Garrison v. Toshiba America Business Solutions, Inc.
MEMORANDUM AND ORDER granting 32 Motion for Summary Judgment; For the reasons set forth herein, the court grants Defendants' motion for summary judgment in its entirety. The Clerk of the Court is directed to terminate the motion appearing at docket entry number 32 . Jury selection as to the still pending counterclaims for breach of contract, misappropriation of trade secrets, tortious interference with business relations, breach of duty ofloyalty, and unfair competition will be held on the previously scheduled date of June 10, 2013, with trial to follow. ( Ordered by Judge Leonard D. Wexler on 12/3/2012.) (Fagan, Linda)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM AND ORDER
TOSHIBA BUSINESS SOLUTIONS
-andTOSHIBA AMERICAN BUSINESS
ABRAMS, FENS TERMAN, EISMAN, GREENBERG
FORMATO & EINIGER, LLP.
BY: SARAH C. LICHTENSTEIN, ESQ.
Attorneys for Plaintiffs
1111 Marcus Avenue, Suite 107
Lake Success, New York 11042
BUCHANAN INGERSOLL & ROONEY, PC
BY: PETERM. AVERY, ESQ.
Attorneys for Defendants
550 Broad Street, Suite 810
Newark, New Jersey 071 02
WE)(LER, District Judge:
This is an action commenced by Plaintiff Earl Garrison ("Plaintiff' or "Garrison") against
his former employer, Defendant Toshiba Business Solutions (USA), Inc. ("TBS"), and its
corporate parent, Toshiba America Business Solutions, Inc. ("TABS"). Plaintiff alleges only
state law causes of action, and therefore jurisdiction is based solely on diversity of citizenship
pursuant to 28 U.S.C. §1332. Presently before the court is the motion of Defendants, pursuant to
Rule 56 of the Federal Rules of Civil Procedure, for summary judgment as to all of Plaintiff's
In the context of this motion for summary judgment the facts set forth below are drawn
from documents properly before the court including testimony and the parties' statements
pursuant to Rule 56.1 of the rules ofthis court.
The Parties and Garrison's Emplovment
Plaintiff is an individual residing in this district. TBS, a wholly owned subsidiary of
TABS, is a dealer in office equipment including copiers, scanners and fax machines. Garrison
was employed by TBS from 2006, until his termination on March 15,2012. He commenced his
employment with the company when TBS acquired Plaintiff's employer at the time, a company
known as Candle Business Systems, Inc. ("Candle"). While employed by Candle, Plaintiff
entered into an employment agreement (the "Candle Agreement"). A restrictive covenant
contained within the Candle Agreement states that Garrison is prohibited from soliciting business
from any of Candles' customers for a two year period following termination. Plaintiff was paid
an additional $200,000 for agreeing to enter into the restrictive covenant contained in the Candle
TBS has interposed counterclaims which are not presently before the court.
During the course of his employment by TBS, Plaintiff worked in a variety of sales
positions. Beginning his employment as a sales representative, Garrison was later promoted to
the position of Regional Manager for Long Island and later, for the area encompassing New York
and Westchester. As noted, Plaintiff was terminated on March 15,2011. Garrison ultimately
obtained new employment with a company known as U.S. Business Technologies ("USBT"). He
began his employment with USBT in April of2011 -just 27 days after his termination by TBS.
The Reorganization ofTBS
Difficulty appears to have arisen between Garrison and TBS beginning in late 2010 and
early 2011, when the company began to reorganize its management. The president of the New
York/New Jersey area was terminated in January of2011, and that region was absorbed into the
Northeast Region ofTBS which was under the control of Bob Hallissy ("Hallissy"). Hallissy
was a TBS regional president located in Massachusetts. Upon assumption of his new
responsibilities, Hallissy decided to create the position of Sales Vice President for the New York
region ("Sales VP/NY"). Plaintiff interviewed for the newly created position in January of2011.
Ultimately, the position was given to a different applicant, Jerry Masseur ("Masseur").
Garrison's Conduct and An Investigation at TBS Prior to His Termination
TBS has submitted the affidavits ofHallissy and Masseur along with those of Dolores
Molinaro, a TBS Human Resources Manager ("Molinaro"), and Joseph Ficarra, a TBS service
technician ("Ficarra"). The affidavits of Hallissy, Masseur and Molino relate, inter alia, to
The court makes no findings, in the context of this motion, as to whether the
Candle Agreement governs any claims in this lawsuit.
Garrison's absence from the office he was to have managed and his efforts, while still employed
by TBS, to recruit TBS salespeople to leave their positions and join Garrison in a new venture in
the same industry.
