Delville v. Firmenich Inc.

920 F.Supp.2d 446

Jean Claude DELVILLE, Plaintiff,

v.FIRMENICH INCORPORATED, Defendant.

No. 08 Civ. 10891(JPO).

United States District Court, S.D. New York.

Jan. 31, 2013.

Anne L. Clark, Jeremiah Joseph Iadevaia, Vladeck, Waldman, Elias & Engelhard, P.C., New York, NY, for Plaintiff.

Gregory Bertram Reilly, III, A. Michael Weber, Anna Nesterova, Littler Mendelson, P.C., New York, NY, for Defendant.

MEMORANDUM AND ORDER

J. PAUL OETKEN, District Judge.

This action involves federal, state, and common law claims and counterclaims by and between Jean Claude Delville (“Plaintiff” or “Delville”) and his former employer, Firmenich Incorporated (“Defendant,” “the Company,” or “Firmenich”). Delville claims that Firmenich (1) discriminated against him on the basis of his age, in violation of the Age Discrimination in Employment Act (“ADEA”), 29 U.S.C. § 621, et seq. (“First Claim”), the New York State Human Rights Law (“NYSHRL”), N.Y. Executive Law § 290, et seq. (“Second Claim”), and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Administrative Code § 8–107, et seq. (“Third Claim”); (2) retaliated against him in violation of ADEA (“Fourth Claim”), NYSHRL (“Fifth Claim”); and NYCHRL (“Sixth Claim”); and (3) breached its contract with him respecting Firmenich's deferred compensation plan (“the CAP plan”) and Incentive Compensation Plan (“Seventh Claim”). Firmenich counters that Delville (1) breached his contract with Firmenich (“First Counterclaim”); (2) breached his fiduciary duties to Firmenich (“Second Counterclaim”); (3) breached his common law duty of loyalty to Firmenich (“Third Counterclaim”); (4) engaged in unfair competition (“Fourth Counterclaim”); and (5) misappropriated Firmenich's property (“Fifth Counterclaim”).¹

Before the Court are cross-motions for summary judgment. For the reasons that follow, Plaintiff's motion for summary judgment is granted in part and denied in part, and Defendant's motion for summary judgment is denied.

I. BackgroundA. Factual Background

The facts set forth below are taken from the parties' Rule 56.1 Statements and the record evidence cited in those Statements. ( See Dkt. No. 33 (“Def.'s 56.1”), Dkt. No. 27 (“Pl.'s 56.1”), Dkt. No. 48 (“Def.'s 56.1 in Opp'n.”), Dkt. No. 49 (“Pl.'s 56.1 in Opp'n.”).) ²

1. The Parties

Firmenich is part of the Firmenich Group, a prominent, international manufacturer of perfumes and flavors. (Pl.'s 56.1 at ¶ 1.) Firmenich Group has offices in New York, New Jersey, and Europe.

Delville was born March 2, 1949, making him 58 years old at the time of his departure from Firmenich. He is a lifelong perfumer—which is to say, he creates perfumes. This is no ordinary skill. Perfuming is a “combination of art, pharmacy, pharmacology and chemistry,” and practitioners are handsomely rewarded for their talents. (Def.'s 56.1 at ¶¶ 10–11, 25–30.) Delville worked for Firmenich in Paris from 1984–1986, and then rejoined the company in 2000. ( Id. at ¶¶ 12, 18; Pl.'s 56.1 at ¶ 8.) In between his stints at Firmenich, Delville worked for another renowned fragrance manufacturer, International Flavors & Fragrance (“IFF”), where he created “Happy,” one of the highest grossing perfumes of all time. (Def.'s 56.1 at ¶ 14.)

During his second stint at Firmenich, Delville specialized in making fine fragrances. (Pl.'s 56.1 at ¶ 43.) As a fragrance perfumer, Delville reported to Jerry Vittoria (“Vittoria”). ( Id. at ¶¶ 44, 48.)

When Delville rejoined Firmenich, his then-girlfriend and future wife, Mireya Zendejas (“Zendejas”), also left IFF to work at Firmenich. (Pl.'s 56.1 in Opp'n. at ¶ 123; see also Dkt. No. 29 (“Zendejas Decl.”) at ¶ 3.) Zendejas remained at Firmenich until 2008, the year following the departure of her husband. ( Id.) Zendejas is eighteen years Delville's junior.

2. The Parties' Agreements

On April 1, 2000, the parties entered into an employment agreement (“the Employment Agreement” or “the Agreement”). (Dkt. No. 30 (“Clark Decl.”), Ex. 10 (“Emply.Agrmt.”).) The Employment Agreement provides for Delville's employment with Firmenich from April 1, 2000 to March 31, 2003. ( Id. at 1.) It also states that, unless Firmenich gave Delville notice of its intention not to renew to the Employment Agreement by March 31, 2003, it would be automatically renewed for another year. ( Id.) The Employment Agreement only allows Firmenich to terminate Delville for “Cause,” “Death,” or “Disability.” ( Id. at 3–5.)

Under the Employment Agreement, Delville was to receive a base salary of $425,000; a yearly contribution in the CAP plan of $50,000; and the opportunity to earn up to an addition $150,000 annually under the Incentive Compensation Plan. ( Id. at 2–3.)

