OPINION & ORDER
Plaintiffs Jennifer Vuona, Sara Hudson, Julia Kuo, and Catherine Wharton (collectively, “Plaintiffs”) bring suit against defendants Merrill Lynch & Co., Inc., Merrill Lynch, Pierce, Fenner & Smith, Inc., and Bank of America Corporation (collectively, “ML”), alleging that their employment was unlawfully terminated on the basis of gender, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e et seq.; the New York State Human Rights Law (“NYSHRL”), N.Y. Exec. L. §§ 290 et seq.; and the New York City Human Rights- Law (“NYCHRL”), N.Y. City Admin. Code §§ 8-101 et seq. Vuona also claims that she was unlawfully retaliated against for opposing discrimination proscribed by these laws. ML moves for summary judgment on all claims. For the following reasons, ML’s motion is granted as to Plaintiffs’ Title VII and NYSHRL claims, and the Court declines to exercise supplemental jurisdiction as to Plaintiffs’ NYCHRL claims.
I. Background and Undisputed Facts
In late 2008 and early 2009, Plaintiffs were all enrolled in one of two Financial
A. The Training Programs
The PMD program was divided into three phases. Def. 56.1 ¶ 18; Pl. 56.1 ¶ 327. The first was the Trainee phase, during which FA trainees underwent initial testing and received relevant licenses if they did not already hold them. Def. 56.1 ¶ 19; Pl. 56.1 ¶ 328. At the end of this phase, the FA trainees received a “production number” which permitted them to begin bringing in business, triggering the start of Stage I of their program. Def. 56.1 ¶ 20; Pl. 56.1 ¶¶ 329, 331. During Stage I, which lasted three months in the PMD program, the FA trainees underwent further training programs while undertaking to find and serve wealth management clients. Def. 56.1 ¶¶ 21-22; Pl. 56.1 ¶ 331. The time which trainees had spent in service to ML was measured in “Length of Service” (“LOS”) months; but during the three months of Stage I, the trainees remained at all times in LOS month zero. Pl. 56.1 ¶ 331. At the end of Stage I, the FA trainees entered Stage II, which lasted 36 months. Def. 56.1 ¶ 22; Pl. 56.1 ¶ 332.
During Stages I and II, the FA trainees’ performance was measured against performance “hurdles” or “targets” which varied depending on the salary range assigned to the trainee when he or she was hired. Def. 56.1 ¶ 24; Pl. 56.1 ¶ 334. The three primary hurdles were “production credits” (“PCs”), defined as the revenue generated by the products clients purchased; “new annuitized assets,” defined as the sum of assets generating a recurring stream of revenue; and the number of new client relationships formed with households having a net worth above $250,000. Def. 56.1 ¶ 24; Pl. 56.1 ¶¶ 334-335. The FA trainees were tracked monthly and reviewed on a quarterly basis, with each trainee receiving a grade of “Met Requirements” or “Does Not Meet.” Def. 56.1 ¶ 26; Pl. 56.1 ¶ 337. During Stage I and the first 12 months of Stage II of the PMD program, the FA trainees were salaried; thereafter, they were transitioned to a reduced salary, but were eligible for incentive compensation and performance-based bonuses. Def. 56.1 1131; Pl. 56.1 ¶ 338.
B. The Plaintiffs
The four Plaintiffs all had experience in business before joining ML’s FA trainee program.
Wharton, who joined the POA program in October 2006, had been, inter alia, a business analyst at Deloitte Consulting before joining the FA trainee program. Pl. 56.1 ¶ 419. Wharton received her production number in May 2007. She had been scheduled to graduate frоm the POA program in May 2009. Id. at ¶ 421.
Kuo had spent more than a decade as a business analyst at financial firms including UBS and Merrill Lynch. Id. at ¶ 432. In November 2006, Kuo joined a FA trainee program at UBS. Def. 56.1 ¶ 111; Pl. 56.1 ¶ 433. In March 2008, Kuo moved to ML’s FA trainee program, Def. 56.1 ¶ 112; Pl. 56.1 ¶ 437; in July 2008, she entered Stage II of the PMD program. Pl. 56.1 ¶ 437.
Vuona had professional experience including as a fraud analyst for the United States Attorney’s Office for the Southern District of New York. Pl. 56.1 ¶ 448. Before joining the PMD program at ML, Vuona had been enrolled in an analogous program at Citigroup Smith Barney for approximately one year. Def. 56.1 ¶ 76; Pl. 56.1 ¶ 448. In April 2008, Vuona joined the PMD program, Def. 56.1 ¶ 77; Pl. 56.1 ¶ 450; in August 2008, she entered Stage II of the program, Pl. 56.1 ¶ 450.
Hudson had worked in the financial services industry since the 1980s, holding positions at Chemical Bank and Manufacturers Hanover Trust. Pl. 56.1 ¶ 455. Between 1994 and 2003, Hudson was a vice president at Bank of New York, where her role included generating investment management business for the bank. Id. at ¶456. Hudson, like Vuona and Kuo, had been enrolled in the FA trainee program of another bank — Morgan Stanley — before choosing to enroll in the PMD program at ML. Def.' 56.1 ¶ 141; Pl. 56.1 ¶458. In July 2008, Hudson joined the PMD program, Def. 56.1 ¶ 143; Pl. 56.1 ¶ 461; in November 2008, she entered Stage II of the program, Pl. 56.1 ¶ 461.
C. Perceived Incidents of Gender Bias During Plaintiffs’ Employment at ML
Plaintiffs complain of a number of perceived incidents of gender bias during their tenure at ML. These incidents, they contend, support the inference that their
First, Vuona alleges that she was once required to answer the telephone for Joseph Mattia, the Fifth Avenue branch manager during a portion of her tenure. Vuona Dep. 196, 207-10; Vuona Decl. ¶ 4. According to Vuona, when she asked why she was singled out for this duty, she was told that Mattia preferred that “girls” answer his phone. Vuona Dep, 203; see Roccanova Dep. 135. While she was performing this task, Vuona alleges that another supervisor, Anna Roccanova, told Vuona that she was not “perky” enough when answering Mattia’s phone. Vuona Dep. 211, 214-16.
Second, Hudson alleges that she approached another manager at the Fifth Avenue branch, Joel Meshel, seeking his assistance in following a potential lead on a substantial piece of business. Hudson Dep. 260-61, 263, 267, 277. Meshel did not assist Hudson’s effort to land the client; during their discussion, Meshel allegedly suggested that Hudson “stick to her knitting.” Id. at 266.
Third, all Plaintiffs except Hudson, who had not yet begun her tenure at ML, complain that they were invited by Mattia to a corporate event for female employees at which an author touted her book, entitled Seducing the Boys Club, which allegedly advocated that women in corporate environments use seduction to manipulate men in furtherance of their careers. Vuona Dep. 174, 179, 191; Wharton Dep. 226-27, 235; Kuo Dep. 206; Mattia Dep. 135— 136, 138; see Clark Decl. Ex. 42.
Finally, Plaintiffs allege that male employees at ML were assigned mentors more quickly than were female trainees, PI. 56.1 ¶¶ 605-608; see also Kuo Dep. 146; Kuo Decl. ¶ 5; Hudson Dep. 153, and that ML promoted “teaming” relationships, in which FAs could pool, split, or share all or some portion of accounts acquired by one or both team members, for men but not for women. Vuona Dep. 149; Kuo Dep. 234; Hudson Dep. 187-88, 190-92, 196.
