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RICHARD DROWN v. MICHAEL FAILLACE

November 29, 2010

RICHARD DROWN,
PLAINTIFF,
v.
MICHAEL FAILLACE, ESQ., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Sheridan, U.S.D.J.

NOT FOR PUBLICATION

OPINION

This matter comes before the Court on a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c), filed by defendant Michael Faillace, Esq. and Michael Faillace & Associates, P.C. (collectively "Faillace"), seeking to dismiss the legal malpractice claims brought against them by plaintiff Richard Drown. Drown alleges that Faillace committed legal malpractice by failing to know and advise him of the correct statute of limitations for a potential claim under the New Jersey Law Against Discrimination (hereinafter the "NJLAD"), N.J.S.A. 10:5-4.1 et seq.; thereby causing Drown to be out of time to prosecute a claim against his former employer.

I. BACKGROUND

On or about August 13, 2003, Charles Schwab Capital Markets (hereinafter "Schwab") in Jersey City, New Jersey, extended an offer of employment to Drown for the position of Senior Staff Technology Services/EPT Production Support. Drown had been referred to this position by a former colleague, Rich Steiner, with whom Drown had worked in a prior position at Goldman Sachs/SLK Capital Markets. He was to be on-site in the Jersey City office of Schwab to ensure that the computer systems and programming facilitated uninterrupted electronic trading. He states that Schwab created this position for him; Faillace agrees that Schwab needed help setting up the program trading desk but does not expressly state that the position was created for Drown.

When he applied for the position, Drown signed an employment application, which stated that "Charles Schwab operates 24 hours a day, seven days per week; and weekend work, overtime (if applicable to me) and changes of schedule and geographic location may be required during my employment." Drown's offer of employment letter set his annual salary at $150,000 and noted that he would receive a $10,000 signing bonus upon his completion of thirty calendar days as an employee. It also stated that he was eligible to receive a target bonus of twenty-five percent of his annual salary.

Drown began working for Schwab on or about September 2, 2003, and was located at the electronic trading desk in Jersey City, New Jersey, while the rest of the IT team and his manager, Sanath Fernando, were located in San Francisco, California. Drown explained that his work environment, like any surrounding an IT person who supports program traders, was full of energy and commotion:

[A]t the end of the day, their [(traders)] compensation is based on their P and L, you know. For market makers, they have a constant flow so, you know, they make their money as the day goes by. For program traders it's much worse because the funds tend to send their order right before the close and they will send it like 15 minutes before the close, so during those 10 minutes everything has to be perfect, you know, so yes, people get extremely angry and, you know, they say, oh, this, you know, swearing system again, blah, blah, blah. People will break things. I've seen my [former] boss at Knight break a screen threatening one of my co-workers, but it's part of the drama, and as soon as it closes, the markets over, you know, for example, two traders that were arguing about something and looked like they were going to fight, then it's okay so are you going for a drink, yeah, we'll go for a drink, so, yes, it goes to extremes. [Ex. A. Pl.'s Dep: T77:8-78:1.]

Drown also described his position as "fire fighting" -- dealing with emergent, time sensitive matters. Drown contends that his ability to accomplish tasks as a programmer was complicated because the main trading system for Schwab and the FIX subsystem that was used to send and receive orders from different institutions were housed in Jersey City, but the program trading engines -- the main program trading software function -- were in San Francisco. His ability to support the trading desk was further complicated because Drown would not learn of upgrades to the main trading system until the system was non-responsive because the "black box" group was secretive.

Drown maintains that although serving as the local technology representative and programmer in Jersey City was his top priority, Fernando wanted him to engage in the non-programming task of data collection, which was not only very time consuming, but also a non-programming task in which he did not have experience. He states that such data collection was generally performed by auditors and that Fernando was not aware of the difficulty of obtaining such data. Drown explains that it was difficult to obtain the requested data because it was not clear where such data was maintained or the form in which it was maintained. He was only advised which group "owned" the data, and competition among the groups prevented access to information about the internals of their systems and how calculations were done. Drown asserts that he was sent on a "wild goose chase" because he was asked to collect perfect data, which did not exist. The time he spent chasing people around to get data files detracted from his ability to develop an understanding of EPT systems and data. He states that he had to prioritize his tasks and make the daily trading his top priority so that customers would be satisfied and would not take their business to a competitor.

At some point before March 2004, Drown had the impression that Fernando was dissatisfied with his performance. He realized that his performance was impaired and that he had to work longer hours to correct it. He also found that it took him longer than normal to complete tasks; therefore, around March or April 2004, Drown consulted Doctor Sue Nadesan, a general internist, to discuss complaints of fatigue and difficulty concentrating.

