The opinion of the court was delivered by: MOTLEY
Plaintiff, a former employee of defendant Merrill Lynch, Pierce, Fenner & Smith, Inc. ("Merrill Lynch"), alleges that defendants have violated the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., and the New York Executive Law § 296. Plaintiff also claims that the defendants have committed the tort of intentional infliction of emotional distress. Defendants make this motion to dismiss count two (relating to the alleged violation of the New York Executive Law) and count three (relating to the tort of intentional infliction of emotional distress) of plaintiff's amended complaint pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure. For the reasons explored below, this motion is granted as to count two and denied as to count three.
Plaintiff was hired as a mail clerk in the offices of defendant Merrill Lynch in November of 1986. In July of 1987, he was promoted to the position of processing clerk. Plaintiff alleges that from the time of his promotion until the end of 1992, he received favorable performance evaluations and was even promoted to the position of Lead Clerk as a result of his good performance. Plaintiff also claims that he had an outstanding working relationship with his supervisor, defendant Yolanda D'Apuzzo, during this time. However, plaintiff alleges that after he told defendant D'Apuzzo in the fall of 1992 that he had contracted the AIDS virus, her attitude toward him changed dramatically. Plaintiff claims that from that time forward, she screamed at him repeatedly in front of vendors and Merrill Lynch employees, sprayed Lysol in her office and on telephones used by plaintiff, and also requested the cleaning staff to use disinfectant when cleaning plaintiff's work area, none of which she had done prior to learning of plaintiff's disability.
Plaintiff also alleges that over the course of the next several months, defendant D'Apuzzo made repeated derogatory comments about homosexuals and people infected with the AIDS virus and that she asked other Merrill Lynch employees whether or not plaintiff was a homosexual. By March of 1993, plaintiff claims that he asked defendant Anthony DiBiase, defendant D'Apuzzo's supervisor, for a transfer. Though plaintiff claims that he was then told by defendant DiBiase that he would no longer have to report to defendant D'Apuzzo, defendant D'Apuzzo nonetheless placed plaintiff on a 90 day probation on April 20, 1993. In September of 1993, plaintiff was discharged.
Plaintiff thereafter filed an administrative complaint with the New York City Commission on Human Rights ("NYCCHR"), alleging that defendants had discriminated against him on the basis of his HIV-status in violation of the ADA and § 8-107.1(a) of the Administrative Code of the City of New York. Following an investigation, the NYCCHR dismissed the administrative complaint by Determination and Order dated February 23, 1995. The agency acknowledged that plaintiff had been repeatedly reprimanded and that defendant D'Apuzzo did occasionally address him in a raised voice, but it found that this treatment was due to plaintiff's own misconduct and did not stem from any discriminatory animus. After plaintiff sent a rebuttal letter to the NYCCHR and defendant responded, a Determination and Order after Review dated June 29, 1995 confirming the earlier decision was issued. A right to sue letter was then issued by the EEOC on August 7, 1996, and on October 1, 1996, this action was filed.
I. Standard Under Rule 12(b)(6)
A complaint should not be dismissed under Rule 12(b)(6) 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, 78 S. Ct. 99, 101-02, 2 L. Ed. 2d 80 (1957). Moreover, 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, 94 S. Ct. 1683, 1686, 40 L. Ed. 2d 90 (1974); Cruz v. Beto, 405 U.S. 319, 322, 92 S. Ct. 1079, 1081, 31 L. Ed. 2d 263 (1972).
II. Count Two (§ 296 of the New York Executive Law)
Defendants argue that plaintiff is collaterally estopped from filing suit under the New York Executive Law. Defendants maintain that the NYCCHR has already conducted an investigation and determined that there is no probable cause to believe that plaintiff's charges have any merit and that this court should give preclusive effect to the agency's factfinding.
"The doctrine of collateral estoppel precludes a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party . . . whether or not the tribunals or causes of action are the same." Fletcher v. Atex, Inc., 68 F.3d 1451, 1457 (2d. Cir. 1995)(citations omitted). Moreover, with certain exceptions
, federal courts must give the same preclusive effect to state administrative proceedings that they would receive in state court. Elliott, 478 U.S. 788, 798-800, 106 S. Ct. at 3226; Kirkland v. City of Peekskill, 828 F.2d 104, 107 (2d. Cir. 1987); DeCintio v. Westchester County Medical Center, 821 F.2d 111, 117 (2d. Cir. 1987).
Under New York law, state administrative proceedings are given preclusive effect if two conditions are satisfied: (1) the issue must have been material to the first action and essential to the decision rendered therein, and (2) the first action must have genuinely provided the party against whom estoppel is asserted a full and fair opportunity to be heard. Ryan v. New York Telephone Co., 62 N.Y.2d 494, 500-01, 467 N.E.2d 487, 490-91, 478 N.Y.S.2d 823, 826-27 (1984). Moreover, "the burden rests upon the proponent of collateral estoppel to demonstrate the identicality and decisiveness of the issue, while the burden rests ...