Summary
considering quid pro quo harassment and hostile work environment claims together
Summary of this case from Reid v. Ingerman Smith LLPOpinion
03 Civ. 104 (CBM)
May 19, 2004
Nicole Feder, Benedict P. Morelli Associates, New York, NY, For Plaintiff
Timothy Madden, O'Melveny Myers, New York, NY, For Defendant
OPINION
This case arises out of plaintiff Farouk Soliman's employment with defendant Deutsche Bank. Plaintiff charges defendant with race discrimination, sexual harassment, and retaliation in violation of New York City Human Rights Law, § 8-107(7), 42 U.S.C. § 2000 et seq., ("Title VII"), and New York State Human Rights Law, § 290 et seq. Defendant moves for summary judgment dismissing all of plaintiff s claims. For the reasons stated below, defendant's motion is GRANTED.
BACKGROUND
Plaintiff Farouk Soliman, an Egyptian American male, was hired by defendant Deutsche Bank (hereinafter "the Bank") in August 1995. Soliman Dep. at 14, 549-50. In early 1999, Olaf Pletzinger hired plaintiff as a Vice President and Senior Project Manager in the Bank's Inhouse Consulting Group ("IHC"), a project-oriented group providing consulting services. Def.'s Rule 56.1 Stmt, ¶ 1; Soliman Dep. at 15-16, 21. Around the same time, Pletzinger also hired Marc McKenzie as the other Senior Project Manager in IHC. Def.'s Rule 56.1 Stmt, ¶ 2. Pletzinger, Soliman, and McKenzie constituted the senior management of IHC, with Soliman and McKenzie reporting directly to Pletzinger. Soliman Dep. at 24; McKenzie Dep. at 9. In turn, junior consultants reported to Soliman and McKenzie.
A. Sexual Harassment
Plaintiff avers that Pletzinger, an allegedly homosexual male, began to sexually harass him from the first day of his employment with IHC in 1999. Complaint at ¶ 15. At the same time, he and Pletzinger "enjoyed a good working relationship from both a personal and professional perspective" until late in 2000 when either he learned of Pletzinger's purported sexuality or he declined to accompany Pletzinger to a "gay bar." Soliman Dep. at 517-518. At that time, he realized "in hindsight" that Pletzinger's acts were sexual advances. Id. at 130, 396.
1. Plaintiff's evidence of harassment
Plaintiff points to the following to substantiate his claim of harassment:
Social Interactions. Plaintiff accompanied Pletzinger and other Bank employees to a "gay bar" at Pletzinger's suggestion on two occasions.Id. at 70-74. Pletzinger invited him to a bar to celebrate his birthday in October of 2000, suggesting the same "gay bar" as an option, but Soliman declined. Id. at 77, 396, 518. Pletzinger asked Soliman to go out with him after happy hours, from which Soliman inferred that Pletzinger was inviting him to the same "gay bar," although Pletzinger never explicitly said so. Id. at 59-60. Pletzinger invited Soliman to the movies 10-20 times, to his home, or invited himself to Soliman's home.Id. at 109-10, 144-45. Soliman interpreted these invitation as sexual advances, even though Pletzinger never said or did anything to indicate that anything sexual would take place. Id. at 111. Pletzinger invited himself to social events such as ski trips and barbecues at which Soliman was present without Soliman having invited him, although Soliman also acknowledges that other Bank employees could have invited Pletzinger.Id. at 63-64, 160-64. Soliman claims that on a ski trip in Vermont in January of 2000, Pletzinger assigned sleeping accommodations such that he and plaintiff would sleep in the same room, although the room had two beds and everyone else on the trip shared a room with one other person in the same fashion. Id. at 191-94. Moreover, he states that Pletzinger invited himself on Soliman's vacations, suggesting that he and Soliman meet up or stay in the same hotel in separate rooms when they were both going to be in the same European city. Id. at 132.
Touching Physical Proximity. According to plaintiff, Pletzinger moved his chair to sit close to Soliman in Soliman's office, leaving approximately six inches between them, and often would not move away when Soliman asked him to. Id. at 97-100. Soliman further claims that at IHC meetings, in the context of talking about team-building, Pletzinger said that they had a "close relationship" while he touched plaintiff's shoulders, thereby implying to his co-workers that they were "close" on an intimate level, not in terms of their work. Id. at 179-84. Although he was present at these meetings, McKenzie does not recall Pletzinger putting his hands on Soliman's shoulders. McKenzie Dep. at 133. Soliman also claims that Pletzinger touched him above his elbow on a number of occasions, in a fashion that Soliman characterizes as both "playful" and "the way I'd grab my girlfriend's arm," but Soliman always pulled away. Soliman Dep. at 105, 119. Soliman's then-girlfriend, Nina Ostrovsky, who also worked at IHC as a junior consultant, does not recall Soliman telling her that Pletzinger touched him, nor did she ever witness Pletzinger touching him, on the arms or otherwise. Ostrovsky Dep. at 51. Similarly, McKenzie never saw Pletzinger touch any part of Soliman's body in any way, nor did Soliman ever tell him that Pletzinger did so. McKenzie Dep. at 127, 136.
