(1979)). "However, an
employer is not liable for torts committed by the employee for personal
motives unrelated to the furtherance of the employer's business." Id.;
Heindel v. Bowery Sav. Bank, 525 N.Y.S.2d 428 (3d Dep't 1988).
Furthermore, plaintiff must show "`that the employer knew or should have
known of the employee's propensity for the conduct which caused the
injury.'" Daniels v. Loizzo, 174 F.R.D. 295, 299 (S.D.N.Y. 1997)
(quoting Kenneth R. v. Roman Catholic Diocese, 229 A.2d 159, 161 (2d
Prior to Williams's March 1997 threats, Greene was never threatened by
Williams and had no other personal knowledge of his dangerous
propensities. Likewise, Columbia had no prior knowledge of dangers posed
by Williams and promptly terminated his employment. Threats occurring
after Williams's termination are clearly outside the scope of employment
and thus do not implicate Columbia. Williams's threats against Greene
related to his pending hearing for his sexual harassment of another
employee. In March 1997, Williams allegedly threatened to kill Greene if
Greene testified against him at the hearing. Two days later, Williams was
terminated by Columbia, on grounds related to the sexual harassment
charges. In view of the evidence as a whole, Greene's allegations are
insufficient to raise a factual issue as to Columbia's knowledge of
Williams's dangerous propensities and its liability for negligent hiring
Columbia defendants correctly argue that Greene's proper remedy for the
negligent hiring and retention claim would be through the Worker's
Compensation Law. See McKinney's New York Worker's Compensation Law,
§ 29(6). In Mann v. Mass. Correa Elec., J.V., 2002 WL 88915, at *8
(Jan. 23, 2002), the Court noted that the plaintiffs common law
negligence claims were precluded by the Workers' Compensation Law's
exclusive remedy provisions. See also Salvatore v. KLM Royal Dutch
Airlines, No. 98-2450, 1999 WL 796172, at *6 (S.D.N.Y. Sept. 30, 1999)
(if recovery is available under the Workers' Compensation Law, then that
is the exclusive remedy, unless employer committed an intentional tort).
In order for Greene to claim an exception to this exclusive remedy and
have a negligent hiring claim against Columbia, he would need to show
that Columbia intentionally directed Williams to assault him. See Torres
v. New York University, No. 95-4106, 1996 WL 393565 (S.D.N.Y. July 15,
1996). The evidence does not indicate intentionality by Columbia and,
therefore, Greene's negligence claim fails.
3. Intentional Infliction of Emotional Distress
The statute of limitations for intentional infliction of emotional
distress is one year. See N.Y. Civ. Prac. L. & R. § 215; Mariani
v. Consol. Edison Co. of New York, 982 F. Supp. 267, 273-274 (S.D.N.Y.
1997), aff'd 172 F.3d 38 (2d Cir. 1999). This cause of action is
therefore time-barred because all alleged conduct took place prior to
June 30, 1998. Even if it were timely, Greene's claim fails to meet the
standard of "extreme and outrageous conduct" required by the law.
Wahlstrom v. Metro-North Commuter R.R. Co., 89 F. Supp.2d 506, 529
(S.D.N.Y. 2000) (quoting Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir.
1999)). Under New York law, "there will be no liability unless `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.'" Id.
(citations omitted). Admittedly, the conduct alleged by Columbia
defendants evinces racial stereotyping and remarks that a reasonable
person could find offensive. However,
the allegations do not rise to the
level of being "atrocious" and "intolerable" as required under New York
law. In addition to "extreme and outrageous conduct," plaintiff must show
"intent to cause, or reckless disregard of a substantial probability of
causing, severe emotional distress; a causal connection between the
conduct and the injury; and severe emotional distress." Id. Greene has
not alleged facts that give rise to a clear inference of intent to
cause, or recklessness causing, emotional distress. Thus, this claim
fails as a matter of law.
For all of the foregoing reasons, the Court respectfully recommends
that defendants' motion for summary judgment be GRANTED.
Pursuant to Rule 72, Federal Rules of Civil Procedure, the parties
shall have ten (10) days after being served with a copy of the
recommended disposition to file written objections to this Report and
Recommendation. Such objections shall be filed with the Clerk of the
Court and served on all adversaries, with extra copies delivered to the
chambers of the Honorable Whitman Knapp, 40 Centre Street, Room 1201, and
to the chambers of the undersigned, 500 Pearl Street, Room 1970. Failure
to file timely objections shall constitute a waiver of those objections
both in the District Court and on later appeal to the United States Court
of Appeals. See Thomas v. Arn, 474 U.S. 140, 150 (1985); Small v.
Secretary of Health and Human Services, 892 F.2d 15, 16 (2d Cir. 1989)
(per curiam); 28 U.S.C. § 636(b)(1)(West Supp. 1995); Fed.R.Civ.P. 72,