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Tahra Kerman-Mastour v. Financial Industry Regulatory Authority

September 30, 2011

TAHRA KERMAN-MASTOUR, PLAINTIFF,
v.
FINANCIAL INDUSTRY REGULATORY AUTHORITY, INC., ET AL., DEFENDANTS.



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

MEMORANDUM OPINION AND ORDER

Tahra Kerman-Mastour ("Kerman") brings this diversity suit against her former employers, the Financial Industry Regulatory Authority, Inc. and FINRA Regulation, Inc. (collectively "FINRA") pursuant to the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Plaintiff is not pursuing claims under Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; or under the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq. Kerman was employed as an attorney by FINRA and a precursor agency in the New York Stock Exchange ("NYSE") for approximately eight years before she was terminated. Kerman claims she was terminated as a result of gender and religious discrimination and in retaliation for her participation in a committee advocating for changes to FINRA's maternity leave policy; FINRA claims she was fired because she was incompetent. FINRA moved for summary judgment on January 25, 2011.

The Court heard oral argument on the motion on September 16, 2011. For the reasons stated below, FINRA's motion is GRANTED.

BACKGROUND*fn1

Kerman is a lawyer and a devout Orthodox Jew. (Kerman Aff. ¶ 18.) She graduated from Cardozo Law School in 2000 (Kerman Dep. 10: 24-25) and began working at the New York Stock Exchange ("NYSE") as an attorney approximately one year later (Id. 18:10-14, 19:11-12). Kerman received two promotions without incident, one in December 2002 and a second in May 2004. (Id. 21:21-22:6.) During that period, Kerman's written evaluations do not contain any negative feedback. (Heller Affirm. Exs. B, C; Light Dep. 32:5-7.)

Kerman's troubles began in 2005. In Febraury 2005, Kerman's immediate supervisor was Joy Weber ("Weber"), and her next higher supervisor was Sue Light ("Light"). (Kerman Dep. 33:14-24.) In early 2005, Kerman was up for another promotion. (Id. 34:2-3). On April 15, 2005, a month or two before Kerman could have been promoted, Light called Kerman into her office and informed her that she was not ready to be promoted at that time. (Id. 34:4-21.) The parties dispute precisely what form Light's criticism took; however, it is undisputed that Light told Kerman that she had not demonstrated a proficiency and understanding of more complex cases, but that Light would recommend her for promotion when she did. (D. St. ¶ 7; P. St. ¶ 7.) Kerman followed up on her conversation with Light by speaking with her most recent supervisor, Julie Broderick ("Broderick"), and, according to Kerman, Broderick said that Light had not spoken with her and that Broderick had never had problems with Kerman's work. (Id. 36:6-21.) Light recalls speaking to Broderick, but leaving this dispute aside, Light recorded the results of her review of Kerman's work in a memo to Kerman's file prepared in 2005. (Heller Affirm. Ex. D.) In that memo, Light states that she had spoke with several of Kerman's past supervisors, though she does not name all the supervisors by name. (Id. at 1.) Light does report that her present supervisor, Joy Weber was disappointed by Kerman's level of performance. (Id.) Light notes that Kerman's new supervisor, Richard Chin ("Chin"), believed that her present case load was "junior" and that she needed to take on more complex matters. (Id.) Light went through Kerman's cases herself and also found them to be simple cases that a first or second year attorney would handle, not commensurate with her years of experience. (Id.)

Kerman testified that Light's negative review in early 2005 reflected Light's discrimination against her because she had recently announced that she was pregnant with her second child and would be taking maternity leave shortly. Kerman offers no circumstantial evidence of Light's alleged discriminatory animus. Light herself is a Jewish mother of two, and Light reported to Susan Merrill ("Merrill"), also a Jewish mother. (Defs.' 56.1 Stmt. ¶¶ 151-52.) Chin took advantage of the NYSE's paternity leave policy. (Id. ¶ 140.) In addition, a substantial number of Kerman's co-workers were women, and many of them took maternity leave. (Id. ¶ 154.) Despite Light's recommendation that Kerman not be promoted, Susan Merrill ("Merrill") decided to give Kerman "the benefit of the doubt" and promote her. (Merrill Decl. ¶ 3.)

