Yih v. Taiwan Semiconductor Mfg. Co.
| Decision Date | 24 June 2019 |
| Docket Number | No. 18-CV-3844 (CS),18-CV-3844 (CS) |
| Parties | JIHSHYR YIH, Plaintiff, v. TAIWAN SEMICONDUCTOR MANUFACTURING COMPANY, Defendant. |
| Court | U.S. District Court — Southern District of New York |
Appearances:
JihShyr Yih
Yorktown Heights, New York
Pro se Plaintiff
Jessica Kastin
Erika D. Cagney
Jones Day
New York, New York
Before the Court is the motion to dismiss of Defendant Taiwan Semiconductor Manufacturing Company ("TSMC"). (Doc. 14.)
Plaintiff JihShyr Yih is an Asian male of Chinese descent. (Doc. 13 ("AC") ¶ 1.) He is a United States citizen, has lived in the United States for thirty-six years, and currently lives in New York with his family. Plaintiff holds a PhD from the University of Michigan - Ann Arbor in Computer Science and Engineering, and he wrote his doctoral thesis on "semiconductor self-repair design methodologies." (Id. ¶¶ 18, 21.) Plaintiff has "over 20 years in experience," including eight years at International Business Machines, ("IBM"), where he received "a highest order honor shared by fewer than 200 employees." (Id. ¶¶ 18-19.) He helped create the "IBM Thomas J. Watson Services Research, an organization of over 550 world-class researchers, engineers, and mathematicians," where he served as chief of staff. (Id. ¶ 20.)
Defendant TSMC is a multi-billion-dollar Taiwanese corporation headquartered in Hsinchu, Taiwan, with its principal place of business in Taiwan. (Doc. 16 ("Chao Decl.") ¶ 3; Doc. 19 ("Yih Decl.") ¶ 7.) Plaintiff alleges that TSMC has "numerous contacts with the United States," (AC ¶ 8), and prominent members of its leadership are American, including "the Chairman, a co-CEO, four out of ten [members of the] Board of Directors, and at least five executives [o]n the management team," (id. ¶ 10). Plaintiff further alleges "seven of [Defendant's] top ten shareholders are American," (id. ¶ 9), including "the largest major shareholder," the American Depository Receipt-TSMC, Ltd., ("ADR-TSMC"), which holds 20.6% of TSMC's shares, (Yih Decl. ¶ 2). According to Plaintiff, Citibank, which is "based in New York," controls ADR-TSMC. (Id. ¶ 3.) Defendant states that "ADR is not a dominant shareholder of TSMC stock" but is rather "an investment vehicle required for maintaining a listing on the [New York Stock Exchange ("NYSE")]." (Doc. 17 ("Hung Decl.") ¶ 5.)
In 2017, "approximately 0.003% of TSMC's total . . . revenue came from New York-based customers." (Id. ¶ 4.) Defendant also operates two "U.S.-based subsidiaries, i.e., TSMC North America and WaferTech LLC." (Yih Decl. ¶ 7.) These subsidiaries produced $22 billion of the Defendant's $32 billion net revenue in 2017. (Id.) TSMC North America ("TSMC NA") and TSMC are "separate corporate entities," and TSMC NA is incorporated in California and hasits principal place of business there. (Chao Decl. ¶¶ 9-10.) Neither TSMC NA nor TSMC have offices in New York. (Id. ¶¶ 8, 12.)
Defendant has fifteen employees working in the United States on "limited-term overseas assignments," but none of them are in New York. (Id. ¶ 6.) Further, none of the TSMC employees in the United States work in the Business Operations Division or Information Technology ("IT") Division, as all of the Business Operations jobs are in Taiwan, and the IT employees are predominantly in Taiwan except for less than 1% based in China. (Doc. 18 ("Chang Decl.") ¶¶ 5, 11, 13.)
On April 6, 2017, Defendant asked Lighthouse Global Resources ("LGR"), a Singapore-based recruiting firm, to fill a "Senior Business Intelligence Analyst" position in the "Business Operations Division under TSMC's Corporate Planning Organization." .) The position specification in Defendant's request to LGR said the position was in Hsinchu. (Id. Ex. A at 3.) On July 14, 2017, Jun Huang, a recruiter at LGR "mainly taking care o[f] Taiwan activities," emailed Plaintiff about a job opportunity with TSMC. (Yih Decl. Ex. E at 15; see AC ¶ 22.)1 In the email, Mr. Huang wrote:
(Yih Decl. Ex. E at 15.) Plaintiff responded to the email seeking more information about the position, and Mr. Huang replied with a job description and a list of requirements and responsibilities. (Id. at 14-15.)2
Plaintiff states that when he was contacted by LGR, he "sought employment with Defendant [for a] job locat[ed] in New York" and alleges that neither the Defendant nor LGR "stipulate[d] job location as a requirement." (AC ¶¶ 14, 16.) After Plaintiff had discussions with LGR, an LGR recruiter emailed TSMC stating that Plaintiff was "open[] to relocat[ing]." (Chang Decl. Ex. B at 2.)
