DiFolco v. MSNBC Cable L.L.C.

831 F.Supp.2d 634

Claudia DiFOLCO, Plaintiff,

v.MSNBC CABLE L.L.C., Rick Kaplan, and Scott Leon, Defendants.

No. 06 Civ. 4728 (LAP).

United States District Court, S.D. New York.

Nov. 9, 2011.

James Ryan Hubbard, Liddle & Robinson, LLP, Kenneth P. Thompson, Lawrence Michael Pearson, Thompson Wigdor & Gilly LLP, New York, NY, for Plaintiff.

Hilary Lane, Julie Rikelman, NBC Universal, New York, NY, for Defendants.

MEMORANDUM AND ORDER

LORETTA A. PRESKA, Chief Judge:

Plaintiff Claudia DiFolco (“Ms. DiFolco” or “Plaintiff”), a former correspondent, reporter, and television host for MSNBC Cable L.L.C. (“MSNBC”), filed a complaint against defendants MSNBC, MSNBC's former President Rick Kaplan (“Mr. Kaplan”), and former MSNBC Executive Producer Scott Leon (“Mr. Leon”) (collectively, “Defendants”), alleging that Defendants breached an employment agreement between Plaintiff and MSNBC. Plaintiff also alleges that Defendants were responsible for publishing three alleged defamatory statements concerning Plaintiff posted on three separate websites between August 31, 2005 and September 4, 2005. Defendants contend that Plaintiff repudiated the employment agreement and that they were not responsible for making or publishing the alleged defamatory statements. Defendants now move for summary judgment as to Plaintiff's breach of contract and defamation claims pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Defendants' motion for summary judgment [dkt. no. 71] is GRANTED IN PART and DENIED IN PART.

I. BACKGROUND

The following facts are not in dispute.¹ On December 2, 2004, Plaintiff entered into a two-year employment contract (the “Contract”) with MSNBC, covering the time period from January 2005 to January 2007. (Def. 56.1 ¶ 1; Pl. 56.1 ¶ 1.) MSNBC hired Plaintiff primarily to be the Los Angeles-based correspondent for two shows, “MSNBC at the Movies” and “MSNBC Entertainment Hot List.” (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) During the summer of 2005, Plaintiff was not happy with her work at MSNBC. (Def. 56.1 ¶ 4; Pl. 56.1 ¶ 4.) At some point during the summer of 2005, Plaintiff began to think about leaving MSNBC. ( See Rikelman Decl. Ex. 1, Deposition of Claudia DiFolco (“DiFolco Dep. Tr.”) at 144:15–24.) On August 22, 2005, Plaintiff returned from a vacation in Europe. (Def. 56.1 ¶ 6.) On that same day, Plaintiff received a voice mail message from one of her producers at the time, Cassandra Brownstein,² that Plaintiff found to be condescending and that she thought accused her of missing work. (Def. 56.1 ¶ 4, 7; Pl. 56.1 ¶ 7.)

At 10:07 a.m.³ on August 23, 2005, Plaintiff sent an email (the “August 23 email”) to Mr. Kaplan that stated in part:

left a msg [sic] at your office yesterday ... i'm planning on working out of nj next Friday 9/2, so i can meet with you, at your convenience, anytime thursday. unfortunately, it really saddens me to say that after much considerable thought, it is to discuss my exit from the shows. you have been nothing but supportive and mentoring of me since the day we met and i want to make sure i do this in the least disruptive manner possible and give you ample time to replace me.

* * *

rick, i really wanted this to work and more importantly, wanted to be a part of your team for a long time to come. i'm so sorry.

(Rikelman Decl. Ex. 4 (lowercase and first ellipsis in original).) At 2:59 p.m., Mr. Kaplan wrote to Mr. Leon, “Do nothing til [sic] I say something.” (Pearson Decl. Ex. 19.) At 9:02, Mr. Kaplan responded to Plaintiff's email, “Sorry to hear this ... but I'll see you when you're here.” (Rikelman Decl. Ex. 4 (ellipsis in original).) The call logs of Plaintiff's talent agent, Ken Lindner (“Mr. Lindner”), indicate that Plaintiff spoke with Mr. Lindner several times on the afternoon of August 23, 2005. (Rikelman Decl. Ex. 5; Declaration of Ken Lindner (“Lindner Decl.”) ¶ 4.)

The morning of August 24, 2005, Plaintiff forwarded to Mr. Lindner her August 23 email to Mr. Kaplan with a cover note stating:

ken, i should have let you know about this letter earlier, but i just couldn't take it anymore. i tried so hard to fix this....

from my perspective, and others' who have worked with scott, past and present, the environment is toxic and the situation hopeless. please call me to discuss ...

(Rikelman Decl. Ex. 6 (lowercase and ellipses in original).) Later on August 24, 2005, Plaintiff sent a second email to Mr. Kaplan (the “August 24 email”) that stated in part, “[T]o be clear, i [sic] did not resign yesterday and was merely giving you significant notice of my intention so you could begin thinking about alternatives for next year. as [sic] always, count on my continued professionalism.” (Rikelman Decl. Ex. 7.)

