Dickinson v. Merrill Lynch, Pierce, Fenner & Smith

Page 247

431 F.Supp.2d 247

Theresa DICKINSON, Plaintiff v. MERRILL LYNCH, PIERCE, FENNER, & SMITH INC., Defendant.

Civil Action No. 3:04cv312(JCH).

United States District Court, D. Connecticut.

May 5, 2006.

Andrew Houlding, Rome McGuigan Sabanosh, Hartford, CT, for Plaintiff.

Gregory B. Nokes, Robert J. Gallo, II., McCarter & English-HTFD, Hartford, CT, for Defendant.

RULING ON MOTION FOR SUMMARY JUDGMENT [Doc. No. 27] AND MOTION TO STRIKE EXHIBIT [Doc. No. 42]

HALL, District Judge.

I. INTRODUCTION

The plaintiff, Theresa Dickinson ("Dickinson"), is a former employee of the defendant, Merrill Lynch, Pierce, Fenner &amp Smith Inc. ("Merrill Lynch"). Dickinson brings the following claims against Merrill Lynch: sex discrimination in employment, in violation of Title VII of the United States Code, 42 U.S.C. § 2000e et. seq., (Count I) and the Connecticut Fair Employment Practices Act ("CFEPA"), Conn. Gen.Stat. § 46a60 (Count II); negligent infliction of emotional distress (Count III); negligent investigation (Count IV); defamation (Count V); breach of contract (Count VI); and breach of the covenant of good faith and fair dealing (Count VII). Merrill Lynch moves for summary judgment on all of these claims. Also pending is a motion by Dickinson to strike an exhibit that Merrill Lynch appended to its reply memorandum in support of summary judgment.

II. STANDARD OF REVIEW

In a motion for summary judgment, the burden lies on the moving party to establish that there are no genuine issues of material fact in dispute and that it is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 256, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); SCS Communications, Inc. v. Herrick Co., 360 F.3d 329, 338 (2d Cir.2004). The moving party may satisfy this burden "by showing — that is pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." PepsiCo, Inc. v. Coca-Cola Co., 315 F.3d 101, 105 (2d Cir.2002) (per curiam) (internal quotation marks and citations omitted); accord Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995).

A court must grant summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue as to any material fact...." Miner v. City of Glens Falls, 999 F.2d 655, 661 (2d Cir.1993) (internal quotation marks and citation omitted). A dispute regarding a material fact is genuine "`if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir.1992) (quoting Anderson, 477 U.S. at 248, 106 S.Ct. 2505), cert. denied, 506 U.S. 965, 113 S.Ct. 440, 121 L.Ed.2d 359 (1992). After discovery, if the nonmoving party "has failed to make a sufficient showing on an essential element of [its] case with respect to which [it] has the burden of proof," then summary judgment is appropriate. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).

The court resolves "all ambiguities and draw[s] all inferences in favor of the nonmoving party in order to determine how a reasonable jury would decide." Aldrich, 963 F.2d at 523 (internal citation omitted). Thus, "`o[n]ly when reasonable minds could not differ as to the import of the evidence is summary judgment proper.'" Id. (quoting Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991), cert. denied, 502 U.S. 849, 112 S.Ct. 152, 116 L.Ed.2d 117 (1991)); see also Suburban Propane v. Proctor Gas, Inc., 953 F.2d 780, 788 (2d Cir.1992) ("Viewing the evidence in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is inappropriate."). "`If, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper.'" Security Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 82-83 (2d Cir.2004) (quoting Gummo v. Village of Depot), 75 F.3d 98, 107 (2(1 Cir.1996)).

When a motion for summary judgment is supported by sworn affidavits or other documentary evidence permitted by Rule 56, the nonmoving party "may not rest upon the mere allegations or denials of the [nonmoving] party's pleading." Fed. R.Civ.P. 56(e); Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir.1995). Rather, "the [nonmoving] party's response, by affidavits or as otherwise provided in [Rule 56], must set forth specific facts showing that there is a genuine issue for trial" in order to avoid summary judgment. Id. "The non-movant cannot escape summary judgment merely by vaguely asserting the existence of some unspecified disputed material facts, or defeat the motion through mere speculation or conjecture." Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir. 1990) (internal quotations and citations omitted). Similarly, a party may not rely on conclusory statements or an argument that the affidavits in support of the motion for summary judgment are not credible. Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir.1993).