The Employment Agreement also contains the following language (“the Merger Clause”): “This Agreement contains the entire agreement between [the parties] with respect to the transaction contemplated herein and supersedes all previous” agreements. ( Id. at. 9–10.) Further, the Employment Agreement states that its “terms shall not be altered or otherwise amended except pursuant to an instrument in writing signed by each of the parties hereto and making specific reference to this agreement.” ( Id. at 10.)

In May 2004, the parties executed an amended employment agreement (“the Amended Employment Agreement”), alteringseveral terms of the original Employment Agreement. (Clark Decl. Ex 14 (“Amend. Emply. Agrmt.”).) The other written agreement relevant to this case is the “Employee's Secrecy Agreement” (“the Secrecy Agreement”), executed on April 5, 2000. (Clark Decl. Ex. 11 (“Sec. Agrmt.”).)

a. The CAP Plan

There are in fact two CAP plans relevant to this litigation: the CAP I plan, amended as of July 1, 2002, and the CAP II plan, dated January 1, 2005. (Dkt. No. 35 (“Murad Decl.”), Exs. D (“CAP I”) and E (“CAP II”).) CAP I provides that “[a] Participant shall have a 100% nonforfeitable interest in the Participant's Employee Deferral Contributions and Supplemental Employer Contributions which are credited under the Plan, unless the Committee establishes a vesting schedule for any Supplemental Employer Contributions ....” (CAP I at 11.) CAP I has a penalty provision, which states that

[i]f a Participant terminates employment with Firmenich for any reason ... and begins to work for any competitor prior to or subsequent to the payment of all distributions, as determined within Firmenich's complete discretion, the value of any Account ... shall be “frozen” as of the occurrence of such an event, and all payments shall be delayed or suspended.

( Id. (emphasis in original).)

Under CAP II's penalty provision, an employee's account is not frozen if he leaves for a competitor; pursuant to CAP II, the employer contributions to the CAP plan are forfeited, but not the employee contributions. (CAP II at 22.) The entirety of Plaintiff's CAP II account consisted of contributions made by Plaintiff. (Clark Decl., Ex. 71; Dkt. No. 41 (“Delville Decl. in Opp'n.”) at ¶ 11.) Pursuant to CAP II, distributions were to be made at the employee's departure. (CAP II at 17.)

Under the Employment Agreement, Firmenich was to “make an initial, fully vested contribution equal to $50,000 to a bookkeeping account on [Delville's] behalf” to the CAP Plan. Thereafter, Firmenich was to “make subsequent annual, fully vested contributions of $50,000 per year ... within 30 days after the end of each complete year of employment as long as [Delville] remains an active employee of [Firmenich].” (Emply. Agrmt. at 3.) The parties' Amended Employment Agreement, executed in May 2004, increased Firmenich's contributions to Delville's CAP account “from $50,000 to $60,000.” (Amend. Emply. Agrmt.) Firmenich contends that the parties' agreement as to the CAP plan was thereafter altered again, and that the parties agreed to reduce Firmenich's contributions back down to $50,000 per annum for 2005 and 2006. In any event, for 2005 and 2006, Firmenich contributed $50,000 into Delville's account under the CAP plan. (Clark Decl., Ex. 19.)

b. Incentive Compensation Plan

Pursuant to the Employment Agreement, Delville was a “participa[nt] in the Firmenich Perfumers Incentive Compensation Plan.” (Emply. Agrmt. at 2.). The Incentive Compensation Plan, as outlined in Delville's Employment Agreement, provides that

The Employees shall be entitled to earn an Incentive Compensation Award of up to $150,000 per year. In order to achieve the maximum incentive award, the Employee must create fragrances which, in the aggregate, have adoption values [ ³] in excess of $5,000,000 per year. A minimum bonus of $100,000 per year shall be guaranteed for the first two years of employment.... Thereafter, bonus shall be paid in accordance with the terms of the Incentive Compensation Plan ( i.e., on a fiscal year basis commencing on each July 1 and ending on the following June 30). The calculation of actual bonus payments shall be based upon a graduated scale, using objective and subjective factors to determine bonuses, such as the joint collaborative efforts of the Employee with any other employees. In determining bonuses, the following ranges shall be used as nonbinding guidelines by the Company:

i. Adoptions equal to $1 million or more—approximate bonus $37,500.

ii. Adoptions equal to $2.5 million or more—approximate bonus $75,000.

iii. Adoptions equal to $5 million or more—approximate bonus $150,000.

( Id. at 2–3 (emphasis in original).)

An October 12, 1999 memo on incentive compensation (“Incentive Compensation Memo”), which provides additional detail on the Incentive Compensation Plan, explains that perfumers receive a bonus of some sort if their adoptions exceed $500,000, but receive no bonus if their adoptions fall below $500,000. (Clark Decl. in Opp'n., Ex 11 (“Incent.Comp.Mem.”).) According to the Memo, the Plan provided a range of bonuses for perfumers based on estimated sales; based on adoption value, perfumers were to be awarded a percentage of his base salary in terms of months. If...