Rogers v. Bank of N.Y. Mellon

• Decision Date: 15 August 2016
• Docket Number: 09 Civ. 8551 (HBP)
• Parties: JACQUELINE ROGERS, Plaintiff, v. 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.
• Court: U.S. District Court — Southern District of New York

JACQUELINE ROGERS, Plaintiff, v. 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)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

August 15, 2016

REDACTED OPINION AND ORDER¹

TABLE OF CONTENTS

I. Introduction ............................................... 1

II. Facts ...................................................... 2

A. Overview .............................................. 2

B. Plaintiff's Employment with the Bank .......................................... 4

C. Unequal Terms and Conditions of Employment .............................. 6

D. Failure to Promote .................................... 8

E. Sexual Harassment and Hostile Work Environment .............................. 8

1. Photos and Videos of Plaintiff and Rumors and Comments Regarding These Materials ................ 8

2. Racially Offensive Materials On or Near Co-Workers' Desks ................................ 10

F. Allegedly Retaliatory Discipline Based on Plaintiff's Late Arrivals to Work ................................ 12

III. Analysis ................................................ 13

A. Legal Standards ...................................... 13

1. Summary Judgment ................................ 13

2. Overview of Discrimination Law .............................. 17

a. Title VII and NYSHRL ....................... 17

b. NYCHRL ..................................... 19

3. Salary-Related Disparate Treatment ............................. 22

a. Equal Pay Act .............................. 22b. Denial of Promotions and Career Development ..................... 22

i. Title VII and NYSHRL .................. 22

ii. NYCHRL ................................ 24

c. Disparate Treatment Based on Unequal Pay ....................... 25

i. Title VII and NYSHRL .................. 25

ii. NYCHRL ................................ 28

4. Hostile Work Environment ........................ 29

a. Title VII and NYSHRL ....................... 29

b. NYCHRL ...................................... 32

5. Retaliation ..................................... 34

a. Title VII and NYSHRL ....................... 34

b. NYCHRL ..................................... 37

B. Analysis of Plaintiff's Claims ................................... 39

1. Overview ........................................ 39

2. Unequal Terms and Conditions of Employment ........................ 40

a. Title VII and NYSHRL Claims ................ 40

b. Equal Pay Act Claim ........................ 45

c. NYCHRL Claim ............................... 46

d. Summary .................................... 47

3. Sexual Harassment and Hostile Work Environment ........................ 47a. Title VII and NYSHRL Claims ................ 47

b. NYCHRL Claim ............................... 54

4. Retaliation ..................................... 57

a. Title VII and NYSHRL Claims ................ 57

b. NYCHRL Claim ............................... 67

IV. Conclusion ................................................ 70

PITMAN, United States Magistrate Judge:

I. Introduction

In this employment discrimination action, plaintiff, an African-American woman and former employee of the Bank of New York Mellon (the "Bank"), alleges that she was discriminated against on the basis of her gender, race, color² and national origin and that she was the victim of retaliation as a result of her complaints about discrimination. Based on this alleged conduct, plaintiff asserts claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e et seq., the New York State Executive Law §§ 290 et seq., ("New York State Human Rights Law" or "NYSHRL"), the New York City Administrative Code §§ 8-107 et seq. ("New York City Human Rights Law" or "NYCHRL") and the Equal Pay Act, 29 U.S.C. § 206. Plaintiff claims that, as a result of defendants' discriminatory and retaliatory animus, she was denied promotions, career opportunities and equal pay,subjected to unequal conditions of employment, subjected to a hostile work environment and subjected to retaliatory discipline.

Defendants have moved for summary judgment dismissing plaintiff's claims, and plaintiff has opposed the motion. For the reasons set forth below, defendants' motion is granted in part and denied in part.³

II. Facts

A. Overview

Despite its being drafted by counsel, the complaint in this matter is far from clear; it contains several allegations that do not make sense and suggest that the complaint was copied from a pleading in another, unrelated case and not properly adapted. For example, at paragraph 50, the complaint alleges: "As a result of BONY/MELLON'S acquiescence to ROGERS harassment Complaint, Rogers was subject to name callings [sic]; i.e., "Crazy Black B----, She's Crazy, Did You See What She was Doing on her Couch." To acquiesce means to accept, to agree or to allow something to happen by remaining silent. Thus, the forego-ing paragraph appears to allege that as a result of the Bank's acceptance of or agreement with plaintiff's complaint, she was subjected to verbal harassment; I do not understand what plaintiff is trying to say in this paragraph.

