Dey v. Innodata, Inc.

ANINDO DEY, Plaintiff, v. INNODATA INC., Defendant.

Civil Action No. 18-0978 (ES) (MAH)

United States District Court, D. New Jersey

February 24, 2022

Not For Publication

OPINION

Esther Salas, U.S.D.J.

Plaintiff Anindo Dey sues his former employer, Innodata Inc., a digital services company, under federal and state law for alleged discrimination he experienced because of his race and national origin and for allegedly retaliating against him for reporting the discrimination. (D.E. No. 1 (“Complaint” or “Compl.”)). Before the Court are Defendant's motion for summary judgment (D.E. No. 104 (“SJ Motion”)), and a related motion by Plaintiff to strike certain evidence submitted in support of the SJ Motion (D.E. No. 108 (“Motion to Strike”)). Having considered the parties' submissions, the Court decides this matter without oral argument. Fed. R. Civ. Pro. 78(b); L. Civ. R. 78.1(b). For the reasons set forth below, the Court GRANTS-IN-PART and DENIES-IN-PART the SJ Motion. Because the Court need not resolve Plaintiff's evidentiary challenges to decide the SJ Motion, the Motion to Strike is denied without prejudice to Plaintiff's right to oppose introduction of the challenged evidence at a later stage of the litigation.

I.BACKGROUND^[1]

Dey was an employee at Innodata from 2013 to 2016. (Def. Reply SUMF ¶ 2). In July 2013, Dey began working for Innodata Private Limited, Innodata's subsidiary, as Vice President of Business Development in Noida, India. (Id. ¶¶ 14-15). As Vice President of Business Development Dey “was responsible for building sales in the U.S. for services that Innodata provided such as digital content.” (Id. ¶ 16). Dey originated one client, Book Dogs Books, for Innodata while in India, which generated approximately $500, 000 in revenue in or around 2013. (Id. ¶ 17). After some time in India, Dey requested a transfer to North America because he thought relocating would help him generate new business. (Id. ¶ 19). In February 2016, Innodata sponsored Dey's relocation to the United States. (Id. ¶ 20). Innodata loaned Dey $6, 250.00 to assist with his move to the United States, and in exchange Dey agreed to repay the loan with interest at the rate of 3.5% per annum on the unpaid balance. (Id. ¶¶ 22-25; see also D.E. No. 104-4, Abuhoff Decl., Exhibit C (“Promissory Note”)). The Promissory Note was due and payable in 48 equal installments of $135.00, payable twice monthly as an automatic salary reduction from each period beginning March 2016. (Def. Reply SUMF ¶ 26). However, the Promissory Note became immediately due and payable if Innodata no longer employed Plaintiff, for any reason, whether voluntary or involuntary. (Id. ¶ 27).

Once in the United States, Dey worked in a new role as a Client Partner, working out of a home office in Illinois while reporting to Innodata's headquarters in Hackensack, New Jersey. (Id. ¶ 20). As a Client Partner Dey's job responsibilities included, inter alia “orchestrating company resources, in the response and delivery of Innodata services, to information services companies and data-driven enterprises”; “[b]uilding, enhancing and executing long term client relationships and communication at the C-level, with other key executives and key decision makers”; “[q]ualify[ing] client specific opportunities and develop[ing] pipeline jointly with the Business Units”; and “[h]elp[ing] to win new business with high level relationships, sales and negotiation skills and client-oriented communications.” (Id. ¶ 31). In his role as Client Partner, Dey reported to Lisa Indovino, a Senior Vice President of the company. (Id. ¶¶ 4 & 34).

Dey, who is of Asian ethnicity and Indian origin, claims that Indovino discriminated against him because of his national origin, ethnicity, and race. (Compl. ¶¶ 16 & 41-56). Dey states that Indovino's discriminatory and harassing nature directed towards him included, inter alia, criticism, a “hostile, degrading, derogatory, and intimidating” tone, “verbal berating, ” and “screaming at him” for most actions he took. (Pl. Supp. SUMF ¶¶ 17, 20 & 21).^[2] According to Dey, Indovino's criticism of him had “strong racist overtones.” (Id. ¶ 21). Dey also claims that Indovino made derogatory comments related to ethnicity and national origin: she commented on the inability of the Asian operations team to conduct business coherently, stated that she loathes the fact that the delivery centers are in Asia and that this location was the core of the problem, stated that she “can barely understand” what the offshore teams say on phone calls, and on one occasion, as Dey was in the middle of an explanation, she complained that “this explanation is too long and you Indians have no ability to speak in short sentences clearly.” (Id. ¶¶ 18, 19, 22 & 24). According to Dey, Indovino's hostile tone “was directed solely at Dey and people of his national origin, race, and/or color.” (Id. ¶ 24).

