Grewal v. Cuneo et al

Filing 226

OPINION AND ORDER re: 191 MOTION for Summary Judgment of Defendants. filed by Cuneo Gilbert & LaDuca LLP, 221 LETTER MOTION for Oral Argument addressed to Judge Ronnie Abrams from Cuneo, Gilbert & LaDuca, LLP dated Se ptember 29, 2016. filed by Cuneo Gilbert & LaDuca LLP, 220 MOTION to Strike plaintiff's reply briefs, supporting declarations, and rule 56.1 statements. filed by Cuneo Gilbert & LaDuca LLP. Plaintiff Preetpal Grewal brings th is action against her former employer, Cuneo Gilbert & LaDuca LLP ("COL"), asserting claims for breach of contract, breach of the implied covenant of good faith and fair dealing, and hostile work environment on the basis of her national origin. Before the Court are the parties' cross-motions for summary judgment and CGL's motion to strike Grewal's reply briefs and other reply submissions. (As further set forth in this Order.) For the reasons set forth above, Grewal&# 039;s motion for summary judgment is denied; CGL's motion for summary judgment is granted in part and denied in part; and CGL's motion to strike is denied. CGL's motion for oral argument is denied. The Clerk of Court is respectfully directed to close the motions pending at Docket Nos. 191, 195, 220, and 221. A conference is hereby scheduled for April 13, 2017 at 2:00 p.m. in Courtroom 1506 at the United States Courthouse, 40 Foley Square, New York, New York 10007. (Status Conference set for 4/13/2017 at 02:00 PM in Courtroom 1506, 40 Centre Street, New York, NY 10007 before Judge Ronnie Abrams.) (Signed by Judge Ronnie Abrams on 3/31/2017) (cf) (Main Document 226 replaced on 3/31/2017) (arc).

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

USDC-SDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#:
DATE FILED: 03/31/2017

PREETPAL GREWAL,
Plaintiff,

No. 13-CV-6836 (RA)

v.

OPINION AND ORDER

CUNEO GILBERT & LADUCA LLP,
Defendant.

RONNIE ABRAMS, United States District Judge:
Plaintiff Preetpal Grewal brings this action against her former employer, Cuneo Gilbert &
LaDuca LLP (“CGL”), asserting claims for breach of contract, breach of the implied covenant of
good faith and fair dealing, and hostile work environment on the basis of her national origin.
Before the Court are the parties’ cross-motions for summary judgment and CGL’s motion to strike
Grewal’s reply briefs and other reply submissions. For the reasons set forth below, Grewal’s
motion for summary judgment is denied, CGL’s motion for summary judgment is granted in part
and denied in part, and CGL’s motion to strike is denied.
BACKGROUND1

These facts are drawn from the parties’ submissions in connection with their respective motions
for summary judgment, including Plaintiff’s Rule 56.1 Statement (“Pl. 56.1”) (Dkt. 195), Defendant’s
Response to Plaintiff’s Rule 56.1 Statement (“Def. Resp. to Pl. 56.1”) (Dkt. 216), Defendant’s Rule 56.1
Statement (“Def. 56.1”) (Dkt. 193-1), Plaintiff’s Motion for Summary Judgment and accompanying
exhibits (“Pl. MSJ”) (Dkt. 195), Defendant’s Memorandum of Law in Support of Motion for Summary
Judgment and accompanying exhibits (“Def. MSJ”) (Dkt. 192), Defendant’s Response in Opposition to
Plaintiff’s Motion for Summary Judgment and accompanying exhibits (“Def. Opp.”) (Dkt. 214), and the
Declaration of Jonathan W. Cuneo in Support of Defendant’s Motion for Summary Judgment (“Cuneo
Decl.”) (Dkt. 215), as well as exhibits accompanying Plaintiff’s Second Amended Complaint (“SAC”) (Dkt.
44). Where facts stated in a party’s Rule 56.1 statement are supported by testimonial or documentary
evidence, and denied by a conclusory statement by the other party without citation to conflicting testimonial
or documentary evidence, the Court finds such facts to be true. See S.D.N.Y. Local Rule 56.1(c)–(d).
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A. Grewal’s Employment Agreement
Preetpal Grewal, who was born in India, is an attorney licensed to practice law in India and
New York. See Pl. 56.1 ¶ 2. CGL is a law firm based in Washington, D.C. Def. 56.1 ¶ 1.
On June 17, 2008, Jonathan W. Cuneo, a partner at CGL, e-mailed Grewal to offer her a
position at CGL. See Pl. 56.1 ¶ 10; Def. 56.1 ¶ 1; Pl. MSJ Ex. 6. Grewal responded that evening,
expressing enthusiasm and seeking further information about her potential role at the firm. See Pl.
56.1 ¶¶ 10–11; Pl. MSJ Ex. 6. Cuneo responded the next day, clarifying several terms of the offer.
See Pl. 56.1 ¶¶ 12–14; Pl. MSJ Ex. 6. Among other things, Cuneo’s response explained that “[a]ll
our employees are legally employees at will.” Pl. MSJ Ex. 6; see also Def. 56.1 ¶ 44. In response
to Grewal’s question as to whether she would receive “a bonus based on the number of hours
worked,” Cuneo stated, “The ‘bonus’ is an entitlement (so not really a bonus) based on your
relative value of contribution to a case (based on lodestar) when and if, and only if, we get paid.”
Pl. MSJ Ex. 6.

In response to Grewal’s questions regarding whether she would “be

permitted/expected to develop clients for the firm” and the extent to which “client development
activities” would be compensated, Cuneo responded:
You would be compensated for this activity hourly, plus 10 percent of the work you
originate plus twelve percent of your lodestar contribution. For example, on
immigration you brought in and did exclusively you would get 22 percent, plus $60
per hour.
Pl. MSJ Ex. 6; see Pl. 56.1 ¶ 13. On June 18, 2008, Grewal accepted Cuneo’s offer. See Pl. 56.1
¶ 15; Pl. MSJ Ex. 6.
B. Grewal’s Work at CGL
On June 30, 2008, Grewal joined CGL. Pl. 56.1 ¶ 17. As discussed below, Grewal claims
that she was denied lodestar or origination compensation for her work on several matters during
her time at the firm.
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1. In re Air Cargo
Soon after joining CGL, Grewal began working on In re Air Cargo Shipping Services
Litigation, a global antitrust action brought against approximately thirty airlines for allegedly
fixing the prices of fuel and other surcharges. Grewal claims that she attempted to identify
international clients as potential claimants in this dispute. See Pl. 56.1 ¶ 23; Pl. MSJ Ex. 16
(“Cuneo Dep. Tr.”) at 20:8–18; Cuneo Decl. ¶ 7. To that end, Grewal made at least three trips to
India, where she signed retainer agreements with approximately forty businesses. See Pl. 56.1
¶¶ 26, 28–29; Pl. MSJ Exs. 9, 17. According to Cuneo, however, CGL decided not to pursue
claims on behalf of these businesses because “Grewal had asked to avoid further trips to India”
and, as a result, “CGL could not effectively handle the claims.” Cuneo Decl. ¶ 10(d). Cuneo
claims that “CGL has not received any fees in connection with cases related to clients located in
[India].” Cuneo Decl. ¶ 22; see also Def. Resp. to Pl. 56.1 ¶¶ 23, 28–29.
In connection with the Air Cargo litigation, Grewal claims that she performed document
review work that resulted in fees to CGL. See Pl. 56.1 ¶¶ 49–50. Grewal claims that she “brought”
this work to the firm after she “signed the international retainers” and spoke to Brian Ratner, a
partner at Hausfeld LLP, “about getting some work to the firm.” Id. ¶¶ 49–50. On May 3, 2011,
CGL submitted a fee application in In re Air Cargo Shipping Services Antitrust Litigation (No. 16MD-1775), a multidistrict litigation in the United States District Court for the Eastern District of
New York, requesting $723,393.75 in lodestar compensation and $66,918.21 in unreimbursed
expenses. See SAC Ex. 3; Pl. 56.1 ¶ 50. The application indicates that Grewal worked 444 hours
on the matter, for a lodestar total of $154,840. SAC Ex. 3. Grewal claims that she is entitled to
origination compensation for this work. See Pl. 56.1 ¶ 50. CGL disagrees, arguing that the firm
“obtained that work because Cuneo had a long-standing friendship and professional relationship

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with Michael Hausfeld . . . and had referred a client to Hausfeld’s firm.” Def. Resp. to Pl. 56.1
¶ 50.
2. In re Automotive Parts Antitrust Litigation
Grewal next claims that she originated several cases brought against automotive parts
manufacturers. See Pl. 56.1 ¶¶ 41, 47. On or about September 28, 2010, Grewal circulated a
memorandum, which relied on news articles of investigations by antitrust authorities in the United
States and Europe, discussing possible claims against manufacturers for fixing the prices of
automotive electrical distribution systems, sometimes known as “wire harness” products. See Pl.
56.1 ¶ 41; Pl. MSJ Ex. 31. In subsequent e-mails to Cuneo, Grewal proposed several potential
plaintiffs, including one business located in India. See Pl. MSJ Ex. 32. According to CGL,
however, Grewal “failed to obtain a client to serve as a plaintiff.” Def. Resp. to Pl. 56.1 ¶ 41.
On October 11, 2011, approximately one year after Grewal circulated the memorandum on
potential claims related to the wire harness price-fixing, Grewal e-mailed Cuneo asking him to
confirm “that if someone brings an idea for a case to the table, and such a case is filed, one is
entitled to 10 percent of the attorneys[’] fees.” Pl. MSJ Ex. 31; see Pl. 56.1 ¶ 42. Cuneo
immediately forwarded Grewal’s e-mail to CGL’s other principals, Charles LaDuca and Pamela
Gilbert, with the message, “Clearly relates to wire harness.” Pl. MSJ Ex. 31.
Grewal claims that CGL thereafter brought actions against automotive parts manufacturers
“on the very theory” she proposed. Pl. 56.1 ¶ 43. On October 27, 2011, for example, one of
Grewal’s colleagues e-mailed Cuneo and others indicating that CGL had “just filed a wire harness
complaint” on behalf of Martens Cars of Washington in the United States District Court for the
District of Columbia. See Pl. MSJ Ex. 32. According to an internal memorandum dated April 6,
2012, CGL hosted an all-day meeting with counsel in “the wire harness case” on April 2, 2012.

