Dong Chul Kim v. Harte Hanks, Inc.

• Decision Date: 04 December 2019
• Docket Number: 19 Civ. 1920 (KPF)
• Citation: 425 F.Supp.3d 246
• Parties: DONG CHUL KIM, Plaintiff, v. HARTE HANKS, INC., Harte-Hanks Direct, Inc., Harte-Hanks Strategic Marketing, Inc., and NSO, Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

425 F.Supp.3d 246

DONG CHUL KIM, Plaintiff,

v.HARTE HANKS, INC., Harte-Hanks Direct, Inc., Harte-Hanks Strategic Marketing, Inc., and NSO, Inc., Defendants.

19 Civ. 1920 (KPF)

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

Signed December 4, 2019

Gregory Nicholas Filosa, Filosa Law Firm, New York, NY, for Plaintiff.

Anthony Alexander Mingione, Blank Rome LLP, New York, NY, Jason E. Reisman, Rosemary McKenna, Blank Rome LLP, Philadelphia, PA, for Defendants.

OPINION AND ORDER

KATHERINE POLK FAILLA, District Judge:

Plaintiff Dong Chul Kim brings this suit against Defendants Harte Hanks, Inc., Harte-Hanks Direct, Inc., Harte-Hanks Strategic Marketing, Inc., and NSO, Inc., all of whom he alleges operated as a single entity that jointly employed him. Plaintiff, who is a native Korean, alleges that he was treated differently from his white, American-born colleagues; was made to handle the more technical and less desirable workplace tasks because of his ethnicity as an East Asian male; and was terminated for complaining about this disparate treatment. Plaintiff claims discrimination and retaliation under both 42 U.S.C. § 1981 and the New Jersey Law Against Discrimination (the "NJLAD"), N.J.S.A. §§ 10:5-1 to 10:5-49.

Defendants seek the dismissal of Plaintiff's NJLAD claims on the grounds that they are time-barred; that they cannot be brought against certain Defendants who did not employ Plaintiff; and that they cannot be asserted by Plaintiff because he was not employed in New Jersey. Defendants also seek the dismissal of the entirety of Plaintiff's complaint against Defendants Harte Hanks, Inc., Harte-Hanks Strategic Marketing, Inc., and NSO, Inc. on the grounds that the Court cannot exercise personal jurisdiction over them. For the reasons set forth in the remainder of this Opinion, Defendants' motion to dismiss is granted in part and denied in part.

BACKGROUND¹

A. Factual Background

1. Plaintiff's Employment at Harte Hanks²

Plaintiff, a 50-year-old Korean native, was recruited to work for Harte Hanks by Robert Fuller, with whom Plaintiff had previously worked. (Compl. ¶¶ 25-26). At the time of his discussions with Fuller and others from Harte Hanks, Plaintiff was living in Arkansas. (Id. at ¶ 27). However, he openly discussed the fact that he was planning to move to New Jersey to be closer to his family. (Id. ). Harte Hanks did not have an office in New Jersey, but the Company offered to let Plaintiff work from a home office in New Jersey. (Id. ). As part of his employment offer, Harte Hanks reimbursed Plaintiff for $3,000 in moving costs for Plaintiff to move from Arkansas to New Jersey. (Id. at ¶ 29).

Plaintiff began work at Harte Hanks in April 2013 as a Senior Project Manager and immediately excelled in his employment. (Compl. ¶¶ 24-25, 30). In his 2014 performance review, Plaintiff's supervisor described Plaintiff as a "strong performer and a critical member of the team." (Id. ). In recognition of his performance, Plaintiff was promoted to a Product Planning Manager in January 2015. (Id. at ¶ 31).

Throughout Plaintiff's employment with Harte Hanks, he worked almost exclusively from his home office in New Jersey. (Compl. ¶¶ 28, 34, 37). Harte Hanks provided Plaintiff with equipment, including a laptop and other accessories, that allowed him to accomplish his work remotely. (Id. at ¶ 32). Harte Hanks also provided Plaintiff with online subscriptions for working remotely, including Skype, Microsoft Sharepoint, BaseCamp, IBM Connections, Trello, and other software programs. (Id. at ¶ 33). Plaintiff routinely made and received phone calls and sent and received email communications from his home office in New Jersey. (Id. ¶ 35). Indeed, over the course of Plaintiff's three years of employment at Harte Hanks, he traveled to the Company's Pennsylvania office (the "Pennsylvania Office") only when someone scheduled a meeting that required his personal attendance, which amounted to fewer than 20 times. (Id. at ¶¶ 36, 38). Every time Plaintiff was required to travel to the Company's Pennsylvania Office, he was reimbursed for travel expenses. (Id. at ¶¶ 36, 38).

In September 2015, Plaintiff participated in a telephone call with Nina Hall, a Human Resources representative with Harte Hanks. (Compl. ¶ 39). On the call, Plaintiff asked Hall whether she could confirm Plaintiff's remote working arrangement in writing. (Id. ). In response, Hall told Plaintiff that it was not necessary to do so because there was a clear understanding when Plaintiff was hired that he would be working remotely. (Id. ).

