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GOYETTE v. DCA ADVERTISING INC.

July 30, 1993

RUSSELL GOYETTE, BERNICE RICE GERSTEIN, IRVING BENIG, JUDITH TELLER and ROBERT ROSS, Plaintiffs,
v.
DCA ADVERTISING INC., and DENTSU INC., Defendants. JULIUS FILICIA, Plaintiff, v. DCA ADVERTISING INC., and DENTSU INC., Defendants.



The opinion of the court was delivered by: KENNETH CONBOY

 KENNETH CONBOY, DISTRICT JUDGE:

 *** Confidential Salary Information has been deleted by Request of the Court.

 Dentsu Inc. ("Dentsu"), is an advertising and communications company based in Tokyo. In 1983, Dentsu entered into a joint venture with an American advertising agency, Young and Rubicam ("Y&R"), to form a new advertising agency named DYR. Three years later, Y&R sold its 50% interest in DYR to Dentsu. Dentsu then renamed the agency DCA. DCA, an American corporation, is a wholly owned subsidiary of Dentsu with offices in New York City and Los Angeles.

 All of the plaintiffs in this case are American-born former employees of DCA in its New York office. *fn1" In September of 1990, from a total work force of 144, defendants discharged all of the plaintiffs and seventeen other American employees (a total of 22 Americans). *fn2" Claiming that defendants discriminated against plaintiffs based upon plaintiffs' national origin, the plaintiffs are suing the defendants under the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. ("Title VII") and the New York State Human Rights Law, Executive Law § 296 et seq. ("Human Rights Law"). *fn3" DCA has now moved for summary judgment. For the reasons that follow, DCA's motion for summary judgment is denied in part and granted in part.

 Background

 As each of the plaintiffs must prove discrimination with respect to his or her individual termination, we will briefly discuss each plaintiff's employment history with DCA and the context of his or her discharge. Viewing the record in the light most favorable to the plaintiffs, the following are the facts of this case.

 1. Goyette

 Russell Goyette ("Goyette") was hired in April 1985 by DYR. In June 1985, DYR named Goyette Vice President. In April 1986, he received a salary increase of $ ***, and in April 1987 he received another salary increase of $ ***. See Goyette Affidavit ("Goyette Aff.") P 3. When Dentsu acquired all of DYR and renamed it DCA, Y&R took the Heublein account on which Goyette had been working. Consequently, the Heublein management requested that Goyette be transferred to Y&R to continue servicing the Heublein brands. DCA management, however, asked Goyette to stay with DCA. DCA felt that Goyette's marketing expertise would be valuable in attracting and servicing new clients. See id. at P 5. Goyette remained with DCA. See id. at P 6. In February 1988, DCA promoted Goyette to Vice President, Group Account Director of DCA. In that position, he supervised numerous accounts, including Japan Airlines, Nikko Hotels, Shisheido Cosmetics, Mikimoto Jewelry, and Sanyo Fashion House. Goyette received a $ *** salary increase in 1988, followed by a $ *** salary increase in 1989. He also received performance based bonuses: $ *** in 1989, and $ *** in May of 1990. See id. at P 6.

 In September of 1990, DCA terminated Goyette. DCA chose to retain Nick Nakahara ("Nakahara"), a Japanese-American *fn4" and the only other Vice President, Group Account Director, over Goyette, even though the two performed equivalently. *fn5" Additionally, after Goyette's discharge, DCA assigned Goyette's duties on Japan Airlines and Nikko Hotels to his former subordinates Kazuhide Ishii ("Ishii"), a Dentsu expatriate, and Chris Yamaguchi ("Yamaguchi"), a Japanese-American. See Affidavit of Debra Raskin ("Raskin Aff."), Exhibit C at 981. DCA also transferred Goyette's work on Shisheido and the other fashion accounts to Mariko Kobayashi ("Kobayashi"), a Japanese-American. See Teller Aff. at P 8.

 After his discharge, Goyette approached DCA's President, Toshio Naito ("Naito") to complain about his discharge and the favoritism with which DCA treated its Japanese employees. Goyette also asked Naito for alternative employment with another Dentsu affiliate. In response, Naito told him, "I'm sorry. We have to treat Americans and Japanese differently. We have to favor the Japanese." Id. at P 21.

 2. Benig

 In September of 1988, DCA hired Irving Benig ("Benig") as a Vice President with three areas of responsibility: (1) staffing of the creative department as Group Creative Director; (2) attracting new business as Chair of the New Business Committee; and (3) expanding DCA's sales promotion service. See Affidavit of Irving Benig ("Benig Aff.") PP 4-6. Benig received praise from Naito and the General Manager of DCA, Kiyoshi Eguchi ("Eguchi"), for his work in each of these capacities. In March 1989, Benig received a $ *** pay increase. See id. at P 11.

 In September of 1989, DCA promoted Benig to Vice President, Manager of Creative Services/Group Creative Director. See id. at P 12. Shortly thereafter, however, DCA lost the Canon camera account on which Benig had been working. As a result, Eguchi instructed Benig to lay off one employee from the creative department who had worked on that account. Had Benig been free to lay off any employee of his choosing, Benig would have discharged Kunimasa Hatachi ("Hatachi"), a Japanese employee and a Dentsu expatriate. See id. at P 22. Instead, however, Eguchi forced Benig to lay off a non-Japanese employee.

 In December 1989, Benig's position changed again when Eguchi asked Benig to create and direct a formal sales promotion division. See id. at P 6. Benig made many efforts so that this new department would grow and succeed. See id. at P 14. In May or June of 1990, Naito told Benig that Naito was pleased with the progress that Benig had made in this new area. On May 31, 1990, Benig received a $ *** bonus. See id. at P 15.

 In September of 1990, DCA terminated Benig's employment. Subsequently, DCA placed Muneharu Tokura ("Tokura"), a Japanese expatriate, in charge of a collateral advertising component of sales promotion, which served a function similar to that of Benig's former position. *fn6" Consequently, Tokura assumed many of Benig's duties. Tokura, however, a Japanese expatriate, had received poor evaluations from his supervisors before assuming this new role. McDonagh stated that he was "unimpressed" with Tokura's work and that he did not think Tokura had any "ability to work culturally in the United States." See McDonagh Dep. at 64, Raskin Aff., Ex. E.

 3. Teller

 DCA hired Judith Teller ("Teller") in October 1988 as an Associate Creative Director. Although Teller had a background in copywriting, while others in her position had backgrounds in art, all Associate Creative Directors had the same responsibilities and worked together. See Teller Aff. PP 11-12 and Ex. B at 338. One year after DCA hired Teller, DCA gave Teller a salary increase of $ ***, and shortly after that, DCA gave Teller a bonus of $ ***. See Teller Aff. P 1. Teller worked on two of the important advertising campaigns for the Canon account ("The Heart of Technology" and "Shoot it Hot") . See id. at PP 2-3. In March of 1990, Teller received a written performance evaluation, reviewed by Eguchi, which ranked her overall work as 4 or "exceeds standards" on a scale of 1 to 5. See id. Ex. B at 343.

 In September of 1990, DCA fired Teller. At that time, Joseph McDonagh ("McDonagh"), Director of Creative Services, told her that he would provide her a good reference. See id. at P 14. Additionally, DCA retained Japanese employees in the Creative Department who were arguably less qualified than Teller. Hiroaki Yamada ("Yamada"), a Japanese expatriate and Creative Supervisor, was retained despite McDonagh's description of Yamada's work as "terrible" and "weak." See McDonagh Dep. at 88, Raskin Aff., Ex. E. ...


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