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Jean-Phillipe Pibouin v. Ca

March 31, 2012


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


Plaintiff brings this employment action pursuant to New York Human Rights Law, N.Y. Exec. Law § 296 ("NYHRL"), alleging that defendant discriminated against him based on his marital status and national origin. He also brings claims for unpaid commissions based on New York Labor Law ("NYLL") § 190, et seq. and state equitable remedies, and for unpaid severance.*fn1 Now before the Court is defendants' motion for summary judgment. For the reasons set forth below, defendants' motion is granted and plaintiff's claims are dismissed.


Plaintiff, who is of French descent, began his employment with CA, Inc. ("CA") in 1987. (Am. Compl. ¶ 45.) After resigning in 1990 to work for a competitor, he returned to the company in 1997 and was assigned to its Islandia, New York office. (Am. Compl. ¶ 45; Deposition of Jean-Phillipe Pibouin ("Pibouin Dep.") 41-44.) In 1999, he was promoted to Regional Vice-President in the Global Accounts Group, (Pibouin Dep. 54), and two years later, relocated to Manhattan to take on a sales-manager position. Following a restructuring at the company in 2004, plaintiff was reassigned as an Account Director (Pibouin 95-101) where he reported to a former fellow sales manager, Steve Perlman (Pibouin 103-04). At each of these changes to his position, plaintiff was offered salary and bonus packages in line with similarly situated employees with the same title. (Affidavit of Anjali Jamdar ("Jamdar Aff.") ¶¶ 19-21.)

In 2005, Perlman gave plaintiff a year-end performance review in which he was determined to have "Partially Achieved Expected Results." (Performance Appraisal, attached to the Affidavit of Jonathon Stoler ("Stoler Aff.") as Exhibit S.) The review noted plaintiff's difficulty adjusting to his new position and encouraged him to "evolve as the new business model evolves." (Id.) The review also stated that his team was unable to close on a deal with "AXA" and that "virtually all of his business" came from one client. (Id.) Around the same time, a representative from AXA requested that plaintiff be removed as CA's representative on their account. (Plaintiff's Counter-Statement of Defendants' 56.1 Statement ("56.1 Stmnt.") ¶ 46.)

In April 2005, Clare Cunniffe took over for Perlman and became plaintiff's supervisor. (Deposition of Clare Cunniffe ("Cunniffe Dep.") 16-19.) Cunniffe's mid-fiscal-year review of plaintiff's performance in December 2005 was also less than satisfactory. (56.1 Stmnt. ¶ 53; Stoler Aff. Ex. V.) In January 2006, Cunniffe prepared an "Action Plan for Performance" for plaintiff, setting forth goals for plaintiff to meet "in order to demonstrate an acceptable level of performance." (56.1 Stmnt. ¶ 55; Stoler Aff. Ex. U.)

In March 2006, plaintiff was given his fiscal-year 2006 performance review with an overall rating of "Partially Achieved Expected Results" (Stoler Aff. Ex. W) -- the same rating he earned on his final review for fiscal year 2005, (56.1 Stmnt. ¶ 57; Stoler Aff. Ex. S). The Review identified a number of shortcomings by plaintiff in the same areas that Cuniffe had identified in her "Action Plan" as needing improvement.

On March 1, 2006, plaintiff attended a sales meeting at the company's office in Manhattan. Perlman was among those in attendance. As the group began discussing a client with an Indian accent, Perlman stated "I hate people with strong accents." (56.1 Stmnt. ¶ 61.) Plaintiff, who has a French accent, contends that Perlman was looking at him as he said this.

(56.1 Stmnt. ¶ 61; Am. Compl. ¶ 95.) On several other occasions, and on unspecified dates, Jennifer Foulides, a co-worker of plaintiff's, witnessed employees, including Perlman, making fun of plaintiff's accent when he was not around. She also testified, again absent any temporal reference points, to witnessing Perlman and others say to plaintiff "speak up, I cannot understand you" when he was speaking English. (Deposition of Jennifer Foulides ("Foulides Dep. 112-15.)

In April 2006, plaintiff was demoted from Account Director to Sales Executive at a salary in line with other sales executives. (56.1 Stmnt. ¶¶ 63-64.)

