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In employment discrimination cases, a full range of motions are available to both plaintiffs and defendants. Summary judgment is, of course, the most prevalent, and typically the key motion made in any employment litigation. But it would be a mistake to ignore the many other tools of the motion trade relevant to employment practice. MOTIONS TO STRIKE ALLEGATIONS OR DEFENSES Fed. R. Civ. P. 12(f) allows a party to move to strike any redundant, immaterial, impertinent, or scandalous matter, or any insufficient defense from a pleading. The motion can be made before responding to a pleading or, if no responsive pleading is permitted, within 20 days after the pleading has been filed. Fed. R. Civ. P. 12(a)(4)(A). Motions to strike under Rule 12(f) are not favored by many courts and are typically denied, unless the matter to be stricken clearly has no bearing on the issues in dispute. See, e.g., Food & Allied Serv. Trades Dept. v. Millfeld Trading Co. Inc., 841 F. Supp. 1386, 1392 (S.D.N.Y. 1994); Zinaman v. USTS New York Inc., 798 F. Supp. 128, 135 (S.D.N.Y. 1992). Examples of denials include the denial of a motion to strike the defense of failure to state a claim on the ground that such a defense is akin to a general denial and, therefore, is not prejudicial. Simon v. Manufacturers Hanover Trust, 849 F. Supp., 880, (S.D.N.Y. 1994). A motion to strike the defense of failure to mitigate may be denied as premature prior to discovery on the issue. Gorwin v. Local282, IBT, 838 F. Supp. 116 (S.D.N.Y. 1993). Courts have granted motions to strike a variety of allegations in employment cases. For example, an allegation reciting that the New York State Division of Human Rights had found probable cause to believe that defendants engaged in age discrimination was stricken on the ground that no actual issues were adjudicated in the proceeding before the New York State Division of Human Rights and, thus, its probable cause determination could not be used as evidence in subsequent litigation. Ledford v. Rapid-American Corp., 47 Fair Empl. Prac. Cas. (BNA) 312, 313 (S.D.N.Y. 1988). But see Strauss v. Microsoft, 1995 WL 326492 (S.D.N.Y. June 1, 1995) (ruling that a no probable cause determination was admissible in an action alleging sex discrimination in violation of New York Human Rights Law and Title VII). Allegations in an age discrimination complaint concerning sexual comments allegedly made by one of the defendants were stricken on the ground that there was no connection between those comments and the age discrimination claim. Urashka v. Griffin Hosp., 841 F. Supp. 468, 476-77 & n.12 (D. Conn. 1994). Allegations in complaints concerning settlement discussions have been stricken as immaterial and potentially prejudicial because such discussions are inadmissible to show fault under Fed. R. Evid. 408. Kelly v. L.L. Cool J., 145 F.R.D. 32 (S.D.N.Y. 1992), aff’d, 23 F.3d 398 (2d Cir.), cert. den., 115 S.Ct. 365, (1994). MOTIONS TO DISMISS IN COMMON TORT CLAIMS Federal and New York state courts routinely grant motions to dismiss wrongful discharge claims for failure to state a cause of action, in light of the employment at-will doctrine. See Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983). A few narrow exceptions to the employment-at-will doctrine have emerged. In Wieder v. Skala, 80 N.Y.2d 628 (1992), the New York Court of Appeals refused to dismiss a complaint by an attorney who alleged he was wrongfully terminated in violation of public policy. He claimed he was terminated after he informed his law firm’s partners that another attorney had violated the Code of Professional Responsibility and asked that the firm report the misconduct. In the years since the Wiederdecision was issued, it has been narrowly limited by the lower New York courts. See Haviland v. J. Aron & Co., 622 N.Y.S.2d 703, (1st Dep’t 1995), appeal denied, 85 N.Y.2d 810, 629 N.Y.S.2d 724, 653 N.E.2d 620 (1995). In December 2000, however, the Supreme Court, New York County, denied a motion to dismiss a complaint brought by an individual who alleged that she was dismissed from her job as a physician in the Medical Department of The New York Timesfor refusing to comply with a directive that she disclose confidential patient information. Horn v. New York Times, 2000 WL 18 76366 (N.Y. Sup. 12/11/00). In Weiner v. McGraw-Hill Inc., 57 N.Y.2d 458, (1982) the New York Court of Appeals recognized a cause of action for breach of an implied contract arising from pre-employment written promises contained in an employee handbook (as well as from the employer’s oral assurances at the time of hiring) that it was company policy not to discharge employees other than for just cause. The appellate divisions have limited Weinerand have frequently dismissed claims for breach of an implied employment contract based on an employment manual. For example, the appellate divisions have dismissed cases where: (1) the employee manual provided only general policy statements and supervisory guidelines and did not otherwise contain any specifics as to jobs, positions, salary or the term of employment. Patrowich v. Chemical Bank, 