United States District Court, S.D. New York
November 2, 2005.
BEVERLY ZAKRE, Plaintiff,
NORDDEUTSCHE LANDESBANK GIROZENTRALE, Defendant.
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. Nord/LB has denied these
allegations and characterized them as conclusory and without
After Srebnik learned that Gajano had been hired by Nord/LB,
she hand-delivered a memorandum to Westrick reiterating her
concerns about Gajano. Srebnik also sent a copy of her memorandum
to Kosters. Kosters was aware of Srebnik's complaint about Gajano
prior to the time Nord/LB hired Gajano. According to Nord/LB,
Kosters, however, thought Srebnik's allegations that Gajano had
discriminated against her based on her sex at Napoli were "not
Despite being put on notice that Gajano had discriminated
against Srebnik on the basis of her sex at Napoli, Nord/LB hired
Gajano. Gajano had been employed in the banking industry for more
than twenty years. Prior to joining Nord/LB, Gajano worked in the
treasury department of Banco di Napoli's New York office for more
than ten years, first as a trader and then as the treasurer for
According to Spinelli, Kosters later told her that the decision
to hire Gajano had been made by Westrick. These allegations have
been denied by Nord/LB which has maintained that the decision was
made by Kosters. Kosters testified that he found Gajano to be dynamic,
success-oriented, and full of initiative, and that he believed
that as treasurer Gajano could successfully represent the Bank to
its clients, testimony which is that of an interested witness and
inconsistent, according to Zakre.
Gajano commenced his employment with Nord/LB on or about
September 17, 2001. Shortly thereafter Gajano evaluated the
various procedures established by Bovenizer and initiated certain
changes in the treasury department. He required that the managers
of the treasury department's sub-groups produce weekly status
reports and a report after every trade and also demanded that all
sub-group heads continuously keep him informed of developments
In addition, upon commencing employment with Nord/LB, and in
order for Gajano to effectively manage the department, it was
necessary for Gajano to familiarize himself with the treasury
department's guidelines, processes, and procedures. According to
Zakre, he was not familiar with the products in which Nord/LB
invested. In this regard, Gajano asked all employees in the
treasury department to provide him with certain information, such
as the Bank's proprietary investment guidelines and procedures.
According to Nord/LB, while serving as treasurer of Banco di
Napoli, Gajano restructured the treasury department and implemented new products, and had extensive knowledge of numerous
financial products, a claim which is denied by Zakre who has
maintained that her experience and knowledge are superior to
After Gajano was hired, Zakre asked Kosters why Gajano was
chosen to be treasurer and she was not. According to Zakre,
Kosters originally said it was because Gajano had more trading
experience and when Zakre told Kosters that this was not true,
Kosters said it was because Gajano had more client contacts than
Zakre. Nord/LB has denied that Kosters made the statements and
that trading experience was relevant.
According to Zakre, after Gajano was hired, he told her that he
had no intention of trading. Gajano told Rudzwick to take his
name off a trading report because he was not going to be trading.
Nord/LB has denied this statement.
According to Nord/LB, Zakre repeatedly failed to provide Gajano
with the information he requested. According to Zakre, she
provided what was requested except for guidelines which had not
been agreed to. Also, upon his arrival at the Bank, Gajano
terminated a male employee in the treasury department who had,
according to Zakre, lost substantial sums for the Bank. Gajano has not terminated a female employee of the treasury
department since his arrival at Nord/LB. According to Zakre, all
women working for Gajano, except Zakre, have left the bank, some
of whom have stated that they left because of Gajano's treatment
According to Zakre, several women other than Zakre believed
that they were denied job opportunities, promotions, or career
advancement at Nord/LB because of their sex, and many women
resigned from Nord/LB because of these reasons and because
Nord/LB allowed Gajano to retaliate against Plaintiff for
complaining about discrimination. These allegations have been
denied by Nord/LB and characterized as surmise and conjecture.
In September 2001, after Srebnik gave Westrick her memorandum
concerning Gajano, she met with Liesenfeld. Liesenfeld asked her
if she was resigning, and she said that she was not. Srebnik told
Liesenfeld that she was concerned that Gajano would discriminate
against her at Nord/LB, especially because she was pregnant.
After Gajano started working at Nord/LB, Srebnik met with
Westrick and Hollandt. Westrick told Srebnik that he had informed
Gajano of her concerns and that he wanted her to discuss the
situation directly with Gajano.
On September 20, 2001, Srebnik met with Gajano, Hollandt and
Zakre regarding her concerns about Gajano. According to Srebnik, Gajano was very hostile toward Srebnik during the
meeting, a characterization denied by Nord/LB.
According to Rudzwick, Gajano had previously told Hollandt that
Srebnik would not be returning from maternity leave, claiming
that that is what Rudzwick told him. She also contends that when
she told Gajano that Srebnik would be returning from maternity
leave, Gajano told Rudzwick that Nord/LB was eliminating
Srebnik's position and that if Rudzwick wanted to keep Srebnik
she would have to find something for Srebnik to do. Nord/LB has
denied this statement and characterized it as surmise and
According to Srebnik, in October 2001, Hollandt told Srebnik
that Gajano had told her that Srebnik would not be returning from
maternity leave. In this same general time, Bob Nolin ("Nolin")
and Rosa Morngallo ("Morngallo"), Banco di Napoli employees, told
Srebnik that Gajano had said to them that Srebnik would not be
returning from maternity leave. Nord/LB has denied this
In November 2001, Gajano called Srebnik into his office. He
told her that he was "disappointed" with the letter she had
written about him before he started, and tried to discuss the
issues raised in her letter. According to Srebnik, she refused
because his tone was hostile and he was making her very uncomfortable. Nord/LB has denied this characterization of the
In late November 2001, Srebnik came across an e-mail message
from Gajano to Wilifred Bock, the global head of foreign exchange
trading for Nord/LB, that Gajano had apparently discarded. The
e-mail was dated November 27, 2001, and had the heading "Rate-Re:
FX Orders." FX is the shorthand used within the industry for
foreign exchange. In the e-mail Gajano referred to the
"lackluster results" achieved by the "current competencies" in
the department. At the time, Srebnik was the only FX trader.
Gajano also wrote that, "If and when the Bank wants to make a
commitment in the FX markets in NY I will make sure that the
right competence is found and recruited to achieve preset
objectives. . . ." All of Srebnik's performance reviews at
Nord/LB had been excellent.
Srebnik began maternity leave on January 4, 2002 and gave birth
on January 28, 2002. Prior to returning to Nord/LB from leave,
Rudzwick told Srebnik that Nord/LB had decided to eliminate
foreign exchange trading. According to Srebnik, she had kept in
contact with the person handling the foreign exchange trades
during her maternity leave and knew that there was no decrease in
activity during her leave. Nord/LB had denied the allegations
concerning the level of trading. According to Rudzwick, she told Srebnik that Gajano had said
that he did not have a place for Srebnik within Nord/LB, that if
Rudzwick wanted Srebnik back, she had to find something for
Srebnik, and that Gajano appeared surprised when Rudzwick was
able to put together a proposed position. These statements have
been denied by Nord/LB.
During her maternity leave, on April 5, 2002, Srebnik sent a
memorandum to Westrick, with a copy to Liesenfeld, stating her
concerns regarding Gajano, and informed them that Gajano had made
comments to other bank employees that she would not be returning
to work after maternity leave. According to Rudzwick, Gajano
claimed that Rudzwick said Srebnik was not returning after leave,
although Rudzwick specifically told Gajano that Srebnik would be
returning. Srebnik's memorandum also stated that Gajano
questioned her competence as a trader, and that Gajano was
involved in the decision to eliminate all of the foreign exchange
trading in the New York branch, which essentially eliminated her
job duties. Nord/LB has denied the statement attributed to
According to Srebnik, she was presented with three options for
a position upon her return from leave. Because she had no other
choice, she accepted one of the options, which was a position as
a corporate trader. According to her, she asked for a title such
as vice president or assistant vice president, which would be
necessary to obtain the meetings required of the corporate trader; Gajano refused. Nord/LB has denied that she asked for the
title and has noted upon her return there was no change in her
salary, benefits, or title.
