Li v. Cushman & Wakefield, Inc. et al

Filing 47

OPINION AND ORDER.....C&Ws January 20, 2017 motion for summary judgment is granted as to Lis claims of gender discrimination under the NYSHRL and the NYCHRL, and as to Lis demotion claim under the NYSHRL. The claims that remain for trial are (1) NYCHRL claims for demotion and firing based on national origin and age; and (2) NYSHRL claims for firing based on national origin and age. (Signed by Judge Denise L. Cote on 5/3/2017) (gr)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-------------------------------------- X
:
HONGMEI LI,
:
Plaintiff,
:
:
-v:
:
CUSHMAN & WAKEFIELD, INC. and PETER
:
VICTOR,
:
Defendants.
:
:
-------------------------------------- X

16cv2484 (DLC)
OPINION AND ORDER

DENISE COTE, District Judge:
APPEARANCES
For the plaintiff:
Jeremy Heisler
Inayat Ali Hemani
Sanford Heisler, LLP
1350 Avenue of the Americas, 31st Floor
New York, NY 10019
For the defendants:
Thomas M. Wilde
Vedder Price P.C.
222 North LaSalle Street
Chicago, Illinois 60601
Ashley B. Huddleston
Vedder Price P.C.
1633 Broadway, 31st Floor
New York, NY 10019
DENISE COTE, District Judge:
This is an employment discrimination action by plaintiff
Hongmei “Janice” Li (“Li”) against her former employer, Cushman
& Wakefield, Inc. (“C&W”) and her former supervisor at C&W,
Peter Victor (“Victor”).

Li alleges that C&W and Victor demoted

and then discharged her improperly on the basis of her national
origin, age, and gender.

She sues under the New York State

Human Rights Law, as codified at N.Y. Executive Law § 296 et
seq. (“NYSHRL”), and the New York City Human Rights Law, as
codified in the Administrative Code of the City of New York § 8–
107 et seq. (“NYCHRL”).
judgment.

The defendants move for summary

For the reasons that follow, the motion is granted in

part.
Background
The following describes the evidence which is either
undisputed or taken in the light most favorable to the
plaintiff.

C&W is a global real estate services firm with over

250 offices worldwide.

C&W provides services including

commercial leasing and valuation.

The International Desk

(“iDesk”) is a group within C&W that develops and facilitates
cross-border transactions and connects brokers and clients from
different regions of the world.

In July 2012, Li was hired to

work at C&W as an Associate Director on the iDesk.

Li is a

woman of Chinese national origin and was 43 years old at the
time she was hired.
Li received two performance reviews in 2013 and 2014 from
her C&W supervisor Kaustuv Roy (“Roy”).

They were largely

positive, although they noted some difficulties, including a
need to improve written English skills.
2

In March 2015, Roy

recommended that Li be promoted from Associate Director to
Director.

On April 1, 2015, C&W promoted plaintiff, then age

47, to Director and raised her base salary.
During her time at C&W, Li describes two incidents which
she believes demonstrate discrimination based on national
origin.

In June of 2013, a Chairman of Global Brokerage at C&W

(the “Chairman”) told Li that he would pay $10,000 to sponsor an
event with a Chinese finance organization.

After the event, he

attempted to renege on his promise to pay.

Li alleges that

after the Chinese finance organization sent an email about the
bill, the Chairman angrily said to her: “This Chinese group, I
[have] never see[n] people like money so much.”
In July of 2015, Li was on a conference call with C&W’s San
Francisco office to help them prepare for a call with a Chinese
client.

At the end of the call, she heard a female broker in

the San Francisco office (the “Broker”) laugh and say to another
broker something to the effect of: “What kind of translator did
you find?

I can’t understand what she is talking about.”

Li

emailed the Broker and the others on the conference call,
summarizing the comments, and asking the Broker to inform Li if
she could not understand her rather than making comments to
others.

The Broker wrote back to apologize to Li and the team.

In May 2015, C&W and DTZ, another commercial real estate
firm, announced plans to merge.

DTZ had its own, smaller, iDesk
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function with three employees reporting into another department: 1
Michael Baker, who was based in London, Alan Brass, and Peter
Stanford.

The DTZ iDesk employees are younger than Li and none

are of Chinese national origin.
As of the date the merger was announced, C&W’s iDesk
contained two regional groups working in tandem.

