United States District Court, S.D. New York
November 10, 2005.
DONALD WEBSTER LANGHORNE, Plaintiff,
THE PORT AUTHORITY OF NEW YORK AND NEW JERSEY and ROBERT HALF INTERNATIONAL, INC., Defendants.
The opinion of the court was delivered by: GABRIEL GORENSTEIN, Magistrate Judge
REPORT AND RECOMMENDATION
Plaintiff Donald Webster Langhorne filed this complaint against
his former employer, the Port Authority of New York and New
Jersey ("Port Authority"), and Robert Half International, Inc.
("RHI"). The complaint purports to raise claims against RHI under
42 U.S.C. § 1985(3), N.Y. Exec. Law § 296(1) and N.Y.C. Admin.
Code § 8-107, prima facie tort, and tortious interference of
contract. RHI has moved to dismiss the complaint for, inter
alia, failure to state a claim under Fed.R.Civ.P. 12(b)(6).
For the reasons stated below, RHI's motion to dismiss should be
A. Factual History
The following facts are alleged by Langhorne in his Amended
Complaint and are accepted as true for the purposes of the
current motion. See Amended Complaint and Jury Trial Demand,
dated May 21, 2004 ("Am. Compl.") (Docket #10). Donald Langhorne worked as an employee of the Port Authority
from May 1999 until January 31, 2003, when he was terminated.
See Am. Compl. ¶ 4. The Port Authority is a bi-state entity
created by compact between the States of New York and New Jersey.
See id. ¶ 6. Between May 1999 and October 2001, Langhorne
held several different positions within the Port Authority,
including Summer Law Intern, Senior Paralegal Specialist, and
permanent Law Intern. See id. ¶¶ 12-13. Following the
destruction of the World Trade Center on September 11, 2001,
Langhorne was transferred, along with three other employees, to a
newly-created subdivision of the Administrative and Technical
Services Division later named the Litigation Management Unit
("LMU") for the purpose of retrieving and reconstructing legal
case files destroyed on September 11th. See id. ¶¶ 15-16.
For the next several months, the LMU operated with no formal
policy, and sometimes without regular access to computers and
phones. See id. ¶¶ 16-18. On January 23, 2002, Langhorne
learned from a time and labor summary sheet that his income had
been deducted for being "AWOL" on January 10 and 11, 2002. He
disputes this characterization, claiming that he had left on
those days only because his workstation was temporarily
inaccessible. See id. ¶¶ 18-19. On January 28, Langhorne was
called in to a meeting and reprimanded for these disputed
absences. Id. ¶ 19. On February 7, Langhorne's manager,
Josephine Gajewski, memorialized the January 28 meeting,
threatened Langhorne with disciplinary action for his disputed
absences and other alleged infractions, and asked him to sign a
"confidential memorandum." Id. ¶ 20. Langhorne refused to sign
and was told he could respond to the disputed claims in writing,
seek counsel from the Employment and Labor Law Division of the
Law Department, or contact Human Resources. Id. ¶ 21. Upon
contacting Human Resources, he was told his case was a "conflict of interest" and that he would need to secure outside
counsel an instruction he believed violated his rights as a
Port Authority employee. See id. ¶ 22. Langhorne consulted an
attorney, but did not have sufficient documentation and was
unable to afford counsel's hourly rates. Id. ¶ 23.
In February 2002, the LMU was reorganized, and the Port
Authority brought in two temporary employees of an "independent"
employment agency to act as a manager and supervisor. See id.
¶ 24. The independent employment agency was defendant RHI, and
the supervisor was Jonathan Stark, an employee of a subsidiary of
RHI called The Affiliates. See id. ¶¶ 9, 24. RHI is a
personnel services, recruiting, and placement firm. Id. ¶ 9.
Langhorne asked why he had not been given the chance to apply
for the supervisory position and was told he was not qualified,
even though he had more formal and legal education and work
experience than Stark. Id. ¶ 24. Stark is a white male;
Langhorne is an African-American male. Id. ¶¶ 4, 24.
Stark immediately began compiling a "secret log" against
Langhorne. Id. ¶ 25. On March 5, 2002, Stark ordered Langhorne
to sign a memorandum relating to Langhorne's new job duties. When
Langhorne asked whether other employees were required to do this,
Stark told him that if he did not sign he would be accused of
insubordination. Id. ¶ 26. On April 19, 2002, Langhorne was
called to Gajewski's office, where he was served with a draft of
a charge against him and a recommendation for his termination. He
was told to review the draft and report to a meeting one week
later. He subsequently learned from the Labor Relations Division
that a disciplinary proceeding against him was being initiated,
but he had not previously received any information about this.
