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holding that there was no false imprisonment where the plaintiff was not forced to stay at an interview and was not told she was not free to leave
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Case No. 03-CV-0039 (FB)(LB)
December 2, 2003
MARYLYNN CELLAMARE, Staten Island, NY, for Plaintiff Pro Se
KATHLEEN McKENNA, ESQ., and VICTORIA RICHTER, ESQ., Proskauer Rose LLP, New York, NY, For Defendants
MEMORANDUM ORDER
Pro se plaintiff Marylynn Cellamare ("Cellamare") brings this action against her former employer, Milbank, Tweed, Hadley McCloy LLP ("Milbank"), and one of Milbank's attorneys, Stephen J. Blauner ("Blauner") (together, "defendants"). Defendants move to dismiss Cellamare's complaint pursuant to Fed.R.Civ.Pro. 12(b)(6); alternately, they move to transfer venue to the Southern District. Cellamare moves for summary judgment and for sanctions. For the reasons set forth below, the Court declines to transfer venue, grants in part and denies in part the defendants' motion to dismiss, and denies Cellamare's motions for summary judgment and sanctions.
I.
For purposes of addressing defendants' motion to dismiss, the Court accepts as true the following facts, taken from Cellamare's rambling, twenty-nine page, nine-count complaint, and draws all reasonable inferences in her favor. See Taylor v. Vermont Dept. of Educ., 313 F.3d 768, 776 (2d Cir. 2002) ("In ruling on a Rule 12(b)(6) motion, [the Court is to] accept the allegations contained in the complaint as true and draw all reasonable inferences in favor of the nonmoving party.").
A. Facts and Claims Relating to Count Three ("Violation of Title VII of the Civil Rights Act of 1964") and Count Four ("Hostile Work Environment")
Cellamare, a white female, began her employment with Milbank on July 10, 1978, working as a legal secretary until July 10, 2000, when she became one of the law firms's night word processors. During her time at Milbank, she "received good reviews and good raises, emails of praise from her supervisor . . . received many compliments from lawyers on her work,. . . and was never disciplined in the course of her work." Compl. at ¶ 56. Cellamare, the only white employee on the night shift, alleges that the word processing manager, Corey Myers ("Myers"), an African-American, was "racist and didn't like white people." Id at ¶ 79. Myers refused Cellamare's requests to work Sunday nights rather than Friday nights and to begin work at 8:00 rather than 8:30, but granted the same requests made by African-American employees. When Milbank's African-American employees acted as lead word processors, they were given extra pay for their extra work, but when Cellamare acted as lead word processor, she was denied the additional wage. Myers expressed suspicion as to Cellamare's motives for working in the word processing department and "repeatedly made [Cellamare] feel uncomfortable by asking [her] why [she] wanted the job." Id. Myers chatted with other African-American employees, "calling each other soul sisters," which made Cellamare "obviously fe[el] out of place." Id.
Myers yelled at Cellamare in front of other employees and was "particularly hostile toward plaintiff" after Cellamare successfully organized the employees to complain about having to ask for permission to use the bathroom or to go for a drink of water. Id. at ¶ 90. Following the September 11th attack, Cellamare wanted to wear a facial mask to protect against dust; Myers told her that "it would look stupid and it would look bad for the firm." Id. at ¶ 79. On another occasion, when Cellamare borrowed a computer mouse from another machine after hers stopped working, Myers incorrectly told Cellamare that she had violated firm policy.
In mid-January of 2002, Cellamare notified Myers and Milbank's Human Resources Department that she "was going out on disability on March 15th because of a painful bone deformity and [that she] needed an operation. Id. at ¶ 79. Myers did not express any sympathy toward Cellamare's condition but "kept talking about" the needs of another Milbank employee, an African-American, who was also facing health problems. Two weeks after gaving notice that she was going out on disability, she was fired.
Finally, Cellamare's complaint states that she is "in [her] 40's and Milbank has been hiring younger people at a lower rate . . . This harmed me because I lost my job because of it[.]" Id. at ¶ 79.
Based on these allegations, Cellamare avers that she "was subjected to discriminatory treatment by her employer because of her race, disability — and age, with respect to the terms, conditions, and privileges of her employment[.]" Id. at ¶ 79. She also claims that "[t]he harassment and discrimination . . . was so pervasive, persistent and severe as to alter the conditions of plaintiff's employment with [Milbank] and to create a hostile and abusive working environment." Id. at ¶ 92.
