United States District Court, Eastern District of New York
December 24, 1990
HARILAL PATEL, M.D., PLAINTIFF,
LUTHERAN MEDICAL CENTER, INC., DEFENDANT.
The opinion of the court was delivered by: Glasser, District Judge:
MEMORANDUM AND ORDER
Plaintiff brings this action for age discrimination under the
Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 et
seq., New York Human Rights Law, Exec.Law § 296 et seq., and
under state common law for tortious interference with contract.
Plaintiff alleges that he was employed by Lutheran Medical
Center (LMC) as Chief of its Ambulatory Services Clinic until
he was informed on June 23, 1987 of his termination effective
July 28, 1987. Plaintiff alleges that he was harassed and
terminated because of his age, and that he filed complaints on
June 15, 1987 and July 6, 1987 against LMC with the Equal
Employment Opportunity Commission (EEOC) based on age
discrimination. He further alleges that in retaliation for his
bringing a claim, LMC lured his employee, Dr. Kumar, from his
business relationship with plaintiff, and that he filed a
charge with the EEOC on March 29, 1989 for this retaliatory
His complaint alleges six causes of action. The first three,
not at issue in this motion, are pursuant to the ADEA. The
fourth cause of action is brought pursuant to the ADEA for
retaliation by tortious interference with contract. The fifth
cause of action is brought under New York Human Rights Law,
Exec.Law § 296, a state employment discrimination statute. And
the sixth cause of action is for common law tortious
interference with contract. This motion to dismiss, based on
multiple grounds, is aimed at part of the fourth and the entire
fifth and sixth causes of action. Having evaluated each of
those grounds, for the reasons below the court grants
defendant's motion as to the fourth and sixth causes of action,
and denies the motion as to the fifth.
I. Prior State Proceeding.
Defendant first moves to dismiss that portion of plaintiff's
fourth cause of action which alleges that defendant retaliated
against him for bringing age discrimination
charges by interfering with his employment contract with Dr.
Kumar, on the ground that it is barred for plaintiff's failure
to first bring this claim in a state proceeding. ADEA § 14(b),
29 U.S.C. § 633(b), provides that "no suit may be brought under
section 626 of this title before the expiration of sixty days
after proceedings have been commenced under the State law."
Defendant is quite correct that the Second Circuit has
"confirmed the need for the commencement of state proceedings
as an essential prerequisite to the institution of a civil
action in a federal court under ADEA." Defendant's Memorandum,
at 6. However, the Second Circuit has also explicitly held that
once a claim is brought before the proper state agency, a
plaintiff need not file a second claim with such agency in
order to assert that second claim in federal court if the claim
is "reasonably related" to the initial claim. Goodman v.
Heublein, Inc., 645 F.2d 127, 131 (2nd Cir. 1981). In that
case, the court held:
Although § 14(b) of the ADEA, 29 U.S.C. § 633(b)
(1976), requires a claimant to file a complaint
with the appropriate state agency before proceeding
in a federal court, Oscar Mayer & Co. v. Evans,
441 U.S. 750, 99 S.Ct. 2066, 60 L.Ed.2d 609 (1979), the
section is to be construed to accord with the
similar requirements of § 706(c) of Title VII of
the Civil Rights Act of 1964, 42 U.S.C. § 2000e-5(c)
(1976), 441 U.S. at 756, 99 S.Ct. at
2071, Under Title VII, we have held that a claimant
need not file additional claims with the federal
administrative agency when those claims, arising
subsequent to the initial filing are reasonably
related to the allegations of an initial claim that
was properly filed. Kirkland v. Buffalo Bd. of Ed.,
622 F.2d 1066 (2nd. Cir. 1980). Similarly here, we
conclude that [plaintiff], having brought his age
discrimination claim to the state agency, did not
have to file a second claim with that agency in
order to assert his retaliation claim in federal
Id. Defendant concedes that the initial claim was properly
On the issue of what constitutes "reasonably
related," Kirkland provides guidance. In that case, plaintiff's
later claim, which the court permitted to be litigated, was
found to be "reasonably related" when it was "in retaliation
for [plaintiff's] initiation of litigation" over the employment
discrimination claim. Kirkland v. Buffalo Bd. of Educ.,
622 F.2d 1066
, 1068 (2d Cir. 1980). Since Patel's claim of tortious
interference with contract is said in his fourth cause of
action to be in retaliation for his filing charges of age
discrimination with the EEOC, under Kirkland it is reasonably
related. Thus, the court's holding in Goodman v. Heublein
applies in this case to obviate the requirement of a prior
state filing on this later claim. This ground for dismissal is
II. Statute of Limitations.
a. The ADEA Statute of Limitations on Civil Actions.
