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GIANNONE v. DEUTSCHE BANK SECURITIES

September 21, 2005.

GINA GIANNONE, Plaintiff,
v.
DEUTSCHE BANK SECURITIES, INC., Defendant.



The opinion of the court was delivered by: WILLIAM PAULEY, District Judge

MEMORANDUM AND ORDER

Gina Giannone ("Plaintiff" or "Giannone") brings this employment discrimination action against her former employer, Deutsche Bank Securities, Inc. ("Defendant" or "Deutsche Bank"), pursuant to Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., the New York State Human Rights Law ("HRL"), N.Y. Exec. Law § 296, and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107. Giannone claims that Deutsche Bank discriminated against her based on her gender throughout and after her employment. She also claims that her termination was discriminatory and retaliatory. Deutsche Bank moves for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, Deutsche Bank's motion is granted in part and denied in part.

BACKGROUND

  Giannone joined Deutsche Bank's New York office in June 1999 following the merger of Deutsche Bank with her then-employer, Bankers Trust. (Defendant's Rule 56.1 Statement, dated Nov. 30, 2004 ("Def. 56.1 Stmt.") ¶¶ 1-3; Plaintiff's Rule 56.1 Statement, dated Jan. 7, 2005 ("Pl. 56.1 Stmt.") ¶¶ 1-3.) Plaintiff worked as a Business Manager in Deutsche Bank's Global Markets Division. (Def. 56.1 Stmt. ¶¶ 2, 4; Pl. 56.1 Stmt. ¶¶ 2, 4.) There were numerous "Business Manager" positions throughout the division, with each position's function and responsibilities largely dictated by the supervisor. (Def. 56.1 Stmt. ¶ 8; Pl. 56.1 Stmt. ¶ 8.) Notwithstanding this variability, most Business Managers interacted with the Operations and Technology Departments and helped prepare profit-and-loss reports for their investment product groups. (Deposition of Jeanette Gorgas, dated Sept. 26, 2004 ("Gorgas Dep.") at 135.)

  I. Giannone's Employment Reporting to Damian Kissane

  When Giannone began working for Deutsche Bank, she reported to Damian Kissane ("Kissane"), the Chief Operating Officer ("COO") of the Derivatives Group. (Def. 56.1 Stmt. ¶¶ 2, 5; Pl. 56.1 Stmt. ¶¶ 2, 5.) Plaintiff contends that Kissane had promised her a year-end bonus between $225,000 and $250,000 if she accepted Deutsche Bank's offer. (Deposition of Gina Giannone, dated July 7-22, 2004 ("Giannone Dep.") at 281-84, 318-19.) Kissane denies that any such promise was made. (Affidavit of Damian Kissane, dated Nov. 24, 2004 ("Kissane Aff.") ¶ 5.) According to Jeanette Gorgas ("Gorgas"), the head of Deutsche Bank's Human Resources ("H.R.") Department, the Bank's policy requires that all guaranteed bonuses be in writing. (Gorgas Dep. at 74.)

  Giannone received a $175,000 bonus in 1999, bringing her total compensation for that year to $300,000. (Def. 56.1 Stmt. ¶¶ 15, 28; Pl. 56.1 Stmt. ¶¶ 15, 28.) Plaintiff contends that when she inquired about the higher bonus she was promised, Kissane responded that she "made an awful lot of money for a young woman." (Giannone Dep. at 285, 291.) In January 2000, Giannone complained to H.R. that Kissane had refused to pay her the promised bonus because she is a woman. (Affidavit of Lisa Walsh, dated Nov. 24, 2004 ("Walsh Aff.") Ex. E: Email from Gina Giannone to Brad Brenner, dated Jan. 31, 2000; see Def. 56.1 Stmt. ¶ 16; Pl. 56.1 Stmt. ¶ 16.) Plaintiff also complained that an outside consultant, Sam Abramson ("Abramson"), attempted to relegate her to secretarial responsibilities solely because of her gender. (Walsh Aff. Ex. E; Def. 56.1 Stmt. ¶ 18; Pl. 56.1 Stmt. ¶ 18.)

