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Gupta v. Al Jazeera America, LLC

United States District Court, S.D. New York

March 29, 2018

ANAND GUPTA, Plaintiff,



         Plaintiff Anand Gupta brings this action against Defendants Al Jazeera America, LLC and Al Anstey for employment discrimination and retaliation, pursuant to 42 U.S.C. § 1981; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. L. § 290 et seq.; and the New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et seq. See Compl., Dkts. 1, 23. Defendants have moved for summary judgment on all claims. See Notice of Mot., Dkt. 52. For the following reasons, Defendants' motion is DENIED. The parties are ordered to appear for a conference on April 13, 2018 at 10:00 a.m., Courtroom 443, Thurgood Marshall U.S. Courthouse, to set a trial schedule.


         I. Gupta's Employment Under Ehab Al Shihabi

         A. Gupta Joins Al Jazeera America

         Al Jazeera Media Network (“AJMN”) is one of the largest news organizations in the world. Pl.'s 56.1 Stmt. ¶ 137.[1] Headquartered in Doha, Qatar, it owns numerous cable and online news channels, such as Al Jazeera English, Al Jazeera Balkans, and others. Id. In August 2013, AJMN launched a new, ill-fated channel for American audiences, Defendant Al Jazeera America (“AJAM” or the “Company”). Defs.' 56.1 Stmt. ¶ 4; Pl.'s 56.1 Stmt. ¶¶ 138-139. When AJAM first launched, the Company's CEO was Ehab Al Shihabi, and its acting Chief Financial Officer was Muftah Al Suwaidan. Pl.'s 56.1 Stmt. ¶¶ 144, 156.

         Soon after its launch, AJAM hired Gupta as Senior Vice President of Finance, a position under Al Suwaidan. Pl.'s 56.1 Stmt. ¶¶ 148, 156. Gupta, a U.S. citizen of Indian origin, signed a two-year contract with AJAM and began work on September 15, 2013, at an annual salary of $350, 000. Defs.' 56.1 Stmt. ¶ 7; Pl.'s 56.1 Stmt. ¶¶ 127, 147, 149; Kaplan Decl. Ex. 4. At the time of Gupta's hire, David Harleston, AJAM's General Counsel, told Gupta that AJAM would “make up the gap” between Gupta's compensation at AJAM and his compensation at his prior position “if [Gupta] was an effective employee.”[2] Gupta Decl. ¶ 54; see also Pl.'s 56.1 Stmt. ¶ 154; Gupta Dep. 28:12-29:16. The contract was clear that it “supersede[d] any and all prior and contemporaneous agreements, negotiations and communications.” Kaplan Decl. Ex. 4 at 000277. This contract obligated AJAM to review Gupta's performance annually and to “consider . . . in [the Company's] sole discretion” whether to increase Gupta's salary “[b]ased upon that review.” Id. at 000269. The contract made plain that AJAM had “no obligation to increase” Gupta's salary. Id.

         In January 2014, Al Suwaidan left the Company. Pl.'s 56.1 Stmt. ¶ 157. The parties dispute the extent to which Gupta inherited Al Suwaidan's responsibilities, but there is no dispute that, at that time, Gupta became the most senior financial officer at the Company.[3] See Pl.'s 56.1 Stmt. ¶¶ 158-162; Defs.' 56.1 Resp. ¶¶ 158-162. Although Gupta was not given a title change or salary increase at this time, the Company's then-CEO, Al Shihabi, told Gupta that he would receive a salary increase if he performed well with these new responsibilities over the next year. See Pl.'s 56.1 Stmt. ¶¶ 162, 175; Gupta Decl. ¶ 55; Gupta Dep. 193:16-194:12.

