The opinion of the court was delivered by: John Gleeson, United States District Judge
Machel Liverpool brings this diversity action against his former employer, ConWay Freight ("Con-Way"),*fn1 pursuant to New York State common law and New York Labor Law § 215. Liverpool claims that Con-Way made a series of defamatory statements about him relating to a random drug test to which he was subjected while at Con-Way, and that Con-Way made these statements in retaliation for Liverpool's application for and ultimate attainment of unemployment benefits. Con-Way moves for summary judgment, and for the reasons stated below, I deny the motion.
In March 2004, Liverpool was hired by Con-Way as a dock worker.*fn2 He began work as a truck driver for Con-Way in June 2004. As a truck driver, he was subject to random drug tests pursuant to company policy and Department of Transportation ("DOT") regulations. When Liverpool was directed to take drug tests, he followed the instructions he received from Con-Way regarding the tests. He received no indication from Con-Way that he ever violated Con-Way rules or policies in reporting for those tests. Liverpool was subjected to one random drug test prior to the test at issue in this action, in November 2005. Neither Liverpool's supervisor nor the notification form for the test stated that Liverpool had to report to the test site immediately. Liverpool Decl. ¶¶ 2, 4, 14-18; Ex. G to Liverpool Opp'n, at 2.
On January 8, 2007, at approximately 7:50 AM, Liverpool arrived at work.
He was told by his supervisor, Winston Lawrence, to report for a random drug test and was given a packet containing a drug test notification form. The form did not indicate that Liverpool should report to the test site immediately or that he should return to work after the test, and Liverpool does not recall Lawrence's having given him either of those instructions.*fn3 Liverpool punched out and, believing that the testing site usually did not open until 9:00 or 9:30 AM and that he therefore "had some time," met up with a woman he knew and had sex. He arrived at the testing site at approximately 10:00 or 10:30 AM and was administered the drug test. He did not return to work on January 8 because he did not believe he was expected to do so, but he worked as usual on January 9, 10 and 11. Liverpool Decl.¶¶ 19-25, 27-28; Ex. G to Liverpool Opp'n, at 1.
On January 15, 2007, when Liverpool reported for work, he was directed to meet with his terminal manager, Jeff Delli Paoli. Delli Paoli asked Liverpool about what he had done the morning of January 8 and why he did not return to work after the test, and urged him to write down a statement recounting his actions that day. Unwilling to tell Delli Paoli that he had had sex on the morning of January 8, Liverpool lied and stated that he went to a Wendy's restaurant for breakfast before the test. He also truthfully stated that he had encountered road blocks and traffic on the way to the drug test. Liverpool was informed later that morning in a phone call with Chris Cline, Con-Way's personnel manager, that Con-Way had discovered that Wendy's did not serve breakfast, and that Liverpool was being terminated for the Wendy's lie and for poor attendance, as exhibited by his failure to return to work on January 8. Liverpool Decl. ¶¶ 30-33.
On January 16 and 17, 2007, Liverpool contacted Con-Way and faxed letters to its human resources department in Ann Arbor, Michigan and the director of human resources at that office. In those letters, he requested a copy of his employment records and an explanation for his termination. A week later, he received a copy of his records. Id. ¶¶ 40-42; Ex. J to Liverpool Opp'n, at 1, 2.
Soon thereafter, in late January 2007, Liverpool applied for unemployment benefits. The New York State Department of Labor ("DOL") determined that Liverpool was eligible to receive benefits on January 22, 2007. In papers submitted to DOL on February 8, 2007, Con-Way opposed the claim, alleging that Liverpool "was discharged for excessive absenteeism." On February 21, 2007, DOL notified Con-Way that its allegation was not supported by sufficient evidence and approved Liverpool's claim. Con-Way appealed from this decision, and after a hearing on April 12, 2007, Administrative Law Judge Lynn Morrell of the New York Unemployment Insurance Appeal Board (the "Appeal Board") denied Con-Way's appeal and affirmed the award of benefits to Liverpool on April 16, 2007. Liverpool Decl. ¶ 49; Ex. 12 to Con-Way Br., at 1-3, 7-8.
