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stating that a finding of personal animus is necessary to establish common-law malice
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99 Civ. 10144 (NRB)
May 31, 2000
OPINION AND ORDER
Plaintiff Areta E. Brattis ("plaintiff" or "Brattis") filed this suit in diversity against defendants Rainbow Advertising Holdings, L.L.C. ("Rainbow") and Fox Sports Ad Sales Holdings, L.L.C. ("Fox") (collectively, "defendants") on September 30, 1999. In brief, plaintiff alleges that she was defamed by her former employers at Fox/Liberty Networks, a joint venture of Rainbow and Fox, by the publication of two documents: a January 2, 1999 "Exempt Performance Evaluation" and an April 19, 1999 Memorandum. Currently pending is defendants' motion to dismiss the complaint for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons stated herein, defendants' motion is granted.
FACTS
Defendants' unrebutted recitation of the facts, drawn solely from plaintiff's complaint, serves to provide much of the relevant background:
According to the Amended Complaint, plaintiff was employed by defendants for less than a year. Plaintiff was hired in June 1998 by Peter Polomino ["Polomino"], Vice President of finance/advertising sales, an acquaintance of plaintiff's from a previous employer. Mr. Polomino left the company in August 1998, shortly after plaintiff's arrival.
Defendants' Memorandum of Law in Support of Motion to Dismiss Amended Complaint ("Def. Mem.") pp. 2-3 (internal citations to plaintiff's amended complaint omitted). Upon Polomino's departure, plaintiff "succeeded to his position, undertaking to perform the work previously assigned to him, as well as work already assigned [to] and performed by her." Amended Complaint ("Am. Comp.") ¶ 19. At the end of 1998, plaintiff received an increase in compensation and a bonus. Id. ¶ 20.
In January of 1999, however, the defendants' New York offices were visited by Dennis Farrell, a senior vice president for finance with the company's Los Angeles office. Am. Comp. ¶ 21. Plaintiff had never "had a direct personal meeting with" or worked with Farrell before that time. Id. ¶ 22. He informed plaintiff that the company had hired Joseph Senande ("Senande"), a new vice president who was to replace Polomino as of February of 1999. Id. ¶ 21, 23. Farrell introduced plaintiff to Senande, who told Brattis that he intended to "bring in my own people to insure my success." Id. ¶ 23.
To continue with defendants' narrative recounting of the complaint:
In January 1999, plaintiff received a performance review from [Farrell]. In the Amended Complaint, plaintiff identifies specific portions of Farrell's performance evaluation that she contends are false and defamatory. For example, Mr. Farrell wrote "[t]here is a general impression that you are not getting all aspects of the Business mjrs job done satisfactorily," "I questioned with [sic] Areta's commitment, focus, and dedication to the job," and "My impression is that Areta requires a significant amount of direction and guidance." While not excerpted in the text of the Amended Complaint, Exhibit 1 thereto also shows that Mr. Farrell made some encouraging statements, such as: "I believe Areta can get focused and motivated with the new V.P. Finance."
Plaintiff alleges that the evaluation was "published and distributed to Joe Senande [her future supervisor] Gloria Dickey [Human Resources] as well as to others in the employ of defendants."
In February 1999, following the performance evaluation by Mr. Farrell, Mr. Senande commenced his employment with the company and became plaintiff's supervisor. Plaintiff contends (without specifics) that, once Mr. Senande became her supervisor, he embarked upon a "campaign of falsely criticizing, denigrating, insulting and belittling" her in order to induce her to quit her job.
In April 1999, Mr. Senande wrote a "Performance Review/Assessment" memorandum to plaintiff to outline "some significant performance issues." In the memorandum, Mr. Senande expressed his views, inter alia, that plaintiff was uncooperative, handled confidential salary information in an unprofessional manner, did not prepare for meetings, missed deadlines and lacked technical skills. Plaintiff claims that this memorandum was also false and defamatory and alleges . . . that it was "published and distributed throughout the office."
Plaintiff alleges that her employment was terminated on April 30, 1999, and that she was escorted out of the office and had her credentials taken away.
Def. Mem. at 3-4 (citations omitted)
DISCUSSION
I. Standard for Motion to Dismiss
On a motion to dismiss pursuant to Rule 12(b)(6), the allegations in the complaint are accepted as true and all reasonable inferences are construed in the plaintiff's favor. See Gant v. Wallingford Bd. of Educ., 69 F.3d 669, 673 (2d Cir. 1995); Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994);Gaston v. Gavin, No. 97 Civ. 1645, 1998 WL 7217, *1 (S.D.N Y Jan.8, 1998) In deciding the motion, the Court can consider documents referenced in the complaint and documents that are in the plaintiff's possession or that the plaintiff knew of and relied on in bringing suit. See Brass v. Am. Film Techn., Inc., 987 F.2d 142, 150 (2d Cir. 1993); Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47-48 (2d Cir. 1991); I. Meyer Pincus Assoc., P.C. v. Oppenheimer Co., Inc., 936 F.2d 759, 762 (2d Cir. 1991).
