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March 1, 2004.


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 abroad notwithstanding, Page 2 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 Page 3 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 assignment:

  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 Page 4 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 Page 5 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 Page 6 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:
(a) Diagnosis
(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 limitations.
(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 frequent Page 7 traveling" and deprive him of adequate sleep and exercise. (Id. 3.)

  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 view:
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 Page 8 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. (Id.)

  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. Page 9


 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 ...

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