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BURRELL v. AT&T CORPORATION

October 14, 2005.

CHERIE BURRELL, with spouse, MICHAEL BURRELL, both individually and jointly, Plaintiffs,
v.
AT&T CORPORATION, AT&T SOLUTIONS CORPORATION, RICK OBERMAN, officially and individually, CHAITANYA PATEL, CECILIA ALEXANDER, officially and individually, CHRISTOPHER POLI, officially and individually, and BRIAN FABIANO, officially and individually, Defendants.



The opinion of the court was delivered by: SHIRA SCHEINDLIN, District Judge

OPINION AND ORDER

I. INTRODUCTION

  Michael Burrell and Cherie Burrell are suing AT&T Corporation ("AT&T") and several AT&T employees (collectively, "defendants") alleging that defendants' treatment of Mr. Burrell, a former employee, violated the Family and Medical Leave Act ("FMLA");*fn1 the New York Human Rights Law ("Human Rights Law");*fn2 and the New York City Administrative Code section 8-502 ("section 8-502").*fn3 Additionally, Mrs. Burrell brings claims on her own behalf for violation of section 1981 of Title 42 of the United States Code ("section 1981"); negligent hiring, training, supervision, and retention; breach of employment contract and performance improvement plan contract and wrongful termination; violation of the Employee Retirement Income Security Act ("ERISA");*fn4 unjust enrichment; negligent infliction of economic duress; and negligent and intentional infliction of emotional distress.*fn5

  Mrs. Burrell is not now and has never been an employee of AT&T. While Mrs. Burrell does not specifically allege loss of consortium, given the liberal construction accorded to pro se complaints,*fn6 I will construe her Complaint as having brought loss of consortium claims with regard to: section 1981; negligent hiring, training, supervision, and retention; breach of employment contract and performance improvement plan contract and wrongful termination; negligent infliction of economic distress; and negligent and intentional infliction of emotional distress.*fn7

  Defendants now move to dismiss Mrs. Burrell's Complaint, arguing that she is barred from bringing loss of consortium claims and cannot bring common law claims as derivative claims*fn8 now that Mr. Burrell has withdrawn all of his common law claims.*fn9 Defendants further allege that Mrs. Burrell has failed to provide discovery and has served deficient answers to AT&T's interrogatories and seek dismissal of Mrs. Burrell's Complaint on these grounds as well.*fn10 For the following reasons, defendants' motion to dismiss is granted in part and denied in part. II. BACKGROUND*fn11

  Michael Burrell, an African American, was employed by AT&T for twenty-two years.*fn12 Mr. Burrell typically received excellent employee evaluations, garnering twelve consecutive "far exceed" appraisal ratings, the highest rating available to employees.*fn13 Despite this strong employment history, Mr. Burrell was unexpectedly removed from his position at AT&T in 1994 and told to find a new position within the Company.*fn14 No reason was given for this action, although Mr. Burrell's supervisor stated that he felt Mr. Burrell was earning too much for a "boy from Georgia."*fn15 Mr. Burrell was ultimately able to secure a new position within AT&T, despite attempts by his previous supervisor to sabotage his efforts, and remained in this position until 2001.*fn16 Mr. Burrell continued to receive strong performance evaluations in his new position. However, in 1996 he was passed over for promotion to a supervisor position in favor of a white employee, defendant Rick Oberman.*fn17 Mr. Burrell was at least equally qualified for the supervisor position, but the vacancy was not advertised, so Mr. Burrell did not have an opportunity to apply for it.*fn18 Over the next five years, Oberman denied Mr. Burrell raises and opportunities for advancement, claiming that due to Mr. Burrell's early strong performance, his salary was too high, and white members of the group needed a chance to catch up.*fn19

  During this same period, Mrs. Burrell experienced some serious health problems. Oberman never informed Mr. Burrell of the availability of leave through the FMLA, instead forcing Mr. Burrell to use his vacation time to care for his wife.*fn20 Nor was Mr. Burrell advised of FMLA leave in 2001 when his wife gave birth.*fn21

  In late 2001, just prior to the birth of his son, Mr. Burrell was demoted and transferred out of Oberman's group into a group made up solely of other minorities with lower pay.*fn22 Mr. Burrell's new supervisor, defendant Chitanya Patel, told Mr. Burrell that Oberman had transferred him to "get rid of him" and had referred to Mr. Burrell as a "bad apple."*fn23 Patel refused to allow Mr. Burrell to take leave for his son's birth and, when Mrs. Burrell's health complications forced Mr. Burrell to take emergency leave, complained and called him "irresponsible."*fn24 Patel further demanded that Mr. Burrell return early to work, falsely claiming that all his vacation time had expired, and immediately placed Mr. Burrell on a Performance Improvement Plan ("PIP").*fn25 Mr. Burrell protested this placement, but his complaints to upper management went unanswered, and he was threatened with immediate termination if he failed to sign the PIP contract.*fn26 Patel then launched an harassment campaign against Mr. Burrell, saying he was irresponsible, calling him at home, and encouraging other members of the team to report on Mr. Burrell in order to give upper management grounds to terminate Mr. Burrell.*fn27 Patel ultimately fired Mr. Burrell after setting a deadline for PIP compliance to coincide with Mr. Burrell's prescheduled vacation, knowing he would not be able to comply.*fn28 Following Mr. Burrell's termination, AT&T withheld a portion of Mr. Burrell's pension and reduced his vested benefits in the Company's pension plan.*fn29

  III. LEGAL STANDARD

  A. Standard under Rule 12(b)(6) — Failure to State a Claim

  Under Rule 12(b)(6) of the Federal Rules of Civil Procedure, a motion to dismiss should be granted only if "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'"*fn30 The task of the court in ruling on a Rule 12(b)(6) motion is "merely to assess the legal feasibility of the complaint, not to assay the weight of the evidence which might be offered in support thereof."*fn31 When deciding a motion to dismiss, courts must accept all factual allegations in the complaint as true, and draw all reasonable inferences in plaintiffs' favor.*fn32 Courts generally do not consider matters outside the pleadings but may consider documents attached to the pleadings, documents referenced in the pleadings, or documents that are integral to the pleadings.*fn33

  2. Standard under Rule 37 — Failure to Cooperate with Discovery

  Rule 37(b) expressly provides for dismissal as a sanction where a plaintiff fails to comply with a court order to provide discovery.*fn34 "The imposition of sanctions under Rule 37 is within the discretion of the district court and a decision to dismiss an action for failure to comply with discovery orders will only be reversed if the decision constitutes an abuse of that discretion."*fn35 Dismissal under Rule 37 is a harsh sanction that is to be used only in extreme situations.*fn36 Before a court can dismiss an action under this Rule, it must: (1) find willfulness, bad faith, or fault by the party failing to provide ...


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