III. Standard For Dismissal
Blaufarb and City defendants have (separately) moved to dismiss plaintiff's complaint for failure to state a claim on which relief may be granted, pursuant to Fed. R. Civ. P. 12(b)(6). A complaint should not be dismissed under Fed. R. Civ. P. 12(b)(6) for failure to state a claim unless it appears beyond a doubt that plaintiff can prove no set of facts in support of his or her claim which would entitle him or her to relief. Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957). When passing on a motion to dismiss, the court must accept the allegations in the complaint as true and construe them in favor of the pleader. Scheuer v. Rhodes, 416 U.S. 232, 236, 40 L. Ed. 2d 90, 94 S. Ct. 1683 (1974); Cruz v. Beto, 405 U.S. 319, 322, 31 L. Ed. 2d 263, 92 S. Ct. 1079 (1972).
Because plaintiff has failed to state claims upon which this court may grant him relief, and for the reasons set forth below, this court hereby grants Marilyn Blaufarb's motion to dismiss plaintiff's claim against her as well as City defendants' motion to dismiss plaintiff's claims against them.
IV. Plaintiff's Claim For Intentional Infliction Of Emotional Distress Against Defendant Blaufarb Is Time-Barred
Having voluntarily dropped his claim for defamation,
plaintiff has only one remaining cause of action against Blaufarb -- intentional infliction of emotional distress ("IIED"). Blaufarb has moved to dismiss this claim on the ground that it is barred by the statute of limitations.
The statute of limitations for intentional torts is one year. N.Y. Civ. Prac. L. & R., sec. 215(3). This applies to the tort of intentional infliction of emotional distress. Ornstein v. Pakistan Int'l Airlines Corp., 888 F. Supp. 28, 31 n.11 (S.D.N.Y. 1995); Williams v. Brooklyn Union Gas Co., 819 F. Supp. 214 (E.D.N.Y. 1993). This action was commenced on July 27, 1995. Blaufarb argues that this claim is time-barred because over two years passed since publication of Blaufarb's sexual harassment charges in May 1993.
Plaintiff disagrees. According to plaintiff, Blaufarb intentionally and recklessly fabricated her charges against him. After the initial publication of the charges in 1993, plaintiff alleges that Blaufarb failed to withdraw and continuously prosecuted her charges. For instance, plaintiff claims that, at a December 19, 1994 mediation hearing, Blaufarb again "refused to withdraw her charge" and requested his termination. This continuous prosecution and failure to retract her charges, according to plaintiff, constitutes a "continuing tort" sufficient to toll the statute of limitations.
Under New York law, to establish a cause of action for intentional infliction of emotional distress plaintiff must demonstrate four elements: (1) extreme and outrageous conduct on the part of defendant; (2) that defendant possesses the intent to cause, or exhibits disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between defendant's conduct and the injury suffered; and (4) that plaintiff endures severe emotional distress. Neufeld v. Neufeld, 910 F. Supp. 977, 984-85 (S.D.N.Y. 1996) (citing Howell v. New York Post Co., 81 N.Y.2d 115, 121, 612 N.E.2d 699, 596 N.Y.S.2d 350 (1993); Coliniatis v. Dimas, 848 F. Supp. 462, 470 (S.D.N.Y. 1994)).
It is hard to prevail on a claim for IIED. The conduct alleged to constitute IIED must 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 society." Herlihy v. The Metropolitan Museum of Art, 214 A.D.2d 250, 633 N.Y.S.2d 106, 114 (1st Dep't 1995) (citations omitted). Likewise, the Second Circuit has noted approvingly that New York courts have been "very strict" in applying this test. See Martin v. Citibank, N.A., 762 F.2d 212 (2d Cir. 1985).
As a preliminary matter, Blaufarb argues that plaintiff has failed to allege facts which would sustain a cause of action for IIED and this court agrees. Given the tough standards described above, this court finds that a false charge of sexual harassment, although reprehensible, "does not rise to the level of outrage required to recover under a cause of action that is limited to only the most egregious of acts." Herlihy, 633 N.Y.S.2d at 114.
