Furthermore, even if the New York Court of Appeals had not decided Sabetay, we might be inclined to believe that the Second Circuit's decision in Avis is inapposite to the case before us. It is well settled in this Circuit "that the decision of an intermediate state court on a question of state law is binding on us unless we find persuasive evidence that the highest state court would reach a different conclusion.
Affiliated FM Insurance Co. Sobol, F. All of the Appellate Division cases, that our research has uncovered and that were decided after the Avis decision, hold that oral assurances that an employer will only terminate an employee for cause are not a sufficient basis for finding that the employer has expressly agreed to limit its right to fire an employee at will.
Given the evolution of New York case law since the Avis decision, we believe that the New York Court of Appeals would now hold that an employer's oral assurances about termination that induce a person to become an employee of that employer, are not a sufficient basis for a jury to conclude that the employer expressly agreed to limit his right to fire the employee at will.
Therefore, plaintiff's breach of contract claim based on these oral assurances must fail. Due Process Claims a. Property Interest The Second Circuit has made clear that "[i]n the employment context, a property interest arises only where the state is barred, whether by statute or contract, from terminating or not renewing the employment relationship without cause. Goldin, F. In the instant case, none of the statutes cited by plaintiff bar defendant from terminating defendant without cause.
Moreover, as we have determined, defendant was not contractually bound to fire plaintiff only for cause. Therefore, plaintiff's contention that defendants deprived plaintiff of her "property" without due process of law when defendants fired plaintiff is meritless. See Bishop v. Wood, U. City of New York, F. Hess, A. Gonzalez Vales, F. In the instant case, none of the alleged procedures which plaintiff claims that the defendants violated "explicitly or implicitly gives rise to an entitlement to continued employment.
Therefore, plaintiff's due process claim based on defendants' alleged violation of its procedural rules must fail. Citing Vitarelli v. Seaton, U. The Supreme Court has made clear that its holdings in cases similar to Vitarelli merely "enunciate principles of federal administrative law rather than of constitutional law binding upon the States.
Horowitz, U. Indeed, courts since Horowitz have held that nonfederal agencies that promulgate procedures which do not create a right to continued employment, cannot be sued for violating due process when they fire an employee in violation of these procedures.
See Weinstein v. University of Illinois, F. Clinton, F. Gant, F. Thus, even assuming that defendants failed to follow their own procedures when they fired plaintiff, this failure did not deprive plaintiff of property without due process of law. Liberty Interest Plaintiff contends that defendants deprived her of her liberty interest in her reputation when defendants fired her.
Board of Cooperative Educational Services, F. Roth, U. Long Island Railroad, F. In the case before us, the record is uncontradicted that when defendants fired plaintiff, they did not tell her that she was being fired as a result of misconduct or any wrongdoing on her part. See Cucchi Dep. Moreover, plaintiff has not alleged that defendants ever asserted at any other time that they fired plaintiff because of misconduct or wrongdoing on her part.
The only reason defendants ever gave plaintiff for plaintiff's discharge was "ongoing changes within OTB. However, plaintiff's reliance on this article as a foundation for her liberty interest claim is misplaced. We find nothing in the article to be stigmatizing, let alone stigmatizing enough to implicate plaintiff's liberty interest in her reputation. None of plaintiff's other assertions of stigmatization have merit. Because plaintiff has presented no evidence of stigmatization, other than the consequence that results from simply being fired, defendant's motion for summary judgment on plaintiff's liberty interest claim is granted, and plaintiff's cross-motion on this issue is denied.
Plaintiff's Right to Privacy Plaintiff claims that because the October 15, New York Post article reported that plaintiff was home on maternity leave when she was fired, and because OTB employees were responsible for the article, defendants violated her right to privacy. One of the factors that a court must consider when determining whether the publication of certain information about a person violates that person's right to privacy is the nature of the information divulged.
See Soucie v. County of Monroe, F. Indeed, the Supreme Court's seminal opinion in this area seems to indicate that the information must be "personal in character and embarrassing or harmful if disclosed" in order to implicate the constitutional right to privacy. See Whalen v. Roe, U. Accordingly, plaintiff's privacy argument must fail. Defendants contend that the Whistleblower Statute only protects public employees who report misconduct that has actually taken place.
Defendants assert that because no misconduct occurred in this case, plaintiff is not protected under the Whistleblower Statute. We believe that even assuming that no misconduct took place in this case, plaintiff may still fall under the Whistleblower Statute's protections.
The New York Legislature passed the Whistleblower Statute to, inter alia, "mak[e] it easier for an employee to report suspected abuse. New York State Executive Dept. Division for Youth, A. Indeed, in Governor Cuomo's Approval Memorandum about the Whistleblower Statute, he made clear that "the employee need not be right that a violation has in fact occurred but is protected if the employee reasonably believed that a violation had occurred.
