Attorney Deficiency Letter Did Not Constitute an “Adverse Employment” Action

In Hafizov v. BDO USA, LLP, 22-CV-8853 (JPC) (RWL), 2023 WL 4697312 (S.D.N.Y. July 24, 2023), the court denied plaintiff’s motion to amend their complaint to add a retaliation claim.

In a somewhat unique fact pattern, plaintiff alleges retaliation in the form of a deficiency letter sent by defendants’ counsel:

Plaintiff’s proposed additional amendment seeks to add a second post-termination event of alleged retaliation similar to the first one in that Plaintiff alleges that BDO, through counsel, made another post-termination threat of legal liability against Plaintiff. More particularly, the additional facts relate to a letter from defense counsel sent on February 22, 2023, approximately four months after the litigation began, to Plaintiff’s counsel setting forth in detail many purported deficiencies in Plaintiff’s discovery responses (the “Deficiency Letter”). (Dkt. 41-7.) The length of the Deficiency Letter, more than 11 pages, generally appears to be a typical deficiency letter an attorney would send in an intensely litigated case such as this one.

At the end of the Deficiency Letter, following a request for Plaintiff to correct the purported deficiencies, defense counsel included a paragraph concerning a recorded telephone call that Plaintiff had produced during discovery. That paragraph, which is the basis for Plaintiff’s proposed amendment, reads in relevant part as follows:

Finally, we wanted to make you aware of the fact that pursuant to Plaintiff’s initial production of documents, it has come to Defendants’ attention that Plaintiff appears to have recorded a telephone conversation between Plaintiff, Matthew Dyment [one of the Defendants], and Shannon Ford [a non-party] on May 18, 2022. As Plaintiff is aware, Mr. Dyment is a Massachusetts resident, worked (and continues to work) out of BDO’s Boston office at the time of Plaintiff’s termination, and was in his home in Massachusetts at the time of the recorded call. Massachusetts’ Wiretapping Law makes it a crime to record a wire conversation without the prior consent of all parties to the communication. See Mass. Gen. Laws Ann. ch. 272, § 99(C). Therefore, in addition to breaching his Code of Conduct with BDO, which forbids recording telephone conversations with BDO employees, Plaintiff may have violated Massachusetts’ Wiretapping Law and Mr. Dyment may be entitled to a civil remedy under the law.

The court ultimately held that this was not an “adverse action” sufficient to sustain an actionable retaliation claim:

The Court credits Plaintiff’s counsel with creative and zealous representation of their client. They have taken a routine discovery letter with observations about evidence that the Plaintiff produced and contorted it into an adverse employment action. The last paragraph of the Deficiency Letter merely points out that certain evidence produced by Plaintiff was, allegedly, obtained in violation of the law. To be sure, in the email exchange that followed Plaintiff’s proposed amendment defense counsel made a declarative statement that “Defendants are permitted to defend themselves in this litigation with appropriate counterclaims and affirmative defenses.”

It determined that “neither that statement nor the Deficiency Letter itself can reasonably be considered a threat that would dissuade a reasonable worker from continuing to pursue litigation that he already had filed.”

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