The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge
JUDGMENT AND ORDER
Plaintiff, pro se, brings twenty-one claims arising out of the alleged
discriminatory conditions of his employment as a paralegal with Lester,
Schwab, Katz & Dwyer, LLP ("LSK&D"). He also sues Gregory I.
Rasin and Jackson Lewis, LLP, the attorney and law firm that represent
LSK&D and two of its employees, Alfredo Alvarado and Scott Haworth,
in this matter.
Defendants move for dismissal of fifteen of the twenty-one claims. The
partial motion to dismiss is based on failure to state a claim upon which
relief can be granted and failure to plead with specificity. Not included
in the motion to dismiss are claims against LSK&D, Alvarado, and
Haworth for negligence in hiring, discriminatory discharge and
retaliatory discharge. For the reasons stated below, defendants' motion
to dismiss is granted except for the fraudulent misrepresentation claims.
Plaintiff is granted leave to amend any claim within twenty days.
Defendants have ten days after receipt of the amended complaint to
Plaintiff moves to disqualify Gregory I. Rasin and Jackson Lewis, LLP,
counsel for the defendants. This motion to disqualify is denied.
II. Summary of Claims and Disposition
The nature of plaintiff's claims and this court's disposition with
respect to each claim moved against are summarized as follows (bearing in
mind that the somewhat confused nature of the complaint by the plaintiff
himself makes deconstruction into specific charges difficult):
Claim Title Type Status of motion
1 Libel per se against LSK&D, Alvarado, Haworth, Jackson Lewis and Rasin State Granted
2 Slander per se against LSK&D, Alvarado, Haworth, Jackson Lewis and Rasin State Granted
3 Tortious interference with business relations against Alvarado State Granted
4 Emotional distress against LSK&D, Alvarado, and Haworth State Granted
5 Negligence in hiring, supervision and retention against LSK&D State Not moved
6 Negligence in hiring, supervision and retention against LSK&D State Not moved
7 Fraudulent misrepresentation against LSK&D and Alvarado State Denied
8 Emotional distress LSK&D, Alvarado, Haworth, Jackson Lewis, Rasin State Granted
9 Emotional distress against Haworth State Granted
10 Discriminatory discharge against LSK&D, Alvarado and Haworth Federal, Title VII Granted as to Alvarado and Haworth
11 Retaliatory discharge against LSK&D, Alvarado, and Haworth Federal, Title VII Granted as to Alvarado and Haworth
12 Discriminatory employment practices against LSK&D, Alvarado and Haworth Federal, Title VII Granted
13 Discriminatory discharge against LSK&D, Alvarado and Haworth State Not moved
14 Retaliatory discharge against LSK&D, Alvarado and Haworth State Not moved
15 Discriminatory employment practices against LSK&D, Alvarado and Haworth State Granted
16 Discriminatory discharge against LSK&D, Alvarado and Haworth State Not moved
17 Retaliatory discharge against LSK&D, Alvarado and Haworth N.Y.C. Not moved
18 Discriminatory employment practices against LSK&D, Alvarado and Haworth N.Y.C. Granted
19 Discriminatory harassment against LSK&D, Alvarado and Haworth N.Y.C Granted
20 Racketeering Influence and Corrupt Organization Act (RICO) claims against
LSK&D, Alvarado and Haworth Federal Granted
21 Attorney misconduct against Gregory Rasin and Jackson Lewis State Granted
In November 2001, plaintiff was hired by LSK&D as a paralegal. He
was involuntarily discharged in January 2003. Defendant Alfredo Alvarado,
a partner at LSK&D, was plaintiffs direct supervisor. The unit for
which plaintiff worked included defendant Scott Haworth, also a partner
at the firm.
Plaintiff claims that a confrontation occurred in early January 2003
between himself and
defendant Alvarado regarding a romantic relationship Alvarado was
allegedly had engaged in with another paralegal. Plaintiff initiated a
conversation on behalf of his co-worker to inform Alvarado she no longer
wished to continue their relationship.
Plaintiff alleges that later that same month he received a call from a
law firm to schedule a deposition for defendant Haworth. He contends that
he told the inquiring firm that Haworth was unavailable and left a
voicemail for defendant informing him of the call. The following day,
Haworth called plaintiff into his office to discuss the scheduling
incident and allegedly proceeded to tell him, "Don't tell people my
personal business, you stupid nigger." Following this exchange, plaintiff
contends that he reported the comment to Alvarado, his supervisor.
Plaintiff was discharged on January 24, 2003.
Defendants contend that plaintiff was fired because of his poor work
performance and problems with alleged absences and low billable hours. In
an email dated February 22, 2002 from Alvarado to Haworth, he expressed
concern with plaintiffs performance. The email stated, in part, "This new
para, possesses none of the nuts & bolts we thought he would."
See Complaint, Exhibit 5. In another email from Alvarado to
LSK&D's personnel director, dated January 10, 2003, Alvarado
summarized complaints received regarding defendant's work: "Since Mr.