Following phone calls with Mr. Huang and Tammy Lee (another LGR employee), Plaintiff scheduled an interview with Defendant, to be conducted over Skype, for the position of "Statistical/Predictive Modeling Architect/Leader of the Corporate Planning Organization." (AC ¶¶ 22-23.) TSMC HR managers Wenwei Chang and Claire Yin conducted a "preliminary screening interview." (Id. ¶ 23; Chang Decl. ¶ 7.)3 After Plaintiff told Mr. Chang and Ms. Yin about his "background, experiences, achievements, and past awards," Mr. Chang asked Plaintiff: "How many children do you have?" and "Does your wife work?" (AC ¶¶ 23-24.)
On September 5, 2017, Plaintiff received an email from Mr. Huang informing him that TSMC was interested in arranging an interview with Plaintiff for a different job, this one in theIT department. (Yih Decl. Ex. H at 22). On September 25, 2017, Plaintiff had a second Skype interview, and it, like the first, began with a discussion of Plaintiff's qualifications and experience. (AC ¶¶ 27-30.) But again Defendant's representatives asked Plaintiff a series of "family related questions," including: (Id. ¶¶ 32-33.) The interview ended "without any job qualifying questions." (Id. ¶¶ 35-36.)
Following the interview, Plaintiff emailed the LGR recruiters expressing his discontent with Defendant's "interrogating and inappropriate questions concerning his family." (Id. ¶ 37.) Mr. Huang informed Plaintiff that he had contacted Defendant's HR department to report the issue. (Id. ¶ 39.)
On or about October 3, 2017, Ms. Lee informed Plaintiff that Defendant did not offer him a job. (Id. ¶ 41.) Ms. Lee allegedly told Plaintiff that "he was too senior to fit in." (Id.) On or about October 5, 2017, Plaintiff spoke on the phone with the HR Director of TSMC, and Plaintiff said that he felt he had been discriminated against. (Id. ¶ 42; see id ¶ 41.) On October 13, 2017, Plaintiff received an email from Defendant's attorney, explaining that the "reason [Defendant] asked questions regarding [Plaintiff] and [Plaintiff's] family members is to learn about that, should [Plaintiff] determine to work in Taiwan" so that Defendant "could assist [Plaintiff] and [his] family on possible issues that might arise from [their] relocation to Taiwan . . . considering [Plaintiff] and [his] famil[y] have stayed in the U.S. for many years." (Chang Decl. Ex. C at 2, 4.) The email also stated that Plaintiff was not chosen for the position because of his vague, unspecific answers to questions about his experience and his failure to provide references, (id. at 3), even though Plaintiff alleges he emailed references to Defendant three days after theinterview, (AC ¶¶ 40, 45). Defendant's counsel also warned that "TSMC reserve[d] its rights to pursue legal procedures" should Plaintiff "disclose, disseminate or distribute to the media, the public and any other third parties" information related to the interview without the Defendant's prior approval, or make any untruthful statements about the process. (Chang Decl. Ex. C at 4.)
Plaintiff filed a charge of discrimination against Defendant with the Equal Employment Opportunity Commission ("EEOC") on October 30, 2017. (See AC ¶ 3.) He received a Notice of Right to Sue from the EEOC on February 5, 2018. (Id.)
Plaintiff filed his pro se Complaint on April 30, 2018, (Doc. 1), and on June 5, 2018, Defendant sent a letter to the Court requesting a pre-motion conference in anticipation of its motion to dismiss, (Doc. 8). On July 2, 2018, the Court held a pre-motion conference and granted Plaintiff leave to amend. (Minute Entry dated July 2, 2018.) Plaintiff filed his AC on August 1, 2018, bringing the following claims: (1) discrimination on the basis of sex and national origin under Title VII of the Civil Rights Act, 42 U.S.C. §§ 2000e, et seq.; (2) discrimination on the basis of age under the Age Discrimination in Employment Act, 29 U.S.C. §§ 621, et seq.; and (3) discrimination under the New York State Human Rights Law. (AC at 3-4.) Plaintiff seeks $167.23 million in back pay and front pay, and an unspecified amount for emotional distress and punitive damages. (Id. at 6.) On September 6, 2018, Defendant filed a motion to dismiss the AC, (Doc. 14), and a memorandum of law in support of its motion, (Doc. 15 ("D's Mem.")). Plaintiff opposed Defendant's motion, (Doc. 20 ("P's Opp."), and Defendant filed a reply, (Doc. 21 ("D's Reply")).
Complaints made by pro se plaintiffs are to be examined with "special solicitude," interpreted "to raise the strongest arguments that they suggest," Shibeshi v. City of N.Y., 475 F. App'x 807, 808 (2d Cir. 2012) (summary order) (emphasis and internal quotation marks omitted);4 see Phillips v. Reed Grp., Ltd., 955 F. Supp. 2d 201, 225 (S.D.N.Y. 2013) (...
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