D. ML’s Reduction in Force
The third and fourth quarters of 2008 saw a severe economic downturn in the American economy generally, and in the financial sector in particular. In September 2008, ML was acquired by Bank of America Corporation, although the transaction did not close until January 2009. Def. 56.1 ¶ 182; Pl. 56.1 ¶ 316. In mid-January 2009, ML’s senior management notified the branch offices, including the Fifth Avenue branch, that headcount needed to be reduced, and that there would therefore be an imminent reduction in force (“RIF”) in the FA trainee program. Roccanova Dep. 153-54; Meshel Dep. 148-49; Houston Dep. 118-19. That layoff would result in the termination of 14 FA trainees. Def. 56.1 ¶ 188; Pl. 56.1 ¶ 610.
As part of the RIF process, ML management provided the Fifth Avenue branch with two lists. Meshel Dep. 153-54; Roccanova Dep. 154, 156; Houston Dep. 179; Clark Decl. Ex. 8; Meshel Decl. ¶¶ 13-14, Ex. A. Those lists, and the branch management’s interactions with them, are critical to the resolution of this motion.
1. The “Presumptive” Layoff List
The first list was made up of FA trainees who had failed to meet certain benchmarks; this was supposed to be a “mandatory” or “presumptive” layoff list.
Three men contained on the presumptive layoff list were subsequently removed from the list after Roccanova and Meshel sought input from ML’s regional Human Resources director, Traci Kamil, and the head of the New York City region, Sabina McCarthy. Roccanova Dep. 154-58; Meshel Dep. 174-77; Meshel Decl. ¶¶ 19-21; Kamil Dep. 111-13; Houston Dep. 120-21, 128-31. Those three men had the following extenuating circumstances which Kamil, in consultation with McCarthy, determined merited their removal from the presumptive layoff list. Kamil Dep. 111— 17, 123-24, 138-39; Roccanova Dep. 158.
One man (referred to here as “JBC” for reasons of confidentiality) was removed from the list based on documented medical concerns over his fragile emotional state. Kamil Dep. 114-19; Roccanova Dep. 68, 154, 158; Meshel Decl. ¶ 21. He had been on and off medical leave and was in contact with ML’s Employee Assistance Program, designed to minister to employees in need. Kamil Dep. 114-19; Roccanova Dep. 68, 154, 158; Meshel Decl. ¶ 21. He was therefore, temporarily, spared from the presumptive layoff list. Kamil Dep. 114-19; Roccanova Dep. 68, 154, 158; Meshel Decl. ¶ 21. JBC’s continued tenure at ML was, however, very brief; in April 2009, he resigned. Kamil Dep. 160; Houston Dep. 109, 164.
Another man removed from the list, Shahe Galstiаn, had been hired pursuant to an agreement by a female senior FA, Taylor Hanex, for whom he had previously worked when accepted into the training program. Meshel Dep. 176, Ex. 16; Meshel Decl. ¶ 20; Roccanova Dep. 85-86; Clark Decl. Ex. 63. She had entered into an agreement with ML contractually guaranteeing his success (ie., pledging to pay back ML’s investment in him) until July 2009. Meshel Dep. 176, Ex. 16; Meshel Decl. ¶ 20; Roccanova Dep. 85-86; Clark Decl. Ex. 63. This agreement required her, among other things, to “guarantee Shahe’s PMD goals and hurdles are met each and every month for nine months.” Meshel Dep. Ex; 16; Clark Decl. Ex. 63. That appears to have meant that Hanex’s own credits would be transferred whenever Galstian’s fell short, to make up any shortfall for him; as a result, the numbers based on which the presumptive layoff list was generated did not accurately reflect
The third man removed from the presumptive layoff list, Josh Young, had signed and closed a multi-million dollar deal that was slated to hit ML’s books shortly after the RIF list was generated, but which was not reflected in ML’s records at the time the computer generated the presumptive layoff list. Meshel Dep. 177, 188; Meshel Decl. ¶ 19; Roccanova Dep. 157; Clark Decl. Ex. 65. Management was alerted that once the transaction was booked, Young would have met, and indeed exceeded, his performance goals; the deal had not been booked only because it was subject to a mandatory waiting period for 401(k) accounts. Meshel Dep. 177, 188; Meshel Decl. ¶ 19; Roccanova Dep. 157-58; Kamil Dep. 124; Clark Decl. Ex. 65. On this basis, Young was removed from the presumptive layoff list.
Wharton and Vuona, and the two males remaining on the presumptive list, were terminated. In both Vuona’s and Wharton’s cases, Roccanova delivered the news of the termination. Roccanova Dep. ISO-83; Vuona Dep. 247-250, 263-265; Wharton Dep. 241-42.
2. The Discretionary Layoff List
Once the presumptive layoff list was finalized — ie., prunеd from seven to four people, as described above — the Fifth Avenue branch was obliged, pursuant to the RIF, to terminate an additional nine employees.
Branch management then turned to the Trainee and Stage I lists to fill the remaining seven RIF slots. Meshel Dep. 169; Meshel Decl. ¶ 27; Roccanova Dep. 163. Although the decisions made in the last round of RIF determinations are not strictly relevant to Plaintiffs’ terminations,
The RIF was announced on January 26, 2009. See Clark Decl. Ex. 60. Management had been given, and took, four days (covering a holiday weekend) to produce the final RIF list. Meshel Dep. 154-155, 162; Mеshel Decl. ¶¶ 12, 15; Houston Dep. 117-19, 135; Kamil Dep. 107, 110-11.
II. Procedural History
On September 2, 2012, Plaintiffs filed the Complaint in this case. Dkt. 1. On October 22, 2010, ML filed its Answer. Dkt. 8. After the close of discovery,
On May 15, 2012, ML filed its motion for summary judgment on the claims of Vuona and Wharton, Dkt. 31, and its supporting memorandum of law (“Def. VW Br.”), Dkt. 32. Also on May 15, 2012, ML filed its motion for summary judgment on the claims of Kuo and Hudson, Dkt. 33, and the memorandum of law in support of that motion (“Def. KH Br.”), Dkt. 34. On June 18, 2012, Plaintiffs filed their opposition brief (“Pl. Br.”). Dkt. 38. On July 18, 2012, Defendants filed their reply brief (“Def. Reply Br.”). Dkt. 49.
That same day, ML filed a motion to strike portions of Plaintiffs’ Response to Defendants’ Rule 56.1 Statement of Material Facts, portions of the Plaintiffs’ Rule 56.1 Statement of Material Facts, and Plaintiffs’ accompanying Declarations, Dkt. 52, along with a memorandum of law in support of that motion (“Def. MTS Br.”). Dkt. 53. On August 10, 2012, Plaintiffs submitted an opposition to the motion to strike (“PI. MTS Br.”). Dkt. 56. On August 22, 2012, ML submitted a reply brief in support of the motion to strike (“Def. MTS Reply Br.”).
On December 6, 2012, the Court heard oral argument on the motion for summary judgment.
III. Applicable Legal Standards
A court should grant summary judgment only when the submissions, taken together, “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). The party moving for summary judgment bears the burden of demonstrating the absence of a material factual question; in making this determination, the court must view all facts “in the light most favorable” to the non-movant. Celotex Corp. v. Catrett,
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.,
IV. Plaintiffs’ Gender Discrimination Claims Under Title VII
In seeking summary judgment in its favor, ML first argues that Plaintiffs cannot make out a prima facie case of gender discrimination under Title VII Def. VW Br. 3; Def. KH Br. 3. ML next argues that even if Plaintiffs have made out such a case, they have not adduced sufficient facts to give rise to an inference that ML’s stated nondiscriminatory reasons for terminating them as part of ML’s RIF in fact were a pretext for gender discrimination. Def. VW Br. 14-17; Def. KH Br. 13-15. Plaintiffs oppose summary judgment, arguing that there are genuine issues of material fact as to whether their gender was a factor in their terminations, and whether ML’s stated reasons for including Plaintiffs in its January 2009 RIF were pretextual. Pl. Br. 12, 27. For the reasons that follow, the Court concludes that the Plaintiffs, narrowly, have made out a prima facie case, but that they have not adduced sufficient facts to give rise to an inference that ML’s proffered nondiscriminatory reasons for including Plaintiffs in the RIF were a pretext for gender discrimination.
