Summary
In Benjamin, the plaintiffs argued that the defendants acted outside of the scope of their employment in committing the acts of discrimination; accordingly, the Court held that the plaintiff's allegations did not exclude this possibility, and further decided that a jury should determine whether the defendants were acting outside of the scope of their employment.
Summary of this case from Francis v. Elmsford School DistrictOpinion
99 Civ. 12345 (LTS)(AJP)
March 29, 2002
BALLON, STOLL, BADER NADLER, P.C., By: Marshall B. Bellovin, Esq., New York, New York, Attorneys for Plaintiff
MICHAEL A. CARDOZO, CORPORATION COUNSEL OF THE CITY OF NEW YORK By: Ott Hershkovitz, Esq., New York, New York, Attorneys for Defendants New York City Department of Health, the City of New York, Bertha Howard, Linda Fiore, and Joan Rondon
MEMORANDUM OPINION AND ORDER
Plaintiff Sislyn Benjamin ("Plaintiff") brings this action against the New York City Department of Health ("D.O.H."). The City of New York, (collectively, "Municipal Defendants") Bertha Howard, Linda Fiore, Joan Rondon (collectively "Individual Municipal Defendants"), and Local 436, District Council 37, ("Local 436") for alleged violations of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000-e and 2000e-3), the Americans with Disabilities Act ("ADA") ( 42 U.S.C. § 12112), Section 296 of the New York State Executive Law ("New York State Human Rights Law"), and Section 8-107 of the New York City Administrative Code ("New York City Human Rights Law"). This matter comes before the Court on Municipal Defendants' motion to dismiss the Complaint pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6).
The Court has considered thoroughly all submissions related to this motion and the decision to be rendered reflects such consideration. Plaintiff's Title VII claim (First Claim for Relief) and her City and State causes of action on the issue of disability (Ninth and Eleventh Claims for Relief) are dismissed as against Municipal Defendants. Plaintiff's claim of intentional infliction of emotional distress (Thirteenth Claim for Relief) is dismissed as against the Municipal Defendants and the Individual Municipal Defendants. The motion to dismiss is denied as to Plaintiff's ADA cause of action (Seventh Claim for Relief) and her City and State claims on the issue of national origin discrimination (Third and FifTh Claims) for Relief.
BACKGROUND
The Complaint describes the background of this action as follows. Plaintiff, a nurse formerly employed by the New York City Department of Health, is an African-American female of Jamaican origin. (Am. Compl. ¶¶ 1, 8.) Plaintiff was hired by D.O.H. on or about April 21, 1994. (Id. ¶ 8.) Plaintiff alleges that shortly thereafter, her supervisor, Bertha Howard ("Howard"), began discriminating against her on the basis of her national origin. (Id. ¶ 9.) Plaintiff alleges that Howard was also the vice president of Local 436. (Id. ¶ 9.) According to Plaintiff, Howard's conduct, which occurred almost daily, included mimicking Plaintiff's accent and cultural mannerisms in front of the staff, sabotaging Plaintiff's job efforts, and accusing Plaintiff of falsehoods, which undermined her professional reputation and credibility. (Id. ¶ 10.) Plaintiff alleges that, as a result of Howard's conduct, she became ill and was diagnosed with irritable bowel syndrome and post-traumatic stress disorder. (Id. ¶¶ 11, 12.) Plaintiff asserts that she therefore took a disability leave from October 19, 1994 through April 3, 1995. (Id. ¶¶ 13, 14.) Plaintiff asserts that, in an act of retaliation, she was transferred upon her return to work to Brooklyn a location which was considerably distant from her home in Upper Manhattan. (Id. ¶¶ 15, 16.) Plaintiff alleges that the discriminatory conduct, based upon her national origin, commenced again in Brooklyn. (Id. ¶ 17.) Plaintiff wrote two letters, on May 21, 1996 and September 23, 1996, to Stanley Hill, Local 436's Executive Officer. (Id. ¶ 18.) Plaintiff alleges that no responses were received. (Id. ¶ 19.) Plaintiff also alleges that her complaints made to "Richard Fox [and] Linda Fiore, of the Management Team, in 1994 and 1995," went unheeded. (Id. ¶ 21.)
