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Joseph C. James v. Countrywide Financial Corp.

February 2, 2012


The opinion of the court was delivered by: Hurley, Senior District Judge:


Plaintiff Joseph C. James commenced this action against defendants Countrywide Financial Corp., Countrywide Home Loans, Inc., and Bank of America, Corp. (collectively, "Countrywide") alleging employment discrimination and retaliation on the basis of race in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"), 42 U.S.C. § 1983 ("Section 1983"), and the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. ("NYHRL"). Plaintiff has also asserted claims against his former supervisors Robert Donovan, William Purschke, and Scott Horowitz (collectively, the "Individual Defendants") pursuant to Section 1981 and the NYHRL. Finally, plaintiff asserts claims against Countrywide for unpaid wages and compensation pursuant to the Fair Labor Standards Act, 29 U.S.C. § 201, et seq. ("FLSA") and New York Labor Law ("NYLL").

Presently before the Court is defendants' motion to dismiss the Amended Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). For the reasons set forth below, defendants' motion is granted in part and denied in part.


The following factual recitation is taken from the Amended Complaint and the exhibit attached thereto, as well as from certain administrative agency filings, of which the Court may take judicial notice.

Plaintiff's Employment

Plaintiff, an African-American male, was hired by Countrywide on February 24, 2003 to the position of Area Sales Manager. (Am. Compl. ¶ 16.) Jeffrey Creighton, then a Regional Vice President, supervised plaintiff. (Id.) Between 2003 and 2006, plaintiff was considered a "top producer" and was "ranked nationally in the top 1% of all sales personnel" for the 2004-2005 production years. (Id. ¶ 20.) On May 1, 2006, Creighton promoted plaintiff and assigned him to "manag[e] a team of 12 lower level Area Managers." (Id. ¶ 21.) Less than one year after this promotion, however, plaintiff's position was eliminated "due to a mass reduction-in-force." (Id. ¶ 22.) Plaintiff was informed that "his employment was being terminated effective immediately." (Id.)

Plaintiff's Scheduled Interview With Jobe Turini

Shortly thereafter, Countrywide's Full Spectrum Division contacted plaintiff to set up an interview for the position of Branch Manager in the Retail Division at Full Spectrum's retail branch in Lake Success, New York. (Id. ¶ 24.) Plaintiff viewed this as an "extremely beneficial career development." (Id. ¶ 27.) Plaintiff scheduled an interview with Regional Vice President Jobe Turini, the manager of the Lake Success branch. (Id. ¶ 28.) When plaintiff arrived for the interview on March 20, 2007, however, he "was told that Turini was not in the office." (Id. ¶¶ 29, 30.) Plaintiff was never able to speak to Turini, who did not return plaintiff's follow-up telephone calls, and Countrywide Human Resources was not able to reschedule the interview. (Id. ¶¶ 30, 32, 33.)

Plaintiff subsequently learned that Turini was a Caucasian male of Greek descent. (Id. ¶ 25.) Plaintiff alleges that he "was later told by a (former) employee who had worked directly with Turini . . . that Turini was known to strongly favor the hiring of Caucasians of Greek [descent] for managerial positions." (Id. ¶ 34.) Plaintiff knew that, prior to the March 2007 reduction-in-force, "his picture had been posted on Countrywide's intranet website," which was accessible to Turini. (Id. ¶ 35.) Plaintiff alleges that this experience was his "first warning that there was a stark and substantial difference in the treatment of minority employees within [ ] Countrywide['s] retail divisions." (Id. ¶ 31 (emphasis omitted).) According to plaintiff, Countrywide "knew or should have known that Turini had a history of preferential hiring of managers . . . who were Caucasian and of Greek descent to the exclusion of African American employees." (Id. ¶ 38 (emphasis omitted).) Plaintiff further asserts that Countrywide permitted Turini "to avoid interviewing or hiring Plaintiff for the Full Spectrum Lake Success office ([a] predominately Caucasian community)." (Id. ¶ 56.)

