Summary
applying broader standards to hostile work environment claims under NYCHRL but using Title VII standards for discrimination claims
Summary of this case from Gutierrez v. City of New YorkOpinion
103938/05.
Decided September 23, 2008.
Plaintiff's Attorney is G. Oliver Koppell Associates.
Defendants Attorney is Jackson Lewis LLP.
This action arises from allegations of discrimination, sexual harassment and retaliation during plaintiff Wenping Tu's employment at defendant Loan Pricing Corporation (LPC). In March 2005, plaintiff commenced this action under the New York City and State Human Rights Laws claiming defendants: discriminated against her based upon her national origin, gender, pregnancy, disability and compensation; subjected her to a hostile work environment; and terminated her in retaliation for a complaint of discrimination she filed in April of 2004. She also claims that LPC and defendant Reuters America LLC (Reuters) negligently supervised defendant Harsh Sabnani, LPC's Software Group Manager. Defendants now move for summary judgement pursuant to CPLR § 3212 to dismiss the complaint in its entirety. Plaintiff opposes.
In their papers, each side raises the issue of the defects that exist in the others motion papers. Plaintiff claims that the court should deny defendants motion on its face since they failed to submit copies of all the pleadings in their original submission in violation of CPLR § 3212(b). Plaintiff's Memorandum at p. 11. Defendants claim that the plaintiff violated this court's rules by going over the allocated page limit in its memorandum of law in opposition to the motion. Defendants Reply Memorandum at p. 29. The court is mindful of these procedural defects but will use its inherent power to disregard them in the interests of justice and decide the motion on its merits. See CLPR 104.
I.Statement of Facts
Ms. Tu is a Chinese immigrant. In 1990, she graduated from The Guangzhou Institute of Foreign Trade in Canton, China with a Bachelor of Arts in Economics. In 1997, she received a Masters in Business Administration from the Atkinson School of Management at Willamette University. Ms. Tu also received a Master of Science degree from Baruch College in 2000.
In April 2000, Ms. Tu was hired as a Software Intern in LPC's Technology Group at a salary of $20 per hour. Plaintiff's Exhibit L. In May of 2000, LPC hired her full time at a salary of $50,000 per year, as Software Engineer in its Software Development Group. Id. During the tenure of Ms. Tu's employment, LPC was a non-integrated subsidiary of Reuters. Michael Schmidt EBT at p. 18; Michael Sepsi EBT at p. 75. As a non-integrated subsidiary, LPC developed its own business strategy, had its own management group and made decisions independent of Reuters regarding personnel, operations, budget and financials. Sepsi EBT at p. 75-76; Mark North EBT at p. 45-46. Michael Sepsi was LPC's Chief Operations and Financial Officer, primarily responsible for administrative and human resource issues. Sepsi EBT at p. 33, 47. Mark North was LPC's Chief Information Officer. Mark North EBT at p. 11. Defendant Haresh Sabnani was plaintiff's immediate supervisor and reported directly to Mr. North. Id. at 11, 42-43.
Plaintiff avers that when she first started at LPC as an intern, she was "very happy." Plaintiff's EBT p. 306. Indeed, her first performance review dated July 2, 2001 (2001 Performance Review) was extremely positive noting that she had a strong work ethic, was "dedicated to learning and growing . . . [c]ommunciates well with management, team members, and others outside the group . . . [is a] strong team player . . . always making suggestions on how to do things and looks to other team members for support and guidance . . ., very outgoing, [and] . . . always willing to take on more responsibility." Plaintiff's Exhibit L.
In January of 2002, Ms. Tu was appointed Team Leader for LPC's Web Dealscan project (Project). Plaintiff's EBT at p. 92. As Team Leader, Ms. Tu was responsible for communicating and coordinating all of the different groups and activities associated with the Project. North EBT at p. 300-302. Mr. Sabnani avers plaintiff was "overwhelmed" by the responsibilities associated with being a Team Leader. Sabnani EBT at p. 148. He testifies that Ms. Tu needed his assistance coding web pages and understanding the business requirements, project management and timeliness associated with the Project. Id. In addition, Mr. Sabnani avers plaintiff had trouble understanding logistical and physical designs, structured query language (SQL) and database relationships. Id. at 151-152, 154. According to Mr. Sabnani, all of these difficulties led members of LPC's Business Team who worked with Ms. Tu on the Web Dealscan project to complain about the difficulty they had understanding and working with her. Id. at 156-158. In Ms. Tu's June 21, 2002 performance review (2002 Performance Review), Mr. Sabnani stated, inter alia:
[Ms. Tu] has been one of the mainstays of the Web Dealscan product on the technology side . . . [Ms. Tu] is dependable and reliable as far as maintenance for these products is concerned . . . More recently, [Ms. Tu] took on the role of Team Lead for the Web Dealscan project. In this role, she is managing the process of enacting the next set of major Web Dealscan enhancements as well as overseeing Web Dealscan and MainAdmin releases and the restart of our hosting center process during fatal incidents.
[Ms. Tu] communicates issues with the business side and the software group regarding production maintenance processes promptly . . .