See id. ¶ 27. At the follow-up meeting on April 30, 2002, Langhorne met with
Gajewski and Stark, who told him that he could accept five days'
suspension without pay and ten days "in abeyance" as an
alternative to the termination proceeding. His only other option,
he was told, was to resign. See id. ¶ 28. He was also told
that the offer was good until May 3, but when he appeared on that
day, he learned that the offer had been revoked on May 1, without
his knowledge, because he had failed to move his computer monitor
as requested by Stark. No other employees were similarly ordered
to move their monitors. Id. ¶¶ 28-30. Langhorne was told to
contact Labor Relations to present a counteroffer. Id. ¶ 30.
On May 9, 2002, Langhorne received an e-mail from Gajewski
demanding his resignation by the following day, and stating that
he would otherwise be suspended without pay pending a hearing to
terminate him. Id. ¶ 31. He refused to resign, and the Port
Authority filed a formal charge against him. Id. On May 28,
2002, Langhorne received a job evaluation that he disputed and
refused to acknowledge. Id. ¶ 32. On July 9, 2002, Langhorne
was served with the charge and nine specifications. Jeffrey
Green, General Counsel of the Port Authority, was the
complainant, the reviewer of the complaint, and the reviewer of
the selection of the Impartial Hearing Officer for the
disciplinary proceeding. Id. ¶ 33. Langhorne states that this
was a conflict of interest and against the terms of his
Langhorne's first hearing was on July 30, 2002, at which time a
tenth specification was added: the falsification of time sheets
specifically, the deletion of alterations made by Stark.
Langhorne appeared at the hearing pro se. Id. ¶ 34.
Langhorne also appeared pro se at his second hearing, on
August 12, 2002. Id. ¶ 35. After the second hearing, Langhorne
contacted the Port Authority's Office of Equal Opportunity Employment to
complain of discrimination, but that office did not inquire
On October 31, 2002, the Impartial Hearing Officer recommended
Langhorne's termination, and Langhorne was suspended with pay
pending the outcome of the disciplinary process. Id. ¶ 37. On
November 19, 2002, Langhorne filed a charge of discrimination
with the Equal Employment Opportunity Commission ("EEOC"), which
forwarded the charge to the New York State Division of Human
Rights. Id. ¶¶ 38-39.
On January 31, 2003, the Port Authority approved the
recommendation of Langhorne's termination an action that did
not conform to the Port Authority's established process. Id. ¶
B. Court Proceedings
On March 10, 2003, the EEOC issued a "Notice of the Right to
Sue." Id. ¶ 41. On May 30, 2003, Langhorne commenced a special
proceeding under Article 78 of the Civil Practice Law and Rules
in the Supreme Court, New York County, against defendant Port
Authority and several individual employees of the Port Authority.
Id. ¶ 42. On October 10, 2003, the case was transferred to the
Appellate Division, First Department, and is still pending. Id.
Langhorne's pro se complaint in this action was filed on
June 24, 2003. Langhorne thereafter obtained counsel, Robert
Barsch, who filed an Amended Complaint on May 21, 2004, adding
RHI as a defendant. See Am. Compl. ¶¶ 9-11. The bases for the
claims against RHI are 42 U.S.C. § 1985(3), id. ¶¶ 54-57;
prima facie tort, id. ¶¶ 74-77; employment discrimination
and retaliation under N.Y. Exec. Law § 296(1) and N.Y.C. Admin.
Code § 8-107, id. ¶¶ 78-84, 85-90, 91-99, 100-08; and tortious
interference of contract, id. ¶¶ 109-12. The Amended Complaint was not served on RHI until December 31,
2004. See Memorandum in Support of Defendant's Motion to
Dismiss the Amended Complaint, at 6. RHI now moves to dismiss all
claims against it for failure to state a claim, for failure to
make timely service, and on statute of limitations grounds. See
id. at 6-12. Because the Amended Complaint fails to state a
claim, it is unnecessary to reach the other grounds raised.
