Conway v. Microsoft Corp.

• Decision Date: 14 February 2006
• Docket Number: No. 04 Civ. 3346(RJH).,04 Civ. 3346(RJH).
• Citation: 414 F.Supp.2d 450
• Parties: Todd CONWAY, Plaintiff, v. MICROSOFT CORP. and Tom Leach, in his individual and official capacities, Defendants.
• Court: U.S. District Court — Southern District of New York

414 F.Supp.2d 450

Todd CONWAY, Plaintiff, v. MICROSOFT CORP. and Tom Leach, in his individual and official capacities, Defendants.

No. 04 Civ. 3346(RJH).

United States District Court, S.D. New York.

February 14, 2006.

COPYRIGHT MATERIAL OMITTED

Marc W. Garbar, Garbar & Garbar, P.C., New York, NY, for Plaintiff.

Kenneth William Gage, Paul, Hastings, Janofsky & Walker LLP, Stamford, CT, for Defendants.

MEMORANDUM OPINION AND ORDER

HOLWELL, District Judge.

Todd Conway brought this action against his former employer, Microsoft Corporation ("Microsoft") and Tom Leach, an employee of Microsoft, asserting claims of discriminatory discipline on the basis of his race and gender in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the Civil Rights Act of 1866, 42 U.S.C. § 1981 ("Section 1981"), New York Human Rights Law, N.Y. Exec. Law § 296, and Title 8 of the Administrative Code and Charter of the City of New York, N.Y.C. Admin. Code § 8-107 et seq. Conway further asserts claims of retaliation and constructive discharge resulting from his complaint of sexual harassment to Microsoft, in further violation of Title VII, Section 1981, and New York law. Conway's remaining state law claims assert a violation of a duty not to act negligently, recklessly or carelessly, and/or with callous indifference toward him, negligent hiring, supervision and/or retention, breach of contract, and tortious interference with contract. At oral argument on February 8, 2006, plaintiff withdrew his claims alleging gender discrimination, and all state law claims unrelated to race discrimination. Microsoft and Leach have moved for summary judgment on all claims asserted by Conway. For the reasons set forth below, the Court grants defendants' motion for summary judgment, thereby dismissing this action in its entirety.

BACKGROUND

Unless otherwise indicated, the following facts are undisputed and taken in the light most favorable to plaintiff.

1. Plaintiffs Demotion

Conway is an African-American male who was hired to the position of Technical Account Manager ("TAM") by Microsoft in 1998. (Conway Aff. ¶¶ 2, 4, Pl.'s Ex. 1.) On January 13, 2003, Conway was promoted to the position of Premier Support Manager ("PSM"), a position that involves supervisory responsibility over a team of employees. (Conway Aff. ¶ 4; Defs.' Statement of Material Facts Pursuant to Rule 56.1 ("Defs.' 56.1 Statement") II 13.) As a result of this promotion, defendant Leach, who has held the position of Group Manager since 2000, became Conway's manager. (Conway Aff. ¶ 5.) In addition, as part of Conway's supervisory responsibilities, Peggy Quirke, a TAM, became Conway's direct report. (Id. at ¶ 6.)

Between the months of January and March 2003, Conway and Quirke engaged in three sexual encounters. (Id.) The first encounter occurred in Conway's Charlotte, North Carolina hotel room on January 22, 2003. (Defs.' 56.1 Statement 119.) The second encounter occurred on February 27, 2003 in Conway's car, outside a hotel in Scottsdale, Arizona where Conway and Quirke were staying separately in connection with a Microsoft training event. (Id. at ¶¶ 24, 31.) The third and final sexual encounter occurred on March 21, 2003 at Quirke's home in Charlotte, North Carolina. Having a relationship with a subordinate was a violation of Microsoft policy¹ That policy provides:

You should not directly supervise a spouse, domestic partner, other family member or relative. If you nevertheless find yourself in a position of supervising, or being supervised by, a spouse, domestic partner, family member or relative, you should report the situation immediately to your manager and HR generalist. In such circumstances, Microsoft will assist you or the other person in finding a new position within the company but there is no assurance that such a position will be secured.

. . . . . .

While not specifically addressed above, the same considerations apply to situations in which you are romantically involved with another person and he/she seeks employment at Microsoft, works in your group, or is supervised by you.

(Microsoft Employment of Relatives, Pl.'s Ex. 10.) This policy is captioned as "Employment of Relatives," although by its terms is extended to cover personal or sexual relationships.

