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Bucek v. Gallagher Bassett Services, Inc.

United States District Court, S.D. New York

March 29, 2018

MICHELE F. BUCEK, Plaintiff,

          Michael H. Sussman, Esq. Sussman & Watkins Goshen, NY Counsel for Plaintiff

          Carmen 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


         Plaintiff 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.

         I. Background

         A. Factual Background

         The 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).[1] The facts as described below are not in dispute unless indicated otherwise.

         1. The Branch Manager Position

         Defendant 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.)

         Beginning 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.)

         Through 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.)

         In 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.)

         James 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.)

         The Parties dispute why Ryan selected Harrington instead of Plaintiff. Defendant contends that Ryan “believed Harrington was the best qualified candidate.” (Id.)[2] 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).)[3] 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).)

         Plaintiff 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)).)[4] 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).)[5]

         Plaintiff 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.)[6]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)).

         On 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.)[7] At her deposition, the following exchange occurred:

Q: What do you mean when you said that you felt you had hit a glass ceiling?
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?
A: Yeah.
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?
A: Yes.
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 up?
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 him.

(Pl.'s Dep. 159-161.)[8] 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.)[9] 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.)[10]

         2. The 2014 Performance Review

         Plaintiff 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.)[11] Ryan gave Plaintiff an overall rating of “Met some, but not all expectations.” (Id. ¶ 37.) The overall summary of Ryan's assessment stated:

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.

         (Welch 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 resolution ...

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