Williams v. Regus Management Group, LLC
Filing
52
OPINION AND ORDER: Defendant's motion is denied and the Clerk of the Court is directed to close this motion [Docket No. 29]. The final pre-trial conference scheduled for 12/7/2011, at 4:30 p.m. is adjourned to 12/20/2011 at 4:30 p.m. (Final Pretrial Conference set for 12/20/2011 at 04:30 PM before Judge Shira A. Scheindlin.) (Signed by Judge Shira A. Scheindlin on 12/6/2011) (ft)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------------------------- )(
ALBERT WILLIAMS,
Plaintiff,
OPINION AND ORDER
- against
10 Civ. 8987 (SAS)
REGUS MANAGEMENT GROUP, LLC, :
Defendant.
----------------------------------------------------- )(
SHIRA A. SCHEINDLIN, U.S.D.J.:
I.
INTRODUCTION
Albert Williams brings this action against Regus Management Group,
LLC ("Regus" or the "Company"), alleging race discrimination and retaliation
under the New York City Human Rights Law! ("NYCHRL"). Williams is a citizen
of New York. 2 Regus is a Delaware corporation, with its headquarters and
principal place of business located in Texas. 3 Williams originally filed suit in New
York Supreme Court. Regus removed the matter to this Court under section
N.Y.C. Admin. Code § 8-107(1)(a).
See Declaration of Sharon Edmondson in Support of Notice of
Removal ~ 9 ("Edmondson Removal Decl.").
2
3
See id.
~
10.
-1
1441(b) of title 28 of the United States Code.4 This Court has jurisdiction pursuant
to section 1332(a) of title 28 of the United States Code.
Williams claims that he was discriminated against at Regus and that
when he complained about the discrimination, he was ordered to relocate from
New York City to Dallas. When he refused to relocate, he was fired. Regus moves
for summary judgment on both of Williams’ claims. Regus argues that as part of
business changes and cost-cutting measures, it had long planned to either transfer
Williams to Dallas or fire him. Regus further argues that there is no evidence to
support an inference that Regus discriminated against Williams on the basis of his
race or that it subsequently retaliated against him for reporting his concerns about
racial discrimination at the Company.
According to Regus, a “reasonable implication [of the facts] is that
Plaintiff realized his job was at risk and complained of racial discrimination to
pressure Regus to keep him by raising the specter of litigation.”5 According to
Williams, Regus only decided to order him to relocate after he complained of
discrimination, similarly situated Caucasian employees were not ordered to
4
See Notice of Removal of Civil Action to United States District Court
[Docket No. 1].
5
Regus Management Group LLC’s Memorandum of Points and
Authorities in Support of Its Motion for Summary Judgment (“Def. Mem.”) at 2.
-2-
relocate, and the management’s reaction to his claims of discrimination shows that
Regus’ business justifications were actually pretext for retaliation and
discrimination. Deciding between these two reasonable interpretations of the facts
requires weighing conflicting pieces of evidence and making numerous credibility
determinations – judgments that must be left to a jury. For these reasons, Regus’
motion for summary judgment is denied.
II.
BACKGROUND 6
A.
Williams’ Career with Regus
Williams, who is African-American, has worked in information
technology (“IT”) for over twelve years.7 Regus “provides furnished, equipped
and staffed office space to businesses in over 1100 business centers located in
excess of 450 cities in 75 countries.”8
Regus hired Williams in October 2005 as its Director of IT
6
The following facts are drawn from the Complaint and from the
parties’ Rule 56.1 statements and supporting documentation. The facts are
undisputed unless otherwise noted; where disputed, they are construed in the light
most favorable to the plaintiff. See, e.g., Federal Ins. Co. v. American Home
Assurance Co., 639 F.3d 557, 566 (2d Cir. 2011).
7
See Videotaped Examination Before Trial of Albert Williams
(“Williams Dep.”) 134:21-23.
8
Declaration of Christian David Hadfield in Support of Defendant
Regus Management Group, LLC’s Motion for Summary Judgment (“Hadfield
Decl.”) ¶ 3.
-3-
Operations.9 In this role, he managed “day-to-day operations of the IT department
and . . . the support of over 400 business centers in North America.”10 Williams’
responsibilities “evolved over time but the crux of his position dealt with putting
out IT fires for Regus’s clients and overseeing his technical team.”11 He was
considered to be “great at firefighting”12 and Regus rewarded him with a bonus in
February 2010.13
When he began working for Regus, Williams was based in Dallas,
where the bulk of Regus’s administrative and executive functions are performed,14
and where its IT team is based.15 Williams moved to New York in May 2007 for
9
See Regus Management Group LLC’s Rule 56.1 Statement in Support
of Its Motion for Summary Judgment (“Def. 56.1”) ¶ 1.
10
Williams’ Counterstatement of Material Facts (“Pl. 56.1”) ¶ 22.
11
Def. Mem. at 3.
12
Deposition of Sharon Edmondson, Regus’ Vice-President of Global
Human Resources, (“Edmondson Dep.”) 121:21.
13
See Pl. 56.1 ¶ 25. The bonus was a “spot bonus given to [Williams] as
one of the hand-selected individuals in recognition for his efforts during 2009.”
Edmondson Dep. 83:11-13.
14
See Edmondson Removal Decl. ¶ 3.
15
See Deposition of Christian David Hadfield (“Hadfield Dep.”) 101:3-
5.
-4-
personal reasons, but continued to work for Regus in the same capacity.16
According to Williams, Guillermo Rotman, Regus’ CEO for the Americas,
personally permitted Williams to work from New York and told Williams that “I
don’t care where you work, as long as you don’t leave the company.”17 At the time
of the move, Regus advised Williams that the “relocation would be monitored
closely to determine if it was working.”18 There is testimony that as early as 2008,
Williams’ supervisors may have discussed asking him to return to Texas.19
However, these discussions did not lead to concrete plans for his return. Indeed,
on June 10, 2010, Edmondson told Williams that “everyone agrees that for the
most part you have made [the long-distance arrangement] work quite effectively
over the past year or so.”20 Rotman testified that he did not recall anybody ever
telling him of any problems that arose because Williams was working from New
16
See Williams Dep. 73:4-78:23.
17
Affidavit of Albert Williams (“Williams Aff.”) ¶ 5. Rotman disputes
that he made this statement, but agrees that he permitted Williams to work from
New York as long as the arrangement worked for the company. See Deposition of
Guillermo Rotman (“Rotman Dep.”) 46:10-20.
18
Edmondson Decl. ¶¶ 4, 19. See also 2008 Performance Review, Ex. 9
to Edmondson Decl.
19
See Edmondson Dep. 196:21-24.
20
6/10/10 Email from Edmondson to Williams, Ex. M to Williams Aff.
-5-
York.21
During his first four years as Director of IT Operations, Williams
reported to Jason Schwendinger, a Caucasian with whom Williams says he “had a
positive working relationship.”22 Regus terminated Schwendinger and ten other IT
employees in early 2009 as part of a small wave of layoffs.23 After that, Williams
reported to Schwendinger’s former supervisor, Christian Hadfield, who is also
Caucasian.24 Hadfield, who has worked for Regus since 2004, is responsible for
overseeing all of IT and procurement, and works out of the Company’s Florida
office.25
B.
Regus’ Shifting Business Structure and the Geographic
Distribution of Its Management
As a technology and office services company, Regus “is often
required to restructure its departments in order to adapt to . . . technology changes,
and to save costs,” and the IT Department was one of these departments.26 In
21
See Rotman Dep. 47:2-5.
22
Complaint (“Compl.”) ¶ 6.
23
See Hadfield Decl. ¶ 19.
24
See Compl. ¶ 5.
25
See Rotman Dep. 169:16-22.
26
Def. 56.1 ¶ 14.
