Summary
holding that while an individual can be sued under both the New York State Human Rights Law and New York City Human Rights Law, the plaintiff must show that the individual defendant engaged in "discriminatory acts"
Summary of this case from Richards v. City of New YorkOpinion
00 CIV. 9682 (DLC)
August 21, 2002
Paul E. Kerson, Law Offices of G. Oliver Koppell Associates New York, NY, for Plaintiff Aaron J. Schindel.
Lisa M. Brauner, Proskauer, Rose, LLP, New York, NY, Defendants.
OPINION AND ORDER
Plaintiff Jong-Fwu (Jack) Lee ("Lee") was employed as an accountant by the defendants since 1982. Following an adverse performance review in 1997, Lee complained of discrimination based on his national origin. Lee was born in China. In 1999, Lee was one of thirty-two employees whose employment was terminated during a reduction-in-force ("RIF").
On December 21, 2000, Lee filed this action alleging discrimination based on race and national origin in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), the New York State Human Rights Law ("State HRL"), and the New York City Human Rights Law ("City HRL"). On July 30, 2001, defendants' motion to dismiss was granted in part. Following discovery, defendants Overseas Shipholding Group, Inc. ("OSG"), Maritime Overseas Corporation ("MOC"), Overseas Shipholding Group Management, Inc. ("OSGM"), and Jerry Miller ("Miller"), Vice President of the Accounting Department, have moved for summary judgment on the remaining claims, to wit, that they discriminated against Lee in failing to pay him overtime and that he was fired in retaliation for his complaint of discrimination. For the reasons that follow, the defendants' motion for summary judgment on the overtime pay claim is granted. The retaliatory firing claim must be decided at trial.
BACKGROUND
The following facts are undisputed or as shown by the plaintiff unless otherwise noted. Plaintiff Lee is a naturalized American citizen who was born in China on December 23, 1943. He received his Bachelor's Degree of Commerce in Taiwan in 1967, and his MBA from Illinois State University in 1973. He has been a Certified Public Accountant since 1981.
Lee was hired by MOC in 1982, as Manager of Accounting Review and remained in that position until May 1999, when his employment was terminated. Ten people in the Accounting Review Department reported to Lee. As of the termination of his employment, Lee was responsible for preparing reports that were used by the Accounting Department to produce financial statements, preparing such financial statements, reviewing and numbering accounting papers and folders, and compiling consolidation folders.
Until February 1999, Lee reported to Comptroller Andy Polchinski ("Polchinski"), and his work was reviewed by Polchinski, Miller, and another individual named David Katzman. At some point, Lee ceased participating in his annual review discussions with Polchinski and refused to sign his reviews. Nonetheless, Lee received an annual review in each year of his employment except 1998. None of the seven employees who reported to Polchinski received reviews in 1998. Miller became Lee's direct supervisor in February 1999, and continued as his supervisor through May 1999.
Lee was classified by his employer as an "exempt" employee, that is, an employee not entitled to overtime under the Department of Labor's wage and hour laws. The company's manual provides that "[e]xempt employees are not eligible for overtime pay," and "may be expected to work in excess of the normal workday without additional compensation," although such employees may occasionally be treated as non-exempt for overtime purposes. (Emphasis in original.) Lee asserts that he was required to stay overtime "approximately two hours per day for six weeks in every quarter" between July 12, 1982 and May 27, 1999.
Other employees, apparently non-exempt employees, received overtime compensation. In particular, Travel Personnel of the Operations Department received "compensatory time" or vacation hours for overtime hours worked. Travel Personnel include Port Captains and Port Engineers "who handle fleet operations and travel extensively throughout the year as a part of their job." "[O]n an unofficial basis," a supervisor might also occasionally grant compensatory time to an employee who "has put in an extraordinary amount of time."
All employees, including Lee, received stock options in 1990 based on years with the company and in 1998 based on salary levels. Officers currently receive bonuses and stock options under a program established in January 1999.
