for insubordination regarding the March 8 and 11 prescriptions.
B. Procedural History
Plaintiff filed this lawsuit in New York State Supreme Court, Saratoga County on October 4, 1996. On November 8, 1996, defendant removed the action to this Court. Plaintiff's Second Amended Complaint ("Complaint") contains only one claim: wrongful discharge. Defendant now moves for summary judgment and plaintiff cross-moves for the same relief.
A. Defendant's Motion for Summary Judgment
1. Standard for Summary Judgment
Under Fed. R. Civ. P. 56(c), if there is "no genuine issue as to any material fact . . . the moving party is entitled to a judgment as a matter of law . . . where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party." Matsushita Electrical Industrial Co. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The burden to demonstrate that no genuine issue of material fact exists falls solely on the moving party, Heyman v. Commerce and Industry Insurance Co., 524 F.2d 1317 (2d Cir. 1975), and the trial court must resolve all ambiguities and draw all inferences in favor of that party against whom summary judgment is sought. Ramseur v. Chase Manhattan Bank, 865 F.2d 460, 465 (2d Cir.1989); Eastway Construction Corp. v. City of New York, 762 F.2d 243, 249 (2d Cir. 1985), cert. denied, 484 U.S. 918, 98 L. Ed. 2d 226, 108 S. Ct. 269 (1987).
Once the moving party has met its burden, the non-moving party must come forward with specific facts showing that there is a genuine issue for trial. Matsushita, 475 U.S. at 585-86. A dispute regarding a material fact is genuine "if evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). When reasonable minds could not differ as to the import of the evidence, then summary judgment is proper. Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991), cert. denied, 502 U.S. 849, 116 L. Ed. 2d 117, 112 S. Ct. 152 (1991). The motion will not be defeated by a non-movant who raises merely a "metaphysical doubt" concerning the facts or who only offers conjecture or surmise. Delaware & H.R. Co. v. Conrail, 902 F.2d 174, 178 (2d Cir.1990), cert. denied, 500 U.S. 928, 111 S. Ct. 2041, 114 L. Ed. 2d 125 (1991)(quoting Matsushita, 475 U.S. at 586).
It is with these considerations in mind that the Court addresses defendant's motion for summary judgment.
2. At-Will Employment Under New York Law
The parties agree that New York law applies. The general rule in New York is that employment is "at will," meaning the employment relationship is terminable at any time by either party. Wright v. Cayan, 817 F.2d 999, 1002 (2d Cir.), cert. denied, 484 U.S. 853, 98 L. Ed. 2d 112, 108 S. Ct. 157 (1987); Sabetay v. Sterling Drug, Inc., 69 N.Y.2d 329, 514 N.Y.S.2d 209, 211, 506 N.E.2d 919 (1987); Murphy v. American Home Products, 58 N.Y.2d 293, 461 N.Y.S.2d 232, 237, 448 N.E.2d 86 (1983). This rule, however, is only a rebuttable presumption, Weiner v. McGraw Hill, Inc., 57 N.Y.2d 458, 457 N.Y.S.2d 193, 198, 443 N.E.2d 441 (1982), and can be "trumped" in two ways. First, "'if the employer made a promise, either express or implied . . . that the employment should continue for a period of time that is either definite or capable of being determined, that employment is not terminable by him at will.'" Weiner, 457 N.Y.S.2d at 197 (quoting 1A Corbin, Contracts, § 152 at 14). Second, even if the employment contract is of an indefinite duration, courts will give effect to an express limitation on the employer's right to discharge. Murphy, 461 N.Y.S.2d at 237.
Plaintiff appears to have abandoned both of these theories. He concedes that his employment was at-will, and presents no evidence that his employment was for a specific term, or that he had any express agreement limiting defendant's right to discharge him. Nonetheless, relying on Wieder v. Skala, 80 N.Y.2d 628, 593 N.Y.S.2d 752, 609 N.E.2d 105 (1992), plaintiff argues that because refusing to fill Prendergast's prescriptions would violate the legal and ethical rules governing the pharmacy profession, his termination for disobeying Sims' directive constitutes a breach of an implied obligation and thus should be actionable.