"The [C]ourt's function on a Rule 12(b)(6) motion is not to weigh the evidence that might be presented at a trial but merely to determine whether the complaint itself is legally sufficient."Festa v. Local 3 Int'l Bhd. of Elec. Workers, 905 F.2d 35, 37 (2d Cir. 1990); Gaston, 1998 WL 7217 at *1. Thus, the Court should dismiss the complaint only if "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim, which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-6 (1957); Valmonte v. Bane, 18 F.3d 992, 998 (2d Cir. 1994); Gaston, 1998 WL 7217 at *1.
II. Defamation
Libel is a method of defamation expressed in writing or print.Celle v. Filipino Reporter Enterprises, Inc., 209 F.3d 163, 176 (2d Cir. 2000). Under New York law, a plaintiff seeking damages for libel must plead and prove five elements: (1) a defamatory statement of fact about the plaintiff; (2) publication to a third party; (3) fault; (4) falsity of the defamatory statement; and (5) special damages or actionability per se. Id. In this case, plaintiff alleges that defendants' written statements are actionable per se because they "disparage [her] in the way of [her] office, profession, or trade." Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Dismiss Complaint ("Pl. Mem.") at 4 (quoting Davis v. Ross, 754 F.2d 80, 82 (2d Cir. 1985)).
"Federal courts exercising diversity jurisdiction apply the choice of law rules of the forum state, here New York, to decide which state's substantive law governs." Id. at 175 (citing, inter alia, Klaxon v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496 (1941)). In a libel action such as this one, "New York assumes that the state of the plaintiff's domicile will usually have the most significant interest in the case and that its law should therefore govern." Id. Here, the plaintiff is "a citizen, resident and domiciliary of the City, County, State, and Southern District of New York." Am. Comp. ¶ 3. In addition, all the allegedly defamatory documents were written and published in defendants' New York office. Am. comp. ¶¶ 16, 21, 24, 28. As a result, New York substantive law controls.
A finding of fault is equivalent to either negligence or actual malice, depending on the status of the libeled party.Id.
As an initial matter, though, the threshold issue of "[w]hether particular words are defamatory presents a legal question to be resolved by the court[s] in the first instance." Celle, 209 F.3d at 177 (quoting Aronson v. Wiersma, 65 N.Y.2d 592, 593-94, 493 N.Y.S.2d 1006, 483 N.E.2d 1138, 1139 (1985)). The Second Circuit has recently restated three standards that the New York Court of Appeals has developed, and that federal courts follow, in determining whether a statement or publication is defamatory. Id. First, courts "must give the disputed language a fair reading in the context of the publication as a whole." Id. (citing Armstrong v. Simon Schuster, Inc., 85 N.Y.2d 373, 625 N.Y.S.2d 477, 649 N.E.2d 825, 829 (1995)). Second, courts are not to "strain to interpret such writings in their mildest and most inoffensive sense to hold them nonlibelous." Id. (citing November v. Time. Inc., 13 N.Y.2d 175, 244 N.Y.S.2d 309, 194 N.E.2d 126, 128 (1963)) (internal quotation marks omitted). Finally, "the words are to be construed not with the close precision expected from lawyers and judges but as they would be read and understood by the public to which they are addressed." Id. at 177-78.
In this case, defendants contend that the statements at issue in the January 2, 1999 evaluation and the April 19, 1999 memorandum cannot be found to be defamatory as a matter of law. First, they argue that the contents of those two documents fall into the category of "opinion", which "false or not, libelous or not, are constitutionally protected and may not be the subject of private damage actions." Def. Mem. at 4-6 (quoting Williams v. Varig Brazilian Airlines, 169 A.D.2d 434, 438, 564 N.Y.S.2d 328, 331 (1st Dep't 1991) appeal denied, 78 N.Y.2d 854, 573 N.Y.S.2d 467, 577 N.E.2d 1059 (1991)). Second, defendants maintain that the two documents, as "evaluations of employees made by their supervisors[,] enjoy qualified privilege in defamation actions." Def. Mem. at 7-8 (quoting Shamley v. ITT Corp., 869 F.2d 167, 173 (2d Cir. 1989)). The court will address both contentions in turn.
