Case Information
*1 PAUL A. ENGELMAYER, District Judge:
Plaintiff Kristin Benzinger, who identifies as an American of German descent, was employed by defendant Lukoil Pan Americas, LLC (“Lukoil”), as an executive assistant between April 2013 and February 2015. Benzinger brings claims against Lukoil and its parent company, defendant Litasco S.A., for employment discrimination—on the grounds that she was allegedly treated less well than her Russian colleagues—and retaliation, in violation of the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”), and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq. (“NYCHRL”). Benzinger also brings claims for retaliation under the Fair Labor Standards Act, 29 U.S.C. § 215 (“FLSA”), and the New York Labor Law, N.Y. Lab. Law § 215 (“NYLL”). [1]
Pending now is defendants’ motion for partial summary judgment as to Benzinger’s discrimination and retaliation claims. For the reasons that follow, the Court grants defendants’ *2 motion as to all claims under the NYSHRL and the NYCHRL, but denies the motion as to Benzinger’s FLSA and NYLL retaliation claims.
I. Background
A. Factual Background [2]
1. The Parties Lukoil is a Delaware limited liability company engaged in the trading of petroleum products and crude oil. Def. 56.1 ¶ 2. Lukoil has its executive office in New York, New York. Id. Litasco is the parent company for Lukoil and other subsidiaries around the world. Id. ¶ 65. Litasco is located in Geneva, Switzerland. Id. ¶ 69.
Benzinger, who identifies as an American of German descent, worked at Lukoil’s New York City office beginning in April 2013. Id. ¶ 14. She worked there until February 2015, when she left for a higher-paying job as Director of the President’s House in the Office of the President of Columbia University. ¶¶ 54–58.
*3 2. March 2013: Lukoil Hires Benzinger
By letter dated March 22, 2013, Lukoil offered Benzinger the position of executive assistant, at the company’s New York City headquarters, subject to a 90-day introductory period. Id. ¶ 1. On March 23, 2013, Benzinger accepted Lukoil’s offer by executing the offer letter. She began working on April 29, 2013. Id. ¶¶ 3, 14.
At the time of Benzinger’s hiring, the base annual wage for the executive assistant position was $85,000, payable semi-monthly. Id. ¶ 4. As an executive assistant, Benzinger was eligible for a discretionary bonus that was not guaranteed and was contingent upon a variety of factors, including company and individual performance. Id. ¶ 5. Benzinger was also eligible for a variety of other benefits, including medical and dental insurance, flexible spending accounts, long- and short-term disability plans, Lukoil’s Employee Assistance Program, company-paid and voluntary life insurance, and a 401(k) plan. ¶ 6. When she started working for Lukoil, Benzinger was eligible for three work weeks of vacation time, which she was granted pursuant to Lukoil’s time-off policies. Id. ¶ 7.
Benzinger was also eligible to participate in Lukoil’s Profit Sharing Plan. The Profit Sharing Plan involves a discretionary distribution from Lukoil to its employees as a whole. Eligibility for the Profit Sharing Plan and individual employee distributions are guided by rules generated by Lukoil’s Profit Sharing Plan Committee and approved by the Internal Revenue Service in accordance with Section 401 of the Internal Revenue Code. Lukoil’s managing director determines the total amount of funding for the Profit Sharing Plan on an annual basis, but does not determine which employees receive Profit Sharing Plan distributions and does not have discretion over the amounts of the distributions to individual employees. Lukoil employees are eligible to receive Profit Sharing Plan distributions only after one year of service; *4 distributions in the first year of eligibility are pro-rated based on the date an employee becomes eligible. Id. ¶¶ 8–13.
3. Benzinger’s Role and Responsibilities On April 29, 2013, Benzinger began working in Lukoil’s New York City office. Id. ¶ 14. Between April 29, 2013 and July 2014, Benzinger reported directly to Lukoil’s two managing directors, James Reynolds and Thomas Rodilosso. Managing director is the most senior executive position in Lukoil, managing all aspects of Lukoil’s trading business in the United States and North America. Reynolds and Rodilosso are both American. Id. ¶¶ 15–17.
In July 2014, Simon Fenner became the new managing director of Lukoil. Between July 2014 and her departure from Lukoil in February 2015, Benzinger reported directly to Fenner, who is British. ¶¶ 18–19.
As executive assistant, Benzinger had various responsibilities, including performing a myriad of tasks for managing directors Rodilosso, Reynolds, and Fenner. Id. ¶ 20. Benzinger’s duties and responsibilities in practice were more extensive than those listed in the job description in the offer letter she had executed. For example, Benzinger’s duties also included assisting the managing director, assisting the chief legal director, and overseeing procurement, information technology, travel, and expenses. Id. ¶¶ 21–22. Benzinger also performed certain ad hoc work, including dealing with office remodeling, and she was involved in developing presentation strategy. Id. ¶¶ 23–24. In the “professional summary” she provided to Columbia University when seeking employment there in 2015, Benzinger described herself as Lukoil’s “‘go-to’ person for office[-]related knowledge, IT and phone trouble[-]shooting” and noted that she had “identified inefficiencies and created and implemented solutions that saved money and time” at the company. Id. ¶¶ 25–26. Benzinger also renegotiated all office supplier contracts, upgraded *5 Lukoil’s lunch ordering program, created a new electronic filing system, and assisted in obtaining visas for foreign workers. Id. ¶ 27.
4. Benzinger’s Relationship with Inga Bogutska Benzinger identifies Inga Bogutska as a key comparator. Bogutska, who began working for Lukoil in 2009, was the executive assistant before Benzinger’s hiring. Id. ¶ 30; Fenner Decl. ¶ 22. Bogutska was effectively demoted when Benzinger was hired. Fenner Decl. ¶ 22.
The parties dispute whether and to what extent Benzinger served as Bogutska’s supervisor or manager. Benzinger concedes that she supervised Bogutska on certain projects, but disputes defendants’ characterization that she was Bogutska’s de facto supervisor. Def. 56.1 ¶ 28; Pl. 56.1 ¶ 28. [3] When asked which of her job responsibilities she found “annoying,” Benzinger replied, “[i]t was a challenge to manage and supervise [Bogutska].” Def. 56.1 ¶ 29; Benzinger Tr. at 160.
Although Bogutska had worked for Lukoil since 2009, her base salary in 2014 was $73,129.92, Def. 56.1 ¶ 30, whereas Benzinger earned $85,000.08 in base salary, id. ¶ 31. Both Bogutska and Benzinger also earned discretionary bonuses for performance. In 2014, Lukoil paid Bogutska a $10,000 discretionary bonus and paid Benzinger a $12,500 discretionary bonus. ¶¶ 32–34. Benzinger’s total compensation in 2014—paid by Lukoil—was $14,370 greater than Bogutska’s. Id. ¶ 35.
*6 In 2014, Benzinger and Bogutska also both received Profit Sharing Plan distributions.
Bogutska received a distribution of $15,265.16 based on her total annual compensation, which included her base salary and discretionary bonus. Id. ¶ 36. Benzinger received a distribution of $10,405.68, which was prorated for two-thirds of one year of her compensation because she did not become eligible according to the Profit Sharing Plan rules until April 29, 2014. [4] Id. ¶ 37. [5]
5. Benzinger’s Requests for Increased Compensation and Role In March 2014, having worked at Lukoil for less than a year, Benzinger requested a $5,000 raise in her base salary, but did not receive that increase at that time. Id. ¶¶ 38–39. In July 2014, Fenner became Lukoil’s new managing director, to whom Benzinger directly reported. Id. ¶ 18. Soon after Fenner’s hiring, Benzinger sought and obtained a meeting with Fenner and Jennifer Diehl, Lukoil’s human resources consultant, to discuss several requests related to her salary and role with the company. Id. ¶ 40; JSF ¶ 23. At the meeting, Benzinger again requested a $5,000 increase in her base salary and an expanded role in the office, stated *7 that her total compensation expectation in the role of Executive Assistant was in the range of $135,000 and $140,000, and sought a fourth week of vacation time. Def. 56.1 ¶¶ 42–44. After the meeting, on September 30, 2014, Benzinger wrote to Fenner and Diehl:
Hi Jenn and Simon,
In summation of our recent meeting:
• I am above or within the benchmark for my current role of Executive Assistant[;]
• Performance reviews only determine bonus size, they will be completed in March 2015[;]
• I am to continue to respond to afterhours request[s] only if they are urgent • We will explore role expanding and upgrade opportunities in the mid and long term[;]
• I requested a $5,000 increase in base salary first in March of 2014 and again today[;]
• I will remain an exempt employee[;]
• [My] [t]otal comp expectation is 135k – 140k in the E[xecutive] A[ssistant] Role
The one thing I forgot: Can we make my 4th week of vacation official and in writing now?