-6-
2008, Hadfield, Edmondson, and Rotman began planning to reorganize and pare
down the IT Department in response to the economic crisis.27 As of December
2008, part of Hadfield’s reorganization plan was to terminate Williams and hire
someone in Dallas at a lower salary.28 A January 2009 email from Hadfield
indicated that recruitment for Williams’ replacement had already begun and
proposed that Williams be replaced by May 2009.29 That date shifted by a year,
according to Regus, because Hadfield decided that Williams should stay until the
completion of a large IT project in May or June of 2010.30 In December 2009,
Hadfield produced a new restructuring plan that proposed terminating Williams
and merging his IT Director role with the Telecoms Director role, and giving both
responsibilities to Trish Welker, a white employee who at the time was Telecoms
Director.31 Under the proposal, the new combined IT and telecoms helpdesk would
27
See Declaraton of Christian Hadfield in Support of Defendant Regus
Management Group, LLC’s Reply to Opposition to Motion for Summary Judgment
(“Hadfield Reply Decl.”). ¶ 2.
28
See Hadfield Decl. ¶ 28; Americas Update (Hadfield), PowerPoint
Presentation at 3 (attachment to 12/13/08 Email from Hadfield to Kamal Barakat
(8:52 AM)), Ex. 10 to Hadfield Decl.
29
See 1/30/09 Email from Hadfield to Rotman, Jeff McCall, Barakat,
and Edmondson (11:16 AM), Ex. 11 to Hadfield Decl.
30
See 12/15/09 Email from Hadfield to Rotman, McCall, and
Edmondson (9:38 PM), Ex. 13 to Hadfield Decl.
31
See id.
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be “100% dallas based” (sic).32 Apart from the cost savings and location change,
Hadfield indicated no other reasons for his decision to terminate Williams. Regus
has not submitted any evidence showing that Hadfield’s proposal was approved or
finalized. Indeed, Edmondson says only that Regus “had discussed including
Plaintiff in prior rounds of layoffs and restructuring his position of Director of IT
Ops into a Dallas-based IT Helpdesk Manager position” (emphasis added), but not
that such a decision had been made.33 In fact, Welker did not take over all of
Williams’ responsibilities; instead, a new (white) recruit was hired in Dallas at a
lower salary with the title of manager, rather than director.34
Regus provides temporary and virtual offices to businesses
worldwide, giving its customers the ability to work from remote locations. Remote
and virtual work also appears to be relatively common among Regus’ managers.
For example, Brent Roberts, the Director of IT Sales, lives and works in California,
while his team is based in Dallas;35 Carla Clements, manager of videoconferencing,
32
Id.
33
Edmondson Decl. ¶ 10. See Edmondson Dep. 194:3-6.
34
See Hadfield Dep. 208:22-23; Regus Management Group LLC’s
Memorandum of Points and Authorities in Support of Its Reply to Opposition to
Motion for Summary Judgment at 4.
35
See Pl. 56.1 ¶ 79.
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lives and works in Atlanta;36 Michael Beretta, VP of Business Development, lives
outside of Dallas but manages people located in Dallas;37 and Robert Gaudreau, the
Executive VP of Sales, works out of Connecticut.38 Rotman works out of Florida39
even though “the administrative and executive functions of Regus are performed in
Texas” and “the day-to-day control of the company is exercised in Texas.”40
Rotman testified that “it was decided as a company that we need to
have our executives on the IT department, ok, and our telecom executives in
Dallas.”41 But Hadfield, who was the head of IT and procurement, was never
required to move to Dallas from Florida, even though his team was in Dallas.42
Similarly, Stan Liss, who was Director of IT Projects, worked from Atlanta, and
although there were discussions of moving him to Dallas, he was never required to
do so.43
36
See id. ¶ 81
37
See id. ¶ 78.
38
See id. ¶ 77.
39
See id. ¶ 38.
40
Edmondson Removal Decl. ¶ 3.
41
Rotman Dep. 169:5-7.
42
See id. 169:18-22; 170:23-24.
43
See id. 172: 9-19; Pl. 56.1 ¶ 76.
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C.
The Alleged Discrimination
Williams bases his primary claim of discrimination on his relationship
with Hadfield. Williams states that after he began reporting to Hadfield, “Hadfield
made it clear that he had no interest in working with [Williams] because [Williams
is] African-American.”44 Williams believes that his race made Hadfield view him
“differently than [his] Caucasian counterparts.”45 Furthermore, Williams states
that “Hadfield would ignore [Williams] and fail to appear for bi-weekly calls that
were scheduled.”46 Williams also says that his “opinions on technical matters were
completely dismissed,” despite his experience with Regus.47 When Williams tried
to communicate his concerns, Hadfield “ignored [him] even when [Williams] told
him that [he] felt ignored.”48 Furthermore, Williams “observed that Hadfield
would speak with the Caucasian employees, including employees who had lower
titles than [Williams],” even as he ignored Williams.49 Regus, on the other hand,
maintains that Hadfield communicated as much with Williams as Hadfield’s busy
44
Williams Aff. ¶ 7.
45
Id.
46
Id. ¶ 8.
47
Id. ¶ 9
48
Id.
49
Id. ¶ 8.
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schedule allowed: By Hadfield’s own calculation, he sent Williams hundreds of
emails.50 To the extent that Hadfield cancelled scheduled calls with Williams, he
did so with other employees as well.51
Williams also claims that Hadfield excluded him from decisions about
matters critical to his job. First, Hadfield terminated the position of one of
Williams’ subordinates in January 2010.52 Hadfield did not consult with Williams
before making this decision, notwithstanding that Williams had the most direct
knowledge about the employee’s work.53 Around that time, Regus management
also determined that its United Kingdom vendors could not support Regus’ new
firewall and that the relevant functions should be moved to Regus’ office in the
Philippines.54 This change meant that the Regus Help Desk — with which
Williams worked on a daily basis — would be located in Asia rather than in
Europe. Although coordination with the Help Desk was a major part of Williams’
50
See 3/15/10 Email from Hadfield to Edmondson (4:04 PM), Ex. 3 to
Edmondson Decl.
51
See Hadfield Decl. ¶ 12.
52
See Williams Aff. ¶ 11.
53
See id.; see also Pl. 56.1 ¶ 40, Hadfield Dep. 120:19-121:18. Hadfield
acknowledges that he made the decision without consulting Williams, but claims
that Williams expressed no serious concern when Hadfield told him. Williams’
response was “I understand.” Hadfield Dep. 123:4-5.
54
See Def. Mem. at 5.
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job,55 he did not learn of the location change until well after the decision was
made.56 By contrast, Liss, who also reported to Hadfield, learned of the change
much sooner, even though he spent less time working with the Help Desk.57
Hadfiled testified that Liss was “responsible for providing technical info and
planning the migration from the Centrinet firewall to the Clavister firewall,” but
also acknowledged that Williams had “the responsibility for managing [the
Clavister] center.”58 Rotman testified that he was surprised that Williams had not
been aware that the Help Desk was being moved. 59
In January 2010, Regus terminated fifty-seven employees.60
Williams’ perception of the impact of these layoffs on the Company’s African-
55
See Pl. 56.1 ¶ 59.
56
See id. ¶ 61.
57
See id. ¶¶ 58-61. Regus asserts that it “had no reason to include”
Williams in deciding to move the Help Desk to Manila, whereas Liss, as Director
of IT Projects, needed to be involved in the decision because he would be
coordinating the Help Desk move. Def. Mem. at 15. The parties dispute whether
Liss’ title, Director of IT Projects, was inferior to Williams’ title, Director of IT
Operations. Edmondson testified that although Williams’ title was superior to
Liss’ title, in February 2010 they were essentially “peers” at Regus. Edmondson
Dep. 39:12-19.
58
Hadfield Dep. 173:11-24.
59
Rotman Dep. 144:12-23.
60
See Regus Management Group LLC’s Rule 56.1 Reply Statement in
Further Support of Its Motion for Summary Judgment (“Def. Reply 56.1”) ¶ 46.
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American workforce serves as a second basis for his charge of discrimination.
Williams was concerned about the layoffs “especially in light of how few AfricanAmericans in management positions there are at Regus.”61 He states that in the
January layoffs, “Regus terminated 17 employees in its Corporate division . . . .
[and] [o]f the 17, eight were African-Americans, a number that was vastly
disproportionate to the number of African-Americans in that Division.”62
Regus disputes these numbers, saying that only five out of twenty-six
Corporate division employees who were laid off were African American and that
twelve of the fifty-seven total employees laid off were African-American,63 figures
that compare more closely to its workforce population, which is eighteen percent
African-American.64
D.
