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.
With respect to her breach of contract claim, Count One of
the Complaint, plaintiff alleges that the totality of her
employment application, defendant's "Hourly Handbook" for its
East Aurora, New York plant, defendant's oral representations
of job security and what plaintiff generally refers to as ". .
. the terms and benefits . . ." of her employment, constitute
a contract between defendant and plaintiff.
Plaintiff alleges that defendant breached this contract by
discharging her. With respect to her defamation claim, Count
Two of the Complaint, plaintiff alleges that one of defendant's
assembly line forepersons stated to assembly line employees,
essentially plaintiff's co-workers, that plaintiff "stole
things" from defendant. Lastly, with respect to her intentional
infliction of emotional distress claim, Count Three of the
Complaint, plaintiff alleges that defendant ". . . forced and
coerced [her] into admitting a crime which she did not commit"
and told her that ". . . she was to be made a scape goat for
missing merchandise. . . ." Plaintiff alleges that these
actions caused her emotional distress.
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.
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
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
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.,
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 ...