Plaintiff further alleizes that at both the Brooklyn and Staten Island locations, her supervisors, Joan Rondon ("Rondon") and Linda Fiore ("Fiore"), regularly required Plaintiff to carry heavy paperwork and supplies while she was recuperating from shoulder surgery, a condition allegedly known to her employer. (Id. ¶¶ 22-24.) Plaintiff asserts, as "further evidence" of the "discrimination/retaliation that was being systematically practiced against Plaintiff" that she was transferred three more times during an (unspecified) three-month period. (Id. ¶ 25.) According to Plaintiff, these transfers required her to learn new procedures within a very short period of time, hampering her effectiveness on the job. (Id. ¶ 26.) Plaintiff asserts that. despde her requests, she was denied training opportunities allegedly given to others who were not African American females of Jamaican origin or did not have physical or mental disabilities. (Id. ¶ 27.) Plaintiff also claims that she was assigned tasks beneath her title and status as a supervisor, such as giving immunizations and eye examinations. (Id. ¶¶ 28-30.) Plaintiff alleges that, in the summer of 1996, she was required to give immunizations and that, on October 2, 1996, her supervisor, identified in the complaint as Linda Fiore, reassigned her to the position of eye examiner. (Id. ¶ 30.) Plaintiff claims that. "[a]s part and parcel of the continuing discriminatory conduct and retaliation," Joan Rondon (identified earlier in the complaint as Plaintiff's supervisor at the Brooklyn or Staten Island location) had Plaintiff served with approximately six (6) disciplinary charges, on or about June 1996, alleging, among other things, that Plaintiff performed her job improperly. (Id. ¶ 31.)
Plaintiff took a second medical leave from February 11, 1997 to October 22, 1998, on which date Plaintiff was terminated for incompetence. (Id. ¶ 34.) Plaintiff claims that, while she was absent on medical leave, her health insurance benefits were prematurely discontinued based on a claim by D.O.H, that they had been "waived." (Id. ¶ 35.) Plaintiff's insurance was subsequently reinstated. (Id. ¶ 36.) Finally. Plaintiff alleges that, during her medical leave, she was transferred to a position in the Department of Tuberculosis, a job which Plaintiff claims she was medically incapable of performing due to a positive tuberculin test and her "medical status." without her consent. (Id. ¶ 37.)
In her First Claim, Plaintiff asserts that the alleged mockery, repeated transfers, assignments to inappropriate tasks, denial of training opportunities, and accusations of falsehoods constituted national origin discrimination, actionable against the Municipal Defendants under Title VII of the Civil Rights Act of 1964, as amended (Title VII), specifically 42 U.S.C. § 2000e-2 (a). Plaintiff's Third Claim asserts that the Municipal Defendants discriminated against her illegally on the basis of national origin in violation of Section 296(1)(a) of the New York State Executive Law by failing to take corrective action despite repeated requests to do so. The Fifth Claim is identical to the Third, except that it asserts a violation of Section 8-107(a) of the New York City Administrative Code. The Seventh, Ninth and Eleventh Claims allege, respectively, disability discrimination by the Municipal Defendants in violation of the Americans with Disabilities Act ("ADA"), Section 296(1)(a) of the New York State Executive Law, and Section 8-107(a) of the New York City Administrative Code, citing as their basis assignments to do "unnecessary, heavy work while [Plaintiff] was recuperating from shoulder surgery," persistence in national origin discrimination "in the face of [P]laintiff's work-related illnesses," temporary discontinuation of Plaintiff's health insurance, and the transfer to the Department of Tuberculosis. (See Am. Compl. ¶¶ 51, 55, 59.) The Thirteenth Claim, the only one asserted against all defendants, alleges that they "individually and collectively, intentionally inflicted extreme emotional distress upon [P]laintiff, by creating and/or allowing a pattern or practice of discrimination, based upon national origin. . . ." Id. ¶ 63.
The Second, Fourth, Sixth, Eighth, Tenth and Twelfth Claims are asserted against Local 436 only.
DISCUSSION
Municipal Defendants move pursuant to Rule 12(b)(1) of the Federal Rules of Civil Procedure to dismiss Plaintiff's First, Third, Fifth, Ninth and Eleventh Claims for lack of subject matter jurisdiction. Municipal Defendants further move pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure to dismiss Plaintiff's First, Seventh, Thirteenth Claims for failure to state a claim. Rule 12(b)(1)When defendants move for dismissal on a number of grounds, the court should "'consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of subject matter jurisdiction, the accompanying defenses and objections become moot and do not need to be determined.'" Rhulen Agency, Inc. v. Alabama Ins. Guar. Ass'n, 896 F.2d 674, 678 (2d Cir. 1990) (quoting 5 C. Wright and A. Miller.Federal Practice and Procedure § 1350, at 548 (1969)).