         B. Al Shihabi Attempts to Restructure Al Jazeera America

         In March 2015, Al Shihabi announced an overhaul of AJAM's operations. See Pl.'s 56.1 Stmt. ¶ 182. Al Shihabi planned to cut costs through a restructuring that would include merging several departments, terminating a number of executives, and consolidating responsibility among the remaining staff. See Pl.'s 56.1 Stmt. ¶¶ 182-183; Al Shihabi Dep. 38:19, 39:7, 75:5-82:1; Iadevaia Decl. Ex. W at 2107-10. Consistent with their new responsibilities, several executives received new titles at this time. See, e.g., Pl.'s 56.1 Stmt. ¶¶ 190-193; Kaplan Decl. Exs. 6, 7; Iadevaia Decl. Ex. BBBB. Some, but not all, of the executives who received title changes also received salary increases.[4] See, e.g., Defs.' 56.1 Stmt. ¶¶ 13-14; Pl.'s 56.1 Stmt. ¶¶ 13-14; see also Gupta Dep. 213:8-214:19.

         As part of the restructuring initiative, Al Shihabi planned to “exit” the head of the Human Resources (“HR”) Department from the Company and have the HR Department report to Gupta. Pl.'s 56.1 Stmt. ¶¶ 184, 190; Al Shihabi Dep. 39:13-18, 52:11-24, 75:5-78:16; Iadevaia Decl. Ex. W at 2110. Al Shihabi's plan was that Gupta would manage the Finance and HR Departments simultaneously, saving the Company the salary of the former head of HR. See Pl.'s 56.1 Stmt. ¶¶ 182-184.

         In line with Gupta's new role, Al Shihabi changed Gupta's title, from Senior Vice President (“SVP”) of Finance to Executive Vice President (“EVP”) of Finance, but did not increase Gupta's salary.[5] See Pl.'s 56.1 Stmt. ¶¶ 10, 177-180; Defs.' 56.1 Stmt. ¶¶ 10, 12. Al Shihabi told Gupta that there was some political “sensitivity” about increasing Gupta's salary while the restructuring plan was still in flux and that, consequently, Gupta's salary increase would have to wait. Al Shihabi Dep. 42:18-43:2, 46:12-16. Al Shihabi said that once the restructuring was fully implemented, Al Shihabi would increase Gupta's salary from $350, 000 a year to $500, 000 a year, plus an additional $50, 000 bonus.[6] See Pl.'s 56.1 Stmt. ¶¶ 178-180, 186; Gupta Dep. 80:4-82:9, 84:2-85:2, 90:17-92:7, 168:1-171:16; Al Shihabi Dep. 42:18-46:16, 89:7-13.

         II. Gupta's Employment Under Al Anstey

         A. Anstey Replaces Al Shihabi as CEO

         On May 5, 2015, the HR head resigned, and H.J. Chang, originally a Vice President of Human Resources, became Senior Vice President of Human Resources, with a salary increase. Pl.'s 56.1 Stmt. ¶¶ 190, 278-279; Iadevaia Exs. S, CCCC. Just one day later-before the HR Department overhaul could be fully implemented-Al Shihabi unexpectedly resigned from AJAM. Defs.' 56.1 Stmt. ¶ 19; Pl.'s 56.1 Stmt. ¶ 205. Anstey replaced Al Shihabi as CEO of AJAM on May 6, 2015. Defs.' 56.1 Stmt. ¶ 19; Pl.'s 56.1 Stmt. ¶ 205.

         Upon his arrival, Anstey held a brief introductory meeting with Gupta, as he did with several other high-level executives. Pl.'s 56.1 Stmt. ¶¶ 301, 306; Gupta Dep. 115:16-25; Anstey Dep. 93:10-94:2, 96:1-9. Anstey and Gupta discussed Gupta's responsibilities, and Anstey expressed “surprise[]” that the HR Department reported to Gupta, inasmuch as Gupta was a financial officer. Pl.'s 56.1 Stmt. ¶ 302; Gupta Dep. 172:4-14. Gupta then mentioned that he had “a compensation issue” that he wanted to discuss with Anstey after Anstey had settled into his new position. Pl.'s 56.1 Stmt. ¶¶ 230, 304.