In February 2007, Liverpool applied for and accepted a job as a truck driver for J.B. Hunt. After learning that the job would require long-distance driving and that his son had just had an asthma attack, Liverpool left the job mid-way through orientation on February 22, 2007. He resumed his search for employment as a truck driver, and applied in October 2007 for a driving job with Bavarian Motor Transport ("Bavarian"), but Bavarian did not offer him employment. He subsequently learned that Con-Way had reported to Bavarian that Liverpool had failed or refused a drug test. Around the same time, Liverpool applied to United Staffing Systems, a placement service, for help in his job search. He later found out that Con-Way had reported to United Staffing Systems that Liverpool had failed or refused a drug test. Liverpool Decl. ¶¶ 44-45, 50-52; Ex. R to Liverpool Opp'n, at 2.*fn4
Liverpool also re-applied for a local job with J.B. Hunt in early November 2007. J.B. Hunt's investigator was told by Con-Way that Liverpool did not pass a drug test with them. Liverpool Decl. ¶ 54. Liverpool offered to rebut this claim but was told that J.B. Hunt could not hire him. Id. ¶¶ 53-55.
On November 5, 2007, Liverpool began working for Central Transport, Inc. ("Central") as a truck driver. One week later, he was told that a hold had been put on his employment. Central terminated Liverpool's employment a few days later. Liverpool requested an explanation, and subsequently received a copy of a report Con-Way had sent to Central stating that Liverpool had refused a drug test on January 8, 2007. Central also reported to the United States Investigations Services ("USIS") database, which provides background information to employers, that it had terminated Liverpool because of Con-Way's report. This information remained available to any prospective employer in the industry for the three years following Central's termination of Liverpool's employment. Id. ¶¶ 56-60.
Liverpool next applied for a job with the United States Postal Service ("USPS"). His efforts to obtain employment with USPS were thwarted because Con-Way refused to provide USPS with Liverpool's driving history, claiming that his release was insufficient. Liverpool has been unable to obtain employment as a truck driver in the intervening years leading up to this action. Id. ¶¶ 61-62; Ex. R to Liverpool Opp'n, at 4.
In his December 5, 2008 amended complaint, Liverpool alleges that Con-Way's statements regarding the January 8, 2007 drug test were defamatory, that Con-Way made these statements in retaliation for Liverpool's having prevailed over Con-Way's objection in obtaining unemployment benefits, and that Con-Way's actions render it liable to Liverpool under a theory of prima facie tort. On February 6, 2009, the defendants filed a motion to dismiss, arguing that the Court does not have jurisdiction over Con-Way, Inc. and that Liverpool's complaint fails to state a claim against any of the defendants. After hearing oral argument on the motion on April 17, 2009, I denied the motion insofar as it alleged lack of jurisdiction and failure to state a claim with regard to Liverpool's first five causes of action, and granted it as to Liverpool's sixth cause of action, i.e., the prima facie tort claim.
Con-Way filed the instant motion for summary judgment on August 27, 2010, claiming that: (1) Liverpool's defamation claims are barred by the statute of limitations; (2) Liverpool has failed to establish the elements of his New York Labor Law § 215 claim; (3) Liverpool has failed to establish the elements of his defamation claims; and (4) Liverpool's claims in any event are barred by the shorter statute of limitations provided for in his employment contract with Con-Way.
Summary judgment should be granted when "there is no genuine issue as to any material fact and . . . the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c)(2). In determining whether a genuine issue of material fact exists, "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000). After the court has reviewed the record "taken as a whole," Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), it should grant summary judgment only if "no rational finder of fact could find in favor of the non-moving party," Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). "[T]he moving party bears the initial burden of establishing that there are no genuine issues of material fact[;] once such a showing is made, the non-movant must 'set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986) (citing Fed. R. Civ. P. 56(e))). The non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts," Matsushita, 475 U.S. at 586; it cannot rely solely on the pleadings, but must produce "significant probative evidence tending to ...