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United States District Court, Southern District of New York

September 3, 2003


The opinion of the court was delivered by: VICTOR Marrero, District Judge


Plaintiff Aleksandre Chimarev ("Chimarev"), proceeding pro se, filed a complaint in New York State Supreme Court, New York County, against his former employer, TD Waterhouse Investor Services, Inc. ("TD Waterhouse"), alleging various claims relating to discrimination in his employment. (See Complaint and Demand for Jury Trial, dated July 23, 2001 ("Complaint") at ¶¶ 4(a)-(j), 5.) TD Waterhouse removed the case to federal court and subsequently moved as dismiss the Complaint pursuant to Fed.R.Civ.P. 12 [ILLEGIBLE TEXT] in the alternative, for summary judgment pursuant to Fed.R.Civ.P. 56. Chimarev opposed the motion and cross-moved for summary judgment. On July 2003, Magistrate Judge Gaoriel Gorenstein issued a Report and Recommendation (the "Report") recommending that TD Waterhouse's motion for summary judgment be granted and that Chimarev's cross-motion for summary judgment be Page 2 denied. The Report is attached and incorporated herein. On July 24, 2003, Chimarev filed timely objections to the Report. By Order dated July 29, 2003, the Court ruled upon the respective motions and stated that its findings, conclusions and reasoning would be set forth in a separate Decision and Order to be made available to the parties. Accordingly, the Court, having reviewed the record, Chimarev's objections and the analysis and conclusions in the Report de novo, grants TD Waterhouse's motion for summary judgment and denies Chimarev's cross-motion for summary judgment essentially for the reasons articulated in Magistrate Judge Gorenstein's Report.


Magistrate judges are empowered by statute to preside over certain pretrial matters upon referral by a district judge. See 28 U.S.C. § 636 (b)(1)(a). The district judge evaluating a magistrate judge's recommendation may adopt those portions of the recommendation, without further review, where no specific objection is made, as long as they are not clearly erroneous. See id.; Fed.R.Civ.P. 72(b); see also Thomas v. Arn, 474 U.S. 140, 149 (1985) (district courts are not required to conduct "any review at all . . . of any issue that is not the subject of an objection.") However, when a party makes "specific, written objections" within" ten days after Page 3 being served with a copy of the magistrate judge's report and recommendation, the district court must undertake de novo review of those contested aspects of the report. 28 U.S.C. § 636 (b)(1)(c); see also Fed.R.Civ.P. 72(b). The district judge may then "accept, reject, or modify the recommended decision, receive further evidence, or recommit the matter to the magistrate judge with instructions." Fed.R.Civ.P. 72(b).

In this instance, Magistrate Judge Gorenstein recommends that summary judgment be granted to TD Waterhouse, dismissing the Complaint in its entirety. In light of Chimarev's objections, the Court independently reviews those aspects of the Report to which Chimarev specifically objects and adopts the remainder of the Report, to which no objections have been raised, without further review.



1. Title VII

Chimarev objects to the Report's dismissal of his claims pursuant to Title VII, 42 U.S.C. § 2000e et seq. ("Title VII"), all of which relate to the alleged discrimination against him by TD Waterhouse in violation of the terms and conditions of his employment. Chimarev contends that because Page 4 he established a prima facie case of discrimination in the workplace, a presumption of discrimination arises and the burden to articulate a legitimate reason for the challenged employment decision is on TD Waterhouse. Therefore, Chimarev argues that it is proper for him to bring his claims of discrimination and retaliation under Title VII.

Regardless of the potential substantive merit of Chimarev's Title VII claims, however, he is procedurally barred from pursuing any claims under Title VII due to his failure to file a complaint with the Equal Employment Opportunity Commission ("EEOC") or an appropriate state or local administrative agency. It is well settled that w [a] plaintiff may bring an employment discrimination action under Title VII or the ADEA only after filing a timely charge with the EEOC or with a "State or local agency with authority to grant or seek relief from such practice.'" Holtz v. Rockerfeller & Co., Inc., 258 F.3d 62, 82-83 (2d Cir. 2001) (quoting 42 U.S.C. § 2000e-5). Filing with the EEOC or other appropriate administrative agency is a condition precedent to bringing a Title VII claim in this Court: "[E]xhaustion of administrative remedies through the EEOC stands as *an essential element of Title VII's statutory scheme,' . . . and one with which defendant's are entitled to insist that plaintiffs comply." Francis v. City of New York, 235 F.3d 763, 767-768 Page 5 (2d Cir. 2000) (quoting Butts v. City of New York Dep't of Hous. Pres. and Dev., 990 F.2d 1397, 1401 (2d Cir. 1993)).