  In May 2000, Giannone again complained to H.R. about her 1999 bonus and reported that Kissane was harassing her. (Walsh Aff. Ex. F: Email from Gina Giannone to Jeanette Gorgas, dated May 16, 2000.) According to Plaintiff, Kissane made frequent inquiries and comments about her marital status, bodily features and other "comments of a sexual nature." (Giannone Dep. at 290-300.) Giannone admits that Kissane's harassment ended by June 2000. (Def. 56.1 Stmt. ¶ 36; Pl. 56.1 Stmt. ¶ 36.) Kissane denies harassing Giannone but does not deny making the comments she describes. (Kissane Aff. ¶ 8.) After conducting an investigation, Deutsche Bank reassigned Giannone away from Kissane's supervision. (Def. 56.1 Stmt. ¶ 21; Pl. 56.1 Stmt. ¶ 21.) Giannone contends that Gorgas warned her not to complain of discrimination again. (Affidavit of Gina Giannone, dated Jan. 2005 ("Giannone Aff.") ¶ 9; Giannone Dep. at 206-07.)

  II. Giannone's Employment Reporting to Thomas Paul

  From the second half of 2000 to mid-2002, Giannone worked on the Fixed Income Desk and reported to Thomas Paul ("Paul"). (Def. 56.1 Stmt. ¶ 6; Pl. 56.1 Stmt. ¶ 6.) As Paul's Business Manager, Giannone chaired weekly meetings and interacted with the Accounting, Operations and Technology Departments to determine the Fixed Income Desk's expenses. (Giannone Aff. ¶ 10; Deposition of Thomas Paul, dated Aug. 19, 2004 ("Paul Dep.") at 29-31.) She also supervised an administrative assistant. (Giannone Aff. ¶ 10.) Her reviews remarked that she was "exceed[ing] expectations" and referred to her as "exceptional" and "a team player." (Giannone Aff. Ex. 1; Giannone Dep. Ex. Z.) Giannone received performance bonuses of $225,000 for 2000 and $280,000 for 2001. (Walsh Aff. Ex. D.) Including bonuses, Giannone earned $355,000 in 2000 and $415,000 in 2001. (Def. 56.1 Stmt. ¶ 15; Pl. 56.1 Stmt. ¶ 15.)

  In May 2001, Mark Ferron ("Ferron"), the COO of the Global Markets Group, promoted Peter Henrici ("Henrici"), a Business Manager, to be Regional COO of Global Markets in New York. (Def. 56.1 Stmt. ¶¶ 39, 44; Pl. 56.1 Stmt. ¶¶ 39, 44.) Plaintiff contends that Henrici was promoted over more qualified women, including herself, and that Defendant failed to post the vacancy. (Giannone Dep. at 261, 269-71.) However, Ferron had supervised Henrici in the London office and thought Henrici was "an excellent Business Manager." (Affirmation of Mark Ferron, dated Nov. 18, 2004 ("Ferron Aff.") ¶ 2; Def. 56.1 Stmt. ¶ 45; Pl. 56.1 Stmt. ¶ 44.) Ferron was not personally familiar with Giannone. (Ferron Aff. ¶ 2.)

  In the summer of 2002, Ferron and two other men promoted Steven Gatto ("Gatto") to COO of Derivatives. (Def. 56.1 Stmt. ¶ 50; Pl. 56.1 Stmt. ¶ 50.) None of these male supervisors were familiar with Giannone but they all worked with Gatto in London "and thought he was the obvious choice to fill the COO role." (Ferron Aff. ¶ 4; see Def. 56.1 Stmt. ¶ 51; Pl. 56.1 Stmt. ¶ 51.) Once again, Plaintiff did not know the position was available until after it was filled. (Giannone Dep. at 274.) She contends that she interacted with senior managers better than Gatto and that Gatto committed frequent costly errors. (Giannone Aff. ¶ 4; Giannone Dep. at 275-76.)