Plaintiff's Employment at the Massapequa Park Office

At plaintiff's request, Countrywide scheduled another interview for plaintiff, this time with Dennis Racio, the Area Manager for the Massapequa Park, New York office. (Id. ¶¶ 40,

41.) Following this interview, on March 29, 2007, plaintiff was offered the position of Sales Manager. (See id. ¶ 41.) Plaintiff's main assigned task was "to get this new Massapequa Park [ ] branch up and running and to recruit personnel for it." (Id. ¶ 42.) Plaintiff supervised Karen Laurence, the only Home Loan Consultant working at that branch office. (Id. ¶¶ 42, 44.) Plaintiff's Promotion to Branch Manager and Horowitz's Assignment as co-Branch Manager

On or about July 11, 2007, plaintiff was promoted to Branch Manager of the Massapequa Park branch. (Id. ¶ 43.) Less than one month later, on or about August 6, 2007, defendant Robert Donovan, a Regional Senior Vice President and plaintiff's new supervisor, informed plaintiff that he had personally recruited and hired defendant Scott Horowitz, a Caucasian male who had previously worked for a Countrywide competitor, to be plaintiff's co-Branch Manager.

(Id. ¶¶ 45-46.) Plaintiff "felt upstaged and disregarded by Defendant Donovan because he was denied any pre-hiring managerial input or any decision-making influence . . . in Horowitz's hiring even though he had been clearly delegated full authority for recruiting new hires for his branch." (Id. ¶ 47.)

Plaintiff cites this incident as an example of the lack of "respect" paid to him by "management[]," and alleges that he "was made to feel like the 'token' African American Branch Manager at the Massapequa Park branch office[,] which was located in a community having a (99.8%) predominately Caucasian population." (Id. ¶ 55.) Plaintiff alleges that, "[b]y hiring Horowitz, Donovan made sure that Plaintiff was not the only Branch Manager 'face' that Caucasian loan customers would see." (Id. ¶ 56.)

According to plaintiff, despite his superior work credentials and longer tenure as a Countrywide employee, he received a less "favorable compensation package" than Horowitz. (Id. ¶¶ 59, 63.) Plaintiff also alleges that he "was relegated the lion share of ministerial duties pertaining to Horowitz's hiring, including requisitioning business cards and stationary and obtaining desk top items for Horowitz." (Id. ¶ 62 (emphasis omitted).)

Plaintiff's Interactions With Purschke

Defendant William Purschke was hired by Countrywide on September 15, 2007. (Id. ¶ 64.) Although the Amended Complaint does not specify Purschke's job title, it appears that he acted in a supervisory capacity to both plaintiff and Horowitz while they served as co-Branch Managers. According to plaintiff, "Purschke previously managed Horowitz at a competitor company's branch." (Id. ¶ 64.)

Plaintiff alleges that Horowitz "received more favorable treatment" from Donovan and Purschke. (Id. ¶ 66.) Specifically, Purschke visited and "provided management support" to Horowitz but not plaintiff, and promptly returned Horowitz's telephone calls while failing to do the same for plaintiff. (Id. ¶ 66(a), (b).) Additionally, while Purschke attended Horowitz's sales presentations at real estate brokers' offices, as well as events at the request of other Caucasian Branch Managers at other locations (see id. ¶ 82), Purschke ignored and did not attend "Plaintiff's events," including an event sponsored by 100 Black Men of Long Island. (Id. ¶ 66(c).) Plaintiff alleges that both Purschke and Donovan subjected him to "harsh ridicule, intimidation and [a] condescending demeanor." (Id. ¶ 66(e).) With respect to Laurence, the sole employee under plaintiff's supervision, plaintiff asserts that Purschke and Donovan failed to provide any "senior management support" to plaintiff after he had a problem with Laurence's insubordinate behavior. (Id. ¶ 66(f).) Moreover, Purschke and Donovan failed to inform plaintiff that Laurence, the "top producer" in the branch, had requested an internal transfer and, as such, "sabotaged Plaintiff's ability to have any positive resolution to retain Laurence and her valuable production." (Id. ¶ 66(g), (h).)

