The opinion of the court was delivered by: MICHAEL MUKASEY, Chief Judge, District
Hossein Milani sues his former employer, International Business
Machines Corporation, Inc., ("IBM"), alleging discrimination
based on age and national origin in violation of the New York
State Human Rights Law, N.Y. Exec. Law § 296 (McKinney 2003)
("NYSHRL"), and the New York City Human Rights Law, N.Y.C. Admin.
Code §§ 8-107 and 8-502 et seq. ("NYCHRL"). IBM moves for
summary judgment on all claims and for sanctions, costs, and
attorney's fees. For the reasons stated below, IBM's motion for
summary judgment is granted, and the parties are directed to
submit additional briefs on the issue of sanctions.
The following facts are either undisputed or presented in the
light most favorable to plaintiff.
Milani was born in Iran on October 23, 1953,*fn1 and named
Hossein Ghasedi. (Affirmation of Ramon Pagan ("Pagan Aff."), Ex.
A ("Milani Aff.") ¶ 2) He moved to the United States in 1978 and
became a United States citizen in 1991. (Affirmation of Allan S.
Bloom ("Bloom Aff."), Ex. 1 ("Milani Dep.") at 12) He lives now
in Greenwich, Connecticut. (Id. at 9) A. Milani's Work History at IBM
After completing a Ph.D. in mechanical engineering at Columbia
University, Milani was hired by IBM in 1985 to work as an
associate engineer in its Brooklyn Data Systems Division. (Milani
Aff. ¶¶ 5-7) In May 1986, Milani was promoted to senior associate
engineer, and in mid-1987, he was transferred to IBM's Sales and
Marketing Division on Madison Avenue. (Id. ¶ 15; Milani Dep. at
234, 248-49)
At the Madison Avenue location, Milani started working as an
account systems engineer in the Higher Education Unit of the
Public Sector Branch. (Milani Aff. ¶ 16) Following a successful
year for his sales team, Milani was promoted to advisory systems
engineer in late 1988.*fn2 (Milani Dep. at 335-36)
According to his Work History Detail Report at IBM, Milani made
a lateral move from advisory systems engineer to advisory
marketing representative in 1991, and he was promoted to senior
marketing representative in 1993. (Pagan Aff., Ex. F) Between
1992 and 1994, Milani became a key member of the Higher Education sale team, and at one point he was responsible for 25%
of the work in his department, which had 11 other employees.
(Milani Aff. ¶ 27) In 1994, Milani was promoted to a Level 58
position at IBM, which is also known as "Band 8"; he describes
this promotion as the promotion he was first promised in
1988.*fn3 (Id. ¶ 29; Milani Dep. at 377) In 1995, Milani
was promoted from his Band 8, Level 58 position to a Band 9,
Level 59 position. (Milani Aff. ¶ 32; Pagan Aff., Ex. F)
In 1998, IBM required Milani to complete a rigorous and
extensive three-week program at Harvard Business School, paid for
by IBM. (Milani Dep. at 29) Milani was told that he needed to
complete the course in order to be eligible for a Band 10
position. (Milani Aff. ¶ 37) The course had a writing
requirement, but Milani never wrote the required paper because he
knew that another employee, Robert Barthelmes, had been promoted
to Band 10 without completing the paper. (Pagan Aff., Ex. H
("Barthelmes Dep.") at 53-54; Milani Dep. at 389; Milani Aff. ¶
37) Indeed, it is not clear that certification through the
Harvard course was even a prerequisite to a promotion to Band 10. (Compare Barthelmes Dep. at 54-55 with Pagan Aff., Ex. I
("Cooper Dep.") at 25-26) However, Milani was never promoted to
Band 10 at IBM. (Milani Aff. ¶ 37)
In July 1999, Barthelmes, who recently had been named Milani's
supervisor, promoted Milani to business unit executive, which was
functionally a team leader job; Milani was happy to get this
promotion and thought, "I am breaking into the management
opening, or at least I'm at the door."*fn4 (Milani Dep. at
391; Barthelmes Dep. at 55) Barthelmes gave Milani a favorable
evaluation for the second half of 1999 and wrote, "I'm very proud
to have Hossein as a member of the management team." (Milani Dep.
at 393; Pagan Aff., Ex. J, at 8) Barthelmes also recommended
Milani for a salary increase in 1999, which was approved by IBM
management. (Barthelmes Dep. at 63-64) At some point in 2000,
Barthelmes and his supervisor, Marianne Cooper, discussed
promoting Milani to Band 10, and they agreed that Milani should
be promoted once he was certified as having completed the Harvard
program. (Id. at 71)
In the summer of 2000, Milani completed "The Basic Blue", a
course at IBM's new management school that included a week-long
class and several weeks of self-study. (Milani Dep. at 30) During
his Basic Blue training, Milani became familiar with various IBM
employment policies, including IBM's prohibition on dating
subordinates.*fn5 (Id. at 93) At the end of 2000, Barthelmes again rated Milani very highly.
