02 Civ. 5191 (VM)
September 30, 2003
DECISION AND ORDER
Plaintiff Maia Ferrand ("Ferrand") brings this action alleging gender discrimination in violation of federal, state and city anti-discrimination laws, breach of implied contract, quantum meruit, and violations of the New York Labor Law and the Employee Retirement Income Security Act ("ERISA"). Defendant Credit Lyonnais ("Credit Lyonnais" or the "Bank") moves for summary judgment, pursuant to Fed.R.Civ.P. 56, dismissing all the claims alleged in Ferrand's First Amended Complaint ("Complaint" or "Compl."), dated July 16, 2002. For the reasons set forth below, Credit Lyonnais's motion is GRANTED in its entirety.
The factual summary that follows derives primarily from Credit Lyonnais's Statement Pursuant to Local Civil Rule 56.1, dated April 7, 2003; Credit Lyonnais's Memorandum of Law in Support of its Motion for Summary Judgment, dated April 7, 2003. Ferrand's Statement Pursuant to Local Civil Rule 56.1, dated May 23, 2001 and Ferrand's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated May 23, 2003. Except where specifically referenced, no further citation to, these sources will be made.
Ferrand's offer letter, dated April 9, 1997, confirmed an annual salary of $150,000 and a minimum guaranteed bonus of $250,000 for her first year of employment. In accordance with the Employee Handbook, which was given to Ferrand when she commenced her employment at Credit Lyonnais, the Bank has a discretionary bonus policy: "Management . . . may, in its discretion, grant a bonus to any or all of its employees" . . . Payment of a bonus is not guaranteed; management may choose to grant or not grant a bonus at year-end to any or all of its employees." Besides the original bonus guarantee fulfilled during her first year at the Bank, Ferrand had no other guaranteed bonuses.
Ferrand received bonus compensation, on top of her base salary, totaling $875,000 for 1998 and $750,000 for 1999. In those years, the FX Options division she managed generated $14.8 million and $14.5 million in revenue, respectively. In 1998 and 1999 her performance, as judged by the profitability of her department and her performance reviews, exceeded expectations.
In September 2000, Graham Whitehair ("Whitehair"), whose job title was Global Head of Foreign Exchange, became head of Ferrand's FX Option's division as well, thereby becoming Ferrand's immediate superior. Ferrand alleges that prior to this time Whitehair had expressed animus towards her and was resolute on making sure that she be required to report to him. This animus was allegedly expressed to Ferrand directly and to Alex Ladouceur ("Ladouceur"), the Head of New York Foreign Exchange. Ladouceur asserts that in conversation, Whitehair would frequently refer to Ferrand as a "bitch," "whore," or "slut." (Affidavit of Ladouceur ("Ladouceur Aff."), dated May 28, 2003 ¶ 5.) Although the parties disagree as to what caused the problems between Whitehair and Ferrand, both parties acknowledge that the business relationship between the two was turbulent. The Bank alleges that Ferrand constantly tried to bypass Whitehair's authority and Ferrand alleges that Whitehair excluded her from important decisions and was generally "incapable of working" with her.
In January 2001, Joel Jeuvell ("Jeuvell") became the Global Head of Capital Markets and Whitehair's direct superior. Whitehair and Jeuvell met in London in January 2001 and discussed two important matters at issue were: (1) the allocation of the 2000 bonus pool to members of Ferrand's department, and (2) Jeuvell's plan to centralize all foreign exchange activities in London, where Whitehair and Jeuvell were situated, and Ferrand's resulting need to relocate. Ferrand alleges that both of these decisions were made with the input of Whitehair who harbored sexually drivin animus against her.
For the year 2000, Ferrand received a bonus of $50,000. The Bank alleges that this reduced amount of discretionary bonus was based on the poor performance of Ferrand's desk that year; and therefore, the decreased funds allocated to bonus compensation for the members of her desk. The highest bonuses in the FX Options group went to two male salespersons($150,000 and $200,000, respectively). Ferrand alleges that their higher bonuses raise an infererence of discrimination, while the Bank explains that the individual salespersons received bonuses based on their own substantial contributions to the FX Options desk, while Ferrand's bonus reflected the overall underperformance of her group in 2000. The Bank also points to two other male desk heads who, based on the low profitability of their departments, received no bonuses in 2000. Ferrand argues that the comparison is invalid because one of the departments pointed to had a negative performance as opposed to lower than expected profitability, which was the case in FX Options, and because the other male desk head received additional compensation through an arbitration proceeding.
Ferrand also alleges that the Bank's decision to relocate her to London was intended to lead to her termination and was discriminatory. Ferrand argues that the terms of the relocation package, which Whitehair allegedly influenced, were inferior to Ferrand's terms of employment in New York and were below her expectations. On the other hand, Credit Lyonnais argues that each part of the relocation package offered was at least equal if not better than the terms of her employment in New York.
Ultimately, Ferrand refused the Bank's offer to relocate her to London. John Quinn ("Quinn"), the Head of Human Resources at the Bank, then sent Ferrand a letter explaining that her job in New York no longer existed, and that if she refused to go to London she would be terminated. She was offered $50,000 severance in exchange for signing a release, but Ferrand did not sign the release or access the severance payment.
After Ferrand left the Bank, her duties were handled in part by Whitehair and in part by a new male hire retained months later, Xin He, who was hired in Parts but with the intent to move to China to open a Shanhai desk. All managerial, reporting and budget aspects of Ferrand's position were assumed by Whitehair.
A. STANDARD OF REVIEW
To grant summary judgment, the Court must determine that no genuine issue of material fact exits and that the moving party is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c). The court is not "to weigh and determine the truth of the matter but to determine whether there is a genuine issue for trial."Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) . Summary judgment is inappropriate if, the Court, inappropriate if, the Court, resolving all ambiguities and drawing all reasonable inferences against the moving party, finds that the dispute about a material fact is "such that a reasonable jury could return a verdict for the nonmoving party."Id. at 248-49 (citing Adickes v. SJ. Kress Co., 398 U.S. 144, 159, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970)).
