Hammell v. Banque Paribas

• Decision Date: 18 December 1991
• Docket Number: No. 90 Civ. 4799 (JSM).,90 Civ. 4799 (JSM).
• Citation: 780 F. Supp. 196
• Parties: William S. HAMMELL, Plaintiff, v. BANQUE PARIBAS, Defendant.
• Court: U.S. District Court — Southern District of New York

780 F. Supp. 196

William S. HAMMELL, Plaintiff, v. BANQUE PARIBAS, Defendant.

No. 90 Civ. 4799 (JSM).

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

December 18, 1991.

Walter Meginniss, Gladstein, Reif & Meginniss, New York City, for Hammell.

Laura Hoguet, White & Case, New York City, for Banque Paribas.

MEMORANDUM OPINION AND ORDER

MARTIN, District Judge:

Plaintiff commenced this action against his former employer, defendant Banque Paribas, seeking declaratory, injunctive and compensatory relief for defendant's alleged breach of contract and for alleged violations by defendant of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e-2(a) et seq.; of the New York Human Rights Law, N.Y. Executive Law § 290 et seq.; and of the New York Labor Law § 198-c.

Defendant currently is moving the Court for partial summary judgment dismissing the following causes of action asserted in plaintiff's Amended Complaint:

1. Plaintiff's claim under New York Executive Law § 298-a (second cause of action) that defendants discriminated against plaintiff on the basis of national origin in the payment of bonuses and cost-of-living increases.

2. Plaintiff's claim under New York Labor Law § 198-c (seventh cause of action) seeking cost-of-living increases and bonuses.¹

3. Retaliation claims brought under Title VII (Third Cause of Action) and under the New York Executive Law (Fourth Cause of Action).

For the following reasons, the Court grants defendant's motion and dismisses these claims.

BACKGROUND

Taking plaintiff's allegations as true, plaintiff, a white male, began working for defendant on or about March 3, 1980 in defendant's New York office. Defendant is a bank organized under French law with its principal office in Paris and branch offices in many cities, including Tokyo and New York.

On or about November 12, 1984, defendant offered plaintiff the opportunity to work in defendant's Tokyo branch as its Deputy General Manager. He agreed to the transfer, effective January 1, 1985, pursuant to the terms of a letter agreement (the "Agreement"). The Agreement stated that the transfer was to be for a three-year period subject to extensions as agreed to by the parties. At the conclusion of the assignment plaintiff was to be reintegrated into defendant's New York office.

The Agreement also set out plaintiff's remuneration and the currencies and manner in which payment would be made. For instance, the Agreement indicated that plaintiff was to receive a bonus which would be determined each year of his assignment in Tokyo, with a minimum bonus in the first year in the amount of $15,000.00. The bonus was to be based upon plaintiff's performance and the performance of his Tokyo branch. The Agreement also provided that plaintiff was to receive annual cost-of-living increases during his stay in Tokyo.

Plaintiff claims that he received excellent performance ratings throughout his detail in Tokyo, and the performance of the Tokyo branch improved during his tenure. Despite these favorable evaluations and the improved performance, plaintiff asserts that he received a significantly lower bonus in 1987 than that given to managers of French origin who were similarly situated. Plaintiff further contends that he received no bonus in 1988, while similarly situated French managers received bonuses.

Additionally, plaintiff argues that despite increases in the cost of living in 1987 and 1988, plaintiff did not receive any cost-of-living increase in his salary in 1988 or in 1989. Plaintiff contends he was denied cost-of-living increases and bonuses comparable to that received by similarly situated French managers as a result of his American national origin.

On April 3, 1989 defendant notified plaintiff that his detail in Tokyo was to be terminated. Defendant simultaneously offered plaintiff a position in Credit Administration in defendant's New York branch. Plaintiff alleges that the position offered was one of lower prestige, salary and responsibility than the position he held in Tokyo and in New York prior to his transfer. Plaintiff claims that he declined the offer and asked that his Tokyo detail be continued or that he be offered a more suitable position. On or about May 11, 1989, defendant notified plaintiff that his employment would be terminated as of June 20, 1989 because he had declined the Credit Administration position. Plaintiff claims that he was not offered other positions suitable to his background because of his national origin.

