Rogers v. The Bank of New York Mellon Corporation et al

Filing 119

OPINION AND ORDER re: 105 MOTION for Reconsideration, filed by Rosemary Lynch, Darlane Hoffman, Roseanne Bodnar, Donald McCarthy, Charles Parker, The Bank of New York Mellon, David Klienman, Laura Desiderio, Phil Romm. Defen dants' motion for reconsideration (D.I. 105) is granted and, upon reconsideration, all of plaintiff's claims alleging race- and color-based pay discrimination against the Bank of New York Mellon and defendants Hoffman and Lynch are dismis sed. Defendants' motion to dismiss the Complaint in its entirety (D.I. 105) is granted, provided that, if plaintiff wishes to proceed with a claim of discrimination based on national origin, she may file an amended complaint that includes factual allegations sufficient to support such a claim within thirty days of this Opinion and Order, and as further set forth herein. (Signed by Magistrate Judge Henry B. Pitman on 9/19/2017) Copies mailed by chambers. (ras)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
-----------------------------------X
JACQUELINE ROGERS,

:
Plaintiff,

-against-

:
:

THE BANK OF NEW YORK MELLON
f/k/a, THE BANK OF NEW YORK
COMPANY, INC., DARLANE HOFFMAN,
MANAGING DIRECTOR, in her
individual and professional
capacity, DONALD MCCARTHY,
in his individual and
professional capacity,
CHARLES PARKER in his individual
and professional capacity,
ROSEMARY LYNCH, in her individual
and professional capacity,
ROSANNE BODNAR in her individual
and personal capacity and
LAURA DESIDERIO in her
individual and professional
capacity,
Defendants.

:

09 Civ. 8551 (HBP)

:

OPINION
AND ORDER

:
:
:
:
:
:
:
:

-----------------------------------X

PITMAN, United States Magistrate Judge:

By Opinion and Order filed on August 15, 2016, familiarity with which is assumed, I granted in part and denied in
part defendants' motion for summary judgment and dismissed most
of plaintiff's claims of employment discrimination (see Redacted
Opinion & Order, filed Aug. 15, 2016 (Docket Item ("D.I.") 95)

("Opinion & Order")).1
Defendants have moved, pursuant to Local Civil Rule
6.3, Fed.R.Civ.P. 59(e) and Fed.R.Civ.P. 60(b), for reconsideration of that portion of the Opinion & Order that denied defendants' motion for summary judgment with respect to plaintiff's
pay discrimination claims (Notice of Motion for Reconsideration,
dated Nov. 10, 2016 (D.I. 105) ("Defs.' Motion")).2

Defendants

also seek reconsideration of that aspect of my decision which
declined to address plaintiff's claim that she was discriminated
against on the basis of national origin (Defs.' Motion at 2).
Plaintiff, who is now proceeding pro se,3 opposes the
motion (see Letter from Plaintiff to the Undersigned, dated May

1

The Opinion & Order was initially filed under seal and sent
to the parties on July 14, 2016; it was later filed in redacted
form to protect confidential salary information (Opinion & Order
at i n.1).
2

Plaintiff has asserted pay discrimination claims against
the Bank of New York Mellon pursuant to Title VII of the Civil
Rights Act of 1964, 42 U.S.C. §§ 2000e et seq. ("Title VII"), the
New York State Executive Law §§ 290 et seq., ("NYSHRL") and the
New York City Administrative Code §§ 8-107 et seq. ("NYCHRL").
She has also asserted pay discrimination claims against Darlane
Hoffman and Rosemary Lynch pursuant to the NYSHRL and the NYCHRL
(Defs.' Motion at 2; Mem. of Law in Supp. of Defendants' Motion
for Reconsideration, dated Nov. 10, 2016 (D.I. 106) ("Defs.'
Mem.")).
3

Plaintiff was represented by counsel at the time that the
underlying summary judgment motion was briefed; plaintiff's
counsel was relieved on March 10, 2017 (see Order, dated Mar. 10,
2017 (D.I. 111)).
2

31, 2017; Letter from Plaintiff to the Undersigned, dated May 8,
2017 (D.I. 116)).
All parties have consented to my exercising plenary
jurisdiction pursuant to 28 U.S.C. § 636(c).
For the reasons set forth below, defendants' motion is
granted.

