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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 harassment:

  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 Request

  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 deposition:
"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 ...

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