## Facts

- Claudia DiFolco, an MSNBC correspondent/host, signed a two-year employment contract on December 2, 2004, covering January 2005 to January 2007.
- In summer 2005, she complained of mistreatment and difficult working conditions.
- On August 23, 2005, DiFolco emailed MSNBC President Rick Kaplan stating she wanted to meet to discuss “my exit from the shows.”
- On August 24, 2005, she sent a follow-up email stating the prior message was “not a resignation” and that she wanted to discuss alternatives for the following year.
- Kaplan responded that he treated the August 23 email as a resignation.
- MSNBC removed DiFolco from payroll and later sent a November 14, 2005 letter purporting to terminate her employment at the end of the first contract year.
- Between August 31 and September 4, 2005, three online statements appeared on separate websites asserting, in substance, that DiFolco quit MSNBC mid-contract.
- DiFolco sued for breach of contract and defamation; on remand after appeal, defendants moved for summary judgment on both claims.

## Issues

1. Whether the summary-judgment record established, as a matter of law, that DiFolco’s August 23 email was a clear and unequivocal repudiation of her employment contract, defeating her breach-of-contract claim.
2. Whether DiFolco produced admissible evidence that defendants made, directed, authorized, or otherwise caused publication of the allegedly defamatory online statements.

## Decision

- The court granted the motion in part and denied it in part.
- Summary judgment was denied on breach of contract because a reasonable jury could differ on whether the August 23 email constituted a clear and unequivocal repudiation.
- Summary judgment was granted on defamation because DiFolco failed to provide admissible evidence linking defendants to publication of any of the online statements.

## Legal Principles

- Under New York law, anticipatory repudiation requires a clear and unequivocal manifestation of intent not to perform; ambiguous communications generally present a fact question.
- On summary judgment, the nonmovant must present specific admissible facts; conclusory assertions and speculation do not create a genuine dispute for trial.
- Defamation liability requires proof of publication to a third party attributable to the defendant, including making, directing, authorizing, or ratifying dissemination of the statement.

## Conclusion

The court held that the parties’ competing interpretations of DiFolco’s emails created a triable dispute on whether she repudiated her contract, but dismissed the defamation claims because the record did not support a finding that defendants were responsible for publishing the allegedly defamatory online reports.


DiFolco v. MSNBC Cable L.L.C., 831 F. Supp. 2d 634 (S.D.N.Y. 2011)