Tse v. Ubs Financial Services, Inc.

Decision Date19 February 2008
Docket NumberNo. 03 Civ. 6234(GEL).,03 Civ. 6234(GEL).
PartiesRoberta C. TSE, Plaintiff, v. UBS FINANCIAL SERVICES, INC., Defendant.
CourtU.S. District Court — Southern District of New York

John Beranbaum, Jason J. Rozger, and Kristen E. Finlon, Beranbaum Menken Ben-Asher & Bierman LLP, New York, NY, for plaintiff.

Kenneth J. Kelly, Mary Gambardella, Jennifer M. Horowitz, and Erin M. Carney, Epstein Becker & Green, P.C., New York, NY, for defendant.


GERARD E. LYNCH, District Judge.

Plaintiff Roberta C. Tse sued defendant UBS Financial Services, Inc. ("UBS"), alleging that UBS discriminated against her on the basis of her race and gender by placing her on a business development plan ("the Plan")—a kind of probationary restrictive duty—and eventually terminating her employment. After a nine-day trial, a jury returned a verdict for plaintiff on her gender discrimination claim insofar as it was predicated on her placement on the Plan, and rejected her remaining claims, including her claim of discriminatory termination. The jury awarded plaintiff $56,000 in emotional distress damages, $500,000 in economic damages, and $3,000,000 in punitive damages. Defendant now moves for judgment pursuant to Fed.R.Civ.P. 50(b), or, in the alternative, for a new trial or remittitur pursuant to Fed.R.Civ.P. 59. Defendant also moves for sanctions for plaintiff's alleged discovery abuses.

Defendant's motion for judgment as a matter of law will be denied in its entirety, and defendant's motion for a new trial will be granted in part; the Court will order a remittitur to $45,000 on the economic damages award, and to $300,000 on the punitive damages award. Defendant's motion for sanctions will be granted in part and denied in part.


A short recounting of the background facts and proceedings at trial will be provided here at the outset. Additional facts will be discussed in later portions of this opinion as they relate to the post-trial motions. To the extent relevant to defendant's motion for judgment as a matter of law, the primary factual narrative will describe events taking the evidence in the light most favorable to the plaintiff. Where relevant, however, in the interest of explaining the development of the record, or in connection with defendant's other motions, disputed issues of fact and conflicting evidence will be discussed.

In 1998, Roberta Tse, an Asian woman, was hired by UBS as a Financial Advisor ("FA") for UBS's Madison Avenue Branch. (Tr. 80, 85.) Tse was hired by David Zoll, the Branch Manager of the Madison Avenue Branch. Tse was moderately successful during her first few years at UBS, ranking neither at the top nor the bottom of the FAs on UBS's evaluation criteria. (Id. 121-23; see Pl. Ex. 47.) However, Tse's production took a downturn in 2001, due in part to the transfer of one of her largest accounts to a different UBS analyst and to the declining economy. (Tr. 696-97.) By early 2002, Tse was one of the lowest-producing FAs in the Madison Avenue Branch. (Pl. Ex. 47.)

In February 2002, Tse met with Jason Chandler, who had replaced Zoll in January 2001 as Branch Manager of the Madison Avenue Branch, to discuss the downward trend in Tse's production levels. (Tr. 137.) Also as a result of that downward trend, in March 2002, Chandler moved Tse from her office to a cubicle (id.), and in May 2002, Chandler placed Tse on a business development plan. (Id. 710.) According to Chandler, the general goal of a business development plan was to provide "coaching" to struggling FAs in order to "aid[ ] [an FA's] development with their own understanding of their business." (Id. 708.) In Tse's case, Chandler claimed that the Plan was specifically directed towards "increas[ing][her] assets and therefore increas[ing] new clients." (Id. 837.) Although several other FAs had also experienced a recent decline in their production levels, none of the other low-producing FAs—almost all of whom were male—was also placed on a business development plan at that time.

Chandler revised the Plan twice to reflect certain concerns expressed by Tse about its duration and terms. (Id. 534-35; see Pl. Ex. 12.) Under the final terms of the Plan, Tse was required (1) to be in the office between 9 a.m. and 5 p.m. on weekdays; and (2) to increase her assets under management by $6 million over the following six months, equivalent to $1 million a month. (Pl. Ex. 13.) The Plan thereby mandated a 40% increase in her client asset base over six months. (Tr. 159, 730.) The Plan stated that Tse could be subject to disciplinary action, up to and including termination, if she failed to meet its requirements. (Pl. Ex. 13.) If Tse failed to meet the requirements the plan provided, Chandler would "then set new goals to be accomplished over the subsequent 120-day period." (Id.)

