DEY v. INNODATA, INC.

Not for Publication

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

ANINDO DEY,

Plaintiff,

Civil Action No.: 18-0978 (ES) (MAH)

v.

OPINION

INNODATA INC.,

Defendant.

SALAS, DISTRICT JUDGE

Plaintiff Anindo Dey sues his former employer, Innodata Inc., a digital services company,

under federal and state law for alleged discrimination he experienced because of his race and

national origin and for allegedly retaliating against him for reporting the discrimination. (D.E. No.

1 (“Complaint” or “Compl.”)). Before the Court are Defendant’s motion for summary judgment

(D.E. No. 104 (“SJ Motion”)), and a related motion by Plaintiff to strike certain evidence submitted

in support of the SJ Motion (D.E. No. 108 (“Motion to Strike”)). Having considered the parties’

submissions, the Court decides this matter without oral argument. Fed. R. Civ. Pro. 78(b); L. Civ.

R. 78.1(b). For the reasons set forth below, the Court GRANTS-IN-PART and DENIES-IN-PART

the SJ Motion. Because the Court need not resolve Plaintiff’s evidentiary challenges to decide the

SJ Motion, the Motion to Strike is denied without prejudice to Plaintiff’s right to oppose

introduction of the challenged evidence at a later stage of the litigation.

I. BACKGROUND1

Dey was an employee at Innodata from 2013 to 2016. (Def. Reply SUMF ¶ 2). In July

2013, Dey began working for Innodata Private Limited, Innodata’s subsidiary, as Vice President

of Business Development in Noida, India. (Id. ¶¶ 14–15). As Vice President of Business

Development Dey “was responsible for building sales in the U.S. for services that Innodata

provided such as digital content.” (Id. ¶ 16). Dey originated one client, Book Dogs Books, for

Innodata while in India, which generated approximately $500,000 in revenue in or around 2013.

(Id. ¶ 17). After some time in India, Dey requested a transfer to North America because he thought

relocating would help him generate new business. (Id. ¶ 19). In February 2016, Innodata

sponsored Dey’s relocation to the United States. (Id. ¶ 20). Innodata loaned Dey $6,250.00 to

assist with his move to the United States, and in exchange, Dey agreed to repay the loan with

interest at the rate of 3.5% per annum on the unpaid balance. (Id. ¶¶ 22–25; see also D.E. No.

104-4, Abuhoff Decl., Exhibit C (“Promissory Note”)). The Promissory Note was due and payable

in 48 equal installments of $135.00, payable twice monthly as an automatic salary reduction from

each period beginning March 2016. (Def. Reply SUMF ¶ 26). However, the Promissory Note

became immediately due and payable if Innodata no longer employed Plaintiff, for any reason,

whether voluntary or involuntary. (Id. ¶ 27).

Once in the United States, Dey worked in a new role as a Client Partner, working out of a

home office in Illinois while reporting to Innodata’s headquarters in Hackensack, New Jersey. (Id.

¶ 20). As a Client Partner, Dey’s job responsibilities included, inter alia, “orchestrating company

resources, in the response and delivery of Innodata services, to information services companies

1 The Court pulls the relevant background facts from the parties’ statements of material facts. (D.E. Nos. 104-

2 (“Def. SUMF”), 107-4 (“Pl. Resp. SUMF”), 107-5 (“Pl. Supp. SUMF”), 114 (“Def. Reply SUMF”) &114-1 (“Def.

Resp. SUMF”). The final submissions (Def. Reply SUMF & Def. Resp. SUMF) include all relevant statements and

responses from previous submissions. For ease of reference, the Court primarily cites to those all-inclusive documents.

and data-driven enterprises”; “[b]uilding, enhancing and executing long term client relationships

and communication at the C-level, with other key executives and key decision makers”;

“[q]ualify[ing] client specific opportunities and develop[ing] pipeline jointly with the Business

Units”; and “[h]elp[ing] to win new business with high level relationships, sales and negotiation

skills and client-oriented communications.” (Id. ¶ 31). In his role as Client Partner, Dey reported

to Lisa Indovino, a Senior Vice President of the company. (Id. ¶¶ 4 & 34).

Dey, who is of Asian ethnicity and Indian origin, claims that Indovino discriminated

against him because of his national origin, ethnicity, and race. (Compl. ¶¶ 16 & 41–56). Dey

states that Indovino’s discriminatory and harassing nature directed towards him included, inter

alia, criticism, a “hostile, degrading, derogatory, and intimidating” tone, “verbal berating,” and

“screaming at him” for most actions he took. (Pl. Supp. SUMF ¶¶ 17, 20 & 21).2 According to

Dey, Indovino’s criticism of him had “strong racist overtones.” (Id. ¶ 21). Dey also claims that

Indovino made derogatory comments related to ethnicity and national origin: she commented on

the inability of the Asian operations team to conduct business coherently, stated that she loathes

the fact that the delivery centers are in Asia and that this location was the core of the problem,

stated that she “can barely understand” what the offshore teams say on phone calls, and on one

occasion, as Dey was in the middle of an explanation, she complained that “this explanation is too

long and you Indians have no ability to speak in short sentences clearly.” (Id. ¶¶ 18, 19, 22 & 24).

According to Dey, Indovino’s hostile tone “was directed solely at Dey and people of his national

origin, race, and/or color.” (Id. ¶ 24).

2 Innodata lodged objections to these and numerous other facts in Dey’s supplemental statement of material

facts. (Def. Resp. SUMF). Innodata correctly points out that in granting Innodata leave to file for summary judgment,

the Court stated that the parties were bound by the statements of fact previously submitted to the Court in connection

with the request for leave to file. (D.E. No. 101). And Innodata also correctly points out that Dey’s supplemental

statement of facts is different from his previous submission. (Compare D.E. No. 100-2, with Pl. Supp. SUMF).

Nevertheless, because Innodata had the opportunity to respond to and dispute the revised supplemental facts, the Court

considers them.

On September 12, 2016, Dey emailed Innodata’s CEO, Jack Abuhoff, to complain about

the way Indovino was treating him. (Def. Reply SUMF ¶ 50). In response to Dey’s email, Abuhoff

retained Verita, LLC, an independent investigation company, to investigate Dey’s claims. (Id. ¶

56; Def. Resp. SUMF ¶ 26). While the investigation was ongoing, Abuhoff gave Dey the option

to be assigned to different responsibilities outside of Indovino’s domain and informed Dey that the

director of Human Resources would join calls between Dey and Indovino. (Def. Reply SUMF ¶¶

53 & 54). Dey opted to keep his current responsibilities, thus staying within Indovino’s domain.

(Id. ¶ 54).

Jacqueline Sacus conducted the investigation on behalf of Verita. (Id. ¶ 57). Sacus

interviewed six Innodata employees, including Dey and Indovino. (Id. ¶ 58). Sacus generated a

report based on the investigation. (Abuhoff Decl., Exhibit I (“Verita Report”)).3 After the

investigation, Innodata claims that Abuhoff spoke to Dey to discuss both the investigation and

Dey’s inadequate performance; Abuhoff also offered to provide Dey with coaching and requested

that Dey schedule a follow-up meeting. (Def. Reply SUMF ¶¶ 77–78).4 According to Abuhoff,

Dey never scheduled the follow-up meeting. (Id. ¶ 81). According to Dey, however, there was no

3 Innodata submitted the Verita Report as an attachment to Abuhoff’s declaration. Dey challenges the

admissibility of the Verita Report in his Motion to Strike, arguing that “Innodata cannot introduce evidence sufficient

to support a finding that Abuhoff has personal knowledge of the report or Sacus’s findings, as the findings are all

based on hearsay if used by Innodata for the truth of the matter asserted.” (Motion to Strike at 3). For purposes of

this Background section, the Court does not consider the Verita Report for the truth of the matter asserted therein, but

rather for the fact that these are the results and findings that were provided to Innodata. Moreover, throughout the

Opinion, the Court references certain arguments by Innodata which rely on the facts presented in the Verita Report.

(See, e.g., Section III.A.ii supra). The Court does so without resolving the parties’ dispute on this issue because even

if the Court could consider the facts asserted in the Verita Report, it would not change the outcome.

