maximum twelve-week leave (despite her employer's insistence that it provided this information through a variety of channels); who leaves work and remains incommunicado for an indefinite period; who fully expects her employer to maintain her benefits and position indefinitely; and who is shocked to discover that, after six months off the job without once speaking to her employer, she has been deemed to have abandoned her job. Although inattention and errors of judgment appear to have plagued both parties, we detect no subplot of discrimination.
Fourth, and finally, "at the heart of [Lacoparra's] PDA claim" are four comments allegedly made by Sottile as evidence that her termination was motivated by unlawful discrimination. (Pl. Mem. at 2.) After Lacoparra had returned from her 1993 maternity leave, Sottile allegedly told her that she "worked better before [she] left." (Lacoparra Dep. at 101.) Lacoparra also testified that Sottile told her that she "cost [Pergament] money." (Id. at 83.) In addition, upon learning that Lacoparra was taking another leave for pregnancy complications, Sottile allegedly said, "Here we go again." (Id. at 88.) Finally, one day while Lacoparra was up on a ladder, Sottile allegedly commented, "this is a nice view." (Id. at 101.)
We find that Sottile's purportedly discriminatory remarks are far too ambiguous and insubstantial to support the "heart" of a Title VII discrimination claim. Random remarks in the workplace, without a demonstrated nexus to an employee's termination, are insufficient to create a material issue of fact to defeat an employer's motion for summary judgment. See Bellom v. Neiman Marcus Group, Inc., 975 F. Supp. 527, 1997 WL 535234, at *4 (S.D.N.Y. 1997); Bern v. United Mercantile Agencies, 942 F. Supp. 217, 220 (S.D.N.Y. 1996) (citing O'Connor v. Viacom, Inc., 1996 U.S. Dist. LEXIS 5289, No. 93-2399, 1996 WL 194299, at *5 (S.D.N.Y.) (collecting cases), aff'd, 104 F.3d 356 (2d Cir. 1996)). The comments attributed to Sottile are ambiguous and temporally removed from the termination, and shed no light on whether the actual decision to discharge Lacoparra was motivated by any kind of discriminatory intent.
In sum, Lacoparra has presented no evidence of pregnancy discrimination that would transform her speculation into a triable issue of fact. Accordingly, we grant Pergament's motion for summary judgment with respect to the Title VII and PDA claims.
IV. New York State Human Rights Law
Lacoparra brings a parallel state claim of gender and pregnancy discrimination under the New York State Human Rights Law ("NYSHRL") (her Sixth Cause of Action). Although we are dismissing Lacoparra's federal claims, we exercise our discretion under 28 U.S.C. § 1367(c) to retain supplemental jurisdiction over her NYSHRL claim based on judicial economy and the close relationship between her federal and state claims. See Aquinas v. Federal Express Corp., 940 F. Supp. 73, 79 (S.D.N.Y. 1996); Sweet v. Electronic Data Sys., Inc., 1996 U.S. Dist. LEXIS 5544, No. 95-3987, 1996 WL 294471, at *3 (S.D.N.Y. Apr. 26, 1996).
The NYSHRL provides, inter alia, that it shall be an unlawful discriminatory practice for an employer to discharge or otherwise discriminate against any employee because of her gender or disability. N.Y. Exec. Law § 296(1)(a) (McKinney Supp. 1997). The elements of an employment discrimination claim are virtually identical under the NYSHRL and Title VII. Kremer v. Chemical Constr. Corp., 456 U.S. 461, 479, 72 L. Ed. 2d 262, 102 S. Ct. 1883 (1982); Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714-15 (2d Cir. 1996) (citing Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 498 N.Y.S.2d 776, 489 N.E.2d 745 (1986)).
Therefore, because our Title VII analysis dictates our determination of the pendent NYSHRL claim, we grant Pergament's motion for summary judgment with respect to the latter claim as well.
V. Americans with Disabilities Act
Lacoparra next claims that Pergament violated the Americans with Disabilities Act ("ADA") by discharging her because she suffered from a disability (her Third Cause of Action). As an initial matter, Pergament asserts that this Court does not have jurisdiction over the ADA claim because the complaint Lacoparra filed with the Equal Employment Opportunity Commission ("EEOC") failed to allege disability discrimination. Filing a timely charge with the EEOC, although not a jurisdictional prerequisite,
is a statutory condition precedent to commencing a federal court action under the ADA. See 42 U.S.C. §§ 2000e-5(e), 122117(a); Lillien v. M.A.B.S.T.O.A. (MTA), 1996 U.S. Dist. LEXIS 18419, No. 95-10009, 1996 WL 711495, at *2 (S.D.N.Y. Dec. 11, 1996); Sank v. City Univ. of New York, 1995 U.S. Dist. LEXIS 7021, No. 94-0253, 1995 WL 314696, at *3 (S.D.N.Y. May 24, 1995); See also Butts v. City of New York Dep't of Housing Preservation and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993) (Title VII).