Srebnik returned from maternity leave on April 15, 2002. During
her first week in the office, Gajano ignored her until Friday.
According to Srebnik, on or about April 17, 2002, she met with
Liesenfeld regarding her April 5, 2002 memorandum, who offered no
solution and suggested that she have another meeting with
Westrick. Srebnik contends that Nord/LB did nothing to address
the concerns she raised. Nord/LB has denied that she made a
complaint after her return.
According to Srebnik, she resigned from Nord/LB because it was
not possible for her to succeed in her new position and because
Nord/LB management ignored her repeated pleas that they address
her concerns about discrimination. Nord/LB has denied this reason
for her resignation which it contends is contradicted by her
According to Srebnik, after she left Nord/LB, Gajano had all of
the resumes of the individuals who had applied to fill the
position sent to his home, so that no one else could see who had
applied. According to Rudzwick, Gajano told Rudzwick that he
would not hire a woman for the position. Nord/LB has
characterized her allegations as surmise and conjecture. According to Srebnik, Gajano hired Nolin to replace her as
corporate trader at Nord/LB and he was given the title of
corporate trader, assistant vice president, a title Srebnik had
requested but Gajano had refused to give to her. Srebnik also
contends that Nolin was also given a higher salary than Srebnik
had received. Nord/LB denies that Nolin was given a higher salary
and has stated that Srebnik's title was assistant treasurer.
According to Srebnik, she retained attorneys and filed a charge
alleging that Nord/LB discriminated against her on the basis of
her sex with the Equal Employment Opportunity Commission ("EEOC")
and decided not to pursue litigation after the EEOC dismissed her
case without conducting an investigation. Nord/LB denies the
reason for the dismissal, stating that the EEOC conducted an
investigation and was unable to conclude that discrimination had
Rudzwick worked for Nord/LB in the New York branch from 1990
through December 2002. She was promoted to vice president in
Nord/LB's treasury department in February 2000.
According to Rudzwick, while she was a trader, Nord/LB hired a
man as foreign exchange trade and Westrick commented, "Now we
will see what real trading is." Nord/LB has denied this statement
and characterized the statement as surmise and conjecture. Rudzwick had received a Masters Degree in finance. According to
Rudzwick, the man hired as a foreign exchange trader did not have
any graduate degree and was less qualified than Rudzwick, but was
paid more than Rudzwick. Nord/LB has denied that he was less
qualified and paid more and has characterized her statement as
having been made without personal knowledge.
According to Rudzwick, initially she was assertive at Nord/LB,
causing her difficulty in dealing with Westrick, and she received
low raises and bonuses. She contends that once she began to act
less assertive and more submissive, Westrick ignored her but
increased her raises and bonuses. Nord/LB has denied that
allegation stating that it is based on surmise and conjecture.
According to Rudzwick, on one occasion, Westrick was standing
right behind her and discussing how beautiful he thought a female
analyst was. Nord/LB has denied the allegation as based on
surmise and conjecture.
Rudzwick resigned from Nord/LB on December 15, 2002. According
to Rudzwick, she resigned because on many occasions she had
complained about Gajano's behavior to Liesenfeld and Hollandt,
Nord/LB had not taken any action, and she decided that she could
not continue to work at Nord/LB if Nord/LB was going to continue
to allow Gajano to retaliate against Zakre. The Bank has denied
the reason for the resignation and her complaints and has stated that
she received an offer from another financial institution.
According to Rudzwick, after she resigned Gajano told her that
Kosters had ordered Gajano to be nice to her, and that Nord/LB
was using Rudzwick as a pawn against Zakre. Nord/LB has denied
the allegations and characterized them as surmise and conjecture.
According to Rudzwick, her bonus had increased after Nord/LB
received the letter from Zakre's counsel stating that Zakre had a
claim for sex discrimination. The Bank has denied the allegation
According to Spinelli, when she was hired at Nord/LB she
requested the title of vice president, and although Bovenizer was
in favor of giving her the title, Westrick told her that she
could not be hired as a vice president because there were current
employees who were awaiting promotion to that title who would be
upset if she was given it upon hiring. According to her, she
agreed to begin employment as an assistant vice president but
said that she wanted to be promoted to vice president in a year,
and Westrick agreed. Nord/LB has denied that Westrick had any
responsibility in her promotion.
According to Spinelli, she was never promoted to vice president
and Bovenizer told her on several occasions that he supported her promotion, but that Westrick would not approve it.
Nord/LB has denied the statements attributed to Bovenizer and
Westrick's responsibility and has noted Zakre's comments on
According to Spinelli, when Gajano was hired, he also refused
to promote her, claiming that he did not know enough about her.
Nord/LB has denied this allegation, stating that the decision not
to promote was made by Kosters.
According to Spinelli, Gajano, however, hired Schmidt as a vice
president in treasury in March 2002, even though Gajano did not
know anything about Schmidt and Schmidt was unfamiliar with
several of the products used by Nord/LB's treasury department.
Nord/LB has denied her allegations, stating that she lacks
According to Spinelli, she noticed that Gajano treated women
with less respect than he treated men and was particularly
hostile and abusive to Spinelli and Zakre and often belittled
Spinelli and Zakre in front of Schmidt and other employees.
Nord/LB has denied her allegation, stating a lack of personal
According to Spinelli, she complained to Liesenfeld about
Gajano's abusive conduct, but Liesenfeld did not take any action. Nord/LB has denied that she complained of discrimination and
stated that she complained that Gajano required too much
administrative work. Gajano made it difficult for Spinelli to
perform her job by giving her conflicting instructions. Spinelli
complained to Kosters about Nord/LB's refusal to promote her, and
her belief that she had not been promoted because she was a
woman, that Gajano was making it difficult for capital markets to
perform well, and that Gajano was creating a hostile environment.
Kosters told Spinelli that he was aware that there were
problems with Gajano and Zakre and Srebnik. Kosters told Spinelli
that he and Westrick had determined that Gajano would stay at
Nord/LB. Kosters also told Spinelli that he and Westrick were
"not happy" that she had complained about Gajano to Liesenfeld.
Even though Spinelli was a senior portfolio manager, Gajano
refused to let her sell portions of certain portfolios and
required her to do work more appropriate for a junior credit
According to Spinelli, she considered pursuing a claim of sex
discrimination against Nord/LB because of Nord/LB's refusal to
promote her and because of Gajano's treatment of her, but
ultimately decided not to pursue a claim, and instead resigned.
Nord/LB has alleged that when she resigned she stated that her
opportunities were limited because Zakre was her supervisor. Elchoueri worked for the New York branch of Nord/LB from
October 1998 until October 2001 as Liesenfeld's deputy and
started at Nord/LB with the title of an analyst. According to
Elchoueri, although she had a college degree, her salary was the
same as a male clerk who did not even have a high school diploma.
Nord/LB has denied the allegations concerning the clerks'
qualifications and salary and has characterized them as surmise
Although Elchoueri was Liesenfeld's second-in-command, she was
not allowed to fill in for him at management meetings with
Westrick. According to Elchoueri, instead, John Kane ("Kane"), an
accounting manager, would fill in for Liesenfeld, even though
Kane's functions and experience did not make him an appropriate
choice. Nord/LB has denied the allegation concerning his
qualifications and experience and characterized it as surmise and
According to Elchoueri, the management meetings with Westrick
were essentially a "boys' club," with women almost never allowed
to attend. Nord/LB has denied the allegation and characterized it
as surmise and conjecture.