4 In support of these facts, Innodata cites to Exhibit J to the Abuhoff Declaration, which contains an email

from Abuhoff to Marcia Novero attaching “notes to file.” Abuhoff explains in the email that the attached notes are

from his conversation with Dey on Friday, November 4, 2016. (D.E. No. 104-4 at 80 (ECF Pagination)). Dey

challenges the admissibility of the notes as inadmissible hearsay. For purposes of this Background section, the Court

does not accept or reject the evidence submitted in support of these facts.

discussion, and Abuhoff never offered to provide coaching in the first place. (Id. ¶¶ 77–78 & 81;

Def. Resp. SUMF ¶ 43).

On November 8, 2016, Dey filed a charge of discrimination with the Equal Employment

Opportunity Commission (“EEOC”). (Def. Reply SUMF ¶ 83). The following day, Dey presented

to the emergency room complaining of chest tightness, and he underwent heart surgery. (Id. ¶ 71;

Def. Resp. SUMF ¶¶ 47–48). According to Dey, the stress caused by Indovino led to him suffering

a heart attack. (Def. Reply SUMF ¶ 76). And Dr. Rajat Deo, MD, MTR opined, to a reasonable

degree of medical certainty, that Dey’s stress-induced state of mind and emotional/psychological

status contributed to his acute presentation with unstable angina. (Def. Resp. SUMF ¶ 53; D.E.

107-1, Nitschke Decl., Exhibit C at 4). As a result of the surgery, Dey took ten days off from work

in order to recover. (Def. Reply SUMF ¶ 72).

Shortly after his return to work, on December 21, 2016, Innodata terminated Dey from his

employment. (Id. ¶ 82). According to Innodata, it terminated Dey because of his poor

performance. (Id.). Dey, however, believes that his termination was an act of discrimination

against him based on his race and national origin and/or that he was retaliated against in response

to his complaints of discrimination. (See generally Compl.).

On July 28, 2017, Dey filed suit against Innodata bringing claims for: (i) discrimination

based on national origin pursuant to Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e et seq. (Count I); (ii) discrimination based on race and ethnicity under Title VII

(Count II); (iii) violation of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101, et

seq. (“ADA”) (Count III); (iv) retaliatory discharge under Illinois common law (Count IV); (v)

discrimination based on national origin, race and/or color under the Illinois Human Rights Act

(“IHRA”), 775 Ill. Comp. Stat. Ann. 5/6-101(A) (Count V); and (vi) violations of the Illinois

Whistleblower Act (“IWA”), 740 ILCS 174/20 (Count VI). (Compl. ¶¶ 42–89). Dey filed the

Complaint in the Northern District of Illinois, but the case was transferred to this District upon

Innodata’s motion. (D.E. Nos. 9 & 35). Innodata answered the Complaint and later asserted

counterclaims for breach of contract, unjust enrichment, and promissory estoppel based on Dey’s

failure to repay the Promissory Note. (D.E. No. 82, Amended Answer to Complaint,

Counterclaim). The case proceeded to discovery, and on June 22, 2020, Innodata filed the instant

motion for summary judgment, seeking judgment on all of Dey’s claims and on its counterclaims.

(See generally SJ Motion). Dey opposes the SJ Motion and moves to strike some of Innodata’s

evidence submitted in support. (D.E. No. 109-1 (“Pl. Opp. Br.”); Motion to Strike).

II. LEGAL STANDARD

Under Federal Rule of Civil Procedure 56(a), a “court shall grant summary judgment if the

movant shows that there is no genuine dispute as to any material fact and the movant is entitled to

judgment as a matter of law.” The mere existence of an alleged disputed fact is not enough.

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986). Rather, the opposing party must prove

that there is a genuine dispute of a material fact. Id. at 247–48. An issue of material fact is

“genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving

party.” Id. at 248. A fact is “material” if under the governing substantive law, a dispute about the

fact might affect the outcome of the lawsuit. Id. Factual disputes that are irrelevant or unnecessary

will not preclude summary judgment. Id.

On a summary judgment motion, the moving party must first show that no genuine issue

of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts

to the nonmoving party to present evidence that a genuine issue of material fact compels a trial.

Id. at 324. To meet its burden, the nonmoving party must offer specific facts that establish a

genuine issue of material fact, not just “some metaphysical doubt as to the material facts.”

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586–87 (1986). Thus, the

nonmoving party cannot rely on unsupported assertions, bare allegations, or speculation to defeat

summary judgment. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir.

1999). The Court must, however, consider all facts and their reasonable inferences in the light

most favorable to the nonmoving party. See Pa. Coal Ass’n v. Babbitt, 63 F.3d 231, 236 (3d Cir.

1995).

III. DISCUSSION

A. Title VII Claims

In Counts I and II of the Complaint, Plaintiff alleges claims for Title VII discrimination

based on his race, ethnicity, and national origin. Defendant moves for summary judgment on these

claims, arguing that Plaintiff cannot establish that he was subjected to unlawful disparate treatment

based on his national origin, race, or ethnicity under Title VII, and that Plaintiff cannot establish

that he was subjected to a hostile work environment. The Court finds that summary judgment is

warranted on the disparate treatment claim, but not the hostile work environment claim.

i. Disparate Treatment

Title VII disparate treatment claims are analyzed under the burden-shifting framework

announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802–04 (1973). To demonstrate

a prima facie case of discrimination, a plaintiff must show that: (i) he is a member of a protected

class; (ii) he was qualified for the position he held; (iii) he suffered an adverse employment action;

and (iv) the circumstances of the adverse employment action give rise to an inference of

discrimination. Johnson v. Keebler-Sunshine Biscuits, Inc., 214 F. App’x 239, 241 (3d Cir. 2007).

If the plaintiff establishes a prima facie case, the burden shifts to the defendant-employer to

provide a legitimate, non-discriminatory reason for the adverse employment action. Id. If the

defendant-employer meets this burden, the plaintiff must then prove by a preponderance of

evidence that the legitimate reason provided by the defendant-employer is simply a pretext for

discrimination. Id. To show pretext, “a plaintiff must submit evidence which: (i) casts doubt on

the legitimate reason proffered by the employer such that a factfinder could reasonably conclude

that the reason was a fabrication; or (ii) allows the factfinder to infer that discrimination was more

likely than not a motivating or determinative cause of the employee’s termination.” Id. at 242.

Innodata does not dispute that Dey can establish elements one and three of his prima facie

case: Dey is of Asian ethnicity and Indian nationality, which makes him a member of a protected

class, and Dey’s termination constitutes an adverse employment action. However, Innodata

contends that Dey was not qualified for the position he held, and that the circumstances of his

termination do not give rise to an inference of discrimination. (D.E. No. 104-1 (“Def. Mov. Br.”)

at 10–12).

As to qualifications, Innodata argues that Dey’s supposedly poor performance shows he

was not qualified for his role as Client Partner. (Id. at 10–11). The Court disagrees. To determine

whether a plaintiff was qualified for his position, the court applies an objective standard. Weldon

v. Kraft, Inc., 896 F.2d 793, 798 (3d Cir. 1990). Specifically, the court considers whether the

plaintiff had the objective education and experience to qualify as a viable candidate for his position.

See Sempier v. Johnson & Higgins, 45 F.3d 724, 729 (3d Cir. 1995). And where, as here, the

question is whether the plaintiff was qualified for the position that he actually held (rather than,

for example, whether he was qualified for a promotion), recruitment and hiring by a defendant-

employer can support the prima facie case, even in the face of poor performance evaluations. See

Weldon, 896 F.2d at 798. Thus, Dey’s employment as a Client Partner in the United States—after

he worked for two-and-a-half years in a similar sales position—supports that he was qualified for

his position.

Next, Innodata argues that there is no evidence supporting an inference of discrimination.

(Def. Mov. Br. at 11). Plaintiff contends that Indovino’s treatment of Dey is more than sufficient

to support an inference of discrimination. (Pl. Opp. Br. at 13). On this score, the Court agrees

with Defendant.

