- Contract Reins In Equitable Claim
- Untimely Means Untimely
- Employee Did Not Plausibly Assert His Firing Was Due to Race, Color or National Origin
Contract Reins In Equitable Claim
A party who has been damaged by acting in reliance upon the promises made by another can sometimes recover under an equitable doctrine known as “quantum meruit”, even where the three elements of a contract – agreement, breach and damages – cannot for one reason or another be established. This doctrine has sometimes been invoked for the benefit of attorneys who have provided valuable services to a client, even without a clear agreement with the client on the financial terms of the representation.
In Abcon v. Haas & Najarian, a federal case in which this firm represented the former client, the trial court, ruling for the client, held that a law firm had to return $463,000 because it had breached the terms of its retainer agreement, and then, ruling for the law firm, granted the law firm judgment in an even greater amount of $568,845 in quantum meruit. The net result was a win for the firm and a loss for the client, even though the lawyers had not satisfied the contingency condition of the retainer agreement.
On appeal to the Second Circuit Court of Appeals, this firm successfully upheld the factual determination of contract breach made by the trial court and secured reversal of the quantum meruit award, arguing, as a matter of law, that the two are incompatible. A lawyer who forfeits his legal fee by breaking faith with the client cannot effectively recover that fee on equitable grounds. As stated by the appellate court:
“New York law does not permit recovery in quantum meruit  if the parties have a valid, enforceable contract that governs the same subject matter as the quantum meruit claim. Thus, there can be no recovery in quantum meruit in this case because the valid and enforceable agreement between the parties already addressed the conditions under which [the law firm] would be paid for its legal services.”
2017 WL 2544140 (2d Cir. June 13, 2017).
Untimely Means Untimely
In Nero v. MTA N.Y. City Transit Authority, a civil servant train operator with the New York City Transit Authority (“TA”) commenced a federal action against the TA alleging that he was passed over for promotion due to being an alcoholic or recovering alcoholic in violation of the federal Americans with Disabilities Act (“ADA”).
Although individuals who abuse alcohol may be considered “disabled” under the ADA, if an employee is an alcoholic or a recovering alcoholic, the ADA specifically provides that employers may require such an employee to nonetheless meet the same standards of performance and behavior as other employees. This means that poor job performance or unsatisfactory behavior – such as absenteeism, tardiness, insubordination, or on-the-job accidents – related to an employee’s alcoholism need not be tolerated if similar performance or conduct would not be acceptable for other employees.
Here, after a 2006 arrest for driving while intoxicated, the plaintiff took 29 days off to treat his alcoholism. He did not, however, disclose the reason behind his absence until he was passed over for promotion in 2011. Because the plaintiff was notified that he did not receive promotion, at the latest, on January 31, 2012, and that he did not file an EEOC claim until, at the earliest, November 12, 2014, the Court found the plaintiff’s lawsuit procedurally barred as filed more than 300 days after the alleged discriminatory act.
In New York, a plaintiff seeking to bring a claim for disability discrimination in employment under the ADA must file a charge with the EEOC within 300 days of the alleged discriminatory act. In this case, it was undisputed that although the plaintiff had filed a charge with the EEOC, he had not timely filed it. His only argument was that when the EEOC issued his right to sue letter, it did not check the box on the form letter stating that his claim was “not timely filed.” Rather, the EEOC checked only the box stating that it was “unable to conclude that the information obtained establishes violations of the statutes.” From that, plaintiff concluded that the EEOC made a finding that is binding on both defendant and the Court that his administrative claim was timely filed. The Court rejected this argument stating, among other things that “300 days is 300 days, and nothing in the right to sue letter purports to change that fact.” The Court also stated that “plaintiff points to nothing in any employment discrimination statute that would give the EEOC the unilateral ability to reinstate a statutory filing period that had already expired at the time the administrative claim was filed.”
The Court went further and concluded that even if it were to reach the merits of plaintiff’s claim, it would find that he has none. “The ADA prohibits discrimination by covered entities, including private employers, against qualified individuals with a disability. Specifically, it provides that no covered employer ‘shall discriminate against a qualified individual with a disability because of the disability of such individual in regard to…advancement….’” In cases like this, Courts turn to the “McDonnell-Douglas” test, created by the United States Supreme Court in the case of McDonnell Douglas Corp. v. Green, which requires the plaintiff employee to prove with evidence, employment discrimination, which would then require the defendant employer to prove with evidence that the employment action taken was for non-discriminatory reasons. If the employer does so, the employee must then present facts to show that this was merely pretext for discrimination.