Williams’ Complaints of Discrimination and Regus’ Response
Upset by what he saw as the disproportionate impact on Regus’
African-American employees, Williams emailed Rotman on February 25, 2010,
61
Williams Aff. ¶ 13. Williams cites deposition testimony by Rotman
and Edmondson that reveals that, at that time, Regus had only three senior
executives who were African-Americans.
62
Id. ¶ 12.
63
See Def. 56.1 ¶¶ 7, 45.
64
See id. ¶ 8.
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“expressing [his] concerns about the discriminatory nature of the . . . layoffs.”65
Rotman forwarded Williams’ email to Edmondson, Regus’ Vice-President of
Global Human Resources, asserting that the allegations were “nonsense” and
asking her to help him respond.66 Rotman wrote Williams the following morning,
saying that the numbers Williams cited “are not accurate and [his] accusation could
not be further from the truth.”67 Rotman also told Williams that “the results of our
reductions . . . were carefully reviewed by management across multiple ethnic
groups” and that “race is never a determining factor” in layoffs.68 However,
Rotman testified that all of the members of management besides himself who
reviewed the layoffs were Caucasian.69 Rotman, who is from Argentina, describes
65
Williams Aff. ¶¶ 13-15; Def. 56.1 ¶ 6. Williams testified that he did
not address his complaint to the Human Resources Department first because
Rotman had informed him that if Williams had any problem, he should come
directly to him. See Williams Dep. 118:18-24.
66
2/26/10 Email from Rotman to Edmondson (5:26 AM), Ex. 1 to
Declaration of Guillermo Rotman in Support of Defendant Regus Management
Group, LLC’s Reply to Opposition to Motion for Summary Judgment (“Rotman
Decl.”).
67
2/26/10 Email from Rotman to Williams (11:18 AM), Ex. 1 to
Rotman Decl.
68
Id.
69
See Rotman Dep. 29:5-13.
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himself both as “Latin” and as white.70 Rotman acknowledges that he did not
personally review Williams’ figures regarding the racial distribution of layoffs, but
was told by Edmondson that they were incorrect.71
Later that day, Rotman called Williams and, according to Williams,
“started to shout at [him]” and made him “[feel] very threatened . . . , as Rotman
was simply yelling and screaming and saying [the discrimination] never happened .
. . .”72 Williams testified that “[n]ot at one time did [Rotman] say, Hey, Albert,
give me an example of what happened. Immediately: This never happened. This
is impossible. Not at one time did he say, Hey, Albert, tell me what’s
happening.”73 As a result of the conversation, Williams retained counsel.74
Williams testified that after he complained and retained counsel, Hadfield started
to “express[] ‘concerns’ about [Williams’] performance”75 and “found it necessary
to belittle and scream [and] yell” at Williams on multiple telephone calls, even
70
Id.
71
See id. 97:2-14.
72
Williams Aff. ¶ 18. Regus disputes the substance and tenor of the
call. See Def. Reply 56.1 ¶ 52.
73
Williams Dep. 147:15-19.
74
See Williams Aff. ¶ 18.
75
Williams Aff. ¶ 20.
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when they were just talking about technical matters.76
The week after his first complaint, Williams and Edmondson talked
by videoconference and Williams explained his perception that Regus was
discriminating against African-Americans.77 In a follow-up email, Williams
emphasized that he felt personally discriminated against and was not solely
concerned about the racially disproportionate effect he saw in the layoffs.78 In
particular, he told Edmondson that he believed Hadfield was excluding him “from
projects and decisions” and that Hadfield was generally ignoring Williams’
attempts to communicate with him.79
On May 7, 2010, Williams again emailed Rotman, saying that nothing
had changed and that he felt Regus was retaliating against him for his previous
complaints by continuing to make management decisions without consulting him.80
Williams asked Rotman to “[p]lease help” and expressed his belief that his job was
“being siphoned away from [him] and significant portions turned over to
76
Williams Dep. 148:2-24.
77
See Williams Aff. ¶ 19.
78
See 3/8/10 Email from Williams to Edmondson (2:43 PM), Ex. G to
Williams Aff.
79
Def. 56.1 ¶ 10.
80
See 5/7/10 Email from Williams to Rotman (4:34 PM), Ex. I to
Williams Aff.
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Caucasian employees.”81 As before, Rotman forwarded the email to Edmondson,
commenting that “[t]his is nonsense. No one is discriminating against Albert. He
is very wrong.”82 The next day, Edmondson emailed Williams to tell him that he
should schedule a trip to Dallas in order to meet with her and Hadfield “to discuss
[Williams’] concerns, the changes that have occurred and are continuing to occur
within the IT structure in Regus and [Williams’] role in the organization moving
forward.”83
E.
The Dallas Transfer Order and Williams’ Termination
Williams met with Edmondson and Hadfield in Dallas on May 20,
2010.84 At this meeting, Edmondson and Hadfield notified Williams that he would
have to relocate to Dallas.85 From what they told him, Williams believed that
Regus was having him relocate because the “racial discrimination problems [were
being] summed up as communication issues” and the solution the Company saw
for such issues was for Williams to return to Dallas to be with some of the rest of
81
Id. See also Williams Aff. ¶¶ 23-24.
82
5/10/10 Email from Rotman to Edmondson (7:00 AM), Ex. J to
Williams Aff.
83
5/11/10 Email from Edmondson to Williams (4:23 PM), Ex. K to
Williams Aff.
84
See Def. 56.1 ¶ 11.
85
See id.
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the IT Department.86 Additionally, though Edmondson “told [Williams] that the
decision to ask [him] to move back to Dallas was made back in January,” Williams
noted that only after he complained of discrimination did Regus determine that his
transfer was a pressing need.87 The next week, Williams emailed Rotman again,
noting that his transfer to New York had worked well for the Company and
asserting that “this is not a business decision, but rather an effort to get rid of
me.”88 Williams asked that Regus reconsider the decision to relocate him to
Dallas.89
On June 17, 2010, Edmondson emailed Williams to determine
whether he would consider moving to Dallas.90 In his reply, Williams stated that a
Dallas relocation was an “option [he could not] reasonably accept,” due to his
86
Williams Dep. 229:8-11. Edmondson testified that her aim in talking
with Williams about the communication issues was to clarify why she was
notifying Williams of the transfer: though Regus had already decided that he
should go to Dallas, she did not want it to seem that there was “a secret, so to
speak, that was not on the table and visible in the bigger picture.” Edmondson
Dep. 190:18-20.
87
See 5/28/10 Email from Williams to Rotman (11:49 PM), Ex. L to
Williams Aff. (complaining that he was not informed until May 20 of the decision
to transfer him to Dallas).
88
Id.
89
See id.
90
See 6/17/10 Email from Edmondson to Williams (11:49 PM), Ex. 4 to
Edmondson Decl.
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wife’s medical condition, which required her to remain near her doctors in New
York.91 Edmondson then suggested that Williams request leave under the Family
Medical Leave Act because his wife needed care.92 Edmondson also reiterated that
“staying in [his] current position based in New York on an open ended basis is not
an option” and that “[a]t this juncture the only option is moving back to Dallas”
soon or else Regus would need to “explore an exit strategy from the [C]ompany.”93
In August 2010, the attorneys for Williams and Regus met to discuss
settlement possibilities, but these discussions failed.94 Finally, on August 30, 2010,
Edmondson and Williams met in New York, where she informed him about four
non-IT positions for which he could apply.95 Regus asserts that despite being
outside Williams’ area of expertise, one of these positions had “the potential of
91
6/21/10 Email from Williams to Edmondson (2:00 PM), Ex. 5 to
Edmondson Decl.
92
See 6/29/10 Email of Edmondson to Williams (6:03 PM), Ex. 6 to
Edmondson Decl.
93
Id.
94
See Pl. 56.1 ¶¶ 84-85.
