unable to make out a prima facie claim for retaliation because
she cannot show that she suffered an adverse employment action or
that she was retaliated against.
Ticali avers that she suffered an adverse employment action
when she was terminated on April 19th, 1996, see Pl.'s Mem.
Opp'n at 13, however, as discussed in Section II, B, supra, the
termination was retracted. Therefore, Ticali cannot rely on her
termination to satisfy an essential element of her prima facie
case. In response to Ticali's argument that the notice of
termination was given within days after the EEOC Complaint was
filed, the undisputed facts demonstrate that on June 23rd, 1995,
Ticali was requested to resign — a request that she considered.
This was long before she filed her EEOC claim on April 15th, 1996
and long before she was told she was terminated on April 19th,
Ticali considered the School's attempt to transfer her to the
pre-kindergarten class a demotion. See Ticali Jan. 1999 Decl. ¶
26. Although the parties did not brief the point, the Court now
considers whether this transfer is an adverse employment action
for the purposes of the plaintiff's Title VII claim.
To establish that an employment action is adverse under Title
VII, a plaintiff must show that the conduct complained of
materially affected the terms and conditions of employment.
Torres v. Pisano, 116 F.3d at 640. However, "Congress did not
define adverse employment action solely in terms of job
termination or reduced wages and benefits. . . ." Wanamaker v.
Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997). "But the
mere fact that an employee has been transferred or that his job
responsibilities have changed is not sufficient in itself to show
an adverse change in working conditions." Cooper v. New York
State Dep't of Human Rights, 986 F. Supp. 825, 828 (S.D.N Y
1997). In short, "[b]ecause there are no bright-line rules,
courts must pore over each case to determine whether the
challenged employment action reaches the level of `adverse.'"
Wanamaker, 108 F.3d at 466.
Here, the plaintiff contends that a transfer from teaching
first grade to teaching pre-kindergarten is a material change in
the terms of her contract. Specifically, she alleges that
teaching pre-kindergarten is "not the same" as teaching a higher
grade because she enjoyed "teaching children reading, mathematics
and other subjects that simply are not taught to Pre-K children.
. . ." Ticali Jan. 1999 Decl. ¶ 26. A preference for one position
over another, however, is not sufficient to show an adverse
change in working conditions. See Armfield v. Jacobson, 1998 WL
427560 (E.D.N.Y. 1998) (adverse action not found where plaintiff
had subjective preference for one position over the other);
Garber v. New York City Police Dep't, 1997 WL 525396, *7
(S.D.N.Y. 1997) ("Plaintiff's dissatisfaction with the transfer,
standing alone, does not support his claim of an adverse
Further, the defendants contradict Ticali's claim that the
pre-kindergarten position represented a demotion and point to the
fact that Adela Guzman, a Hispanic woman, for whom the defendants
allegedly had a preference, was transferred from teaching the
fifth grade to teach the pre-kindergarten class when Ticali
declined the position for the 1996-97 school year. Chesnavage
Supplementary Aff. ¶ 14.
It is axiomatic that students cannot succeed in subsequent
grade levels without first mastering the curriculum of the
earlier grades. Pre-kindergarten students have important, if not
sophisticated, lessons to learn. For example, if students do not
learn the alphabet they cannot begin to learn to read. Similarly,
pre-kindergarten pupils must learn to recognize numbers in order
to begin rudimentary arithmetic. In addition, there are a host of
other lessons, including cooperation and basic learning skills
that pre-kindergarten students must learn to appreciate, which
form the building blocks of their future studies. See
generally Martha I. Morgan, Adam S. Cohen, Helen Hershkoff,
Establishing Education Program Inadequacy: The Alabama Example,
28 U. Mich. J.L. Ref. 559, 576 (1995) (noting that research on
pre-kindergarten programs has found a positive effect on the
language and cognitive measures of disadvantaged children that
improves their chances of high school graduation).
Despite Ticali's disdain for the pre-kindergarten position, she
has provided no material evidence that her transfer obliged her
to perform tasks that were less appropriate for her skills than
her prior position or adverse to her in any other legally
cognizable way. See, e.g., Cooper, 986 F. Supp. at 828. The
evidence in this case drives this Court to conclude that Ticali's
transfer was a purely lateral transfer, which cannot sustain her
position that it was an "adverse employment action." See
Williams v. Bristol-Myers Squibb Co., 85 F.3d 270, 274 (7th Cir.
1996) ("Obviously a purely lateral transfer, that is, a transfer
that does not involve a demotion in form or substance, cannot
rise to the level of a materially adverse employment action. A
transfer involving no reduction in pay and no more than a minor
change in working conditions will not do either.") (collecting
cases); Crady v. Liberty Nat'l Bank & Trust Co. of Indiana,
993 F.2d 132, 136 (7th Cir. 1993) (employee's transfer to position
with similar salary and benefits was not materially adverse
change in employment); cf. Rodriguez v. Board of Ed.,
620 F.2d 362 (2d Cir. 1980) (finding adverse employment action where art
teacher was transferred from junior high school to elementary
school, obviating twenty years of teaching experience and her
doctoral degree in art education); Copeland v. Rosen, et al.,
96 CV 6308 (S.D.N.Y. March 9, 1999) (Leisure, J.) (finding
adverse employment action where teacher was transferred to
position at another school).
