failing to suggest, explicitly or implicitly, any other form of conduct violative of Title VII. In short, Cruz's EEOC charge failed in its important public policy purpose of giving defendants sufficient notice of her intention to raise allegations pertaining to discrimination in areas other than a discriminatory discharge, thereby depriving defendants and the agency itself of the opportunity of reconciliation. See, e.g., Gilliard at 1079 ("Gilliard's EEOC charge was limited to a claim of discriminatory discharge. Because the EEOC charge did not give the Library sufficient notice of Gillard's intention to raise allegations pertaining to discrimination in wages, benefits and training, Gillard's Title VII claim as to these allegations must be dismissed.").
It follows that, insofar as plaintiff at bar relies upon Title VII to establish this Court's subject matter jurisdiction, her claims of discrimination in hiring and sexual harassment cannot be considered.
But that does not end the matter, at least with respect to her claim for discrimination in hiring. As noted, the complaint, while hardly a model of pleading, appears to invoke 42 U.S.C. § 1981 as an alternative source of subject matter jurisdiction. No comparable agency filing requirements exist with respect to a § 1981 claim.
Defendants argue in their brief at n.2 that a 1981 does not assist Cruz "since allegations of sex-based discrimination are not actionable under the Civil Rights Act of 1866," codified in part at 42 U.S.C. § 1981. That is true; but Cruz's second cause of action alleges racial discrimination, after incorporating by reference all the allegations of the complaint, including those relating to her hiring by Ecolab. Unaccountably, counsel for plaintiff does not argue for a 1981 jurisdiction in the brief opposing defendants' motion. But I am bound to examine the Court's subject matter jurisdiction sua sponte; and it is clear that the allegations of the complaint are sufficient to state a claim that defendants discriminated against Cruz on the basis of her Hispanic origin during the hiring process. See Saint Francis College v. Al-Khazraji, 481 U.S. 604, 95 L. Ed. 2d 582, 107 S. Ct. 2022 (1987) (a person of Arabian ancestry may be protected from racial discrimination under § 1981). To the extent that Cruz's complaint alleges that she was denied the position of exterminator and offered instead a clerical job because of her race, she states a claim under § 1981. That claim will not be dismissed for lack of subject matter jurisdiction.
Defendants are correct in their contention that sex discrimination claims, whether at the time of hiring or for sexual harassment during the course of employment, are not cognizable under § 1981. See Runyon v. McCrary, 427 U.S. 160, 167, 49 L. Ed. 2d 415, 96 S. Ct. 2586 (1976); Bobo v. ITT, Continental Baking Co., 662 F.2d 340, 342 (5th Cir. 1981), cert. denied, 456 U.S. 933, 72 L. Ed. 2d 451, 102 S. Ct. 1985 (1982); Grant v. Morgan Guarantee Trust Co. of New York, 548 F. Supp. 1189, 1192 n.5 (S.D.N.Y. 1982).
It follows that the following discrimination claims remain for further litigation: plaintiff's claims of discriminatory discharge based upon sex and national origin, under Title VII; and plaintiff's claim for racial discrimination at the time of her hiring, under § 1981. Plaintiff's claim for sexual harassment during the course of her employment falls outside this Court's subject matter jurisdiction, and will be dismissed.
Claim for Intentional Infliction of Emotional Distress
Count three of the complaint is captioned "Intentional Infliction of Emotional Distress." The count consists of two paragraphs only. P 41 incorporates by reference the factual allegations contained in PP 1 through 36. P 42 alleges only that the actions of Ecolab, Mosh and Marcantonio "constitute racial discrimination." Presumably plaintiff intends to plead that defendants' racial discrimination caused her emotional distress.
This claim arises under New York law. Plaintiff asserts it in this Court under principles of pendent jurisdiction. Under New York law, a plaintiff claiming the intentional infliction of severe emotional distress must allege and prove on the part of a defendant "extreme and outrageous conduct" which "intentionally or recklessly causes severe emotional distress to another." Liability may be found "only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all reasonable bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Fischer v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 992-93, 373 N.E.2d 1215 (1978) (citing and quoting Restatement, Torts 2d at § 46). Allegations of conduct failing to rise (or sink) to such an extreme fail to state a cause of action.
I agree with defendants at bar that the conduct charged "does not give rise to liability under this doctrine by any proper definition." Fischer at 43 N.Y.2d 557, 402 N.Y.S.2d at 993.
In particular, the New York Court of Appeals has made it plain that the New York doctrine of employment at will may not be avoided by alleging the tort of intentional infliction of emotional distress arising out of even an "abusive or wrongful discharge of an at-will-employee." 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). See also Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985) ("Thus, despite the unacceptability of racial discrimination in civilized society, we have seen no indication that New York courts would consider the conduct here 'outrageous' per se or would otherwise conclude that it sufficed to prove Citibank's liability for intentionally inflicting emotional distress.") (footnote omitted).
Defendant's motion to dismiss plaintiff's claim for the intentional infliction of emotional distress will be granted.
Service of Process Upon the Individual Defendants
Plaintiff claims to have effected service of the summons and complaint upon Mosh and Marcantonio in accordance with New York law, made applicable to proceedings in federal district courts by Rule 4(c)(2)(C)(i). But plaintiff has not complied with New York law in respect of service upon these individual defendants.
As noted, plaintiff attempted service on Mosh and Marcantonio by leaving copies of the summons and complaint with Filby, the Ecolab employee who, according to plaintiff's counsel and server of process, stated that he was in the habit of and authorized to accept documents intended for Mosh and Marcantonio. So far as the record appears, those were the only steps taken on behalf of plaintiff to effect service on these defendants. While Filby disputes the factual account given by attorney Liebesman, I need not resolve the conflict because this service is insufficient in any event.
N.Y.C.P.L.R. provides in § 308 in pertinent part:
Personal service upon a natural person shall be made by any of the following methods:
1. by delivering the summons within the state to the person to be served; or