Full opinion text
DECISION AND ORDER GRANTING IN PART, AND DENYING IN PART, DEFENDANTS’ MOTION FOR SUMMARY JUDGMENT; DENYING PLAINTIFF’S MOTION FOR SUMMARY JUDGMENT; DENYING SUMMARY JUDGMENT TO PLAINTIFF ON ALL OF SCA’S COUNTERCLAIMS; GRANTING SUMMARY JUDGMENT TO SCA ON ITS COUNTERCLAIMS AGAINST PLAINTIFF; AND DENYING PLAINTIFF’S MOTION FOR CLASS CERTIFICATION McMAHON, District Judge. INTRODUCTION Plaintiff Arthur Schanfield (“Schanfield”) brings this action against Sojitz Corporation of America (“SCA”) and individuals Jun Matsumoto (“Matsumoto”) and Takashi Tsukada (“Tsukada”) (collectively, the “Defendants”) alleging race and national origin discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. (“Title VII”); 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991, Pub.L. No. 102-166, 105 Stat. 1071 (1991) (“Section 1981” or “ § 1981”); New York State Human Rights Law, N.Y. Exec. §§ 290 et seq. (“NYSHRL”); and New York City Human Rights Law, N.Y.C. Admin. Code § 8-107(1) (“NYCHRL”). Plaintiff claims that he was personally discriminated against by his employer, SCA, and by his superiors Matsumoto and Tsukada (together, the “Individual Defendants”) because of his race and national origin, and that he experienced a retaliatory discharge because of his complaints of discrimination. Plaintiff also purports to bring class claims against SCA for discriminatory employment practices on behalf of all current and former SCA “non-Japanese/non-Asian” management-level employees. SCA has asserted counterclaims against Schanfield for breach of contract, breach of fiduciary duty and duty of loyalty, and misappropriation of trade secrets. SCA alleges that Schanfield secreted numerous confidential SCA documents and disclosed them to third parties not affiliated with SCA as well as in connection with the instant litigation. Defendants move for summary judgment dismissing plaintiffs complaint in its entirety. That motion is granted in part, and denied in part. Plaintiff moves for summary judgment dismissing SCA’s counterclaims against him. That motion is denied. However, the Court, sua sponte, grants summary judgment to SCA on its counterclaims against plaintiff. Plaintiff also moves for the certification of a class of all current and former SCA “non-Japanese/non-Asian” employees asserting race and national origin discrimination at SCA. SCA opposes class certification. That motion is denied. BACKGROUND I. Facts Relating to Schanfield’s Individual Claim of Discrimination and the Counterclaims Asserted against Schanfield A. Schanfield’s Individual Claim of Discrimination Schanfield alleges that he was discriminated against because he was not Japanese or Asian, and that he experienced a retaliatory discharge from SCA because he reported incidents of discrimination at SCA. SCA Hires Schanfield SCA is a wholly-owned subsidiary of Sojitz Corporation, a global trading company based in Japan. SCA is a New York corporation with its headquarters in New York, and other office locations in the United States and elsewhere. (Defs. Rule 56.1 Stmt. ¶¶ 1-2.) As will be discussed further infra, SCA has two types of employees. “National” employees are those who reside permanently in the United States and are hired by and work directly for SCA. (Id. ¶ 5; Pl. Rule 56.1. CntrStmt. ¶ 5.) Also working at SCA are employees of SCA’s parent company Sojitz, who are seconded from Japan to work at SCA’s United States offices for periods of three to five years. These employees are referred to as “Rotational” employees. All of the Rotational employees are “exclusively Japanese/Asian.” (PL Rule 56.1 CntrStmt. ¶ 9.) National employees are “predominantly American and Caucasian” (id. ¶ 11), although it appears that there are some National employees who are of Japanese or other Asian ancestry. In 2006, SCA decided to hire a Chief Internal Auditor (“CIA”) to build and head a new Internal Audit Department at SCA. (Defs. Rule 56.1 Stmt. ¶ 15.) Plaintiff Schanfield, a naturalized United States citizen from Canada, applied for the CIA position after seeing SCA’s posting with the Institute of Internal Auditors. (Id. ¶ 17.) Schanfield was evaluated by a search team made up of both National and Rotational employees, including defendant Tsukada, a Japanese Rotational employee, who was at that time the Chief Financial Officer of SCA. (Id. ¶ 18.) SCA offered Schanfield the CIA position, and on June 27, 2006, Schanfield countersigned SCA’s offer letter, agreeing to be employed by SCA at will with an annual salary of $185,000 per year. (Id. ¶ 21; Thompson Decl. Ex. 19.) Schanfield, hired by SCA, was a National employee based out of SCA’s New York office. Schanfield’s hiring was approved by defendant Matsumoto, a Japanese Rotational employee, who served as the Chief Executive Officer of SCA. (Defs. Rule 56.1 Stmt. ¶ 19.) Plaintiff asserts that Matsumoto simply rubber stamped his hiring after meeting with him for “ten minutes.” (PL Rule 56.1 CntrStmt. ¶ 19.) Schanfield’s Position at SCA The parties disagree over the level of Schanfield’s seniority at SCA. Defendants assert that plaintiff “held the highest level position in his field” at SCA. (Defs. Rule 56.1 Stmt. ¶ 23.) Plaintiffs official classification was that of a “General Manager,” a position junior only to CEO, CFO, and COO. (Id.) Plaintiff asserts that even though he was called a General Manager, his work was overseen by and he was effectively made to report to Rotational staff of lower rank. In particular, plaintiff asserts that CFO Tsukada brought in Rotational employee Hisashi Akita (“Akita”) from Japan to keep plaintiff in check, and that plaintiff also had to run his work by “Mr. Hirai in Planning, Mr. Manabe in Accounting and Mr. Morita in the Legal Department.” (Pl. Rule 56.1 CntrStmt. ¶ 23; Schanfield Aff. ¶ 8; Defs. Rule 56.1 Stmt. ¶ 24; Matsumoto Dep. Tr. at 25:2-15.) According to Defendants, Akita was brought in from Japan because it was useful to have someone familiar with Japanese auditing standards and techniques. (See Matsumoto Dep. Tr. at 87:14-91:19.) Plaintiff alleges that his experience reflects the failure of SCA to give National employees opportunities for advancement within the company, in favor of Rotational employees. Citing the fact that only Rotational employees fill the CEO, CFO and COO slots at SCA, plaintiff contends that National employees were unfairly denied promotional and managerial opportunities. Schanfield’s Salary at SCA As noted above, at his hiring Schanfield agreed to be employed at a salary of $185,000 per year. Schanfield claims that he was paid less than similarly situated Japanese/Asian employees because of his national origin and his race. He also alleges that SCA failed to pay him any incentive bonus or similar compensation during his ten-month tenure as CIA. Schanfield’s offer letter does not promise a bonus but states that “we will continue discussions on incentive compensation for you.” (Allen Affn Ex. 12 (hereinafter “Offer Letter”).) Schanfield claims that SCA knew he had a higher competing offer when he accepted with SCA, and asserts that Rotational employees are “eligible” for bonuses and incentive compensation under their payment plans. (Pl. Rule 56.1 CntrStmt. ¶ 21.) Schanfield argues that SCA’s failure to pay him a bonus constituted discrimination. (Id.) The Scope of Schanfield’s Duties at SCA The parties do not agree on what exactly Schanfield