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.
Two weeks after Robinson's internal complaint, on May 11, 1996,
one of the Department Directors, Burkert, instructed Robinson to
provide him with a detailed accounting of Robinson's whereabouts
assignments on a daily basis between October 1, 1995 and
March 31, 1996.
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 be
staffed with existing TWI members of the Internal Audit
Department, who would become E & Y employees.
E & Y followed a three-part process. On July 31 and August 1,
1997, each auditor interested in working for E & Y was interviewed
by two E & Y employees, one audit partner, and one human resources
professional. Comments were solicited about the candidates from
E & Y external auditors who had worked on the TWI engagement. On
August 1, the E & Y team members met to discuss each candidate and
decide whether or not to hire him or her. At the conclusion of
this process, Robinson was not offered a job by E & Y.
Robinson interviewed at E & Y on July 31, 1997, with Marlene
Currie ("Currie"), a Human Resources representative, and Peter
Howe ("Howe"), the E & Y engagement partner who had serviced the
Department and who was to be in charge of the outsourced TWI
Internal Audit employees.
Currie's interview evaluation form concluded that Robinson
should be extended an offer. Howe's evaluation form, however,
included comments that were similar to those made to Robinson
about his performance by Hayes. In addition, two E & Y field
auditors who had worked on the TWI account commented on
Robinson's candidacy, although neither worked directly with
The minutes of the August 1 E & Y team meeting stated with
respect to Robinson that:
Mr. Robinson's background for the position of
internal audit manager was determined to be
inconsistent with the needs of Ernst & Young
Resources' Internal Audit Services practice.
Specifically, Mr. Robinson has held the position
of internal audit manager for Time Warner since
October of 1986, yet based on prior interaction
with Ernst & Young external auditors he was
observed to be ineffective in completing work
and inconsistent in certain other necessary
behaviors, such as reliability and team
participation. His verbal communication ability,
based on previous contact with E & Y personnel and
his interviews with E
& Y personnel, was not at the requisite level of a
manager. Descriptions in the interview of his
management style and his delegation of work did not
indicate an ability to develop people beyond assigning
them tasks. In addition, in previous contact with
Mr. Robinson, he did not demonstrate the ability to
apply the knowledge he seemed to have to the business
operations. Transferring knowledge to others, developing
people, and communicating effectively are all
requirements for a managerial position within Ernst &
Young. These abilities are especially vital to the
internal audit outsourcing business. As a result, the
interviewing group reached a consensus that an offer
of employment should not be extended to Mr. Robinson.
Of the 33 former TWI Internal Audit people interviewed by E & Y,
four were not offered jobs. Two of them, Ted Kramer and Russell
Danziger, had been terminated and/or rated as poor performers in
previous positions at E & Y. The other two were Robinson and Jill
Korn. Like Robinson, in the past Korn had alleged that she had
suffered discriminatory treatment by Hayes while at TWI.
Robinson's position was given to Dawn Burnap, whose experience
and credentials did not match Robinson's.
Every E & Y witness, including Howe, stated he or she received no
input from anyone at TWI. Howe, who had served as the E & Y
engagement partner servicing Hayes' Department, had lunched
privately with Hayes a week before Robinson's interview.
On or about August 1, 1997, Robinson was given a job
elimination package by TWI with a termination date of September
By letter of August 8, 1997, Robinson was informed that E & Y
would not be offering him a position.
After his termination, Robinson opened his own CPA practice
working out of his home.
TWI has moved for summary judgment on the grounds that the
undisputed facts show that: (1) TWI did not interfere with
Robinson's efforts to secure employment at E & Y; (2) Hayes
reorganized the Department and promoted Stein for legitimate,
non-discriminatory reasons; (3) the December 10, 1996 oral
warning was not retaliatory; and (4) Robinson cannot assert a
claim under 42 U.S.C. § 1981 because he was an at-will
employee. In addition, TWI argues that Title VII claims
pertaining to events occurring more than 300 days before Robinson
filed his EEOC charge, i.e., before March 19, 1996,*fn1 are
barred on statute of limitations grounds as well as section 1981
and NYHRL claims occurring more than three years before the
filing of the complaint in this case, i.e., July 11, 1994.
Finally, TWI argues that Robinson's demand for punitive damages
should be stricken because Robinson cannot met the legal standard
for such damages.
