Herlihy v. Metropolitan Museum of Art

• Citation: 608 N.Y.S.2d 770,160 Misc.2d 279
• Parties: Cecile HERLIHY, Plaintiff, v. The METROPOLITAN MUSEUM OF ART, Ruth Zalinka, Sandra Ortner and Judith Strone, Defendants.
• Decision Date: 10 January 1994
• Court: New York Supreme Court

Page 770

608 N.Y.S.2d 770

160 Misc.2d 279

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

Supreme Court, New York County,

IAS Part 4.

Jan. 10, 1994.

Vladeck, Waldman, Elias & Engelhard, P.C. by Anne C. Vladeck, New York City, for plaintiff.

Whitman & Ransom by Elizabeth A. Alcorn, New York City, for defendants.

EDWARD J. GREENFIELD, Justice.

When a person is charged with making bigoted and discriminatory remarks, can she counter by claiming it is she who is the victim of discrimination and can the complainants assert that their reports were privileged? That is the issue in this case.

Plaintiff, Cecile Herlihy, age 72, has been employed by defendant Metropolitan Museum of Art for 20 years, the last 11 as Coordinator of Membership Volunteers, until she was discharged after complaints that she had made anti-Semitic remarks to defendants, volunteers at the Museum, Ruth Zalinka, Sandra Ortner and Judith Strone, who were supervised by plaintiff.

Plaintiff's complaint sets forth causes of action for discriminatory discharge, slander, tortious interference with prospective business relations and intentional infliction of emotional distress. She alleges that Zalinka and Ortner in July 1991 and Strone in August 1991 advised Museum officials, including the Museum's Human Resources office, that plaintiff had made anti-Semitic remarks at different times in the presence of each of them.

Plaintiff alleges the volunteers reported that she said to them: "You Jews are such liars," "You Jews are all alike" and, referring to the Jewish volunteers, "f--king whores", "liars" and "undependable."

Plaintiff denies making such remarks, claims the complaints of the volunteers were knowingly false and made with malice, and says she had merely been attempting to ascertain on which dates in September 1991 the Jewish New Year would be celebrated in order to determine the feasibility of temporary work schedule changes requested by Zalinka and Ortner.

Plaintiff contends that the three volunteers were acting in retaliation for her exercise of authority over their work schedules and because she had previously given them certain reprimands regarding their respective work performances.

Plaintiff also alleges that Museum officials, while investigating the charges, ignored her denials and directed her to apologize, causing her emotional distress.

On September 11, 1991, the Museum suspended plaintiff pending the conclusion of its investigation. Plaintiff alleges that during the investigation, Barbara Dougherty, the Museum's Manager of Membership, asked her whether her job was "getting to be too much" for her.

Plaintiff was discharged soon thereafter. Plaintiff, 72 years old, alleges her duties were assigned to younger and less experienced individuals, and she claims she has been discriminated against.

Plaintiff seeks, inter alia, lost wages and benefits, punitive damages and litigation expenses, including reasonable attorneys' fees.

Defendants now move for dismissal of the complaint or summary judgment on all of plaintiff's claims against Zalinka, Ortner and Strone and on the claim of intentional infliction of emotional distress against the Museum asserting that those claims are deficient as a matter of law and are controverted by the undisputed facts.

The court, in its discretion, will treat the instant motion as one for summary judgment (see, CPLR 3211[c], since both sides have submitted extensive affidavits, have laid bare their proof and have deliberately charted a summary judgment course (Four Seasons Hotels Ltd. v. Vinnik, 127 A.D.2d 310, 515 N.Y.S.2d 1).

Defendants contend that all the tort claims against the volunteers must be dismissed because their reports of discriminatory and anti-Semitic comments by plaintiff which launched the Museum's investigation into those reports are protected and privileged under federal, state and local laws and state common law which protect their right to be free from retaliation for lodging a complaint of discrimination. Plaintiff, in opposition, claims that since she never made the remarks imputed to her, the statements by the volunteers were knowingly false and were made and given with malicious intent in order to harm plaintiff because of the reprimands she had previously given to each of the three volunteers. Defendants rely on the shield against liability provided both by statutory and by common law.

The Statutory Shield

Federal, State and local laws prohibit discrimination on the basis of race or religion in the workplace and places of public accommodation. (42 U.S.C. §§ 1981, 2000a (Title II) and 2000e-2(a) (Title VII); N.Y.Exec.Law § 296[2][a], N.Y. Civil Rights Law § 40; N.Y.C.Admin.Code §§ 8-101 et seq.) The anti-discrimination law protects the right of an individual to oppose discrimination in the workplace and to lodge a complaint of discrimination with an employer or administrative agency without risk of retaliatory measures. (42 U.S.C. §§ 2000a-2, 2000e-3[a], N.Y.Exec.Law § 296[7], N.Y.C.Admin.Code § 8-107[7].

