Opinion
No. 502167/2012.
09-23-2016
John B. ELLISON, Plaintiff, v. CHARTIS CLAIMS, INC. a/k/a American International Group Domestic Claims, Inc., Andrew Barberis, Bryan Pedro, Michael Muscarella, Sheryl Rein, Marti Lametta, Karen Massie and Richard Woollams, Defendants.
Joseph T. Roccanova, Esq., Roccanova Law, PC, Huntington, Counsel for plaintiff John B. Ellison. Steven Seltzer, Esq., The Seltzer Law Group P.C., New York, Co–Counsel for plaintiff John B. Ellison. Paul Hastings, LLP, New York, Counsel for defendants.
Joseph T. Roccanova, Esq., Roccanova Law, PC, Huntington, Counsel for plaintiff John B. Ellison.
Steven Seltzer, Esq., The Seltzer Law Group P.C., New York, Co–Counsel for plaintiff John B. Ellison.
Paul Hastings, LLP, New York, Counsel for defendants.
KAREN B. ROTHENBERG, J.
The following e-filed papers read herein:
| Papers | Numbered |
|---|---|
| Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed | 205, 207–268 295–619 621 652 656 658–660 |
| Opposing Affidavits (Affirmations) | 296–619 621661 |
| Reply Affidavits (Affirmations) | 624–639 641–649 |
| Affidavit (Affirmation) Memoranda of Law | 206 620 623 650 655657 |
Upon the foregoing papers, in this action by plaintiff John B. Ellison (plaintiff) against defendants Chartis Claims, Inc. a/k/a American International Group Domestic Claims, Inc. (AIG), Andrew Barberis (Barberis), Bryan Pedro (Pedro), Michael Muscarella (Muscarella), Sheryl Rein (Rein), Marti Lametta (Lametta), Karen Massie (Massie), and Richard Woollams (Woollams) (collectively, defendants) alleging discrimination, retaliation, and harassment, and seeking monetary, injunctive, and declaratory relief, defendants move for an order, pursuant to CPLR 3212, granting summary judgment dismissing plaintiff's second amended complaint with prejudice. Plaintiff cross-moves for an order: (1) granting him leave to interpose a third amended complaint which adds a tenth cause of action against Lametta and Rein for aiding and abetting discriminatory conduct, (2) deeming his third amended complaint served upon defendants, (3) granting him summary judgment in his favor on his third cause of action for salary discrimination, and (4) granting summary judgment on his seventh, eighth, and ninth causes of action for a declaratory judgment that the promissory note, pursuant to which defendants claim to have terminated his employment, is unenforceable. Plaintiff also cross-moves for an order: (1) granting leave to file a sur-reply addressing the new arguments and information set forth in defendants' reply papers dated February 5, 2016, identified on pages 42 and 43 of his accompanying memorandum of law, or, alternatively, striking those arguments and information from the record, (2) striking pages 15 through 20 of defendants' reply memorandum of law dated February 5, 2016 and all information contained therein if the court is not inclined to grant discovery on those issues, and (3) striking all references and information concerning the use of company credit cards by AIG employees, other than him, contained in defendants' August 5, 2015 memorandum of law (including page 6 thereof) and defendants' February 5, 2016 reply memorandum of law (including pages 9 and 10 thereof).
FACTS AND PROCEDURAL BACKGROUND
Plaintiff is an African American male, who, in April 2000, became affiliated with AIG as a paralegal at a starting salary of $35,000. In September 2001, plaintiff received a salary increase of 7.1%, increasing his salary to $37,500. Plaintiff transferred to a claims analyst position, Analyst I, in 2002. In March 2003, plaintiff received a salary increase of 6.66%, increasing his salary to $40,000. In early 2004, plaintiff was promoted to Analyst II, after being interviewed by Muscarella, and was assigned to AIG's Complex West Claims Unit (the CW unit). Due to his promotion, effective January 2004, plaintiff received a salary increase of 12.5%, increasing his salary to $45,000. In January 2005, plaintiff received a salary increase of 12%, increasing his salary to $50,400. In January 2006, plaintiff received a salary increase of 7.14%, increasing his salary to $54,000. In January 2007, plaintiff received a salary increase of 5%, increasing his salary to $56,700. On December 31, 2007, plaintiff was promoted to Senior Analyst within the CW unit. Due to his promotion, plaintiff received a salary increase of 8.99%, increasing his salary to $61,800. In December 2008, plaintiff received a salary increase of 3.56%, increasing his salary to $64,000. In June 2010, plaintiff received a salary increase of 2.5%, increasing his salary to $65,600.
Plaintiff asserts that the excess claims department at AIG, which includes the CW unit and had more than 200 claims adjusters, had only four other black adjusters during the time that he worked there. Plaintiff claims that during the seven-year period that he worked as a Senior Analyst for AIG, non-black AIG employees that performed substantially the same duties and responsibilities he did received higher salaries than his.
From 2003 to 2007, Woollams, a senior vice-president at AIG and chief claims officer, directly approved plaintiff's salary. Plaintiff alleges that he requested raises from 2007 to 2011, and claims that his requests for these raises were repeatedly denied, and that his salary was frozen in 2009, whereas the salaries of his non-black counterparts were not frozen during that year. He also points to the fact that he only received a 2.5% raise in June 2010.
Plaintiff allegedly requested promotions between 2009 and 2011, and submitted applications for the position of Complex Director in the CW unit and in the primary claims unit in February, 2009, June 2009, August 2009, December, 2009, March, 2010, February 2011 and June 2011. He was not promoted. The individuals who were promoted to the position of Complex Director were claims handlers who were not black.
Plaintiff claims that in May 2004, his manager, Muscarella, planned a trip to London, England to meet with AIG's London underwriters and claims managers who were responsible for handling the Treaty book of business. Plaintiff alleges that he was the most knowledgeable member in the CW unit regarding Treaty claims, but Muscarella did not select him to accompany him to London, and, instead, selected William Boyle (Boyle), a white claims adjuster, who allegedly lacked direct knowledge or experience with Treaty claims. As a result, plaintiff complained to Muscarella's supervisor, Dave Crowe (Crowe), that the selection of Boyle was racially discriminatory treatment. Crowe then reported this complaint to AIG's Human Resources Department, and, thereafter, plaintiff was permitted to attend the London meeting.
In early October 2006, AIG's Internal Audit Department identified over $1,900 in unpaid personal charges that plaintiff had made using his AIG corporate credit card. These charges included expenditures by plaintiff at restaurants, liquor stores, movies theaters, pharmacies, trips taken by him to Atlantic City, and dental work. Plaintiff's use of his corporate credit card for personal expenses was a violation of AIG policy. All cardholders of the AIG corporate credit card, including plaintiff, had been sent multiple corporate communications, throughout 2005, which reminded employees that the corporate credit card was to be used only for business-related expenses.
Pedro, a senior vice-president of Excess Complex claims at AIG and plaintiff's second-level supervisor, brought the credit card charges to plaintiff's attention, and plaintiff acknowledged that he had made the personal charges and promised that he would pay off the debt. However, over two months passed without any payment by plaintiff and the card issuer, Citibank, canceled plaintiff's corporate credit card. Joe Pascotto (Pascotto), who was then the Assistant Director of AIG Treasury–Cash Management Operations, informed plaintiff of the cancellation and warned him that once his account was 180 days past due, the account would be written off by Citibank without the possibility of being reinstated. By email dated December 21, 2006, Pedro reminded plaintiff that he had to repay the personal expenses and warned him that his failure to do so "could lead to further disciplinary action up to and including termination." Plaintiff's account was written off by Citibank after it was 180 days past due. This negatively impacted AIG as Citibank deducted the balance of the debt from AIG's corporate rebate. On April 30, 2007, plaintiff ultimately paid off his corporate credit card debt.
Plaintiff alleges that he made complaints of discrimination from 2008 through 2010. Plaintiff's complaints to AIG's Human Resources Department included complaints that he was not assigned the same level of responsibilities as his white counterparts, that he was being given more minor claims, and that claims were reassigned to white claims adjusters. Plaintiff also complained to Woollams that AIG should hire more black claims adjusters. Plaintiff asserts that no actions were taken by AIG with respect to these complaints.