[Ms. Tu] needs to hone her leadership skills significantly. Ping mentioned some time after she acquired the Team Leadership position that she was not ready for it, and that she was overwhelmed by it. [Her] assessment was accurate . . . [Ms. Tu] needs to hone her skills in project time estimation . . . [Ms. Tu] needs to further hone her logical and physical design and architecture skills . . . [Ms. Tu] needs to further enhance her knowledge of database access strategies and tactics, including in-depth knowledge of SQL . . . [Ms. Tu] needs to enhance her project management-related communication with her team members and her counterparts on the business side.
Defendants Exhibit H.
Ms. Tu was also pregnant in 2002 and gave birth on or about August 8, 2002. She then went on maternity leave through November 2002. When she returned to LPC, Mr. North became her direct supervisor through the summer of 2003. North EBT at p. 103; Sabnani EBT at p. 188. According to Messrs. North and Sabnani, the shift in plaintiff's direct supervision occurred at Mr. Sabnani's request because he was spending too much time working with Ms. Tu, who "was not as productive as she should have been." Id. During the period of Mr. North's supervision, he avers that numerous issues arose regarding plaintiff's performance. See North EBT at p. 145. A letter from Mr. Sabnani to Mr. North dated January 30, 2003, states, inter alia, that plaintiff's performance on the Web Dealscan project was "dismal . . . [and] . . . incompetent" and that "her credibility with the business side [became] very low." Defendants Exhibit H. Emails from Sabnani to North dated February 3, February 6 and March 12, 2003 state that Ms. Tu continued to have problems communicating with her co-workers and understanding the specific processes associated with the Web Dealscan project. Id In his performance review dated June 21, 2003 (2003 Performance Review), Mr. Sabnani stated that despite plaintiff's efforts: "her communication with the business team leaves much to be desired . . . Ping was often off-target when she responded to questions — it was very clear that either she did not listen, or did not take the initiative to truly understand the project. Ping's performance in this area still leaves much to be desired." Id. The 2003 Performance Review also stated that Ms. Tu had problems communicating with the Software Team and Software Manager and needed to further cultivate her technical skills. Id.
Ms. Tu resigned from her position as Team Leader in October 2003. She testified that she resigned due to the "enormous stress" she was suffering from working with Mr. Sabnani. Plaintiff's EBT pp. 836-843. Ms. Tu stated that she had been "overwhelmed" from being a Team Leader dating back to June 2002 and the pressure of working with Mr. Sabnani on a daily basis simply became too much for her to handle. According to Ms. Tu, Mr. Sabnani refused to accommodate her during the course of her pregnancy. She claims he, inter alia, increased her workload and required her to remain seated for long periods despite the physical challenges this presented. Ms. Tu also claims that Mr. Sabnani frequently made derogatory remarks concerning her physical appearance. Specifically, she claims he made fun of her "swollen face" and "prenatal mark." Ms. Tu further claims that she reported this conduct to Mr. North and that he took no action.
On or about February 22, 2004, Ms. Tu was admitted overnight to Coney Island Hospital. Her physician, Dr. Ming Zhu, diagnosed that she was fatigued and suffering from depression. Dr. Zhu avers that Ms. Tu was experiencing fatigue, insomnia and depression. In addition, Ms. Tu suffered a miscarriage in 2004, and Dr. Zhu states that it is his belief "to a reasonable degree of medical certainty, that Ms. Tu's depression and miscarriage were substantially caused by and or related to her difficulties at work." Affidavit of Dr. Ming Zhu. Dr. Zhu further avers that he wrote several notes on plaintiff's behalf recommending that she be given "light work" and accommodations due to her depression. Id.
In March 2004, Ms. Tu was placed on probation by LPC due to alleged deficiencies in her performance. Sepsi EBT at p. 274; Defendants Exhibit H. In a March 8, 2004 letter to the plaintiff, Mr. North stated that plaintiff's probation would extend to April 23, 2004. Defendants Exhibit H. This letter outlined the various reasons why Ms. Tu's performance was deficient, provided recommended solutions to her problems, listed the criteria she needed to meet in order to improve and stated that the "[f]ailure to meet the criteria may result in termination." Id. During plaintiff's probationary period, LPC employee Michael Shekhtman helped her work through the various issues she was having. North EBT at p. 175. In addition, Sepsi avers that LPC extended numerous accommodations to the plaintiff while she was on probation. Sepsi EBT p. 195-196. Emails exchanged between Mr. Sepsi and the plaintiff in July and August of 2004 confirm that LPC extended her probation for 90 days in order to accommodate her health problems. Id. Ms. Tu testified that LPC indeed extended her probation based upon her doctor's recommendations and that LPC was "reasonable" in accommodating her needs. Plaintiff's EBT pp. 885-886.
In April 2004, Ms. Tu filed a formal discrimination complaint with Reuters against Mr. Sabnani (Reuters Complaint). The Reuters Complaint, along with Ms. Tu's deposition and her complaint in this action categorically and specifically detail numerous instances of alleged discrimination and harassment she suffered during her employment at LPC. Ms. Tu claims that Mr. Sabnani, inter alia: constantly made fun of her Chinese accent saying that he could not understand her; mocked her pronunciation and asked her to spell certain word such as "birthday", "synergies" and "principle"; following several phone calls with her husband and a trip to a Chinese restaurant stated "Who did you talk to? Your husband? You were fighting? Your Chinese sounds like fighting"; mocked Chinese culture by saying "Chinese foods are greasy and cheap . . . Chinese products are cheap and low quality"; forced her to shake hands with a co-worker while she was pregnant which is considered bad luck in China; often referred to his seminal fluid as his "milk shake" and stated on several instances that "women love his milkshake"; made references to his "mojo"; made several references to the size of fellow LPC employee Terry Hall's genitals saying that they hang "2 inches from the floor"; told her that he has problems working with women and often referred to her as "this woman"; referred to her as a Caucasian saying "Ping, I call you Natalia, it's a compliment"; stated that women should stay home with their children and not return to work after childbirth; and refused to accommodate her during her pregnancy by increasing her workload and forcing her to remain seated during meetings for prolonged periods of time without allowing her to take a break. In addition, Ms. Tu alleged that Mr. Sabnani did not accommodate her depression by increasing her workload and ignoring Dr. Zhu's diagnosis.
