and, hence, have no basis for attributing to the statement a defamatory meaning. See Van-Go Transport Co. v. New York City Bd. of Ed., 971 F. Supp. 90, 98-99 (E.D.N.Y. 1997) (stating that a "statement may be shown to be libelous per se by pleading extrinsic facts that are ' presumably known ' to the readers of the statement") (emphasis added) (quoting Hinsdale v. Orange County Publications, Inc., 17 N.Y.2d 284, 270 N.Y.S.2d 592, 597, 217 N.E.2d 650 (Ct. App. 1966)); Alvarado v. K-III Magazine Corp., 203 A.D.2d 135, 610 N.Y.S.2d 241, 243 (1st Dep't 1994) (holding that photo accompanying magazine article depicting plaintiffs as underage drinkers was not libelous on its face because "plaintiffs' ages [were] not stated or otherwise apparent in the article" and therefore such information constituted extrinsic fact not "presumably known to its readers").
Plaintiff has failed to offer any such proof. The only person who might have been aware of Innes's concerns about plaintiff's performance prior to the dissemination of the May 3, 1996 e-mail was Ann McFadden. Innes and McFadden both testified that Innes had distributed a copy of the April 30, 1996 "Memo to File" to McFadden because she was head of personnel and therefore maintained plaintiff's personnel file. (See Wolff Aff., Exh. 11, Innes Dep. at 287; Id., Exh. 12, McFadden Dep. at 106). McFadden further testified, however, that she did not understand the e-mail to have the defamatory connotation that plaintiff suggests. (See id., Exh. 12, McFadden Dep. at 115-16). Moreover, McFadden testified that she never showed the memo to anyone else, nor discussed it with anyone else. (See id., Exh. 12, McFadden Dep. at 106). Plaintiff has simply offered no evidence from which a reasonable jury could find that a third party who read the e-mail transmission knew of the extrinsic facts that plaintiff claims render the e-mail defamatory, and that such third party actually understood the statements contained therein to be disparaging of plaintiff's business reputation.
In sum, I conclude that plaintiff has failed to present evidence from which a reasonable jury could find that Innes's May 3, 1996 e-mail transmission was libelous per se, thereby injuring plaintiff's business or professional reputation. Accordingly, defendants' motion for summary judgment dismissing the defamation claim is granted.
2. Claim for Intentional Infliction of Emotional Distress
For his second cause of action, plaintiff claims that by publishing the allegedly false and defamatory e-mail, Innes intended to inflict on him severe emotional distress. Dismissal of this claim, too, is warranted on several independent grounds.
First, "New York's courts have rejected claims of intentional infliction of emotional distress 'where the conduct complained of falls well within the ambit of other traditional tort liability.'" Levin v. McPhee, 917 F. Supp. 230, 242 (S.D.N.Y. 1996) (quoting Fischer v. Maloney, 43 N.Y.2d 553, 402 N.Y.S.2d 991, 993, 373 N.E.2d 1215 (Ct. App. 1978)), aff'd, 119 F.3d 189 (2d Cir. 1997). Plaintiff's claim for intentional infliction of emotional distress based on defendants' alleged publication of a libel is "duplicative" and is therefore, as New York courts have repeatedly held, "more properly addressed within the context of a libel suit." Id.; see, e.g., Sweeney v. Prisoners' Legal Servs. of New York, Inc., 146 A.D.2d 1, 538 N.Y.S.2d 370, 374 (3d Dep't 1989); Manno v. Hembrooke, 120 A.D.2d 818, 501 N.Y.S.2d 933, 936 (3d Dep't 1986).
Furthermore, the basis for plaintiff's claim for intentional infliction of emotional distress is that he was forced to resign from the company sooner than he intended due to the embarrassment he experienced as a result of the dissemination of the e-mail. Such a claim is in essence a claim for constructive abusive or wrongful discharge. The New York Court of Appeals has held, however, that there is no cause of action in tort in New York for abusive or wrongful discharge of an at-will employee. Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 461 N.Y.S.2d 232, 235, 448 N.E.2d 86 (Ct. App. 1983). Accordingly, "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." Id.; accord Tischmann v. ITT/Sheraton Corp., 882 F. Supp. 1358, 1367-68 (S.D.N.Y. 1995)
Finally, defendants correctly assert that the conduct alleged by plaintiff fails to meet the stringent standard New York courts apply to determine whether conduct amounts to intentional infliction of emotional distress. To prevail on a claim for intentional infliction of emotional distress under New York law, a plaintiff must prove the following elements: "(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress, (3) a causal connection between the conduct and the injury, and (4) severe emotional distress." Bender v. City of New York, 78 F.3d 787, 790 (2d Cir. 1996). New York courts strictly apply this test and require the conduct alleged to be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Martin v. Citibank, N.A., 762 F.2d 212, 220 (2d Cir. 1985) (quoting Fischer, 402 N.Y.S.2d at 993).
Even assuming that all of plaintiff's factual allegations are true, and resolving all ambiguities and drawing all inferences in plaintiff's favor, defendant's alleged conduct fails to satisfy New York's stringent requirements. As discussed above, by disseminating the May 3, 1996 e-mail, Innes merely informed a select group of Sedgwick NY personnel of the termination of plaintiff's employment, and the text of the e-mail is otherwise benign. Even assuming that plaintiff had not agreed to begin to seek other employment and that Innes was unilaterally terminating plaintiff's employment, which was his prerogative, as plaintiff was an "at-will" employee whose employment could be terminated at any time for any lawful reason, no reasonable jury could conclude that Innes's conduct was "outrageous," "atrocious," or "intolerable." Accordingly, defendants' motion for summary judgment dismissing the intentional infliction of emotional distress claim is also granted.
For the foregoing reasons, defendants' motion for summary judgment is granted in its entirety. The Clerk of the Court shall enter judgment in favor of defendants dismissing the complaint with prejudice.
Dated: New York, New York
January 27, 1998
United States District Judge