Plaintiff alleges that in 2008, when Heico Companies (Heico), one of AIG's largest customers, changed the location of its 2008 annual meeting from New York to Chicago, and Muscarella brought Len Romeo (Romeo), a white claims adjuster, instead of him, to the meeting. Plaintiff asserts that prior to 2008, he had handled all of the claim files for Heico and that he had attended all annual meeting held between AIG and Heico. According to plaintiff, Heico specifically requested his attendance at these meetings. Plaintiff claims that Muscarella brought Romeo, instead of him, because of his race and in retaliation for the fact that he had complained of discrimination.
Plaintiff further claims that in 2009, one of AIG's long-standing clients, Interstate Hotels a/k/a Menstar Hotels (Interstate), requested a meeting with the CW unit for the purpose of discussing status and strategy for open claims. Plaintiff alleges that although he handled the bulk of Interstate's claims and was its direct liaison, when Muscarella was unable to attend that meeting, he appointed Romeo to lead the meeting, rather than him. Plaintiff claims that this was due to discrimination against him.
Plaintiff also alleges that AIG had a tuition reimbursement policy, which required employees to sign a "Hardship Case and Tuition Reimbursement Agreement" (the Tuition Reimbursement Agreement) in order to receive tuition reimbursement after successfully completing job-related courses. The Tuition Reimbursement Agreement provided that the employee was required to provide an official grade report for each course taken under the Tuition Reimbursement Agreement within 60 days of completing the requirements for each course, and that, in the event that the employee did not complete the course with at least a grade of a C, he or she would be required to repay AIG, upon demand, the full amount of the course costs, which included tuition, registration fees, and other expenses. Plaintiff signed the Tuition Reimbursement Agreement. In addition, plaintiff received and read AIG's Tuition Reimbursement Program Guidelines, which provided that the costs eligible for reimbursement were registration fees, tuition, laboratory and/or technology fees, exam fees (first attempt only), and required books. The Tuition Reimbursement Program Guidelines further provided that "an employee must repay 100% of all monies received" if "the employee withdraws from a course during the academic session."
Plaintiff enrolled in an on-line course of study with Concord Law School in 2004, and he received tuition reimbursement from AIG for his first year of law school. Plaintiff's application for tuition reimbursement for the fall 2005 semester and his re-application in early 2006 for tuition reimbursement in anticipation of enrolling in a second year of on-line study were denied. Plaintiff alleges that in 2006, Barberis, an Executive Vice–President at AIG, informed him that he had to satisfy additional requirements in order for AIG to approve his application for tuition reimbursement. He claims that there was no non-discriminatory reason for the imposition of these additional requirements on him and that they were imposed in retaliation for his prior complaints of discrimination and because he was African–American.
Plaintiff's application for tuition reimbursement was thereafter approved, and AIG provided plaintiff with a $5,106 tuition reimbursement advance to be used for the costs of tuition for Real Property and Civil Procedure classes for the July 2007 semester. Plaintiff received this $5,106 via a direct deposit to his bank account on January 31, 2007. Plaintiff agreed, by a February 5, 2007 email to his supervisors, i.e., Barberis, Pedro, and Muscarella, that if he did not complete the two courses in the July 2007 semester, he would immediately reimburse the full $5,108.
Plaintiff enrolled in these courses, and, in June 2007, he made his first installment payment to the online law school. Despite the fact that the Tuition Reimbursement Program Guidelines expressly set forth the costs which were eligible for reimbursement, plaintiff testified that he viewed the tuition advance as a grant that he could use for whatever expenses he wanted as long as he believed they promoted his schooling, such as "pay[ing] rent to keep from getting kicked out" (Plaintiff's Dep. Transcript at 82–84).
On November 28, 2007, plaintiff withdrew from all of his law school courses. At that point, he had paid $3,000.01 of the $5,106 to Concord Law School. Concord Law School sent plaintiff a refund of $301.18 after his withdrawal, reducing the total sum which plaintiff had paid to it to $2,695.83. Plaintiff kept the remaining $2,410.17 to spend on his personal expenses. However, in response to an email from Pedro, dated December 4, 2007, after plaintiff had already withdrawn from the courses, plaintiff falsely stated that he had been enrolled since July 2007 and did not disclose that he withdrew from the courses. On May 21, 2008, five months after plaintiff withdrew from the courses, plaintiff admitted to Muscarella that he had withdrawn, and that he would not be able to reimburse the funds all at once. Muscarella informed him that he would talk with Pedro and get back to him. Although repeated requests were made that plaintiff pay back the tuition reimbursement advance between May 2008 and June 2009, plaintiff did not repay it.
Plaintiff was not terminated at that point, instead, according to Pedro, who consulted with Barberis, Muscarella, Lametta, and Katie Sikorski, they collectively agreed to give plaintiff one last change to repay the money he owed to AIG in the form of a promissory note. In 2009, Rein called plaintiff into her office and told him that if he did not repay the tuition money given to him for his second year of law school, his employment would be immediately terminated. Lametta, via hand delivery, gave plaintiff a promissory note with a cover letter attached. Muscarella and Pedro allegedly told plaintiff that his employment would be terminated immediately if he did not sign the promissory note.
The cover letter, dated June 8, 2009, addressed to plaintiff, which was signed by Lametta, stated that in response to his request for a tuition reimbursement loan repayment plan, there was attached a promissory note which must be signed, witnessed, and returned to her attention no later than five business days of receipt of the letter.
The promissory note provided that plaintiff promised to pay to the order of AIG the sum of $5,616.60 which included an administrative fee of 10% ($510.60). It required plaintiff to make monthly payments of $100 to be paid on the 15th day of each month, beginning on June 15, 2009, until his obligation was fulfilled, with the final payment of $16.60 due on March 15, 2010. It permitted plaintiff to pay off the amount that was due at any time, in whole or in part, without any penalty. Plaintiff signed the promissory note on June 11, 2009, and he also initialed and dated the cover letter. Woollams signed the promissory note as a witness to plaintiff's signing of it.
Plaintiff asserts that the cover letter to the promissory note was contrary to the terms of the Tuition Reimbursement Agreement, which provided that if he owed AIG any tuition AIG could deduct any amounts owed from his bi-weekly paycheck or pursue other available remedies at law. Plaintiff claims that defendants created the promissory note and forced him to sign it, under the threat that otherwise he would be immediately terminated, in retaliation for his complaints of discrimination.
From June 2009 until May 2011, plaintiff made 24 monthly payments of $100 under the promissory note. Plaintiff was late in making these monthly payments on multiple occasions, including the very first payment due under the promissory note. On June 23, 2009, Pedro sent plaintiff an email reminder asking for $110 ($100 plus a late penalty of 10%) to be delivered to him or Muscarella. Plaintiff responded that "if the rest of the company showed the same persistence in collecting the $1.25T (one trillion two hundred twenty-five billion dollars) lost in the CDS/CDO debacle as you are showing in recouping the $5,106.00 paid in tuition costs and fees, the company would be in great shape," and that he would provide a check on Friday when he returned from conducting company business. Pedro, in a written warning dated June 26, 2009, set forth that he found this response by plaintiff "to be very unprofessional" and that it "border[ed] on insubordination." He further set forth that AIG had "gone to great lengths to accommodate [plaintiff's] financial issues," and that plaintiff had "been uncooperative and argumentative throughout these discussions." He also set forth that "[t]his behavior [by plaintiff] must stop," and that if he or any other member of AIG's management received any future similar communications from him and/or if this behavior continued, it would "result in disciplinary action up to and including termination of [his] employment with [AIG]." He additionally stated that because this special repayment arrangement was made with plaintiff, he expected him to be timely with his payments. Plaintiff signed this written warning to indicate that he received it.
By email dated December 21, 2009, Pedro informed plaintiff that his monthly payment of $100 was due on December 15, 2009. In this email, Pedro told plaintiff that a late charge of 10% was being imposed, and warned plaintiff that if AIG did not receive his payment of $110 by January 14, 2010, the entire unpaid balance would become immediately payable and his employment with AIG would be terminated.
