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GREENBAUM v. HANDELSBANKEN

September 8, 1999

VICTORIA GREENBAUM, PLAINTIFF,
v.
SVENSKA HANDELSBANKEN, NY, DEFENDANT.



The opinion of the court was delivered by: Sotomayor, Chief Judge.[fn1]

OPINION AND ORDER

Defendant Svenska Handelsbanken, N.Y. ("SNY") moves under Rule 50(b) of the Federal Rules of Civil Procedure for judgment as a matter of law vacating a jury verdict in favor of plaintiff Victoria Greenbaum on her claims of sex discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the equivalent provisions of the New York State Human Rights Law and the New York City Administrative Code. In the alternative, SNY moves to reduce the jury's compensatory damage award of $320,000 by $181,303 because the jury awarded damages for activities that allegedly occurred outside the relevant statute of limitations. SNY also moves to vacate the $1.25 million punitive damage award granted by the jury as unsupported by the evidence or, alternatively, to remit a substantial portion of the award as excessive. Finally, SNY moves to vacate the entire jury verdict on the ground that Greenbaum's counsel allegedly committed various prejudicial errors during the trial. For the reasons to be discussed, the Court denies all of SNY's motions.

BACKGROUND

All of the events relevant to this case occurred in the period beginning in late 1987, when SNY first hired Greenbaum, and ending in April 1995, when SNY terminated her employment. The following facts are either undisputed or could have been found by a reasonable jury.

A. SNY's Corporate Culture and the Vice Presidential Position

Defendant SNY is the New York branch of Svenska Handelsbanken, AB ("SHB"), an international banking corporation headquartered in Stockholm, Sweden. SHB has had more than 500 employees during all the times relevant to this action. In May 1987, SNY opened up as a startup branch with approximately fifteen employees, and by the end of 1994, the branch had approximately eighty employees.

In its corporate brochure, SUB described itself as a highly decentralized organization, consisting of a network of local branches, which had nearly complete autonomy to govern their internal affairs and client relations. The brochure stated that "[a] decentralized organisation [sic] . . . requires a strong corporate culture" and a "clear set of instructions." JT 41 at VG678.*fn2 Part of SHB's "strong corporate culture" was the ambition to "grow its own leaders," and "[a]s far as possible, promotion [was] done internally." Id. at VG682. Furthermore, according to SHB's brochure:

    Our aim is to hire the best people and to keep
  them in the bank until they retire. Exceptions to
  this rule are usually signs of a failure. . . We
  might have hired somebody who proved to be a
  disappointment. Or we might have failed to offer a
  good person a sufficiently challenging job.

Id.

From the beginning of 1987 and ending in 1994, Greenbaum consistently sought but was consistently denied the position of vice president. Throughout this time, SNY had a number of vice presidents, and Bengt Ragna, one of SNY's key witnesses and its GM from 1991 to 1994, testified that there were no formal quotas on this number. See Tr. at 1235.*fn3 In principle, employees could be promoted to vice president without any substantial changes in duties or responsibilities, and these promotions were thus largely changes in title and status. See id. at 1276. To obtain the title, an employee ordinarily needed a "strong recommendation from a senior person, [the candidate's] superior." Id. at 1217. Ragna articulated six criteria that he used to assess candidates. These criteria, which "were not written in stone" but instead derived from the "culture of the bank" and the "heritage that [he] ha[d learned] as a general manager coming from the Swedish part of the bank," id. at 1203, included: (1) whether the bank would be comfortable having the individual represent the bank; (2) a strong performance record; (3) a good management record; (4) whether the person can be a good role model; (5) the importance of the job to SNY; and (6) dedication to the job. See id. at 1205-09.*fn4 In practice, however, supervisors' recommendations were given strong deference and were rarely rejected. See id. at 1044-46, 1123-25.

  B. Greenbaum's Employment and Her Attempts to Obtain the Title
     of Vice President

1. The Initial Interview and Employment

In September 1987, John Pyron, senior vice president and head of SNY's treasury department, see id. at 89-90, and John Amoroso, vice president in charge of the money market and corporate desks, see id. at 88, interviewed plaintiff Greenbaum for a senior money market trader position in the treasury department, see id. at 91-92, which was one of the branch's main profit centers, see id. at 1202. During the interview, Pyron and Amoroso discussed job responsibilities, benefits, title and salary, and Greenbaum, who was then employed as an assistant vice president. at another company, expressed interest in joining the bank with the title of vice president. See id. at 92-93. Pyron explained that although SNY was hiring for a vice-presidential level job, he would be unable to offer her that title from the start. See id. at 93. He indicated, however, that if she were to accept an offer of employment with SNY, she would be given the title after her first annual review in December. See id. Shortly after the interview, Pyron and Amoroso discussed Greenbaum's candidacy, agreed that she was qualified for the position, and Pyron offered her a position as assistant vice president. See id. at 94-95. Greenbaum accepted and began work under Amoroso on September 28, 1987. See PX 1.*fn5