However, for the reasons set forth below, plaintiff is

granted leave to replead that portion of her Complaint that
alleges discrimination on the basis of national origin.

I.

Legal Standard for
Motion for Reconsideration

Motions for reconsideration are appropriate only under
limited circumstances.

As explained by the late Honorable Peter

K. Leisure, United States District Judge, in Davidson v. Scully,
172 F. Supp. 2d 458, 461-62 (S.D.N.Y. 2001):
A motion for reconsideration may not be used to
advance new facts, issues or arguments not previously
presented to the Court, nor may it be used as a vehicle
for relitigating issues already decided by the Court.
See Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d
Cir. 1995). A party seeking reconsideration "is not
supposed to treat the court's initial decision as the
opening of a dialogue in which that party may then use
such a motion to advance new theories or adduce new
evidence in response to the court's rulings." Polsby
v. St. Martin's Press, Inc., No. 97 Civ. 690, 2000 WL
98057, at *1 (S.D.N.Y. Jan 18, 2000) (Mukasey, J.).
Thus, a motion for reconsideration "is not a substitute
for appeal and 'may be granted only where the Court has
overlooked matters or controlling decisions which might
have materially influenced the earlier decision.'"
3

Morales v. Quintiles Transnational Corp., 25 F. Supp.
2d 369, 372 (S.D.N.Y. 1998) (citations omitted).
See also Torres v. Carry, 672 F. Supp. 2d 346, 348 (S.D.N.Y.
2009) (Marrero, D.J.); Mahmud v. Kaufmann, 496 F. Supp. 2d 266,
269-70 (S.D.N.Y. 2007) (Conner, D.J.).
"The standard for granting such a motion is strict, and
reconsideration will generally be denied unless the moving party
can point to controlling decisions or data that the court overlooked -- matters, in other words, that might reasonably be
expected to alter the conclusion reached by the court."

Shrader

v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995); accord In
re 650 Fifth Ave. & Related Properties, 08 Civ. 10934 (KBF), 2014
WL 3744404 at *1 (S.D.N.Y. July 28, 2014) (Forrest, D.J.), aff'd
sub nom., Havlish v. Hegna, 673 F. App'x 34 (2d Cir. 2016)
(summary order), petition for cert. filed, No. 17-306 (Aug 24,
2017); see also Quinn v. Altria Grp., Inc., 07 Civ. 8783
(LTS)(RLE), 2008 WL 3518462 at *1 (S.D.N.Y. Aug. 1, 2008) (Swain,
D.J.) ("A movant for reconsideration bears the heavy burden of
demonstrating that there has been an intervening change of
controlling law, that new evidence has become available, or that
there is a need to correct a clear error or prevent manifest
injustice."), citing Virgin Airways v. Nat'l Mediation Bd., 956
F.2d 1245, 1255 (2d Cir. 1992)).

"These limitations serve to

4

ensure finality and to prevent losing parties from using motions
for reconsideration as a vehicle by which they may then plug the
gaps of a lost motion with additional matters."

In re City of

New York, as Owner & Operator of M/V Andrew J. Barberi,
CV-03-6049 (ERK)(VVP), 2008 WL 1734236 at *1 (E.D.N.Y. Apr. 10,
2008), citing Zoll v. Jordache Enters. Inc., 01 Civ. 1339 (CSH),
2003 WL 1964054 at *2 (S.D.N.Y. Apr. 24, 2003) (Haight, D.J.);
accord Cohn v. Metro. Life Ins., Co., 07 Civ. 0928 (HB), 2007 WL
2710393 at *1 (S.D.N.Y. Sept. 7, 2007) (Baer, D.J.).