Chandler met with Tse twice during the term of the Plan to discuss her job performance, and revised the Plan twice more to reflect her new goals. (Tr. 712.) On December 2, 2002, Chandler again met with Tse and told her that she had failed to meet the requirements of the Plan. (See id. 177, 560-61, 566; see also id. 234 (describing Tse's production in 2002 as "[l]ousy").) At that meeting, Chandler and Tse also discussed the internal grievance Tse filed with UBS's Human Resources Department on November 8, 2002, regarding her placement on the Plan, as well as the discrimination claim she had filed against UBS with the New York State Division of Human Rights on November 13, 2002. (Id. 206-07.) The meeting was adjourned for a day to give Chandler the opportunity to "think about [the] things that [Tse and Chandler] discussed" at the meeting. (Id. 879.)

Tse and Chandler met again on December 3. (Id. 563.) At the December 3 meeting, Chandler and Tse again discussed her pending discrimination claim. (Id.) Chandler also asked Tse what her plan was with respect to her future at UBS. (Id. 880.) Tse replied that she still "wanted to be successful," and that she wanted to continue working at UBS and improve her performance, despite her failure to meet the Plan's goals. (Id. 882; see id. 887 (testifying that plaintiff told Chandler at the December 3 meeting that she "wanted to have a go at" her job); Pl. Ex. 68.) In response, Chandler told Tse to continue the job "as best as" she could and to continue to "serve [her] clients." (Tr. 219.) No disciplinary action was taken against Tse at that time, nor was Tse placed on another business development plan. (See id. 565 (testifying that Tse believed, and Chandler said, that Tse "could continue to do business as [she] had been doing" after the Plan expired).) However, on January 29, 2003, UBS sent Tse a termination letter. (Pl. Ex. 36.) The termination letter informed Tse that she had "been absent from work without excuse for 35 of the last 37 days," and stated the reason for her termination as job abandonment. (Id.)

On August 19, 2003, Tse initiated this action, contending that her placement on the Plan and her termination were motivated by a discriminatory animus on the basis of her race and gender, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e ("Title VII"), the New York State Human Rights Law, N.Y. Exec. Law §§ 296 et seq. ("SHRL"), and the New York City Human Rights Law, N.Y.C. Admin. Code §§ 8-107 et seq. ("CHRL"). On June 16, 2005, defendant moved for summary judgment on Tse's gender and race discrimination claims insofar as they were predicated on her placement on the Plan, contending that the Plan did not constitute an adverse employment action as a matter of law. On December 13, 2005, the Court denied that motion, finding that whether the Plan created a "materially significant disadvantage" to plaintiff's employment was a genuine issue of fact. (12/13/05 Tr. 5-6.)

Trial was held from April 2-13, 2007. At trial, plaintiff did not attempt to dispute that her measurable job performance was weak in comparison to the full range of other FAs. Rather, she compared her treatment primarily to that of other low-performing FAs who were male, and adduced evidence showing that, although the performance of several male FAs was also declining in early 2002, none of them was placed on a business development plan, nor did any of them suffer any disciplinary measure for their low production (See, e.g., Tr. 714-27.) Indeed, one low-producing male FA, Neal Cooper, was promoted despite consistently being ranked in the lowest quartile. (See id. 701-02; Pl. Ex. 47.) Chandler testified, however, that plaintiffs alleged comparators were not similarly situated to her for various reasons, including that, out of all the low-producing FAs, plaintiff had exhibited the most "severe decline" in production during the period that Chandler was Branch Manager. (Tr. 827.)

Another matter disputed at trial was whether Tse had voluntarily abandoned her job, or whether UBS had terminated her, either for legitimate or for discriminatory reasons. Although Tse's termination letter charged that she had not shown up for work on 35 out of the 37 days prior to her termination, Tse vigorously disputed that she abandoned her job, claiming that she had been in the office several times during that period (id. 1358), that when not in the office she had been working from home and meeting clients (id. 236), and that Chandler had planned to terminate her since the end of November 2002 but had not done so due to her pending discrimination claims (see Beranbaum Decl. Ex. 2). In response, Chandler testified that he never saw Tse again in the office after their December 3 meeting (Tr. 883), and defendant submitted testimony and documentary evidence indicating that Tse had not used the UBS computer system nor responded to attempts by UBS employees to contact her since...

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