Benussi v. UBS Financial Services Inc., 1:12-cv-01261

Background

Elena Benussi worked at UBS from 2001 until termination on November 23, 2010; she was a financial advisor supervised by Kellie Brady and John Decker.
In 2010 a performance plan and ensuing supervisory friction led to repeated coaching sessions and email disputes between Benussi and supervisors.
On November 12–19, 2010 Benussi complained to HR that a male colleague had called her “either a dyke or a slut,” refused to identify the speaker, and (during the HR process) disclosed to Brady that she did not "date men," which she characterizes as revealing her sexual orientation.
UBS contends Brady and Decker decided to fire Benussi on November 9 because of insubordination, difficulty managing her, and repeated complaints about Brady’s relationship with a colleague; the decision was implemented November 23.
UBS’s EEOC submission and internal documents present inconsistent timelines and rationales (e.g., stating the termination decision was made on or about November 23 and citing refusal to cooperate with investigation), creating disputed facts about timing and motive.
The district court found material factual disputes about whether Benussi’s report and/or disclosure of her sexual orientation caused her termination and denied UBS’s motion for summary judgment.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether reporting the offensive comment was protected activity for retaliation claim	Benussi reasonably believed the gender/sexual-orientation slur was unlawful and thus opposed discrimination by reporting it	UBS says a single remark was not reasonably perceived as unlawful and she expressly said it was "not a complaint" and refused to ID the speaker	Court: disputed facts exist; a jury could find she reasonably believed the comment unlawful and that her disclosure constituted opposition
Causation — whether reporting the comment was a but‑for cause of termination	Temporal proximity (termination within 11 days) and HR reaction support causation; inconsistencies in UBS timeline suggest termination decision occurred after the report	UBS says supervisors decided to terminate on Nov. 9 (before report) for legitimate performance/insubordination reasons	Court: factual disputes over timing and inconsistent employer explanations preclude summary judgment on but‑for causation
Pretext — whether UBS’s stated reasons are pretextual	UBS’s shifting explanations and EEOC filing inconsistencies show weaknesses and contradictions sufficient for a jury to infer pretext	UBS offers non‑discriminatory reasons (insubordination, poor performance, repeating concerns about Brady/Cowan) and says minor inconsistencies are immaterial	Court: inconsistencies (EEOC submission, HR testimony, internal draft email) create triable issues of pretext
Sexual‑orientation discrimination under NYSHRL/NYCHRL — whether UBS knew and whether termination inference exists	Benussi told Brady she "doesn't date men" during the investigation; temporal proximity and Brady’s notes about Benussi’s "fondness" could support inference	UBS contends Benussi never explicitly said "gay/lesbian," so no knowledge; termination was for non‑discriminatory reasons	Court: jury questions exist on whether Brady knew and whether termination was motivated in part by disclosure; summary judgment denied

Key Cases Cited

Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98 (2d Cir.) (summary judgment standard)
Anderson v. Liberty Lobby, 477 U.S. 242 (U.S.) (genuine‑issue and credibility principles on summary judgment)
Celotex Corp. v. Catrett, 477 U.S. 317 (U.S.) (movant’s initial burden on summary judgment)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S.) (burden‑shifting framework for discrimination claims)
Lore v. City of Syracuse, 670 F.3d 127 (2d Cir.) (elements of retaliation claim)
Univ. of Texas Southwestern Medical Center v. Nassar, 133 S. Ct. 2517 (U.S.) (but‑for causation standard for retaliation)
Crawford v. Metropolitan Government of Nashville & Davidson County, 555 U.S. 271 (U.S.) (what constitutes "opposition"/protected activity)
Zann Kwan v. Andalex Group LLC, 737 F.3d 834 (2d Cir.) (use of inconsistencies and temporal proximity to show pretext)