United States District Court, S.D. New York
May 19, 2004.
FAROUK SOLIMAN, Plaintiff, -against- DEUTSCHE BANK AG, Defendant
The opinion of the court was delivered by: CONSTANCE MOTLEY, Senior District Judge
This case arises out of plaintiff Farouk Soliman's employment with
defendant Deutsche Bank. Plaintiff charges defendant with race
discrimination, sexual harassment, and retaliation in violation of New
York City Human Rights Law, § 8-107(7), 42 U.S.C. § 2000 et seq., ("Title
VII"), and New York State Human Rights Law, § 290 et seq. Defendant moves
for summary judgment dismissing all of plaintiff s claims. For the
reasons stated below, defendant's motion is GRANTED.
Plaintiff Farouk Soliman, an Egyptian American male, was hired by
defendant Deutsche Bank (hereinafter "the Bank") in August 1995. Soliman
Dep. at 14, 549-50. In early 1999, Olaf Pletzinger hired plaintiff as a
Vice President and Senior Project Manager in the Bank's Inhouse
Consulting Group ("IHC"), a project-oriented group providing consulting
services. Def.'s Rule 56.1 Stmt, ¶ 1; Soliman Dep. at 15-16, 21. Around
the same time, Pletzinger also hired Marc McKenzie as the other Senior Project Manager in IHC. Def.'s Rule 56.1
Stmt, ¶ 2. Pletzinger, Soliman, and McKenzie constituted the senior
management of IHC, with Soliman and McKenzie reporting directly to
Pletzinger. Soliman Dep. at 24; McKenzie Dep. at 9. In turn, junior
consultants reported to Soliman and McKenzie.
A. Sexual Harassment
Plaintiff avers that Pletzinger, an allegedly homosexual male, began to
sexually harass him from the first day of his employment with IHC in
1999. Complaint at ¶ 15. At the same time, he and Pletzinger "enjoyed
a good working relationship from both a personal and professional
perspective" until late in 2000 when either he learned of Pletzinger's
purported sexuality or he declined to accompany Pletzinger to a "gay
bar." Soliman Dep. at 517-518. At that time, he realized "in hindsight"
that Pletzinger's acts were sexual advances. Id. at 130, 396.
1. Plaintiff's evidence of harassment
Plaintiff points to the following to substantiate his claim of
Social Interactions. Plaintiff accompanied Pletzinger and other Bank
employees to a "gay bar" at Pletzinger's suggestion on two occasions.
Id. at 70-74. Pletzinger invited him to a bar to celebrate his birthday
in October of 2000, suggesting the same "gay bar" as an option, but
Soliman declined. Id. at 77, 396, 518. Pletzinger asked Soliman to go out
with him after happy hours, from which Soliman inferred that Pletzinger
was inviting him to the same "gay bar," although Pletzinger never
explicitly said so. Id. at 59-60. Pletzinger invited Soliman to the
movies 10-20 times, to his home, or invited himself to Soliman's home.
Id. at 109-10, 144-45. Soliman interpreted these invitation as sexual
advances, even though Pletzinger never said or did anything to indicate
that anything sexual would take place. Id. at 111. Pletzinger invited
himself to social events such as ski trips and barbecues at which Soliman
was present without Soliman having invited him, although Soliman also
acknowledges that other Bank employees could have invited Pletzinger.
Id. at 63-64, 160-64. Soliman claims that on a ski trip in Vermont in
January of 2000, Pletzinger assigned sleeping accommodations such that he
and plaintiff would sleep in the same room, although the room had two
beds and everyone else on the trip shared a room with one other person in
the same fashion. Id. at 191-94. Moreover, he states that Pletzinger
invited himself on Soliman's vacations, suggesting that he and Soliman
meet up or stay in the same hotel in separate rooms when they were both
going to be in the same European city. Id. at 132.
Touching & Physical Proximity. According to plaintiff, Pletzinger
moved his chair to sit close to Soliman in Soliman's office, leaving
approximately six inches between them, and often would not move away when
Soliman asked him to. Id. at 97-100. Soliman further claims that at IHC
meetings, in the context of talking about team-building, Pletzinger said
that they had a "close relationship" while he touched plaintiff's
shoulders, thereby implying to his co-workers that they were "close" on
an intimate level, not in terms of their work. Id. at 179-84. Although he
was present at these meetings, McKenzie does not recall Pletzinger
putting his hands on Soliman's shoulders. McKenzie Dep. at 133. Soliman also claims that
Pletzinger touched him above his elbow on a number of occasions, in a
fashion that Soliman characterizes as both "playful" and "the way I'd
grab my girlfriend's arm," but Soliman always pulled away. Soliman Dep.
at 105, 119. Soliman's then-girlfriend, Nina Ostrovsky, who also worked
at IHC as a junior consultant, does not recall Soliman telling her that
Pletzinger touched him, nor did she ever witness Pletzinger touching him,
on the arms or otherwise. Ostrovsky Dep. at 51. Similarly, McKenzie never
saw Pletzinger touch any part of Soliman's body in any way, nor did
Soliman ever tell him that Pletzinger did so. McKenzie Dep. at 127, 136.