The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matters that "it believes demonstrate the absence of a genuine issue of material fact."Celotex, 477 U.S. at 323. The nonmoving party "must support with specific evidence his assertion that a genuine dispute as to material fact does exist," id., 477 U.S. at 324, and "may not rely on conclusory allegations or unsubstantiated speculation," Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998). The opposing party's showing of a genuine dispute must be grounded in concrete evidence sufficient to support a reasonable jury's rendering a verdict in his favor. See Anderson v. Liberty Lobby, 477 U.S. 242, 248, 256 (1986) ("The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient."); Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). All ambiguities and reasonable inferences drawn from the underlying facts must be resolved in the light most favorable to the party opposing the motion. See United States v. One Tintoretto Painting Entitled "The Holy Family With Saint Catherine and Honored Donor", 691 F.2d 603, 606 (2d Cir. 1982) citing United States v. Diebold, Inc., 369 U.S. 654, 655 1962).
B. GENDER DISCRIMINATION
Ferrand alleges that Credit Lyonnais discriminated against her on the basis of her sex by paying her less than her male subordinates, drastically reducing her bonus compensation, removing her job responsibilities requiring her to transfer to London with inferior terms of employment, and ultimately terminating her employment in of Title VII, 42 U.S.C. § 2000e ("Title VII"), § 2000e ("Title VII") of the New York State Human Rights Law, and § 8-107 of the New York City Human Rights Law.
The focus of a Title VII sex discrimination case is whether the employer is treating "some people less favorably than others because of their . . . sex." International Brotherhood of Teamsters v. United States, 324, 335 n. 15 (1977) . To survive summary judgement on her gender discrimination claims, Ferrand must either produce "direct evidence" of discrimination, or establish discrimination by inference through the burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green 411 U.S. 792, 801-802, 93 S.Ct. 1817, 36 L.Ed.2d 668 1973). Since Ferrand has not provided direct evidence of discrimination, her claims must be established by inference. These standards apply equally to gender discrimination claims under Title VII and claims brought under New York State and New York City Human Rights Laws. See Weinstock v. Columbia Univ., 224 F.3d 33, 42 n. 1 (2d Cir. 2000); Douglas v. Dist. Council 37 Mun. Employees' Edu. Fund Trust, 207 F. Supp.2d 282, 288 (S.D.N.Y. 2002).
Under the McDonnell Douglas burden-shifting test, Ferrand must first establish a prima facie case of discrimination by showing: (1) she is a member of a protected class; (2) she was qualified for her position; (3) she suffered an adverse employment action and (4) the circumstances surrounding that action give rise to an inference of gender discrimination. See 411 U.S. at 802; Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d Cir. 2000). If Ferrand sufficiently states a prima facie case, Credit Lyonnais is required to present a legitimate, nondiscriminatory business reason for its actions. McDonnell Douglas, 411 U.S. at 802. Finally, Ferrand must then rebut the legitimate reasons proffered by the Bank by demonstrating that its reasons are pretextual and that gender discrimination was the true reason for the adverse employment action at issue. Id.; Austin v. Ford Models, Inc., 149 F.3d 148, 153 (2d Cir. 1998). Moreover, "[w]ithin this procedural framework, plaintiff bears, at all times, the ultimate burden of proving that he was the victim of discrimination." De La Cruz v. New York City Human Res. Admin. Dep't of Soc. Serv., 884 F. Supp. 112, 115 (S.D.N.Y. 1995) (citingSt. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993)).
The first two elements of Ferrand's prima facie case are sufficiently stated and are not contested by the Bank. However, Credit Lyonnais argues that since Ferrand was not terminated, but rather offered continuing employment at equal or better terms in a different locale, which she refused, an adverse employment action did not occur. The Court accepts Ferrand's assertion that her much decreased bonus compensation in 2000 and a mandatory transfer to a foreign country, on terms she was disappointed with and concerning which she generally expressed strong antipathy, constitute adverse employment actions. See Richardson v. New York Dep't of Corr. Serv., 180 F.3d 426, 446 (2d Cir. 1999) (an employment action is adverse when it constitutes a materially adverse change in the plaintiff's terms and conditions of employment). The relocation to London, although not necessarily a termination, may reasonably be considered adverse in light of Ferrand's testimony concerning her young child and the need for finding school and child-care in a foriegn country. Accordingly, this case is easily distinguished from Ofori-Awuku v. EPIC Security and Rosy Blue Jewelry Store, No. 00 Civ. 1548, 2001 WL 180054, at *4 (S.D.N.Y. Feb. 23, 2001), cited by Defendants for the proposition that a transfer is not an adverse employment action, because in that case the plaintiff was removed from a security posting at a particular locale, but was not asked to move to another country; rather, had he not left his employment, he presumably would have been placed at a different security position in a similar geographic area. Therefore, Ferrand has satisfied the first three elements of a prima facie case for sexual discrimination under Title VII.
In any event, the Bank's challenge relates primarily to the fourth prong of the prima facie test outlined above. It is common for the fourth element to be disputed: the "heart of a prima facie case lies in the determination of whether the complained of personnel action occurred under circumstances giving rise to an inference of discrimination."O'Connor v. Viacom Inc./Viacom Int'l Inc., No. 93 Civ. 2399, 1996 WL 194299, at *3 (S.D.N.Y. April 23, 1996) (citing Spence v. Maryland Casualty Co., 995 F.2d 1147, 1155 (2d Cir. 1993)). A plaintiff can establish an inference of discrimination by demonstrating disparate treatment based on sex or by proffering evidence of "the employer's criticism of the plaintiff's performance in ethnically degrading terms; or its invidious comments about others in the employee's protected group." Tramble v. Columbia Univ., No. 97 Civ. 1271, 1999 WL 61826, at *5 (S.D.N.Y. Feb. 10, 1999) (citing Taylor v. Runvon. No. 97 Civ. 2425, 1997 WL 727488, at *5 (S.D.N.Y. Nov. 20, 1997) and Chambers v. Levitt, 773 F. Supp. 645, 563 (S.D.N.Y. 1991)).
