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Joseph v. Marco Polo Network

November 10, 2010


The opinion of the court was delivered by: Denise Cote, District Judge


Plaintiffs Eon Joseph ("Joseph"), Hansel Gregory ("Gregory"), Abe Medjoubi ("Medjoubi") and Sajjad Altaf ("Altaf"), former employees of Marco Polo Network, Inc., ("Marco Polo"), bring this lawsuit alleging employment discrimination pursuant to 28 U.S.C. § 1981 ("Section 1981"); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. ("Title VII"); and New York State and New York City human rights laws against Marco Polo, David Meredith ("Meredith"), and Anthony Orantes ("Orantes"). The plaintiffs allege that they were discriminated against on the basis of one or more of the following characteristics: age, religion, race, color, and national origin; and that they were fired in retaliation for their complaints of discrimination. Following the completion of discovery, the defendants have moved for summary judgment on all claims. For the following reasons, the motion is granted.


I. The Parties' Employment at Marco Polo

The following facts are undisputed or are presented in the light most favorable to the plaintiffs. Marco Polo is a "multi asset platform for electronic trading, local origination and global distribution of listed and unlisted securities in the emerging markets." The company's business model depends on its highly confidential computer network and electronic securities trading platform.*fn1 To attract and retain its clients, Marco Polo must convince them that its systems are highly secure. If the security of its clients' data is compromised, Marco Polo may be liable to its clients, face legal and regulatory repercussions, and suffer reputational harm and irreparable damage to its business.

The plaintiffs were hired in 2006 and 2007 to work in Marco Polo's Information Technology ("IT") Department. Specifically, Medjoubi was hired around August 21, 2006 as a network engineer. Altaf was hired as a systems administrator around January 22, 2007. Joseph was hired as the Vice President of Network Engineering around October 2007. Gregory was hired as a network engineer around November 26, 2007.

During the relevant time period, Medjoubi, Altaf, and Gregory reported to Beverly Davies ("Davies"), now the Senior Vice President of Technology, and Joseph. Davies and Joseph reported to Orantes, who was the Director of Network Operations, until February 2008. In late February 2008, Meredith was hired to serve as Marco Polo's Chief Technology Officer ("CTO"). At that time, Orantes ceased supervising any of the plaintiffs.

Medjoubi is Algerian-American and a Muslim. In May 2008, he was fifty-four years old. Altaf is Pakistani-American, describes himself as a "brown man," and is a Muslim. Joseph is Guyanese-American and black. In May 2008, he was fifty-one years old. Gregory is West-Indian-American and black. In 2008, Marco Polo employed approximately 93 individuals from the following racial and ethnic backgrounds: 27% Caucasian; 42% Hispanic; 12% Asian Indian; 13% Asian; and 5% African American.

The founder and CEO of Marco Polo, Vinode Ramgopal ("Ramgopal"), is originally from Guyana.

II. Meredith's Supervision of the IT Department

Meredith was hired in early 2008 to improve network performance and reliability, to lead the IT team, and to help the company expand into new markets. He immediately made clear to his team that he expected "results." Joseph, who had been hired a few months before Meredith, had been given a similar mission by management. Joseph's job was to improve the reliability of the Marco Polo network and the IT Department's performance.

Around the first week of March 2008, Marco Polo's network suffered a major outage that lasted forty-five minutes. A network outage of that length is "devastating" to a company like Marco Polo. The staff of the IT Department, including Joseph, Altaf, Medjoubi, and Gregory, was responsible for restoring the network's functionality. Meredith was unhappy with how the IT team handled the outage.

In that same month, Meredith and Altaf had a tense interaction in which Meredith told Altaf that an IT job was not a forty-hours-a-week job. This was contrary to Altaf's understanding of the policy Joseph put in place in the four or so months prior to Meredith's arrival, which had granted IT staff time off in exchange for overtime hours they worked. Altaf told Meredith that he would require a larger salary if he was made to work more than forty hours a week. Altaf testified that Meredith told him that if he kept agitating for extra pay or time off that there might not be a place in the company for him.

