b. Respondeat Superior
Municipal employers may be held liable under respondeat superior for
the intentional State law torts of their employees. See Kirk v. Metro.
Transp. Auth., No. 99 Civ. 3787, 2001 WL 258605, at *7 (S.D.N.Y. March
19, 2001); Chimurenga v. City of New York, 45 F. Supp.2d 337, 344
(S.D.N.Y. 1999). New York State law imposes respondeat superior liability
on employers for their employees' intentional torts if the tortfeasor was
acting within the scope of his employment. See Buck v. Zwelling,
272 A.D.2d 895, 707 N.Y.S.2d 281, 282 (N.Y.App.Div. 2000).
An employee's conduct is within the scope of his employment if the
employer could have reasonably foreseen the employee's tortious conduct.
Helbig v. City of New York, 212 A.D.2d 506, 622 N.Y.S.2d 316, 318
(N.Y.App.Div. 1995). The" "employer need not have foreseen the precise
act or the exact manner of the injury as long as the general type of
conduct may have been reasonably expected.'" Id. (quoting Riviello v.
Waldron, 47 N.Y.2d 297, 304, 418 N.Y.S.2d 300, 391 N.E.2d 1278 (N.Y.
Construing the facts and inferences in the light most favorable to
McGrath, see Wall, 18 Fed.Appx. at 42, it was foreseeable to NHCC that
Rosenblum would sexually accost her. First, approximately once a week,
Rosenblum allegedly grabbed McGrath's phone from her and threw the
contents of her desk to the floor in plain view of several NHCC
employees. (Am.Compl. ¶¶ 34-35.) Second, Rosenblum purportedly stood
in close physical proximity to McGrath in the presence of other NHCC
employees and whispered sexual remarks to her. (Am.Compl. ¶ 36.)
Third, NHCC's director of labor relations allegedly heard Rosenblum
sexually harass McGrath and warned McGrath to "watch herself."
(Am.Compl. ¶ 50.) Finally, McGrath supposedly complained to the
Medical Center's director of diversity about Rosenblum's alleged sexual
harassment. (Am.Compl. ¶ 51.)
Those allegations, when viewed in the light most favorable to McGrath,
see Wall, 18 Fed.Appx. at 42, demonstrate that NHCC was on notice that
Rosenblum: (1) physically touched McGrath; and (2) sexually harassed
her. Those facts establish that NHCC could reasonably have foreseen
Rosenblum's tortious conduct, even if it could not have foreseen the
precise manner in which Rosenblum would execute it. See Helbig, 622
N.Y.S.2d at 318.
Accordingly, Rosenblum's activities were within the scope of his
employment. See id. NHCC may therefore be held liable for that behavior
under respondeat superior. See Buck, 707 N.Y.S.2d at 282. NHCC's Motion
to Dismiss McGrath's assault and battery claims must consequently be
2. Intentional Infliction of Emotional Distress
McGrath also alleges that Rosenblum's activities gave rise to a claim
for intentional infliction of emotional distress ("IIED"). NHCC contends
that Plaintiffs may not maintain an IIED claim where the conduct giving
rise to that claim is encompassed by another tort and that dismissal of
that claim is therefore proper. McGrath's IIED claim may not be
To state IIED claims under New York law, plaintiffs must allege" "(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.'" Conboy v. AT & T Corp., 241 F.3d 242,
258 (2d Cir. 2001) (quoting Stuto v. Fleishman,
164 F.3d 820, 827 (2d Cir. 1999)). The "standard for stating a valid
[IIED] claim . . . is "rigorous, and difficult to satisfy.'" Id. (quoting
Howell v. New York Post Co., 81 N.Y.2d 115, 122, 596 N.Y.S.2d 350,
612 N.E.2d 699 (N.Y. 1993)). Essentially, "[t]he 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 a civilized society.'" id. (quoting Stuto, 164 F.3d at
New York courts do not allow IIED claims where" "the conduct complained
of falls well within the ambit of other traditional tort liability.'"
Lian v. Sedgwick James, Inc., 992 F. Supp. 644, 651 (S.D.N.Y. 1998)
(quoting Levin v. McPhee, 917 F. Supp. 230, 242 (S.D.N.Y. 1996)). IIED
claims that are duplicative of other tort claims should therefore be
dismissed. See id.
Construing the facts and inferences in the light most favorable to
McGrath, see Wall, 18 Fed.Appx. at 42, Rosenblum's allegedly harassing
conduct: (1) was extreme and outrageous, because it exceeded the bounds
of any decent behavior; (2) was executed in reckless disregard of the
substantial likelihood that it would cause McGrath severe emotional
distress; and (3) caused McGrath's severe emotional distress. See
Conboy, 241 F.3d 242, 258. No tort other than IIED sufficiently
encompasses Rosenblum's conduct for Rule 12(b)(6)'s purposes. See Lian,
992 F. Supp. at 651. Accordingly, McGrath has stated an IIED claim
NHCC may be held accountable for that IIED claim under respondeat
superior. See Kirk, 2001 WL 258605, at *7; Chimurenga, 45 F. Supp.2d at
344. First, as described earlier, Rosenblum was acting within the scope
of his employment when he engaged in his seemingly outrageous conduct.
See Buck, 707 N.Y.S.2d at 282. Second, as previously noted, NHCC could
have reasonably anticipated Rosenblum's behavior towards McGrath. See
Helbig, 622 N.Y.S.2d at 318.
Therefore, at this point, NHCC may be charged with McGrath's IIED claim
under respondeat superior, NHCC's Motion to Dismiss McGrath's IIED claim
must accordingly be denied.
F. John McGrath's Loss of Consortium Claim
NHCC lastly moves to dismiss John McGrath's loss of consortium claim on
grounds that it is derivative to McGrath's withdrawn negligence claim.
Plaintiffs concur that the loss of consortium claim is derivative, but
maintain that it may be supported by McGrath's claims for assault,
battery and IIED. Plaintiffs are correct.
Claims for loss of consortium are derivative claims. See generally
Saghezi v. Reno, No. 94 Civ. 8291, 1996 WL 524338, at *3 (S.D.N.Y. Sept.
12, 1996). Assault and battery claims may sustain derivative loss of
consortium claims. See generally Dotson v. Broehel, No. 91 Civ. 5039,
1993 WL 227600, at *5 (S.D.N.Y. June 18, 1993); Ricca v. United States,
488 F. Supp. 1317, 1326-28 (E.D.N.Y. 1980).
McGrath has pled facts sufficient to support her assault and battery
claims. Those claims are adequate to sustain John McGrath's loss of
consortium claim on this motion. See Dotson, 1993 WL 227600, at *5;
Ricca, 488 F. Supp. at 1326-28. Accordingly, NHCC's motion to dismiss
John McGrath's derivative loss of consortium claim is denied.
NHCC's Motion to Dismiss Plaintiffs' Amended Complaint is DENIED. NHCC
is directed to answer that Amended Complaint
within twenty days of receiving this Memorandum and Order.