Additional affidavits and deposition testimony before the court refer to a February 2011
discovery of alleged irregularities regarding Garrison's expense report and an investigation with
respect thereto. Statements alleged to have been made concerning this investigation form the
basis of Plaintiff's defamation claim. Those statements are alleged by Plaintiff to have been
made by TBS service technician Ficarra, to Steve Carballeira ("Carballeira"), a graphic material
designer for the Town of Huntington (the "Town"), and Leo White ("White"), an officer at a
company known as Duro Dyne Corporation ("Duro Dyne"). Both the Town and Duro Dyne were
Plaintiff alleges that Ficarra made a remark to Carballeira while Ficarra was servicing a
TBS machine at the Town's print shop. The remark, which concerned the TBS investigation of
Garrison is alleged to have been made when the Town was considering bids from TBS and
USBT. Carballeira testified at his deposition that he knew Garrison since approximately 2002,
when the Town was doing business with Candle. He testified further that Ficarra told him that if
it were his decision, he "would be careful about going with [Garrison]" because he heard through
TBS that Garrison was being "investigated for illegal doings." The discussion with Ficarra lasted,
in Carballeira's estimation, less than two minutes, Carballeira stated that he was not the decisionmaker with respect to the competing bids and he told no one at the Town about Ficarra's
remarks. He further testified that he contacted Garrison who told him there was no truth to the
remark. Carballeira stated that he took Garrison at his word and made no further inquiry
regarding any investigation.
Similar to the claim made with respect to Carballeira, Garrison claims that White told
him that he heard from Ficarra that Garrison was under investigation for illegal activities. There
is no testimony from White as to anything he heard directly from Ficarra. Indeed, White disputes
Plaintiffs account. At his deposition, he stated that Ficarra told him that he was unaware of the
reason why Garrison left Toshiba. Indeed, White testified that he recalled nothing being said by
Ficarra about any investigation of Garrison. For his part, Ficarra denies the making of any
remark, either to Carballeira, White, or anyone else regarding any investigation of Garrison.
Ultimately, both the Town and Duro Dyne renewed their contracts with Toshiba.
Plaintiffs Pursuit of a Position at Leslie Digital Imaging
Garrison alleges that after meeting with Masseur in February of2011, he became
convinced that his days at TBS were numbered and he therefore responded to a previously
declined approach from TBS competitor Leslie Digital Imaging ("LDI"). Although Plaintiff
explored this opportunity and met with LDI, he was not hired by that company. Before the court
are affidavits and deposition transcripts of those who were involved in discussions with Garrison
relating to the possibility of employment, and the decision not to go forward with that business
relationship. Specifically, before the court are portions of the deposition transcripts of Ted
LeBlanc, a TBS employee ("LeBlanc"), Jim Coler, an LDI branch sales manager for Northern
New Jersey ("Coler") and Paul Schwartz, LDI's Chief Operating Officer ("Schwartz"). Pursuant
to the LDI chain of command, Coler reports to Schwartz. Also before the court is the affidavit of
Barry Bunsis, LDI's Chief Financial Officer ("Bunsis").
Coler, who was not the final decision maker with respect to the decision as to whether to
hire Garrison, was involved with discussions with Plaintiff about a possible position with LDI.
According to Coler, LDI and Garrison never reached agreement as to a position, and it was Coler,
as the direct point of contact, who ultimately advised Garrison that LDI had decided to go in
another direction. It was Coler's recollection that the parties failed to come to terms because of
issues regarding Garrison's base salary, LDI' s concerns about a non-compete agreement with
TBS, as well as Garrison's engagement in an outside business. Coler testified as to a single
conversation he had with LeBlanc (a TBS employee) during which he recalled LeBlanc telling
him that TBS would enforce its non-compete agreement with Garrison. LeBlanc testified that he
told Coler that if Garrison violated any agreement he had with TBS, TBS would "go after him."
Coler did not respond to LeBlanc's comments regarding the agreement, because it related to
matters that were "beyond his level." Coler further testified that he did not recall telling anyone at
LDI about his conversation with LeBlanc.
Schwartz, to whom Coler reports, testified clearly that while discussions were held with
Garrison, LDI never made an offer of employment. Schwartz stated that the decision was made
to terminate discussions with Garrison because he "was pushing for a decision and we weren't
prepared to offer him a job." Schwartz explained that the "fit" was not right and there were
concerns about a TBS non-compete agreement, as well as Garrison's side business.
