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Earl Brown v. Xerox Corporation

March 1, 2013


The opinion of the court was delivered by: Charles J. Siragusa United States District Judge


Littler Mendelson, P.C. 400 Linden Oaks Suite 110 Rochester, NY 14625 (585) 203-3400 INTRODUCTION Siragusa, J. This case is before the Court on Xerox Corporation's ("Xerox") motion for an order pursuant to Federal Rule of Civil Procedure 12(b)(6). Xerox seeks dismissal of portions of Plaintiff's FIRST and THIRD causes of action, alleging racial discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, for failure to exhaust administrative remedies; and dismissing his SECOND cause of action, alleging a hostile work environment, for failure to exhaust as well as for failure to state a plausible claim for relief. Defendant's Notice of Partial Motion to Dismiss the Complaint, Jul. 1, 2010, ECF No. 4. For the reasons stated below, the application is granted.


For the purpose of deciding the motion, the Court assumes the factual allegations in the complaint are true. Those allegations are as follows.

Xerox hired Plaintiff as Manager of Industrial Relations in 1982, and in 2005, promoted him to vice president of Xerox's Strategic Services Group (XSSG) Human Resources.*fn1 Compl. ¶¶ 12--13. In his position as Manager, Plaintiff took what he characterized as unpopular positions to protect Hispanic and "Black" employees at Xerox. Id. ¶ 13. When he did so, Plaintiff states that he was criticized for not being a team player, for being confrontational or for not being willing to help. He does not identify who criticized him. Id. ¶ 14.

As an example of his allegations, Plaintiff relates that on July 16, 2008, a white employee confronted her black female manager in the manager's office, speaking at her in a loud and angry voice. The black female manager told the white female employee to "get the F**K out" of her face. Id. ¶ 17. The Human Resources manager (who is not identified in the complaint) recommended that the white female employee be demoted, but made no recommendation concerning the black manager. Subsequently, Plaintiff relates that Mr. Ken Syme ("Syme") who is not otherwise identified, contacted someone who Plaintiff identifies only as "Mr. Apello"*fn2 ("Apello") and both of them met with Plaintiff on September 3, 2008. At the meeting, Syme requested that Apello overrule the Human Resource decision, and that he give both the white female and black female warnings about their behavior and language, respectively. In a somewhat confusing manner, Plaintiff's complaint relates that Apello wanted to give the black female manager a warning for using profanity, and that Plaintiff informed both men, "that he would not agree because this was very aggressive behavior by [the white female employee], and indeed was the second incident of this type which occurred in that area in the previous 90 days." Id. ¶ 19. Plaintiff also relates how he intervened in the case of a black male who had recently been given a performance improvement notice by his manager, and that the black male employee had copied in Plaintiff on an email the employee had sent to his manager. Id. ¶ 20. At the same September meeting when Apello asked why Plaintiff had become involved in that situation, Plaintiff informed him that the black male employee had copied him on the email, whereupon Apello became angry and left Plaintiff's office. Id. ¶ 21.

Plaintiff also relates that he intervened in the situation of Loris McFadden, whose race he does not identify. He states, [t]he organization for which Ms. McFadden worked in [sic] had several job openings, but the Defendant refused to give her any of the jobs despite her managers claim that she had good performance. When the Plaintiff intervened on Ms. McFadden's behalf the Defendant created a position in her same organization. By contrast, the Caucasian employee that was also in that organization [Doreen Alfieri] kept her job responsibilities and was moved out of the group reporting to the black female manager. After September 4, both black females were laid off[.] Compl. ¶ 22. Plaintiff next alleges, in a conclusory fashion, that, "[b]ecause of his race (Black)the normal HR processes were not followed" when he was demoted. Id. ¶ 22. He alleges that a September 4, 2008, memorandum his was given by Xerox contained "a number allegations," which he alleges, "lacked specificity and definition." Id. ¶ 24. In a similarly conclusory fashion, Plaintiff also alleges that because he "often reminded managers of their leadership responsibilities" and of their "obligation to be fair and balanced and to maintain an ethical environment with regard to the treatment of all of their employees," he, in turn, "was treated unfairly." Id. ¶ 26.

Plaintiff next describes what he calls the Lominger plan for job selection, promotion and compensation decisions. Plaintiff states that, although he was on the team that developed the plan, he "did not support the concept presented for other than development purposes*fn3 and was concerned that it might be believed that he did support it." Compl. ¶ 29. In the implementation phase, Plaintiff was prepared to make presentations on the Lominger plan and his contention that it should not be used for economic decisions concerning an employee, but he was demoted prior to the scheduled presentation periods and, therefore, did not make his presentations. Id.

¶ 34.The last two paragraphs of the factual portion of Plaintiff's complaint are as follows:

35. The subsequent roll-out package contained information on how to administer stock, bonus and wage increases based on an employee's Lominger assessment. All of the African-American HR managers were removed from their jobs as well and not used in the rollout sessions, even though they were trained in the process and knew the employees and the managers.

36. On March 25, 2010 the Plaintiff was informed that his current position has been eliminated. He was given a list of open positions, all of a lower grade level. He has offered proposals for projects he could perform, but has received no response.

Compl. ¶¶ 35--36.

In his FIRST cause of action, Plaintiff alleges racial discrimination in violation of Title VII,*fn4 citing his "unwarranted demotion, the circulation of unfounded allegations, and criticism that he was too sensitive on the basis of race," as well as the handling of his demotion in September 2008, which he alleges "was not in compliance with Xerox's ordinary polices [sic] and was the culmination of an ongoing pattern of discriminatory practices against the Plaintiff." Id. ¶ 38. He further alleges that he "was treated less favorably than Caucasian employees.." Id. ¶ 40.

In his SECOND cause of action, Plaintiff alleges a hostile work environment in violation of Title VII. As examples of the hostility he faced, Plaintiff alleges as follows:

Comments to the Plaintiff by his supervisors including accusing him, among others, of being too "too sensitive, telling him that there was "no problem" or that the people he ...

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