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Grace Flood v. Ubs Global Asset Management

February 1, 2012


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


Plaintiff Grace Flood brings this action against her former employer, defendant UBS Global Asset Management, Inc. ("UBS"), alleging gender discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8--101 et seq. Before the Court is defendant's motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, the motion is GRANTED.


Flood worked for UBS from April 2006 until May 2008. (Def.'s 56.1 Statement ¶ 2.) During that time, she worked for UBS's Financial Institutions Group ("FIG") as a member of its business development team. (Id.) Her team's primary role was to generate new business for UBS. (See id.) Flood had approximately fifteen years of experience in the asset management industry and had worked for the Bank of New York immediately prior to joining UBS. (Id. ¶ 3; see Pl.'s Dep. Ex. 24.)

While still working at Bank of New York, Flood obtained an interview with UBS after one of her contacts recommended her to Robert McGowan, the head of UBS's Financial Institutions Group. (Def.'s 56.1 Statement ¶ 4.) McGowan interviewed Flood and recommended to his boss that she be offered a position on his team. (Id. ¶ 5.) McGowan thought Flood came across as "hardworking, diligent, team-oriented, [and] results oriented." (Id.) McGowan's boss, Mary Tritley, head of UBS's U.S. Institutional Business Practices group, approved McGowan's recommendation, and UBS offered Flood a position as a Director of New Business Development. (Id.) At the time Flood was hired, the business development team consisted only of her and McGowan; McGowan was her boss. (Id. ¶ 6.) Shortly after she started work, Flood met with McGowan to discuss how they would divide a list of prospective clients from whom they hoped to generate new business. (Id. ¶ 6.) Flood and McGowan divided the list, and Flood was pleased with her list of prospects. (Id.) In March 2007, UBS, through McGowan's recommendation, hired another Director of New Business Development named Atticus Fallon (a male). (Id. ¶ 14.) Like Flood, Fallon reported to McGowan. (Id.) After Fallon was hired, he, Flood, and McGowan met and decided how to divide the list of client prospects, and, as before, Flood was pleased with her share of the list. (Id. ¶ 15.)

Until August 2007, Flood had a positive experience working for McGowan. (Id. ¶ 9.) Flood testified at her deposition that she believed McGowan was a supportive boss. (Pl.'s Dep. 164:2-4.) He shared product knowledge with her, he helped her prepare for client conferences and sales calls, and he gave her positive feedback on her work performance. (Def.'s 56.1 Statement ¶ 10.) In a written performance evaluation at the end of 2006, McGowan gave Flood the rating of "2C." (Id. ¶ 11.) A rating of "2C" indicates that the employee "meets profile" and is "effective." (Id.) Tritley agreed with McGowan's assessment. (Id.)

By the spring of 2007, a year after she began working at UBS, Flood had not brought in any new business. (See id. ¶ 12.) Tritley testified at her deposition that this concerned her because she expected that someone in Flood's position would have "something very actively going" after a year on the job, but that Tritley "hadn't seen any evidence of [Flood's] ability to close [new business]." (Tritley Dep. 25:24, 28-29:2-4.) Tritley also testified, however, that the average time for an employee to close on new business was between twelve and eighteen months and that closings before the twelve month mark would be "unusual." (Id. at 26:10-15.)

McGowan expressed similar concerns about Flood to Sarah Watson, one of UBS's Human Resources professionals. (Def.'s 56.1 Statement ¶ 13.) Watson testified, however, that McGowan indicated that any issues with Flood "[weren't] too much of a cause of concern at that point." (Watson Dep. 24.)

