Moraes v. White

• Decision Date: 22 November 2021
• Docket Number: 21 Civ. 4743 (PAE)
• Parties: Barbara MORAES, Plaintiff, v. April Mackenna WHITE and Alexander Wilke White, Defendants.
• Court: U.S. District Court — Southern District of New York

571 F.Supp.3d 77

Barbara MORAES, Plaintiff,

v.April Mackenna WHITE and Alexander Wilke White, Defendants.

21 Civ. 4743 (PAE)

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

Signed November 22, 2021

Julia Lea Elmaleh-Sachs, Susan Karolena Crumiller, Crumiller P.C., Brooklyn, NY, Jonathan Adam Bernstein, Isaacs Bernstein, P.C., Yardley, PA, for Plaintiff.

Adam Swope Kaufmann, Lewis Baach Kaufmann Middlemiss PLLC, New York, NY, Jeffrey D. Robinson, Lewis Baach Kaufmann Middlemiss PLLC, Washington, DC, for Defendants.

OPINION & ORDER

Paul A. Engelmayer, United States District Judge This case involves claims of defamation and tortious interference with contract by a nanny, who alleges that her former employer defamed her as a stalker and harasser in social media posts and cost her an existing nanny job. Plaintiff Barbara Moraes ("Moraes") brings three claims of defamation, one of tortious interference of contract, one of intentional infliction of emotional distress, and three of violations of the New York Labor Law ("NYLL") against April Mackenna White ("Ms. White") and Alexander Wilke White ("Mr. White") (together, the "Whites"). These arise from Moraes’ employment as nanny to the Whites’ son, W., her termination from that post, and from the Whites’ alleged post-termination communications to others about Moraes.

The Whites now move under Federal Rule of Civil Procedure 12(b)(6) for partial dismissal—of the claims for defamation, tortious interference of contract, and intentional infliction of emotional distress, but not those under the NYLL—for failure to state a claim. For the following reasons, the Court denies the Whites’ motion in its entirety.

I. Background

A. Factual Background¹

In 2017, Moraes, a Brazilian immigrant, moved from Ohio to New York to pursue her education. FAC ¶ 12. Moraes found work as a nanny caring for young children in Chelsea, Manhattan. Id. Moraes received excellent references from the families for whom she worked in Chelsea as well as the family for whom she had worked in Ohio. Id.

In August 2019, the Whites hired Moraes as a nanny for their son, W. Id. ¶ 13. For nearly a year, the employment relationship was mutually satisfactory, Id. Moraes and W. were fond of each other, and Ms. White and Moraes developed a relationship of cordiality and confidence. Id.

In April 2020, Moraes was the victim of a violent attack unrelated to her employment. Id. ¶ 14. In the immediate aftermath, Moraes experienced extreme psychological distress. Id. After a three-day hospitalization, Moraes was diagnosed with post-traumatic stress disorder

. Id.

According to the FAC, Ms. White thereafter was initially "kind" to Moraes, as she had been in the past. Id. ¶ 15. However, that changed in summer 2020. In July 2020, Moraes accompanied the Whites to their beach house in Long Island for several days. Id. ¶ 16. During the trip, Moraes confided in Ms. White that she had been struggling in the aftermath of the attack, including that she had been receiving treatment. Id. The FAC alleges that after receiving this information, Ms. White terminated Moraes’ employment immediately, and called for a car to take Moraes to her Queens apartment. Id. Moraes was not permitted to say goodbye to W. Id.

In a July 23, 2020 text message to Moraes, sent after her termination, Ms. White wrote regarding a recommendation, "I am happy to tell a potential employer what a wonderful caretaker you were. I cannot withhold what took place between us over the past few months, though I can tell them that up to your termination it did not impact the quality of your care." Kaufmann Decl., Ex. A.

On August 15, 2020, in an effort to seek closure, Moraes sent Ms. White a five-page letter about her behavior in the aftermath of her attack. Moraes stated:

Asking for forgiveness is assuming responsibility in my actions, which I do. I never meant to hurt you. I never meant to make you cry but I know I made mistakes and I assume this. There is no pain that justifies more pain. Only I know how much I suffered and still do, however this is not a reason to make you suffer as well. I want to apologize for my immaturity, for not knowing how to be grateful—even though crying many times thanking God for having you—for my words that one day hurt you, for my angriness, for not knowing how to receive your love and support.

....

I know that I can be part of Little's life in so many ways—and this is what I want most, but I also know and understand that there are situations that cannot be fixed. If this isn't the case, I ask you to reflect on how much I love him and would like to stop by to give him a hug here and there, FaceTime him or even take him for an adventure over the weekend, if you let me.

Id. , Ex. B; FAC ¶ 17. Moraes never received a response to her letter. FAC ¶ 19. Moraes did not make any further attempt to contact the Whites. Id.

