Opinion
00 Civ. 8595 (SAS)
April 5, 2002
Gertha Laurent, White Plains, New York, for Plaintiff (Pro Se).
Jantra Van Roy, Esq., Zeichner Ellman Krause LLP, New York, New York, for Defendant.
OPINION AND ORDER
I. INTRODUCTION
Gertha Laurent, proceeding pro se, claims that Citibank wrongfully terminated her employment based on her national origin. See Complaint ("Comp.") ¶¶ 4, 7. Because Laurent has failed to establish that she was qualified to work as a financial associate at Citibank, Citibank's motion for summary judgment is granted.
While Laurent alleges she was discriminated against on the basis of race, rather than national origin, I will consider her claim as if she had initially alleged discrimination on the basis of national origin.See July 24, 2001 Deposition of Gertha Laurent ("Laurent Dep.") at 84. Laurent also claims in her Complaint that Citibank retaliated against her. See Comp. ¶¶ 4, 7. However, Laurent offers no evidence that she engaged in any protected activity prior to her termination that would give rise to a claim of retaliation. See Clark County Sch. Dist. v. Breeden, 532 U.S. 268, 272 (2001), rehearing denied by 533 U.S. 912 (2001); Shin v. ITOCHU Intern., Inc., No. 97 Civ. 6235, 1998 WL 474198, at *3 (S.D.N.Y. Aug. 13, 1998) (to establish a prima facie case of retaliation a plaintiff must show that: (1) she engaged in a protected activity; (2) her employer was aware of this activity; (3) her employer took an adverse employment action against her; and (4) there was a causal connection between the protected activity and the adverse employment action).
II. LEGAL STANDARD
Rule 56 of the Federal Rules of Civil Procedure provides for summary judgment "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). "An issue of fact is `material' for these purposes if it `might affect the outcome of the suit under the governing law[,]' [while] [a]n issue of fact is `genuine' if `the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Konikoff v. Prudential Ins. Co. of Am., 234 F.3d 92, 97 (2d Cir. 2000) (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).
In assessing the record to determine whether genuine issues of material fact are in dispute, a court must view the evidence "in the light most favorable" to the non-movant. See Breland-Starling v. Disney Publishing Worldwide, 166 F. Supp.2d 826, 829 (S.D.N.Y. 2001) (citing Anderson, 477 U.S. at 255). A court must resolve all ambiguities and draw all reasonable factual inferences in favor of the non-moving party. See Parkinson v. Cozzolino, 238 F.3d 145, 150 (2d Cir. 2001) "Although the moving party bears the initial burden of establishing that there are no genuine issues of material fact, once such a showing is made, the nonmovant must `set forth specific facts showing that there is a genuine issue for trial.'" Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000) (quoting Anderson, 477 U.S. at 256). However, the non-moving party may not "rest upon . . . mere allegations or denials." St. Pierre v. Dyer, 208 F.3d 394, 404 (2d Cir. 2000). "Statements that are devoid of any specifics, but replete with conclusions, are insufficient to defeat a properly supported motion for summary judgment." Bickerstaff v. Vassar Coll., 196 F.3d 435, 452 (2d Cir. 1999), cert. denied, 530 U.S. 1242 (2000); see also Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998) ("If the evidence presented by the non-moving party is merely colorable, or is not significantly probative, summary judgment may be granted.") (quotation marks, citations, and alterations omitted).
The papers of a party proceeding pro se should be read liberally and interpreted "to raise the strongest arguments that they suggest." McPherson v. Coombe, 174 F.3d 276, 280 (2d Cir. 1999) (quotation marks and citations omitted); see also Haines v. Kerner, 404 U.S. 519, 520 (1972). However, a pro se party's bald assertions, if unsupported by evidence, are not sufficient to overcome a motion for summary judgment.See Carey v. Crescenzi, 923 F.2d 18, 21 (2d Cir. 1991). The "non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. The City of New York, 132 F.3d 145, 149 (2d Cir. 1998).
On January 9, 2002, Laurent was given notice of her right to submit opposition papers, by February 8, 2002, in response to Citibank's motion for summary judgment. See January 9, 2002 Order. Laurent, however, has failed to submit any affidavits or other admissible evidence. Instead, Laurent submitted an unsworn statement of her claims and the facts as she perceived them. See Response to Citibank's Motion for Summary Judgment ("Laurent Resp.").
III. FACTUAL BACKGROUND
Citibank operates numerous retail bank branches, referred to as financial centers, in and around New York and Connecticut. See Defendant's Rule 56.1 Statement of Undisputed Facts ("Def.'s 56.1") ¶ 1. Laurent began to work for Citibank on January 24, 2000 as a grade 12 financial associate in its Greenwich Financial Center ("Greenwich"). See id. ¶ 2. Grade 12 financial associates handle client transactions, such as deposits and withdrawals, and refer clients to the sales staff. See id. ¶ 3. Michael Abate was the financial center executive vice president at Greenwich. See id. ¶ 4. Marc Perrone was Laurent's supervisor at Greenwich. See id. ¶ 5.
