Britt v. Merrill Lynch & Co.

Full title: JACQUELINE BRITT, Plaintiff, v. MERRILL LYNCH & CO., INC., MERRILL LYNCH…

Court: UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

Date published: Aug 26, 2011

08 CV 5356 (GBD) (S.D.N.Y. Aug. 26, 2011)

Opinion

08 CV 5356 (GBD)

08-26-2011

JACQUELINE BRITT, Plaintiff, v. MERRILL LYNCH & CO., INC., MERRILL LYNCH, PIERCE, FENNER & SMITH, INC. and RICHARD JOYCE, Defendants.

GEORGE B. DANIELS, District Judge

MEMORANDUM DECISION AND ORDER

:

Plaintiff Jacqueline Britt brought this action against her former employer, Merrill Lynch & Co., Inc., and Merrill Lynch, Pierce, Fenner & Smith, Inc., (hereinafter, "Merrill" or the "Merrill Defendants"), as well as Richard Joyce, a former co-worker, arising from alleged discriminatory treatment she experienced as an equity sales trader in Merrill's New York City headquarters from June 2004 until February 2008. Plaintiff asserts various claims of unlawful sex discrimination against both Defendants in the form of disparate pay, retaliation, and hostile work environment under New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 296 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107 et seq. The Merrill Defendants and Individual Defendant Joyce separately moved for summary judgment pursuant to Fed. R. Civ. P. 56. Both motions for summary judgment are GRANTED.

BACKGROUND

A. PLAINTIFF'S HIRING

Plaintiff, a female, was employed as an equity sales trader at Bank of America from mid-2002 through June 2004. Ex. 1, Deposition of Plaintiff, at 26-37. In the first half of 2004, Plaintiff was recruited by various senior members of Merrill's equities trading group, including the Head of the New York Cash Equities Desk to join Merril. Ex. 1, at 37; Ex. A, Complaint ¶12. Merrill wanted Plaintiff to help "increase [Merrill's] visibility and production" with Wellington Management, a Merrill client with whom Plaintiff had an established relationship. Ex.1, at 40; Ex. 2, Deposition of Michael Stewart, at 49.

To induce Plaintiff to join the firm, Merrill offered - and Plaintiff ultimately accepted - a total compensation package of $1.5 million in 2004 and $1.2 million in 2005. Ex. A, ¶¶ 10, 13; Ex. D, Offer Letter Agreement, at P106. The Offer Letter Agreement provided that Plaintiff's annual salary during both years would be $175,000, and any additional compensation would be considered a guaranteed "bonus." Ex. 1, at 89-90; Ex. D, at P 106. In other words, in 2004, Plaintiff was paid $175,000 in salary and $1,325,000 in guaranteed bonus compensation. In 2005, Plaintiff was paid $175,000 in salary and $1,025,000 in guaranteed bonus compensation. The Agreement further provided that, after 2005, Merrill would have "sole discretion" to determine Plaintiff's bonus compensation - that is, the amount of Plaintiff's bonus was discretionary in 2006 and 2007. Ex. 1, at 673-674; Ex. D, at P 106.

Plaintiff signed the Agreement on June 2, 2004, and began her employment with Defendant Merrill that same month. Ex. A, ¶ 10. From the date of her employment until she resigned in February 2008, Plaintiff's title was Director, and her position was that of sales trader on the New York Cash Equities Sales Trading Desk (hereinafter, "the Desk"). Ex. 1, Plaintiff Dep., at 26-37.

B. PLAINTIFF'S POSITION AT MERRILL

Plaintiff's responsibilities with respect to her client accounts included providing research, soliciting orders, and providing assistance with equities trading. Ex.1, at 48-50; Ex. 2, at 15-16. Plaintiff also worked closely with Merrill's position traders, whose role it was to trade the stock for her client's accounts. Ex.1, at 82-83. Plaintiff was also responsible for assisting her co-workers on the desk in servicing their clients' accounts by periodically answering client calls when the traders were away from the Desk. Ex. 1, at 350-52. For example, she often answered calls from JP Morgan when her colleague, the lead sales trader on the account, was unavailable. Ex. 1, at 351-52

When she was hired in June 2004, Plaintiff was assigned to two accounts: Wellington Management and TIAA/CREF. Ex. 1, at 48-50. Plaintiff worked on both of those accounts until she resigned in February 2008. Ex. 1, at 50. Plaintiff was assigned to cover Columbus Circle, a Merrill client, in "2007 sometime."¹ Ex. 1, at 66. In August 2007, Plaintiff was also assigned co-coverage of the JP Morgan account. Ex. 1, at 50-51, 62; Warble Aff., ¶ 9.²

1 The assignment, according to Plaintiff, was granted following a direct request from a trader at Columbus Circle. Ex. 1, at 66.

2 There is a dispute between the parties over the reason that Plaintiff was not assigned to the JP Morgan account earlier.

C. PLAINTIFF'S PERFORMANCE AND BONUS COMPENSATION

1. Merrill's Standard for Measuring Performance and Determining Bonuses

All decisions regarding Plaintiff's bonus compensation after 2005 were made in early December. Ex. 2, at 27-29; Warble Aff., ¶ 3-7. Merrill's Board of Directors reviewed and approved those decisions later that month, and the amounts were communicated to the traders in early January. Ex. 4, Van der Ziel Dep., at 51-52; Warble Aff., ¶ 6-7.

The decision itself was highly discretionary, with various "data points" being utilized to "triangulate[] to where someone's comp was placed." Ex. 2, at 27-29. The data points included, but were not limited to: Merrill's Sales Trader Rankings;³ GATOR Reports of sales trader production credits;⁴ cross-evaluations;⁵ and individual performance evaluations.⁶ Ex. 2, at 26- 29; Ex. G, Plaintiff's 2006 Performance Review; Ex. K, Plaintiff's 2007 Performance Reviews. Plaintiff disagrees with the Merrill Defendants' characterization of the weight of each data point, contending that production credits, not performance, was the determinative factor. Compare Ex. 2, at 27-29, 47-48 (highlighting a differentiated, holistic approach that takes all relevant factors and attendant circumstances into account); Reply Affidavit of Michael Stewart in Support of Motion for Summary Judgment (stating that the individuals who determined Plaintiff's bonus were aware of, and took into account, Plaintiff's "generation of business" with the Wellington account when making 2006-2007 compensation decision); with, Sharoff Aff., ¶ 2-3 (noting that low scores on "cross-evaluations and/or employee evaluation ranking[s]" would not result in a trader being "paid down [because] . . . production reports were relied on almost exclusively for the purpose of justifying end of year compensation"). Plaintiff also contends that the decisions regarding her VICP bonus were being steered and negatively impacted by Defendant Joyce's comments. Ex. A, ¶ 17; see, e.g., Bierstein Aff., Ex. 7 (e-mail from Joyce to Breheney highlighting Plaintiff's excessive vacation days).

3 Sales traders were ranked by position traders semi-annually on a scale of 1-5, with 5 being the best. Ex. F, at ML 535; Ex. I, at ML 544. "The evaluators were asked to follow HR guideline[s] of the following [score] distribution: 5 (20%) . . . 4 (30%) . . . 3 (30%) . . . 2-1 (20%)." Ex. F, at ML 535; Ex. I, at ML 544. In ranking sales traders, position traders took the following data into account: what type of accounts the sales trader had; how much of the firm's resources and research were being consumed by a trader's accounts; cross-selling (assisting other traders within Merrill by giving them access to the sales traders' external client trades); and a trader's business relationships with colleagues, including their leadership abilities. Ex.2, at 26-29, 46. These rankings were compiled in Merrill's Sales Trader Ranking Reports. Exs. F, I.

4 GATOR Reports were used at Merrill to track the "production credits" of individual traders over a given time period. Sharoff Aff. ¶2, 6. "Production credit[s] . . . reflect [Merrill's] commission [from] a transaction." Bierstein Aff., Ex. 4, Confidential Deposition, at 42. GATOR reports aggregated data on production credits using individual trader identification numbers ("TID's"), and senior managers used those reports to aid in making compensation decisions. Bierstein Aff., Ex. 4, at 30-31, 86-88; Sharoff Aff., at ¶2-3, 6.

