Petrisch v. HSBC Bank USA, Inc. et al
ORDER granting 55 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, defendants' motion for summary judgment is granted in its entirety. The Clerk of the Court is respectfully requested to enter judgm ent in favor of defendants and against plaintiff and close this case. Counsel for plaintiff, Mr. Stephen C. Jackson, Esq., is respectfully directed to serve a copy of this Memorandum and Order on his client immediately and note service of the same on the docket no later than April 2, 2013. In light of Mr. Jackson's recent suspension from the practice of law before the Eastern District of New York, see In re Jackson, No. 13-MC-25 (E.D.N.Y. Jan. 16, 2013), the court has taken the addit ional precaution of sending by overnight mail, with receipt verification, a copy of this Memorandum and Order to plaintiff at the following addresses, which were procured from documents in the evidentiary record and via web search: (1) 350 A Merrick Rd., Apt. K, Rockville Centre, NY, 11570; and (2) 405 E. 92nd Street, Apt. 20F, New York, NY 10128. The Clerk of the Court is instructed to send a copy of the judgment and an appeals packet to plaintiff at the above two addresses. Ordered by Judge Kiyo A. Matsumoto on 3/28/2013. (Tolentino, Raymond)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
ANNA E. PETRISCH,
NOT FOR PUBLICATION
MEMORANDUM AND ORDER
HSBC BANK USA, INC., JOHN
KOURKOUTIS, and MARLEN KATZ,
MATSUMOTO, United States District Judge:
Plaintiff Anna E. Petrisch (“plaintiff”) commenced
this action against HSBC Bank USA, National Association (“HSBC”
or “the bank”), 1 John Kourkoutis (“Kourkoutis”), and Marlen Katz
(“Katz”) (collectively, “defendants”), alleging employment
discrimination on the basis of her age, national origin, and
sex, in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. §§ 2000e et seq., 42 U.S.C. § 1981
(“Section 1981”), the New York State Human Rights Law
(“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”).
(See generally Complaint dated 7/15/2007 (“Compl.”).)
Plaintiff inaccurately names “HSBC BANK USA, INC.” as a
defendant in this action. As noted by defendants, “HSBC Bank USA, National
Association” is the correct name of the financial institution that plaintiff
intends to sue. (ECF No. 56, Memorandum in Support of Motion for Summary
Judgment (“Defs.’ Mem.”) at 1.) The Clerk of the Court is respectfully
directed to amend the caption on the docket to reflect this change.
Plaintiff alleges that defendants subjected her to a
hostile work environment because of her age, 2 national origin,
and sex and unlawfully retaliated against her for engaging in
Plaintiff further claims that defendants
Kourkoutis and Katz are subject to individual liability under
the NYSHRL and NYCHRL as employers and aiders/abettors of
unlawful discriminatory conduct. 3
Defendants now move for summary judgment pursuant to
Federal Rule of Civil Procedure 56, seeking dismissal of
plaintiff’s Complaint in its entirety. (ECF No. 55, Defendants’
Motion for Summary Judgment dated 1/20/2012 (“Defs.’ Mot.”).)
For the reasons set forth below, defendants’ motion is granted.
The following facts, taken from the parties’ Rule 56.1
statements and the exhibits and deposition testimony cited and
annexed to the parties’ motion papers, are undisputed unless
The court has considered whether the parties
have proffered admissible evidence in support of their positions
and has viewed the facts in the light most favorable to
In this action, plaintiff has not asserted a claim pursuant to
the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. §§ 621
et seq. Accordingly, plaintiff’s age-based discrimination claims proceed
under the NYSHRL and NYCHRL only.
Although plaintiff alleged a constructive discharge claim
against defendants in her Complaint, (Compl. ¶ 14), she abandoned her
constructive discharge claim during oral argument on defendants’ motion for
summary judgment. (ECF No. 66, Transcript of Oral Argument on Defs.’ Mot.
held on 9/7/2012 (“Tr.”) at 11.) Accordingly, the court need not discuss
that claim in ruling on defendants’ motion for summary judgment.
plaintiff. See Spiegel v. Schulmann, 604 F.3d 72, 77, 81 (2d
Plaintiff, a Hispanic female in her sixties, has
several years of experience in the commercial banking industry
and began working for HSBC in June 2005. (See Compl. ¶ 5; ECF
No. 57, Defendants’ Rule 56.1 Statement of Undisputed Material
Facts (“Defs.’ Rule 56.1 Stmt.”) ¶ 1; ECF No. 46, Plaintiff’s
Response to Defendant’s Rule 56.1 Statement (“Pl.’s Rule 56.1
Resp.”) ¶ 1; ECF No. 58, Exh. 1, Deposition of Anna Petrisch on
1/8/2010 (“Petrisch Dep. – 1/8/10”) at 14:1-15:4, 97:12-98:19;
ECF No. 58, Exh. 3, Deposition of Anna Petrisch on February 24,
2011 (“Petrisch Dep. - 2/24/11”) at 150:13-18.)
The details of
plaintiff’s employment history at HSBC, the allegations giving
rise to the instant action, and the relevant procedural history
are set forth in further detail below.
Plaintiff’s Employment at HSBC
Rego Park Branch Employment Interview
In 2005, plaintiff interviewed for an assistant sales
manager position in the HSBC Rego Park Branch (the “Rego Park
Branch”). (Defs.’ Rule 56.1 Stmt. ¶ 2; Pl.’s Rule 56.1 Resp.
¶ 2; Petrisch Dep. – 1/8/10 at 14:23-15:9.)
interview, Rego Park Branch Manager John Kourkoutis spoke with
plaintiff about her job experience at other financial
institutions and her fluency in both English and Spanish. (See
ECF No. 58, Exh. 4, Deposition of John Kourkoutis (“Kourkoutis
Dep.”) at 11:17-12:23.)
Kourkoutis testified that Plaintiff’s
Spanish language skills were important because HSBC’s clientele
in Rego Park included many Spanish-speaking individuals. (Id. at
On June 6, 2005, shortly after her interview with
Kourkoutis, plaintiff was hired as the assistant sales manager
of the Rego Park Branch. (Defs.’ Rule 56.1 Stmt. ¶¶ 1-2; Pl.’s
Rule 56.1 Resp. ¶¶ 1-2.)
In her capacity as assistant sales
manager, plaintiff reported directly to Kourkoutis and was
responsible for coordinating the branch’s overall sales,
organizing branch meetings, internal contests, and campaigns,
and improving the branch’s profitability and productivity. (See
Defs.’ Rule 56.1 Stmt. ¶ 3; Pl.’s Rule 56.1 Resp. ¶ 3;
Kourkoutis Dep. at 11:9-16.)
September 2005 Action Plan
On September 23, 2005, three months after plaintiff
was hired, Kourkoutis spoke with plaintiff regarding her work
performance and thereafter placed her on an Action Plan. (See
Defs.’ Rule 56.1 Statement ¶ 4; Pl.’s Rule 56.1 Resp. ¶ 4; ECF
No. 58, Exh. 6, E-mail of John Kourkoutis Memorializing
September 2005 Action Plan (“September 2005 Action Plan”).)
the September 2005 Action Plan, Kourkoutis outlined
administrative and strategic goals for plaintiff’s improvement
as the new assistant sales manager of the Rego Park Branch and
indicated that he “want[ed] to see [plaintiff] succeed.”
(September 2005 Action Plan.)
“proficien[cy] in opening DDA & TDA accounts,” Kourkoutis noted
that plaintiff “must lead by example.” (Id.)
however, alleges that Kourkoutis instituted the September 2005
Action Plan in retaliation to plaintiff’s complaints about
Kourkoutis’ alleged discriminatory and fraudulent banking
practices. (Pl.’s Rule 56.1 Resp. ¶ 4; Petrisch Dep. – 11/23/10
Specifically, plaintiff testified that she
“know[s]” she was placed on the September 2005 Action Plan
“because [she] was a whistleblower.” (Petrisch Dep. – 11/23/10
2005 Executive Performance Management Review
On February 28, 2006, Kourkoutis issued plaintiff’s
2005 Executive Performance Management Review (“2005 Performance
Review”), giving plaintiff a “4” out of “5” overall assessment
rating. 4 (Defs.’ Rule 56.1 Statement ¶ 5; Pl.’s Rule 56.1 Resp.
¶ 5; ECF. No. 58, Exh. 7, 2005 Performance Review at 7.)
2005 Performance Review, Kourkoutis acknowledged that plaintiff
had “extensive experience as an Assistant Manager” but noted
that plaintiff faced “difficulties adjusting to the way HSBC
A rating of “4” indicated that plaintiff “[did] not meet
expectations and did not consistently perform duties as outlined.” (See ECF
No. 58, Exh. 9, 2006 Executive Performance Management Review (“2006
Performance Review”) at 1.)
does business and has not acclimated to [HSBC’s] systems and . .
. procedures.” (2005 Performance Review at 4.)
identified several other areas of needed improvement including
plaintiff’s communication skills, work efficiency, and use of
HSBC’s technology systems. (Id. at 5-6.)
Kourkoutis explained that plaintiff often speeds through client
interactions without understanding that “the demographic area .
. . in Rego Park and client investment sophistication is
different and higher than in Brooklyn,” where plaintiff
previously worked. (Id. at 4.)
Further, Kourkoutis noted that
plaintiff occasionally “speaks so quickly” that he must “ask her
to repeat herself.” (Id. at 6.)
Plaintiff claims that this
comment was targeted toward her accent and therefore evinces
Kourkoutis’ hostility towards her national origin. (Pl.’s Rule
56.1 Resp. ¶ 15.)
Despite plaintiff’s weaknesses, Kourkoutis commended
plaintiff’s passion for her job, recognizing that “[s]he cares,
and that is not something that you often come across in this
business.” (2005 Performance Review at 6.)
described his plans to develop an action plan for plaintiff to
allow her to “get back on track and open other options for her.”