A. Vuona’s and Wharton’s Title VII Claims
In analyzing claims of gender discrimination under Title VII in cases where there is no direct evidence of gender discrimination, courts apply the familiar burden-shifting framework set forth in McDonnell Douglas Corp. v. Green,
Under this framework, the plaintiff bears the initial burden of establishing a prima facie case of discrimination. To do so, a plaintiff must point to evidence in the record showing that: (1) plaintiff is a member of a protected class; (2) plaintiff was qualified for and competent at her position; (3) plaintiff was subjected to an adverse employment action; and (4) the adverse employment action took place under circumstances giving rise to an infer
If the plaintiff can demonstrate a prima facie case, “the burden of production shifts to the employer to articulate a legitimate, clear, specific and non-discriminatory reason” for having undertaken the adverse action. Holt v. KMI-Continental, Inc.,
1. Prima Facie Case
The parties do not dispute that Vuona and Wharton have made out the first three elements of a prima facie case. See Def. VW Br. 3; Pl. Br. 12. They diverge as to the fourth element: whether the adverse employment action (here, Vuona’s and Wharton’s terminations) took place under circumstances that give rise to an inference of discrimination. Plaintiffs argue that an inference of discrimination arises, alternatively, from (a) the allegedly disparate impact of the RIF decisions on male and female employees (a numerical/statistical argument), Pl. Br. 14-17, (b) the exclusion from the RIF process of men whom Vuona and Wharton claim are “proper comparators” of theirs, Pl. Br. 27-37, and, (c) more generally, what they claim was pervasive gender bias at ML, PI. Br. 19-26. In arguing that, these Plaintiffs have failed to make out a prima facie case, ML contends that they have not shown that any similarly situated male was treated differently from them, Def. VW Br. 3-7, and that neither the statistical nor the anecdotal evidence mustered by Plaintiffs permits an inference of discrimination, particularly given that it was a computer, not a subjective deсision-maker exercising discretion, that placed Vuona and Wharton on the initial RIF list. Def. VW Br. 7-13.
Plaintiffs are correct that their proffered evidence is sufficient, albeit by a small margin, to permit the inference of discrimination required to make out the fourth element of a prima facie case. The “minimal” burden of establishing a prima facie case, see St. Mary’s Honor Ctr.,
Plaintiffs seek to bolster their prima facie case by noting that there were male employees who, like Vuona and Wharton, were captured by the computer-generated RIF list but whom the decision-makers at the Fifth Avenue branch removed from the list for various reasons. The fourth element of a prima facie case may be established by demonstrating that an “employer subjected [an employee] to disparate treatment, that is, treated him less favorably than a similarly situated employee outside his protected group.” Graham v. Long Island R.R.,
Finally, Plaintiffs argue in support of their claim to have made a prima facie case of gender discrimination that there is anecdotal evidence of pervasive cultural gender bias at ML’s Fifth Avenue branch. This bias, Plaintiffs argue, inevitably tainted the perspectives of the RIF decision-makers. Plaintiffs cite Vuona’s having been asked to answer Mattia’s telephone early in her tenure at ML as evidence of gender stereotyping; they point to the Seducing the Boys Club book event as indicative of gender stereotyping and bias at ML; and they recount comments by Roccanova that they believe demonstrate a bias against women, including her scolding Vuona for not being “perky” enough upon answering the phone and offering Vuona a tissue upon her termination so her “mascara [wouldn’t] run.” Pl. Br. 20-24.
These incidents, considered alone, would not suffice to permit an inference that the RIF process was skewed by gender bias. And the first two incidents are of questionable relevance even at the prima facie stage, because Mattia was no longer an employee of ML’s Fifth Avenue branch at the time of the RIF. See Mattia Dep. 20, 139; Def. VW Br. 17-18. However, taken together, these incidents add modest incremental support to Plaintiffs’ statistical and comparator evidence, recounted above, on the issue of whether there is evidence based on which a prima facie case of
2. ML’s Legitimate, NonDiscriminatory Reasons for Termination
ML has come forward with legitimate, non-discriminatory reasons for Vuona’s and Wharton’s terminations. It is undisputed that their terminations were a part of a larger, nationwide RIF throughout ML that was necessitated by the trying economic circumstances in late 2008 and early 2009. A RIF can indeed provide a legitimate, non-discriminatory reason for a termination. Duncan v. N.Y.C. Transit Auth.,
3. Vuona’s and Wharton’s Argument That ML’s Reasons Were Pretextual
Vuona and Wharton dispute the reliability of the criteria used in generating the RIF list. They also emphasize subjective decisions by branch decision-makers in the course of this process, including to remove, and to retain at least temporarily, certain male trainees whose names appeared on the computer-generated presumptive layoff list. According to Vuona and Wharton, a reasonable jury could find ML’s purported justifications, for terminating them, while sparing those employees, to be pretextual. They argue that a jury could find pretext based on: (1) statistical evidence that can be read to show that the RIF disparately affected women; (2) the discretionary decisions made to except certain men from the presumptive layoff list, and not to consider comparable claims that could be made on their behalfs as to why their business “pipelines” merited retention; and (3) evidence of a gender-biased culture at ML, as illustrated by Mattia’s alleged sexist acts, Roccanova’s isolated comments to Vuona, and what Plaintiffs view as “barriers to success” that women faced at ML. The Court addresses each of these arguments in turn. Considered separately and together, these arguments fall
a. Numerical Disparity
In all, ML’s January 2009 RIF resulted in the termination of seven of eight female FA trainees at the Fifth Avenue Branch. Vuona and Wharton argue that this number is compelling evidence that gender discrimination played a role in ML’s RIF. Plaintiffs are correct that statistics are relevant to support a discrimination claim even in a disparate treatment case. See, e.g., Shannon v. Fireman’s Fund Ins. Co.,
In the case of the January 2009 RIF at issue here, the raw statistics presented fall far short of permitting an inference of gender discrimination. Statistical analysis is rarely “sufficient to defeat summary judgment. Although a generalized statistical analysis of selections in a RIF can provide circumstantial evidence of an inference of discrimination in support of a prima faсie case, as a matter of law, it is not sufficient to establish that the Defendant’s legitimate business rationale for eliminating Plaintiffs position is false, or that her ... gender was the real reason for her termination.” Zito v. Fried, Frank, Harris, Shriver & Jacobson,
The statistics offered by Vuona and Wharton are insufficient to prove pretext. Plaintiffs emphasize that almost all female FA trainees were terminated. But this statistic is misleading. First, the relevant universe is small: 28 employees were under consideration for the RIF as FA trainees, and 14 were eventually laid off. This small sample size counsels against heavily weighting statistical evidence. See Orisek v. Am. Inst. of Aeronautics & Astronautics,
b. Discretionary RIF Decisions
It is undisputed that ML removed three men from the presumptive layoff list. ML argues that each of these three men was removed based on individualized explanations or extenuating circumstances that do not apply to Vuona or Wharton, and thus none is “similarly situated in all material respects,” Graham,
JBC was removed from the presumptive layoff list due to grave medical concerns. JBC had been in contact with the Employee Assistance Program (“EAP”), which expressed concerns that JBC was suicidal. EAP recommended that Kamil, ML’s HR Director, remove JBC from the presumptive list. See Kamil Dep. 116-19. Kamil heeded that recommendation and removed him from the termination list. Neither Vuona nor Wharton has claimed similar circumstances or seriously disputes that these circumstances justified removal of JBC from the list.
