Herlihy v. Metropolitan Museum of Art

• Decision Date: 10 October 1995
• Citation: 214 A.D.2d 250,633 N.Y.S.2d 106
• Parties: , 68 Empl. Prac. Dec. P 44,163 Cecile HERLIHY, Plaintiff-Respondent, v. The METROPOLITAN MUSEUM OF ART, Defendant, Ruth Zalinka, Sandra Ortner and Judith Strone, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

Page 106

633 N.Y.S.2d 106

214 A.D.2d 250, 68 Empl. Prac. Dec. P 44,163

Cecile HERLIHY, Plaintiff-Respondent, v. The METROPOLITAN MUSEUM OF ART, Defendant Ruth Zalinka, Sandra Ortner and Judith Strone, Defendants-Appellants.

Supreme Court, Appellate Division First Department.

Oct. 10, 1995.

Anne C. Vladeck, of counsel (Judith P. Vladeck and Edward Hernstadt, on the brief, Vladeck, Waldman, Elias & Engelhard, P.C., attorneys) for plaintiff-respondent.

Charles H. Kaplan, of counsel (Elizabeth A. Alcorn and Alice B. Stock, on the brief (Whitman Breed Abbott & Morgan, attorneys)) for defendants-appellants.

Before MURPHY, P.J., and RUBIN, ROSS, WILLIAMS and TOM, JJ.

TOM, Justice.

This appeal raises the issue of whether statements made by workers to their employer, concerning certain anti-Semitic remarks allegedly made by a supervisor, are privileged communications and therefore, not actionable.

Plaintiff Cecile Herlihy was employed by defendant the Metropolitan Museum of Art (the "Museum") for a period of more than 20 years and, at the time in question, was in charge of recruiting and supervising Museum volunteers. The volunteers are utilized in the curatorial and administrative departments as well as in conjunction with the Museum's education department. Defendant Judith Strone began working as a volunteer in September 1971, defendant Sandra Ortner in October 1988, and defendant Ruth Zalinka in June 1990 (the foregoing individuals will be collectively referred to herein as the "volunteers" or the "individual defendants").

In July and August 1991, the volunteers complained to the Museum's Human Resources Office, as well as other officials, that plaintiff had made anti-Semitic remarks to them. Specifically, in July 1991, Zalinka and Ortner reported that plaintiff had said "you Jews are such liars" and "you Jews are all alike." In August 1991, Strone averred that plaintiff had remarked that the Jewish volunteers were "f--king whores", "liars" and "undependable".

After being confronted with the volunteers' charges, plaintiff informed the Museum's officers that she had never made the remarks and that the volunteers' accusations were totally false. Plaintiff further asserted that the defendants were acting to retaliate against plaintiff after she exercised authority over their work schedules, questioned the feasibility of certain work schedule requests around Rosh Hashanah, and issued them reprimands regarding their respective work performances.

The Museum's Manager of Membership, purportedly after conducting some sort of investigation, demanded that Herlihy apologize for her remarks. On or about September 11, 1991, the Museum suspended plaintiff and on or about October 7, 1991, plaintiff was informed she was being terminated. Herlihy maintains that in the interim between her suspension and ultimate discharge, Museum officials inquired if her job was "getting to be too much for her" and that after her discharge, her duties were assigned to two younger, less experienced individuals. Plaintiff was 72 years of age at the time in question.

Plaintiff subsequently commenced the underlying action by the service of a summons and complaint which interposed five causes of action asserting, respectively: slander per se as against the volunteer defendants; slander with allegations of special damages as against the volunteer defendants; discrimination against plaintiff on the basis of her age in violation of the Human Rights Law as against the Museum; tortious interference with plaintiff's business relations with the Museum as against the volunteer defendants; and intentional infliction of emotional distress as against all of the defendants.

The individual defendants moved to dismiss the complaint pursuant to CPLR 3211(a)(7) and/or for summary judgment pursuant to CPLR 3212, asserting that plaintiff's action against them amounts to unlawful retaliation for having engaged in their statutorily protected right to be free from discrimination. The Museum, as part of the same motion, moved to dismiss with regard to the intentional infliction of emotional distress cause of action only. The IAS court treated the motion as one for summary judgment pursuant to CPLR 3211(c) and granted the Museum the relief sought but denied that branch of the motion pertaining to the volunteers in its entirety. The individual defendants now appeal.

