United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
VALERIE CAPRONI DISTRICT JUDGE
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.
Gupta's Employment Under Ehab Al Shihabi
Gupta Joins Al Jazeera America
Jazeera Media Network (“AJMN”) is one of the
largest news organizations in the world. Pl.'s 56.1 Stmt.
¶ 137. 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,
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.” 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.
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. 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.
Al Shihabi Attempts to Restructure Al Jazeera
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. See,
e.g., Defs.' 56.1 Stmt. ¶¶ 13-14;
Pl.'s 56.1 Stmt. ¶¶ 13-14; see also
Gupta Dep. 213:8-214:19.
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.
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. 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. 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,
Gupta's Employment Under Al Anstey
Anstey Replaces Al Shihabi as CEO
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.
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,
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.
Gupta Makes Numerous Requests for a Salary Increase
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. See
Pl.'s 56.1 Stmt. ¶¶ 225, 239, 243-244, 252;
Gupta Dep. 303:7-304:10.
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. Anstey Dep
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. 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.
Al Jazeera America Begins to Wind Down Operations
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.
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.
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.
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.
Gupta Complains of Discrimination and Takes Medical
Gupta's Discrimination Complaint
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 . . . .”
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.
The Advisory Role Proposal
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.
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. ¶
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. ¶
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.
AJAM Hires Toby Winer
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.
Gupta Signs AJAM's Stay Agreement and Files the Instant
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.
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.
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.
Standard of Review
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)).
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