SCHLENGER v. Fid. EMPLOYER Serv. Co. LLC.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
PartiesSUSAN AMY SCHLENGER, Plaintiff, v. FIDELITY EMPLOYER SERVICES COMPANY, LLC, IBM CORPORATION, and METROPOLITAN LIFE INSURANCE COMPANY, Defendants.
Docket Number09-CV-3986 (CS)
Decision Date31 March 2011

OPINION TEXT STARTS HERE

DECISION AND ORDER

Appearances:

Nicole B. Albano

Lowenstein Sandler, PC

Roseland, New Jersey

Counsel for Plaintiff

Alyson M. Weiss

Tal E. Dickstein

Loeb & Loeb LLP

New York, New York

Counsel for Defendant Fidelity Employer Services Company, LLC

Allan S. Bloom

Emily R. Pidot

Erin E. Laruffa

Paul, Hastings, Janofsky & Walker LLP

New York, New York

Counsel for Defendant IBM Corporation

Michael H. Bernstein

John T. Seybert

Sedgwick, Detert, Moran & Arnold LLP

New York, New York

Counsel for Defendant Metropolitan Life Insurance Company Seibel J.

Before the Court are several motions. First, Defendant Metropolitan Life Insurance Company ("MetLife") moves for summary judgment dismissing the First, Second, Third, and Fourth Causes of Action in Plaintiff Susan Schlenger's Amended Complaint, (Doc. 12), the only causes of action that pertain to MetLife, and for summary judgment on MetLife's Counterclaim. (Doc. 42.)

Second, Defendant Fidelity Employer Services Company ("Fidelity") moves for summary judgment dismissing the Second and Fourth Causes of Action in Plaintiffs Amended Complaint, the only causes of action that pertain to Fidelity, and for an award of its attorneys' fees and costs. (Doc. 47.)

Third, Defendant International Business Machines Corporation ("IBM") moves to dismiss the Fifth and Sixth Causes of Action in Plaintiffs Amended Complaint, the only causes of action that pertain to it, for failure to state a claim pursuant to Federal Rule of Civil Procedure 12(b)(6), and failure to plead with particularity pursuant to Federal Rule of Civil Procedure 9(b). (Doc. 32.)

Plaintiff Susan Amy Schlenger opposes all three motions, (Docs. 36, 52, 55), and cross-moves for summary judgment on her claims against MetLife, and for an award of her attorney's fees and costs. (Doc. 58).

For the reasons stated herein, MetLife's Motion for Summary Judgment is GRANTED, Plaintiff's Cross-Motion for Summary Judgment on her claims against MetLife is DENIED; Plaintiff's motion for an award of attorney's fees and costs is DENIED; Fidelity's Motion for Summary Judgment is GRANTED; Fidelity's motion for an award of attorney's fees and costs is DENIED; and IBM's Motion to Dismiss is GRANTED, but Plaintiff has leave to amend as to her claims against IBM only.

I. BACKGROUND

For purposes of deciding IBM's Motion, I assume the facts (but not the conclusions) as alleged in the Amended Complaint to be true, and for purposes of deciding MetLife's and Fidelity's Motions for Summary Judgment, as well as Plaintiff's Cross-Motion for Summary Judgment, the following facts are undisputed, except where noted. While I will only briefly summarize the facts, I have read and considered all of the allegations in the Amended Complaint, and for purposes of the summary judgment motions, the materials provided in connection with those motions, and I assume the parties' familiarity with them.

Plaintiff is an attorney who previously resided and practiced in Massachusetts. (Am. Compl. ¶ ¶30, 31.) She was recruited by representatives of IBM starting in October 2003 to work in its Business and Government Relations Division as a Senior Contracts Professional at its facility in Yorktown, New York.1 (Id. at ¶ 32.) Plaintiff alleges that during the recruitment process, IBM representatives represented to her that if she worked for IBM, she would receive "variable pay constituting an average 10% of her base salary annually," plus a "robust relocation package that would allow her to relocate her family from Massachusetts to New York to a home suitable to her needs." (Id. at ¶ 33.) Plaintiff claims that based on these representations she decided to accept IBM's offer, (id. at ¶ 34), and relocate her family to New York, (id. at ¶ 35), but ran into difficulties with the relocation allegedly because of IBM's failure to provide her with the "promised relocation plan," inasmuch as the allegedly revised package she received "had no provision for an equity advance to provide a down payment on a new house," (id. at ¶ 35-36). As a result of this delay and revision, Plaintiff states that by the time the corrected plan was issued in April 2004, she had expended approximately $15,000 for temporary housing, (id. at ¶ 37), lost the opportunity to bid on a suitable house for her family, (id. at ¶ 35), and was ultimately compelled to bid on a "more expensive house that failed to meet many of her criteria and that was located 20 miles further away from work," (id. at ¶ 38).

