Chauvancy v Dresdner Bank AG. (2004 NY Slip Op 51225(U))

Chauvancy v Dresdner Bank AG.

2004 NY Slip Op 51225(U)

Decided on June 23, 2004

Supreme Court, New York County

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Plaintiff Doris Chauvancy seeks in her amended complaint, which contains only one cause of action, to recover compensatory and punitive damages against the defendants for alleged gender discrimination and retaliatory termination in violation of Executive Law § 296 (1) and Administrative Code of the City of New York § 8-107 (1) (a).^[FN1] Defendants now move pursuant to CPLR § 3212(a) for summary judgment dismissing the complaint.

Prior to her termination, plaintiff was employed at the New York City office of defendant Dresdner Bank AG (Dresdner), as a Vice President and Foreign Exchange (FX) Salesperson. As such, she dealt on behalf of Dresdner with clients who wished to buy or sell foreign currency. Generally, FX salespeople quote to their clients prices which the salespeople receive from their trader colleagues. The job of Dresdner's (and other banks') traders is to manage the risks of the currency transactions; the job of the salespeople is to manage the firm's relationships with its clients.

While current market buy and sell prices are shown on every trader's computer, those prices may be "shaded," either upward or downward, by either the trader or the salesperson. That is, a price outside the current market range may be set, in view of the size of the proposed transaction, the importance (in terms of volume and frequency of transactions) of the client, or certain other factors. Salespeople and traders are mutually dependant on each other, and where a particularly advantageous trade has been consummated, one or the other may book a portion of the profit to the other's credit. The yearly bonuses that Dresdner pays both to traders and to salespeople are determined, in part, on the profits that they have made on the trades.

One of plaintiff's clients was the Bank for International Settlements (BIS), located in Basel, Switzerland, a client she brought with her to Dresdner when she came. The BIS employee with whom plaintiff had regularly dealt was Alan Oakley. At the time that plaintiff began working for Dresdner - on July 10, 2000 - her supervisor was Richard Davies. Davies was subsequently demoted and succeeded by Seth Toney.

In mid-September 2001, Dresdner received a complaint from BIS, which stated that it had [*2]received a letter dated September 5, 2001, with the following text:

This letter was not signed, but the name "Jackie Morriss" was typed at the bottom. The envelope in which the letter was mailed was from "Dresdner Kleinwort Wasserstein" in New York and was addressed by hand to the General Manager of BIS in Basel, Switzerland.

Ms. Morriss was one of plaintiff's colleagues at Dresdner. Dresdner, which had given plaintiff substantial bonuses on the basis of the profits that she had been generating, and which considered her "near the top" among her peers, promised BIS that it would investigate the matter. On or about September 20, 2001, defendant Pilpel, who was employed by defendant Dresdner as the Senior Vice President of Compliance at its 75 Wall Street office, called plaintiff to a meeting with him and with non-party Henry Fajemirokun, who was Head of Global Debt North American Sales and was ultimately responsible for plaintiff's department. Plaintiff was informed of the complaint and told to continue working pending the investigation. Pilpel began to review the tapes of telephone conversations between plaintiff and all her clients. Because Ms. Morriss denied having sent the letter to BIS, Pilpel hired a forensic handwriting examiner, who determined that the envelope in which the letter had been mailed, had, in fact, been addressed by Mr. Davies. Thereupon, Mr. Davies was summarily terminated. In the meantime, BIS had terminated Mr. Oakley for "leaving money on the table" at the expense of BIS. It appears that at or about that time, BIS stopped using Dresdner's services.

Pilpel's investigation of plaintiff's trades initially focused on a transaction that took place on August 17, 2001. In arranging that transaction, which netted Dresdner an $8,000 profit, Mr. Oakley persuaded plaintiff to accept a trade at the price (more advantageous to Dresdner) at which the currency had traded approximately 40 minutes earlier. The tape of the August 17th conversation contains some bantering remarks, and plaintiff and Mr. Oakley, who was based in Basel, slip in and out of French, a matter that defendants view as problematic. Pilpel testified at his deposition that he had found approximately 8 to 10 transactions in which Mr. Oakley and plaintiff had agreed on the market price at the time that they were preparing to trade in a currency, and then discussed how much more BIS would pay in additional compensation to Dresdner, and thus, indirectly, to plaintiff.

