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James Nolley v. Swiss Reinsurance America Corporation

March 8, 2012

JAMES NOLLEY,
PLAINTIFF,
v.
SWISS REINSURANCE AMERICA CORPORATION, DEFENDANT.



The opinion of the court was delivered by: Denise Cote, District Judge:

OPINION & ORDER

Plaintiff pro se James Nolley ("Nolley") brings this lawsuit alleging employment discrimination pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000-e et seq. ("Title VII"), and New York State and New York City human rights laws against defendant Swiss Re America Holding Corporation ("Swiss Re"). Nolley alleges that he was discriminated against on the basis of race and that Swiss Re retaliated against him for a complaint of discrimination. Following the completion of discovery, Swiss Re has moved for summary judgment on all claims. For the following reasons, Swiss Re's motion is granted.

Background

The following facts are undisputed or taken in the light most favorable to Nolley, unless otherwise noted. Swiss Re is a major international reinsurer with numerous lines of business including, at all relevant times, a Capital Management and Advisory Division ("CMA"). CMA's human resources personnel operated primarily out of two offices: London and New York.

I. Nolley's Employment Prior to April 2007

In April 2005, Nolley was retained as an independent contractor by CMA's New York office to assist in recruiting. Nolley had fifteen years of professional experience in the human resources field, primarily in the financial services sector. Within approximately one month, Nolley received an offer from J.P. Morgan Chase, at which he had previously worked as a contractor, to return as a permanent employee. As a result, Swiss Re extended an offer of permanent employment to Nolley, which Nolley accepted. On May 23, 2005, Nolley joined CMA's New York human resources department as a Vice President.

From May 2005 to April 2007, Nolley reported directly to Raymond Barbieri ("Barbieri"), Director of Human Resources for CMA-New York. The Director of Human Resources in CMA's London office was Joanna Bardsley ("Bardsley"). Bardsley had interviewed Nolley in connection with his offer of permanent employment. Both Barbieri and Bardsley reported to Don Stellwagen ("Stellwagen"), the New York-based Director of Human Resources for Swiss Re's Financial Services Division.

Nolley's primary responsibility for CMA was recruiting. His position required him to coordinate both with hiring managers in CMA's various divisions (e.g., Operations, Sales, Legal) to ensure hiring goals were met, and with outsider vendors (i.e., headhunting firms) on contract to conduct executive searches. Nolley received generally positive performance reviews from Barbieri in 2005 and 2006. The 2005 performance review described Nolley as "a highly productive individual" and "a strong team player." It noted, however, that Nolley "needs to recognize that not everyone is as quick as he is." Similarly, Nolley's 2006 performance review stated that he had "been instrumental in helping CMA HR reach goals in relation to the parent company's needs," and described Nolley as "[p]rofessional, experienced, and possess[ing] an in depth understanding of the labor market" in which CMA competes. But Barbieri also advised: "In the future I recommend that [Nolley] approach[] these type [sic] of external problems with less of an emotional reaction."

In November 2006, Nolley had a confrontation with Cynthia Jon ("Jon"), a Senior Payroll Accountant in CMA, that prompted Jon to complain to a fellow employee, Michael Santangelo ("Santangelo"), who relayed her complaint to David Assenza ("Assenza"), a CMA Human Resources Manager. According to Assenza's notes of a subsequent conversation with Jon, Jon stated that "this was not the first time [Nolley] chastised her and that there were other occasions where he was very intimidating to her." Jon also told Assenza that Nolley had "been vocal about playing the 'race card' if need be." There is no record of further action in connection with Jon's November 2006 complaint about Nolley.

On April 1, 2007, Santangelo himself had a confrontation with Nolley over a recruitment issue that led Santangelo to e-mail Barbieri, Nolley's direct superior. In his e-mail to Barbieri, Santangelo described Nolley's tone as "aggressive[] (with expletives)". According to Nolley, the tone of the conversation was "regular discourse," although Nolley concedes that "it's possible" he might have cursed at Santangelo.

II. Bardsley Becomes Nolley's Direct Superior.

Between May 2005 and April 2007, Nolley reported directly to Barbieri in New York, while Bardsley supervised human resources functions for CMA's London office. At his deposition, Nolley described his relationship with Bardsley during this period as "professional". For her part, Bardsley had privately expressed concern on at least one occasion to Phil Lotz ("Lotz"), CMA's CEO, about Nolley's interactions with colleagues. In a January 2007 e-mail to Lotz, Bardsley described a telephone conference during which Jon's efforts to obtain information from Nolley were "met with hostility[.]" According to Bardsley, "[a] number of us . . . felt extremely uncomfortable with [Nolley's] style and approach[.]" Bardsley indicated to Lotz that she had shared her observation that Nolley's conduct was "unacceptable" with Barbieri. Nevertheless, Bardsley arranged in late February 2007 for Nolley to visit CMA's London office, indicating in an e-mail to Lotz that she felt "it is important for [Nolley] to see beyond the US and to get a broader focus and understanding of the issues and structure of our London office in the hope that this will strengthen relations between the two departments[,] and meet the rest of our team." At his deposition, Nolley stated that he did visit the London office at Bardsley's behest. According to Nolley, however, he went to London to help implement a recruiting software program, only to learn upon arrival from Bardsley that the implementation would not go ahead as scheduled. Nolley stated that he called Barbieri and asked to return to New York because he believed his time in London would not be productive.

