Herlihy v. Metropolitan Museum of Art

214 A.D.2d 250, 633 N.Y.S.2d 106, 1995 N.Y. App. Div. LEXIS 10035, 68 Empl. Prac. Dec. (CCH) 44,163
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 10, 1995
StatusPublished
Cited by82 cases

This text of 214 A.D.2d 250 (Herlihy v. Metropolitan Museum of Art) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Herlihy v. Metropolitan Museum of Art, 214 A.D.2d 250, 633 N.Y.S.2d 106, 1995 N.Y. App. Div. LEXIS 10035, 68 Empl. Prac. Dec. (CCH) 44,163 (N.Y. Ct. App. 1995).

Opinion

OPINION OF THE COURT

Tom, J.

This appeal raises the issue of whether statements made by [254]*254workers to their employer, concerning certain anti-Semitic remarks allegedly made by a supervisor, are privileged communications and therefore, not actionable.

Plaintiff Cecile Herlihy was employed by defendant the Metropolitan Museum of Art (the Museum) for a period of more than 20 years and, at the time in question, was in charge of recruiting and supervising Museum volunteers. The volunteers are utilized in the curatorial and administrative departments as well as in conjunction with the Museum’s education department. Defendant Judith Strone began working as a volunteer in September 1971, defendant Sandra Ortner in October 1988, and defendant Ruth Zalinka in June 1990 (the foregoing individuals will be collectively referred to herein as the volunteers or the individual defendants).

In July and August 1991, the volunteers complained to the Museum’s Human Resources Office, as well as other officials, that plaintiff had made anti-Semitic remarks to them. Specifically, in July 1991, Zalinka and Ortner reported that plaintiff had said "you Jews are such liars” and "you Jews are all alike.” In August 1991, Strone averred that plaintiff had remarked that the Jewish volunteers were "f_king whores”, "liars” and "undependable”.

After being confronted with the volunteers’ charges, plaintiff informed the Museum’s officers that she had never made the remarks and that the volunteers’ accusations were totally false. Plaintiff further asserted that the defendants were acting to retaliate against plaintiff after she exercised authority over their work schedules, questioned the feasibility of certain work schedule requests around Rosh Hashanah, and issued them reprimands regarding their respective work performances.

The Museum’s Manager of Membership, purportedly after conducting some sort of investigation, demanded that Herlihy apologize for her remarks. On or about September 11, 1991, the Museum suspended plaintiff and on or about October 7, 1991, plaintiff was informed she was being terminated. Herlihy maintains that in the interim between her suspension and ultimate discharge, Museum officials inquired if her job was "getting to be too much for her” and that after her discharge, her duties were assigned to two younger, less experienced individuals. Plaintiff was 72 years of age at the time in question.

Plaintiff subsequently commenced the underlying action by [255]*255the service of a summons and complaint which interposed five causes of action asserting, respectively: slander per se as against the volunteer defendants; slander with allegations of special damages as against the volunteer defendants; discrimination against plaintiff on the basis of her age in violation of the Human Rights Law as against the Museum; tortious interference with plaintiff’s business relations with the Museum as against the volunteer defendants; and intentional infliction of emotional distress as against all of the defendants.

The individual defendants moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) and/or for summary judgment pursuant to CPLR 3212, asserting that plaintiff’s action against them amounts to unlawful retaliation for having engaged in their statutorily protected right to be free from discrimination. The Museum, as part of the same motion, moved to dismiss with regard to the intentional infliction of emotional distress cause of action only. The IAS Court treated the motion as one for summary judgment pursuant to CPLR 3211 (c) and granted the Museum the relief sought but denied that branch of the motion pertaining to the volunteers in its entirety. The individual defendants now appeal.

Initially we find that the IAS Court did not abuse its discretion and properly treated the motion as one for summary judgment as all of the parties laid bare their proof and submitted extensive affidavits, giving plaintiff a sufficient opportunity to make an appropriate record. It is, therefore, clear that both sides deliberately charted a summary judgment course (Mihlovan v Grozavu, 72 NY2d 506; Four Seasons Hotels v Vinnik, 127 AD2d 310).

Defendants argue with regard to the slander and slander per se causes of action that State, Federal and local antidiscrimination statutes confer privileges which render them absolutely immune from retaliation for lodging a discrimination complaint. Alternatively, defendants assert that their statements were protected by a cloak of absolute and qualified privilege.