5 Cross evaluations are rankings generated by a group of peers whom sales traders selected specifically to rank them. Exs. E, H. Scores are on a scale of 1-10 with 1 being the best. Van der Ziel Aff. ¶ 5. The evaluations were designed to provide an "assessment of relative performance among peers" by comparing the rater's scoring of one employee with his scoring of other employees. Van der Ziel Aff., ¶ 4. Ratings categories included: "Strategic Thinking, Business Results, People Leadership, and Personal Effectiveness." See McDonald Aff., Exs. E, H.

6 Performance reviews were completed semi-annually by the trader's pod leader. See Exs. G, K; Ex. 2, Breheney Dep., at 11-13. Warble Aff., at ¶3-7. Performance reviews were similar to cross-evaluations in that they included the same four rating categories: "Strategic Thinking; Business Results; People Leadership; and Personal Effectiveness." See Exs. G, K. However, unlike cross evaluations, performance reviews also included, and focused on, explicit performance data. See Exs. G,

2. Plaintiff's Performance Assessments and Bonuses

2006 was the first year that Plaintiff was subject to discretionary bonus compensation. Ex. D, at P106. Plaintiff received $775,000 in bonus compensation in 2006, for total compensation of $950,000.⁷ Warble Aff., ¶ 4. Plaintiff thus experienced a decrease from her guaranteed bonus in 2005 of $250,000. That amount was recommended because of "[Plaintiff's] substandard performance in many areas, as reflected in her . . . performance review, cross evaluation, and sales trader rankings." Warble Aff., at ¶ 5. The following information served as potential data points for the determination of Plaintiff's VICP compensation in 2006: (1) Plaintiff's pod leader completed Plaintiff's performance evaluation, and on a scale of 1 to 5, with 5 being the best, rated her performance as a 2;⁸ (2) Plaintiff was ranked in the bottom 4^th percentile on her 2006 cross-evaluation; (3) Plaintiff was ranked in last place (62^nd out of 62 sales traders) in Merrill's 2006 Sales Trader Rankings Report; and (4) Plaintiff's total production credits for 2006 were $4.5 million across all of her clients. Ex. 1, at 349; Ex. E; Ex. F; Ex. G, at ML 00136; Ex. K, at ML 00482.

7 Glynn and Defendant Joyce, employees that Plaintiff has identified as similarly situated to her, both received a VICP bonus of $750,000 in 2006. Ex. 1, Plaintiff Dep., at 564-65; Ex. K, Merrill Production & Compensation Spreadsheets, at ML 00482-84. Plaintiff contends that the bonus compensation of "similarly situated" male employees at Merrill did not decrease the way Plaintiff's did. McDonald Aff., Ex. A. ¶ 23.

8 Plaintiff's low rating was explained by express concerns over Plaintiff's increased usage of "firm capital", her lack of understanding and usage of Merrill's technology, her low cross-evaluation and sales trader ranking scores, and her excessive time out of the office (41 days off in 2006). Ex. G, at ML 00135-38; Ex. T, Merrill's Vacation Policy (allowing 20 vacation days a year)). "Usage of capital" describes the situation where a customer wants to purchase a stock that Merrill does not own, so Merrill must use its own capital to buy the stock on the market in order to meet their clients' needs. Ex. 3, at 39-40. "Poor use of capital" occurs when a sales trader incurs a net loss on a transaction by buying the stock in the marketplace at price higher than the stock was sold for. Ex. 2, at 39-40.

In 2007, Plaintiff's VICP bonus was $375,000, for total compensation of $550,000.⁹ Warble Aff., ¶ 6-7. Plaintiff thus experienced a decrease from 2006 of $400,000. That amount was recommended because "[Plaintiff again] ranked at the bottom of the sales trader rankings, . . . exhibited many of the same performance deficiencies as she had in 2006 . . . which were particularly unacceptable for someone at her senior title . . . level of experience." Warble Aff., ¶ 6-7. The following information served as potential data points for the determination of Plaintiff's VICP compensation in 2007: (1) Plaintiff's performance review in 2007, which, on a scale of 1 to 5, with 5 being the highest, rated her performance as a 3;¹⁰ (2) Plaintiff ranked in the bottom 10^th percentile on her 2007 cross-evaluation, which was approximately equal to being in the bottom 4^th percent in 2006; (3) Plaintiff was tied for last place (59th out of 59 sales traders) in Merrill's 2007 Sales Trader Rankings Report; and (4) Plaintiff's total production credits for 2007 were $5.7 million across all of her clients. Ex. H, at ML 00027; Ex. I; Ex. J, at ML 00139; Ex. K, at ML 00482.

9 Glynn and Defendant Joyce received VICP bonuses of $750,000 and $675,000, respectively, in 2007. Ex. 1, at 564-65; Ex. K at ML 00482-84.

10 Plaintiff's pod leader highlighted many of the same deficiencies as were found in the 2006 review, including her low cross-evaluation and trader ranking scores, her continued violation of the firm's vacation policy (34 days off in 2007), Plaintiff's "ineffectiveness" with teammates and people leadership. Ex. J, at ML 00139-141; Ex. T (allowing 20 vacation days a year).

D. INTERACTIONS WITH DEFENDANT JOYCE

Defendant Joyce was an equity sales trader at Merrill at all relevant times. Declaration of Richard Joyce in Support of Motion for Summary Judgment, ¶ 4. Defendant Joyce held the title of Managing Director, which was directly above Plaintiff's title (i.e. Director) in the corporate hierarchy. Joyce Decl. ¶ 3; Ex. 1, at 26-37, 86-87; Ex. 2., at 12-13. Despite that difference, Plaintiff and Defendant Joyce performed the same role (i.e. equity sales trader), and worked together on the Desk from 2004 to 2008.¹¹ Joyce Decl. at ¶4; Ex. 1, at 271. Plaintiff did not report to Defendant Joyce, and Defendant Joyce did not directly supervise Plaintiff.¹² Ex. 1, at 269-72 (Plaintiff: "No I did not report to Mr. Joyce . . . I don't know why I thought [Joyce] was my supervisor"); Ex. 2, at 674.

11 Plaintiff and Joyce had known each other since they worked together at Morgan Stanley in the early 1990s. Ex. 1, at 119-120. Plaintiff sat next to Joyce from the fall of 2005 to the summer of 2006. Ex. 1, at 285-286, 656.

12 Plaintiff alleges that Joyce did in fact have some "supervisory responsibility" and "authority" over her by way of his title, his access to privileged information, and his influence with senior management. See e.g., Ex. 1, at 269-72, 551-59, 577-79; Ex. A, ¶ 17; see also generally, Affidavit of Andrea Bierstein in Opposition to Motion for Summary Judgment, Exs. 7, 9. Stuart Sharoff, a former co-worker of Plaintiff on the Desk, who now works with Plaintiff at LaBranche & Co., (McDonald Aff., Ex. 1, Plaintiff Dep. 63-64), supports Plaintiff's claim insofar as he alleges that Defendant Joyce had supervisory responsibility, but does not allege that Defendant Joyce had supervisory authority over Plaintiff. Affidavit of Stuart Sharoff in Opposition to Defendant's Motion for Summary Judgment, dated February 7, 2011, ¶ 6; Ex. 2, at 47-49; see also Sharoff Aff. ¶ 6 (alleging that Defendant Joyce was a pod leader in charge of sales traders); contra Ex 1, at 272 (Plaintiff affirmatively stated that Joyce was not a pod leader during her tenure at Merrill). Conversely, Defendants claim that Defendant Joyce was never the supervisor of Plaintiff, nor did he supervise any other employee; and that Joyce had no input into the decisions about any employee's - including the Plaintiff's - compensation, work assignments, or performance reviews. See, Merrill's 56.1 Statement, ¶ 16-18; Joyce's 56.1 Statement, ¶ 12-14.

