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United States District Court, S.D. New York

December 21, 2004.


The opinion of the court was delivered by: ROBERT PATTERSON, Senior District Judge


The Plaintiff, Joanne DeSimone, brings this action against her former employer, JPMorgan Chase Bank (the "Bank"), and her former supervisor, Rupert Blake ("Blake"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. §§ 2000e et seq., New York Executive Law § 296, and New York Civil Rights Law § 40-c. On March 25, 2004, the Defendants moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. On July 28, 2004, the Defendants moved to strike portions of the Plaintiff's Amended Local Rule 56.1 Statement and the declaration of Joanne DeSimone, dated July 15, 2004. For the following reasons, the Defendants' motion to strike and their motion for summary judgment are both granted in part and denied in part.


  The Plaintiff began working for Morgan Guaranty Trust Company of New York prior to graduating from high school in 1978. (Defs.' 56.1 Stmt. ¶¶ 1, 4.) From her initial position as a clerk in the Bookkeeping Department, the Plaintiff received a number of promotions and, by December 1994, she became a Vice President and the Trade and Sales Support Manager in J.P. Morgan's Emerging Markets Middle Office. (Id. ¶¶ 5-9.) The Plaintiff held this position on January 1, 2001, when her employer, J.P. Morgan & Co. ("heritage Morgan"), merged with the Chase Manhattan Corporation ("heritage Chase"). (Id. ¶¶ 11-12.)

  The 2001 merger created JPMorgan Chase Bank (the "Bank"), one of the two defendants in this action. Following the merger, the Plaintiff's job title, salary, bonus eligibility, and responsibilities did not change. (Id. ¶ 14.) However, because heritage Chase had an office similar to the Plaintiff's office at heritage Morgan (id. ¶ 18), the Bank sought to combine the two Emerging Markets Middle Offices and choose a single organizational and management structure for the combined Office. (Id. ¶¶ 23, 27.)

  The Bank chose Rupert Blake ("Blake"), a heritage Chase employee and the second defendant in this action, to be the head of the Global Emerging Markets Middle Office in January 2001. (Id. ¶ 21.) In this role, Blake was charged with recommending a new organizational and personnel structure for the combined Office. (Id. ¶ 31.) Blake began meeting with managers from heritage Morgan and heritage Chase — including the Plaintiff — near the end of February 2001. According to the Plaintiff, Blake conducted himself in an offensive and abusive manner at their initial meeting on February 27, 2001. (Plaintiff's Amended Local Rule 56.1 Statement ("Pl.'s Am. 56.1 Stmt.") ¶ 21.) Following their meeting, the Plaintiff states that Blake repeatedly asked her out on dates and made sexually charged comments and racist and sexist remarks to her about co-workers. (Id. ¶¶ 25-37.) At the same time, the Plaintiff alleges that Blake repeatedly assured her that the reorganizing and restructuring of the Office would not affect her position. (Id. ¶ 24.)

  On March 16, 2001, Blake sent a memorandum to Mary Aulisa, a Human Resources Specialist at the Bank, setting out his recommendations for consolidating the two offices. (Defs.' 56.1 Stmt. ¶ 32.) According to Blake's memorandum, the Plaintiff would continue in her role as New York Trade and Sales Support Manager and be one of the four individuals in the New York Emerging Markets Middle Office who would report directly to Blake. (Id. ¶ 36.) Of Blake's four direct reports in the New York Office, only the Plaintiff would have any managers reporting to her. (Id. ¶¶ 38-39.) A vice president in the Bank's Corporate Employee Relations Department approved Blake's reorganization plan on March 21, 2001. (Id. ¶ 41.)

  Despite her protests, the Plaintiff alleges that Blake's behavior toward her and her co-workers grew worse throughout the month of March. (Pl.'s Am. 56.1 Stmt. ¶¶ 25-37.) The Plaintiff states that immediately after her February 27th meeting with Blake, she telephoned Mary Aulisa to report Blake's conduct. (Id. ¶ 22.) According to the Plaintiff, she left messages for Aulisa but did not explain the reason for her calls; these calls were never returned. The Plaintiff further states that in late March or early April Blake began criticizing her work because she would not submit to or accept his behavior. (Id. ¶ 46.) At that point, the Plaintiff alleges that she confronted Blake again about his conduct and informed him that she was planning to report Blake to one of his superiors. (Id. ¶ 47.)

  On approximately April 10, 2001, the Plaintiff learned that the Bank was eliminating her position as Trade and Sales Support Manager in the Emerging Markets Middle Office as part of its post-merger restructuring. (Defs.' 56.1 Stmt. ¶ 48.) The Plaintiff's position was being divided in two, and she was offered one of the newly created jobs — the position of Sales Support Manager in the reorganized Emerging Markets Middle Office. (Id.) In this new position, the Plaintiff would receive the same salary and retain her eligibility for annual performance bonuses; she also would continue to report directly to Blake. (Id. ¶ 49.)

