Nielsen v. Pioneer Bank et al

Filing 50

SUMMARY ORDER - That Pioneer's 38 motion for summary judgment is GRANTED. That Nielsen's complaint (Dkt. No. 1) is DISMISSED. That the Clerk close this case. Signed by Senior Judge Gary L. Sharpe on 9/28/2018. (jel, )

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
________________________________
MARTHA A. NIELSEN,

Plaintiff,

1:15-cv-623
(GLS/CFH)

v.
PIONEER BANK,
Defendant.
________________________________
SUMMARY ORDER
Pending is Pioneer Bank’s motion for summary judgment, (Dkt. No.
38), which is granted for the reasons explained below.1
The standard of review pursuant to Fed. R. Civ. P. 56 is well
established and will not be repeated here. See Wagner v. Swarts, 827 F.
Supp. 2d 85, 92 (N.D.N.Y. 2011), aff’d sub nom. Wagner v. Sprague, 489
F. App’x 500 (2d Cir. 2012). Nielsen’s ADEA and Title VII claims, for age
discrimination and gender discrimination, respectively, are subject to the
McDonnell Douglas burden-shifting framework. See Chapotkat v. County

1

The parties’ familiarity with the court’s Memorandum-Decision and Order, which
granted in part and denied in part Pioneer’s motion to dismiss, (Dkt. No. 22), including the
factual allegations of the complaint, is assumed. Thus, the court sets forth facts only as
relevant to this Summary Order.

of Rockland, 605 F. App’x 24, 26 (2d Cir. 2015) (citing McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973)); Terry v. Ashcroft, 336 F.3d
128, 137-38 (2d Cir. 2003).
Even assuming that Nielsen was constructively discharged and has
met her initial burden of establishing a prima facie case of discrimination,2
Pioneer has proffered legitimate, nondiscriminatory reasons for her
discharge. See Chapotkat, 605 F. App’x at 26; Colandrea v. HunterTannersville Cent. Sch. Dist., 1:15-CV-0456, 2017 WL 1082439, at *7
(N.D.N.Y. Mar. 22, 2017) (“A defendant’s burden of providing a legitimate,
nondiscriminatory reason for the adverse employment action is not a
particularly steep hurdle.”) (internal quotation marks and citation omitted).
Jesse Tomczak, Nielsen’s supervisor, asked her many times to
monitor her financial advisors’ calls and actions so that she would know
their performance metrics, but she considered this request as asking her to
engage in micromanaging and spying on people. (Def.’s Statement of

2

For the reasons argued by Pioneer, (Dkt. No. 38, Attach. 14 at 20-24; Dkt. No. 49,
Attach. 1 at 9-10), the court is doubtful that Nielsen was constructively discharged. Of
particular note is that Nielsen testified at her deposition that she needed to achieve a million
dollars in sales to keep her job. (Dkt. No. 41, Attach. 1 at 108-09.) Pioneer hit that mark in
2015. (Id., Attach. 5 at 6; Dkt. No. 38, Attach. 12 ¶ 12). But even assuming that she was
constructively discharged, her evidence of discrimination is so utterly lacking that her claims
cannot survive summary judgment, as explained below. Thus, the court need not and does
not reach the issue of constructive discharge.

2

Material Facts (SMF) ¶ 27, Dkt. No. 38, Attach. 13); see Concepcion v.
Nice Park Prods., Inc., No. 03 Civ. 1894, 2004 WL 1810552, at *6
(S.D.N.Y. Aug. 13, 2004) (holding insubordination a legitimate,
nondiscriminatory reason for employment decision). Tomczak and Tom
Amell, President and CEO of Pioneer, were also concerned with the
underperformance of Glen Allen, one of Nielsen’s subordinate financial
advisors; he made only 56% and 58% toward his sales goals in 2012 and
2013, respectively. (Def.’s SMF ¶¶ 30-32.) Moreover, Nielsen concurred
with the findings that her other subordinate financial advisor, David Santos,
forged a customer’s signature on several wire transfer transactions. (Id.
¶¶ 11, 57.) Thus, even assuming that Pioneer constructively discharged
Nielsen, they had a legitimate, nondiscriminatory reason for doing so. See
Emanuel v. Oliver, Wyman & Co., LLC, 85 F. Supp. 2d 321, 328 (S.D.N.Y.
2000) (holding failure to fulfill employment responsibilities is legitimate,
nondiscriminatory reason).3
Given the existence of a legitimate, nondiscriminatory reason for her
3

