Hopkins v. Hazmat Environmental Group, Inc. et al
DECISION AND ORDER: Defendants' motion to dismiss 11 is GRANTED IN PART AND DENIED IN PART. The motion is GRANTED with respect to Plaintiff's tenth cause of action for intentional infliction of emotional distress, but DENIED with respect to Plaintiff's eleventh cause of action for fraudulent inducement. SO ORDERED. Signed by Hon. Frank P. Geraci, Jr. on 07/28/2017. (ZS)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
Case # 16-CV-841-FPG
DECISION AND ORDER
HOPKINS ENVIRONMENTAL GROUP, INC.,
RICK EDWARDS, JAMES TRUSKEY, TIM
WESTON, SHOP MANAGER MARK and
Plaintiff Jean Hopkins (“Plaintiff”) brings this action to remedy alleged discrimination by
her former employer Hazmat Environmental Group, Inc. (“Hazmat”) and several Hazmat
employees (collectively, “Defendants”). ECF No. 1. In her complaint, Plaintiff asserts eleven
causes of action and seeks relief under both federal and state law. Id.
Pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, Defendants now move
to dismiss Plaintiff’s tenth and eleventh causes of action—for intentional infliction of emotional
distress and fraudulent inducement, respectively. ECF No. 11.
Defendants’ motion is granted in part and denied in part. With respect to Plaintiff’s tenth
cause of action, Defendants’ motion is granted because Plaintiff concedes that her intentional
infliction of emotional distress claim is barred by the applicable statute of limitations. See ECF
No. 13, at n.1. With respect to Plaintiff’s eleventh cause of action, Defendants’ motion is denied
because Plaintiff has adequately stated a claim for fraudulent inducement under New York
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides that a party may move to
dismiss a complaint for “failure to state a claim upon which relief can be granted.” Fed. R. Civ.
P. 12(b)(6). In reviewing a motion to dismiss under Rule 12(b)(6), the court “must accept as true
all of the factual allegations contained in the complaint,” Bell Atl. Corp. v. Twombly, 550 U.S.
544, 572 (2007), and “draw all reasonable inferences in Plaintiff’s favor.” Faber v. Metro. Life
Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011). To 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.”
Twombly, 550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the misconduct
alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The application of this standard is “a
context-specific task that requires the reviewing court to draw on its judicial experience and
common sense.” Id. at 679.
To state a claim for fraudulent inducement under New York common law, a plaintiff must
plausibly allege that (1) the defendant made a material misrepresentation; (2) the defendant knew
the representation was false; (3) the defendant intended plaintiff to rely on it; (4) plaintiff did
reasonably rely on the defendant’s misrepresentation; and (5) plaintiff was injured as a result.
Braddock v. Braddock, 871 N.Y.S.2d 68, 70 (1st Dep’t 2009) (citing Gaidon v. Guardian Life Ins.
Co. of Am., 94 N.Y.2d 330, 348 (1999)); Amida Capital Mgmt. II, LLC v. Cerberus Capital Mgmt.,
L.P., 669 F. Supp. 2d 430, 444 (S.D.N.Y. 2009).
Further, to comply with the heightened requirements for fraud claims under Fed. R. Civ.
P. 9(b), a complaint must “(1) specify the statements that the plaintiff contends were fraudulent,
(2) identify the speaker, (3) state where and when the statements were made, and (4) explain why
the statements were fraudulent.” Lerner v. Fleet Bank, N.A., 459 F.3d 273, 290 (2d Cir. 2006)
(quoting Mills v. Polar Molecular Corp., 12 F.3d 1170, 1175 (2d Cir. 1993)).
Relevant Allegations in Plaintiff’s Complaint
Hazmat, a corporation headquartered in Buffalo, New York, is in the business of
transporting hazardous and nonhazardous waste. Id. ¶ 5. Depending on the length of a driver’s
trip, Hazmat pays its drivers either by the hour or by mileage. Id. ¶ 20. If a trip is over 100 miles,
it is considered a “mileage run” and the driver is paid $0.49 per mile plus $35 for loading and $35
for unloading. Id. ¶ 21. If a trip is less than 100 miles, Hazmat pays the driver $17.25 per hour
with no loading or unloading payment. Id.¶ 22. 1
In December 2011, Plaintiff applied for employment with Hazmat. Id. ¶ 13. At the time,
Plaintiff was self-employed as a truck driver but was seeking a higher salary without the financial
risks of self-employment. Id. ¶¶ 12-13. Plaintiff is female, transgender, and older than almost all
of the other truck drivers working for Hazmat in Buffalo. Id. ¶¶ 7-9, 25.