B. Facts and Claims Relating to Count One (" 42 U.S.C. § 1983 Violation"), Count Two ("Infringement of Liberty Interest"), Count Five ("Fraudulent Inducement"), Count Six ("Unlawful Imprisonment"), Count Seven ("Fraud, Libel and Defamation"), Count Eight ("Liability of Defendants [Milbank] and [Blauner] for Breach of Plaintiff's Constitutional Rights"), and Count Nine ("Unlawful Termination Discharge")
In December of 2001, Milbank was retained as counsel for the Unsecured Creditors Committee of Enron Corporation ("Unsecured Creditors Committee"). Milbank also represented Robert Belfer ("Belfer"), a director of Enron. "[B]eliev[ing] it was against legal ethics to simultaneously represent" both the Unsecured Creditors Committee and Belfer, Cellamare contacted a reporter at The American Lawyer and "shared the conflict of interest with the reporter." Id. at ¶¶ 21, 27.
After learning that Cellamare had contacted the reporter, Milbank summoned Cellamare to a meeting. During the meeting, which commenced late in the night of January 31, 2002 and continued into the early morning hours of the next day, Milbank:
kept plaintiff Marylynn Cellamare against her will in a conference room, called her names, called her a liar, accused her unjustly, did not tell her she could leave, did not tell her she could have counsel present, and after more than five hours of interrogation, plaintiff Marylynn Cellamare began to feel sick, shaky, nauseated, and wanted [to] leave and told [Milbank].
On February 1, 2002, [Milbank] told the ill, thirsty, and worn-out Plaintiff Marylynn Cellamare that if she signed a statement saying she shared confidential information even though she didn't, that they would let her leave. Plaintiff Marylynn Cellamare was so desperate and sick at that time that, because she would have done anything to leave, and since they told her they would fire her if she didn't sign, she thought there was the slightest chance she might be spared after working there 23 years without a problem, and because free speech is protected by the Constitution, and she didn't feel that they could fire her so unjustly, she signed the false statement at or about 4:00 a.m. in the morning.Id. at ¶¶ 34, 35. Even though it knew her statement was false and intended to fire her regardless of whether she admitted to disclosing the information, Milbank told Cellamare that "she could go back to work if she signed but would be fired if she didn't sign." Id. at ¶ 98. Hoping to return to work, Cellamare relied on Milbank's representation, but "[i]mmediately after" Cellamare signed the statement, Milbank terminated her. Id. at ¶ 36. Cellamare later "recanted . . . her fraudulently induced statement and executed an amended and correct one which told the truth[.]" Id. at ¶ 43.
On March 15, 2002, Cellamare wrote to the bankruptcy judge handling the Enron case to bring Milbank's alleged conflict to the bankruptcy court's attention. In response to Cellamare's letter, Blauner submitted to the bankruptcy court an affidavit "containing scathing, libelous, defamatory and totally unsubstantiated allegations against plaintiff Marylynn Cellamare." Compl. at ¶ 45.
When Cellamare sought subsequent employment elsewhere, Milbank "hindered her job search[,]" with the result that she "was unable to obtain a job comparable to the one she had at [Milbank] because [Milbank] refused to answer any questions about plaintiff and/or gave a negative inference." Id. at ¶ 108.
Based on these allegations, Cellamare claims that the defendants, acting under color of state law, "deprived her of "rights, privileges, immunities secured by the Constitution" and "are therefore liable to Plaintiff for breach of [her] Constitutional rights[,]" id. at ¶ 67, 116; that "the manner in which Plaintiff was terminated and the statements made by defendants concerning his [sic] termination infringed upon Plaintiffs liberty interest in his [sic] employment as guaranteed by the Fourteenth Amendment[,]" id. at 73; that Milbank "committed fraudulent inducement" and unlawfully imprisoned her; id. at ¶¶ 98, 102; and that defendants "committed [l]ibel and defamation" and significantly foreclose[d] Plaintiffs possibility of future successful employment in the field in which she was employed by [Milbank,]" id. at ¶¶ 72, 106.
On or about May 27, 2002, Cellamare filed a charge with the Equal Employment Opportunity Commission ("EEOC") and later received a right-to-sue letter.
II.
