United States District Court, S.D. New York
September 21, 2005.
GINA GIANNONE, Plaintiff,
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.
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 employees, Hrvatin and Katelyn Janelli ("Janelli"). (Def.
56.1 Stmt. ¶ 103; Pl. 56.1 Stmt. ¶ 103.)
In early 2003, Pablo Calderini ("Calderini"), the head of Cross
Markets Arbitrage, offered that group's Senior Business Manager
position to Stephen O'Gallagher ("O'Gallagher"), an associate of
Calderini's in London. (Def. 56.1 Stmt. ¶¶ 113-14; Pl. 56.1 Stmt.
¶¶ 113-14.) Thereafter, Paul recommended that Calderini rehire Giannone for
this position and Calderini had preliminary discussions with her.
(Def. 56.1 Stmt. ¶¶ 115-16; Pl. 56.1 Stmt. ¶¶ 115-16.) When
O'Gallagher accepted the offer, Calderini ended his discussions
with Giannone. (Def. 56.1 Stmt. ¶ 117; Pl. 56.1 Stmt. ¶ 117.)
V. Procedural History
Plaintiff filed a charge with the Equal Employment Opportunity
Commission ("EEOC") on June 14, 2003, charging gender based
discrimination and retaliation. (Affidavit of Barry Asen, Esq.,
dated Nov. 30, 2004 ("Asen Aff.") Ex. B.) The EEOC dismissed
Giannone's charge and issued a right-to-sue letter on September
16, 2003. (Asen Aff. Ex. B.) Plaintiff filed this action on
December 5, 2003. Giannone alleges that Deutsche Bank violated
Title VII, the HRL and the NYCHRL by discriminating against her
on the basis of her gender through Kissane's sexual harassment,
by paying her a reduced bonus and by failing to promote,
terminating and failing to rehire her. Plaintiff also alleges
that she was fired in retaliation for complaining about Kissane's
discrimination and sexual harassment and Estes's discriminatory
conduct. Deutsche Bank moves for summary judgment.
I. Standard 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); see also
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986).
The burden of demonstrating the absence of any genuine dispute as
to a material fact rests with the moving party. Adickes v. S.H.
Kress & Co., 398 U.S. 144, 157 (1970); Grady v. Affiliated
Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997). In determining
whether there is a genuine issue as to any material fact, "[t]he
evidence of the non-movant is to be believed, and all justifiable
inferences are to be drawn in [her] favor." Liberty Lobby,
477 U.S. at 255.
"A trial court must be cautious about granting summary judgment
to an employer [in a discrimination case] when . . . its intent
is at issue." Gallo v. Prudential Residential Servs., Ltd.
P'ship, 22 F.3d 1219, 1224 (2d Cir. 1994). Nonetheless, "a
plaintiff must provide more than conclusory allegations of
discrimination to defeat a motion for summary judgment." Schwapp
v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). "[M]ere
speculation or conjecture" are also insufficient. W. World Ins.
Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990).
Rather, a plaintiff "must come forward with evidence that would
be sufficient to support a jury verdict in [her] favor." Goenaga
v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.
II. Time-Barred Claims
To preserve a Title VII claim for federal court review, an
individual complaining of employment discrimination in New York
State must file a charge with the EEOC within 300 days of the
alleged discriminatory act. Pikulin v. City Univ. of New York,
176 F.3d 598, 599 (2d Cir. 1999); Butts v. City of New York
Dep't of Hous. Pres. & Dev., 990 F.2d 1397, 1401 (2d Cir. 1993);
see 42 U.S.C. § 2000e-5(e)(1). Giannone filed her EEOC charge
on June 14, 2003. (Asen Aff. Ex. B.) It is undisputed that
Plaintiff's Title VII claims based on the alleged incidents of
sexual harassment by Kissane, the reduced bonus and failure to
promote to the position filled by Henrici are time-barred. (Plaintiff's Memorandum in Opposition
to Defendant's Motion for Summary Judgment, dated Jan. 7, 2005
("Pl. Opp. Mem.") at 17 n. 4.) These acts arose in 2000 and 2001
more than 300 days before Giannone filed her EEOC charge.
