Pepler v Rugged Land, LLC

[*1] Pepler v Rugged Land, LLC 2006 NY Slip Op 51482(U) [12 Misc 3d 1187(A)] Decided on January 4, 2006 Supreme Court, New York County Kapnick, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 4, 2006
Supreme Court, New York County

Jeanine Pepler, Plaintiff,

against

Rugged Land, LLC, Webster Stone, Shawn Coyne and John Does 1-5, Defendants.



102519/05

Barbara R. Kapnick, J.

Plaintiff, Jeanine Pepler, alleges in her Complaint that she was hired on or about June 16, 2003 by defendant Rugged Land, LLC ("Rugged Land"), a publisher of both fiction and non-fiction books, to be its Director of Publicity. Defendants Webster Stone and Shawn Coyne are the managing members of Rugged Land. She further claims that defendants terminated her employment on January 14, 2005 "for the sole reason that she had thyroid cancer."

Only five weeks earlier, on December 7, 2004, Stone had sent plaintiff a very complimentary e-mail stating, among other things: "You have done a remarkable job. ... Overall your commitment and performance have been terrific", and informing her that she would receive a $3,500 bonus, "the highest bonus paid out here."

That same day, plaintiff was diagnosed with thyroid cancer, of which she informed Stone. During the course of the following week, plaintiff worked at her office for approximately half a day, and, with Stone's permission, worked from home for the remainder of the time.

On December 14, 2004, plaintiff underwent an emergency thyroidectomy. As a result of trauma arising from the surgery, plaintiff's left vocal chord was totally paralyzed. Plaintiff's voice became almost inaudible, and she frequently choked. After having been discharged from the hospital's Intensive Care Unit on December 15, 2004, plaintiff returned to the Emergency Room on December 16, because she was having difficulty breathing. Between December 16 and December 23, plaintiff continued to work at home.

On December 23, 2004, plaintiff flew to South Africa for an almost three-week visit with her parents, a vacation that had been planned and approved prior to plaintiff's diagnosis and surgery. Plaintiff returned to New York on January 10, 2005, and went directly to her office where she remained for several hours. For the remainder of the time relevant to this action, plaintiff had repeated radioactive iodine scans and radiation treatments, and she continued to suffer from highly restricted speech ability, and from difficulty in breathing.

On January 11, 2005, after having had a scan in the morning, plaintiff went to her office for a meeting with Stone and Matthew Modine whose forthcoming book plaintiff would be publicizing. Stone appeared to be "horrified" by plaintiff's "raspy, throaty and haggard voice". On both January 12 and January 13, plaintiff worked for half a day. [*2]

On Friday, January 14, 2005 at approximately 6:00 p.m., Stone summoned plaintiff to the Rugged Land conference room and apparently told her that he and Coyne believed that she was unhappy with her job, and that they had decided to terminate her. Plaintiff protested that she was dealing with a major life shock, and that she was looking forward to returning to her work, but was told that defendants had already made up their minds. Shortly after terminating plaintiff, Stone allegedly quipped to Rugged Land employees that they should call him "the Terminator".

Thereafter, in an interview with a reporter for PAGE SIX' of The New York Post, Stone stated that he had fired plaintiff "because she has a lousy work ethic," and that plaintiff "was the highest paid person in the company who did the least amount of work."

In this action, plaintiff is now seeking to recover damages (I) against defendants Rugged Land, Stone, and Coyne for wrongful termination in violation of New York State Executive Law § 296 (first, second and third causes of action, respectively); (ii) against defendant Rugged Land for wrongful termination in violation of New York City Administrative Code § 8-107 (fourth cause of action); (iii) against defendants Rugged Land and Stone for libel per se (fifth cause of action); and (iv) against all three defendants for intentional infliction of emotional distress (sixth cause of action).

Defendants now move to dismiss plaintiff's Complaint, pursuant to CPLR §§ 3211(a)(7), on the grounds that:

(a) the third cause of action which is asserted against defendant Coyne for alleged violation of Executive Law § 296 must be dismissed, along with the sixth cause of action as to Coyne, because there is no allegation in the Complaint that he actually participated in plaintiff's termination or any act of discrimination against her;

(b) the first through fourth causes of action must be dismissed because plaintiff fails to state a prima facie case of disability discrimination - i.e., the Complaint fails to allege that she could perform the essential functions of her job with or without accommodation, and fails to adequately allege discriminatory animus towards her because of her cancer or because of the after effects of her surgery;

the fifth cause of action for libel per se must be dismissed because Stone's comments are protected as pure opinion;

(d) the sixth cause of action for intentional infliction of emotional distress must be dismissed because (I) the actions are not sufficiently atrocious, outrageous and extreme or beyond the bounds of human decency, and (ii) said claim is duplicative of plaintiff's claim for punitive damages under the New York City Administrative Code; and

(e) plaintiff's claim for punitive damages in the fourth, fifth and sixth causes of action must be dismissed because the alleged conduct was not part of a pattern of similar conduct directed at the public generally.

