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FRANCHITTI v. BLOOMBERG

August 12, 2005.

JEAN-CLAUDE FRANCHITTI, Plaintiff,
v.
BLOOMBERG, L.P., and SANDRA HUTCHINS, Defendants.



The opinion of the court was delivered by: JAMES FRANCIS, Magistrate Judge

REPORT AND RECOMMENDATION

Jean-Claude Franchitti brings this employment discrimination action pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"); 42 U.S.C. § 1981; the New York State Human Rights Law, N.Y. Exec. Law § 296 et seq.; and the New York City Human Rights Law, N.Y. City Admin. Code § 8-101 et seq. He alleges that his former employer, Bloomberg, L.P. ("Bloomberg"), and former supervisor, Sandra Hutchins, discriminated against him because he is French, created a hostile work environment, and retaliated against him for complaining. The defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons that follow, I recommend that the defendants' motion be granted in part and denied in part.

Background

  Unless otherwise stated, the following facts are either uncontested or construed most favorably to the plaintiff. Dr. Franchitti, a French citizen and legal permanent resident of the United States, began working for Bloomberg in April 2002. (Amended Complaint ("Am. Compl."), ¶¶ 11, 34). He was hired as a computer scientist and trainer, responsible for training employees and updating Bloomberg's technology. (Am. Compl., ¶ 35; Plaintiff's Reply to Defendants' Local Rule 56.1 Statement, dated May 18, 2005 ("Pl. Reply 56.1 Statement"), ¶ 6).

  Upon joining Bloomberg, Dr. Franchitti signed a confidentiality agreement that prohibited employees from using company equipment for personal purposes, participating in any competing entity, or attempting to induce company workers to leave Bloomberg. (Bloomberg Employee Confidentiality Agreement, dated April 22, 2002, at 2, attached as Exh. 7 to Affidavit of Thomas H. Golden ("Golden Aff.")). Bloomberg's employee handbook provides that an employee may be terminated for dishonesty, performing non-company work during business hours, improper use of company equipment, and excessive absence or tardiness. (Bloomberg's Employee Resources and Information Guide at 9-11, attached as Exh. 8 to Golden Aff.).

  A. Hostile Work Environment

  Dr. Franchitti identifies Mark Mandell as the chief protagonist in his hostile work environment claim. (Plaintiff's Reply and Objections to Defendants' First Set of Contention Interrogatories ("Pl. Interrog. Ans."), dated Feb. 28, 2005, at 2, included as Exh. 13 in Plaintiff's Appendix of Exhibits ("Pl. App.")). Mr. Mandell's responsibilities included preparing work schedules, or timetables, for the classes taught by Dr. Franchitti. (Deposition of Mark Mandell, dated Nov. 3, 2004 ("Mandell Dep."), at 9-10, included as Exh. 8 in Pl. App.). Dr. Franchitti claims that Mr. Mandell's offensive conduct was more frequent and pervasive than the conduct of any other employee. (Pl. Interrog. Ans. at 2).

  The offensive conduct attributed to Mr. Mandell includes: (1) Mr. Mandell's continued misspelling and misuse of French words in ten to fifteen e-mails sent to Dr. Franchitti, despite Dr. Franchitti's initial attempts to correct him and subsequent requests that Mr. Mandell address him only in English (Deposition of Jean-Claude Franchitti, dated Sept. 27, 2004 and Oct. 7, 2004 ("Pl. Dep."), at 90, 98, 105, included as Exh. 1 in Pl. App.); (2) Mr. Mandell's statement in August 2002 that it would be funny if he and Dr. Franchitti had a comedy show together in which the plaintiff would answer Mr. Mandell's questions with a French accent (Pl. Dep. at 102-03, 246); (3) Mr. Mandell's statement in September 2002 that Dr. Franchitti was not capable of preparing the work timetables because he is French (Pl. Dep. at 111); (4) Mr. Mandell's amazement that students would applaud after a lecture by Dr. Franchitti (Pl. Dep. at 267-68); (5) Mr. Mandell's comment that if Dr. Franchitti could teach, then so could he (Pl. Dep. at 268); and (6) Mr. Mandell's questioning of Dr. Franchitti's wife at a business dinner about whether "French guys go out a lot" or "do anything better than American guys[.]" (Deposition of Marianna Vertsman, dated Nov. 17, 2004, at 151-52, attached as Exh. 5 to Pl. App.).