All best,
Kristin Benzinger
Office Ninja and Coor[din]ator of Special Projects
Collyer Decl., Ex. H; see Def. 56.1 ¶¶ 41–44. [6]
Responding in the same email thread, on October 29, 2014, Fenner wrote to Benzinger that she would not receive a $5,000 raise because she was above the Lukoil salary benchmark for *8 her current role, Def. 56.1 ¶ 45, based on benchmarking data provided by a third-party staffing and executive search firm, Fenner Decl. ¶ 12. However, in the same email, Fenner also advised Benzinger that her base salary would be reviewed at indeterminate point, and that he and Diehl would explore expanding Benzinger’s role and upgrading her mid- and long-term opportunities at the company. Def. 56.1 ¶ 46. Fenner also informed Benzinger that she would not receive a permanent fourth week of vacation, explaining that he had spoken with his predecessor, Rodilosso, who had confirmed that Benzinger’s four-week vacation allowance had been a special dispensation for the year she was married and had other family commitments. Id. ¶ 47. Fenner also committed to “work[ing] with [Diehl] to determine if [Benzinger] should be a non-exempt employee.” Collyer Decl., Ex. I at 2.
In response to Fenner’s email, on November 1, 2014, Benzinger wrote Fenner, thanking him for his detailed response and acknowledged that, while she was disappointed with his initial conclusions, she was excited to work with Fenner on future solutions and evolving her role. Def. 56.1 ¶ 48. [7] Benzinger further wrote that “[t]he exempt vs. non[-exempt] concept is not an angle I wish to pursue due to the nature of the business and your concept of flexibility and quality of life work balance. Calculating hours is a waste of time and I am happy [to] have the flexibility of working some extra hours one week and leaving early the next with your approval.” Collyer Decl., Ex. I at 1.
6. Benzinger’s Job Search and Resignation from Lukoil Shortly thereafter, Benzinger began searching elsewhere for employment, interviewing with Columbia University (“Columbia”) and one other company. Def 56.1 ¶ 50. On January 5, 2015, Columbia offered Benzinger the position of Director of the President’s House in the Office *9 of the President. Id. ¶ 51. On January 22, 2015, after delaying acceptance so that she could interview with another potential employer, Benzinger accepted Columbia’s offer. Columbia confirmed Benzinger’s verbal acceptance by letter the same day. Id. ¶¶ 52–53. As Director of the President’s House, Benzinger earned a starting salary of $115,000 annually and, as of July 2018, an annual salary of $130,000 in that position—in line with the salary she had sought during her September 2014 meeting with Fenner and Diehl. Id. ¶¶ 54–55, 58. On January 20, 2015, after accepting her new position with Columbia, Benzinger resigned from Lukoil. Id. ¶ 56. February 3, 2015 was Benzinger’s last day of employment with Lukoil. Id. ¶ 57.
7. Composition of Lukoil’s Staff and Alleged Favoring of Russians In December 2014, during Benzinger’s employment, just two of Lukoil’s 48 total employees—Ruzanna Zaziyants and Anastasia Bagin-Borzilov—held Russian passports. Id. ¶ 59. Lukoil does not maintain national origin data on its employees. None of Fenner’s direct reports in legal, human resources, IT, treasury, trading, or risk were of Russian descent. Id. ¶ 60. [8] None of the three managing directors to whom Benzinger reported during her tenure at Lukoil were of Russian descent: Fenner is British, while James Reynolds and Thomas Rodilosso are American. Tim Bullock, the sole member of the Lukoil Board of Directors during Benzinger’s entire tenure at Lukoil, is British. After Benzinger resigned in January 2015, she *10 was succeeded by Monique Charles, who is American. Id. ¶¶ 61–63. Inga Bogutska is Ukrainian. Id. ¶ 64. [9]
Benzinger testified that she decided to resign from Lukoil because the company—and Fenner and the human resources department, in particular—did not treat employees fairly, including by failing to pay overtime and by “treating Russian employees better.” Pl. 56.1 ¶ 57.1. Before Benzinger’s departure from Lukoil, she told Fenner that she felt she had been left out, that she believed she was compensated less than Bogutska, and that she was owed wages as a result of having been misclassified as an exempt employee. Collyer Decl., Ex. B (“Fenner Tr.”) at 74–75; see Pl. 56.1 ¶ 57.3. Fenner was also aware that Benzinger had discussed her status as an exempt employee with Diehl. Fenner Tr. at 70–71; see Pl. 56.1 ¶ 57.6.
Citing Fenner’s deposition testimony, Benzinger also states that Fenner was aware that Benzinger had complained about discrimination while employed with Lukoil. Pl. 56.1 ¶ 57.2. This assertion mischaracterizes Fenner’s testimony. In fact, Fenner testified, in the portion of the deposition cited by Benzinger, the opposite:
Q: Have you ever heard Ms. Benzinger complain that she felt discriminated against at Lukoil?
A: No.
Q: Did anybody ever tell you that she had reported she felt discriminated against at Lukoil?
. . .
A: So the only time it came to my attention was right at the very end, just before she resigned.
Q: Can you describe, specifically, what came to your attention with respect to Ms. Benzinger’s complaints, that she had felt discriminated [against] at Lukoil? *11 A: She told me, just before she resigned, that she felt like she wasn’t part of a team, words to that effect.
Q: Did she specifically say she felt discriminated against?
A: No.
Q: Did she say why she did not feel she was part of the team?
A: No.
Fenner Tr. at 35–37. [10]
Benzinger also testified that she thought Russian employees were promoted more quickly and provided more opportunities for professional development, training, and travel. Pl. 56.1 ¶ 57.5 (citing Benzinger Tr. at 76, 78, 80–81, 83–84). In particular, Benzinger believed that Bogutska, Irina Akinshina, a “manager named Yuri” in the operations department, and another member of the operations department named Anya, were all Russian and all had more opportunities for development, training, and travel. Benzinger Tr. at 76, 78, 80–81, 83–84. Benzinger’s basis for believing that Bogutska, Yuri, and Anya are Russian is that she thought she heard them speaking Russian—Bogutska and Yuri to each other, and Anya on the phone. Id. at 79, 86. Benzinger does not speak Russian. Id. at 79. Yuri has a Ukrainian passport, Fenner Decl. ¶ 15, and, as reviewed above, Bogutska is Ukrainian.
Yuri and Anya worked in the operations department—a separate section of Lukoil. Benzinger Tr. at 78–83. Benzinger testified that she did not have similar job duties to Yuri, did not “know the circumstances around” his promotion in the operations department, and did not know how long he had been employed before he was promoted. Likewise, Benzinger conceded that she did not know what Anya’s job duties were or how long she had been employed by Lukoil, that she had never seen Anya’s resume, and that she was not involved in *12 evaluating Anya. Id. at 82–86. Akinshina, who works in Geneva, Switzerland, was the head of Litasco’s human resources department. Id. at 82; Fenner Decl. ¶ 8. Benzinger did not know how long Akinshina had been employed with Litasco before being promoted, whether anyone else applied or was considered for the same position, or who made the decision to promote Akinshina. Benzinger Tr. at 94, 96.
