PITMAN, United States Magistrate Judge.
This is an action for breach of contract and violation of Article 6 of the New York State Labor Law, N.Y. Labor L. §§ 190 et seq., arising out of plaintiff Berkeley S. Scott's employment with defendant Harris Interactive, Inc. ("Harris Interactive") from approximately late May 2009 through mid-March 2010. Harris Interactive has asserted a counterclaim for breach of contract against plaintiff. The parties have consented to my exercising plenary jurisdiction pursuant to 28 U.S.C. § 636(c).
By notice of motion dated April 15, 2011 (Docket Item 13), Harris Interactive moves for summary judgment (1) dismissing plaintiff's breach of contract and Labor Law claims and (2) granting its breach of contract counterclaim. Plaintiff opposes Harris Interactive's motion and cross-moves for summary judgment (1) granting his breach of contract and Labor Law claims and (2) dismissing Harris Interactive's breach of contract counterclaim (Docket Item 22).
For the reasons set forth below, Harris Interactive's motion for summary judgment is granted in its entirety and plaintiff's cross-motion for summary judgment is denied in its entirety.
Plaintiff's complaint alleges the following facts. On April 27, 2009, Harris Interactive offered plaintiff, in writing, the position of "Senior Vice President, Global Accounts & Business Development" (Complaint, dated June 28, 2010 ("Compl."), (Docket Item 1), ¶ 8). The letter making the offer "set [] forth the terms, conditions, and benefits of [plaintiff's] employment" which included, among other things, the following: (1) a salary of
As Senior Vice-President of Global Accounts and Business Development at Harris Interactive, plaintiff "was responsible for creating and implementing new programs and business models to increase Harris Interactive's domestic and global business" (Compl. ¶ 16). In this position, plaintiff "recruited [and supervised] sales teams for six industry sectors covered by Harris Interactive" and "created a Global Account Management (GAM) Program, designed to coordinate Harris Interactive's larger accounts worldwide" (Compl. ¶¶ 17-18). However, plaintiff alleges that in or about November 2009, Harris Interactive began to unilaterally diminish his duties and "assigned [him] the additional duties of an individual contributor/seller, a position for which [he had] not [been] hired" (Compl. ¶¶ 20-21). Notwithstanding this, plaintiff alleges that he "retained his title, senior leadership responsibilities, global responsibilities, and all compensation terms set forth in his [April 27, 2009 offer letter]" (Compl. ¶ 25).
In approximately mid-January 2010, plaintiff alleges that he discovered Harris Interactive had postponed the formal launch of the six global accounts and sales teams that he had structured (Compl. ¶ 26). Additionally, at around the same time, plaintiff states that he received an e-mail from Frank Forkin, the former President of Client Services in North America at Harris Interactive, "in which Forkin acknowledged that [plaintiff's] `role has changed' from what he was hired to do" (Compl. ¶ 27). Then, in late January 2010, plaintiff alleges that he was informed by Till that another Harris Interactive employee would be taking over the launch of the global accounts (Compl. ¶ 28).
On or about February 19, 2010, plaintiff states that he received an e-mail from Till informing him that a time was being scheduled to discuss his changed job responsibilities as well as "appropriate compensation" (Compl. ¶ 29). This conversation took place on or about March 4, 2010; plaintiff alleges that he was informed that he had been "demoted to the title of Senior Vice President [of] Account Management" and that his adjusted salary would be $150,000.00 per year (Compl. ¶¶ 30-32). The reduced salary rate would become effective on March 15, 2010 (Compl. ¶ 35). Plaintiff ceased working for Harris Interactive on March 16, 2010 (see Compl. ¶¶ 37-38).
Plaintiff states that he performed his contractual obligations under the agreement with Harris Interactive and that he did not agree to the company's "unilateral changes" to his employment (Compl. ¶ 34). Plaintiff also states that "Harris Interactive's unilateral removal of [his] job duties, change in his title, and $70,000 reduction in his salary were intolerable changes to [his] working conditions such that Harris Interactive
Based on the above facts, plaintiff presently seeks: (1) six months of severance benefits, (2) six months of continued healthcare benefits, or their cash value equivalent, (3) the unpaid portion of his salary for his final two days of work at the "proper contractual rate" (i.e., at $220,000.00 instead of $150,000.00) and (4) liquidated damages, attorneys' fees, costs, disbursements and prejudgment interest (Memorandum of Law in Support of Plaintiff's Cross-Motion for Summary Judgment and in Opposition to Defendant's Motion for Summary Judgment, dated May 10, 2011 ("Pl.'s Mem."), (Docket Item 24), 2; see also Compl. ¶¶ 54, 64).