A case is properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1) of the Federal Rules of Civil Procedure when the district court lacks the statutory or constitutional power to adjudicate it. See Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000.) A plaintiff asserting subject matter jurisdiction generally has the burden, once challenged, of proving by a preponderance of the evidence that jurisdiction exists. See id. Unlike a motion to dismiss under Rule 12(b)(6), a motion to dismiss for lack of subject matter jurisdiction is not directed to the claim's merits. See Exchange Nat'l Bank of Chicago v. Touche Ross Co., 544 F.2d 1126, 1130-1 (2d Cir. 1976).
Title VII and the ADA
Title VII makes it unlawful "for an employer . . . to fail to hire or to discharge any individual, or otherwise to discriminate against any individual . . . because of such individual's race, color, religion, sex, or national origin." 42 U.S.C.A. § 2000-2(a)(1) (West 1994). The ADA prohibits discrimination by covered employers against qualified individuals with a disability. 42 U.S.C.A. § 12112(a) (West 1995). The ADA defines disability as "a physical or mental impairment that substantially limits one or more major life activities of such individual." 42 USCA. § 12102(2)(A) (West 1995).
National Origin Claim Under Title VII
Municipal Defendants assert that Plaintiff's claim of national origin discrimination in violation of Title VII, as asserted in her First Claim for Relief, should be dismissed pursuant to Federal Rule of Civil Procedure 12(b)(1) because Plaintiff failed to assert such a claim in her charge filed with the EEOC and the City of New York Commission on Human Rights ("CHR").
Federal district courts have jurisdiction of Title VII claims "that are either included in an EEOC charge or are based on conduct subsequent to the EEOC charge which is 'reasonably related' to the alleged in the EEOC charge." Butts v. City of New York Dep't of Housing Preservation Dev., 990 F.2d 1397, 1401 (2d Cir. 1993), superseded by statute on other grounds as stated in Hawkins v. 1115 Legal Service Care, 163 F.3d 684 (2d Cir. 1998); see also, Legnani v. Alitalia Linee Aeree Italiane, 274 F.3d 683, 686 (2d Cir. 2001). Claims not raised in the administrative complaint "can be brought in a civil action [only] where the conduct complained of would fall within the reasonable scope of the administrative agency's investigation of the charge." Ahmed v. Compass Group, No. 99 Civ. 10032 (JSM), 2000 WL 1072299, at *6 (S.D.N.Y. 2000).
Here, Plaintiff's administrative charge refers to Plaintiff as "dark skinned," (see Administrative Compl. ¶ 1, Appendix B to Municipal Defs.' Mem. of Law in Supp. of Their Mot. to Dismiss the Am. Compl.), and to similarly situated employees who were allegedly treated differently because they are "light-skinned." (Id. ¶ 5.) The administrative charge is devoid of information regarding Plaintiff's national origin or the national origin of anyone else allegedly involved in the events at issue. An assertion that one is "dark skinned" does not suggest a claim of discrimination based on national origin. See Mathura v. Council for Human Services Home Care Services, No. 95 Civ. 4191 (RO), 1996 WL 157496, at *2 (S.D.N.Y. 1996) (holding that race/color discrimination claim is not "reasonably related" to a claim of national origin): Dixit v. City of New York Dep't of Gen. Servs., 972 F. Supp. 730, 734 (S.D.N.Y. 1997) ("[a]n assertion of racial bias is conceptually distinct from a claim of discrimination based on national origin"); Alonzo v. Chase Manhattan Bank, N.A., 25 F. Supp.2d 455, 459 (S.D.N.Y. 1998) (holding that the term "'black' . . . does not trigger the concept of national origin or an affiliation to a particular country"). Nothing in Plaintiff's administrative charge would have alerted the administrative agency or Municipal Defendants to Plaintiff's claim of national origin discrimination. Plaintiff's First Claim for Relief is therefore dismissed for lack of subject matter jurisdiction.