Bunsis, an LDI decision maker, states unequivocally in his affidavit that the while LDI
considered hiring Garrison, there was never a decision made to offer him a position. Among the
reasons for this business decision, as set forth in the Bunsis affidavit, were Garrison's previous
non-compete agreement and his engagement in a side business. Garrison received no offer of
employment from LDI and as noted, obtained a position with USBT in April of 20 II,
approximately one month after his dismissal from TBS.
There is no question but that Plaintiff was a TBS employee at will. Plaintiff
acknowledges his at will status, and makes no claim for wrongful termination. Instead, his claims
allege tortious interference with a prospective business relationship, defamation, intentional
infliction of emotional harm and prima facie tort.
The Motion for Summary Judgment
Defendants move for summary judgment dismissing all of Plaintiffs claims. The tortious
interference claim is alleged to be barred because Plaintiff can show neither that LDI ever
intended to offer him a position, nor that TBS engaged in any wrongful conduct. TBS seeks
summary judgment as to the defamation claim on the ground that Plaintiff cannot show that a
defamatory statement was made on behalf ofTBS and Plaintiff cannot, in any event, show
special damages. TBS states that even if Ficarra made the alleged comments regarding an
investigation of Garrison, such comments were true and therefore not defamatory. It is further
noted that any comment made by Ficarra cannot, in any event, be attributed to TBS as they were
made outside of the scope of Ficarra's duties.
Both the intentional infliction of emotional harm claim and the claim of prima facie tort
are sought to be dismissed on the ground that the conduct alleged in support of these claims do
not differ from that alleged in support of Plaintiff's other claims. Both claims are further sought
to be dismissed on the ground that the conduct alleged does not rise to the level required to
sustain the claims. In opposition to the motion, Plaintiff alleges that material questions of fact
preclude the entry of summary judgment as to all claims. After discussing the standards to apply
and the elements of the causes of action alleged, the court will tum to the merits of the motion.
Standard for Summary Judgment
The party moving for summary judgment has the burden of establishing that there is no
genuine issue of material fact in dispute, and that the moving party is entitled to judgment as a
matter oflaw. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby. Inc., 477 U.S. 242, 256
(1986); Ford v. Revnolds, 316 F.3d 351,354 (2d Cir. 2003). The Court should not grant
summary judgment if there is "any evidence in the record that could reasonably support a jury's
verdict for the non-moving party." Ford, 316 F.3d at 353; Marvel Characters v. Simon, 310 F.3d
280, 285-86 (2d Cir. 2002). In addition, "the inferences to be drawn from the underlying facts ...
must be viewed in the light most favorable to the party opposing the motion." Matsushita Elec.
Indus. Co .. Ltd. v. Zenith Radio Com., 475 U.S. 574, 587-88 (1986).
Once the moving party discharges its burden of proof under Rule 56©, the party opposing
summary judgment has the burden of coming forward with "specific facts showing that there is a
genuine issue for trial." Matsushita, 475 U.S. at 586. A party opposing summary judgment may
not rest upon mere allegation or denials of his pleading." Anderson v. Libertv Lobby. Inc., 477
U.S. at 256. "The mere existence of some alleged factual dispute between the parties" alone will
not defeat a properly supported motion for summary judgment. Id. at 24 7-48 (emphasis in
original). Enough evidence must favor the non-moving party's case such that a jury could return
a verdict in its favor. Anderson, 477 U.S. at 248.
Plaintiffs Causes of Action: Legal Principles
Tortious Interference With Prospective Business Relationship
The elements of a cause of action for tortious interference with prospective economic
advantage are: (I) existence of a profitable business relationship; (2) the tortfeasor's interference
with that relationship; (3) the tortfeasor's use of dishonest, unfair, improper, or wrongful means;
and (4) damage to the business relationship. Goldhirsh Group. Inc. v. Alpert, 107 F.3d 105,
108-09 (2d Cir.l997); Five Star Dev. Resort Communities. LLC v. iStar RC Paradise Valley
LLC, 2010 WL 2697137 *4 (S.D.N.Y. 2010); P. Kaufinann. Inc. v. Americraft Fabrics. Inc., 198
F.Supp.2d 466,472 (S.D.N.Y. 2002); Waste Services. Inc. v. Jamaica Ash and Rubbish Removal
Co., 691 N.Y.S.2d 150 (2d Dep't. 1990; Fonar Com. v. Magnetic Resonance Plus. Inc., 957
F.Supp. 477, 482 (S.D.N.Y.l997). To sustain such a cause of action a plaintiff must demonstrate
that the interference was accomplished by "wrongful means." Waste Services. 691 N.Y.S.2d 150,
151 (2d Dep't. 1999) (cause of action for tortious interference with prospective contractual
relations requires showing of "malice or wrongful conduct"); Snyder v. Sony Music
Entertainment. Inc., 684 N. Y.S.2d 235, 239 (I" Dept. 1999). "Wrongful means" includes
physical violence, fraud, misrepresentation, civil suits, criminal prosecutions and economic
pressure. Id. A showing of "simple persuasion" is insufficient. Scutti Entems. v. Park Place
Entertainment Com., 322 F.3d 211, 216 (2d Cir.2003).
