Blodgett et al v. Siemens Industry, Inc.
MEMORANDUM & ORDER: SO ORDERED that summary judgment is granted in favor of Defendant and all of the claims in the complaint are hereby dismissed. Ordered by Judge Joan M. Azrack on 1/11/2018. (Florio, Lisa)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ROBERT BLODGETT, PETER BOULEY,
CHRISTOPHER VISOCKY, and RANDY
For Online Publication Only
1/11/2018 4:45 pm
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
MEMORDANUM & ORDER
13-CV-3194 (JMA) (AKT)
SIEMENS INDUSTRY, INC.,
AZRACK, United States District Judge:
Plaintiffs Robert Blodgett, Peter Bouley, Christopher Visocky and Randy Zornberg
(together “Plaintiffs”) commenced this action against Defendant Siemens Industry Inc.
(“Siemens”) on June 3, 2013, claiming breach of implied contract, promissory estoppel and
misrepresentation. (Compl., ECF No. 1.) On April 21, 2017, Defendant filed the instant motion
for summary judgment. (Def.’s Mot. for Summ. J. (“Def.’s Mot.”), ECF No. 92.) For the
reasons set forth below, the Court grants Defendant’s motion for summary judgment on all
A. Plaintiffs’ Employment with Siemens
Plaintiffs are former employees of Defendant Siemens. (Def.’s Local Rule 56.1 Stmt. of
Facts (“Def.’s 56.1”) ¶ 1, ECF No. 94.) Siemens is a Delaware corporation whose primary
product is fire protection systems. (Id. ¶ 2.) Plaintiffs were hired by Siemens as territory sales
managers for Siemens’ Faraday brand of fire protection products for Siemens’ Building
(Id. ¶¶ 3-4.)
Plaintiffs began their employment with Siemens at
different times between 2007 and 2011—plaintiff Blodgett in 2007, plaintiff Zornberg in 2008,
plaintiff Bouley in 2009, and plaintiff Visocky in 2011. (Id. ¶ 5.) As territory sales managers for
the Faraday product, Plaintiffs were responsible for sales, working with distributors to manage
product distribution, and educating distributors about the product, among other duties. (Id. ¶ 6.)
Each plaintiff was responsible for a different territory within the United States. (Def.’s 56.1 ¶ 7.)
During their employment with Siemens, Plaintiffs worked for a management team consisting of
Tom Schlesinger (Senior Director of Product Sales), Kurt Schoonover (Director of Sales/Senior
Sales Manager), and Mike Alpher (Sales Manager). (Id. ¶ 8.) Plaintiffs reported directly to
Mike Alpher, who in turn reported to Tom Schlesinger and Kurt Schoonover. (Id. ¶ 9.) Neither
Alpher, Schlesinger, nor Schoonover had authority to issue employment contracts. (Id. ¶ 10.)
Prior to the commencement of their employment with Siemens, each plaintiff
acknowledged an offer letter prepared by Siemens. (Id. ¶¶ 11-14.) The offer letters clearly
defined Plaintiffs’ employment relationship with Siemens. (Def.’s 56.1 ¶¶ 11-14.) For example,
the offer letters signed by plaintiffs Blodgett, Bouley, and Zornberg stated that “Siemens
Building Technologies, Inc., is an at-will employer. This means your employment can be
terminated at any time by you or by Siemens Building Technologies, Inc., with or without cause
and with or without notice.” (Id. ¶¶ 11-13.) Similarly, the offer letter accepted by plaintiff
This letter sets forth the entire offer of employment. Any promises, agreements or
understandings not stated herein are not binding. . . . This offer of employment
does not constitute a contract of employment between SII and the employee for
any fixed term. All SII employees are employed on an at-will basis, whereby the
employment may be terminated with or without cause or advance notice by either
the employee or the employer. Further, the terms of employment may be altered
at any time at SII’s sole discretion. No one other than an officer of SII has the
authority to enter into an agreement for employment for a specified period of
time, and any such agreement must be in writing and must be signed by you and
an officer of SII. No other policies or practices should be construed as varying
the at-will status of any employee.
(Id. ¶ 14.)
