Opinion
03 Civ. 3419 (RCC)(KNF)
November 4, 2003
REPORT AND RECOMMENDATION
TO THE HONORABLE RICHARD C. CASEY, UNITED STATES DISTRICT JUDGE
I. INTRODUCTION
Plaintiff Peggy Holden filed this action pro se against defendant Simpson Thacher Bartlett, alleging violations of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq., and the Americans with Disabilities Act, 42 U.S.C. § 12101, et seq. Additionally, the plaintiff brought claims of common law discrimination and intentional infliction of emotional distress, which the defendant has moved to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6). The defendant's motion is addressed below.
II. BACKGROUND
The plaintiff alleges that while employed by the defendant as a word processing operator, she was subjected to harassment and discriminatory treatment by her supervisors because of: (a) her national origin; and (b) her request for an accommodation of a disability. According to the complaint, a large number of employees in the defendant's word processing department were laid off following a round of skills testing in the spring of 2002, and many of those laid off were Jamaican. The plaintiff alleges that her supervisors, who are Jamaican, told her repeatedly that she was inferior to Jamaicans and whites because she is African-American, and that she should have been terminated instead of the Jamaican employees.
The plaintiff contends that, in May 2002, she underwent surgery to remove a tumor from her neck. She recalls that upon her return to work in June of that year, her supervisors' hostility to her intensified. According to the complaint, the plaintiffs neck surgery made it painful for her to function at a computer station for more than an hour at a time. However, the plaintiffs requests for permission to take short breaks to rest her neck were denied by her supervisors. Instead, the plaintiff maintains, her supervisors made her workload more difficult intentionally, subjected her to very close monitoring, stared at her in an intimidating manner, ridiculed her and yelled at her in front of co-workers — all in an effort to force her to resign. The plaintiff alleges that one supervisor "harassed" her routinely about completing assignments timely, often doing so in a physically intimidating manner. The plaintiff contends that on one occasion, a supervisor hit her on the arm with great force in an effort to wake her up, even though the plaintiff was not asleep. The complaint states that the plaintiff was eventually terminated by the defendant.
In the instant motion, the defendant contends that there is no cause of action at common law for discrimination, and that the facts alleged in the complaint are not, even if true, sufficient to support a claim of intentional infliction of emotional distress under New York law.
III. DISCUSSION
A court may dismiss an action pursuant to Fed.R.Civ.P. 12(b)(6) only if "it appears beyond doubt that [a] plaintiff can prove no set of facts in support of [her] claim which will entitle [her] to relief." Woodford v. Community Action Agency of Greene County, Inc., 239 F.3d 517, 526 (2d Cir. 2001) (quotingConley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102). In considering the motion, the court must take "as true the facts alleged in the complaint and draw all reasonable inferences in the plaintiffs favor." Jackson Nat'l Life Ins, v. Merrill Lynch Co., 32 F.3d 697, 699-700 (2d Cir. 1994). Furthermore, in a case such as this where the plaintiff is proceeding pro se, a court must be mindful that the plaintiffs pleadings "are [to be] held 'to less stringent standards than formal pleadings drafted by lawyers.'"Hughes v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 176 (1980) (quoting Haines v. Keener, 404 U.S. 519, 520, 92 S.Ct. 594, 595).
Common Law Discrimination
New York does not recognize a common law cause of action for either wrongful discharge of an employee or discriminatory employment practices.See Murphy v. American Home Products Corp., 58 N.Y.2d 293, 300-02, 461 N.Y.S.2d 232, 235-36 (1983); Monsanto v. Electronic Data Systems Corp., 141 A.D.2d 514, 515, 529 N.Y.S.2d 512, 514 (App.Div.2d Dep't 1988). Therefore, any claim of common law discrimination made by the plaintiff cannot survive the defendant's motion to dismiss.
Intentional Infliction of Emotional Distress
Under New York law, the tort of intentional infliction of emotional distress "has four elements: (i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." Howell v. New York Post Co., Inc., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 353 (1993).
Even construed liberally, the complaint does not indicate that the plaintiff could prove facts that would satisfy the first of these elements. Derogatory and demeaning remarks are not, by themselves enough to constitute extreme and outrageous conduct that satisfies the first element, see Leibowitz v. Bank Leumi Trust Co. of New York, 152 A.D.2d 169, 182, 548 N.Y.S.2d 513, 521 (App.Div.2d Dep't 1989). In like manner, staring, monitoring, yelling, and simple battery, without more, do not constitute "extreme and outrageous conduct [that] so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." Id. (quoting Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 741); Jaffe v. National League for Nursing, 222 A.D.2d 233, 233, 635 N.Y.S.2d 9, 10 (App.Div. 1st Dep't 1995) (holding that in the context of alleged employee harassment and intimidation, an "allegation of 'a hard slap on [plaintiffs] backside,' during an outburst of rage" was not sufficiently outrageous to establish a claim of intentional infliction of emotional distress). Therefore, the claim of intentional infliction of emotional distress should be dismissed.
IV. RECOMMENDATION
For the reasons set forth above, I recommend that the defendant's motion to dismiss the common law discrimination and intentional infliction of emotional distress claims be granted.
V. FILING OF OBJECTIONS TO THIS REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from service of this Report to file written objections. See also Fed.R.Civ.P. 6. Such objections, and any responses to objections, shall be filed with the Clerk of Court, with courtesy copies delivered to the chambers of the Honorable Richard C. Casey, 500 Pearl Street, Room 1350, New York, New York, 10007. Any requests for an extension of time for filing objections must be directed to Judge Casey, and to the chambers of the undersigned, 40 Centre Street, Room 540, New York, New York, 10007. FAILURE TO FILE OBJECTIONS WITHIN TEN (10) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WELL PRECLUDE APPELLATE REVIEW.See Thomas v Arn. 474 U.S. 140 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 57-59 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983).