Although Chimarev complained internally about his alleged discriminatory treatment within TD Waterhouse on multiple occasions, he admittedly never brought claims regarding discrimination to either the EEOC or the New York State Division of Human Rights. (Deposition of Aleksandre I. Chimarev ("Chimarev Dep."), dated December 4, 2001, attached as Exh. B to the Reply Affirmation of Jonathan Stoler in Support of Defendant's Motion for Summary Judgment ("Stoler Aff."), dated May 19, 2003, at 19-20.) Chimarev's attempts to "avail himself of justice within the administrative organs of the institution that wronged him," (Plaintiff's Opposition and Counter Motion in Response to Defendant's Motion for Summary Judgment ("Pl. Opj."), dated April 16, 2003, at 7), are insufficient to meet the filing requirements of Title VII; and therefore, his Title VII claims are procedurally barred.

2. Failure to Pay

Chimarev next objects to the Report's findings with regard to his "failure to pay claim" under the Fair Labor Standards Act, 29 U.S.C. § 160, et seq. ("FLSA"). Specifically, Chimarev challenges the Report's conclusion that "TD Waterhouse adduced undisputed evidence that Chimarev was terminated on February 7, 2001," (Report at 16), and he Page 6 reiterates his assertion that he is owed salary and severance, and that he was not actually terminated until mid-March 2001. (Plaintiff's Objections and Responses to Report and Recommendation ("Pi. Obj."), dated July 24, 2001, at 5.)

Chimarev's failure to pay claim must be dismissed. Although Chimarev claims that he had "no advance notice of termination, no exit interview, no final payment, signatures, etc.," (Id. at 5), Chimarev asserts in his Complaint that he was terminated. (Complaint ¶¶ 4(e), 6(d)). With regard to the date upon which Chimarev's termination became effective, TD Waterhouse has produced documentary and testimonial evidence establishing that Chimarev was terminated by Curtis Langdon ("Langdon"), Vice President of Human Resources at TD Waterhouse, during a meeting on February 7, 2001, and that the termination was intended to be effective immediately. (See email from Langdon to Sharon Alton, dated February 7, 2001, attached as Exh. P to the Stoler Aff.; letter from Pauline Chin to Chimarev, dated March 2, 2001, attached as Exh. S to the Stoler Aff; Affidavit of Langdon, dated February 14, 2003, at ¶ 20.) In fact, in his deposition, Chimarev himself admits that his last day of work was February 7, 2001, and that Langdon informed him that he was terminated verbally on that date. Chimarev complains, however, that his dismissal was not legal because it was "subterfuge" and because he did not Page 7 receive the proper paperwork until mid-March 2001. (See Chimarev Dep. at 141-142; Pl. Obj. at 5.)

Since Chimarev was an at-will employee, he could be fired at any time without notice, as is specified in a letter offering Chimarev employment at TD Waterhouse ("Offer Letter") from Langdon, dated June 22, 2000: "Your employment with the Company, should you accept this offer, will not be for any specified term and may be terminated at any time, with or without notice, by you or the Company for any reason." (Offer Letter, attached as Exh. C to the Stoler Aff. at 2.) Moreover, where no particular form of termination is required by an employment contract, oral termination is equally as effective in terminating an at-will employee as a written termination letter. (See. e.g., Bargstedt v. Cornell University, 757 N.Y.S.2d 646, 646 (App. Div. 3rd Dept. 2003) (oral termination of employee immediately effective); Mohawk Agency, Inc. v. American Cas. Co., 227 F. Supp. 745, 749 (N.D.N.Y. 1964) (oral termination insufficient: because contract required written termination). Chimarev was thereby terminated, orally, on February 7, 2003. Therefore, based on the undisputed evidence in the record, in particular Chimarev's own admission, Chimarev was appropriately paid until the date of his termination on February 7, 2001. Consequently, he has no claim for unpaid salary under FLSA. Page 8

Moreover, with regard to Chimarev's claim that he is owed severance, he has failed to provide any evidence that he was contractually entitled to severance pay. Therefore, he has failed to produce sufficient evidence of his entitlement to severance pay to create an issue of material fact to be litigated before a jury.


1. Public Policy

Chimarev next objects to the Report's conclusions with regard to his state law claim for breach of public policy, good faith and fair dealing. Chimarev clarifies that he bases this claim not on his alleged wrongful termination, as the Report implies, but on TD Waterhouse's failure to transfer him to another, discrimination-free department in accordance with his repeated requests.

