Torain v. Clear Channel Broadcasting, Inc. (651 F. Supp. 2d 125, 2009)

United States District Court for the Southern District of New York 2009-09-01

Citations

Full opinion text

OPINION AND ORDER

LEISURE, District Judge.

In this diversity case, plaintiff Troi To-rain (“Torain”) brings suit against Clear Channel Broadcasting, Inc. (“Clear Channel”) for breach of contract, breach of implied covenant of good faith and fair dealing, and violations of New York Labor Law. Clear Channel asserts counterclaims against Torain, alleging breach of contract and contractual indemnification. Currently pending before the Court is (i) Clear Channel’s motion for summary judgment seeking dismissal of Torain’s complaint; (ii) Clear Channel’s motion for summary judgment on its contractual indemnity claim; and (iii) Torain’s motion for summary judgment seeking dismissal of Clear Channel’s contractual indemnity claim. For the reasons set forth below, Clear Channel’s motion for summary judgment on plaintiffs complaint is GRANTED, and the parties’ motions for summary judgment on Clear Channel’s contractual indemnity claim are DENIED.

BACKGROUND

I. Torain’s Employment and Termination with Clear Channel

Torain is a radio host/personality, professionally known as “Star.” (Decl. of Troi Torain in Opp’n to Clear Channel’s Mots. For Summary Judgment, sworn to on Nov. 2, 2007, (“Torain Deck”) ¶ 1.) The parties agree that Torain was considered an edgy and provocative on-air radio personality when he was hired by Clear Channel to host his morning show “Star & Buc Wild” on Clear Channel’s radio stations. {Id. ¶ 2; Def.’s Mem. 3.) In connection with Torain’s employment with Clear Channel, on or about March 25, 2004, Torain and Clear Channel entered into a written contract (the “Employment Agreement” or the “contract”).

Pursuant to the Employment Agreement, Torain was to be employed by Clear channel from March 29, 2004 to March 28, 2007. (Employment Agreement § 3.) However, Torain’s employment with Clear Channel ended on May 10, 2006 when Clear Channel terminated Torain for his on-air statements about Raashaun Casey, his wife, Gia Casey, and their four year-old daughter. {See Todd Decl. Ex. E.) Raashaun Casey was also a radio personality, with a radio show broadcasted on another radio station opposite Torain’s program. {See Def.’s Mem. 1 n. 2; Aff. of Gia Casey in Support of Def. Clear Channel Broadcasting Inc.’s Mots. For Summary Judgment, sworn to on Sept. 27, 2007 (“Casey Aff.”) ¶¶3-5.) The Court deems it unnecessary to detail all of the comments Torain made about the Caseys during the relevant time period. It suffices to say that Torain made sexually explicit comments and racial slurs regarding Mr. and Mrs. Casey, as well as on-air comments concerning sexual relations with the Caseys’ daughter, who was four years old at the time. The parties do not dispute the substance of Torain’s comments about the Caseys and their daughter. Rather, the parties primarily dispute whether such statements rise to the level of a terminable offense under the cause provisions in the Employment Agreement. The parties also disagree as to which provisions in the Employment Agreement this Court can consider in determining whether Torain’s termination violated the Employment Agreement. While Clear Channel contends that it had grounds to terminate Torain under numerous provisions of the Employment Agreement (see Def.’s Mem. 5-6), plaintiff and plaintiffs manager, Wyatt Cheek, aver that the parties’ negotiations and pre-contract discussions make clear that many of the provisions Clear Channel now relies upon were inapplicable to on-air statements. (See Decl. of Wyatt Cheek in Opp’n to Clear Channel’s Mots, for Summary Judgment, sworn to on Nov. 2, 2007 (“Cheek Deck”) ¶¶ 7-11, 24-28; Torain Deck ¶¶6-7, 13.). Plaintiff also contends that Clear Channel did not have grounds to terminate Torain for cause based upon the precontract statements of John Hogan, Clear Channel’s CEO, to Congress as to Clear Channel’s indecency policies and procedures. (See Cheek Deck ¶¶ 10-12, 14; Torain Deck ¶¶ 10-13.)

Section 6 of the Employment Agreement governs the circumstances under which the Employment Agreement, and thus To-rain’s employment, could be terminated. Pursuant to the contract, if Torain was terminated without cause, Clear Channel would be obligated to pay Torain’s salary and benefits through the date of termination, plus “an amount equal to the remainder of [Torain’s] base salary ... through and including March 28, 2007 ... only if [Torain] agrees to and signs a general release prepared by [Clear Channel].” (Employment Agreement § 6(e).) However, if the termination was with cause, To-rain is only entitled to unpaid earned base salary and any benefits earned through the termination date. (Id. § 6(d).)

Section 6(c) of the Employment Agreement defines the circumstances that can constitute a for cause termination. The provisions of Section 6(c) relevant to this dispute include:

(i) failure, neglect, refusal, or nonperformance, at any time, of [Torain’s] duties or obligations set forth in this Agreement or a breach by [Torain] (confirmed in writing) of this Agreement, as determined by the Company in its sole discretion;

(iii) willful misconduct, or violation of any Company policy provided that [To-rain] had prior written notice (made known to [Torain] on the Clear Channel Resource Center Website or otherwise);

(iv) an act(s) or failures to act which in any manner threatens the qualification of [Clear Channel] or its affiliates to maintain a broadcast license issued by the FCC, or which results in a violation of any rule or regulation of the Federal Communications Commissions including but not limited to any utterance on the air that is obscene, indecent, or profane as determined and acknowledged in writing by [Clear Channel] or a court, upon review of a ruling from the FCC;

(v) making disparaging oral or written statements regarding [Clear Channel] or any affiliated company and including, without limitation, its or their officers, shareholders or management team, clients, sponsors or advertisers, or [Torain] acting in a tortious manner toward another employee, listener, client, sponsor or advertiser;

(vii) any conduct, on or off duty, which in the opinion of [Clear Channel], reflects unfavorably upon [Clear Channel] (including any radio or television broadcasting station owned or operated by [Clear Channel], its parent or subsidiary corporations or their advertisers) provided [Torain] is aware of such affiliation, brings [Torain] into disrepute or causes scandal or discredits [Clear Channel];

(Id. § 6(c).)

Also relevant to the instant dispute is Section 7(b) of the Employment Agreement, which provides:

[i]f [Clear Channel] has reason to believe [Torain] uttered obscene, indecent, or profane program content on the air in violation of any law or FCC regulation or rule (e.g., without limitation, through an FCC Notice of Apparent Liability or otherwise), the Company shall, at its sole discretion, suspend [Torain] while reviewing the program in question.... [Clear Channel] may, at its sole discretion, terminate [Torain] for cause as set forth in Section 6 if the program content was obscene, indecent, profane or otherwise in violation of the law, FCC regulations, or Company’s policy or directives, as determined by (i) the Company, or (ii) a court upon review of a ruling from the FCC. The Company’s policies or directives will be communicated to [To-rain] in writing, through training, or on the Clear Channel Resource Center website.