Prior to the Reuters Complaint, two other LPC employees filed discrimination complaints to LPC and Reuters against Mr. Sabnani. In a letter dated January 25, 2002, Terry Hall claimed that he had been discriminated against based upon race, suffered disparate treatment based on race and was subject to a hostile work environment. In his letter, Mr. Hall specifically stated that Messrs. North and Sabnani subjected him to a "barrage of [discriminatory] remarks." In addition, in two separate letters to Mr. Sepsi dated April 22 and May 2, 2002, former LPC employee Yelena Goykhman stated the following:
We both know that the reason I am being terminated is due to retaliation. I had all of my duties taken away and then I was fired, right after Terry Hall complained about discrimination. I made it clear that I was going to support Terry Hall during the investigation of his discrimination matter . . .
Further, Haresh Sabnani subjected me to tons of sexual harassment and national origin discrimination . . .
Countless . . . former and current [LPC] employees heard Haresh's anti-Russian remarks and heard his blatantly sexual remarks towards me. I told him to stop it many times and then after complaining to Mark North about Haresh, I was later demoted (all my team leader duties were taken away). This was done despite being told by my managers and co-workers they were happy with my performance . . .
The treatment that I have endured since express[ing] my concerns about Haresh and being a witness to Terry Hall's discrimination claim has been quite noticeable and sad. I had expressed to you and others how I was being ignored and ostracized by Haresh Sabnani and Mark North in particular.
Plaintiff's Exhibit L.
In March 2004, plaintiff began receiving short-term-disability benefits. Plaintiff's EBT pp. 953-954; Sepsi EBT p. 281. Her short-term-disability period ended on June 23, 2004. Plaintiff's EBT pp. 962-963; Defendants Exhibit H. Ms. Tu was then given an unpaid leave of absence from approximately June 24, 2004 through late October 2004. Id. While Ms. Tu was on her leave of absence, emails exchanged between Messrs. North, Sepsi and Sabnani indicate that they attempted to contact her to discuss the Reuters Complaint but were unable to do so. Defendants Exhibit H. Prior to Ms. Tu returning to work, Mr. North wrote a document dated October 24, 2004, entitled "Concerns about Ping Tu's Return." In this document, North lays out several concerns he has regarding Ms. Tu's return, including:
Ping Tu's performance in the year before she took leave was substandard. In fact, we were actively looking to let her go as her probation period was getting worse. She is dead weight from a productivity perspective and an economic liability for LPC. We have standard procedures for dealing with poor employees.
During Ping's period of mental illness she stopped producing anything altogether and became a combative person with both her peers and management.
Ping filed a sexual discrimination charge against her manager that had no basis in fact. It reads paranoid and delusional. Our own investigations revealed nothing but paranoid interpretations of normal events on her part. Somehow, a fabricated set of charges has derailed us from the normal process of terminating a bad employee.
In the period leading up to Ping's filing, in her own words, she was spending most of her time in an information gathering mode for her charges . . . I am wondering if we really need to have unproductive people baiting us to make mistakes when we spend most of the time trying to do right by our employees . . .
So who is going to risk their career working with this person? The managers in technology are not interested in having our professional and personal lives destroyed by a paranoid, litigious person looking for a payout. Ping is, first and foremost, an unproductive employee for [LPC] and should have been fired in May if the normal course of business was allowed to be followed.
Ping Tu's return to the Technology Group seems to me like a potential human resource cataclysm for LPC.
Plaintiff's Exhibit L.
Ms. Tu returned to work on October 28, 2004. That same day, Dr. Zhu signed a "Disability Certificate" stating that Ms. Tu was under his care from March through October 2004 and "has now recovered sufficiently to return to light work duties." Plaintiff's Exhibit L. Despite Dr. Zhu's diagnosis, plaintiff avers that she was "totally overcome" by the heavy workload she was assigned upon return. Plaintiff's EBT at 981. From October 28 through November 4, 2004, Mr. North wrote emails to himself, Sepsi and others chronicling Ms. Tu's daily activities and providing insight as to her behavior and the tactics that should be employed to deal with her. Plaintiff's Exhibit L. For example, in an email from North to himself on October 28, 2004, he states "So far so good . . . We have set it up so that all meetings should be in a group setting vs one on one to avoid any chances of accusations of improper comments or undue pressure on Ping . . . Clearly we are stepping on eggshells." Id. That day, in fact, North wrote six emails to himself and Sepsi regarding Ms. Tu's conduct detailing her whereabouts down to the hour. Id. There are many emails in the record that detail LPC's monitoring of the plaintiff during this juncture, but two more in particular stand out and should be noted. On November 3, 2004, North wrote an email to himself stating "Ping left me a rambling voicemail yesterday about the inappropriateness of my behavior and the probation. I'm not sure if she left it before or after she printed the email and left it on my desk. I will record it." Id. Also on November 3, North had an email exchange with LPC Vice President and Security Officer Angelo Elefantis. Id. In this exchange, Mr. Elefantis stated "Hi Mark. Below are pictures taken the first day Ping arrived to LPC on Thursday Oct. 28. As you can see she arrived at 9:35am. And yesterday Ping left the office at 2:47pm." Id. Mr. North responded by thanking him. Id.