It bears mentioning that “[f]ederal courts do not have a roving commission to review
business judgments . . . and may not sit as super personnel departments assessing the
merits—or even the rationality—of employers’ nondiscriminatory business decisions.” Dorcely
v. Wyandanch Union Free Sch. Dist., 665 F. Supp. 2d 178, 193 (E.D.N.Y. 2009) (internal
quotation marks and citations omitted).

3

presumed constructive discharge, the burden shifts back to Nielsen to
show that Pioneer’s explanation is pretext for discrimination. See
Chapotkat, 605 F. App’x at 26.
Nielsen does not offer evidence of a single gender-related comment
or incident by anyone. See Baur v. Rosenberg, Minc, Falkoff & Wolff, No.
07 Civ. 8835, 2008 WL 5110976, at *5 (S.D.N.Y. Dec. 2, 2008) (granting
summary judgment where plaintiff offered no discriminatory comments or
instances of discriminatory animus).
In her statement of additional material facts in dispute, she states
that “Tomczak and Eli Rabinowitz are both male, younger, and less
qualified than . . . Nielsen[,] and they [were] both treated more favorably by
Pioneer Bank than . . . Nielsen.” (Pl.’s SMF ¶ 81, Dkt. No. 44.) However,
Nielsen does not even attempt to explain how either Tomczak or
Rabinowitz were similarly situated to her. See Mandell v. County of
Suffolk, 316 F.3d 368, 379 (2d Cir. 2003) (“A plaintiff relying on disparate
treatment evidence must show she was similarly situated in all material
respects to the individuals with whom she seeks to compare herself.”)
(internal quotation marks and citation omitted); Rose v. Goldman, Sachs &
Co., 163 F. Supp. 2d 238, 242 (S.D.N.Y. 2001). Indeed, Nielsen admitted
4

that Tomczak did not have her job or title and Rabinowitz was a banker,
not a broker like herself. (Def.’s SMF ¶¶ 120-21.) And, in any event, she
fails to offer any specifics as to how Tomczak or Rabinowitz were treated
more favorably than her. See Diello v. Potter, 413 F. App’x 344, 346 (2d
Cir. 2011) (“[A] motion for summary judgment may not be defeated ‘by
offering purely conclusory allegations of discrimination, absent any
concrete particulars.’”) (quoting Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.
1985)).
Thus, even assuming that Nielsen can make out a prima facie case
of gender discrimination—a bad assumption given her utter lack of
evidence—she cannot meet her burden of showing pretext.
Nor can Nielsen meet her burden for her ADEA claim. That is, she
cannot demonstrate that a reasonable jury could conclude by a
preponderance of the evidence that Pioneer’s explanations are pretextual
and that, but for her age, she would not have been constructively
discharged. See Chapotkat, 605 F. App’x at 26.4 She asserts, as
evidence of age discrimination, that Amell and Tomczak each asked her

4

It should be noted that the ADEA’s “but-for” standard is stricter than the Title VII
standard. See McAllister v. Quik Park, 661 F. App’x 61, 63 (2d Cir. 2016); Gorzynski v.
JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010).