It had two

supervisors, each of whom supervised one other iDesk employee.
Victor lead the Europe, Middle East, and Africa (“EMEA”) group
from the London office.

Victor supervised Sam King (“King”),

who was hired in March 2014 as a Director of the EMEA iDesk
team. 2

King is a Caucasian male who is younger than King.

King

spent his first six months in the London office before moving to
the New York office and assuming a Managing Director role.

Roy

led the Asia-Pacific (“APAC”) group from the New York office.
Roy supervised Li.
The C&W and DTZ merger was completed on September 2, 2015,
and the C&W and DTZ iDesks were reorganized to form one group of
four employees.

Victor became the global lead for the iDesk

team to whom the other three employees would report.
Baker led the EMEA team from London.

Michael

The U.S. market was split

These three employees reported to Quentin Knights, who was head
of Global Occupier Services (“GOS”) at DTZ.
1

Pardeep Bhakar, an iDesk manager, also reported to Victor.
After the merger he reported to Baker. His position analyzes,
manages, and tracks data across iDesk.
2

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into east and west teams.

Prerana Daga (“Daga”) was hired in

May or June of 2015 as an Executive Director and led the west
team from C&W’s San Franscio office.
and of Indian national origin.

Daga is younger than Li

King led the east team.

Li was

initially placed in a support role to Daga and King, but her
position was terminated in December.

Comparing the pre- and

post-merger C&W and DTZ iDesk teams, seven employees were
reduced to four in number.

Roy’s supervisory position was

eliminated and three supervisee positions were eliminated: those
of Stanford and Brass, who had been at the iDesk at DTZ, and
Li’s position.

Daga was hired.

On December 1, 2015, Li was notified of her discharge.
According to Li, Victor said that they were looking to create a
more junior role to support King in New York, and to hire
someone who was a generalist instead of a specialist.

Plaintiff

expressed interest in the junior position and said she was
willing to take a pay cut.

The position was never filled.

On

December 31, 2015, Li’s employment at C&W ended.
On March 3, 2016, Li filed a complaint against Victor and
C&W in the Supreme Court of the State of New York.

On April 4,

the defendants removed the case to federal court on the basis of
diversity jurisdiction.
complaint.

On June 27, Li filed the first amended

Li alleges that the defendants demoted her by

putting her in a support role and ultimately discharged her
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because of her national origin, age, and gender, in violation of
the NYCHRL and the NYSHRL.

C&W filed the instant motion for

summary judgment on January 20, 2017.

The motion became fully

submitted on February 24.
Discussion
Summary judgment may not be granted unless all of the
submissions taken together “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).

“Summary

judgment is appropriate where the record taken as a whole could
not lead a rational trier of fact to find for the non-moving
party.”

Smith v. Cty. of Suffolk, 776 F.3d 114, 121 (2d Cir.

2015) (citation omitted).

The moving party bears the burden of

demonstrating the absence of a material factual question, and in
making this determination, the court must view all facts in the
light most favorable to the non-moving party.

Eastman Kodak Co.

v. Image Tech. Servs., Inc., 504 U.S. 451, 456 (1992); Gemmink
v. Jay Peak Inc., 807 F.3d. 46, 48 (2d Cir. 2015).

If the

moving party makes this initial showing, the burden then shifts
to the opposing party to establish a genuine dispute of material
fact.

El-Nahal v. Yassky, 835 F.3d 248, 252, 256 (2d Cir.

2016).
Once the moving party has asserted facts showing that the
non-movant’s claims cannot be sustained, “the party opposing
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summary judgment may not merely rest on the allegations or
denials of his pleading; rather his response, by affidavits or
otherwise as provided in [Rule 56], 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) (citation
omitted).

“[C]onclusory statements, conjecture, and

inadmissible evidence are insufficient to defeat summary
judgment,” Ridinger v. Dow Jones & Co. Inc., 651 F.3d 309, 317
(2d Cir. 2011) (citation omitted), as is “mere speculation or
conjecture as to the true nature of the facts.”

Hicks v.

Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted).
“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 court must draw all

inferences and all ambiguities in a light most favorable to the
nonmoving party.

Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161,

169 (2d Cir. 2006); United States v. Diebold, Inc., 369 U.S.
654, 655 (1962).
In cases involving claims of employment discrimination
there is a “need for caution about granting summary judgment to
an employer in a discrimination case where . . . the merits turn
on a dispute as to the employer’s intent.”