  In July 2002, after Deutsche Bank rehired Abramson as a consultant, Giannone again complained to H.R. that the non-payment of her 1999 bonus and Abramson's prior treatment were discriminatory. (Walsh Aff. Ex. L: Emails between Gina Giannone and Jeanette Gorgas, dated July 11-12, 2002.) Giannone stated: "[I] think this firm should start to be forward looking about cultivating the right thoughts in people's minds about women and the work they do here." (Walsh Aff. Ex. L.)

  III. Giannone's Employment Reporting to Susan Estes

  In September 2002, Paul transferred to London and Giannone continued to perform occasional assignments for him. (Giannone Dep. at 29-30, 190; Paul Dep. at 75-76.) Gianonne began reporting to Susan Estes ("Estes"), whom Deutsche Bank hired to replace Paul as the head of Fixed Income. (Def. 56.1 Stmt. ¶¶ 53-54; Pl. 56.1 Stmt. ¶¶ 53-54.)

  Giannone and Estes interacted poorly from the outset, in part because Estes did not understand Plaintiff's role as Business Manager. (Def. 56.1 Stmt. ¶ 58; Pl. 56.1 Stmt. ¶ 58.) Accordingly, Estes and Giannone clashed over Estes' expectations and the parameters of Plaintiff's job responsibilities, including whether she owed any continuing duty to Paul. (Def. 56.1 Stmt. ¶¶ 59-60, 63, 69-70, 72; Pl. 56.1 Stmt. ¶¶ 59-60, 63, 69-70, 72.) Estes believed that Plaintiff did not provide her with information she requested. (Deposition of Susan Estes, dated Sept. 7, 2004 ("Estes Dep.") at 62-63.) Their acrimony escalated at the end of October when Giannone took a vacation without notifying Estes directly. (Estes Dep. at 81-83; Giannone Dep. at 98-99; Walsh Aff. Ex. N: Email from Susan Estes to Gina Giannone, dated Nov. 3, 2002.)

  Plaintiff asserts that Estes commented on her appearance at least twenty times in two months, often interrupting business meetings to do so. (Giannone Dep. at 101-10.) Estes did not comment on the appearance of male employees. (Giannone Aff. ¶ 16.) Plaintiff further asserts that Estes often asked her to perform tasks male Business Managers did not perform, such as fetching her lunch and coffee and once scheduling a manicure appointment for her. (Giannone Dep. at 114-24, 315-16.) Giannone contends that Estes was condescending toward her and her male counterparts. (Giannone Dep. at 154-57.)

  On November 8, 2002, Giannone sent Estes an email in which she represented that her continued work as Paul's Business Manager would occupy "5-10%" of her time. (Walsh Aff. Ex. O.) Plaintiff stated, "If I am to be a right hand resource, I should be involved in meetings and discussions. . . . I am hopeful that in the future you will treat me respectfully and not condescendingly." (Walsh Aff. Ex. O.) Estes responded on November 10, 2002 that Giannone did not provide materials when requested and behaved unprofessionally. (Walsh Aff. Ex. R.) Estes acknowledged that they suffered communication problems. (Walsh Aff. Ex. R.)