In December 2009, plaintiff complained of discrimination and retaliation to Barberis and AIG's Human Resources Department. In January 2010, plaintiff submitted a written discrimination complaint to AIG's Human Resource Department after he was not selected for three Complex Director position openings for which he had submitted applications in February, June, and August 2009. In that complaint, plaintiff described the specific episodes of defendants' allegedly discriminatory and retaliatory actions against him. Plaintiff claims that AIG did not take any remedial action addressing this complaint. In addition, plaintiff, in December 2010, complained about two comments made by a co-worker to Human Resources.
On July 22, 2011, after plaintiff's $100 monthly payment for June 2011 had become more than 30 days past due, defendants terminated plaintiff's employment with AIG. Woollams allegedly approved and assented to plaintiff's termination when Barberis informed him that plaintiff could be terminated based on his failure to make the required $100 payment for June 2011. Plaintiff had attended his brother's funeral in June 2011, at the time that he missed the required payment, and he claims that he had to assist with funeral costs and also had work related travel expenses. Pedro summoned plaintiff into his office on the day of his termination and Lamella was present. Plaintiff allegedly told them that he would make the payment on Friday when he received his pay check, but Pedro and Lametta did not agree to this and terminated him effective immediately that day. Upon being terminated, plaintiff was escorted out of the building by two security guards.
Plaintiff alleges that he is a member of a protected class because he is black and because he engaged in protected activity by complaining to defendants about being discriminated against on account of his race. Plaintiff alleges that defendants violated article 15 of the New York State Human Rights Law (Executive Law § 290 et seq. ) (the NYSHRL) and the New York City Human Rights Law (Administrative Code of the City of New York § 8–101 et seq.) (the NYCHRL) by terminating his employment with AIG on account of his race and skin color, and in retaliation for his engaging in protected activity for making complaints of discrimination. He claims that no other similarly situated AIG employee was required to sign a promissory note subject to termination or was terminated for failure to repay a tuition advance. He further claims that the Pedro, Muscarella, Barberis, Massie, Rein, Lametta, and Woollams were all personally involved in the decision to terminate his employment by either participating in the making of that decision or by influencing this decision by providing the decision-makers with information, advice, and recommendations concerning him which were motivated by discriminatory and retaliatory animus. Plaintiff claims that defendants cannot demonstrate any legitimate non-discriminatory reason for the actions taken against him and that any alleged non-discriminatory reason was nothing more than a pretext.
Plaintiff claims that defendants discriminated against him in violation of the NYCHRL and the NYSHRL by terminating his employment based on the promissory note, failing to promote him to the position of Complex Director, and denying him raises and a higher salary as compared to non-black employees. Plaintiff further alleges that defendants retaliated against him in violation of the NYCHRL and the NYSHRL for engaging in protected activity, i.e., making complaints of racial discrimination.
On July 31, 2012, plaintiff filed a summons with notice in this action against defendants. Plaintiff filed his initial complaint on October 25, 2012, a first amended complaint on May 6, 2013, and a second amended verified complaint on July 18, 2014. Plaintiff's second amended verified complaint contains nine causes of action, including a first cause of action for discriminatory and retaliatory termination, a second cause of action for retaliation, a third cause of action for salary discrimination, a fourth cause of action for discrimination and retaliation based on a failure to promote him, a fifth cause of action for violation of Administrative Code § 8–107 based upon defendants' creation of a hostile work environment, a sixth cause of action for violation of the NYCHRL based upon harassment, a seventh cause of action for a declaratory judgment that the termination of his employment was not a permissible remedy under the promissory note and cover letter, an eighth cause of action for a judicial declaration of unconscionability with respect to the termination clause in the cover letter to the promissory note and resultant damages, and a ninth cause of action for a judicial declaration of duress and coercion with respect to his execution of the promissory note and cover letter and resultant damages.
On August 15, 2014, defendants filed their answer, which denies plaintiff's allegations of discrimination and retaliation and asserts several affirmative defenses and a counterclaim. Defendants' counterclaim alleges that plaintiff defaulted on the promissory note by failing to make the required monthly payments after May 2011. Defendants allege that plaintiff still owes AIG the balance of $3,216.60, late charges of 10% of payments not made within five days of the due date, plus reasonable attorney's fees, court costs, and the costs of collection as provided by the terms of the promissory note. On September 15, 2014, plaintiff filed a reply to defendants' counterclaims. The depositions of the parties have been held. On December 18, 2015, defendants filed their instant motion. Thereafter, plaintiff filed his two cross motions. Oral argument was held on March 3, 2016 and continued on March 17, 2016.
The Applicable Standards
"A plaintiff alleging racial discrimination in employment [under the NYSHRL and the NYCHRL] has the initial burden of establishing a prima facie case of discrimination" (Lambert v. Macy's E., Inc., 84 A.D.3d 744, 745, 922 N.Y.S.2d 210 [2d Dept 2011] ; see also Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 305 [2004] ). "To meet this burden, a plaintiff must show that (1) he or she is a member of a protected class; (2) he or she was qualified to hold the position; (3) he or she was terminated from employment or suffered another adverse employment action; and (4) the discharge or other adverse action occurred under circumstances giving rise to an inference of discrimination (Lambert, 84 A.D.3d at 745, 922 N.Y.S.2d 210 ; see also Executive Law § 296[1][a] ; Administrative Code § 8–107[1][a]; Forrest, 3 N.Y.3d at 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629 [1997] ; Johnson v. North Shore Long Is. Jewish Health Sys., Inc., 137 A.D.3d 977, 978, 27 N.Y.S.3d 598 [2d Dept 2016] ). "The burden then shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision" ‘ " (Forrest, 3 N.Y.3d at 305, 786 N.Y.S.2d 382, 819 N.E.2d 998, quoting Ferrante, 90 N.Y.2d at 629, 665 N.Y.S.2d 25, 687 N.E.2d 1308, quoting Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 N.Y.2d 937, 938 [1985] ). "To thereafter succeed on the claim, the plaintiff must prove that the legitimate reasons proffered by the defendant were merely a pretext for discrimination, by demonstrating both that the stated reasons were false, and that discrimination was the real reason" (Lambert, 84 A.D.3d at 745, 922 N.Y.S.2d 210 ; see also Forrest, 3 N.Y.3d at 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Ferrante, 90 N.Y.2d at 629–630, 665 N.Y.S.2d 25, 687 N.E.2d 1308 ).
"To prevail on their summary judgment motion, defendants must demonstrate either plaintiff's failure to establish every element of intentional discrimination, or, having offered legitimate, nondiscriminatory reasons for their challenged actions, the absence of a material issue of fact as to whether their explanations were pretextual" (Forrest, 3 N.Y.3d at 305, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Clark v. Morelli Ratner PC, 73 A.D.3d 591, 591–592, 905 N.Y.S.2d 561 [1st Dept 2010] ; Johnson, 137 A.D.3d at 978, 27 N.Y.S.3d 598 ; Cotterell v. State of New York, 129 A.D.3d 653, 654, 10 N.Y.S.3d 558 [2d Dept 2015] ; Lambert, 84 A.D.3d at 745, 922 N.Y.S.2d 210 ). Defendants assert that plaintiff cannot establish intentional discrimination and that there is no material issue of fact that their explanations, which provide legitimate and nondiscriminatory reasons for their actions with respect to plaintiff, were not pretextual.As to plaintiff's claims of retaliation, under both the NYCHRL and the NYSHRL, "it is unlawful to retaliate against an employee for opposing discriminatory practices" (Forrest, 3 N.Y.3d at 312, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; see also Executive Law § 296[7] ; Administrative Code § 8–107[7]; Johnson, 137 A.D.3d at 979, 27 N.Y.S.3d 598 ). "In order to establish a prima facie case of retaliation, a plaintiff must show that: (1) [he or she] has engaged in protected activity, (2) [his or her] employer was aware that [he or she] participated in such activity, (3) [he or she] suffered an adverse employment action based upon [his or her] activity [or, under the NYCHRL, that defendants' actions were reasonably likely to deter a person from engaging in protected activity], and (4) there is a causal connection between the protected activity and the adverse action' " (Johnson, 137 A.D.3d at 979, 27 N.Y.S.3d 598, quoting Forrest, 3 N.Y.3d at 313, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; see also Cotterell, 129 A.D.3d at 655, 10 N.Y.S.3d 558 ; Chin v. New York City Hous. Auth., 106 A.D.3d 443, 444, 965 N.Y.S.2d 42 [1st Dept 2013], lv denied 22 N.Y.3d 861 [2014] ; Simeone v. County of Suffolk, 36 A.D.3d 890, 891, 828 N.Y.S.2d 560 [2d Dept 2007] ). Activity is protected when it constitutes "opposing or complaining about unlawful discrimination' " (Brook v. Overseas Media, Inc., 69 A.D.3d 444, 444, 893 N.Y.S.2d 37 [1st Dept 2010], quoting Forrest, 3 N.Y.3d at 313, 786 N.Y.S.2d 382, 819 N.E.2d 998 ).
