Kwan v. Andalex Grp., LLC
| Decision Date | 22 May 2012 |
| Docket Number | 10 Civ. 1389 (KBF) |
| Parties | ZANN KWAN, Plaintiff, v. THE ANDALEX GROUP, LLC, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Plaintiff Zann Kwan is a woman of Singaporean descent. She brought this action in February 2010, alleging violations of Title VII of the Civil Rights Act of 1964 ("Title VII") and the New York State and City Human Rights Laws ("NYSHRL" and "NYCHRL," respectively) by her employer, the Andalex Group, LLC ("Andalex"), for discrimination on the basis of gender and national origin and for retaliation. Plaintiff also alleges that Andalex violated the Employee Retirement Income Security Act of 1974 ("ERISA") by failing to provide her with timely notice of her rights under the Consolidated Omnibus Budget Reconciliation Act ("COBRA") after her termination.
The parties have conducted discovery, including exchanging documents and taking a number of depositions. Defendant has now moved for summary judgment as to all of plaintiff's claims. That motion was fully briefed on April 4, 2012.
No rational juror could find for plaintiff in this case after comparing the overwhelming facts in the record supportive of legitimate business reasons for plaintiff's termination with what may only be characterized as cobbled together conduct allegedly supportive of discrimination and retaliation. The law requires far more than what plaintiff has presented in opposition to defendant's motion. Accordingly, for the reasons set forth below, this Court GRANTS that motion in its entirety.
Andalex is a small, New York-based, family-owned, real-estate management company. It specializes in large gaming and commercial properties. During the period of plaintiff's employment, from April 9, 2007 to September 26, 2008, Andalex had approximately 20-25 employees. Allen Silverman is the founder and Chief Executive Officer ("CEO") of Andalex. His sons, Andrew Silverman and Alexander Silverman, are the Chief Investment Officer ("CIO") and Chief Operations Officer ("COO"), respectively. Steven Marks is the Chief Financial Officer ("CFO").
Plaintiff Kwan was born in Singapore and came to the United States in 2001. In late 2006, Kwan used Advice Personnel Inc., a recruiting firm, to locate a position at Andalex. She prepared a resume which was provided to Andalex in connection with her job interview in March 2007. Kwan represented thatjust prior to joining Andalex, she had a successful four-year position as a Vice President with Allstone Capital Group ("Allstone") in New York. Kwan's deposition testimony, however, revealed a number of the Allstone-related qualifications on her resume to be somewhere on the spectrum between misleading and untrue. Determining where exactly those alleged qualifications fall on that spectrum is not required for purposes of deciding defendant's motion. At the time Kwan was hired, Andalex did not know of those mischaracterizations or misrepresentations. Andrew Silverman, who made the ultimate decision to both hire and fire Kwan, testified that he relied on her resume in making that decision.1
After being interviewed by Marks and Alexander and Andrew Silverman, Kwan was hired by Andalex in April 2007 as Vice President of Acquisitions. Andrew Silverman made the final decision to hire her. Kwan was an at-will employee, and the offer letter she signed stated that "the employment relationship can be terminated by either one of us at any time for any reason." Her primary responsibilities were supposed to include performing sophisticated financial analyses for various realestate projects Andalex was considering. She was paid a six-figure salary plus benefits and was eligible for a discretionary year-end bonus. In December 2007, Kwan received a $5,000 bonus from Andalex, despite having been at the company for less than a year. Kwan also received two weeks of paid vacation and health insurance. She requested and received vacation time to attend to personal matters, including her brother and sister's respective weddings in Singapore.
From April 2007 until August 2007, Kwan reported to Andrew Feder. Feder left Andalex on amicable terms in August 2007. At his deposition, Feder testified that during the four months that Kwan worked for him, he was satisfied with her work. Following Feder's departure, Kwan began reporting to Marks, Andalex's CFO. Plaintiff asserts that she also reported to Andrew Silverman.
