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Arias-Zeballos v. Tan

March 28, 2008


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Plaintiff Maria Arias-Zeballos ("Zeballos") brought this action for, inter alia, breach of contract, fraud, and defamation, against her former employer, Anamah Tan. Tan counterclaimed for defamation. Tan now moves for summary judgment with respect to all of Zeballos's claims. Zeballos cross-moves for summary judgment on all of her claims, as well as on Tan's counterclaims for defamation. For the following reasons, Tan's motion is granted in part and denied in part, Zeballos's cross-motion for summary judgment on her claims is denied, and her motion for summary judgment on Tan's counterclaims is granted in part and denied in part.


The following facts are not in dispute. On or about November 2003, Tan and Zeballos entered into a written employment agreement. (Tan Decl.*fn1 ¶ 6.) At that time, Tan, a citizen of Singapore, was a board member and the president of the International Council of Women ("ICW"), a non-governmental organization ("NGO") that works in collaboration with the United Nations ("UN") to promote equal rights and responsibilities for women around the world. (Id. ¶ 7.) She was also seeking to become a member of the Committee on the Elimination of Discrimination Against Women ("CEDAW"), a UN body with a similar mission to that of ICW. (Id. ¶ 6.) Zeballos was at that time an ICW representative to the UN, a unpaid position which involved attending UN sessions whenever possible and submitting two brief annual reports to ICW. (Pl. Aff.*fn2 ¶ 7.) The employment agreement called for Zeballos to assist Tan in her campaign to become a member of CEDAW by various means, including arranging speaking engagements, writing speeches, and keeping Tan up to date on women's issues. (Tan Decl. Ex. A.) The agreement made the appointment retroactive to September 2003, and specified a salary of $2,500 per month ($30,000 per year). (Id.) This salary was to be reimbursed to Tan by a ministry of the Singapore government. (Id.) Zeballos worked for Tan pursuant to this agreement from September 2003 until July 2005. (Tan Decl. ¶¶ 6, 8.)

However, Zeballos alleges that this written employment agreement was not the only agreement between the two women. She alleges that there was a prior oral employment agreement, negotiated in March 2003, under which Zeballos was to work full-time for Tan, as an assistant to her in her position as president of the ICW. (Am. Compl. ¶ 59.) Under this alleged agreement, Tan promised to pay Zeballos $60,000 per year, plus various benefits, for a period from September 2003 to 2006, coinciding with Tan's appointment as ICW president. (Id.) According to Zeballos, in September 2003, just as her employment was beginning, Tan informed Zeballos that she did not have sufficient funds to pay her the $60,000 per year as agreed, but that she could pay her $30,000 per year now, and make up the difference at a later time. (Id. ¶ 68.) Zeballos agreed, and the written agreement executed in November, according to Zeballos, recorded only the terms of this partial payment, and not the complete terms of her employment. (Id. ¶ 69.) Following execution of this agreement, Zeballos continued to perform her duties as assistant to the president of the ICW, in addition to the duties spelled out in the written agreement, assisting Tan in her campaign for CEDAW membership. (Id. ¶ 74.) During this time Tan reassured Zeballos that the prior oral agreement was still in force. (Id. ¶ 78.)

Whatever the terms of their agreement, both parties agree that it came to an end in July 2005. According to Zeballos, the relationship started to unravel on July 2, when she overheard Tan "screaming" over the phone at a domestic servant of Tan's in Singapore. (Id. ¶ 83.) When Zeballos objected to what she perceived to be Tan's "discriminatory and inhumane" treatment of the worker (id. ¶ 84), Tan allegedly retaliated against Zeballos by threatening to fire her and by carrying out, during the following days, "a series of malicious, intentional[] actions" against Zeballos, "creating a very negative work environment" (id. ¶ 85). The tension between the parties came to a head at a CEDAW meeting on July 15, when according to Zeballos, Tan became angry and screamed at Zeballos in the middle of the session, causing Zeballos great humiliation. (Id. ¶¶ 88-89.)