The Second Circuit has repeatedly held that the burden of proving aprima facie case is de minimus. See Galle v. Prudential Residential Services, Ltd. Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994) ("Because plaintiff's burden of proof . . . under the McDonnell Douglas/Burdine analysis is de minimis at this stage, . . . we conclude centrary to the district court, that plaintiff met her burden of establishing a prima facie showing of age discrimination Dister v. Continental Group, Inc., 859 F.2d 1108, 1114 (2d Cir. 1988) "(Plaintiff's first burden under McDonnell Douglas is to establish a prima facie case of unlawful termination under Title VII. The nature of the plaintiff's burden of proof at the prima facie stage is de minimus)." In Sweeney v. Research Foundation of State Univ. of New York, the Second Circuit further elaborated on the negligible nature of this burden: "[w]here the defendant has done everything that would be required of him if the plaintiff had properly made out a prima facie case, whether the plaintiff really did so is no longer relevant. The district court has before it all the evidence it needs to decide whether `the defendant intentionally discriminated against the plaintiff.'" 711 F.2d 1179, 1184 2d Cir. 1983) quotingUnited States Postal Service Board of Governors v. Aikens, 460 U.S. 711 (1983)). In Aikens, the Supreme Court reiterated that the complainant's initial burden of establishing a prima facie case is not onerous and indicated that reviewing courts should not be preoccupied with whether a prima facie case has been established.
In this case, Ferrand alleges both disparate treatment as compared to other employees of the Bank and invidious comments by Whitehair in conversations with Ladouceur. Ferrand argues that because her bonus was less than her male subordinates in 2000, and because she was coercively asked to relocate to London with unacceptable terms and was ultimately replaced by men, as well as the allegedly anti-female comments made by Whitehair to Ladouceur, she has presented an inference of discrimination. However, the facts alleged do not create a marked inference of discrimination given: (1) the minimal evidence of sexually based animus by Whitehair — gender-related name calling in certain conversations not specifically connected to the adverse employment actions alleged; (2) that Whitehair admittedly had only limited input into the decisions at issue because Jeuvell was the ultimate decisionmaker, and there is no sexually based animus alleged against Jeuvell; and (3) Ferrand does not point to co-workers in equivalent positions to hers that received higher bonuses or better terms of employment; rather, the unequal treatment alleged must be extracted from various inexact comparisons and subjective assessments of adverse employment actions.
Although the Court is not convinced that, based on the facts presented, the inference of discrimination here is strong, it will assume the existence of the fourth element, and therefore the sufficiency of Ferrand's prima facie case, by reason of the low threshold for satisfying the burden facing Ferrand, and because Credit Lyonnais has presented sufficient evidence for the Court to determine whether an issue of material fact exists as to Ferrand's sexual discrimination case to allow the claim to go to trial. See Viacom, 1996 WL 194299, at *4.
Credit Lyonnais presents legitimate business reasons for each of the alleged adverse employment actions asserted by Ferrand. First, with regard to her 2000 bonus, the Bank provides a detailed explanation as to why Ferrand received a $50,000 discretionary bonus, which was both considerable less than the bonus she received in her previous two years of employment and less than the bonuses received by two salespersons she supervised, both of whom are men. Credit Lyonnais explains, first, that discretionary bonuses are just that, discretionary as a matter of policy at least with regard to individuals — even if there are policies with regard to allocations of bonuses to departments. Second, the Bank asserts that bonuses are allotted each year by the amount of net profit generated by a desk and that, in 2000, Ferrand's desk produced a net profit that was less than expected. Specifically, Credit Lyonnais claims that the bonus pool for the year 2000 decreased substantially from the bonus allocated to Ferrand's desk for 1999 because the net income of FX Options decreased from $11.698 million in 1999 to $6.79 million in 2000, below the expectations set for Ferrand's department. Therefore, the total pool for bonuses for FX Options shrank accordingly.
Ferrand disputes the amount of revenue generated by the FX Options product line, indicating that the relevant number is $12 million, which exceeded the projected budget. However, as the employer, the Bank has the discretion to determine upon which numbers to base bonus pools, particularly when satisfying its burden of providing a legitimate business reason for allegedly discriminatory actions. Here, the Bank indicates that it based its bonus pool on an official Management Report Systems "MRS" report. (See Defendant's Reply Statement Pursuant to Local Civil Rule 56.1, dated July 2, 2003, ¶ 36.) Ferrand does concede that revenues were generally lower in 2000. Moreover, as the Bank points out, the pool itself was not alleged to be discriminatory, only Ferrand's share in the pool, which is not based on a particular formula.
Moreover, the Bank decided that a greater proportion of the bonus funds should be awarded to two key salespersons who had done particularly well that year and who the Bank did not want to lose. Finally, the Bank explained its policy of rewarding managers in good years with high bonuses but decreasing bonuses substantially during low performance years as a reflection of the overall satisfaction with the department. The overall discretionary policy of bonus awards expressed to employees and practiced at Credit Lyonnais makes such bonus allocations lie within the discretion of the Bank's managers. See, e.g., Bickerstaff v. Vassar College, 196 F.3d 435, 455 (2d Cir. 1999) ("Vassar alone has the right to set its own criteria for promotion and then to evaluate a candidate's fitness for promotion under them." Although Ferrand alleges that the pool was allocated differently than in previous years, such allocation is discretionary and justified by the business reasons provided by the Bank. Moreover, Jeuvell, who allegedly was the supervisor to mandate the new policy for bonuses, was new to this task and is entitled to set his own policy.See Gambello v. Time Warner Comm., Inc., 186 F. Supp.2d 209, 222 (E.D.N.Y. 2002) ("an inference of discrimination is even less permissable when a new supervisor is appointed, who is entitled to set his own standards and agenda.") Therefore, the legitmate business reasons justifying Ferrand's decreased bonus award of $50,000 are facially reasonable.
Credit Lyonnais also alleges that the bonus decision was made entirely by Jeuvell and that Whitehair had no input into the decision. Since Ferrand does not allege that Jeuvell harbored any discriminatary animus towards her, the Bank argues that the any inference of discrimination is inapplicable here. However, the record raises a dispute as to whether Whitehair was involved in the decision to allocate a $50,000 bonus to Ferrand for the year 2000. Jeuvell explicitly indicated that Ferrand's bonus decision was made jointly by him and Whitehair. (See Deposition of Joel Jeuvell ("Jeuvell Dep."), dated January 8, 2003, attached as "Jeuvell Tr." to the Affirmation of Lauren Krasnow ("Krasnow Aff."), dated April 7, 2003, at 23.) Jeuvell further testified that Whitehair asked for Jeuvell's input with regard to Ferrand's bonus for 2000, implying that although the $50,000 bonus recommendation was ultimately Jeuvell's, Whitehair was certainly involved in the decision-making process. (See Id. at 24.)
