United States District Court, S.D. New York
MICHELE F. BUCEK, Plaintiff,
GALLAGHER BASSETT SERVICES, INC., Defendant.
Michael H. Sussman, Esq. Sussman & Watkins Goshen, NY
Counsel for Plaintiff
J. DiMaria Esq. Nicole A. Welch, Esq. Aaron Warshaw, Esq.
Ogletree, Deakins, Nash, Smoak & Stewart, P.C. New York,
NY Counsel for Defendant
OPINION & ORDER
KENNETH M. KARAS, UNITED STATES DISTRICT JUDGE.
Michele F. Bucek (“Plaintiff”) brought this
Action against her former employer, Gallagher Bassett
Services, Inc. (“Defendant” or “GB”),
alleging that it failed to promote her because of her gender,
retaliated against her for complaining about it, and paid her
less than male employees, all in violation of the New York
Human Rights Law, N.Y. Exec. Law § 296. (Not. of Removal
Ex. A (“Compl.”) (Dkt. No. 1).) Before the Court
is Defendant's Motion for Summary Judgment. (Notice of
Mot. For Summ. J. (Dkt. No. 22).) For the following reasons,
the Motion is granted.
following facts are taken from Defendant's statement
pursuant to Local Civil Rule 56.1, (Def.'s Rule 56.1
Statement (“Def.'s 56.1”) (Dkt. No. 24)),
Plaintiff's response to Defendant's 56.1 statement
and counterstatement, (Pl.'s Resp. to Def.'s 56.1
Statement & Counterstatement (“Pl.'s Resp.
56.1” and “Pl.'s Counter-56.1, ”
respectively) (Dkt. No. 30)), and the exhibits submitted by
both Parties, and are recounted “in the light most
favorable to” Plaintiff, the non-movant. Wandering
Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018)
(internal quotation marks omitted). The facts as described below
are not in dispute unless indicated otherwise.
The Branch Manager Position
is a third-party administrator of insurance claims handled by
various insurance providers. (Def.'s 56.1 ¶ 1.) On
April 10, 2006, Plaintiff began working at GB as a Senior
Claims Representative, a role in which she worked on
workers' compensation insurance claims. (Id.
¶¶ 2-3.) Throughout her employment at GB, Plaintiff
reported to its Parsippany, New Jersey branch, (id.
¶ 4), for “direction and supervision, ”
although she varied between working from home three days a
week and full time, (Pl.'s Resp. 56.1 ¶ 4). In
October 2012, Plaintiff was promoted to the position of
Claims Supervisor. (Id. ¶ 5.) In this role,
Plaintiff was responsible for supervising a team of Claims
Representatives handling workers' compensation claims for
GB's clients. (Def.'s 56.1 ¶ 6.) She reported to
the Parsippany Branch Manager, who was initially Dawn
Gottschalk and, then, as of 2014, Kenneth Nietzer
(“Nietzer”). (Pl.'s Resp. 56.1 ¶ 7.)
in 2014, GB rolled out certain internal criteria referred to
as the “Toolkit.” (Def.'s 56.1 ¶ 8.) The
Toolkit would monitor the claims system and indicate if
certain criteria relating to the claims administration
process were being met: if the criteria were timely
completed, the Toolkit would show as “green, ”
but if they were not, the Toolkit would show as
“red.” (Id.) Plaintiff admitted that a
Claims Supervisor's goal was to have his or her Toolkit
in the green-a GB “best practice”-not the red.
(Id. ¶ 9.) However, the Parties dispute when
compliance with the Toolkit became mandatory. Defendant
claims that Claims Supervisors were responsible for complying
with the Toolkit from the outset of its introduction, while
Plaintiff contends that the Toolkit was initially
“presented as a guideline, not a requirement, ”
and it only became mandatory in 2015. (Compare Id.
¶¶ 8-10 with Pl.'s Resp. 56.1
¶¶ 8-10.) Plaintiff also alleges that, when they
informed her the Toolkit was mandatory, Branch Managers
Gottschalk and Nietzer both also “stated that they did
not believe in [the Toolkit] and that it lacked merit.”