On November 5, 2004, Messrs. North and Sepsi terminated plaintiff's employment with LPC. North avers that following a meeting with Sepsi that morning, they decided to terminate her due to performance issues. North EBT pp. 495-498. Sepsi avers that prior to making the decision to terminate the plaintiff, he had discussions with Reuters counsel and Human Resources Manger Kathy Mahr. Sepsi EBT p. 65. Ms. Tu alleges that she was wrongfully terminated in retaliation for the discrimination complaint she filed in April 2004.
II.Conclusions of Law
It is well established that summary judgment may be granted only when it is clear that no triable issues of fact exist. Alvarez v. Prospect Hosp., 68 NY2d 320, 325 (1986). The burden is upon the moving party to make a prima facie showing of entitlement to summary judgment as a matter of law. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Friends of Animals, Inc. v. Associated Fur Mfts., Inc., 46 NY2d 1065, 1067 (1979). A failure to make a prima facie showing requires a denial of the summary judgment motion, regardless of the sufficiency of the opposing papers. Ayotte v. Gervasio, 81 NY2d 1062, 1063 (1993). If a prima facie showing has been made, the burden shifts to the opposing party to produce evidentiary proof sufficient to establish the existence of material issues of fact. Alvarez, supra, 68 NY2d at 324; Zuckerman, supra, 49 NY2d at 562. The papers submitted in support of and in opposition to a summary judgment motion are examined in a light most favorable to the party opposing the motion. Martin v. Briggs, 235 AD2d 192, 196 (1st Dept 1997). Mere conclusions, unsubstantiated allegations, or expressions of hope are insufficient to defeat a summary judgement motion. Zuckerman, supra, 49 NY2d at 562. Upon the completion of the court's examination of all the documents submitted in connection with a summary judgment motion, the motion must be denied if there is any doubt as to the existence of a triable issue of fact. Rotuba Extruders, Inc. v. Ceppos, 46 NY2d 223, 231 (1978).
A.Hostile Work Environment
The New York City Human Rights Law, which was designed to be more protective than its State and Federal counterparts, is to be interpreted on an independent liberal basis with the goal of "making it the most progressive in the nation." Farrugia v. North Shore University Hospital, 13 Misc 3d 740, 747 (Sup Ct, NY County 2006) quoting Jordan v. Bates Adv. Holdings, Inc. , 11 Misc 3d 764 (Sup Ct, NY County 2006). Existing case law interpreting both the State Human Rights Law and Title VII of the Civil Rights Act of 1964 should serve "as a floor below which the City's Human Rights Law cannot fall, rather than a ceiling above which the local law cannot rise . . . [and] to find the construction that best accomplishes the laws purposes.' Farrugia, 13 Misc 3d at 748 quoting Craig Gurian, A Return to Eyes on the Prize: Litigating Under the Restored New York City Human Rights Law, 33 Fordham Urb. L.J. 255 (2006).
To construct a claim of sexual harassment under the City Human Rights Law, a plaintiff must show that: (1) she belongs to a protected group; (2) she was subject to unwelcome sexual harassment; and (3) the complained of harassment was based upon her sex. Farrugia, 13 Misc 3d at 748. Under Federal and New York State Law, a plaintiff also must set forth a fourth element, that the complained of harassment was also sufficiently severe and pervasive to alter the conditions of employment and create an abusive work environment. Id. citing Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993); Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir 1995); Cosgrove v. Sears, Roebuck Co., 9 F.3d 1033 (2d Cir 1993). This fourth element contradicts the purpose of the City's Human Rights Law where "liability should be determined by the existence of unequal treatment, and questions of severity and frequency reserved for consideration of damages." Farrugia, 13 Misc 3d at 749 quoting A Return to Eyes on the Prize at 297-303.