95
See Edmondson Decl. ¶ 17; Williams Aff. ¶ 35. See also Current
Openings in the NY Market (As of 8/29/10), Ex. 8 to Edmondson Decl. (listing
positions shown to Williams). The positions were “not offered” to Williams, but
were merely available, so it is not certain that he would have been hired for them
had he chosen to apply, especially since they were outside his area of expertise.
Edmondson Dep. 280:3-15.
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earning more money than [Williams’] current position.”96 Williams does not
address this assertion, but explains that because the positions were “junior” and
were outside of IT, they “would have constituted a setback in [his] career.”97
Williams declined either to apply for the positions or move back to Dallas.
Edmondson testified that she then offered Williams a severance agreement but that,
instead of signing it, Williams “started packing his desk up.”98 Subsequently,
Regus interviewed four candidates to replace Williams in Dallas; neither the
person who was eventually hired, nor any of those interviewed, were AfricanAmerican.99
III.
LEGAL STANDARD
Summary judgment is appropriate “if the movant shows that there is
no genuine dispute as to any material fact and the movant is entitled to judgment as
a matter of law.”100 “‘An issue of fact is genuine if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party. A fact is material
96
Defendant’s Reply to Plaintiff’s Response to 56.1 Statement of
Material Facts (“Def. 56.1 Reply”) ¶ 89; Def. Resp. Mem. at 9.
97
Williams Aff. ¶ 35.
98
Edmondson Dep. 279:23.
99
See Hadfield Dep. 209:14-17.
100
Fed. R. Civ. P. 56(a).
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if it might affect the outcome of the suit under the governing law.’”101
In a summary judgment setting, “[t]he moving party bears the burden
of establishing the absence of any genuine issue of material fact.”102 “When the
burden of proof at trial would fall on the nonmoving party, it ordinarily is
sufficient for the movant to point to a lack of evidence to go to the trier of fact on
an essential element of the nonmovant’s claim.”103 In turn, to defeat a motion for
summary judgment, the non-moving party must raise a genuine issue of material
fact. The non-moving party “‘must do more than simply show that there is some
metaphysical doubt as to the material facts,’”104 and cannot “‘rely on conclusory
allegations or unsubstantiated speculation.’”105
In deciding a motion for summary judgment, a court must “‘construe
the facts in the light most favorable to the non-moving party and must resolve all
101
Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 720 (2d
Cir. 2010) (quoting Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008)).
102
Zalaski v. City of Bridgeport Police Dep’t, 613 F.3d 336, 340 (2d Cir.
2010).
103
Cordiano v. Metacon Gun Club, Inc., 575 F.3d 199, 204 (2d Cir.
2009).
104
Brown v. Eli Lilly & Co., 654 F.3d 347, 358 (2d Cir. 2011) (quoting
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).
105
Id. (quoting Federal Deposit Ins. Corp. v. Great Am. Ins. Co., 607
F.3d 288, 292 (2d Cir. 2010)).
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ambiguities and draw all reasonable inferences against the movant.’”106 However,
“‘[c]redibility determinations, the weighing of the evidence, and the drawing of
legitimate inferences from the facts are jury functions, not those of a judge.’”107
“‘The role of the court is not to resolve disputed issues of fact but to assess
whether there are any factual issues to be tried.’”108
Summary judgment may be proper even in workplace discrimination
cases, which tend to be very fact-intensive, because “‘the salutary purposes of
summary judgment — avoiding protracted, expensive and harassing trials — apply
no less to discrimination cases than to other areas of litigation.’”109 However,
“‘[b]ecause direct evidence of an employer’s discriminatory intent will rarely be
found,’ motions for summary judgment in employment discrimination actions
106
Brod v. Omya, Inc., 653 F.3d 156, 164 (2d Cir. 2011) (quoting
Williams v. R.H. Donnelley Corp., 368 F.3d 123, 126 (2d Cir. 2004)).
107
Kaytor v. Electric Boat Corp., 609 F.3d 537, 545 (2d Cir. 2010)
(quoting Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150 (2000))
(emphasis removed).
108
Brod, 653 F.3d at 164 (quoting Wilson v. Northwest. Mut. Ins. Co.,
625 F.3d 54, 60 (2d Cir. 2010)).
109
Lu v. Chase Inv. Serv. Corp., 412 Fed. App’x 413, 415 (2d Cir. 2011)
(quoting Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000)). Accord
Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001).
-22-
should be evaluated with caution.”110 Nonetheless, a plaintiff bringing a workplace
discrimination claim must make more than conclusory allegations in order to
defeat a motion for summary judgment.111 It is incumbent upon courts to
“carefully distinguish between evidence that allows for a reasonable inference of
discrimination and evidence that gives rise to mere speculation and conjecture.”112
And although “claims under the NYCHRL are ‘more liberally construed than
claims under Title VII and the [New York State Human Rights Law], the
NYCHRL does not alter the kind, quality or nature of evidence that is necessary to
support or defeat a motion for summary judgment under Rule 56.’”113
IV.
NEW YORK CITY HUMAN RIGHTS LAW
110
Gear v. Department of Educ., No. 07 Civ. 11102, 2011 WL 1362093,
at *2 (S.D.N.Y. Mar. 30, 2011) (quoting Schwapp v. Town of Avon, 118 F.3d 106,
110 (2d Cir. 1997)).
111
See id.
112
Bickerstaff v. Vassar Coll., 196 F.3d 435, 448 (2d Cir. 1999)). Accord
Cameron v. Community Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir.
2003) (“‘[P]urely conclusory allegations of discrimination, absent any concrete
particulars,’ are insufficient” to satisfy an employee’s burden on a motion for
summary judgment) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)
(alteration in original)).
113
Ballard v. Children’s Aid Soc’y, 781 F. Supp. 2d 198 (S.D.N.Y. 2011)
(quoting Deshpande v. Medisys Health Network, Inc., No. 07 Civ. 375, 2010 WL
1539745, at *22 (E.D.N.Y. Apr. 16, 2010) (quotation marks omitted)). Accord
Julius v. Department of Human Res. Admin., No. 08 Civ. 3091, 2010 WL 1253163,
at *5 (S.D.N.Y. Mar. 24, 2010).
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Williams brings his discrimination and retaliation claims solely under
the NYCHRL, which provides, in relevant part, that
[i]t shall be an unlawful discriminatory practice . . . [f]or an
employer or an employee or agent thereof, because of the
actual or perceived age, race, creed, color, national origin,
gender, disability, marital status, partnership status, sexual
orientation or alienage or citizenship status of any person, to
refuse to hire or employ or to bar or to discharge from
employment such person or to discriminate against such
person in compensation or in terms, conditions or privileges
of employment.114
Courts previously interpreted the NYCHRL as being coextensive with Title VII
and the New York State Human Rights Law. But by enacting the Local Civil
Rights Restoration Act of 2005 (“Restoration Act”),115 “the New York City
Council . . . rejected such equivalence.”116 The City Council’s passage of the
Restoration Act “confirm[ed] the legislative intent to abolish ‘parallelism’ between
the [NYCHRL] and federal and state anti-discrimination law.”117 The NYCHRL
must be construed “independently from and ‘more liberally than’ [its] federal and
114
N.Y.C. Admin. Code § 8-107(1)(a).
115
N.Y.C. Local Law No. 85 (2005).
116
Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir.
2009). Accord Buckman v. Calyon Sec. (USA) Inc., No. 09 Civ. 6566, 2011 WL
4153429, at *7 (S.D.N.Y. Sept. 13, 2011).
117
Loeffler, 582 F.3d at 278 (quoting Williams v. New York City Hous.
Auth., 872 N.Y.S.2d 27, 31 (1st Dep’t 2009)).
-24-
state counterparts.”118 As a result, although interpretations of similar laws may be
used, they act only as “a floor below which the City’s Human Rights law cannot
fall.”119
Under the Restoration Act, the NYCHRL “explicitly requires an
independent liberal construction analysis in all circumstances, even where state and
federal civil rights laws have comparable language.”120 However, for both
discrimination and retaliation claims under the NYCHRL, courts continue to apply
the three-step, burden-shifting framework that the Supreme Court articulated in
McDonnell Douglas Corp. v. Green.121 The difference is that within that
framework, courts must address the NYCHRL’s “uniquely broad and remedial
purposes, which go beyond those of counterpoint State or federal civil rights
laws.”122 This means that, at least in the retaliation context, “no ‘type of
challenged conduct [may] be categorically rejected as nonactionable’ under the
118
Id.