Tolbert v. Smith,

790 F.3d 427, 434 (2d Cir. 2015) (citation omitted).
7

Nonetheless, “a plaintiff must provide more than conclusory
allegations to resist a motion for summary judgment.”
v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008).

Holcomb

Ultimately,

the test for summary judgment “is whether the evidence can
reasonably support a verdict in plaintiff’s favor.”

James v.

N.Y. Racing Ass’n, 233 F.3d 149, 157 (2d Cir. 2000).
NYSHRL claims are analyzed under the same burden shifting
regime as their federal counterparts, consistent with the
Supreme Court’s decision in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973).

Tolbert, 790 F.3d at 434. 3

Under the

McDonnell Douglas standard, a plaintiff bears the burden of
establishing a prima facie case of discrimination by showing (1)
that she is a member of a protected class; (2) that she was
qualified for employment in the position; (3) that she suffered
an adverse employment action; and (4) some minimal evidence
suggesting an inference that the employer acted with
discriminatory motivation.

Doe v. Columbia Univ., 831 F.3d 46,

54 (2d Cir. 2016).
Once the prima facie case has been made, “the burden shifts
Age discrimination claims brought pursuant to the NYSHRL are
analyzed under the Age Discrimination Employment Act framework,
and gender and national origin discrimination claims brought
pursuant to the NYSHRL are analyzed under the Title VII
framework. Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d
Cir. 2009) (age and gender discrimination); Brown v. Daikin Am.
Inc., 756 F.3d 219, 226 (2d Cir. 2014) (national origin
discrimination).
3

8

to the employer to give a legitimate, non-discriminatory reason
for its actions.”

Kirkland v. Cablevision Sys., 760 F.3d 223,

225 (2d Cir. 2014) (per curiam).

Once the employer presents

evidence of its justification for the adverse employment action,
the presumption of discrimination established by the prima facie
case “drops out of the picture” and the McDonnell Douglas
framework “is no longer relevant.”
(citation omitted).

Doe, 831 F.3d at 54

At this stage, in the context of gender and

national origin discrimination claims, the plaintiff must point
to evidence sufficient to permit a rational factfinder to
conclude that the defendant’s reason is merely a pretext or that
the defendant’s action was based at least in part on
discrimination.

Kirkland, 760 F.3d at 225.

For disparate-

treatment discrimination claims based on age, the plaintiff must
prove that age was a “but-for” cause of the adverse employment
action, not just a contributing or motivating factor.

Delaney

v. Bank of Am. Corp., 766 F.3d 163, 168 (2d Cir. 2014);
Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir.
2010).

In other words, the plaintiff must offer evidence that

the action would not have occurred without the employer’s
consideration of the plaintiff’s age.

Delaney, 766 F.3d at 169.

NYCHRL discrimination claims must be analyzed “separately
and independently from any federal and state law claims,
construing [the NYCHRL’s] provisions broadly in favor of
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discrimination plaintiffs to the extent that such a construction
is reasonably possible.”

Ya-Chen Chen v. City Univ. of New

York, 805 F.3d 59, 75 (2d Cir. 2015) (citation omitted).

Thus,

“even 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 standards.”
Velazco v. Columbus Citizens Found., 778 F.3d 409, 411 (2d Cir.
2015) (citation omitted).
Section 8–107 of the NYCHRL makes it “an unlawful
discriminatory practice . . . [f]or an employer or an employee
or agent thereof, because of the actual or perceived age, . . .
national origin, [or] gender of any person . . . [t]o 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.”

N.Y.C.

Admin. Code § 8–107(1)(a). 4
Construing the phrase “discriminate against . . . in
terms, conditions or privileges of employment”
broadly, the First Department . . . declined to use
the federal “severe and pervasive” standard for NYCHRL
claims and instead adopted a rule by which liability
is normally determined simply by the existence of
“It is unclear whether, and to what extent, the McDonnell
Douglas burden-shifting analysis has been modified for NYCHRL
claims.” Mihalik v. Credit Agricole Cheuvreux N.A., Inc., 715
F.3d 102, 110 n.8 (2d Cir. 2013). Nevertheless, the burdenshifting framework is frequently applied to NYCHRL claims. See,
e.g., Hudson v. Merrill Lynch & Co., 31 N.Y.S.3d 3, 6–7 (App.
Div. 1st Dep’t 2016) (applying McDonnell Douglas burden-shifting
framework to NYCHRL claim).
4

10

differential treatment. To establish a []
discrimination claim under the NYCHRL, the plaintiff
need only demonstrate by a preponderance of the
evidence that she has been treated less well than
other employees because of her [protected
characteristic].
Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102,
110 (2d Cir. 2013) (citation omitted).

