Gallo v. Alitalia-Linee Aeree Italiane-Societa

• Decision Date: 05 November 2008
• Docket Number: No. 07 Civ. 06418(CM)(RLE).,07 Civ. 06418(CM)(RLE).
• Citation: 585 F.Supp.2d 520
• Parties: Francesco GALLO, Plaintiff, v. ALITALIA-LINEE AEREE ITAIANE-SOCIETA PER AZIONI, Pierandrea Galli, and Giulio Libutti, Defendants.
• Court: U.S. District Court — Southern District of New York

585 F.Supp.2d 520

Francesco GALLO, Plaintiff, v. ALITALIA-LINEE AEREE ITAIANE-SOCIETA PER AZIONI, Pierandrea Galli, and Giulio Libutti, Defendants.

No. 07 Civ. 06418(CM)(RLE).

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

November 5, 2008.

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Derek Todd Smith, Akin & Smith, LLC, New York, NY, for Plaintiff.

Alan M. Koral, Charles Spencer Caranicas, Vedder, Price, Kaufman & Kammholz, P.C., Chicago, IL, for Defendants.

DECISION ORDER GRANTING IN PART AND DENYING IN PART DEFENDANTS' MOTIONS FOR SUMMARY JUDGMENT

McMAHON, District Judge:

Introduction

Plaintiff, Francesco Gallo ("Gallo"), is a former employee of defendant Alitalia—Linee Aeree Italiane—Societa per Azioni ("Alitalia"). Alitalia is the national airline of Italy and is headquartered in Rome, Italy; it is licensed to do business in New York. Gallo began working for Alitalia in 1968 as an accountant. During the course of his employment at Alitalia, Gallo rose in rank and, in 2002, became Senior Vice President of Corporate Affairs for North America.

On September 15, 2005, plaintiff and Alitalia entered into an agreement ("the Agreement") that ended Gallo's "regular employment" with Alitalia but made him a "Consultant."¹ (Koral Aff. Ex. 5 ¶¶ 1, 3 (hereinafter Sept. 15, 2005 Agreement).) The Agreement made plaintiff a consultant to Alitalia for an irrevocable term of eighteen months, to be automatically renewed for a successive eighteen months unless Alitalia cancelled the consultancy within six months "before the end of the term in effect at the time."² (Id.)

In May of 2006, Alitalia—through individual defendants Pierandrea Galli ("Galli") and Giulio Libutti ("Libutti") (collectively, "individual defendants")—informed plaintiff that the Agreement would not be renewed. Plaintiff's claims in this case are based on events that occurred after he entered into the Agreement.

Plaintiff alleges that Alitalia, Galli and Libutti (collectively, "the Defendants") engaged in a series of discriminatory practices against him, both while he worked. for Alitalia as a consultant and when the Agreement was not renewed. The bulk of plaintiff's problems began when he became a consultant for Alitalia and reported to a new direct supervisor, defendant Libutti.³ Plaintiff alleges that Libutti—on a daily basis—asked him about his perceived sexual orientation and made crude and discriminatory comments about gays and lesbians. In some instances, Libutti's conduct purportedly resulted in physical confrontations with plaintiff.

For example, during a business teleconference in December 2005, Libutti, who was not in the office, allegedly asked plaintiff, "How are all the froci⁴ at Alitalia? ... Since I'm not there, you must be very busy taking it in the ass. Try to be good ... Think what would happen if your wife would find out!" (Am.Compl. ¶ 41.) Upon Libutti's return to the office, plaintiff went to Libutti's office and told him that he did not appreciate his conduct during the teleconference and that such conduct needed to stop immediately. In response, plaintiff claims that Libutti grabbed his arm, closed the office door and yelled:

"sit down on this fucking chair, and listen to me carefully, or I will break your ass ... oh no, no you might like that very much, but listen to me once and for all: as you should know by now, I am a real and convinced fascist, like your friend Mazzucco, [sic] I hate with all my passion gays, lesbians, Jews, and all these fucking Americans [sic] attorneys, [sic] that protect them. Now I understand why you negated your Italian citizenship and became one of them. Do you think that I don't know that you rushed to become an American, in order to fuck my strategy?"

(Am.Compl. ¶ 42.)

Plaintiff claims that on the day after this confrontation, he informed defendant Galli⁵ of the incident and told him that Libutti had made the working conditions at Alitalia unbearable. Plaintiff claims that Galli subsequently discussed the incident with Libutti, and afterward told plaintiff, "I can assure you, [sic] that it is all in your imagination, Giulio [Libutti] loves you, and he needs your professionalism and capabilities to solve the company's problems. Is it possible that with your health conditions, you are making this up?" (Id. ¶ 43.)