  2. The Early Attempts to Obtain Vice President Status as a
     Trader

Three months later, in December 1987, the GM committee, which included Pyron, discussed Greenbaum's promotion to vice president but decided that it would defer its decision until March 1988, when she could be reviewed on the basis of six months' performance. See Tr. at 98-99. Amoroso was nevertheless asked to fill out a preliminary review for her. Greenbaum had already made money for SNY at the time, and Amoroso's review stated that:

    Vicky in her short time with Svenska has
  contributed her expertise and excellent analytical
  skills in organizing and maximizing the potential of
  the deposit book. Vicky also has been instrumental
  in managing the short-date trading, both in training
  and in actual trading strategies. To be reviewed
  March 1988.

PX 1; see also Tr. at 101. Pyron concurred in this review and explained to Greenbaum that her promotion would not occur until March. See Tr. at 102.

In March 1988, Amoroso filled out a more extensive review of Greenbaum's performance to date, which stated that "Vicki has proven that she can properly head the money market and corporate desks when her supervisor [i.e., Amoroso] is not in." PX 2 at SNY000063A. The evaluation also recommended her for a promotion to vice president:

    Vicki has demonstrated an excellent knowledge of
  sophisticated markets, an expertise in trading them
  and the managerial style to motivate the desk. She
  also readily offers her technical skills to the other
  traders assisting in their positions. In light of the
  above it is recommended that Vicky be promoted to
  Vice President.

Id. Pyron agreed with this recommendation, see Tr. at 110-11, and presented the evaluation to the GM committee. The committee decided not to promote Greenbaum, however, and Pyron explained to her that the committee felt that a promotion was inappropriate at that time because Greenbaum did not have any staff reporting directly to her. See id. at 111.

During the next year, 1989, Greenbaum expanded her trading activity at SNY and continued to express interest to her supervisor in becoming a vice president. At the end of the year, she was given the highest overall evaluation possible: "Results consistently far exceed job requirements." PX 4 at SNY000067a. The written comments included the following statements:

    i. Vicki has taken a small, misguided short date
  desk and efficiently turned it into a profitable,
  high volume operation through the thorough training
  and close monitering of her staff.
    ii. Vicki was instrumental in insuring [sic] that
  the BA program has been a success in spite of the
  enormous increase in volume, keeping accurate
  records, properly managing lines, limiting
  compensation problems. She has also successfully
  managed the short-date desk to operate efficiently
  and profitably.
    iii. Vicki's responsibility in managing the deposit
  book is of prime importance to the bank and she has
  successfully achieved profit targets in a difficult
  market. She has proven to be an excellent manager in
  training her staff and making the short date
  operation profitable.
    iv. Through Vicki's market expertise and the
  respect she receives from the other traders, Vicki
  is able to manage the desk while I am out. In light
  of the above, I recommend Vicki be promoted to Vice
  President.

PX 4 (emphasis added). Pyron agreed with this recommendation and again took it to the GM committee, which again decided not to promote Greenbaum. See Tr. at 119-121, Pyron explained that the committee had decided a promotion was inappropriate at that time because vice presidents could not report to other vice presidents at SNY, and because Amoroso, her direct supervisor, was a vice president. See id. at 121. Amoroso testified at trial that this explanation did not make sense in the context of SNY's corporate culture, see id., and that there had been several examples of vice presidents reporting to other vice presidents at the bank. See id. at 121-22; see also id. at 499, 1276.

In the next year, 1990, Greenbaum continued trading in the treasury department, where she supervised at least three persons, Freddie Koveath, Russ Pidgeon and Chuck Munziata. Id. at 620. Amoroso testified that Greenbaum was "directly responsible for a large part of [the bank's] profits in [1990]." See id. at 184. At the end of the year, Greenbaum thus received the highest possible overall evaluation once again. The evaluation stated, among other things that:

    i. Vicki has been very successful in substantially
  increasing the bank's profitability in 1990 by good
  trading positions, active management of the
  short-term gap and also emphasis on

  the profitable (and relatively riskless) over-night
  positions.
    ii. She is directly responsible for a large part of
  the Treasury's profits this year. As the bank has
  grown, so have Vicki's responsibilities and she has
  successfully managed the increased demands of a
  larger balance sheet. In light of the above, I
  recommend Vicki be promoted to Vice President.

