guilty of sexual harassment and received a stiffer sentence than his white roommate, who had been found guilty of assault. The complaint conclusorily stated, "Race was a motivating factor behind the guilty verdict returned against plaintiff and the disparity in the sentence rendered in the two cases" but did not set forth facts supporting such an inference. The court of appeals, upholding the district court's dismissal, also noted that the complaint identified "a number of race-neutral factors that may have led" to the finding of guilt and the sentence. See Yusuf, 35 F.3d at 714.
NEW YORK CITY ADMINISTRATIVE CODE--PRE-FILING REQUIREMENT
Title 8 of the New York City Administrative Code (the "NYCHRL") prohibits discrimination in public accommodations. See N.Y.C. Admin. Code. title 8, § 107(4) (1993).
Before commencing a civil action in court, a plaintiff suing under the NYCHRL must "serve a copy of the complaint upon the city commission on human rights and the corporation counsel." Id. § 502(c). Courts in this district have held that satisfying § 502(c)'s filing requirement is a prerequisite to suing under the NYCHRL. See Monaco v. Lincoln Savings Bank, 92 Civ. 7942, 1995 U.S. Dist. LEXIS 1832, 1995 WL 66643 (S.D.N.Y. Feb. 17, 1995); Walsh v. Lincoln Savings Bank, 93 Civ. 1101, 1995 U.S. Dist. LEXIS 1829, 1995 WL 66639 (S.D.N.Y. Feb. 17, 1995); Paladines v. Poulos, 93 Civ. 9031, 1994 U.S. Dist. LEXIS 10170 (S.D.N.Y. July 22 1994); Dirschel v. Speck, 94 Civ. 502, 1994 U.S. Dist. LEXIS 9257, 1994 WL 330262, at *5 n.8 (S.D.N.Y. July 8, 1994) (compliance is a prerequisite but need not be alleged by plaintiff); Lightfoot v. Union Carbide Corp., 92 Civ. 6411, 1994 U.S. Dist. LEXIS 6191, 1994 WL 184670 (S.D.N.Y. May 12, 1994) (granting summary judgment for defendant on NYCHRL claim because plaintiff failed to prove compliance).
The Cheungs argue that they cannot be required to serve a copy of their complaint on the Corporation Counsel and Commission because that would force them to prosecute their claims through the city administrative process rather than in federal court. They cite section 502(a), which provides that "an aggrieved party shall have a cause of action in any court of competent jurisdiction . . . unless such person has filed a complaint with the city commission on human rights." The Cheungs misapprehend section 502(c): it requires that the plaintiff serve, not file, a copy of his complaint with the city entities. In other words, it requires that a plaintiff give the city notice, but not that he institute proceedings with the city commission. Once he serves a copy of his complaint, a plaintiff may elect to proceed, as the Cheungs have, in federal court.
Accordingly, the Cheungs' claims under the New York City Administrative Code are dismissed, with leave to replead.
TULLY'S INDIVIDUAL LIABILITY
Defendants argue that Tully cannot be individually liable because he was directed to terminate the meeting with the Cheungs and to refuse to open an account for them. It is true that the complaint does not set forth facts from which one could infer that Tully intended to discriminate against the Cheungs; indeed, he had allegedly opened (although not activated) an account for them before Sullivan intervened. Because section 1981 bars only purposeful discrimination, see General Bldg. Contractors Ass'n v. Pennsylvania, 458 U.S. 375, 391, 102 S. Ct. 3141, 3150, 73 L. Ed. 2d 835 (1982), the claims against Tully under that statute are dismissed.
By contrast, the NYSHRL provides, "It shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article . . . ." N.Y. Exec. L. § 296(6). Tully thus may be liable if he aided Sullivan or Merrill Lynch or both in violating section 296(2)(a), even if he did not intend to discriminate against the Cheungs. For example, Tully's execution of Sullivan's allegedly discriminatory instructions may be considered aiding and abetting.
Citing Patrowich v. Chemical Bank, 63 N.Y.2d 541, 483 N.Y.S.2d 659, 473 N.E.2d 11 (Ct. App. 1984), defendants also contend that Tully cannot be liable under section 296 because he does not have an ownership interest or any power to do more than carry out personnel decisions made by others. In Patrowich, the court held that a corporate officer is not an employer prohibited from discriminating by section 296(1). The Patrowich rule does not apply to claims under section 296(2)(a), which imposes liability not on employers, but on owners, agents and employees of public accommodations. It also does not limit liability for aiding and abetting under section 296(6). See McIlwain v. Korbean Int'l Investment Corp., 896 F. Supp. 1373, 1382 (S.D.N.Y. 1995) (Patrowich does not limit liability under 296(6) to owners and decisionmakers).
Plaintiffs' claims against Tully under section 1981 are dismissed, but not those under the NYSHRL (except as to citizenship).
INTENTIONAL INFLICTION OF EMOTIONAL DISTRESS
Defendants argue that the allegations in the complaint, evn if true, do not rise to the level required to state a claim for intentional infliction of emotional distress. In Murphy v. American Home Products, 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86 (Ct. App. 1983), the court endorsed the standard set forth in the Restatement (2d) of Torts § 46 comment d, which requires that the conduct be "so outrageous in character, and so 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 conduct alleged by Murphy--firing him in a humiliating manner because he disclosed accounting improprieties and doing so as a pretext for age discrimination--fell "far short" of the standard. Id.; see also Wanamaker v. Columbian Rope Co., 740 F. Supp. 127, 138 (N.D.N.Y. 1990) (complaint which alleged that plaintiff was humiliated and then fired by employer for discriminatory reasons did not state a claim for intentional infliction of emotional distress).
The allegations here do not rise higher than those in Murphy and Wanamaker. The claims for intentional infliction of emotional distress are dismissed.
Defendants' motion is granted to the extent it seeks dismissal of (1) the citizenship discrimination claims under the New York State Human Rights Law, (2) the claims under section 1981 against Mark Tully, (3) the claims under the New York City Administrative Code and (4) the claims for intentional infliction of emotional distress.
In all other respects the motion is denied.
Dated: New York, New York
January 22, 1996
LOUIS L. STANTON
U. S. D. J.