Favorable Treatment. In early 2000, Pletzinger awarded Soliman a $120,000 bonus which Soliman felt was disproportionate to his $50,000 bonus from the previous year. Soliman Dep. at 208-210. However, Pletzinger similarly increased McKenzie's bonus that year, raising it from $50,000 or $60,000 in 1999 to $200,000 in 2000. McKenzie Dep. at 171. Soliman also claims that Pletzinger stated that he was considering nominating Soliman to become a director because Soliman had befriended him. Soliman Dep. at 208-211. Soliman also believed Pletzinger was expressing an improper preference for him by leaving Soliman in charge whenever he was out of town because Pletzinger could have just as easily left McKenzie in charge. Id. at 219. Finally, Soliman cites as evidence of harassment the fact that Pletzinger gave Soliman gummy bears, a t-shirt, and a clock. Id. at 116-18.
Other. Soliman avers that Pletzinger told him that he was a "good looking guy" "too many times to count." Soliman Dep. at 119. Soliman claims that he saw Pletzinger looking through Soliman's backpack and desk drawers in his office, whereupon Pletzinger claimed to have been looking for a pen. Id. at 164, 668-69. Pletzinger purportedly made frequent inquiries into Soliman's personal life and told Soliman about his personal problems. Id. at 206. According to McKenzie, Pletzinger also told McKenzie personal information and that Pletzinger "by his very nature asked lots of people who they were dating and what they did over the weekend, etc." McKenzie Dep. at 77, 134. The annoying personal questions that Pletzinger asked were questions like "Did you just come back from lunch?" Id. at 83. Finally, Soliman claims that Pletzinger kept ski clothes that Soliman loaned him and stated that he wanted to keep something of Soliman's close to him. Soliman Dep. at 114. At the time of this exchange, however, Soliman admits that he did not construe it as a come-on, but just "sort of odd." Id. at 397.
Soliman and McKenzie worked in the Bank's offices located in midtown Manhattan while Pletzinger ordinarily worked in downtown Manhattan. When Pletzinger worked in midtown, he sometimes used Soliman's office.
2. Soliman's Rejection of Pletzinger's Alleged Advances
Soliman made it clear to Pletzinger that he did not want to go to gay bars. Id. at 56. Soliman pulled himself away if Pletzinger ever tried to touch him and "made it clear" that he did not want to have "any kind of relationship other than a professional relationship" with Pletzinger.Id. at 105-06, 108, 110, 119. He declined all of Pletzinger's specific social invitations, but never specifically told Pletzinger to stop inviting him out. Id. at 112. Soliman claims to have sent Pletzinger at least two e-mails telling Pletzinger to stay out of his personal life. Id. at 413. Although he downloaded and saved e-mails in a folder labeled "asshole" in his desk, the contents of which were dedicated to "building his case" against Pletzinger, Id. at 669, the only e-mail of this nature before the court is dated December 7, 2000. In this e-mail sent to Pletzinger, Soliman creates a list of grievances against Pletzinger, one of which is labeled "intrusion into personal matters." He writes:
"It is quite frankly non (sic) of your business what or with whom I have personal appointments with. When I informed you today that I could not meet with you at 5:00 PM because I had a personal appointment, you demanded to know what that personal appointment is. You would not drop the subject until I told you of the specifics of the appointments. Your assertion that you needed to know because lately I have been having a lot of "personal appointments" is factually incorrect and is an infringement of my personal life."
Def's Ex. B. Soliman avers that in another e-mail he can no longer locate, he was "more specific," and referred to "the touching, keeping a professional relationship, not wanting him to intrude on my personal life," in addition to using the word "harassment." Soliman Dep. at 413-14. But in this missing e-mail, he did not tell Pletzinger that he thought Pletzinger was sexually harassing him, hitting on him, or upset with him for rebuffing Pletzinger's sexual advances. Id. at 415.
3. The 2001 Evaluation Dispute and Pletzinger's Alleged Quid Pro Quo Request
In January of 2001, plaintiff and Pletzinger had a protracted dispute about Soliman's 2000 evaluation. Id. at 287. In short, Soliman wanted to add his own marks or rebuttal statements to the sections of his evaluation that were supposed to be exclusively completed by Pletzinger.Id. at 291, 294, 301; Def.'s Ex. B. Soliman eventually asked Irene Diamant, the Director of Human Resources and the Human Resources Advisor for IHC, if both he and Pletzinger could submit their own versions of his evaluation. Id. at 312; Def.'s Ex. B; Affidavit of Diamant, ¶ 1, 2. She replied in the negative, stating that the Bank could only have one version on file, and twice told him to attach a sheet to Pletzinger's appraisal. Id. at 313, 316-17; Def.'s Ex. B. Soliman thereupon sent Pletzinger an e-mail that stated: "Go ahead write whatever you like (false or accurate)." Id. at 317; Def.'s Ex. B. He asked Pletzinger to send him the final version of the evaluation before sending it on to Human Resources because "I did not want to give him carte blanche on a document for him to change whatever he liked." Id. at 328.
