Betterson v. HSBC Bank, USA, N.A.

139 F.Supp.3d 572

Ellen BETTERSON, Plaintiff,

v.HSBC BANK, USA, N.A., Defendant.

No. 1:11–CV–615 EAW.

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

Signed Sept. 30, 2015.

Frank T. Housh, Buffalo, NY, for Plaintiff.

Robert C. Weissflach, Harter Secrest and Emery LLP, Buffalo, NY, for Defendant.

DECISION AND ORDER

ELIZABETH A. WOLFORD, District Judge.

Plaintiff Ellen Betterson ("Plaintiff"), a fifty-seven year old African–American woman (Dkt. 1 at ¶ 34; Dkt. 31–15 at 19:10–13), brings this action against defendant HSBC Bank, USA, N.A. ("Defendant" or "HSBC"), alleging employment discrimination based on gender, race, and age, and retaliation. (Dkt. 1). Presently before the Court is Defendant's motion for summary judgment. (Dkt. 31). For the following reasons, Defendant's motion is granted, and Plaintiff's complaint is dismissed in its entirety.

BACKGROUND

The factual background set forth in this Decision and Order is based upon the facts set forth in Defendant's Local Rule 56 Statement of Undisputed Material Facts, filed at Docket no. 31–7 (hereinafter "SMF"), to which Plaintiff failed to respond. (See Part I of this Decision and Order, infra ).

Plaintiff began working for Defendant on March 30, 1987, as an analyst/programmer in the Wholesale Systems Department in Buffalo, New York. (Id. at ¶ 13). Plaintiff progressed through various positions at HSBC and eventually joined the PCM Product Management Department in 1998. (Id. ). As a Product Manager, Plaintiff provided "sales, marketing and product support for ... PCM product lines and business strategies to maximize contribution to economic benefit." (Id. at ¶ 14). Plaintiff was also responsible for providing technical support for product strategies, sales readiness, and channel delivery. (Id. ).

Prior to October 2005, Plaintiff's supervisor was Jeanette Pilie. (Id. at ¶ 15). In October 2005, HSBC hired James Colassano to manage the Product Management Department, in order to "improve [the department's] proficiency and accountability, since the complexity and demands of its operations were increasing at the time." (Id. ). In 2007, Mr. Colassano implemented a "team leader approach department-wide," by which all workers reported to Team Leaders, instead of reporting to Mr. Colassano directly. (Id. at ¶ 17). Plaintiff was assigned to Team Leader Timothy Dray, and was subsequently reassigned to Team Leader Cheryl Gurz. (Id. ).

Plaintiff's Performance in the PCM Product Management Department led by Mr. Colassano

As part of the evaluation process for his employees, Mr. Colassano spoke with employees from other departments, observed his employees, and engaged directly with his employees. (Id. at ¶ 19). Mr. Colassano explained at his deposition that "[Plaintiff] ... came up pretty regularly as one of the weaker employees." (Id. at ¶ 20). Mr. Colassano also testified that Plaintiff did not respond promptly to inquiries from the Sales Department, had weak communication skills, and did not understand how HSBC's clients operated and used its products. (Id. at ¶¶ 20–21). Further, Mr. Colassano stated that Plaintiff "failed to take ownership of and accountability for her products," and blamed others for her problems. (Id. at ¶ 22). Mr. Colassano testified that he spoke with Plaintiff regarding her performance issues, including her failure to promptly respond to sales inquiries, in compliance with the department's Service Level Agreement. (Id. at ¶ 24).

Ms. Gurz, the Team Leader to whom Plaintiff reported, similarly testified at her deposition that Plaintiff failed to take ownership of her products. (Id. at 23).

Plaintiff's 2006 & 2007 Performance Evaluations

Defendant provides its employees with two performance evaluations per year, a mid-year or interim review and a final review. (Id. at ¶ 25). Employees are rated numerically, with a "1" being "exceptional," and a "5" being "poor." (Id. ).

In 2006, Plaintiff did not receive an interim review, but she did receive a final rating of "3," which means "strong," from Mr. Colassano. (Id. at ¶ 29). Plaintiff had received a "strong" rating for the two previous years from Ms. Pilie. (Id. ). Plaintiff did not complain about the "strong" rating and signed off on the final 2006 review on April 3, 2007. (Id. ).

In August 2007, for Plaintiff's mid-year review, Mr. Colassano rated Plaintiff on six performance objectives. Plaintiff received one "2" for "outstanding," and five ratings of "3," with an overall rating of "3." (Id. at ¶ 30). With respect to objective number two, Mr. Colassano noted that he had changed his rating from "4," or "inconsistent," to a "3," based on his discussion with Plaintiff and in anticipation of a strategic product review scheduled to take place after completion of the evaluation. (Id. ). Plaintiff signed off on these interim ratings on August 31, 2007. (Id. at ¶ 31).

