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Mark B. Price v. Cushman & Wakefield

September 9, 2011

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



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

MEMORANDUM OPINION AND ORDER

Plaintiff commenced this action on October 16, 2008, against defendants Cushman & Wakefield, Inc. ("Cushman") and Joanne Podell, alleging employment discrimination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq.; breach of contract; violations of the duty of good faith and fair dealing; failure to pay commissions in violation of N.Y. Lab. Law § 190; unjust enrichment and quantum meruit; and tortious interference with contractual relations. Upon defendants' motion to dismiss, the Court dismissed the claims against Cushman for violations of the covenant of good faith and fair dealing and for unjust enrichment, as well as the claims against Podell for tortious interference. Price v. Cushman & Wakefield, Inc., 2009 WL 3075599 (S.D.N.Y. Sept. 26, 2009). Now before the Court is defendants' motion for summary judgment on the remaining claims. For the reasons that follow, that motion is GRANTED in part and DENIED in part.

BACKGROUND

I.The Parties

Defendant Cushman is a commercial real estate services firm offering, among other things, tenant and landlord brokerage services. (Defs.' Rule 56.1 Stmt. ¶ 1.) Defendant Podell was a senior broker in Cushman's Retail Brokerage Group during the relevant time period, and has been employed by Cushman since August 2002, when Cushman recruited her from New Spectrum Newmark Real Estate ("Newmark"). (Id. ¶¶ 2, 4.) By the spring of 2006, Podell had over fourteen years of experience as a commercial real estate broker. (Id. ¶ 3.)

Price worked as a broker in Cushman's New York City office from January 2003 through his termination on October 23, 2006. (Id. ¶¶ 7.) Prior to becoming a broker, Price was a pharmacist for approximately twenty years and currently works as a pharmacist. (Id. ¶ 8.) In 2000, Price decided to become a broker, and began work at Eastern Consolidated ("Eastern"), which specialized in commercial properties. (Price Decl. ¶ 3.)

II.Price Begins Employment with Cushman

In December 2002, two of Price's senior colleagues at Eastern, John Epstein and Charles Kinsgley informed Price that Cushman was recruiting them and asked whether he wished to join them. (Price Decl. ¶ 5; see Burke Affirmation ("Burke Affir.") Ex. S ("Kingsley Dep.") at 15-16.) Epstein, Kingsley, and Price, along with Yoav Olsner, (collectively, the "Eastern Group") engaged Howard Adler, a partner at the time with Fried, Frank, Harris, Shriver & Jacobson LLP, to negotiate their contracts with Cushman. (Defs.' Rule 56.1 Stmt. ¶ 52.) During the negotiations, Adler met with the Eastern Group about their contracts' terms; at least three of these meetings were held. (Id. ¶ 53.) Price unsuccessfully negotiated for an expense account but did obtain a side letter to his contract permitting him to continue working on real estate transactions with his former employer for twelve months. (Id. ¶ 55; Burke Affir. Ex. GG.) Price signed his contract, paragraph 10 of which is a jury waiver for actions "arising out of" the contract. (Burke Affir. Ex. R.) Price did not ask his counsel to negotiate this provision. (Defs.' Rule 56.1 Stmt. ¶ 58.)

The Eastern Group joined Cushman's Financial Services Brokerage Group in January 2003, where Price was a junior broker on the team. (Id. ¶ 9; Kingsley Dep. at 30.) In early 2004, Price was asked to leave the Eastern Group team. (Kingsley Dep. at 44-45; Burke Affir. Ex. E ("Price Dep.") at 958-61; Price Decl. ¶ 10.) Thereafter, Price worked independently at Cushman until Podell brought him onto her team in mid-2004. (Price Dep. at 966-67; Price Decl. ¶¶ 10, 11; Defs.' Rule 56.1 Stmt. ¶ 6.) According to Price, he and Podell negotiated an oral agreement at the start of their working relationship under which Price would receive a 20% commission on transactions they worked on that Podell originated, and a 50% commission on transactions that he originated. (Price Decl. ¶ 14.) According to Podell, the oral agreement only provided a "goal" for Price's compensation to be "at least the $200,000 he had been making." (Burke Affir. Ex. C ("Podell Dep.") at 219.)