“The employer may

present evidence of its legitimate, non-discriminatory motives
to show the conduct was not caused by discrimination, but it is
entitled to summary judgment on this basis only if the record
establishes as a matter of law that discrimination played no
role in its actions.”

Id. at 110 n.8 (citation omitted).

“If

the plaintiff responds with some evidence that at least one of
the reasons proffered by the defendant is false, misleading, or
incomplete, . . . such evidence of pretext should in almost
every case indicate to the court that a motion for summary
judgment must be denied.”

Bennett v. Health Mgt. Sys., Inc.,

936 N.Y.S.2d 112, 124 (App. Div. 1st Dep’t) 2011).

Still,

“NYCHRL is not a general civility code” and a plaintiff still
must “show that she has been treated less well because of her”
protected characteristics.
omitted).

Mihalik, 715 F.3d at 110 (citation

In making this determination, a court must consider

the totality of the circumstances because “the overall context
in which the challenged conduct occurs cannot be ignored.”
at 111 (citation omitted).
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Id.

Li claims she was discriminated against on the basis of
national origin, age, and gender in two ways: she was demoted
and then fired.

The parties do not dispute that Li is a member

of a protected class, that she was qualified for the position of
Director at iDesk, or that her firing constitutes an adverse
employment action.

With respect to the plaintiff’s burden of

showing prima facie evidence of discrimination, the parties
dispute that she suffered an adverse employment action through a
demotion and that she has offered evidence that creates an
inference of discriminatory intent based on national origin,
age, and gender.
A. Adverse Employment Action: Demotion
Under the NYSHRL framework, “[a]n employee suffers an
‘adverse employment action’ if he endures a materially adverse
change in the terms and conditions of employment.

An adverse

employment action is one which is more disruptive than a mere
inconvenience or an alteration of job responsibilities.”
Tolbert, 790 F.3d at 435 (citation omitted).

The more lenient

standard of the NYCHRL requires only that the plaintiff “show
that she has been treated less well” because of her protected
characteristic.

Mihalik, 715 F.3d at 110 (citation omitted).

Li contends that she was able to work with more
independence prior to the reorganization, that she was given
less responsibility after the reorganization, and that she was
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prohibited from contacting brokers directly after the
reorganization.

It is undisputed that Li’s salary, benefits,

and job title did not change.
Li has not shown that the “demotion” she describes
constituted an adverse employment action under the NYSHRL.

She

has, however, presented sufficient evidence to find that an
adverse employment action due to a demotion existed under the
NYCHRL.

Therefore, summary judgment is granted to the

defendants on the NYSHRL demotion claims.
B. Discriminatory Intent
A plaintiff may either offer direct evidence of
discriminatory intent, or may offer indirect evidence to raise
an inference of discriminatory intent.

Direct evidence is

typically in the form of remarks made about the plaintiff, or
the protected class to which she belongs.

In determining

whether a remark is probative of discrimination, courts consider
four non-exhaustive factors:
“(1) who made the remark (i.e., a decision-maker, a
supervisor, or a low-level co-worker); (2) when the
remark was made in relation to the employment decision
at issue; (3) the content of the remark (i.e., whether
a reasonable juror could view the remark as
discriminatory); and (4) the context in which the
remark was made (i.e., whether it was related to the
decision-making process).”
Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 149 (2d Cir. 2010).
Indirect evidence may be offered by showing that the
13

employer subjected the plaintiff to disparate treatment, that
is, treated her less favorably than a similarly situated
employee outside her protected group -- i.e., a “comparator.”
Raspardo v. Carlone, 770 F.3d 97, 126 (2d Cir. 2014).

A

plaintiff relying on a comparator to show disparate treatment
must show that the comparator is “similarly situated in all
material respects” to the plaintiff.

Id. (citation omitted).

