("Laznik Decl."), at P3. Finally, Amtrak contends that Bradley was not as qualified as the successful applicant for the Division Administrator position, Thomas Gormley ("Gormley"), see Brown Declaration ("Brown Decl."), at P6, who had worked as an Inspector for Amtrak for twelve years. See P.E. "21".
Since Amtrak has presented evidence which rebuts the inference of discrimination raised by Bradley's prima facie case, Bradley now acquires the burden of proving, by a preponderance of the evidence, that Amtrak's stated reasons are pretextual. To meet this burden, Bradley has presented evidence that she was more qualified than the successful applicant for each of the three positions. Since there is conflicting evidence in the record with respect to this issue, however, the Court concludes that there is a genuine issue of material fact as to whether Amtrak's articulated nondiscriminatory reasons are pretextual.
As to the Assistant to V.P. position, the record establishes that McGrail, the successful candidate, was more experienced in budgetary matters, including budget preparation and monitoring. See Cannito Decl, at P4. McGrail also had a more extensive educational background as she had completed two years of college,
id., whereas Bradley's college background consisted of only a few courses in history, English, and psychology. See P.E. "18". The record also indicates, however, that Bradley was more experienced in administrative policies and coordinating those policies with other departments. See P.E. "40".
With respect to the Senior Administrator position, the Amtrak manager who oversaw the selection process, Joseph S. Laznik, states that Kimble was selected because of her four years experience in Amtrak's Maintenance of Way and Structures Department and her excellent performance as a substitute for the former Senior Administrator. See Laznik Decl., at P3. The record establishes, however, that Bradley had more experience in each area required in the job description. Specifically, Bradley had more experience in railroad operations, handling claims and grievances, and she had five more years in the Maintenance of Way Department. See P.E. "18". Moreover, the record establishes that Kimble did not receive a very favorable rating at her job interview. See P.E. "17". Since the record is replete with conflicting evidence, the trier of fact must make the final determination as to whether Bradley was not hired because she was less qualified or if this assertion is merely pretextual.
Bradley's discrimination claims based upon her denial for the Division Administrator position also raise a genuine issue of material fact on the issue of pretext. The record establishes that Gormley, the successful applicant, had worked as an Amtrak Inspector for twelve years. See P.E. "21". The record also establishes, however, that Bradley had sixteen years experience in Amtrak's Transportation Department and was familiar with the duties required of the Division Administrator. See supra, p.12. Moreover, Gormley had no college background, see P.E. "21", whereas Bradley had accumulated some college credits. See P.E. "37". Thus, the claims based upon the Division Administrator position also raise issues of fact requiring resolution by a jury.
To further establish that Amtrak's stated reasons for denying her promotions are pretextual, Bradley has introduced evidence of her successive denials of promotions as well as Amtrak's "general policy and practice with respect to minority employment," as permitted under McDonnell Douglas. See 411 U.S. at 804-05. Specifically, Bradley points to the fact that she applied for and was denied acceptance for eight positions at Amtrak over a period of twenty-nine months. Although Bradley does not seek recovery for discrimination based upon all the positions for which she was denied promotion,
such denials at least raise a genuine issue of material fact as to whether Amtrak discriminated against Bradley because of her race. Additionally, the record contains evidence that other black employees, despite their qualifications, were denied promotions for three positions at Amtrak. For example, Elizabeth B. Jackson, a black woman, was denied promotion to the Assistant to V.P. position despite her experience at Amtrak and extensive educational background, including a college degree and twenty-three hours of graduate credits.
See P.E. "13". Three other black employees with college degrees and relevant experience, Janet O'Conner, Donna Livingston, and James R. Brawner, were similarly denied promotion to positions filled by white applicants.
Although it is unclear whether these denials are the result of racial discrimination, the record raises a genuine issue of material fact as to whether they are indicative of a pattern of discrimination at Amtrak and, consequently, whether Amtrak's stated reasons are pretextual.
IV. State Tort Claims
A. Intentional Infliction of Emotional Distress
Bradley also sues Amtrak for intentional infliction of emotional distress ("IIED"). Specifically, the complaint alleges that Amtrak "engaged in a pattern of outrageous and extreme conduct directed toward plaintiff which caused her severe emotional injuries." Complaint, at P27.
The law governing IIED claims in New York is well-settled. An action for IIED may lie "for conduct exceeding all bounds usually tolerated by decent society." Fischer v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 992, 373 N.E.2d 1215 (1978) (quoting Prosser on Torts § 12, at 56 (4th ed. 1971)). In order to establish an IIED claim, the plaintiff must show that the defendant either intentionally or recklessly caused the plaintiff's emotional suffering. Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 741, 480 N.E.2d 349 (1985); Fischer, 43 N.Y.2d at 557, 402 N.Y.S.2d at 992-93. According to the Second Restatement of Torts: "liability 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." Restatement (Second) of Torts § 46 subd. cmt. d. (1977). It is also important to note that liability has not been recognized for ordinary employment discrimination claims. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86 (1983) (plaintiff not permitted to convert ordinary age discrimination claim into claim for IIED).
