Sethi v. Narod

12 F.Supp.3d 505

Harsharan SETHI, Plaintiff

v.Randy NAROD, Erica Lee, Deborah Morrissey and Cambridge Who's Who Publishing, Inc., Defendants.

No. 11–CV–2511 MKB.

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

Signed April 2, 2014.

Harsharan Sethi, pro se.

Randy Scott Zelin, A. Jonathan Trafimow, Juan L. Garcia, Moritt Hock & Hamroff LLP, Garden City, NY, for Defendants.

MEMORANDUM & ORDER

MARGO K. BRODIE, District Judge.

Plaintiff Harsharan Sethi brought the above-captioned action against Defendants Randy Narod, Erica Lee, Deborah Morrissey, Mitchel Robbins, Brian Wasserman, Stanley Pitkiewicz, Richard Someck, Israel Dorinbaum, Neil Schorr, Donald Trump, Jr., and Cambridge Who's Who Publishing, Inc. (“CWW”) alleging race and national origin discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”). Plaintiff also brought claims against all Defendants under the Fair Labor Standards Act (“FLSA”) and the New York State Labor Law (“NYLL”), alleging failure to pay overtime compensation and violation of recordkeeping requirements. Defendants moved for summary judgment on all claims. At oral argument on May 9, 2013, the Court granted Defendants' motion for summary judgment as to Plaintiff's FLSA claim against individual Defendants Mitchel Robbins, Brian Wasserman, Stanley Pitkiewicz, Richard Someck, Israel Dorinbaum, Neil Schorr, and Donald Trump, Jr., and Plaintiff's claims for violation of the record-keeping provisions of the FLSA and the NYLL. After oral argument Plaintiff cross-moved for summary judgment on his remaining claims. By Memorandum and Order dated September 30, 2013, 974 F.Supp.2d 162 (E.D.N.Y.2013) (“Sept. 30, 2013 Decision”), the Court denied Defendants' and Plaintiff's motions for summary judgment as to Plaintiff's FLSA and the NYLL claims for failure to pay overtime compensation. The Court deferred ruling on the parties' motions for summary judgment as to Plaintiff's Title VII and NYSHRL claims, pending the submission of additional documentation as set forth in the Sept. 30, 2013 Decision. The Court has reviewed the additional submissions of the parties. For the reasons set forth below, the Court denies Plaintiff's motion for summary judgment as to his Title VII and NYSHRL claim and grants Defendants' motion for summary judgment as to Plaintiff's Title VII and NYSHRL claim.

I. Background

The Court assumes familiarity with the facts of this proceeding which are set forth in detail in the Court's Sept. 30, 2013 Decision. The Court provides a summary of the facts necessary to explain its decision.

a. CWW and the individual Defendants

CWW is a private company that “assists its members with strategies for enhancing their professional profiles.” (Def. Mem. 3.) Randy Narod is the President of CWW and owns 85 percent of CWW. (Narod Dep. 5:22–6:2, 8:12–2; Pl. 56.1 ¶¶ 65–66.) Defendant Erica Lee is the Chief Operating Officer and Chief of Operations and Logistics for CWW. (Lee Decl. ¶ 1; Pl. 56.1 ¶ 32.) Deborah Morrissey is the Vice President of Human Resources for CWW. (Morrissey Dep. 5:19–24; Pl. 56.1 ¶ 1.) Plaintiff was interviewed for his position at CWW by both Narod and Lee. (Def. 56.1 ¶ 11; Pl. 56.1 ¶ 115; Sethi Dep. 39:25–40:2.) According to Narod, Lee made the decision to hire Plaintiff and Lee had the authority to send a termination severance agreement to Plaintiff without discussing it with Narod in advance. (Narod Dep. 38:5–21, 52:12–53:2; Pl. 56.1 ¶ 94.) According to Lee, she made the recommendation to hire Plaintiff to Narod, and Narod accepted the recommendation and approved the decision to hire Plaintiff. (Lee Decl. ¶ 17.)

b. Plaintiff's educational background and work at CWW

Plaintiff was born and educated in India. (Sethi Dep. 9:21–10:19.) He obtained a bachelor's degree in business administration, with a major in finance and a minor in business management. (Sethi Decl. Ex. 3.) His professional experience prior to CWW included working as a manager of information systems for approximately seven years. (Id. ) Plaintiff worked as the Director of Management Information Systems (“MIS Director”) at CWW from July 21, 2008 to May 10, 2010. (Am. Compl. ¶ 2; Answer ¶ 2.) Plaintiff reported to Lee. (Def. 56.1 ¶ 25; Sethi Decl. ¶ 15.)

c. May 2009 USA Honors Society email

In approximately May 2009, Plaintiff received an email from the “USA Honors Society” (“Honors Society”), a new company established at CWW. (Am. Compl. ¶¶ 27–28; Sethi Dep. 82:16–86:4.) The email indicated that Plaintiff had been selected for membership in the Honors Society for his contributions to the profession. (Am. Compl. ¶¶ 27–28; Sethi Dep. 82:16–86:4.) Plaintiff believed that the representations in the email were false, and reported his concerns to Lee. (Am. Compl. ¶¶ 27–28; Sethi Dep. 82:16–86:4.) According to Lee, “Plaintiff believed [the Honors Society] was a separate entity [from CWW] and that customers should be advised of this.” Although she explained otherwise, Plaintiff continued to believe that CWW was engaged in “wrongful business offerings.” (Lee Decl. ¶ 36.)

