Davidson v. Goodwill Industries of Greater New York and Northern New Jersey, Inc. et al
Filing
21
ORDER granting 20 Motion to Dismiss - For the reasons set forth in the ATTACHED WRITTEN MEMORANDUM AND ORDER, defendants' motion to dismiss is granted in its entirety. Accordingly, this action is DISMISSED, with prejudice. The Clerk of the Court is directed to enter judgment in favor of defendants and to close this case. SO ORDERED by Judge Dora Lizette Irizarry on 3/28/2012. (Irizarry, Dora)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------------------------- x
IRA DAVISON, JR.,
:
:
Plaintiff,
:
:
-against:
:
GOODWILL INDUSTRIES OF GREATER
:
NEW YORK AND NORTHERN NEW
:
JERSEY, INC., GALINA SHUB, LINDA
:
TURNER and ANTHONY NAPOLI,
:
:
Defendants.
:
---------------------------------------------------------- x
DORA L. IRIZARRY, U.S. District Judge:
MEMORANDUM AND ORDER
10-CV-2180 (DLI)(RLM)
Plaintiff Ira Davison, Jr. (“Plaintiff”) commenced this action against his
employer, Goodwill Industries of Greater New York and Northern New Jersey, Inc.
(“Goodwill”) and three of its employees, Galina Shub (“Shub”), Linda Turner (“Turner”), and
Anthony Napoli (“Napoli,” collectively “Defendants”), asserting claims of defamation and
intentional infliction of emotional distress (“IIED”) and imputing vicarious liability to Goodwill.
(Dkt. Entry No. 13, Amended Complaint (“Am. Compl.”).) On May 23, 2011, Defendants
moved, pursuant to Federal Rule of Civil Procedure 12(b)(6), to dismiss the Amended Complaint
for failure to state a claim. (Dkt. Entry No. 20, Mot. to Dismiss.) Plaintiff, who is represented
by counsel, has failed to oppose the motion in the time since it was filed. Accordingly, the
motion is deemed unopposed. For the reasons set forth below, Defendants’ motion is granted.
BACKGROUND
I.
Plaintiff’s Employment History and Suspension
In August 2003, Plaintiff was hired through Goodwill’s Back-to-Work Program as a
workforce development instructor at Goodwill’s offices in Queens, New York. (Am. Compl. ¶
13.) Plaintiff was continuously employed with Goodwill until January 2010, during which time
he maintained a clean disciplinary record. (Id. ¶¶ 14–15.) On January 4, 2010, Shub, Vice
President of Goodwill’s Back-to-Work Program, informed Plaintiff that he was suspended
pending investigation of a complaint that a client had filed against him (the “Client Complaint”)
for alleged sexually inappropriate behavior. (Id. ¶¶ 9, 15.)
Plaintiff’s suspension lasted from January 4, 2010 until February 2, 2010, during which
time Plaintiff communicated with Shub and Napoli, Goodwill’s Senior Vice President for
Human Resources, to deny that he had engaged in any inappropriate behavior and to demand that
he be reinstated. (Id. ¶¶ 11, 15, 18–24, 31.) He also requested a copy of the Client Complaint,
which Shub and Napoli declined to provide. (Id. ¶¶ 18, 21.) On January 15, 2010, Plaintiff was
notified in a letter from Napoli that his employment at Goodwill had been terminated following
an investigation of the Client Complaint. (Id. ¶ 20.) On January 26, 2010, Plaintiff initiated a
meeting with Napoli to assert his innocence and voice his suspicion that no investigation had
actually taken place. (Id. ¶ 21–22.)
On February 1, 2010, Plaintiff received a letter from Napoli. (Id. ¶ 25.) It stated that
Plaintiff’s termination was being revoked and his employment at Goodwill reinstated, because
there was no evidence to corroborate the Client Complaint. (Id. ¶ 26.) The letter also informed
Plaintiff that the incident alleged in the Client Complaint and the attending investigation were
confidential; Plaintiff was directed not to discuss the matter with co-workers, and his supervisors
and managers were likewise directed to keep the matter confidential. (Id. ¶¶ 27–28.) On
February 2, 2010, Plaintiff returned to work at Goodwill. (Id. ¶ 31.)
