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SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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SONA SHAH AND KAI BARRETT themselves and
Representing all others similarly situated
Index No. 113231/02
6/18/02
Plaintiffs,
Vs. SUMMONS
WILCO SYSTEMS, INC.
Defendant
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TO THE ABOVE
CAPTIONED DEFENDANTS,
you are
Summonsed to
answer the complaint served with this summons in this action.
To do so you must serve a copy of your answer upon the attorney
for the plaintiff listed below within twenty days of service of
this summons on you personally within the State of New York. If
this summons is served upon you or your agent by delivery to
another person or by any means other than by personal service
you must answer within thirty days after proof of service is
completed. Should you fail to appear and answer judgment will
be taken against you for the sums and remedies demanded in the
complaint.
Dated, New York,
N.Y.
June
18, 2002
John F. McHugh
Attorney for the Plaintiff
By: _______________
20 Exchange Place
New York, N.Y., 10005
(212) 483-0875
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
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SONA SHAH AND KAI BARRETT themselves and
Representing all others similarly situated
Index No. 113231/02
6/18/02
Plaintiffs,
Vs. COMPLAINT
WILCO SYSTEMS, INC.
Defendant
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Plaintiff Sona Shah, in her
own right and as representative of all others similarly
situated, and Plaintiff Kai Barrett in his own right and as
representative of all others similarly situated, by their
attorney, John F. McHugh, as and for their complaint herein,
allege as follows:
Parties
1. At all times hereinafter
mentioned, Plaintiff Sona Shah (hereinafter “American Plaintiff”
or “Shah”) was a New Jersey resident employed by the Defendant
at all times relevant hereto in New York City and is a United
States citizen. Miss. Shah is similarly situated to all other
United States citizen workers who were or are employed by
Defendant Wilco Systems, Inc. (Wilco), hereinafter referred to
as “American workers” or “United States citizens”. Shah
represents herself and that class of employees of Wilco and
former employees of Wilco who are United States citizens.
2. Kai Barrett is a British
citizen resident in New Jersey who was employed by Defendant al
all times relevant hereto in New York City. He is lawfully in
American Wilco employees. Mr. Barrett represents himself and
all other non-United States citizen workers employed or
previously employed by Wilco. These represented persons are
hereinafter referred to as “foreign workers” meaning workers who
are not citizens of the United States.
3. Defendant Wilco Systems,
Inc. (hereinafter “Wilco”) is a corporation with its principal
offices located in the City of New York and having an official
address at 440 Ninth Avenue, New York, New York, is a separately
incorporated New York subsidiary of a British company, Wilco
International, which is a subsidiary of Automatic Data
Processing, Inc. (hereinafter “ADP”).
CLASS ALLEGATIONS
4. This action is brought
by Plaintiffs on their own behalf and, pursuant to Civil
Practice Law and Rule V901
et seq. as representatives of the two sub-classes of the class
as defined in paragraph 5 below.
5. The class of Plaintiffs
in this case are all current and former employees of Defendant
Wilco who worked as computer programmers, systems analysts,
technicians or who in any way worked with Wilco’s software
program “Gloss” or on Wilco’s internal systems within the period
of limitations applicable to their claims prior to the
commencement of the prior action in the United States District
Court on December 13, 1999 or from and after December 13, 1996.
The class is divided into two related classes consisting of
American workers (United States Citizens) who are or were
employees of Defendant Wilco and foreign workers (non-United
States Citizens) who are or were employees of Defendant Wilco.
These foreign workers assert claims of discrimination based upon
their citizenship.
6. Plaintiffs are unable at
this time to state precisely the size of the class, but estimate
this number to exceed one hundred (100). The class is
sufficiently numerous that joinder of all of its members is
impracticable.
7. There exist questions of
law and fact common to the class with respect to the nature and
effect on employees of Wilco’s discriminatory policies on
recruiting, hiring, training, and compensation as well as the
effect of other employment practices. Among the questions
common to the class:
(a)
Whether Defendant Wilco engages in a pattern and practice
of discrimination as to its employees in the terms and
conditions of employment based upon citizenship.
