Torrico v. International Business Machines Corp., 01 Civ. 841(GEL).

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Writing for the CourtLynch
Citation213 F.Supp.2d 390
Docket NumberNo. 01 Civ. 841(GEL).,01 Civ. 841(GEL).
Decision Date31 July 2002
213 F.Supp.2d 390
Jorge TORRICO, Plaintiff,
No. 01 Civ. 841(GEL).
United States District Court, S.D. New York.
July 31, 2002.

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Timothy N. Seward, Potomac, Maryland, for Plaintiff.

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John Houston Pope, Epstein, Becker & Green, L.L.P., New York City, for Defendant.


LYNCH, District Judge.

Plaintiff Jorge Torrico brought this action against defendant International Business Machines Corporation ("IBM") alleging violations of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq.; the Civil Rights Act of 1866, 42 U.S.C. § 1981; the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. § 1001 et seq.; and the New York Human Rights Law ("NYHRL"), N.Y. Exec. L. § 290 et seq. IBM moved to dismiss the complaint pursuant to Fed. R.Civ.P. 12(b)(1) and 12(c), arguing that the Court lacks subject matter jurisdiction over Torrico's claims and that the complaint fails to state a claim upon which relief may be granted. Torrico has now abandoned his claims for relief under § 1981 and ERISA, and accordingly those claims will be dismissed. However, for the reasons that follow, the balance of IBM's motion will be denied.


For purposes of this motion to dismiss, the facts must be taken as pleaded by the plaintiff. Torrico is a citizen of Chile who currently lives in Santiago, Chile. (Compl. ¶ 5.) Torrico's former employer, IBM, is a New York corporation with its principal place of business in Armonk, New York. (Compl. ¶ 6.) From September 1994 until January 2000, Torrico was employed by IBM United States ("IBM US") in the position of General Manager of IBM Latin America/Telecommunications and Media Industry ("IBM LA"). (Compl. ¶ 7; Pl. Opp. to Mot. to Dismiss, Ex. 6 ("Torrico Decl.") ¶ 1.) This position was based in Mt. Pleasant, New York, with concurrent line reporting responsibilities to both the Vice President of Marketing, Services, and Line Operations of IBM LA as well as the Senior Executive Vice President of Marketing for IBM US. (Torrico Decl. ¶ 2.) In this position, Torrico was required to travel continuously between IBM LA's head-quarters in Mt. Pleasant and its marketing prospects in various countries throughout Latin America, including Brazil, Argentina, Colombia, Chile, Mexico, and Peru. (Torrico Decl. ¶ 3.)

In June 1995, IBM LA and Torrico agreed to a three-year temporary rotational assignment to IBM Chile (the "Temporary Assignment"). The Temporary Assignment was conceived in order to help Torrico perform his existing professional duties more effectively by facilitating "a substantial reduction in [his] travel time and [his] response time in dealing with rapidly evolving business opportunities throughout Latin America." (Torrico Decl. ¶ 3.) According to Torrico, no aspect of his employment relationship with IBM U.S. was modified or altered by the Temporary Assignment; IBM, by contrast, maintains that upon this assignment Torrico "became an employee of IBM's subsidiary in Chile." (Torrico Decl. ¶ 4; Ans. ¶ 5.) In a letter agreement concerning the Temporary Assignment dated June 20, 1995, IBM represented that

[i]nternational assignments are temporary in nature. The length of your assignment is based on present business requirements and is subject to change at the discretion of IBM. You are expected to re-enter your home country at the completion of your assignment or any extension.

(Pl. Opp. to Mot. to Dismiss, Ex. 2 ("Assignment Agreement"), at 1 (emphasis added).) IBM also represented to Torrico that since this rotational assignment was to be temporary, IBM LA "[would] be responsible for planning [Torrico's] next

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position in the U.S." (Assignment Agreement at 1.)

The Temporary Assignment commenced on July 1, 1995. (Assignment Agreement at 1.) According to Torrico, upon the commencement of the Temporary Assignment he remained in all respects a U.S. employee of the Mt. Pleasant-based IBM LA. He remained on the IBM U.S. payroll and covered under the U.S. salary and benefit plans throughout the Chile assignment, as contemplated by the terms of the Assignment Agreement. (Torrico Decl. ¶ 5; Assignment Agreement at 2.) For all tax periods during that assignment, IBM withheld federal and New York income taxes and taxes for Social Security and Medicare from his salary paychecks. IBM payroll records identified Torrico's state tax jurisdiction as New York, and in accordance with IBM US's International Assignment Tax Plan, IBM calculated Torrico's federal and state taxes based on the assumption that his state of residence and work location in the United States "did not change prior to or during the assignment." (Assignment Agreement at 2-3 & attachment C; Torrico Decl. ¶ 5; Pl. Opp. to Mot. to Dismiss, Ex. 7.) Torrico's base compensation and annual bonuses during the Temporary Assignment were reviewed and determined by IBM U.S. in Mt. Pleasant. (Torrico Decl. ¶¶ 2, 5.) He also received a number of employee benefits in line with those of IBM's U.S. employees—for example, he remained covered under IBM US's benefit plan, which included his medical and dental benefits, and received "Incentive Stock Options" that only were available to U.S. executives on IBM's U.S. payroll. (Assignment Agreement, attachment E; Def. Mot. to Dismiss, Ex. 3-5.) In 1997, Torrico also was enrolled in IBM's Extended Tax Deferral Savings Plan, a plan also that was available exclusively to IBM's U.S. employees. (Pl. Opp. to Mot. to Dismiss, Ex. 4.)