Additionally, Siemens maintained an employee handbook stating that all Siemens
employees were at-will employees, and thus could be terminated at any time. (Id. ¶ 15.) All four
plaintiffs conceded at their depositions that both their offer letters and the Siemens employee
handbook provided explicit notice of their at-will employment status. (Blodgett Dep. 14:1115:7, 36:19-37:3, ECF No. 97-1, Ex. C; Bouley Dep. 11:7-2, ECF No. 97-1, Ex. D; Visocky
Dep. 17:24-18:15, ECF No. 97-1, Ex. E; Zornberg Dep. 19:4-19, ECF No. 97-1, Ex. F.)
Plaintiffs also confirmed that they never received any written employment contracts from
Siemens memorializing any promises of continued employment. (Def.’s 56.1 ¶ 18.)
B. Siemens’ Reorganization of its Fire Protection Product Business
Prior to Plaintiffs’ employment with Siemens, Siemens acquired the Faraday brand of fire
protection products from Cerberus Pyrotronics. (Def.’s 56.1 ¶ 19.) As a result, Siemens sold
two lines of fire protection products—a Faraday brand and a Siemens brand. (Id. ¶ 19.) In early
2011, Siemens announced that it planned to introduce a new line of fire protection products that
would replace the Faraday and Siemens brands. (Id. ¶ 20.) The entire Siemens fire protection
product sales staff would eventually work on this new line of products, as opposed to working on
separate products. (Id. ¶ 20.) As part of this proposed reorganization, the Faraday sales team
members, including Plaintiffs, became part of the combined Siemens sales team. (Id. ¶ 21.)
Siemens planned to merge the Faraday and Siemens sales territories to create 15 sales territories
within the United States. (Def.’s 56.1 ¶ 22.)
In late 2011, at an annual summit meeting with distributors, Siemens formally announced
the retirement of the Faraday brand and introduced the new line of Siemens fire protection
products, Cerberus PRO. (Id. ¶ 23.) The Faraday brand was eventually merged into the
Siemens brand, resulting in Siemens selling one line of fire protection products—Cerberus
PRO—to its distributors. (Id. ¶ 24.) Plaintiffs continued working in their existing territories
because the plan to create 15 new sales territories within the United States was not approved.
(Id. ¶ 25.)
C. Alleged Promises of Continued Employment
Plaintiffs claim that certain statements made by Schlesinger, Schoonover and Alpher
during the pendency of the merger constituted promises of secure employment based on their
existing sales achievements and that these statements altered Plaintiffs’ at-will status. (Pl.’s
Mem. at 1.) Plaintiffs claim that in the fall of 2011, Tom Schlesinger and Kurt Schoonover gave
a PowerPoint presentation to all of the territory managers regarding the merger and that during
the presentation, Schlesinger and Schoonover communicated that they intended to maintain the
same number of territory managers after the merger was completed. (Pl.’s Mem. at 10-11;
Visocky Dep. 30:19-32:4.)
Plaintiffs also claim that their direct supervisor, Mike Alpher,
promised that if they continued to perform well that their jobs would be safe. (Pl.’s Mem. at 11.)
In the two years that followed, three of the four plaintiffs received offers to interview for
other jobs, but none of them actually interviewed for those positions nor received offers of
employment. 1 (Bouley Dep. 34:13-36:7; Visocky Dep. 47:9-48:11; Blodgett Dep. 81:3-82:21;
Zornberg Dep. 81:2-82:14.) There is no evidence that Schlesinger, Schoonover or Alpher were
aware of Plaintiffs’ offers to interview for other jobs.
D. Plaintiffs’ Termination from Siemens
In late 2012 and early 2013, Siemens failed to reach its expected sales targets and
Plaintiff Visocky had applied and interviewed for a managerial position within Siemens in the first half of 2011,
but chose to remain in his then-current sales position, as the manager’s position was not yet officially available.
(Visocky Dep. 29:2-31:18.) There is, however, no evidence that he received any offers to interview for other jobs or
other offers of employment any time after the October 2011 PowerPoint presentation, which Visocky characterizes
as “the first real promise that I took as a solid promise.” (Visocky Dep. 31:19-25.)
thereafter initiated a nationwide reduction-in-force in the Building Technologies Division sales
team. (Id. ¶ 26, 28.) As part of the reduction-in-force, Plaintiffs were terminated from their jobs
with Siemens in April 2013.
(Def.’s 56.1 ¶ 29.)
In addition to Plaintiffs, Siemens also
terminated approximately 40 other employees of the sales team in the Building Technologies
Division as part of this reduction-in-force, including Plaintiffs’ manager, Mike Alpher. (Id. ¶¶
28, 30.) Siemens offered Plaintiffs a severance package, which they did not accept. (Id. ¶ 31.)