Favorable Treatment. In early 2000, Pletzinger awarded Soliman a
$120,000 bonus which Soliman felt was disproportionate to his $50,000
bonus from the previous year. Soliman Dep. at 208-210. However,
Pletzinger similarly increased McKenzie's bonus that year, raising it
from $50,000 or $60,000 in 1999 to $200,000 in 2000. McKenzie Dep. at
171. Soliman also claims that Pletzinger stated that he was considering
nominating Soliman to become a director because Soliman had befriended
him. Soliman Dep. at 208-211. Soliman also believed Pletzinger was
expressing an improper preference for him by leaving Soliman in charge
whenever he was out of town because Pletzinger could have just as easily
left McKenzie in charge. Id. at 219. Finally, Soliman cites as evidence
of harassment the fact that Pletzinger gave Soliman gummy bears, a
t-shirt, and a clock. Id. at 116-18.
Other. Soliman avers that Pletzinger told him that he was a "good
looking guy" "too many times to count." Soliman Dep. at 119. Soliman
claims that he saw Pletzinger looking through Soliman's backpack and desk
drawers in his office, whereupon Pletzinger claimed to have been looking
for a pen. Id. at 164, 668-69.*fn1 Pletzinger purportedly made frequent
inquiries into Soliman's personal life and told Soliman about his
personal problems. Id. at 206. According to McKenzie, Pletzinger also told
McKenzie personal information and that Pletzinger "by his very nature
asked lots of people who they were dating and what they did over the
weekend, etc." McKenzie Dep. at 77, 134. The annoying personal questions
that Pletzinger asked were questions like "Did you just come back from
lunch?" Id. at 83. Finally, Soliman claims that Pletzinger kept ski
clothes that Soliman loaned him and stated that he wanted to keep
something of Soliman's close to him. Soliman Dep. at 114. At the time of
this exchange, however, Soliman admits that he did not construe it as a
come-on, but just "sort of odd." Id. at 397.
2. Soliman's Rejection of Pletzinger's Alleged Advances
Soliman made it clear to Pletzinger that he did not want to go to gay
bars. Id. at 56. Soliman pulled himself away if Pletzinger ever tried to
touch him and "made it clear" that he did not want to have "any kind of
relationship other than a professional relationship" with Pletzinger.
Id. at 105-06, 108, 110, 119. He declined all of Pletzinger's specific
social invitations, but never specifically told Pletzinger to stop inviting him out. Id. at 112. Soliman
claims to have sent Pletzinger at least two e-mails telling Pletzinger to
stay out of his personal life. Id. at 413. Although he downloaded and
saved e-mails in a folder labeled "asshole" in his desk, the contents of
which were dedicated to "building his case" against Pletzinger, Id. at
669, the only e-mail of this nature before the court is dated December
7, 2000. In this e-mail sent to Pletzinger, Soliman creates a list of
grievances against Pletzinger, one of which is labeled "intrusion into
personal matters." He writes:
"It is quite frankly non (sic) of your business what
or with whom I have personal appointments with. When I
informed you today that I could not meet with you at
5:00 PM because I had a personal appointment, you
demanded to know what that personal appointment is.
You would not drop the subject until I told you of the
specifics of the appointments. Your assertion that you
needed to know because lately I have been having a lot
of "personal appointments" is factually incorrect and
is an infringement of my personal life."
Def's Ex. B. Soliman avers that in another e-mail he can no longer
locate, he was "more specific," and referred to "the touching, keeping a
professional relationship, not wanting him to intrude on my personal
life," in addition to using the word "harassment." Soliman Dep. at
413-14. But in this missing e-mail, he did not tell Pletzinger that he
thought Pletzinger was sexually harassing him, hitting on him, or upset
with him for rebuffing Pletzinger's sexual advances. Id. at 415.
3. The 2001 Evaluation Dispute and Pletzinger's Alleged Quid Pro Quo
In January of 2001, plaintiff and Pletzinger had a protracted dispute
about Soliman's 2000 evaluation. Id. at 287. In short, Soliman wanted to
add his own marks or rebuttal statements to the sections of his
evaluation that were supposed to be exclusively completed by Pletzinger.
Id. at 291, 294, 301; Def.'s Ex. B. Soliman eventually asked Irene
Diamant, the Director of Human Resources and the Human Resources Advisor
for IHC, if both he and Pletzinger could submit their own versions of his
evaluation. Id. at 312; Def.'s Ex. B; Affidavit of Diamant, ¶ 1, 2. She
replied in the negative, stating that the Bank could only have one
version on file, and twice told him to attach a sheet to Pletzinger's
appraisal. Id. at 313, 316-17; Def.'s Ex. B. Soliman thereupon sent
Pletzinger an e-mail that stated: "Go ahead write whatever you like
(false or accurate)." Id. at 317; Def.'s Ex. B. He asked Pletzinger to
send him the final version of the evaluation before sending it on to
Human Resources because "I did not want to give him carte blanche on a
document for him to change whatever he liked." Id. at 328.