(Id. § 7(b).) In connection with the contractual provisions related to the Federal Communications Commission (“FCC”), it is undisputed that the FCC issued a letter dated April 13, 2007 advising Clear Channel that the FCC was investigating To-rain’s May 2006 on-air comments. (Pl.’s Counter 56.1 ¶30£; Def.’s Reply 56.1 ¶20£.) The parties also agree that the FCC had not issued a Notice of Apparent Liability, nor did any court issue an opinion that Torain violated an FCC rule or regulation. (Id. 1HIYY, ZZ.) In fact, it is now clear that the time has expired for the FCC to issue a Notice of Apparent Liability. (See Letter from James P. Cinque, Esq. to Hon. Peter K. Leisure, dated August, 3, 2009, (“Cinque Letter”), Docket No. 97.)

It is undisputed that, in addition to the Employment Agreement, Torain was aware of, and received training concerning, Clear Channel’s Responsible Broadcasting Initiative (“RBI”). (Def.’s 56.1 ¶¶ 11-15; Pl.’s Counter 56.1 ¶¶ 11-15; see also To-rain Decl. Ex. C.) Clear Channel’s RBI explains what is considered “indecent” material by the FCC, and that “indecent” material can only be broadcast between 10 p.m. and 6 a.m. — the Safe Harbor period. (Torain Decl. Ex. C. at 2; Def.’s 56.1 ¶ 13.) In particular, the RBI defines indecency as including “[ljanguage and material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” (Torain Decl. Ex. C. at 2; Def.’s 56.1 ¶ 14.) The RBI guides employees to seek guidance and clarification “over what seems to be ‘gray areas’.” (Torain Decl. Ex. C. at 5; see also Def.’s 56.1 ¶ 15.) Finally, according to the RBI, an employee will not necessarily be immediately terminated after the FCC issues a Notice of Apparent Liability. (Torain Decl. Ex. C. at 5.) Rather, after receiving a Notice of Apparent Liability, Clear Channel would take the responsible employee off the air, then perform an investigation into the circumstances of the statements, and finally provide additional training to the employee, and/or implement preventive measures if the program goes back on the air, and/or “if it concluded that the content violated FCC regulations, the on-air talent or personnel responsible will be terminated.” (Id.)

In addition to disputing Clear Channel’s grounds for terminating his employment pursuant to the Employment Agreement, Torain contends that his termination was improper because his on-air statements about the Caseys in May 2006 were similar in kind and substance to other statements Torain had broadcast during his tenure at Clear Channel, for which he was never reprimanded. (See Pl.’s Counter 56.1 ¶¶ AAA — UUU; Torain Decl. ¶¶ 33-45.) In that vein, Torain details other on-air comments that he considers similar to the May 2006 statements about the Caseys, including statements related to the sexuality and sexual relations of underage children, the promiscuity of women, and statements of ethnic and racial stereotypes. (Id.) Once again, due to the crass nature of these comments, the Court refrains from quoting the specific language referenced in the parties’ papers. Clear Channel does not dispute that Torain made the other on-air statements, but defendant objects to the relevance and admissibility of such statements. (See Def.’s Reply 56.1 ¶¶ AAA-UUU.)

Torain also suggests that his termination was improper because of Clear Channel’s ability to “dump” information it considered objectionable before that information aired to the public. (See Pl.’s Opp’n 22-24.) In particular, Torain submits evidence that Clear Channel employed and trained a “program monitor” who would have time to delete material that might violate FCC rules before that information went on the air. (See Pl.’s Counter 56.1 ¶¶ NN-TT; Torain Decl. ¶¶ 6-9; Cheek Decl. ¶¶ 13-14; Decl. of James P. Cinque in Opp’n to Clear Channel’s Mots, for Summary Judgment, sworn to on Nov. 2, 2007 (“Cinque Deck”) ¶¶ 10, 16, 31.) Clear Channel does not dispute that it had the ability to “dump” material before it aired, or that there were employees responsible for manning the “dump button” when Torain made the statements at issue. (See Def.’s Reply 56.1 ¶¶ NN— TT.) Rather, Clear Channel contends that plaintiffs assertions are unsupported by admissible evidence, and are immaterial and irrelevant pursuant to the Employment Agreement. (Id.)

Finally, Torain suggests that his termination was improper because Clear Channel failed to follow the agreed upon discipline procedure. Plaintiff relies upon Cheek’s declaration, averring that it was Cheek’s “understanding and agreement with Clear Channel that [he] would be part of any process concerning disciplining of Torain,” and that Clear Channel “followed this agreed upon procedure until the day it terminated Torain’s employment.” (Cheek Deck ¶ 23.) Clear Channel suggests that these facts are inadmissible and irrelevant to the Court’s determination of the terms of the Employment Agreement. (See Def.’s Reply 56.1 ¶'^)

II. Clear Channel’s Settlement and Indemnification Claim

Both Clear Channel and Torain have moved for summary judgment on Clear Channel’s counterclaim for indemnification. Clear Channel contends that, pursuant to the Employment Agreement, it is entitled to indemnification for the settlement it paid to the Caseys. The Employment Agreement provides:

[Torain] shall indemnify and hold harmless [Clear Channel] and any related entity ... against any and all loss, cost, liability, fines, forfeiture, damage and expense, occasioned by or in connection with any claim, demand, suit, proceeding, action or cause of action asserted or instituted by any other person, firm, agency, court or corporation arising out of or in connection with [Torain’s] performance of duties under this Agreement, or arising out of or in connection with [Torain’s] conduct outside the scope of his ... employment.

(Employment Agreement § 16(b).) In support of its claim, Clear Channel contends that the Caseys “threatened to immediately commence litigation in the courts of New York against Mr. Torain and Clear Channel to assert claims for defamation, intentional infliction of emotional distress, and other torts arising out of the statements concerning the Caseys that were made on-air by Mr. Torain in early May 2006.” (Def.’s Indem. 56.1 ¶ 21; see Aff. of John Hogan in Support of Def. Clear Channel Broadcasting, Inc.’s Mots, for Summary Judgment, sworn to on Sept. 27, 2007 (“Hogan Aff.”) ¶ 10.) Thereafter, Clear Channel contends that it conducted an investigation of those claims, including any defenses to those claims and Clear Channel’s potential liability for Torain’s on-air statements, and entered into a reasonable, good faith settlement with the Caseys. (Def.’s Indem. 56.1 ¶ 22-24; see Hogan Aff. ¶¶ 111-14.)

Torain does not actually dispute that the Caseys threatened litigation, or that Clear Channel conducted an investigation or analysis of those claims; rather, Torain suggests that the Court should disregard those statements because Clear Channel never produced any complaint, proposed complaint, or documents related to Clear Channel’s investigation, analysis, or settlement discussions with the Caseys. (Pl.’s Indem. Counter 56.1 ¶¶ 22-23; Cinque Deck ¶ 7.) Torain further contends that Clear Channel’s claim for contractual indemnification must be dismissed because (i) Clear Channel never gave Torain notice of the Caseys’ claim prior to the alleged settlement, (ii) Torain was never given an opportunity to defend the claims purportedly raised by the Caseys, (in) the Caseys never commenced litigation, (iv) Clear Channel did not establish that it was liable to the Caseys for the statements made by Torain, and (v) Clear Channel did not establish that the Caseys sustained damages in the amount of the settlement.