(Pl.'s Resp. 56.1 ¶ 8.)
her discussions with Joseph Ryan (“Ryan”), the
Northeast Zone Vice President of Operations, it was clear to
Plaintiff that maintaining a green Toolkit was of
“utmost importance.” (Def.'s 56.1 ¶ 10.)
However, Plaintiff contends that Ryan did not tell her this
until August 2015. (Pl.'s Resp. 56.1 ¶ 10.) And,
while it is undisputed that Plaintiff admitted her team's
Toolkit was “not looking really good” and that
Ryan felt it was a priority to get her team “green,
” (Def.'s 56.1 ¶ 11), Plaintiff purports that
Ryan said this in May 2015 during a personnel review,
(Pl.'s Resp. 56.1 ¶ 11.) Prior to May 2015, however,
Plaintiff alleges that she advised Ryan of a several
impediments to getting her team green: an adjustor had left
and the claims system would not allow other team members to
cover that person's assignments; some adjustors had
exceeded the maximum number of claims they were permitted to
handle and thus could not take further assignments; and the
medical-only adjustor was not performing her duties well.
(Id.) According to Plaintiff, Ryan told her he
understood and would get back to her, but only hired a
temporary adjustor who was ineffective. (Id.)
January 2015, Nietzer resigned, creating an opening for the
Parsippany Branch Manager position. (Def.'s 56.1 ¶
12.) On February 4, 2015, Plaintiff informed Ryan and Ajay
Sinha (“Sinha”), Executive Vice President of U.S.
Operations, that she was interested in the position.
(Id. ¶ 13.) Neither Ryan nor Sinha ever
discouraged her from applying. (Id. ¶ 15.) On
March 10, 2015, Ryan and Sinha conducted a face-to-face
interview of Plaintiff. (Id. ¶ 14.) Plaintiff
contends that, during the interview, both men questioned her
about why she wanted to work from the office when she had
long worked from home, and spent considerable time
accentuating the difference in locale between her prior
position and the Branch Manager position. (Pl.'s Resp.
56.1 ¶ 15; Pl.'s Dep. 53.)
Harrington, who had been a Claims Supervisor in the
Parsippany branch for only 18 months, also applied for the
Branch Manager position. (Def.'s 56.1 ¶ 16;
Pl.'s Resp. 56.1 ¶ 16.) Ryan and Sinha interviewed
Harrington in person. (Def.'s 56.1 ¶ 16.) They also
interviewed three external candidates, one of which did not
perform well in the interview, another of which requested too
high a salary, and the third of which was overqualified.
(Decl. of E. Joseph Ryan (“Ryan Decl.”)
¶¶ 4-5 (Dkt. No. 27).) After the interviews, Ryan
selected Harrington for the Branch Manager position.
(Def.'s 56.1 ¶ 17.)
Parties dispute why Ryan selected Harrington instead of
Plaintiff. Defendant contends that Ryan “believed
Harrington was the best qualified candidate.”
(Id.) Ryan specifically avers that he selected
Harrington for three reasons: (1) as Claims Supervisor of the
ORCPG account, Harrington transformed the team from
“one of the worst performing GBS claims teams in the
country” to “one of the best performing”
ones; (2) Plaintiff's “team regularly struggled to
remain current with the claims they were responsible for
processing, ” and Ryan “knew that . . .
[P]laintiff's team was regularly failing to satisfy the
Toolkit criteria”; and (3) he “believed
Harrington performed better than [P]laintiff during the
interviews.” (Ryan Decl. ¶¶ 8- 10; see
also Def.'s 56.1 ¶¶ 18-20
(same).) Ryan thus determined that
“Harrington was better qualified for the position
because he had the leadership, competency, and skills [they]
w[ere] looking for in a Branch Manager.” (Def.'s
56.1 ¶ 21 (citing Ryan Decl. ¶ 11).)
disputes these proffered rationales. First, Plaintiff avers
that, when Harrington was a Claims Supervisor, she observed a
clerk on his team manipulating the claim entries to
“make the toolkit green” without actually
advancing claim processing. (Pl.'s Resp. 56.1 ¶ 18
(citing Aff. of Michelle Bucek (“Bucek Aff.”)