According to Elchoueri, she was promoted to assistant treasurer
in 2001, and Liesenfeld recommended that her salary be increased
from $3,750 per month to $5,000 per month. This was approved by
Nord/LB's head office, but Westrick reduced Elchoueri's raise by $500 per month. Nord/LB has denied the allegation of the
reduction by Westrick and characterized it as not based on
According to Elchoueri, after she received the raise,
Liesenfeld told her to thank Westrick and she refused because
Westrick had reduced her raise. When Westrick found out about
this, he told Liesenfeld that Liesenfeld would never be promoted
to senior vice president because Liesenfeld "couldn't control
that woman." Nord/LB has denied this allegation and characterized
it as surmise and conjecture.
According to Elchoueri, when she resigned in October 2001, she
told Liesenfeld, "We both know that women don't make it here. We
both know why I'm leaving" and Liesenfeld replied, "I hate to see
you go, but it is best that you do." Nord/LB has denied this
allegation and characterized it as surmise and conjecture.
Elchoueri currently works at Landesbank Baden-Wurttemberg
("LBBW") with three other women who worked at Nord/LB. Although
none of them were able to advance their careers at Nord/LB, at
LBBW they have all achieved the title of vice president, and two
have become department heads. Nord/LB has denied knowledge about
the allegation and characterized it as irrelevant. Sylvia Bier ("Bier") worked for the New York branch of Nord/LB
as a human resources manager from 1997 through September 2000,
reporting to Liesenfeld.
According to Bier, she found Westrick very difficult to deal
with, and it appeared to her that he did not have high regard for
the women in the office. Nord/LB has denied this allegation and
characterized it as surmise and conjecture.
According to Bier, other women complained to Bier about
Westrick's treatment of them and Bier told Liesenfeld about these
concerns, but Liesenfeld disregarded these complaints. Nord/LB
has denied the allegation and characterized it as surmise and
According to Bier, in or about the spring of 1999, Bier was
hospitalized for an ectopic pregnancy; prior to this time, no one
at Nord/LB had told her of any problems with her job performance.
She contends that after she returned from her hospital stay,
Liesenfeld and Westrick were aware that she had been pregnant,
her relationship with both of them deteriorated, and they became
critical of her performance. Nord/LB has denied these allegations
and stated that it has no knowledge as to her actions and
impressions. According to Bier, in January 2000, she informed Liesenfeld and
Westrick that she was pregnant again. Her relationship with both
of them became significantly worse after that. Nord/LB has denied
these allegations and stated it has no knowledge as to her
actions and impressions.
According to Bier, she began maternity leave in June 2000; she
planned to take twelve weeks off, as she was guaranteed this
amount of leave by the Family and Medical Leave Act and told
Liesenfeld that she planned to take twelve weeks of leave.
Nord/LB has admitted the maternity leave but stated it has no
knowledge of her actions or impressions.
According to Bier, after she had been on maternity leave
approximately eight weeks recuperating from a C-Section,
Liesenfeld called her and told her that Nord/LB wanted her to
come back to work right away, and that if she did not she would
lose her job; Bier told Liesenfeld that she understood that she
was entitled to twelve weeks of maternity leave and that she had
intended to take twelve weeks off. According to her, Liesenfeld
reiterated that if she did not return to work by Monday, Nord/LB
would fire her. Nord/LB has denied these allegations and stated
that it has no knowledge as to her actions and impressions.
According to Bier, because of Nord/LB's demand, Bier returned
to work in August 2000, approximately eight or nine weeks after she began maternity leave. While admitting the return,
Nord/LB has denied these allegations and stated it has no
knowledge as to her actions and impressions.
According to Bier, Westrick did not support the human resources
department of Nord/LB and at one point Bier offered to facilitate
an anti-discrimination and anti-harassment program, but was told
that Nord/LB managers and employees did not need that type of
training. Whether or not managers at Nord/LB received any
training in equal employment opportunity policies or in
anti-harassment policies, and whether or not human resources
employees at Nord/LB received training in equal employment
opportunity policies or in anti-harassment policies is disputed.
In September 2000, Bier resigned from Nord/LB because of the
way it had handled her maternity leave. Nord/LB has denied these
allegations and stated it has no knowledge as to her actions and
Brown worked for Nord/LB as a human resources manager from
March 1994 until July 1997 and she reported directly to
Liesenfeld and indirectly to Westrick.
According to Brown, prior to working at Nord/LB, she had
experience in accounting but not in human resources. It appeared
to Brown that Westrick was not interested in hiring anyone with a human resources background because he did not think that Nord/LB
needed a full-time employee dedicated to human resources issues.
Nord/LB has denied knowledge as to her experience and
characterized her allegation as surmise and conjecture.
According to Brown, she found Westrick to be dismissive of the
women in the New York branch and it appeared to her that Westrick
did not value her opinion because she was a woman. Nord/LB has
denied her allegation and characterized her allegation as surmise
According to Brown, at some point in 1994, Liesenfeld was
leaving for a business trip and Brown put out her hand to shake
hands with him to say goodbye. Instead of taking Brown's hand,
Liesenfeld tried to hug and kiss her. Brown pulled away, clearly
upset by Liesenfeld actions. Nord/LB has denied any knowledge as
to her allegation.
According to Brown, when Liesenfeld returned from his business
trip, his working relationship with her changed; prior to this
time they had had an agreeable working relationship and he had
not told Brown of any problems with her performance, but after
this incident, Liesenfeld was very critical of Brown's
performance and verbally abusive toward her. Nord/LB has denied
any knowledge as to her allegation. According to Brown, she did not complain to anyone at Nord/LB
about Liesenfeld's behavior because there was no one else in
human resources other than the two of them, and because she did
not believe Westrick would care about how Liesenfeld was treating
her. Nord/LB has characterized her allegation as surmise and
According to Brown, during her time at Nord/LB, she discussed a
promotion to assistant vice president with both Westrick and
Liesenfeld, and both of them rejected her request and treated it
as a joke. Nord/LB has denied knowledge as to her allegations.
According to Brown, she noticed that other women were rarely
promoted above the assistant vice president level at Nord/LB and
recalled that in addition to herself, Claudia Rothe, Diana
Matlosz and Andrea Johan performed well, had been with Nord/LB
for many years, and requested promotions, but Westrick refused to
promote them. Nord/LB has denied the allegations and has stated
that Brown lacked personal knowledge of the performance of the
women to whom she referred.
From October 1998 through October 2001, Elchoueri observed
Nord/LB's payroll information as part of her job. According to
Elchoueri, during that time in the departments over which
Westrick had control, including treasury, men were paid more than women who performed the same or similar jobs; Westrick had
authority to change salaries and bonuses of all employees in
Nord/LB's New York office except for those in the structured
finance group. According to Westrick, after 1996 oversight over
the treasury departments shifted to the Head Office and he had no
supervisory authority and in the structured finance group, there
were no disparities in pay between men and women who performed
the same or similar jobs.
Bier also observed that men in Nord/LB's New York office were
paid more than women with the same or similar jobs.
Rudzwick was also paid less than a male trader who was less
qualified than she was.
Westrick was reluctant to hire employees with extensive human
resources experience, and employees in Nord/LB's human resources
department often had very little training in human resources.
Hollandt, a human resources manager for the Bank, did not know
if retaliation was prohibited by Nord/LB's equal employment
opportunity policy. According to Zakre, Hollandt's deposition
indicates that she was also unaware of whether it was improper to
consider a prospective employee's age, marital status, or
national origin when making a hiring decision. Nord/LB denies this
characterization of the deposition.
According to Spinelli, Rudzwick, and Zakre, after Gajano
received the treasurer position, he treated Zakre and other women
in the treasury department worse than he treated the men.
According to Nord/LB, Gajano's conduct as a manager was
consistent with all employees.
