Riley v. HSBC USA, Inc. (784 F. Supp. 2d 181, 2011)

ORDER

WILLIAM M. SKRETNY, Chief Judge.

Presently before this Court are Objections to the Magistrate Judge’s Report and Recommendation. In her Response, Plaintiff opposes the Objections as untimely, however, this Court finds the Objections to have been timely filed pursuant to Rule 6 of the Federal Rules of Civil Procedure. See Fed.R.Civ.P. 6(a) and (d). Having reviewed the Report and Recommendation de novo after considering the Objections and the parties’ submissions, see 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b); Local Rule 72.3(a), this Court concurs with the findings and recommendations contained in the Report and Recommendation. Accordingly, the Objections are DENIED, and the Report and Recommendation is ACCEPTED in its entirety, including the authorities cited and the reasons given therein.

It hereby is ordered that the Report and Recommendation 46 is ACCEPTED. Further, that the Objections 47 DENIED. Further, that Defendants’ Motion for Summary Judgment 26 is GRANTED in part and DENIED in part, consistent with the Magistrate Judge’s recommendations. Further, that the Clerk of the Court is directed to terminate HSBC USA, Inc. as a defendant in this case.

FURTHER, that counsel shall appear at a status conference before this Court on 4/18/2011 at 9:00 a.m. to discuss how this case will proceed.

SO ORDERED.

REPORT and RECOMMENDATION JURISDICTION

LESLIE G. FOSCHIO, United States Magistrate Judge.

This action was referred to the undersigned by Honorable William M. Skretny on April 30, 2010, for pretrial matters including report and recommendation on dis-positive motions. The matter is presently before the court on Defendants’ motion for summary judgment (Doc. No. 26), filed April 28, 2010.

BACKGROUND

Plaintiff Dawn Riley (“Plaintiff’ or “Riley”), commenced this action on December 16, 2008, alleging employment discrimination based on race by Defendants HSBC USA, Inc. (“HSBC USA”), and HSBC Bank USA, National Association (“the Bank”) (together, “Defendants”), in violation of Title VII, 42 U.S.C. § 2000e-5, and New York Human Rights Law, New York Executive Law (“N.Y. Exec. Law”) § 290 et seq. On January 14, 2009, Defendants filed an answer (Doc. No. 4). According to a scheduling order filed December 21, 2009 (Doc. No. 21), discovery concluded on February 12, 2010.

On April 28, 2010, Defendants filed the instant motion for summary judgment (Doc. No. 26) (“Defendants’ motion”), along with supporting papers including Defendants’ Statement of Undisputed Material Facts (Doc. No. 27) (“Defendants’ Statement of Facts”), the Declaration of Joseph Walker (Doc. No. 28) (“Walker Declaration”), the Declaration of Darcie J. Oakes (Doc. No. 29) (“Oakes Declaration”), the Declaration of James R. Grasso, Esq. (Doc. No. 30) (“Grasso Declaration”), with attached exhibits A through H (“Grasso Declaration Exh(s)._”), the Declaration of Linda Bartholomew (Doc. No. 31) (“Bartholomew Declaration”), with attached exhibits A through F (“Bartholomew Declaration Exh(s). _”), and Defendants’ Memorandum of Law in Support of Their Motion for Summary Judgment (Doc. No. 32) (“Defendants’ Memorandum”). On June 11, 2010, Plaintiff filed in response to Defendants’ motion Plaintiffs L.R. 56.1 Counterstatement of Material Facts and Responses to Defendants’ L.R. 56.1 Statement in Opposition to Defendants’ Motion for Summary Judgment (Doc. No. 37) (“Plaintiffs Statement of Facts”), attached to which are Plaintiffs exhibits A through X (“Plaintiffs Exh(s). _”), the Declaration of Kevin P. Wicka, Esq. (Doc. No. 38) (“Wicka Declaration”), the Declaration of Dawn Riley (Doc. No. 39) (“Riley Declaration”), and Plaintiffs Memorandum in Opposition to Defendants’ Motion for Summary Judgment (Doc. No. 40) (“Plaintiffs Memorandum”). On June 25, 2010, Defendants filed the Reply Declaration of Linda Bartholomew (Doc. No. 42) (“Bartholomew Reply Declaration”), with attached exhibits A through D (“Bartholomew Reply Exh(s). __.”), the Declaration of Kelly Ann Hebeler (Doc. No. 43) (“Hebeler Declaration”), attached to which are copies of Plaintiffs employment discrimination charge filed with the Equal Employment Opportunity Commission (“EEOC”), and supporting exhibits, and Defendants’ Reply Memorandum of Law in Support of Their Motion for Summary Judgment (Doc. No. 44) (“Defendants’ Reply”). Oral argument was deemed unnecessary.

