Ms. Fernandez Claims
Ms. Fernandez has alleged that Mr. Hernandez made sexual comments to her in 1993, made two advances which she refused, and thereafter became critical of her work and criticized her to Mr. Nunez. (Am Cpt PP 27-30) Although these allegations, if credited by a trier of fact, could amount to continuous pattern of harassment and retaliation by Mr. Hernandez, plaintiffs assert no facts from which one reasonably could find that Mr. Hernandez' 1993 conduct was chargeable to PRHAS. First, Mr. Hernandez did not have supervisory responsibility over Ms. Fernandez, unlike over Ms. Rivera. The rationale for attributing knowledge to PRHAS therefore is undermined. Cf. Hirschfeld v. New Mexico Corrections Dept., 916 F.2d 572, 579 (10th Cir. 1990) (defendant's position as captain is not a basis for attributing liability to employer where the defendant lacked supervisory authority over plaintiff and never exercised his authority to facilitate harassment) cited in Karibian, 14 F.3d at 780. Second, she concedes in the amended complaint that she said "nothing to anyone" about the comments or advances by Mr. Hernandez in 1993. (Cpt P 28) Although she alleges that Mr. Hernandez criticized her to Mr. Nunez, she does not allege, and the allegations do not suggest, that Mr. Nunez knew why Mr. Hernandez was so critical. Third, plaintiffs' allegations do not indicate that the comments and advances of Mr. Hernandez in 1993 were open and notorious. Accordingly, the alleged misconduct of Mr. Hernandez in 1993 toward Ms. Fernandez is untimely under Title VII and not capable of resuscitation by the continuing violation doctrine.
Assault and Battery Claims
Defendants move also to dismiss the assault and battery claims, arguing that plaintiffs have failed to allege facts that could support those theories and, in any event, that the claims are barred by the one year statute of limitations.
The amended complaint, which was filed on December 15, 1995
added assault and battery as theories of recovery. (Am Cpt PP 43-44) The factual assertions underlying the assault and battery claims, however, were alleged in the original complaint, filed on October 5, 1995, and repeated in the amended complaint. In Ms. Rivera's case, the complaints alleged that in March of 1995, Mr. Hernandez on the last night of a conference "asked her dance and in the course of the dance held her improperly close." When she pulled away, he "threatened" that "she would have to suffer the consequences" if she did not come to work the next day. (Cpt P 17; Am Cpt P 17) As for Ms. Fernandez, the complaints alleged that on November 10, 1994, Mr. Nunez "put his arms around her and made clear that he sought sexual favors her"; when she reminded him that she did not want to be involved with office colleagues or superiors, he became "angry with her." (Cpt P 30; Am Cpt P 31)
Defendants claim that assault and battery theories require allegations of a "grievous affront" and an "intent to injure" not contained in plaintiffs' complaints. This argument mischaracterizes the law and ignores the thrust of the plaintiffs' factual allegations. As the Second Circuit comprehensively has explained, under New York law, an assault is "an intentional placing of another person in fear of imminent harmful or offensive contact." A battery is "an intentional wrongful physical contact with another person without consent." United National Insurance Co. v. Waterfront New York Realty Corp., 994 F.2d 105, 108 (2d Cir. 1993). The terms assault and battery do not in any way depend "on the degree of violence" because the law "totally prohibits the first and lowest stage, since every individual's person is sacred and no other has the right to touch it." Id. (internal quotation omitted).
Contrary to defendants' suggestion, New York law does not make intent to cause physical injury an element of the torts of assault and battery. Zgraggen v. Wilsey, 200 A.D.2d 818, 819, 606 N.Y.S.2d 444, 445 (3d Dept. 1994); Villanueva v. Comparetto, 180 A.D.2d 627, 628, 580 N.Y.S.2d 30, 32 (2d Dept. 1992); Trott v. Merit Dept. Store, 106 A.D.2d 158, 160, 484 N.Y.S.2d 827, 829 (1st Dept. 1985); 6 N.Y. JUR. 2D, Assault § 4 at 198 (1980) (collecting cases) (hereinafter "6 N.Y. JUR. 2D, Assault § 4"). Rather, the intent requisite to an assault under New York law is the intent either to inflict personal injury or to arouse apprehension of harmful or offensive bodily contact. See, e.g, Trott, 106 A.D.2d at 160, 484 N.Y.S.2d at 829; 6 N.Y. JUR. 2D, Assault § 4 at 197, n. 24 (and cases cited therein). To prove battery, the required intent is merely that the defendant intentionally made bodily contact and that the intended contact was itself offensive or without consent. See, e.g., Zgraggen, 200 A.D.2d at 819, 606 N.Y.S.2d at 445; Villanueva, 180 A.D.2d at 628, 580 N.Y.S.2d at 32; accord, 6 N.Y. JUR. 2D, Assault § 4 at 198 n. 25.