According to Nord/LB, Zakre displayed performance problems upon
Gajano's arrival, a fact denied by Zakre, who has challenged the
Bank's characterization of nine mortgage backed transactions.
Zakre has denied the admissibility of documents, which according
to the Bank establish that she missed deadlines. According to
Nord/LB, Gajano sought to replace Zakre because of her
performance as the head of Capital Markets and interviewed
Kenneth Schmidt ("Schmidt") for the position. Zakre has denied
any failure of performance.
According to Nord/LB, Gajano informed Kosters, Westrick, and
Dr. Dunkel, who is the head of corporate banking in the Head
Office, of Zakre's performance issues within weeks after his
commencement of employment with the Bank in the fall of 2001.
According to Zakre, his testimony only related to the time he
received information and is that of an interested witness. According to Nord/LB, on January 3, 2002, Gajano sent Zakre two
memorandums which set forth in detail various performance
problems. Zakre disputes the characterization of the memorandums.
On January 7, 2002, Nord/LB received a letter from Zakre's
attorney (the "January 7, 2002 Letter") alleging that the Bank
discriminated against Zakre by not promoting her to treasurer.
Zakre maintains that she first consulted with counsel on October
24, 2001 concerning the alleged discrimination. On March 7, 2002,
Nord/LB's counsel responded, indicating that Zakre was not
promoted to the treasurer position because Nord/LB felt that
Gajano was better qualified for the position. Counsel for the
Bank indicated that while Nord/LB had no present intention of
terminating Zakre, despite her performance in the fall of 2001,
her performance was expected to improve if she was to remain
employed. Zakre contends that this letter was the first notice of
any performance issues.
In light of the January 7, 2002 Letter, Gajano decided to
retain Zakre as the head of capital Markets and create a new
position for Schmidt, who according to Zakre was less qualified.
According to Nord/LB, Zakre acknowledged at her deposition a
number of different performance problems that occurred or were
unearthed since Gajano started working as treasurer, a
characterization of her testimony Zakre denies. In 2002, the Head Office stripped the New York branch of its
authority to invest in certain financial products, for which
products Zakre was responsible. The reason for the action is
disputed. Zakre also has disputed that she failed to recognize
information critical to the features of an investment bond,
resulting in a monetary loss to the Bank.
Zakre testified by deposition concerning memoranda sent by
Gajano relating to the January 7, 2002 Letter. The
characterization of that testimony is in dispute.
In March 2002, two months after the January 7, 2002 Letter,
Zakre received a bonus in the amount of $50,000, the highest
bonus she ever received for her work as treasurer in 2001. Zakre
has continued to receive salary increases and bonuses under
Gajano's supervision and testified that she never complained that
the salary increases she received under Gajano's supervision were
unfair. Liesenfeld (who is the head of risk management),
Spinelli, and Carl Platt (former employees of the treasury
department) all complained to Westrick about Gajano's
micro-management and excessive scrutiny, and Spinelli has
complained about failure to promote and the appointment of men in
Gajano testified that he is demanding with all of his
employees. Zakre has claimed that he treated her worse than male
employees. Schmidt, who sits next to Zakre in the trading room at the Bank, testified that Gajano is a demanding supervisor. His
testimony as to the treatment of Zakre is disputed.
Zakre testified that Gajano was more aggressive and abrasive
than Bovenizer and that Gajano is a hands-on manager with
everyone, interrupts all employees with questions all of the
time, berates other employees, and places unreasonable time
demands on other employees. Zakre told her psychologist that
Gajano treats people in an aggressive manner.
Prior to receiving Nord/LB's counsel's letter, Zakre had never
been rated below "met job expectations" in any category on any
performance evaluation, but Nord/LB has alleged that in a review
in 2000, Zakre acknowledged that the Bank viewed her performance
as mediocre. Whether or not Nord/LB investigated Plaintiff's
allegation of sex discrimination is in dispute.
After Nord/LB received the January 2002 Letter, Gajano began to
increase Zakre's workload. Schmidt was hired by Nord/LB as vice
president in the treasury department in March 2002. According to
Zakre, Schmidt's experience was primarily with mortgage based
products, and he did not have extensive knowledge of other
financial products, particularly credit based products. Schmidt's
responsibilities included establishing an alternative portfolio.
Schmidt did not report to Zakre, and his profits were not
included in the capital markets group, but Gajano required Zakre to insure that Schmidt's business proposal was prepared
properly and to assist Schmidt in discussing his proposals with
Nord/LB executives in New York and Germany. According to Nord/LB,
Zakre lacks personal knowledge as to Schmidt's qualifications and
In addition, prior to complaining of sex discrimination, Zakre
had three full-time employees reporting to her and assisting her
in the capital markets group, Spinelli, Carl Platt, and Wayne
Babb. All three of these employees have left Nord/LB and none of
their positions have been filled. Zakre now has no full-time
employees reporting to her.
Gajano also required that Zakre establish repurchase lines with
investment banks. This required spending a great deal of time
with lawyers in Nord/LB's Head Office to complete the appropriate
documentation. According to Zakre, this additional work which
ordinarily would be a function of the money market desk, made it
difficult for Plaintiff to complete her ongoing capital markets
responsibilities. According to the Bank, her difficulties began
before this assignment.
According to Zakre, Gajano also subjected her work to greater
scrutiny after the Bank received the January 2002 Letter and
consistently held meetings in which he berated her and her staff. According to Nord/LB Gajano's criticism commenced before
the January 2002 Letter.
According to Zakre, Gajano also began to interfere with her
client relationships. Gajano insisted that new account officers
of his choosing be assigned to cover Nord/LB, and as a result,
productive client relationships that Zakre took years to develop
have been terminated, causing a decrease in business for the
capital markets group, an allegation denied by Nord/LB.
According to Rudzwick, Zakre, and Spinelli, Gajano was nasty
and abusive toward Zakre, and treated her worse than any other
Nord/LB employees. Gajano yelled at Zakre frequently, including
in front of employees that reported to her, made mean and
belittling comments to Zakre, and, according to Zakre and
Spinelli, did not subject any male employees to this type of
treatment. Nord/LB has denied these allegations and has noted
testimony that Gajano's treatment is consistent with all
Zakre complained to Liesenfeld verbally and in writing that
Gajano was abusive to her staff, and especially to her in
retaliation for her filing her complaint of sex discrimination.
Whether or not Nord/LB investigated Zakre's complaints of
retaliation is in dispute. According to Zakre, in June 2002, Zakre complained to
Liesenfeld about Gajano's inappropriate behavior toward her and
her staff and after this meeting, human resources sent Zakre a
memorandum stating that it would follow up on the meeting after
Liesenfeld returned from vacation, but no action was ever taken.
This allegation has been denied in part by Nord/LB stating that
Westrick spoke to Gajano and Zakre about her complaint.
After her meeting with Liesenfeld in 2002, Zakre also received
a memorandum, dated June 14, 2002 (the "Business Conduct Memo")
regarding her alleged misconduct for one use of the word
"bullshit." No one at Nord/LB discussed her conduct with her
before sending her the Business Conduct Memo.
According to Rudzwick, Gajano engaged in much worse behavior
and was never reprimanded. According to Spinelli, Gajano said
"What the fuck," on a daily basis, in front of employees, as well
as management, including Westrick and Liesenfeld, an allegation
denied by Nord/LB. Gajano also made a gesture of simulating
masturbation in front of Rudzwick and would often touch his
genitals on the trading floor, an allegation denied by Nord/LB.
Gajano, however, was never reprimanded or punished for this
Other employees also routinely cursed on the trading floor, and
were never reprimanded, but Nord/LB has noted the use of profanity was common on the trading floor. No one else at Nord/LB
was ever given a letter reprimanding them for their business
conduct. Moreover, the Business Conduct Memo alleged that Zakre
yelled at Schmidt inappropriately. Schmidt, however, never
complained about any behavior by Zakre.