Finally, plaintiff alleges that even though recruitment for his branch was supposed to be a top priority, his recruiter, Laurence Eisenstat, did not supply him with sufficient recruits, and "Purschke did nothing to ensure Plaintiff would receive recruits fairly and impartially." (Id. ¶ 83 (emphasis omitted).) In fact, plaintiff contends that Donovan, Purschke and Horowitz went even further by "influenc[ing], encourag[ing] and/or instruct[ing]" Eisenstat to assist them "in the systematic and intentional sabotage" of plaintiff's efforts to recruit for his branch. (Id. ¶ 84.) In that regard, various recruits were diverted from plaintiff and sent to "non-minority branch managers." (Id. (emphasis omitted).)

Plaintiff's November 28, 2007 Internal Complaint and Subsequent Events

On November 28, 2007, plaintiff sent an internal complaint to Sarah Zimmerman, a Countrywide Human Resources Manager, regarding "the discriminatory conduct and racial bias to which he was subjected." (Id. ¶ 66(i).) The same day, Purschke informed plaintiff that the Massapequa Park branch was being closed, plaintiff's Branch Manager position was to be eliminated, and that plaintiff's employment was being terminated effective November 30, 2007. (Id.)

During that conversation, Purschke informed plaintiff that Horowitz was being retained as a Branch Manager and transferred to another office. (Id. ¶ 66(j).) In response to plaintiff's inquiry about the possibility of a transfer, Purschke offered plaintiff "the option of being demoted to a sales manager [position] for less compensation and reporting to Horowitz as his new supervisor." (Id. (emphasis omitted).) Plaintiff accepted the demotion to a Sales Manager position and received a "substantial reduction in compensation" such that his compensation package was "materially inferior to what he had earned and what Horowitz continued to earn by being retained as Branch Manager." (Id. ¶ 66(k).) In particular, plaintiff's compensation package included "monthly draws" that were less than those received by Creighton, who was now working as a loan officer and a subordinate to plaintiff. (Id.) When plaintiff asked Purschke to increase his draws to match Creighton's, Purschke refused. (Id.) Finally, plaintiff alleges that he was "subjected to unusually slow processing of customer loan applications as compared to Horowitz and others," which adversely affected his compensation. (Id. ¶ 66(l).)

Plaintiff's December 18, 2007 Internal Complaint

On December 18, 2007, plaintiff filed a second internal complaint to Countrywide's Human Resources department, which "referenc[ed] Purschke's inequitable application of compensation practices and lack of management support." (Id. ¶ 72.) Human Resources determined that the complaint was "unsubstantiated" and closed the case, thereby causing plaintiff to "feel dejected, humiliated and helpless." (Id.)

The May 8, 2008 Incident and Aftermath

On May 8, 2008, plaintiff and Horowitz got into a confrontation in a parking lot that culminated with Horowitz repeatedly screaming "That's bullshit!" to plaintiff while making "threatening and menacing facial expressions." (Id. ¶ 73.) After this incident, Horowitz refused to assist plaintiff "with any customer loan processing problems" and, as a result, plaintiff's "expected May funding substantially declined." (Id. ¶ 74 (emphasis omitted).)

Plaintiff's Written Counseling

On May 15, 2008, Purschke presented plaintiff with a formal Written Counseling, dated May 7, 2008. (Id. ¶ 76.) The Written Counseling was purportedly intended to discipline plaintiff for his referral of a walk-in customer to his subordinate, and "warned of Plaintiff's potential termination." (Id. ¶¶ 76, 77.) Plaintiff alleges that "Horowitz was the instigator behind the underlying complaint," which plaintiff asserts was "false and unsubstantiated," and that Horowitz intended the Written Counseling "to threaten and dissuade Plaintiff from making complaints about Horowitz to the company." (Id. ¶ 76.) Specifically, the Written Counseling had come on the heels of plaintiff's filing of another internal complaint, in which he relayed a customer's allegations that Horowitz had breached company policy. (Id.)

