Petrisch v. HSBC Bank USA, Inc.

ANNA E. PETRISCH, Plaintiff,

v. HSBC BANK USA, INC., JOHNKOURKOUTIS, and MARLEN KATZ, Defendants.

07-CV-3303 (KAM) (JMA)

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

Dated: March 28, 2013

NOT FOR PUBLICATION

MEMORANDUM AND ORDER

MATSUMOTO, United States District Judge:

Plaintiff Anna E. Petrisch ("plaintiff") commenced this action against HSBC Bank USA, National Association ("HSBC" or "the bank"),¹ John Kourkoutis ("Kourkoutis"), and Marlen Katz ("Katz") (collectively, "defendants"), alleging employment discrimination on the basis of her age, national origin, and sex, 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 ("Section 1981"), the New York State Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL"). (See generally Complaint dated 7/15/2007 ("Compl.").)

Plaintiff alleges that defendants subjected her to a hostile work environment because of her age,² national origin, and sex and unlawfully retaliated against her for engaging in protected activity. Plaintiff further claims that defendants Kourkoutis and Katz are subject to individual liability under the NYSHRL and NYCHRL as employers and aiders/abettors of unlawful discriminatory conduct.³

Defendants now move for summary judgment pursuant to Federal Rule of Civil Procedure 56, seeking dismissal of plaintiff's Complaint in its entirety. (ECF No. 55, Defendants' Motion for Summary Judgment dated 1/20/2012 ("Defs.' Mot.").) For the reasons set forth below, defendants' motion is granted.

BACKGROUND

The following facts, taken from the parties' Rule 56.1 statements and the exhibits and deposition testimony cited and annexed to the parties' motion papers, are undisputed unless otherwise noted. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable toplaintiff. See Spiegel v. Schulmann, 604 F.3d 72, 77, 81 (2d Cir. 2010).

Plaintiff, a Hispanic female in her sixties, has several years of experience in the commercial banking industry and began working for HSBC in June 2005. (See Compl. ¶ 5; ECF No. 57, Defendants' Rule 56.1 Statement of Undisputed Material Facts ("Defs.' Rule 56.1 Stmt.") ¶ 1; ECF No. 46, Plaintiff's Response to Defendant's Rule 56.1 Statement ("Pl.'s Rule 56.1 Resp.") ¶ 1; ECF No. 58, Exh. 1, Deposition of Anna Petrisch on 1/8/2010 ("Petrisch Dep. - 1/8/10") at 14:1-15:4, 97:12-98:19; ECF No. 58, Exh. 3, Deposition of Anna Petrisch on February 24, 2011 ("Petrisch Dep. - 2/24/11") at 150:13-18.) The details of plaintiff's employment history at HSBC, the allegations giving rise to the instant action, and the relevant procedural history are set forth in further detail below.

I. Plaintiff's Employment at HSBC

A. Rego Park Branch Employment Interview

In 2005, plaintiff interviewed for an assistant sales manager position in the HSBC Rego Park Branch (the "Rego Park Branch"). (Defs.' Rule 56.1 Stmt. ¶ 2; Pl.'s Rule 56.1 Resp. ¶ 2; Petrisch Dep. - 1/8/10 at 14:23-15:9.) During that interview, Rego Park Branch Manager John Kourkoutis spoke with plaintiff about her job experience at other financial institutions and her fluency in both English and Spanish. (SeeECF No. 58, Exh. 4, Deposition of John Kourkoutis ("Kourkoutis Dep.") at 11:17-12:23.) Kourkoutis testified that Plaintiff's Spanish language skills were important because HSBC's clientele in Rego Park included many Spanish-speaking individuals. (Id. at 12:9-19.)

On June 6, 2005, shortly after her interview with Kourkoutis, plaintiff was hired as the assistant sales manager of the Rego Park Branch. (Defs.' Rule 56.1 Stmt. ¶¶ 1-2; Pl.'s Rule 56.1 Resp. ¶¶ 1-2.) In her capacity as assistant sales manager, plaintiff reported directly to Kourkoutis and was responsible for coordinating the branch's overall sales, organizing branch meetings, internal contests, and campaigns, and improving the branch's profitability and productivity. (See Defs.' Rule 56.1 Stmt. ¶ 3; Pl.'s Rule 56.1 Resp. ¶ 3; Kourkoutis Dep. at 11:9-16.)

B. September 2005 Action Plan

On September 23, 2005, three months after plaintiff was hired, Kourkoutis spoke with plaintiff regarding her work performance and thereafter placed her on an Action Plan. (See Defs.' Rule 56.1 Statement ¶ 4; Pl.'s Rule 56.1 Resp. ¶ 4; ECF No. 58, Exh. 6, E-mail of John Kourkoutis Memorializing September 2005 Action Plan ("September 2005 Action Plan").) In the September 2005 Action Plan, Kourkoutis outlined administrative and strategic goals for plaintiff's improvementas the new assistant sales manager of the Rego Park Branch and indicated that he "want[ed] to see [plaintiff] succeed." (September 2005 Action Plan.) Acknowledging plaintiff's "proficien[cy] in opening DDA & TDA accounts," Kourkoutis noted that plaintiff "must lead by example." (Id.) Plaintiff, however, alleges that Kourkoutis instituted the September 2005 Action Plan in retaliation to plaintiff's complaints about Kourkoutis' alleged discriminatory and fraudulent banking practices. (Pl.'s Rule 56.1 Resp. ¶ 4; Petrisch Dep. - 11/23/10 at 78:7-79:6.) Specifically, plaintiff testified that she "know[s]" she was placed on the September 2005 Action Plan "because [she] was a whistleblower." (Petrisch Dep. - 11/23/10 at 79:3-6.)