In June 2015, Plaintiff's supervisor left his position with Harte Hanks and Plaintiff was assigned to report to Natalie Bush, Vice President of Customer Experience Enablement. (Compl. ¶ 40). Following this change in reporting structure, Plaintiff was subjected to disparate treatment by his younger, white, and American born-managers and co-workers that he believed to be based on his age, race, ancestry, and/or ethnicity. (Id. at ¶ 41). Almost immediately after Plaintiff began reporting to Bush, she and other managers removed many of Plaintiff's key responsibilities from him, such as the status reports he provided to senior leadership, his formal contract liaison responsibilities, and his provision of support functions to other departments. (Id. at ¶ 42). These and other key assignments were redistributed to his younger, white, and American-born co-workers. (Id. ). Plaintiff was also routinely excluded from work-related emails among the product team; in many instances, Plaintiff had to ask specifically for certain emails in order to receive them. (Id. at ¶ 43). Plaintiff's younger, white, and American-born co-workers were not similarly excluded from these communications. (Id. ).

After this treatment continued for approximately three months, Plaintiff reported to Hall that he believed he was being treated differently as a result of his age, race, national origin, and/or ethnicity. (Compl. ¶ 44). Hall purportedly looked into Plaintiff's concerns and claimed to find no evidence of discrimination. (Id. at ¶ 45). However, Hall told Plaintiff that Frank Grillo, the Company's newly-hired Chief Management Officer, would now be responsible for resource management and resolving internal conflicts for the Product Team, and she suggested that Plaintiff speak with Grillo to clarify Plaintiff's role on the team going forward. (Id. ).

Plaintiff followed Hall's recommendations, but his marginalization (and, by extension, his concerns) only worsened. (Compl. ¶ 46). Grillo demoted Plaintiff from a product planning role to a project management role, and additional responsibilities were taken away from Plaintiff. (Id. ). When he changed Plaintiff's role, Grillo told Plaintiff that he did not see Plaintiff as a successful product manager — despite the fact that Plaintiff had been successfully doing product management work for the preceding two-and-a-half years with excellent reviews. (Id. at ¶ 47). When Plaintiff pressed Grillo for specific reasons for this belief, Grillo could not elaborate beyond saying, "that's how I see you." (Id. at ¶ 48). Grillo also told Plaintiff that this was his "seat on the bus." (Id. ). To Plaintiff, this indicated a tacit confirmation of Grillo's bias. (Id. ). Plaintiff was given no explanation for the significant reduction in his role and no other choice but to accept the demotion, since he needed the job. (Id. at ¶ 49).

From December 2015 through April 2016, Plaintiff continued to receive conflicting advice from Bush and Grillo regarding his role at Harte Hanks. (Compl. ¶ 50). Plaintiff also continued to be marginalized by the younger white and/or American-born members of the team and felt like he was being treated like a contractor rather than a fellow colleague. (Id. at ¶ 51). In April 2016, one of Plaintiff's younger, white, American-born colleagues told Plaintiff that he (the colleague) needed to focus on meeting people and, as a result, he needed Plaintiff to handle his more technical (and less desirable) tasks so that, in the colleague's words, "I don't have to think about it." (Id. at ¶ 52). Plaintiff felt that he was being expected to handle the more technical and less desirable tasks because of his ethnicity as an East Asian male. (Id. at ¶ 53). Because of his work ethic and commitment to Harte Hanks, Plaintiff continued to handle the work that no one else wanted to do and successfully completed all the tasks he was assigned. (Id. ).

On April 26, 2016, Plaintiff elevated his concerns to Bush and cited what he perceived as a double standard. (Compl. ¶ 54). In response, Bush suggested that they schedule a conference call with Grillo for the following day, Wednesday, April 27, 2016. (Id. ). In advance of the call, Plaintiff sent Grillo and Bush a research study discussing stereotypes faced by East Asian males in the workplace; Plaintiff believed this study offered support for the discrimination that he believed he was experiencing. (Id. at ¶ 55).

Any hope that the April 27 conference call would resolve Plaintiff's issues was short-lived: Before Plaintiff could even voice his concerns, Grillo cut him off and told him, "if Natalie can't use you the way she needs to use you then you have no value to me," before hanging up the phone. (Compl. ¶ 56). Plaintiff and Bush were shocked by Grillo's conduct, but the two of them continued their discussion. (Id. at ¶ 57). While Bush attempted to address Plaintiff's concerns, it was clear that without Grillo she could not provide the role clarity that Plaintiff was seeking. (Id. ). For his part, Plaintiff again reiterated that he felt that he was being treated differently because of his race, national origin, and/or ethnicity. (Id. at ¶ 58). Bush concluded the call by telling Plaintiff to give it some thought and let her know by the end of the week how he wanted to move forward. (Id. ). At no point during the call did Bush intimate that Plaintiff's job was in jeopardy. (Id. at ¶ 59).

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