Plaintiff interviewed with Defendant Tim Weston, one of Hazmat’s Operations Managers.
Id. ¶ 14. Weston falsely told Plaintiff that she was interviewing for a dedicated “mileage run”
assignment from the Buffalo area to Ashtabula, Ohio. Id. ¶¶ 14, 198. Weston also told Plaintiff
that Hazmat had a contract for the Ashtabula run that required six drivers and that Hazmat would
pay her $0.49 per mile for 135 miles plus $35 load pay and $35 unload pay, for at least five to six
days per week. Id. ¶ 15.
Plaintiff alleges that Weston knew the representation he made during her interview—
namely, that Plaintiff was being hired to do the Ashtabula run—was false, and that he made that
false representation in order to convince Plaintiff to accept the job. Id. ¶¶ 199, 201. Specifically,
On June 29, 2013, Hazmat increased the mileage and hourly payments to $0.50 per mile and $19.25 per hour.
Id. ¶ 72.
Plaintiff alleges that Hazmat attracted and retained drivers by promising them lucrative mileage
runs such as the Ashtabula run. Id. ¶ 200. Of course, not every Hazmat driver can be assigned to
those runs. Plaintiff alleges that her status as an older, female, transgender person meant (in
Weston’s mind) that he could entice her to drive for Hazmat with the promise of lucrative job
assignments without actually having to follow through. Id. ¶ 200-201.
In January 2012, Plaintiff accepted employment with Hazmat, and terminated her existing
business, “in reliance on Defendant Weston’s representations and assurance that she would be
assigned the Ashtabula run, and would be earning $1000 to $1200 2 per week.” Id. ¶¶ 18-19, 202.
However, when Plaintiff arrived at Hazmat and completed her training, she was not
assigned to do the Ashtabula run. Id. ¶ 32. Instead, Plaintiff was almost exclusively assigned to
the Hamilton steel mill run. Id. ¶¶ 34, 38. The Hamilton steel mill run is less desirable than the
Ashtabula run because it involves very dirty work and is only paid by the hour. Id. ¶¶ 29, 35.
Throughout her employment at Hazmat, Plaintiff was occasionally assigned the Ashtabula
run or another mileage run but most often was assigned runs that were dirtier, more physically
demanding, and less lucrative. Plaintiff alleges that she was given a greatly disproportionate share
of undesirable assignments (and subjected to other forms of mistreatment, which are not directly
relevant at this juncture) because of her female gender, her age, and her transgender status. Id. ¶
47. From 2012 to 2014, Plaintiff’s salary decreased even as Hazmat drivers received a $2 per hour
pay raise. Id. ¶ 73. 3 When she complained about her assignments, Hazmat dispatcher James
Truskey told her “that he was assigning the more desirable and better-paying jobs to cis-gender
It is unclear how Plaintiff arrived at these numbers. Given that Hazmat pays $0.49 per mile plus $35 load
pay and $35 unload pay for mileage runs, a 135-mile trip from Buffalo to Ashtabula would pay $136.15. That would
mean Plaintiff could earn $680.75 per week if she did the Ashtabula run five times, and $816.90 per week if she did
the Ashtabula run six times. Nevertheless, the precise pay calculation for the Ashtabula run is less relevant at this
stage of the litigation than the fact that Plaintiff was told she was being hired to do the Ashtabula run and the fact that
the Ashtabula run is a lucrative and desirable assignment.
Plaintiff earned $42,137 in 2012, $39,742 in 2013, and $35,600 in 2014. Id. Meanwhile, due to their
favorable assignments, younger and cis-male drivers typically earned $50,000 to $70,000 annually. Id. ¶ 78.
male drivers, younger drivers, and drivers with less seniority than Plaintiff because he did not
want the men to quit.” Id. ¶ 71.
On April 13, 2015, Hazmat’s Human Resources Manager sent Plaintiff a letter announcing
Plaintiff’s “separation” from the company, effective the next day, even though Plaintiff had not
resigned. Id. ¶ 142.
Defendants’ Motion to Dismiss
Defendants argue that Plaintiff fails to state a claim for fraudulent inducement for two
reasons. First, Defendants argue that Weston’s alleged promise that Plaintiff would be hired to do
mileage runs is merely a representation concerning future action and therefore not the type of
misrepresentation required to sustain a claim for fraudulent inducement. Second, Defendants
argue that any reliance on Weston’s promise would have been unreasonable as a matter of law
because Plaintiff was an at-will employee. 4 Both arguments fail.
