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DANIELS v. ALVARADO

March 12, 2004.

WILLIAM DANIELS, Plaintiff ALFREDO ALVARADO; SCOTT HAWORTH; LESTER SCHWAB KATZ & DWYER, LLP; GREGORY I. RASIN; AND JACKSON LEWIS, LLP, Defendants


The opinion of the court was delivered by: JACK WEINSTEIN, Senior District Judge

MEMORANDUM JUDGMENT AND ORDER
I. Introduction
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. Page 2 Defendants have ten days after receipt of the amended complaint to respond.

  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 Page 3 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

  FACTUAL ALLIGATION

  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 Page 4 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, Exhibit 6.

  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 Page 5 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.

  IV. Motion to Dismiss

 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 Page 6 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

  1. Law

  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 Ltd. Sales, Page 7 151 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 ...


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