Newsome v. Idb Capital Corp.

KIM NEWSOME and MITCHELL PROUX, Plaintiffs, v. IDB CAPITAL CORPORATION and IDB BANK d/b/a Israel Discount Bank of New York, Defendants.

13-CV-6576 (VEC)

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

March 28, 2016

MEMORANDUM OPINION AND ORDER

VALERIE CAPRONI, United States District Judge:

Plaintiffs Kim Newsome and Mitchell Proux are African-American, non-Jewish men who allege that the Defendants harassed, discriminated against, retaliated against, and ultimately fired them based on their race, color, ethnicity, gender, and religion, in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq.; 42 U.S.C. § 1981, as amended by the Civil Rights Act of 1991 ("Section 1981"); the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 290 et seq.; and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-101 et seq. Defendants have moved for summary judgment, separately as to each Plaintiff, on all claims. Because neither Plaintiff has established that he was discriminated or retaliated against, Defendants' motions are GRANTED as to all but Plaintiffs' claims under NYCHRL, which are dismissed for lack of subject matter jurisdiction. The case is DISMISSED.

BACKGROUND¹

Defendant IDB Bank d/b/a Israel Discount Bank of New York ("IDBNY" or the "Bank") is a banking institution headquartered in New York City.² Both Proux and Newsome had relatively short and unsuccessful tenures as employees of IDBNY.

I. Plaintiff Mitchell Proux

In August 2010, Proux was hired as Assistant Vice President in the Bank's Credit Administration Division. Defs. Proux 56.1 Stmt. ¶ 14; Proux 56.1 Resp. ¶ 14. During his first year of employment, Proux reported directly to Eugene Cartin, the former head of the Bank's Credit Administration Division. Proux 56.1 Resp. ¶ 18; Proux Dep. (Dkt. 55-4) at 55. In 2010, Proux received a satisfactory evaluation of "Meets Expectations" from Cartin. Defs. Proux 56.1 Stmt. ¶ 19; Proux 56.1 Resp. ¶ 19.³

Upon Cartin's termination in late Spring 2011 and while the Bank searched for his permanent replacement, Mary Beth Sweeney served as the interim head of the Credit Administration Division and directly supervised Proux. Defs. Proux 56.1 Stmt. ¶¶ 20-21; Proux 56.1 Resp. ¶¶ 20-21. Sweeney was apparently a tough manager and, during that time, Proux, as well as four other employees, complained about her to Human Resources. Defs. Proux 56.1Stmt. ¶ 22; Proux 56.1 Resp. ¶ 22; Proux Dep. 61-65. Proux's complaints were that Sweeney called him derogatory names including "jackass," "stupid," "idiot," "retard," and "loser." Defs. Proux 56.1 Stmt. ¶ 23; Proux 56.1 Resp. ¶ 23; Proux Dep. 63, 85-89.

The four other individuals who complained to Human Resources about Sweeney have diverse demographics: one is an Hispanic, Christian male; one is an Hispanic female; one is a white, Christian male; and one is a white, Jewish male. Defs. Proux 56.1 Stmt. ¶ 26; Proux 56.1 Resp. ¶ 26. It is undisputed that Sweeney allegedly treated (or mistreated) all five employees similarly. Defs. Proux 56.1 Stmt. ¶¶ 28-31; Proux 56.1 Resp. ¶¶ 28-31.⁴

Kathleen Bereswill became the new head of the Credit Administration Division in July 2011. Defs. Proux 56.1 Stmt. ¶ 32; Proux 56.1 Resp. ¶ 32. For approximately two months, Proux worked with Bereswill, who was not satisfied with the quality of his work. Defs. Proux 56.1 Stmt. ¶¶ 37-41; Bereswill Dep. (Dkt. 55-5) at 34-35; Bereswill Decl. (Dkt. 57) ¶¶ 8-10.

In fall 2011, IDBNY created a new "Centralized Reporting function." Defs. Proux 56.1 Stmt. ¶ 42; Proux 56.1 Resp. ¶ 42. At Sweeney's request, Proux was transferred to an analyst position in "Centralized Reporting" and, once again, reported directly to Sweeney. Defs. Proux 56.1 Stmt. ¶¶ 43, 45; Proux 56.1 Resp. ¶¶ 43, 45. Sweeney believed Proux possessed the skills and knowledge required of the position and that it would be "a good opportunity for him to be seen and get exposure to [] other areas" of the Bank. Defs. Proux 56.1 Stmt. ¶¶ 43-44; Sweeney Dep. 57-58; see also Bereswill Decl. Ex. A (Memorandum dated October 6, 2011 from Bereswill to Human Resources naming Proux to the Reporting Analyst position). Proux, on the other hand, was unhappy with the transfer and saw it as part of a scheme by Sweeney to retaliate against himfor his and his direct reports having complained about her to Human Resources. Proux Dep. 128:20-129:4.

Proux was in Centralized Reporting for less than one month. Defs. Proux 56.1 Stmt. ¶ 48; Proux 56.1 Resp. ¶ 48. According to Sweeney, Proux failed to complete projects on time, and she was dissatisfied with his work. Sweeney Dep. 68-71. Proux does not contest that was Sweeney's evaluation, but he excuses his own performance by complaining about his high workload and by accusing Sweeney of sabotaging his performance. Proux Dep. 126:24-128:2, 209:5-13.

