The opinion of the court was delivered by: ROBERT SWEET, District Judge
Defendant Norddeutsche Landesbank Girozentrale ("Nord/LB", the
"Bank" or the "Defendant") has moved under Rule 56,
Fed.R.Civ.P., to dismiss the complaint of plaintiff Beverly Zakre ("Zakre"
or the "Plaintiff") alleging that Nord/LB discriminated and
retaliated against her in violation of Title VII of the Civil
Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the
New York State Human Rights Law, Executive Law § 296 et seq.,
and the Administrative Code of the City of New York § 8-107 et
seq., and to strike certain allegations from the affidavits of
Zakre, Sylvia Bier ("Bier"), Heidi Brown ("Brown"), Andrea
Rudzwick ("Rudzwick"), Aimee Srebrik ("Srebrik"), Maria Spinelli
("Spinelli"), and paragraphs of Plaintiff's Response to
Defendants' Statement of Undisputed Facts. For the reasons set
forth below, the motions to dismiss the complaint and to strike
Zakre filed her complaint on January 13, 2003, alleging that
the Bank discriminated against her because of her gender and
retaliated against her because of her opposition to unlawful
employment actions in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000e-2000e-17; the New York State
Human Rights Law, New York Executive Law §§ 296-301, and the
Administrative Code of the City of New York §§ 8-107-8-109, asserting that Zakre was better qualified for the position of
treasurer than the man who was appointed, that there was a
pattern of discrimination against women, that decision-makers
made discriminatory comments, and that the Bank has allowed the
man it hired to abuse and demote Plaintiff because of her gender
and because of her complaints of discrimination.
Discovery proceeded, and the instant motions were heard and
marked fully submitted on March 16, 2005.
The facts are set forth in the Defendant's Statement in
Compliance with Rule 56.1 ("Def. 56.1"), the Plaintiff's
Statement of Material Facts Pursuant to Local Civil Rule 56.1
("Pl. 56.1"), and Defendant's Reply to Plaintiff's Statement of
Purported Material Facts ("Def. R. 56.1"). The facts are not in
material dispute except as noted below.
Nord/LB is a German bank incorporated as a public law
institution in the State of Lower Saxony, one of the states of
the Federal Republic of Germany, engaging in a wide range of
commercial banking activities with branch offices in Germany and
in the world's leading financial centers, including New York,
Singapore and London. Nord/LB's headquarters are located in
Hannover, Germany (the "Head Office"). According to Nord/LB, it provides equal employment
opportunities to all of its employees in accordance with
applicable federal, state, and local laws and maintains an equal
employment opportunity policy that expressly prohibits
discrimination based on, among other things, sex, race, color,
religion, age, national origin and disability, a policy which is
monitored and enforced by its human resources department.
Zakre began her employment at Nord/LB on or about February 15,
1991 as a vice president and the treasurer of the New York
office. She had previously been employed by BfG Bank, which was
acquired by Nord/LB in 1991. While working at BfG Bank from 1982
to 1991, Zakre was a trader in its treasury department. Prior to
working at BfG Bank, Zakre was a trader in the treasury
department of the Canadian Imperial Bank of Commerce from 1976 to
As treasurer at Nord/LB, Zakre was responsible for, among other
things: (i) the maintenance and growth of Nord/LB's treasury
activities; and (ii) the development of new business as it
related to treasury activities. As treasurer, Zakre reported
directly to Jens Westrick ("Westrick"), the executive vice
president and general manager of the New York office. Zakre was
hired as treasurer before Nord/LB hired Westrick as general
manager of the New York branch. As treasurer at Nord/LB, according to Zakre, she was in charge
of all trading activities, which primarily included money markets
and foreign exchange, and, as Nord/LB was new to the United
States market, she was in charge of creating and developing the
treasury department. Zakre maintains that she introduced Nord/LB
to many new customers, which is denied by the Bank.
According to Zakre, during her time as treasurer she attempted
to institute new products, such as futures, floating rate
agreements, and swaps, but the Bank's systems were not prepared
to handle these products, and the Head Office was slow to grant
approval of these products. Zakre contends that she was also
restricted in her ability to introduce new products by the
capital constraints placed on Nord/LB's New York office by the
Head Office. These contentions are denied by Nord/LB which
maintains that Zakre lacked the ability to develop new customers
Rudzwick, assistant vice president and head of money markets
for Nord/LB, reported to Zakre when she was treasurer and thought
that Zakre did a very good job as treasurer. Liesenfeld,
Nord/LB's controller, also thought that Zakre's performance as
treasurer at Nord/LB was good.