The Business Conduct Memo was sent from Hollandt, but Hollandt
did not write it. Upon her return from vacation, Hollandt was
instructed by Westrick to sign the Business Conduct Memo and give
it to Zakre.
In another incident, Zakre requested that Nord/LB verify her
employment so that she could obtain a mortgage in 2003. Similar
requests have been made by other Nord/LB employees. After her
request, Zakre received a memorandum stating that although
Nord/LB had supplied the requested information, that did not
"prejudice Nord/LB's ability to terminate [Zakre's] employment in
the future if it deems such action necessary due to a
reorganization at Nord/LB or for any other reason." (Clark Aff.,
Ex. 10). Nord/LB has never sent a similar memorandum to any other
Zakre was also initially excluded from a meeting that Westrick
organized with Nord/LB's new chairman in 2004. According to
Zakre, only after she noted that she was the only vice president excluded from the meeting was she invited; according to Nord/LB,
Gajano added her name to the list.
According to Zakre, Gajano has taken steps to reduce the size
of Zakre's portfolio and encouraged the growth of Schmidt's
business at the expense of Zakre's business by assigning a
portion of the credit limits previously assigned to capital
markets to Schmidt's group. Nord/LB has denied the allegation
stating that Zakre lacks personal knowledge of Gajano's motives
and Schmidt's actions.
Nord/LB has also recently instructed Zakre to sell her entire
portfolio of CDOs which will reduce Zakre's responsibilities and
reduce the income that she generates for Nord/LB. Gajano did not
tell Zakre about the decision to sell the entire portfolio of
CDOs until after he discussed the decision with Schmidt and
Robert Fakhoury ("Fakhoury"), neither of whom had any
responsibility for that portfolio.
According to Zakre, Gajano typically interacted with her as
little as possible, constantly asked someone else, often his
secretary, to communicate with her on his behalf, and when he did
talk directly to Zakre, he does not look at her and does not
treat other employees this way. Nord/LB has denied this
allegation noting that Zakre has stated Gajano is abusive with
all employees. On February 11, 2005, Zakre received a memorandum from Stephen
Hunter ("Hunter"), a senior vice president and deputy branch
manager at Nord/LB, concerning an alleged outburst by Zakre and
criticizing her for allegedly saying she was going to contact her
lawyer. Whether Zakre did or did not have an outburst, and
threatened to call her lawyer is in dispute.
The conversation referenced in the memorandum from Hollandt and
about which Gajano had complained, was one in which Gajano told
Zakre that Nord/LB had promoted Fakhoury to deputy treasurer,
which would require Fakhoury to fill in for Gajano when Gajano
was unavailable. Zakre had been performing those responsibilities
since 1994. According to Nord/LB, Gajano replaced Zakre because
of her performance.
According to Zakre, despite the obstacles that Gajano created
for her, the capital markets group was very profitable in 2004,
making over ten million dollars for Nord/LB without any full-time
employees in capital markets for the last half of 2004, and the
assistance of only one intern; in contrast, the alternative
portfolio made less than five million dollars with the assistance
of one full-time employee and the money market group made less
than ten million dollars with the assistance of two full-time
employees. Nord/LB has denied these allegations stating that
Zakre lacks personal knowledge of Schmidt's performance. Despite Zakre's performance, on February 18, 2005, Gajano
informed Zakre that the Bank had hired Kevin Berger ("Berger") as
head of debt capital markets, and that beginning March 14, 2005,
Zakre would be reporting to Berger, who would report to Gajano.
Nord/LB has denied the scope of Berger's appointment and has
stated that Zakre remained head of capital markets.
Zakre has complained that her deputy responsibilities were
taken away from her and that she was demoted in retaliation for
filing her complaint of sex discrimination. Whether Nord/LB had
investigated her claims of retaliation is in dispute.
In Nord/LB's New York office, Westrick, as the executive vice
president, is the highest ranking employee. There are four senior
vice presidents, none of whom are women. There are seven
department heads in Nord/LB's New York office, none of whom
currently are women.
The Motion To Strike Is Denied
Nord/LB has moved to strike some or all of the affirmations of
Zakre, Elchoueri, Brown, Rudzwick, and Spinelli (the
"Affirmations") as violative of the requirements of
Fed.R.Civ.P. 56(e). However, the Affirmations are all based on personal
knowledge and therefore are admissible. See Shannon v. New
York City Transit Authority, 189 F. Supp. 2d 55, 66-67 (S.D.N.Y.
2002) (denying motion to strike affidavit based on personal knowledge).
"The test for admissibility is whether a reasonable trier of fact
could believe the witness had personal knowledge." Searles v.
First Fortis Life Ins. Co., 98 F. Supp. 2d 456, 461 (S.D.N.Y.
2000). An affiant may testify to conclusions based on her
personal observations over time. Id. Similarly, witnesses may
testify to and summarize their impressions. See Kehoe v.
Anheuser-Busch, Inc., 995 F.2d 117, 119 n. 3 (8th Cir. 1993);
Griswold v. Fresenius USA, Inc., 978 F. Supp. 718, 722 (N.D.
Ohio 1997); see also Lightfoot v. Union Carbide Corp.,
110 F.3d 898, 911 (2d Cir. 1997) (affirming admission of testimony
that witness believed that plaintiff was dismissed because of his
age). An affiant may also testify as to the contents of records
that she reviewed in her official capacity. Searles,
98 F. Supp. 2d at 461.
The lack of certain specific details or arguably vague
statements will not render the affidavit inadmissible, but affect
the weight and credibility of the testimony, which have to be
determined by the trier of fact at trial. See King v. Auto,
Truck, Indust. Parts and Supply, Inc., 21 F. Supp. 2d 1370, 1375
(N.D. Fla. 1998); Crosfield Hastech, Inc. v. Harris Corp.,
672 F. Supp. 580, 590 (D.N.H. 1987).
The cases cited by the Bank in which affidavits, or portions
thereof, were stricken or not admitted involved affiants who had no personal knowledge of the facts testified to or whom
made conclusory statements.
As to Zakre's affirmation, Nord/LB has contended that her
affirmation and deposition testimony are inconsistent. However,
such inconsistency, if it exists, may affect her credibility, but
it does not bar its admission.
Similarly, lack of supporting evidence does not affect
admissibility. Zakre is competent to testify that Westrick
avoided her and sought out a man's opinion rather than talk to
her. See Kehoe, 995 F.2d at 119 n. 3 (allowing affiant to
testify that his supervisor treated him "with disdain"); State
of New York v. Saint Francis Hosp., 94 F. Supp. 2d 423, 427
(S.D.N.Y. 2000) (affiant may testify as to his perception of how
Nord/LB has characterized Zakre's testimony as based on
"surmise and conjecture" with respect to the client contacts. She
has provided specific examples of clients she brought to Nord/LB
and her summary of her experience is admissible.
As to Westrick's supervision of the treasury department, a
reasonable jury could determine that Zakre had personal knowledge of whom her supervisor reported to and could conclude that as a
senior member of the treasury department, she had personal
knowledge concerning who was involved with salary and personnel
decisions for the treasury department.
Zakre has worked for Gajano for over three and one-half years.
It would be reasonable for a jury to conclude that her testimony
is based on her personal knowledge of Gajano's skills. It would
be reasonable for a jury to find also that Zakre, as a senior
member of the treasury department who was acting treasurer prior
to Gajano's hiring, was aware of his performance issues even
though she was not his direct supervisor. See Shannon,
189 F. Supp. 2d at 66-67.
Nord/LB has challenged Zakre's testimony concerning knowledge
of certain financial products because she did not supervise
Schmidt. There is no requirement that only a supervisor can
testify as to qualification and knowledge of a fellow employee.
