Burger v. Health Ins. Plan of Greater New York

• Decision Date: 15 April 1988
• Docket Number: No. 87 Civ. 8238 (KC).,87 Civ. 8238 (KC).
• Citation: 684 F. Supp. 46
• Parties: Joffre C. BURGER, Plaintiff, v. HEALTH INSURANCE PLAN OF GREATER NEW YORK, Gerard Lynham, and Jerry Pellegrino, Defendants.
• Court: U.S. District Court — Southern District of New York

684 F. Supp. 46

Joffre C. BURGER, Plaintiff, v. HEALTH INSURANCE PLAN OF GREATER NEW YORK, Gerard Lynham, and Jerry Pellegrino, Defendants.

No. 87 Civ. 8238 (KC).

United States District Court, S.D. New York.

April 15, 1988.

Arthur Wisehart and Kirk Bigelow, Wisehart and Koch, New York City, for plaintiff.

Richard Block, Robin Stout, Stacey Balson, Stroock and Stroock, New York City, for defendants.

CONBOY, District Judge:

This case, brought by a former employee who alleges age and sex discrimination by a health insurance provider, involves interesting questions concerning the exercise of pendent jurisdiction over state law claims, and Rule 11 sanctions.

Defendant Health Insurance Plan of New York ("HIP") employed plaintiff beginning February 11, 1985. She continued in HIP's employ until April 17, 1987, when she took sick leave status. She alleges that this was necessitated by a nervous breakdown, allegedly resulting from acts of harassment and discrimination by HIP and the other defendants, her supervisors. The complaint alleges claims arising under section 3 of the Age Discrimination in Employment Act, 29 U.S.C. §§ 621-634 (1982) ("ADEA"), 42 U.S.C. § 1985(3) (1982), and claims arising under New York statutory and common law. Jurisdiction is asserted under 28 U.S.C. §§ 1331, 1332, 1343 (1982), and the doctrine of pendent jurisdiction. The action is before the court on defendant's motion to dismiss the complaint in part, pursuant to Fed.R.Civ.P. 12(b), plaintiff's cross-motion for leave to amend the complaint, defendant's cross-motion to strike pleadings from the amended complaint, and plaintiff's cross-motion for a continuance, to strike plaintiff's cross-motion, disqualify defendant's counsel, and for sanctions pursuant to Fed.R.Civ.P. 11.

LEGAL ANALYSIS

A. The Substantive Motions

Leave to amend a complaint shall be given freely, absent bad faith, undue delay, or prejudice to the defendant. See Foman v. Davis, 371 U.S. 178, 182, 83 S.Ct. 227, 230, 9 L.Ed.2d 222 (1962); S.S. Silberblatt, Inc. v. East Harlem Pilot Block—Bldg. 1 Hous. Dev. Fund Co., 608 F.2d 28, 42 (2d Cir.1979); Index Fund, Inc. v. Hagopian, 609 F.Supp. 499, 503 (S.D.N.Y.1985). The defendants have not indicated any substantive objection to the amendment generally. Thus, the court grants leave to amend.

However, the defendants do assert that "a careful reading of the proposed Amended Complaint demonstrates that it has the same serious deficiencies as the original." Defendants' Reply Memorandum, dated Mar. 25, 1988, at 2-3. For that reason, it is appropriate to scrutinize the submitted proposed amended pleading. The court "need not permit an amendment which is a legally insufficient basis for any recovery." Ganguly v. New York State Dep't of Mental Hygiene—Dunlap Manhattan Psychiatric Center, 92 F.R.D. 125, 128 (S.D.N.Y.1981); see S.S. Silberblatt, Inc., 608 F.2d at 42; Kirkland v. City of Peekskill, 634 F.Supp. 950, 951 (S.D.N.Y. 1986).

Preliminarily, the court notes that the proposed amended complaint does not assert any violation of 42 U.S.C. § 1985(3) (1982). See Exhibit A to Affidavit of Arthur M. Wisehart, executed Mar. 16, 1988, at para. 1; see also Plaintiff's Memorandum in Opposition, dated Mar. 16, 1988, at 4. Instead, plaintiff asserts a claim under Title VII, 42 U.S.C. §§ 2000e to 2000e-17 (1982). Second, the proposed amendment adds a claim under the Equal Pay Act, 29 U.S.C. § 206(d) (1982). See Exhibit A to Wisehart Mar. 16, 1988 Aff. at para. 1. Third, the amended pleading does not allege diversity of citizenship as a basis of jurisdiction. See id.

Defendants' only objection to a federal claim in the proposed pleading concerns the claim under the Equal Pay Act. Defendants contend that the pleading fails to assert a claim under that Act. To succeed on a claim under the Equal Pay Act, the plaintiff must plead and prove that an employer-defendant

pays different wages to employees of opposite sexes "for equal work on jobs the performance of which requires equal skill, effort, and responsibility, and which are performed under similar working conditions."

Corning Glass Works v. Brennan, 417 U.S. 188, 195, 94 S.Ct. 2223, 2228, 41 L.Ed. 2d 1 (1974) (quoting 29 U.S.C. § 206(d)(1) (1982)).

The amended complaint alleges violations of the Equal Pay Act based on plaintiff's employment in relation to two individuals, defendant Pellegrino and an unnamed consultant. Defendants correctly point out that the complaint acknowledges that Pellegrino "was head of the department in which plaintiff worked," and for a time was plaintiff's immediate supervisor. Amended Complaint at para. 7. Thus, as a matter of law their jobs did not entail equal responsibility. See Jones v. Flagship Int'l, 793 F.2d 714, 723 (5th Cir.1986), cert. denied, ___ U.S. ___, 107 S.Ct. 952, 93 L.Ed.2d 1001 (1987); Estrada v. Siros Hardware, 39 Fair Employ. Cas. (BNA) 597, 600 (S.D. Tex.1984) available on WESTLAW 1984 WL 2348.