Under New York law, establishing a claim for defamation requires a showing: "(I) that
defendants made a false defamatory statement of fact; (2) that the statement was published to a
third party; (3) that the statement concerned the plaintiff; (4) that the defendant was responsible
for making the statement; and (5) that the statement was slander per se or caused special
damages." Baez v. JetBlue Airways, 745 F.Supp.2d 214,225 (E.D.N.Y.2010); ~Albert v.
Loksen, 239 F.3d 256,265-66 (2d Cir.2001). Defamation ru;r se includes statements that "tend to
injure another in his or her trade, business, or profession." Albert, 239 F.3d at 271.
An employer is liable for the defamatory conduct of an employee under a respondeat
superior theory only if the employee, in committing the act complained of, was acting within the
scope of his employment. Perks v. Town of Huntington, 251 F.Supp.2d 1143, 1166 (E.D.N.Y.
2003); see also Sellify Inc. v. Amazon.com. Inc., 2010 WL 4455830 *5 (S.D.N.Y. 2010) (agent
responsible for defamation only if speaker was acting within scope of agency). When
determining whether an employee acts within the scope of his employment, the court considers:
(1) whether the employee's act fell within the discretion and control of the employer;
(2) whether the employee acted under the express or implied authority of the employer;
(3) whether the employee's act was in furtherance of the employer's interests;
(4) whether the employee's acts were in the "discharge of duty' to the employer;
(5) whether the act was in execution of the employer's orders or part of the work assigned
by the employer; and,
(6) whether the acts were 'so closely connected' with what the employee was hired to do,
and "so fairly and reasonably incidental to it, that they may be regarded as methods, even
though quite improper ones, of carrying out the objectives of employment.
Perks, 251 F. Supp.2d at 1166
Intentional Infliction of Emotional Distress
To establish a claim for intentional infliction of emotional distress under New York law,
a plaintiff must show: "(I) 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." Davison v. Goodwill Industries of Greater New York and Northern New Jersey. Inc.,
2012 WL 1067955 *4 (E.D.N.Y. 2012) (citations omitted). The conduct forming the basis of the
claim must 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."
Cruz v. Marchetto, 2012 WL 4513484 *5 (S.D.N.Y. 2012) (citations omitted). Generally,
defamatory statements are not considered so extreme as to constitute the "extreme and
outrageous" conduct required to support such a claim. Id., quoting, Carlson v. Geneva City Sch.
Dist., 679 F. Supp.2d 355, 372 (W.D.N.Y.2010); see House v. Wackenhut Services. Inc., 2011
WL 6326100 *5 (S.D.N.Y. 2011). Indeed, even false statements as to criminal conduct have been
held to be insufficient to state a claim. See Carlson, 679 F. Supp.2d at 372-73.
Prima Facie Tort
New York recognizes a cause of action in prima facie tort pursuant to the principle that
unjustified intentionally inflicted harm is actionable. Curiano v Suozzi, 480 N. Y.S.2d 466, 469
(1984). A cause of action of prima facie tort consists of four elements: "(I) intentional infliction
of harm, (2) causing special damages, (3) without excuse or justification, (4) by an act or series
of acts that would otherwise be lawful." Id. Where plaintiff pleads a traditional tort, there is no
cause of action for prima facie tort. Id. ("[o]nee a traditional tort is established the cause of
action for prima facie tort disappears').
Disposition of the Motion
Tortious Interference With Prospective Business Relationship
As an initial matter, the court holds that there is no question but that LDI never reached
the decision to hire Plaintiff. Even assuming that this decision was influenced by the perception
that TBS might seek to enforce a restrictive covenant, such conduct does not reach the level of
"wrongful"conduct necessary to state a claim for tortious interference of a prospective business
relationship. This is true even if the Candle Agreement gave TBS no right of enforcement, and
the court makes no findings as to that issue. The expression of an intent to enforce a non-compete
agreement does not amount to wrongful tortious conduct sufficient to sustain Plaintiffs claim.
Accordingly, the court grants Defendants' motion for summary judgment dismissing the claim of
tortious interference with a prospective business relationship.