In 1991, she was ranked "exceeds job requirements" in three
performance evaluations, including "leadership qualities." In
1993, the summary portion of her performance evaluation stated that she "performed commendably" and was never ranked below
"meets job requirements" in any category on any performance
evaluation from 1991 through 1993.
Whether the performance appraisals of Zakre for 1991, 1992 and
1993 pointed out significant inadequacies in managing the
treasury department is in dispute. Although Nord/LB maintains
that Zakre lacked the ability, on her own initiative, to develop
new customers and products for the treasury department and to
increase the profitability of the treasury department by
introducing new products, according to Zakre the performance
appraisal stated that she "is committed to her work, is
interested in expanding it and develops many fruitful
initiatives." According to Zakre, Nord/LB's systems had to be
updated before they could handle the new products that she
suggested, and her ability to introduce new products was
"frustrated by a lack of EDP-support as well as by slow responses
from Head Office regarding new trading proposals and Head Office
imposed limitations on Grundsatz and bank credit limits."
Whether Zakre asked Westrick for approval to introduce new
products into the department is in dispute.
Beginning in 1994, according to Nord/LB, its Head Office sought
to increase the profitability of the New York treasury department
and because of Zakre's performance it demoted Zakre from
treasurer and on June 3, 1994 hired Sean Bovenizer ("Bovenizer")
as the treasurer of the New York office. Zakre consulted a lawyer
concerning a claim of gender discrimination but did not pursue a
claim because she thought such a claim would jeopardize her job.
Her reasons for not pursuing a claim are disputed.
Zakre was the most senior woman in Nord/LB's New York office.
Zakre thought that she was capable of maintaining the position of
treasurer and that Westrick was uncomfortable with her managing
an area because she was a woman. Others also noticed that
Westrick did not treat Zakre in the same way he treated men and
that he was uncomfortable dealing with women. Zakre did not tell
anyone at Nord/LB that her demotion was due to her gender.
Nord/LB has challenged Zakre's testimony for lack of specificity.
Brown, a human resources manager for Nord/LB at the time,
thought that Zakre did a very good job as treasurer and was
shocked when Zakre was demoted and Bovenizer was hired as the
treasurer. It appeared to Brown that Westrick decided to hire
Bovenizer and demote Zakre because he preferred dealing with a
man. Nord/LB has challenged Brown's allegations as conclusory and
without personal knowledge.
Bovenizer was previously employed as the treasurer of a large
financial institution and managed its treasury department for six
years, and Nord/LB believed he had the expertise and experience
required for the growth of the treasury department. According to Nord/LB, shortly after Bovenizer commenced employment at the
Bank, he took the lead in developing the Capital Markets practice
in the New York office, and Bovenizer also reached the Bank's
goals of implementing new products and expanding the treasury
department. Whether Bovenizer or Zakre developed the Bank's
Capital Markets practice is in dispute.
Nord/LB did not change Zakre's title as vice president, and
placed Zakre in the role as the head of the Capital Markets area,
a sub-group within the treasury department, nor did it decrease
her salary. Zakre was given freedom to run the Capital Markets
practice, although she thought she had been replaced because she
was a woman. Zakre reported directly to Bovenizer who, until
December 1996, reported directly to Westrick. Zakre's performance
during the time she reported to Bovenizer is in dispute.
After December 1996, at the direction of the Head Office,
oversight of the treasury activities of all of the Bank's
international offices shifted from each branch office to the head
of the Bank's treasury department located in the Head Office,
although Westrick continued to be involved in the management of
the treasury department.
Bovenizer began to report directly to Jurgen Kosters
("Kosters") in the Head Office. Kosters is a member of the Bank's board of management (the German equivalent of a board of
directors in the United States), none of whom are women, and is
responsible for the Bank's treasury departments throughout the
world. The supervisory board of Nord/LB consists of thirty-three
people, five to 10 of the members of which are women. Kosters
reports to the Bank's supervisory board.
