work-related stress, but that Loden responded "good, that's what I intended." In addition, Fitzsimmons was carboned or otherwise aware of the memoranda that Loden sent to Spence, and was present at some of the alleged incidents.
However, there is only one indication in the record that plaintiff complained to any higher superior. In his deposition, plaintiff testified that he "reported verbally to the claims manager in Buffalo," and "made a written report" about his perceived relationship between his work and stress. Plaintiff further testified that the claims manager told him that the information was forwarded to Maryland Casualty. However, there is no copy of the report, nor any further testimony about plaintiff's following up on his complaint. Further, there is no indication in the record that plaintiff was foreclosed from any avenues of complaint by Loden, Fitzsimmons, Maryland Casualty in general, or anyone at Maryland Casualty in particular. See, Kotcher, 957 F.2d at 63. (plaintiff made use of company procedure for reporting discrimination).
In addition, Maryland Casualty subsequently removed Loden from his position of supervision of branch managers, and demoted Fitzsimmons, based on an employee complaint and an internal report. The fact that this action was taken in January of 1989, after plaintiff left Maryland Casualty and commenced this suit is unavailing. This is especially so since plaintiff did not apply for either total-disability benefits or retirement benefits until April or May of 1989. Therefore, prior to any formal act memorializing his leaving his job, plaintiff could have been considered a Maryland Casualty employee, have recovered from his disability, returned to work sometime between November of 1988 and January of 1989, and still have had Loden and Fitzsimmons as his immediate supervisors. Therefore, Maryland Casualty's actions regarding Loden and Fitzsimmons constitute "doing something" about employee complaints, not only toward the remaining branch managers, but also toward plaintiff. Therefore, plaintiff has not demonstrated that the behavior of Loden and Spence is sufficiently imputed to Maryland Casualty in order to demonstrate a hostile work environment.
3. Plaintiff's Wrongful Discharge and Intentional Tort Claims
Plaintiff has asserted causes of action for wrongful discharge and for intentional tort. Plaintiff has also asserted a cause of action for punitive damages based on defendants' alleged intentional tort. Defendant has moved for summary judgment seeking dismissal of plaintiff's claims.
The New York Court of Appeals has expressly provided that "this court has not and does not now recognize a cause of action for abusive or wrongful discharge of an employee; such recognition must await action of the Legislature." Murphy v. American Home Products Corp., 58 N.Y.2d 293, 297, 461 N.Y.S.2d 232, 233, 448 N.E.2d 86 (1983). This holding was predicated on the Court's conclusion that "there is no implied obligation of good faith and fair dealing in an employment at will, as that would be incongruous to the legally recognized jural relationship in that kind of employment relationship." Ingle v. Glamore Motor Sales, Inc., 73 N.Y.2d 183, 188, 538 N.Y.S.2d 771, 773, 535 N.E.2d 1311 (1989), citing Murphy, 73 N.Y. at 304-05, 461 N.Y.S.2d at 237.
In holding that there is no cause of action in tort for the abusive or wrongful discharge of an at-will employee, the New York Court of Appeals also held that an employee may not attempt to recast such a claim against his employer as one for intentional infliction of emotional distress or prima facie tort. Murphy, 58 N.Y.2d at 303-04, 461 N.Y.S.2d at 236-37; Ingle, 73 N.Y.2d at 188-89, 538 N.Y.S.2d at 773-74. Finally, the Court also refused to adopt by law, an implied covenant of good faith discharge in at will employment. Murphy, 58 N.Y.2d at 304, 461 N.Y.S.2d at 237; Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 335, 514 N.Y.S.2d 209, 212, 506 N.E.2d 919 (1987).
In applying New York law, federal courts have recognized and enforced the limitations expressed in Murphy. See, e.g., Piesco v. City of New York Dep't of Personnel, 753 F. Supp. 468, 478-79 (S.D.N.Y. 1990); Winters v. General Motors Corp., 715 F. Supp. 54, 58 (W.D.N.Y. 1988).