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See Def. MSJ Ex. 4. This memorandum indicates that, in a conversation with Cuneo following
the meeting, Grewal became “heated” and “began to cry,” in part because she “felt that she had
been excluded from the Wire Harness case,” which, in her view, she “had brought” to the firm. Id.
The memorandum explains that, in response, Cuneo told Grewal that she “had been awarded 5
percent of the fee.” Id.; see also id. (“I told her . . . she had gotten a 5% credit on wire harness and
she was welcome to work on it.”).
In addition to the wire harness case, CGL ultimately filed more than thirty separate actions
on behalf of franchised auto dealers for fixing the prices of various automotive parts. See Def.
56.1 ¶ 48; Def. Resp. to Pl. 56.1 ¶ 43. At least some of these actions were consolidated as In re
Automotive Parts Antitrust Litigation and transferred to the United States District Court for the
Eastern District of Michigan. See Pl. MSJ Exs. 33–34. On December 7, 2015, the district court
awarded the auto dealers in this action $18,500,168 in attorneys’ fees, to be paid on a pro rata basis
from settlement funds available for each settlement before the court, $1,661,945.95 in past
litigation expenses, and $2,947,395 in future litigation expenses. See Pl. MSJ Ex. 34; Pl. 56.1
¶ 46.
Grewal claims that she originated the automotive parts cases but received no origination
compensation. See Pl. 56.1 ¶¶ 41, 47. CGL responds that Grewal was not entitled to origination
credit for any of these cases because she did not obtain a client to serve as a plaintiff. See Def.
Resp. to Pl. 56.1 ¶¶ 43–46. According to Cuneo, “Grewal was not responsible for originating those
cases because she was never retained by any auto dealer, a prerequisite to qualify for origination
pay.” Cuneo Decl. ¶ 20.

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3. Mortgage Modification Cases
Grewal next claims that she worked on several “mortgage cases,” which appear to be
actions filed against banks for illegally modifying mortgages. See Pl. 56.1 ¶¶ 51–58.2 As part of
her work on these cases, Grewal claims that she also “originated” the “trial payment plan,” which
she describes as a standardized form given to mortgagors to modify their mortgages. Pl. 56.1 ¶ 51;
see also Pl. MSJ Exs. 36, 38. With respect to one of the mortgage cases, Grewal claims that a
district court awarded CGL attorneys’ fees and that she “has not received her percentages.” Pl.
56.1 ¶ 58; see Pl. MSJ Ex. 41. CGL agrees that Grewal “worked on various aspects of the
mortgage cases” but denies that Grewal brought these cases to the firm. See Def. Resp. to Pl. 56.1
¶¶ 53–54. CGL asserts that Grewal is not entitled to any origination compensation for her work
because she did not obtain clients to serve as plaintiffs. See id. ¶¶ 51, 53–54. CGL further claims
that the mortgage modification cases “did not generate any fee awards or yielded awards too small
to pay compensation to any . . . attorneys who worked on that litigation.” Def. 56.1 ¶ 50; see also
id. ¶ 51.
4. Sony Optical Disk Drive Case
Grewal next asserts that she “originated” the “Sony Optical Disk Drive case.” Pl. 56.1
¶ 48. In support of this claim, Grewal points to a September 8, 2010 e-mail she sent to Barbara
Darne, in which Grewal states that “[t]he Sony Optical case has been filed in CA.” Pl. MSJ Ex.
35. CGL denies that “the firm ever filed such a case against Sony.” Def. Resp. to Pl. 56.1 ¶ 48.
Cuneo’s declaration states that “CGL had little, if any, internal discussion of this case,” and
“Grewal did not draft a complaint and procure a client to serve as a plaintiff.” Cuneo Decl. ¶ 10(e).

Grewal specifically identifies two “mortgage cases” on which she worked: (1) In re JPMorgan
Chase Mortgage Modification Litigation, No. 11-MD-2290 (D. Mass.), and (2) Beals v. Bank of America,
N.A., No. 2:10-CV-5427 (D.N.J.). See Pl. 56.1 ¶¶ 56, 59–60; see also Pl. MSJ Exs. 41, 43, 44.
2

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5. Servicemembers Class Action
Grewal claims that she also drafted a class action complaint on behalf of several
servicemembers, alleging violations of the Servicemembers Civil Relief Act. Pl. 56.1 ¶ 61; Pl.
MSJ Ex. 45. Grewal claims that she was told that CGL would not pursue this claim. Pl. 56.1 ¶
62. CGL responds that it did not pursue claims on behalf of servicemembers after determining
that these claims were not well-suited for class action litigation. See Def. Resp. to Pl. 56.1 ¶ 62;
see also Cuneo Decl. ¶ 10(b).
6. Shaw Laminate Case
Grewal next claims that she proposed bringing a products liability case against Shaw
Industries, Inc., a manufacturer of laminate flooring. See Pl. 56.1 ¶¶ 63–65; Pl. MSJ Ex. 46.
Grewal prepared a memorandum on possible claims that could be asserted against Shaw Industries
and drafted a proposed complaint. See Pl. 56.1 ¶ 63; Pl. MSJ Ex. 46. CGL did not pursue this
case because, according to Cuneo, the firm “did not believe the case was strong enough on the
merits.” Cuneo Decl. ¶ 10(a); see also Def. Resp. to Pl. 56.1 ¶¶ 64–65.
7. Hip Replacement Cases
Grewal asserts that she “brought to the firm” product defect cases against various
manufacturers of hip replacement systems. Pl. 56.1 ¶ 66; Pl. MSJ Ex. 48. Grewal explains that
LaDuca advised her that claims of this type could only be brought as individual actions, rather than
as class actions. Pl. 56.1 ¶ 66.
8. Overdraft Fee Cases
Finally, Grewal claims that she “originated” cases against financial institutions for
charging excessive overdraft fees. Pl. 56.1 ¶¶ 67–69. Grewal supports this claim by noting that
she and another CGL attorney, Matthew Weiner, had several phone conversations about the

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possibility of bringing such claims. See id. ¶ 67. Grewal claims that, after she left the firm, CGL
served as interim co-lead counsel in consolidated litigation against HSBC Bank USA, N.A., which
challenged HSBC’s overdraft practices and policies. See Pl. 56.1 ¶ 68. CGL denies that Grewal
originated any case related to overdraft fees against HSBC. See Def. Resp. to Pl. 56.1 ¶ 67–68.
Cuneo’s declaration indicates that the firm did not participate in litigation against HSBC until
“long after Grewal had left” the firm and did not pursue the legal theory Grewal had proposed.
Cuneo Decl. ¶ 18.
C. Statements Regarding Grewal’s National Origin
Grewal claims that she was “harass[ed]” on the basis of her national origin while working
at CGL. See Pl. 56.1 ¶¶ 73, 83. Grewal identifies two instances in which she claims to have
experienced such harassment. The first occurred at an internal litigation meeting in the summer
of 2011. Pl. 56.1 ¶ 73; Def. 56.1 ¶ 8. At this meeting, Grewal asserts that Cuneo remarked that
“we don’t take this girl seriously,” “we just treat her as a foreigner,” and “we should be ashamed
of ourselves.” Pl. 56.1 ¶ 73; see also Grewal Dep. Tr. at 54:7. At his deposition, Cuneo testified
that he “remember[ed] saying words that were like that.” Cuneo Dep. Tr. at 63:20–21. Cuneo
testified, however, that he made these statements shortly after a meeting with attorneys from other
firms, at which Grewal had made a “very good” point that was “not taken seriously enough” by a
“group of largely white males.” Cuneo Dep. Tr. at 67:21–68:2; see also Def. 56.1 ¶¶ 7–8. Cuneo
explained that he was “appalled” by the conduct of the other attorneys, and related this experience
to members of his own firm to explain that “racism, sexism, nativism, are not dead in America,
and it’s something that even among educated people, we have to combat, period.” Cuneo Dep. Tr.
at 68:4–10. Thus, Cuneo testified, “I said those words . . . to identify with [Grewal] and to express
solidarity with [her].” Id. at 64:2–4; see also id. at 64:21–65:8.