PX 5 (emphasis added). Pyron agreed with Amoroso's evaluation once again and took it to the GM committee, which once again decided not to promote Greenbaum. See Tr. at 187-88. Pyron told Greenbaum that she was not given the title this time because the GM committee felt her "desk wasn't big enough, that [she] didn't have a vice-presidential job." Id. at 62

3. Move to the Systems Department

In 1991, Greenbaum was taken off the money market desk and transferred to the position of assistant deputy treasurer under Stefan Tunguz, who was deputy treasurer at the time. See id. at 623-24. Greenbaum expressed an interest in continuing to trade for the bank and asked Pyron and Tunguz whether the new job would be merely administrative. Tunguz told her that although her new position was in the systems department and was partly administrative, she could continue to do some trading under him, and that someone with her experience was needed to get the systems department off the ground. See id. at 625-26. He also indicated that if she did a good job, she would still make vice president at the end of the year. See id. at 626. When December came, Tunguz gave Greenbaum an average evaluation, which stated that she "met all standards" at her new position. PX 6.

During 1991 and for some time thereafter, Tunguz, together with two other male members of his department, Dominick Carollo, a vice-president, and Chris Patronis, a trader, were reported frequenting strip and topless clubs and recounting their visits in graphic detail in the office. Greenbaum and other women in the department repeatedly complained about this activity. See, e.g., Tr. at 236-39, 688-91. Carollo also reported to Greenbaum that another woman trader, who had been interviewed by Tunguz and Carollo, was not to be hired in the department because "[y]ou know how they feel about women in the bank." Id. at 693-94.

After Tunguz's evaluation of Greenbaum, the GM committee gave many of the other employees at SNY nearly 100% bonuses but gave Greenbaum a bonus of only $3,000. Greenbaum received no raise and no promotion to vice president. Id. at 627.

At this point, Greenbaum met with Ragna, who was the GM at the time, and asked him directly for an explanation as to why she was treated in this way. Ragna told her that the decision was not really his and that she should talk to Pyron and Tunguz. See id. at 632-33. Pyron, however, indicated that Ragna had the final say over these matters, and "that I [Greenbaum] [was] lucky even to get a $3,000 bonus" given that Ragna "had his own numbers" and initially wanted to give her no bonus at all. Id. at 634, In addition, although Greenbaum had been expecting to return to the trading desk shortly after this time, Pyron indicated that this probably would not happen at SNY and confided that he "th[ought] [she] should get [her] resume together." Id.

In 1992, Greenbaum continued her systems and administrative duties under Tunguz. See id. She repeatedly told Tunguz that she would like to return to trading and become a vice president. See id. at 649. On October 6, 1992, Tunguz asked her to get involved in some of the bank's swap trading by helping to supervise Meg Uyeno, who was then in control of the branch's swap portfolio. See id. at 636-37. Carollo, who was present during Tunguz's conversation with Greenbaum about the new assignment, expressed concern about two women working together. See id. at 639. At the end of the year, Tunguz reviewed her overall performance as "excellent," but again Greenbaum received no promotion. PX 7*fn6

4. Restoration to the Trading Desk

In 1993, Greenbaum was finally restored to the trading desk. See Tr. at 210. Greenbaum was very successful during this year, earning almost $2 million in profits for the bank. Id. at 211. Tunguz and Amoroso reviewed her very highly, calling her performance "remarkable," PX 8, and both agreed to recommend her for the title of vice president, see Tr. at 216-17. Tunguz even went so far as to tell Greenbaum, "I don't see how they can say no to [your promotion] this year, Vicky, with profits like this." Id. at 649. Nevertheless, Greenbaum was not promoted. Id. at 217-18. This time, no reason was given and Ragna, the GM at the time, apparently simply rejected the idea and brushed off Tunguz's attempt to obtain an explanation with a dismissive hand gesture, Id. at 653-54.

