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Hexemer v. General Electric Co.

United States District Court, N.D. New York

June 29, 2015



LAWRENCE E. KAHN, District Judge.


Plaintiff Soheila Hexemer ("Plaintiff") commenced this employment discrimination action on December 10, 2012, against Defendants General Electric Company ("GE"), GID Global, LLC ("GID"), and Jose Garcia ("Garcia") (collectively, "Defendants"). Dkt. No. 1 ("Complaint"). Presently before the Court is Defendants' Motion for summary judgment. Dkt. Nos. 65 ("Motion"); 65-30 ("Memorandum"). For the following reasons, the Motion is granted in part and denied in part.


A. Plaintiff's Employment with GID

Jose and Guillermo Garcia are the owners and general managers of Grupo de Integracion Digital SA de CV ("GRUPO"). Dkt. Nos. 65-29 ("Defendants' Statement of Material Facts") ¶¶ 1-2; 71 ("Plaintiff's Counter-Statement of Material Facts") ¶¶ 1-2. GRUPO and GE are parties to a Master Service Agreement, under which GRUPO uses GID as its vendor to provide personnel for various projects at GE. Defs.' SMF ¶¶ 1, 3; Pl.'s SMF ¶¶ 1, 3.

Plaintiff was born in Iran and is of Persian descent. Pl.'s SMF ¶ 72. Plaintiff immigrated to the United States in 1977 and became a United States citizen in 1988. Id . ¶ 73. In January 2011, Plaintiff began working for GID as a project manager and was responsible for managing a database of documents at GE's Schenectady office ("Database Project"). Defs.' SMF ¶¶ 9, 13; Pl.'s SMF ¶¶ 9, 13. The Database Project began in January 2011 and was initially estimated to last for one year. Defs.' SMF ¶ 7. Plaintiff contends that she was never informed that the project was only expected to last a year. Pl.'s SMF ¶ 7. Plaintiff negotiated the terms of her employment directly with GID and executed a formal employment agreement with Jose Garcia on December 14, 2010. Defs.' SMF ¶¶ 10-11; Pl.'s SMF ¶¶ 10, 11. During her employment with GID, Plaintiff was supervised by Jake Tefft ("Tefft"), a GID employee who worked at GE's Schenectady campus. Defs.' SMF ¶¶ 14, 17; Pl.'s SMF ¶¶ 14, 17.

The Database Project was still incomplete at the end of 2011, prompting GE and GRUPO to extend it until June 2012. Defs.' SMF ¶¶ 29-30; Pl.'s SMF ¶¶ 29-30. The Database Project was completed in May 2012. Defs.' SMF ¶ 32. Plaintiff was never informed that her employment was expected to end when the Project was complete. Pl.'s SMF ¶ 32. Jose Garcia contends that Plaintiff should have been aware that her employment was guaranteed only for the duration of the particular project she was hired to complete. Dkt. No. 65-7 ("Garcia Affidavit") ¶ 28.

On May 21, 2012, Jose Garcia wrote an email to his brother, Guillermo, suggesting that GID try to place Plaintiff on another project, and if they were not successful by October, terminate her employment with GID. Defs.' SMF ¶¶ 34-35. Specifically, the email states "What do you think about us leaving her so we can see if I can get another project as far as it is feasible? It is risky but in this way the other project would be easier to start." Garcia Aff., Ex. A. The email went on to state, "[i]f nothing happens by October, then I will send Soheila her letter of termination." Id . GID routinely staffed contractors on other projects after a contractor's initial project was complete. Pl.'s SMF ¶ 7. After completion of the Database Project in May, Plaintiff was then assigned to provide general support for GRUPO's information management team in Mexico at GE's Schenectady facility (the "TOC project"). Defs.' SMF ¶ 36. Plaintiff was unaware that the TOC assignment was temporary. Pl.'s SMF ¶ 36. GID claims that Plaintiff overstated her qualifications for working with computer programs and software, and that she was not suited for working on this project. Defs.' SMF ¶¶ 37-38. Plaintiff believes that she was qualified for and performed well in this role. Pl.'s SMF ¶ 38. Plaintiff received consistently positive feedback on her performance from both GE and GID employees. Id . Garcia contends that he had decided by June 2012 that Plaintiff could not stay on the TOC Project indefinitely, and that he would have to terminate her employment by October unless a new project was found for her. Defs.' SMF ¶ 39. Plaintiff states that Garcia informed her that everyone was happy with her work, and that in June 2012 Garcia offered her a raise in response to positive reviews of Plaintiff's performance. Pl.'s SMF ¶¶ 39, 80, 81. At no time between May and October 2012 was Plaintiff informed or notified of any change in her employment status, or of an intention to terminate her employment in October if another project was not found for her. Id . ¶¶ 32, 79.

