Hefti v. Brand Union Co.
| Citation | 2014 NY Slip Op 31714 (U) |
| Decision Date | 02 July 2014 |
| Docket Number | Index No.: 150832/2014,Motion Seq. No. 002,Motion Seq. No. 001 |
| Court | United States State Supreme Court (New York) |
| Parties | AMY HEFTI, Plaintiff, v. THE BRAND UNION COMPANY, INC. d/b/a THE BRAND UNION NY, WPP, and DON FORRINGER, Defendants. |
MEMORANDUM DECISION
In this action for wrongful termination, defendant Don Forringer ("Forringer") moves pursuant to CPLR 3211(a)(7) to dismiss the complaint (motion sequence 001).1 Defendant The Brand Union Company, Inc. ("TBU") moves, in limine, to limit damages sought in the complaint based on "after-acquired evidence" demonstrating wrongful conduct in breach of plaintiff Amy Hefti's ("plaintiff) fiduciary and contractual obligations to TBU (motion sequence 002).2
Plaintiff is a former group account director at TBU, a global branding strategy and management agency. She worked at TBU from approximately May 15, 2013 until her termination on November 15, 2013.
Plaintiff has had clinical depression throughout her adult life. She sees a psychiatrist andregularly takes Lexapro (an anti-anxiety medication) to manage her condition.
During the course of her employment, plaintiff directed the largest worldwide advertising campaign TBU had ever launched for the company's largest client (a certain bank). Throughout her employment, plaintiff received excellent feedback from her superiors, including TBU's CEO. She was never the subject of disciplinary action before the events giving rise to this action.
On or about September 19, 2013, plaintiff's psychiatrist diagnosed her with bipolar disorder, and prescribed her two anti-psychotic medications that she had never before taken. Immediately following ingestion of the new medications, plaintiff began to suffer from adverse reactions, including tremors and insomnia. These symptoms continued for a week, which forced plaintiff to work from home over the week of September 23-28, 2013. Plaintiff received explicit permission from defendants to take sick leave during that time; in any event, she responded in a timely manner to her work email and remotely phoned into conference calls.
Plaintiff returned to work on September 30, 2013, and offered a physician's note to TBU to explain the necessity for her leave. However, Forringer - the CFO of TBU's United States branch -- told her that such a note was not necessary.
On or about October 1, 2014, Forringer and Diane Epstein, TBU's executive director and head of the Human Relations department, called plaintiff into a meeting regarding her medical condition. During the meeting, they pressured her to disclose personal medical information about her condition even though plaintiff repeatedly told them she wished to keep that information private. Also, Forringer told her that she did not "have to be here"; in other words, that plaintiff could leave TBU due to her condition. In response, plaintiff affirmed her commitment to her job and desire to remain at TBU.
Approximately two weeks later, plaintiff was again called in by Forringer for a meeting and asked to reveal information about her condition. Fearing that her employment would be in jeopardy if she refused, plaintiff explained that she had been diagnosed with bipolar disorder, and that her prior leave was taken due to an adverse reaction to improperly-prescribed medication. Again, plaintiff affirmed her commitment to TBU and expressed that she was "ready to work." She also asserted that she did not expect to take any additional medical leave in the future as a result of her diagnosis, and that she was capable of fully performing the duties of her position. In plaintiff's view, the meeting ended amiably, and the issue was resolved. She was given no reason to believe that her job was at risk or that she was on any kind of probation.
Nevertheless, on November 15, 2013, plaintiff was called into Forringer's office, and "he fired her." The stated reason for her termination was her "unprofessional" behavior. This occurred even though plaintiff had never received a complaint, write-up or comment from superiors or co-workers regarding any alleged unprofessional behavior. Also, plaintiff does not allege that her medical condition or medication caused her to engage in any of the above-alleged conduct that resulted in the given reasons for her termination.
Plaintiff commenced this action based on discrimination regarding her disability under the New York State Human Rights Law §§ 290 et seq. ("NYSHRL") and New York City Human Rights Law §§ 8-101 et seq. ("NYCHRL").
