ARGUSH v. LPL FINANCIAL, LLC et al, No. 3:2013cv07821 - Document 147 (D.N.J. 2016)

Court Description: OPINION. Signed by Judge Anne E. Thompson on 12/23/2016. (km)
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ARGUSH v. LPL FINANCIAL, LLC et al Doc. 147 NOT FOR PUBLICATION RECEIVED UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY DEC 23 2016 AT8:30_M WILLIAM T. WALSH CLERK LEEARGUSH, Plaintiff, Civ. No. 13-7821 v. LPL FINANCIAL, LLC, LPL HOLDINGS INC., ANDREW PUTTERMAN, and FORTIGENT, LLC, Defendants. ALAN GAVORNIK, Plaintiff, Civ. No. 14-955 (consolidated for pretrial purposes) v. 11 I LPL FINANCIAL, LLC, LPL HOLDINGS INC., ANDREW and fORTIGENT; LLC,-- I Defendants. NICHOLAS MARINELLO, · Plaintiff, No. 14-956- (consolidated for pretrial purposes) 1 .. v. LPL FINANCIAL, LLC, LPL HOLDINGS INC., ANDREW PUTTERMAN, and FORTIGENT, LLC, 'II . · OPINION· -- · 1· 1, Defendants. THOMPSON, U.S.D.J. I· .I I I 1 . 11 Dockets.Justia.com ' I ' I INTRODUCTION This matter is before the Court upon multiple motions. Two of the three plaintiffs in the above-captioned cases consolidated for pretrial purposes, Alan Gavornik and Nicholas Marinello (collectively "Gavomik and Marinello"), have each moved for partial summary judgment on liability. (Civ. No. 14-955, ECF No. 33; Civ. No. 14-956, ECF No. 33). Defendants LPL Financial, LLC ("LPL Financial") and LPL Holdings, Inc. ("LPL Holdings") (collectively "LPL" or ''Defendants") oppose both motions. (Civ. No. 14-955, ECF No. 44; Civ. No. 14-956, ECF No. 43). Plaintiff Lee Argush ("Argush") has not moved for summary judgment. Defendants have moved for partial summary judgment on Counts Two and Three ofGavornik and Marinello's respective complaints. (Civ. No. 13-7821, ECF No. 92). Gavornik and Marinello oppose Defendants' motions. (Civ. No.13-7821, ECF No. 114). Defendants have also moved for partial summary judgment on Counts Three and Seven of Argush's Complaint. (Civ. No. 137821, ECF No. 91). Argush opposes Defendants' motion. (Civ. No. 13-7821, ECF No. 112). 11 The Court will address all of the parties' motions in this omnibus opinion. The Court has i1 I decided themotions based on the written submissions of the parties and a hearing held on October 20, 2016. For the reasons stated herein;:Plaintiffs Gavomik will be denied and Defendants' motions wiU:be motions. _ -1. 1· BACKGROUND This case arises out-of art _employment dispute between the 11 named Plaintiffs and I -_:1 Defendant LPL Financial. Plaintiffs Argush, and Marinello (collectively "Plaintiffs") are former employees of LPL Financial. LPL Holdings is the parent company of LPL Financial. All three Plaintiffs had their employment tenninated by LPL Financial in 2013. The main issue is whether each of the three Plaintiffs were validly terminated "for cause." 2 1: !I - "i • Prior to June 2011, Plaintiffs were directors and senior officers of Concord Wealth Management Group ("Concord"). At that time, Concord was jointly owned by American Capital Acquisition Partners, LLC ("ACAP") and Financial Services Partners Fund I, LLC ("Financial Services") (collectively "Sellers"). Plaintiffs were the sole members and owners of ACAP. In I June 2011, Concord, through its parent entity, was acquired by LPL Holdings. The terms of LPL Holdings' acquisition of Concord were set out in a document called the Stock Purchase Agreement ("SP A"). I Beginning in June 2011, Plaintiffs became employed by LPL Financial. Both prior to and following the acquisition of Concord by LPL Holdings, Plaintiffs were physically based in an office in Matawan, New Jersey. The Plaintiffs individually executed multiple documents concerning their employment relationship with LPL Financial including Employment Agreements, Stock Option Agreements, and the SPA. The SPA contained a Delaware choice of law provision, while the Employment Agreements contained no choice of law provision. Under the employment agreements, in the event Plaintiffs were terminated; Plaintiffs .. · were to receive certain benefits including salary, stock options, and a pro rata bonus for the year-. of :}f 1: . Ii. Plaintiffs would p.o_t re<?eive some of these .,,_ "for cause'' that governed the empio)rmenttelationship between the individual Plaintiffs and LPL Financial was contained in the termination for Under the SPA, is defined-as follows: .