However, the Court is not persuaded that this distinction is legally significant. Whether for an alleged adverse employment action, such as refusal to transfer, or for wrongful discharge, a cause of action for a breach of public policy can not be maintained under New York law. See Lobosco v. New York Tel. Co./NYNEX, 751 N.E.2d 462, 464 (N.Y. 2001) (citing Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 297 (N.Y. 1983). In other words, there is no legally actionable public policy basis under New York law for Chimarev to sue TD Page 9 Waterhouse for its failure to provide him with a desired transfer, a less drastic measure than wrongful discharge. In this case, moreover, as a factual matter, Chimarev did not even meet the stated requirements for such a transfer. (See letter from Langdon to Wayne Kyle and Sharon Alton, dated February 7, 2001, attached as Exh. O. to the Stoler Aff.)

2. Intentional Inflict of Emotional Distress

Chimarev next objects to the Report's conclusion that he failed to state a claim for intentional infliction of emotional distress. However, even if deemed true, Chimarev's allegations concerning TD Waterhouse's improper conduct do not satisfy the standards for stating a claim for emotion distress under New York law. In this regard, the Court agrees with Magistrate Judge Gorenstein's conclusion.

A plaintiff must satisfy four elements to state a claim for the intentional inflict of emotional distress under New York law: "(i) extreme and outrageous conduct; (ii) intent to cause, or disregard of a substantial probability of causing severe, emotional distress; (iii) a causal connection between the conduct and injury; and (iv) severe emotional distress." Howell v. New York Post Co., 612 N.E.2d 699, 702 (N.Y. 1993) (citations omitted). The threshold for meeting the extreme and outrageous conduct element is high: "Liability has been found only where the conduct has been so outrageous in Page 10 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 community." Murphy, 58 N.Y.2d at 297 (quoting Restatement [Second] of Torts § 46, cmt. d (1965)).

Chimarev specifies the alleged overall discriminatory and abusive treatment he suffered during his employment by asserting that TD Waterhouse prevented him from attending meetings and social events, denied him his chosen workplace for the benefit of a younger co-worker, destroyed and scattered his books and documentation, deprived him of his work tools, and subjected him to insults and slurs based on his nationality. The Court is not persuaded that these allegations amount to the requisite level of extreme and outrageous conduct defying all bounds of civilized society. Simply put, being snubbed by co-workers, disciplined by managers in an unpleasant manner, and taunted by peers for ethnic differences are not actionable under the tort of intentional infliction of emotional distress. See, e.g., Herlihy v. Metropolitan Museum of Art, 633 N.Y.S.2d 106, 114 (App. Div. 1st Dep't 1995) (ethnic epithets, sexual harassment, and discrimination were found to be "wholly inappropriate but not so outrageous in character or so extreme in degree as to be wholly intolerable in a civilized Page 11 community."); Leibowitz v. Bank Leumi Trust Co. of N.Y., 548 N.Y.S.2d 513, 522 (App. Div. 2nd Dep't 1989) (the use of the terms "Hebe" and "Kike" was strongly disapproved and condemned but was found to be not so extreme or outrageous as to meet the threshold requirement for a cause of action of intentional infliction of emotional distress); Folev v. Mobil Chemical Co., 626 N.Y.S.2d 906, 907-908 (App. Div. 4th Dep't 1995); Nader v. General Motors Corp., 255 N.E.2d 765, 770 (N.Y. 1970) ("[I]t is manifestly neither practical nor desirable for the law to provide a remedy against any and all activity which an individual might find annoying.")

Furthermore, as indicated in the Report, because he was an at-will employee, Chimarev is also precluded from bringing a claim for intentional infliction of emotional distress to the extent that his claim is based on his termination from TD Waterhouse. See Abeles v. Mellon Bank Corp., 747 N.Y.S.2d 372, 373 (App. Div. 1st Dep't 2002) ("Plaintiff was an at-will employee terminable from her position at any time and for any reason, or even for no reason at all, and thus was without recourse to sue, as she has, for wrongful discharge by means of a cause of action for intentional infliction of emotional distress.") (citing Murphy 58 N.Y.2d at 300, 303)). Page 12

3. Breach of Contract and Fraud

Chimarev further objects to the Report's dismissal of his breach of contract and fraud claims, asserting that TD Waterhouse broke its employment agreement with him by failing to provide a safe, discrimination free environment, depriving him of his workspace and tools, reducing his position in the company to that of a "doorman," and using his superior "know-how" for the benefit of training workers who lacked a PhD and his extensive experience. However, Chimarev does not even attempt to refute the settled legal principle cited by Magistrate Judge Gorenstein that an at-will employees can not sue for breach of contract or fraud with regard to a nonexistent employment contract. Chimarev merely recites the bases for his allegations without contending with the legal principles set forth in the Report. Therefore, Chimarev's conclusory objection is to no avail.