In support of these arguments, Torain contends that he could have asserted a defense of provocation against the Caseys’ claims because of the statements Casey, and his radio partner “Miss Jones,” made about Torain and his mother. Again, due to the explicit nature of these comments, the Court will refrain from directly quoting the comments Casey made about To-rain, but generalizes those comments as concerning Torain’s sexuality, his ability to reproduce, his race, and his mother’s activities as a prostitute. (See PL’s Indem. Counter 56.1 ¶ C; Torain Decl. ¶¶ 48, 64, Ex. HH.) Torain also contends that the statements concerning Gia Casey’s past sexual conduct might have been true, and thus, he would never concede, as Clear Channel did, that those statements were false. (See PL’s Indem. Counter 56.1 ¶¶ 14-15; Torain Decl. ¶ 63; Def.’s Indem. 56.1 ¶ 14.) Finally, Torain argues that because the Employment Agreement’s indemnification clause does not indemnify Clear Channel for its own negligent acts, Clear Channel is not entitled to indemnification in the instant action as Clear Channel was negligent in failing to “dump” any material deemed offensive. (PL’s Indem. Counter 56.1 ¶¶ D, E.)

DISCUSSION

The Court begins by addressing the standards applicable to summary judgment motions, and determining which state law should apply to the claims in this case. The Court then assesses whether the Employment Agreement allowed Clear Channel to terminate Torain’s employment for cause. Next, the Court considers the viability of Torain’s claims for breach of the implied covenant of good faith and fair dealing, and for violations of New York Labor Law. Finally, the Court considers whether the indemnification provision in the Employment Agreement covers the Caseys’ claims, and whether Torain is obligated to indemnify Clear Channel for its Settlement Payment to the Caseys.

I. Standard of Review

Rule 56 of the Federal Rules of Civil Procedure allows for the entry of summary judgment where “the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to a judgment as a matter of law.” Fed.R.Civ.P. 56(c). The party moving for summary judgment bears the “heavy burden” of demonstrating that no genuine issue as to any material fact exists and that it is therefore entitled to judgment as a matter of law. Nationwide Life Ins. Co. v. Bankers Leasing Ass’n, Inc., 182 F.3d 157, 160 (2d Cir.1999); accord Atl. Mut. Ins. Co. v. CSX Lines, L.L.C., 432 F.3d 428, 433 (2d Cir.2005) (“ ‘The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment (quoting Sec. Ins. Co. of Hartford v. Old Dominion Freight Line Inc., 391 F.3d 77, 83 (2d Cir.2004))); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994) (Kearse, J.). Nonetheless, summary judgment “is properly regarded not as a disfavored procedural shortcut, but rather as an integral part of the Federal Rules as a whole, which are designed to secure the just, speedy and inexpensive determination of every action.” Celotex Corp. v. Catrett, All U.S. 317, 327, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

A district court “must resolve all ambiguities and draw all inferences in favor of the non-moving party,” such that “[i]f there is any evidence in the record from which a reasonable inference could be drawn in favor of the non-moving party on a material issue of fact, summary judgment is improper.” Westinghouse Credit Corp. v. D’Urso, 278 F.3d 138, 145 (2d Cir.2002); accord Brown v. Cara, 420 F.3d 148, 152 (2d Cir.2005) (“We will affirm the District Court’s grant of summary judgment to defendants only if, based on facts not in genuine dispute and drawing all inferences in favor of plaintiffs, defendants are entitled to judgment on the merit s as a matter of law.”). Of course, “ ‘the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.’ ” Lang v. Ret. Living Publ’g Co., 949 F.2d 576, 580 (2d Cir.1991) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)). “A dispute as to a material fact is ‘genuine,’ and hence summary judgment is not appropriate, under this standard, only ‘if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.’ ” Id. (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505); accord N.Y. Stock Exch., Inc. v. New York, N.Y. Hotel LLC, 293 F.3d 550, 554 (2d Cir.2002). “[T]he law provides no magical talisman or compass that will serve as an unerring guide to determine when a material issue of fact is presented. As is so often true in the law, this is a matter of informed and properly reasoned judgment.” Am. Mfrs. Mut. Ins. Co. v. Am. Broadcasting-Paramount Theatres, Inc., 388 F.2d 272, 279 (2d Cir.1967).

II. Choice of Law

Choice of law is the first issue the Court must address. Arkwright-Boston Mfrs. Mut. Ins. Co. v. Calvert Fire Ins. Co., 887 F.2d 437, 439 (2d Cir.1989) (Winter, J.).

As a general matter, a district court sitting in diversity jurisdiction applies the choice-of-law rules of the state in which it sits. See Klaxon Co. v. Stentor Elec. Mfg. Co., 313 U.S. 487, 496, 61 S.Ct. 1020, 85 L.Ed. 1477 (1941); Lee v. Bankers Trust Co., 166 F.3d 540, 545 (2d Cir.1999) (McLaughlin, J.). Thus, New York law will apply for purposes of determining which state’s substantive law will govern the claims in this case. Wall v. CSX Transp., Inc., 471 F.3d 410, 415 (2d Cir. 2006). Here, the Employment Agreement contains a choice-of-law provision that provides for the application of Texas law, and “[a]s a general rule, choice of law provisions ... are valid and enforceable in [New York].” Terwilliger v. Terwilliger, 206 F.3d 240, 245 (2d Cir.2000) (quoting Marine Midland Bank, N.A. v. United Mo. Bank, N.A., 223 A.D.2d 119, 643 N.Y.S.2d 528, 530 (N.Y.App.Div.1996)) (internal quotation marks removed); Village on Canon v. Bankers Trust Co., 920 F.Supp. 520, 526 (S.D.N.Y.1996) (“Choice of law clauses in loan documents and contracts are generally honored in New York.” (citations omitted)); Freedman v. Chem. Constr. Corp., 43 N.Y.2d 260, 265 n. *, 401 N.Y.S.2d 176, 372 N.E.2d 12, 15 n. * (N.Y.1977) (“As a general matter, the parties’ manifested intentions to have an agreement governed by the law of a particular jurisdiction are honored.” (citation omitted)).