Based on the following, Defendants’ motion for summary judgment should be GRANTED in part, with regard to the request that HSBC USA be dismissed as a defendant to the action, but otherwise should be DENIED as to the Bank.

FACTS

Plaintiff Dawn Riley (“Plaintiff’ or “Riley”), who is white, commenced working at Defendant HSBC Bank USA, National Association (“Defendant” or “the Bank”) in February 1988, where she continued to work until February 22, 2007, at which time her employment was terminated as a result of a ‘reduction-in-force.’ Plaintiffs highest level of education is high school. Throughout Plaintiffs employment at the Bank, Plaintiff worked in various positions for the Bank and its subsidiary HSBC Mortgage Corp. (“Mortgage Corp.”). Although all of Plaintiffs positions were clerical, Plaintiff was promoted at least seven times, and regularly received satisfactory job performance reviews and pay increases. In May 2005, Plaintiff, then working as a Mortgage Corp. Sales Assistant, applied for the position of Community Reinvestment Act (“CRA”) Product and Mapping Analyst (“CRA Analyst”), a clerical position within the Bank’s Community Development Department (“CDD”). The CRA Analyst position for which Plaintiff applied had become vacant when Joseph Liermo (“Liermo”), who is white, left the position. Plaintiff first interviewed for the CRA Analyst position with CDD Vice President and Regulatory Reporting Manager Linda Bartholomew (“Bartholomew”), and then interviewed with Bartholomew’s supervisor, Senior Vice President Dan Nissenbaum (“Nissenbaum”). Bartholomew, who was hired by the Bank in 1987, obtained her CDD position in 1997. Although Nissenbaum was responsible for the CDD, he was located in the Bank’s New York City office, whereas Bartholomew worked in Buffalo. Upon being selected by the CDD for the CRA Analyst position in May 2005, Plaintiff commenced working in the CDD, where she reported directly to Bartholomew. At all times relevant, one Anthony Manna (“Manna”), as Assistant Vice President (“AVP”), Human Resources (“HR”) Generalist, provided human resources support to several departments at the Bank, including Commercial Real Estate, Community Development, Credit, and Middle Marketing Lending.

Plaintiffs move into the CRA Analyst position, where she was responsible for collecting and reporting Home Mortgage Disclosure Act (“HMDA”) and CRA-related data, was a lateral move from her previous position as a Mortgage Corp. Sales Assistant. A copy of the CRA Analyst position’s job description, Bartholomew Declaration Exh. A, lists among the position’s requisite knowledge, skills and abilities (1) two years HMDA or CRA-related experience, project management experience, or the equivalent; (2) Bachelors degree in business or related field, or equivalent experience; (3) communications, analytical, organizational, project management and planning skills; (4) proficiency with personal computers, pertinent mainframe systems and software packages; (5) strong skills in data analysis and management and computer systems programming; (6) understanding of Fair Lending laws, HMDA, CRA, other similar regulations and related Company policies, procedures and controls; and (7) the ability to work in an environment with tight time demands. Although strong computer systems programming skills are listed as required for the CRA Analyst position, the job description does not list computer programming among the CRA Analyst’s principal responsibilities.