After this dispute, Soliman and Pletzinger met in February 2001 to discuss his 2000 evaluation and related bonus. Pletzinger gave him a $190,000 bonus but stated that he was not recommending Soliman for a promotion. Id. at 213-214. According to Soliman, Pletzinger told him that "if you and I become better friends, I would still promote you." Id. From the way Pletzinger said the word "friends," Soliman understood Pletzinger to be implying a sexual relationship. Id. at 217. When asked for clarification about Pletzinger's use of the word "friends," Soliman stated in his deposition:
"It was in a soft way. But the way he said it, it was that. He says well, you know, if we improve our working relationship. That's what he meant. To be related to the job. Could have been simply our relationship gets better in terms of working together. You know, I think with the promotion, that's not the way he said it."Id. at 217.
4. Defendant Bank's Knowledge of the Alleged Sexual Harassment
Soliman did not complain to anyone at the Bank about Pletzinger's alleged arm-touching, inviting Soliman to his home or himself to Soliman's home, request to keep the clothing he borrowed for a ski trip, or comments concerning Soliman's appearance. Id. at 107-08, 114-15, 126. He did not forward the e-mails in which he allegedly told Pletzinger to stay out of his private life to Diamant. Id. at 411.
Soliman points to the following as evidence that he alerted defendant to Pletzinger's unlawful sexual harassment: During Pletzinger and Soliman's disagreement over the completion of Soliman's 2000 evaluation, Soliman wanted to meet with Diamant. Id. at 331. In an e-mail to Diamant dated March 2, 2001, titled "request for a meeting on the year end evaluation," Soliman queries whether Diamant wants to be involved in resolving the problems relating to the evaluation and if not, if there is someone else in HR he can speak to. Def.'s Ex. B. In an e-mail dated March 5, 2001, Diamant replied, "I am happy to meet with you." Id. Their e-mail correspondence thereafter shows that because Pletzinger, Soliman, and Diamant were all scheduled to be on vacation for the remainder of March, Diamant offers to set up a meeting between them for the first possible date. Id. In addition to these e-mails, Soliman claims that he left voice mails with Diamant asking to speak with her, although he did not specify the nature of his personal problems with Pletzinger. Soliman Dep. at 322, 324, 339.
Soliman also alleges that he asked to speak to Hans Krauss, Director of Inhouse Consulting, who worked in Germany. He states that in a phone call with Krauss in late February, 2001, he told Krauss that Pletzinger was harassing him for personal reasons and that he was looking to get out of the group, but he did not explain what the "personal reasons" were. Soliman Dep. at 488-492. Further, Soliman claims he unsuccessfully tried to set up a meeting with Krauss when he was in New York, although he did not tell Krauss that Pletzinger's purposed sexual advances were the reason why he needed to talk to him. Id. at 493-495.
Finally, Soliman told Ken Kennedy that Pletzinger harassed Soliman because Soliman tried to keep Pletzinger out of his personal life. Soliman Dep. at 496.
B. Race Discrimination
Soliman claims that Pletzinger called Soliman a "natural salesman" "like all Arabs in a bazaar that sell," someone referred to him a "sand nigger" when he walked down the hall, and he heard Pletzinger make a statement that "all black people are good for is dancing." Id. at 541-543.
Soliman did not report these comments to Diamant, but he avers that in an off-site conference in Vermont, he and Diamant had a general discussion about having to have a "thick skin" in the banking environment. Id. at 545-46.
C. Plaintiff's Termination
In March of 2001, the Bank conducted an audit of cab charges and discovered that Soliman and Nina Ostrovsky, a junior consultant in IHC who worked with Soliman, were potentially using their corporate cab charges to travel back and forth between one another's homes. Affidavit of Diamant at ¶ 3. The Bank subsequently reviewed their e-mail correspondence for January and February 2001. The e-mails contain a number of references to an existing physical relationship, dinner plans, Ostrovsky's mother calling Soliman while he was at work and his efforts to conceal her voice message from his co-workers, Soliman identifying Ostrovsky as "Sandra" on his calendar to avoid detection, and a Valentine's Day gift of champagne and flowers. Affidavit of Diamant, Ex. C. Most importantly, in an e-mail written by Soliman to Ostrovsky dated January 22, 2001, entitled "your eval," Soliman included a completed copy of Ostrovsky's evaluation, and wrote: "do you like what I wrote, if not change as you see fit, and sign and interrofice (sic) to me." Soliman Ex. 25.
The Bank has a policy prohibiting family members and significant others from working in a "direct reporting or supervisory/management relationship." Affidavit of Diamant, Ex. C. From Diamant's perspective, Soliman and Otrovsky's relationship violated that policy. Affidavit of Diamant at ¶ 6.