Here, viewing the facts in a light most favorable to Ms. Tu, she has set forth a sufficient sexual harassment claim. Ms. Tu clearly is a member of a protected group and in her complaint, she alleges numerous, specific instances of sexual harassment she suffered over an approximate two year period while working at LPC. The complained of harassment, especially the comments made regarding Ms. Tu's pregnancy, Mr. Sabnani's seminal fluid and the size of Terry Hall's genitals, clearly are based upon plaintiff's sex. Defendants argue at length that the complained of harassment was not severe or pervasive enough to withstand summary judgment. Under the City's Human Rights Law, these arguments should be reserved for an assessment of damages, not liability. Id. Moreover, even if the court were to consider Ms. Tu's claim of sexual harassment to be "borderline" summary judgment would still not be appropriate. Gallagher v. Delaney, 139 F.3d 338, 342 (2d Cir 1998) (gender relations in workplace are rapidly changing and views of what constitutes appropriate behavior are diverse and in constant motion, thus a jury is appropriate venue for deciding whether borderline situations should be deemed as sexual harassment). In addition, many of Mr. Sabnani's comments including his reference to "Chinese woman", his use of the term "mojo" and his references to having difficulty working with women require an inquiry into his intentions when making these comments. Summary judgment is not appropriate. Carrasco v. Lenox Hill Hosp., 2000 US Dist Lexis 5637 (SDNY 2000) (caution called for in sexual harassment cases where questions of state of mind are immersed in complicated facts rife with disagreement); Distasio v. Perkin Elmer Corp., 157 F.3d 55, 61 (2d Cir 1998) ("summary judgment should be used sparingly' when, as is often the case in sexual harassment claims, state of mind or intent are at issue"); see also DiLaurenzio v. Atlantic Paratrans, Inc., 926 F.Supp 310, 314 (EDNY 1996) (determination of hostile work environment is type of issue not often susceptible to a summary resolution). Consequently, defendants' motion for summary judgment on plaintiff's hostile work environment claim is denied.
B.Discrimination
The New York State and New York City Human Rights Laws declare it an unlawful discriminatory practice for an employer to discharge an individual from employment or to discriminate in "compensation or in terms, conditions or privileges of employment" on the basis of race or national origin. Executive Law, Section 296(1)(a); N.Y.C. Administrative Code § 8-107(1)(a). The standards for recovery under the New York City and New York State Human Rights Laws are in accord with Federal standards under Title VII of the Civil Rights Act of 1964 ( 42 USC § 2000e et seq.). Ferrante v. American Lung Ass'n, 90 NY2d 623, 629 (1997); Shah v. Wilco Sys., Inc., 2005 NY Slip Op 10232, 6 (1st Dept. 2005), affirmed, Shah v. Wilco Sys., 76 Fed. Appx. 383 (2d Cir. 2003).
A plaintiff has the initial burden of establishing, by a preponderance of the evidence, a prima facie case of racial discrimination in employment. Id. To meet this burden, plaintiff must show that (1) she is a member of a protected class, (2) she was qualified to hold the position, (3) she was terminated from employment or suffered other adverse employment action, and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination. Bailey v. New York Westchester Sq. Med. Ctr., 2007 NY Slip Op 99, 3 (1st Dept. 2007), citing Forrest v Jewish Guild for the Blind , 3 NY3d 295, 305 (2004). Where a discrimination claim is based on disparate pay, the prima facie case must have proof that the plaintiff was paid "less than similarly situated non-members of the class." Shah v. Wilco Sys., Inc., 2005 NY Slip Op 10232, supra at6. Further, a plaintiff must produce evidence of discriminatory animus to establish a prima facie case of salary discrimination. Belfi v. Prendergast, 191 F.3d 129,139 (2d Cir. 1999).
If the plaintiff meets this burden, the employer must produce evidence that the adverse employment actions were taken for a legitimate, nondiscriminatory reason. St. Mary's Honor Ctr. v Hicks, 509 U.S. 502 (1993). If the employer produces such evidence, plaintiff must then show that the proffered reason was merely a pretext for discrimination by demonstrating "both that the reason was false, and that the discrimination was the real reason." Dickerson v. Health Mgmt. Corp. of Am. , 21 AD3d 326, 328 (1st Dept. 2005). The evidence used on plaintiff's prima facie case remains relevant to a consideration of whether the defendant's reason was a pretext for discrimination. Ferrante v. American Lung Assoc., 230 AD2d 685 (1st Dept. 1996).
The presumption raised by the prima facie case drops if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff. Ferrante v. American Lung Ass'n, 90 NY2d, supra at 629. It is not enough for the fact finder to disbelieve the employer; the fact finder must believe plaintiff's contention that the employer's actions are the result of intentional discrimination. Id. at 630. Stated differently, when the plaintiff proves that the explanations by the employer for wage disparity are false, that does not automatically mean that the plaintiff has carried the burden of proving discriminatory intent. Belfi v. Prendergast, supra at 140. The plaintiff must prove both that the reason is pretextual and that the employer's real reason was discrimination. Id.; Bailey v. New York Westchester Sq. Med. Ctr., supra.
In order to prevail on a salary discrimination claim, the plaintiff must also prove that the comparators are "similarly situated," in "all material respects." Shah v. Wilco Sys., Inc., supra at 6. It is not enough to show that the employees duties are "analogous." Id. Further, it is essential for the plaintiff to demonstrate that similarly situated employees are paid more. Id. An employer is "well within its rights in considering the marketplace value of [an employee's] skills when determining his salary." Kent v. Papert Cos., 309 AD2d 234, 244 (1st Dept. 2003).
Nonetheless, summary judgment may not be granted simply because the court believes that the plaintiff will be unable to meet his or her burden of persuasion at trial. Danzer v. Norden Sys., 151 F.3d 50, 54 (2d Cir. 1998). There must either be a lack of evidence in support of the plaintiff's position, or the evidence must be so overwhelmingly tilted in one direction that any contrary finding would constitute clear error. Id. Once a plaintiff has established a prima facie showing of discrimination, a plaintiff "need only point to evidence establishing a reasonable inference that the employer's proffered explanation is unworthy of credence." Ferrante, 230 AD2d at 685.
