Natsource's insistence that Paribello leave the trading floor on June
29, 2001 "constitute[d] a termination of Mr. Paribello's employment
without cause and without prior notice." Paribello Ltr #2.
In subsection 2.1 of the employment agreement, Paribello's duties are
defined as follows: "Employee shall be employed to broker over the
counter energy-related and environment-related instruments, with such
duties and powers as shall be reasonably determined, from time to time,
by Employer." Although Paribello was hired for the purpose of providing
brokering services, Natsource has the sole discretion to assign Paribello
his specific duties as it reasonably determines are appropriate.
Natsource reasonably determined that Paribello should spend his 30 day
notice period on paid leave rather than in the office on the trading
floor, given the circumstances surrounding Paribello's termination.
First, Natsource had reason to believe that Paribello would solicit
Natsource customers to leave Natsouree and follow him to his new
employer, because on June 29, 2001, Natsource received a telephone call
from one of its largest customers served by Paribello, in which the
customer told Natsource that it would no longer do business with
Natsource because Natsource was treating Paribello harshly. According to
Touchstone, this concern was reinforced when on June 29, 2001, as
Paribello was asked to take the day off, Paribello angrily stated, "How
do you think the customers are going to feel about this? You are playing
with fire." Second, Natsource had reason to believe that Paribello would
agree with other employees to leave Natsource to become employed at a
Natsource competitor, because Natsource had reason to suspect that
Paribello had agreed with Ippolito to leave Natsource and become employed
at GFI together. Third, Natsource had reason to believe that Paribello's
presence on the desk would be disruptive to the other brokers on the desk
because Touchstone testified that on Friday, June 29, 2001, when
Paribello spent time at his desk, he was visibly angry and loudly
complaining about his treatment by Natsource. Therefore, Natsource
reasonably determined that Paribello should not deal with Natsource
customers or employees during the 30-day notice period, and this
constituted a reasonable change in Paribello's duties. Thus, Paribello's
argument is not likely to succeed on the merits.
d. Paribello's Argument that Subsection 7.2 Applies
Paribello argues that subsection 7.2 should apply rather than 7.1,
because Natsource terminated Paribello when it instructed him to leave
the trading floor, such that Paribello should only be restricted from
working for a competitor for one month following his termination date.
See Def.'s Memo at 12. Paribello is unlikely to succeed on his argument
that Natsource's conduct constituted a termination of Paribello's
employment, because Paribello resigned prior to Natsource's instruction
to leave the trading floor, and Natsource reasonably changed his duties,
given the circumstances of his resignation.
Paribello advised Natsource of his resignation on two occasions.
First, Paribello resigned, effective immediately, on June 28, 2001. See
Touchstone Dec. at ¶ 7, Def.'s Memo at 9. According to Paribello, he
did not realize at the time that his contract required a 30-day notice of
termination. See id After realizing that night that he was required to
give a 30-day notice of termination prior to resigning, Paribello
reported to work the next day and had his lawyer send an official letter
purporting to constitute 30-days notice of his resignation. See Paribello
Memo at 9. Between these two notices of resignation,
Natsource asked Paribello to leave the trading floor and Natsource
premises, and told him that he would be informed of his employment
status. Because Paribello had already resigned prior to Natsource asking
him to leave the trading floor, Paribello terminated the employment
first. Once he terminated his employment, Natsource reasonably altered
his employment duties given the circumstances surrounding his
resignation. Therefore, the Court will preliminarily enjoin Paribello
from violating subsection 7.1 of the agreement, which applies under the
circumstances, as Paribello terminated the employment.
Natsource's request for a Preliminary Injunction is GRANTED. Paribello
is enjoined from violating subsection 7.1, 7.4, or 7.8 of the employment
agreement dated November 8, 1999.