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ROBINSON v. TIME WARNER INC.
April 21, 2000
J. EDWARD ROBINSON, PLAINTIFF,
TIME WARNER INC. AND MICHAEL HAYES, DEFENDANTS.
The opinion of the court was delivered by: Sweet, D.J.
Defendants Time Warner, Inc. ("TWI") and Michael Hayes
("Hayes") have moved, pursuant to Rule 56 of the Federal Rules of
Civil Procedure, for summary judgment to dismiss the amended
complaint of plaintiff J. Edward Robinson ("Robinson") alleging
racial discrimination and retaliation in violation of Title VII
of the Civil Rights Act of 1964, as amended,
42 U.S.C. § 2000e et seq., 42 U.S.C. § 1981, and the New York State Human
Rights Law, N.Y. Exec. Law § 290 et. seq., and tortious
interference with prospective economic advantage. For the reasons
set forth below, the motion will be granted in part and denied in
Robinson was an employee of TWI (or Warner Communications,
Inc., prior to its merger with Time Inc.) in its Internal Audit
Department (the "Department") from October 1986 until September
12, 1997, and claims race-based discrimination and/or retaliation
from 1988 through the termination of his employment.
TWI is a corporation located within the state of New York.
Hayes was the Vice President of the Department from April
1995 until Robinson's termination in September 1997.
Robinson filed this action asserting claims for race
discrimination under 42 U.S.C. § 2000e et seq. ("Title VII"),
42 U.S.C. § 1981 ("Section 1981"), and the New York Human
Rights Law, N.Y. Exec. Law § 290 et seq. ("NYHRL"), on July
11, 1997, having previously filed a charge of discrimination by
the defendants with the Equal Employment Opportunity Commission
("EEOC") on January 13, 1997. Robinson, a member of the
Department, alleged that he had been passed over for promotions
between 1988 and 1995, and that beginning in 1995, he had been
discriminated against by Hayes, Vice President of Internal Audit,
who demoted him, and put him on oral warning in 1996 in
retaliation for Robinson's internal complaint of discrimination.
After the Department was outsourced by Ernst & Young ("E & Y"),
Robinson amended his pleading to add the allegation that the
defendants were responsible for his not being offered a position
with E & Y, that they interfered with Robinson's prospect of
obtaining employment with E & Y, and that they retaliated against
him for his formal and informal complaints of discrimination,
thereby violating Section 1981 and the NYHRL and giving rise to a
common-law claim for tortious interference with prospective
The facts set forth below are taken from the parties Rule 56.1
statements, affidavits, and exhibits. What follows is gleaned
from these submissions, with any factual inferences drawn in
In October 1986, Robinson, who is African-American, commenced
employment with Warner Communications, Inc., as an Audit
Supervisor in the Internal Audit Department. In 1990, Warner
Communications, Inc., merged with Time, Inc., to become TWI.
As an Audit Supervisor, Robinson initially reported to Robert
Burkert, an Audit Manager. In 1988, Robinson was promoted to
Audit Manager. As Manager, Robinson reported directly to the Vice
President of the Department, John W. Thomas. After Thomas's
retirement in mid-1993, Robinson began reporting to Thomas's
replacement, John LaBarca, until LaBarca's replacement by Hayes
During the period in which Robinson reported to Thomas and then
LaBarca, Robinson sought but was not granted promotion to manage
a satellite office (in either London or Los Angeles). Also, in
1993 an offer for Robinson to fill the Controller position at the
DC Comics division was revoked. All of the Robinson sought
positions were given to white employees.
During the same period, however, Robinson received sizable
merit salary increases, stock options awards, and
performance-based bonuses. In 1992 TWI also sponsored Robinson for an
Executive MBA program at New York University.
Robinson brought up what he perceived as a problem of
institutional racism with Michael Watson ("Watson"), a Human
Resources Manager, who told Robinson that there was a low number
of minority executives in a company of approximately 44,000
employees, including the Internal Audit Department. Robinson
himself observed that there was only African-American who held an
executive (i.e. Director or above) financial position at TWI's
In April 1995, Hayes became Vice President of the Department.
During the thirteen years prior to Hayes joining the Department,
during which he had worked elsewhere within TWI, Hayes had a
total of five minority employees reporting to him. Of the six
Managers and Directors reporting to him during that period, five
were white males. The sixth was Tim Harris, who worked for Hayes
while Hayes headed the Finance Department, and ultimately worked
under him again when he came to the Internal Audit Department.