On December 11, 1997, Witschieben met with Lee to discuss areas of Lee's performance that were of concern. On December 15, 1997, Witschieben read to Lee a written memorandum summarizing the December 11 discussion and gave him a copy of that warning. Lee refused to sign the memorandum.
On January 7, 1998, Lee submitted to Witschieben a seventy-six page written response to the December 15 memorandum detailing claims of discrimination, including claims based on his national origin, and requesting a hearing. On November 23, 1998, Witschieben gave Lee a written report of her investigation of his claims, which concluded that there was no evidence of discrimination.
In response to a request that he recommend staff reductions, Miller recommended the elimination of three positions: Lee's position and two Accounting Clerk positions, one of which was held by Michael Kammerman ("Kammerman") and the other by a temporary employee. On May 27, 1999, Witschieben and Miller informed Lee that his employment was terminated effective May 28. Thomas Mercurio ("Mercurio"), previously a senior auditor in Miller's department, became "Supervisor of Accounting Review" and was put in charge of the Accounting Review Department. On January 1, 2002, the department's functions were transferred to Newcastle, England.
The defendants maintain that Lee's position was eliminated solely because of the company-wide RIF. The company terminated the employment of thirty-two employees in connection with the RIF, eighteen of whom were Caucasian, seven Hispanic, six African-American, and one Asian-American. Three of the seven employees who reported to Polchinski and who did not receive an annual review in 1998, including Lee, were discharged in connection with the RIF.
Lee filed a complaint with the EEOC and the New York Commission on Human Rights on October 8, 1999, against OSGM, Miller, and other individual defendants, alleging retaliation and discrimination on the basis of age and national origin. He filed a complaint in federal court on December 21, 2000, alleging retaliation and race and national origin discrimination and amended that complaint on March 16, 2001. In his complaint, plaintiff alleges, inter alia, that he was denied overtime pay and that he was fired in retaliation for complaining about discrimination he experienced.
In an Opinion dated July 30, 2001, all claims against the individually-named defendants except for the claim of retaliatory termination under Section 1981, State HRL and City HRL against Miller, were dismissed as untimely. In addition, all claims against the corporate defendants under Title VII, Section 1981, State HRL, and City HRL, except for the claims based on retaliatory termination and unequal overtime pay, were dismissed. Lee v. Overseas Shipholding Group, Inc., No. 00 Civ. 9682 (DLC), 2001 WL 849747, at *11 (S.D.N.Y. July 30, 2001).
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). The substantive law governing the case will identify those issues that are material, and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "A dispute regarding a material fact is genuine if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Mount Vernon Fire Ins. Co. v. Belize NY, Inc., 277 F.3d 232, 236 (2d Cir. 2002) (citation omitted). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the Court must view all evidence in the light most favorable to the nonmoving party. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 465-66 (2d Cir.), cert. denied, 122 S.Ct. 460 (2001). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Fed.R.Civ.P. 56(e); see also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record, and (2) whether the facts in dispute are material based on the substantive law at issue.
1. Claim of Unequal Pay
Courts analyzing discrimination claims under Title VII apply the three step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-05 (1973). Under this framework, a plaintiff must first establish a prima facie case of discriminatory denial of equal pay by showing that (1) he is a member of a protected class; (2) he was "paid less than non-members of [his] class for work requiring substantially the same responsibility;" and (3) the unequal pay occurred under circumstances giving rise to an inference of discriminatory animus. Belfi v. Prendergast, 191 F.3d 129, 139 (2d Cir. 1999); see also Austin v. Ford Models, Inc., 149 F.3d 148, 153 (2d Cir. 1998) (overtime), abrogated on other grounds by Swierkiewicz v. Sorema N.A., 534 U.S. 506 (2002); Tomka v. Seiler Corp., 66 F.3d 1295, 1310, 1312-13 (2d Cir. 1995) (equal pay), abrogated on other grounds by Burlington Indus., Inc. v. Ellerth, 524 U.S. 742 (1998). Although the plaintiff's burden in making out a prima facie case is "minimal," Belfi, 191 F.3d at 139, the fact that a plaintiff was paid less than an employee who performed a job that was "merely comparable" to the plaintiff's job is not sufficient to establish a prima facie case of unequal pay. Tomka, 66 F.3d at 1310 (citation omitted).