Moreover, “New York law is clear in cases involving a contract with an express choice-of-law provision: Absent fraud or violation of public policy, a court is to apply the law selected in the contract as long as the state selected has sufficient contacts with the transaction.” Hartford Fire Ins. Co. v. Orient Overseas Containers Lines, 230 F.3d 549, 556 (2d Cir.2000) (citation omitted); accord MSF Holding Ltd. v. Fiduciary Trust Co. Int’l, 435 F.Supp.2d 285, 293 (S.D.N.Y.2006) (Leisure, J.) (same), aff'd 235 Fed.Appx. 827 (2d Cir.2007); see also Cap Gemini Ernst & Young, U.S., L.L.C. v. Nackel, 346 F.3d 360, 365 (2d Cir.2003) (per curiam) (“[A]l-though, New York courts generally defer to the choice of law made by the parties to a contract ... New York law allows a court to disregard the parties’ choice when the most significant contacts with the matter in dispute are in another state.” (internal quotations and citations removed)).

Here, relevant considerations weigh in favor of interpreting the provisions of the Employment Agreement under Texas law. Clear Channel maintains its principal place of business in Texas and the agreement specifies that Texas is the forum of choice, which create sufficient contacts with Texas; based on the record, there is no basis to conclude that application of Texas law would perpetuate any fraud or violate public policy. Thus, this Court will apply Texas substantive law to determine whether Torain was discharged for cause under the terms of the Employment Agreement, and whether Clear Channel is entitled to indemnification for the Settlement Payment. Moreover, because Torain’s claim for breach of the implied covenant of good faith and fair dealing arises out of the Employment Agreement, that claim is also governed by Texas law. See Comprehensive Habilitation Servs., Inc. v. Commerce Funding Corp., No. 05 Civ. 9640, 2009 WL 935665, at *10 n. 14, 2009 U.S. Dist. LEXIS 30386, at *32 n. 14 (S.D.N.Y. Apr. 6, 2009) (Leisure, J.) (explaining that “[b]ecause breach of the implied covenant of good faith and fair dealing is a contractual cause of action, and the choice of law provision applies to the interpretation and enforcement of the contract,” the law of the forum specified in the choice-of-law provision applies to the implied covenant claim); Butvin v. DoubleClick, Inc., No. 99 Civ 4727, 2001 WL 228121, at *7, 2001 U.S. Dist. LEXIS 2318, at *23 (S.D.N.Y. March 5, 2001) (Keenan, J.) (explaining that Delaware choice-of-law provision in contract also applies to implied covenant claim as “the implied covenant of good faith is a rule of interpretation rather than a separate obligation” (internal citations and quotations omitted)).

III. Clear Channel’s Contractual Right To Terminate Plaintiff Pursuant to the Employment Agreement

a. Texas Contract Law

When faced with a motion for summary judgment in a contract dispute, the Court must first determine if the contract is unambiguous. In making this crucial assessment, the Court’s primary goal is to give effect to the parties’ agreement as expressed in the written instrument. Amigo Broad., LP v. Spanish Broad. Sys., Inc., 521 F.3d 472, 480 (5th Cir.2008) (explaining that under Texas law “ ‘the court’s primary concern is to enforce the parties’ intent as contractually expressed, and an unambiguous contract will be enforced as written’ ” (quoted reference omitted)); Dell Computer Corp. v. Rodriguez, 390 F.3d 377, 388 (5th Cir.2004) (explaining that pursuant to well-settled Texas law on contract construction, “ ‘[t]he primary concern of a court in construing a written contract is to ascertain the true intent of the parties as expressed in the instrument’” (quoted reference omitted)); Valley Reg’l Med. Ctr. v. Wright, 276 F.Supp.2d 620, 627 (S.D.Tex.2001) (“According to the rules of construction, the primary concern is to ascertain and to give effect [to] the intentions of the parties as expressed in the instrument.” (citing Le-nape Res. Corp. v. Tennessee Gas Pipeline Co., 925 S.W.2d 565, 574 (Tex.1996))).

If the terms of the contract can be given a definite meaning, they are not ambiguous. Texas v. Am. Tobacco Co., 463 F.3d 399, 407 (5th Cir.2006); Dell, 390 F.3d at 388. A contract is not ambiguous merely because the parties advance conflicting interpretations of a contractual provision, unless there are two or more reasonable interpretations of that provision. Universal Health Servs., Inc. v. Renaissance Women’s Group, P.A., 121 S.W.3d 742, 746 (Tex.2003). Similarly, if there is only one reasonable interpretation of a contract, that contract is not ambiguous simply because the parties dispute which contract provision governs the pending controversy. Valley Reg’l, 276 F.Supp.2d at 628 (holding as a matter of law that contract was not ambiguous as to which provision should apply to the dispute because contract was subject to only one reasonable interpretation). “ “Whether a contract is ambiguous is a question of law for the court to decide by looking at the contract as a whole in light of the circumstances present when the contract was entered.’” Am. Tobacco, 463 F.3d at 407 (quoting Coker v. Coker, 650 S.W.2d 391, 394 (Tex.1983)).

“Courts interpreting unambiguous contracts are confined to the four corners of the document, and cannot look to extrinsic evidence to create an ambiguity.” Id. at 407. Accordingly, “ ‘[p]arol evidence is not admissible for the purpose of creating an ambiguity.’ ” Dell, 390 F.3d at 388 (quoted reference omitted). “[T]he Texas parol evidence rule — a rule of substantive law and not merely of evidence — bars resort to evidence of the intent of the parties where the language of the agreement is clear.” United States v. Vahlco Corp., 720 F.2d 885, 891 (5th Cir.1983); see Cox v. Bell Helicopter Int’l, 425 F.Supp. 99, 103 (N.D.Tex.1977) (“Under Texas law, the parol evidence rule excludes evidence of prior or contemporaneous negotiations and representations that are introduced to vary, add to, or contradict, the terms of a valid written instrument, which is presumed by the rule to embody the complete agreement of the parties.”). “ ‘Only after a contract is found to be ambiguous may parol evidence be admitted for the purpose of ascertaining the true intentions of the parties expressed in the contract.’ ” Am. Tobacco, 463 F.3d at 407 (quoted reference omitted).

b. Application of Texas Contract Law

Here, the parties dispute whether the Employment Agreement allowed Clear Channel to terminate Torain for cause based upon Torain’s on-air statements in early May 2006. Specifically, the parties disagree as to which provisions in the contract govern the question of Torain’s termination, and they further dispute what the contract provisions actually mean.

Clear Channel contends that it had six separate and independent grounds under which it could terminate Torain for Cause. (Def.’s Mem. 17.) The Court will take each provision in turn.

1. Section 7(b) and Section 6(c)(iv)

First, Clear Channel argues that To-rain’s on-air statements about the Caseys violated the RBI and, therefore, in its sole discretion, Clear Channel was entitled to terminate Torain pursuant to Section 7(b) of the Employment Agreement. (Def.’s Mem. 17-18.) By contrast, Torain contends that because Clear Channel only cited Section 6(c) of the Employment Agreement as grounds for termination in Torain’s termination letter (see Todd Decl. Ex. E), Clear Channel cannot now rely upon Section 7(b) to justify the termination. (Pl.’s Opp’n 10-11) (citing Meas-day v. Kwik-Kopy Corp., 713 F.2d 118, 125-26 (5th Cir.1983).) Torain further contends that even if Clear Channel could invoke Section 7(b), the RBI, the parties’ pre-contract discussions, and Hogan’s testimony before Congress make clear that termination could only occur after an FCC Notice of Apparent Liability and a court adjudication of the FCC’s ruling. (Id. at 12-13; Torain Decl. ¶¶ 6-7, 11-13; Cheek Decl. ¶¶ 8-9, 11-12, 24-25.)

