The opinion of the court was delivered by: GERARD LYNCH, District Judge
Plaintiff Jorge Torrico, a Chilean national with permanent resident
alien status, brought this action against his former employer, defendant
International Business Machines Corporation ("IBM"), alleging violations
of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101
et seq. and pendent claims under the New York Human Rights Law
(`NYHRL"), N.Y. Exec. L. § 290 etseq.*fn1 IBM moved to
dismiss pursuant to Fed. R, Civ. P. 12(c) on the ground that neither the
ADA nor the NYHRL applies extraterritorially to protect Torrico, a
non-citizen on temporary-assignment in Chile at the time IBM discharged
him. Construing the pleadings in the light most favorable to Torrico, the
Court held that Torrico's complaint adequately alleged that both statutes
protect him because, his foreign citizenship and temporary assignment
he remained "employed" in the United States within the meaning of
the ADA during his tenure with IBM, Torrico v. Int'l Bus. Mach.
Corp.. 213 F. Supp.2d 390, 404 (S.D.N.Y. 2002), and the alleged
discriminatory acts took place either in New York State or against a New
York "resident" within the meaning of the NYHRL. Id. at 407.
With discovery now complete, IBM moves for summary judgment pursuant to
Fed.R.Civ.P. 56, arguing that the evidence fails to substantiate the
allegations the Court previously held sufficient to bring Torrico within
the protection of the ADA or the NYHRL; that Torrico failed timely to
file a complaint with the EEOC; and that, in any event, his claims fail
on the merits. Torrico cross-moves for partial summary judgment on
liability. For the reasons that follow, both motions will be denied.
In 1982, Torrico began working in the United States, and from then
until 1994, he held a series of jobs with companies located,
respectively, in Illinois, Tennessee, Washington, D.C., and Maryland.
(Pope Decl., Ex. 15.) Torrico became a U.S. permanent resident alien in
1986 (3d Torrico Decl. ¶ 9),*fn2 and in 1994, he resided in
Virginia, where he owned a home and paid
property taxes. (D. Rule 56.1 Stmt ¶¶ 2-3.) On September 6, 1994,
IBM hired Torrico as General Manager of Telecommunications and
Media Industry for IBM Latin America ("IBM/LA"), a division of IBM
headquartered in Mt. Pleasant, New York. (P. Rule 56.1 Stmt. ¶ 5.)
Torrico's duties required "extensive travel to meet with corporate
executives and officers in the telecommunications industry throughout
Latin America," and from the outset, he therefore spent substantial time
abroad. (2d Torrico Decl. ¶ 3; D. Br. 3.) But while working in the
United States, he commuted to IBM/LA's New York headquarters, staying in
hotels (D. Br. 3), and on weekends, returned to Virginia to be with his
wife. (Torrico Tr. 164.) IBM initially subsidized Torrico's commuting
expenses and expected to subsidize his relocation to the New York
tri-state area. (Pope Aff., Ex. 11; D. Br. 3.) But it quickly became
evident that Torrico's duties could best and most efficiently be
performed from a location in Latin America. (D. Br. 3; 2d Torrico Decl.
¶ 3.) Effective July 1, 1995, IBM/LA therefore placed Torrico on
temporary international assignment to Santiago, Chile, for an initial
term of three years. (P. Rule 56.1 Stmt. ¶ 6; Seward Decl., Ex. 1.)
Torrico's assignment memorandum from Diane M. Adams, an IBM International
Assignment Representative, emphasized the temporary nature of his
International assignments are temporary in nature.
The length of your assignment is based on present
business requirements and is subject to change at
the discretion of IBM. You are expected to
re-enter your home country at the completion of
assignment or any extension. However, you may not
necessarily return to the same division,
subsidiary, group, etc., from which you left. You
are cautioned that personal or job-related plans
or commitments you make should take into
consideration the temporary nature of this
assignment and the planned return date to your
home country. You are on a rotational assignment
agreed to by IBM Latin America, and they will be
responsible for planning your next
position in the U.S.*fn3
(Seward Decl., Ex. 1.) In a letter to the U.S. Department of Justice,
Donald A. Comilloni, IBM's manager of international assignments, wrote
that "[f]ollowing this assignment, [Torrico] will be reassigned to a
position in the United States" (id., Ex. 2), and an internal
IBM memorandum sent from Adams to Mario Bethlem, then Torrico's career
manager, solicited IBM/LA's agreement that at the conclusion of Torrico's
assignment, he would be "re-enter[ed]" in a position "at no lower [a]
level than the pre-assignment level, except under extenuating
circumstances agreed to by [his] divisional personnel management."
(Id., Ex. 2A.)
