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Pasqualini v. Mortgageit

July 27, 2007

CORRINE B. PASQUALINI, PLAINTIFF,
v.
MORTGAGEIT, INC. D/B/A IPI SKYSCRAPER MORTGAGE, MARK PAPPAS, RICHARD SCHULMAN, CHERYL COHEN AND PATRICIA GORMAN, DEFENDANTS.



The opinion of the court was delivered by: Conner, Senior D.J.

OPINION AND ORDER

Plaintiff Corinne Pasqualini brings this sexual harassment and hostile working environment action against defendants MortgageIT, Inc. d/b/a IPI Skyscraper Mortgage, Mark Pappas, Richard Schulman, Cheryl Cohen and Patricia Gorman. Plaintiff's eighteen count Second Amended Complaint alleges a litany of claims arising under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e, et seq. ("Title VII"), Article 15 of the New York Human Rights Law, N.Y. EXEC. LAW §§ 296, et seq. ("NYHRL") and New York common law, including: (1) creation of a hostile working environment in violation of Title VII against MortgageIT, Schulman, Pappas and Cohen; (2) creation of a hostile working environment in violation of the NYHRL against MortgageIT, Schulman, Pappas and Cohen; (3) quid pro quo sexual harassment against MortgageIT, Schulman, Pappas and Cohen in violation of Title VII; (4) quid pro quo sexual harassment against MortgageIT, Schulman, Pappas and Cohen in violation of the NYHRL; (5) unlawful retaliatory termination in violation of Title VII against MortgageIT, Pappas and Cohen; (6) grossly negligent retention against MortgageIT, Pappas and Cohen; (7) grossly negligent hiring against MortgageIT, Pappas and Cohen; (8) grossly negligent supervision against MortgageIT, Pappas and Cohen; (9) intentional infliction of emotional distress against MortgageIT, Schulman, Pappas and Cohen; (10) negligent infliction of emotional distress against MortgageIT, Schulman, Pappas and Cohen; (11) wrongful termination in violation of the NYHRL against MortgageIT, Pappas and Cohen; (12) "Retaliatory Termination and Defamation Through Conspiracy" against all defendants; (13) intentional interference with prospective business advantage against MortgageIT, Pappas, Cohen and Gorman; (14) defamation per se against all defendants; (15) slander per se against MortgageIT, Schulman, Pappas and Cohen; (16) libel per se against MortgageIT and Gorman; (17) battery against MortgageIT, Schulman, Pappas and Cohen; and (18) assault against MortgageIT, Schulman, Pappas and Cohen.

Defendants now move pursuant to FED. R. CIV. P. 12(b)(6) to dismiss plaintiff's: (1) Title VII claims against the individual defendants, contending that Title VII does not permit claims against individual agents of a plaintiff's employer; (2) claims sounding in negligent hiring, supervision, retention and infliction of emotional distress, contending that they are barred by the exclusivity provision of New York Workers' Compensation Law, N.Y. WORKERS' COMP. LAW§ 29(6); (3) intentional infliction of emotional distress claims insofar as they are brought against MortgageIT, Pappas and Cohen, contending that they are both barred by the statute of limitations and fail to state a claim; (4) defamation per se, slander per se and libel per se claims, contending that they are barred by the statute of limitations and/or not pleaded with the required degree of particularity; (5) "Retaliatory Termination and Defamation Through Conspiracy"claims, contending that they are not actionable under New York law; (6) intentional interference with prospective economic advantage claim against Gorman, contending that, as to her, it is a disguised defamation claim and therefore barred by the applicable statute of limitations; and (7) assault and battery claims against MortgageIT, Pappas and Cohen, contending that they are barred by the statute of limitations and fail to state a claim upon which relief may be granted. For the following reasons, defendants' motion is granted in part and denied in part.

BACKGROUND

On a motion to dismiss pursuant to Rule 12(b)(6), the court must accept all of the well pleaded facts as true and consider those facts in the light most favorable to the plaintiff. See Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993); In re AES Corp. Sec. Litig., 825 F. Supp. 578, 583 (S.D.N.Y. 1993) (Conner, J.). Accordingly, the following statement of facts is based on the allegations in plaintiff's Second Amended Complaint.

Plaintiff was employed by MortgageIT as the Underwriting and Operations Manager of MortgageIT's White Plains office. (2d Am. Complt. ¶ 23.) Schulman was employed by MortgageIT as a Senior Loan Officer in the same office, and was regarded as a major rainmaker. (Id. ¶ 24.) On June 13, 2003, plaintiff witnessed Schulman verbally abuse Cohen, who was then working as Branch Manager. (Id. ¶ 25.) Plaintiff attempted to leave the room, and prompted Cohen to follow, but Schulman berated plaintiff and pressed her against a couch, preventing her from moving. (Id. ¶ 26.) While in the presence of Cohen, Schulman placed his hand on plaintiff's breast, struck her in the face and called her unspecified-ethnically derogatory remarks until he was forcibly removed from the room by two other MortgageIT employees. (Id. ¶ 29.)