Credit Lyonnais also provides a legitimate business reason for transferring Ferrand to London, for the relocation package she was offered and for her termination following her refusal to relocate. Jeuvell, as he had done before with regard to global heads of derivatives, decided to centralize the global product line heads, including Ferrand as the head of FX Options, in London. (See Id. at 43-45.) Jeuvell explains that he did this to improve communication and collective decision-making. (See Id. at 120, 129-140, 142-143.) As Jeuvell and Whitehair were both in London, it is not irrational for Jeuvell to insist on London as the locale for the desired centralization.
Ferrand argues that the terms of her relocation package were below her expectations because her salary in London was less than in New York, there was no defined bonus scheme and she remained an at-will employee. Credit Lyonnais counters that her compensation for the transfer to London was based on the compensation paid to employees in London who held positions of responsibility comparable to Ferrand, with a five percent increase. Furthermore, Ferrand was offered stock options as an additional form of compensation. Although Ferrand says it was less than her salary in New York the Bank says it was higher. In any event, when Ferrand complained about the salary it was increased and, at that level, Ferrand concedes that her only remaining concerns were about the discretionary bonus policy and job security upon her move to London, aspects of her compensation that were admittedly present in her compensation for her position in New York.
Ferrand alleges in her Declaration ("Ferrand Decl."), dated May 22, 2003, that she was termated, without pointing to Jeuvell's request that she relocate to London, but rather recalls a statement by Jeuvell that "Whitehair cannot work with you. So I'm sorry, this is what we decided to do." (¶¶ 63-68.) However, from the entirety of the declaration, as well as her deposition and in her memorandum of law, Ferrand elaborates on the circumstances that directly led to her "termination," namely her refusal to relocate to London, which is the legitimate business reason given by the Bank. Therefore, Credit Lyonnais need not set forth a legitimate business reason as to why Ferrand was terminated, other than its explanation as to why it requested that she relocate to London, since the termination occurred because Ferrand refused to relocate to London.
With regard to the relocation package which Ferrand found unacceptable, the Bank again argues that the decision was Jeuvell's alone and not Whitehair's and that therefore any proof of Whitehair's discriminatory animus toward Ferrand is irrelevant. However, it is a matter of dispute between the parties as to whether Whitehair was involved in the decision. Namely, although the record supports the Bank's claim that Jeuvell made the ultimate determination that Ferrand be relocated to London, Jeuvell testified that Whitehair participated in setting the terms of Ferrand's relocation package. (Jeuvell Dep. at 54.)
Since Credit Lyonnais has set forth legitimate, non-discriminatory reasons for the adverse employment actions alleged by Ferrand, the burden shifts to Ferrand to demonstrate that the Bank's proffered reasons for its employment decisions are pretexts for discrimination. The standard for proving pretext is not negligible: "A reason can not be proved to be a `pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's, 509 U.S. 502, 515 (1993); see also Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 146 (2000). To survive summary judgment, a plaintiff must "establish a genuine issue of material fact whether through direct statistical or circumstantial evidence as to whether the employer's reason for discharging her is false and as to whether it is more likely that a discriminatory reason motivated the employer to make the adverse employment decision. Gallo v. Prudential Residential Serv. Ltd. Partnership, 22 F.3d 1219 (2d Cir. 1994). The factors to consider in deterimining whether pretext has been sufficiently demonstrated are: (1) the strenght of the plaintiff's prima facie case, (2) the probative value of the proof that the employer's explanation is false, (3) other evidence that supports or undermines the the employer's case. See Brown v. Society for Seaman's Children, 194 F. Supp.2d 182, 190 (E.D.N.Y. 2002) (citing Reeves, 530 U.S. at 146-149 and James v. New York Racing Ass'n, 233 F. Supp.3d 149, 156-157 (2d Cir. 2000)).
Ferrand does not demonstrate sufficient evidence to satisfy this burden on a motion for summary judgment. Ferrand first attempts to demonstrate pretext by claiming disparate treatment because her male subordinates and peers were treated more favorably than she was. Ferrand points to the fact that two male members of her subordinate sales-staff received higher bonuses than she did. But, these persons can not be characterized precisely as "similarly situated" as they were not in similar managerial positions, were found to have performed their particular functions well in 1999, and were specifically acknowledged by Ferrand and the Bank as persons who needed to be retained. See Shumway v. United Parcel Service Inc., 118 F.3d 60, 64 (2d Cir. 1997) ("To be `similarly situated,' the individuals with whom [the plaintiff] attempts to compare herself must be similarly situated in all material respects."); Ponticelli v. Zurich American Ins. Group, 16 F. Supp.2d 414, 427 (S.D.N.Y. 1998). Although subordinates, it is reasonable that individual salespersons could be considered more valuable and less replaceable than a manager whose department as a whole underperforms in a given year.
Moreover, the Bank points to two other department heads, both of whom are male, who received smaller bonuses than Ferrand in 2000 when their profitability was low and whose subordinates similarly received higher bonuses than they. (See Affidavit of Robin Moser in Support of Defendant's Motion for Summary Judgment, dated April 7, 2003, ¶ 15; Reply Declaration of Moser, dated June 30, 2003, ¶ 5). That one was the head of a department that produced no profit and the other received compensation from another source — an arbitration proceeding — does not detract from the persuasiveness of this evidence with regard to whether it was discriminitory to pay Ferrand less than her male subordinates. Furthermore, Whitehair also received less of a bonus in 2002 than two of his subordinates and the same as a subordinates in 2001. (See Reply Declaration of Jeuvell, dated June 26, 2003, at ¶ 7.)