Based on the alleged promises made by Sclesinger, Schoonover and Alpher, Plaintiffs argue that
their termination was improper.
E. Procedural History
Plaintiffs filed their complaint in this action in 2013.
The parties then conducted
discovery, the majority of which was completed by August 2015.
On August 19, 2015,
Defendant filed its first pre-motion conference letter requesting leave to file a motion for
summary judgment. (ECF No. 71.) On September 8, 2015, Plaintiffs filed a response in which
they withdrew their breach of implied contract claim “as it is not a cognizable claim in New
York.” (ECF No. 76.) In this same letter, Plaintiffs also argued that their remaining claims were
viable under New York law.
After the parties conducted some additional discovery, they submitted a second round of
pre-motion conference letters in the fall of 2016. In support of its argument for summary
judgment, Defendant cited exclusively to New York law. (ECF No. 81.) In their letter, Plaintiffs
responded to the substance of Defendant’s letter, but did not cite any cases and did not reference
the law of any particular jurisdiction. 2 (ECF No. 83.)
The parties then briefed the motion for summary judgment.
In its moving papers,
Plaintiffs’ response makes mention of their previously withdrawn claim for breach of implied contract, but does
not request that the claim be reinstated.
Defendant relied exclusively on New York law. (ECF No. 93.) In their opposition papers, for
the first time, Plaintiffs argued that New Jersey law should apply and sought to revive their
previously dismissed claim for breach of implied contact. (ECF No. 96.)
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(c) “mandates the entry of summary judgment . . .
against a party who fails to make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the burden of proof at trial.”
Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Summary judgment is warranted “if the
movant shows that there is no genuine dispute as to any material fact and the movant is entitled
to judgment as a matter of law.” Fed. R. Civ. P. 56(a). “An issue of fact is ‘material’ for these
purposes if it might affect the outcome of the suit under the governing law,” “while [a]n issue of
fact is ‘genuine’ if the evidence is such that a reasonable jury could return a verdict for the
nonmoving party.” Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir.
2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)) (internal quotation
marks omitted). “When ruling on a summary judgment motion, [the court] must construe the
facts in the light most favorable to the non-moving party and must resolve all ambiguities and
draw all reasonable inferences against the movant.” Dallas Aerospace, Inc. v. CIS Air Corp.,
352 F.3d 775, 780 (2d Cir. 2003).
A. Local Rule 56.1 Statements
Local Civil Rule 56.1 requires a party moving for summary judgment to submit “a
separate, short and concise statement, in numbered paragraphs, of the material facts as to which
there is no genuine issue to be tried,” together with “citation[s] to evidence which would be
admissible, set forth as required by Fed. R. Civ. P. 56(c).” See Local R. 56.1(a), (d). Defendant
complied fully with this requirement.
In response, Plaintiffs were required to submit “a
correspondingly numbered paragraph responding to each numbered paragraph in the statement of
the moving party” followed by citations to admissible record evidence. See Local R. 56.1(b),
(d); see also Individual Rules of Hon. Joan M. Azrack IV(D). In breach of this obligation,
Plaintiffs failed to submit a responsive statement.
“Local Rule 56.1 subsection (c) instructs that each paragraph in the moving party’s
statement of material facts will be deemed admitted for purposes of the summary judgment
motion ‘unless specifically controverted by a correspondingly numbered paragraph in the
statement required to be served by the opposing party.’” JB Aviation, LLC v. R Aviation
Charter Servs., LLC, No. 14-CV-5175, 2017 WL 3887885, at *1 (E.D.N.Y. Sept. 5, 2017); Local
R. 56.1(c). The rule does not, however, “absolve the party seeking summary judgment of the
burden of showing that it is entitled to judgment as a matter of law,” nor is a Local Rule 56.1
statement “itself a vehicle for making factual assertions that are otherwise unsupported in the
record.” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 74 (2d Cir. 2001) abrogated on other
grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009). Although a district court has
discretion to “determine whether to overlook a party’s failure to comply with the local court
rules,” id. at 73, the Court finds no reason here to overlook Plaintiffs’ failure to submit a Local
Rule 56.1 statement. Accordingly, the Court has deemed admitted all material facts set forth in
Defendant’s Rule 56.1 statement “to the extent that they are adequately supported with record
evidence.” JB Aviation, LLC, 2017 WL 3887885, at *1.