Giannone's HRL and NYCHRL claims are time-barred to the extent
they concern events prior to December 5, 2000, or more than three
years before Plaintiff filed the Complaint. See N.Y.C.P.L.R. §
214(2); N.Y.C. Admin. Code § 8-502(d); Murphy v. Am. Home Prods.
Corp., 58 N.Y.2d 293, 306-07 (1983). Plaintiff concedes that
Kissane's alleged harassment ceased in June 2000 and that her
bonus for 1999 was to be paid at the end of that year or early in
2000. (Giannone Dep. at 318; Pl. 56.1 Stmt. ¶ 36.) Accordingly,
Plaintiff's HRL and NYCHRL claims for Kissane's sexual harassment
and payment of a reduced bonus are time-barred.
III. Discrimination Claims
Giannone's timely discrimination claims allege that Deutsche
Bank discriminated against her by terminating her and then
failing to rehire her for the position that O'Gallagher
subsequently accepted. (Complaint ("Compl.") ¶¶ 30-33, 36-46.)
Giannone also claims that Deutsche Bank discriminated against her
in violation of the HRL and the NYCHRL by promoting Henrici
instead of her, and in violation of Title VII as well as the
state and local statutes by promoting Gatto instead of her.
(Compl. ¶¶ 23, 36-46.)
Title VII provides, in pertinent part: "It shall be unlawful
for an employer . . . to discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of
employment, because of the individual's race, color, religion,
sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
Supreme Court set forth the burden-shifting framework under which
Title VII discrimination claims are analyzed. See Grady v. Affiliated
Cent., Inc., 130 F.3d 553, 559 (2d Cir. 1997). Claims of
discrimination brought under the HRL and the NYCHRL are
"analytically identical" to claims brought under Title VII and
are reviewed under the same burden-shifting analysis. Torres v.
Pisano, 116 F.3d 625, 629 n. 1 (2d Cir. 1997); accord Dawson
v. Bumble & Bumble, 398 F.3d 211, 217 (2d Cir. 2005); Weinstock
v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000).
A plaintiff has the initial burden of proving a prima facie
case of discrimination. McDonnell Douglas, 411 U.S. at 802;
see St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993).
To establish a prima facie case, a plaintiff must demonstrate
that: (1) she is a member of a protected class; (2) she
satisfactorily performed the duties of her position; (3) she was
subjected to an adverse employment action; and (4) the adverse
action occurred in circumstances giving rise to an inference of
discrimination. Weinstock, 224 F.3d at 42; see McDonnell
Douglas, 411 U.S. at 802. "The burden that an employment
discrimination plaintiff must meet in order to defeat summary
judgment at the prima facie stage is de minimis." McLee
v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); accord
Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981); Scaria v. Rubin, 117 F.3d 652, 653 (2d Cir. 1987).
Once the plaintiff has established a prima facie case, the
burden shifts to the defendant to articulate a legitimate,
non-discriminatory reason for the adverse employment action.
McDonnell Douglas, 411 U.S. at 802-03; Holt v. KMI-Cont'l,
Inc., 95 F.3d 123, 129 (2d Cir. 1996). Any non-discriminatory
reason is sufficient. Fisher v. Vassar Coll., 114 F.3d 1332,
1335-36 (2d Cir. 1997), abrogated on other grounds by Reeves
v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 146 (2000).
The burden then shifts back to the plaintiff to show that the
employer's reason is mere pretext and that discrimination was the
true motivating factor. St. Mary's, 509 U.S. at 507-08; McDonnell Douglas,
411 U.S. at 804-05. Ultimately, the question is whether the evidence supports
a rational inference that "more likely than not discrimination
was the real reason" for the adverse action of which the
plaintiff complains. Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 714 (2d Cir. 1996) (internal quotation omitted).
Deutsche Bank does not contest that Giannone has established
the first three prongs of her prima facie case for each of
the adverse employment actions timely alleged in the Complaint.