On April 6, 2004, as a result of consulting Dr. Nadesan, Drown advised Human Resources at Schwab, via e-mail, that he began taking Synthroid for a thyroid condition called Hashimoto's disease. Dr. Nadesan's office notes from April 26, 2004, reflected that Drown expressed that he was under a lot of stress and that "he [did] not like his job." On May 3, 2004, the Human Resources Director, Elizabeth DeMovic, sent Dr. Nadesan a letter requesting confirmation as to whether Drown required a reasonable accommodation and whether Drown would have any limitations in completing his work responsibilities. Initially, there was no response from Dr. Nadesan. Drown and DeMovic corresponded via e-mail regarding Dr. Nadesan's lack of response. Drown was responsive to DeMovic's e-mails and attempted to contact Dr. Nadesan to ask her to provide the requested information to Schwab.

On June 22, 2004, DeMovic sent a follow-up letter to Dr. Nadesan and included Drown's signed Authorization for Release of Medical Information Form. On or about July 26, 2004, Dr. Nadesan completed the Certification of Need for Reasonable Accommodation. That Certification asked: "Does your patient have a physical or mental impairment that substantially limits one or more of his/her major life functions, such as caring for himself/herself, performing manual tasks, walking, seeing, hearing, speaking, breathing, learning, working, sitting, standing, lifting, and reading?" Dr. Nadesan responded "No," and did not list that Drown had any limitation as a result of his thyroid condition. However, Dr. Nadesan wrote that "stress situations make him concentrate poorly and work slowly. Should improve once thyroid function levels normalize." Further, in response to the question, "would any job modification or accommodation enable your patient to perform the essential functions of his/her job," Dr. Nadesan checked "yes" and wrote "less stress." Dr. Nadesan wrote that such accommodation should last six months. DeMovic stated at her deposition that she had never seen an accommodation request of "less stress" in her experience and that such an accommodation would be hard to measure.

Drown explained during his deposition, that sixty percent of his time was generally spent on analysis and forty percent was spent on programming trading. Drown averred that it would have reduced his stress during that time to have the analysis portion of his position temporarily assigned to another employee. Drown contends in his Counter-Statement of Material Facts that Schwab could have temporarily taken away the non-essential task of data collection and data analysis, so that Drown could focus on supporting the trading desk. He maintains that he was not seeking as an accommodation, any change in the stress inherent in the job that he was experienced in and hired to perform at Schwab (i.e. the "firefighting" needed to support the trading desk). However, Faillace contends otherwise, saying that Drown essentially admitted that he would have to be paired with someone else to make his job easier.

On July 29, 2004, Drown, DeMovic, and Fernando held a teleconference to discuss Drown's work performance. The group discussed a Performance Memo, dated July 26, 2004, in which Drown was given a "written warning" for several job performance problems. The Memo stated:

Your work performance does not meet expectations and has been such as of your hire date of September 2003. . . .

On numerous occasions, beginning in November 2003, I have discussed your performance shortcomings with you, including a formal conversation on this topic that took place on Friday[,] February 6th and Monday[,] February 9th 2004. As of that conversation, your performance has deteriorated further leading to a "Corrective Action" rating for the recently concluded annual review period that ended in June 2004.

It is imperative that you make the necessary improvements immediately and sustain these improvements going forward.

The Memo also listed the following "Areas of Improvement":

! Understanding of EPT Systems (Matador/CRAM): Drown was unable to complete a project within 6 months that was reassigned and completed by someone else within one day;

! System Automation; ! Managing EPT Electronic Connections: Drown failed to assist in connecting new clients and his contribution towards daily operational duties were minimal; ! Daily Status Reports: Drown failed to provide such mandatory reports; ! Unexcused Absence: Drown took a two week vacation without notice or approval and was otherwise late to work or altogether absent without providing notice, thereby placing "the group at risk"; ! Working with San Francisco Staff: Drown failed to maintain phone contact with the

San Francisco team despite requests for daily end of day calls; ! Travel & Entertainment Expenses: Drown would use his personal card as opposed to the corporate credit card; and ! Accuracy and Dependability of Your Work.

Finally, the memo outlined the actions that Drown would need to take going forward. Drown disputes the accuracy of the criticisms in the Performance Memo.

During his deposition, Drown explained that he did not provide the daily status reports because "when you get to work at seven, 7:30, you spend all day running around and sometimes fire fighting, you know you always think, well, I'll do it tomorrow, and then as soon as you get in, something else." Drown also stated that he "just knew they weren't happy," and that he did not think that he was performing well.

Following the Performance Memo, Drown was absent from work on July 30, 2004, and August 2, 2004. In both instances, he e-mailed his manager in San Francisco, half-an-hour after the start of his 7:00 a.m. work day. On August 5, 2004, Drown was terminated. The Recommendation for Company Initiated Termination stated, "As a result of Richard's continued overall unsatisfactory performance and his inability to follow the procedures for reporting time-off, he is being terminated for unsatisfactory performance and attendance."

The parties in this case discuss Drown's subsequent work history, however, this Court does not believe that those facts are material to deciding the instant motion; ...


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