II.

Analysis

A.

Pay Discrimination
under Title VII and the NYSHRL

Claims of discrimination under Title VII and the NYSHRL
that result in an identifiable adverse employment action are
properly analyzed under the now familiar framework first set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802
(1973).

Simmons v. Akin Gump Strauss Hauer & Feld, LLP, 508 F.

App'x 10, 12 (2d Cir. 2013) (summary order); Mandell v. County of
Suffolk, 316 F.3d 368, 377 (2d Cir. 2003); Raskin v. Wyatt Co.,
125 F.3d 55, 60 (2d Cir. 1997).
For a plaintiff to establish a prima facie case of
disparate treatment based on pay discrimination, she must show
5

that:
(1) she was a member of a protected class; (2) she was
qualified for the job in question; (3) she was paid
less than members outside of the protected class for
the same work; and (4) the employer's decision to pay
the plaintiff less occurred under circumstances that
give rise to an inference of discrimination.
Lawless v. TWC Media Sols., Inc., 487 F. App'x 613, 617-18 (2d
Cir. 2012) (summary order), citing Belfi v. Prendergast, 191 F.3d
129, 139-40 (2d Cir. 1999); see also McGuinness v. Lincoln Hall,
263 F.3d 49, 53 (2d Cir. 2001).

Further, "[t]he facts necessar-

ily will vary in Title VII cases, and the specification above of
the prima facie proof required from [plaintiff] is not necessarily applicable in every respect to differing factual situations."
McDonnell Douglas Corp. v. Green, supra, 411 U.S. at 802 n.13.
Under this standard, "[a] plaintiff makes out a prima
facie case when she produces evidence to show that a similarly
situated employee outside of the relevant protected group received better treatment."

Lawless v. TWC Media Sols., Inc.,

supra, 487 F. App'x at 618, citing McGuinness v. Lincoln Hall,
supra, 263 F.3d at 53; accord Farias v. Instructional Sys., Inc.,
259 F.3d 91, 98 (2d Cir. 2001); see, e.g., McGuinness v. Lincoln
Hall, supra, 263 F.3d at 56 (even in the absence of direct
evidence of discrimination, evidence that defendants provided
substantially different severance packages to similarly situated

6

employees outside of the protected class established a "record
[that was] susceptible to a reasonable determination that the
defendant offered employees different severance packages on the
basis of their race" ).4
If a plaintiff succeeds in establishing a prima facie
case, the employer bears the burden of articulating a non-discriminatory reason for the unequal treatment.
Media Sols., Inc., supra, 487 F. App'x at 616.

Lawless v. TWC
"[O]nce the

employer 'articulates a non-discriminatory reason' for its

4

Contrary to defendants' assertions (Defs.' Mem. at 12), a
plaintiff is not always required to proffer evidence of discrimination in order to make out a prima facie case of discrimination.
As explained by the Court of Appeals,
[a]t the outset, a plaintiff can avoid dismissal by
presenting the "minimal" prima facie case defined by
the Supreme Court in McDonnell Douglas. This requires
no evidence of discrimination. It is satisfied by a
showing of "membership in a protected class, qualification for the position, an adverse employment action,"
and preference for a person not of the protected class.
Fisher, 114 F.3d at 1335; see McDonnell Douglas, 411
U.S. at 802, 93 S.Ct. 1817. By making out this "minimal" prima facie case, even without evidence of discrimination, the plaintiff "creates a presumption that
the employer unlawfully discriminated," Fisher, 114
F.3d at 1335 (internal quotation marks omitted), and
thus places the burden of production on the employer to
proffer a nondiscriminatory reason for its action. If
the defendant fails to discharge the burden by presenting a nondiscriminatory reason, the plaintiff will
prevail (assuming the other aspects of the prima facie
case are not contested).
James v. N.Y. Racing Ass'n, 233 F.3d 149, 153-54 (2d Cir. 2000).
7

actions . . . the presumption [of discrimination] completely
'drops out of the picture.'"

