Sethi v. Randy Narod, Erica Lee, Deborah Morrissey & Cambridge Who's Who Publ'g, Inc.

974 F.Supp.2d 162

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.

Sept. 30, 2013.

Harsharan Sethi, Plainview, NY, 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 asserted 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 record-keeping 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, Richard Someck, DonaldTrump, Jr., Neil Schorr, Stanley Pitkiewicz and Israel Dorinbaum, 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 all of his remaining claims.¹ For the reasons set forth below, the Court denies Defendants' and Plaintiff's motions for summary judgment as to the FLSA and the NYLL claims. The Court defers ruling on Defendants' and Plaintiff's motions for summary as to the Title VII and the NYSHRL claims and directs Plaintiff to submit additional documentation as specifically set forth below on or before October 14, 2013. Defendants shall file any objections to those documents on or before October 28, 2013.

I. Procedural Background

Plaintiff was represented by counsel from the filing of the Complaint in this proceeding through oral argument on Defendants' motion for summary judgment. ( See Docket Entry Nos. 1, 62, 63, and Order dated June 17, 2013.) After oral argument on Defendants' motion for summary judgment, Plaintiff terminated his attorney and is now proceeding pro se. Plaintiff thereafter sought to file additional arguments in opposition to Defendants' motion, (Docket Entry No. 62), and was permitted to do so by a letter not to exceed five pages. (Order dated June 18, 2013.) Plaintiff submitted a five-page letter enclosing over 3,000 pages of exhibits. (Plaintiff's Letter dated June 24, 2013, Docket Entry No. 67.) Plaintiff also filed a cross-motion for summary judgment with additional exhibits in excess of 2,000 pages. (Pl. Cross–Mot., Docket Entry No. 73.) Plaintiff noted that many of the documents he submitted were being offered for the purpose of trial. (Plaintiff's Letter dated July 3, 2013, Docket Entry No. 70.) Plaintiff also requested additional discovery. (Plaintiff's Letter dated Aug. 6, 2013, Docket Entry No. 75.) In addition, for the first time Plaintiff asserted conspiracy and retaliation claims. (Pl. Cross–Mot., Docket Entry No. 73.)

The Court held a conference on August 15, 2013 to discuss Plaintiff's submissions. ( See Minute Entry dated Aug. 15, 2013.) The Court struck the additional documents submitted by Plaintiff and informed Plaintiff that documents that he sought to present at trial should be submitted at a later date if the Court denied Defendants' motion for summary judgment. (Aug. 15, 2013 Conference.) The Court also denied Plaintiff's request for additional discovery. (Minute Entry dated Aug. 15, 2013.) The Court noted that the discovery deadline was August of 2012 and that, to the extent Plaintiff was seeking documents that were demanded from Defendants but were never provided, his counsel should have moved to compel their disclosure. (Aug. 15, 2013 Conference.) The Court also noted that because the additional discovery sought by Plaintiff related to fraud that was allegedly being committed by Defendants against the government and Plaintiff, and because there are no fraud allegations in the Complaint before the Court, the discovery sought by Plaintiff did not appear to be relevant to Plaintiff's claims of discrimination or violations of the FLSA and the NYLL.

The Court also struck Plaintiff's new retaliation and conspiracy claims, and denied Plaintiff's application for leave to amend the complaint as untimely and unduly prejudicial.² ( See Minute Entry dated Aug. 15, 2013.) Plaintiff's action was commenced two years prior in May 2011, Plaintiff was represented by counsel from the commencement of the proceeding, Plaintiff has filed multiple actions against some of the Defendants, including seven proceedings in New York State Supreme Court challenging, among other things, his termination and asserting a claim for retaliation, ( see New York State Supreme Court Index Nos. 2499/2011, 7904/2011, 11750/2011, 14021/2011, 17178/2011, 1035/2012, 14058/2012), and the Court noted Plaintiff's intimate involvement with the proceeding, including his presence at the oral argument of Defendants' summary judgment motion and his many objections and suggestions to his counsel. (Aug. 15, 2013 Conference.) The Court accepted Plaintiff's cross-motion for summary judgment, and directed Defendants to respond to Plaintiff's summary judgment motion as to the Title VII and NYSHRL race and national origin discrimination claims, as well as the FLSA and the NYLL overtime claims. ( See Minute Entry dated Aug. 15, 2013).