Applying the McDonnell Douglas framework, the Court also found the action meritless because plaintiff’s attendance record was inferior to ot hers in his promotion-eligible group, and the plaintiff could not show this non-discriminatory reason for the TA’s actions was a pretext.
Employee Did Not Plausibly Assert His Firing Was Due to Race, Color or National Origin
In Weir v. Montefiore Med. Ctr., the plaintiff, a dark-complexioned man from Jamaica, was a research technician in a laboratory at the Albert Einstein College of Medicine (AEC). He was fired at the end of his 90-day probation. Suing AEC and its co-defendants under Title VII of the Civil Rights Act and the New York State and City Human Rights Laws, Weir alleged he had acrimonious interactions with other lab members, that defendants impermissibly retaliated against him, and that he was wrongfully terminated. The federal District Court dismissed the suit, concluding that “bits and pieces” of conduct believed to arise from a discriminatory motive could not create the “mosaic” needed to allege an inference of discrimination. Nor did Weir claim that anyone else in the lab was treated better than he was. Importantly, Weir reported the alleged discrimination after the decision to fire him was made, thus negating the possibility that his termination would not have occurred but for defendants’ retaliatory motive.
To survive Defendants’ motion to dismiss his Title VII claim, the Court said that Weir had to satisfy a “minimal burden of alleging facts suggesting an inference of discriminatory motivation.” At the pleadings stage, Title VII requires a plaintiff asserting a discrimination claim to allege two elements: (1) the employer discriminated against him (2) because of his race, color, religion, sex, or national origin. “The first element is established by showing an adverse employment action. The second element is satisfied where a plaintiff’s race or national origin ‘was a “substantial” or “motivating” factor contributing to the employer’s decision to take the adverse employment action.’ While evidence of discriminatory intent is often ‘elusive,’ a plaintiff alleging discrimination is not relieved of the traditional plausibility pleading standard. Plaintiffs may ‘rely on “bits and pieces” of information to support an inference of discrimination’ such that they may construct ‘a “mosaic” of intentional discrimination.’”
However, the Court concluded that even taking all of Weir’s “well-pleaded allegations as true and drawing all reasonable inferences in his favor,” it could not find that Weir had met this liberal pleading standard. “There is no question that Plaintiff’s termination was an adverse employment action sufficient to satisfy the first element. But the Amended Complaint —including Plaintiff’s moving papers — do not plausibly suggest that he was terminated ‘because of his race, color… or national origin.”
Weir alleged that he was initially praised for his work as a research technician, but was later criticized and complained about by his co-workers who did not trust him and who claimed that he “did not fit in.” The Court said that the Weir did “little to explain how these remarks by his co-workers and supervisor stem from discriminatory animus. Plaintiff alleges that a co-worker asked him a question about his national origin — a question that Plaintiff concedes could be innocuous — but he does not allege that anyone in the lab openly verbalized racial animus toward him. Recognizing that such instances are rare, however, courts also look to other indicia of discrimination, such as ‘the more favorable treatment of employees not in the protected group,’ and the ‘totality of the relevant facts.’ Plaintiff has not proffered any comparators or alleged that anyone else in the lab was treated better than he was. Of course, Plaintiff does not allege that any other lab employees were fired — suggesting that they were all treated better than he, at least in this respect — but the Court is reluctant to assume facts based solely on the absence of an allegation to the contrary.”
The Court went on to say that Weir’s “principal (indeed, sole) evidence” was his supervisor’s statement that he “did not fit in.” But Weir did not offer anything “beyond his own perception of the remark to explain how it speaks to a discriminatory motive.” And even though Weir had alleged other unkind remarks from his co-workers, the Court concluded that “none of these indicates any animus toward Plaintiff based on his race, color, or national origin — by Plaintiff’s own account, all of the comments related to Plaintiff’s use of lab equipment or his work in the lab.” The Court said that to find an inference of discrimination, it must do more than “speculate as to the meaning” of the “off-handed remark,” that Weir “did not fit in,” and could not find that this remark, plus the lab employees’ complaints were “enough to discharge Plaintiff’s burden.”
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