Daniels started with the firm, I have received nothing but complaints
about his work, including his work product, his billable hours, and his
`absences' from his desk without explanation." See Complaint,
Plaintiff filed a complaint with the State Division of Human Rights and
the Equal Employment Opportunity Commission ("EEOC") in February 2003
alleging employment discrimination based on race in violation of Article
15 of the Executive Law of the State of New
York (Human Rights Law). Mr. Rasin responded to plaintiffs
complaint in a letter to the State Division on Human Rights dated April
9, 2003. It stated, "[Mr. Daniels] was counseled on several occasions by
Mr. Alvarado with respect to this low billable hours and unsatisfactory
work product. . . . Mr. Daniels' unsatisfactory performance and low
billable hours continued throughout 2002. In 2002, Mr. Daniels billed a
total of 712 hours, below the firm's minimum requirement of 800 hours per
year for paralegals." See Complaint, Exhibit 4. The Attorney
& Paralegal Office Manual supplied to plaintiff by LSK&D at the
commencement of his employment states, "The firm has no minimum billable
hours per year per lawyer or paralegal." See Affidavit of
Williams Daniels, Pro Se, Exhibit 1, Daniels v. Alvarado
(E.D.N.Y. Feb. 9, 2004) (No. 03-5832).
Plaintiffs complaint and EEOC charge were closed in September 2003 at
plaintiffs request. A right to sue letter was issued by the EEOC on
September 17, 2003.
Plaintiff brought this action in November 2003 against Alvarado,
Haworth and LSK&D, as well as the firm and attorney retained by
LSK&D in this matter before this court and the EEOC, Jackson Lewis
LLP and Gregory Raisin. Defendants now move for partial dismissal of the
complaint under Federal Rules of Civil Procedure 8(a)(2), 9(b), and
12(b)(6) for failure to plead causes of action with requisite specificity
and for failure to state a claim for which relief may be granted.
A. Rule 12(b)(6) Standard
Pursuant to Federal Rule of Civil Procedure 12(b)(6), a defendant may
move to dismiss "for failure to state a claim upon which relief may be
granted." Defendant has the burden of
proving "beyond doubt that the plaintiff can prove not set of facts
in support of the claim [that] would entitle him to relief." Conley
v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99 (1957). "The issue is not
whether the plaintiff will ultimately prevail but whether the claimant is
entitled to offer evidence to support the claims." Scheuer v.
Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683 (1974).
When a case involves a pro se litigant, the standards for dismissal are
the same. A court, however, "should give the pro se litigant special
latitude in responding to a motion to dismiss." Adams v.
Galletta, 966 F. Supp. 210, 211 (S.D.N.Y 1997).
B. Fraudulent Misrepresentation
To state a cause of action for fraudulent misrepresentation, a
plaintiff must allege (1) defendant made a representation; (2) as to a
material fact; (3) which was false; (4) and known to be false by the
defendant; (5) the representation was made for the purpose of inducing
the other party to rely upon it; (6) the other party rightfully did rely;
(7) in ignorance of its falsity; and (8) to his injury. Annecy v.
Viscardi, 672 N.Y.S.2d 816 (N.Y. App. Div. 1998).
An at-will employment relationship accords an employer "an unfettered
right to terminate the employment at any time." Murphy v. Am. Home
Prods. Corp., 448 N.E.2d 86, 90 (N.Y. 1983). In the context of such
an employment relationship, an employee can sustain a cause of action for
fraudulent misrepresentation only if it is based on misrepresented facts
that induced him to enter employment with the defendant. Navaraetta
v. Group Health Inc., N.Y.S.2d 839, 840 (N.Y. App. Div. 1993). The
defendant must allege a misstatement of present facts as opposed to
expressions of future expectations. Channel Master Corp. V. Aluminum
151 N.E.2d 833, 835 (N.Y. 1958).
To state a claim for fraudulent misrepresentation a plaintiff must
allege the time, place, speaker and "sometimes even the content of the
alleged misrepresentation" in order to comport with the heightened
pleading requirements for fraud set forth in Rule 9(b) of the Federal
Rules of Civil Procedure. Ouoknine v. MacFarlane, 897 F.2d 75,
78-90 (2d Cir. 1990). While Rule 8(a) only requires a "short and plan
statement" of claims for relief, allegations of fraud must be pleaded
with sufficient specificity such that they give rise to a "strong
inference of fraudulent intent." Id. at 90.
2. Application of Law to Facts
Although Rule 9(b) sets out a heightened pleading standard for causes
of action involving fraud, this rule must be considered in light of
plaintiff's pro se status. Plaintiff sufficiently alleges a misstatement
of existing fact regarding LSK&D's minimum billable hours policy.
Statements contained within the firm's employee manual, received by
plaintiff at the start of his employment, as well as assurances allegedly
made to him by Alvarado during the interview process, refer to a policy
of no minimum billable hours at the firm. Nevertheless, plaintiff was
allegedly discharged, at least in part, for failure to meet an annual
requirement of at least 800 billable hours.
The specificity required in a compliant was achieved in plaintiffs oral
statement at the hearing in this court on the motion to dismiss. He said
in effect that he was informed orally and in the manual given to him at
the time of hiring that no minimum billable hours were required and, in
reliance on those statements, he accepted the job. These allegations
sufficiently provide defendants with notice of the claim and give rise to
an inference of fraudulent ...