Ms. Gurz prepared Plaintiff's final 2007 performance evaluation, and received input from Timothy Dray and Mr. Colassano regarding Plaintiff's performance. (Id. at ¶ 32). Ms. Gurz gave Plaintiff a rating of "4," or "inconsistent." (Id. ). Ms. Gurz noted that "the challenges [Plaintiff] faced in the first half of 2007 continued through the second half," including customer issues, failure to complete "key product initiatives," and a lack of business judgment. (Id. at ¶ 33). The comments on the 2007 final evaluation also provided that Plaintiff needed to improve her accountability, ownership, and closure of projects and issues. (Id. ).

Plaintiff's final ranking of "4" for 2007 made her ineligible for a bonus. (Id. at ¶ 34). Accordingly, Ms. Gurz input zeros into the "Management Incentive Plan" categories, which relate to bonuses and are distinct from the overall performance ratings, for Plaintiff's 2007 evaluation. (Id at ¶¶ 28, 34). Plaintiff testified that she was aware that her performance evaluation for 2007 was a "4." (Id. at ¶ 35). Plaintiff's performance deficiencies were discussed with her on January 10, 2008, and she refused to sign the performance appraisal. (Id. at 36).

Plaintiff's Request for HR Review of 2007 Final Rating

Plaintiff claimed that the "4" rating was "unfair," and requested that Human Resources review her 2007 final evaluation. (Id. at ¶ 37). Romina Dawson–Hall, the Vice President of Human Resources, investigated and determined that the "4" rating was justified. (Id. ). Plaintiff subsequently complained that Ms. Dawson–Hall was "too closely aligned to management," and therefore Natalie Marrero from Human Resources also reviewed the performance evaluation. (Id. at ¶ 38). Ms. Marrero found that a "4" rating was justified. (Id. ). Plaintiff's 2007 performance evaluation was closed on February 29, 2008, without her signature. (Id. at ¶ 39).

Plaintiff again asked Human Resources to review her 2007 evaluation after the review period was closed. (Id. ). Plaintiff traveled to New York City to meet with Mr. Colassano and Ms. Marrero on March 4, 2008. (Id. ). Plaintiff's supervisors responded that the 2007 evaluation was justified, and the matter was closed. (Id. ).

Plaintiff's March 2008 Complaint to "Tipline"

After the March 4, 2008 meeting, Plaintiff called Defendant's "Tipline" and complained that her performance evaluation was the result of race and age discrimination by Mr. Colassano and Ms. Gurz. (Id. at ¶ 40). Ms. Dawson–Hall discussed these allegations with Plaintiff on March 20, 2008. (Id. ). During that time, Plaintiff continued challenging her 2007 performance evaluation. (Id. at ¶ 41). Human Resources concluded that there was no basis on which to change Plaintiff's final rating for 2007, and the Tipline complaint was closed for lack of supporting evidence. (Id. at ¶ 42).

March 2008 Verbal Warning/April 2008 Written Warning

Plaintiff's performance issues continued into early 2008. (Id. at 44). Ms. Gurz drafted an "Employee Interim Job Discussion" regarding Plaintiff's performance issues, which was presented to Plaintiff as a verbal warning on March 6, 2008. (Id. ). The verbal warning addressed Plaintiff's responsiveness, outstanding requests, and deficiencies in communication. (Id. at ¶ 45). Plaintiff testified that she understood that the verbal warning criticized her performance, and made no reference to her race or age. (Id. at ¶ 46). Plaintiff's performance did not improve, and Ms. Gurz gave Plaintiff an "Initial Written Warning" in early April 2008, which focused on Plaintiff's responsiveness and communication deficiencies. (Id. at ¶ 47).

Plaintiff Transfers to Accounts Payable Department

During the March 20, 2008 meeting, Ms. Dawson–Hall informed Plaintiff that she would support Plaintiff posting for other positions, despite the fact that Defendant's job-posting policy required at least a "3" rating to post for a new position. (Id. at ¶¶ 48–49). Mr. Colassano's manager, Raymond W. Fattell, Senior Vice President, Product Management and Development, approved the exception to the job-posting policy for Plaintiff. (Id. at ¶ 49). Plaintiff voluntarily posted for another position and transferred to the Accounts Payable Department, effective April 14, 2008. (Id. at ¶ 50). The Product Management Department did not immediately replace Plaintiff; rather, other employees took over her responsibilities. (Id. at ¶ 52). On November 9, 2009, Defendant hired Robert Cleary to replace Plaintiff and Timothy Dray, who had posted to another department in September 2008. (Id. at ¶ 53).

Peggy Kirk, the Vice President of the Accounts Payable Department, interviewed and hired Plaintiff in April 2008. (Id. at ¶ 51). Plaintiff claims that Ms. Kirk began discriminating against her immediately. (Id. ).

Plaintiff's position in the Accounts Payable Department was Accounting Operations Manager. (Id. at ¶ 54). This position was a lower job grade than her previous position as a Product Manager, but her pay and benefits remained the same. (Id. ). Neither Mr. Colassano nor Ms. Gurz had any contact with the Accounts Payable Department before or after Plaintiff's transfer, other than...