Upon joining the CDD, the only other employee holding the same CRA Analyst position was one Linda Russo (“Russo”), who was white. Russo initially trained Plaintiff as a CRA Analyst, but within a few months of Plaintiffs arrival, Russo left the CDD for another position within the Bank. After Russo left the CDD, Plaintiff continued to learn the CRA Analyst job duties through “self-training” by reading procedure manuals. Plaintiffs Deposition Transcript (“Plaintiffs Dep. Tr.”) at 54. In August 2005, Letitia Adams (“Adams”), who is African-American, was hired for the position of Senior CRA Product and Mapping Analyst (“Senior CRA Analyst”) in the CDD. The Senior CRA Analyst position for which Adams was hired was created after Russo left the CDD. Upon her hire, Adams, like Plaintiff, reported to Bartholomew.

The CDD used a computer program called CRA-Wiz to process data and generate its HMDA and CRA reports. Although Adams’s Senior CRA Analyst position required more technical skills than Plaintiffs CRA Analyst position, and required Adams to perform computer programming and fix CRA-Wiz programming problems, Plaintiff helped train Adams, who had no prior experience in the CDD or its functions, including familiarity with CRA and HMDA regulations, or using the CRA-Wiz program. Plaintiff did not perform any CRA-Wiz programming or troubleshooting.

During the first quarter of each new calendar year, an “Employee Performance Management” or “EPM” was created for each employee containing the employee’s goals and objectives for the new year, along with anticipated completion dates for each goal and objective. The EPM contains a section entitled “MIP Goals” which, according to Bartholomew, provided the anticipated completion date for each EPM goal, and depending on whether the goals were timely reached, would ultimately determine the amount of an employee’s year-end bonus, which could range from 5 % to 10 % of an employee’s salary. Bartholomew Dep. Tr. at 64. The EPM becomes a framework for the mid-year and year-end reviews. Bartholomew prepared the EPMs for each employee Bartholomew supervised, including Plaintiff and Adams. After preparing the respective EPMs for 2006, Bartholomew submitted them to Nissenbaum for approval before delivering the EPMs to each employee. No goal or objective on Plaintiffs EPM for 2006 pertains to any technical responsibilities, computer programming or programming of CRA-WIZ, although Adams’s 2006 EPM indicates Adams is responsible for “identifying] all technical issues, ... providing] technical assistance in developing solutions,” and “ensuring] all systems are stable and providing expected data results.” Adams’s 2006 EPM. Walker’s 2006 EPM indicates that Walker also was assigned essentially similar technical responsibilities. Walker’s 2006 EPM.

The Bank’s performance review policy includes issuing mid-year and year-end reviews, at which time employees receive job performance ratings from 1 (highest) to 5 (lowest), indicating whether specific objectives have been met. Each employees’s overall rating affects an employee’s raise and year-end bonus eligibility. A rating of 3 indicates the employee meets job expectations or satisfactory job performance, and is the minimum rating required for an employee to receive a year-end bonus. Any employee whose overall year-end rating is 4 or 5 is ineligible to receive a year-end bonus. Bartholomew prepared the mid-year and year-end reviews for the employees in the CDD in Buffalo including Plaintiff and Adams.