State and Municipal Law Claims
Plaintiff asserts national origin and disability discrimination claims under both the New York State and City Human Rights Laws. (See Am. Compl. ¶¶ 42-43, 46-47, 54-55, 58-59.) Municipal Defendants contend that Plaintiff's claims should be dismissed for lack of subject matter jurisdiction, arguing that Plaintiff is barred from bringing this action for unlawful discrimination by Section 297(9) of the New York State Executive Law, which provides, in pertinent part, that
[a]ny person claiming to be aggrieved by an unlawful discriminatory practice shall have a cause of action in any court of appropriate jurisdiction . . . unless such person had filed a complaint hereunder [with the New York State Division of Human Rights] or with any local commission on human rights. . . .
N Y Exec. Law § 297(9) (Consol. 2000) (emphasis supplied), and by Section 8-502(a) of the New York City Administrative Code, which provides, in pertinent part, that
any person claiming to be aggrieved by an unlawful discriminatory practice . . . shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the city commission on human rights or with the state division of human rights with respect to such alleged unlawful discriminatory practice.
NYC Admin. Code § 8-502(a) (1999) (emphasis supplied). Under these statutes, administrative and judicial remedies are mutually exclusive and a party who files a complaint with the CHR is generally barred from later commencing an action in court. See Moodie v. Fed. Reserve Bank of N.Y., 58 F.3d 879, 882-83 (2d Cir. 1995); Chudnovsky v. Prudential Securities, Inc., No. 98 Civ. 7753 (SAS), 2000 WL 1576876, at *4 (S.D.N.Y. 2000).
As noted above, Plaintiff filed a complaint with the CHR on May 19, 1997. This Court must therefore examine "whether the facts alleged in the administrative charge are the same as those alleged in the federal court lawsuit." Chudnovsky, 2000 WL 1576876, at *5. Plaintiff raised claims before the CHR alleging discrimination based on her "dark skin" and disability. Because Plaintiff's State and City claim of discrimination based on disability arise out of the same facts presented to the CHR, this claim, which is asserted against the City and D.O.H. in Plaintiff's Ninth and Eleventh Claims for relief, is precluded by above-cited statutes. The Ninth and Eleventh Claims for Relief are therefore dismissed for lack of subject matter jurisdiction.
As noted above, Plaintiff did not, however, raise her claim of national origin discrimination at the administrative level — her CHR complaint neither cited her national origin nor asserted differential treatment based on national origin. Accordingly, the facts alleged in this action with respect to her national origin claim are not the same as those asserted in her prior administrative complaint. See id. Municipal Defendants' motion to dismiss Plaintiff's state and local claims of discrimination based upon national origin is therefore denied with respect to Plaintiff's Third and Fifth Claims for relief.
Rule 12(b)(6)
In deciding a motion to dismiss for failure to state a claim upon which relief may be granted, a court must accept as true the material facts alleged in the complaint and draw all reasonable inferences in plaintiff's favor. Grandon v. Merryll Lynch, 147 F.3d 184, 188 (2d. Cir. 1998). The court must not dismiss the action unless "'it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)): Sims v. Artuz, 230 F.3d 14, 20 (2d Cir. 2000).
Plaintiff's Pre-July 23, 1996 ADA Claim,
Municipal Defendants seek dismissal of Plaintiff's Pre-July 23, 1996 Title and ADA Claims for failing to comply with statutory filing requirements. As Plaintiff's Title VII (First Claim for Relief) is being dismissed for lack of subject matter jurisdiction, the Court addresses only Plaintiff's ADA claim (Seventh Claim for Relief) in this connection.
The ADA requires that a charge of discrimination be filed with the United States Equal Employment Opportunity Commission ("EEOC") within 180 days of the alleged unlawful employment action or, if the claimant has already filed the charge with a state or local equal employment agency, within 300 days of the alleged discriminatory action. See Tewksbury v. Ottaway Newspapers, 192 F.3d 322, 325 (2d Cir. 1999); 42 U.S.C.A. § 12112. This requirement functions as a statute of limitations.
The Title VII filing requirements (See 42 U.S.C. § 2000e-5(e);Gomes v. Avco Corp., 964 F.2d 1330, 1332-33 (2d Cir. 1992)) have been held to apply to ADA claims. Tewkshury, 192 F.3d at 325-26; 42 U.S.C.A. § 12117(a) (West 1995).