Plaintiff signed the 2005 Performance Review “under
protest” on February 28, 2006 because of her disagreement with
Kourkoutis’ management style. (See Defs.’ Rule 56.1 Statement
¶ 6; Pl.’s Rule 56.1 Resp. ¶ 6; ECF No. 58, Exh. 8, Plaintiff’s
Signature of 2005 Performance Review; Petrisch Dep. - 11/23/2011
2006 Performance Improvement Plan
On April 6, 2006, Kourkoutis determined that
plaintiff’s performance had “been below expectations,” and
placed plaintiff on a Performance Improvement Plan (“PIP”) from
April 7, 2006 until June 6, 2006 (“2006 Performance Improvement
Plan” or “2006 PIP”). (Defs.’ Rule 56.1 Statement ¶ 7; Pl.’s
Rule 56.1 Resp. ¶ 7; ECF No. 60, Certification of John
Kourkoutis in Support of Defendants’ Summary Judgment Motion
(“Kourkoutis Cert.”) ¶ 3.)
In that 2006 PIP, Kourkoutis stated
that plaintiff would be required to achieve the goals listed in
the plan during the two-month PIP period. (ECF No. 60, Exh. 1,
2006 PIP at 1.)
Specifically, Kourkoutis indicated that
plaintiff must know all HSBC policies and procedures to
eliminate errors, improve her management and communication
skills, and earn her professional sales licenses. (Id. at 2.)
Kourkoutis explained that he enrolled plaintiff in training
classes to improve her skills in management and sales. (See id.)
Plaintiff testified that Kourkoutis issued the poor
performance evaluation in her 2006 Performance Improvement Plan
to retaliate against plaintiff for complaining about purported
fraudulent activity and because of her disability; however,
plaintiff does not assert any claims for disability-based
discrimination. 5 (Petrisch Dep. – 2/24/11 at 142:4-22.)
Plaintiff did not testify, however, that she made complaints
about discrimination against her on account of her age, sex,
national origin, or race. (See id.)
Nor did plaintiff testify
that defendants retaliated against her based on protected
activities concerning those characteristics. (Id.)
On April 7, 2006, one day after being placed on the
Performance Improvement Plan, plaintiff filed a formal “Ethics
and Compliance” report with HSBC’s employee tip line, alleging
that Kourkoutis, Financial Advisor Mark Dray, and Premier
Relationship Manager Marlen Katz fraudulently sold annuities to
certain customers who thought they were buying Certificates of
Deposit in order to increase their commissions. (Defs.’ Rule
56.1 Statement ¶ 8; Pl.’s Rule 56.1 Resp. ¶ 8; ECF No. 59,
Certification of Maria A. Malanga in Support of Defendant’s
Summary Judgment Motion (“Malanga Cert.”) ¶ 5; ECF No. 59, Exh.
1, Ethics and Compliance Report at 1-2.)
During her employee
tip line call, plaintiff reported that she witnessed Kourkoutis,
Katz, and Dray target older people, Hispanics, Asians, and
foreigners with limited-English proficiency. (Ethics and
Compliance Report at 1.)
Plaintiff reported that the fraudulent
Despite her allegation that Kourkoutis issued the 2006
Performance Improvement Plan because of her disability, plaintiff does not
assert a cause of action for disability discrimination under the NYSHRL,
NYCHRL, or the Americans with Disabilities Act of 1990 in her Complaint.
activity was ongoing at the Rego Park Branch since November
Alleged Discriminatory Incidents at Rego Park Branch
Plaintiff claims that her supervisors and co-workers
subjected her to sustained hostility and abuse during her tenure
at the Rego Park Branch.
In particular, plaintiff’s testimony
describes the following incidents involving Katz, Kourkoutis,
and three of plaintiff’s female co-workers. 6
Plaintiff testified that Katz, a co-worker who does
not supervise plaintiff, told her that she was “too old” on
three separate occasions. (See Petrisch Dep. – 1/8/10 at 127:2129:20; ECF No. 58, Exh. 5, Deposition of Marlen Katz (“Katz
Dep.”) at 8:17-24.)
According to plaintiff’s testimony, Katz
first called her “too old” after plaintiff stated that he had to
obey certain policies and procedures set forth by the Federal
Deposit Insurance Corporation. (Id. at 129:7-9.)
incident, Katz allegedly called plaintiff old again, although
plaintiff does not recall the date of this incident. (Id. at
On the third occasion, Katz purportedly called
plaintiff old in front of Kourkoutis, who allegedly failed to
call human resources about the comment. (Id. at 129:11-20.)
The evidentiary record before the court does not establish the
specific dates on which any of these alleged incidents occurred.
Plaintiff clarified that Katz was the only person to make
comments to her about her age. 7 (Id. at 74:11-19.)
Plaintiff testified that, on one occasion, plaintiff’s
supervisor Kourkoutis screamed at her to “concentrate” on
certain numbers attached to a bulletin board in the branch.
(Petrisch Dep. – 2/24/11 at 138:24-139:24.)
that she could not see the small-print on the bulletin board
because her vision was failing after her eye operation and was
thus embarrassed in front of her co-workers as a result of her
inability to see. (Id.)
In plaintiff’s view, Kourkoutis
screamed at her in order to embarrass her because of her age and
her national origin, but she did not present any evidence of
comments by Kourkoutis regarding her age and national origin.
(Petrisch Dep. – 1/8/10 at 96:9-97:17.)
that Kourkoutis also screamed at another Rego Park Branch
employee named Tanya. (Petrisch Dep. – 2/24/11 at 138:16-19.)
During her deposition, plaintiff also testified that Katz made
fun of the way she walked and talked. (Petrisch Dep. – 1/8/10 at 132:16-20.)
Plaintiff, however, acknowledged that she never heard Katz make fun of her
and instead testified that Katz did so only in front of the tellers as
captured by camera footage. (Id. at 132:24-133:20.) The court disregards
plaintiff’s testimony regarding Katz’s derogatory remarks about how plaintiff
walked and talked because plaintiff did not hear such remarks and thus had no
personal knowledge of those remarks. Nor did plaintiff submit any evidence
that the remarks were made. See DiStiso v. Cook, 691 F.3d 226, 230 (2d Cir.
2012) (“[W]here a party relies on affidavits or deposition testimony to
establish facts, the statements must be made on personal knowledge, set out
facts that would be admissible in evidence, and show that the affiant or
declarant is competent to testify on the matters stated.” (internal quotation
Plaintiff further testified that Kourkoutis
discriminated against her because she was Hispanic by failing to
“protect [her]” from her co-workers who allegedly harassed her.
(Petrisch Dep. – 1/8/10 at 89:4-10.)
Plaintiff believed that
Kourkoutis was “listening to [her] . . . [and] knew about [her]
problem[s]” with her co-workers but nevertheless permitted the
hostility toward her. (Id. at 97:18-23.)
stated that “Kourkoutis was the problem because he allow[ed] all
these staff to make fun of [her], to all Hispanic, [to] the way
[she] dress[ed].” (Id. at 110:17-19.)
Yet, plaintiff also
submitted evidence indicating that Kourkoutis e-mailed the Rego
Park Branch staff with the following warning: “I would expect
that when you are completing the sales board in the back, that
you put down your own results. Not anyone else’s. I certainly do
not expect anyone to be [disrespectful] to any colleagues.” (ECF
No. 64, Exh. 1, E-mails from John Kourkoutis to HSBC Staff
(“Kourkoutis E-mails”) at 6.)
According to plaintiff, Kourkoutis took away
plaintiff’s “privileges” of serving as the officer in charge of
the branch during his absence. (Petrisch Dep. – 1/8/10 at 97:2498:19.)
Plaintiff stated that Kourkoutis took away these
privileges because she is Hispanic, over forty years old, and
because of her complaints about defendants’ purported fraudulent
banking activity. (Id. at 98:16-19.)
Kourkoutis testified that
he sent at least one e-mail to the Rego Park Branch staff
informing them that plaintiff would no longer be in charge in
his absence, but Kourkoutis stated that he does not recall how
many times he sent that e-mail. (Kourkoutis Dep. at 115:16-25.)
Plaintiff has submitted e-mails sent by Kourkoutis between
September and November 2006 in which Kourkoutis named another
HSBC employee as the officer in charge in his absence.
(Kourkoutis E-mails at 1-2, 5, 9.)
Plaintiff further testified that Kourkoutis asked her
to take HSBC training classes in Jersey City, New Jersey instead
of in New York, closer to plaintiff’s Long Island residence
because of her age and national origin. (See Petrisch Dep. –
1/8/10 at 92:4-94:1.)
Plaintiff stated that other HSBC
employees “went to New York [for] the classes” and testified
that she “belie[ved]” Kourkoutis wanted her to go to New Jersey
because of her national origin and age. (Id. at 92:9-12)
Plaintiff admitted that she “cannot say what [Kourkoutis was]
thinking” in requiring her to go to New Jersey for classes,
noting only that she “can say [her] feeling[s]” that he required
her to do so based on her age, sex, national origin, and
whistle-blower status. (Id. at 143:18-144:4.)
Plaintiff further testified that she was not invited
to “pow wow” meetings with Kourkoutis, Katz, and Dray, as well
as other men, because she is a woman. (Id. at 138:21-139:17.)
Plaintiff acknowledged, however, that she sometimes saw one of
her female co-workers, Katrina Nittis, attend those “pow wow”
meetings. (Id. at 140:4-10.)
Plaintiff expressed that she does
not know what was discussed during the alleged “pow wow”
meetings or whether additional female co-workers ever attended
those meetings. (Id. at 140:4-24, 143:10-14.)
Finally, plaintiff testified that Kourkoutis wanted
her to leave the Rego Park Branch because of her age and
national origin and, on one occasion, urged her to take
disability leave. (Id. at 94:3-96:3.)
According to plaintiff’s
testimony, Kourkoutis specifically “wanted [plaintiff] to take a
leave of absence when [she] didn’t need a leave of absence.”
(Id. at 94:6-8.)
Plaintiff’s Female Co-Workers
Three of plaintiff’s female co-workers — Desiree
Greenfield, Nisreen Ali, and Katrina Nittis — allegedly told
plaintiff that they “don’t have to listen to [her]”; said “I
hate you” to plaintiff; and wrote “big zero” next to plaintiff’s
name on a blackboard in the Rego Park Branch. (Petrisch Dep. –
1/8/2010 at 71:1-72:13, 86:5-87:13; Petrisch Dep. – 2/24/11 at
Plaintiff testified that she believed her three
co-workers wrote “zero” next to her name because of her Hispanic
heritage and her age. (Petrisch Dep. – 1/8/2010 at 86:29-87:9.)