         Anstey subsequently decided, purportedly with the “unanimous” agreement of Gupta and two other executives, that the HR Department would report directly to Anstey, not to Gupta. Anstey Dep. 85:21-93:5. Within a few weeks-fewer than 30 days after Gupta took on supervision of the HR Department-Anstey removed the HR Department from Gupta's responsibilities. Pl.'s 56.1 Stmt. ¶ 303; Gupta Dep. 171:20-172:19.

         B. Gupta Makes Numerous Requests for a Salary Increase

         Between May and November 2015, Gupta repeatedly asked Anstey for a salary increase, arguing that Al Shihabi had promised him the raise. See Pl.'s 56.1 ¶¶ 224, 231, 234, 238, 240, 243, 249, 252; Kaplan Decl. Ex. 13. On several occasions, Anstey told Gupta that he wanted to consult with a high-level executive at AJMN, Abdulla Al Najjar, before deciding whether to give Gupta a raise.[7] See Pl.'s 56.1 Stmt. ¶¶ 225, 239, 243-244, 252; Gupta Dep. 303:7-304:10.

         Meanwhile, in mid-June 2015, Anstey expressed concern about Gupta's performance. Defs.' 56.1 Stmt. ¶ 21 (citing Kaplan Decl. Ex. 12); Iadevaia Decl. Ex. OOOOOO. In one June 2015 email, Anstey expressed frustration with the fact that Gupta had failed to inform him of a long-term plan to move San Francisco employees to New York. See Iadevaia Decl. Ex. OOOOOO. Around the same time, Anstey had concerns about Gupta's time management and leadership, as several members of Gupta's team had complained of being “unsupported.” Anstey Dep. 139:7-140:19; see also Id. 124:10-127:21, 134:18-137:22. Anstey shared his concerns with Ibrahim Abdulla Al Obaidli, an AJMN executive, who concurred. Kaplan Decl. Ex. 12. Anstey discussed his concerns with Gupta during a July 2015 meeting.[8] Anstey Dep 136:13- 138:19.

         At this time, Gupta's employment contract was set to expire in September. See Defs.' 56.1 Stmt. ¶ 24; Pl.'s 56.1 Stmt. ¶ 24. Anstey discussed with Al Obaidli the possibility of placing Gupta in a “probation period” or, alternatively, terminating his employment altogether. Kaplan Decl. Ex. 12; see also Anstey Dep. 146:14-147:3. Ultimately, Anstey decided to extend Gupta's contract for one or more additional months, to allow himself more time to assess Gupta's performance.[9] Defs.' 56.1 Stmt. ¶ 24; Pl.'s 56.1 Stmt. ¶¶ 236, 272; Anstey Dep. 170:25-171:12. Eventually, Gupta's employment converted to at-will status when the contract expired sometime in late 2015. See Iadevaia Decl. Ex. X at AJAM003551; id. Ex. Y; Gupta Dep. 191:13-19.

         C. Al Jazeera America Begins to Wind Down Operations

         In December 2015, due to concerns about the Company's financial performance, AJAM began a “strategic review” to assess its future. Defs.' 56.1 Stmt. ¶¶ 37-38. On December 11, 2015, Al Najjar announced the “review” in a private meeting with Anstey, Gupta, and a few other key executives. Pl.'s 56.1 Stmt. ¶¶ 367, 372. Al Najjar said that the review, termed “Project Digital, ” would investigate a range of options to make AJAM's business model more sustainable or, alternatively, formulate a plan to cease broadcasting and wind down the Company's operations. See Def.'s 56.1 Stmt. ¶¶ 37-40; Pl.'s 56.1 Stmt. ¶ 367. Al Najjar assigned Gupta to the “core management team” of Project Digital, tasking him with providing financial data to the project's outside consultants and attorneys. Pl.'s 56.1 Stmt. ¶ 454; see also Iadevaia Decl. Exs. EE, NNNNN.