Defendants also argue that there is no allegation in the proposed amendment that the consultant performed a job of equal skill, effort, or responsibility as the one plaintiff performed. This contention is not persuasive. Dismissal pursuant to Rule 12(b)(6) for failure to state a claim is not warranted unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of her claim which would entitle her to relief." Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 102, 2 L.Ed.2d 80 (1957); see Patton v. Dole, 806 F.2d 24, 30 (2d Cir.1986); People of the State of New York v. Holiday Inns, Inc., 656 F.Supp. 675, 682 (W.D.N.Y.1984). "Any ambiguities or doubts concerning the sufficiency of the claim must be resolved in favor of the pleader." Doe v. United States Dep't of Justice, 753 F.2d 1092, 1102 (D.C.Cir.1985) (emphasis in original); see Stifel, Nicolaus & Co. v. Dain, Kalman & Quail, Inc., 578 F.2d 1256, 1260 (8th Cir.1978) (plaintiff "is entitled to the benefit of all reasonable inferences in his favor that may be drawn from the alleged facts"). Under this standard, the proposed amended pleading is sufficient. One can infer from paragraph 52 of the pleading that the consultant, "who in reality functioned as an employee of HIP," replaced plaintiff and performed her job.

Defendants further object to the proposed amendment because it continues to include pendent state claims which they objected to in their original motion to dismiss. See Defendant's Memorandum in Support of Motion to Dismiss, dated Jan. 22, 1988, at 10-21; Defendants' Reply Memorandum, dated Mar. 25, 1988, at 14-18. Because plaintiff has had an opportunity to respond to defendant's contentions, it is appropriate to rule at this time.

"The decision to exercise pendent jurisdiction is vested in the sound discretion of the district court." Fay v. South Colonie Cent. School Dist., 802 F.2d 21, 34 (2d Cir.1986) (citing United Mine Workers of America v. Gibbs, 383 U.S. 715, 725-28, 86 S.Ct. 1130, 1138-40, 16 L.Ed.2d 218 (1966)). Courts are cautioned to avoid making needless decisions of state law. See id.

With these principles in mind, the court declines to exercise pendent jurisdiction over those of plaintiff's claims that are based on state law.¹ There are two reasons, which when viewed together, require this result. First, the ADEA does not allow for the recovery of either compensatory or non-statutory punitive damages. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 125-26, 105 S.Ct. 613, 623-24, 83 L.Ed.2d 523 (1985) (the ADEA's legislative history indicates that the liquidated damages provided for in the statute serve the function of punitive damages); Johnson v. Al Tech Specialties Steel Corp., 731 F.2d 143, 146-48 (2d Cir.1984) (compensatory damages not recoverable under ADEA).² In contrast, plaintiffs prevailing on the claims this plaintiff asserts are entitled to compensatory and, on all except breach of contract claims, punitive damages. See, e.g., Papell v. Calogero, 68 N.Y.2d 705, 705, 707, 497 N.E.2d 676, 676-77, 506 N.Y. S.2d 309, 309-10 (1986) (mem.) (tortious interference with contract); Vias v. Rohan, 119 A.D.2d 672, 672, 501 N.Y.S.2d 109, 109-10 (2d Dep't 1986) (mem.) (intentional infliction of emotional distress); Travel Dynamics, Inc. v. Delian Cruises, S.A., 117 A.D.2d 524, 525, 498 N.Y.S.2d 138, 139 (1st Dep't 1986) (mem.) (breach of contract); Cheatum v. Wehle, 14 A.D.2d 641, 641, 218 N.Y.S.2d 284, 284 (3d Dep't 1961) (mem.) (slander), aff'd mem., 11 N.Y.2d 745, 181 N.E.2d 458, 226 N.Y.S.2d 447 (1962). As the plaintiff has demanded a jury trial, to which she is entitled under the ADEA, Lorillard v. Pons, 434 U.S. 575, 585, 98 S.Ct. 866, 872, 55 L.Ed.2d 40 (1978), both the pendent claims and the claim under the ADEA would be before the jury.³ Placing plaintiff's state law claims, some of which involve questions of the plaintiff's mental state and defendant's malice that are irrelevant to an ADEA claim, before the jury could lead to jury confusion on the damages issue.⁴See McLaurin v. Fischer, 768 F.2d 98, 105 (6th Cir.1985); Arnell v. Pan Am. World Airways, 611 F.Supp. 908, 910 (S.D.N.Y.1985); Malarkey v. Texaco, 559 F.Supp. 117, 123 (S.D.N.Y.1982), aff'd per curiam, 704 F.2d 674 (2d Cir.1983).

Viewed in isolation, this ground probably would not persuade the court to decline jurisdiction. Considerations of judicial economy, convenience, and fairness to the litigants would weigh heavily in favor of exercising jurisdiction over the state claims. See Glezos v. Amalfi Ristorante Italiano, 651 F.Supp. 1271, 1275-77 (D.Md. 1987); Studint v. LaSalle Ice Cream Co., 623 F.Supp. 232, 234-35 (E.D.N.Y.1985). However, there are other factors to consider.

The plaintiff asks this court a) for relief to which she is not entitled on her claim for intentional infliction of emotional distress, and b) to apply state law on a wholly unprecedented basis in New York on a very important issue in the defamation area. First, regarding plaintiff...