Opinion
09 Civ. 8911 (BSJ).
September 14, 2010
Opinion Order
This action arises out of the termination of employment of Plaintiff Phillip A. Vaughn by Defendant American Multi Cinema, Inc. ("AMC"). Before the Court is Defendant's motion for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, Defendant's motion is GRANTED.
BACKGROUND
The following facts are taken from the Complaint. Vaughn was employed by AMC at the Empire 25 theater, located at 234 West 34th Street in New York, New York, from October 4, 2007 to December 5, 2008. In the Complaint, Vaughn details a series of incidents and disciplinary actions that culminated in his termination. According to the Complaint, on November 6, 2008, Vaughn was disciplined by AMC for failing to follow a superior's directive that he not sit down while waiting for an elevator during working hours. (Compl. 3, 6.) Around this time, Vaughn was also disciplined multiple times for a series of cash discrepancies at the concession stand where he was in charge. (Compl. 9-11.) After the incident for which he was disciplined for sitting down while at work, Vaughn continued to have conflicts with supervisors and human resources representatives. During this time, Vaughn received "numerous disciplinary warnings[,] sometimes two in one day." (Compl. 11.) Vaughn was ultimately terminated by AMC for "Violation of AMC's Work Conduct Policies" on December 5, 2008. (Compl. 11-12; Ex. 1D.)
Following his termination, Vaughn, proceeding pro se, instituted this action. Vaughn brought suit against AMC in New York State Supreme Court on August 28, 2009, asserting causes of action for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, breach of implied contract, and retaliation under New York's Whistleblowers' Act. Defendant removed the action to this Court on October 21, 2009. Before the Court is Defendant's motion for dismissal pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons that follow, Defendant's motion is granted.
Vaughn seeks an award of compensatory damages of $2,000,000 and punitive damages of $3,000,000. Vaughn is a resident of New York. AMC is incorporated under the laws of Delaware with a principle place of business in Kansas City, Missouri. Thus, complete diversity exists between the plaintiff and AMC and the amount in controversy exceeds $75,000. See 28 U.S.C. § 1332.
LEGAL STANDARD
Rule 12(b)(6) of the Federal Rules of Civil Procedure provides for dismissal of a complaint that fails to state a claim upon which relief may be granted. "In ruling on a motion to dismiss for failure to state a claim upon which relief may be granted, the court is required to accept the material facts alleged in the complaint as true." Frasier v. Gen. Elec. Co., 930 F.2d 1004, 1007 (2d Cir. 1991). The court is also required to read a complaint generously, drawing all reasonable inferences from its allegations in favor of the nonmoving party. McCarthy v. Dun Bradstreet Corp., 482 F.3d 184, 191 (2d Cir. 2007); see also Cal. Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 515 (1972).
"While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do."Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (internal quotations omitted). Instead, a plaintiff must assert "enough facts to state a claim to relief that is plausible on its face."Id. at 570. "A claim has facial plausibility when the pleaded factual content allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."Ashcroft v. Iqbal, 129 S. Ct. 1937, 1940 (2009). Thus, when evaluating a motion to dismiss pursuant to Rule 12(b)(6), a court must identify a complaint's non-conclusory factual allegations and determine if, taken as true and construed in the plaintiff's favor, they permit "the court to draw a reasonable inference that the defendant is liable for the misconduct alleged." Id. at 1949. The court may consider "any written instrument attached to [the complaint] as an exhibit, materials incorporated in it by reference, and documents that, although not incorporated by reference, are `integral' to the complaint." Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004) (citations omitted).
When the plaintiff is proceeding pro se, the court must construe his pleadings liberally. Triestman v. Fed. Bureau of Prisons, 470 F.3d 471, 474 (2d Cir. 2006); see also Pabon v. Wright, 459 F.3d 241, 248 (2d Cir. 2006). The court is required to interpret a pro se plaintiff's complaint "broadly, to raise the strongest arguments that [it] suggest[s]." Weixel v. Bd. of Educ., 287 F.3d 138, 145-46 (2d Cir. 2002) (quoting Cruz v. Gomez, 202 F.3d 593, 597 (2d Cir. 2000)) (alterations in original). Such complaints are held to "less stringent standards than formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972). Nevertheless, a pro se plaintiff must still comply with relevant rules of procedural and substantive law.Traguth v. Zuck, 710 F.2d 90, 95 (2d Cir. 1983). Accordingly, "[c]onclusory allegations or legal conclusions masquerading as factual conclusions will not suffice to defeat a motion to dismiss." Achtman v. Kirby, McInerney Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006) (quoting Smith v. Local 819 I.B.T. Pension Plan, 291 F.3d 236, 240 (2d. Cir. 2002)).