Similarly, in paragraph 65 of the complaint, plaintiff alleges: "On or about March 2007, plaintiff was forced to go on Long Term Disability. Thereafter, on or about March 2009, BONY/MELLON permanently severed ROGERS['] employment relationship by applying and facilitating for her the granting of Permanent Disability benefits pursuant to Social Security Disability Insurance." I am not aware of any provision of the Social Security Act that permits a current or former employer to apply for Social Security Disability Insurance Benefits ("DIB") on behalf of a former employee. Moreover, in order to receive DIB an individual must be physically or mentally unable to engage in substantial gainful activity for a continuous period of at least twelve months. 42 U.S.C. § 423(d)(1)(A). Thus, if paragraph 65 is accurate, it would appear that any potential liability for back pay terminates no later than March 2009, when plaintiff was found to be physically or mentally unable to work.⁴

Finally, in paragraph 145 of the complaint, which alleges violations of the NYCHRL, plaintiff states:

Defendants['] discriminatory conduct based on Plaintiff's race, national origin and gender as well as in retaliation for her whistle blowing and complaints of discriminatory conduct by other members of the Department of Finance and in retaliation for her opposition to discrimination, constitutes discrimination in violation of the New York City Administrative Code § 8-107 et. seq. and the New York City Human Rights Law.

There are no allegations or evidence in this matter concerning "whistle blowing" or the Department of Finance -- a New York City agency.

The complaint appears to have been drafted on the cheap and it shows. Despite the murky nature of the complaint, the record demonstrates that plaintiff's claims arise out of allegedly unequal terms and conditions of employment including unequal pay and a failure to promote plaintiff, sexual harassment and an allegedly hostile work environment and allegedly retaliatory conduct. The record discloses the following facts.

B. Plaintiff's Employment with the Bank

Plaintiff began her employment with a predecessor to the Bank in 1988 (Pl. Response to Def. Rule 56.1 Statement, dated Jan. 28, 2015 ("Pl. Rule 56.1 Stmt.") ¶ 1). From 2002 through August 2006, plaintiff worked as a senior secretary and then asan office manager in the Technology Sector of the Bank under the supervision of Managing Director Darlane Hoffman (Pl. Rule 56.1 Stmt. ¶ 1; Complaint ¶¶ 10, 12, 21, 29).

Between 2002 and 2006, plaintiff made several complaints to her supervisor and others at the Bank about discrimination and harassment (Pl. Rule 56.1 Stmt. ¶ 2). Plaintiff summarized her complaints in a letter she sent to the attention of the "Non-Management Director" at the Bank on May 23, 2006 (Decl. of Howard M. Rogatnick in Supp. of Def. Motion for Summary Judgment, dated Dec. 5, 2014 ("Rogatnick Decl."), Ex. 17).⁵ These complaints are described in detail at pages 6-13, below. In August 2006, plaintiff had a "nervous breakdown" and went out on disability leave (Pl. Rule 56.1 Stmt. ¶¶ 1, 9; Deposition of Jacqueline Rogers (Ex. 3 to Rogatnick Decl.), at 159-60).⁶Plaintiff did not return to work after August 2006, and her employment with defendants officially ended in July 2009 (Pl. Rule 56.1 Stmt. ¶ 1).

C. Unequal Terms and Conditions of Employment

Plaintiff claims she was treated less favorably than her male and white counterparts in that she was placed on a longer "salary review cycle"⁷ and received a smaller salary (Pl. Rule 56.1 Stmt. ¶¶ 65-66; Rogatnick Decl., Ex. 25, 27). Plaintiff also claims that in December 2004, she was promoted from senior secretary to office manager, but did not receive a commensurate increase in salary (Pl. Rule 56.1 Stmt. ¶¶ 49-50; Pl. Decl. ¶ 6).

Defendants assert that plaintiff's salary and the decision to place her on an 18-month salary review cycle (rather than a 12-15 month review cycle), "were consistent with Bankpolicy, appropriate to Ms. Rogers' position at the Bank, and consistent with the treatment of others similarly situated" (Def. Mem. of Law in Supp. of Motion for Summary Judgment, dated Dec. 5, 2014 ("Def. Mem.") at 5, 21; see also Deposition of Rose Anne Bodnar (Ex. 4 to Rogatnick Decl.) at 104-05). Defendants have provided a chart that sets forth the salaries of several office managers for the 2002 - 2006 time period, including the white office managers that plaintiff claims were paid more than she (Rogatnick Decl., Ex. 29; see R...