Defendant next moves to dismiss the retaliation claim under
§ 626(d) on the ground that it is barred by the ADEA statute of
Limitation of actions under the ADEA is governed by 29 U.S.C. § 255,
259. 29 U.S.C. § 626(e). Section 255 provides that an
action under the ADEA must be commenced "within two years after
the cause of action accrued, except that a cause of action
arising out of a willful violation may be commenced within
three years after the cause of action accrued." 29 U.S.C. § 255.
Plaintiff, in his fourth cause of action, First Amended
28. The actions of Defendant in terminating
plaintiff and for inducing Dr. Kumar to terminate
his relationship with Plaintiff were in
retaliation for Plaintiff's having filed charges
of age discrimination
with the EEOC and this suit and thus constituted
willful violations of rights secured to Plaintiff
by Sec. 623(d) of the ADEA.
Because "willfulness" is alleged, the claim is subject to the
three year statute of limitations. The act complained of
allegedly occurred in June or July 1988, and the complaint was
filed on August 27, 1990. The complaint does, therefore, state
a timely cause of action for retaliation.
b. 300-Day Limit on Filing of EEOC Claims.
Defendant also contends that plaintiff's fourth cause of
action is barred as untimely because no charge was filed with
the EEOC within 300 days of the alleged discrimination,
pursuant to 29 U.S.C. § 626(d)(2). However, under the Second
Circuit's holding in Kirkland v. Buffalo Bd. of Educ.,
622 F.2d 1066, 1068 (2nd Cir. 1980), no subsequent claim need be filed
with the EEOC when the basis of a subsequent claim would be
reasonably related to that of an earlier claim timely filed:
Under Title VII, we have held that a claimant need
not file additional claims with the federal
administrative agency when those claims, arising
subsequent to the initial filing, are reasonably
related to the allegations of an initial claim
that was properly filed.
Goodman v. Heublein, 645 F.2d at 131 (noting that § 14(b) of
the ADEA, 29 U.S.C. § 633(b), "is to be construed to accord
with the similar requirements of § 706(c) of Title VII of the
Civil Rights Act of 1964.") Thus, plaintiff did not have to
file at all with the EEOC on the retaliation charge, let alone
within 300 days. This basis for dismissal of part of the fourth
cause of action is therefore rejected.
III. Failure to State a Claim for Retaliation under the ADEA.
Defendant next argues that tortious interference with the
Patel-Kumar contract is not cognizable as a discriminatory
practice under the ADEA. Defendant's argument has two elements.
First, defendant argues that the ADEA only bars discriminatory
acts against employees, and that since the employment
relationship between plaintiff and defendant was terminated on
July 28, 1987, no cause of action can lie. Second, defendant
argues that even if a cause of action could be asserted by a
former employee for retaliation, it couldn't be based on this
allegation of tortious interference with contract.