DISCUSSION
In his Complaint, Vaughn alleges that: (1) Vaughn's disciplinary warning stemming from the November 6 incident defamed Vaughn (Compl. 13-14); (2) AMC committed intentional infliction of emotional distress by improperly disciplining Vaughn and then terminating his employment when he complained (Compl. 12, 18); (3) AMC committed negligent infliction of emotional distress when managers and a human resources representative failed to properly investigate Vaughn's grievance claim stemming from the November 6 incident (Compl. 14-16); (4) AMC breached Vaughn's implied employment contract (Compl. 17); and (5) AMC violated New York's Whistleblower Act by firing Vaughn in retaliation for filing his grievance (Compl. 19). For the reasons discussed below, each of Vaughn's causes of action fails to state a claim for which relief can be granted.
1. Defamation (Counts 2 and 3)
Vaughn's claims of libel and slander stem from statements made by assistant manager Karen Cruz and transcribed in the disciplinary warning by senior manager Adam McRee. These statements concern the November 6 incident where Vaughn failed to rise when asked by Cruz. Vaughn claims that two of the statements in the disciplinary warning were defamatory: (1) "[Vaughn] has a history of misunderstanding instructions"; and (2) "An OC, Karen Cruz, asked him to get back to work. He replied `No' and refused to stand up." (Compl. 4; Ex. 1A.) Vaughn claims that both of these statements were false and ultimately caused him to lose his job. (Compl. 6). Vaughn's allegations fail to state a claim upon which relief may be granted as both statements in the disciplinary warning are privileged communications under New York law.
"To state a claim for defamation under New York Law, the plaintiff must allege (1) a false statement about the plaintiff; (2) published to a third party without authorization or privilege; (3) through fault amounting to at least negligence on [the] part of the publisher; (4) that either constitutes defamation per se or caused `special damages.'" Gargiulo v. Forster Garbus, Esqs., 651 F. Supp. 2d 188, 192 (S.D.N.Y. 2009) (citing Dillon v. City of New York, 261 A.D.2d 34, 704 N.Y.S.2d 1, 5 (1st Dep't 1999)).
With regard to the second element of a defamation claim, New York recognizes a qualified privilege for allegedly defamatory statements made between persons who share a common interest in the subject matter. See El-Hennawy v. Davita, Inc., 50 A.D.3d 625, 853 N.Y.S.2d 925, 925 (2d Dep't 2008) (citing Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 665 N.E.2d 153 (1996)). Under New York law, "[c]ommunications by supervisors or co-workers made in connection with the evaluation of an employee's performance, including allegations of employee misconduct and communications regarding the reasons for an employee's discharge, fall within the privilege." Albert v. Loksen, 239 F.3d 256, 272 (2d Cir. 2001). It is essential for the functioning of a business that "an employer's agents must be free, within certain bounds, to communicate with it regarding the performance of persons in its employ." Mandelblatt v. Perelman, 683 F. Supp. 379, 385 (S.D.N.Y. 1988); see also Albert, 239 F.3d at 268 ("No workplace, we think, can operate effectively unless the employers and employees who work there have the ability to speak freely in evaluating the actions of their employees and co-employees."); Ello v. Singh, 531 F. Supp. 2d. 576 (S.D.N.Y. 2007) ("In the employment context, the qualified privilege is recognized as protecting the free flow of information.").