The defendants maintain that Lee's overtime claim is unexhausted because he did not raise it in his administrative charge. The plaintiff maintains that his allegation of unequal terms and conditions of employment covers the denial of overtime. It is unnecessary to resolve this dispute because defendants are entitled to summary judgment for other reasons.
Upon establishing a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001). If the employer has met its burden, the plaintiff bears the ultimate burden of showing that the defendant intentionally discriminated against the plaintiff. Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000). The "plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated." Windham v. Time Warner, Inc., 275 F.3d 179, 187 (2d Cir. 2001) (citation omitted). An employer that has put forth nondiscriminatory reasons for its employment action is entitled to summary judgment "unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James v. N.Y. Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
Lee alleges that he was denied overtime pay while other employees were paid overtime, including: employees of the Department of Internal Audit, Department of Information Systems, and some employees of the Accounting Review Department after the termination of Lee's employment; corporate officers; employees of the Operations Department; and other unnamed employees. Lee has failed to establish the elements of a prima facie case other than showing that he is a member of a protected class and was not paid overtime for overtime hours worked. He has not submitted evidence sufficient to show, and in some cases does not even allege, that (1) his responsibilities were substantially similar to those of employees who may have been paid overtime, or (2) that those employees were not members of his class.
The defendant emphasizes that Lee was an "exempt" employee under federal labor law and company regulations and thus not entitled to overtime pay. The fact that OSGM was not required by federal law to pay Lee overtime is not a complete answer to Lee's claim of discriminatory denial of overtime. Austin, 149 F.3d at 153. But see Salvatore v. KLM Royal Dutch Airlines, No. 98 Civ. 2450 (LAP), 1999 WL 796172, at *15 (S.D.N.Y. Sept. 30, 1999) (must be qualified for overtime). If OSGM paid overtime to other employees with sufficiently similar responsibilities who were not members of Lee's protected class and denied Lee such pay, Lee will have made out a prima facie case of discriminatory denial of equal pay.
A. Department of Internal Audit, Department of Information Services, and Accounting Review Department
Lee has not shown that employees of the Department of Internal Audit, Department of Information Systems or the Accounting Review Department were actually paid for overtime work. This allegation rests solely on Lee's conclusory, inadmissible and uncorroborated assertions in his deposition and affidavit. "[U]ltimate or conclusory facts . . . cannot be utilized on a summary judgment motion." BellSouth Telecomm., Inc. v. W.R. Grace Co., 77 F.3d 603, 615 (2d Cir. 1996) (citation omitted); see also Kamen v. Am. Tel. Tel. Co., 791 F.2d 1006, 1011 (2d Cir. 1986). Lee has not named a single employee, identified the job title of an employee or provided evidence of the duties of any employee in these three departments who received overtime pay. Further, because he has not named any individual, Lee has also failed to establish that those who received overtime were not members of his class. Indeed, he admits that the Accounting Review Department has a large percentage of non-Caucasian employees. He has provided no information regarding the race or national origin of employees of the other two departments other than to allege that the company as a whole has a staff of predominately Caucasian employees.B. Officers
While he appears to have abandoned this argument, Lee had alleged in his deposition that officers such as Miller, Polchinski and possibly an individual named Tom Saunders received overtime compensation in the form of a "special bonus scale." Lee has failed to submit admissible evidence regarding payment of overtime compensation to officers. He has not submitted any evidence that the bonuses or other benefits paid to officers, including stock options, were geared to the number of hours that they worked overtime or that these benefits constituted payment for overtime hours worked. In his deposition, Lee admitted that he did not know if there was any correlation between the benefits received by officers and their hours of overtime work. Lee has also failed to provide sufficient information regarding the responsibilities of officers in order to compare in any detail their duties with his.