Defendants are clearly in error on the first argument. The
Second Circuit has held that federal antidiscrimination
statutes, such as the ADEA, prohibit "discrimination related to
or arising out of an employment relationship, whether or not
the person discriminated against is an employee at the time of
the discriminatory conduct." Pantchenko v. C.B. Dolge Co.,
581 F.2d 1052, 1055 (2d Cir. 1978); accord, Silver v. Mohasco
Corp., 602 F.2d 1083, 1090 (2d Cir. 1979), rev'd on other
grounds, 447 U.S. 807, 100 S.Ct. 2486, 65 L.Ed.2d 532 (1980);
Caruso v. Peat, Marwick, Mitchell & Co., 664 F. Supp. 144, 150
But the cases which stand for this proposition also
demonstrate the limits of conduct cognizable as retaliation
under the ADEA, and consistency with this line of cases
requires that defendant's motion be granted as to plaintiff's
fourth cause of action. The ADEA, 29 U.S.C. § 623(d), states:
It shall be unlawful for an employer to
discriminate against any of his employees or
applicants for employment . . . because such
individual . . . has opposed any practice made
unlawful by this section, or because such
individual . . . has made a charge, testified,
assisted, or participated in any manner in an
investigation, proceeding, or litigation under
The courts of appeals have uniformly determined that three
elements comprise a
prima facie case of retaliatory discrimination under this
[I]n order to establish [a claim for retaliation],
the plaintiff must show: first, protected
participation or opposition under Title VII known
by the alleged retaliator; second, an employment
action or actions disadvantaging persons engaged
in protected activities; and third, a causal
connection between the first two elements, that
is, a retaliatory motive playing a part in the
adverse employment action.
Grant v. Bethlehem Steel Corp., 622 F.2d 43
, 46 (2d Cir. 1980).
Accord, Hamann v. Gates Chevrolet, Inc., 910 F.2d 1417
Cir. 1990); Petitti v. New England Tel. & Tel. Co.,
909 F.2d 28
, 33 (1st Cir. 1990); Webster v. Department of the Army,
911 F.2d 679
(Fed. Cir. 1990); Cooper v. City of North Olmsted,
795 F.2d 1265
, 1272 (6th Cir. 1986); McDaniel v. Temple Independent
School Dist., 770 F.2d 1340
, 1346 (5th Cir. 1985). Defendants
claim in their motion that the second element of the prima
facie case has not been established; that is, that the alleged
tortious interference with the Kumar-Patel contract, if there
is one, does not constitute an employment action.
The court agrees. Plaintiff's claim, to the extent that it is
based on the Hospital's alleged luring away of Dr. Kumar from
his relationship with Dr. Patel, fails to allege an employment
action required by the statute. The alleged action is not one
which interferes with either plaintiff's current employment or
in efforts he might be undertaking to secure future employment.
Such interference is central to a claim of retaliation in the
cases which have sustained that claim. In Silver v. Mohasco
Corp., 602 F.2d at 1090 (2d Cir. 1979), for instance,
"blacklisting" a terminated employee was held to be sufficient
to state a claim for retaliation because it prevented the
plaintiff from securing new employment. In Pantchenko v. C.B.
Dolge, 581 F.2d at 1055, the fact that plaintiff's former
employer refused to provide her with an employment reference in
retaliation for EEOC charges stated a claim as well because it
hampered her efforts to find new work after termination. In
Caruso v. Peat, Marwick, Mitchell & Co., 664 F. Supp. at 150, an
employer's discontinuation of a contract with employee, who was
working for the employer as a consultant after termination,
stated a claim because it interfered with plaintiff's current
employment with the same employer.
In contrast, in Passer v. American Chemical Soc'y,
701 F. Supp. 1 (D.D.C. 1988), this element was lacking, and the
court would not find retaliation under the ADEA. In that case,
defendant had scheduled a national meeting at which a symposium
in plaintiff's honor was planned. Two days before the meeting,
defendant informed plaintiff that the symposium would be
postponed because of plaintiff's pending age discrimination
claims. In spite of defendant's admission of retaliatory
motive, the district court held that such action by the
defendant did not state a claim for retaliation:
Although [29 U.S.C. § 623(d)] does not speak in
terms of former employees, the Court finds
plaintiff's arguments that former employees
comprise a protected group persuasive.
Nevertheless, the Court finds that defendant's
alleged conduct — cancelling a symposium honoring
plaintiff — is not retaliation as intended by the
ADEA. Although in honor of plaintiff's service, the
symposium was not part of plaintiff's past or
future employment relationship with the defendant,
nor did the cancellation affect his relationship
with potential employers.
Id. at 3.
The law in this and other circuits compels this conclusion in
the case at bar. There was no adverse employment action.