After the July 15 incident, Zeballos concluded that Tan was purposefully making it impossible for Zeballos to do her job, and that Tan had no intention to pay her the additional compensation she had promised. After consulting with the office of legal counsel at the UN about the matter, she submitted a letter to the members of CEDAW, detailing Tan's mistreatment of Zeballos and other employees. (Id. ¶ 91.) Zeballos stopped performing any work for Tan, but attempted, at first with the assistance of counsel, to secure the compensation she was allegedly owed. (Id. ¶¶ 92-93.)

When her efforts failed, she filed suit, alleging breach of contract, discrimination, retaliation and defamation. Tan timely answered, and asserted counterclaims, alleging that the letter Zeballos delivered to members of CEDAW in July 2005 contained "false and severely defamatory statements" about Tan and her work. (Partial Answer ¶ 27.) In addition to her defamation claim, Tan asserted counterclaims for intentional infliction of emotional distress, prima facie tort, and "breach of contractual fiduciary duty." (Id. ¶¶ 42-65.) This Court dismissed Zeballos's claims for discrimination and retaliation, and Tan's counterclaims for intentional infliction of emotional distress and prima facie tort. Arias-Zeballos v. Tan ("Zeballos I"), 06 Civ. 1268 (GEL), 2006 WL 3075528, at *6, 12-13 (S.D.N.Y. October 26, 2006). Tan's counterclaim for breach of fiduciary duty was withdrawn. (See D. Statement Pursuant to Local Civ. R. 56.1(b) (In Opp'n to P. Mot. for Summ. J. with Respect to D. Counterclaim for Defamation) ¶ 17.)


An earlier opinion and order of the Court noted that the resolution of pending motions had "been complicated and delayed in part by both parties' inclusion of lengthy, irrelevant and redundant arguments and exhibits in their submissions to the Court." Zeballos I, 2006 WL 3075528, at *3. Unfortunately, the Court faces the same issue again, as Zeballos has continued the practice unabated with the present motions. In addition to her opposition to defendant's motion for summary judgment, Zeballos submitted a separate motion for summary judgment on defendant's counterclaims and a cross-motion for summary judgment on her fraud claim, each of which addressed largely (though not entirely) the same issues with reference to largely (though not entirely) the same alleged facts and exhibits. Moreover, these submission contained no concise statements of undisputed and disputed facts as required by Local Rule 56.1, nor indeed any clear markers of which papers contained Zeballos's allegations, which contained her sworn factual statements and which contained her legal arguments.

The magistrate judge appropriately ordered Zeballos to re-submit her motions in compliance with federal rules and the rules of this Court, but the new briefs were, unfortunately, neither in compliance with the rules nor, for that matter, truly re-submissions, as they added facts, exhibits and allegations not contained in the earlier submissions, while omitting others that were. As a result, the Court has been forced to consider these briefs in addition to, rather than in place of, Zeballos's earlier submissions. This welter of submissions has wasted the time of the defendant, who has been forced to make repeated supplemental responses, and of the Court, which has spent significant time attempting to make sense of this deluge of overlapping filings. Nevertheless, recognizing plaintiff's pro se status, the Court has considered plaintiff's arguments and evidence -- as best it can make them out -- in deciding the present motions for summary judgment.

I. Summary Judgment Standard

Summary judgment is appropriate where the "pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). Rule 56 "mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). The party moving for summary judgment bears the initial burden of explaining the basis for its motion and identifying those portions of the record which it believes "demonstrate the absence of a genuine issue of material fact." Id. at 323. The burden then shifts to the non-movant to produce evidence sufficient to create a genuine issue of material fact for trial. Fed. R. Civ. P. 56(e)(2). See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).

The Court's responsibility is to determine if there is a genuine issue to be tried, and not to resolve disputed issues of fact. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). The Court must draw all "justifiable inferences" and resolve all ambiguities in the non-movant's favor, and construe the facts in the light most favorable to the non-movant. Id. at 255. However, the "mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient" to withstand a motion for summary judgment. Id. at 252.