  According to the Plaintiff, she declined to accept the Sales and Support Manager position because she refused to continue working under Blake. (Pl.'s Am. 56.1 Stmt. ¶ 51.) The Bank did not offer the Plaintiff another position, and she continued working, mostly from home, until June 29, 2001. (Defs.' 56.1 Stmt. ¶¶ 94, 99.) On that day, the Plaintiff received a sixty-day paid non-working notice period, seventy-two weeks of severance pay, and internal and external career services. (Id. ¶ 100.) The Bank offered an additional special payment of $50,000 provided that the Plaintiff execute a specific release; however, the Plaintiff declined to execute the release and forfeited the payment. (Id. ¶¶ 101-02.)

  The Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission (the "EEOC") on or about August 29, 2001. (Id. ¶ 104.) On June 6, 2002, the EEOC issued a Notice of Right to Sue in connection with the Plaintiff's charge. (Id. ¶ 105.) The Plaintiff filed her Complaint in this action on September 5, 2002, which she amended on December 4, 2002. (Id. ¶¶ 106, 108.) DISCUSSION

  I. Motion to Strike

  The Defendants argue that this Court should strike (1) the declaration submitted by the Plaintiff with her Amended Rule 56.1 Statement in whole or in part, and (2) the Plaintiff's Amended 56.1 Statement in part.

  To review, after the Defendants moved for summary judgment and submitted a Rule 56.1 Statement of Material Undisputed Facts, the Plaintiff responded with a Rule 56.1 Statement that failed to satisfy the basic requirements of Local Rule 56.1. The Plaintiff requested permission to amend her 56.1 Statement, which this Court granted. The Plaintiff proceeded to submit an Amended 56.1 Statement, and she also submitted a declaration by the Plaintiff that was not included with her original 56.1 Statement.

  A. Request to Strike Declaration in its Entirety

  The Defendants argue that the declaration submitted with the Plaintiff's Amended 56.1 Statement should be stricken in its entirety because the Plaintiff neither asked for nor received permission from this Court to submit the declaration. After discovering that he failed to comply with Local Rule 56.1, the Plaintiff's counsel asked this Court to "grant Plaintiff an opportunity to amend her Rule 56.1 Statement." (Letter from Matthew L. Gammons to the Court, dated July 8, 2004.) This Court responded with a July 9, 2004 Order, which "granted permission to withdraw [the Plaintiff's] Local Rule 56.1 Statement . . . and file an Amended Local Rule 56.1 Statement." DeSimone v. JP Morgan/Chase Bank, No. 02 Civ. 7039 (S.D.N.Y. July 9, 2004). The Plaintiff subsequently submitted an Amended 56.1 Statement along with a new declaration by the Plaintiff dated July 15, 2004. The Plaintiff does not dispute that this Court's July 2004 Order did not explicitly grant permission to the Plaintiff to submit a new declaration along with the Amended Rule 56.1 Statement. Instead, the Plaintiff argues that the July 2004 Order implicitly permitted the Plaintiff to submit the new declaration because it was necessary "to rectify deficiencies resulting from plaintiff's counsel's incorrect interpretation of [Local] Rule 56.1." (Plaintiff's Memorandum of Law in Opposition to Defendants' Motion to Strike ¶ 6.) "A district court has broad discretion to determine whether to overlook a party's failure to comply with local court rules." Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (citations omitted). Thus, to the extent that the statements in the Plaintiff's declaration are consistent with her prior testimony and written pleadings, the Defendants' motion to strike the declaration in its entirety is denied.*fn2 Cf. Frooks v. Town of Cortlandt, 997 F. Supp. 438, 445 n. 1 (S.D.N.Y. 1998) ("Rule 56.1 does not prohibit the consideration of untimely statements, particularly where the admission of the statement will not prejudice an opposing party.") (citations omitted).

