Opinion
99-CV-0879E(M)
May 21, 2001
MEMORANDUM and ORDER
Plaintiff commenced this action November 4, 1999 alleging that the Buffalo Sewer Authority ("BSA") terminated him in retaliation for exercising his First Amendment rights in violation of 42 U.S.C. § 1983 and that both the BSA and Hazzan had discriminated against him due to a disability in violation of the New York State Human Rights Law, N.Y. Exec. Law §§ 290-301. Plaintiff has requested $10 million dollars in punitive damages. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331, 1343(a)(3) and 1367. Defendants filed a motion to dismiss under Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure ("FRCvP") March 3, 2000 seeking to dismiss the claim against
Hazzan and the claim for punitive damages. Pursuant to a May 19, 2000 stipulation — so ordered by this Court ___, plaintiff's "claims in the Complaint for punitive damages against Defendants Buffalo Sewer Authority and Anthony Hazzan, pursuant to his claim under the New York State Human Rights Law, Executive Law § 296 et seq., and 42 U.S.C. § 1983" were dismissed on the merits and with prejudice. On December 12, 2000 the parties stipulated to the filing of an amended complaint to add a claim against BSA under the Americans with Disabilities Act, 42 U.S.C. § 12112-12117, ("ADA") and agreed that defendants' March 3, 2000 motion to dismiss would apply to the amended complaint. Plaintiff accordingly filed such amended complaint December 20, 2000. Presently before this Court is defendants' motion to dismiss.
For some unknown reason, plaintiff submitted a FRCvP 56(f) affidavit seeking discovery in opposition to defendants' motion to dismiss. A 56(f) affidavit is used to oppose summary judgment, not a motion to dismiss, and, because it is irrelevant, it will not be considered by this Court.
In his Amended Complaint, plaintiff states that Hazzan was "an employee of the [BSA] serving as either Secretary to the General Manager or, when the position of General Manager was vacant, as General Manager." Am. Compl. ¶ 6. Plaintiff alleges that "defendant Hazzan made or was instrumental in the decisions to threaten, harass and intimidate plaintiff, prevent him from returning to work, require him to undergo an unwarranted psychiatric evaluation, suspend and ultimately discharge him. Moreover, defendant Hazzan himself participated in and implemented some of these actions. *** `Hazzan,' in his discriminatory behavior toward plaintiff, did aid, abet, incite, compel and coerce unlawful acts forbidden under Article 15 of the New York Executive Law. Thereby he committed an unlawful discriminatory practice in violation of Section 296(6) of the New York Executive Law." Am. Compl. ¶¶ 61, 64.
Defendants request this Court to decline to exercise supplemental jurisdiction over the HRL claim against Hazzan on the ground that New York law with respect to individual liability under HRL is unsettled and, accordingly, to dismiss such claim. "[I]n any civil action of which the district courts shall have original jurisdiction, the district courts shall have supplemental jurisdiction over all other claims that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution." 28 U.S.C. § 1367(a). It is not disputed that the claim against Hazzan under the HRL is so related to the federal claims as to constitute the same case or controversy and accordingly this Court has supplemental jurisdiction to consider such; however defendants request this Court to decline to exercise such jurisdiction because there is a split among the New York courts regarding individual liability under section 296(6) of the HRL. "The district courts may decline to exercise supplemental jurisdiction over a claim *** if the claim raises a novel or complex issue of State law." 28 U.S.C. § 1367(c)(1). The exercise of supplemental jurisdiction — when such exists — is mandatory and can be declined only if one of the exceptions in 28 U.S.C. § 1367(c) is applicable. Itar-Tass Russian News Agency v. Russian Kurier, Inc., 140 F.3d 442, 447-448 (2d Cir. 1998) (holding that enactment of 28 U.S.C. § 1367 overruled discretion to decline supplemental jurisdiction based factors enunciated in Mine Workers v. Gibbs, 383 U.S. 715, 726-728 (1966), but not contained in 28 U.S.C. § 1367(c)).
The cases in which the respective courts declined to exercise supplemental jurisdiction did not follow the Second Circuit Court of Appeals' holding in Itar-Tass are: Houston v. Fidelity, No. 95 Civ. 7764(RWS), 1997 WL 97838, at *10-11 (S.D.N.Y. Mar. 6, 1997) (decided before Itar-Tass); Ponticelli v. Zurich American Insurance Group, 16 F. Supp.2d 414, 438-440 (S.D.N.Y. 1998) (relied on Gibbs and did not address Itar-Tass); E.E.O.C. v. die Fliedermaus, L.L.C., 77 F. Supp.2d 460, 474 (S.D.N.Y. 1999) (following Ponticelli); Silva v. New York City Transit Authority, No. CV 96-2758(RJD), 1999 WL 1288683, at *18 (E.D.N.Y. Nov. 17, 1999) (same).
