United States District Court, S.D. New York
March 1, 2004.
JORGE TORRICO, Plaintiff. -v.- INTERNATIONAL BUSINESS MACHINES CORPORATION, Defendant
The opinion of the court was delivered by: GERARD LYNCH, District Judge
OPINION AND ORDER
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 must resolve all ambiguities and draw all
reasonable inferences in its favor. Id. at 255; Cronin v.
Aetna Life Ins. Co. 46 F.3d 196, 202 (2d Cir. 1995).
To defeat summary judgment, however, the nonmoving party "must do more
than simply show that there is some metaphysical doubt as to the material
facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
475 U.S. 574, 586 (1986). "[C]onclusory allegations or unsubstantiated
assertions" will not suffice. Scotto v. Almenas,
143 F.3d 105, 114 (2d Cir. 1998). Rather, the nonmoving party must "set forth
specific facts showing that there is a genuine issue for trial."
Fed.R.Civ.P. 56(e); Matsushita, 475 U.S. at 587 ("Where the record
taken as a whole could not lead a rational trier of fact to find for the
non-moving party, there is no `genuine issue for trial.'") (quoting First
Nat'l Bank v. Cities Service Co., 391 U.S. 253, 289 (1968)).
II. Preliminary Issues
IBM raises three threshold, and in its view dispositive, issues: (1)
that the NYHRL does not protect Torrico; (2) that he failed timely to
file a charge with the EEOC, statutorily barring his federal claims; and
(3) that Torrico does not qualify as an employee covered by the ADA.
A. Torrico's Status Under the NYHRL
At the pleading stage, the Court held that Torrico had stated a claim
for violation of the NYHRL because Torrico's complaint could be construed
to allege "either that `a discriminatory act was committed in New York or
that a New York State resident was discriminated against."'
Torrico. 213 F. Supp.2d at 407, quoting Iwankow v. Mobil
Corp., 541 N.Y.S.2d 428, 429 (1st. Dep't 1989). IBM urges the Court
to reconsider its construction of the NYHRL, arguing that the Court
erred, first, by equating "resident," as used in the statute, with
"domiciliary," see Torrico. 213 F. Supp.2d at 407-09; and
second, by adopting a "center of gravity" rather than an "interest"
analysis to determine the locus of Torrico's employment. See
id at 403-04. (D. Br. 10-14.) Neither argument affects the
Court's prior conclusions; ultimately, whether the NYHRL protects Torrico
remains an issue of fact for the jury.
The meaning of "resident" under the NYHRL need not be revisited because
the evidence developed in discovery establishes that Torrico does not
qualify as either a resident or a domiciliary of New York. Before he
began working for IBM, Torrico resided in Virginia, where he paid state
taxes, acquired a driver's license, registered his car, and owned a home.
(D. Rule 56.1 Stmt. ¶¶ 2-3.) He commuted to New York for several
months, but never relocated there. That IBM treated Torrico as a New York
resident for tax purposes (P. Resp. to D. Rule 56.1 Stmt. ¶ 3), a
fact that IBM in any event disputes (D. Resp. to P. Rule 56.1 Stmt ¶
10), cannot suffice to make Torrico a resident or, a fortiori, a
domiciliary, for domicile requires "[r]esidence in fact, coupled
with the intent to make the place of residence one's home." Texas v.
Florida, 306 U.S. 398, 424 (1939) (emphasis added). Torrico never
bought or rented a home or apartment an New York, and the only reason he
considered relocating there was that IBM/LA formerly
maintained its headquarters in Mt. Pleasant, New York. On June 31,
1999, when his assignment abroad ended, Torrico had no reason or intent
to return to New York. Even if he expected that IBM/LA would assign him
to a new position at that time, IBM/LA had by then moved its headquarters
to Miami, Florida. (D. Resp. to P. Rule 56.1 Stmt. ¶ 9.) Because
Torrico is not, and never has been, a resident or domiciliary of New
York, the NYHRL does not protect him as a New York "resident," N.Y. Exec.
