Opinion
116046/2003.
Decided April 24, 2006.
Defendant JPMorgan Chase Co's ("JPMC") motion, pursuant to CPLR 3212, for summary judgment dismissing the complaint in its entirety is granted in part and denied in part as more fully set forth below.
In this action, plaintiff Patricia E. Quinn seeks damages for violations of New York City and New York State Human Rights Laws and New York Equal Pay Statute. JPMC now moves to dismiss the complaint in its entirety.
The relevant facts are contained in the moving papers and are not in dispute unless otherwise noted. Plaintiff, a native born Ecuadorean who moved to the United States at the age of age of six, began working at Chase Manhattan Bank ("Chase") in 1973 as a secretary. By 1985, she had reached the rank of Second Vice President. In that year, plaintiff left Chase to work at other banks. In 1989, plaintiff returned to Chase as a Vice President, marketing and selling foreign exchange ("FX") products. In 1996, Chase merged with Chemical Bank, and, in the resultant restructuring, plaintiff was assigned to work with a team headed by Paul Farrell. In 1997, Farrell's team broke up and plaintiff was reassigned to the Global Trading Division, Multinational Sales Desk, where she marketed and sold FX products to Chase's Latin American clients. In 1998, pursuant to a restructuring, the division plaintiff worked in was reorganized as the Latin America Derivatives and Foreign Exchange Sales Desk ("Latin America Desk"). Robert Lichten became plaintiff's supervisor.
On January 1, 2001, Chase merged with J.P. Morgan Company, forming JPMC, the defendant in this action. The Latin America Desk was again reorganized, this time to incorporate J.P. Mogan's Latin America Sales Desk, and plaintiff's position was eliminated. Plaintiff was offered a position the Small Business Desk, where she handled FX transactions for small businesses. At the Small Business Desk, plaintiff worked under Brenda Rosado and Paul Farrell, who had been plaintiff's supervisor in 1996. At the Small Business Desk, Quinn was assigned to the New Jersey territory and was given a production goal of $2,000,000 for 2001. Plaintiff missed her goal for the year by approximately $500,000. In January of 2002, plaintiff received a bonus of $25,000 and a negative performance evaluation from Farrell. Plaintiff's production goal for 2002 was set at $3,000,000. In October of 2002, plaintiff met with Farrell, Rosado, and Anne Marie Yarwood, from JPMC's Human Resources Department. At that meeting, Rosado and Farrell gave plaintiff a mid-year performance review draft report prepared which indicated that, as of October of 2002, plaintiff was not on track to meet her production goals for the year. Plaintiff met with Yarwood in November of 2002 to discuss her performance.
In December of 2002, plaintiff took a leave of absence for medical reasons, and applied to JPMC's disability insurer, Unum Life Insurance Company of America ("Unum"), for short term and long term disability benefits. Unum denied the benefits. By June of 2003, plaintiff had not returned to work. On June 11, 2003, JPMC terminated her employment. In December of 2003, plaintiff filed an application for Workers Compensation, in which she alleged she suffered from anxiety and depression caused by discriminatory treatment at her work place.
Plaintiff commenced this action on September 12, 2003. In her verified amended complaint, plaintiff alleges that JPMC discriminated against her on the basis of her race, gender, and age and maintained a hostile work environment. Specifically, she alleges that she received lower pay than her white male counterparts and that she was demoted and eventually fired as a result of her age, race and gender. She also alleges that her supervisor, Rob Lichten, maintained an overtly discriminatory work environment, making racist comments, taking clients to strip clubs, and permitting employees to make demeaning comments about individuals, including plaintiff, because of their age, race, and gender. Plaintiff also alleges that her treatment was part of a pattern and practice at JPMC of not promoting older minority women and paying women less than their male counterparts. Plaintiff alleges causes of action premised upon New York Executive § 290, et seq., New York City Administrative Code § 8-101, et seq., and New York Labor Law § 194.