The qualified privilege only protects statements "to the extent that the communication is expressed in a reasonable manner for a proper purpose." Mandelblatt, 683 F. Supp. at 385. The privilege may be forfeited if the defendant makes "a false, defamatory statement with `malice' of either the common-law or constitutional variety." Albert, 239 F.3d at 272. "Common-law malice means spite or ill will and defeats the privilege only if it is the one and only cause for the publication." Id. (internal quotation marks and citations omitted). "Constitutional or `actual' malice means publication with knowledge that the statement was false or reckless disregard of whether it was false or not." Id. (internal quotation marks and citations omitted). Under New York defamation law, "[m]ere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege." Thai v. Cayre Group, Ltd., No. 10 Civ. 269 (SAS), 2010 WL 2710615, at *3 (S.D.N.Y. July 8, 2010) (quoting Golden v. Stiso, 279 A.D.2d 607, 720 N.Y.S.2d 164, 164 (2d Dep't 2001)).
According to the Complaint, on November 6, 2008, Vaughn was working as the supervisor of the third level concession stand at the theater. (Compl. 2.) As part of his work responsibilities, he went to the supply room on another floor to retrieve the supply cart. (Compl. 2.) While en route back to the third level concession stand, Vaughn sat down on a bench in front of the passenger elevator. (Compl. 2.) Cruz approached the elevator and observed Vaughn sitting down. (Compl. 3.) Cruz told Vaughn that he was "not suppose[d] to be sitting down" and that he had to stand pursuant to AMC's rules. (Compl. 3.) Vaughn refused to stand up. (Compl. 3.) Cruz reported the incident to Adam McRee, a senior manager, who typed up the disciplinary warning. (Aff. 2). Shortly after the confrontation, Cruz approached Vaughn at the concession stand and gave Vaughn a disciplinary warning. (Compl. 3.)
In the Complaint, Vaughn does not allege any spite or ill-will on the part of Cruz or McRee with regard to either of the allegedly defamatory statements. Vaughn also does not alleged that the statement was made with "a high degree of awareness of the probable falsity" of the statement or that either Cruz or McRee entertained any serious doubts as to the truth of the statements. In the context of the Complaint, both statements were substantially accurate descriptions of Vaughn's actions preceding and during the incident, made for the purpose of reporting Vaughn's admitted insubordination. Thus, both statements constitute communications by an employer's agents concerning the conduct of a fellow employee. The statements were conveyed in a reasonable manner for the proper purpose of employee discipline. Such communications are privileged and cannot form the basis for a defamation claim. Therefore, the Court GRANTS Defendant's motion to dismiss Counts 2 and 3.
Furthermore, even if the statements were not privileged, they were substantially true and cannot form the basis of a defamation claim. Under New York law, an essential element of a defamation cause of action is that the allegedly defamatory statements are false. It is well-established that "truth is an absolute, unqualified defense to a civil defamation action." Guccione v. Hustler Magazine, Inc., 800 F.2d 298, 301 (2d Cir. 1986), cert. denied, 479 U.S. 1091 (1987) (internal quotation marks and citations omitted). Even if a statement contains minor inaccuracies, "the absolute defense applies as long as the publication is `substantially true.'" Carter v. Visconti, 233 A.D.2d 473, 650 N.Y.S.2d 32 (2d Dep't 1996). A statement is substantially true if it would not "have a different effect on the mind of the reader from that which the pleaded truth would have produced." Love v. Morrow Co., 193 A.D.2d 586, 588, 597 N.Y.S.2d 424 (2d Dep't 1993). Thus, under New York law, "it is not necessary to demonstrate complete accuracy to defeat a charge of libel. It is only necessary that the gist or substance of the challenged statements be true." Printers II, Inc. v. Prof'ls Publ'g, Inc., 784 F.2d 141, 146 (2d Cir. 1986)
Here, the Complaint establishes that the allegedly defamatory statements were both substantially true. Vaughn concedes that he was sitting down while waiting for the elevator. (Compl. 2-3.) He also concedes that he was told by Cruz to stand and that he did not comply. (Compl. 3.) Vaughn disputes whether he was told to "get back to work" by Cruz or whether he was just told to stand. (Compl. 3, Ex. 1A.) Such a difference in the phrasing of the request is immaterial.