In any event, in an abundance of caution, the Court has also considered all of the
evidence that Plaintiffs cite in their opposition brief.
As explained infra, even when this
evidence is considered, none of Plaintiffs’ claims survive summary judgment.
B. Choice of Law
Before addressing the merits of the parties’ arguments, the Court must determine which
law applies. In their Opposition, Plaintiffs contend, for the first time, that New Jersey law should
apply because they have discovered after “considerable research” that while New York law does
not recognize causes of action for breach of an implied contract, New Jersey law does. (Pl.’s
Mem. at 3.) Plaintiffs’ argument is without merit.
As Defendant correctly points out, Plaintiffs filed this action in New York in 2013 and,
prior to submitting their opposition brief, have never even hinted that any law other than New
York law should apply. Courts look to the parties’ conduct during litigation in determining
whether a party consented to application of the forum’s law, and for the last four years the parties
have litigated this case on the assumption that New York law applies. Cf. Shatkin v. McDonnell
Douglas Corp., 727 F.2d 202, 206 n.1 (2d Cir. 1984) (applying New York law where “the parties
have conducted the entire litigation on the assumption that New York law governs”).
More importantly, in their September 8, 2015 letter to the Court, Plaintiffs specifically
withdrew their breach of implied contract claim because “it is not a cognizable claim in New
York.” (ECF No. 76.) In that same submission, Plaintiffs argued that their remaining claims
were cognizable under New York law, citing only New York case law in support.
Plaintiffs also submitted a letter in response to Defendant’s second pre-motion letter on
November 1, 2016. None of these submissions indicated that New Jersey law, or the law of any
jurisdiction other than New York might apply to the claims in this suit. Plaintiffs cannot now, at
this late stage of litigation, change their strategy and argue that New Jersey law should apply
(and that their withdrawn claim for breach of implied contract should be revived) because only
now have they fully researched the relevant issues. Cf. Cousins v. Instrument Flyers, Inc., 44
N.Y.2d 698, 700 (1978) (“Plaintiff chose to sue in New York, and the parties and the court
proceeded, reasonably, in view of the many relevant factors, assuming that New York law would
apply on the now disputed issue. Only after all the proof had been received and just before the
jury was to be charged did plaintiff’s highly experienced counsel suggest application of
Pennsylvania law. Plaintiff had already chosen his strategy, based on New York law, and it was
late to change it after the unfavorable testimony had unfolded.”).
Plaintiffs’ decision to voluntarily withdraw their claim for breach of implied contract and
their citation solely to New York law in support of their other claims in their prior submissions is
deemed by this Court to constitute an implied consent to use New York law, which settles the
choice of law issue in favor of the application of New York law. However, it should be noted
that even if the Court were to apply New Jersey law, Plaintiffs claims would still fail as a matter
C. Plaintiffs’ Claims
Plaintiffs base their claim for promissory estoppel, in part, on the comment made by
Schlesinger and Schoonover that Siemens intended to maintain the same number of territory
managers after the merger was completed. (Pl.’s Mem. at 10-11; Visocky Dep. 30:19-32:4.)
That Schlesinger and Schoonover communicated this intention during a 2011 presentation to the
territory managers is not disputed by Defendant. (See Def.’s 56.1 ¶ 22.) Additionally, Plaintiffs
claim in their opposition papers that their direct supervisor, Mike Alpher, told them that “as long
as they kept their numbers in the same range as in the past, their jobs would be safe.” (Pl.’s
Mem. at 11.) To support this assertion, Plaintiffs cite deposition testimony by Alpher in which
Alpher states that he told the territory managers that their “security [was their] ability to operate
effectively and produce effectively,” (Alpher Dep. 28:15-19), and that he told the managers that
they needed to “make [their] numbers” and “make [their] quota.” (Alpher Dep. 29:23-30:5.)
Plaintiffs claim that these statements constituted oral promises of continued employment upon
which they all relied in choosing not to pursue employment with other companies. (Bouley Dep.
34:13-36:7; Visocky Dep. 47:9-48:11; Blodgett Dep. 81:3-82:21; Zornberg Dep. 81:2-82:14.)