Plaintiff was no longer in the employ of defendant, and had not
been for roughly two years. Thus the action had no impact on
plaintiff's current employment situation. Neither was he
undertaking efforts to find a new job, so the alleged act in no
way hindered prospective employment. Were the allegation of
defendant's tort of interference with contract in this case
sufficient to state a claim for retaliation, it would surely
mock the uniform requirement of "employment action or actions."
viewed, the action has an impact on an employer-employee
relationship, since it impacted the relationship of Dr. Kumar
with plaintiff. But a claim of retaliation requires an impact
on the plaintiff's ability to continue or procure employment.
The alleged tort had no such impact, and none is claimed. The
court therefore holds that plaintiff's fourth cause of action
fails to state a claim insofar as it relies upon the allegation
of tortious interference with contract and grants defendant's
motion to dismiss it in part.
IV. Subject Matter Jurisdiction.
Next, defendant moves to dismiss plaintiff's fifth and sixth
causes of action for lack of subject matter jurisdiction by
urging this court to reject the exercise of pendent
jurisdiction over those claims. The fifth cause of action
The actions of defendant, as hereinabove
described, constitute violations of § 296(1)(a) and
§ 296(3-a)(a) of the [New York Human Rights Law].
The sixth cause of action states:
The actions of Defendant as hereinabove described,
constitute tortious interference with Plaintiff's
contractual and advantageous business relationship
then in effect between Plaintiff and Dr. Kumar.
First Amended Complaint, ¶¶ 30, 32. Defendant argues that these
causes of action, and the facts alleged in paragraphs 18-21 and
27-28 of the First Amended Complaint, will "raise complex
issues of facts and state laws, which will emerge as the
predominant issues in this case." Defendant's Memorandum, at
12. Defendant cites a number of cases in which pendent
jurisdiction has been declined by the federal court because of
the confusion and complexity state claims would add to the
federal discrimination litigation. However, the cases cited by
both sides on this matter point to the conclusion that those
courts which have rejected pendent jurisdiction as to New York
state claims have rejected it as to state common law claims,
i.e., claims other than those brought under New York
anti-discrimination statutes. Finding the reasoning of these
cases, as well as other considerations, compelling, the court
finds it proper to exercise pendent jurisdiction over the New
York Human Rights Law ("HRL") claim, but disavows pendent
jurisdiction over the tortious interference with contract
a. The Human Rights Law Claim.
As noted in Realmuto v. Yellow Freight System, Inc.,
712 F. Supp. 287 (E.D.N.Y. 1989), the Second Circuit has never
decided whether a court should exercise pendent jurisdiction
over a state law claim based on New York Human Rights Law when
the underlying federal action is based on the ADEA. On this
question the district courts are split.
In Realmuto, plaintiff brought suit under the ADEA, New York
HRL, and for breach of contract and intentional infliction of
emotional distress. Defendant moved to dismiss all but the
federal claim. The court noted that the HRL allows recovery of
compensatory damages, including damages for mental anguish, and
that therefore an HRL claim could involve questions of
plaintiff's mental state irrelevant to a violation of the ADEA.
Because such proof could, in the court's view, prejudice the
jury in plaintiff's favor, and could confuse the jury on the
damages issues, the court favored rejecting pendent
jurisdiction. The court finally rejected jurisdiction having
been swayed by one more factor: Since compensatory damages are
not available under the ADEA when a claim is undergoing
informal conciliation at the EEOC, plaintiffs would have no
incentive to settle at that stage if a HRL claim for
compensatory damages could be asserted once they got to federal
The court in Burger v. Health Insurance Plan of Greater New
York, 684 F. Supp. 46 (S.D.N.Y. 1988), came to the same
conclusion based only on the issue of confusion caused by the
different entitlement to damages under the federal statute and
the state statute. See also, Giuffre v. Metropolitan Life Ins.
Co., 129 F.R.D. 71 (S.D.N.Y. 1989); Deutsch v. Carl Zeiss,
Inc., 529 F. Supp. 215, 219 (S.D.N.Y. 1981) (rejecting pendent
jurisdiction over a HRL claim for
compensatory damages because to assert it "would allow a
claimant to do indirectly what he could not do directly").