On April 27, 2001, Diamant and John Chocko, a Vice President in the Bank's Audit Department, met with Ostrovsky. They showed her the cab charges in question and e-mails between she and Soliman and queried whether she and Soliman were in a relationship. Whether or not Ostrovsky admitted to the relationship is unclear. Diamant stated in her deposition that although Ostrovsky was hesitant and began crying at one point, she ultimately admitted to having a voluntary relationship with Soliman. Diamant Dep. at 162-63 (July 11, 2003). Ostrovsky, however, stated that she described the nature of her relationship with Soliman as one of mentorship or friendship, but she admitted that the cab rides were of a personal nature. Ostrovsky Dep. at 112.
Immediately after their meeting with Ostrovsky, Diamant and Chacko met with Soliman. Diamant showed him the cab charges and stated that they appeared to be of a personal nature. Soliman Dep. at 234. Soliman denied using his cab charge for personal reasons, suggested that he had lent his cab charge to someone else who must be the responsible party, and offered to reimburse the Bank for the rides. Id. at 234-35. Diamant then showed him the e-mails between himself and Ostrovsky, including the e-mail Soliman sent to Ostrovsky about her evaluation. In response, Soliman told Diamant that he "would not confirm or deny" a relationship with Ostrovsky and that regardless, she was not his direct report. Id. at 250-53. Thereafter, Diamant gave Soliman a resignation letter which Soliman refused to sign, and told him that she would report back to a committee so that the committee could review the findings. Id. at 270. He was then placed on administrative leave pending the review.
Soliman claims that in this final meeting, he did not have the opportunity to explain to Diamant that Pletzinger had been making sexual advances towards him. Id. at 259. He told Diamant generally that he wanted to make a complaint against Pletzinger, but she told him to put it in writing so she could show it to the committee reviewing Soliman's possible termination. Id. at 259-60. Soliman did not subsequently write such a letter; instead he contacted Don Jones and asked for a personal meeting with him. Id. at 260. He also contacted Ken Kennedy that same day. Id. at 270.
On May 1, 2001, Soliman received a termination letter. Pl.'s Ex. F. Pletzinger was ultimately responsible for the decision to terminate Soliman, although the decision was also informed by Diamant, the Audit Department, and the Legal Department. Diamant Dep. at 150 (July 11, 2003). According to Diamant, the Bank did not terminate Ostrovsky because Ostrovsky had not altered her performance evaluation even though Soliman invited her to do so. Diamant Affidavit, at ¶ 8.
1. Soliman's Objections to His Termination
a. Race discrimination
Soliman believes that his termination was racially discriminatory because he was fired whereas Ostrovsky is white and she was not fired for having violated the same policy. Soliman Dep. at 538-39. Further, he claims that other Bank employees who were white have been in relationships with one another and they were not terminated. He claims that Dr. Herwig Leins, the Chief Operating Officer of Global Technology and Services, dated Dr. Iris Baeurle, who reported directly to Soliman.Id. at 454, 552. He also claims that Karen and Ken Newman dated and worked in the same department, as did Cathy and Jon Franco. Id. at 554.
b. Pletzinger set Soliman up
First, Soliman claims that after he spoke to Hans Krauss in Germany about his desire to transfer to a different department, Pletzinger told Soliman that he knew Soliman had been talking to people in Germany. Id. at 424. During an IHC meeting on March 9, 2001, Pletzinger was allegedly very hosfile towards Soliman by giving him dirty looks. Id. at 425. After the meeting, Soliman approached Pletzinger to ask why he was being so hosfile, and Pletzinger told him, "If you don't leave, I am going to get you fired." Id. at 427. Soliman believes that Pletzinger must have spoken with Krauss about the discussion Soliman had with Krauss. Id. at 427-28. He claims that he called Krauss after Pletzinger's threat and left Diamant a voice mail telling her that he needed to speak with her. Id. at 428-29.
Second, Soliman claims that Pletzinger learned that he and Ostrovsky were dating in 2000. Id. at 254. Nevertheless, Pletzinger asked Soliman to complete an evaluation for Ostrovsky that McKenzie had already started. Id. at 34. They had a "heated argument" over who would complete her evaluation, but Soliman eventually agreed to do it. Id. at 34.
c. He did not violate Bank policy
In his deposition, Soliman admitted that he and Ostrovsky began an intimate relationship sometime in 2000. Id. at 455. He also conceded that he was aware that he should avoid actual or perceived conflicts of interest in the workplace. Id. at 454. He avers, however, that he did not violate Bank policy by completing Ostrovsky's evaluation because she was not his direct report. Id. at 250. He points to an organizational chart for 2000 showing McKenzie as Ostrovsky's administrative report. Id. at 252-53. When confronted with at least three project report charts identifying Soliman as the project manager of projects to which Ostrovsky was assigned in 2000, Soliman stated that the project manager is not responsible for a project's day-to-day implementation or that he was not genuinely responsible for the project in question. Id. at 43-48.