Flood's troubles began in August 2007. Just prior to that time, in July 2007, two portfolio managers, Vince Willyard and Joseph Devine, joined UBS from another firm. Their biggest and most important client was the Frank Russell Company ("Russell"). (Def.'s 56.1 Statement ¶ 16.) Willyard and Devine managed more than $1 billion for Russell and wanted to ensure that Russell's assets were transferred smoothly to UBS. (Id.) At the time, Russell was also one of Flood's prospect companies. (Id. ¶ 17.) Before Willyard and Devine joined UBS, Flood had attended at least two meetings with Russell and had met a manager from Russell, but she had not brought in any business from the firm. (See Pl.'s Dep. 251-53.) Flood did not know any of Willyard's or Devine's contacts at Russell. (Id. at 350.)

Flood worked on transitioning Willyard and Devine's Russell account for approximately six weeks. (Flood Decl. ¶ 2.) Willyard and Devine testified that during that time, Flood called them frequently and expressed an "eagerness to cross-sell [Russell] immediately into new products." (Willyard Dep. 80:11-17.) Devine testified that he considered the frequency of the phone calls to be "a little bit overbearing," (Devine Dep. 43:11-13), and Willyard considered them "annoying." (Willyard Dep. 80:12.) Willyard and Devine were concerned that efforts immediately to solicit new business from Russell might upset Russell because Russell already was in a "bad mood" about Willyard and Devine's move to UBS. (Willyard Dep. 78:4-5.) Willyard and Devine felt they "needed to deliver a few quarters of really good performance" for Russell before Russell would be receptive to any new sales pitches. (Id. at 78:12-20.) Willyard felt that Flood's "aggressive, salesy" approach could have jeopardized the relationship with Russell during a sensitive time. (Willyard Dep. Ex. 4.*fn1 ) Flood disputes the extent and nature of her contacts with Willyard and Devine. She denies that she repeatedly called them to express an eagerness to cross-sell products to Russell and asserts that she had only "infrequent email and telephonic contact with Willyard and his team . . . almost entirely in connection with moving the Russell accounts over to UBS." (Flood Decl. ¶ 2.) Flood admits, however, that she informed Willyard and Devine that she "had had various communications and meetings with Russell in the past and gave [Willyard and Devine] an idea of the scope of UBS's familiarity with Russell." (Id.)

At some point, Willyard decided that Flood was not the best "personality fit" for the Russell account. (Willyard Dep. 87.) He also testified that he believed the most senior member of the Financial Institutions Group should handle the transition because of its importance. (Id. at 86.) Accordingly, Willyard called McGowan and requested that "the most senior person" be assigned to the Russell account. (Id.) McGowan consulted with Tritley about Willyard's request, and they agreed that McGowan, the most senior business developer, should handle the Russell account. (Def.'s 56.1 Statement ¶ 21.) Willyard made a similar request with respect to Caterpillar, another one of Willyard's large clients. (Id. ¶ 22.) In response, Tritley took over the Caterpillar account from a man named Michael Howard, who previously had been assigned to it. (Id.) Although Flood was removed from the Russell account, she retained responsibility over Willyard's third largest client, Northern Trust, who had over $400 million in assets with UBS. (Id. ¶ 24.)

In mid-August 2007, McGowan left Flood a voicemail informing her of and explaining the Russell reassignment. (Id. ¶ 23.) McGowan explained that Willyard wanted the most senior person on the account and that Willyard believed Flood was not the right "personality fit" for the account. (Id.) Flood testified that she believed McGowan's use of the phrase "personality fit" in his voicemail was a "code word for possible gender issues" because it was "too vague" to support "corrective action," because she had not made any errors relating to the Russell account, and because Devine had told her that his Russell clients liked to be "wined and dined." (Pl.'s Dep. 337-78; Flood Decl. ¶ 5.)

