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Fontecchio v. ABC Corp.

United States District Court, S.D. New York

January 23, 2015

ABC CORP., s/h/a HSBC BANK USA, N.A., et al., Defendants.

Karen L. Zdanis, Nanuet, New York

Michael David Diederich, Jr., Stony Point, New York Counsel for Plaintiff

Vincent Avallone, C. Bryan Cantrell, K&L Gates LLP, Newark, New Jersey Counsel for Defendants.


CATHY SEIBEL, District Judge.

Before the Court is Defendants' Motion for Summary Judgment. (Doc. 49.) For the following reasons, Defendants' Motion is granted.


The following facts are set forth based on Defendants' Local Civil Rule 56.1 statement and Plaintiff's response, Plaintiff's Local Civil Rule 56.1 statement and Defendants' response, and the parties' supporting materials, and are undisputed except as noted.

Plaintiff was employed by Defendant HSBC Bank USA, N.A. ("HSBC") for twenty-nine years before her employment ended in July of 2011, when she was forty-seven years old. (P's Response to 56.1 ¶ 1.)[1] Plaintiff worked as a branch manager for several years, but from March 2009 until June 13, 2011, she was a market manager. ( Id. ¶ 2.) As a market manager, Plaintiff supervised the branch managers of nine retail bank branches in Rockland County, New York. ( Id. ) Plaintiff reported to Defendant Nina Tyzik, District Executive for the Empire District, a woman who was fifty-eight years old in July 2011. ( Id. ¶ 3.) Tyzik reported to Regional President Andrew Ireland. ( Id. )

In November 2010, HSBC created two more market manager positions in the Empire District. ( Id. ¶ 39.) Christopher Gomez and Lulzim Hoxha, who were both branch managers reporting to Plaintiff, were selected to fill the new market manager positions. ( Id. ) For the year 2009, Gomez had been selected by Tyzik as "Manager of the Year" and Hoxha had been selected by Tyzik as "Rookie of the Year." ( Id. ¶ 40.) Plaintiff wrote in an email to Tyzik that she agreed with those decisions and would have recommended them. ( Id. )

In June 2011, HSBC reorganized its retail bank management structure nationwide. ( Id. ¶ 50.) After the restructure, the district executive, market manager, and premier market leader[2] positions were eliminated and two new positions - district director and retail banking sales manager ("RBSM") - absorbed the responsibilities of the old positions. ( Id. ¶ 51.)[3] In the Upstate New York Region, four district executive, four premier market leader, and fourteen market manager positions were replaced by two district director and fifteen RBSM positions. ( Id. ¶ 52.)

The new district directors and RBSMs were selected by a group of four regional presidents, including Ireland. ( Id. ¶ 53); (Ds' Response to 56.1 ¶ 47).[4] Ireland claims that he ranked Plaintiff lower than Gomez, Hoxha, and Niall Lepper ("Lepper"), a premier market leader, for an RBSM position because he was not confident that she would be as effective a sales coach or manager. (Ireland Decl. ¶ 11.)[5] He felt that given the increased responsibility of district directors after the restructuring, RBSMs would need strong leadership, accountability, and coaching skills. ( Id. ) While he was confident Plaintiff had strong skills in retail banking operations, he questioned her coaching and leadership skills. ( Id. ) Gomez, Hoxha, and Lepper were selected to be RBSMs and Plaintiff was not. ( See P's Response to 56.1 ¶ 57); (P's Decl. ¶ 171). Neither the age nor gender of any of the candidates were discussed during the meeting. (P's Response to 56.1 ¶ 62.)

