Chimarev v. TD Waterhouse Investor Services, Inc.

Citation: 99 F. App'x 259Docket: No. 03-7916

Court: Court of Appeals for the Second Circuit; May 6, 2004; Federal Appellate Court

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The district court's judgment from August 4, 2003, is affirmed. Plaintiff Aleksandre Chimarev appealed the grant of summary judgment in favor of TD Waterhouse Investor Services, Inc. and the denial of his cross-motion for summary judgment. Chimarev's claims originated in state court, alleging employment discrimination based on national origin and other employment-related issues following his termination in 2001. 

The court reviewed the summary judgment de novo, favoring the non-moving party, and confirmed that summary judgment is warranted when there are no genuine issues of material fact. 

For Title VII claims, the court noted that employers cannot discriminate based on national origin, but plaintiffs must first exhaust administrative remedies by filing a timely complaint with the EEOC. Chimarev did not file such a complaint, thus barring his Title VII claims for discrimination, harassment, and retaliatory discharge.

Regarding wage and severance claims, Chimarev acknowledged his immediate termination on February 7, 2001, and provided no evidence supporting his entitlement to post-termination wages or severance benefits under the Fair Labor Standards Act or state labor laws, which do not grant rights to additional payments after termination.

On privacy claims, the court ruled that 5 U.S.C. 552a pertains to government agencies, not private employers, and that New York's privacy laws do not apply as Chimarev's circumstances did not involve unauthorized commercial use of his name or likeness.

Chimarev's state law claims against TD Waterhouse are largely unviable due to his status as an at-will employee, which prevents him from suing for breach of contract following his termination. New York law does not recognize a breach of contract claim in such circumstances unless there is evidence of an express written policy that limits the employer's discharge rights, which Chimarev has not demonstrated. Additionally, he cannot pursue tort claims based on public policy or implied covenants of good faith and fair dealing. Claims of fraudulent hiring aimed at appropriating his expertise are also barred due to his at-will employment status. Furthermore, Chimarev's evidence of rude and discriminatory treatment does not meet the stringent standard required for an intentional infliction of emotional distress claim, which necessitates conduct that is exceptionally outrageous. Consequently, the court granted summary judgment in favor of TD Waterhouse on all claims.

Regarding Chimarev's motion to amend his complaint, the district court's decision is reviewed for abuse of discretion. The proposed amendments were deemed futile, as Chimarev failed to exhaust administrative remedies for an age discrimination claim. A suggested defamation claim based on negative comments made during litigation was also dismissed due to absolute privilege under New York law. Moreover, a belated allegation of past defamation to obstruct a transfer lacked evidentiary support and was rejected, as employers have the right to evaluate employee performance without facing defamation claims for negative assessments.

Chimarev's claim of abuse of discretion by the district court in managing discovery is rejected. The court did not err in refusing to reopen discovery for Chimarev's age discrimination claim, which was procedurally barred due to failure to exhaust administrative remedies. Additionally, the court's denial of Chimarev's request to depose a TD Waterhouse employee post-discovery is upheld, as Chimarev previously indicated a preference for written communication over depositions. The court had allowed him to submit further interrogatories after discovery closed, but he did not adhere to the guideline of asking only simple, non-argumentative questions. Despite his complaints about TD Waterhouse's alleged discovery misconduct, he did not provide evidence of destroyed materials and failed to request sanctions in the district court, rendering this issue not reviewable on appeal. Furthermore, Chimarev's failure to contest the removal of his case at the district court level precludes him from raising it on appeal. Consequently, the district court's August 4, 2003 judgment is affirmed, as all of Chimarev's appeal points are found to lack merit.