Cucchi v. New York City Off-Track Betting Corp., No. 91 Civ. 5624 (KC).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtHillary Weisman, Asst. Corp. Counsel, New York City, for defendants
Citation818 F. Supp. 647
PartiesDiane CUCCHI, Plaintiff, v. NEW YORK CITY OFF-TRACK BETTING CORPORATION, Hazel Dukes as President of the New York City Off-Track Betting Corporation, and Edward Lewis as Chairman of the Board of Directors of the New York City Off-Track Betting Corporation, Defendants.
Docket NumberNo. 91 Civ. 5624 (KC).
Decision Date15 April 1993

818 F. Supp. 647

Diane CUCCHI, Plaintiff,
v.
NEW YORK CITY OFF-TRACK BETTING CORPORATION, Hazel Dukes as President of the New York City Off-Track Betting Corporation, and Edward Lewis as Chairman of the Board of Directors of the New York City Off-Track Betting Corporation, Defendants.

No. 91 Civ. 5624 (KC).

United States District Court, S.D. New York.

April 15, 1993.


818 F. Supp. 648
COPYRIGHT MATERIAL OMITTED
818 F. Supp. 649
John R. Olsen, Olsen & Brown, New York City, for plaintiff

Hillary Weisman, Asst. Corp. Counsel, New York City, for defendants.

ORDER

CONBOY, District Judge:

Plaintiff and defendants have both moved for partial summary judgment. For the reasons that follow, plaintiff's motion is denied, and defendant's motion is granted in part, and denied in part.1

I. Breach of Contract

Plaintiff claims that defendants violated express and implied contracts of employment between plaintiff and defendants when defendants terminated plaintiff. We disagree.

"It is well settled law in New York that, absent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at-will, terminable at any time by either party." Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 514 N.Y.S.2d 209, 211, 506 N.E.2d 919, 921 (1987). However, New York courts have recognized that in certain limited circumstances, when an employer has expressly agreed to limit its termination rights, the employer may no longer terminate the employee at-will. Id. 514 N.Y.S.2d at 212, 506 N.E.2d at 922; see Weiner v. McGraw Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 443 N.E.2d 441 (1982). When ascertaining whether an employer has expressly agreed to limit its termination rights, courts must look at the totality of the circumstances. See Gorrill v. Icelandair/Flugleidir, 761 F.2d 847, 852-53 (2d Cir. 1985).

In the case before us, the plaintiff asserts a number of bases for her claim that defendant's expressly limited their right to fire plaintiff at-will. First, plaintiff points to the OTB Corporate Policy and Procedures Manual ("OTB Manual"). Second, plaintiff points to OTB's Uniform Rules of Discipline. Third, plaintiff claims that certain statutes, rules, and regulations which, inter alia, limit the right of employers to fire their employees, have been incorporated into plaintiff's alleged employment contract. Fourth, plaintiff points to her employment application which states that OTB is an equal opportunity employer. Finally, plaintiff asserts that defendants induced plaintiff to leave her previous employment by making certain oral assurances to her.

818 F. Supp. 650

As far as the OTB manual is concerned, the manual nowhere limits the right of OTB to fire an employee. Although the "Separation from Employment" chapter of the OTB manual lists four types of separation (resignation, discharge for cause, layoff and retirement), that language as a matter of law cannot be construed as excluding other grounds for termination because it does not expressly do so. See Novinger v. Eden Park Health Services, Inc., 167 A.D.2d 590, 563 N.Y.S.2d 219, 220-21 (1990); Marvin v. Kent Nursing Home, 153 A.D.2d 553, 544 N.Y.S.2d 210, 211-12 (1989); Gmora v. State Farm Mutual Automobile Insurance Co., 709 F.Supp. 337, 341 (E.D.N.Y.1989), aff'd mem, 888 F.2d 1376 (2d Cir.1989). Moreover, plaintiff admits that she did not rely on the OTB manual before being hired, see Plaintiff's Brief in Opposition to Defendants Motion for Partial Summary Judgment at 14, and this admission is fatal for her contractual claim based on the OTB manual. See Novinger, 563 N.Y.S.2d at 221.