After this dispute, Soliman and Pletzinger met in February 2001 to
discuss his 2000 evaluation and related bonus. Pletzinger gave him a
$190,000 bonus but stated that he was not recommending Soliman for a
promotion. Id. at 213-214. According to Soliman, Pletzinger told him that
"if you and I become better friends, I would still promote you." Id. From
the way Pletzinger said the word "friends," Soliman understood Pletzinger to be
implying a sexual relationship. Id. at 217. When asked for clarification
about Pletzinger's use of the word "friends," Soliman stated in his
"It was in a soft way. But the way he said it, it was
that. He says well, you know, if we improve our
working relationship. That's what he meant. To be
related to the job. Could have been simply our
relationship gets better in terms of working
together. You know, I think with the promotion, that's
not the way he said it."
Id. at 217.
4. Defendant Bank's Knowledge of the Alleged Sexual Harassment
Soliman did not complain to anyone at the Bank about Pletzinger's
alleged arm-touching, inviting Soliman to his home or himself to
Soliman's home, request to keep the clothing he borrowed for a ski trip,
or comments concerning Soliman's appearance. Id. at 107-08, 114-15, 126.
He did not forward the e-mails in which he allegedly told Pletzinger to
stay out of his private life to Diamant. Id. at 411.
Soliman points to the following as evidence that he alerted defendant
to Pletzinger's unlawful sexual harassment: During Pletzinger and
Soliman's disagreement over the completion of Soliman's 2000 evaluation,
Soliman wanted to meet with Diamant. Id. at 331. In an e-mail to Diamant
dated March 2, 2001, titled "request for a meeting on the year end
evaluation," Soliman queries whether Diamant wants to be involved in
resolving the problems relating to the evaluation and if not, if there is
someone else in HR he can speak to. Def.'s Ex. B. In an e-mail dated
March 5, 2001, Diamant replied, "I am happy to meet with you." Id. Their
e-mail correspondence thereafter shows that because Pletzinger, Soliman,
and Diamant were all scheduled to be on vacation for the remainder of
March, Diamant offers to set up a meeting between them for the first
possible date. Id. In addition to these e-mails, Soliman claims that he
left voice mails with Diamant asking to speak with her, although he did
not specify the nature of his personal problems with Pletzinger. Soliman
Dep. at 322, 324, 339.
Soliman also alleges that he asked to speak to Hans Krauss, Director of
Inhouse Consulting, who worked in Germany. He states that in a phone call
with Krauss in late February, 2001, he told Krauss that Pletzinger was
harassing him for personal reasons and that he was looking to get out of
the group, but he did not explain what the "personal reasons" were.
Soliman Dep. at 488-492. Further, Soliman claims he unsuccessfully tried
to set up a meeting with Krauss when he was in New York, although he did
not tell Krauss that Pletzinger's purposed sexual advances were the
reason why he needed to talk to him. Id. at 493-495.
Finally, Soliman told Ken Kennedy that Pletzinger harassed Soliman
because Soliman tried to keep Pletzinger out of his personal life.
Soliman Dep. at 496. B. Race Discrimination
Soliman claims that Pletzinger called Soliman a "natural salesman"
"like all Arabs in a bazaar that sell," someone referred to him a "sand
nigger" when he walked down the hall, and he heard Pletzinger make a
statement that "all black people are good for is dancing." Id. at
Soliman did not report these comments to Diamant, but he avers that in
an off-site conference in Vermont, he and Diamant had a general
discussion about having to have a "thick skin" in the banking
environment. Id. at 545-46.
C. Plaintiff's Termination
In March of 2001, the Bank conducted an audit of cab charges and
discovered that Soliman and Nina Ostrovsky, a junior consultant in IHC
who worked with Soliman, were potentially using their corporate cab
charges to travel back and forth between one another's homes. Affidavit
of Diamant at ¶ 3. The Bank subsequently reviewed their e-mail
correspondence for January and February 2001. The e-mails contain a
number of references to an existing physical relationship, dinner plans,
Ostrovsky's mother calling Soliman while he was at work and his efforts
to conceal her voice message from his co-workers, Soliman identifying
Ostrovsky as "Sandra" on his calendar to avoid detection, and a
Valentine's Day gift of champagne and flowers. Affidavit of Diamant, Ex.
C. Most importantly, in an e-mail written by Soliman to Ostrovsky dated
January 22, 2001, entitled "your eval," Soliman included a completed copy
of Ostrovsky's evaluation, and wrote: "do you like what I wrote, if not
change as you see fit, and sign and interrofice (sic) to me." Soliman
The Bank has a policy prohibiting family members and significant others
from working in a "direct reporting or supervisory/management
relationship." Affidavit of Diamant, Ex. C. From Diamant's perspective,
Soliman and Otrovsky's relationship violated that policy. Affidavit of
Diamant at ¶ 6.
On April 27, 2001, Diamant and John Chocko, a Vice President in the
Bank's Audit Department, met with Ostrovsky. They showed her the cab
charges in question and e-mails between she and Soliman and queried
whether she and Soliman were in a relationship. Whether or not Ostrovsky
admitted to the relationship is unclear. Diamant stated in her deposition
that although Ostrovsky was hesitant and began crying at one point, she
ultimately admitted to having a voluntary relationship with Soliman.