Vaughn also disputes the accuracy of the statement that "[h]e has a history of misunderstanding instructions." However, Vaughn admits that he did not follow Cruz's repeated instructions during the incident. Further, Vaughn admits that he had a history of disciplinary warnings prior to the incident for cash handling purposes. (Compl. 9.) Vaughn acknowledges that McRee wrote the statement in the report based on stories he had heard concerning Vaughn's conduct. (Aff. 2.) Regardless, neither of the allegedly defamatory statements changed the "gist or substance" of the disciplinary warning, and therefore cannot constitute the basis of a defamation claim.
2. Intentional Infliction of Emotional Distress
Vaughn's allegations of intentional infliction of emotional distress (IIED) do not rise to the level of outrageousness necessary to constitute IIED under New York law. To state a claim of IIED under New York law a plaintiff must show: "(1) extreme and outrageous conduct; (2) intent to cause, or reckless disregard of a substantial probability of causing, severe emotional distress; (3) a causal connection between the conduct and the injury; and (4) severe emotional distress" Conboy v. AT T Corp., 241 F.3d 242, 258 (2d Cir. 2001). Whether the conduct at issue is sufficiently "outrageous" is susceptible to determination as a matter of law. Howell v. New York Post Co., 81 N.Y.2d 115, 121, 612 N.E.2d 699, 702, 596 N.Y.S.2d 350, 353 (1993). This is a high standard that is "rigorous, and difficult to satisfy." Id. (quoting Prosser and Keeton, Torts § 12, at 60-61 (5th ed.)). "Liability has been found only where the conduct has been so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community." Id. (quoting Murphy v. Am. Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983)); accord Conboy, 241 F.3d at 258. "Courts are reluctant to allow recovery under the banner of intentional infliction of emotional distress absent a `deliberate and malicious campaign of harassment or intimidation.'" Cohn-Frankel v. United Synagogue of Conservative Judaism, 246 A.D.2d 332, 667 N.Y.S.2d 360, 362 (1st Dep't 1998) (quoting (Nader v. Gen. Motors Corp., 25 N.Y.2d 560, 569, 307 N.Y.S.2d 647, 255 N.E.2d 765 (1970)). As a result, "New York Courts are reluctant to allow [IIED] claims in employment discrimination cases. The courts are wary of allowing plaintiffs to recharacterize claims for wrongful or abusive discharge . . . as claims for intentional infliction of emotional distress."Stevens v. New York, 691 F. Supp. 2d 392, 399 (S.D.N.Y. 2009) (quoting Lydeatte v. Bronx Overall Econ. Dev. Corp., 00 Civ. 5433 (GBD), 2001 WL 180055, at *2 (S.D.N.Y. Feb. 22, 2001)).
Here, Vaughn has failed to allege facts sufficient to satisfy the first requirement-extreme and outrageous conduct. Vaughn believes he was unjustly criticized, disciplined, and discharged. (Compl. 12, 18; Aff. 1.) But, even if AMC had no policy against sitting down while at work and Vaughn should not have been disciplined for not following Cruz's directive, such an interaction does not amount to IIED. (Aff 1.) Even when all of the claims in the Complaint are accepted as true, none of AMC's conduct rises to the necessary level of outrageousness. Therefore, the Court GRANTS Defendant's motion to dismiss Counts 1 and 8.
3. Negligent Infliction of Emotional Distress (Counts 4, 5, and 6)
Vaughn's complaint sets out three counts of negligent infliction of emotional distress. Each is based on the failure of AMC employees to properly investigate the circumstances surrounding the disciplinary warning issued on November 6, 2008 and Vaughn's written grievance following the disciplinary warning. (Compl. 14-16). Vaughn's allegations do not state a claim upon which relief could be granted. Even if they did, such a claim would be barred in light of the exclusive remedy provision of New York's Workers' Compensation Law.