When she spoke to McGowan over the phone two days later, Flood asked him if she was removed from the account because she was a "girl," or because it was a "guy's thing," a "boy's club," or a "frat thing." (Def.'s 56.1 Statement ¶ 23.) Flood testified that McGowan became very angry and responded, "[D]on't even go there." (Pl.'s Dep. 342.) She described his tone as "[v]ery vehement," (id.), and asserted that he screamed at her. (Flood Decl. ¶ 4.) Flood interpreted McGowan's comment as a "threat that I had better not pursue the gender discrimination issues I had just raised." (Id.) Flood then asked McGowan if, in light of the Russell reassignment, the prospect list would be re-examined. (Pl.'s Dep. 343.) Flood testified that McGowan then became even angrier and that she became frightened and started to shake.

(Id.) Flood asserts that this conversation with McGowan "signaled a change in our relationship," (Flood Decl. ¶ 4.), because after the conversation McGowan "would be short in conversations, you know, like a bit colder." (Pl.'s Dep. 406.) Flood also asserts that McGowan became angry and screamed at her again a few weeks after the conversation over a "minor scheduling snafu." (Flood Decl. ¶ 4.)

Shortly after the reassignment McGowan had appetizers and drinks with about twelve individuals, including about three individuals from Russell and five or six from Willyard and Devine's team. (McGowan Dep. 92.)*fn2 Flood asserts that the day after socializing with the Russell clients, McGowan told her that he was hungover. (Pl.'s Dep. Ex. 39, at 2). The reassignment did not have any direct impact of Flood's productivity because Russell never made any new investments through UBS during the relevant period.

Flood asserts that another one of her prospects, the Pacific Life Company ("Pacific Life"), was wrongfully taken away from her. In August 2007, Flood was the lead business development person on Pacific Life when McGowan, while golfing with a business contact, learned that Pacific Life was considering replacing the manager for its Large Cap Growth strategy. (See Def.'s 56.1 Statement ¶ 25.) The information was not public and UBS learned of it only through the confidential information provided to McGowan during that golf game. (Id.) As such, UBS considered it an opportunity that needed to be pursued discreetly. (Id.)

After learning about the Pacific Life opportunity, and about two weeks after the Russell incident, (see Pl.'s Dep. 405), McGowan discussed with Flood and Fallon how best to follow up on the lead. (Fallon Dep. 68-69.) The decision-maker with respect to the Large Cap Growth opportunity at Pacific Life was Carleton Muench, the head of Pacific Life's Manager Research. (Def.'s 56.1 Statement ¶ 26; Fallon Dep. 37.) Fallon knew Muench because they previously had worked together at another company. (Def.'s 56.1 Statement ¶ 27.) In May 2007, Fallon introduced Flood to Muench over lunch. (Id.) The parties dispute the nature of Fallon's relationship with Muench. UBS describes it as a "longstanding personal relationship," (id. ¶ 26; see McGowan Dep. 125, 130), while Flood describes it simply as a "business contact," (Muench Dep. 17), noting in addition that there had been some conflict between the two men during their time as co-workers, (see Vorachek Dep. Ex. 1, at 9.). It is undisputed that Muench and Fallon worked together for approximately two years from 2000 to 2001 and that they maintained sporadic contact after that time. (See Pl.'s 56.1 Statement ¶ 26.) Around September 20, 2007, McGowan decided that Fallon should make the initial contact with Muench regarding the Large Cap Growth opportunity. (Def.'s 56.1 Statement ¶ 28.) On that day, McGowan left Flood a voicemail informing her of the decision. (See Pl.'s Dep. Ex. 25 (transcript of the voicemail).) In the same voicemail, McGowan suggested that he and Flood set up a conference call with "Dewey" at Pacific Life in the next week or so in order to discuss a different business opportunity. (See id.) "Dewey" referred to Dewey Bushaw, an individual at Pacific Life with whom Flood had developed a relationship. (See Pl.'s Dep. 401-02.) Flood considered her contacts at Pacific Life to be "key persons." (Pl.'s Dep. Ex. 24, at 1.) Flood asserts that prior to McGowan's decision on the Large Cap Growth opportunity, she told McGowan that she thought having Fallon pursue the opportunity would interfere with her ongoing efforts with Pacific Life. (Pl.'s Dep. Ex. 24, at 2.)