However, a federal court may entertain a claim not alleged in an EEOC charge if it is "reasonably related" to the allegations in the EEOC charge. Butts, 990 F.2d at 1402. A claim is "reasonably related" where, inter alia, "the conduct complained of would fall within the 'scope of the EEOC investigation which can reasonably be expected to grow out of the charge of discrimination.'" Id. (quoting Smith v. American President Lines, Ltd., 571 F.2d 102, 107 n.2 (2d Cir. 1978)). The proper focus of this inquiry lies in the factual allegations of the EEOC charge. Williams v. Borough of Manhattan Community College, 1996 U.S. Dist. LEXIS 11687, No. 94-4304, 1996 WL 457322, at *8 (S.D.N.Y. Aug. 14, 1996), aff'd, 113 F.3d 1230 (2d Cir. 1997); Bridges v. Eastman Kodak Co., 822 F. Supp. 1020, 1026 (S.D.N.Y. 1993).
In the instant action, Lacoparra filed a complaint with the EEOC on July 18, 1995. (EEOC Complaint, attached as Exh. D to Def. Rule 3(g) Statement.) On the front of the EEOC complaint form, Lacoparra checked the "cause of discrimination" boxes for "sex" and "other"; next to the "other" box she typed in "pregnancy." In an attached factual statement, Lacoparra charged that she "was terminated by Pergament . . . while on disability leave for a problem pregnancy. . . . Such termination by Pergament constitutes a discriminatory act under Title VII [as amended by the Pregnancy Discrimination Act]." Pergament maintains that a disability claim is not reasonably related to the pregnancy and gender discrimination claims set forth in the EEOC charge. Pergament points out that Lacoparra specifically described her charge as a Title VII/PDA claim and typed in "pregnancy," rather than "disability," next to the "other" box. Pergament also notes that Lacoparra never intended to pursue a disability discrimination claim because she raised it in neither her EEOC complaint nor the original complaint in this action. Additionally, Pergament argues that the pregnancy/gender claims are not reasonably related to the disability claim because they are distinct legal theories. (See Def. Mem. at 20-21.) Lacoparra responds merely by asserting that "it is hard to imagine any two claims being more 'reasonably related' than" the pregnancy and pregnancy-related disability claims. (Pl. Mem. at 20.)
We find this issue to be a very close call. For present purposes, however, we will assume arguendo that the pregnancy and disability claims are reasonably related and thus that Lacoparra's ADA claim is properly before us.
We turn now to the substance of the ADA claim. The ADA prohibits covered employers from "discriminating against a qualified individual with a disability because of the disability of such individual in regard to," inter alia, discharge from employment.
42 U.S.C. § 12112(a). In order to survive an employer's motion for summary judgment, a plaintiff must establish a prima facie case of discrimination under the ADA by producing evidence sufficient to support a reasonable inference of discrimination. Johnson v. New York Medical College, 1997 U.S. Dist. LEXIS 14150, No. 95-8413, 1997 WL 580708, at *4 (Sept. 18, 1997).
In order to establish a prima facie case under the ADA, a plaintiff must show that: (1) she is "disabled" within the meaning of the ADA; (2) she is otherwise qualified to perform the essential functions of her job, with or without reasonable accommodation; and (3) she was discharged because of her disability. Christopher v. Laidlaw Transit Inc., 899 F. Supp. 1224, 1226-27 (S.D.N.Y. 1995); see also Wernick v. Federal Reserve Bank, 91 F.3d 379, 383 (2d Cir. 1996); Aquinas v. Federal Express Corp., 940 F. Supp. 73, 77 (S.D.N.Y. 1996).
Here, the record does not support the conclusion that Lacoparra was "disabled" within the meaning of the ADA. The ADA defines "disability" as either "a physical or mental impairment that substantially limits one or more of the major life activities"; "a record of such an impairment"; or "being regarded as having such an impairment." 42 U.S.C. § 12102(2)(a-c).