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Following Cuneo’s comments at the firm meeting, Grewal sent Cuneo an e-mail thanking
him “for all the wonderful things [he] said at the meeting today.” Def. MSJ Ex. 19; see also Def.
56.1 ¶ 9. Asked why she thanked Cuneo, Grewal testified at her deposition that she wanted to
“acknowledge, you know, that they had done something good for me,” Grewal Dep. Tr. at 55:25–
56:2, and that “they said something nice in that meeting for me, and it really felt good,” id. at
56:33–23. Grewal further testified that Cuneo’s statement “acknowledged that he should take me
seriously, which is a big thing for me,” and “acknowledged that I have ability.” Id. at 57:5–10.
Several other CGL employees provided testimony regarding Cuneo’s statements at the
meeting. Pamela Gilbert, for example, testified that she recalled Cuneo “wanting to use something
that occurred with [Grewal] . . . in a meeting with other attorneys as a teachable moment for all of
us to sit back and take stock of how professionals, and particularly professional lawyers, can
sometimes mistreat people and not take people seriously just based on either their gender or their
age or their nationality.” Pl. MSJ Ex. 57 (“Gilbert Dep. Tr.”) at 44:7–16. Gilbert further testified
that Cuneo was “outraged” and “livid,” finding it “shameful” that, even though Grewal had done
“a great job” and “brought up very good points in the meeting,” her arguments “weren’t being
taken seriously.” Id. at 45:6–17. LaDuca similarly testified that Cuneo, who was “one of
[Grewal’s] biggest cheerleaders and supporters,” was “really upset and protecting [Grewal] and
supportive of [her].” LaDuca Dep. Tr. at 21:20–22:7.
The second incident of alleged harassment occurred while Grewal was meeting with Cuneo
and Wiener. Grewal testified that she told Cuneo, “sometimes I feel I am treated as a foreigner.”
Grewal Dep. Tr. at 68:10–11. Grewal testified that Wiener then “told [Cuneo] not to say anything.”
Id. at 68:19–21. Grewal further testified that, during this conversation, Cuneo told her that “we
don’t understand your accent.” Id. at 52:7–8. At his deposition, Wiener testified that he did not

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recall this incident. See Def. 56.1 ¶ 11.
D. Grewal’s Departure
By early 2012, Grewal’s relationships with CGL’s partners had begun to sour. Cuneo and
other CGL partners criticized Grewal for missing deadlines and failing to submit time records. See
Def. 56.1 ¶ 53; Def. MSJ Exs. 28, 40. Most damaging to Grewal’s status at CGL, however, was
her alleged decision to provide legal assistance to a pro se litigant in an action in the Eastern
District of New York. See Def. 56.1 ¶ 27; Def. MSJ Ex. 5 (“Ross Decl.”) ¶ 9. On May 4, 2012,
the pro se litigant telephoned LaDuca, claiming that Grewal “had been secretly representing her
for a year.” Def. 56.1 ¶ 31. On May 8, 2012, the litigant filed an emergency order to show cause
in her case, alleging that Grewal had engaged in “ghostwriting” pleadings and asking the court to
order CGL to withdraw from representation. See Ross Decl. ¶¶ 2, 7. CGL retained an outside
attorney, who notified the court in that action that CGL had not authorized Grewal to represent the
litigant and that CGL’s principals—Cuneo, Gilbert, and LaDuca—were not advised that Grewal
was providing any informal advice to the litigant. See Def. 56.1 ¶¶ 32–34; Def. MSJ Ex. 3
(“Gilbert Decl.”) ¶ 6; Ross Decl. ¶¶ 3, 15. CGL claims that it was “concerned about the ethical
implications and potential liability” arising from Grewal’s assistance. Def. 56.1 ¶ 32; see Gilbert
Decl. ¶ 6. In May 2012, Grewal left the firm. See Gilbert Decl. ¶ 7.
E. Procedural History
On September 25, 2013, Grewal initiated this action against CGL, Cuneo, LaDuca, Gilbert
and other individual defendants. Dkt. 1. On December 20, 2013, Grewal filed her Second
Amended Complaint (“SAC”), in which she asserted thirteen causes of action. See SAC ¶¶ 140–
238. On July 7, 2015, the Court dismissed all claims against the individual defendants and all but
three claims against CGL. See Opinion & Order (Dkt. 98). The surviving claims against CGL are

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for (1) breach of contract, (2) breach of the implied covenant of good faith and fair dealing, and
(3) hostile work environment under the New York State Human Rights Law and the New York
City Human Rights Law.

See id.

On July 21, 2015, CGL filed an answer and asserted

counterclaims for breach of contract, breach of loyalty and fiduciary duty, and declaratory
judgment. See Answer (Dkt. 99), Counterclaim (Dkt. 100). On January 25, 2016, the Court
dismissed CGL’s counterclaims. See Opinion & Order (Dkt. 141).
On July 22, 2016, CGL moved for summary judgment. Dkt. 191. On July 25, 2016,
Grewal cross-moved for summary judgment. Dkt. 195. CGL filed a response to Grewal’s motion
on August 30, 2016, Dkt. 214, and a reply in further support of its motion on September 9, 2016,
Dkt. 218. On September 16, 2016, Grewal submitted, under seal, an opposition to CGL’s motion
for summary judgment and a reply in further support of her own.
LEGAL STANDARD
To prevail on a motion for summary judgment, the movant must show “that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a). “An issue of fact is genuine and material if the evidence is such that a
reasonable jury could return a verdict for the nonmoving party.” Cross Commerce Media, Inc. v.
Collective, Inc., 841 F.3d 155, 162 (2d Cir. 2016). “The movant bears the burden of demonstrating
the absence of a question of material fact.” Chaparro v. Kowalchyn, No. 15-CV-1996 (PAE),
2017 WL 666113, at *3 (S.D.N.Y. Feb. 17, 2017). “When a motion for summary judgment is
properly supported by documents or other evidentiary materials, the party opposing summary
judgment may not merely rest on the allegations or denials of his pleading; rather his response, by
affidavits or otherwise as provided in the Rule, must set forth ‘specific facts’ demonstrating that
there is ‘a genuine issue for trial.’” Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009) (quoting

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Fed. R. Civ. P. 56(e)); see also Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). In determining
whether to grant summary judgment, the Court must “constru[e] the evidence in the light most
favorable to the non-moving party and draw[] all reasonable inferences in its favor.” Mitchell v.
City of New York, 841 F.3d 72, 77 (2d Cir. 2016) (quoting Costello v. City of Burlington, 632 F.3d
41, 45 (2d Cir. 2011)).
DISCUSSION
A. Breach of Contract
Grewal first claims that CGL breached her employment agreement. The Court finds that
genuine disputes of material fact preclude summary judgment to either party on this claim.
“Under New York state law, a breach of contract claim must allege: (i) the formation of a
contract between the parties; (ii) performance by the plaintiff; (iii) failure of defendant to perform;
and (iv) damages.” Orchard Hill Master Fund Ltd. v. SBA Commc’ns Corp., 830 F.3d 152, 156
(2d Cir. 2016) (internal quotation marks omitted).3 “Summary judgment is generally proper in a
contract dispute only if the language of the contract is wholly unambiguous.” Compagnie
Financiere de CIC et de L’Union Europeenne v. Merrill Lynch, Pierce, Fenner & Smith Inc., 232
F.3d 153, 157 (2d Cir. 2000); see also JA Apparel Corp. v. Abboud, 568 F.3d 390, 397 (2d Cir.
2009) (“[T]he meaning of the ambiguous contract is a question of fact for the factfinder.”).
“Whether or not a writing is ambiguous is a question of law to be resolved by the courts.” Orlander
v. Staples, Inc., 802 F.3d 289, 294 (2d Cir. 2015) (citation omitted).
“In interpreting a contract under New York law, words and phrases should be given their
plain meaning, and the contract should be construed so as to give full meaning and effect to all of
its provisions.” Portfolio Process Am., Inc. v. Cynergy Holdings, LLC, 839 F.3d 125, 133 (2d Cir.
The parties do not dispute that New York law applies to Grewal’s claims for breach of contract
and breach of the implied covenant of good faith and fair dealing.
3

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2016) (alteration omitted) (internal quotation marks omitted). “A contract is ambiguous under
New York law if its terms could suggest more than one meaning when viewed objectively by a
reasonably intelligent person who has examined the context of the entire integrated agreement and
who is cognizant of the customs, practices, usages and terminology as generally understood in the
particular trade or business.” Orchard Hill, 830 F.3d at 156–57. By contrast, a contract term is
unambiguous if “it has a definite and precise meaning, unattended by danger of misconception in
the purport of the contract itself, and concerning which there is no reasonable basis for a difference
of opinion.” Orlander, 802 F.3d at 294–95 (internal quotation marks omitted).
“To the extent the moving party’s case hinges on ambiguous contract language, summary
judgment may be granted only if the ambiguities may be resolved through extrinsic evidence that
is itself capable of only one interpretation, or where there is no extrinsic evidence that would
support a resolution of these ambiguities in favor of the nonmoving party’s case.” Topps Co. v.
Cadbury Stani S.A.I.C., 526 F.3d 63, 68 (2d Cir. 2008); see also Eastman Kodak Co. v. Ricoh Co.,
Ltd., No. 13-CV-3109 (DLC), 2013 WL 4044896, at *7 (S.D.N.Y. Aug. 9, 2013) (“A court may
resolve the ambiguity as a matter of law only where there is no extrinsic evidence to support one
party’s interpretation of the ambiguous language or if the extrinsic evidence is so one-sided that
no reasonable factfinder could decide contrary to one party’s interpretation.” (internal quotation
marks omitted)).
Grewal’s June 2008 e-mail exchange with Cuneo constitutes a binding employment
agreement. See Def. Resp. to Pl. 56.1 ¶¶ 10–15; Pl. MSJ Ex. 6; see generally Rubinstein v. Clark
& Green, Inc., 395 F. App’x 786, 788 (2d Cir. 2010) (summary order) (“[A]n exchange of emails
may constitute a binding contract under New York law.”); Naldi v. Grunberg, 908 N.Y.S.2d 639,
640 (1st Dep’t 2010); Stevens v. Publicis, S.A., 854 N.Y.S.2d 690, 692 (1st Dep’t 2008). Pursuant