8. Lukoil’s Relationship with Litasco As reviewed above, Litasco, which is located in Geneva, Switzerland, is the parent company for Lukoil and other subsidiaries around the world. Def. 56.1 ¶¶ 65, 69. Lukoil and Litasco are separate corporate entities, id. ¶ 66, although Benzinger contends that they operate as a single entity with respect to the daily operations, oversight, and maintenance of Lukoil’s New York office, Pl. 56.1 ¶ 66.
Fenner, as Lukoil’s managing director, reports to the sole member of the Lukoil Board of Directors, who is Litasco’s CEO. Def. 56.1 ¶ 70. When Lukoil hired Fenner as managing director, Litasco’s CEO was Tim Bullock. ¶ 71. At all relevant times, Lukoil paid its employees’ wages, including Benzinger’s; Litasco did not pay Lukoil employees’ wages. Id. ¶ 79.
Fenner attested that “[w]hile Lukoil is a wholly-owned subsidiary of Litasco, [t]he companies are operated in separate countries, out of separate offices, with separate accounts, with separate staff performing company-specific roles[,] and . . . corporate formalities between the two companies . . . observed.” Fenner Decl. ¶ 6. Fenner further noted that “Lukoil and Litasco each maintain separate human resources departments to handle employee issues that arise in each respective company.” Id. ¶ 8. Specifically, Lukoil’s human resources department is run by Glory Perazzo, who reports to Fenner. Before Perazzo’s employment, Lukoil used the services of an outside human resources coordinator, Jennifer Diehl, who did not provide those *13 services to Litasco. Id. In contrast, Litasco’s human resources department is run by Akinshina, who is in Geneva. Id. However, Benzinger testified that Diehl handled human resources issues “in partnership with HR Litasco.” Benzinger Tr. at 104–105; see Def. 56.1 ¶ 68.
At his deposition, Fenner testified that he is employed by Lukoil, not Litasco. Fenner Tr. at 17; that Litasco is not directly involved in the day-to-day operations of Lukoil, id. ; that Litasco does not have any oversight into personnel decisions at Lukoil, such as the hiring and firing of employees, id. ; that Litasco does not have any oversight over employee compensation at Lukoil, id. ; that Litasco does not have any direct oversight function over human resources at Lukoil, id. ; and that Lukoil has had its own human resources department for at least five years, id. at 18. See Def. 56.1 ¶¶ 67, 72–78.
Benzinger recites several additional facts, which she claims create a dispute of fact as to the subjects of Fenner’s declaration and testimony. The Court reviews these in turn.
First, citing Fenner’s deposition testimony, Benzinger states that “Fenner has been asked to, and has in fact, interviewed individuals for employment at Litasco.” Pl. 56.1 ¶ 72 (citing Fenner Tr. at 23). However, the cited testimony unambiguously relates to Fenner’s experience interviewing for the managing director job at Lukoil, not his interviewing of individuals for employment at Litasco. [11] The Court thus disregards this purported fact.
Second, Benzinger states that she was “at times supervised by, and reported to, employees of Litasco including . . . Akinshina.” (citing Benzinger Tr. at 14, 19–21, 132–33). Benzinger testified that her contact with Akinshina “varied based on what was going on,” and that she considered Akinshina to be her supervisor as to certain projects—specifically: *14 “performance management training,” which entailed “organizing the paperwork of the performance reviews” for which the managing directors were responsible; “[g]oal settings,” which “was about how to set goals for your role according to the Litasco model”; and “[o]rganizing visas.” Benzinger Tr. at 14, 19–21. Benzinger also testified that, for proposed expenditures of greater than a certain threshold (either $5,000 or $20,000), Litasco required the use of a “[t]ender [p]rocess,” in which documents were submitted for approval, under the supervision of Fenner. at 132–134. This testimony does not contradict any of Fenner’s statements, although it does contain relevant additional facts.
Third, Benzinger states that Litasco has placed interns, whose expenses were paid by Litasco, at Lukoil’s New York office. Pl. 56.1 ¶ 72 (citing Vinci Decl., Ex. 2 (“Benzinger Decl.”) ¶ 13; Benzinger Tr. at 94–97). In particular, Benzinger testified that an intern named Julia or Yulia rotated through the New York office for a “few months.” Benzinger Tr. at 94–97. This testimony does not conflict with any of Fenner’s statements, although it does contain additional relevant facts.
Fourth, Benzinger notes that, in a letter dated January 1, 2014, the managing directors of Lukoil sent all Lukoil employees a Lukoil “Performance Management Policy” and a Litasco “Competency Model,” both of which were effective immediately. See Pl. 56.1 ¶ 72 (citing Vinci Decl., Ex. 8). That letter stated that Litasco’s human resources department was “at your disposal to assist you in the correct application of the present documents.” Vinci Decl., Ex. 8. While relevant, this letter does not create a dispute of fact as to any fact supported by Fenner’s testimony.
Fifth, Benzinger notes that Fenner testified that: he works closely with Bullock; the teams at Lukoil have “very tight relationships with all the other affiliates [of Litasco] . . . meaning, the *15 other subsidiaries of Litasco,” as well as with teams at Litasco itself; he “frequently spend[s] time discussing strategy, business, and other matters with all the other affiliates; and that the human resources departments at Lukoil and Litasco “share policies, practices, general communications, [and] resources [ i.e. , training materials] sometimes.” Fenner Tr. at 15–16, 18; see Pl. 56.1 ¶ 72. This testimony, too, raises relevant additional facts, but it does not conflict with the facts recited by defendants.
B. Procedural History
On November 2, 2016, Benzinger filed her complaint. Dkt. 1. On January 27, 2017, defendants filed a partial motion to dismiss. Dkts. 11–13. On March 6, 2017, Benzinger opposed the motion, Dkts. 18–20, and, on March 20, 2017, defendants replied, Dkt. 21. On July 12, 2017, the Court held argument on the motion, during which the Court authorized Benzinger to file an amended complaint by July 28, 2017. See Dkt. 26. On July 13, 2017, the Court denied as moot, without prejudice, defendants’ partial motion to dismiss.
On July 28, 2017, Benzinger filed her First Amended Complaint. Dkt. 27 (“FAC”). On August 10, 2017, the Court approved a case management plan. Dkt. 33. On September 8, 2017, defendants answered the FAC. Dkt. 37. On December 1, 2017, the Court referred the case to mediation, Dkt. 44, which lasted through April 2018 but was ultimately unsuccessful, see Dkt. 49. On May 3, 2018, the Court approved an amended case management plan, which allowed for an additional 90 days of fact discovery. Dkt. 52.
On February 8, 2019, after discovery, the parties filed a joint statement of undisputed
facts. Dkt. 66. On March 8, 2019, defendants filed a motion for summary judgment and the
Collyer Declaration, Dkt. 69, the Fenner Declaration, Dkt. 70, a brief in support of the motion,
Dkt. 71 (“Def. Mem.”), and a Rule 56.1 statement, Dkt. 72. On May 14, 2019, Benzinger
submitted a brief in opposition, Dkt. 83 (“Pl. Mem.”), her counterstatement to defendants’ Rule
*16
56.1 statement, Dkt. 84, and the Vinci Declaration, Dkt. 82. On June 11, 2019, defendants
submitted their reply brief, Dkt. 87 (“Def. Reply”), and the Perazzo Declaration, Dkt. 88.
II. Legal Standards Governing Motions for Summary Judgment
To prevail on a motion for summary judgment, the movant must “show[] that there is no
genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a);
see also Celotex Corp. v. Catrett
,
If the movant meets its burden, “the nonmoving party must come forward with
admissible evidence sufficient to raise a genuine issue of fact for trial in order to
avoid summary judgment.”
Jaramillo v. Weyerhaeuser Co.
,
“Only disputes over facts that might affect the outcome of the suit under the governing
law” will preclude a grant of summary judgment.
Anderson v. Liberty Lobby, Inc.