Accordingly, this Court considers whether a genuine issue of
material fact exists with respect to whether the circumstances
surrounding those events give rise to an inference of
discrimination, and whether the parties have met their respective
burdens at the second and third stage of the McDonnell Douglas
A. Discriminatory Discharge
Plaintiff argues that the fact that Estes first attempted to
hire a man, Luci, as Giannone's replacement supports an inference
that Estes decided to terminate Giannone because she is a woman.
Moreover, Plaintiff contends, Estes's comments about Giannone's
appearance, together with her condescension and assignment of
menial tasks reflect that Estes viewed Giannone stereotypically
as a woman.
Deutsche Bank responds that "the notion of one woman
discriminating against another woman is generally at odds with
common sense." (Defendant's Reply Memorandum in Support of Motion
for Summary Judgment, dated Jan. 21, 2005 at 5.) However, the
Second Circuit has held that "[t]he proposition that people in a
protected category cannot discriminate against their fellow class
members is patently untenable." Danzer v. Norden Sys., Inc.,
151 F.3d 50, 55 (2d Cir. 1998); see Feingold v. New York,
366 F.3d 138, 155 (2d Cir. 2004) ("We also reject the district court's suggestion that an inference of
discrimination cannot be drawn because Feingold was fired by
another Jew."). Although the fact that Plaintiff was terminated
by Estes, a woman, makes "an inference of discrimination more
difficult," Pesok v. Hebrew Union Coll.-Jewish Inst. of
Religion, 235 F. Supp. 2d 281, 287 n. 5 (S.D.N.Y. 2002), it does
not sound the death knell on Giannone's prima facie case.
Deutsche Bank also contends that an inference of discrimination
is precluded by the fact that Giannone was replaced by two women,
Hrvatin and Janelli. Indeed, "[w]here no evidence giving rise to
an inference of discrimination has been presented, the fact that
a plaintiff is replaced with an individual within his protected
class undermines his attempt to establish a prima facie case of
discrimination." Spiegler v. Isr. Disc. Bank of N.Y., No. 01
Civ. 6364 (WK), 2003 WL 21488040, at *11 (S.D.N.Y. June 25,
2003). By contrast, "the mere fact that a plaintiff was replaced
by someone outside the protected class will suffice for the
required inference of discrimination at the prima facie stage
of the Title VII analysis." Zimmerman v. Assocs. First Capital
Corp., 251 F.3d 376, 381 (2d Cir. 2001). That is, discrimination
can be inferred from evidence that the decision-maker showed a
"preference for a person not of the protected class." James v.
New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
Estes first attempted to replace Giannone with a man, Luci.
(Luci Aff. ¶ 3.) Although Danzig later required Estes to select
two women for the Fixed Income Business Manager position (Luci
Aff. ¶ 5), the fact that Estes initially tried to replace
Giannone with a man reflects a preference for a person outside
Plaintiff's protect class and suffices to support an inference of
In any event, Estes' inclination toward Luci is not the only
evidence that supports an inference of gender discrimination.
Cf. Spiegler, 2003 WL 21488040, at *11. Estes repeatedly made comments about Giannone's appearance and did not
make similar remarks to male employees. (Giannone Aff. ¶ 16;
Giannone Dep. at 101-10.) A rational jury could conclude that
Estes was focused unfairly on the fact that Giannone is a woman.
See Drinkwater v. Union Carbide Corp., 904 F.2d 853, 862-63
(3d Cir. 1990) ("Undue preoccupation with what female employees
look like is not permissible under the anti-discrimination laws
if the same kind of attention is not paid to male employees.");
see also Back v. Hastings on Hudson Union Free Sch. Dist.,
365 F.3d 107, 119 (2d Cir. 2004) ("`[S]tereotyped remarks can be
evidence that gender played a part' in an adverse employment
decision." (quoting Price Waterhouse v. Hopkins, 490 U.S. 228,
Moreover, Estes utilized Giannone for "personal chores."
(Giannone Dep. at 1142-4, 315-16.) Such tasks were not within the
scope of her previous Business Manager positions. Nor were they
assigned to similarly situated men. (Giannone Dep. at 117-19.)
