WILLIAM M. SKRETNY, Chief Judge.
Presently before this Court are Objections to the Magistrate Judge's Report and Recommendation. In her Response, Plaintiff opposes the Objections as untimely, however, this Court finds the Objections to have been timely filed pursuant to Rule 6 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 6(a) and (d). Having reviewed the Report and Recommendation de novo after considering the Objections and the parties' submissions, see 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Local
It hereby is ordered that the Report and Recommendation 46 is ACCEPTED. Further, that the Objections 47 DENIED.
Further, that Defendants' Motion for Summary Judgment 26 is GRANTED in part and DENIED in part, consistent with the Magistrate Judge's recommendations. Further, that the Clerk of the Court is directed to terminate HSBC USA, Inc. as a defendant in this case.
FURTHER, that counsel shall appear at a status conference before this Court on 4/18/2011 at 9:00 a.m. to discuss how this case will proceed.
SO ORDERED.
LESLIE G. FOSCHIO, United States Magistrate Judge.
This action was referred to the undersigned by Honorable William M. Skretny on April 30, 2010, for pretrial matters including report and recommendation on dispositive motions. The matter is presently before the court on Defendants' motion for summary judgment (Doc. No. 26), filed April 28, 2010.
Plaintiff Dawn Riley ("Plaintiff" or "Riley"), commenced this action on December 16, 2008, alleging employment discrimination based on race by Defendants HSBC USA, Inc. ("HSBC USA"), and HSBC Bank USA, National Association ("the Bank") (together, "Defendants"), in violation of Title VII, 42 U.S.C. § 2000e-5, and New York Human Rights Law, New York Executive Law ("N.Y. Exec. Law")
On April 28, 2010, Defendants filed the instant motion for summary judgment (Doc. No. 26) ("Defendants' motion"), along with supporting papers including Defendants' Statement of Undisputed Material Facts (Doc. No. 27) ("Defendants' Statement of Facts"), the Declaration of Joseph Walker (Doc. No. 28) ("Walker Declaration"), the Declaration of Darcie J. Oakes (Doc. No. 29) ("Oakes Declaration"), the Declaration of James R. Grasso, Esq. (Doc. No. 30) ("Grasso Declaration"), with attached exhibits A through H ("Grasso Declaration Exh(s). ___"), the Declaration of Linda Bartholomew (Doc. No. 31) ("Bartholomew Declaration"), with attached exhibits A through F ("Bartholomew Declaration Exh(s). ___"), and Defendants' Memorandum of Law in Support of Their Motion for Summary Judgment (Doc. No. 32) ("Defendants' Memorandum"). On June 11, 2010, Plaintiff filed in response to Defendants' motion Plaintiff's L.R. 56.1 Counterstatement of Material Facts and Responses to Defendants' L.R. 56.1 Statement in Opposition to Defendants' Motion for Summary Judgment (Doc. No. 37) ("Plaintiff's Statement of Facts"), attached to which are Plaintiff's exhibits A through X ("Plaintiff's Exh(s). ___"), the Declaration of Kevin P. Wicka, Esq. (Doc. No. 38) ("Wicka Declaration"), the Declaration of Dawn Riley (Doc. No. 39) ("Riley Declaration"), and Plaintiff's Memorandum in Opposition to Defendants' Motion for Summary Judgment (Doc. No. 40) ("Plaintiff's Memorandum"). On June 25, 2010, Defendants
Based on the following, Defendants' motion for summary judgment should be GRANTED in part, with regard to the request that HSBC USA be dismissed as a defendant to the action, but otherwise should be DENIED as to the Bank.
Plaintiff Dawn Riley ("Plaintiff' or "Riley"), who is white, commenced working at Defendant HSBC Bank USA, National Association ("Defendant" or "the Bank") in February 1988,
Upon joining the CDD, the only other employee holding the same CRA Analyst position was one Linda Russo ("Russo"), who was white. Russo initially trained Plaintiff as a CRA Analyst, but within a few months of Plaintiff's arrival, Russo left the CDD for another position within the Bank. After Russo left the CDD, Plaintiff continued to learn the CRA Analyst job duties through "self-training" by reading procedure manuals. Plaintiff's Deposition Transcript ("Plaintiff's Dep. Tr.")
The CDD used a computer program called CRA-Wiz to process data and generate its HMDA and CRA reports. Although Adams's Senior CRA Analyst position required more technical skills than Plaintiff's CRA Analyst position, and required Adams to perform computer programming and fix CRA-Wiz programming problems, Plaintiff helped train Adams, who had no prior experience in the CDD or its functions, including familiarity with CRA and HMDA regulations, or using the CRA-Wiz program. Plaintiff did not perform any CRA-Wiz programming or troubleshooting.
During the first quarter of each new calendar year, an "Employee Performance Management" or "EPM" was created for each employee containing the employee's goals and objectives for the new year, along with anticipated completion dates for each goal and objective. The EPM contains a section entitled "MIP Goals"
The Bank's performance review policy includes issuing mid-year and year-end reviews, at which time employees receive job performance ratings from 1 (highest) to 5 (lowest), indicating whether specific objectives have been met. Each employees's overall rating affects an employee's raise and year-end bonus eligibility. A rating of 3 indicates the employee meets job expectations or satisfactory job performance, and is the minimum rating required for an employee to receive a year-end bonus. Any employee whose overall year-end rating is 4 or 5 is ineligible to receive a year-end bonus. Bartholomew prepared the mid-year and year-end reviews for the employees in the CDD in Buffalo including Plaintiff and Adams.
Plaintiff's year-end overall rating for 2005 was a 3, indicating Plaintiff had met all expectations as a CRA Analyst despite Plaintiff's limited seven-month period of employment in the CDD for 2005, and Plaintiff received a year-end bonus for 2005 based on her satisfactory year-end rating. Adams's year-end overall rating for 2005 was a 4, indicating Adams's job performance as Senior CRA Analyst was inconsistent and not at a minimally satisfactory level. According to Bartholomew, despite satisfactorily performing the technical aspects of her Senior CRA Analyst job, Adams had "attitude problems," displaying an attitude Bartholomew described as "very bad" and "belligerent." Bartholomew Deposition Transcript ("Bartholomew Dep. Tr.")
Despite being rated only a 4 for 2005, which rendered Adams ineligible for a year-end bonus, Bartholomew, in 2006, took Adams "off the IJD" and retroactively awarded Adams a bonus for 2005. Bartholomew Dep. Tr. at 107-08. Neither Nissenbaum nor Manna could recall that any other employee ever received a retroactive year-end bonus after receiving an overall rating of 4. Nissenbaum Dep. Tr. at 53-54; Manna Dep. Tr. at 35-36. Nor does the record indicate whether Bank procedures permitted or were followed in removing Adams from the IJD and retroactively awarding Adams a year-end bonus for 2005. Nothing in the record indicates Plaintiff was ever the subject of an IJD, including while employed as a CRA Analyst in the CDD or in any other Bank department.