On September 12, 2016, Dey emailed Innodata's CEO, Jack Abuhoff, to complain about the way Indovino was treating him. (Def. Reply SUMF ¶ 50). In response to Dey's email, Abuhoff retained Verita, LLC, an independent investigation company, to investigate Dey's claims. (Id. ¶ 56; Def. Resp. SUMF ¶ 26). While the investigation was ongoing, Abuhoff gave Dey the option to be assigned to different responsibilities outside of Indovino's domain and informed Dey that the director of Human Resources would join calls between Dey and Indovino. (Def. Reply SUMF ¶¶ 53 & 54). Dey opted to keep his current responsibilities, thus staying within Indovino's domain. (Id. ¶ 54).

Jacqueline Sacus conducted the investigation on behalf of Verita. (Id. ¶ 57). Sacus interviewed six Innodata employees, including Dey and Indovino. (Id. ¶ 58). Sacus generated a report based on the investigation. (Abuhoff Decl., Exhibit I (“Verita Report”)).^[3] After the investigation, Innodata claims that Abuhoff spoke to Dey to discuss both the investigation and Dey's inadequate performance; Abuhoff also offered to provide Dey with coaching and requested that Dey schedule a follow-up meeting. (Def. Reply SUMF ¶¶ 77-78).^[4] According to Abuhoff, Dey never scheduled the follow-up meeting. (Id. ¶ 81). According to Dey, however, there was no discussion, and Abuhoff never offered to provide coaching in the first place. (Id. ¶¶ 77-78 & 81; Def. Resp. SUMF ¶ 43).

On November 8, 2016, Dey filed a charge of discrimination with the Equal Employment Opportunity Commission (“EEOC”). (Def. Reply SUMF ¶ 83). The following day, Dey presented to the emergency room complaining of chest tightness, and he underwent heart surgery. (Id. ¶ 71; Def. Resp. SUMF ¶¶ 47-48). According to Dey, the stress caused by Indovino led to him suffering a heart attack. (Def. Reply SUMF ¶ 76). And Dr. Rajat Deo, MD, MTR opined, to a reasonable degree of medical certainty, that Dey's stress-induced state of mind and emotional/psychological status contributed to his acute presentation with unstable angina. (Def. Resp. SUMF ¶ 53; D.E. 107-1, Nitschke Decl., Exhibit C at 4). As a result of the surgery, Dey took ten days off from work in order to recover. (Def. Reply SUMF ¶ 72).

Shortly after his return to work, on December 21, 2016, Innodata terminated Dey from his employment. (Id. ¶ 82). According to Innodata, it terminated Dey because of his poor performance. (Id.). Dey, however, believes that his termination was an act of discrimination against him based on his race and national origin and/or that he was retaliated against in response to his complaints of discrimination. (See generally Compl.).

On July 28, 2017, Dey filed suit against Innodata bringing claims for: (i) discrimination based on national origin pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq. (Count I); (ii) discrimination based on race and ethnicity under Title VII (Count II); (iii) violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et seq. (“ADA”) (Count III); (iv) retaliatory discharge under Illinois common law (Count IV); (v) discrimination based on national origin, race and/or color under the Illinois Human Rights Act (“IHRA”), 775 Ill. Comp. Stat. Ann. 5/6-101(A) (Count V); and (vi) violations of the Illinois Whistleblower Act (“IWA”), 740 ILCS 174/20 (Count VI). (Compl. ¶¶ 42-89). Dey filed the Complaint in the Northern District of Illinois, but the case was transferred to this District upon Innodata's motion. (D.E. Nos. 9 & 35). Innodata answered the Complaint and later asserted counterclaims for breach of contract, unjust enrichment, and promissory estoppel based on Dey's failure to repay the Promissory Note. (D.E. No. 82, Amended Answer to Complaint, Counterclaim). The case proceeded to discovery, and on June 22, 2020, Innodata filed the instant motion for summary judgment, seeking judgment on all of Dey's claims and on its counterclaims. (See generally SJ Motion). Dey opposes the SJ Motion and moves to strike some of Innodata's evidence submitted in support. (D.E. No. 109-1 (“Pl. Opp. Br.”); Motion to Strike).

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), a “court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” The mere existence of an alleged disputed fact is not enough. Anderson v. Liberty Lobby, Inc., 477 U.S 242, 247 (1986). Rather, the opposing party must prove that there is a genuine dispute of a material fact. Id. at 247-48. An issue of material fact is “genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id. at 248. A fact is “material” if under the governing substantive law, a dispute about the fact might affect the outcome of the...