Plaintiff contends that Defendant Joyce made comments¹³ and engaged in conduct that constituted sexual harassment from November 2005, when she was assigned to sit adjacent to him, to her resignation in February 2008. Plaintiff "general[ly]" asked her pod leader to speak with Joyce about his "comments" in March 2006. Ex. 1, at 278-80. Her pod leader did. Ex.1, at 279.¹⁴ Plaintiff next mentioned issues with Joyce in January 2008, infra. Ex. 1, at 286-287, 289-90, 294, 297, 302. Plaintiff claims that Joyce's harassment increased directly following her January 2008 meetings, including calling her names and cursing at her, but that she did not report this to anyone. FAC ¶¶ 18, 20; Ex. 1, at 535-38. Merrill launched an investigation into Joyce's conduct after Plaintiff commenced this litigation, which resulted in a memo to Joyce that stated in pertinent part that: "While most of [Plaintiff's] allegations were not corroborated, we have learned that you have engaged in excessive and sometimes inappropriate joking in the workplace. Such conduct may be in violation of the standards of conduct set forth in the firm's A Matter of Respect policy."¹⁵ Bierstein Aff., Ex. 10.

13 Plaintiff has identified the following conduct: (1) he tracked and publicly commented on Plaintiff's vacation time and her arrival and departure times from the office; (2) he made a point of tapping his watch around Plaintiff suggesting that her time at Merrill was limited; (3) he had knowledge of her performance evaluations and compensation. Pl.'s Exs. 7, 8; Sharoff Aff. ¶¶ 6, 9; Ex. 1, at 326-328, 518-519, 535.

14 Plaintiff was informed that Joyce "got mad at [her]", and that "[he] has had issues before." Ex. 1, at 279. (noting that the pod leader did not elaborate on what type of 'issues" Joyce had, and that Plaintiff never followed up with her pod leader regarding a possible resolution). Plaintiff thought that her request was handled well. Ex. 1, at 279-280.

15 Upon commencement of her employment at Merrill, Plaintiff acknowledged receipt of Defendant Merrills' personal conduct policy entitled "A Matter of Respect," and she subsequently completed training on this policy in December 2004. Ex. B, "A Matter of Respect"; Ex. C, List of Training Sessions Completed by Plaintiff; Ex. D, Offer Letter. The Matter of Respect policy stated that; "Employees have the responsibility to alert management to potentially harassing activities. They should report any instances to their manager, Human Resources or the Ethics Hotline immediately." Ex. B, at ML 00128. In September 2006, Plaintiff completed two additional training sessions on discrimination and harassment titled "Over The Line." Ex. C; see also Affidavit of Nancy Van Der Ziel in Support of Motion for Summary Judgment, at ¶ 2-3. The Over The Line program also included information on multiple avenues for reporting possible violations of the personal conduct policy. See Van der Ziel Aff.

E. PLAINTIFF'S CONTACT WITH HUMAN RESOURCES

1. March 2006

Plaintiff complained to Human Resources in March 2006 following comments made about her maternity leave.¹⁶ Ex. 1, at 357. Plaintiff informed Human Resources about "what was going on with [that employee] and the [JP Morgan] accounts." Ex. 1, at 360. The employee was assigned a "coach." Ex. 1, at 362-63. Plaintiff testified that she feels that Merrill took her complaint seriously, and that she had no further issues with that employee's conduct. Ex. 1, at 362-67.

16 Plaintiff returned from maternity leave, in or around the end of 2005. Ex. 1, Plaintiff Dep, at 349-352. Sharoff had an encounter with Plaintiff where he was angry with the Plaintiff because she had answered a call and entered a trade for Sharoff's JP Morgan account. Ex. 1, at 352. Sharoff commented that: "Merrill paid you all this money to come here and work, then you [go and take] maternity leave for three months; people resent you for that; there's a group mentality against you, and people on the trading desk do not want you to succeed." Ex. 1, at 353-56.

2. December 2007/January 2008

Plaintiff contacted Human Resources in December 2007 for information about how to add rebuttal comments in her annual performance review. Ex. 4, at 30-31. Plaintiff next contacted Human Resources to discuss her low scores and negative comments in her annual performance review in January 2008. Ex. 4., Van der Ziel Dep, at 10-32. Plaintiff complained about "what had been going on for the past years . . . with regard to [her] evaluations, the way people were treating [her], and with regard to Rick Joyce's comments." Ex. 1, at 486. Plaintiff alleges that the Human Resources manager responded by stating that "[t]hings are not going to change, and there have been complaints before about Rick." Ex. 1, at 486. The Human Resources manager denies making that statement and contends that "[she] was told specifically not to let [Plaintiff] leave" and that she believed it was "[her] role . . . to do everything [she] could to help get [Plaintiff's] performance back." Ex. 4, at 56.

Michael Stewart, the Head of Global Cash Equities, was asked to speak with Plaintiff personally. Ex. 2, at 82-83. Stewart met with Plaintiff in person on January 10, 2008, the same day that bonus compensation awards for 2007 were released. The conversation focused primarily on her bonus, and her belief that people did not like her. Ex. 1, at 511-15; Ex. 2, at 84-87. Plaintiff never complained that her compensation was decreased due to her gender. Ex. 1, at 503, 514.

Plaintiff alluded to the fact that inappropriate comments had been made by Defendant Joyce, but did not provide any specific information when asked for details. Ex. 1, at 517; Ex. 2, at 85-86. Plaintiff stated that she had been keeping a file on the history of the alleged discrimination, but refused to provide it. Ex. 2, at 86. Plaintiff was asked to give the file to Human Resources and she was explicitly informed that such behavior would not be tolerated, and that Steweart did not want Plaintiff to leave the Firm. See Ex. 4, at 55-56; Ex. 1, at 529-34; Ex. 2, at 83, 86--88. At the end of the conversation, Plaintiff was asked whether they would have met if she had received a higher bonus, and Plaintiff responded, "No." Ex. 2, at 86.

STANDARD OF REVIEW

Summary judgment is appropriate where the evidence, viewed in the light most favorable to the non-moving party, shows "that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Vacold, L.L.C. v. Cerami, 545 F.3d 114, 121 (2d Cir.2008). The burden of proof rests upon the moving party to show that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). A "material" fact is one that will affect the outcome of the suit under governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). For there to be a "genuine" issue of material fact, the evidence must be such "that a reasonable jury could return a verdict for the non-moving party." Id. In determining whether there is a genuine issue of material fact, the court is required to resolve all ambiguities and draw all inferences in favor of the non-moving party. See Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc., 391 F.3d 77, 83 (2d Cir.2004).

In employment discrimination cases, courts are particularly cautious about granting summary judgment where intent is at issue. See Gallo v. Prudential Residential Servs., Ltd. Pshp., 22 F.3d 1219, 1224 (2d Cir.1994); Meiri v. Dacon, 759 F.2d 989, 998 (2d Cir.1985). "[B]ecause writings directly supporting a claim of intentional discrimination are rarely, if ever, found among an employer's corporate papers, affidavits and depositions must be carefully scrutinized for circumstantial proof which, if believed, would show discrimination." Id. However, even in such cases, a "plaintiff must provide more than conclusory allegations of discrimination to defeat a motion for summary judgment," and "show more than some metaphysical doubt as to the material facts." Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 101 (2d Cir.2010) (internal citations and quotations omitted); " Schwapp v. Town of Avon, 118 F.3d 106 (2d Cir.1997) (citing Meiri, 759 F.2d at 998). A defendant will be entitled to summary judgment unless the plaintiff "can point to evidence that reasonably supports a finding of prohibited discrimination." Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir.2006) (citations and quotations omitted).

DISPARATE TREATMENT ¹⁷

17 Plaintiff alleges in her Amended Complaint that she suffered several adverse employment actions under her gender discrimination claims under the NYSHRL and NYCHRL. However, based upon Plaintiff's opposition papers and statements during the oral argument, this Court understands Plaintiff to be asserting a single claim of gender discrimination based upon disparate pay.

