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United States District Court, S.D. New York

October 14, 2005.

CHERIE BURRELL, with spouse, MICHAEL BURRELL, both individually and jointly, Plaintiffs,
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



  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 Burrell has withdrawn all of his common law claims.*fn9 Defendants further allege that Mrs.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


  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 discovery, and (2) give notice, especially to a pro se litigant, that violation of the court's order will result in dismissal of the case with prejudice.*fn37


  A. Claim I: 42 U.S.C. § 1981; Claim II: New York Human Rights Law; and Claim III: New York City Administrative Code § 8-502

  Plaintiff alleges that defendants violated section 1981 by demoting Mr. Burrell, failing to inform him of the availability of leave under the FMLA, and breaching the terms and conditions of his employment due to his race, resulting in harm both to Mr. Burrell and plaintiff.*fn38 Plaintiff also claims that defendants denied Mr. Burrell his right to participate in a protected activity due to his race*fn39 in violation of the Human Rights Law and section 8-502.*fn40 In response to the first claim, defendants argue that plaintiff is not entitled to assert a section 1981 claim because she was never employed by AT&T and thus never entered into a contract with AT&T.*fn41 Defendants further contend that the spouse of an aggrieved party, cannot bring a claim under either of the New York statutes.*fn42

  Section 1981 provides in part:

(a) Statement of equal rights
All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts . . .
(b) "Make and enforce contracts" defined
  For purposes of this section, the term "make and enforce contracts" includes the making, performance, modification, and termination of contracts, and the enjoyment of all benefits, privileges, terms, and conditions of the contractual relationship.*fn43 Because plaintiff has no contractual relationship with any defendant she is not covered under section 1981.

  Plaintiff also makes a claim under section 1981 for loss of consortium, but section 1981 cannot support such a claim.*fn44 "A loss of consortium claim is not an independent cause of action; it is a derivative claim. It is clear that federal courts do not recognize such derivative claims based on federal civil rights violations."*fn45 Accordingly, plaintiff's section 1981 claim is dismissed.

  Similarly, "[t]he Appellate Division [of New York State] has repeatedly held that `the spouse of an employee alleging discrimination under the Executive Law is not a `person aggrieved' within the meaning of the statute and a cause of action for loss of consortium cannot be stated under the Executive Law.'"*fn46 This analysis also applies to claims brought under the New York City Administrative Code.*fn47 Accordingly, defendants' motion to dismiss Claims II and III is granted.

  B. Claim IV: FMLA

  Plaintiff further claims that defendants' failure to notify Mr. Burrell of the availability of leave under the FMLA violated the FMLA.*fn48 Defendants claim that plaintiff is not entitled to assert this claim as she is not an "eligible employee" within the meaning of the statute.*fn49

  The FMLA grants a right of action to "any one or more of the employees for and in behalf of (A) the employees; or (B) the employees and other employees similarly situated."*fn50 An "employee" is defined as an individual "who has been employed (i) for at least 12 months by the employer . . .; and (ii) for at least 1,250 hours of service with such employer during the previous 12-month period."*fn51 The courts have construed this definition narrowly, refusing to extend standing to unions*fn52 or to spouses.*fn53 Because plaintiff does not qualify as an "employee" under the FMLA, Claim IV is dismissed.*fn54

  C. Claim IV: Negligent Hiring; Claim VI: Negligent Hiring, Training, Supervision, and Retention; and Claim IX: Negligent Infliction of Economic Duress

  In two separate causes of action, plaintiff claims that defendants were negligent in the hiring of the individual defendants named in her Complaint and in Mr. Burrell's hiring, training, supervision, and retention.*fn55 She also brings a claim against defendants for negligent infliction of economic duress.*fn56 Defendants seek dismissal of these claims on the ground that Mr. Burrell has not brought such claims.*fn57

  Because the actions alleged by Mrs. Burrell were taken only against her husband, her claims must be construed as loss of consortium claims. "A loss of consortium claim is not an independent cause of action, but is derivative in nature, and may only be maintained where permitted pursuant to the primary tort."*fn58 While a loss of consortium claim is usually permitted with regard to negligence, plaintiff's claim cannot be sustained in the absence of a similar claim from her husband.*fn59 Because Mr. Burrell has dropped the common law claims from his Amended Complaint, plaintiff no longer has a cause of action for her derivative claims.*fn60 Claims IV, VI, and IX are therefore dismissed.