On June 29, 2006, Adams commenced a maternity leave which was expected to continue until mid-October 2006. While Adams was on maternity leave, Plaintiff, in addition to her own job duties, was assigned to perform all of Adams's daily Senior CRA Analyst duties, but did not work on Adams's long-term projects because there was not enough time to do so. An e-mail from Bartholomew on June 29, 2006 ("June 29, 2006 Bartholomew email")
On July 10, 2006, Joseph Walker ("Walker"), an African-American, was hired for another CRA Product and Mapping Analyst position in the CDD. Walker's CRA Analyst position was the same as Plaintiff's CRA Analyst position. Walker was first hired as a Bank employee on October 31, 2002, as a Post-Closing Specialist with the Bank's Mortgage Corp. Prior to working in the CDD, Walker had no experience working with the CRA, the HMDA, or the CRA-Wiz computer program. When Walker was hired as a CRA Analyst, he held an Associate's degree in Computer Information Systems, and was pursuing a Bachelor's degree in Computer Information Systems, which Walker received in the spring of 2008. Plaintiff was assigned to train Walker.
On Plaintiff's 2006 mid-year evaluation, which Plaintiff received in August 2006, Riley Declaration ¶ 26, Bartholomew gave Plaintiff an overall rating of 4. Previous to the 2006 mid-year evaluation, Plaintiff had never received a rating below 3. According to Bartholomew, Plaintiff's 2006 mid-year rating of 4 was based on Plaintiff's lack of focus on details, and Plaintiff's reliance on Adams to resolve problems with trouble-shooting and programming the CRA-Wiz program. Bartholomew Declaration ¶ 13; Plaintiff's 2006 Mid-Year Review.
Despite the 2005 mid-year rating of 4, on August 22, 2006, Plaintiff was assigned additional duties under Phil Deterville ("Deterville"), another CDD employee. Plaintiff's work under Deterville was estimated to require 20% of Plaintiff's time, and included such duties as wire transfers, general ledger entries, monthly account reconciliations, and proofs of the CDD's accounts. Although Nissenbaum instructed Bartholomew to amend Plaintiff's 2006 EPM to reflect Plaintiff's work for Deterville, Plaintiff's Exh. R, no such change was ever made.
Thus, by September 2006, Plaintiff, in addition to performing the daily duties as a CRA Analyst, Plaintiff also performed Adams's Senior CRA Analyst duties while Adams was on maternity leave, trained Walker, and performed work for Deterville. When Adams returned from her maternity leave in October 2006, Walker was still learning the duties for his CRA Analyst position and continued to receive training from Plaintiff. Walker also received training from Bartholomew and from Adams by telephone during Adams's maternity leave.
While employed in the CDD, Plaintiff worked primarily with small business reporting under the CRA, Adams focused on HMDA reporting, and Walker focused on map production. Plaintiff, Adams and Walker were largely cross-trained, with Plaintiff able to perform Adams's and Walker's jobs, Walker and Adams could perform Plaintiff's job, and Walker also able to perform some of Adams's job while Adams was on maternity leave.
Plaintiff maintains that although Walker was regularly late for work and took extended lunches, including arriving more than 40 minutes late for a meeting while on a business trip in the fall of 2006, Walter was never reprimanded by Bartholomew. Plaintiff's Statement of Facts ¶¶ 56-57. Rather than reprimanding Walker, Bartholomew complimented Walker's appearance and dress. Id. ¶ 58.
One of Adams's on-going projects as a Senior CRA Analyst was to automate the CRA State Report Card ("State Report Card"), a monthly report used to ascertain the Bank's loan officers' performance compliance with respect to CRA and HMDA. Plaintiff's Statement of Facts ¶ 60. Automating the State Report Card would alleviate the need for employees to manually input data to create the report. Id. According to Plaintiff, throughout the time Plaintiff worked with Adams, the automated program properly worked only once, and every other time contained errors that had to be manually corrected, that Plaintiff was responsible for making the manual
Plaintiff maintains that several remarks by Bartholomew, which Bartholomew does not deny making, indicate Bartholomew's preference for African-American workers, rather than white workers. In December 2006, Bartholomew announced at a meeting with "the whole department," Bartholomew Dep. Tr. at 220, described as including Bartholomew, Plaintiff, Adams, Walker, one Karla Gadley (Gadley), who is African-American, and one Phil Deterville ("Deterville"), who is white, that Bartholomew believed she was a "black person" in a previous life, "dreams about black people," and "loves black music." Plaintiff's Statement of Facts ¶¶ 64-65 (quoting Riley Declaration ¶ 40; and Bartholomew Dep. Tr. at 220-23). Although Bartholomew characterized her statements as "joking," Bartholomew Dep. Tr. at 222, Plaintiff maintains no one laughed at them and, following the meeting, Plaintiff, Walker, and Adams discussed how "odd" the comments were. Plaintiff's Statement of Facts ¶¶ 65-66 (quoting Riley Declaration ¶ 42).
Both before and after Adams's maternity leave, Bartholomew stated she wanted to be Adams's baby's "white grandmother." Plaintiff's Statement of Facts ¶ 67 (quoting Riley Declaration ¶ 43; Bartholomew Dep. Tr. at 228). Bartholomew admits making the statement, id. ¶ 68 (citing Bartholomew Dep. Tr. at 228), but, other than that Bartholomew was aware that Adams's family lived out of town, Bartholomew was unable to explain why she perceived it relevant to consider herself as the baby's "white" grandmother. Defendants' Statement of Facts ¶ 75 (citing Bartholomew Dep. Tr. at 228 and Plaintiff's Dep. Tr. at 78-80). According to Plaintiff, Adams "looked surprised" when Bartholomew made the "white grandmother" statement. Plaintiff's Statement of Facts ¶ 69 (quoting Riley Declaration ¶ 43).
On another occasion, while Walker and Plaintiff were talking at Plaintiff's cubicle about Walker's church, Bartholomew walked over and stated she would like to attend Walker's church with him. Plaintiff's Statement of Facts ¶ 70. When Walker responded that most of the congregation "did not look like Linda Bartholomew," Bartholomew replied that she wanted to go even though she is "white." Id. (quoting Riley Declaration ¶ 44). Plaintiff further alleges Bartholomew repeatedly complimented Walker on his dress and appearance. Riley Declaration ¶ 35.
Bartholomew had tacked to the wall of her cubicle photographs of Bartholomew and Walker, and Bartholomew and one Loretta Abrams ("Abrams"), who was Bartholomew's second line manager to whom Nissenbaum reported, and who also is African-American. Bartholomew did not have on display in her office any pictures of Plaintiff, Nissenbaum, or Deterville.