5

how long she planned on staying at Pioneer. (Pl.’s SMF ¶¶ 21, 39.) But
simply inquiring about an employee’s plans, including retirement, is not
discriminatory. See Crowe v. Leroy Cent. Sch. Dist., 949 F. Supp. 2d 435,
446 (W.D.N.Y. 2013) (“[A] company has a legitimate interest in learning its
employees’ plans for the future, and it would be absurd to deter such
inquiries by treating them as evidence of unlawful conduct.”) (internal
quotation marks and citation omitted); Beers v. NYNEX Material Enters.,
No. 88 Civ. 0305, 1992 WL 8299, at *10 (S.D.N.Y. Jan. 13, 1992)
(“[Q]uestions about how long plaintiff planned to work seem to exhibit no
more than an employer’s valid interest in an employee’s career plans.”)5
Nielsen also states that she was told by Frank Sarratori, an
Executive Vice President, “Don’t worry there will be something for you here
because you have been around forever.” (Pl.’s SMF ¶¶ 26, 30.) This
comment is not discriminatory because it is age-neutral. See Slattery v.
Swiss Reinsurance Am. Corp., 248 F.3d 87, 92 (2d Cir. 2001) (ignoring
age-neutral statements); Veleanu v. Beth Israel Med. Ctr., No. 98 CIV.
7455, 2000 WL 1400965, at *5 (S.D.N.Y. Sept. 25, 2000) (holding

5

Indeed, Nielsen admitted at her deposition that Amell and Tomczak could have asked
such questions “for future planning reasons.” (Def.’s SMF ¶¶ 104, 110.)

6

comments directed to length of tenure were age-neutral and not supportive
of discrimination).6 Likewise, Tomczak’s alleged comment to Nielsen,
“[Y]ou’re useless, and I’m just going to demote you and run the whole thing
myself,” (Pl.’s SMF ¶ 63), is, despite being disrespectful, age-neutral. See
Owens v. Napolitano, No. 05 CV 5987, 2011 WL 1327118, at *7 (E.D.N.Y.
Mar. 31, 2011) (“The comments are clearly disrespectful; but that they are
‘disrespectful’ does not give rise to an inference of discrimination.”); Baur v.
Rosenberg, Minc, Falkoff & Wolff, 2008 WL 5110976, at *5 (holding
whether or not employer treated plaintiff with respect is not evidence of age
discrimination).
Nielsen also states that Sarratori told her, “Some people feel you will
have a problem fitting in to the new culture, but I told them you would fit in
because you dress young and stylish.” (Pl.’s SMF ¶ 26.)7 This comment is
nondiscriminatory. See Dorfman v. Doar Commc’ns, Inc., No. 03CV573,
2005 WL 1861813, at *4 (E.D.N.Y. Aug. 2, 2005), aff’d, 314 F. App’x 389

6

Amell’s alleged comment to Nielsen about a “soft landing to her retirement” is also
age-neutral. (Pl.’s SMF ¶ 70.) In any event, even if this mere reference to retirement is
relevant to constructive discharge, it lacks any probative value as to discrimination.
7

Nielsen argues that Amell implemented a culture with the stated goal of transforming
Pioneer to “‘World-Class,’ an elusive and undefined term,” (Dkt. No. 45 at 6), as if to imply that
term is somehow discriminatory. The court refuses to engage in rank speculation that “WorldClass” is sexist or ageist, especially because Nielsen offers no reason to do so.

7

(2d Cir. 2009) (holding remark that plaintiff did not “fit the culture” did not
raise inference of discrimination); Douglas v. Dist. Council 37 Mun. Emps.’
Educ. Fund Tr., 207 F. Supp. 2d 282, 286, 291 (S.D.N.Y. 2002) (holding
ambiguous and abstract remarks, including “[t]hat is what happens when
you get old, you lose your hair,” did not raise inference of age
discrimination) (internal citation omitted).
Additionally, Nielsen contends that Amell took away her role and
responsibilities as Insurance Officer and transferred the responsibilities to
a younger, unqualified female. (Pl.’s SMF ¶ 24.) But Nielsen made no
mention of this in her complaint. (See Compl., Dkt. No. 1.)8 In any event,
she provides no indication in any of her papers—let alone admissible
evidence—of that younger female’s age. “Generalized allegations of
replacement by younger workers do not, without more, prove discrimination
. . . especially when . . . the plaintiff offers no evidence of how much
younger the replacements were.” Gmyrek v. Metro. Life Ins. Co., No. 04
CV 3801, 2007 WL 2403205, at *4 (E.D.N.Y. Aug. 20, 2007) (internal

8

This alone provides a basis to ignore the contention because at summary judgment, a
court may decline to consider facts raised for the first time in opposition papers. See Russell
v. N.Y. Univ., No. 1:15-cv-2185, 2017 WL 3049534, at *37 (S.D.N.Y. July 17, 2017), aff’d,
17-2527-cv, 2018 WL 3115795 (2d Cir. June 25, 2018) (collecting cases).