II.
The Alleged Defamation
Plaintiff alleges that, during his suspension, at least three co-workers informed him of
2
rumors spreading around the office that he had engaged in inappropriate sexual acts with a client
in the office, and had forcibly cornered a client in the office to proposition her for a date. (Am.
Compl. ¶ 29.)
In a telephone conference with Napoli following his termination, Plaintiff
complained about the proliferation of these rumors. (Id. ¶ 24.)
When Plaintiff returned to work, he allegedly encountered the rumors firsthand. He
overheard a security officer, as well as an office manager, saying that Plaintiff had requested
sexual favors from a client while in the office, and that Plaintiff had a history of sexually
harassing female clients. (Id. ¶¶ 32–34.) Dismayed by these rumors, Plaintiff met with Shub,
who allegedly told him that no investigation had taken place prior to his termination. (Id. ¶¶ 33–
34.) Plaintiff, to no avail, again requested that Shub furnish him a copy of the Client Complaint.
(Id. ¶¶ 34–35.) He then demanded that Shub explain why rumors were spreading throughout the
office. Plaintiff told Shub the rumors could not have started unless Shub divulged to employees
confidential details about the Client Complaint or other allegations of sexual misconduct against
him. (Id. ¶ 34.) Shub neither confirmed nor denied that she had divulged any such confidential
information. (Id. ¶ 36.)
On May 12, 2010, Plaintiff commenced this action against Defendants, asserting three
claims: (1) a defamation claim against Shub for maliciously leaking out baseless rumors to office
staff that Plaintiff had engaged in various forms of sexually inappropriate behavior towards
female clients while at Goodwill (id. ¶¶ 39–53); (2) an IIED claim against Shub, stemming from
the same alleged rumors (id. ¶¶ 54–59); and (3) a claim imputing vicarious liability for Shub’s
actions to Goodwill, both because Shub was acting within the scope of her employment when
making the alleged defamatory statements, and because Napoli and Turner ratified Shub’s
actions. (Id. ¶¶ 60-70.)
3
DISCUSSION
I. Legal Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure states that a defendant may move,
in lieu of an answer, for dismissal of a complaint for “failure to state a claim upon which relief
can be granted.” FED. R. CIV. P. 12(b)(6). To determine whether dismissal is appropriate, “a
court must accept as true all [factual] allegations contained in a complaint” but need not accept
“legal conclusions.” Ashcroft v. Iqbal, 556 U.S. 662, 129 S. Ct. 1937, 1949 (2009). Thus, a
court need not accord “[l]egal conclusions, deductions or opinions couched as factual allegations
... a presumption of truthfulness.” In re NYSE Specialists Securities Litigation, 503 F. 3d 89, 95
(2d Cir. 2007) (citation omitted). For this reason, “[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory statements, do not suffice” to insulate a claim
against dismissal. Iqbal, 129 S.Ct. at 1949. Moreover, “[t]o survive a motion to dismiss, a
complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is
plausible on its face.’ ” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)).
“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of
misconduct, the complaint . . . has not shown that the pleader is entitled to relief.” Id. at 1950
(internal quotation marks and citation omitted).
II. Analysis
A. Defamation
To maintain an action for defamation under New York law, a plaintiff must establish:
“(1) a false statement about the plaintiff; (2) published to a third party without authorization or
privilege; (3) through fault amounting to at least negligence on [the] part of the publisher; (4)
that either constitutes defamation per se or caused special damages.” Ahmed v. Bank of Am.,
4
2010 WL 3824168, at *4 (E.D.N.Y. Sept. 24, 2010) (quoting Thai v. Cayre Grp., Ltd., 726 F.
Supp. 2d 323, 329 (S.D.N.Y. 2010) (internal quotation marks and citation omitted)). “While a
defamation claim need not be pled in haec verba, a complaint alleging defamation ‘is only
sufficient if it adequately identifies the purported communication, and an indication of who made
the statement, when it was made, and to whom it was communicated.’ ” Id. (quoting Camp
Summit of Summitville, Inc. v. Visinski, 2007 WL 1152894, at *10 (S.D.N.Y. Apr. 16, 2007)
(internal quotation marks and citation omitted)). The central concern is that a defendant is on
notice as to the communications complained of so that she is able to defend herself. See Kelly v.