B. The October 25 Incident

On Thursday, October 25, 2012, Plaintiff and two other colleagues were talking near the work area of Sarah Hill ("Hill"), a GE employee. Defs.' SMF ¶ 40; Pl.'s SMF ¶ 40. Plaintiff made a comment about how people in general gain weight from sitting at their desks all day. Defs.' SMF ¶ 41; Pl.'s SMF ¶ 41. Hill overheard this comment and joined the conversation. Defs.' SMF ¶ 42. Plaintiff alleges that Hill began to berate her, saying "in this country we don't talk like that, " and that [Plaintiff's] comment might be acceptable in Iran, but not in the United States. Pl.'s SMF ¶ 42. Hill purportedly said that Plaintiff's comment might be acceptable in Iran, but not the United States and described Plaintiff as uncivilized. Id . Plaintiff was "taken aback" by Hill's comments, and questioned why her ancestry was relevant to the situation. Id . Plaintiff stated that she was an American citizen, and that her husband and children were American. Defs.' SMF ¶ 44; Pl.'s SMF ¶ 44. Plaintiff perceived Hill's comments as "blatantly discriminatory" and informed Hill that if Plaintiff's nationality bothered Hill, Plaintiff would resign. Pl.'s SMF ¶ 44. Plaintiff then attempted to report the incident to Kathleen Bokan and Peter Nelli, two GE employees, but they were not at their cubicles at the time. Defs.' SMF ¶¶ 45-46; Pl.'s SMF ¶¶ 45-46. Plaintiff then reported the incident to her GID supervisor, Tefft, who allowed her to go home early. Defs.' SMF ¶¶ 47-48; Pl.'s SMF ¶¶ 47-48.

Jose Garcia held a conference call with Tefft and Tomas Zalewski ("Zalewski") the day after the incident to learn more about what happened. Garcia Aff. ¶ 38. On Plaintiff's next scheduled work day, Monday, October 29, Tefft and Zalewski spoke to her regarding the October 25 incident at Garcia's request. Defs.' SMF ¶¶ 49-50; Garcia Aff. ¶ 39. Plaintiff told Tefft and Zalewski that she believed Hill's conduct was discriminatory. Pl.'s SMF ¶ 50. Tefft told Plaintiff that he had spoken with Garcia and they agreed that Plaintiff would not be required to have unwanted contact with Hill in the future. Id . Although Plaintiff thought this response was insufficient, she informed Tefft that she was willing to continue working in her current position. Id.

Plaintiff also reported the incident to Jared York ("York"), her supervisor at GE. Defs.' SMF ¶¶ 52-53. On October 30, 2012, York recounted his understanding of the incident in an email to GID management, stating that he was unhappy with how Plaintiff reacted to the incident. Defs.' SMF ¶¶ 54-55; Pl.'s SMF ¶ 54. York requested that GID address the incident with Plaintiff, but did not specifically request that they terminate Plaintiff's employment. Defs.' SMF ¶¶ 55-56; Pl.'s SMF ¶¶ 55-56. Specifically, York's email stated that he felt that Plaintiff showed "completely unprofessional behavior" and that "[he] need[s] people who can work and communicate effectively and professionally." Pl.'s SMF ¶ 55. York further stated "I'm looking to you to make sure that [Plaintiff] understands that her behavior was unacceptable and will not be tolerated, " and "I'll look forward to hearing your updates on next steps with [Plaintiff]." Id . GID management then contacted York by telephone and informed him that they had already decided to terminate Plaintiff's employment, prior to the October 25 incident. Defs.' SMF ¶ 58. At Garcia's deposition, however, he testified that when he spoke to York on October 30, he did not tell York that a decision to terminate Plaintiff's employment had previously been made, or even that he intended to terminate Plaintiff's employment. Pl.'s SMF ¶ 58; Dkt. No. 72-2 ("Garcia Depostion") at 82:14-83:5. York testified that when he spoke to Garcia, Garcia told him that GID had decided to terminate Plaintiff's employment, but they did not tell him why or when the decision was made. Pl.'s SMF ¶ 58; Dkt. No. 72-3 ("York Deposition") at 56:24-57:08.

