Price v. Cushman & Wakefield, Inc.

808 F.Supp.2d 670

Mark B. PRICE, Plaintiff,

v.CUSHMAN & WAKEFIELD, INC. and Joanne Podell, Defendants.

No. 08 Civ. 8900(RJH).

United States District Court, S.D. New York.

Sept. 7, 2011.

Mark H. Moore, New York, NY, for Plaintiff.

Robert Allen Sparer, Sheryl A. Orwel, Clifton Budd & Demaria, LLP, New York, NY, for Defendants.

MEMORANDUM OPINION AND ORDER

RICHARD J. HOLWELL, District Judge:

Plaintiff commenced this action on October 16, 2008, against defendants Cushman & Wakefield, Inc. (“Cushman”) and Joanne Podell, alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. Law § 290 et seq. , and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8–101 et seq.; breach of contract; violations of the duty of good faith and fair dealing; failure to pay commissions in violation of N.Y. Lab. Law § 190; unjust enrichment and quantum meruit; and tortious interference with contractual relations. Upon defendants' motion to dismiss, the Court dismissed the claims against Cushman for violations of the covenant of good faith and fair dealing and for unjust enrichment, as well as the claims against Podell for tortious interference. Price v. Cushman & Wakefield, Inc., 2009 WL 3075599 (S.D.N.Y. Sept. 26, 2009). Now before the Court is defendants' motion for summary judgment on the remaining claims. For the reasons that follow, that motion is GRANTED in part and DENIED in part.

BACKGROUND

I. The Parties

Defendant Cushman is a commercial real estate services firm offering, among other things, tenant and landlord brokerage services. (Defs.' Rule 56.1 Stmt. ¶ 1.) Defendant Podell was a senior broker in Cushman's Retail Brokerage Group during the relevant time period, and has been employed by Cushman since August 2002, when Cushman recruited her from New Spectrum Newmark Real Estate (“Newmark”). ( Id. ¶¶ 2, 4.) By the spring of 2006, Podell had over fourteen years of experience as a commercial real estate broker. ( Id. ¶ 3.)

Price worked as a broker in Cushman's New York City office from January 2003 through his termination on October 23, 2006. ( Id. ¶¶ 7.) Prior to becoming a broker, Price was a pharmacist for approximately twenty years and currently works as a pharmacist. ( Id. ¶ 8.) In 2000, Price decided to become a broker, and began work at Eastern Consolidated (“Eastern”), which specialized in commercial properties. (Price Decl. ¶ 3.)

II. Price Begins Employment with Cushman

In December 2002, two of Price's senior colleagues at Eastern, John Epstein and Charles Kingsley informed Price that Cushman was recruiting them and asked whether he wished to join them. (Price Decl. ¶ 5; See Burke Affirmation (“Burke Affir.”) Ex. S (“Kingsley Dep.”) at 15–16.) Epstein, Kingsley, and Price, along with Yoav Olsner, (collectively, the “Eastern Group”) engaged Howard Adler, a partner at the time with Fried, Frank, Harris, Shriver & Jacobson LLP, to negotiate their contracts with Cushman. (Defs.' Rule 56.1 Stmt. ¶ 52.) During the negotiations, Adler met with the Eastern Group about their contracts' terms; at least three of these meetings were held. ( Id. ¶ 53.) Price unsuccessfully negotiated for an expense account but did obtain a side letter to his contract permitting him to continue working on real estate transactions with his former employer for twelve months. ( Id. ¶ 55; Burke Affir. Ex. GG.) Price signed his contract, paragraph 10 of which is a jury waiver for actions “arising out of” the contract. (Burke Affir. Ex. R.) Price did not ask his counsel to negotiate this provision. (Defs.' Rule 56.1 Stmt. ¶ 58.)

The Eastern Group joined Cushman's Financial Services Brokerage Group in January 2003, where Price was a junior broker on the team. ( Id. ¶ 9; Kingsley Dep. at 30.) In early 2004, Price was asked to leave the Eastern Group team. (Kingsley Dep. at 44–45; Burke Affir. Ex. E (“Price Dep.”) at 958–61; Price Decl. ¶ 10.) Thereafter, Price worked independently at Cushman until Podell brought him onto her team in mid–2004. (Price Dep. at 966–67; Price Decl. ¶¶ 10, 11; Defs.' Rule 56.1 Stmt. ¶ 6.) According to Price, he and Podell negotiated an oral agreement at the start of their working relationship under which Price would receive a 20% commission on transactions they worked on that Podell originated, and a 50% commission on transactions that he originated. (Price Decl. ¶ 14.) According to Podell, the oral agreement only provided a “goal” for Price's compensation to be “at least the $200,000 he had been making.” (Burke Affir. Ex. C (“Podell Dep.”) at 219.)

III. Death of Price's Son and Price's Growing Religiosity

Price's son, Noah, born May 9, 2002, was diagnosed with a malignant brain tumor and hospitalized for most of his life until his death on October 1, 2005. (Defs.' Rule 56.1 Stmt. ¶¶ 60, 61.) Podell and Cushman were aware of Noah's illness and death. ( Id. ¶ 62.)