Over the course of the spring, Meredith hired three employees with whom he had previously worked elsewhere. Joseph admits that there was a need for more staff in the IT department. One of the new hires, Ed Cholar ("Cholar"), supervised Gregory.

On May 1 and 2, which were a Thursday and a Friday, Meredith gave oral performance reviews to each of the plaintiffs. From the plaintiffs' perspectives, the reviews were negative. Medjoubi testified that, among other things, Meredith critiqued Medjoubi's over-reliance on e-mail. Altaf testified that Meredith critiqued his failure to welcome one of the new IT employees and his communication skills. Joseph testified that Meredith told him he was not performing "up to par" and listed several items that Joseph had failed to accomplish. In Gregory's case, Meredith told him that it was difficult to assess his performance and that he needed to be more visible to managers other than Joseph, and that he should "align" himself with Cholar. In addition to these substantive remarks, each plaintiff alleges Meredith told him that he did not "fit" the image of the company or the direction in which the company was heading, and would be reviewed again in 60 days.

III. Altaf's May 2 and May 5 E-Mails

In response to his performance review, Altaf sent Ramgopal, Marco Polo's CEO, an e-mail on May 2, 2008, titled "60 Day Review & Threats of Termination." In the e-mail, Altaf asked to meet with Ramgopal because he had been "harassed and asked to leave" repeatedly by Meredith. Altaf complained that Meredith's review of him the prior day was vague and very negative despite Altaf's good performance. He rebutted several criticisms that he said Meredith had made about his work and his expected work hours. Altaf stated that "Meredith conveyed that . . . he wanted to terminate me and he will terminate me if I do not perform well on the job according to [the] above-mentioned standards. This is really not fair." According to the e-mail, Meredith had also "invited" other IT staff members to leave Marco Polo. Altaf expressed his belief that Meredith wanted to fire the current IT staff to make room for more of Meredith's former employees. In closing, Altaf told Ramgopal that, since Marco Polo lacked a human resources office, Altaf "ha[d] to come to [Ramgopal] to report any thing which I feel discriminatory."

The following Monday, May 5, Altaf e-mailed Ramgopal and Clifford Goldman ("Goldman"), Marco Polo's Chief Administrative Officer, an e-mail titled "Workplace Harassment, Gross MisManagement Of Funds, Discrimination And Violation of Equal Opportunity Employer Law" (the "May 5 E-Mail"). The May 5 E-Mail was "co-signed" by and copied to Medjoubi and Gregory. Altaf stated that the e-mail was his "formal complaint" about harassment, mismanagement, discrimination, and violations of the equal opportunity laws. In addition to repeating the arguments made in the May 2 e-mail, Altaf made several allegations of unfair treatment. First, Altaf said that he was "wrongly accused" by Meredith of failing to communicate effectively with clients, and that he was being judged more negatively than a colleague, Joe Ramos ("Ramos"), because he was naturally a shy person. He also accused Meredith of allowing another employee to work on one project at a time, but he expected Altaf to do several things at once. Altaf said that any performance review that did not take into account the records from ("Salesforce"), the program the IT Department used to assign and track work assignments given to all employees, was "totally biased and unfair and amounts to discrimination and workplace harassment."

Second, Altaf charged that Meredith's hiring of employees from his former company without advertising those positions violated the equal employment laws. He expressed the belief that Meredith intended to replace some or all of the four plaintiffs with more of his old colleagues, which would be discriminatory. Finally, Altaf described a lunch that he and Medjoubi attended in late April or early May with Orantes, at which the topic of his religion was discussed.*fn2

On May 5, Goldman e-mailed Altaf to tell him that he had received the May 5 E-Mail, that he would begin an investigation, and that he would report back to Altaf soon. On May 6, the May 2 and May 5 e-mails were brought to the attention of Hugh Blakeway Webb ("Webb"), the chairman of Marco Polo's Board of Directors. Webb and Marco Polo's compliance officer opened an investigation into Altaf's allegations. Webb planned to meet with Altaf on Thursday, May 8 to discuss the charges Altaf had made in the May 5 E-Mail.