In its Answer to the Complaint (Answer, dated July 27, 2010 ("Answer"), (Docket Item 5)), Harris Interactive has asserted a counterclaim for breach of contract. In connection with Harris Interactive's offer letter dated April 27, 2009, plaintiff received a $15,000.00 signing bonus (Answer ¶¶ 43-44). The letter provided, however, that in the event plaintiff either voluntarily terminated his employment or was terminated for cause prior to the first anniversary date of his employment, the signing bonus would have to be repaid to Harris Interactive (Answer ¶ 43). Based on the facts set forth above, Harris Interactive alleges that plaintiff voluntarily terminated his employment prior to the first anniversary date of his employment, and, thus, is obliged to reply his $15,000.00 signing bonus (Answer ¶¶ 45-49).
Both parties have submitted Local Civil Rule 56.1 statements. I set forth here the material facts that the parties contend have been established either through discovery or by affidavits submitted in connection with the pending motions, noting the particular disputes that exist between the parties.
By letter dated April 27, 2009, Harris Interactive offered plaintiff employment with the company subject to the express provision that plaintiff would be an "at-will" employee
(Def.'s St. of Mat. Facts ¶ 12, citing Till Aff. ¶¶ 13-15, Affidavit of Marc H. Levin in Support of Motion for Summary Judgment, sworn to on Apr. 15, 2011 ("Levin Aff."), (Docket Item 16), ¶¶ 2-4 and Affidavit of Frank Forkin, sworn to on Mar. 24, 2011 ("Forkin Aff."), (Docket Item 18), ¶¶ 3-5). Plaintiff reported to Forkin, although Till and other individuals at Harris Interactive also tracked plaintiff's progress (Def.'s St. of Mat. Facts ¶ 13, citing Till Aff. ¶¶ 16-23 and Forkin Aff. ¶ 3).
Harris Interactive contends, however, that plaintiff's performance in his leadership and managerial roles at Harris Interactive "lagged from early on in his tenure...." (Def.'s St. of Mat. Facts ¶ 14, citing Till Aff. ¶¶ 16-21 and Forkin Aff. ¶¶ 6-7, 13). For example, Harris Interactive states that "[p]laintiff did not lay the administrative groundwork for the Business Development Team in a timely manner, failing to assign accounts to individuals and groups or develop sales targets until well after he had started with Harris"
With respect to "the formation of the six Global Account teams," Harris Interactive states that one of plaintiff's superiors "was unable to recall any actions at all taken by [p]laintiff with respect to this aspect of his duties"
Finally, with respect to plaintiff's initial job performance, Harris Interactive states
Because of the foregoing, Harris Interactive began to reduce plaintiff's job responsibilities in late 2009, and by mid-January 2010, plaintiff was not performing the job responsibilities for which he had originally been hired (Def.'s St. of Mat. Facts ¶¶ 32-33, citing Exs. G, H, I to Def.'s St. of Mat. Facts, Forkin Aff. ¶¶ 12, 15 and Till Aff. ¶ 22). Harris Interactive states that comments made by Forkin to plaintiff concerning the changes in his job responsibilities "seemed to [Forkin] to be well-received"
As a result of the changes to plaintiff's job responsibilities, Harris Interactive states that it determined plaintiff's salary "needed to be reduced and his other compensation restructured" because plaintiff was performing an individual contributor/seller role as opposed to a management-level leadership role (see Def.'s St. of Mat. Facts ¶¶ 34-35, citing Till Aff. ¶¶ 33-36, Levin. Aff. ¶ 4, Forkin Aff. ¶ 16 and Terhanian Aff. ¶¶ 16-17). Plaintiff, Forkin, Till and Marc Levin (Harris Interactive's Executive Vice-President, General Counsel and Corporate Secretary) discussed these changes with plaintiff on or about March 4, 2010 during a conference call (Def.'s St. of Mat. Facts ¶ 42, citing Ex. A to Def.'s St. of Mat. Facts and Levin Aff. ¶ 4). In pertinent part, plaintiff was informed during this call that (1) his title would be changed to reflect his new role at the company and (2) his salary would be reduced to $150,000.00 per year effective March 15, 2010 (Def.'s St. of Mat. Facts ¶ 43, citing Exs. L and M to Def.'s St. of Mat. Facts and Till Aff. ¶¶ 37-38). Plaintiff was told to consider the changes