(Milani Dep. at 394-95; Pagan Aff., Ex. K) Between August 1999
and May 2001, Milani's monthly salary increased from $7,629.70 to
$9,161. (Pagan Aff., Ex. F) Milani also received a $500 bonus at
the end of 1999 and a $4,000 bonus at the end of 2000. (Id.)
Barthelmes and Milani had a good working relationship that Milani
characterized as "very cordial", and Barthelmes once evaluated
Milani as the top salesman in the Northeast. (Milani Dep. at 178)
As of September 2000, Milani was the business unit executive
for IBM education for the Northeast. (Id. at 67) He managed
education sales for New York, New Jersey, Pennsylvania, and
Delaware that included hardware, software, and services for the
education market. (Id.) As a business unit executive, Milani
had the power to promote and hire his subordinates so long as
Barthelmes "signed off" on the decisions. (Barthelmes Dep. at 81) B. Alleged Discrimination at IBM before 2001
When Milani first began work at IBM in 1985, he learned that
IBM had an employment policy against discrimination based on
national origin, age,*fn6 and other types of group status.
(Milani Dep. at 216; Milani Aff. ¶ 8) However, Milani's first
supervisor told him that IBM just used this policy as a "cover"
and that, if Milani ever filed an internal complaint about
disparate treatment, IBM would find a way to fire him. (Milani
Dep. at 216; Milani Aff. ¶ 8) At some later date, a Hispanic
colleague of Milani's was fired several weeks after complaining
that IBM had subjected him to disparate treatment because of his
ethnicity; IBM management referred to this employee as a
"troublemaker". (Milani Aff. ¶ 10)
Shortly after starting work at IBM in 1985, Milani realized
that his starting salary was approximately $50,000 below what
other people at IBM with his qualifications were receiving.
(Id. ¶ 9) Milani contacted Ms. Clark in IBM's human resources
department about this disparity, and Clark raised the issue with
Milani's Engineering Functional Manager, William Sheirich, and
recommended that Milani be promoted to advisory engineer. (Id.) Sheirich then reprimanded Milani for speaking to Clark and warned
him not to do so again. (Id.) Sheirich did not promote Milani
at that time, and he told Clark to warn Milani that "reporting
such disparities in this manner would result in [Milani's]
termination." (Id.) Shortly after Milani spoke to Clark about
his salary, Clark told Milani that his national origin would
prevent him from being promoted at IBM and that he was not
eligible for promotions in IBM's infrastructure. (Id. ¶ 11)
Milani did not believe Clark because he felt that IBM was true to
its stated policy against discrimination. (Id.)
In 1985, Sheirich promoted a white*fn7 employee of
unidentified national origin to staff engineer,*fn8 a
position two levels higher than associate engineer, but the
following year Sheirich agreed to promote Milani only one level,
to senior associate engineer.*fn9 (Milani Dep. at 234-35)
According to Milani, the promotion to senior associate engineer was "peanuts",
and he should have received a promotion to staff engineer or an
advisory position. (Id. at 235) In late 1986, Sheirich left
IBM's Brooklyn office amid allegations of discriminatory conduct
and was eventually replaced by Walter Federowicz, who was
African-American; Federowicz never did or said anything that
Milani considered discriminatory.*fn10 (Id. 239-40,
242-43; Milani Aff. ¶ 13)
In 1987, Milani asked Jack Koehler, who was then Corporate
Director of Manufacturing at IBM and later IBM President, what he
needed to do to become a senior vice president at IBM. (Milani
Dep. at 359-62) Koehler advised Milani to change his name from
Ghasedi, which Koehler said was "very foreign sounding" and hard
to pronounce. (Id. at 362-63; Milani Aff. ¶ 21) Koehler also
pointed out that foreign nationals did not rise to the top at IBM
and said that Milani would not be taken seriously as long as his
last name was Ghasedi. (Milani Dep. at 362-63; Milani Aff. ¶ 21)
In 1991 or 1992, Milani did change his last name from Ghasedi to
Milani as a result of his conversation with Koehler. (Milani Dep.
at 366-67; Milani Aff. ¶ 21) He chose "Milani" because his
supervisor suggested it and because his supervisor and most other
people in management in his IBM department were of Italian
descent. (Milani Dep. at 368-69; Milani Aff. ¶ 21) Milani was not aware of anyone else at IBM who
changed his or her name. (Milani Dep. at 370)
After he was transferred to IBM's Madison Avenue Office in
1987, Milani's new manager, Collette Alleva, did not assign him
to the account for Columbia University, which was a major
opportunity, and gave him the accounts for two universities that
were thought to be undesirable assignments. (Milani Dep. at
249-50) Although Alleva never said anything to Milani that he
found directly discriminatory, Milani contends that Alleva's
decision may have been motivated by discrimination because "the
language that they were using was basically you are not in the
mainstream." (Id. at 251) However, by 1988, Milani was assigned
to the team that worked on the Columbia University account.
(Id. at 325)
In 1988, Milani worked on a team with two IBM marketing
representatives who were of European descent; the marketing
representatives were responsible for finding sales opportunities,
and Milani would "close the deal" by presenting IBM's products
from a technical perspective and providing technical support.
