Annese v. Sodexo, Inc.

Filing 18

MEMORANDUM-DECISION and ORDER granting 12 Motion to Dismiss. Signed by Chief Judge Gary L. Sharpe on 7/2/2012. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
PHILLIP ANNESE,
Plaintiff,

5:12-cv-412
(GLS/TWD)

v.
SODEXO, INC.,
Defendant.
________________________________
APPEARANCES:
OF COUNSEL:
FOR THE PLAINTIFF:
Lama Law Firm
2343 N. Triphammer Road
Ithaca, NY 14850
FOR THE DEFENDANT:
Harris, Beach Law Firm
99 Garnsey Road
Pittsford, NY 14534

LUCIANO L. LAMA, ESQ.

DANIEL J. MOORE, ESQ.

Gary L. Sharpe
Chief Judge
MEMORANDUM-DECISION AND ORDER
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.

Facts1
On May 3, 2000, Sodexo offered Annese—who, at the time, had

been working for another company—employment. (See Am. Compl. ¶¶ 57; 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,
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The facts are drawn from the Amended Complaint and a written offer of employment,
which was submitted by Sodexo in support of its motion. (See Dkt. No. 12, Attach. 2 at 11-13.)
While motions to dismiss are typically reviewed considering only the facts contained within the
four corners of the complaint, as discussed thoroughly below, (see infra Part IV.), the written
offer of employment is integral to the Amended Complaint, and, therefore, will be considered
as well. See Roth v. Jennings, 489 F.3d 499, 509 (2d Cir. 2007).

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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,2
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
2

The Amended Complaint sheds no light on the date that Annese was terminated.

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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
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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.)3
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.4 In any event, Sodexo’s motion

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The parties do not dispute, and the court agrees, that New York law applies to
Annese’s claims in this diversity action.
4

The court further notes that the assertions of counsel for Annese that Baron v. Inc.
Vill. of Freeport, 143 A.D.2d 792 (2d Dep’t 1988), among other cases, held that “a motion to
dismiss [is] premature [if] no depositions ha[ve] been conducted” is a blatant, though likely
unintentional, misstatement of the law. (Dkt. No. 14 at 16.) The cited cases—and N.Y.
C.P.L.R. § 3212 (McKinney 2005)—pertain to summary judgment motions, not motions to
dismiss. Moreover, New York law has no bearing on the issue of whether Sodexo’s motion,
which was filed pursuant to the Federal Rules of Civil Procedure, is premature.

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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]ourt.” (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
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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 be considered, but he specifically relies upon the 1999 policy in
opposition. (See Dkt. No. 14 at 3.) Annese also references additional
materials that he claims were provided with the 2009 handbook in his
opposition papers. (See id.; Dkt. No. 15, Attach. 1 at 2, 4, 6.)
“‘[W]hen a plaintiff chooses not to attach to the complaint or
incorporate by reference a [document] upon which it solely relies and which
is integral to the complaint,’ the court may nevertheless take the document
into consideration in deciding the defendant’s motion to dismiss.” Int’l
Audiotext Network, Inc. v. Am. Tel. and Tel. Co., 62 F.3d 69, 72 (2d Cir.
1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d
Cir. 1991)). Passing references to documents outside of the complaint,
however, do not incorporate them into the complaint. See Williams v. Time
Warner Inc., 440 F. App’x 7, 9 (2d Cir. 2011). Indeed, the complaint must
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heavily rely upon the document’s “‘terms and effect’” to be considered
“‘integral’ to the complaint.” Chambers v. Time Warner, Inc., 282 F.3d 147,
153 (2d Cir. 2002) (quoting Int’l Audiotext, 62 F.3d at 72)).
Here, no documents were attached to the Amended Complaint, nor
were any incorporated by reference. (See generally Am. Compl.) The
court is satisfied, however, that the written offer of employment dated May
3, 2000, which was submitted as an attachment to Stancil’s declaration, is
integral to the Amended Complaint, and, thus, may be considered in
resolving the pending motion.5 (See Dkt. No. 12, Attach. 2 at 11-13.) That
offer letter is referenced several times in the Amended Complaint and
Annese clearly relies heavily on its terms and effect. (See Am. Compl.
¶¶ 7, 10, 56.) As for the host of other documents submitted by Sodexo,
none of them are integral to the Amended Complaint. The
acknowledgments, company policies, and constructive counseling notice
are never referenced in the Amended Complaint and Annese does not rely
on them at all. In addition, because Annese does not even allege when he
was terminated, the 2002, 2006, and 2009 handbooks have no apparent