Plaintiffs year-end overall rating for 2005 was a 3, indicating Plaintiff had met all expectations as a CRA Analyst despite Plaintiffs limited seven-month period of employment in the CDD for 2005, and Plaintiff received a year-end bonus for 2005 based on her satisfactory year-end rating. Adams’s year-end overall rating for 2005 was a 4, indicating Adams’s job performance as Senior CRA Analyst was inconsistent and not at a minimally satisfactory level. According to Bartholomew, despite satisfactorily performing the technical aspects of her Senior CRA Analyst job, Adams had “attitude problems,” displaying an attitude Bartholomew described as “very bad” and “belligerent.” Bartholomew Deposition Transcript (“Bartholomew Dep. Tr.”) at 57. According to Bartholomew, Adams generally had a good working relationship with her co-workers within the CDD, but sometimes was disrespectful when speaking on the telephone with others outside the department, and was “very disrespectful” toward Bartholomew. Id. at 61-63. Bartholomew explained that she rated Adams a 4 overall because of an interim job discussion (“IJD”) Bartholomew had with Adams regarding her bad attitude. Bartholomew Dep. Tr. at 57. The IJD serves as a written warning to an employee. Nissenbaum Deposition Transcript (“Nissenbaum Dep. Tr.”) at 29; Manna Deposition Transcript (“Manna Dep. Tr.”) at 30. Although Adams had been issued an IJD during 2005, Adams’s year-end review for 2005 contained no negative comments, whereas Plaintiffs year-end review for 2005 contained one critical comment, i.e., that Plaintiff needed to pay more attention to detail. Bartholomew admits that because any significant issues with an employee’s performance should be noted in the employee’s year-end performance review, Bartholomew’s failure to include any reference to the IJD in Adams’s year-end 2005 review rendered such review less than entirely accurate, id. at 63-64, and Manna agrees that the issuance of an IJD should have been included in an employee’s year-end review. Manna Dep. Tr. at 47.

Despite being rated only a 4 for 2005, which rendered Adams ineligible for a year-end bonus, Bartholomew, in 2006, took Adams “off the IJD” and retroactively awarded Adams a bonus for 2005. Bartholomew Dep. Tr. at 107-08. Neither Nissenbaum nor Manna could recall that any other employee ever received a retroactive year-end bonus after receiving an overall rating of 4. Nissenbaum Dep. Tr. at 53-54; Manna Dep. Tr. at 35-36. Nor does the record indicate whether Bank procedures permitted or were followed in removing Adams from the IJD and retroactively awarding Adams a year-end bonus for 2005. Nothing in the record indicates Plaintiff was ever the subject of an IJD, including while employed as a CRA Analyst in the CDD or in any other Bank department.

On June 29, 2006, Adams commenced a maternity leave which was expected to continue until mid-October 2006. While Adams was on maternity leave, Plaintiff, in addition to her own job duties, was assigned to perform all of Adams’s daily Senior CRA Analyst duties, but did not work on Adams’s long-term projects because there was not enough time to do so. An e-mail from Bartholomew on June 29, 2006 (“June 29, 2006 Bartholomew email”) instructed the CDD employees and other employees who worked with the CDD that, in Adams’s absence, any requests that would normally go to Adams should be directed to Bartholomew with copies to Plaintiff.

On July 10, 2006, Joseph Walker (“Walker”), an African-American, was hired for another CRA Product and Mapping Analyst position in the CDD. Walker’s CRA Analyst position was the same as Plaintiffs CRA Analyst position. Walker was first hired as a Bank employee on October 31, 2002, as a Post-Closing Specialist with the Bank’s Mortgage Corp. Prior to working in the CDD, Walker had no experience working with the CRA, the HMDA, or the CRA-Wiz computer program. When Walker was hired as a CRA Analyst, he held an Associate’s degree in Computer Information Systems, and was pursuing a Bachelor’s degree in Computer Information Systems, which Walker received in the spring of 2008. Plaintiff was assigned to train Walker.