A. DEFENDANT MERRILL

Plaintiff contends that she suffered disparate treatment due to her sex when her bonus compensation was reduced in 2006 and again in 2007. While Plaintiff does not assert her disparate pay claim under Title VII,¹⁸ courts within the Second Circuit "review discrimination claims brought under the NYSHRL [] according to the same standards that . . . apply to Title VII discrimination claims." Pucino v. Verizon Communs., Inc., 618 F.3d 112, 117 (2d Cir. 2010) (citing Cruz v. Coach Stores, Inc., 202 F.3d 560, 565 n.1 (2d Cir. 2000)). At summary judgment, the legal standard under Title VII is as follows:

18 There is no evidence that Plaintiff ever filed an administrative charge with the EEOC or a state agency as required by Title VII. None of Plaintiff's discrimination claims are asserted under Title VII.

Under the burden-shifting framework set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must first make out a prima facie case of discrimination by showing: "1) that he belonged to a protected class; 2) that he was qualified for the position he held; 3) that he suffered an adverse employment action; and 4) that the adverse employment action occurred under circumstances giving rise to an inference of discriminatory intent." Feingold v. New York, 366 F.3d 138, 152 (2d Cir. 2004); see also McDonnell Douglas, 411 U.S. at 802. "If a plaintiff establishes a prima facie case, a presumption of discrimination is created and the burden of production shifts to the [employer] to articulate some legitimate, nondiscriminatory reason for the adverse employment action or termination." Farias v. Instructional Sys., 259 F.3d 91, 98 (2d Cir. 2001) (citations omitted); see also McDonnell Douglas, 411 U.S. at 802-03. If the employer does so, then a plaintiff "is given an opportunity to adduce admissible evidence that would be sufficient to permit a rational finder of fact to infer that the employer's proffered reason is pretext for an impermissible motivation." Howley v. Town of Stratford, 217 F.3d 141, 150 (2d Cir. 2000) (citations omitted); see also McDonnell Douglas, 411 U.S. at 804-05.

Turner v. NYU Hosps. Ctr., 2011 U.S. Dist. LEXIS 22900, at *21-22 (S.D.N.Y. Mar. 4, 2011); accord United States v. Brennan, 2011 U.S. App. LEXIS 9455, at *68-69 (2d Cir. May 5, 2011).

1. Plaintiff Has Failed to Establish A Prima Case

It is undisputed that Plaintiff has satisfied three of the required elements of a prima facie case for disparate pay. Sex is a protected class. See 42 U.S.C. § 2000e-2. Plaintiff was "qualified" to be an equity sales trader at Merrill, having had more than ten years of experience prior to her employment, and having been actively recruited by Merrill for that position. Finally, Plaintiff did in fact experience year-to-year decreases in her bonus compensation in 2006 and 2007. See Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006) (citing Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003); Galabya v. New York City Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000)).

However, Plaintiff has failed to establish a prima case because the record lacks any evidence demonstrating an inference of discrimination. "It is well-settled that an inference of discriminatory intent may be derived from a variety of circumstances, including, but not limited to: . . . the employer's criticism of the plaintiff's performance in terms degrading to the protected group; its invidious comments about others in the employee's protected group; or when the employer subjected an employee in a protected group to less favorable treatment than a similarly situated employee outside of that protected group." Leibowitz v. Cornell Univ., 584 F.3d 487, 502 (2d Cir. 2009) (quoting Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); other citations omitted). Here, none of the circumstances alleged by Plaintiff - namely, her being (a) compensated less than similarly situated male counterparts, (b) denied responsibility for additional client accounts, and (c) subjected to gender-based animus by Defendant Joyce - is supported by evidence that would allow a reasonable jury to infer that her bonus compensation in 2006 and 2007 was tainted by sex discrimination.

a. Similarly Situated Male Counterparts

"[W]here a plaintiff seeks to make out her prima facie case by pointing to the disparate treatment of a purportedly similarly situated employee, the plaintiff must show that she shared sufficient employment characteristics with the comparator so that they could be considered similarly situated." McGuiness v. Lincoln Half, 263 F.3d 49, 53 (2d Cir. 2001) (citing Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997)); accord Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003); Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000). The comparator "must have a situation sufficiently similar to plaintiff's" "in all material respects' -- not in all respects" in order "to support at least a minimal inference that the difference of treatment may be attributable to discrimination." Id. at 53-54 (citing Shumway, 118 F.3d at 64 (emphasis added)); Graham, 230 F.3d at 40 ("What constitutes 'all material respects . . . varies somewhat from case to case," but "there should be an 'objectively identifiable basis for comparability'" ) (citations omitted). This is "[o]rdinarily . . . a question of fact for the jury." Mandell, 316 F.3d at 379. "This rule is not absolute, however, and a court can properly grant summary judgment where it is clear that no reasonable jury could find the similarly situated prong met." Cine SK8, Inc. v. Town of Henrietta, 507 F.3d 778, 791 (2d Cir. 2007) (quoting Harlen Assocs. v. Inc. Vill. of Mineola, 273 F.3d 494, 499 n.2 (2d Cir. 2001)).

Plaintiff has identified three male employees as her comparators. However, no reasonable jury could find that a discriminatory inference exists with respect to their bonus compensation in 2006. Plaintiff's alleged comparators were not more favorably treated in 2006. Plaintiff was paid approximately $25,000 more in bonus compensation than two of the three. Another employee, on the other hand, received guaranteed bonus compensation in 2006, and thus was not subject to the discretionary bonus determinations. Ex. 2, Breheney Dep., at 9.

Nor could a reasonable jury find that a discriminatory inference exists with respect to bonus compensation in 2007. The record lacks evidence demonstrating that Plaintiff had a high degree of similarity to her alleged comparators in terms of characteristics relevant to bonus compensation. One supervised Plaintiff in 2007 as her pod leader, a managerial position at Merrill. Such a difference in seniority is relevant in the context of disparate compensation claims and may warrant dissimilar treatment. See Simpson v. Metro-North Commuter R.R., 2006 U.S. Dist. LEXIS 50331, at *24 (S.D.N.Y. July 20, 2006) ("[T]o be 'similarly situated,' employees must be substantially similar as to specific work duties, education, seniority, and performance history, all of which affect an employee's rate of pay."); cf. Hargett v. Nat'l Westminster Bank, 78 F.3d 836, 839 (2d Cir. 2006) ("Nothing in McDonnell precludes a finding that identical acts undertaken by persons of differing authority or in differing circumstances are in fact dissimilar."). Although "employees need not be of the exact same rank to be considered similarly situated," Plaintiff has not provided any evidence that seniority was irrelevant to or not a typical factor in the discretionary bonus compensation decisions. Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 109 n.7 (2d Cir. 2010) (citing Hargett v. Nat'l Westminster Bank, 78 F.3d 836, 839 (2d Cir. 2006)) (internal quotation marks omitted).

Defendant Joyce and another employee were sales traders who received higher bonus compensation than Plaintiff in 2007 - $750,000 and $675,000, respectively, versus $375,000 - and did not supervise her. See Ex. K. Whereas one experienced no change in his bonus compensation, Defendant Joyce experienced a decrease of $75,000, and Plaintiff experienced a decrease of $400,000. In light of the fact that the evidence indicates that bonus decisions were individualized, rather than lock-step, it is insufficient for Plaintiff to rely solely upon their alleged similar positions. The evidence indicates that they were not only more experienced sales traders,¹⁹ but also were more successful in 2007 as measured by data points available for consideration such as sales traders rankings,²⁰ performance evaluations,²¹ cross evaluations,²² and production credits.²³ Plaintiff has made no effort to demonstrate that she was similarly situated to either of these employees in 2007.

19 Glynn and Joyce began work as sales traders in 1984-85; Plaintiff began in 1993. Ex. 1, at 29; Ex. ?, Deposition of Glynn, at 8-9; Joyce Decl. ¶ 1.