119
Id.
120
Williams, 872 N.Y.S.2d at 31.
121
411 U.S. 792, 802-03 (1973).
122
Williams, 872 N.Y.S.2d at 31.
-25-
[NYCHRL].”123 However, a plaintiff “must demonstrate ‘by a preponderance of
the evidence that she has been treated less well than other employees’ due to
unlawful discrimination.”124
A.
Discrimination
An employee initially bears the burden of producing evidence
sufficient to support a prima facie case of discrimination.125 However, such
evidence need be no more than “minimal” or “de minimis.”126 In the Title VII
context, the prima facie case consists of a showing that the employee: (1) belongs
to a protected class, (2) was qualified for the position he held, (3) experienced an
adverse employment action, and (4) that the adverse employment action occurred
under circumstances that give rise to an inference of discrimination.127
In the Title VII context, “[e]mployment actions that the Second
Circuit has characterized as ‘sufficiently disadvantageous to constitute an adverse
123
Sealy v. Hertz Corp., 688 F. Supp. 2d 247, 258 (S.D.N.Y. 2009)
(quoting Williams, 872 N.Y.S.2d at 33).
124
Id. (quoting Williams, 872 N.Y.S.2d at 39).
125
See McDonnell Douglas, 411 U.S. at 802. See also Bernard v. J.P.
Morgan Chase Bank, No. 08 Civ. 4784, 2010 WL 423102, at *9,*15 n.6 (S.D.N.Y.
Feb. 5, 2010), aff’d, 408 Fed. App’x 465 (2d Cir. 2011).
126
See, e.g., Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir.
2005).
127
See Ruiz v. County of Rockland, 609 F.3d 486, 491 (2d Cir. 2010).
-26-
employment action include 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.’”128 Material adversity requires “a change in working
conditions . . . more disruptive than a mere inconvenience or an alteration of job
responsibilities.”129 Although lateral transfers frequently are not considered
materially adverse in the Second Circuit, “[a] lateral transfer that does not result in
a reduction in pay or benefits may be an adverse employment action so long as the
transfer alters the terms and conditions of the plaintiff’s employment in a
materially negative way.”130
A number of courts have now held that adverse employment actions
need not be material in order to violate the NYCHRL and that any non-trivial
discriminatory act is actionable. There is no requirement of materiality in the text
of either Title VII or the NYCHRL; it is a judicial interpretation of the statutes.
“‘[T]he City HRL now explicitly requires an independent liberal construction
128
Parrilla v. City of New York, No. 09 Civ. 8314, 2011 WL 611849, at
*8 (S.D.N.Y. Feb. 16, 2011) (quoting Beyer v. County of Nassau, 524 F.3d 160,
163 (2d Cir. 2008)).
129
Id. at *9.
130
Patrolmen’s Benevolent Ass'n of N.Y. v. City of New York, 310 F.3d
43, 51 (2d Cir. 2002).
-27-
analysis in all circumstances, even where State and federal civil rights laws have
comparable language.’”131 Accordingly, in Williams v. The New York City Housing
Authority, the New York Appellate Division, First Department, held that “a focus
on unequal treatment based on gender regardless of whether the conduct is
‘tangible’ (like hiring or firing) or not – is in fact the approach that is most faithful
to the uniquely broad and remedial purposes of the local statute.”132 Because
Williams concerned sexual harassment, and dealt with the impact of the
Restoration Act on the traditional “severe or pervasive” standard in such cases, it
did not address the question of how the Restoration Act affects the definition of an
actionable adverse employment action. Then, in September 2011, Judge Richard
Holwell of this Court interpreted the Act and the First Department’s holding to
mean that an adverse action need not be material in order to violate the City law:
the NYCHRL expands the definition of discrimination
beyond “conduct [that] is ‘tangible’ (like hiring or firing),”
a requirement embodied in the federal requirement that an
action be “materially adverse” to be actionable, to
encompass all allegations that a plaintiff is treated
131
Loeffler, 582 F.3d at 278 (quoting Williams, 872 N.Y.S.2d at 31).
132
Williams, 872 N.Y.S.2d at 39. The Appellate Division made clear,
however, that the new law does not create causes of action for “petty slights and
trivial inconveniences” that are “truly insubstantial.” Id.
-28-
differently based on protected status.133
Even more recently, Judge Nicholas Garaufis of the Eastern District of
New York held that “under the [NYCHRL], the plaintiff need not show that she
was subject to an ‘adverse employment action’; instead, she need only show that
‘she has been treated less well than other employees because of her gender.”134
Thus, although the standard has not yet been clarified by either the
New York Court of Appeals or the Second Circuit, it appears that, in order to make
out the third prong of a prima facie case of discrimination under the NYCHRL, a
plaintiff must simply show that she was treated differently from others in a way
that was more than trivial, insubstantial, or petty. The fourth prong of the prima
facie case is satisfied if a member of a protected class was treated differently than a
worker who was not a member of that protected class.135
Once the plaintiff demonstrates a prima facie case, the burden shifts to
133
Kerman-Mastour v. Financial Indus. Regulatory Auth., — F.Supp.2d
— , 2011 WL 4526080, at *10 (S.D.N.Y. Sept. 30, 2011) (citing Williams, 872
N.Y.S.2d at 340).
134
Zambrano-Lamhaouhi v. New York City Bd. of Educ., No. 08 Civ.
3140, 2011 WL 5856409, at *8 (E.D.N.Y. Nov. 21, 2011) (citing Williams, 872
N.Y.S.2d at 39).
135
See Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381
(2d Cir. 2001) (holding, in Title VII case, that “the mere fact that plaintiff was
replaced by someone outside the protected class” raises the necessary inference of
discrimination for the prima facie case).
-29-
the defendant to articulate a legitimate, nondiscriminatory reason for the
differential treatment.136 The defendant must clearly set forth, through the
introduction of admissible evidence, the reasons for its actions.137 If the
explanation is legitimate and nondiscriminatory, the burden shifts back to the
plaintiff to demonstrate that the defendant’s proffered explanation is merely a
pretext for discrimination.138 Notably, in order to raise an issue of fact that is
sufficiently material to defeat a motion for summary judgment, a plaintiff must
produce not simply some evidence, but enough evidence to support a rational
finding that the defendant’s explanation for the adverse action is actually a pretext
to disguise discrimination.139 “The factfinder’s disbelief of the reasons put forward
by the defendant . . . may, together with the elements of the prima facie case,
suffice to show intentional discrimination.”140 The factfinder may disbelieve the
136
See Ruiz, 609 F. 3d at 492.
137
See Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 255
(1981).
138
See Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004).
See also Beachum v. AWISCO New York, 785 F. Supp. 2d 84, 93-94 (S.D.N.Y.
2011).
139
See Weinstock, 224 F.3d at 42. See also Mavrommatis v. Carey
Limousine Westchester, Inc., No. 10 Civ. 3404, 2011 WL 3903429, at *2 (2d Cir.
Sept. 7, 2011).
140
St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 511 (1993).
-30-
defendant’s explanation either because the facts underlying the explanation are
false or because the explanation is weakened by inconsistencies or logical flaws.141
Therefore, a plaintiff can survive summary judgment if he produces facts sufficient
to permit a reasonable factfinder to disbelieve the defendant’s explanation in favor
of the plaintiff’s explanation that discrimination occurred. The plaintiff can sustain
this burden by proving that “the evidence in plaintiff’s favor, when viewed in the
light most favorable to the plaintiff, is sufficient to sustain a reasonable finding that
[the adverse employment decision] was motivated at least in part by . . .
discrimination.”142
B.
Retaliation
A prima facie case of retaliation under the NYCHRL consists of a
showing by the plaintiff that: (1) he participated in a protected activity known to
the defendant; (2) the employer engaged in some responsive conduct; and (3) there
exists a connection between the two actions, such that “a jury could ‘reasonably
conclude from the evidence that [the complained-of] conduct [by the employer]
was, in the words of the [NYCHRL], reasonably likely to deter a person from
141
See Byrnie v. Town of Cromwell, 243 F. 3d 93 (2d Cir. 2001)
(summary judgment for defendant was improper where the defendant’s stated
reasons for its actions lacked credibility due to inconsistencies); Lex Larson,
Employment Discrimination § 8.05[3].