A plaintiff can show that the circumstances of an adverse employment action give rise to

an inference of discrimination in various ways. Such an inference is often presented in the form

of evidence of disparate treatment, “whereby a plaintiff shows that [he or she] was treated less

favorably than similarly situated employees” of a different race. Doe v. C.A.R.S. Prot. Plus, Inc.,

527 F.3d 358, 366 (3d Cir. 2008). An inference of discrimination can also be supported in a

number of other ways, “including, but not limited to, comparator evidence, evidence of similar

racial discrimination of other employees, or direct evidence of discrimination from statements or

actions by [his] supervisors suggesting racial animus.” Golod v. Bank of America Corp., 403 F.

App’x 699, 703 n.2 (3d Cir. 2010). Although no precise type of disparate treatment is necessary

to establish a claim of discrimination, a plaintiff “must establish some causal nexus between his

membership in a protected class and the [adverse employment action].” Sarullo v. U.S. Postal

Serv., 352 F.3d 789, 798 (3d Cir. 2003); Jasmin v. New Jersey Econ. Development Auth., No. 16-

1002, 2020 WL 3411171, at *13 (D.N.J. June 22, 2020).

Dey seems to suggest that the fact that he was terminated following his complaints about

discrimination is evidence of an inference of discrimination. (Pl. Opp. Br. at 8). But this argument

seems to conflate the issue whether Dey was fired because of his complaints (i.e., in retaliation for

his complaints) with the question whether he was fired because of his status in a protected class.

Dey otherwise suggests that his evidence of Indovino’s “racially-based critiques and commentary

directed at him” suffices to show an inference of discrimination with respect to his termination.

(Id. at 8 & 13). But fatal to Dey’s prima facie discrimination case is a lack of evidence linking

Indovino and her racially-based critiques and comments to Innodata’s decision to terminate Dey.

Dey does not dispute that Indovino did not make the decision to terminate Dey. (Pl. Resp. SUMF

¶ 85; Weber Decl., Exhibit 13 at 72:1–22). Thus, even if Indovino’s comments and behavior are

evidence of her discriminatory animus, alone, they do not show a causal connection between Dey’s

membership in a protected class and his termination. See Jenkins v. Inspira Health Network, Inc.,

No. 15-2922, 2018 WL 1535208 at *9 (D.N.J. Mar. 29, 2018) (stating that comments made by a

non-decisionmaker were insufficient to create an inference of discrimination).

Accordingly, the Court finds that Dey has not put forth sufficient evidence to suggest an

inference of discrimination surrounding the circumstances of his termination. Therefore, Dey has

not established a prima facie case of discrimination based on disparate treatment, and Innodata is

entitled to summary judgment on this claim.

ii. Hostile Work Environment

Title VII also prohibits harassment that creates a hostile working environment. Mandel v.

M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013). To establish a prima facie case of a

hostile work environment a plaintiff must show that: (i) he suffered intentional discrimination

because of his status in a protected class; (ii) the discrimination was severe or pervasive; (iii) the

discrimination detrimentally affected him; (iv) the discrimination would detrimentally affect a

reasonable person in like circumstances; and (v) the existence of respondeat superior liability. Id.

Innodata argues that the majority of Dey’s allegations, at best, evidence a “personality clash,” and

none of Indovino’s national origin-based comments are sufficiently severe or pervasive to meet

the standard for actionable harassment. (Def. Mov. Br. at 16–17). Innodata also argues that even

if Dey found his work environment to be hostile, Dey has not shown that a reasonable person in

the same protected class would perceive the environment as hostile. (Id. at 17). The Court views

these arguments as challenging whether Dey has sufficient evidence of elements one, two, and

four of his hostile work environment claim and will consider each in turn.

As a preliminary matter, the Court rejects Innodata’s efforts to separate Dey’s allegations

into two buckets—those that are not explicitly motivated by race or national origin (such as

Indovino’s tone and criticisms) and Indovino’s national origin-based comments—and evaluate the

evidence separately. Innodata seems to suggest that the Court should disregard the former category

of allegations because they evidence mere disagreement and a personality clash among Indovino

and Dey. And such allegations, Innodata says, cannot change a claim into a hostile work

environment claim simply because Dey is a member of a protected class. (Id. at 16). However,

as the Third Circuit has explained, “the advent of more sophisticated and subtle forms of

discrimination requires that we analyze the aggregate effect of all evidence and reasonable

inferences therefrom, including those concerning incidents of facially neutral mistreatment, in

evaluating a hostile work environment claim.” Cardenas v. Massey, 269 F.3d 251, 261–62 (3d

Cir. 2001).

Considering the evidence in the aggregate, the Court finds that Dey has put forward enough

evidence to create a genuine issue of material fact on the issue whether Indovino was motivated

by animus based on Dey’s race or national origin. Dey claims that Indovino made derogatory

comments related to ethnicity and national origin when she commented on the inability of the

Asian operations team to conduct business coherently, stated that she loathes the fact that the

delivery centers are in Asia and that this location was the core of the problem, stated that she “can

barely understand” what the offshore teams say on phone calls, and on one occasion, as Dey was

in the middle of an explanation, she complained that “this explanation is too long and you Indians

have no ability to speak in short sentences clearly.” (Def. Resp. SUMF ¶¶ 18, 19, 22 & 24). In

addition, Dey states that Indovino generally mistreated him by, inter alia, criticizing him, yelling

at him, using a hostile, degrading, derogatory and intimidating tone, and categorically shutting

down his suggestions. (Id. ¶¶ 17, 20–22 & 24). Viewing these facts in totality, a reasonable fact-

finder could conclude that all of the mistreatment, including the facially neutral conduct, was

related to Dey’s race or national origin. See Sherrod v. Philadelphia Gas Works, 57 F. App’x 68,

76 (3d Cir. 2003) (“[I]n light of these two comments, a reasonable fact-finder could find that all

the facially neutral mistreatment of [plaintiff] by other members of the management team was

related to race.”).

To be sure, Innodata challenges Dey’s version of the facts, including whether Indovino

made some of the alleged comments and whether she was generally hostile towards Dey or other

employees. (Def. Resp. SUMF ¶¶ 17–24). In support, Defendant cites to the results from the

Verita Report, which it claims did not corroborate any of Dey’s allegations, and to the testimony

of other Innodata employees who gave different accounts of what happened. (Id.). But the Court

must view the record in the light most favorable to the non-moving party, and it is for a jury to

weigh the competing evidence and decide which version of the facts to believe. See Brown v. Joel

Tanis & Sons, Inc., No. 13-2984, 2016 WL 3951378, at *5 (D.N.J. July 21, 2016) (“At bottom,

resolution of these claims will require credibility determinations and the weighing of evidence,

both functions that are clearly within the province of the jury.”).

Having considered discriminatory motive, the Court turns to the question whether the

discrimination was severe or pervasive. The threshold for showing severe or pervasive

discrimination is high. Greer v. Mondelez Glob., Inc., 590 F. App’x 170, 173 (3d Cir. 2014). A

hostile work environment is actionable under Title VII only if it is so severe or pervasive that it

alters the conditions of the victim’s employment and creates an abusive working environment. Id.

The situation must be objectively hostile, not merely hostile according to the plaintiff. Id. To

determine whether a work environment is sufficiently hostile to be severe or pervasive, the Court

must consider the totality of the circumstances, including the “frequency of the discriminatory

conduct; its severity, whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work performance.” Clark

Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (quotation marks and internal citations

omitted).

As set forth supra, Dey bases his hostile work environment claim on Indovino’s overall

treatment of him and derogatory comments directed at Dey and the offshore teams. (Def. Resp.

SUMF ¶¶ 17–24). As to the frequency of this conduct, Dey has put forward evidence that

Indovino’s conduct occurred “ever since [she] joined Innodata,” which was around April 2016,

and that the conduct “came to a head” in September 2016. (Def. Reply SUMF ¶ 34; Abuhoff

Decl., Exhibit G at 54 (ECF Pagination); D.E. No. 104-3, Weber Decl., Exhibit 12 at 18:4–15).

