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PAPPAS v. AIR FRANCE

December 6, 1986

BILL PAPPAS, Plaintiff,
v.
AIR FRANCE, Defendant



The opinion of the court was delivered by: MCLAUGHLIN

MEMORANDUM AND ORDER McLAUGHLIN, District Judge

 In this action based on diversity of citizenship, 28 U.S.C. § 1332(a), defendant moves for summary judgment. Fed. R. Civ. P. 56(b). *fn1" For the reasons discussed below, the motion is granted in part and denied in part.

 Facts

 Pursuant to an oral contract, plaintiff was hired by defendant Air France on August 29, 1966. Upon employment, Air France gave Mr. Pappas a booklet that contained the company's rules and regulations. An updated version of that booklet, entitled "You and Air France," contains "a set of Company rules" designed to ensure that all Air France employees "will know 'the rules of the game'" and that "no one will act or be dealt with in an arbitrary manner." Affidavit in Support of Motion, Exhibit 3 ("You and Air France"), at 14. The booklet lists several acts sufficient for immediate dismissal, including "stealing anything belonging to the Company." Id. Another section of the booklet establishes an "Employee Grievance Procedure" and prescribes steps that an employee may take to air his complaints to Air France's management. See id. at 16-17.

 On November 27, 1984, at the Air France terminal at John F. Kennedy International Airport, plaintiff placed a box containing an unopened champagne bottle on the top of a trash receptacle located in the men's locker room. Mr. Tardy, Air France's Passenger Service Manager, observed the box and bottle, and subsequently asked plaintiff to report to his office. During the following discussion in Mr. Tardy's office, the only persons present were plaintiff, Mr. Tardy, Mr. Kelly, Air France's Security Officer, and Mr. Demers, Air France's Passenger Supervisor, who left the meeting after a short time.

 According to the plaintiff, Mr. Tardy said, "Bill, I saw you throwing away this carton and this bottle of champagne." During his deposition, Mr. Tardy stated that he asked plaintiff why he had taken a circuitous route to the men's locker room. At plaintiff's insistence, he, Mr. Tardy, and Mr. Kelly left Mr. Tardy's office and went down the corridor to the men's locker room. Plaintiff then reenacted his placing of the box on top of the receptacle.

 Plaintiff asserts that while the parties were standing in the corridor, within earshot of other Air France employees, Mr. Tardy said, "Yes, I saw you throwing this bottle of champagne over here and you have no business. What are you, trying to steal it or something?" or "I saw you throwing this box away and it contained a bottle of champagne. Why did you throw the box away over here?" Plaintiff asserts that friends and co-workers were in the corridor at the time and heard Mr. Tardy's questions. Plaintiff also asserts that sometime during the day, in Mr. Kelly's presence, Mr. Tardy told plaintiff, "You tried to steal a bottle of champagne."

 Mr. Tardy then discharged the plaintiff from employment. Later that day, plaintiff told Mr. Tardy that he wanted to discuss the matter with someone in the personnel department. Mr. Tardy suggested that plaintiff speak with Mr. Carrara, the Personnel Services Manager. On November 28, plaintiff had a discussion with Mr. Carrara. Mr. Carrara gave plaintiff a chance to resign rather than be discharged, an option that plaintiff declined to exercise.

 Plaintiff subsequently applied for unemployment benefits. On January 3, 1985, in response to a request from the New York State Department of Labor, defendant submitted written statements concerning the circumstances leading to plaintiff's termination. *fn2"

 At a hearing conducted before a Department of Labor administrative law judge on April 8, 1986, defendant's Wage and Salary Manager, Mr. Weisser, stated his opinion that plaintiff had deposited the box in the locker room intending to go back later and retrieve the bottle of champagne. *fn3"

 Plaintiff now sues for wrongful discharge, arguing that the at-will nature of his oral employment contract was restricted by the express conditions for immediate dismissal as set forth in the booklet "You and Air France." Plaintiff asserts that he did not steal the champagne bottle, and that Air France therefore breached his employment contract by dismissing him immediately. In addition, plaintiff asserts that the grievance procedure established in the employee booklet created an implied contractual obligation on the part of Air France to provide plaintiff a pre-termination hearing. Plaintiff argues that Air France breached this obligation because it failed to provide him such a hearing.

 Plaintiff also sues for defamation, asserting that each of Mr. Tardy's statements constituted slander per se, and that the letter dated January 3, 1985 and the testimony of April 8, 1985 were also defamatory.

 Discussion

 A court must grant a motion for summary judgment if "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). When considering a summary judgment motion, "the inferences to be drawn from the underlying facts contained in [papers submitted to the court] must be viewed in the light most favorable to the ...


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