Under New York law, a claim for negligent infliction of emotional distress may be established under either (1) the "bystander theory" or (2) the "direct duty theory." Baker v. Dorfman, 239 F.3d 415, 421 (2d Cir. 2000). Both theories require physical injury or the threat of danger, either to the plaintiff himself or to a close family member. Id. A plaintiff may only recover under the "bystander" theory when he "is threatened with physical harm as a result of defendant's negligence" and "consequently suffers emotional injury from witnessing the death or serious bodily injury of a member of [his] immediate family."Mortise v. United States, 102 F.3d 693, 696 (2d Cir. 1996). To recover under the "direct duty" theory, a plaintiff must suffer "an emotional injury from defendant's breach of a duty which unreasonably endangered [his] own physical safety." Id. The Complaint alleges no facts to support either the bystander or direct duty theory of liability. There is no suggestion that Vaughn's or anyone else's well-being was ever close to being compromised as the result of AMC's alleged conduct. Thus, neither theory applies here.
New York does recognize a cause of action in cases where there is "an especial likelihood of genuine and serious mental distress, arising from . . . special circumstances, which serves as a guarantee that the claim is not spurious," such as being informed of the death of a family member or being misdiagnosed with a terminal illness. Baker, 239 F.3d at 421. Such special circumstances are not present here. Vaughn's allegations consist solely of the failure of his managers and a human resources representative to adequately investigate the circumstances surrounding his disciplinary warning and ensuing grievance. (Compl. 12, 18; Aff. 1.) Other courts have held that similar circumstances concerning the termination of employment were not sufficient "special circumstances" to constitute a claim. See Kelly v. Chase Manhattan Bank, 717 F. Supp. 227, 235 (S.D.N.Y. 1989) ("Even under the most optimal circumstances, however, termination of an employee is likely to give rise to bad feelings and anxiety. This cannot mean that every adverse employment decision may give rise to a claim of negligent infliction of emotional distress."); see also Dollman v. Mast Indus., Inc., No. 08 Civ. 10184 (WHP), 2010 WL 3239067 (S.D.N.Y. Aug. 17, 2010) ("Learning that you or your spouse was terminated by an employer-a common occurrence in this economy-is not sufficient to support a claim for negligent infliction of emotional distress.).
Even in Vaughn were able to make a cognizable claim for negligent infliction of emotion distress, such a claim for negligence against one's employer is barred by the exclusivity provision of New York's Workers' Compensation Law. N.Y. Workers' Comp. Law § 29(6) provides: "The right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee . . . when such employee is injured . . . by the negligence or wrong of another in the same employ. . . ." Thus, Vaughn's claim of negligent infliction of emotional distress, arising out of the AMC managers and a human resources representative's failure to investigate his claim, is barred by the statute. See Jean-Louis v. Am. Airlines, No. 08-CV-3898 (FB), 2010 WL 3023943, at *2-*3 (E.D.N.Y. July 30, 2010) (noting "Courts routinely dismiss workplace negligence claims, including claims based on harassment and infliction of emotional distress, in light of the exclusive remedy provision of the Workers' Compensation statute" and collecting cases); Pasqualini v. MortgageIT, Inc., 498 F. Supp. 2d 659, 666-67 (S.D.N.Y. 2007) (dismissing claims for grossly negligent hiring, supervision, retention, and infliction of emotional distress as barred by the exclusivity provision of New York Workers' Compensation Law). Vaughn's claims for negligent infliction of emotional distress are both substantively deficient and procedurally barred. Therefore, Vaughn's claims for negligent infliction of emotional distress (Counts 4, 5, and 6) must be dismissed.
4. Breach of Implied Contract (Count 7)
Vaughn also claims that AMC breached an implied contract formed through the course of his employment. Vaughn alleges that AMC "created an environment that implied outstanding performance[] will guarantee promotions[] and secured employment." (Compl. 17.) Attached to the Complaint are numerous AMC documents that detail company policies and attest to Vaughn's commendable work as an employee. (Exs. 1C, 4A-4K) Vaughn alleges that his termination without cause violated this implied contract.
