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Mayling Tu v. Oppenheimerfunds

February 16, 2012


The opinion of the court was delivered by: P. Kevin Castel, District Judge:


Plaintiff Mayling Tu, who is a female of Taiwanese-American descent, asserts that defendants OppenheimerFunds, Inc. ("Oppenheimer") and Daniel Kohn, her former supervisor, terminated her for retaliatory and discriminatory reasons. She asserts claims of retaliation and discrimination on the basis of race, sex and national origin pursuant to 42 U.S.C. § 2000e ("Title VII") and 42 U.S.C. § 1981 against Oppenheimer, as well as claims against both Oppenheimer and Kohn under the New York City Human Rights Law, New York City Administrative Code § 8-107 (the "NYCHRL"). Discovery in this case is closed, and the defendants have moved for summary judgment.

For the reasons explained, the defendants' motion is granted.


The following facts are either undisputed or described in the light most favorable to plaintiff as the non-movant. See,e.g.,Costello v. City of Burlington, 632 F.3d 41, 45 (2d Cir. 2011).

A. Plaintiff's Hiring and Initial Performance Reviews.

In April 2006, Oppenheimer offered plaintiff the position of Senior Project Manager at a salary of $125,000 per year. (Def. 56.1 ¶¶ 9-11; Pl. 56.1 Resp. ¶¶ 9-11.) In December 2006, plaintiff received her year-end review by non-party Jodi Pullman, plaintiff's then-supervisor. (Def. 56.1 ¶¶ 9, 30; Pl. 56.1 Resp. ¶¶ 9, 30.) On a scale of one to five, with one being the most positive score and five being the most negative, Pullman rated plaintiff as a three, which denoted that she met company standards. (Def. 56.1 ¶ 31; Pl. 56.1 Resp. ¶ 31.) Pullman stated at the time that plaintiff "could learn to be more assertive in her communications -- at times she seems indecisive or perhaps too willing to manage by consensus." (Def. 56.1 ¶ 32; Pl. 56.1 Resp. ¶ 32.) At her deposition, the plaintiff agreed that this was "an accurate assessment" of her work. (Def. 56.1 ¶ 33; Pl. 56.1 Resp. ¶ 33; Tu Dep. at 82.)

In the year-end review of December 2007, Pullman again rated plaintiff a three. (Def. 56.1 ¶ 34; Pl. 56.1 Resp. ¶ 34.) The rating incorporated co-worker feedback that was somewhat critical of plaintiff's management and communications skills. (Def. 56.1 ¶¶ 35-42; Pl. 56.1 Resp. ¶¶ 35-42.) One colleague noted that plaintiff's communications should be more concise, and that she would benefit from leadership training. (Def. 56.1 ¶ 38; Pl. 56.1 Resp. ¶ 38.) Plaintiff does not contend that Pullman personally discriminated against her. (Def. 56.1 ¶ 44; Pl. 56.1 Resp. ¶ 44.)

B. Plaintiff's Increasingly Negative Performance Reviews Under Kohn.

Kohn became plaintiff's direct supervisor in February 2008. (Kohn Dep. at 114.) Subsequent reviews included harsher feedback on plaintiff's managerial skills. In mid-February, 2008, Nick Apel, who worked with plaintiff on the Enhanced Online Account Information project (the "EOAI Project"), and defendant Daniel Kohn, who became plaintiff's direct supervisor, discussed their concerns about plaintiff's decision-making and communications skills. (Def. 56.1 ¶ 67; Pl. 56.1 Resp. ¶ 67.) Apel stated that plaintiff struggled to understand the goals of the EOAI project, was ineffective at decision-making and communication, frustrated co-workers, and was "very counterproductive." (Def. 56.1 ¶ 67; Pl. 56.1 Resp. ¶ 67.) Plaintiff was removed from the EOAI Project in February 2008.*fn1 (Def. 56.1 ¶¶ 68-69.)

Kohn then assigned plaintiff to a project known as the Enterprise Fund Master. (Def. 56.1 ¶ 84; Pl. 56.1 Resp. ¶ 84.) On April 11 and April 16, 2008, Enrique Smith, an Oppenheimer vice president, told Kohn that plaintiff was failing to understand the project's business objectives. (Def. 56.1 ¶ 85; Pl. 56.1 Resp. ¶ 85.) Kohn communicated this view to plaintiff. (Def. 56.1 ¶ 86; Pl. 56.1 Resp. ¶ 86.) In October 2008, after receiving complaints about plaintiff's performance from a second vice president, who requested that plaintiff be removed from the project, Kohn removed the plaintiff. (Def. 56.1 ¶¶ 87-88; Pl. 56.1 Resp. ¶ 87-88; Kohn Aff't Ex. G.) Plaintiff's role was filled by a female of Taiwanese-American descent, and plaintiff does not assert that criticisms of her performance on the EOAI Project were racially motivated or based on anything other than good-faith opinions. (Def. 56.1 ¶¶ 89-91; Pl. 56.1 Resp. ¶¶ 89-91.)

Kohn gave plaintiff a written mid-year review prior to her removal from the Enterprise Fund Master project. (Def. 56.1 ¶ 92; Pl. 56.1 Resp. ¶ 92.) The written appraisal contains an electronic signature by Kohn dated September 24 and one from plaintiff dated September 18. (Kohn Aff't Ex. I.) In it, Kohn stated that plaintiff "acted more as a project coordinator than a project manager," and that, as to the Enterprise Fund Master assignment, plaintiff "wasn't understanding" the project's goals. (Def. 56.1 ¶ 93; Pl. 56.1 Resp. ¶ 93.) Kohn informed plaintiff that she was in danger of losing her job. (Def. 56.1 ¶ 94; Pl. 56.1 Resp. ¶ 94.)

