     14-3861
     Langenkamp v. Olson

                           UNITED STATES COURT OF APPEALS
                               FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Thurgood Marshall United
 3       States Courthouse, 40 Foley Square, in the City of New York,
 4       on the 15th day of October, two thousand fifteen.
 5
 6       PRESENT: JON O. NEWMAN,
 7                JOHN M. WALKER, JR.,
 8                DENNIS JACOBS,
 9                              Circuit Judges.
10
11       - - - - - - - - - - - - - - - - - - - -X
12       LUCINDA LANGENKAMP,
13                Plaintiff-Appellant,
14
15                    -v.-                                               14-3861
16
17       TOM OLSON, LANCE IRVING, NEW YORK
18       UNIVERSITY, TERRY FULMER,
19                Defendants-Appellees.
20       - - - - - - - - - - - - - - - - - - - -X
21
22       FOR APPELLANT:                        PETER G. EIKENBERRY, New York,
23                                             New York.
24
25       FOR APPELLEES:                        MERCEDES COLWIN (Kuuku Minnah-
26                                             Donkoh, on the brief), Gordon &
27                                             Rees, LLP, New York, New York.
28

                                                  1
 1        Appeal from a judgment of the United States District
 2   Court for the Southern District of New York (Hellerstein,
 3   J.).
 4
 5        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
 6   AND DECREED that the judgment of the district court be
 7   AFFIRMED IN PART and VACATED IN PART, and that the case be
 8   REMANDED for further proceedings consistent with this order.
 9
10        Lucinda Langenkamp appeals from the judgment of the
11   United States District Court for the Southern District of
12   New York (Hellerstein, J.), dismissing her complaint against
13   her employer and related persons. We assume the parties’
14   familiarity with the underlying facts, the procedural
15   history, and the issues presented for review.
16
17        1. Langenkamp’s breach-of-contract claim against New
18   York University (“NYU”) was dismissed on the grounds that
19   Langenkamp (a) was an at-will employee, and that (b) she had
20   no entitlement to the protections of the NYU Faculty
21   Handbook. We agree with the former ruling, but not the
22   latter.
23
24        a. “New York has a well-established at-will employment
25   doctrine: ‘[A]bsent an agreement establishing a fixed
26   duration, an employment relationship is presumed to be a
27   hiring at will, terminable at any time by either party.’”
28   Albert v. Loksen, 239 F.3d 256, 264 (2d Cir. 2001) (quoting
29   Sabetay v. Sterling Drug, Inc., 506 N.E.2d 919, 920 (N.Y.
30   1987)).1 In resisting that presumption, Langenkamp relies
31   primarily on her offer letter (attached as an exhibit to the
32   complaint), which mentions a “12-month per year position”
33   and promises compensation at a certain “annual salary.” Ex.
34   1 to 2d Am. Compl. (“Offer Letter”). However, “[t]he mere
35   fact that the hiring is at so much a year, without a
36   specified duration, is not evidence that the hiring is for


         1
              “Jurisdiction in this case is premised on
     diversity, and the parties both present arguments based on
     New York law, the law of the forum state. It is therefore
     appropriate for this Court to apply New York law.” Merrill
     Lynch Interfunding, Inc. v. Argenti, 155 F.3d 113, 121 n.5
     (2d Cir. 1998).
                                  2
 1   such a period.” Todd v. Grandoe Corp., 302 A.D.2d 789, 790
 2   (N.Y. App. Div. 3d Dep’t 2003). Langenkamp’s termination,
 3   standing alone, did not breach the parties’ employment
 4   contract.
 5
 6        b. We agree with Langenkamp, however, that her
 7   complaint plausibly alleges a breach of certain contractual
 8   protections in the NYU Faculty Handbook.
 9
10        “Policies in a personnel manual specifying the
11   employer’s practices with respect to the employment
12   relationship, including the procedures or grounds for
13   termination, may become a part of the employment contract.”
14   Baron v. Port Auth. of N.Y. & N.J., 271 F.3d 81, 85 (2d Cir.
15   2001). “To establish that such policies are a part of the
16   employment contract, an employee alleging a breach of
17   implied contract must prove that (1) an express written
18   policy limiting the employer’s right of discharge exists,
19   (2) the employer (or one of its authorized representatives)
20   made the employee aware of this policy, and (3) the employee
21   detrimentally relied on the policy in accepting or
22   continuing employment.” Id.
23
24        At the same time, “[r]outinely issued employee manuals,
25   handbooks and policy statements should not lightly be
26   converted into binding employment agreements.” Lobosco v.
27   N.Y. Tel. Co./NYNEX,751 N.E.2d 462, 465 (N.Y. 2001).
28   Accordingly, the “mere existence of a written policy . . .
29   does not limit an employer’s right to discharge an at-will
30   employee or give rise to a legally enforceable claim.” De
31   Petris v. Union Settlement Ass’n, Inc., 657 N.E.2d 269, 271
32   (N.Y. 1995).
33
34        NYU’s offer of employment confirms that the provisions
35   of the NYU Faculty Handbook were contractual. See Offer
36   Letter (“In accepting this offer, you agree to abide by all
37   NYU policies in effect from time to time, including but not
38   limited to the Faculty Handbook . . . .”). And that Faculty
39   Handbook specifies procedures that NYU must follow before
40   terminating a faculty member (including, for example, a
41   disciplinary hearing, and an opportunity to appeal any
42   sanction). See 2d Am. Compl. ¶ 37. Lankenkamp alleges (and
43   NYU hardly disputes) that none of these procedures were
44   followed before her termination. Id. ¶ 38.