Municipal Defendants argue that, because Plaintiff filed her verified complaint with the EEOC and the CHR on May 19, 1997, only the incidents alleged to have occurred in the preceding 300 day period,i.g., events after July 23, 1996, are actionable. Municipal Defendants thus assert that Plaintiff's allegations that: 1) in 1994, defendant Howard began a "practice and a pattern of discrimination" which included "mimicking plaintiff's accent and cultural mannerisms in front of the staff, sabotaging plaintiff's job efforts, and accusing plaintiff of falsehoods which undermined her professional reputation and credibility" (Am. Compl. ¶¶ 8-10); 2) Plaintiff was retaliatorily transferred to Brooklyn in April 1995 (id. ¶¶ 14-16); 3) prior to May 21, 1996, Plaintiff was discriminated against at the Brooklyn location to which she was transferred (Id. ¶¶ 17-18); and 4) in or around June 1996, Plaintiff was discriminatorily and retaliatorily brought up on disciplinary charges (id. ¶ 31). Plaintiff in turn asserts that the discriminatory actions of which she complains comprised a "continuing violation" of the relevant statues and that her federal claims thus can be maintained as to pre-July 23, 1996, events as well as those that allegedly occurred within the 300-day period.
The Court takes judicial notice of the verified complaint filed with the EEOC and the CHR, which is a public record. See Nickens v. New York State Dept. of Correctional Serv's., No. 94 Civ. 5425 (FB), 1996 WL 148479, at *1 (E.D.N.Y. 2996); McBride v. Routh, 51 F. Supp.2d 153, 155 (D.Conn. 1999).
The continuing violation exception to the 300-day rule "extends the limitations period for all claims of discriminatory acts committed under an ongoing policy of discrimination even if those acts, standing alone, would have been barred by the statute of limitations." Annis v. County of Westchester, 136 F.3d 239, 246 (2d. Cir. 1998). A continuing violation maybe found "where there is proof of specific ongoing discriminatory policies or practices, or where specific and unrelated instances of discrimination are permitted by the employer to continue unremedied for so lone as to amount to a discriminatory policy or practice." Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir. 1994) (quoting Miller v. International Telephone Telegraph Corp., 755 F.2d 20, 25 (2d Cir.)cert. denied, 474 U.S. 851 (1985)). A series of discriminatory actions make out a continuing violation when "there is a relationship between the series and an invalid, underlying policy." Connecticut Light Power Co. v. Secretary of United States Dep't of Labor, 85 F.3d 89, 96 (2d Cir. 1996). The continuing violation exception applies "where there are 'specific' or 'identifiable' discriminatory customs or practices, or specific and related acts that are tantamount to such customs or policies." Weeks v. New York State (Division of Parole), 273 F.3d 76, 83 (2d Cir. 2001).
Here, Plaintiff's complaint adequately alleges furtherance of a policy or practice constituting a continuing violation. Plaintiff alleges "continuous" discriminatory practices and conduct which, at least at one stage, "occurred almost daily" and alleges ongoing health effects on which she apparently rests her claim of disability discrimination. (Am. Compl. ¶¶ 10, 11, 31, 33.) In addition, Plaintiff alleges that she complained to "management" representatives more than once but her complaints went unheeded. (Id. ¶ 21.); see Quinn v. Green Tree Credit Corp., 159 F.3d 759, 766 (2d Cir. 1998). Plaintiff also alleges that one of the "management" representatives to whom she complained subsequently engaged in discriminatory conduct. There were no significant gaps in the discriminatory incidents alleged; Plaintiff cites several incidents per year, and related health problems, beginning in 1994. Cf. Weeks, 273 F.3d at 84 ("Absent unusual circumstances, a two-year gap is a discontinuity that defeats use of the continuing violation exception.") Reading the complaint in the light most favorable to the Plaintiff, the Court finds that Plaintiff has alleged sufficiently a pattern of continuing discrimination to warrant denial of Municipal Defendants' motion to the extent it seeks dismissal of her pre-July 13, 1996 ADA claims in Plaintiff's Seventh Claim for Relief as time barred.
Sufficiency of Pleadings
Municipal Defendants seek dismissal of the First (Title VII) and Seventh (ADA) Claims pursuant to Rule 12(b)(6), arguing that Plaintiff fails to state a cause of action because the complaint does not set forth the elements of a prima facie case with respect to these causes of action. In light of the Court's finding that it lacks subject matter jurisdiction of the First Claim, the Court will consider this element of the motion in connection with the Seventh Claim only.