  B. Request to Strike Declaration in Part

  The Defendants also argue that the Plaintiff's declaration should be stricken in part because it contains argument, conclusory allegations, and inadmissible hearsay. Affidavits opposing a motion for summary judgment "shall set forth such facts as would be admissible in evidence." Fed.R.Civ.P. 56(e). "A court may . . . strike portions of an affidavit that are not based upon the affiant's personal knowledge, contain inadmissible hearsay or make generalized and conclusory statements." Hollander v. American Cyanamid Co., 172 F.3d 192, 198 (2d Cir. 1999) (citation omitted); see also Morris v. Northrop Grumman Corp., 37 F. Supp. 2d 556, 568 (E.D.N.Y. 1999) ("Hearsay statements set forth in an affidavit . . . which cannot be categorized as a hearsay exception, conclusory allegations, legal arguments, and statements not based upon personal knowledge, may be stricken.") (citations omitted). In this opinion, any inappropriate portions of the Plaintiff's submissions have been disregarded, and this Court's analysis relies upon admissible evidence. See Morris, 37 F. Supp. 2d at 569 ("Rather than scrutinizing each line . . . and discussing whether they contain conclusory allegations, legal arguments, or hearsay . . . the court it its analysis of the motion for summary judgment, will only consider relevant evidence that is admissible."). Accordingly, the Defendants' motion to strike the Plaintiff's declaration in part is denied as moot.

  C. Request to Strike Amended 56.1 Statement

  The Defendants next argue that the Plaintiff's Amended Rule 56.1 Statement should be stricken in part because the Plaintiff lacked permission to amend her substantive responses to the Defendants' Statement of Material Facts. The Defendants' claim that the July 2004 Order did not permit the Plaintiff to amend the substantive responses contained in her original 56.1 Statement. The Defendants are correct in noting that several of the Plaintiff's responses to the Defendants' statements of material fact changed from being "undisputed" in the Plaintiff's original 56.1 Statement to either complete or partial "denials" in the Amended 56.1 Statement.*fn3 According to the Defendants, these changes are impermissible because the Plaintiff never received permission to materially alter her 56.1 Statement. Notwithstanding this Court's "broad discretion" to overlook a party's failure to comply with local court rules, the Defendants' request to strike the altered responses is granted. In reaching this decision, this Court is mindful of its role in ensuring that counsel comply with rules that govern cases of this type. Here, the July 2004 Order permitted the Plaintiff to amend her 56.1 Statement because her counsel failed to follow Local Rule 56.1. Yet the Plaintiff used this second chance to do more than merely bring the original statement into compliance with the demands of the local rule. Indeed, changing the substantive responses to the Defendants' 56.1 Statement bears no relation to complying with the local rule. Accordingly, the Defendants' motion to strike the portions of paragraphs 31, 59-60, 88-89, 91, 95, and 97 of the Plaintiff's Amended 56.1 Statement that were substantially changed is granted.

  II. Motion for Summary Judgment

  Summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The burden is on the moving party to establish that there are no genuine issues of material fact in dispute. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A court deciding a motion for summary judgment must view the facts in the light most favorable to the non-moving party, drawing all reasonable inferences in her favor. See Young v. County of Fulton, 160 F.3d 899, 901 (2d Cir. 1998). "When no rational juror could find in favor of the non-moving party because the evidence to support its case is so slight, there is no genuine issue of material fact and a grant of summary judgment is proper." Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1223-24 (2d Cir. 1994) (citation omitted).

  Courts must take additional considerations into account when deciding whether to grant summary judgment in discrimination cases. Because direct evidence of an employer's discriminatory or retaliatory intent will rarely be found, "affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Gallo, 22 F.3d at 1224. However, a non-moving party must "do more than simply show that there is some metaphysical doubt as to the material facts"; the non-moving party "must come forward with `specific facts showing that there is a genuine issue for trial.'" Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986) (quoting Fed.R.Civ.P. 56(e)) (emphasis in original). Thus, "`purely conclusory allegations of discrimination, absent any concrete particulars,' are insufficient" to defeat a summary judgment motion. Cameron v. Cmty. Aid for Retarded Children, Inc., 335 F.3d 60, 63 (2d Cir. 2003) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985)).

  III. New York State Law Claims

  The Plaintiff alleges that the Bank and Blake discriminated against her on the basis of sex in violation of Section 296 of the New York Executive Law (also known as the New York State Human Rights Law ("NYSHRL")) and Section 40-c of the New York Civil Rights Law.

  The NYSHRL makes it unlawful for an employer to discriminate on the basis of sex. N.Y. Exec. Law § 296. The Second Circuit has stated that "since claims under the NYSHRL are analyzed identically to claims under . . . Title VII, the outcome of an employment discrimination claim made pursuant to the NYSHRL is the same as it is under . . . Title VII" and need not be addressed separately. Smith v. Xerox Corp., 196 F.3d 358, 363 n. 1 (2d Cir. 1999) (citation omitted). Accordingly, the Plaintiff's Title VII and NYSHRL claims will be analyzed together. See, e.g., Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000) (analyzing federal and state law sex discrimination claims together); Quinn v. Green Tree Credit Corp., 159 F.3d 759, 765 (2d Cir. 1998) (analyzing federal and state law hostile work environment claims together).

