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A wrongful termination action initiated by publicist Jeanine Pepler, alleging among other things that publisher Rugged Land fired her because thyroid-cancer surgery left her voice “raspy” and “haggard,” will go forward following a Manhattan judge’s denial in part of the defense’s motion to dismiss. Four of six causes of action survived, including claims for libel and wrongful termination. On Dec. 7, 2004, Pepler received an e-mail from co-defendant Webster Stone, a managing member of Rugged Land, that stated, “You have done a remarkable job … Overall your commitment and performance have been terrific.” Pepler would receive $3,500, “the highest bonus paid out here.” That same afternoon, Pepler learned she had thyroid cancer. She underwent an emergency thyroidectomy, which left her left vocal chord completely paralyzed. Her voice became “raspy” and “throaty,” according to her complaint, and difficult to hear. Following a three-week vacation that had already been scheduled, Pepler returned to work on Jan. 10, 2005. The following morning, she met with Stone and one of the company’s clients, actor Matthew Modine. Stone appeared to be “horrified” by Pepler’s voice. Two days later, he called Pepler into his office, told her that she appeared unhappy with her job and fired her. Subsequently, Stone told the New York Post that he fired Pepler, who has been romantically linked to the writer Jay McInerney, “because she has a lousy work ethic” and had been “the highest paid person in the company who did the least amount of work.” Pepler filed suit against Rugged Land, Stone and managing member Shawn Coyne, alleging among other things libel and wrongful termination. The defendants moved to dismiss. Supreme Court Justice Barbara R. Kapnick denied the motion in part, allowing four of the causes of action to go forward. The defense claimed Pepler failed to make out a prima facie case of discriminatory discharge, “inasmuch as it is undisputed that she neither had, nor was perceived to have, cancer at the time that she was terminated,” according to the decision, Pepler v. Rugged Land, 102519/05. That defense failed, Justice Kapnick ruled, because it focused on the wrong “causal nexus.” “What must be considered as of the time of termination is not whether plaintiff is disabled but whether plaintiff can do the job,” the judge wrote. “Accordingly, the fact that plaintiff did not have cancer at the time that she was terminated is not a reason to dismiss her claims of discrimination.” OPINIONS BASED ON FACTS The defendants also moved to dismiss the cause of action for libel, arguing among other things that Stone’s statements to the Post constituted an ambiguous and indefinite statement of opinion. Again, the court disagreed. “This Court finds that ‘[t]he challenged statements, although expressing opinions, are actionable because an average reader rationally could have construed them to imply that the opinions being expressed were based on detrimental facts that were known to the speaker … but which facts were not disclosed to the audience,’” Kapnick held, quoting People of the State of New York v. Grasso, 21 AD 3d 851. However, the judge granted the defense’s motion to dismiss Pepler’s wrongful-termination claim against Coyne, as well as her cause of action for intentional infliction of emotional distress. Solo practitioners Steven Isser and Mark Moody represented Pepler. Isser said he considered the decision a victory, but added that his client may appeal the dismissal of the individual claim against Coyne. The defendants were represented by David J. Katz of Schlam, Stone & Dolan, which was recently substituted in as counsel. Katz called the complaint “baseless.” The reasons that the defendants fired Pepler so soon after praising her “will all come out in the course of us filing our answer and in discovery,” Katz added.

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