And according to Dey, the harassment continued after the Verita investigation, after his brief

medical leave, and up to his termination in December 2016. (Pl. Supp. SUMF ¶ 54 (“Upon his

return to work on or about November 20, 2016, Indovino continued her harassment, increased

scrutiny and chang[ed] in her performance appraisal of Dey.”). It is not entirely clear whether,

during this eight-month period from April to December 2016, the complained-of conduct occurred

daily, weekly, monthly, or at some other frequency. However, a reasonable juror could conclude

that the discrimination occurred frequently during this time period. (See Abuhoff Decl., Exhibit

G at 54 (Dey’s September 12, 2016 email to Mr. Abuhoff, in which Dey says that Indovino verbally

berated him and screamed at him “for every action [he] took”); id. at 54–55 (Dey listing examples

of the alleged conduct occurring in June, July, August, and September of 2016); id. at 55 (“For

each proposal that I bring to [Indovino’s] notice she directs open ridicule at how I work. . . ”); id.

(describing a “relentless barrage” of verbal abuse); Pl. Supp. SUMF ¶¶ 20–24 (describing

Indovino’s general tone and attitude towards Dey and stating that Indovino criticized Dey on

“numerous” occasions and “continuously” stated that she loathes the fact that Innodata’s delivery

centers are in Asia)).

As to the severity and nature of the conduct, the Supreme Court has explained that “offhand

comments” and “isolated incidents (unless extremely serious)” will not amount to “discriminatory

changes in the ‘terms and conditions of employment.’” Faragher v. Boca Raton, 524 U.S. 775,

788 (1998). Moreover, mere offensive utterances are not enough to create a hostile work

environment, even if they produce offensive feelings for an employee. Greer, 590 F. App’x at

173. Innodata suggests that the comments made by Indovino are more akin to mere offensive

utterances and offhand comments and are not sufficiently severe or pervasive in quantity or nature

to meet the standard for actionable harassment. (Def. Mov. Br. at 16). If the Court were viewing

Indovino’s national origin-based comments in isolation, Innodata might be correct. But the Court

cannot ignore Indovino’s facially neutral behavior when considering the severity or pervasiveness

of the conduct. Dey’s version of the facts is that his immediate supervisor discriminated against

him because of his race and/or national origin. Her discriminatory motive, according to Dey, is

evidenced by the national origin-based comments she made to him and to others. And the

discriminatory conduct included not only the national origin-based comments, but also repeated

and regular mistreatment. A reasonable juror could find that the national origin-based comments,

when combined with the facially neutral conduct, constituted severe and humiliating conduct

and/or pervasive and regular conduct which altered the conditions of Dey’s employment.

The same considerations permeate the issue whether the discrimination would

detrimentally affect a reasonable person in like circumstances. On this score, Defendants offer the

fact that other witnesses of Indian national origin—who also reported to Indovino and had the

opportunity to witness Indovino and Dey interact—did not observe Indovino treat Dey in a manner

they thought was unprofessional or derogatory and did not feel that Indovino was hostile or critical

of their suggestions or of the suggestions of people in their offices. (Def. Mov. Br. at 17–18

(referring to the results from the Verita Report)). But such evidence does not establish the non-

existence of material issues of fact; to the contrary, it suggests there are disputes of material fact

that must be resolved by a jury. See Streater v. City of Camden Fire Dep’t, 567 F. Supp. 2d 667,

676 (D.N.J. 2008) (noting that “the Court’s capacity to weigh evidence at

the summary judgment stage is almost nil,” even where “[t]he facts offered by [p]laintiff seem

weak and largely uncorroborated by the experiences of others working in the same environment”).

In sum, considering the totality of the circumstances, the Court finds that there are issues

of fact that preclude granting Defendant’s motion for summary judgment on this claim.

B. Violation of the Americans with Disabilities Act

Dey’s claim that Innodata violated the ADA is based on Innodata’s failure to provide

reasonable accommodations for Dey when he returned to work after taking medical leave for a

silent heart attack. (Compl. ¶¶ 57–64; Pl. Opp. Br. at 22). Innodata maintains that it is entitled to

summary judgment on this claim because, inter alia, Dey failed to exhaust administrative

remedies. (Def. Mov. Br. at 18–20). The Court agrees with Innodata.

Before filing a complaint, a plaintiff alleging discrimination under the ADA must exhaust

his administrative remedies by filing a charge with the EEOC. Williams v. E. Orange Cmty.

Charter Sch., 396 F. App’x 895, 897 (3d Cir. 2010) (citing 42 U.S.C. § 2000e–5(e)(1); 42 U.S.C.

§ 12117(a)). If a claim is omitted from an EEOC charge and does not involve the same type of

discrimination as that which was submitted for investigation, the omitted claim is not properly

exhausted and must be dismissed. See Cunningham v. Burlington Coat Factory Warehouse Corp.,

No. 18-11266, 2019 WL 4786016, at *5 (D.N.J. Sept. 30, 2019) (noting that “an ADA action

brought in a district court is constrained to the scope of the EEOC charge,” and that additional

claims can be added to the complaint only if “they fall within the scope of the EEOC Charge”).

Dey does not dispute that his initial EEOC charge did not include an ADA claim. Rather,

he argues that the exhaustion requirement is met because he raised the ADA claim in his reply

papers to the EEOC on April 17, 2017. (Pl. Opp. Br. at 21–22). Dey suggests that the following

sentence from his reply is sufficient to exhaust the issue: “His termination occurred, tellingly, two

days after Innodata became aware of the EEOC charge and just a month after heart surgery which

was necessitated by the stress created by the discrimination and subsequent cover up.” (Id. at 22;

D.E. No. 107-3, Nitschke Decl., Exhibit K at 136 (ECF Pagination)). However, even assuming a

claim can be exhausted through a reply submission, the cited sentence did not have that effect here

because it mentions neither the ADA nor a failure to provide reasonable accommodations. And

Dey’s reply is otherwise focused on his Title VII claims. (See generally Nitschke Decl., Exhibit

K). Moreover, the EEOC made no mention of any disability discrimination in its May 2, 2017

correspondence to Dey which notified him of the conclusion of the EEOC investigation, provided

him with a Notice of Dismissal and Right to Sue, and explicitly states “[y]ou allege you were

discriminated against because of National Origin-East Indian, Retaliation, Race-Asian.” (Weber

Decl., Exhibit 1 (Exhibit E)). Based on the foregoing, the Court cannot agree that Dey sufficiently

exhausted his ADA claim. See Carter v. N.J. Dep’t of Hum. Servs., No. 18-12469, 2020 WL

3427986, at *5 (D.N.J. June 23, 2020) (dismissing ADA claim for failure to exhaust where

plaintiff’s EEOC letter of dismissal and notice of right to sue only pertained to employment

discrimination and retaliation).

Dey further contends that even if he never exhausted the ADA claim, Innodata waived any

argument based on failure to exhaust. Dey cites to Fort Bend County, Texas v. Davis, 139 S. Ct.

1843, 1851 (2019), for the proposition that the ADA exhaustion requirement is a claims processing

rule, not a jurisdictional one, and therefore “employers must promptly raise any exhaustion-related

defenses or risk waiver.” (Pl. Opp. Br. at 21–22). Davis involved claims of religion-based

discrimination and retaliation for reporting sexual harassment. 139 S. Ct. at 1847–48. The district

court granted the defendant’s motion for summary judgment, and the case was appealed to the

Fifth Circuit, which affirmed as to the retaliation claim but reversed as to the religious-based

discrimination claim. Id. at 1848. Defendant filed a petition for certiorari, but that petition was

denied. Id. When the case returned to the district court—now years into the litigation—the

defendant moved to dismiss the complaint raising, for the first time, an exhaustion defense. Id.

The district court granted the motion, but the Fifth Circuit reversed, concluding that Title VII’s

exhaustion requirement is not jurisdictional, and that the defendant forfeited any exhaustion-based

argument by not raising it until after an entire round of appeals all the way to the Supreme Court.

Id. The Supreme Court granted certiorari to resolve a conflict among the Circuit Courts over

whether the requirement was in fact jurisdictional. Id. The Supreme Court concluded that Title

VII’s charge-filing requirement is a mandatory processing rule, but it is “not a jurisdictional

prescription delineating the adjudicatory authority of courts” and affirmed the Fifth Circuit’s

judgment. Id. at 1851–52.

