stabilized. Plaintiff informed Defendants about her condition, and her absence from work was approved.
Defendants contacted Plaintiff at the hospital approximately one month later and informed her that they had decided to stop paying her salary while she was in the hospital. Apparently, this threatened salary action did not occur. On February 10, 2000, Plaintiff's daughter was born several weeks prematurely. Plaintiff returned to work five days later because she feared that she would either be considered to be on disability leave or terminated. Upon her return to work, she discovered that she had been demoted, replaced by Frank Alfieri, and that she was required to report to him. Plaintiff further learned that Defendants questioned her commitment to ESP. Although Plaintiff was allowed to take a two-week maternity leave in March, she was informed that she could not have a computer installed at home to allow her to access her work from there.
Plaintiff was terminated "for cause" on or around April 26, 2000. She contends that Defendants manufactured a working situation to justify her termination for cause by placing impossible demands upon her. As a result of terminating her for cause, Defendants were able to avoid paying Plaintiff certain sums and bonuses, as well as a share of ESP's profits that was owed to her under the Employment and Partnership Agreements. Accepting all allegations set forth in the Complaint as true, Defendants' motion to dismiss portions of the Complaint is granted in part and denied in part.
These demands are not specifically identified in the Complaint.
DISCUSSION
At oral argument on this motion, Plaintiff's counsel wisely withdrew Plaintiff's claims for violations of the New York Labor Law and the FMLA and conceded that there is no basis for individual liability under Title VII or the ADA. Counsel also agreed to remove paragraph fifty-seven from the Complaint.
Defendants argue that Plaintiff's claim for negligent infliction of emotional distress is barred by the exclusivity provision of the New York Worker's Compensation Law. See N.Y. Work. Comp. § 11. Under that provision, Worker's Compensation is the exclusive remedy for negligence that occurs on the job, including claims for negligent infliction of emotional distress. See, e.g., Arroyo v. Westlb Admin., Inc., 54 F. Supp.2d 224, 232 (S.D.N.Y. 1999), aff'd, 213 F.3d 625 (2d Cir. 2000). Plaintiff responds that members of a partnership are not covered by Worker's Compensation because partners do not have the employer-employee relationship upon which Worker's Compensation is based. See Cohen v. Levine, 288 N.Y.S. 476 (N.Y. 1936); see also Pratt v. Morse, 404 N.Y.S.2d 411 (App.Div. 1978)
Plaintiff is correct that Worker's Compensation does not bar claims for negligence among the members of a partnership. Although Defendants are also correct that Worker's Compensation does bar claims for negligence against members of a partnership by their employees, see Babcock v. Lamb, 668 N.Y.S.2d 856, 857 (App.Div. 1998), Plaintiff alleges that she was not just an employee of ESP, but also a member of a partnership along with Joseph Alfieri and Frank Coloccia. At this stage, Plaintiff's allegation that such a partnership existed must be accepted. The claim therefore survives, but only against the other members of the alleged partnership, Joseph Alfieri and Frank Coloccia.
Defendants next argue that Plaintiff's claim for breach of fiduciary duty is nothing more than a claim for tortious interference with contract and must be dismissed as a matter of law. In an attempt to recast the claim in the light that they desire, Defendants neglect to address the allegation in the Complaint that Joseph Alfieri and Frank Coloccia were Plaintiff's partners. If that allegation is accepted as true, the claim must survive because partners owe each other a fiduciary duty. See Birnbaum v. Birnbaum, 539 N.E.2d 574, 575 (N.Y. 1989). Because the allegation of the existence of the partnership must be accepted as true for the purposes of this motion, the breach of fiduciary duty claim survives against the alleged partners.
Plaintiff contends that she has an action for fraud because Defendants misrepresented their intention to make her a partner in order to convince her to sign both the Employment and Partnership Agreements. Defendants correctly argue that Plaintiff's claim can only survive if: (1) Defendants owed a legal duty to Plaintiff separate from the duty to perform under the contract; (2) Defendants made a fraudulent misrepresentation that is collateral or extraneous to the contract; or (3) Plaintiff seeks special damages unrecoverable as contract damages.See Cougar Audio, Inc. v. Reich, 99 Civ. 4498, 2000 WL 420546, at *6 (S.D.N.Y. Apr. 18, 2000) (citing Bridgestone/Firestone, Inc. v. Recovery Credit Servs., Inc., 98 F.3d 13, 20 (2d Cir. 1996)). The misrepresentation alleged by Plaintiff is neither collateral nor extraneous to the contracts, and the damages sought are available under contract law. Furthermore, if her claim is that Alfieri and Coloccia misrepresented their intention to form a partnership, then they were not her partners and did not owe her any special duty. Plaintiff's fraud claim must be dismissed because it arises out of the same facts as her breach of contract claim.
For an analysis of the application of New York law on this issue in this Circuit, see Cougar, 2000 WL 420546, at *6 n. 4.