While Torain correctly points out that, under Texas law, an employer cannot offer a different justification for terminating an employee during litigation from the explanation first offered, here, Section 7(b) specifies that Clear Channel “may, at its sole discretion, terminate [Torain] for cause as set forth in Section 6. ” (Employment Agreement § 7(b) (emphasis added).) Accordingly, while Section 7(b) might not be a proper, independent justification for Torain’s termination, Torain’s assertion that this section has no application to this dispute is erroneous. (See Pl.’s Opp’n 11.) As Section 7(b) specifically cites Section

6(c) — the provision both parties ask this Court to construe — the Court cannot disregard Section 7(b) in its analysis, but must read these provisions together. In other words, this Court must examine the entire contract to ensure that the Court gives effect to the parties’ intent and the contract as a whole. See Amigo Broad., 521 F.3d at 481-82 (interpreting all provisions of employment agreement to “best give effect to the ‘entire writing’ and [to] best harmonize[ ] ‘all the provisions of the contract’” (citing Coker, 650 S.W.2d at 393)); Lewis, 2006 WL 1767138, at *4, 2006 TexApp. LEXIS 5645, at *10 (explaining that the court must “consider the entire writing in an effort to harmonize and to give effect to all of the provisions of the contract so that none will be rendered meaningless ... all provisions must be considered with reference to the whole instrument” (citing Forbau v. Aetna Life Ins. Co., 876 S.W.2d 132, 133-34 (Tex. 1994))).

Section 7(b) makes clear that Clear Channel reserved the right to terminate Torain if “the program content was obscene, indecent, profane or otherwise in violation of the law, FCC regulations, or [Clear Channel’s] policies or directives, as determined by (i) [Clear Channel], or (ii) a court upon review of a ruling from the FCC.” (Employment Agreement § 7(b).) By phrasing this provision in the alternative, the contract unambiguously allows Clear Channel or a court to determine whether questioned program content is obscene, indecent, or profane. Similarly, Section 6(c)(iv) allows Clear Channel, or a court, to determine that an on-air utterance is obscene, indecent, or profane. (Id. § 6(c)(iv).)

Moreover, the RBI does not alter this Court’s conclusion that an FCC determination, as approved by a court, is not a prerequisite to termination under the Employment Agreement. Instead, the language in the RBI illustrates the types of statements that Clear Channel might consider indecent, including “[ljanguage and material that, in context, depicts or describes, in terms patently offensive as measured by contemporary community standards for the broadcast medium, sexual or excretory organs or activities.” (To-rain. Decl. Ex. C. at 2.) Torain suggests that the RBI makes clear that an indecency complaint, i.e. a Notice of Apparent Liability, is final only if an order has been entered by a court. (See PL’s Opp’n 14-17.) However, neither Sections 6(c)(iv) nor 7(b) is limited to situations where the FCC issued a Notice of Liability. Rather, separate and apart from any Notice of Apparent Liability or other FCC action, the contractual provisions allowed Clear Channel to terminate Torain for cause based upon its own determination that To-rain made obscene, indecent, or profane statements, which could jeopardize Clear Channel’s broadcast license or cause FCC liability. (See Employment Agreement § 6(c)(iv).) Thus, even though the FCC did not, and, it now appears, cannot, issue a determination as to Torain’s May 2006 statements (Cinque Letter Ex. A), Clear Channel can still invoke Section 6(c)(iv) of the Employment Agreement in the instant dispute.

Because Sections 7(b) and 6(c)(iv) of the Employment Agreement unambiguously provide Clear Channel with the authority to terminate Torain based upon Clear Channel’s own determination that his on-air statements were obscene, indecent, or profane, this Court is precluded from considering parol evidence, including Hogan’s testimony before Congress and the contract negotiations between Clear Channel and Cheek. See Am. Tobacco, 463 F.3d at 407 (explaining that parol evidence cannot create an ambiguity in a contract); Dell, 390 F.3d at 388 (same); Cox, 425 F.Supp. at 103 (excluding “testimony concerning an alleged oral agreement entered into prior to the written agreement to vary, add to, or contradict the terms of the written agreement of the parties”); NHA, Inc. v. Jones, 500 S.W.2d 940, 949-50 (Tex.Civ.App.1973) (rejecting evidence of pre-contract oral agreement that there was no company personal appearance code and that employee could keep a beard or mustache, as that parol evidence violated the written company policy, pursuant to which employee was terminated). Accordingly, because it is undisputed that Robert Williams, President and Market Manager for Clear Channel Radio’s Power 105.1 radio station, determined that Torain’s May 2006 statements were potentially indecent and violated company policy and directives, the Court finds that Clear Channel’s decision to terminate Torain for cause is consistent with Sections 6(c)(iv) and 7(b) of the Employment Agreement. (See Williams Aff. ¶¶ 1, 3, 5.)

2. Section 6(e) (vii)

Second, Clear Channel argues that it had grounds to terminate Torain pursuant to Section 6(c)(vii) of the Employment Agreement as Clear Channel determined that Torain’s on-air comments reflected unfavorably on Clear Channel, brought To-rain into disrepute, and caused scandal. (Def.’s Mem. 18-19.) Torain does not specifically address Section 6(c)(vii) in his opposition papers, arguing instead that Section 6(c)(iv) is the exclusive basis upon which Clear Channel could have terminated Torain for his on-air statements. (See Pl.’s Opp’n 14-18.) Nevertheless, in his opposition to Clear Channel’s statement of undisputed material facts, Torain contends that “[t]he word ‘conduct’ in subparagraph 6(c)(vii) refers to actions, and not statements made on the air.” (Pl.’s Counter 56.1 ¶ 9 (citing Cheek Decl. ¶ 26).) The Court concludes that the only-reasonable interpretation of the term “conduct” in Section 6(c)(vii) encompasses statements made on the air, and cannot be limited to physical actions. It strains the English language to exclude statements or words from “conduct,” and thus Torain fails to offer a reasonable reading of Section 6(c) (vii) of the Employment Agreement. Cheek might have believed that there are only two “for cause” termination provisions that cover on-air statements. (See Cheek Deck ¶ 26 (explaining that, other than Section 6(c)(iv) of the Employment Agreement, “the provisions referred to by Clear Channel in its motion were not meant to apply to on-air statements ... subparagraph (vii) relates to ‘conduct’ (actions, not words) which ‘brings employee into disrepute or causes scandal or discredits company’ — i.e., an act other than a statement made on air”).) However, Cheek’s precontract understanding of the agreement cannot contradict the clear, unambiguous language used in the written contract. See Cox, 425 F.Supp. at 103; NHA, 500 S.W.2d at 949-50.