was hired to do as CIA. In February 2006, a few months prior to plaintiffs hire, the SCA legal department hired an outside consultant to review SCA’s business model. (Defs. Rule 56.1 Stmt. ¶ 26.) That consultant issued an “Internal Control Questionnaire,” which identified a number of issues the consultant recommended SCA address through internal audits, including, inter alia, issues with the Rotational system, communication issues relating to Japanese language and integration of Rotational staff, lack of job descriptions, and training problems. (Id.) Following the outside consultant’s report, SCA’s General Counsel and Chief Compliance Officer, Richard Paice—a National employee—created a “Proposed Action Plan,” for how to address the Internal Control Questionnaire. (Id. ¶ 27.) SCA expected that Schanfield, as the new CIA, would put into practice this Proposed Action Plan. (Id.) Indeed, SCA contends that during the interview process, it gave Schanfield a copy of the Proposed Action plan and asked Schanfield to produce a methodology of how to proceed. (Id.) Defendants expected that Schanfield would generally implement that methodology when he began work at SCA. Schanfield contends, however, that his duties were never specifically laid out and he never had a clear idea of SCA’s expectations of him. (Pl. Rule. 56.1 CntrStmt. ¶ 27.) He admits that during his interview he created an audit methodology based on the Proposed Action Plan provided to him, but asserts that his objectives changed when, upon starting work, he reviewed for the first time a copy of the outside consultant’s Internal Control Questionnaire. (Id. ¶ 28.) According to plaintiff, the Internal Control Questionnaire was much broader than the Proposed Action Plan, and it contained issues related to problems associated with the Rotational system. (Id. ¶ 26; Allen Affn Ex. 3 (hereinafter “Schanfield Dep. Tr.”) at 104:23-105:11. PORTION OF DECISION CONTAINING CONFIDENTIAL MATERIAL REEDACTED FOR PUBLIC FILING According to Schanfield, these issues were not adequately addressed by the Proposed Action Plan. (Paice Reply Affn. ¶¶ 1-2; Thompson Opp’n Decl. Ex. 22.) The Risk Assessment As a precursor to conducting an actual internal audit, Schanfield undertook a preliminary risk assessment. Disagreements quickly arose over the time frame in which Schanfield was expected to complete the risk assessment and how the risk assessment should proceed. Defendants contend that, in July 2006, at the time of his hiring, plaintiff represented to them that he would complete a “high quality risk assessment by December 31, 2006.” Plaintiff counters that he never represented that he could definitively finish the project by year’s end, and that any representation was based on an expectation that plaintiff could hire competent and effective staff—something, as will be discussed further below, plaintiff alleges SCA prevented him from doing. (Def. Rule 56.1 Stmt. ¶¶ 29-30; Pl. Rule 56.1 CntrStmt. ¶¶ 29-30.) Schanfield and Matsumoto also clashed over how to do the risk assessment. Schanfield contends that he pressed Matsumoto and Tsukada to sign off on an “Internal Audit Charter,” which he submits was necessary to provide the basic “road map” for the whole auditing process. Schanfield asserts that the failure of Matsumoto and Tsukada to do so crippled his ability to proceed with the risk assessment and audit procedures. According to Defendants, Schanfield’s preoccupation with creating a “best in class” risk assessment (Allen Aff n Exs. 24, 28) before he conducted any actual internal audits was counterproductive and impractical. (Defs. Rule 56.1 Stmt. ¶¶ 36-38.) Over the course of conducting the risk assessment, Schanfield was frustrated by the flow of information from and problems in communicating with Rotational employees. An October 30 e-mail from Schanfield to, inter alia, Paice, recounts the difficulty Schanfield experienced getting information about potential risks to SCA from certain Rotational employees. (Thompson Deck Ex. 24.) Schanfield Begins Reporting Risks In furtherance of the risk assessment (and ultimate internal audit) Schanfield visited various branches of SCA and interviewed over 100 SCA employees. (Pl. Rule 56.1 Stmt. ¶ 10.) Schanfield provided periodic updates to Tsukada and Matsumoto, as well as other National and Rotational employees, as he performed risk assessments at various offices. (See Defs. Rule 56.1 Stmt. ¶29.) On July 21, 2006, plaintiff sent an e-mail to, inter alia, Tsukada with an attached memorandum entitled “SCA-Preliminary Assessment of the Risks, Current Situation and Contemplated Action Plan by internal auditing.” (Thompson Deck Ex. 23.) In that memorandum, Schanfield mentioned the need for “US style business strategy for all new Rotational Managers” and he also noted under the heading “Absence of detailed job descriptions including competency requirements could result in business objectives not getting accomplished,” All of the rotational staff have excellent skill sets but in some instances these skill sets may be different from what we need here to be able to accomplish the goals and to continue robust growth. The first thing is to determine the competency requirements including compensation/promotion, how success will be measured, actions to be taken for failing to perform, etc. When an individual is to be placed in a position—a skills gap analysis could be determined and a robust training plan created and executed within the first six months of the individual’s tenure with the company ... (Id. at SCA 043580.) On or about October 20, 2006, after visits to several SCA offices, Schanfield provided Tsukada an “Updated Status Report Memo” in which he elaborated on risks identified during his tours of SCA offices. (Id. Ex. 29; Paice Reply Aff n ¶ 8.) Schanfield highlighted a number of issues related to the Rotational system and the relations between Rotational and National employees, including the following points: • “Communication Issues—As discussed, all communications here in the U.S. should be in English. The risks by communicating in Japanese are that we will not receive benefit of input from the rest of the workforce. Secondly, the effort needed to translate such documents eats into our bottom line as time needed to be expended for such matters. Thirdly, and most importantly, this contributes to many morale issues and will cause us to lose national staff.” (Thompson Deck Ex. 29 at SCA 028466); • “National Staff—There are no Americans in the group at a Management level. I think that the group needs a high level American to work along side Hirai-san to both bring rigor to the business planning process and as well bring concrete deals to the table.” (Id. at SCA 028472); • “Anti-Discrimination—there is a clearly noted imbalance between rotationals and national staff. I am not exactly sure of the numbers but I think it has improved slightly from when I started three months ago. It needs to improve much further. We would have a difficult time in the event of an affirmative action audit. In addition we should communicate again especially to the rotationals to not ask questions or make hiring decisions based on an individual’s age.” {Id. at SCA 028475); • “Cost of Rotationals—it is recognized that there is a significant cost associated with the rotational system. The question is whether any changes need to be made to mitigate