From 1994 through 2000, Zakre was in charge of the capital
markets group. Her responsibilities included establishing
Nord/LB's securities portfolio, which grew from being nonexistent
to having assets of over five billion dollars. According to
Zakre, she implemented new products, such as collateralized debt
obligations, asset backed securities, mortgage backed securities,
and municipal bonds, which implementation is denied by the Bank.
While Zakre was in charge of capital markets, the group also
introduced credit derivatives to Nord/LB. In addition, Zakre
maintained an extensive network of senior level contacts in the
investment banking community. According to Nord/LB, her
performance appraisals noted her need to develop product
Whether Zakre failed to increase her product knowledge and to
implement new products in the treasury department is in dispute.
Spinelli worked for Nord/LB's New York branch as an assistant
vice president and senior portfolio manager from September 1998 until June 2003. Throughout her time at Nord/LB,
Spinelli reported to Zakre. Prior to working at Nord/LB, Spinelli
had fourteen years of banking experience.
According to Spinelli, because Bovenizer did not have much
experience in areas covered by capital markets, he gave Zakre a
great deal of freedom to run the department. Spinelli thought
that overall Bovenizer was a good treasurer, but that Zakre was
more knowledgeable in capital markets and structured products
than he was. Spinelli's allegations are denied by Nord/LB as
being conclusory and without personal knowledge.
According to Zakre, Bovenizer told Zakre that she was doing a
very good job. According to Nord/LB, the consistency of her
statement is in dispute.
Bier also recognized that Zakre was successful as head of
capital markets, respected by her counterparts, and given control
of the treasury department in Bovenizer's absence. Bier's
allegations are disputed by Nord/LB as conclusory and without
During the years that Zakre received performance evaluations
between 1994 and 2000, she was ranked "met job requirements" in
28 categories and "exceeded job requirements" in 14 categories. Beginning in 1998, the profits of the Capital Market Group
started to decline, but in her 1998 performance evaluation, Zakre
was rated "exceeded job requirements" in three categories. In
1996, comments on Zakre's performance included, "This officer has
had an exceptional year." In her 1997 performance evaluation,
Zakre was rated "exceeded job requirement" in four categories. In
addition, this performance evaluation stated that Zakre "has done
a first rate job and achieved objectives."
In 2000, Zakre, in response to a performance review by
Bovenizer with which she was dissatisfied, stated, "I am
disappointed that the review implies that I've done a mediocre
job when in fact I've been instrumental in making this a banner
year for the Treasury and the Branch as a whole," and expressed
her frustration that she had made such a significant sum for
Nord/LB in 1999, but had not received bonus compensation that
reflected the profitability of the Capital Markets group.
In a separate memorandum, also responding to her performance
review, she wrote that: "It seems obvious to me that my
perception of my performance differs substantially from that of
the Bank," and that "I feel my performance, as evidenced by our
substantial improvement in profitability, was not fairly
represented, and request that you reconsider and adjust my
compensation to reflect my performance." Zakre met with both
human resources and Kosters after she sent this memorandum, but
her compensation was not adjusted. Zakre has submitted evidence that
according to Birgit Elchoueri ("Elchoueri") that Westrick had
control over compensations for employees in the treasury
department in New York.
Zakre did not complain that her performance evaluation or bonus
compensation for 1999 were based on her sex.
In November 2000, Bovenizer announced that he was retiring from
Nord/LB early the following year and, according to the Bank, he
told Kosters that the Bank should hire an external candidate to
replace him and that Zakre, whom he had supervised for almost
seven years, was not his first choice for his replacement.
According to Zakre, Bovenizer told her that he had advised
Kosters that Zakre was capable of taking over his position.
Kosters instructed Westrick to contact an executive search firm
in New York to assist the Bank in its search for a new treasurer.
Zakre became acting treasurer after Bovenizer retired. Her
responsibilities, whether complete or administrative, are in
Rudzwick, who reported to Zakre when she was performing these
responsibilities thought Zakre did a very good job as acting
treasurer and assumed that Zakre would succeed Bovenizer as
treasurer since Zakre was fully qualified for the position. In addition, Spinelli thought Zakre was fully qualified to assume
the treasurer position on a permanent basis. Nord/LB has
challenged these allegations as conclusory and without personal
Kosters directed Westrick to screen the candidates presented by
the executive search firm and to propose three individuals to be
interviewed by Kosters in Hannover. Although Kosters works and
lives in Germany, according to Nord/LB, he is cognizant that in
the United States it is illegal to base hiring decisions on an
individuals gender or to retaliate against an individual for
making a complaint of discrimination. Kosters' familiarity with
discrimination and retaliation laws is in dispute.