In its February 2002 decision in Swierkiewicz v. Sorema N.A., 122 S.Ct. 992 (2002), the Supreme Court overturned Second Circuit authority requiring Title VII plaintiffs to plead facts constituting a prima facie case of discrimination under the framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 805-05 (1973). The Supreme Court held that plaintiffs must give defendants "fair notice of what [their] claims are and the grounds upon which they rest,"Swierkiewicz, 122 S.Ct. at 999, and need not plead facts sufficient to make out a prima facie case of discrimination. Id. See also, Sparrow v. United Airlines, Inc., 216 F.3d 1111, 1114 (D.C. Cir. 2000); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998). Under this standard, to survive a Rule 12(b)(6) motion to dismiss, a complaint need only provide a short and plain statement of the claim and the grounds on which it rests. See Fed.R.Civ.P. 8(a)(2); Conley v. Gibson, 355 U.S. 41, 47 (1957). In Swierkiewicz, the Supreme Court held that a complaint asserting claims of national origin and discrimination met the relevant pleading requirements by detailing "the events leading to the termination, provid[ing] relevant dates, and includ[ing] the ages and nationalities of at least some of the relevant persons involed with his termination." Swierkiewicz, 122 S.Ct. at 999.
Here, Plaintiff alleges that Municipal Defendants discriminated against her on the basis of her disability in violation of the ADA by "requir[ing] her to do unnecessary, heavy work while she was recuperating from shoulder injury," "persist[ing] in a pattern and a practice of discrimination based upon national origin, in the face of plaintiff's work-related illnesses," "temporarily discontinuing her health insurance while plaintiff was out on medical leave," and "transferring her to the Department of Tuberculosis, without consent . . . while plaintiff was out on medical leave and incapable of performing the requisite duties. . . ." (Am. Compl. ¶ 51.) Municipal Defendants argue that Plaintiff has not adequately plead that she suffers from a disability because she has not, inter alia, alleged facts sufficient to establish that any of her alleged impairments limits her substantially within the meaning of the ADA.
Plaintiff's alleged work-related illnesses as identified in her complaint include post-traumatic stress disorder and irritable bowel syndrome. (Am. Compl. ¶ 12.)
Defendant's motion to dismiss the Seventh Claim is denied. The complaint alleges facts sufficient to put defendants on notice that Plaintiff claims one or more impairments, discriminatory conduct in the form of adverse work assignments on account of the impairments, and/or failure to accommodate the impairments. In light of the Supreme Court's holding in Swierkiewicz, the Court finds the allegations of the complaint sufficient to meet the pleading standard established by Rule 8 of the Federal Rules of Civil Procedure and that Plaintiff has stated a claim sufficient to avoid dismissal under Rule 12(b)(6) of the Federal Rule of Civil Procedure.
Intentional Infliction of Emotional Distress
Plaintiff asserts that all defendants intentionally inflicted extreme emotional harm upon her by creating and/or allowing a pattern and practice of discrimination. Municipal Defendants argue that Plaintiff's claim against the D.O.H. and City should be dismissed because she failed to file a notice of claim within ninety days after the claim arose. Municipal Defendants also assert that Plaintiff's allegations against Individual Municipal Defendants Howard, Fiore and Rondon relate to actions allegedly taken in the scope of their employment as municipal employees with the D.O.H., such that Plaintiff was also required to file a notice of claim prior to bringing suit against Individual Municipal Defendants. Finally, Municipal Defendants assert that Plaintiff has failed to state a claim for intentional infliction of emotional distress under New York law.
New York law requires, as a condition precedent to a tort action against a municipality, the filing of a notice of claim within ninety days after the claim arises. N.Y. Gen. Mun. Law §§ 50-e(1)(a) and 50-i(1) (Consol. 2000). Plaintiff's undisputed failure to file a notice of claim in respect of the Municipal Defendants thus warrants dismissal of this claim against them.
The filing of a notice of claim is also a condition precedent to suit against a municipal employee when the municipality has a statutory obligation to indemnify her. N Y Gen. Mun. Law § 50-e(1)(b) (Consol. 2000); see also D'Angelo v. City of New York, 929 F. Supp. 129. 135 (S.D.N.Y. 1996); Mathie v. Fries, 935 F. Supp. 1284, 1301-02 (E.D.N.Y. 1996). New York General Municipal Law § 50-k(3) provides, in relevant part, that the
city [of New York] shall indemnify and save harmless its employees in the amount of any judgment obtained against such employees in any state or federal court, or in the amount of any settlement of a claim . . . provided that the act or omission from which such judgment or settlement arose occurred while the employee was acting within the scope of his public employment and in the discharge of his duties and was not in violation of any rule or regulation of his agency at the time the alleged damages were sustained. . . .
