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:

                                    1.  For an award of damages for lost economic opportunity of approximately $100,000 per American class member, including Plaintiff Shah, per year employed, as we as such amount as each employee may establish for other injuries related to Defendants unlawful conduct, or such greater amount as the Jury may deem appropriate under the applicable law 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, on the first cause of action together with punitive damages.

                                    2.  For an award of damages for lost wages, back pay and economic opportunity of approximately $150,000 per Foreign class member, including Plaintiff Barrett, per year employed or such greater amount as the Jury may deem appropriate under the applicable law on the second cause of action together with punitive damages.

                                    3.  For an award of damages of approximately $100,000 per American class member per year employed or such greater amount as the Jury may deem appropriate under the applicable law on the third cause of action together with punitive damages.

4.      As well as costs and attorneys fees as provided by law.

 

 

Dated:  New York, New York

            June 18, 2002

 

                                                                                    John F. McHugh

                                                                                    Attorney for Plaintiffs

 

                                                                                   

                                                                                    By: ___________________

                                                                                    John F. McHugh

                                                                                    6 Water Street, Suite 401

                                                                                    New York, New York  10004

                                                                                    (212) 483-0875

To:       Debbi Debiak

            Grotta, Glassman & Hoffman

            75 Livingston Ave.

            Roseland, N.J. 07068

 

            Human Rights Commission

            Of the City of New York

            40 Rector St.

            New York, N.Y. 10006

 

            Corporation Counsel of the City of New York

            100 Church Street

            New York, NY 10007

 

 

12/01/07