III.Death of Price's Son and Price's Growing Religiosity

Price's son, Noah, born May 9, 2002, was diagnosed with a malignant brain tumor and hospitalized for most of his life until his death on October 1, 2005. (Defs.' Rule 56.1 Stmt. ¶¶ 60, 61.) Podell and Cushman were aware of Noah's illness and death. (Id. ¶ 62.)

Although Price had attended temples from the Chabad branch of Judaism since 2000, in 2003 and 2004, he became much more committed to Chabad. (Price Decl. ¶ 31; see also Price Dep. at 316-17, 327.) Price became stricter in his religious practices, keeping kosher, learning Hebrew, and going to temple and praying more often. (See Price Decl. ¶ 31; Price Dep. at 311-13, 332-33.) The Chabad community from Price's synagogue also helped Price by giving him a special Torah scribed for Noah, by offering baby-sitting and cooking services, and by assisting Price's family financially. (Price Dep. at 320-22, 330-31; Price Decl. ¶ 32.)

Price's increased religiosity also manifested itself in several ways at his workplace. He alleges that his religiosity aroused antagonism from Podell, who is Jewish but does not follow the teachings of Chabad or all of the religious practices that Price did during the relevant period. (See Podell Dep. at 239-49.) The incidents comprising the basis for that allegation are detailed below.

A.Instruction To Move Siddurs and To Keep the Workplace Neutral

In mid-2005, Price brought three or four siddurs (prayer books) to his cubicle. (Price Decl. ¶ 37; see also Price Dep. at 263.)*fn1 Price would read from the siddurs at work during the day whenever he felt the need to be comforted. (Price Dep. at 342.) According to Price, when Podell spotted the siddurs at Price's cubicle, she told him to move them out of sight. (Price Decl. ¶ 37; Price Dep. at 263.) Podell denies that she knew that Price had siddurs or that she told him to keep them out of sight. (Podell Dep. at 262-63.)

According to Price, Podell also made two comments at other times in 2005 disparaging him for his failure to keep the workplace neutral. First, Podell told Price, "You have to be generic," raised her pocketbook, and said, "This is what people respect." (Price Decl. ¶ 38.) And second, Podell reprimanded Price about a discussion he had with a client from Singapore regarding Chabad doctrine, saying that he should limit his discussions to business. (Id. ¶ 39.) Again, Podell denies telling Price that he had to keep the workplace neutral. (Podell Dep. at 262-63.)

B.E-mails During Rosh Hashanah

Noah's funeral took place on October 2, 2005. (Defs.' Rule 56.1 Stmt. ¶ 66.) After the funeral, Price desired to return to work as soon as possible to help distract him from thoughts of his son. (Id. ¶ 68.) However, Rosh Hashanah was observed for the three days following the funeral, and Price did not go to work during that time. (Id. ¶ 69.) Price testified that he requested not to receive e-mails on Rosh Hashanah, but nevertheless received e-mails from Podell during that time. (Price Dep. at 510-11, 514-15; see also Reingold Decl. at 65; Moore Decl. Ex. 52.) Afterwards, Price had a conversation with Podell in which he informed her that he "didn't appreciate that she sent the e-mails," to which Podell responded by saying "get out of my office or something to that effect." (Price Dep. at 514-15.) Podell denies that Price requested not to receive e-mails on Rosh Hashanah. (Podell Dep. at 269.)

C.Instruction To Shave

As part of the Jewish mourning process, Price was not supposed to shave for one month following his son's death. (Price Dep. at 524; Price Decl. ¶ 42.) At some point during this period, Podell informed Price that his unshaven look did not "present well." (Price Dep. at 568.) Price explained that he was not supposed to shave, and Podell told him that if that were the case, she would not take him to any meetings. (Price Dep. at 568; Price Decl. ¶ 42.) Eventually, Price did shave as a result of this interaction. (Price Dep. at 569.) Podell denies that she told Price that he could not attend business meetings unless he shaved. (Podell Dep. at 267-68.)