Defendants assert that Tyzik did not participate in the selection of the district directors or RBSMs and that Ireland did not speak to Tyzik before the meeting about who to select as an RBSM. ( Id. ¶ 59.) Defendants also assert that the regional presidents agreed they would select the RBSMs without input from anyone who might become a district director, because the prospective district directors were being evaluated by the same group as part of the same selection process. ( Id. ¶ 60.) Thus, according to Defendants, Tyzik was never informed of the meeting. ( Id. )[6]

Ireland did not ask about or review any documents in preparation for selecting the RBSMs. ( Id. ¶ 61.) Instead, he made his assessments based on his own interactions with the candidates. ( Id. ) Ireland observed Plaintiff at a meeting on January 12, 2011. ( Id. ) The meeting was attended by Plaintiff, Ireland, Tyzik, Hoxha, Gomez, and Lepper. ( Id. ¶ 47.) Defendants assert, and Plaintiff denies, that at the meeting Ireland asked each manager to give a presentation about the "movable middle" - middle-of-the-road performers who would benefit from extra management. ( Id. ¶¶ 46-47.) Plaintiff testified at her deposition, however, that she and the others each made a presentation at the meeting. (Avallone Decl. Ex. A ("P's Dep.") at 198:14-18.)[7] Ireland claims he believed Plaintiff's presentation was poor and showed a lack of knowledge of her market and that she did not have a plan to improve the "movable middle." (Ireland Decl. ¶ 6.) He believed Gomez, Hoxha, and Lepper presented well. ( Id. ¶ 7.)

Ireland communicated with Plaintiff via email on two occasions. (P's Response to 56.1 ¶¶ 29, 31.) Plaintiff disputes whether these emails were "coaching" opportunities or constituted feedback on Plaintiff's performance. ( Id. ¶¶ 29-31.) Ireland never had a one-on-one meeting with Plaintiff before the RBSM decisions were made. ( See Ds' Response to 56.1 ¶ 16.) Nor did Ireland ever directly supervise Plaintiff or the other RBSM candidates. ( Id. ¶ 49.) He remembered meeting with Gomez and Hoxha on one occasion each. ( Id. ¶ 54.)

On June 13, 2011, Ireland sent Plaintiff an electronic meeting invitation with the title "Mkt ck in." ( Id. ¶ 66.) The invitation stated that Ireland "[w]ant[ed] to catch up for 30 mins [ sic ]." ( Id. ) The actual purpose of the meeting was to discuss the demise of the market manager role. ( Id. ¶ 67.) At the meeting, Ireland told Plaintiff the market manager position was being eliminated bank-wide, effective immediately. ( Id. ¶ 68.) After the meeting, Plaintiff met with an employee relations consultant, who gave Plaintiff an "Employee Package" containing information on severance benefits. ( Id. ¶ 70.) Soon after, Tyzik called Gomez and Hoxha, who had been scheduled for similar meetings, to inform them that their meetings were cancelled and their jobs were "safe." (Ds' Response to 56.1 ¶ 40.) On June 27, 2011, Plaintiff received a personalized severance agreement from HSBC. (P's Response to 56.1 ¶ 74.) The agreement is dated June 14, 2011. (Avallone Decl. Ex. FF.)

Two or three days after Plaintiff's meeting with Ireland, Tyzik informed Plaintiff that there was an opening for a branch manager position at the Highland Falls branch, at the same salary Plaintiff had been receiving. (P's Response to 56.1 ¶ 72.) Plaintiff applied for the position on June 17, 2011. ( Id. ) On June 29, 2011, HSBC generated an offer for Plaintiff of the Highland Falls branch manager position. ( Id. ¶ 76.) But on the same day, before the offer was conveyed to her, Plaintiff withdrew her application, in part because she was offended that a notice she had received, pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626(f), indicated that employees had been chosen for the reduction in force based on skill set and performance. ( Id . ¶¶ 74-77.) Plaintiff's termination took effect July 14, 2011, thirty days after she was informed that her market manager position had been eliminated. ( Id. ¶ 78.) Plaintiff accepted a job at Key Bank, a competitor of HSBC, on August 9, 2011. ( Id. ¶ 73.) She had applied for that job on June 21, 2011. ( Id. )

During Plaintiff's employment with HSBC, Tyzik sometimes referred to female employees as "girls, " saying, "You go girl!" ( Id. ¶ 83.) Plaintiff claims Tyzik referred to a male colleague as her "work husband, " and told employees that she had "moles" in the human resources department. ( Id. ¶¶ 89-90.) Plaintiff also alleges that Tyzik referred to her variously as "old school, " "older, " "too nice, " and "motherly, " and told her to be "more like the boys." (P's Decl. ¶¶ 12, 15, 17.) Plaintiff also alleges that Tyzik expressed dislike toward another female employee, Denise Slettene. (P's Response to 56.1 ¶ 94.) Plaintiff told Tyzik she did not agree with putting Slettene on probation. ( Id. ¶ 95.)