C. Operations Department Employees
Certain employees in the Operations Department received overtime compensation. The undisputed evidence regarding the responsibilities of employees of the Operations Department is, however, that Operations Department personnel have very different duties than those performed by Lee. Lee admits that the Operations Department "handle[s] the ships," and has nothing to do with financial accounting. Within the Operations Department, the employees who receive pay for overtime work are "Travel Personnel" who "handle fleet operations and travel extensively throughout the year as part of their job." Lee's responsibilities did not include travel or the handling of ships. Because Lee cannot establish that the other employees had substantially similar responsibilities, he has failed to make out a prima facie case. Finally, Lee has provided no information regarding the race or national origin of the employees in the Operations Department who received overtime pay other than, as already noted, to allege that the company was staffed predominately by Caucasian employees.
Even were the plaintiff to succeed in making out a prima facie case with regard to payment of overtime to Operations Department personnel, he has not offered any evidence to rebut the legitimate, non-discriminatory reason advanced by the defendants. The defendants maintain that these employees were paid "compensatory time" because their jobs required them to be away from the office frequently and for long periods. Lee has not submitted any evidence to show that this reason is pretextual or provided other evidence from which intentional discrimination could be inferred.
D. Other Unnamed Employees
Although the defendants do not dispute the fact that supervisors occasionally and on an unofficial basis pay an employee overtime for extraordinary hours worked, the plaintiff has not submitted any evidence regarding when or how often such payments were made, which employees in which departments received such payments, the employees' responsibilities, or the race or national origin of these employees. Without more, evidence of these occasional and irregular payments is insufficient to establish a prima facie case of unequal pay.
Because Lee has not presented evidence sufficient to create a question of fact with regard to his Title VII claim, his unequal pay claims under Section 1981, the State HRL and the City HRL against OSGM and OSG must also be dismissed. See, e.g., Abdu-Brisson, 239 F.3d at 466 (State and City HRLs); Tadros v. Coleman, 898 F.2d 10, 11 n. 1 (2d Cir. 1990) (Section 1981).
2. Retaliatory Discharge Claim Against Corporate Defendants
Title VII forbids retaliation against an employee for "oppos[ing] any practice made an unlawful employment practice" by that statute. 42 U.S.C. § 2000e-3(a); see also Coffey v. Dobbs Int'l Serv., Inc., 170 F.3d 323, 326 (2d Cir. 1999). To state a prima facie case of retaliation under Title VII, the plaintiff must show that: (1) he was engaged in a protected activity; (2) the employer was aware of his participation in the protected activity; (3) he was subject to an adverse employment action; and (4) there is a causal nexus between the protected activity and the adverse action taken. Holtz, 258 F.3d at 79; Cifra v. Gen. Elec. Co., 252 F.3d 205, 216 (2d Cir. 2001). If the plaintiff establishes a prima facie case, the burden shifts to the defendant "to articulate a legitimate, non-discriminatory reason for the allegedly retaliatory act." Holtz, 258 F.3d at 81.
If the employer articulates a non-discriminatory reason for the employment action at issue, the plaintiff bears the ultimate burden of proving retaliation. Slattery v. Swiss Reinsurance Am. Co., 248 F.3d 87, 93-94 (2d Cir.), cert. denied, 122 S.Ct. 348 (2001). Although retaliation need not be the only cause of the adverse employment action, a "retaliatory motive must be . . . at least a substantial or motivating factor." Raniola v. Bratton, 243 F.3d 610, 625 (2d Cir. 2001) (citation omitted); see also Gordon v. New York City Bd. of Ed., 232 F.3d 111, 117 (2d Cir. 2000). A plaintiff can show that retaliation was a substantial or motivating factor behind a particular action either
(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against plaintiff by defendant.
Raniola, 243 F.3d at 625 (emphasis supplied).