Plaintiff's Claims of Discriminatory and Retaliatory Discharge
Plaintiff's first cause of action, claims that his termination was due to racial discrimination and retaliation. Plaintiff's second cause of action alleges retaliation based upon his complaints of discrimination. With respect to his discrimination claim, plaintiff, as an African–American man, was a member of a protected class. Defendants do not dispute that plaintiff had the qualifications for his position as a Senior Analyst, and plaintiff was terminated from his employment. While plaintiff alleges that his discharge occurred under circumstances giving rise to an inference of discrimination, defendants maintain that there is no issue of fact that plaintiff was discharged for legitimate reasons and there can be no inference of discrimination under the circumstances. Defendants further assert that plaintiff has not adduced any evidence of any race based animus, and that the decision to terminate plaintiff's employment was based on legitimate, independent, and nondiscriminatory reasons.
Specifically, it is undisputed that plaintiff failed to promptly disclose his withdrawal from law school, and that he used the tuition reimbursement advance, which he received from AIG for the payment of tuition, to pay for personal expenses, rather than repaying these funds to AIG. And, by doing so, plaintiff violated the terms of the Tuition Reimbursement Agreement and AIG's Tuition Reimbursement Program Guidelines. They also point to plaintiff's failure to comply with the terms of the promissory note.
As to plaintiff's claim that his termination was in retaliatory, it is undisputed that plaintiff made such complaints and defendants were aware that he did so. However, plaintiff has not shown that he was terminated based upon these complaints or any causal connection between his complaints of discrimination and his termination.
Defendants have shown, by extensive evidence, that the decision to terminate plaintiff's employment after he breached the terms of the promissory note, which was, in effect, a "last chance agreement," was a legitimate non-discriminatory response to years of plaintiff's continuing misconduct with respect to AIG sponsored funds that was in no way discriminatory or retaliatory. There is no evidence proffered by plaintiff which supports his claim that defendants' reasons for termination were pretextual.
Plaintiff attempts to argue that the termination penalty that accompanied the promissory note deviated from AIG's standard practice and that this raises a triable issue of fact as to whether defendants' proffered reason to terminate him was pretextual. This argument, however, must be rejected since plaintiff's misconduct, which led to the creation of the promissory note and the termination penalty, was unprecedented. AIG points out that there was no policy or standard procedure addressing plaintiff's situation where he, as an AIG employee, had: (1) abused his corporate credit card by using it for personal expenses then failed to timely pay back the monies owed, (2) received another chance in having been given a tuition advance for on-line law school courses, (3) withdrew from those courses without alerting his managers for over five months, (4) used a portion of the money earmarked for tuition for personal expenses, and (5) refused to repay the tuition money that he owed to AIG. Under these circumstances, AIG's employment decision to insist that plaintiff repay the money, and warn him that his employment would be terminated if he failed to do so cannot be found to be discriminatory or retaliatory.
Plaintiff, in arguing that there was a deviation from AIG's practice, contends that Barberis made two significant changes to the Tuition Reimbursement Agreement that were never before required of any AIG employee by requiring him to provide documentation evidencing the completion of each law school course, and if he did not complete the courses, to immediately reimburse the full advance. This is refuted by the Tuition Reimbursement Agreement, which provided that the employee was required to provide an official grade report for each course taken within 60 days of completing the course, and AIG's Tuition Reimbursement Program Guidelines, which provided that an "employee must repay 100% of all monies received" if [t]he employee withdraws from a course during the academic session." In fact, plaintiff received favorable treatment since AIG gave him the tuition money up-front via direct deposit on January 31, 2007, rather than paying the law school directly or requiring him to first submit proof that he had paid the academic institution.
Plaintiff points to the HR Guidelines for Recovery of Tuition Reimbursement Owed, and asserts that the termination penalty that accompanied the promissory note deviated from AIG's standard practice. However, these guidelines apply when the employee owes tuition reimbursement monies to AIG due to either leaving the company prior to one year subsequent from completion of all course requirements or not obtaining a grade equal to or higher than a C, as opposed to where an employee withdraws from the course and uses the monies for other purposes, as occurred with plaintiff. Furthermore, these guidelines state that if the employee does not respond to a letter demanding payment, a meeting with the employee should be held to discuss the situation and a promissory note should be used and then sent to Larry Wheeler at AI Recovery for administration. Here, a promissory note was used, the situation was discussed with plaintiff, and in view of plaintiff's use of the funds for personal purposes, it was determined that a penalty of termination would be imposed upon plaintiff's failure to repay the monies owed to AIG.
Plaintiff also points to the fact that the Tuition Reimbursement Agreement did not state that termination would be a penalty for failing to repay tuition and that the only reason it was imposed was because he was black, and complained of discrimination. However, there is no evidence that plaintiff's race played a role in the imposition of the penalty. Rather, the evidence discloses that plaintiff's misuse of the tuition reimbursement funds was the reason for imposing this penalty.
Plaintiff asserts that Katie Sikorski (Sikorski), a human resources director at AIG, admitted that her immediate supervisor, Mary Ann Ross (Ross), told her that it was not AIG's practice to issue a promissory note to a current employee, and that Ross criticized her decision to present plaintiff with a promissory note, and this indicates forcing him to sign a promissory note ran counter to AIG's policy. This contention, however, is devoid of merit since Sikorski also testified the company had not previously dealt with a situation where an employee owed money and refused to pay it back, and that Ross had only criticized her for giving plaintiff a promissory note to sign because "it would take him forever to pay it back" (Sikorski's Dep. Transcript at 76). Notably, Sikorski testified that at the meeting with plaintiff, her view was that plaintiff should be terminated for using the tuition money for his personal expenses (Id. at 142, 786 N.Y.S.2d 382, 819 N.E.2d 998 ). She further testified that it was discussed that if plaintiff did not pay the money back, "it was grounds for termination, but [AIG] was willing to work with him and come up with a payment plan," i.e., the promissory note (Id. at 154, 786 N.Y.S.2d 382, 819 N.E.2d 998 ). Notably, the repayment plan under the promissory note afforded plaintiff almost five years to repay the money that he owed, which was far more generous than the repayment period permitted in the Tuition Reimbursement Program Guidelines, which provided that where an employee must repay monies received from AIG under the tuition reimbursement program, the employee "may enter into a repayment plan for all monies owed at the discretion of the HR Manager, but the time frame granted for the repayment may not be greater than twelve (12) months."
Plaintiff also asserts that AIG's form promissory note and cover letter do not include a termination penalty. He points to a promissory note signed by Christopher Holland (Holland) on October 11, 2011, which did not contain a termination penalty, and contends that this demonstrates that termination for failed loan repayment was not a part of AIG's routine procedure and was only applied to him because he was a black employee who registered complaints of discrimination. However, Holland had separated from employment from AIG on December 17, 2010 and was not a current employee when he signed the promissory note.
With respect to plaintiff's retaliation claims, plaintiff argues that a strong inference of retaliatory intent can be drawn based on the temporal proximity between a complaint of discrimination that he made to Rein in June 2008 and defendants' efforts to recover the tuition reimbursement advance. Specifically, plaintiff asserts that on June 26, 2008, only one week after he filed a discrimination and retaliation complaint with AIG, Rein sent Barberis an email concerning her investigation into his complaints, and Barberis forwarded the email to Muscarella and Pedro asking for an update on his tuition reimbursement issue, and Barberis then sent Rein an email asking about his tuition reimbursement. Plaintiff states that for the one-month period between May 21, 2008, when he first informed AIG that he had not completed his classes, and June 26, 2008, AIG had not taken any concrete steps to seek repayment.