L. § 298-a(1), however that term should properly be construed as a
matter of New York law. See Torrico, 213 F. Supp.2d at
As the Court previously held, however, Torrico may also qualify for
protection under the NYHRL if IBM's discriminatory conduct took place in
New York. Id. at 407. In this regard, IBM's argument that the
Court erred in its prior opinion by applying a "center of gravity" rather
than an "interest" analysis to determine the locus of Torrico's
employment is doubly misplaced. First, as the Court noted in that
Torrico's allegation that IBM's allegedly
discriminatory conduct took place in New
York-though insufficient, by itself, to support
his ADA claim, as noted above-would be sufficient
to support his NYHRL claim regardless of his place
of employment. Whether an employee who is not a
New York resident falls within the scope of the
NYHRL's protections depends not on the place of
employment, as it would for the claim of a
non-U.S. citizen under the ADA, but rather on
where the alleged acts of discrimination took
Id. at 407 n.11. IBM is a New York corporation, and the
evidence supports Torrico's contention that IBM's alleged discriminatory
acts-its refusal to accommodate Torrico's request for more time to seek a
new position and its ultimate discharge of Torrico-were taken by IBM
employees based in New York: Barsoum, Weiss, and perhaps others. Because
a reasonable juror could infer that IBM's allegedly discriminatory
conduct took place in New York, the Court cannot conclude
as a matter of law that the NYHRL does not protect him.*fn5
See Iwankow. 541 N.Y.S.2d at 429.
Second, IBM mistakenly suggests that the Court adopted New York's
"center of gravity" rule for purposes of the NYHRL analysis in
Torrico. (D. Br. 13-14.) The Court did not look to the "center
of gravity" rule for choice-of-law purposes, that is, to determine which
law, Chilean or New York, should apply to Torrico's anti-discrimination
claims. Were that the question, IBM might be correct that New York
choice-of-law principles require an "interest analysis" because the NYHRL
seeks to regulate conduct rather than allocate loss.*fn6 See Robins
v. Max Mara.
U.S.A. Inc., 923 F. Supp. 460, 465 (S.D.N.Y. 1995)
(applying the NYHRL rather than the New Jersey Law Against Discrimination
where plaintiff, a New Jersey resident, alleged that his employer, a U.S.
corporation headquartered in New York, allegedly discriminated against
him in New York). But no one has suggested that Chilean law should apply
to Torrico's claims. Under the NYHRL, his place of employment matters, if
at all, only insofar as it may inform the question where the alleged acts
of discrimination took place. See Torrico, 213 F. Supp.2d at
407 n. 11.
The Court discussed the "center of gravity" principle in the context of
Torrico's ADA claim, which, unlike his NYHRL claim, cannot survive if he
fails to establish his factual contention that IBM employed him in the
United States, not abroad, within the meaning of the ADA. See
id. at 403. The Court found that in analyzing this
factual issue, "some guidance can be drawn from general employment law,"
in particular, to determine the "center of gravity" of Torrico's
employment relationship with IBM for purposes of deciding whether IBM
employed him in the United States or Chile. Id. Torrico's
allegations sufficed to defeat IBM's motion to dismiss on this ground. Of
course, IBM now argues that Torrico has failed to adduce evidence to
substantiate those allegations, an argument the Court will address below.
But even were Torrico found to have been employed by IBM in Chile for
purposes of the ADA, he could still establish a violation of the NYHRL by
proving that IBM's discriminatory acts took place in New York, and
the evidence therefore suffices to defeat IBM's summary judgment
motion on this issue.
B. The Timeliness of Torrico's EEOC Complaint
IBM also argues that Torrico's ADA claims should be dismissed because
he failed timely to file a complaint with the EEOC. Ordinarily, an ADA
plaintiff, like a plaintiff asserting claims under Title VII of the Civil
Rights Act of 1964, must first timely file a complaint with the EEOC
See 42 U.S.C. § 12117(a) (incorporating the administrative
prerequisites to a Title VII action); Deravin v. Kerik,
335 F.3d 195, 200 (2d Cir. 2003); see also Millage
v. City of Sioux City. 258 F. Supp.2d 976, 983 (N.D. Iowa 2003).