Shahe Galstian was removed from the presumptive layoff list and survived the January 2009 RIF. Galstian was the beneficiary of a preexisting “sponsorship” agreement with a female FA named Taylor Hanex. See Meshel Dep. 176, Ex. 16; Meshel Decl. ¶ 20; Roccanova Dep. 85-86; Clark Decl. Ex. 63. Hanex had worked with Galstian before his becoming an FA trainee, and — well before the RIF — had “guaranteed” Galstian’s success with management in order to induce them to accept him into the training program. Meshel Decl. ¶ 20; Roccanova Dep. 85-86. Hanex had committed that, to the extent that Galstian failed to meet his hurdles, Hanex would transfer her production credits and assets to him, to make up any shortfall. See Clark Decl. Ex. 63; Oral Arg. Tr. 51-54, 77-78. The sponsorship agreement was due to expire in July 2009. See Clark Decl. Ex. 63; Meshel Dep. Ex. 16. The RIF decision-makers chose to except Galstian from the presumptive layoff list, because the data on which the computer had relied in compiling the presumptive RIF list had failed to take into account the agreement, which would have the effect of boosting Galstian’s numbers to a point where he would survive the RIF. See Meshel Dep. 176, Ex. 16; Meshel Decl. ¶ 20; Roccanova Dep. 85-86; Clark Decl. Ex. 63. Neither Vuona nor Wharton has asserted that she was protected by a similar contractual arrangement. To be sure, as Plaintiffs note, Galstian’s self-generated numbers were substandard, and supervisors, including Hanex herself, had expressed great dissatisfaction with his performance. See Clark Decl. Exs. 61, 62; Roccanova Dep. 203-07; Meshel Dep. 210-12; Kamil Dep. 141-45. But he was entitled, .under the agreement with Hanex, to the benefit of the production credits and assets to be transferred from her. Although Plaintiffs criticize ML’s decision to spare Galstian from RIF termination based on his credit-sharing agreement with Hanex, their having done so does not give rise to an inference that the decision to spare him — and more importantly, to terminate them — was made on the basis of gender. And subsequent events belie any such notion: Galstian was terminated after his agreement with Hanex expired, see Kamil Dep. 169; Houston Dep. 110, 168, in July 2009, confirming that his contractual arrangement with Hanex, not his gender, enabled him to escape termination under the RIF.
Put differently, although whether two employees are similarly situated is ordinarily a question of fact to be resolved by a jury, plaintiffs at least “must provide an objectively identifiable basis for comparability.” Goldman v. Admin. for Children’s Servs., No. 04 Civ. 7890(GEL),
Plaintiffs do assail ML’s decision to differentiate between a trainee’s “signed and closed business,” which it added to Young’s performance numbers, and the potential but uncertain business of other trainees like Vuona and Wharton, which it did not. See supra note 10. In this vein, Plaintiffs fault Roccanova for “not requesting] any special consideration for Wharton or Vuona or considering] the business they had coming in.” Pl. Br. 29. But this critique does not reveal gender discrimination. Although Vuona and Wharton appear to have had credible arguments as to why their performance and business generation were likely to improve in 2009, see PI. Br. 30-31, as each admitted in her deposition, neither was in the position that Young was, of having substantial, ironclad completed business that (upon completion of the 401(k) waiting period) was sure to post shortly.
“In determining whether the articulated reason for the [adverse employment] action is a pretext, ‘a fact-finder need not, and indeed should not, evaluate whether a
c. Evidence that Gender Bias Pervaded ML’s Culture
Plaintiffs finally attempt to show pretext by pointing to a- handful of incidents or practices at ML that they assert evidence gender bias on the part of senior managers. This bias, Plaintiffs argue, affected the termination decisions made by Meshel and Roccanova or, alternatively, hindered the ability of women to succeed at ML, thus indirectly accounting for the disproportionate number of female employees selected for inclusion in the RIF.
Plaintiffs point first to the incident in which Vuona was assigned telephone-answering duty. They argue that incident reflects gender stereotyping and could lead a reasonable jury to conclude that Plaintiffs were terminated due to gender. But this incident, even if established by competent evidence, is of little relevance. It.is undisputed that Mattia, the administrator whose conduct is assailed in this incident, had left ML by December 1, 2008, and had no involvement in the RIF decision-making process, including the selection of Plaintiffs for inclusion in the RIF. In any event, the evidence that Mattia preferred to have “girls” answer his phone is inadmissible hearsay. This preference was attested to only by Vuona, who stated that she had learned of it from Mattia’s assistant, Ditaranto, from whom the Court has not rеceived testimony. As such, Ditaranto’s statement is hearsay. It cannot be offered to prove the truth of the assertion and cannot be used for this purpose at summary judgment. See Ridinger v. Dow Jones & Co.,
The other senior manager to whom Plaintiffs seek to ascribe a discriminatory motive is Roccanova. Roccanova, unlike Mattia, was a crucial, if not the crucial, decision-maker with regard to the RIF. See, e.g., Oral Arg. Tr. 39 (“[T]he key decision-makers were Mr. Meshel and Ms. Roccanova”); Id. at 14-15 (“[W]e had Meshel and Anna [Roccanova], who were involved with Houston in getting the presumptive list. She relied a lot on their knowledge.”). Plaintiffs attempt to demonstrate that Roccanova was biased, based on two comments attributed to her and an earlier statement by Mattia. First, Vuona testified that Roccanova berated her for not being “perky” enough in answering Mattia’s phone. See Vuona Dep. 213-215; Compl. ¶ 36. Second, Vuona testified that, upon her termination, Roccanova handed Vuona a tissue, saying that she “did not want Vuona’s mascara to run, even though Vuona was not crying.” Pl. Br. 22; see
Neither incident, however, considered together or separately, is sufficient to permit an inference of gender discrimination on Roccanova’s part in connection with the administration of the RIF. First, Roccanova herself is a woman, and although not conclusive, see Feingold v. N.Y.,
The only other evidence regarding Roccanova on which Plaintiffs rely is a statement which Vuona testifies Mattia made, after the telephone-answering incident involving Vuona. According to'Vuona, after she complained of Roccanova’s treatment of her, Mattia told Vuona that Roccanova was “ ‘particularly hard on women’ because there, were not many female financial ad-visors when she started with Merrill Lynch.” Vuona Dep. 218; see Clark Decl. Ex. 39. Vuona’s account of Mattia’s statement, however, would not be admissible at trial for the truth of the matter asserted by Mattia, and therefore cannot be relied upon at the summary judgment phase. See Ridinger,
It bears repeating here that Vuona and Wharton were not affirmatively selected for inclusion in the RIF by Roccanova. They were chosen by a computer. To be sure, Roccanova’s subjective discretion played a role in the decision to remove several men from the list. But there is no evidence that any subjective decision as to Vuona and Wharton was made by anyone, let alone Roccanova, in connection with the RIF process. On the record before the Court, even assuming Roccanova tacitly harbored a bias against women, there is no act in which she engaged which such bias can credibly be said to have affected.