III. FACTS¹

Merrill Lynch hired Dickinson as a Financial Advisor ("FA") in November 2000. At the time of her hire, she signed a contract. Paragraph seven of the contract read, "NOTHING HEREIN IS A PROMISE OF EMPLOYMENT FOR A FIXED TERM. MERRILL LYNCH MAY TERMINATE MY EMPLOYMENT FOR ANY REASON OR FOR NO REASON, JUST AS I MAY RESIGN AT ANY TIME." Def.'s Mem. Supp. Mot. Summ. J., Ex. 1 [Doc. No. 27-6] (emphasis in original). The same contract also contained some provisions that would come into effect if and only if Dickinson was to resign or be terminated for cause.

For most of her employment with Merrill Lynch, Dickinson worked in the company's Middletown, Connecticut branch office. She began work in Merrill Lynch's two-year salaried training program. That office was supervised by Joseph Stango, who held the title of Financial Advisor in Charge ("FAIC"). Lise Grondin, a Client Associate ("CA") in the Middletown office, was assigned to assist both Stango and Dickinson, although she primarily worked with Stango.

Stango's office was next to Dickinson's. During the time they worked together in Middletown, Stango would bang on the wall between the two offices when he wanted to get Dickinson's attention. Dickinson Dep. at 89-90, Plf.'s L.R.Civ.P. 56(a)2 Statement Appx. [hereinafter "Plf.'s R. 56(a)2 Appx."] [Doc. No. 35-1]; see also Stango Dep. at 82, Plf.'s R.56(a)2 Appx. [Doc. No. 34-5]. He frequently invited Dickinson to go out for food or drinks after work and would rub her back. Id. at 90. She told him not to touch her. Id.

In August 2002, Dickinson went to see Fran Adams, Managing Director for Merrill Lynch's New Haven Complex, to whom she complained about Stango's behavior toward her and that Stango was treating her as an assistant. Adams responded that Dickinson, as a participant in the two-year training program, had to deal with Stango's behavior. Dickinson Dep. at 184, Plf.'s R. 56(a)2 Appx. [Doc. No 35-3²]. Stango recalls that Adams spoke to him about a complaint by Dickinson. Stango Dep. at 83, Plf.'s R. 56(a)2 Appx. [Doc. No. 34-5].

Pat Lyman, a female employee with twenty-seven years of experience in the industry, asked to mentor Dickinson, but Stango refused to permit this arrangement. Dickinson Dep. at 54, 58, Plf.'s R. 56(a)2 Appx. [Doc. No 35-3]. He told Dickinson that he wanted her to work with a male and assigned her to work with a male who had just finished the training program and who was too busy to provide Dickinson with the assistance she requested. Id. at 56, 58.

Dickinson was the first person in the Middletown office to report to work and would sometimes work late in the evenings. Id. at 63, 78-79. Stango would come in later and was frequently out of the office. Id. at 89. Stango also sometimes took credit for Dickinson's presentations. Id. at 79.

The largest and most significant account that Dickinson serviced during her time at Merrill Lynch was that of Save the Children Federation ("STC"). STC did not frequently withdraw funds from its account. Id. at 112 (recalling being made aware of two withdrawals). Following September 11, 2001, when STC did transfer money out of its account, it did so by wire transfer. Id. at 111-12. The institutional side of Merrill Lynch handled these fund transfers, and Dickinson became aware of them only after the fact. Id. Stango repeatedly asked Dickinson to share the job of servicing the STC account with him, but she did not do so. See id. at 95.

Merrill Lynch's Middletown office closed in 2002, and Dickinson was transferred to the company's Madison, Connecticut office. The Madison office was entirely staffed by males until Dickinson's transfer. In a preliminary interview, Elliot Popper, the male manager of the Madison office, asked Dickinson if she had any children and commented that he could not look her in the face because she "had the bluest eyes he'd ever seen." Id. at 98-100. Plaintiff was assigned to an office space that had previously been used as a storage space, which she had to clean out before she could use. Upon her first full day of work in Madison, December 3, 2002, Dickinson's computer would not connect to the company network, and she had no access to email or her clients' accounts. Id. at 106-07.

On the same day, December 3, Grondin told Dickinson by phone that Grondin had spoken with STC and that "they were going to transfer some money" out of their Merrill Lynch account. Dickinson Dep. at 111, Plf.'s R. 56(a)2 Appx. [Doc. No. 35-2]. Dickinson replied by saying, "that's done on the institutional side, there's nothing we have to do." Id. Dickinson also told Grondin that...