The statements forming the basis of Plaintiffs defamation claim are those allegedly made
by Ficarra to Carballeira and White. While Ficarra denies making any such statement, Plaintiff
comes forward with direct testimony from Carballeira as to the alleged Ficarra statement. As to
any statement made to White, there is no direct testimony from White as to any statement made,
and indeed, White does not remember Ficarra making any such statement. Instead, with respect
to White, there is nothing before the court except for Garrison's statement that White told him
that Ficarra told White about the investigation.
First, the court holds that Garrison's statement as to what While told him he heard from
Ficarra is hearsay, and therefore does not constitute evidence in admissible form sufficient to be
considered in the context of this motion. The court therefore considers only whether the alleged
statement by Ficarra to Carballeira is sufficient to survive Defendants' summary judgment
motion as to any claim for defamation.
Considering the elements of a defamation cause of action as set forth above, the court
holds that there are at least questions of fact as to whether a false statement of fact concerning the
Plaintiff was made. While it may be true that Plaintiff was under some investigation concerning
his expense account, it is not clear that there was an investigation as to criminal activity. The
court further holds that an issue of fact exists as to whether the statement allegedly made by
Ficarra can be considered as m se defamatory, and therefore not requiring a showing of special
damages. As to this element, it is at least arguable that the Ficarra statement was one that might
"tend to injure" Plaintiff in his business or profession.
Even assuming, however, the existence of questions of fact as to the issues above,
summary judgment is warranted. That is because Plaintiff creates no issue of fact as to whether
TBS can be held responsible for Ficarra's alleged statement to Carballeira. The court holds he
has not. Plaintiff concedes as he must, that TBS can be responsible for the Ficarra statement (if
made) pursuant only to a theory of respondeat superior. Such liability can be imposed only if
Ficarra was acting within the scope of his employment at the time the statement was made. Here,
there is no question but that Ficarra was a service technician whose responsibility was the
servicing of TBS office equipment. While he may have engaged in idle chatter with customers,
he did not speak for the company on personnel matters. Considering the factors set forth above
with respect to determining the "scope of employment" issue, the court notes that Ficarra's
conversations with customers did not fall within the discretion and control of TBS, he did not
speak with the authority of TBS as to non-service related matters, it was not within the interests
ofTBS for Ficarra to make comments about internal personnel matters, and speaking as to such
matters certainly did not fall within the job Ficarra was hired to do. In short, while it might be
foreseeable that Ficarra would make polite conversation while servicing office equipment, it was
neither his job nor his responsibility to discuss internal TBS personnel investigations with TBS
customers. Therefore, TBS cannot be held liable for any defamatory statements alleged to have
been made by Ficarra. Accordingly, Defendants are entitled to the entry of summary judgment as
to Plaintiff's claim for defamation. Accord Cruz v. Marchetta, 2012 WL 4513484 *7 (S.D.N.Y.
20 12) (defamation claim based upon respondeat superior dismissed where statements made by
employee did not fall within employee's job description or the business of his employer).
Intentional Infliction of Emotional Distress
According to Plaintiff, his claim for intentional infliction of emotional harm is not based
only on his termination. Instead, Plaintiff alleges that his claim is supported by the way in which
he was treated prior to his dismissal. Specifically, Plaintiff makes much of certain facts preceding
his interview for the Sales VPINY position. Plaintiff states that he was kept in the dark as to the
position. He states further that he was made to travel in inclement weather to interview for the
job, even though the position was destined to be given to a corporate insider. Additionally,
Plaintiff relies on the facts recited above to support his claim of intentional infliction of
emotional distress. Even assuming the truth of these facts, Plaintiff's allegations do not rise to the
level necessary to support his claim. Such facts are not, when viewed in any light, the type of
outrageous conduct necessary to state a claim. The claim for intentional infliction of emotional
distress is therefore dismissed.
Prima Facie Tort
Plaintiff's claim for prima facie tort is nothing more than a restatement of the same facts
set forth above, including those alleged to support the claim for intentional infliction of
emotional harm. Just as Plaintiff fails to set forth wrongful intentional conduct in support of his
other claims, the court holds that Plaintiff fails to set forth facts sufficient to state a claim for
prima facie tort.
For the foregoing reasons, the court grants Defendants' motion for summary judgment in
its entirety. The Clerk of the Court is directed to terminate the motion appearing at docket entry
number 32. Jury selection as to the still pending counterclaims for breach of contract,
misappropriation of trade secrets, tortious interference with business relations, breach of duty of
loyalty, and unfair competition will be held on the previously scheduled date of June 10, 2013,
with trial to follow.
Dated: Central Islip, New York
December 3, 2012
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