The instant plaintiff is clearly an at will employee and has plead a constructive discharge at the hands of his employers. Plaintiff has neither plead nor made any reference to an express contractual right limiting defendants' otherwise unfettered right to discharge plaintiff either actually or constructively. Accordingly, this Court need not undertake an implied covenant of good faith analysis. See Sabetay, 69 N.Y.2d at 334-35, 514 N.Y.S.2d at 212; Sabatowski v. Fisher Price Toys, 91-CV-269S (W.D.N.Y. April, 29, 1991). Therefore, the limitations of Murphy apply directly, and plaintiff may not recover against his employers under theories of wrongful discharge, intentional tort, prima facie tort, intentional infliction of emotional distress, or any other "substitute nomenclature or causes." Ingle, 73 N.Y.2d at 188, 528 N.Y.S.2d at 774.
Based upon the foregoing it is clear that plaintiff's actions for wrongful discharge and intentional tort cannot stand, for plaintiff may not recover under causes of action that are not recognized under the law of New York.
Furthermore, as the District Court in the Southern District of New York held in Piesco, this Court further finds that even assuming that plaintiff's actions for prima facie tort and intentional infliction of emotional distress were not foreclosed by Murphy, the elements of these claims are lacking. 753 F. Supp. at 479. Prima facie tort requires an intentional infliction of harm, resulting in special damages, without excuse or justification, by acts which would otherwise be lawful. O'Keefe v. Niagara Mohawk Power Corp., 714 F. Supp. 622, 633 (N.D.N.Y. 1989), citing Freihofer v. Hearst Corp., 65 N.Y.2d 135, 142-43, 490 N.Y.S.2d 735, 741, 480 N.E.2d 349 (1985). Further, if the malicious motive is tainted by anything (including profit, self-interest, or business advantage) other than an intent to harm the plaintiff, the action does not lie. Id.
In the instant case, defendants have offered plaintiff's poor performance as their justification for Loden's and Fitzsimmon's behavior toward plaintiff. Additionally, plaintiff himself has speculated that Loden's behavior was motivated by an intent to increase his profits and standing in the company. Therefore, this Court finds that plaintiff is unable to demonstrate a prima facie case for prima facie tort.
Similarly, a cause of action for intentional infliction of emotional distress "predicates liability on the basis of extreme and outrageous conduct, which so transcends the bounds of decency as to be regarded as atrocious and intolerable in a civilized society." Friehoffer, 65 N.Y.2d at 143, 490 N.Y.S.2d at 741; see also Restatement of Torts, Second § 46, comment d. In viewing the facts as alleged by plaintiff, this Court finds no significant indication that defendants' conduct as to plaintiff has reached the level of extreme and outrageous conduct required under New York law to state a prima facie case of intentional infliction of emotional distress. Although this Court recognizes that Loden was removed from his supervisory responsibility over branch managers, for reasons including his intimidating manner of management in his region and possibly "other managerial problems in the Mid-Atlantic Region," it cannot conclude that this action was taken because of Loden's treatment of plaintiff, and most importantly it cannot conclude that Loden's treatment of plaintiff was extreme and outrageous.
Therefore, defendants motion for summary judgment against plaintiff's causes of action for wrongful discharge and intentional tort are granted.
E. Plaintiff's Partial Summary Judgment Motion
Plaintiff has moved for partial summary judgment seeking relief for past and future long-term disability benefits under a Long Term Disability Plan provided to employees of Maryland Casualty by American General Group Insurance Company.
Based upon this Court's findings herein granting summary judgment to defendants against all causes of action asserted in plaintiff's second Amended Complaint, this Court denies plaintiff's motion for partial summary judgment for past and future long-term disability benefits. In so doing, this Court makes no findings concerning the interpretation or applicability of the long-term disability plans in question.
It bears mentioning, however, to note that defendants contend that plaintiff's partial summary judgment motion should be denied, since the relief requested by plaintiff is properly pursued under an Employee Retirement Income Security Act ("ERISA") claim which plaintiff has failed to plead. Plaintiff replies that his Amended Complaint "properly seeks damages for Defendants' denial of his disability benefits," by reasserting the conclusory paragraphs in his Amended Complaint, as referred to above, and by concluding that "plaintiff has clearly claimed that Defendants unlawfully damaged Plaintiff in loss of disability benefits." Plaintiff also asserts that defendants failed to answer his interrogatories regarding long-term disability benefits, and then concludes "it may therefore not be denied that Plaintiff has claimed damages against Defendants herein for loss of disability benefits and that Defendants have been placed on full notice that Plaintiff claims Defendants improperly denied his claim for long-term disability benefits."