Separately, in August 2008, plaintiff was reviewed by her managers and peer-level co-workers; as part of this review, plaintiff also rated her own performance. (Def. 56.1 ¶¶ 71-73; Pl. 56.1 Resp. ¶¶ 71-73.) In certain categories, Kohn gave her higher marks than she gave herself, while the reverse also was true. (Def. 56.1 ¶ 74; Pl. 56.1 Resp. ¶ 74.) The differences between plaintiff's self-administered scores and those given by Kohn were slight. (Def. 56.1 ¶ 74; Pl. 56.1 Resp. ¶ 74.) Plaintiff met with a human resources manager to discuss her reviews. (Def. 56.1 ¶ 77; Pl. 56.1 Resp. ¶ 77.) Plaintiff was advised to speak further with human resources, but never did. (Def. 56.1 ¶¶ 82-83; Pl. 56.1 Resp. ¶¶ 82-83.)

In plaintiff's annual review, Kohn rated her as a four, which denoted "needs development" and was one level lower than her previous reviews of three. (Def. 56.1 ¶ 112; Pl. 56.1 Resp. ¶ 112.) Kohn specifically noted plaintiff's leadership weaknesses. (Def. 56.1 ¶ 113; Pl. 56.1 Resp. ¶ 113.) Typically, an employee with such a rating was placed on an employee improvement plan, and termination would not result unless the performance failed to improve. (Def. 56.1 ¶ 115; Pl. 56.1 Resp. ¶ 115.)

In anticipation of plaintiff's year-end review for 2008, on October 29, Kohn again solicited plaintiff's co-workers for input about her performance. (Def. 56.1 ¶¶ 95-96; Pl. 56.1 Resp. ¶¶ 95-96.) Five individuals responded, and their comments reflect a consensus that plaintiff needed improvement and/or did not meet expectations in several areas; one of the questionnaire's respondents was more positive in his critique. (Def. 56.1 ¶¶ 97-99, 101, 106; Pl. 56.1 Resp. ¶¶ 97-99, 101, 106.) Plaintiff does not assert that her co-workers' views were discriminatory. (Def. 56.1 ¶¶ 104-05; Pl. 56.1 Resp. ¶¶ 104-05.)

On October 30, 2008, Oppenheimer's CEO announced in an e-mail that there would be employee layoffs (or, as defendants characterize it, a "reduction in force") in the near future. (Def. 56.1 ¶ 116; Pl. 56.1 Resp. ¶ 116.) When instructed to recommend an employee for possible termination, Kohn named the plaintiff. (Def. 56.1 ¶¶ 118-19.) Plaintiff and six other project managers ultimately were recommended for termination. (Def. 56.1 ¶¶ 120-22, 126; Pl. 56.1 Resp. ¶¶ 120-22, 126.) Along with 250 other employees, her employment at Oppenheimer ended on January 30, 2009. (Def. 56.1 ¶ 126; Pl. 56.1 Resp. ¶ 126; Schneider Aff't ¶ 5.)

C. Plaintiff's Discussions about Kohn with Human Resources.

In late October 2008, plaintiff contacted HR and complained about Kohn. (Def. 56.1 ¶ 127; Pl. 56.1 Resp. ¶ 127.) The parties disagree as to whether this conversation preceded or followed the October 30 companywide announcement of future layoffs. (Def. 56.1 ¶ 127; Pl. 56.1 Resp. ¶ 127.) On November 5, she again spoke to HR, stating that Kohn constantly criticized her and unfairly removed her from a project. (Def. 56.1 ¶ 128; Pl. 56.1 Resp. ¶ 128.) Plaintiff called Kohn's conduct "illegal discrimination," but did not specify the nature of the alleged discrimination. (Def. 56.1 ¶ 129; Pl. 56.1 Resp. ¶ 129.) Approximately one month later, plaintiff complained in writing to HR, indicating that she had been discriminated against on the basis of gender, race, national origin and religion, and that she was experiencing retaliation. (Def. 56.1 ¶ 132; Pl. 56.1 Resp. ¶ 132.)

D. Plaintiff's Professional Training Opportunities.

As an ongoing training practice, Oppenheimer covered costs for its employees to attend in-house and outside educational courses, provided that the courses were relevant to the employee's professional development. (Def. 56.1 ¶¶ 49-51; Pl. 56.1 Resp. ¶¶ 49-51.) Oppenheimer covered plaintiff's expenses for leadership courses but denied reimbursement for four technology courses, concluding that they were both costly and irrelevant to plaintiff's work responsibilities. (Def. 56.1 ¶¶ 51-59; Pl. 56.1 Resp. ¶¶ 51-59.)


Summary judgment "shall" be granted "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Rule 56(a), Fed. R. Civ. P. It is the initial burden of a movant on a summary judgment motion to come forward with evidence on each material element of his claim or defense, sufficient to demonstrate that he or she is entitled to relief as a matter of law. Vt. Teddy Bear Co. v. 1--800 Beargram Co., 373 F.3d 241, 244 (2d Cir. 2004). In raising a triable issue of fact, the non-movant carries only "a limited burden of production," but nevertheless "must 'demonstrate more than some metaphysical doubt as to the material facts,' and come forward with 'specific facts ...

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