the risks—(he. receiving less value than we should be getting.) I have discussed job descriptions, goals and objectives, training sessions below and in addition the way rotational assignments are given out vis a vis the opportunity of a national person filling the role. This is quite critical going forward. As well, I think that we should think carefully through the rotational program and train as well successors to key rotationals that could be replaced in cases through a highly qualified national person. This will impact morale positively and save on bottom line costs.” {Id.); • “Morale—As discussed throughout this document, the morale in this company varies from very good to not so good. We have many examples from through out the company. The question is what we do about the ‘not so good’. Training as discussed below is key. More English spoken and written documents in English are key, more lunches between Japanese and non-Japanese is key. We have one common business objectives goal and the key is to bring both cultures together in harmony. Making Americans more sensitive to Japanese culture is key-read Nikkei weekly, join Japan Society, read Japanese culture books are all critical from the perspective of the Americans. Creating a career path for nationals to replace some rotationals is key. Setting up goals and objectives for all with incentive based compensation is key.” {Id. at SCA 028476.) On or about November 10, 2006, Schanfield provided Matsumoto with an update of his activities since his hiring. (Thompson Decl. Ex. 11.) In that document Schanfield noted that communication was “quite dismal,” partly because “so many documents are in Japanese.” (Id. at SCA 029537.) He also reported that the Rotational system had a negative impact on morale of National staff, and it was commented during his staff interviews that National staff felt like “second class citizens.” (Id.) He noted, however, that with respect to morale, “many solid recommendations in place and are being done to remedy these problems.” (Id.) Schanfield also highlighted the “imbalance between rotationals and national staff,” noting that it “needs to be fixed for various reasons including morale, inability to withstand an external agency audit and inability to adequately execute the work.” (Id. at SCA 029539.) On December 27, 2006, Schanfield sent another update e-mail to, inter alia, Matsumoto and Tsukada, in which he reported, • “Code of Corporate Conduct—Although the code of conduct has been prepared, it has not yet been issued and as such—we can say that there is no code. I think that this is particularly important. It is one of the essential ingredients of the control environment. To date, we have noted two individuals for sexual harassment, indications of age discrimination (based on my observations in Detroit and also based on conversations with our Head of HR), an apparent absence of women in management positions, an imbalance of rotationals to Americans, a lawsuit filed against us by former GC.... ” (Thompson Decl. Ex. 42 at SCA 031000.) As to the reported incident of sexual harassment by Rotational employees, Defendants contend that SCA responded properly to the incident, writing the employees up and sending them to sexual harassment training. (Defs. Rule 56.1 CntrStmt. ¶ 12; Schanfield Aff. ¶ 33.) In a November 15, 2006 e-mail to Matsumoto, Schanfield appeared to agree with Defendants assessment: “Glad we got the sexual harassment issue resolved.” On November 29, 2006, Schanfield wrote another email to, inter alia, Matsumoto, Tsukada and Paice, stating, Today we resolved this harassment issue—this issue did not make us any money but in 18 months time when we have a most successful company here, you will look back and see this event— right here and now—as a defining moment for us. Frankly, I was not so optimistic that we would get this resolved and since this matter is one of the most sensitive types of issues, this was a really good thing and will send proper messages throughout the company. This is precisely what good companies do. (DeBaun Aff n Ex. 14 at SCA 044307.) At his deposition, Schanfield admitted to writing the above e-mails, but testified that he really was not pleased with the way the situation was handled because he believed the individuals involved in the sexual harassment should have been terminated, instead of getting what he termed “a slap on the wrist.” (Schanfield Dep. Tr. at 203:19-205:12.) In regards to the former general counsel’s lawsuit, in November 2006, Richard Brendzel sued SCA and individual defendants, including Matsumoto and Tsukada alleging, inter alia, discrimination and retaliation on the basis of race, national origin and age. (Ronan Decl. Ex. N.) This lawsuit was settled by SCA prior to Schanfield’s filing of this lawsuit. (Paice Reply Aff. ¶ 10.) Complaints about Compensation and Promotion During his tenure at SCA, Schanfield also made comments about what he perceived as under-compensation of certain employees. In his December 27, 2006 email, plaintiff reported that the compensation and incentive systems were “no good” and that SCA needed to pay at market or above to attract top professionals, noting that “For example Paulo is being paid well below the market ...” (Thompson Decl. Ex. 42 at SCA 031001.) Paulo appears to be a National employee. Schanfield also believes that SCA’s promotional policies favored Rotational staff such that they had more favorable job status than National staff. Schanfield, as noted previously, advocated for the placement of more National employees in senior positions at SCA. For instance, he made it known that he thought Paice should be chief legal officer, and not have to answer to Rotational staff. (Schanfield Dep. Tr. at 363:10-365:16.) Schanfield believed it was unfair that Rotational employees possessed higher titles—and he believed higher compensation—when National employees did “90 percent” of the work in the legal department. (Id. at 364:15-21.) Defendants contend that management became concerned that it was an abuse of plaintiff’s position for him to insert himself into promotion and compensation decisions for employees who he favored, but who did not report to him. (Defs. Rule 56.1 CntrStmt. ¶ 13.) SCA Reaction to Schanfield’s Reporting According to plaintiff, Matsumoto was displeased by his risk assessment reports and told plaintiff to stop identifying discriminatory risks created by the Rotational model. (Schanfield Aff. ¶ 31.) At his deposition Schanfield testified, When I started finding issues of discrimination going on in the company, and these issues were not being addressed by the chief legal officer and the head of HR I kept on insisting to the CEO [Matsumoto] as professionally as I could, We need to get these issues resolved, okay, ‘we’ being you, and simultaneously I’ll—I’ll be able to execute internal audit projects. But without getting these issues resolved nothing else will make a difference here. (Schanfield Dep. Tr. at 89:17-90:2.) When Schanfield continued to identify risks related to what he terms discrimination and the Rotational system, Schanfield alleges that Matsumoto “yelled” at and “berated” him. (Id. at 366:24-367:3.) Schanfield contends that this treatment was in contrast to the way Matsumoto treated Japanese/Asian employees, which was with civility and respect. (Schanfield Aff. ¶ 35.) Schanfield asserts that