The quintessential fraudulent misrepresentation is a false statement about a present fact
rather than a promissory statement about what is to be done in the future. See Sabo v. Delman, 3
N.Y.2d 155, 160 (1957) (citing Adams v. Clark, 239 N.Y. 403, 410 (1925)). However, it is wellestablished that a promise may constitute an actionable misrepresentation under New York law if
it is “made with a preconceived and undisclosed intention of not performing it.” Id.; Deerfield
Commc’ns Corp. v. Chesebrough-Ponds, Inc., 68 N.Y.2d 954, 956 (1986); Stewart v. Jackson &
Plaintiff characterizes Defendants’ motion as also raising an argument that Plaintiff failed to plead with the
particularity required by Fed. R. Civ. P. 9(b). ECF No. 13, at 1-2. But Defendant merely cites Rule 9(b)’s particularity
requirement. Osuji v. Fed. Nat'l Mortg. Ass’n, No. 16-CV-5018, 2017 WL 3017198, at *4 n.8 (E.D.N.Y. July 17,
2017) (“The Court need not consider arguments raised in a perfunctory manner, unaccompanied by some effort at
developed argumentation.”) (quoting Sunseri v. Proctor, 461 F. Supp. 2d 551, 573 (E.D. Mich. 2006)). Similarly, in
its reply brief, Defendant argues for the first time that Plaintiff has not alleged that Weston’s alleged representations
were false. Bowles v. New York City Transit Auth., No. 03-cv-3073, 2004 WL 548021, at *3 (S.D.N.Y. Mar. 18, 2004)
(“The Court need not consider arguments raised for the first time in reply memoranda.”).
Nash, 976 F.2d 86, 89 (2d Cir. 1992); Braddock, 871 N.Y.S.2d at 86-89; Laduzinski v. Alvarez &
Marsal Taxand LLC, 16 N.Y.S.3d 229, 231-32 (1st Dep’t 2015).
In Stewart, the defendant law firm allegedly recruited plaintiff, an environmental law
attorney, by falsely telling her that she would head the firm’s environmental law department.
Stewart, 976 F.2d at 89. Upon arriving at the firm, however, plaintiff was assigned to work
primarily on general litigation matters and the firm’s environmental case work never materialized.
Id. at 87. The Second Circuit held that the firm’s misrepresentation to plaintiff gave rise to a valid
claim of fraudulent inducement because the firm allegedly knew, at the time it made that
representation, that it did not intend to fulfill its promise. Id. at 89.
In Braddock, the defendant David Braddock allegedly told his cousin John that once John
raised the capital needed from an investor, John would be appointed to serve as the CFO and land
manager of David’s oil and gas exploration company and would be issued “founder’s shares”
giving him an equity interest in the company that was equal to David’s. Braddock, 871 N.Y.S.2d
at 71. The court held that John stated a claim for fraudulent inducement because John alleged that
David had no intention of fulfilling his promises at the time they were made. Id. at 72-73.
In Laduzinski, the plaintiff alleged that the Alvarez companies “knowingly and purposely
misrepresented the nature of the work plaintiff would be doing for [Alvarez] by telling him that he
would be managing the sizeable workload of the company rather than bringing in business, when
in fact [they] intended the opposite.” Laduzinski, 16 N.Y.S.3d at 231. Like in Stewart and
Braddock, the court in Laduzinski held defendants’ representations supported a claim for
fraudulent inducement. Id. at 232.
Here, Plaintiff alleges that Weston falsely told her during her interview that she would be
hired for a dedicated mileage run assignment from Buffalo to Ashtabula. ECF No. 1 ¶¶ 14, 198199. In fact, according to Plaintiff’s allegations, Hazmat hired Plaintiff with the intention of
assigning her to less desirable hourly runs—thereby allowing Hazmat to attract and retain other
drivers, particularly male drivers, by assigning those drivers to the lucrative mileage runs. Id. ¶
200. This assertion is bolstered by Plaintiff’s allegation that she was consistently relegated to
dirty, physically demanding, hourly runs during her time at Hazmat; by the way Plaintiff was
allegedly subjected to various forms of discrimination on the basis of her age, female gender, and
transgender status; and by Truskey’s alleged statement that he assigned the desirable runs to men
because he did not want them to quit. See Braddock, 871 N.Y.S.2d at 73 (“While an inference that
the promisor never intended to fulfill his promise should not be based solely upon the assertion
that the promise was not, in fact, fulfilled . . ., we must recognize that a present intention not to
fulfill a promise is generally inferred from surrounding circumstances, since people do not
ordinarily acknowledge that they are lying.”).
