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August 9, 2004.

RALPH MONTE, Plaintiff,
ERNST & YOUNG LLP, Defendant.

The opinion of the court was delivered by: LAURA TAYLOR SWAIN, District Judge


Before the Court in this employment discrimination case is the motion of defendant Ernst & Young LLP ("Defendant" or "E&Y") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant seeks the dismissal of all of Plaintiff's claims and an award of costs and attorneys' fees.

  Plaintiff Ralph Monte ("Plaintiff") alleges that Defendant engaged in discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e; the Civil Rights Act of 1866, 42 U.S.C. § 1981, 1983, 1985, 1986, and 1988; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621; Section 296 of the New York State Executive Law ("NYSHRL"); and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code, Title 8, §§ 8-107-8-131. Plaintiff asserts claims of discrimination based on age and national origin in connection with the denial of a promotion and with the termination of Plaintiff's employment. In addition, Plaintiff claims that Defendant retaliated against him by firing him for complaining about Defendant's allegedly discriminatory employment practices. Plaintiff also asserts a hostile work environment claim and a claim of negligent hiring/retention. The Court has subject matter jurisdiction of Plaintiff's federal claims pursuant to 28 U.S.C. § 1331, and of his state and local law claims pursuant to 28 U.S.C. § 1367.

  The Court has considered thoroughly all of the parties' submissions pertaining to Defendant's motion. For the following reasons, Defendant's motion is granted in part and denied in part. BACKGROUND

  The following facts are undisputed unless characterized otherwise. Plaintiff is a male of Puerto Rican and Spanish descent and was born on February 18, 1960. (Compl. ¶¶ 22-25.) Defendant Ernst & Young LLP hired Plaintiff on November 28, 1994 as a Senior Manager in its Metropark, New Jersey office. (Def.'s Local Rule 56.1 Statement ("DR56.1") ¶ 2.) Plaintiff was hired to work in the Information Systems Assurance and Advisory Services practice group ("ISAAS"). (Id. ¶ 5.) In October 1998, E&Y consolidated the New York, New Jersey, and Connecticut ISAAS practice groups to form the Metro New York ISAAS group ("MNY ISAAS"). (Id. ¶ 7.) The leader of the MNY ISAAS group, Chris Vandenoever, formed a "Core Team" made up of Senior Managers and Partners, including Plaintiff, each of whom was put in charge of a distinct ISAAS practice area. (Id. ¶¶ 8-9.)

  In 1999, Plaintiff and three other Senior Managers in the MNY ISAAS group were considered for promotion to Partner. (Monte Dep., Ex. C to Perez Decl., at 45; Gockel Decl. ¶ 5.) Plaintiff claims that he was told by Vandenoever that he was the number-one rated Senior Manager and that he was the leading candidate of the group to be made Partner. (Monte Dep. at 45.) Neither Plaintiff nor any of the other candidates, all of whom were Caucasian, was promoted to Partner because of the poor financial state of the MNY ISAAS group. (Monte Dep. at 39, 45-46, 50; Doherty Decl. ¶ 4.) In December 1999, however, E&Y hired Sean Culbert as a "direct admit" Partner in the MNY ISAAS practice group. (Id. ¶ 33.) E&Y hired Culbert to build a systems implementation consulting practice in the MNY ISAAS group. (Doherty Decl. ¶ 7.) Prior to being hired by E&Y, Culbert worked as a consultant on large-scale systems implementation. (Id.) Neither Plaintiff nor any other member of the MNY ISAAS group had systems implementation consulting experience of the type Culbert possessed. (Id.) Plaintiff was 39 years old when Culbert was admitted as a Partner. (DR56.1 ¶ 39.)

  In approximately June of 1999, E&Y removed Vandenoever as the head of the MNY ISAAS group due in part to financial losses sustained by the group under his leadership. (Id. ¶ 12.) In approximately July of 1999, E&Y hired Steve Scharkss to replace Vandenoever. (Id. ¶ 13.) Scharkss implemented numerous changes, including disbanding the "Core Team," thereby removing all of the Senior Managers from their practice area leadership roles, and instituting a reduction-in-force to reduce the group's headcount. (Id. ¶ 14.) After Scharkss assumed leadership of MNY ISAAS, approximately ten to thirteen individuals were laid off, including three Senior Managers. (Gockel Decl. ¶ 2; Parker Dep., Ex. D to Perez Decl., at 2.) All three Senior Managers who were laid off were Caucasian. (Gockel Decl. ¶ 4.) One of these Senior Managers, Xenia Parker, testified that the majority of employees laid off after Scharkss' arrival were over the age of 40. (Parker Dep. at 10.)