Matsumoto also began taking proactive steps to undermine plaintiffs work performance. Schanfield claims in his motion papers that in January 2007 Matsumoto held a secret meeting with Deloitte & Touche (“Deloitte”), SCA’s outside accountants, concerning Schanfield’s audit methodology. (Schanfield Dep. Tr. at 244:3-6.) Schanfield contends that he was not invited to this meeting where his work was discussed, but other Rotational employees—some of lower rank than Schanfield—were included. (Id. at 244:11-17.) However, in response to a late December 2006 e-mail from Deloitte employee Marshall Schlimer about the meeting, Schanfield wrote, “I am aware that you are meeting with [Matsumoto] as I have been insisting that they meet with an external provider.” (Id. at 549:15-550:9.) Schanfield admitted at his deposition that it was “possible” that it was in fact his idea for the meeting to occur. (Id. at 550:17-19.) Schanfield also cites to an e-mail written by Rotational employee Morita, which references a video conference Rotational staff attended with the Sojitz Tokyo Audit Department, which Schanfield apparently did not attend. (Thompson Opp’n Decl. Ex. 46.) At the end of Morita’s e-mail, Morita offers to debrief Schanfield on what went on at the meeting, writing, “I would like to discuss with you also based on what we discussed with the Tokyo Audit Dept.” (Id. at SCA 018931.) By e-mail dated March 27, 2007 Yoshiki Manabe wrote to Deloitte employee Schlimer that “Matsumoti-san [sic] would like to have your comments on the attached risk assessment done by Arnold.” (Ronan Decl. Ex. N.) The first line of the e-mail reads, “Please note that this communication is confidential and not to be disclosed to Arnold.” (Id.) (emphasis in original.) Schanfield contends that Matsumoto and Tsukada also failed to support him in the creation of an “Internal Audit Charter” (id. at 86:22-88:14); Matsumoto failed to provide him with the resources necessary to complete his audit; Matsumoto and Tsukada continually put off Schanfield’s inquiries about hiring additional audit staff or outsourcing some of the audit work, and stated that they did not want to discuss resources until after the risk assessment was complete (id. at 367:23-368:19); Rotational employees failed to provide Schanfield with timely English translations of key documents written in Japanese (id. at 89:12-13; 159:5-13); and Matsumoto failed to give authorization for risk assessments and audits to proceed (PL Rule 56.1 CntrStmt. ¶ 38). Defendants disavow Schanfield’s accusations and provide a contrasting version of events. First, Defendants assert that Matsumoto’s dissatisfaction with Schanfield’s work had nothing to do with Schanfield’s reporting of discrimination, but was the result of the over generality and lack of focus in Schanfield’s work. At his deposition, Matsumoto testified that Schanfield’s risk assessments were “too general, and so I had some doubts as to his thinking on the over all audit ... There are many areas to be covered, but there was very little portions that referred to specific items.” (Matsumoto Dep. Tr. at 188:16-17; 22-24.) Plaintiff denies that Matsumoto ever told him that his work was too general, and asserts that the only specific instructions Matsumoto gave were that plaintiff should stay out of human resource and compliance areas. (PL Rule 56.1 CntrStmt. ¶ 34.) Defendants also point out that there were efforts made by upper management to integrate Schanfield into SCA. Immediately following Schanfield’s arrival at the company, Tsukada sent an e-mail to the heads of all SCA departments, explaining plaintiffs role as CIA and instructing everyone to cooperate with requests for information. (Allen Aff n Ex. 15.) Meetings were also organized for Schanfield to meet with SCA management teams. (Id. Ex. 16.) In a December 20, 2006 e-mail, Matsumoto asked Schanfield for a “prioritized list” of documents Schanfield needed translated. (Id. Ex. 43.) Defendants contend that despite good-faith efforts to help Schanfield assimilate, Schanfield was “too inflexible” in his demands for information. (Defs. Rule 56.1 Stmt. ¶ 50.) Defendants also assert that it was plaintiff—not them—who bears blame for the failure to hire auditing staff, because in or around November 2006, Schanfield ceased all recruiting activities. (Schanfield Dep. Tr. at 369:17-21.) Defendants claim that Schanfield stopped recruiting as a way to pressure upper management to sign off on his Internal Audit Charter. According to Schanfield, “The only reason I stopped recruiting was because I realized by that date that the entire company environment was discriminatory in nature and it would be impossible for me to attract and keep high qualified professionals in the company....” (Id. at 370:4-9.) Defendants also contend that Schanfield was ineffective because he had a “verbose and rambling communication style,” and that he was encouraged by senior management to adopt a more focused speaking style, to make his reports more succinct and to be more courteous in his e-mails. (Ferraro Dep. Tr. at 251-56; Paice Dep. Tr. at 97-98; Tsukada Dep. Tr. at 153-58.) Matsumoto also complained that Schanfield was quick to point to an impropriety without sufficient investigation of the circumstances. (Matsumoto Dep. Tr. at 166— 72.) The March 2007 Risk Report On or about March 30, 2007, Schanfield produced his final risk assessment report, and distributed it to SCA. (Thompson Decl. Ex. 58.) The document was 90 pages and identified 485 risks that plaintiff estimated would take 735 days to audit. In a March 30, 2007 e-mail announcing the distribution of the document, Schanfield listed a summary of the “top 43” risks facing SCA. On this list were, inter alia, the following risks: • “Human Resource risk exists because the communication process here is quite poor;” • “Human Resources risk exists because job descriptions for Japanese do not exist in English and are MOU, ones in English contain redundant information, salary bands are confusing, performance appraisal process is weak, goal setting is quite weak;” • “Governance risk exists because although a Chief Internal Auditor is in place, a department has not been established and an internal audit charger does not exist;” • “Strategic risk exists because the business plans are in Japanese and are not robust documents;” • “Governance risk exists because our parent is supposed to be monitoring the risks of its subsidiaries in the United States;” • “Governance risk exists because there is an imbalance of rotationals to Americans here;” • “Governance risk exists because we operate completely as a Japanese company. No independent audit committee exists.” (Id. at SCA 034276-77.) According to Defendants, Sehanfield’s risk assessment was overly general, too long, not focused, and excessively negative. (Defs. Rule 56.1 Stmt. ¶¶ 57-60.) On April 16, 2007, Matsumoto e-mailed Schanfield, I reviewed your risk element report and judged that it can not be utilized as a base for determining an order of priority to conduct the operating program. As I already instructed, please give me a list and rational analysis for top five operations among business departments, subsidiaries business operations, and branch office operations that have highest priority for conducting the operating audit program. (Allen Aff n Ex. 55 at SCA 025207.) The same day, Paice wrote in an e-mail to