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to this agreement, Grewal is an “employee[] at will” who “would be compensated for [client
development] activity hourly, plus 10 percent of the work [she] originate[s] plus twelve percent of
[her] lodestar contribution.” Pl. MSJ Ex. 6.4 The parties’ dispute here centers on the meaning of
the term “originate.” CGL argues that origination necessarily involves “procur[ing] clients to
initiate cases which generate[] fees for CGL.” Def. Opp. Mem. at 9. CGL also asserts that the
firm “does not pay its attorneys compensation in addition to their annual salaries for contributing
ideas for use in connection with existing cases.” Def. 56.1 ¶ 49. Grewal does not propose an
alternative definition but gives the term a broader construction—encompassing, for example, the
proposal of potential claims to other members of the firm.
The Court finds that the term “originate” is ambiguous. The agreement does not define the
term, and the parties do not argue that the agreement incorporated any other document—such as
an employee handbook—that might shed light on its meaning. To be sure, the context of the term
in Grewal’s e-mail exchange with Cuneo is somewhat helpful. Cuneo explained that Grewal
would receive origination compensation in response to the question, “[t]o what extent if any would
client development activities be compensated?” Id. This context suggests that origination is tied,
at least in part, to “client development activities.” Cuneo’s example of origination compensation
is also somewhat illuminating: by explaining that Grewal would receive origination compensation
for a case she “brought in,” Cuneo suggested that “originate” and “bring in” are roughly

“Under New York’s employment-at-will doctrine, an employer has a nearly unfettered right to
discharge an employee.” Jones v. Dunkirk Radiator Corp., 21 F.3d 18, 21 (2d Cir. 1994). However, “an
employer’s virtually unfettered power to terminate an at-will employee does not negate its duty to abide by
promises made prior to termination.” Parker v. Columbia Pictures Indus., 204 F.3d 326, 339 (2d Cir.
2000); see also Broyles v. J.P. Morgan Chase & Co., No. 08-CV-3391 (WHP), 2010 WL 815123, at *3
(S.D.N.Y. Mar. 8, 2010) (“[R]eference to an employment at will policy does not bar the Offer Letter from
operating as a valid contract.”). Thus, although Grewal’s status as an employee-at-will may have provided
CGL broad discretion to terminate her employment, Grewal may maintain a breach of contract action for
CGL’s failure to abide by terms in her employment agreement—including its promise to award origination
compensation.
4

14

synonymous in this agreement. Id. In addition, Cuneo’s statement that a “bonus” award based on
the hours an employee works, which is distinct from origination compensation, would be paid
“when and if, and only if, we get paid” suggests that all non-salary compensation, including
origination compensation, is awarded when and only when CGL receives fees. Id. Viewing the
term “originate” in the context of the entire agreement, therefore, helps narrow the term’s meaning.
Even with this context in mind, however, the Court cannot conclude that the term
“originate” has a “definite and precise” meaning. Most relevant to this dispute, the agreement
does not identify those activities that constitute origination. For example, it is unclear whether
origination compensation is only available when an attorney initiates business with a new client,
or whether it may also be awarded in the context of a new matter for an existing client, or
whether—as Grewal suggests—it may be awarded for identifying a potential claim and bringing
it to the attention of other members of the firm.

The agreement also fails to specify whether

origination compensation may be given to multiple attorneys for their work for a single client.
The timing of origination compensation is similarly unclear: the agreement does not indicate
whether the firm must actually receive payment, as is the case for the “bonus” based on the hours
an employee works on a case, rather than simply bill a client or receive a fee award from a court,
to award origination compensation.5
Adding to the ambiguity of the term “originate” is the fact that within the legal profession—

CGL’s memorandum of law asserts that Grewal’s e-mail exchange with Cuneo is not an
enforceable agreement because it did not contain certain “terms,” such as “the criterion to be used to
determine the amount of credit Grewal would receive for cases brought to CGL.” See Def. Mem. at 15.
The absence of such a “criterion,” however, demonstrates the ambiguity of this agreement, not the absence
of an agreement. CGL has not disputed that the requirements for contract formation—offer, acceptance,
and consideration—have been satisfied here. See Def. 56.1 ¶ 44 (“A series of emails sent and received by
Grewal in June 2008 show that she was offered and accepted a position at CGL . . . .”). Accordingly, CGL
has not raised a triable issue regarding the enforceability of this agreement, and its discussion of the missing
“terms” in the agreement only reinforces the Court’s conclusion that the agreement is ambiguous.
5

15

the “particular trade or business” in which this agreement arises—the term has no fixed meaning.
Orchard Hill, 830 F.3d at 157. As most lawyers know, the meaning of “origination” varies from
firm to firm—indeed, the term’s flexibility is a common source of confusion or disagreement
within law practices. See, e.g., James D. Cotterman, Recognizing Origination, Compensation &
Benefits for L. Off., Mar. 2010, at 1 (“Possibly the most often asked about issue regarding law
firm partner compensation [concerns] origination.”); Joel A. Rose, Determining Partner
Compensation: Identifying and Defining Criteria, N.Y. St. B.J., Oct. 2015, at 26, 27 (describing
“several types of origination credit”); Joan C. Williams & Veta Richardson, New Millennium,
Same Glass Ceiling? The Impact of Law Firm Compensation Systems on Women, 62 Hastings L.J.
597, 633 (2011) (noting that many attorneys “did not know how origination credit works at their
firms, which, given the complexity of some firms’ systems and the ambiguities in the way
origination credit is defined, probably is not surprising”). Thus, in this case, the Court cannot draw
a more precise definition of the term “originate” by looking to the customs or practices in the legal
profession.
In concluding that the term “originate” is ambiguous, the Court is also guided by cases
addressing contract ambiguity in the related context of disputes over sales commissions. In that
context, courts applying New York law have routinely found that summary judgment on breach of
contract claims is not appropriate where the parties dispute the meaning of “origination” or the
terms of commission compensation. In Apple Mortgage Corp. v. Barenblatt, 162 F. Supp. 3d 270
(S.D.N.Y. 2016), for example, Judge Koeltl found that there were genuine disputes of fact as to
the method of awarding commissions to mortgage loan originators, where the compensation
agreements “do not specify when the commission is earned, indicating only that it ‘will be based
on 50% of the loan amount.’” Id. at 290. Likewise, in Yudell v. Ann Israel & Associates, Inc., 669

16

N.Y.S.2d 580 (1st Dep’t 1998), the First Department held that an employment agreement
providing that an at-will employee was entitled to a percentage “of all fees actually received by us
in cash from placements which are clearly identified as originated by you” was ambiguous because
“[t]he words ‘placements . . . originated by you’ do not, by themselves, specify when or how the
placement must be completed for plaintiff to become entitled to a commission.” Id. at 580–81.
Similarly here, because Grewal’s employment agreement simply invokes the term “originate” and
provides a percentage, the requirements for earning origination compensation are ambiguous.
The Court is unable to resolve this ambiguity through extrinsic evidence. CGL’s evidence
in support of its interpretation of “originate” consists mainly of declarations and testimony from
its partners. Cuneo’s declaration, for example, states that “[a]n attorney at CGL generally qualifies
for origination compensation only by obtaining a viable client, drafting a complaint, and
commencing litigation.” Cuneo Decl. ¶ 17. Other testimony and declarations appear to respond
to Grewal’s conception of the term; for example, Cuneo testified in his deposition that “lawyers
are expected to do their work on a day-to-day basis and don’t get credit for initiated issues.” Cuneo
Dep. Tr. at 45:7–12.