Section 296(1) of the HRL states that "[i]t shall be an unlawful discriminatory practice *** [f]or an employer *** because of the *** disability *** of any individual *** to discharge from employment such individual or to discriminate against such individual *** in terms, conditions or privileges of employment." The only definition of the employer for purposes of section 296(1) of the HRL is that "[t]he term `employer' does not include any employer with fewer than four persons in his employ." N.Y. Exec. Law § 292(6). The New York Court of Appeals has stated that:
"[a] corporate employee, though he has a title as an officer and is the manager or supervisor of a corporate division, is not individually subject to suit with respect to discrimination *** under New York's Human Rights Law *** if he is not shown to have *** any power to do more than carry out personnel decisions made by others." Patrowich v. Chemical Bank, 63 N.Y.2d 541, 542 (1984).
Curiously, although defendants first state that, in Patrowich, the Court held that "there are very limited circumstances in which an individual employee can, in fact, be subject to suit for discrimination under New York's Human Rights Law," they then characterize the holding as "rejecting any notion of individual liability under NYSHRL ***.". Mem. of Law in Supp. of Defs.' Mot. to Dismiss at 4-5.
Consequently, if an employee does have sufficient authority and power to do more than simply carry out personnel decisions made by others, he can be held liable under the HRL. Lapidus v. New York City Chapter of the New York State Ass'n for Retarded Children, Inc., 504 N.Y.S.2d 629 (App.Div. 1st Dep't 1986); Summers v. County of Monroe, 537 N.Y.S.2d 703 (App.Div. 4th Dep't 1989).
Section 296(6) of the HRL states that "[it] shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so." The Second Circuit Court of Appeals has accordingly held that, under section 296(6), employees who are not shown to have any power to do more than carry out personnel decisions made by others, but who actually participate in discriminatory conduct can still be liable the HRL. Tomka v. Seiler Corporation, 66 F.3d 1295, (2d Cir. 1995).
The New York Court of Appeals has not decided whether section 296(6) allows an employee to be held liable as an aider and abettor if he participates in the discriminatory conduct but does not have any power to do more than carry out personnel decisions made by others and the Appellate Division of the New York Supreme Court is split on the issue. The First Department cited Tomka and held that section 296(6) allowed employees to be held liable under an aiding and abetting theory. Steadman v. Sinclair, 636 N.Y.S.2d 325 (App.Div. 1st Dep't 1996); see also Peck v. Sony Music Corporation, 632 N.Y.S.2d 963 (App.Div. 1st Dep't 1995); D'Amico v. Commodities Exchange Inc., 652 N.Y.S.2d 294, 296 (App.Div. 1 st Dep't 1997). However, the Second Department cited Tomka, Peck and Steadman and then came to the opposite conclusion, holding that employees could not be held liable as aiders and abettors under section 296(6). Trovato v. Air Express International, 655 N.Y.S.2d 656 (App.Div.2d Dep't 1997). However, the majority of courts addressing this issue have concluded that an employee can be held liable under section 296(6) for aiding and abetting discriminatory conduct. See e.g. Hasbrouck v. BankAmerica Housing Services, Inc., 105 F. Supp.2d 31, 39 n. 16 (N.D.N.Y. 2000); Arena v. Agip USA Inc., No. 95 CIV. 1529(WHP), 2000 WL 264312 at *3 n. 1 (S.D.N.Y. March 8, 2000); Petrosky v. New York State Dept. of Motor Vehicles, 72 F. Supp.2d 39, 66 (N.D.N.Y. 1999); Lewis v. Triborough Bridge and Tunnel Authority, 77 F. Supp.2d 376, 380 n. 6 (S.D.N.Y. 1999); Oliver v. General Nutrition Center, No. 97 Civ. 6800, 1999 WL 435208, at *3 n. 6 (S.D.N.Y. June 25, 1999).
