Opinion
No. 95-CV-844 (RSP/RWS).
April 2, 1997
JOSEPH HEIN, ESQ., Attorney for Plaintiff, Altamont, NY.
HINMAN, STRAUB, PIGORS MANNING, P.C., Attorneys for Defendants, Albany, NY.
MEMORANDUM-DECISION AND ORDER
Defendants Loretex Corporation ("Loretex"), James Acker, Stephen Knuth, and Walter Stepnowski moved for dismissal of plaintiff's complaint pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff Robert A. Hudson opposed the motion. I heard argument on December 4, 1995.
BACKGROUND
Hudson, who is diagnosed with epilepsy, began work at Loretex in Guilderland, New York, in August of 1994. After working for approximately one month, Hudson inquired of Knuth, the assistant general manager, about the possibility of receiving a wage increase. Knuth informed Hudson that Hudson would receive an employment evaluation after 90 days of work and if that evaluation were positive, he would likely receive a pay increase. In November of 1994, Hudson completed 90 days of service. However, he never received a performance evaluation, despite repeated inquiries of Knuth.Also in November of 1994, Hudson suffered an epileptic seizure while at his home. Hudson's neurologist, Dr. Daniel J. Silverman, determined that the seizure may have been the result of Hudson's working a night shift, which Hudson had been doing since October of 1994, and recommended that Hudson be taken off that shift.
Around December of 1994, Hudson returned to work. In accordance with Dr. Silverman's instructions. Hudson was given a day shift, where he was assigned to work the beamer machine. Approximately one week after his return, Acker, the Guilderland site's general manager, and Knuth approached Hudson to ask how he liked the beamer machine. When Hudson indicated that he liked it. Acker said in a loud voice: "You should be a little more grateful, we changed your shift because you were supposedly sick, this has affected many people!" Compl. ¶ 30. Hudson said that he was grateful but did not want it thrown in his face. Acker allegedly responded: "I just never want you to forget it." Compl. ¶ 32.
Following this conversation, which was heard by a number of employees, Hudson felt that he had been accused of doing something wrong or of lying about his illness. Throughout December of 1994 and January of 1995, Hudson heard other employees complaining that he received preferential treatment because of a fictitious illness.
On January 26, 1995, while Hudson was working on the beamer machine with a co-worker, Acker and a shift supervisor approached Hudson and accused him of breaking the glass covering of a gauge on the beamer machine. Hudson said he did not break the cover, but Acker said he had a witness to the contrary. Hudson asked to meet the witness and was told he could do so the next day. According to Hudson, Acker then stated: "First you can't work your shift because you say you are sick and now you're breaking things." Compl. ¶ 43.
Approximately an hour later, Hudson went to see Knuth to determine why he was being accused of breaking the gauge cover. Knuth allegedly told Hudson that he had not been impressed with his work, that no one liked him, and that Knuth had "been good to [Hudson] and given [him] a break by changing [his] shift." Compl. ¶ 45. Hudson attempted to rebut the implied accusations, stating that he had not received any negative comments about his work and that he was directed by a doctor to change shifts. According to Hudson, Knuth became annoyed and ended the conversation.
The next day, Acker called Hudson into his office and, with Knuth, fired Hudson for intentionally breaking the gauge cover. Hudson denied any part in breaking the glass covering and demanded that he speak to the witness, who later was determined to be Stepnowski, a co-worker of Hudson's. Acker said there was no need to speak to the witness and closed the matter, thus terminating Hudson's employment.
On June 21, 1995, Hudson filed the complaint initiating this action. In his complaint, Hudson states ten claims for relief, alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq.; Section 711 of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-10; and Section 296 of the New York Human Rights Law ("HRL"), N.Y. Exec. Law § 296 (McKinney's 1993 Supp. 1997), as well as state common law claims for breach of contract, libel, slander, injurious falsehood and negligence. On September 20, 1995, defendants moved to dismiss the complaint pursuant to Rule 12(b)(6).
DISCUSSION
I. Standard
Under Rule 12(b)(6), I construe all factual allegations in the complaint in the light most favorable to the plaintiff, and I may not dismiss a complaint 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." Sykes v. James, 13 F.3d 515, 519 (2d Cir. 1993) (quotations omitted) cert. denied, 512 U.S. 1240 (1994). Furthermore, I must stringently apply this rule in this case, because plaintiff alleges violations of his civil rights.See Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir.) cert. denied, 115 S.Ct. 117 (1994). I accept each "material fact alleged in the complaint as true and construe all reasonable inferences in the plaintiff's favor." Id.
II. Discriminatory Harassment
Hudson's first and second claims are that Loretex and Acker discriminatorily harassed him in violation of the ADA and HRL. Defendants raise three arguments in support of dismissal of these claims. First, defendants contend that Hudson has failed to allege actionable harassment. Second, defendants contend that Acker cannot be held individually liable under the ADA and HRL. Third, defendants argue that Hudson failed to allege facts establishing Loretex's liability for the conduct of its employees under the theory of respondeat superior.