Since the Temporary Assignment had line reporting responsibility directly to the IBM LA unit of IBM U.S. in Mt. Pleasant, Torrico traveled regularly to Mt. Pleasant for meetings. On average these meetings occurred every two months; IBM U.S. was responsible for all strategic, budgetary, and organizational decisions concerning the telecommunications industry marketing campaign that Torrico directed in Latin America. (Torrico Decl. ¶¶ 2, 5.) According to Torrico, he never had any direct line reporting obligations to IBM Chile or any other foreign subsidiary of IBM US. (Torrico Decl. ¶ 5.)

IBM also represented to U.S. immigration officials that Torrico was a U.S. employee. In a November 1995 letter to the Immigration and Naturalization Service, IBM verified "the continued employment of Mr. Jorge Torrico with our company, IBM," and noted that Torrico "has been assigned to IBM Chile for a period of 3 years, beginning July 1, 1995. Following this assignment, he will be reassigned to a position in the United States." (Pl. Opp. to Mot. to Dismiss, Ex. 3 (emphasis added).) Later, in July 1998, IBM Chile certified to the U.S. consulate in Santiago, Chile, that Torrico was an employee of IBM U.S. on temporary assignment to IBM Chile.1 (Pl. Opp. to Mot. to Dismiss, Ex. 5.)

Although the Temporary Assignment had been due to end in 1998, the assignment was extended for an additional year. (Pl. Br. at 8 n. 4.) In early 1999, Torrico was advised that IBM planned to consolidate his division with another, requiring him to obtain a new position within the

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company. Accordingly, Torrico began the interview process for a position with IBM's Telecommunications and Utilities Sector, U.S. Consulting Practice, in New York. (Compl. ¶ 8.) However, Torrico became very ill in January 1999 as a result of an autoimmune disease that caused, among other symptoms, severe chronic fatigue, reactive arthritis and peripheral neuropathy, and severe muscular pain throughout his body. (Compl. ¶ 9.) At one point on January 23, 1999, Torrico collapsed and required medical attention. (Compl. ¶ 8.) Torrico's physician advised him that on account of this condition, he would require rest and would not be able to work for approximately six months. (Compl. ¶ 11.) Accordingly, Torrico informed his employer of his illness and went on a medical leave of absence on January 24, 1999.

Throughout his leave of absence, Torrico informed Dr. Linda Rock, IBM's Head of Occupational Health, of his condition and the progress of his treatment. His condition improved over time, and by November 1999, Dr. Rock recommended to the General Manager of the Telecommunications and Utilities Sector that Torrico return to work on a limited basis and under a part-time schedule. (Compl. ¶ 13.) However, IBM did not follow this recommendation, and instead informed Torrico in December 1999 that since his division had been reorganized, it would be his responsibility to find another position within IBM by January 31, 2000; otherwise, he would be terminated. (Compl. ¶ 14.) Torrico therefore began again to look for a new position within IBM. Upon learning that a position was expected to open in IBM's Internet Division in March 2000, Torrico requested that his termination date be extended until March 31, 2000, in order to provide him an opportunity to be hired for that position. Torrico emphasized that his request for this accommodation resulted from his being physically incapable of working or looking for a new position within IBM throughout much of 1999 on account of his illness, and that only recently had he been cleared by physicians to work on a limited basis. (Compl. ¶ 15-16.) He protested that the limited period of time within which IBM expected him to find a new position was discriminatory, given his illness, and that the January 2000 termination date would deprive him of highly valuable IBM stock options that had been part of his salary and benefits package and were scheduled to vest in February and March 2000. (Compl. ¶ 17.)

Notwithstanding Torrico's request, IBM refused to extend Torrico's termination date, and he was terminated—while still on medical leave—on January 31, 2000, by Khalil Barsoum, the Global Manager of Telecommunications & Utilities Industry of IBM US. (Compl. ¶ 19; Torrico Decl. ¶ 6.) Torrico filed this action pro se on February 2, 2001, asserting claims under the...

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