5

The employment handbook in effect at the time Annese received the written offer of
employment is undoubtedly integral to the Complaint as well. Inasmuch as neither party has
offered that document, however, the court cannot consider it.

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bearing on Annese’s claims.6 Accordingly, the court will limit its review to
the allegations in the Amended Complaint and the written offer of
employment dated May 3, 2000.
A.

Promissory Estoppel, Fraud, and Negligent Misrepresentation
Claims
“The elements of a claim for promissory estoppel are: (1) a promise

that is sufficiently clear and unambiguous; (2) reasonable reliance on the
promise by a party; and (3) injury caused by the reliance.” MatlinPatterson
ATA Holdings LLC v. Fed. Express Corp., 87 A.D.3d 836, 842-43 (1st
Dep’t 2011); see Schwartz v. Miltz, 77 A.D.3d 723, 724 (2d Dep’t 2010).
On a claim of fraud, “the plaintiff must prove a misrepresentation or a
material omission of fact which was false and known to be false by
defendant, made for the purpose of inducing the other party to rely upon it,
justifiable reliance of the other party on the misrepresentation or material
omission, and injury.” Lama Holding Co. v. Smith Barney Inc., 88 N.Y.2d
413, 421 (1996). Finally, negligent misrepresentation requires that the
plaintiff show: “(1) the existence of a special or privity-like relationship

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Sodexo essentially concedes as much by noting that “[i]t would have been impossible
for [Annese] to have relied on the specific provision of the 2002, 2006, or 2009 Employee
Handbooks when considering Sodexo’s offer of employment in May of 2000.” (Dkt. No. 12,
Attach. 3 at 12 n.3.)