In pointing to incidents allegedly indicative of gender bias at ML, Plaintiffs lastly point to a statement by Meshel to Hudson that she should “stick to her knitting,” and to the Seducing the Boys Club event discussed аbove. The Court discusses Meshel’s statement towards Hudson in more detail below, see infra § IV(B)(3)(b), as it relates to Hudson’s termination. For the purpose of evaluating the claims made by Vuona and Wharton, Meshel’s single comment to Hudson is insufficient to raise a genuine issue of material fact as to his reasons for terminating Vuona and Wharton, whom the computer, not Meshel, included on the presumptive layoff list based on their numerically substandard performance. As to the Seducing the Boys Club event, it is fairly criticized as offensive, as ML’s Mattia and Kamil both acknowledged in their depositions. See Mattia Dep. 137-38; Kamil Dep. 72. But this event was hosted by Mattia, who was gone from ML in January 2009 and had no involvement whatsoever in Plaintiffs’ terminations.
Plaintiffs cite Slattery v. Swiss Reinsurance America Corporation,
Vuona and Wharton do claim more generally that teaming and mentoring opportunities were denied them at the branch. They claim that management facilitated teaming among male employees, which was an important ingredient to success at ML, but did not do so among female employees. Pl. Br. 40 — 41; Compl. ¶ 30. They also claim that management was slower to assign mentors to the female FA trainees than to the male trainees. Pl. Br. 40-41. But Plaintiffs have not adduced evidence to support these claims. With regard to teaming, neither Vuona nor Wharton could point to a specific instance in which management — as opposed to individual FAs or trainees — formed a team. See Vuona Dep. 148-50; Wharton Dep. 192-93. And in fact, Wharton herself teamed on occasions with other employees, who, with Wharton, took the initiative to band together. See Wharton Dep. 174-87. As to mentors, both Vuona and Wharton had assigned mentors while at ML, see Vuona Dep. 102-03; Wharton Dep. 140-41, and neither has complained that it took too long for them to be assigned mentors. Cf. Kuo Dep. 146; Kuo Decl. ¶ 5; Hudson Dep. 183.
For all these reasons, Vuona and Wharton have not put forth sufficient evidence of pretext to rebut ML’s legitimate, nondiscriminatory reasons for their terminations as part of the RIF. ML’s motion for summary judgment as to the Title VII discrimination claims of Vuona and Wharton is, therefore, granted.
4. Vuona’s Retaliation Claim
Vuona’s retaliation claim is that Roccanova caused her to be terminated in retaliation for Vuona’s earlier complaints about Roccanova. At the threshold, ML argues that Vuona failed to exhaust administrative remedies as required in Title VII retaliation claims, because she did not
Although the matter is not free from doubt, the Court’s assessment is that Vuona’s retaliation was fairly subsumed within her EEOC charge, such that investigation into that charge would fairly come to encompass the retaliation claim. Although not using the word “retaliation,” Vuona’s narrative to the EEOC included a recitation of Roccanova’s alleged statement to her that- Vuona “would ‘not last long’ if [she] continued to have an ‘uncooperative attitude’ about answering the telephone.” See Clark Decl. Ex. 39 ¶ 12. It also recited that Vuona had reported that statement to Roccanova’s boss: Vuona told the EEOC that she had “told Mattia about Roecanova’s abusive conduct and asked him about the telephone-answering assignment” and “told Mattia [she] would be glad to answer his telephone if male FAs were also asked to do so.” Id. And the EEOC complaint challenged Vuona’s discharge, the act of retaliation by Roccanova that Vuona challenges here. Although Vuona’s preservation of the retaliation claim would have been clearer had she checked the retaliation box or more explicitly alleged that her termination was an act of retribution, these factual allegations, viеwed in the light most favorable to Vuona, fairly encompass such a claim. See, e.g., Williams,
However, on the merits, Vuona’s Title VII retaliation claim falls well short. Retaliation claims are analyzed under the “same burden-shifting framework established for Title VII cases.” Treglia v. Town of Manlius,
Vuona’s complaint to Mattia is reasonably portrayed as protected activity; she
Vuona’s retaliation claim fails, however, the second and fourth prongs of the prima facie standard.
As to the fourth prong, assuming arguendo that Roccanova had known of Vuona’s complaint to Mattia about phone-answering practices and about Roccanova’s statement to her about her lack of perkiness in answering the phones, that knowledge would give Roccanova a basis to be annoyed at Vuona. But Vuona has not adduced sufficient evidence to establish a causal link between those events and her later termination during the RIF. First, Vuona’s complaint about Roccanova is alleged to have occurred nine months before the RIF — outside the time frame traditionally considered to allow for an inference of causation. See Thompson v. Morris Heights Health Ctr., No. 09 Civ. 7239(PAE),
Vuona’s claim that she was terminated due to unlawful retaliation in violation of Title VII therefore fails to present a genuine issue of material fact for trial. ML’s motion for summary judgment as to that claim is granted.
B. Hudson’s Title VII Claim
Like those of Vuona and Wharton, Hudson’s Title VII claim fails to raise a genuine issue of material fact. Consequently, ML’s motion for summary judgment as to Hudson is granted.
1. Prima Facie Case
Unlike Vuona and Wharton, Hudson was not among the individuals initially selected for termination by the computer that generated the presumptive layoff list. Instead, Hudson’s termination was a component of the second step of ML’s RIF: the selection for termination of Stage II FA trainees who had weak performance records relative to their peers in the same “length of service” (“LOS”) groups. The RIF process that led to Hudson’s termination therefore involved аt least two subjective, discretionary decisions not present in connection with the terminations of Vuona and Wharton: (1) the decision to focus next on Stage II trainees as potential candidates for termination; and (2) the decision within the group of Stage II trainees with the same LOS as Hudson to terminate Hudson but not others.
In part because of these subjective factors, Hudson has satisfied her minimal burden to make out a prima facie case of gender discrimination. See St. Mary’s Honor Ctr.,
An inference of discrimination may arise where an employer deviates from normal procedures. See Weiss v. JPMorgan Chase & Co.,
Moreover, the statistical evidence supports a prima facie case of discrimination more strongly in Hudson’s case than Vuona’s and Wharton’s. As noted, the overall raw numbers reflect that seven out of a total of eight female trainees, and seven out of a total of 20 male trainees, were terminated. See Pl. 56.1 ¶ 834; Def. 56. 1 ¶ 289; Def. Response to Pl. 56.1 ¶ 834. Further, when management turned to consider Stage II trainees, it terminated only two people, both women: Kuo alone within her LOS cohort and then Hudson alone within hers. And, within Kuo’s cohort, ranking trainees strictly on the basis of performance data, the trainee ranked immediately below Kuo, and who would thus have been considered before Hudson, Bernard Tsepelman, was male. See Def. 56.1 ¶ 257; Def. HK Br. 6. That ML drew the line within Stage II LOS 6 + immediately after a woman, Kuo, with the effect that a male employee was not cost his job, and then turned to the Stage II LOS 1-3 cohort where it proceeded to select one woman, Hudson, for termination, comfortably permits an inference of discrimination sufficient to make out a prima facie case.