After filing claims with the New York State Division of Human Rights, (Avallone Decl. Exs. KK, NN), and obtaining a right-to-sue letter from the Equal Employment Opportunity Commission, ( Id. Ex. OO), Plaintiff filed this action on September 14, 2012, (Doc. 1). In her Second Amended Complaint, Plaintiff alleged disparate treatment, hostile work environment, and retaliation in violation of the New York State Human Rights Law ("NYSHRL") against HSBC and Tyzik, and disparate treatment, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the ADEA, and the Employee Retirement Income Security Act ("ERISA") against HSBC. (Doc. 10.) I dismissed Plaintiff's ERISA and federal retaliation claims, ( see Doc. 31), and, after discovery, this motion followed.


A. Legal Standards

1. Summary Judgment

Summary judgment is appropriate when "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." Fed.R.Civ.P. 56(a). "[T]he dispute about a material fact is genuine'... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it "might affect the outcome of the suit under the governing law.... Factual disputes that are irrelevant or unnecessary will not be counted." Id. On a motion for summary judgment, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Id. at 255. The movant bears the initial burden of demonstrating the absence of a genuine issue of material fact, and, if satisfied, the burden then shifts to the non-movant to present evidence sufficient to satisfy every element of the claim. Holcomb v. Iona Coll., 521 F.3d 130, 137 (2d Cir. 2008) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986)). "The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [non-movant]." Anderson, 477 U.S. at 252. Moreover, the non-movant "must do more than simply show that there is some metaphysical doubt as to the material facts, " Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986), and he "may not rely on conclusory allegations or unsubstantiated speculation, " Fujitsu Ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (internal quotation marks omitted).

"A party asserting that a fact cannot be or is genuinely disputed must support the assertion by... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials...." Fed.R.Civ.P. 56(c)(1)(A). Where, as here, affidavits are used to support or oppose the motion, it "must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant... is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4); see Major League Baseball Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008). In the event a party "fails to properly address another party's assertion of fact as required by Rule 56(c), the court may, " among other things, "consider the fact undisputed for purposes of the motion" or "grant summary judgment if the motion and supporting materials - including the facts considered undisputed - show that the movant is entitled to it." Fed.R.Civ.P. 56(e)(2), (3).

2. Discrimination under Title VII, ADEA, and NYSHRL

Title VII, ADEA, and NYSHRL discrimination claims are analyzed pursuant to the burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 807 (1973), and its progeny. See, e.g., Dixon v. Int'l Fed'n of Accountants, 416 F.Appx. 107, 109 (2d Cir. 2011) (summary order) (applying framework to Title VII, ADEA, and NYSHRL claims); see also Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010) (notwithstanding Supreme Court's decision in Gross v. FBL Fin. Servs., Inc., 557 U.S. 167 (2009), this Circuit has continued to apply McDonnell Douglas burden-shifting framework to ADEA claims); Mattera v. JPMorgan Chase Corp., 740 F.Supp.2d 561, 570-71 (S.D.N.Y. 2010) (applying McDonnell Douglas burden-shifting framework to ADEA claims after Gross ). Under this framework, a plaintiff bears the initial burden of establishing a prima facie case of discrimination. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000). At the prima facie stage, the burden of proof is minimal. See id. To make out a prima facie case of discrimination, a plaintiff must show that, "(1) [she] was within the protected class; (2) [she] was qualified for the position; (3) [she] was subject to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination." Leibowitz v. Cornell Univ., 584 F.3d 487, 498 (2d Cir. 2009), superseded by regulation on other grounds as stated in Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 108 (2d Cir. 2013); see Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 123 (2d Cir. 2004); Slattery v. Swiss Reinsurance Am. Corp., 248 F.3d 87, 91 (2d Cir. 2001); Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000); Mattera v. JPMorgan Chase Corp., 740 F.Supp.2d 561, 571 (S.D.N.Y. 2010).