Plaintiff also testified that Rego Park Branch tellers told her
that Greenfield, Ali, and Nittis made fun of the way plaintiff
walked, talked, and dressed. 8 (Id. at 68:2-24, 86:5-8.)
plaintiff’s view, Greenfield, Ali, and Nittis harassed her
because plaintiff complained that Greenfield ran her husband’s
business in the back of the office. (Petrisch Dep. – 2/24/11 at
Plaintiff averred that that branch employees,
including Greenfield, Ali, and Nittis, put her through a “living
hell” because of her complaints of the Rego Park Branch’s
purportedly fraudulent banking activity. (Petrisch Dep. –
11/23/10 at 79:19-25.)
Plaintiff’s Transfer to 108th Street Branch
In January 2007, after numerous requests by plaintiff,
HSBC granted plaintiff a transfer from the Rego Park Branch to
the 108th Street Branch, where she reported to Mario Verardo.
(Defs.’ Rule 56.1 Statement ¶ 10; Pl.’s Rule 56.1 Resp. ¶ 10;
Kourkoutis Cert. ¶ 4; Petrisch Dep. - 11/23/2011 at 81:15-24.)
On March 26, 2007, plaintiff officially transferred to the 108th
When asked how she knew that Greenfield, Ali, and Nittis made
fun of how she talked, plaintiff responded that “[t]he tellers used to tell
[her]” and did not testify that she directly heard any of the comments
regarding her language. (See Petrisch Dep. – 1/8/2010 at 71:2-20.) The court
thus disregards plaintiff’s testimony regarding Greenfield, Ali, and Nittis’
purported derogatory remarks about how plaintiff spoke because such testimony
is not based on her personal knowledge and is inadmissible hearsay. See
DiStiso, 691 F.3d at 230; Pamphile v. Tishman Speyers Prop., L.P., No. 03-CV5964, 2006 WL 1806505, at *5 n.2 (E.D.N.Y. June 29, 2006) (“Hearsay evidence
is inadmissible on a motion for summary judgment.” (citing Raskin v. Wyatt
Co., 125 F.3d 55, 66 (2d Cir. 1997))). By contrast, the record sufficiently
establishes that plaintiff had personal knowledge that Greenfield, Ali, and
Nittis stated directly to plaintiff that they hated her, stated that they did
not have to listen to her, and wrote a big zero next to her name because she
witnessed those events firsthand. (Petrisch Dep. – 1/8/2010 at 71:21-72:20,
Street Branch, where she remained an assistant sales manager.
(Defs.’ Rule 56.1 Statement ¶ 10; Pl.’s Rule 56.1 Resp. ¶ 10.)
Although plaintiff initially testified that she had “no
problems” at the 108th Street Branch, (Petrisch Dep. – 2/24/2011
219:24-220:6), plaintiff later claimed that she encountered
problems at the 108th Street Branch when “defendant Katz showed
up at said location to harass her after the transfer,” 9 (Pl.’s
Rule 56.1 Resp. ¶ 11).
Plaintiff concedes that she did not
resign from her employment with HSBC on May 5, 2006 nor at any
other time. (Defs.’ Rule 56.1 Statement ¶ 17; Pl.’s Rule 56.1
Resp. ¶ 17; Malanga Cert. ¶ 4.)
Katz and Kourkoutis’ HSBC Ownership Interest and
The record establishes the following relevant facts
regarding the ownership interests and supervisory authority of
individual defendants Kourkoutis and Katz.
Other than owning a modest amount of HSBC stock,
Kourkoutis and Katz do not have an ownership interest in HSBC.
(Defs.’ Rule 56.1 Statement ¶ 18; Kourkoutis Cert. ¶ 5; ECF No.
61, Certification of Marlen Katz (“Katz Cert.”) ¶ 2.)
plaintiff’s employment at the Rego Park Branch, Katz had no
supervisory control or authority over plaintiff, and his
position — Premier Manager — was below plaintiff’s assistant
Plaintiff’s Rule 56.1 Response and Certification did not
describe the nature of Katz’s alleged harassment.
sales manager position. (Defs.’ Rule 56.1 Statement ¶ 19; Pl.’s
Rule 56.1 Resp. ¶ 19; Katz Dep. at 8:17-24.)
Further, Katz had
no authority to hire, fire, or determine the pay rate of any
Rego Park Branch employees. (Defs.’ Rule 56.1 Statement ¶¶ 2021; Katz Cert. ¶¶ 3-4.)
Katz did not maintain personnel files
for Rego Park Branch employees. (Defs.’ Rule 56.1 Statement
Although Kourkoutis supervised work schedules of Rego
Park Branch employees during plaintiff’s tenure at HSBC, (Defs.’
Rule 56.1 Statement ¶ 23; Pl.’s Rule 56.1 Resp. ¶ 23; Kourkoutis
Cert. ¶ 9), he did not have the authority to hire or fire
employees of the Rego Park Branch without the review and
approval of HSBC’s Human Resources Department. (Kourkoutis Cert.
Moreover, Kourkoutis had no authority to determine the
pay rate or method of Rego Park Branch employees because Human
Resources made those determinations. (Id. ¶ 7.)
Kourkoutis did not maintain personnel files for Rego Park Branch
employees. (Id. ¶ 8.)
Relevant Procedural History
On or about September 6, 2006, plaintiff filed a
verified complaint with the New York State Division of Human
Rights (“State Division”), which was dual filed with the United
States Equal Employment Opportunity Commission (“EEOC”),
alleging discrimination and retaliation on the basis of age,
sex, and national origin. (Defs.’ Rule 56.1 Statement ¶ 9; Pl.’s
Rule 56.1 Resp. ¶ 9; ECF No. 58, Exh. 10, Administrative
Complaint Before State Division and EEOC.)
On March 23, 2007, the State Division dismissed
plaintiff’s complaint on grounds of administrative convenience
because plaintiff intended to pursue federal remedies in court.
(Defs.’ Rule 56.1 Statement ¶ 12; Pl.’s Rule 56.1 Resp. ¶ 12;
ECF No. 58, Exh. 11, State Division Determination and Order of
On May 8, 2007, the EEOC closed its file on
plaintiff’s discrimination charge, adopted the findings of the
State Division, and issued plaintiff a right to sue letter.
(Defs.’ Rule 56.1 Statement ¶ 13; Pl.’s Rule 56.1 Resp. ¶ 13;
ECF No. 58, Exh. 12, EEOC Dismissal and Notice of Rights.)
After receiving her right to sue letter, plaintiff filed her
Complaint in the instant action on August 9, 2007, alleging age,
national origin, and sex discrimination. (See generally Compl.)
On January 20, 2012, defendants filed their motion for summary
judgment, and plaintiff filed her Opposition on March 6, 2012.
(See Defs.’ Mot.; ECF No. 45, Plaintiff’s Memorandum of Law in
Opposition to Defs.’ Mot. (“Pl.’s Opp.”).)
Summary Judgment Standard
“Summary judgment is appropriate where there is no
genuine issue as to any material fact and . . . the record taken
as a whole could not lead a rational trier of fact to find for
the non-moving party.” Rodal v. Anesthesia Grp. of Onondaga,
P.C., 369 F.3d 113, 118 (2d Cir. 2004) (internal quotation marks
“In ruling on a summary judgment motion, the district
court must resolve all ambiguities, and credit all factual
inferences that could rationally be drawn, in favor of the party
opposing summary judgment and determine whether there is a
genuine dispute as to a material fact, raising an issue for
trial.” McCarthy v. Dun & Bradstreet Corp., 482 F.3d 184, 202
(2d Cir. 2007) (internal quotation marks omitted).
“A fact is
material when it might affect the outcome of the suit under
governing law.” Id. (internal quotation marks omitted).
Moreover, an issue of fact is genuine only if “the evidence is
such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
“In order to defeat a motion for summary judgment
supported by proof of facts that would entitle the movant to
judgment as a matter of law, the nonmoving party is required
under Rule 56 to set forth specific facts showing that there
is a genuine issue of material fact to be tried.” Ying Jing Gan
v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993).
nonmoving party may not, however, “rely simply on conclusory
statements or on contentions that the affidavits supporting the
motion are not credible, or upon the mere allegations or denials
of the nonmoving party’s pleading.” Id. at 532–33 (internal
quotation marks and citations omitted); see also Woods v.
Ruffino, 8 F. App'x 41, 42 (2d Cir. 2001) (“Reliance upon
conclusory statements or mere allegations is not sufficient to
defeat summary judgment.”).
The court is mindful that “[e]mployment discrimination
cases raise special issues on summary judgment.” Kenney v.
N.Y.C. Dep't of Educ., No. 06-CV-5770, 2007 WL 3084876, at *3
(S.D.N.Y. Oct. 22, 2007).
discrimination cases that involve a dispute concerning the
“employer's intent and motivation,” may not be suitable for
summary judgment. Id.; see Holcomb v. Iona Coll., 521 F.3d 130,
137 (2d Cir. 2008).
The Second Circuit, however, has long ago
“remind[ed] district courts that the impression that summary
judgment is unavailable to defendants in discrimination cases is
unsupportable.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d
Cir. 2000) (internal quotation marks omitted); see also Holcomb,
521 F.3d at 137 (“Even in the discrimination context, however, a
plaintiff must provide more than conclusory allegations to
resist a motion for summary judgment.”).
The moving party, here
defendants, “may obtain summary judgment by showing that little
or no evidence may be found in support of the nonmoving party's
case.” Gallo v. Prudential Residential Servs., Ltd. P'ship, 22
F.3d 1219, 1223–24 (2d Cir. 1994); James v. Enter. Ass’n of
Steamfitters Local 638, No. 06-CV-680, 2010 WL 3394668, at *2
(E.D.N.Y. Aug. 23, 2010) (“[T]he Court of Appeals in Gallo
nevertheless recognizes that, under Celotex, a defendant is
entitled to summary judgment by showing that little or no
evidence may be found in support of the nonmoving party’s case.”
(internal quotation marks omitted)).
In support of her Opposition to defendants’ motion for
summary judgment, plaintiff attached a signed Certification, in
which she asserts several additional factual allegations to
bolster her claims. (See ECF No. 49, Certification of Anna
Petrisch (“Pl.’s Cert.”).)
Specifically, for the first time in her Certification,
plaintiff alleges that Kourkoutis “told [her] that the clientele
at the Rego Park branch was predominately white and that they
were more sophisticated and cultured than the clientele [she]
was accustomed to” at her previous job in Brooklyn. (Pl.’s Cert.