  Dr. Franchitti also accuses other Bloomberg employees of engaging in discriminatory conduct. One co-worker feigned an inability to understand the plaintiff, constantly asked him to repeat himself because of his French accent, and belittled his degree from the University of Colorado and teaching position at New York University. (Pl. Dep. at 249-50). A second employee frequently greeted the plaintiff "bonjour, missieu,"*fn1 even after being asked by the plaintiff to address him only in English. (Pl. Dep. at 251-52). A third employee repeatedly addressed the plaintiff as "Frenchie" with a mocking expression on her face. (Pl. Dep. at 255, 257). Finally, several co-workers questioned the plaintiff about the French government's position on the war in Iraq. (Pl. Dep. at 254).

  Lastly, the plaintiff claims that his former supervisor, Dr. Hutchins, discriminated against him by asking students whether they could understand his accent and by stating that he "should really speak English" while teaching. (Pl. Dep. at 268-69). Other claims of harassment by Dr. Hutchins are connected with her purported retaliation. (Pl. Dep. at 281). These incidents are described below.

  Dr. Franchitti testified that his work environment made him feel humiliated. (Pl. Dep. at 353-54). While the plaintiff says his performance never declined, he does assert that his "feeling about being there suffered." (Pl. Dep. at 353).

  B. Retaliation

  According to Dr. Franchitti, Dr. Hutchins was the key player in efforts to retaliate against him. (Pl. Interrog. Ans. at 2). Dr. Franchitti states he twice complained to Dr. Hutchins about the hostile work environment. (Pl. Dep. at 399). He claims that Dr. Hutchins then began a "retaliatory campaign" that "searched for grounds to recommend [his] termination." (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion for Summary Judgment ("Pl. Memo.") at 18-19).

  The first instance of alleged retaliation was the plaintiff's October 2002 performance appraisal, which was written by Dr. Hutchins. In the appraisal, Dr. Hutchins spoke highly of Dr. Franchitti's performance but was critical of his interpersonal skills. (R&D Performance Appraisal dated Oct. 23, 2002 ("Appraisal"), at 2-3, included as Exh. 16 in Pl. App.). Dr. Hutchins wrote that the plaintiff should take a communications course and improve his teamwork. (Appraisal at 5). Dr. Franchitti objected to the report because he thought the criticisms were false and retaliatory. (Pl. Interrog. Ans. at 4). Dr. Franchitti also believed the communications course was a discriminatory reference to his French accent.*fn2 (Pl. Dep. at 281). The plaintiff claims he only signed the report after Glenn Jacoby, a manager at Bloomberg, promised Dr. Franchitti that he would investigate the complaints of discrimination. (Pl. Interrog. Ans. at 4). The plaintiff asserts that Dr. Hutchins and Mr. Jacoby then had an argument, during which Dr. Hutchins complained about Dr. Franchitti's discrimination claims. (Deposition of Joanna Gilberti, dated Dec. 6, 2004 ("Gilberti Dep."), included as Exh. 4 in Pl. App., at 25). Dr. Franchitti says this sequence of events led Dr. Hutchins to intensify her campaign against him. (Pl. Memo. at 18).

  In October 2002, Dr. Hutchins was told that Dr. Franchitti frequently came in late, left early, was absent, asked assistants to cover his classes, and seemed to be doing outside work during business hours. (Hutchins Dep. at 86, 95, 97-98). Dr. Hutchins then asked the Human Resources Department to investigate the plaintiff. (Hutchins Dep. at 92). The investigation was performed by Lisa Jennings. (Hutchins Dep. at 93).

