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Joseph Dimino v. Hsbc Bank

April 11, 2012


Before the Court is a motion for summary judgment brought by Defendant HSBC Bank, USA N.A. ("HSBC"). Relying on this Court's diversity jurisdiction, Plaintiff Joseph Dimino ("Dimino") asserts claims of gender discrimination in violation of New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law §§ 290 et seq. and New York City Human Rights Law ("NYCHRL"), Admin. Code §§ 8-101 et seq., retaliation in violation of NYSHRL, N.Y. Exec. Law § 296 and NYCHRL, Admin. Code §§ 8-107(c) and 15(a), and breach of an implied-in-law contract. For the reasons set forth below, HSBC's motion for summary judgment is granted in part and denied in part.



Dimino began his employment with HSBC in June of 2006 as a sales assistant. HSBC 56.1 ¶ 1; Dimino 56.1 ¶ 1. In July 2007, Dimino applied for and was accepted into the Retail Management Trainee ("RMT") program. HSBC 56.1 ¶ 2; Dimino 56.1 ¶ 2. Dimino completed the RMT program in June 2008. HSBC 56.1 ¶ 10; Dimino 56.1 ¶ 10. After the RMT program, Dimino was not given a management position, but was assigned a temporary position on the At-Risk team. HSBC 56.1 ¶ 39. In November 2008, Dimino completed this assignment and was assigned to the 42nd Street HSBC Branch in Manhattan, ultimately serving as a Business Relationship Banker ("BRB") according to HSBC. HSBC 56.1 ¶¶ 45-55. Dimino alleges that the failure to place him in a management position after he completed the RMT program was due to gender discrimination in violation of NYSHRL and NYCHRL. Compl. ¶¶ 12-15. HSBC responds that Dimino was not treated differently than the other members of the RMT program, that he had a poor attitude and that he was disruptive throughout the program. HSBC 56.1 ¶¶ 13, 37-46.

In July 2009, one of Dimino's supervisors met with Dimino and informed him that the performance objectives section of his 2009 performance review had not been completed and needed to be completed. HSBC 56.1 ¶ 59; Dimino 56.1 ¶ 59. Dimino objected to the BRB position listed on his performance objectives and refused to sign the objectives. HSBC 56.1 ¶¶ 74-88; Dimino 56.1 ¶¶ 74-88. Dimino asserts that HSBC breached an implied-in-law contract by asking him to sign his performance objectives, which he believed was unethical. Compl. ¶¶ 20-21. HSBC asserts that there is no such cause of action. HSBC Mem. 25.

Dimino filed a lawsuit in New York County State Supreme Court in September 2009 accusing HSBC of gender discrimination. Dimino Opp. 12. In January 2010, Peter Hutter ("Hutter") of HSBC's Human Resources Department, gave Dimino until January 18, 2010 to accept his performance objectives and asked him to stop making negative comments about his on-going legal action. HSBC 56.1 Ex. T, 1/18/2010 Email from Hutter to Dimino. HSBC terminated Dimino on January 25, 2010. HSBC 56.1 ¶ 103. Dimino alleges that this termination was in retaliation for filing his gender discrimination suit in New York State Court. Compl. ¶¶ 16-19. HSBC argues that the termination was a lawful response to Dimino's refusal to accept his performance objectives and his disruptive behavior. HSBC 56.1 ¶ 103.


A. Legal Standard

Summary judgment shall be granted in favor of a movant where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). A court must resolve all ambiguities and draw all inferences against the moving party. LaSalle Bank Nat'l Ass'n v. Nomura Asset Capital Corp., 424 F.3d 195, 205 (2d Cir. 2005). The movant bears the burden of establishing the absence of any genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). A material fact "might affect the outcome of the suit under the governing law," and an issue of fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001) (internal citation omitted). "The party against whom summary judgment is sought . . . 'must do more than simply show that there is some metaphysical doubt as to the material facts . . . . [T]he nonmoving party must come forward with specific facts showing that there is a genuine issue for trial.' " Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)).

B. Discrimination Claims

Claims of gender discrimination under NYSHRL and NYCHRL are analyzed under the three-step burden-shifting analysis for Title VII claims established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Weinstock v. Columbia Univ., 224 F.3d 33, 42 n.1 (2d Cir. 2000).

1. Prima Facie Case

Establishment of a prima facie case of discrimination, while a low hurdle for plaintiffs does require some showing that: (1) plaintiff is a member of a protected class; (2) plaintiff is qualified for the position; (3) plaintiff suffered an adverse employment action; and (4) the circumstances give rise to an inference of discrimination. McDonnell, 411 U.S. at 802. There is no dispute that Dimino is a member of a protected class (males). There are disputed issues of fact as to each of the other factors necessary to make out a prima facie case.*fn2

First, there is a genuine issue of material fact regarding whether Dimino was qualified for a managerial position. Dimino presents evidence suggesting that he was qualified, including evidence that midway through the program, he was ranked No. 1 in the Downstate RMT class, Dimino 56.1 Ex. 8, 1/11/2008 Rankings Email, which was based on his course exams and his rotation evaluations. Dimino 56.1 Ex. 45, Boykin Tr. 105:25-106:6. Dimino also offers several examples of positive feedback and evaluations from his supervisors at HSBC. See, e.g., HSBC 56.1 Ex. OO, Performance Evaluation (referring to Dimino as a "Team player" who was "flexible, willing to work outside of his rotation"); Dimino 56.1 Ex. 12, 1/30/2008 Elko Email (noting that plaintiff had strong relationships with clients, was diligent with paperwork, had a good knowledge of internal policies and displayed good initiative on how the department could run more effectively); Dimino 56.1 Ex. 22, 5/16/2008 RMT Trainee Evaluation Worksheet (rating Dimino a level 3 for "[c]onsistently achiev[ing] the performance level required by the Business"). HSBC puts forth evidence that Dimino was not qualified for a managerial position. See HSBC 56.1 Ex. N, 11/2007-2/2008 Performance Discussions (describing performance discussions about Dimino indicating that his attitude was "very poor"); HSBC 56.1 Ex. OO, Performance Evaluation ("Joe was exhibiting negative attitudes regarding his position in the Bank, and was sharing this with several colleagues in the branch."); HSBC 56.1 Ex. V, 2/8/2008 Costanza Email (describing Dimino's "disappointing" final presentation, which said it was "awful" to work at HSBC and made "very negative comments regarding the company").

There is also a genuine issue of material fact as to whether Dimino suffered an adverse employment action. Dimino argues that he was subject to an adverse employment action because he was not given a management position after his participation in the RMT Program. Dimino 56.1 Ex. 31, 8/13/2009 Dimino Letter. HSBC responds that the RMT Program did ...

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