Flood continued to pursue other opportunities with Pacific Life, including a product known as the 130/30, in which Pacific Life had expressed interest. (Def.'s 56.1 Statement ¶ 28.) Flood prepared a Request for Proposal in connection with a meeting in Chicago during which UBS would pitch the 130/30 opportunity to Pacific Life. (Id. ¶ 29.) Flood also attended a meeting with Pacific Life in New York where UBS pitched the Large Cap Growth opportunity. (Id. ¶ 30.) Flood asserts that she originally was not included on the agenda for the Large Cap Growth meeting and was added only after she complained about being excluded. (Pl.'s 56.1 Statement ¶ 29.)*fn3 In any event, this initiative failed as Pacific Life decided not to hire UBS as the manager for its Large Cap Growth strategy.

On September 25, 2007, after the events involving Russell and Pacific Life, Flood emailed Human Resources with a request to discuss a "serious discrimination/retaliation issue." (Def.'s 56.1 Statement ¶ 31.) That same day, Flood met with Sarah Watson and Toby Sagiv of UBS's Human Resources department and explained that she felt that the Russell reassignment had been discriminatory based on her gender and that the Pacific Life incident had been both discriminatory and in retaliation for questioning McGowan about the Russell reassignment. (Id. ¶ 32.) Watson and Sagiv asked Flood to put her complaint in writing. Flood did so and on October 1, 2007 sent an email memorandum to Sagiv setting forth the details of her complaint. (See Pl.'s Dep. Ex. 24.)

Watson and Sagiv reviewed the complaint with their boss, Ana Ibis Seebrath, the head of Human Resources for UBS's Global Asset Management group in the Americas, and scheduled a meeting with Flood and McGowan to discuss the allegations. (Def.'s 56.1 Statement ¶ 34.) On October 3, 2007, Watson and Sagiv met with Flood and McGowan, but the group could not resolve Flood's concerns. (Id. ¶ 35.) Accordingly, Watson indicated that Human Resources would conduct a full investigation. (Id.)

Christine Menard, a Human Resources manager in UBS's Hartford office, conducted the investigation. During the course of the investigation, which lasted several weeks, Menard interviewed Flood, McGowan, Fallon, Tritley, and Willyard. (Id. ¶ 38.) Menard also interviewed Nancy Fahmy and Rachel Wood. (Pl.'s 56.1 Statement ¶ 38.) Fahmy and Wood were employees of the Financial Institutions Group; like Flood, they reported to McGowan. (See id.) Although Menard recalls being cautious not to reveal "any identifying information" during the interviews with Fahmy and Wood, (Menard Dep. 85), the record suggests that Wood became aware that Flood had made a complaint against McGowan. (See Tritley Dep. 88.) Menard did not interview anyone at Russell, nor did she interview Carleton Muench, the head of Manager Research at Pacific Life. (Pl.'s 56.1 Statement ¶ 38.) At the conclusion of the investigation, Seebrath and Menard issued a six-page report. The report concluded that Flood's claims of gender discrimination and retaliation were without merit. (See Pl.'s Dep. Ex 37.) As Flood points out, the report indicated that during the investigation, "Vince [Willyard] stated that he was concerned at what he described as Grace's 'aggressive' approach." (Id. at 4.) The report also indicated that "Grace was described by team members as, at times, friendly and helpful and, at other times, sporadically rude and abrasive." (Id. at 6.) The report also notes that members of McGowan's team "described him as passionate." (Id. at 4.)

On November 5, 2007, Seebrath, Menard, Flood, and McGowan met to discuss the report. During the meeting, Flood stated repeatedly that she disagreed with the report's findings. In response, Seebrath asked Flood to "tell us what you want here." (Pl.'s Dep. 305.) Flood interpreted this comment to mean that Seebrath was suggesting that Flood resign. (See id. at 306.) Flood responded that she valued her job and that she wanted to continue to work at UBS. (Id.) Seebrath then explained that UBS would be willing to hire an outside investigator to conduct a second investigation, but Flood did not offer an opinion on that option at the meeting. (Def.'s 56.1 Statement ¶ 41.)