1.Plaintiff's Pay Discrimination Claim
Here, plaintiff has failed to set forth a prima facie case for wage discrimination. Michael Shekhtman, a male Software Developer for LPC from the former U.S.S.R., avers that he did not receive a salary increase when he took over as Team Leader on the Web Dealscan project following Ms. Tu's resignation in October of 2003. Defendants Exhibit J. The record shows that in 2003, Mr. Shekhtman, who also held the title of Software Developer, was paid $58,500. Defendants Exhibit H. In 2003, Ms. Tu was paid $61,750. Id. Accordingly, since Ms. Tu was paid a higher salary than Mr. Shekhtman, a non-member of her class, she cannot show that she was paid less than a similarly situated employee. Shah v. Wilco Sys., Inc., supra at 6. Consequently, defendants motion for summary judgment on plaintiff's wage discrimination claim is granted. Baptiste v. Cushman Wakefield, 2007 US Dist Lexis 19784 (SDNY 2007) (summary judgment granted dismissing plaintiff's wage discrimination claim where plaintiff was paid a higher salary than a similarly situated male employee at the same salary level).
2.Plaintiff's Gender, National Origin and Disability Discrimination Claims
Defendants do not contest that Ms. Tu was a member of a protected class or that she was qualified to hold the position of Team Leader or Software Developer. However, they contend that their conduct did not rise to the level of a materially adverse employment action. An adverse employment action is defined as follows:
An adverse employment action requires a materially adverse change in the terms andconditions of employment. To be materially adverse, a change in working conditions must be "more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices . . . unique to a particular situation.
Forrest, 3 NY3d at 306 quoting Galabaya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir 2000).
Many of the allegations complained of by Ms. Tu, including: increases in workload during and after her pregnancy; derogatory statements by Mr. Sabnani; the denial of the opportunity for self improvement; the failure by Mr. Sabnani to accommodate her cultural superstitions by forcing her to shake hands while pregnant; the failure to give her time off while she was pregnant; and the failure to give her light work duty to accommodate her depression do not rise to the level of an adverse employment action. Forrest, 3 NY3d at 307 citing Frida v. Henderson, 2000 US Dist Lexis 17295, *22 (SDNY 2000) (excessive work, denials of requests for leave with pay and a supervisor's general negative treatment of plaintiff are not materially adverse changes in terms, conditions or privileges of employment); Katz v. Beth Israel Med. Ctr., 2001 US Dist Lexis 29, *44 (SDNY 2001) ("Being yelled at, receiving unfair criticism, receiving unfavorable schedules or work assignments . . . do not rise to the level of adverse employment actions"). However, Ms. Tu's termination on November 5, 2004 constitutes an adverse employment action. Forrest, 3 NY3d at 307 ("Clearly, termination constitutes an adverse action.").
Ms. Tu however was terminated from her employment and her discharge may have occurred under circumstances giving rise to an inference of discrimination, the fourth factor establishing a prima facie case. This fourth factor requires a low threshold of proof and can be satisfied from direct evidence, statistical evidence, or from the fact that the position was filled or held open for an individual not in the same protected class. Sogg v. American Airlines, Inc., 193 AD2d 153, 156-57 (1st Dept 1993). In this case, plaintiff has produced sufficient evidence that, if believed by a jury, would support an inference of discrimination, including, but not limited to: Mr. Sabnani's disparaging comments and refusal to accommodate Ms. Tu during her pregnancy; LPC's refusal to accommodate her depression; and Mr. Sabnani's comments regarding her Chinese culture. This type of evidence, either by itself or in concert with other factors, provides a basis to either allow the plaintiff to have her day in court or to raise the defendants burden of proof. Ferrante, 230 AD2d at 686 citing Equal Empl. Opportunity Commn. v. Alton Packaging Corp., 901 F.2d 920 (11th Cir 1990) (racial slurs uttered by person responsible for promotion constituted evidence of discriminatory motive requiring employer to prove by a preponderance of evidence that employee would not have been promoted anyway). Discriminatory remarks should be considered in light of the totality of the evidence, including whether they are made by someone with great influence in the decision-making process. Tomassi v. Insignia Financial Corp., 478 F3d 111 (2d Cir 2007). Here, Mr. Sabnani was plaintiff's immediate supervisor who provided numerous performance evaluations of her work. These evaluations had a direct bearing on LPC's decision to terminate her employment.
Defendants argue that Ms. Tu was terminated due to her poor performance. The record contains testimony, emails and other internal LPC documentary evidence that does indeed raise the issue of Ms. Tu's competency during the final year-and-a-half of her employment. However, in employment discrimination cases, the court must proceed with caution in the summary judgment context because the employer's intent is often at issue and carful attention may show circumstantial evidence that supports an inference of discrimination. Carrasco, 2000 US Dist Lexis 5637 at *14 citing Belfi, 191 F.3d at 135; Gallo v. Prudential Residential Servs., Ltd. Pship., 22 F.3d 1219, 1224 (2d Cir 1994) ("Because writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination"). In assessing whether or not discriminatory intent exists, the court must be mindful that one with such intent cannot be expected to declare or announce its purpose. Sogg, 193 AD2d at 160. It is far more likely that one will pursue discriminatory practices deviously, by using subtle and elusive methods. Id. quoting Matter of Imperial Diner v. State Human Rights Appeal Bd., 52 NY2d 72, 77 (1980). Therefore, a plaintiff is not expected to establish that the defendants actually expressed their discriminatory intent and the record must be analyzed as a whole to discover whether, in light of all the circumstances, the evidence supports a finding of discriminatory intent. Sogg, 193 AD2d at 160 citing City of Schenectady v. State Div. of Human Rights, 37 NY2d 421, 427 (1975).