Zakre's deposition testimony does not state that anyone told
her there were performance issues in 1999 or that her job was in
jeopardy. Therefore, Nord/LB's claim that there is an
inconsistency between her deposition testimony and her
affirmation should be dismissed. As to Bier's affirmation, Nord/LB has moved to strike on
grounds of lack of specificity and detail. However, it is
appropriate for Bier to testify to information she learned from
reviewing records as part of her job function. See Searles,
98 F. Supp. 2d at 461 ("An affiant may testify as to the contents
of records she reviewed in her official capacity."); St. Francis
Hosp., 94 F. Supp. 2d at 426 (same). As to job performance, a
reasonable jury may find that Bier's testimony is based on her
personal knowledge gained over three years at the Bank, and
therefore, there is no reason to strike this portion of her
affirmation. See Shannon, 189 F. Supp. 2d at 66-67;
Searles, 98 F. Supp. 2d at 461.
As to Elchoueri's affirmation, statements she heard Westrick
make are admissible. The context in which they were made may be
pursued at trial. Testimony based on her personal knowledge is
admissible whether concerning qualifications or salary or
statements made to her or in her presence.
Similar objections to the affirmations of Brown, Rudzwick,
Srebnik, and Spinelli are equally unavailing.
Nord/LB has contended that certain paragraphs in Zakre's 56.1
Statement should be stricken because they do not specifically
cite to admissible evidence. (Def. Mem. at 20). Where Zakre has
not cited to admissible evidence, the statement contains a legal conclusion, or the jury would be entitled to disbelieve
Defendant's evidence. In paragraph 17 for example, Zakre admitted
the Bank's factual assertion that when Bovenizer replaced Zakre
as treasurer, the Bank did not change Zakre's vice president
title or decrease her salary, but appropriately denied Nord/LB's
legal conclusion that its action was "significant."
In paragraph 32, Nord/LB asserted that Kosters was unimpressed
with Zakre and therefore instructed Westrick to contact an
executive search firm concerning a new treasurer and in paragraph
67, Zakre responded that the citation to Gajano's deposition
referred to by Defendant did not support the factual assertion
made by the Bank. Zakre's responses are appropriate because where
the record does not support assertions made in a defendant's Rule
56.1 Statement, the unsupported assertions must be disregarded.
See Giannullo v. City of New York, 322 F.3d 139, 140, 142-43
(2d Cir. 2003).
In paragraph 34, Nord/LB relying on Kosters' deposition,
asserted that Kosters told Westrick that he was looking for an
individual who could elevate the treasury department to new
levels. Zakre responded that a jury would not be required to
believe the testimony of Kosters because he is an interested
witness. See Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 151 (2000). For the same reason, Zakre also stated that
a jury would not be required to believe Kosters' testimony
concerning why he choose to hire Gajano (paragraph 48) and why he choose not to
hire Plaintiff (paragraph 53). In paragraph 36, Zakre
appropriately responded that a jury would not be required to
believe Westrick's testimony concerning his instructions to the
search firm used to fill the treasurer position because Westrick
is also an interested witness.
As a general matter, Nord/LB/s objections to Zakre's evidence
goes to weight and credibility, not admissibility. The motion to
strike is therefore denied.
The Summary Judgment Standard
Pursuant to Rule 56, summary judgment may be granted only if
there is no genuine issue of material fact and the moving party
is entitled to judgment as a matter of law. See Fed.R.Civ.P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322-23,
91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); SCS Communications, Inc. v.
Herrick Co., Inc., 360 F.3d 329, 338 (2d Cir. 2004). The court
will not try issues of fact on a motion for summary judgment, but
rather, will determine "whether the evidence presents a
sufficient disagreement to require submission to a jury or
whether it is so one-sided that one party must prevail as a
matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
251-52, 91 L. Ed. 2d 202, 106 S.Ct. 2505 (1986). Summary judgment is appropriate where the moving party has
shown that "little or no evidence may be found in support of the
nonmoving party's case. When no rational jury could find in favor
of the nonmoving party because the evidence to support its case
is so slight, there is no genuine issue of material fact and a
grant of summary judgment is proper." Gallo v. Prudential
Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223-24 (2d Cir.
1994) (internal citations omitted). If, however, "`as to the
issue on which summary judgment is sought, there is any evidence
in the record from which a reasonable inference could be drawn in
favor of the opposing party, summary judgment is improper.'"
Security Ins. Co. of Hartford v. Old Dominion Freight Line
Inc., 391 F.3d 77, 83 (2d Cir. 2004) (quoting Gummo v. Village
of Depew, 75 F.3d 98, 107 (2d Cir. 1996)).
The moving party has the burden of showing that there are no
material facts in dispute, and the court must resolve all
ambiguities and draw all reasonable inferences in favor of the
party opposing the motion. Bickhardt v. Ratner,
871 F. Supp. 613 (S.D.N.Y. 1994) (citing Celotex Corp. v. Catrett,
477 U.S. 317, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986)). Thus, "summary
judgment may be granted if, upon reviewing the evidence in the
light most favorable to the non-movant, the court determines that
there is no genuine issue of material fact and the movant is
entitled to judgment as a matter of law." Richardson v. Selsky,
5 F.3d 616, 621 (2d Cir. 1993). A material fact is one that would "affect the outcome of the
suit under the governing law," and a dispute about a genuine
issue of material fact occurs if the evidence is such that "a
reasonable jury could return a verdict for the nonmoving party."
Anderson, 477 U.S. at 248; R.B. Ventures, Ltd. v. Shane,
112 F.3d 54, 57 (2d Cir. 1997).
"The salutary purposes of summary judgment avoiding
protracted, expensive and harassing trials apply no less to
discrimination cases than to commercial or other areas of
litigation." Nicastro v. Runyon, 60 F. Supp. 2d 181, 183
(S.D.N.Y. 1999) (citing Dister v. Continental Group, Inc.,
859 F.2d 1108, 1114 (2d Cir. 1988)). Greater caution must be
exercised, however, in granting summary judgment in employment
discrimination cases where the employer's intent is genuinely in
issue. Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999).
This is so because "employers are rarely so cooperative as to
include a notation in the personnel file that the [action
complained of] is for a reason expressly forbidden by law."
Bickerstaff v. Vassar College, 196 F.3d 435, 448 (internal
quotation marks and citation omitted; brackets in the original).
But even where an employer's intent is at issue, "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); Meiri v. Dacon,
759 F.2d 989, 998 (2d Cir. 1985). There Are Disputed Facts Relating To The Denial Of Promotion
Under the framework set forth by the Supreme Court in
McDonnell Douglas Corp. v. Green, 411 U.S. 792,
36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973), a plaintiff asserting a claim of
discrimination must first establish a prima facie case. To
establish a prima facie case, a plaintiff must point to
record evidence showing that: (1) she is a member of a protected
class; (2) she applied for and was qualified for a job for which
the employer was seeking applicants; (3) despite her
qualifications, she was rejected; and (4) her rejection occurred
in circumstances giving rise to an inference of discrimination on
the basis of her membership in that protected class. McDonnell
Douglas, 411 U.S. at 802; Rosen v. Thornburgh, 928 F.2d 528,
531 (2d Cir. 1991); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.
1985), cert. denied, 474 U.S. 829, 88 L. Ed. 2d 74 (1985).
If that prima facie case is established, the burden of
production, but not persuasion, shifts to the employer to set
forth a legitimate non-discriminatory reason for the
non-selection. St. Mary's Honor Society v. Hicks, 509 U.S. 502,
509, 125 L. Ed. 2d 407, 113 S.Ct. 2742 (1993). Once the employer
has met its burden of showing a legitimate, non-discriminatory
reason for the employment action, the employee must then show
that the reason advanced is pretextual i.e., that it masks
the employer's true discriminatory reason for its actions. See
Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 254-56,
67 L. Ed. 2d 207, 101 S.Ct. 1089 (1981).
The "showing the plaintiff must make as to the elements of the
prima facie case in order to defeat a motion for summary
judgment is de minimis." Sutera v. Schering Corp.,
73 F.3d 13, 16 (2d Cir. 1995) (internal quotation and citation omitted).
Defendant challenges only one aspect of Plaintiff's prima
facie case, arguing that she cannot show she was qualified for
the position of treasurer. (Def. Br. 11).