With respect to the first prong of the definition, courts consider (1) whether the plaintiff's condition is a physical or mental impairment; (2) whether that impairment affects a major life activity; and (3) whether the major life activity is substantially limited by the impairment. Cerrato v. Durham, 941 F. Supp. 388, 391-92 (S.D.N.Y. 1996). According to the regulations promulgated by the EEOC, a "physical or mental impairment" is a physiological disorder or condition that affects one or more body systems. 29 C.F.R. § 1630.2(h)(1) (1996). The term "major life activities" includes, but is not limited to, "functions such as caring for oneself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, and working." Id. § 1630.2(i). An individual is "substantially limited" by an impairment if she is "significantly restricted as to the condition, manner, or duration under which [she] can perform a particular major life activity as compared to the condition, manner, or duration under which the average person in the general population can perform the same major life activity." Id. § 1630.2(j)(1)(ii); see also Aquinas, 940 F. Supp. at 77 ("the ADA protects only a limited class of persons -- individuals who suffer from impairments significantly more severe than those encountered by ordinary people in everyday life").
The regulations explicitly state that "conditions, such as pregnancy, that are not the result of a physiological disorder are not impairments" and thus do not qualify as "disabilities." Id. Pt. 1630, App. § 1630.2(h) at 338-39. That is not to say, however, that physiological complications arising from pregnancy, as distinguished from the condition of pregnancy itself, can never render a woman "disabled" under the ADA. In such situations, the question is whether the complication itself (i.e., the "impairment," or physiological disorder) is substantial enough to qualify as a "disability," regardless of the fact that the woman is pregnant. See EEOC Compliance Manual, Vol. 2, EEOC Order 915.002, § 902, Definition of the Term "Disability" (issued Mar. 14, 1995) (attached as Exh. B to Pl Mem.).
That said, pregnancy-related complications usually will not qualify a woman for ADA protection. Significantly, the interpretive guidance accompanying the ADA regulations states that "temporary, non-chronic impairments of short duration, with little or no long term or permanent impact, are usually not disabilities." 29 C.F.R. Pt. 1630, App. § 1630.2(j) at 339. Based largely on this guideline, courts have concluded that "pregnancy and related medical conditions do not, absent unusual circumstances, constitute a [disability] under the ADA."
Villarreal v. J.E. Merit Constructors, Inc., 895 F. Supp. 149, 152 (S.D. Tex. 1995); Tsetseranos v. Tech Prototype, Inc., 893 F. Supp. 109, 119 (D. N.H. 1995); see also Gudenkauf v. Stauffer Communications, Inc., 922 F. Supp. 465, 474 (D. Kan. 1996) (in order to qualify for ADA protection, pregnancy must be "unusual or abnormal" and complications must be "outside the normal range"). The severity, duration, and impact of pregnancy-related medical conditions are issues to be determined on a case-by-case basis. See 29 C.F.R. Pt. 1630, App. § 1630.2(j) at 339.
In the instant case, Lacoparra has offered insufficient evidence that she was "disabled" under the ADA. The record supports Lacoparra's claim that she suffered from a history of infertility, a prior miscarriage, and spotting and cramping during the 1994 pregnancy. There is no evidence, however, that any of these conditions were chronic or resulted in long-term or permanent impact. Cf. 29 C.F.R. Pt. 1630, App. § 1630.2(j) at 339. On the contrary, her evidence suggests that, if anything, the existence and impact of the complications were temporary. Her deposition testimony and medical forms indicate that the spotting occurred in the first trimester only, (see Letter from Laurie Grant, M.D., dated July 28, 1994 ("Grant Letter"), attached as Exh. I to Krouner Aff.); that the bed rest prescribed by her doctor (as a result of cramping) was temporary, (see Lacoparra Dep. at 134, 181; Note of Peter McGovern, M.D., dated April 15, 1994, attached as Exh. H to Krouner Aff.); that her activities were limited for only the duration of her 1994 pregnancy, (See Grant Letter); and that she physically was able to return to work by January 1995, (see Lacoparra Dep. at 184-85; Continuing Disability Claim Forms, attached as Exh. I to Krouner Aff.). We find that this evidence is insufficient for purposes of summary judgment to establish that Lacoparra actually was "disabled" within the meaning of the ADA.