Diamant Dep. at 162-63 (July 11, 2003). Ostrovsky, however, stated that
she described the nature of her relationship with Soliman as one of
mentorship or friendship, but she admitted that the cab rides were of a
personal nature. Ostrovsky Dep. at 112.
Immediately after their meeting with Ostrovsky, Diamant and Chacko met
with Soliman. Diamant showed him the cab charges and stated that they
appeared to be of a personal nature. Soliman Dep. at 234. Soliman denied
using his cab charge for personal reasons, suggested that he had lent his cab charge to someone else who must be the responsible
party, and offered to reimburse the Bank for the rides. Id. at 234-35.
Diamant then showed him the e-mails between himself and Ostrovsky,
including the e-mail Soliman sent to Ostrovsky about her evaluation. In
response, Soliman told Diamant that he "would not confirm or deny" a
relationship with Ostrovsky and that regardless, she was not his direct
report. Id. at 250-53. Thereafter, Diamant gave Soliman a resignation
letter which Soliman refused to sign, and told him that she would report
back to a committee so that the committee could review the findings. Id.
at 270. He was then placed on administrative leave pending the review.
Soliman claims that in this final meeting, he did not have the
opportunity to explain to Diamant that Pletzinger had been making sexual
advances towards him. Id. at 259. He told Diamant generally that he
wanted to make a complaint against Pletzinger, but she told him to put it
in writing so she could show it to the committee reviewing Soliman's
possible termination. Id. at 259-60. Soliman did not subsequently write
such a letter; instead he contacted Don Jones and asked for a personal
meeting with him. Id. at 260. He also contacted Ken Kennedy that same
day. Id. at 270.
On May 1, 2001, Soliman received a termination letter. Pl.'s Ex. F.
Pletzinger was ultimately responsible for the decision to terminate
Soliman, although the decision was also informed by Diamant, the Audit
Department, and the Legal Department. Diamant Dep. at 150 (July 11,
2003). According to Diamant, the Bank did not terminate Ostrovsky because
Ostrovsky had not altered her performance evaluation even though Soliman
invited her to do so. Diamant Affidavit, at ¶ 8.
1. Soliman's Objections to His Termination
a. Race discrimination
Soliman believes that his termination was racially discriminatory
because he was fired whereas Ostrovsky is white and she was not fired for
having violated the same policy. Soliman Dep. at 538-39. Further, he
claims that other Bank employees who were white have been in
relationships with one another and they were not terminated. He claims
that Dr. Herwig Leins, the Chief Operating Officer of Global Technology
and Services, dated Dr. Iris Baeurle, who reported directly to Soliman.
Id. at 454, 552. He also claims that Karen and Ken Newman dated and
worked in the same department, as did Cathy and Jon Franco. Id. at 554.
b. Pletzinger set Soliman up
First, Soliman claims that after he spoke to Hans Krauss in Germany
about his desire to transfer to a different department, Pletzinger told
Soliman that he knew Soliman had been talking to people in Germany. Id.
at 424. During an IHC meeting on March 9, 2001, Pletzinger was allegedly
very hosfile towards Soliman by giving him dirty looks. Id. at 425. After
the meeting, Soliman approached Pletzinger to ask why he was being so
hosfile, and Pletzinger told him, "If you don't leave, I am going to get you fired." Id. at 427. Soliman
believes that Pletzinger must have spoken with Krauss about the
discussion Soliman had with Krauss. Id. at 427-28. He claims that he
called Krauss after Pletzinger's threat and left Diamant a voice mail
telling her that he needed to speak with her. Id. at 428-29.
Second, Soliman claims that Pletzinger learned that he and Ostrovsky
were dating in 2000. Id. at 254. Nevertheless, Pletzinger asked Soliman
to complete an evaluation for Ostrovsky that McKenzie had already
started. Id. at 34. They had a "heated argument" over who would complete
her evaluation, but Soliman eventually agreed to do it. Id. at 34.
c. He did not violate Bank policy
In his deposition, Soliman admitted that he and Ostrovsky began an
intimate relationship sometime in 2000. Id. at 455. He also conceded that
he was aware that he should avoid actual or perceived conflicts of
interest in the workplace. Id. at 454. He avers, however, that he did not
violate Bank policy by completing Ostrovsky's evaluation because she was
not his direct report. Id. at 250. He points to an organizational chart
for 2000 showing McKenzie as Ostrovsky's administrative report. Id. at
252-53. When confronted with at least three project report charts
identifying Soliman as the project manager of projects to which Ostrovsky
was assigned in 2000, Soliman stated that the project manager is not
responsible for a project's day-to-day implementation or that he was not
genuinely responsible for the project in question. Id. at 43-48.
In his deposition, McKenzie confirmed that Ostrovsky was his
administrative report in 2000. He generally completed the evaluations of
his administrative reports unless the employee worked more than half of
the time for another project manager, who would then complete the
evaluation. McKenzie Dep. 25-26. He does not recall working on any
projects with Ostrovsky. Id. at 18. Similarly, Ostrovsky testified in her
deposition that while she was working at IHC, she dealt with Soliman more
than anyone else. Ostrovsky Dep. at 18. Although McKenzie was her direct
manager, if she had a question about a project she was working on, she
would go to Soliman. Id. at 29. She worked on one project with McKenzie
during 2000, but it was a very short one. Id. at 30.