Following the termination of his employment plaintiff continued to occupy the Tokyo apartment that was provided to him by defendant pursuant to the express terms of the Agreement. In November of 1989 plaintiff filed a charge of discrimination against defendant with the Equal Employment Opportunity Commission. Plaintiff contends that shortly after defendant had been notified of the filing of plaintiff's charge, defendant raised the rent in the Tokyo apartment twenty-fold, and demanded that plaintiff vacate the apartment within three weeks or pay the increased rent retroactive to July 1, 1989. Defendant later commenced an action in Japan for the rent increases and plaintiff's eviction.

DISCUSSION

Rule 56(c) provides that summary judgment "shall be granted forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." With the above standard in mind, the Court will now address defendants' summary judgment motions.

I. New York Executive Law Claim

In his second cause of action, plaintiff claims that defendant's failure to pay him cost-of-living increases and bonuses comparable to that received by similarly situated French managers violated Section 296 of New York's Executive Law, which bars unlawful discriminatory practice. Plaintiff argues that N.Y.Exec. Law § 298-a extends the reach of the Human Rights Law² extraterritorially to encompass acts of defendant in Tokyo.³ Plaintiff seeks compensatory relief for mental anguish pursuant to the New York Executive Law.

Although N.Y.Exec.L. § 298-a permits a New York resident to sue a domestic corporation for discriminatory acts committed outside New York, it does not provide a private civil cause of action to New York residents discriminated against out of state by a foreign corporation. Sherwood v. Olin Corp., 772 F.Supp. 1418, 1425 (S.D.N.Y.1991). The Executive Law in this situation restricts available remedies to administrative proceedings before the New York State Division of Human Rights. Sherwood, 772 F.Supp. at 1421. Plaintiff thus has no claim before the Court for relief under this statute.

Furthermore, even if a civil remedy were permitted for discriminatory acts by foreign corporations against New York residents in states other than New York, the statute does not apply extraterritorially. A recent Supreme Court decision, E.E.O.C. v. Arabian American Oil Co., ___ U.S. ___, 111 S.Ct. 1227, 113 L.Ed.2d 274 (1991), found that Title VII does not reach discriminatory actions in foreign countries. In reaching its conclusion the Supreme Court set stringent criteria which a statute must meet in order to apply abroad. The Court emphasized that Congress, and therefore by implication the states, legislates "against the backdrop of the presumption against extraterritoriality." E.E.O.C., 111 S.Ct. at 1230. The legislators therefore must make "a clear statement that a statute applies overseas." E.E.O.C., 111 S.Ct. at 1235.

As with Title VII, the New York Human Rights Law contains no clear indication of its applicability to acts occurring outside the United States. Although one could construe the language of § 298-a(1) quoted in footnote three above as indicating such applicability, an alternative construction is equally plausible. The New York State legislature in extending the statute's reach to acts outside the state could easily have been referring to acts in other states, and not seeking to exert its authority abroad. Thus, in view of the presumption against extraterritorial reach such language is insufficient to establish extraterritorial application.

In E.E.O.C. the Supreme Court faced with a similar situation considered two alternative constructions of the language of Title VII — one which asserted that it indicated an intent for the statute to apply abroad and one which contended the opposite. The Court declined to choose an interpretation, but rather noted the presumption against extraterritorial application and the ambiguity of the cited language, E.E.O.C., 111 S.Ct. at 1231, in ultimately concluding that the language failed to establish applicability abroad. E.E.O.C., 111 S.Ct. at 1233.

Furthermore, the Supreme Court declined to find extraterritorial applicability appropriate in the face of stronger evidence of Congressional intent for the statute to reach acts abroad than we have before us in the instant case. Title VII includes an "alien exemption provision" which states that the statute "shall not apply to an employer with respect to employment of aliens outside any state." 42 U.S.C. § 2000e-1. The Supreme Court did not infer from this provision an intent for the statute to apply to the employment of U.S. nationals abroad.

While the Supreme Court's conclusions regarding canons of statutory construction may not be binding authority in interpretation of state statutes, the Court finds its reasoning persuasive. Additionally, since both the E.E.O.C. decision and the case at bar concern the applicability of United States law abroad, an area within the special competence of the federal government, the Court believes it should defer to the guidance supplied by the Supreme Court. It would be incongruous if Congress, which clearly has the power to legislate extraterritorially, was more restricted in drafting such legislation than the...