The opinion of the court was delivered by: MALETZ
Plaintiffs John Leahy and Benjamin Mollica commenced this action in the Supreme Court of the State of New York, County of Queens, and defendant Federal Express Corporation (Federal) petitioned for removal seasonably. At the conclusion of plaintiffs' case, Federal has moved for a directed verdict in its favor on all of plaintiffs' claims.
The action arises from Federal's termination of its employment of Leahy and Mollica as couriers after a security investigation raised suspicions as to their implication in the theft of an expensive wristwatch entrusted to Federal for overnight delivery. Initially, plaintiffs advanced eight claims, but Chief Judge Weinstein dismissed before trial a claim alleging a violation of New York Labor Law § 734(1) and plaintiffs have now withdrawn their claim of tortious and abusive discharge and Mollica's claim of libel. There remain the following claims:
(1) breach of an alleged employment contract;
(4) intentional infliction of emotional distress; and
(5) negligent infliction of emotional distress.
In considering Federal's motion for a directed verdict, Fed. R. Civ. P. 50(a), the court must view the evidence in the light most favorable to plaintiffs and must give them the benefit of all inferences fairly supported by the evidence. See, e.g., Continental Ore Co. v. Union Carbide & Carbon Corp., 370 U.S. 690, 696, 8 L. Ed. 2d 777, 82 S. Ct. 1404 (1962); Feldman v. Simkins Industries, Inc., 679 F.2d 1299, 1303 (9th Cir. 1982); Fortunato v. Ford Motor Co., 464 F.2d 962, 965 (2d Cir.), cert. denied, 409 U.S. 1038, 34 L. Ed. 2d 487, 93 S. Ct. 517 (1972). If the court determines "'that reasonable men could not arrive at a contrary verdict,'" Cora Pub, Inc. v. Continental Casualty Co., 619 F.2d 482, 484 (5th Cir. 1980) (quoting Boeing Co. v. Shipman, 411 F.2d 365, 374 (5th Cir. 1969)), then a directed verdict is appropriate. Against this background, the court treats plaintiffs' claims seriatim.
I. Breach of Employment Contract
Plaintiffs claim that Federal breached an employment contract under the theory enunciated in Weiner v. McGraw -Hill, Inc., 57 N.Y.2d 458, 443 N.E.2d 441, 457 N.Y.S.2d 193 (1982). In Weiner, the New York Court of Appeals held for the first time that a plaintiff had pleaded a good cause of action for breach of contract even though he had not been hired for a specific term of employment. The court held it possible for an employer to bind itself by promises in a handbook that employees would not be dismissed without "just and sufficient cause" or rehabilitative efforts, assuming; that the employee relied on these promises when he accepted employment. Weiner listed the allegations that, taken together, evinced a contract and a breach:
First, plaintiff was induced to leave Prentice-Hall with the assurance that McGraw-Hill would not discharge him without cause. Second, this assurance was incorporated into the employment application. Third, plaintiff rejected other offers of employment in reliance on the assurance. Fourth, appellant alleged that, on several occasions when he had recommended that certain of his subordinates be dismissed, he was instructed by his supervisors to proceed in strict compliance with the handbook and policy manuals because employees could be discharged only for just cause. He also claims that he ...