[A]n inference of discriminatory intent may be derived
from a variety of circumstances, including, but not
limited to: the employer’s continuing, after
discharging the plaintiff, to seek applicants from
persons of the plaintiff’s qualifications to fill that
position; or the employer’s criticism of the
plaintiff’s performance in ethnically degrading terms;
or its invidious comments about others in the
employee’s protected group; or the more favorable
treatment of employees not in the protected group; or
the sequence of events leading to the plaintiff’s
discharge.
Leibowitz, 584 F.3d at 502 (citation omitted).

In addition to

discriminatory intent, a plaintiff must “demonstrate that the
causal connection between the defendant’s action and the
plaintiff’s injury is sufficiently direct.

Ordinary principles

of causation apply to this inquiry into proximate cause.”

Back,

365 F.3d at 125 (citation omitted).
Li purports to offer direct evidence of discrimination on
the basis of her national origin through the comments made by
the Chairman and the Broker.

These were isolated comments made

by individuals who were not involved in the decision to demote
14

or fire Li, nor were the comments made in connection with those
adverse employment actions.

Li has offered no evidence to show

a connection between the alleged comments and the injury, and
therefore they do not support Li’s claim that the adverse
employment actions were made on the basis of her national
origin.

Li has, however, satisfied her minimal burden to raise

an inference of discrimination on the basis of national origin
by offering other evidence.

Before the reorganization, the

iDesk groups at C&W and DTZ had only one Chinese employee: Li.
After the reorganization, Li lost her job.

Li has met her

minimal burden to demonstrate a prima facie case of national
origin discrimination.
Li has satisfied her burden to demonstrate a prima facie
case on the basis of age as well.

Li, the oldest supervised

employee at the iDesk at either C&W or DTZ, was fired in the
reorganization.

Li has met her burden, which is minimal, to

demonstrate a prima facie case of age discrimination.
Li offers no direct evidence of discriminatory comments
based on gender.

Nor does she offer any indirect evidence of

discrimination on this basis.

Before the reorganization, she

was the only woman at iDesk, and she was fired.

But, after the

reorganization, the same number of women worked at iDesk.
hired Daga during the reorganization.

C&W

Therefore, Li has not

presented evidence sufficient to make out a prima facie case of
15

gender discrimination.

The defendants are granted summary

judgment on each of Li’s gender discrimination claims.
C. Legitimate Non-discriminatory Reason
Once the plaintiff has satisfied her burden to present
evidence of a prima facie case, the burden shifts to the
defendants to give a legitimate, non-discriminatory reason that
the plaintiff was demoted or fired.

Kirkland, 760 F.3d at 225.

A reduction in workforce and/or restructuring is a legitimate,
non-discriminatory reason.

Gallo v. Prudential Residential

Servs., Ltd., 22 F.3d 1219, 1226 (2d Cir. 1994).

But “[i]t is

axiomatic that even during a legitimate reorganization or
workforce reduction, an employer may not dismiss employees for
unlawful discriminatory reasons.”

Leibowitz, 584 F.3d at 504

(citation omitted).
The defendants give several reasons for altering Li’s job
responsibilities and soon thereafter firing Li that are
unrelated to her national origin or age.

They have offered

evidence that (1) the iDesk was moving to a generalist, rather
than specialist model, and that Li was a specialist; (2) Victor
was more familiar with King’s work and more confident in his
abilities; and (3) there was insufficient work to justify two
positions at the iDesk in New York.

While the defendants have

articulated three non-discriminatory reasons, Li has presented
sufficient evidence to require a jury to determine whether the
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defendants acted with discriminatory intent.
While C&W has provided evidence that Li was a specialist,
there is evidence that King was also a specialist, and Li
asserts that she was capable of becoming a generalist.

Second,

while Victor and Li had not worked together and Victor had
supervised King for 20 months, a preference for King over Li due
to familiarity or confidence is insufficient to dispel an
inference of discrimination through a motion for summary
judgment.

Finally, a need to reduce the size of the New York

workforce does not address why Li rather than King or another
member of the team was fired.
Conclusion
C&W’s January 20, 2017 motion for summary judgment is
granted as to Li’s claims of gender discrimination under the
NYSHRL and the NYCHRL, and as to Li’s demotion claim under the
NYSHRL.

The claims that remain for trial are (1) NYCHRL claims

for demotion and firing based on national origin and age; and
(2) NYSHRL claims for firing based on national origin and age.
Dated:

New York, New York
May 3, 2017
__________________________________
DENISE COTE
United States District Judge

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