N Y Gen. Niun. Law § 50-k(3) (Consol. 2000). A notice of claim is, thus, a condition precedent to a suit against a public employees in their official capacity; however, the requirement is not applicable to municipal employees who act outside the scope of their public employment. See Hemrie v. City of New York, No. 96 Civ. 213 (DLC), 2000 WL 1234594 (S.D.N.Y. 2000); Finley v. Giacobbe, 827 F. Supp. 215, 223 n. 7 (S.D.N.Y. 1993). Plaintiff argues that the notice of claim requirement is inapplicable in this case because the Individual Municipal Defendants were not acting within the scope of their public employment or duties when they were engaged in the alleged pattern of discrimination. The allegations of the complaint do not exclude the possibility that the acts complained of were outside the scope of the Individual Municipal Defendants' employment. Accordingly, dismissal of the claims against them on notice of claim grounds is not warranted at this time.
Municipal Defendants further argue that Plaintiff's claim of intentional infliction of emotional distress should be dismissed for failure to state a claim. Under New York law, the elements of a claim for intentional infliction of emotional distress are "(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. The first element — outrageous conduct — serves the dual function of filtering out petty and trivial complaints that do not belong in court, and assuring that plaintiff's claim of severe emotional distress is genuine." Howell v. New York Post Co., Inc., 81.N.Y.2d 115, 121 (NA. 1993); see also Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996). The requirements of this standard are very strict, and "[l]iability 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." Murphy v. American Home Prod. Corp., 58 N.Y.2d 293, 303 (N.Y. 1983) (citing Restatement (Second) of Torts § 46, cmt. d).
New York courts are particularly cautious in finding intentional infliction of emotional distress in employment discrimination suits. See Lydeatte v. Bronx Overall Economic Development Corp., 00 Civ. 5433 (GBD), 2001 WL 180055, at *2 (S.D.N.Y. 2001); Ahmed, 2000 WL 1072299, at *10; Gerzog v. London Fog Corp., 907 F. Supp. 590, 604 (E.D.N Y 1995). In rare instances the New York courts have found complaints sufficient to state a claim for intentional infliction of emotional distress in the employment context. The claims have been accompanied by allegations of sex discrimination, and "more significantly battery." Gerzog, 907 F. Supp. at 604 (citing Koster v. Chase Manhattan Bank, N.A., 609 F. Supp. 1191, 1198 (S.D.N.Y. 1985) (finding conduct sufficiently outrageous where employer forced plaintiff into an ongoing sexual relationship); Wahlstrom v. Metro-North Commuter Railroad Co., 89 F. Supp.2d 506, 531 (S.D.N.Y. 2000) ("[S]ince the alleged harassment in the instant action included a sexual battery, the Court cannot say that such conduct did not, as a matter of law, constitute intentional infliction of emotional distress."); Persaud v. S. Axelrod Co., No. 95 Civ. 7849 (RPP), 1996 WL 11197, at *4 (S.D.N.Y. Jan. 10, 1996) ("[T]he actions alleged. particularly the assaults, give rise o a clear inference [that] they were intend to cause severe emotional distress.") In light of these precedents. even taking as true Plaintiff's allegations of disparate treatment, humiliation and insults, the harassment alleged does not meet the threshold level required to sustain a claim for intentional infliction of emotional distress. Municipal Defendants' motion to dismiss Plaintiff's claim for intentional infliction of emotional distress (Thirteenth Claim for Relief) is therefore granted.
CONCLUSION
For the foregoing reasons, Municipal Defendants' motion to dismiss the complaint is granted in part and denied in part. Plaintiff's Title VII claim (First Claim) and her City and State causes of action on the issue of disability (Ninth and Eleventh Claims) are dismissed as against the Municipal Defendants. Plaintiffs claim of intentional infliction of emotional distress (Thirteenth Claim) is dismissed as against both Municipal Defendants and Individual Municipal Defendants. The motion to dismiss is denied as to Plaintiff's ADA cause of action (Seventh Claim) and the City and State claims on the issue of national origin discrimination (Third and Fifth Claims).
Municipal Defendants also argue that Plaintiff's federal claims should be dismissed as against Individual Municipal Defendants. Plaintiff, however, does not assert her federal claims against Individual Municipal Defendants but asserts only a claim for intentional infliction of extreme emotional harm against them.
IT IS SO ORDERED.