Lee's filing of the seventy-six page complaint in January 1998 was a protected act. "The law protects employees in the filing of formal charges of discrimination as well as in the making of informal protests of discrimination, including making complaints to management." Gregory v. Daly, 243 F.3d 687, 700-01 (2d Cir. 2001) (citation omitted). A jury must decide whether that complaint was a substantial or motivating factor behind the termination of Lee's employment in 1999, or whether, as the defendants assert, he was fired solely as a result of a RIF. While the gap of almost seventeen months between Lee's participation in a protected activity — the filing of a complaint on January 7, 1998 — and the termination of Lee's employment on May 27, 1999, is significant, other facts bring these two events closer in time, including Witschieben's investigation of Lee's complaint between January and November 1998, or the delivery of her report on November 23, 1998. Moreover, there is evidence from which a jury may conclude that Lee's position was not eliminated and that he was replaced by Mercurio, an individual transferred from Miller's department, and Michael Hanrahan. A reasonable factfinder may infer that Lee's inclusion in the RIF was substantially motivated by retaliation. See Gallo v. Prudential Residential Serv., Ltd. P'ship, 22 F.3d 1219, 1226 (2d Cir. 1994) ("Although an employer is certainly entitled to reduce its force and structurally reorganize its operations to maximize efficiencies, it may not discharge an employee `because' of her age.").
3. Retaliatory Discharge Claim Against MOC
Lee's suit against MOC must be dismissed because MOC was not Lee's employer when his employment was terminated and thus it is not implicated in Lee's remaining claim of retaliation. MOC, which no longer exists, was Lee's employer between 1982 and 1998. OSGM succeeded to the business and employees of MOC in approximately 1998, and was plaintiff's employer when his employment was terminated. OSGM is a wholly-owned subsidiary of OSG.
4. Retaliatory Discharge Claim Against Miller
Plaintiff's claim of retaliatory discharge under Section 1981 against defendant Miller can survive a motion for summary judgment only on a showing of "some affirmative link to causally connect the actor with the discriminatory action." Whidbee v. Garzarelli Food Specialties, Inc., 223 F.3d 62, 75 (2d Cir. 2000) (citation omitted). A Section 1981 claim seeking individual liability must be "predicated on the actor's personal involvement." Id. (citation omitted). Miller recommended to his supervisor that Lee's position be eliminated as part of the RIF. This is sufficient to constitute personal involvement in the decision to terminate Lee's employment.
An individual corporate employee may be personally liable under the State HRL if he can be shown to have an ownership interest in the corporation or the "power to do more than carry out personnel decisions made by others." Tomka, 66 F.3d at 1317 (citation omitted); see also Patrowich v. Chem. Bank, 63 N.Y.2d 541, 542 (1984) (per curiam). The City HRL prohibits discriminatory practices not only by an "employer," but also by "an employee or an agent thereof," and thus provides for the individual liability of employees regardless of ownership or decision-making power. Murphy v. ERA United Realty, 674 N.Y.S.2d 415, 417 (2d Dep't 1998). Under both statutes, the plaintiff must show that the defendant engaged in "discriminatory acts." Stallings v. U.S. Elec. Inc., 707 N.Y.S.2d 9, 10 (1st Dep't 2000); see also Smith v. AVSC Int'l, Inc., 148 F. Supp.2d 302, 309 (2d Cir. 2001). Miller's recommendation that Lee's position be eliminated is sufficient to establish his control over Lee's position and his power to do more than carry out personnel decisions, as well as his involvement in the retaliatory act. Defendants' motion for summary judgment on the claims against Miller is denied.
Individual liability may also be predicated on Section 296(6) of the State HRL, which makes it a discriminatory practice "for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article," as long as the person in question actually participates in the discriminatory conduct. See, e.g., Tomka, 66 F.3d at 1317; Murphy, 674 N.Y.S.2d at 417.
CONCLUSION
For the reasons stated above, the defendants' motion for summary judgment is granted with regard to Lee's claim of unequal pay against all defendants. Summary judgment is denied as to Lee's claim of retaliatory discharge against OSGM under Title VII, Section 1981, and the State and City HRLs, as well as against defendant Miller under Section 1981, and the State and City HRLs. Summary judgment on Lee's retaliation claim is granted as to defendant MOC. A Scheduling Order issued with this Opinion will set forth the further conduct of proceedings in this case.
The propriety of a suit against OSG will be addressed at the next conference with the parties.
SO ORDERED.