  The Plaintiff also alleges that the Defendants violated Section 40-c of the New York Civil Rights Law, which provides that "[n]o person shall, because of . . . sex . . . be subjected to any discrimination in his or her civil rights . . . by any other person or by any firm, corporation, or institution." N.Y. Civ. Rights Law § 40-c. As the Defendants correctly note, a plaintiff must notify the New York State Attorney General prior to or at the same time she commences an action under this section. N.Y. Civ. Rights Law § 40-d. Failure to comply with this statutory prerequisite mandates dismissal of the claim. See Shepard v. Frontier Communications Servs., Inc., 92 F. Supp. 2d 279, 287 (S.D.N.Y 2000); Silver v. Equitable Life Assurance Soc'y, 168 A.D.2d 367, 367, 563 N.Y.S.2d 78, 80 (1st Dept. 1990). Here, because the Plaintiff admits that she did not file a timely notice with the New York Attorney General, the Defendants' motion for summary judgment on the New York Civil Rights Law claim is granted.

  IV. Hostile Work Environment Claim

  The Plaintiff claims that the Bank subjected her to a sex-based hostile work environment in violation of Title VII. In order for a hostile work environment claim to survive a motion for summary judgment, a plaintiff must first produce evidence that "the harassment was sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2002) (citations and quotation marks omitted). Second, a plaintiff must demonstrate that a specific basis exists for imputing the conduct that created the hostile environment to the employer. See id.

  As the Supreme Court explained in Faragher v. City of Boca Raton, to be actionable, "a sexually objectionable environment must be both objectively and subjectively offensive, one that a reasonable person would find hostile or abusive, and one that the victim in fact did perceive to be so." 524 U.S. 775, 787 (1998) (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993)). Courts use a "totality of the circumstances" inquiry to determine whether a work environment is sufficiently hostile. Among the factors to consider are "(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee's work performance." Brennan v. Metro. Opera Ass'n, 192 F.3d 310, 319 (2d Cir. 1999) (citing Harris, 510 U.S. at 23).

  A plaintiff can establish a hostile work environment by showing "either that a single incident was extraordinarily severe, or that a series of incidents were `sufficiently continuous and concerted' to have altered the conditions of her working environment." Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000) (citation omitted). On the other hand, "[i]solated, minor acts or occasional episodes do not warrant relief." Brennan, 192 F.3d at 318 (citation omitted). The Supreme Court has emphasized that Title VII "does not prohibit all verbal or physical harassment in the workplace." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998). Instead, "[t]he critical issue . . . is whether members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Id. Thus, a plaintiff must do more than establish that the harassment affected the terms and conditions of her employment — she must also prove that she was "subjected to the hostility because of her membership in a protected class." Brennan, 192 F.3d at 318.

  The alleged conduct giving rise to the Plaintiff's hostile work environment claim took place during a six-week period that began when the Plaintiff first met with Blake on February 27, 2001. The Plaintiff states that Blake engaged in the following conduct during this period: he asked her out for drinks and dinner repeatedly, despite being rejected each time (Pl.'s Am. 56.1 Stmt. ¶¶ 25, 28); he frequently used the word "fuck" when speaking with her (id. ¶¶ 21, 27); he leered and stared at her body during their encounters in the office (id. ¶ 27); he referred to female co-workers as "eye candy" (id. ¶ 30); he stated that one female co-worker kept her job only because she was dating a senior-level employee (id. ¶ 31); he stated that another female co-worker "had to fucking sleep her way to the top" (id. ¶ 32); he referred to another female co-worker as the "curvy one" (id. ¶ 29); he suggested that another female co-worker needed sex (id. ¶ 36); and he told the Plaintiff that he wanted to swap his wife with another senior-level employee's young girlfriend (id. ¶ 26). The Plaintiff also alleges that Blake made offensive comments about certain male co-workers; she states that Blake made derogatory comments about African Americans (id. ¶ 35), referred to one Bank employee as "that fucking Indian" (id. ¶ 33), and called a group of employees of Italian descent the "fucking mafia" (id. ¶ 34).

  Before determining whether Blake's conduct was sufficiently severe and pervasive, this Court must determine whether the conduct was in fact discriminatory on the basis of sex. See Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) ("It is axiomatic that mistreatment at work . . . is actionable under Title VII only when it occurs because of an employee's sex, or other protected characteristic."). Although Blake's frequent use of the word "fuck" was highly inappropriate, it does not constitute discriminatory conduct where, as here, the Plaintiff has offered no evidence from which to conclude that the foul language was directed at women or more offensive to women than men. See, e.g., Benette v. Cinemark U.S.A., Inc., 295 F. Supp. 2d 243, 250-51 (W.D.N.Y. 2003) (finding that supervisor's vulgar and offensive language, including frequent use of the word "fuck" in the presence of male and female employees, did not establish discriminatory animus). On the other hand, the Plaintiff's allegations that Blake repeatedly asked her out on dates, leered at her at work, and made sexually motivated comments about female co-workers constitute at least some circumstantial evidence that Blake targeted the Plaintiff and women generally on the basis of sex.