Moreover, to defeat a motion for summary judgment in this context, a plaintiff need only identify a disputed issued of material fact as to whether defendant's proffered reason for termination was simply a pretext for discrimination. Ferrante, 230 AD2d at 686. As noted above, Mr. Sabnani's conduct prior to Ms. Tu's termination clearly raises issues of material fact as to why she was indeed terminated. Id. Consequently, defendants motion for summary judgment dismissing plaintiff's claims for gender, national origin, and disability discrimination is denied. Id. (even where defendant submitted evidence tending to negate plaintiff's proof, court's role in deciding a summary judgment motion is one of issue-identification, not issue-determination. Thus, because plaintiff raised a triable material issue of fact regarding reason proffered for discharge was a pretext for discrimination, defendant's motion for summary judgment should have been denied).
C.Retaliation
Retaliation claims under Title VII are evaluated based upon the same burden shifting framework used in discrimination cases. Griffin v. Ambika Corp., 103 F.Supp.2d 297, 311 (SDNY 2000). In order to establish a prima facie case for retaliation, a plaintiff must show: (1) she was engaged in a Title VII protected activity; (2) the employer was aware of the plaintiff's participation in the protected activity; (3) there was an adverse employment action; and (4) there was a causal connection between the protected activity and the adverse action. Id. A causal connection may be established "indirectly by showing that the protected activity was followed closely by discriminatory treatment, or through other evidence such as disparate treatment of fellow employees who engaged in similar conduct, or directly through evidence of retaliatory animus directed against a plaintiff by the defendant." Davis v. Halpern, 768 F.Supp 968, 985 (EDNY 1991) quoting De Cinto v. Westchester County Medical Ctr., 821 F.2d 111, 115 (2d Cir 1987).
Once a plaintiff has established a prima facie case of retaliation, the burden shifts to defendant to show a legitimate non-discriminatory reason for its action. Griffin, 103 F.Supp.2d at 311; Davis, 768 F.Supp at 985. If the defendant meets its burden, the plaintiff must then demonstrate that defendant's proffered reason is pretextual and that its actual reason was retaliation. Id. A plaintiff may accomplish this feat in either of two ways: (1) by persuading the court with direct evidence that a discriminatory reason more likely than the proffered reason, motivated the employer's decision or; (2) by directly persuading the court by showing that the employer's proffered explanation is not worthy of credence. Davis, 768 F.Supp at 985 citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 256 (1981).
Here, defendants do not contest that Ms. Tu was engaged in a protected activity, that they were aware of the activity and that an adverse employment action (plaintiff's termination) took place. Defendants, however, do challenge the fourth factor and claim that no causal connection exists. They argue that plaintiff was terminated due to her poor performance and her failure to perform to the basic standards of her job. Plaintiff filed her discrimination complaint with Reuters in April of 2004 while she was on leave for short-term-disability. Her short-term-disability period ended on June 23, 2004, and plaintiff was placed on unpaid leave of absence through late October 2004. Prior to her return, North's document, dated October 24, 2004, and entitled "Concerns about Ping Tu's Return," is sufficient to articulate animus. Upon her return to LPC on October 28, 2004, emails from North to himself, Sepsi and others may further chronicle animus. Activities such as monitoring her whereabouts by the hour, recording her voicemails and having his Security Officer mark photos of Ms. Tu coming and going from work provide enough of a basis, at this point, for the court to find that animus may have existed. In fact, this evidence, if believed by a jury, may demonstrate that North, Sepsi and other members of LPC were attempting to create a scenario by which they could terminate Ms. Tu without having to worry about her discrimination claim.
Defendants argue that Ms. Tu was terminated for her lack of performance citing her numerous absences from work and disputes that she had with her co-workers. The court is mindful of the fact that Ms. Tu was placed on probation in March of 2004 for this and other conduct and was warned that a failure to improve her performance may result in termination. However, it must also be noted that Ms. Tu was admitted into Coney Island Hospital for depression on February 22, 2004, and that she also suffered a miscarriage around this time. Dr. Zhu avers that her admission to the hospital and miscarriage were "substantially caused by or related to her difficulties at work." Therefore, issues of fact exist concerning what caused Ms. Tu's performance to deteriorate, and, thus what actually caused her to be placed on probation.
In addition, plaintiff claims that despite Dr. Zhu's certificate affirming her depression and recommendation of light work upon her return, Messrs. North and Sabnani increased her workload in retaliation for her discrimination claim. A question exists on this issue, since both men testified that they did not increase her workload upon her return. In sum, Ms. Tu has proffered enough, at this stage, to sustain her retaliation claim. See Davis, 768 F.Supp.2d at 985 (at summary judgment stage, a plaintiff may preclude dismissal of her claim by producing evidence from which a reasonable jury could conclude that legitimate reasons proffered by employer were pretextual).