Prior to the end of 2006, Bartholomew was advised that a shift of some work from the Bank's Buffalo CDD to Chicago would likely result in a reduction-in-force at the Buffalo office, requiring the elimination of one of the CDD's CRA Analyst positions. Bartholomew identified Plaintiff, Walker, and Adams as the three CRA Analysts from which the one to be terminated would be chosen. Plaintiff maintains Bartholomew's decision as to which of the three identified employees would be terminated was made prior to completing the year-end 2006 reviews.
In a January 2, 2007 e-mail to Bartholomew ("January 2, 2007 Nissenbaum email"),
Id.
In response, Bartholomew, by e-mail dated January 3, 2007 ("January 3, 2007 Bartholomew e-mail"),
In a January 5, 2007 e-mail to Nissenbaum ("January 5, 2007 Bartholomew email"),
January 5, 2007 Bartholomew e-mail (italics added).
In a series of e-mails
Despite Nissenbaum's instruction to Bartholomew on August 22, 2006, Bartholomew never amended Plaintiff's 2006 EDM to reflect the additional duties Plaintiff assumed under Deterville in August 2006. On the 2006 year-end evaluations, Bartholomew gave Plaintiff an overall rating of 4, and gave Walker and Adams overall ratings of 3. Plaintiff's year-end review contains comments by Bartholomew criticizing Plaintiff for filing monthly State Report Cards late, but does not mention that Plaintiff had to spend considerable time making manual corrections to the State Report Card which had not been properly automated by Adams. Bartholomew also failed to report the additional work Plaintiff performed during Adams's four-month maternity leave, training Walker, and working for Deterville. Although Bartholomew admitted that Plaintiff "did the bulk of the training" of Walker, Bartholomew Dep. Tr. at 88, there is no mention
In contrast, Bartholomew noted on Adams's 2006 year-end review that "Letitia has worked closely with Joe Walker, our newest Jr. Analyst, by providing technical assistance and guidance on a regular basis." Bartholomew Dep. Tr. at 88, Plaintiff's Exh. W. Adams's 2006 year-end review also states that
Plaintiff's Exh. W.
Adams's year-end review does not reflect the problems Adams experienced in attempting to automate the State Report Card process, which Plaintiff had to manually correct, but does contain comments criticizing Adams for failing to show initiative with regard to regulatory matters so as to avoid having to direct calls and inquiries to Bartholomew, failing to consistently review and "make sure that the work completed by the junior analysts is error free and accurate before it is submitted to management for distribution," and that, despite observed improvement, Adams "needs to continue to work on being more open and poised, and less defensive when receiving constructive feedback." Id. Adams's 2006 EPM included five separate objectives, four of which Adams was assessed at 3, and one at 2, for an overall 2006 year-end rating of 3. Id.
Walker's 2006 EPM contained four separate objectives, for which Walker was rated 3, for an overall year-end rating of 3. Plaintiff's Exh. V. Walker's 2006 year-end review contains no negative comments or criticisms. Id.
On January 18, 2007, Plaintiff was advised at a meeting with Nissenbaum and Bartholomew that the Bank was eliminating one of the CRA Analyst positions, and that Plaintiff's position had been selected for termination based on Plaintiff's 2006 year-end performance review, which Plaintiff had not yet seen. Plaintiff was given a folder containing information pertaining to a severance package and advised to contact the Bank's HR Department with any questions. Plaintiff was further advised she could continue working in her CRA Analyst position until the year-end 2006 CRA exam was completed, which usually occurred in early March each year, and that Plaintiff could post internally for vacant Bank positions.
Plaintiff remained at her job for several weeks, during which time Plaintiff posted for several open Bank positions. Plaintiff, however, was informed that she had not been selected for any vacant position because Plaintiff's 2006 year-end review had yet to be finalized. Plaintiff maintains that upon requesting Bartholomew issue Plaintiff's year-end review, Bartholomew replied that Plaintiff's final review would discourage anyone from hiring Plaintiff. Riley Declaration ¶ 50.
In mid-February 2007, Plaintiff was issued her final 2006 year-end review, showing Plaintiff's overall rating as 4, indicating inconsistent job performance and that none of the goals established for Plaintiff on her 2006 EPM had been met. The proposed comments Bartholomew included in the draft of Plaintiff's 2006 year-end job performance evaluation for Nissenbaum's review, Bartholomew Reply Declaration Exh. C, were included in the final draft, along with Bartholomew's earlier proposed ratings for the three separate objectives sections of 4, 5, and 4, with an overall year-end rating of 4. Plaintiff's Exh. U.
On February 16, 2007, Plaintiff e-mailed these comments to Manna who, in a telephone conversation with Bartholomew, made hand-written notations on Plaintiff's comments, memorializing Bartholomew's responses to some of Plaintiff's comments, including that (1) Plaintiff's mid-year overall performance rating of 4 was a warning to Plaintiff; (2) Plaintiff's failure to attempt to fix the automated State Report Card program, showed a lack of initiative; (3) CDD employees would send regulatory questions to Bartholomew because they were concerned that Plaintiff was not thoroughly researching for the correct answers to their questions and Plaintiff's answers could not be trusted; (4) Bartholomew's comments to Plaintiff about smoking were intended as a joke, although Bartholomew did urge Plaintiff to quit; and (5) Bartholomew's statements about being black in a previous life and dreaming about black people were made during a discussion with
On February 22, 2007, Plaintiff forwarded to Manna eleven e-mails Plaintiff had received during 2006 from Bartholomew, Nissenbaum and Gadley complimenting Plaintiff for her job performance, and requested Manna attach the forwarded emails to Plaintiff's 2006 year-end review. Later that same day, Manna contacted Plaintiff by telephone. Manna did not question Plaintiff about her complaints but, rather, advised Plaintiff that if she truly felt as Plaintiff had described in her e-mail, that Plaintiff could leave her job that day. Plaintiff's final day of work at the Bank was February 22, 2007.
On July 18, 2007, Plaintiff filed with the Equal Employment Opportunity Commission ("EEOC"), a charge of employment discrimination ("EEOC Charge").
Bartholomew voluntarily resigned from the Bank in February 2008. Bartholomew Declaration ¶ 2. At the time of her resignation, Bartholomew still held her Vice President and Regulatory Reporting Manager position in the CDD. Id.