Plaintiff avers that she was disturbed by such comments
because they were racially and ethnically disparaging. (Id.)
Plaintiff then broadly asserts that “[t]hroughout the course of
[her] employment with HSBC,” Kourkoutis “made other racially and
ethnically disturbing comments.” (Id.)
Second, plaintiff also newly asserts that Kourkoutis
denigrated plaintiff’s Hispanic origin when he told her in
September 2005 that she should be “more upbeat around customers
. . . because they were from a better environment and better
culture than the Hispanic and African American clients [she]
previously worked around.” (Id. ¶ 6.)
According to plaintiff,
Kourkoutis “frequently spoke” about the superiority and
sophistication of Rego Park’s “demographics” and “constantly
made such disparaging comments about minorities.” (Id. ¶ 8.)
Third, plaintiff claims that Kourkoutis ridiculed her
on a frequent basis because of her accent and expressed his
inability to understand her because she talked too fast due to
her accent. (Id. ¶ 7.)
In addition, Kourkoutis and Katz
allegedly “encouraged co-workers and subordinate employees to
harass [her]” thereby subjecting plaintiff to her co-workers’
“verbal taunts and insults relating to [her] Spanish accent” and
her age. (Id. ¶ 10.)
Fourth, plaintiff asserts that “[e]very day [she] was
made fun of because of [her] accent” and that Kourkoutis and
Katz “continued to be openly hostile towards [her], many times
ridiculing [plaintiff] in front of [her] staff.” (Id. ¶ 13.)
In response to plaintiff’s Certification, defendants
contend that the court should disregard the abovementioned
allegations in plaintiff’s Certification because they contradict
her deposition testimony and mischaracterize evidence in the
record. (ECF No. 63, Defendants’ Reply Memorandum in Support of
Summary Judgment (“Defs.’ Reply”) at 2-3.)
“It is well settled
in this circuit that a party’s affidavit which contradicts [her]
own prior deposition testimony should be disregarded on a motion
for summary judgment.” Buttry v. Gen. Signal Corp., 68 F.3d
1488, 1493 (2d Cir. 1995) (internal quotation marks omitted);
Ciullo v. Yellow Book, USA, Inc., No. 10-CV-4484, 2012 WL
2676080, at *1 n.1 (E.D.N.Y. July 6, 2012) (“It is of course
axiomatic that a party cannot defeat summary judgment by
submitting an affidavit that contradicts prior sworn deposition
testimony.” (internal quotation marks omitted)).
Second Circuit has held that “[i]f a party who has been examined
at length . . . could raise an issue of fact simply by
submitting an affidavit contradicting his own prior testimony,
this would greatly diminish the utility of summary judgment as a
procedure for screening out sham issues of fact.” Perma Research
& Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969);
Ciliberti v. Int’l Bhd. of Elec. Workers Local 3, No. 08-CV4262, 2012 WL 2861003, at *11 (E.D.N.Y. July 10, 2012).
Upon careful review of the record, the court finds
that the new allegations in plaintiff’s Certification do not
directly contradict her prior deposition testimony.
acknowledges that, during her multiple depositions, plaintiff
did not raise many of the allegations subsequently included in
her Certification, despite her opportunity to do so in response
to opposing counsel’s comprehensive and detailed questioning.
Nonetheless, the newly added allegations do not actually
conflict, and are not mutually exclusive, with her earlier
Rather, the Certification sets forth new,
albeit conclusory, facts regarding Kourkoutis, Katz, and
For example, plaintiff’s new allegations regarding
Kourkoutis’ “other racially and ethnically disparaging
comments,” his “frequent ridicule . . . of [her] accent,”
and his statements about the superiority and sophistication of
Rego Park’s clientele do not necessarily contradict her
deposition testimony that Kourkoutis failed to protect her from
her co-workers’ abuse; sent her to New Jersey to take licensing
classes; screamed at her to concentrate on numbers on a bulletin
board; and took away her officer-in-charge privileges. (Compare
Pl.’s Cert. ¶¶ 5,7, with Petrisch Dep. – 1/8/10 at 92:4-94:1,
94:3-96:3, 96:7-97:17, 97:24-98:19, 110:17-19.)
Despite the lack of any direct contradiction between
the additional allegations in plaintiff’s Certification and her
prior deposition testimony, the court nevertheless finds that
plaintiff’s new factual allegations are insufficient to preclude
summary judgment because they are generalized, conclusory, and
speculative and seek to add assertions that are absent from
plaintiff’s Complaint and extensive deposition testimony.
Indeed, it is well established that “a self-serving affidavit
that merely reiterates conclusory allegations in affidavit form
is insufficient to preclude summary judgment.” United Magazine
Co. v. Murdoch Magazines Distribution, Inc., 393 F. Supp. 2d
199, 211 (S.D.N.Y. 2005), aff'd sub nom. United Magazine Co. v.
Curtis Circulation Co., 279 F. App'x 14 (2d Cir. 2008); see also
Holcomb, 521 F.3d at 137 (“Even in the discrimination context,
however, a plaintiff must provide more than conclusory
allegations to resist a motion for summary judgment.”); D’Amico
v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998) (“The nonmoving party may not rely on mere conclusory allegations nor
speculation, but instead must offer some hard evidence showing
that its version of the events is not wholly fanciful.”).
Indeed, the Second Circuit has noted that “factual issues
created solely by an affidavit crafted to oppose a summary
judgment motion are not ‘genuine’ issues for trial.”
N.Y.C. Dep’t of Corr., 84 F.3d 614, 619 (2d Cir. 1996) (citing
Perma Research & Dev. Co., 410 F.2d at 578).
Moreover, a party
cannot “amend [her] complaint simply by alleging new facts and
theories in [her] memorand[um] opposing summary judgment.”
Heletsi v. Lufthansa German Airlines, Inc., No. 99-CV-4739, 2001
WL 1646518, at *1 n.1 (E.D.N.Y. Dec. 18, 2001).
Here, plaintiff’s Certification is riddled with selfserving allegations that were conspicuously absent from
plaintiff’s Complaint and her deposition testimony.
these self-serving allegations are abstract and conclusory at
In fact, plaintiff’s Certification does not specify the
nature or time frame of Kourkoutis’ racially and ethnically
disturbing comments, his purported ridicule of her accent, and
his statements about the superiority of Rego Park clientele. 10
Nor does plaintiff articulate how Kourkoutis and Katz expressed
“hostil[ity] towards [plaintiff]” by “ridiculing [her] in front
of [her] staff.” (Pl.’s Cert. ¶ 13.)
Moreover, among the scant
evidence in the record cited by plaintiff in support of her
belated allegations is the 2005 Performance Review, in which
Kourkoutis assessed plaintiff’s strengths and weaknesses. (Id.
The court recognizes that a plaintiff may surmount summary
judgment “even in the absence of specific details about each incident” if a
jury credited plaintiff’s “general allegations of constant abuse, which were
confirmed by her coworkers.” Torres v. Pisano, 116 F.3d 625, 631 (2d Cir.
1997). In Torres, the Second Circuit concluded that the generality of the
plaintiff’s allegations regarding defendant’s harassment was not fatal to her
claim at summary judgment. Id. Torres, however, is inapposite and does not
require this court to consider plaintiff’s bald assertions and conclusory
allegations. First, the plaintiff in Torres was able to point and quote to
repeated statements that corroborated her general allegations of sexual
harassment. Id. By contrast, plaintiff here merely asserts conclusory
allegations, supported only by her feelings or belief of discrimination,
without pointing to any corroborating evidence in the record. Second, unlike
in Torres, none of plaintiff’s allegations are confirmed by her coworkers or
any other witness or document. See Ramos v. Marriott Int’l, Inc., 134 F.
Supp. 2d 328, 349 (S.D.N.Y. 2001) (distinguishing Torres on the ground that
“none of [the] plaintiff’s allegations are confirmed by her coworkers”).
Finally, Torres does not excuse plaintiff’s obligation to adduce nonconclusory allegations or evidence to raise a genuine issue of material fact.
As such, Torres does not salvage plaintiff’s nebulous assertions raised for
the first time in her Opposition and Certification.
Significantly, the allegations in plaintiff’s
Certification regarding plaintiff’s interpretation of
Kourkoutis’ statements about the sophistication and culture of
plaintiff’s prior clientele mischaracterize Kourkoutis’ comments
in plaintiff’s 2005 Performance Review.
As established by the
record, Kourkoutis wrote in the 2005 Performance Review that
“the demographic area . . . in Rego Park and client investment
sophistication is different and higher than in Brooklyn.” (2005
Performance Review at 4.)
Contrary to plaintiff’s conclusory
allegations in her Certification, Kourkoutis did not state that
the demographic was predominately white, did not state that
plaintiff’s former clientele was less cultured, and only opined
on the client investment sophistication in the 2005 Performance
Review. (See id.)
In another mischaracterization of the 2005 Performance
Review, plaintiff claims that Kourkoutis told her that she
talked too fast due to her “accent.” (Pl.’s Cert. ¶ 7.)
2005 Performance Review, however, Kourkoutis reported that
plaintiff occasionally “speaks so quickly” that he must “ask her
to repeat herself.” (2005 Performance Review at 6.)
the 2005 Performance Review did Kourkoutis state that she spoke
too fast because of her accent. (See generally id.) Nor does the
record evidence provide support for plaintiff’s position that
this comment was motivated by discriminatory animus against
plaintiff’s national origin.
In fact, Kourkoutis testified that
he recognized that her ability to speak Spanish was of benefit
to the Rego Park Branch, which provides probative evidence that
Kourkoutis harbored no ill-will towards her language or accent.
(Kourkoutis Dep. at 11:17-12:25.)
Finally, as accurately noted by defendants,
plaintiff’s Certification is nothing more than a last-ditch
effort to salvage her claims and belatedly pile on new
allegations of which defendants had no notice until plaintiff’s
Opposition. (See Defs.’ Reply at 2.)
A certification or
affidavit opposing a summary judgment motion is not a vehicle
for plaintiff to reshape the theory and underlying facts of her
discrimination claims as originally pled in her Complaint. See
Heletsi, 2001 WL 1646518, at *1 n.1.