8

quotation marks and citation omitted).
Nielsen does adduce one discriminatory comment by Tomczak: he
told her that “there was a vision of young, hip broker-ie type [advisors] - not
staid old advisors.” (Dkt. No. 41, Attach. 1 at 88.)9 This isolated comment
is not nearly enough to show that age was the but-for cause of Nielsen’s
presumed constructive discharge. See Ashton v. Pall Corp., 32 F. Supp.
2d 82, 90 (E.D.N.Y. 1999) (“[I]solated comments cannot in and of
themselves make out a case of employment discrimination); O’Connor v.
Viacom Inc./Viacom Int’l Inc., No. 93 CIV. 2399, 1996 WL 194299, at *5
(S.D.N.Y. Apr. 23, 1996), aff’d, 104 F.3d 356 (2d Cir. 1996) (“[T]hree
isolated remarks . . . are insufficient to establish pretext.”) (footnote
omitted).10
9

In her statement of additional material facts in dispute, Nielsen states that Tomczak
told her “that there was a vision of ‘young, hip advisors, not staid old advisors’ and that Tom
Amell was looking for ‘a younger team.’” (Pl.’s SMF ¶ 41.) However, this misquotes the
deposition testimony that she cites as support. The court thus quotes Nielsen’s deposition
transcript.
10

Contrary to her contention in her response to Pioneer’s statement of material facts,
(Dkt. No. 43 ¶ 115), at her deposition, Nielsen admitted that she could have made a complaint
to human resources, (Dkt. No. 41, Attach. 1 at 146-47); see Osborne v. Literacy Partners, Inc.,
No. 04 Civ. 6652, 2007 WL 2298354, at *6 (S.D.N.Y. Aug. 9, 2007) (granting summary
judgment and noting fact that plaintiff never filed an internal complaint “signifies that she did
not believe discrimination was a substantial problem while she worked there”); Dobrynio v.
Cent. Hudson Gas & Elec. Corp., 419 F. Supp. 2d 557, 565 (S.D.N.Y. 2006). She did testify
that, on her last day, she told a senior Human Resources person that “[she] had a glowing
review in January and now [she’s] out the door. Isn’t that an HR nightmare?” (Dkt. No. 41,
Attach. 1 at 147 (internal quotation marks omitted).) Notably, this comment does not include

9

The court is mindful that an extra measure of caution is merited when
granting summary judgment in a discrimination action because direct
evidence of discriminatory intent is rare, and such intent often must be
inferred from circumstantial evidence found in affidavits and depositions.
See Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). However,
“summary judgment remains available for the dismissal of discrimination
claims in cases lacking genuine issues of material fact.” Id. (internal
quotation marks and citation omitted). So here. Absent one isolated
remark, Nielsen’s age discrimination claim is a faulty syllogism: something
bad happened to her at work; she is in a protected class; therefore it must
have happened because she is in that protected class. See House v.
Wackenhut Servs., Inc., No. 10 Civ. 9476, 2012 WL 4017334, at *1
(S.D.N.Y. Aug. 20, 2012). Nielsen has not presented enough evidence to
permit a reasonable jury to find that age was the but-for reason for her
presumed constructive discharge. See Slattery v. Swiss Reinsurance Am.
Corp., 248 F.3d 87, 94 (2d Cir. 2001).
Accordingly, it is hereby
ORDERED that Pioneer’s motion for summary judgment (Dkt. No.
even an allusion to age. All of this undercuts what is already a fatally weak claim.

10

38) is GRANTED; and it is further
ORDERED that Nielsen’s complaint (Dkt. No. 1) is DISMISSED; and
it is further
ORDERED that the Clerk close this case; and it is further
ORDERED that the Clerk provide a copy of this Summary Order to
the parties.
IT IS SO ORDERED.
September 28, 2018
Albany, New York

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