On March 8, 2010, plaintiff sent Levin an e-mail, stating that he was "`not able to accept'" the revised terms and conditions of his employment with Harris Interactive and that he was requesting his severance pay (Def.'s St. of Mat. Facts ¶ 50, citing Ex. M at 7-8 to Def.'s St. of Mat. Facts and Levin Aff. ¶ 7). Levin responded to plaintiff that the severance provision in his employment agreement did not apply because he was not being terminated by Harris Interactive
Plaintiff e-mailed Levin again on March 10, 2010 and stated that he believed Harris Interactive owed him severance pay and that the company was in breach of contract, though he also asked for "`clarity'" about his responsibilities and reporting going forward
On March 12, 2010, plaintiff e-mailed Levin and again "demand[ed] ... severance [pay] and [asserted] a complaint that he was being subjected to conditions that no other Harris [Interactive] employee was subjected to" (Def.'s St. of Mat. Facts ¶ 55, citing Ex. M at 2-3 to Def.'s St. of Mat. Facts). Levin responded to plaintiff's e-mail shortly thereafter, again asking plaintiff to confirm whether he wanted to continue working at Harris Interactive by March 15, 2010
On March 15, 2010, plaintiff responded to Levin's email stating that he had provided Till with an activity report the previous Friday and that "so long as I remain employed by Harris [Interactive], I shall perform the duties assigned"
The standards applicable to a motion for summary judgment are well-settled and require only brief review.
Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir.2004); accord Jeffreys v. City of New York, 426 F.3d 549, 553-54 (2d Cir.2005); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir.1994).
"Material facts are those which `might affect the outcome of the suit under the governing law,' and a dispute is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Coppola v. Bear Stearns & Co., 499 F.3d 144, 148 (2d Cir.2007), quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); accord McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202 (2d Cir. 2007). "`[I]n ruling on a motion for summary judgment, a judge must ask himself not whether he thinks the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [non-movant] on the evidence presented[.]'" Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 788 (2d Cir.2007), quoting Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 298 (2d Cir. 1996).
Lucente v. Int'l Bus. Machs. Corp., 310 F.3d 243, 253-54 (2d Cir.2002) (citations omitted); see also Jeffreys v. City of New York, supra, 426 F.3d at 553 ("`Assessments of credibility and choices between conflicting versions of the events are matters for the jury, not for the court on summary judgment.'"), quoting Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d Cir. 1996); accord Make the Road by Walking, Inc. v. Turner, 378 F.3d 133, 142 (2d Cir. 2004); Dallas Aerospace, Inc. v. CIS Air Corp., 352 F.3d 775, 780 (2d Cir.2003).
"In moving for summary judgment against a party who will bear the ultimate burden of proof at trial, the movant may satisfy [its] burden by pointing to an absence of evidence to support an essential element of the nonmoving party's claim." Vann v. City of New York, 72 F.3d 1040, 1048 (2d Cir.1995). "A defendant moving for summary judgment must prevail if the plaintiff fails to come forward with enough evidence to create a genuine factual issue to be tried with respect to an element essential to its case." Allen v. Cuomo, 100 F.3d 253, 258 (2d Cir.1996).
The Court of Appeals for the Second Circuit has explained that "in determining whether the moving party has met [its] burden of showing the absence of a genuine issue for trial, the district court may not rely solely on the statement of undisputed facts contained in the moving party's Rule 56.1 statement. It must be satisfied that the citation to evidence in the record supports the assertion." Vermont Teddy Bear Co. v. 1-800 Beargram Co., 373 F.3d 241, 244 (2d Cir.2004); see also Giannullo v. City of New York, 322 F.3d 139, 140 (2d Cir.2003).