Gilbert’s declaration similarly states that “[a]ll the firm’s attorneys

understand” that “CGL does not pay its attorneys compensation in addition to their annual salaries
for contributing ideas for use in connection with existing cases.” Gilbert Decl. ¶ 9.
While CGL’s evidence supports its view that the term “originate” has a fairly fixed
meaning, at least some extrinsic evidence suggests that, in practice, the term may be applied more
broadly, at least in the context of Grewal’s employment agreement. In particular, the record
contains evidence indicating that CGL decided that Grewal was eligible for origination
compensation for her work in the wire harness antitrust litigation—even though there is no real
dispute that Grewal did not “obtain[] a viable client, draft[] a complaint, and commenc[e]

17

litigation” in that case. Cuneo Decl. ¶ 17. Rather, as the parties appear to agree, Grewal’s work
in the wire harness litigation consisted mainly of preparing a memorandum on the opportunity and
sharing it with her colleagues at CGL. See Pl. 56.1 ¶ 41; Pl. MSJ Ex. 31. Nonetheless, an internal
memorandum dated April 6, 2012 states that Grewal “had been awarded 5 percent of the fee” in
the case. See Def. MSJ Ex. 4. CGL’s decision to award Grewal origination compensation in the
wire harness case appears inconsistent with its definition of the term—suggesting that, at least with
respect to Grewal, the meaning of the term “originate” is not what CGL claims it to be. Thus,
because the evidence in this case is not itself capable of only one interpretation and does not
uniformly support CGL’s interpretation, the Court cannot resolve the ambiguity of the term
“originate” through extrinsic evidence. See Topps, 526 F.3d at 68; see also Salesky v. David Peyser
Sportswear, Inc., No. 94-CV-9036 (JSM), 1996 WL 262985, at *3 (S.D.N.Y. May 17, 1996)
(denying summary judgment in dispute over sales commission based on evidence that, “despite
the language” in an employment agreement, the firm “had a practice” of paying commissions for
certain sales “that the salesperson did not originate”).
Because the meaning of the term “originate” is genuinely disputed, the extent to which
Grewal is entitled to origination compensation for her work at CGL may not be decided on
summary judgment. The Court need not, therefore, address Grewal’s performance in each of the
many cases on which she worked at CGL.
Even if the Court were to adopt CGL’s definition of “originate,” summary judgment would
nonetheless be inappropriate, for even under CGL’s definition, there is a genuine dispute as to
whether Grewal was entitled to origination compensation for her work in the Air Cargo litigation.
See Pl. 56.1 ¶¶ 49–50. In support of her claim that she originated this work, Grewal claims that,
after she “signed the international retainers,” she spoke to Brian Ratner, a partner at Hausfeld LLP,

18

“about getting some work to the firm.” Id. ¶ 49. Grewal claims that she thereafter “brought to the
firm document review work” in connection with the Air Cargo litigation. Id. ¶ 50.
Viewing the evidence in the light most favorable to Grewal and drawing all inferences in
her favor, the Court concludes that a reasonable juror could find that she originated at least some
of CGL’s work in the Air Cargo litigation. First, CGL’s billing records for the Air Cargo matter
indicate that, as Grewal claims, she made several trips to India, where she met with dozens of
prospective clients for the purpose of obtaining them as plaintiffs or claimants in the Air Cargo
dispute. See Pl. MSJ Ex. 9. Second, Grewal signed retainer agreements with approximately forty
businesses located in India, in which CGL agreed to “pursue legal claims” on behalf on of these
businesses to recover damages arising from the alleged price-fixing scheme. See Pl. MSJ Ex. 17.
Third, CGL’s billing records indicate that Grewal billed time for several telephone calls and
meetings with Ratner in 2008 and 2009 in connection with the Air Cargo litigation. See Pl. MSJ
Ex. 9. Fourth, at least some of these Air Cargo billing records note that Grewal and Ratner
discussed Grewal’s “trip to India.” Id. Fifth, CGL and Ratner’s law firm, Cohen Milstein Hausfeld
& Toll, LLP, signed a “Responsibility and Fee Sharing Agreement,” in which the two firms agreed
to split fees in connection with certain disputes and agreed that Grewal “will be managing client
contacts” and will “be the first point of contact and guidance.” Pl. MSJ Ex. 11. On the basis of
this evidence, a fact-finder could reasonably infer that Grewal originated billable work in the Air
Cargo litigation through her marketing efforts in India and her coordination with Ratner.
The evidence also permits a reasonable fact-finder to conclude that CGL received fees for
its work, including work performed by Grewal. For example, Grewal has pointed to CGL’s May
3, 2011 application for attorneys’ fees in the Air Cargo multidistrict litigation, in which CGL
requested $723,393.75 in lodestar compensation and $66,918.21 in unreimbursed expenses. See

19

SAC Ex. 3. The application states that Grewal worked 444 hours on the matter. See id. The
application also indicates that, as the parties appear to agree, the majority of this work involved
document review, labeled in the application as “Discovery from Defendants and Third Parties.”
See id. Viewed in the light most favorable to Grewal, this evidence suggests that Grewal’s efforts
to secure work in the Air Cargo litigation resulted in fees to CGL.
However, it is entirely possible, as CGL argues, that Grewal is not entitled to origination
compensation for this work. The record leaves several questions about her work on this matter
unanswered. For starters, the identity of CGL’s client in the Air Cargo matter is unclear: the fee
application was submitted on behalf of “Plaintiffs Counsel.” See SAC Ex. 3. It is thus unclear
whether CGL represented a client with whom Grewal signed a retainer agreement, or a client of
Ratner’s who was referred to Grewal, or an existing CGL client with whom Grewal had no
meaningful contact. To the extent that CGL secured this work as a referral from Ratner or others
at his firm, it is also unclear whether the reference resulted from the efforts of Grewal or from, as
CGL argues, Cuneo’s “long-standing personal and professional relationship” with another partner
at Ratner’s firm. Cuneo Decl. ¶ 21. Finally, because the record contains only CGL’s fee
application, rather than a fee award, it is not clear whether CGL was actually compensated for the
work it performed. At trial, these questions may be resolved. At this stage, however, the evidence
demonstrates at least a genuine dispute as to whether Grewal is entitled to origination
compensation for her work in the Air Cargo litigation.
In sum, the Court concludes that genuine disputes of material fact preclude granting either
party summary judgment on Grewal’s claim for breach of contract.6

6

CGL also argues that Grewal is barred from obtaining equitable relief, as a matter of law, under
the doctrine of unclean hands. Def. Opp. at 21–22. The Court disagrees. “The doctrine of unclean hands
applies when the complaining party shows that the offending party is guilty of immoral, unconscionable
conduct and even then only when the conduct relied on is directly related to the subject matter in litigation

20

B. Breach of the Implied Covenant of Good Faith and Fair Dealing
Grewal next claims that CGL breached an implied covenant of good faith and fair dealing
in her employment agreement. This claim fails as a matter of law.
In general, a contract contains an implied covenant of good faith and fair dealing under
New York law. See Sec. Plans, Inc. v. CUNA Mut. Ins. Soc., 769 F.3d 807, 817 (2d Cir. 2014).
However, “well-settled New York law holds that no implied covenant of good faith and fair dealing
attaches to at-will employment contracts.” Nunez v. A-T Fin. Info. Inc., 957 F. Supp. 438, 443
(S.D.N.Y. 1997) (collecting cases); see also, e.g., Campeggi v. Arche Inc., No. 15-CV-1097
(PGG), 2016 WL 4939539, at *6 (S.D.N.Y. Sept. 14, 2016) (“Plaintiff’s at-will employment status
. . . is fatal to . . . her claim for breach of the implied covenant of good faith and fair dealing.”); De
Petris v. Union Settlement Ass’n, Inc., 657 N.E.2d 269, 271 (N.Y. 1995) (“This State neither
recognizes a tort of wrongful discharge nor requires good faith in an at-will employment
relationship.”). “The basis for this rule is that an obligation to abide by an implied covenant of
good faith and fair dealing would be inconsistent with the employer’s unfettered right to terminate
an at-will employee.” Nunez, 957 F. Supp. at 438. Here, there is no dispute that Grewal was an
at-will employee.7 Accordingly, she cannot maintain a claim for breach of the implied duty of
good faith and fair dealing. See id.

and the party seeking to invoke the doctrine was injured by such conduct.” TufAmerica, Inc. v. Codigo
Music LLC, 162 F. Supp. 3d 295, 328 (S.D.N.Y. 2016) (citation omitted). To the extent that CGL seeks to
assert an unclean hands defense, the question of whether Grewal’s conduct, in representing a pro se client
or otherwise, is “immoral” or “unconscionable” is a question of fact that may not be resolved on summary
judgment. See id.
7
Grewal’s Second Amended Complaint asserted that she was a partner at CGL. In ruling on
Defendants’ motion to dismiss, however, the Court concluded that Grewal “has not properly alleged that
she was a CGL partner.” Opinion & Order at 17 (Dkt. 98). Grewal does not explicitly challenge that ruling
here.

21

C. Hostile Work Environment
Finally, Grewal asserts hostile work environment claims under the New York State Human
Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”). The Court
concludes that CGL is entitled to summary judgment on these claims.
1. New York State Human Rights Law
To establish a hostile work environment claim under the NYSHRL, as under Title VII, “a
plaintiff must show that ‘the workplace is permeated with discriminatory intimidation, ridicule,
and insult that is sufficiently severe or pervasive to alter the conditions of the victim’s employment
and create an abusive working environment.’” Littlejohn v. City of N.Y., 795 F.3d 297, 320–21
(2d Cir. 2015) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993)).8 “This standard has
both objective and subjective components: the conduct complained of must be severe or pervasive
enough that a reasonable person would find it hostile or abusive, and the victim must subjectively
perceive the work environment to be abusive.” Id. at 321. “As a general rule, incidents must be
more than ‘episodic’; they must be sufficiently continuous and concerted in order to be deemed
pervasive.” Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir. 2015) (citation omitted). Thus, “a plaintiff
alleging a hostile work environment ‘must demonstrate either that a single incident was
extraordinarily severe, or that a series of incidents were sufficiently continuous and concerted to
have altered the conditions of her working environment.’” Alfano v. Costello, 294 F.3d 365, 374
(2d Cir. 2002) (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)). Finally,
“[i]t is axiomatic that the plaintiff also must show that the hostile conduct occurred because of a
protected characteristic.” Tolbert, 790 F.3d at 439.