Throughout his tenure with IBM/LA, and notwithstanding his assignment
abroad, IBM treated Torrico as it did other U.S. executive employees in
regard to salary, benefits, and stock options, the latter of which it
offered solely to U.S. executive employees. (P. Rule 56.1 Stmt. ¶¶
9-12.) IBM also withheld federal and state income taxes from Torrico's
salary. (2d Seward Decl., Ex. 34.) While Torrico worked primarily in
Chile, he returned to the United States about once every two months to
attend meetings, and he reported to IBM/LA's New York headquarters. (P.
Rule 56.1 Stmt. ¶ 12.) IBM extended Torrico's assignment twice,
initially from July 1, 1998, to December 30, 1998, and subsequently to
June 30, 1999. (Id. ¶ 15; D. Rule 56.1 Stmt. ¶ 10.)
Effective December 31, 1998, Torrico's job title became "Vice President
Sales." (P. Resp. to D. Rule 56.1 Stmt. ¶ 12.) Torrico testified that
"as of January of 1999, [IBM/LA] was diminished from 1200 people,
approximately, to 200 people in Miami." (Torrico Tr. 94.) While IBM
asserts that it eliminated Torrico's position at this time (D.
Rule 56.1 Stmt. ¶ 12), Torrico maintains that
IBM merely modified his existing position to one commensurate with
IBM/LA's "substantially reduced size and mission." (P. Resp. to D.
Rule 56.1 Stmt. ¶ 12.)
In January 1999, some six months before his assignment abroad ended,
Torrico became ill. Augusto Brizzolara, a Chilean physician, directed
Torrico to take a thirty-day leave, pending a detailed diagnosis, and on
January 26, 1999, Torrico so informed IBM/LA. (P. Rule 56.1 Stmt. ¶
16; Seward Decl., Ex. 9.) IBM/LA moved its headquarters to Miami at about
the same time. (D. Resp. to P. Rule 56.1 Stmt. ¶ 10; Torrico Tr. 94.)
On February 2, 1999, Marcela Grisanti, a rheumatologist in Santiago,
informed IBM in writing that Torrico suffered from fibromyalgia, reactive
arthritis, hypertension, and a stress disorder. IBM continued Torrico's
leave until March 1, 1999 (P. Rule 56.1 Stmt. ¶ 16), and Torrico
continued to keep IBM apprised of his condition, as did his treating
physicians, Brizzolara and Grisanti. (Id. ¶¶ 17-20; Seward
Decl., Ex. 10.) By letter dated February 22, 1999, IBM requested that
Brizzolara furnish information on Torrico's health, including a
"diagnosis (all recent test[s] to support the di[a]gnosis), present
status, [and] prognosis." (Seward Decl., Ex. 11.) Brizzolara responded to
that letter on February 26 (P. Rule 56.1 Stmt. ¶ 18), and on March 2,
Grisanti also sent a report on Torrico's condition to Dr. Linda Rock, the
"Head of IBM['s] Medical Dept. . . . . who supervised Mr. Torrico's
medical leave on behalf of IBM Corp." (Id., Ex. 12.) On March
8, Rock indicated in an internal memorandum her intent to identify a
"native Chilean but [E]nglish-speaking MD in Santiago" who could conduct
"an independent examination of Mr. Torrico" to determine his medical
fitness to be flown to the United States, where IBM could have him
evaluated by a specialist. (P. Rule 56.1 Stmt. ¶ 21.) Rock
subsequently contacted Sergio Jacobelli, another Chilean physician, and
requested that he medically evaluate Torrico for this purpose, which
Jacobelli did on April 20. (Id. ¶¶ 22-23; 2d
Torrico Decl. ¶ 6.)
When Torrico's international assignment ended on July 1, 1999 (P.
Rule 56.1 Stmt. ¶ 30), he remained on a certified leave of absence.*fn4
(Weiss Decl. ¶ 2.) IBM continued Torrico's leave, and he remained in
Santiago under the care of his Chilean physicians, until late September
1999, at which time he flew to New York. (P. Rule 56.1 Stmt. ¶¶
24-25.) There, two U.S. physicians, Carlos Reuda, a psychiatrist, and
Paula J. Rackoff, a rheumatologist, examined Torrico in order to address
the following issues:
(b) Degrees of disability, if any, i.e., is Mr.
Torrico totally disabled, partially disabled, or
not at all disabled?
(c) Adequacy and appropriateness of the treatment
regimen currently employed.
(d) Prognosis for Mr. Torrico's return to work,
here in the United States, with or without job
(Id. ¶¶ 25, 27.)
Torrico never received copies of the independent evaluations of Drs.