In Gay v. Carlson, the Second Circuit specifically found that lodging official complaints about a person's conduct in the workplace, even if made up and malicious, "simply fails to measure up to what is required to establish this claim [for IIED]." 60 F.3d 83, 89 (2d Cir. 1995) (citations omitted). See also, Herlihy, 633 N.Y.S.2d at 114 (being falsely accused of discrimination is not IIED); Martin, 762 F.2d at 212 (racially discriminatory investigation is not IIED); Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983) (firing employee in humiliating manner is not IIED); Shea v. Cornell University, 192 A.D.2d 857, 596 N.Y.S.2d 502 (3d Dep't 1993) (sexual harassment in workplace is not IIED); Leibowitz v. Bank Leumi Trust Co., 152 A.D.2d 169, 548 N.Y.S.2d 513 (2d Dep't 1989) (use of ethnic and religious slurs to coerce employee to leave job is not IIED). Plaintiff cites no authority that counsels otherwise.
Moreover, plaintiff misunderstands and misapplies the continuing tort doctrine. It is true that continuous and coercive harassment can establish a claim for IIED. Neufeld, 910 F. Supp. 977 at 984 (citations omitted). In such situations "the statute of limitations ... runs from the last wrongful act." Id. at 982 (citing Leonhard v. United States, 633 F.2d 599, 613 (2d Cir. 1980), cert. denied, 451 U.S. 908, 68 L. Ed. 2d 295, 101 S. Ct. 1975 (1981); Thomas v. City of New York, 814 F. Supp. 1139, 1153 (E.D.N.Y. 1993); Summers v. County of Monroe, 147 A.D.2d 949, 537 N.Y.S.2d 703 (4th Dep't), appeal dismissed, 74 N.Y.2d 735, 544 N.Y.S.2d 819, 543 N.E.2d 84 (1989). Thus the statute of limitations may be tolled until a continuing harm ceases.
This doctrine, however, is not helpful to plaintiff's case. To begin with, plaintiff's complaint contains no "concrete factual allegations of a continuing course of conduct that terminated within one year" of commencement of the action. Misek-Falkoff v. Int'l Business Machines, 162 A.D.2d 211, 556 N.Y.S.2d 331, 332 (1st Dep't), appeal denied, 76 N.Y.2d 708 (1990). Instead, there is only vague allusion to Blaufarb's "failure" to withdraw her sexual harassment complaint in plaintiff's brief opposing the instant motion. This falls dreadfully short of sufficiently alleging a continuing course of IIED. See, e.g., Neufeld, 910 F. Supp. at 983 (analyzing the adequacy of plaintiff's allegations of a continuing course of IIED).
Further, as this court recently explained: "claims for IIED that allege a continuing pattern and practice of actionable behavior may invoke the continuing tort doctrine to provide an exemption from the statute of limitations where the last actionable act of the alleged course of conduct falls within the statute of limitations." Id. (emphasis added); see also Bonner v. Guccione, 916 F. Supp. 271, 274, 1996 WL 22355 (S.D.N.Y. 1996) (holding that plaintiff may assert claim for IIED where last act of uninterrupted course of actionable conduct fell within statute of limitations). Failing to withdraw a formal complaint is not "utterly intolerable in a civilized society" and, consequently, is not an "actionable act" of IIED. For this reason, it would not toll the statute of limitations under the continuing tort doctrine.
V. Plaintiff's Title VII Claims Against City Defendants Are Collaterally Estopped
In view of the prior litigation described above, City defendants have moved to dismiss plaintiff's complaint in its entirety, based on the doctrine of collateral estoppel. Collateral estoppel may be invoked where an issue of law or fact has been litigated and determined in a prior proceeding by a valid and final judgment. Wilson v. Steinhoff, 718 F.2d 550, 552 (2d Cir. 1983). This doctrine precludes a party from re-litigating issues that were actually litigated or necessarily determined in the previous suit. See Weinstein, Korn & Miller, New York Practice p. 5011.24 (1992 & 1993 Supp.). In general, issues actually litigated in a prior state court proceeding are entitled to the same collateral estoppel effect in a subsequent federal suit as they would have in a subsequent state court proceeding. Migra v. Warren City School District, 465 U.S. 75, 83, 79 L. Ed. 2d 56, 104 S. Ct. 892 (1984).