(b)
Whether Defendant Wilco’s treatment of employees, based
upon citizenship constitutes unlawful discriminatory conduct;
(c)
The proper measure of damages for the class.
8. The claims of the
representative Plaintiff’s are typical of the claims of their
respective classes.
9. Other members of the
class, including current and former employees, fear retaliation.
10. Plaintiffs will fairly
and adequately protect the interests of the class. Their
interests are consistent with those of other members of the
class.
11. Certification of the
class is appropriate under one or more of the provisions of CPLR
V 901.
JURISDICTION AND VENUE
12. The action arises under
the laws of the City of New York. The Defendant is a
corporation with its principal place of business in the State of
New York. The amount in controversy exceeds the statutory limit
of the jurisdiction of all lesser courts.
13. Plaintiffs have served
a copy of this Complaint upon the City Commission on Human
Rights and the Corporation Counsel of the City of New York as
required by Section 8-502 of the Administrative Code of the City
of New York.
14. Venue in this County is
proper as all acts complained of took place in New York County
or were directed by officers of the Defendant located in New
York County.
15. This action was filed
in the United States District Court on December 13, 1999
asserting claims under both federal and state law as well as
under the Administrative Code of the City of New York. All
Federal Claims were dismissed. The court refused to retain
pendant jurisdiction on June 18, 2002.
FACTUAL BACKGROUND
16. Defendant Wilco is the
New York subsidiary of a software company with offices around
the world including New York, London, Hong Kong and Hyderbad
(India). It is a wholly-owned subsidiary of ADP. It is engaged
in interstate and foreign commerce and employs sufficient
persons in New York City to be subject to all laws relied upon
by the Plaintiffs. Wilco’s policies relevant to this matter are
set and are supervised from the offices of its parent in London,
England, but are carried out and effect employees in the City of
New York.
17. Wilco employs workers
hired in the United States, and in various foreign nations.
Wilco has established employment policies which set all terms
and conditions of employment based first upon an employee’s
citizenship and immigration status in the United States and then
based upon the employee’s professional background.
18. On or about September
16, 1996, Sona Shah was hired by Defendant Wilco in New York
City as a computer programmer, specifically to work with GLOSS,
Wilco’s software product and as in the case of some American
workers, on Wilco’s internal computer system.
19. On or about that same
date, Plaintiff Kai Barrett was hired by Wilco’s affiliated
company in London, England. He was hired as a systems
specialist to work on Wilco’s internal computer system. On or
about June 23, 1997, Plaintiff Barrett was transferred to the
New York office, i.e. to the Defendant’s employ, and traveled to
the United States.
20. At all times relevant
hereto Plaintiffs were and remained competent to fulfill the
requirements of employment at Wilco and in conformity with the
customs and usages of the industry. At all times relevant
hereto, Plaintiffs adequately performed their duties.
21. During the second week
of June, 1997 Plaintiff Shah was called into a meeting with
Wilco’s managing director, Sunil Shah, in London, and informed
that Wilco was seeking Indian workers for placement in its New
York office to displace American workers as “Americans don’t
make quality workers – they’re stupid, they’re too expensive and
difficult to control”.
22. In addition to
disparaging United States citizens, the company’s Indian
national recruitment program was shortly thereafter christened
“Operation Deli Belly”, a term by which it was referred to by
management at all times prior to Ms. Shah’s departure from
Wilco’s employ.
23. On information and
belief, unbeknownst to the Plaintiffs, at some time prior to the
date representative Plaintiffs were employed, Defendant, due to
a company culture based upon animus directed at various
nationalities, embarked upon the hiring practices above
summarized which based all rates of pay, training programs and
working conditions primarily upon the citizenship of every
worker.
24. Plaintiff Barrett
worked for Defendant Wilco while in the United States on a
training visa, remaining on the London payroll, receiving 17,000
Pounds Sterling, or about $27,000 per year, or about one third
of the prevailing market rate for the work he was doing and on
information and belief, less than half the salary of American
workers with less training. He was not in training but was
assigned to operations. He returned to London to work for a few
months before coming to work for Defendant, Wilco on an H-1B
visa in the fall of 1997.
