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August 20, 1992

ALAZAR DESSIE, Plaintiff, against GENERALE BANK, Defendant.


The opinion of the court was delivered by: CHARLES H. TENNEY

TENNEY, District Judge

 This diversity case, brought under New York's Human Rights Law, N.Y. Exec. Law § 296 (McKinney 1982 & Supp. 1992), involves a claim of employment discrimination on the basis of race and/or national origin. It was tried before a jury which found in favor of the defendant Generale Bank on plaintiff's claim of wrongful termination, but found in favor of the plaintiff Alazar Dessie and awarded him $ 200,000 on his claim that the defendant discriminated against him between May 16, 1988 and January 15, 1990 by inadequately compensating him. The jury also awarded the plaintiff damages for mental anguish in the amount of $ 40,000. Defendant Generale Bank has moved for entry of an order granting judgment as a matter of law, pursuant to Fed. R. Civ. P. 50(b), on Mr. Dessie's claim of discriminatory treatment in the determination of his salary or, in the alternative, reducing the jury's award on that claim to not more than $ 84,000. Defendant also moves for judgment as a matter of law on Mr. Dessie's claim for damages for mental anguish. For the reasons set forth below, the motion is granted.


 Plaintiff Alazar Dessie is a Black man who, at the time of his employment by defendant, was an Ethiopian citizen. Tr. 97, 100; Pre-Trial Order ("PTO") § 5 P 1. Defendant Generale Bank is a bank organized under the laws of Belgium whose head office is located in Brussels, Belgium. PTO § 5 P 2. Generale Bank has branches throughout Belgium and operates in more than thirty countries. Id. In April 1984, Mr. Dessie was hired by Ian Messer, the Chief Executive Officer and General Manager of a recently established New York branch of Generale Bank, to assume the position of Group Vice President, Marketing. Tr. 108, 112; Ex. 2; PTO § 4, P 1; § 6 P 4-7. Mr. Dessie had initially worked with Mr. Messer at the Continental Illinois National Bank & Trust Co. and had later switched to The Gulf Bank, K.S.C. at Mr. Messer's invitation. Tr. 102, 104-05; PTO § 6 P 2-3. At the same time that he hired Mr. Dessie, Mr. Messer also hired a man named Hans Neukomm to serve as the branch's Executive Vice President and Treasurer. PTO § 6 P 8. As of at least February 1985, if not earlier, Patrick Speeckaert was also employed by the New York branch as the person in charge of the operations department. Tr. 117. Between April 1984 and May 1988, Mr Dessie received two promotions -- to Senior Vice President and then Executive Vice President -- and five salary increases. Tr. 116, 124, 126, 133, 136.

 In May 1988, Mr. Messer was relocated by Generale Bank to its London office. Tr. 137; PTO § 6 P 21, 25. Upon Mr. Messer's reassignment, Mr. Dessie was appointed General Manager of the New York branch, although Mr. Messer retained the title of Chief Executive Officer. Exs. H, I; PTO § 6 P 22. Mr. Dessie testified at trial that Mr. Messer retained this title as a convenience so that his benefits would not be disrupted close to his approaching retirement. Tr. 160-61. As of June 1988, however, although both Mr. Neukomm and Mr. Speeckaert reported to Mr. Dessie, they both were more highly compensated than he was. Tr. 189, 393-95; PTO § 6 P 26. In June of 1989, Guy Dahin, the General Treasurer of Generale Bank, was appointed Chief Executive Officer of the New York branch, effective in November of that year. Tr. 861, 863-64; Ex. 35. In January 1990, one and a half years after his promotion to General Manager, Mr. Dessie was notified that his position was being eliminated. Tr. 297-98; Ex. 58; PTO § 6 P 62. His salary at that time was $ 220,000. *fn1" Tr. 193, 204; Exs. 37, 38; PTO § 6 P 41.