Accepting the foregoing
speculative and nebulous allegations included for the first time
in plaintiff’s Certification would be manifestly unjust to
defendants, who have already spent a considerable amount of
time, money, and effort to defend against the claims alleged in
the Complaint and subsequently developed in plaintiff’s multiple
Permitting plaintiff to add speculative and
conclusory allegations to bolster her claims after defendants
have moved for summary judgment without permitting defendants to
conduct discovery on those new allegations would make
plaintiff’s case a moving target and would all but eviscerate
defendants’ opportunity to obtain summary judgment.
disadvantage to defendants is particularly pronounced in this
case because plaintiff had the opportunity to testify about the
new allegations during her depositions, which spanned multiple
days and involved detailed questioning eliciting the type of
testimony that plaintiff now raises for the first time in her
Defendants were thereby denied the opportunity
to ask follow-up questions and obtain more specific information.
The court consequently finds that the new facts alleged in
plaintiff’s Certification, although not directly contradicted by
her excerpted deposition testimony, amount to belated conclusory
and speculative assertions that fail to create a genuine issue
of material fact.
Accordingly, the court need not discuss the
aforementioned newly raised allegations in the analysis of
plaintiff’s claims below. 11
III. Hostile Work Environment Claims
Plaintiff asserts hostile work environment claims
pursuant to Title VII, the NYSHRL, and the NYCHRL, alleging
employment discrimination based on her national origin, age, and
As explained below, plaintiff has failed to raise a
genuine issue of material fact with regard to her hostile work
Even if the court improperly considered plaintiff’s belated
attempt to add new allegations not previously included in her Complaint or
deposition testimony, summary judgment would be warranted because, as
previously stated, advancing such conclusory, abstract allegations does not
discharge plaintiff’s burden to raise a genuine issue of material fact for
environment claims under Title VII and the NYSHRL and has
abandoned her hostile work environment claim under the NYCHRL.
Title VII and the NYSHRL
Hostile work environment claims brought under Title
VII and the NYSHRL are governed by the same analytical
standards. See Smith v. Town of Hempstead Dep’t of Sanitation
Sanitary Dist. No. 2, 798 F. Supp. 2d 443, 451-52 (E.D.N.Y.
2011) (citing Schiano v. Quality Payroll Sys., Inc., 445 F.3d
597, 609 (2d Cir. 2006)).
To establish a hostile work
environment claim, “a plaintiff must produce enough evidence to
show that ‘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.’” Rivera v. Rochester
Genesee Reg’l Transp. Auth., 702 F.3d 685, 693 (2d Cir. 2012)
(quoting Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 102
(2d Cir. 2010)); Cruz v. Coach Stores, Inc., 202 F.3d 560, 570
(2d Cir. 2000) (quoting Harris v. Forklift Sys., Inc., 510 U.S.
17, 21 (1993)).
As such, plaintiff must establish that the
allegedly discriminatory conduct was (1) “because of”
plaintiff’s age, sex, or national origin and (2) sufficiently
severe or pervasive thereby altering her work conditions. 12 See
Alfano v. Costello, 294 F.3d 365, 373-77 (2d Cir. 2002).
1. “Because Of” Plaintiff’s Protected Characteristic
First, plaintiff must demonstrate that the conduct
giving rise to the alleged hostile work environment occurred
“because of [her] membership in a protected class.” Ventimiglia
v. Hustedt Chevrolet, No. 05-CV-4149, 2009 WL 803477, at *6
(E.D.N.Y. Mar. 25, 2009).
Indeed, “‘[i]t is axiomatic that
mistreatment at work, whether through subjection to a hostile
environment or through [other means], is actionable under Title
VII only when it occurs because of an employee’s . . . protected
characteristic,’ such as race or national origin.” Rivera, 702
F.3d at 694 (alterations in original) (quoting Brown v.
Henderson, 257 F.3d 246, 252 (2d Cir. 2001)); Montgomery v.
Chertoff, No. 03-CV-5387, 2007 WL 1233551, at *14 (E.D.N.Y. Apr.
25, 2007) (“The Second Circuit has stated that only conduct
prompted by plaintiff’s membership in a protected class
‘contributes to a hostile work environment claim.’” (quoting
Bush v. Fordham Univ., 452 F. Supp. 2d 394, 413 (S.D.N.Y.
2006)). “‘[A]n environment which is equally harsh for both men
The court acknowledges that plaintiff must also satisfy a third
element: “to succeed on a Title VII or New York State Human Rights Law
hostile work environment claim against an employer, the plaintiff must show
that ‘a specific basis exists for imputing the conduct that created the
hostile environment to the employer.’” Smith, 798 F. Supp. 2d at 452 (quoting
Petrosino v. Bell Atl., 385 F.3d 210, 221 (2d Cir. 2004)). The court,
however, need not reach this element, as plaintiff has failed to establish
that she was subjected to severe or pervasive harassment because of her age,
national origin, or sex.
and women or for both young and old does not constitute a
hostile working environment under the civil rights statutes.’”
Ventimiglia, 2009 WL 803477, at *6 (quoting Brennan v. Metro.
Opera Ass’n, 192 F.3d 310, 318 (2d Cir. 1999)).
Accordingly, it is “important in hostile work
environment cases to exclude from consideration personnel
decisions that lack a linkage or connection to the claimed
ground of discrimination.” Alfano, 294 F.3d at 377.
otherwise would render the federal court system “a court of
personnel appeals.” Id.; see also Byrnie v. Town of Cromwell,
Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) (“‘[The court's]
role is to prevent unlawful hiring practices, not to act as a
super personnel department that second guesses employers'
business judgments.’” (quoting Simms v. Okla. ex rel. Dep’t of
Mental Health & Substance Abuse Servs., 165 F.3d 1321, 1330
(10th Cir. 1999)); Cid v. ASA Inst. of Bus. & Computer Tech.,
Inc., No. 12-CV-2947, 2013 WL 1193056, at *6 (E.D.N.Y. Mar. 22,
2013) (“Title VII . . . does not set forth a general civility
code for the American workplace.” (internal quotation marks
omitted)); Davis-Bell v. Columbia Univ., 851 F. Supp. 2d 650,
671 (S.D.N.Y. 2012) (“[T]he NYCHRL, like Title VII and the
NYSHRL, is not a general civility code.” (internal quotation
In support of her hostile work environment claims,
plaintiff advances the following allegations that appear
facially neutral as to plaintiff’s age, sex, and national
Kourkoutis screamed at plaintiff to “concentrate,”
(Petrisch Dep. – 2/24/11 at 138:24-139:24);
Kourkoutis failed to prevent plaintiff’s co-workers
from making fun of her, (Petrisch Dep. – 1/8/10 at
Kourkoutis took away her privileges as officer-incharge of the Rego Park Branch, (id. at 97:24-98:19);
Kourkoutis required her to take classes in New Jersey
rather than New York, (id. at 92:4-94:1);
Kourkoutis suggested that plaintiff take more time off
after her disability leave, (id. at 94:3-96:3);
Greenfield, Ali, and Nittis made fun of plaintiff’s
way of dressing and walking, (id. at 86:5-8); 13
Greenfield, Ali, and Nittis wrote a “big zero” next to
her name, (id. at 71:18-20, 86:5-87:13);
Greenfield, Ali, and Nittis told plaintiff that they
hated her, (id. at 72:17-19);
As noted supra at footnote 8, the court disregards plaintiff’s
testimony regarding Greenfield, Ali, and Nittis’ purported derogatory remarks
about how plaintiff spoke because such testimony is not based on personal
knowledge and is inadmissible hearsay.
Greenfield, Ali, and Nittis harassed her because
plaintiff complained that Greenfield ran her husband’s
business in the back office, (Petrisch Dep. – 2/24/11
at 151:18-153:21); and
Kourkoutis, Katz, and Dray did not invite plaintiff to
certain “pow wow” meetings, (Petrisch Dep. – 1/8/10 at
Apart from plaintiff’s unsupported and conclusory
assertions to the contrary, the foregoing allegations are
neutral as to plaintiff’s age, sex, and national origin.
Plaintiff has pointed to no record evidence supporting the
inference that the abovementioned incidents of alleged
mistreatment occurred “because of” any of her protected
Instead, plaintiff merely alleges her belief
that those actions were based on her age, sex, and/or national
Nonetheless, it is well established that plaintiff’s
“‘feelings and perceptions of being discriminated against are
not evidence of discrimination.’” Lee v. Sony BMG Music Entm’t,
Inc., No. 07-CV-6733, 2010 WL 743948, at *9 (S.D.N.Y. Mar. 3,
2010) (quoting Bickerstaff v. Vassar Coll., 196 F.3d 435, 456
(2d Cir. 1999)); Paolercio v. Allstate Ins. Co., No. 09-CV-983,
2011 WL 4628748, at *6 (E.D.N.Y. Sept. 30, 2011) (“Although
supported by [plaintiff’s] testimony, these feelings of
discrimination do not amount to evidence that the court can
By itself, the facial neutrality of plaintiff’s
aforementioned allegations does not automatically preclude their
consideration by the court when determining the viability of
plaintiff’s hostile work environment claims.
“[f]acially neutral incidents may be included . . . among the
‘totality of circumstances’ that courts consider in any hostile
work environment claim,” provided that plaintiff offers “some
circumstantial or other basis for inferring that incidents . . .
neutral on their face were in fact discriminatory.” Alfano, 294
F.3d at 378; see also Woods v. Newburg Enlarged City Sch. Dist.,
288 F. App’x 757, 759 (2d Cir. 2008) (“Alfano’s observation that
incidents that are facially sex-neutral may sometimes be used to
establish a course of sex-based discrimination presumed evidence
of multiple acts of harassment, some overtly sexual and some
not.” (internal quotation marks omitted)); Khan v. HIP
Centralized Lab. Servs., Inc., No. 03-CV-2411, 2007 WL 1011325,
at *5 (E.D.N.Y. Mar. 30, 2007) (“Because [plaintiff] is relying
on facially neutral incidents, he must offer some additional
evidence from which a reasonable jury could infer that these
acts were, in fact, discriminatory.”).
In Alfano, the Second
Circuit ultimately determined that there was no evidence in the
record indicating that the defendant’s comments and actions,
many of which were sex-neutral on their face, were motivated by
the plaintiff’s sex. 294 F.3d at 378.
The Alfano court further
clarified that four sex-related incidents, none of which were
perpetrated by the defendant, did not justify any inference that
the facially sex-neutral incidents involving the defendant were
“because of” plaintiff’s sex. Id.