Plaintiff's reliance on OTB's Uniform Rules of Discipline is also misplaced. Even assuming that the Uniform Rules of Discipline were applicable to plaintiff, the rules are, on their face, silent about any limitation on OTB's reasons for termination. However, citing the deposition testimony of former OTB President Howard Giordano, plaintiff asserts that a letter that Giordano inserted in the Uniform Rules of Discipline connotes that OTB employees can only be fired for cause. See Plaintiff's Memo Submitted with Exhibit 56 at 2. Even assuming that Giordano attempted to convey that message in the letter, we do not find that the letter stated with sufficient clarity and explicitness that OTB employees could only be terminated for cause. Therefore, we believe that that language, as a matter of law, cannot be construed as excluding other grounds for termination, see Novinger v. Eden Park Health Services, Inc., 167 A.D.2d 590, 563 N.Y.S.2d 219, 220-21 (1990); Marvin v. Kent Nursing Home, 153 A.D.2d 553, 544 N.Y.S.2d 210, 211-12 (1989); Gmora v. State Farm Mutual Automobile Insurance Co., 709 F.Supp. 337, 341 (E.D.N.Y.1989), aff'd mem, 888 F.2d 1376 (2d Cir.1989), and we conclude that the Uniform Rules of Discipline were not an express limitation on the rights of the defendants to fire plaintiff at-will.

Third, plaintiff claims that because "a contract is deemed to include in its terms all rights conferred upon the parties by the laws of the state where the contract was made," N.C. Feed Co. v. Board of Governors of the Federal Reserve System, 473 F.2d 1210, 1215 (2d Cir.), cert. denied, 414 U.S. 827, 94 S.Ct. 48, 38 L.Ed.2d 61 (1973); accord Doleman v. United States Trust Co., 2 N.Y.2d 110, 157 N.Y.S.2d 537, 542, 138 N.E.2d 784, 789 (1956), certain statutes, regulations, and rules, such as the New York Anti-Discrimination Laws, are incorporated into her purported employment contract. Apparently, plaintiff maintains that defendants' violation of those statutes is a basis for a breach of contract action against the defendants. We disagree. Plaintiff's reasoning is flawed because an at-will employment arrangement is not contractual and does not create an employment contract. See Ingle v. Glamore Motor Sales, Inc., 73 N.Y.2d 183, 538 N.Y.S.2d 771, 774, 535 N.E.2d 1311 (1989) (stating that at-will employees discussed in two previous Court of Appeals Cases did not have a contractual arrangement with their employers); Dickstein v. Del Laboratories, Inc., 145 A.D.2d 408, 535 N.Y.S.2d 92, 94 (1988) (implicitly holding that in employment at-will cases there exists no contract); 3A Corbin On Contracts § 674 at 124-25 (Supp.1992) ("A `contract' terminable at-will by either party without further obligation or right flowing to either is repugnant to the term `contract' itself, which carries with it implications of performance and duty, and expectations based on promises."). Since there existed no contract in which to incorporate the statutes, rules, and regulations cited by the plaintiff, her breach of contract claim based on these statutes, rules, and regulations must fail.2 Moreover, even

818 F. Supp. 651
assuming that at-will employment is contractual, we have found no New York cases in which a terminated at-will employee sued its employer under a breach of contract theory based on violations of statutes, rules, and regulations by the employer.3

Plaintiff's assertion that the OTB by-laws limit the right of the defendants to terminate plaintiff is also meritless. The only written document that plaintiff appears to claim that she saw before accepting her job was the OTB'S Uniform Rules of Discipline. See Cucchi Aff. ¶ 26-¶ 33.4 Plaintiff never alleges that she relied on the OTB by-laws before she decided to accept the Inspector General job with OTB, and plaintiff's failure to establish pre-hiring reliance on the by-laws is fatal to her contract claim based on the by-laws. See Novinger v. Eden Park Health Services, Inc., 167 A.D.2d 590, 563 N.Y.S.2d 219, 221 (1990). Moreover, the only portion of the by-laws that arguably might apply to plaintiff, merely states that the executive staff are to be "appointed by the Board of Directors to serve at the will of the Board of Directors." Ex. A to Elaissen Aff., Art. (IV, § 2(D)). However, because the by-laws do not state explicitly that this is the exclusive way that executive staff can be fired, it cannot, as a matter of law, be read to preclude other methods of termination. See Marvin v. Kent Nursing Home, 153 A.D.2d 553, 544 N.Y.S.2d 210, 211 (1989).

Plaintiff also contends that because the top of the first page of her OTB employment application stated that OTB is an equal opportunity employer, plaintiff had a contractual right not to be fired because of her sex. We disagree. We do not believe that this statement is a sufficiently express limitation on defendants right to fire plaintiff so as to allow plaintiff to sue defendants under a breach of contract theory. Therefore, even if OTB did fire plaintiff for discriminatory reasons, that firing does not constitute a breach of contract.5

Plaintiff's final contract argument is that defendants orally assured her that only the OTB Board of Directors could fire plaintiff, that no retaliation would be taken against plaintiff for plaintiff's investigatory work, that no retaliation would be taken against her for reporting wrongdoing, that OTB was an equal opportunity employer with maternity leave benefits, that the OTB Uniform Rules of Discipline were mandatory and binding, and that plaintiff would not be considered management. Plaintiff asserts that she left her previous employment and came to work for OTB based on these oral assurances.