¶ 10 (Dkt. No. 29)).) Second, Plaintiff denies that her
team's failings were her fault, explaining that the team
had been through six supervisors in four years and was poorly
performing at the time Plaintiff took over, and that GB was
not using the Toolkit when she first started. (Id.
¶ 19 (citing Bucek Aff. ¶ 11).) Third, Plaintiff
claims, for the first time in opposition to the Motion for
Summary Judgment, that she did discuss more than
just her qualifications for the Branch Manager Position in
the interview, referencing how she improved the United
Airlines team audit score to a 93.7, created tools to
expedite claim handling without concurrent quality loss, and
her business experience outside of GB. (Id. ¶
20 (citing Bucek Aff. ¶ 12).)
also argues that, “[o]bjectively, Harrington was not as
qualified for leadership in the industry” as Plaintiff
because “he had an MBA, but she [had] an MA and an ARM
[Associate in Risk Management] which GB paid for.”
(Id. ¶ 21 (citing Bucek Aff. ¶ 13);
but see Id. ¶ 22 (“Admit that [P]laintiff
was not privy to Harrington's resume.”).) However,
Plaintiff admitted that Harrington also served as a Claims
Supervisor, but she did not know if he was successful in that
role, she had “no idea” if Harrington's team
improved under his leadership, and “no idea” if
Ryan was happy with Harrington's job performance in that
leadership role. (Def.'s 56.1 ¶ 22 (quoting
Pl.'s Dep. 172).) Plaintiff also contends that she was
more qualified than Harrington because she had more seniority
at GB. (Def.'s 56.1 ¶ 23 (citing Compl. ¶ 14).)
But, the Parties dispute whether seniority was a criterion
considered in the Branch Manager hiring decision. Ryan avers
that seniority was not considered. (Ryan Decl. ¶ 12.)
Plaintiff counters that GB never published or announced any
specific criteria for the decision. (Pl.'s Resp. 56.1
¶ 23.)Finally, Plaintiff contends that she was
more qualified than Harrington because she had conducted
training of Claims Representatives. (Def, 's 56.1 ¶
24 (citing Compl. ¶ 14).) Defendant claims that previous
training experience was not a criterion considered for the
Branch Manager position. (Ryan Decl. ¶ 13.) Plaintiff
testified that she “didn't recall” if it was,
(Def.'s 56.1 ¶ 24 (quoting Pl.'s Dep. 62)), but
asserts that such training experience was viewed as a factor
supporting her promotion to Claims Supervisor, (Pl.'s
Resp. 56.1 ¶ 24; see also Pl.'s
Counter-56.1 ¶ 14 (listing reasons why Plaintiff was
more qualified than Harrington)).
April 23, 2015, Ryan told Plaintiff over the phone that he
was going to announce to staff that Harrington would be the
new Branch Manager the following day. (Def.'s 56.1 ¶
25; Pl.'s Resp. 56.1 ¶ 25.) Defendant contends that
Ryan advised Plaintiff he felt Harrington was very qualified
for the position, (Def.'s 56.1 ¶ 25), while
Plaintiff alleges that Ryan offered “no reason or
rationale” to her, (Pl.'s Resp. 56.1 ¶ 25;
see also Pl.'s Counter-56.1 ¶ 12).
Harrington began working as the Branch Manager in April 2015,
at which time Plaintiff began to report to him. (Def.'s
56.1 ¶ 26.) Shortly after the formal announcement that
Harrington would be the new Branch Manager, Plaintiff called
Ryan and told him she felt she hit a “glass
ceiling” with the company and did not see any room for
advancement. (Def.'s 56.1 ¶ 30; Pl.'s
Counter-56.1 ¶ 13.) At her deposition, the following
Q: What do you mean when you said that you felt you had hit a
A: I meant that through the company of GB, there did not seem
to be a clear line of promotion for me since I was at a
supervisor and I had not been not promoted to branch manager.
So there were no other opportunities in the claim division
from my understanding.
Q: So in other words, after supervisor is branch manager?
Q: So if you are not branch manager, there's no other
room to move up?
A: Not in the claims division.
Q: That's what you are referring to when you are
referring to glass ceiling, correct?