  Applying the Harris factors, the conduct giving rise to the Plaintiff's hostile work environment claim was limited to the six weeks following her first meeting with Blake. To be sure, the Plaintiff subjectively perceived her work environment to be hostile during this time. (Pl.'s Am. 56.1 Stmt. ¶ 37.) According to the Plaintiff, she felt compelled to dress more conservatively because of Blake's conduct, and she believed that her position at the Bank would depend on whether she submitted to his comments and actions. (Id. ¶¶ 38-39.) Although the Plaintiff does not allege that Blake physically intimidated or verbally insulted her in any way, she claims that Blake's behavior humiliated her and interfered with her work performance. (Id. ¶ 37.) Lastly, the Plaintiff alleges that Blake made a number of sexually discriminatory comments in her presence, which are factored into the totality of the circumstances even though they were not directed at the Plaintiff herself. See Schwapp, 118 F.3d at 111 ("a racial [or sexual] epithet need not be directed at a plaintiff in order to contribute to a hostile environment").

  Under all the circumstances here, the conduct alleged by the Plaintiff, although unquestionably offensive and inappropriate, was not so severe or pervasive as to alter the terms and conditions of a reasonable person's employment. Courts in this circuit have granted summary judgment on hostile work environment claims where plaintiffs have produced evidence of a greater number of incidents that were far more discriminatory than those alleged here. See, e.g., Spina v. Our Lady of Mercy Med. Ctr., No. 97 Civ. 4661, 2003 U.S. Dist. LEXIS 19091, at *9-11 (S.D.N.Y. Oct. 23, 2003) (granting summary judgment for defendant where supervisor allegedly called plaintiff a "bitch," said she "looked good in tight pants," "constantly" leered at her, and complimented her regarding her hair and eyes); Lamar v. Nynex Serv. Co., 891 F. Supp. 184, 185 (S.D.N.Y. 1995) (granting summary judgment for defendant where abusive conduct consisted of touching plaintiff's hand, telling her she looked "hot," and staring at her). On the other hand, the Second Circuit has found triable issues of fact only where the hostile work environment claims was supported by harassment of significantly greater frequency and severity than the Plaintiff has alleged here. See, e.g., Holtz v. Rockefeller & Co., 258 F.3d 62, 75-76 (2d Cir. 2001) (vacating summary judgment for defendant where plaintiff alleged that defendant grabbed her on a daily basis, touched her hair constantly, leered obscenely, made ten or twenty insinuating remarks about her sex life, and repeatedly tried to peer down her blouse). Consequently, even when viewing all facts in the light most favorable to the Plaintiff, no reasonable juror could conclude that the Plaintiff was subjected to a hostile work environment and the Defendant is entitled to summary judgment on this claim.*fn4

  V. Sex Discrimination Claim

  The Plaintiff next claims that the Bank discriminated against her because of her sex in violation of Title VII, and that both the Bank and Blake did so in violation of the New York State Human Rights Law. This Court's review of the Plaintiff's discriminatory adverse employment claim follows the burden-shifting inquiry established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973). Under that analysis, the Plaintiff must first establish a prima facie case of employment discrimination. To do so, she must demonstrate (1) membership in a protected class; (2) qualification for the position and/or satisfactory job performance; (3) an adverse employment action; and (4) that the adverse employment action was taken under circumstances giving rise to an inference of discrimination. See id. at 802; see also Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001). If the Plaintiff succeeds in making out a prima facie case, the burden shifts to the Defendants to produce a legitimate, non-discriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802-03. If the Defendants provide such a reason, the burden shifts back to the Plaintiff to produce evidence sufficient to raise an issue of fact as to whether the Bank's stated justification is in fact a pretext for discrimination. See id. at 804.

  A. Plaintiff's Prima Facie Case of Discrimination

  Establishing a prima facie case of discrimination is not intended to be difficult. See, e.g., Mandell v. County of Suffolk, 316 F.3d 368, 378 (2d Cir. 2003). Here, the Defendants do not contest that the Plaintiff satisfies the first two requirements — that she is a member of a protected class, and that she was qualified for her position. (Defs.' Mem. at 14.)