On September 17, 2008, the EEOC issued its determination ("Right to Sue letter")
Defendants move for summary judgment, arguing that the Bank has proffered a legitimate, non-discriminatory reason for Plaintiff's termination, i.e., Plaintiff's poor job performance, which Plaintiff is unable to show was mere pretext for racial discrimination. Defendants' Memorandum at 5-6. According to Defendants, that the decisions to hire and terminate Plaintiff from the CRA Analyst position were made by Bartholomew who, like Plaintiff, is white, creates an inference in Defendants' favor against discrimination, Defendants' Memorandum at 6-8; Plaintiff is unable to show that she is similarly situated to Adams whose position was higher than Plaintiff's, id. at 8-9; Walker's qualifications for the CRA Analyst position were superior to Plaintiff's given that Walker possessed an Associate's degree and was working toward a Bachelor's degree in Computer Information Systems, id. at 9-11; Plaintiff's 2006 job performance was assessed at 4 compared to Walker and Adams, each of whom were assessed at 3, id. at 11-14; that Bartholomew's remarks regarding African-Americans failed to support a finding of discriminatory motivation because such comments are unrelated
In opposition to summary judgment, Plaintiff asserts that the evidence establishes material issues of fact as to whether Defendants' purported nondiscriminatory reason for terminating Plaintiff was mere pretext for unlawful racial discrimination. Plaintiff's Memorandum at 6-22. In particular, Plaintiff argues that a discrepancy in the purported legitimate business reason given by Defendants in the instant case, identifying Bartholomew as having made the decision to terminate Plaintiff, as compared to the reason provided in the EEOC Charge Answer that the decision to terminate Plaintiff was made by HR, is evidence of pretext. Id. at 6-14. Other evidence of pretext on which Plaintiff relies in opposition to summary judgment include Plaintiff's 2006 mid-year and year-end reviews in which Plaintiff received overall ratings of 4 and Adams and Walker were rated 3, id. at 14-19, and Bartholomew's comments regarding race. Id. at 19-22.
In further support of summary judgment, Defendants maintain that Plaintiff's argument regarding inconsistent reasons proffered by the Bank's EEO office and Defendants in this action is "based on a flagrant misreading of HSBC Bank's EEOC response and a selective presentation of evidence," and takes the Bank's EEOC Response out of context. Defendant's Reply at 1-4. Defendants further argue that certain inferences against discrimination recognized by the Second Circuit apply in this case, id. at 5-6, and that contrary to Plaintiff's assertions, the evidence fails to establish that Bartholomew's comments and actions were indicative of any racial preference. Id. at 6-10.
Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party's favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "A dispute about a `genuine issue' exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)). Once a party moving for summary judgment has made a properly supported showing of the absence of any genuine issue as to all material facts, the non-moving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995).
Title VII makes it "an unlawful employment practice" for an employer to
When a plaintiff alleges disparate treatment with regard to employment, liability depends on whether the protected trait, here, race, actually motivated the adverse employment decision. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). In the instant case, because Plaintiff alleges her employment with the Bank was terminated based on her race, Plaintiff must establish that her race "`actually played a role in [the employer's decisionmaking process] and had a determinative influence on the outcome.'" Reeves, 530 U.S. at 141, 120 S.Ct. 2097 (quoting Biggins, 507 U.S. at 610, 113 S.Ct. 1701) (bracketed material in original).
Initially, the court addresses Defendants' reference to Plaintiff's "reverse discrimination claim" on the basis that Plaintiff, who is white, alleges Defendants chose to terminate Plaintiff's employment position, rather than the position held by Adams or Walker, both of whom are African-American. Defendants' Memorandum at 1 ("This is a reverse employment discrimination case ..."). "Title VII of the Civil Rights Act of 1964 prohibits the discharge of `any individual' because of `such individual's race,' § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1). Its terms are not limited to discrimination against members of any particular race." McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273, 279, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) (reversing dismissal on the pleadings of Title VII employment discrimination action brought by two white plaintiffs who alleged they were discharged from their employment with a transportation company for misappropriating cargo from one of the company's shipments, but an African-American employee charged with the same offense was not discharged). Accordingly, that Plaintiff is white and not a member of a minority group does not foreclose a finding of race-based employment discrimination.
Defendants argue that Defendant HSBC USA is a bank holding company, owning 100% of the stock of Defendant Bank. Defendants' Memorandum at 23; Oakes Declaration ¶ 3. HSBC USA has no control over nor directs the labor and employee relations of the Bank. Defendants' Memorandum at 23; Oakes Declaration ¶ 5. As such, Plaintiff was employed by the Bank, but not by HSBC USA. Defendants' Memorandum at 23; Oakes Declaration ¶ 4. Accordingly, Defendants seek to have HSBC USA dismissed as a Defendant to this action. Defendants' Memorandum at 22-23. Plaintiff has not argued in opposition to this request.
A plaintiff may seek relief for employment discrimination under both Title VII and New York's Human Rights Law only against an employer. Gulino v. New York State Educ. Dept., 460 F.3d 361, 370 (2d Cir.2006) ("the existence of an employer-employee relationship is a primary element of Title VII claims."); Herman v. Blockbuster Entertainment Group, 18 F.Supp.2d 304, 313-14 (S.D.N.Y.1998) (considering whether defendant exercised sufficient control over plaintiff so as to be
Claims of employment discrimination are subject to a burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506-507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff bears the initial burden of establishing a prima facie case of unlawful discrimination, id., and the plaintiff's initial burden is said to be "de minimus." Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 202 (2d Cir.1995). Upon such a showing, the burden of going forward shifts to the employer, who must articulate some legitimate, non-discriminatory reason for the employee's termination or adverse employment action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Hicks, 509 U.S. at 507, 113 S.Ct. 2742. "This burden is one of production, not persuasion; it `can involve no credibility assessment.'" Reeves, 530 U.S. at 142, 120 S.Ct. 2097 (quoting Hicks, 509 U.S. at 509, 113 S.Ct. 2742). The ultimate burden of production then shifts back to the plaintiff to demonstrate "`that the proffered reason was not the true reason for the employment decision.'" Hicks, 509 U.S. at 508, 113 S.Ct. 2742 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089). "An employer's reason for the termination [or adverse employment action] cannot be proven to be a pretext for discrimination unless it is shown to be false and that discrimination was the real reason." Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995) (bracketed text added). The burden of persuasion, however, at all times remains with the plaintiff on the issue of the true motivation for the discrimination. Reeves, 530 U.S. at 143, 120 .S.Ct. 2097; Hicks, 509 U.S. at 507, 113 S.Ct. 2742; Burdine, 450 U.S. at 253, 101 S.Ct. 1089. Thus, to defeat a defendant's properly supported motion for summary judgment, the plaintiff must produce sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the employer were false, and that more likely than not the employee's race was the real reason for the discharge or adverse employment action. Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir.1996), cert. denied, 520 U.S. 1228, 117 S.Ct. 1819, 137 L.Ed.2d 1027 (1997).