Prior to Hayes taking over the Department, the essential
difference between a Manager and a Director was in terms of job
title and salary grade level (Managers were Grade 15 and
Directors were Grade 18). The management team for the Department
was comprised of both the Directors and the Managers, all of whom
reported directly to a Vice President of the Department. Both
Directors and Managers issued their own audit reports, were
responsible for delegating duties to Department staff —
including Audit Supervisors — and had to resolve issues
concerning delegation of those duties.
Shortly after becoming head of the Department, after a "get to
know" lunch meeting, Hayes asked Robinson if he had watched the
movie Hoop Dreams. After Robinson replied that he had not and
knew nothing about the movie, Hayes told Robinson that he had
attended the college discussed in the movie and stated that "some
of my best friends were black."
In April 1995, Robinson told Hayes that he sought a promotion.
Hayes did not promote Robinson. In June 1995, Hayes met with
Robinson and discussed four performance areas that Hayes said
were holding Robinson back from promotion: management of projects
and people, business judgment, knowledge of businesses and
organizations, and work ethic. At this time, Hayes placed
Robinson on an "action plan" to address each of these areas.
Hayes asserted that his comments were based on feedback from
division management and audit staff, but refused Robinson's
request to speak with Robinson's primary contacts within the
divisions. Hayes kept notes concerning his conversations about
Robinson with staff members, although some of these notes were
not maintained contemporaneously. In addition, although Hayes
memorialized a negative comment about Robinson by LaBarca in
February 1995, at which time LaBarca was still Vice President of
the Department, LaBarca denied making that statement. In fact,
during LaBarca's performance evaluation meeting with Robinson
that same month, LaBarca gave Robinson a favorable evaluation, a
merit salary increase, a bonus, and stock options.
Around the time of the June 1995 meeting, Hayes objected to an
expense voucher Robinson had submitted in connection with a lunch
involving the New York Urban League. About one month after
putting Robinson on an "action plan," Hayes compiled an
assessment of the six Audit Managers' and Directors' work in five
performance categories. The three white males received among them
five "excellent" ratings, nine "above average", and one
"average". The two African-American males and one female received
among them one "excellent" rating, one "above average", six
"average", and seven "below average". Hayes rated Robinson below
average in the categories entitled "Drive and "Business
Judgment." Hayes had not attended any of Robinson's closings,
visited any of his audit sites, or reviewed any of his audit
On August 9, 1995, without notice or discussion, Hayes reduced
the authority, duties, and responsibilities of Robinson and
another Manager, Tim Harris. Robinson and Harris were the only
African-American members of the management team, comprised of
Directors and Managers, for the Department. In the past, the
authority, duties, and responsibilities of Directors and Managers
were equivalent. Robinson and Harris were now required to report
to Burkert, who had previously been promoted to a Director, and
to have him review their audit reports before issuance, although
in the past Robinson and Harris were responsible for issuing
their own audit reports.
Robinson and Harris complained to Watson, the Human Resources
Manager responsible for the Department, that the demotions
appeared to be racially motivated. Watson told Robinson that he
was not aware of a reorganization that would have resulted in the
demotions. In this regard, neither Burkert, one of the Department
Directors, nor Bijur, the Human Resources Director responsible
for the Department, had an understanding either as to why Hayes
took actions affecting only Robinson and Harris in August 1995.
Approximately three months later, in November 1995, again
without prior discussion or memoranda, Hayes announced a
reorganization of the Department into a three-tier structure with
each tier headed by a Director reporting to Hayes. According to
Hayes, this reorganization was directed by his superiors with the
aim of running the Department more efficiently. At the time of
the November 1995 reorganization, Hayes had already retained E & Y
to study whether a reorganization was necessary but E & Y was not
due to submit its recommendations until January 1996.
After the August 1995 demotion and November 1995
reorganization, Robinson's and Harris's authority, duties, and
responsibilities were reduced to the level of an Audit Supervisor
even though in the past Audit Supervisors reported to these three
Managers. The three of them no longer reported directly to the
Vice President of the Department (now Hayes), but instead were
required to report to the Directors; were no longer invited to
the periodic (usually monthly) department management meetings; no
longer issued their own audit reports, but instead were required
to have them reviewed by a Director before issuance; were
descriptions specifying that their authority, duties, and
responsibilities were identical to those of Audit Supervisors,
whereas in the past his job description was identical to that
of Directors; no longer had authority to delegate assignments
to Department staff and resolve delegation issues; and were listed
on the Department Directory with the Audit Supervisors rather
than, as had been the practice in the past, with the Directors.