The circumstances under which an at-will employee can recover against his employer for breach of contract were succinctly set forth by the Honorable Judge Richard J. Sullivan, United States District Judge, in Dreyfuss v. eTelecare Global Solutions-US, Inc., 08 Civ. 1115(RJS), 2010 WL 4058143 at *4 (S.D.N.Y. Sept. 30, 2010):
See also Arakelian v. Omnicare, Inc., 735 F.Supp.2d 22, 32-33 (S.D.N.Y.2010) (Crotty, D.J.) ("Case law dictates that when parties have an employment contract terminable at will, the contract can be modified and different compensation rates fixed without approval of the other party since the dissatisfied party has a right to leave his employment. If an employer [does this] and the employee chooses to remain in the employer's employ after being advised of that change, the employee is
"An enforceable [at-will] employment agreement may take many forms — including as a formal document, an employee handbook, or even as an oral agreement." Dreyfuss v. eTelecare Global Solutions-US, Inc., supra, 2010 WL 4058143 at *4 n. 9 (collecting cases).
Judge Sullivan also succinctly set forth the standards applicable to a claim brought pursuant to New York Labor Law, N.Y. Labor Law §§ 190 et seq. in Dreyfuss v. eTelecare Global Solutions-US, Inc., supra, 2010 WL 4058143 at *5 (emphasis in original omitted):
Plaintiff contends that Harris Interactive "alter[ed] the material terms and conditions of [his] employment" and, in doing so, "breached its obligations pursuant to the contract it drafted" (Pl.'s Mem. at 15-16). With respect to plaintiff's salary, he argues that "[t]he salary provision is clear[;][t]he only other provision in the contract concerning the salary is for [it] to increase" (Pl.'s Mem. at 16). Thus, plaintiff takes the position that Harris Interactive should have paid him at the original contractual rate for his final two days of work, i.e., March 15 and 16, 2010, and that because the company did not do so, Harris Interactive breached their employment agreement and violated New York Labor Law (see Pl.'s Mem. at 15-18, 23-24).
Harris Interactive contends that (1) because plaintiff was an at-will employee, it "retained the right to change [the] terms and conditions of employment going forward....," (2) "[p]laintiff was notified well in advance ... that his salary [would] be changed [effective March 15, 2010]" and (3) "[p]laintiff elected to continue working on March 15 and for one day after, indication that ... [he] acquiesced, for at least that period of time, to the reduction of his salary" (Memorandum of Law in Support of Defendant's Motion for Summary Judgment Pursuant to F.R.C.P. 56, dated Apr. 15, 2011 ("Def.'s Mem."), (Docket Item 20), 4-5) (emphasis in original). Thus, Harris
The April 27, 2009 offer letter clearly provides that plaintiff would be an at-will employee of Harris Interactive. In pertinent part, the letter states:
(Ex. B at DEF000002 to Def.'s St. of Mat. Facts). Because plaintiff had an at-will employment agreement with Harris Interactive, either party had the right to (1) terminate the agreement at any time for any reason or (2) alter the agreement prospectively, subject only to the other party's acceptance of the changed terms or termination of the agreement.
Here, plaintiff concedes that Harris Interactive began to change his job responsibilities as early as November 2009 (see Plaintiff's Response to Defendant's Rule 56.1 Statement of Undisputed Material Facts and Plaintiff's Rule 56.1 Statement of Additional Undisputed Material Facts, dated May 10, 2011 ("Pl.'s St. of Mat. Facts"), (Docket Item 25), ¶¶ 103-09). By mid- to late January 2010, plaintiff was assigned job responsibilities that differed from what he had been initially hired to do, and his supervisors acknowledged that he had taken on a changed role at the company (see Pl.'s St. of Mat. Facts ¶¶ 111-15). Plaintiff also concedes that on or about February 19, 2010, plaintiff "received an e-mail from Till seeking to arrange a time to discuss [his] changed job responsibilities and `appropriate compensation,'...." (see Pl.'s St. of Mat. Facts ¶ 120). This discussion took place during a conference call held on March 4, 2010 (see Pl.'s St. of Mat. Facts ¶ 122). During this conference call, plaintiff was informed that he would no longer hold the title of Senior Vice President of Global Accounts and Business Development and that because his role at the company was now one of an individual contributor/seller, his compensation would be reduced, effective March 15, 2010, to $150,000.00 per year — a salary commensurate with plaintiff's reduced responsibilities (see Pl.'s St. of Mat. Facts ¶¶ 123-24). Until March 15, 2010, plaintiff would continue to be paid at the original contractual rate of $220,000.00 per year.
