In the

United States Court of Appeals

For the Seventh Circuit

____________

No. 07-3913

MARSHA BARTEL,

Plaintiff-Appellant,

v.

NBC UNIVERSAL, INC.,

Defendant-Appellee.

____________

Appeal from the United States District Court

for the Northern District of Illinois, Eastern Division.

No. 07 C 2925—John W. Darrah, Judge.

____________

ARGUED MAY 28, 2008—DECIDED SEPTEMBER 11, 2008

____________

Before EASTERBROOK, Chief Judge, and RIPPLE and

WOOD, Circuit Judges.

WOOD, Circuit Judge. Marsha Bartel lost her job at NBC

Universal, Inc., after she complained that the television

show for which she was responsible was not adhering to

NBC’s internal ethical standards. NBC first turned a deaf

ear to her complaints; Bartel then refused to continue

acting as producer for the show; and finally Bartel found

herself out the door. She sued NBC in federal court,
2 No. 07-3913

relying on diversity jurisdiction, for breach of contract. The

district court dismissed the complaint for failure to state

a claim, and we affirm.

I

The account of the facts that follows accepts Bartel’s

account as true, since this is an appeal from a dismissal

under FED. R. CIV. P. 12(b)(6). Moranski v. GMC, 433 F.3d

537, 539 (7th Cir. 2005). If she has not stated a claim even

under this favorable approach, then it was correct to

terminate the litigation at its outset.

Bartel worked as a journalist for NBC Universal, Inc., for

21 years. She won awards for her work and was regarded

as one of the best investigative journalists on the NBC

news team. In August 2006, NBC assigned Bartel to be

the sole producer of a segment entitled “To Catch a

Predator,” which was part of NBC’s Dateline television

program. NBC worked with an organization called

“Perverted Justice,” which uses agents pretending to be

minors to lure adult men into chat rooms. The parties

make a date to meet, and the men are led to believe they

are arranging a sexual assignation with a minor. When

the man arrives at the meeting place, he is arrested, while

the confrontation scene is filmed. The sequence is later

televised on the Predator segment of Dateline.

As a journalist and producer for NBC, one of Bartel’s

main responsibilities was to ensure compliance with the

ethical standards of journalism and NBC’s internal guidelines. Bartel found numerous aspects of the Predator
No. 07-3913 3

segment production to be in violation of these standards

and guidelines. She believed, for example, that NBC was

providing compensation directly or indirectly to the law

enforcement officers participating in the stings. She

thought it wrong that “Perverted Justice” representatives

did not provide NBC with compete transcripts of their

conversations with the targets, and that they did not

identify all of their volunteers to NBC. She also objected that Dateline and Perverted Justice were staging the

arrests in a way that maximized the humiliation of the

target. Bartel informed her superiors at NBC of these

problems, but they took no steps to cure them. Bartel then

told her supervisors that she could not produce the

segment. On November 17, 2006, NBC informed Bartel

that her contract would be terminated effective December 25, 2006. NBC asserted that this action was part of a

program of lay-offs that it was making because of general

economic conditions.

Bartel did not believe this explanation, and so she

sued NBC for breach of contract. She asserted that the

termination was premature in light of the protection her

contract afforded her. In addition, she charged that the

reason given for her termination was pretextual; that the

real reason was her refusal to produce a segment that

violated ethical and company standards; and that her

contract included an implicit restriction against firing her

for this kind of reason, thus rendering NBC’s action a

breach of contract.

NBC moved to dismiss the complaint for failure to state

a claim. It argued that the contract Bartel attached to the
4 No. 07-3913

complaint was unambiguous and allowed it to end Bartel’s

employment when and why it did. The contract, NBC went

on, contained no restrictions on allowable reasons for

dismissal. NBC also argued that New York law, which

both parties agree governs this case, does not allow courts

to recognize the implicit restriction for which Bartel was

arguing. The district court granted NBC’s motion to

dismiss, and Bartel appeals.

II

We give de novo review to a district court’s dismissal

under Rule 12(b)(6) for failure to state a claim upon

which relief can be granted. Moranski, 433 F.3d at 539.

The question whether the language of a contract is ambiguous is one of law, and so we also review that

de novo. Palmieri v. Allstate Ins. Co., 445 F.3d 179, 187 (2d

Cir. 2006).

Bartel first argues that NBC was not permitted under

the contract to end her employment when it did. In support of this position, she sought to introduce extrinsic

evidence about the parties’ understanding of the contractual arrangements, but the district court held that the

language of the contract was unambiguous and therefore denied her request.