On Plaintiffs 2006 mid-year evaluation, which Plaintiff received in August 2006, Riley Declaration ¶ 26, Bartholomew gave Plaintiff an overall rating of 4. Previous to the 2006 mid-year evaluation, Plaintiff had never received a rating below 3. According to Bartholomew, Plaintiffs 2006 mid-year rating of 4 was based on Plaintiffs lack of focus on details, and Plaintiffs reliance on Adams to resolve problems with troubleshooting and programming the CRA-Wiz program. Bartholomew Declaration ¶ 13; Plaintiffs 2006 Mid-Year Review. Although Plaintiff was not issued an IJD regarding her shortcomings, Bartholomew explains that “the issuance of an IJD was at the total discretion of the supervisor. ... General poor performance was documented in the midyear and year-end reviews,” and Plaintiff had not engaged in any conduct warranting discipline and an IJD. Bartholomew Reply Declaration ¶¶ 17-18. Although Plaintiffs 2006 midyear job performance was assessed as a 4, Bartholomew maintains that Plaintiffs job “performance was simply below expectations. While a continued prolonged period of performance at a 4 level might have eventually led to termination, plaintiff was not yet at that juncture.” Id. ¶ 18. Bartholomew denies any knowledge at the time of Plaintiffs 2006 mid-year evaluation of the possibility that some of the Buffalo CDD work might be transferred to Chicago, resulting in the elimination of a Buffalo position. Id. ¶ 4.

Despite the 2005 mid-year rating of 4, on August 22, 2006, Plaintiff was assigned additional duties under Phil Deterville (“Deterville”), another CDD employee. Plaintiffs work under Deterville was estimated to require 20% of Plaintiffs time, and included such duties as wire transfers, general ledger entries, monthly account reconciliations, and proofs of the CDD’s accounts. Although Nissenbaum instructed Bartholomew to amend Plaintiffs 2006 EPM to reflect Plaintiffs work for Deter-ville, Plaintiffs Exh. R, no such change was ever made.

Thus, by September 2006, Plaintiff, in addition to performing the daily duties as a CRA Analyst, Plaintiff also performed Adams’s Senior CRA Analyst duties while Adams was on maternity leave, trained Walker, and performed work for Deter-ville. Wbien Adams returned from her maternity leave in October 2006, Walker was still learning the duties for his CRA Analyst position and continued to receive training from Plaintiff. Walker also received training from Bartholomew and from Adams by telephone during Adams’s maternity leave.

While employed in the CDD, Plaintiff worked primarily with small business reporting under the CRA, Adams focused on HMDA reporting, and Walker focused on map production. Plaintiff, Adams and Walker were largely cross-trained, with Plaintiff able to perform Adams’s and Walker’s jobs, Walker and Adams could perform Plaintiffs job, and Walker also able to perform some of Adams’s job while Adams was on maternity leave. Plaintiff, Bartholomew, Adams, and Walker sat in cubicles located near each other in the CDD. Because the cubicles were open and without doors, the employees generally could hear each other’s conversations.

Plaintiff maintains that although Walker was regularly late for work and took extended lunches, including arriving more than 40 minutes late for a meeting while on a business trip in the fall of 2006, Walter was never reprimanded by Bartholomew. Plaintiffs Statement of Facts ¶¶ 56-57. Rather than reprimanding Walker, Bartholomew complimented Walker’s appearance and dress. Id. ¶ 58.

One of Adams’s on-going projects as a Senior CRA Analyst was to automate the CRA State Report Card (“State Report Card”), a monthly report used to ascertain the Bank’s loan officers’ performance compliance with respect to CRA and HMDA. Plaintiffs Statement of Facts ¶ 60. Automating the State Report Card would alleviate the need for employees to manually input data to create the report. Id. According to Plaintiff, throughout the time Plaintiff worked with Adams, the automated program properly worked only once, and every other time contained errors that had to be manually corrected, that Plaintiff was responsible for making the manual corrections, causing the report to be filed late each month, for which Bartholomew criticized only Plaintiff, and never Adams. Id. ¶¶ 61-62.