 In May 1990, Mr. Dessie commenced this action against Generale Bank in which he asserted that he was wrongfully terminated by Generale Bank and that he had been paid less from the period of May 1988 until his termination because of his race and/or national origin. PTO § 4 P 1-2. In addition to compensatory damages, Mr. Dessie sought damages for mental anguish, humiliation and emotional distress caused by his termination. PTO § 4 P 1(b). Trial of this case began on December 2, 1991. Tr. 1. On December 12, 1991 the court charged the jury according to a three-part "pretext" or McDonnell Douglas analysis which required Mr. Dessie to prove, inter alia, a prima facie case of discrimination in his compensation by establishing the following facts by a preponderance of the evidence: (1) that he was a member of the class protected by the statute; (2) that he was paid lower salaries and bonuses than the employees whose salaries were the subject of comparison; (3) that he did work equal to those employees; and (4) that such disparate treatment occurred in circumstances giving rise to an inference that Generale Bank discriminated against him on the basis of his race and/or national origin. Tr. 1282-85. The jury was then instructed that if it found that Mr. Dessie established a prima facie case, it should then consider whether Mr. Dessie had proved by a preponderance of the evidence that the reason given by Generale Bank for its compensation decisions -- namely that the salaries and bonuses it paid to Mr. Dessie were consistent with his functions, seniority, experience, merit, and the relative market demand for individuals in his area of expertise -- was merely a pretext for discrimination. Id.

 During the charging conference after both sides had rested, Mr. Dessie argued for the first time that the jury should be charged that it should consider whether Generale Bank had discriminated against him by paying him less than Ian Messer, rather than just less than Mr. Neukomm and Mr. Speeckaert. Tr. 1120-22. Generale Bank objected on the ground that Mr. Dessie had never previously claimed that his salary should be compared to any officers other than Mr. Neukomm and Mr. Speeckaert, either in the Pleadings or in the Pre-Trial Order, nor had he offered any evidence at trial supporting such a comparison. Tr. 1120, 1122. The court ruled that Mr. Dessie's salary claim would be limited by the pleadings and the Pre-Trial Order and, thus, precluded any comparison to Mr. Messer's salary in connection with that claim. Tr. 1122.

 On December 13, 1991, the jury returned a verdict in favor of Generale Bank on Mr. Dessie's termination claim, finding that Generale Bank had not discriminated against Mr. Dessie in connection with his discharge. Tr. 1321. The jury found in favor of Mr. Dessie on his salary claim, finding that between May 16, 1988 and January 15, 1990, Generale Bank had paid him $ 200,000 less than Mr. Neukomm and Mr. Speeckaert. Tr. 1322. The jury also found that Mr. Dessie had sustained $ 40,000 in mental anguish damages. Id. Generale Bank then renewed a previously-made motion for judgment as a matter of law in accordance with Fed. R. Civ. P. 50(b). Tr. 1324-25.


 I. Judgment as a Matter of Law

 The court may consider all of the evidence favorable to the position of the party opposing the motion as well as any unfavorable evidence that the jury is required to believe. 9 C. Wright & A. Miller, Federal Practice and Procedure § 2529 at 573. Thus, it may take into account evidence supporting the moving party that is uncontradicted and unimpeached, at least to the extent that the evidence comes from disinterested witnesses. Id.; see also County of Suffolk v. Long Island Lighting Co., 907 F.2d 1295, 1314 (2d Cir. 1990); Simblest v. Maynard, 427 F.2d 1, 5 (2d Cir. 1970).