James v. N.Y. Racing Ass'n, supra,

233 F.3d at 154 (citation omitted).

If the employer meets that

burden, however, the plaintiff may still defeat a summary judgment motion by presenting evidence that the defendants' reasons
are a pretext for illegal discrimination.

Howley v. Town of

Stratford, 217 F.3d 141, 150 (2d Cir. 2000) ("[M]erely showing
that the employer's proffered explanation is not a genuine
explanation does not in itself entitle the plaintiff to prevail;
the plaintiff is not entitled to judgment unless she shows that
the challenged employment decision was more likely than not
motivated, in whole or in part, by unlawful discrimination.");
Holt v. KMI-Cont., Inc., 95 F.3d 123, 129 (2d Cir. 1996) ("In
order to survive a motion for summary judgment, at the third step
plaintiff must put forth adequate evidence to support a rational
finding that the legitimate non-discriminatory reasons proffered
by the employer were false, and that more likely than not the
employee's sex or race was the real reason for the discharge.").
In the Opinion & Order, I denied defendants' motion for
summary judgment on plaintiff's race- and color-based pay discrimination claims because plaintiff presented evidence that (1)
at least two similarly situated white office managers and one
Latino office manager were paid more than plaintiff, who is

8

African-American, and (2) there were white office managers who
were reviewed for raises on a shorter salary review cycle5 than
plaintiff (Opinion & Order at 42-44).

I also noted that defen-

dants had not "offered any evidence demonstrating that the office
managers who received higher salaries or received [more frequent]
salary increases . . . had credentials that were better or
experience greater than plaintiff's" (Opinion & Order at 42-43).
Thus, I concluded that there was a question of fact as to whether
plaintiff's lower salary and longer salary cycle reviews were the
result of discrimination (Opinion & Order at 43-45).
Defendants assert that the Opinion & Order overlooked
evidence they presented that demonstrated that the white and
Latino office managers who received higher salaries or more
frequent salary increases had more years of service than plaintiff (Defs.' Mem. at 9-11).

Defendants argued in their motion

for summary judgment that the length of an employee's service was
one of the factors defendants considered in setting the office
managers' salaries (see Mem. of Law in Supp. of Defendants'
Motion for Summary Judgment, dated Dec. 5, 2014, at 22, citing

5

The length of a salary review cycle determines when an
employee will be reviewed for a salary increase (Opinion & Order
at 6 n.7, citing Pl. Responses to Defendants' Rule 56.1 Statement, dated Jan. 28, 2015 ("Pl. Rule 56.1 Stmt.") ¶ 66). Plaintiff was on an 18-month salary review cycle (Opinion & Order at
6).
9

Defendants' Rule 56.1 Statement, dated Dec. 5, 2014, ¶ 60 and
Deposition of Darlane Hoffman ("Hoffman Dep."), annexed as Ex. 5
to Decl. of Howard M. Rogatnick in Supp. of Defendants' Motion
for Summary Judgment, dated Dec. 5, 2014 ("Rogatnick Decl."), at
51).

In support, defendants cited the testimony of plaintiff's

manager in which she stated that she determined employees' salary
increases by considering an employee's "time on the job" and
other factors (Hoffman Dep. at 51).

Defendants argue that I

overlooked this testimony and evidence attached to their papers
that corroborated Ms. Hoffman's testimony.

Defendants submitted

a chart that set forth the "effective dates" of the salaries for
the office managers, including plaintiff and the white and Latino
office managers who plaintiff asserts were paid more than her or
received raises more frequently than her (see Defs.' Mem. at 1011 & n.11, citing "Salaries of Office Managers in Technology
Sector From 2000-2006," annexed as Ex. 29 to Rogatnick Decl.
("Salary Chart")).