In his deposition, McKenzie confirmed that Ostrovsky was his administrative report in 2000. He generally completed the evaluations of his administrative reports unless the employee worked more than half of the time for another project manager, who would then complete the evaluation. McKenzie Dep. 25-26. He does not recall working on any projects with Ostrovsky. Id. at 18. Similarly, Ostrovsky testified in her deposition that while she was working at IHC, she dealt with Soliman more than anyone else. Ostrovsky Dep. at 18. Although McKenzie was her direct manager, if she had a question about a project she was working on, she would go to Soliman. Id. at 29. She worked on one project with McKenzie during 2000, but it was a very short one. Id. at 30.
STANDARD ON SUMMARY JUDGMENT
Under Fed.R.Civ.P. 56(c), summary judgment "shall be rendered forthwith" if it is shown that "there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4, 106 S.Ct. 2548, 2552 n. 4 (1986). "[G]enuineness runs to whether disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the applicable substantive law." Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir. 1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material fact exists, a plaintiff "may not rest upon the mere allegations or denials of the pleading[s]," but must by affidavit or otherwise "set forth specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). "Conclusory statements, conjecture or speculation by the party resisting the motion will not defeat summary judgment." Kulak v. City of New York, 88 F.3d 63, 71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997). If the initial burden is met, the non-moving party "must produce specific facts indicating that a genuine issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is not significantly probative, summary judgment may be granted." Scotto Almenas, 143 F.3d 105, 114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).
Trial courts must be particularly cautious in awarding summary judgment in employment discrimination actions where intent is at issue. Chertkova v. Connecticut Gen. Life Ins., 92 F.3d 81, 87 (2d Cir. 1996). From this cautionary warning, however, it does not follow that a plaintiff is absolved from the responsibility of producing sufficient evidence from which a reasonable jury could return a verdict in plaintiff's favor.Welland v. Citigroup, Inc., 2003 WL 22973574, at 5 (S.D.N.Y. Dec. 17, 2003), citing Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456. 461 (2d Cir. 2001), cert. denied, 534 U.S. 993, 122 S.Ct. 460 (2001). "The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion. Indeed, the salutary purposes of summary judgment — avoiding protracted, expensive and harassing trials — apply no less to discrimination cases than to commercial or other areas of litigation." Finney v. Planned Parenthood of New York City, Inc., 2003 WL 22928730, at 3 (S.D.N.Y. Dec. 10, 2003) citing Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.), cert. denied, 474 U.S. 829, 106 S.Ct. 91 (1985).
DISCUSSION
A. Race Discrimination Under Title VII and New York City and State Human Rights Laws
Title VII prohibits employers from discharging or otherwise discriminating against employees in the terms, conditions, or privileges of employment on the bases of race. 42 U.S.C. § 2000e-2(a)(1). In the absence of direct evidence of discrimination, a plaintiff relies on the familiar burden-shifting test set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 803 familiar burden-shifting test set forth in McDonnell-Douglas Corp. v. Green, 411 U.S. 792, 803-04 (1973). First, the plaintiff has the burden of proving a prima facie case of discrimination by a preponderance of the evidence. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Third, if the defendant carries its burden, the plaintiff must prove by a preponderance of the evidence that the defendant's legitimate rationale is a pretext for discrimination. While the burden shifts, the burden to persuade the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff. Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
Plaintiff's claims under New York state and city human rights laws are subject to the same standard of proof as plaintiff's Title VII claims, negating the necessity of a separate analysis. Cruz v. Coach Stores, Inc., 202 F.3d 560, 565, n. 1 (2d Cir. 2000); Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1177 (2d Cir. 1996); Espaillat v. Breli Orginals, Inc., 227 A.D.2d 266, 268, 642 N.Y.S.2d 875, 877 (1st Dept. 1996).
In order to make out a prima facie case of race discrimination, Soliman must show: 1) he is a member of a protected class; 2) he performed his job satisfactorily; 3) the Bank took an adverse employment action against him, and 4) the circumstances of the adverse employment action give rise to an inference of discrimination based on Soliman's membership in the protected class. Farias v. Instructional Systems, Inc., 259 F.3d 91, 98 (2d Cir. 2001). Plaintiff's burden at this stage is de minimis. Chambers v. TRM Copy Centers Corp., 43 F.3d 29, 37 (2d Cir. 1994).
The central dispute between the parties is whether plaintiff can offer legally sufficient evidence to raise an inference of discrimination. Soliman avers that he overheard someone call him a "sand nigger" in passing, Pletzinger told him he was like an Arab selling in a bazaar, and Pletzinger made a statement to the effect that "all blacks are good for is dancing." While understandably offensive, even if the court accepts plaintiff's allegations as true, these stray remarks are insufficient to raise an inference of discrimination. Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir. 1997) (there must be more than a few isolated instances of racial enmity); Hawana v. City of New York, 230 F. Supp.2d 518, 527 (S.D.N.Y. 2002) (two stray remarks do not satisfy the fourth prong of a prima facie case).