,
*17
In cases that involve claims of discrimination or retaliation, courts must use “an extra
measure of caution” in determining whether to grant summary judgment “because direct
evidence of discriminatory intent is rare and such intent often must be inferred from
circumstantial evidence found in affidavits and depositions.”
Schiano v. Quality Payroll Sys.,
Inc.
,
III. Discussion
Benzinger brings claims of discrimination and hostile work environment under the NYSHRL and the NYCHRL. Benzinger also brings claims of retaliation under the NYSHRL, the NYCHRL, the FLSA, and the NYLL. The Court addresses these claims in turn, and then addresses whether Litasco can be subject to liability in this case.
A. Discrimination and Hostile Work Environment Claims 1. NYSHRL Discrimination
Defendants move for summary judgment as to Benzinger’s seventh cause of action, which alleges national origin discrimination in violation of the NYSHRL.
Under the NYSHRL, it is “an unlawful discriminatory practice” for an employer, based
on an individual’s race, color, or sex, “to discriminate against such individual in compensation or
in terms, conditions or privileges of employment.” N.Y. State Exec. Law § 296(1)(a). NYSHRL
*18
discrimination claims are governed by the familiar burden-shifting framework set forth in
McDonnell Douglas Corp. v. Green
,
If the plaintiff can demonstrate a
prima facie
case, “a presumption arises that more likely
than not the adverse conduct was based on the consideration of impermissible factors.”
Vega v.
Hempstead Union Free Sch. Dist.
,
If the employer satisfies that burden, the presumption of discriminatory intent drops
away, and “the plaintiff must establish, by a preponderance of the evidence, that the employer’s
justification is a pretext for discrimination.”
Lenzi
,
a. Prima Facie Case For purposes of this motion, defendants do not dispute that Benzinger can establish the first two elements of a prima facie case: (1) that, as a self-identified American of German descent, Benzinger is a member of a protected class; and (2) that she was qualified for the position of Executive Assistant when she was hired in March 2013. Def. Mem. at 7. Defendants instead argue that Benzinger has not demonstrated the last two elements, because she has failed to show that (3) she suffered an adverse employment action, or (4) the circumstances gave rise to an inference of discrimination. See id. at 7–12. The Court agrees.
i. Lack of an Adverse Employment Action
An adverse employment action is a “‘materially adverse change’ in the terms and
conditions of employment.”
Sanders v. N.Y.C. Human Res. Admin.
,
“Subjecting an employee to unequal pay can, of course, constitute a materially
adverse employment action.”
Humphries v. City Univ. of N.Y.
, No. 13 Civ. 2641 (PAE),
Here, Benzinger appears to raise four theories of adverse action, all of which rely on a comparison to purportedly Russian employees. Specifically, she argues that:
[T]he record belies (sic) that [Benzinger]: (i) was afforded a significantly less allocation in her profit sharing distribution and annual additional allocations for the year ending 2014 than her comparator Inga Bogutska; (ii) observed Russian employees being promoted at a higher rate than non-Russian employees; (iii) was denied professional development opportunities while Russian employees were afforded more professional opportunities; and (iv) afforded additional perks not similarly extended to Plaintiff or other non-Russian employees.
Pl. Mem. at 8.
Benzinger’s first theory is, in fact, belied by the record. Bogutska—who was essentially demoted when Benzinger was hired as executive assistant and who Benzinger sometimes managed and supervised—simply was not better compensated more than Benzinger. Even *21 assuming, arguendo , that Bogutska is Russian—an assumption for which the record provides virtually no support—Benzinger earned almost $12,000 more annually in base salary and received $2,500 more in discretionary bonus in 2014 than Bogutska. Def. 56.1 ¶¶ 30–34. It is undisputed that Benzinger’s total earned compensation in 2014, which the parties treat as the key year for comparison, was $14,370 greater than Bogutska’s. Id. ¶ 35.
Benzinger suggests that Bogustka received significantly greater profit-sharing allocations and “annual additions.” But the record is clear that profit sharing allocations are distributed rigidly and non-discretionarily, varying as a function of base salary and months of eligibility. See id. ¶¶ 13, 37. Benzinger received a slightly smaller profit distribution in 2014 than Bogutska solely because Benzinger only became eligible for a pro-rated distribution on April 29, 2014, after one year of service, whereas the longer-tenured-but-lower-paid Bogutska was eligible for the full year. Id. ¶¶ 13–14, 36–37. Moreover, as reviewed above, “annual additions” are not a separate category of compensation, but are the sum of Lukoil’s profit sharing plan distribution to an employee plus each employee’s own elective deferral to his or her 401K plan. See supra page 6 & note 5. On this record, no reasonable jury could find that Benzinger received lesser compensation than her purportedly Russian comparator, Bogutska.
Benzinger’s remaining theories of adverse action—relating to the promotion, professional
development, and travel purportedly available to Russian employees—are also easily put to one
side, because they do not find support in the record. Drawing all inferences in Benzinger’s
favor, Bogutska, Yuri, Anya, and Akinshina all potentially have at least some Russian ancestry.
[12]
*22
Of these, only Bogutska worked in the same group as Benzinger and had similar
responsibilities and qualifications. However, there is no evidence in the record, and Benzinger
does not appear to argue, that Bogutska received superior perks and career advancement; such a
lack of evidence is unsurprising given that Bogutska was essentially demoted via the hiring of
Benzinger. Yuri and Anya worked in operations with entirely different roles and responsibilities
from Benzinger.
See
Benzinger Tr. at 78–83. The operations department provides support to
Lukoil’s traders, and personnel in the department are involved in technical, complex matters
involving Lukoil’s supply chain, requiring specific training for their duties and responsibilities.
Perazzo Decl. ¶¶ 18–20. Moreover, despite ample discovery, the record is silent as to the
circumstances surrounding Yuri and Anya’s alleged promotions, their qualifications, and the
length of their tenures at Lukoil.
See generally
Benzinger Tr. at 76–86.
[13]
The record is similarly
silent as to Akinshina. Even if it were not, Akinshina is the head of human resources at Litasco,
whereas Benzinger was an executive assistant at Lukoil. The treatment of Yuri, Anya, and
Akinshina thus cannot establish an adverse employment action, or an inference of discrimination,
since they are not similarly situated to Benzinger in all material respects.
See, e.g.
,
Zuffante v.
Elderplan, Inc.
, No. 02 Civ. 3250 (WHP),
Benzinger, in a footnote, notes that a hostile work environment can itself constitute an
adverse employment action.
See
Pl. Mem. at 9 n.3. To prevail on a hostile work environment
claim under the NYSHRL, a plaintiff must show: “[1] that the harassment was sufficiently severe
or pervasive to alter the conditions of the victim’s employment and create an abusive working
environment, and [2] that a specific basis exists for imputing the objectionable conduct to the
employer.”
Alfano v. Costello
,
Courts evaluate whether an environment is “hostile” or “abusive” by examining the
totality of the circumstances, including “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.” at 23. To prevail, a plaintiff
must demonstrate either that a single incident was extraordinarily severe, or that a series of
incidents were “sufficiently continuous and concerted in order to be deemed pervasive.”
Perry v.
Ethan Allen, Inc.
,
Benzinger has not identified any offensive comments or conduct that could support the claim that she was subject to any discriminatory harassment whatsoever, much less sufficiently pervasive or severe conduct or comments to establish a hostile or abusive work environment. This theory of adverse employment action—and employment discrimination—therefore fails too.
ii. No Inference of Discrimination
To state a
prima facie
claim of discrimination, the adverse action must also be made in
circumstances giving rise to an inference of discrimination. The facts required to meet this
element of the
prima facie
case will “inevitably vary in different employment discrimination
cases.”
McGuinness v. Lincoln Hall
,
A plaintiff may raise an inference of discriminatory motivation “by showing that the
employer . . . treated him less favorably than a similarly situated employee outside his protected
group.”
