Farasat v. Paulikas

Page 244

32 F.Supp.2d 244

Shahed FARASAT, Plaintiff v. Debbie PAULIKAS, CTF Hotel Management Corporation and Marriott International, Inc., Defendants

No. CIV. H-97-1488.

United States District Court, D. Maryland.

June 11, 1997.

Samuel Sperling and Sperling and Framm, Baltimore, MD, for plaintiff.

Todd J. Horn and Venable, Baetjer and Howard, Baltimore, MD, for defendants.

MEMORANDUM AND ORDER

ALEXANDER HARVEY, II, Senior District Judge.

This civil action was filed in the Circuit Court for Baltimore City and was removed by defendants to this Court pursuant to 28 U.S.C. § 1441. Plaintiff is an Iranian-born male who was formerly employed at the Renaissance Harborplace Hotel (the "Hotel") in Baltimore. He was fired on March 27, 1994. This suit was filed in the state court on March 24, 1997. Named as defendants are Debbie Paulikas (plaintiff's supervisor), CTF Hotel Management Corporation and Marriott International, Inc.

The complaint and the proposed amended complaint contain five counts. In Counts I and II, plaintiff has sued defendants for employment discrimination under 42 U.S.C. § 1981. The other three counts assert claims under state law. In Count III, plaintiff alleges intentional infliction of emotional distress. In Count IV, plaintiff alleges abusive discharge based on employment discrimination. In Count V, plaintiff alleges that his employer, by terminating plaintiff, breached a duty of good faith owed to him.

Pending before the Court are defendants' motion to dismiss and plaintiff's motion to amend complaint. Memoranda in support of and in opposition to these motions have been filed by the parties. No hearing is necessary. See Local Rule 105.6. For the reasons stated herein, plaintiff's motion to amend complaint will be granted, and defendants' motion to dismiss Counts I, III, IV and V of the amended complaint will also be granted. The only claim remaining in this case will be plaintiff's allegation in Count II of the amended complaint that he was discharged because of his race in violation of § 1981.

I Plaintiff's Motion to Amend the Complaint

In the complaint which he filed in the Circuit Court for Baltimore City, plaintiff in Counts I and II asserted claims under § 1981 based on his sex (male) and his national origin (Iranian). Plaintiff now concedes that his claims of sex discrimination and sexual harassment cannot be brought under § 1981. See Duane v. GEICO, 784 F.Supp. 1209, 1216 (D.Md.1992), aff'd., 37 F.3d 1036 (4th Cir.1994). Plaintiff further acknowledges that § 1981 does not apply to discrimination based on the place or nation of a plaintiff's origin. Saint Francis College v. Al-Khazraji, 481 U.S. 604, 613, 107 S.Ct. 2022, 95 L.Ed.2d 582 (1987); see also Duane, 784 F.Supp. at 1216.

In his motion seeking leave to amend, plaintiff asks this Court to allow him to amend his complaint to strike the words "national origin" and insert the word "race" throughout the complaint. Relying on Saint Francis College and Cuello Suarez v. Puerto Rico Electric Power Authority, 798 F.Supp. 876, 890-91 (D.P.R.1992), aff'd, 988 F.2d 275 (1st Cir.1993), plaintiff contends that courts considering the issue presented in this case have broadly construed the term "race" and have extended the protection of § 1981 to any person suffering discrimination on the basis of his or her ethnic ancestry or background.

In responding to plaintiff's motion for leave to file an amended complaint, defendants indicate that they are not objecting to the Court's granting plaintiff leave to amend his complaint to raise a claim of race discrimination under § 1981. Indeed, defendants have now filed an answer to Count II of the amended complaint. However, defendants continue to press their contentions that all counts of the amended complaint other than Count II should be dismissed.

Under the circumstances, the Court will grant plaintiff's motion to amend complaint. The amended complaint will be deemed to have been filed today. The Court will, however, proceed to rule on defendants' motion to dismiss, which now challenges Counts I, III, IV and V of the amended complaint.

II

The Motion to Dismiss

(a) Count I — Claim Under § 1981

Defendants first argue that the claim asserted by plaintiff in Count I of the amended complaint is barred by limitations. The parties agree that Maryland's three year limitations period applies to a § 1981 claim. Davis v. Bethlehem Steel Corp., 600 F.Supp. 1312, 1321 (D.Md.), aff'd., 769 F.2d 210 (4th Cir.), cert. denied, 474 U.S. 1021, 106 S.Ct. 573, 88 L.Ed.2d 557 (1985). Plaintiff was fired on March 27, 1994, and this suit was filed on March 24, 1997. Count II challenges as racially discriminatory under § 1981 the termination of his employment on March 27, 1994. Since suit was filed within the three year period, plaintiff's claim asserted in Count II is not barred by limitations.

