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Yusufali F. Musaji v. Banco Do Brasil

June 24, 2011


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


Plaintiff pro se Yusufali F. Musaji commenced this action alleging discrimination on the basis of race, national origin, age, and religion, by filing a complaint in New York Supreme Court on October 20, 2010. Defendants Banco do Brasil, Luiz Bomfim, and Candida Pinto removed the action to this Court on November 12, 2010, on the basis of this Court's federal-question jurisdiction over Musaji's claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq. Now before the Court is defendants' motion to dismiss or alternatively, for partial summary judgment on most of Musaji's claims and Musaji's cross-motion to remand to state court.*fn1 For the reasons that follow, defendant's motion to dismiss is GRANTED, and Musaji's motion is DENIED.


The following facts are taken as true for the purposes of this motion.

Musaji, a fifty-six-year-old practicing Muslim of Kenyan origin, was hired as a Senior Information Technology (IT) Auditor by Banco do Brasil on March 29, 2008, and was assigned to Banco do Brasil's New York City branch office. (See Compl. ¶¶ 1, 5, 11.3.) At that office, defendant Bomfim is the manager of internal audits, and defendant Pinto is the manager of human resources. (Id. ¶¶ 3, 4.)

On April 15, 2008, Bomfim instructed Musaji to use only his middle initial instead of his full middle name, Fidahussein. (Id. ¶ 6.) Around the same time, Musaji was scheduled to go to Brasilia, Brazil to attend Banco do Brasil's yearly internal audit meeting. (Id.) Musaji's flight was to leave from JFK, and "Bomfim made [Musaji] use a local bus from his home and then airport shuttle from Newark Airport to JFK," which cost $60 instead of the $80 it would have cost to take a taxi. (Id.) Bomfim informed Musaji that "only Brazilian Managers were expected to use taxis and employees like [Musaji] who were not Brazilian were expected to use local transportation such as an airport shuttle or buses." (Id.) When Musaji complained that he was not being "treated in the same manner as the other Brazilian was" in that he had to use personal funds for local transportation and be reimbursed later instead of using a corporate credit card to pay, Bomfim told Musaji that he should, because of his age, consider other employment opportunities not requiring as much travel. (Id.) Also in April 2008, Bomfim commented that it was "unsafe to have Muslims around" to his assistant in Musaji's presence. (Id. ¶ 7.)

In September 2008, Musaji requested permission from Bomfim to leave work early to attend sunset prayers for his wife's recently-deceased uncle. (Id. ¶ 9.) Bomfim granted the request, but replied "that if Muslim men stood sideways during prayers, it would appear that they were 'fucking each other,'" and that "they do that to everyone else also." (Id.) Bomfim also received a traffic citation that month and remarked to another staff member in Musaji's presence that "he could not understand why the police would pick on him just because he looked like an Arab," and that "those bloody Muslim terrorists got everyone to be suspects." (Id. ¶ 10.) Turning to Musaji, Bomfim added, "And now I have you in the midst of all this. You could land me in jail instead of just a ticket." (Id.) When Musaji asked Bomfim why he made anti-Muslim comments, Bomfim told him that if he "did not like the anti-Muslim comments, 'he was not one of them,' and Banco Do Brasil was not an employer for him." (Id. ¶ 11.5.)

The complaint contains other general allegations of discrimination. Musaji alleges, for example, that he always had to use his personal funds on business trips and be reimbursed later instead of being able to use a corporate credit card, and that "[t]he other Bank employee of Brazilian origin was provided corporate credit cards or funds." (Id. ¶ 11.2.) Bomfim also "always referred to [Musaji] as a Poor Muslim from a poor Country" and "expected [Musaji] to live below the standards that" Banco do Brasil's "travel policy allowed." (Id. ¶ 11.3.) Bomfim told Musaji that "since [he] was from third world countries, he should know how to leave [sic] cheaply" and "would get angry . . . if [Musaji's] expenses were not cheap." (Id.) Bomfim also advised Musaji that "only the Brazilian nationals could be promoted to the level of management." (Id. ¶ 11.4.) Apparently, this policy was not uniform, as Anna Maria Santos, who was white and of Portuguese descent, became deputy manager. (Id.) Musaji was not promoted when audit manager positions became available, and when he asked Bomfim why Banco do Brasil "had promoted a Portuguese national to deputy manager in New York and yet told [Musaji] that the bank policy only promoted Brazilian nationals, Bomfim told [him] that [he] was too old." (Id.)