3. Section 6(c)(iii)

Third, Clear Channel contends that because Torain’s on-air statements violated Clear Channel’s company policy, Clear Channel had grounds to terminate Torain for cause pursuant to Section 6(c)(iii) of the Employment Agreement. (Def.’s Mem. 19.) Specifically, Clear Channel asserts that Torain knew of the company policy, as stated in the RBI, that prohibits the broadcasting of indecent statements, like those Torain made in May 2006, outside the Safe Harbor timeframe of 10 p.m. to 6 a.m. (Id.)

It is undisputed that the RBI provides that indecent material can only be broadcast during the Safe Harbor hours of 10 p.m. to 6 a.m. (See Torain Deck Ex. C. at 2, 5.) It is also undisputed that Torain knew about this policy. (See Def.’s 56.1 ¶ 12.) Because Torain made statements that, if ever properly made, could only have been broadcast during the Safe Harbor periods, Torain violated a communicated company policy, which gives rise to a for cause termination under Section 6(c)(iii) of the Employment Agreement.

4. Section 6(c)(v)

Fourth, Clear Channel contends that Torain’s statements concerning Gia Casey constituted tortious conduct toward a listener, and thus gave Clear Channel grounds to terminate Torain pursuant to Section 6(c)(v) of the Employment Agreement. (Def.’s Mem. 20-21.) In particular, Clear Channel asserts that Torain’s comments about Gia Casey’s sexual behavior were defamatory per se, and that Torain’s comments regarding the Caseys’ daughter caused Gia Casey to suffer emotional distress. (Id. at 20.) Accordingly, as Gia Casey was a “listener” to these comments, and defamation and intentional infliction of emotional distress are torts, Clear Channel contends that it had grounds to terminate Torain. (Id. at 20-21.)

Torain does not address this provision in his memorandum of law in opposition to Clear Channel’s motion. He does assert that the phrase “tortious manner” was meant to apply to a physical confrontation, and that it was implausible that Gia Casey was a “listener,” since her husband’s radio show aired at the same time as Torain’s program. (Pl.’s Counter 56.1 ¶ 8; Cheek Deck ¶ 26; Torain Deck ¶ 62.)

First, Torain’s contention that Gia Casey was not a “listener” because it is unbelievable that she would listen to Torain at the same time as her husband’s radio show aired is unavailing. Torain cannot create a question of fact based upon his conclusory assertion that the sworn statement in Gia Casey’s affidavit is not credible. See Island Software & Computer Serv., Inc. v. Microsoft Corp., 413 F.3d 257, 261 (2d Cir.2005) (“Broad, conclusory attacks on the credibility of a witness will not, by themselves, present questions of material fact.”).

Moreover, and more significantly, the Court finds Torain’s reading of this provision of the contract unreasonable as a matter of law. The term “tortious” means “[c]onstituting a tort; wrongful,” or “[i]n the nature of a tort.” Black’s Law Dictionary 1497 (7th Ed.1999). As such, acting in any way that is in the nature of a tort is to act in a “tortious manner.” It is indisputable that torts are not limited to physical confrontations, and that torts include non-physical wrongs such as defamation and intentional infliction of emotional distress. Accordingly, the only reasonable reading of Section 6(c)(v) of the Employment Agreement, which allows Clear Channel to terminate Torain for cause for “acting in a tortious manner toward another employee, listener, client, sponsor or advertiser,” is that any act that could constitute a tort against one of those listed individuals is grounds for termination for cause. As described in great detail below, the Court concludes that Torain’s May 2006 on-air statements could have given rise to liability for defamation and intentional infliction of emotional distress, and, thus, Clear Channel’s decision to terminate plaintiff was consistent with Section 6(e)(v) of the Employment Agreement.

5. Section 6(c)(i)

Clear Channel relies upon Section 6(c)(i) of the Employment Agreement for its fifth and sixth justifications for terminating To-rain’s employment for cause. First, Clear Channel contends that Torain’s violation of the RBI constituted a “failure, neglect, refusal, or nonperformance .. of [Torain’s] obligations” set forth in the Employment Agreement. (Def.’s Mem. 21 (citing Employment Agreement § 6(c)(i)).) Amongst his duties under the contract, Torain was required to perform or furnish program materials “in accordance with the standards, policies and directions of [Clear Channel].” (Employment Agreement § 4(a).) Therefore, given the unambiguous language of this first clause of Section 6(c)(i) of the Employment Agreement, the Court concludes that Clear Channel had grounds to terminate Torain as his May 2006 broadcasts violated the RBI, as discussed above.

Second, Clear Channel contends that by broadcasting content that is prohibited by Clear Channel, Torain failed to comply with Clear Channel’s standards, policies and directions, and thus, Torain breached the Employment Agreement, which, pursuant to Section 6(c)(i), is a ground for termination for cause. (Def.’s Mem. at 21-22.) However, Section 6(c)(i) also requires that any breach of the Employment Agreement must be confirmed in writing. (Employment Agreement § 6(c)(i).) The Court rejects Clear Channel’s contention that it confirmed this breach in writing (Def.’s Mem. at 22; Def.’s 56.1 ¶ 44.) While it is clear that Clear Channel sent Torain a written termination letter, that letter did not specify that Torain breached the Employment Agreement. (Todd. Decl. Ex. E.) Accordingly, the Court rejects this justification for Torain’s termination.

In sum, the Court concludes that Clear Channel did not breach the Employment Agreement by terminating Torain for his on-air statements concerning the Caseys, as the clear and unambiguous terms of Sections 6(c)(i), 6(c)(iii), 6(c)(iv) (in connection with Section 7(b)), 6(c)(v), and 6(c)(vii) of the Employment Agreement provided Clear Channel with the necessary discretion and authority to terminate Torain for cause. Accordingly, while the Court acknowledges that Torain believed, based on pre-contract discussions, that the Employment Agreement provided him with greater protections, such that he would not be disciplined or terminated for on-air statements like those made about the Caseys, he failed to ensure that those protections were actually included in the Employment Agreement. Likewise, plaintiffs suggestion that Clear Channel was obligated to include Torain’s manager in any disciplinary actions (see Cheek Decl. ¶¶ 18-23), is unavailing as such procedures are entirely absent from the Employment Agreement. Plaintiff cannot contradict the clear written terms of his contract with his pre contract oral understanding of the parties’ agreement. See Am. Tobacco, 463 F.3d at 407; Vahlco, 720 F.2d at 891; Cox, 425 F.Supp. at 103. The Court will not add terms to the Employment Agreement to provide plaintiff with additional protections that Torain failed to make part of the written agreement. See Gilbane Bldg. Co. v. Keystone Structural Concrete, Ltd., 263 S.W.3d 291, 299 (Tex.App.2007) (declining to add provisions to the contract as “[p]arties should be held to the contract they drafted”); In re Godt, 28 S.W.3d 732, 736 (Tex.App.2000) (“In interpreting a contract, the ultimate restraint is that a court cannot, through the construction process, make a new contract for the parties, one they did not make.”). Thus, the remaining issue for this Court to address is whether Clear Channel waived or condoned To-rain’s behavior such that Clear Channel is now precluded from enforcing the terms of the contract and terminating Torain.