Initially we find that the IAS court did not abuse its discretion and properly treated the motion as one for summary judgment as all of the parties laid bare their proof and submitted extensive affidavits, giving plaintiff a sufficient opportunity to make an appropriate record. It is, therefore, clear that both sides deliberately charted a summary judgment course (Mihlovan v. Grozavu, 72 N.Y.2d 506, 534 N.Y.S.2d 656, 531 N.E.2d 288; Four Seasons Hotels, Ltd. v. Vinnik, 127 A.D.2d 310, 515 N.Y.S.2d 1).

Defendants argue with regard to the slander and slander per se causes of action that state, federal and local anti-discrimination statutes confer privileges which render them absolutely immune from retaliation for lodging a discrimination complaint. Alternatively, defendants assert that their statements were protected by a cloak of absolute and qualified privilege.

The first issue to be addressed is the balance between the need for protecting society's interest in maintaining a discrimination-free workforce and an aggrieved party's right to protect his/her good reputation and standing among his/her peers. It has long been recognized by the courts that the public interest is served by shielding certain communications from litigation, though possibly defamatory, rather than risk stifling them completely (Liberman v. Gelstein, 80 N.Y.2d 429, 437, 590 N.Y.S.2d 857, 605 N.E.2d 344; Bingham v. Gaynor, 203 N.Y. 27, 31, 96 N.E. 84).

It is clear that numerous federal, state and local statutes expressly exist to encourage victims of work place discrimination to come forward and report discriminatory incidents and, at the same time, impose upon employers a corresponding duty to investigate those complaints and, if appropriate, take necessary action (see, e.g., 42 USC §§ 2000a-2, 2000e-3[a]; Executive Law § 296[7]; Administrative Code of the City of New York § 8-107[7]. Retaliation by employers against individuals for complaining of or opposing actions that they believe are discriminatory is illegal and employers can be held liable for tolerating discriminatory behavior (Executive Law § 296[1][e], [3-a][c]. ¹

In Mohawk Finishing Prods., Inc. v. New York State Div. of Human Rts., 57 N.Y.2d 892, 456 N.Y.S.2d 749, 442 N.E.2d 1260, however, the Court of Appeals rejected the notion of an absolute bar against retaliation for an unfounded complaint of discriminatory practices. In Mohawk, the Court affirmed the Third Department's annulment of a determination of discriminatory practices by the Human Rights Appeal Board, finding that there was insufficient evidence to satisfy either the federal standard that a complainant must have a reasonable belief that her employer was engaging in discriminatory practices, or the more stringent standard set forth by the Third Department that the employer's practice did, in fact, violate the Human Rights Law.

In Mohawk, however, the Court of Appeals, despite the opportunity, failed to specifically adopt either the Third Department or federal standard. ² As a result, the Third Department, "upon reflection", concluded in a later case that the more relaxed "reasonable belief standard" was appropriate in view of the remedial nature of the Human Rights Law and an explicit statutory admonition to construe the statute liberally (New York State Office of Mental Retardation and Developmental Disabilities v. New York State Div. of Human Rts., 164 A.D.2d 208, 210, 563 N.Y.S.2d 286).

The majority of cases relied upon by defendants in support of their claim of an absolute statutory privilege base such privilege on the existence of a quasi-judicial proceeding, which did not occur in the matter before us. For instance, in Proulx v. Citibank, N.A., 659 F.Supp. 972, affd. 862 F.2d 304 [2nd Cir.1988], the court found that even where an employee concedes that his complaint was malicious and unfounded, he was protected from discharge pending the filing and resolution of his complaint with the appropriate agency. The Court, however, did not conclude that Title VII of the Civil Rights Act barred a subsequent defamation claim, stating:

It does not follow that an employer made the object of a malicious discrimination claim is necessarily without legal remedy.... The employer's remedy is to defeat the employee's claim on its merits ... and then ... attempt a suit against the employee for defamation.

(Id. at 978-979).

Accord, Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1007, n. 22 (in which the Fifth Circuit Court of Appeals held that "We in no way imply that an employer is preempted by Section 704[a] from vindicating his reputation through resort to a civil action for malicious defamation.... An employer, consistent with the language and the intent of Title VII, simply cannot avail himself of the retributive discharge ..."); Linn v. United Plant Guard Workers of America, 383 U.S. 53, 63, 86 S.Ct. 657, 663, 15 L.Ed.2d 582 (in the context of union organizing activity, the National Labor Relations Act does not bar state defamation claims as "it must be emphasized that malicious libel enjoys no constitutional protection in any context.").

Accordingly, we conclude that statutory provisions prohibiting retaliatory conduct do not confer, upon bad-faith complainants making false discriminatory-related charges, absolute immunity from defamation actions that may arise out of those charges.

Alternatively, defendants assert that common-law privilege absolutely protects them from defamation suits, without regard to federal, state and local anti-discrimination statutes. This argument is...