         The same day that Al Najjar announced Project Digital and floated the possibility of a company shut-down, Anstey asked Gupta to email him a “business justification” for Gupta's requested salary increase. Pl.'s 56.1 Stmt. ¶¶ 394-397; Defs.' 56.1 Resp. ¶ 395. Gupta responded with data on comparable salaries and a list of reasons why he deserved a raise. Kaplan Decl. Exs. 14, 15. Anstey forwarded a version of that list to Al Najjar on December 23, 2015, stating, “As you know I believe [Gupta] deserved a pay rise [sic]. I was going to recommend this in December anyway, and then heard about [P]roject [D]igital, so held this conversation with you. [Gupta] is very experienced, professional, and dedicated.” Id. Ex. 17. A few days later, Anstey explained to Gupta that Anstey was “supportive” of the pay-raise but that, given the ongoing discussions over a company shut-down, Anstey was “not in a position” to approve a salary increase “without conferring with [Al Najjar].” Id. Ex. 19. Gupta followed up on his requested salary increase several times over the next few weeks. See Defs.' 56.1 Stmt. ¶¶ 47, 49, 54; Kaplan Decl. Exs. 20-24.

         The plans to shut-down AJAM crystallized over the next few weeks. The Company formulated a “Retention Incentive Plan” and a “Special Severance Plan, ” pursuant to which most employees would be terminated by April 30, 2016. Pl.'s 56.1 Stmt. ¶¶ 385-386; Iadevaia Decl. Exs. LLL, MMM. The Company also formed a “Stay Team, ” a small group of executives who would remain employed past April 2016 in order to wind down the Company's operations. Pl.'s 56.1 Stmt. ¶ 380. Gupta, Anstey, Chang, and a few others were placed on the Stay Team. Iadevaia Decl. HHHHH.

         Sometime in early January 2016, Al Najjar denied Gupta's request for a salary increase, although Al Najjar and Anstey did not tell Gupta right away. See Defs.' 56.1 Stmt. ¶ 57; Al Najjar Dep. 23:25-26:10. On January 13, 2016, AJAM publicly announced that it would close, with all broadcasting to cease on April 12, 2016. Defs.' 56.1 Stmt. ¶ 56; Pl.'s 56.1 Stmt. ¶¶ 381- 382. Two days later, Anstey told Gupta that Al Najjar had denied Gupta's salary increase. Pl.'s 56.1 Stmt. ¶ 420; Gupta Dep. 346:11-14; Anstey Dep. 226:11-229:21.

         III. Gupta Complains of Discrimination and Takes Medical Leave

         A. Gupta's Discrimination Complaint

         About two weeks after he was told that his compensation would not be increased, Gupta sent an email to Anstey, Chang, and others with the subject line, “Anand Gupta - Official Compliant [sic] against Unfair Employment Practice by AJAM.” Kaplan Decl. Ex. 28. Gupta stated that, after numerous requests, he had “no choice but to file an official complaint against AJAM for its unfair employment practices” because of the Company's “very unfair and discriminatory treatment” in denying his requests for a salary increase. Id. In particular, Gupta complained that Anstey had “singled out” Gupta relative to needing Al Najjar's permission to grant a request for a salary increase. Id. Gupta argued that requiring approval from the Qatar-based AJMN “called into question” the U.S.-based AJAM's compliance with “fair employment laws and practices.” Id. Gupta closed by stating, “I trust that this complaint will not result in any retaliation on my continued employment . . . .” Id.

         In the same email, Gupta stated that he would take medical leave for ten days due to the “stress and anxiety” from the “unfairness” of not receiving a raise. Id. In response, Anstey told Gupta to “take the time you need to attend to your health.” Kaplan Decl. Ex. 29.