c. Plaintiff’s Defenses to Clear Channel’s Contractual Rights to Terminate Torain for Cause

Torain proffers several arguments as to why, even if Clear Channel would have had the right to terminate Torain for cause under the Employment Agreement, Clear Channel relinquished that right through its actions. First, Torain contends that, even if Clear Channel had the contractual right to terminate Torain’s employment for his May 2006 on-air statements, “since Clear Channel had condoned such statements throughout the course of Torain’s employment, Clear Channel was obligated to put Torain on notice that it would no loner permit him to say such things on the air.” (Pl.’s Opp’n 8-9.) Second, Torain contends that, because Clear Channel indicates that it could be held vicariously liable for Torain’s statement to the Caseys, Clear Channel admitted that it “authorized, participated in, consented or ratified” Torain’s conduct, thereby precluding Clear Channel from asserting that it properly terminated Torain’s employment. (Id. at 10.) Finally, Torain contends that Clear Channel was “at least as equally responsible, if not more so, for the airing of Torain’s statements [so] it cannot use them as the basis for obtaining any relief’ under the doctrine of in pari delicto. (Id. at 22-24.)

At the outset, the Court notes that waiver is generally an affirmative defense, such that a defendant in a breach of contract action asserts the defense in an effort to shield itself from liability for a breach of contract claim, and that defendant must establish conclusively each element of the defense. See FDIC v. Attayi, 745 S.W.2d 939, 946 (Tex.App.1988) (explaining that defendant must establish conclusively all the essential elements of a waiver affirmative defense); see also Fed. R.Civ.P. 8(c)(i) (listing “waiver” as an affirmative defense that a party must state in a responsive pleading). By contrast, in the instant case, it is Torain, the plaintiff, who argues that he is entitled to breach of contract damages because Clear Channel, the defendant, waived its right to terminate him pursuant to the Employment Agreement. Despite this procedural distinction, even if the Court applies the waiver doctrine to the instant dispute, Torain’s argument fails as a matter of law.

“Waiver is the voluntary or intentional relinquishment of a known right, or intentional conduct inconsistent with claiming such a right.” Witt v. Countrywide Home Loans, Inc., No. 3:06-CV-1384-D, 2007 WL 2296538, at *3, 2007 U.S. Dist. LEXIS 58688, at *10 (N.D.Tex. Aug. 10, 2007) (citations omitted); accord Horton v. DaimlerChrysler Fin. Servs. Ams., L.L.C., 262 S.W.3d 1 (Tex.App.2008) (citing United States Fid. & Guar. Co. v. Bimco Iron & Metal Corp., 464 S.W.2d 353, 357 (Tex.1971)). “[A] party can waive contractual provisions that are in the contract for the party’s benefit, provided there is an intentional relinquishment of that right.” Witt, 2007 WL 2296538, at *3, 2007 U.S. Dist. LEXIS 58688, at *10. Accordingly, “[i]ntent is the key element in establishing waiver.” Attayi, 745 S.W.2d at 947.

Here, no reasonable trier of fact can conclude that, because Clear Channel declined to discipline Torain in the past for making similar on-air comments to those made in May 2006, Clear Channel manifested its intent to relinquish its right to terminate Torain for on-air statements that it believed rose to the level of a terminable offense. While Torain’s previous on-air statements do appear similar in kind to those made about the Caseys, none of the other comments were directed at the Caseys, none of the other comments were directed at a four year-old child, and none of the other comments received the public attention that the May 2006 comments received. The Employment Agreement empowered Clear Channel to determine whether a statement violated a company policy, was obscene or indecent, constituted tortious activity against a listener, or reflected poorly on Clear Channel or Torain. (See Employment Agreement §§ 6(c)(i), (iii), (v), (vii).) Inherent in this power is Clear Channel’s right to determine that some statements crossed the line, and fell within the enumerated grounds of Section 6(c), while other statements were acceptable. Even if Clear Channel allowed, and even encouraged, Torain’s previous statements, Torain fails to raise a question of fact as to Clear Channel’s intent to waive its right to terminate Torain under any circumstances. Thus, this waiver defense fails as a matter of law.

Similarly, the Court is not persuaded by Torain’s argument that Clear Channel is precluded from enforcing the contract’s termination provisions because it conceded that it could or would be vicariously hable for Torain’s statements to the Caseys. (Pl.’s Opp’n 9-10.) According to plaintiff, by admitting that Clear Channel could be vicariously liable for Torain’s statements, it implicitly authorized those statements, and is now precluded from arguing that the statements were grounds for termination. (Id.) However, the cases plaintiff cites in his memorandum of law flatly contradict this argument. The ease law makes clear that an employer can be held vicariously liable for the acts of its employees, even if those acts violated corporate policy or were otherwise wrongful, so long as those acts were within the scope of the employment. See Hooper v. Pitney Bowes, Inc., 895 S.W.2d 773, 776, 777 (Tex.App.1995) (explaining that an “employer is liable for the act of his employee, [including defamation,] even if the specific act is unauthorized or contrary to express orders, so long as the act is done while the employee is acting within his general authority and for the benefit of the employer” and that “[n]either express authorization nor subsequent ratification is necessary to establish liability”); see also Carlton v. Steele, 278 Fed.Appx. 352, 353 (5th Cir.2008) (explaining that under Texas law “[a]s [the] employer, [defendant] many be held vicariously liable for any slanderous statements made by [the employee.]”). Torain does not suggest that Torain’s on-air statements during his radio show were outside the scope of his employment, and therefore, Clear Channel’s admission that it could be held vicariously liable for Torain’s comments in no way suggests that Clear Channel authorized, participated in, consented to, or ratified Torain’s conduct.

Finally, the doctrine of in pari delicto is entirely inapplicable to a determination of whether Torain’s statement can constitute grounds for termination under the Employment Agreement. As made clear by the cases cited in plaintiffs opposition papers, the doctrine acts as a bar to a plaintiffs recovery if that plaintiff was at equal fault, or engaged in similar wrongdoing, as the defendant. (Pl.’s Opp’n 23-24.) Here, however, it is Torain, and not Clear Channel, seeking damages, and, thus, the doctrine has no application to the determination of Clear Channel’s motion for summary judgment on plaintiffs complaint.

Because Torain cannot establish that Clear Channel breached the terms of the Employment Agreement by terminating him on May 10, 2006, and because Torain has not established that Clear Channel foreclosed its rights under the contract to enforce the termination provisions under the Employment Agreement, Torain’s claim for breach of contract fails as a matter of law.

d. Plaintiff’s Remaining Claims

Clear Channel contends that plaintiffs implied covenant of good faith and fair dealing claim, and his claim that Clear Channel violated New York Labor Law, also fail as a matter of law. Torain does not address these arguments in his opposition papers. This Court agrees with Clear Channel, and concludes that plaintiffs remaining claims must also be dismissed.