Graham
,
Here, Benzinger relies on the same four theories of adverse action as circumstantial
evidence of discrimination in the form of “more favorable treatment of employees not in the
protected group.” Pl. Mem. at 10 (quoting
Littlejohn
,
Notably, it is undisputed that the vast majority of Lukoil’s workforce is non-Russian; that none of the three managing directors who were in charge during Benzinger’s tenure at Lukoil were of Russian descent—Reynolds and Rodilosso are American, and Fenner is British; that the sole member of the Lukoil board of directors during that time, Bullock, is British; and that Benzinger was replaced by Charles, an American. Def. 56.1 ¶¶ 59, 61–63. Benzinger does not claim, and the record does not suggest, that anyone made invidious comments or that statistical evidence supports her contentions. In the end, Benzinger is left only with her conclusory allegations that she was treated differently because she was not Russian. Under the totality of the circumstances, no reasonable juror could find that the record raises even a de minimis inference of discrimination. Benzinger’s NYSHRL discrimination must fail on this ground, as well. [15]
*27 2. NYCHRL Discrimination
Defendants also move for summary judgment on Benzinger’s eighth cause of action, which alleges national origin discrimination in violation of the NYCHRL.
“[C]ourts must analyze NYCHRL claims separately and independently from any federal
and state law claims, construing the NYCHRL’s provisions broadly in favor of discrimination
plaintiffs, to the extent that such a construction is reasonably possible.”
Mihalik v. Credit
Agricole Cheuvreux N. Am., Inc.
,
To state a claim for discrimination, a plaintiff “need only show that her employer treated
her less well, at least in part for a discriminatory reason.”
Mihalik
,
In support of her NYCHRL discrimination claim, Benzinger cites the same four categories of allegedly preferential treatment afforded to purportedly Russian employees as with her NYSHRL claim. Benzinger argues that this evidence as to pay, perks, and promotions demonstrates that she was treated less well than her Russian counterparts because of a discriminatory intent. Pl. Mem. at 16.
Benzinger’s NYCHRL claim fails for the same reasons her NYSHRL claim does not
state a
prima facie
case. The evidence in the record simply would not allow a reasonable juror to
conclude that Benzinger was treated less well than any similarly situated employee of Russian
descent (or any other national origin). Benzinger’s conclusory statements to the contrary do not
suffice and cannot save her NYCHRL discrimination claim. Even under the NYCHRL,
Benzinger “may not rely on mere speculation or conjecture as to the true nature of the facts to
overcome [defendants’] motion for summary judgment.”
Hicks
,
1. NYSHRL Retaliation Defendants also move for summary judgment on Benzinger’s ninth cause of action, which alleges retaliation in violation of the NYSHRL.
The NYSHRL makes it unlawful for an employer to retaliate or discriminate against an employee because she “has opposed any practices forbidden under this article or because . . . she has filed a complaint, testified or assisted in any proceeding under this article.” N.Y. Exec. Law § 296(7).
Like discrimination claims, retaliation claims under the NYSHRL are analyzed using the
McDonnell Douglas
burden-shifting framework.
See Zann Kwan v. Andalex Grp. LLC
,
“The term ‘protected activity’ refers to action taken to protest or oppose statutorily
prohibited discrimination.”
Cruz v. Coach Stores, Inc.
,
“Mere complaints of unfair treatment . . . are not protected speech” in the employment
retaliation context, and the “onus is on the speaker to clarify to the employer that he is
complaining of unfair treatment due to his membership in a protected class and that he is not
complaining merely of unfair treatment generally.”
Brantman v. Fortistar Capital, Inc.
, No. 15
Civ. 4774 (NSR),
The standard for an adverse action in the retaliation context, unlike the discrimination
context, “is not limited to discriminatory actions that affect the terms and conditions of
employment.”
Vega
,
The final element—a causal connection between the protected activity and the adverse
action—may be proved either “directly, through evidence of retaliatory animus directed against
the plaintiff by the defendant,” or “indirectly, by showing that the protected activity was
followed closely by the discriminatory treatment, or through other circumstantial evidence such
as disparate treatment of fellow employees who engaged in similar conduct.”
Hicks
, 593 F.3d
at 170 (quoting
Gordon v. N.Y.C. Bd. of Educ.
,
If the
prima facie
burden is met, “a ‘presumption of retaliation’” arises, which the
employer “may rebut by ‘articulating a legitimate, non-retaliatory reason for the adverse
employment action.’”
Ya-Chen Chen v. City Univ. of N.Y.
,
Here, Benzinger has failed to demonstrate that she was engaged in protected activity known to her employer, that she was subjected to an adverse employment action, or that there was a causal connection between her protected activity and that action.
a. No Protected Activity Known to Employer Benzinger did not engage in any protected activity related to national origin discrimination that was known to her employer.
*33 Benzinger argues that the record reflects that she verbally complained of discrimination to Diehl and Fenner, and that Fenner admitted at his deposition that he was aware that Benzinger had complained of discrimination. Pl. Mem. at 12–13. With regard to the latter argument, as reviewed above, Benzinger misstates Fenner’s testimony: Fenner testified unambiguously that he was aware of Benzinger’s complaints regarding FLSA misclassification and that she felt like she was not part of a team, but that Benzinger had never complained about discrimination. Fenner Tr. at 35–37, 74–75.
As to the former, when asked at her deposition whether she had ever complained to Fenner and Diehl about her “concerns that Russian employees were being treated better than [she was],” Benzinger answered, “Yes.” Benzinger Tr. at 105. When asked more specifically about the context of her complaint, Benzinger testified that she had discussed the issue of unfair treatment at her fall 2014 meeting with Fenner and Diehl. at 105–08. She explained that she “had a conversation with Simon Fenner and Jennifer Diehl regarding [her] compensation and general treatment.” Id. at 106. Benzinger testified that she told Fenner and Diehl that she “believe[d] it was unfair that [Bogutska] was compensated more [than Benzinger was].” Id. at 107. When asked about to be more specific about the complaints she made, for which she believed she was retaliated against, Benzinger answered, “[s]pecifically, the complaint for payment of overtime and that Inga was paid more than I was.” Id. at 196. Notably, the email Benzinger sent Diehl and Fenner after the key meeting, which by its terms was a “summation of our recent meeting,” did not mention discrimination, favoritism, or the treatment of employees of Russian descent relative to others. Collyer Decl., Ex. H.
Under these circumstances, no Lukoil employee was actually aware or could have
reasonably understood Benzinger’s complaints about her own overtime and Bogutska’s pay—
*34
made in the context of a meeting that Benzinger had sought to ask for a raise and increased
responsibilities—to be “directed at conduct prohibited” by the NYSHRL,
Galdieri-Ambrosini
,
b. No Causally Connected Adverse Employment Action As with her discrimination claims, Benzinger relies upon the same four areas of preferential treatment ostensibly given to Russian employees—relating to compensation, promotion, and perks—as purported evidence of adverse employment action and causation. See Pl. Mem. at 13–14 (“To the extent that Defendants are arguing that Plaintiff did not suffer any [retaliatory] adverse employment action, such argument should be rejected for substantially the same reasons delineated above.” (citing Pl. Mem. at 7–10)).
For the same reasons as reviewed in connection with Benzinger’s NYSHRL
discrimination claim, there is no triable issue of fact as to whether the treatment of the “Russian”
employees was an adverse employment action. And, even if there was an adverse employment
action, there is no causal connection between any alleged protected activity and the benefits
supposedly afforded to employees of Russian heritage.
See Butler v. Raytel Med. Corp.
,
Although Benzinger’s brief does not point to any other retaliatory adverse actions under the NYSHRL, for avoidance of doubt, the Court addresses potential additional retaliatory actions to which Benzinger alluded during her deposition. In particular, when asked to list all forms of retaliation she “claim[s] occurred,” Benzinger replied that she: (i) “was paid less . . . [t]han Inga [Bogutska]”; (ii) was “delegated more work [than Inga]”; (iii) was “[n]ot . . . included on planning conversations”; and (iv) “was removed from projects.” Benzinger Tr. at 196–97. None of these can support her claim.