At 12:32 p.m. on August 28, 2005, Mr. Kaplan sent an email to Mr. Leon, copying Melissa Jones, in which Mr. Kaplan stated:

Let's cut our losses NOW ... cancel her coming east ... drop her off the show immediately ... take her off payroll etc as of Friday ... after all she resigned! I don't wish to meet with her, there's no reason now ... but I will cancel with her once you all take the above actions. I don't want any on air goodbyes or anything like that ... she just immediately disappears from the shows. Melissa: call her agent and inform him ... and remember she quit ... we owe her NOTHING!!!

(Pearson Decl. Ex. 13 (ellipses in original).) At 2:48 p.m. on August 28, Mr. Kaplan responded to Plaintiff's August 24 email, stating:

My complete impression is that you have resigned ... and offered the courtesy of working out an exact out-date ... I made Scott aware of t6his [sic] ... and we feel that sooner is better since your obvious intent is to leave. Best for all to do it quickly ... I'm disappointed ... to say the least ...

(Pearson Decl. Ex. 11 (ellipses in original); Rikelman Decl. Ex. 9.)

On August 31, 2005, Plaintiff sent a final email to Mr. Kaplan (the “August 31 email”), copying Mr. Lindner, in which she identified several workplace grievances and stated in part:

Since we have barely communicated through a few short e-mails, I don't understand how you could have developed such a “complete impression.” It was my intention to give you long-term notice that I was terribly disappointed in the way I was treated and was not planning on returning for the second year of my contract.

(Rikelman Decl. Ex. 13.) Between August 23, 2005 and August 31, 2005, Plaintiff discussed her emails to Mr. Kaplan with at least nine people outside of MSNBC. (Def. 56.1 ¶ 26; Rikelman Decl. Ex. 1 at 188–91, 271–73, 281; see also Rikelman Decl. Exs. 6, 10, 12, 20.)

Following Plaintiff's emails, Mr. Kaplan directed that Plaintiff be removed from the MSNBC payroll in September 2005. (Def. 56.1 ¶ 23; Pl. 56.1 ¶ 23.) Plaintiff was subsequently placed on “suspend assignment” status by MSNBC on September 12, 2005, and was on MSNBC's employee payroll until September 16, 2005. (Pearson Decl. Ex. 14.)

On August 31, 2005, the website “Inside Cable News” reported the following:

FTV Live is reporting that Entertainment Hotlist and At The Movies host/reporter Claudia DiFolco quit MSNBC in the middle of her contract leaving Sharon Tay as the sole host of the show. FTV reports that her bio has been pulled off the website. This can't be a good omen for the future of the shows which have seen a noticeable downturn in publicity on the network recently.

(Rikelman Decl. Ex. 16; Pearson Decl. Ex. 17.) On September 1, 2005, the website “News Blues for TV News Insiders” (“News Blues”) similarly reported, “Luscious Claudia DiFolco has quit MSNBC in the middle of her contract, leaving Sharon Tay as the sole host of ‘Entertainment Hotlist’ and ‘At The Movies.’ ” (Rikelman Decl. Ex. 18; Pearson Decl. Ex. 18.) By the time of the September 1 News Blues report (the “September 1 report”), approximately 80,000 people could have viewed the August 31 Inside Cable News report (the “August 31 report”). (Def. 56.1 ¶ 27; Pl. 56.1 ¶ 27.)

On September 4, 2005, on the website TVSpy, an anonymous poster using the pen name “Jill Journalist” posted a comment entitled “Scott Leon real deal, DiFolco Defecto” that stated in part:

Claudia DiFolco[ ] is one of the new breed of journalists who believes that cleavage, over time in the make up [sic] chair and a huge desire to become a star (instead of reporting on them,) is how you pay your dues. I have heard that throughout her irrelevant career at MSNBC, she constantly ignored directions from news producers during live shots, refused to do alternate takes for editing purposes, pouted like a spoiled child and never was a team player. Even the consumate [sic] professionalism of Leon and Sharon Tay, couldn't rub off on DiFolco. She was difficult in Phoenix, difficult in Secaucus, and reporters don't change their spots!

(Rikelman Decl. Ex. 17; Pearson Decl. Ex. 15.) By the time the September 4 TVSpy posting (the “September 4 posting”) appeared, approximately 80,000 people could have viewed the August 31 and September 1 reports and been aware that Plaintiff had left MSNBC. (Def. 56.1 ¶ 28; Pl. 56.1 ¶ 28.)

Finally, on November 14, 2005, MSNBC sent Plaintiff a letter providing notice that pursuant to Paragraph 4(a) of the Contract, MSNBC was exercising its “unilateral right to terminate [the Contract] at the end of the first cycle by giving [Plaintiff] written notice not less than sixty (60) days prior to the end of such cycle.” (Rikelman Decl. Ex. 15.)

II. DISCUSSION

A. Legal Standard for Summary Judgment

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 judgment as a matter of law.” Fed.R.Civ.P. 56(c); Kwan v. Schlein, 634 F.3d 224, 228 (2d Cir.2011). The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91...