I. Standard for Summary Judgment
Rule 56(c) of the Federal Rules of Civil Procedure provides
that a motion for summary judgment may be granted when "there is
no genuine issue as to any material fact and that the moving
party is entitled to a judgment as a matter of law." The Second
Circuit has repeatedly noted that "as a general rule, all
ambiguities and inferences to be drawn from the underlying facts
should be resolved in favor of the party opposing the motion, and
all doubts as to the existence of a genuine issue for trial
should be resolved against the moving party." Brady v. Town of
Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex
Corp. v. Catrett, 477 U.S. 317, 330 n. 2
106 S.Ct. 2548, 91 L.Ed.2d 265 (1986) (Brennan, J., dissenting));
see Tomka v. Seiler Corp., 66 F.3d 1295, 1304 (2d Cir. 1995);
Burrell v. City Univ., 894 F. Supp. 750, 757 (S.D.N.Y. 1995).
If, when viewing the evidence produced in the light most favorable
to the nonmovant, there is no genuine issue of material fact,
then the entry of summary judgment is appropriate. See Burrell,
894 F. Supp. at 758 (citing Binder v. Long Island Lighting Co.,
933 F.2d 187, 191 (2d Cir. 1991)).
Materiality is defined by the governing substantive law. "Only
disputes over facts that might affect the outcome of the suit
under the governing law will properly preclude the entry of
summary judgment. Factual disputes that are irrelevant or
unnecessary will not be counted." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 248 (1986). "[T]he mere existence of factual
issues — where those issues are not material to the claims
before the court — will not suffice to defeat a motion for
summary judgment." Quarles v. General Motors Corp., 758 F.2d 839,
840 (2d Cir. 1985).
For a dispute to be genuine, there must be more than
"metaphysical doubt." Matsushita Elec. Indus. Co. v. Zenith Radio
Corp., 475 U.S. 574, 586 (1986). "If the evidence is merely
colorable, or is not significantly probative, summary judgment
may be granted." Anderson, 477 U.S. at 249-50 (citations
Additional considerations factor into a summary judgment motion
in an employment discrimination action. See Gallo v. Prudential
Residential Services, L.P., 22 F.3d 1219, 1224 (2d Cir. 1994);
see also Montana v. First Fed. Sav. & Loan Ass'n, 869 F.2d 100,
103 (2d Cir. 1989); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.
1985). Because writings directly supporting a claim of
intentional discrimination are rarely, if ever, found among an
employer's documents, a trial court must be particularly cautious
about granting summary judgment when the employer's intent is at
Affidavits and depositions must be scrutinized for
circumstantial evidence which, if believed, would show
discrimination. See Gallo, 22 F.3d at 1224. This does not
suggest, however, that summary judgment is never appropriate in
an employment discrimination action. The Second Circuit has made
clear that the "impression that summary judgment is unavailable
to defendants in discrimination cases is unsupportable." McLee v.
Chrysler Corp., 38 F.3d 67, 68 (2d Cir. 1994); see Meiri, 759
F.2d at 998.
Where no evidence exists or only conclusory allegations of
discrimination have been offered to suggest that an employer's
motives are improper, summary judgment may be appropriate. See
Meiri, 759 F.2d at 998; see also Woroski v. Nashua Corp.,
31 F.3d 105, 109-10 (2d Cir. 1994). After all, a party seeking to defeat
a summary judgment motion cannot rely upon "conclusory
allegations or denials," but rather must set forth "`concrete
particulars'" showing that a trial is needed. National Union Fire
Ins. Co. v. Deloach, 708 F. Supp. 1371, 1379 (S.D.N.Y. 1989)
(quoting R.G. Group, Inc. v. Horn & Hardart Co., 751 F.2d 69, 77
(2d Cir. 1984)).
Mere speculation or conjecture as to the true nature of facts
cannot overcome the motion. See Lipton v. Nature Co.,
71 F.3d 464, 469 (2d Cir. 1995); Knight v. U.S. Fire Ins. Co.,
804 F.2d 9, 12 (2d Cir. 1986). The responding party "must show the
existence of a disputed material fact in light of the substantive
law." Peer Int'l Corp. v. Luna Records, Inc., 887 F. Supp. 560,
564 (S.D.N.Y. 1995). In the absence of any disputed material
fact, summary judgment is appropriate.
II. The Legal Standards Governing Title VII and the New York
Human Rights Law Claims
As the Second Circuit has explained, the "ultimate issue" in
any employment discrimination case is "whether the plaintiff has
met her burden of proving that the adverse employment decision
was motivated at least in part by an impermissible