thus, has failed to state a claim under Fisher.
Recent decisions in both federal and state courts interpreting New York law illustrate the very high and exacting standard that must be satisfied to establish extreme and outrageous behavior. In Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983), the New York Court of Appeals upheld the dismissal of an action for intentional infliction emotional distress despite allegations by the plaintiff that he was transferred and demoted for reporting fraud at his company, told hat he could not be fired because of his age but that he would never advance, discharged and ordered to leave immediately, forcibly and publicly escorted from the building by guards when he returned the next day to pick up his belongings, and ordered out of the building two weeks later when he came back, as instructed, to pick up his possessions, which were then dumped in the street. See Murphy, 112 Misc. 2d at 508-09, 447 N.Y.S.2d at 219-20.
In affirming the dismissal, the Court of Appeals stated that the allegations fell "far short" of the standards for an intentional infliction of emotional distress claim. Murphy, 58 N.Y.2d at 303, 461 N.Y.S.2d at 236. In addition, the Court ruled that because there is no cause of action in tort in New York for abusive or wrongful discharge of an at-will employee, plaintiffs should not be allowed to circumvent that conclusion or to subvert the traditional at-will contract rule by casting their causes of action in terms of a tort of intentional infliction of emotional distress. Id.
Recent decisions from the Court of Appeals for the Second Circuit have reaffirmed the limited nature of the tort of intentional infliction of emotional distress. In Spence v. Maryland Cas. Co., 995 F.2d 1147, 1158 (2d Cir. 1993), the Court of Appeals affirmed summary judgment for the defendants despite allegations by the plaintiff of a pattern of harassment and intimidation by his supervisor lasting two years and resulting in severe stress-related health problems. The plaintiff alleged that his supervisors threatened him with termination on several occasions, mocked him because of his age, and ridiculed him as a result of his stress-related ailments. The plaintiff claimed that his supervisor "told me that he was indirectly responsible for the termination of several thousand people and . . . that he personally terminated 2-or 300 people and that when it came to terminating me, he would do that, too." Id., 995 F.2d at 1151. In addition, when the plaintiff informed the supervisor of his stress-related medical ailments and told him that the ailments were a result of the supervisor's threats, the supervisor replied "good, that's what I intended, I wanted you to get the message, that's good." Id., 995 F.2d at 1152.
While plaintiff's supervisors were demoted and disciplined by the company for their intimidatory methods, the Court nevertheless found that the "defendants' criticisms of [the plaintiff's] job performance and their conditional threats of termination . . . fall far short of the 'extreme' and 'outrageous' conduct that is actionable as an intentional infliction of emotional distress." Id., 995 F.2d at 1158. In addition, the Court reaffirmed the Murphy court's admonition against plaintiffs' evading the at-will contract rule by casting causes of action as intentional infliction of emotional distress claims. Id., 995 F.2d at 1158 (citing Murphy, 58 N.Y.2d at 303, 461 N.Y.S.2d at 236).
In Martin v. Citibank, N.A., 762 F.2d 212 (2d Cir. 1985), the Court of Appeals for the Second Circuit relied on Murphy in reversing a decision not to grant judgment notwithstanding the verdict. The plaintiff in Martin brought an action against her employer for discrimination in employment and intentional infliction of emotional distress. The action stemmed from Citibank's selection of six minority employees for polygraphing during an investigation of missing funds at the bank. The bank tested only seven employees, of which five were black, one was Hispanic, and one was white, despite a larger number of employees who could have handled the disputed funds. Despite being exonerated through the testing, the plaintiff, who was black, was upset that six out of the seven tested were minorities. Subsequently, the plaintiff requested and received a transfer to another branch. At the new branch, the plaintiff complained of harassment as a result of the polygraphing. After four weeks, the plaintiff resigned. Using Murphy as a basis, the Court found that the allegations in question did not meet the standards for an intentional infliction of emotional distress claim. Martin, 762 F.2d at 220. See also Gay v. Carlson, 60 F.3d 83, 89 (2d Cir. 1995) (affirming dismissal of claim for intentional infliction of emotional distress based on allegations defendants had made up their accounts of plaintiff's alleged misconduct to induce the plaintiff's employer to fire him; allegations did not allege conduct going "beyond all possible bounds of decency")
Likewise, the allegations in the present case fall far short of the requirements for the tort of intentional infliction of emotional distress. Even accepting as true for the purposes of this motion all of the plaintiff's allegations, the actions by plaintiff's supervisors fell far short of the extreme and outrageous behavior standard. Threats of termination do not rise to the level of extreme and outrageous behavior. See Spence, 995 F.2d at 1158; Murphy, 58 N.Y.2d at 303, 461 N.Y.S.2d at 236. Similarly, a supervisor's comments with regard to the number of people that individual has fired fall far short of the standard. Spence, 995 F.2d at 1158. The course of conduct here was insufficient to satisfy the exacting standards required in other cases.
Because the plaintiff's allegations do not satisfy the standard required for a claim for intentional infliction of emotional distress, the defendant's motion for summary judgment dismissing her claim for intentional infliction of emotional distress is granted.
The defendant's motion for summary judgment on plaintiff's claim for punitive damages resulting from her intentional infliction of emotional distress claim must similarly be granted. Dismissal of plaintiff's claim for intentional infliction of emotional distress requires that her claim for punitive damages be dismissed as well because punitive damages may not be sought as a separate cause of action. See, e.g., Weir Metro Ambu-Service, Inc. v. Turner, 57 N.Y.2d 911, 456 N.Y.S.2d 757, 442 N.E.2d 1268 (1982).
For all of the foregoing reasons, the defendant's motion for partial summary judgment dismissing the claims for intentional infliction of emotional distress and for punitive damages is granted.
Dated: New York, New York
October 17, 1995
John G. Koeltl
United States District Judge
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