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Phillip Annese v. Sodexo

July 2, 2012


The opinion of the court was delivered by: Gary L. Sharpe Chief Judge


I. Introduction

Plaintiff Phillip Annese commenced this action asserting claims against his former employer, defendant Sodexo, Inc., relative to his employment. (See Am. Compl., Dkt. No. 11.) Pending is Sodexo's motion to dismiss the Amended Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (See Dkt. No. 12.) For the reasons that follow, the motion is granted.

II. Background

A. Facts*fn1

On May 3, 2000, Sodexo offered Annese-who, at the time, had been working for another company-employment. (See Am. Compl. ¶¶ 5-7; Dkt. No. 12, Attach. 2 at 11-13.) The letter offering Annese a position with Sodexo explained that Annese "should not rely on any oral promises or other representations" not included in the letter, and that Sodexo was not offering employment "on a fixed term basis," but, instead, Sodexo or Annese was permitted to "terminate [the] employment at any time, for any reason, and with or without cause." (Dkt. No. 12, Attach. 2 at 12.) Annese was also provided a copy of Sodexo's employee handbook, which, among other things, "set forth a procedure for written warning, investigatory suspension, and termination of employment" in the event that discipline was necessary. (Am. Compl. ¶¶ 9, 13.) The handbook also stated, however, that it "did not constitute a contractual relationship," and that Sodexo "reserves the right in its discretion to modify or discontinue any of the provisions in this Employee Handbook or to decide that they do not apply, or how they may apply to a given case." (Id. ¶¶ 27, 29.) Aware that his employment would be subject to and based upon the handbook and the aforementioned provisions, Annese accepted Sodexo's offer. (See id. ¶¶ 11-12.) After working for Sodexo for an unspecified period of time,*fn2 Annese was "summarly [sic] discharged . . . based upon false and unfounded allegations," denied an investigation of the allegations, denied a written warning, and denied an investigatory suspension. (Id. ¶ 26.)

B. Procedural History

In January 2012, Annese commenced this action in the State of New York Supreme Court alleging that Sodexo breached an express and implied employment contract by terminating him without abiding by the disciplinary procedure set forth in the handbook. (See Compl., Dkt. No. 1, Attach. 2.) Sodexo thereafter removed the case to this court and promptly moved to dismiss the Complaint pursuant to Fed. R. Civ. P. 12(b)(6). (See Dkt. Nos. 1, 3.) In light of Sodexo's motion, Annese cross-moved for leave to file an amended complaint. (See Dkt. No. 7.) This court granted Annese's cross motion and denied Sodexo's motion with leave to renew within fourteen days after Annese filed his Amended Complaint. (See Dkt. No. 10.) Annese ultimately filed an Amended Complaint, which alleged claims of: (1) promissory estoppel; (2) fraud; (3) negligent misrepresentation; and (4) breach of express and implied employment contract. (See generally Am. Compl.)

III. Standard of Review

The standard of review under Fed. R. Civ. P. 12(b)(6) is well settled and will not be repeated here. For a full discussion of the standard, the court refers the parties to its prior decision in Ellis v. Cohen & Slamowitz, LLP, 701 F. Supp. 2d 215, 218 (N.D.N.Y. 2010).

IV. Discussion

Sodexo contends that each of Annese's causes of action should be dismissed for failure to state a claim upon which relief can be granted. (See Dkt. No. 12.) Among other things, Sodexo asserts that Annese is unable to plead essential elements of his claims of promissory estoppel, fraud, and negligent misrepresentation. (See id., Attach. 3 at 11-22.) Sodexo argues that Annese's "contract claims fail because none of the documents relied upon by [him] constitute a written express limitation on Sodexo's right to terminate his [at-will] employment." (Id. at 7-10.) Sodexo further claims that, even if an implied employment contract existed, Annese failed to state a claim because the protective provisions in the employment handbook regarding a disciplinary procedure were discretionary. (See id. at 10-11.) In opposition, Annese contends that Sodexo's motion is premature because the parties have yet to engage in any discovery, (see Dkt. No. 14 at 2, 3-4, 16-17), and, on the merits, he generally disagrees with Sodexo's arguments. (See id. at 2-16.)*fn3

Turning first to his contention that Sodexo's motion is premature, Annese relies upon authority that is inapplicable to the pending motion to dismiss brought under Fed. R. Civ. P. 12(b)(6). Despite the fact that Sodexo has moved to dismiss, the cases and statutes cited by Annese inexplicably pertain to summary judgment.*fn4 In any event, Sodexo's motion is not premature. When considering a motion to dismiss under Fed. R. Civ. P. 12(b)(6), a court is generally limited "'to facts stated in the complaint or in documents attached to the complaint as exhibits or incorporated in the complaint by reference.'" Newman & Schwartz v. Asplundh Tree Exp. Co., 102 F.3d 660, 662 (2d Cir. 1996) (quoting Kramer v. Time Warner, Inc., 937 F.2d 767, 773 (2d Cir. 1991)). Thus, discovery-and the court's reliance on any material facts that are borne therefrom-is unnecessary and, indeed, inappropriate when considering a motion to dismiss. For this reason, Annese's argument that Sodexo's motion should be denied as premature is without merit.

Next, the court must determine what documents it may consider in deciding this motion. Sodexo contends that all of the exhibits attached to a declaration of Curtis Stancil, its human resources director, "may properly be considered by the [c]court." (Dkt. No. 12, Attach. 3 at 1 n.1, 5-6; see Dkt. No. 12, Attach. 2 ¶ 1.) Those exhibits include: the written offer of employment referenced in Annese's Amended Complaint; an acknowledgment signed by Annese that he received certain policies and procedures of Sodexo; a letter offering Annese a promotion; excerpts of the January 2002 employee handbook and acknowledgment that Annese received same; excerpts of the January 2006 handbook and acknowledgment that Annese recieved same; excerpts of the March 2009 handbook; excerpts of Sodexo policies dated 1999, 2002, and 2009; and a "constructive counseling notice" indicating that Annese was terminated in June 2011. (Dkt. No. 12, Attach. 2 at 11-75; see Am. Compl. ¶¶ 7, 56.) Annese takes no position with respect to whether the foregoing documents may ...

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