On December 3, 2007, Flood sent an email to Seebrath and Menard in which she detailed her criticisms of their report. (See Pl.'s Dep. Ex. 39.) Among other things, Flood's email asserts that the report "did not consider pertinent information," "is replete with factual errors and contradictions," and "contains discriminatory and insulting stereotypical statements about [Flood]." (Id. at 1-2.) Specifically, Flood faulted UBS for ignoring McGowan's behavior after Flood questioned him about the Russell assignment, for failing to consider that Flood was "senior" enough to handle the Russell account, for failing to investigate the history of Fallon and Muench's relationship, and for "solicit[ing]" from Flood's co-workers descriptions of her as "aggressive," "rude," and "abrasive." (See id.)

In light of Flood's disagreement with the initial report, UBS hired an outside attorney to conduct a second investigation. The second investigation was conducted by Darlene Vorachek, a Chicago civil rights attorney with experience in conducting these types of investigations. (Def.'s 56.1 Statement ¶ 43.) Like Menard, Vorachek interviewed Flood, McGowan, Fallon, Tritley, Wood, Fahmy, and Willard. (Id.¶¶ 45, 47.) Vorachek also interviewed Sagiv, Menard, Seebrath, and Devine. (Id. ¶ 47.) Vorachek reviewed emails, personnel files, performance evaluations, and UBS policies, as well as Flood's notes from the prior investigation. (Id. ¶ 44.) Vorachek did not interview anyone at Russell, nor did she interview Carleton Muench. (See Pl.'s 56.1 Statement ¶ 44, 46.) On February 28, 2008, Vorachek issued a nineteen page report detailing her findings. (See Vorachek Dep. Ex. 1.) Like Menard and Seebrath's report, Vorachek's report determined that Flood's claims were without merit. Flood received a copy of the report on March 6, 2008. (Def.'s 56.1 Statement ¶ 53.)

On March 18, 2008, Flood emailed Mika Kishimoto (who had taken over for Watson while Watson was on maternity leave) to express her disagreement with Vorachek's report. (See Pl.'s Dep. Ex. 46.) The next day, Kishimoto and Seebrath met with Flood and McGowan to discuss the report. Seebrath expected Flood to be prepared to address the report in detail in order to finalize the matter, (see Seebrath Dep. 165), but Flood testified that she had not been asked to do so prior to the meeting. (Pl.'s Dep. 309.) Accordingly, Flood told Seebrath at the meeting that she had not yet had the opportunity to review the report in detail and therefore was not prepared to go through it in the manner Seebrath desired. At this point, Seebrath told Flood that she was being "uncooperative" and that "[t]his has been very disruptive to the group." (Pl.'s Dep. 309-10.) Flood's testimony suggests that McGowan also stated, "[T]his was a big distraction, huge . . . for the team." (Id. at 320.) Flood testified that Seebrath also told her that she "could never again raise these false accusations." (Id.) Flood believed that it was unclear whether Seebrath intended those comments to imply that Flood would be prohibited from bringing future claims of discrimination. (See id. at 311-12.) Seebrath, on the other hand, testified that she told Flood to come to her if there were any further issues. (See Seebrath Dep. 167:19-24.)

Approximately two weeks later, Flood again met with Seebrath and Kishimoto. Seebrath told Flood that she wanted to discuss what Flood "now wanted going forward." (Pl.'s Dep. 313.) Flood again explained that she valued her job and that she felt she could continue to be a productive member of the team. (Id.) Flood at his point believed she no longer had any power to pursue further her discrimination claims internally. (Id.) Flood also ...

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