Defendants are correct that this evidence

shows that the white and Latino office managers that plaintiff
asserts were paid more than her or received raises more frequently than her became office managers in 2001 or earlier, while
plaintiff was not promoted to the position until January 2005
(see Salary Chart).
Plaintiff did not specifically controvert the effective

10

dates and salary information provided in the Salary Chart (Pl.
Rule 56.1 Stmt., ¶¶ 62-64).

Plaintiff "denie[d, however,] that

[she] was being paid fairly in comparison to other employees in
the same position" (Pl. Rule 56.1 Stmt. ¶ 60).

Plaintiff submit-

ted a declaration stating that "Caucasian Office Managers were
paid at a higher rate of pay and continue to be on a 12 to 15
mont[h] salary cycle review, while minorities are paid less and
are placed on extended salary cycle reviews" (Declaration of
Jacqueline Rogers, dated Jan. 28, 2015 ("Pl. Decl.") ¶ 10).

She

also asserted that she was given "more assignments that [sic]
reflected [in her] title and position at the Bank" and that she
did not receive the "back-up assistance or part-time help," that
was provided to other office managers (Pl. Decl. ¶¶ 7,9; see also
Deposition of Jacqueline Rogers, annexed as Ex. A to Declaration
of Stewart Lee Karlin, Esq. dated Jan. 28, 2015, at 258-61).
Plaintiff also stated that she was the only office manager whose
salary was determined by the Human Resources Department, rather
than by her manager; she asserted that her manager had previously
determined the salary for a white office manager without involving Human Resources (Pl. Decl. ¶¶ 11-12).

Plaintiff did not

proffer any evidence to support these broad statements in her
declaration nor did she dispute defendants' evidence that length
of service was the reason for the differences in treatment

11

between plaintiff and her comparators.
Reconsideration is warranted because defendants have
identified evidence that they submitted in support of their
motion for summary judgment that supported their position that
there was a non-discriminatory reason for the differences in
salary and salary review cycles between plaintiff and office
managers outside of her protected class.

Evidence that a plain-

tiff's comparators had greater lengths of service in the position
constitutes a legitimate, non-discriminatory reason for providing
plaintiff with a lower salary and less frequent salary reviews.
See Holt v. KMI-Cont., Inc., supra, 95 F.3d at 129–30 ("The
evidence that defendant filled these [two promotional positions
that were denied plaintiff, an African American,] with white
applicants who were more qualified [and had more experience] than
plaintiff rebuts any presumption of discrimination."); see also
Dhar v. N.Y.C. Dep't of Transp., 630 F. App'x 14, 15–16 (2d Cir.
2015) (summary order) ("claims of pay discrimination and denial
of promotion opportunities fail[ed] because the defendants had a
legitimate and non-discriminatory reason for the differences in
salaries and promotions between [plaintiff] and his comparators,
and [plaintiff] failed to present any evidence that their legitimate reason -- differing education and experience -- was
pretextual"); Miller v. Batesville Casket Co., Inc., 312 F. App'x

12

404, 407 (2d Cir. 2009) (summary order) ("We agree with the
district court that [the plaintiff] failed to provide sufficient
evidence to rebut [the employer's] non-discriminatory explanation
for the allegedly more desirable sales accounts provided to [male
employees], i.e., their seniority and experience"); Fayson v.
Kaleida Health, Inc., 71 F. App'x 875, 876 (2d Cir. 2003) (summary order) (affirming summary judgment dismissing federal pay
discrimination claims where defendant presented evidence that
comparators outside of protected class had higher salaries
because they previously held higher positions or had greater
experience than plaintiff and plaintiff failed to set forth any
evidence that these non-discriminatory reasons were pretextual).
Defendants' evidence of a non-discriminatory reason for
the pay disparity is also supported by other evidence in the
record.

The fact that both white and African-American office

managers often received raises more frequently than every 18
months cuts against plaintiff's argument that the decision to
place plaintiff on an 18-month salary cycle review was related to
her race or color (Defs.' Mem. at 7-8, 10-11, citing Salary
Chart).

