occurred, and (3) there exists a causal link between the protected activity and the adverse employment decision. See Howard v. Navistar Int'l Transp. Corp., 904 F. Supp. 922, 930 (E.D. Wis. 1995), aff'd, 107 F.3d 13 (7th Cir. 1997). Even construed in the light most favorable to plaintiff, his claim fails to meet the three part test for retaliation under the ADA.
As the evidence was presented at trial, plaintiff lost his position as branch manager on April 15, 1994. Subsequently, plaintiff received two memos. The first, dated April 28, 1994, advised him that his salary would be reduced by $ 250 a month. The second, dated May 1, 1994, advised him that he would no longer receive advances against his commissions. Sometime after April 15, plaintiff retained an attorney, Edward Boyle. On April 26, 1994, Mr. Boyle advised defendants that he had been retained and, two days later, met with defendants and their counsel to discuss plaintiff's employment situation. While references were made to the plaintiff's "constructive termination" in both the letter and the discussion, no mention was made of plaintiff's status as a recovering alcoholic, nor his putative protection under the ADA. The first reference to the ADA or plaintiff's alcoholism occurs in the May 3, 1994 letter sent to defendants. Plaintiff voluntarily resigned shortly thereafter.
Upon reviewing the evidence in the light most favorable to the plaintiff, it is clear that no reasonable juror could find that these adverse employment actions (i.e., plaintiff's demotion, cut in salary, and elimination of his draw) were retaliation for pursuing the rights available to him under the ADA (assuming arguendo plaintiff is disabled and has any rights under the ADA). The adverse actions antedate any reference by plaintiff or his attorney to plaintiff's rights under the ADA. Accordingly, plaintiff's retaliation claim must be dismissed.
IV. NYSHRL Claim
"The definition of a disability under the NYSHRL does not vary significantly from the ADA definition." Schwartz v. Comex, 1997 U.S. Dist. LEXIS 4658, No. 96-3386, 1997 WL 187353, at *4 (S.D.N.Y. April 15, 1997). The NYSHRL, however, imposes a requirement of complete impairment in contrast to the ADA's more lenient requirement of substantial impairment. The NYSHRL also requires that a major bodily function be impaired, rather than a major life activity, as under the ADA. See N.Y. Exec. Law § 292(21). Plaintiff presented no evidence tending to show that he suffered from the complete impairment of any bodily function, a record of such, or a perception of such by his employer. Accordingly, plaintiff's NYSHRL claim must be dismissed. See Schwartz, 1997 WL 187353, at *4 (where plaintiff's mental illness failed to qualify as disability under ADA, it would not qualify under stricter standard of NYSHRL.).
V. Intentional Infliction of Emotional Distress
In order to sustain a claim for intentional infliction of emotional distress, plaintiff must prove that defendants engaged in conduct that goes beyond "all possible bounds of decency" with either the intention to cause severe emotional distress or knowledge that the conduct would result in severe emotional distress, and that the conduct in fact caused plaintiff to experience severe emotional distress. Gay v. Carlson, 60 F.3d 83, 89 (2d Cir. 1995). The alleged impermissible 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 civilized society." Tarr v. Credit Suisse Asset Management, Inc., 958 F. Supp. 785, 805 (E.D.N.Y. 1997). Plaintiff's constructive termination as a result of refusing to participate in an alleged bribery scheme does not, as a matter of law, rise to the level of "outrageous conduct." In light of the fact that New York does not recognize a cause of action for abusive discharge, this Court will not allow plaintiff to circumvent that well settled rule by recasting his abusive discharge claim as one for intentional infliction of emotional distress. See Murphy, 461 N.Y.S.2d at 236; Tramontozzi v. St. Francis College, 232 A.D.2d 629, 649 N.Y.S.2d 43, 44 (2d Dep't 1996).
In any event, plaintiff fails to present evidence that defendants intentionally terminated him with the intent of causing him severe emotional distress, a necessary element of the cause of action. No reasonable juror could conclude from the evidence presented that defendants intended to cause plaintiff to suffer severe distress or knew that such would result. Consequently, plaintiff's claim of intentional infliction of emotional distress must be dismissed.
VI. Punitive Damages Claim
There is no separate cause of action for punitive damages under New York law. See Weir Metro Ambu-Service, Inc. v. Turner, 57 N.Y.2d 911, 456 N.Y.S.2d 757, 757, 442 N.E.2d 1268 (N.Y. 1982). Punitive damages may be awarded only as a component of damages under some other cause of action. Because no liability exists under any cause of action, punitive damages cannot be awarded.
For the foregoing reasons, defendants' motion for judgment as a matter of law pursuant to Rule 50(a) of the Federal Rules of Civil Procedure is granted. Defendants' post-judgment request for attorneys' fees and sanctions are denied.
LEONARD D. WEXLER
UNITED STATES DISTRICT JUDGE
Dated: December 12, 1997
Hauppauge, New York
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