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June 14, 2004.


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 ...

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