20 One was ranked 3rd and Joyce 11th place out of 59; Plaintiff was tied for last place, 59-of-59. Ex. I.

21 Both employees received a 4-of-5 rating; Plaintiff received a 3-of-5. Exs. N, R, J.

22 One was in top 3rd decile, Joyce was in 5th; Plaintiff was in 10th decile. Exs. O, S, H.

23 One had $7.5 million, Joyce had $17.1 million; Plaintiff had $5.7 million. Ex. K, at ML 00482-84.

Plaintiff rests solely upon the argument that Defendant Joyce influenced her compensation by expressing gender-based animus towards her, which included tainting data points such as cross-evaluations, performance evaluations, and production credits that reflect discrimination against her. Plaintiff's argument is wholly unsupported by the record, and thus no reasonable jury could find in her favor on this issue.

"[U]nder the so-called 'cat's paw' theory of liability, 'the impermissible bias of a single individual can infect the entire group of collective decisionmakers,' . . . at least when the decisionmakers are overly deferential to the biased individual's recommendations." Baron v. N.Y. City Dep't of Educ., 2009 U.S. Dist. LEXIS 57515, at *18 (E.D.N.Y. 2009) (citing Fullard v. City of N.Y., 274 F. Supp. 2d 347, 357 (S.D.N.Y. 2003) and quoting Jamieson v. Poughkeepsie City Sch. Dist., 195 F. Supp. 2d 457, 474 (S.D.N.Y. 2002) (internal quotation omitted)); see Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d Cir. 1999) ("We recognize that the impermissible bias of a single individual at any stage of the promoting process may taint the ultimate employment decision in violation of Title VII. This is true even absent evidence of illegitimate bias on the part of the ultimate decision maker, so long as the individual shown to have the impermissible bias played a meaningful role in the promotion process."); Fullard, 274 F. Supp. 2d 347 ("[T]he employer will be liable where the decision-maker 'rubber stamps' the recommendation of [biased] subordinates; in such cases, we say that the decision-maker acts as a conduit of the subordinates' improper motive." (citations, internal quotation marks and citations omitted)); see also Hogan v. J.P. Morgan Chase Bank, 402 Fed. Appx. 590, 593 (2d Cir. 2010) (acknowledging theory).

Even if Plaintiff could establish that Defendant Joyce was motivated by a discriminatory animus against Plaintiff because of her sex,²⁴ Plaintiff has failed to produce any evidence that supports application of the "cat's paw" theory of liability. It is undisputed that others were the sole decision makers of Plaintiff's bonus compensation in 2006 and 2007. Ex. 1, at 674 (Plaintiff admitting that Defendant Joyce played no role); see also Stewart Aff. ¶ 5; Joyce Decl. ¶ 5. There is no evidence that Defendant Joyce made a recommendation regarding Plaintiff's bonus compensation, or had any input, whether by discussing the matter before the decision was made, completing or compiling the information reflected in the data points considered, or playing some other role in the process. The fact that Defendant Joyce was well-known, well-respected, and well-connected or that he had access to compensation and performance information about Plaintiff does not demonstrate that he played a role tantamount to input in the determination of Plaintiff's bonus compensation in 2006 and 2007. Ex. 1, at 326-329; Sharoff Aff. ¶ 10. Also completely unsupported by the record is Plaintiff's contention of an attenuated chain of control whereby others acted as conduit for Defendant Joyce, by using data points provided by evaluators who were influenced by Defendant Joyce's hostility to Plaintiff and who transmitted his bias. Plaintiff has set forth only self-serving, conclusory allegations, which are insufficient. Fletcher, 68 F.3d at 1456.

24 Plaintiff has failed to make such a showing.

Notably, Plaintiff's argument directly contradicts her deposition testimony, and is unsupported by the record. It is therefore an impermissible means of creating an issue of fact for trial.²⁵ Plaintiff testified during her deposition that the individuals who determined her bonus compensation in 2006 and 2007, did not discriminate against her. See Ex. 1, at 469,²⁶ 534²⁷; see also Ex. 1, at 5 6 9.²⁸ Plaintiff selected all 22 reviewers for her 2007 cross-evaluations, including 6 women, and she testified that none of the evaluators discriminated against her. Ex. 1, at 471-474; Ex. H, at ML 31. Plaintiff testified that the individual who completed her 2007 performance review and controlled the assignment of accounts, did not discriminate against her. Ex. 1, at 349; see also Ex. 1, at 569. Thus, Plaintiff's argument does not create a factual dispute as to whether her evaluations were affected by discriminatory animus.

25 Cf. Haves v. N. Y. City Dep't of Corr., 84 F.3d 614, 619 (2d Cir. 1996) ("[A] party may not create an issue of fact by submitting an affidavit in opposition to a summary judgment motion that, by omission or addition, contradicts the affiant's previous deposition testimony."); Perma Research & Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969) ("If a party who has been examined at length on deposition could raise an issue of fact simply by submitting an affidavit contradicting his own prior testimony, this would greatly diminish the utility of summary judgment as a procedure for screening out sham issues of fact.").

26

Q: Do you feel - do you believe that [Brennan Warble] discriminated against you on the basis of your gender?
A: No.

27

Q: Do you think that Michael Stewart discriminated against you?
A: No.

28

Q: Specifically - who at Merrill specifically do you believe . . . specifically discriminated against you other than Rick Joyce?
A: Henry Mulholland.
Q: Anyone else?
A: Stu Sharoff. And I don't recall. That's it.

b. Denial of Additional Client Accounts

Plaintiff contends that she was denied the assignment of accounts from which she could have increased her production credits, a data point considered for bonus compensation. However, no reasonable jury could infer a discriminatory animus based upon Plaintiff's sex from the record. Plaintiff primarily complains that she was not assigned the JP Morgan account when there was an opening in 2006, or when there was another opening in May 2007. Plaintiff has testified that the individual who decided her account coverage in 2006 did not discriminate against her. Ex. 1, at 356-360. Defendant Joyce allegedly told Plaintiff that she was denied the account because they wanted a "young guy that gets in early and knows the research." Ex. 1, at 572-573. Even assuming that Defendant Joyce's uses of the term "guy" meant "male" and not "person," Plaintiff has failed to produce any evidence that Joyce either had decision-making authority²⁹ or actually had a meaningful role in the assignment of the JP Morgan account, or was speaking on behalf of others. See, e.g., Warble Aff. ¶ 10. Rather, if true, "[t]his is the kind of isolated and stray remark that is insufficient to establish [sex] animus and defeat a motion for summary judgment."³⁰

29 See Price Waterhouse v. Hopkins, 490 U.S. 228, 277, 109 S. Ct. 1775, 104 L. Ed. 2d 268 (1989) (O'Connor, J. concurring) ("statements by nondecisionmakers, or statements made by decisionmakers unrelated to the decisional process itself are insufficient to establish discriminatory intent); McLee v. Chrysler Corp., 109 F.3d 130, 137 (2d Cir. 1997) ("Claims of [non-decisionmaker's] bias . . . provide no basis for imputing to [the decisionmaker] an invidious motivation for the [adverse employment action]."); Opoku-Acheampong v. Depository Trust Co., 2005 U.S. Dist. LEXIS 16387, at *10-11 (S.D.N.Y. Aug. 9, 2005) ("stray comments are not evidence of discrimination if they are not temporally linked to an adverse employment action or if they are made by individuals without decision-making authority") (citations omitted).

30 Campbell v. Alliance Nat'l Inc., 107 F. Supp. 2d 234, 247 (S.D.N.Y. 2000) (quoting Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 545 (3d Cir. 1992) ("Stray remarks by non-decision-makers or by decision-makers unrelated to the decision process are rarely given great weight, particularly if they were made temporally remote form the date of decision."); other citation omitted); see, e.g., Danzer v. Norden Sys., 151 F.3d 50, 56 (2d Cir. 1998) (stray remark by employer without more does not constitute sufficient evidence to make out case of employment discrimination); Woroski v. Nashua Corp., 31 F.3d 105, 108-110 & n.2 (2d Cir. 1994) (indicating that stray remarks - even by a decision maker - cannot alone prove workplace discrimination).