Q: And did you explain that to [Ryan], did you explain what
you meant by hitting the glass ceiling?
A: Yes, I did.
(Pl.'s Dep. 72-73; see also Def.'s 56.1
¶ 31 (same).) Further, Plaintiff testified:
Q: When you mentioned glass ceiling in the conversation, did
you mention glass ceiling with regard to gender or glass
ceiling with regard to there was just no place else to move
A: I did not mention anything about gender.
(Pl.'s Dep. 75; see also Id. at 169 (saying
“[n]o” in response to the question “[w]hen
you had that call with [Ryan] when you mentioned glass
ceiling, you didn't mention anything about your gender,
right?”).) Plaintiff now contends, however, that she
understood the phrase “glass ceiling” to be
“a plain reference to gender bias and limitations
imposed upon women seeking to advance due to their
gender.” (Bucek Aff. ¶ 18.) Further, Plaintiff
testified about why she felt her gender motivated the
decision not to promote her:
Q: . . . You are saying and your lawsuit is that you were not
selected for the branch manager position because of your
gender, because you are a woman. A: Right.
Q: And I want you to tell me every fact which you believe
supports that conclusion.
A: Okay. All of the management above me with the exception of
Dawn has been male in the GB system. Dawn was hired as a
branch manager to do both workers' comp and general
liability. Once they split that out so it could be
workers' comp versus general liability, I felt that there
was an opportunity for me to fit that position because I did
not have the general liability experience.
I thought that they were just trying to fill the position
with part of the all-boy club and that was the perception
that I got when they made that decision to hire. Until they
made the announcement of who was going to get the position, I
really thought that I had a shot at that. And then once they
made the announcement, it just reinforced the all-boy club.
Q: Okay. So tell me every fact which supports your conclusion
that Harrington was hired because it was part of an all-boy
club. Tell me every fact.
A: It's perception. I mean, [Ryan] and [Harrington] would
frequently discuss things even when [Harrington] was a
supervisor. [Harrington] was not known within the office to
be very well received by many people. And he - his demeanor
toward women in general was so negative and [Ryan] treated
people the same way. They just seemed to click and resonate
together. So it made sense that they were going to go with
(Pl.'s Dep. 159-161.) Plaintiff also testified to other
preferential treatment of men at GB, including that male
employees who should have been fired were not fired and
female employees were terminated for less serious conduct.
(See Pl.'s Dep. 162-67.) Plaintiff confirmed that
these facts constitute “every fact” that she
believes supports her contention that Harrington was selected
as Branch Manager instead of her because of her gender.
(Id. at 167.)
The 2014 Performance Review
received positive performance reviews from 2008 through 2013,
and earned Supervisor of the Year awards in 2013 and 2014.
(Pl.'s Counter-56.1 ¶¶ 3-4.) In her 2013
performance review, Neitzer gave her an “Exceeds
[E]xpectations” rating and said Plaintiff was
“the strongest supervisor [he] ha[d] in the
branch.” (Aff. of Michael H. Sussman in Opp. to Mot.
for Summ. J. (“Sussman Aff.”) Ex. 1 at 30 (Dkt.
No. 31).) In May 2015, Ryan provided Plaintiff with her
performance review for 2014. (Def.'s 56.1 ¶
36.) Ryan gave Plaintiff an overall rating of
“Met some, but not all expectations.”
(Id. ¶ 37.) The overall summary of Ryan's
Michele's clients have offered many positive comments
throughout the review period. As discussed, Michele should
concentrate on meeting internal initiatives in order to
ensure that we are meeting our clients['] expectations.
One area for immediate focus is the Toolkit. Aligned with
that, Michele should hold her adjusters accountable for
meeting established expectations. By doing so, Michele will
be able to concentrate on her management responsibilities.
She will then be able to lend further contributions to the
branch and Zone.
Decl. Ex. J (“2014 Performance Review”) 1;
see also Id. at 2 (noting that Plaintiff
“places her clients['] needs above meeting Toolkit
initiatives, ” which “filter[s] down to her staff
who also are not meeting expectations”); id.
at 4 (“I would like for [Plaintiff] to concentrate on
holding her staff accountable. This will allow her to advance
her management abilities and focus on reserving and