Once a prima facie case is established, "a rebuttable presumption of discrimination arises" and the burden of production shifts to the defendant "to articulate a legitimate, nondiscriminatory reason" for the adverse employment action. Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). "[T]he defendant must clearly set forth, through the introduction of admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a finding that unlawful discrimination was not the cause of the employment action." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (emphasis and alteration in original) (internal quotation marks omitted).

Once the defendant proffers a legitimate, non-discriminatory reason for the challenged employment action, the presumption drops away, and the plaintiff must prove that the reason offered by the defendant was not its true reason but rather a pretext for unlawful discrimination. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000); Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001); Slattery, 248 F.3d at 93. The plaintiff must produce "sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and that more likely than not discrimination was the real reason for the employment action." Weinstock, 224 F.3d at 42 (alterations and internal quotation marks omitted). "To get to the jury, it is not enough to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination.'" Id. (alterations omitted) (quoting St. Mary's Honor Ctr., 509 U.S. at 519). "In short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination." Id. The ultimate burden of persuasion remains with the plaintiff to show that the defendant intentionally discriminated. See Reeves, 530 U.S. at 143.

Under the ADEA, the final stage is different. The plaintiff must show not only that the defendant discriminated on the basis of age, but also that age discrimination was the "but-for" cause of the adverse action, and not merely one of the motivating factors. Gross, 557 U.S. at 180; accord Gorzynski, 596 F.3d at 106.

B. Disparate Treatment Claims

Because the McDonnell Douglas framework governs Plaintiff's Title VII, ADEA, and NYSHRL disparate treatment claims, and because the evidence is largely the same with respect to both age and gender, I will address the claims together.

1. Prima Facie Case

Defendants concede that Plaintiff satisfies elements (1) and (2) of the prima facie case: she is a member of a protected class and her job performance was satisfactory. They argue she has not shown an adverse employment action or circumstances supporting an inference of discrimination.

a. Adverse Employment Action

Plaintiff has created an issue of fact as to the adverse action element through evidence that her employment was terminated. See, e.g., Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008) (noting "termination of employment" is an adverse action).[8]

Defendants argue that Plaintiff was not, in fact, terminated, but instead was "informed that the Market Manager position was being eliminated... [and] encouraged to apply for open positions." (Memorandum of Law in Support of Defendants' Motion for Summary Judgment ("Ds' Mem."), (Doc. 50), at 5.) Under Defendants' version, Plaintiff chose to end her employment by withdrawing her application for the Highland Falls Branch Manager position as it was about to be offered to her. Id. But a jury would not necessarily have to accept that interpretation. Whether Plaintiff had the opportunity to apply for a new position or not, the undisputed facts are that Plaintiff was informed by Ireland that her position was being eliminated bank-wide, effective immediately. (P's Response to 56.1 ¶ 68.) She was passed over for the new but comparable position her fellow market managers - whose jobs were "safe, " (Ds' Response to 56.1 ¶ 40) - assumed. After the meeting, she was given an "Employee Package" containing information on severance benefits and other information for terminated employees. (Avallone Decl. Ex. BB.) The next day, HSBC prepared a proposed separation agreement, which states, "Your employment has been terminated, effective 07/13/2011, " and bears an attached notice - required under the ADEA, see 29 U.S.C. § 626(f) - informing Plaintiff she had "been selected for the reduction in force due to business reorganization" and listing the ages of the other "[e]mployees in [Plaintiff's] job classification or department who are being laid off, " (Avallone Decl. Ex. FF). It was not until days later that Plaintiff learned about the possibility of applying for another position, and Defendants have made no assertion that Plaintiff was guaranteed to be offered any position for which she applied. Plaintiff's decision to pursue or not pursue a different position with HSBC would obviously go to damages, but does not necessarily mean she suffered no adverse action. A jury could conclude that Defendants' attempt to separate the "elimination" of Plaintiff's position from the "termination" of her employment amounts to a distinction without a difference. See Leibowitz, 584 F.3d at 501 ("[W]hether plaintiff was laid off' or terminated, ' or her employment was not renewed'... she suffered an adverse employment action because she was denied the requested continued employment, regardless of the label."); Elliott v. British Tourist Auth., 172 F.Supp.2d 395, 397, 400 (S.D.N.Y. 2001) (employee laid off due to budget cuts was terminated for ADEA purposes notwithstanding that former employer offered him ongoing consultancy contract with company), aff'd, 40 F.Appx. 629 (2d Cir. 2002).[9]