A. Opinion
Unlike the Federal Constitution, the New York Constitution provides for absolute protection of opinions. Celle, 209 P.3d at 178 (collecting cases). It is up to the Court to decide as a matter of law whether the challenged statement is fact or opinion. Id. (citing Rinaldi v. Holt, Rinehart Winston, 42 N.Y.2d 369, 397 N.Y.S.2d 943, 366 N.E.2d 1299, 1306 (1977)). The "essential task is to decide whether the words complained of, considered in the context of the entire communication and of the circumstances in which they were . . . written, may be reasonably understood as implying the assertion of undisclosed facts justifying the opinion." Id. (quoting Steinhilber v. Alphonse, 68 N.Y.2d 283, 508 N.Y.S.2d 901, 501 N.E.2d 550, 552-53 (1986)). If the statement reasonably would be understood as implying undisclosed facts then it is not protected opinion under New York's constitution. Id. The burden rests with the plaintiff to establish that in the context of the entire communication a disputed statement is not protected opinion. Id. at 179.
Under New York law, the evaluation of an employee's performance, even an unsatisfactory evaluation, is a matter of opinion that cannot be objectively categorized as true or false and cannot be actionable. See McDowell v. Dart, 201 A.D.2d 895, 607 N.Y.S.2d 755 (4th Dep't 1994) (reciting the "rule that statements made by an employer regarding an employee's work performance are opinion and thus are not actionable"). As one court put it, "[i]n our view[,] statements criticizing the plaintiff's performance and comparing her unfavorably to other [employees] are, as a matter of law, nonactionable expressions of opinion." Miller v. Richman, 184 A.D.2d 191, 193, 592 N.Y.S.2d 201, 203 (4th Dep't 1992) (collecting cases). See also Tasso v. Platinum Guild Int'l, No. 94 Civ. 8288, 1998 WL 841489, at *5-6 (S.D.N.Y. Dec. 3, 1998) (finding statements that plaintiff was "unethical, untrustworthy and unprofessional" and "incompetent," to be non-actionable opinion) Gavenda v. Orleans County, No. 95 Civ. 0215E, 1997 WL 65870, at *8, (W.D.N.Y. Feb. 10, 1997) (finding statements that plaintiff was "incompetent," and "there had been problems with her before and she wasn't doing her job right" were non-actionable statements of opinion); Aronson, 65 N Y2d at 59, 493 N.Y.S.2d 1006, 483 N.E.2d at 1139 (holding that an expression of unhappiness with an employee's performance is not libelous as a matter of law); Williams, 169 A.D.2d at 438, 564 N.Y.S.2d at 331 (finding that statements "concerning plaintiff's work and attitude are expressions of opinion which, as a matter of law, do not constitute defamatory statements").
The January 2, 1999 "Exempt Performance Evaluation" and an April 19, 1999 Memorandum clearly fall into the category of nonactionable opinion. For the most part, the evaluation offers plaintiff's new supervisor's evaluation of where she fit on a four part scale from "immediate improvement" to "exceeds requirements." Am. Comp. Ex. 1. Brattis' evaluation does not show a score any worse than "needs development." Id. Plaintiff takes greater issue with the comments written into the evaluation. However, the evaluation only affirmatively says that plaintiff was "challenged." Id. Other than that, it records that her new supervisor "questioned" her "commitment" and "management style," that his "impression" was that she needed direction, that he had perceived another "impression that" she was not able to perform all "aspects" of the job in a "satisfactory" manner, and that he was "astounded" in the change in her job title. In the context of the cases cited above, there is no question that these comments readily fall into the category of protected opinion.
The April 19 memorandum is a similar litany of opinions, in that case, by plaintiff's direct supervisor after he had worked with her for two months. The supervisor directly opines on various specific "performance deficiencies," such as the perception that employees "were very unhappy with how [plaintiff] handled" salary discussions, that questions that she had asked were "inappropriate," and that he was "overall disappointed" with plaintiff's lack of preparation and technical skills. Although we are sympathetic to the plaintiff's desire to contest these critical statements about her performance, they also fall within the category of opinion that is protected by law. See, e.g.,Aronson v. Wiersma, 65 N.Y.2d at 59, 493 N.Y.S.2d 1006, 483 N.E.2d at 1139; Williams, 169 A.D.2d at 438, 564 N.Y.S.2d at 331.
B. Qualified Privilege
Even if the performance evaluation and the memorandum could be deemed to be actionable assertions of fact, defendants enjoy a qualified privilege with respect to any of their allegedly defamatory communications in this case. "[A] communication made by a person with an interest or duty to make the communication and sent to a person with a corresponding interest or duty is protected by a qualified privilege, even though without the privilege the communication would be . . . actionable." Weldy v. Piedmont Airlines. Inc., 985 F.2d 57, 62 (2d Cir. 1993) (citingOlivieri v. McDonald's Corp., 678 F. Supp. 996, 1001 (E.D.N Y 1988) (internal quotation marks omitted).