Defendants, in response, note that plaintiff first made that complaint of discrimination after he had revealed that he had withdrawn from Concord Law School and was told that he was required to repay the tuition reimbursement advance that he had received. "While an individual who complains of discrimination enjoys protection against retaliation, the mere filing of such a complaint does not insulate an employee from subsequent discipline or discharge by his employer, nor create an automatic presumption that any subsequent employer action adverse to the employee is retaliatory in nature" (Spencer v. Perrier Group of Am., 1997 WL 282258, *1, No. 95 Civ 8404[JSR], 74 Fair Empl Prac Cas [BNA] 438 [SD N.Y. May 28, 1997] ; see also Zembiec v. County of Monroe, 766 F.Supp.2d 484, 496 [WD N.Y.2011], affd 468 Fed Appx 39 [2d Cir2012] ; Reynolds v. Barrett, 741 F.Supp.2d 416, 435 [WD N.Y.2010], affd 685 F.3d 193 [2d Cir2012] ). "The [p]laintiff must demonstrate a nexus between a specific grievance and a specific adverse action' in order to find that proximity established causality" (Craddock v. Little Flower Children & Family Servs. of New York, 2016 WL 755631, *13, 12 –CV–5062 [JS][GRB] [ED N.Y. Feb. 25, 2016], quoting Edwards v. Horn, 2012 WL 760172, *17, No. 10 Civ 6194[RJS] [JLC] [SD N.Y. Mar. 8, 2012]; see also Andino v. Fischer, 698 F.Supp.2d 362, 385 [SD N.Y.2010] ).
Here, plaintiff has failed to establish causality between his complaints and defendants' actions requiring that he repay AIG the tuition reimbursement advance. Rather, defendants had valid, as opposed to pretextual reasons for requiring this reimbursement, and, upon his failure to comply with the terms of the promissory note and cover letter, for terminating plaintiff's employment.
Indeed, defendants repeatedly went to great lengths to accommodate plaintiff's financial situation and gave plaintiff repeated chances after he misused the funds given to him. AIG, rather than terminating plaintiff upon learning of his misuse of funds, continued to employ him and gave him the opportunity to repay the funds. In fact, AIG continued to employ plaintiff for more than seven years after he lodged his first complaint of discrimination in 2004, which is inconsistent with an intent to retaliate against him for such complaints.
Through such evidence, defendants have established that the reasons for terminating plaintiff were legitimate and nondiscriminatory. Plaintiff has failed to prove that circumstances exist suggesting that his discharge was due to his race or his complaints of discrimination. He does not allege that any comments were ever made by anyone about his race. Indeed, if AIG intended to terminate plaintiff's employment based upon his race or in retaliation for his multiple complaints of discrimination which dated back to 2004, it had multiple opportunities to do so long before he was terminated in 2011, including in 2006, when plaintiff made substantial personal charges on his corporate credit card in violation of AIG policy; in 2007, when plaintiff was more than 150 days late in paying off the personal charges on his corporate credit card; in May 2008, when defendants learned that plaintiff had withdrawn from on-line law school and failed to repay the $5,106 tuition reimbursement advance in accordance with the Tuition Reimbursement Agreement; in June 2009, when plaintiff still had not honored his repayment obligation to AIG and defendants learned that plaintiff had used part of the $5,106 for personal expenses; and in mid-June 2009, when plaintiff sent Pedro an insubordinate email. Defendants, instead, continually gave plaintiff additional chances.
By offering legitimate, nondiscriminatory reasons for their termination of plaintiff's employment, defendants have established their entitlement to judgment as a matter of law dismissing plaintiff's claims of racial discrimination with respect to his termination. Defendants have also established their prima facie entitlement to judgment as a matter of law dismissing plaintiff's claims alleging retaliation. In opposition, plaintiff has failed to raise a triable issue of fact as to whether defendants' explanations were pretextual (see Forrest, 3 N.Y.3d at 308, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Johnson, 137 A.D.3d at 978–979, 27 N.Y.S.3d 598 ; Cotterell, 129 A.D.3d at 655, 10 N.Y.S.3d 558 ; Reyes v. Brinks Global Servs. USA, Inc., 112 A.D.3d 805, 806 [2013] ; Lambert, 84 A.D.3d at 745–746, 922 N.Y.S.2d 210 ; Lichtman v. Martin's News Shops Mgt., Inc., 81 A.D.3d 696, 698, 917 N.Y.S.2d 222 [2d Dept 2011] ; Clark, 73 A.D.3d at 591–592, 905 N.Y.S.2d 561 ; Michno v. New York Hosp. Med. Ctr. of Queens, 71 A.D.3d 746, 746–747, 899 N.Y.S.2d 248 [2d Dept 2010] ). Thus, summary judgment dismissing plaintiff's discriminatory and retaliatory termination claims must be granted (see CPLR 3212[b] ; Mendelsohn v. New York Racing Assn., Inc., 134 A.D.3d 914, 915, 23 N.Y.S.3d 249 [2d Dept 2015] ).
Plaintiff's Salary Discrimination Claims
Plaintiff, in his third cause of action, alleges claims based upon salary discrimination. The NYSHRL and the NYCHRL declare it an unlawful discriminatory practice for an employer to discriminate in compensation on the basis of race (see Executive Law § 296[1][a] ; Administrative Code § 8–107[1][a] ). The standards for recovery under the NYCHRL and the NYSHRL are the same as Federal standards under Title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq. ) (see Ferrante v. American Lung Assn., 90 N.Y.2d 623, 629 [1997] ; Shah v. Wilco Sys., Inc., 27 A.D.3d 169, 176, 806 N.Y.S.2d 553 [1st Dept 2005] ; Tu v. Loan Pricing Corp., 21 Misc.3d 1104[A], 2008 N.Y. Slip Op 51945[U], *8 [Sup Ct, N.Y. County 2008] ).
Where a discrimination claim is based on disparate pay, a plaintiff, to set forth a prima facie case must have proof that he or she "is a member of a protected class and that he [or she] was paid less than similarly situated nonmembers of the [protected] class" (Shah, 27 A.D.3d at 176, 806 N.Y.S.2d 553 ). In order to prevail on a salary discrimination claim, the plaintiff must also prove that the individuals being compared had positions that were "substantially equal" and were paid more (Kent v. Papert Cos., 309 A.D.2d 234, 245, 764 N.Y.S.2d 675 [1st Dept 2003] ). Furthermore, "a plaintiff must produce evidence of discriminatory animus to establish a prima facie case of salary discrimination" (Tu, 2008 N.Y. Slip Op 51945[U], *9).
Defendants do not dispute that plaintiff's level of pay was lower than many other Senior Analysts at AIG. Defendants explain, however, that this disparity was based on entirely legitimate business reasons, rather than discrimination.
Specifically, Rein, in her affidavit, attests that prior to AIG's transition to a job grading system in 2011 that utilized salary ranges for each job grade, employees' salaries were determined based upon their starting salary and subsequent increases that were based on a percentage of their base salary. She explains that as a result, employees who held the same title, such as Senior Analyst, and had similar experience levels could have vastly different salaries, depending upon when and in what role they began their employment with AIG. She sets forth that since plaintiff started with AIG as a paralegal earning a salary of $35,000, his level of pay was lower than many other Senior Analysts, notwithstanding his above-average percentage increases during his tenure with AIG.