Rotational employee, Tatsuya Morita, “I feel bad for Arnold [Schanfield] because he wants to do the right thing but Matsumoto-san has no understanding of internal audit or the methodology behind it. That being said, Arnold is in the position he is in because he’s failed to sell his function.” (Id. Ex. 57 at SCA 046542.) Schanfield responded to Matsumoto’s request for a list of the top priority audits and the time he estimated it would take to complete them. He emailed: • “Sojitz Motors—compliance, financial, operational 6-8 weeks;” • “Turboflo—everything—4-6 weeks;” • “Detroit branch—compliance review of code and accounting policies only-—4 weeks;” • “Houston—same as Detroit—4 weeks;” • “Portland—same as Detroit and Houston but also some import/export.” (Id. Ex. 58 at SCA 040240-41.) Matsumoto forwarded Schanfield’s e-mail to Rotational employee Yoshiki Manabe and questioned whether the audits should take as long as Schanfield anticipated. (Id. Ex. 59 at SCA 056310.) Defendants also complain that the report did not sufficiently take into account auditing standards in Japan, a deficiency they claimed undermined its usefulness. Plaintiff counters that he utilized the well accepted, so-called “COSO” framework, but that he was precluded from educating Rotational managers about his approach. (Schanfield Aff. ¶ 14.) Schanfield also asserts that his risk assessment was “typical of most internal audit departments in the United States” and was done with regard to “J-Sox,” the compliance rules applicable to Japanese companies, but that it was impossible to do an audit in the United States by the Japanese methodology because there are “fundamental” differences in the approaches. (Id. ¶¶ 14-15; Pl. Rule 56.1 CntrStmt. ¶ 57.) Schanfield contends that he attempted to explain the differences to Rotational management a number of times. (Schanfield Aff. ¶ 15.) The April 23, 2007 Meeting At an April 23, 2007 meeting, Schanfield met with Matsumoto to discuss his work product. The discussion became heated. At one point, Matsumoto told Schanfield, “This is a Japanese Company and we will do as we please.” (Pl. Rule 56.1 CntrStmt. ¶ 94.) Schanfield understood this statement to be in response to Schanfield’s reports of discrimination against National employees. (Id.) Schanfield told Matsumoto that he would no longer meet with him unless a third party was present. (Defs. Rule 56.1 Stmt. ¶ 65.) Plaintiff contends that Matsumoto was retaliating against him for the contents of his report and that Schanfield wanted to protect himself. (Pl. Rule 56.1 CntrStmt. ¶ 65.) In a May 2, 2007 e-mail to an accounting colleague not employed by or associated with SCA, Schanfield reported that he had “a big fight with CEO—I suggested that he should resign and go home!! Now we are not on speaking terms ... I have a great product that unfortunately our CEO understands less than 1% of.” (Allen Aff n. Ex. 60 at SCA 014352.) Matsumoto testified that “because [Schanfield] said he could no longer communicate unless a third party was present, then I felt that we could not create an environment in which the normal business could be carried out.” (Matsumoto Dep. Tr. at 213:4-8.) Schanfield’s Termination On May 21, 2007, Schanfield was notified that he was fired effective May 31, 2007. (Defs. Rule 56.1 Stmt. ¶ 67.) Matsumoto testified that Schanfield was fired because “he did not meet expectations,” elaborating that, Well, as I have been saying, there were many factors. But the results of the risk assessment itself were not sufficient, and were not as I had expected. And I thought that the risk assessment was going to be very important. And based on the specific risks identified and submitted from the risk assessment, we would decide on the priority of the items to audit. However, the contents of the risk assessment were not directly—sufficiently linked to doing that .... the risk assessment that was submitted was too broad. And as I said before, some of the information that was included was mistaken. And the input of information, I could see on certain cases, was insufficient. And, in many cases, the problems were not properly defined. (Matsumoto Dep. Tr. at 209:6-17; 210:4-10.) Plaintiff contends that, in addition to Matsumoto, Tsukada—whose United States secondment ended two months before in March 2007—also participated in the decision to terminate him. (Defs. Rule 56.1 Stmt. ¶ 69; PL Rule 56.1 CntrStmt. ¶ 69; Allen Aff n Ex. 63.) In response to an April 24, 2007 e-mail from Matsumoto stating, “I think a judgment needs to be made whether it is a wise decision to use him [Schanfield], in light of the future smooth execution of internal auditing,” Tsukada provided his take on Schanfield’s work at SCA. (Thompson Opp’n Deck Ex. 52.) At his deposition, however, Tsukada testified that he did not participate in anyway in the decision to terminate Schanfield. (Tsukada Dep. Tr. at 187:23-188:2.) Schanfield was replaced as SCA’s CIA by Myriam Miguel, a “white female Argentinean,” who was hired in the United States as a National employee. (Defs. Rule 56.1 Stmt. ¶ 71; Paice Aff. ¶ 25.) On August 15, 2007, SCA received a letter from plaintiffs counsel alleging discrimination and threatening litigation. (Defs. Rule 56.1 Stmt. ¶ 75.) B. Schanfield’s Retention and Dissemination of Confidential SCA Documents In response to the August 15, 2007 letter, SCA began an internal investigation, which led to its discovery that without SCA’s knowledge or permission Schanfield had sent hundreds of confidential or privileged SCA documents from his SCA computer to third parties unassociated with SCA or SCA employees who were not authorized to see such documents. (Defs. Rule 56.1 Stmt. ¶ 76.) Among the documents plaintiff sent to outside third parties were risk assessment documents that listed sensitive information involving legal and business risks to SCA. For example, on April 2, 2007, Schanfield forwarded the e-mail in which he identified the “top 43 risks facing SCA” to Nancy Bakeman—a person who is not and has never been affiliated with SCA. (Paice Aff. Ex. C.) Schanfield does not deny sending risk assessment documents and information to third-party strangers, but contends that he sent e-mails in SCA’s best interests “so that he could retain [the third parties] as audit professionals, and in order to share ideas and seek feedback to generate a high quality work product.” (PL Rule 56.1 CntrStmt. ¶ 76.) Upon discovery of Schanfield’s e-mails, SCA became very concerned about the dissemination of confidential proprietary information, and believed Schanfield to be in breach of the obligations he assumed when he counter-signed his offer letter in 2006. Sidley Austin LLP (“Sidley”), Defendants’ outside counsel, wrote plaintiffs counsel on August 23, 2007, requesting that plaintiff cease and desist from disclosing and return to SCA all of its proprietary documents currently in plaintiffs possession. (Paice Aff. ¶ 18; Ex. E.) Thereafter, Defendants’ counsel and plaintiffs counsel engaged in unsuccessful settlement discussions. After those discussions proved unfruitful, Sidley made additional requests for the return of the documents in November 2007. (Paice Aff. ¶ 20; Ex. G.) On December 5, 2007, plaintiffs counsel responded that the documents would not be returned, and that “Mr. Schanfield is fully within his rights to retain copies of information required for the prosecution