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

• Decision Date: 26 April 2013
• Docket Number: Docket No. 11–3361–cv.
• Citation: 715 F.3d 102
• Parties: Renee MIHALIK, Plaintiff–Appellant, v. CREDIT AGRICOLE CHEUVREUX NORTH AMERICA, INCORPORATED, Defendant–Appellee.
• Court: U.S. Court of Appeals — Second Circuit

715 F.3d 102

Renee MIHALIK, Plaintiff–Appellant,

v.CREDIT AGRICOLE CHEUVREUX NORTH AMERICA, INCORPORATED, Defendant–Appellee.

Docket No. 11–3361–cv.

United States Court of Appeals,Second Circuit.

Argued: Sept. 28, 2012.

Decided: April 26, 2013.

Brian Heller, Schwartz & Perry, LLP, New York, NY, for Plaintiff–Appellant.

Barbara M. Roth (Dori Ann Hanswirth, on the brief), Hogan Lovells U.S. LLP, New York, NY, for Defendant–Appellee.

Before: CHIN, LOHIER, AND DRONEY, Circuit Judges.

CHIN, Circuit Judge:

In this case, plaintiff-appellant Renee Mihalik sued her former employer, defendant-appellee Credit Agricole Cheuvreux North America, Inc. (“Cheuvreux”), alleging that her supervisor ran the office like a “boys' club,” subjecting her to sexually suggestive comments and twice propositioning her for sex. She alleges that when she refused his sexual advances, he retaliated by berating her in front of other employees and ultimately firing her. Mihalik asserted claims of gender discrimination and retaliation under the New York City Human Rights Law (the “NYCHRL”), N.Y.C. Admin. Code § 8–107(1)(a), (7). The district court granted summary judgment to Cheuvreux, dismissing the complaint. We conclude the district court erred in its application of the NYCHRL. Because Mihalik presented sufficient evidence to show there are genuine disputes of material fact regarding both her claims, we vacate the district court's judgment and remand for trial.

STATEMENT OF THE CASE

A. The Facts

With all conflicts in the evidence resolved and all reasonable inferences drawn in Mihalik's favor, the facts may be summarized as follows:

1. Cheuvreux Hires Mihalik

In July 2007, Cheuvreux hired Mihalik as a Vice President of Alternative Execution Services, working under Chief Executive Officer Ian Peacock. This position required Mihalik to sell Cheuvreux's electronic equity trading services to institutional clients and cultivate them into regular customers. Cheuvreux hired Mihalik because she had contacts with several potential clients. Cheuvreux realized, however, that Mihalik was “coming from a standing start” and that these relationships were not “immediately transferable.” Therefore, Cheuvreux did not set “a hard target” for the revenue she had to generate.

2. Mihalik's Treatment

From the moment Mihalik started, Peacock paid “special attention” to her, asking her about her relationship status and whether she preferred older men or was a “cougar.” ¹ Immediately, Peacock asked Mihalik to make sure her travel arrangements for a business trip coincided with his so they could “enjoy traveling together” and “get to know each other.” He commented on her appearance often, telling her she looked “sexy” and that her red shoes meant she was “promiscuous.” When she wore certain outfits, he told her that she should “dress like that every day. You might get more clients in turn.” About two months after she started, he asked her if she “fanc[ied] dogging” and then, when she did not know what that was, described the sex act to which he was referring. In response, Mihalik would always tell Peacock that his behavior was “inappropriate and unbefitting a CEO.”

Peacock's boorish behavior was typical of the “boys['] club” atmosphere in the Cheuvreux office. The male employees regularly talked about visiting strip clubs and rated their female colleagues' appearances. Shortly after one of Mihalik's female co-workers had given birth, Peacock joked that he could not see that co-worker because her “breasts were in the way” and then told her, “[I]f this job doesn't work out, Scores [a New York strip club] is hiring.” Upon introducing Mihalik to a new male employee in January 2008, Peacock told her to “respect” the new employee because he was “male” and “more powerful” than she was.²

The male employees also frequently looked at pornography on their computers and Peacock showed Mihalik pornography “once or twice a month.” ³ In one instance in August 2007, Mihalik noticed Peacock laughing about something on his computer screen and, when she asked him what was so funny, he showed her an image of a man hanging from his genitals. He then emailed this image to other employees. Also that month, another Cheuvreux employee emailed Mihalik a video parody of the television series CSI, in which detectives used a black light to search for semen residue on a woman's mouth. ⁴

In December 2007, Peacock propositioned Mihalik twice, both times inviting her to spend the night with him at the “Cheuvreux flat.” ⁵ Mihalik rejected the overtures, telling Peacock “in no uncertain terms that [she] had no interest in a personal relationship with him” and that his conduct was “offensive and shameful.” After these rejections, Peacock stopped sitting next to Mihalik at the trading desk—where he had sat for the first several months of her employment—and began treating her differently. Among other things, Peacock began to exclude her from meetings, berate her in front of other employees, and criticize the quality of her work.