Kosters told Westrick that he was looking for an individual who
could elevate the treasury department to new levels. His
motivation is denied by Zakre.
In March 2001, Westrick contacted Danelle Dann International,
Inc. ("Danelle Dann"), an executive search firm the Bank had
retained in connection with hiring male and female employees.
According to Westrick, he informed Danelle Dann that the bank was
looking for an individual with: (i) significant experience in
charge of managing treasury activities; (ii) extensive market
knowledge of treasury products and investment banking activities;
(iii) knowledge of the products in the Bank's treasury
department; and (iv) a professional demeanor, good presence and strong communication skills. His testimony as an
interested witness is challenged by Zakre.
In May 2001, Zakre traveled to Germany to attend a strategy
meeting. During her time in Germany, she met with Kosters and
told him that she was qualified to be treasurer and wanted to be
considered for the permanent treasurer position. According to
Zakre, Kosters responded that she would be considered with
outside candidates, a statement denied by Nord/LB.
From 1996 to 2001, Zakre occasionally reported to Kosters on
the state of the Capital Markets group and delivered
presentations to him. She also reported directly to him from
March through September 2001.
According to Nord/LB, based on his personal interactions over
an extended time with Zakre and his knowledge of the performance
of the Capital Markets group, Kosters concluded that she was
merely an average employee and lacked the communication skills
necessary for a high level representative of the Bank, and, in
essence, she was neither sufficiently dynamic nor innovative,
conclusions denied by Zakre as those of an interested witness.
Zakre testified that she knew of no statements made by Kosters
related to gender in connection with his hiring of Gajano, and she has denied that Kosters was solely responsible for the
According to Nord/LB, Kosters informed Zakre that the Bank
wanted to hire an external candidate and, if they were not able
to do so for price limitations or other reasons, only then would
the Bank consider internal applicants. Zakre has denied this
version of the conversation.
In May 2001, Zakre also told Liesenfeld that she wanted to be
considered for the treasurer position. According to Zakre,
Liesenfeld told Westrick that Zakre wanted to be considered for
the treasurer position, a contention denied by Nord/LB.
Thereafter, in the spring of 2001, Danelle Dann provided
Westrick with the resumes of approximately fifteen individuals
for the Bank's consideration, only one of whom was a woman. After
reviewing the resumes, Westrick interviewed approximately ten
individuals whom he felt possessed the necessary qualifications,
not including the female candidate. Thereafter, Westrick selected
three individuals for Kosters to consider, Alessandro Gajano
("Gajano"), Howard Freeman ("Freeman"), and Daniel Koval
Westrick has contended that he chose these candidates for
Kosters' consideration because each candidate: (i) had previously
been a manager in charge of a treasury department of a bank; (ii) was familiar with a broad range of financial products; (iii) had
access to a broad range of clients, such as investment banks and
insurance companies; and (iv) presented himself in a professional
manner with the kind of presence and communication skills that
Kosters was looking for in a treasurer. This contention is denied
Kosters requested that Westrick provide him with a list of
candidates to be considered for the treasurer position. Westrick
did so, and did not include Zakre or any internal candidates on
the list. The only candidates included on Westrick's list were
those supplied by Danelle Dann. Westrick did not ask Danelle Dann
why only one candidate was a woman, nor did he request that the
pool of applicants be diverse in terms of gender or race. Nord/LB
has challenged this characterization of Westrick's testimony.
According to Zakre, Prior to recommending candidates for
treasurer in 2001, Westrick had said words to the effect, "We
have too many women officers in the Bank," a statement denied by
the Bank. At the time that Westrick made that statement,
according to Zakre, there were only a few women officers at
Nord/LB, and there were no women officers running a department.
Westrick is alleged to have commented to a female employee of the
Bank, "Oh, you women think differently than men," and also made a
comment about another female employee after she left Nord/LB,
asking if the woman worked at Nord/LB to do work or to find a boyfriend. These statements
are challenged by Nord/LB as conclusory and irrelevant.
In addition, according to Zakre, Westrick avoided speaking with
women, and always spoke to a man whenever possible, did not
accept opinions of senior women, and strictly asked opinions of
senior men, allegations denied by Nord/LB.