First, Clear Channel correctly notes that, pursuant to Texas law, there is no viable claim for breach of the implied covenant of good faith and fair dealing in an employment action. City of Midland v. O’Bryant, 18 S.W.3d 209, 216 (Tex.2000) (holding that there is no duty of good faith and fair dealing in the employment context, regardless of whether employment is at-will or governed by an express agreement); see Stover v. i2 Techs., Inc., No. 3:02-CV-2202-R, 2003 WL 21673525, at *4, 2003 U.S. Dist. LEXIS 12126, at *12 (N.D.Tex. July 14, 2003) (dismissing plaintiff-employee’s claim for breach of the duty of good faith and fair dealing as “ ‘there is no cause of action in Texas based on a duty of good faith and fair dealing in the context of an employer/employee relationship.’ ” (citing Midland, 18 S.W.3d at 215)). Accordingly, Torain’s second cause of action must be dismissed as a matter of law.

Second, because Torain’s labor law claims are premised on Clear Channel’s failure to pay certain monies due to him under the Employment Agreement, and because this Court holds as a matter of law that that Clear Channel’s for cause termination of Torain was consistent with the Employment Agreement, Torain is not entitled to any additional wages or payments under the Employment Agreement. (See Employment Agreement § 6(d).) Thus, his New York Labor Law claim fails as a matter of law. Tierney v. Capricorn Investors, L.P., 189 A.D.2d 629, 632, 592 N.Y.S.2d 700, 703 (N.Y.App.Div.1993) (holding that “plaintiff cannot assert a statutory claim for wages under the Labor Law if he has no enforceable contractual right to those wages”); see Zaitsev v. Salomon Bros., 60 F.3d 1001, 1004 (2d Cir. 1995) (holding that claim for unpaid wages under New York Labor Law § 190 et seq. was properly dismissed where plaintiff “can prove no contract that will satisfy the Statute of Frauds” (citing Tierney, 189 A.D.2d at 632, 592 N.Y.S.2d at 703)).

Accordingly, Clear Channel’s motion for summary judgment on all of plaintiffs claims is granted, and plaintiffs complaint is dismissed in its entirety.

IV. Clear Channel’s Settlement and Indemniñcation Claim

The Court now turns to the parties’ motions for summary judgment on Clear Channel’s counterclaim seeking contractual indemnification from Torain for Clear Channel’s settlement with the Caseys. Because the indemnification language is contained in a contract governed by a Texas choice-of-law provision, pursuant to the case law described above, the Court will interpret the indemnity provision pursuant to Texas law. Thus, in determining the breadth of the indemnity provision, and any defenses to the application of the indemnity provision, the Court will consult Texas law. However, the Court’s analysis of the Caseys’ potential claims against Clear Channel should be analyzed under New York law, as those extra-contractual claims were to be brought in the New York courts. Aecordingly, the Court will determine whether the Caseys had a viable claim against Clear Channel under New York law.

a. Applicable Law Concerning Indemnity Agreements

In construing an indemnity agreement, the parties’ intention must “first be ascertained by rules of construction applicable to contracts generally,” and once the parties’ intent is determined, “the doctrine of strictissimi jurist] applies and the liability of the indemnitor under his contract as thus interpreted will not be extended beyond the terms of the agreement.” Mitchell’s Inc., 303 S.W.2d at 778, 157 Tex. at 428; see E.I. Du Pont De Nemours & Co. v. Shell Oil Co., 259 S.W.3d 800, 805 (Tex.App.2007) (“Indemnity agreements must be strictly construed, pursuant to the usual principles of contract interpretation, in order to give effect to the parties’ intent as expressed in the agreement.”); Safeco Ins. Co. of Am. v. Gaubert, 829 S.W.2d 274, 281 (Tex.App.1992) (explaining that a contract for indemnity is read as any other contract, such that the words and phrases in the agreement are given their “ordinary, popular, and commonly accepted meaning,” and once the parties’ intent is ascertained, the doctrine of strictissimi juris applies).

Moreover, pursuant to the “express negligence doctrine,” an indemnity agreement will not indemnify a party for that party’s own negligence, unless the contract specifically states that the indemnitee will be indemnified for its own negligence. Ethyl, 725 S.W.2d at 708 (adopting the express negligence doctrine, which provides that “parties seeking to indemnify the indemnitee from the consequences of its own negligence must express that intent in specific terms ... [and] the intent of the parties must be specifically stated within the four corners of the contract”); see XL Specialty Ins. Co. v. Kiewit Offshore Servs., Ltd., 513 F.3d 146, 149 (5th Cir.2008) (“Texas’s express negligence rule is a ‘rule of contract interpretation that applies specifically to agreements to indemnify another party for the consequences of that party’s own negligence.’ ” (quoting Quorum Health Res. v. Maverick County Hosp. Disk, 308 F.3d 451, 458 (5th Cir.2002))).

b. Application of Law Regarding Indemnity Agreements

Here, the Employment Agreement provides that Clear Channel is entitled to indemnity for “any claim, demand, suit, proceeding, action or cause of action ... arising out of or in connection with [Torain’s] performance of duties under [the Employment Agreement], or arising out of or in connection with [Torain’s] conduct outside the scope of his [] employment.” (Employment Agreement § 16(b).) This Court concludes, as a matter of law, that the Caseys’ putative claims against Clear Channel fall within the clear and unambiguous language of the indemnity provision of the Employment Agreement. Giving the terms of the indemnity provision their “ordinary, popular, and commonly accepted meaning,” Safeco, 829 S.W.2d at 281, Torain’s on-air statements in May 2006 arise out of his duties as a radio personality for Clear Channel. Moreover, Torain’s suggestion that the fact that the Caseys never filed suit is dispositive of Clear Channel’s right to indemnification (PL’s Indem. Mem. 6-7), is inconsistent with the clear terms of the indemnity provision. By using the terms “claim, demand, suit, proceeding, action or cause of action asserted or instituted,” the parties clearly intended to cover claims both formally and informally asserted against Clear Channel. Therefore, because it is undisputed that the Caseys asserted a claim against Clear Channel for Torain’s on-air statements, and the Caseys indicated that they intended to commence an action in the New York state courts, the unambiguous language of the Employment Agreement indicates that Torain is responsible for indemnifying Clear Channel.

The Court also rejects Torain’s argument that he is not obligated to indemnify Clear Channel because of Clear Channel’s own negligence in failing to “dump” the May 2006 statements. (Pl.’s Indem. Opp’n 17.) The Court agrees with plaintiff that the indemnification language in the Employment Agreement would not satisfy the express negligence doctrine, as the provision fails to specifically assert that Clear Channel would be indemnified for its own negligence. See Ethyl, 725 S.W.2d at 708 (holding that the indemnity provision’s coverage of “any loss” fails to meet the express negligence test). However, the express negligence doctrine would only preclude Clear Channel’s recovery if Clear Channel sought indemnification for neglig