         B. The Advisory Role Proposal

         Gupta began medical leave on January 28, intending to return to work on February 8 (but leaving open the possibility of extending his leave for additional time). Defs.' 56.1 Stmt. ¶ 68; Pl.'s 56.1 Stmt. ¶¶ 448-449; Kaplan Decl. Ex. 30. Gupta later extended his medical leave to February 22. Defs.' 56.1 Stmt. ¶ 78; Pl.'s 56.1 Stmt. ¶ 476; Kaplan Decl. Exs. 34, 36.

         Anstey, Chang, and Gupta all met on February 23, the day after Gupta was due to return to work. Defs.' 56.1 Stmt. ¶ 86; Pl.'s 56.1 Stmt. ¶ 485. What happened at the February 23 meeting is a matter of sharp factual dispute. The parties agree that at this meeting, Anstey offered Gupta an “advisory role” that would have reduced Gupta's responsibilities significantly. See Gupta Dep. 370:25-371:3; Anstey Dep. 276:23-279:10. They dispute the extent to which Gupta asked for this diminished role. According to Gupta, he told Anstey that he was “ready” to come back to work, but Anstey refused. Gupta Dep. 370:8-372:10, 382:19-386:10. Gupta viewed the reduced responsibilities as effectively “ban[ning]” him from the office and “suspend[ing] him with pay.” Id. 370:8-373:7. According to Anstey and Chang, however, Gupta listed a number of his responsibilities and said, “Get me out of those.” Anstey Dep. 276:23-279:10; see also Chang Dep. 232:3-236:6. Anstey testified that he and Gupta reached an “agreement in principle” in this meeting about reducing Gupta's workload. Defs.' 56.1 Stmt. ¶ 89; Anstey Dep. 278:5-8. Gupta denies that any such agreement was reached. Pl.'s 56.1 Stmt. ¶ 89.

         A few days later, Anstey emailed Gupta a “Separation and Release Agreement.” Defs.' 56.1 Stmt. ¶ 90; Pl.'s 56.1 Stmt. ¶ 504; Iadevaia Decl. Ex. RRRRR. The agreement would have extended Gupta's employment through June 12, 2016, in an advisory role. Iadevaia Decl. Ex. RRRRR at 3100. In that role, Gupta would have been “reasonably available to answer questions” but “relieved of [other] duties.” Id. AJAM would have had “no obligation to provide any work” to Gupta during that time. Id. Under the agreement, Gupta would have continued to receive his salary and would have remained eligible for severance and a retention bonus. Id. at 3100-01; Pl.'s 56.1 Stmt. ¶ 505. The agreement also contained a general release of AJAM for all claims, including employment discrimination claims. Iadevaia Decl. Ex. RRRRR at 3101; Pl.'s 56.1 Stmt. ¶ 506. On March 7, 2016, Gupta informed AJAM that he would not sign the agreement. Defs.' 56.1 Stmt. ¶ 92; Pl.'s 56.1 Stmt. ¶ 518.

         Gupta remained out of the office for the next few weeks. He worked from home on at least one long-term project, but it is unclear whether the Company assigned him additional work during this time. See Pl.'s 56.1 Stmt. ¶ 581; Defs.' 56.1 Resp. ¶ 581. It is also unclear whether Anstey allowed Gupta to return to the office during this time (as Defendants argue) or whether Anstey ordered Gupta not to return to the office (as Gupta argues). Compare Pl.'s 56.1 Stmt. ¶¶ 516, 522 with Defs.' 56.1 Resp. ¶ 522 (citing Kaplan Decl. Ex. 43). Nevertheless, Gupta remained employed and on AJAM's payroll during this time. See Defs.' 56.1 Stmt. ¶ 85; Pl.'s 56.1 Stmt. ¶ 85.