Executive Law § 296(1)(a) (Human Rights Law) provides in relevant part that 1. It shall be an unlawful discriminatory practice:(a) For an employer or licensing agency, because of the age, race, creed, color, national origin, sexual orientation, military status, sex, disability, genetic disposition or carrier status, or marital status of any individual, to refuse to hire or [*3]employ or to bar or to discharge from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.

New York City Administrative Code § 8-107(1)(a) similarly provides, in relevant part, that 1. ... It shall be an unlawful discriminatory practice:(a) For an employer or an employee or agent thereof, because of the actual or perceived age, race, creed, color, national origin, gender, disability, marital status, sexual orientation or alienage or citizenship status of any person, to refuse to hire or employ or to bar or to discharge from employment such person or to discriminate against such person in compensation or in terms, conditions or privileges of employment.

Executive Law § 292 (21) defines "disability," in relevant part, as: (a) a physical, mental or medical impairment resulting from anatomical, physiological, genetic or neurological conditions which prevents the exercise of a normal bodily function or is demonstrable by medically accepted clinical or laboratory diagnostic techniques or (b) a record of such impairment or a condition regarded by others as such an impairment, provided, however, that in all provisions of this article dealing with employment, the term shall be limited to disabilities which, upon the provision of reasonable accommodations, do not prevent the complainant from performing in a reasonable manner the activities involved in the job or occupation sought or held.

To make out a prima facie claim of discriminatory discharge on the basis of disability under either the Executive Law or the Administrative Code, a plaintiff must show that he or she suffered from a disability, and that the disability caused the behavior for which the individual was terminated. Matter of McEniry v Landi, 84 NY2d 554, 558 (1994). "Once a prima facie case is established, the burden of proof shifts to the employer to demonstrate that the disability prevented the employee from performing the duties of the job in a reasonable manner or that the employee's termination was motivated by a legitimate, nondiscriminatory reason. (citations omitted)" Id. at 558. The inquiry as to whether the employee could perform the duties of the job "must focus on [plaintiff's] status as of the time of actual termination and not earlier (citations omitted)" Id. at 560.

Citing Matter of McEniry v Landi, supra, defendants argue that plaintiff has failed to make out a prima facie case, inasmuch as it is undisputed that she neither had, nor was perceived to have, cancer at the time that she was terminated. This argument fails for two reasons. First, in McEniry, plaintiff was not suffering from a disability at the time that he was terminated. He was a rehabilitated former alcoholic who was terminated for having often been absent during the time that he had been an alcoholic.

An employer is not free to fire a person because of the person's disability, simply because the person no longer has the disability. The causal nexus that is required for a prima facie case of discriminatory discharge on the basis of disability is between a plaintiff's disability and the basis for plaintiff's termination. Id. at 559. What must be considered as of the time of termination is not whether plaintiff is disabled but whether plaintiff can do the job. Accordingly, the fact that plaintiff did not have cancer at the time that she was terminated is not a reason to dismiss her claims of discrimination. [*4]

Secondly, the factual allegations in the complaint allege that plaintiff was terminated because of Stone's reaction to the abnormal nature of plaintiff's voice, a direct consequence of the paralysis of her left vocal chord as a result of her thyroidectomy. That paralysis is a "physical ... or medical impairment resulting from ... physiological ... conditions which prevents the exercise of a normal bodily function." Executive Law § 292 (21). See Mullen v City of New York, 2003 WL 21511952 (S.D.NY 2003) (significant limitation on ability to speak is disability under Executive Law § 296).

Genesky v Local 1000, AFSCME, AFL-CIO, CSEA (287 AD2d 594 [2d Dep't 2001]), and Sirota v New York City Board of Edu. (283 AD2d 369 [1st Dept 2001]), upon which defendants rely, are inapposite. In those cases, both of which involved motions for summary judgment, plaintiffs had failed to show that their surgeries (and, in Mr. Genesky's case, his subsequent radiation therapy) had impaired their ability to do their jobs. Here, by contrast, plaintiff has alleged that while she was ready and able to continue her work, the partial destruction of her voice was an impairment, and that that impairment was the reason why Stone fired her.

The individual defendants also argue that the causes of action alleged against them individually must be dismissed by virtue of Limited Liability Company Law § 609 (a), which provides in relevant part that: [n]either a member of a limited liability company, a manager of a limited liability company managed by a manager or managers nor an agent of a limited liability company ... is liable for any debts, obligations or liabilities of the limited liability company or each other, whether arising in tort, contract or otherwise, solely by reason of being such member, manager or agent or acting (or omitting to act) in such capacities or participating ... in the conduct of the business of the limited liability company.

While that section insulates members of a limited liability company from personal responsibility for the obligations of the company (Collins v E-Magine, LLC, 291 AD2d 350 [1st Dept 2002], lv. to app. denied, 98 NY2d 605 [2002]), it does not bar a claim that such a member personally committed a tort in furtherance of such company's business. Rothstein v Equity Ventures, LLC, 299 AD2d 472 (2d Dep't 2002). See also, Retropolis, Inc. v. 14th Street Development LLC, 17 AD3d 209 (1st Dep't 2005). Accordingly, the second cause of action asserted as against defendant Stone will not be dismissed.