The first issue to be addressed is the balance between the need for protecting society’s interest in maintaining a discrimination-free workforce and an aggrieved party’s right to protect his/her good reputation and standing among his/her peers. It has long been recognized by the courts that the public interest is served by shielding certain communications from litigation, though possibly defamatory, rather than risk [256]*256stifling them completely (Liberman v Gelstein, 80 NY2d 429, 437; Bingham v Gaynor, 203 NY 27, 31).

It is clear that numerous Federal, State and local statutes expressly exist to encourage victims of workplace discrimination to come forward and report discriminatory incidents and, at the same time, impose upon employers a corresponding duty to investigate those complaints and, if appropriate, take necessary action (see, e.g., 42 USC §§ 2000a-2, 2000e-3 [a]; Executive Law § 296 [7]; Administrative Code of City of NY § 8-107 [7]). Retaliation by employers against individuals for complaining of or opposing actions that they believe are discriminatory is illegal and employers can be held liable for tolerating discriminatory behavior (Executive Law § 296 [1] [e]; [3-a] [c]).1

In Matter of Mohawk Finishing Prods. v State Div. of Human Rights (57 NY2d 892), however, the Court of Appeals rejected the notion of an absolute bar against retaliation for an unfounded complaint of discriminatory practices. In Mohawk, the Court affirmed the Third Department’s annulment of a determination of discriminatory practices by the Human Rights Appeal Board, finding that there was insufficient evidence to satisfy either the Federal standard that a complainant must have a reasonable belief that her employer was engaging in discriminatory practices, or the more stringent standard set forth by the Third Department that the employer’s practice did, in fact, violate the Human Rights Law.

In Mohawk, however, the Court of Appeals, despite the opportunity, failed to specifically adopt either the Third Department or Federal standard.2 As a result, the Third Department, "[u]pon reflection”, concluded in a later case that the more relaxed "reasonable belief standard” was appropriate in view of the remedial nature of the Human Rights Law and an explicit statutory admonition to construe the statute liberally (Matter of New York State Off. of Mental Retardation & Dev. Disabilities v New York State Div. of Human Rights, 164 AD2d 208, 210).

The majority of cases relied upon by defendants in support [257]*257of their claim of an absolute statutory privilege base such privilege on the existence of a quasi-judicial proceeding, which did not occur in the matter before us. For instance, in Proulx v Citibank

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Couteller v. Mamakos
2025 NY Slip Op 06965 (Appellate Division of the Supreme Court of New York, 2025)
Maines Food & Party Warehouse, Inc. v. Hurlburt
2025 NY Slip Op 30781(U) (New York Supreme Court, Broome County, 2025)
Buckler v. Temple Court
2024 NY Slip Op 33843(U) (New York Supreme Court, New York County, 2024)
Brown v. Riverside Church in the City of N.Y.
2024 NY Slip Op 03927 (Appellate Division of the Supreme Court of New York, 2024)
Bondarevsky v. Shamis Chiropractic P.C.
2024 NY Slip Op 50916(U) (New York Supreme Court, Kings County, 2024)
Zheng v. Centers Urgent Care Mgt., LLC
2024 NY Slip Op 03395 (Appellate Division of the Supreme Court of New York, 2024)
Margolies v. Rudolph
E.D. New York, 2023
American Infertility of N.Y., P.C. v. Kushnir
2020 NY Slip Op 06044 (Appellate Division of the Supreme Court of New York, 2020)
Weitsman v. Levesque
S.D. California, 2020
Bah v. Apple Inc.
S.D. New York, 2020
Truman v. Brown
S.D. New York, 2020
Jacobus v. Trump
2017 NY Slip Op 8625 (Appellate Division of the Supreme Court of New York, 2017)
D'Amico v. Zingaro
135 A.D.3d 805 (Appellate Division of the Supreme Court of New York, 2016)
Turley v. ISG Lackawanna, Inc.
Second Circuit, 2014
Flomenhaft v. Jacoby & Meyers, LLP
122 A.D.3d 422 (Appellate Division of the Supreme Court of New York, 2014)
Smith v. Montefiore Medical Center
116 A.D.3d 573 (Appellate Division of the Supreme Court of New York, 2014)
Kickertz v. New York University
110 A.D.3d 268 (Appellate Division of the Supreme Court of New York, 2013)
Lan Sang v. Ming Hai
951 F. Supp. 2d 504 (S.D. New York, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
214 A.D.2d 250, 633 N.Y.S.2d 106, 1995 N.Y. App. Div. LEXIS 10035, 68 Empl. Prac. Dec. (CCH) 44,163, Counsel Stack Legal Research, https://law.counselstack.com/opinion/herlihy-v-metropolitan-museum-of-art-nyappdiv-1995.