Both the ADA and HRL prohibit employers from discriminating on the basis of an employee's disability. See 42 U.S.C. § 12112(a); N.Y. Exec. Law § 296(1)(a) (McKinney 1993). Furthermore. Equal Employment Opportunity Commission ("EEOC") regulations implementing the equal employment provisions of the ADA make it "unlawful to coerce, intimidate, threaten, harass or interfere with any individual in the exercise or enjoyment of . . . any right granted or protected by [the equal employment provisions of the ADA]." 29 C.F.R. § 1630.12(b). Among the rights guaranteed by the ADA is the right of "reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the] covered entity can demonstrate that the accommodation would impose an undue hardship on the operation of the business of [the] covered entity." 42 U.S.C. § 12112(b)(5)(A).
A. Harassment
Defendants contend that Hudson fails to allege actionable harassment because the incidents of which he complains were isolated occurrences.
I analyze actions alleging discriminatory harassment under the standard employed in Title VII hostile work environment suits.See Haysman v. Food Lion, Inc., 893 F. Supp. 1092, 1106 (S.D. Ga. 1995). In order to state a claim under both the ADA and HRL for discrimination based upon harassment, a plaintiff must allege facts demonstrating that the alleged harassment created an objectively and subjectively hostile work environment. See Harris v. Forklift Sys. Inc., 114 S.Ct. 367, 370 (1993); Tomka v. Seiler Corp., 66 F.3d 1295. 1304 n. 4 (2d Cir. 1995) (New York courts apply same standard as federal courts). A work environment becomes "hostile" "[w]hen the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris, 114 S.Ct. at 370 (internal quotations and citation omitted). The determination of whether a hostile work environment exists must be based on the totality of circumstances, and generally cannot be based upon isolated incidents of harassment. See Kotcher v. Rosa Sullivan Appliance Ctr., Inc., 957 F.2d 59, 62-63 (2d Cir. 1992).
Hudson alleges that Acker confronted him approximately one week after Hudson's transfer to the day shift. At that encounter, according to Hudson, Acker told Hudson he should be grateful for being transferred because of his "supposed" illness. Compl. ¶ 30. These comments allegedly were made loudly enough for Hudson's co-workers to hear the suggestion that Hudson was not actually ill. Hudson alleges further that after Acker's comments, several co-workers accused Hudson of receiving preferential treatment based upon his "phoney illness." Id. ¶ 34. Finally, Hudson alleges that Acker continued to refer to Hudson's illness during the gauge cover dispute leading to Hudson's dismissal from Loretex.
Hudson's allegations, if taken as true, describe a pattern of harassment that existed throughout his tenure on the day shift. Moreover, Hudson alleges that he took medication because of anxiety triggered by the comments. Given the alleged scope of the harassment and the emotional effects Hudson asserts resulted from it, I find that Hudson alleges sufficient facts to state a claim for discriminatory harassment under the ADA and HRL.
B. Acker's Liability
Defendants argue that Acker cannot be held individually liable for any discrimination because he is not an "employer" within the meaning of the ADA or HRL.
In addition, Hudson also makes a claim pursuant to 29 C.F.R. § 1630.12(b) (which does not require a pattern of harassment.
The ADA defines an employer to be "a person engaged in an industry affecting commerce who has fifteen or more employees for each working day in each of 20 or more calendar weeks in the current or preceding calendar year . . ., and any agent of such person." 42 U.S.C. § 12111(5)(A). Interpreting the identical language in Title VII, the Second Circuit has held that supervisory employees are not employers within this definition and therefore are not individually liable. See Tomka, 66 F.3d at 1313. Thus, I find that Acker cannot be held liable for the alleged harassment of Hudson under the ADA.
However, under New York law, individuals who "actually participate" in the discrimination can be held individually liable pursuant to the aiding and abetting provision of N.Y. Exec. L. § 296(6) (McKinney 1993). Id. at 1317. Because Acker is alleged to be the primary harasser, I find that Acker can be held individually liable under New York law for the alleged discrimination against Hudson.
C. Loretex's Liability
Defendants argue that Loretex cannot be held vicariously liable for the conduct of its employees because it did not have knowledge of the allegedly discriminatory harassment.
Under federal law, an employer may be held liable for the discriminatory actions of a supervisor when "the supervisor uses his actual or apparent authority to further the harassment." Karibian v. Columbia Univ., 14 F.3d 773, 780 (2d Cir.)cert. denied, 512 U.S. 1213 (1994). In the present case, Acker confronted Hudson in his capacity as general manager. Hudson also alleges that Acker used his authority to make personnel decisions to further the discrimination. Based upon the allegations in the complaint, I find that Hudson alleges sufficient facts to demonstrate that Acker used his authority to further the harassment of Hudson. Therefore, Hudson meets the pleading burden for holding Loretex liable for the discriminatory harassment of Hudson under the ADA.