But the opposite result has frequently been reached, on the
theory that the considerations underlying the HRL claims are
not different from those underlying the ADEA claims, and that
the remedies issue is surmountable. On this basis, the court in
Kaczor v. City of Buffalo, 657 F. Supp. 441 (W.D.N.Y. 1987)
asserted pendent jurisdiction over an HRL claim in a federal
ADEA age discrimination suit stating,
For the most part, the standard of proof for the
state law claim mirrors that of the standard of
proof for the ADEA claim. For the most part, the
remedies are the same under both federal law and
state law. The exception is recovery for emotional
distress, which is prohibited under the ADEA but
permitted under New York Exec.Law. § 296.
Id. at 446. A similar result was reached by the court in Martel
v. Dean Witter Reynolds, Inc., 738 F. Supp. 53, 57 (E.D.N Y
1990). That court wrote:
[Defendant] further urges dismissal of the pendent
claim because of the risk of jury confusion in
considering a federal claim that does not permit
an award of money damages for pain and suffering
together with a state claim that does. The court
is unpersuaded. See Tasaka v. DDB Needham
Worldwide, Inc., 729 F. Supp. 1014 (S.D.N.Y. 1990)
(declining to dismiss state Human rights claim
pendent to ADEA claim.) The federal and state
claims here at issue involve "parallel issues,"
both of fact and law. Indeed, the same policies are
advanced by the two claims. See Miller v. Lovett,
879 F.2d 1066, 1071 (2d Cir. 1989) (and cases cited
therein). Under such circumstances, efficiency,
economy and even fairness are best served by a
single adjudication of the dispute. Id. Such
potential confusion regarding damages as defendant
anticipates will be dealt with through the use of
specific interrogatories in a form of special
verdict. Id. at 1073.
Accord, Giuntoli v. Garvin Guybutler Corp., 726 F. Supp. 494
(S.D.N.Y. 1989); Selbst v. Touche Ross & Co., 587 F. Supp. 1015
(S.D.N.Y. 1984); Giuntoli v. Garvin Guybutler Corp.,
726 F. Supp. 494 (S.D.N.Y. 1989).*fn3
This court embraces the view expressed in Martel v. Dean
Witter Reynolds, Inc., 738 F. Supp. at 57, for the following
reasons. First, I am unpersuaded that the court could not
manage at trial the issue of different damages allowable under
the ADEA and HRL. Second, I do not believe the adjudication of
such issues in the same proceeding would subvert the federal
policy embodied in the ADEA. Third, I am unpersuaded that many
claimants would forego an administrative solution providing
back pay and reinstatement, if they could win that, to bring
expensive, time-consuming, uncertain litigation in federal
district court. This court shall therefore exercise pendent
jurisdiction over the HRL claim.
b. The Tortious Interference with Contract Claim.
The elements of this tort in New York are (1) the existence
of a valid contract, (2) defendant's knowledge of the contract,
(3) defendant's intentional procuring of the breach of the
contract, and (4) damages. Key Bank of Northern New York, N.A.
v. Lake Placid Co., 103 A.D.2d 19, 479 N.Y.S.2d 862 (3rd Dep't
1984). In deciding whether or not to exercise pendent
jurisdiction, the factors to be considered by the court are
(a) whether judicial economy, convenience and
fairness to the litigants would be served by
having the pendent state law claims determined in
a single proceeding, (b) whether trying the
pendent state law claims will cause jury confusion
and (c) whether the pendent state claims present
unsettled questions of state law.
Moor v. County of Alameda, 411 U.S. 693, 93 S.Ct. 1785, 36
L.Ed.2d 596 (1973). The only significant overlap of proof
between the federal and HRL claims and this state tort will
likely be on the second and third elements of the tort —
whether or not the defendant knew of a contract and
intentionally lured Kumar away to harm Patel. As to the first
and the fourth elements, the state tort presents significant
questions of proof not presented by the discrimination claims.