Allegations that Westrick also excluded women from management
meetings and avoided taking women on business calls are denied by
Nord/LB which noted that Zakre did not provide an instance of
Westrick's inability to work with her. Allegations that Westrick
was particularly hostile to women who were assertive are denied
by Nord/LB as conclusory and lacking personal knowledge.
According to Westrick, he informed Kosters that Freeman was his
first choice for the position. This is denied by Zakre based upon
a statement alleged to have been made by Westrick.
According to Nord/LB, Westrick presented the candidates to
Kosters and was not involved in the decision to hire the
treasurer, which was made entirely by Kosters. Based upon a
statement alleged to have been made by Kosters, Zakre has denied
that the choice was made by Kosters. According to Nord/LB, Kosters believed that each of the
proposed candidates had the requisite experience and background
for the treasurer position and decided that Gajano was the best
candidate for the position. According to Zakre, Westrick made the
According to Elchoueri, Brown, and Spinelli, Westrick generally
resisted promoting women and would not approve promotions to
women at the highest levels of management, allegations which the
Bank denies, pointing out that during the time Westrick was the
general manager of the New York branch he had promoted four women
to assistant vice president, three women to vice president, five
women to assistant treasurer, and one woman to risk controller.
The bank also points out that one of Westrick's direct reports
was a woman and notes that Elchoueri was promoted by Westrick.
Further, Nord/LB denied Elchoueri, Brown, and Spinelli's
allegations as lacking personal knowledge.
According to Elchoueri, when Westrick was informed that Zakre
wanted to be considered for the treasurer position, he "smirked"
and said, "Well, we all know that that is out of the question,"
allegations which Nord/LB has denied and considers conclusory.
When Westrick provided his recommendations of candidates for
treasurer to Kosters, he included information that is illegal to consider, such as the candidates' national origin, age, and
marital status, which, according to Kosters, he did not consider.
It was obvious from the names of each candidate that they were
In 2001, Srebnik was a foreign exchange dealer for Nord/LB.
Srebnik had previously worked with Gajano at Banco di Napoli.
When Srebnik learned that Gajano was being considered for the
treasurer position at Nord/LB, she met with Westrick and
explained to him that Gajano had been verbally abusive to her
when she worked for him at Napoli and that Gajano had treated her
differently from the male employees. Srebnik told Westrick that
she was concerned that if Gajano was hired at Nord/LB he would
subject Srebnik to verbal harassment and differential treatment.
Srebnik also told Liesenfeld that Gajano had discriminated
against her on the basis of her sex at Banco di Napoli. According
to Zakre, Srebnik's allegations were relevant to Nord/LB's
decision to hire Gajano. Nord/LB has characterized Liesenfeld's
testimony differently to the effect that nothing could be done
about Gajano's conflict at another institution.
Westrick did not discuss Srebnik's concerns with anyone else at
Nord/LB before including Gajano as one of his three
recommendations to Kosters. Kosters and Westrick decided that Srebnik's allegations that
Gajano had discriminated against her based on her sex at Banco di
Napoli were "not important for [their] decision [to hire Gajano]
and not important for the working together between Ms. Srebnik
and Gajano" and that events at another institution did not
warrant a decision not to hire Gajano.
Elchoueri, who worked in Nord/LB's human resources department,
believed that Westrick preferred Gajano because he thought Gajano
would drive women out of Nord/LB. When she shared her belief with
Andrea Hollandt ("Hollandt"), human resources manager for
Nord/LB, and with Liesenfeld, neither disagreed with her. Nord/LB
has denied these allegations and has characterized them as
surmise and conjecture.
According to Elchoueri, after learning about Srebnik's
allegations that Gajano had discriminated against her at Napoli,
Westrick said he thought Gajano was the best choice for
treasurer. This allegation has been denied by Nord/LB which
maintains that after meeting with Srebnik, Westrick recommended
Freeman to Kosters as treasurer.
Westrick included Gajano as one of his three recommendations to
Kosters, and excluded Zakre from consideration, even though
according to Zakre she was more qualified for the treasurer
position than Gajano. According to Spinelli and Rudzwick, Zakre had experience with a broader spectrum of
financial products, more trading experience, and had more
management experience than Gajano. ...