  D. Claim VII: Breach of Employment Contract, Breach of Performance Improvement Plan Contract, and Wrongful Termination Plaintiff also alleges that defendants breached both Mr. Burrell's employment contract and his performance improvement plan contract and wrongfully terminated Mr. Burrell, all because of his race.*fn61 Defendants claim that plaintiff lacks standing to bring these claims because she had no contract with AT&T.*fn62

  Defendants are right. A plaintiff cannot sue for breach of contract on behalf of an injured spouse — only the parties to the contract are entitled to sue.*fn63 Moreover, "a cause of action for loss of consortium cannot be based on employment discrimination."*fn64 The gravamen of plaintiff's claims is that her husband was a victim of impermissible discrimination, but Mrs. Burrell lacks standing to assert such claims directly or on his behalf. Accordingly, Claim VII is dismissed.

  E. Claim VIII: Violation of ERISA and Unjust Enrichment

  Plaintiff also claims that AT&T violated ERISA by improperly calculating Mr. Burrell's pension and by withholding one of his payments to the pension fund.*fn65 Defendants respond that only an employee can assert such a claim, not a beneficiary.*fn66

  Under ERISA, "a civil suit may be brought by a participant or beneficiary . . . to recover benefits due him under the plan."*fn67 The courts have recognized that "the spouse of a plan participant is a beneficiary under ERISA and . . . absent a valid waiver or election, the spouse has standing to maintain an action under § 1132(a)."*fn68 While plaintiff's exact claim under ERISA is not entirely clear, I will construe her claim as one for breach of the obligations created under AT&T's pension plan.*fn69

  Plaintiff's ERISA claim is brought against both AT&T and the individuals named as defendants in her Complaint. Because these individual employees had no involvement with or control over AT&T's pension plan, they cannot be considered fiduciaries under ERISA and thus have no liability.*fn70 Defendants' motion to dismiss plaintiff's ERISA claim is therefore granted with respect to the individual defendants but denied with respect to AT&T.

  Plaintiff also claims defendants were unjustly enriched because Mr. Burrell's pension benefits were miscalculated. ERISA, however, preempts the common law claim for unjust enrichment by providing that "assets of a plan shall never inure to the benefit of any employer and shall be held for the exclusive purposes of providing benefits to participants in the plan. . . ."*fn71 Thus, Mrs. Burrell's unjust enrichment claim is dismissed.*fn72

  F. Claim X: Negligent and Intentional Infliction of Emotional Distress

  Plaintiff's final claim against AT&T is for negligent and intentional infliction of emotional distress.*fn73 Defendants once again argue that these actions must be dismissed in the absence of similar claims by Mr. Burrell.*fn74 To the extent these are derivative claims, they must be dismissed for the reasons set forth earlier. Mr. Burrell has not brought any claims for the intentional or negligent infliction of emotional distress.

  However, plaintiff alleges for the first time in her opposition brief that she has an independent cause of action for intentional infliction of emotional distress arising from several harassing phone calls allegedly made by Chaitanya Patel directly to her home.*fn75 The Second Circuit has advised that "[w]hen considering motions to dismiss a pro se complaint . . . courts must construe the complaint broadly, and interpret it to raise the strongest arguments that it suggests."*fn76 Thus, this Court has often considered allegations raised by a pro se litigant in post-pleading submissions to the Court.*fn77

  Even accepting plaintiff's allegations as true, Patel's actions do not support a claim of emotional distress. "Under New York law, a claim for intentional infliction of emotional distress requires a showing of (1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress."*fn78 A claim for negligent infliction of emotional distress, under New York law, must meet the same "extreme and outrageous" requirement.*fn79 Patel's calls, while perhaps intimidating and intrusive, do not satisfy the extreme and outrageous requirement as "[l]iability has been found only where 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."*fn80 Because plaintiff has failed to plead such conduct, her claims for negligent and intentional infliction of emotional distress are dismissed.

  G. Motion to Dismiss for Failure to Provide Discovery

  Defendants also move to dismiss plaintiff's claims on the ground that she has failed to provide discovery as ordered by this Court on February 27, 2004.*fn81 Dismissal for failure to provide discovery is the strongest sanction available under Rule 37 and should be reserved for extreme situations.*fn82 As this case involves a pro se plaintiff, I will deny defendants' motion to dismiss, but plaintiff is put on notice that further non-compliance may result in dismissal of her case. Plaintiff is hereby directed to provide all requested discovery by October 31, 2005. No further discovery abuses will be tolerated. Despite plaintiff's pro se status, she must be aware that choosing to participate in the litigation process requires her to undertake certain responsibilities — meeting her discovery obligations is one of them.

  Defendants' motion to dismiss for failure to comply with discovery under Rule 37 is thus denied.


  For the foregoing reasons, defendants' motions to dismiss are granted with the exception of their motion to dismiss plaintiff's ERISA claim against AT&T. The Clerk of the Court is directed to close this motion [Docket #45]. A status conference is scheduled for Friday, October 28, 2005 at 3:00 pm. SO ORDERED:


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