Conway did not report his relationship or request a reassignment for himself or Quirke at the time the encounters took place. However, Conway did inform Leach and Cullene Bury, a Human Resources generalist, of his relationship with Quirke in August 2003. (Conway Aff. ¶ 7.) Conway's disclosure was precipitated by a confrontation between himself and Quirke during her August 22, 2003 annual review. (Conway Dep. 288:08-25; Pl.'s Ex. 2.) Quirke was upset about her review, and threatened to disclose their relationship to Leach. (Id.) Conway responded that he would "beat [her] to it." (Id.) Later that evening, Conway received a number of emails from Quirke, demanding that he revise her review. (Id.) Conway told Leach about his sexual encounters with Quirke on August 26, 2003. (Conway Aff. ¶ 9.) Following Conway's disclosure to Leach, Leach instructed him to contact Bury in Human Resources. (Defs.' 56.1 Statement ¶ 54.) Subsequently, Leach decided to demote Conway, and informed him of this decision by telephone September 4, 2003. (Conway Dep. 308:12-309:25, Defs.' Ex. 5; E-mail from Todd Conway to Cullene Bury and Tom Leach (Sept. 8, 2003, 12:06 PM), Defs.' Ex. 8 (noting in subject heading that conversation with Leach occurred September 4, 2003).)

Conway objected to his demotion, and complained to Leach several times that other managers, specifically Melissa Bodenstaff and Ray Ivey, had engaged in relationships with subordinates and kept their jobs. (See E-mail from Tom Leach to Cullene Bury (Sept. 12, 2003, 12:32 PM), Pl.'s Ex. 11.) An e-mail exchange between Leach and Bury indicates that in response to Conway's disparate treatment complaint, Leach had informed Conway that Bodenstaff and her subordinate, David Allred, "brought this to [his]/HR attention immediately and professionally." (E-mail from Tom Leach to Cullene Bury (Sept. 12, 2003, 1:26 PM), Pl.'s Ex. 11.) With respect to Ray Ivey, Leach's email to Bury indicates only that Conway had mentioned "[s]omething with Ray Ivey." (E-mail from Tom Leach to Cullene Bury (Sept. 12, 2003, 1:35 PM), Pl.'s Ex. 11.) Conway's allegations of disparate treatment go to the heart of the current action, and will be discussed in greater detail, infra.

On September 15, 2003, Leach issued a warning memo for inclusion in Conway's personnel file, detailing the disclosures made by Conway and Conway's demotion. (Mem. from Tom Leach to Todd Conway (Sept. 15, 2003) ("Warning Memo"), Pl.'s Ex. 7.) Leach notes that "Managers at Microsoft are held to a higher standard in representing the company and its values" and cites to policies and guidelines for managers and the General Company Guidelines. (Id. at 1.) The memo goes on to specifically note that Conway "used poor judgment by choosing to not disclose this information until [he was] concerned that [his] direct report would bring it up as a result of being unhappy with her review." (Id. at 2; see also Leach Dep. 63:09-14, Pl.'s Ex. 4.)

Conway was officially removed from his management position and returned to his prior position of TAM on October 1, 2003. (Defs.' 56.1 Statement ¶ 58.) Conway's salary remained the same, but the parties dispute whether his stock awards, bonus structure, and potential for future earnings were affected by the demotion. (Id. at ¶ 59; cf. Pl.'s 56.1 Statement of Material Facts ("Pl.'s 56.1 Statement") ¶ 59.) In addition, Conway's People-Management rating in his annual performance evaluation was revised downward, and he was required to attend harassment prevention training. (Warning Memo 2; see also Conway Annual Performance Review 2003, Pl.'s Ex. 8.) The responsive action by Microsoft was based on the information they had received from Conway himself. Leach and Bury accepted Conway's version of events and did not undertake a further investigation to confirm the truth or accuracy of what Conway told them. (Warning Memo; Leach Dep. 234:12-234:13.)

2. Plaintiffs Internal Complaint of Sexual Harassment against Quirke

On September 8, 2003, Conway filed an internal complaint of sexual harassment against Quirke via an e-mail addressed to Bury and Leach that alleged he had "enough objective information to show that [he] was being harassed prior to the initial physical encounter on ... January 22, 2003." (E-mail from. Todd Conway to Cullene Bury and Tom Leach (Sept. 8, 2003, 12:06 PM), Defs.' Ex. 8.) Bury responded to the e-mail soon after to inform Conway that she had forwarded his complaint to Microsoft's Employee Relations Investigations team. (E-mail from Cullene Bury to Todd Conway and Torn Leach (Sept. 8, 2003, 1:51 PM), Defs.' Ex. 9.) The following day Tracy Turman, Investigations Manager in Human Resources, e-mailed Conway to request a video conference to discuss his allegation of sexual harassment. (E-mail from Tracy Turman to Todd Conway and Cullene Bury (Sept. 9, 2003, 5:56 PM), Defs.' Ex. 9.) However, Conway refused to cooperate and declined to speak with Turman about his allegations or otherwise participate in any subsequent investigation. (Conway Dep. 316:0211.) Microsoft's internal handling of Conway's claim culminated in a memorandum dated October 28, 2003. Therein Turman informed Conway that "based on the information provided to me in this investigation, there is nothing to corroborate your allegation that you were sexually harassed by Ms. Quirke." (Mem. from Tracy Turman to Todd Conway (Oct. 28, 2003), Defs.' Ex. 10.)

3. Defendants' Alleged Retaliatory Conduct and Constructive Discharge

Following his demotion, Conway was reassigned to work as a TAM on Microsoft's account with Citigroup. On October 7, 2003, Conway e-mailed his supervisor Brian Kass...