 The trial court is "required to consider the evidence in the light most favorable to the party against whom the motion was made and to give that party the benefit of all reasonable inferences that the jury might have drawn in his favor from the evidence." Smith v. Lightning Bolt Productions, Inc., 861 F.2d 363, 367 (2d Cir. 1988). Courts endeavoring to state a test for distinguishing between legitimate and unreasonable inferences have engaged in a multitude of formulations. See, e.g., Fenner v. General Motors Corp., 657 F.2d 647, 651 (5th Cir.), reh'g denied, 657 F.2d 1251 (5th Cir. 1981), cert. denied, 455 U.S. 942, 71 L. Ed. 2d 653, 102 S. Ct. 1435 (1982) ("An inference may be unreasonable if it is 'at war with uncontradicted or unimpeached facts.'"); Epoch Producing Corp. v. Killiam Shows, Inc., 522 F.2d 737, 744 (2d Cir. 1975), cert. denied, 424 U.S. 955, 47 L. Ed. 2d 360, 96 S. Ct. 1429 (1976), cert. denied, 431 U.S. 949, 97 S. Ct. 2666, 53 L. Ed. 2d 266 (1977) ("An inference will be upheld only if application of common experience and logic to the underlying evidence will support it."); Selle v. Gibb, 567 F. Supp. 1173, 1182 (N.D. Ill. 1983), aff'd, 741 F.2d 896 (7th Cir. 1984) ("Where the case of a plaintiff is based on an inference or inferences, it must fail upon proof of undisputed facts inconsistent with such inference or inferences."). The Second Circuit has opined that

 in the fact finding process a trier is authorized to draw reasonable inferences from known or proven facts. But the inference, to qualify as a fact found, must be reasonable, and, in the context of the known facts, be one that springs readily and logically to mind and is not one of two or more inferences, both or all of which are about equally probable.

 National Labor Relations Board v. Gleason, Inc., 534 F.2d 466, 474 (2d Cir. 1976) (action seeking enforcement of orders requiring employers to cease from certain conduct and making employees whole for any loss of income suffered as a result of such conduct). *fn3"

 II. Salary Claim

 A. Incidents That Allegedly Support An Inference of Discrimination

 At trial, plaintiff presented evidence as to several incidents which took place during his tenure at Generale Bank, that he views as "[giving] meaning to the salary differential" between himself and Messrs. Neukomm and Speeckaert. Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Judgment as a Matter of Law ("Pl. Mem. in Opp.") at 3. Mr. Dessie argued at trial, and in his opposition papers, that many of these incidents illustrate Generale Bank's attitude that he did not project the right "image" for the bank because of his race and/or national origin. Id.; Tr. 62, 234, 1256. It is from these events and from the bank's actions regarding his compensation and job security that Mr. Dessie argues that a jury could reasonably infer that he was discriminated against in the compensation he received. The court will discuss each event in turn.

 1. Racist Statements

 Mr. Dessie presented evidence at trial that, at the time that Generale Bank's board of directors was considering his appointment as General Manager of the New York branch, Paul Janssen, a member of the board, had asked Ian Messer: "what [would] be the reaction of the banking community and what [would] be the reaction of our customers putting him [Dessie] as the number one person in New York?" Tr. 211. Mr. Messer replied that "in this day and age, as far as -- his race should not matter but only performance." Id. Mr. Dessie received the appointment. Tr. 142; Ex. I.

 At the time of this exchange, in addition to his position on the board, Mr. Janssen was in charge of both the accounting department and the London office of Generale Bank. Tr. 212. Towards the end of 1988, Mr. Janssen became the Chairman of the board. Id. Clearly Mr. Janssen held various positions of influence at the bank throughout Mr. Dessie's tenure, however, Mr. Dessie presented no evidence that Mr. Janssen had anything to do with the setting of his salary. On the contrary, the evidence was unequivocal that first Mr. Messer and then Andre Dirckx had that responsibility. Tr. 187-93, 392; Exs. 10, 32. Therefore, even assuming arguendo that Janssen was referring to Mr. Dessie's race and suggesting that it might create problems if Mr. Dessie were in charge of the New York branch, the court cannot conclude that it would then be reasonable for a jury to infer that this affected the setting of Mr. Dessie's salary.

 Mr. Dessie also asserts that Mr. Dirckx made a racist comment, an assertion he bases on the following excerpt from Ian Messer's ...

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