Further, undisputed evidence that one white office

manager was paid less than plaintiff and one African-American
office manager was paid more than some of the white office
managers further bolsters defendants' position that salaries were

13

based on factors other than race or color (Defs.' Mem. at 7-8,
10-11, citing Salary Chart).

See Holt v. KMI-Cont., Inc., supra,

95 F.3d at 134 (finding that the fact that a white employee was
prohibited from participating in a bonus program under the same
circumstances as plaintiff, a black female, "bolster[ed]" defendant's assertion that plaintiff did not meet the eligibility
requirements for the program); see also McGuinness v. Lincoln
Hall, supra, 263 F.3d at 55-56 (although female plaintiff established prima facie case because a similarly situated male received a better severance package, "defendant's offer of a high
severance payment [to a female comparator]," and a severance
package to a male comparator that was similar to plaintiff's,
"cu[t] against plaintiff's claims of gender discrimination").
Thus, on reconsideration, I find that defendants have more than
met their burden of offering a legitimate non-discriminatory
reason for the differences in salary and the timing of salary
reviews between plaintiff and certain office managers outside of
her protected class.
Plaintiff, however, has failed to offer evidence to
suggest that defendants' non-discriminatory explanation for the
difference in compensation between her and the office managers
outside of her protected class was pretextual.

Plaintiff did not

cite to any evidence, other than her personal beliefs, to support

14

her assertions that she was given more work, had greater responsibilities or received less administrative support than other
office managers.

Furthermore, plaintiff did not cite any evi-

dence other than her personal suspicions to support her conclusion that she was the only office manager whose salary was
determined by Human Resources or that that decision was related
to her race or color.

Plaintiff's "personal belief that she was

the most qualified person for the various positions," without
evidentiary support, is insufficient to create a genuine issue of
material fact to defeat summary judgment.

See Holt v. KMI-Cont.,

Inc., supra, 95 F.3d at 130; see also Clayborne v. OCE Bus.
Services, 381 F. App'x 32, 35 (2d Cir. 2010) (summary order)
("Conclusory [unsupported] allegations cannot create a genuine
issue of fact" to defeat summary judgment); Smith v. American
Express Co., 853 F.2d 151, 154–55 (2d Cir. 1988) (summary judgment was appropriate where plaintiff's allegations that the
reasons given for the denial of his promotion were pretextual
were "conclusory and unsupported by evidence of any weight").
Further, plaintiff has not proffered any additional
evidence of discriminatory animus to support her allegations of
pretext; rather she relies solely on the disparity in pay and
salary review periods between herself and other office managers
to support her claim of discrimination (see Mem. In Opp. to

15

Defs.' Motion for Summary Judgment, dated Jan. 28, 2015 ("Pl.
Mem.") at 19-21; Pl. Decl. at 21).6

Thus, even if plaintiff did

cast doubt on defendants' proffered reason for the differences in
her salary and review cycle, plaintiff failed to put forth
sufficient evidence of discrimination to create a genuine issue
of fact.

See Deabes v. Gen. Nutrition Corp., 415 F. App'x 334,

336 (2d Cir. 2011) (summary order) (affirming summary judgment
for defendant because, "[e]ven if the record, viewed in the light
most favorable to [plaintiff], contains inconsistent testimony
concerning [defendant's asserted non-discriminatory reason for
terminating plaintiff], this is insufficient to create a genuine
issue of material fact, as [plaintiff] has pointed to no evidence
that would permit a rational factfinder to infer that [defendant]
was motivated by unlawful discriminatory intent," citing St.
Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) ("[A] reason
cannot be proved to be 'a pretext for discrimination' unless it
is shown both that the reason was false, and that discrimination
was the real reason.") (emphasis in original)).
Therefore, on reconsideration, defendants' motion for
summary judgment on plaintiff's claims of race- and color-based

6

As discussed in the Opinion & Order, plaintiff also failed
to put forth sufficient evidence to show that she was subject to
discriminatory or offensive conduct because of her race, color or
gender to create an issue of fact as to her hostile work environment claims or her retaliation claims (Opinion & Order at 47-69).
16

pay discrimination in violation of Title VII and the NYSHRL is
granted.