25. Upon his return to the
United States in October 1997 Plaintiff Barrett determined that
his salary was significantly below that paid to American workers
with similar credentials employed both by Wilco and far below
those paid by other employers in the New York City region. At
that time, January of 1998, he received $42,000. His salary was
soon raised to $45,000. He requested a pay raise based upon his
knowledge of market pay rates for comparable work. He was
granted a raise from $45,000 to $48,000. That rate of pay was
about 60% of the prevailing rates of pay for similar skill
levels in the New York metropolitan area and significantly less
than Wilco paid American workers with similar credentials.
Barrett was informed by Wilco’s management that his salary was
kept well below pay rates prevailing in the New York City
regional market as Wilco did not believe Barrett could leave
Wilco’s employ due to his British citizenship and resulting
immigration status.
26. Due to its policy of
replacing American workers with foreign workers, based upon the
Defendant’s belief that Americans “…don’t make quality workers –
they’re stupid, they’re too expensive and difficult to control”,
Plaintiff Shah an numerous other American workers did not
receive requested training or work assignments. Shah, along
with several other American employees, reported to work, but was
not provided with a seat, a desk or a computer. American
workers were left idle or were assigned duties unrelated to
their skills. Foreign workers were, in contrast, trained on
advanced programs and immediately sent to job sites upon their
arrival in the United States.
27. By denying American
workers both training and work experience American workers fell
behind Wilco’s foreign workers, as well as behind other workers
in the local market, in job skills. When Wilco did assign an
American worker to a job site it would do so to justify
terminating that worker, by thrusting him or her into working
situations which required more training than Wilco had
provided. However, the American workers were at all times,
fully qualified to do the work assigned to them had they
received the reasonable amount of training generally required to
keep current in the Computer Industry, the same training which
is provided routinely by employers in the industry to all
employees and training which was provided routinely by Wilco to
its foreign workers.
28. Foreign workers arrived
at the New York office regularly. Each was immediately assigned
to either advanced training or to do work. All were sent,
directly or after advanced training, to work as consulting
technicians at Wilco’s client sites or to work on Wilco’s
internal computer systems. Foreign workers were dispatched to
work instead of, or to replace, fully competent and available
American workers.
29. In the computer
programming industry, training and experience are vital and time
wasted without gaining skills or programming experience
adversely effected Plaintiff Shah’s career and the careers of
other American workers similarly idle. Such training is the
responsibility of employers in the industry and is an unwritten
term of any employment contract or relationship between an
employee and an employer in the industry.
30. During the later part
of 1997, Defendant implemented or continued its Indian
recruitment program, “Operation Deli Belly”. In December, an
officer of the Defendant informed other officers and managers
that: “the Injuns are trained and ready to be shipped. As soon
as we tie up a few loose ends ‘Deli Belly’ begins.” A document
titled “Project Deli Belly” was thereafter circulated to
management containing detailed explanation of the procedures to
be followed to bring in the first recruits from India. Pursuant
to the company culture of blatant discrimination, the senior
management of Wilco continuously and publicly referred to Indian
citizens as “Injuns” and at all times continued to refer to
their recruitment efforts in India generally as “Project Deli
Belly”, or “Operation Deli Belly” a term used freely by
Defendant’s senior management.
31. Wilco, pursuant to and
in furtherance of its policy of reducing the number of American
workers on its payroll in a manner which would make it appear
that American workers were not available to it, denied many
American employees a Christmas bonus in 1998. Denial of a
Christmas bonus is an adverse employment related action.
32. Annual pay increases
were also limited in amount or denied to most American workers.
33. In January 1998, ten
new recruits arrived in the United States from India.
34. After two weeks of
further training the Indian recruits, Wilco terminated several
American employees to whom both work assignments and training
had been denied.
35. On April 1, 1998,
Plaintiff was fired due to her U.S. Citizenship. On information
and belief she was replaced with a foreign worker.
36. At the time of her
discharge, Plaintiff was fully qualified to discharge her
responsibilities to Wilco and was doing so competently and
within Wilco guidelines.
37. Ms. Shah and other
American workers in the employ of Wilco were replaced by foreign
workers who were no more qualified to do the work assigned.