Plaintiff, however, contends that he was paid less than similarly situated non-black employees, and that this shows that he was discriminated against. In support of this contention, he asserts that in 2005/2006, 24 white individuals within excess claims in the position of Analyst III, which was the position immediately below the position of Senior Analyst, were paid more than the $61,800 salary that he received after being promoted to the position of Senior Analyst in 2008, two years later. He notes that the highest paid Analyst II employee earned $92,000 in 2005/2006, which was $30,200 more than he was paid as a Senior Analyst in 2008, and that the average salary paid to those 24 white Analyst II employees in 2005/2006 was $78,939.58, which was $17,139.58 more than he was paid as a Senior Analyst in 2008. He also asserts that during 2005/2006, the 5 white employees in the position of Analyst II, two positions below the Senior Analyst position, within excess claims, were paid more than the $61,800 salary that he received after being promoted to the position of Senior Analyst in 2008, two years later. However, this comparison is flawed since, as admitted by plaintiff (Plaintiff's Dep. Transcript at 289), in 2008, when he became a Senior Analyst, there were no longer Analyst II and Analyst III positions, but only Analysts and Senior Analysts.
Plaintiff also points to the fact that when he was an Analyst II in 2005/2006, he and the other two black Analyst II employees were paid less than the 5 white Analyst II employees in the excess claims unit. Plaintiff's statistical analysis, however, fails to take into account relevant factors other than race, such as the start date of employment, the employee's starting position, the employee's promotion history, or the employee's appraisal scores, in making salary comparisons, and, therefore, cannot support an inference of discriminatory motive (see Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 [2d Cir1999], cert denied 530 U.S. 1242 [2000] ; Weit v. Flaum, 258 A.D.2d 286, 286, 685 N.Y.S.2d 654 [1st Dept 1999] ).
Plaintiff points to certain employees as comparators, namely, C.L. and R.R, in an attempt to establish that the legitimate reasons offered by defendants for the salary differential was a pretext for discrimination. Plaintiff claims that C.L. began as a segmentation technician in 1998 with a starting salary of $24,000 which was lower than his starting salary, that C.L.'s salary was raised to $60,000 in 2003, and that C.L.'s salary for the same Senior Analyst position within the same excess claims department rose to $100,000 by January 2006. C.L., however, is not a proper comparator because he began working at AIG over two years before plaintiff in May 1998 and became a Complex Director in April 2003, and, contrary to plaintiff's assertions, was not a Senior Analyst in 2006. Consequently, C.L.'s salary information after he was promoted to Complex Director in April 2003 is not relevant with respect to plaintiff's claim of salary discrimination as a Senior Analyst. Indeed, defendants have documented that plaintiff was actually paid more than C.L. when C.L. held the same positions as plaintiff. Furthermore, C.L.'s salary increase in January 2006 was in connection with C.L.'s promotion to Senior Complex Director, and, therefore, cannot be compared to plaintiff's salary. Thus, C.L. cannot be considered a proper comparator (see Shah, 27 A.D.3d at 178, 806 N.Y.S.2d 553 ).
The names of these employees have been redacted to protect their privacy, as requested by defendants.
Plaintiff also points to R.R., who is white, as a comparator, and asserts that R.R. joined AIG as a Senior Analyst at a starting salary of $73,000 and within the same year was promoted to Complex Director with a salary increase to $95,000 as of January 2010, and, therefore, had a salary increase of 30.14% within a single year. Plaintiff compares this to his salary increases which, he states, averaged 6.3 percent (i.e., 7.1%, 6.66%, 12.5%, 12%, 7.14%, 5%, 8.99%, 3.56%, and 2.5) from September 2001 to June 2010, and asserts that this was because he was black and retaliated against by defendants.
Defendants, however, have shown that R.R. actually began working at AIG as an Analyst II, not a Senior Analyst, in April 2006, and then received a merit increase of 5.07% in April 2007, followed by a 6% salary increase in December 2007 in connection with his promotion to Senior Analyst, followed by a 7.5% merit raise in December 2008, and an 8.5% salary increase in connection with his promotion to Complex Director in October 2009. Therefore, rather than supporting plaintiff's discrimination claims, the amount of R.R.'s salary increases are actually in line with the amount of salary increases given to plaintiff.Thus, plaintiff has failed to support his claim that he was paid less than other similarly situated employees because of his race or retaliatory animus. Defendants have established their entitlement to summary judgment dismissing plaintiff's claims of salary discrimination and plaintiff has failed to raise any genuine triable issue of fact with respect to these claims, defendants' motion for summary judgment must be granted as to plaintiff's salary discrimination claims (see CPLR 3212[b] ). Consequently, plaintiff's cross motion, insofar as it seeks summary judgment in his favor on his third cause of action for salary discrimination, must be denied.
Plaintiff's Discrimination and Retaliation Claims Based Upon a Failure to Promote
Plaintiff, in his fourth cause of action alleges that defendants discriminated and retaliated against him by choosing other applicants who applied for the Complex Director position over him. He claims that he was not chosen because he is black and was retaliated against by defendants.
Initially, the court notes that any alleged decisions not to promote plaintiff to the position of Complex Director that occurred before July 31, 2009 are time-barred by the three-year statute of limitations governing such claims under the NYSHRL and the NYCHRL (see CPLR 214[2] ; Administrative Code § 8–502[d]; Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 307 [1983] ; Santiago–Mendez v. City of New York, 136 A.D.3d 428, 438, 26 N.Y.S.3d 514 [1st Dept 2016] ). While plaintiff attempts to invoke the continuing violations doctrine, which only can apply under the NYCHRL, such doctrine is not applicable to plaintiff's claims based on a failure to promote him to Complex Director since these promotion decisions were made by different supervisors over an extended time period, were discrete acts, and were not continuing violations which constituted a single pattern of unlawful discriminatory or retaliatory conduct (see Campbell v. Cellco Partnership, 860 F.Supp.2d 284, 299 [SD N.Y.2012] ; Santiago–Mendez, 136 A.D.3d at 428, 26 N.Y.S.3d 514 ; Ferraro v. New York City Dept. of Educ., 115 A.D.3d 497, 497–498, 982 N.Y.S.2d 746 [1st Dept 2014] ; compare St. Jean Jeudy v. City of New York, 2016 N.Y. Slip Op 06045, *2 [1st Dept 2016] [where a motion to dismiss, as opposed to summary judgment, was denied with respect to the plaintiff's claims under the NYCHRL due to the existence of a single continuing pattern of unlawful conduct starting from the plaintiff's first promotion rejection in 2007 extending into the statute of limitations period immediately preceding the filing of the plaintiff's complaint where the plaintiff's supervisor told him that he was not being promoted because of his foreign accent] ). In addition, there was no tolling for the period between his filing of an Equal Employment Opportunity Commission (EEOC) charge and the EEOC's issuance of a right-to-sue notice since plaintiff commenced this action on July 31, 2012, prior to receiving the right-to-sue notice on September 19, 2012, which the EEOC issued only after becoming aware that this action was already pending. Thus, it is only necessary for the court to address plaintiff's three applications for Complex Director which took place after July 31, 2009.
These three applications consist of a December 28, 2009 application by plaintiff for a Complex Director position reporting to James Maddiona (Maddiona), which was filled by Leshan Jayasekera (Jayasekera); a March 12, 2010 application by plaintiff for a Complex Director position reporting to Maddiona, which was filled by Tara Barlin (Barlin); and a February 8, 2011 application by plaintiff for a Complex Director position reporting to Massie, which was filled by Nicole Mauskopf (Mauskopf).
Defendants, in response to plaintiff's claims, have given race-neutral, facially legitimate reasons for denying plaintiff these three promotions. Specifically, defendants assert that the candidates hired for the positions were more qualified. Jayasekera held a law degree, had experience in the legal industry since 1994, was admitted to practice law in New York, Texas, and Hawaii, and had held a Complex Director position since 2008. Barlin had worked in the insurance industry since 1990 and held claims handling positions since 1994. Mauskopf had many years of practical experience as a defense attorney at law firms that AIG used to defend cases, and was found by Massie to have enthusiasm for the position and a game plan for the position that she presented to her. There is no evidence that plaintiff was more qualified than these chosen candidates, who had law degrees and substantial legal training which plaintiff did not possess, and/or significantly longer claims handling experience than plaintiff.
The circumstances surrounding all three of these employment actions demonstrate that an inference of racial discrimination is unwarranted. Plaintiff has pointed to no evidence which shows that the decisions to select these candidates for promotion, rather than selecting him, were racially motivated or retaliatory. Plaintiff has presented only bare, unsubstantiated allegations that defendants chose these candidates over him because of his race and in retaliation against him (see Workneh v. Pall Corp., 897 F.Supp.2d 121, 132 [ED N.Y.2012] ).