  After this email exchange, Giannone met with H.R. and complained that Estes was discriminating against her because of her gender. (Giannone Dep. at 188-89, 220-21; Deposition of Lisa Walsh, dated July 22, 2004 ("Walsh Dep.") at 89-90.) Giannone asked H.R. to transfer her to another Business Manager position or offer her a severance package. (Def. 56.1 Stmt. ¶ 84; Pl. 56.1 Stmt. ¶ 84; Walsh Aff. Ex. S: Email from Gina Giannone to Lisa Walsh, dated Nov. 13, 2002.) Plaintiff stated that she could not continue to work for Estes unless her situation improved dramatically: "[T]he issues of tone & attitude and lack of trust are major concerns for me. Changing the job description and micromanagement is the other concern. I believe these will be difficult to correct and I find it uncomfortable working for Susan presently." (Walsh Aff. Ex. S.) H.R. replied that there were no vacant Business Manager positions and that Deutsche Bank normally does not offer severance packages to employees merely because they do not get along with their supervisors. (Walsh Dep. at 109; Gorgas Dep. at 165-67.) On November 13, 2002, Plaintiff sent Estes an email stating that she "felt extremely uncomfortable working for [her] going forward." (Walsh Aff. Ex. T.) After receiving this message, Estes met with Gorgas and Lisa Walsh ("Walsh") of H.R., as well as Mitch Danzig ("Danzig"), the Chief Administrative Officer of Global Markets. (Def. 56.1 Stmt. ¶ 87; Pl. 56.1 Stmt. ¶ 87.) Danzig explained to Estes and Gorgas that if Giannone was terminated, her position could be filled by Danzig's Business Manager, Debbie Hrvatin ("Hrvatin"). (Affidavit of Mitch Danzig, dated Nov. 23, 2004 ("Danzig Aff.") ¶ 6.)

  Giannone's performance improved the following week and Estes told Walsh that she would work through any further difficulties. (Def. 56.1 Stmt. ¶ 90; Pl. 56.1 Stmt. ¶ 90; Estes Dep. at 142, 149-50.) On November 21, 2002, Giannone met again with Estes and Walsh. (Def. 56.1 Stmt. ¶ 92; Pl. 56.1 Stmt. ¶ 92.) Both parties agree that "[t]he meeting did not go well." (Def. 56.1 Stmt. ¶ 93; Pl. 56.1 Stmt. ¶ 93.) Giannone sent Walsh an email expressing her impression that the "meeting was disastrous, led and orchestrated by Susan, and designed to be a personal attack on [Giannone's] performance in direct retaliation against [her]." (Walsh Aff. Ex. V.) Giannone complained: "Susan appreciates nothing from me and now seems to have a personal vendetta against me." (Walsh Aff. Ex. V.) By contrast, Estes discerned that Giannone "personalized issues that were just business and forthright." (Estes Dep. at 131.) According to Estes, Plaintiff "referred back to the fact that she still had all these other responsibilities, even though we had clarified that she would be working for me, and that these other responsibilities were not on her plate." (Estes Dep. at 131.) Because of Giannone's conduct during that meeting, Estes decided to terminate her. (Estes Dep. at 128-33.) Gorgas testified that the decision was made because Estes and Giannone "just could not get along." (Gorgas Dep. at 197-98.) Deutsche Bank fired Giannone the following day, November 22, 2002. Defendant's Termination Form listed the reason for Giannone's termination as "Restructuring" and "Staff Reduction." (Walsh Aff. Ex. W.) Although Danzig had developed a plan to trim costs by eliminating certain Business Manager positions, Deutsche Bank never adopted it. (Danzig Aff. ¶ 6; Walsh Dep. at 136.) Giannone contends that Paul later told her that Estes's supervisor, Wolfgang Matis ("Matis"), had revealed to him that Plaintiff was terminated because she had complained about Kissane's sexual harassment. (Giannone Dep. at 221-22, 254-56.) According to Plaintiff, Paul told her that Matis received this information from Gorgas. (Giannone Dep. at 221-22, 254-56.) Matis denies having such conversations. (Deposition of Wolfgang Matis, dated Oct. 28, 2004 ("Matis Dep.") at 24-31.) Both Estes and Matis testified that they had no knowledge of Plaintiff's prior complaints. (Estes Dep. at 34, 120; Matis Dep. at 30-31.)

  IV. Post-Termination Events

  The day after Giannone was fired, Estes offered the Fixed Income Business Manager position to Richard Luci ("Luci") of Deutsche Bank's Operations Department. (Def. 56.1 Stmt. ¶ 101; Pl. 56.1 Stmt. ¶ 101; Affirmation of Richard Luci, dated Sept. 24, 2004 ("Luci Aff.") ¶ 3.) While Luci was checking with his supervisors, Danzig directed that the position be filled by two female ...


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