Summary
In Poppo, the court issued an order delaying the production of certain audiotapes to prevent the defendant's witnesses from altering their deposition testimony to conform to their recorded statements.
Summary of this case from Costa v. AFGO Mech. Servs., Inc.Opinion
00 Civ. 4165 (HB)
April 16, 2001
OPINION ORDER
Plaintiff Loisann Poppo brings this action against her former employer, Aon Risk Services, for pregnancy discrimination and retaliation pursuant to New York State Human Rights Law and New York City Human Rights Law, violation of the Family Medical Leave Act, 29 U.S.C. § 2601 § 2614 et seq., and for recovery of a bonus payment pursuant to New York State Labor Law §§ 190, 193, 198 et seq. and New York State common law. Aon has moved for summary judgment on all of plaintiff's claims. For the following reasons, defendant's motion is granted as to plaintiff's claims for payment of a bonus but denied with respect to the remainder of plaintiff's claims.
I. Plaintiff's Claims for Pregnancy Discrimination and Violations of the FMLA
Loisann Poppo began working for the defendant in 1991 as an Executive Assistant to Robert Meister. Meister is the Vice Chairman of Aon and headed the "Meister Team," a highly successful team that sells insurance for Aon. The Meister Team was composed of three executives and three executive assistants, including the plaintiff. Plaintiff's position encompassed a broad range of duties including interacting with Aon clients, arranging meetings, and drafting business correspondence. Plaintiff also spent a significant percentage of her time managing Meister's and his family's personal affairs including making travel arrangements, managing checking accounts, and paying bills. Plaintiff often worked overtime including nights and weekends. As Meister's assistant, plaintiff was the highest paid Executive Assistant in the New York office making approximately $120,000 per year, which included a substantial bonus. Behind these basic facts lie a whole series of material factual disputes. I will just name a few.
Plaintiff alleges that after she informed Meister of her pregnancy he became increasingly verbally abusive and insulting to her and made derogatory comments about her pregnancy, some of which were recorded. In response, defendant contends that Meister was always a demanding boss who had a history of making these types of comments and that he was no more insulting to plaintiff or demanding of her after plaintiff told him of her pregnancy. The tapes between the plaintiff and Meister provide at least partial support for her allegations as the recordings include a conversation in which Meister expresses his doubt that plaintiff would be able to travel to Florida on business after she has a baby.
Plaintiff alleges that Meister hired Lisa Lewis to permanently replace plaintiff in her role as Executive Assistant to Meister and that Lewis in fact did replace her even before plaintiff began her maternity leave. But defendant contends that Meister's hiring of Lewis was not related to plaintiff's pregnancy and did not impact her role at Aon.
The parties also dispute whether plaintiff would have had a position waiting for her if she had returned to Aon and what position that would have been. Plaintiff alleges that, as she had been effectively replaced prior to taking her leave, she knew that there was either no position for her or no position equal to her former one. Indeed, it appears that she was told that her "new" job would be different and pay less. Defendant responds that plaintiff would have had the same or an equivalent position upon her return. Defendant's witnesses are not in accord over what that position would have been or what it would have paid.
Given the significant dispute as to the facts, summary judgment for plaintiff's claims of pregnancy discrimination and FMLA violations meet the same fate. I am simply unable to conclude, as a matter of law, that Aon did not create a hostile work environment as a consequence of her pregnancy and retaliate against her for complaining. I am similarly unable to conclude without a trial that defendant did not violate the FMLA when it hired Lewis and, allegedly, constructively discharged the plaintiff. Therefore, summary judgment on these claims is denied.
II. Plaintiff's Claim to Recover Her Bonus
Plaintiff seeks recovery of a bonus pursuant to New York Labor Law or, in the alternative, under a theory of unjust enrichment or quantum meruit.
New York Labor Law
The New York Court of Appeals has recently held that an employee's discretionary bonus compensation is not included in the definition of "wages" under the New York Labor Law. See Truelove v. Northeast Capital and Advisory, 738 N.E.2d 770, 771-72 (Ct.App. 2000). The court also enforced a company's policy of not paying a bonus to an employee who is no longer employed with the company. Id. at 773 ("Here, the bonus plan explicitly predicated the continuation of bonus payments upon the recipient's continued employment status. Because plaintiff resigned shortly after he received his first quarterly payment he was not entitled to receive the remaining three payments."). Given this clear precedent, defendant's motion for summary judgment on plaintiff's claims under New York Labor Law is dismissed. Unjust Enrichment/Quantum Meruit
It appears that plaintiff recognized the weakness of this claim by not addressing it in her response brief and, therefore, waiving it.
Plaintiff also seeks recovery pursuant to two equitable doctrines, quantum meruit and unjust enrichment. For our purposes, both remedies require that plaintiff show that the defendant was enriched at the plaintiff's expense and that the circumstances were such that equity and good conscience require the defendant to make restitution. See Thayer v. Dial Indus. Sales, Inc., 85 F. Supp.2d 263, 174 (S.D.N.Y. 2000). As a part of the second prong, the plaintiff must also show that she has a "reasonable expectancy of receiving compensation." International Paper Co. v. Suwyn, 978 F. Supp. 506, 513 (S.D.N.Y. 1997).
Neither element is satisfied. The first is inapplicable to this fact pattern and as for the second, since the defendant had a policy of not awarding bonuses to former employees, plaintiff had no reasonable expectation of receiving her bonus once she was no longer employed by the defendant. Id. Therefore, this claim must be dismissed.
CONCLUSION
For the foregoing reasons, defendant's motion is granted as to plaintiff's claim for payment of a bonus but denied as to plaintiff's remaining claims since material issues of fact abound. A jury trial will commence on May 21, 2001 at 9:30 a.m. Fully briefed motions in limine, objections to exhibits, proposed jury charges and voir dire must be received in Chambers no later than May 14, 2001.