142
Tomassi v. Insignia Fin. Group, 478 F.3d 111, 114 (2d Cir. 2007).
-31-
engaging in protected activity,’ without taking account of whether the employer’s
conduct was sufficiently deterrent so as to be ‘material[ ].’”143 In the summary
judgment context, once “the plaintiff presents at least a minimal amount of
evidence to support the elements of the claim, the burden of production shifts to
the defendant to proffer a legitimate, non-retaliatory reason for” its actions.144 If
the defendant makes an adequate showing in this step, the plaintiff must
demonstrate that the defendant’s reasons are actually pretextual, which the plaintiff
can do by showing that a “retaliatory motive played a part in the adverse
employment actions even if it was not the sole cause.”145
Whatever uncertainty may exist with regards to the materiality
requirement for adverse employment actions in the discrimination context does not
exist in the retaliation context: the text of the statute is clear that “retaliation . . .
need not result in . . . a materially adverse change in the terms and conditions of
employment” in order to be unlawful.146 The law bars “any manner” of
143
Fincher, 604 F.3d at 723 (quoting Williams, 872 N.Y.S.2d at 34).
144
Kaytor, 609 F.3d at 552-53.
145
Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010). Accord Ibok v.
Securities Indus. Automation Corp., 369 Fed. App’x 210, 213 (2d Cir. 2010).
146
N.Y.C. Admin. Code § 8-107(7) (unlawful retaliation “need not result
in an ultimate action with respect to employment . . . or in a materially adverse
change in the terms and conditions of employment . . . provided, however, that the
retaliatory or discriminatory act or acts complained of must be reasonably likely to
-32-
retaliation.147 The jury must be able to find that the employer took some action
with respect to the employee after the employee’s protected activity, but that action
need not be material, as required in a Title VII action, as long as it is reasonably
likely to deter a person from engaging in protected activity.148 NYCHRL
retaliation claims must “be weighed in a context-specific assessment of whether
conduct had a ‘chilling effect’ on protected activity — a judgment that ‘a jury is
generally best suited to evaluate . . .’”149
V.
DISCUSSION
A.
Discrimination
The core of Williams’ discrimination claim is that Hadfield treated
him differently than white employees. Williams alleges that Hadfield ignored him
deter a person from engaging in protected activity”).
147
Williams, 872 N.Y.S.2d at 34 (quoting N.Y.C. Admin Code. § 8107(7)). Accord Winston v. Verizon Servs. Corp., 633 F. Supp. 2d 42, 48
(S.D.N.Y. 2009).
148
See Fincher, 604 F.3d at 723. Title VII’s prohibition on retaliation
requires a materially adverse action that “could well dissuade a reasonable worker
from making or supporting a charge of discrimination.” Burlington N. & Santa Fe
Ry. Co. v. White, 548 U.S. 53, 57 (2006). Articulating the difference between a
non-material adverse action that is reasonably likely to deter a person from
complaining (NYCHRL) and a material adverse action that could well dissuade a
reasonable person from complaining (Title VII) is a question left for another day.
149
Winston, 633 F. Supp. 2d at 48 (quoting Williams, 872 N.Y.S.2d at
34).
-33-
and excluded him from projects, decisions, and meetings that were critical to his
job while including others in those decisions. Williams also alleges that Regus
prevented him from advancing to more senior positions for which he was qualified,
and gave the jobs instead to less-experienced Caucasians, although he does not
produce evidence showing that he ever applied for and was rejected for a
promotion.150 Finally, Williams alleges that after he made his complaints, he was
required to transfer to Dallas while other IT managers were permitted to remain in
Florida and Atlanta.
There is no dispute over whether Williams satisfies the first two
elements of his prima facie discrimination case: he is a member of a protected class
and he was both qualified for his job and performed it satisfactorily. However,
Regus asserts that the admissible evidence does not permit a reasonable juror to
conclude that Williams experienced an adverse employment action or, if there was
an adverse employment action, that the action resulted from discrimination.151
1.
Adverse Employment Action
Williams alleges that Hadfield ignored his opinion on technical
matters and did not communicate with him in the same way he did with Caucasian
150
See Compl. ¶ 7.
151
See Def. Mem. at 9.
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employees.152 As a general matter, Williams alleges that Hadfield “failed to show
up at scheduled meetings and conference calls,”153 preventing Williams from
obtaining certain information critical to his work. 154 In particular, Williams points
to Hadfield’s failure to include him in any discussions about: (1) the termination of
one of Williams’ subordinates; or (2) an important change in Regus’ Help Desk
location.155 Williams notes that Liss, a white IT employee at a similar level of
management, was consulted on the Help Desk transition, even though working
with the Help Desk constituted a bigger part of Williams’ job than Liss’ job. There
is also evidence showing that in late 2009, Hadfield proposed firing Williams and
giving his responsibilities to Trish Welker, a white woman who managed Telecoms
for the company.156 Although Hadfield testified that his plan had been to combine
telecoms and IT under somebody “that had IT and telecoms experience,” and that
Williams was not qualified because he did not have telecoms experience, he also
152
See Williams Aff. ¶¶ 8-9.
153
Pl. Opp. Mem. at 8.
154
3/15/10 Email from Hadfield to Edmondson (4:04 PM), Ex. 3 to
Edmondson Decl.
155
See Williams Aff. ¶¶ 11, 22.
156
See 12/15/09 Email from Hadfield to Rotman, McCall, and
Edmondson (9:38 PM), Ex. 13 to Hadfield Decl. (explaining that “Trish Welker
will be responsible for the (new) combined IT & Telecoms helpdesk.”).
-35-
testified that he did not know if Welker had any IT experience.157 Hadfield’s plan
was never executed.158
Regus disputes Williams’ claim that he was being ignored by
Hadfield. Regus does not dispute Williams’ assertion that he was excluded from
the decisions to fire his subordinate and move the Help Desk; rather, Regus argues
that there was no need to inform Williams in advance of either decision because
the subordinate’s termination was part of a very fast, high-level process of
downsizing159 and the Help Desk move did not impact Williams’ job.160 Regus
further argues that although Williams held a relatively senior position in the
Company’s hierarchy, he was not so senior, nor his job so central, that he needed to
be privy to all meetings and communications that might be relevant to his work.161
Hadfield’s records contain ample evidence that he was engaged in planning many
medium- and long-term changes within the IT Department; some, but not all of
157
See Hadfield Dep. 56:4-57:24.
158
See id. 57:7.
159
See id. 121:5-25.
160
See id. 172:19-174:15.
161
See Hadfield Reply Decl. ¶ 4.
-36-
them, were expected to affect Williams.162 Regus points out that, on some
occasions, far from excluding Williams from decisions, Hadfield only learned of
the changes shortly before they happened163 or received instructions from his own
superiors to carry out the changes swiftly and confidentially.164
Standing alone, Hadfield’s alleged preferential treatment of Liss and
Welker would probably not rise to the level of a materially adverse employment
action necessary in order to make out a prima facie case in a Title VII case.
However, because such materiality does not appear to be necessary under the
NYCHRL, which prohibits all discrimination that is not merely trivial or petty, this
alleged treatment might well be sufficient to make out a prima facie case under the
local law.
There is, of course, another adverse employment action. Williams
was required to relocate to Dallas and was fired when he refused to do so. In his
opposition memorandum, Williams does not clearly argue that his termination was
the result of discrimination; rather, he argues only that it was the result of unlawful
162
See Hadfield Decl. ¶¶ 8-17; Americas Update (Hadfield), PowerPoint
Presentation (attachment to 12/13/08 Email from Hadfield to Barakat (8:52 AM)),
Ex. 10 to Hadfield Decl.
163
See Hadfield Reply Decl. ¶ 3.
164
See Hadfield Dep. 121:5-13.
