Germain v. Nielsen Consumer LLC
| Decision Date | 08 February 2023 |
| Docket Number | 1:22-cv-1314-GHW |
| Parties | MATTHEW GERMAIN, Plaintiff, v. NIELSEN CONSUMER LLC d/b/a NIELSENIQ, Defendant. |
| Court | U.S. District Court — Southern District of New York |
In July 2021-in the midst of the global COVID-19 pandemic-Matthew Germain was working in a secure job that allowed him to work from home. He needed to do so because he suffered from a variety of ailments that made travel to, and for, work particularly dangerous for him. Nielsen Consumer LLC lured him to take a new position with the company, promising that he would not be required to travel in the new job. But shortly after he joined Nielsen, Mr. Germain was told that his job required that he travel-health conditions and Nielsen's prior commitments notwithstanding. Because Mr Germain was induced to leave his prior position by Defendant's false commitment that the job would not require travel, Defendants' motion to dismiss Plaintiff's claim for fraudulent misrepresentation is denied. And because Mr. Germain's health conditions prevented him from safely travelling from his home for work he has adequately pleaded that he was disabled. Therefore Defendant's motion to dismiss is DENIED IN PART and GRANTED IN PART.
a. Facts[1]
Mr. Germain has worked in market research for over 30 years. Third Amended Complaint (“Am. Compl.”), Dkt. No. 42, ¶ 10. His work included two stints at Nielsen Consumer LLC d/b/a NielsenIQ (“Nielsen”). Between 1993 and 1996, Mr. Germain worked as Nielsen's Director of Client Service. Id. He returned to work at Nielsen from 2005 through 2006 as its Director of Business Development. Id. This case concerns Mr. Germain's short-lived, and ill-fated third job at the company.
The opportunity for Mr. Germain to rejoin Nielsen arrived out of the blue. In July of 2021, just over a year into the global COVID-19 pandemic, Mr. Germain was working for a company named 1010Data in a senior role-as its Senior Director of Partnerships. On July 21, 2021, Mr. Germain received a LinkedIn message from Nick Lesser. Id. ¶ 9. Mr. Lesser was Nielsen's “Talent Acquisition Manager.” Id. In his message, Mr. Lesser asked Mr. Germain if he would be interested in taking on a new position at Nielsen as the company's Leader of U.S. Commercial Partnerships. Id. Mr. Germain was interested: he told Mr. Lesser that “he was willing to learn more about the opportunity with Nielsen.” Id. ¶ 12. Many discussions followed.
During those discussions, Mr. Germain “made it clear to Lesser that he was unable to travel during the pandemic due to several serious health conditions.” Id. ¶ 13. Mr. Germain “suffers from numerous disabilities[,] including [chronic obstructive pulmonary disease (‘COPB')], heart disease, cardiomyopathy, diabetes, and asthma, which make him particularly vulnerable to the Covid-19 virus.” Id. ¶ 14. Mr. Lesser repeatedly reassured Mr. Germain that “travel would not be necessary for the position.” Id. ¶ 15.
So Mr. Germain accepted an interview for the position. In August 2021, Mr. Germain was interviewed for the job by several senior staff members at Nielsen, including CRO Susan Dunn. Id. ¶ 16.[2] On September 1, Mr. Germain received an offer letter from Nielsen. Id. ¶ 17. The offer letter made clear that Mr. Germain's employment with Nielsen was “at-will.” Am. Compl. Ex. 3 at 2. As the letter described, the fact that he was an at-will employee “means either you or the company may voluntarily terminate your employment at any time.” Id.
Mr. Germain accepted the offer the week that he received it. Id. He also submitted his resignation letter to 1010Data. Id. 1010Data tried to persuade Mr. Germain to stay. Id. ¶ 24. But Plaintiff declined, telling them that he had already accepted the new position at Nielsen.
Mr. Germain alleges that he accepted the job with Nielsen “based on Lesser's assurances that he would not be required to travel.” Id. ¶ 19. And he details the fact that Nielsen was fully aware of his disabilities and that he was unable to the travel during the pandemic. Id. ¶ 20. Not only had he described his limitations to Mr. Lesser, as outlined above, but Mr. Germain also made a note of his health conditions on his application, and later, in his onboarding materials. Id. ¶ 25. The job description for his position did not include any reference to travel as a component of the position. Id. ¶ 21. Nor did his offer letter refer to a need to travel for the position. Id. ¶ 22. “Critical to Plaintiff's decision to accept the position were Lesser's assurances that travelling was not a necessary element of the role and that Plaintiff would not be required to travel.” Id. ¶ 23. According to the complaint, Mr. Germain's expectations that he would not need to travel to perform his job were dashed shortly after he began work.