Alfano proves instructive in the instant case.
the plaintiff in Alfano, plaintiff here offers a laundry list of
facially neutral allegations in an attempt to establish that the
hostility of her work environment at the Rego Park Branch was
because of her age, sex, and/or national origin.
however, has failed to present any evidentiary basis to infer
that the incidents alleged were based on her age, sex, or
national origin or otherwise animated by discriminatory intent.
Even viewing the evidence in the light most favorable to the
plaintiff, the record evidence and deposition testimony provide
no support for an inference that the facially neutral conduct of
Kourkoutis, Katz, and plaintiff’s three female co-workers
described above was motivated by plaintiff’s age, sex, or
To the contrary, plaintiff’s own evidence indicates
that defendant Kourkoutis made efforts to ensure a workable
environment for all employees at the Rego Park Branch;
specifically, Kourkoutis sent an e-mail warning his staff that
he “certainly [did] not expect anyone to be [disrespectful] to
any colleagues.” (Kourkoutis E-mails at 6.)
respect to the alleged misconduct of her three female coworkers, plaintiff acknowledged that they harassed her primarily
because plaintiff complained about Greenfield running her
husband’s business at work, a feature wholly unrelated to any of
plaintiff’s protected characteristics. (Petrisch Dep. – 2/24/11
Additionally, plaintiff conceded that,
although Kourkoutis, Katz, and Dray did not invite her to
certain “pow wow” meetings, they invited at least one other
woman, Nittis, to a “pow wow” meeting. (Petrisch Dep. – 1/8/10
As such, the record lacks sufficient
circumstantial or direct evidence to give rise to an inference
that the facially neutral misconduct of Kourkoutis, Katz,
Greenfield, Nittis, and Ali was in fact discriminatory.
worst, plaintiff’s allegations describe nothing more than “the
ordinary tribulations of the workplace, such as the sporadic use
of abusive language,” and merely indicate a poor working
relationship between plaintiff, her supervisor, and her coworkers. See Faragher v. City of Boca Raton, 524 U.S. 775, 788
Upon review of the record, the court finds that the
only non-conclusory allegations of harassment that occurred
“because of” one of plaintiff’s protected characteristics were
Katz’s three age-based remarks that plaintiff was “too old,”
which the court accepts as true for purposes of this motion. 14
(Petrisch Dep. – 1/8/10 at 127:2-129:20.)
Yet, as in Alfano,
where four sex-related incidents failed to create an inference
of discriminatory animus as to several sex-neutral allegations,
Katz’s three age-based statements in this case are insufficient
to justify any inference that the facially neutral conduct and
comments of Kourkoutis, Katz, and plaintiff’s three female coworkers were “because of” her age, sex, or national origin.
Critically, plaintiff conceded that Katz was the only person to
make comments to her about her age. (Petrisch Dep. – 1/8/10 at
Because “only conduct prompted by plaintiff’s
membership in a protected class contributes to a hostile work
environment claim,” Montgomery, 2007 WL 1233551, at *14
(internal quotation marks omitted), the court limits the
remainder of its analysis of plaintiff’s hostile work
environment claims – i.e., whether the harassment was severe or
pervasive – to the conduct and comments motivated “because of”
plaintiff’s protected characteristics: namely, Katz’s three
statements based on plaintiff’s age.
As previously noted, plaintiff has not asserted a federal agediscrimination claim under the ADEA in this action. As such, Katz’s three
age-based remarks are evaluated under the NYSHRL only in the following
section because age is not a protected characteristic/class under Title VII.
See 42 U.S.C. § 2000e-2.
2. “Severe or Pervasive” Harassment
A plaintiff must demonstrate that the alleged
harassment is sufficiently “severe or pervasive” such that it
alters the conditions of the plaintiff’s employment and creates
an abusive working environment. See Ventimiglia, 2009 WL 803477,
“This test has objective and subjective elements: the
misconduct shown must be ‘severe or pervasive enough to create
an objectively hostile or abusive work environment,’ and the
victim must also subjectively perceive that environment to be
abusive.” Alfano, 294 F.3d at 374 (quoting Harris, 510 U.S. at
Plaintiff must therefore “demonstrate either that a single
incident was extraordinarily severe, or that a series of
incidents were ‘sufficiently continuous and concerted’” to have
altered the conditions of her working environment. Id. (quoting
Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000)).
In determining whether a plaintiff has satisfied this
burden, “courts examine the case-specific circumstances in their
totality and evaluate the severity, frequency, and degree of the
abuse.” Id. (citing Harris, 510 U.S. at 23).
include: “‘the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating,
or a mere offensive utterance; and whether it unreasonably
interferes with an employee’s work performance.’” Id. (quoting
Harris, 510 U.S. at 23).
“Isolated acts, unless very serious,
do not meet the threshold of severity or pervasiveness.” Id.
(citing Brennan, 192 F.3d at 318); Williams v. Cnty. of
Westchester, 171 F.3d 98, 100 (2d Cir. 1999) (holding that “to
meet [her] burden, the plaintiff must show more than a few
isolated incidents” (internal quotation marks omitted)).
Here, Katz’s three statements that plaintiff was “too
old” constitute the only alleged harassment that occurred
“because of” plaintiff’s protected characteristic of age.
(Petrisch Dep. – 1/8/10 at 127:2-129:20.)
statements do not sufficiently demonstrate that the harassment
purportedly suffered by plaintiff was sufficiently severe or
pervasive such that the conditions of plaintiff’s employment
As established by the record, Katz’s three
statements were not frequent, continuous, particularly severe,
or physically threatening, and there is no evidence that his
three age-based remarks unreasonably interfered with plaintiff’s
work performance, altered the conditions of plaintiff’s
employment or created an abusive working environment. See
Rivera, 702 F.3d at 693.
Although Katz’s age-based derogations
may have been offensive to plaintiff, the totality of the
circumstances indicates that no rational fact-finder could find
that a hostile work environment existed based on Katz’s three
sporadic insults. See, e.g., Shih v. City of New York, No. 03CV-8279, 2006 WL 2789986, at *1, 6 (S.D.N.Y. Sept. 28, 2006)
(“The harassment alleged by Plaintiff is based on the three agerelated remarks made by Saini . . . .
The infrequency of the
alleged acts undermines Plaintiff’s claim.”); Mark v. Brookdale
Univ. Hosp., No. 04-CV-2497, 2005 WL 1521185, at *27 (E.D.N.Y.
June 22, 2005) (finding two “alleged isolated remarks” by
plaintiff’s supervisor insufficient to establish hostile work
environment claim); Pagan v. N.Y. State Div. of Parole, No. 98CV-5840, 2003 WL 22723013, at *6 (S.D.N.Y. Nov. 18, 2003)
(finding that two racially derogatory remarks by supervisor to
plaintiff did “not amount to the sort of extremely serious
behavior required to give rise to a hostile work environment
under Title VII” (internal quotation marks omitted)).
Katz’s statements that plaintiff was “too old,” although
potentially motivated by age-based animus, constitute isolated
instances of harassment that do not give rise to severe or
pervasive harassment. Alfano, 294 F.3d at 374.
Notably, even if the court also considered the
facially neutral allegations as to plaintiff’s age, sex, and
national origin and the newly raised allegations in plaintiff’s
Certification, plaintiff would still be unlikely to succeed on
her hostile work environment claims.
Taken together, the
discriminatory conduct alleged by plaintiff was not physically
threatening, was not particularly severe, and did not alter the
conditions of plaintiff’s employment, create an abusive working
environment, or unreasonably interfere with plaintiff’s work
In Davis-Molinia v. Port Auth. of N.Y. & N.J., No.
08-CV-7584, 2011 WL 4000997, at *11 (S.D.N.Y. Aug. 18, 2011),
the district court held that the plaintiff’s numerous
allegations — that supervisors excluded her from meetings,
questioned her hours, yelled and talked down to her, diminished
her responsibilities, excluded her from lunch gatherings, and
did not intervene when co-workers refused to give her needed
documents and that one employee made a racist remark – were
insufficient to demonstrate a severe or pervasive hostile work
Rather, the Davis-Molinia court noted that the
“gravamen of [plaintiff’s] claims is rooted in conduct that
amounts to nothing more than workplace dynamics – that is,
personal enmity or personality conflicts.” Id.
As in Davis-Molinia, plaintiff here alleges conduct
that amounts to nothing more than workplace dynamics.
Plaintiff’s grievances arise not out of the sustained
discriminatory actions of her co-workers but rather from the
personal enmity of her colleagues.
Thus, even assuming the
court considered plaintiff’s facially neutral allegations
regarding defendants’ actions and the conclusory allegations
newly raised in her Certification, the court finds that
plaintiff’s allegations are nevertheless insufficient to
establish severe or pervasive conduct giving rise to an
actionable hostile work environment claim. See Benn v. City of
New York, No. 07-CV-326, 2011 WL 839495, at *9-10 (noting that
“the alleged incidents — laughing at and correcting Plaintiff’s
accent, questioning Plaintiff about his education, commenting
vaguely about his age, and talking to him in an allegedly
condescending manner” were insufficient to establish a severe or
pervasive work environment); Costello v. N.Y. State Nurses
Ass’n, 783 F. Supp. 2d 656, 680 (S.D.N.Y. 2011) (holding that
allegations that supervisors smirked and laughed at plaintiff
and her pronunciation of words, criticized her manner of speech,
ridiculed her speech, ignored her in meetings, and micromanaged
her work were insufficiently severe or pervasive to establish a
Title VII or NYSHRL hostile work environment claim).
plaintiff’s allegations constitute “repeated, vague and
conclusory” assertions regarding defendants’ harassment,
supported only by plaintiff’s beliefs and feelings. See Ifill v.
United Parcel Serv., No. 04-CV-5963, 2008 WL 2796599, at *10
(S.D.N.Y. July 17, 2008).
Accordingly, because plaintiff has failed to raise a
genuine issue of material fact as to her hostile work
environment claims under Title VII and NYSHRL, those claims must
Unlike Title VII and the NYSHRL, “the NYCHRL allows
liability to attach for harassing conduct that does not qualify
as ‘severe or pervasive.’” Fleming v. MaxMara USA, Inc., 644 F.
Supp. 2d 247, 268 (E.D.N.Y. 2009); see also Fenn v. Verizon
Commc’ns, Inc., No. 08-CV-2348, 2010 WL 908918, at *10 (S.D.N.Y.
