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Robinson v. Morgan Stanley

June 18, 2008

BEVERLY E. ROBINSON, PLAINTIFF,
v.
MORGAN STANLEY, DISCOVER FINANCIAL SERVICES LLC, KPMG, ROCCO DEGRASSE, TONY DELUCA, KAREN DOLLMEYER, CAROLE HOFFMAN, BERNICE JEE, KELLY MCNAMARA-CORLEY, DAVID OPPENHEIM, KERRY PIERCY, DAVID SUTTER, VESELA ZLATEVA DEFENDANTS.



The opinion of the court was delivered by: James F. Holderman Chief Judge, United States District Court

MEMORANDUM OPINION AND ORDER

JAMES F. HOLDERMAN, Chief Judge

Pro se plaintiff Beverly Robinson ("Robinson") brings this lawsuit against Morgan Stanley, Discover Financial Services, LLC, Tony DeLuca, Karen Dollmeyer, Carole Hoffman, Bernice Jee, Kelly McNamara-Corley, David Oppenheim, Kerry Piercy, David Sutter, and Vesela Zlateva ("the Morgan Stanley Defendants"), KPMG LLP ("KPMG") and Rocco J. deGrasse ("deGrasse"). The Morgan Stanley Defendants are Robinson's former employer and the various supervisors, managers, and representatives who interacted with Robinson in regards to specific events that occurred during her employment. KPMG and deGrasse are external auditors who participated in the investigation of concerns raised by Robinson to her employer in 2004, before her termination.

On September 24, 2007, this court ruled on two motions to dismiss claims set forth by Robinson in her original Complaint. Among other holdings, the court dismissedRobinson's defamation and fraud claims in their entirety without prejudice to refiling in accordance with the court's order. The court also denied the Morgan Stanley Defendant's motion to dismiss Robinson's breach of contract claim, finding that, although certain disclaimer language in the Employee Handbook made clear that oral assurances of continued employment would not create an enforceable contractual right, written assurances of continued employment made by an authorized officer of the company could still create such a right. Robinson has since filed an eight-count First Amended Complaint that is the subject of two motions now pending before the court: The Morgan Stanley Defendants' Motion to Dismiss Counts III, V, and VIII of Plaintiff's First Amended Complaint, (Dkt. No. 57), and KPMG and deGrasse's Motion to Dismiss, (Dkt. No. 60). The court has original subject-matter jurisdiction over Robinson's FMLA claim pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over Robinson's state law claims pursuant to 28 U.S.C. § 1367.

For the reasons stated below, both the Morgan Stanley Defendants' Motion to Dismiss and KPMG and deGrasse's Motion to Dismiss are granted in their entirety.

BACKGROUND

For purposes of addressing the pending 12(b)(6) motions, the court accepts as true the following facts, as set forth in the First Amended Complaint:

Plaintiff Beverly Robinson ("Robinson") worked in the Internal Audit Department of Morgan Stanley from October 2, 2000 until her termination on August 24, 2004. Throughout her employment, Robinson was located in the Discover Financial Services ("DFS") headquarters building in Riverwoods, Illinois. Robinson began her career at Morgan Stanley/DFS as a Senior Auditor, and was promoted to Electronic Data Processing (EDP) Audit Supervisor in August, 2001. In January 2002, after returning from almost two months of approved medical leave for major surgery, Robinson was demoted back to the position of Senior Auditor.

In October 2003, Robinson informed David Sutter ("Sutter"), Vice President of the Internal Audit Department, that she wanted to raise some concerns to the Company Audit Director, who was Sutter's boss. Shortly thereafter, Sutter put Robinson on a 60-day corrective action plan, citing Robinson's desire to go over his head as one of the criticisms. In December 2003, after a restructuring of Robinson's audit group, Sutter gave Robinson a "needs improvement" year-end review. The October 2003 corrective action plan was also extended for another 60 days.

On February 5, 2004, Robinson delivered a memorandum of approximately twenty-four pages (plus attachments) to the Chief Financial Officer of DFS,*fn1 detailing legal, regulatory, tax, accounting, auditing, and personnel concerns that Robinson had uncovered as an auditor and as a non-auditor. The following day, the CFO and Kelly McNamara-Corley ("McNamara-Corley"), head of the Law Department in Riverwoods, Illinois, informed Robinson that they were launching an investigation into the concerns Robinson had raised in her memo. At the request of the CFO and McNamara-Corley, Robinson began participating in the investigation by supplying additional information, including documents and names, relevant to the issues raised in Robinson's memo. The investigative team that was assembled to look into Robinson's concerns included David Oppenheim ("Oppenheim") from the Law Department in Riverwoods, Illinois, Bernice Jee ("Jee") from the Human Resources Department or "CARE" area (located "somewhere other than Riverwoods, Illinois") (1st Am. Compl. ¶ 10), Carole Hoffman ("Hoffman") from the Morgan Stanley Law Department in New York, an unnamed Audit Director from New York,*fn2 and Rocco deGrasse ("deGrasse") from KPMG, along with other KPMG personnel. The investigation was divided into two parts: investigation of the legal, regulatory, accounting, and auditing issues, which was to be conducted by "KPMG and other people," and investigation of the personnel issues, which was to be conducted by Jee and Hoffman. (Id. ¶ 43.)

While the investigation was ongoing, Robinson began to be subjected to retaliation by members of the Internal Audit Department. Robinson reported this retaliation to the investigative team, who assured her that no retaliation would be tolerated. However, Robinson continued to be subjected to retaliation, as did the one or two people in the Internal Audit Department who still associated with Robinson at that time. Robinson reported the retaliation to Jee, Hoffman, and Kerry Piercy ("Piercy"), Vice President of Human Resources.

In late March 2004, "after less than one day of meeting with Ms. Jee and Ms. Hoffman to discuss the personnel issues," Jee and Hoffman tried to convince Robinson that she should leave the company and they offered to "package her out." (Id. ¶¶ 44, 212). Robinson reported this conversation to the CFO and McNamara-Corley, and McNamara-Corley "assured the Plaintiff she had a job in Audit." (Id. ¶ 45).

On May 7, 2004, Robinson was given the results of the investigation in a meeting attended by herself, Oppenheim, Jee, Hoffman, and deGrasse. Robinson was told that the investigative team "did not determine any concerns in the audit area," and that they had also determined that there had been no FMLA violations or retaliation against Robinson, although the investigative team acknowledged that some of the personnel issues raised in her memo could have been handled better. (Id. ¶ 48). On May 17, 2004, Piercy and another member of Human Resources met with Robinson and "informed her there had been no retaliation" against Robinson or others. (Id. ¶ 50). No action was ever taken in response to the retaliatory conduct that Robinson continued both to experience and to report.

Shortly after the meeting with Piercy, Robinson's manager Vesela Zlateva ("Zlateva") put Robinson on a corrective action plan which was "almost identical to the action plan Mr. Sutter had issued in October 2003 and cited the same incidents." (Id. ¶ 51.) Piercy and Zlateva met with Robinson weekly to give Robinson updates of her performance. At these meetings, Zlateva "would read a list of complaints" about Robinson. (Id. ¶ 54). Upon trying to discuss, correct, or question any of the items on Zlateva's list, Robinson was accused of arguing and not accepting feedback. In mid-June 2004, the company provided Robinson with an outside coach. Nevertheless, on August 6, 2004, Robinson was given a ...


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