The provision that directly addresses the time at which

NBC was entitled to terminate Bartel’s employment is

Paragraph 4(a) of the Letter Agreement between NBC and

Bartel:
No. 07-3913 5

The term of this Agreement shall commence on December 26, 2005 and shall continue, subject to suspension,

extension or termination as hereinafter provided, for

a period of two hundred and eight (208) consecutive

weeks thereafter. The term hereof shall be divided

into four (4) consecutive cycles of fifty-two (52) weeks

each. NBC shall have the right to terminate this Agreement effective at the end of any cycle prior to the

last by giving Artist written notice not less than

twenty-eight (28) days prior to the end of any such

cycle. This Agreement shall automatically terminate

at the end of the last cycle without notice, unless

the parties agree otherwise.

The Letter Agreement was executed on March 31, 2006, but

was retroactively effective as of December 26, 2005.

Bartel argues that “term” and “cycle” are terms of art

that are not defined in the contract. But this is plainly not

so: the two words are defined right in the paragraph we

have just quoted. The “term of this Agreement” is 208

consecutive weeks, with a specified start-point and endpoint. That period is divided into four consecutive, equal

52-week sub-intervals, each of which is referred to as a

cycle. A reasonable person reading this paragraph

would not be confused about the meaning of the words

“term” or “cycle” as they are used in the agreement. A

definition does not have to read “noun X is defined

as . . . .”

Bartel buttresses her ambiguity argument by pointing to

Paragraph 5(a) of the Letter Agreement. This, she asserts,

demonstrates that Paragraph 4(a) is ambiguous because

5(a) also uses the word “term,” but in a different way:
6 No. 07-3913

In full payment for the services and/or materials

furnished by Artist and in consideration of the rights

granted by Artist to NBC and the faithful performance

of Artist’s obligations hereunder, NBC agrees to pay

Artist and Artist agrees to accept the guaranteed

annual rate of compensation below, payable bi-weekly.

The annual rate(s) of pay reflected herein may not

correspond exactly to the amount received in a calendar year. Bi-weekly compensation is calculated by

dividing annual compensation by 26.08335.

Period of Term Annual Rate of Compensation

12/26/05-06/24/07 $175,000.00

06/25/07-12/21/08 $180,000.00

12/22/08-12/20/09 $185,000.00

(Emphasis added).

This paragraph also creates no ambiguity. The word

“term” is used consistently in Paragraphs 4(a) and 5(a); it

means the 208 weeks beginning on December 26, 2005,

and ending on December 20, 2009. Paragraph 5(a) introduces the new word “Period,” which is a subdivision of

“Term” distinct and independent from the “cycle” subdivision defined in Paragraph 4(a). “Periods” refer to subintervals of the Term in which Bartel is entitled to be

paid a particular and fixed salary (provided she is still

employed). “Cycles” refer to sub-intervals of the Term

that define three discrete opportunities at which NBC can

elect to terminate Bartel’s employment before the end of

the Term. Even if Bartel may be correct that the word

“Period” in Paragraph 5(a) could have been defined more
No. 07-3913 7

precisely, that does not help her case because Paragraph

5(a) does not discuss times for termination; Paragraph 4(a)

does that, and “Period” is not used in Paragraph 4(a).

We hold that the contract is unambiguous. Because

NBC gave Bartel written notice on November 17, 2006, that

it was terminating her contract effective December 25,

2006 (the end of the first cycle), NBC gave more than the

required amount of notice. Thus, it did not breach the

contract, assuming its action did not violate any impliedin-law restrictions on reason for dismissal, the point

to which we next turn.

III

Even if NBC’s termination of Bartel’s contract was

permissible as a matter of timing, Bartel argues that NBC

nevertheless breached the agreement because of an

implicit restriction in it. Specifically, Bartel alleges that

NBC’s stated reason for firing her—lay-offs as a general

cost-saving measure—is a pretext; the real reason

was Bartel’s insistence that NBC live up to the ethical

standards recognized by the profession of journalism and

imposed by NBC’s internal guidelines. The latter reason,

she continues, is just as impermissible as something like

a racially discriminatory motive.

Until Wieder v. Skala, 80 N.Y.2d 628 (1992), the sole case

on which Bartel relies, was decided, New York declined to

recognize any judicially created exceptions to the commonlaw understanding of at-will employment. Murphy v. Am.

Home Prods. Corp., 58 N.Y.2d 293, 305 (1983), was a typical
8 No. 07-3913

case. There, the court rejected the plaintiff’s invitation to

read an implied requirement of good faith into his employment contract, even though the plaintiff’s job required

him to disclose accounting improprieties and he was

discharged for doing so. It held that “under New York law

as it now stands, absent a constitutionally impermissible

purpose, a statutory proscription, or an express limitation

in the individual contract of employment, an employer’s

right at any time to terminate an employment at will

remains unimpaired.”