b. Inference of Discrimination

Plaintiff argues that an inference of discrimination is established by virtue of the fact that she was replaced by younger men. (P's Mem. 12) (citing, e.g., O'Connor v. Consol. Coin Caterers Corp., 517 U.S. 308, 313 (1996)). Plaintiff was not replaced per se, because her position was eliminated. But courts looking to a plaintiff's replacement as evidence of discrimination focus on the transfer of the plaintiff's job responsibilities, not assumption of his or her title. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 135 (2d Cir. 2000) (finding inference of discrimination where plaintiff's "duties were transferred in part to [a co-worker 18 years younger] and his remaining duties were given to [a co-worker 25 years younger]"); Montana v. First Fed. Sav. & Loan Ass'n of Rochester, 869 F.2d 100, 105 (2d Cir. 1989) (finding inference of discrimination where "the majority of [plaintiff's] responsibilities were not eliminated, but were transferred to a twenty-six year old overworked coworker"). Plaintiff has produced evidence that the majority of the responsibilities of the market manager position were transferred to the RBSM position after the restructuring, ( see Zdanis Decl. Exs. 36 (describing market manager role), 37 (describing RBSM role)), and that the people assuming RBSM roles in Plaintiff's former geographical area were Gomez, Hoxha, and Lepper, ( see id. Ex. 1), who are males and substantially younger than she. This is sufficient to meet the minimal burden of supporting an inference of age and gender discrimination at the prima facie stage. See D'Cunha v. Genovese/Eckerd Corp., 479 F.3d 193, 195 (2d Cir. 2007) (age difference of eight years between plaintiff and favored candidate sufficient to support inference of age discrimination); Zimmermann v. Associates First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) ("mere fact that a plaintiff was replaced by someone outside the protected class" sufficient to infer gender discrimination).

2. Defendants' Non-discriminatory Reason

Defendants have met their burden of showing a legitimate, non-discriminatory reason for terminating Plaintiff. They assert that after the restructuring

[t]he goal was to put greater emphasis on the investment, insurance, and mortgage business lines and consolidate those business lines with the banking and branch operations roles previously managed by the District Executive and Market Manager positions.... While Mr. Ireland was supportive of Fontecchio being offered an RBSM position, he did not rank her as high as others who were offered the position because even though he was confident in Fontecchio's skills in retail bank operations, he was not as confident in Fontecchio's sales coaching and leadership skills. Mr. Ireland reasoned that since Tyzik would be running a much larger geographical area as a District Director... she would need RBSMs with strong leadership, accountability, and coaching skills.

(D's Mem. 15-16) (citations omitted).[10]

3. Pretext

Plaintiff has failed to produce evidence sufficient to support a finding that Defendants' stated reasons are false or that discrimination was the true reason for her termination. As an initial matter, the allegedly discriminatory statements Plaintiff attributes to Tyzik - that Plaintiff had been "around forever;" was "older, " "mothering, " "motherly, " "old school, " and "too nice;" had "feminine qualities;" was "not winning" in regards to "longevity", and the like - are insufficient because Plaintiff has produced no evidence that Tyzik was involved in the selection of RBSMs or that the statements were related to that process. See, e.g., Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring) ("statements by nondecisionmakers, or statements by decisionmakers unrelated to the decisional process itself" cannot "satisfy the plaintiff's burden" to establish inference of discrimination); Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007) ("[R]emarks made by someone other than the person who made the decision adversely affecting the plaintiff may have little tendency to show that the decision-maker was motivated by the discriminatory sentiment expressed in the remark."); Ayala-Gerena v. Bristol Myers-Squibb Co., 95 F.3d 86, 97 (1st Cir. 1996) (plaintiffs failed to establish discriminatory animus in part because they could not show that employees who made offensive comments "were decisionmakers who made the comments in connection with the decisional process").