STANDARD ON SUMMARY JUDGMENT
Under Fed.R.Civ.P. 56(c), summary judgment "shall be rendered
forthwith" if it is shown that "there is no genuine issue of material
fact and that the moving party is entitled to a judgment as a matter of
law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548,
2552 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues
can reasonably be resolved in favor of either party, [while] materiality
runs to whether the dispute matters, i.e., whether it concerns facts that
can affect the outcome under the applicable substantive law." Mitchell
v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999)
(internal quotations and citations omitted). In order to prove that a
genuine issue of material fact exists, a plaintiff "may not rest upon the
mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue
for trial." Fed.R.Civ.P. 56(e). "Conclusory statements, conjecture or
speculation by the party resisting the motion will not defeat summary
judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable factual
inferences in favor of the non-moving party. See Nora Beverages, Inc. v.
Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving
party bears the initial burden of demonstrating an absence of genuine
issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110
(2d Cir. 1997). If the initial burden is met, the non-moving party "must
produce specific facts indicating that a genuine issue of fact exists. If
the evidence [presented by the non-moving party] is merely colorable, or
is not significantly probative, summary judgment may be granted." Scotto
Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and
citations omitted) (alteration in original).
Trial courts must be particularly cautious in awarding summary judgment
in employment discrimination actions where intent is at issue. Chertkova
v. Connecticut Gen. Life Ins., 92 F.3d 81, 87 (2d Cir. 1996). From this
cautionary warning, however, it does not follow that a plaintiff is
absolved from the responsibility of producing sufficient evidence from
which a reasonable jury could return a verdict in plaintiff's favor.
Welland v. Citigroup, Inc., 2003 WL 22973574, at 5 (S.D.N.Y. Dec. 17,
2003), citing Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456. 461
(2d Cir. 2001), cert. denied, 534 U.S. 993, 122 S.Ct. 460 (2001). "The
summary judgment rule would be rendered sterile . . . if the mere
incantation of intent or state of mind would operate as a talisman to
defeat an otherwise valid motion. Indeed, the salutary purposes of
summary judgment avoiding protracted, expensive and harassing trials
apply no less to discrimination cases than to commercial or other areas of
litigation." Finney v. Planned Parenthood of New York City, Inc., 2003 WL
22928730, at 3 (S.D.N.Y. Dec. 10, 2003) citing Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91
A. Race Discrimination Under Title VII and New York City and State Human
Title VII prohibits employers from discharging or otherwise
discriminating against employees in the terms, conditions, or privileges
of employment on the bases of race. 42 U.S.C. § 2000e-2(a)(1).*fn2 In
the absence of direct evidence of discrimination, a plaintiff relies on
the familiar burden-shifting test set forth in McDonnell-Douglas Corp.
v. Green, 411 U.S. 792, 803 familiar burden-shifting test set forth in McDonnell-Douglas Corp. v.
Green, 411 U.S. 792, 803-04 (1973). First, the plaintiff has the burden
of proving a prima facie case of discrimination by a preponderance of the
evidence. Second, if the plaintiff succeeds in proving the prima facie
case, the burden shifts to the defendant to articulate a legitimate,
nondiscriminatory reason for the adverse employment action. Third, if the
defendant carries its burden, the plaintiff must prove by a preponderance
of the evidence that the defendant's legitimate rationale is a pretext
for discrimination. While the burden shifts, the burden to persuade the
trier of fact that the defendant intentionally discriminated against the
plaintiff remains at all times with the plaintiff. Tex. Dep't of Cmty.
Affairs v. Burdine, 450 U.S. 248, 253 (1981).
In order to make out a prima facie case of race discrimination, Soliman
must show: 1) he is a member of a protected class; 2) he performed his
job satisfactorily; 3) the Bank took an adverse employment action against
him, and 4) the circumstances of the adverse employment action give rise
to an inference of discrimination based on Soliman's membership in the
protected class. Farias v. Instructional Systems, Inc., 259 F.3d 91, 98
(2d Cir. 2001). Plaintiff's burden at this stage is de minimis. Chambers
v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
The central dispute between the parties is whether plaintiff can offer
legally sufficient evidence to raise an inference of discrimination.
Soliman avers that he overheard someone call him a "sand nigger" in
passing, Pletzinger told him he was like an Arab selling in a bazaar, and
Pletzinger made a statement to the effect that "all blacks are good for
is dancing." While understandably offensive, even if the court accepts
plaintiff's allegations as true, these stray remarks are insufficient to
raise an inference of discrimination. Schwapp v. Town of Avon,
118 F.3d 106, 110 (2d Cir. 1997) (there must be more than a few isolated
instances of racial enmity); Hawana v. City of New York,
230 F. Supp.2d 518, 527 (S.D.N.Y. 2002) (two stray remarks do not satisfy
the fourth prong of a prima facie case).