Bartel does not contend that the termination of her

employment contract violated the Constitution, a

statutory proscription, or an express limitation in the

contract (putting aside the timing argument that we have

rejected). Instead, she argues that Wieder recognizes an

exception not only to the rules for employment-at-will, but

also inserts an implied term into all employment contracts. In Wieder, an attorney working as an associate at a

law firm was fired after demanding that the firm report

another associate’s misconduct to the state disciplinary

committee. The Court of Appeals of New York found that

“in any hiring of an attorney as an associate to practice

law with a firm there is implied an understanding so

fundamental to the relationship and essential to its purpose as to require no expression: that both the associate

and the firm in conducting the practice will do so in

accordance with the ethical standards of the profession.”

80 N.Y.2d at 635-36. Bartel argues that the same rule

should apply to a journalist working for a news organization such as NBC. But in Wieder itself the Court of Appeals

was careful to distinguish the situation of a lawyer from
No. 07-3913 9

that of others who might also have ethical duties, but for

whom it refused to recognize an implicit restriction on

termination. See Sabetay v. Sterling Drug, Inc., 69 N.Y.2d

329 (1987) (director of financial projects); Murphy, 58

N.Y.2d at 305 (accountant and assistant treasurer). See

Wieder, 80 N.Y.2d at 635. The Court has continued to

draw that line since Wieder: see Horn v. New York Times,

100 N.Y.2d 85 (2003) (physician employed by nonmedical

organization, where physician was seeking to enforce

patient confidentiality).

As we read Wieder, the court went to great lengths to

highlight the uniqueness of the legal profession and to

narrow its holding to that particular profession—perhaps

even to the particular disciplinary rule at issue in that case.

The opinion is riddled with limiting language, some of

which we highlight here:

[1] [Plaintiff’s] employment as a lawyer to render

professional services as an associate with a law firm

differs in several respects from the employments in

Murphy and Sabetay. . . . plaintiff’s performance of

professional services for the firm’s clients as a duly

admitted member of the Bar was at the very core and,

indeed, the only purpose of his association with

defendants. Associates are, to be sure, employees of

the firm but they remain independent officers of the

court responsible in a broader public sense for their

professional obligations.

Wieder, 80 N.Y.2d at 635 (emphasis added).

[2] It is in this distinctive relationship between a law

firm and a lawyer hired as an associate that plaintiff
10 No. 07-3913

finds the implied-in-law obligation on which he

founds his claim.

Id. at 635-36 (agreeing with plaintiff) (emphasis added).

[3] The particular rule of professional conduct implicated here (DR 1-103[A]), it must be noted, is critical to

the unique function of self-regulation belonging to the

legal profession. . . . Moreover, as plaintiff points out,

failure to comply with the reporting requirement may

result in suspension or disbarment.

Id. at 636 (citation omitted) (emphasis added).

[4] We agree with plaintiff that these unique characteristics of the legal profession in respect to this core Disciplinary Rule make the relationship of an associate to a

law firm intrinsically different from that of the financial managers to the corporate employers in Murphy

and Sabetay.

Id. at 637 (clarifying the narrowness of the Wieder holding

by noting that not every rule of professional responsibility

for lawyers is “deemed incorporated as an implied-in-law

term in every contractual relationship between or among

lawyers”) (emphasis added).

More telling even than the language in Wieder is the

language in Horn v. New York Times, supra. Postdating

Wieder by eleven years, Horn discusses that case and the

other relevant cases at length. It is the most recent pronouncement by the Court of Appeals of New York on its

view of the law. Because we are sitting in diversity, we

must rule as we think the highest court of the state
No. 07-3913 11

would rule if it were deciding the case, even if we think

that another approach would be preferable.

In declining to expand the “narrow exception to the atwill employment doctrine adopted in Wieder,” Horn

reaffirmed New York’s position that “such a significant

change in our law is best left to the Legislature.” 100

N.Y.2d at 92, 96-97 & n.4 (noting that “the Legislature

remains active in this area, just last year having enacted a

new Whistleblower Law to protect certain health care

workers”). Horn noted New York’s “strong disinclination

to alter the traditional rule of at-will employment.” Id. at

93. It then catalogued the “unique” aspects of the

legal profession that were critical to the recognition of

an exception in Wieder. Id. at 94-96. It pointed out that

the New York Legislature has delegated to the state

judiciary the task of overseeing attorney self-regulation,

and so the leave-it-to-the-Legislature argument had less

force for the situation in Wieder. Id. at 94. Recognizing

the importance of physician-patient confidentiality, the

court acknowledged that Plaintiff Horn “strikes a sympathetic, and even a seductive, chord,” but she had nonetheless “failed to plead facts that place her claim for breach

of contract within the Wieder exception to the at-will

employment rule.” Id. at 95, 96.

Horn leaves us convinced that the Court of Appeals

of New York would decline to expand Wieder to include

journalists. We therefore find no breach of contract on

NBC’s part, even assuming that Bartel can prove that the

reason NBC offered for the lay-off was pretextual.

* * *
12 No. 07-3913

We AFFIRM the judgment of the district court.

9-11-08