At his deposition, Nolley spoke in general terms about "disjointedness . . . of the HR function between New York and London," stemming in part from parallel operations in both locations. Nolley also testified about differences that he encountered with Bardsley on CMA's diversity hiring policies. According to Nolley, at some point prior to April 2007, he had "a manager who was looking to fill out or to ensure that he didn't run afoul of some diversity issue within the firm" in connection a minority applicant for an open position. Nolley and Bardsley discussed "that issue . . . about hiring an African-American, versus a non-African-American." Nolley testified that Bardsley's perspective was, in essence: "We're all English, and so I don't quite understand . . . sort of how or why that's so important in the United States." At his deposition, Nolley stated that he had found Bardsley's response to be "amazing," and that it had suggested to him evidence of a discriminatory bias.

Barbieri left Swiss Re in late April 2007. As a result, Bardsley was promoted to Head of Human Resources for CMA-Global and assumed responsibility for both New York and London CMA human resources functions. Bardsley thereby became Nolley's direct supervisor despite the fact that Bardsley worked out of CMA's London office.

Shortly before Barbieri's departure and Bardsley's promotion were announced, Bardsley received an e-mail from Barbieri about Nolley. The e-mail, dated April 18, 2007, reads:

When you are here we will need to talk about James. I have been doing some digging and apparently, the perception is not good. Sad to say that James probably brought me down. I wish things turned out differently, like we getting rid of James and putting me in the recruitment spot. Anyhow, I don't think you can move along with him. I have a resume of a really great contractor you may want to consider.

At his deposition, Nolley stated that he had no basis for believing that Barbieri ever made a decision with respect to Nolley's employment that was the product of discriminatory intent.

III. FS Vision and "Sea Changes" at Swiss Re

Bardsley's promotion roughly coincided with the beginning of a major Swiss Re initiative to restructure its financial service offerings. The initiative, referred to as "FS Vision" within Swiss Re, promised significant change in numerous Swiss Re divisions, including human resources. Nolley testified at his deposition that FS Vision augured "sea changes," and that "[t]here was a huge recruitment effort that was . . . going on that probably needed looking after."

Soon after Bardsley's promotion, in early May 2007, Nolley contacted Bardsley to discuss his own role at CMA. Specifically, Nolley sought to "return to more of a generalist role"; in other words, to focus less on recruiting in particular and take on more responsibility in relation to other human resources functions, such as "employee relations . . . training, development." Bardsley solicited further input from Nolley, and Nolley e-mailed Bardsley with a description of the "Generalist" responsibilities he hoped to take on. Bardsley thanked Nolley for his input, and told him that she would take his suggestions under consideration.

The exchange between Nolley and Bardsley over Nolley's role at CMA became more confrontational over the ensuing weeks. According to Nolley, Bardsley did not "share [her] thought process" on the issue with Nolley, and he became concerned that she was "brushing it off." On May 22, Bardsley stated in an e-mail to Nolley, "[A]s I have said a number of times I am very conscious of your desire . . . to move away from recruitment and focus on the areas of interest that you listed and I continue to recognize this as we pull our thoughts together." Bardsley also wrote: "I am happy to try to answer any immediate questions you have but need you to be patient and bear in mind that I don't have all the answers yet." That same day, Bardsley sent an e-mail to Lotz, Stellwagen, and Bob Ratcliffe ("Ratcliffe"), CMA's London-based manager for information technology, detailing what Bardsley described as a hostile telephone conversation with Nolley. The subject of the telephone conversation was Nolley's uncertainty about his role at CMA. In her e-mail, Bardsley stated that Nolley was "undeniably aggressive, confrontational, and rude," and that he "frankly shocked [her] with his outburst." Bardsley also indicated that she had raised her own voice and warned Nolley that she "was not prepared to listen to him being so aggressive and abusive." According to Nolley, the telephone conversation discussed in the e-mail occurred, but he denies adopting an "aggressive" tone.

IV. Hiring of Gordon Cook as New York-Based Manager

In late June 2007, Catherine Cloake ("Cloake"), an assistant to Bardsley and member of CMA human resources' administrative support staff in London, had a confrontation with Nolley while visiting CMA's New York office. In a June 20 e-mail to Bardsley, Cloake described a disagreement with Nolley that resulted in Nolley "ranting at [Cloake] in a [sic] aggressive manner" within earshot of employees in different departments. According to Nolley, the disagreement arose because Cloake had asked Nolley to complete aspects of a project that were Cloake's responsibility. Nolley denies yelling at Cloake.

According to Bardsley, Cloake's June 20 e-mail prompted Bardsley to reconsider her decision to manage human resources in both London and New York on her own. She initiated a conversation with Stellwagen about hiring a manager to replace Barbieri in New York. Stellwagen concurred after reading Cloake's June 20 e-mail, stating in a June 21 e-mail to Bardsley that "we must seriously consider the need for leadership here . . . . Given James's style, someone has to be in place who's strong enough to keep him in check, or, alternatively, we decide he should move on."