Mar. 15, 2010) (“Under the NYCHRL, it appears that a somewhat
more relaxed standard applies for establishing a hostile work
The First Department of the New York
Appellate Division has held that, under the NYCHRL, “the primary
issue for a trier of fact in harassment cases . . . is whether
the plaintiff has proven by a preponderance of the evidence that
she has been treated less well than other employees because of
[a protected characteristic].” Williams v. N.Y.C. Hous. Auth.,
61 A.D.3d 62, 78 (N.Y. App. Div. 2009).
Indeed, New York State
courts have recognized that the “New York City Human Rights Law
was intended to be more protective than the state and federal
counterpart.” Farrugia v. N. Shore Univ. Hosp., 820 N.Y.S.2d
718, 724 (N.Y. Sup. Ct. 2006).
Irrespective of the more lenient standard set forth
under the NYCHRL, plaintiff has abandoned all of her claims
under the NYCHRL because she did not oppose defendants’ motion
for summary judgment on her NYCHRL claims.
“Federal courts may
deem a claim abandoned when a party moves for summary judgment
on one ground and the party opposing summary judgment fails to
address the argument in any way.” Taylor v. City of New York,
269 F. Supp. 2d 68, 75 (E.D.N.Y. 2003); see, e.g., Robinson v.
Roosevelt Union Free Sch. Dist., No. 10-CV-834, 2012 WL 1980410,
at *6 (E.D.N.Y. May 31, 2012) (“[T]he Court considers this claim
abandoned because plaintiff has failed to address it in her
opposition brief.”); Gaston v. City of New York, 851 F. Supp. 2d
780, 796 (S.D.N.Y. 2012) (“[Plaintiff] failed to respond or even
mention these claims in his opposition brief to defendants’
summary judgment motion. . . . Therefore, these claims are
dismissed as abandoned.” (citations omitted)); Robinson v. Am.
Int’l Grp., Inc., No. 08-CV-1724, 2009 WL 3154312, at *6
(S.D.N.Y. Sept. 30, 2009) (“[P]laintiff failed to address
defendants’ arguments regarding this claim and therefore has
abandoned it.”), aff’d, 396 F. App’x 781 (2d Cir. 2010).
Opposition, plaintiff does not invoke the NYCHRL or the
municipal statute’s more lenient standard for hostile work
environment claims. (See generally Pl.’s Opp.)
plaintiff explicitly states that her Complaint “was brought
pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq, § 1981 and the New York State Human Rights Law,”
conspicuously leaving out the NYCHRL. (Id. at 2.)
her Opposition or her Certification does plaintiff refer to any
claims brought pursuant to the NYCHRL. (See generally id.; Pl.’s
Moreover, in addressing defendants’ arguments on her
hostile work environment claims, plaintiff cites exclusively to
case law construing the standard for hostile work environment
claims under Title VII and the NYSHRL, rather than the more
lenient standard set forth under the NYCHRL. (Pl.’s Opp. at 48.)
Accordingly, the court finds that plaintiff has abandoned
her hostile work environment claims under the NYCHRL.
Even assuming, without deciding, that plaintiff did
not abandon her hostile work environment claims under the
NYCHRL, plaintiff has not discharged her burden to raise a
genuine issue of material fact on the issue of whether she was
subjected to unequal treatment because of her age, sex, or
As explained above, the evidence upon which
plaintiff relies is conclusory, is based primarily upon her
belief that HSBC employees were discriminating against her when
they purportedly mistreated her, and, in any event, fails to
give rise to an inference that she was treated unequally because
of her protected characteristics.
Instead, defendants have
demonstrated that “little or no evidence may be found in support
of [plaintiff’s] case.” Gallo, 22 F.3d at 1223–24.
if plaintiff preserved her hostile work environment claims under
the NYCHRL, plaintiff would be unable to surmount summary
judgment because she has failed to raise a triable issue of
material fact as to those claims.
In her Opposition, plaintiff failed to defend against
or address any of the arguments in defendants’ summary judgment
motion as to her initial retaliation claims. (See generally
In her Certification, Rule 56.1 Response, and at
Oral Argument, however, plaintiff continued to pursue her
Consequently, the court, in an abundance of
caution, does not deem plaintiff’s retaliation claims abandoned.
Nonetheless, plaintiff’s retaliation claims fail because she has
not adduced evidence sufficient to give rise to a genuine issue
of material fact.
To establish a prima facie case of retaliation under
Title VII and the NYSHRL, 15 plaintiff must “adduce evidence
sufficient to permit a rational trier of fact to find  that .
. . he engaged in protected participation or opposition . . .
 that the employer was aware of this activity,  that the
employer took adverse action against the plaintiff, and  that
a causal connection exists between the protected activity and
the adverse action, i.e., that a retaliatory motive played a
part in the adverse employment action.” Kessler v. Westchester
Retaliation claims brought under the NYSHRL and NYCHRL are
subject to the same analysis as Title VII retaliation claims. See Forrest v.
Jewish Guild for the Blind, 3 N.Y.3d 295, 312-13 (2003); see also McMenemy v.
City of Rochester, 241 F.3d 279, 283 n.1 (2d Cir. 2001). As discussed above,
however, plaintiff abandoned her claims under the NYCHRL. Thus, in ruling on
defendants’ summary judgment motion, the court need only determine the
viability of plaintiff’s retaliation claims under federal and state law.
Cnty. Dep’t of Soc. Servs., 461 F.3d 199, 205-06 (2d Cir. 2006)
(alterations and omissions in original) (internal quotation
Plaintiff’s retaliation claims are largely predicated
upon allegations of defendants’ retaliatory actions resulting
from her complaints about HSBC’s fraudulent banking activities.
Specifically, in her Complaint, plaintiff alleges that in
retaliation for complaining that Kourkoutis and Katz “were
violating federal, state and local banking laws in illegally
offering annuities to Hispanic, elderly and Non-English speaking
customers under the guise of federal [sic] protected Certificate
of Deposits,” she was subjected to a “daily barrage of threats,
insults, verbal abuse, a hostile work environment and derogatory
comments predicated upon” her age and national origin. (Compl.
Plaintiff’s retaliation claims, however, fail as a
matter of law because she has not participated in any protected
activity within the meaning of the anti-discrimination laws
regarding unlawful employment practices. 16
Defendants correctly observe that plaintiff, in responding to
the instant summary judgment motion and during Oral Argument, appears to have
raised a new retaliation claim based on plaintiff’s complaints to Kourkoutis
about her co-workers’ alleged derogatory and discriminatory comments. (See
Pl.’s Rule 56.1 Resp. ¶ 7; Tr. at 11-15.) Plaintiff’s newly raised
retaliation claim represents a significant departure from the retaliation
claim pled in her Complaint. As described above, plaintiff’s Complaint
alleges that “subsequent to informing defendants that they were violating the
law [regarding the sale of securities by falsely representing that they were
certificates of deposit,] respondents subject[ed] plaintiff to a daily
barrage of threats, insults, verbal abuse, a hostile work environment and
derogatory comments.” (Compl. ¶ 16.) By contrast, for the first time in her
The Second Circuit has long held that “[n]ot every act
by an employee in opposition to . . . discrimination is
The opposition must be directed at an unlawful
employment practice by an employer, not an act of discrimination
by an individual.” Wimmer v. Suffolk Cnty. Police Dep’t, 176
F.3d 125, 135 (2d Cir. 1999) (internal quotation marks omitted).
In Wimmer, the plaintiff police officer alleged that he was
given poor evaluations and ultimately terminated for reporting
racial slurs made by fellow police officers against black
citizens and for questioning another officer’s stops of Hispanic
drivers without cause. Id. at 134-35.
The Second Circuit held
that plaintiff’s claim was not actionable because “his
opposition was not directed toward an unlawful employment
practice of his employer.” Id. at 135.
Certification, plaintiff argued that she faced retaliation shortly after
complaining to Kourkoutis about her co-workers’ alleged discriminatory
hostility. (Pl.’s Cert. ¶ 10.) The court declines to entertain plaintiff’s
new claim, particularly because defendants, who have expended significant
resources in defending against plaintiff’s claims as they were alleged in her
Complaint, would be prejudiced by the court’s consideration of the new
retaliation claim. Thomas v. Egan, 1 F. App’x 52, 54 (2d Cir. 2001); Bush,
452 F. Supp. 2d at 406; Heletsi, 2001 WL 1646518, at *1 n.1 (“A party cannot
amend [her] complaint simply by alleging new facts and theories in their
memoranda opposing summary judgment.”). Courts have repeatedly held that
“[a]n opposition to a summary judgment motion is not the place to raise new
claims.” Lyman v. CSX Transp., Inc., 364 F. App’x 699, 701 (2d Cir. 2010)
(internal quotation marks omitted). Second, even if the court entertained
plaintiff’s new retaliation claim, the court is skeptical that plaintiff has
discharged her burden to adduce evidentiary material sufficient to give rise
to a genuine dispute of material fact as to the new retaliation claim.
Neither her deposition testimony nor her Opposition demonstrates a causal
connection between any protected activity and the unspecified adverse
employment action she purportedly suffered. Indeed, plaintiff has failed to
proffer any evidence, apart from her personal belief, establishing a causal
connection between her complaints and any adverse employment action.
In McMenemy, the Second Circuit, construing Wimmer, further
clarified that “the plaintiff’s claim in Wimmer failed because
the plaintiff’s activities were directed at the behavior of coemployees toward third parties and were unrelated to an
employment practice made illegal by Title VII.” 241 F.3d at 283.
Similarly, the district court in Kunzler v. Canon,
USA, Inc., 257 F. Supp. 2d 574, 579-80 (E.D.N.Y. 2003), held
that “acts of discrimination against private individuals, who
are not in an employment relationship with the person complained
about, are not within the area of unlawful employment practices
prohibited by Title VII.” See also Russell v. Aid to
Developmentally Disabled, Inc., No. 12-CV-389, 2013 WL 633573,
at *16 (E.D.N.Y. Feb. 20, 2013) (“[T]he Court notes that
plaintiff’s claim that she was terminated in retaliation for her
complaints to outside agencies regarding the care and treatment
of Northville residents is not cognizable under Title VII. . . .