38. Mr. Barrett and all
other foreign workers hired by Wilco were required to work for
Wilco in the United States for wages lower than Wilco’s American
workers and at rates lower than wages prevailing in the New York
City regional market due exclusively to their citizenship which
dictated their immigration status.
39. Due to Wilco’s
discriminatoy employment policies and due to a pattern and
practice of defiance of the laws specifically designed to
protect workers of the classes represented by the named
Plaintiffs, Plaintiffs and all other employees of Wilco were
similarly situated were and, on information and belief, continue
to be damaged as all the practices and policies herein
complained of continue to this day.
AS AND FOR A
FIRST CAUSE OF ACTION
40. Plaintiff Shah in her
own right and as representative of all United States citizen
employees of Wilco repeats and re-allege each and every
allegation in paragraphs 1 through 38 as if fully set forth
herein.
41. At all times relevant
hereto Plaintiff Shah, and the similarly situated class members
she represents, were and remained fully qualified to discharge
their responsibilities as employees of Wilco and did properly
and sufficiently discharge such duties.
42. At all times relevant
hereto Defendant Wilco’s policy toward workers with United
States citizenship was based upon the stated company view that
“Americans don’t make quality workers – they’re stupid, they’re
too expensive and difficult to control” which perception was
publicly expressed by Wilco’s senior management and which policy
caused Shah and all other American workers to be denied training
and work assignments and then to be discharged to be replaced by
foreign workers who, absent Wilco’s discriminatory actions were
no more qualified.
43. Defendant’s conduct
violates the provisions of the Section 8-107(1) of the
Administrative Code of the City of New York and Plaintiff here
seeks all remedies available under that law for herself and
members of her sub class as they shall be deemed by the Jury to
apply.
44. As a result of
Defendant’s wrongful actions, representative Plaintiff Shah and
all similarly situated American workers, have suffered and
continue to suffer loss of income, loss of employment benefits,
damage to reputation and career, and Plaintiff Shah and, on
information and belief, others who’s identity is unknown, have
suffered severe mental anguish and stress, humiliation and pain
and thus have been damaged in an amount not precisely determined
at this time but which is believed to exceed the statutory
requirements of this Court in diversity cases.
45. By reason of the above,
Shah and her sub-class members are entitled to judgment against
the Defendants enjoining the Defendants from any continuation of
its discriminatory practices and for a sum of money equal to the
amount of any earnings lost due to unlawful discharge and for
the damage to their marketability due to their being denied
training and work assignments while employees of Wilco. This
plaintiff can not state these figures with any degree of
accuracy at this time but the amount is believed to be not less
than $100,000 per employee per year of employment but Plaintiff
respectfully requests that the Jury consider an award of
punitive damages as the polices of Wilco were and remain part of
a pattern of discrimination and exploitation in defiance of the
laws of the City of New York, and for an amount to be determined
by the Jury for mental anguish for Shah and any other member of
the subclass establishing such damages.
46. By reason of the above
the Plaintiff Shah and members of the sub-class she represents
are entitled to an order enjoining any continuation of the
discriminatory practices herein described and to an award of a
sum equal to the damages above estimated as well as punitive
damages or such greater sum in actual damages as may be
established by each member of the sub class at trial.
AS AND FOR A
SECOND CAUSE OF ACTION
47. Plaintiff Barrett
repeats and re-alleges each and every allegation in paragraphs 1
through 46 as if fully set forth herein.
48. Plaintiff Barrett, and
all foreign workers similarly situated, was fully capable of
discharging their responsibilities as employees of Wilco at all
times. Each foreign worker had credentials an background in
computer software equal to or superior to all other employees of
Wilco.
49. All terms and
conditions of employment at Wilco were at all relevant times
dictated primarily by the citizenship and immigration status of
the employee.
50. Defendant’s conduct
violates the provisions of the Section 8-107(1) of the
Administrative Code of the City of New York. Plaintiff here
seeks all remedies available under that law for himself and
members of his sub class as they shall be deemed by the Jury to
apply.
51. Due to its unlawful
conduct Wilco obtained Barrett’s labor and the labor of all
other foreign workers at rates of pay far below market rates,
and has divested these workers of rights secured to them by the
laws of the City of New York.