First, as to Bogutska’s pay, the Court has already addressed at length the infirmities of
Benzinger’s arguments. And the failure of her retaliation claim, to the extent based on
Bogutska’s pay, is compounded by the fact that the purported pay disparity preceded any alleged
protected activity in which Benzinger engaged, and remained unchanged thereafter.
See
Melman
,
Second, Benzinger’s “‘allegation regarding additional work is far too conclusory to
constitute an adverse employment action’ because she alleges neither ‘the nature of the
additional work,’ nor ‘that the additional work was outside of her general responsibilities,’ nor
‘that there was a radical change in the nature of her work responsibilities.’”
Augustine v. Cornell
Univ.
, No. 14 Civ. 7807 (JPO),
Here, when asked what additional work she had been delegated after her complaint,
Benzinger answered vaguely “[c]alendar management, travel, presentation help.” Benzinger Tr.
at 199. But Benzinger’s offer letter from Lukoil, which she signed to accept employment,
explained that “you will be responsible for effectively accomplishing the following duties,” and
listed eight sets of key duties. Collyer Decl., Ex. A. The first entry on the list was “[c]alendar
management: [m]eetings, [t]ravel [a]rrangement, [a]ction [l]ist, etc.”
Id.
The fifth was
“[o]rganize current and create new Power Point presentations.” The NYSHRL requires that,
*37
to qualify as adverse employment action, the additional work duties imposed must constitute
more than just “an alteration of job responsibilities.”
Shultz
,
Third, Benzinger testified that she was not included in what she believed were planning
conversations. When asked what meetings and planning conversations she had been excluded
from, Benzinger testified, “I don’t know. I wasn’t invited.”
Id.
at 199. Benzinger’s speculation
that there were meetings to which she “would have been invited in the past,”
id.
, is, without
more, insufficient to avoid summary judgment for the defense.
Gupta
,
Fourth, as to her removal from projects, Benzinger specified that she was removed from human resources’ “visa coordination.” Benzinger Tr. at 197. Crucially, Benzinger herself did not believe this removal had anything to do with complaints of discrimination. Rather, she testified that the causal connection was that “I complained about their HR practices in relation to paying overtime and therefore I believe I was removed from HR projects.” By Benzinger’s own admission, her removal from HR visa coordination, if in fact retaliatory, related to her complaint about overtime practices, not discrimination.
Thus, no reasonable juror could find that Lukoil subjected Benzinger to a materially adverse employment action or that there was a causal connection between any protected activity—of which there was none known to Lukoil—and such an action. The Court therefore grants summary judgment for defendants on Benzinger’s NYSHRL retaliation claim.
2. NYCHRL Retaliation Defendants also move for summary judgment as to Benzinger’s tenth cause of action, for retaliation in violation of the NYCHRL.
The NYCHRL prohibits employers from “retaliat[ing] or discriminat[ing] in any manner
against any person because such person has . . . opposed any practice forbidden under this
chapter.” N.Y.C. Admin. Code § 8-107(7). The NYCHRL imposes an identical standard to that
of the NYSHRL, “except that the plaintiff need not prove any ‘adverse’ employment action;
instead, [s]he must prove that something happened that would be reasonably likely to deter a
person from engaging in protected activity.”
Leon v. Columbia Univ. Med. Ctr.
, No. 11 Civ.
8559 (NSR),
NYCHRL claims must be reviewed considering the totality of the circumstances,
Mihalik
,
Even under this more liberal standard, the record here could not support either an
inference of retaliation or a finding that defendants did anything reasonably likely to deter a
person from engaging in protected activity.
See, e.g.
,
Augustine
,
3. FLSA and NYLL Retaliation Defendants also move for summary judgment as to Benzinger’s fifth and sixth claims, for retaliation in violation of the FLSA and NYLL, respectively.
The FLSA provides that it is “unlawful for any person . . . to discharge or in any other manner discriminate against any employee because such employee has filed any complaint or instituted or caused to be instituted any proceeding under or related to [the FLSA].” 29 U.S.C. § 215(a)(3). The Court evaluates FLSA and NYLL retaliation claim under the same McDonnell Douglas burden-shifting framework.
First, a plaintiff must establish a
prima facie
case of retaliation by showing “(1)
participation in protected activity known to the defendant, like the filing of an FLSA [or NYLL]
lawsuit; (2) an employment action disadvantaging the plaintiff; and (3) a causal connection
between the protected activity and the adverse employment action.”
Mullins v. City of New York
,
For a plaintiff to show she participated in a “protected activity known to the defendant,”
id.
at 53, her “complaint must be sufficiently clear and detailed for a reasonable employer to
understand it, in light of both content and context, as an assertion of rights protected by the
statute and a call for their protection,”
Greathouse v. JHS Sec., Inc.
,
An employment action disadvantages an employee if “it well might have ‘dissuaded a
reasonable worker from making or supporting [similar] charge[s].’”
Mullins
,
Defendants argue that Benzinger was insufficiently clear in asserting her rights under the FLSA. Although defendants concede that Benzinger raised the issue of unpaid overtime as a result of FLSA misclassification, they argue that other communications of hers “muddy[] the waters significantly.” Def. Mem. at 17. In particular, after a series of emails in which Fenner *42 committed to “work with [Diehl] to determine if [Benzinger] should be a non-exempt employee,” Collyer Decl., Ex. I at 2, Benzinger eventually responded that “[t]he exempt vs. non[-exempt] concept is not an angle I wish to pursue due to the nature of the business and your concept of flexibility and quality of life work balance,” id. at 1.
On this point, the Court holds with Benzinger—the evidence of a qualifying complaint is
sufficient. A reasonable jury could find that, by expressing her overtime compensation
complaints in terms like “exempt” and “misclassification” which inherently relate to her
classification under the relevant labor statutes, Benzinger went beyond “abstract grumblings” or
“amorphous expressions of discontent related to wages and hours”; a jury could find that
Benzinger made a sufficiently clear and detailed articulation of FLSA- and NYLL-related
grievances.
See Vasto v. Credico (USA) LLC
, 15 Civ. 9298 (PAE),
Defendants also argue that Benzinger has failed to adduce evidence sufficient to establish
an employment action that disadvantaged her. Def. Mem. at 18–21. Benzinger testified that she
was removed from human resources projects—specifically, from “visa coordination” duties—
shortly after her complaint to Fenner and Diehl about her misclassification as exempt. Benzinger
Tr. at 197.
[18]
Benzinger testified that “I complained about their HR practices in relation to paying
overtime and therefore I believe I was removed from HR projects.”
Id.
Defendants argue that
*43
Benzinger’s removal from HR projects is not actionable “because [it] did not give rise to a
materially adverse change in the terms and conditions of Plaintiff’s employment.” Def. Mem.
at 20. But the cases cited by defendants in support of this proposition deal with
discrimination
,
not
retaliation
claims. For FLSA and NYLL retaliation claims, a plaintiff need show only that
the action taken by her employer “well might have ‘dissuaded a reasonable worker from making
or supporting [similar] charge[s].’”
Mullins v. City of New York
,
C. Joint Employer Liability
Finally, defendants seek summary judgment on all claims against Litasco, on the grounds that Litasco was not Benzinger’s employer. Benzinger argues that Litasco can be held liable under a theory of joint employer liability.
1. Legal Standard for Being an “Employer”
The FLSA defines an “employer” as “any person acting directly or indirectly in the
interest of an employer in relation to an employee.” 29 U.S.C. § 203(d). The Supreme Court has
emphasized that this is an expansive definition with “striking breadth.”
Nationwide Mut. Ins. Co.
v. Darden
,
“When it comes to ‘employer’ status under the FLSA, control is key.”
Lopez v. Acme
Am. Envtl. Co., Inc.
, No. 12 Civ. 511 (WHP),
Courts have identified several sets of factors relevant to the economic reality inquiry. In
its narrowest form, this analysis evaluates whether an alleged employer exercised formal control,
and at its broadest it evaluates functional control. Accordingly, “the exercise of formal control
over employees is sufficient, but not necessary, to adequately allege an employer relationship.”