Mr. Germain began working in his new job on September 29, 2021. Id. ¶ 27. Shortly thereafter, Julian Baldwin, Mr. Germain's supervisor, asked Mr. Germain to put together some materials for a two-day meeting in Chicago. Id. ¶ 29. Mr. Germain immediately told Mr. Baldwin that he was uncomfortable traveling due to his severe health conditions. Id. ¶ 31. Mr. Baldwin then asked if Mr. Germain would “be more comfortable travelling to the New York office than the Chicago office ....” Id. ¶ 32. Mr. Germain-who resided in Danbury, Connecticut-responded that “yes, the New York office would be better.” Id. ¶¶ 1, 32.
Mr. Germain and his team met in Nielsen's New York office on December 7, 2021 to prepare for a presentation to the CRO the next day. Id. ¶ 33. Mr. Baldwin was pleased. But after the presentation to the CRO in the New York office the following day, Mr. Baldwin told Mr. Germain that the presentation had not gone well. Id. ¶¶ 35-36. The issue, Mr. Germain alleges, was not the substance of the presentation, but Nielsen's unhappiness with his inability to travel. Id. ¶ 40.
Mr. Baldwin told Mr. Germain that he required him to be “open to traveling.” Id. ¶ 36. “He explained that when he had told the CRO, Susan Dunn, that Plaintiff expressed concerns about travelling, she said that she didn't think Plaintiff was right for the job.” Id. Mr. Baldwin baldly told Mr. Germain that for his work “travel is expected.” Id. ¶ 37.
On December 10, 2021, after his conversation with Mr. Baldwin, Mr. Germain visited his cardiologist. Id. ¶ 42. The cardiologist reiterated his instruction that Mr. Germain “must avoid travel during the ongoing pandemic.” Id. Three days later, on December 13, 2021, Mr. Germain told Mr. Baldwin that his doctor had recommended that he avoid travel. Id. ¶ 43.
Before Mr. Germain told Mr. Baldwin about his medical conditions and related travel limitations, Mr. Baldwin had given Plaintiff nothing but positive feedback about his job performance. Id. ¶ 41. After his December 13 conversation with Mr. Baldwin, however, “Plaintiff suddenly began to receive negative feedback about his performance.” Id. ¶ 44. Mr. Germain asserts that he requested an accommodation for his disability, and that, immediately afterward, Mr. Baldwin wrote Mr. Germain that he was “not currently meeting [Baldwin's] expectations for the role.” Id. ¶ 45 (emphasis omitted). Mr. Baldwin's email went on: “I am concerned that 2022 and 2023 are only going to be more intense and faster paced and I am concerned at the pressure this is going to place on us both.” Id. ¶ 49 (emphasis omitted).
Mr. Germain responded to Mr. Baldwin's email. He rebutted “the sudden and premature determination that Plaintiff was not meeting his goals by explaining in detail how in in fact had been making significant progress toward each of his goals.” Id. ¶ 50. Mr. Germain also submitted a request to Nielsen's human resources manager for an accommodation that would exempt him from the need to travel from his home for work. Id. ¶ 51. He attached a note from his cardiologist to the note. Id. Nielsen's human resources officer stated that she would review the request, but never responded to the application for an accommodation. Id. ¶ 52.
Instead, the next thing that Mr. Germain saw on this topic was an email from Mr. Baldwin, asserting that “none of my feedback on your performance has anything to do with your health issues (despite the fact that your inability to travel connected to these issues is new news to me.)” Id. ¶ 53 (emphasis added). Mr. Germain believed that the emphasized comment was false: after all, “Plaintiff had directly informed Baldwin of his medical disabilities and travel limitation in October, 2021.” Id. ¶ 54. And, of course, Mr. Germain had informed Mr. Lesser of his constraints during the recruitment and onboarding process.
On January 23, 2022, Mr. Germain's was terminated as a result of his allegedly “subpar” performance. Id. ¶ 58. He had been on the job for less than four months. After he was fired, Mr. Germain tried to find another job. Id. ¶ 60. But he has since found that hiring professionals are “unwilling to overlook the brevity of his employment . . . at Nielsen.” Id. “Plaintiff's less than four-month employment period at Nielsen had damaged his career prospects immeasurably.” Id. b. Procedural History
Mr. Germain filed a charge with the Equal Employment Opportunity Commission (the “EEOC”) on February 4, 2022. Dkt. No. 55, Ex. 1. On April 22, 2022, the EEOC wrote counsel for Mr. Germain regarding the charge. In its letter, the EEOC wrote the following:
The Commission has reviewed all the circumstances of this case to ascertain whether we will be able to complete our administrative process within 180 days. We have concluded that we will not be able to complete our administrative process within the allotted 180 days since your client's charge was filed, and we are issuing...
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