New York does not recognize the doctrine of respondeat superior in the discrimination context. See State Div. of Human Rights v. St. Elizabeth's Hosp., 66 N.Y.2d 684, 687 (1985); Vanscoy v. Namic USA Corp., 650 N.Y.S.2d 877, 878 (3d Dep't 1996); Father Belle Community Ctr. v. New York State Div. of Human Rights, 221 A.D.2d 44, 53 (4th Dep't 1996). However, the employer can be held liable for the discriminatory conduct of a high-level managerial employee under the theory that the employee's "'participation in the wrongdoing renders the employer blameworthy, and arouses the institutional conscience for corrective action.'" Father Belle, 221 A.D.2d at 54 (quoting Loughry v. Lincoln First Bank, N.A., 67 N.Y.2d 369, 380-81 (1986)) (internal quotation omitted). Because Acker was the general manager and highest ranking Loretex official at the Guilderland site, I find Hudson sufficiently pled Loretex's liability for Acker's discriminatory conduct under the HRL.
III. Discriminatory Discharge
In his third and fourth claims, Hudson alleges that Loretex and Acker terminated his employment because of his disability in violation of the ADA and HRL. Defendants argue that Hudson only alleges isolated and ambiguous statements, which are insufficient to state a claim.
Defendants again argue that Acker cannot be held individually liable under the ADA and HRL. For the reasons statedsupra, I find that Acker can be held liable for the discharge of Hudson under the HRL, but not under the ADA.
Hudson bears the burden of establishing a prima facie case of discriminatory discharge. See St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993). A plaintiff makes out a prima facie case by showing that he is a member in a protected class, is qualified for the position, was subjected to an adverse employment decision, and the circumstances surrounding that employment decision give rise to an inference of discrimination.See id.; Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253 n. 6 (1981); Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994); see also Citibank, N.A. v. New York State Div. of Human Rights, 643 N.Y.S.2d 68, 69 (1st Dep't) (applying same standard under New York law), appeal denied, 88 N.Y.2d 815 (1996). This standard is not intended to be onerous and has frequently been described as "de minimis." See. e.g., Chambers, 43 F.3d at 37.
In support of his claims, Hudson alleges that he suffers from epilepsy, which is a disability under both the ADA and HRL, and that he received an accommodation due to his disability. He also alleges that the quality of his work was never criticized prior to the incidents surrounding the broken gauge cover. On more than one occasion during the period that Hudson worked the day shift, Acker commented about his illness and the accommodation made to Hudson in light of this illness. The last comment made by Acker occurred the day immediately preceding the termination of Hudson's employment, and took place in the context of discussing the matter that ultimately led to this termination. Finally, according to Hudson, he was refused access to the witness who claimed that Hudson broke the gauge cover.
Based upon these allegations, I find that Hudson makes out a prima facie case of discriminatory discharge. There is little question that he falls within a protected class by virtue of his disability, see 29 C.F.R. § 1615.103, and that he received an adverse employment decision. Likewise, no one appears to question that Hudson was otherwise qualified to operate the beamer machine at the time his employment was terminated. Last, the combination of Acker's comments and the suspicious nature of the accusations linking Hudson to the broken gauge cover support an inference that Hudson was discharged because he exercised his right to receive an accommodation. Therefore, Hudson states a claim for discriminatory discharge.
I find only that Hudson makes out a prima facie case of discrimination. The burden is now upon defendants to allege a legitimate non-discriminatory reason for the decision to terminate Hudson's employment. See Burdine, 450 U.S. at 254. At that point, the onus will shift to Hudson to prove that defendant's justification is a pretext for intentional discrimination. See id. at 256.
IV. Breach of Contract
Hudson's fifth claim is that Loretex violated New York contract law by breaching its promise to make a 90-day performance evaluation of Hudson and to thereafter give him a wage increase. A precondition to recovery for a breach of contract is the allegation of facts showing damages. See Lexington 360 Assocs, v. First Union Nat'l Bank, 651 N.Y.S.2d 490, 492 (1st Dep't 1996). Where the plaintiff fails to allege damages beyond mere speculative loss, a breach of contract claim should be dismissed.See id.
In this case, Hudson alleges that he was denied a job evaluation. According to Hudson, Knuth stated that if Hudson's evaluation were positive, he "would likely receive an hourly increase of $0.50 to $1.00." Compl. ¶ 17. However, it is not certain that Hudson would have received a positive performance evaluation and, even if he had, there is no guarantee he would have received a wage increase. Furthermore, there is no way to determine the exact amount of the wage increase even if he were given one. Given the combination of uncertainties regarding any possible wage increase, the loss of the hoped-for pay raise is too speculative in nature to constitute a valid damages claim.See Corbin on Contracts § 1003 (1964) (there must be "a reasonable degree of certainty" that the hoped-for gain would have occurred). Absent the possibility of a wage increase, the evaluation has no value. Therefore, I find that Hudson fails to state a claim for breach of contract because he has failed to allege damages from the alleged breach.