Consequently, Bradley cannot sustain an IIED claim. First, her claims are essentially ordinary employment discrimination claims. Second, the record is devoid of any evidence that Amtrak acted either intentionally or recklessly in causing Bradley's emotional suffering. See Freihofer, 65 N.Y.2d at 143, 490 N.Y.S.2d at 741. Accordingly, Amtrak's motion for an order granting it summary judgment dismissing Bradley's IIED claim (Fifth Claim for Relief) is granted.
B. Prima Facie Tort Claim
Bradley also alleges prima facie tort as an alternative to her employment discrimination and IIED claims.
Complaint, at P30. According to the complaint, Amtrak committed prima facie tort as its conduct was "intentional and was without justification or excuse and plaintiff suffered special damages through the loss of her promotions, reputation, wages, and benefits." Complaint, at P31.
In order to recover for prima facie tort in New York, plaintiff must prove (i) the intentional infliction of harm, (ii) resulting in special damages,
(iii) without any excuse or justification, (iv) by an act or series of acts which would otherwise be lawful. Freihofer, 65 N.Y.2d at 142-43, 490 N.Y.S.2d at 741 (citing Curiano v. Suozzi, 63 N.Y.2d 113, 117, 480 N.Y.S.2d 466, 469, 469 N.E.2d 1324 (1984); Burns Jackson Miller Summit & Spitzer v. Lindner, 59 N.Y.2d 314, 332, 464 N.Y.S.2d 712, 720, 451 N.E.2d 459 (1983)).
The Court finds that Amtrak is entitled to summary judgment on three alternative grounds: (1) Bradley has failed to show that defendant intentionally caused harm, (2) Bradley has failed to properly allege special damages with particularity, and (3) the Court has upheld three of Bradley's employment discrimination claims.
1. Failure to Prove Intent
In order to establish that a defendant intentionally caused harm, a plaintiff must show that the defendant intended to cause harm, not merely that the defendant intentionally engaged in certain conduct. Marcella v. Arp Films, Inc., 778 F.2d 112, 119 (2d Cir. 1985) (citing Benton v. Kennedy - Van Saun Manufacturing and Engineering Corp., 2 A.D.2d 27, 28 152 N.Y.S.2d 955, 957 (1st Dept. 1956)). Further, a plaintiff cannot establish intentional infliction of harm when the injury is "incidental to a defendant's primary business motive and not a significant part of a chosen plan of harassment." Marcella, 778 F.2d at 119. Thus, the discriminatory incidents must have occurred with the sole intention of injuring plaintiff. Id. In the present case, Bradley has failed to adduce any evidence which suggests that Amtrak engaged in discriminatory activity solely in order to injure her.
Alternatively, Bradley has failed to plead special damages with the requisite particularity. With respect to Bradley's prima facie tort claim, the complaint alleges only that "plaintiff suffered damages in the amount of $ 50,000, together with punitive damages in the amount of $ 500,000." Complaint, at P32. These damages are an amalgamation of "loss of her promotions, reputation, wages, and benefits." Complaint, at P31. New York courts are clear that allegations of damages in round figures without any further explanation do not satisfy the requirement that special damages be pled with particularity. See O'Keefe, 714 F. Supp. at 634; Azby Brokerage Inc. v. Allstate Ins. Co., 681 F. Supp. 1084, 1088 (S.D.N.Y. 1988); Conniff v. Dodd, Mead & Co., 593 F. Supp. 266, 270 (S.D.N.Y. 1984). Accordingly, the Court finds that Bradley has failed to plead special damages with the requisite particularity.
3. Other Claims Upheld
Finally, as noted above, Bradley concedes that her prima facie tort claim cannot survive if any employment discrimination claim or the IIED claim is upheld. Since Bradley's employment discrimination claims based upon denials of the Assistant to V.P., Senior Administrator, and Division Administrator positions survive Amtrak's summary judgment motion, Bradley's prima facie tort claim (Sixth Claim for Relief) is alternatively dismissed on this ground.
For the reasons set forth above, Amtrak's motion for summary judgment, pursuant to Rule 56 of the Federal Rules of Civil Procedure, is granted in part and denied in part. Specifically, Amtrak's motion for summary judgment as to Bradley's federal employment discrimination claim under 42 U.S.C. § 1981 (Seventh Claim for Relief) and state employment discrimination claim under Human Rights Law Section 296 (First Claim for Relief) arising out of the rejection of her application for the Head Clerk position is granted and those claims are dismissed with prejudice. Amtrak's motion for summary judgment is also granted as to Bradley's IIED claim (Fifth Claim for Relief) and prima facie tort claim (Sixth Claim for Relief) and those claims are dismissed with prejudice. Amtrak's motion for summary judgment with respect to the remaining six claims, however, is denied. Specifically, Amtrak's motion to dismiss Bradley's employment discrimination claims under 42 U.S.C. § 1981 and New York Human Rights Law Section 296 arising out of the rejection of her application for the Assistant to V.P. (Eighth and Second Claims for Relief, respectively), Senior Administrator (Ninth and Third Claims for Relief, respectively), and Division Administrator positions (Tenth and Fourth Claims for Relief, respectively), is denied.
SHIRLEY WOHL KRAM
UNITED STATES DISTRICT JUDGE
Dated: New York, New York, July 6, 1992