Title 42 U.S.C. § 2000e-5(e)(1) establishes the period of limitations
for filing an EEOC complaint:
A charge. . . . shall be filed within one hundred
and eighty days after the alleged unlawful
employment practice occurred. . . ., except that
in a case of an unlawful employment practice with
respect to which the person aggrieved has
initially instituted proceedings with a State or
local agency with authority to grant or seek
relief from such practice. . . ., such charge
shall be filed by or on behalf of the person
aggrieved within three hundred days after the
alleged unlawful employment practice
occurred. . . .
Id. "A claim is time-barred if it is not filed within these
time limits." Nat'l R.R. Passenger Corp. v. Morgan.
536 U.S. 101, 109 (2002). Because "New York has an agency, the New York State
Division of Human Rights (`NYSDHR'), with authority to grant or seek
relief from unlawful employment practices," Briggs v. N.Y. State
Dep't of Transp., 233 F. Supp.2d 367, 374 (N.D.N.Y. 2002),
"[individuals] who first file a charges of discrimination with the NYSDHR
may avail themselves of the longer three hundred day period within which
they must file with the EEOC." Id.
It is undisputed that Torrico filed a charge with the EEOC on September
26, 2000, more than 180 but less than 300 days after IBM's alleged
unlawful acts of discrimination.*fn7 (D. Br. 15; P. Opp. Br. 6-7.) It is
also undisputed that Torrico did not himself initially file a charge with
the NYSDHR. (D. Br. 15; P. Opp. Br. 8-9 & n.6.) Torrico argues,
however, relying on Tewksbury v. Ottaway Newspapers,
192 F.3d 322 (2d Cir. 1999), that because the EEOC and the NYSDHR cooperate
pursuant to a worksharing agreement, as a matter of law, his charge must
be "deemed" filed with the NYSDHR on the same day he filed it with the
EEOC, triggering the 300-day rule and thereby rendering his EEOC charge
timely. (P. Opp. Br. 7-9.) IBM, citing Briggs. 233 F. Supp.2d
at 374, and Kodengada v. Int'l Bus. Mach. Corp., 88 F. Supp.2d 236,
241 (S.D.N.Y. 2000), both decided after Tewksbury,
maintains that Torrico misconstrues that decision and cannot avail
himself of the 300-day filing deadline. (D. Br. 15-16; D. Reply Br. 3-5.)
Resolution of IBM's limitations argument thus requires clarification of
the Second Circuit's holding in Tewksbury.
In Tewksbury, as here, the plaintiff filed a charge with the
EEOC more than 180 but less than 300 days after the defendant employer's
alleged discrimination. 192 F.3d at 325. Under a worksharing agreement
between the NYSDHR and the EEOC, each agency had designated the other as
its agent for purposes of receiving employment discrimination charges.
Id. at 327. The EEOC therefore transmitted the plaintiff's
charge to the NYSDHR shortly after its receipt of that
charge and instituted proceedings with the NYSDHR on his behalf.
Tewksbury, 192 F.3d at 325; see Love v. Pullman
Co.. 404 U.S. 522, 525 (1972) (holding that despite the literal
terms of § 2000e-5(e)(1), which suggest that the "person aggrieved"
must institute the proceedings with a state agency in order to trigger
the 300-day deadline, the EEOC can institute such proceedings on behalf
of an employment-discrimination plaintiff). The defendant in
Tewksbury argued that even if the plaintiff effectively
"instituted proceedings" with the NYSDHR by filing a charge with the
EEOC, "he did not do so `initially,' that is, before he filed with the
EEOC." Tewksbury. 192 F.3d at 325; see
42 U.S.C. § 2000e-5(e)(1) (300-day deadline applies where claimant
"initially instituted proceedings with [the appropriate] State
or local agency") (emphasis added).
The Second Circuit began its analysis in Tewksbury by
reviewing the Supreme Court's decision in Mohasco Corp. v.
