Jean-Joseph v. Walgreens, Inc.
| Decision Date | 21 October 2011 |
| Docket Number | CV-10-4635 (SLT) (VVP) |
| Parties | MARGARETH JEAN-JOSEPH, Plaintiff, v. WALGREENS, INC., et. al., Defendants. |
| Court | U.S. District Court — Eastern District of New York |
The plaintiff commenced this action on August 20, 2010 in New York Supreme Court and the defendants thereafter removed the action to this court based on federal question jurisdiction. See Dkt No. 1. The plaintiff has filed a motion to amend and in the proposed repleaded complaint set forth claims for, inter alia, violation of the Fair Labor Standards Act ("FLSA") and common law claims for defamation. Dkt Nos. 15, 22. The defendants Walgreens, Inc. ("Walgreens") and Suzette Gaskin ("Gaskin")1 opposed the motion to amend the Complaint to add the FLSA and defamation claims, Dkt Nos. 16-17, and oral argument was held before me on the motion to amend, Dkt. Nos. 21, 24. As discussed further below, the court grants the motion to amend to add a defamation claim against Gaskin but denies the motion to amend to add an FLSA claim and a defamation claim against Walgreens.2
In evaluating whether the allegations in the proposed amended Complaint adequately plead a viable claim for relief, the court is mindful that "[t]he court should freely give leave [to amend] when justice so requires." Fed. R. Civ. P. 15(a)(2); see also Davis v. Goord, 320 F.3d346, 352 (2d Cir. 2003); Simmons v. Abruzzo, 49 F.3d 83, 86-87 (2d Cir. 1995). "Where it appears that granting leave to amend is unlikely to be productive, however, it is not an abuse of discretion to deny leave to amend." Lucente v. International Bus. Mach. Corp., 310 F.3d 243, 258 (2d Cir. 2002) (citation omitted). Undue delay, prejudice, futility of the amendment, and prior opportunities to amend the complaint, among other factors, are to be considered in determining whether leave to amend should be granted. E.g., Foman v. Davis, 371 U.S. 178, 182 (1962); accord, e.g., Holmes v. Grubman, 568 F.3d 329, 334 (2d Cir. 2009); Nettis v. Levitt, 241 F.3d 186, 193 (2dCir. 2001); Manson v. Stacescu, 11 F.3d 1127, 1133 (2d Cir. 1993). Ultimately, the decision to grant or deny a request to amend is within the discretion of the district court. Foman, 371 U.S. at 182; McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 200 (2d Cir. 2007); John Hancock Mut. Life Ins. Co. v. Amerford International Corp., 22 F.3d 458, 462 (2d Cir. 1994).
A proposed amendment is futile "if the proposed claim could not withstand a motion to dismiss pursuant to Fed. R. Civ. P. 12(b)(6)." Lucente, 310 F.3d at 258 (citing Dougherty v. North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002). In evaluating the proposed amended complaint for futility, the court applies the same standards as those applied to a motion to dismiss pursuant to Rule 12(b)(6). See id.; see also Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d Cir. 2001); Ricciuti v. N.Y.C. Transit Auth., 941 F.2d 119, 123 (2d Cir. 1991). Thus, the court takes the allegations of the complaint as true and draws all reasonable inferences in favor of the plaintiff. See, e.g., Hernandez v. Coughlin, 18 F.3d 133, 136 (2d Cir. 1994). If the proposed claim sets forth facts and circumstances which may entitle the plaintiff to relief, then futility is not a proper basis on which to deny the amendment. See Mathon v. Marine Midland Bank, N.A., 875 F. Supp. 986, 1003 (E.D.N.Y. 1995); Allstate Ins.Co. v. Administratia Asigurarilor De Stat, 875 F. Supp. 1022, 1029 (S.D.N.Y. 1995).
The proposed Amended Complaint alleges the following facts. The plaintiff was employed by the defendant Walgreens in their retail stores from January 1997 through her termination in June 2010. Compl. ¶¶ 8, 28. The plaintiff received raises during her employment and was promoted from clerk to assistant store manager in 2001. Compl. ¶¶ 8, 12. The defendant Gaskin was the plaintiff's manager. Compl. ¶ 11. In 2005, the plaintiff took a one-year leave of absence after the birth of her second child. Upon her return to work, the plaintiff was placed at a lower rate of pay than when she had left. Compl. ¶¶ 12-15. She complained to Gaskin of this discrepancy but Gaskin refused to address the plaintiff's concerns. As a result, the plaintiff reported her complaint and Gaskin's refusal to Walgreens' Chicago headquarters. Compl. ¶¶ 16-18. Although the plaintiff was returned to her previous rate of pay, she was not reimbursed for the three months during which she received the lower rate of pay. Compl. ¶ 17. In addition, Gaskin stated that she would retaliate against the plaintiff and did so by telling the plaintiff to quit her job at Walgreens, assigning her to inconvenient shifts, and reprimanding her for conduct that was not the plaintiff's doing. Compl. ¶¶ 19-28.
