Tortious Interference and Defamation Claims Survive, Retaliation Claim Dismissed, in Sexual Harassment Case

In Whipple v. Reed Eye Associates, No. 15-CV-6759L, 2016 WL 5719431 (W.D.N.Y. Oct. 3, 2016), the court dismissed plaintiff’s claim for retaliation, but sustained her claims for tortious interference with economic advantage and defamation.

In dismissing her retaliation claim against one defendant, the court explained:

[P]laintiff alleges that Weissend sexually harassed her, and that after she rejected his advances and complained about his conduct, he refused to work with her both before and after his resignation as Westfall’s Medical Director, “stigmatizing” plaintiff in the eyes of other Reed Eye/Westfall employees and giving rise to rumors and speculation about the nature of plaintiff and Weissend’s relationship. Plaintiff does not allege, however, that Weissend’s refusal to work with her had the effect, by itself, of altering the terms and conditions of her employment—that it was “more disruptive than a mere inconvenience or an alteration of job responsibilities,” or resulted in any diminution in pay or benefits. Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir.2012). As such, she fails to state a claim for retaliation against Weissend under the NYHRL.

As to another defendant, Scott, “plaintiff alleges that she complained to Scott on multiple occasions, both verbally and in writing, about Weissend’s harassment. In response, Scott instructed plaintiff not to inform Reed about her complaints and took no action to investigate them or to protect plaintiff from further harassment.”

The court explained:

Plaintiff’s allegations against Scott do appear to state a plausible claim—but it is one for discrimination, and not retaliation. While it is well settled that “managers or supervisors who fail to investigate or take appropriate remedial measures despite being informed of the discriminatory conduct may be held individually liable for aiding and abetting discrimination by an employer,” Bao v. New A & N Food Mkt., 2016 U.S. Dist. LEXIS 28248 at *11-*12 (E.D.N.Y.2016) (emphasis added), an individual’s inaction following a harassment complaint cannot constitute retaliation against the complainant for making the complaint. See Fahrenkrug v. Verizon Servs. Corp., 2016 WL 3448300 at *3, 2016 U.S. App. LEXIS 11048 at *6 (2d Cir.2016) (failure to investigate an employee’s complaint is not an adverse employment action, and cannot constitute retaliation for filing that same complaint).

With respect to plaintiff’s tortious interference claim, the court stated the law as follows:

In order to state a claim for tortious interference with business relations (also known as tortious interference with prospective economic advantage), a plaintiff must plausibly allege: (1) the existence of a profitable business relationship; (2) interference by the defendant with that relationship; (3) the use of dishonest, unfair, improper or wrongful means by the defendant; and (4) damage to the business relationship. The Second Circuit has found that, under New York law, wrongful means “represent physical violence, fraud or misrepresentation, civil suits and criminal prosecutions, and some degrees of economic pressure; they do not, however, include persuasion alone although it is knowingly directed at interference with the [prospective] contract.

The application of the law differed with respect to two defendants Reed and Bloom (finding that plaintiff respectively did not, and did, state claims against them):

Concerning Reed, plaintiff alleges that Reed spoke with Dr. Ralph Viola, an individual from whom plaintiff had “sought employment,” and warned Dr. Viola against hiring plaintiff, stating that plaintiff “got real bitchy at the end [of her employment with defendants].” Plaintiff alleges no use of wrongful means on the part of Reed—e.g. no “violence, fraud or misrepresentation [or] economic pressure”—and does not plead facts sufficient to justify an inference that Dr. Viola was seriously considering hiring plaintiff, but that Reed’s comment to Dr. Viola caused him to reject plaintiff as a potential employee. As such, plaintiff fails to state a claim against Reed for tortious inference, and that claim is dismissed.
*4 With respect to Bloom, plaintiff alleges that Bloom explicitly threatened Dr. Therese Farugia, a local optometrist who had extended an offer of employment to plaintiff, with retribution against Dr. Farugia and her husband (who worked for Reed Eye and over whom Bloom could exercise supervisory control) if she hired plaintiff, causing Dr. Farugia to withdraw the offer of employment before plaintiff could accept it. Granting plaintiff every favorable inference, these allegations are sufficient to a plausible claim against Reed for tortious interference with plaintiff’s business relations and/or prospective economic advantage through the use of wrongful means, resulting in actual damage to plaintiff.
The court held that plaintiff stated a claim for defamation against one, but not another, defendant:
With respect to Reed, plaintiff alleges that Reed warned Dr. Viola against hiring plaintiff, describing plaintiff as having become “bitchy” at “the end” of her employment with Reed Eye and Westfall. Defendants argue that Reed’s use of the word “bitchy” constituted an expression of “pure opinion” and therefore cannot serve as the basis for a defamation claim. While defendants are correct that the mere use of the term “bitch” has generally been held to be non-actionable opinion, given the context of the conversation in which Reed’s statement was allegedly uttered—a discussion between Reed, plaintiff’s former employer, and another individual from whom plaintiff was seeking employment, concerning plaintiff and pertaining to “the end” of plaintiff’s employment with Reed Eye and Westfall (that is, her termination or her performance during the period immediately preceding it), the statement could also be interpreted as an actionable “mixed opinion” hinting at the reasons for plaintiff’s termination, one which is unaccompanied by any supporting facts and “implies that it is based upon undisclosed detrimental facts which justify the opinion but are unknown to those… hearing it.” Parks v. Steinbrenner, 131 A.D.2d 60, 62–63, 520 N.Y.S.2d 374 (App.Div. 1st Dept. 1987). See e.g., Lian v. Sedgwick James, Inc., 992 F.Supp. 644, 649 (S.D.N.Y.1998). “Determining whether particular statements, or particular words, express fact or opinion is oftentimes an exercise beset by the uncertainties engendered by the imprecision and varying nuances inherent in language.” Parks, 131 A.D.2d 60 at 63, 520 N.Y.S.2d 374. Nonetheless, construing all inferences in plaintiff’s favor, as I must on this motion, and considering the circumstances under which Reed’s statement was allegedly made, I find that in light of the relaxed pleading standards of Fed. R. Civ. Proc. 8, plaintiff has managed to state a plausible defamation claim against Reed at this juncture. See generally Matter of Cohen v. Google, Inc., 25 Misc.3d 945 at 951, 887 N.Y.S.2d 424 (Sup.Ct. New York County 2009)(terms such as “skank bitch” are sufficiently susceptible to a defamatory connotation to support defamation claim).
The court found, however, that plaintiff stated a defamation claim against defendant Bloom. It explained, among other things: “Bloom’s memorandum expressing his “opinion” concerning Weissend’s and plaintiff’s interactions, while dismissive of plaintiff’s complaints of sexual harassment, does not impugn plaintiff’s character or competence, nor does it otherwise communicate any other allegedly false fact concerning plaintiff.”
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