Observing that Milbank's principal place of business is in the Southern District, that Blauner resides there, and that the events giving rise to Cellamare's complaint occurred in Milbank's Manhattan office, Milbank contends that venue is not proper in the Eastern District, and that even if it is, the matter should be transferred to the Southern District as the more convenient forum. The Court disagrees.Title VII actions may be brought "in any judicial district in the State in which the unlawful employment practice is alleged to have been committed." 42 U.S.C. § 2000e-5(f). Accordingly, the Eastern District, as one of New York's four judicial districts, is a proper venue for Cellamare's Title VII claims. See Abidekun v. The Mary Imogene Bassett Hosp., 1996 WL 68555, at *3 (E.D.N.Y. 1996) (plaintiff alleging race discrimination at hospital located in New York "could file his Title VII claim in any judicial district in the State of New York"); see also Richardson v. Alabama State Board of Education, 935 F.2d 1240, 1248 (11th Cir. 1991) ("This means anywhere in the relevant state."); Ailkin v. Harcourt Brace Jovanovich, Inc., 543 F. Supp. 987 (W.D.N.Y. 1982) ("the statute means exactly what it says: Venue is not limited to the judicial district in which the alleged unlawful acts occurred").
Although venue for Cellamare's other claims — those relating to the disclosure of the alleged Enron conflict of interest — would ordinarily lie in the Southern District, where all the defendants reside and where the claim arose, see 28 U.S.C. § 1391 (b), in light of "the propriety of venue over the Title VII claims, this Court may also exercise venue over plaintiffs factually related [non-Title VII] claims[.]" Rodriguez v. Chandler, 641 F. Supp. 1292, 1302 (S.D.N.Y. 1986). "Whether to apply such 'pendent venue' is a discretionary decision, based on considerations of judicial economy, convenience to the parties and the court system, avoidance of piecemeal litigation, and fairness to the litigants." Id. (noting that "Pendent venue has often been used in cases in which venue over one claim is already established under a specialized venue statute.") (Footnotes omitted.) While it appears that the facts underlying Cellamare's discrimination claims are somewhat separate from her other claims, all of the relevant facts occurred at Milbank's offices and involved Milbank representatives. Under the circumstances, considerations of judicial economy, convenience, avoidance of piecemeal litigation, and fairness counsel in favor of keeping all claims in the Eastern District. Based upon similar considerations, the Court declines the defendants' request to transfer the matter to the Southern District on forum non conveniens grounds.
28 U.S.C. § 1391(b) provides:
A civil action wherein jurisdiction is not founded solely on diversity of citizenship may, except as otherwise provided by law, be brought only in (1) a judicial district where any defendant resides, if all defendants reside in the same State, (2) a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situated, or (3) a judicial district in which any defendant may be found, if there is no district in which the action may otherwise be brought.
III.
A pro se complaint should not be dismissed unless "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957). When considering a motion to dismiss a pro se complaint, "courts must construe [the complaint] broadly, and interpret [it] to raise the strongest arguments that [it] suggest[s]." Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000) (internal quotation marks omitted). "This is especially true when dealing with civil rights complaints." Weinstein v. Albright, 261 F.3d 127, 132 (2d Cir. 2001). In addition, the Court notes that "parties are permitted by law . . . to plead inconsistent theories." Doral Produce Corp. v. Paul Steinberg Assoc., Inc., 347 F.3d 36, 39 (2d Cir. 2003).