“Claims under the New York Human Rights Law are generally governed by the same standards
as federal claims under Title VII.” Turley v. ISG Lackawanna, Inc., 774 F.3d 140, 151 n.6 (2d Cir. 2014)
(internal quotation marks omitted).
8

22

Grewal identifies two specific incidents in which she claims she experienced “harassment”
on the basis of her national origin. Pl. 56.1 ¶ 83. First, at a litigation meeting in the summer of
2011, Grewal claims that Cuneo stated “we don’t take this girl seriously,” “we just treat her as a
foreigner,” and “we should be ashamed of ourselves.” Pl. 56.1 ¶ 73; Grewal Dep. Tr. at 54:7.
There is no dispute that Cuneo made these or similar statements. Second, Grewal claims that,
during a conversation with Cuneo and Matthew Weiner, another CGL attorney, she told Cuneo,
“sometimes I feel I am treated as a foreigner,” and that Cuneo responded, at some point during this
conversation, “we don’t understand your accent.” Grewal Dep. Tr. at 52:7–8. The parties dispute
whether this incident occurred: Weiner testified that he did not recall any such conversation. See
Weiner Dep. Tr. at 40:12–14. Viewed in the light most favorable to Grewal, this evidence is not
sufficient to support a claim for hostile work environment under the NYSHRL.
Cuneo’s statements at the 2011 litigation meeting do not support a hostile work
environment claim under the NYSHRL because there is no dispute that these statements reflected
no “discriminatory intimidation, ridicule, and insult.” Littlejohn, 795 F.3d at 320. Indeed, it is
undisputed that his statements communicated the opposite message: a sharp condemnation of any
discrimination against Grewal on the basis of her national origin. Cuneo testified that he chose to
address the issue of Grewal’s status as a “foreigner” with his staff after he and Grewal attended a
meeting with attorneys from another firm—a “group of largely white males,” he says—who had,
in Cuneo’s view, failed to take Grewal’s “very good” points seriously enough. Recalling that this
episode left him “appalled” and “mad as hell,” Cuneo testified that he wished to address the
incident with his colleagues to explain that “racism, sexism [and] nativism are not dead in
America,” and that “it’s something that even among educated people, we have to combat, period.”
Cuneo further testified that he intended “to identify with [Grewal] and to express solidarity” with

23

her in his statements. Cuneo Dep. Tr. at 64:2–4.
The testimony of other participants at the 2011 litigation meeting uniformly supports
Cuneo’s view of the events. Gilbert, for instance, testified that Cuneo had addressed Grewal’s
national origin at the firm’s meeting because he viewed the way in which non-CGL attorneys had
treated Grewal “as a teachable moment for all of us to sit back and take stock of how professionals,
and particularly professional lawyers, can sometimes mistreat people and not take people seriously
just based on either their gender or their age or their nationality.” Gilbert Dep. Tr. at 44:7–16.
LaDuca likewise testified that, as he understood Cuneo’s statements, Cuneo was “protecting
[Grewal] and supportive of [her].” LaDuca Dep. Tr. at 21:20–22:7.

The thrust of Cuneo’s

statements, according to the testimony of all other CGL employees who testified about the
meeting, was that Grewal deserved equal treatment and that anything less would not be tolerated
at the firm.
Critically, it is not disputed that Grewal shared this positive impression of Cuneo’s
statements regarding her national origin. Indeed, immediately after the meeting at which Cuneo
made these statements, Grewal sent him an e-mail thanking him “for all the wonderful things [he]
said at the meeting today.” Grewal Dep. Ex. 2. During her deposition, Grewal testified that she
thanked Cuneo because she wanted to “acknowledge, you know, that they had done something
good for me.” Grewal Dep. Tr. at 55:25–56:2. Grewal further testified that Cuneo had “said
something nice in that meeting for me, and it felt really good.” Id. at 55:25–56:2. In Grewal’s
view, Cuneo’s statements “acknowledged that he should take me seriously, which is a big thing
for me” and “acknowledged that I have ability.” Id. at 57:5–20. Thus, the evidence in this case
reveals no dispute that, far from permeating the workplace with discriminatory intimidation,
Cuneo’s statements served to praise Grewal’s performance and to demand that other CGL

24

employees treat her with fairness and respect, irrespective of her nation of origin.9
The Court recognizes that, in many cases, summary judgment is inappropriate where a
plaintiff’s account of an incident of alleged harassment conflicts with that of her co-workers or
supervisors. See Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 726 (2d Cir. 2010)
(explaining that a “question of ‘he said, she said,’” in the discrimination context, is one on which
the court cannot “take a side at the summary judgment stage”). This is not such a case. Grewal’s
deposition testimony and contemporaneous communications with her supervisors leave no dispute
that she, like all other CGL employees present at the litigation meeting, did not view Cuneo’s
statements as insulting, intimidating, or biased in any way. Rather, Grewal and her co-workers at
CGL tell the same story: Cuneo discussed her national origin to encourage his employees to
“combat” workplace discrimination.
The Court also recognizes that an employee may initially brush off discriminatory
comments in the workplace, but upon reflection consider them—or, with a dose of courage, even
publicly declare them—intimidating, insulting, or offensive. If that were the case, the significance
of the allegedly discriminatory statements may well be an issue to resolve at trial, rather than on
summary judgment. But again, that is not the case here. Immediately after Cuneo made the
comments in question, Grewal thanked him—characterizing his statements as “wonderful.” And
throughout this litigation, Grewal has continued to describe these statements as “nice” and “good,”
failing to explain how they created a hostile work environment.
Moreover, even if Cuneo intended to communicate that employees of CGL did, in fact,
“just treat [Grewal] as a foreigner,” this single statement would nonetheless fail to qualify as an

Grewal rightly notes that Cuneo referred to her as a “girl” in the 2011 litigation meeting. Grewal
does not, however, claim that Cuneo’s use of the term “girl,” however ill-advised, related in any way to her
national origin. Nor does she claim that she was subjected to a hostile work environment on the basis of
her sex. See SAC ¶¶ 178–81.
9

25

“extraordinarily severe” incident that could alter the conditions of Grewal’s employment. Alfano,
294 F.3d at 374; see Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (“For racist
comments, slurs, and jokes to constitute a hostile work environment, there must be more than a
few isolated incidents of racial enmity, meaning that instead of sporadic racial slurs, there must be
a steady barrage of opprobrious racial comments.” (alteration omitted) (internal quotation marks
omitted)); see, e.g., Daniel v. T & M Prot. Res. LLC, 87 F. Supp. 3d 621, 627, 635–36 (S.D.N.Y.
2015) (finding that a supervisor’s use of explicit racial epitaphs during a “profanity-laced tirade,”
although “reprehensible,” was not sufficiently severe to survive summary judgment on hostile
work environment claim).
The second incident Grewal identifies, in which Cuneo told her that “we don’t understand
your accent,” is also not sufficient to support a hostile work environment claim under the
NYSHRL. Even when this statement is viewed in combination with Cuneo’s statements at the
2011 litigation meeting, no reasonable juror could find that incidents of discrimination on the basis
of Grewal’s national origin were “continuous and concerted” or constituted a “steady barrage of
opprobrious . . . comments.” Tolbert, 790 F.3d at 439 (internal quotation marks omitted); see, e.g.,
Lessambo v. PricewaterhouseCoopers, L.P., No. 08-CV-6272, 2010 WL 3958787, at *11
(S.D.N.Y. Sept. 27, 2010) (holding supervisor’s “three offensive remarks” about employee’s
national origin did not create a hostile work environment), aff’d, 451 F. App’x 57 (2d Cir. 2011)
(summary order); Manessis v. N.Y. City Dep't of Transp., No. 02-CV-359 (SAS), 2003 WL
289969, at *5–6 (S.D.N.Y. Feb. 10, 2003) (finding evidence of two incidents that arguably showed
discriminatory bias against employee on the basis of his national origin insufficient to survive
summary judgment on hostile work environment claim), aff’d sub nom. Manessis v. Chasin, 86 F.
App’x 464 (2d Cir. 2004) (summary order); cf. Rivera v. Rochester Genesee Reg’l Transp. Auth.,

26

743 F.3d 11, 20–21, 23 (2d Cir. 2014) (finding evidence that co-workers referred to a plaintiff with
a racial epitaph “probably like three times” and led a racially insensitive chant against him “about
five times” presented a “close call” and was “(barely) enough” to survive summary judgment).
Nor is this second incident severe enough for a reasonable juror to find that Grewal’s work
environment was hostile or abusive. See, e.g., Boza–Meade v. Rochester Hous. Auth., 170 F. Supp.
3d 535, 547 (W.D.N.Y. 2016) (finding that allegations that the co-workers of a Panamanian
plaintiff “made fun of her accent,” without further factual information as to the context and
frequency of the remarks, were not sufficient to state a claim for hostile work environment);
Daniel, 87 F. Supp. 3d at 627, 636 (finding evidence of incidents in which a supervisor “imitated”
the English accent of an employee from St. Vincent and the Grenadines and told the employee to
“go back to England” insufficient to survive summary judgment on hostile work environment
claim).
Finally, none of the other workplace slights Grewal identifies is sufficient, even viewed
collectively and in the light most favorable to her, to establish that she was subjected to a hostile
work environment on the basis of her Indian origin. For example, Grewal claims that Joel
Davidow, another CGL attorney, threatened her with disbarment in a dispute over the firm’s
representation of an international engineering and electronics company. See Pl. 56.1 ¶¶ 39–40,
76. Grewal further claims that CGL “created a hostile work environment” by “giving work
originated by Plaintiff to other attorneys, repeatedly giving credit of her work to others,
deliberately leaving Plaintiff out of meetings,” as well as “order[ing] repeat investigations and
issu[ing] numerous threats.” Id. ¶ 74. Grewal, however, has not alleged that any of these incidents,
which she describes as demoralizing, related in any way to her national origin. As a result, she
may not maintain a claim under the NYSHRL on the basis of these incidents. See, e.g., Brown v.