On the basis of such a requirement of different proofs, many
courts have rejected pendent jurisdiction over state law claims
in discrimination suits. In Arnell v. Pan American World
Airways, 611 F. Supp. 908, 909 (S.D.N.Y. 1985), the court in an
ADEA suit rejected pendent jurisdiction over state law claims
for breach of employment contract, breach of covenant of good
faith and fair dealing, intentional fraud and deceit, and
negligent misrepresentations. The court reasoned that
plaintiff's state claims raise different issues
and require different kinds of proof. . . . The
kinds of issues created by [the employment
contract] claim include whether the documents
created a contract, whether defendant made oral
statements and, if so, whether any such
statements, together with the documents, created a
contract; and the effect of a "reservation of
management rights" clause such as that which
defendant had in its manual.
In Bouchet v. National Urban League, Inc., 730 F.2d 799 (D.C.
Cir. 1984), then-Judge Scalia rejected pendent jurisdiction in
a Title VII suit over state law claims of "sexual extortion"
and tortious interference with contract. His reasoning focused
on the issue of the different remedies available under the
There is a great discrepancy between the
relatively limited equitable relief available
under Title VII (reinstatement and back pay) and
the much broader relief sought under this
appellant's state causes of action (full
compensatory and punitive damages), so that the
pendent claims might well become the predominant
element of the lawsuit.
Id. at 805 (citing cases which reject pendent jurisdiction over
similar common law claims). Similarly, in McLaurin v. Fischer,
768 F.2d 98
(6th Cir. 1985), the Sixth Circuit rejected pendent
jurisdiction in an ADEA suit over a state law claim for
tortious interference with business relations, also focusing
ultimately on the issue of damages. That court reasoned that
the proof required for the state claim is
irrelevant to establishing a federal age
discrimination claim. Further, punitive damages
are recoverable for tortious interference with
business relations if the interference is
attributable to ill will, spite, or hatred. . . .
A jury could have a difficult time differentiating
between punitive damages recoverable under the
tortious interference claim and the liquidated
damages recoverable under the age discrimination
Id. at 105. See also, Lazic v. Univ. of Pennsylvania,
513 F. Supp. 761 (E.D.Pa. 1981) (rejecting, in a Title VII case,
pendent jurisdiction over state claims for tortious
interference with contract). But see, People v. Holiday Inns,
Inc., 656 F. Supp. 675 (W.D.N.Y. 1984) ("Pendent claims need not
be identical to the federal causes of action alleged, and
plaintiffs' tort claims, being derived from the same underlying
facts as their Title VII and ADEA claims, may properly be heard
by this Court.").
The federal and the state common law claims in this case will
certainly present different issues of damages. On the one hand,
to the extent that the interference may be found to be
retaliatory, the jury shall have to craft an award according to
its impact on plaintiff's efforts to vindicate his right to
certain employment free from age discrimination. On the other
hand, to the extent that the interference is a tortious attack
on a business relationship, the jury would have to measure
damages according to criteria which focus on the loss of some
measured business advantage.
Unlike the adjudication of the HRL claim, the tortious
interference with contract claim does involve different policy
considerations from the federal (and state) age discrimination
statutes. With the focus of this claim being the tort itself,
and not on the interference with contract as an expression of
discrimination, the goal of this litigation may shift away from
the vindication of civil rights and become a dispute over the
harm caused by an improper business practice.
For this reason and for others well expressed by those courts
rejecting pendent jurisdiction over this claim, defendant's
motion to dismiss the sixth cause of action is granted.
V. Prayers for Compensatory and Emotional Damages.
Defendant moves to strike plaintiff's claim for compensatory
damages and damages for mental anguish. Under New York Human
Rights Law, Exec.Law § 297(4)(c)(iii), a plaintiff is entitled
to recover compensatory damages for violations of § 296.
Damages for mental anguish are also allowed. Kaczor v. City of
Buffalo, 657 F. Supp. at 446. As this claim may properly be
heard in this court, defendant's motion to strike plaintiff's
prayer for this relief is denied.
Defendant's motion to dismiss part of the fourth and the
entire sixth cause of action is herein and hereby granted.
Defendant's motion is denied as to plaintiff's fifth cause of
action. Defendant is granted leave to amend its answer to
respond to plaintiff's first amended complaint, its time to do
so expiring 20 days from the date of this order.