A. Standard of Review
On a motion to dismiss under Rule 12(b)(6), dismissal is
appropriate "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.'" Ganino v. Citizens Utils. Co.,
228 F.3d 154, 161 (2d Cir. 2000) (quoting Friedl v. City of New
York, 210 F.3d 79, 83 (2d Cir. 2000)). The complaint need only
give "fair notice of what petitioner's claims are and the grounds
upon which they rest." Swierkiewicz v. Sorema N.A.,
534 U.S. 506, 514 (2002). All allegations made by the plaintiff are
accepted as true and all reasonable inferences are drawn in
plaintiff's favor. See Halperin v. Ebanker USA.com, Inc.,
295 F.3d 352, 356 (2d Cir. 2002). "At the 12(b)(6) stage, `[t]he
issue is not whether a plaintiff is likely to prevail ultimately,
but whether the claimant is entitled to offer evidence to support
the claims. Indeed it may appear on the face of the pleading that
a recovery is very remote and unlikely but that is not the
test.'" Chance v. Armstrong, 143 F.3d 698, 701 (2d Cir. 1998)
(quoting Branham v. Meachum, 77 F.3d 626, 628 (2d Cir. 1996)).
B. The § 1985(3) Conspiracy Claim
In order to state a claim of conspiracy under
42 U.S.C. § 1985(3), a plaintiff must allege four elements: "(1) a
conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the
laws, or of equal privileges and immunities under the laws; and
(3) an act in furtherance of the conspiracy; (4) whereby a person
is either injured in his person or property or deprived of any
right or privilege of a citizen of the United States." United
Bhd. of Carpenters and Joiners v. Scott, 463 U.S. 825, 828-29
(1983). These allegations must be more than "conclusory, vague,
or general" if they are to withstand a motion to dismiss on the
pleadings. Webb v. Goord, 340 F.3d 105, 111 (2d Cir. 2003)
(citing Boddie v. Schnieder, 105 F.3d 857, 862 (2d Cir. 1997)),
cert. denied, 540 U.S. 1110 (2004); cf. Straker v.
Metropolitan Transit Auth., 333 F. Supp. 2d 91, 102 (E.D.N.Y.
2004) (while a heightened pleading standard is not required in
civil rights cases, "a claim that does not contain any supporting
factual allegations cannot withstand a Rule 12(b)(6) motion")
In this case, it is not necessary to rely on a heightened
pleading standard for civil rights cases to determine that the
Amended Complaint fails to state a claim. The Amended Complaint
contains no factual allegations that defendants RHI and Port
Authority engaged in any behavior constituting a conspiracy to
deprive him of any protected rights. Indeed, Langhorne does not
even allege that RHI knew of his existence. Rather, Langhorne's
complaint is that RHI was the employment agency that initially
placed Stark the supervisor who allegedly engaged in
discriminatory acts at the Port Authority. While the complaint
states conclusorily that RHI and the Port Authority "have
conspired" to deprive Langhorne of his federal rights, see Am.
Compl. ¶¶ 54-57, it does not "`provide some factual basis
supporting a meeting of the minds, such that defendants entered
into an agreement, express or tacit, to achieve the unlawful
end.'" Webb v. Goord, 340 F.3d at 110 (quoting Romer v.
Morgenthau, 119 F. Supp. 2d 346, 363 (S.D.N.Y. 2000)). Thus, the
amended complaint fails because it does not "point to any
specific evidence of communications between the two entities," and "only vaguely
refers to some `conspiracy.'" Gyadu v. Hartford Ins. Co.,
197 F.3d 590, 591 (2d Cir. 1999).
In addition, because a corporation can act only through its
agents, see, e.g., Braswell v. United States, 487 U.S. 99,
110 (1988) (citation omitted), the conclusory statement that
"RHI" as opposed to some individual acting as RHI's agent
conspired with the Port Authority to deprive plaintiff of his
rights fails to give "fair notice of . . . the grounds upon which
[plaintiff's claims] rest." Swierkiewicz, 534 U.S. at 514. The
allegations regarding Stark's conduct do not cure this defect
because Langhorne alleges that Stark, although an employee of
RHI, was acting as Langhorne's superior at the Port Authority
with respect to his allegedly improper treatment of Langhorne.
See Am. Compl. ¶¶ 24-26, 28-29. In other words, the factual
allegations of the complaint are that Stark was the Port
Authority's agent, not RHI's, with respect to his allegedly
improper treatment of Langhorne.