While Plaintiff denies Defendants' assertions that "Tyzik did not participate in the selection" of RBSMs, that Ireland did not speak with her about recommending RBSMs, and that Tyzik was not even informed that the meetings were taking place, she offers no contrary evidence. ( See P's Response to 56.1 ¶¶ 59, 60 (citing only ¶¶ 47-56 of Plaintiff's counterstatement of facts); P's Counter-Statement ¶¶ 47-56 (the cited paragraphs, which do not mention any participation by Tyzik in the RBSM decisions)). The only affirmative evidence she offers even arguably suggesting any influence on Tyzik's part is an email from Tyzik to Ireland dated February 17, 2011 - four months before the decision meeting - saying that Plaintiff was Tyzik's "weakest link" in terms of Plaintiff's sense of urgency with respect to expectations for those she managed. (P's Counter-Statement ¶ 55.) But there is no evidence (and Plaintiff does not argue) that Ireland relied on that email in making the RBSM decisions, nor does that email, which contains no reference to Plaintiff's age or gender, cast doubt on the credibility of Defendants' explanation.[11] See, e.g., Price Waterhouse 490 U.S. at 277 (O'Connor, J., concurring) (statements "unrelated to the decisional process" do not establish inference of discrimination); Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 150 (2d Cir. 2010) (affirming evidentiary ruling and stating that comments "unrelated to the decision-making process" are "at best, only marginally relevant" to discrimination claim); Tomassi, 478 F.3d at 115 ("[T]he more remote and oblique the remarks are in relation to the employer's adverse action, the less they prove that the action was motivated by discrimination."); Spratt v. Verizon Commc'ns Inc., No. 11-CV-273, 2014 WL 4704705, at *8 (S.D.N.Y. Sept. 17, 2014) (plaintiff failed to show discriminatory intent where "temporal isolation" of "troubling" remarks by supervisor was "further compounded by the absence of evidence in the record showing any apparent relationship between the remarks and the decisionmaking process that led to Plaintiffs' [ sic ] termination.").[12] In short, Defendants have pointed to an absence of evidence showing that Tyzik influenced the termination decision and have offered affirmative evidence that she did not. Plaintiff has not, in response, pointed to evidence sufficient to create a fact issue on the point. See Anderson, 477 U.S. at 252; Holcomb, 521 F.3d at 137.

The majority of Plaintiff's remaining argument focuses on the lack of objective criteria used by Ireland in the decision-making process. She argues the decision meeting was "a sham process designed to disguise discriminatory intent" because "[n]o reasonable person will find plausible Mr. Ireland's testimony that he used so little information to make such important personnel actions, " and "the only facts that Mr. Ireland had were that Plaintiff is female and much younger than the other candidates, " concluding that Ireland's explanation for the RBSM decision is "simply preposterous." (P's Mem. 16, 21, 22.) Plaintiff also argues that she was more qualified for an RBSM position than the two men chosen, based on objective factors.

The Second Circuit has noted that "there is nothing unlawful about an employer's basing its hiring decision on subjective criteria, such as the impression an individual makes during an interview... [but] an employer may not use wholly subjective and unarticulated standards to judge employee performance for purposes of promotion." Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 104 (2d Cir. 2001) (internal quotation marks and alteration omitted). An "employer's explanation of its reasons must be clear and specific in order to afford the employee a full and fair opportunity to demonstrate pretext." Id. at 105 (internal quotation marks omitted). "Where an employer's explanation, offered in clear and specific terms, is reasonably attributable to an honest even though partially subjective evaluation of... qualifications, no inference of discrimination can be drawn." Id. (internal quotation marks omitted).

