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DeSIMONE v. JP MORGAN/CHASE BANK

December 21, 2004.

JOANNE DeSIMONE, Plaintiff,
v.
JP MORGAN/CHASE BANK and RUPERT BLAKE, Defendants.



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

OPINION & ORDER

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.

  BACKGROUND*fn1

  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 ...


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