The Court declines to consider Langhorne's additional
allegations regarding the relationship between RHI and the Port
Authority, see Plaintiff's Memorandum in Opposition to
Defendant's Motion to Dismiss, filed June 13, 2005 ("Opp. Mem."),
at 6-7, as these are matters outside the pleadings. See,
e.g., Fonte v. Bd. of Managers of Continental Towers Condo.,
848 F.2d 24, 25 (2d Cir. 1988). In any event, none of these
allegations the significance of which is difficult to discern
would cure the complaint's failure to state a claim under § 1985.
Langhorne suggests that the net result of including these
additional allegations is to assert that RHI had "knowledge that
it [was] placing temporary employees [i.e., Stark] at an entity
that provides administrative relief and remedies for its
permanent employees." Opp. Mem. at 7. This assertion, however,
does not cure the failure to allege a conspiracy under § 1985(3). Accordingly, Langhorne has failed to state a claim under §
C. The Prima Facie Tort Claim
In his Amended Complaint, Langhorne claims that the "acts of
[defendants] . . . constitute a prima facie tort," and have
caused him damages of at least $500,000. See Am. Compl. ¶¶
75-76. He further claims that the acts were committed with
"malice," and that this entitles him to punitive damages. See
id. ¶ 77.
The elements of a cause of action for prima facie tort
under New York law are: "(1) the intentional infliction of harm,
(2) which results in special damages, (3) without any excuse or
justification, (4) by an act or series of acts which would
otherwise be lawful[.]" Freihofer v. Hearst Corp.,
65 N.Y.2d 135, 142-43 (1985) (citing Curiano v. Suozzi, 63 N.Y.2d 113,
117 (1984)). "Special damages" is defined as a "specific and
measurable loss," Freihofer, at 143. See also Constant v.
Hallmark Cards, Inc., 568 N.Y.S.2d 441, 442 (2d Dep't 1991)
(requiring "a particularized statement of the reasonable,
identifiable and measurable special damages" and noting that
"[b]road and conclusory terms are simply insufficient to fulfill
this critical element"); Gifford v. Guilderland Lodge, No.
2480, 681 N.Y.S.2d 194, 199 (N.Y.Sup.Ct. 1998) (a "demand for
a round sum, such as $1 million, is insufficient") (citing
103 N.Y. Jur.2d Torts § 22, 425-427).
On the issue of intent, the plaintiff must establish that the
only motivation for the behavior of defendants was "disinterested
malevolence." Ruderman v. Stern, 2004 WL 3153217, at *16
(N.Y.Sup.Ct. 2004) (citing Avgush v. Town of Yorktown,
755 N.Y.S.2d 647 (2003)). This means that "`the genesis which will make a
lawful act unlawful must be a malicious one unmixed with any
other and exclusively directed to injury and damage of another.'"
Ruderman, at *16 (citing Burns Jackson Miller Summit & Spitzer v.
Lindner, 59 N.Y.2d 314, 333 (1983) (quoting Beardsley v.
Kilmer, 236 N.Y. 80, 90 (1923))). "Where there are other
motives, e.g., profit, self-interest, business advantage, there
is no recovery under tort prima facie[.]" Id.
Langhorne's complaint fails to state a claim for prima
facie tort because he sets forth no factual allegations that
RHI as opposed to the Port Authority or Stark engaged in the
intentional infliction of harm. As already described, the
complaint is virtually devoid of factual allegations regarding
RHI's conduct. The only allegation regarding RHI is that it is
the firm that placed Stark in his position at the Port Authority
and that Stark was RHI's employee. See Am. Compl. ¶ 24. There
is no allegation that the corporate entity RHI had any contact
whatsoever with Langhorne or knew of his existence, other than by
virtue of Langhorne's contact with Stark. The allegations
regarding Stark do not save the complaint, as Stark is alleged to
be merely a temporary worker supplied by RHI, Am. Compl. ¶ 24,
and Stark's interactions with Langhorne are alleged to have
occurred on behalf of the Port Authority, see id., ¶¶ 24-26,
28-29. Thus, Langhorne's complaint does not allege that RHI
intentionally inflicted any harm upon him and the claim of
prima facie tort must fail.
