Herlihy v. Metropolitan Museum of Art

Citations: 214 A.D.2d 250; 633 N.Y.S.2d 106; 1995 N.Y. App. Div. LEXIS 10035; 68 Empl. Prac. Dec. (CCH) 44,163

Court: Appellate Division of the Supreme Court of the State of New York; October 10, 1995; New York; State Appellate Court

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The appeal addresses whether statements made by workers to their employer regarding alleged anti-Semitic remarks by a supervisor are privileged and thus not actionable. Plaintiff Cecile Herlihy, employed by the Metropolitan Museum of Art for over 20 years as a supervisor of volunteers, faced accusations from three volunteers—Judith Strone, Sandra Ortner, and Ruth Zalinka—who reported that Herlihy made disparaging comments about Jews in July and August 1991. After denying these allegations and claiming retaliation for her supervisory actions, Herlihy was suspended and subsequently terminated. She filed a lawsuit with multiple claims, including slander and age discrimination. The defendants moved to dismiss the claims, arguing that Herlihy's actions constituted unlawful retaliation for their complaints about discrimination. The IAS Court treated their motion as one for summary judgment, granting the Museum’s request to dismiss the emotional distress claim while denying the volunteers' motion entirely. The appellate court upheld the IAS Court’s decision, finding no abuse of discretion in treating the motion as a summary judgment due to the comprehensive evidence presented by both parties.

Defendants contend that they are immune from slander and slander per se claims due to privileges conferred by antidiscrimination statutes at various levels, arguing their statements are protected by absolute and qualified privilege. A key issue is balancing the public interest in a discrimination-free workplace against an individual's right to reputation. Courts have historically protected certain communications from litigation to prevent stifling reporting of potentially defamatory statements. Numerous antidiscrimination laws encourage reporting while obligating employers to investigate complaints, making retaliation against complainants illegal.

In *Matter of Mohawk Finishing Prods. v State Div. of Human Rights*, the Court of Appeals rejected the idea of absolute immunity for unfounded discrimination complaints, affirming that a complainant must reasonably believe discrimination occurred. Although the court did not adopt specific standards, subsequent rulings favored a "reasonable belief standard" due to the remedial intent of the Human Rights Law. Defendants largely cite cases that hinge on quasi-judicial proceedings, which are absent in this case. In *Proulx v Citibank*, despite acknowledging malicious complaints, the court maintained that such complaints do not bar defamation claims against employers, asserting that employers can seek defamation remedies after defending against unfounded claims.

An employer cannot use retributive discharge as a defense against defamation claims related to discriminatory charges, as clarified by Title VII and case law. The National Labor Relations Act does not prevent state defamation claims, emphasizing that malicious libel lacks constitutional protection. Statutory provisions against retaliation do not grant immunity to complainants making false claims. Defendants’ assertion of absolute common-law privilege in defamation suits is rejected, as public policy allows some defamatory communications to be exempt from liability only under specific circumstances. Absolute privilege, rooted in historical legal doctrines, protects communications made by individuals in official capacities, such as judicial or legislative functions. However, the court found that defendants did not possess absolute privilege since their statements were not made in an official context. They also claimed qualified privilege, which under New York law offers limited protection for good-faith communications made by parties with a vested interest, but does not exempt them from defamation liability.

Qualified privilege is broadly applicable, extending beyond the limitations of absolute privilege, as illustrated by various case law examples involving common interests among employees, faculty committees, healthcare plan physicians, tenant associations, and educational board employees. The rationale behind this privilege is to facilitate the exchange of information among parties with a shared interest, provided it is not abused. While the individual defendants in this case were found to have qualified privilege, such privilege can be negated if statements are made with malice or knowledge of their falsity. To establish malice, the plaintiff must show that the communication aimed to injure the individual, which can be inferred from the nature of the statements or the context in which they were made. The plaintiff is accused of making disparaging anti-Semitic remarks, and if these allegations are proven false, they could be seen as made with the intent to harm her, presenting a factual dispute that prevents summary judgment. Additionally, since the slander is not considered defamatory per se, the plaintiff must demonstrate special damages, which she has done by citing financial losses from her job.

Defendants' motion to dismiss the defamation claims based on the failure to identify specific individuals to whom defamatory remarks were made is rejected. The court finds the complaint sufficient as it provides adequate notice regarding the context of the allegations. Specifically, the plaintiff claims that defamatory statements were made on July 31, 1991, to Museum personnel Barbara Dougherty, Saldok, and Cantrell, with a clear time frame of July and August 1991. The complaint, supported by affidavits, effectively describes the circumstances surrounding the statements.

Additionally, the court dismisses the defendants' argument for dismissing claims against Strone, who denies making the statements, noting that such denials create factual questions for a jury, especially in light of testimony from Museum Officer Cantrell suggesting Strone did make the accusations. The plaintiff has established a valid claim for slander per se, as the statements imply anti-Semitism, which adversely affects her professional role, given her interactions with the Museum's diverse public and Jewish volunteers.

Defendants’ assertion that the tort claims are merely a disguise for wrongful discharge claims is unconvincing, as the claims are grounded in established New York law. The court upholds the plaintiff's claim for tortious interference with prospective business relations, noting potential intentional and unjustified interference with her employment at the Museum. However, the claim for intentional infliction of emotional distress against individual defendants is dismissed.

To establish a claim for intentional infliction of emotional distress, the plaintiff must demonstrate that the defendant engaged in extreme and outrageous conduct, which either intentionally or recklessly caused severe emotional distress. Such conduct must surpass all decency standards and be deemed atrocious in a civilized society. Courts have found that while deplorable language, including racial and ethnic slurs, can indicate narrow-mindedness, it does not typically meet the threshold for this type of emotional distress claim unless accompanied by a deliberate and malicious campaign of harassment. The use of ethnic slurs, while reprehensible, does not constitute the required egregiousness for recovery in this context. Furthermore, the plaintiff's claim for intentional infliction of emotional distress overlaps with other traditional tort claims, specifically defamation, indicating it should be addressed under those established legal frameworks. Consequently, the Supreme Court's order denying the defendants’ motion to dismiss the intentional infliction of emotional distress claim has been modified to dismiss that specific cause of action, while other claims remain affirmed. The court also rejected the defendants’ argument regarding the plaintiff's omission of this claim in the amended complaint, finding no bad faith or prejudice to the defendants from allowing the claim to be re-added.