B.

Pay Discrimination under NYCHRL

As noted in the Opinion & Order, plaintiff's NYCHRL
claims must be analyzed separately from her federal and state law
claims.

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., 715

F.3d 102, 109 (2d Cir. 2013).
To survive a motion for summary judgment seeking
dismissal of a NYCHRL claim, plaintiff need only show that "she
has been treated less well than other employees" at least in part
because of her race or sex.

Williams v. N.Y.C. Hous. Auth., 61

A.D.3d 62, 78, 872 N.Y.S.2d 27, 39 (1st Dep't), leave to appeal
denied, 13 N.Y.3d 702, 914 N.E.2d 365, 885 N.Y.S.2d 716 (2009)
(Table).

However, under the NYCHRL, "plaintiff still bears the

burden of showing that the conduct is caused by a discriminatory
motive."

Mihalik v. Credit Agricole Cheuvreux N. Am., Inc.,

supra, 715 F.3d at 110.

Thus, "the plaintiff need only show that

her employer treated her less well, at least in part for a
discriminatory reason.

The employer may present evidence of its

legitimate, non-discriminatory motives to show the conduct was
not caused by discrimination, but it is entitled to summary
judgment on this basis only if the record established as a matter

17

of law that discrimination play[ed] no role in its actions."
Mihalik v. Credit Agricole Cheuvreux North America, Inc., supra,
715 F.3d at 110 n.8 (internal quotation marks, alteration and
citation omitted; emphasis in original); accord Gorman v.
Covidien, LLC, 13 Civ. 6486 (KPF), 2015 WL 7308659 at *12
(S.D.N.Y. Nov. 19, 2015) (Failla, D.J.); E.E.O.C. v. Bloomberg
L.P., 967 F. Supp. 2d 816, 836 (S.D.N.Y. 2013) (Preska, D.J.).
Applying this standard, courts have dismissed NYCHRL claims at
the summary judgment stage where the plaintiff failed to put
forth any evidence of discrimination beyond a difference in
treatment.

See, e.g., St. Jean v. United Parcel Serv. General

Serv. Co., 509 F. App'x 90, 91 (2d Cir. 2013) (summary order)
("[G]iven that plaintiff did not offer sufficient evidence in
rebuttal to raise an issue of fact that defendants' actions in
[applying a company policy to suspend plaintiff from work] were
false, contrived, or pretextual, we affirm [summary] judgment [on
plaintiff's NYCHRL claim]" (citations omitted)); Joseph v. Owens
& Minor Distrib., Inc., 5 F. Supp. 3d 295, 321 (E.D.N.Y. 2014)
("Plaintiff has not established a discrimination claim even under
the more liberal NYCHRL standard, because he has failed to show
that discrimination played any role in Defendant's decision to
terminate him." (emphasis in original)), aff'd, 594 F. App'x 29
(2d Cir. 2015) (summary order).

18

As discussed above, defendants have offered evidence of
a legitimate, non-discriminatory reason for the salary differences between plaintiff and the office managers outside of her
protected class.

Plaintiff has failed to offer any evidence to

contradict defendants' evidence or show that defendants acted
with a discriminatory motive.

Therefore, plaintiff's pay dis-

crimination claims under the NYCHRL are dismissed as well.

C.

National Origin Claim

As noted in the Opinion & Order, it is not clear
whether plaintiff intended to assert a discrimination claim based
on her national origin (Opinion & Order at 2 n.3, 4).