Plaintiff asserts that the incident described above was only an example of the type of discriminatory practice and hostile work environment he suffered while he worked at Alitalia. During this time period, the Defendants allegedly discriminated against older workers, gays, the disabled and Americans. Plaintiff contends that he vigorously opposed such discrimination, and as a result of both the Defendants' discriminatory practices and in retaliation for opposing them, the Defendants' fired plaintiff in May 2006.

Once Defendants purportedly fired Gallo, plaintiff claims that they also slandered him and breached the Agreement.

Plaintiff did not file a charge of discrimination against Alitalia or the individual defendants with the EEOC. Instead, he brought suit under the New York State Executive Law section 296 and the New York City Human Rights Law section 8-107, alleging hostile work environment, discriminatory termination and retaliation. Additionally, he sued for claims in defamation and breach of contract. This entirely nonfederal suit is here as a diversity case. The Defendants deny all of plaintiffs claims and move for summary judgment dismissing all of them.

For the reasons set forth below, each defendant's motion is granted in part and denied in part.

Facts

The Court begins by noting that plaintiff has failed to comply with Local Rule 56.1. The purpose of the rule is to streamline the consideration of summary judgment motions by freeing district courts from the need to hunt through voluminous records without guidance from the parties. See Monahan v. New York City Dep't of Corr., 214 F.3d 275, 292 (2d Cir.2000); Watt v. New York Botanical Garden, 2000 WL 193626, at *1 n. 1 (S.D.N.Y. Feb.16, 2000). To that end, the plaintiffs obligation under Local Rule 56.1(b) in responding to a defendant's statement under Local Rule 56.1(a) is clear:

The papers opposing a motion for summary judgment shall include a correspondingly numbered paragraph responding to each numbered paragraph in the statement of the moving party ...

Local Rule 56.1(c) is equally clear in setting forth the consequences of the plaintiffs failure to comply with Local Rule 56.1(b):

Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing party.

In the present case, the Defendants, as the moving party, submitted a 61—paragraph statement of allegedly undisputed facts pursuant to Local Rule 56.1(a). Plaintiff responded with a 15—paragraph "counter-statement" of undisputed facts that apparently corresponds to the numbered paragraphs that the Defendants submitted.⁶ Notably, the "counter-statement" bears little relation to the numbered paragraphs in Defendants' Rule 56.1 statement, and for the most part cites only plaintiffs own affidavit as evidence in support of his own Rule 56.1 statement.⁷ Indeed, plaintiffs submission can hardly be deemed a response to Defendants' statement since plaintiff neither admits nor denies a single fact asserted by the Defendants.

Based on plaintiffs failure to comply with Rule 56.1, Defendants urge this court to deem each of the facts asserted in its Rule 56.1 statement admitted to the extent they are not addressed by plaintiffs counter-statement. (Def. Alitalia Reply Mem. at 2.). Defendants' further assert that the plaintiffs failure to follow Rule 56.1 means that the Defendants' reply brief "need address only issues that are addressed in Plaintiffs `Counter-statement of Undisputed Facts.'" (Id.) For the reasons stated below, the Court deems the facts asserted in Defendants' Rule 56.1 statement admitted, but will independently review the record for evidence supporting claims that Defendants' Rule 56.1 statement does not address.

A district court has broad discretion in determining whether to overlook a party's failure to comply with local court rules. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 73 (2d Cir.2001). Specifically, while a court "is not required to consider what the parties fail to point out" in their Local Rule 56.1 statements, it may in its discretion opt to review the record independently even where one of the parties has failed to file such a statement—or, presumably, where the statement filed by a party fails to satisfy the dictates of Rule 56.1. See Monahan, 214 F.3d at 292 (internal citations and quotation marks omitted). A district court may not grant summary judgment under Fed. R.Civ.P. 56 unless it is satisfied that judgment for the moving party is "appropriate" because "the ... admissions on file ... show that ... the moving party is entitled to judgment as a matter of law." Holtz, 258 F.3d at 74 n. 1.

The following relevant facts are deemed undisputed, unless otherwise noted; where the facts are disputed, they are viewed more favorably to plaintiff, the non-moving party.

A. Plaintiffs Employment History

1. Pre-Agreement Employment

In 1968, plaintiff began his employment with Alitalia as an accountant. During the course of his employment at the company, Gallo rose in rank, eventually becoming General Manager for the Americas, a position he held until 2002. (Def. Rule 56.1 ¶ 3.) In 2002, Gallo became the Senior Vice President of Corporate Affairs for North America. In this position, Gallo reported directly to Alitalia's Rome headquarters. He oversaw the Vice President of Regulatory...