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Price v. Cushman & Wakefield

September 28, 2009

MARK B. PRICE, PLAINTIFF,
v.
CUSHMAN & WAKEFIELD, INC., AND JOANNE PODELL, DEFENDANTS.



The opinion of the court was delivered by: Richard J. Holwell, District Judge

MEMORANDUM OPINION AND ORDER

In this case, a New York commercial real estate broker is suing his former brokerage firm and his former supervisor at that firm. The plaintiff, Mark Price, alleges that the defendants, Cushman & Wakefield ("Cushman") and Joanne Podell, discriminated against him because of his religious beliefs and practices. Mr. Price claims that the discrimination culminated in defendants' refusal to pay him commissions he was owed and in defendants' termination of his employment. These acts, he claims, violated federal, state, and local anti-discrimination laws and also give rise to separate claims sounding in tort and contract.

Defendants now move to dismiss a number of plaintiff's claims and to strike his demand for a jury trial. For the reasons that follow, the Court grants in part and denies in part defendants' motion to dismiss. The Court denies defendants' motion to strike the jury demand with leave to renew at the close of discovery.

I. BACKGROUND

Because this is a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure, the Court accepts the allegations of the complaint as true and draws reasonable inferences in plaintiffs' favor. E.g., Rescuecom Corp. v. Google Inc., 562 F.3d 123, 124 (2d Cir. 2009). Still, "[f]actual allegations must be enough to raise a right of relief above the speculative level, on the assumption that all of the allegations in the complaint are true." Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (citation omitted).

A. The Complaint's Allegations

In January 2003, Cushman hired plaintiff as a broker within its Brokerage Group, which provides commercial real estate brokerage services in the New York metropolitan area. (Compl. ¶ 29.) From that point through June 2004, plaintiff worked successfully with several other brokers at Cushman on various real estate transactions. (Id. ¶ 30.)

Under Cushman's compensation scheme as outlined in the plaintiff's contract, a broker receives 50 percent of the gross commission earned on any transaction in which the broker "rendered services," and Cushman retains the remainder. (Id. ¶ 17.) Where more than one broker works on a deal, the 50 percent broker's fee is divided among the brokers involved. (Id.) Although the employment contract does not specify how brokers are to divide the 50 percent broker's fee when they work on a transaction together, it does say that the "Employee" promises to "abide by and accept C&W's decision" regarding the proper allocation. (Id. ¶ 18.) The contract also provides for dispute resolution procedures should the brokers disagree about what the proper allocation should be. (Id. ¶¶ 22--24.)

In mid-2004, defendant Podell, who was then Cushman's Senior Director of Retail Services, asked plaintiff to work with her "on an exclusive basis," and plaintiff agreed. (Id. ¶ 31.) At that time, plaintiff and Ms. Podell agreed that when they worked together on transactions that Ms. Podell originated, Ms. Podell would receive 80 percent of the broker's fee, and plaintiff would receive the other 20 percent. (Id. ¶ 33.) They also agreed that plaintiff would receive 50 percent of the broker's fee for transactions they handled together but that plaintiff originated. (Id.)

From mid-2004 until April 26, 2006, plaintiff worked with Ms. Podell, who acted as his supervisor at the firm. (Id. ¶32.) After plaintiff began working with Ms. Podell, she told him to work exclusively on transactions she had originated. (Id.) On their transactions, Ms. Podell would typically make the initial client contact and plaintiff would do most of the remaining work necessary to close the transaction. (Id. ¶ 35.) Between June 2004 and October 2005, the plaintiff and Ms. Podell worked successfully on a number of such transactions. (Id. ¶ 36.)

Cushman brokers report the commission fees they are due to Cushman in what is called a "revenue transmittal document." (Id. ¶ 80.) In that document, brokers are to record the total commission a transaction garners as well as the share of the broker's fee each broker on the transaction is to receive. (Id.) Cushman then knows whom to pay and how much to pay them. Between June 2004 and October 2005, the plaintiff was typically the one to record his transactions with Ms. Podell and the share of the broker's fee he and Ms. Podell were each to receive. (Id. ¶ 81.) In the transactions they handled during this period, plaintiff was always paid 20 percent of Ms. Podell's broker fee, consistent with the terms of their commission-splitting agreement. (Id. ¶ 36.)

In 2005, the plaintiff's situation changed. One of his young children died after a protracted three-year illness. (Id. ¶¶ 38, 46.) During the illness, the plaintiff had become increasingly observant of his Jewish faith and had embraced Chabad, a branch of Judaism. (Id. ¶ 47.) In 2005, plaintiff began attending synagogue each morning before work. (Id. ¶¶ 50--51.) He also began praying at Cushman's offices during work breaks. (Id. ¶¶ 52--54.) As a result of these religious practices, the complaint alleges, Ms. Podell began to discriminate against plaintiff at work. She began to interrupt him during his prayers; complained that he had failed to shave, even though he explained to her that his religious beliefs forbade him to shave for one month following his son's death; and repeatedly emailed him with work-related questions on Rosh Hashanah, a religious holiday. (Id. ¶¶ 56--61.) She eventually told plaintiff he could not pray at the office and indicated that he could be fired if he continued to do so. (Id. ¶¶ 66--68.) Plaintiff complained to other Cushman employees about Ms. Podell's behavior, but he saw no evidence that those employees ever took any action. (Id. ¶¶ 69--72.)

Although prior to 2006, the plaintiff had typically been the person to record, in a revenue transmittal document, the transactions he handled with Ms. Podell, in early 2006 Ms. Podell refused to allow him to record three such deals that had recently closed. (Id. ¶ 81.) Because she did not record them herself, plaintiff was unable to receive compensation for his work. (Id.) In late March or early April 2006, Ms. Podell proposed a new commission-splitting agreement with the plaintiff that would have granted him less favorable terms and that would have been retroactive to the beginning of 2006. (Id. ¶ 82.) Ms. Podell's proposal was inconsistent with the earlier agreed-upon arrangement, and the plaintiff rejected it. (Id. ¶ 84.) On April 26, 2006, the plaintiff informed Cushman's Managing Director of the New York Area that he would no longer be working with Ms. Podell. (Id. ¶ 87.) Soon thereafter, Ms. Podell booked two of the transactions she had previously prevented the plaintiff from booking, and categorized them as entirely her own. (Id. ¶ 89--90.)

At about this time, the plaintiff demanded that his employment contract's "Dispute Resolution Procedures" be used to resolve the allocation of commissions between himself and Ms. Podell. (Id. ¶ 91.) Those procedures provide for a preliminary dispute resolution process "with the assistance of the appropriate Branch Manager(s) or Regional Director(s)." (Id. ¶ 22--23.) If that process fails, and the dispute involves more than $100,000 in gross commissions, the contract provides for the appointment of a panel of three arbitrators to settle the dispute. (Id. ¶ 24.) When the plaintiff requested resolution of his dispute with Ms. Podell, Cushman's Regional Director stated that she intended to make a "final" decision on the dispute and that plaintiff would not be able to arbitrate the dispute further. (Id. ¶ 92--94.) Two months later, the Regional Director issued a ...


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