Jacobelli and Rueda (2d Torrico Decl. ¶ 7), and IBM evidently did not
disclose these reports, if they exist, in response to Torrico's discovery
demands. (3d Seward Decl., Ex. 41 ¶¶ 3-4.) But in a letter to Rock
dated October 5, 1999, Dr. Rackoff opined that Torrico suffers from
"undifferentiated connective tissue disease . . ., Sjogren's syndrome,
[and] fibromyalgia." (Seward Decl., Ex. 18 at 2.) Based on her diagnosis,
Dr. Rackoff deemed Torrico "partially disabled given the chronic pain
from which he suffers," but she explained that certain medicines could
afford him "mild to moderate relief." (Id.) She cautioned
against returning Torrico "to a high stress job which would require
traveling" and deprive him of adequate sleep and exercise.
On November 2, 1999, Rock wrote to Khalil Barsoum, the IBM employee who
acquired "direct management authority" over Torrico at the conclusion of
his international assignment, and Richard Weiss, a human resources
employee, documenting her discussion with Torrico and setting forth her
conclusions based on receipt of independent medical evaluations. (P.
Rule 56,1 Stmt. ¶¶ 30, 36; Seward Decl., Ex. 26.) Rock explained that in her
1. Mr. Torrico may be returned to work
immediately, initially on a half-day schedule.
After a period of 4 weeks, Mr. Torrico should
resume working a full schedule.
2. Mr. Torrico should not be required, initially,
to embark on flights of greater than three hours;
further, until our investigation is completed, Mr.
Torrico should refrain from flying on airlines
which engage in the use of pesticides on board
prior to flight.
3. There are no medical reasons which mitigate
against Mr. Torrico's working at any location
within the United States to which his organization
should assign him.
(Seward Decl., Ex. 26 at 0507.) The next day, Weiss wrote to another
member of IBM's human resources department, acknowledging that Torrico
had been cleared to resume work and seeking guidance as to IBM's
obligations concerning finding Torrico a new position in the United
States. (Id., Ex. 27.) Weiss also wrote to IBM's Executive
Compensation Programs division, expressing concern that he did not have
an appropriate job to offer Torrico. (Id., Ex. 28.) Two days
later, Weiss wrote to Torrico about several administrative issues arising
from Torrico's extended leave. Weiss explained to Torrico that while
Torrico had "indicated that Peter [Rowley] had committed to [Torrico], in
writing, that [Torrico] would come back to a job in the United States at
the same level or perhaps even higher," Weiss had spoken with Rowley, who
disclaimed knowledge of any
such obligation. (Id., Ex. 29.)
In an e-mail to Barsoum dated November 10, 1999, Weiss reiterated the
conditions under which Torrico could return to work, and he set forth
several `'talking points," including (1) that Rowley had not promised to
restore Torrico to a job at the same or a higher level, (2) that Torrico
could be assigned to a "Band 10 job in the White Plains area," and (3)
that IBM could give him "a maximum of 30 days to relocate to [the]
Tri-State area." (Seward Decl., Ex. 30 at 0566). Barsoum replied, "ok,
but what is the alternative solution? the package for him to leave?"
(Id.) According to Weiss, by mid-December 1999, he became
"concerned over the lack of progress by Mr. Torrico in finding a job,"
and he therefore e-mailed Torrico to explain "the situation." (Weiss
Decl. ¶ 9.) In his e-mail Weiss gave Torrico thirty days to relocate
to the United States and find a new position commensurate with his
skills. (Id., Ex. 5.) According to Weiss, this is the standard
deadline to find a new position given to employees returning from
assignments abroad without a pre-existing commitment from IBM. (Weiss
Decl. ¶ 9.) The same day, however, after speaking with Torrico, Weiss
extended the deadline by an additional two weeks, to January 31, 2000.
Torrico was unable to locate a new position with IBM by that date. (P.
Resp. to D. Rule 56.1 Stmt. ¶ 22.) IBM discharged Torrico on January
31, 2000. (P. Rule 56.1 Stmt. ¶ 42.) Torrico refused the severance
package IBM offered him (Weiss Decl. ¶ 12), evidently because he
would have been required by IBM to sign a release before accepting it. On
September 26, 2000, he filed a complaint with Equal Opportunity
Employment Commission ("EEOC") (D. Rule 56.1 Stmt. ¶ 26), and on
February 2, 2001, brought this action.
I. Standard for Summary Judgment
Summary judgment must be granted where "there is no genuine issue as to
any material fact and. . . . the moving party is entitled to a judgment
as a matter of law." Fed.R.Civ.P. 56(c). A fact is "material" if it
"might affect the outcome of the suit under the governing law"; an issue
of fact is genuine where "the evidence is such that a reasonable jury
could return a verdict for the nonmoving party." Anderson v. Liberty
Lobby. Inc., 477 U.S. 242, 248 (1986). On a motion for summary
judgment, the evidence must be viewed in the light most favorable to the
nonmoving party, and the Court ...