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Saber v. New York State Department of Financial Services

United States District Court, S.D. New York

March 10, 2017

NASSER SABER, Plaintiff,


          LORNA G. SCHOFIELD, District Judge.

         Plaintiff Nasser Saber sues his employer Defendant New York State Department of Financial Services (“DFS”), alleging it discriminated against him on the basis of his national origin and religion and retaliated against him in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”). DFS moves for summary judgment. For the reasons stated below, all three causes of action survive -- discrimination based on national origin, discrimination based on religion and retaliation -- but are limited as follows.

         I. BACKGROUND

         The following facts are taken from the parties' statements pursuant to Federal Rule of Civil Procedure 56.1 and the parties' submissions on this motion. For the purposes of this summary judgment motion, all factual disputes are resolved, and all reasonable inferences are drawn, in favor of the non-moving party, Saber. See Young v. United Parcel Serv., Inc., 135 S.Ct. 1338, 1347 (2015).

         Saber is of Iranian national origin and Muslim. DFS is a New York State agency that regulates financial services institutions. In 2001, Saber began working for a predecessor agency to DFS. In 2007, he was promoted from Senior Risk Management Specialist to Principal Risk Management Specialist. A Risk Management Specialist “perform[s] research and targeted examinations of capital markets activities at regulated institutions.” In 2012, Saber was assigned to DFS's Capital Markets Division (“CMD”), where he currently works.

         A. The Chief Risk Management Specialist Position

         Around March 2012, DFS announced an opening for the position of Chief Risk Management Specialist (“CRMS”). The job duties include, among other things, overseeing other Risk Management Specialists. Saber applied for the position. DFS interviewed Saber and three others. According to DFS's former Director of Human Resources, an applicant would be interviewed only if HR and the relevant agency division determined that the applicant was qualified.

         The parties dispute what occurred during Saber's interview. A document dated July 2012 provides a comparative review of the four candidates interviewed. With regard to Saber, it states:

Saber did not provide responses that were of the level necessary for this position. His responses to several questions, most notably Solvency II and Basel 2.5 questions and about weaknesses in the SVAR of Basel 2.5, exhibited a lack of understanding. His discussion of his role as operational risk coordinator at BNYM was limited to the IT portion of his work, contrasted with his resume which spoke to extensive securities operations work done. Mr. Saber noted that the description of the job in the posting was inaccurate as it reflected the duties of a lower level position. When advised that this work is in fact part of the duties of a team leader and the Chief, he responded “if it needs to be done, he will do it albeit with reluctance.”

         David Logan, who was co-head of CMD and interviewed Saber, testified that the document was “an accurate reflection” of the interview. Logan also testified that they “talk[ed] about Basel 2.5” and “the SVAR” and that Saber “didn't seem to have an understanding” of the topics.

         Saber attests that the document “seriously misstates what occurred in [his] interview.” He testified that his “responses did not reflect a lack of understanding on any topic, ” explaining that that the interview covered “topics on which [he had] both written and taught.” He also denies stating that the job description was “wrong” or that he would perform the job “with reluctance.” After the interview, DFS did not inform Saber whether or not he would be offered the position.

         Around September 2012, DFS again announced the vacancy for the CRMS position. DFS had previously “re-announced” vacancies for “a variety of reasons.” Not knowing whether he was still being considered for the position, Saber submitted another application but was not interviewed again. DFS ultimately hired John Cappello, who began his employment in May 2013. Saber did not learn that he had been denied this CRMS position until August 2013, when Cappello was assigned to be his supervisor.

         In January 2013, another CRMS position became vacant. DFS “never announced or opened to competition” this CRMS position. Anna Taam was hired for the position. Saber did not learn that the position had been available or that Taam had been selected until Taam started working for DFS in February 2013. Taam was Saber's supervisor from February 2013 until August 2013, when Saber was assigned to work under Cappello.

         After filing the instant lawsuit in 2015, Saber learned that DFS had hired Olivia Bumgardner for another CRMS position that it had “never announced or opened up to competition.” An evaluation that Logan drafted states that Bumgardner was interviewed in January 2013 for the CRMS position for which Cappello was selected. Bumgardner, according to the evaluation, had “limited product experience” and gave “weak response[s] to several questions, especially those involving project management.” She was ranked last out of the seven applicants, not including Plaintiff. Saber attests that Bumgardner had no “experience planning and conducting examination of the capital markets activities of banks and/or insurance companies, and she had no experience in trading and risk management, ” and thus she could not meet the “minimum qualifications” for the position as specified in DFS's previous CRMS vacancy announcements.

         B. Saber's 2013 Cubicle Assignments

         In May 2013, CMD relocated its office. Its new location includes individual offices and “cubicles designed as open-architecture workstations that are attached by low dividing walls.” DFS employees who work in the cubicles can see one another and are “all exposed to both natural light from the windows as well as light from overhead electric panels.” The cubicles are arranged in aisles with one of the aisles being adjacent to the perimeter windows “overlooking the New York harbor.” Saber's cubicle was not adjacent to a window and was located by the emergency exit stairs and a bathroom. He was subsequently assigned to a smaller cubicle “that was completely exposed, providing no privacy . . . and was exceedingly noisy, situated by the printer and fax machine used by everyone on the floor.”

         C. Saber's Out-of-Title Grievance

         In around June 2013, Saber met with Taam and the co-head of CMD, Matti Peltonen, to request a promotion to the position of Supervising Risk Management Specialist. The grade level for a Supervising Risk Management Specialists was 31, while the grade level for Saber's position, Principal Risk Management Specialist, was 29. Saber was the only “specialist” in his group -- the “Insurance” side of CMD -- who was not designated a grade level 31. He was also the only specialist who was Muslim and the only specialist who was “of Iranian, Persian or Middle Eastern national origin.”