While Dey is correct that a failure to exhaust argument can be waived, the Court is not

persuaded that Innodata has waived that argument here. As another judge in this District has

explained, “the Third Circuit has ‘taken a more forgiving approach to parties

who fail to raise affirmative defenses in an answer, as courts have held that the failure

to raise an affirmative defense by responsive pleading or appropriate motion does not always

result in waiver.’” Cevdet Aksut Ve Ogullari Koll. Sti v. Cavusoglu, No. 12-2899, 2016 WL

231018, at *5 (D.N.J. Jan. 19, 2016) (quoting Sultan v. Lincoln Nat. Corp., No. 03-5190, 2006 WL

1806463, at *13 (D.N.J. June 30, 2006)). Here, although Innodata did not specifically raise a

failure to exhaust defense in its answer, it did assert a general defense under Federal Rule of Civil

Procedure 12(b)(6) that the Complaint “fails to state a claim upon which relief . . . can be granted.”

(D.E. No. 82 at 11); Itiowe v. NBC Universal Inc., 556 F. App’x 126, 128 (3d Cir. 2014) (“[N]on-

exhaustion constitutes a ground for dismissal for failure to state a claim on which relief may be

granted under Fed. R. Civ. Pro. 12(b)(6).”). And although Innodata filed a motion to dismiss or

transfer based on improper venue, it did not file a motion pursuant to Rule 12(b)(6). In other

words, this summary judgment motion was the first motion Innodata filed to address the merits of

Dey’s claims. Thus, this case is unlike Davis where the defendant failed to raise the argument in

its initial summary judgment motion and through an appeal to the Supreme Court. Based on the

foregoing, the Court finds that Defendant did not forfeit its right to raise the argument, and

Plaintiff’s ADA claim is barred.5

C. State Law Claims

Preliminarily, Innodata says “[d]espite Plaintiff’s offer letter mandating that the terms of

his employment and the resolution of any disputes be governed by New Jersey law, Plaintiff has

brought three causes of action based in retaliation under Illinois law.” (Def. Mov. Br. at 20).

Innodata continues that “even applying Illinois law, all three causes of action must be dismissed.”

(Id.). Innodata’s argument seems to be that Dey should have brought New Jersey state law claims,

not Illinois state law claims. However, aside from mentioning the offer letter (and, in its reply

brief, the forum selection clause), Innodata does not argue that the Illinois state law claims should

be dismissed on these grounds. In any event, it is not clear that the offer letter—which provides

that “[t]he terms of this Offer of Employment and the resolution of any disputes will be governed

by New Jersey law”—should be read expansively to apply the substantive law of New Jersey to

any and all disputes between the parties, even if they are unrelated to the terms of the offer of

employment. (See Abuhoff Decl., Exhibit D at 17 (ECF Pagination)). And the referenced forum

selection clause merely provides for the parties’ consent to venue in New Jersey. (D.E. No. 113-

2, Weber Reply Decl., Exhibit 1 ¶ 6). The Court thus addresses these claims on the merits under

Illinois law.

5 Even if this claim was not barred, there appear to be a number of issues with the claim. The basis of the

claim and what evidence supports it is not entirely clear. In the Complaint, Dey claims that Innodata did not provide

him with a reasonable accommodation and that “Defendant unlawfully terminated the Plaintiff due to his medical

condition.” (Compl. ¶¶ 60–63). The relevant medical condition is Dey’s status post-heart attack. At the outset, it is

not clear how Dey’s status post-heart attack qualifies him as an “individual with a disability” under the ADA. Nor is

it clear what evidence supports an assertion that Innodata terminated Dey because of his medical condition. As to the

requested accommodation, Dey claims that after his heart attack he requested that “Indovino eliminate and/or reduce

her abusive nature towards Dey given that the stress she imposed on him caused his heart attack,” and that “his

interactions with Indovino be limited.” (Pl. Opp. Br. at 22). But these requests appear to be unreasonable as a matter

of law. See Gaul v. Lucent Techs., Inc., 134 F.3d 576, 581 (3d Cir. 1998) (requested accommodation unreasonable as

a matter of law where it would essentially require the court to set conditions of employment and depend on variables

outside of employer’s control).

i. Retaliation under the IHRA

Under 775 ILCS 5/6-101(A) of the IHRA, it is a civil rights violation to retaliate against a

person because he opposed what he believed in good faith to be unlawful discrimination or because

he made a charge or filed a complaint of unlawful discrimination. Illinois courts apply the Title

VII framework in analyzing retaliation claims under the IHRA. Volling v. Kurtz Paramedic Servs.,

Inc., 840 F.3d 378, 383 (7th Cir. 2016). “To prevail on a Title VII retaliation claim, the plaintiff

must prove that (1) he engaged in an activity protected by the statute; (2) he suffered an adverse

employment action; and (3) there is a causal link between the protected activity and the adverse

action.” Lewis v. Wilkie, 909 F.3d 858, 866 (7th Cir. 2018).6

There is no dispute that the first and second elements of Dey’s retaliation claim are met:

Dey made an internal complaint against Indovino and filed an EEOC charge, and subsequently

was terminated. To demonstrate the third element—a causal link—Dey must show that but for his

complaints against Indovino, he would not have been terminated. Univ. of Texas Sw. Med. Ctr. v.

Nassar, 570 U.S. 338, 362 (2013); Weller v. Paramedic Servs. of Illinois, Inc., 297 F. Supp. 3d

836, 846 (N.D. Ill. 2018). But-for causation does not mean that the protected activity must have

been the only cause of the adverse action, but it means that the adverse action would not have

happened without the activity. Weller, 297 F. Supp. at 846 (quoting Carlson v. CSX Transp., Inc.,

6 The burden-shifting framework of McDonnell Douglas is another “viable method of organizing and assessing

evidence.” Vesey v. Envoy Air, Inc., No. 18-4124, 2019 WL 12337658, at *3 n.4 (C.D. Ill. Dec. 20, 2019); McDaniel

v. Progress Rail Locomotive, Inc., 940 F.3d 360, 368 (7th Cir. 2019). “That method allows the plaintiff to establish a

prima facie case without proving a direct causal link by showing that (1) he engaged in a protected activity, (2) he

performed his job duties according to his employer’s legitimate expectations, (3) he suffered an adverse action, and

(4) he was treated less favorably than similarly situated employees who did not engage in protected activity.” Lewis,

909 F.3d at 866. This method is not a separate legal standard, but rather is just a different way to consider whether

the evidence would permit a reasonable factfinder to conclude that the plaintiff’s protected activity caused the adverse

employment action. Ortiz v. Werner Enterprises, Inc., 834 F.3d 760, 765 (7th Cir. 2016). Because Dey does not

attempt to prove causation through evidence of treatment of similarly situated employees, the Court uses the

framework for its analysis outlined supra.

758 F.3d 819, 828 n.1 (7th Cir. 2014)). There are many ways to prove a causal link, including by

evidence of “suspicious timing, ambiguous statements of animus, evidence other employees were

treated differently, or evidence the employer’s proffered reason for the adverse action was

pretextual.” Greengrass v. Int’l Monetary Sys. Ltd., 776 F.3d 481, 486 (7th Cir. 2015).

Innodata does not dispute the temporal proximity between Dey’s complaints—first to

Abuhoff on September 12, then to the EEOC on November 8—and his firing on December 21.

(Def. Mov. Br. at 21). However, Innodata correctly argues that temporal proximity between an

employee’s protected activity and an adverse employment action is rarely sufficient, on its own,

to show that the former caused the latter. (Id. (citing Martinez v. Nw Univ., 173 F. Supp. 3d 777,

788 (N.D. Ill. 2016))). And according to Innodata, Dey fails to point to any other evidence to

support the causation requirement and/or to rebut Innodata’s proffered reason for termination—

Dey’s poor performance. (Id. at 21–22). The Court disagrees.

In addition to temporal proximity, Plaintiff has put forward evidence that Defendant’s

proffered reason for termination is pretextual. “Pretext involves more than just faulty reasoning

or mistaken judgment on the part of the employer.” Argyropoulos v. City of Alton, 539 F.3d 724,

736 (7th Cir. 2008). “The question is not whether the employer’s stated reason was inaccurate or

unfair, but whether the employer honestly believed the reason it has offered to explain the

discharge.” O’Leary v. Accretive Health, Inc., 657 F.3d 625, 635 (7th Cir. 2011). Thus, to show

pretext, the employee “must ‘identify such weaknesses, implausibilities, inconsistencies, or

contradictions’” in the employer’s proffered reason “‘that a reasonable person could find [it]

unworthy of credence.’” Coleman v. Donahoe, 667 F.3d 835, 852 (7th Cir. 2012) (alteration in

original) (quoting Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 792 (7th Cir. 2007)).