In 2007, Plaintiff's account coverage was decided by an individual whom Plaintiff definitively states did not discriminate against her. Plaintiff's evidence provides no basis for inferring that the reason Plaintiff was not assigned to the JP Morgan account was Plaintiff's sex. Plaintiff was assigned to the JP Morgan account three months later in August 2007. He also assigned Plaintiff to another account in 2007. Plaintiff has made no effort to demonstrate that she was "so superior to the credentials of the person selected for the [account in 2006 or in May 2007] that no reasonable person, in the exercise of impartial judgment, could have chosen the candidate selected over the plaintiff for the [account] in question."^{31 32} Byrnie v. Town of Cromwell Bd. of Educ., 243 F.3d 93, 103 (2d Cir. 2001) (internal quotation marks and citation omitted); accord Diello v. Potter, No. 10-1776, 2011 U.S. App. LEXIS 4675, at *2-3 (2d Cir. Mar. 9, 2011). Thus, a material fact dispute does not exist that is appropriate for a jury to resolve in order to determine whether Plaintiff has established a discriminatory inference regarding her account coverage. No reasonable jury could find based upon this record that Plaintiff's sex was a factor in her being denied certain accounts.

31 "Courts have recognized that an employer's disregard or misjudgment of a plaintiffs job qualifications may undermine the credibility of an employer's stated justification for an employment decision." Byrnie, 243 F.3d at 103 (collecting cases). A plaintiff must satisfy a "weighty burden" because "the court must respect the employer's unfettered discretion to choose among qualified candidates." Id. (internal quotation marks and citation omitted).

32 The person promoted in 2006 had been covering the JP Morgan account for several months. The person promoted in May 2007, Glynn, had eight years more experience than Plaintiff and superior performance in 2006.

2. Defendant Merrill Articulated Legitimate Non-Discriminatory Reasons

Notwithstanding the fact that Plaintiff has not established a prima facie case of disparate pay, Merrill has articulated legitimate non-discriminatory business reasons for Plaintiff's bonus compensation in 2006 and 2007 - namely, Plaintiff's poor performance. Defendant Merrill contends, consistent with Plaintiff's Employment Agreement, that Plaintiff's bonus compensation was guaranteed in 2004 and 2005 and was discretionary for subsequent years. Defendant Merrill further contends, consistent with the evidence in the record, that Plaintiff's bonus compensation in 2006 and 2007 was based on her poor evaluations and performance deficiencies. Defendant Merrill has provided evidence that the decision-makers properly exercised his discretion to recommend Plaintiff's bonus compensation in 2006 and 2007 based on her performance. Defendant Merrill has also provided evidence that Plaintiff performed poorly based on various objective measures in both 2006 and 2007. Defendant Merrill provided a legitimate non-discriminatory reason for the amount of Plaintiff's bonus compensation in 2006 and 2007.

3. Plaintiff Has Failed to Demonstrate Pretext

A plaintiff must demonstrate that "the defendant's proffered reason for the adverse employment action is not the real reason." Fisher, 114 F.3d at 1337. A plaintiff must also demonstrate that the real reason was more likely than not discriminatory animus against her protected class. Id.;³³ see also Reeves, 530 U.S. at 143; Weinstock, 224 F.3d at 42. Moreover, it is well settled that courts in discrimination cases should not serve as "super-personnel departments" reviewing employer decisions. See Ghent v. Moore, 324 F. App'x 55, 57 (2d Cir. 2009); Byrnie, 243 F.3d at 103. "Only where an employer's business decision is so implausible as to call into question its genuineness should [a] court conclude that a reasonable trier of fact could find that it is pretextual." Fleming v. MaxMara USA, Inc., 371 Fed. App'x 115, 118 (2d Cir. Mar. 25, 2010) (citing Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988)); Dister, 859 F.2d at 1116 ("Evidence that an employer merely used poor business judgment . . . is insufficient to establish a genuine issue of fact as to the credibility of the employer's reasons.").

33 Fisher, 114 F.3d at 1337 ("We attach the label 'pretext' to a proffered reason that is not credited by the finder of fact. But the label 'pretext' does not answer the question: pretext for what? In some cases, an employer's proffered reason is a mask for unlawful discrimination. But discrimination does not lurk behind every inaccurate statement . . . . And if, on examination of the circumstances, there are many possible reasons for the false explanation, stated or unstated, and illegal discrimination is no more likely a reason than others, then the pretext gives minimal support to plaintiffs claim of discrimination.").

Even assuming, arguendo, that Plaintiff could establish a prima facia case, Plaintiff has not responded with evidence sufficient to warrant a reasonable jury finding by a preponderance of the evidence that "the legitimate reasons offered by the defendant[s] were not [their] true reasons, but were a pretext for [disparate pay]." Richardson v. Comm'n on Human Rights & Opportunities, 532 F.3d 114, 125 n.11 (2d Cir. 2008) (internal quotation marks omitted). Plaintiff's mere disagreement with her bonus compensation is wholly insufficient for her to survive summary judgment, even if Defendant Merrill was unwise, unreasonable, or wrong. Plaintiff has not set forth evidence that would demonstrate the pretextual nature of Defendant Merrill's articulated reason. Aside from her conclusory assertions, the record is devoid of any evidence that she was subjected to a different standard than her male colleagues and that this occurred due to a discriminatory animus. There is no evidence that Defendant Merrill failed to consider Plaintiff's production credits but did so for her male colleagues in 2006 or 2007. There is an absence of admissible evidence that an emphasis on production credits was required to properly exercise the afforded discretion. Ex. 2, at 34-35, 27-28, 41-45 (noting that Merrill is not a "commission shop" and that production credits are just a data point amongst other factors considered).³⁴ Most of all, Plaintiff has not set forth any evidence demonstrating that sex discrimination ever played a role in her bonus determinations. Rather, Plaintiff has admitted that the individuals who determined her bonus compensation, as well as individuals who provided the information relied upon, did not discriminate against her. Such a clear and explicit admission in light of the present record forecloses Plaintiff from establishing liability for disparate pay due to sex discrimination. No reasonable jury could find that Plaintiff established pretext based upon this record.

34 Sharoff's affidavit is not admissible evidence on this issue. Plaintiff has not demonstrated that he has personal knowledge of the information conveyed in his affidavit pursuant to Fed. R. Civ. P. 56(c)(4). He was, after all, a sales trader like Plaintiff and not a manager. He also had no authority to determine bonus compensation, nor was he involved in those decisions in 2006 and 2007. Notably, even if Sharoff's affidavit is considered, Plaintiff has still failed to meet her burden. Sharoff speaks to the importance of production credits, but Plaintiff remains without any evidence regarding how her bonus compensation was calculated in 2006 and 2007 and whether any differences from her male colleagues existed because of a discriminatory animus.

Accordingly, Defendant Merrill is entitled to summary judgment on the NYSHRL disparate pay claim.

4. NYCHRL CLAIM

Defendant Merrill is also entitled to summary judgment on the NYCHRL disparate pay claim. NYCHRL claims must be given an independent liberal construction from claims analyzed under the Title VII standard. See Kolenovic v. ABM Industries Inc., 361 Fed. App'x 246 (2d Cir. Jan. 21, 2010) (citing Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d Cir. 2009); other citations omitted); Williams v. New York City Housing Authority, 61 A.D.3d 62, (N.Y. App. Div. 2009) (trial court's "decision dismissing the action failed, however, to properly construe plaintiffs claims under the local Restoration Act, which mandates that courts be sensitive to the distinctive language, purposes, and method of analysis required by the [NYCHRL], requiring an analysis more stringent than that called for under either Title VII or the [NYSHRL]"). Even under the NYCHRL's more liberal standard, Plaintiff has still failed to frame any genuine issue of fact as to gender discrimination.