1. Federal Claims
As an initial matter, the Court observes that the Supreme Court has rejected a "heightened pleading standard in employment discrimination cases[.]" Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 512 (2002). In Swierkiewzicz, the Supreme Court addressed "whether a complaint in an employment discrimination lawsuit must contain specific facts establishing a prima facie case of discrimination under the framework set forth by this Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)." The Court "h[e]ld that an employment discrimination complaint need not include such facts and instead must contain only 'a short and plain statement of the claim showing that the pleader is entitled to relief.' Fed. Rule Civ. Proc. 8(a)(2)." Id. "Such a statement must simply 'give the defendant fair notice of what the plaintiffs claim is and the grounds upon which it rests.'" Id. at 512 (quoting Conley, 355 U.S. at 47). Following Swierkiewicz, the Second Circuit has instructed that a Title VII plaintiff "need not set forth circumstances supporting an inference of discrimination in order to survive a Rule 12(b)(6) motion." Phillip v. Univ. of Rochester, 316 F.3d 291, 298 (2d Cir. 2003). It should be noted, however, that it is possible that a complaint could contain such conclusory or general allegations so as to deprive the defendant of fair notice of the nature of a claim. See id. at 514 ("If a pleading fails to specify the allegations in a manner that provides sufficient notice, a defendant can move for a more definite statement under Rule 12(e) before responding"); Hilska v. Jones, 217 F.R.D. 16, 21 (D.D.C. 2003) ("a complaint that contains only vague and conclusory claims with no specific facts supporting the allegations may not give the defendant fair notice of the claims against him and thus would not allow the defendant to devise a competent defense") (citing Swierkiewicz, 534 U.S. at 514). Finally, the Court notes that Swierkiewicz has been applied, or questions about its application have arisen, in broader contexts than the age discrimination case in which it arose. See, e.g., Toussie v. Powell, 323 F.3d 178, 185 n. 3 (2d Cir. 2003) (declining to consider whether Swierkiewicz overruled Second Circuit's prior case law regarding pleading requirements for § 1983 conspiracy claims); Phillip, 316 F.3d at 299 ( Swierkiewicz applies to § 1981 claims); Wait v. Beck's North America, Inc., 241 F. Supp.2d 172, 179 (N.D.N.Y. 2003) ( Swierkiewicz applies to hostile work environment claims). To the Court's dismay, defendants have not even acknowledged 'the Swierkiewicz case.
A. Count Three ("Violation of Title VII of the Civil Rights Act of 1964")
i. Race
Cellamare's allegation that she was denied equal pay because of her race and that her requests to work certain days and hours were refused on racial grounds states a claim under the liberal standard enunciated in Swiekiewicz. See 42 U.S.C. § 2000e-2(a)(1) (prohibiting discrimination with regard to the "terms, conditions, and privileges" of employment); Annis v. County of Westchester, 136 F.3d 239, 248 (2d Cir. 1998) (gender-motivated denial of equal pay cognizable under Title VII); Bennett v. Schmidt, 153 F.3d 516, 518 (7th Cir. 1998) (complaint that simply states that "I was turned down for a job because of my race" states a claim for racial discrimination under Title VII).
ii. Disability
Cellamare has adequately stated a disability discrimination claim. Reading her complaint liberally, she alleged that her foot condition constituted a disability, see 42 U.S.C. § 12102(2) (defining disability as "a physical or mental impairment that substantially limits one or more of the major life activities[,]" "a record of such an impairment[,]" or "being regarded as having such an impairment"), that as a secretary with an excellent service record she was otherwise qualified to continue working at Milbank, and that two weeks after notifying Milbank that she needed an operation she was terminated because of her disability. See Weixel v. Board of Educ. of City of New York, 287 F.3d 138, 146-147 (2d Cir. 2002) ("[A] plaintiff's complaint is sufficient to withstand [a motion to dismiss] if it alleges that (1) [the plaintiff] has a disability for purposes of . . .[the Americans With Disabilities Act ("ADA")], (2) she is otherwise qualified for the benefit that has been denied, and (3) she has been denied the benefit by reason of her disability.",); Reed v. A.W. Lawrence, 95 F.3d 1170, 1178 (2d Cir. 1996) (causal connection can be established "indirectly by showing that the protected activity was closely followed in time by the adverse action").
iii. Age
The ADEA generally prohibits age discrimination against those over forty years old. See 29 U.S.C. § 621, 631(a)(b). In Swierkiewicz, the plaintiff alleged, inter alia, that he was removed from his position in favor of a thirty-two year old man. The Supreme Court found that the plaintiff "easily satisfie[d]" the requisite pleading requirements because his complaint "detailed the events leading to the termination, provided relevant dates, and included the ages . . . of at least some of the relevant persons involved in his termination." Swierkiewicz, 534 U.S. at 514.
Cellamare alleged that she is "in [her] 40's", that Milbank "has been hiring younger people at a lower rate," and that she was terminated because of her age. Compl. at ¶ 79. She has not specified the ages of these "younger people."