Furthermore, plaintiff has failed to make the requisite showing that the reasons offered by defendants for each of these selections were pretextual (see Holt v. KMI–Cont., Inc., 95 F.3d 123, 130 [2d Cir1996], cert denied 520 U.S. 1228 [1997] ; Chin, 106 A.D.3d at 444, 965 N.Y.S.2d 42 ). All three of the successful candidates had credentials which justified the favorable treatment of their applications. "Without a showing that a plaintiff was passed over for a position due to racial discrimination, this [c]ourt should not sit as a super-personnel department that reexamines an entity's business decisions" ‘ (Baldwin v. Cablevision Sys. Corp., 65 A.D.3d 961, 966, 888 N.Y.S.2d 1 [1st Dept 2009], lv denied 14 N.Y.3d 701 [2010], quoting Dale v. Chicago Tribune Co., 797 F.2d 458, 464 [7th Cir1986], cert denied 479 U.S. 1066 [1987] ).
Since plaintiff has adduced no evidence that the decisions to select Mauskopf, Barlin, and Jayasekara for promotion to Complex Director over him were racially motivated or retaliatory, defendants are entitled to summary judgment dismissing plaintiff's claims based upon their alleged discriminatory and retaliatory failure to promote him (see CPLR 3212[b] ; Mendelsohn v. New York Racing Assn., Inc., 134 A.D.3d 914, 915, 23 N.Y.S.3d 249 [2d Dept 2015] ; Chin, 106 A.D.3d at 444, 965 N.Y.S.2d 42 ).
Plaintiff's Hostile Work Environment and Harassment Claims
Plaintiff, in his fifth cause of action, alleges that he was subjected to a hostile work environment by defendants, and in his sixth cause of action, alleges that he was subjected to harassment by defendants.
In order to establish a claim of a hostile work environment under the NYSHRL, "a plaintiff must show that the workplace was 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" ' " (Johnson, 137 A.D.3d at 979, 27 N.Y.S.3d 598, quoting Forrest, 3 N.Y.3d at 310, 786 N.Y.S.2d 382, 819 N.E.2d 998, quoting Harris v. Forklift Systems, Inc., 510 U.S. 17, 21 [1993] ; see also Chiara v. Town of New Castle, 126 A.D.3d 111, 126, 2 N.Y.S.3d 132 [2d Dept 2015], lv dismissed 26 N.Y.3d 945 [2015] ). "Whether an environment is hostile or abusive can be determined only by looking at all the circumstances, including the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance' " (Forrest, 3 N.Y.3d at 310–311, 786 N.Y.S.2d 382, 819 N.E.2d 998, quoting Harris, 510 U.S. at 23 ). "[T]he conduct must both have altered the conditions of the victim's employment by being subjectively perceived as abusive by the plaintiff, and have created an objectively hostile or abusive environment—one that a reasonable person would find to be so" (Forrest, 3 N.Y.3d at 311, 786 N.Y.S.2d 382, 819 N.E.2d 998 ).
Under the broader standard of the NYCHRL, "liability for a harassment/hostile work environment claim is proven where a plaintiff proves that he or she was treated less well than other employees because of [his or her race]" (Nelson v. HSBC Bank USA, 87 A.D.3d 995, 999, 929 N.Y.S.2d 259 [2d Dept 2011] ; see also Williams v. New York City Hous. Auth., 61 A.D.3d 62, 78, 872 N.Y.S.2d 27 [1st Dept 2009], lv denied 13 N.Y.3d 702 [2009] ). The conduct alleged must exceed "what a reasonable victim of discrimination would consider petty slights and trivial inconveniences" (Williams, 61 A.D.3d at 80, 872 N.Y.S.2d 27 ).
Plaintiff contends that his work was arbitrarily assigned to less qualified white claims adjusters. In support of this contention, plaintiff cites to his removal from a claim for Dave & Busters. Plaintiff, in his affidavit, however, admits that it was Dave & Buster's risk manager who asked Muscarella to remove him from the case because the case did not settle. There is no evidence, other than mere speculation by plaintiff that Muscarella's motive for transferring this claim to another adjuster was based on his race or retaliation.
While plaintiff claims that he was denied a role at important company meetings, plaintiff does not dispute that he was ultimately selected to go to London in May 2004. He has also admitted that he has no personal knowledge as to whether Romeo, in fact, attended the annual meeting in Chicago for Heico in 2008, and testified that he had "no reason to believe that [Romeo] did attend" (Plaintiff's Dep. Transcript at 315). Moreover, plaintiff does not dispute that his claims based on the London trip and the Heico meeting are time-barred by the three-year statute of limitations of the NYSHRL and the NYCHRL (see CPLR 214[2] ; Administrative Code § 8–502[d]; Santiago–Mendez, 136 A.D.3d at 438, 26 N.Y.S.3d 514 ). Plaintiff also attended and participated in the meeting with Interstate Hotels in 2009.
Plaintiff further asserts that in December 2010, a co-worker, Warren McCann (McCann), greeted him by calling him "Johnny boy," and that he subsequently overheard McCann calling him a "bitcher." Plaintiff, however, has not shown that AIG knew of or acquiesced in these offensive remarks (see Zakrzewska v. New School, 14 N.Y.3d 469, 479 [2010] ; Forrest, 3 N.Y.3d at 311, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Curto v. Zittel's Dairy Farm, 26 A.D.3d 808, 809, 808 N.Y.S.2d 886 [4th Dept 2006], lv dismissed 6 N.Y.3d 861 [2006] ). Notably, McCann immediately apologized for the "Johnny boy" remark when plaintiff informed him that this comment offended him, and McCann denied making the "bitcher" remark. In any event, these two isolated comments are, at most, petty slights, which cannot have created a hostile work environment.
The court finds that the incidents alleged by plaintiff simply do not support a hostile work environment/harassment claim under either the NYSHRL or the NYCHRL (see Forrest, 3 N.Y.3d at 310, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Johnson, 137 A.D.3d at 979, 27 N.Y.S.3d 598 ; Chin, 106 A.D.3d at 444–445, 965 N.Y.S.2d 42 ; Thompson v. City of New York, 50 Misc.3d 1202[A], 2015 N.Y. Slip Op 51860[U], *7 [Sup Ct, N.Y. County 2015] ). Defendants have established their prima facie entitlement to judgment as a matter of law dismissing plaintiff's causes of action alleging a hostile work environment and harassment by demonstrating that the incidents alleged by him do not constitute racially discriminatory conduct (see Forrest, 3 N.Y.3d at 310, 786 N.Y.S.2d 382, 819 N.E.2d 998 ; Johnson, 137 A.D.3d at 979, 27 N.Y.S.3d 598 ). In opposition, plaintiff has failed to raise a triable issue of fact (see Johnson, 137 A.D.3d at 979, 27 N.Y.S.3d 598 ; Nettles v. LSG Sky Chefs, 94 A.D.3d 726, 730–731, 941 N.Y.S.2d 643 [2d Dept 2012] ; Kaptan v. Danchig, 19 A.D.3d 456, 457–458, 796 N.Y.S.2d 706 [2d Dept 2005] ). Thus, summary judgment dismissing plaintiff's hostile work environment and harassment claims must be granted (see CPLR 3212[b] ).
Plaintiff's Declaratory Judgment Claims
Plaintiff's seventh cause of action seeks a declaratory judgment that the termination of his employment was not an authorized penalty under the promissory note. His eighth cause of action seeks a declaratory judgment that the termination clause in the promissory note was unconscionable, and his ninth cause of action seeks a declaratory judgment that he signed the promissory note under duress and coercion, and is entitled to compensatory and punitive damages.
There is no merit to plaintiff's contention that the termination of his employment was not a permissible remedy under the promissory note. Plaintiff was an at-will employee, and, therefore, AIG had the right to terminate his employment and could properly provide that his failure to repay the tuition reimbursement advance that had been wrongfully used by him for personal purposes would result in his termination (see generally Horn v. New York Times, 100 N.Y.2d 85, 91 [2003] ).