On May 7, 2006, plaintiff sent an email to Andrew Goodman, the company's Executive Vice President for Global Human Resources, alleging that he had experienced "negative and disparate employment treatment," notifying him of Perlman's comment at the March 1, 2006 meeting, and raising the question "what are the real reasons underlying my deteriorating situation at CA." (Email dated 5/7/2006, attached to Stoler Aff. as Exhibit X.) An investigation followed, which ultimately determined plaintiff's concerns to be without merit. (56.1 Stmnt. ¶¶ 69, 74.)

Beginning in February 2006, the company's sales group instituted a "reduction in force."

(56.1 Stmnt. ¶ 75.) Perlman, as Regional Manager, was responsible for recommending employees within his region for layoffs. (56.1 Stmnt. ¶ 79.) Plaintiff was among "several" sales executives recommended by Perlman for termination under the company's retrenchment plan, (56.1 Stmnt. ¶ 81-82), and was informed that defendants were letting him go on September 7, 2006. (56.1 Stmnt. ¶ 83.) The company offered plaintiff a severance package in exchange for a general release, but plaintiff refused to sign the release and therefore did not receive any severance payments. (56.1 Stmnt. ¶ 84-87.)



Summary judgment should be granted where the pleadings and admissible evidence offered to the Court demonstrate that "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56; Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 309 (2d Cir. 2008). An issue of fact is genuine if the "evidence is such that a reasonable jury could return a judgment for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Roe v. City of Waterbury, 542 F.3d 31, 35 (2d Cir. 2008). Further, the relevant governing law determines which facts are material; "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 U.S. at 248. Accordingly, where the undisputed facts demonstrate the union of all the required elements of a cause of action and no reasonable juror could find otherwise, the plaintiff is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986) ("Rule 56(c) mandates the entry of summary judgment . . . against a party who fails to make a showing sufficient to establish the existent of an element essential to that party's case.").

A party may defeat a motion for summary judgment only "by coming forward with evidence that would be sufficient, if all reasonable inferences were drawn in [its] favor, to establish the existence of [an] element at trial." Roe,542 F.3d at 36 (quoting Grain Traders, Inc. v. Citibank, N.A., 160 F.3d 97, 100 (2d Cir. 1998)). The non-movant must advance "more than a scintilla of evidence," Anderson, 477 U.S. at 252, and demonstrate more than "some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Affidavits submitted in opposition to summary judgment must be based on personal knowledge, must "set forth such facts as would be admissible in evidence," and must show that the affiant is "competent to testify to the matters stated therein." Patterson v. County of Oneida, 375 F.3d 206, 219 (2d Cir. 2004) (citing FED.R.CIV.P. 56(e)).*fn2 Conclusory statements in affidavits or allegations in the pleadings are therefore insufficient to defeat a motion for summary judgment. Gottlieb v. County of Orange, 84 F.3d 511, 518 (2d Cir. 1996).


Plaintiff's first claim for relief alleges that defendants discriminated against him due to his "marital status to Sophie Pibouin," who was a fellow employee at CA. (Am. Comp. ¶ 60; Pibouin Dep. 12-14.) NYHRL prohibits discrimination in the workplace based on, inter alia, an individual's "marital status." N.Y. Exec. Law § 296(a)(1). However, there is no protection afforded under NYHRL regarding one's marriage to a particular person. The relevant provision relates to the employee's "marital status" not his or her "marital relationships." Manhattan Pizza Hut, Inc. v. New York State Human Rights Appeal Board, 51 N.Y.2d 506, 512, 415 N.E.2d 950 (1980). Therefore, under this provision, an employer is only prohibited from imposing an adverse employment action on an individual employee "because he or she is single, married, divorced, separated or the like," but not because of the identity of the employee's spouse. Id.; see also Levin v. Yeshiva Univ., 96 N.Y.2d 484, 490, 754 N.E.2d 1099 (2001); Hudson View Properties v. Weiss, 59 N.Y.2d 733, 735, 450 N.E.2d 234 (1983).

Plaintiff's opposition brief nevertheless argues anew that he was discriminated against not so much because he was married to Sophie Pibouin, but because he was married to a fellow employee of CA. (P's Memo at 4.) To further this argument, he compares himself to three other "similarly situated salesmen" who are also married to fellow CA employees, and who "prospered and never experienced discrimination on the basis of their marital status." (Id.) The logic applied here is elusive. It is not at all clear to the Court how a showing that similarly situated individuals within the same class enjoyed better treatment than plaintiff in any way advances his claim of disparate treatment based on being married to a co-employee at CA. If anything, this comparison ...

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