Plaintiff also charges the Bank with race discrimination because he was
fired for violating the policy prohibiting employees in a relationship
from working in a direct reporting or supervisory relationship, whereas
Ostrovsky, who was white, and other white employees were not. A plaintiff
can raise an inference of discrimination by showing that the employer
treated him less favorably than a similarly situated employee outside his
protected group. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir.
2000). The employees to be compared must be similar in all material
respects, which means that "a plaintiff must show that [his] co-employees
were subject to the same performance evaluation and discipline standards
. . . [and] that similarly situated employees who went undisciplined
engaged in comparable conduct." Id. (internal citations omitted).
"Comparable" does not mean identical, but it does require the conduct to
be of comparable seriousness. Id. at 40. There must be a "reasonably
close resemblance of the facts and circumstances of plaintiff's and
comparator's cases, rather than a showing that both cases are identical."
Id. at 39. Whether employees are similarly situated is ordinarily a
question for the jury. Id. at 38. Here, taking Soliman's claim that Dr. Leins dated Dr. Baeurle as true,
Dr. Leins was not subject to the same Bank policy as plaintiff because
the policy does not apply to employees outside of the United States.
Diamant Affidavit at ¶ 5, 10 and Exs. B and E, attached thereto. Even if
it did, there is no evidence that like Nina Ostrovsky, Baeurle worked
directly beneath Dr. Leins or that Leins completed Baeurle's
evaluations. To the contrary, Soliman stated that Baeurle worked with
him. Soliman Dep. at 454. Although Karen and Ken Newman and Cathy and Jon
Franco. may have worked in the same department, there is no further
showing that they were in a direct reporting or supervisory relationship
like plaintiff and Ostrovsky. Equally as significant, plaintiff does not
aver that any of these employees engaged in the similarly serious and
culpable conduct of allowing the person with whom they were in a
relationship to change their performance evaluation as they saw fit. See
Soliman Ex. 25. Because no reasonable jury could find that plaintiff and
the co-workers he seeks to compare himself with are similarly situated,
as a matter of law, Soliman cannot raise an inference of discrimination
based on allegedly dissimilar treatment. See Harlen Associated v.
Incorporated Village of Mineola, 273 F.3d 494, 499-500 n.2. (2d Cir.
Because plaintiff can not make out a prima facie case of race
discrimination, defendant's motion for summary judgment on plaintiff's
Title VII and New York state and city race discrimination claims is
B. Same Sex Harassment
Plaintiff claims that Pletzinger sexually harassed him in violation of
Title VII and New York state and city human rights laws. See
42 U.S.C. § 2000e et seq.; N.Y. Exec. Law § 290 et seq.; N.Y.C. Admin.
Code § 8-107.*fn3 Title VII makes it unlawful for an employer to
discriminate against any individual with respect to the terms and
conditions of employment on account of the employee's sex. Id. It is well
settled that Title VII's prohibition on sex discrimination encompasses
same sex harassment where "members of one sex are exposed to
disadvantageous terms or conditions of employment to which members of the
other sex are not exposed." Oncale v. Sundowner Offshore Servs., Inc.,
523 U.S. 75, 79-80, 118 S.Ct. 998 (1998) quoting Hams v. Forklift
Systems, Inc., 510 U.S. 17, 25, 114 S.Ct. 367 (1993) (Ginsberg, J.,
concurring). In order to withstand defendant's motion for summary
judgment, plaintiff must point to evidence creating a genuine issue of
fact regarding whether Pletzinger's workplace conduct vis-a-vis plaintiff
was "because of [plaintiff's] sex. Id. at 79.
Here, Plaintiff points to Pletzinger's conduct and purported offer for
sexual relations in exchange for a promotion to substantiate his sexual
harassment claim. There is no need to distinguish between "hosfile work
environment" sexual harassment and "quid pro quo" harassment. See Gregory
v. Daly, 243 F.3d 687, 698 (2d Cir. 2001) (interpreting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998), and Oncale,
523 U.S. 75, 118 S.Ct. 998). "[T]hese labels, to the extent that they are
useful at all, are so merely as descriptions of varying workplace
conditions that violate Title VII's basic prohibition on sex
discrimination in terms or conditions of employment." Id. citing
Ellerth, 524 U.S. at 751-52, 118 S.Ct. 2257; Oncale, 523 U.S. at 78-81,
118 S.Ct. 998. Because allegations of "quid pro quo" sexual harassment are
merely one type of factual allegation to support a cause of action under
Title VII, the court will consider Soliman's claims of quid pro quo
harassment as part of his claims that he was subject to a hosfile work
environment by virtue of Pletzinger's conduct. See also Yerry v. Pizza
Hut of Southeast Kansas, 186 F. Supp.2d 178, 183 (N.D.N.Y. 2002) (same).
To state a hosfile environment claim, a plaintiff must establish that
the harassment was "sufficiently severe or pervasive to alter the
conditions of employment and create an abusive working environment."