In Wieder, the plaintiff was an attorney who, while employed by a law firm, came to learn of the professional misconduct of an associate, L.L., including neglect, false statements, and what L.L. himself termed "'several acts of legal malpractice and fraud and deceit upon plaintiff and several other clients of the firm.'" 593 N.Y.S.2d at 753. After insisting to the firm that L.L.'s misconduct be reported to the Appellate Division Disciplinary Committee as required by DR 1-103(A)
, the plaintiff ultimately was fired. He sued, claiming, inter alia, (1) that his discharge constituted a breach of the employment relationship; and (2) that his discharge violated public policy.
The Court of Appeals reversed the Appellate Division's dismissal of the first claim. In doing so, the court first examined its prior cases dealing with implied obligations in employment relationships. In Murphy v. American Home Prods. Corp., for example, the plaintiff had been discharged in bad faith in retaliation for his disclosure of accounting improprieties. The court there "rejected the argument that plaintiff's discharge . . . violated a legally implied obligation in the employment contract requiring the employer to deal fairly and in good faith with the employee[.]" Wieder, 593 N.Y.S.2d at 754. Though such legally implied obligations are recognized where they "are in furtherance of other terms of the agreement of the parties," it would be "incongruous" to imply such an obligation in the at-will employment context, since it would be destructive of the employer's otherwise unfettered right of termination. Murphy, 461 N.Y.S.2d at 237. In Sabetay v. Sterling Drug, Inc., the court reaffirmed Murphy 's rejection of the implied obligation of good faith exception, holding that an employer who allegedly fired an employee for "whistle-blowing" and refusing to engage in unethical activities had no implied obligation to deal in good faith where such an obligation would be inconsistent with other mutually agreed upon terms in the contract. Sabetay, 514 N.Y.S.2d at 212.
Acknowledging these holdings in Wieder, the Court of Appeals went on to distinguish the case before it. First, the court noted that in both Murphy and Sabetay, the plaintiffs worked in the financial departments of large companies. Wieder, 593 N.Y.S.2d at 755. Thus, their accounting duties and responsibilities were in furtherance of their primary duties as corporate managers. Id. The rendering of professional services by an attorney, however, is "at the core" of his association with a firm. Id. Moreover, while attorneys may be employees, "they remain independent officers of the court responsible in a broader public sense for their professional obligations." Id. In light of these distinctions, the court expressly found an implied obligation unique to employment relationships among attorneys:
We agree with the plaintiff than in any hiring of an attorney as an associate to practice law with a firm there is implied an understanding so fundamental to the relationship and essential to its purpose as to require no expression: that both the associate and the firm in conducting the practice will do so in accordance with the ethical standards of the profession. Erecting or countenancing disincentives to compliance with the applicable rules of professional conduct . . . would subvert the central professional purpose of his relationship with the firm -- the lawful and ethical practice of law.
Id. The court also emphasized the critical importance of the particular disciplinary rule in question -- DR 1-103 -- to the self-regulation of the practice of law itself, indicating that "'the reporting requirement is nothing less than essential to the survival of the profession.'" Wieder, 593 N.Y.S.2d at 756 (quoting Gentile, Professional Responsibility -- Reporting Misconduct by Other Lawyers, N.Y.L.J., Oct. 23, 1984, at 1, col. 1; at 2, col. 2.).
Ultimately, however, the court found that failing to recognize an implied obligation in Wieder would present the kind of incongruity in the contractual relationship that Murphy and Sabetay sought to avoid. Because the only objective of the relationship between the plaintiff and the law firm was to practice law, and because inherent in this relationship was the "essential compact" that both parties would do so in compliance with the governing ethical rules,
insisting that . . . plaintiff must act unethically and in violation of one of the primary professional rules amounted to nothing less than a frustration of the only legitimate purpose of the employment relationship.