A non-movant's unsupported denials of the movant's evidence, without more, cannot create disputes of material fact. When a summary judgment motion is "properly made and supported, an opposing party may not rely merely on allegations or denials in its own pleading" but must "by affidavits or as otherwise provided . . . set out specific facts showing a genuine issue for trial." Fed. R. Civ. P. 56(e)(2). The affidavits must be based on personal knowledge. Danzer v. Norden Systems, Inc., 151 F.3d 50, 57 n.5 (2d Cir. 1998). The evidence must be admissible. Likewise, "conclusory statements or mere allegations [are] not sufficient to defeat a summary judgment motion." Davis v. State of New York, 316 F.3d 93, 100 (2d Cir. 2002); see also id. ("The nonmoving party must go beyond the pleadings and by [his or] her own affidavits, or by the depositions, answers to interrogatories, and admissions on file, designate specific facts showing that there is a genuine issue for trial.") (alterations in original) (citation and internal quotation marks omitted).

II. Plaintiff's Claims

A. Breach of Contract

1. Defendant's Motion for Summary Judgment

Tan moves for summary judgment on Zeballos's claim for a breach of the oral contract between the two parties. She argues that this claim is barred by the statute of frauds,*fn3 which requires that an agreement be memorialized by a writing if that agreement "is not to be performed within one year from the making thereof." N.Y. Gen. Oblig. Law § 5-701a. The requirement is read narrowly such that an agreement is covered by the statute only if complete performance of the contract within one year is impossible, and not merely unlikely or improbable. Kubin v. Miller, 801 F. Supp. 1101, 1120 (S.D.N.Y. 1992), citing D & N Boening Inc. v. Kirsch Beverages Inc., 63 N.Y.2d 449, 454 (1984). With employment contracts, "the exercise of the right of termination associated with a hiring at will is a means of completion of the contract." Stucklen v. Kabro Associates, 795 N.Y.S.2d 256, 256 (2d Dep't 2005). Accordingly, where "employment [is] terminable at will . . . the statute of frauds is not a bar to enforcement of the alleged oral agreement because its performance within one year [is] possible." Id. See also Curtis v. Harry Winston, Inc. 653 F. Supp. 1504, 1510 (S.D.N.Y. 1987) (holding that statute of frauds does not prevent recovery on oral contract for an "at-will employee" who "could have been terminated . . . at any time").

Tan has not established as a matter of law that Zeballos's claim for recovery on an oral contract for employment is barred by the statute of frauds. Zeballos did say in her deposition that it was her "clear understanding" that she was "to be employed by [Tan] for a 3-year term." (Zeballos Tr.*fn4 70.) However, other evidence suggests that Zeballos understood her employment by Tan to be at will. Zeballos acknowledges that, during the three-year "term," Tan was free to "discharge me at any time," just as Zeballos "certainly was free to quit at any time." (Pl. Aff. ¶ 11.) This is consistent with Zeballos's unrefuted contention in her complaint that Tan, following the incident involving her maid in Singapore, told Zeballos that "[w]hen you work for me, Maria, it's like this, so like it or leave it." (Am. Compl. ¶ 84.) Had Zeballos understood her position to be for a guaranteed term, she would not have thereafter "felt threatened with losing her job at wanton, at any time, and thus her only means of support." (Id.) Moreover, Zeballos claims she resigned "under duress" (id. ¶ 91), and yet seeks compensation only for her employment from September 2003 to August 2005 (id. ¶ 32), the time during which she performed work for Tan, and not for the remainder of the "term," which she would have been entitled to (on the facts alleged) under a true fixed term contract.

Zeballos's description of the contract as having a "3-year term" therefore could reasonably be taken to mean nothing more than that the contract called for her to serve Tan during her three year tenure as president of the ICW, so long as they both desired that employment to continue, and not that there was a contractual guarantee of a fixed term of employment.*fn5 As Zeballos is proceeding pro se, a jury could reasonably decline to attribute a technical legal meaning to her description of the employment terms. What is important is how the parties understood the substance of their agreement, and the evidence would permit a reasonable fact-finder to conclude that, if there was any oral agreement at all, the parties understood Zeballos's employment under that agreement to be at will.*fn6 Defendant has not demonstrated that any reasonable fact-finder ...

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