To make out a prima facie case of employment discrimination under Title VII, a plaintiff must show (1) membership in a protected class, (2) satisfactory job performance, (3) termination of employment or other adverse employment action, and (4) the ultimate filling of the position with an individual who is not a member of the protected class. Farias v. Instructional Systems, Inc., 259 F.3d 91, 98 (2d Cir.2001) (citing Quaratino, 71 F.3d at 64); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). In the instant case, however, Plaintiff does not allege that she was replaced by an employee of
A plaintiff's burden to establish a prima facie case of employment discrimination to defeat summary judgment is de minimus, McLee, 109 F.3d at 134 (citing cases), and may be established based on either direct or circumstantial evidence. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir.2001) ("direct evidence of discriminatory intent [with regard to employment] is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions"); Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir.1997) ("Direct evidence is not necessary, and a plaintiff charging discrimination against an employer is usually constrained to rely on the cumulative weight of circumstantial evidence."). Further, as the court may not resolve issues of fact on a summary judgment motion, its determination is limited to "whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive." McLee, 109 F.3d at 135.
In the instant case, Defendants concede that Plaintiff has set forth a prima facie case of employment discrimination based on race. Defendants' Memorandum at 5 ("For purposes of this motion, defendants do not contest that plaintiff can satisfy the requirements for a prima facie case."). As such, the court turns to whether Defendants have demonstrated a legitimate, nondiscriminatory reason for Plaintiff's termination.
In assessing whether the Bank has articulated a legitimate reason for selecting Plaintiff, rather than Adams or Walker, for termination, the court need not inquire as to whether Plaintiff, rather than Adams or Walker, was more qualified for the position; rather, so long as the proffered reasons are legitimate and nondiscriminatory, an employer is free to choose among qualified candidates without risking liability under Title VII. Burdine, 450 U.S. at 259, 101 S.Ct. 1089; Meiri, 759 F.2d at 995 (holding courts "must refrain from intruding into an employer's policy apparatus or second-guessing a business's decision-making process"). The law is well-established that federal courts hearing discrimination claims do not "sit as a super-personnel department" to reexamine a firm's business decision about how to evaluate the relative merits of education and experience in filling job positions. Scaria v. Rubin, 117 F.3d 652, 655 (2d Cir.1997). Once the defendant employer introduces evidence of legitimate, nondiscriminatory reasons for the challenged adverse employment action sufficient to satisfy the defendant's burden of production, the presumption created by the Plaintiff's prima facie case is rebutted, and drops from the case. Reeves, 530 U.S. at 143,
In the instant case, Defendants maintain that the decision to eliminate Plaintiff's CRA Analyst position,
The burden of proof thus shifts back to Plaintiff to establish that Defendants' proffered, legitimate reason for terminating Plaintiff, rather than Adams or Walker, was mere pretext for race discrimination.
Once an employer articulates a non-discriminatory reason for the challenged adverse employment action, "the presumption of discrimination `drops out of the picture,' .... [and] the employer will be entitled to summary judgment ... unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James, 233 F.3d at 154 (quoting Hicks, 509 U.S. at 510-11, 113 S.Ct. 2742, and citing Burdine, 450 U.S. at 255-56, 101 S.Ct. 1089). In other words, "the plaintiff — once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision — must be afforded the `opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but
Defendants' "motion for summary judgment may be defeated where `a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.'" Byrnie v. Town of Cromwell, Bd. of Education, 243 F.3d 93 (2d Cir.2001) (citing Reeves, 530 U.S. at 143, 120 S.Ct. 2097 ("the trier of fact may still consider the evidence establishing the plaintiff's prima facie case `and inferences properly drawn therefrom ... on the issue of whether the defendant's explanation is pretextual.'" (quoting Burdine, 450 U.S. at 255, n. 10, 101 S.Ct. 1089))). The creation of a genuine issue of fact as to pretext is not, without more, sufficient to rebut a defendant's legitimate non-discriminatory reason; rather, "[t]here must also be evidence that would permit a rational factfinder to infer that the discharge was actually motivated, in whole or in part, by discrimination on the basis of [the protected trait]." Grady v. Affiliated Central, Inc., 130 F.3d 553, 561 (2d Cir.1997). Nevertheless, the plaintiff's failure to produce "any evidence, other than conclusory statements unsupported by the record, to rebut the legitimate, nondiscriminatory reasons offered by [the employer for the adverse employment action], let alone evidence that could reasonably support a verdict in [plaintiff's] favor," warrants dismissal on summary judgment. Farias, 259 F.3d at 99. In this case, Plaintiff has made a substantial showing of circumstantial evidence from which, taken together, a reasonable jury could conclude that Defendants' proffered legitimate, non-discriminatory reason for terminating Plaintiff, instead of Adams or Walker, was false and, thus, a pretext for Bartholomew's race-based employment discrimination.
First, Defendants argue that the fact that both decisions to hire and terminate Plaintiff from the CRA Analyst position were made by Bartholomew who, like Plaintiff, is white, creates an inference in Defendants' favor against discrimination. Defendants' Memorandum at 6-8. The Second Circuit recognizes that "when the person who made the decision to fire was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire. This is especially true when the firing has occurred only a short time after the hiring." Grady, 130 F.3d at 560 (citing cases). As such, Defendants maintain that because both the decisions to hire and terminate Plaintiff were made by Bartholomew, and both decisions occurred within less than two years, "the same actor inference applies in favor of the defendants and greatly weakens plaintiff's claim." Defendants' Memorandum at 7.
In opposition, Plaintiff argues that Defendants' reliance on generic inferences, including that both Plaintiff and Bartholomew are Caucasian, and that Bartholomew made both decisions to hire, as well as to fire, Plaintiff, within a period of less than two years, are insufficient to overcoming the evidence of pretext on which Plaintiff relies. Plaintiff's Memorandum at 10-11. In particular, Plaintiff urges the court to reject the "same actor inference" where, as here, evidence in the record establishes questions of fact as to whether Bartholomew made the decision to hire Plaintiff, or whether Nissenbaum was involved in the decision to hire Plaintiff in the CDD. Id. In further support of summary judgment, Defendants maintain that even if Nissenbaum participated in the decision to hire Plaintiff, such fact does not negate the fact
Plaintiff has established an issue of fact exists as to whether Bartholomew or Nissenbaum made the decision to hire Plaintiff as a CRA Analyst in the CDD. See Bartholomew Dep. Tr. at 45-46 (Bartholomew admitting she could not recall whether Nissenbaum interviewed Plaintiff but that if Nissenbaum had interviewed Plaintiff, Nissenbaum would have been involved in the decision to hire Plaintiff because Nissenbaum "was very much a hands on manager."); Riley Declaration ¶ 13 (stating Plaintiff interviewed with Nissenbaum and was offered the CRA Analyst position by "someone in Human Resources."). Moreover, "the assessment of credibility and the drawing of inferences adverse to the nonmoving party is not within the province of the court in deciding a motion for summary judgment." Grady, 130 F.3d at 560. As such, even assuming, arguendo, that Bartholomew decided both the hire Plaintiff in May 2005, and to terminate Plaintiff in January 2007, the court is precluded from drawing from such facts an inference of non-discrimination against Plaintiff. Id. at 561.