II. Factual Background

a. CWW and the Individual Defendants

Randy Narod is the President of CWW and owns 85% of CWW. (Deposition of Randy Narod (“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. (Declaration of Erica Lee (“Lee Decl.”) ¶ 1; Pl. 56.1 ¶ 32.) Plaintiff was interviewed for his position at CWW by both Narod and Lee. (Def. 56.1 ¶ 11; Pl. 56.1 ¶ 115; Deposition of Harsharan Sethi (“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.) During some period of his employment, Plaintiff was required to obtain permission from Lee before leaving work at the end of the day. (Deposition of Erica Lee (“Lee Dep.”) 103:12–104:18; Pl. 56.1 ¶ 54.) Lee also generally provided Plaintiff with his assignments. (Lee Dep. 166:15–20; Pl. 56.1 ¶ 48.)

Deborah Morrissey is the Vice President of Human Resources for CWW. (Deposition of Deborah Morrissey (“Morrissey Dep.”) 5:19–24; Pl. 56.1 ¶ 1.) Morrissey's

responsibilities include “recruiting, hiring, dismissals, personnel evaluation, benefits, organizational development with the executive board, payroll and updating policies that were decided by the executive board, negotiations with benefit vendors and paycheck vendors, and managing a small group of HR individuals to complete all duties related to both the HR department as well [as] assisting to report sales figures for the sales representatives.” (Morrissey Dep. 10:20–11:9.) Her decisions to hire or fire, or to modify salary, hours or terms of employment had to be approved by Narod. (Declaration of Deborah Morrissey (“Morrissey Decl.”) ¶ 29.) She was also responsible for making “sure that files were kept in order” and “for stepping in as a manager for the sales managers if Erica Lee was not present, opening other offices and supervising those offices.” (Morrissey Dep. 10:20–12:18; Pl. 56.1 ¶ 2.) Morrissey also processed payroll and certain documents to implement Plaintiff's termination. (Morrissey Decl. ¶ 31.)

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. (Declaration of Harsharan Sethi (“Sethi Decl.”) Ex. 3.) His professional experience prior to CWW included working as a manager of information systems for approximately seven years. ( Id.) Plaintiff had various technical certifications. (Def. 56.1 ¶¶ 3–4; Pl. Resp. 56.1 ¶¶ 3–4.) Plaintiff claims that his certifications, which he earned in 1999–2000, are now obsolete. (Sethi Decl. ¶ 57.)

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 was hired after responding to a job posting for a network administrator. (Def. 56.1 ¶ 8; Pl. Resp. 56.1 ¶ 8.) Plaintiff reported to Lee. (Def. 56.1 ¶ 25; Sethi Decl. ¶ 15.) When Plaintiff started his job with CWW in July 2008, Plaintiff's designated work hours were Monday through Thursday from 9:00 AM to 5:30 PM and Friday from 9:00 AM to 5:00 PM. (Def. 56.1 ¶ 34; Pl. Resp. 56.1 ¶ 34.) Plaintiff's hours were subsequently changed to 8:30 AM to 5:00 PM Monday through Friday. (Def. 56.1 ¶¶ 34–35; Pl. Resp. 56.1 ¶¶ 34–35). In 2009, Plaintiff's hours were changed again, to 8:30 AM to 5:30 PM. (Lee Decl. Ex. M at 21; Pl. Resp. 56.1 ¶ 35; Pl. Cross–Mot. Reply Ex. 4.) In February 2010, Lee told Plaintiff that his hours were Monday through Thursday 8:30 AM to 5:30 PM and Friday 8:30 AM to 6:00 PM. (Pl. Cross–Mot. Reply Ex. 4.) Plaintiff's starting salary was $75,000 annually, and after a probationary period his...