federal government on May 16, 1979 and had better performance
ratings than plaintiff. See Defendant's Memo, Exhibit N,
paragraph 9. Likewise, Mr. Loomis was a veteran who started
working for the federal government on April 24, 1984 and had
better performance ratings than plaintiff. See id. Finally,
Mr. Jones, while not a veteran, had more seniority and better
performance than plaintiff. See id. In contrast, plaintiff was
not a veteran, began his federal service on July 7, 1986, and
had lower performance ratings than the three individuals who
were retained to work in the Griffiss facilities.
Plaintiff also claims that he was discriminated against
because the other four employees whose positions were eliminated
— Debbie Boudreau, Diane Peters, Gary Stauty, and Steven Recchio
— were subsequently rehired by defendant. Following the RIF, Ms.
Boudreau was hired by the Defense Finance and Accounting Service
("DFAS"). See Defendant's Memo, Exhibit 0, paragraph 6. Ms.
Peters, Mr. Stauty, and Mr. Recchio also were hired by DFAS at
some time following the RIF. See Brousseau Affidavit, Exhibit
E, pp. 25-26. DFAS is a Department of Defense organization that
is separate from DAPS — it has a separate management, its own
appropriations, a separate personnel office, and a distinctly
different mission. See Defendant's Memo, Exhibit 0, paragraph
6. As such, any decision by a member of DFAS to hire a former
employee of DAPS was made independently from DAPS and was not
affected by any alleged discrimination by Mr. Peterson or any
other employee of DAPS. See Defendant's Memo, Exhibit 0,
paragraph 9. The decision to staff and operate a duplicating
facility at DFAS was made after the RIF was complete. See id.
At the time of the RIF, the duplicating requirements for DFAS
did not exist, so there were no positions that Mr. Peterson
could have offered the employees that were affected by the RIF.
After an examination of the facts of the case, the court finds
that plaintiff has failed to establish a prima facie case of
discrimination based upon the termination of his employment. Mr.
Peterson initiated the RIF procedures for a legitimate reason,
namely to increase production efficiency at the DAPS facility at
Griffiss. As a result of the RIF procedures, three positions
remained at the DAPS facility and those positions were filled in
compliance with the required retention factors. Plaintiff does
not dispute this conclusion. The remaining former employees were
hired by DFAS, a Department of Defense organization that
operated independently of DAPS. Therefore, plaintiff has failed
to demonstrate that his dismissal from the DAPS facility as a
result of the RIF was the result of disability discrimination.
III. Intentional Infliction of Emotional Distress Claim
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, 827 (2d Cir. 1999). Whether the
conduct alleged may be reasonably regarded as so extreme and
outrageous as to permit recovery is a matter for the court to
determine in the first instance. See id. A litigant can
establish a cognizable claim for intentional infliction of
emotional distress "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 v. New York Post Co.,
81 N.Y.2d 115, 122, 596 N.Y.S.2d 350, 612 N.E.2d 699 (1993)
(internal citations omitted). The requirements for satisfying a
claim for intentional infliction of emotional distress "are
rigorous, and difficult to satisfy." Id. Therefore, courts
must decline such a claim in cases where the alleged conduct was
not sufficiently outrageous. See Bender v. City of New York,
78 F.3d 787, 790 (2d Cir. 1996).
Plaintiff claims that defendant's alleged failure to reassign
plaintiff to a WG-7 position, as well as alleged statements and
actions taken by defendant's employees, are sufficient for a
successful cause of action for intentional infliction of
emotional distress. The court disagrees. In the foregoing
analysis, the court determined that plaintiff failed to
establish a prima facie case of disability discrimination.
Recognizing this, the court cannot conclude that defendant's
actions rise to the level of being "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," when they were insufficient
to support a claim of disability discrimination. Therefore,
plaintiff has failed to prove his claim for intentional
infliction of emotional distress.
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED, that defendant's motion for summary judgment is
GRANTED and the complaint is hereby DISMISSED in its
entirety. It is further
ORDERED, that the Clerk of the Court serve a copy of this
Memorandum-Decision and Order upon the parties by regular mail.
IT IS SO ORDERED.