B. DEFENDANT JOYCE

Unlike under Title VII,³⁵ individuals may be held liable under NYSHRL and NYCHRL if they "actually participated in the conduct giving rise to the discrimination claim." See Feingold v. New York, 366 F.3d 138, 157 (2d Cir. 2004) (quoting Tomka, 66 F.3d at 1317). Having failed, supra, to establish any discriminatory acts under either provision, Plaintiff cannot, as a matter of law, establish personal or accessory liability against Defendant Joyce. Accordingly, Defendant Joyce is entitled to summary judgment on the disparate treatment claims.

35 "Individuals are not subject to liability under Title VII." Sassaman v. Gamache, 566 F.3d 307, 315-16 (2d Cir. 2009) (quoting Patterson v. County of Oneida, 375 F.3d 206, 221 (2d Cir. 2004) (quoting Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000))); see also Tomka v. Seiler Corp., 66 F.3d 1295, 1313 (2d. Cir. 1995), abrogated on other grounds by Burlington Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

RETALIATION CLAIM

Plaintiff's First Amended Complaint asserted a claim for retaliation under the NYSHRL and the NYCHRL against Defendants Merrill and Joyce. Plaintiff contends that she received less bonus compensation for 2007 because she complained to Human Resources about discrimination. Plaintiff also contends that the hostile work environment that she was subjected to by Defendant Joyce worsened after her complaints to Human Resources. Defendants moved for summary judgment on this claim, but Plaintiff has made no attempt to rebut Defendants' motion. Nor do her opposition papers even mention the claim. Accordingly, the Court finds that Plaintiff has abandoned her NYSHRL retaliation claim. Defendants Merrill and Joyce are thus entitled to summary judgment on the NYSHRL retaliation claim. See Giovanna v. Beth Israel Med. Ctr., 651 F. Supp. 2d 193, 208 (S.D.N.Y. 2009) (collecting cases); see, e.g., Ballard v. Children's Aid Soc'y, 2011 U.S. Dist. LEXIS 48203, at *28-29 (S.D.N.Y. Apr. 28, 2011). In any event, summary judgment is warranted based upon the record.

A. NYSHRL RETALIATION

The burden-shifting framework set forth by McDonnell Douglas also applies to unlawful retaliation claims under NYSHRL.³⁶ See Stratton v. Dep't for the Aging for the City of New York, 132 F.3d 869, 879 (2d Cir. 1997). "[T]he plaintiff must first present sufficient evidence to make out a prima facie case, that is, evidence sufficient to permit a rational trier of fact to find": "[1] that she engaged in protected participation or opposition . . ., [2] that the employer was aware of this activity, [3] that the employer took adverse action against the plaintiff, and [4] that a causal connection exists between the protected activity and the adverse action, i.e., that a retaliatory motive played a part in the adverse employment action." Cifra v. GE, 252 F.3d 205, 216 (2d Cir. 2001) (quoting Sumner v. United States Postal Service, 899 F.2d 203, 208-09 (2d Cir. 1990)) (internal quotation marks omitted); accord Kaytor v. Elec. Boat Corp., 609 F.3d 537, 552-53 (2d Cir. 2010). "[T]he burden of production shifts to the defendant to proffer a legitimate non-retaliatory reason for the adverse employment action." Kaytor, 609 F.3d at 552-53 (citation omitted). "If the employer produces such evidence, the employee must, in order to avoid summary judgment, point to evidence sufficient to permit an inference that the employer's proffered non-retaliatory reason is pretextual and that retaliation was a substantial reason for the adverse employment action." Id. at 553 (internal quotation marks omitted).

36 See also Forrest v. Jewish Guild for the Blind, 3 N.Y.3d 295, 312-13 (2004) (applying same standard for Title VII and NYSHRL retaliation claims).

Plaintiff has failed to establish a prima facie case against Defendants Merrill and Joyce with respect to the alleged retaliatory act of decreasing her 2007 bonus compensation. Plaintiff met with Human Resources on January 7, 2008. Plaintiff learned about the amount of her 2007 bonus compensation on January 10, 2008. However, the determination of the amount of her bonus compensation, not the notification, is the alleged retaliatory act. That act occurred prior to her complaints to Human Resources. The evidence indicates that the bonus amounts for Merrill employees were determined by early December 2007, and approved by the Board later that month. The evidence also indicates that the bonus amount ultimately paid to Plaintiff (i.e. $375,000) in December 2007 was recommended before Plaintiff ever complained to Human Resources. Plaintiff has provided no evidence that the decision-makers (or anyone else) made or changed the bonus determination between January 7, 2008, and January 10, 2008. Thus, no reasonable jury could find a causal connection between her alleged protected activity and the alleged adverse action.

Plaintiff has also failed to establish a prima facie case against Defendants Merrill and Joyce with respect to the alleged retaliatory act of worsened hostile work environment or harassment. Fatal to Plaintiff's claim is that fact that she has failed to produce sufficient evidence for a reasonable jury to find that she was subject to a hostile work environment. In any event, the record lacks any evidence that Defendant Joyce had knowledge of Plaintiff's complaints to Human Resources or Stewart in January 2008. Plaintiff offers solely a bald, unsubstantiated assertion that it was her "own belief that Defendant Joyce was informed. Ex. 1, at 324-325. Defendant Joyce submitted evidence that he only learned of Plaintiff's complaints after Plaintiff commenced this lawsuit. Plaintiff has pointed to no admissible evidence to contradict this fact. No reasonable jury could find that Defendant Joyce, the alleged perpetrator, was aware of the protected activity. In light of the absence of any evidence of causation, no reasonable jury could find that Plaintiff established a causal connection between her alleged protected activity and the alleged adverse action.³⁷ Accordingly, Defendants Merrill and Joyce are entitled to summary judgment on the NYCHRL retaliation claim.

37 See Gordon v. New York City Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) ("The lack of knowledge on the part of particular individual agents is admissible as some evidence of a lack of a causal connection, countering plaintiff's circumstantial evidence of proximity or disparate treatment."); Murray v. Visiting Nurse Servs. of NY, 528 F. Supp. 2d 257, 271 (S.D.N.Y. 2007) ("[D]istrict courts have consistently held that, with regard to the causation prong of the prima facie standard, absent any evidence to support an inference that the decisionmakers knew of plaintiff's complaints, plaintiff cannot rely on circumstantial evidence of knowledge as evidence of causation."); Philippeaux v. Fashion Inst. of Tech., 1996 U.S. Dist. LEXIS 4397, at *14-15 (S.D.N.Y. Apr. 9, 1996) (noting that a retaliation claim requires the actual decision-maker to have knowledge of the plaintiff's protected activity).

B. NYCHRL RETALIATION

The elements of retaliation under the NYCHRL differ only in "that the plaintiff need not prove any 'adverse' employment action; instead, he must prove that something happened 'that would be reasonably likely to deter a person from engaging in protected activity.'" Jimenez v. City of New York, 605 F.Supp.2d 485, 528 (S.D.N.Y. 2009) (quoting NYCHRL § 8-107(7)); accord Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010) (citations omitted). Applying this standard to the case at bar, the outcome is the same as that under the NYSHRL. There is a lack of temporal proximity or any other causal connection. Accordingly, Defendants Merrill and Joyce are entitled to summary judgment on the NYCHRL retaliation claim.