Harris, 510 U.S. at 21, 114 S.Ct. 367. The conduct must have been both
objectively and subjectively offensive, meaning that a reasonable person
would find the conduct hosfile or abusive and that the plaintiff in fact
perceived the conduct as such. Id. The court must examine "all the
circumstances," including the frequency, its severity, whether it was
physically threatening or humiliating, or merely an offensive utterance.
Id. at 23, 114 S.Ct. 367. "When the workplace is permeated with
discriminatory intimidation, ridicule, and insult that is sufficiently
severe or pervasive to alter the conditions of the victim's employment
and create an abusive working environment, Title VII is violated."
Oncale, 523 U.S. at 78, 118 S.Ct. 998 citing Harris, 510 U.S. at 21,
114 S.Ct. 367. See also Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir.
2003) ("[T]he test is whether the harassment is of such a quality or
quantity that a reasonable employee would find the conditions of her
employment altered for the worse.") Although the "harassing conduct need
not be motivated by sexual desire to support an inference of
discrimination because of sex," again, it is crucial that the conduct
actually constituted discrimination on account of sex. Oncale, 523 U.S.
at 81. See also Galdien-Ambrosini v. National Realty & Dev. Corp.,
136 F.3d 276, 289 (2d Cir. 1998) (same).
Soliman avers that Pletzinger treated him favorably, touched his arm,
touched his shoulders in meetings when describing their relationship as
"close" and encouraging other IHC employees to develop similar
relationships, sat close to him, commented that he was a "good looking
guy," told Soliman he was gay, invited him to social events and an
allegedly "gay" bar on two occasions, asked him about his personal life,
and so forth. None of these acts are marked by any hint of sexual
innuendo, nor do they suggest that Pletzinger's conduct was motivated by
animus against males in the workplace. A reasonable jury could not
conclude that Pletzinger's neutral acts were motivated by Soliman's sex.
See West v. Mt. Sinai Medical Center, 2002 WL 530984, 1-2 (S.D.N.Y. Apr.
9, 2002) (Motley, J.) (granting summary judgment to defendant where the
only reasonable conclusion a jury could draw was that plaintiff's
supervisor's favorable treatment towards her and offers to take her to
social gatherings were nothing more than simple friendly gestures, not
veiled sexual advances); Moran v. Fashion Institute of Technology, 2002
WL 31288272, 6 (S.D.N.Y. Oct. 7, 2002) (plaintiff could not sustain his
claim of sexual harassment based on allegations of leering, physical
closeness, and brief touching because excessive attention, physical
proximity, or casual touching in the context of conversation is sex-neutral conduct). With respect to Pletzinger's purported statement
that he would consider nominating Soliman for a promotion if the two men
became "better friends," Soliman construed it as a sexual advance because
Pletzinger said it "in a soft way." Judged against the background of
Soliman and Pletzinger's recent disputes concerning Soliman's 2000
employee evaluation at the time the statement was made, Soliman's
conclusory allegation that Pletzinger must have meant something "sexual"
as opposed to something professional in referencing the need for them to
improve upon their relationship is insufficient to defeat summary
judgment. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("The
summary judgment rule would be rendered sterile . . . if the mere
incantation of intent or state of mind would operate as a talisman to
defeat an otherwise valid motion."). A single ambiguous statement that
may or may not have been motivated by plaintiff's sex, about which even
Soliman concedes could have been sex-neutral, is simply too thin a reed
upon which to establish a genuine issue of material fact for a jury.
Further, the conduct Soliman points to falls short of violating Title
VII as a matter of law. The court is mindful of not setting the standard
for sexual harassment too high, but even construing Soliman's allegations
in his favor, a reasonable jury could not conclude that Pletzinger's
purported favoritism of Soliman, personal questions, invitations, or
casual touching altered Soliman's employment for the worse or created an
abusive, intimidating, or hosfile working environment. See e.g., O'Dell
v. Trans World Entm't Corp., 153 F. Supp.2d 378, 386 (S.D.N.Y. 2001)
(granting summary judgment to defendant where plaintiff's evidence
consisted of invitations out on dates, gifts, compliments about
plaintiff's appearance, and written declarations of love); Feliciano v.
Alpha Sector, 2002 WL 1492139, at 8 (S.D.N.Y. July 12, 2002) (same, but
plaintiff's evidence included compliments, invitations to date, attempted
hug, a kiss, phone calls, and stated desire to "lay" with plaintiff);
Moran v. Fashion Institute of Technology, 2002 WL 31288272 (S.D.N.Y.
Oct. 7, 2002), (same, where plaintiff presented evidence of casual
touching, leering, physical proximity, and talking about plaintiff to
Because Soliman has not established a genuine issue of material fact
that Pletzinger's conduct towards him was because of his sex or
objectively offensive, the Bank's motion for summary judgment on
plaintiff's sexual harassment claim is hereby GRANTED.
Title VII and New York human rights laws prohibit employers from
retaliating against employees for complaining about employment
discrimination. See 42 U.S.C. § 2000e(3)(a); N.Y. Exec. Law § 296(1)(e).
The court analyzes his retaliation claim according to the same
McDonnell-Douglas burden-shifting analysis. Reed v. A.W. Lawrence &
Co., 95 F.3d 1170, 1178 (2d Cir. 1996). Thus, Soliman must show a prima
facie case of retaliation. If he makes such a showing, the Bank must
offer a non-discriminatory reason for the adverse employment action.
