Kassman v. KPMG LLP

• Decision Date: 07 February 2013
• Docket Number: No. 11 Civ. 3743(JMF).,11 Civ. 3743(JMF).
• Citation: 925 F.Supp.2d 453
• Parties: Donna KASSMAN et al., individually and on behalf of a class of similarly situated female employees, Plaintiffs, v. KPMG LLP, Defendant.
• Court: U.S. District Court — Southern District of New York

925 F.Supp.2d 453

Donna KASSMAN et al., individually and on behalf of a class of similarly situated female employees, Plaintiffs,

v.KPMG LLP, Defendant.

No. 11 Civ. 3743(JMF).

United States District Court,

S.D. New York.

Feb. 7, 2013.

Janette Lynn Wipper, Sanford Wittels & Heisler, LLP, San Francisco, CA, Katherine M. Kimpel, David W. Sanford, Sanford, Wittels & Heisler, LLP, Washington, DC, Jeremy Heisler, Katherine E. Lamm, Katie Mueting, Siham Nurhussein, Deepika Bains, Sanford Heisler, LLP, New York, NY, for Plaintiffs.

Cheryl Marie Stanton, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., New York, NY, Colleen M. Kenney, John G. Levi, Sidley Austin LLP, Chicago, IL, Diane Marjorie Saunders, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Boston, MA, Peter O. Hughes, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Morristown, NJ, Steven W. Moore, Ogletree, Deakins, Nash, Smoak & Stewart, P.C., Denver, CO, Wendy M. Lazerson, Sidley Austin LLP, Palo Alto, CA, for Defendant.

OPINION AND ORDER

JESSE M. FURMAN, District Judge:

Plaintiffs, five women, have brought this action on behalf of themselves and a putative class of current and former female professional employees of Defendant KPMG LLP, the U.S. member firm of global accounting firm KPMG International, alleging various forms of employment discrimination. Defendant has moved to dismiss, strike, or transfer most of Plaintiffs' claims, including all of their class claims. For the reasons discussed below, Defendant's motions are GRANTED in part and DENIED in part.

BACKGROUND

The Third Amended Complaint (“TAC”) in this case is 120 pages long and contains over 550 paragraphs. For present purposes, it suffices to describe the five named plaintiffs—Donna Kassman, Linda O'Donnell, Sparkle Patterson, Jeanette Potter, and Ashwini Vasudeva—and to briefly summarize their claims. ¹

A. The Named Plaintiffs

Kassman began working at KPMG in 1993 and was steadily promoted until 1999, when she was made Senior Manager. (TAC ¶¶ 70–72). In 2003, while out on maternity leave, her pay was significantly cut without sufficient explanation and in spite of strong performance reviews. (TAC ¶¶ 74–78, 80–81). When Kassman returned from maternity leave in 2004, she began working on a flexible time schedule. (TAC ¶¶ 84, 106–7, 110). For the next six years, Kassman was repeatedly denied promotion to Managing Director despite her interest in such a promotion, a promise to promote her, and the promotion of less senior and equally or less qualified male colleagues. (TAC ¶¶ 88–91, 96). During this same period, she experienced baseless and gendered complaints from her colleagues that led to her removal from the promotion track. (TAC ¶¶ 92–97). For example, a fellow Senior Manager and one of his subordinates filed complaints about Kassman, claiming that she was “unapproachable” and “too direct,” and later criticized her “tone.” (TAC ¶¶ 92, 119). In April 2009, after these complaints began, Kassman filed discrimination complaints with KPMG's Office of Ethics and Compliance and Office of the General Counsel. (TAC ¶ 134). Shortly thereafter, Kassman began experiencing harassment and enhanced discrimination that led her to transfer, in October 2009, from the New York to the Stamford office. (TAC ¶ ¶ 118–31). Despite repeated complaints to KPMG human resources officials, nothing was done to remedy the discrimination and, in October 2010, Kassman felt compelled to resign. (TAC ¶¶ 132–50).

O'Donnell worked at KPMG from January 2003 until her termination in April 2009. (TAC ¶ 152). O'Donnell began her career in KPMG's Johannesburg, South Africa office, where she was promoted to Manager. (TAC ¶ 153). In September 2006, O'Donnell began a rotation in KPMG's Atlanta office, and transitioned to a permanent position there in February 2007. (TAC ¶¶ 154–55). As part of the rotation, KPMG demoted her to Senior Associate, ostensibly because all employees who transferred were demoted. (TAC ¶¶ 154, 160). Despite her demotion, O'Donnell continued performing Manager-level tasks. (TAC ¶¶ 164–70). In March 2008, O'Donnell informed her supervisors that she was pregnant, which resulted in a halt to her career progression. (TAC ¶ 173). She began receiving negative performance reviews for the first time and was denied a promotion to Manager, despite having held that title in South Africa, while others with less experience were promoted. (TAC ¶¶ 174–78). Moreover, after learning that O'Donnell was pregnant, her supervisor made several negative comments to her about pregnant women's abilities and a woman's role in an office and a family. (TAC ¶¶ 185–86). For example, he told her that he thought pregnant women were incapable of doing their jobs; that he did not see how, as a working mother, one could “tend to a child and work at KPMG at the same time”; and that O'Donnell did not need to work when her husband was the “breadwinner” in the family. (TAC ¶ 185–86). On the day O'Donnell returned from maternity leave, KPMG fired her, allegedly because of the economy. (TAC ¶ 193).