Once plaintiff received notice that the terms of his employment were going to be changed prospectively — as he did during
In short, because Harris Interactive had the right to propose a prospective modification of the employment contract unilaterally and because plaintiff impliedly agreed to the proposed modification by continuing to work on March 15 and 16, 2010, Harris Interactive is entitled to summary judgment dismissing plaintiff's claim to the extent that he asserts a breach of contract based on Harris Interactive's refusal to pay him at the rate of $220,000.00 per year for his work on March 15 and 16, 2010.
Additionally, Harris Interactive is entitled to summary judgment dismissing plaintiff's New York Labor Law claim based on Harris Interactive's refusal to pay him at the rate of $220,000.00 per year for his work on March 15 and 16, 2010. As already explained in footnote 18, plaintiff must first establish a contractual right to wages in order to sustain a claim under New York Labor Law for withheld wages — which he has not done here. Accordingly, the Labor Law claim fails. See Dreyfuss v. eTelecare Global Solutions-US, Inc., supra, 2010 WL 4058143 at *4 n. 8; see also Simas v. Merrill Corp., 02 Civ. 4400(KTD), 2004 WL 213013 at *2 (S.D.N.Y. Feb. 4, 2004) (Duffy, D.J.).
Plaintiff's claim that Harris Interactive also violated the implied covenant of good faith and fair dealing "by materially altering the terms and conditions of [plaintiff's] employment contract as agreed" also fails (see Pl.'s Mem. at 18-19). "Under New York law, there is no obligation of good faith and fair dealing implied in at-will employment contracts, as doing so would be incompatible with the at-will nature of the relationship." Zaltz v. Wells Fargo Home Mortg., 08 Civ. 11225(BSJ), 2010 WL 3026536 at *5 (S.D.N.Y. Aug. 2, 2010) (Jones, D.J.) (collecting cases); see also Fried v. LVI Services, Inc., 10 Civ. 9308(JSR), 2011 WL 2119748 at *9 (S.D.N.Y. May 23, 2011) (Rakoff, D.J.); Pardy v. Gray, et al., 07 Civ. 6324(LAP), 2008 WL 2756331 at *4 (S.D.N.Y. July 15, 2008) (Preska, D.J.); Bessemer Trust Co., N.A. v. Branin, 498 F.Supp.2d 632, 638 (S.D.N.Y.2007) (Sprizzo, D.J.).
Plaintiff's final specification of breach of contract arises out of Harris Interactive's
Harris Interactive contends that plaintiff is not entitled to any severance benefits or medical insurance because plaintiff voluntarily resigned his employment (Def.'s Mem. at 5). Harris Interactive also contends that plaintiff's constructive discharge argument should be rejected because "the events surrounding [plaintiff's] departure establish as a matter of law that no constructive discharge occurred" (Def.'s Mem. at 5).
Plaintiff's at-will employment agreement provided in pertinent part:
(Ex. B at DEF000002 to Def.'s St. of Mat. Facts). Because Harris Interactive did not actually terminate plaintiff's employment, resolution of whether plaintiff is entitled to severance benefits and medical insurance turns on whether he voluntarily resigned his employment or whether he was constructively discharged by Harris Interactive.
Although a claim of constructive discharge is routine in employment discrimination cases, it is less frequently seen in breach of contract cases. Nevertheless, those cases which have confronted an allegation of constructive discharge in the context of a breach of contract claim have applied the same standards that are applied in employment discrimination cases. See Berman v. Tyco Int'l Ltd., 08 Civ. 43(DAB), 2011 WL 1334851 at *6 (S.D.N.Y. Mar. 31, 2011) (Batts, D.J.); Hertzoff v. Diaz, 533 F.Supp.2d 470, 473 (S.D.N.Y.2008) (McMahon, D.J.); Egan v. Marsh & McLennan Cos., 07 Civ. 7134(SAS), 2008 WL 245511 at *6 (S.D.N.Y. Jan. 30, 2008) (Scheindlin, D.J.); Criscuolo v. Seagram & Sons, Inc., 02 Civ. 1302(GEL), 2003 WL 22415753 at *8 (S.D.N.Y. Oct. 21, 2003) (Lynch, then D.J., now Cir. J.); Robinson v. Kingston Hosp., 55 A.D.3d 1121, 1123, 866 N.Y.S.2d 387, 388-89 (3rd Dep't 2008); Schaefer v. Brookdale Univ. Hosp. & Med. Ctr., 18 Misc.3d 1142(A), 2008 WL 595881 at *8 (Sup.Ct.Kings.Co. Mar. 3, 2008). Accordingly, I shall apply the same standards to plaintiff's constructive discharge claim that would apply if plaintiff was asserting a discriminatory discharge in violation of Title VII.