Although Plaintiff has adduced evidence that she at times outperformed her male counterparts (and indeed at times all her counterparts) on certain financial indicators, (Zdanis Decl. Exs. 22-23, 25-27), she has not demonstrated pretext because Defendant's explanation does not concern her sales acumen. Ireland testified that Plaintiff was well-qualified in the realm of retail banking, but, given the restructuring, he valued coaching and leadership skills in prospective RBSMs. "[L]eadership style is not the sort of wholly subjective and unarticulated standard" that would support a showing of pretext. Tucker v. New York City, 376 F.Appx. 100, 102 (2d Cir. 2010) (summary order) (internal quotation marks omitted); see id. (plaintiff's superior qualifications "[did] not support a finding of pretext because the [defendant] did not assert that it hired a better qualified applicant, but rather that it hired a more collaborative one"). Plaintiff has offered no evidence of her leadership skills, or that Ireland's concerns were misplaced. See id. at 103. While she argues that Ireland had no basis on which to judge her leadership skills, she admits that she attended a meeting with Ireland in January 2011, (P's Response to 56.1 ¶ 47), and testified at her deposition (though she now denies) that she and her competitors made presentations on that subject at the meeting. (P's Dep. 198:17-18.) Plaintiff cannot create a dispute of fact on this issue by denying it in her sworn declaration. See Bickerstaff v. Vassar Coll., 196 F.3d 435, 455 (2d Cir. 1999) ("It is beyond cavil that a party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that contradicts the affiant's previous deposition testimony.") (alteration and internal quotation marks omitted).[13] Ireland's observation of Plaintiff at that meeting and other interactions with her via e-mail or otherwise provide a plausible basis to judge her coaching and leadership style.[14] Those abilities are difficult to quantify, yet "[a]n employer is entitled to arrive at a subjective evaluation of a candidate's suitability for a position." Byrnie, 243 F.3d at 106.

Plaintiff may disagree that intangibles such as leadership ability should drive the decision of whom to select among several strong performers, but "to defeat summary judgment on the ground of pretext [a plaintiff has] to adduce evidence that his qualifications were so superior' to [the chosen candidates'] that no reasonable person, in the exercise of impartial judgment, could have chosen [those candidates] over the plaintiff for the job in question.'" Turner v. NYU Hosp. Center, 470 F.Appx. 20, 24 (2d Cir. 2012) (summary order) (quoting Byrnie, 243 F.3d at 103). The court's "role is to prevent unlawful hiring practices, not to act as a super personnel department' that second guesses employers' business judgments." Byrnie, 243 F.3d at 103 (quoting Simms v. Oklahoma ex rel. Dep't of Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330 (10th Cir. 1999)). "Only where an employer's business decision is so implausible as to call into question its genuineness should this Court conclude that a reasonable trier of fact could find that it is pretextual." Fleming v. MaxMara USA, Inc., 371 F.Appx. 115, 118 (2d Cir. 2010) (summary order). Ireland's decision here does not meet that standard. He asked Plaintiff and others to explain how they would inspire middling supervisees to better sales, and his view that Plaintiff's answer was weak and that she would be less effective as a coach of her supervisees, cannot be said to be so improbable - particularly given the new emphasis of the RBSM position - as to suggest that employment of that metric was a cover-up for age or gender discrimination.[15]

Further undermining any inference that discrimination played a role in Plaintiff's nonselection for the RBSM position is that: a) the alleged discriminator, Tyzik is a woman ten years older than Plaintiff, see, e.g., White v. Pacifica Found., 973 F.Supp.2d 363, 380 (S.D.N.Y. 2013) (decision-maker in same protected class as plaintiff "undermines any possible inference of discriminatory animus"); fairly evaluated Plaintiff during her employment, ( see P's Dep. 121:16-122:6, 144:3-145:6; 146:15-148:14, 149:23-150:3); and called Plaintiff two or three days after P's meeting with Ireland to tell P about a job opening with the same pay (P's Response to 56.1 ¶ 72); and b) the decision-maker, Ireland, at the time he decided not to give one of the RBSM positions to P, gave half of the six openings to women over forty, ( Id. ¶ 64; Hutter Decl. ¶ 22) and gave one of two district director positions to Tyzik, a woman well over forty, (P's Response to 56.1 ¶ 54).

Because she has failed to demonstrate that Defendants' proffered reason for her termination is a pretext for discrimination, summary judgment in favor of Defendants is warranted on Plaintiff's Title VII, ADEA, and NYSHRL disparate treatment claims.[16]

C. Hostile Work Environment Claims

Plaintiff has voluntarily withdrawn her hostile work environment claims. (P's Mem. 25.)