D.Comment Regarding Kapparot

Price also testified that sometime in October 2005, Podell told him that kapparot, a Chabad religious ritual, was a "barbaric" practice. (Price Dep. at 576.) Podell denies making this comment. (Podell Dep. at 255-56.)

E.Interference with Price's Praying at His Synagogue

Prior to Noah's death, Price usually arrived at work at 8:00 a.m. or earlier. (Price Dep. at 411-412.) After Noah's death, Price attended the Chabad temple before work, saying the traditional mourning prayers, the kaddish. (See Price Decl. ¶ 43.) This resulted in a later usual arrival time, around 8:30 to 9:00 a.m. (See Defs.' Rule 56.1 Stmt. ¶ 77; Price Decl. ¶ 44; Price Dep. at 413.) When he attended these services, he wore tefillin, a small leather box with straps holding parchment from sections of the Torah, which a Jewish mourner is to wear for nine months after a loved one's passing. (Id.)

A few weeks after Noah's death, Price arrived one day at work at 9:15 a.m. (the "Late Arrival Incident"). (Price Decl. ¶ 44; Price Dep. at 414-15.) That morning, Podell had been looking for some paperwork and had contacted Price. (See Defs.' Rule 56.1 Stmt. ¶ 82; see also Podell Dep. at 270; Price Dep. at 541.) Price, however, had not turned on his cell phone that morning until he arrived in the office and therefore never responded to Podell's e-mails or phone calls. (Defs.' Rule 56.1 Stmt. ¶¶ 80, 81.)

When he arrived at work, Podell asked him why he had not arrived earlier. (Price Decl. ¶ 44; Podell Dep. at 271-72.) Price informed her that he had been praying. (Price Decl. ¶ 44;

Podell Dep. at 272.) According to Price, Podell then told him to "[p]ray at night." (Id.) Price told her that he could not because tefillin can only be worn in the morning, and Podell then said, "We can't have this anymore, if you want to work for me." (Id.; Price Dep. at 538-40.) As she said this, she made a chopping motion with one hand onto the other. (Price Decl. ¶ 44; Price Dep. at 539-40.) Podell denies that these events took place. (Podell Dep. at 272-73.)

After this incident, Price began attending a non-Chabad temple in New Jersey that offered services at an earlier hour. (Price Decl. ¶ 49; see Price Dep. at 260, 527, 534, 543.) Members of the Chabad temple to which Price belonged, including the rabbis, withdrew their support of Price as a result of Price's switch to a non-Chabad temple. (Price Decl. ¶ 49; see also Price Dep. at 544-46.)

F.Denial of Permission To Hang a Mezuzah

In November 2005, Price wanted to hang a mezuzah, a parchment with Torah verses, in his cubicle; brokers at Cushman kept various personal items hanging on their cubicle walls. (Price Decl. ¶ 53; Price Dep. at 350-51.) A mezuzah is usually kept on a doorway or entrance to a home or other entryway. (Defs.' Rule 56.1 Stmt. ¶ 87.) Price desired to have one at his cubicle as something Jewish to give him comfort, and also because of its "religious aspect" of blessing his work area. (Defs.' Rule 56.1 Stmt. ¶ 88; Price Dep. at 357-58; Price Decl. ¶ 53.) Price testified that he asked Podell if he could hang the mezuzah in his cubicle, but that she refused. (Price Dep. at 351-52, 550.) He then asked Veronica Schaefer, an assistant facilities manager with Cushman if he could put a mezuzah up, and she also rejected his request. (Id. at 351-52, 554-55; see also Defs.' Rule 56.1 Stmt. ¶ 25.) Price testified that he did this in Podell's presence. (Id.) Podell denies that she was present for Price's request to Schaefer. (Burke Affir. Ex. U ("Podell Aff.") ¶ 23.)