  Ms. Jennings first met with the plaintiff in early November to discuss possible conflicts with work he was performing at New York University. (Pl. Dep. at 399). At this meeting, Dr. Franchitti says he informed Ms. Jennings of what he perceived to be a hostile work environment. (Pl. Dep. at 401).

  In November 2002, Dr. Hutchins discovered a document on the local hard drive of a Bloomberg computer that contained a to-do list created by the plaintiff. (Hutchins Dep. at 144). After reading portions of the list, Dr. Hutchins gave it to Ms. Jennings. (Hutchins Dep. at 149-50). The list contained dates and times for various meetings. ("To-do List," included as Exh. 22 in Pl. App., at BLP02401-03). Since several of these meetings were scheduled on workdays, Ms. Jennings inferred that Dr. Franchitti missed work to attend the meetings. (Deposition of Lisa Jennings dated Dec. 7, 2004 ("Jennings Dep."), included as Exh. 2 in Pl. App., at 91). The list also mentioned other Bloomberg employees, one of whom told Ms. Jennings that he was asked by the plaintiff to join a start-up company. (To-do List at BLP02401-03; Affidavit of Jon Edward Steiner, dated April 29, 2003, attached as Exh. 17 to Golden Aff., ¶ 3).

  The plaintiff eventually learned that he was being investigated for attempting to hire people away from Bloomberg and demanded a meeting with Ms. Jennings. (Pl. Dep. at 413-14). At the meeting, Ms. Jennings questioned the plaintiff about the To-do List, (Pl. Dep. at 417-18), and he was unable to answer some of the questions. (Pl. Reply 56.1 Statement at 23).

  Ms. Jennings reported her findings to Pamela Morris, a manager in Human Resources. (Affidavit of Pamela Morris, dated March 30, 2005 ("Morris Aff."), ¶¶ 1, 3-4). Ms. Morris concluded that the plaintiff may have been involved in an outside business and may have solicited other Bloomberg employees to work on non-Bloomberg projects. (Morris Aff., ¶ 6). She also concluded that Dr. Franchitti was not forthcoming when asked about the To-do List. (Morris Aff., ¶ 8). After Ms. Morris discussed the matter with Linda Norris, Bloomberg's global manager of Human Resources, it was decided that Dr. Franchitti should be terminated. (Morris Aff., ¶ 10). The plaintiff was informed of his termination on November 19, 2002. (Pl. Dep. at 430-31). Dr. Franchitti believes that Dr. Hutchins also recommended his firing. (Pl. Memo. at 32).

  C. Procedural History

  In March 2003, Dr. Franchitti filed a charge of discrimination with the Equal Employment Opportunity Commission. (Am. Compl., ¶ 9). It was dismissed on June 25, 2003, and the plaintiff was provided notice of his right to sue. (Dismissal and Notice of Rights, attached as Exh. 29 to Golden Aff.). Dr. Franchitti filed a pro se complaint in the instant action on September 24, 2003. (Am. Compl., ¶ 9). Since then, he retained counsel, and I granted the plaintiff's motion to amend his complaint on October 20, 2004.

  Subsequent discovery has produced additional evidence of the plaintiff's extracurricular activities while employed at Bloomberg. First, the plaintiff admits he met with a nonprofit group during Bloomberg business hours to explore the commercial viability of a software program he had designed with several students. (Pl. Reply 56.1 Statement at 11, 13; Pl. Interrog. Ans. at 6-7). Second, Dr. Franchitti admits he set up a corporation in Nevada so it could purchase real estate in Catskill, New York. (Pl. Reply 56.1 Statement at 8-9). Third, the plaintiff concedes he spoke with a co-worker about creating documentation for a project. (Pl. Dep. at 224-25).

  The defendants now move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. They assert that Dr. Franchitti's allegations of harassment do not constitute a hostile work environment. The defendants also claim that Dr. Franchitti has failed to demonstrate that the reasons ...


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