On August 20, 2020, Moraes’ friend, Ismenia, invited her and other nanny friends to meet at Chelsea Green for a picnic. Id. ¶ 20. This was convenient for Moraes, as she had planned to meet a friend for coffee in the neighborhood and to pick up a prescription at a pharmacy around the corner. Id.

While Moraes was chatting with friends at the picnic, W., accompanied by his new nanny, arrived at the park. Id. ¶ 21. According to the FAC, W. ran over to Moraes and hugged her. Id. Moraes sat with W. and his new nanny for a time on a park bench. Id.

That evening, Mr. White called Moraes. Id. ¶ 22. He told Moraes that "it's really inappropriate for you to be in our neighborhood, hanging around a park around the corner from our house, where we can only assume that you were there to try to see [W.]." Id.

According to the FAC, Moraes attempted to deny that she had been in the park to see W., but Mr. White spoke over her. Id. Mr. White also stated that "[i]f you care about [W.], you need to give him space and not let him be confused by your presence .... You know that [W.] will try to see you." Id. Moraes agreed, but expressed confusion as to what Mr. White expected her to do if she had other employment in the neighborhood. Id. The conversation transcript—which was tape-recorded by Mr. White—sets out this portion of their conversation:

MR. WHITE: Barb, listen to us, I don't want to hear what you have to say. We did not respond to your request to spend time with him, we—because you cannot spend time with him. We are not in a place where it's okay for you to spend time with him. So, let's be very clear, stay away from [W.]. If you don't stay away from [W.] and you continue to be—put yourself in positions to try to see him, we will have to get the police involved.

MORAES; Okay, then –

MR. WHITE: You –

MORAES: – you can do that, because like, I'm going –

MR. WHITE: Barb –

MORAES: – to the park and (inaudible) –

MR. WHITE: – you are the ad–

MORAES: – again, because I'm gonna see my friend, and if your nanny arrives there, she needs to leave. Alec, you can't say –

MR. WHITE: Barb, –

MORAES: – that (inaudible).

MR. WHITE: – you are – Barb, you are the adult here, you are the adult here. You know that [W.] will try to see you, if you go to places where he is likely to be. If you are there, and try to see him, and don't leave, we will call the police.

MORAES: Okay.

MR. WHITE: Leave our family alone and give us space.

MORAES: I'm not around your family.

MR. WHITE: Give our family space. [W.] is our family, Barb.

MORAES: I understand that, –

MR. WHITE: [W.] is our family –

MORAES: – but now –

MR. WHITE: – you – [W.]

MORAES: – I can't, like, any – anytime on the street and I bump to him, or to you, or to (inaudible) –

MR. WHITE: Then walk the other way.

MORAES: – (inaudible).

MR. WHITE: Then walk the other way.

MORAES: But (inaudible) can't walk that way.

MR. WHITE: Go – cross the – cross the street and walk the other way. You don't need –

MORAES: (Inaudible).

WHITE: – to be in Flatiron or Chelsea.

MORAES: Oh, yeah. So, I have a job in Chelsea, so I'm not allowed to accept the job?

MR. WHITE: Barb, you do not need to put yourself in a situation where you are close to [W]. We are telling you to stay away from him. And if you can – if you put yourself in a position to be close to him, we are going to call the police.

Id. ¶ 23. Later that evening, Moraes and the Whites communicated through an intermediary, According to the FAC, Moraes agreed to change her pharmacy and minimize the time she spent in Flatiron and Chelsea, to avoid antagonizing the Whites. Id.

The FAC alleges that although Moraes was unsettled by the call, she assumed the issue had been resolved, as she had agreed not to have further communication with W. and to avoid the Whites as much as possible. Id. ¶ 24. At the time, this was not difficult for Moraes to agree to, because she had not secured new employment requiring her presence in a Manhattan neighborhood. Id.

On August 25, 2020, five days after the phone call, Moraes heard a loud and persistent banging on her apartment door. Id. ¶ 26. Moraes was frightened and surprised, as she assumed whoever was banging had to have snuck into the building. Id. The man at her door continued banging for approximately 20 minutes, until Moraes relented and opened the door. Id. ¶ 27. The man asked to enter the apartment; Moraes refused. Id. The man identified himself as Santiago Batista ("Batista"), a managing director of the firm Guidepost Solutions. Batista said that he was at Moraes’ apartment on behalf of the Whites. Id. ¶ 28.

According to the FAC, Batista told Moraes that the Whites were being "nice" because "they cared about you," that "you are a young person, you're an immigrant, you don't have to jeopardize your future here," and that "we hope you can continue to live and work here and there is no problem." Id. Batista stated that he was not at her apartment to threaten her or send her a message. Id. ¶ 29. Batista delivered to Moraes a letter from Lewis Baach Kaufmann Middlemiss, PLLC, Ms. White's law firm, dated August 25, 2020. The letter stated, in relevant part:

You shall cease and desist from

...