HC2, Inc. v. Delaney

510 F.Supp.3d 86

HC2, INC., Plaintiff,

v.Andrew DELANEY, Defendant.

20-cv-3178 (LJL)

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

Signed December 18, 2020

Michael Nacchio, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Morristown, NJ, Valerie Lisa Weiss, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Madison, NJ, Ronald Robert Rossi, Kasowitz, Benson, Torres LLP, New York, NY, for Plaintiff.

Robert Rotman, Robert Rotman, Esq., New York, NY, for Defendant.

OPINION AND ORDER

LEWIS J. LIMAN, United States District Judge:

Plaintiff, Counterclaim-Defendant, HC2, Inc. ("HC2"), moves, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss the amended counterclaims at Dkt. No. 74 ("Amended Counterclaims") against it filed by Defendant, Counterclaim Plaintiff, Andrew Delaney ("Delaney"). See Dkt. Nos. 81 and 82.

For the following reasons, the motion is granted.

BACKGROUND

The following facts are taken from the answer and the Amended Counterclaims and the documents incorporated therein, and the paragraphs of the complaint that are admitted, all of which are assumed to be true for purposes of this motion only.

Delaney is a New York resident and lawyer admitted to practice in New York. HC2, which also does business under the name Hire Counsel, is a legal staffing agency incorporated in the District of Columbia with its principal place of business in Chicago, Illinois.

From September 30, 2019 to January 3, 2020 and again from February 18, 2020 to March 17, 2020, Delaney worked on an at-will basis for HC2 on a Thai language document review project (the "Project") for a law firm (the "Law Firm") and its client (the "Client"). Dkt. No. 74 ¶ 6. Pursuant to a three-way agreement, dated September 25, 2019, the Law Firm and the Client agreed to retain HC2 to provide attorneys proficient in Japanese and Thai languages to work on the Project, and HC2 agreed to maintain the confidences of the Law Firm and the Client in connection with such project. Id. ; Dkt No. 45-6. According to Delaney, the Project involved the review of documents related to an investigation of corrupt practices in Thailand. Dkt. No. 74 ¶ 7. Delaney worked on the Project from a document review center in New York City, sitting "several inches away from the other two reviewers in a small office with no windows." Id. ¶ 13.

Delaney makes a series of complaints about his treatment during his employment with HC2. On November 28, 2019, he "out of the blue and unexpectedly received a suspicious email to his personal email account from a well-connected, influential tax lawyer whose professional interests were at risk from the investigation." Id. ¶ 8. From November 29, 2019 to December 2, 2019, he complained to HC2 and to the Law Firm "about the misuse of his private information and involvement in th[e] document review." Id. ¶ 9.

On March 5, 2020, after a State of Emergency had been declared by New York Governor Andrew Cuomo as a result of the Covid-19 pandemic, HC2 sent an email to employees with the subject line "Inform—COVID 19 & Seasonal Flu—Update," stating: "Due to the nature of our business, we will continue to operate all our locations, but continue to take precautionary measures, such as reducing the number of contractors per review room." Id. ¶ 14 n.6. But throughout early March, Delaney alleges, HC2 "simply emailed workers to commute with wipes and to watch President Trump's speech on TV" and did not reduce the number of contractors per review room. Id. ¶ 14.¹

On March 17, 2020, Delaney came to the office "wearing a mask, latex gloves, and goggles which he bought on his own." Id. ¶ 15 n.7. That day and the previous day, he observed three workers at the office with "clear flu-like symptoms." Id. ¶ 30.

In the late morning of March 17, 2020, Delaney emailed HC2 and the Law Firm, copying his co-workers, complaining that "workers were coming into the office with flu-like symptoms," and asking "if they could either work remotely or short of that if they could stay at home with pay while still being on document review." Id. ¶¶ 15, 30. The email (with redactions) read as follows:

Dear [representative of the Law Firm] & Hire Counsel: I have been coming in to work during the coronavirus but there are at least 3 people in the office who have flu-like symptoms—coughing, sneezing, runny nose—who are at the office, both yesterday & today. This office is quite a closed environment. Obviously this poses a health risk. I wear a mask and gloves but except for my two [redacted] colleagues others are not.

‘Patti Ayala’ of Hire Counsel HR sent two emails, the first saying that clients in some cases were still requiring us to come into the office but that we employees should make our ‘own choice’ as to whether we felt like coming into the office or not & the second telling us to listen to the president's speech. Frankly, these emails were extremely unhelpful & seemed to shift the responsibility to the employees.