Despite the offensiveness of Schulman's actions, Cohen refused to take any disciplinary action against him, prompting plaintiff to speak with Pappas, one of MortgageIT's principal owners and a person with operational control over many of MortgageIT's day-to-day functions. (Id. ¶¶ 30, 32.) Pappas stated that he was aware of Schulman's penchant for violence, as evidenced by his history of outbursts and sexual harassment, but declined to discharge Schulman, noting that he was the company's top earner. (Id. ¶ 33.) Cohen also expressed knowledge of Schulman's violent tendencies, but stated that she was close friends with him, and noted that the company would never discharge such a valuable employee. (Id. ¶ 34.)

Following the initial incident, Schulman's harassment of plaintiff intensified. Specifically, Schulman repeatedly offered to give plaintiff money or valuables if she would engage in sexual acts with him, often propositioning her in the presence of co-workers. (Id. ¶ 42.) On other occasions, Schulman spit on plaintiff, pushed her into walls, thrust his hand in her face and touched her in an "inappropriate sexual manner." (Id. ¶ 44.) Although plaintiff complained to her superiors, including Pappas and Cohen, they either ignored her complaints or adversely modified her job duties and allowed Schulman's offensive conduct to continue.*fn1 On one occasion, Schulman thrust his hand down plaintiff's pants "grabbing and squeezing her bare buttocks."*fn2 (Id. ¶ 54.) Unable to obtain relief through corporate channels, plaintiff reported Schulman's conduct to police, who arrested him. (Id. ¶ 58-59.) Schulman ultimately pleaded guilty to the crime of Harassment in the Second Degree in violation of N.Y. PENAL LAW § 240.26 for his actions, and a permanent Order of Protection was entered. (Id. ¶ 59, Ex. J.)

Although plaintiff's performance evaluations had theretofore been consistently excellent (id. ¶¶ 68-86, Ex. L), on June 7, 2004, she was given a "Warning Notice" for "poor performance" less than one week after filing the criminal complaint against Schulman. (Id. ¶ 97, Ex. P.) Plaintiff's employment with MortgageIT was terminated on June 14, 2004. (Id. ¶¶ 66, 99.) Cohen and Pappas each personally told plaintiff that she would "pay for what [she] did to [Schulman]," and attempted to ruin her reputation in the mortgage industry. (Id. ¶¶ 57, 67, 89, 92.) That same day, Gorman, a Loan Officer employed by MortgageIT, circulated an e-mail regarding plaintiff's termination. (Id. ¶ 109.) In it, Gorman described plaintiff as disloyal and incompetent. (Id.) The e-mail was distributed to numerous individuals, including many not employed by MortgageIT. (Id. ¶ 110.)

Following the termination of her position at MortgageIT, plaintiff attempted to secure new employment, but was unable to do so because of negative statements made about her by defendants.*fn3 This litigation ensued.

On November 17, 2005, plaintiff filed a three-count Complaint, sounding in sexual harassment and retaliatory termination in violation of Title VII and common law defamation. The Complaint named only MortgageIT as a defendant. Plaintiff amended her Complaint on February 27, 2006 to remove her defamation claim. On September 15, 2006, plaintiff retained her present counsel, who filed the Second Amended Complaint on October 24, 2006. As detailed previously, the Second Amended Complaint added several new defendants, as well as numerous additional claims, most of which defendants move to dismiss. We now turn to the merits of defendants' motion.*fn4

DISCUSSION

I. Legal Standard

As previously stated, when ruling on a motion to dismiss pursuant to Rule 12(b)(6), the Court must accept all of the well-pleaded facts as true and consider those facts in the light most favorable to the non-moving party. See Scheuer v. Rhodes, 416 U.S. 232, 236 (1974); Hertz Corp., 1 F.3d at 125; In re AES Corp., 825 F. Supp. at 583. On such a motion, the issue is "whether the claimant is entitled to offer evidence to support the claims." Scheuer, 416 U.S. at 236. A complaint should not be dismissed for failure to state a claim "'unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief.'" Padavan v. United States, 82 F.3d 23, 26 (2d Cir. 1996) (quoting Hughes v. Rowe, 449 U.S. 5, 10 (1980)). However, allegations that are so conclusory that they ...


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