tortious interference with prospective business relationship is granted.
Failure to State a Claim for Intentional Infliction of Emotional Distress
Defendants also maintain that Agugliaro's seventh cause of action should dismissed as it fails to state a claim for intentional infliction of emotional distress. Defendants suggest that Agugliaro's allegations with respect to his discharge from Brooks Brothers and the circumstances leading up thereto fall far short of the level of outrageousness required to withstand a motion to dismiss.
Agugliaro maintains, however, that if he is able through discovery to substantiate his allegations that his termination and the accusations made against him by the defendants were false and in bad faith, a jury would be able to find that the defendants acted outrageously and intolerably and, as such, are liable to him for intentional infliction of emotional distress.
To survive a motion to dismiss, Agugliaro must allege that a person, by extreme and outrageous conduct, intentionally or recklessly caused him severe emotional distress. Fischer v. Maloney, 43 N.Y.2d 553, 557 (1978); See Restatement (Second) of Torts § 46 (Subd ). Comment (d) to Section 46 of the Restatement (Second) Torts notes that "liability has been found only where the conduct has been so outrageous in character and 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." The facts as alleged by Agugliaro fall far short of this strict standard. Further, as there is no cause of action in New York for abusive or wrongful discharge of an at-will employee, Agugliaro should not be allowed to evade this rule by casting his cause of action in terms of intentional infliction of emotional distress.
Accordingly, Plaintiff's seventh cause of action is dismissed.
Request for Compensatory and Punitive Damages
Defendants argue that Agugliaro's request for compensatory and punitive damages in his first, second and third caused of action, and his request for punitive damages in his fifth cause of action should be stricken.
Under ADEA and Title VII
Defendants contend that Agugliaro's request for compensatory and punitive damages in his first and second causes of action should be denied as both are unavailable under the ADEA and Title VII.
Agugliaro suggests that since the law on damages for each of the causes of action is constantly evolving the court should consider his requests for compensatory and punitive damages. Too, Agugliaro maintains that, through discovery, further facts may be uncovered which may impact the type of damages to which he may be entitled.
Compensatory and punitive damages are unavailable under both the ADEA and Title VII. See Great American Federal Savings and Loan Association v. Novotny, 442 U.S. 366, 375 (1979) ("the majority of the federal courts have held that the Act [Title VII] does not allow a court to award general or punitive damages" (citations omitted)); Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 147-148 (2d.Cir 1984) (compensatory and punitive damages are not available under the ADEA).
Under NY Human Rights Law
Similarly, punitive damages are not available in employment discrimination actions brought under the New York Human Rights Law. Conan v. Equitable Capital Management Corp., 774 F. Supp. 209, 210 (S.D.N.Y. 1991) (relying on legislative history, statutory construction, and fact that punitive damages are not available under equivalent federal statutes, namely, Title VII and the ADEA).
Defendants also maintain that even if this court grants Agugliaro's cross-motion to amend his third cause of action to allege a violation of the proper ERISA section Agugliaro's request for compensatory and punitive damages should be stricken based upon relevant case law.
Agugliaro cites no case law to contradict the Defendants' contentions. In fact, this District has made it clear that "punitive and other extra-contractual damages are unavailable under ERISA claims." Lawford v. N.Y. Life Insurance Co., 739 F. Supp. 906, 914 (S.D.N.Y. 1990).
Therefore, I will grant the Defendants' motion to strike the compensatory and punitive damages claims from the first and second causes of action and the punitive damages claim from the fifth cause of action. While I will allow Agugliaro to amend his complaint to allege the proper ERISA section, the extra-contractual and punitive damages must be stricken.
For all of the above stated reasons, I am: (1) dismissing the fended Complaint as against Marks & Spencer, Ltd. and Marks & Spencer U.S., Inc.; (2) granting Agugliaro's cross-motion to include Marks & Spencer p.l.c. in his second Amended Complaint; (3) providing Agugliaro with 60 days to effect proper service on Marks & Spencer p.l.c. but denying Agugliaro's request for expedited service; (4) granting Defendants' motion to dismiss the first and second causes of action as against Marks & Spencer U.S., Inc. and Marks & Spencer Ltd., but not as against Marks & Spencer p.l.c.; (5) granting Agugliaro's cross-motion to amend his Amended Complaint to allege the proper section of ERISA; (6) denying Defendants' motion to dismiss Agugliaro's fourth cause of action; (7) directing Agugliaro to replead his fifth cause of action within ten days to show that he is entitled to bring such claim in this court; (8) denying Defendants' motion to dismiss Agugliaro's claim for tortious interference with contract but granting Defendants' motion to dismiss Agugliaro's claim for tortious interference with prospective business relationship; (9) granting Defendants' motion to dismiss Agugliaro's claim for intentional infliction of emotional distress; and (10) striking Agugliaro's request for compensatory and punitive damages in his first, second and third causes of action and for punitive damages in his fifth cause of action. In addition, Defendants' motion for sanctions and its motion for attorney's fees incurred as a result of their motion to compel discovery are denied.
DATED: New York, New York
July 28, 1992
KEVIN THOMAS DUFFY, U.S.D.J.