· . . . - . such Person's duties as an employee of LPL (other than. a8 a resulfof a permanent disability) for a period of ninety (90) days following notice to LPL to such Person ofsuch failure; (2) fraud, embezzlement, dishonesty or theft in connection with such Person's duties; (3) an act or acts --constituting a felony, a violation of anyfederal or state securities or banking law or a misdemeanor involving moral turpitude; (4) willful misfeasance, willful misconduct; or gross negligence in connection with such Person 's duties or an act or omission which is injurious to the financial condition or business reputation of LPL; or (5) breach of this Section 6.09. ' I I I 3 ' (Civ. No. 14-955, ECF No, 33-3, Levy Deel. Ex. A.) (emphasis added). I. Plaintiffs Gavomik and Marinello LPL Financial terminated Plaintiffs Gavornik and Marinello on December 27, 2013. LPL Financial claims that it validly tenninated Gavomik and Marinello "for cause" because they "obstructed LPL in obtaining indemnification payments to which LPL was contractually entitled from an entity they controlled." (Civ. No. 14-956, ECF No. 43, Defs.' Opp'n. Br. at 1). During May 2013, Defendants allege that LPL Holdings started to make written demands for indemnification on Gavornik and Marinello. (Civ. No. 14-956, ECF No. 43-1, Defs.' Resp. to Pis.' Statement of Undisputed Material Facts ("Defs.' Resp.") at, 15). Defendants claim that the indemnification demands related to money paid by LPL for legal services that ACAP was contractually obligated to pay under an indemnification provision in the SPA. (Civ. No. 14-956, ECF No. 43, Defs.' Opp'n. Br. at 1-2). The parties agree that Gavornik and Marinello, together with Argush, owned ACAP. (Civ. No. - -·· - : . - :--:· Pis.' Resp. to Defs.' Resp. - Statement of Additional Undisputed Material Facts at, 1). Defendants allege that ACAP was required to inde1ruiify_ LPL and that Gayornik anc.\Jv.tarinello obstructed LPL in obtaining the - ->_ - indemnificatio-n paym-ents (Civ. No. 14-9S6, ECF .: . .. . .. -··--.:-: - -- - ::-_ -- - -: - --·.. ::- .::· _·- -, •·. -·:·· ..:...' .:; - Marinello argue_ while ACAP may have .: - -. - 43, Defs.' Opp'n. Br. at 1). Gavornik and . indemnity obligations under the SPA, Gavomik and Marinello were not individually obligated to indemnify LPL. (Civ. No. 14-956, ECF No. 33-2, Pis.-' Mot. Defendants allege that multiple written communications were sent to Gavornik and Marinello requesting that the outstanding monies be reimbursed, yet no payment was made. (Id. at 2). Shortly thereafter, LPL Financial terminated Plaintiffs Gavomik and Marinello on - .. - : . - December 27, ·_ .-· · 4 ! II I• II. Plaintiff Argush Plaintiff Argush was terminated roughly four months earlier, and on a different basis, than Gavomik and Marinello. Argush was terminated on August 6, 2013. (Civ. No. 13-7821, ECF No. 121-1, Defs.' Resp. to Pl.'s SUMP 116). LPL Financial claims that it validly terminated Argush for cause because Argush ''willfully and repeatedly violated LPL's written directive to him to work remotely." (Civ. No. 13-7821, ECF No. 91-1, Defs.' Mot. at 1). On July 30, 2013, Argush had a meeting with Andrew Putterman, his direct supervisor ("Putterman"), Anna Orsenigo, a Vice President of Human Resources of LPL Financial ("Orsenigo") and Gavomik ("July 30th Meeting"). (Civ. No. 13-7821, ECF No. 112-1, Pl.'s Resp. to Defs.' SUMP at, 44). At that meeting, Argush alleges that Putterman orally communicated to him that he was permitted to continue to come into the office to work until LPL Financial could set up Argush with the capability to work remotely. (Civ. No. 13-7821, ECF No. 112, Pl. 's Opp'n. Br. at 2). LPLFinancial maintains that notwithstanding any alleged oral communication at the July 30th meeting, LPL-Financial sent Argush four clear written directives after the July_ 30th meeting -· . . - ·- - . ·- . . -- - . :- , .... ·- ·.. ·.