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Robinson v. American Stock Exchange LLC.

October 18, 2007

RICHARD ROBINSON, PLAINTIFF,
v.
THE AMERICAN STOCK EXCHANGE LLC., DEFENDANT.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

OPINION & ORDER

Plaintiff Richard Robinson ("Robinson")*fn1 brings this action against Defendant American Stock Exchange LLC. ("AMEX"), his former employer, alleging racially discriminatory discharge and retaliation in violation of Title VII of the 1964 and 1991 Civil Rights Acts, 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981, New York State Executive Law § 296 and New York City Administrative Code § 8-502. Robinson also alleges breach of contract and violations of the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001, et seq. Defendant now moves for summary judgment on all claims. The Court grants Defendant's motion and dismisses Plaintiff's claims.

BACKGROUND*fn2

AMEX is a self-regulatory organization empowered to oversee its own securities market and the participants in that market, under the SEC's ultimate supervision. Robinson, an African-American man, started with AMEX as an at-will employee on February 18, 1976 and advanced to the position of Vice-President in charge of the Derivatives Trading Analysis Department ("DTA"). AMEX terminated Robinson's employment on June 20, 2003, because of his inappropriate handling of a request for information from the Securities and Exchange Commission ("SEC"). Robinson's claims are based on his allegedly insufficient bonus in 2002, his termination in June 2003, AMEX's failure to grant him severance benefits or a pro rata bonus for the first half of 2003, and AMEX's opposition to Robinson's application for unemployment benefits after his termination.

I. Robinson's Role at AMEX

Robinson ran DTA, which was responsible for "regulating the derivatives and options trading activity of AMEX floor members." Compl. ¶ 7. Robinson's "primary responsibility" was to ensure the market participants complied with AMEX and SEC regulations and "to review and determine whether investigations regarding alleged infractions warranted being forwarded to the AMEX's Enforcement Department or to any of the AMEX's Disciplinary Committees." Id. Robinson oversaw the Best Execution Department ("BED"), which was responsible for reviewing reports of trading floor activity that could identify violations of AMEX rules. BED would investigate potential violations and, if they proved serious enough, refer them to the Minor Floor Violations Disciplinary Committee ("MFVDC") for further action. The Manager of BED, John Riccardi ("Riccardi"), reported directly to Robinson. Robinson also supervised, inter alia, Thomas Riley ("Riley"), the Manager of the Options Analysis Department. During the relevant period Robinson reported to Glen Barrentine ("Barrentine"), the acting head of the Division of Member Firm Regulation.

II. Robinson's Relationship with Barrentine

Barrentine, a former peer of Robinson's, was appointed acting head of Member Firm Regulation in October 2002. When Barrentine was promoted, Robinson congratulated him, stating that "to say it is well-deserved would be a gross understatement." Affidavit of Peter A. Walter ("Walter Aff."), Ex. E. Robinson testified, however, that even before Barrentine became his supervisor he "felt that because [Robinson] was black Barrentine had a big problem with [his] overall personality," and that he "always got the feeling that [Barrentine] had a resistance to accepting anything [he] said." Walter Aff., Ex. C ("Robinson Tr.") at 91-92. Robinson admitted that Barrentine never acted in a discriminatory or unprofessional manner towards Robinson, or commented on his race, prior to October 2002. Robinson also "felt" that Barrentine discriminated against him based on his race after October 2002. Id. at 99. As to discriminatory actions, Robinson generally asserts that Barrentine regularly interrupted and cut him off when he was speaking in meetings, and "chose to question just about everything I did and everything I said." Id. at 109.