On October 4, 2001, Pilpel again summoned plaintiff to his office, where Mr. Fajemirokun and James Wickham, Vice President for Compliance, were present. Fred Dubignon, another Dresdner executive, was on speakerphone. Pilpel handed plaintiff a copy of the transcript of the August 17th transaction, and repeatedly asked her to explain the conversation. Plaintiff responded that Mr. Oakley was a smart and friendly customer, who, if he was happy with the price offered, would reward Dresdner for its services by improving on that price. Plaintiff added that, in contrast to equity trading, this was how FX salespeople make their money. [*3]

Pilpel continued to press plaintiff for an explanation of Mr. Oakley's behavior and eventually, according to plaintiff's deposition testimony, asked her if she and Mr. Oakley were sleeping together. According to Pilpel's deposition testimony, plaintiff asked him whether he thought she was having sex with Mr. Oakley, and he responded by asking whether, indeed, she was. At the end of the meeting, plaintiff was asked to step outside. Shortly thereafter, she was called back in and told that she was being suspended with full pay and benefits, pending the conclusion of the investigation.

The following day, plaintiff requested another meeting with the same group of people, at which time she told them that she believed that some of her male colleagues had made trades with bigger margins than hers, and that she believed that she was being singled out and treated differently because she was a woman. At this meeting, plaintiff also stated that male employees of Dresdner took customers to topless bars and exchanged pornographic e-mails in the workplace. Defendants contend that they, thereupon, broadened their investigation. Pilpel testified at his deposition that he and a number of assistants eventually reviewed the tapes of all the other salespersons' trades, and that they found no instances of unethical trading.

In early December, Pilpel recommended to Messrs. Fajemirokun and Dubignon that plaintiff be terminated. On or about December 5, 2001, plaintiff was terminated for cause. On December 13, 2001, after a number of telephone conversations between executives of BIS and of Dresdner, BIS wrote to Dresdner claiming that it had been disadvantaged by more than $1.2 million by plaintiff's trades with Mr. Oakley. Dresdner responded by offering a settlement of just under $998,000, which BIS accepted. Defendants characterize this payment as restitution. Plaintiff characterizes it as a kickback, designed to regain BIS as a customer.

Plaintiff further contends that while she was employed by Dresdner, one colleague remarked that plaintiff's pants were very tight, another said that plaintiff's boots looked "very S & M," and Ms. Morriss introduced her to a newly hired trader by saying, "And this is Doris. And if you make her a choice price she will sleep with you." Some time thereafter, plaintiff asked Mr. Toney to move her seat away from Ms. Morriss', but he told her that the entire

department would be moving soon, and that new seating arrangements would be made at that time.

The standards for recovery under both the New York State and the New York City Human Rights Laws generally accord with those of Title VII of the Civil Rights Act of 1964, 42 USC § 2000e, et seq. Mittl v New York State Division of Human Rights, 100 NY2d 326 (2003); Cruz v Coach Stores, Inc., 202 F3d 560 (2d Cir 2000); Ferrante v American Lung Assn., 90 NY2d 623 (1997); Pace v Ogden Servs. Corp., 257 AD2d 101 (3d Dept 1999); Walsh v Covenant House, 244 AD2d 214 (1st Dept 1997). In order to make out a prima facie case of unlawful discriminatory discharge, a plaintiff must show that he or she is a member of a statutorily protected class, that he or she was qualified for the job, and that the discharge occurred in circumstances giving rise to an inference of discrimination. Mittl, supra; at 330; Weinstock v Columbia Univ., 224 F3d 33 (2d Cir 2000), cert denied __ US __, 124 S Ct 53 (2003).

Plaintiff is a member of a statutorily protected class, and defendants do not dispute that she was qualified for her job. However, the circumstances of her discharge do not give rise to an inference of discrimination. The Appellate Division, First Department, in Kapila v. Divney, 269 AD2d 127 (1st Dep't 2000), has held, citing Fisher v Vassar Coll. (114 F3d 1332 [2d Cir 1997], cert denied 522 US 1075 [1998]), that where a woman alleges that she was discharged because of her sex, a "necessary element" of her prima facie case is that she was replaced by a male. Here, it is undisputed that plaintiff's replacement at Dresdner is a woman, and that of the three salespersons who have been hired into plaintiff's group since her termination, two are women. [*4]

Notwithstanding this rule, a female plaintiff can make a prima facie case of discriminatory discharge, even if she has been replaced by a woman, where she can show that she was discharged because she did not conform to her employer's stereotypical expectation of women in her position. See Price Waterhouse v Hopkins (490 US 228 [1989]), holding that male supervisors' dislike of plaintiff's failure to conform to their expectations regarding feminine dress and deportment was evidence that plaintiff was denied promotion because of her sex. Similarly, a plaintiff who can prove disparate treatment, as when she and male colleagues commit the same acts and only she is terminated because of them, raises an inference that she was discharged because of her sex. However, this is not what happened in this case.

One of the documents that plaintiff received when she was hired is Dresdner's Policy Concerning Exposure to Loss or Liability, which provides, in pertinent part, that:

Accordingly, the defendants' motion for summary judgment is granted, and the complaint is dismissed with prejudice but without costs or disbursements.