52. As a result of
Defendant’s wrongful actions, representative Plaintiff and all
similarly situated workers have suffered and continue to suffer
loss of earnings and employment benefits, damage to reputation
and career and have thus been damaged in an amount not precisely
determined at this time but which is believed to exceed the
statutory requirements of this Court in diversity cases but
which are estimated to be not less than $150,000 per employee
per year employed, but Plaintiff respectfully requests that the
Jury consider an award of punitive damages as Wilco’s conduct is
part of a pattern of discrimination and exploitation of workers
in willful defiance of the laws of the City of New York.
53. By reason of the above
the Plaintiff Barrett and each member of the sub-class he
represents are entitled to an order enjoining any continuation
of the discriminatory practices herein described and to an award
of a sum equal to or in such greater sum than the damages above
estimated or such greater sum as may be established by each
member of the sub class at trial together with punitive damages.
AS AND FOR A
THIRD CAUSE OF ACTION
54. Plaintiff Shah repeats
and re-alleges each and every allegation in paragraphs 1 through
53 as if fully set forth herein.
55. On information and
belief, Plaintiff Shah, and all other American workers, whom she
represents herein, and Defendant Wilco entered into employment
agreements wherein the Plaintiff and others similarly situated
were hired as computer programmers for the express purpose of
servicing clients of Wilco and/or maintaining, improving and
developing internal and customer service software products.
56. Plaintiff Shah, and all
others similarly situated, performed in accordance with the
understanding and agreement reached with Defendant and fully
complied with all of their contractual obligations.
57. It is understood that
employees will be provided with work in lime with their level of
skill and will be provided with sufficient training to
facilitate maintenance of skill levels in the face of changing
technology in all employment relationships in the information
technology industry. It is understood that for the mutual
benefit of the employer and employee, all computer programmers
must be kept abreast of the major changes in their industry on
an ongoing basis. Trying to maintain skill levels required to
keep pace with the increasing sophistication of programs as they
or improvements in them become available is an understood and
necessary term of all employment contracts in the computer
software industry.
58. An understood privilege
of employment is the gaining of experience suitable for
maintaining an employee’s employablility in the market.
59. Defendant breached its
contract with the Plaintiff Shah and all other United States
Citizen workers by refusing to train such workers and by
refusing to assign them to work due to their status as United
States Citizens.
60. By reason of the
foregoing, and as a result of Defendant’s acts, Plaintiff Shah
and members of this sub-class have been damaged in their ability
to find employment in the market place after their termination
by Wilco due to their resulting lack of skill levels
commensurate with their years of employment experience.
61. By reason of being kept
idle and due to the refusal to keep Shah and others similarly
situated trained on needed software and improvements or changes
therein, as is expected by standards of conduct generally
accepted in the industry and inferred in all industry employment
agreements, Plaintiff Shah, and all other United States Citizen
workers have been damaged in an amount which can not be
accurately stated here but which is estimated to exceed $100,000
per worker per year of employment at Wilco.
62. By reason of the above
the Plaintiff Shah and all others similarly situated are
entitled to a judgment in a sum equal to the estimated value of
the loss of their employability resulting from Wilco’s breach of
the employment agreement now estimated to be more than $100,000
per employee per year employed or such greater amount as each
member of the sub class may establish at trial and as Wilco’s
actions were taken pursuant to a pattern and practice of
discrimination and exploitation of worker in defiance of the
laws of the City of New York, Plaintiff Shah and all others
similarly effected should be entitled to an award of punitive
damages.
WHEREFORE, Plaintiff
respectfully requests an order that this action be allowed to
proceed as a class action with the Plaintiffs as representatives
of two subclasses of employees of Wilco: Sona Shah representing
American citizen workers and Kai Barrett representing all
foreign workers and each Plaintiff individually demand judgment
against Defendants enjoining the discriminatory practices
hereinabove complained of and appointing a special master to
oversee such practices for such period as this Court shall deem
adequate to assure eradication of the practices in question and
the ongoing fair treatment of all present and future employees
and for monetary relief as provided by the Administrative Code
of the City of New York as found to be established, applicable
and appropriate by the Jury:
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