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MCCAVITT v. SWISS REINSURANCE AMERICA CORP.

March 21, 2000

JESS D. MCCAVITT, PLAINTIFF,
V.
SWISS REINSURANCE AMERICA CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Brieant, District Judge.

MEMORANDUM & ORDER

By a separate motion filed February 14, 2000, heard and fully submitted on March 17, 2000, defendant Swiss Re moves pursuant to Rule 12(f), Fed.R.Civ.P. to strike Plaintiff's demand for punitive and emotional distress damages, attorneys' fees, costs, disbursements and interest. Plaintiff filed opposition papers on March 6, 2000.

FACTUAL BACKGROUND

The following facts are assumed true for purposes of these motions. Plaintiff Jess D. McCavitt is a resident of Fairfield, Connecticut. Defendant Swiss Re is a subsidiary of Swiss Reinsurance Inc., a Swiss corporation. Swiss Re has its principal offices in Armonk, New York. This Court has subject matter jurisdiction under 28 U.S.C. § 1332.

In 1996, Plaintiff entered the employment of Defendant, within the State of New York and became a senior vice president. At about the same time, he also began "dating" Ms. Diane Butler, Defendant's Manager of Client Services and also a senior vice president. Plaintiff did not report directly to Ms. Butler at any point during his employment with Swiss Re. Plaintiff alleges and the Court assumes for purposes of the motion that his relationship with Ms. Butler occurred entirely after working hours, and that it had no adverse impact on his work.

In June 1999, Ms. Butler informed Mary Borba, Defendant's Senior Vice President of Human Resources of her relationship with Plaintiff. Later that month, Defendant denied Plaintiff appointment to a newly created Claims Manager position. Plaintiff claims that many senior Swiss Re managers believed he should have been appointed to the position, and that he was bypassed for promotion because of his relationship with Ms. Butler. In early July 1999, Ms. Borba informed Plaintiff that he would be terminated. Defendant's Senior Vice President provided a written explanation for Plaintiff's termination. The explanation stated that Plaintiff's job "went away", but focused largely on the relationship between Plaintiff and Ms. Butler. The explanation stated that there were no available positions at the time of Plaintiff's discharge, but Plaintiff states that some were available. Plaintiff's employment was terminated August 16, 1999, and his responsibilities were transferred to other individuals. Plaintiff filed this action on November 30, 1999. For purposes of the motion, the Court assumes Plaintiff was terminated solely by reason of his off-duty relationship with a fellow officer of the employer corporation.

DISCUSSION

Motion to Dismiss

In determining whether the complaint states a claim, the Court must accept as true all material facts alleged in the complaint and draw all reasonable inferences in favor of the nonmoving party. Thomas v. City of New York, 143 F.3d 31, 36-37 (2d Cir. 1998). Dismissal is appropriate where "it appears beyond doubt that plaintiff can prove no set of facts in support of the claim which would entitle him to relief." Id.; Scotto v. Almenas, 143 F.3d 105, 109-110 (2d Cir. 1998). This case is founded solely on § 201-d of the New York Labor Law, which reads in relevant part as follows:

§ 201-d. Discrimination against the engagement in certain activities

1. Definitions. As used in this section:

2. Unless otherwise provided by law, it shall be unlawful for any employer or employment agency to refuse to hire, employ or license, or to discharge from employment or otherwise discriminate against an individual in compensation, promotion ...

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