JPMC now moves for summary judgment dismissing the complaint in its entirety. JPMC raises five separate arguments. First, JPMC argues that many of the alleged events that constitute plaintiff's claims occurred prior to the statute of limitations period and are thus time barred. Second, JPMC argues that plaintiff cannot identify one male employee who was similarly situated to her who received higher pay for similar work and performance. Third, JPMC argues that there is insufficient evidence in the record to support plaintiff's hostile work environment claim. Fourth, with respect to plaintiff's discrimination claims, JPMC argues that there is no evidence in the record that plaintiff suffered an adverse employment action as a result of her protected status. Alternatively, JPMC argues that it had a legitimate, non-discriminatory reasons for plaintiff's reassignment and termination. Finally, JPMC argues that, as a matter of law, plaintiff cannot individually assert a claim for a pattern and practice of discrimination. Alternatively, JPMC argues that there is no evidence to establish such a pattern and practice, or the existence of a policy behind it.
The proponent of a motion for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence in an admissible form to demonstrate the absence of any material issues of fact ( Guiffrida v. Citibank 100 NY2d 72, 81). Once the movant has made such a showing the burden shifts to the party opposing the motion to produce evidence in an admissible form sufficient to establish the existence of any material issues of fact requiring a trial of the action ( Id.). The court will consider each argument in turn.
Statute of Limitations
JPMCs argues that, as plaintiff did not commence this action until September 12, 2003, plaintiff cannot recover for violations of the New York State and City Human Rights Laws that occurred prior to September 12, 2000 and for violations of the New York Equal Pay Law that occurred prior to September 12, 1997. Specifically, JPMC seeks to strike all the paragraphs in the complaint setting forth unequal pay claims that occurred prior to September 12, 1997, and all the paragraphs alleging discriminatory and harassing conduct that occurred prior to September 12, 2000. Plaintiff responds that, with respect to her claim for hostile work environment, where at least one of the acts constituting the hostile work environment claim occurred within the statutory period, than the hostile work environment claim itself is timely, even where some of the conduct supporting the claim occurred without the period.
A claim for wage discrimination based upon sex brought under New York Equal Pay Law is governed by a six year statute of limitations. (NY Labor Law § 198.) Claims for discrimination and hostile work environment brought under New York State and New York City Human Rights Laws are governed by a three year statute of limitations. (NY Executive Law § 297; CPLR § 214; NYC Admin Code § 8-502[d].) Normally, a discrete discriminatory act which occurred outside the relevant limitations period is not actionable, even when it relates to other acts which occurred within the period. ( National RR Passenger Corp. v. Morgan, 536 US 101, 113.) However, a hostile work environment consists of a series of separate discriminatory acts that collectively constitute one unlawful employment practice. ( Id. at 117.) Thus, so long as at least one discriminatory act falls within the statutory period, the action is timely. ( Id.)
Accordingly, any claims for discrimination arising from discrete acts occurring before September 12, 2000 are time barred. Any claims for wage discrimination arising from discrete acts that occurred before September 12, 1997 are likewise barred. However, any acts alleged to support a hostile work environment claim that occurred prior to September 12, 2000 are actionable, provided they are part of an overall hostile work environment claim of which at least one act occurred within the statutory period. The court will consider the impact of the statute of limitations below, when it considers each claim individually.
Hostile Work Environment
JPMC argues that there is insufficient evidence in the record to establish a claim for hostile work environment. Specifically, JPMC argues that the offensive conduct plaintiff alleges constitutes nothing more than a series of stray remarks and are not sufficiently pervasive enough to support the claim. Plaintiff argues that, considering the totality of the circumstances, the conduct alleged more than adequately supports her claim.