Their relationship hit a low point on October 31, 2011, when, according to Proux, Sweeney referred to him as "stupid," and Proux responded by leaving the office, apparently before 5:00 p.m. and before the end of the work-day. Defs. Proux 56.1 Stmt. ¶¶ 50-54; Proux 56.1 Resp. ¶¶ 50-54; see also Stoler Proux Decl. Ex. L at 2 (Email from Sweeney to Proux time-stamped 4:52 p.m. asking "Where are you?").⁵ In a contemporaneous email to Sweeney, Proux wrote: "I did not leave . . . I was forced out by your lack of professionalism. You referred to me as "Stupid" on four occasions today in your office. I did not stay passed [sic] 5pm (as I normally do) because I don't feel like I have done anything to deserve further verbal abuse!" Stoler Proux Decl. Ex. L.⁶

Proux contends that he reported the incident to David Cohen, the Bank's Chief Operating Officer and Sweeney's boss, and advised him that Sweeney's conduct was unprofessional and discriminatory because "[t]here's no reason I should be being spoken to that way." Proux Dep.87:14-92:4; see also Defs. Proux 56.1 Stmt. ¶ 59.⁷ According to Proux, he also spoke to Human Resources after the incident and discussed "[d]iscrimination, specifically . . . that [Sweeney] is completely out of control, she's harassing me, she's abusive towards me and she's discriminating in many ways," although during his deposition he could not recall giving Human Resources any specific examples of discrimination. Proux Dep. 96:6-97:21.

Sweeney viewed Proux's action of leaving early on October 31 to be insubordination warranting immediate termination. Sweeney Dep. 71:24-74:18. She told Human Resources, "I have a serious problem with Mitchell Proux and we need to terminate him. He has been nothing but an absolute problem . . . I don't even want him to be able to work tomorrow." Stoler Proux Decl. Ex. M. Human Resources declined to terminate him and advised that more formal documentation was needed in order to take any personnel action. Sweeney Dep. 73:22-74:18; but see Stonitsch Dep. (Dkt. 63-8) at 119:12-14 (Human Resources employee cannot recall the reason Proux was not immediately terminated). Sweeney provided Human Resources fourteen specifications of Proux's performance deficiencies and cited input from two department heads. Stoler Proux Decl. Ex. N; see also Bereswill Decl. Ex. B (email communications in which Bereswill contributes to Sweeney's review of Proux); Defs. Proux 56.1 Stmt. ¶ 58; Proux 56.1 Resp. ¶ 58.

The Bank did not terminate Proux but did transfer him, at his request, back to the Credit Administration Division. Proux Dep. 132:11-133:4. Proux resumed his prior job title and pay, Defs. Proux 56.1 Stmt. ¶ 63; Bereswill Decl. ¶ 17; but see Proux 56.1 Resp. ¶ 63 (asserting that, in effect, he was demoted), and began to report to Eileen Healy, who had been recently promotedto Vice President in that department. Healy reported to Bereswill, who was the head of the department. Defs. Proux 56.1 Stmt. ¶¶ 64-66; Proux 56.1 Resp. ¶¶ 64-66.

Bereswill and Healy almost immediately began having issues with Proux's performance after his return to the Credit Administration Division. Bereswill Decl. ¶¶ 16-18. On November 22, 2011, Bereswill orally warned Proux regarding an issue with the tracking of credit and loan documents that had occurred during Proux's prior tenure in the Credit Administration Division (the "Verbal Warning"). Bereswill Decl. ¶¶ 18-21, Ex. C (Nov. 22, 2011 Memorandum to file regarding Verbal Warning to Proux); Proux Decl. ¶¶ 11-14.⁸ Proux contends that no other employee who worked on the project was reprimanded. Proux Opp'n at 15 (citing Proux Decl.¶¶ 6, 11-13).⁹

The same day he received the Verbal Warning, Proux met with Human Resources. At that meeting, Proux was provided feedback regarding his developmental needs, including the need to improve his ability to multitask. Human Resources also counselled him regarding his need to inform managers when he planned on being out of the office for extended periods. Stoler Proux Decl. Ex. O.

According to the Bank, despite counselling, Proux's performance did not improve, leading the Bank to give him a written warning (the "Written Warning") and to place him on a performance improvement plan ("PIP") in early December 2011. Defs. Proux 56.1 Stmt. ¶ 74; Proux 56.1 Resp. ¶ 74; Bereswill Decl. Ex D. The Bank identified two concerns with his performance: (1) Proux failed to follow instructions, Bereswill Decl. Ex. D; and (2) Proux made changes to loans in the Bank's Loan IQ system without following required protocol, id.; see also Defs. Proux 56.1 Stmt. ¶¶ 75-80. The PIP required Proux to meet with Healy (his manager) daily to discuss objectives for the day and to confirm with her any deviations from the agreed-upon objectives prior to deviating. Bereswill Decl. Ex. D. The PIP gave Proux 60 days to meet these requirements with the possibility of termination if he did not. Id.; Defs. Proux 56.1 Stmt. ¶ 82; Proux 56.1 Resp. ¶ 82.

According to the Bank, Proux's performance still did not improve, leading the Bank to give him a final written warning...