Although Weston’s representation that Plaintiff would be assigned to the Ashtabula
mileage run contains elements of both present fact and future promise, it is actionable because,
like in Stewart, Braddock, and Laduzinski, Plaintiff plausibly alleges that Weston and Hazmat had
no intention of actually hiring Plaintiff for that assignment. Further, the representation at issue
here is not merely a speculative promise about the future. Cf. Rehman v. State Univ. of New York
at Stony Brook, 596 F. Supp. 2d 643, 660 (E.D.N.Y. 2009) (finding that “purported assurances that
the plaintiff would be fast tracked for promotion and would have ample time to conduct research
are non-actionable future promises”). Rather, it is a concrete statement regarding the nature of the
job that Plaintiff was interviewing for. As a result of her reliance on that representation, Plaintiff
began suffering financial injury as soon as she received her first paycheck. Therefore, Defendants’
argument is unavailing.
B. Reasonable Reliance
Under New York law, the principle of at-will employment means that—absent a
constitutionally impermissible purpose, a statutory proscription, or an express limitation in the
individual employment contract—either the employer or the employee may terminate their
employment relationship “for any reason, or for no reason.” Smalley v. Dreyfus Corp., 10 N.Y.3d
55, 58 (2008) (quoting Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 305 (1983)).
Thus, an at-will employee who has been terminated cannot state a fraudulent inducement claim
“on the basis of having relied upon the employer’s promise not to terminate the contract . . ., or
upon any representations of future intentions as to the duration or security of [her] employment.”
Laduzinski, 16 N.Y.S.3d at 232.
At the same time, a person’s status as an at-will employee does not mean that reliance on
her employer’s false representations is always unreasonable under New York law. Where the
misrepresentation involves a concrete statement about the present rather than speculation about
the future, and where the employee alleges an injury that is separate and distinct from the
termination of her employment, that employee may state a valid claim for fraudulent inducement.
Laduzinski, 16 N.Y.S.3d at 232; Navaretta v. Grp. Health Inc., 595 N.Y.S.2d 839, 840 (3d Dep’t
1993); see also Stewart, 976 F.2d at 89 (holding that plaintiff, an at-will employee, stated a claim
for fraudulent inducement where here alleged injuries “commenced well before her termination
and were, in several important respects, unrelated to it”); Smalley, 10 N.Y.3d at 58 (finding Stewart
distinguishable because “plaintiffs alleged no injury separate and distinct from termination of their
at-will employment”). 5
Some decisions from the Second Department could be interpreted to hold that a person’s at-will employment
status is a complete bar to all claims of fraudulent inducement. See Marino v. Oakwood Care Ctr., 774 N.Y.S.2d 562,
563 (2d Dep’t 2004); Epifani v. Johnson, 882 N.Y.S.2d 234 (2d Dep’t 2009); Guido v. Orange Reg’l Med. Ctr., 958
N.Y.S.2d 195 (2d Dep’t 2013). This Court does not adopt that line of reasoning because it is inconsistent with the
majority of New York precedent, arguably inconsistent with the New York Court of Appeals’s holding in Smalley,
and unnecessarily extends the consequences of at-will employment beyond the justifications for that doctrine.
Here, Plaintiff’s fraudulent inducement claim does not center around her termination from
Hazmat. ECF No. 1 ¶¶ 198-20. Both the alleged misrepresentation (that Plaintiff was being hired
for the Ashtabula mileage run assignment) and Plaintiff’s alleged injuries (loss of income due to
her hourly run assignments) are separate and distinct from her ultimate termination. As explained
above, the representation at issue here was a concrete statement about the job Hazmat was hiring
Plaintiff to do and was not mere speculation about future expectations. Therefore, like in
Laduzinski, Navaretta, and Stewart, Plaintiff states a valid claim for fraudulent inducement under
New York law.
For the reasons stated below, Defendants’ motion to dismiss (ECF No. 11) is GRANTED
IN PART AND DENIED IN PART. The motion is GRANTED with respect to Plaintiff’s tenth
cause of action for intentional infliction of emotional distress, but DENIED with respect to
Plaintiff’s eleventh cause of action for fraudulent inducement.
IT IS SO ORDERED.
Dated: July 28, 2017
Rochester, New York
HON. FRANK P. GERACI, JR.
United States District Court
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