Opinion
01 CIV. 2736 (DLC)
March 5, 2002
Neil Gronowetter, Law Offices of Tom Stickel, Bronx, New York, For Plaintiff.
Arthur J. Robb, Clifton Budd DeMaria, LLP, New York, NY, For Defendant Flintlock Construction.
OPINION AND ORDER
Plaintiff Norma Varela ("Varela") brought this action for employment discrimination against defendants Flintlock Construction, Inc. ("Flintlock"), Andrew Weiss ("Weiss") and Gregory Steck ("Steck"). In an Opinion and Order dated February 13, 2002 ("February 13 Opinion"), this Court denied defendant Flintlock's motion for judgment on the pleadings and dismissal of the complaint in its entirety. Flintlock now moves, pursuant to Southern District of New York Local Civil Rule 6.3, for reconsideration of one portion of the February 13 Opinion. The motion is granted.
BACKGROUND
The facts alleged in the complaint are set out in some detail in the February 13 Opinion and need not be repeated here. When Flintlock moved for judgment on the pleadings, plaintiff's remaining claims were for unlawful discharge, "sexual harassment," and "conspiracy to cover up." As noted in the February 13 Opinion, Flintlock is the only defendant remaining in the action. With respect to Varela's first cause of action for unlawful discharge, the February 13 Opinion noted that "New York does not recognize the tort of wrongful discharge," but found that the facts alleged in the complaint were sufficient to state a cause of action under the New York State Human Rights Law, Executive Law § 290 et seq. ("Human Rights Law"), despite the fact that the complaint did not make any mention of a statutory cause of action. As for Varela's second cause of action for sexual harassment, the February 13 Opinion stated that the allegations in the complaint sufficiently stated a claim for sexual harassment under the Human Rights Law. Finally, the February 13 Opinion rejected Flintlock's argument that Varela's civil conspiracy claim should be dismissed because she did not allege a viable underlying tort. Flintlock requests again that the civil conspiracy claim be dismissed because Varela cannot maintain a common law tort claim for either unlawful discharge or sexual harassment.
DISCUSSION
Local Rule 6.3 requires a party moving for reconsideration to "set forth concisely the matters or controlling decisions which counsel believes the court has overlooked." Thus, to be successful on a motion for reconsideration, the movant must demonstrate that the Court has overlooked controlling decisions or factual matters that were presented to it on the underlying motion. See Local Rule 6.3; Eisemann v. Greene, 204 F.3d 393, 395 n. 2 (2d Cir. 2000); Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); Int'l Top Sports S.A. v. Pan American Sports Network Int'l, No. 01 Civ. 9668 (HB), 2002 WL 226657, at *1 (S.D.N.Y. Feb. 14, 2002). Courts narrowly construe this standard and apply it strictly against the moving party so as to prevent the party from using the motion as a substitute for appeal, and to "avoid repetitive arguments on issues that have been considered fully by the court." Wechsler v. Hunt Health Systems, Ltd., No. 94 Civ. 8294 (PKL), 2002 WL 252684, at *5 (S.D.N.Y. Feb. 21, 2002); see also Schrader, 70 F.3d at 257 ("[A] motion to reconsider should not be granted where the moving party seeks solely to relitigate an issue already decided."). Consequently, the moving party may not "advance new facts, issues or arguments not previously presented to the Court." Polsby v. St. Martin's Press, Inc., No. 97 Civ. 690 (MBM), 2000 WL 98057, at *1 (S.D.N.Y. Jan. 18, 2000) (citation omitted). The decision to grant or deny the motion is within the sound discretion of the district court. Devlin v. Transp. Communications Int'l Union, 175 F.3d 121, 132 (2d Cir. 1999) (citing McCarthy v. Manson, 714 F.2d 234, 237 (2d Cir. 1983)).