D. The NYSHRL and NYCHRL Claims
Langhorne alleges employment discrimination and retaliation by
RHI under N.Y. Exec. Law § 296 ("NYSHRL") and N.Y.C. Admin. Code
§ 8-107 ("NYCHRL"). See Am. Compl. ¶¶ 78-84, 85-90, 91-99,
100-08. These statutes permit a suit against an "employer" or
against an "employment agency." See N.Y. Exec. Law § 296(1)(a),
(b) and (e); N.Y.C. Admin. Code § 8-107(1)(a), (b). But, as
already noted, the complaint is devoid of factual allegations
reflecting that RHI was Langhorne's "employer." See generally
Sabol v. Cable & Wireless PLC, 361 F. Supp. 2d 205, 210 (S.D.N.Y. 2005) (key consideration to determining
whether defendant is an "employer" under the NYSHRL is whether
the defendant "exercised control over the employee's conduct and
the incidents of his employment"); accord Goyette v. DCA
Adver. Inc., 830 F. Supp. 737, 746 (S.D.N.Y. 1993); Germakian
v. Kenny Int'l Corp., 543 N.Y.S.2d 66, 67 (1st Dep't 1989).
Indeed, Langhorne specifically alleges that he was the Port
Authority's not RHI's employee. See Am. Compl. ¶ 4.
The NYCHRL permits suits not only against employers but also
their "agent[s]." See N.Y.C. Admin. Code § 8-107(1)(a). This
addition is of no help to Langhorne, however, as he does not
allege that RHI acted as an agent of the Port Authority with
respect to the acts of discrimination alleged in the complaint.
Rather, the only facts alleged with respect to that agency
relationship are that RHI was the employment agency that hired
Stark and placed him at the Port Authority. See Am. Compl. ¶
Both statutes permit suit against an "employment agency." But
this provision too is of no assistance to Langhorne because such
suits are permitted only for discrimination by an employment
agency in "acting upon applications for its services or in
referring an applicant or applicants . . . to an employer or
employers." N.Y. Exec. Law § 296(1)(b); N.Y.C. Admin. Code §
8-107(1)(b). There is no allegation that RHI discriminated
against Langhorne in either of these respects.
Accordingly, Langhorne's claims under the NYSHRL and NYCHRL
must be dismissed.
E. The Tortious Interference With Contract Claim
Under New York law, there are four elements to a claim for
tortious interference with contractual relations: "(1) the
existence of a contract between plaintiff and a third party; (2) defendant's knowledge of the contract; (3) defendant's
intentional inducement of the third party to breach or otherwise
render performance impossible; and (4) damages to plaintiff[.]"
Kronos, Inc. v. AVX Corp., 81 N.Y.2d 90, 94 (1993); accord
G.K.A. Beverage Corp. v. Honickman, 55 F.3d 762, 767 (2d Cir.
1995), cert. denied, 516 U.S. 944 (1995).
This claim fails for essentially the same reason as the others:
the absence of factual allegations in the complaint that RHI as
opposed to Stark did anything at all with respect to
Langhorne's employment at the Port Authority, let alone that RHI
"intentional[ly] induce[d]" the Port Authority to breach its
contract with plaintiff or that it had "knowledge of the
The specific act alleged to have constituted the tortious
interference was that "Robert Half and its employee procured the
discharge by making false statements against plaintiff and
committing fraud by tampering and altering plaintiff's time
sheets." Am. Compl. ¶ 111. However, the complaint elsewhere
alleges that Stark not RHI altered the time sheets and thus
committed the acts "used by defendants in order to terminate
plaintiff." Id. ¶ 34. Simply put, there are no factual
allegations supporting the claim that RHI, as opposed to Stark,
procured Langhorne's discharge. And, as already discussed, Stark
acted on behalf of the Port Authority with respect to his
interactions with Langhorne described in the complaint, not on
behalf of RHI.
Because Langhorne has failed to allege all the elements of the
tortious interference with contract claim with respect to RHI, it
should be dismissed. Conclusion
For the foregoing reasons, RHI's motion to dismiss the
complaint (Docket #22) should be granted.
PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND
Pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal
Rules of Civil Procedure, the parties have ten (10) days from
service of this Report and Recommendation to serve and file any
objections. See also Fed.R.Civ.P. 6(a), (e). Such
objections (and any responses to objections) shall be filed with
the Clerk of the Court, with copies sent to the Honorable Richard
M. Berman, 40 Centre Street, New York, New York 10007, and to the
undersigned at the same address. Any request for an extension of
time to file objections must be directed to Judge Berman. If a
party fails to file timely objections, that party will not be
permitted to raise any objections to this Report and
Recommendation on appeal. See Thomas v. Arn, 474 U.S. 140
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