Defendants next argue that Plaintiff does not state a valid claim under the ADA. The first prong of the attack on this claim focuses on Plaintiff's failure to allege disability discrimination in her EEOC complaint. Defendants contend that this omission bars the claim because she did not exhaust her administrative remedies. However, Plaintiff argues that the gender and disability discrimination claims are reasonably related, and therefore her EEOC claim served to exhaust her administrative remedies for both claims. See Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp.2d 455, 457-58 (S.D.N.Y. 1998). Because the EEOC claim reported discrimination based on pregnancy and related complications, the disability claim arises out of the same conduct as the discrimination claim and fell within the reasonable scope of the EEOC investigation. See id. Thus, Plaintiff's failure to specify disability discrimination in the EEOC complaint is not fatal to the ADA claim when all inferences are drawn in Plaintiff's favor.
Defendants also attack the ADA claim on the basis that Plaintiff has failed to allege facts sufficient to support a prima facie case of discrimination under the ADA. In order to establish such a claim, Plaintiff must show that (1) she suffers from a disability within the meaning of the statute, (2) an employer covered by the statute had notice of her disability, (3) she could perform the essential functions of the position with or without reasonable accommodation, and (4) she suffered an adverse employment decision because of her disability. See Ryan v. Grae Rybicki. P.C., 135 F.3d 867, 869-70 (2d Cir. 1998). The ADA defines "disability" as: "(A) a physical or mental impairment that substantially limits one or more of the major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment." 42 U.S.C. § 12102(2). Defendants argue that Plaintiff does not suffer from a disability as defined by the Act. Plaintiff responds that her pregnancy with ruptured membranes constituted a physical impairment that substantially limited a major life activity, her ability to work.
Most courts are extremely hesitant to hold that pregnancy and related conditions constitute disabilities under the ADA. See, e.g., Conley v. United Parcel Serv., 88 F. Supp.2d 16, 19 (E.D.N.Y. 2000) (citing cases). However, in Cerrato v. Durham, 941 F. Supp. 388 (S.D.N.Y. 1996), Judge Preska denied a motion to dismiss such an ADA claim based on a difficult pregnancy, finding that the plaintiff had "alleged facts from which it might be concluded that she has suffered an impairment of a bodily system — the reproductive system — that substantially restricts her capacity to engage in work, a major life activity." Id. at 393. Judge Preska noted that although the ADA regulations suggest that transitory and non-chronic impairments are not covered by the Act, §See 29 C.F.R. § 1630.2(j), "the extent and severity of the limitations plaintiff faced are factual questions not properly decided on a motion to dismiss." Cerrato, 941 F. Supp. at 393.
Judge Preska did not comment on the availability of remedies under Title VII and the Pregnancy Discrimination Act for women suffering from discrimination because of difficult pregnancies. Indeed, Plaintiff makes claims under both of those statutes in this case.
In this case, Plaintiff specifically alleges that she was hospitalized for one month, gave birth, and returned to work five days later. Plaintiff does not allege any long-term impact on her health or any resulting impairment after the birth of her daughter. There is therefore no basis to allow Plaintiff to sustain a claim for discrimination under the ADA for a one-month hospitalization when the ADA regulations instruct that short term, temporary restrictions are not substantially limiting and do not render a person disabled. See 29 C.F.R. § 1630.2(j)(2). Furthermore, the Supreme Court has recently stated that in order to plead a substantial limitation on the ability to work, a plaintiff must plead an inability to work in a broad class of jobs. See Sutton v. United Airlines, Inc., 527 U.S. 471, 491, 119 S.Ct. 2139, 2150-51 (1999). Plaintiff has not alleged an inability to work in a broad class of jobs. Even assuming that she could not work in a broad class of jobs while hospitalized, she was only hospitalized for one month and never reported any further symptoms other than exhaustion, presumably resulting from working while caring for a newborn.
Plaintiff attempts to save her ADA claim by arguing that she was disabled under the statute because Defendants regarded her as disabled. To state such a claim, Plaintiff must allege that her employer "mistakenly believes that [she] has a physical impairment that substantially limits one or more major life activities, or . . . mistakenly believes that an actual, non-limiting impairment substantially limits one or more major life activities." Id. at 489, 119 S.Ct. at 2149-50. Plaintiff did not plead that Defendants mistakenly believed that she had some impairment that she does not in actuality have. Although the Complaint could be read as alleging that Defendants regarded Plaintiff as being unable to perform the job of Chief Financial Officer of ESP during and after her pregnancy, there is no allegation that Defendants mistakenly believed that her pregnancy involved a more serious inability to work than reflected in her one-month hospitalization and prompt return to work. Therefore, Plaintiff's ADA claim is dismissed.
CONCLUSION
For the reasons set forth above, Defendants' motion to dismiss portions of the complaint is granted in part and denied in part.
SO ORDERED.