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MARIANI v. CONSOLIDATED EDISON CO. OF NEW YORK

June 3, 1997

ALFRED J. MARIANI, JR., Plaintiff, against CONSOLIDATED EDISON COMPANY OF NEW YORK, INCORPORATED, JOHN A. ARCERI and MARIA LOGIS, Defendants.


The opinion of the court was delivered by: PECK

 ANDREW J. PECK, United States Magistrate Judge:

 To the Honorable Allen G. Schwartz, United States District Judge:

 Alfred Mariani, a managerial level Con Ed employee who was shunted aside in a corporate reorganization, allegedly harassed and demeaned, and eventually fired, has sued Con Ed and two of his superiors for intentional infliction of emotional distress. Defendants have moved for summary judgment. For the reasons set forth below, the Court recommends that defendants' summary judgment motion be granted because (1) Mariani's claim is barred by the one-year statute of limitations, and (2) even if not time barred, defendants' alleged conduct is not sufficiently outrageous to meet New York's stringent requirements for a claim of intentional infliction of emotional distress in the employment setting.

 FACTS

 Introductory Remarks

 Southern District of New York Local Civil Rule 56.1 (formerly Local Rule 3(g)), provides:

 
(a) Upon any motion for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure, there shall be annexed to the notice of motion a separate, short and concise statement of the material facts as to which the moving party contends there is no genuine issue to be tried. Failure to submit such a statement may constitute grounds for denial of the motion.
 
(b) The papers opposing a motion for summary judgment shall include a separate, short and concise statement of the material facts as to which it is contended that there exists a genuine issue to be tried.
 
(c) All material facts set forth in the statement required to be served by the moving party will be deemed to be admitted unless controverted by the statement required to be served by the opposing party.
 
(d) Each statement of material fact by a movant or opponent must be followed by citation to evidence which would be admissible, set forth as required by Federal Rule of Civil Procedure 56(e). *fn1"

 Plaintiff Mariani's counter 3(g) statement, however, does not provide the Court with citations to evidentiary support. The Court is still able to rule on the motion, by assuming that there is evidentiary support for the statements in Mariani's 3(g) and in his amended complaint (hereafter, the "complaint" or "Cplt."). The Court can do so because even on those "facts," Mariani has not stated a viable claim for intentional infliction of emotional distress. The factual recitation that follows, therefore, is largely derived from Mariani's 3(g) and his complaint. *fn2"

 The Parties

 Defendant Consolidated Edison Company of New York ("Con Ed") is a corporation engaged in the business of supplying electric, gas and steam service to New York City and Westchester County. (Con Ed 3(g) PP 1-2; Cplt. P 4.) Plaintiff Alfred J. Mariani Jr. first became employed by Con Ed in 1972 in a union position. (Con Ed 3(g) P 7; Cplt. PP 10, 24.) In 1984, Mariani left Con Ed to pursue other opportunities. (Con Ed 3(g) P 8; Cplt. P 16.)

 In early 1986, Mariani returned to Con Ed in a management position. (Con Ed 3(g) P 9; Cplt. P 19; Mariani Dep. at 76.) This was not a union position, nor did Mariani have an individual employment contract with Con Ed. (Con Ed 3(g) PP 9, 10; Mariani Dep. at 77.) From 1986-89, Mariani received a number of promotions, culminating in his becoming Manager of Management Development in Con Ed's in-house management education and training division. (Mariani 3(g) P 2; *fn3" Con Ed 3(g) PP 11-12; Mariani Dep. at 121-34, 152; Cplt. PP 31-37.) Mariani received several excellent reviews regarding his performance as Manager of Management Development. (Mariani 3(g) P 5.)

 Con Ed Establishes the Learning Center and Replaces Mariani

 Con Ed decided to consolidate training functions in a state-of-the-art facility to be called the "Learning Center." (See Cplt. P 41; Logis Aff. PP 6, 7.) In early 1992, Mariani was informed by his supervisor, Joanna M. Wolf, that (i) defendant Maria Logis would be named General Manager of this division, (ii) Logis planned to replace Mariani with Dorothy Hertle, and (iii) Mariani should begin to look for another position within Con Ed. (Mariani 3(g) P 6; Cplt. P 41.)

 Mariani As a "Surplus" and "On Loan" Employee

 Mariani was placed on "surplus" status. (Mariani 3(g) P 11; Cplt. P 48.) While on "surplus" status, Mariani had no "specific or fixed assignment, job title or duties commensurate with his managerial experience and expertise, and his position as a Level Three Midpoint Manager, . . . [was] sometimes without any work to do, and always in jeopardy of being terminated." (Mariani 3(g) P 12.) Mariani was transferred from his office to a small windowless room without a telephone, and forced by Logis to teach Hertle about her new position. (Mariani 3(g) P 14.) Logis instructed Mariani to accept a position with Con Ed in Staten Island, which Mariani refused due to the lengthy commute, and she repeatedly told Mariani that unless he found another Con Ed position, he would be downgraded or terminated. (Cplt. P 49.) Mariani was unable successfully to find another position within Con Ed, due to Logis's influence or her failure to consent to transfers. (E.g., Mariani 3(g) PP 15, 19-21.)

 In January 1993, Mariani taught a course entitled "Integrated Application Management" to twenty project managers at the Indian Point Nuclear facility, with such great success that an article was written about it in the Con Ed monthly publication. (Mariani 3(g) PP 17, 18.) While the draft of the article reviewed by Mariani mentioned his name prominently, the published version contained no mention of him. (Mariani 3(g) P 18.) This caused Mariani "humiliation, embarrassment and shame." (Id.)

 In January 1994, Mariani received an "on-loan" assignment *fn4" in the Gas Marketing department under the supervision of defendant John A. Arceri. (Mariani 3(g) P 23; Cplt. P 54; Con Ed 3(g) P 13.) Mariani was given work projects that were below his level of expertise. (Mariani 3(g) P 23.) "Whenever [Mariani] would inquire of Mr. Arceri as to when he would be 'budgeted,' Mr. Arceri would respond by telling [Mariani] that he was 'a pain in the ass'; that he would call Mariani's brother Richard, who was manager of Energy Services in Bronx County, telling him to tell plaintiff to stop bothering him, otherwise he would send plaintiff for a 'job fitness evaluation', a procedure used as a form of punitive threat, which consisted of testing for drugs and alcohol abuse and psychological testing, as a prelude to disciplinary proceedings and termination if the employee compelled to undergo such testing should display any negative results of the evaluation process." (Mariani 3(g) P 23.) These threats caused Mariani serious emotional distress. (Id.) "During this period various plans for reorganization of Arceri's department were discussed, whereupon defendant Arceri would often say to plaintiff that he would be required to justify his retention in the proposed reorganized department, and to justify why he should not be terminated." (Mariani 3(g) P 24.) These statements also greatly distressed Mariani. (Id.) During this time, Mariani received a minimal raise, rather than the larger raise he felt he deserved, due to Logis' intervention. (Cplt. P 57.)

 In late 1994, Wolf, acting as Mariani's supervisor, signed a Payroll Change Authorization transferring Mariani from Logis organization, where he had not actually worked since 1992, to Arceri's organization. (Mariani 3(g) P 25.) While the transfer was to take effect on January 1, 1995, Arceri did not implement it until July 1995. (Id.) During this seven month ...


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