At Citibank, the first three months of employment are considered an introductory period. See id. ¶ 6. During this period, an employee may resign without giving notice and Citibank may release the employee from employment without giving notice or an opportunity for corrective action. See id.
All financial associates are required to attend a training class before beginning to perform their job responsibilities. See id. ¶ 7. On February 1, 2000, Laurent began a nine-day training class at Citibank's training facility in New York City. See id. ¶ 9. According to Citibank, Vincent Roppolo taught the training class. See id. Citibank records indicate that Laurent's performance in training was less than satisfactory. See id. ¶ 10. Roppolo identified the following problems with Laurent's performance: (1) failure to check identification or witness endorsements when cashing checks; (2) failure to add up transactions at the end of the day; and (3) an overage of $911.00 on the last day of training. See id. ¶ 11.
Laurent observed other financial associates in Greenwich during her first week with Citibank, because the next training class began one week later. See Def.'s 56.1 ¶ 8.
Roppolo has trained new financial associates at Citibank for approximately five years. See October 29, 2001 Declaration of Vincent Roppolo ("Roppolo Decl.") ¶ 1. His responsibilities include observing, coaching, evaluating and providing feedback to trainees and communicating with hiring managers regarding issues or concerns relating to their trainees. See id.
According to Laurent, Sonia Bodys was the instructor during the first week of the training class and told the trainees about various Citibank policies. See Laurent Dep. at 41.
According to Laurent, each trainee uses a training cash drawer with "fake money" for training purposes. See Laurent Resp. at 4.
According to Citibank, the written attendance record from the training class indicates that Laurent arrived late in the morning or following her lunch break on at least four separate occasions during the nine-day training class. See id. ¶ 12. Laurent admits that she arrived late twice during the second week of training. See Laurent Dep. at 58. Roppolo discussed Laurent's performance during the training class with Abate and Perrone. See Def's 56.1 ¶ 13. Laurent was terminated as of February 11, 2000. See id. ¶ 14.
Laurent claims that Roppolo asked her where she was from when he heard her speaking Creole on the telephone and "gave [her] a funny look" when she responded that she was Haitian. See Laurent Resp. at 4. Laurent claims that Roppolo displayed a negative attitude toward her following this conversation. See id. In particular, Laurent claims that Roppolo subsequently: (1) yelled at her for breaking training rules by entering the classroom during breaks, while allowing other employees to remain in the classroom; (2) took "fake money" from her training drawer during the break, causing her to be short at the end of the day; (3) made disparaging remarks regarding her work performance and embarrassed her in front of the rest of the class; (4) saved Laurent's work when she made mistakes and discarded it when she did not; and (5) called Laurent's supervisor in Greenwich with negative reports. See id. at 3-4. Roppolo denies having ever asked Laurent where she was from. See Roppolo Decl. ¶ 15.
IV. DISCUSSION
When direct evidence of discrimination is lacking, courts apply theMcDonnell Douglas three-part burden shifting analysis characterized by the Supreme Court as the "allocation of burdens and the creation of a presumption by the establishment of a prima facie case intended progressively to sharpen the inquiry into the elusive factual question of intentional discrimination." Texas Dep't of Comm. Affairs v. Burdine, 450 U.S. 248, 254 n. 8 (1981). At the initial stage, the plaintiff must present evidence sufficient to establish a prima facie case of discrimination. See Bazile v. New York Hous. Auth., No. 00 Civ. 7215, 2002 WL 171690, at *9 (S.D.N.Y. Feb. 1, 2002). In defending against a motion for summary judgment, the plaintiff's burden at this stage is de minimus. See Pimentel v. The City of New York, No. 00 Civ. 0326, 2001 WL 1579553, at *7 (S.D.N.Y. Dec. 11, 2001). "If a plaintiff establishes a prima facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the adverse employment action."Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). If the defendant meets this burden of production, "the presumption drops out of the analysis," and the plaintiff must prove that he or she was actually the victim of intentional discrimination. Id.
Title VII provides in pertinent part:
(a) It shall be an unlawful employment practice for an employer —
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin . . .42 U.S.C. § 2000e-2.
Where there is no direct evidence of discrimination, i.e., only indirect or circumstantial evidence, a plaintiff establishes a prima facie case of discrimination by showing: (1) she is a member of a protected group; (2) she is qualified for the position; (3) she was subjected to an adverse employment action; and (4) the adverse action occurred under circumstances giving rise to an inference of discrimination based on membership in the protected group. See Tappe v. Alliance Capital Mgmt., L.P., 177 F. Supp.2d 176, 183 (S.D.N.Y. 2001) ("Tappe I"); Bazile, 2002 WL 171690, at *9.
