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Benussi v. Ubs Financial Services Inc.

United States District Court, S.D. New York

February 13, 2014



PAUL A. CROTTY, District Judge.

Elena Benussi was employed as a financial advisor by UBS Financial Services Inc. ("UBS") for almost a decade before she was fired in November 2010. She alleges that her termination violated Title VII of the Civil Rights Act of 1964 because UBS terminated her employment after she reported a sexist comment from a co-worker; and the New York State Human Rights Law and New York City Human Rights Law because she disclosed that she is gay. UBS maintains that Benussi was terminated for legitimate and appropriate business reasons, and not because of retaliation or Benussi's sexual orientation. The Court determines that there are genuine disputes of material fact concerning Benussi's termination, which preclude granting UBS's motion for summary judgment.


Elena Benussi was an at-will employee of UBS (or its predecessor entity, PaineWebber) in New York, New York from January 2001 until her termination on November 23, 2010. From December 2008 until her termination, Ms. Benussi worked as a financial advisor at UBS's branch at 1285 Avenue of the Americas ("1285 Branch"), where she was supervised by Branch Manager Kellie Brady. Brady, in turn, was supervised by Complex Director John Decker.

I. Prior Incidents

Prior to being transferred to the 1285 Branch, Benussi had reported to UBS's Human Resources Department ("HR") two incidents of alleged mistreatment by colleagues. She does not seek to recover for these incidents in this action, but they are presented here for context. In 2004, she made a complaint alleging that a colleague had called her a "bitch" in response to her comment that "men do better here on Wall Street... men get better accounts." (Watson Decl. Ex. A at 115-17.) She replied to him that she was "insulted by this word... that should not be called of any woman." ( Id. at 117.)

In 2008, Benussi complained about two related incidents with a supervisor. First, when she came to his office unannounced, he allegedly told her, "I don't know if I want to throw you the hell out of my office or if I want to rip your head off." ( Id. at 119-20.) She testified that she felt this was a "violent threat" and that she was in tears when she called the HR officer to report it. ( Id. at 120.) About a week later, the same supervisor called her into his office to discuss office moves. Benussi alleges that after she stated that she needed some assistance moving her items, he stepped "within a couple inches" of her, "started screaming, " and said "get the hell out of my office." ( Id. at 129-31.) She told HR that she felt that these two encounters with the supervisor "created a hostile work environment for her" and that she "would like to be able to move to another branch." ( Id. Ex. I.) UBS accommodated her request and transferred Benussi to the 1285 Branch under the supervision of Kellie Brady. ( Id. )

II. Plaintiff's Strained Relationship With Her Supervisors at the 1285 Branch

Benussi was happy working at the 1285 Branch with Brady as her supervisor during the period from December 2008 to March 2010. In early 2010, Decker, in consultation with his management team, decided to implement a performance plan to increase the productivity of the financial advisors under his supervision ( i.e., the financial advisors would have to produce more revenue). The parties dispute the details of how the performance plan was to be implemented with respect to Benussi, but Benussi does not make any claims on the basis of that dispute.

Relevant to this case, however, is that a disagreement arose between Benussi and her supervisors over the performance plan, which led to a significant deterioration in the working relationship between them. Even though the goals for other financial advisors were similar, Benussi felt that the goals assigned to her were unfair, and that she was not given sufficient notice of those goals. When Benussi approached Decker to express concerns about the goals, Decker reprimanded Benussi for refusing to communicate with her direct supervisor, Brady. According to Benussi, Decker told her not to make any more complaints, and that "[i]f there's any more complaints, he said, I will bounce you out of my building."[2] (Palmieri Decl. Ex. A at 34-35.) Following this exchange, Brady scheduled weekly "coaching sessions" with Benussi to ensure her progress toward the performance goals.

On May 19, 2010, Benussi expressed concerns to Brady about Brady's personal relationship with a colleague, Todd Cowan. Benussi thought the existence of the relationship was unprofessional and was concerned that Brady might be sharing Benussi's confidential information with Cowan. Brady responded that she had disclosed her relationship in accordance with UBS's policy and that she would not share confidential information with Cowan. During this time period, Gaye Thurston of HR also told Benussi that the relationship between Brady and Cowan had been disclosed and that UBS was satisfied that there was no conflict of interest.

On May 20, Benussi wrote an email to Thurston with a number of complaints about what she viewed as unfair treatment by Brady and Decker, and she memorialized her concerns about the Brady/Cowan relationship. She informed Thurston that she would "not be signing a formal business plan after Memorial Day, " and, in a follow-up email, stated that she would be canceling the coaching sessions. (Watson Decl. Ex. P.) Later the same day, Benussi separately emailed Brady to cancel the coaching sessions and further stated, "I do not want to work for you or any BOM at 1285 and will be discussing my decision with Gaye Thurston." ( Id. ) In a third email that day, Benussi responded to an event invitation from Brady by stating that "[i]t's too late to salvage our work relationship" and "I hope to transfer out to another UBS branch." ( Id. Ex. S.)