2. ML’s Legitimate, NonDiscriminatory Reasons for Termination
ML, however, has provided more than sufficient legitimate, non-discriminatory reasons for Hudson’s inclusion in the January 2009 RIF. Hudson had by far the weakest performance data within the Stage II LOS 1-3 group. As of January 2009, Hudson had only 3.7 production credits and zero annuitized assets. See Hudson Ex. 21; Meshel Dep. 161. In sharp contrast, the other three Stage II LOS 1-3 employees had, in ascending order, production credits of 506.92, 5,987.84, and 12,678.35, and annuitized assets of $132,492.30, $244,300.57, and $276,501.19. See Meshel Dep. Ex. 24; Meshel Decl. Exs. B, D. Under these criteria, a reasonable juror would have to conclude that Hudson’s performance was by far and away the worst of trainees within her peer group; as such, ML was more than entitled to include hеr in the RIF. Although Hudson criticizes ML for not considering her pipeline of prospective and future business, and instead limiting its analysis to booked business, ML’s decision to do so was a permissible business judgment that, without more, does not evidence gender discrimination. Dissatisfaction with an employee’s job performance, particularly in the context of a company-wide RIF, is a legitimate reason for termination. See Delaney,
3. Hudson’s Argument that ML’s Reasons were Pretextual
To satisfy the third prong of McDonnell Douglas, Hudson must show that a reasonable factfinder could find ML’s reasons for her termination pretextual, and that its true reason for terminating Hudson was discriminatory on the basis of gender. Hudson has not done so. The Court examines each of Hudson’s arguments below,
a. Numerical Disparity
As noted, the RIF statistically affected female employees more than males. But although this statistical skew is relevant evidence and supported the finding of a prima facie case, see, e.g., Shannon,
b. Other Evidence of Gender Bias at ML
The other evidence on which Hudson relies fails to create a triable issue as to pretext. Beyond joining in Plaintiffs’ claims of overall gender bias at ML, discussed above, Hudson relies on a single incident involving her specifically: an investment opportunity presented to her in December 2008, involving a company called Amkor Green. Hudson contends that Meshel was dismissive of that opportunity, was condescending in his response to her, and later told Hudson to “stick to [her] knitting.” See Hudson Dep. 260-63, 266, 272, 277.
As a threshold matter, the parties dispute the extent to which Hudson’s views, expressed during the summary judgment process, about her interpretation of Meshel’s comment, may be properly considered. In opposing summary judgment, Hudson submitted a declaration that alluded to the incident, stating that “Meshel was dismissive of the prospect.” Hudson Decl. ¶ 9. For their part, Plaintiffs’ counsel submitted a 56.1 Statement that went beyond Hudson’s sworn statements, representing that, when Meshel asked “why would they bring you this business?”, she, Hudson, “understood [it] to be a reference to her gender.” Pl. 56.1 ¶ 546. Plaintiffs’ counsel added that “she considered the [knitting] remark to be sexist.” Pl. 56.1 ¶ 550. ML seeks to strike these paragraphs as immaterial and unsupported by any sworn
[W]hat I think he meant is stick to bringing in your — your list of people you know and what have you. I think that’s what he meant. In other words, this other business, you know, was not what I should be doing. But I didn’t think it was an appropriate thing to be saying to me.
Hudson Dep. 266.
The Court agrees with the defense on this point. In her sworn deposition, Hudson stated under oath that she believed Meshel’s “knitting” comment to relate to the type of work “I should be doing,” but, despite being asked what she thought Meshel meant by that comment, she did not reply that she understood the comment to be sexist. Plaintiffs’ counsel’s 56.1 response to the effect that Hudson understood the comment to be a reference to Hudson’s gender, and sexist, contradicts Hudson’s testimony. In any event, this statement as to Hudson’s perception is not supported by Hudson’s testimony or sworn declaration; it is merely a representation by counsel. For this independent reason, it is inadmissible. The Court therefore strikes these statements within ¶¶ 546 and 550 of plaintiffs 56.1 response. See Holtz v. Rockefeller & Co., Inc.,
To be sure, regardless of how Hudson subjectively perceived Meshel’s “knitting” comment, the pertinent issue is whether a finder of fact would understand it to reflect gender bias. On that issue, Hudson’s opinion, while relevant as a percipient witness, is not determinative. In the Court’s assessment, Meshel’s statement about “knitting,” without other evidence of gender bias on his part, does not so indicate. To “stick to one’s knitting” is a familiar cliche connoting that a person should stay within his area of knowledge or expertise. See, e.g., Adam Mokkai; A Dictionary of American Idioms 336 (2d ed. 1987). That benign connotation makes logical sense in the context in which' Meshel allegedly made that remark. Thus, although comments indicative of bias can supply a basis on which a factfinder can find that an unrelated adverse employment decision was animated by bias, see Tomassi,
Like Vuona and Wharton, Hudson also asserts that there was a gender bias infecting the entire branch, but for the same reasons that Vuona’s and Wharton’s arguments on this point failed, so too do Hudson’s. Moreover, Hudson testified that she had no negative interactions with Mattia; that she never saw or heard him take any discriminatory actions towards women while at ML, Hudson Dep. 133-34; and that she did not interact at all with Roccanova until she was fired, id. at 203. And the Seducing the Boys Club event of which
Finally, there is no evidence of male comparators to Hudson being treated differently. No other Stage II LOS 1-3 trainees had nearly as poor performance data as Hudson. She trailed her next weakest peer, Ryan Alex, by 503.22 PCs and $132,492.30 in annuitized assets. Her performance metrics were a far cry from those of any trainee who ultimately survived the RIF. And, as with Vuona and Wharton, there is no basis to regard ML’s failure to count Hudson’s “pipeline” of potential business as evidence of discriminatory intent. It was within ML’s broad business judgment to consider only signed and closed business: “The reasons tendered need not be well-advised, but merely truthful.” Dister v. Cont’l Grp., Inc.,
Because Hudson has not demonstrated a genuine issue of material fact as to whether she was terminated from ML for gender discriminatory reasons, summary judgment is granted in favor of ML on her Title VII claims.
C. Kuo’s Title VII Claim
Of the Plaintiffs, Kuo comes closest to meeting her burden under McDonnell Douglas. However, her Title VII claim, too, ultimately falls short of surviving summary judgment.
1. Prima Facie Case
For much the same reasons set out in connection with Hudson, Kuo has carried her minimal burden to make out a prima facie case.
First, there were subjective decisions in the process that led to Kuo’s termination. Like Hudson’s, Kuo’s name did not appear on the computer-generated presumptive layoff list. Instead, Kuo was selected for termination after management decided, after exhausting their terminations from the presumptive layoff list, next to consider the Stage II LOS 6 + trainees who did not appear on that list. Kuo has raised a question as to whether, in doing so, ML deviated from the instructions handed
Second, Kuo, like Vuona, Wharton, and Hudson, is aided in her prima facie case by the numerical disparity that characterized the January 2009 RIF as a whole, in which the statistical impact of the RIF can be viewed as falling more heavily on women relative to their numbers.
For these two reasons, Kuo has satisfied the de minimis requirements of a prima facie case of Title VII discrimination.
2. ML’s Legitimate, Nondiscriminatory Reasоns for Termination
As with the other Plaintiffs, however, ML has sufficiently rebutted Kuo’s prima facie case. Within her LOS group, Kuo had the weakest performance record, having met her hurdles during only 50% of her months in Stage II. Particularly in the context of a RIF, a performance-based reason such as this for a termination is a rational and nondiscriminatory one. See Carlton v. Mystic Transp., Inc.,
3. Kuo’s Argument that ML’s Reasons Were Pretextual
Kuo’s claim, therefore, turns on the third prong of the McDonnell Douglas test — whether the evidence gives rise to a genuine issue of material fact as to whether ML’s proffered reasons for her termination were pretextual, and that her termination was in fact related to her gender. The Court discusses each of Kuo’s arguments of pretext below.