                                  3
 1        NYU argues that Langenkamp never “detrimentally relied”
 2   on the policies in the Faculty Handbook “in accepting or
 3   continuing employment,” as is required under New York law to
 4   state a claim for breach of an implied contract in an
 5   employment handbook. Baron, 271 F.3d at 85. But assuming
 6   reliance is required, Langenkamp alleges that she suffered
 7   damages, among other reasons, as a result of her signing a
 8   one-year lease for an apartment in New York, now “for which
 9   she has no need.” 2d Am. Compl. ¶ 39(d)(iv); see also id.
10   ¶ 32 (alleging that she resigned from her prior position to
11   accept the job at NYU “[i]n reliance upon the offer, her
12   acceptance, and the affirmation of appointment to a non-
13   tenured faculty position by NYU”).
14
15        Accordingly, accepting the factual allegations of the
16   complaint as true, and drawing all reasonable inferences in
17   Langenkamp’s favor, her complaint should have survived NYU’s
18   motion to dismiss; she alleges much more than the “mere
19   existence of a written policy,” De Petris, 657 N.E.2d at
20   271, in an employer handbook. We vacate that portion of the
21   judgment that dismissed the breach-of-contract claim and
22   remand for further proceedings.2
23
24        2. As to the defamation claims, the district court
25   correctly concluded that each was meritless (against
26   defendants-appellees Fulmer and Irving at the motion-to-
27   dismiss stage; and against defendant-appellee Olson at
28   summary judgment).
29

         2
              For the first time at oral argument, counsel for
     NYU made several new arguments that did not appear in the
     briefs (e.g., that the disciplinary procedures in the
     Faculty Handbook do not apply to non-tenured faculty,
     but see 2d Am. Compl. ¶ 37, and that Langenkamp was entitled
     to no process because she was not disciplined for violation
     of a “rule or regulation” of NYU). These arguments were
     raised too late, so we do not consider them. See, e.g.,
     Norton v. Sam’s Club, 145 F.3d 114, 117 (2d Cir. 1998). We
     leave it to the sound discretion of the district court to
     consider any additional arguments for dismissal offered by
     NYU on remand (including, for example, that Langenkamp
     suffered no compensable damages for any breach of contract).


                                  4
 1        As Langenkamp concedes on appeal, all of the allegedly
 2   defamatory statements were protected by New York’s qualified
 3   privilege for “communication[s] made by one person to
 4   another upon a subject in which both have an interest.”
 5   Stillman v. Ford, 238 N.E.2d 304, 306 (N.Y. 1968); see also
 6   Albert, 239 F.3d at 272 (“Communications by supervisors or
 7   co-workers made in connection with the evaluation of an
 8   employee’s performance, including allegations of employee
 9   misconduct and communications regarding the reasons for an
10   employee's discharge, fall within the privilege.”). But
11   “[a] defendant forfeits this qualified privilege by making a
12   false, defamatory statement with ‘malice’ of either the
13   common-law or constitutional variety.” Albert, 239 F.3d at
14   272.
15
16        Even construing the record evidence in Langenkamp’s
17   favor, no reasonable jury could find that Olson acted with
18   malice in denying that he signed Langkenkamp’s credit
19   application. Other than Langenkamp’s own self-serving and
20   ever-shifting testimony, all of the evidence suggests that
21   Olson’s words were not only uttered in good faith, but were
22   actually true. Accordingly, there is no genuine factual
23   dispute to be resolved by a jury.
24
25        Similarly, Langkenkamp did not plausibly allege that
26   Fulmer or Irving acted with malice in repeating any
27   defamatory statement made by Olson. Fulmer and Irving were
28   entitled to rely on the repeated (and plausible) assurances
29   from Olson that he did not sign Langenkamp’s credit card
30   application.
31
32        In the absence of malice, Langenkamp’s defamation
33   claims fail.
34
35                             *   *   *
36
37         We acknowledge that plaintiff’s surviving contract
38   claims are narrow: that plaintiff did not receive the
39   hearing to which she was entitled before she was terminated.
40   Although the claim is adequately alleged, we express no view
41   as to whether she ultimately may be able to prove that she
42   “detrimentally relied on the policy [manual] in accepting or
43   continuing employment,” Baron, 271 F.3d at 85, or that the
44   outcome of NYU’s decision to terminate her would have been

                                   5
 1   any different had the hearing been afforded to her in the
 2   first instance. As a result, the relief that the district
 3   court is able to grant, if any, may be narrow as well.
 4
 5        For the foregoing reasons, we hereby AFFIRM IN PART and
 6   VACATE IN PART the judgment of the district court, and we
 7   REMAND for further proceedings consistent with this order.
 8
 9
10
11                              FOR THE COURT:
12                              CATHERINE O’HAGAN WOLFE, CLERK
13




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