Monte v. Ernst & Young Llp

Decision Date10 August 2004
Docket NumberNo. 02CIV.6886(LTS)(GWG).,02CIV.6886(LTS)(GWG).
Citation330 F.Supp.2d 350
PartiesRalph MONTE, Plaintiff, v. ERNST & YOUNG LLP, Defendant.
CourtU.S. District Court — Southern District of New York

The Pagan Law Firm, P.C., By William Pagan, Esq., Scott C. Perez, Esq., New York City, for Plaintiff.

Proskauer Rose LLP, By Bettina B. Plevan, Esq., Brad M. Toberowsky, Esq., Avitai Gold, Esq., New York City, for Defendant.


SWAIN, District Judge.

Before the Court in this employment discrimination case is the motion of defendant Ernst & Young LLP ("Defendant" or "E & Y") for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Defendant seeks the dismissal of all of Plaintiff's claims and an award of costs and attorneys' fees.

Plaintiff Ralph Monte ("Plaintiff") alleges that Defendant engaged in discriminatory employment practices in violation of Title VII of the Civil Rights Act of 1964, as amended ("Title VII"), 42 U.S.C. § 2000e; the Civil Rights Act of 1866, 42 U.S.C. §§ 1981, 1983, 1985, 1986, and 1988; the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621; Section 296 of the New York State Executive Law ("NYSHRL"); and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code, Title 8, §§ 8-107 — 8-131. Plaintiff asserts claims of discrimination based on age and national origin in connection with the denial of a promotion and with the termination of Plaintiff's employment. In addition, Plaintiff claims that Defendant retaliated against him by firing him for complaining about Defendant's allegedly discriminatory employment practices. Plaintiff also asserts a hostile work environment claim and a claim of negligent hiring/retention. The Court has subject matter jurisdiction of Plaintiff's federal claims pursuant to 28 U.S.C. § 1331, and of his state and local law claims pursuant to 28 U.S.C. § 1367.

The Court has considered thoroughly all of the parties' submissions pertaining to Defendant's motion. For the following reasons, Defendant's motion is granted in part and denied in part.


The following facts are undisputed unless characterized otherwise. Plaintiff is a male of Puerto Rican and Spanish descent and was born on February 18, 1960. (Compl.¶¶ 22-25.) Defendant Ernst & Young LLP hired Plaintiff on November 28, 1994 as a Senior Manager in its Metropark, New Jersey office. (Def.'s Local Rule 56.1 Statement ("DR56.1") ¶ 2.) Plaintiff was hired to work in the Information Systems Assurance and Advisory Services practice group ("ISAAS"). (Id. ¶ 5.) In October 1998, E & Y consolidated the New York, New Jersey, and Connecticut ISAAS practice groups to form the Metro New York ISAAS group ("MNY ISAAS"). (Id. ¶ 7.) The leader of the MNY ISAAS group, Chris Vandenoever, formed a "Core Team" made up of Senior Managers and Partners, including Plaintiff, each of whom was put in charge of a distinct ISAAS practice area. (Id. ¶¶ 8-9.)

In 1999, Plaintiff and three other Senior Managers in the MNY ISAAS group were considered for promotion to Partner. (Monte Dep., Ex. C to Perez Decl., at 45; Gockel Decl. ¶ 5.) Plaintiff claims that he was told by Vandenoever that he was the number-one rated Senior Manager and that he was the leading candidate of the group to be made Partner. (Monte Dep. at 45.) Neither Plaintiff nor any of the other candidates, all of whom were Caucasian, was promoted to Partner because of the poor financial state of the MNY ISAAS group. (Monte Dep. at 39, 45-46, 50; Doherty Decl. ¶ 4.) In December 1999, however, E & Y hired Sean Culbert as a "direct admit" Partner in the MNY ISAAS practice group. (Id. ¶ 33.) E & Y hired Culbert to build a systems implementation consulting practice in the MNY ISAAS group. (Doherty Decl. ¶ 7.) Prior to being hired by E & Y, Culbert worked as a consultant on large-scale systems implementation. (Id.) Neither Plaintiff nor any other member of the MNY ISAAS group had systems implementation consulting experience of the type Culbert possessed. (Id.) Plaintiff was 39 years old when Culbert was admitted as a Partner. (DR56.1 ¶ 39.)

In approximately June of 1999, E & Y removed Vandenoever as the head of the MNY ISAAS group due in part to financial losses sustained by the group under his leadership. (Id. ¶ 12.) In approximately July of 1999, E & Y hired Steve Scharkss to replace Vandenoever. (Id. ¶ 13.) Scharkss implemented numerous changes, including disbanding the "Core Team," thereby removing all of the Senior Managers from their practice area leadership roles, and instituting a reduction-in-force to reduce the group's headcount. (Id. ¶ 14.) After Scharkss assumed leadership of MNY ISAAS, approximately ten to thirteen individuals were laid off, including three Senior Managers. (Gockel Decl. ¶ 2; Parker Dep., Ex. D to Perez Decl., at 2.) All three Senior Managers who were laid off were Caucasian. (Gockel Decl. ¶ 4.) One of these Senior Managers, Xenia Parker, testified that the majority of employees laid off after Scharkss' arrival were over the age of 40. (Parker Dep. at 10.)

