Zakre v. Norddeutsche Landesbank Girozentrale

• Decision Date: 02 November 2005
• Docket Number: No. 03 Civ.0257 RWS.,03 Civ.0257 RWS.
• Citation: 396 F.Supp.2d 483
• Parties: Beverly ZAKRE, Plaintiff, v. NORDDEUTSCHE LANDESBANK GIROZENTRALE, Defendant.
• Court: U.S. District Court — Southern District of New York

396 F.Supp.2d 483

Beverly ZAKRE, Plaintiff, v. NORDDEUTSCHE LANDESBANK GIROZENTRALE, Defendant.

No. 03 Civ.0257 RWS.

United States District Court, S.D. New York.

November 2, 2005.

Vladeck, Waldman, Elias & Engelhard, P.C. by Anne L. Clark, Karen Cacace, New York City, for Plaintiff.

McDermott Will & Emery LLP, by Joel E. Cohen, New York City, for Defendant.

OPINION

SWEET, District Judge.

Defendant Norddeutsche Landesbank Girozentrale ("Nord/LB", the "Bank" or the "Defendant") has moved under Rule 56, Fed.R.Civ.P., to dismiss the complaint of plaintiff Beverly Zakre ("Zakre" or the "Plaintiff") alleging that Nord/LB discriminated and retaliated against her in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq., the New York State Human Rights Law, Executive Law § 296 et seq., and the Administrative Code of the City of New York § 8-107 et seq., and to strike certain allegations from the affidavits of Zakre, Sylvia Bier ("Bier"), Heidi Brown ("Brown"), Andrea Rudzwick ("Rudzwick"), Aimee Srebrik ("Srebrik") Maria Spinelli ("Spinelli"), and paragraphs of Plaintiff's Response to Defendants' Statement of Undisputed Facts. For the reasons set forth below, the motions to dismiss the complaint and to strike are denied.

Prior Proceedings

Zakre filed her complaint on January 13, 2003, alleging that the Bank discriminated against her because of her gender and retaliated against her because of her opposition to unlawful employment actions in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e-2000e-17; the New York State Human Rights Law, New York Executive Law §§ 296-301, and the Administrative Code of the City of New York §§ 8-107-8-109, asserting that Zakre was better qualified for the position of treasurer than the man who was appointed, that there was a pattern of discrimination against women, that decision-makers made discriminatory comments, and that the Bank has allowed the man it hired to abuse and demote Plaintiff because of her gender and because of her complaints of discrimination.

Discovery proceeded, and the instant motions were heard and marked fully submitted on March 16, 2005.

The Facts

The facts are set forth in the Defendant's Statement in Compliance with Rule 56.1 ("Def.56.1"), the Plaintiff's Statement of Material Facts Pursuant to Local Civil Rule 56.1 ("Pl.56.1"), and Defendant's Reply to Plaintiff's Statement of Purported Material Facts ("Def. R. 56.1"). The facts are not in material dispute except as noted below.

Nord/LB is a German bank incorporated as a public law institution in the State of Lower Saxony, one of the states of the Federal Republic of Germany, engaging in a wide range of commercial banking activities with branch offices in Germany and in the world's leading financial centers, including New York, Singapore and London. Nord/LB's headquarters are located in Hannover, Germany (the "Head Office").

According to Nord/LB, it provides equal employment opportunities to all of its employees in accordance with applicable federal, state, and local laws and maintains an equal employment opportunity policy that expressly prohibits discrimination based on, among other things, sex, race, color, religion, age, national origin and disability, a policy which is monitored and enforced by its human resources department.

Zakre began her employment at Nord/LB on or about February 15, 1991 as a vice president and the treasurer of the New York office. She had previously been employed by BfG Bank, which was acquired by Nord/LB in 1991. While working at BfG Bank from 1982 to 1991, Zakre was a trader in its treasury department. Prior to working at BfG Bank, Zakre was a trader in the treasury department of the Canadian Imperial Bank of Commerce from 1976 to 1982.

As treasurer at Nord/LB, Zakre was responsible for, among other things: (i) the maintenance and growth of Nord/LB's treasury activities; and (ii) the development of new business as it related to treasury activities. As treasurer, Zakre reported directly to Jens Westrick ("Westrick"), the executive vice president and general manager of the New York office. Zakre was hired as treasurer before Nord/LB hired Westrick as general manager of the New York branch.