Nor can Lacoparra establish that she was "disabled" under the third prong of the ADA definition. Under this subjective, "perceived disability" standard, a plaintiff must show that her employer perceived her as having an impairment substantially limiting a major life activity. See 42 U.S.C. § 12102(2)(C); Sherman v. New York Life Ins. Co., 1997 U.S. Dist. LEXIS 11411, No. 96-9665, 1997 WL 452024, at *4 (S.D.N.Y. Aug. 7, 1997); see also Daley v. Koch, 892 F.2d 212, 215-16 (2d Cir. 1989) (Rehabilitation Act). That an employer deems an employee incapable of performing a particular job is insufficient; the employer must perceive the employee as generally unable to work. Sherman, 1997 WL 452024, at *4; see also Daly, 892 F.2d at 215-26. Here, Lacoparra has provided no evidence that Luckwaldt or Sottile, the Pergament managers who terminated Lacoparra, perceived her as having an impairment substantially limiting a major life activity. There is no indication that they ever were aware of the nature of Lacoparra's pregnancy-related complications or that they deemed her generally unfit to work. Consequently, Lacoparra was not "disabled" under the ADA by virtue of a "perceived" disability.
Moreover, even if Lacoparra could establish that she fits under any of the three prongs of the ADA's definition of disability, for the reasons discussed in section III of this Opinion we find that Lacoparra is utterly unable to demonstrate that she was discharged because of that disability and thus cannot establish a prima facie case of discrimination under the ADA. Cf. Tsetseranos, 893 F. Supp. at 119 ("even assuming that plaintiff's pregnancy and ovarian cyst problem constitute a disability under the ADA, . . . plaintiff has not produced sufficient evidence to establish a causal nexus between her disability and defendant's decision to terminate her").
VI. Sanctions under ERISA § 502(c)
In her Fifth Cause of Action, Lacoparra requests that this Court impose statutory sanctions on Pergament for its delay in producing documents regarding its welfare benefits plan. Both Pergament and Lacoparra seek summary judgment on this claim.
Section 104(b)(4) of the Employee Retirement Income Security Act requires that an administrator of an employee benefits plan shall, upon written request of any participant, furnish a copy of the latest updated summary plan description. 29 U.S.C. § 1024(b)(4). ERISA § 502(c) provides that an administrator who fails or refuses to comply with such a request within 30 days may, in the court's discretion, be held personally liable to the participant. 29 U.S.C. § 1132(c)(1).
The statute commits the assessment of penalties to the district court's sound discretion. Id.; Grohowski v. U.E. Systems, Inc., 917 F. Supp. 258, 261 (S.D.N.Y. 1996). In determining whether a plaintiff is entitled to a statutory award, the two primary factors courts have considered are prejudice to the participant and bad faith on the part of the administrator. See Grohowski, 917 F. Supp. at 261-62; Kascewicz v. Citibank, 837 F. Supp. 1312, 1322-23 (S.D.N.Y. 1993). Other factors include the length of the delay and the number of requests made by the plaintiff. See Pagovich v. Moskowitz, 865 F. Supp. 130, 137 (S.D.N.Y. 1994).
In the instant action, Lacoparra contends that over one year elapsed between her request for summary plan documents and Pergament's compliance. In a letter dated November 2, 1994, from Todd Krouner (Lacoparra's attorney) to Donald Jacobson (Pergament's general counsel), Krouner requested a copy of summary plan documents (and the documents themselves) pertaining to Pergament's welfare benefits plan. (See Wenger Aff., Exh. C.) The bulk of the letter addresses Pergament's alleged failure to provide Lacoparra with adequate notice of the requirements of the FMLA. Jacobson's November 15, 1994 response states that "our log indicates that all legally required notices were forwarded to your client in a timely manner." (Wenger Aff., Exh. D.) The letter does not explicitly mention or respond to the request for summary plan documents. Not until December 6, 1995 -- two months after Lacoparra commenced the instant action -- did Pergament provide the relevant documents. The December 6 cover letter states: "Although the enclosed materials were provided to Ms. Lacoparra during her course of employment, we are providing duplicate copies to you." (Wenger Aff., Exh. E.)
We find that sanctions are not warranted. To begin with, there is no evidence that Lacoparra was in any way prejudiced by Pergament's delay. Lacoparra does not contend that she was denied any benefits under the plan; she concedes that Pergament did not commit a substantive ERISA violation and has withdrawn this claim. (See Pl. Mem. at 26.) Moreover, although some courts have found that a plaintiff's need to initiate a lawsuit to determine her rights under a plan may constitute prejudice, see Pagovich, 865 F. Supp. at 138; Kascewicz, 837 F. Supp. at 1323, Lacoparra's reliance on these holdings is without merit. She commenced the instant action not because any withholding of plan documents interfered with her entitlements under the plan, but rather to seek redress for Pergament's alleged discrimination.