Where a plaintiff offers direct evidence of discrimination, she may proceed under the "mixed motive theory" established in Price Waterhouse v. Hopkins, 490 U.S. 228, 241-42 (1989).
The only contested issue is whether Laurent was qualified to work as a financial associate at Citibank. To prove "qualification," a plaintiff must show that her performance was of "sufficient quality to merit continued employment." Powell v. Syracuse Univ., 580 F.2d 1150, 1155 (2d Cir. 1978). Plaintiff's job performance need only be "satisfactory," Thornley v. Penton Publ'g, 104 F.3d 26, 30 (2d Cir. 1996), not "flawless," Powell, 580 F.2d at 1155. While "satisfactory" is defined in terms of "the employer's criteria for the performance of the job — not the standards that may seem reasonable to the jury or the judge," Thornley, 104 F.3d at 30, proof that plaintiff did not receive negative feedback can raise "[a]n inference of satisfactory performance,"Pimentel, 2001 WL 1579553, at *3 (citing e.g., Powell, 580 F.2d at 1155). However, "`where discharge is at issue and the employer has already hired the employee, the inference of minimal qualification is not difficult to draw.'" Tappe I, 177 F. Supp. 2d at 181 n. 4 (quotingGregory v. Daly, 243 F.3d 687, 696 (2d Cir. 2001)).
Citibank has not contested whether: (1) Laurent is a member of a protected class; (2) Laurent was subjected to an adverse employment action; and (3) the circumstances give rise to an inference of discrimination based on membership in the protected class. See Memorandum of Law in Support of Defendant's Motion for Summary Judgment.
Laurent claims that Citibank hired her because she was qualified for the financial associate position. See Attachment to Complaint at 4. She buttressed her qualification status by pointing out that Citibank spoke with the references she provided before hiring her. See id. In general, it is reasonable to assume that employers carefully evaluate applicants and only hire those who they have determined are qualified. See Gregory, 243 F.3d at 696. It is not reasonable to assume, however, that employers evaluate applicants as thoroughly when continued employment is subject to satisfactory completion of an introductory period. See McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir. 1997) (concluding, in the summary judgment context, that no prima facie case had been made out where, after a probationary period, the employer rated plaintiff's work unsatisfactory on a majority of criteria and plaintiff did not contest most of these ratings). Because Citibank stipulates that it may dismiss new employees during the introductory period, Laurent's qualification cannot be inferred from the mere fact that Citibank hired her for its financial associate training program.
The evidence submitted by Citibank shows that Laurent is not qualified to work as a financial associate. Citibank's evaluation of Laurent's performance during her introductory period indicated the following problems: (1) inability "to articulate what is wrong;" (2) "difficulty in communicating in English;" (3) need for additional coaching in security; (4) failure to understand directions; (5) lateness; and (6) an overage in her training cash drawer. See Citibank Evaluation Form for New Financial Associates at 1-4 attached to Citibank's Notice of Motion. Laurent admits that she arrived late to her nine-day training class on at least two occasions and otherwise does not contest the accuracy of the evaluation. See Laurent Dep. at 58. Because Laurent has failed to demonstrate that she is qualified to work as a financial associate, she cannot establish a prima facie case of discrimination.
Laurent claims that the overage resulted from Roppolo tampering with her cash drawer, but offers no evidence in support of her assertion. Mere conclusory allegations are insufficient to overcome a motion for summary judgment. See Carey, 923 F.2d at 21. Leaving the overage issue aside, Citibank has offered several instances of shortcomings in Laurent's job performance.
Assuming, arguendo, that Laurent could establish a prima facie case of discrimination, Citibank has met its burden of production by proffering a legitimate, non-discriminatory reason for Laurent's discharge. Therefore, Citibank has successfully rebutted her prima facie case of discrimination. Laurent cannot show that Citibank's explanation is a pretext for invidious discrimination, because her claims are bald assertions that are not supported by "hard evidence showing that [her] version of the events is not wholly fanciful." D'Amico, 132 F.3d at 149. Other than conclusory statements that she was treated differently because of her national origin, Laurent has not come forward with facts that suggest that her national origin and not her performance was the true cause for her discharge. Drawing all permissible and reasonable inferences in Laurent's favor, the evidence and Laurent's own admissions suggest that it was more likely that Laurent's performance motivated her termination.
V. CONCLUSION
Because Laurent has failed to establish that she was qualified to work as a financial associate at Citibank, Citibank's motion for summary judgment is granted. The Clerk of the Court is directed to close this case.
SO ORDERED.