G.Interruptions of Price's Prayers

Both before and after Noah's death, Price prayed during breaks at Cushman's offices. (Price Decl. ¶ 50.) After Noah's death, Price prayed the kaddish multiple times a day. (Price Dep. at 448-49.) According to Price, Podell interrupted his kaddish prayers twice in the period between Noah's death and when he stopped working with Podell. (Id. at 462-63.) Price performed the prayer standing, rocking gently back and forth with his feet together, and while facing east. (Id. at 346.) On the first occasion, Podell asked Price for a file while he was praying. (Id. at 463.) Price did not respond right away because of his belief that one is supposed to give kaddish complete attention and not speak to others during the prayer. (Id. at 464-65; see also Price Decl. ¶ 51.) When Price finished praying, he told Podell that he was saying kaddish, that she was not supposed to interrupt, and that he would not speak during the prayer. (Price Dep. at 465.) On the second occasion, Podell asked for a file, and when Price did not respond, she continued to prompt him to respond. (See Price Dep. at 466.) After he had finished praying, Price told Podell that he had already informed her that he could not be interrupted during kaddish. (Id.) Podell denies ever interrupting Price during his prayers. (Podell Dep. at 266.)

IV.Commission-Splitting Dispute

In early 2006, Price and Podell had a dispute about the commissions that Price would receive from a pending deal regarding Home Depot.*fn2 (Podell Dep. at 238-39, 286-89.) Price believed that he was entitled to a flat 20% commission on the deal, whereas Podell thought Price's commissions would be adjusted to meet a goal of $200,000 total annual compensation. (See id.; see also Price Decl. ¶ 57.) A flat 20% commission on the Home Depot deal would have, by itself, earned Price well over $200,000. (See Podell Dep. at 288-89; Moore Decl. Ex. 19 at 2.)

In March 2006, Podell e-mailed Price, proposing a commission-splitting arrangement under which Price would receive 20% of the first $1 million of commissions, 15% of the next $500,000, 10% of the $500,000 above that, 8% of the next $500,000, 6% of the $500,000 above that, and 2% on any commissions over $3 million. (Burke Affir. Ex. V.) In addition, the proposal noted that any deals that Price brought in would be split 50/50. (Id.)

Price, upset about Podell's proposed commission-splitting arrangement, sought the assistance of Dennis Waggner, Cushman's Managing Director for the New York tri-state region. (See Price Decl. ¶ 58; Moore Decl. Ex. 31; see also Burke Affir. Ex. P ("Waggner Dep.") at 25-26.) Waggner e-mailed Price on March 31, 2006, suggesting that Price seek the assistance of Suzy Reingold, Cushman's Executive Managing Director for New York City. (Price Decl. ¶ 58; Moore Decl. Ex. 31; see also Defs.' Rule 56.1 Stmt. ¶ 17.)

On April 5, 2006, Price e-mailed Reingold asking for a private meeting in which they could discuss Podell's proposal. (Defs.' Rule 56.1 Stmt. ¶ 100; Burke Affir. Ex. Y.) On April 10, 2006, Price and Reingold met to discuss Price's concerns with the proposal. (Burke Affir. Ex. K ("Reingold Dep.") at 102-03.)*fn3 On April 17, 2006, Podell e-mailed Reingold, copying Price, indicating that Price had rejected her proposal, that she sought to rescind it, and she was replacing the proposal with her consent "to the $200,000 promised earlier in his tenure." (Burke Affir. Ex. X.)

Reingold held a meeting on April 26, 2006, with Price, Podell, and Tani Brown,*fn4

Cushman's Director of Retail Services, to discuss Price's dissatisfaction with Podell's proposal and the future financial arrangement between Price and Podell. (Defs.' Rule 56.1 Stmt. ¶¶ 19, 103.) At the meeting, Price reiterated his position that he and Podell had an agreement under which he would receive 20% of the commission on deals that she originated. (See Price Decl. ¶ 62; Reingold Dep. at 115.) Thus, Podell's proposal was unacceptable to him, and he informed Reingold that he could no longer work with Podell. (Price Decl. ¶ 62; Reingold Dep. at 115.)