In addition, we find no basis on which to conclude that Pergament's failure to provide the plan documents reflected bad faith "rather than possible confusion or sloppiness." Algie v. RCA Global Communication, Inc., 891 F. Supp. 839, 870 (S.D.N.Y. 1994), aff'd, 60 F.3d 956 (2d Cir. 1995). In most cases in which § 502(c) sanctions have been awarded, the defendant failed to respond to numerous requests from the plaintiff. See, e.g., Scarso v. Briks, 909 F. Supp. 211, 215 (S.D.N.Y. 1996); Pagovich, 865 F. Supp at 138. Here, the record suggests that Lacoparra's attorney requested summary plan documents once, in his November 2, 1994 letter. This request came at the end of a letter that primarily addressed Pergament's alleged failure to provide FMLA information. At no point does Lacoparra seem to have followed up on this request. Indeed, Pergament provided the documents only after learning that Lacoparra was seeking § 502(c) sanctions in her complaint. Between the November 2 request and the filing of the complaint, it appears that Lacoparra did not pursue her request or give Pergament any indication that she still needed and desired the information. Indeed, the absence of a substantive ERISA claim in her original complaint suggests that she did not in fact need or want the summary plan documents. In light of all these considerations, we find nothing from which to infer bad faith.
Under the circumstances, any award to Lacoparra, "where the absence of either bad faith or prejudice is so palpable, would be an unjustifiable windfall." Grohowski, 917 F. Supp. at 262. Therefore, Pergament's motion for summary judgment on the ERISA § 502(c) claim is granted. Accordingly, Lacoparra's cross-motion for summary judgment on this claim is denied.
VII. Intentional Infliction of Emotional Distress
Finally, Lacoparra's Seventh Cause of Action asserts a pendent state claim for intentional infliction of emotional distress ("IIED"). This claim is spurious.
First, there is no tort cause of action in New York for abusive or wrongful discharge of an at-will employee. Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86, 90 (1983). Based on this principle, it is well-established that a plaintiff may not subvert the rule "by recasting [her] cause of action in terms of a tort of intentional infliction of emotional distress." Id.; see also Stylianou v. St. Luke's/Roosevelt Hosp. Ctr., 902 F. Supp. 54, 58 (S.D.N.Y. 1995); Tischmann v. ITT/Sheraton Corp., 882 F. Supp. 1358, 1367 (S.D.N.Y. 1995). Here, Lacoparra's vaguely pleaded and sparsely briefed IIED claim involves no factual allegations independent of those relating to her termination. See Tischmann, 882 F. Supp. at 1368 (granting summary judgment on IIED claim where claim "merely rehashed the same facts regarding [defendant's] decision to terminate [plaintiff]").
In any event, Lacoparra's allegations fall woefully short of establishing a cause of action for New York's extremely limited IIED tort. New York, which has adopted the Restatement (2d) of Torts definition of IIED, requires that the defendant's conduct 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." Martin v. Citibank, 762 F.2d 212, 220 (2d Cir. 1985) (quoting Restatement (2d) Torts § 46(1) (1965), as adopted by Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 992-93, 373 N.E.2d 1215, 1217 (1978)). An IIED claim has four elements: (1) extreme and outrageous conduct; (2) intent to cause, or disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the outrageous conduct and injury; and (4) severe emotional distress. Howell v. New York Post Co., 81 N.Y.2d 115, 596 N.Y.S.2d 350, 353, 612 N.E.2d 699, 702 (1993).
Lacoparra is unable to satisfy, even remotely, any of the tort's elements. Cf. Sigmon v. Parker Chapin Flattau & Klimpl, 901 F. Supp. 667 (S.D.N.Y. 1995) (granting motion for summary judgment on IIED claim in Title VII case where plaintiff alleged, inter alia, that she was terminated and otherwise discriminated against because of her pregnancy and gender). Accordingly, summary judgment is granted in favor of Pergament with respect to the IIED claim.
For the foregoing reasons, Pergament's motion for summary judgment is granted with respect to all claims, and Lacoparra's cross-motion for summary judgment on the ERISA § 502(c) claim accordingly is denied. The Amended Complaint is dismissed in its entirety. Pergament shall submit a proposed Judgment Order within ten days and Lacoparra shall have five days to file objections as to form.
Dated: October 10, 1997
White Plains, NY
William C. Conner
Senior United States District Judge