Assuming the Bank does so, Soliman must then establish that the Bank's
rationale is simply a pretext for retaliation.
To establish a prima facie case of retaliation, Soliman must
demonstrate that 1) he engaged in a protected activity that the Bank was aware of; 2) the Bank
took an adverse employment action against him; and 3) there was a causal
connection between Soliman's protected activity and the adverse
employment action taken. See Gordon v. New York City Bd. of Educ.,
232 F.3d 111, 116 (2d Cir. 2000). The Bank argues that Soliman cannot
make out the first prong of the prima facie case of retaliation because
he never alerted the Bank to Pletzinger's alleged sexual harassment.
"The term `protected activity' refers to action taken to protest or
oppose statutorily prohibited discrimination." Cruz v. Coach Stores,
Inc., 202 F.3d 560, 566 (2d Cir. 2000). See also Brands-Kousaros v.
Banco. Di Napoli S.P.A., 1997 WL 790748, at 5 (S.D.N.Y. Dec. 23, 1997)
("the protected activity alleged must involve some sort of complaint
about a type of discrimination that Title VII forbids."). Protected
complaints generally include "making complaints to management, writing
critical letters to customers, protesting against discrimination by
industry or by society in general, and expressing support of co-workers
who have filed formal charges." Id. at 566. Although a plaintiff does not
have to lodge a formal complaint to an administrative body in order to
have engaged in a protected activity, Cifra v. General Electric Company,
252 F.3d 205, 208 (2d Cir. 2001), doing so is the most obvious example of
a protected complaint. See Love-joy-Wilson v. NOCO Motor Fuel. Inc.,
263 F.3d 208, 223 (2d Cir. 2001). The form of a plaintiff's objection may
be nothing more than a simple "objection voiced to the employer," Barcher
v. New York Univ. Sch. of Law, 993 F. Supp. 177, 184 (S.D.N.Y. 1998), but
at the very least, "there must be some form of professional indicia of a
complaint made against an unlawful activity. Moran v. Fashion Institute
of Technology, 2002 WL 31288272, at 8 (telling one's supervisor to "stay
away" and "leave him alone" did not constitute a protected activity),
citing Cruz, 202 F.3d at 566 (slapping one's harasser, even assuming that
it was done in response to unlawful harassment, was not a protected
"Implicit in the requirement that the employer have been aware of the
protected activity is the requirement that it understood, or could
reasonably have understood, that the plaintiff's opposition was directed
at conduct prohibited by Title VII." Galdieri-Ambrosini, 136 F.3d at
292. Accordingly, where a plaintiff's complaint is vague or ambiguous and
does not sufficiently articulate the nature of harassment, courts hold
that a plaintiff has not engaged in a protected activity. See Sales v. YM
& YMHA of Washington Heights and Inglewood, 2003 WL 1642768 (S.D.N.Y.
Jan. 22, 2003) (because plaintiff failed to explain to the defendant
employer the racially derogatory meaning behind the ambiguous term used
by his supervisor, the defendant employer cannot be found to have been
aware of plaintiff's protected activity); West v. Mt. Sinai Medical
Center, 2002 WL 530984, 3-4 (because plaintiff did not specify that there
was anything sexual about her alleged harasser's conduct, no reasonable
factfinder could conclude that the defendant employer understood that her
complaint implicated Title VII); Moran v. Fashion Institute of
Technology, 2002 WL 31288272 (plaintiff never stated he objected to his
supervisor's conduct on the grounds of sexual harassment); Lapsley v.
Columbia University College of Physicians, 999 F. Supp. 506, 525
(S.D.N.Y. 1998) (plaintiff complained about the employer's discriminatory
promotion practices but did not articulate the basis for her belief of
discrimination). Viewing the evidence in the light most favorable to Soliman, a
reasonable factfinder could not conclude that plaintiff Soliman engaged
in a protected activity. Telling Pletzinger to stay out of his personal
life and pulling his arm away whenever Pletzinger touched him are not
protected activities under Title VII. In none of his purported attempts to
tell Diamant, Krauss, or Kennedy about Pletzinger's objectionable acts
did he state that Pletzinger was sexually harassing him or make any
statement that could reasonably be construed accordingly. Because the
Bank would not have understood that Soliman's problems with Pletzinger
had anything to do with sexual harassment, Soliman's subsequent
retaliation cannot, as a matter of law, amount to an unlawful retaliation
under Title VII. See West v. Ml Sinai, 2002 WL 530984, supra.
Defendant's motion for summary judgment on plaintiff's retaliation
claim is hereby GRANTED.
Having resolved all ambiguities and drawn all reasonable inferences in
favor of plaintiff Soliman, the court concludes that no reasonable
factfinder could find that defendant Deutsche Bank subjected Soliman to
sexual harassment, discriminated against him on account of race, or
retaliated against him in violation of Title VII or New York state and
city human rights laws. For the reasons cited above, defendant's motion
for summary judgment is GRANTED and plaintiff's claims are dismissed in