| Short v Deutsche Bank Sec., Inc. |
| 2010 NY Slip Op 09078 [79 AD3d 503] |
| December 9, 2010 |
| Appellate Division, First Department |
| Leigh Short, Appellant, v Deutsche Bank Securities, Inc.,Respondent. |
—[*1] Sidley Austin Brown & Wood, LLP, New York (Laura H. Allen of counsel), forrespondent.
Order, Supreme Court, New York County (Debra A. James, J.), entered June 24, 2009, which,to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgmentdismissing the causes of action alleging employment discrimination under Executive Law § 296(the State Human Rights Law) and Administrative Code of City of NY § 8-107 (1) (a) (the CityHuman Rights Law), unanimously affirmed, without costs.
Plaintiff, an Australian citizen, was employed by Deutsche Bank as a salesperson working on Asianand Australian accounts from March 2001 until she resigned on May 5, 2004, when her visa expired.At the end of 2001, she received a guaranteed bonus; the next year she was one of the top performerson the desk and received the highest bonus awarded. Plaintiff alleges that starting in late 2003, themanager of the Australasian desk, Raymond Kim, tried to push her out by not talking to her, criticizingher unfairly, reassigning her Asian accounts (which accounted for a large portion of her revenue) tomen, and, ultimately, giving her a bonus lower than the amount she received the previous year andabout 30% less than the bonuses he gave his two favorite male employees, one of whom had onlyworked there for six months.
After resigning, plaintiff filed a charge with the Equal Employment Opportunity Commission(EEOC), alleging that Kim created a "misogynistic culture" in which men entertained clients at stripclubs and that all four female salespeople who were in the department when she arrived had left by2004. Kim was terminated by defendant after receiving a written warning for making an inappropriateadvance to a female employee and after an internal investigation found that he had improperly chargedsuch outings to the company. The EEOC found reasonable cause to believe that defendant haddiscriminated against plaintiff and a class of similarly situated females on its Asian and Australian Salesdesks on the basis of sex, and that evidence indicated "discrimination regarding compensation as well asthe terms, conditions or privileges of their employment." The EEOC finding provides some evidence ofdiscrimination (Philbrook v Ansonia Bd. of Educ., 757 F2d 476, 481 [2d Cir 1985],affd 479 US 60 [1986]). However, such a finding is by no means dispositive (id.).
To establish a constructive discharge, plaintiff was required to produce evidence that her employer"deliberately created working conditions so intolerable, difficult or unpleasant that a reasonable personwould have felt compelled to resign" (Mascola v City Univ. of N.Y., 14 AD3d [*2]409, 410 [2005], citing Stetson v NYNEX Serv. Co., 995 F2d355, 361 [2d Cir 1993]). Even when the evidence is viewed in a light most favorable to her, plaintiff'scomplaints about work assignments and bonus compensation do not demonstrate an intolerable workenvironment that would lead a reasonable person to feel compelled to resign. Moreover, defendantshowed that plaintiff had long planned to stop working in 2004 to travel and pursue other interests andthat she acted in accordance with that plan by taking steps to leave New York before defendant hadeven completed its investigation into her charges. She rejected out of hand defendant's offers ofemployment in positions that would not report directly to Kim.
As for plaintiff's claim of unequal treatment with respect to the terms and conditions of employmentbased on gender, defendant does not dispute that the reassignment of some or all of plaintiff's Asianaccounts and the decrease in her bonus compensation were adverse employment actions but contendsthat plaintiff did not make a prima facie showing that the actions occurred under circumstances givingrise to an inference of discrimination, and that, in any event, the actions were taken for legitimate,nondiscriminatory reasons (see Forrest vJewish Guild for the Blind, 3 NY3d 295, 305 [2004]). The threshold for a prima facieshowing is low (see id.). Viewed as a whole, the record evinces circumstances from which afactfinder could infer discrimination (see generally Chambers v TRM Copy Ctrs. Corp., 43F3d 29, 37 [2d Cir 1994]). Among other things, there was evidence that salespeople on the deskperceived Kim as favoring male salespersons, expected women to be "subservient," had a "chauvinistic"attitude toward women, and particularly disliked plaintiff, whom he perceived as disrespectful to him.
However, with respect to the reassignment of Asian accounts, defendant submitted evidence thatthe decision to have plaintiff focus on Australian product was initiated not by Kim, but by the new headof Australian product, and that the decision was made for legitimate, nondiscriminatory reasons relatedto staffing and the desire to rebuild the Australian desk. Accordingly, defendant successfully rebuttedplaintiff's prima facie showing of discrimination (Ferrante v American Lung Assn., 90 NY2d623, 629 [1997]; St. Mary's Honor Center v Hicks, 509 US 502, 507 [1993]). Plaintiff didnot submit evidence sufficient to raise an issue of fact whether those explanations were pretextual(id.).
With respect to the award of bonuses, defendant relies largely on the fact that plaintiff received topbonuses her first two years and that, in 2003, another top female salesperson, Elaine Yu, received thesecond highest bonus and plaintiff received the third highest. Since prior equal treatment of an employeeundermines an inference of subsequent discrimination (see Chin v ABN-AMRO N. Am., Inc.,463 F Supp 2d 294, 303-304 [ED NY 2006]), plaintiff fails to establish a prima facie case of genderdiscrimination. Assuming arguendo, that plaintiff had in fact established a prima facie case ofdiscrimination based on the way bonuses were allocated in 2003, defendant nevertheless successfullyrebuts such claim inasmuch as Kim explained that the reason for the diminution of plaintiff's bonus wasthat she had not improved her results to the same degree as had others and had shown poor teamwork.Plaintiff presents insufficient evidence to raise an issue of fact as to whether the reasons proffered bydefendant justifying the allocation of bonuses was pretextual.
For the foregoing reasons, summary judgment was properly granted in defendant's favor withrespect to plaintiff's claim under the New York City Human Rights Law. A claim under that statute lieswhen it is "proven by a preponderance of the evidence that she [the plaintiff] has been treated less wellthan other employees because of her gender" (Williams v New York City Hous. Auth., 61 AD3d 62, 78 [2009], lvdenied 13 NY3d 702 [2009]). While such a [*3]determination isordinarily one for the trier of fact (id.), here it is clear that the disparate treatment alleged wasattributable to legitimate business and nondiscriminatory reasons rather than plaintiff's gender.
Plaintiff failed to present evidence of a hostile work environment under the City Human Rights Law.The various complaints about Kim's conduct in the workplace were nothing more than non-actionablepetty slights and minor inconveniences (see Williams, 61 AD3d at 79-80), which in any eventmay be viewed by a reasonable employee as a function of Kim's management style, unrelated to genderdiscrimination.
Plaintiff did not present evidence of widespread acts of intentional discrimination against individuals,as is required to bring a "pattern and practice" discrimination claim (Robinson v Metro-NorthCommuter R.R. Co., 267 F3d 147, 158 [2d Cir 2001], cert denied 535 US 951 [2002]).Thus, it is unnecessary to reach the issue whether an individual plaintiff can assert such a claim.Concur—Friedman, J.P., Sweeny, Catterson, Renwick and RomÁn, JJ. [Prior CaseHistory: 2009 NY Slip Op 31388(U).]