  Next, the Plaintiff must demonstrate that she was subjected to an adverse employment action. An adverse employment action is a change in the terms and conditions of employment that is "materially adverse." Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000) (citations omitted). The Second Circuit explained what constitutes a "materially adverse change" in Galabya:

To be materially adverse a change in working conditions must be more disruptive than a mere inconvenience or an alteration of job responsibilities. A materially adverse change might be indicated by a termination of employment, a demotion evidenced by a decrease in wage or salary, a less distinguished title, a material loss of benefits, significantly diminished material responsibilities, or other indices unique to a particular situation.
Id. at 640 (quotation marks, citations, and alterations omitted). There is no bright-line rule and "courts must pore over each case to determine whether the challenged employment action reaches the level of `adverse.'" Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (citation omitted). When viewed in the light most favorable to the Plaintiff, the evidence suggests that she suffered an adverse employment action when the Bank eliminated her position as Trade and Sales Support Manager and offered her the newly created Sales Support Manager position. It is undisputed that the new position would have allowed the Plaintiff to remain a Vice President in the Emerging Markets Middle Office, receive the same annual salary, and continue to be eligible for an annual performance bonus. (Defs.' 56.1 Stmt. ¶¶ 48, 49.) Nonetheless, by reducing the number of teams reporting to the Plaintiff and revising her job title to reflect the narrower scope of responsibility, there is evidence that the position offered to the Plaintiff had a less distinguished title and diminished responsibilities. Cf. Markovic v. New York City Sch. Constr. Auth., No. 99 Civ. 10339, 2002 U.S. Dist. LEXIS 214, at *20-21 (S.D.N.Y. Jan. 8, 2002) (holding insufficient evidence of adverse employment action where plaintiff failed to provide, inter alia, evidence that the new assignment was less prestigious than the former one); Chu v. City of New York, No. 99 Civ. 11523, 2000 U.S. Dist. LEXIS 18513, at *13 (S.D.N.Y. Dec. 28, 2000) (holding insufficient evidence of adverse employment action where plaintiff failed to provide, inter alia, evidence that his responsibilities diminished as a result of the transfer).

  The Plaintiff satisfies the final requirement for a prima facie case of discrimination as well — the adverse employment action was taken under circumstances giving rise to an inference of discrimination. The Plaintiff states Blake acted in an "offensive" and "abusive" manner toward her beginning with their first encounter in February 2001. (Pl.'s 56.1 Stmt. ¶ 21.) Following the initial meeting, the Plaintiff alleges that Blake leered and stared at her body during their workplace encounters and that he repeatedly asked her out on dates even though she refused each time. (Id. ¶¶ 25, 27-28.) According to the Plaintiff, Blake also made sexually discriminatory comments to her about their female co-workers. (Id. ¶¶ 29-32.)

  At the summary judgment stage, the trial court must resolve all factual disputes in favor of the Plaintiff. Accepting the Plaintiff's account of Blake's behavior as true, a reasonable juror could conclude that Blake's decision to recommend that the Bank eliminate the Plaintiff's position gives rise to an inference of discrimination on the basis of sex.

  B. Defendants' Proffer of Legitimate, Nondiscriminatory Reasons

  Given that the Plaintiff has established a prima facie case of discrimination, a presumption arises that the Bank unlawfully discriminated against the Plaintiff. To rebut this presumption, the Defendants must come forward with admissible evidence of legitimate, nondiscriminatory reasons for the adverse actions suffered by the Plaintiff. See Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254 (1981); see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 509 (1993) (emphasis omitted) (defendant meets burden by presenting reasons that, "taken as true, would permit the conclusion that there was a nondiscriminatory reason for the adverse action"). Here, the Defendants have presented reasons for the employment action that satisfy their burden.

  According to the Defendants, following the January 2001 merger the Bank needed to combine offices from each heritage bank into one Emerging Markets Middle Office. (Defs.' 56.1 Stmt. ¶ 27.) As head of the Global Emerging Markets Middle Office, Blake was responsible for recommending a new personnel structure in accordance with the Bank's uniform "selection process guidelines." (Id. ¶ 31.) Under Blake's proposed structure he was to have four direct reports, one of whom was the Plaintiff. (Id. ¶ 36.) Blake's superiors approved his proposal on March 21, 2001. (Id. ¶ 41.)

  Following approval of Blake's reorganization plan, the Defendants contend that Blake determined that the Plaintiff's proposed group had an "additional and unnecessary level of management." (Id. ¶ 44.) To that end, the Defendants note that the Plaintiff would have been the only one of Blake's four direct reports who would have had any managers reporting directly to her. (Id. ¶ 39.) Blake ultimately revised his recommendation to reduce the levels of management within the Plaintiff's proposed group; this revision eliminated the Plaintiff's job and replaced it with two new positions. Under Blake's final recommendation, he had a total of five direct reports and the supervisory levels within each group were more even and similar to the Bank's other Middle Offices. (Id. ¶¶ 52-53.)