"A hostile work environment exists when, as judged by a reasonable person, it is permeated by discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the circumstances of plaintiff's employment." ( McIntyre v. Manhattan Ford, Lincoln-Mercury, 175 Misc 2d 795, 802 [Sup. Ct., NY County, 1997] [ citing Harris v. Forklift Sys. 510 US 17, 21]). To establish a prima facie case for a hostile work environment, plaintiff must show that (1) she is a member of a protected class, (2) the conduct or words upon which her claim is predicated were unwelcome, (3) the conduct or words were prompted solely because of her protected status, (4) the conduct or words created a hostile work environment which affected a term or condition of her employment, and (5) that the defendant is liable for the conduct. (Id. [citing Trotta v. Mobil Oil Corp, 788 F Supp 2d 1336 [SDNY 1992] and Danna v. New York Telephone Co. 752 F Supp 2d 594 [SDNY 1990].) The conduct complained of must be both objectively and subjectively offensive; that is, a reasonable person must find it offensive and the plaintiff perceive it as such. ( San Juan v. Leach, 278 AD2d 299, 301 [2nd Dept 2000].) "Generally, isolated remarks or occasional episodes of harassment will not support a finding of a hostile work environment; in order to be actionable, the offensive conduct must be pervasive." ( Father Belle Community Centre v. New York State Division on Human Rights, 221 AD2d 44, 51 [4th Dept., 1996] appeal denied 89 NY2d 809). However, when other evidence of discrimination is introduced, isolated instances of offensive behavior will support a hostile work environment claim sufficiently to survive summary judgment. ( Danzer v. Norden Systems, Inc., 151 F3d 50, 56 [2nd Cir 1996].)
Here, the conduct alleged, considered in conjunction with the other evidence of discrimination plaintiff has set forth, supports plaintiff's claim for hostile work environment. Plaintiff has alleged that, when he was her supervisor, Rob Lichten referred to Latin Americans as "f — ing wetbacks", stated frequently that he hated Mexicans, once stated that Latin American men enjoyed going to strip clubs, and once stated that he was told to go easy on plaintiff because she was an older working mother. Plaintiff has also alleged that a co-worker once told plaintiff she was as old as the co-worker's mother, and that another co-worker occasionally referred to plaintiff as an "old fart." Plaintiff has also alleged that, following Chase's merger with JPMorgan, three of the four positions Lichten chose to eliminate on the Latin American desk were held by Hispanic women, and that the Small Business Desk to where plaintiff was offered a position was less lucrative and was staffed mostly by minority employees. Taking these facts, a jury could reasonably conclude that plaintiff's work environment was sufficiently permeated with hostility.
JPMC's argument that the hostile work environment claim is time-barred is without merit. JPMC argues that there is no evidence in the record that plaintiff was the target of any offensive behavior targeted at her because of her protected status after she was transferred to the Small Business Desk after January of 2001. Since plaintiff cannot identify the specific dates of any of the conduct, JPMC argues that the hostile work environment claim must be dismissed as untimely. However, this argument does not establish conclusively that plaintiff's claim is untimely. Rather it merely raises an issue of fact on that question. If JPMC could show that no offensive conduct occurred after September 12, 2000, then summary judgment would be warranted. However, JPMC has made no such showing, so issues of fact remain. Accordingly, the portion of JPMC's motion seeking to dismiss plaintiff's hostile work environment claim is denied.
Discrimination
JPMC contends that plaintiff's discrimination claims likewise must fail, because plaintiff cannot establish that she was the target of an adverse employment action. Alternatively, JPMC argues that any adverse employment action was taken for legitimate, non-discriminatory reasons.
Plaintiff argues that she was subject to four separate adverse employment actions. She also argues that JPMC's proffered reasons for the actions are pretextual, and that JPMC actually acted with racial animus.
A plaintiff asserting a claim of discrimination under Executive Law § 296 or § 8-107 of the New York City Administrative Code has the initial burden to establish a prima facie case. ( Forrest v. Jewish Guild for the Blind 3 NY3d 295, 305.) Plaintiff must show that (1) she is a member of a protected class, (2) she was qualified to hold the position, (3) she was terminated from employment or suffered another adverse employment action, and (4) the discharge or action occurred under circumstances that would give rise to an inference of discrimination. ( Id.) Plaintiff need only make a de minimis showing to establish her prima facie case. ( Schwaller v. Squire Sanders Dempsey, 249 AD2d 195, 196 [1st Dept 1998].) The burden then shifts to the defendant to rebut the presumption of discrimination by establishing non-discriminatory reasons for its employment action. ( Forrest, 3 NY3d at 305.) Then, the burden shifts back to plaintiff to show that the reasons defendant has given are pretextual and the real reason is discriminatory. ( Id.)
