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SALANGER v. U.S. AIR

January 7, 1983

Dorlesca SALANGER, Plaintiff,
v.
U.S. AIR, Defendant



The opinion of the court was delivered by: MINER

MEMORANDUM-DECISION and ORDER

 MINER, District Judge.

 I

 This action arises out of the allegedly wrongful discharge of plaintiff from her position of employment with defendant. Jurisdiction in this Court is invoked pursuant to the provisions of 28 U.S.C. § 1332, and the amount in controversy is alleged to exceed the sum of $10,000, exclusive of interest and costs. Before the Court is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56(b) *fn1" dismissing the complaint.

 II

 In early 1967, plaintiff enlisted the aid of an employment agency to secure a position with Mohawk Airlines, defendant's predecessor in interest. Upon completion of an unsalaried training period, plaintiff was placed on Mohawk's payroll on April 29, 1967 and began her probationary period of employment. During this initial period, plaintiff worked in Syracuse, New York as an "Airline Reservationist." In 1972, Mohawk Airlines merged with Allegheny Airlines, and plaintiff continued in her position as an Airline Reservationist. Plaintiff then applied for, and in 1978 was granted, a transfer to Allegheny's facility at Hancock Airport. After the transfer, she assumed the position of "Customer Service Agent." Plaintiff continued in this position after defendant acquired Allegheny Airlines.

 Sometime in 1980, defendant, through its Security Department and Customer Service Department, conducted an investigation of plaintiff's possible involvement in an alleged misappropriation of company funds. Plaintiff was suspended from her position during the pendency of this investigation. Eventually, based upon the findings of the investigation, a criminal complaint was filed charging plaintiff with the crime of grand larceny in the third degree, *fn2" and a warrant for plaintiff's arrest was issued by a Town of DeWitt justice. Pursuant to this warrant, plaintiff was arrested on September 10, 1980 and arraigned in the Town of DeWitt Justice Court. Thereafter, on September 24, 1980, plaintiff received a letter from defendant, dated September 19, 1980, notifying her that defendant's investigation had been completed and that her period of employment with defendant was terminated.

 In accordance with the Personnel Policy Guide *fn3" issued by defendant, plaintiff exhausted the three grievance steps available to her. However, at the termination of the grievance proceedings, defendant adhered to its original determination to discharge plaintiff.

 Finally, on March 10, 1981, a grand jury in Onondaga County dismissed the charge of grand larceny in the third degree against plaintiff pursuant to New York Criminal Procedure Law § 190.75. *fn4" Plaintiff then applied to defendant for reinstatement, but was again refused her former position, or any other position.

 In her complaint, plaintiff alleges that, "the actions of the defendant, in discharging this plaintiff and causing her arrest, were not in good faith and constituted the prima facie tort of wrongful discharge." (Complaint para. 6). Moreover, plaintiff contends, "that, following the dismissal of said criminal charge against the plaintiff, she applied to the defendant for reinstatement of her employment with this defendant and her application therefor was summarily rejected, in violation of § 296, subdivision 16, of the Executive Law of the State of New York, which defines such action of the defendant as an unlawful discriminatory practice and in violation of § 160.60 of the Criminal Procedure Law of the State of New York." (Id., P 9).

 III

 Summary judgment is a drastic remedy which should be granted only when it is clear that the requirements of Fed.R.Civ.P. 56 have been satisfied. United States v. Bosurgi, 530 F.2d 1105, 1110 (2d Cir.1976). Moreover, "summary judgment is to be used not as a substitute for trial, but only when ' . . . it is quite clear what the truth is [and] that no genuine issue remains for trial.' Sartor v. Arkansas Natural Gas Corp., 321 U.S. 620, 627, 64 S. Ct. 724, 728, 88 L. Ed. 967 (1944)." Pfizer, Inc. v. International Rectifier Corp., 538 F.2d 180, 184-185 (8th Cir.1976), cert. denied, 429 U.S. 1040, 97 S. Ct. 738, 50 L. Ed. 2d 751 (1977). Indeed, the reviewing court must accept as true the factual statements in the opposing party's affidavits, draw all permissible inferences in that party's favor, Quinn v. Syracuse Model Neighborhood Corp., 613 F.2d 438 (2d Cir.1980), and resolve any doubts in favor of the latter, American Mfrs. Mutual Ins. Co. v. American Broadcasting-Paramount Theatres, Inc., 388 F.2d 272 (2d Cir.1967). In short, the movant has the dual burden of demonstrating that no genuine issue of material fact exists and that he is entitled to judgment as a matter of law. Adickes v. S.H. Kress & Co., 398 U.S. 144, 90 S. Ct. 1598, 26 L. Ed. 2d 142 (1970). Here, defendant has only partially met this heavy burden.

 IV

 To date, the tort of "abusive discharge" or "wrongful discharge" has not become a part either of New York's common law or its statutory law. Murphy v. American Home Products Corp., 88 A.D.2d 870, 451 N.Y.S.2d 770, 771 (1st Dep't 1982), modifying 112 Misc.2d 507, 447 N.Y.S.2d 218 (Sup.Ct.N.Y.Co.1982). However, some lower courts in New York have indicated their willingness to recognize the tort of abusive discharge if presented with appropriate circumstances. See, e.g., Fletcher v. Greiner, 106 Misc.2d 564, 435 N.Y.S.2d 1005 (Sup.Ct. Nassau Co.1980); Chin v. American Telephone & Telegraph Co., 96 Misc.2d 1070, 410 N.Y.S.2d 737, (Sup.Ct.N.Y.Co.) ...


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