27

Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (“It is axiomatic that mistreatment at work, whether
through subjection to a hostile environment or through such concrete deprivations as being fired
or being denied a promotion, is actionable . . . only when it occurs because of an employee's sex,
or other protected characteristic.” (emphasis added)); see also Bliss v. MXK Rest. Corp., No. 16CV-2676, 2016 WL 6775439, at *2 (S.D.N.Y. Nov. 14, 2016) (dismissing an NYSHRL hostile
work environment claim where the plaintiff “fail[ed] to establish the necessary causal link between
Defendants’ offensive conduct and her gender”).10
Accordingly, there is no genuine dispute of fact precluding summary judgment on
Plaintiffs’ claim for hostile work environment under the NYSHRL.
2. New York City Human Rights Law
Grewal next asserts a claim for discrimination or hostile work environment under the
NYCHRL. As with Grewal’s claim under the NYSHRL, there is no genuine dispute of material
fact with respect to this claim, and summary judgement to CGL is appropriate.
Under the NYCHRL, it is unlawful for an employer to discriminate against an individual
“in compensation or in terms, conditions, or privileges of employment” because of the individual’s
national origin. N.Y.C. Admin. Code § 8-107(a). Pursuant to the New York City Council’s
revisions to the NYCHRL in the Local Civil Rights Restoration Act of 2005 (the “Restoration
Act”), N.Y.C. Local L. No. 85, “courts must analyze NYCHRL claims separately and
independently from any federal and state law claims.” Mihalik v. Credit Agricole Cheuvreux N.
Am., Inc., 715 F.3d 102, 109 (2d Cir. 2013). Courts must “constru[e] the NYCHRL’s provisions
‘broadly in favor of discrimination plaintiffs, to the extent that such a construction is reasonably

Grewal’s claim that CGL created a hostile work environment by requesting her green card
following her departure from the firm also lacks merit, as any events that occurred after Grewal left CGL’s
employ may not support her hostile work environment claim.
10

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possible.” Id. (quoting Albunio v. City of New York, 947 N.E.2d 135, 137 (N.Y. 2011)). “[E]ven
if the challenged conduct is not actionable under federal and state law, federal courts must consider
separately whether it is actionable under the broader New York City standard.” Id.; see also
LeBlanc v. United Parcel Serv., No. 11-CV-6983 (KPF), 2014 WL 1407706, at *21 (S.D.N.Y.
Apr. 11, 2014) (“Hostile work environment claims under the NYCHRL are governed by a more
permissive standard for liability.” (internal quotation marks omitted)).
To prevail on an NYCHRL claim, a “plaintiff need only show differential treatment—that
she is treated ‘less well’—because of a discriminatory intent.” Mihalik, 715 F.3d at 110; see also
Williams v. N.Y.C. Hous. Auth., 872 N.Y.S.2d 27, 39 (1st Dep’t 2009).11 Like Title VII and the
NYSHRL, however, the NYCHRL is “not a ‘general civility code,’ and ‘petty slights and trivial
inconveniences’ are not actionable.” Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650, 671
(S.D.N.Y. 2012) (quoting Campbell v. Cellco P’ship, 860 F. Supp. 2d 284, 298 (S.D.N.Y. 2012)).
“In determining whether a claim of hostile work environment survives summary judgment, the
relevant consideration is whether there is a triable issue of fact as to whether the plaintiff ‘has been
treated less well than other employees because of [her protected characteristic].’” Barounis v. N.Y.
City Police Dep’t, No. 10-CV-2631 (SAS), 2012 WL 6194190, at *9 (S.D.N.Y. Dec. 12, 2012)
(quoting Williams, 872 N.Y.S.2d at 39).
Here, summary judgment is appropriate on Grewal’s NYCHRL claim because she has
failed to provide evidence that she was treated “less well” than other CGL employees on the basis
of her national origin. As discussed above, it is undisputed that Cuneo’s 2011 statements regarding
Grewal’s status as a “foreigner” did not reflect any intent to single out Grewal for less favorable

“The NYCHRL does not differentiate between discrimination and hostile work environment
claims; rather, both are governed by N.Y.C. Admin. Code § 8–107(1)(a).” Russo v. N.Y. Presbyterian
Hosp., 972 F. Supp. 2d 429, 449–50 (E.D.N.Y. 2013).
11

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treatment than her colleagues. To the contrary, the uncontroverted evidence shows that Cuneo
discussed Grewal’s national origin with CGL employees to insist that she receive the same respect
as all her colleagues, regardless of her national origin.

Thus, Cuneo’s 2011 statements do not

support any inference that Grewal was treated “less well” on the basis of her national origin.
Moreover, Grewal cannot create a triable issue of fact by characterizing Cuneo’s statement
that “we don’t take this girl seriously” as an admission that CGL employees had, in fact, failed to
take her as seriously as her colleagues. The undisputed evidence demonstrates that Cuneo’s use
of “we” referred not to CGL employees but rather to a “group of largely white males” from another
law firm who had, in Cuneo’s view, failed to take Grewal as seriously as they should. Under the
circumstances of this case, the fact that Grewal may have encountered bias or discrimination in a
meeting with others outside her firm does not suggest that she was treated less well on the basis of
her national origin by her own employer. Indeed, the evidence suggests the opposite: Cuneo
highlighted the conduct of other attorneys to send a clear message to his own staff that such
behavior was unacceptable at CGL.
Furthermore, the broad remedial purpose of the Restoration Act does not support Grewal’s
claim that Cuneo’s statements should be actionable under the NYCHRL, even though they are not
under state or federal law. In passing the Restoration Act, the New York City Council emphasized
the “need to make sure that discrimination plays no role” in the work environment. Williams, 872
N.Y.S.2d at 38 (emphasis in original). Far from frustrating this objective, Cuneo’s statements
promoted it: the undisputed evidence demonstrates that Cuneo sent his employees a clear message
that discrimination in any form—whether on the basis of race, gender, or national origin—is
unacceptable. Moreover, like the New York City Council, Cuneo expressly acknowledged that
workplace discrimination remains an intractable problem—and one from which “educated people”

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and the legal profession are not immune. Cuneo’s statements thus reflect the very goals and
concerns that lay behind the Restoration Act, and subjecting CGL to liability on the basis of these
statements would do little to further the Act’s purpose.
Grewal’s claim that Cuneo separately stated “we don’t understand your accent,” viewed in
the context of this case, also cannot support a claim under the NYCHRL. To be sure, this statement
may be viewed as a reference to Grewal’s national origin, as she testified that she does speak with
an accent. Standing alone, however, this statement does not indicate that Grewal was treated any
less well than her colleagues—Cuneo did not, for instance, mock Grewal or suggest that she was
any less capable an employee because she spoke with an accent. Absent further evidence, this
statement is not sufficient for a fact-finder to reasonably conclude that Grewal was treated “less
well” than her colleagues on the basis of her national origin. See, e.g., Pena v. Bd. of Elections in
City of N.Y., No. 16-CV-00427 (VEC) (BCM), 2017 WL 722505, at *7, 11 (S.D.N.Y. Feb. 6,
2017) (dismissing a hostile work environment claim under NYCHRL for failure to state a claim
where the plaintiff alleged that a co-worker arguably “denigrated her Dominican origin” by asking
“jokingly, ‘on which boat did I come’”), report and recommendation adopted, 2017 WL 713561
(S.D.N.Y. Feb. 22, 2017); Mullins v. Consol. Edison Co. of N.Y, Inc., No. 13-CV-6800 (LGS),
2015 WL 4503648, at *5 (S.D.N.Y. July 22, 2015) (granting summary judgment to defendants on
an NYCHRL claim where plaintiff, a black man who was born in Barbados, claimed that his white
supervisor stated, “you speak well,” which he perceived as a comment regarding his race or
national origin).12