Some months thereafter, Kerman gave birth to her second child and took maternity leave. She returned from maternity leave in February 2006. (Kerman Dep. 54:19-21.) After she returned, Richard Chin provided her with an evaluation for her work for the year 2005. The evaluation stated, Tahra should strive to conduct more detailed and comprehensive investigations. Although Tahra completes her investigations quickly, certain of her investigations (described below) omitted information or contained inaccurate information. The omitted information was necessary to conduct an appropriate analysis of the matter.

(Heller Affirm. Ex. E at 1.) The evaluation went on to point out specific deficiencies in Kerman's work product (id. at 2) and concluded, "Tahra's overall work performance met the minimum requirements of her position. . . . Although Tahra is receiving a meets requirements rating, it is essential that she further develop her legal and investigative skills" (id. at 4).

As with Light's evaluation, Kerman considered Chin's evaluation to be rife with discrimination, largely because Chin had evaluated her negatively despite only having been her supervisor for about three months. (Id. at 55: 8-11.)*fn2

In early 2007, Chin provided Kerman with an evaluation of her work for the year 2006. This evaluation is considerably improved, stating,

During the Relevant Period, the quality of Tahra's written work product has improved. The investigative findings section of her documents are very detailed and she does an excellent job finding precedent relevant to the issues in the case. Tahra uses the editing process to develop and hone her skills as a lawyer. (Heller Affirm. Ex. G at 2.) However, the evaluation does contain a cautionary note that Tahra will be expected to "become more independent in areas that do not require supervisory input" (id. at 2) and "investigate and/or prosecute cases involving more complex issues" (id. at 5) in 2007. Kerman does not claim that Chin's evaluation was discriminatory. Shortly thereafter, in February 2007, Kerman was promoted to "trial counsel." (Chin Dep. 89:15.)

In March 2007, Kerman announced that she was pregnant with her third child, an announcement that led in Kerman's eyes to a significant deterioration of her relationship with Chin. (Kerman Aff. ¶ 46.) Kerman characterized Chin's reaction to her news as "horrific." (Kerman Dep. 79: 16.) He kept "shaking his head and he couldn't believe it." (Id. 79: 18-19.) He told her, "I'm taking my director's cap off and I'm talking to you like a friend." (Id. 80: 6-8.) He proceeded to ask her, "Was this planned?" "Was this an accident?" "Don't you have your hands full?" and "Isn't two enough?" (Id. 80:13-16.) Kerman believes that her announcement changed Chin's opinion of her as an attorney, leading him to see her as "a religious mother who was focused more on having children than a career as an enforcement attorney at NYSE." (Kerman Aff. ¶ 51.)

At some point during this approximate time period, Kerman also felt that Chin was being insensitive to her needs as an observant Jew. He took the unit out for lunch, but picked a restaurant that did not serve Kosher food. (Kerman Dep. 111:17-23.) Kerman called ahead to explain to the restaurant that she would be bringing a Kosher meal. (Id. 111:25-112:4.) Nonetheless, she believed that it was culturally insensitive that Chin did not think to make arrangements for her. (Id. 112:22-113:7.) She did not alert Chin to her unhappiness, either before or after the lunch, however. (Id. 113:8-16.)

In June 2007, Kerman experienced complications with her third pregnancy and had to leave work earlier than expected after her doctor ordered bed rest. (Kerman Dep. 88:8-12.) While she was out on maternity leave, the division of NYSE that she was working for merged with the National Association of Securities Dealers ("NYSD") to form FINRA. (Kerman Aff. ¶ 55.) Kerman was offered a new job with FINRA working for the same supervisor, and she did not have to interview for this position. (Id.)