However, plaintiff's third cause of action asserted against defendant Coyne must be dismissed, because the complaint fails to allege any facts showing that Coyne participated in the conduct giving rise to plaintiff's discrimination claim. See e.g. Ross v Mitsui Fudosan, Inc., 2 F Supp 2d 522 (S.D.NY 1998).

Defendants next move to dismiss plaintiff's fifth cause of action against Rugged Land and Stone for libel per se on the ground that the statement made in the context of a gossip column (namely, PAGE SIX' of The New York Post) that plaintiff has "a lousy work ethic" is an ambiguous and indefinite statement of opinion, which, accordingly, does not constitute libel. See Steinhilber v Alphonse, 68 NY2d 283, 286 (1986). ("It is a settled rule that expressions of an opinion false or not, libelous or not' are constitutionally protected and may not be the subject of private damage actions' [citation omitted].") Defendants further argue that the subsequent statement that plaintiff "was the highest paid person at the company, who did the least amount of work" is completely vague as to how plaintiff's work, and that of other employees, was measured. [*5]

However, even in cases where a statement falls within the protective shield of expressions of opinion, such opinions will lose their protection and become actionable where the "statement of opinion implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it" (Steinhilber v Alphonse, 68 NY2d at 289, ... citing Hotchner v Castillo-Puche, 551 F.2d 910, 913 [2d Cir 1977], cert. denied sub. nom. Hotchner v Doubleday & Co., 434 U.S. 834 [1977]) ... These are known as "mixed opinion[s]" (Steinhilber v. Alphonse, 68 NY2d at 290 ... ), and are actionable not because of the false opinion itself, but rather because of "the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking" (citation omitted).

Guerrero v. Carva, 10 AD3d 105, 112 (1st Dep't 2004).

This Court finds that "[t]he challenged statements, although expressing opinions, are actionable because an average reader rationally could have construed them (citation omitted) to imply that the opinions being expressed were based on detrimental facts that were known to the speaker" (i.e., defendant Stone), "but which facts were not disclosed to the audience (citations omitted)." People of the State of New York v. Grasso, 21 AD3d 851, 852 (1st Dep't 2005).

Moreover, the challenged statements are "reasonably susceptible of a defamatory meaning" since they tend to disparage plaintiff in her profession as a publicist. See, Guerrero v. Carva, supra at 113.

Accordingly, that portion of the motion seeking to dismiss the fifth cause of action must be denied.

Plaintiff's sixth cause of action seeks an award of damages against all the defendants for intentional infliction of emotional distress, alleging that the individual defendants' conduct "was so outrageous as to transcend all bounds of decency and be regarded as atrocious and intolerable in civilized society." However, "[i]ntentional infliction of emotional distress is a theory of recovery that is to be invoked only as a last resort." In this case, emotional damages are available under the theory of wrongful termination pursuant to the NYC Human Rights Law (Administrative Code Of The City of New York § 8-107[1][a]). Thus "there is no reason to apply the theory where an applicable statute expressly provides for the recovery of damages for emotional distress (citations omitted)." McIntyre v. Manhattan Ford, Lincoln Mercury, 256 AD2d 269, 270 [1st Dep't 1998], app. dism'd, 93 NY2d 919 [1999], lv. to app. den, 94 NY2d 753 [1999]. See also, Conde v. Yeshiva University, 16 AD3d 185 (1st Dep't 2005). Therefore, the sixth cause of action must be dismissed.

Finally, defendants seek to dismiss plaintiff's request for punitive damages contained in the fourth and fifth causes of action.[FN1] However, at this early stage of the proceedings, prior to defendants' serving an Answer or the parties conducting any discovery, it is premature to determine whether the conduct alleged was part of a pattern of similar conduct directed at the public generally. [*6]

Accordingly, it is hereby

ORDERED that the motion to dismiss is granted only to the extent of dismissing the third and sixth causes of action in the Complaint. Consequently, the Complaint is dismissed for all purposes against defendant Shawn Coyne, and the Clerk is directed to enter judgment dismissing the action as against defendant Shawn Coyne only with prejudice and without costs or disbursements, and it is further

ORDERED that the first, second, fourth and fifth causes of action against defendants Rugged Land and Stone are severed and continued; and it is further

ORDERED that defendants Rugged Land, LLC and Webster Stone are directed to serve an Answer to the remaining causes of action in the Complaint within 20 days after service of a copy of this Decision/Order with Notice of Entry.

Counsel shall appear for a preliminary conference in IA Part 12, 60 Centre Street, Room 341 on March 1, 2006 at 9:30 a.m.

This constitutes the decision and order of this Court.

Date: January , 2006 _________________________

Barbara R. Kapnick

J.S.C.

Footnotes

Footnote 1:A request for punitive damages is also included in plaintiff's sixth cause of action, but that cause of action has been dismissed, supra, on other grounds.