of his employment discrimination and retaliation action against Sojitz.” (Id. Ex. H.) On January 2, 2008, SCA filed counterclaims against plaintiff alleging that his actions with confidential SCA documents breached the contract formed by the Offer Letter he signed in June 2006, breached his duty of loyalty to SCA, and amounted to a misappropriation of trade secrets. Schanfield maintains that he produced all non-privileged documents through discovery in this action, and that SCA’s counterclaims are asserted in retaliation for Schanfield’s filing this discrimination lawsuit. (Pl. Rule 56.1 CntrStmt. ¶ 88.) II. Facts Relating to Plaintiffs Class Allegations In his complaint, Schanfield purports to bring a class action on behalf of all “non-Japanese/Non-Asian” current and former management-level employees of SCA who worked at SCA at any time between October 1, 2004 and the present. Schanfield alleges that “non-Japanese/non-Asian employees” are treated less favorably in regard to the terms of their employment because of their national origin or race. He asserts discrimination and retaliation claims under Title VII and Section 1981. The parties cannot agree on the number of people who would be in the proposed class. Schanfield alleges that it is comprised of 46 non-Japanese current and former management-level employees. Defendants correctly point out that this includes Asian-Americans who are not of Japanese descent, and contend that no race discrimination class can be certified (Asian being a race in Defendants’ argument). Were persons of Asian descent to be eliminated from the proposed class it would consist of 37 persons. A. Schanfield’s Class Claim for Discrimination Schanfield’s allegations of class-wide discrimination are premised on the alleged “imbalances” inherent in the Rotational system. As discussed above, there are both National employees and Rotational employees working at SCA. All Rotational employees are employed by SCA’s parent company Sojitz. (Abe Aff. ¶¶ 2-3.) During the period of their secondment, which is typically three to five years, Rotational employees are considered employees of SCA as well as Sojitz. The SCA Employee Handbook describes Rotational Employees as follows: Rotational Employees: Expatriate Employees possess dual employment status under the United States and International law and practice. Moreover, such expatriate employees, consistent with the practice used by American companies and companies of other developed countries, are paid on a separate basis solely because of their expatriate status. Additionally, as employees of both employees of Sojitz Corporation of America and as on loan employees from their respective home offices, certain SCA policies may not apply, in part or in total, to our expatriate workforce during their temporary foreign assignment at Sojitz Corporation of America. (Thompson Class Cert. Decl. Ex. G at SCA 000030.) The Defendants’ stated purpose for using the Rotational system is so that Sojitz employees in Japan can “learn about the Parent’s overseas operations, educate subsidiaries about the Parent’s business policies and methods, report on activities of the subsidiary to the Parent’s management, and facilitate Japanese-language communications with the Parent and customers.” (Paice Aff. ¶ 5.) All Rotational employees are Japanese; no non-Japanese/non-Asian person has ever been a Rotational employee. (Matsumoto Dep. Tr. at 57:16-58.) During the relevant time period there were, at all times, approximately 40 Rotational employees working at SCA. (Id. at 23:17-22.) National employees, by contrast, are individuals who live permanently in the United States. They are hired by SCA in accordance with SCA’s hiring policies, and are employees only of SCA, a New York corporation. (Defs. Rule 56.1 Stmt. ¶ 10.) National employees are “predominantly of non-Japanese/non-Asian” descent. However, during the class period, there have been National employees whose ancestry was either Asian-Ameriean (race) or Japanese-American (national origin). As of April 2008, over 30% of National managers were Asian-Ameriean, and 25% of National managers were Japanese-American. Schanfield alleges that the “rotational system is the equivalent of a corporate caste system in which the rotational staff—which is exclusively Japanese/Asian—is given preferential treatment over national staff—which is predominantly non-Japanese/non-Asian.” (Pl. Class Cert. Mem. at 2.) He asserts that National employees were treated less favorably in a number of ways: 1. Exclusion from Top Management Positions (“Job Status”) Schanfield alleges that National employees are excluded from the top management positions. He cites the fact that since 2004, ninety to ninety-five percent of the General (i.e. top) Manager positions have been filled by Rotational employees, (Ferrraro Dep. Tr. at 26:8-28:22.) In 2004, 2005 and 2006, there was only one National employee who held the title of General Manager. (Id.; Thompson Class Cert. Decl. Ex. J.) In 2007 and 2008 there were only two, one of whom was Schanfield. (Id.) The positions of CEO, CFO and COO have never been held by a Rotational employee. Hereafter, I will refer to this as the “job status” claim. The following chart, reproduced from Dr. Killingsworth’s March 2, 2009 declaration, provides the breakdown of managers at SCA as of April 2008: Group_Total_# Asian_% Asian_# Japanese_% Japanese All Managers_65_45_69.2%_42_64.6% Rotational Managers_34_34_100%_34_100% National Managers_31_U._ 35.5%_8_25.8% 2. Different Rules Under the Overseas Regulations, Rotational employees are subject to different disciplinary rules that are inapplicable to National employees. (Thompson Class Cert. Decl. Ex. D; Abe Dep. Tr. at 38:8-40:3.) Rotational and National employees are also subject to different performance review evaluation standards and process. (Id. at 133:23-136:20.) Schanfield contends that, although Rotational staff have the ability to subject National staff to discipline, the reverse is not true. (Schanfield Class Cert. Aff. ¶ 8.) SCA Human Resources head Ferraro testified that, although he was not involved with disciplinary actions, he did not believe that National staff could discipline Rotational staff. He could not point to any National staff who had the authority to discipline Rotational staff. (Ferraro Dep. Tr. at 335:10-336:20.) Rotational employees are evaluated only by other Rotational employees. (Abe Dep. Tr. at 137:6-24.) Abe testified that this was so because “the rotational staff working at—working at SCA are Sojitz employees, but the national staff employed at SCA are not employees of Sojitz; and, therefore, the employer is completely different and so the system is different.” (Id. at 146:5-11.) Abe also testified that “all of the authority regarding personnel at SCA would be held by the head office [in Japan].” (Id. at 149:20-24.) 