The standard for establishing constructive discharge was outlined by the Court of Appeals for the Second Circuit in Terry v. Ashcroft, 336 F.3d 128, 151-52 (2d Cir.2003):
See also Petrosino v. Bell Atl., 385 F.3d 210, 229-30 (2d Cir.2004); Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 73 (2d Cir.2000); Pena v. Brattleboro Retreat, 702 F.2d 322, 325 (2d Cir.1983). "The [constructive discharge] standard is a `demanding one,' because `a constructive discharge cannot be proven merely by evidence that an employee ... preferred not to continue working for that employer or that the employee's working conditions were difficult or unpleasant.'" Gingold v. Bon Secours Charity Health Sys., 768 F.Supp.2d 537, 545 (S.D.N.Y.2011) (Marrero, D.J.), quoting Miller v. Praxair, Inc., 408 Fed.Appx. 408, 410 (2d Cir.2010) (internal quotations omitted).
"A constructive discharge is the most aggravated form of a hostile environment." Ferraro v. Kellwood Co., 03 Civ. 8492(SAS), 2004 WL 2646619 at *11 (S.D.N.Y. Nov. 18, 2004) (Scheindlin, D.J.) (explaining that "[c]onstructive discharge is regarded as an aggravated case of hostile work environment"), aff'd, 440 F.3d 96 (2d Cir.2006); see also Pennsylvania State Police v. Suders, 542 U.S. 129, 149, 124 S.Ct. 2342, 159 L.Ed.2d 204 (2004); Chenette v. Kenneth Cole Prod., Inc., 345 Fed. Appx. 615, 619 (2d Cir.2009); Ortiz v. New York City Hous. Auth., No. 09-CV-1280 (SLT)(LB), 2011 WL 4711881 at *10 (E.D.N.Y. Sept. 30, 2011); Lugo v. Shinseki, 06 Civ. 13187(LAK)(GWG), 2010 WL 1993065 at *11 (S.D.N.Y. May 19, 2010) (Gorenstein, M.J.) (Report and Recommendation); Divers v. Metro. Jewish Health Sys., No. 06-CV-6704 (RMM)(JMA), 2009 WL 103703 at *19 (E.D.N.Y. Jan. 14, 2009).
To state a hostile work environment claim, a plaintiff must allege that the defendant's behavior was "sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive work environment." Kennebrew v. New York City Hous. Auth., 01 Civ. 1654(JSR)(AJP), 2002 WL 265120 at *11 (S.D.N.Y. Feb. 26, 2002) (Peck, M.J.) (Report and Recommendation) (internal quotations and citations omitted).
Alfano v. Costello, 294 F.3d 365, 373-74 (2d Cir.2002) (brackets in original); see also Pennsylvania State Police v. Suders, supra, 542 U.S. at 133-34, 124 S.Ct. 2342 (2004); Clark Cnty. Sch. Dist. v. Breeden, 532 U.S. 268, 270-71, 121 S.Ct. 1508, 149 L.Ed.2d 509 (2001); Patane v. Clark, 508 F.3d 106, 113 (2d Cir.2007); Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 604-05 (2d Cir.2006); Petrosino v. Bell Atlantic, supra, 385 F.3d at 221-22; Feingold v. New York, 366 F.3d 138, 150 (2d Cir.2004).
A hostile environment claim requires offensive conduct that is severe and pervasive; the offensive conduct need not, however, be intolerable or unendurable.
Feingold v. New York, supra, 366 F.3d at 150. In determining whether the level of workplace misconduct constitutes an actionable "hostile environment," no single factor is determinative; rather, the court must consider the totality of the circumstances. Faragher v. City of Boca Raton, 524 U.S. 775, 787-88, 118 S.Ct. 2275, 141 L.Ed.2d 662 (1998); Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir.2001); Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir.2000); see also Hayut v. State Univ. of New York, 352 F.3d 733, 746 (2d Cir.2003) (hostile environment claims are "fact-specific and circumstance-driven").
