Court Rejects Claim for "Negligent Destruction of Employment Opportunity"

"The Court has found[] no case to support the proposition that an employer has a duty to fire an employee in a way that will not interfere with her future employment opportunities or to provide her with a letter of recommendation."


From Fischman v. Mitsubishi Chemical Holdings Am., Inc., decided last month by Judge Jesse M. Furman (S.D.N.Y.):

Finally, Defendants seek to dismiss a claim that Fischman styles "Negligent Destruction of Plaintiffs' [sic] Employment Opportunities." The allegations relevant to this claim "are identical to those supporting the claim for intentional infliction of emotional distress" — in short, that Fischman was not allowed to send a goodbye email to her colleagues and was escorted from the building when she was fired. In taking those steps, Fischman argues, "Defendants breached their duty of reasonable care by terminating [her] employment in a manner that all but guaranteed she would never work as an attorney again."

That claim borders on frivolous. "The elements of a negligence claim under New York law are: (i) a duty owed to the plaintiff by the defendant; (ii) breach of that duty; and (iii) injury substantially caused by that breach. If the defendant owes no duty to the plaintiff, the action must fail." Fischman cites, and the Court has found, no case to support the proposition that an employer has a duty to fire an employee in a way that will not interfere with her future employment opportunities or to provide her with a letter of recommendation. Nor does Fischman provide any factual support for her assertion that Defendants have "all but guaranteed" that she will not be able to find work as a lawyer again. Thus, whether construed as a negligence claim or as a claim for tortious interference with prospective economic advantage (which requires, at this stage, a factual allegation of a business relationship with a third party), this claim must also be dismissed.

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  1. I’d say having this lawsuit on her record is more likely to guarantee she won’t work as an attorney again.

    1. My thoughts exactly

    2. I dunno, she sounds the sort of gal Avanetti might hire.

  2. Could we get law schools to spend ten minutes on apostrophes?

    Plaintiffs: plural of plaintiff. “The plaintiffs allege that…”

    Plaintiff’s: 1. Possessive form of plaintiff. “The plaintiff’s car was damaged in the accident.” 2. Also, contraction for “plaintiff is.” having won the case the case, plaintiff’s heading for the bar to celebrate.”

    Plaintiffs’: Possessive form of plaintiffs. “The plaintiffs’ right to assemble was violated.”

    1. Grammar and capitalization and proof reading too.

      [H]aving won the case the case,

      1. Got me.

        Preview would be nice.

        1. Munphry’s Law. Any written comment pointing out a typo or grammatical error will contain a typo or grammatical error.

  3. “You must provide a good recommendation or you will get sued.”

    New company policy: Only give good recommendations.

    “If you provide a good recommendation but the employee is lousy at their next job, you will get sued.”

    New company policy: Give no recommendations.

    “You must provide a letter of recommendation or you will get sued.”

    New company policy: ???

    I’m suspecting a common thread between these.

    1. Every company I’ve been at for a decade or two has the policy of merely confirming employment dates and nothing else.

    2. Human resources is a minefield. There are several catch-22 situations where there is no legal course of action that will not get you sued.

  4. I hope the attorneys were paid up front.

  5. To be fair, the defendants offered silly arguments in favor of dismissal, asserting confidentiality and attorney-client privilege as a reason to dismiss (judge found nothing qualified as protected). And that was after defendants waited several months after the complaint was filed to assert the information should be sealed. Also, the plaintiff’s primary claim of retaliation, for complaining about pay discrimination, is not so silly – though found to lack evidentiary support. Lesson of case is that Mitsubishi Chemical Holdings America could use some good lawyers.

  6. Her discrimination complaint survived dismissal, and she won on her former employer’s attempt to claim confidential privilege prevented her entire lawsuit. She overpleaded, it’s true. But she won on what was probably always the core of her suit, and the part that survived doesn’t look so bad. Nor does her overpleading make her look incompetent.

    1. Good point, missed that!

  7. Is Furman the most productive judge in the country? Dude has some of the biggest class actions in the country and still has time to handle small fries like this.

  8. That claim borders on frivolous.

    But from which side was it approaching ? The land of “fairly reasonable” or the land of “utterly ridiculous” ?

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