3. Discrimination in Pay Schanfield’s principal class claim is that Rotational employees are paid more than similarly situated National employees. The salaries of Rotational employees are set by Sojitz—not by SCA—and are based on the employee’s status at Sojitz. Rotational employee pay may be a function of negotiations with Japanese labor unions. (Abe Aff. ¶ 3.) Rotational compensation includes not just base salary but also allowances related to Rotational employees’ overseas assignment, such as cost of living adjustments and housing reimbursement. (Id. ¶ 4.) Rotational employees are eligible for bonuses under Sojitz’s bonus program, as administered in Japan; they do not participate in SCA’s bonus program. (Id. ¶ 5.) National employees are compensated by SCA and participate in SCA’s bonus program. They do not receive housing allowances or other similar payments. Expert Reports Both sides have submitted expert reports on the issue of pay discrimination at SCA. Plaintiffs expert is Mark R. Killings-worth. Dr. Killingsworth has a doctorate degree in economics from the University of Oxford, and is a professor of economics at Rutgers University. (Thompson Decl. Ex. 18.) Dr. Killingsworth has previously been associated with Princeton, Vanderbilt and Columbia Universities. (Id.) He also has significant publishing experience and has testified before government agencies. (Id.) Defendants retained Malcolm S. Cohen as their expert. Dr. Cohen has a doctorate in economics from MIT and is the president of the Employment Research Corporation in Ann Arbor, Michigan. (Selzer Affn Ex. E.) Cohen previously served as Director of the Institute of Labor and Industrial Relations at the University of Michigan from 1980 to 1993. (Id.) He has written over 50 articles and books on topics related to labor market issues. Dr. Cohen has testified or been a consultant in over 1,000 cases. (Id.) The record contains several expert reports. Dr. Killingsworth submitted an initial report, dated September 30, 2008. During October and November 2008, the parties went back and forth over problems Dr. Killingsworth had identified in the data provided by SCA and plaintiffs counsel requested clarification and supplemental productions from Sojitz. (Ronan Decl. ¶¶ 5-8.) In October 2008, Dr. Cohen submitted a report commenting on Dr. Killingsworth’s initial report on behalf of Defendants. (DeBaun Affn Ex. 3.) On November 17, 2008, Dr. Killings-worth submitted a second report, which contained a regression analysis that was purportedly made possible by a clarification contained in a letter from defense counsel dated October 17, 2008. Defendants moved in front of Judge Francis to exclude Dr. Killingsworth’s second report as untimely. Judge Francis ruled that Defendants could submit a rebuttal report from their expert, Dr. Cohen. (Ronan Decl. ¶ 11.) Dr. Cohen did so on November 20, 2008. (Id.; DeBaun Affn Ex. 5.) Both experts were deposed on November 24, 2008. (Ronan Decl. ¶ 12.) Both experts submitted declarations in connection with the instant motions. The experts—not surprisingly—reach radically different conclusions about pay disparities, but that is entirely a function of who each expert includes in the “similarly situated employee” group. Dr. Killingsworth includes both National and Rotational employees in his calculations, because both types of employees are working at SCA together. He also includes as “salary” the allowances paid to Rotational employees related to their expatriate status. Dr. Cohen, however, posits that it is incorrect to compare Rotational employees to National employees because they have a different employer; he also believes expatriate allowances should be excluded from any analysis of “comparative” compensation as between Rotational and National employees. Plaintiffs Expert’s Findings In Dr. Killingsworth’s first report, he compared the salaries of Rotational managers to National managers. He concluded that, as of April 2008, the average compensation for Rotational management-level employees was $151,215, while the average compensation for National management-level employees was $120,431. (Thompson Class Cert. Decl. Ex. M.) Accordingly, Killingsworth concluded that the average Rotational manager’s compensation exceeded that of National managers by $30,783 or approximately 25%. (Id.) This difference was found by Killingsworth to be statistically significant. (Id.) To measure compensation of Rotational managers Killingsworth used “base salary” plus the overseas allowances, which he obtained from the SCA spreadsheet entitled “Sojitz Net Salary.” (Id. at 1 n. 3.) To measure compensation of National employees, Killingsworth used “base pay” as given in a spreadsheet entitled the “Employease Database.” (Id.) In his first report, Dr. Killingsworth did not analyze whether Japanese-American or Asian-American National employees were treated more favorably than non-Japanese-American or non-Asian-Ameriean employees. In a second report, dated November 17, 2008, Dr. Killingsworth performed a regression analysis seeking to determine (1) whether there is a pay gap (with “pay” defined to include overseas allowances for Rotational employees, but excluding bonuses) between SCA Rotational managers and SCA National managers; and (2) whether there is a pay gap between SCA Japanese managers and SCA non-Japanese managers, considering both National and Rotational employees. (Thompson Decl. Ex. 63.) In his analysis, Killings-worth considered two groups: (1) the group of all managers at SCA; and (2) the group of SCA managers who were hired after 2003 (i.e. “recent hires”). (Id.) The results of Killingsworth’s analysis were presented in two tables. Table 1 compared pay of Rotational versus National managers. • Rotational managers made an average of 78.2% more than National managers when their pay (including expatriate allowances) was compared; of recent hires, Rotational managers made an average of 73% more than National managers; • When Rotational managers were compared to National managers who are the same in terms of (i) years of service; (ii) office location (New York); and (iii) division of the company, they make an average of 77.6% more than National managers; of recent hires, Rotational managers made 78.4% more than National managers; • When Rotational managers are compared to National managers who are the same in terms of (i) years of service; (ii) office location (New York); (iii) division of the company; and (iv) occupational category, they made an average of 59.8% more than National managers; of recent hires, Rotational managers made an average of 61.2% more than National managers. In Table 2, Killingsworth compared the gap in pay between Japanese and Non-Japanese managers at SCA. As best as the Court can decipher, “Japanese” for these purposes means Japanese by citizenship; Japanese-American National employees are considered “Non-Japanese” in this analysis. Killingworth found: • Japanese managers made an average of 57.8% more in base amount than Non-Japanese managers at SCA; considering only recent hires, the difference is 67.2% (Killingsworth Opp’n Decl.); • When Japanese managers are compared to non-Japanese managers who are the same in terms of (i) years of service; (ii) office location (New York); and (iii) division of the company, they made an average of 61.6% more than non-Japanese managers; of recent hires, the difference is 70.6%; • When Japanese managers are compared to non-Japanese managers who are the same in terms of (i) years of service; (ii) office location (New York); (iii) division of the company; and (iv) occupational category, they make an average of 44.8% more than non-Japanese managers; of recent hires, the difference is 52.6%. (Id.) In his March 2, 2009 declaration submitted in support of plaintiffs motion for summary judgment, Dr. Killingsworth performed the same analysis as in his November 17, 2008 report, comparing