On May 3, 2006, Price sent a memo to Reingold memorializing his understanding of the commission-sharing agreement, itemizing the commission splits that had occurred between Podell and Price to that point, requesting that future commissions be split on an 80%-20% basis, and noting Price's "understanding . . . that the next step will require a recommendation from senior management prior to in-house arbitration." (Burke Affir. Ex. Z.) He sent a similar memo to Joseph Harbert, Cushman's Chief Operating Officer for the New York Metro region, on June 5, 2006. (See Burke Affir. Ex. NN; Defs.' Rule 56.1 Stmt. ¶ 16.) At some point, Reingold chose to resolve the commission-sharing issue with a "management decision," a "firm and binding" decision as to what should be done, as opposed to a "recommendation," although she had told Price that she would make a recommendation. (Reingold Dep. at 132-34.) On May 18, 2006, Reingold informed Price that she would be making a management decision in lieu of arbitration. (Price Dep. at 710; Price Decl. ¶ 66; see also Reingold Dep. at 172.) Price spoke with Kenneth Goldstein, Cushman's Assistant General Counsel and Assistant Secretary, about his arbitration rights, and Goldstein informed him that Price's employment contract reserved to Cushman the right to resolve the commission dispute by way of a management decision instead of arbitration. (Defs.' Rule 56.1 Stmt. ¶¶ 22, 111.)

On June 16, 2006, Reingold issued a decision which purported to resolve the commission dispute. (Burke Affir. Ex. AA.) Reingold reviewed nine deals that all involved Podell's clients, except for one, a North Face deal; North Face was a client of another senior retail broker who paid Podell and Price. (Defs.' Rule 56.1 Stmt. ¶¶ 115-117.) For all transactions other than the North Face deal, Reingold awarded Price commission shares of between one and five percent of the total commission. (Burke Affir. Ex. AA.)

V.Price's Complaints

During the course of these events, Price complained on several occasions to others at Cushman about perceived unfair treatment. For example, according to Price, on the day of the Late Arrival Incident, he was upset and crying when he explained to Tani Brown just after the incident that Podell had threatened to fire him and would not let him keep his siddurs in view, and asked Brown whether Podell could fire him. (Price Dep. at 598-601; Price Decl. ¶ 45.) Brown said that she would "take care of it." (Price Dep. at 600; Price Decl. ¶ 45.) According to Brown, Price did have a conversation with her, but said only Podell was "upset," and did not mention the siddurs or the threat of termination. (Burke Affir. Ex. L ("Brown Dep.") at 60-61, 69-72.)

About a week after that, Price says that he went to see Grace Ben-Ezra, who was the Assistant Director of Employee Relations at the time, and told her about the Late Arrival Incident. (Price Decl. ¶ 47; see also Price Dep. at 588-90;Defs.' Rule 56.1 Stmt. ¶¶ 23, 24.) Ben-Ezra does not recall this conversation happening and therefore did not take any action in response to it. (Burke Affir. Ex. N ("Ben-Ezra Dep.") at 87-90.) According to Price, he also sought Ben-Ezra's assistance on April 11, 2006, about Podell's proposed commission-splitting arrangement. (Price Decl. ¶ 59; Price Dep. at 591-95.) Price asked her if Podell "was acting this way because of [his] Chabad observances," and reminded Ben-Ezra of the Late Arrival Incident, to which Ben-Ezra's response was only to ask, "But isn't she [Podell] Jewish?" (Id.; see also Price Dep. at 594-95.) Ben-Ezra testified that she recalled meeting with Price on that date, but that the conversation only concerned the issue of commissions, and that she referred him to his "manager, whoever that was at the time." (Ben-Ezra Dep. at 111-13.)