Plaintiff maintains that several remarks by Bartholomew, which Bartholomew does not deny making, indicate Bartholomew’s preference for African-American workers, rather than white workers. In December 2006, Bartholomew announced at a meeting with “the whole department,” Bartholomew Dep. Tr. at 220, described as including Bartholomew, Plaintiff, Adams, Walker, one Karla Gadley (Gadley), who is African-American, and one Phil Deterville (“Deterville”), who is white, that Bartholomew believed she was a “black person” in a previous life, “dreams about black people,” and “loves black music.” Plaintiffs Statement of Facts ¶¶ 64-65 (quoting Riley Declaration ¶ 40; and Bartholomew Dep. Tr. at 220-23). Although Bartholomew characterized her statements as “joking,” Bartholomew Dep. Tr. at 222, Plaintiff maintains no one laughed at them and, following the meeting, Plaintiff, Walker, and Adams discussed how “odd” the comments were. Plaintiffs Statement of Facts ¶¶ 65-66 (quoting Riley Declaration ¶ 42).

Both before and after Adams’s maternity leave, Bartholomew stated she wanted to be Adams’s baby’s “white grandmother.” Plaintiffs Statement of Facts ¶ 67 (quoting Riley Declaration ¶ 43; Bartholomew Dep. Tr. at 228). Bartholomew admits making the statement, id. ¶ 68 (citing Bartholomew Dep. Tr. at 228), but, other than that Bartholomew was aware that Adams’s family lived out of town, Bartholomew was unable to explain why she perceived it relevant to consider herself as the baby’s “white” grandmother. Defendants’ Statement of Facts ¶ 75 (citing Bartholomew Dep. Tr. at 228 and Plaintiffs Dep. Tr. at 78-80). According to Plaintiff, Adams “looked surprised” when Bartholomew made the “white grandmother” statement. Plaintiffs Statement of Facts ¶ 69 (quoting Riley Declaration ¶ 43).

On another occasion, while Walker and Plaintiff were talking at Plaintiffs cubicle about Walker’s church, Bartholomew walked over and stated she would like to attend Walker’s church with him. Plaintiffs Statement of Facts ¶ 70. When Walker responded that most of the congregation “did not look like Linda Bartholomew,” Bartholomew replied that she wanted to go even though she is “white.” Id. (quoting Riley Declaration ¶ 44). Plaintiff further alleges Bartholomew repeatedly complimented Walker on his dress and appearance. Riley Declaration ¶ 35.

Bartholomew had tacked to the wall of her cubicle photographs of Bartholomew and Walker, and Bartholomew and one Loretta Abrams (“Abrams”), who was Bartholomew’s second line manager to whom Nissenbaum reported, and who also is African-American. Bartholomew did not have on display in her office any pictures of Plaintiff, Nissenbaum, or Deterville.

Prior to the end of 2006, Bartholomew was advised that a shift of some work from the Bank’s Buffalo CDD to Chicago would likely result in a reduction-in-force at the Buffalo office, requiring the elimination of one of the CDD’s CRA Analyst positions. Bartholomew identified Plaintiff, Walker, and Adams as the three CRA Analysts from which the one to be terminated would be chosen. Plaintiff maintains Bartholomew’s decision as to which of the three identified employees would be terminated was made prior to completing the year-end 2006 reviews.

In a January 2, 2007 e-mail to Bartholomew (“January 2, 2007 Nissenbaum email”), Nissenbaum states that upon reviewing Bartholomew’s draft of Plaintiffs 2006 year-end evaluation, he wished to discuss some items with Bartholomew, including adding a “significant example” to substantiate a lower year-end rating, “not to pile on, but rather to illustrate the frequency and range of the issues,” as well as ensuring the “Comments section covers each and all of the Goals, both positively and negatively. Particularly where there were specific time frames — were those met?” January 2, 2007 Nissenbaum email. Nissenbaum inquired as to what would be Plaintiffs overall year-end rating, and requested Bartholomew “be sure to include reference to the variety of times you have coached provided training, support, warned, etc. on these issues.” Id. Nissenbaum also asked whether Plaintiff had met any of her 2006 MIPs. Id. Nissenbaum’s final comment was:

Sounds like the major issues are:

1. being more proactive in general

2. Meeting deadlines, deliverables (could bring out a bit more)

3. accuracy of work.

Id.