Plaintiff contends that the promissory note is unconscionable because he was told that if he did not sign it within five days, he would be terminated from his employment with AIG. This contention is devoid of merit. Since plaintiff was an at-will employee, who AIG had the unfettered right to terminate at all times, requiring plaintiff to sign the promissory note as a condition of continued employment cannot be found to be unconscionable (see generally Sablosky v. Gordon Co., 73 N.Y.2d 133, 139 [1989] ; Minovici v. Belkin BV, 109 A.D.3d 520, 523, 971 N.Y.S.2d 103 [2d Dept 2013] ). Contrary to plaintiff's argument, the termination provision in the promissory note is not an unenforceable penalty. The termination provision did not constitute a liquidated damages clause since, even upon termination, plaintiff still was required to pay the amounts owed by him under the promissory note.
Plaintiff's claim that the promissory note and cover letter are voidable because he signed them under duress and coercion is also without merit. "A valid claim of duress has two components, (1) threats of an unlawful act by one party which (2) compels performance by the other party of an act which it had a legal right to abstain from performing" (Chase Manhattan Bank v. State of New York, 13 A.D.3d 873, 874, 787 N.Y.S.2d 155 [3d Dept 2004] ). Here, plaintiff cannot show duress because AIG did not threaten him with any unlawful act. Since plaintiff was an at-will employee, any threat of job termination cannot be deemed an unlawful act and cannot constitute a basis for duress (see Berzin v. W.P. Carey & Co., 293 A.D.2d 320, 321, 740 N.Y.S.2d 63 [1st Dept 2002] ; Di Siena v. Di Siena, 266 A.D.2d 673, 675, 698 N.Y.S.2d 93 [3d Dept 1999] ). Furthermore, plaintiff ratified the promissory note and his agreement in the cover letter regarding termination if payments were not made by him by failing to act promptly to repudiate the promissory note and his agreement regarding termination, making 24 monthly payments thereunder from June 2009 until May 2011, and accepting the benefits of an extended period of time to pay back the monies owed by him and continuing to be employed by AIG (see Allen v. Riese Org., Inc., 106 A.D.3d 514, 517, 965 N.Y.S.2d 437 [1st Dept 2013] ). Thus, plaintiff's agreement to the termination clause in the cover letter to the promissory note cannot be deemed the product of coercion or duress.
Consequently, plaintiff is not entitled to the declarations sought.
Plaintiff's Request to Interpose a Third Amended Complaint
Plaintiff, in his cross motion, seeks leave to interpose a third amended complaint in order to assert a tenth cause of action against Lametta and Rein for aiding and abetting discriminatory conduct. Pursuant to CPLR 3025(b), leave to amend a complaint should be freely granted, but only if the proposed amendment "is not palpably insufficient, does not prejudice or surprise the opposing party, and is not patently devoid of merit' " (Reyes v. Brinks Glob. Services USA, Inc., 112 A.D.3d 805, 806, 978 N.Y.S.2d 63 [2d Dept 2013], lv denied 22 N.Y.3d 866 [2014], rearg. denied 23 N.Y.3d 1031 [2014], quoting Ortega v. Bisogno & Meyerson, 2 A.D.3d 607, 609, 769 N.Y.S.2d 279 [2d Dept 2003] ; see also Douglas Elliman, LLC v. Bergere, 98 A.D.3d 642, 643, 949 N.Y.S.2d 766 [2d Dept 2012] ; Tarek Youssef Hassan Saleh v. 5th Ave. Kings Fruit & Vegetables Corp., 92 A.D.3d 749, 750, 939 N.Y.S.2d 102 [2d Dept 2012] ).
Since the court has found that there is no violation of the NYSHRL or the NYCHRL by AIG or any other party, Lametta and Rein cannot be held liable for aiding or abetting such a violation (see Benson v. Otis El. Co., 557 Fed Appx 74, 77 [2d Cir2014] ; Strauss v. New York State Dept. of Educ., 26 A.D.3d 67, 73, 805 N.Y.S.2d 704 [3d Dept 2005] ). Thus, the proposed amendment is patently devoid of merit and plaintiff's cross motion, insofar as it seeks leave to amend his second amended complaint, must be denied (see Reyes, 112 A.D.3d at 806, 978 N.Y.S.2d 63 ; Douglas Elliman, LLC, 98 A.D.3d at 644, 949 N.Y.S.2d 766 ; Tarek Youssef Hassan Saleh, 92 A.D.3d at 750, 939 N.Y.S.2d 102 ).
Plaintiff's Cross Motion for Other Relief
As set forth above, plaintiff, in his cross motion, seeks to strike certain arguments and information contained in defendants' reply papers and reply memorandum of law, which are dated February 5, 2016. While plaintiff seeks leave to file a sur-reply, he has, in fact, submitted a "corrected memorandum of law in further support of [his] cross motion for summary judgment and in support of [his] cross motion to file a sur-reply and/or strike certain portions of defendants' reply" dated February 24, 2016, and a "supplemental memorandum of law in further support of [his] cross motion to strike portions of defendants' memoranda of law" dated February 29, 2016. The court has additionally afforded plaintiff an opportunity to raise all of his arguments at the oral argument of the motion and cross motions.
Plaintiff, in his cross motion, claims that defendants raised arguments, in their reply papers, that his corporate credit card was taken away because he was delinquent on late charges, that Charmaine Brooks, an African–American AIG employee who had previous experience as an insurance defense litigation attorney, was, in fact, promoted to a Complex Director position, that there is no evidence that Maddiona was aware of his discrimination complaints, and other arguments. He contends that these arguments should have be stricken because they were not made in defendants' initial moving papers. He further claims that defendants have provided salary and raise history information for C.L. and R.R., which were not previously provided to him in discovery, and that this evidence should be stricken. In addition, plaintiff asserts that defendants have not provided information, in discovery, as to whether other employees used company credit cards for personal purposes, and that, therefore, the court should disregard defendants' assertions, made in their memorandum of law and reply memorandum of law, that other employees were terminated for using their corporate credit cards for personal expenses in violation of AIG's policy.
Plaintiff has not demonstrated how these arguments are prejudicial to him and there is no valid basis to strike them. However, even if these arguments by defendants were not considered by the court, the court finds that based upon the voluminous submissions by defendants which plaintiff does not contest and the voluminous submissions by plaintiff, the overwhelming evidence demonstrates that defendants are entitled to summary judgment dismissing plaintiff's complaint against them. Indeed, defendants have made "a prima facie showing that there is no evidentiary route that could allow a jury to believe that discrimination [or retaliation] played a role in their challenged actions,' " and plaintiff has failed to raise a bona fide triable issue of fact (Reyes, 112 A.D.3d at 806, 978 N.Y.S.2d 63, quoting Cenzon–Decarlo v. Mount Sinai Hosp., 101 A.D.3d 924, 927, 957 N.Y.S.2d 256 [2d Dept 2012], lv denied 21 N.Y.3d 858 [2013] ; see also Swan v. St. John's Univ., 116 A.D.3d 946, 947, 983 N.Y.S.2d 810 [2d Dept 2014] ).
While plaintiff requests that defendants be directed to provide discovery on these issues, he has failed to indicate what evidence he hopes to uncover or that discovery would lead to any relevant evidence which would provide a basis for resisting defendants' motion for summary judgment (see Williams v. Spencer–Hall, 113 A.D.3d 759, 760, 979 N.Y.S.2d 157 [2d Dept 2014] ; Lopez v. WS Distrib., Inc., 34 A.D.3d 759, 760, 825 N.Y.S.2d 516 [2d Dept 2006] ; Frith v. Affordable Homes of Am., 253 A.D.2d 536, 537, 676 N.Y.S.2d 513 [2d Dept 1998] ). Thus, plaintiff's cross motion must be denied.
CONCLUSION
Accordingly, defendants' motion for summary judgment dismissing plaintiff's second amended complaint with prejudice is granted. Plaintiff's cross motion for leave to interpose a third amended complaint and for summary judgment in his favor on his third, seventh, eighth, and ninth causes of action is denied in its entirety. Plaintiff's cross motion for leave to file a sur-reply and to strike portions of defendants' reply papers and memoranda of law is denied.
This constitutes the decision, order, and judgment of the court.