C. The Complaint and SNY's Subsequent Employment Actions

On January 6, 1994, shortly after learning that SNY was not going to promote her once again, Greenbaum filed a complaint with the New York State Division of Human Rights ("NYSDHR") charging SNY with employment practices that discriminated against her on the basis of her age and sex, both in violation of the New York State Human Rights Laws. See PX 65. The NYSDHR scheduled a conference with the parties to review the matter on April 19, 1994. See Tr. at 658. This conference, which was later rescheduled for May 9, 1994, was held at the NYSDHR's offices at 125th Street in the Harlem section of Manhattan, with SNY officials present, including Ragna, Roberts and Kraig Klosson, senior vice president in charge of administration and systems. See id. at 659. SNY was accompanied by counsel at this meeting, and at trial. Ragna explained that SNY had contacted counsel to ensure that SNY complied with all of its legal obligations. See id. at 1156. Following Greenbaum's complaint, Ragna also undertook to explain to various SNY officials both the seriousness of the retaliation laws and how the laws protected Greenbaum. See, e.g., id. at 987-89. SNY's policy handbook contained a section on equal employment opportunities, which explicitly prohibited "all forms of retaliation." Id. at 980.

Shortly after the conference, Tunguz left SNY, and Amoroso was promoted to Tunguz's position of treasurer, thereby leaving open the position of deputy treasurer. See id. at 218-19. In May 1994, Ragna, the then GM, and Roberts, the deputy GM, called Amoroso in to a meeting and informed him that they had decided to make the position of deputy treasurer available. See id. at 219-20. They also described the qualifications they were seeking. See id. at 220. Because Greenbaum had already been performing many of Amoroso's prior duties when he was away, see id. at 748, and because he felt she was well qualified, Amoroso recommended Greenbaum, see id. at 220. Ragna and Roberts reacted "very negative[ly]" to this suggestion:

    Mr. Ragna said no immediately and Mr. Roberts
  started yelling and saying, do you know what she
  has done to us . . . she has filed a complaint
  against the bank and she took us up to Harlem for
  some meeting and inconvenienced us and is trying to
  hurt the bank so how can you suggest someone like her.

Id. at 220-21. When Amoroso asked what Roberts's comment meant, Roberts "said that she had filed some complaint against the bank . . . [and that] both he and Mr. Ragna were very upset about it, so they said absolutely not Mrs. Greenbaum, we wanted someone new or outside the bank." Id. at 221.

Amoroso was then instructed to talk to Joyce George, who was in charge of personnel, to draw up an official job posting for deputy treasurer. See id. at 222. During their conversation, George told Amoroso that "she admired [him] for recommending Mrs. Greenbaum and that . . . it was admirable of [him] to suggest it because she knew that [Amoroso] knew it would hurt [him] eventually." Id. at 223. Several other bank officials also. discussed Greenbaum's complaint with Amoroso and one official told Amoroso that he should not push Greenbaum for the deputy treasurer position. See id. at 224-230. That official explained that such an action would be "looked on very badly by Stockholm," because "it was unheard of in Sweden" to "file a complaint against your employer." Id. at 226.

Although Amoroso testified that SNY officials never asked him to treat Greenbaum any differently in the ensuing period, see id. at 285, they asked him to watch her very closely and repeatedly inquired about her performance and attitude, see, e.g., id. at 225, 228-30, 285. Amoroso repeatedly responded that she was working well and hard, id. at 226, 228, and told them that she "made money even in 1994," id. at 229. In January 1994, Greenbaum made approximately $128,000 for the bank. See PX 80a. From December 1993 through the end of February 1994, she made approximately $658,540 for the bank. See PX 80b. There is no evidence suggesting that Greenbaum stopped making profits for SNY at any point while she worked at the bank as a trader.

In or around October 1994, SNY underwent a reorganization, and the branch was divided into an "HMT" (treasury) and an "HMX" (fixed income) division. The former dealt primarily with investments with maturities of one year or less, and the latter dealt primarily with interest rate securities with maturities of greater than one year. See id. at 664, 666, 990; see also JT 1. Although Greenbaum had experience with both types of investments, see Tr. at 667, and although there was a vacancy in the money market desk in the HMT division, see PX 76 at 000824, SNY placed Greenbaum in the HMX division, see JT 1. That division was managed by the central treasury in Stockholm, see JT 13, and Greenbaum reported directly to Stephen Downes, who was the new head of the New York HMX desk, see Tr. at 989. By placing Greenbaum with the HMX division, SNY effectively separated her from the great bulk of its traders: excluding division heads, seventeen employees were placed in the HMT division and only three — Victoria Greenbaum, Meg Uyeno and Russ Pidgeon — were placed in the HMX. Uyeno was on maternity leave at the time. Like Greenbaum, she had a complaint pending with the NYSDHR, alleging sex and age discrimination against SNY. See Tr. at 990.

