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Martinez-Santiago v. Zurich North America Insurance Co.

January 21, 2010


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


Plaintiff brings an action for employment discrimination against her former employer, defendant Zurich North America Insurance Co ("Zurich"). She alleges (1) that when returning from maternity leave following the birth of her child, her request to work from home was denied because of her race, and (2) that after she complained about the discrimination, Zurich retaliated with unfair criticism of her work and the disproportionate assignment of new files. Defendant moves for summary judgment on all counts. For the reasons that follow, defendant's motion is GRANTED in its entirety.


Taken in the light most favorable to plaintiff, as the party against whom summary judgment is sought, the record, which includes depositions, declarations, and documentary exhibits from plaintiff as well as relevant employees at Zurich, indicates the following.

Plaintiff was formerly employed by Zurich as claims counsel in Zurich's Professional Liability Department in New York. Zurich is a commercial property-casualty insurance provider. (Def. 56.1 Stmt. ¶ 1; Troisi Decl. ¶ 1.) Plaintiff previously worked as an attorney at the law firm Schoeman Updike, but for various reasons unrelated to this action decided to move on. (Pl. Dep. 29.) She applied to Zurich in the summer of 2002 and was interviewed by Chris Troisi, Damiano Servidio, and Brian Baney. (Pl. Dep. 30.) Troisi, and possibly the others, recommended her for the position. (Troisi Decl. ¶ 2.) Troisi is one of the decision-makers at Zurich accused of discriminating against plaintiff because she is African-American and Hispanic.

Plaintiff commenced employment with Zurich in September 2002. (Def. 56.1 Stmt. ¶ 3.) Claims counsel at Zurich are assigned to a department and to a particular team and team leader within that department. Damiano Servidio was the overall supervisor for the Professional Liability Department. (Pl. Dep. 61-62.) Troisi and Baney were the two team leaders within that department, and plaintiff was assigned to Troisi's team. (Def. 56.1 Stmt. ¶ 14, Pl. Dep. 43.) Accordingly plaintiff reported to Troisi as her direct supervisor, and he oversaw her day-to-day work, conducted her performance evaluations, and decided her requests for raises and other discretionary benefits. Baney did the same with respect to members of his team, and both reported to Servidio who occasionally had input into those decisions.

Plaintiff's starting salary at Zurich was $78,000, and she was allotted 22 days of paid time off ("PTO"). (Def. 56.1 Stmt. ¶ 47.) Six other claims counsel were hired in the Professional Liability Department in 2002 and 2003. They were: C. Cannistraci, paid $78,000 with 22 days PTO; E. Millard, paid $75,000 with 22 days PTO; S. Greitzer, paid $78,000 with 24 days PTO; G. Schmidt, paid $75,000 with 24 Days PTO, C. Butera, paid $82,000 with 24 days PTO; and E. Schwartz, paid $80,000 with 24 days PTO. (Id., Reale Decl., ¶5, Ex. A.) All of the hires other than plaintiff were white. (Id.)

As a claims counsel, plaintiff managed a caseload of potential claims, pre-lawsuit claims, and lawsuits. (Def. 56.1 Stmt. ¶12.) She was responsible for the tasks attendant to processing her claims (or 'files'): analyzing whether there was coverage, issuing coverage and reservation of rights letters, negotiating settlements, and assigning counsel as necessary. (Def. 56.1 Stmt. ¶ 13.) She was also tasked with staying up to date on her files by maintaining a diary system, and maintaining a record of her progress on each case. (Id.) During her full-time employment, she generally maintained around 150 to 170 claims. (Def. 56.1 Stmt. ¶ 75.)

Plaintiff was a good employee at Zurich. On the company's standardized performance evaluation, anything above a 1.0 was considered a good score, and plaintiff scored a 1.07 on the year-end review for 2003. (Nuwesra Decl. Ex. D.) Troisi conducted her performance evaluations, and used them both to compliment plaintiff on her work and to provide constructive criticism on areas in which she needed improvement. For example, in the 2003 year-end evaluation he commented that plaintiff's "main strength is in evaluating claims and negotiating settlements. She is aggressive and is always willing to actively participate.." (Id.) However he also noted that plaintiff was "still working on issuing timely coverage letters and using a diary system," and that he expected her to "improve in timeliness of reserve changes." (Id.)

On or around November 5, 2003, plaintiff received a four percent raise. (Def. 56.1 Stmt. ¶ 22.) Unhappy that the raise was less than she had requested and less than she felt she deserved, she told Troisi by e-mail that she "couldn't help but be disappointed by the amount of my raise.I like to think that Zurich is the kind of Company that rewards both loyalty and good work." (Reilly Decl. Ex. 1.) (also explaining specific ways that her work had profited the company). Troisi replied:

Mirna, I am sorry that you are disappointed with your raise. [paragraph complimenting plaintiff on her strengths as an employee]

However, I have also told you the need for improvement in certain areas and discussed this with you today. I have discussed with you many times your need for a better diary system and better organizational skills. As you'll recall, there were several occasions where coverage letters, even denials did not go out timely. In addition, the quality of the letters has only just improved to the point where I no longer need to review your reservation of rights letters. Overall, lack of follow up has been a problem.

Again, I still believe this is a fair raise based on overall performance. If you wish to discuss this further, please let me know. (Id.) Plaintiff now believes that "it appears that Mr. Troisi's hostility towards me began after I questioned the inadequate raise." (Pl. Decl. ¶ 26.) She has not asserted that race was a factor in that decision, however.

On or about December 23, 2003, plaintiff submitted a request to work from home part of the week pursuant to Zurich's Alternative Work Arrangement policy ("AWA"). (Def. 56.1 Stmt. ¶ 23.) At that time she was an expectant mother, and her doctor confirmed in writing that it was necessary for her to do some of her work from home in the weeks leading up to her due date. (Pl. Dep. 158:13-24, Ex. H.) Zurich's AWA policy provides that

[t]o the extent job responsibilities and business needs can accommodate flexible work arrangements, the Company encourages managers to work with employees to explore options that will enhance employee satisfaction and retention while continuing to meet product and service standards..This policy applies to all employees. In addition, you must have:

fl ability to meet department and Company-wide business goals fl proven record of achieving high performance fl adequately shown you can perform job within the proposed

Flexible Work Arrangement option (Def. 56.1 Stmt. ¶ 8.) When employees request an AWA, they fill out and sign a request form that stipulates, inter alia, that "telecommuting is not a substitute for dependent care," and that "[i]f a dependent is home during working hours, I understand that another responsible adult must be present to provide primary care and supervision." (Def. 56.1 Stmt. ¶ 10.) Plaintiff filled out and signed one of these forms. (Def. 56.1 Stmt. ¶ 25.) Troisi approved the request after referring her to human resources to fill out documentary forms regarding the medical basis for the request. (Def. 56.1 Stmt. ¶ 24; Pl. Counter 56.1 Stmt. ¶ 24.) To facilitate her working from home plaintiff was provided with a laptop on which she could access her files, and Troisi agreed that if she needed anything faxed while working at home he would do it for her. (Troisi Dep. 81:19-23.)

Following the birth of her child (a baby boy), plaintiff began maternity leave on January 23, 2004. (Pl. Decl. ¶ 10; Pl. Counter 56.1 Stmt. ¶ 27.) At the end of her statutory maternity leave, plaintiff requested a leave of absence, which ...

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