As with Grewal’s NYSHRL claim, the other incidents of which she complains—including
Davidow’s alleged threat of disbarment and CGL’s alleged failure to give her credit or include her in
meetings—cannot support an NYCHRL claim because Grewal has not provided evidence that any of these
incidents was a result of her national origin. See, e.g., Russo, 972 F. Supp. at 451 (explaining that, under
the NYCHRL, “a plaintiff must still establish that she suffered a hostile work environment because of her
[protected characteristic]” (emphasis in original)).
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Accordingly, CGL is entitled to summary judgment on Grewal’s NYSHRL and
NYCHRL claims.
D. Motion to Strike
CGL moves to strike Grewal’s submissions in opposition to CGL’s motion for summary
judgment and in further support of her own for summary judgment. See Def. Mot. to Strike (Dkt.
220). CGL argues that Grewal’s submissions should be stricken because they contain inadmissible
evidence, make new arguments, and were filed and served one week late. The Court disagrees.
First, rather than striking Grewal’s submissions on inadmissibility grounds, the Court has
declined to consider evidence that appears inadmissible. Federal Rule of Civil Procedure 56(c)(4)
provides that, on a motion for summary judgment, an “affidavit or declaration used to support or
oppose a motion must be made on personal knowledge, set out facts that would be admissible in
evidence, and show that the affiant or declarant is competent to testify on the matters stated.” Fed.
R. Civ. P. 56(c)(4). “A court may therefore strike portions of an affidavit that are not based upon
the affiant’s personal knowledge, contain inadmissible hearsay or make generalized and
conclusory statements.” Hollander v. Am. Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999),
abrogated on other grounds by Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000); see also New
World Sols., Inc. v. NameMedia Inc., 150 F. Supp. 3d 287, 304–05 (S.D.N.Y. 2015). Alternatively,
a court may “simply decline to consider those aspects of a supporting affidavit that do not appear
to be based on personal knowledge or are otherwise inadmissible.” Smeraldo v. City of Jamestown,
512 F. App’x 32, 34 (2d Cir. 2013) (summary order). The “principles governing admissibility of
evidence do not change on a motion for summary judgment.” Porter v. Quarantillo, 722 F.3d 94,
97 (2d Cir. 2013) (citation omitted). Here, CGL correctly notes that Grewal’s reply submissions
include evidence of settlement offers and negotiations between the parties, apparently as evidence

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of the amount of her disputed claims, which is inadmissible under Federal Rule of Evidence 408.
See Fed. R. Evid. 408. The Court has not considered this evidence. CGL also argues that Grewal
has submitted inadmissible hearsay evidence, such as statements from non-CGL attorneys
regarding the quality of Grewal’s work. See Def. Mot. to Strike at 3–4. The Court has not
considered these statements, which in any event do not appear relevant to any issue in this action.
Accordingly, the Court has not considered the inadmissible evidence CGL has identified but
concludes that striking all of Grewal’s submissions, which include at least some admissible
evidence, is not an appropriate remedy.
Second, the Court does not find that any new arguments in Grewal’s submissions provide
a basis for striking the submissions. It is true that “arguments or requests for relief raised for the
first time in reply briefs need not be considered.” In re Various Grand Jury Subpoenas, No. 12MC-381, 2017 WL 361685, at *9 (S.D.N.Y. Jan. 24, 2017) (citing ABN Amro Verzekeringen BV
v. Geologistics Ams., Inc., 485 F.3d 85, 100 n.16 (2d Cir. 2007)). “However, the Second Circuit
has made it abundantly clear that a district court has discretion to consider a belatedly-raised
argument.” Am. Hotel Int’l Grp., Inc. v. OneBeacon Ins. Co., 611 F. Supp. 2d 373, 375
(S.D.N.Y. 2009) (emphasis in original), aff’d, 374 F. App’x 71 (2d Cir. 2010). The Court agrees
that Grewal has raised at least one new argument in her reply submissions; specifically, Grewal
has asserted an unlawful retaliation claim in her brief in opposition to CGL’s motion for
summary judgment. See Pl. Opp. Mem. at 12–14. The Court does not consider this claim, which
Grewal did not include in her Second Amended Complaint. The Court also does not consider
Grewal’s discriminatory discharge claim, see id. at 9–12, which the Court dismissed on July 7,
2015, see Opinion and Order at 27–28, 34 (Dkt. 98). While Grewal’s assertion of at least one
new claim and one claim that the Court has previously dismissed was improper, the Court does

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not find that this conduct warrants the harsh sanction of striking all Grewal’s reply submissions.
Finally, the Court exercises its discretion to excuse the untimely filing and service of
Grewal’s reply submissions. Under Rule 6(b)(1)(B) of the Federal Rules of Civil Procedure, a
district court “may, for good cause, extend the time . . . if the party failed to act because of
excusable neglect.” Fed. R. Civ. P. 6(b)(1)(B). “To determine whether a party’s neglect is
excusable, a district court should take into account: ‘[1] [t]he danger of prejudice to the
[opposing party], [2] the length of the delay and its potential impact on judicial proceedings, [3]
the reason for the delay, including whether it was in the reasonable control of the movant, and
[4] whether the movant acted in good faith.’” Tancredi v. Metro. Life Ins. Co., 378 F.3d 220,
228 (2d Cir. 2004) (quoting Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship, 507 U.S.
380, 395 (1993)); accord In re Am. Exp. Fin. Advisors Sec. Litig., 672 F.3d 113, 129 (2d Cir.
2011). “As these factors suggest, ‘excusable neglect’ is an ‘elastic concept,’ that is ‘at bottom an
equitable one, taking account of all relevant circumstances surrounding the party’s omission.”
Tancredi, 378 F.3d at 228 (quoting Pioneer, 507 U.S. at 392, 395). “‘Excusable
neglect’ . . . may encompass delays caused by inadvertence, mistake, or carelessness, at least
when the delay was not long, there is no bad faith, there is no prejudice to the opposing party,
and movant’s excuse has some merit.’” LoSacco v. City of Middletown, 71 F.3d 88, 93 (2d Cir.
1995) (quoting Pioneer, 507 U.S. at 388).
These considerations weigh in favor of finding that Grewal’s delay in filing her reply
submissions constitutes excusable neglect. First, there is no danger of prejudice to CGL, as CGL
has no further right of reply—and has, in any event, submitted a substantive response to
Grewal’s reply in its motion to strike and supporting memorandum of law. See, e.g., Mascaro
Const. Co. L.P. v. Local Union No. 210, 391 F. App’x 13, 16 (2d Cir. 2010) (summary order)

34

(finding that “no prejudice could have resulted” from a petitioner’s untimely submission of reply
brief “since respondent had no further right of reply”). Second, the length of Grewal’s delay—
seven days—was not substantial, particularly in light of the fact that she had submitted “an
earlier version” of her reply materials on time. See, e.g., Tancredi, 378 F.3d at 228 (holding that
a party’s “seven-day delay was minimal”); Brown v. City of N.Y., No. 11-CV-1068 (AJN), 2014
WL 896737, at *2 (S.D.N.Y. Feb. 27, 2014) (“[T]he length of the delay—seven days—was not
significant.”). Third, while the reason for Grewal’s delay was an inadvertent mistake—she
claims she “mistakenly submitted an earlier draft” of the submissions—there is no indication that
she acted in bad faith. See In re PaineWebber Ltd. P’ships Litig., 147 F.3d 132, 135 (2d
Cir.1998) (“Excusable neglect may be found where the relevant circumstances reveal inadvertent
delays, mistakes, or carelessness.”). Accordingly, the Court excuses Grewal’s untimeliness in
filing and serving her reply submissions.
CGL’s motion to strike is therefore denied.
E. Sealed Documents
The Court notes that Grewal has submitted several documents under seal in connection
with the parties’ motions for summary judgment. These documents include:
1. Exhibits appended to Grewal’s motion for summary judgment. CGL has
submitted redacted versions of several of these exhibits, which CGL claims
contain confidential information, see Dkts. 211, 217;
2. Plaintiff’s Response to Defendant’s Statement of Material Facts and
Counterstatement in Further Support of Plaintiff’s Motion for Summary
Judgment;
3. Plaintiff’s Memorandum in Opposition to Defendant’s Motion for Summary
Judgment;
4. Plaintiff’s Declaration and Rule 56.1 Statement in Further Support of Plaintiff’s
Motion for Summary Judgment and Counter to Defendant’s Motion for
Summary Judgment; and
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5. Plaintiff’s Declaration in Further Support of Plaintiff’s Motion for Summary
Judgment and in Counter to Defendant’s Rule 56.1 Statement, along with
accompanying exhibits.
Within one week of the filing of this Opinion and Order, the parties are to advise the Court
whether they oppose the filing of (1) the redacted exhibits to Grewal’s motion for summary
judgment, as filed at Docket No. 217, along with unredacted versions of all other exhibits
submitted by Grewal in support of her motion for summary judgment, and (2) each of the other
submissions listed above. If the Court receives no opposition within this time period, the Court
shall file these documents on the public docket. Any request for sealing or redacting these
documents must address the standard set forth in Lugosch v. Pyramid Co. of Onondaga, 435 F.3d
110 (2d Cir. 2006).
CONCLUSION
For the reasons set forth above, Grewal’s motion for summary judgment is denied; CGL’s
motion for summary judgment is granted in part and denied in part; and CGL’s motion to strike is
denied. CGL’s motion for oral argument is denied. The Clerk of Court is respectfully directed to
close the motions pending at Docket Nos. 191, 195, 220, and 221.
A conference is hereby scheduled for April 13, 2017 at 2:00 p.m. in Courtroom 1506 at the
United States Courthouse, 40 Foley Square, New York, New York 10007.
SO ORDERED.
Dated:

March 31, 2017
New York, New York
Ronnie Abrams
United States District Judge

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