In response, Bartholomew, by e-mail dated January 3, 2007 (“January 3, 2007 Bartholomew e-mail”), advised that she would “include some other examples. I am trying to be somewhat sensitive to her feelings, I don’t want to beat her with a sledge hammer. (I know that you are not suggesting that, but I am trying to cushion some of this since it is a bad review).” In answering Nissenbaum’s inquiry as to whether Plaintiff met any of her 2006 MIPs, Bartholomew stated that Plaintiff missed a December 5, 2006 deadline to “update procedures,” and that although Plaintiff did complete automating “the process for the importation of Wiz files into the state report card,” Adams “took the lead on it.” January 3, 2007 Bartholomew e-mail. Bartholomew attached a new draft of Plaintiffs 2006 year-end review to a second e-mail to Nissenbaum on January 3, 2007, asking for Nissenbaum’s review. Bartholomew Reply Declaration Exh. C. Bartholomew’s Management Comments in the attached draft of Plaintiffs year-end review criticize Plaintiff for failing to “show initiative in all aspects of her job,” documentation errors, delaying and sometimes requiring redistribution of corrected reports; failing to cross-train on additional CRA-Wiz functionality such that Plaintiff was unable to field inquiries or resolve issues that arose during Adams’s maternity leave, lack of attention to detail, causing typographical errors in file names and dates, directing calls and inquiries relating to regulatory matters to Bartholomew rather than performing the necessary research herself, and spending increased time on personal matters. Id. Bartholomew’s proposed ratings for the three separate objectives sections of Plaintiffs 2006 EPM were 4, 5, and 4, with a proposed overall year-end rating of 4. Id.

In a January 5, 2007 e-mail to Nissenbaum (“January 5, 2007 Bartholomew email”), Bartholomew acknowledged she agreed that both Plaintiff and Walker had the same job description and job responsibilities, which could pose a problem in determining whether to terminate Plaintiff or Walker if both received the same year-end job performance rating. The full text of the January 5, 2007 Bartholomew e-mail is as follows:

As you mentioned on the phone, Dawn and Joe have the same job description/responsibilities. If we rate Dawn a “3 — Meets expectations of the job,” how are we going to justify/explain that HER role is being eliminated, but Joe who has less experience, less time on the job, and is also rated a 3 stays, but she has to find another job?

If Dawn is truly performing at a “meets expectations” level, (which she is not,) she has a legitimate argument/case that Joe should be the one to go if we have to lose a req.

That is another reason we need to give this more thought before you decide to have me change her rating from 4 to 3. We can justify keeping Joe instead of her if she isn’t doing the job, but we can’t if we rate them the same for the same job.

I think you are wise to speak with Anthony Manna about it first.

January 5, 2007 Bartholomew e-mail (italics added).

In a series of e-mails exchanged on January 9 and 10, 2007, between Nissenbaum, Manna, HSBC HR Vice President Michelle Oaks (“Oaks”), and Gary Gawel (“Gawel”), of the Bank’s Equal Employment Opportunity (“EEO”) Compliance office, the proposed elimination of Plaintiffs CRA Analyst position was discussed with regard to whether Plaintiffs termination would raise any employment discrimination issues. On January 9, 2007, Manna forwarded to Gawel an e-mail from Nissenbaum regarding the transfer of work from Buffalo to Chicago, and advising Gawel that the work transfer would result in the elimination in Buffalo of one of the CRA Analysts positions held by Plaintiff, Adams, and Walker, all of whom reported to Bartholomew. According to Manna, the CDD had identified Plaintiffs position as the one to be eliminated based on the fact that Plaintiff “was rated a “4” at mid year and “4” at year end.” Plaintiffs Exh. F at 2. As such, Plaintiff had not performed as well as Adams and Walker, who received 2006 year-end job performance ratings of 3, but Manna “just wanted to make sure that there were no issues with this prior to moving forward with the RIF.” Id. Upon receiving Manna’s e-mail, Gawel, on January 9, 2007, sent an e-mail to Oaks requesting an adverse impact report (“AI”) of the proposed termination of Plaintiff. Id. Oaks responded by e-mail the next day, although no copy of the AI is in the record. Id. at 1. By e-mail to Manna on January 10, 2007, to which a copy of the AI was attached, Gawel advised “[biased on the information provided in this email, there are no race, age or gender issues for Dawn Riley, assuming her position is being eliminated due to a reduction in force and will not be replaced.” Id.