Initially, this Court notes the well-settled rule of law that the damages sought dictate the legal cause of action under which such damages are properly recompensable. It is insufficient to merely recite a series of facts and to conclude that the plaintiff is entitled to recover certain damages, without reference to the appropriate theory of liability and how the requested damages flow from that theory. Different theories may include different duties of care, burdens of proof, defendants, and damages.
Consequently, this rule of pleading is important in a district court's consideration of a summary judgment motion, since the court's evaluation of the "materiality" of the facts in issue "is determined by the applicable substantive law." Corcoran v. GAB Business Services, Inc., 723 F. Supp. 966, 968 (S.D.N.Y. 1989), citing Anderson v. Liberty Lobby, 477 U.S. 242, 247-48, 106 S. Ct. 2505, 2509-10, 91 L. Ed. 2d 202 (1986). Therefore, a litany of facts may be material to summary judgment under one theory of substantive law, but inapplicable and immaterial to another. Consequently, in order to recover recompensable damages under the proper theory, that theory must be properly plead in the complaint.
In the instant case, plaintiff simply does not properly plead under ERISA. This Court, therefore, need not address defendants' contention any further.
F. Defendants' Motion for Sanctions
Defendants contend that sanctions should be imposed upon plaintiff and plaintiff's counsel, pursuant to Fed.R.Civ.P. 11, for several reasons. These include not informing the Court of the existence of the 1987 long-term disability policy (LTD Plan 1) sent to plaintiff's counsel on November 1, 1991; moving for partial summary judgment on a cause of action not plead in the complaint; moving against defendants who have no liability under the Plan; and failing to withdraw the partial summary judgment motion after defendants' counsel informed plaintiff's counsel of these alleged deficiencies. Plaintiff indirectly responds to these allegations by proposing interpretations of the respective long-term disability Plans, and claiming that a cause of action for disability benefits was adequately plead in his complaint.
This Court denies defendants' motion for sanctions pursuant to Fed. R. Civ. P. 11. Viewing the entire record, this Court cannot conclude that plaintiff's claim and partial summary judgment motion were filed in bad faith or with improper motives.
For the reasons set forth above, this Court denies plaintiff's motion to strike defendants' respective Answers; grants defendant American General Corporation's motion for summary judgment; grants in part and denies in part defendants' motion to strike several paragraphs of several affidavits submitted by plaintiff; grants defendants' motion for summary judgment on plaintiff's age discrimination claims under the ADEA and New York's Human Rights Law; grants defendants' motion for summary judgment on plantiff's intentional tort and wrongful discharge claims; denies plaintiff's motion for partial summary judgment for long-term disability benefits; and denies defendants' motion for sanctions.
IT HEREBY IS ORDERED, that plaintiff's motion to strike defendants' respective Answers, pursuant to Fed.R.Civ.P. 37 (b)(2)(C), is DENIED.
FURTHER, that defendant American General Corporation's motion for summary judgment on plaintiff's second Amended Complaint is GRANTED.
FURTHER, that defendants' motion to strike several paragraphs of several affidavits submitted by plaintiff in opposition to defendants' motion for summary judgment is GRANTED IN PART and DENIED IN PART.
FURTHER, that defendants' motion for summary judgment on plaintiff's age discrimination claims under the ADEA and § 296 of the New York Executive Law is GRANTED.
FURTHER, that defendants' motion for summary judgment on plaintiff's claims for intentional tort and wrongful discharge is GRANTED.
FURTHER, that plaintiff's motion for partial summary judgment for long-term disability benefits is DENIED.
FURTHER, that defendants' motions for sanctions, pursuant to Fed.R.Civ.P. 11, against plaintiff and plaintiff's counsel is DENIED.
FINALLY, that the Clerk of the Court is directed to enter final judgment in favor of the defendants and against the plaintiff in accordance with this Decision and Order.
Dated: August 26, 1992
Buffalo, New York
WILLIAM M. SKRETNY
United States District Judge