Schmidberger, 806 F. 2d 44, 46 (2d Cir. 1986). Thus, a claimant’s mere conclusory statement
that he or she was disparaged by false statements is insufficient to state a defamation claim.
Ahmed, 2010 WL 3824168, at *4 (citing Reilly v. Natwest Markets Grp., Inc., 181 F. 3d 253, 271
(2d Cir. 1999)). Here, Plaintiff’s complaint is principally premised on conclusory statements and
deductions; moreover, it lacks the specificity required to state a defamation claim. Accordingly,
the claim is dismissed.
Plaintiff alleges in a conclusory manner that Shub defamed him by divulging to other
Goodwill employees details of Plaintiff’s alleged sexual misconduct as documented in the Client
Complaint. (See Am. Compl. ¶¶ 34, 41–42, 49–50.) However, the complaint fails to plead any
facts identifying Shub as the source of the alleged defamation or that Plaintiff’s two co-workers,
the security officer and office manager, were the individuals to whom Shub allegedly
communicated the defamatory information. Moreover, the complaint does not allege the time or
manner in which the alleged statements were made.
Instead, Plaintiff’s defamation claim is largely premised on conclusory statements and
deductions, which this court need not credit as true when evaluating a motion to dismiss. See In
5
re NYSE Specialists Securities Litigation, 503 F. 3d at 95. Here, Plaintiff merely alleges that he
overheard, or was informed of, rumors about his alleged sexual misconduct at the office. (See
Am. Compl. ¶¶ 29, 32, 43-45.) From this, Plaintiff deduces that the Client Complaint must have
been the basis for the rumors and that Shub must have been the source of the rumors because she
was privy to the allegations against Plaintiff in the Client Complaint. (See id. ¶¶ 34, 40–42, 49.)
Similarly, Plaintiff baldy concludes that Shub must have made the defamatory statements to the
security officer and office manager because Plaintiff overheard the two discussing rumors of
Plaintiff’s alleged sexual misconduct. (See id. ¶¶ 32, 42.)
Thus, Plaintiff identifies Shub’s alleged defamatory statements only through deduction,
unsubstantiated by any specific details about when, where, or in what manner the statements
were made. As such, Plaintiff’s complaint does not give Shub the sufficient notice needed to
defend herself and the complaint otherwise lacks the specificity required to state a defamation
claim. See Leung v. New York Univ., 2010 WL 1372541, at *8 (S.D.N.Y. Mar. 29, 2010)
(dismissing defamation claims where complaint lacked specificity as to the content of the
defamatory statements and to the time, place, and manner in which they were uttered); see also
Dellefave v. Access Temporaries, Inc., 2001 WL 25745, at *3 (S.D.N.Y. Jan. 10, 2001) (citations
omitted) (“[D]eductions included in the pleadings are insufficient to state a claim” as are
“pleadings which require deductions in order to state all the elements”); Meyers v. Amerada Hess
Corp., 647 F. Supp. 62, 66–67 (S.D.N.Y. 1986) (dismissing allegations of defamation based on
Plaintiff’s assertion that rumors “necessarily had to have been” caused by dissemination of
defamatory statements). Accordingly, Plaintiff’s defamation claim is dismissed.
