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Esposito v. Deutsche Bank AG

December 15, 2008


The opinion of the court was delivered by: Richard J. Sullivan, District Judge


Plaintiff Gina Esposito brings this employment discrimination suit against Defendant Deutsche Bank AG ("DB") for alleged violations under the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq.; the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code § 8-101 et seq.

Specifically, Plaintiff alleges that, over the course of her employment at DB, her supervisor created a hostile work environment, discriminated against her because of her age, and retaliated against her because she had raised certain concerns regarding another employee with DB's Human Resources ("HR") Department. Plaintiff seeks compensatory and punitive damages, attorney's fees, placement in the same position she would have been in absent DB's discrimination, and injunctive relief prohibiting DB from acting in a discriminatory manner towards other employees.

Before the Court is DB's motion, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss as time-barred Plaintiff's state law claims as well as her ADEA and Title VII claims relating to her 2000 bonus, her 2001 salary, and DB's alleged failure to promote.*fn1 (DB Reply at 1.) Also before the Court is Plaintiff's motion to amend her Complaint.

For the reasons set forth below, DB's motion to dismiss is denied, and Plaintiff's motion to amend is granted.


A. Facts*fn2

Plaintiff Gina Esposito was hired as an Assistant Vice President in the International Services Department of DB in June of 1999. (AC ¶¶ 31-32.) At the time of her hiring, Plaintiff was 44 years old. (Id. ¶ 20.) Almost immediately upon the commencement of her employment, Plaintiff's supervisor, John Dall ("Dall"), began a campaign to discourage Plaintiff from remaining in her position in his department. (Id. ¶ 4.) Dall verbally abused Plaintiff, at times reprimanding her in front of other employees and questioning the decisions she made. (Id. ¶ 36.)

Dall also made comments that reflected a bias against older employees. (Id. ¶¶ 37-40.) Specifically, at the time of the departure of a DB employee in her 50s, Dall made comments to the effect that the departure redounded to the benefit of DB, as the employee was "older" and "resistant to change." (Id. ¶ 38.) Dall also informed Plaintiff that she was "resistant to change," a phrase Plaintiff interpreted as a euphemism for "too old." (Id. ¶¶ 39-40.)

At the same time, Dall attempted to "turn his department into one comprised of a young team." (Id. ¶ 41.) Dall hired two younger employees, Joanne Passiatore ("Passiatore") and Dan Richards ("Richards"), both under the age of 35, into the department as Assistant Vice Presidents, the same position held by Plaintiff, despite the fact that Plaintiff had more experience and greater responsibilities. (Id. ¶¶ 42, 47-52, 58-59.) Plaintiff herself was the only management-level employee in the department over 40 years of age. (Id. ¶ 45.) Further, Dall invited Plaintiff's younger colleagues to socialize outside of the workplace, but never invited Plaintiff. (Id. ¶ 44.)

In August of 2000, Plaintiff approached Dall and apprised him of her belief that one of her staff members was harassing other employees. (Id. ¶ 60.) When Dall failed to offer assistance, Plaintiff sought guidance from a member of DB's HR Department, Leslie Garfield ("Garfield"). (Id. ¶¶ 61-62.) Upon learning of Plaintiff's discussion with HR, Dall cautioned Plaintiff never to mention the harassment again. (Id. ¶ 63.) In November of that same year, Plaintiff again raised with Garfield the issue of possible harassment by one of her staff members, as well as Dall's "constant berating" of Plaintiff over the issue and her fears that Dall would retaliate against her as a result of her discussions with HR. (Id. ¶ 64.) When Dall discovered that Plaintiff had spoken with Garfield a second time, he confronted Plaintiff in a manner that she found physically threatening. (Id. ¶ 65.) After this confrontation, Plaintiff's work environment worsened as Dall retaliated against her for her discussions with HR. (Id. ¶ 66.)

In January of 2001, Plaintiff received a bonus of $30,000 and a salary increase of $3,000. (Id. ¶ ¶ 70, 71.) In April of 2001, Plaintiff met with Dall to discuss promotions within the department. (Id. ¶ 75.) At that time, Dall made no mention of the promotions of Passiatore or Richards, but, based on Dall's comments, Plaintiff understood that younger workers were more favorably viewed. (Id. ¶ 75-76.) In response to Plaintiff's inquiries regarding the possibility of promotion, Dall "confirmed [Plaintiff's] belief that she would never be given any opportunity for advancement" at DB. (Id. ¶ 78 (emphasis in original).)

On April 16, 2001, Plaintiff received an email invitation for a gathering celebrating the promotion of female employees of DB, including Passiatore. (Id. ¶ 81.) On April 18, 2001, Plaintiff "noticed" that both Passiatore and Richards had been promoted. (Id. ¶ 82.) Plaintiff assumed that, as a result of the promotions, Passiatore and Richards had received bonuses and raises larger than her own - an assumption that proved to be accurate. (Id. ¶ 83.) Thus, though HR mandated 4%-6% salary increases for all HR employees, Plaintiff received a salary increase of only $3,000, or 3.75%, while Passiatore and Richards each received increases of $20,000. (Id. ¶¶ 71, 73.) Similarly, whereas Plaintiff received a bonus of $30,000, Passiatore and Richards received bonuses of $55,000. (Id. ¶ 70.)

Despite the differences in compensation, all three continued to perform the same duties as before. (Id. ¶ 74.) Thus, though Plaintiff had more experience and greater responsibility than her younger co-workers, Passiatore and Richards were more highly compensated. (Id. ¶¶ 42, 47-52, 58-59, 74.) As a result of Dall's behavior and her realization that she had no future at DB, Plaintiff resigned from DB effective May 3, 2001. (Id. ¶ 85.)

On February 8, 2002, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). (Id. ¶ 88.) On April 30, 2007, the EEOC issued to Plaintiff a Notice of Right to Sue. (Id. ¶ 89.) The instant suit followed.

B. Procedural History

Plaintiff filed her complaint on July 26, 2007, alleging age discrimination under ADEA, NYSHRL, and NYCHRL; failure to promote in violation of ADEA, NYSHRL, and NYCHRL; a hostile work environment, in violation of ADEA, Title VII, NYSHRL, and NYCHRL; and retaliation for reporting a potentially unlawful employment practice, ...

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