-37-
retaliation.165 However, in his Complaint, Williams describes his August 30, 2010
termination and then incorporates this recitation into his cause of action for race
discrimination.166 Therefore, despite the lack of clarity in Williams’ opposition
papers, I will assume that Williams has alleged that he was terminated as a result of
unlawful discrimination based on his race.
Regus’ directive that Williams either relocate to Dallas or separate
from the Company is undoubtedly an adverse employment action. In the Second
Circuit, under Title VII, lateral transfers sometimes do and sometimes do not
constitute adverse employment actions.167 The fundamental question, under Title
VII, is whether the transfer alters the terms and conditions of the plaintiff’s
employment in a materially negative way. Under the NYCHRL, however, the
question is likely whether the transfer represented unequal, non-trivial treatment.
Williams requested and received a transfer to New York in 2007 because his then-
165
Compare Pl. Mem. at 6-8 (discussing the adverse employment actions
that Williams alleges constituted discrimination, but not mentioning Regus’
demand that he transfer to Dallas or its decision to terminate him when he refused
to do so) with id. at 14-16 (discussing the adverse employment actions that
Williams alleges constituted retaliation, focusing primarily on the Dallas transfer
and his termination).
166
See Compl. ¶¶ 28, 33-42.
167
Compare Patrolmen's Benevolent Ass’n of N.Y., 310 F.3d 43 with
Galabya v. New York City Bd. of Educ., 202 F.3d 636 (2d Cir. 2000) (abrogated on
other grounds).
-38-
fiancé could not find work in Dallas and had an established career in New York;
the transfer was authorized by Rotman.168 Requiring that an employee permanently
relocate from New York to Dallas, after he has specifically insisted on a transfer to
New York for important personal reasons, constitutes a change in the terms and
conditions of his employment sufficient to satisfy the NYCHRL. Regus was well
aware of Williams’ strong preference to live in New York with his wife, and
forcing him to move back to Dallas would clearly impact him in an adverse way.
2.
Inference of Discrimination
Williams has submitted sufficient evidence to satisfy the fourth prong
of the prima facie case. It is undisputed that Williams is a member of a protected
class who was replaced by a Caucasian employee.169 Williams also points to
evidence that Hadfield advocated promoting Welker rather than him, despite no
clear evidence that she was more qualified. And Williams claims that there were
no African-Americans in senior management at Regus.170 The fact that Williams’
replacement was not in a protected class alone provides the requisite inference of
168
See Pl. 56.1 ¶ 30; Rotman Dep. 46:2-20.
169
See Pl. 56.1 ¶ 90.
170
See Pl. Opp. Mem. at 9-10; Williams Aff. ¶10.
-39-
discrimination.171 Because Williams has satisfied the requirements for his prima
facie case, the burden shifts to Regus to provide non-discriminatory reasons for its
conduct.
3.
Regus’ Business Justifications
Regus has asserted legitimate business justifications for its decision to
transfer Williams to Dallas. Extensive restructuring of the IT team occurred
between 2007 and 2010 and the elimination or restructuring of Williams’ position
had been discussed for a number of years.172 Hadfield explained in his deposition
that Regus “was moving all [Regional Service Center] department heads to Dallas.
[Williams] and his team are part of the RSC. . . . The need to have somebody like
Albert in Dallas increased” because Regus was building-up the RSC.173 Because
the IT Department was based in Dallas, Regus could reasonably determine that
Williams had to be there with his team.174
Regus’ statements are legitimate, business-related explanations for
171
See Zimmermann, 251 F.3d at 381. See also Pleener v. New York City
Bd. of Educ., 311 Fed. App’x 479, 481 (2d Cir. 2009); Beachum, 785 F. Supp. 2d
at 96.
172
See Def. Mem. at 6-7.
173
Hadfield Dep.112:24-113:8. See also Hadfield Decl. ¶ 5.
174
See Hadfield Dep. 112:23-113:11 (detailing Regus’ reasons for
requiring Williams to be in Dallas).
-40-
requiring that Williams relocate to Dallas. As a result, the burden shifts to
Williams to demonstrate that these explanations are merely a pretext for
discrimination against him.
4.
Evidence of Pretext
Williams has identified problems with each one of Regus’
justifications for his transfer. First, although Regus now argues that Williams’
relocation was part of a general restructuring of the IT department,175 neither Liss
(the Director of IT Projects) nor Hadfield (the head of the IT Department) were
told to move to Dallas from their permanent locations in Atlanta and Florida,
respectively.176 Rotman testified that Williams was required to relocate to Dallas
because the company needed to have its IT and telecom executives in Dallas,
without explaining why that need would not apply to Liss or Hadfield, the white IT
executives.177 Furthermore, “both Rotman and Hadfield specifically testified that
175
See Def. Mem. at 6.
176
See Rotman Dep. 172:9-173:3, 169:16-22. Regus argues that Liss
was hired to work in Atlanta and there was no business need to have him in Dallas.
See Def. Reply 56.1 ¶ 76. Although that evidence may well support the
Company’s argument that the disparate treatment was not based on race, it does not
answer the charge definitively, particularly since Regus did seriously consider
requiring that Liss move to Dallas but decided not to do so. See Rotman Dep. 172173.
177
See Rotman Dep. 169:5-23.
-41-
Williams’ relocation . . . was not part of a restructuring,” which contradicts Regus’
argument.178 Second, although Edmondson and Hadfield initially told Williams
that the transfer was necessary because of “communication problems,”179 Regus
offers no evidence that anyone at the Company raised concerns about
communication issues before Williams lodged his complaints in May 2010.180
Furthermore, Hadfield acknowledged that he never had a problem getting in touch
with or meeting with Williams.181 Third, although Regus asserts that Williams was
ordered to transfer because “conditions no longer permit[ed] him to continue
working in New York”182 the Company provides no explanation for why this
arrangement was no longer feasible. Hadfield testified that there was no specific
event that made it clear to him that Williams needed to be in Dallas other than “it
was the right thing for [Williams] to be in Dallas with his team.”183 It is undisputed
178
Pl. Opp. Mem. at 20 (citing Hadfield Dep. 100:20-23 and 101:10-13;
Rotman Dep. 158:4-16).
179
Id. at 18; Edmondson Dep. 208:18-209:11.
180
If the problems Williams complained of were really due to
“communication issues” between him and Hadfield, they would not be
significantly fixed by a move to Dallas, because Hadfield worked in Regus’
Florida office. See Edmondson Dep. 209:24-210:2.
181
See Hadfield Dep. 114:12-17.
182
Def. Mem. at 17.
183
Hadfield Dep. 101:14-23.
-42-
that many members of Regus’ management – including IT management – worked
from locations around the country, supervising subordinates located elsewhere.184
Regus has not explained why, with respect to Williams – and, apparently, Williams
alone – this arrangement suddenly ceased to be satisfactory. As Williams points
out, he received generally good performance reviews and bonuses.185 Indeed,
Rotman testified that “there was (sic) discussions many times about making
[Williams] the head of the IT department” and said that Williams was “a clear
candidate to be a head of IT.”186 Although at various times there had been
discussions about firing Williams or moving him to Dallas, Edmondson
acknowledges that the decision to do so was never made with finality until after
Williams complained of discrimination.187 Finally, although Regus presents
evidence purporting to demonstrate that the major reason for its original plan to
terminate Williams was to cut costs,188 the Company offered him the opportunity to
184
See supra Part II.B.
185
See Pl. 56.1 ¶ 25; 2008 Performance Review – Corporate, Ex. 9 to
Edmondson Decl.
186
Rotman Dep. 67:2-10.
187
See Edmondson Dep. 194:3-6.
188
See, e.g., Def. Rep. Mem. at 6, 10; Americas Update (Hadfield); Def.
56.1 ¶ 17; PowerPoint Presentation (attachment to 12/13/08 Email from Hadfield
to Barakat (8:52 AM)), Ex. 10 to Hadfield Decl (noting salary savings).