Although Price had attended temples from the Chabad branch of Judaism since 2000, in 2003 and 2004, he became much more committed to Chabad. (Price Decl. ¶ 31; see also Price Dep. at 316–17, 327.) Price became stricter in his religious practices, keeping kosher, learning Hebrew, and going to temple and praying more often. ( See Price Decl. ¶ 31; Price Dep. at 311–13, 332–33.) The Chabad community from Price's synagogue also helped Price by giving him a special Torah scribed for Noah, by offering babysitting and cooking services, and by assisting Price's family financially. (Price Dep. at 320–22, 330–31; Price Decl. ¶ 32.)

Price's increased religiosity also manifested itself in several ways at his workplace. He alleges that his religiosity aroused antagonism from Podell, who is Jewish but does not follow the teachings of Chabad or all of the religious practices that Price did during the relevant period. ( See Podell Dep. at 239–49.) The incidents comprising the basis for that allegation are detailed below.

A. Instruction To Move Siddurs and To Keep the Workplace Neutral

In mid–2005, Price brought three or four siddurs (prayer books) to his cubicle. (Price Decl. ¶ 37; see also Price Dep. at 263.) ¹ Price would read from the siddurs at work during the day whenever he felt the need to be comforted. (Price Dep. at 342.) According to Price, when Podell spotted the siddurs at Price's cubicle, she told him to move them out of sight. (Price Decl. ¶ 37; Price Dep. at 263.) Podell denies that she knew that Price had siddurs or that she told him to keep them out of sight. (Podell Dep. at 262–63.)

According to Price, Podell also made two comments at other times in 2005 disparaging him for his failure to keep the workplace neutral. First, Podell told Price, “You have to be generic,” raised her pocketbook, and said, “This is what people respect.” (Price Decl. ¶ 38.) And second, Podell reprimanded Price about a discussion he had with a client from Singapore regarding Chabad doctrine, saying that he should limit his discussions to business. ( Id. ¶ 39.) Again, Podell denies telling Price that he had to keep the workplace neutral. (Podell Dep. at 262–63.)

B. E-mails During Rosh Hashanah

Noah's funeral took place on October 2, 2005. (Defs.' Rule 56.1 Stmt. ¶ 66.) After the funeral, Price desired to return to work as soon as possible to help distract him from thoughts of his son. ( Id. ¶ 68.) However, Rosh Hashanah was observed for the three days following the funeral, and Price did not go to work during that time. ( Id. ¶ 69.) Price testified that he requested not to receive e-mails on Rosh Hashanah, but nevertheless received e-mails from Podell during that time. (Price Dep. at 510–11, 514–15; see also Reingold Decl. at 65; Moore Decl. Ex. 52.) Afterwards, Price had a conversation with Podell in which he informed her that he “didn't appreciate that she sent the e-mails,” to which Podell responded by saying “get out of my office or something to that effect.” (Price Dep. at 514–15.) Podell denies that Price requested not to receive e-mails on Rosh Hashanah. (Podell Dep. at 269.)

C. Instruction To Shave

As part of the Jewish mourning process, Price was not supposed to shave for one month following his son's death. (Price Dep. at 524; Price Decl. ¶ 42.) At some point during this period, Podell informed Price that his unshaven look did not “present well.” (Price Dep. at 568.) Price explained that he was not supposed to shave, and Podell told him that if that were the case, she would not take him to any meetings. (Price Dep. at 568; Price Decl. ¶ 42.) Eventually, Price did shave as a result of this interaction. (Price Dep. at 569.) Podell denies that she told Price that he could not attend business meetings unless he shaved. (Podell Dep. at 267–68.)

D. Comment Regarding Kapparot

Price also testified that sometime in October 2005, Podell told him that kapparot, a Chabad religious ritual, was a “barbaric” practice. (Price Dep. at 576.) Podell denies making this comment. (Podell Dep. at 255–56.)

E. Interference with Price's Praying at His Synagogue

Prior to Noah's death, Price usually arrived at work at 8:00 a.m. or earlier. (Price Dep. at 411–412.) After Noah's death, Price attended the Chabad temple before work, saying the traditional mourning prayers, the kaddish. ( See Price Decl. ¶ 43.) This resulted in a later usual arrival time, around 8:30 to 9:00 a.m. ( See Defs.' Rule 56.1 Stmt. ¶ 77; Price Decl. ¶ 44; Price Dep. at 413.) When he attended these services, he wore tefillin, a small leather box with straps holding parchment from sections of the Torah, which a Jewish mourner is to wear for nine months after a loved one's passing. ( Id.)

A few weeks after Noah's death, Price arrived one day at work at 9:15 a.m. (the “Late Arrival Incident”). (Price Decl. ¶ 44; Price Dep. at 414–15.) That morning, Podell had been looking for some paperwork and had contacted Price. ( See Defs.' Rule 56.1 Stmt. ¶ 82; see also Podell Dep. at 270; ...