As a threshold matter, Plaintiffs’ claims fail as a matter of law because “New York law
does not recognize promissory estoppel in the employment context.” Wittig v. Mount Sinai
Med. Ctr., Inc., No. 14-CV-5808, 2014 WL 7234612, at *2 (S.D.N.Y. Dec. 18, 2014) (quoting
Deutsch v. Kroll Assocs., Inc., No. 02–CV–2892, 2003 WL 22203740 (S.D.N.Y. Sept. 23,
2003); Shapira v. Charles Schwab & Co., 225 F. Supp. 2d 414, 419 (S.D.N.Y. 2002) (“New
York does not apply the doctrine of promissory estoppel in the employment context.”).
However, even if New York law recognized such a cause of action, Plaintiffs’ claims would still
fail as they cannot demonstrate reasonable reliance.
In order to bring a claim for promissory estoppel, Plaintiffs must prove that they
reasonably relied on the alleged promises made by Schlesinger, Schoonover and Alpher to their
detriment. Readco, Inc. v. Marine Midland Bank, 81 F.3d 295, 301 (2d Cir. 1996). It is wellestablished that at-will employees cannot reasonably rely on representations supposedly
promising them continued employment in the future. See, e.g., Hughes v. Standard Chartered
Bank, PLC, No. 09-CV-4595, 2010 WL 1644949, at *7 (S.D.N.Y. Apr. 14, 2010) (“The
plaintiff’s status as an at-will employee renders any reliance on a representation of continuous
employment unreasonable.”); Jaffe v. Aetna Cas. & Sur. Co., No. 93-CV-0385, 1996 WL
337268, at *3 (S.D.N.Y. June 19, 1996) (“An employee’s reliance on general assurances of long
term employment is not reasonable.”), aff’d, 113 F.3d 1229 (2d Cir. 1997); Marino v. Oakwood
Care Ctr., 5 A.D.3d 740, 774 N.Y.S.2d 562 (N.Y. App. Div. 2d Dep’t 2004) (holding that an atwill employee cannot establish reasonable reliance, a necessary element for a claim of
promissory estoppel). As it is undisputed in this case that Plaintiffs were at-will employees, they
cannot establish reasonable reliance on any oral assurances of continued employment.
Were the Court to consider this claim under New Jersey law, the outcome would be the
same. Under New Jersey law, an employee who has been given explicit notice of his at-will
employment status in the form of either an employment contract or employee handbook, cannot
establish reasonable reliance for the purposes of a claim of promissory estoppel. See Worbetz v.
Ward N. Am., Inc., 54 F. App’x 526, 532 (3d Cir. 2002) (“Because Worbetz agreed to be
employed ‘at will’ in documents he signed before and during the course of his employment, he
cannot show reasonable reliance on a promise of employment on a commission basis for a two
year term.”); Taylor v. Lincare, Inc., No. 15-CV-6284, 2016 WL 3849852, at *12 (D.N.J. July
15, 2016) (“[R]eliance on any oral assurances or communications regarding Plaintiff’s
employment status would be unreasonable in light of the disclaimer in the Lincare employee
handbook received and signed by Plaintiff, which prominently and explicitly stated that ‘nothing
in this handbook or any other policy or communication changes the fact that employment is atwill and may be terminated at any time by you or by the Company with or without cause or
notice’ . . . .”). Plaintiffs concede that both their offer letters and the Siemens employee
handbook provided explicit notice of their at-will employment status. (Blodgett Dep. 14:1115:7, 36:19-37:3; Bouley Dep. 11:7-2; Visocky Dep. 17:24-18:15; Zornberg Dep. 19:4-19).
Therefore, Plaintiffs cannot establish reasonable reliance pursuant to New Jersey law.
Plaintiffs’ claim for misrepresentation fails for the same reason. Under New York law,
reasonable reliance is a crucial element necessary to establish a claim for either negligent or
fraudulent misrepresentation. See Hydro Investors. Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20
(2d Cir. 2000); Schlaifer Nance & Co. v. Estate of Warhol, 119 F.3d 91, 98 (2d Cir. 1997).