Kerman returned from maternity leave to her new job at FINRA on February 29, 2008. (Id. ¶ 58.) On March 4, 2008, Kerman received an evaluation for 2007. The evaluation praised Kerman's work on one trial, but criticized her for the time it took her to complete investigations, for the quality of her written work and the thoroughness of her analysis. (Heller Affirm. Ex. I.) Kerman claims that in this meeting, Chin stated that he had wanted to say something about her performance earlier, but she was in too many "protective classes." (Kerman Dep. 137:7.) Chin denies that he made this remark. (Chin Dep. 118:11-17.) Kerman also learned that her 2007 bonus and merit raise were going to be prorated to take into account the fact that she was on maternity leave for a portion of the year. (Kerman Dep. 138:3-6.) Kerman had heard from a friend who had also taken maternity leave that her bonus was not prorated. (Id. 138:10-14.) Chin told her he was going to call human resources and find out which practice was appropriate (id. 139:3-5), but according to Kerman he also asked her, "Are you telling me that you're deserving . . . of the same bonus of somebody who's been working here a full year?" (Id. 140:7-9.) Shortly before Chin discussed Kerman's bonus with her, however, he had suggested to HR that her bonus be lowered from $7,000 to $6,000. (Heller Affirm. Ex. K.) In the end, Chin informed her that "FINRA encourages managers to prorate," though Kerman checked on the FINRA intranet and found that it was at the manager's discretion. (Kerman Dep. 139: 14-24.)

At approximately the same time, Chin also informed Kerman that her new title would be "principal counsel," whereas she had held the title of "trial counsel" at NYSE. (Id. 118: 9-12.) Kerman believed that the change in her title effectively constituted a demotion. (Kerman Aff. ¶ 72.) According to Chin, Kerman's title changed because FINRA changed former NYSE employees' grade levels to reflect a new FINRA job categorization system. (Chin Dep. 122:20-23.) He claimed that he was not involved in the decision to categorize Kerman as "principal counsel" and that he believed the decision was made based on the number of years an individual had been out of law school. (Id. 125:4-21.) The conversion of NYSE job titles to FINRA job titles is described in a chart, which the defendants have provided. (Walker Decl. Ex. I.) The chart reflects that the single NYSE title "trial counsel" has been divided into six job titles at FINRA. (Id.) None of these new job titles is "trial counsel." (Id.)

When she returned from maternity leave, Chin also had a chat with her about her work schedule. Up until that point, Kerman would usually arrive at work between 8:00 and 8:30, but sometimes as late as 9:00 and usually leave at 5:00 or shortly thereafter. (Kerman Dep. 158:3-6.) Soon after Kerman returned from maternity leave, Chin called her into his office to tell her that FINRA required that she work an eight-hour workday and that she could not credit her lunch hour to those eight hours. (Id. 158:11-14.) He then asked her whether she would prefer to work an eight-to-five shift or a nine-to-six shift. (Id. 158:16-17.) She indicated that she would prefer to work the eight-to-five shift. (Id. 158:18.) When Kerman asked her co-workers what shifts they had chosen, they had no idea what she was talking about. (Id. 158:19-22.) Kerman took this interaction as a sign that Chin was singling her out "to make things difficult" for her. (Id. 158:23-159:2.) Kerman testified that Chin had helped a paralegal receive overtime credit for working through lunch, though there is no evidence that Kerman ever requested that she be credited with overtime for working through lunch or that any other lawyers were ever given overtime. (Id. 159:2-9.)

Meanwhile, according to defendants, Kerman's performance at work continued to be unsatisfactory. Chin states that he repeatedly assigned Kerman cases only to find that she did not work on them for months. For example, Chin assigned Kerman a case in April 2008 and promptly helped created a "to do" list for the case, only to find that she completed no work on the case for five months, despite the fact that Chin and Light repeatedly followed up with Kerman to inquire about the status of the case. (Chin Decl. ¶¶ 8-16.) Chin assigned Kerman another case in April 2008 that she did not work on until early August. (Id. ¶¶ 27-33.) Although she made a small amount of progress on the case in early August, she did not make additional progress on the case until late October. (Id. ¶¶ 33-36.)