Defendants next argue in support of summary judgment that Plaintiff is unable to show that she is similarly situated to Adams whose position was higher than Plaintiff's and, thus, cannot establish disparate treatment by comparing how Defendants treated Plaintiff and Adams. Defendants' Memorandum at 8-9. In opposition, Plaintiff argues that employees need not hold the same position to be considered "similarly situated." Plaintiff's Memorandum at 12-13. Plaintiff also maintains the evidence establishes Defendant considered Plaintiff similarly situated to both Adams and Walker. Id. at 13-14. In further support of summary judgment, Defendants assert that the evidence conclusively establishes Plaintiff was terminated based on poor job performance. Defendants' Reply at 6-8.
Evidence in the record establishes that Adams's Senior CRA Analyst position, although similar, was higher than Plaintiff's CRA Analyst position, with the Senior CRA Analyst having a more technical nature and responsible for computer programming, trouble-shooting and maintaining the CRA-Wiz computer program application used by the CDD. Bartholomew Declaration ¶¶ 10, 12; Bartholomew Dep. Tr. at 51; CRA Analyst Job Description (Bartholomew Declaration Exh. A); Senior CRA Analyst Job Description (Bartholomew Declaration Exh. B). This fact is undisputed.
The Second Circuit has recognized that "employees need not be of the exact same rank to be considered `similarly situated.'" Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 109 n. 7 (2d Cir.2010) (citing Hargett v. Nat'l Westminster Bank, 78 F.3d 836, 839 (2d Cir.1996)). In Hargett, an employment discrimination action in which the African-American plaintiff alleged he was more severely disciplined than two white employees who engaged in the same behavior, the Second Circuit held that the fact that the two white employees held positions lower in the corporate hierarchy than the plaintiff did not preclude a finding that the similar acts
Here, evidence in the record establishes that Adams was considered one of the three employees for reduction-in-force termination based on the decision to transfer some of the CDD work from Buffalo to Chicago. See Bartholomew Dep. Tr. at 122-23 (Bartholomew explaining she was aware of the possibility that the shift of some CDD functions from Buffalo to Chicago would result in the loss of a staff position in the Buffalo CDD; id. at 128 (Bartholomew describing conversation with Nissenbaum discussing that there were three people from whom to select the position to terminate, including Plaintiff, Walker and Adams). In his January 9, 2007 to Gawel, Manna explained that the Buffalo CDD was losing one of its positions to the Chicago CDD, and identified three positions that were subject to termination, including the CRA Analyst positions held by Plaintiff, Walker, and Adams, and requested an adverse impact report be prepared to assist in assessing which of the three positions to eliminate.
Defendants also maintain that because Walker's qualifications for the CRA Analyst position were superior to Plaintiff's given that Walker possessed an Associate's degree, and was working toward a Bachelor's degree, in Computer Information Systems which Walker received in 2008, Plaintiff cannot establish that any reasonable person would have chosen to retain Plaintiff, rather than Walker. Defendants' Memorandum at 9-11. The undisputed evidence establishes that Walker, when hired for his CRA Analyst position, held an Associate's degree in Computer Information Systems, and was pursuing a Bachelor's degree in the same field, which Walker received in the Spring of 2008. Walker Dep. Tr. at 16-17. Plaintiff, however, has never argued that she possessed skills and qualifications superior to Walker; rather, Plaintiff has alleged, and Defendants have not disputed, she was qualified for, and satisfactorily performed the CRA Analyst position from which she was terminated, while Walker remained on the job.
Moreover, the case on which Defendants rely for the proposition that "a plaintiff seeking to avoid summary judgment on the basis of a discrepancy in qualifications" must establish that her qualifications or abilities were superior to those of the retained employee's, Byrnie v. Town of Cromwell, Board of Education, 243 F.3d 93 (2d Cir.2001), is inapposite. Specifically, although in Byrnie, the Second Circuit did state that "[w]here a plaintiff seeks to prevent summary judgment on the strength of a discrepancy in qualifications ignored by an employer, that discrepancy must bear the entire burden of allowing a reasonable trier of fact to not only conclude the employer's explanation was pretextual, but that the pretext served to mask the unlawful discrimination," Byrnie, 243 F.3d at 103, the Court of Appeals
Nor is Defendants' argument, Defendants' Memorandum at 11-14, that Plaintiff's 2006 job performance was assessed at 4 compared to Walker and Adams, each of whom were assessed at 3, and that Plaintiff, in response to her 2006 mid-year review, agreed with several of the criticisms regarding Plaintiff's work, dispositive of Plaintiff's employment discrimination claims. Rather, a plethora of circumstantial evidence in the record establishes issues of fact as to whether Bartholomew manipulated the 2006 year-end ratings so as to justify terminating Plaintiff, rather than Adams or Walker, based on racial preference.
In particular, in his January 2, 2007 email, Nissenbaum requested Bartholomew reference specific incidents of Plaintiff's poor job performance to justify an undisclosed "lower rating" for Plaintiff. January 2, 2007 Nissenbaum e-mail. Bartholomew responded by sending Nissenbaum a new draft of Plaintiff's 2006 year-end job performance containing numerous criticisms regarding Plaintiff's failure to take initiative in various areas, including CRA-Wiz programming and troubleshooting, Bartholomew Reply Declaration Exh. C, which required computer skills Plaintiff admittedly did not possess. Although the record does not contain any reply from Nissenbaum to the January 3, 2007 redraft, Bartholomew nevertheless, in her January 5, 2007 e-mail, found it necessary to advise Nissenbaum that because both Plaintiff and Walker had the same job description and job responsibilities, giving both Plaintiff and Walker the same 2006 year-end overall job performance rating could pose a problem if the decision were made to terminate Plaintiff given that Plaintiff had more experience and had worked in the CRA Analyst position longer than Walker. That Bartholomew further urges Nissenbaum not to change Plaintiff's 2006 year-end overall job performance rating from 4 to 3, stating "we need to give this more thought before you decide to have me change her [Plaintiff's] rating from 4 to 3. We can justify keeping Joe [Walker] instead of her [Plaintiff] if she isn't doing the job, but we can't rate then the same for the same job. I think you are wise to speak with [AVP HR Generalist] Anthony Manna about it first," January 5, 2007 Bartholomew e-mail, strongly suggests Nissenbaum still had reservations about rating Plaintiff as low as 4.