For the purposes of this motion, JPMC does not dispute that plaintiff was a member of protected classes and that she was qualified for the positions she held at JPMC. Thus, the question turns to whether plaintiff was subject to an adverse employment action and whether the action was taken for discriminatory reasons. Plaintiff has set forth four separate adverse employment actions. First plaintiff alleges that, when Robert Lichten became plaintiff's supervisor in 1998, he reassigned plaintiff's lucrative accounts to youger, white male employees and assigned plaintiff to cover the Andes, an extremely unprofitable region. Second, plaintiff alleges that, in 1999, Lichten allowed Brian Tomeo, a white male who was younger than plaintiff, to take credit for a transaction that should have been credited to plaintiff, thus costing plaintiff a valuable bonus. Third, plaintiff agues that her termination from the Latin America Desk and subsequent reassignment to the Small Business Desk was a demotion. Finally, plaintiff contends that her ultimate termination in June of 2003 was an adverse employment action. The court consider each of plaintiff's proffered discriminatory acts in turn.
The first two acts set forth by plaintiff, Lichten's reassignment of plaintiff's accounts in 1998, and his allowing another employee to take credit for a transaction that should have been credited to plaintiff in 1999, both occurred prior to September 12, 2000. Thus, even assuming arguendo they were actionable discriminatory acts, they are time barred.
With regards to the elimination of plaintiff's position on the Latin America Desk and her reassignment to the small business desk, JPMC argues that plaintiff was not in fact demoted because she retained the same base salary and job title. In response, plaintiff argues that her reassignment to the Small Business desk was a demotion, because while she maintained the same title and base salary, she received a substantially smaller merit bonus on the desk, due to the fact that she was assigned to an unprofitable territory. Consequenlty, plaintiff alleges her total compensation for the year of 2001 was $100,000 less than ther compensation for 2000.
Adverse employment actions have been held to include termination of employment, a demotion evidenced by a decrease in salary or wage, a less distinguished title, a material loss of benefits, or a significant diminution in responsibility. ( Feingold v. New York, 366 F3d 138, 152 [2nd Cir 2004].) An involuntary transfer may constitute an adverse employment action where it creates a material disadvantage with respect to the terms of a plaintiff's employment. ( Williams v. R.H. Donnelley Corp., 368 F3d 123, 128 [2nd Cir 2004].) Here, plaintiff has raised a question of fact as to whether her transfer from the Latin America Desk to the Small Business Desk was an adverse employment action. While she may have maintained the same base salary and title, she received a substantially smaller bonus, which she alleges was due to the fact that she was assigned a very unprofitable territory at the Small Business Desk. From this evidence, a jury could conclude that she suffered an adverse employment action.
Alternatively, JPMC argues that plaintiff was transferred because, as Chase and JPMorgan's Latin America Desks were being combined, there was a need to reorganize the two units and eliminate redundant positions. JPMC argues that Lichten elected not to keep plaintiff because plaintiff was unable to master the more profitable derivative transactions that other employees on the desk were executing, such as interest rate swaps, and was still executing mainly spot transactions, such as straight currency exchanges, which were far less lucrative than derivative transactions. To support this claim, JPMC cites self evaluation forms prepared by plaintiff, in which she acknowledged short comings in her knowledge of derivative products, and a memo prepared by Erica Denmark, a Human Resources Manager responsible for the Latin America Desk. In the Memo, Denmark noted that plaintiff did not incorporate derivative products into her transactions, and that her transactions created only nominal profits compared to the profits being created by other team members. Thus, the memo concluded, plaintiff would not continue at the Latin America Desk.