Here, the facts alleged in the amended complaint, the same as those in the original complaint, state claims for battery as defined under New York law. Each plaintiff clearly alleged that the individual defendants deliberately touched them and that the intended physical contact was offensive and unwelcome, thereby stating a claim for battery. Cf O'Reilly v. Executone of Albany, Inc., 121 A.D.2d 772, 503 N.Y.S.2d 185 (3d Dept. 1986) (former employee's complaint alleging sexual harassment, including touching in a sexual manner, was sufficient to state cause of action for battery).
Whether the allegations state a claim for assault is a closer question. There is no express allegation that either plaintiff was placed in apprehension of harmful or offensive bodily contact or of personal injury. However, Ms. Rivera alleges that she pulled away from Mr. Hernandez and was threatened with retaliation, while Ms. Fernandez alleges that she met with Mr. Nunez' anger after rejecting his embrace and advances. These circumstances conceivably could give rise to the apprehension necessary to an assault. Accordingly, the motion to dismiss for failure to state claim for assault is denied. See Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957) (dismissal for failure to state a claim appropriate only if plaintiffs can prove no set of facts which would entitle them to relief).
The next question is whether the assault and battery actions survive the one year statute of limitations imposed by N.Y. CPLR § 215(3). In Ms. Rivera's case, the alleged assault and battery occurred in March 1995 -- less than a year prior to the date that the amended complaint was filed -- and obviously is not time barred. For Ms. Fernandez, the incident underlying the assault and battery charge allegedly occurred on November 10, 1994, more than a year before the filing date of the amended complaint, but less than a year before the date on which the original complaint was filed. It is significant, however, that the factual allegations underlying Ms. Fernandez' assault and battery claim (like those underlying Ms. Rivera's claim) were set forth in the original complaint. It is well settled under Fed. R. Civ. P. 15(c) that an amended complaint asserting claims arising out of the same facts as those alleged in the original complaint relates back to the date of the original pleading even if the amendment seeks to add a new claim for relief and otherwise would be barred by a statute of limitations. Tiller v. Atlantic Coast Line R.R. Co., 323 U.S. 574, 575, 89 L. Ed. 465, 65 S. Ct. 421 (1945); see also Villante v. Dept. of Corrections of the City of New York 786 F.2d 516, 520 (2d Cir. 1986) (wrongful confinement claim relates back to original complaint alleging violation of Section 1983); McDonald v. Thomas, 1991 U.S. Dist. LEXIS 4433, No. 89 Civ. 1959 (PKL), 1991 WL 60412 (S.D.N.Y. Apr. 8, 1991) (assault and battery claim, because it it arises out of the same nexus of facts as Section 1983 claims, relates back to date of initial pleading); Brener v. Becker Paribas, Inc., 628 F. Supp. 442, 453 (S.D.N.Y. 1985) (claims under Section 12(2) of Securities Act of 1933 which arose out of the same facts alleged in original complaint relate back to the date of original complaint). Accordingly, the assault and battery claims on behalf of Ms. Fernandez is timely because the amended complaint relates back to the date of filing the initial complaint, bringing these claims within the one year limitations period.
For the foregoing reasons, the defendants' motion to dismiss is granted only insofar as plaintiffs allege that Mr. Hernandez made sexual comments and advances to Ms. Fernandez in 1993 in violation of Title VII and otherwise is denied in all respects.
Dated: June 24, 1996
Lewis A. Kaplan
United States District Judge