The assignment of menial (or, as Plaintiff asserts,
stereotypically female) tasks to Plaintiff could lead a rational
finder of fact to conclude that Estes fostered a discriminatory
animus toward Giannone. Cf. Galdieri-Ambrosini v. Nat'l Realty &
Dev. Corp., 136 F.3d 276, 290 (2d Cir. 1998) (although
"historically, in most firms, most secretaries have been women,"
the assignment of tasks "typically done for an executive by his
or her secretary" was not suggestive of gender discrimination
where plaintiff was a secretary). The fact that Giannone acceded
to such tasks is immaterial. The pertinent inquiry is how Estes
viewed Plaintiff. Thus, Giannone has established her prima
facie case of discrimination.
The burden thus shifts to Deutsche Bank to articulate a
legitimate non-discriminatory reason for terminating Plaintiff.
See McDonnell Douglas, 411 U.S. at 802-03; Fisher,
114 F.3d at 1335-36. Defendant asserts that for reasons unrelated to
Giannone's gender, Estes and Giannone simply could not get along, leading Estes to
terminate her. Indeed, Giannone asked H.R. to transfer her away
from Estes's supervision just prior to her termination. (Walsh
Aff. Ex. S.) "It is widely acknowledged that reasons such as low
productivity and conflicts with persons in positions of authority
constitute legitimate nondiscriminatory reasons justifying
discharge." Thermidor v. Beth Isr. Med. Ctr., 683 F. Supp. 403,
412 (S.D.N.Y. 1988).
While Deutsche Bank's asserted reason is non-discriminatory,
the reasons listed on Giannone's Termination Form are
"Restructuring" and "Staff Reduction." (Walsh Aff. Ex. W.)
Deutsche Bank's inconsistent explanations creates an issue of
fact as to whether the reason it currently asserts is pretextual.
Of course, "there are so many reasons why employers give false
reasons for an adverse employment action that evidence
contradicting the employer's given reason without more does
not necessarily give logical support to an inference of
discrimination." James, 233 F.3d at 154; see also Reeves,
530 U.S. at 147 ("Proof that the defendant's explanation is
unworthy of credence is simply one form of circumstantial
evidence that is probative of intentional discrimination, and it
may be quite persuasive."). The inquiry is case-specific.
Schnabel v. Abramson, 232 F.3d 83, 90 (2d Cir. 2000).
In these circumstances, a jury could reasonably find that the
Business Manager position, though loosely defined, did not
include the tasks that Estes attributed to it and that, by
assigning those tasks to Giannone, Estes demeaned and belittled
her solely because of her gender. Moreover, Estes' frequent
comments about Giannone's appearance may reflect that she had
honed in on her gender. Therefore, Plaintiff has raised a triable
issue of fact that Estes's inability to get along with her had
its genesis in the fact that Giannone is a woman. See Kerzer
v. Kingly Mfg., 156 F.3d 396, 402 (2d Cir. 1998) (court can
consider evidence used to establish a plaintiff's prima facie
case on the question of whether the employer's proffered reason
is pretext); accord Diaz v. Weill Med. Ctr. of Cornell Univ.,
No. 02 Civ. 7380 (AJP), 2004 WL 285947, at *23 (S.D.N.Y. Feb. 13,
Accordingly, Deutsche Bank is not entitled to summary judgment
on Plaintiff's claim of discriminatory discharge.
B. Failure to Promote and Failure to Rehire
Plaintiff claims that Deutsche Bank discriminated against her
by promoting two males, Henrici and Gatto, to COO positions
despite her extensive experience and superior credentials.
Moreover, Plaintiff claims that Deutsche Bank discriminated
against her by promoting O'Gallagher, a male, to be Senior
Business Manager of the Cross Markets Arbitrage Group instead of
rehiring her for that position.
For both claims, Plaintiff has established her prima facie
case by presenting evidence that she was qualified and that the
positions were given to men. See De La Cruz v. New York City
Human Res. Admin. Dep't of Soc. Servs., 82 F.3d 16, 20 (2d Cir.