B. Intentional Infliction of Emotional Distress
To maintain an action for IIED under New York law, a plaintiff must show: “(1) extreme
6
and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection
between the conduct and the injury, and (4) severe emotional distress.” House v. Wackenhut
Srvs., Inc., 2011 WL 6326100, at *4 (S.D.N.Y. Dec. 16, 2011) (quoting Bender v. City of New
York, 78 F.3d 787, 790 (2d Cir. 1996) (citation omitted)). As a cause of action, it is “extremely
disfavored . . . [and] routinely dismissed on pre-answer motion.” Id. (quoting Schaer v. City of
New York, 2011 WL 1239836, at *7 n. 4 (S.D.N.Y. Mar. 25, 2011). “Defamatory statements are
generally not sufficiently extreme and outrageous to support an IIED claim.” Carlson v. Geneva
City Sch. Dist., 679 F. Supp. 2d 355, 372 (W.D.N.Y. 2010).
Here, Plaintiff bases his IIED claim against Shub on her alleged defamatory statements;
however, the court has already concluded Plaintiff failed to plead facts establishing Shub as the
source of those alleged statements. See supra, Part II.A. Regardless, assuming, arguendo,
Plaintiff pled facts sufficient to identify Shub as the source of the alleged rumors, Plaintiff still
has failed to state an IIED claim because he has failed to allege extreme and outrageous conduct.
Extreme and outrageous conduct occurs 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 community.” Howell v. New York Post Co., 81
N.Y.2d 115, 122 (1993) (internal quotation marks and citations omitted).
Shub’s alleged
communication of the details of the Client Complaint or other rumors of Plaintiff’s sexual
misconduct falls well short of meeting this high standard. See House, 2011 WL 6326100, at *4–
5; Carlson, 679 F. Supp. 2d at 361–62, 372–73 (dismissing IIED claims where plaintiff alleged
that defendants’ defamatory statements “caused others to believe that she had sold or provided
drugs or alcohol to students and inappropriately touched or had sex with underage students”);
James v. DeGrandis, 138 F. Supp. 2d 402, 421 (W.D.N.Y. 2001) (“Even a false charge of sexual
7
harassment does not rise to the level of outrage required to recover on an intentional infliction of
emotional distress claim under New York law”).
Furthermore, Plaintiff’s bare assertion that Shub’s conduct was “extreme and outrageous”
and “utterly reprehensible,” (Am. Compl. ¶¶ 55, 58), is a “conclusory allegation which the
[c]ourt is not required to credit on a motion to dismiss.” House, 2011 WL 6326100, at *5 (citing
Iqbal, 129 S. Ct. at 1949–50). Accordingly, Plaintiff’s IIED claim is dismissed.
C. Vicarious Liability
Plaintiff asserts that Goodwill, Shub’s employer, should be held vicariously liable for
Shub’s alleged defamatory statements, both because Shub was acting with “authority arising
from her agency” at Goodwill when making those statements, and because Napoli and Turner
“ratified” Shub’s conduct. (See Am. Compl. ¶ 66.) However, given that the underlying claims
against Shub have been dismissed, there can be no imposition of vicarious liability against
Shub’s employer. See Shapiro v. Kronfeld, 2004 WL 2698889, at *24 (S.D.N.Y. Nov. 24, 2004)
(dismissing claims premised upon a theory of respondeat superior because “there can be no
imposition of vicarious liability in the absence of underlying liability”); see also Karaduman v.
Newsday, Inc., 51 N.Y.2d 531, 545–46, 435 N.Y.S.2d 556 (N.Y. 1980); Wende C. v. United
Methodist Church, N.Y. W. Area, 6 A.D.3d 1047, 1052 (4th Dep’t 2004) (citing cases).
Accordingly, Plaintiff’s claim imputing vicarious liability to Goodwill is dismissed.
8
CONCLUSION
For the foregoing reasons, Defendants’ motion to dismiss is granted. There being no
indication that Plaintiff would be able to cure the defects in the complaint, the complaint is
dismissed in its entirety with prejudice. See Ahmed, 2010 WL 3824168, at *5; St. Jules v. United
Parcel Serv., Inc., 2010 WL 1268071 (E.D.N.Y. Mar. 31, 2010) (granting unopposed motions to
dismiss and dismissing complaint with no leave to amend).
SO ORDERED.
Dated: Brooklyn, New York
March 28, 2012
_______________/s/_____________
DORA L. IRIZARRY
United States District Judge
9
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?