Chui v. Publicis Groupe S.A.

Background

Wai Lun Chui sued Publicis Groupe S.A., Lion Resources Inc, MMS USA Holdings, Inc., and Epsilon Data Management LLC. He alleged age discrimination under the Age Discrimination in Employment Act; race, national-origin, and religious discrimination under Title VII; and retaliation under Title VII, the Sarbanes-Oxley Act, and the Dodd-Frank Act. Chui alleged that he was over 40, was the oldest person in his work group, and was terminated to achieve cost savings. He also alleged that he was fired after raising concerns about Epsilon’s deferred prosecution agreement and possible workplace misconduct. In addition, he alleged that the defendants discriminated against him as a Chinese Jewish Asian American and required him to work through the Sabbath.

The complaint’s opening paragraph also referred to breach-of-contract and intentional-misrepresentation claims. The court did not consider those claims because they were not listed in the complaint’s causes-of-action section, the complaint contained no factual allegations indicating that Chui was pursuing them, and Chui did not address them in opposition to the motion to dismiss.

Administrative Exhaustion

The court granted the defendants’ motion to dismiss Chui’s Sarbanes-Oxley retaliation claim under Federal Rule of Civil Procedure 12(b)(1), which concerns the court’s subject-matter jurisdiction. The court held that Sarbanes-Oxley requires a claimant to file with the Occupational Safety and Health Administration within 180 days of the alleged retaliation or learning of it. Chui did not allege that he filed an Occupational Safety and Health Administration claim, and he did not dispute that he failed to exhaust that administrative remedy. The court therefore concluded that it lacked subject-matter jurisdiction over the Sarbanes-Oxley claim.

The court also held that Chui’s Age Discrimination in Employment Act and Title VII claims could be dismissed because he did not timely exhaust the required administrative procedures. Chui filed his Equal Employment Opportunity Commission charge on May 22, 2024, after the court determined that more than 300 days had passed since his termination. The Equal Employment Opportunity Commission’s June 6, 2024, right-to-sue letter stated that the charge was untimely and instructed him to sue within 90 days. Chui filed this action on September 6, 2024, more than 90 days after the letter. The court rejected his request for leniency based on his lawyer’s workload, finding that he had not shown the extraordinary circumstances and reasonable diligence required for equitable tolling.

Merits of the Pleaded Claims

The court separately addressed the sufficiency of the ADEA and Title VII allegations under Rule 12(b)(6), which tests whether a complaint states a legally sufficient claim.

For the ADEA claim, the court granted the motion to dismiss because Chui did not provide facts supporting an inference that age was the reason for his termination. He alleged termination for cost savings but did not allege facts connecting the cost savings to his age. He also did not allege age-related criticism, more favorable treatment of younger employees, or replacement by a younger employee.

For the Title VII claims, the court granted the motion to dismiss. Regarding religion, Chui alleged that he was Jewish, observed the Sabbath, and was required to work during it, but he did not explain when or how often this occurred, how the work was required, whether he requested an accommodation, whether an accommodation was denied, or whether his religion affected the termination decision. His race and national-origin claims consisted of a conclusory allegation that the defendants discriminated against him as a Chinese Jewish Asian American, without additional facts supporting discriminatory intent.

For the Dodd-Frank retaliation claim, the court granted the motion to dismiss because Chui did not allege that he provided information about a securities-law violation to the Securities and Exchange Commission before his termination. The court held that internal reports alone do not meet Dodd-Frank’s definition of a protected whistleblower report.

Leave to Amend and Disposition

The defendants asked the court to dismiss the claims with prejudice and without allowing amendment. The court instead stated that Chui should have an opportunity to seek leave to amend with the benefit of the court’s reasoning. The court’s dismissal operates without prejudice. Chui may move for leave to amend by October 23, 2025, and must include a proposed redlined amended complaint and explain how the amendment would cure the identified deficiencies. If he does not timely seek leave to amend, or if the court denies the request, the dismissal will be with prejudice.

Judge Analisa Torres concluded that the defendants’ motion to dismiss was granted and directed the Clerk of Court to terminate the motion at ECF No. 25.