First of all, it is important to note that none of the alleged oral promises state that plaintiff could only be fired for cause. Indeed,

818 F. Supp. 652
none of these promises create an expectation of continued employment. Therefore, these promises did not alter plaintiff's at-will status

Moreover, while an employer's oral assurances only to fire an employee for just cause are a significant factor a court must take into consideration in determining whether the employer intended alter the employee's at-will status, an employer's oral assurances that induce a person to work for the employer are not by themselves sufficient evidence of an express...

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36 practice notes
  • Glendora v. Marshall, No. 96 Civ. 0140 (JSR).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 12, 1996
    ...her life. See Buckley v. Metro-North Commuter R.R., 79 F.3d 1337, 1343 (2d Cir.1996); Cucchi v. New York City Off-Track Betting Corp., 818 F.Supp. 647, 656 Plaintiff's claim that the "black out" of her program constitutes an action in defamation must likewise be dismissed. Plaintiff has fai......
  • Vumbaca v. Terminal One Grp. Ass'n L.P., No. 11–CV–5535.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 20, 2012
    ...duty was not a special one owed specifically to the plaintiff.”) (internal citations omitted); Cucchi v. N.Y.C. Off–Track Betting Corp., 818 F.Supp. 647, 656 (S.D.N.Y.1993) (“The termination of an employee does not give rise to a claim for negligent infliction of emotional distress because ......
  • Wahlstrom v. Metro-North Commuter R. Co., No. 96 Civ. 3589(PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 6, 2000
    ...and majority shareholder allegedly made comments that constituted sexual harassment); Cucchi v. New York City Off-Track Betting Corp., 818 F.Supp. 647, 656 (S.D.N.Y.1993) (finding no special relationship because plaintiff's employer had no obligation to treat her differently than all other ......
  • Poolt v. Brooks, No. 110024/09.
    • United States
    • United States State Supreme Court (New York)
    • January 18, 2013
    ...safety (Persaud v. S. Axelrod Company, n.o.r., 1996 WL 11197 [SDNY 1996], citing Cucchi v. New York City Off–Track Betting Corp., 818 F.Supp. 647, 656 [SDNY 1993] ). There are no allegations of physical threats to plaintiff to support this claim.Remaining Claims Plaintiff has also asserted ......
  • Request a trial to view additional results
36 cases
  • Glendora v. Marshall, No. 96 Civ. 0140 (JSR).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • November 12, 1996
    ...her life. See Buckley v. Metro-North Commuter R.R., 79 F.3d 1337, 1343 (2d Cir.1996); Cucchi v. New York City Off-Track Betting Corp., 818 F.Supp. 647, 656 Plaintiff's claim that the "black out" of her program constitutes an action in defamation must likewise be dismissed. Plaintiff has fai......
  • Vumbaca v. Terminal One Grp. Ass'n L.P., No. 11–CV–5535.
    • United States
    • United States District Courts. 2nd Circuit. United States District Court (Eastern District of New York)
    • April 20, 2012
    ...duty was not a special one owed specifically to the plaintiff.”) (internal citations omitted); Cucchi v. N.Y.C. Off–Track Betting Corp., 818 F.Supp. 647, 656 (S.D.N.Y.1993) (“The termination of an employee does not give rise to a claim for negligent infliction of emotional distress because ......
  • Wahlstrom v. Metro-North Commuter R. Co., No. 96 Civ. 3589(PKL).
    • United States
    • United States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
    • April 6, 2000
    ...and majority shareholder allegedly made comments that constituted sexual harassment); Cucchi v. New York City Off-Track Betting Corp., 818 F.Supp. 647, 656 (S.D.N.Y.1993) (finding no special relationship because plaintiff's employer had no obligation to treat her differently than all other ......
  • Poolt v. Brooks, No. 110024/09.
    • United States
    • United States State Supreme Court (New York)
    • January 18, 2013
    ...safety (Persaud v. S. Axelrod Company, n.o.r., 1996 WL 11197 [SDNY 1996], citing Cucchi v. New York City Off–Track Betting Corp., 818 F.Supp. 647, 656 [SDNY 1993] ). There are no allegations of physical threats to plaintiff to support this claim.Remaining Claims Plaintiff has also asserted ......
  • Request a trial to view additional results

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