Gaskin told other Walgreens employees "that plaintiff had committed fraud in an attempt to [cause the plaintiff] to be terminated" and also reported this alleged fraudulent conduct to the New York State Labor Department in connection with the plaintiff's unemployment benefits proceedings. Compl. ¶¶ 29-30, 37. The alleged fraud was that the plaintiff performed a "fraudulent post void" in a transaction with a customer. Compl. ¶ 28. The plaintiff was terminated as a result of the conduct reported by Gaskin. Compl. ¶ 28.
In order to state a claim for defamation under New York law, the plaintiff must allege "(1) a false and defamatory statement of fact, (2) concerning the plaintiff, (3) published without privilege or authorization to a third party by the defendant, (4) constituting fault as judged by, at a minimum, a negligence standard, and (5) causing special harm or constituting defamation per se. Gristede's Foods, Inc. v. Poospatuck (Unkechauge) Nation, No. 06-CV-1260, 2009 WL 4547792, at *8 (E.D.N.Y. Dec. 1, 2009).4 In federal court, a claim for defamation is not subject to particularized pleading but is governed by Rule 8 of the Federal Rules of Civil Procedure and must be "specific enough to afford defendant sufficient notice of the communications complained of to enable him to defend himself." Id. at *9 (quoting Kelly v. Schmidberger, 806 F.2d 44, 45 (2d Cir. 1986) (internal quotation marks omitted)). The court will look to whether the complaint identifies who made the alleged defamatory statement, when it was made, in what context it was made, whether it was oral or in writing, and whether it was made to a third party. Nickerson v. Communication Workers of America, Local 1171, No. 04-CV-875, 2005 WL 1331122, at *7 ; Ford v. Clement, 834 F. Supp. 72, 77-78 (S.D.N.Y. 1993), aff'd 29 F.3d 621 (2nd Cir. 1994).
The defendants argue that the motion to amend to add a defamation claim should be denied because the statements at issue are either protected by an absolute or qualified privilege and because the plaintiff has failed to allege either special damages or defamation per se.Walgreens also argues that any defamation claim against it is barred by the New York Worker's Compensation Law ("NYWCL"). The court addresses each of these arguments in turn.
The plaintiff concedes that the statements that are alleged to have been made to the unemployment insurance board enjoy absolute immunity. Dkt. No. 19, at 2. Indeed, the principle of absolute immunity in this context is well-established. See, e.g., Ashe v. Mohawk Valley Nursing Home, Inc., 262 A.D.2d 960, 961, 701 N.Y.S.2d 536, 537 (4th Dep't 1999) (citing, inter alia, Wiener v. Weintraub, 22 N.Y.2d 330, 331 (1968)); Singletary v. All Metro Aids, Inc., 247 A.D.2d 252, 668 N.Y.S. 367 (1st Dep't 1998); Noble v. Creative Technical Services, Inc., 126 A.D.2d 611, 613, 511 N.Y.S.2d 51 (2d Dep't 1987).5 The plaintiff's motion to amend to add a defamation claim based on statements made in the context of New York State unemployment proceedings is therefore denied.
"[E]ven if a statement is defamatory, a qualified privilege exists where the communication is made to persons who share a common interest in the subject matter." Silverman v. Clark, 35 A.D.3d 1, 10, 822 N.Y.S.2d 9 (1st Dep't 2006); see also Byam v. Collins, 111 N.Y. 143, 150 (1888). Thus, the defendants correctly argue that communications to their employees may be privileged. See Anderson v. Our Lady of Mercy Medical Center, 31 A.D.3d 270, 270-71, 819 N.Y.S.2d 497 (1st Dep't 2006) (). However, the privilege is qualified and will not apply where the statements are communicated topersons who do not have a common interest in the subject matter or if they are made with malice. See Silverman, 35 A.D.3d at 10-11. Courts have found that statements made to co-employees are privileged where they are made in a "clearly confidential setting, to a small group of persons vitally interested in the subject matter" of the statements. See Kasachkoff v. City of New York, 107 A.D.2d 130, 135, 485 N.Y.S.2d 992 (1st Dep't 1985), aff'd by 68 N.Y.2d 654 (1986); see also Anderson, 31 A.D.3d at 270-71. Indeed, in the cases cited by the defendants, the privileged statements were made in the context of reviewing or assessing the plaintiff's behavior in connection with a performance evaluation or termination decision. The plaintiff's allegations here are that Gaskin stated to specific named Walgreens employees that the plaintiff engaged in fraudulent conduct in violation of company policy and that Gaskin continued to do so after the plaintiff's termination. Compl. ¶¶ 30-37. The mere fact that these individuals were employees, by itself, does not satisfy the qualified privilege.6
Moreover, a claim of qualified privilege would not...
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