Discrimination, Sexual Harassment Allegations Did Not Make Out Claim For Intentional Infliction of Emotional Distress

In Padilla v. Sacks and Sacks, LLP, 2020 WL 5370799 (S.D.N.Y. Sept. 8, 2020), the court dismissed plaintiff’s claims of sexual harassment and discrimination on the basis of gender and sexual orientation, wrongful discharge, and intentional infliction of emotional distress. Plaintiff, a gay Hispanic woman, was employed by defendant as a paralegal.

After dismissing plaintiff’s claims under Title VII of the Civil Rights Act of 1964 on the ground that that statute does not impose individual liability, the court turned to plaintiff’s intentional infliction of emotional distress claim.

From the decision:

To state a claim for IIED under New York law, a plaintiff must adequately allege: (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. Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999) (citing Howell v. New York Post Co., 81 N.Y.2d 115, 121 (1993)). This standard is “rigorous, and difficult to satisfy.” Howell, 81 N.Y.2d at 122 (citations omitted). To form the basis of an IIED claim, conduct must be “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.”

Courts are generally loath to find that conduct involving discrimination or harassment in the course of employment is sufficient for a claim of IIED. “Acts which merely constitute harassment, disrespectful or disparate treatment, a hostile environment, humiliating criticism, intimidation, insults or other indignities fail to sustain a claim of infliction of emotional distress because the conduct alleged is not sufficiently outrageous.” Lydeatte v. Bronx Overall Econ. Dev. Corp., No. 00 Civ. 5433 (GBD), 2001 WL 180055, at *2 (S.D.N.Y. Feb. 22, 2001); see also Stevens v. New York, 691 F. Supp. 2d 392, 399 (S.D.N.Y. 2009). Here, Plaintiff alleges in her complaint that she was routinely harassed on the basis of her gender and sexual orientation. On numerous occasions, Defendants Evan Sacks and Devon Reiff allegedly asked, both in person and over text message, about Plaintiff’s sexual practices. (Compl. ¶ 27.) Plaintiff was allegedly asked whether she engaged in “kinky behavior” and whether she had sexually suggestive photographs. (Id. ¶ 23.) At other times, Plaintiff allegedly faced questions about lesbian bars, requests to be taken to such bars, and comments on her appearance. (Id.) Simply put, Plaintiff’s allegations against Defendants constitute improper behavior, but they do not rise to the level of extreme and outrageous conduct.

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