Preliminarily, it appears that defendants believe that plaintiff has only asserted a cause of action against Hazzan as an aider and abettor under section 296(6) and not under section 296(1) as well because plaintiff alleges that Hazzan was an employee of BSA, not his employer. Carra March 3, 2000 Aff. ¶ 6-7; Mem. of Law in Supp. of Defs.' Mot. to Dismiss at 2-5; Reply Mem. of Law in Supp. of Defs.' Mot. to Dismiss at 1-2. However, sections 296(1) and 296(6) provide two separate and independent grounds for holding an employee individually liable under the HRL and plaintiff states that he intended to make a claim under both. Mohn May 9, 2000 Aff. ¶¶ 3-14; Pl.'s Mem. of Law in Opp'n to Defs.' Mot. to Dismiss. Under FRCvP 8(a) a complaint need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Plaintiff's allegations that "Hazzan made or was instrumental in the decisions to threaten, harass and intimidate plaintiff, prevent him from returning to work, require him to undergo an unwarranted psychiatric evaluation, suspend and ultimately discharge him *** [and] participated in and implemented some of these actions" — Am. Compl. ¶ 61 — is sufficient to state a cause of action against Hazzan under section 296(1) and plaintiff's allegations that "Hazzan, in his discriminatory behavior toward plaintiff, did aid, abet, incite, compel and coerce unlawful acts forbidden under Article 15 of the New York Executive Law" — Am. Compl. ¶ 64 — is sufficient to state a cause of action under section 296(6) of the HRL. Accordingly, this Court will not decline to exercise supplemental jurisdiction over plaintiff's HRL claim against Hazzan at this time because the issue is not made novel or complex simply because there is a split on individual liability under section 296(6) in the Appellate Division, especially in light of the decision of the Second Circuit Court of Appeals in Tomka. Arena, at *5 (noting none of the exceptions set forth in section 1367 is applicable).
Defendant appears to believe that because plaintiff alleges that Hazzan was an employee of BSA he can only be found liable as an aider and abettor under section 296(6); however, in Patrowich, the New York Court of Appeals specifically stated that a "corporate employee" could be liable under section 296(1). Patrowich, at 542.
Although plaintiff stipulated to withdraw the claim for $10 million of punitive damages under the HRL and section 1983 in his original Complaint on the merits and with prejudice, and such was so ordered by this Court — he still included a claim for $10 million in punitive damages in his Amended Complaint. The basis of defendants' motion to dismiss the punitive damages claim in plaintiff's original Complaint was that punitive damages are not available under the HRL and that they are not available against a public entity such as the BSA under section 1983. The parties agreed to the filing of an Amended Complaint to add a cause of action under the ADA and further agreed that the motion to dismiss would apply in all applicable respects to the amended complaint.
Although plaintiff stipulated to withdraw his claim for punitive damages on his section 1983 and HRL claims in his original Complaint, this Court notes that he never had a valid claim for such because punitive damages are not available against a public entity such as the BSA under 42 U.S.C. § 1983 — City of Newport v. Fact Concepts, Inc., 453 U.S. 247, 271 (1981); 42 U.S.C. § 1981a(b)(1) — and because punitive damages are not available for disability discrimination under the HRL. Thoreson v. Penthouse International, Ltd., 80 N.Y.2d 490, 496-499 (1992); N.Y. Exec. Law § 297(9).
Based on such stipulation and because the standard for punitive damages under the ADA is the same as for section 1983, this Court will apply the motion to dismiss the claim for punitive damages to the ADA cause of action.
The maximum amount of punitive damages available under the ADA is capped at between $50,000 and $300,000 depending on the number of employees the defendant has. Weissman v. Dawn Joy Fashions, 214 F.3d 224, 235 (2d Cir. 2000); 42 U.S.C. § 1981a(b)(3).
This suggests that plaintiff did not keep his claim for $10 million dollars of punitive damages in his Amended Complaint based solely on his new ADA claim, despite his earlier stipulation, because there is no basis in law for a claim of $10 million in punitive damages under the ADA. Furthermore, under the ADA punitive damages are not available against "a government, government agency or political subdivision***." 42 U.S.C. § 1981a(b)(1); see e.g. Worthington v. City of New Haven, No. 3:94-CV-00609(EBB), 1999 WL 958627, at *16 (D.Conn. Oct. 5, 1999). The BSA is a government agency — N.Y. Pub. Auth. Law §§ 1175-1195 — and as such is not liable for punitive damages. Slinkosky v. Buffalo Sewer Authority, No. 97-CV-0677E(Sr), 2000 WL 914118, at *9; Elmwood-Utica Houses, Inc. v. Buffalo Sewer Authority, 468 N.Y.S.2d 227, 231 (App.Div. 4th Dep't 1983). Defendant's motion to dismiss plaintiff's claim for punitive damages will therefore be granted.
Accordingly, it is hereby ORDERED that defendants' motion to dismiss the HRL claim against Hazzan is denied, that defendants' motion to dismiss the claim for punitive damages is granted, that plaintiff's claims for punitive damages are dismissed and that defendants shall file an answer within thirty days pursuant to the December 12, 2000 stipulation.