TBU, in response, alleges that it terminated plaintiff's employment for unprofessional behavior, including lying to her superiors, trying to evade debt obligations to various financial institutions by giving them contact information of a former co-worker in lieu of her own, holding personal conversations about her nanny and falling asleep during work-related conference calls.
In the moving papers, Forringer asserts that he cannot be held individually liable in this case because there are no allegations that he has an ownership interest in TBU or has any power to do more than carry out the personnel decisions made by others. Moreover, all claims against Forringer must fail because the complaint fails to allege that he acted on behalf of TBU in hiring, firing, paying, or in administering the terms, conditions, or privileges of plaintiff's employment.
At most, the complaint alleges that Forringer was the one to notify plaintiff that her employment was being terminated due to her allegedly unprofessional behavior. The complaint does not allege that Forringer was acting on behalf of TBU when he informed her of her termination, that he made the decision to terminate her, or, even if he was the decision maker, that plaintiff's alleged disability was any factor in his decision.
In opposition, plaintiff argues that individual liability lies where the complaint alleges that the defendant aided and abetted discrimination; in other words, actually participated in the conduct giving rise to the discrimination claim. The person alleged to have engaged in the discrimination does not even have to possess power to hire and fire; all that is necessary is whether he participated directly in the discrimination.
The complaint alleges one specific act of discrimination: plaintiff's termination as a result of her previous misdiagnosis of bipolar disorder. It was Forringer himself who committed the discriminatory act by firing plaintiff, as plaintiff was called into his office and terminated by him.
Further information in the complaint supports Forringer's active role in plaintiff's employment. For example, he discussed with plaintiff her medical leave and assured her that shedid not have to provide a physician's note regarding her leave. Also, Forringer called a meeting with human resources regarding plaintiff's medical condition, at which he stated that plaintiff "did not have to be here," thus encouraging her to leave TBU.
The caselaw cited by Forringer does not control the scenario here, as it is irrelevant how high up Forringer is on the corporate ladder, as plaintiff alleged that Forringer himself actively participated in the discrimination by terminating her, at the least. On this note, liability under NYSHRL § 296(6), which imposes liability upon an employee who aids and abets the employer's discrimination is distinguishable from direct liability under NYSHRL § 296(1) against "employers." Thus, plaintiff stated a claim under NYSHRL § 296(6) and NYCHRL § 8-107(6).
In reply, Forringer contends that plaintiff cannot re-draft her complaint via her opposition papers to claim that Forringer made the decision to terminate her and that Forringer aided and abetted discriminatory conduct by TBU. Because such allegations are not actually within the complaint, the court should not consider them in opposition and in adjudicating the motion.
Plaintiff further concedes that she failed to plead that Forringer has an ownership interest in TBU; had authority to terminate plaintiff; had the power to make personnel decision at TBU; and was acting on behalf of TBU when he informed her of her termination. And, plaintiff has not sought to amend her complaint to rectify these omissions.
Additionally, plaintiff's potential damages are not made any different or greater by having Forringer remain as a named defendant in the case, as plaintiff's complaint against TBU survives this motion. Thus, plaintiff will not suffer any prejudice if the court grants Forringer's motion.
Essentially, plaintiff alleges that Forringer is a proper individual defendant under the NYSHRL and NYCHRL simply because he informed her that TBU had decided to terminate heremployment. However, she does not cite any cases in support of this overly broad interpretation of the law. Under plaintiff's theory, virtually every employee in New York could be subject to individual liability if they speak to a colleague about employment-related actions; however, that is clearly not what the NYSHRL or NYCHRL provide or intend.
TBU argues that even assuming TBU is liable to plaintiff, plaintiff's damages must be limited under the "after-acquired evidence" doctrine to those damages allegedly suffered between her termination on November 15, 2013, and TBU's discovery on February 26, 2014, of her disloyal and wrongful conduct which took place during her employment.
TBU alleges that documentation shows that plaintiff engaged in surreptitious communications using her work email account with a senior executive of a competitor agency (the "Competitor") regarding a proposal to leverage her network and contacts (that she serviced on behalf of TBU) in the hopes of creating a new partnership with herself and the Competitor. TBU further claims that plaintiff lied to TBU about her whereabouts and traveled out-of-state to the...
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