1996); Quaratino v. Tiffany & Co., 71 F.3d 58, 65 (2d Cir.
1995). However, for all three employment decisions, Deutsche Bank
offers the legitimate, non-discriminatory reason that the
decision-makers had prior experience with the men they promoted,
were comfortable working with them and lacked first-hand
experience with Giannone. See Scaria v. Rubin, No. 94 Civ.
3333 (SAS) (AJP), 1996 WL 389250, at *11 (S.D.N.Y. July 11,
1996), aff'd, 117 F.3d 652 (2d Cir. 1997) ("`[F]avoritism'
based on proven performance is surely a valid reason for
promotion."). Moreover, in the case of Plaintiff's
failure-to-rehire claim, Calderini extended an offer to
O'Gallagher before Giannone's name was brought to his attention.
(Def. 56.1 Stmt. ¶ 115; Pl. 56.1 Stmt. ¶ 115.) To defeat summary judgment, therefore,
Plaintiff must come forth with evidence tending to show that
Defendant's proffered reason is pretext.
Giannone contends that the individuals chosen instead of her
"were significantly less qualified." (Pl. Opp. Mem. at 19.) Such
a claim, even if true, does not show that Deutsche Bank's reason
is pretextual. In fact, it is consistent with Defendant's
explanation that Henrici, Gatto and O'Gallagher were promoted
because the decision-makers had trust and confidence in them.
See Williams-Velasquez v. Guardian Life Ins. Co., No. 99 Civ.
738 (LTS) (JCF), 2003 WL 2203857, at *11 (S.D.N.Y. Aug. 29, 2003)
("Plaintiff has failed to present any evidence that casts doubt
on Defendants' other proffered reason for promoting Rickenbaugh,
a reason independent of whether Williams' qualifications were
reviewed in good faith: that Rickenbaugh was a favored employee
because of his performance history."). As long as impermissible
factors did not come into play, Deutsche Bank could determine the
relative weight to ascribe to objective qualifications and the
subjective evaluations of the candidates' future supervisors.
See Scaria, 117 F.3d at 654-55 ("As between experience and
education, the IRS elected to value the first over the second in
filling the job, and there is nothing to show that this value
judgment was pretextual.") (citing Dale v. Chi. Tribune Co.,
797 F.2d 458, 464 (7th Cir. 1986) ("This Court does not sit as a
super-personnel department that reexamines an entity's business
decisions.")); Evans v. Port Auth. of N.Y. & N.J.,
192 F. Supp. 2d 247, 274 (S.D.N.Y. 2002) (holding that the plaintiff could not
show pretext by demonstrating that she was more qualified than
the individual actually selected because the defendant "would be
justified in regarding [that individual's experience] to be more
relevant" to the position than the plaintiff's).
Giannone also contends that the promotions of these three men
were discriminatory because Deutsche Bank failed to publicize
these vacancies. However, failure to post a vacancy does not give rise to an inference of
discrimination it merely relieves the plaintiff of her burden
to show that she applied for the position. Grant v. Morgan Guar.
Trust Co. of New York, 638 F. Supp. 1528, 1538 (S.D.N.Y. 1986)
("[T]he failure to post job notices, even if proven, is
insufficient to substantiate a claim of intentional
discrimination where there has been no showing of how the absence
of posting resulted in discrimination against the plaintiff.");
see Petrosino v. Bell Atl., 385 F.3d 210, 227 (2d Cir. 2004)
("[T]to be excused from the specific application requirement, an
employee must demonstrate that (1) the vacancy at issue was not
posted, and (2) the employee either had (a) no knowledge of the
vacancy before it was filled or (b) attempted to apply for it
through informal procedures endorsed by the employer.") (citing
Brown v. Coach Stores, Inc., 163 F.3d 706, 710 n. 2 (2d Cir.
1998)); Mauro v. S. New England Telecomms., Inc., 208 F.3d 384,
387 (2d Cir. 2000).