Asian versus Non-Asian managers. Again, Dr. Killingsworth included in this pool both Rotational and National managers, and he included the overseas allowances in Rotational pay. • Asian managers made an average of 56.0% more in base amount than non-Asian managers at Sojitz; of recent hires, the difference is 70.4% (Killings-worth Opp’n Decl. Table 4); • When Asian managers are compared to non-Asian managers who are the same in terms of (i) years of service; (ii) office location (New York); and (iii) division of the company, they made an average of 57.1% more than non-Asian managers; of recent hires, the difference is 72.0%; • When Asian managers are compared to non-Asian managers who are the same in terms of (i) years of service; (ii) office location (New York); (iii) division of the company; and (iv) occupational category, they made an average of 42.1% more than non-Japanese managers; of recent hires, the difference is 56.2%. (Id.) All of the differences were above the threshold for statistical significance. (Thompson Decl. Ex. 63.) In none of his analyses does Dr. Killingworth back out the overseas/expatriate allowances to see whether the effect he observed holds if that money is not deemed part of the employee’s “base pay.” Defendants’ Expert’s Findings In his report of October 15, 2008, Dr. Cohen analyzed Killingsworth’s first report, and made several counter-arguments: • Since Rotational managers are employees of Sojitz—not SCA—and are paid by 5 Sojitz—not SCA—the comparison between Rotational and National managers’ pay is not meaningful; • The data set analyzed by Killings-worth did not encompass July 10, 2006 to May 31, 2007, the time period when Killingsworth was employed by SCA; • Killingsworth did not take into account the t ax consequences of living abroad, the monetary impact of living abroad, including cost of living differences, for Rotational employees; • Killingsworth included in the pay for Rotational managers the amount these employees received for housing, car, transportation, and overseas assignment allowances, which are provided to Rotational managers for living and working in the United States. Cohen asserts that it would be more meaningful to compare compensation excluding these amounts; and • Dr. Cohen could not replicate Killings-worth’s findings (Dr. Cohen withdrew this criticism after he was provided with data from Killingsworth). (First Cohen Report, Allen AfFn Ex. 11.) Dr. Cohen compared the average pay for Rotational managers, excluding the amounts for overseas assignment allowances. Dr. Cohen found that the average pay in April 2008 for Rotational managers was $97,989, or $115,134 if the CEO and CFO were included. (Id.) The average pay for National managers was $120,431, which is the very same number Dr. Killingworth used. Thus, under Cohen’s analysis, the pay for Rotationals that is not attributable to their overseas allowances is actually lower than Nationals. To arrive at these figures, Dr. Cohen relied on data from the “Sojitz Net Salary” database, using the column “Japanese Base Salary,” which he adjusted by a cost of living factor and the exchange rate to determine salary for Rotational employees. Dr. Cohen used data from the Employease dataset and the “National Management Employees” dataset. (Id.) Dr. Cohen also compared the compensation of National managers on an Asian versus non-Asian and Japanese versus Non-Japanese basis, to see if there was any disparity among the SCA National managers (exclusive of Rotational managers) that could be attributed to race or national origin. (Id. at n. 2.) Dr. Cohen relied on the data from the Employease dataset and the “National Management Employees” dataset. (Id.) Cohen found that non-Japanese/non-Asian managers were paid slightly more than Japanese/Asian managers, although the differences were not statistically significant (defined as 0.05%). (Id.) Dr. Cohen’s second report, dated November 20, 2008, responded to Dr. Killingsworth’s second report. (DeBaun Aff. Ex. 5.) According to Dr. Cohen, his criticisms of Dr. Killingsworth’s first report— except for his assertion that he could not replicate Dr. Killingsworth’s results—applied with equal force to Dr. Killings-worth’s second report. (IcL) Dr. Cohen reiterated that Dr. Killingsworth’s decision to include Rotational employees in his “Japanese” and “Asian” manager groups rendered his results meaningless because Rotational employees are employees of— and have their compensation set by—the parent Sojitz, not SCA. (Id.) Dr. Cohen also criticized Dr. Killingsworth for including expatriate overseas allowances in the calculation of Rotational salaries, and he objected to Dr. Killingsworth’s “lump[ingj” of all management employees together because by doing so he includes the CEO and top employees who earn five to six times as much as what some Vice Presidents make. (Id.) Schanfield alleges that SCA was aware of the “inefficiency and detrimental effect of the Rotational system—because of the outside consultant’s Internal Audit Questionnaire, and because of Schanfield’s own reports—yet refused to take any action.” (Pl. Class Cert. Mem. at 3.) B. Schanfield’s Class Claim for Retaliation In his complaint, Schanfield pleads a class claim for retaliation under Title VII and Section 1981. Schanfield’s memorandum of law in support of his motion for class certification makes no mention of any such claim, however, and he offers no evidence of how many persons would be members of such a class. Neither does he include a single anecdote from any other employee about any retaliation taken against him/her. The Court deems this aspect of the action abandoned. DISCUSSION I. Summary Judgment Standard A party is entitled to summary judgment when there is no “genuine issue of material fact” and the undisputed facts warrant judgment for the moving party as a matter of law. Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). In addressing a motion for summary judgment, “the court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in [its] favor.” Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). Whether any disputed issue of fact exists is for the Court to determine. Balderman v. U.S. Veterans Admin., 870 F.2d 57, 60 (2d Cir.1989). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once such a showing has been made, the non-moving party must present “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The party opposing summary judgment “may not rely on conclusory allegations or unsubstantiated speculation.” Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998). Moreover, not every disputed factual issue is material in light of the substantive law that governs the case. “Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment.” Anderson, 477 U.S. at 248, 106 S.Ct. 2505. Finally, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Industries Co., 475 U.S. at 586, 106 S.Ct. 1348. To withstand a summary judgment motion, sufficient evidence must exist upon which a reasonable jury could return a verdict for the nonmovant. Whether a reasonable jury could return a verdict for the non-moving plaintiff is determined in cases brought under the various antidiscrimination statutes by using the familiar three-step test announced by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 793, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). The plaintiff bears the initial burden of provin