-::; -. ; . _jnstructing Argush-that permission. I 1) was not to report to the office to work without first receiving advance LPt:_'.fipancial further alleges that Argush disregarded its written directives and continued to. report to the office on August 1st, 2nd, 5th, 6th, and 7th. (Civ. No. 13-7821, ECF No. 121-l, Defs.' Reply SUMP at,, 52, SS, 58, 61). LPL Financial claims that it terminated Argush's employmenton August 6th via email. (Id. at,, 62, 64; Civ. No. 13-7821, ECF No. 913, DiSomma Deel. Ex. 19). In essence, LPL Financial claims that, as a result of Argush's failing to abide by its· clear directives, it validly terminated Argush "for cause'-' pursuant to Section 6.09 of the SPA due to Argush' s ''willful misfeasance, willful misconduct, or gross negligence in 5 I, II . connection with such Person's duties or an act or omission which is injurious to the financial condition or business reputation of LPL." (Id. III. 62, 63). Procedural History Argush v. LPL Financial, et al. is the lead case, which was removed from Superior Court of New Jersey, Law Division, Monmouth County, to this Court in December 2013. (Civ. No. 13-7821, ECF No. 1). Gavornik v. LPL Financial, et. al. and Marinello v. LPL Financial, et. al. (Civ. No. 14-956) were both filed in this Court in February 2014. (Civ. No. 14-955, ECFNo. 1; Civ. No, 14-956, ECF No. 1). The three cases have been consolidated for pretrial purposes. (See Civ. No. 13-7821, ECF No. 27). On August 5, 2014, this Court granted in part Defendants' motion to dismiss in each of the three cases.1 (Civ. No. 13-7821, ECF No. 22; Civ. No. 14-955, ECF No. 20; Civ. No. 14..,956, ECF No. 20). Additionally, on August 24, 2016, this Court granted Defendants' Motion to Dismiss Count Four of Plaintiffs' Respective Complaints, which sought a declaratory judgment that Plaintiffs' restrictive covenants were null and void. (Civ. No. 13-7821, ECF No. 110). As a result, in each case, Plaintiff has two remaining claims against of Employment Agreement and Breach of Contract. Currently before the Court are five motions for summary judgment in these consolidated . . cases: (1) PlaintiffGavornik'sMotion for Partial Summary .. · 955, ECF No. 33); (2) Plaintiff Marinello's Motion for Partial Summary Judgment on Liability I rl I' (Civ. No. 14-956, ECFNo; 33); (3) Defendants' Motion for Summary Judgment on Counts Two . . and Three of PlafutiffGavomik and PlaintiffMarinello's Respective Complaints (Civ. No. 137821, ECF No. 92); (4)Defendants' Motion for Summary Judgment on Count Four of All 1 The Court dismissed each of the Plaintiffs' claims for: (1) violation of the Conscientious Employee Protection Act ("CEPA"); and (2) tortious interference. The Court also dismissed Plaintiff Argush's claims for breach of the covenant of good faith and fair dealing and conversion. 6 i · . I • Plaintiffs' Respective Complaints (Civ. No. 13-7821, ECF No. 94); 2 (5) Defendants' Motion for Summary Judgment on Counts Three and Seven of Plaintiff Argush's Complaint (Civ. No. 137821, ECF No. 91). The third Plaintiff in these consolidated cases, Argush, did not move for summary judgment. LEGAL STANDARD Summary judgment is appropriate if the record shows "that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). In deciding a motion for summary judgment, a district court considers the facts drawn from "the pleadings, the discovery and disclosure materials, and any affidavits" and must ''view the inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion." Fed. R. Civ. P. 56(c); Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002) (internal quotations omitted). In resolving a motion for summary judgment, the Court must determine ''whether the evidence presents a sufficient disagreement to require submission to ajury or whetheHt is'--scf one-sided that one party_must prevail as-a matter of-law." Andersonv. LibertyLobby, 477 U.S; 242, 25152 ( 1986). More precisely, summary judgment be: granted_ if the evidence available would not support a jury verdict infavorofthe nonmoving. party:> Id.: at 248-49. The Court must- · grant summary judgment against any party ''who fails to make· a showing sufficient to establish the existence of an element essential to that .party's case, and_ on which that party will bear the burden of proof at trial." Celotex, 477 U.S.-at322;,.>-' .··.:_· ·. ...