Accordingly, Deutsche Bank is entitled to summary judgment on
Giannone's claims that Defendant failed to promote her or rehire
her because she is a woman.
IV. Retaliation Claim
Plaintiff claims that she was terminated in retaliation for
complaining about Kissane's sexual harassment and discrimination
in 2000 and about Estes's sex discrimination two years later.
(Compl. ¶¶ 18, 28, 30, 33, 47-57.)
Title VII provides that "it shall be an unlawful employment
practice for an employer to discriminate against any of [its]
employees . . . because [such employee] has opposed any . . .
unlawful employment practice." 42 U.S.C. § 2000e-3(a). The HRL
and NYCHRL contain similar provisions. N.Y. Exec. Law § 296(e);
N.Y.C. Admin. Code § 8-107(7). Unlawful retaliation claims are
also governed by the McDonnell Douglas burden-shifting analysis, although the prima facie case is different. See
Van Zant, 80 F.3d at 714. To establish a prima facie case
for retaliation, a plaintiff must show that (1) she participated
in a protected activity; (2) the employer was aware of her
participation in the protected activity; (3) she was subjected to
an adverse employment action; and (4) there is a causal
connection between the two. Scott v. Coughlin, 344 F.3d 282,
287 (2d Cir. 2003); Van Zant, 80 F.3d at 714.
Giannone engaged in protected activity until just prior to her
termination. In 2000 and 2002 Giannone complained to H.R. that
Kissane sexually harassed her and paid her a reduced bonus
because of her gender. (Def. 56.1 Stmt. ¶¶ 16, 18; Pl. 56.1 Stmt.
¶¶ 16, 18; Walsh Aff. Exs. F, L.) Moreover, Plaintiff
specifically complained to H.R. in November 2002 that Estes was
discriminating against her on that basis. (Giannone Dep. at
Estes was not privy to these conversations, and there is no
direct evidence that Estes knew of Giannone's complaints of
discrimination. Thus, Deutsche Bank contends that Plaintiff has
failed to satisfy the second prong of her prima facie case.
However, at this stage, a plaintiff is not required to prove that
individual decision-makers had knowledge of the employee's
protected activity. Gordon v. New York City Bd. of Educ.,
232 F.3d 111, 116 (2d Cir. 2000); Fowler v. New York Transit Auth.,
No. 96 Civ. 6796 (JGK), 2001 WL 83228, at *3 (S.D.N.Y. Jan. 31,
2001); Alston v. New York City Transit Auth.,
14 F. Supp. 2d 308, 311 (S.D.N.Y. 1998). It is undisputed that Giannone's
complaints were within Deutsche Bank's corporate knowledge, which
is sufficient for purposes of the second prong of a prima facie
Nonetheless, the fact that Estes was unaware of Giannone's
protected activity may be relevant to the fourth prong "as some
evidence of a lack of a causal connection." Gordon,
232 F.3d at 117. In this regard, Giannone contends that Gorgas told Matis
that Plaintiff was terminated because she had complained about
Kissane and that Matis relayed this to Paul who then told Plaintiff. (Giannone Dep. at 221-22, 254-56.) There
is no evidence other than Plaintiff's testimony to substantiate
this Gorgas-to-Matis-to-Paul-to-Giannone daisy chain, which
consists of statements with hearsay infirmities.
On a motion for summary judgment, only admissible evidence may
be considered. Nora Beverages, Inc. v. Perrier Group of Am.,
Inc., 269 F.3d 114, 123 (2d Cir. 2001). Giannone contends that
Paul's statement to Giannone is not hearsay but a party
admission. Indeed, a statement by an opposing party's agent is
admissible against that party if the statement "concern[s] a
matter within the scope of the agency or employment, [and was]
made during the existence of the relationship." Fed.R.Evid.
801(d)(2)(D). Where, as here, the subject matter of the statement
is an adverse employment action, statements by co-workers fall
within Rule 801(d)(2)(D) if the co-workers were "supervisors or
significant participants in the decisions" at issue. Taylor v.