Xiaoyan Liu v. Canteen 82 Inc.
, No. 17 Civ. 7862 (KPF),
a. Formal Control
When evaluating formal control, courts consider “whether the alleged employer (1) had
the power to hire and fire the employees, (2) supervised and controlled employee work schedules
or conditions of employment, (3) determined the rate and method of payment, and (4) maintained
employment records.”
Carter
,
b. Functional Control
The Second Circuit has identified a number of factors pertinent to determining whether a
person or entity, even if lacking formal control, exercised “functional control” over an employee.
In
Zheng v. Liberty Apparel Co. Inc.
,
(1) whether [alleged employers’] premises and equipment were used for the
plaintiffs’ work; (2) whether the [subcontractors] had a business that could or did
shift as a unit from one putative joint employer to another; (3) the extent to which
plaintiffs performed a discrete line-job that was integral to [alleged employers’]
process of production; (4) whether responsibility under the contracts could pass
from one subcontractor to another without material changes; (5) the degree to which
the [alleged employers’] or their agents supervised plaintiffs’ work; and (6) whether
plaintiffs worked exclusively or predominantly for the [alleged employers].
at 71–72.
*46
c. Single-Integrated-Enterprise Liability
Finally, in the context of affiliated entities within a corporate family, courts in this
District have increasingly applied another test: the single-integrated-enterprise test.
See,
e.g.
,
Morales v. Anyelisa Rest. Corp.
, No. 18 Civ. 7641 (JGK),
The single employer doctrine holds multiple legally distinct entities—
e.g.
, “parent and
wholly-owned subsidiary corporations, or separate corporations under common ownership and
management”—liable as a single employer when the entities are a single integrated enterprise.
Arculeo v. On-Site Sales & Mktg., LLC
,
The doctrine “applies in ‘extraordinary circumstances’ where plaintiff demonstrates
‘sufficient indicia of an interrelationship between the immediate corporate employer and the
affiliated corporation to justify the belief on the part of an aggrieved employee that the affiliated
corporation is jointly responsible for the acts of the immediate employer.’”
Morangelli v.
Chemed Corp.
,
2. Analysis
Benzinger here argues only that Lukoil and Litasco acted as a single integrated enterprise
with regard to her employment.
See
Pl. Mem. at 4–6 (addressing only single employer doctrine);
Def. Reply at 2 (“The parties generally agree on the standard applicable to assessing joint
employer liability between a corporate parent and subsidiary. . . the single employer
doctrine. . . .”). Accordingly, the Court applies only that test, whose outcome here applies
equally to all of Benzinger’s claims against Litasco.
See Juarez
,
Here, the record could not support a finding that Lukoil and Litasco were a single integrated enterprise. Litasco and Lukoil are separate corporate entities: Litasco is the parent *48 company for Lukoil and other subsidiaries worldwide. Def. 56.1 ¶¶ 65–66, 69. The companies operate in separate countries, out of separate offices, with separate staff performing company- specific roles. Fenner Decl. ¶ 6. Lukoil is managed by Fenner, who reports to the sole member of Lukoil’s board of directors, Bullock. Def. 56.1 ¶ 70. Throughout her employment, Benzinger reported directly to Lukoil’s managing directors. Id. ¶¶ 15–17.
Lukoil and Litasco each maintain separate human resources departments to handle employee issues that arise in each respective company. Fenner Decl. ¶ 8. Lukoil’s human resources department is run out of the New York office by Perazzo, and, before Perazzo’s employment, Lukoil utilized the services of an outside human resources coordinator, Diehl, who did not provide those services to Litasco. Id. In contrast, Litasco’s human resources department is run by Akinshina, who is in Geneva. At all relevant times, Lukoil, not Litasco, paid Lukoil’s employees’ wages. Def. 56.1 ¶ 79.
Benzinger makes three main arguments why Lukoil and Litasco ostensibly acted as a single integrated enterprise. First, Benzinger notes that Lukoil’s profits are sent to Litasco, Pl. Mem. at 6, and that Fenner testified that teams at Lukoil have “very tight relationships with” teams at Litasco and Litasco’s other subsidiaries. Fenner Tr. at 16. Second, Benzinger notes her testimony that she considered Litasco’s Akinshina to be her supervisor on certain projects, including: “performance management training,” which entailed “organizing the paperwork of the performance reviews” for which the managing directors were responsible; “[g]oal settings,” which “was about how to set goals for your role according to the Litasco model”; and “[o]rganizing visas.” Benzinger Tr. at 14, 19–21. Third, Benzinger refers to the Litasco “Competency Model,” which the Lukoil managing directors sent, along with a Lukoil “Performance Management Policy,” to all Lukoil employees on January 1, 2014.
As a matter of law, these innocuous facts cannot support a finding of “extraordinary
circumstances” so as to justify application of the single employer doctrine. A wholly-owned
subsidiary’s distribution of profits to its parent corporation does not indicate uncommonly close
corporate control.
See Velez v. Novartis Pharms. Corp.
,
The record is thus insufficient to raise a question of fact as to whether Litasco was Benzinger’s employer for purposes of any of the claims in this case. This requires entry of summary judgment in favor of Litasco on all claims against it.
CONCLUSION
For the foregoing reasons, the Court grants defendants’ motion for summary judgment on all of Benzinger’s NYSHRL and NYCHRL claims and dismisses Litasco as a party. The Court, however, otherwise denies defendants’ motion for summary judgment.
This case is now ready to proceed to trial on the remaining claims, all of which are under the FLSA and NYLL. The Court directs the parties to confer, and, by March 30, 2020, to file a joint letter apprising the Court of the anticipated length of the trial. Barring notice that the case is on track for a prompt settlement, the Court expects then to set a schedule requiring submissions of a Joint Pretrial Order and the other required pretrial filings set forth in the Court’s Individual Rules.
The Court respectfully directs the Clerk of Court to terminate the motion pending at docket 69.
SO ORDERED.
____________________________ Paul A. Engelmayer United States District Judge Dated: March 20, 2020
New York, New York
Notes
[1] Benzinger also brings claims for failure to pay overtime and failure to furnish proper wage statements as required under the FLSA and NYLL. Defendants do not seek summary judgment as to these claims.
[2] The Court draws its account of the underlying facts from the parties’ respective submissions on the motion for summary judgment, including: the parties’ joint statement of undisputed facts, Dkt. 66 (“JSF”); defendants’ Local Rule 56.1 statement, Dkt. 72 (“Def. 56.1”); plaintiff’s Rule 56.1 counter-statement, Dkt. 84 (“Pl. 56.1”); the declaration of Adam E. Collyer in support of defendants’ motion, Dkt. 69 (“Collyer Decl.”), and attached exhibits; the declaration of Simon Fenner in support of defendants’ motion, Dkt. 70 (“Fenner Decl.”), and attached exhibits; the declaration of Gabrielle M. Vinci in opposition to the motion, Dkt. 82 (“Vinci Decl.”), and attached exhibits; and the declaration of Glory Perazzo in support of defendants’ motion, Dkt. 88 (“Perazzo Decl.”), and attached exhibits. Citations to a party’s 56.1 statement incorporate the evidentiary materials cited therein. When facts stated in a party’s 56.1 statement are supported by testimonial, video, or documentary evidence and not denied by the other party, or denied by a party without citation to conflicting admissible evidence, the Court finds such facts to be true. See S.D.N.Y. Local Civil Rule 56.1(c) (“Each numbered paragraph in the statement of material facts set forth in the statement required to be served by the moving party will be deemed to be admitted for purposes of the motion unless specifically controverted by a correspondingly numbered paragraph in statement required to be served by the opposing party.”); id. Rule 56.1(d) (“Each statement by the movant or opponent . . . controverting any statement of material fact[] must be followed by citation to evidence which would be admissible, set forth as required by Fed. R. Civ. P. 56(c).”).