3. Mihalik Complains

Mihalik first complained about this behavior around the end of 2007. By then, however, the head of human resources had resigned, leaving Peacock responsible for most employment matters until a replacement was hired in March 2008. Thus, beginning in November 2007, Mihalik complained about Peacock's inappropriate sexual comments to David Zack, the head compliance officer, instead of reporting her concerns to human resources. Zack's only response was, “[Y]ou can't prove it, he's the CEO, and nobody is going to back you.”

In April 2008, Mihalik presented Zack with a draft email she intended to send to Peacock. In the draft email, Mihalik planned to confront Peacock about criticizing her in front of her co-workers, calling his behavior “very unprofessional” and his criticisms “inaccurate,” and asking him to calmly discuss these matters with her in private. After reviewing the email, Zack advised Mihalik that she should send it only if she wanted to get fired.

4. Mihalik's Performance Problems

Mihalik's performance was deficient in certain respects throughout her tenure. First, her monthly sales commissions were substantially below those of her peers. There were, however, mitigating circumstances. Only one of Mihalik's clients was actively trading through the sales desk during her tenure. While Mihalik had successfully signed several institutional clients, those clients had to finish negotiating their contracts with Cheuvreux before they could generate revenue and these negotiations took several months. Some of Mihalik's clients did not begin generating revenue for Cheuvreux until after her discharge. In contrast, most of her colleagues had established books of clients who regularly conducted business with Cheuvreux.

Second, Mihalik did not follow up on some sales leads in a timely manner. For example, in August 2007, a week after Peacock had provided Mihalik and a colleague with three sales leads, Mihalik emailed the colleague to ask if he knew “anything about these accounts Ian keeps asking us about.” At the end of November 2007, she sent a similar email to another colleague, asking about a sales lead that Peacock had originally given her in mid-October. And in January 2008, Mihalik apologized to an overseas colleague for not following up with a client as she had promised, explaining that she was delayed because her airline had lost her luggage containing her business notes.

Finally, Mihalik missed approximately thirty-five days of work during her nine months at Cheuvreux due to vacations, sickness, and personal reasons. Mihalik provided notice and obtained permission for all of her absences, however, and never exceeded her allotted number of vacation and sick days.

5. Mihalik is Discharged

In April 2008, after she failed to complete an assignment, Cheuvreux discharged Mihalik. Peacock had instructed Mihalik to conduct cold calls for seven days while he was away on business and to have twenty conversations with prospective clients each day. When Mihalik did not complete the assignment, Peacock scheduled a meeting with her. Although initially he had intended only to give her a performance warning, Peacock ultimately fired Mihalik after she asked him, in an allusion to his sexual propositions, “What's not working out [?] Me and you or me at the company?”

B. Proceedings Below

After her discharge, Mihalik filed a complaint against Cheuvreux in the Supreme Court of the State of New York, New York County, alleging gender discrimination and retaliation in violation of the NYCHRL, N.Y.C. Admin. Code § 8–107(1)(a), (7). Mihalik did not assert claims under federal or state law. Cheuvreux removed the case to the Southern District of New York on the basis of diversity of citizenship of the parties.⁶

After the close of discovery, Cheuvreux moved for summary judgment. In a memorandumand order filed July 29, 2011, the district court granted Cheuvreux's motion, relying on the traditional federal standards for discrimination and retaliation, and noting that it was “incorporat[ing] the special considerations” for NYCHRL claims. Mihalik v. Credit Agricole Cheuvreux N. Am., Inc., No. 09 Civ. 1251, 2011 WL 3586060, at *1, *5–6 (S.D.N.Y. July 29, 2011) (citing Williams v. N.Y.C. Hous. Auth., 61 A.D.3d 62, 872 N.Y.S.2d 27 (1st Dep't 2009)).

The district court analyzed Mihalik's gender discrimination claim using the federal quid pro quo and hostile work environment theories. See id. at *6–8. Considering her claim under the quid pro quo analysis, the district court concluded that Mihalik failed to show any connection between Peacock's sexual propositions and any tangible job detriment, including her discharge. See id. at *6–7. The district court held that, alternatively, Mihalik failed to show that the legitimate non-discriminatory reason articulated by Cheuvreux for her dismissal—her poor job performance—was pretextual. See id. at *8.

Next, the district court performed a...