Potter, No. 99 Civ. 4941 (AJP), 2004 WL 1811423, at *18
(S.D.N.Y. Aug. 16, 2004); see Evans, 192 F. Supp. 2d at 262
(holding a statement outside the Rule because "[t]here is no
evidence that [the declarant] was plaintiff's supervisor or
played a role in any of the employment decisions").
Paul's statement to Giannone is not admissible as Deutsche
Bank's admission. Although Giannone devoted approximately "20
percent of her time" to Paul's projects even after Estes replaced
him in September 2002, he had ceded to Estes the authority to
evaluate Giannone, determine her bonus and terminate her. (Paul
Dep. at 26, 76.) Thus, even if Giannone was performing
assignments for Paul at the time of her termination, Paul's
statement to Giannone about the reasons for her discharge relates
to a matter beyond the scope of his employment. Moreover, Paul
played no role in Giannone's termination. Accordingly, his
statement to Giannone constitutes inadmissible hearsay, and this
Court may not consider it. Plaintiff's only other evidence of causation is the fact that
her termination occurred twelve days after she last complained of
discrimination. Though circumstantial, the temporal proximity
between Giannone's discharge and her complaints to H.R. is
sufficient to meet her minimal burden of establishing causation.
See Cifra v. Gen. Elec. Co., 252 F.3d 205, 217 (2d Cir.
2001). Thus, Plaintiff has satisfied her prima facie case.
The burden thus shifts to Deutsche Bank to articulate a
legitimate, non-retaliatory reason for Giannone's termination. As
discussed above in the context of Plaintiff's discrimination
claims, Defendant has satisfied its burden by presenting evidence
that Giannone was fired because she and Estes could not get
along. As such, Giannone "must point to evidence that would be
sufficient to permit a rational factfinder to conclude that the
employer's explanation is merely a pretext for impermissible
retaliation." Cifra, 252 F.3d at 216; see James,
233 F.3d at 154.
Plaintiff argues that she can establish pretext because
Deutsche Bank terminated her without first imposing a lesser
sanction, in contravention of its established progressive
discipline procedures. However, the measures Deutsche Bank
employs depend on the given situation (Gorgas Dep. at 47; Walsh
Dep. at 50-51), and there is no evidence that H.R.'s repeated
discussions with Giannone prior to her termination are
inconsistent with Defendant's progressive discipline
program.*fn1 Plaintiff also contends that Deutsche Bank's
reason differs from the reasons given on the Termination Form and
by Estes in her deposition testimony. Although this disparity
allows a jury to disbelieve Defendant's proffered reason, it does
not, by itself, permit a finding that retaliation was the real
reason for Deutsche Bank terminated Plaintiff. See James, 233 F.3d at 155-56. Moreover, Giannone has presented no evidence
to suggest that the acrimony between she and Estes had anything
to do with Plaintiff's complaints to H.R. Given the particular
weakness of Plaintiff's evidence of causation at the prima
facie stage, this Court concludes that Giannone has failed to
present sufficient evidence to permit a rational jury to believe
that retaliation was the real reason for Deutsche Bank's
termination decision. See Reeves, 530 U.S. at 148-49
("Whether judgment as a matter of law is appropriate in any
particular case will depend on . . . the strength of the
plaintiff's prima facie case, the probative value of the proof
that the employer's explanation is false, and any other evidence
that supports the employer's case."); see also Van Zant,
80 F.3d at 714 (summary judgment proper on retaliation claim where
plaintiff "put forward nothing other than conclusory allegations
to suggest a causal relationship").
Because Giannone is unable to make the required showing of
pretext, Deutsche Bank is entitled to summary judgment on
Plaintiff's claim of retaliatory discharge.
V. Motion for Leave to Amend the Complaint
Finally, Plaintiff seeks leave to amend the Complaint pursuant
to Rule 15(b) to add a breach of contract claim relating to the
1999 year-end bonus. The decision to grant or deny leave to amend
is within the discretion of the district court. United States v.