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relocate to Dallas at the same salary he was then earning in New York.189
Williams has provided sufficient evidence to permit a reasonable juror
to conclude that his transfer was motivated in part by discrimination. Williams has
identified serious problems with all of Regus’ justifications for his transfer and has
also produced evidence that would permit a factfinder to determine that
discrimination was a reason for his treatment.190 First, Liss and Hadfield, the white
IT managers, were treated differently than Williams and were permitted to
continue working outside Dallas. Second, Williams was replaced by a white
employee and Regus did not interview any African Americans for the position.
Williams need not prove that all of Regus’ justifications are false, that those
justifications were unrelated to his termination, or that discrimination was the only
reason for his firing. Nor need he show that in the absence of discrimination, he
would not have been fired. In order to establish liability, he must show only that
discrimination played a role in his termination.191
189
See Edmondson Decl. ¶ 10.
190
See Beachum, 785 F. Supp. 2d at 98. “‘A reason cannot be proved to
be a pretext for discrimination unless it is shown both that the reason was false and
that discrimination was the real reason.’” Id. at 97 (quoting St. Mary’s Honor Ctr. ,
509 U.S. at 515).
191
See N.Y.C. Admin. Code § 8-101, making clear that the policy of the
City is to “prevent discrimination from playing any role in actions relating to
employment. . .” (emphasis added). See also Weiss v. JPMorgan Chase & Co.,
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The role of the court in deciding a motion for summary judgment ‘is
not to resolve disputed issues of fact but to assess whether there are any factual
issues to be tried.’”192 In order to determine why Regus required Williams to
relocate to Dallas, it will be necessary to weigh the conflicting evidence presented
by the parties and evaluate the credibility of Hadfield, Williams, and the other
Regus employees. Those are tasks for a jury at trial, not the Court on summary
judgment.
B.
Retaliation
Williams’ retaliation claim is based primarily on Regus’ order that he
move to Dallas, which came soon after he reported his concerns about racial
discrimination, and his eventual termination when he refused to transfer. Williams
also argues that Hadfield’s failure to inform Williams of the decision to move the
Help Desk constituted retaliation. Regus justifies its actions on the ground that
they constituted ordinary business decisions unrelated to Williams’ complaints and
that the Company had planned to terminate Williams and replace him with
No. 06 Civ. 4402, 2010 WL 114248, at *1 (S.D.N.Y. Jan. 13, 2010), explaining
that “the NYCHRL requires only that a plaintiff prove that age was ‘a motivating
factor’ for an adverse employment action,” not a ‘but-for’ cause of the
discrimination.
192
Wilson, 625 F.3d at 60 (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d
9, 11 (2d Cir. 1986)).
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someone in Dallas far in advance of his protected activities.
1.
Prima Facie Case
Williams’ complaints about discrimination were clearly protected
activities, and Regus certainly knew of them.193 Williams emailed Rotman and
Edmondson on multiple occasions, complaining clearly and specifically about
discrimination.194 It is also plain that Regus’ order constituted an adverse
employment action.195 Causation, the final element of the prima facie case, is
established because Regus ordered Williams to relocate just thirteen days after his
May 7 complaint.196 Such a close temporal connection provides a strong basis for
inferring a causal connection between the protected activity and the adverse
employment action.197 Therefore, Williams has established a prima facie case of
193
See 2/26/10 Email from Rotman to Williams (11:18 AM), Ex. E to
Williams Aff.; 5/10/10 Email from Rotman to Edmondson (7:00 AM), Ex. J to
Williams Aff.
194
See id.
195
See supra Part V.A.1.
196
Williams emailed Rotman about his concerns on May 7, 2010. See Pl.
56.1 ¶ 62. Hadfield and Edmondson told him of the Dallas transfer on May 20,
2010. See id. at ¶ 66.
197
See Treglia v. Town of Manlius, 313 F.3d 713, 720-21 (2d Cir. 2002)
(holding that where plaintiff engaged in multiple protected activities, and an
adverse action occurred one month after the most recent protected activity, the
temporal connection was close enough to give rise to an inference of causation).
See also Kaytor, 609 F.3d at 552 (holding, in Title VII context, that “[c]lose
-46-
retaliation, and the burden shifts to Regus to provide a legitimate reason for the
adverse employment action.
2.
Regus’ Business Reasons for Its Conduct
As explained above, Regus has provided legitimate business
justifications for ordering Williams to transfer to Dallas.198 The burden thus shifts
to Williams to demonstrate that this showing is merely a pretext for impermissible
retaliation.
3.
Evidence of Pretext
In arguing that Regus’ business justifications are pretextual, Williams
relies primarily on the temporal connection between his complaints and the transfer
order199 and the inconsistencies and contradictions in Regus’ business justifications
that are discussed above.200 In addition, Williams testified that after his
complaints, Hadfield started to belittle him and scream at him during telephone
conversations and Rotman yelled at him about his allegations without ever asking
temporal proximity between the plaintiff’s protected action and the employer’s
adverse employment action may in itself be sufficient to establish the requisite
causal connection between a protected activity and retaliatory action.”).
198
See supra Part V.A.3.
199
See Pl. Opp. Mem. at 20.
200
See supra Part V.A.4.
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why Williams believed he was the victim of discrimination.201 As evidence that
Rotman gave short shrift to Williams’ complaints, Williams points to Rotman’s
testimony that he does not believe that complaints of discrimination at Regus can
be true, because he does not permit discrimination.202 Rotman and Hadfield
dispute Williams’ characterization of their conversations. But a reasonable juror
could find that Hadfield and Rotman’s reactions lend support to Williams’
retaliation claim.
Standing alone, even a close temporal connection between a
complaint of discrimination and an adverse employment action is insufficient to
establish evidence of pretext under Title VII.203 (It is unclear whether sufficiently
close temporal proximity, standing alone, would be sufficient under the
NYCHRL). However, the inconsistencies in the various explanations offered by
Regus for transferring Williams to Dallas and the evidence that Rotman and
201
See supra Part II.D.
202
See Rotman Dep. 83:13-19 (A: I don’t allow any kind of
discrimination at all in the company. Q: So if anybody were to present a complaint
of discrimination, it would be nonsense because you don’t allow discrimination?
A: Correct.”).
203
See El Sayed v. Hilton Hotels Corp., 627 F.3d 931 (2d Cir. 2010). See
also Tsaganea v. City Univ. of New York, Baruch Coll., 10 Civ. 2322, 2011 WL
4036101 (2d Cir. Sept. 13, 2011); Aka v. Jacob K. Javits Convention Ctr. of New
York, No. 09 Civ. 8195, 2011 WL 4549610 (S.D.N.Y. Sept. 30, 2011).
-48-
Hadfield responded to Williams’ allegations by yelling at him, combined with the
temporal proximity between his complaints and the transfer order, create a material
dispute as to whether Regus’ actions were merely a pretext for impermissible
retaliation against Williams for his protected activities. Under the liberal
provisions of the NYCHRL, this dispute is sufficient to withstand summary
judgment.204
The parties have presented dramatically different versions of these
events. According to Regus, Williams realized that he might be laid off and
complained of racial discrimination in order to protect himself. He was later
ordered to relocate to Dallas as part of a long-planned restructuring and fired when
he refused to do so. According to Williams, after raising legitimate concerns about
the unlawful discrimination that he had witnessed and suffered, his managers made
him an offer that they knew he would not accept, and he was forced out of his
position. These conflicting versions require resolution by a jury.
VI.
CONCLUSION
For the foregoing reasons, defendant’s motion is denied and the Clerk
of the Court is directed to close this motion [Docket No. 29]. The final pre-trial
conference scheduled for December 7, 2011, at 4:30 p.m. is adjourned to
204
See Ibok, 369 Fed. App’x at 214.
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December 20,2011 at 4:30 p.m.
Dated:
New York, New York
December 6, 2011
-50
-AppearancesFor Plaintiff:
Brian Heller, Esq.
Schwartz & Perry
295 Madison Avenue
New York, NY 10017
(212) 889-6565
For Defendant:
Dave Carothers, Esq.
Carlton, DiSante & Freudenberger LLP
4510 Executive Drive, Suite 300
San Diego, CA 92121
(858) 646-0007
Michael V. Cibella, Esq.
Law Offices of Michael V. Cibella, LLC
546 Fifth Avenue
New York, NY 10036
(212) 818-1880
-51-
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