D. Retaliation Claims

I dismissed Plaintiff's Title VII and ADEA retaliation claims for failure to exhaust administrative remedies, ( see Doc. 31), but Plaintiff's retaliation claim under New York Human Rights Law, see N.Y. Exec. Law § 296(7), remains. "[R]etaliation claims under the NYSHRL are generally governed by the same standards as federal claims under Title VII, " Schiano v. Quality Payroll Sys., Inc., 445 F.3d 597, 609 (2d Cir. 2006), and are analyzed under the same burden-shifting framework, Malena v. Victoria's Secret Direct, LLC, 886 F.Supp.2d 349, 361 (S.D.N.Y. 2012). "To establish a prima facie case of retaliation under the NYSHRL, as under federal employment anti-discrimination law, a plaintiff-employee must show that (1) she engaged in protected activity; (2) the employer was aware of this activity; (3) the employer took adverse action against the employee; and (4) a causal connection exists between the protected activity and the adverse action." Id. at 361-62.

Plaintiff has not shown that she engaged in protected activity. She claims that she stood up to protect other older female colleagues, (P's Mem. 25), but there is no evidence that she did so with reference to age or gender. It is undisputed that Plaintiff told Tyzik she "did not agree with putting Ms. Slettene on probation, '" (P's Response to 56.1 ¶ 95), but Plaintiff testified at her deposition that she did not complain about discrimination targeted at her or anyone else:

Q: You never complained that others were being discriminated against while you were working at HSBC?
A: That's correct.
Q: You never complained that others were being harassed while you worked at HSBC, correct?
A: That is correct.

P's Dep. 109:19-110:4. Plaintiff points to further testimony from the same deposition she claims proves otherwise:

Q: Well, you never told [Tyzik] that you felt that she was discriminating against anybody, correct?
A: I never used the word discriminating against. I talked to her about objecting to other employees and trying to work with her on other employees, but that was very - it was always - I was always very uncomfortable in doing that with her.

Id. at 271:15-24. But even if Plaintiff objected to certain work-related decisions regarding female employees, there is no evidence that she complained of discrimination, i.e., that the objectionable decisions were motivated by gender. See Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000) ("The term protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination."); Krasner v. HSH Nordbank AG, 680 F.Supp.2d 502, 522 (S.D.N.Y. 2010) (dismissing retaliation claim where "[plaintiff] failed to couch his complaint in terms of gender discrimination, [and thus] there was nothing in [plaintiff's] protests that could reasonably have led [defendant] to understand that gender was the nature of his objections.") (internal quotation marks and alterations omitted).

The only evidence of arguably protected activity Plaintiff offers is in her declaration, which states, "[O]n several occasions Tyzik noticeably changed her demeanor when I tried to defend other female employees with respect to the favorable treatment Tyzik gave [males]." (P's Decl. ¶ 130.) But Plaintiff previously testified that she never complained about discrimination directed at other employees, and she cannot create a factual dispute by offering a contradictory declaration. See Bickerstaff, 196 F.3d at 455. And even her declaration does not suggest she raised age or gender on any of the occasions when she defended a female employee. (P's Decl. ¶¶ 128-131).

Even if Plaintiff had established that she engaged in protected activity, and that Defendants knew about it, her retaliation claim would fail on the fourth element. There is a lack of evidence of any causal connection between her objections and her termination. Plaintiff asserts no temporal proximity between any protected activity and the adverse action.[17] She admits that she never complained to Ireland about Tyzik's actions, (P's Response to 56.1 ¶ 105), and, for the reasons stated above, there is no evidence that Tyzik influenced Ireland's decision to terminate Plaintiff. Accordingly, summary judgment in favor of Defendants is warranted on Plaintiff's retaliation claim.


For the foregoing reasons, Defendants' Motion for Summary Judgment is GRANTED and all claims are dismissed. The Clerk of Court is respectfully directed to terminate Defendants' Motion, (Doc. 49), enter judgment for Defendants, and close the case.[18]


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