Similarly, Ferrand's allegations that her transfer to London was discriminatory as compared to her male counterparts is not supported by the evidence. First, the actual decision to transfer Ferrand to London instead of Paris, as opposed to the terms of her relocation package, was made by Jeuvell, against whom discriminatory animus is not even asserted. Therefore, that Ferrand claims she was the only department head to be asked to be transferred, and that another department head was permitted to remain in Paris, could not have been grounded on discrimination as alleged. As to the terms of her relocation package, Ferrand produces no evidence that such terms were less beneficial than those pertaining to other similarly situated employees of the Bank. Similarly, Ferrand fails to demonstrate that the fact that she was terminated after refusing to relocate to London made her worse off than similarly situated male peers at Credit Lyonnais who refused to relocate. Ferrand's overall failure to offer evidence that she was treated worse than other male employees of the Bank who were similarly situated undermines her claim of discrimination. See Elmenayer v. ABF Freight Sys., Inc., 318 F.3d 130, 135 (2d Cir. 2003) ("Sufficient evidence of disparate treatment might have tended to prove pretext.") In sum, Ferrand does not sufficiently establish disparate treatment to undermine Credit Lyonnais's legitimate business reasons for its actions.
Credit Lyonnais alleges that Whitehair did not take part in the relocation decision, while Ferrand argues that it was part of his overall scheme to eliminate her. Although Ferrand and Ladouceur indicate that the transfer to Europe was part of Whitehair's overall scheme to get rid of her. Ferrand neither disputes that the ultimate decision to relocate her to London was Jeuvell's, nor does she provide any concrete evidence in support of this alleged scheme. (See Ladouceur Aff. ¶ 8; Ferrand ¶¶ 58, 59.) In fact she testified in her deposition that Whitehair did not object to Ferrand relocating to Paris instead of London. (See Deposition of Ferrand ("Ferrand Dep."), dated November 12, 2002, attached as "Ferrand Tr." to the Krasnow. Aff., at 143. Therefore, even drawing all inferences in her favor, as is required in deciding a motion summary judgment, Ferrand's conclusory allegations can not be credited as evidence at this stage in the proceedings.
Ferrand argues that because Jeuvell hired Xin He who was allowed to remain in Paris, evidence of pretext exists. However Xin He was not hired as a department head with Ferrand's level of responsibility. Ferrand also points to Guy Laffineur ("Laffineur"), a male global head of a product-line who was not required to move to London. The Bank argues that because Laffineur's product-line was very profitable in 2000, he was not required to move to London. While the Bank's explanation undercuts its argument that all global heads were to be centralized in London, the Bank asserts that because Ferrand's FX Options business had been merged into the global Foreign Exchange product line, headed by Whitehair in London, Jeuvell was more insistent that Ferrand join him and Whitehair in London. This distinction is not disputed by Ferrand and undermines her claim that she and Laffineur were similarly situated. Moreover, even assuming that Ferrand and Laffineur were similarly situated, the decision to relocate Ferrand to London was Jeuvell's decision and Ferrand does not allege that Jeuvell sexually discriminated against her.
Moreover, Ferrand fails to provide the necessary causal link between her allegations concerning certain allegedly discriminatory remarks made by Whitehair and the adverse employment actions asserted here. While it may have been the case that, as Ferrand alleges, Whitehair wanted her terminated and was responsible for her termination, such conduct is only actionable if Ferrand can demonstrate with sufficient evidence that it was sex discrimination that caused him to carry-out the employment actions at issue. See Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1988) (proof of pretext cannot rest upon "statements by decisionmakers unrelated to the decision process itself"); Smith v. Firston and Rubber Co., 875 F.2d 1329, 1330 (7th Cir. 1989) (plaintiff must provide evidence of the "requisits nexus between the statements made by defendant and the demotion of plaintiff to demonstrate that plaintiff's race [or sex] was a factor' in the defendant's decision.")McFadden v. State Univ. of New York College at Brockport 195 F. Supp.2d 436, 448 (W.D.N.Y. 2002).
Ferrand's proof of pretext based on discriminitory comments is outlined in the Affidavit of Ladouceur ("Ladouceur Aff."), dated May 28, 2003. Ladouceur states that, when discussing Ferrand with him, Whitehair often expressed open hostility toward Ferrand, and frequently used such epithets as "bitch," "cunt," "whore," "slut" and "tart" referring to her. (Ladouceur Aff. ¶ 5.) Moreover, Ladouceur indicates that such epithets were also used by Whitehair when referring to another woman at Credit Lyonnais, Chantal Lanchon, who was the Global Head of Capital Markets until the end of 2000. (Id. ¶ 6.)
However, these "stray remarks in the workplace" are not alleged to have been made as part of any adverse discriminatory employment action taken against Ferrand by Whitehair. Therefore, this evidence falls short of making a showing under McDonnell Douglas, because proof that sexism "caused the decision" is necessary for a finding of pretext. Kriss v. Sprint Comm. Co., Ltd. Partnership, 58 F.3d 1276, 1283 (8th Cir. 1995). As Justice O'Connor explained in Price Waterhouse.
Remarks at work that are based on sex stereotypes do not inevitably prove that gender played a part in a particular employment decision. The plaintiff must show that the employer actually relied on her gender in making its decision.490 U.S. at 251. Based on this guidance, the Seventh Circuit determined that, in order to suffice as evidence of animus in support of a claim for discrimination, remarks that might convey gender or other impermissible bias must be related to the employment decision in question. See McCarthy v. Kemper Life Ins. Co., 924 F.2d 683, 686 (7th Cir. 1991); Rush v. McDonald's Corp., 966 F.2d 1104, 1116 (7th Cir. 1992) (remarks made by plaintiff's supervisors, "uttered in unrelated contexts, were not probative of discrimination."; Beard v. Whitley County REMC, 840 F.2d 405, (7th Cir. 1988) (various statements allegedly evidencing anti-female animus raised the `metaphysical doubt' which the Supreme Court in Matsushita, 475 U.S. at 586, found insufficient to create a genuine issue of material fact).