Silver. 447 U.S. 807 (1980). There, the Court held that where the
EEOC received a charge from the plaintiff 291 days after the alleged
discriminatory conduct and immediately forwarded that charge to the
NYSDHR, the EEOC "initially instituted proceedings" with the NYSDHR on
the claimant's behalf, rendering his charge timely under the 300-day
rule. See Id. at 816-17. The Court reasoned that
because "the EEOC could not proceed until either state proceedings had
ended or 60 days had passed," see
42 U.S.C. § 2000e-5(c),*fn8 "the
proceedings were initially instituted with [the NYSDHR] prior to
their official institution with the EEOC." Mohasco Corp.. 447
U.S. at 816-17 (internal quotation marks omitted). The Second Circuit
noted that Mohasco did not control Tewksbury because
under the worksharing agreement applicable in Tewksbury, the
NYSDHR waived its right to the sixty-day exclusive jurisdiction period
specifically to enable the EEOC immediately to process charges upon
receipt, and under the federal regulations, "charges submitted to the
EEOC are deemed filed with it on the date of receipt if the
deferral-state agency has waived its right to the 60-day exclusive
jurisdiction period." 192 F.3d at 326. In Tewksbury, that is. unlike in
Mohasco. the worksharing agreement authorized the EEOC, notwithstanding
§ 2000e-5(c), to proceed immediately, hence "initially," before the
relevant state agency's corresponding proceedings had terminated.
The Second Circuit found this to be a distinction without a difference.
When a deferral-state agency waives its right to a sixty-day period of
exclusive jurisdiction, that waiver terminates the agency's proceedings
within the meaning of § 2000e-5(c). See EEOC v. Commercial
Office Prods. Co.. 486 U.S. 107, 114-20 (1988); Ford v. Bernard
Fineson Dev. Ctr., 81 F.3d 304, 309 (2d Cir. 1996). Under the
worksharing agreement in Tewksbury, when the EEOC received the
plaintiff's charge, it was deemed to have "instituted proceedings" with
the NYSDHR. See also 29 C.F.R. § 1626.10(c) ("Charges
received by one agency under [a worksharing] agreement shall be deemed
received by the other agency for purposes of [the timeliness of the
charge]."). But under the same agreement, whereby the NYSDHR waived its
sixty-day exclusive jurisdiction period, those proceedings terminated as
soon as they began. See Commercial Office Prods. Co.,
486 U.S. at 115; Ford, 81 F.3d at 309. `Thus, the NYSDHR
proceeding on Tewksbury's ADA charge formally began and ended upon the
EEOC's receipt of the charge but before Tewksbury's charge could be
deemed as filed with the EEOC. The charge was, accordingly, `initially'
filed with the NYSDHR, not the EEOC." Tewksbury. 192 F.3d at
327; see also EEOC v. Rotary Corp.. 297 F. Supp.2d 643,
No. 00 Civ. 1478, 2003 WL 23094694, at *4-*5 (N.D.N.Y. Dec. 29,
2003).*fn9 Tewksbury therefore held that if the EEOC and a
deferral-state agency enter into a worksharing arrangement whereby each
designates the other as agent for purposes of receiving charges, "an
administrative charge is subject to the 300-day limitations period, is
timely filed, and is `initially filed' with the deferral state-agency,
even though it was actually filed first with the EEOC."
Millage, 258 F. Supp.2d at 985 (so characterizing Tewksbury's
Between October 1, 1999, and September 30, 2000, the EEOC and the
NYSDHR were cooperating pursuant to a worksharing agreement virtually,
if not entirely, identical to the one at issue in Tewksbury.
(2d Seward Decl., Ex. 38.) Each agency
designate[d] the other as its agent for the
purpose of receiving and drafting charges
including those that are not jurisdictional with
the agency that initially receives the charges.
EEOC's receipt of charges on [NYSDHR's] behalf
will automatically initiate the proceedings of
both EEOC and the [NYSDHR] for the purposes of
Section 706(c) and (e)(1) of Title VII
[42 U.S.C. § 2000e-5(c) and 2000e-5(e)(1), respectively],
including [the identical requirements of the]
ADEA, EPA, and ADA.
(Id. § II(A).) Therefore, on September 26, 2000, when
Torrico filed a charge with the EEOC, the EEOC automatically "instituted
proceedings" with the NYSDHR. But because, under the same
worksharing agreement, the NYSDHR also waived its right to a
sixty-day exclusive jurisdiction period (id. § II(A)(1)),
the NYSDHR proceedings terminated as soon as they began. See
Tewksbury, 192 F.3d at 327. Consequently, "however paradoxical it
may seem," id., as a matter of law, Torrico "initially
instituted proceedings," 42 U.S.C. § 2000e-5(e)(1), with the NYSDHR,
thereby triggering application of the 300-day deadline for filing a
charge with the EEOC.*fn10
Accordingly, Torrico timely filed his EEOC
complaint on September 26, 2000, within 300 days after IBM's alleged
unlawful discriminatory conduct.