In addition, their rights to be granted stock options were removed.
At the time of the reorganization, Hayes also promoted the only
white male Manager, Richard Stein ("Stein"), to a Director. Stein
had been with TWI less than a year. Both Stein and Robinson were
Certified Public Accountants, but Robinson had an MBA in
Management while Stein had only an undergraduate degree.
Robinson had also helped train Stein. Hayes also reduced the
authority, responsibilities, and duties of Jane Campbell, who was
the only other Manager and the only female member of the
management team, in the same manner as with Robinson and Harris.
At the time that Stein was promoted, TWI had a written
affirmative action policy that required that minority candidates
be given preference in hiring and promotion over other candidates
with similar qualifications. The stated purpose of this policy
was to accelerate minority hiring and promotion. Every employee
was given a copy of the policy each year and all members of
management were informed at least annually that they were
required to comply with it. Hayes has denied awareness of TWI's
affirmative action policy.
As a result of the reorganization, only white males (Duncan
Campbell, Robert Burkert, and Richard Stein), reported directly
to Hayes. After the November 1995 reorganization, Hayes added
five more Managers, either by way of new hire or promotion, all
of whom were required to report to a Director.
Robinson and Harris again complained to Watson that they
believed that their race (and Campbell's sex) was a motivating
factor in the changes in the Department's organization.
On January 11, 1996, Hayes gave Robinson his 1995 oral
performance review, during which Hayes criticized Robinson's
performance and placed him on a "watch list". Hayes gave Robinson
a salary increase of 1.5%, which was the lowest Robinson had ever
received. He also gave Robinson a bonus of $2,000, whereas the
prior year LaBarca had given Robinson a bonus of $13,500. One
month later, Hayes decided that Robinson, Harris, and Campbell
would not receive stock options for 1996, although in the past
Managers were eligible for these options.
In March 1996, Hayes hired Curtis Strohl ("Strohl"), a white
male, under the newly-created title of Senior Manager. Despite
his title, Strohl was at the same salary grade as Robinson,
Harris, and Campbell. However, he reported directly to Hayes with
respect to the more significant aspects of his work. Strohl was
also awarded stock options, which meant that all white males at
salary grade 15 or above received stock options.
A second Senior Manager, Norlin Evans ("Evans"), an
African-American male, was subsequently added to the Department as a
result of TWI's merger with Turner Broadcasting. Evans was given
a direct reporting line to a Director, Stein, rather than to
Hayes, although Evans had been an Acting Director at Turner
Broadcasting. Hayes also hired a new Director in 1996, Robert
Perkins ("Perkins"), who is African-American.
Robinson met with Watson on April 29, 1996, as well as with
Watson's supervisor, Priscilla Bijur, on the following day, at
which meetings he stated his belief that he continued to be the
victim of race discrimination.
TWI retained an attorney, Lawrence Levien, Esq., to investigate
Robinson's complaint of racial discrimination. Three months after
the completion of Levien's investigation, on December 10, 1996,
Robinson was placed on oral warning. Soon thereafter, on January
7, 1997, Hayes prepared a memo which indicated that Richard
Bressler ("Bressler"), to whom Hayes reported, considered
Robinson to be a "C — " performer. Bressler, however,
denied rating Robinson as such. On February 28, 1997, Burkert and
Perkins gave Robinson a written performance warning advising him
that he would be fired if he did not improve in four generally
subjective areas by April 30, 1997.
Hayes did not send Robinson for outside management coaching to
improve his performance, although Hayes had done so for Burkert,
a white male.
On March 17, 1997, TWI's corporate doctor hospitalized Robinson
after administering and reviewing the results of several EKGs.
Ultimately, it was determined that Robinson had a heart spasm.
After approximately four weeks, Robinson's doctor was satisfied
that Robinson could return to work in terms of his physical
health, but that Robinson should be kept out pending a
psychological evaluation. Robinson was diagnosed as suffering
from major depression and stress-related disorders, and his
treating therapist continued him on disability leave.
In 1996, E & Y had recommended that it replace the Department in
performing the internal audit function. The TWI Board of
Directors approved this proposal in July 1997. In mid-July, while
out on disability leave, Robinson received a memo from Hayes
announcing that, effective September 15, 1997, the internal audit
function at TWI would be eliminated and outsourced to a
newly-created business unit at E & Y. The new unit at E & Y was to ...