Although not explicitly adopted by the Second Circuit, the Seventh Circuit's doctrine has been readily applied by district courts in this Circuit. See Smith v. Revival Home Health Care, Inc., No. 97 Civ. 4415, 2000 WL 335747 at *4 (E.D.N.Y. March 28, 2000) ("Statements made long before and not in the context of the adverse action cannot support a claim of discriminatory motive for that action.")Burrel v. Bensten, No. 91 Civ. 2684, 1993 WL 535076 at *10 S.D.N.Y. Dec. 21, 1993); De La Cruz v. New York City Human Res. Admin. Dep't of Soc. Serv., 884 F. Supp. 112 (S.D.N.Y. 1995) (employer's motion for summary judgment granted where plaintiff's work contained "numerous and critical errors," despite allegations of stray racial remarks") see also Turner v. North American Rubber, Inc. 979 F.2d 55, 59 (5th Cir. 1992) ("comments [that] are vague and remote in time and administrative hierarchy" can not support a finding of pretext); Gagne v. Northwester Nat's Ins. 881 F.2d 309, 314-316 (6th Cir. 1989) ("single, isolated discriminatory" and possibly "facetious" comment made by plaintiff's supervisor insufficient to avoid summary judgment.).
Here, therefore, Whitehair's stray remarks Ladouceur referred to are insufficient to meet Ferrand's burden of proving that the legitimate reasons provided by Credit Lyonnais for the adverse employment actions Ferrand alleges are pretextual. Ladouceur offers no specific context for the remarks, nor does he indicate that they were said in reference or leading to the alleged adverse employment actions at issue here and Ferrand does not otherwise sufficiently establish that they were. The one derogatory comment with a contextual reference that Ladouceur reports Whitehair made is: "Credit Lyonnais shouldn't be giving that bitch any fucking options." (Ladouceur Aff. ¶ 10.) However, it is uncontested that Ferrand received stock options and therefore the comment is not linked to an adverse employment action. There is simply insufficient proof that the cause of such allegedly adverse employment actions was gender bias. See Rush, 966 F.2d at 1117.
Moreover, the epithets allegedly used by Whitehair do not even necessarily signify gender bias. The epithets were certainly "crude, gender-specific vulgarit[ies]," but, even if used by Whitehair towards two women, do not necessarily indicate that Whitehair had a misogynist attitude which can be deflected to illuminate an intent behind any adverse employment action taken by Credit Lyonnais against a particular woman. See Kriss, 58 F.3d at 1281. The failure of the alleged epithets to demonstrate mysognistic intent is clarified when compared to instances where stray remarks have been found to be linked to adverse employment actions. For instance, in Cook v. Arrowsmith, 69 F.3d 1235, 1239 (2d Cir. 1995), evidence was provided that the defendant employee referred to one woman employee as an "overpaid sour-pussed bitch" and to a second as "another woman who has risen to a level of incompetence." These remarks create the requisite link, missing in this case, between gender bias and work-related performance such that causation between an employer's animosity and a termination could reasonably be found.
The other case cited by Ferrand to support her claim that the link between Whitehair's use of these offensive epithets is sufficiently connected to the alleged adverse employment actions is Burns v. McGregor Electronic Indus., Inc., 989 F.2d 959, 964 (8th Cir. 1993). Burns, however, is a sexual harassment hostile work environment claim — not a disparate treatment discrimination claim as is alleged here — in which the plaintiff's supervisor, beyond using language toward the plaintiff in her presence, was alleged to have made sexual advances toward the plaintiff on numerous occasions. Id. The district court held that although the employer's conduct was unwelcome and created a hostile work environment, "the plaintiff was not an `affected' individual" because she had appeared in nude poses in lewd magazines. Id. at 962. The Eighth Circuit found this holding to be an incorrect application of federal law. Id. at 963. Moreover, the Burns court found that given the overall hostile work environment established by the plaintiff, that the plaintiff quit after being called abusive names, such as "bitch," "slut," and "cunt" was sufficient evidence of causation. Id. at 963-964. In this case, on the other hand, an overall hostile and abusive work environment based on sex has not been established or even alleged.
Finally, another factor in determining whether so-called "stray" remarks may be considered as causally connected to an adverse employment action is their proximity to the employment events at issue. See Bagdasarian v. O'Neill, No. 00 Civ. 0258E, 2002 SL 1628722, at *4 (W.D.N.Y. July 17, 2002) (stray remarks made one year before a termination decision not considered evidence of discriminatory intent);Layaou v. Xerox Corp., 999 F. Supp. 426, 433 (W.D.N.Y. 1998); Geier v. Medtronic, Inc., 99 F.3d 238, 242 (7th Cir. 1996) ("To be probative of discrimination, isolated comments must be contemporaneous with the [decision in question] or causally related to the . . . decision making process. Here, Ladouceur does not indicate with any specificity when these allegedly discriminatory remarks occurred, just that Whitehair frequently used such words as "bitch" in referring to Ferrand. (Ladouceur Decl. ¶ 5.) Such testimony does not provide the temporal or causal connection necessary to sustain a finding of pretext in this case.
In sum, the Court is not persuaded that sufficient evidence has been adduced by Ferrand to support a finding by a rational jury that the alleged adverse employment actions taken by the Bank occurred because of Ferrand's gender. See Jetter v. Knothe Corp., 324 F.3d 73, 76 (2d Cir. 2003); Lapsley v. Columbia Univ. College of Physicians Surgeons, 999 F. Supp. 506, 514 (S.D.N.Y. 1998).
C. IMPLIED CONTRACT FOR BONUS COMPENSATION
New York courts have held that the issue of "whether unpaid compensation constitutes a discretionary bonus or nonforfeitable earned wages is a question of fact." Kaplan v. Capital Co. of America LLC, 747 N.Y.S.2d 504, 505 (App.Div. 1st Dep't 2002) (citing Mirchel v. RMJ Sec. Corp., 613 N.Y.S.2d 876, 878 (1st Dep't 1994; See also Weiner v. Diebold Group, 568 N.Y.S.2d 959 App. Div. 1st Dep't); (whether bonus plan constitutes a discretionary bonus or earned wages is an issue of fact); Harden v. Warner Amex Cable Comm., 642 F. Supp. 1080, 1096 (S.D.N.Y. 1986) (agreement to pay annual bonus enforceable where it constitutes "an integral part of plaintiff's compensation package"). The Mirchel court held that "an implied contractual relationship may be established by conduct of the parties, as well as by express agreement." 913 N.Y.S.2d at 878. Moreover, a bonus that has been established to be compensation as a matter of right cannot be withheld because an employee did not work until the date the bonus was to have been paid. Id. at 879.