The alleged mistreatment and abuse of residents at the
Northville facility is not an ‘unlawful employment practice’
prohibited by Title VII.” (citations omitted)); Berry v. Empire
Homes Servs. LLC, No. 06-CV-2354, 2010 WL 1037948, at *10
(E.D.N.Y. Mar. 18, 2010) (holding that plaintiff’s complaints to
management that the company was discriminating against AfricanAmerican and Hispanic customers did not rise to the level of
protected activity because the alleged discriminatory conduct
was not directed at employees). 17
Similar to the claims in Wimmer and its progeny,
plaintiff’s retaliation claims in this case, as pled in her
Complaint, do not concern protected activity because her
complaints were directed at alleged discriminatory conduct
towards HSBC’s customers and potential fraudulent activity
unrelated to any employment relationship between plaintiff and
Indeed, plaintiff explained that she was retaliated
against because she had complained about compliance with
procedures. (Petrisch Dep. – 1/8/10 at 86:5-87:9.)
plaintiff explained that she knows “a hundred percent” that her
poor performance review was in retaliation for reporting
“fraudulent activities.” (Petrisch Dep. – 2/24/11 at 142:4-17.)
Plaintiff also testified that she “know[s]” that she received
the September 2005 Action Plan “because [she] was a
whistleblower.” (Petrisch Dep. – 11/23/10) at 78:7-79:6.)
Finally, plaintiff averred that Kourkoutis took away her
These principles apply to claims brought pursuant to the NYSHRL
and NYCHRL because, as noted above, retaliation claims under the NYSHRL and
NYCHRL are “analytically identical” to Title VII. McDowell v. T-Mobile USA,
Inc., 307 F. App’x 531, 531 n.1 (2d Cir. 2009); Foxworth v. Am. Bible Soc.,
No. 03-CV-3005, 2005 WL 1837504, at *4 (S.D.N.Y. July 28, 2005) (“Wimmer and
its progeny make clear, however, that an allegation of discriminatory conduct
directed at third parties . . . does not state a cognizable claim of
employment discrimination. Thus, to the extent that plaintiff’s claims of
discrimination arise out of alleged discrimination against [third parties],
rather than against plaintiff herself, such claims may not be pursued under
Title VII or related state and municipal anti-discrimination statutes.”),
aff’d, 180 F. App’x 294 (2d Cir. 2006).
“privileges” of serving as the officer in charge of the branch
during his absence in part because of her complaints about Rego
Park Branch’s alleged fraudulent banking practices. (Petrisch
Dep. – 1/8/10 at 97:24-98:19.)
retaliation claims, which are predicated upon complaints about
defendants’ allegedly fraudulent sale of annuities as
Certificates of Deposits and defendants’ targeting of minorities
when doing so, are not anchored to any protected activity
against unlawful employment practices.
The court therefore
grants summary judgment to defendants and dismisses plaintiff’s
Plaintiff failed to contest or respond to any of the
legal arguments contained in defendants’ summary judgment motion
regarding her Section 1981 claim.
Opposition is bereft of any allegations or arguments related to
her Section 1981 claim. (See generally Pl.’s Opp.)
plaintiff press her Section 1981 claim during Oral Argument on
the instant motion. (See generally Tr.)
Accordingly, the court
deems plaintiff’s Section 1981 claim abandoned and, based on a
review of the record, grants summary judgment in favor of
defendants. See Taylor, 269 F. Supp. 2d at 75.
Moreover, even if plaintiff did not abandon her
Section 1981 claim, defendants correctly observe that “Section
1981 does not prohibit discrimination on the basis of gender . .
. national origin . . . or age” and instead only prohibits
discrimination based on race. Anderson v. Conboy, 156 F.3d 167,
170 (2d Cir. 1998) (citations omitted); Gad-Tadros v. Bessemer
Venture Partners, 326 F. Supp. 2d 417, 424 (E.D.N.Y. 2004).
Plaintiff’s allegations in her Complaint and throughout this
lawsuit have been limited solely to discrimination based on age,
sex, and national origin. (See Compl. ¶¶ 9, 12, 14, 18, 24,27;
Pls.’ Opp. at 2.)
Plaintiff has not presented, much less
pursued, any claim for intentional race-based discrimination in
Accordingly, plaintiff’s Section 1981 claim is
dismissed in its entirety.
Individual Liability Claims Against Katz and Kourkoutis
Finally, plaintiff asserts that Kourkoutis and Katz
are individually liable under the NYSHRL and the NYCHRL 18 as (A)
employers or (B) aiders/abettors who facilitate, encourage, or
permit unlawful discrimination.
Both claims lack merit and must
Individual Liability as “Employer”
In her Opposition, plaintiff failed to address or
respond to any of the legal arguments in defendants’ summary
judgment memorandum regarding her individual liability claims
As previously indicated, because plaintiff abandoned her NYCHRL
claims, all of which are dismissed, the court addresses only plaintiff’s
individual liability claims pursuant to the NYSHRL.
against Kourkoutis and Katz as “employers.”
Accordingly, the court deems these claims abandoned
and, on the record before the court, grants summary judgment in
favor of defendants on these individual liability claims. See
Taylor, 269 F. Supp. 2d at 75.
Even if the court reached the merits of plaintiff’s
individual liability claims against Kourkoutis and Katz as
employers, the undisputed facts demonstrate that plaintiff’s
claims must be dismissed.
The NYSHRL prohibits employers from
discriminating against an individual “because of an individual’s
age, race, creed, color, national origin, sexual orientation, .
. . [or] sex . . . .” N.Y. Exec. Law §296(1)(a).
In Patrowich v. Chem. Bank, 63 N.Y.2d 541, 542 (1984),
the New York Court of Appeals set forth a two-pronged test to
determine whether an individual with the title of supervisor or
manager may be held individually liable as an “employer”
pursuant to § 296(1).
Under Patrowich, an individual may be
held individually liable as an employer if he has (1) an
“ownership interest” in the company or (2) “any power to do more
than carry out personnel decisions made by others.” Id.
four factors a court may consider under the second prong of the
Patrowich test include whether the individual had the authority
to hire and fire employees, supervised and controlled employee
work schedules or employment conditions, determined payment rate
and method, and maintained employment records. Id. at 544; Maher
v. Alliance Mortg. Banking Corp., 650 F. Supp. 2d 249, 260
Turning to the first prong of Patrowich, the
undisputed record evidence establishes that neither Kourkoutis
nor Katz had an ownership interest in HSBC, apart from modest
stock options. (Kourkoutis Cert. ¶ 5; Katz Cert. ¶ 2.)
the second prong, the four factors set forth in Patrowich
establish that neither Kourkoutis nor Katz had any authority to
do anything more than carry out personnel decisions made by
other HSBC officers.
For example, Katz had no authority to hire
and fire employees, did not supervise and control employee work
schedules, had no ability to determine payment of HSBC
employees, did not maintain employment records, and had no
supervisory control or authority over plaintiff. (See Katz Cert.
¶¶ 3-4, 6; Katz Dep. at 8:17-24; Defs.’ Rule 56.1 Statement
Likewise, Kourkoutis had no authority to hire and fire
employees without the review of HSBC’s Human Resources
Department, had no ability to determine pay rate or method, and
did not maintain employment records. (Kourkourtis Cert. ¶ 6-8.)
Although Kourkoutis did supervise schedules of Rego Park Branch
employees, including plaintiff, he did so with the limited
authority vested in him by HSBC. (Kourkoutis Cert. ¶ 9.)
Thus, plaintiff’s individual liability claims against
Kourkoutis and Katz are dismissed.
Individual Liability as “Aider and Abettor”
The NYSHRL makes it unlawful “for any person to aid,
abet, incite, compel or coerce” acts prohibited by the NYSHRL
and NYCHRL. See N.Y. Exec. Law §296(6).
Importantly, aiding and
abetting “is only a viable theory where an underlying violation
has taken place.” Falchenberg v. N.Y. State Dep’t of Educ., 338
F. App’x 11, 14 (2d Cir. 2009); Nicholson v. Staffing Auth., No.
10-CV-2332, 2011 WL 344101, at *2 (S.D.N.Y. Feb. 1, 2011) (“A
predicate requirement of aider-and-abettor liability is a
finding of primary liability as to the employer.”); Bennett v.
Progressive Corp., 225 F. Supp. 2d 190, 213 (N.D.N.Y. 2002) (“In
order to hold an individual liable under [the aiding and
abetting provision], . . . plaintiff must also show that the
individual aided or abetted a primary violation of the [NY]HRL
committed by another employee or the business itself.”
(alterations in original) (internal quotation marks omitted)).
Because plaintiff’s underlying discrimination, retaliation, and
hostile work environment claims under NYSHRL have been dismissed
or otherwise abandoned, plaintiff’s claims against Kourkoutis
and Katz as aiders and abettors of such alleged discriminatory
conduct fail as a matter of law.
Additionally, although plaintiff cursorily asserts
that Kourkoutis and Katz coerced and incited plaintiff’s staff
to “insult, disrespect and [r]idicule plaintiff because of her
national origin . . . and age,” (Pl.’s Opp. at 10; see also
Pl.’s Cert. ¶ 10), plaintiff provides absolutely no support in
the record and no citation to any evidence to support this
As a consequence, plaintiff’s individual
liability claims against Kourkoutis and Katz as
“aiders/abettors” is likewise dismissed.
For the reasons set forth above, defendants’ motion
for summary judgment is granted in its entirety.
The Clerk of
the Court is respectfully requested to enter judgment in favor
of defendants and close this case.
Counsel for plaintiff, Mr.
Stephen C. Jackson, Esq., is respectfully directed to serve a
copy of this Memorandum and Order on his client immediately and
note service of the same on the docket no later than April 2,
In light of Mr. Jackson’s recent suspension from the
practice of law before the Eastern District of New York, see In
re Jackson, No. 13-MC-25 (E.D.N.Y. Jan. 16, 2013), the court has
taken the additional precaution of sending by overnight mail,
with receipt verification, a copy of this Memorandum and Order
to plaintiff at the following addresses, which were procured
from documents in the evidentiary record and via web search:
350 A Merrick Rd., Apt. K,
Rockville Centre, NY, 11570; and
405 E. 92nd Street, Apt. 20F,
New York, NY 10128.
The Clerk of the Court is instructed to send a copy of
the judgment and an appeals packet to plaintiff at the above two
March 28, 2013
Brooklyn, New York
KIYO A. MATSUMOTO
United States District Judge
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