The opinion of the court was delivered by: Freeh, District Judge:
Plaintiff, Interpublic Group of Companies, ("Interpublic"), has
filed a motion for summary judgment pursuant to Fed. R.Civ.P. 56.
Defendant, Michael S. Lesser, ("Lesser"), opposes the motion and
cross-moves for partial summary judgment. For the reasons stated
by the Court at the conclusion of oral argument and herein,
Interpublic's motion is granted.
Construing the record in the light most favorable to Lesser the
relevant facts of this case are as follows:
Lesser was employed by Interpublic as Chairman and Chief
Executive Officer of Lowe Marschalk, Inc., ("Lowe Marschalk") a
subsidiary of Interpublic, from July 16, 1980 to March 29, 1989.
On May 17th 1988 Lesser signed an agreement with Interpublic in
which Lesser promised to repay to Interpublic upon its demand the
full $349,300 value of the removal of his 1986 stock award
restrictions and his tax assistance payment if he were to cease
to be in Interpublic's employ before May 17, 1990 for any reason
other than: (1) termination by Interpublic; (2) death; (3)
resignation on account of disability; (4) resignation for good
reason as defined in Lesser's Executive Severance Agreement with
Interpublic; or (5) retirement.
On March 24, 1989, Lesser informed Interpublic that he would be
leaving Lowe Marschalk to take a position as President of Ogilvy
& Mather. Concerned about the possible effect Lesser's departure
might have on Lowe Marschalk's Coca-cola and other accounts,
Interpublic offered Lesser a higher paying position in the
corporate offices of Interpublic. Lesser rejected Interpublic's
offer and on March 29, 1989 Lesser resigned from Interpublic.
On April 25, 1989 Interpublic wrote Lesser, demanding the
$349,300.00. payable no later than May 10, 1989. The money has
not been paid.
Summary judgment is appropriate where "the pleadings,
depositions, answers to interrogatories and admissions on file,
together with affidavits, if any, show that there is no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed. R.Civ.P. 56(c).
The parties must base their affidavits on "personal knowledge"
and set forth facts as would be "admissible in evidence."
Fed.R.Civ.P. 56(e). The moving party has the initial burden of
demonstrating the absence of a genuine issue of material fact.
Adickes v. S.H. Kress and Co., 398 U.S. 144, 157, 90 S.Ct.
1598, 1608, 26 L.Ed.2d 142 (1970). The movant may satisfy this
burden by demonstrating to the Court that there is an absence of
evidence to support the non-moving party's case on which that
party would have the burden of proof at trial. Celotex Corp. v.
Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 2552-53, 91 L.Ed.2d
265 (1986). The non-moving party then has the burden of coming
forward with "specific facts showing that there is a genuine
issue for trial." Fed. R.Civ.P. 56(e). The non-movant must "do
more than simply show that there is some metaphysical doubt as to
the material facts." Matsushita Electric Industrial Co. v.
Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355-56,
89 L.Ed.2d 538 (1986). To avoid summary judgment, enough evidence
must favor the non-moving party's case such that a jury could
return a verdict in its favor. See Anderson v. Liberty Lobby,
477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986).
In the present case, the record before this Court, including
affidavits and depositions, does not demonstrate any genuine
issues of material fact for trial.
Lesser has failed to demonstrate that any genuine issue of
material fact exists regarding his constructive discharge claim.
The Repayment Agreement, under which Interpublic has sued,
expressly provides that Lesser's repayment obligation would arise
if he voluntarily ceased to be employed by Interpublic. Lesser
does not dispute that Interpublic did offer him another genuine
executive position in Interpublic's corporate offices for more
money and that it was not a demotion. Lesser Tr. at 77. Therefore
Lesser's obligation to repay his stock award was caused by his
voluntary decision to leave Interpublic for Ogilvy & Mather
instead of accepting the new position offered him by Interpublic.
In the context of an employee transfer, a claim for
constructive discharge requires more than a subjective opinion
that the new position is so intolerable that it forces a
resignation. Even if Lesser had been confronted with a demotion
in position or title, courts are very reluctant to find a
constructive discharge bases solely upon the employee's opinion.
Neale v. Dillon, 534 F. Supp. 1381, 1390 (E.D.N.Y. 1982). Lesser
offers no material facts to show that the new, higher paying
executive position at Interpublic was so intolerable that it
forced him to resign.*fn1
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 ...