Price also tried to enlist the support of Gene Spiegelman, an Executive Director at Cushman who lead his own team, on April 17, 2006, by sending him an e-mail advising him that Podell had rescinded her commission-splitting proposal and that "her new offer [was] $200,000." (Moore Decl. Ex. 54.) Spiegelman replied that it was not his place to get involved in this dispute and referred it to Tony Marano, Cushman's CEO for North America. (Id. Ex. 55; Defs.' Rule

56.1 Stmt. ¶ 15.) Marano, in turn, suggested that Price listen to what Reingold had to say. (Price Decl. ¶ 61.)

Price also complained to Edward Weiss, Cushman's vice chairman in brokerage. (Price Dep. at 642; Burke Affir. Ex. Q ("Weiss Dep.") at 60.) Price testified that he told Weiss about Reingold's refusal to allow Price to arbitrate his commission-splitting dispute and about the Late Arrival Incident. (Price Dep. at 642.) Weiss testified that he recalled only that he discussed the arbitration dispute with Price. (See Weiss Dep. at 60-64.)

Price also testified about a meeting between him and Reingold that followed his May 3, 2006 memorandum. (Price Dep. at 646-53; Price Decl. ¶ 65.) There, Reingold informed him that Podell had told her that on four deals for which Price felt he deserved compensation, Price deserved none because these deals had been done at Newmark, her prior employer. (Price Dep. at 646-47.) Price then told Reingold that Podell was a liar and that Podell would not "even allow me to pray in the morning, put the tefillin on to my son." (Id. at 647-50.)

VI.Price's Attempts To Access Files and His Move to the Eighth Floor

On April 28, 2006, after Price had stopped working with Podell, he e-mailed Podell to ask for access to a file he required for a meeting. (See Moore Decl. Ex. 22.) Podell did not respond until after the meeting took place. (See id.) Price and Podell continued to dispute Price's ability to access files for several days. On May 3, 2006, Podell denied a request for "files in JP Share marked 'Mark Price' and 'Mark Price temp,'" telling Price that she was "not prepared to provide [him] with any additional files at this time." (Id. Ex. 23.) Price then e-mailed Reingold in an attempt to gain access, telling Reingold that Podell was "trying to cripple my work." (Id. Ex. 24.) On May 19, 2006, Price sought and obtained Brown's assistance in gaining access to the files. (Id. Ex. 25.)

On June 29, 2006, Cushman moved Price from the tenth to the eighth floor. (Defs.' Rule 56.1 Stmt. ¶ 131.) Prior to that, Price had used a computer code that Podell had given him while they were working together to check the status of certain deals on Cushman's system. (Price Dep. at 493-94.) Cushman stated as the reason for its decision to move Price reports of Price's disruptive behavior on the tenth floor, including complaining about Cushman's handling of his commission-splitting dispute and his use of Podell's computer code. (See Reingold Dep. at 222-23; Brown Dep. at 191-92.)

VII.Working with Robert Mitchell

After he stopped working with Podell, Price worked on a deal with Robert Mitchell, another broker at Cushman, that closed within two months. (Price Dep. at 611-12.) Price testified that when Mitchell informed Brown that he had worked on the deal with Price, Brown discouraged Mitchell from giving work to Price directly, telling him that deals had to go through her, as she was "the one that has to designate who's the best person for that job." (Id. at 612.) Brown does not recall discouraging Mitchell from working with Price. (Brown Dep. at 190-91.)

VIII.Price's Appeal of Reingold's Decision and Price's Termination

Price was upset about the percentages Reingold allotted him, and asked Harbert and Marano to override the decision. (Defs.' Rule 56.1 Stmt. ¶¶ 126, 129.) On July 14, 2006, Price met with Harbert at Marano's suggestion. (Price Decl. ¶ 74; Harbert Dep. at 120-21; see Moore Decl. Ex. 56.) Harbert recalls that during this conversation, they talked about the unfairness Price perceived in Reingold's decision, about a deal that Price contended was undisputed and yet unpaid (the "137 Wooster Deal"), and about Price's son. (Harbert Dep. at 124-25.) Harbert agreed to meet again and that he would ...


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