We have asked for a remote work option which many other similarly confidential cases & projects have. The agency, the law firm, & the client are [redacted]. I care about the case & doing a good job but do not feel that the working environment is safe. Contrary to HC HR, this is not my problem or merely my perception. I believe we should be either allowed to work from home or be paid to stay at home. Thank you for your attention.

Dkt. No. 74-2.

Delaney's email was sent at 11:27 a.m. An hour and a half later, at 1:02 p.m., HC2 responded to Delaney's email by stating that remote work was not an option. Dkt. No. 74 ¶ 20. Shortly thereafter, HC2 sent an email to Delaney and the two other Thai language reviewers in the office stating as follows:

Team, we understand and appreciate everyone's concerns regarding the work environment and well-being of those around you. Most importantly, we understand the need for an immediate response regarding remote work. At this time, the client is electing to suspend work on the case in NYC effective immediately. Please note that remote work has not been authorized for this project, as of now. If a decision to re-start the project in NYC is made, we will contact you—directly. We are requesting all team members to gather their belongings and depart the facility in an orderly fashion and exit our environment since the project is effectively ending. You will be compensated for your time today. We will continue to monitor the efforts of Congress in helping to off-set the impact of lost work.

We appreciate your efforts and will be back in touch.

Dkt No. 39-4.

Between Delaney's 11:27 a.m. email and HC2's response at 1:02 p.m., HC2 representatives and a Law Firm representative had email correspondence about Delaney's email. Most of the email correspondence is redacted. In a portion attached to the Amended Counterclaims that is not redacted, and that precedes the HC2 email to Delaney and others announcing that work was being suspended in the New York office, an HC2 representative asks a Law Firm representative: "Can we fire him? Just a thought." Dkt. No. 74-2. The exhibits to the Amended Counterclaims do not contain a copy of any email responding to this query.

Delaney and HC2 thereafter disputed the basis and consequences of the Project's suspension and the termination of Delaney's employment. On March 30, 2020, in response to a series of emails from Delaney that "reflect[ed] a misunderstanding about his employment situation and status," Dkt. No. 45-26, HC2 sent an email to Delaney's lawyer, reminding Delaney that he had obligations under his employment agreement and the HC2 employee handbook:

On Friday, March 27, 2020, we received a series of emails from Mr. Delaney that appear to reflect a misunderstanding about his employment situation and status, and we felt it was necessary to address a couple of points that he made in his emails to ensure we have a clear understanding. In his email, he mentioned that he was not an employee of Hire Counsel. While that may currently be true, he certainly was an employee of Hire Counsel while assigned to work on the Wilmer Hale project in New York. Hire Counsel hired him to service its client, Wilmer Hale, and he was paid by Hire Counsel as a W-2 employee. He worked onsite at a Hire Counsel facility using a Hire Counsel computer. His direct supervisor during the project was also a Hire Counsel employee. He was also subject to a Hire Counsel employment agreement, which he had signed, and an employee handbook that he acknowledged.

....

Mr. Delaney was not illegally terminated. Hire Counsel lawfully terminated his employment—and the employment of two other reviewers—when the services performed by Hire Counsel at its New York facility were legitimately suspended by Wilmer Hale due to health concerns over the COVID-19 outbreak.

Id.

Two weeks later, on April 15, 2020, Delaney filed a complaint under the pseudonym John Doe against the Client and two others in state court in Florida (the "Florida Action"), the state in which Delaney was then residing. Dkt. No. 74 ¶ 25. According to the allegations of HC2's complaint in this action, which Delaney denies, the Florida Action alleged that HC2 had engaged in unlawful business practices and retaliatory termination in connection with the Project.

One week later, HC2 filed its complaint in this action, alleging claims for breach of contract and "faithless servant," and seeking preliminary and permanent injunctive relief. Id. ¶ 26; see Dkt No. 1. HC2 alleged that the Law Firm had "suspended the Project as the number of COVID-19 infections in New York City was increasing at an alarming rate, while it considered whether, given the highly confidential subject matter of the Project, it wished to continue the Project remotely," Dkt. No. 1 ¶ 3, and that Delaney, apparently disgruntled with that decision, had "set out to manufacture a false claim" that his employment had been terminated for his having raised concerns about the potential for exposure to COVID-19," id. ¶ 5. HC2 complained that Delaney, directly and...