An essential element of a deprivation of liberty claim is
that the stigmatization result from the termination.
Gentile v. Wallen, 562 F.2d 193, 197 (2d Cir. 1977); Paul v.
Davis, 424 U.S. 693, 96 S.Ct. 1155, 47 L.Ed.2d 405 (1976), reh.
denied, 425 U.S. 985, 96 S.Ct. 2194, 48 L.Ed.2d 811 (1976). In
other words, it is not sufficient for a liberty claim "that
there simply be a defamation by a state official; the
defamation had to occur in the course of the termination of
employment." 424 U.S. at 710, 96 S.Ct. at 1165; see also Neu v.
Corcoran, 869 F.2d 662, 667 (2d Cir. 1989), cert. denied, ___
U.S. ___, 110 S.Ct. 66, 107 L.Ed.2d 33 (1989).
In the present case, plaintiff cannot rely on either the
Ortiz' performance evaluations or on Ortiz' memorandum to Koch
since the allegedly stigmatizing statements contained in these
documents were not published in the course of plaintiff's
termination.*fn5 Moreover, without reaching the issue of
falsity and even assuming that the "publication" requirement
has been satisfied with respect to any or all of the materials
upon which plaintiff relies, the Court finds that the
statements were not sufficiently stigmatizing to support a due
process claim. First, plaintiff has not shown that her
reputation, good name, honor or integrity has been stigmatized
by her discharge. "It is well settled that for a discharge to
create a `stigma,' `it must be something considerably graver
than a charge of failing to perform a particular job.'"
Petrozza v. Freeport, 602 F. Supp. 137, 144 (E.D.N.Y. 1984),
quoting, Russell v. Hodges, 470 F.2d 212, 217 (2d Cir. 1972).
Here, while defendants' statements may have amounted to a shade
more than simply that plaintiff could not adequately fulfill
her responsibilities, the statements nevertheless fall far
short of the type found stigmatizing by courts in this Circuit.
Cf, e.g., Brandt v. Board of Cooperative Educational Services,
Third Supervisory District, 820 F.2d 41, 43 (2d Cir. 1987) (in
action in which teacher terminated due to his alleged sexual
misconduct involving autistic students, court recognized that
"charges that the employee is guilty of dishonesty or
immorality are stigmatizing") and Saraceno v. Utica,
733 F. Supp. 538, 543 (N.D.N.Y. 1990) (allegations of
insubordination, incompetence and misconduct insufficient).
Second, plaintiff has not alleged, let alone demonstrated,
that, in the five years since she was terminated, her future
employment opportunities have been irreparably damaged by the
"publication" of the allegedly stigmatizing materials. Roth,
408 U.S. at 574, 92 S.Ct. at 2708. Accordingly, the Court finds
that there is no genuine issue of fact as to plaintiff's
assertion of a deprivation of a liberty interest.
The Court also grants defendants' motion to dismiss
plaintiff's pendent state law claims. Plaintiff asserts claims
for wrongful discharge, intentional infliction of emotional
distress and prima facie tort. However, these claims were
foreclosed by the New York Court of Appeals' holding in
Murphy v. American Home Products Corp., 58 N.Y.2d 293, 461
N YS.2d 232, 448 N.E.2d 86 (1983). In this action, the Court
declined the plaintiff's invitation to alter New York's "long
settled rule that where an employment is for an indefinite term
it is presumed to be a hiring at will which may be freely
terminated by either party at any time for any reason or even
for no reason at all." 58 N.Y.2d at 301-302, 461 N.Y.S.2d at
235. The Court, thus, refused to recognize the tort of abusive
or wrongful discharge of an at-will employee. Id.; see also
Gorrill v. Icelandair/Flugleidir, 761 F.2d 847, 851 (2d Cir.
1985); Mounayer v. Brown & Williamson Tobacco Corp., 89 Civ.
7476, 1990 WL 129484, 1990
U.S. Dist. LEXIS 6285, 5 BNA IER Cas. 892 (S.D.N.Y. May 24,
In addition, the Murphy Court also held that, in light of its
holding "that there is now no cause of action in tort in New
York for abusive or wrongful discharge of an at-will employee,
plaintiff should not be allowed to evade that conclusion or to
subvert the traditional at-will contract rule by casting his
cause of action in terms of a tort of intentional infliction of
emotional distress." Murphy, 58 N.Y.2d at 303, 461 N.Y.S.2d at
236. The Court then reached the same conclusion with respect to
a claim of prima facie tort. 58 N.Y.2d at 304, 461 N.Y.S.2d at
237. See also Mounayer, at p. 11; D'Avino v. Trachtenburg,
149 A.D.2d 401, 539 N.Y.S.2d 755, 757 (2d Dep't), app. denied, 74
N Y2d 611, 546 N.Y.S.2d 556, 545 N.E.2d 870 (1989).
Moreover, even assuming that plaintiff's intentional
infliction of emotional distress and prima facie tort claims
are not foreclosed by Murphy, plaintiff has failed to satisfy
the elements of these claims. For instance, the tort of
intentional infliction of emotional distress "predicates
liability on the basis of extreme and outrageous conduct, which
so transcends the bounds of decency as to be regarded as
atrocious and intolerable in a civilized society." Freihofer v.
Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 741,
480 N.E.2d 349 (1985), citing, Fischer v. Maloney, 43 N.Y.2d 553,
557, 402 N.Y.S.2d 991, 993, 373 N.E.2d 1215, 1217 (1978). Under
the facts as alleged by plaintiff, defendants' conduct falls
far short of meeting the above standard.
Prima facie tort permits recovery for the intentional
infliction of harm, without any excuse or justification, by an
act or series of acts which would otherwise be lawful.
Freihofer, 65 N.Y.2d at 142-43, 490 N.Y.S.2d at 741, 480 N.E.2d
at 355; Backus v. Planned Parenthood of Finger Lakes,
161 A.D.2d 1116, 555 N.Y.S.2d 494, 495 (4th Dep't 1990); Dalton v.
Union Bank of Switzerland, 134 A.D.2d 174, 520 N.Y.S.2d 764,
767 (1st Dep't 1987). In addition, "[a] critical element of the
cause of action is that plaintiff suffered specific and
measurable loss, which requires an allegation of special
damages." Freihofer, 65 N.Y.2d at 143, 490 N.Y.S.2d at 741, 480
N.E.2d at 355. In the present action, even assuming that
defendants' sole motivation in terminating plaintiff was
"disinterested malevolence," Backus, 555 N.Y.S.2d at 495, Dr.
Piesco's prima facie tort claim must be dismissed since "no
special damages are alleged and apparently none exist."
Freihofer, 65 N.Y.2d at 143, 490 N.Y.S.2d at 741, 480 N.E.2d at
355; see also Loudon v. Hayek, 89 Civ. 1726, 1989 U.S. Dist.
LEXIS 11263 (S.D.N.Y. Sept. 22, 1989); Dalton, 520 N.Y.S.2d
at 767; Alexander & Alexander, Inc. v. Fritzen, 114 A.D.2d 814,
495 N.Y.S.2d 386, 389 (1st Dep't 1985).
For the reasons expressed above, defendants' motion for
summary judgment is granted in its entirety. Accordingly, each
and every cause of action is dismissed as against each