Similar to Plaintiffs’ claim for promissory estoppel, Plaintiffs cannot establish reasonable
reliance given their at-will employment status. See Gencarelli v. Cablevision Sys. Corp., No. 10CV-04092, 2012 WL 1031441, at *4 (E.D.N.Y. Mar. 27, 2012) (“[S]ince an at-will employment
contract can be terminated at any time, a plaintiff cannot establish the requisite element of
reasonable reliance on the alleged representations by [defendant] regarding future
employment.”); Marino, 774 N.Y.S.2d at 563 (“[S]ince the plaintiff was offered only at-will
employment, she cannot establish reasonable reliance, a necessary element to recover damages
on theories of fraudulent misrepresentation, negligent misrepresentation, and promissory
The result is the same under New Jersey law. See Andreula v. Capital One Fin. Corp.,
No. 14-CV-5276, 2016 WL 6953422, at *4 (D.N.J. Nov. 28, 2016) (“In sum, the Court holds that
summary judgment is appropriate because the alleged misrepresentation impacted the terms of
[plaintiff’s] employment, and his at-will employment status made any reliance on such
misrepresentation unreasonable as a matter of law.”); De Franco v. AT&T Corp., No. A-170806T1, 2007 WL 2302324, at *5 (N.J. Super. Ct. App. Div. Aug. 14, 2007) (holding that an
employee cannot reasonably rely on a manager’s assurances of job security that directly
contradict a written policy establishing the employee’s at-will status).
Plaintiffs’ only counter-argument to this well-established rule is a quote from Shebar v.
Sanyo Bus. Sys. Corp., 544 A.2d 377 (N.J. 1988). (See Pl.’s Mem. at 13 (“In Shebar v. Sanyo,
the court reasoned ‘Plaintiff acted in reliance on the alleged promise by forgoing the job
opportunity he had secured at Sony.’”).) This quote, however, is taken out of context as the
Court in Shebar was discussing the plaintiff’s reliance on the alleged promise in the context of
his claim for breach of contract, not misrepresentation. See Shebar, 544 A.2d at 284 (“The
primary issue in this appeal is plaintiff’s breach of contract claim.”). Additionally, Shebar is
factually distinguishable from this case given that in Shebar, there were no documents explicitly
notifying plaintiff of his at-will employment status.
Breach of Implied Contract
As discussed earlier, Plaintiffs voluntarily withdrew their claim for breach of implied
contract as it is not cognizable under New York law. See supra, at 7. The Court will not permit
Plaintiffs to revive that claim. However, even if the Court were to consider that claim and
analyze it under New Jersey law, it would still fail.
A cause of action for breach of contract under Shebar requires that Plaintiffs demonstrate
the existence of: “(1) a contract sufficiently clear and capable of judicial interpretation that is not
vague or indefinite; and (2) adequate consideration.” Swider v. Ha-Lo Indus., Inc., 134 F. Supp.
2d 607, 618 (D.N.J. 2001). To establish adequate consideration, Plaintiffs must show that
Defendant made promises of employment for the specific purpose of inducing Plaintiffs to turn
down other job offers and that Plaintiffs relied on those representations in turning down those
offers. Id. at 619. Here, Plaintiffs have failed to provide evidence of any definite promises, let
alone that such promises were made for the purpose of inducing Plaintiffs to turn down specific
job offers and remain at Siemens. Critically, there is no evidence showing that Schlesinger,
Schoonover or Alpher even knew about any of the interview offers Plaintiffs received during the
relevant time period. Accordingly, Plaintiffs’ claims fail for lack of consideration. See id.
(explaining that “mere offers of employment that are declined are insufficient to satisfy the
requirement of consideration” and finding that plaintiff failed to establish consideration because
the defendant was not aware of his offer from the other employer and, thus, the “defendant’s
assurances could not have been intended to induce plaintiff to turn down that offer.”); see also
Maietta v. United Parcel Service, Inc., 749 F. Supp. 1344, 1365 (D.N.J. 1990) (“Assuming the
truth of [plaintiff’s] assertions, however, his receipt of these job offers does not constitute the
additional consideration necessary under Shebar to enforce an oral employment contract
providing for termination for cause only.”). Without evidence that the alleged promises made by
Schlesinger, Schoonover and Alpher “were made to induce [Plaintiffs] to reject specific job
offers . . . the bargained-for exchange necessary to enforce an employer’s oral promise to limit
its right to terminate an at-will employee is not present in the instant case.” Swider, 134 F. Supp.
2d at 619. Therefore, even if considered by this Court, Plaintiffs’ claim for breach of implied
contract would fail as a matter of law.
For the foregoing reasons, summary judgment is granted in favor of Defendant and all of
the claims in the complaint are hereby dismissed.
Date: January 11, 2018
Central Islip, New York
Joan M. Azrack
United States District Judge
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