Plaintiff has set forth evidence sufficient to create a material issue of fact as to whether JPMC's purported reasons for her reassignment were pretextual. Plaintiff alleges that any decrease in her profitability was due not to her inability to execute derivative transactions but to the fact that Lichten reassigned most of her accounts to young white males, leaving her only with clients in the economically depressed Andes region. Plaintiff alleges that her inability to market derivatives products to these clients was due in large part to lack of demand. Coupling this allegation with plaintiff's allegations concerning Lichten's discriminatory comments and the fact that three of the four employees whose positions on the Latin America Desk were terminated were females, a jury could reasonably conclude that plaintiff was transferred to the Small Business Desk for discriminatory reasons.
Turning finally to plaintiff's termination, JPMC alleges that plaintiff was terminated because she was absent from work for more than twenty five weeks on a disability, that she had been denied long term disability benefits by JPMC's disability insurance carrier, and that she had not indicated when, if ever, she would return to work. JPMC has submitted a written copy of its disability leave policy, which clearly states that, if an employee has a disability which does not allow them to return to work for more than twenty five weeks, and the employee is not approved for long term disability benefits, JPMC will terminate the employment. JPMC has also submitted a letter from Unum, stating that it was denying plaintiff's disability claim, and deposition testimony from John Vega, a Vice President of Corporate Employee Relations at JPMC, who stated that he recommended terminating plaintiff's employment because she had been absent for twenty six weeks and had not indicated that she would be returning to work. Since plaintiff had been out of work for twenty six weeks and had not indicated that she would be returning, JPMC argues that she was terminated pursuant to the policy and not because of any protected status.
There is no evidence in the record sufficient to establish that plaintiff was terminated because of her protected characteristics or that JPMC's purported reasons were pretextual. While plaintiff alleges that the cause of her disability was stress caused by JPMC's discriminatory treatment, there is no showing JPMC elected to terminate plaintiff because of her protected status and not because of her failure to return to work. Plaintiff's remaining arguments are without merit on this point.
Accordingly, JPMC's motion is granted to the extent that plaintiff's claims for discrimination arising from her termination and from any action occurring prior to September 12, 2000 and denied as to plaintiff's claim for discrimination arising from her transfer to the Small Business Desk.
Pattern and Practice Claim
JPMC argues that plaintiff's complaint must be dismissed to the extent it alleges a cause of action for a pattern and practice of discrimination, as such a claim is only permissible in a class action setting and not on an individual basis. JPMC argues that the Court of Appeals for the Second Circuit has not determined that individuals may maintain causes of action for "pattern and practice" discrimination, and that the district courts in the Second Circuit have expressed doubt that individuals could bring such claims. Alternatively, JPMC argues that there is insufficient evidence in the record to support a pattern and practice claim.
In opposition, plaintiff notes that, while federal district courts in New York have not yet allowed an individual to proceed with a pattern and practice claim, no district court in New York has dismissed a pattern and practice claim solely because it was brought by an individual. Moreover, plaintiff cites at least one New York State court case where such a claim was allowed in a non-class action setting. Plaintiff also contends that the record contains sufficient evidence to support a pattern and practice claim.
Pattern and practice claims focus on allegations of widespread acts of intentional discrimination against individuals. ( Robinson v. MetroNorth Commuter Railroad Co., 267 F3d 147, 158 [2nd Cir 2001].) Plaintiffs cannot simply show a few isolated instances of discrimination; rather they must show that "intentional discrimination was defendants standard operating procedure'". ( Id.) To establish liability, plaintiffs must initially make a prima facie showing of a policy or pattern of intentional discrimination against the protected group, which is usually demonstrated by statistical evidence showing defendant's past treatment of the protected class and testimonial evidence from individual members of the protected class detailing specific instances of discrimination. ( Id.) Once plaintiff has made its showing, the burden than shifts to defendant to demonstrate that plaintiff's evidence is either inaccurate or insignificant. ( Id. at 159.) Once the defendant has made such showing, the finder of fact must determine whether plaintiff has shown, by a preponderance of the evidence, that defendant has engaged in a pattern or practice of discrimination. ( Id.) If the fact finder concludes that such defendant has engaged in a pattern or practice of intentional discrimination, then it is presumed that any adverse employment practice during the period in which the discriminatory policy was in force was made pursuant to that policy. ( Id.) The substantial affect of this assumption is that a plaintiff need not make the usual showing that the adverse employment action was discriminatory, or that defendant's proffered legitimate reason was pretextual. ( Id.) Rather, the burden shifts to the defendant to demonstrate that the adverse employment action was done for legal reasons and was not discriminatory. ( Victory v. Hewlett-Packard Co., 34 F Supp 2d 809, 820 [EDNY 1999].)