After this incident, Plaintiff claims he experienced changes in his duties and responsibilities, including a unilateral increase in his work hours. (Sethi Dep. 86:5–90:8.) Plaintiff claims that he endured long hours of work in retaliation for questioning things such as the Honors Society, when he would receive overtime pay, and why he had to provide technical support to Narod's personal businesses outside of CWW. (Pl. 56.1 ¶¶ 127–30; Sethi Dep. 88:22–89:21.) Plaintiff alleges that as part of the “abus[e]” he subsequently experienced, beginning in September 2009, CWW's executives and managers constantly remarked about Plaintiff's Indian heritage, including calling him “Harshidoodle” or “Harshipoodle” in front of other employees.¹ (Am. Compl. ¶ 31.)

d. November 2009 confrontation with Narod

On November 10, 2009, Plaintiff attended a meeting with Narod, Lee and Morrissey. (Sethi Decl. ¶ 26; Sethi Dep. 130:19; Lee Decl. ¶ 52.) According to Plaintiff, during this meeting Narod “physical[ly] assault[ed]” him. (Sethi Dep. 124:2; see also Pl. 56.1 ¶¶ 133–134; Sethi Dep. 120:2–125:25.) Plaintiff accused CWW of illegality, telling Narod, “This company is illegal. What you are doing here is illegal.” (Sethi Dep. 122:4–5.) Narod allegedly responded, “You f––king Indian, what do you think about yourself? I will make sure you are sent back to India. You don't know who you are dealing with. You fear my wrath in your dreams.” (Pl. 56.1 ¶ 133; Sethi Dep. 116:21–125:19.) Narod also told Plaintiff, “[I]f this is illegal, you are part of it, so we both will go to jail.” (Sethi Dep. 124:20–22.) Plaintiff claims that during this meeting Narod “charged” at him, slapped his face, and “chested” him, hitting Plaintiff with his chest. (Id. at 122:19–123:21.) Defendants admit that a meeting occurred, but deny Plaintiff's allegations concerning what happened at the meeting. (Def. Cross–Mot. 56.1 ¶¶ 132–34.)

e. Chief Technology Officer position

In January 2010, CWW created a Chief Technology Officer (“CTO”) position. (Def. 56.1 ¶ 52; Pl. Resp. 56.1 ¶ 52.) Lee announced via email on January 13, 2010, that CWW was about three days away from hiring a CTO. (Docket Entry No. 84–1 at 1–2.) Lee wrote that all of the applicants had over twenty-plus years of experience and had managed technology for large companies. (Id. ) Plaintiff forwarded the announcement to Narod and asked, “[a]ny reason I was not given this opportunity?” (Id. ) In response, Narod asked Plaintiff if he had the experience necessary for the position. (Id. ) Plaintiff responded, “Yes [t]ry [m]e.” (Id. ) Narod advised Plaintiff that he would have to go through the interview process, as the applicants had “high level” experience. (Id. ) Plaintiff responded, “If done with an open mind, I am all for it.” (Id. ) Narod forwarded Plaintiff's inquiry to Lee. (Docket Entry No. 80–1 at 2.)

According to Lee, Plaintiff “requested an opportunity to apply for the [CTO] position.” (Lee Dep. 57:17–19.) At that time, CWW was in the “final stage” of selecting a CTO, having posted the position on websites including CareerBuilder and Monster, vetted candidates and given a “soft response” to a candidate indicating that CWW was “leaning ... that person's way” but was still discussing the position. (Id. at 57:17–58:14.) CWW was looking for a candidate with a wide range of skill sets. (Id. at 59:5–7.) After Plaintiff inquired about the CTO position, Lee emailed Plaintiff and told him that the top candidates had extensive programming experience and had taken projects from inception to execution on their own. (Docket Entry No. 80–1 at 2; Sethi Dep. 167:9–18.) She wrote that the candidates were willing to write code as well as manage CWW business practices, and that CWW had not approached Plaintiff about the position because CWW was “looking for candidates that have executed from a business process, software development side and had strong programming backgrounds.” (Docket Entry No. 80–1 at 2.) Plaintiff does not recall if he responded to this email. (Sethi Dep. 168:19–168:8.) Defendants claim that Plaintiff never applied for the CTO position. (Lee Decl. ¶ 57.)

CWW hired Gerard Mott for the CTO position. (Def. 56.1 ¶ 56; Pl. Resp. 56.1 ¶ 56.) Mott had served as the CTO at a number of large organizations, including WebMD, and had acted as “lead management” before. (Lee Dep. 60:18–25.) According to Lee, Mott was brought on because of his years of experience in big business and his large corporate CTO experience. (Id. at 61:16–23.) Mott also had experience in managing programmers and “taking projects from inception.” (Id. at 63:17–65:6.) Lee did not believe that Plaintiff could “tak[e] on the position of the CTO at the time” because of his then current position. (Id. at 59:5–14.) Plaintiff admitted that he did not have the experience CWW was looking for,...