After Thurston met with Benussi to discuss her transfer request, Brady and Benussi had a meeting. At that meeting, Brady characterized at least one instance of Benussi's conduct as "insubordinate." Benussi wrote another email to Thurston on May 26 in which she referred to the meeting as "a forum to bully me with insubordination threats, " again complained about the Brady/Cowan relationship, and stated a litany of other complaints that are unrelated to her discrimination claims in this case. ( Id. Ex. R.) Thurston informed Benussi on June 10 that her transfer request was denied.

After the denial, the relationship between Benussi and Brady improved for a time. Benussi expressed a hope to "reset the landscape" with respect to her relationship with her supervisors. ( Id. Ex. T.) Indeed, her emails to Brady in June 2010 reflect a significant change in tone, with Benussi making such compliments as "you're a great coach"; "[y]ou run a great branch and should be very proud of yourself!"; "I've boasted to my colleagues in other branches about how great you've been"; and "[w]ithout any doubt, you're the best!" ( Id. )

The detente was short-lived, however. On Friday, November 5, 2010, Benussi sent Todd Cowan an email to confirm that she would be participating in a "Grow Your Business" meeting that was scheduled for the following Thursday. After receiving an automated "out-of-office" message from Cowan's email account, Benussi sent Cowan another email, this time copying Brady on the email chain: "I understand that you're on vacation and will be back on Tuesday, but want confirmation that I am included for this meeting." ( Id. Ex. U.) Cowan removed Brady from the email chain and responded to Benussi that her attendance was confirmed. Benussi then added Brady back to the email chain and wrote to Cowan:

Thank you and appreciate your response as you been [sic] newly promoted, and have a distinct responsibility to help all FAs regardless of personal obligations. I know it's awkward to have to email you while on vacation, and to copy Kellie as well, as manager, also on vacation, knowing you both return on Tuesday, but your email suggested a venue capacity urgency and you were the RSVP contact as you were on the Alliance Bernstein Masters Program in June.

( Id. ) These emails "infuriated" Brady because she felt that Benussi inappropriately referenced Brady's personal relationship with Cowan, brought up matters that had been resolved, and because Benussi added Brady back to the email chain after Cowan had removed her. ( Id. Ex. T at 222.)

On November 9, the day Brady returned to the office, Benussi wrote Brady an email to complain about Brady's handling of an incident earlier that day, during which Brady was attending to an employee who had fainted in her office. Benussi wrote that when she came in to check on the person's "well being" as a "humanitarian" gesture, she was rudely dismissed from Brady's office by another employee, and that Brady "as the office manager allowed it to happen." ( Id. Ex. V.)

III. Dispute About Events in November 2010 Leading to Plaintiff's Termination

We have now arrived at the key period for the parties' dispute in this case. UBS, on the one hand, contends that the emails and events of November 5 and 9 were the "final straw" that convinced Brady and Decker to terminate Benussi's employment. ( See id. Ex. E at 121; Def.'s Op. Br. 6.) Brady testified that she met with her supervisor, Decker, on November 9 to discuss those events and expressed that "I can't continue to spend this much time managing Elena Benussi; I can't continue to repeat the same things over and over again; I can't continue to have her question and bring up my relationship...." (Watson Decl. Ex. C at 226.) Decker testified that he agreed, that they decided on that day to terminate Benussi's employment, and informed Gaye Thurston of their decision. ( Id. Ex. E at 117, 121.) Thurston also testified that she spoke with Decker and Brady on November 9 about their termination decision. (Palmieri Decl. Ex. D at 214-15.) That decision was not implemented on that day, nor was Benussi advised of the decision on that day.

Accordingly, Benussi disputes that the decision to terminate her was made on November 9. She contends that the termination decision was made later-after she reported a co-worker's offensive remark and disclosed that she is gay. Benussi argues that there is no documentary evidence from this time to support UBS's position that the decision to terminate her employment was made on November 9. (Pl.'s R. 56.1 Resp. ΒΆ 48.) UBS responds that its privilege log shows that Benussi's November 5 emails "were forwarded to legal on November 9." (Def.'s Reply Br. 6.)[3] As set forth below, Benussi also contends that subsequent documents indicate that the decision was made following her disclosures that form the bases of her claims.

During the period between November 9 and Benussi's termination on November 23, several significant events occurred. Renovations at the 1285 Complex required office moves. Benussi had previously rejected Brady's offer to move to the 15th floor. On November 12, she wrote an email to Brady explaining the reason for her objection:

You said I can take have a [sic] office on 15 but can still work with you. I wouldn't want that to change, but may not sit on 15 as I had an unfortunate situation with someone. This email is not a complaint, and will not discuss details, but didn't want you to feel I haven't appreciated your help....
Last year, I had an unprovoked incident with a male colleague, and frankly, prefer to avoid this individual. I was verbally bashed for being an unmarried woman, in front of colleagues, but never said anything because I wanted to make things work at your branch....
I'm still weighing my options, but this is the reason for my ambivalence about a relocation to the 15th Floor, and didn't want you to think I couldn't make a decision, but didn't know how to tell you without revealing details and haven't.... Please don't be concerned about this email; it's in the past, and have moved forward. I have more important items on my agenda than dealing ...

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