During the Fall of 2008, Chin had several encounters with Kerman which she claim reveal his bias against her religion. In September 2008, Chin asked Kerman whether she had made reservations to attend an upcoming conference. (Kerman Dep. 187:6-11.) Kerman informed him that she would not be attending because the conference conflicted with the Jewish holiday Sukkot. (Id. 187:12-20.) Chin responded, "Pardon my ignorance because my ex-wife was Jewish. What's Sukkot?" (Id. 187:21-24.) Kerman believed that Chin's manner was very sarcastic when he asked this question. (Kerman Aff. ¶ 76.) She answered his question, and he asked her to write up an email explaining why she would not be attending the conference and what Sukkot was. (Kerman Dep. 188:6-19.) Another manager, Suzanne Elovic ("Elovic"), also an observant Jew, did not attend the full conference because of its conflict with Sukkot, though she did attend portions of it. (Id. 188:21-189:3.)

Around the same period, Kerman learned that she was not going to have enough vacation days in reserve to take off time for the Jewish holidays, many of which fell on weekdays that year. (Id. 191:25-192:10.) As a result, Kerman took several unpaid days off. (Id. 192:11.) According to Kerman, Chin complained about her failure to plan ahead and told her not to let it happen again. (Id. 192:11-18.) Kerman testified that Elovic had taken unpaid days off for the Jewish holidays in the past, and "it wasn't a problem." (Id. 193:18-20.)

Finally, at an unknown time in 2008, Chin extended Kerman what she felt was a halfhearted invitation to eat dumplings at a restaurant in Chinatown. (Id. 194:8-19.) Kerman dropped by Chin's office shortly before lunchtime to ask about something work-related, and Chin told her that he and the rest of the unit were going to lunch at Chinatown. (Id. 193:25-194:5.) He informed her that there would likely not be anything that she could eat, and she declined the invitation. (Id. 194:5-7.) She felt that Chin was leaving her out on account of her religion because she suspected that he would not have bothered to invite her to the lunch if she had not stopped by his office when she did. (Id. 195:8-18.)

In September 2008, Kerman became active in a group of employees who had complaints about FINRA's maternity leave policy. (Id. 161:3-11.) The committee was concerned because FINRA employees had received an email stating that FINRA employees would no longer be entitled to take three months of unpaid leave after taking the three months of paid leave that FINRA offered. (Id. 161:3-21.) Kerman attended several meetings, and Chin was aware that she was a member of the committee. (Id. 161:25-162:3.) Kerman believes that at least one member of the committee dropped out because she feared work repercussions. (Id. 162:13-17.) Kerman followed up on the work of the committee by sending an email to Mary Shapiro, the CEO of FINRA, complaining about the policy change. (Id. 167:10-17; Heller Affirm. Ex. M.) In this email, dated September 19, 2008, Kerman also informed Shapiro, "I would like to get pregnant." (Heller Affirm. Ex. M at 1.) Kerman sent the email directly to Shapiro and did not copy either Light or Chin. Chin, Light, and Merrill have stated that they were unaware of plaintiff's email to Shapirio, and plaintiff has offered no evidence to the contrary. (Defs/' 56.1 Stmt. ¶ 33; Pl.'s 56.1 Stmt. ¶ 33.)

Shortly thereafter, on October 29, 2008, Kerman learned that she was going to be placed on a Performance Improvement Plan ("PIP"). (Kerman Aff. ¶ 91.) The PIP was described to Kerman during a meeting with Light and Chin. Kerman was under the impression that she was being placed on the PIP because she had failed to follow up for a while on the two cases described above. (Kerman Dep. 277:16-19.) She also was told that she "needed to just be more efficient and move [her] cases faster . . . ." (Id. 277:14-16.) Light and Chin also suggested that her deposition-taking skills were lacking. Id. 278:5-8.) Nonetheless, Kerman now contends that Chin and Light imposed the PIP not because of deficiencies in her work product, but rather as part of a larger effort to "humiliate" her. (Kerman Aff. ¶ 91.) In her words, "I knew that the ...


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