(Id. at 318-19, 324; Milani Aff. ¶ 17) The team had a
successful year and surpassed its sales quota, but Milani
received no bonus, even though he believed he was entitled to a
$140,000 bonus*fn11 and the marketing representatives each received substantial bonuses.
(Milani Aff. ¶¶ 18-19; Milani Dep. at 319) Milani complained to
Frank Jules, the branch manager who had decided not to give
Milani a bonus, about the disparity in bonus payments and asked
Jules to open an inquiry. (Milani Dep. at 327, 329, 332; Milani
Aff. ¶ 20) Jules refused, telling Milani that he did not want IBM
headquarters to think that he was not paying people
fairly.*fn12 (Milani Dep. at 332) Milani once heard Jules
make an "off-color" remark that some employees of other
nationalities were not producing and were "just lazy". (Id.) In 1989, Jules asked Milani to assist IBM with a project that
required Milani to work an additional 30 hours per week. (Milani
Aff. ¶ 22) Some unidentified person at IBM promised Milani that
he would receive a promotion to senior systems engineer and a
large bonus if the project was a success. (Id. ¶ 23) However,
Milani received a bonus of only $2,000, even though the account
representative on the project, who was of European descent,
received a $20,000 bonus. (Id. ¶ 24; Milani Dep. at 344-45)
Milani also never received the promotion to senior systems
engineer that he had been promised, and instead the promotion
went to a white employee of unidentified national
origin.*fn13 (Milani Aff. ¶¶ 24-25) When Milani complained
to someone at IBM about not getting the promotion, he was told
not to compare himself to other employees, warned not to bring
the matter to human resources, and informed that he would either
keep his job or leave IBM and pursue the issue. (Id. ¶ 26)
Milani continued to be a valuable employee to IBM in the early
1990s, but despite his repeated requests, he was not promoted to a management position or moved to "area staff", which
was a popular route for attaining a management position at IBM.
(Id. ¶ 27; Milani Dep. at 353-54) By contrast, Milani's
then-manager, Martin Hewitt, immediately moved an employee of
Irish descent to "area staff" upon that employee's
request.*fn14 (Milani Dep. at 354-55; Milani Aff. ¶ 28)
Milani also claims that two other employees, whose national
origins are not identified, received more favorable promotions
and assignments in the early 1990s than he did.*fn15 (Milani
Aff. ¶ 29) In particular, one of these employees was brought in
from another department to work on the desirable Columbia
University account, an assignment which Milani had requested and
for which Milani believed himself better qualified. (Id. ¶ 30)
Milani was told by some unidentified person that he should not go
to human resources department to complain about such issues and
that he should "never be seen" in the "corridors of human
resources" unless he wanted to be labeled a troublemaker and treated adversely. (Id. ¶ 31)
In 1993 or 1994, someone told Milani that joining the Higher
Education team would allow him to be considered for a promotion
to Band 10, also known as Level 60, which was the lowest level of
management in IBM for the Higher Education department. (Id. ¶
32) In 1995, Milani was promoted from his Band 8, Level 58
position to a Band 9, Level 59 position rather than to a Band 10,
Level 60 position. (Id.; Pagan Aff., Ex. F) At the same time,
Robert Barthelmes was promoted from Level 58 to Level 60 in one
promotion, even though Barthelmes did not outperform Milani in
sales and had only a bachelor's degree in business
administration, as compared to Milani's Ph.D in mechanical
engineering. (Milani Aff. ¶ 32; Barthelmes Dep. at 9) Barthelmes,
who had worked at IBM in Massachusetts since graduating from
college in 1983, was approximately eight years younger than
Milani and of Irish origin. (Milani Aff. ¶ 32; Barthelmes Dep. at
7, 9) When Barthelmes was promoted, Milani discussed with him the
fact that Milani had been passed over for the two-level
promotion. (Milani Aff. ¶ 33) Barthelmes told Milani that he
believed Milani had been overlooked because of his nationality
and that IBM was making it impossible for Milani to get promoted
because it did not give him assignments that would enable him to be considered eligible for a Band 10
promotion.*fn16 (Id.) Specifically, Barthelmes told Milani
that he would never be promoted to Band 10 without a sales quota
of at least $25 million; this requirement was not put in writing,
and Milani was not promoted to Band 10 even though he reached the
sales quota Barthelmes suggested. (Id.) Milani did not go to
human resources about this issue because he feared retaliation
and termination. (Id. ¶ 34)
In approximately 1996, Milani was asked to cover the Cornell
University account for IBM, and some unidentified person at IBM
promised him a promotion to Band 10 if he took over the account
and produced positive results.*fn17 (Id. ¶ 35) Milani did
produce positive results but still was not promoted to Band 10.
(Id. ¶ 36)
In July 1999, Barthelmes became Milani's immediate supervisor,
and he promised to promote Milani to Band 10. (Id. ¶ 38)
Barthelmes never said anything to Milani that suggested prejudice against Milani because of age or national origin.
(Milani Dep. at 179-80) However, Barthelmes never gave Milani ...