Judged by the foregoing standards, the changes in plaintiff's terms and conditions of employment do not come close to establishing a constructive discharge. As set forth above, Harris Interactive advised plaintiff in the March 4, 2010 conference call that his salary was being decreased from $220,000.00 to $150,000.00 per year and that his duties and title were being diminished. To be sure, these events came as a blow to plaintiff and were, no doubt, extremely distasteful. Nevertheless, at least in the absence of abusive, demeaning conduct, the notion that a white-collar job paying $150,000.00 is so abusive that continued employment is untenable is ludicrous on its face. Some comparisons are helpful to put this figure in perspective. United States District Judges, United States Senators and Members of the House of Representatives are currently paid $174,000.00 per year. See United States Courts, Judges and Judgeships, Judicial Compensation: Pay Charts and Table, http://www.uscourts.gov/Judges AndJudgeships/JudicialCompensation/ PaychartsTables.aspx (last accessed Mar. 16, 2012). United States Magistrate Judges are currently paid $160,080.00 per year. See 28 U.S.C. § 634(a). An individual working 40 hours per week for 52 weeks per year at the current minimum wage ($7.25 per hour) would earn $15,080.00 per year. See United States Dep't of Labor, Wages: Minimum Wage, http://www.dol.gov/dol/topic/wages/ minimumwage.htm (last accessed Mar. 16, 2012). All military personnel below two-star generals with 15 years of service earn less than $150,000.00 per year in base pay. See United States Department of Defense, Military Compensation, http://militarypay. defense.gov/Pay/basicpay.html (last accessed Mar. 16, 2012). In addition, according to the 2010 United States Census, only 20.5% of the households in the United States enjoyed a gross income of $100,000 or more. See United States Census Bureau, Income Statistics, http://www.census. gov/hhes/www/cpstables/032011/hhinc/toc. htm (last accessed Mar. 16, 2012).
To be sure, fair compensation for a specific person is necessarily an individualized matter, and the fact that a recent high school graduate with no specialized skills might earn $15,000.00 per year does not imply that $150,000.00 per year is fair compensation for an individual with decades of experience in marketing. Plaintiff's service may well have been worth more than $150,000.00 per year. Nevertheless, the salaries set forth herein do demonstrate that no reasonable jury could conclude that a salary of $150,000.00 per year is so abusive that an employee receiving that salary has no alternative to resignation. "[C]onstructive discharge is not established through evidence that [p]laintiff `was dissatisfied with the nature of his assignments,' that [p]laintiff `feels that the quality of his work has been unfairly criticized,' or that [p]laintiff's `working conditions
Based on the above facts, plaintiff's contention that he was constructively discharged from his employment is without merit. Accordingly, because plaintiff voluntarily resigned his employment, Harris Interactive is also entitled to summary judgment to the extent that plaintiff asserts a breach of contract claim based on Harris Interactive's failure to provide him with certain severance benefits and medical insurance for the six-month period following his employment.
Harris Interactive seeks summary judgment with respect to its breach of contract counterclaim for the return of plaintiff's $15,000.00 signing bonus.
Plaintiff contends that he is entitled to summary judgment on Harris Interactive's counterclaim because he was constructively discharged from his employment, and, further, because the signing bonus was intended by the parties to make plaintiff "whole for the 401(k) compensation [that he] forfeited [when he] le[ft] his former employer [to work for Harris Interactive]" (see Pl.'s Reply Mem. 7-8 & n. 4).
The April 27, 2009 offer letter provides, in pertinent part, that:
(Ex. B at DEF000002 to Def.'s St. of Mat. Facts). As discussed above, plaintiff was not discharged from his employment either constructively or otherwise. Instead, plaintiff voluntarily resigned his employment
Thus, on the basis of the above facts, Harris Interactive is also entitled to summary judgment on its breach of contract counterclaim.
For all the foregoing reasons, Harris Interactive's motion for summary judgment dismissing plaintiff's claims and awarding Harris Interactive judgment on its counterclaim for $15,000.00 is granted in its entirety, and plaintiff's cross-motion for summary judgment in his favor is denied in its entirety. The Clerk of the Court is directed to enter judgment in favor of Harris Interactive in the amount of $15,000.00 with prejudgment interest from the date of April 15, 2010.
SO ORDERED.