Notably, the circuit courts are split on whether the ADEA provides a cause of action when an employer discriminates against an employee within the protected class in favor of another employee who is also within the protected class. Cf. Cline v. General Dynamics Land Systems, Inc., 296 F.3d 466, 467 (6th Cir. 2002) (holding that the ADEA "provides a cause of action for employees within the protected class who claim that their employer discriminated against them on the basis of age because of the employer's more favorable treatment of older employees, also within the class") with Hamilton v. Caterpillar, Inc., 966 F.2d 1226, 1228 (7th Cir. 1992) ("The ADEA does not provide a remedy for reverse age discrimination") and Schuler v. Polaroid Corp., 848 F.2d 276, 278 (1st Cir. 1988) (ADEA "does not forbid treating older persons more generously than others") (original emphasis). On April 21, 2003, the Supreme Court accepted certiorari in Cline and presumably will resolve the split. See 123 S.Ct. 1786 (accepting certiorari).
For pleading purposes, the Court concludes that Cellamare has sufficiently put Milbank on inquiry notice of her age discrimination claim. Milbank can readily determine the ages of the "younger workers" it allegedly hired after it terminated Cellamare's employment; those employees' ages, as well as whether Milbank replaced Cellamare with them, are factual matters more appropriately addressed in summary judgment proceedings after the Supreme Court has spoken in Cline.
B. Count Four ("Hostile Work Environment")
To prevail on a hostile work environment claim, a plaintiff must show that the workplace was "permeated with discriminatory intimidation, ridicule, and insult — sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks omitted). By citing race-based run-ins with Myers, and alleging that" [t]he harassment and discrimination . . . was so pervasive, persistent and severe as to alter the conditions of plaintiff's employment with [Milbank] and to create a hostile and abusive working environment[,]" Compl. at ¶ 92, Cellamare has stated a claim. See Wait, 241 F. Supp.2d at 179 ("a plaintiff need not lay bare her proof or demonstrate a prima facie case of a hostile work environment. Rather, plaintiff need only 'give [defendant] fair notice of what [her] claims are and the grounds upon which they rest . . .[and] state claims upon which relief could be granted'").
C. Counts One (42 U.S.C. ¶ 1983) and Eight ("Breach of Plaintiff's Constitutional Rights")
Counts One and Eight, which allege that defendants are liable under 42 U.S.C. § 1983 for violations of Cellamare's civil rights, are dismissed because Milbank, a private law firm, and Blauner, an individual affiliated with the firm, are private entities, not state actors. See Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308, 312 (2d Ctr. 2003) ("A plaintiff pressing a claim of violation of his constitutional rights under § 1983 is — required to show state action."); United States v. International Brotherhood of Teamsters, 941 F.2d 1292, 1295 (2d Cir. 1991) ("Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes 'state action.'").
D. Count Two ("Infringement of Liberty Interest")
As set forth above, Count Two alleges that defendants' "statements and the manner in which [Cellamare] was terminated are stigmatizing and false [and] significantly foreclose [Cellamare's] possibility of future successful employment in the field in which she was employed." Compl. at ¶ 72. To invoke a cognizable liberty interest, a plaintiff must satisfy the "stigma plus" standard. Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002). "This means that, in addition to alleging defamation, a plaintiff must allege that 'the defamation occurred in the course of the termination of governmental employment or was coupled with a deprivation of a legal right or status.' The loss of private employment coupled only with a 'foreclosure of other employment opportunities' is insufficient." Drake v. Laboratory Corporation of America Holdings, ___ F. Supp.2d. ___, slip op. at 18 (E.D.N.Y. Nov. 18, 2003) (citing Easton v. Sundram, 947 F.2d 1011, 1016 (2d Cir. 1991)).
"Although the Second Circuit has observed that outside the loss of government employment, 'it is not entirely clear what the 'plus' is,'" id. (citations omitted), the pertinent case law suggests that there must be some government involvement, whether it be interference with one's license to practice a profession, see Neu v. Afjehei, 869 F.2d 662, 670 n. 3 (2d Cir. 1989), the existence of a "statutory impediment established by the state," see Valmonte v. Bane, 18 F.3d 992 (2d Cir. 1994), or other governmental involvement. See Abramson, 278 F.3d at 103 (union members not rehired by public benefit corporation running the Javits Center could not show deprivation of legal right or status); Morris v. Lindau, 196 F.3d 102 (2d Cir. 1999) (demotion in government employment not a deprivation of legal right or status); Eastern v. Sundram, 947 F.2d 1017 (2d Cir. 1991) (psychiatrist terminated from non-profit entity because of, among other things, an investigation by the New York State Office of Mental Health was not deprived of legal right or status). Because Milbank's termination of Cellamare, an at-will, non-governmental employee, was not related to any governmental activity, Cellamare cannot satisfy the "plus" element; hence, Count Two is dismissed.
