The opinion of the court was delivered by: VINCENT L. BRODERICK
VINCENT L. BRODERICK, U.S.D.J.
Plaintiff Terrence L. McGrane, a former employee of defendant Reader's Digest Association, Inc. (the "Digest") brought this diversity suit seeking damages and other relief. McGrane, hired as an auditor and fraud investigator for the Digest, alleged in his complaint that he was prevented from pursuing, in ways he considered appropriate, various reports of financial wrongdoing and assertedly hazardous behavior. He alleges that he was forced to resign for attempting to pursue these issues. Based on these allegations, McGrane's complaint asserted contractual and related claims, violation of New York's "whistle blower" statute, N.Y. Labor Law § 740, and failure to pay sums allegedly due him.
The Digest moved to dismiss the complaint for failure to state a claim under Fed.R.Civ.P. 12(b). In a memorandum order dated May 27, 1993, McGrane v. Reader's Digest, 822 F. Supp. 1044 (SDNY 1993), I outlined problems with the complaint and granted permission to McGrane to supplement the complaint prior to a ruling on the motion.
Thereafter, by memorandum order dated December 13, 1993, 1993 WL 525127, 1993 U.S. Dist. LEXIS 17790 (SDNY 1993), I dismissed the complaint except for (a) claims under New York State's "whistleblower" statute, NY Labor Law 740, and (b) claims for unpaid amounts due; I directed McGrane to submit material adequate to establish a genuine issue of material fact as to the validity of those claims (see Celotex v. Catrett, 477 U.S. 317, 326, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986)). Familiarity with the May 27, 1993 and December 13, 1993 memorandum orders is assumed.
Because plaintiff has failed to submit sufficient evidence to establish a genuine issue of material fact with respect to the validity of the remaining claims, this case is dismissed in its entirety and the Clerk is directed remove this case from the active calendar of the court.
McGrane has failed to provide evidence of any specific reports made by him personally, for which he may have been penalized, concerning any substantial and specific danger to the public health or safety, see NY Labor Law 740(2) (a); Remba v. Federation Employment & Guidance Service, 76 N.Y.2d 801, 559 N.Y.S.2d 961, 559 N.E.2d 655 (1990).
While such reports in written form are not required by the statute, it is implausible
that McGrane should have retained no copies of letters or memoranda sent by him to anyone claiming that substantial specific health or safety hazards existed requiring urgent action. McGrane has produced notes of conversations which indicate that he reported various deficiencies concerning many matters affecting the Digest, but none of them pinpoints in detail any actual substantial and specific risks to health or safety. These notes are summaries kept by McGrane for his own records; what are strikingly absent are any written communications to others concerning such risks: such communications are required for a claim under New York Labor Law 740.
Failure of the Digest to pursue every matter which McGrane as auditor believed should be pursued does not constitute injury to his rights under any statute, nor under any contract which has been cited to the court.
In a whistleblower retaliation or unpaid benefit case a plaintiff may reasonably be required to submit specifics that would support the claim. Those specifics would normally be within plaintiff's own knowledge or possession; relevant information in such cases is not exclusively available to the adversary. A claimant must show the information involving risks, as defined in Labor Law 740, which was provided by the claimant and to whom it was provided; and he also must show the specifics ...