Chimarev signed the Offer Letter, which explicitly indicated that the terms of his employment were at-will. (See Offer Letter, attached as Exh. C to the Stoler Aff.) Moreover, under New York law, "[a]bsent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party." De Petris v. Union Settlement Assoc., Inc., 657 N.E.2d 269, 271 (N.Y. 1995) (citing Sabetav v. Sterling Page 13 Drug, 69 N.Y.2d 329, 222 (1987)). Thus, as an at-will employee, who can be terminated at any time and for any reason, Chimarev can not maintain an action for breach of contract where no such contract existed. See Minton v. Lenox Hill HOSP., 160 F. Supp.2d 687, 699 (S.D.N.Y. 2001).

Moreover, with regard to Chimarev's assertion that TD Waterhouse engaged in fraudulent misrepresentation by hiring him only to transfer his "know-how" to other workers, under New York law, a claim of fraud requires that the plaintiff demonstrate reasonable reliance upon a false statement. See Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). Here, it is not entirely clear what misrepresentation Chimarev alleges. Understood liberally, the false statement might be TD Waterhouse's offer of employment, although in actuality Chimarev alleges that TD Waterhouse only wanted to transfer his know-how to other employees. However, as Chimarev's employment offer was at-will, and Chimarev could be fired at any time and for any reason, he cannot provide any evidence of reasonable reliance based on the Offer Letter. See Arias v. Women in Need, Inc., 712 N.Y.S.2d 103, 103-104 (App. Div. 1st Dep't 2000); see also Tannehill v. Paul Stuart, Inc., 649 N.Y.S.2d 505, 506 (App. Div. 1st Dep't 1996) (u[i]t cannot be said that plaintiff reasonably relied on defendant's representation, because the offered employment was at will"). Page 14 Moreover, it is not inappropriate for an employee to be expected to transfer his know-how to other employees, nor is an expectation of such on the part of an employer legally actionable under New York law.

4. Invasion of Privacy

Similarly, in his objection to the Report's recommendation that his invasion of privacy claim be dismissed, Chimarev summarily restates his claim but fails to refute the valid legal conclusions in the Report. In New York, "the right to privacy is governed exclusively by sections 50 and 51 of the Civil Rights Law; [New York has] no common law of privacy." Howell, 612 N.E.2d at 703. Section 50 of the Civil Rights Law prohibits the unauthorized commercial use of a private persons "name, portrait, or picture" without prior consent, while section 51 provides a private right of action to a person aggrieved under section 50. See N.Y. Civil Rights L. § 50, 51 (McKinney 2003).

According to TD Waterhouse, Chimarev's inability to provide supervisors with documentation of his work, failure to complete assigned projects, and on-going disciplinary issues such as insubordination and disregard for protocol led to concerns regarding how Chimarev was using his time on TD Waterhouse computer systems. As a result, an executive decision was made to look into Chimarev's computer and email Page 15 records for inappropriate use of TD Waterhouse servers and records. (Stoler Aff. Ex. G.) Since New York's limited right of privacy does not prohibit an employer from accessing employee email and other documents produced on the company's system, Chimarev has no claim to adjudicate.

5. Opportunity for Discovery

Finally, with regard to Chimarev's objection to the Reports's conclusion concerning the sufficiency of his time for discovery, the Court is persuaded that ample time for discovery was afforded. In addition, Chimarev does not submit any affidavit or other evidence that establishes what further information could be unearthed by any specific additional discovery: "[A] party resisting summary judgment on the ground that it needs discovery in "order to defeat the motion must submit an affidavit showing `(1) what facts are sought [to resist the motion] and how they are to be obtained, (2) how those facts are reasonably expected to create a genuine issue of material fact, (3) what effort affiant has made to obtain them, and (4) why the affiant was unsuccessful in those efforts.'" Guary v. Winehouse, 190 F.3d 37, 43 (2d Cir. 1999) (quoting Meloff v. N.Y. Life Ins. Co., 51 F.3d 372, 375 (2d Cir. 1995) (citations omitted). Because Chimarev has not met this requirement, and because extensive discovery has already occurred, Chimarev's objection to the lack of discovery does Page 16 not persuade the Court that TD Waterhouse's motion for summary judgment should be denied.


For the reasons stated above, and as set forth by Magistrate Judge Gorenstein in the Report, it is hereby

ORDERED that the Court's Order dated July 29, 2003, is amended to incorporate the discussion set forth above; and it is further

ORDERED that TD Waterhouse's motion for summary judgment is granted.

ORDERED that Chimarev's cross-motion for summary judgment is denied.

The Clerk of the Court is directed to close this case.



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