The combination of the January 5, 2007 Bartholomew e-mail, along with the series of e-mails exchanged on January 9 and 10, 2007, between Nissenbaum, Manna, Oaks, and Gawel, seeking reassurance that Plaintiff's termination would not raise any employment discrimination issues based on race, age, or gender, begs the question — if Plaintiff were, in fact, such a poor performer, why did Defendants' managers raise concerns about legal action if Plaintiff were terminated.
Nor is Bartholomew's statement that "[i]f Dawn [Plaintiff] is truly performing at a "meets expectations" level, (which she is not,) she has a legitimate argument/case that Joe [Walker] should be the one to go if we have to lose a req." January 5, 2007 Bartholomew e-mail (italics and bracketed material added), conclusive proof that Plaintiff's job performance had fallen to an unacceptable level. Rather, the circumstances surrounding the statement calls into question Bartholomew's credibility and suggests Bartholomew is attempting to persuade Nissenbaum to acquiesce in Bartholomew's decision that the CRA Position held by Plaintiff should be eliminated, and that Plaintiff's 2006 job performance ratings of 3 were not accurate. In re Dana Corp., 574 F.3d 129, 151-52 (2d Cir. 2009) (vacating grant of summary judgment where district court improperly made credibility determination which is function of the jury and may not be determined on summary judgment). See Cornwell v. Robinson, 23 F.3d 694, 706-07 (2d Cir.1994) (holding question of witness's credibility in Title VII employment discrimination action can be circumstantial evidence of discrimination, discriminatory intent, and causation, all findings of fact for the jury which must be upheld absent clear error).
Specifically, prior to her 2006 mid-year performance review, Plaintiff had never received an overall rating worse than 3. Despite Nissenbaum's instruction to Bartholomew on August 22, 2006, Bartholomew never amended Plaintiff's 2006 EDM to reflect the additional duties Plaintiff assumed under Deterville in August 2006. On the 2006 year-end evaluations, Bartholomew gave Plaintiff an overall rating of 4, arrived at after conferring with Nissenbaum and with awareness that such rating would be used to justify Plaintiff's termination, and gave Walker and Adams overall ratings of 3, assuring their retention. Plaintiff's year-end review contains comments by Bartholomew criticizing Plaintiff for filing monthly State Report Cards late, although Adams's year-end review does not reflect the problems Adams experienced in attempting to automate the State Report Card process which was Adams's responsibility. In preparing Plaintiff's year-end assessment, Bartholomew failed to report the additional work Plaintiff performed while Adams was on maternity leave, training Walker, and working for Deterville. Although Bartholomew admitted that Plaintiff "did the bulk of the training" of Walker, Bartholomew Dep. Tr. at 88, there is no mention of such training on Plaintiff's 2006 year-end assessment's year-end review, whereas Bartholomew noted on Adams's 2006 year-end review that "Letitia has worked closely with Joe Walker, our newest Jr. Analyst, by providing technical assistance and guidance on a regular basis." Bartholomew Dep. Tr. at 88; Plaintiff's Exh. W.
Plaintiff also alleges, and Defendants have not disputed, that Plaintiff was criticized for work errors, including problems with automating the State Report Card by programming the CRA-Wiz application, although Plaintiff's CRA Analyst position did not list programming or automating reports among the job duties, whereas Adams, who was responsible for programming CRA-Wiz, including automating the State Report Card, was not criticized when the automation repeatedly failed. See Riley Declaration ¶¶ 36-37. Adams's 2006 year-end review states that
Plaintiff's Exh. W.
Defendants do not dispute Plaintiff's assertion that Adams's failure to properly automate the State Report Card required Plaintiff to make manual adjustments to the State Report Card, resulting in the report being filed late, for which Bartholomew criticized only Plaintiff, and never Adams. Riley Declaration ¶ 38. Further, Bartholomew was unable to explain why only Plaintiff was criticized for the late filing of the State Report Cards, when evidence in the record implies that the late filings occurred as a result of Adams's repeated failure to properly automate the report, such that Plaintiff was required to manually correct errors in the report. See Bartholomew Dep. Tr. at 136-37.
In response to deposition questioning, Bartholomew testified that Bartholomew failed to amend Plaintiff's EPM for 2006 to reflect that 20% of Plaintiff's work was performed for Deterville.
Defendants argue that Plaintiff cannot rely on Bartholomew's remarks regarding African-Americans to support a finding of discriminatory motivation because such comments are unrelated to any decisional process, were only sporadic, and are, too stray. Defendants' Memorandum at 14-21. Such statements include (1) Bartholomew's announcement at a meeting with other CDD employees, including Plaintiff, Adams, Walker, Deterville, and Gadley, in December 2006, that Bartholomew believed she was a "black person" in a previous life, "dreams about black people," and "loves black music," Riley Declaration ¶ 40; and Bartholomew Dep. Tr. at 220-23, (2) statements both prior to and after Adams's maternity leave that Bartholomew wanted to be Adams's baby's "white grandmother," Riley Declaration ¶ 43; Bartholomew Dep. Tr. at 228, (3) another occasion
In support of this argument, Defendants cite several cases holding that stray remarks do no constitute sufficient evidence of racial preference in an employment discrimination action. Defendants' Memorandum at 15 (citing, inter alia, Danzer v. Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir.1998) ("stray remarks, even if made by a decisionmaker, do not constitute sufficient evidence to make out a case of employment discrimination." (citing Woroski v. Nashua Corp., 31 F.3d 105, 109-10 (2d Cir.1994)))). Defendants' reference to Danzer, 151 F.3d at 56, is, however, taken out of context. In fact, in the very next line following the quoted material, the Second Circuit explains that "all that Woroski holds is that such comments, without more, cannot get a discrimination suit to a jury." Danzer, 151 F.3d at 56 (italics in original). This is consistent with the Second Circuit's more recent explication that "[t]he relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions
Defendants further assert that although Bartholomew failed to admonish Walker for his tardiness, Bartholomew also accommodated Plaintiff's requests to leave work early for appointments and family obligations, which had increased while Plaintiff worked for Bartholomew because Plaintiff was in the process of a divorce and needed to take time to meet with her attorney and
Further circumstantial evidence of racial preference is that Bartholomew had tacked to her cubicle's walls photographs of Bartholomew posing with Walker, and with another African-American employee, Abrams. Although displaying the photos, without more, would be insufficient to support a claim of race-based employment discrimination, the pictures may be considered by the jury along with the plethora of other circumstantial evidence of discrimination.