Cont'l Ill. Nat'l Bank & Trust Co. of Chi., 889 F.2d 1248, 1254
(2d Cir. 1989). Where, as here, discovery is complete, "the court
may deny the amendment as futile when the evidence in support of
the plaintiff's proposed new claim creates no triable issue of
fact and the defendant would be entitled to judgment as a matter of law under Fed.R.Civ.P.
56(c)." Milanese v. Rust-Oleum Corp., 244 F.3d 104, 110 (2d
Cir. 2001); see Foman v. Davis, 371 U.S. 178, 182 (1962).
Under New York law, "[t]he terms of an at-will employee's
employment may be modified at any time. The employee's only
option is to terminate the relationship; by continuing to remain
as an employee, the employee will be deemed to have ratified the
new relationship." Kempf v. Mitsui Plastics, Inc., No. 96 Civ.
1106 (HB), 1996 WL 673812, at *6 (S.D.N.Y. Nov. 20, 1996);
accord Stamelman v. Fleishman-Hillard, Inc., No. 02 Civ. 8318
(SAS), 2003 WL 21782645, at *3 (S.D.N.Y. July 31, 2003); Bottini
v. Lewis & Judge Co., 211 A.D.2d 1006, 1008, 621 N.Y.S.2d 753,
754 (3d Dep't 1995) ("[D]efendant was free to modify the terms of
plaintiff's employment, subject only to plaintiff's right to
leave his employment if he found the new terms unacceptable.").
Giannone acknowledges that her employment with Deutsche Bank
was at will (Pl. 56.1 Stmt. ¶ 3) but contends that the promised
bonus was not a "continuing term? of at-will employment such as
salary or full time status" but "a one-time payment" (Pl. Opp.
Mem. at 22). However, New York courts will only enforce a promise
to pay a bonus if the "bonus constitutes a term of employment and
there exists a reasonable basis for calculating it." Tsegaye v.
Impol Aluminum Corp., No. 01 Civ. 5943 (LMM), 2003 WL 221743, at
*8 (S.D.N.Y. Jan. 30, 2003) (citing O'Shea v. Bidcom, Inc., No.
01 Civ. 3855 (WHP), 2002 WL 1610942, at *3 (S.D.N.Y. July 22,
2002)). If, as Plaintiff contends, Kissane guaranteed her a
$225,000-$250,000 bonus, the bonus constituted a term of
employment, akin to annual salary, rather than a discretionary
perquisite. See Simas v. Merrill Corp., No. 02 Civ. 4400
(RCC), 2004 WL 213013, at *6 (S.D.N.Y. Feb. 4, 2004) (holding
that a signing bonus was a "term of employment" because it was to
be calculated as a set percentage of that employee's sales and
not dependent on the employer's discretion); cf. Truelove v. Northeast Capital &
Advisory, Inc., 95 N.Y.2d 220, 224 (2000) (holding a bonus
beyond N.Y. Labor Law § 190(1)'s definition of "wages" because
"plaintiff's share in the bonus pool was entirely discretionary
and subject to the non-reviewable determination of his
employer"). Because Giannone remained in Defendant's employ after
receiving a reduced bonus for 1999, she ratified the $175,000
bonus and forfeited her ability to pursue a breach of contract
claim on that basis. Cf. Mirchel v. RMJ Secs. Corp.,
205 A.D.2d 388, 389-91, 613 N.Y.S.2d 876, 878-79 (1st Dep't 1994)
(holding that summary judgment was improper on an at-will
employee's breach of contract claim for failure to pay a bonus
where the plaintiff resigned once he learned that his employer
would not pay the bonus as promised).
Accordingly, Plaintiff's proposed breach of contract claim
would be futile, and her motion for leave to amend is denied. CONCLUSION
For the foregoing reasons, Deutsche Bank's motion for summary
judgment is granted in part and denied in part. Specifically,
Deutsche Bank's motion is denied with respect to Plaintiff's
Title VII, HRL and NYCHRL claims for discriminatory discharge. In
all other respects, Deutsche Bank's motion for summary judgment
Plaintiff's motion for leave to amend the Complaint to add a
claim for breach of contract is denied.
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