The claim asserted by plaintiff in Count I is based on discriminatory acts and harassment occurring during the period of his employment. Quite obviously, these acts must necessarily have occurred before March 27, 1994. Indeed, the fact that there are different bases for Count I and Count II of the amended complaint is acknowledged by plaintiff. According to plaintiff, his rights were breached in two separate ways, "first with regard to his enjoyment of the conditions of his employment, and again in the dissolution of that relationship (his termination) which is the classical formulation of the protection of § 1981." (Defendants' Memorandum in Opposition, p. 6). The enjoyment by plaintiff of the conditions of his employment necessarily occurred before the date of his firing. From its review of the amended complaint, the Court concludes that the acts challenged in Count I all occurred more than three years before this suit was filed. There is no indication in the amended complaint that the discriminatory and harassing acts occurred only during the four days between March 24 and March 27, 1994. Indeed, plaintiff was on vacation until March 25, 1994, and, when he returned, he was given a written warning and suspended for conduct which allegedly occurred on March 13, 1994. He claims that the Hotel had not investigated the circumstances behind his conduct before suspending him. However, all of those circumstances occurred well before he was fired.

There is no merit to plaintiff's contention that Count I is based on a continuing violation. Inasmuch as the statute of limitations in an employment discrimination case begins to run at the time of the discriminatory act and not when the consequences of the act become painful, the firing of an employee cannot constitute a continuing violation. Conner v. Reckitt & Colman, Inc., 84 F.3d 1100, 1102 (8th Cir.1996). Nor can plaintiff avoid the bar of limitations in this case on the ground that he has alleged a "pattern" of harassment. Plaintiff has not in the amended complaint identified any instances of harassment which occurred within the three year limitations period. The only incident challenged by plaintiff which occurred during the non-barred four day period in March of 1994 is his dismissal. Although he received a written warning and was suspended on March 25, 1994, these events were based on earlier discriminatory conduct of defendants which allegedly occurred on March 13, 1994.

For these reasons, this Court concludes that Count I of plaintiff's complaint is barred by limitations. The only § 1981 claim which remains in this case is plaintiff's allegation in Count II that he was subjected to a discriminatory discharge because of his race.

(b)

Count III — Intentional Infliction of Emotional Distress

In Count III of the amended complaint, plaintiff alleges a claim under state law of intentional infliction of emotional distress. The elements of such a claim were set forth by the Court of Appeals of Maryland in Harris v. Jones, 281 Md. 560, 566, 380 A.2d 611 (1977), as follows:

(1) The conduct must be intentional or reckless;

(2) The conduct must be extreme and outrageous;

(3) There must be a causal connection between the wrongful conduct and the emotional distress; and

(4) The emotional distress must be severe.

Each of these elements must be pled and proved with specificity. Foor v. Juvenile Services Admin., 78 Md.App. 151, 175, 552 A.2d 947, cert. denied, 316 Md. 364, 558 A.2d 1206 (1989). A plaintiff must set forth facts which, if true, would suffice to demonstrate that all the elements exist. Id.

In support of his Count III claim, plaintiff relies on the following allegations:

1. That defendant Paulikas committed acts of sexual harassment against plaintiff, including grabbing him and hugging him as well as grabbing his arm and rubbing herself against him;

2. That Paulikas made verbal statements designed to sexually harass plaintiff;

3. That Paulikas stated that she would sleep with plaintiff ahead of her boyfriend; and

4. That Paulikas told plaintiff's girlfriend, when she called him at work, that plaintiff was "under the table and would not be done for a while."

Following its review of the applicable Maryland cases, this Court has concluded that the claim asserted by plaintiff in Count III must be dismissed. The tort of intentional infliction of emotional distress is rarely viable. Bagwell v. Peninsula Regional Medical Center, 106 Md.App. 470, 514, 665 A.2d 297 (1995), cert. denied, 341 Md. 172, 669 A.2d 1360 (1996). Maryland courts have established a high standard of culpability before conduct can be considered "extreme and outrageous." Harris, 281 Md. at 566-572, 380 A.2d 611. Plaintiff has failed to allege conduct on the part of defendant Paulikas which was "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 society." Id. 281 Md. at 567, 380 A.2d 611. To be actionable, the conduct relied upon "must strike to the very core of one's being,...