  Courts have recognized that an employer's restructuring of operations can be a legitimate, nondiscriminatory reason for an adverse employment action. See, e.g., Tarshis v. Riese Org., 211 F.3d 30, 37 (2d Cir. 2000); Stephens v. Thomas Publ'g Co., 279 F. Supp. 2d 279, 283 (S.D.N.Y. 2003). Accordingly, the Defendants' explanation for the decision to eliminate the Plaintiff's position and offer her a new one satisfies their burden under the McDonnell Douglas analysis.

  C. Plaintiff's Ultimate Burden of Establishing Discrimination

  Because the Defendants have articulated a legitimate reason for their actions, the burden shifts back to the Plaintiff to proffer enough evidence to allow a rational fact finder to infer that the Defendants' explanation was pretextual and that the real reason for the adverse employment action was discrimination. See McDonnell Douglas, 411 U.S. at 804; see also Mandell, 316 F.3d at 381. At this stage, the Court must "examine the entire record to determine whether the plaintiff could satisfy [her] ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000) (citation omitted). A plaintiff is not required to show "that the employer's proffered explanation is unworthy of credence"; however, evidence of pretext may help a plaintiff carry the burden placed on her by the final stage of the McDonnell Douglas analysis. See Burdine, 450 U.S. at 256 (citing McDonnell Douglas, 411 U.S. at 804-05); see also Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995) (plaintiff must show that the prohibited factor was at least one of the "motivating" factors).

  The Plaintiff has produced evidence that suggests that the Defendants' reliance on the Bank's need to restructure the Emerging Markets Middle Office may be pretextual. It is undisputed that Blake's initial reorganization proposal did not alter the Plaintiff's position within the Office. Although the Defendants claim that Blake needed to revise this proposal because it did not comply with the Bank's reorganization guidelines and goals, Blake nonetheless submitted the initial proposal for approval and his supervisors approved it. Less than three weeks later — and one day after Blake allegedly told the Plaintiff he was "rethinking" her position (Pl.'s Dep. at 98) — the Bank eliminated the Plaintiff's position.

  The fact that Blake's supervisors approved his initial proposal undercuts the Defendants' restructuring rationale. It is true, of course, that Blake may have changed his mind about the Plaintiff's position based on nondiscriminatory grounds; for example, Blake may have revised his proposal because he simply did not like the Plaintiff. However, when viewed alongside Blake's allegedly sexist comments about female co-workers, the Plaintiff has succeeded in raising a genuine question of material fact as to whether Blake's final reorganization proposal was motivated by a discriminatory motive.

  "[E]ven during a legitimate reorganization or workforce reduction, an employer may not dismiss employees for unlawful discriminatory reasons." Maresco v. Evans Chemetics, Div. of W.R. Grace & Co., 964 F.2d 106, 111 (2d Cir. 1992) (citation omitted). Drawing all possible inferences in favor of the Plaintiff, a reasonable jury could find that Blake's decision to revise his reorganization proposal was based on an improper motivation and that the Defendants may be using the Bank's undisputed need for reorganization as a pretext to hide a discriminatory motive. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 147 (2000). Accordingly, based on the evidence proffered in support of the Plaintiff's prima facie case and the Plaintiff's evidence of pretext, this Court cannot conclude that the Defendants are entitled to summary judgment.

  VI. Retaliation Claim

  The Plaintiff next claims that the Bank eliminated her position and offered her an inferior one in retaliation for her decision to complain about Blake's conduct.*fn5 Retaliation claims are governed by the burden-shifting framework set out in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 803 (1972). See Quinn v. Green Tree Credit Corp., 159 F.3d 759, 764 (2d Cir. 1998). Thus, the Plaintiff must first establish a prima facie case of retaliation by showing that: (1) she engaged in a protected activity known to the Bank; (2) the Bank took an adverse employment action against her; and (3) there was a causal connection between the Plaintiff's protected activity and the adverse employment action taken by the Bank. See id. at 769. If the Plaintiff succeeds in making out a prima facie case, the burden shifts to the Defendants to produce a legitimate, non-retaliatory reason for the adverse employment action. If the Defendants provide such a reason, the burden shifts back to the Plaintiff to produce evidence sufficient to raise an issue of fact as to whether "retaliation played a motivating role in, or contributed to, the employer's decision." Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (quotation marks and citation omitted).