As treasurer at Nord/LB, according to Zakre, she was in charge of all trading activities, which primarily included money markets and foreign exchange, and, as Nord/LB was new to the United States market, she was in charge of creating and developing the treasury department. Zakre maintains that she introduced Nord/LB to many new customers, which is denied by the Bank.

According to Zakre, during her time as treasurer she attempted to institute new products, such as futures, floating rate agreements, and swaps, but the Bank's systems were not prepared to handle these products, and the Head Office was slow to grant approval of these products. Zakre contends that she was also restricted in her ability to introduce new products by the capital constraints placed on Nord/LB's New York office by the Head Office. These contentions are denied by Nord/LB which maintains that Zakre lacked the ability to develop new customers and permits.

Rudzwick, assistant vice president and head of money markets for Nord/LB, reported to Zakre when she was treasurer and thought that Zakre did a very good job as treasurer. Liesenfeld, Nord/LB's controller, also thought that Zakre's performance as treasurer at Nord/LB was good.

In 1991, she was ranked "exceeds job requirements" in three performance evaluations, including "leadership qualities." In 1993, the summary portion of her performance evaluation stated that she "performed commendably" and was never ranked below "meets job requirements" in any category on any performance evaluation from 1991 through 1993.

Whether the performance appraisals of Zakre for 1991, 1992 and 1993 pointed out significant inadequacies in managing the treasury department is in dispute. Although Nord/LB maintains that Zakre lacked the ability, on her own initiative, to develop new customers and products for the treasury department and to increase the profitability of the treasury department by introducing new products, according to Zakre the performance appraisal stated that she "is committed to her work, is interested in expanding it and develops many fruitful initiatives." According to Zakre, Nord/LB's systems had to be updated before they could handle the new products that she suggested, and her ability to introduce new products was "frustrated by a lack of EDP-support as well as by slow responses from Head Office regarding new trading proposals and Head Office imposed limitations on Grundsatz and bank credit limits."

Whether Zakre asked Westrick for approval to introduce new products into the department is in dispute.

Beginning in 1994, according to Nord/LB, its Head Office sought to increase the profitability of the New York treasury department and because of Zakre's performance it demoted Zakre from treasurer and on June 3, 1994 hired Sean Bovenizer ("Bovenizer") as the treasurer of the New York office. Zakre consulted a lawyer concerning a claim of gender discrimination but did not pursue a claim because she thought such a claim would jeopardize her job. Her reasons for not pursuing a claim are disputed.

Zakre was the most senior woman in Nord/LB's New York office. Zakre thought that she was capable of maintaining the position of treasurer and that Westrick was uncomfortable with her managing an area because she was a woman. Others also noticed that Westrick did not treat Zakre in the same way he treated men and that he was uncomfortable dealing with women. Zakre did not tell anyone at Nord/LB that her demotion was due to her gender. Nord/LB has challenged Zakre's testimony for lack of specificity.

Brown, a human resources manager for Nord/LB at the time, thought that Zakre did a very good job as treasurer and was shocked when Zakre was demoted and Bovenizer was hired as the treasurer. It appeared to Brown that Westrick decided to hire Bovenizer and demote Zakre because he preferred dealing with a man. Nord/LB has challenged Brown's allegations as conclusory and without personal knowledge.

Bovenizer was previously employed as the treasurer of a large financial institution and managed its treasury department for six years, and Nord/LB believed he had the expertise and experience required for the growth of the treasury department. According to Nord/LB, shortly after Bovenizer commenced employment at the Bank, he took the lead in developing the Capital Markets practice in the New York office, and Bovenizer also reached the Bank's goals of implementing new products and expanding the treasury department. Whether Bovenizer or Zakre developed the Bank's Capital Markets practice is in dispute.

Nord/LB did not change Zakre's title as vice president, and placed Zakre in the role as the head of the Capital Markets area, a sub-group within the treasury department, nor did it decrease her salary. Zakre was given freedom to run the Capital Markets practice, although she thought she had been replaced because she was a woman. Zakre reported directly to Bovenizer who, until December 1996, reported directly to Westrick. Zakre's performance during the time she reported to Bovenizer is in dispute.

After December 1996, at the direction of the Head Office, oversight of the treasury activities of all of the Bank's international offices shifted from each branch office to the head of the Bank's treasury department located in the Head Office, although Westrick continued to be involved in the management of the treasury department.

Bovenizer began to report directly to Jurgen Kosters ("Kosters") in the Head Office. Kosters is a member of the Bank's board of management (the German equivalent of a board of directors in the United States), none of whom are women, and is responsible for the Bank's treasury departments throughout...