622 F.3d 104 (2nd Cir. 2010), 09-2821-cv, DiFolco v. MSNBC Cable L.L.C.

Docket Nº:09-2821-cv.
Citation:622 F.3d 104
Opinion Judge:MINER, Circuit Judge:
Party Name:Claudia DiFOLCO, Plaintiff-Appellant, v. MSNBC CABLE L.L.C., Rick Kaplan, and Scott Leon, Defendants-Appellees, v. Cassandra Brownstein, Defendant.
Attorney:Scott Browning Gilly (Gregory N. Filosa, on the brief), Thompson, Wigdor & Gilly, LLP, New York, NY, for Plaintiff-Appellant. Julie Rikelman, NBC Universal, Inc., New York, NY, for Appellee.
Judge Panel:Before: MINER and LYNCH, Circuit Judges, and TRAGER, District Judge.
Case Date:October 07, 2010
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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622 F.3d 104 (2nd Cir. 2010)

Claudia DiFOLCO, Plaintiff-Appellant,


MSNBC CABLE L.L.C., Rick Kaplan, and Scott Leon, Defendants-Appellees,


Cassandra Brownstein, Defendant. [*]

No. 09-2821-cv.

United States Court of Appeals, Second Circuit.

October 7, 2010

Submitted: May 6, 2010.

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[Copyrighted Material Omitted]

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Scott Browning Gilly (Gregory N. Filosa, on the brief), Thompson, Wigdor & Gilly, LLP, New York, NY, for Plaintiff-Appellant.

Julie Rikelman, NBC Universal, Inc., New York, NY, for Appellee.

Before: MINER and LYNCH, Circuit Judges, and TRAGER, District Judge. [**]

MINER, Circuit Judge:

Plaintiff-appellant Claudia DiFolco (" DiFolco" ) appeals from so much of an order entered on March 30, 2007, in the United States District Court for the Southern District of New York (Preska, Ch. J. ), as dismissed, for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), her causes of action for breach of contract (and related New York Labor Law violations), defamation, and tortious interference with prospective business relations. The causes of action pleaded arose out of DiFolco's employment by defendant-appellee MSNBC L.L.C. (" MSNBC" ) as an entertainment reporter, correspondent, and anchor. Defendant-appellee Rick Kaplan (" Kaplan" ) was President of MSNBC and defendant-appellee Scott Leon (" Leon" ) was an Executive Producer at MSNBC.1

In dismissing the causes of action, the District Court determined, inter alia, that: DiFolco repudiated her contract with MSNBC and therefore could not prevail on her breach of contract or New York Labor Law claims; two of the three defamation claims were barred by the defense of truth, and the third consisted of non-actionable opinion; and the tortious interference claim failed for reliance on the defamation claims as the wrongful acts giving rise to it. See DiFolco v. MSNBC Cable, No. 06 Civ. 4728(LAP), 2007 WL 959085, at *3-4, 5, 8 (S.D.N.Y. March 30, 2007). For the reasons that follow, we affirm in part, vacate in part, and remand in part as to so much of the order of the District Court as is the subject of this appeal.


I. The Course of Employment

DiFolco and MSNBC entered into a two-year employment agreement on December 2, 2004. The written agreement, signed on behalf of MSNBC by Kaplan, provided that the two-year term would commence on January 17, 2005. DiFolco, designated in the agreement as " Artist," agreed to employment " as an anchor/co-anchor, commentator, correspondent, reporter and/or analyst and in any other like capacity for MSNBC." With regard to the period of employment, the agreement provided as follows:

The term hereof shall be divided into two (2) consecutive cycles of fifty-two (52) weeks each. MSNBC shall have the right to terminate this Agreement effective at the end of the first cycle by giving Artist written notice not less than sixty (60) days prior to the end of such cycle. This Agreement shall automatically terminate at the end of the second cycle without notice, unless the parties agree otherwise.

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The Agreement established DiFolco's compensation during the two cycles as well as other terms and conditions of employment, including those contained in an attachment designated " Standard Provisions."