IBM's objection that no evidence establishes that the EEOC in
fact transmitted Torrico's complaint to the NYSDHR is unavailing,
for under federal law, and as expressly provided in the worksharing
agreement, one agency's receipt of a charge automatically
initiates proceedings in both agencies for purposes of the timeliness of
the charges. (2d Seward Decl., Ex. 38 § II(A).)
29 C.F.R. § 1626.10(c); Tewksbury. 192 F.3d at 327: see also Laquaglia
v. Rio Hotel & Casino, Inc., 186 F.3d 1172, 1176 (9th Cir. 1999);
Rotary Corp., 2003 WL 23094694, at *6-*7 (noting that some
courts require "proof that a charge filed with the EEOC was actually
transmitted to the deferral-state agency before dual-filing will be
found," but concluding that dual filing should be presumed because the
relevant worksharing agreement provided for it automatically, and under
29 C.F.R. § 1601.13(a)(3)(iii), which governs worksharing agreements,
"dual filing is not an
option it is a requirement"); cf. Ford,
81 F.3d at 312 ("[T]he timeliness of a claimant's filing. . . . should
not be made to depend upon whether one or the other agency follows
through on its undertakings under a Worksharing Agreement."). Whether the
EEOC physically or electronically transmitted Torrico's charge to the
NYSDHR is therefore irrelevant; as a matter of law, its receipt of that
charge "instituted proceedings" for purposes of §
2000e-5(e)(1).*fn11 Equally unavailing is IBM's objection that the
NYSDHR lacked jurisdiction to consider Torrico's charge. (D. Br. 16.)
Because Torrico adequately alleged that IBM committed discriminatory acts
in New York, Torrico. 213 F. Supp.2d at 407, the NYSDHR had
subject matter jurisdiction to consider his allegations, even if,
ultimately, the agency or a jury concludes that he failed to prove
C. Torrico's Status Under the ADA
The Court previously held that Torrico adequately alleged that IBM
employed him in the United States within the meaning of the ADA because
the "center of gravity" of his employment relationship with IBM remained
in the United States notwithstanding his temporary assignment abroad.
Torrico. 213 F. Supp.2d at 404. IBM urges the Court to
reconsider its analysis and hold that Torrico's long-term temporary
assignment to Chile renders him ineligible for coverage under the ADA
because his claims concern "employment in a foreign country,"
42 U.S.C. § 12111(4),
and the ADA does not apply extraterritorially to non-citizens
employed abroad. See Torrico. 213 F. Supp.2d at 399. The Court
considered and rejected this argument in its earlier opinion on the
ground that the locus of Torrico's employment for purposes of the ADA
could not be determined merely by noting that Torrico spent most of his
work time in Chile in the years culminating in his alleged discriminatory
discharge, id. at 403; rather, a variety of factors must be
considered to ascertain the "center of gravity" of Torrico's "entire
employment relationship" with IBM. W. (emphasis in original) In
Torrico. the Court set forth its analysis of this issue in
detail, see id. at 400-05, and that analysis need not
be repeated here except to clarify one point of evident confusion.
The gravamen of IBM's objection to the Court's prior ruling is that the
"center of gravity" approach, which courts commonly employ for
choice-of-law purposes in the context of breach of employment contract
claims, see id. at 403, has no place in the context
of actions based on claims of discrimination, which resembles a tort more
than a breach of contract. (D. Br. 13-14, 16-17 & n.6.) Again, IBM
misconstrues the role that the "center of gravity" test played in the
analysis in Torrico. It did not figure in that analysis as a
choice-of-law principle; neither party had raised any choice-of-law
issue. Torrico brought claims under the ADA, a federal statute. Neither
party argued then, or argues now, that any law but federal
applies to those claims. The question, then and now, is whether Torrico's
claims concern employment in the United States within the meaning of the
statute, in which case he may avail himself of the ADA, or employment in
a foreign country, in which case he may not. See Torrico.