Because Ticali cannot show that she suffered an adverse
employment action, she cannot make out a prima facie case of
retaliation and that claim is dismissed.
V. Section 1981
The fifth count of Ticali's Complaint alleges that the
defendants interfered with her making and enforcing of contracts
in violation of 42 U.S.C. § 1981, by attempting to induce her to
terminate her 1995-96 contract, by harassing her during the
performance of that contract, and by refusing to renew her
contract for 1996-97 on the terms to which she was entitled,
based on her race. Compl. ¶ 50.
Section 1981 provides, in relevant part, "[a]ll persons within
the jurisdiction of the United States shall have the same right .
. . to make and enforce contracts, . . . and to the full and
equal benefit of all laws and proceedings for the security of
persons and property as is enjoyed by white citizens . . ."
42 U.S.C. § 1981 (emphasis added). In general, the first requirement
for maintaining a § 1981 claim is that the plaintiff be a member
of a racial minority. Mian v. Donaldson, Lufkin & Jenrette
Securities Corp., 7 F.3d 1085, 1087 (2d Cir. 1993); Pisello v.
Town of Brookhaven, 933 F. Supp. 202, 215 (E.D.N.Y. 1996). But
see Davis v. Halpern, 768 F. Supp. 968, 983 (E.D.N.Y. 1991) (§
1981 supports claim of reverse discrimination brought by white
A non-minority plaintiff may only bring a § 1981 action under
limited circumstances. Albert v. Carovano, 851 F.2d 561, 572-73
(2d Cir. 1988). The threshold showing that any non-minority
plaintiff proceeding under § 1981 must make is that she suffered
an injury due to discrimination against a protected minority
class. See Sullivan v. Little Hunting Park Inc., 396 U.S. 229,
90 S.Ct. 400, 24 L.Ed.2d 386 (1969). Accordingly, a white
plaintiff may bring a § 1981 claim if she was the direct target
of the defendant's discriminatory action, but only if that action
was motivated by animosity towards the race of a third party who
is a member of a racial minority group. See Benjamin v.
Ctr., Inc., 57 F.3d 101, 105 (1st Cir. 1995); Carovano,
851 F.2d at 572-73 (holding that non-minority plaintiffs must
identify with some particularity the nature of the Section 1981
rights being vindicated); cf. Alizadeh v. Safeway Stores, Inc.,
802 F.2d 111, 114 (5th Cir. 1986) (allowing § 1981 suit by white
female alleging that she was discharged because her husband was
Iranian); Parr v. Woodmen of the World Life Ins. Co.,
791 F.2d 888, 890 (11th Cir. 1986) (white male alleging he was not hired
because his wife was black); DeMatteis v. Eastman Kodak Co.,
511 F.2d 306 (2d Cir.), modified on other grounds, 520 F.2d 409
(1975) (white person alleging he was forced into retirement
because he had sold his house to black person); Des Vergnes v.
Seekonk Water Dist., 601 F.2d 9, 14 (1st Cir. 1979)
(non-minority real estate developer had standing where
defendant's alleged discriminatory action was motivated by
animosity towards the race of the developer's prospective tenants
and not his race); Pisello, 933 F. Supp. at 215 (non-minority
plaintiff has § 1981 standing where he is retaliated against as a
result of his failure to discriminate in the contractual
In this case, Ticali alleges that her contractual rights were
abridged because she was white. She does not make any claims that
the defendants' actions were motivated by any discriminatory
animus towards the members of any racially protected class. As
such, she does not have standing to sue under § 1981 and summary
judgment on this claim is awarded to the defendants.*fn10
VI. Intentional Infliction of Emotional Distress
Under New York law, a claim for intentional infliction of
emotional distress requires a showing of (1) extreme and
outrageous conduct; (2) intent to cause, or reckless disregard of
a substantial probability of causing, severe emotional distress;
(3) a causal connection between the conduct and the injury; and
(4) severe emotional distress. Stuto v. Fleishman, 164 F.3d 820
(2d Cir. 1999); see also Howell v. New York Post Co., Inc.,
81 N.Y.2d 115, 121, 612 N.E.2d 699, 596 N.Y.S.2d 350 (1993).
"`Liability has been found only where the conduct has been 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.'"