Because

defendants did not challenge plaintiff's allegation regarding
national origin discrimination in their motion for summary
judgment, I did not analyze the merits of such a claim in the
Opinion & Order (Opinion & Order at 2 n.3).
Defendants now urge that if reconsideration is granted
on plaintiff's pay discrimination claims, plaintiff's Complaint
should be dismissed in its entirety (Defs.' Mem. at 4-5 n.5).
Defendants assert that plaintiff could not have intended to
assert a claim of discrimination based on national origin because
she has not alleged any facts to support such a claim (Defs.'
Mem. at 4-5 n.5).

I shall construe defendants' argument to

19

assert that plaintiff has failed to state a claim of discrimination based on national origin and is subject to dismissal pursuant to Fed.R.Civ.P. 12(b)(6).
The Complaint is almost entirely devoid of any factual
allegations to support a claim of discrimination based on national origin.

In the section of the Complaint entitled plain-

tiff's "Eleventh Claim Pursuant to [the NYCHRL]," plaintiff
alleged that defendants engaged in "discriminatory conduct based
on Plaintiff's race, national origin and gender" (Complaint,
dated Oct. 7, 2009 (D.I. 1) ("Complaint"), ¶ 145).

Although

plaintiff included allegations in the Complaint regarding
"white," "minority" and "non-minority employees" (see Complaint
¶¶ 28, 51, 58-61), plaintiff did not identify her national
origin, nor did she allege an adverse action against her based on
her national origin or otherwise include any factual allegations
that would support a discrimination claim based on national
origin.

Plaintiff did not address her purported national origin

claim in her opposition to the motion for reconsideration (see
Letter from Plaintiff to the Undersigned, dated May 31, 2017;
Letter from Plaintiff to the Undersigned, dated May 8, 2017 (D.I.
116)).

Therefore, plaintiff has failed to state a claim of

discrimination based on her national origin.
However, in the interests of justice, I shall give

20

plaintiff one final opportunity to allege a discrimination claim
based on national origin.

"When a motion to dismiss is granted,

[i]t is the usual practice . . . to allow leave to replead."
Wynn v. N.Y.C. Hous. Auth., 14 Civ. 2818 (SAS), 2015 WL 4578684
at *2 (Scheindlin, D.J.), citing Schindler v. French, 232 F.
App'x 17, 19 (2d Cir. 2007) (summary order) (internal quotation
marks omitted; alteration and ellipses in original); accord Cruz
v. TD Bank, N.A., 742 F.3d 520, 523 (2d Cir. 2013) (per curiam);
Cortec Indus., Inc. v. Sum Holding, L.P., 949 F.2d 42, 50 (2d
Cir. 1991).

Because plaintiff is now proceeding pro se and

because leave to amend should be "freely" given "when justice so
requires," Fed.R.Civ.P. 15(a)(2), I shall allow plaintiff to
amend the Complaint.

If plaintiff wishes to proceed with a claim

of discrimination based on national origin, she is to file an
amended complaint stating such a claim within thirty days of this
Opinion and Order.

Plaintiff is reminded that any claim of

national origin discrimination must be supported by factual
allegations.

III. Conclusion

Accordingly, defendants' motion for reconsideration
(D.I. 105) is granted and, upon reconsideration, all of plaintiff's claims alleging race- and color-based pay discrimination

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against the Bank of New York Mellon and defendants Hoffman and
Lynch are dismissed.

Defendants' motion to dismiss the Complaint

in its entirety (D.I. 105) is granted, provided that, if plaintiff wishes to proceed with a claim of discrimination based on
national origin, she may file an amended complaint that includes
factual allegations sufficient to support such a claim within
thirty days of this Opinion and Order.

Dated:

New York, New York
September 19, 2017
SO ORDERED

2
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HENR~

United States Magistrate Judge

Copies mailed to:
Ms. Jacqueline Rogers
4121 Beach Channel Drive
Far Rockaway, New York 11691
Copies transmitted to:
Howard M. Rogatnick, Esq.
Christine B. Cesare, Esq.
Martha E. Joerger, Esq.
Bryan Cave LLP
1290 Avenue of Americas
New York, New York 10104

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