Bardsley then contacted Gordon Cook ("Cook"), the contractor to whom Barbieri had referred in his April 18 e-mail, about joining CMA in the temporary position of Interim Head of CMA -- New York Human Resources. The position would report directly to Bardsley, and would oversee the work of CMA's New York-based human resources employees, including Nolley. CMA neither posted the position's availability nor informed current employees, including Nolley, of its existence. When contacted by Bardsley, Cook had approximately 20 years of experience in the human resources field, including several stints in human resources management. In a June 28 e-mail to Lotz, Bardsley stated: "I would like Gordon to be my 'point person' in NY. I would like to take him on a contract basis until the end of the year . . . . As you know he has very relevant experience that I feel would be of extreme value to the FS Vision project." In the same e-mail and referring to Nolley, Bardsley stated:

In the spirit of complete transparency I am anticipating a negative reaction from James on this as I am sure he will feel that he is able to take on this role[.] [H]owever my experience to date has not given me a positive impression of his ability to be a true team player; he appears to be resentful of the changes I have made and the structure we are building[.]

[H]owever I will continue to work on this.

In early July, Bardsley informed Nolley that she had decided to hire Cook as the interim manager in charge of human resources operations and personnel in CMA's New York office.

According to Nolley, he told Bardsley that he wished he had known about the position and had an opportunity to apply; Bardsley indicated that the Cook hire was only an interim decision, and that no firm decisions had been made about long-term positions and responsibilities. In a July 6 e-mail to Lotz and Stellwagen, Bardsley described Nolley's reaction to the news as "extremely disappointing." According to Bardsley's e-mail, Nolley expressed disappointment that he had not been told about the Cook hire earlier, and annoyance that he would be reporting to a contract employee. Stellwagen responded to Bardsley's e-mail by indicating that, "James has an important job as recruiting will only intensify. . . . As Gordon is in a temp role, James has the opportunity to fill that role. . . . He should do his job and accept the decision we made. If he chooses not to he is effectively resigning." Stellwagen also suggested that he and Bardsley contact Erika Ozer ("Ozer"), a member of Swiss Re's legal department, about Nolley's reaction to the Cook hire. Stellwagen guessed that Ozer "would suggest that we give [Nolley] a memo defining his role and our expectations."

V. July 2007: Repeated Nolley-Bardsley Confrontations

Over the next several days, members of the CMA human resources team dealt with a situation in which a job candidate to whom an offer had been extended had subsequently been charged with a misdemeanor. Over the course of an exchange of several e-mails, Bardsley repeatedly asked Nolley for more details about the nature of the charges. Nolley provided the details. On July 9, Nolley forwarded the exchange to Stellwagen and asked to speak with him. According to Nolley, "Having been nothing but supportive I am met consistently with this sort of response. When I ask for clarification, I am only told there are no answers, opinions or thoughts that can be shared. Although I realize this is a stressful time, I do require some level of clarity on how I can participate in building this new organization."

Also on July 9, Bardsley e-mailed Nolley a document entitled "James Nolley: Clarification of Role and Responsibilities/2007 Goals." The document included a bullet-point list of responsibilities associated with Nolley's position, most focusing on recruitment. In her e-mail to Nolley, Bardsley described the list as being built "around both your job as I see it today as well as factoring in where applicable the issues you highlighted as areas of interest when you wrote to me in May." After Bardsley sent Nolley the document, the two spoke over the telephone. At his deposition, Nolley was asked about the document and subsequent conversation with Bardsley and responded, "Was I fine with this [document]? Yes, it as [sic] represents those responsibilities as accompany a recruiter." In a July 9 e-mail to Stellwagen, Lotz, and Ratcliffe, Bardsley stated that during the conversation, Nolley was "hostile and monosyllabic," and criticized her leadership style. Stellwagen responded: "I will not accept his hostile behavior toward you and he needs to know that such behavior will result in his termination."

On or around July 11, Nolley and Stellwagen had a one-onone meeting. Nolley claims that during this conversation he told Stellwagen that he believed Bardsley was both "hostile" and "racially biased." In an e-mail to Bardsley sent on July 11, Stellwagen characterized his conversation with Nolley as "pleasant and . . . direct." According to Stellwagen, he and Nolley discussed Nolley's concern that Nolley was out of the loop on issues pertaining to FS Vision. Stellwagen stated that he told Nolley that Nolley "must accept that there will be [meetings] where's [sic] he's excluded and other times he's in and others aren't." Stellwagen also told Bardsley that Nolley's role at CMA had been discussed, and Stellwagen suggested that he, Bardsley, and Nolley meet to discuss Nolley's role and "clear the air". Finally, Stellwagen stated that he and Nolley discussed the importance of Nolley working hard to support the contractors CMA had recently brought on (presumably including Cook), and how Nolley could demonstrate that he was "capable of replacing either of them." When Bardsley asked whether she needed to be specifically aware of any other comments Nolley had made about her, Stellwagen responded that "[t]here ...


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