In support of his argument that Innodata’s proffered reason for his termination—poor

performance—was pretextual, Dey maintains that all alleged poor performance allegations came

after his complaint to Abuhoff about Indovino. (Pl. Opp. Br. at 25–26). In particular, Dey argues

that his supervisors never expressed problems with his performance prior to his complaint to

Abuhoff, and that any issues with his performance started being charted on September 19, 2016, a

week after he made his complaint against Indovino. Dey’s argument has support in the record.

Innodata cites to various declarations and exhibits thereto to demonstrate poor

performance.7 But Dey points out potential weaknesses in this evidence, which could lead a

reasonable juror to believe that Innodata’s stated reason for termination was pretextual. To start,

some of the evidence is disputed. (See, e.g., Def. Reply SUMF ¶ 18 (Defendant citing to Abuhoff’s

testimony that in early 2014 he and Dey discussed Dey’s pipeline for new business being

insufficient, and Dey citing to his own declaration for support that this discussion never

happened)). Moreover, much of the evidence post-dates Dey’s initial complaint to Abuhoff on

September 12, 2016. (See, e.g., Def. Reply SUMF ¶¶ 77–81 (describing issues after the Verita

investigation); D.E. No. 104-5, Novero Decl., Exhibits A (October 2016 emails) & B (various

email strings in late September, October, and December 2016); Abuhoff Decl., Exhibits K, L

(September 23, 2016 correspondence) & M (November 1, 2016 correspondence8)). Indeed, it was

not until September 19, 2016, that Indovino created the spreadsheet of performance issues that

Innodata relies on in support of its motion. (Novero Decl., Exhibit G; Def. Resp. SUMF ¶ 63).

7 Dey moves to strike Exhibits A–G of the Novero Declaration because they contain handwritten notes and

highlights which Dey says constitute inadmissible hearsay. (Motion to Strike at 1). Dey’s argument may have some

merit, but the Court need not resolve this dispute because these documents do not change the Court’s conclusion.

8 There are no identifying cover sheets for exhibits K through M of the Abuhoff Declaration, but the Court is

able to identify each exhibit by referencing the description provided in the Abuhoff Declaration. (See Abuhoff Decl.

¶¶ 39–42). Using the pagination generated by the Court’s electronic filing system, Exhibit K appears on pages 83–

84; Exhibit L appears on pages 85–87; and Exhibit M appears on page 88. (D.E. No. 104-4 at 83–88).

See, e.g., Alexander v. Gerhardt Enterprises, Inc., 40 F.3d 187, 197 (7th Cir. 1994) (“The record

contains sufficient evidence that it was only after the July 7 incident that concerns arose regarding

her status at the company.”).

Although there is some other evidence that pre-dates Dey’s initial complaint, that evidence

has potential weaknesses, too. Specifically, Innodata cites to several email communications

between Dey and Indovino where, in sum, Indovino questioned Dey’s business decisions, provided

constructive feedback, and/or asks for additional information about Dey’s strategy. (Novero Decl.,

Exhibits C, D, E & F). Although a reasonable juror could consider these communications as

evidence of poor performance, a reasonable juror also could find this evidence unworthy of

credence based on the fact that the person criticizing Dey is the same person who is accused of

discriminating against him on the basis of his race. Dorvil v. Burlington Coat Factory Warehouse

Corp., No. 09-5778, 2011 WL 4899976, at *5 (D.N.J. Oct. 14, 2011) (concluding that a jury could

find pretext for termination where a performance plan was instituted by an individual who made

discriminatory comments towards plaintiff on multiple occasions). Moreover, it is not clear

whether Indovino’s concerns raised in these emails were elevated to human resources and/or to

Abuhoff as “performance concerns” until after Dey’s initial complaint about Indovino on

September 12, 2016. And it is equally unclear whether Indovino’s comments were presented to

Dey as performance concerns prior to his complaints.9 Indeed, it seems that the first (undisputed)

performance-related discussion between Dey and Abuhoff took place in early November 2016,

after the Verita investigation concluded. (Abuhoff Decl., Exhibit J; D.E. No. 107-7, Dey Decl. ¶

9 Relatedly, although Dey does not dispute that his only commissions came from his sale with Book Dog Books

in 2014, it is not clear whether this was perceived as a performance issue prior to Dey’s complaints. Indeed, as Dey

points out, despite his lack of commissions, Innodata sponsored Dey’s move to the United States in February 2016.

30).10 Thus, this case is unlike some others where the pre-complaint performance concerns were

abundantly clear from the record. See, e.g., Hellman v. Am. Water Works Serv. Co., Inc., No. 17-

12961, 2020 WL 2189967, at *10 (D.N.J. May 6, 2020) (“Although Plaintiff received years of

positive performance reviews from Mr. Li, she had also received multiple warnings from Hammer,

both formally and informally, that he was unsatisfied with her work product.”); Hunter v. Deptford

Bd. of Educ., No. 16-0727, 2019 WL 4786032, at *7 (D.N.J. Oct. 1, 2019) (“The undisputed

evidence shows that the BOE received dozens of complaints about [p]laintiff’s work performance

from multiple sources, and that [p]laintiff was retrained on at least three occasions.”); Juarez v.

Ameritech Mobile Commc’ns, Inc., 957 F.2d 317, 321 (7th Cir. 1992) (“The undisputed facts make

clear that Slavin fully informed Juarez of the deficiencies in her performance and gave her every

opportunity to correct them.”).

Taken together, the close timing between the protected activity and termination and the

evidence Plaintiff has put forth to cast doubt on Defendant’s proffered reason for termination

would allow a reasonable fact finder to conclude that Dey’s protected activity caused his

termination or to infer Innodata’s retaliatory motive. Thus, Plaintiff has presented enough

evidence to withstand Defendant’s motion for summary judgment on his state law retaliation

claim.11

10 On this score, Dey claims that Abuhoff’s behavior towards him changed, as he suddenly became more critical

of Dey’s performance following the Verita investigation. See Morrill v. Nielsen, No. 17-3419, 2018 WL 3141798, at

*13 (N.D. Ill. June 27, 2018) (recognizing that a change in a supervisor’s behavior can help show a causal connection).

11 Although not addressed by the parties, it is not clear whether this claim was adequately exhausted under

Illinois law and, if not, whether such a failure to exhaust implicates jurisdictional concerns. The Complaint and the

briefing specifically address exhaustion as to Dey’s federal claims but are silent as to the IHRA claim which appears

to have a similar exhaustion requirement. (Compl. ¶ 31; Def. Mov. Br. at 18); see Doe 1 v. City of Chicago, No. 18-

3054, 2020 WL 1166222, at *4 (N.D. Ill. Mar. 11, 2020) (“The IHRA requires plaintiffs to exhaust their administrative

remedies; a complainant may commence a civil IHRA action in court only after the IDHR issues a final order notice.”).

To the extent the IHRA’s exhaustion requirement applies and is a non-jurisdictional claims processing rule, Innodata

has forfeited any argument based on a failure to exhaust. See Doe I, 2020 WL 1166222, at *4–5 (concluding that

exhaustion under the IHRA is non-jurisdictional and subject to forfeiture). But as one Illinois District Judge has

explained “courts in the Seventh Circuit appear divided as to whether a failure to exhaust administrative remedies

ii. Illinois Whistleblower Act Claims

Innodata also seeks summary judgment on Dey’s claims under Sections 10 and 15 of the

IWA. The Court agrees with Defendant that summary judgment is warranted on the Section 10

claim but denies summary judgment on the Section 15 claim.

1. Section 10

Section 10 of the IWA prohibits an employer from making, adopting, or enforcing any rule,

regulation, or policy preventing an employee from disclosing information to a government or law

enforcement agency if the employee has a reasonable cause to believe that the information

discloses a violation of a state or federal law, rule, or regulation. 740 Ill. Comp. Stat. Ann. 174/10.