Plaintiff states that she complained of her frustrations with the relocation process to her then-manager, Ronald Rinner, who had also been her "hiring manager," and his director, Joyce Koontz, who had "dined Ms. Schlenger during the recruiting process and confirmed the commitments made by Mr. Rinner." (Id. at ¶ 40.) Plaintiff contends that she continued to have significant out-of-pocket expenses related to selling her prior residence (a farm) because the agent provided by IBM was inexperienced selling farm properties, and that by the time of her relocation from the temporary apartment in which she had been residing around late July or early August 2004, Ms. Schlenger had spent nearly $30,000 in rent and associated costs for the apartment, and was "forced to spend an additional $15,000 on out-of-pocket transportation and travel expenses, child care expenses, and substitute labor," an amount in excess of the $11,000 lump sum relocation package that IBM had given her. (Id. at ¶ 43.)

In the meantime, Plaintiff had started working at IBM on December 1, 2003, as a Senior Contracts Professional in the Contracts and Negotiations Division. (Id. at ¶ 44.) Plaintiff maintains that during her time at IBM she "possessed a stellar work record and . . . had received exceptionally good performance ratings," but despite this never received the 10% variable pay promised to her during the hiring process or any other compensation increases whatsoever. (Id. at ¶ 46.)

Plaintiff's medical problems began around May 30, 2005, when she alleges that she began to suffer "excruciating and intractable back pain." (Id. at ¶ 48.) She was admitted to the hospital on or about May 31, 20052 and treated with pain medication. (Id.; ML 56.1 ¶ 8; Pl.'s 56.1 (ML) ¶ 8; Hallford Decl. Ex. B at SCH 652.)3 Plaintiff advised the doctors at Vassar Brothers Hospital of various past injuries, including neck and residual spinal problems from a car accident in 1969, and injuries from falling from a horse in and around 1995. (ML 56.1 9-10; Pl.'s 56.1 (ML) ¶¶ 9-10.) Plaintiff had a history of back complaints, and a prior history of depression. (SCH 652-55; ML 56.1 ¶¶ 12-13; Pl.'s 56.1 (ML) ¶¶ 12-13.)

After this first hospitalization she requested and was denied a more flexible work schedule. (Am. Compl. ¶ 49.) Plaintiff was hospitalized a second time in November 2005, at which time she was diagnosed with progressive Facet disease ("a disorder of certain joints associated with the spine"). (Id. at ¶ 51.) Plaintiff also has been diagnosed with progressive cervical stenosis, chronic intractable back pain, related right shoulder weakness and pain, a Tarlov cyst (a fluid-filled sac in spinal canal), and coccydynia (pain of the tailbone). (Id. at ¶ ¶ 51, 52.) At that time, "with management's approval and endorsement," Plaintiff began to work from home, an option apparently available to any employee regardless of health. (Id. at ¶¶ 53, 54.) Plaintiff alleges that she continued her work from her home, taking frequent, intermittent rest when needed in light of her condition and her medications. (Id. at ¶¶55, 60.) Plaintiff contends that she maintained fifty-plus hour work weeks during this period and "was able to perform at a level similarly productive to her pre-June 2005 levels," but "was unable to successfully maintain a course of prescribed medication or treatment to address her pain levels due to IBM's continued refusal to allow her genuine flex hours." (Id. at ¶¶ 58, 60.)

In 2005 and 2006, Plaintiff submitted Medical Treatment Reports ("MTR's") to IBM. Plaintiff's first MTR was submitted by Daniel Richman, M.D. (ML 56.1 ¶ ¶ 14-16; Pl.'s 56.1 (ML) ¶ ¶ 14-16; SCH 723.) The remainder of Plaintiff's MTRs were submitted by Ricardo Cruciani, M.D., Ph.D. (ML 56.1 ¶ 17; Pl.'s 56.1 (ML) ¶ 17; SCH 722, 724-29.) Dr. Cruciani diagnosed plaintiff with degenerative disc disease ("DDD"), Facet's disease, cervical stenosis and spondylosis.4 (ML 56.1 ¶ 18; Pl.'s 56.1 (ML) ¶ 18.)

Plaintiff was hospitalized for a third time in mid-March 2006 for further diagnosis and treatment, and upon discharge continued to work from home. (Am. Compl. UU 61, 62.) In August 2006, Dr. Cruciani requested that IBM provide a proof-reader to assist plaintiff in reviewing her work for typographical errors. (ML 56.1 ¶ 24; Pl.'s 56.1 (ML) ¶ 24.) Plaintiff alleges that beginning around mid-May 2006, her supervisor, Gary Lipson, commenced a "six month harassment campaign" that involved "an unusual and uncustomary review process out of yearly order and out of synch with IBM's procedural precedent." (Am. Compl. ¶¶ 63, 64.)

According to Plaintiff, the culmination of this alleged campaign was "an arbitrary determination" by Lipson that Plaintiff "was too acutely 'ill' to work given her symptoms related to global spinal disorders and other conditions." (Id. at ¶ 63.) Plaintiff maintains that as a result she was effectively dismissed on November 14, 2006, and did not return to work after that date. (Id. at ¶ ¶ 63, 67.) Specifically, Plaintiff claims that she was "forced out" of her job in November 2006, and that her supervisor claimed that Plaintiff had "performance problems" and felt that she would "not get better." (ML 56.1 ¶¶ 26-27; Pl.'s...

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