Plaintiff, a supervisor for American Telephone & Telegraph Company ("A T & T"), is suing for compensatory and punitive damages resulting from his dismissal. The complaint consists of one cause of action, based on three theories: breach of contract, prima facie tort, and abusive discharge. The allegations are that A T & T dismissed plaintiff because plaintiff held certain political beliefs and associations. Plaintiff contends that a dismissal for this reason violated his employment contract with A T & T, was malicious and without just cause.
Defendant A T & T moves respectively, pursuant to CPLR 3211 (subd [a], pars 5, 7) and CPLR 3212, for an order dismissing the complaint on the grounds that (1) it fails to state a cause of action, (2) the cause of action alleged may not be maintained by reason of the Statute of Frauds, or, alternatively, (3) defendant is entitled to summary judgment.
I. MOTION PURSUANT TO CPLR 3211 (SUBD [A], PAR 7) TO DISMISS THE COMPLAINT
(A) BREACH OF CONTRACT OF EMPLOYMENT
Plaintiff alleges that the term of his oral employment contract was to run until he retired or resigned or until defendant terminated his employment for certain reasons. Plaintiff relies on A T & T's "Code of Conduct", issued as a guide to its employees of its regulations, as establishing the basis of this contract, and, also, the only grounds upon which his employment could be terminated. No case is cited in support of this claim that the company manual constitutes a contract of employment for a definite term. The Supreme Court of Kansas, when confronted by a similar claim, held
Since plaintiff's contract is not for a specific term, it is a contract terminable at will and may be terminated by either party at any time for any reason. (Chase v United Hospital, 60 A.D.2d 558; Walford v British Caledonian Airways, 52 A.D.2d 922; Cartwright v Golub Corp., 51 A.D.2d 407; Parker v Borock, 5 N.Y.2d 156; Watson v Gugino, 204 N.Y. 535.) There is no cause of action for breach of contract based upon a contract terminable at will. (Parker v Borock, supra; Walford v British Caledonian Airways, supra.)
(B) PRIMA FACIE TORT
A cause of action for prima facie tort arises upon the intentional infliction of harm without an excuse or justification that is legally recognizable as such. (Advance Music Corp. v American Tobacco Co., 296 N.Y. 79; Aikens v Wisconsin, 195 U.S. 194.) The pleadings must demonstrate an exclusive malicious motivation for the acts of defendant. (John C. Supermarket v New York Prop. Ins. Underwriting Assn., 60 A.D.2d 807; Reale v International Business Machs. Corp., 34 A.D.2d 936, affd 28 N.Y.2d 912.)
A T & T's motion herein is supported by affidavits and exhibits which establish that plaintiff's employment was terminated after he was arrested and charged with driving a van into three police officers during a political demonstration in which he was a participant. A T & T claims to have dismissed him after this conduct due to its concern for its business and reputation and for the safety of its customers and employees.
In support, A T & T cites the same "Code of Conduct", relied upon by plaintiff, which advises employees that they may be subject to disciplinary action, including suspension or dismissal, if they commit criminal acts against the general public or their property.
Finally, on October 12, 1976, he was notified that his employment was terminated. In the interim, defendant's investigators had interviewed the police officers involved in the incident with the plaintiff.
While not res judicata for the purposes of this motion, the court notes the following statement of the district director of the Equal Employment Opportunity Commission in the determination denying "reasonable cause" on plaintiff's complaint, pursuant to section 701 of title VII of the Civil Rights Act of 1964. (US Code, tit 42, § 2000e.) "It is undisputed that Respondent [defendant herein] suspended Charging Party [plaintiff herein] as a result of criminal charges filed against him by the New York City Police Department on May 1, 1976. It is also undisputed that Charging Party was dismissed as a result of an investigation of those charges, conducted by Respondent."
The allegations of malice in the complaint are conclusory and are not sufficient to establish a cause of action. (Reale v International Business Machs. Corp., supra.) Plaintiff, in opposition to the motion, has submitted his affidavit, an affidavit of his attorney (Mogulescu) in the prior criminal proceeding and the transcript of a taped conversation between Mogulescu and plaintiff's former superior at A T & T as evidence of malice. Even if this material were to constitute a sufficient evidentiary showing of malice, plaintiff's cause of action in prima facie tort must fail. Assuming, arguendo, that part of defendant's motivation was malicious, plaintiff has failed to establish that the defendant did not act for legitimate purposes or for business considerations. Thus, he has failed to demonstrate the required elements for prima facie tort. (TIA, Inc. v Ruder & Finn, 42 N.Y.2d 454; Reale v International Business Machs. Corp., supra.)
II. MOTION PURSUANT TO CPLR 3212 FOR SUMMARY JUDGMENT
(A) ABUSIVE DISCHARGE
The last theory upon which plaintiff seeks relief is the doctrine of abusive discharge. Although it does not appear that this doctrine has been recognized in this State, it is appropriate, on a motion of this nature, to examine the elements of the cause of action to determine whether the complaint alleges sufficient facts upon which relief might be granted at trial. Since plaintiff is proceeding on a cause of action not presently recognized in this State, he bears a heavy burden of demonstrating that this new cause of action should be adopted.
The doctrine of abusive discharge, where it has been advocated in law review articles or adopted, limits the right of an employer to discharge an employee at will. This doctrine is implied by operation of law as an additional condition of the contract similar to the restrictions imposed by the equal employment opportunity provisions of the Civil Rights Act of 1964 (US Code, tit 42, § 2000e). (See, generally, Note, A Common Law Action for the Abusively Discharged Employee, 26 Hastings LJ 1435; Sventko v Kroger Co., 69 Mich.App. 644.) Under this theory the interest of the employer in the exercise of his unfettered right to terminate an employee under a contract at will is balanced against the interest of the community in upholding its laws and public policy. (Nees v Hocks, 272 Or. 210; Frampton v Central Ind. Gas Co., 260 Ind. 249.)
At the threshold, the doctrine of abusive discharge places upon the plaintiff the burden of persuading this court that (1) there is a public policy of this State that (2) was violated by the defendant. Plaintiff herein has not sufficiently demonstrated that public policy, derived from or bottomed on New York constitutional, statutory or decisional law, exists that would restrict the right of a private employer to discharge an employee at will due to the employee's political beliefs, activities and associations.
This is not to say that such public policy does not exist; it merely is to say that plaintiff herein has not sustained his burden of persuasion. While this court is not averse to recognizing new causes of action or defenses, where clearly warranted, (Parkwood Realty Co. v Marcano, 77 Misc.2d 690) such recognition should only be given upon a substantial showing which has not been made here.