Plaintiff also charges the Bank with race discrimination because he was fired for violating the policy prohibiting employees in a relationship from working in a direct reporting or supervisory relationship, whereas Ostrovsky, who was white, and other white employees were not. A plaintiff can raise an inference of discrimination by showing that the employer treated him less favorably than a similarly situated employee outside his protected group. See Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). The employees to be compared must be similar in all material respects, which means that "a plaintiff must show that [his] co-employees were subject to the same performance evaluation and discipline standards . . . [and] that similarly situated employees who went undisciplined engaged in comparable conduct." Id. (internal citations omitted). "Comparable" does not mean identical, but it does require the conduct to be of comparable seriousness. Id. at 40. There must be a "reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical."Id. at 39. Whether employees are similarly situated is ordinarily a question for the jury. Id. at 38.
Here, taking Soliman's claim that Dr. Leins dated Dr. Baeurle as true, Dr. Leins was not subject to the same Bank policy as plaintiff because the policy does not apply to employees outside of the United States. Diamant Affidavit at ¶ 5, 10 and Exs. B and E, attached thereto. Even if it did, there is no evidence that like Nina Ostrovsky, Baeurle worked directly beneath Dr. Leins or that Leins completed Baeurle's evaluations. To the contrary, Soliman stated that Baeurle worked with him. Soliman Dep. at 454. Although Karen and Ken Newman and Cathy and Jon Franco. may have worked in the same department, there is no further showing that they were in a direct reporting or supervisory relationship like plaintiff and Ostrovsky. Equally as significant, plaintiff does not aver that any of these employees engaged in the similarly serious and culpable conduct of allowing the person with whom they were in a relationship to change their performance evaluation as they saw fit. See Soliman Ex. 25. Because no reasonable jury could find that plaintiff and the co-workers he seeks to compare himself with are similarly situated, as a matter of law, Soliman cannot raise an inference of discrimination based on allegedly dissimilar treatment. See Harlen Associated v. Incorporated Village of Mineola, 273 F.3d 494, 499-500 n. 2. (2d Cir. 2001)
Because plaintiff can not make out a prima facie case of race discrimination, defendant's motion for summary judgment on plaintiff's Title VII and New York state and city race discrimination claims is hereby GRANTED.
B. Same Sex Harassment
Plaintiff claims that Pletzinger sexually harassed him in violation of Title VII and New York state and city human rights laws. See 42 U.S.C. § 2000e et seq.; N.Y. Exec. Law § 290 et seq.; N.Y.C. Admin. Code § 8-107. Title VII makes it unlawful for an employer to discriminate against any individual with respect to the terms and conditions of employment on account of the employee's sex. Id. It is well settled that Title VII's prohibition on sex discrimination encompasses same sex harassment where "members of one sex are exposed to disadvantageous terms or conditions of employment to which members of the other sex are not exposed." Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 79-80, 118 S.Ct. 998 (1998) quoting Hams v. Forklift Systems, Inc., 510 U.S. 17, 25, 114 S.Ct. 367 (1993) (Ginsberg, J., concurring). In order to withstand defendant's motion for summary judgment, plaintiff must point to evidence creating a genuine issue of fact regarding whether Pletzinger's workplace conduct vis-a-vis plaintiff was "because of [plaintiff's] sex. Id. at 79.
Plaintiff's state and city human rights claims of sexual harassment are subject to the same analysis as plaintiff's Title VII claims of sexual harassment. See Tomka v. Seler Corp., 66 F.3d 1295, 1304 n. 4 (2d Cir. 1995).
Here, Plaintiff points to Pletzinger's conduct and purported offer for sexual relations in exchange for a promotion to substantiate his sexual harassment claim. There is no need to distinguish between "hosfile work environment" sexual harassment and "quid pro quo" harassment. See Gregory v. Daly, 243 F.3d 687, 698 (2d Cir. 2001) (interpreting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 118 S.Ct. 2257 (1998), and Oncale, 523 U.S. 75, 118 S.Ct. 998). "[T]hese labels, to the extent that they are useful at all, are so merely as descriptions of varying workplace conditions that violate Title VII's basic prohibition on sex discrimination in terms or conditions of employment." Id. citing Ellerth, 524 U.S. at 751-52, 118 S.Ct. 2257; Oncale, 523 U.S. at 78-81, 118 S.Ct. 998. Because allegations of "quid pro quo" sexual harassment are merely one type of factual allegation to support a cause of action under Title VII, the court will consider Soliman's claims of quid pro quo harassment as part of his claims that he was subject to a hosfile work environment by virtue of Pletzinger's conduct. See also Yerry v. Pizza Hut of Southeast Kansas, 186 F. Supp.2d 178, 183 (N.D.N.Y. 2002) (same).