213 F. Supp.2d at 400-401. Because none of the cases cited by IBM in its
motion to dismiss "involve[d] temporary, fixed-term assignments from an
existing, U.S.-based position like the Temporary Assignment at issue in
case," id. at 402, the Court held in Torrico.
as a matter of first impression, that to determine Torrico's place of
employment for purposes of the ADA, consideration should be given to the
factors relevant to determining the "center of gravity" of an employment
relationship for purposes of choice-of-law issues. See
id. at 403-404.
IBM cites two decisions that purportedly conflict with this holding. In
Shekoyan v. Silby International Corp., 217 F. Supp.2d 59
(D.D.C. 2002), the facts of which IBM characterizes as "indistinguishable
from Torrico's circumstances" (D. Br. 17), the defendant employer
recruited, trained, interviewed, and hired the plaintiff, a resident
alien, in the United States for a job in the Republic of Georgia. The
court held Georgia to be the locus of his employment for purposes of
Title VII. Id. at 67-68. By contrast, Torrico claims, and a
reasonable jury could find, IBM hired him to work in New York,
where he did in fact work for several months, and then sent him to Chile
temporarily. But throughout, Torrico claims, and a reasonable jury could
find, both he and IBM contemplated that at the conclusion of his
assignment he would be reassigned to another U.S. position.
Shekoyan is therefore not materially different from the cases
cited by IBM at the pleading stage and distinguished on similar grounds.
See Torrico. 213 F. Supp.2d at 401-02. In Mota v.
University of Texas Houston Health Science Center. 261 F.3d 512 (5th
Cir. 2001), the Fifth Circuit ruled that it did not need to decide
whether the plaintiff, a resident alien, could bring suit based on
alleged incidents of sexual harassment that happened during his
attendance at a three-day conference in Mexico, because the plaintiff's
hosfile work-environment claim also found support in allegations
regarding incidents in a variety of locations in the United States.*fn13
Id. at 524 & n.34. Contrary to IBM's suggestion,
nothing in that decision "expressly rejects the business trip analogy
this Court used." (D. Br. 17.) Accordingly, the Court adheres to its
Under the ADA, the locus of employment of a resident alien temporarily
deployed abroad depends on
a variety of factors, including (but not limited
to) whether any employment relationship had, in
fact, been created at the time of the alleged
discrimination, and if so, where that employment
relationship was created and the terms of
employment were negotiated; the intent of the
parties concerning the place of employment; the
actual or contemplated duties, benefits, and
reporting relationships for the position at
issue; the particular locations in which the
plaintiff performed those employment duties and
received those benefits; the relative duration of
the employee's assignments in various locations;
the parties' domiciles; and the place where the
allegedly discriminatory conduct took place.
Torrico, 213 F. Supp.2d at 403-04. Applying this analysis to
the evidence presently before the Court, IBM's summary judgment motion
IBM contends that, with discovery now complete, it cannot be disputed,
that IBM did not temporarily deploy Torrico to Chile, but rather moved
his job there permanently and then eliminated it. (D. Br. 1, 18; D. Reply
Br. 2.) That is not at all clear from the evidence. Construing the facts
in the light most favorable to Torrico: Torrico and IBM, a U.S.
corporation, formed their employment relationship in the United States,
where Torrico worked for about ten months prior to being assigned
temporarily to Chile. IBM treated Torrico as a U.S. employee in terms of
his salary and benefits, including by providing him stock options
available only to U.S. executive employees. It withheld U.S.
federal and state taxes from his salary. Torrico reported to supervisors
based in IBM/LA's New York office, and he returned to New York for
meetings about once every two months. IBM emphasized to Torrico in
writing the temporary nature of his assignment, cautioning him to bear
this fact in mind when considering "personal or job-related commitments,"
for IBM would determine the length of his assignment, and IBM/LA would
bear responsibility for planning Torrico's next position in the
United States. (Seward Decl., Ex. 1.)