- .. ( 2 As a result of this Court's dismissal of Count Four of Plaintiffs'- respective complaints (See Civ. No. 13-7821, ECF No. 110), this motion is now moot. 7 .. ANALYSIS I. Plaintiff Gavornik and Plaintiff Marinello's Summary Judgment Motions Initially, the Court notes that Gavomik and Marinello submitted virtually identical motions for summary judgment on liability. Therefore, the Court will address both Plaintiffs' motions in this section. Gavornik and Marinello each have two remaining claims in this case: Breach of Employment Agreement and Breach of Contract. (See Civ. No. 14-955, ECF Nos. 2021; Civ. No. 14-956, ECF Nos. 20-21). Both Plaintiffs move for partial summary judgment on liability on these claims. There are two main issues that the Court must address: (1) what law applies to this dispute and (2) whether LPL Financial' s termination of the Plaintiffs constitutes a Breach of Contract or Breach of Employment Agreement. a. Choice of Law Analysis The first issue that the Court must address is what law applies to the present dispute. Defendants argue that Delaware law should apply, while Gavomik and Marinello appear to argue that New Jersey law applies->(c1v. Civ. NoA3-7821, ECF Defs.'-Opp'n. Br. at 16 n. 9 citing 92-1, Defs/ Opp'n. at-l 7'-:-18; Civ. No.J4-955, No. 33-1). _ A federal court sitting-iD. divetsity applies the forum: state's .choice of law rules to determine what substantive-law alsoLebegern v. :SeeKlaxon Co.· v.: Sten.torBlec':' (3d l3 U.S. 487, 496-98-(1941); see (noting "[a]s this was a diversity case filed in New Jersey, New-Jersey choice oflaw rules govern"); New Jersey choice oflaw principles require aCourttofirst determine ifthere is an·actual conflict between two potentially applicable laws. Ifthere is no conflict, then because a New Jersey court would apply its ownlaw in such a case, a federal court sitting in diversity must also apply New Jersey law. Lebegern, 471 F .3d at. 428 .. Defendants argue that Delaware law should apply, Defendants concede that there is no relevant conflict between Delaware law and New Jersey law. (Civ. No. 14-956, 8 I ! . 'l ECF No. 43, Defs.' Opp'n. Br. at 16 n. 9). Therefore, the choice oflaw inquiry ends there, and New Jersey law applies to the dispute. b. Counts Two and Three: Breach of Employment Agreement and Breach of Contract In order to state a claim for breach of contract in New Jersey, a plaintiff must allege "(1) a contract between the parties; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that the party stating the claim performed its own contractual obligations." Frederico v. Home Depot, Inc., 507 F.3d 188, 204 (3d Cir. 2007). The main issue that the Court must address with respect to the alleged breach of contract here is whether LPL Financial validly terminated each Plaintiff"for cause." Under New Jersey law, a termination is considered "for cause" if the termination is "based on facts that are (1) supported by substantial evidence and (2) are reasonably believed by the employer to be true and also (3) is not for an arbitrary, capricious, or illegal reason.''- Spano v. JP Morgan Chase Bank, 2011WL6934837, at *6 (D.N.J. Dec. 30, · . i. I,. Serv., 749 F. Supp. 1344, 1363 (D.N.J. 1990). I . Here, the_ pa.rties agree that the definition of termination for "cause" was contained in the . >. In - . - 6.09 of the SPA - - as "willful misfeasance, willful misconduct, or gross:negligencejn connectionwith.sucltPers011's duties or an act or omission. ·. . . - - . .. - - . . - · -, >which is injurious to the financial condition of LPL." (Civ. No. 14-955, ···- No. 33-3; -LeyyDecL Ex;.A). ·Defendants allegethatGavomik and Marinello were -- ---·_.., · terniinated as·· a 'result of:theii'performing an"actor QniissiolJ condition or busi.ness reputation of LPL." (Civ. No.