2. State Claims
A. Count Five ("Fraudulent Inducement")
"In order to state a claim for fraudulent inducement under New York law, a plaintiff 'must show [a] misrepresentation or a material omission of fact which was false and known to be false by defendant, made for the purpose of inducing the other party to rely upon it, justifiable reliance of the other party on the misrepresentation or material omission, and injury.'" Manliguez v. Joseph, 226 F. Supp.2d 377, 390 (E.D.N.Y. 2002) (citing Shea v. Hambros, 673 N.Y.S.2d 369, 373 (1998)). "While mere promissory statements as to what will be done in the future are not actionable, it is settled that, if a promise was actually made with a preconceived and undisclosed intention of not performing it, it constitutes a misrepresentation of a material existing fact." Sabo v. Delman, 3 N.Y.2d 155, 160 1957) (citation omitted); see also Moon v. Clear Channel Communications, Inc., 763 N.Y.S.2d 157, 160-161 (3rd Dep't 2003). Because Cellamare pled each of the elements of fraudulent inducement, dismissal of Count Five for failure to state a claim is inappropriate.
B. Count Six ("Unlawful Imprisonment")
Due to the absence of any state action, the Court construes Count Six as arising under state, not federal, law. See Rizzo v. Host Services of New York, Inc., 545 F. Supp. 1193, 1195 (E.D.N.Y. 1982) (state action necessary to assert claim for deprivation of federal constitutional right to liberty;" [t]hat right, like other rights, is protected by the Fourteenth Amendment only against infringement by governments"). To state a claim for false imprisonment under New York law, a plaintiff must allege that (1) the defendant intended to confine her; (2) the plaintiff was conscious of the confinement; (3) the plaintiff did not consent to the confinement; and (4) the confinement was not otherwise privileged. King v. Crossland Savings Bank, 111 F.3d 251, 255 (2d Cir. 1997). In addition, "[a] false imprisonment claim requires a prima facie showing of actual confinement or threatening conduct." Lee v. Bankers Trust Company, 1998 WL 107119, at *5 (S.D.N.Y. Mar. 11, 1998).
Even accepting as true Cellamare's allegations that she was brought to a small room, interrogated for hours, called names, not told that she could leave or have counsel present, and was induced to sign the statement with a promise that she would then be able to leave, and drawing all reasonable inferences in her favor, the incident does not rise to anything more than a lengthy interview by an employer. "A lengthy interview of an employee by an employer, without more, does not support a claim for false imprisonment." Lee, 1998 WL 107119 at *4 (citing Niemann v. Whalen, 911 F. Supp. 656, 666-67 (S.D.N.Y. 1996)). Milbank did not tell Cellamare that she was not free to leave and there is no allegation that Milbank forced her to stay. See Lee (no unlawful imprisonment where employee was questioned by security personnel who passed themselves off as former FBI agents and prepared a confession for plaintiff to sign). "Plaintiffs fear that she would be arrested or fired if she left does not constitute the detaining force necessary to establish a tort of false imprisonment." Malanga v. Sears, Robuck and Co., 487 N.Y.S.2d 194, 196 (4th Dep't 1985) (no confinement where employee was questioned during regular business hours in familiar surroundings, was not threatened in any way, and was free to leave at any time). See also Arlington v. Liz Claiborne, Inc., 688 N.Y.S.2d 544, 546 (1st Dep't 1999) (no false imprisonment claim stated where employees, who were questioned by security about fraudulent time sheets, believed that the door to the office was locked and felt that they were not free to leave because they were that told that police would be called if they did not sign written agreements). Accordingly, Count Six is dismissed.