[3] At her deposition, Benzinger testified that “[the managing directors] wanted me to help [Bogutska] manage and supervise her work.” Vinci Decl., Ex. 4 (“Benzinger Tr.”) at 68. When asked whether she considered herself Bogutska’s supervisor, Benzinger replied, “[o]n projects or helping her, de facto yes.” Benzinger Tr. at 69. Drawing all inferences in Benzinger’s favor, the Court discerns a technical dispute as to Benzinger’s status as a manager or supervisor, but the record is unambiguous that Benzinger played at least some supervisory role with respect to Bogutska, at the request of the managing directors.
[4] Although Benzinger’s start date of April 29, 2013, and the Profit Sharing Plan’s eligibility and proration rules are undisputed, Benzinger quibbles that the exhibit defendants cite in support of this proposition demonstrates only the amount of Benzinger’s distribution, not any explanation of that amount. However, each individual fact is supported by the record and is undisputed. See Def. 56.1 ¶¶ 13 (Profit Sharing Plan rules); 14 (start date); 37 (amount of Benzinger’s 2014 distribution). Accordingly, this fact is undisputed.
[5] Benzinger notes that the document defendants cite to demonstrate Benzinger and Bogutska’s distributions under the Profit Sharing Plan also contains a column with the header “Annual Additions.” Pl. 56.1 ¶ 37.1–2 (citing Vinci Decl., Ex. 6). This column shows that Benzinger received $11,326.47 in “Annual Additions,” while Bogutska received $21,115.64. Id. As Lukoil’s manager of human resources explained, however, “annual additions” are not a separate category of compensation, but rather are the sum of Lukoil’s Profit Sharing Plan distribution to an employee plus that employee’s elective deferrals to his or her 401K retirement plan for that year. See Perazzo Decl. ¶¶ 8–16. In other words, in 2014, Bogutska received a distribution of $15,265.16, based on a full year of profit-sharing eligibility, and deferred $5,850.48 of her compensation to her 401K, for a total of $21,115.64 in “Annual Additions.” ¶¶ 12–14. Benzinger, in turn, received a distribution of $10,405.68, based on eight months of profit-sharing eligibility, and deferred $929.79 of her compensation to her 401K, for a total of $11,326.47 in “Annual Additions.” Id. ¶¶ 9–11.
[6] Benzinger disputes the extent to which this email was “a total and all-encompassing summary of the sum and substance of the referenced meeting.” Pl. 56.1 ¶ 41. In particular, and drawing all inferences in Benzinger’s favor, Benzinger also complained that she had been misclassified as an exempt employee, that she was entitled to earn overtime compensation, and that she believed she was being compensated less than Bogutska, which Benzinger viewed as unfair treatment. Id. ¶¶ 41, 42.1, 42.4. Benzinger also testified that she continued to pursue these issues thereafter, and later requested to be paid overtime. ¶ 42.6–7.
[7] In that regard, Benzinger developed an aspirational job description that she forwarded to both Fenner and Diehl, in which she referred to herself as the “office ninja.” Def. 56.1 ¶ 49.
[8] Benzinger purports to dispute this fact, as well as the assertion that only two out of 48 Lukoil employees held Russian passports. As to both facts, Benzinger cites only her deposition testimony that she believed other employees—Bogutska, employees named Yuri and Anya who worked in operations, and a Litasco employee named Irina Akinshina—were “of Russian descent and/or ancestry.” Pl. 56.1 ¶ 59. Assuming Benzinger’s belief were admissible evidence of the employees’ national origin—and correct—that would make only five out of 48 Lukoil employees, and not necessarily any of Fenner’s direct reports, Russian. Accordingly, these facts are, at most, partially disputed.
[9] Benzinger believes that Bogutska is Russian or of Russian descent, Benzinger Tr. at 76, 78, although she concedes that Bogutska “could be” Ukrainian, id. at 87. In addition to the evidence cited in defendants’ 56.1 statement, Bogutska’s Ukrainian background is confirmed by her resume, which states that Bogutska attended the Ukraine Polytechnical Institute in Kiev and the Ukraine School of Art in Kiev. Collyer Decl., Ex. P. Drawing all inferences in Benzinger’s favor, it is possible that Bogutska is of Russian descent.
[10] Benzinger further testified that she “might have made a comment regarding the subject [of discrimination]” to Fenner “[c]asually in the summer of 2014,” and that she raised the issue of Bogutska’s compensation at her 2014 meeting with Fenner and Diehl. Benzinger Tr. at 105–08. Her email summary of that meeting, however, does not mention discrimination, favoritism, or Russians. Collyer Decl., Ex. H.
[11] It is unsurprising that Fenner, while interviewing for the top executive position at a subsidiary company, had interviews with representatives of that subsidiary’s parent.
[12] Yulia, the intern, was also Russian, although Benzinger does not appear to claim that Yulia’s intern experience is relevant to her theories of adverse action or an inference of discrimination.
[13] Benzinger’s only concrete allegation as to “opportunities” or “perks” relates to Anya, who Benzinger testified was “invited to more trainings and was able to travel more than others in the operations department.” Benzinger Tr. at 83–84. But, upon questioning, Benzinger conceded that she did not know when or how often Anya travelled or whether other members of the operations department were given the same opportunities. at 84–85. Most importantly, Benzinger did not herself work in operations. No reasonable juror could find that Lukoil took adverse action against Benzinger on the basis that a purportedly Russian member of a different department travelled and attended trainings in accordance with the needs of that department.
[14] Benzinger has not made a failure-to-promote claim, but, for avoidance of doubt, such a claim
would be unsustainable on this record. A failure by an employer to promote an employee can
constitute an adverse employment action.
Mills v. S. Conn. State Univ.
,
[15] Accordingly, the Court need not reach the legitimate non-discriminatory reasons proffered by
defendants for their alleged actions. Defendants note in this vein that Lukoil’s review of
Benzinger’s salary, based on benchmarking data from Lukoil’s outside expert, concluded that
Benzinger’s salary was above the upper bound for her role as Executive Assistant. Def. 56.1
¶ 45; Fenner Decl. ¶ 12. Nor need the Court consider Benzinger’s argument that the evidence to
which she pointed to show adverse action and an inference of discrimination would also show
pretext.
See
Pl. Mem. at 11. The Court notes, however, that Benzinger would need to present
“sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons
proffered by the defendant[s] were false, and that more likely than not discrimination was the
real reason for the employment action.”
Forte v. Liquidnet Holdings, Inc.
,
[16] Benzinger also attempts to establish her NYCHRL discrimination claim via a hostile work
environment theory, again citing the same four categories of ostensibly preferential treatment,
which are unsupported by the record. Pl. Mem. at 16. Benzinger argues that, under the more
liberal standard of the NYCHRL, “even a single incident can suffice to carry Plaintiff’s burden.”
(citing
Mihalik
,
[17] The Second Circuit has yet to decide explicitly whether the but-for causation standard applies
to claims under the NYSHRL, as it does under Title VII.
See Holcomb v. State Univ. of N.Y. at
Fredonia
,
[18] Benzinger’s other claimed adverse actions are insufficient for the reasons explained above.
[19] The statutory standard for employer status under the NYLL is nearly identical to the FLSA’s.
Compare
29 U.S.C.A. § 203(d) (“‘Employer’ includes any person acting directly or indirectly in
the interest of an employer in relation to an employee . . . .”),
with
N.Y. Lab. Law § 190(3)
(“‘Employer’ includes any person, corporation, limited liability company, or association
employing any individual in any occupation, industry, trade, business or service.”). Courts in
this District have regularly applied the same tests to determine, under the FLSA and the NYLL,
whether entities were joint employers.
See Ocampo v. 455 Hosp. LLC
, No. 14 Civ. 9614
(KMK),
[20] In
Hart
, this Court declined to apply this test in the FLSA context, noting that the Second
Circuit had yet to address the applicability of the test to FLSA cases, that only one court in this
District appeared to have applied the doctrine to FLSA cases, and that the test would not alter the
FLSA inquiry at hand.