98 A.D.2d 318, 470 N.Y.S.2d 599, 603 (1st Dep’t), aff’d, 63 N.Y.2d 541, 483 N.Y.S.2d 659, (1984); (2) there was no allegation of any specific period of employment or of any express or implied promise that the employment would continue for an indefinite period of time. Hager v. Union Carbide Corp., 106 A.D.2d 348, 483 N.Y.S.2d 261, (1st Dep’t 1984); and (3) the employee could not have relied on the promises in accepting the job and giving up another job, either because the employment manual was issued subsequent to the commencement of employment or the employee did not see the manual until after he was hired. Wernham v. Moore, 121 A.D.2d 297, 504 N.Y.S.2d 3 (1st Dep’t 1986). Claims for intentional infliction of emotional distress under New York law are frequently dismissed. Such claims are only sustained if the conduct alleged goes “beyond all possible bounds of decency and [is] regarded as atrocious and utterly intolerable in a civilized community.” Murphy v. American Home Prods., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 236, 448 N.E.2d 86, 90 (1983). See also Freihofer v. Hearst Corp., 65 N.Y.2d 135, 490 N.Y.S.2d 735 (1985). The employer’s conduct must “consist of more than mere insults, indignities and annoyances and must be so shocking and outrageous as to exceed all reasonable bounds of decency.” Nestlerode v. Federal Ins. Co., 66 A.D.2d 504, 507, 414 N.Y.S.2d 398, 400 (4th Dep’t), appeal den., 48 N.Y.2d 604, 421 N.Y.S.2d 1029, 396 N.E.2d 487 (1979). Courts have granted motions to dismiss claims of tortious interference with contractual relations where the alleged interference stemmed from derogatory comments made about the plaintiff, on the ground that the claim, in essence, was a defamation claim that was brought past the one-year statute of limitations for defamation. Ramsay v. Mary Imogen Bassett Hosp., 113 A.D.2d 149, 495 N.Y.S.2d 282 (3d Dep’t 1985). These cases illustrate that on motions to dismiss, courts will not necessarily accept a complaint as drafted by plaintiff, but will analyze the substance of the claim underlying the complaint. PATENTLY INCREDIBLE CLAIMS Claims are sometimes made that, although fitting within existing legal doctrines, are incredible on their face. Although both federal and state courts follow the rule that on a motion to dismiss all factual allegations are considered true, there are limits. For example, in Pacifico v. Playwrights Horizons, 163 Misc. 2d 1084, 623 N.Y.S.2d 474 (Sup. Ct. N.Y. Co. 1994), the New York Supreme Court granted a school’s motion to dismiss tort claims brought by an ex-student. Plaintiff had alleged that certain school personnel who allegedly had harassed him were well-known movie actors, when in fact they were not. The court dismissed the case prior to discovery, holding that “factual claims, which are either inherently incredible or flatly contradicted by documentary evidence � are not presumed to be true on a motion to dismiss.” Id., 163 Misc. 2d at 1086, 623 N.Y.S.2d at 475 ( citing O’Donnell, Fox & Gartner P.C. v. R-2000 Corp., 198 A.D.2d 154, 604 N.Y.S.2d 67 (1st Dep’t 1993)). CLAIMS AGAINST SUPERVISORY EMPLOYEES If an employee sues individual defendants in addition to the employer, the employer might decide to seek dismissal of the claims against the individual defendants for failure to state a claim. In Tomka v. The Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), the 2nd Circuit held that individual supervisors cannot be held liable under Title VII. A number of district courts in New York have dismissed employment discrimination claims against supervisory employees when (1) the employer was already a defendant in the case, (2) there was no evidence that the employee had a separable claim against the supervisor, and (3) there was no evidence that the employee would be prejudiced by dismissing the supervisor from the case. Bramesco v. Drug Computer Consultants, 834 F. Supp. 120, (S.D.N.Y. 1993) (Title VII); Chambers v. Capital Cities/ABC, 851 F. Supp. 543, (S.D.N.Y. 1994) (ADEA). As to claims against supervisors under New York state law, the New York Court of Appeals in Patrowich v. Chemical Bankheld that an individual defendant cannot be held liable for discrimination as an employer under either the New York Human Rights Law or the New York Labor Law, unless the individual defendant has an ownership interest in the employer or power to do more than merely carry out personnel decisions made by others. 63 N.Y.2d 541, 483 N.Y.S.2d 659, 473 N.E.2d 11, (1984). The 2nd Circuit and some New York state courts, however, have allowed Human Rights Law claims to proceed against individuals, under � 296(6) of the Human Rights Law, which states that it is unlawful “for any person to aid, [or] abet” acts of discrimination. The New York City Human Rights Law appears to allow claims against individual defendants. In Matter of Maloff, the New York Court of Appeals affirmed the New York City Commission on Human Rights’ finding of individual liability under the city law. 46 N.Y.2d 902, 414 N.Y.S.2d 897, 387 N.E.2d 1213 (1979). STATUTES OF LIMITATIONS There are several different statutes of limitations that litigants should keep in mind as potential bases for a motion to dismiss. In New York, a plaintiff must file a charge of discrimination with the EEOC alleging violations of Title VII, ADA or the ADEA within 300 days of the alleged act of discrimination. 