infliction of emotional distress in state court while resolution of the administrative claim is pending.
There are other cases, however, which hold that state law claims are tolled when a charge of discrimination based upon the same set of facts is filed with the EEOC. See Brown, 834 F. Supp. at 111; Anderson, 1996 WL at p. 2. These cases note that a litigant cannot in most cases bring a claim for intentional infliction of emotional distress in federal court until a federal claim is brought, since the court would not have subject matter jurisdiction to hear it. Thus, the result of holding that the statute of limitations was not tolled would be to require a litigant to bring an intentional infliction of emotional distress case in state court and later bring a federal, discrimination related claim in federal court, thereby forcing the litigant to argue two cases under two sovereigns with an identical set of facts. This would thwart the judicial efficiency encouraged by the grant of supplemental jurisdiction contained in 28 U.S.C. § 1367 and would also undermine one of the central purposes of Title VII, which is to allow the EEOC the opportunity to investigate allegations of employment discrimination in order to facilitate dispute resolution before litigation commences.
The court finds the reasoning of the latter cases to be more persuasive and accordingly holds that the statute of limitations was tolled from the time that a claim was filed with the EEOC until the time that the EEOC gave plaintiff a right-to-sue letter. Thus, the statute of limitations had not expired for the claim of intentional infliction of emotional distress.
B. Extreme and Outrageous Conduct
In order to sustain a claim for intentional infliction of emotional distress, a litigant must establish four elements: (1) extreme and outrageous conduct on the part of defendants, (2) intent on the part of the defendant to cause, or disregard of a substantial probability of causing, severe emotional distress, (3) a causal connection between defendants' conduct and the injury suffered, and (4) severe emotional distress suffered by plaintiff. Howell v. New York Post Co., 81 N.Y.2d 115, 121, 612 N.E.2d 699, 596 N.Y.S.2d 350; Wolff v. City of New York Financial Services, 939 F. Supp. 258 (S.D.N.Y. 1996). Defendants argue that plaintiff has failed to allege conduct sufficient to satisfy the first element.
Defendants are correct in stating that in order to prevail on a claim of intentional infliction of emotional distress, the conduct 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." Wolff, 939 F. Supp. at 263. Moreover, the Second Circuit has stated approvingly that New York courts have been very strict in applying this test. Martin v. Citibank, N.A., 762 F.2d 212 (2d. Cir. 1985).
However, when reading the complaint generously and drawing all reasonable inferences in favor of the pleader, as this court is required to do when evaluating a 12(b)(6) motion to dismiss, see Sec. I supra, it is apparent that plaintiff has alleged sufficient conduct to survive a motion to dismiss.
Plaintiff alleges that he has been an able and diligent worker with a courteous demeanor who had an excellent working relationship with his supervisor until he disclosed to her that he was infected with the AIDS virus. At that point, plaintiff alleges that defendant humiliated him by screaming at him in public, made offensive comments about homosexuals and AIDS, inquired into plaintiff's sexual orientation, refused to meet with plaintiff in her office, and sprayed Lysol on telephones and desks used by plaintiff. Moreover, plaintiff alleges that all of these actions were taken without any justification other than the fact that plaintiff had contracted the AIDS virus. Such conduct, if indeed it occurred, amply satisfies the standard of extreme and outrageous conduct. See, e.g., Polley v. Federal Reserve Bank of New York, 1994 U.S. Dist. LEXIS 11813, 1994 WL 465923 (S.D.N.Y. 1994) (intentional infliction of emotional distress successfully pled where plaintiff alleged a long term pattern of race discrimination during which defendants gave her biased performance reviews, passed over her for promotions, gave her menial work, and berated her); Brown, 834 F. Supp. at 111-12 (intentional infliction of emotional distress successfully pled where plaintiff alleged that supervisor refused to accommodate her domestic schedule though other similarly situated non-black employees were accommodated, subjected her to taunts and insults about her Jamaican heritage, refused to intervene when a coworker verbally abused her in front of a client, and ultimately discharged her).
For the reasons stated above, defendants' motion to dismiss count 2 of plaintiff's amended complaint is granted, and defendants' motion to dismiss count 3 is denied.
Dated: February 26, 1997
New York, New York
Constance Baker Motley
United States District Judge