C. Termination of Plaintiff's Employment With GID

On October 30, Plaintiff called in sick. Defs.' SMF ¶ 51; Pl.'s SMF ¶ 51. When Plaintiff returned to work on October 31, 2012, she received an email from Garcia notifying that her employment was terminated, effective immediately. Defs.' SMF ¶¶ 60-61; Pl.'s SMF ¶¶ 34, 60-61. In the termination letter, Garcia explained that the decision to terminate Plaintiff's employment was made in recent days and was due to the difficult economic downturn. Pl.'s SMF ¶ 34. The letter stated that the termination "should not be taken as any reflection on you personally or your performance, which by the way, was outstanding." Id . ¶ 39. After she received notice of her termination, Plaintiff went to York's office, where she informed him that she believed that her termination was retaliation for her complaint against Hill. Defs.' SMF ¶ 64; Pl.'s SMF ¶ 64. York allegedly told Plaintiff that he did not know anything about the decision to terminate her, and that he ultimately did not care whether Plaintiff had been discriminated against or not, because Plaintiff was not a GE employee. Pl.'s SMF ¶ 64. York denies that he discriminated against Plaintiff. Defs.' SMF ¶ 65.

On November 7, 2012, Garcia met with Plaintiff and informed her that GID had terminated her employment for budgetary reasons. Id . ¶ 71. At this meeting, Plaintiff alleges that Garcia informed her that the decision to terminate her employment was made unilaterally by "higher ups" at GE, because GE chose to eliminate her position. Pl.'s SMF ¶¶ 34, 90. Plaintiff alleges that Garcia admitted at this meeting that he was not aware of any prior decision to terminate Plaintiff's employment. Id . ¶ 39. However, in his affidavit, Garcia states that the "decision to terminate Hexemer was made solely by me, on behalf of GID. GE was not involved in any way in this decision." Garcia Aff. ¶ 3. Garcia further contends that "[c]ertainly by October 30, and long before the October 25 incident, it was clear that GRUPO would not be getting a new project by the end of October, and that we would have to terminate Plaintiff's employment at the end of the month. We simply could not afford to keep paying Hexemer when she was unable to perform the duties of her current position." Id . ¶ 41. GID contends that it has an established practice of giving employees notice of their termination the day the termination takes effect. Defs.' SMF ¶ 63. According to Plaintiff, Garcia told her that GE normally provides him with two months notice of decisions by GE to terminate a contract employee, but they did not do so in this instance. Pl.'s SMF ¶¶ 63, 92. Garcia informed Plaintiff that he would have provided her with such notice had GE given him the opportunity to do so. Id . ¶ 63. According to Plaintiff, Garcia told Plaintiff that he was "happy" with her performance, and even suggested that GID would be willing to hire Plaintiff in the future. Id . ¶ 93.

On December 10, 2012, Plaintiff commenced this action, alleging that the termination of her employment constituted discriminatory treatment, harassment, and unlawful retaliation in violation of (1) Section 1981 of the Civil Rights Act of 1866 ("§ 1981"), 42 U.S.C. § 1981; and (2) the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290, et seq. See Compl. On September 11, 2013, the Court granted Defendants' Motion to dismiss Plaintiff's claims for discrimination and hostile work environment in violation of § 1981, as well as her claims for discrimination and hostile work environment in violation of the NYSHRL. See Dkt. No. 16 ("September Order"). The Court denied Defendants' Motion to the extent that they sought dismissal of Plaintiff's claims for retaliation in violation of § 1981 and the NYSHRL. Id . After receiving a right-to-sue letter from the Equal Employment Opportunity Commission, Plaintiff filed an Amended Complaint on March 31, 2014, adding a claim for unlawful retaliation in violation of Title VII. See Dkt. No. 40 ("Amended Complaint").

On December 12, 2014, Defendants filed the instant Motion for summary judgment on all three causes of action. Mot. Plaintiff filed a Response, Dkt. Nos. 73-1 ("Response"), and Defendants filed a Reply, Dkt. No. 77 ("Reply"). Defendants move for summary judgment on the following grounds: (1) Plaintiff has failed to show that GE is Plaintiff's joint or individual employer and thus all claims against GE should be dismissed; (2) GID is not a qualified employer under Title VII; (3) the decision to terminate Plaintiff's employment pre-dated her protected activity; (3) Defendants have offered a ...

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