There is no question but that the use of racial or religious slurs and derogatory characterizations about an entire ethnic, racial or religious group are bigoted and hurtful, and that the employer may be held responsible for discrimination if it condones or acquiesces in discriminatory language uttered by an employee out of personal pique. Totem Taxi, Inc. v. N.Y. State Human Rights Appeal Board, 65 N.Y.2d 300, 491 N.Y.S.2d 293, 480 N.E.2d 1075.

It is the contention of the individual defendants that these statutes afford complete protection to the individual who lodges a complaint of discriminatory words or conduct in the workplace, since they prohibit retaliation, and plaintiff is suing them only because they lodged complaints. (42 U.S.C. §§ 2000a-2, 2000e-3(a); N.Y.Exec.Law § 296[9]; N.Y.C.Admin.Code § 8-107[7]. They argue that the statutes provide an absolute shield to them against subsequent suits for defamation even if their complaints were unfounded, malicious, false and defamatory.

Certainly it is true that an employer is guilty of unlawful conduct if it discharges, expels or otherwise discriminates against a person who has opposed forbidden discriminatory practices. (N.Y.Exec.L. § 296 subd. 1[e], 3-a(c); N.Y. State Office of Mental Retardation & Dev. Disabilities [Staten Is. Dev. Ctr.] v. N.Y. State Division of Human Rights, 164 A.D.2d 208, 563 N.Y.S.2d 286; Western Union Intl. v. N.Y.C. Comm. on Human Rights, 128 Misc.2d 217, 489 N.Y.S.2d 665, aff'd 120 A.D.2d 996, 502 N.Y.S.2d 568; Avis-High Bennett Rent-A-Car v. State Human Rights Appeal Board, 40 A.D.2d 992, 338 N.Y.S.2d 694; Bethlehem Steel Corp. v. N.Y. State Division of Human Rights, 36 A.D.2d 898, 320 N.Y.S.2d 999). The question is whether an individual who brings a suit for defamation alleging he or she was falsely charged is barred as a matter of law from maintaining such a suit because it is "retaliatory."

There is only one case in New York State cited for such a proposition, Moran v. Simpson, 80 Misc.2d 437, 362 N.Y.S.2d 666 (Sup.Ct. Livingston Cty., 1974). The court there dismissed a complaint for libel and malicious prosecution premised on charges made by the defendant to the State Division of Human Rights which found no probable cause. It summarily concluded, "Since the plaintiff's lawsuit is bottomed on an act pronounced to be wrong by statute, it cannot survive the defendant's motion for dismissal." (id., p. 438, 362 N.Y.S.2d 666). Defendants also cite EEOC v. Virginia Carolina Veneer Corp., 495 F.Supp. 775, 778, where it was stated that the federal courts have found "an absolute privilege against defamation or other torts resulting from exercising a right granted by federal law like the filing of a charge of discrimination."

The New York Court of Appeals has, however, rejected the notion of an absolute bar against retaliation for an unfounded complaint of discriminatory practices. Mohawk Finishing Products, Inc. v. State Division of Human Rights, 57 N.Y.2d 892, 456 N.Y.S.2d 749, 442 N.E.2d 1260. The complainant must at least have a reasonable belief as to the existence of the discrimination before being accorded a shield against retaliation. N.Y. State Office of Mental Retardation v. N.Y. State Division of Human Rights, supra, p. 210, 563 N.Y.S.2d 286.

The cases cited by defendants for the proposition that even those who make malicious and defamatory discrimination complaints are protected against retaliation do not in fact go that far. Proulx v. Citibank, N.A., 659 F.Supp. 972 (S.D.N.Y.1987), aff'd 862 F.2d 304, holds that while an employee charging discrimination is protected against firing, a subsequent suit can still be brought by the person wrongly charged against an employee for defamation for making a malicious discrimination claim. Id., pp. 978-979. Similarly, in Pettway v. American Cast Iron Pipe Co., 411 F.2d 998, 1007, 22, the court declared that while an employer is barred from the retributive discharge of a complainant, "We in no way imply that an employer is preempted ... from vindicating his reputation through resort to a civil action for malicious defamation." As the U.S. Supreme Court has declared, "malicious libel enjoys no constitutional protection in any context. * * * The malicious utterance of defamatory statements in any form cannot be condoned ..." Linn v. United Plant Guard Workers of America, 383 U.S. 53, 63, 86 S.Ct. 657, 663, 15 L.Ed.2d 582.

New York Executive Law § 296(7) and Administrative Code § 8-107[7] do not bar all retaliatory action in any event, but limit their protections to those who have filed a complaint or participated in a proceeding, or who have "opposed any practices forbidden under this article"--i.e. discriminatory hiring or discharge, use of public accommodations, rental or sale of residential or commercial space, etc. It does not appear that there ever was...