To meet the qualification prong of a prima facie case of
failure to promote, Zakre need only demonstrate that she
possessed the abilities, education, training, or experience
necessary to perform the job. See, e.g., De la Cruz v. New
York City Human Res. Admin., 82 F.3d 16, 20 (2d Cir. 1996).
Beyond Zakre's experience and qualifications acknowledged by her
colleagues (Pl. 56.1 ¶¶ 6-7, 89-91, 132), Zakre held the position
of treasurer prior to Westrick's arrival at the Bank and was
acting treasurer while the Bank sought Bovenizer's replacement.
(Pl. 56.1 ¶¶ 90-91, 109-12). These facts establish that she met
the basic qualifications for the job.
While the record thus far does not establish a discriminatory
motive on Kosters' decision not to promote Zakre, it is her position that Westrick was the decision-maker and that the
record establishes a factual issue as to his discriminatory
According to Zakre, Kosters told Spinelli that it was not he,
Kosters, who made the decision to hire Gajano, but Westrick (Pl.
56.1 ¶ 139) and there is evidence that after Kosters told Zakre
that she would be considered for the treasurer position, he asked
Westrick to narrow the candidates down to three, (Pl. 56.1 ¶ 39)
that Westrick selected the three candidates for Kosters to
consider in a memorandum that catalogs several factors upon which
it would be illegal to make the selection. (Pl. 56.1 ¶ 40). After
Westrick learned that Gajano had been abusive to Srebnik at
Napoli, Westrick told Elchoueri that he was recommending that
Kosters select Gajano.
Where successive evaluators consider and rely on the report or
recommendation of prior biased evaluators, the fact-finder may
infer that discrimination has infected the entire process. Price
Waterhouse v. Hopkins, 490 U.S. 228, 256 (1989); Feingold v.
New York, 366 F.3d 138, 146-47 (2d Cir. 2004); Ostrowski v.
Atl. Mut. Ins. Cos., 968 F.2d 171, 183-84 (2d Cir. 1992);
Barbano v. Madison County, 922 F.2d 139, 144 (2d Cir. 1990);
Lam v. University of Hawaii, 40 F.3d 1551, 1560-61 (9th Cir.
1994); Roebuck v. Drexel Univ., 852 F.2d 715, 727 (3d Cir.
1988). According to Zakre, Westrick on several occasions made comments
evidencing bias against women. Given that these comments were
made by a key employee involved in the promotion decision, they
cannot be dismissed as mere "stray remarks." See Danzer v.
Norden Sys., Inc., 151 F.3d 50, 56 (2d Cir. 1998). Moreover,
recent Supreme Court decisions and circuit court decisions have
recognized that most comments potentially reflecting bias have
evidentiary value. See Reeves, 530 U.S. at 152; Evans v.
City of Bishop, 238 F.3d 586, 591 (5th Cir. 2000) (per curium)
("Reeves emphatically states that requiring evidence of
discriminatory animus to be `in the direct context' of the
employment decision is incorrect."); accord Russell v.
McKinney Hosp. Venture, 235 F.3d 219, 229 (5th Cir. 2000) ("In
light of the Supreme Court's admonition in Reeves, our
pre-Reeves jurisprudence regarding so-called `stray remarks'
must be viewed cautiously."). Courts have held that although such
comments may not be dispositive, they are still relevant and
probative. See, e.g., Sheehan v. Donlen Corp.,
173 F.3d 1039, 1044 (7th Cir. 1999) (recognizing that comments
stereotyping pregnant women had probative value even where they
did not rebut proffered reason of poor interpersonal skills).
Women who worked at Nord/LB also testified that Westrick was
responsible for women being paid less than comparable men and for
excluding them from meetings, reacted negatively to assertive
women, and otherwise ignored women, preferring to speak to male
employees about any issues that arose. A jury could find that the exclusionary culture fostered by Westrick evidenced a biased
attitude toward women. See Doria v. Cramer Rosenthal Mc-Gylnn,
Inc., 942 F. Supp. 937, 946 (S.D.N.Y. 1996).
Nord/LB's selection of Gajano after Srebnik notified it that
Gajano had treated her abusively and discriminated against her at
Banco di Napoli also can constitute an inference of bias against
women. Kosters acknowledged that Srebnik made her complaints
before a decision was made to hire Gajano, but testified that the
information supplied by Srebnik was no reason not to hire Gajano.
(Pl. 56.1 ¶¶ 134-36). Elchoueri, who worked closely with
Westrick, was sure that Westrick would select Gajano because of
Srebnik's complaint, a statement with which Liesenfeld, an
officer of the Bank, and Hollandt tacitly agreed. (Pl. 56.1 ¶
137). See Penguin Books U.S.A., Inc. v. New Christian Church
of Full Endeavor, Ltd., 262 F. Supp. 2d 251, 259-60 (S.D.N.Y.
2003) (silence may constitute admission and any ambiguities are
for the jury to decide).
Once a plaintiff has shown disputed facts as to the prima
facie case, "the employer must come forward with admissible
evidence of legitimate nondiscriminatory reasons for its adverse
actions." Mandell, 316 F.3d at 380. Once the defendant produces
evidence of a legitimate nondiscriminatory reason, "the
presumption raised by the prima facie case is rebutted, and drops
from the case." Hicks, 509 U.S. at 511. At that point, the
governing standard is simply whether the evidence, taken as a
whole, is sufficient to support a reasonable inference that prohibited
discrimination occurred." James v. New York Racing Ass'n.,
233 F.3d 149, 156 (2d Cir. 2000). Here, Zakre has shown that a
reasonable jury could find that the defendants' proffered reasons
are a pretext for discrimination.
Evidence has been presented that those who worked closely with
Zakre considered her to be well qualified to succeed Bovenizer,
that Bovenizer told Zakre that he was recommending to Kosters
that she become treasurer and that Kosters told Zakre that she
would be considered for the position. According to Zakre, when
Gajano was selected, Kosters first told Zakre the reason was that
Gajano had more trading experience; when Zakre said that was not
true, Kosters then said it was because Gajano had more client
contact, which was also false. At their depositions, Kosters and
Westrick provided yet other explanations. These contradictions,
without more, would permit a finding that Zakre has established
pretext. See Reeves, 530 U.S. at 147; E.E.O.C. v. Ethan
Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994).
A plaintiff can establish that the adverse action occurred in
circumstances suggesting bias by showing that she was not
considered for a job for which she arguably was qualified. See
Stratton v. Dep't for the Aging, 132 F.3d 869, 880 (2d Cir.
1997); Greene v. Coach, Inc., 218 F. Supp. 2d 404, 411
(S.D.N.Y. 2002). Here, Zakre has asserted that Bovenizer, who
supervised Zakre, told her that he was recommending that she replace him, and Rudzwick
and Spinelli both testified that Zakre was fully qualified to be
treasurer. Before Westrick arrived and demoted Zakre, she was
treasurer, and she was appointed acting treasurer after Bovenizer
There is an issue of fact as to whether or not Zakre had
stronger qualifications for the treasurer position than did
Gajano. The Second Circuit has found in cases such as this that
"an employer's disregard or misjudgment of a plaintiff's job
qualifications may undermine the credibility of an employer's
stated justification for an employment decision," suggesting
pretext. Byrnie, 243 F.3d at 103; Shannon v. Fireman's Fund
Ins. Co., 165 F. Supp. 2d 279, 290 (S.D.N.Y. 2001).*fn2
Sufficient factual issues have been presented concerning
Zakre's denial of promotion claim to defeat summary judgment.