IV. Plaintiffs' Absences and the Security Breach at Marco Polo

From May 5 to May 9, Joseph took a planned vacation cruise with his family; he had been granted permission to take the vacation days a week earlier. Both Medjoubi and Altaf requested vacation time for Thursday, May 8 and Friday, May 9. Additionally, Gregory had informed Marco Polo that he would not be in until the early afternoon on May 9 because he needed to take his mother to a doctor's appointment. In order to assure coverage of the IT Department, Davies granted Medjoubi's vacation request but asked Altaf to reschedule. On May 8 and 9, Altaf took two unscheduled sick days.*fn3 Thus, three of the four plaintiffs were not at work on that Thursday and Friday, and Gregory arrived at work late on Friday.

On May 9, an employee at Marco Polo's service desk reported to Davies that some files were missing from her desktop computer. After investigating, Davies suspected that the files were missing because someone had remotely accessed the employee's computer. To verify her suspicion, she checked the activity log for Marco Polo's Virtual Private Network ("VPN"), which allows Marco Polo employees to access company files on Marco Polo's network remotely. Davies learned that both Altaf and Medjoubi were logged into the network on May 9 at the same time using their VPN credentials, despite Altaf having taken the day as a sick day and Medjoubi having taken the day as a vacation day. Davies testified that, based on this information,*fn4 she "became concerned about Medjoubi and Altaf's intentions" and contacted Webb to tell him about the problems with the employee's desktop computer and Medjoubi and Altaf's VPN access. Webb and Davies contacted Meredith, who was in Chile on business, to apprise him of the situation.

The evening of May 9, Goldman received two error messages when he tried to send e-mails to Meredith. He contacted Davies to investigate. Davies discovered that Goldman's e-mail account had been reconfigured that evening so that duplicates of his ingoing and outgoing e-mails were being forwarded to two external e-mail accounts. Upon further investigation, Davies learned that Meredith's account had also been reconfigured in the same way, and that Marco Polo's general counsel's e-mail had been accessed without authorization. At this point, Davies feared that Marco Polo's network had been compromised and felt immense pressure to secure the network as soon as possible.

Together, Davies and Webb contacted Meredith in Chile again, and the three preliminarily concluded that Altaf and Medjoubi were responsible for the e-mail manipulations.*fn5

Meredith directed Davies to delete Altaf's and Medjoubi's VPN credentials to prevent them from accessing the Marco Polo network remotely. Davies did so and took other steps to secure the Marco Polo network that evening. In the course of securing the network, Davies discovered that all of the data in one network sub-folder had been deleted on Thursday, May 8. She also discovered that Gregory had re-created Altaf's VPN credentials for him after Davies had deleted those credentials.*fn6

At that point, Davies deleted Altaf's entire account rather than just his VPN access and deleted Gregory's VPN access as well.

Meredith contacted Noel Turner ("Turner"), a professional in the area of information systems security, over the weekend and asked him to conduct an immediate investigation into the security of the Marco Polo network and to identify any other unknown breaches or weaknesses. Turner told Meredith that he would begin his investigation on Monday morning.*fn7

The morning of May 11, a Sunday, Meredith e-mailed Joseph to tell him that there had been "issues" with Altaf, Medjoubi, and Gregory while he was away and that their remote access to the network had been removed. He asked Joseph not to have any contact with any of the three until Meredith had briefed him. Joseph replied that afternoon, saying "Wow. It must of [sic] been a very interesting week. I'm still in [F]lorida. We just got off the ship about an hour ago. I have a family crisis with my family here in [F]lorida. I will need to extend my vacation possible [sic] until [F]riday." In response, Meredith told Joseph that someone had used Joseph's VPN credentials in the early morning of May 11, and said that since it sounded like Joseph had not logged in, Meredith would de-activate his credentials as a precaution. Joseph quickly replied that he had used his laptop to log in to the network for the first time on May 10, but not on May 11. When Davies e-mailed Joseph to confirm when he had logged out of the May 10 VPN session, Joseph stated that he was "not sure" if he logged out or if the session timed out on its own. Later on Sunday, Davies learned that Joseph's VPN credentials had been used to log in to the VPN six times over the weekend. Meredith and Davies then contacted Joseph to clarify when and how he had used the VPN, and received a "vague and uncertain" explanation from him.*fn8 This explanation led them to suspect that Joseph was attempting to hamper their investigation.