IBM also represented in writing to the Department of Justice that
Torrico would be reassigned to a new position in the United States at the
conclusion of his assignment abroad. (Id., Ex. 2.) And when
Torrico's assignment abroad ended, both Torrico and IBM apparently
expected that Torrico would find a new position in the United States.
True, Torrico spent the vast majority of his time
performing his employment duties abroad, but that factor alone is
not decisive. Torrico. 213 F. Supp.2d at 403.
The Court therefore cannot say, as a matter of law, that the "center of
gravity" of Torrico's employment relationship with IBM was in Chile
rather than the United States. See id. ("[I]t is the
`center of gravity' of the entire employment relationship
between [Torrico] and [IBM], rather than one or more locations where
employment duties may have been performed that answers the
factual question of whether an individual is `employ[ed] in a foreign
country' or in the United States within the meaning of the ADA.")
(emphasis in original). IBM's motion for summary judgment on this ground
is accordingly denied,
III. The Merits
Both parties move for summary judgment on the merits of Torrico's
claims. IBM argues that even if Torrico qualifies as disabled under the
ADA and the NYHRL, a point that IBM does not dispute for purposes of its
motion (D. Br. 19 n.7), IBM did not discriminate against him on that
basis, and in any event, the accommodations he demanded were
unreasonable. (D. Br. 19-23.) Torrico argues that he has established a
prima facie case of disability discrimination under the ADA and that IBM
has failed to come forward with a non-discriminatory reason to justify
its treatment of him, entitling him to summary judgment on liability
under the burden-shifting test set forth in McDonnell Douglas Corp.
v. Green, 411 U.S. 792, 802-803 (1973). The motions will be
considered together, and both will be denied because a jury could find
for either party on the present record.
A. The ADA
To make out a prima facie case under the ADA, Torrico must establish
(1) that IBM is subject to the ADA; (2) that he suffers from a disability
within the meaning of the ADA; (3) that he is otherwise qualified to
perform the essential functions of his job, with or without reasonable
accommodation; and (4) that IBM took adverse employment action against
him because of his disability. See Giordano v. City of New
York. 274 F.3d 740, 747 (2d Cir. 2001). IBM does not dispute that it
is subject to the ADA, nor, for purposes of its motion, that Torrico
qualifies as disabled within the meaning of the ADA. (D. Br. 19 n.7.) Nor
can it be disputed that IBM's discharge of Torrico, or its refusal to
provide him more time to seek a new position with IBM before discharging
him, constitutes adverse employment action. See id.
at 747. The principal, if not sole, issue presented by these
cross-motions is whether IBM discharged Torrico because of his disability
rather than because of some nondiscriminatory reason.*fn15
A reasonable juror could infer that IBM discharged Torrico, or failed
to accommodate his request for additional time within which to find a new
job with IBM, because of his disability.*fn16
Torrico's employment circumstances, as IBM acknowledges, were "unique."
(D. Br. 20.) While on certified sick leave from his position with IBM,
Torrico's temporary assignment ended.*fn17 At that point, IBM asserts,
Torrico "was functionally unemployed within the company and would have to
find a position when the leave ended." (D. Rule 56.1 Stmt. ¶ 14.) In
September 1999, when Torrico became medically fit to fly again, Rock, an
IBM physician, asked two doctors in New York to evaluate Torrico
specifically to determine his capacity to return to work. (P.
Rule 56.1 Stmt. ¶¶ 25, 27.) And on November 2, 1999, Rock informed Barsoum that
Torrico could be returned to work on a part-time basis. (Seward Dec!.,
Ex. 26 at 0507.) Thereafter, Barsoum and Weiss discussed what to do about
Torrico's employment situation. The e-mail exchange between them, while
by no means conclusive, permits an inference of disability
discrimination. Weiss e-mailed Barsoum certain "talking points/'
including that Barsoum should deny that IBM promised to restore Torrico
to a position comparable to the one he left upon the conclusion of his
temporary assignment and give Torrico thirty days to find a new job.
(Seward Decl., Ex. 30 at 0566). Barsoum replied by inquiring under what
conditions IBM could discharge Torrico. (Id.) Barsoum knew that
Torrico's physicians had recommended that he be returned to work on a
part-time basis and under low-stress conditions. A reasonable juror could
infer that Barsoum decided
to discharge Torrico rather than face the potential difficulties
associated with accommodating his disability.
