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CHRZANOWSKI v. LICHTMAN

December 14, 1994

STEPHEN A. CHRZANOWSKI, DeANNA DOMINIAK, ELIZABETH ZOLTE HONIG, NANCY E. RIESTER AND SHANNON C. RIESTER, Plaintiff,
v.
GARY LICHTMAN AND GARY PONTIAC, INC., Defendant.



The opinion of the court was delivered by: CAROL E. HECKMAN

REPORT AND RECOMMENDATION

 This matter was referred to the undersigned by the Hon. Richard J. Arcara, to hear and report, in accordance with 28 U.S.C. § 636(b). Presently before the court is defendants' motion under Rule 12(b)(6) to dismiss four claims asserted in the complaint for failure to state a claim. In the alternative, defendants' request that this court treat their motion as one for summary judgment pursuant to Rule 56.

 For the reasons set forth below, defendants' motion to dismiss should be granted as to all four claims.

 BACKGROUND

 In order to make a determination on defendants' motion to dismiss under Rule 12(b)(6), this court must accept as true the facts alleged by the non-moving party. Accordingly, the following summary of facts is adopted from plaintiffs' complaint.

 The plaintiffs, all former employees of the defendants', filed their complaint against Gary Lichtman ("Lichtman") and Gary's Pontiac, Inc. ("Gary's Pontiac") alleging that defendants, through Lichtman, engaged in a pattern and practice of sexually harassing female employees. This practice included sexually touching female employees, making sexually suggestive remarks to female employees, and requesting or demanding sexual favors from female employees.

 In addition, plaintiffs' claim that Lichtman invited female employees to use a bathroom adjacent to his office where he had installed a television camera which permitted him to view those employees in the restroom. Plaintiff Stephen Chrzanowski was informed by a female employee about the hidden camera. Plaintiff Chrzanowski states that, shortly after he was told about the camera, he walked through defendant Lichtman's office, which he asserts was open and unlocked, to the restroom to investigate. He discovered the video camera. Plaintiff observed that the camera was pointed toward the toilet and that it was hooked up to a monitor on Lichtman's desk. He reported his discovery to Evelyn Shank, Gary Pontiac's office manager, and Max Ruben, the finance manager, and asked them to help him remedy the situation. Shortly thereafter, defendant Lichtman terminated Chrzanowski's employment in retaliation for that report.

 The plaintiffs have pleaded claims for sexual harassment under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, et. seq., the Civil Rights Act of 1991, 42 U.S.C. § 1981a, the New York Human Rights Law, the New York Executive Law § 290 et. seq., and the New York Civil Rights Law § 40(c).

 Defendants move to dismiss the following claims:

 
1. Plaintiff Chrzanowski's claim for defamation,
 
2. Plaintiffs' claims for negligent employment, and negligent infliction of emotional distress, and
 
3. Plaintiff Dominiak's claim for overtime wages under the Fair Labor Standards Act.

 For the reasons set forth below, it is recommended that defendants' motion to dismiss these claims be granted.

 DISCUSSION

 In determining a motion to dismiss under Rule 12(b)(6), the court must presume all factual allegations of the complaint to be true and make all reasonable inferences in favor of the non-moving party. 2A MOORE's FEDERAL PRACTICE P 12.07[2.-5], p. 12-63 (2d ed. 1992); Miree v. DeKalb County, GA., 433 U.S. 25, 27 n.2, 53 L. Ed. 2d 557, 97 S. Ct. 2490 (1977). However, legal conclusions, deductions or opinions couched as factual allegations are not given a presumption of truthfulness. 2A Moore's, supra, at pp. 12-63 through 12-64; Albany Welfare Rights Organization Day Care Center, Inc. v. Schreck, 463 F.2d 620 (2d Cir. 1972), cert. denied, 410 U.S. 944, 35 L. Ed. 2d 611, 93 S. Ct. 1393 (1973). The complaint should not be dismissed for failure to state a claim unless it appears "beyond doubt that the plaintiff can prove no set of facts in support of his claims which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)(quoted in Cortec Industries, Inc. v. Sum Holding, L.P., 949 F.2d 42, 47 (2d Cir. 1991), cert. denied sub nom. Cortec Ind., Inc. v. Westinghouse Credit Corp., 118 L. Ed. 2d 208, U.S. , 112 S. Ct. 1561 (1992)).

 I. Plaintiff Chrzanowski's Claim for Defamation

 Plaintiff Stephen Chrzanowski has asserted a claim for defamation on the theory of "compelled self-publication". Plaintiff asserts that at the time he was fired, defendant Lichtman did not offer a reason for his termination. However, at an unemployment hearing held on January 24, 1994 concerning Shannon Rester, Lichtman surmised that Chrzanowski hooked up the camera:

 
If the camera became hooked up, . . . it is in my private office a private bathroom that's always locked . . . [Chrzanowski] . . . had to break in. . . . If that camera was hooked up, [Chrzanowski] hooked up the camera, because the camera had never been hooked up before (Item 1 at P 66).

 Chrzanowski argues that when he applies for other employment, he must tell prospective employers that his former employer accused him of breaking into his private office and hooking up a video camera in his private restroom. Plaintiff ...


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