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June 2012

New York Employment Group Wins Motion to Dismiss and Obtains Significant Sanctions Award

New York partner Diane Krebs prevailed on a motion to dismiss and motion for sanctions in the Eastern District of New York. The plaintiff was a former employee who had been terminated for insubordination (which she admitted in her complaint) and then reapplied for her old job more than four years later. At that time, she alleged that one manager told her to come to the office to fill out an application, and when she got there another manager screamed at her to leave the office because she was not supposed to be there. She was not interviewed or rehired. She also alleged she was the only female from the Indian subcontinent who worked in her position at her location, though there were several males.

Based on these facts, and only these facts, the plaintiff claimed she was the victim of race, sex and national origin discrimination, retaliation, and the common law tort of intentional infliction of emotional distress ("IIED"). Gordon & Rees immediately moved to dismiss all the claims before any discovery ensued. We argued that several of the claims were barred because the plaintiff brought them outside the limitations period and/or had not exhausted her administrative remedies, and in any event all the claims – whether timely/exhausted or not – were based upon an insufficient factual predicate to plausibly give rise to a legitimate cause of action.

Gordon & Rees also, after following the strict protocols of Rule 11 of the Federal Rules of Civil Procedure, moved for sanctions in the form of all attorneys' fees and costs arising out of the IIED claim. We cited a slew of cases leaving no room for doubt that the mild set of facts alleged by the plaintiff fell well below the high bar set by New York courts to sustain an IIED cause of action in an employment context, and we argued it was frivolous for plaintiff's counsel to assert the cause of action. We also did detailed research on plaintiff's counsel, and found that he had attempted – unsuccessfully – on multiple prior occasions to assert IIED cases under very similar fact patterns. We included those cases in our motion as evidence that plaintiff's counsel already knew the plaintiff's IIED claim was frivolous.

On May 31, 2012, the Honorable Brian M. Cogan issued his decision granting the motion to dismiss in its entirety. In particular, with respect to the discrimination claims, Judge Cogan echoed Gordon & Rees's argument that a plaintiff cannot bring a lawsuit just because she is in a protected class and has experienced an adverse employment action; there must be some evidence to suggest that it occurred because of her protected status, and mere speculation is insufficient. Concerning the IIED claim, Judge Cogan agreed that it could not be sustained.

Just one week later, on June 7, 2012, Judge Cogan granted Gordon & Rees's motion for sanctions. The court was persuaded by the cases we found that there was no rational basis for plaintiff's counsel to have believed he could succeed with the IIED claim, and that his history weighed in favor of sanctions. The court also felt that a substantial sanctions award was warranted to help deter plaintiff's counsel from bringing such cases in the future. The court thus agreed to award Gordon & Rees all of its reasonable fees and costs incurred in having to defend against the IIED claim. It also imposed an additional sanction of $1000 to be paid to the court.



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