a. Discretionary RIF Decisions
Kuo argues that Meshel and Roecanova’s decision, arguably contradicting the directive of management, to consider Stage II FAs for termination before considering the less experienced Stage I/Trainees, demonstrates pretext. The Court disagrees. Certainly, as a matter of policy, one can debate the wisdom of terminating more senior employees before less senior ones — particularly where, as in a training program, the company has invested more resources into the senior employees. But, even viewing the evidence in the light most favorable to Kuo, there is no evidence to support Kuo’s notion that adoption of this sequence was discriminatory. Meshel’s testimony was that he considered the remaining individuals in Stage II before the more junior trainees “because those are the people that [he] ... had the most information on in terms of objective performance data,” Meshel Dep. 157, and that within that group, Kuo “stood out” because “most on the list had met their goals, either a hundred percent of their time or the vast majority of the time,” while Kuo had only met her goals 50 percent of the time. Meshel Dep. 157-58. But even if one discredits that explanation, it does not follow that ML’s motivation was to discriminate against women. On the record before the Court, there is no reason to think that focusing next on Stage I employees would have resulted in materially fewer terminations of women. Indeed, after considering Stage II Trainees, ML turned to Stage I, and of the seven terminations at that Stage, three were of women. Had Stage- I been considered
Within Stage II, the choice of Kuo for inclusion in the RIF is amply supported by the objective data, as was the case with Hudson. Having met her performance goals 50% of the time, Kuo was well below her Stage II LOS 6+ peers, the next weakest of whom had met his goals 83% of the time. To be sure, ML could have chosen to terminate that peer, Bernard Tsepelman, for failing to meet his hurdles 100% of the time, but drawing the line between a trainee with a 50% success rate and one with an 83% success rate is hardly unjustifiable. ML could reasonably conclude that a trainee with an 83% success rate, during a turbulent economic time, had a sufficient likelihood of future success to merit retention. In any event, without more, the line that ML drew in implementing the RIF does not evidence discrimination.
b. Kuo’s Pipeline
Kuo, like the other Plaintiffs, argues that ML should have taken into- account her business pipeline; unlike the other Plaintiffs, however, Kuo points to significant business that, she argues, she had arranged before her termination for which she was not given сredit. Kuo has, in fact, vigorously disputed the accuracy of the performance data upon which Meshel and Roccanova relied in selecting her for the RIF. Kuo Decl. ¶ 9. Ultimately, however, while a reasonable jury could find that, in the. hurried RIF process, Kuo was not accorded the credit she perhaps deserved, there is no basis for finding that Kuo’s gender was a factor in any such calculative oversight.
Kuo testified to a number of prospective clients who planned to transfer business to her. See Kuo Dep. 267-70. However, the uniform evidence is that ML management did not consider trainees’ prospective business in implementing the RIF, considering instead only signed and closed business. Again, that approach, whatever its merits as a business judgment, cannot, without more, fairly be termed an act of gender discrimination.
Unlike the other three Plaintiffs, however, Kuo also argues that she in fact had signed and closed business within ML that was not taken into account by the RIF decision-makers. In her declaration, Kuo states: “The Household Opportunity Report (“HOPS report”) and PMD Stage 2 Performance Summary Report defendants provided in this litigation do not accurately reflect all of the accounts held, assets under management or production credits I held at the time of the January 2009 reduction in force.” Kuo Decl. ¶ 9. She then lists the alleged gaps in her HOPS report, including clients who simply “had more money with [her]” than is reflected on the report, clients whose transfer was not completed for procedural reasons, and a hedge fund account that Kuo alleges she had already brought in to ML. Kuo Decl. ¶¶ 10, 11, 13.
Even if Kuo’s declaration at the summary judgment stage could be considered, however, the result would be the same. Kuo has not come forward with any evidence that Meshel and Roccanova knew that the data reflected in the reports for Kuo, on which the decision to terminate her was made, were inaccurate. There is no evidence that, in the four-day window within which ML management determined who to lay off pursuant to RIF, the decision-makers cross-checked the accuracy of any of the employees’ performance data. The only trainee with respect to whom Meshel and Roccanova considered business not reflected on these reports was Josh Young, whose client’s signed and closed 401(k) account was subject to a 90-day waiting period. As such, it did not appear, and could not have appeared, with his performance data. And Roccanova was aware of Young’s business “because it was a former product of [hers], so [she] was interested that it came in properly,” Roccanova Dep. 157; she therefore brought it to Meshel’s, and then HR’s, attention, Meshel Dep. 188.
Although Kuo states in her declaration that Roccanova and Meshel were aware of her unrefiected business, that statement lacks any foundation in personаl knowledge, and there is no other evidence in the record that could support such a jury determination. Meshel testified: “I made the decision based on the information that I had on my screen, which is that Ms. Kuo, clearly, in terms of the peers that I had compared her to, was the weakest performer.” Meshel Dep. 159. Kuo does not state that she had ever told Meshel specifically of, for example, the hedge fund she had brought in. And while Kuo claims she had told Roccanova about the splitting of the account with her mentor, Vincent Ambroselli, see Kuo Dep. 171, 174, that in and of itself does not suggest that Roccanova knew that Kuo’s performance data as reflected on her reports had omitted this business. Kuo’s deposition testimony was that she split the hedge fund account with Ambroselli, and that, for reasons including that it was an institutional account, the number of credits she received from it according to the PMD rating system was measured differently than it might have been for another account. Kuo testified:
Q: You said you went to [Roccanova] about splitting this account with Vincent; is that correct?
A: Yes.
Q: Tell me about that conversation?
A: I think it was just in the extent [sic ] that ... I have this hedge fund account, and we’re — we’ll be doing trades.
Q: You wanted her to set up a split on the account, is that what you said?
A: Yes, I think it had to have her approval.
Kuo Dep. 174. She then explained that, because the hedge fund was an institutional account, and because she was splitting it with Ambroselli, she received some, but not all, of the production credits and assets she might have received had the account been another type of asset.
c. Other Evidence of Gender Bias at ML
Nor does the other evidence to which Kuo points raise an issue of fact as to gender discrimination. Kuo’s allegation that Mattia failed to introduce her at a series of weekly meetings, but introduced a male colleague, Hector Ramos, may be viewed as evidence that Mattia harbored a bias against women. Again, however, Mattia played no role in the RIF in question. And, as with the rest of the Plaintiffs, Kuo’s attempt to argue that, as a woman, she was denied teaming and mentoring opportunities lacks a foundation in evidence. Meshel appears to have acted unhelpfully towards Kuo, too, when she approached him in search of a partner to team with on international accounts, see Kuo Dep. 184, but she adduces no evidence that he acted differently with respect to males seeking partners, or that he facilitated teams for other employees. See Kuo Dep. 229-30 (“Q: Are you aware of any teams that were created that wasn’t the FA’s idea or the FAs who initiated the team? A: That I don’t know.”).
The closest Kuo comes to providing evidence on that issue is her statement that Hector Ramos told her that people were talking about “who’s going to be on what team.” Kuo Dep. 234. Putting aside that this secondhand statement is inadmissible to prove the truth of the matter asserted, it does not establish a gender-discriminatory teaming system. Kuo also argues that she was assigned a mentor later than male colleagues, but in testifying that Hector Ramos was assigned a mentor before she was, she admitted that Ramos had beеn hired before she was. Kuo Dep. 154-55.
Kuo’s termination presented a closer call on the merits than the other Plaintiffs’. In the final analysis, however, Kuo has not adduced sufficient evidence upon which a reasonable jury could find that her inclusion in the RIF was an act of gender discrimination.