C. Count Seven ("Fraud, Libel and Defamation")
Construed liberally, Count Seven alleges defamation, which "consist[s] of the twin torts of libel and slander." Albert v. Loksen, 239 F.3d 256, 265 (2d Ctr. 2001). "The gravaman of an action alleging defamation is an injury to reputation. The New York Court of Appeals has defined a defamatory statement as one that exposes an individual to public hatred, shame, obloquy, contumely, odium, contempt, ridicule, aversion, ostracism, degradation, or disgrace, or . . . induce [s] an evil opinion of one in the minds of right-thinking persons, and . . . deprives one of . . . confidence and friendly intercourse in society." Celle v. Filipino Reporter Enterprises Inc., 209 F.3d 163, 177 (2d Cir. 2000) (quoting Kimmerle v. New York Evening Journal, 262 N.Y. 99 (1933)). "Whether particular words are defamatory presents a legal question to be resolved by the court[s] in the first instance." Id. (citation omitted).
Cellamare alleges that Blauner libeled her in his affidavit to the Enron bankruptcy court and Milbank defamed her (either by libel or slander, or both) in its communications with her prospective employers.
i. Blauner
Oral or written statements made in the course of judicial proceedings are absolutely privileged if they are material or pertinent to the litigation. Dougherty v. Flanagan, Kelly, Ronan, Spollen, Stewart, 535 N.Y.S.2d 422, 423 (2nd Dep't 1988). The test is "extremely liberal" and "embraces anything that may be possibly or plausibly be relevant or pertinent, with the barest rationality, divorced from any palpable or pragmatic degree of probability." Grasso v. Mathew, 564 N.Y.S.2d 576, 578 (3rd Dep't 1991). The allegedly defamatory affidavit that Blauner submitted to the bankruptcy court was in response to Cellamare's letter accusing the defendants of an unethical conflict of interest regarding the simultaneous representation of an Enron director and the Enron Creditors Committee. Submitted, as it was, in the course of a judicial proceeding, the Court concludes that the absolute privilege applies.
ii. Milbank
Communications between a "plaintiff's former employer . . .[and] the plaintiff's prospective employer cannot support a cause of action to recover damages for defamation" because New York recognizes a "qualified privilege" with respect to communications between former and prospective employers "as to the character of a former employee . . . even though such information may prove ultimately to be inaccurate." Serratore v. American Port Services, Inc., 739 N.Y.S.2d 452, 465-66 (2nd Dep't 2002) (citing DeSapio v. Kohlmeyer, 383 N.Y.S.2d 16, 17 (1st Dep't 1976)). The privilege can be overcome only by a showing that the defamatory remarks "were made with actual malice." DeSapio 383 N.Y.S.2d at 17. Although a plaintiff need not allege defamatory statements verbatim, the complaint must "afford defendant sufficient notice of the communications complained of to enable him to defend himself." Kelly v. Schmidberger, 806 F.2d 44, 46 (2d Ctr. 1986). Because Cellamare's vague allegation about "negative inference" is insufficient for this purpose, the claim is dismissed, but the Court will afford Cellamare thirty days from the date of this Memorandum and Order to amend her complaint to afford her the opportunity to set forth sufficient factual allegations in support of her claim that Milbank defamed her when communicating with her prospective employers. See Gomez v. USAA Fed. Sav. Bank, 171 F.3d 794, 795 (2d Cir. 1999) (court should not dismiss pro se complaint when liberal reading of complaint "gives any indication that a valid claim might be stated," without at least once granting leave to amend).
3. Count Nine ("Unlawful Termination Discharge")
Count Nine, which merely avers causation and lists a series of damages Cellamare claims to have suffered, is neither a federal nor a state claim; accordingly, it is dismissed. If, by reason of her heading, Cellamare is attempting to allege a tortious wrongful termination based on state law, the Court notes that "New York does not recognize the tort of wrongful discharge . . . and there is no exception for firings that violate public policy such as, for example, discharge for exposing an employer's illegal activities." Lobosco v. New York Telephone Company/NYNEX, 96 N.Y.2d 312, 316 (2001).
IV.
Cellamare's motion for summary judgment is denied because genuine issues of material facts exist as to the merits of all her remaining claims. Seeded, R. Civ. Proc. 56(c). Her request for sanctions is denied.CONCLUSION
Defendants' motion to dismiss is granted with respect to Counts One, Two, Eight and Nine, and is denied as to Counts Three, Four, Five and Six. Count Seven is dismissed, but Cellamare may, within thirty days of the date of this Memorandum and Order, amend her complaint regarding her conclusory allegation that Milbank defamed her in the course of her attempts to find other employment. Cellamare's motions for summary judgment and sanctions are denied.
SO ORDERED.