In addition, the complaint details incidents that purport to reflect Santos's discrimination against Musaji. First, Santos asked Musaji not to use the toilet next to Bomfim's office "because it was only reserved for managers who happen to be all Brazilians." (Id. ¶ 11.5) When Musaji complained about "such petty practices as having to convert each receipt that was in British pound to dollar" to be reimbursed for expenses, Santos "said that remark would go in [Musaji's] personal file for being insubordinate to the Brazilian managers." (Id.) When Musaji complained about not having been given a corporate credit card, Santos told him that "he was not Brazilian and therefore not subject to the same privileges as the Brazilian [sic] were" and that Banco do Brasil "had done him a favor because no one else would hire [him] because he was too old by American standards and Bomfim could see that also." (Id.)

Musaji and another IT auditor, Lilliana Caye Daudt, went on a business trip to London from September 22, 2008 to October 5, 2008. (Id. ¶ 11.) This overlapped with the Muslim holy month of Ramadan, which ran from September 1, 2008 to September 30, 2008. (Id. ¶ 12.) During this trip, both Musaji and Daudt were required to work on the weekdays, but had weekends free. (Id. ¶ 13.) Initially, both IT auditors were given accommodations at the City Hotel in London, but Daudt, who is Brazilian, did not check in there "because she felt it was in an ethnic and lower class background and believed that she did not have to stay there." (Id. ¶¶ 14, 15.) In contrast, Bomfim required Musaji to stay at the City Hotel, whose price was well under the amount allowable for lodging in London under Banco do Brasil's travel and expense policy. (See id. ¶ 17.) During the weekends, Musaji stayed at People, "a Muslim lodging place similar to a bed and breakfast, located near a mosque" in London. (Id. ¶ 18.) By doing so, he "was able to perform the required religious prayers and fasting during the weekends of the month of Ramadan." (Id.)

When Musaji and Daudt returned from their trip, they submitted reimbursement forms for their London expenses. (Id. ¶ 19.1.)*fn2 Daudt told Musaji that she was not required to submit receipts and was simply given the per diem amount. (Id.) In contrast, Musaji was required to submit receipts supporting his expenses in October 2008, even though his submitted expenses were less than the per diem rate. (Id. ¶ 19.2.) On November 3, 2008, Bomfim and Pinto terminated Musaji's employment on the basis that his expense receipts from London were fraudulent. (Id. ¶ 20.) Musaji was called into the Human Resources office and provided with a letter explaining his termination, which informed him that "the appearance of the receipts and the hand written notes on the receipts" from People and his "use of locations that are not customarily used by bank employees when traveling to London . . . led the Bank to conduct an investigation of [his] receipts" and concluded that Musaji had submitted "receipts that are not verifiable and that reflect non-existent business locations," violating company standards. (See id. ¶ 20 at 15-16.) Musaji thereafter applied and received unemployment insurance; in the course of doing so, he responded to his employer's allegations by asserting, among other things, that he did not exceed the per diem rate, that People was a legitimate business, and that he was not apprised of the applicable employer standards that he purportedly violated. (See id. ¶ 20 at 17-21.)

Musaji then filed a complaint with the New York City Commission on Human Rights (the "Commission"), who "found no probable cause of discrimination on the basis of religion." (Id. ¶ 20 at 21.) The Equal Employment Opportunity Commission ("EEOC") thereafter issued a right-to-sue letter "based on this charge," which adopted the findings of the Commission. (Id.; Asen Aff. Ex. E.) Musaji then brought this action on October 13, 2010, alleging violations of Title VII, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. (Id. ¶¶ 21-25.) Defendants thereafter removed the action to this Court and brought their motion to dismiss, or in the alternative, for summary judgment on January 5, 2011. Plaintiff opposed the motion and cross-moved for a remand to state court on February 14, 2011.


I.Motion to ...

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