On July 24, 2008, plaintiff received an email from Countrywide Human Resources representative Amanda Hart, which advised plaintiff that six of the eight items set forth in the May 7, 2008 Written Counseling were removed, and that a modified Written Counseling would be issued. (Id. ¶ 77.) To plaintiff's surprise, however, the modified Written Counseling presented to plaintiff by Donovan on July 29, 2008 included a new allegation that plaintiff "'demonstrated poor customer service' on May 25, 2008 by referring a walk-in customer to another salesperson on Plaintiff's team." (Id. ¶ 78.) Plaintiff alleges that this new allegation constituted nothing more than a "false[ ] reprimand[ ]" for plaintiff's "'managerial' decision." (Id.)

Post-Employment Retaliation

The Court presumes from the allegations in the Amended Complaint, as well as from the submissions of the parties, that plaintiff's employment at Countrywide ultimately came to an end. Specifically, plaintiff alleges that defendants engaged in "post-employment" retaliation against him. Plaintiff asserts that after he secured a new job, he informed his new supervisor, Brian Pasely, that he used to work with Donovan. Two days later, plaintiff's employment was terminated "without any further explanation." (Id. ¶¶ 109-11.) Plaintiff alleges that Donovan had informed Pasely about the internal complaints and subsequent formal discrimination charges filed by plaintiff. (Id. ¶¶ 112-13.)

Procedural History

On October 29, 2008, plaintiff filed a charge of discrimination (the "Charge") against "Countrywide Home Loans, Inc." with the New York State Division of Human Rights (the "SDHR"). (Defs.' Ex. A.)*fn1 The Charge was sent by the SDHR to the Equal Employment Opportunity Commission ("EEOC") for dual-filing purposes. (Defs.' Ex. B.) On March 23, 2010, the SDHR issued a Determination and Order After Investigation (the "SDHR Order") with a no probable cause finding. (Defs.' Ex. C.) The EEOC reviewed the action, presumably at plaintiff's request, and on July 29, 2010 issued a Dismissal and Notice of Rights ("Right to Sue Notice"), which notified plaintiff that the EEOC had adopted the findings of the SDHR.

Plaintiff commenced the present lawsuit on October 27, 2010. The original Complaint alleged violations of Title VII, the NYHRL, and Sections 1981 and 1983. Plaintiff filed the Amended Complaint on January 24, 2011, and added claims for breach of contract, unjust enrichment, and violations of the FLSA and NYLL. In his opposition papers to the present motion to dismiss, plaintiff has stated that he does not oppose the dismissal of his Section 1983 claims. (Pl.'s Opp'n at 2 n.2.) Accordingly, the Seventh Cause of Action, which alleges violations of Section 1983, is hereby dismissed in its entirety.


I. Legal Standard

Federal Rule of Civil Procedure 8(a)(2) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." The Supreme Court has recently clarified the pleading standard applicable in evaluating a motion to dismiss under Rule 12(b)(6).

First, in Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007), the Court disavowed the well-known statement in Conley v. Gibson, 355 U.S. 41, 45-46 (1957) that "a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." See Twombly, 550 U.S. at 561 (quoting Conley, 355 U.S. at 45-46). Instead, to survive a motion to dismiss under Twombly, a plaintiff must allege "enough facts to state a claim to relief that is plausible on its face." Id. at 570.

While a complaint attacked by a Rule 12(b)(6) motion to dismiss does not need detailed factual allegations, a plaintiff's obligation to provide the grounds of his entitlement to relief requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action will not do. Factual allegations must be enough to raise a right to relief above the speculative ...

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