V. Libel and Slander
Hudson's sixth and seventh claims for relief allege that defendant Stepnowski committed slander and libel by making both oral and written defamatory statements to the effect that Hudson had broken the gauge cover. Hudson further alleges that Loretex is vicariously liable for the tortious acts of its employee Stepnowski. Defendants argue that these claims should be dismissed because plaintiff has failed to satisfy the specificity requirements of New York C.P.L.R. 3016 and because any statements made by Stepnowski are not susceptible to defamatory interpretation.
Defendants also contend that Hudson's defamation claim must be dismissed because he fails to allege publication. Specifically, defendants argue that if both Stepnowski and Loretex are alleged to be liable for the defamatory statement, no third party exists for there to be publication. This argument is specious. The third party to whom Stepnowski's statement was made was Acker, who is not alleged to be liable under these claims.
Under New York law, "[i]n an action for libel or slander, the particular words complained of shall be set forth in the complaint." N.Y. Civ. Prac. L. R. § 3016(a) (McKinney 1991). Words are defamatory per se if they impute general misconduct in a person's profession, trade or business. See Attas v. Park E. Animal Hosp Inc., 652 N.Y.S.2d 280, 281 (1st Dep't 1997). However, where a plaintiff is charged with only a single instance of misconduct, defamation is not actionable unless special damages are pled. See November v. Time Inc., 13 N.Y.2d 175, 178 (1963).
With respect to the sufficiency of the pleading, Hudson has met the specificity requirement of C.P.L.R. 3016(a). In his complaint, Hudson alleges that defendant Stepnowski provided both oral and written statements that "Mr. Hudson broke the glass." Compl. ¶ 54. Thus, I find that Hudson has pled defamation and slander with sufficient particularity.
With regard to defendants' substantive contention, I find that the statement "Mr. Hudson broke the glass," is reasonably susceptible to defamatory interpretation because it accuses plaintiff of general misconduct in the course of his trade or business. Although there was only a single instance of the alleged misconduct, plaintiff has adequately pled special damages by alleging that he lost his employment as a consequence of Stepnowski's statement. See Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 260 (1st Dep't 1995). Accordingly, Hudson's defamation claims against Stepnowski survive defendants' motion to dismiss.
Loretex did not question its vicarious liability for Stepnowski's statements on this motion, and I reach no conclusion on this issue.
VI. Injurious Falsehood and Negligent Firing
In his eighth claim for relief, Hudson alleges that Stepnowski committed the tort of injurious falsehood by falsely asserting that Hudson intentionally broke the gauge cover. In his ninth claim, Hudson alleges that Loretex failed to exercise due care in terminating his employment.
Defendants argue that Hudson is an at-will employee and therefore cannot state a claim for injurious falsehood or wrongful discharge. See Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 300-01 (1983) (abusive or wrongful discharge);Miller v. Richman, 184 A.D.2d 191, 194 (4th Dep't 1992) (injurious falsehood). Although Hudson alleges in his memorandum of law that he is covered under a collective bargaining agreement, he does not plead that agreement in his complaint. Absent a legal entitlement to continued employment, Hudson cannot claim injurious falsehood. Miller, 184 A.D.2d at 194. Moreover, there is no cause of action in tort in New York for wrongful discharge. Ingle v. Glamore Motor Sales, 73 N.Y.2d 183, 773-74 (1989). Therefore, Hudson's eighth and ninth claims must be dismissed. Hudson is, of course, free to amend his complaint to state a claim for breach of the collective bargaining agreement.
VII. Failure to Give Notice
In his tenth claim, Hudson alleges that Loretex violated 42 U.S.C. §§ 12115 and 2000e-10, which require employers to post an EEOC notice explaining employees' rights. However, no private cause of action exists to enforce this provision. Under the ADA, "any person alleging discrimination on the basis of disability in violation of any provision of [the ADA]" may pursue a private cause of action pursuant to the enforcement provisions of Title VII. 42 U.S.C. § 12117(a); see 42 U.S.C. § 2000e-5(b). The term "discrimination" is defined at length in the Act, and does not encompass failure to post EEOC notices. See id. § 12112(b). Hudson does not allege "discrimination" by alleging violation of the notice provisions and therefore does not state a claim upon which relief can be granted.
CONCLUSION
For the foregoing reasons, defendant's motion pursuant to Rule 12(b)(6) is granted in part and denied in part.
IT IS SO ORDERED.