D.Reuters
Under New York's Human Rights Law, to determine if a parent company such as Reuters is liable under Title VII, the court focuses on whether: (1) the company had the power to select the employee; (2) the company paid the employee's salary or wages; (3) the company had the ability to dismiss the employee; and (4) the company had the power to control the employee's conduct. Bayard v. Riccitelli, 952 F.Supp. 977, 983 (EDNY 1997). The most important element is the fourth factor which is "the degree of control [the parent company] exercises over policy making and the mean's and manner of an employee's work performance." Id. quoting Dortz v. City of New York, 904 F.Supp. 127, 145 (SDNY 1995). Although not controlling, the court should consider whether or not the parent and subsidiary are integrated economially. Bayard, 952 F.Supp. at 983.
Here, Messrs. North and Sepsi testified that LPC operated as an independent non-integrated subsidiary of Reuters. As a non-integrated subsidiary, LPC developed its own business strategy, had its own management group which made decisions independent of Reuters regarding personnel, operations, budget and financials. Sepsi EBT at p. 75-76; Mark North EBT at p. 45-46. The evidence demonstrates that LPC made decisions independent of Reuters regarding the evaluation of Ms. Tu's performance. Plaintiff has not offered any evidence to show that Reuters controlled the hiring of LPC employees, paid their salary or wages, controlled LPC's personnel decisions or exercised any control over the employee's conduct. Consequently, defendants motion for summary judgment dismissing the complaint against Reuters is granted.
E.Haresh Sabnani Individually
New York Human Rights Law § 296(6) states that "it shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or to attempt to do so." The First Department has adopted the rule that "an individual may be liable for aiding discriminatory conduct." Steadman v. Sinclair, 223 AD2d 392, 393 (1st Dept 1996) citing Peck v. Sony Music Corp., 221 AD2d 157 (1st Dept 1995). In her complaint, Ms. Tu alleges that Mr. Sabnani is directly responsible for many of the discriminatory actions alleged to have been committed. The defendants failed to address this issue in their original papers in support of this motion. Defendants attempt to do so for the first time in their reply papers which is improper and will not be considered. Tchaika Renewal Co. v. City of New York, 232 AD2d 250, 251 (1st Dept 1996); Schiulaz v. Arnell Constr. Corp., 261 AD2d 247, 248 (1st Dept 1999) (arguments raised for first time in reply papers will not be considered on motion for summary judgment). Hence, defendants motion for summary judgment dismissing plaintiff's claims against Haresh Sabnani is denied.
F.Negligent Supervision and Retention
In instances where an employer cannot be held vicariously liable for torts committed by an employee, the employer may still be held liable under theories of negligent hiring and retention. Shelia C. v. Povich , 11 AD3d 120 , 129 (1st Dept 2004). A claim for negligent supervision or retention arises when an employer places an employee in a position to cause foreseeable harm, harm which the injured party most probably would have been spared had the employer taken reasonable care in supervising or retaining the employee. Id.; Kenneth R. v. Roman Catholic Diocese of Brooklyn, 229 AD2d 159 (2d Dept 1997) (negligent retention of priest where Church alleged to have notice that he was molesting children). An essential element of these causes of action are that the employer knew or should have known of the employee's propensity for the conduct that caused the injury. Id.
Here, Ms. Tu has offered enough evidence to show that LPC should have been on notice regarding Mr. Sabnani's conduct. In a letter dated January 25, 2002, Terry Hall claimed that he had been discriminated against based upon race, and as a result, suffered disparate treatment and was subject to a hostile work environment. In his letter, Mr. Hall specifically stated that Messrs. North and Sabnani subjected him to a "barrage of [discriminatory] remarks." In addition, in two separate letters to Mr. Sepsi dated April 22 and May 2, 2002, former LPC employee Yelena Goykhman stated that she also had been subject to discriminatory conduct by Mr. Sabnani during her tenure of employment. The record is devoid of any evidence as to whether or not any action was taken regarding Mr. Sabnani's conduct or whether or not the allegations made by Terry Hall and Yelena Goykhman were found to have any merit. Therefore, at a minimum, the proffered evidence raises issues of fact as to whether Mr. Sabnani had a propensity to commit discriminatory conduct and whether LPC knew or should have knew of such a propensity. Defendants' remaining argument regarding Workers Compensation is once again raised for the first time on reply and therefore will not be considered. Tchaika Renewal Co., 232 AD2d at 251; Schiulaz, 261 AD2d at 248. Accordingly, it is
ORDERED that defendants' motion for summary judgment to dismiss plaintiff's hostile work environment claim is denied; and it is further
ORDERED that defendants' motion for summary judgment to dismiss plaintiff's claim for wage discrimination is granted; and it is further
ORDERED that defendants' motion for summary judgment to dismiss plaintiff's gender, national origin and disability discrimination claims is denied; and it is further
ORDERED that defendants' motion for summary judgment to dismiss plaintiff's retaliation claim is denied; and it is further
ORDERED that defendants' motion for summary judgment to dismiss plaintiff's negligent retention claim is denied; and it is further
ORDERED that defendants' motion for summary judgment to dismiss the complaint against defendant Haresh Sabnani is denied; and it is further
ORDERED that defendants' motion for summary judgment to dismiss the complaint against defendant Reuters America LLC is granted and the complaint is hereby severed and dismissed as against defendant Reuters America LLC, and the Clerk is directed to enter judgment in favor of said defendant; and it is further
ORDERED that the remainder of the action shall continue.