HOSTILE WORK ENVIRONMENT

To sufficiently plead a hostile work environment claim, a plaintiff must "show that the complained of conduct: (1) is objectively severe or pervasive - that is, . . . creates an environment that a reasonable person would find hostile or abusive; (2) creates an environment that the plaintiff subjectively perceives as hostile or abusive; and (3) creates such an environment because of the plaintiff's [membership in a protected class]."³⁸ Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (quoting Gregory, 243 F.3d at 691-92) (internal citations and quotation marks omitted); accord Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). A plaintiff must show that the "workplace was so severely permeated with discriminatory intimidation, ridicule, and insult that the terms and conditions of [his] employment were thereby altered." Alfano v. Costello, 294 F.3d 365, 373 (2d Cir. 2001); accord Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723-24 (2d Cir. 2010). "[T]he plaintiff must show more than a few isolated incidents," "although a hostile work environment can also be established through evidence of a single incident of harassment that is 'extraordinarily severe.'" Fincher, 604 F.3d at 724 (citing Williams v. County of Westchester, 171 F.3d 98, 100-01 (2d Cir. 1999) (per curiam)); id. (quoting Cruz v. Coach Stores, Inc., 202 F.3d 560, 570 (2d Cir. 2000); citing Alfano, 294 F.3d at 374). "To decide whether the threshold has been reached, courts examine the case-specific circumstances in their totality and evaluate the severity, frequency, and degree of the abuse." Alfano, 294 F.3d at 374; see also Harris, 510 U.S. at 23 (relevant factors include "the frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance"). Additionally, the plaintiff must show "a specific basis for imputing the conduct creating the hostile work environment to the employer." Feingold , 366 F.3d at 150 (citing Alfano, 294 F.3d at 373).

38 This Court will jointly consider Plaintiff's claims for gender-based and sexual harassment hostile work environment. A workplace may be found to be hostile on the basis of gender not only where the conduct at issue references sexuality or sexual desire, but also where the conduct "could, in context, reasonably be interpreted as having been taken on the basis of plaintiff's gender." Gregory v. Daly, 243 F.3d 687, 695 (2d Cir. 2001); accord Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81 (1998) ("[H]arassing conduct need not be motivated by sexual desire to support an inference of discrimination on the basis of sex."); Mormol v. Costco Wholesale Corp., 364 F.3d 54, 57 (2d Cir. 2004) ("Courts have traditionally recognized two forms of sexual harassment: 'quid pro quo' harassment and 'hostile work environment' harassment. . . . The distinction between the two forms of sexual harassment serves "to instruct that Title VII is violated by either explicit or constructive alterations in the terms or conditions of employment and to explain [that] the latter must be severe or pervasive) (quoting Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 752-53 (1998)); Raniola v. Bratton, 243 F.3d 610, 617 (2d Cir. 2001) ("Although sexual harassment is usually thought of in terms of sexual demands, it can include employer action based on [sex] but having nothing to do with sexuality. For example, a woman, entering a work environment that previously has been all-male, might encounter severe, sustained hostile treatment by her male supervisors and/or co-workers.") (quoting 3 Lex K. Larson, Employment Discrimination § 46.01[3] (2d ed. 2000); other citations omitted). The "crucial question" is "whether the workplace atmosphere, considered as a whole, undermined plaintiff['s] ability to perform [her] job[], compromising [her] status as equal[] to men in the workplace." Dawson v. County of Westchester, 373 F.3d 265, 274 (2d Cir. 2004) (citations omitted).

The alleged conduct and comments by Defendant Joyce were not so severe or pervasive that a reasonable jury could find that they constituted a hostile work environment. The conduct and comments, which allegedly occurred between November 2005 and February 2008, were sporadic and did not occur with regularity. It is also not without some significance that the majority of the comments were directed at or were about other individuals, and not Plaintiff. The conduct and comments were in isolation not outrageous or shocking. The comments were also not serious enough for Plaintiff to complain to Human Resources until one month before she resigned. Rather, the cumulative effect, as best characterized by Plaintiff, was that the Desk at Merrill was a men's locker room environment. That alone, however, is not enough to make out a hostile work environment. Title VII "does not set forth 'a general civility code for the American workplace.'" Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006) (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80 (1998)). Nor does Title VII prohibit "genuine but innocuous differences in the ways men and women routinely interact with members of the same sex and of the opposite sex." Oncale, 523 U.S. at 81. This includes "an unpleasant, harsh, combative or difficult work environment," including, as solely identified here, "abusive, banal, profane and vulgar" comments by a co-worker who uses "insensitive, profane and vulgar language," and "the sporadic use of abusive language, gender-related jokes, and occasional teasing." Oncale, 523 U.S. at 81; Leibovitz v. New York City Transit Auth., 252 F.3d 179, 189 (2d Cir. 2001) (citing Harris, 510 U.S. at 21); Faragher v. City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998) (internal quotation marks omitted); Benette v. Cinemark U.S.A., Inc., 295 F. Supp. 2d 243, 250 (W.D.N.Y. 2003); see, e.g., Vito v. Bausch & Lomb, Inc., 403 Fed. Appx. 593, 596 (2d Cir. 2010).

Moreover, even if the conduct and comments were sufficient, Plaintiff has failed to establish that the hostile work environment that she experienced was based upon or targeted her sex. The record is utterly devoid of any evidence that the atmosphere impeded Plaintiff's ability to perform her job as a sales trader, or that her status in the workplace was compromised because of her sex, rather than other characteristics such as her personality or work performance. Accordingly, there is insufficient evidence to prevent summary judgment on the issue of whether a hostile work environment existed. Defendants Merrill and Joyce are entitled to summary judgment on the hostile work environment claims under NYSHRL and NYCHRL.³⁹

39 It is unnecessary to address the issue of whether there is a basis for imputing objectionable conduct to the employer.

CONSTRUCTIVE DISCHARGE

For Plaintiff to demonstrate constructive discharge, a plaintiff must show that the employer "intentionally create[d] a work atmosphere so intolerable that [the employee] is forced to quit involuntarily." Terry, 336 F.3d at 151-52 (holding that allegations of constructive discharge, "viewed as a whole, [must be] so difficult or unpleasant that a reasonable person in the employee's shoes would have felt compelled to resign"). "Whether working conditions are sufficiently intolerable to constitute a constructive discharge 'is assessed objectively by reference to a reasonable person in the employee's position.'" Borski v. Staten Island Rapid Transit, 2011 U.S. App. LEXIS 5281, at *1 (2nd Cir. March 16, 2011) (quoting Petrosino, 385 F.3d at 230).

Plaintiff's First Amended Complaint asserts constructive discharge in conjunction with each of her claims, rather than as a separate claim for relief. Having failed to produce sufficient evidence for a reasonable jury to find in her favor as to any of her discrimination and retaliation claims, Plaintiff cannot demonstrate the predicate that resulted in her constructive discharge. See Pennsylvania State Police Officers v. Suders, 542 U.S. 129, 147 (2004) ("A hostile-environment constructive discharge claim entails something more: A plaintiff who advances such a compound claim must show working conditions so intolerable that a reasonable person would have felt compelled to resign"); Johnson v. Potter, 2009 U.S. Dist. LEXIS 62845, at *47-48 (W.D.N.Y. July 22, 2009) ("[W]hen dealing with a claim for constructive discharge resulting from retaliation, actual retaliation is a necessary predicate.") (collecting cases), aff'd 398 Fed. Appx. 644 (2d Cir. 2010) (summary order).⁴⁰ Disparate pay alone, even if discriminatorily motivated, does not suffice to establish a claim for constructive discharge. See Martin v. Citibank, 762 F.2d 212, 221 (2d Cir. 1985) (citing Bourque v. Powell Elec. Mfg. Co., 617 F.2d 61 (5th Cir. 1980) (resignation due to lower pay resulting from sex discrimination does not constitute constructive discharge); and Muller v. U. S. Steel Corp., 509 F.2d 923, 929 (10th Cir. 1975) (unfavorable job assignment and discriminatory failure to promote does not constitute constructive discharge)). Accordingly, Defendants Merrill and Joyce are entitled to summary judgment on the constructive discharge claims under NYSHRL and NYCHRL.

40 This Court alternatively finds that the acts alleged by Plaintiff fail to establish a constructive discharge as a matter of law.

CONCLUSION

The motion for summary judgment by Defendants Merrill Lynch & Co., Inc., and Merrill Lynch, Pierce, Fenner & Smith, Inc., is GRANTED. The motion for summary judgment by Defendant Richard Joyce is also GRANTED. Plaintiff's First Amended Complaint is DISMISSED.

The Clerk of the Court is directed to close this action. Dated: New York, New York

August 26, 2011

SO ORDERED:

/s/_________

GEORGE B. DANIELS

United States District Judge