In Miles v. Pepsico et al, 20-cv-1591, 2022 WL 798272 (N.D.N.Y. March 16, 2022), a case arising from allegations of a racially discriminatory workplace – asserted by one African American plaintiff and two of his Caucasian co-workers – the court granted defendants’ motion to dismiss plaintiff’s claims for (1) intentional infliction of emotional distress, (2) negligent infliction of emotional distress, and (3) negligent hiring, training, retention, and supervision.Plaintiff also asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York State Human Rights Law, but those claims are not the subject of the instant motion/decision.
Under New York law, the elements of an intentional infliction of emotional distress cause of action are: “(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.”
Applying the law, the court explained:
In Plaintiffs’ complaint, Plaintiff Miles alleges that, over a course of several years, Caucasian co-workers and supervisors made “countless” racially derogatory remarks and used slurs toward him, including references that, because of his race, Plaintiff Miles was dealing drugs, “probably a slumlord,” that he should be dropped off at the jail “with [his] people,” and that his hair was “dirty like a mop.” See Dkt. No. 1 at ¶ 70. Plaintiff Miles also alleges that he was written up for other workers’ mistakes, that he was not allowed to park in the lot closest to his department, and that his co-workers would never tell him if he was doing something wrong so as to let the mistakes “pile up,” thus warranting a write-up. See id. at ¶¶ 55, 70. Plaintiffs Hutt and McClusky allege that they “witnessed [Plaintiff Miles’s] emotional collapse” and complained to Human Resources about the “racially hostile conduct.” See id. at ¶ 39. As a result of that disclosure, Plaintiffs Hutt and McClusky allege that Defendants targeted and harassed them as well as separated them from each other and their peers. See id. at ¶¶ 40-41.
*4 With respect to Plaintiffs Hutt and McClusky, the Court finds that their allegations merely amount to harassment and bullying, which are not sufficient to state a claim for IIED. See Peck v. Cty. of Onondaga, No. 5:21-CV-651, 2021 U.S. Dist. LEXIS 157561, *48 (N.D.N.Y. Aug. 19, 2021) (Hurd, J.) (stating that allegations of insults, bullying, and general harassment are not sufficient to state a claim for IIED). Although Plaintiff Miles’s allegations are more severe, and describe a discriminatory, hateful workplace, the Court finds that such verbal harassment, threats, and workplace interference are not so extreme as to go “beyond all possible bounds of decency” so as to meet the standard for asserting IIED claims in the employment context. Such vile conduct should not be tolerated in the workplace, but it is not synonymous with physical or sexual assault, which courts have found are so egregious that an IIED claim may stand.
Accordingly, the court dismissed plaintiff’s cause of action for intentional infliction of emotional distress.
The court also dismissed plaintiff’s claim of negligent infliction of emotional distress as abandoned, but further as to the merits since did “not fall within the intentional tort exception to the exclusivity provision of the Workers’ Compensation Law because Plaintiffs have clearly alleged their NIED claim in terms of negligence”).
Finally, the court turned to plaintiff’s’ claim of negligent hiring, training, retention, and supervision. As to this claim, plaintiffs alleged “that Defendants owed them a duty of care to be free from discrimination, harassment, and a hostile work environment and that they breached that duty by rehiring and promoting a Caucasian employee who made documented racist remarks to Plaintiff Miles and by taking ‘no action against other racist employees'” and further that “the employees were ‘racist at the time of hire'” and that “Defendants knew or should have known of the Caucasian employees’ propensities for racist conduct.”
As to this claim, the court held that plaintiffs did “not allege that Defendants engaged in this negligent conduct in hiring, supervising, or retaining employees outside of their scope of employment” or that “Defendants’ employees acted outside of the scope of their employment when they threatened or harassed Plaintiffs.” There were, for example, “no allegations that Defendants’ employees harassed Plaintiffs outside of work hours.”
Based on this, the court held that New York’s Workers’ Compensation Law precludes Plaintiffs’ claim for negligent hiring, training, retention, and supervision, and therefore granted defendants’ motion to dismiss that cause of action.
|↩1||Plaintiff also asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981, and the New York State Human Rights Law, but those claims are not the subject of the instant motion/decision.|