Wieder, 593 N.Y.S.2d at 757. Thus, the unique posture of the parties to the employment relationship in Wieder distinguished it from both Murphy and Sabetay. Id.
Finally, though the court found that plaintiff stated a breach of contract claim, it rejected his claim that his discharge violated public policy (a claim sounding in tort), finding that "significant alteration of employment relationships, such as the plaintiff urges, is best left to the legislature.'" Id. (quoting Sabetay, 514 N.Y.S.2d at 213.
From this discussion of Wieder, it is clear that plaintiff's reliance on the case is misplaced. Though much of Wieder 's rationale theoretically applies to any employment relationship involving licensed professionals, the court took great pains to confine the implied obligation to the particular facts presented. The court noted, for example, that the implied obligation arose in the " distinctive relationship between a law firm and a lawyer hired as an associate." 593 N.Y.S.2d at 755 (emphasis added). The court went on to note that the disciplinary rule at issue
was "critical to the unique function of self-regulation belonging to the legal profession," id. (emphasis added), and that the " unique characteristics of the legal profession in respect to this core Disciplinary Rule make the relationship of an associate to a law firm employer intrinsically different. . .". Id. at 756 (emphasis added). Indeed, as one commentator has noted, the Wieder opinion "is so replete with language of limitation and qualification that it suggests the Court intended its holding to encompass only law firm associates who find themselves in Wieder's precise circumstances." Sandra J. Mullings, Wieder V. Skala: A Chink in the Armor of the At-will Doctrine or a Lance for Law Firm Associates?, 45 SYRACUSE L. REV. 963, 964 (1995); see also Wolde-Meskel v. Tremont Commonwealth Council, 1994 WL 167977 at *3 (S.D.N.Y.) (noting that Wieder was "carefully limited to the particular circumstances of legal employment"); McGrane v. Reader's Digest Ass'n, 822 F. Supp. 1044, 1049 (S.D.N.Y. 1993) (noting that Wieder "goes to substantial lengths to confine its reach primarily and possibly exclusively to cases involving legal ethics.").
This conclusion further is supported by the reluctance of New York courts in subsequent decisions to broaden Wieder's scope. In Mulder v. Donaldson, Lufkin & Jenrette, 208 A.D.2d 301, 623 N.Y.S.2d 560 (1st Dep't 1995), for example, the First Department explicitly rejected an interpretation of Wieder by a lower court that would extend the implied obligation exception to "any licensed business or profession whose continued practice is subject to compliance with laws or regulations governing the conduct of such business or profession." 623 N.Y.S.2d at 563 (internal quotations omitted). In that case, the plaintiff was a brokerage house auditor who sue his employer, a brokerage house, after he was fired for reporting a money-laundering scheme at one of the employer's offices in Florida. Id. at 561-62. The court held that the plaintiff's situation was more akin to the facts presented in Murphy and Sabetay, the very same fact situations the Wieder court found distinguishable. Id. at 563.
Moreover, this Court is aware of no reported decision allowing a breach of employment contract claim to survive under the Wieder rationale in the context of any profession, legal or otherwise. On the contrary: such claims overwhelmingly have been rejected by New York's courts. See, e.g., Leibowitz v. Party Experience, Inc., 233 A.D.2d 481, 650 N.Y.S.2d 286, 287 (2d Dep't 1996); DeFilippo v. Xerox Corp., 223 A.D.2d 846, 636 N.Y.S.2d 463, 465 (3d Dep't), leave to appeal dismissed, 87 N.Y.2d 1056, 644 N.Y.S.2d 147, 666 N.E.2d 1061 (1996); Haviland v. J. Aron & Co., 212 A.D.2d 439, 622 N.Y.S.2d 703, 704 (1st Dep't), leave to appeal denied, 629 N.Y.S.2d 724 (1995); Kelleher v. Corinthian Media, Inc., 208 A.D.2d 477, 617 N.Y.S.2d 726, 727 (1st Dep't 1994); accord Luck v. Mazzone, 52 F.3d 475, 477 (2d Cir. 1995); Fry v. McCall, 945 F. Supp. 655, 667 (S.D.N.Y. 1996).
