Moreover, New York law is particularly hard pressed to find a
constructive discharge when there is no evidence of reduction in
salary or benefits, and the employee is asked to remain with his
employer. See Pena v. Brattleboro Retreat, 702 F.2d 322 (2d
Cir. 1983); Ioele v. Alden Press, Inc. 145 A.D.2d 29,
536 N.Y.S.2d 1000, 1004 (1989); Neale v. Dillon, 534 F. Supp. 1381
(E.D.N.Y. 1982). It is undisputed by Lesser that Interpublic's
offer to Lesser was for increased compensation.
Finally, as the Second Circuit emphasized in Pena v.
Brattleboro Retreat, 702 F.2d 322, 326 (1983), the law does not
provide a remedy for an overreaction to a reasonable business
decision of an employer. Clearly Interpublic had a right to sell
Lowe Marschalk to Lowe PLC. Even assuming that the chief obstacle
to that sale was the animosity between the buyer Frank Lowe and
Lesser, Interpublic nevertheless had a right, not only under
their employment agreement with Lesser but also as a matter of
sound business judgment, to move Lesser to another position in
Interpublic. Moreover, accepting Lesser's allegations as true,
the most Lesser could say is that he was unhappy with
Interpublic's business decisions concerning Lowe Marschalk and
with what he envisioned his future to be like at Lowe Marschalk
if it were acquired by Lowe PLC.
Thus, every single one of the factors cited in the controlling
precedents above are present in this case. Lesser has alleged
nothing more than a hypothetical factual dispute and therefore as
a matter of law his claim of constructive discharge must fail.
Thompson v. Gjivoje, 896 F.2d 716, 720 (2d Cir. 1990).
Lesser has also failed to establish the elements for his
defense of Promissory Estoppel. Specifically, Lesser claims that
another high ranking officer of Interpublic, Kent Kroeber,
indicated to him that the repayment agreement would not be a
problem if Lesser left Lowe Marschalk. The elements under New
York law for a defense of promissory estoppel are "a clear and
unambiguous promise; a reasonable and foreseeable reliance by the
party to whom the promise is made; and an injury sustained by the
party asserting the estoppel by reason of his reliance."
Reprosystem, B.V. v. SCM Corp., 727 F.2d 257, 264 (2d Cir.
1984). When Lesser was asked at his deposition whether he would
have rejected Ogilvy & Mather's offer if he knew Interpublic
would enforce the Repayment Agreement, Lesser stated that
complying with the Repayment Agreement in and of itself would
not have made him stay at Interpublic. Lesser Tr. at 283.
Therefore Lesser's own deposition establishes that he did not
rely upon Interpublic's alleged promise. Finally, even if Lesser
did rely on Interpublic's promise he did not act reasonably in
doing so. Lesser stated in his deposition that a waiver under the
Repayment Agreement would have to be approved by Grier, and that
Grier never told Lesser that Lesser did not have to comply with
the Repayment Agreement. Lesser Tr. at 278-79.
For the foregoing reasons, as well as those already stated by
the Court at oral argument the plaintiff's motion for summary
judgment is granted, the defendant's Counter claims are dismissed
in their entirety and it is hereby ORDERED that Lesser pay
Interpublic $349,300, plus interest from May 10, 1989 to the date
of judgment, and interest thereafter on such judgment until it is
satisfied, less $188,333 for Lesser's deferred compensation