"New York has a well-established at-will employment doctrine: [A]bsent an agreement establishing a fixed duration, an employment relationship is presumed to be a hiring at will, terminable at any time by either party." Albert, 239 F.3d at 264 (quoting Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 333, 506 N.E.2d 919, 920, 514 N.Y.S.2d 209, 211 (1987)) (internal quotation marks omitted). Vaughn may rebut the presumption of at-will employment by establishing "evidence that [he] was made aware of a written policy expressly limiting [the employer's] right of termination and that [he] detrimentally relied on that policy in accepting the employment." Id. (alterations in original). In order to determine whether the presumption is overcome, "the trier of facts will have to consider the totality of the circumstances, including the writings, the situation, the course of conduct of the parties and their objectives." Baron v. Port Auth., 271 F.3d 81, 87-88 (2d Cir. 2001). Although this is the general rule, "where a sufficiently unambiguous disclaimer, conspicuously placed in the employee handbook such that the employee reasonably could be expected to read it is at issue, the totality of the circumstances inquiry is unnecessary; the implied contract claim may be dismissed as a matter of law." Id. at 88. "The New York Court of Appeals has admonished that this is a difficult pleading burden, and that routinely issued employee manuals, handbooks and policy statements should not lightly be converted into binding employment agreements." Id. at 85 (internal quotation marks and citations omitted).
Vaughn does not claim that he had an employment contract for a fixed duration nor does he point to any written express limitation on AMC's right to fire him. Vaughn was indisputably an at-will employee, as confirmed by the AMC Film Crew Policies brochure, attached to his complaint as Exhibit 1C, that explicitly disavows any limitations on AMC's rights as an at-will employer. The brochure expressly states that "it is not intended to form an employment contract" and that "no AMC representative or agent has the authority to alter the employment-at-will relationship between AMC and its associates. Employment-at-will means that AMC may terminate the employment relationship at any time, with or without notice or reason." (Ex. 1C).
Vaughn argues that an implied contract was formed through a series or oral and written statements by his managers. Vaughn understood the statements to mean that outstanding performance would guarantee both continued employment and promotions. (Compl. 17.) Vaughn points to a number of oral statements of commendation and encouragement in his Affidavit in Support of Breach of Implied Contract. (Aff. 4.) However, none of the statements expressly or implicitly include any language that could be interpreted as a policy limiting AMC's rights as an at-will employer. Vaughn also does not claim that he detrimentally relied on any of the statements. Even if the statements did contain such language, "[o]ral assurances cannot of themselves give rise to a triable question of fact as to the existence of a contractual relationship." Albert, 239 F.3d at 264-65.
Vaughn cannot point to any limitation, written or oral, on AMC's right to terminate him at-will. Accordingly, Vaughn's claim of breach of implied contract (Count 7) must be dismissed.
5. Retaliation under New York Whistleblowers' Act (Count 9)
Finally, Vaughn claims retaliatory termination in violation of New York's Labor Law § 740. Labor Law § 740 states that:
An employer shall not take any retaliatory personnel action against an employee because such employee . . . (a) discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety, or which constitutes health care fraud;. . . .
The Act provides employees with a limited protection for reporting or refusing to participate in illegal activity that presents a substantial and specific danger to the public. "[T] the Act does not extend its protections to those who complain of any unlawful conduct by the employer. If the employer is breaching contracts, defrauding consumers, or violating equal opportunity laws, an employee who blows the whistle does so (insofar as the Act is concerned) at his or her own risk; the Act provides no protection." Collette v. St. Luke's Roosevelt Hosp., 132 F. Supp.2d 256, 268 (S.D.N.Y. 2001). Vaughn does not allege any facts to suggest that he was retaliated against because he disclosed or threatened to disclose "an activity, policy or practice . . . which . . . present[ed] a substantial and specific danger to the public health or safety." See Remba v. Fed'n Emp't Guidance Serv., 149 A.D.2d 131, 545 N.Y.S.2d 140, 142 (1989), aff'd, 76 N.Y.2d 801, 559 N.Y.S.2d 961, 559 N.E.2d 655 (1990). Accordingly, Defendant's motion to dismiss Plaintiff's retaliatory termination in violation of Labor Law § 740 claim is granted.
CONCLUSION
For the reasons set forth above, Defendant's motion to dismiss Plaintiff's claims is GRANTED in its entirety. The Clerk of Court is directed to close this case.
SO ORDERED:
New York, New York
September 11, 2010