For these reasons, the Court finds Wieder inapplicable. Because plaintiff was an at-will employee, he could be fired for any reason or no reason at all. See Tramontozzi v. St. Francis College, 232 A.D.2d 629, 649 N.Y.S.2d 43, 44 (2d Dep't 1996). Thus, summary judgment must be granted.
Even if the Court were to venture into uncharted territory and hold that plaintiff stated a claim for breach of contract under Wieder, he has presented no evidence that would raise a genuine issue of material fact as to such a claim. First, plaintiff can point to no ethical or legal rule or policy that he would have violated by obeying Sims' order. None of the statement's in defendant's own internal policy upon which plaintiff relies, such as those requiring that Wal-Mart pharmacists are to "maintain high ethical standards" and "perform the legal and moral responsibility to the profession and to the general public" render Sims' mandate improper. And even if they did, plaintiff would raise no issue of fact: an employer's discharge of an employee in violation of the employer's own code of conduct is not actionable. See Civiletti v. Independence Savings Bank, 236 A.D.2d 436, 653 N.Y.S.2d 142 (2d Dep't 1997).
Moreover, the only legal or ethical rule plaintiff alleges, in hindsight, to have relied on in disobeying Sims' order is far too general to give rise to a Wieder claim. Rule 29.2 of the Rules of the New York State Board of Regents provides, in pertinent part, that unprofessional conduct in the field of pharmacy shall include "abandoning or neglecting a patient or client under and in need of immediate professional care, without making reasonable arrangements for the continuation of such care[.]" Id. Rule 29.2(a) (1). Plaintiff can point to no rule specifically covering the conduct in question, i.e., refusing to fill large volume prescriptions because of economic or licensing considerations. Such specificity was critical in Wieder. See, e.g., Fry, 945 F. Supp. at 667 (noting that Wieder is distinguishable from case in which employee alleges that discharge violates general ethical requirements).
Finally, at a minimum, plaintiff would be required to prove that he reasonably believed that refusing to fill Prendergast's prescriptions would be violative of Rule 29.2. See, e.g., N.Y. Civ. Serv. L. § 75-b (providing "whistleblower" protection to public employee who provides information to government regarding violation of law employee reasonably believes to be true).
Plaintiff fails to set forth any evidence that his belief regarding the March 8 and 11 prescriptions would have been reasonable. Prendergrast never told plaintiff that the prescriptions were for medical emergencies. Pl. Dep. at 266. Moreover, plaintiff knew that Prendergast was able to fill the prescriptions at another pharmacy in the area. Id. at 220, 263-264. Therefore, no jury could conclude that plaintiff reasonably believed that refusing to fill Prendergast's prescriptions on March 8 and 11 would be violative of Rule 29.2.
In short, Wieder is legally and factually inapplicable. Even if the Court were to recognize the Wieder exception in this case, plaintiff fails to raise a factual issue as to any legal or ethical rule that was violated, or that he reasonably believed would be violated by obeying Sims' directive. Defendant's motion for summary judgment is therefore granted, and plaintiff's cross-motion is denied as moot.
For all the foregoing reasons, defendant's motion for summary judgment is GRANTED, and the Second Amended Complaint, in its entirety, is DISMISSED. Plaintiff's cross-motion for summary judgment is DENIED as moot.
IT IS SO ORDERED.
Binghamton, New York
November 14, 1997
Hon. Thomas J. McAvoy
Chief U.S. District Judge