While federal district courts sitting in New York State have expressed doubt concerning the applicability of a pattern and practice claim in an individual action ( see, e.g., Blake v. Bronx Lebanon Hospital Center, 2003 US Dist LEXIS 13857 [SDNY 2003]) plaintiff has pointed to at least one New York State court that accepted such a claim in a non-class action setting, namely Hughes v. UPS (2004 NY Slip Op 510008 [NY Sup Ct 2004].) While JPMC points out that there were two plaintiffs in Hughes, other than that fact, there is nothing in that case that would suggest that an individual may not bring a pattern and practice claim. Indeed, in none of the cases cited by JPMC is there any explanation as to why an individual plaintiff who has demonstrated a pattern and practice of discrimination should not be entitled to recover under such a theory. Accordingly, the court finds that plaintiff may individually bring such a claim.
The court further finds that record contains adequate evidence to support plaintiff's pattern and practice claim. In her complaint, plaintiff has alleged that her treatment was part of a pattern and practice at JPMC of not promoting older minority women and paying women less than their male counterparts. Plaintiff has submitted an expert report, based upon demographic information provided by JPMC during discovery, that shows that, historically, females in executive positions (vice presidents, senior vice presidents, and managing directors) receive less compensation than males in executive positions. The report specifically indicates that the median salary of a Hispanic female vice president is typically $20,000 to $27,000 lower than the median salary of a white male vice president. Plaintiff has also submitted deposition testimony from Brenda Rosado, in which she states that she believes that minority women are paid less than white men at JPMC. Plaintiff has also submitted deposition testimony from Rosado and Lucy Malave (a human resources representative), in which both state they believe minority women are under-represented at the Managing Director Level. Plaintiff has also alleged at least one instance of discriminatory conduct, namely her transfer from the Latin America Desk to the Small Business Desk. The issues JPMC raises with the data used to prepare the report are issues of fact that should be resolved by a fact finder. Accordingly, the portion of JPMC's motion dismissing plaintiff's claim that she was injured by a discriminatory pattern and practice employed by JPMC is denied.
Equal Pay Act Violations
JPMC finally contends that there is no evidence to support plaintiff's New York Equal Pay Act claim. Specifically, JPMC contends that plaintiff cannot show one male employee who received higher pay for performing the same work as she did. New York Labor Law § 194 provides that
No employee shall be paid a wage at a rate less than the rate at which an employee of the opposite sex in the same establishment is paid for equal work on a job the performance of which requires equal skill, effort and responsibility, and which is performed under similar conditions.
To establish a violation of New York Equal Pay Act, the plaintiff must show that (1) the employer pays different wages to members of the opposite sex, (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility, and (3) the jobs are performed under similar working conditions. ( Rose v. Goldman, Sachs Co., 163 F Supp 2d 238, 242 [SDNY 2001].)
Contrary to JPMC's arguments, plaintiff has set forth facts sufficient to allege a cause of action for unequal pay. The expert report referenced above shows significant pay disparities between male and female vice presidents. While plaintiff's inability to identify a single male who received more pay for the same level of work may pose problems for her case at trial, she has set forth sufficient evidence to survive summary judgment. JPMC's argument that some males received higher bonuses than plaintiff because they were higher revenue producers merely raises an issue of fact for trial. Thus, defendant's motion for summary judgment is denied as to this ground.
Accordingly, it is hereby
ORDERED that defendant JPMorgan Chase Co.'s motion is granted to the extent that plaintiff's claims for discrimination arising from acts prior to September 12, 2000 and from plaintiff's termination, and the motion is denied as to the remainder of the relief sought.
This constitutes the decision and order of the Court.