The question that arises in this case, therefore, is whether the conduct of the parties or an express agreement between them established that a significant bonus — at least greater than $50,000 as Ferrand's implied-in-fact contract claim relates to the year 2000 as well as the year 2001 — was to be paid to Ferrand as a matter of course as part of her salary.
New York courts have applied an exception to the factual nature of this determination where "the bonus compensation sought was clearly stated in the company handbook to be purely discretionary." Kaplan, 747 N.Y.S.2d at 505; see also Hall v. United Parcel Serv. of Am., Inc., 555 N.E.2d 273, 279 (N.Y. 1990) ("An employee's entitlement to a bonus is governed by the terms of the employer's bonus plan."); Truelove v. Northeast Capital Advisory Inc., 738 N.E.2d 770, 773 (N.Y. 2000) (same). In this case, the discretionary nature of the bonuses paid to Ferrand is clearly set forth in both the Employee Handbook she was given upon her hiring and from the fact that there are two means of earning bouses at the Bank, through a guaranteed bonus and an explicitly discretionary bonus. Credit Lyonnais maintains an Employee Handbook, which was issued to Ferrand when she commenced employment at the Bank. The Employee Handbook contains an explicit discretionary bonus policy: "Management . . . may, in its discretion, grant a bonus to any or all of its employees . . . Payment of a bonus is not guaranteed; management may choose to grant or not grant a bonus at year-end to to any or all of its employees." This provision of the Employee handbook is clear and should have put Ferrand on notice of the possibility that she would receive little or no bonus in a given year.
That in Kaplan, 747 N.Y.S.2d at 505, unlike in this case, the court pointed out that the handbook's "terms would govern the employment relationship and that no other promises regarding the terms of employment could be made, except by specific individuals and in writing" does not make the holding inapposite here, particularly where Ferrand does not allege that an express promise of a yearly bound greater than $50,000, even if she were terminated before the end of the year, was ever made to her orally. See Truelove, 738 N.E.2d at 773 (where bonus plan explicitly predicated the continuation of bonus payments upon the recipient's continued employment status, vested right to bonus did not exist). Therefore, an established course of dealing entitling Ferrand to a large bonus, as she received during her first two years of employment, can not be established by Ferrand and therefore must be precluded as a matter of law.
Ferrand attempts to rebut this principle of New York law by arguing that because the Bank's Employee Handbook is not contractual in nature, its policies do not bind the employees. Ferrand cites Lobosco v. New York Telephone Co., 751 N.E.2d 462 (N.Y. 2001), which held that "[r]outinely issued employee manuals, handbooks and policy statements should not lightly be converted into binding employment agreements." More specifically, because a disclaimer existed in the handbook at issue inLobosco, an employee could not hold an employer to the explicit terms of that handbook. However, the non-contractual nature of a handbook does not render inapplicable an employer's policy of giving bonuses on a discretionary basis in determining whether it is feasible that an implicit course of conduct of nondiscretionary, nonforfeitable bonus allotment existed. As the Kaplan court explained, even if the policies embodied in the handbook were not intended to be contractual, the provision indicating that bonuses are discretionary should not be read to "render the handbook wholly nugatory." 747 N.Y.S.2d at 505. Therefore, the legal holding stated in Kaplan applies here to preclude raising a claim for an implied contract for a guaranteed bonus where there was an explicit policy in the Bank's Employee Handbook setting forth a policy of discretionary bonuses.
Moreover, Ferrand's claim for an implied contractual right to a larger bonus in 2000 and for a bonus in 2001 is rendered even more specious by her admission that for the year 1998 she did have a contractual right to a guaranteed bonus, but that in 1999 she no longer had a guaranteed bonus. That such a distinction is acknowledged by Ferrand undermines her own claim. (See Deposition of Ferrand, undermines as "Ferrand Tr." to the Krasnow Aff. at 51-52.)
D. QUANTUM MERUIT
Ferrand also claims that, as an alternative it her breach of implied contract claim, she is entitiled it additional payment for the value of her services for 2000 and 2001 under the doctrine of quantum meruit.
To sustain a claim for quantum meruit. Ferrand must establish: (1) the performance of services in good faith; (2) the acceptance of the services by the employer; (3) an expectation of compensation for those services; and (4) the reasonable value of the services. See Lehrer McGovern Bovis v. New York Yankees, 615 N.Y.S.2d 31, 34 (App.Div. 1st Dep't 1994). In light of the Bank's discretionary bonus policy, and Ferrand's lack of a contractual right to a bonus beyond her salary, of which she was admittedly apprized, Ferrand does not satisfy her burden of establishing an issue of material fact in dispute with regard to the third prong of such a claim.See Kaplan, 747 N.Y.S.2d at 505. Therefore, her claim for quantum meruit for compensation for services rendered can not survive summary judgment.
E. NEW YORK LABOR LAW
Ferrand next claims that Credit Lyonnais's failure to pay her a large enough bonus in 2000 and any bonus in 2001 violated New York Labor Law § 193. By its very terms, including its title, § 193 applies to "Deductions from Wages." Moreover, the New York Court of Appeals has clearly held that § 193 applies only to deductions from wages and not to any compensation paid to an employee. See Huddas v. FritoLay, Inc., 683 N.E.2d 322, 325 (N.Y. 1997). Furthermore, in all the cases cited by Ferrand that apply § 193, deductions from wages are the subject matter of the alleged violations. See, e.g, Tuttle v. Go. McQuesten Co., Inc., 642 N.Y.S.2d 356, 357-58 (App.Div.3d Dep't 1996) ("[P]laintiff was granted partial summary judgment by successfully establishing that the withheld moneys constituted "wages" pursuant to Labor Law § 190 and, thus, under Labor Law article 6, defendant was not entitled to withhold these payments as a matter of law.") (citing Labor Law § 193);Klepner v. Codata Corp., 527 N.Y.S.2d 158, 160 (N.Y.Sup.Ct. 1988; Maggione v. Bero Constr. Corp., 431 N.Y.S.2d 943, 944 (N.Y.Sup.Ct. 1980) ("The principal question to be determined is whether section 193 of Article 6 of the labor law, which prescribes deductions from wages, applies to persons employed in an executive capacity. I hold that it does.") The Court is not persuaded that § 193 is at all relevant to Ferrand's claim for bonus compensation for the years 2000 and 2001; and therefore, such a claim can not be sustained.