--14-956,:ECF .: iJ 41 ). . is injurious to the financial 43-1, Defendants' Resp. at - . Specifically; Defendants claim that Gavomik and Marinello were terminated "for cause" for failing to abide by indemnification obligations in. the SPA which required Plaintiffs to 9 I' ' . . ' indemnify LPL for certain legal fees paid by LPL. (Civ. No. 14-956, ECF No. 43, Defs.' Opp'n Br. at 1-2). The relevant indemnification provision in the SPA3 specifically refers to the indemnification obligations of the "Sellers" for the purposes of that agreement. Under the SPA, the "Sellers" were ACAP and Financial Services. (Civ. No. 14-956, ECF No. 43-1, "Defs.' Resp." 17). Gavomik and Marinello were two of the three owners and members of ACAP. (Id. 1). Gavomik and Marinello argue that they had no obligation to personally indemnify LPL and that their "reasonable refusal to pay an obligation not owed cannot be an 'act or omission which is injurious to the financial condition or business reputation of LPL."' (Civ. No. 14-955, ECF No. 48, Pl.'s Reply Br. at 8). Gavomik and Marinello also argue that LPL's financial condition was not injured by any act or omission of Gavornik and Marinello because $500,000 of the purchase price paid by LPL to acquire Concord was set aside in an escrow account to secure - -3 - I,, In relevant -part, the provisfort readS: - :· .. ···. . .··- Section 10.01. Indemnificati9Ii by Sellers. __ _ , , ______ (a) Indemnification. SubJect to the limitations and other provisions set forth in this ARTICLE X, from and after the severally indegmify and J1old harmless Buyer [LPL] and its Affiliates Clqsing, each S_eller shall each Acquired Conipany), and the Rq)resentatives, Affiliates, successors and (inCludilig, foiloWing-thtf assigns of each of the foregoing Persons (each, a "Buyer Indemnified Person"), from, against and in respect of any and all Actions; Governmental Orders, Encumbrances, losses, damages, bonds, dues, assessments, fmes, costs of investigation, defense and enforcement of this Agreement), expenses _penalties, Taxes, fees, -_or amounts paid in case, including reasonable,attomeys' and experts' fees and expenses), whether or not involving a Third P;nty Claim (collectively, "Losses"), incurred or suffered by Buyer Indemnified or any as a result_c)f;:arjsing_out of or relating to, or indirectly: .. . (v) the facts related to the SEC ReView; - . - . ' . . - - or . . ori Schedule 10.0l(a)(vi) (which Third Party Claim will be subject to the (vi) the Third Party of SecJi9n _ lQ.04); prnvid¢d, J:ic>wever, Buyer agrees to reimburse Sellers for 50% of any Losses arishig outo{the Tlilicf Party Claim identified on Schedule 10.0I(a)(vi) up to a maximum reimbursement of one hundred thousand dollars_($100,000), such amount to be payable upon fmal resolution or settlement of the Third Party Claim; ,_ -- - (Civ.- No. 14-955, ECF No. 48-1, Pis.' Resp. to Deis;' Resp. Statement of Additional Undisputed Material Facts 16). 10 the debt supposedly in issue. (Id. at 2-3). As a result, Gavornik and Marinello claim that they did not commit an act or omission injurious to the financial condition or business reputation of LPL, and therefore, LPL Financial lacked cause to terminate their employment. Defendants argue that ACAP could only act through the Plaintiffs, and as a result, Gavomik and Marinello had an obligation to indemnify or cause ACAP to indemnify LPL. (Civ. No. 14-956, ECF No. 43, Defs.' Opp'n. Br. at 2). Defendants claim that this failure to cause LPL Holdings to be indemnified was a valid ground for terminating Plaintiffs for cause. The Court is persuaded that there is a genuine factual dispute as to whether Gavomik and Marinello had an obligation to indemnify LPL, or cause LPL to be indemnified, under the SPA. The Court is similarly persuaded that a genuine factual dispute exists as to whether Gavornik and Marinello had the ability to cause ACAP to fulfill its indemnification obligation under the SPA, or whether unanimous consent of all three members of ACAP would be required. Therefore, material questions of fact still remain as to whether Gavomik and Marinello committed acts or omissions which were injurious to the financial condition or business reputation of LPL and whether Gavomik and Marinello were validly terminated for cause. Gavomik and Marinello · · ' not sufficiently demonstrated that LPL Financial is liable for breach of contract and ·.. ·: .. -_. ,':-_Gavoniik and for partial sununary judgment on liability must be denied. ···- II. Defendants' Summary Judgment Motions on Counts Two and Three of Plaintiff Gavornik and Respective Complaints Defendants -move for summary judgment on Counts Two and Three of Gavornik and Marinello' s respective complaints, the same counts just discussed in the previous section .