  Senior Managers in the MNY ISAAS group were expected to network and sell projects to clients to keep themselves and their staffs busy with billable work. (Doherty Decl. ¶ 6.) Defendant claims that all Senior Managers, including Plaintiff, were expected to have a minimum utilization (the percentage of an individual's total time spent on billable work) of at least 55% during Vandenoever's tenure as the leader of the MNY ISAAS group, and 68% under Scharkss' leadership. (Monte Dep. at 117; Scharkss Dep., Ex. G to Perez Decl., at 172.) Plaintiff claims that, prior to the arrival of Scharkss, the Partners to whom Plaintiff reported informed him that the target utilization rates were not required of him because his roles and responsibilities differed from those of other Senior Managers. (Monte Dep. at 120.) Plaintiff claims that Mr. Johnston, one of the Partners to whom Plaintiff reported prior to Scharkss' arrival, informed Plaintiff that his roles were to be specifically focused on developing the practice, mentoring, hiring and recruiting. (Id. at 122.) According to Plaintiff's own calculation, his utilization percentage for fiscal year 2000 was 33.4%. (Monte Dep. at 202.) Plaintiff does not believe that he ever had an annual utilization rate over 55%. (Id. at 119.)

  Plaintiff asserts that, after Scharkss assumed leadership of the MNY ISAAS practice group, "there was an unequal disparity on how accounts were allocated" based on the age and national origin of employees within the group. (PR56.1 ¶ 22.) At deposition, Plaintiff identified four individuals, Xenia Parker, Dave Cozzens, Jerry Lockland, and Phil Karp, whom he alleged received less work and were assigned accounts inferior to those assigned to their younger coworkers. (Monte Dep. at 208.) Terri Craig, a former Partner in the MNY ISAAS group, testified at deposition that certain individuals, united by "common threads" of ethnicity, had difficulty "[getting] involved in projects and activities" following Scharkss' arrival at E&Y. (Craig Dep., Ex. F to Perez Decl., at 26.) Craig named four individuals, including Plaintiff, whom she believed had experienced such difficulty. (Id. at 30.) Three of these individuals were Hispanic and one was Asian. (Id.) Plaintiff alleges that his own workload diminished as a result of the inequitable distribution of accounts under Scharkss' leadership. (PR56.1 ¶ 23.)

  Specifically, Plaintiff asserts that Scharkss removed him from two accounts, Bristol-Meyers Squibb and the NYCE A.T.M. project, without offering any explanation. (Id. at 25.) Plaintiff also alleges that he was unfairly passed over for appointment as leader of the Metlife Demutualization Project in 2000. (PR56.1 ¶¶ 43-46.) According to Plaintiff, the role of project leader was assigned to a less qualified and less experienced Senior Manager, Keith Andrezewski, despite the fact that Plaintiff informed both Scharkss and another Partner, John Doherty, that he was available to manage the project. (Monte Dep. at 74-78.) Plaintiff asserts that Andrezewski is a white male in his early thirties who, at the time he was assigned to lead the MetLife project, had less than one year of experience at E&Y. (Monte Dep. at 75.)

  Terri Craig served as Plaintiff's counselor from approximately the fall of 1999 until the summer of 2000. (PR56.1 ¶ 26; DR56.1 ¶ 23.) Plaintiff claims that, because he had not been assigned to many projects, he took the initiative to create a plan with Ms. Craig to better utilize his abilities and unused time. (Monte Dep. at 88; Craig Dep. at 47.) As a result, Plaintiff became involved in a number of initiatives that Craig believed would help to launch new services in the Metro New York area and would be beneficial to E&Y's long-term financial health. (Id. ¶ 35; Craig Dep. at 51.) Craig testified that Scharkss was aware of Plaintiff's involvement with these types of projects, which did not generate many billable hours and thus contributed to Plaintiff's low utilization rate. (Craig Dep. at 50.) According to Plaintiff, Scharkss never communicated any dissatisfaction with his performance in this regard. (Monte Dep. at 397.)

  Craig testified that, around January of 2000, she became aware that Scharkss maintained a list of individuals, including Plaintiff, whom he wanted to terminate. (Craig Dep. at 44.) At deposition, Craig was asked whether there were any "recurring themes of ethnic background, gender or compensation" with respect to the individuals on the list. (Id. at 45.) She replied that "the majority of them would fall under . . . one of those categories." (Id.) Craig recalled the names of seven individuals, including Plaintiff, who were on the list and who had eventually been terminated or had "negotiated their way out of the firm." (Id. at 46.) Three of these individuals were Hispanic and one was Asian. (Id.) Craig also testified that there were Senior Managers who had utilization rates lower than that of Plaintiff who were not considered for termination by Scharkss because they were "being protected by other more senior partners within the Metro New York area." (Id. at 48.) When asked whether there were any "common themes or threads" among the protected Senior Managers, Craig affirmed that they "weren't Hispanic, weren't Asian, and they weren't females." (Id. at 49.)

