recent decision in Bender v. City of New York,13 where it expressed some uncertainty as to the stringency of the New York standard of outrageousness and the continuing vitality of Fischer's suggestion that there can be no liability for intentional infliction of emotional distress based on conduct covered by other tort doctrines. But it is important to recognize the context in which the Circuit made its comments and the quite different position in which this Court finds itself.
Critics of the diversity jurisdiction often have complained that it places federal judges in the position of a "ventriloquist's dummy to the [state] courts"
when state law is clear and otherwise requires them to attempt to predict state law by "exhaustively dissecting each piece of evidence thought to cast light on what the highest state court would ultimately decide."
This difficulty largely has been eliminated for the Second Circuit with respect to New York law by its ability to certify questions of state law to New York's highest court.
And it was in the context of considering whether New York law was sufficiently unclear to warrant such a certification that the Bender panel made its comments.
This Court, on the other hand, cannot certify the issue to the state courts. It is obliged to make its own best judgment as to the course the New York Court of Appeals would take if presented with this case, and it must do so whether state law is clear or murky. In other words, acknowledging the points noted in Bender, this Court nevertheless must do its best to resolve any uncertainties.
This Court is persuaded that the New York Court of Appeals would reach the result outlined above were this case presented to it. Although the Circuit quite correctly pointed out in Bender that a handful of New York cases have sustained intentional infliction complaints based on conduct arguably less outrageous than the bulk of the New York decisions,
two of the three cases it cited date back to the 1960's -- long before the bulk of the cases upon which this Court relies -- and all antedate the New York Court of Appeals' recent and pointed reminder that it never has sustained a claim for intentional infliction of emotional distress. And while the authority on the issue of the availability of intentional infliction claims based on conduct falling within the boundaries of traditional torts is perhaps less preponderantly in favor of the point made in Fischer, that is not dispositive here. Whatever the New York courts may do on that issue, it seems to this Court extraordinarily unlikely that they would allow liability for employment discrimination on the intentional infliction theory in the face of the Legislature's enactment of a more limited remedy.
Accordingly, this Court concludes that the courts of New York would not sustain the fifth claim for relief as legally sufficient.
The Negligent Supervision Claim
Plaintiff's sixth cause of action alleges that defendants Advance Magazine Publishers, Inc., the parent company of The New Yorker, and S.I. Newhouse, Jr. are liable to her on the theory that they were negligent in their supervision of her immediate superior, who is said to have been directly responsible for the alleged discrimination. The claim fails for two independent reasons.
First, "the right to [workers'] compensation or benefits ... shall be the exclusive remedy to an employee ... when such employee is injured ... by the negligence or wrong of another in the same employ."
In consequence, an employee may not sue his or her employer or co-employee for injury allegedly caused by negligent supervision.
Plaintiff's contention that her claim survives because the wrongful termination for which she seeks recovery is not "injury" under the statute
is unsupported by any authority and contrary to common sense. She doubtless seeks recovery for lost wages and emotional injury of exactly the same character as similar elements of recovery sought by those hurt in industrial accidents.
Second, in order to prevail on a claim of negligent supervision, the plaintiff must show that the employer knew or should have known of the propensity of the errant employee to engage in the sort of behavior that produced the alleged harm.
There are no such allegations here.
For the foregoing reasons, defendants' motion to dismiss the fifth and sixth causes of action on the ground that they fail to state a claim upon which relief may be granted is granted in all respects.
Dated: December 23, 1997
Lewis A. Kaplan
United States District Judge