DiFolco asserts that she was first hired to be the Los Angeles-based correspondent for two new entertainment shows-" MSNBC at the Movies" and " MSNBC Entertainment Hot List." As such, she was responsible for conducting interviews and covering entertainment events. During the course of her employment she filled in as host on the shows and appeared on other MSNBC programs as well. DiFolco alleges in her complaint that she

performed all of her professional obligations in an exemplary manner, attended every shoot for which she was scheduled, traveled between the two coasts for MSNBC assignments (at her own expense without reimbursement by the Company), and always made herself available for and completed the work requested of her to the satisfaction of MSNBC and her managers.

Despite her close attention to the performance of her assigned duties, DiFolco alleges that she was " subjected to repeated mistreatment and abuse that created intolerable working conditions." She asserts in effect that Leon, her Executive Producer, and Cassandra Brownstein, her Producer, conspired to make her life miserable: that they " began a concerted pattern of harassing Ms. DiFolco, including repeatedly cancelling Ms. DiFolco's scheduled shoots without justification or notice to Ms. DiFolco, in order to further damage her reputation and career with the Company." Leon became especially irate after Kaplan requested that she do some work on a prime time program despite the fact that there would have been no interference with the existing shows. According to DiFolco, Leon went so far as to falsely report that she missed a shoot while testing for the prime time show. Moreover, Leon never responded to DiFolco's email regarding her harassment by Brownstein, including Brownstein's alleged misrepresentation regarding the timing of seven voiceovers.

II. Termination of Employment-the Allegations

In an e-mail dated August 23, 2005, DiFolco requested a meeting with Kaplan, proposing a date the following week when she would travel to New Jersey for the meeting. The following allegations of the complaint pertain to the contents of that email and to the correspondence that followed:

38. While she expressed her hopes to have maintained a productive working relationship with the Company and " be a part of [Kaplan's] team for a long time to come," Ms. DiFolco realized the Defendants Leon and Brownstein continued to cancel her shoots and force her off the air. As such, she indicated to Defendant Kaplan that they should " discuss [her] exit from the shows." This was Ms. DiFolco's way of expressing to Kaplan her desire not to disrupt the shows on which she worked.

39. Defendant Kaplan agreed to meet with her as proposed to further discuss the matters raised in her email.

40. That same day, Ms. DiFolco informed Defendant Leon that she planned to meet with Defendant Kaplan on September 1, 2005. She also stated that she hoped to record the shows for early September out of New Jersey since she had to be in New York to cover " Fashion Week," noting that it would save the Company time and money on airfare if she simply remained on the East coast for that entire time period.

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Defendant Leon agreed to this arrangement.

41. The next day, on August 24, 2005, Defendant Leon responded by abruptly informing her that they " decided to change the direction of the fashion week coverage" and planned to send the New York Times style editor to cover the shows instead of Ms. DiFolco.

42. Ms. DiFolco immediately contacted Defendant Kaplan, forwarding Defendant Leon's most recent example of his ongoing effort to force her off the air and asked to know why she was being taken off the scheduled shoots. She specifically inquired whether Defendant Kaplan had made Defendant Leon aware of her previous request for a meeting, fearing that Defendant Leon had canceled her participation in Fashion Week in retaliation for approaching his superior and that her email would be misinterpreted.

43. Ms. DiFolco clearly expressed that " [she] did not resign yesterday" and confirmed their agreed meeting scheduled for September 1, 2005.

44. Defendant Kaplan acknowledged that he made Defendant Leon aware of her previous email. His email stated, " My complete impression is that you have resigned," and then continued, " sooner is better since your obvious intent is to leave."

45. While Ms. DiFolco was in flight from California, Defendant Leon left her a voicemail message that her meeting with Kaplan was canceled. At the same time, Defendant MSNBC sent Ms. DiFolco a proposed separation and release agreement through her agent, claiming that she had resigned.

DiFolco claims that the termination of her employment in the...

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