If there is no evidence that the defendant-employer had any formal policy or rule preventing

employees from contacting government agencies about wrongdoing, a plaintiff must show that the

employer was practicing an unrecorded policy with the same impact. See Diadenko v. Folino, 890

F. Supp. 2d 975, 993 (N.D. Ill. 2012), aff’d, 741 F.3d 751 (7th Cir. 2013). Innodata contends that

it never enforced any policy designed to prevent Dey or its employees from disclosing alleged

unlawful conduct to a government agency. The Court agrees that there is insufficient evidence to

support this claim.

It is not clear what rule, regulation, or policy—whether it be formal or informal—Dey

relies on to support his Section 10 claim. Dey argues that, although Innodata had written policies

regarding equal employment and harassment, “[d]efendant failed to enforce its policy designed to

protect its employees when disclosing unlawful conduct to a governmental agency.” (Pl. Opp. Br.

at 26–27). He further argues that, instead of enforcing its policy, Innodata “punished its employee

under the IHRA deprives federal courts of subject matter jurisdiction.” Baranowska v. Intertek Testing Servs. NA,

Inc., No. 19-6844, 2020 WL 1701860, at *2 n.3 (N.D. Ill. Apr. 8, 2020) (collecting cases). Thus, to assure that it has

jurisdiction over the IHRA claim, the Court requests supplemental briefing on the issue, as set forth in the

accompanying Order.

for doing just that” and “engag[ed] in intimidation to prevent reporting of discrimination.” (Id. at

26). For support, Dey cites to the fact that Abuhoff started treating him differently after he

complained on September 12, 2016, and he claims that the formal investigation was merely pretext

to prevent Dey from filing an EEOC complaint. (Id. at 26–27).

Even if Dey has evidence to support these contentions, his argument misses the mark. Dey

has not pointed to an official rule, regulation, or policy that would have prevented him from filing

a charge of discrimination. Nor does he explain how any of the conduct he experienced amounted

to the enforcement of some unwritten policy meant to prevent him from doing so. See Diadenko,

890 F. Supp. 2d at 993 (holding that summary judgment for defendant-employer was warranted

because there was no evidence of any formal policy preventing employees from contacting

government agencies about wrongdoing and there was insufficient evidence that defendant-

employer enforced or maintained any unwritten policy to the same effect). Accordingly, the Court

finds that Innodata is entitled to summary judgment on this claim.

2. Section 15 of the IWA

Section 15 of the IWA prohibits an employer from retaliating against an employee for

disclosing information to a government or law enforcement agency, where the employee has

reasonable cause to believe that the information discloses a violation of a state or federal law, rule,

or regulation. 740 Ill. Comp. Stat. Ann. 174/15. Dey claims that Innodata violated Section 15 by

terminating Plaintiff in retaliation for his EEOC charge. Innodata argues that it is entitled to

summary judgment on this claim because there is no evidence of retaliatory motive concerning

Dey’s termination. (Def. Mov. Br. at 23). The Court finds that material factual disputes preclude

entry of judgment on this claim.

Dey filed his EEOC charge on November 8, 2016, and he was fired just over a month later

on December 21, 2016. Innodata contends that when Dey was terminated, Abuhoff, the

decisionmaker in Dey’s termination, had not seen Dey’s EEOC charge. (Def. Mov. Br. at 23–24).

Dey does not necessarily dispute that Abuhoff had never seen the EEOC charge, but he proffers

evidence to suggest that Abuhoff was aware of the EEOC charge. Specifically, at Abuhoff’s

deposition, Abuhoff testified that he did not recall when he became aware of the EEOC complaint

and stated that during the December 21, 2016 termination phone call, he did not remember that

Dey filed an EEOC complaint until Dey’s attorney raised it; at that point, Abuhoff said, he

“recall[ed] feeling like maybe I made a mistake, that maybe I shouldn’t have terminated him

because frankly I had forgotten about that EEOC thing.” (Pl. Resp. SUMF ¶ 84; Weber Decl.,

Exhibit 12 at 76:5–77:8). Although this testimony may not conclusively establish that Abuhoff

knew of the EEOC charge at the time of the termination, Abuhoff’s testimony suggests that he was

aware of it at some point before the termination but forgot about it. And whether or not Abuhoff

knew of the EEOC charge at the time of termination is material to whether Dey was fired because

of his EEOC charge.

Moreover, as discussed in Section III.C supra, the other arguments proffered by Innodata—

that they had non-retaliatory reasons for terminating Dey––similarly involve material factual

disputes that presently are not suitable for resolution. Accordingly, Plaintiff has presented enough

evidence to withstand Defendant’s motion for summary judgment on this claim.

iii. Common Law Retaliatory Discharge Claim

To prove a common law retaliatory discharge claim, a plaintiff must show that he was (i)

discharged; (ii) in retaliation for his activities; and (iii) the discharge violates a “clearly mandated

public policy.” See Turner v. Mem’l Med. Ctr., 911 N.E. 2d 369, 374 (Ill. 2009). The Court has

already discussed the first two elements in connection with Dey’s other claims. To satisfy the third

element, a plaintiff must point to the specific source of the clearly mandated public policy. See id.

at 376. Importantly, the source of the mandated public policy cannot be the IHRA because of the

IHRA’s preemption mechanism.

Specifically, the IHRA sets out an administrative procedure for certain civil rights claims

and specifies that “no court of this state shall have jurisdiction over the subject of an alleged civil

rights violation other than as set forth in this Act.” 775 Ill. Comp. Stat. 5/8-111(D). Thus, the

IHRA preempts claims where the basis for the claim arises from a matter covered under the IHRA,

unless the plaintiff can establish a basis for imposing liability on defendants outside of the Act.

Nelson v. Realty Consulting Servs., Inc., 431 F. App’x 502, 506–07 (7th Cir. 2011) (citing Blount

v. Stroud, 904 N.E.2d 1, 10 (Ill. 2009)); Maksimovic v. Tsogalis, 687 N.E.2d 21, 23 (Ill. 1997)

(stating that courts should look at whether the claim is “inextricably linked to a civil rights violation

such that there is no independent basis for the action apart from the Act itself”).

Innodata argues that Dey fails to provide an independent basis for imposing liability

beyond the IHRA. (Def. Mov. Br. at 20). But in response, Dey clarifies that his common law

discharge claim is based on “his whistle-blowing activities of filing an EEOC [c]laim,” and

therefore Dey relies on the “clearly mandated public policy” embodied in the IWA. (Pl. Opp. Br.

at 24). Importantly, the IHRA does not preempt claims brought under the IWA where, as here,

those claims are based on retaliation for disclosing a violation of federal law. See Torres v. Merck

Sharp & Dohme Corp., 255 F. Supp. 3d 826, 832–33 (N.D. Ill. 2017) (“[Plaintiff] thus is not calling

upon the Human Rights Act to undergird his Whistleblower Act claim in any way. He is instead

arguing that there was a breach of federal law reported to a federal agency, and that [defendant]

later retaliated on that basis. That retaliation, in turn, violates the state Whistleblower Act. No

mention of the Illinois Human Rights Act is needed at all, so there is no preemption.”). It follows,

then, that no mention of the IHRA is needed for a common law retaliatory discharge claim based

on the same conduct underlying a non-preempted IWA claim. Moreover, as one Illinois District

Court has noted, “several Illinois lower courts as well as federal courts have rejected the notion

that the IWA abrogated, preempted, or repealed otherwise existing common law retaliatory

discharge claims.” Van Pelt v. Bona-Dent, Inc., No. 17-1128, 2018 WL 2238788, at *7 n.1 (N.D.

Ill. May 16, 2018) (collecting cases). Thus, Dey’s common law retaliatory discharge claim

survives because it is premised on the public policy embodied in the IWA—not the IHRA—and

the IWA does not preempt such a claim.12

D. Economic Damages

Innodata claims that it should be awarded summary judgment because “Plaintiff has not

introduced any evidence of damages he can recover from a jury at trial.” (Def. Mov. Br. at 24).