Thus, the question in this case becomes, was it reasonable for the plaintiff to believe that Ms. Dukes committed an act which constituted "improper governmental action" within the meaning of the Whistleblower Statute? Given the factual record in this case, and reading the record in the light most favorable to the plaintiff, we cannot conclude that it was unreasonable for Cucchi to report her suspicions about Ms.
Therefore, defendants motion for summary judgment on plaintiff's Whistleblower claim is denied. Intentional and Negligent Infliction of Emotional Distress Plaintiff's tenth claim for relief alleges that OTB "has intentionally and negligently inflicted emotional distress upon plaintiff. Chase Manhattan Bank, F. See Ford v. Village Imports, Ltd. The termination of an employee does not give rise to a claim for negligent infliction of emotional distress because a corporation owes the same duties to all employees.
Kelly, F. In the instant case, plaintiff maintains that there existed a special relationship between the plaintiff and the defendant because plaintiff was home on maternity leave when she was fired. However, that relationship is not unique to plaintiff as maternity leave is apparently available to other OTB employees. Therefore, we find plaintiff's argument with respect to a special relationship with OTB to be meritless. In sum, reading the record in light most favorable to the plaintiff, we conclude that she has failed under New York Law to satisfy the requirements of a negligent infliction of emotional distress claim.
Accordingly, defendants' motion for summary judgment on plaintiff's negligent infliction of emotional distress claim is granted. American Home Prod. The plaintiff in Murphy alleged that he was fired because of his age and because he had reported management improprieties.
Despite these facts, the Court of Appeals held that the plaintiff did not state a claim for intentional infliction of emotional distress. In the case before us, plaintiff's allegations of outrageous behavior amount to the following: 1 she was fired soon after having a child; 2 that an article about her intention to sue OTB appeared in a newspaper; and 3 that she was fired for retaliatory and discriminatory reasons in violation of various state and federal laws.
Even assuming all of these allegations are true, they do not begin to approach the strict standard of outrageous behavior that is needed to prove an intentional infliction of emotional distress claim under New York law. See Murphy, supra; Hoheb v. Pathology Associates, A. Citibank, F. Accordingly, defendants' motion for summary judgment on plaintiff's intentional infliction of emotional distress claim is granted.
Defamation Plaintiff has indicated that she does not oppose defendants' motion for summary judgment on her defamation claim. Accordingly, defendants' motion for summary judgment on this claim is granted. Ultra Vires Claim In her twelfth claim for relief, plaintiff asserts that defendants acted ultra vires when they terminated plaintiff's employment without official board of directors' action.
Plaintiff claims that by firing plaintiff without Board action, defendants violated "the statutes of the State of New York relating to corporations. Whether plaintiff's twelfth cause of action is making an ultra vires claim or a promissory estoppel claim, defendants' motion for summary judgment on plaintiff's twelfth claim for relief must be granted.
Plaintiff has not stated in her complaint or in her briefs the New York Statutes upon which she is relying for her ultra vires claim. The most relevant New York statute seems to be N. However, any reliance on this statute by plaintiff must fail because the statute only permits a right of action by a shareholder of a corporation, "by or in the right of the corporation to procure a judgment in its favor against an incumbent or former officer director of the corporation for loss or damage due to his unauthorized act," and by the attorney-general.
Brooklyn Union Gas Co. First of all, plaintiff never raised a promissory estoppel claim in her complaint. For this reason alone, defendants' motion for summary judgment on this claim should be granted. Uslife Corp. Richardson Greenshields Securities, Inc. Fairfield-Noble Corp. Moreover, "[t]he choice to forego current employment because of rosy promises" does not render the circumstances so unconscionable that the plaintiff may assert promissory estoppel.
Ginsberg, N. Therefore, plaintiff's mere assertion that she left her previous job in reliance on Sarah Jo Hamilton's promise that plaintiff could only be fired by the Board of Director's, is insufficient to allow plaintiff to utilize promissory estoppel. Accordingly, defendants' motion for summary judgment on plaintiff's promissory estoppel claim is granted. Conclusion Defendants' motion for summary judgment on plaintiff's contract claim, due process claim, privacy claim, defamation claim, intentional and negligent infliction of emotional distress claims, ultra vires claim, and promissory estoppel claim is granted.
Defendants' motion for summary judgment on plaintiff's Whistleblower Statute claim is denied. Plaintiff's cross motion for partial summary judgment is denied in its entirety. Requirements of this position include but are not limited to: Punching bets in a timely and accurate fashion. Administrative office duties such as printing, copying and faxing misc.
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