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.
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 ...