V. Decision to Terminate the Plaintiffs' Employment

On Monday, May 12, Joseph was absent due to his family emergency, Medjoubi (who had taken the preceding Thursday and Friday as vacation days) was absent due to illness, and Altaf (who had taken the preceding Thursday and Friday as sick days) took a vacation day. Gregory did go to work, and when he arrived, Meredith and Davies questioned him about his recreation of Altaf's VPN credentials. Gregory admitted that he had re-created the account but stated that he had done nothing wrong. During the interview, Davies mentioned that Gregory had "signed that e-mail for Sajjad" (a reference to the May 5 E-Mail) and asked him why he had signed it instead of bringing the issue to her.*fn9 Based on the interview with Gregory on Monday morning, Marco Polo determined that Gregory was negligent or involved in the security breach and sent him home.

Also on Monday, Turner told Meredith that he had verified that the security breaches Davies discovered over the weekend had taken place. Turner also told Meredith that the IP address that had been used to create the e-mail forwarders had also been used to access Altaf's e-mail account. Finally, Turner advised Meredith that both Medjoubi and Altaf had accessed Salesforce on May 8 and 9, which is the website that is used to track the status of work assignments within the IT Department and also contains "information regarding business contacts, names, addresses and other critical business information." Every time an employee logs in to Salesforce, he or she is supposed to leave an entry showing what work was completed.*fn10 The plaintiffs admit that Medjoubi and Altaf accessed Salesforce on May 8 and 9 without making any such entries. At this news, Meredith feared that client contact information may have been stolen. Meredith promptly recommended to Webb that all four plaintiffs be fired.

After discussing the situation with Marco Polo's outside employment counsel, Webb also spoke with Ramgopal before deciding to discharge the plaintiffs. Joseph, Altaf, and Medjoubi were fired by letter dated May 12. The letters to Medjoubi and Altaf stated that the company was continuing its investigation into the allegations made in the May 5 E-Mail. Gregory was discharged by letter dated May 16. His letter also stated that the investigation related to the May 5 E-Mail was continuing.

In this lawsuit, Medjoubi alleges discrimination on the basis of his national origin, religion, and age.*fn11 Altaf alleges discrimination on the basis of his race or color, national origin, and religion. Joseph alleges discrimination on the basis of his race, national origin, and age. Gregory alleges discrimination on the basis of his race and national origin. All four plaintiffs also allege that they were fired in retaliation for complaining of discriminatory treatment.


Summary judgment may not be granted unless all of the submissions taken together "show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination, the court must view all facts "in the light most favorable" to the nonmoving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir. 2008).

Once the moving party has asserted facts showing that the non-movant's claims cannot be sustained, the opposing party must "set out specific facts showing a genuine issue for trial," and cannot "rely merely on allegations or denials" contained in the pleadings. Fed. R. Civ. P. 56(e); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir. 2009). "A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," as "[m]ere conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir. 2010) (citation omitted). Only disputes over material facts -- "facts that might affect the outcome of the suit under the governing law" -- will properly preclude the entry of summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (stating that the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the material facts").

In cases involving allegations of employment discrimination, the court must exercise "an extra measure of caution" in determining whether to grant summary judgment "because direct evidence of discriminatory intent is rare and such intent often must be inferred from circumstantial evidence." Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 603 (2d Cir. 2006) (citation omitted); see also Holcomb, 521 F.3d at 137. Even in an employment discrimination case, however, "a plaintiff must provide more than conclusory allegations to resist a motion for summary judgment." Holcomb, 521 F.3d at 137. The ultimate test for summary judgment in discrimination ...

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