         C. AJAM Hires Toby Winer

         Meanwhile, throughout February 2016, AJAM interviewed for and hired an outside consultant to take on many of Gupta's day-to-day responsibilities. The Company began looking for a consultant at a “CFO level” on February 4, just a week after Gupta went out on medical leave. See Iadevaia Decl. Ex. SS at KIWI000107-110. They interviewed Toby Winer for that position on or around February 16, shortly before Gupta was due to return (and before the February 23 meeting). See Chang Dep. 280:23-281:24; Iadevaia Decl. Ex. SS at KIWI000100. Winer began work at AJAM as a consultant on March 3 (after Anstey proposed the advisory role to Gupta but before Gupta officially declined it). Pl.'s 56.1 Stmt. ¶ 556; Iadevaia Decl. Ex. WWWWW. The parties do not dispute that Winer, a white female, performed the bulk of what had been Gupta's day-to-day responsibilities throughout March and April. See Pl.'s 56.1 Stmt. ¶¶ 566-569, 573-574, 607; Defs.' 56.1 Resp. ¶¶ 566-568, 573-574, 607.

         D. Gupta Signs AJAM's Stay Agreement and Files the Instant Lawsuit

         In late March, Anstey emailed Gupta a new agreement extending his employment through June 15, 2016 (the “Stay Agreement”). Defs.' 56.1 Stmt. ¶ 97; Pl.'s 56.1 Stmt. ¶ 614; Kaplan Decl. Ex. 44. Because Gupta had rejected the Separation and Release Agreement (which would have extended his employment through June in an advisory role), like most other AJAM employees, he was subject to termination when the Company ceased broadcasting on April 12. See Kaplan Decl. Ex. 44 at 2152. Under the Stay Agreement, Gupta would continue to be paid through June 15, and AJAM would “assign [Gupta] any duties or responsibilities . . . within [his] capabilities.” Id. The agreement also would allow AJAM to ask Gupta to “work remotely” in the Company's “sole discretion.” Id. The agreement would provide Gupta with severance pay and a retention bonus but expressly conditioned them on Gupta's executing a general release of claims. Id. at 2152-53.

         Gupta signed the Stay Agreement but refused to sign the general release. See Defs.' 56.1 Stmt. ¶ 98; Pl.'s 56.1 Stmt. ¶¶ 628, 637-638; Kaplan Decl. Ex. 45; Iadevaia Decl. KKKKKK. Six days after executing the Stay Agreement, Gupta filed the Complaint in the instant action. Defs.' 56.1 Stmt. ¶ 101; Pl.'s 56.1 Stmt. ¶ 631; Compl., Dkt. 1.

         The wind-down of AJAM continued through 2016. Anstey departed in May 2016, a month before Gupta did. Pl.'s 56.1 Stmt. ¶ 639. Chang and several finance employees stayed on through December 2016, at which point they were converted to independent contractors. Pl.'s 56.1 Stmt. ¶¶ 652-653. As of mid-2017, Winer was still providing services to AJAM as a consultant. Id. ¶¶ 656-657.


         I. Standard of Review

         Summary judgment is appropriate when “the movant shows 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(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “Where the record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Scott v. Harris, 550 U.S. 372, 380 (2007) (internal quotation marks omitted) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)). To defeat summary judgment, the nonmoving party must come forward with “specific facts showing that there is a genuine issue for trial.” Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). Courts “construe the facts in the light most favorable to the nonmoving party . . . and resolve all ambiguities and draw all reasonable inferences against the movant.” Delaney v. Bank of Am. Corp., 766 F.3d 163, 167 (2d Cir. 2014) (per curiam) (omission in original) (internal quotation marks omitted) (quoting Aulicino v. N.Y.C. Dep't of Homeless Servs., 580 F.3d 73, 79-80 (2d Cir. 2009)).

         “At summary judgment in an employment discrimination case, a court should examine the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer.” Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 102 (2d Cir. 2001). “A motion for summary judgment may be defeated where ‘a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to ...

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