Andrew Silverman testified that he had heard a number of negative things about Kwan's job performance and that he, himself, had had negative experiences working with her. Alex Silverman also testified that another person who worked for Andalex, Ken Morris, complained to him about how Kwan had conducted herself during several business meetings in Texas.2 Marks also told Alex Silverman that he was shocked by Kwan'sbehavior in certain meetings and testified regarding that behavior at his own deposition. According to Alex, Morris also complained to him that Kwan refused to go out to dinner while traveling on business, which, Alex testified, was something that was very important to the company because it allowed colleagues to bond and "pick each other's brains."
Andrew Silverman made the ultimate decision to fire Kwan. He testified that that decision was based on accumulated deficiencies in Kwan's performance over a period of time. He had received feedback from a number of people, including Marks, that Kwan was unable to complete her tasks, lacked an understanding of the business, was unable to produce financial information of any value, her analyses were deficient, and it appeared that she did not have the work experience that Andalex had expected her to have based on the representations on her resume.
Andrew Silverman described Kwan's lack of basic financial skills as "atrocious" and "really embarrassing." He testified that she "just didn't have the skills" and "didn't have the skill set to be able to do th[e] type of financial modeling" required. He also testified that he "was embarrassed for her" because she could not do the work.
In one instance when Andalex was considering purchasing a property in Mexico, an individual from Goldman Sachs who hadbeen provided with a model prepared by Kwan called Andrew Silverman. The Goldman Sachs individual said that based on the model, the investment did not make sense. Andrew Silverman stated that he then realized that the expenses had been calculated incorrectly, and that the model was producing incorrect results. Marks testified that he and another individual spent eight hours redoing the model. Kwan disputes that the model worked incorrectly but does not dispute that Andrew Silverman received a call from Goldman Sachs regarding the unusual output from the model.3
In addition to the issue regarding the model for the Mexico property, Marks identified at his deposition a number of other deficiencies in Kwan's job performance that he had experienced. Particularly, he testified about her inappropriate conduct at business meetings, her inadequate performance with respect to a deal in Argentina, her inadequate performance with respect to a financial model prepared for conversations with J.P. Morgan about equity funding, her failure to meet expectations regarding the hours she worked and her unexplained absences from her desk. On one occasion, Marks asked her to do work on the weekend: Kwan testified that it was a Sunday and that she had askedwhether it was "an emergency" and would have changed her plans if it was; she also explained that she needed certain documents translated to do the work. She conceded that she did not do that work until Monday.
During the time that Kwan was employed by Andalex, the company's business focus changed, and it began working on projects in Latin America. Kwan did not speak Spanish and so required translation assistance to do certain work. Her work experience and skills were also less relevant to Andalex's new focus on hospitality and gaming properties. After Kwan was fired, she was replaced by a female independent contractor, Marta Gutierrez, who spoke Spanish. Two days before Andalex terminated Kwan, the company terminated its Portfolio Comptroller, Burton Garber, a male executive.
Kwan claims that the following conduct is evidence of gender discrimination: (1) She heard Andalex CEO, Allan Silverman, an elderly man to whom she did not report, refer to her as "girl" or "the girl" several times; (2) she was yelled at by Marks in December 2007 for poor performance and found the experience traumatic (she concedes that after that single incident, she continued to socialize with Marks and never requested to report to someone else; she also testified that Marks did not make any comments about her gender during the meeting); (3) on a couple of occasions, the Silvermans allegedlyapologized for having used curse words in front of "a lady;" and (4) Marks criticized her for being "strong willed" and "not embarrassed" to get what she wanted.4
Kwan claims that the following conduct is evidence of national origin discrimination*. (1) A "few times," Marks commented that her accent was "weird" because of the way she pronounced the word "calendar" and made Kwan repeat the word with the pronunciation he suggested; and (2) on another occasion, after Kwan returned from the immigration office to extend her Green Card, Marks commented that he did not know that she was an "illegal alien."
In terms of retaliation, in her papers in opposition to this motion, plaintiff only puts forth a meeting she had on September 3, 2008, in which she declares that she complained to Alex Silverman about discriminatory treatment in pay. During that conversation, Alex explained the decision-making process regarding compensation as "[w]e each talk to [Allen] Silverman about our own men, and he decides." Kwan asked if she was "his" (Alex's) "man," and Alex said that she was probably AndrewSilverm...
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