  From approximately March until June 2000, the Partners (and one Principal) in the MNY ISAAS group participated in the fiscal year 2000 Senior Manager roundtables during which they discussed and evaluated the Senior Managers in the MNY ISAAS group and ranked them according to their "performance appraisal" rating as well as other factors, including their level of sales, utilization percentage, and their ability to lead and manage their staffs. (Doherty Decl. ¶ 9.) In preparation for the roundtables, Terri Craig prepared Plaintiff's performance appraisal for the period from October 1999 to January 2000. (Craig Dep. at 40-41.) Craig gave Plaintiff a rating of "Effective" in thirteen categories and a rating of "Exceptional" in one category. (Craig Performance Summary, Ex. F to Plevan Decl.) Craig gave Plaintiff a rating of "Improvement Needed" in the categories of "Scheduling/Utilization," "Sales," and "Self-Development." (Id.) Craig testified at deposition that Plaintiff was in the "middle of the pack" of the Senior Managers who were being evaluated and ranked during the roundtables. (Craig Dep. at 57.) However, Craig testified at deposition that she participated in only two roundtable meetings and that she believed there were other meetings that she did not know about. (Id. at 59.) Scharkss' testimony and Defendant's supporting documentation indicate that Plaintiff was ranked 12th out of the 14 Senior Managers in the MNY ISAAS group and was assigned a performance rating of "Marginally Effective" by the Partners. (Scharkss Dep. at 253; Performance Appraisal and Ranking Chart, Ex. K to Plevan Decl.) During the roundtables, the Partners expressed concerns about Plaintiff's low annual utilization, his substandard level of sales, and the fact that his performance was below that which was expected of a Senior Manager with the same number of years of experience as Plaintiff. (Valeri Dep., Ex. J to Perez Decl., at 67; Scharkss Dep. at 226-27; Doherty Decl. ¶ 10.) The Partners also discussed Plaintiff's allegedly poor performance on the New Jersey Housing Finance Mortgage Association project, which had been managed by Plaintiff and had incurred a $100,000 write-off. (Doherty Decl. ¶ 11; Scharkss Performance Summary, Ex. G to Plevan Decl.)

  During the roundtables, the MNY ISAAS practice group was deemed to be "top heavy," and the termination of three to five Senior Managers was discussed. (Gockel Decl. ¶ 5.) The MNY ISAAS practice group lost approximately $2.3 million in fiscal year 2000. (Doherty Decl. ¶ 12.) Plaintiff's salary was $200,000 in fiscal year 2000, making him the highest paid Senior Manager in the MNY ISAAS practice group. (Hackett Decl. ¶ 5.) At the end of the roundtables, the Partners prepared a list of the names of employees in the MNY ISAAS group, including Plaintiff, whose termination had been recommended.*fn1 (Doherty Decl. ¶ 9; Hackett Decl. ¶ 4.)

  In approximately July 2000, the MNY ISAAS group was divided into two subspecialty groups: IT Risk and STS (Security Technology Solutions). (DR56.1 ¶ 26.) Steve Scharkss assumed leadership of the STS practice and Steven Hackett assumed leadership of the IT Risk practice, the group to which Plaintiff was assigned. (Id. ¶¶ 27, 61.) Hackett was given the list prepared during the roundtables of the names of employees, including Plaintiff, whose termination had been recommended. (Hackett Decl. ¶ 4.)

  In early September 2000, Hackett spoke with Mike Wilk, the Managing Partner of the AABS group, about the recommendation to terminate Plaintiff. (Id. ¶ 6.) Wilk suggested that Hackett speak with some of the other Partners Plaintiff had worked for in the past, including Dave Milkowsky, Jim Johnston, and Steve Heil. (Id. ¶ 7.) Hackett spoke with each of these individuals shortly thereafter. (Id.) Hackett also spoke with John Doherty, John Valeri, and Bob Quinn, Partners in the MNY ISAAS group, to obtain their assessment of Plaintiff and to learn whether any of them could provide any compelling reasons not to terminate Plaintiff's employment. (Id. ¶ 8.) Hackett asserts that all of the Partners agreed that Monte should be terminated because he did not have enough work to keep himself effectively ...

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