New York Labor Law § 193 states:
1. No employer shall make any deduction from the wages of an employee, except deductions which:
a. are made in accordance with the provisions of any law or any rule or regulation issued by any governmental agency; or
b. are expressly authorized in writing by the employee and are for the benefit of the employee; provided that such authorization is kept on file on the employer's premises. Such authorized deductions shall be limited to payments for insurance premiums, pension or health and welfare benefits, contributions to charitable organizations, payments for United States bonds, payments for dues or assessments to a labor organization, and similar payments for the benefit of the employee.
2. No employer shall make any charge against wages, or require an employee to make any payment by separate transaction unless such charge or payment is permitted as a deduction from wages under the provisions of subdivision one of this section.
3. Nothing in this section shall justify noncompliance with article three-A of the personal property lax relating to assignment of earnings, nor with any other law applicable to deductions from wages.
Finally, Ferrand alleges that she is entitled to severance payments under the Employee Retirement Income Security Act ("ERISA"), 29 U.S.C. § 1144 (1974). Ferrand argues that the Bank's severance plan is covered by ERISA because it requires an "ongoing administrative program." See Kosakow v. New Rochelle Radiology Assoc. P.C., 274 F.3d 706, 736 (2d cir. 2001). Ferrand points to the testimony of John Quinn ("Quinn"), Head of Human Resources at Credit Lyonnais, who indicated that the Bank pays severance on a case-by-case basis. (Deposition of Quinn ("Quinn Dep."), dated March 10, 2003, attached to the Krasnow Aff. at 15.) From this testimony alone, and without having received any promise of severance or alleging that Credit Lyonnais had a severance policy in place, Ferrand urges this Court to assume that it is therefore reasonable that the Bank's severance practices require an ongoing administrative program covered by ERISA.
However, federal case law instructs otherwise. The Supreme Court explained that if an employer has an administrative scheme for paying severance benefits, that scheme is covered by ERISA, but that some severance obligations do not necessitate an "ongoing administrative scheme." Fort Halifax Packing Co., Inc. v. Coyne, 482 U.S. 1, 18 (1987);see also Schonholz v. Long Island Jewish Medical Ctr., 87 F.3d 72, 75 (2d Cir. 1996). Moreover, "those that do not, . . . simply do not involve a state law that `relates to' an employee benefit `plan,'" and therefore is not covered by ERISA. Id. (citing ERISA, 29 U.S.C. § 1144(a)). In other words, ERISA covers `plans' not `benefits': "Only a plan that embodies a set of administrative practices vulnerable to the burden that would be imposed by a patchwork scheme of regulation." Id. at 11. Therefore, if a company does not have a plan; but rather, "the employer assumes no responsibility to pay benefits on a regular basis, and thus faces no periodic demands on its assets that create a need for financial coordination and control," a plan is not established. Id. at 12.
In Fort Halifax, the Court held that severance benefits payable upon a single-triggering event, in that case a plant closing, as opposed to severance benefits administered in accordance with a set plan, were not covered by ERISA. Id. Specifically, because no administrative plan was necessary for such a scheme to be instituted, ERISA preemption was not found. Id.; see also James v. Fleet/Norstar Fin. Group, Inc., 992 F.2d 463, 465 (2d Cir. 1993) (promise to pay workers who continued employment until the closing did not constitute an employee welfare benefit plan because "the nature of the payments did not require an ongoing administrative employer program to effectuate them.")
In order to bring an action under ERISA, a plaintiff must demonstrate that the Bank established a benefit plan, not just that a plan was possible. See Dennis v. RSL COM U.S.A., No. 97 Civ. 5013, 1998 WL 409720, at *1 (S.D.N.Y. July 21, 1998) ("[I]n order to establish federal jurisdiction under ERISA, [plaintiff] must show that [defendant] established a "plan, fund, or program" of the type covered by ERISA . . .") In this case, Ferrand merely extrapolates from Quinn's statement that severance is sometimes awarded on an individual basis, to the likely existence of a severance plan at the Bank, although she provides no evidence that such a plan actually exists. Credit Lyonnais, in response, indicates that no such severance plan exists. The Bank explains that the Employee Handbook does not indicate the existence of a set severance policy, that it does not have plan documents, plan administrators, plan fiduciaries, procedures or moneys set aside in trust. Although the existence of a plan might be found in spite of the lack of such written policies, see Scott v. Gulf Oil Corp., 754 F.2d 1499, 1503 (9th Cir. 1985), the absence of such indicators and policies "weighs against the finding of an ERISA employee benefit plan." Dennis, 1998 WL 409720, at *3. Where the only evidence presented is that in individual cases severance has been awarded, without demonstrating what these benefits consisted of, how such benefits were calculated or how such benefits were administered, there is no evidence that such benefits were administered through a benefit plan to allow such a claim to proceed to trial. See Id. at *4. At this stage in the proceedings, in order to survive summary judgment, Ferrand must provide some evidentiary basis, beyond conjecture, for establishing the existence of an ERISA plan, not just occasional payments of severance benefits on a case-by-case basis. Therefore, Ferrand's ERISA claim must be dismissed.
G. MOTION TO STRIKE
In light of the Court's decision on the Bank's motion for summary judgment, dismissing the Complaint in its entirety, the Court need not consider the Bank's Motion to Strike Inadmissible Matter Contained in the Declaration of Plaintiff Maia Ferrand and the Affidavit of Alex Ladouceur, dated July 2, 2003. Therefore, regardless of any merit it may have, the Motion to Strike is dismissed.
For the reasons indicated above, it is hereby
ORDERED that Credit Lyonnais's motion for summary judgment is granted in its entirety.
ORDERED that Credit Lyonnais's Motion to Strike Inadmissible Matter Contained in the Declaration of Plaintiff Maia Ferrand and in the Affidavit of Ladouceur is dismissed.
The Clerk of the Court is directed to close this case.