The February 13 Opinion expressly accepted Flintlock's contention that there is no common law tort action available in New York for Varela's dismissal claim. It states that "New York does not recognize the tort of wrongful discharge." Varela v. Flintlock Construction, Inc., No. 01 Civ. 2736 (DLC), 2002 WL 221598, at *2 (S.D.N.Y. Feb. 13, 2002). The February 13 Opinion did not specifically address, however, Flintlock's arguments with respect to a common law cause of action for sexual harassment. Instead, it found that the allegations in the complaint were sufficient to state a claim of harassment under the Human Rights Law. The Court accepts this opportunity for clarification. Under New York common law, an employer cannot be held liable under the doctrine of respondeat superior for an employee's alleged sexual harassment of a co-worker absent evidence that the employee acted in furtherance of the employer's business. Judith M. v. Sisters of Charity Hospital, 93 N.Y.2d 932, 933 (1999); Adams v. New York City Transit Authority, 88 N.Y.2d 116, 119 (1996). Moreover, a claim against Flintlock based upon its alleged negligence in failing to supervise or prevent its employee's harassing conduct is barred by the New York Workers' Compensation Law. N.Y. Work. Comp. Law § 29(6); Torres v. Pisano, 116 F.3d 625, 640 (2d Cir. 1997). Varela has not alleged any facts to support an inference that the alleged harasser acted in furtherance of Flintlock's business. Nonetheless, a complaint alleging employment discrimination "must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief.'" Swierkiewicz v. Soreman N.A., — S.Ct. ___, 2002 WL 261807, at *2 (Feb. 26, 2002) (citing Fed.R.Civ.P. 8(a)(2)). Varela's complaint provides fair notice of the basis for her claims. She has described the harassment to which she was subjected and the employees involved. Applying the pleading standard above, the allegations in the complaint may be sufficient at this stage in the proceedings to support a common law claim of sexual harassment. In connection with its motion for judgment on the pleadings, Flintlock argued that, because Varela did not allege a viable underlying tort, her third cause of action for civil conspiracy should be dismissed. It is well-settled law that New York does not recognize conspiracy as an independent tort. Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57 (1999); Loeb Partners Realty v. Edward A. Sears Associates, P.C., 733 N.Y.S.2d 390, 391 (1st Dep't 2001). Having assumed that Varela's unlawful discharge and sexual harassment claims would be dismissed outright, Flintlock did not address any other potential infirmity with the civil conspiracy claim. The Court having found that the pleadings are adequate to allege statutory causes of action, Flintlock now argues that a civil conspiracy claim may not be joined to a statutory claim under the Human Rights Law. Resolution of this issue has importance to the parties because punitive damages are not available under the Human Rights Law, see Thoreson v. Penthouse Int'l, Ltd., 80 N.Y.2d 490, 499 (1992), but can be awarded for civil conspiracy. Flintlock has cited no authority, either in support of its motion for judgment on the pleadings or in connection with this motion for reconsideration, establishing that a cause of action for civil conspiracy may be linked to an underlying common law tort, but may not be linked to an underlying tort having a statutory basis, and independent research has uncovered no case law making a distinction in this regard between torts having a basis in statute as opposed to the common law. Accordingly, Flintlock's motion to dismiss Varela's civil conspiracy claim on this ground is denied.
While exceptions to this rule exist for "tortious acts which the employer committed intentionally or which were perpetrated at the employer's direction or instigation," the facts alleged in the complaint do not bring Varela's claim within these terms, and no such argument has been advanced in connection with this motion for reconsideration. Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450 (LAP), 1999 WL 796172, at *6 (S.D.N.Y. Sept. 30, 1999).
In response to Flintlock's scope of recovery argument, Varela notes for the first time that the New York City Administrative Code § 8-502 permits recovery of compensatory and punitive damages for discrimination on the basis of sex. Arguments regarding a cause of action for which no prior notice has been given are not properly considered on this motion for reconsideration. Polsby, 2000 WL 98057, at *1.
CONCLUSION
Defendant Flintlock's motion for reconsideration is granted. Upon reconsideration, Flintlock's motion to dismiss Varela's cause of action for civil conspiracy is denied.
SO ORDERED.