Federal courts must give the same preclusive effect to a New York court's judgment that New York courts would give to it. Id. Under New York law, collateral estoppel is applicable when: (1) there exists an identity of issue which was necessarily decided in the prior proceeding and is decisive of the present action, and (2) the party against whom the estoppel is raised had a full and fair opportunity to litigate the issue in the prior proceeding. Murphy v. Gallagher, 761 F.2d 878, 881 (2d Cir. 1985) (citations omitted).
It is undisputed that plaintiff has already challenged his demotion and dismissal in state court in an Article 78 proceeding on the grounds that it was discriminatory, arbitrary, capricious and illegal. And although plaintiff contends that collateral estoppel can not apply here because he did not sue in state court under Title VII, the law says otherwise. Collateral estoppel may apply to federal actions, including federal civil rights actions like this one, where identical issues were litigated and necessarily decided in a prior state court proceeding. See Kremer v. Chemical Constr. Corp., 456 U.S. 461, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982); Allen v. McCurry, 449 U.S. 90, 66 L. Ed. 2d 308, 101 S. Ct. 411 (1980); Lee v. City of Peoria 685 F.2d 196 (7th Cir. 1982). The cause of action in federal court need not be precisely the same, so long as the issues are. Wright v. Town of Ticonderoga, 800 F. Supp. 1072, 1074-75 (N.D.N.Y. 1992).
For instance, in Genova v. Town of Southhampton, the Second Circuit found that the plaintiff was precluded from relitigating his employment termination in a section 1983 action in federal court, since he had "already made the same argument, though not in constitutional terms" in an Article 78 proceeding in state court. 776 F.2d 1560 (2d Cir. 1985), cert. denied, 464 U.S. 941. Similarly, in Kremer, the Supreme Court found that a Title VII action was collaterally estopped by prior state court litigation originating with an Article 78 proceeding. 456 U.S. at 480. See also Feldstein v. N.Y.C. Dep't of Consumer Affairs, 804 F. Supp. 471, 471 (E.D.N.Y.) (former city employee alleging retaliatory discharge in section 1983 action precluded by adverse Article 78 decision); Davis v. U.S. Steel Supply Etc., 688 F.2d 166 (3d Cir. 1982), cert. denied, 460 U.S. 1014, 103 S. Ct. 1256, 75 L. Ed. 2d 484 (1983) (state court's affirmance of Human Relations Commission's decision precludes section 1983 action); Unger v. Consolidated Foods, 693 F.2d 703 (7th Cir. 1982) (state court's review of administrative decision bars Title VII action).
New York principles of collateral estoppel prevent plaintiffs who have had their fair day in court from relitigating the same factual issues in any later suit against the same parties. Genova, 776 F.2d at 1561. Plaintiffs may not evade these principles by dressing up claims they have litigated and lost in state court as federal civil rights actions. Thus it is necessary, in the instant case, to consider the factual issues presented by the plaintiff. As previously noted, plaintiff's Title VII claims against City defendants hinge on the following contentions: (1) that City defendants' investigation of Blaufarb's charge was discriminatory in execution because they are biased against Orthodox Jews; (2) that City defendants were discriminatory in terminating plaintiff for failing to attend sensitivity seminars "repugnant" to his religious beliefs; (3) that City defendants' investigation was "flawed and biased" because it was conducted exclusively by female investigators; and (4) that City defendants' sensitivity training is only given to men and is therefore discriminatory against men.
Whether or not plaintiff is collaterally estopped from pursuing this federal lawsuit may be determined by considering two questions. First, were these four issues (clearly decisive in this action) necessarily decided in Wolff I and Wolff II? Second, did plaintiff have a full and fair opportunity to litigate them?
