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April 29, 1991


The opinion of the court was delivered by: Skretny, District Judge.



Now before this Court is defendant's motion for summary judgment pursuant to Fed.R.Civ.P. 56.

Dolores Sabatowski ("plaintiff") sues defendant Fisher-Price Toys ("defendant") for damages stemming from defendant's alleged breach of an employment contract, defamation and intentional infliction of emotional distress.

This Court has diversity jurisdiction pursuant to 28 U.S.C. § 1332 and, therefore, New York law supplies the substantive rule of decision in this case.

This lawsuit stems from a rather unfortunate workplace incident which occurred October 24, 1988. Plaintiff, an assembly line employee of defendant for more than fifteen (15) years, during a work break removed two toy Smooshies, worth about one dollar each, from the assembly line and placed them in a paper bag. Plaintiff insists that she never intended to steal the Smooshies but only intended to place them on another assembly line as a joke. Shortly after placing the Smooshies in the bag, however, three of defendant's supervisory personnel confronted plaintiff about the Smooshies. Plaintiff did not deny taking the Smooshies and, according to her own deposition testimony, offered the supervisory personnel no explanation for placing them in the bag. As a result of the incident, two days later, defendant discharged plaintiff.

Defendant moves for summary judgment on all three claims, arguing that no employment contract existed between defendant and plaintiff limiting defendant's right to discharge plaintiff at will, and that plaintiff has failed to raise any material factual issues with respect to defamation or intentional infliction of emotional distress. Defendant also moves for sanctions against plaintiff's counsel pursuant to Fed.R.Civ.P. 11.

In support of its motion, defendant submits its Notice of Motion with exhibits, a Statement Of Undisputed Facts ("d. fact"), a legal memorandum ("d. memo.") and Neil Goldberg, Esq.'s Affidavit In Response To Plaintiff's Memorandum of Law ("Response Affidavit"). Defendant's counsel also submits an affidavit opposing plaintiff's Response To Defendant's Statement of Undisputed Facts and an affidavit in reply to plaintiff's affidavits.

In opposition to defendant's motion, plaintiff submits its Notice of Cross-Motion*fn1 with exhibits, including the affidavit of plaintiff ("Sabatowski"), the affidavit of plaintiff's husband John Sabatowski ("John Sabatowski") and affidavits of plaintiff's counsel. Plaintiff also submits a legal memorandum ("p. memo.") and a Response To Statement Of Undisputed Facts ("p. fact").

Additionally, both parties have submitted portions of plaintiff's deposition testimony ("dep.").

This Court has considered all these submissions and oral argument held on January 7, 1991.

Conclusion: For the reasons set forth below, this Court grants defendant's motion for summary judgment in its entirety and dismisses plaintiff's lawsuit. This Court further summarily denies defendant's motion pursuant to Fed.R.Civ.P. 11.


The following material facts are not in dispute.

On August 1, 1973, plaintiff commenced employment with defendant as an assembly line worker paid on an hourly basis. At the time plaintiff commenced her employment with defendant, plaintiff did not enter into a written contract with defendant concerning her employment. (dep., p. 7; d. memo., p. 2).

Immediately prior to commencing employment with defendant, plaintiff was not employed outside the home. According to her deposition testimony, plaintiff applied for employment with defendant to ". . . be among people" and for ". . . the extra money." (dep., p. 7).

Plaintiff's employment application with defendant, which plaintiff submits to this Court, is dated August 23, 1972. Plaintiff's employment application establishes that plaintiff's last employer before defendant was Harvest Markets, Inc. of Buffalo and plaintiff's employment with Harvest Markets terminated on July 1, 1972, before plaintiff sought employment with defendant.*fn2

On October 24, 1988, during a work break plaintiff took two Smooshies off defendant's assembly line and placed them in a paper bag. (p. memo., p. 1; d. fact, ¶ 6). Plaintiff did not work on the Smooshie assembly line. (dep., p. 19). According to plaintiff, she ". . . had taken `Smooshies'" from one assembly line ". . . to playfully place them on" another assembly line where she worked, the "Corn Popper" line. (Sabatowski, ¶ 19; dep., pp. 19-21).

Plaintiff concedes that to take company products off their assembly line was against defendant's company policy and not part of her job. (dep., pp. 17-18). Plaintiff also concedes that no supervisor instructed her to remove Smooshies from the assembly line and to place them on the Corn Popper line. (dep., p. 21).

Later on October 24, 1988, immediately after her work break, while still holding the paper bag containing two Smooshies, plaintiff was told to go to the office of Sarah Craig ("Craig"), defendant's employee relations administrator. (dep., pp 31-34). At this meeting (the "October 24, 1988 meeting") were Craig, Raymond Buncy, defendant's plant manager, and Mort Benstead, defendant's security supervisor. (dep., pp. 36-37; d. memo, p. 3). Craig and Buncy questioned plaintiff with respect to whether she had taken Smooshies. At the October 24, 1988 meeting plaintiff admitted that she had taken the Smooshies and placed them in the paper bag but offered no explanation as to why she had done so. (dep., p. 39).

On October 26, 1988, defendant discharged plaintiff as a result of the Smooshie incident.


Federal Rule of Civil Procedure 56(c) provides that summary judgment is appropriate where ". . . 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." The burden is upon the moving party to demonstrate the absence of a material factual dispute. Fed.R.Civ.P. 56(e). Once that burden is met, the non-moving party ". . . must set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). This Court must draw all reasonable inferences in favor of the non-moving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 158-59, 90 S.Ct. 1598, 1608-09, 26 L.Ed.2d 142 (1970). Moreover, courts should not be reluctant to grant summary judgment in appropriate cases since "[o]ne of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims," Celotex Corp. v. Cateret, 477 U.S. 317, 323-24, 106 S.Ct. 2548, 2553, 91 L.Ed.2d 265 (1986), thereby permitting courts to avoid ". . . protracted, expensive and harassing trials." Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985).

Applying this standard to the present motion, this Court finds that there exists no genuine issue of material fact for trial on any of plaintiff's claims.


Breach Of Employment Contract (Count One)

In Count One of the Complaint, plaintiff alleges that defendant "wrongfully discharged" plaintiff so as to constitute breach of an employment ...

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