Bartholomew gave deposition testimony that prior to going on maternity leave, Adams spent much time training Walker, who had just been hired in the CDD. Bartholomew Dep. Tr. at 84-85. In contrast, other evidence in the record establishes that Adams went on maternity leave on June 29, 2006, but that Walker did not commence his CRA Analyst position in the CDD until July 10, 2006. June 29, 2006 Bartholomew e-mail. When confronted with the information regarding her e-mail, Bartholomew was not able to explain the discrepancy between her deposition statement that Adams trained Walker prior to her maternity leave, and the June 29, 2006 Bartholomew e-mail indicated Walker did not commence working in the CDD until July 10, 2006, after Adams left for maternity, thus supporting Plaintiff's contention that she, not Adams, trained Walker. See Bartholomew Dep. Tr. at 86-88 (Bartholomew acknowledging sending an e-mail on June 29, 2006 advising that Adams commenced her maternity leave that day and was expected to return to work in "mid-October," that in Adams's absence all requests were to be directed to Bartholomew, with copies to Plaintiff, and that Walker would be "joining us on July 10th...."). Bartholomew's inability to explain this apparent inconsistency further calls into question Bartholomew's credibility.
Plaintiff also maintains that a discrepancy between the purported business reason for terminating Plaintiff's CRA Analyst position given by the Bank's HR Department in responding the Plaintiff's EEOC Charge, as compared to the reasons Defendants assert in connection with the instant motion establish that one of the reasons was false. Plaintiff's Memorandum at 6-9. Arguing in further support of summary judgment, Defendants maintain that they have not presented inconsistent statements about why it terminated Plaintiff. Defendants' Reply Memorandum at 1-4.
According to Plaintiff, the EEOC Response asserts that the decision to terminate Plaintiff was made by the Bank's HR Department after obtaining an adverse impact report from the Bank's EEO Compliance Department. Plaintiff's Memorandum
In contrast, evidence Plaintiff obtained through discovery establishes that Bartholomew made the decision to terminate Plaintiff, and then manipulated Plaintiff's 2006 year-end review, including Plaintiff's job performance rating, to justify the decision. Id. at 7. Such evidence includes the January 5, 2007 Bartholomew e-mail in which Bartholomew advises Nissenbaum that unless Plaintiff receives a 2006 year-end job performance rating lower than Walker, it will be difficult to justify terminating Plaintiff, rather than Walker, given that Plaintiff and Walker have the same job description and Plaintiff had more experience as a CRA Analyst, and more time at the Bank. Id. at 7-8. As such, Plaintiff asserts that Defendants can no longer argue the decision to terminate Plaintiff was made by a neutral person in HR assessing year-end reviews. Id. at 8.
In further support of summary judgment, Defendants argue that Plaintiff presents only selected portions of the Bank's EEOC Response out of context. Defendants' Reply at 1-2. According to Defendants, HSBC North America Vice President, Equal Employment Opportunity and Affirmative Action Kelly Ann Hebeler ("Hebeler"), explains that nowhere within the Bank's EEOC Response is there any reference to anyone in HR or the EEO Department making the decision to terminate Plaintiff. Defendant's Reply at 2 (citing Hebeler Declaration at 1-3). As such, Defendants urge the court to find Plaintiff's argument regarding inconsistent reasons without merit. Id. at 2-4.
Discrepancies between the reason a defendant provides in response to an EEOC discrimination charge, as compared to the reason asserted in employment discrimination litigation action can support a reasonable jury's inference that one of the answers was false and, thus, a pretext for discrimination. E.E.O.C. v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir.1994) (allowing employment discrimination case to go to jury where EEOC introduced evidence suggesting employer gave inconsistent explanations for terminating employee from which reasonable juror could infer explanations given at trial were pretextual). Here, a plain reading of the Bank's EEOC Response establishes that upon being notified in January 2007, that Buffalo's CDD was losing a position to Chicago's CDD, "Human Resources contacted EEO Compliance
At best, the EEOC Response raises a question as to whether HR or Bartholomew made the actual decision to terminate Plaintiff, rather than Adams or Walker. Further, the EEOC Response's statement that Plaintiff's managers decided to allow Plaintiff to remain in her CRA Analyst position through February "to give her ample time to post for other positions in the bank if she so desired," EEOC Response at 3, is inconsistent with the fact that Plaintiff did not receive her 2006 year-end job performance review until February 15, 2007, which included negative comments that were unlikely to assist Plaintiff in obtaining another position. Such inconsistencies are further circumstantial evidence of pretext for discrimination.
Plaintiff has also submitted copies of eleven e-mails Plaintiff received between February 8 and December 1, 2006, from other CDD employees, including Bartholomew, Nissenbaum, and Gadley, complimenting Plaintiff for her work in the CDD. Plaintiff's Exh. Q. For example, in an email dated September 26, 2006, Gadley advised Bartholomew that "I want you to know how much I appreciated Dawn [Plaintiff] and Joe's assistance during the CRA preparation period. They have been eager to address my inquiries and assist with technical support." Id. Bartholomew, in an e-mail dated September 28, 2006, responded "Thank you for the feedback. I am very glad that my team was so helpful to you. Dawn [Plaintiff] and Joe, a special thank you to the [sic] both of you. Your hard work and team spirit is making me very proud to have you up to the plate when we are short staffed ... nice work."
Of further curiosity is the fact that although in 2005, Adams was issued an IJD because of her "very bad" and "belligerent" attitude, Bartholomew Dep. Tr. at 57, which caused Bartholomew to rate Adams only 4 for 2005, id., Adams's year-end review contained no negative comments, and Bartholomew, in 2006, arranged for Adams to be retroactively awarded a bonus for 2005, despite admitting that Adams's overall 4 rating rendered Adams ineligible for a bonus. Id. at 107-08. Despite Bartholomew's deposition testimony that in early 2006, Adams's attitude improved, and the decision was made to "take her off the IJD and we gave her a bonus," that was retroactive to 2005, Bartholomew Dep. Tr. at
Finally, although not specifically argued by Plaintiff, a plain reading of the record establishes that by the time of Plaintiff's termination from the Bank, the racial makeup of the five CDD employees who reported to Bartholomew had significantly changed. In particular, when Plaintiff commenced working in the CDD in May 2005, she replaced Liermo, who was white. Adams was hired in August 2005 to replace Russo, who was also white. Walker was hired in July 2006.
In short, the record contains a plethora of circumstantial evidence on which a reasonable jury could infer Defendants' proffered legitimate, non-discriminatory reason — Plaintiff's supposed weak job performance — given for terminating Plaintiff was mere pretext for discriminating against Plaintiff based on her race. As such, Defendants' motion seeking summary judgment should be DENIED as to the Bank.
Based on the foregoing, Defendants' motion for summary judgment (Doc. No. 26), should be GRANTED in part, with regard to the request that HSBC USA be dismissed as a defendant to the action, but otherwise DENIED as to the Bank.
SO ORDERED.