Howell at 122, 81 N.Y.2d 115, 596 N.Y.S.2d 350, 612 N.E.2d 699
(quoting Murphy v. American Home Products Corp., 58 N.Y.2d 293,
303, 448 N.E.2d 86, 461 N.Y.S.2d 232 (1983)); Restatement
(Second) of Torts, § 46 cmt. d (1965). Thus,
[i]t has not been enough that the defendant has acted
with an intent which is tortious or even criminal, or
that he has intended to inflict emotional distress,
or even that his conduct has been characterized by
"malice," or a degree of aggravation which would
entitle the plaintiff to punitive damages for another
Restatement (Second) of Torts § 46 cmt. d (1965). "Whether the
conduct alleged may reasonably be regarded as so extreme and
outrageous as to permit recovery is a matter for the court to
determine in the first instance." Stuto, 164 F.3d at 827.
"New York courts appear to require that plaintiffs allege
either an unrelenting campaign of day in, day out harassment or
that the harassment was accompanied by physical threats, in order
to state a cognizable claim for intentional infliction of
emotional distress." Nunez v. A-T Financial Information Inc.,
957 F. Supp. 438, 442 (S.D.N.Y. 1997); see also O'Reilly v.
Executone of Albany, Inc., 121 A.D.2d 772, 773, 503 N.Y.S.2d 185
(3d Dep't 1986); Persaud v. S. Axelrod Co.,
1996 WL 11197 (S.D.N.Y. 1996). In addition, New York courts have
made clear that the "use of religious, ethnic or racial
aspersions to denigrate a person . . . is not sufficiently
egregious conduct to sustain a claim" of intentional infliction
of emotional distress. Graham ex rel. Graham v. Guilderland
Cent. School Dist., 681 N.Y.S.2d 831, 832 (3d Dep't 1998); see
also Leibowitz v. Bank Leumi Trust Co. of N.Y., 152 A.D.2d 169,
548 N.Y.S.2d 513 (2d Dep't 1989).
Several New York courts have dismissed cases involving acts of
harassment related to employment decisions on the ground that
such conduct was not extreme and outrageous. For example, in
Murphy, 58 N.Y.2d at 293, 461 N.Y.S.2d 232, 448 N.E.2d 86, the
plaintiff alleged that he was transferred and demoted for
reporting fraud, coerced to leave by being told that he would
never be allowed to advance, discharged and ordered to leave
immediately after reporting other alleged in-house illegal
conduct, and then forcibly and publicly escorted from the
building by guards when he returned the next day to pick up his
belongings. The Court of Appeals held that this conduct fell "far
short" of the tort's "strict standard" for outrageous behavior.
Id. at 303, 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86.
Similarly, in Foley v. Mobil Chemical Co., 214 A.D.2d 1003,
1005, 626 N.Y.S.2d 906 (4th Dep't 1995), the court found that
although the discrimination and sexual harassment allegedly
committed by the defendants represented "wholly inappropriate"
behavior, it was not sufficiently outrageous to state a cause of
action for intentional infliction of emotional distress. Id.;
see also Jaffe v. National League for Nursing, 222 A.D.2d 233,
233, 635 N.Y.S.2d 9 (1st Dep't 1995) (holding that "a case of
alleged employee harassment and intimidation, leading to forced
resignation . . . [fell] far short of the rigorous standard of
outrageous conduct necessary to maintain a cause of action for
intentional infliction of emotional distress.")
In this case, Ticali has failed to allege any conduct that is
sufficiently "extreme and outrageous" to meet the stringent New
York standard enunciated in the foregoing cases. The crux of her
intentional infliction of emotional distress claim is that
Chesnavage subjected her to "pervasive verbal abuse and false
ridicule of her self-esteem." However, even taking all Ticali's
allegations as true, she only points to a handful of incidents
that occurred over a three-year period. None of those incidents
rise to such an extreme or outrageous level as to meet the
threshold requirements for the tort. Chesnavage's conduct may
have been unpleasant and unprofessional, however, this is not a
case "where severe mental pain or anguish [was] inflicted through
a deliberate and malicious campaign of harassment or
intimidation." See Nader v. General Motors Corp., 25 N.Y.2d 560,
569, 255 N.E.2d 765, 307 N.Y.S.2d 647 (1970). In sum, "my
feelings were hurt" does not state a viable claim for intentional
infliction of emotional distress. Accordingly, defendants' motion
for summary judgment on this claim is granted; plaintiff's
intentional infliction of emotional distress claim is dismissed.
VII. New York Human Rights' Law Claims
Plaintiff's claims under N.Y. Exec Law § 296 et seq. are
dismissed as well. As the Second Circuit recently observed, "[w]e
have frequently noted that claims brought under New York State's
Human Rights Law are analytically identical to claims brought
under Title VII." Torres v. Pisano, 116 F.3d 625, 629 n. 1 (2d
Cir. 1997); see also Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 714-715 and 716 n. 6 (2d Cir. 1996) (same); Ramos v.
City of New York, 1997 WL 410493, *5 (S.D.N.Y. 1997) (same);
Owens v. Waldorf-Astoria Corp., 1997 WL 251556 (S.D.N.Y. 1997)
(same). Plaintiff's inability to establish a prima facie case
under Title VII is fatal to her claims under state law.
For the foregoing reasons plaintiff's motion for summary
judgment is denied and defendants' motion for summary judgment is