V. NYSHRL Claims and NYCHRL Claims
Because Plaintiffs’ claims of discrimination, and Vuona’s claim of retaliation, under Title VII have been dismissed, the Court must decide whether to retain jurisdiction over the remaining claims, under the NYSHRL and the NYCHRL. Federal district courts have supplemental jurisdiction over state-law claims “that are so related to claims in the action within such original jurisdiction that they form part of the same case or controversy under Article III of the United States Constitution.” 28 U.S.C. § 1367(a). However, such jurisdiction is discretionary, see City of Chicago v. Int’l Coll. of Surgeons, 522 U.S. 156, 173,
By virtue of resolving Plaintiffs’ Title VII claims, the Court has in fact resolved their NYSHRL claims. That is because it is well-established that the substantive standards for liability under the NYSHRL and Title VII are coextensive: “[C]laims brought under New York State’s Human Rights Law are analytically identical to claims brought under Title VII.” Rojas v. Roman Catholic Diocese of Rochester,
The NYCHRL, however, sets out a different, more liberal standard from the Title VII and NYSHRL standard, see Loeffler v. Staten Island Univ. Hosp.,
CONCLUSION
For the foregoing reasons, ML’s motion for summary judgment is granted as to Vuona, Wharton, Hudson, and Kuo’s claims under Title VII and the NYSHRL. The Clerk of Court is directed to enter judgment in ML’s favor as to those claims, to terminate the motions pending at docket numbers 31, 33, and 52, and to close this case. Because the Court declines to exercise supplemental jurisdiction over the Plaintiffs’ NYCHRL claims, they are dismissed without prejudice.
SO ORDERED.
Notes
. The Court’s account of the underlying facts of this case is drawn from the parties’ submissions in support of and in opposition to the instant motion — specifically, Defendants' Local Rule 56.1 Statement of Material Facts ("Def. 56.1”) (Dkt. 26); the Declaration of Joel Meshel in Support of Defendants’ Motion for Summary Judgment (“Meshel Decl.”) (Dkt. 35); the Declaration of Audrey Y. Dupont in Support of Defendants’ Motion for Summary Judgment ("Dupont Decl.”) (Dkt. 36); Plaintiffs’ Local Rule 56.1 Statement of Material Facts ("Pl. 56.1”) (Dkt. 39); the Declаration of Anne L. Clark in Opposition to Defendants’ Motion for Summary Judgment .(“Clark Decl.”) (Dkt. 40); the Declaration of
. The parties dispute the proper terminology to be applied to this list, in particular whether the computer-generated RIF list was mandatory or presumptive; the latter phrase may connote that there was some degree of flexibility given to the RIF decision-makers. Compare Def. 56.1 ¶¶ 190-193, with Pl. 56.1 ¶¶ 620-623, 635; see also Oral Arg. Tr. 48.
. The presumptive layoff list consisted of POA trainees and Stage II PMD trainees who had completed аt least three performance months and who: (1) were off-target on their objective performance hurdles and (2) had failed to meet their hurdles more than 50% of the time. Meshel Decl. ¶ 13, Ex. A; Clark Decl. Ex. 8.
. The branch needed only nine, rather than ten, additional employees at that point to reach its target of 14 because one male employee who was captured by the presumptive layoff list, and thus would have been terminated—Theodore Worthington — was already in the process of separating from ML at the time of the RIF. Def. 56.1 ¶221. The Court here includes him in its total count because, as a result of Worthington’s separation, management was not required to select another employee to be terminated in his place; Worthington was counted toward the required RIF headcount of 14. Id. ¶ 222.
. On November 15, 2011,
. To assure parity, the Court granted Plaintiffs leave to file a double-length opposition brief.
.In resolving the motion for summary judgment, the Court addresses the motion to strike only to the extent the underlying assertions are relevant to the analysis herein.
. The number of male trainees terminated can alternatively be viewed as six or seven, as described supra note 4, depending on whether Theodore Worthington is counted. The ensuing analysis applies equally whether or not Worthington is treated as having been terminated pursuant to the RIF.
. The record shows that in December 2008, Young was 22,384.14 short on cumulative PCs and $234,104.61 short on fee-based assets. See Meshel Dep. Ex. 32. This 401(k) account, which was worth more than $3 million when it first converted to ML, was expected to, and ultimately turned out to, be worth $7 million. See Meshel Decl. ¶ 19; Clark Decl. Ex. 65. Measured even at the lower, $3 million level, the 40 l(k) account easily elevated Young’s performance numbers above the target level, negating a necessary criterion for the presumptive layoff list.
. See, e.g., Vuona Dep. 268-69 ("Q: [A]t the time of the layoff, while you thought that your performance would improve, you did not have any proof or guarantee that would happen, correct? A: I couldn't predict the future on what accounts would come in. Q: It is not a situation where you had already landed a significant account, where the paperwork was done and it was just transferring, took time to transfer to Merrill, correct? A: [N]o.... [I]f the money is not there that day, it is not coming in.”). In her declaration, Vuona alludes to clients who had invested money with her in cash or cash equivalents but whose money she had not invested in the market, because of the poor market conditions prevailing at the time. Vuona Decl. ¶ 17. Vuona also refers to "several clients who had additional assets available for investment at Merrill Lynch.” Id. at ¶ 20. Even if construed as not inconsistent with her deposition testimony as cited above and therefore properly considered on a motion for summary judgment, see Palazzo ex rel. Delmage v. Corio,
Whаrton, for her part, mentions in her declaration a prospect that she was told to “hold off pursuing” until after the merger, see Wharton Decl. ¶ 10—a client who had begun to transfer assets but temporarily had "paused” due to market conditions. See Wharton Decl. ¶ 13. She also testifies that she had meetings scheduled with prospects who planned to transfer assets to Merrill Lynch. See id. at ¶¶ 14-16. But, unlike Young’s, none of these potential accounts
. During Wharton's deposition, when asked, ”[W]as there business that had been signed, completed business that did not appear in your numbers as of the time of the layoff,” her response was "Not that I know of.” Wharton Dep. 293-294. Vuona similarly answered the question ”[A]t the time of your separation did you have any signed business that was completed but had not yet posted at Merrill?” with a "No.” Vuona Dep. 120. See also Vuona Dep. 268 ("Q: It is not a situation where you had already landed a significant account where the paperwork was done and it was just transferring, took time to transfer to Merrill, correct? A: [N]o.”).
. Because of the secondhand nature of Mattia’s statement, it is also unclear what, if any, basis Mattia had for his opinion as to Roccanova’s motivations.
. At Vuona’s deposition, when asked why she believed her colleague Evans had originally been uninterested in the opportunity she brought to him, telling her to attend the initial meeting by herself, she responded: “[H]e didn’t take ... the opportunity seriously” until he realized “he would make money.” Vuona Dep. 236. The only reasons she offered for believing that his underestimating the opportunity initially was due to her gender were that: “there aren't a lot of women to look to in the office that are ... seen as ... successful in the program [which] colors someone’s idea of what’s a good opportunity,” and that “it seemed like [Craig Evans and another colleague, David Gray] were helping a lot of the male trainees, and I never saw them once speak to the women trainees.” Vuona Dep. 236-37. But when asked whether she ever saw them refuse to speak with female trainees, Vuona answered that she had not. Id. at 237. Wharton adduced even less evidence that Evans’ lack of support and assistance related to her gender. She testified simply that “he did not communicate effectively” and failed to follow up when she had reached out to him. Wharton Dep. 160-68. A reasonable factfinder could not find, on the basis of these incidents, that, because of their gender, Vuona and Wharton were inhibited from succeeding at ML.
. There is no dispute that Vuona has satisfied the third prong. She was terminated from ML — the quintessential adverse employment action.
. In Hudson's declaration, she identifies various business prospects, in paragraphs which ML moves to strike as inadmissible hearsay. See Def. MTS Br. 9-11. Because there is no evidence that ML’s decision to limit its consideration to signed and closed business was discriminatory, there is no occasion for the Court to resolve this aspect of ML’s motion to strike.
. At argument, asked to elaborate on the eccentricities involved in the bookkeeping of this particular account, Plaintiffs' counsel stated: "The money was there. It just wasn't in the system in a way that she got credit for it.... Some types of funds were things that were making money for Merrill Lynch but they didn't count for this program. They had to be in a booking system, transferred to a different type of fund in order for her to get production credits for it." Oral Arg. Tr. 63-64.