More particularly, Robinson testified that after Barrentine refereed a dispute between Robinson and David Fish ("Fish"), the Director of Rulings,*fn3 over a ruling on the exchange floor, Barrentine privately rebuked Robinson for the way he had spoken to Fish. Robinson testified that he and Fish, who is white, had been speaking to each other in an identical manner, and that the only reason for Barrentine's rebuke was that Robinson is black. In his affidavit, but not his deposition testimony, Robinson states that Barrentine told him he should not have spoken to Fish "like you are equal." Affidavit of Richard Robinson Opposing Summary Judgment ("Robinson Aff."), ¶ 50. Robinson also alleges in his affidavit that he saw various emails, not before the Court on this motion, in which Barrentine asked other AMEX officials how he could remove Robinson from his position. Finally, Robinson alleges in his affidavit that Barrentine gave him an unfairly low performance evaluation on or about February 14, 2003, leading to a reduced 2002 bonus. In that same affidavit, however, Robinson states that he "received a good performance appraisal and good bonus" from Barrentine. Id. at ¶ 44.

III. The SEC's March 18, 2003 Request for Information

On March 18, 2003,*fn4 Tina Barry ("Barry") of the SEC's Office of Compliance, Inspections and Examinations ("OCIE") requested Robinson produce a log of all investigations conducted by BED during the previous year and a log of all actions taken by MFVDC over the same period. Robinson testified that he asked Riley to provide the BED log and Riccardi to provide the MFVDC log.*fn5 Riley sent Robinson the requested BED log "approximately two hours" after Robinson requested it. Robinson Tr. at 122. Riccardi provided a final MFVDC late in the day, after a draft log was rejected by Robison due to inaccuracy. Robinson began to review the MFVDC log, but went home before he finished and did not complete his review by 10:30 a.m. the following morning, when Barrentine arrived to review the logs. Robinson never reviewed the BED log, but "based on the fact that it was prepared by Tom Riley, [he] had no concerns regarding its accuracy." Robinson Aff. at ¶ 26.

Robinson testified that based on his partial review of the MFVDC log, he realized that it included not only matters on which MFVDC took action, as requested by the SEC, but also matters simply forwarded to MFVDC on which no action had been taken. Robinson alleges, without explicit contradiction, that at the March 19, 2003 meeting he told Barrentine both that he had not finished reviewing the MFVDC log, and that it contained all matters forwarded to the MFVDC. Barrentine asked a few further questions about the logs, in what Robinson asserts was a hostile manner, and asked Robinson to draft a cover email to Barry explaining the information that AMEX was providing. While Robinson was drafting this email, he overheard Barrentine ask Riccardi what the MFVDC log represented and Riccardi answer, incorrectly, that it was all matters on which the MFVDC took action. Robinson alleges that he then confronted Barrentine about asking Riccardi the same question Robinson had just answered. During this confrontation he stated that Riccardi was incorrect about the contents of the log. He finally told Barrentine that "If you feel that a manager knows more about this log than I do, then go ahead. Take what he tells you." Robinson Tr. at 132.

Barrentine then had Riccardi send electronic copies of the logs to Robinson's computer so they could be attached to the email to the SEC. He also revised that email, and had it sent to the SEC with the attached logs. The revised email stated that the MFVDC log did not "show any matter referred to the committee for which the committee took no action" and that the BED log "only shows such matters as were referred to the committee." Affidavit of Glen Barrentine ("Barrentine Aff."), Ex. D. In addition to the inaccurate description of the MFVDC log, the email incorrectly described the contents of the BED log, which contained matters not referred MFVDC. More importantly, the BED log wrongly indicated, through its "Action Taken" notations, that some, if not most, of these matters had in fact been referred to MFVDC.

Though the email was sent from Robinson's account, he never checked to see whether it accurately represented the contents of the logs. Nor did he inform Barry or anyone else at the SEC or AMEX that inaccurate information might have been provided. At approximately 4:30 p.m. on March 19, Robinson allegedly asked Riccardi about the incorrect information he had given to Barrentine, and, when Riccardi admitted he had misspoken, told him to inform Barrentine of his error. Riccardi did not approach Barrentine until the afternoon of March 20, when he ...


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