  The Defendants argue that summary judgment must be granted on the Plaintiff's retaliation claim because the Plaintiff has not established a prima facie case of retaliation. In particular, the Defendants argue that the Plaintiff cannot show that a genuine issue of material fact exists as to whether she engaged in a "protected activity."

  "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., No. 97 Civ. 1673, 1997 U.S. Dist. LEXIS 20345, at *14 (S.D.N.Y. Dec. 23, 1997) ("the protected activity must involve some sort of complaint about a type of discrimination that Title VII forbids"). To prove that she engaged in a protected activity, a plaintiff must show that (1) she opposed a practice engaged in by her employer; and (2) she had a "good faith, reasonable belief that the underlying challenged actions of the employer violated the law." Wimmer v. Suffolk Co. Police Dep't, 176 F.3d 125, 134 (2d Cir. 1999) (quoting Manoharan v. Columbia Univ. Coll. of Physicians & Surgeons, 842 F.2d 590, 593 (2d Cir. 1988)). A plaintiff need not complain in writing; merely making informal verbal complaints to management can constitute protected activity. See Cruz, 202 F.3d at 566.

  The Plaintiff argues that "the contemporaneity of Blake's [decision to eliminate the Plaintiff's position] with [the Plaintiff's] complaints to him about his behavior . . . is simply to [sic] strong a motivating factor to ignore." (Pl.'s Mem. at 15.) The Plaintiff's declaration in opposition to the Defendants' motion for summary judgment similarly states that the Bank eliminated her position after she complained about Blake's "unacceptable and unbearable behavior" to Mary Aulisa, the Human Resources Specialist, and John Carlisle, Office head and Blake's supervisor. (Pl.'s Decl. ¶¶ 9-10.) However, both the Plaintiff's argument and her declaration are inconsistent with her deposition testimony. At her deposition, the Plaintiff explained that, just before her position was eliminated, Blake told her that he was "rethinking" her position at the Bank. (Pl.'s Dep. at 98.) The conversation ended when the Plaintiff told Blake, "You know what, you're not a person I could work with. I'm going down to talk with [your supervisor]." (Id. at 99.) Rather than going directly to Blake's supervisor, the Plaintiff called Aulisa and recounted this exchange with Blake. The Plaintiff told Aulisa that she could no longer work for Blake and that "there were other things to talk about." (Id. at 99, 109.) Aulisa contacted the Plaintiff soon after their conversation and informed her that the Bank was eliminating her position. (Id. at 109.) The Plaintiff then met with Carlisle and complained for the first time about Blake's conduct. (Id. at 101.) In light of the Plaintiff's deposition testimony, the Court declines to credit the statements in her declaration regarding the timing and content of her complaints to Blake, Aulisa, and Carlisle. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 455 (2d. Cir. 1999) ("It is beyond cavil that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that . . . contradicts the affiant's previous deposition testimony.") (internal quotation omitted).

  Based on the Plaintiff's deposition testimony, there is no evidence that she complained to Blake, Aulisa, or Carlisle that Blake was sexually harassing her prior to the elimination of her position, nor is there evidence that she made any statements that could be construed to that effect. By declaring that she could no longer work with Blake and that she was going to speak to his supervisor, the Plaintiff did not adequately articulate that she was complaining about the type of conduct forbidden by Title VII. Cf. West v. Mt. Sinai Med. Ctr., No. 00 Civ. 6191, 2002 U.S. Dist. LEXIS 6123, at *11 (S.D.N.Y. Apr. 9, 2002) (no reasonable fact finder could conclude that the defendant employer understood that plaintiff's complaint implicated Title VII because plaintiff did not specify that there was anything sexual about her alleged harasser's conduct); Moran v. Fashion Inst. of Tech., No. 00 Civ. 1275, 2002 U.S. Dist. LEXIS 19387, at *27 (S.D.N.Y. Oct. 7, 2002) (plaintiff never stated that he objected to his supervisor's conduct on the grounds of sexual harassment). Thus, even when viewing the evidence in the light most favorable to the Plaintiff, a reasonable fact finder could not conclude that the Plaintiff engaged in a protected activity. For this reason, the elimination of the Plaintiff's position at the Bank cannot, as a matter of law, amount to unlawful retaliation under Title VII and the Defendants' motion for summary judgment on the retaliation claim is granted. CONCLUSION

  For the reasons set forth above, the Defendants' motion to strike is GRANTED in part and DENIED in part, and the Defendants' motion for summary judgment is GRANTED in part and DENIED in part. The Plaintiff may proceed to trial on her Title VII sex discrimination claim against the Bank, and on her NYSHRL sex discrimination claims against the Bank and Blake. The Plaintiff's hostile work environment and retaliation claims are dismissed.


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