· ·' . Ii . davornikand . Marinellci's sumrriary judgment motions. (Civ. No. 13-7821, ECF No. 92). On Defendants' Motion for Summary Judgment, the parties make very similar arguments to those which were made ori Gavornik and Marinello' s motions for partial summary judgment on 11 ! . ·• liability. The Court is persuaded that the same factual issues that precluded Gavomik and Marinello from prevailing on their motions also preclude Defendants from prevailing on their motion for summary judgment. Therefore, for the reasons discussed in the preceding section, Defendants' motions for summary judgment on counts two and three of Gavomik and Marinello' s respective complaints are denied. III. Defendants' Summary Judgment Motion on Counts Three and Seven of Plaintiff Argush's Complaint a. Choice of Law Analysis As noted the Background section of this Opinion, the facts relating to Plaintiff Argush's claims are distinct. To reiterate, the Court must first address what law applies here. Argush argues that New Jersey law should apply, while Defendants argue that Delaware law should apply. (ECF No. 91-1, Pl.'s Br. at 11-12; ECF No. 112, Defs.' Opp. Br, at 24-28). As discussed supra in Section I(a) of the Analysis Section of this Opinion, if there is no conflict between two potentially applicable laws, and a New Jersey court _would apply its own law, a federal court sitting in diversity must also apply New Jersey law. Lebegern, 471 F.3d at 428. Here, the - ... : - . agree that there is no relevant conflict between De_laware law and New J · No. 91-1, Pl. 's Br. at 11 n.5; ECF No. 112, . law. -_ (ECP.. .· the choictto_flaw:::,, inquiry ends there, and New Jersey law applies to the dispute... :. -- b. Counts Three and Seven: Breach of Contract and Breach of Employment .Agreement Argush's Corrected Amended Complaint contains two separate breach of contractclaims. · Defendants arguethat no breach.occurred because Argush was terminated for cause, and thus, Argush cannot prevail on his breach of contract claims. Argush argues that genuine issues of · material fact remain as to whether or not Argush was validly terminated for cause, and 12 I Defendants' summary judgment motion must be denied. In order to state a claim for breach of contract in New Jersey, a plaintiff must allege "(l) a contract between the parties; (2) a breach of that contract; (3) damages flowing therefrom; and (4) that the party stating the claim performed its own contractual obligations." Frederico v. Home Depot, Inc., 507 F .3d 188, 204 (3d Cir. 2007). When the alleged contractual breach consists of termination without cause, a Court must determine whether just cause existed at the time of termination. In New Jersey, "[a] discharge for just cause is defined as one that is 'based on facts that are (1) supported by substantial evidence and (2) are reasonably believed by the employer to be true and also (3) is not for any arbitrary, capricious, or illegal reason." Spano v. JP Morgan Chase Bank, N.A., 2011 WL 6934837 at *6 (D.N.J. Dec. 30, 2011) (quoting Maietta v. United Parcel Serv., Inc., 749 F. Supp. 1344, 1363 (D.N.J. 1990)). Here, the parties agree that the definition of termination for "cause" was contained in the SP In relevant part,- Section 6.09 of the SPA defines "cause" as ''willful misfeasance, willful -misconduct, or gross negligence in connection with such Person's duties." (Civ. No. 13-7821, ECF No. 112-1, Letter signed . . - . - ·:.:·,,,; . Additionally, it is undisputed that the Offer . aproyision that . . ·. . . :· .. .- . . employment as "at-will"'_- . and permitted LPL Financial to modify Argush's work responsibilities. 