C. 2005 Executive Performance Management Review

On February 28, 2006, Kourkoutis issued plaintiff's 2005 Executive Performance Management Review ("2005 Performance Review"), giving plaintiff a "4" out of "5" overall assessment rating.⁴ (Defs.' Rule 56.1 Statement ¶ 5; Pl.'s Rule 56.1 Resp. ¶ 5; ECF. No. 58, Exh. 7, 2005 Performance Review at 7.) In the 2005 Performance Review, Kourkoutis acknowledged that plaintiff had "extensive experience as an Assistant Manager" but noted that plaintiff faced "difficulties adjusting to the way HSBCdoes business and has not acclimated to [HSBC's] systems and . . . procedures." (2005 Performance Review at 4.) Kourkoutis identified several other areas of needed improvement including plaintiff's communication skills, work efficiency, and use of HSBC's technology systems. (Id. at 5-6.) In particular, Kourkoutis explained that plaintiff often speeds through client interactions without understanding that "the demographic area . . . in Rego Park and client investment sophistication is different and higher than in Brooklyn," where plaintiff previously worked. (Id. at 4.) Further, Kourkoutis noted that plaintiff occasionally "speaks so quickly" that he must "ask her to repeat herself." (Id. at 6.) Plaintiff claims that this comment was targeted toward her accent and therefore evinces Kourkoutis' hostility towards her national origin. (Pl.'s Rule 56.1 Resp. ¶ 15.)

Despite plaintiff's weaknesses, Kourkoutis commended plaintiff's passion for her job, recognizing that "[s]he cares, and that is not something that you often come across in this business." (2005 Performance Review at 6 .) Finally, Kourkoutis described his plans to develop an action plan for plaintiff to allow her to "get back on track and open other options for her." (Id.) Plaintiff signed the 2005 Performance Review "under protest" on February 28, 2006 because of her disagreement with Kourkoutis' management style. (See Defs.' Rule 56.1 Statement¶ 6; Pl.'s Rule 56.1 Resp. ¶ 6; ECF No. 58, Exh. 8, Plaintiff's Signature of 2005 Performance Review; Petrisch Dep. - 11/23/2011 at 87:7-88:16.)

D. 2006 Performance Improvement Plan

On April 6, 2006, Kourkoutis determined that plaintiff's performance had "been below expectations," and placed plaintiff on a Performance Improvement Plan ("PIP") from April 7, 2006 until June 6, 2006 ("2006 Performance Improvement Plan" or "2006 PIP"). (Defs.' Rule 56.1 Statement ¶ 7; Pl.'s Rule 56.1 Resp. ¶ 7; ECF No. 60, Certification of John Kourkoutis in Support of Defendants' Summary Judgment Motion ("Kourkoutis Cert.") ¶ 3.) In that 2006 PIP, Kourkoutis stated that plaintiff would be required to achieve the goals listed in the plan during the two-month PIP period. (ECF No. 60, Exh. 1, 2006 PIP at 1.) Specifically, Kourkoutis indicated that plaintiff must know all HSBC policies and procedures to eliminate errors, improve her management and communication skills, and earn her professional sales licenses. (Id. at 2.) Kourkoutis explained that he enrolled plaintiff in training classes to improve her skills in management and sales. (See id.)

Plaintiff testified that Kourkoutis issued the poor performance evaluation in her 2006 Performance Improvement Plan to retaliate against plaintiff for complaining about purported fraudulent activity and because of her disability; however,plaintiff does not assert any claims for disability-based discrimination.⁵ (Petrisch Dep. - 2/24/11 at 142:4-22.) Plaintiff did not testify, however, that she made complaints about discrimination against her on account of her age, sex, national origin, or race. (See id.) Nor did plaintiff testify that defendants retaliated against her based on protected activities concerning those characteristics. (Id.)

On April 7, 2006, one day after being placed on the Performance Improvement Plan, plaintiff filed a formal "Ethics and Compliance" report with HSBC's employee tip line, alleging that Kourkoutis, Financial Advisor Mark Dray, and Premier Relationship Manager Marlen Katz fraudulently sold annuities to certain customers who thought they were buying Certificates of Deposit in order to increase their commissions. (Defs.' Rule 56.1 Statement ¶ 8; Pl.'s Rule 56.1 Resp. ¶ 8; ECF No. 59, Certification of Maria A. Malanga in Support of Defendant's Summary Judgment Motion ("Malanga Cert.") ¶ 5; ECF No. 59, Exh. 1, Ethics and Compliance Report at 1-2.) During her employee tip line call, plaintiff reported that she witnessed Kourkoutis, Katz, and Dray target older people, Hispanics, Asians, and foreigners with limited-English proficiency. (Ethics and Compliance Report at 1.) Plaintiff reported that the...