Patterson worked as an Associate at KPMG from June 2007 until November 2010. (TAC ¶¶ 196, 218). Through 2009, Patterson received strong performance reviews and several performance awards. (TAC ¶¶ 199–204). Moreover, Patterson regularly performed tasks done by Senior Associates, but was never compensated or promoted, despite working as an Associate for longer than the standard two-year promotion timeframe. (TAC ¶¶ 207–08, 218–21). While Patterson was out on maternity leave, her supervisors asked her to reduce her role at KPMG. (TAC ¶ 224). When she returned from maternity leave, Patterson was intentionally intimidated and harassed by her supervisors and given negative performance reviews. (TAC ¶ 225). In addition, her largest client was taken away from her and, despite repeated requests, she was not provided with alternativework, resulting in a failure to meet her billable work goals. (TAC ¶¶ 232, 244). Patterson complained about the alleged discrimination and retaliation through various channels, but her complaints were ignored. (TAC ¶¶ 250–59). In November 2010, she felt compelled to resign because of the treatment, KPMG's failure to address her complaints, and a belief that there was no future for her at the company. (TAC ¶¶ 261–66).

Potter was employed at KPMG for eleven years, from July 1995 to July 2006. (TAC ¶ 268). Potter was hired as a Manager and received strong performance reviews during her entire tenure at KPMG. (TAC ¶¶ 269, 271–72). Despite those reviews, Potter had her pay frozen when similarly situated male colleagues did not. (TAC ¶¶ 280–87). Potter was also induced to decline attractive employment offers from other accounting firms with the promise of a promotion, but was ultimately passed over for that promotion in favor of less qualified male colleagues, allegedly because she did not engage in hostile and degrading social activities. (TAC ¶¶ 292–304). For example, in May 2002 Potter was removed from the track for a promotion she had been promised because she did not “schmooze” enough at Friday happy hours. (TAC ¶ 298). Potter declined to attend these happy hours for religious reasons and because male partners regularly engaged in overtly sexual conduct toward female employees at the events, including doing “body shots” (licking salt or sugar off of another person's body while consuming alcohol) off of female employees. (TAC ¶¶ 298–99). In July 2006, Potter felt compelled to resign from KPMG based on the lack of possible advancement, hostile and harassing comments from her supervisors, and the company's failure to address any of the discriminatory and harassing treatment she received. (TAC ¶¶ 306–12).

Vasudeva began her career at KPMG as an Intern, but was ultimately promoted to Senior Associate based on her strong performance, which was reflected in the positive reviews and numerous performance awards she received. (TAC ¶¶ 313–17). Vasudeva's career at KPMG stalled, however, when she informed her supervisors that she was pregnant and planned to take maternity leave. (TAC ¶ 328). Thereafter, she was passed over for promotions in favor of less qualified male employees, removed from her biggest client, reassigned to a client located far from her office, not invited to “client-building” events when male employees were, denied adequate support staff to meet her supervisors' expectations, began receiving negative performance reviews for irrelevant skills, and steered toward a flexible time schedule despite the fact that she was working full-time hours. (TAC ¶¶ 327–54). She was also subjected to sexual harassment and other degrading treatment by senior managers. (TAC ¶ 361). For example, in July 2009, one of Vasudeva's former supervisors suggested that, for women, the flavor of certain Indian food was similar to semen “in their mouth[s].” (TAC ¶ 361). In June 2009, Vasudeva complained about her treatment to senior management, human resources personnel, and ethics and compliance personnel. (TAC ¶¶ 355, 367). Nevertheless, KPMG failed to respond. (TAC ¶ 367). In September 2009, Vasudeva felt compelled to resign. (TAC ¶ 368).

B. Summary of Claims

The TAC includes nineteen counts of employment discrimination under various statutes and on behalf of different combinations of named and putative class plaintiffs. Specifically, it includes counts alleging: (1) individual and class claims for pay discrimination, promotion discrimination, and pregnancy and caregiving discriminationin violation of Title VII, the New York State Human Rights Law (“NYSHRL”), and the New York City Human Rights Law (“NYCHRL”) on behalf of Kassman, Patterson, and all members of the putative class (Counts I–III, V–VI, VII–X); (2) claims for the denial of equal pay for equal work under the federal and New York State Equal Pay Acts (“EPA” and “NYSEPA,” respectively) on behalf of Kassman, O'Donnell, Patterson, Vasudeva and similarly situated claimants with respect...