42 U.S.C. � 2000e-5(e) (Title VII); 42 U.S.C. � 12117(a) (ADA); 29 U.S.C. � 626(d) (ADEA). Under these statutes, a discrimination charge must be filed within 180 days of the alleged act of discrimination — unless the plaintiff resides in a state with a Fair Employment Practice Agency that the EEOC recognizes as a deferral agency, in which case plaintiff has 300 days to file the charge with the EEOC. The EEOC recognizes the New York City Human Rights Commission as a deferral agency for Title VII and ADA claims, but not for ADEA claims. Therefore, claimants in New York have 300 days from the date of the alleged discrimination in which to file their Title VII or ADA charge with the EEOC. Courts have repeatedly dismissed suits in which the charge was filed more than 300 days after the alleged discrimination. See, e.g., Fuentes v. City of New York Human Resources Admin., 830 F. Supp. 786, (S.D.N.Y. 1993) (Title VII). An additional statute of limitations applies only to Title VII and ADA. If the EEOC issues a right-to-sue letter to the plaintiff, the plaintiff must commence an action in court within 90 days of its receipt or the action will be barred. 29 U.S.C. 2000e-5(f)(1). An ADEA action must be commenced within two years of the act giving rise to the violation — or in the case of a willful violation, within three years. 29 U.S.C. � 626(d). Under the New York Human Rights Law, an employee makes an election of remedies at the outset and chooses between either filing a court action or filing a complaint with the New York Human Rights Division. If the employee elects a court action, he or she must file a complaint within three years of the date on which the discriminatory act occurred. Koerner v. State of New York, 62 N.Y.2d 442, 478 N.Y.S.2d 584, 467 N.E.2d 232, (1984). If the employee elects to file a complaint with the state division of human rights, he or she must do so within one year of the date on which the alleged unlawful discriminatory practice occurred. N.Y. Exec. L. � 297(5); 9 N.Y.C.R.R. � 465.3(e). DISCLOSURE MOTIONS Discovery disputes frequently arise in employment litigation. Plaintiffs are sensitive about discovery requests that seek personal information, such as details of the plaintiff’s financial or psychological history or behavior. Employers are resistant to discovery requests that they believe to be overly broad, or to be seeking data that they consider confidential or subject to privilege. Courts will guard against unnecessary intrusion into the lives of litigants. Nevertheless, certain personal matters have been ruled discoverable in employment cases. For example, plaintiffs who allege other than “garden-variety” emotional distress damages are ordinarily considered to have put into issue any psychological treatment or other evidence of psychological damage. Miranda v. Mount Sinai School of Medicine of the City of New York, No. 95 Civ. 1823, 1995 WL 412387, at * 1 (S.D.N.Y. July 11, 1995) (ordering production of records of plaintiff’s psychiatric treatment and psychological counseling because, by alleging emotional, psychological and physical distress, plaintiff had placed the cause or causes of his distress in issue); Bridges v. Eastman Kodak Co., 850 F. Supp. 216 (S.D.N.Y. 1994) (permitting defendants to question plaintiffs’ therapists about plaintiffs’ psychological histories and to conduct related discovery where plaintiffs were seeking compensation for their mental anguish). Plaintiffs alleging loss of consortium are considered to have waived any objection to discovery concerning details of sexual conduct with their spouses during the period for which damages are claimed. Plaintiffs claiming back pay or front pay routinely must provide financial information concerning their sources of income and their efforts to obtain alternative employment. See Nielsen v. Society of the New York Hosp., No. 87 Civ. 8526, 1989 WL 52316, at * 1 (S.D.N.Y. 5/8/89) (“Where, as here, a plaintiff seeks back pay, it is entirely justifiable that plaintiff produce tax returns showing wages earned since the alleged discrimination.”) Employers are often put into the position of objecting to discovery requests for information concerning employees other than the plaintiff. Although courts are understanding of the privacy rights of parties not directly involved in litigation, they often order production of other employees’ personnel files, or information concerning salaries and bonuses, if such information is considered necessary for plaintiff to prove his or her claim of discrimination. Fitzgibbons v. Sanyo Sec. America Inc., No. 92 Civ. 2818, 1994 WL 281928, (S.D.N.Y. Jun. 22, 1994); Abel v. Merrill Lynch & Co. Inc., No 91 Civ. 6261, 1993 WL 33348, at *5 (S.D.N.Y. 2/4/93). Theodore O. Rogers Jr. is a partner with Sullivan & Cromwellin New York and a member of the advisory board of theNew York Employment Law & Practice newsletter.

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