Senior Managers in the MNY ISAAS group were expected to network and sell projects to clients to keep themselves and their staffs busy with billable work. (Doherty Decl. ¶ 6.) Defendant claims that all Senior Managers, including Plaintiff, were expected to have a minimum utilization (the percentage of an individual's total time spent on billable work) of at least 55% during Vandenoever's tenure as the leader of the MNY ISAAS group, and 68% under Scharkss' leadership. (Monte Dep. at 117; Scharkss Dep., Ex. G to Perez Decl., at 172.) Plaintiff claims that, prior to the arrival of Scharkss, the Partners to whom Plaintiff reported informed him that the target utilization rates were not required of him because his roles and responsibilities differed from those of other Senior Managers. (Monte Dep. at 120.) Plaintiff claims that Mr. Johnston, one of the Partners to whom Plaintiff reported prior to Scharkss' arrival, informed Plaintiff that his roles were to be specifically focused on developing the practice, mentoring, hiring and recruiting. (Id. at 122.) According to Plaintiff's own calculation, his utilization percentage for fiscal year 2000 was 33.4%. (Monte Dep. at 202.) Plaintiff does not believe that he ever had an annual utilization rate over 55%. (Id. at 119.)

Plaintiff asserts that, after Scharkss assumed leadership of the MNY ISAAS practice group, "there was an unequal disparity on how accounts were allocated" based on the age and national origin of employees within the group. (PR56.1 ¶ 22.) At deposition, Plaintiff identified four individuals, Xenia Parker, Dave Cozzens, Jerry Lockland, and Phil Karp, whom he alleged received less work and were assigned accounts inferior to those assigned to their younger coworkers. (Monte Dep. at 208.) Terri Craig, a former Partner in the MNY ISAAS group, testified at deposition that certain individuals, united by "common threads" of ethnicity, had difficulty "[getting] involved in projects and activities" following Scharkss' arrival at E & Y. (Craig Dep., Ex. F to Perez Decl., at 26.) Craig named four individuals, including Plaintiff, whom she believed had experienced such difficulty. (Id. at 30.) Three of these individuals were Hispanic and one was Asian. (Id.) Plaintiff alleges that his own workload diminished as a result of the inequitable distribution of accounts under Scharkss' leadership. (PR56.1 ¶ 23.)

Specifically, Plaintiff asserts that Scharkss removed him from two accounts, Bristol-Meyers Squibb and the NYCE A.T.M. project, without offering any explanation. (Id. at 25.) Plaintiff also alleges that he was unfairly passed over for appointment as leader of the Metlife Demutualization Project in 2000. (PR56.1 ¶¶ 43-46.) According to Plaintiff, the role of project leader was assigned to a less qualified and less experienced Senior Manager, Keith Andrezewski, despite the fact that Plaintiff informed both Scharkss and another Partner, John Doherty, that he was available to manage the project. (Monte Dep. at 74-78.) Plaintiff asserts that Andrezewski is a white male in his early thirties who, at the time he was assigned to lead the MetLife project, had less than one year of experience at E & Y. (Monte Dep. at 75.)

Terri Craig served as Plaintiff's counselor from approximately the fall of 1999 until the summer of 2000. (PR56.1 ¶ 26; DR56.1 ¶ 23.) Plaintiff claims that, because he had not been assigned to many projects, he took the initiative to create a plan with Ms. Craig to better utilize his abilities and unused time. (Monte Dep. at 88; Craig Dep. at 47.) As a result, Plaintiff became involved in a number of initiatives that Craig believed would help to launch new services in the Metro New York area and would be beneficial to E & Y's long-term financial health. (Id. ¶ 35; Craig Dep. at 51.) Craig testified that Scharkss was aware of Plaintiff's involvement with these types of projects, which did not generate many billable hours and thus contributed to Plaintiff's low utilization rate. (Craig Dep. at 50.) According to Plaintiff, Scharkss never communicated any dissatisfaction with his performance in this regard. (Monte Dep. at 397.)

Craig testified that, around January of 2000, she became aware that Scharkss maintained a list of individuals, including Plaintiff, whom he wanted to terminate. (Craig Dep. at 44.) At deposition, Craig was asked whether there were any "recurring themes of ethnic background, gender or compensation" with respect to the individuals on the list. (Id. at 45.) She replied that "the majority of them would fall under ... one of those categories." (Id.) Craig recalled the names of seven individuals, including Plaintiff, who were on the list and who had eventually been terminated or had "negotiated their way out of the firm." (Id. at 46.) Three of these individuals were Hispanic and one was Asian. (Id.)...

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