         After meeting with Taam and Peltonen, Plaintiff filed an “out of title” work grievance in accordance with his union's collective bargaining agreement with the State of New York. His grievance states that he had been “assigned to a group where all capital markets specialists are, and were hired as, grade 31” and he “perform[ed] similar duties to them at a minimum.” Saber requested that his grade level be changed to 31. In the initial grievance, Saber did not mention the national origin, ethnicity or religion of either himself or any of his co-workers and did not use the word discrimination.

         The grievance was sent to DFS's Agency Labor Relations Representative Scott Gollop. Carol DeLuca from DFS's HR Department performed a desk audit of the grievance, which she gave to Gollop. A desk grievance involves examining the particular tasks that an employee performs as part of his or her job and the amount time spent on each task. Saber attests that neither DeLuca nor Gollop compared the job duties performed by Saber with those performed by the Grade 31 Supervising Risk Management Specialists at DFS.

         In January 2014, Gollop sent Saber a letter informing him that his grievance had been denied. The letter states that, “although there may be occasions when [Saber] performs duties similar to that of a Supervising Risk Management Specialist, those duties do not comprise a significant percentage of [his] workday.” The letter also notes that, while certain “duties are common to all grade levels within the [Risk Management Specialist] title series, it is the size and complexity of the assigned entities, and supervisory responsibilities that serve as the distinguishing factors when determining appropriate grade level.” The New York State Department of Civil Services Classification Standards states that Supervising Risk Management Specialists conduct examinations “at the largest, most complex institutions, especially large money-centers.” Gollop's letter concludes that the insurance companies and pension funds that Saber had examined were not the “most complex” companies, explaining that, for the pension fund, the company was a domestic entity that offered only one financial product.

         D. Saber's Counseling Session and Reassignment

         On July 19, 2013, Saber sent an email regarding “[t]hree proposals for improving the desk audit of monolines.”[1] Saber sent the email to Peltonen, Taam and eight others. Taam attests that at least one of the other addressees on the email was a “trainee” and that she was “concerned” about the email's content because it “included commentary about work that [Saber] questioned belonged in the domain of CMD responsibilities.” Later that month, Taam and Peltonen held a formal counseling session with Saber to discuss the email. Taam and Peltonen also discussed an email that Saber had sent to a senior member of a company that DFS regulates. In that email, Saber wrote, “Be warned that I am terrible on the phone and can barely get a point across, hence the request for a face to face meeting.” Taam told Plaintiff that the statement did not “reflect well on DFS” and “was a disservice to DFS to suggest that staff cannot communicate effectively by phone.” On August 12, 2013, Taam provided Saber with a memorandum summarizing the counseling session.

         In August 2013, Saber was assigned to work for John Cappello. For the next three months, Saber functioned as a “Desk Examiner, ” which is a “non-existent title on the Banking side” of CMD, and was the “only specialist relegated to remaining in the office rather than conducting examinations on-site at financial institutions.”

         E. The EEOC Charge and Subsequent Performance Reviews

         On November 27, 2013, Saber filed a Charge of Discrimination (“Charge”) against DFS with the U.S. Equal Employment Opportunity Commission (“EEOC”). DFS received notice of the EEOC Charge approximately three weeks later in December 2013.

         1. The January 2014 Performance Review

         On January 10, 2014, Saber received a performance evaluation, which both Cappello and Logan signed. The evaluation covered the work Saber performed while under Taam's supervision and while under Cappello's supervision. DFS's evaluation forms provide only two performance ratings from which to choose: “Satisfactory” or “Unsatisfactory.” While Saber received a “Satisfactory” rating, Cappello's comments highlighted concerns regarding his work. For instance, the evaluation states that “[w]hile [Saber's] performance of th[e] task [of reviewing incoming reports] met minimum standards, his comments were largely superficial, often caustic, and rarely constructive or additive to the product.” The January 2014 evaluation was the first performance appraisal Saber had ever received with negative comments about his work conduct or performance. The evaluation's timing was “unusual” given that (1) Saber “had not received any performance appraisals for years” and (2) DFS's policy requires evaluations to be issued on the anniversary of the employee's start date, which for Saber was early October.

         2. The Interim Evaluation Reports

         Beginning in November 2013, Saber was assigned to conduct on-site examinations for “two very small financial institutions with little or no capital markets activity, ” Summit Mortgage Bankers (“Summit”) and Emigrant Bank. He was first assigned to a surprise examination of Summit. The Examiner in Charge (“EIC”) was Myra Francis, who reported to Helen Hodge, a Principal Bank Examiner II. On December 19, 2013, Logan sent an email to Hodge asking if she could provide an Interim Evaluation Report (“IER”) on Saber's work on the Summit examination and identifying for Hodge several alleged deficiencies in Saber's work. The request for an IER was atypical; Hodge noted to Logan and Cappello that the IER was “the first time that [CMD] ha[d] asked for an IER on their staff” and that “we generally[] do not write IERs for Specialists.”

         In January 2014, Hodge sent the IER to Logan. Logan said he approved of the IER, telling Hodge that he thought the “EIC did a great job [in preparing the IER] and skillfully worded a SAT [Satisfactory] IER with an UNSAT [Unsatisfactory] narrative.” Sometime between January 14 and March 10, Hodge provided the IER to Saber.

         Saber was also assigned to work on the examination of Emigrant Bank around January 2014. Logan asked that an IER be prepared “[u]pon completion of [Saber's] contribution to the exam.” The IER for the Emigrant Bank examination gave Saber a Satisfactory rating and, unlike the IER for the Summit examination, included only positive feedback of his performance.

         3. Saber's Mid-Year ...

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