"New York courts have not been hesitant to invoke qualified privilege to protect an employer's statements made in an employment context." Payne v. Kathryn Beich Nestle, 697 F. Supp. 612, 615 (E.D.N.Y. 1988). See also Milam v. Herrlin, 819 F. Supp. 295, 303 (S.D.N.Y. 1993) (finding that qualified privilege protects communications "made in the employment context concerning the qualifications and actions of employee");McDowell, 201 A.D.2d at 895-96 (same). Further, it is well established that a supervisor has an interest and duty to communicate his evaluations of a subordinate to his supervisor.See, e.g., Miller, 184 A.D.2d at 193, 592 N.Y.S.2d at 202 ("[A]n employer has the right, without judicial interference, to assess an employee's performance on the job, since a communication . . . is protected by a qualified privilege.") (citing Williams, 169 A.D.2d at 438, 564 N.Y.S.2d at 331)
To overcome the qualified privilege defense, the plaintiff must show both that the allegedly defamatory statements were false and that the defendants abused their qualified privilege. Boyd v. Nationwide Mutual Ins. Co., 208 F.3d 406, 410 (1999). The plaintiff may demonstrate abuse of the privilege by showing that the defendants acted: (1) outside the scope of the privilege, or (2) with knowledge that the statement was false or with reckless disregard as to its truth, or (3) with common law malice. Id. (citing Weldy, 985 F.2d at 62)
In this case, plaintiff cannot demonstrate a cognizable abuse of the qualified privilege. First, the evaluation and the memorandum were not "outside the scope of the privilege" because, as plaintiff admits, they were circulated to "officials" and others "in the employ of defendants." Am. Comp. ¶¶ 27, 30. As such, the documents were only circulated to people who have an interest in the subject and were published within the bounds of a qualified privilege. See Williams, 169 A.D.2d at 438, 564 N YS.2d at 331; Mock v. LaGuardia Hosp.-Hip Hosp., Inc., 117 A.D.2d 721, 722, 498 N.Y.S.2d 446 (2d Dep't 1986)
Second, defendants' critical statements concerning plaintiff's performance also cannot be found to be an abuse of qualified privilege because they cannot "objectively be categorized as true or false and cannot be actionable." Rodriguez v. American Friends of the Hebrew Univ., No. 96 Civ. 240, 1998 WL 146227, at *9 (S.D.N.Y. Mar. 25, 1998). Plaintiff alleges that statements within the her initial evaluation were reckless because of the apparently limited investigation undertaken by her new supervisor before he wrote it. However, even assuming that the defendants' statements could be considered defamatory, "[i]t is well settled that a defendant's failure to investigate before making defamatory statements does not support a finding of actual [or] constitutional malice, even if a prudent person would have investigated." Boyd, 208 F.3d at 408 (citing Harte-Hanks Communications. Inc. v. Connaughton, 491 U.S. 657, 666-67 (1989)). Moreover, even if defendants made a tremendous mistake in their evaluation and termination of plaintiff, under New York law, she "cannot circumvent the employment-at-will rule by asserting [a] cause of action for defamation." Miller, 184 A.D.2d at 192, 592 N.Y.S.2d at 201.
Finally, plaintiff's allegation that the evaluation and the memorandum were written as part of her new supervisor's plan to "bring in my own people" does not support a finding of common law malice. Under New York law, to support a finding of common law malice, plaintiff must allege facts "sufficient to establish that the statements were consistent only with a desire to injure [her] to justify [sending] the question of malice to the jury." Samuels v. Berger, 191 A.D.2d 627, 630, 595 N.Y.S.2d 231, 233-34 (2d Dep't 1993) (quoting Fowles v. Bowen, 30 N.Y. 20, 25 (1864)) (internal quotation marks omitted). Here, at best, plaintiff's facts establish that defendants desired to replace her with someone whom defendants' held in higher regard. As the Second Circuit found in Shamley, 869 F.2d at 173, although plaintiff may describe this behavior as "malicious," "neither [her] complaint nor [her] supporting documents allege facts which support" a finding of common law malice as legal matter. See also Nyitray v. Johnson, No. 96 Civ. 6150, 1998 WL 67651, at *8-10 (finding no common law malice where there is no evidence that the allegedly defamatory letter was "motivated entirely by personal animus"). As a result, defendants' comments in the evaluation and memorandum, however hurtful, fall within the qualified privilege protected by law.
CONCLUSION
For the foregoing reasons, defendants' motion to dismiss is granted. The Clerk of the Court is directed to enter judgment in favor of the defendants and close the above captioned case.
IT IS SO ORDERED.
DATED: New York, New York May 30, 2000
NAOMI REICE BUCHWALD UNITED STATES DISTRICT JUDGE