Moreover, it is not clear why IBM declined to give Torrico extra time
to locate a new job after he had been cleared to return to work by his
physicians. Torrico's condition incapacitated him temporarily and
compelled him to remain for several months in Chile, where he could not
seek a new position with IBM. A juror could find that IBM's refusal to
accommodate Torrico's request that Barsoum afford him a few extra months
to find a new job with IBM was unreasonable and motivated by a
discriminatory desire to discard a disabled employee rather than locate a
suitable position for him. While Weiss testified that a thirty-day
deadline is standard for employees returning from assignments abroad
without a pre-existing commitments from IBM (Weiss Decl. ¶ 9), a
juror could conclude either that Torrico did have a commitment
from IBM or that it was in any event unreasonable for IBM to refuse to
modify its usual thirty-day deadline to accommodate Torrico's unusual
circumstances. Hence, the evidence, while not conclusive, suffices to
create an issue of fact about IBM's real reason for discharging Torrico,
and accordingly, IBM's motion for summary judgment on the merits of
Torrico's ADA claims must be denied.
At the same time, Torrico cannot prevail as a matter of law on the
present record. IBM maintains that it discharged Torrico because "his
prior position had been eliminated prior to his medical leave and he
failed to find a new job within the time allotted to him to do so when he
returned from his leave." (D. Opp. Br. 3.) IBM offers affidavits from its
employees, including Weiss, corroborating that assertion. A jury, not the
Court, must decide whether to credit IBM's proffered reason and the
testimony of its employees, for the Court "do[es] not sit to judge
credibility on a motion for summary judgment." Neidich v.
Estate of Neidich, 222 F. Supp.2d 357, 368 (S.D.N.Y. 2002).
Moreover, while IBM does not itself seek summary judgment on this ground,
it rightly points out that Torrico's evidence that he is disabled within
the meaning of the ADA is not conclusive. See Giordano, 274
F.3d at 747-48 (discussing the definition of disability under the ADA).
Based on Torrico's deposition testimony, and the opinions of his
physicians, a jury could conclude that Torrico suffers from a disability
that substantially limits one or more of his major life activities,
see 42 U.S.C. § 12102(2)(A), but the evidence does not
establish that proposition as a matter of law. See Ryan v. Grae
& Rybicki, P.C., 135 F.3d 867, 872 (2d Cir. 1998) (noting that
"the determination whether an impairment `substantially limits' a major
life activity is fact specific"); see also Toyota Motor
Mfg. v. Williams. 534 U.S. 184, 692 (2002) (determination whether an
individual is disabled within the meaning of the ADA requires a
case-by-case inquiry). Accordingly, Torrico's motion for summary judgment
on liability under the ADA is denied.
B. The NYHRL
The definition of a disability under the NYHRL is broader than under
the ADA, Reeves v. Johnson Controls World Servs.,
140 F.3d 144, 154-55 (1998), but in other respects, the legal standards for
appraising claims made under these statutes "are essentially the same."
Woolley v. Broadview Networks, Inc., No. 01 Civ. 2526, 2003 WL
554754, at *8 (S.D.N.Y. Feb. 26, 2003). The evidence that defeats IBM's
motion for summary judgment on Torrico's ADA claim equally suffices to
defeat its motion on Torrico's NYHRL claim.*fn18
IV. Mitigation of Damages
Finally, IBM asks the Court to enter summary judgment limiting the
potential scope of Torrico's damages because he allegedly failed to
mitigate those damages by accepting a position with another company,
Mercantil.com, in February 2000. (D. Br. 23-25.) But Torrico testified
that this offer had been "effectively withdrawn" (Torrico Tr. 46) after
Mercantil.com learned of Torrico's medical history from IBM. Resolution
of this issue is premature at this stage, and it is clear that the
parties factually dispute the extent to which Torrico's acceptance of
this job would have been feasible. Accordingly, IBM's motion for partial
summary judgment limiting Torrico's damages is denied.
For the reasons stated, the parties' cross-motions for summary judgment
are denied. The parties shall appear before the Court for a pretrial
conference on April 16, 2004, at 3:45 P.M.