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imposing a duty on the defendant to impart correct information to the
plaintiff; (2) that the information was incorrect; and (3) reasonable reliance
on the information.” J.A.O. Acquisition Corp. v. Stavitsky, 8 N.Y.3d 144,
148 (2007). Common to all three claims, the plaintiff must demonstrate the
element of reasonable or justifiable reliance.
In New York, “‘absent an agreement establishing a fixed duration, an
employment relationship is presumed to be a hiring at will, terminable at
any time by either party.’” Goldman v. White Plains Ctr. for Nursing Care,
LLC, 11 N.Y.3d 173, 177 (2008) (quoting Sabetay v. Sterling Drug, Inc., 69
N.Y.2d 329, 333 (1987)). The practical consequence of this default rule is
that reasonable reliance on protective provisions contained in an
employer’s policies or handbooks cannot typically be established as a
matter of law. See Marino v. Oakwood Care Ctr., 5 A.D.3d 740 (2d Dep’t
2004) (“[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 estoppel.”); Arias v. Women in Need, Inc., 274 A.D.2d 353, 354
(1st Dep’t 2000); but see Braddock v. Braddock, 60 A.D.3d 84, 88-96 (1st
Dep’t 2009) (acknowledging that under facts not present here, an at-will
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employee may be able to make out reasonable reliance). In other words,
an at-will employee can almost never establish that he reasonably relied on
a representation of his employer.
Here, Annese cannot, as a matter of law, establish that he
reasonably relied upon any promises of Sodexo regarding the disciplinary
procedure set out in the handbook in force at the time he was hired in
2000. As the Amended Complaint states, the relevant handbook “set forth
a procedure for written warning, investigatory suspension, and termination
of employment.” (Am. Compl. ¶¶ 13, 25, 61.) The handbook went on to
“promise that [Annese] would be treated fairly in all dealings with [Sodexo]
as employer.” (Id. ¶¶ 19-24.) However, as alleged by Annese, the
handbook also explained that Sodexo “reserve[d] the right in its discretion
to modify or discontinue any of the provisions in th[e] Employee Handbook
or to decide that they do not apply, or how they might apply to a given
case.” (Id. ¶ 27.) Moreover, Annese acknowledges “that the handbook
itself did not constitute a contractual relationship.” (Id. ¶ 29.) More
importantly, the offer of employment letter Annese signed in May 2000
clearly and unambiguously expressed that Sodexo did “not offer
employment on a fixed term basis, and the terms of th[e] letter [were] not
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[to] be construed in any manner as a proposed contract for any such term.”
(Dkt. No. 12, Attach. 2 at 12.) The letter went on to make clear that either
Annese or Sodexo could “terminate the employment at any time, for any
reason, and with or without cause.” (Id.)
The foregoing facts demonstrate that Annese was an at-will
employee who was not entitled to rely on any representations made by
Sodexo in the paper work it provided to him. See Bower v. Atlis Sys., Inc.,
182 A.D.2d 951, 953 (3d Dep’t 1992) (“[T]he fact that an at-will employee
may be terminated without cause at any time negates plaintiff’s claim of
reasonable reliance.”). Moreover, the handbook expressly stated that it
was not a contract, and that the policies, including the relevant disciplinary
provisions, were discretionary in nature. (See Am. Compl. ¶¶ 27, 29.)
Thus, Annese’s claims for promissory estoppel, fraud, and negligent
misrepresentation all fail because he cannot establish an essential
element.
B.

Breach of Express and Implied Employment Contract Claim
While New York law recognizes “an action for breach of contract

when plaintiff can show that the employer made its employee aware of an
express written policy limiting the right of discharge and the employee
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detrimentally relied on that policy in accepting employment,” employee
handbooks and policy statements, which set forth provisions protecting an
employee from termination, do not create a contract where those
documents also contain an “explicit disclaimer of a contractual relationship
. . . [that] clearly preserves [the employer]’s right to maintain an at-will
employment relationship with plaintiff.” Lobosco v. N.Y. Tel. Co./NYEX, 96
N.Y.2d 312, 316-17 (2001); see Weiner v. McGraw-Hill, Inc., 57 N.Y.2d
458, 466-67 (1982); Verricchio v. Fed. Express. Corp., No. 3:09-cv-1376,
2011 WL 831430, at * 4 (N.D.N.Y. Mar. 3, 2011) (“An explicit disclaimer on
a contractual relationship will defeat any claim of a contractual
relationship.”).
Here, because Annese cannot state a claim, his breach of express
and implied employment contract claim also fails. As explained above,
(see supra Part IV.A), Annese was an at-will employee of Sodexo and he
does not even allege that any express agreement to the contrary existed
between he and Sodexo. Fatal to this claim, the handbook in force when
Annese was offered a position with Sodexo contained a disclaimer making
clear that it “did not constitute a contractual relationship,” thereby
preserving Annese’s status as an at-will employee. (Am. Compl. ¶ 29.) As
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articulated in Lobosco, “[a]n employee seeking to rely on a provision
arguably creating a promise must also be held to reliance on the
disclaimer.” 96 N.Y.2d at 317. Thus, Annese’s final claim must be
dismissed.
V. Conclusion
WHEREFORE, for the foregoing reasons, it is hereby
ORDERED that Sodexo’s motion to dismiss (Dkt. No. 12) is
GRANTED; and it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this MemorandumDecision and Order to the parties.
IT IS SO ORDERED.
July 2, 2012
Albany, New York

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