Plaintiff argues that the issues of religious discrimination and sexual harassment were not litigated in state court. However, a review of Justice Freedman's decisions and the record reveals that all four issues listed above were explicitly addressed. For instance, plaintiff claimed in his affidavit that his orthodoxy and membership in the Lubavitcher community had biased City defendants against him and "colored their response to [Blaufarb's] complaint." Exh. 7, Waters Aff. In response, City defendants put in evidence concerning their past efforts to accommodate plaintiff's religious practices. Plaintiff's attorney represented, in an affirmation, that attendance at sexual harassment training seminars was "unjust punishment" and "would violate [plaintiff's] religious tenets, which require modesty on such matters." Exh. 10, Waters Aff. City defendants countered that plaintiff never raised this issue during the period before he was fired for insubordination.
Plaintiff also complained in his affidavit to the state court that his investigators were all women -- although the legal significance of this fact, without any showing of discrimination, escapes the court. Lastly, plaintiff's fourth cause of action alleged that attendance at the sensitivity training was only required of men and was thus discriminatory. City defendants replied that such training is, in fact, mandatory for all City employees. See New York City Charter sec. 812a(12); City of New York Affirmative Employee Plan for EEO 1991.
Essentially, the gravamen of plaintiff's claims in both courts is the same -- that he was fired as a result of City defendants' religious and gender-based prejudices. And when Justice Freedman found, in Wolff I, that the City defendants' harassment investigation had been conducted in a "reasonable manner," it is clear that she had disagreed with plaintiff's claim that City defendants' investigation was biased and rigged. The later decision in Wolff II, which followed additional arguments and submissions from both sides, further demonstrates that Justice Freedman fully considered plaintiff's claims but found them to be unsubstantiated:
[City defendants] have put forth sufficient evidence that [plaintiff's] termination for insubordination was justified, inasmuch as he repeatedly refused to attend the sensitivity training sessions as directed by his employer. [Plaintiff] has put forward no evidence that [City defendants] acted in bad faith.
Exh 11, Waters Aff.
Finally, plaintiff protests that he was not accorded "full and fair opportunity to litigate" because no hearing was held and he had no chance to present witnesses. However, the Court of Appeals has held that collateral estoppel may apply even when the prior state court proceeding did not include a hearing. Dental Books Co. Inc. v. Schultz, 786 F.2d 486, 489 (2d Cir. 1986). A case decided on the papers may also have preclusive effect. Genova v. Town of Southampton, 776 F.2d 1560, 1561 (2d Cir. 1985) ("New York courts look to whether a claim has been 'brought to a final conclusion,' not to whether a full evidentiary hearing has been held on the claim") (citations omitted), cert. denied, 464 U.S. 941 (1983). Plaintiff has been through an Article 78 proceeding with two stages, which included extensive submissions and oral arguments from both sides. Consequently, as a matter of law, plaintiff has already received a full and fair opportunity to litigate the issues he now brings to this court.
Because the legal and factual issues before this court have been litigated and determined in prior proceedings, plaintiff's Title VII claims against City defendants are precluded. Justice Freedman has already suffered the task of reviewing and rejecting the same claims plaintiff makes here.
VI. Defendant Blaufarb's Counterclaim Against Plaintiff And Cross-Claim Against City Defendants Are Dismissed
In her answer to the complaint in this action, Blaufarb counterclaimed against plaintiff, incorporating the allegations contained in her verified complaint currently pending before the Commission of Human Rights of the City of New York and cross-claimed against City defendants for their "tortious" conduct. Since plaintiff's complaint is dismissed in its entirety, this court exercises its discretion to dismiss Blaufarb's counterclaim and cross-claim, over which it has solely supplemental jurisdiction, pursuant to 28 U.S.C. sec. 1367(c). This section provides in relevant part: "district courts may decline to exercise supplemental jurisdiction over a claim . . . if . . . the district court has dismissed all claims over which it has original jurisdiction."
For the reasons cited above: (1) plaintiff's claim for intentional infliction of emotional distress against Marilyn Blaufarb is dismissed on the ground that it is barred by the statute of limitations, (2) plaintiff's claims arising under Title VII against City defendants are all dismissed because they are barred by the doctrine of collateral estoppel and (3) defendant Blaufarb's counterclaim against plaintiff and cross-claim against City defendants are also dismissed.
September 4, 1996
New York, New York
CONSTANCE BAKER MOTLEY