In support, Innodata argues that (i) because Dey has failed to establish a prima facie case for any

of his claims, the Court need not consider whether there is evidence to support emotional distress

damages; (ii) any damages Dey could have suffered are “entirely negated by Plaintiff’s new role

and corresponding compensation”; and (iii) Dey cannot recover any damages related to his

purported heart attack because such an injury is a workplace injury and New Jersey’s Workers’

Compensation law is his exclusive remedy. (Id. at 24–25).

The Court rejects Innodata’s first argument because it is premised on the Court finding that

Innodata is entitled to summary judgment on each of Dey’s claims. But as set forth in this Opinion,

some of Dey’s claims survive summary judgment. Innodata’s second argument pertaining to

mitigation of economic damages is unpersuasive because it ignores that Dey seeks more than

12 It may be the case that Dey’s common law retaliatory discharge claim is duplicative of his IWA claim, and

that he may not permissibly recover separate damages for such a claim. Innodata has not advanced such an argument.

simply lost wages for wrongful discharge. (See Compl. ¶¶ 56, 78 & 88–89). Thus, even if Dey’s

earnings from his new job offset certain damages for wrongful discharge, Innodata does not argue

whether and how such earnings can offset any other damages.

Lastly, Innodata argues that Dey cannot recover any damages related to his heart attack

because he has alleged that his heart attack was the direct and proximate result of ongoing abuse

and harassment by Innodata, and therefore his exclusive remedy is under New Jerseys’ Workers’

Compensation Law. (Def. Mov. Br. at 25). Defendant cites to McDaniel v. Man Wai Lee, 17 A.3d

816, 820 (N.J. Super. Ct. App. Div. 2011), for the premise that the statute’s exclusivity bar

prohibits an injured employee’s legal action to recover for injuries caused by fellow employees.

But the New Jersey Supreme Court recently explained, “it is understood that

state workers’ compensation exclusivity provisions do not bar claims brought under federal civil

rights laws.” Richter v. Oakland Bd. of Educ., 252 A.3d 161, 182 n.4 (N.J. 2021), as

modified (June 15, 2021); see also Lopez v. S.B. Thomas, Inc., 831 F.2d 1184, 1190 (2d Cir. 1987)

(“[W]e do not read the workers’ compensation law to deny relief under a federal statute. Were

state law to erect such a bar, it would clearly run afoul of the Supremacy Clause of the U.S. Const.

Art. VI, cl. 2.” (internal citations omitted)). Thus, at minimum, Dey can assert his heart attack

related damages in connection with the surviving Title VII claim, notwithstanding the exclusivity

bar.

To be sure, whether Dey can prove all of the damages he claims remains to be seen. But

for purposes of this summary judgment motion, Innodata has not sufficiently demonstrated that it

is entitled to summary judgment on all of Dey’s claims due to lack of damages.

E. Counterclaims

Finally, Innodata argues that it is entitled to summary judgment on its counterclaims. (Def.

Mov. Br. at 25). Those claims, sounding in breach of contract, unjust enrichment, and promissory

estoppel, are based on Dey’s alleged failure to repay the $6,250.00 loan from Innodata.

To establish a breach of contract claim, a party must show the existence of a contract,

breach, and damages. Dey does not dispute the existence of a contract between the parties: he

admits that Innodata loaned him $6,250.00 to assist with his move to the United States; and that in

exchange, he signed the Promissory Note, agreeing to repay the loan with interest at the rate of

3.5% per annum on the unpaid balance. (Pl. Resp. SUMF ¶¶ 22–25). Nor does Plaintiff dispute

that while he was employed at Innodata, the Promissory Note was due and payable in 48 equal

installments of $135.00, payable twice monthly as an automatic salary reduction from each period

beginning March 2016. (Id. ¶ 26). And the parties also agree that the Promissory Note became

immediately due and payable if Innodata no longer employed Dey, for any reason, whether

voluntary or involuntary. (Id. ¶ 27).

With respect to breach and damages, Dey does not seem to dispute that there is some unpaid

portion of the loan remaining. Instead, he argues that there is a lack of evidence with respect to

how much was deducted from his paycheck and that “any claims that monies are owed is simply

a red-herring this Court should not entertain.” (Pl. Opp. Br. at 30). But contrary to Dey’s assertion,

Innodata has provided copies of Dey’s bi-monthly pay stubs from February 29, 2016, to November

15, 2016, which show that beginning in March 2016, Innodata deducted $135.01 from each of

Dey’s paychecks in accordance with the terms of the Promissory Note. (D.E. No. 113-5, Weber

Reply Decl., Exhibit 4). As of November 15, 2016, the paystubs show that a total of $2,295.17

had been deducted from Dey’s paychecks in connection with the loan. (Id. at 15 (ECF

Pagination)). Based on these paystubs, it appears that, as of November 15, 2016, Dey still owed

$3,954.83 on the principal amount of the Promissory Note. And Dey does not put forward any

evidence to rebut the fact that there is indeed an outstanding balance on the loan, i.e., that he is in

breach of his obligation under the Promissory Note, and that Innodata has suffered damages as a

result.

The Court briefly considers Dey’s argument that Innodata waived its right to collect on the

Promissory Note because it failed to deduct the amount owed from Dey’s final paycheck. (Pl.

Opp. Br. at 29). Although the Promissory Note states that any amounts owed would be subject to

set-off against final sums due to Dey from Innodata, the Promissory Note does not limit Innodata’s

right to recover to setoff. (See Abuhoff Decl., Exhibit C). Moreover, as Plaintiff’s cited case law

makes clear, “[w]aiver involves the intentional relinquishment of a known right and must be

evidenced by a clear, unequivocal and decisive act from which an intention to relinquish the right

can be based.” Scibek v. Longette, 770 A.2d 1242, 1249 (N.J. Super. Ct. App. Div. 2001); Hilal

v. Dongyoun Han, No. A-6004-17T2, 2019 WL 3521522, at *3 (N.J. Super. Ct. App. Div. Aug. 2,

2019) (“A party waives its right to enforce a contract provision if it consistently acts in such a way

as to indicate that it does not intend to hold the other contracting party to that provision.”).13

Innodata’s failure to set off the amounts owed on the Promissory Note from Dey’s final paycheck

does not amount to the type of “clear, unequivocal and decisive act” necessary to show an intention

to relinquish a right. Indeed, Innodata’s other actions—including the immediate request for

payment by letter dated December 21, 2016, and its subsequent assertion of counterclaims in this

action to recover the unpaid sums—demonstrate an intention to hold Dey to his promises, not the

13 There is no dispute that the terms of the Promissory Note are governed by New Jersey law. (See Promissory

Note at 1 (“This Note . . . shall be construed, governed and enforced in accordance with the laws of the State of New

Jersey.”)).

opposite. (See Novero Decl., Exhibit I; D.E. No. 82). Accordingly, Dey’s argument regarding

waiver is unpersuasive.

The Court notes, however, that the outstanding loan amount is not entirely clear. Innodata

submits that as of December 21, 2016, the outstanding balance on the loan amount was $3,915.22

and that the balance as of June 15, 2020, was $4,258.42. (Def. Mov. Br. at 7; Novero Decl. ¶¶ 15–

16; Novero Decl., Exhibit I). But elsewhere, Innodata claims that the outstanding balance of the

principal loan amount is $3,780.22. (Def. Mov. Br. at 27; D.E. No. 113, Def. Reply Br. at 15).

But referring to the available paystubs, which end on November 15, 2016, it is not entirely clear

how Innodata calculated either number. Thus, while the Court finds that Innodata is entitled to

summary judgment with respect to Dey’s liability on the breach of contract claim, the Court does

not make any determination as to the amount of damages Dey owes.14

Finally, because Defendant’s other counterclaims for promissory estoppel and unjust

enrichment are duplicative of the breach of contract claim, the Court does not address them.

IV. CONCLUSION

For the foregoing reasons, Innodata’s SJ Motion is granted-in-part and denied-in-part.

Dey’s motion to strike is denied without prejudice. An appropriate Order accompanies this

Opinion.

s/ Esther Salas ______

Esther Salas, U.S.D.J.

14 Because the Court does not assess damages, the Court does not address Dey’s argument that Innodata cannot

recover attorneys’ fees. (Pl. Opp. Br. at 29).