To state a hosfile environment claim, a plaintiff must establish that the harassment was "sufficiently severe or pervasive to alter the conditions of employment and create an abusive working environment."Harris, 510 U.S. at 21, 114 S.Ct. 367. The conduct must have been both objectively and subjectively offensive, meaning that a reasonable person would find the conduct hosfile or abusive and that the plaintiff in fact perceived the conduct as such. Id. The court must examine "all the circumstances," including the frequency, its severity, whether it was physically threatening or humiliating, or merely an offensive utterance.Id. at 23, 114 S.Ct. 367. "When the workplace is permeated with discriminatory intimidation, ridicule, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment, Title VII is violated."Oncale, 523 U.S. at 78, 118 S.Ct. 998 citing Harris, 510 U.S. at 21, 114 S.Ct. 367. See also Terry v. Ashcroft, 336 F.3d 128, 148 (2d Cir. 2003) ("[T]he test is whether the harassment is of such a quality or quantity that a reasonable employee would find the conditions of her employment altered for the worse.") Although the "harassing conduct need not be motivated by sexual desire to support an inference of discrimination because of sex," again, it is crucial that the conduct actually constituted discrimination on account of sex. Oncale, 523 U.S. at 81. See also Galdien-Ambrosini v. National Realty Dev. Corp., 136 F.3d 276, 289 (2d Cir. 1998) (same).
Soliman avers that Pletzinger treated him favorably, touched his arm, touched his shoulders in meetings when describing their relationship as "close" and encouraging other IHC employees to develop similar relationships, sat close to him, commented that he was a "good looking guy," told Soliman he was gay, invited him to social events and an allegedly "gay" bar on two occasions, asked him about his personal life, and so forth. None of these acts are marked by any hint of sexual innuendo, nor do they suggest that Pletzinger's conduct was motivated by animus against males in the workplace. A reasonable jury could not conclude that Pletzinger's neutral acts were motivated by Soliman's sex.See West v. Mt. Sinai Medical Center, 2002 WL 530984, 1-2 (S.D.N.Y. Apr. 9, 2002) (Motley, J.) (granting summary judgment to defendant where the only reasonable conclusion a jury could draw was that plaintiff's supervisor's favorable treatment towards her and offers to take her to social gatherings were nothing more than simple friendly gestures, not veiled sexual advances); Moran v. Fashion Institute of Technology, 2002 WL 31288272, 6 (S.D.N.Y. Oct. 7, 2002) (plaintiff could not sustain his claim of sexual harassment based on allegations of leering, physical closeness, and brief touching because excessive attention, physical proximity, or casual touching in the context of conversation is sex-neutral conduct). With respect to Pletzinger's purported statement that he would consider nominating Soliman for a promotion if the two men became "better friends," Soliman construed it as a sexual advance because Pletzinger said it "in a soft way." Judged against the background of Soliman and Pletzinger's recent disputes concerning Soliman's 2000 employee evaluation at the time the statement was made, Soliman's conclusory allegation that Pletzinger must have meant something "sexual" as opposed to something professional in referencing the need for them to improve upon their relationship is insufficient to defeat summary judgment. See Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir. 1985) ("The summary judgment rule would be rendered sterile . . . if the mere incantation of intent or state of mind would operate as a talisman to defeat an otherwise valid motion."). A single ambiguous statement that may or may not have been motivated by plaintiff's sex, about which even Soliman concedes could have been sex-neutral, is simply too thin a reed upon which to establish a genuine issue of material fact for a jury.
Further, the conduct Soliman points to falls short of violating Title VII as a matter of law. The court is mindful of not setting the standard for sexual harassment too high, but even construing Soliman's allegations in his favor, a reasonable jury could not conclude that Pletzinger's purported favoritism of Soliman, personal questions, invitations, or casual touching altered Soliman's employment for the worse or created an abusive, intimidating, or hosfile working environment. See e.g., O'Dell v. Trans World Entm't Corp., 153 F. Supp.2d 378, 386 (S.D.N.Y. 2001) (granting summary judgment to defendant where plaintiff's evidence consisted of invitations out on dates, gifts, compliments about plaintiff's appearance, and written declarations of love); Feliciano v. Alpha Sector, 2002 WL 1492139, at 8 (S.D.N.Y. July 12, 2002) (same, but plaintiff's evidence included compliments, invitations to date, attempted hug, a kiss, phone calls, and stated desire to "lay" with plaintiff);Moran v. Fashion Institute of Technology, 2002 WL 31288272 (S.D.N.Y. Oct. 7, 2002), (same, where plaintiff presented evidence of casual touching, leering, physical proximity, and talking about plaintiff to co-workers).
Because Soliman has not established a genuine issue of material fact that Pletzinger's conduct towards him was because of his sex or objectively offensive, the Bank's motion for summary judgment on plaintiff's sexual harassment claim is hereby GRANTED.