There Are Disputed Facts Relating To The Claims Of
Retaliation In contending that Zakre did not experience any adverse
employment action for the purposes of her retaliation claim (Def.
Br. 21-22), Nord/LB failed to note that Zakre was replaced as
deputy treasurer, that she contends that her role as head of
capital markets has been diminished, and that she has been moved
down the corporate hierarchy. A demotion is an adverse employment
action. Mandell, 316 F.3d at 383.
Zakre also has pointed out that in determining whether she has
suffered an adverse employment action, all of the actions taken
against her must be considered, see Timothy v. Our Lady of
Mercy Med. Ctr., No. 03 Civ. 3556 (RCC), 2004 WL 503760, at *6-7
(S.D.N.Y. March 12, 2004) (and cases cited), keeping in mind
that, "[t]he phrase terms, conditions, or privileges of
employment evinces a congressional intent to strike at the entire
spectrum of disparate treatment . . . in employment." Meritor
Sav. Bank, FSB v. Vinson, 477 U.S. 57, 64 (1986) (citations
omitted); see Burlington Indus. v. Ellerth, 524 U.S. 742, 759
(1998) ("a tangible employment action constitutes a significant
change in employment status, such as . . . reassignment with
significantly different responsibilities. . . .") (citing Crady
v. Liberty Natl. Bank & Trust Co. of Ind., 903 F.2d 132, 136
(7th Cir. 1993) (material change includes "a less distinguished
title . . . significantly diminished material responsibilities,
or other indices that might be unique to a particular
situation."). The Second Circuit reaffirmed this standard in Richardson v. New York State Dep't
of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999):
Title VII does not define adverse employment action
solely in terms of job termination or reduced wages
and benefits, and . . . less flagrant reprisals by
employers may indeed be adverse. . . . [B]ecause
there are no bright-line rules, courts must pore over
each case to determine whether the challenged
employment action reaches the level of adverse.
(internal quotations and citations omitted); see also
Treglia v. Town of Manlius, 313 F.3d 713
, 720 (2d Cir. 2002)
(actions are adverse when they constitute a "materially adverse
change in the terms, privileges, duration [or] conditions of
Certain of the specific actions that Zakre maintains have been
taken against her have been held to constitute adverse employment
actions. See Feingold, 366 F.3d at 152-53 (disproportionately
heavy workload is adverse employment action); Preda v. Nissho
Iwai American Corp., 128 F.3d 789, 791 (2d Cir. 1997) (exclusion
from departmental meetings evidence of adverse employment
action); Dominic v. Consol. Edison Co., 822 F.2d 1249, 1254-55
(2d Cir. 1987) ("bringing [plaintiff] within [supervisor's]
direct and heavy-handed supervision and then subjecting him to
unreasonable working conditions"); AB ex rel. CD v. Rhinebeck
Cent. Sch. Dist., 224 F.R.D. 144, 154 (S.D.N.Y. 2004) (threats
of unjustified discipline); Chavez v. Metropolitan Dist.
Comm'n, No. 3:02 Civ. 458 (MRK), 2004 WL 1393616, at *4 (D.
Conn. June 1, 2004) (reassignment of plaintiff's job duties to other employees,
overriding his decisions, and exclusion of plaintiff from
meetings); Dortz v. City of New York, 904 F. Supp. 127, 156
(S.D.N.Y. 1995) (isolation of plaintiff by refusing to
communicate with her, excluding her from meetings, and assigning
work to her staff without informing her); see also Luciano,
110 F.3d at 215 (evidence of discrimination that plaintiff was
intentionally given an impossible workload without the
commensurate support staff).
Zakre has claimed that a hostile work environment existed at
Nord/LB either because of Plaintiff's gender or because of her
complaints of sex discrimination, or a combination of the two.
See Terry v. Ashcroft, 336 F.3d 128, 148-50 (2d Cir. 2003);
Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001); Noviello
v. City of Boston, 398 F.3d 76, 89-90 (1st Cir. 2005)
There is no "magic number" of incidents a plaintiff must allege
in order to state a claim. Richardson, 180 F.3d at 439. "[T]he
test is whether the harassment is of such quality or quantity
that a reasonable employee would find the conditions of her
employment altered for the worse." Feingold, 366 F.3d at 150
(internal quotation marks and citations omitted). Zakre and other
witnesses testified that since Gajano was hired, and even more so
after she complained of discrimination, Gajano was frequently
nasty and abusive to her; increased her work load while
decreasing her staff; often demeaned her in front of colleagues
and subordinates; made unjustified criticism of her and sought to blame her for
matters not her fault; took away responsibilities; and demoted
her, first by removing her as deputy treasurer and then by hiring
a man to head capital markets and requiring Plaintiff to report
to him. In addition, Nord/LB has taken disciplinary action
against Zakre, issuing her baseless warning memoranda and making
other threats to terminate her employment. Based upon this
evidence, a reasonable jury could find that this conduct has
altered her work environment for the worse.
To establish her claim, Zakre need not prove any sexually based
conduct; rather the issue is "whether members of one sex are
exposed to disadvantageous terms or conditions of employment to
which members of the other sex are not exposed." Oncale v.
Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)
(citations omitted). This, the contention that Gajano was more
abusive to women than to men (Pl. 56.1 ¶¶ 219, 229) may be enough
to meet this element. See Kopp v. Samaritan Health Sys.,
Inc., 13 F.3d 264, 269-70 (8th Cir. 1994); see also Brown,
257 F.3d at 252-54.
In addition, allegations of Gajano's bias against women,
including his similar treatment of Srebnik at Banco di Napoli,
his assumptions that Srebnik would not return from maternity
leave, and his statements that he would not hire a woman to
replace Srebnik, present issues of fact as to whether Gajano's
treatment of Zakre was motivated by her gender. The allegation
that Nord/LB has disciplined Zakre for conduct for which no men are disciplined,
while refusing to discipline Gajano for far worse conduct, are
also issues of fact relating to bias. See Feingold,
366 F.3d at 153.
According to Zakre, Gajano's abusive conduct toward her
intensified after she complained of discrimination, to the point
that he treated her, and to some extent the women on her staff
viewed as loyal to her, far worse than any other employee.
According to Zakre, her complaints of discrimination and
retaliation were met with hostility and indifference, as to which
factual disputes exist. Nord/LB has admitted that it handled
Zakre's request for information for a mortgage differently from
requests from any other employee. When Zakre complained that her
removal as deputy treasurer was retaliatory, she was given a
memorandum for having done so, that specifically chastises her
for saying she was going to call her attorney; while Zakre has
denied making the statement. Kosters rebuked Spinelli for
complaining about Gajano, and Gajano criticized Srebnik for
complaining about him.
There are sufficient facts at issue to deny Nord/LB's motion
for summary judgment dismissing the discrimination and
retaliation claims. Cf. Terry, 336 F.3d at 150
(discriminatory attitudes could have exacerbated the effects of
retaliation-based hostility and vice versa). The burden of proof is on Nord/LB to establish both prongs of
an affirmative defense, that is, to show that "it exercised
reasonable care to prevent and correct promptly any" harassing
behavior, and that plaintiff "unreasonably failed to take
advantage of any preventative or corrective opportunities
provided by the employer or to avoid harm otherwise." Ellerth,
524 U.S. at 765; Faragher, 524 U.S. at 807 ("The defense
comprises two necessary elements"). Zakre has complained that she
has been mistreated because of her gender and because of her
complaints of discrimination. Nord/LB has failed to establish
that no issue of fact exists as to whether or not Nord/LB has
investigated any of her complaints or taken any steps to correct
and prevent the hostile working conditions.
For the foregoing reasons, Defendant's motion for summary
judgment is denied.
The motions of Nord/LB to dismiss the complaint and to strike
It is so ordered.
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