4 (Id. at 4ff 19). It is also -undisputed that onJuly-30, 2013-;Argush meeting with Andrew Puttetman, his direct 4 The relevant text of this provision reads: "Ifyou accept QUI' offer, your.employment with LPL Financial will be "at-will." This means your employment is not for any specific period of time -and can be terminated by you at any time for any reason. Likewise, LPL Financial 1Day tenajnat_e._ the relationship at any time, with or without "Cause" or advance notice. !ti addiifori, .LPL Firilin.cfaffoser\res the nght to modify your position, duties or reporting relationship to meet business needs and to use discretion in deciding on appropriate discipline. ·No such modification or exercise- of discretion shall be-treated as termination-Without "Cause." Any change to the at-Will employment relationship must be by a specific, written agreement signed by you and the LPL Financial President Any obligation to pay severance, if any, on account of a termination by .the Company without "Cause" hereunder -19). shall not change the nature of your employment as "at-will." (Id. 13 I .. .... .. supervisor ("Puttennan"}, Anna Orsenigo, a Vice President of Human Resources of LPL Financial ("Orsenigo"}, and Plaintiff Gavornik ("July 30th Meeting"). (Civ. No. 13-7821, ECF No. 112-1, Pl.'s Resp. to Defs.' SUMF 44). Defendants argue that Argush was validly terminated with cause as a result of his engaging in willful malfeasance and misconduct. Specifically, Defendants argue that Argush violated four separate written directives 5 instructing Argush to work remotely and also that he should not report to the office to work without first receiving advance permission, including one directive sent on August 5th by his direct supervisor, Puttennan. (Civ. No. 13-7821, Defs.' Br., ECF No. 91-1 at 16). Defendants claim that these written directives were an exercise of the right afforded to LPL Financial in the Employment Agreement to modify Argush's work responsibilities. (Id. 13). Essentially, Defendants argue that Argush was validly terminated for cause on August 6th for engaging in willful malfeasance and misconduct by violating these directives and reporting to the office on August 1st, 2nd, 5th and 6th. - Argush argues that, at the July 30th meeting; he received oral permission to continue to ·• report to the office from his direct supervisor, Putterman, and that the aforementioned written . . directives·- ·-· - .tJiis ,.-··-, _:·-:;--·, Argush claims that· continue to teporfto the office until LPL granted him ::;-.·;';". :,_-_,·.. set up capabilities forA.rgush to work remotely. (Civ. No. 13-7821, PL Opp'n. Br., ECF No. 112 at 2). Argtishsupports this claim with his own-deposition testimony (Civ. No.13-7821, ECF No. 91-3, DiSomma EX. 6 (Argush Dep. Tr.) at 277: 17-277 :21)) and with deposition testimony of PlaintiffGavomik (Civ. No.13-782_1, ECFNo. 91-3, DiSomma Deel. Ex. 8 (Gavomik Dep. Tr. . . . - . . '• Tlle Written directives c'otisisted offcfor;"documents: (l} a· JulyJOthMeriiorandmn from Oi'senigo; (2) aJuly 3 lst email from Orsenigo; (3) an August 2nd email from another Vice President ofHwnan Resources of LPL Financial, Ron McGuire ("McGuire''); and 4) an August 5th email from Putterman. (Civ. No. 13-7821, Defs.' Mot., ECF No. 91-1at12-16). · 5 14 Ii at 209:12-209:21)). Considering these two distinct narratives, the Court is persuaded that there exist genuine issues of material fact as to whether Argush had permission to report to the office on August 1st, 2nd, and 5th and whether his reporting to the office on those days constituted willful misconduct or malfeasance sufficient to terminate him for cause. Argush also argues that he did not receive the August 5th email from Putterman until after he arrived at the office on the morning of August 6th. (Civ. No. 13-7821, Pl. Opp'n. Br., ECF No. 112 at 2). Whether or not Argush received and was aware of the only written directive issued by his direct supervisor instructing him not to report to the office similarly is a factual dispute that is not appropriate for resolution on this record. Viewing the evidence in the light most favorable to the non-moving party, the Court is persuaded that genuine issues of material fact remain as to whether Argush' s conduct constituted willful misconduct or malfeasance and whether Argush was validly terminated for cause. These types of factual disputes can be only be resolved at trial. As a result, Defendants' Motion for . ·_ Summary Judgment on : ; ,_.::. - - .· - - Argush' s Complaint will be denied. CONCLUSION · Eor the foregoing reasons, Plaintiff Gavomik and Marinello' s motions for summary .· judgment will. be denied and motions for summary judgment will be denied. An appropriate order will · ; ANNE E. I ,0116 15 I I I