C. Retaliation
Title VII and New York human rights laws prohibit employers from retaliating against employees for complaining about employment discrimination. See 42 U.S.C. § 2000e(3)(a); N.Y. Exec. Law § 296(1)(e). The court analyzes his retaliation claim according to the sameMcDonnell-Douglas burden-shifting analysis. Reed v. A.W. Lawrence Co., 95 F.3d 1170, 1178 (2d Cir. 1996). Thus, Soliman must show a prima facie case of retaliation. If he makes such a showing, the Bank must offer a non-discriminatory reason for the adverse employment action. Assuming the Bank does so, Soliman must then establish that the Bank's rationale is simply a pretext for retaliation.
To establish a prima facie case of retaliation, Soliman must demonstrate that 1) he engaged in a protected activity that the Bank was aware of; 2) the Bank took an adverse employment action against him; and 3) there was a causal connection between Soliman's protected activity and the adverse employment action taken. See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 116 (2d Cir. 2000). The Bank argues that Soliman cannot make out the first prong of the prima facie case of retaliation because he never alerted the Bank to Pletzinger's alleged sexual harassment.
"The term `protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination." Cruz v. Coach Stores, Inc., 202 F.3d 560, 566 (2d Cir. 2000). See also Brands-Kousaros v. Banco. Di Napoli S.P.A., 1997 WL 790748, at 5 (S.D.N.Y. Dec. 23, 1997) ("the protected activity alleged must involve some sort of complaint about a type of discrimination that Title VII forbids."). Protected complaints generally include "making complaints to management, writing critical letters to customers, protesting against discrimination by industry or by society in general, and expressing support of co-workers who have filed formal charges." Id. at 566. Although a plaintiff does not have to lodge a formal complaint to an administrative body in order to have engaged in a protected activity, Cifra v. General Electric Company, 252 F.3d 205, 208 (2d Cir. 2001), doing so is the most obvious example of a protected complaint. See Love-joy-Wilson v. NOCO Motor Fuel. Inc., 263 F.3d 208, 223 (2d Cir. 2001). The form of a plaintiff's objection may be nothing more than a simple "objection voiced to the employer," Barcher v. New York Univ. Sch. of Law, 993 F. Supp. 177, 184 (S.D.N.Y. 1998), but at the very least, "there must be some form of professional indicia of a complaint made against an unlawful activity. Moran v. Fashion Institute of Technology, 2002 WL 31288272, at 8 (telling one's supervisor to "stay away" and "leave him alone" did not constitute a protected activity),citing Cruz, 202 F.3d at 566 (slapping one's harasser, even assuming that it was done in response to unlawful harassment, was not a protected activity).
"Implicit in the requirement that the employer have been aware of the protected activity is the requirement that it understood, or could reasonably have understood, that the plaintiff's opposition was directed at conduct prohibited by Title VII." Galdieri-Ambrosini, 136 F.3d at 292. Accordingly, where a plaintiff's complaint is vague or ambiguous and does not sufficiently articulate the nature of harassment, courts hold that a plaintiff has not engaged in a protected activity. See Sales v. YM YMHA of Washington Heights and Inglewood, 2003 WL 1642768 (S.D.N.Y. Jan. 22, 2003) (because plaintiff failed to explain to the defendant employer the racially derogatory meaning behind the ambiguous term used by his supervisor, the defendant employer cannot be found to have been aware of plaintiff's protected activity); West v. Mt. Sinai Medical Center, 2002 WL 530984, 3-4 (because plaintiff did not specify that there was anything sexual about her alleged harasser's conduct, no reasonable factfinder could conclude that the defendant employer understood that her complaint implicated Title VII); Moran v. Fashion Institute of Technology, 2002 WL 31288272 (plaintiff never stated he objected to his supervisor's conduct on the grounds of sexual harassment); Lapsley v. Columbia University — College of Physicians, 999 F. Supp. 506, 525 (S.D.N.Y. 1998) (plaintiff complained about the employer's discriminatory promotion practices but did not articulate the basis for her belief of discrimination).
Viewing the evidence in the light most favorable to Soliman, a reasonable factfinder could not conclude that plaintiff Soliman engaged in a protected activity. Telling Pletzinger to stay out of his personal life and pulling his arm away whenever Pletzinger touched him are not protected activities under Title VII. In none of his purported attempts to tell Diamant, Krauss, or Kennedy about Pletzinger's objectionable acts did he state that Pletzinger was sexually harassing him or make any statement that could reasonably be construed accordingly. Because the Bank would not have understood that Soliman's problems with Pletzinger had anything to do with sexual harassment, Soliman's subsequent retaliation cannot, as a matter of law, amount to an unlawful retaliation under Title VII. See West v. Ml Sinai, 2002 WL 530984, supra.
Defendant's motion for summary judgment on plaintiff's retaliation claim is hereby GRANTED.
CONCLUSION
Having resolved all ambiguities and drawn all reasonable inferences in favor of plaintiff Soliman, the court concludes that no reasonable factfinder could find that defendant Deutsche Bank subjected Soliman to sexual harassment, discriminated against him on account of race, or retaliated against him in violation of Title VII or New York state and city human rights laws. For the reasons cited above, defendant's motion for summary judgment is GRANTED and plaintiff's claims are dismissed in their entirety.