On February 24, 1995, the NYSDHR determined that it had jurisdiction over Greenbaum's complaint and issued a finding of probable cause that SNY had engaged in or was engaging in unlawful discriminatory practices against Greenbaum. See PX 65. Four months after being placed in the HMX desk and less than two months after the NYSDHR's determination of probable cause, Greenbaum received a letter from Downes, dated April 10, 1995, which informed her that she was being terminated as part of a general phase-out of New York's HMX division. The letter stated:

    The Handlesbanken Markets division HMX has decided,
  after due consideration and consultation with local
  management, no longer to operate a trading desk in
  New York.
    Therefore, I am very sorry to inform you that the
  duties you currently perform for the Bank will no
  longer be required after April 28th 1995. This action
  is in no way critical of your personal performance
  and I wish to thank

  you for the hard work and professional ability you
  have given to the Bank.

JT 11.

At trial, Ragna, SNY's GM from 1991 to 1994 and a long-time employee of SUB, testified that if a "person's job was eliminated [at SNY], an effort was made to find a new position for that individual within the bank" and that the bank generally tried to "minimize any difficulty for the individual." Tr. at 1241. He also stated that he could not recall any individuals who were asked to take a reduction in salary upon being assigned a new position under these circumstances. See id. at 1242. Greenbaum's termination letter did indicate that a position would be posted in the near future to help manage a portfolio for the central treasury and that Greenbaum would be welcome to apply. After receiving this letter, Greenbaum met with Downes and George to discuss her termination and the possibility of applying for this unposted job. See Tr. at 672. Downes described the new position as mainly administrative, see id. at 673, and Greenbaum, who was making $107,000 per year at the time, subsequently received a letter from George informing her that the position would be in the salary range of only $60,000 to $75,000 per year, see id. at 674-75. Greenbaum decided not to apply for the job, and her tenure with SNY ended on April 28, 1995. See id. at 676. Pidgeon, who was the only male in the recently phased-out HMX division and who had been making only $62,500 per year, applied for the position, obtained it and procured a salary increase of $5,000. See JT 31 at 003114. Uyeno, who was the other woman in the HMX division and who had also filed a discrimination complaint against SNY, was terminated on April 28, 1995. See Tr. at 679.

D. The Prior Proceedings

On May 26, 1995, Greenbaum brought this action against SNY claiming that SNY violated her rights under Title VII of the Civil Rights Act of 1964 and the equivalent provisions of the New York State Human Rights Law and New York City Administrative Code. In particular, Greenbaum alleged that SNY engaged in a continuing violation of her civil rights by consistently refusing to promote her to vice president because of her sex and age in the years 1988 to 1994, and by refusing to increase her salary and benefits in a manner commensurate with this position. Greenbaum also claimed that she had been subjected to a hostile work environment because of her sex during this period. Finally, Greenbaum claimed that SNY retaliated against her by falling to promote her to deputy treasurer in 1994 and by terminating her in 1995, all because she filed an administrative complaint with the NYSDHR and participated in its subsequent investigations.

The Court held a jury trial from April 28 to May 12, 1997. Because the appropriate burden of proof for establishing punitive damages was unclear under state law, the Court charged the jury under both a preponderance-of-the-evidence standard, which was applicable under Title VII, and a clear-and-convincing evidence standard, which some state courts had suggested was applicable under state law. On May 16, 1997, the jury rendered a verdict finding in favor of Greenbaum on her claims of sex discrimination between 1989 and 1994 (i.e., for six of the seven years alleged) and retaliation, but against her on her claims for sexual harassment and age discrimination. The jury awarded Greenbaum $320,000 in back pay, refused her any front pay, and decided that punitive damages in the amount of $1,250,000 were warranted by a preponderance of the evidence but not by clear and convincing evidence.

  After receiving post-trial motions from the parties, the Court
held that the preponderance-of-the-evidence standard was
appropriate for assessing punitive damages under New York state
law. See Greenbaum v. Svenska Handelsbanken) N.Y, 979 F. Supp. 973
 (S.D.N.Y. 1997). The Court also held that the jury's back

pay award included prejudgment interest and that reinstatement
and front pay were inappropriate remedies under the
circumstances. See id. Finally, the Court awarded Greenbaum
$336,778.88 in attorneys' fees, see Greenbaum v. Svenska
Handelsbanken, N.Y, 998 F. Supp. 301 (S.D.N.Y. 1998), and decided
that the applicable cap on punitive damages awardable under Title
VII in this case was $300,000, ...

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