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Lu v. Chase Investment Services

December 9, 2009

HONGYAN LU, PLAINTIFF,
v.
CHASE INVESTMENT SERVICES, CORP., INDIVIDUALLY AND D/B/A JP MORGAN CHASE. DEFENDANT.



The opinion of the court was delivered by: Block, Senior District Judge

MEMORANDUM AND ORDER

Plaintiff Hongyan "Valerie" Lu ("Lu") brings a gender and ethnicity discrimination action against Chase Investment Services Corporation ("CISC"), alleging disparate treatment, hostile work environment, and wrongful termination in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 1981, the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). Lu additionally brings a claim for back pay under New York Labor Law § 198. CISC moves for summary judgment with regard to all claims. For the reasons that follow, the motion is granted as to all of Lu's federal and state discrimination claims, and the Court declines to exercise supplemental jurisdiction over Lu's claim for back pay.

FACTUAL OVERVIEW

Lu is a Chinese-American woman, born in Beijing, China, who worked as a financial advisor ("FA") for CISC at 39-01 Main Street, Flushing, New York (the "Branch") from 1994 to 2006, when she was terminated.*fn1 Lu's qualifications are not in dispute.

In 2002, Lu was informed that CISC would be adding a Korean-speaking FA to the Branch to service its Korean-speaking clientele. CISC hired Daniel Kim ("Kim"), an Asian-American man of Korean descent. Kim was assigned to a different CISC branch, but worked two days per week in the Branch. Lu complained about the addition of Kim to the Branch to her supervisor, Dustin Chase, by email on April 5, 2002. CISC and Lu's Branch Manager agreed that Lu would continue to serve all of her existing clients, and that Kim would split new business at the Branch with Lu. It is in dispute whether any of Lu's existing clients or accounts were reassigned to Kim.

In 2005, routine FA surveillance by CISC's Compliance Department detected possible compliance issues with Lu's trades and sales of the Oppenheimer Senior Floating Rate Fund (the "Fund") for the period January 1, 2005, through August 30, 2005. The surveillance team concluded that Lu was selling the Fund to customers in violation of the suitability and risk tolerance guidelines from CISC's Registered Representative Manual (the "RR Manual"). While Lu does not contest the surveillance team's numerical findings regarding her sales of the Fund, she challenges its conclusion that she was not in compliance because, she contends, each customer who was "over-concentrated" in the Fund signed a waiver form. The surveillance team also found that Lu was modifying customer information so that the customers would appear to comply with the solicitation requirements in the RR Manual; Lu disputes this and contends that these requirements were unclear.

Because of these possible compliance issues, Lu was referred to CISC's Disciplinary Action Committee ("DAC"). The DAC determined that Lu should be placed on CISC's Heightened Supervision Program ("Heightened Supervision") for three months. Lu was notified of the DAC's determination and signed an acceptance letter acknowledging the terms of her Heightened Supervision, which required additional oversight of her trades and sales but did not prohibit her from working or affect her compensation. On March 27, 2006, Lu was notified that she had been removed from Heightened Supervision; on March 30 she signed a letter acknowledging that "any future compliance deficiencies or violations of policy could result in the re-imposition of heightened supervision, fines, and/or additional sanctions up to or including termination." Def.'s 56.1 Stmt. ¶ 90; Def.'s 56.1 Stmt. Ex 27.*fn2

On February 9, 2006, CISC hired Chuanlu "Charles" Qiu ("Qiu"), an Asian-American male of Chinese descent, as an FA in the Branch. Lu's supervisor at the time, Jerry Wiffler, and CISC's Regional Investment Manager, Richard Eisman ("Eisman"), met with Lu to inform her that they would be reassigning some of her accounts in order to seed Qiu's book of business and to attempt to increase production in the Branch.*fn3 Qiu was ultimately assigned approximately 600 of Lu's 2000 brokerage accounts, over Lu's protests.

In September 2006, the CISC Compliance Department again detected possible compliance issues with Lu's sales of the Fund during its routine surveillance. Mimi Koo ("Koo"), a CISC Compliance officer, and Eisman met with Lu; Koo subsequently submitted to CISC's general counsel a memoranda entitled "Supervisor Visit to Valerie Lu," which asserted that Lu had returned to the same sales practices which had warranted her placement on Heightened Supervision; Lu disputes this.

As a result of Koo's memorandum, Lu was audited, and CISC Senior Compliance Examiner Lee Weiss prepared a memorandum outlining numerous problems with Lu's files. On November 7, 2006, Eisman and another CISC manager met with Lu and informed her that she was terminated because of her sales practices; Eisman subsequently memorialized this determination and submitted a "Recommendation for Termination" to his superior and CISC human resources. On November 29, 2006, CISC filed a Form U-5,*fn4 stating the reason for Lu's termination as: "Following conclusion of period of heightened supervision, firm lost confidence in rep's sales practices." Defendant's 56.1 Stmt. ¶ 114.

SUMMARY JUDGMENT UNDER TITLE VII

"Summary judgment should be granted if 'there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law.'" Blanch v. Koons, 467 F.3d 244, 250 (2d Cir. 2006) (quoting Fed. R. Civ. P. 56(c)). There is a genuine dispute as to a material fact when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party," Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); the "facts must be viewed in the light most favorable to the nonmoving party." Ricci v. DeStefano, 129 S.Ct. 2658, 2676 (2009) (quoting Scott v. Harris, 550 U.S. 372, 380 (2007)).

In federal discrimination cases under Title VII, where, as here, no direct evidence of employment discrimination is presented, the Court applies the well-established three-part McDonnell Douglas burden-shifting test. See Dawson v. Bumble & Bumble, 398 F.3d 211, 216 (2d Cir. 2005) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-04 (1973)).

Ordinarily, a plaintiff must first establish a prima facie case of discrimination by showing that (1) he is a member of a protected class; (2) he is competent to perform the job or is performing his duties satisfactorily; (3) he suffered an adverse employment decision or action; and (4) the decision or action occurred under circumstances giving rise to an inference of discrimination based on his membership in the protected class. If the plaintiff succeeds, a presumption of discrimination arises and the burden shifts to the defendant to proffer some legitimate, nondiscriminatory reason for the adverse decision or action. If the defendant proffers such a reason, the presumption of discrimination created by the prima facie case drops out of the analysis, and the defendant will be entitled to summary judgment unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination. The plaintiff must be afforded the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons but were a pretext for discrimination.

Dawson, 398 F.3d at 216 (internal cites and quotations omitted). Lu's membership in the protected classes and qualification to work as an FA -- McDonnell ...


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