Despite Nissenbaum’s instruction to Bartholomew on August 22, 2006, Bartholomew never amended Plaintiffs 2006 EDM to reflect the additional duties Plaintiff assumed under Deterville in August 2006. On the 2006 year-end evaluations, Bartholomew gave Plaintiff an overall rating of 4, and gave Walker and Adams overall ratings of 3. Plaintiffs year-end review contains comments by Bartholomew criticizing Plaintiff for filing monthly State Report Cards late, but does not mention that Plaintiff had to spend considerable time making manual corrections to the State Report Card which had not been properly automated by Adams. Bartholomew also failed to report the additional work Plaintiff performed during Adams’s four-month maternity leave, training Walker, and working for Deterville. Although Bartholomew admitted that Plaintiff “did the bulk of the training” of Walker, Bartholomew Dep. Tr. at 88, there is no mention of such training on Plaintiffs 2006 year-end assessment’s year-end review, or how effective it was.

In contrast, Bartholomew noted on Adams’s 2006 year-end review that “Letitia has worked closely with Joe Walker, our newest Jr. Analyst, by providing technical assistance and guidance on a regular basis.” Bartholomew Dep. Tr. at 88, Plaintiffs Exh. W. Adams’s 2006 year-end review also states that

Letitia automated the monthly CRA State Report Card. Prior to the automation of this process, the data was manually input into an excel [sic ] spreadsheet on a monthly basis. The automation of this process has resulted in significant time savings and better overall data integrity.

Plaintiffs Exh. W.

Adams’s year-end review does not reflect the problems Adams experienced in attempting to automate the State Report Card process, which Plaintiff had to manually correct, but does contain comments criticizing Adams for failing to show initiative with regard to regulatory matters so as to avoid having to direct calls and inquiries to Bartholomew, failing to consistently review and “make sure that the work completed by the junior analysts is error free and accurate before it is submitted to management for distribution,” and that, despite observed improvement, Adams “needs to continue to work on being more open and poised, and less defensive when receiving constructive feedback.” Id. Adams’s 2006 EPM included five separate objectives, four of which Adams was assessed at 3, and one at 2, for an overall 2006 year-end rating of 3. Id.

Walker’s 2006 EPM contained four separate objectives, for which Walker was rated 3, for an overall year-end rating of 3. Plaintiffs Exh. V. Walker’s 2006 year-end review contains no negative comments or criticisms. Id.

On January 18, 2007, Plaintiff was advised at a meeting with Nissenbaum and Bartholomew that the Bank was eliminating one of the CRA Analyst positions, and that Plaintiffs position had been selected for termination based on Plaintiffs 2006 year-end performance review, which Plaintiff had not yet seen. Plaintiff was given a folder containing information pertaining to a severance package and advised to contact the Bank’s HR Department with any questions. Plaintiff was further advised she could continue working in her CRA Analyst position until the year-end 2006 CRA exam was completed, which usually occurred in early March each year, and that Plaintiff could post internally for vacant Bank positions.

Plaintiff remained at her job for several weeks, during which time Plaintiff posted for several open Bank positions. Plaintiff, however, was informed that she had not been selected for any vacant position because Plaintiffs 2006 year-end review had yet to be finalized. Plaintiff maintains that upon requesting Bartholomew issue Plaintiffs year-end review, Bartholomew replied that Plaintiffs final review would discourage anyone from hiring Plaintiff. Riley Declaration ¶ 50.

In mid-February 2007, Plaintiff was issued her final 2006 year-end review, showing Plaintiffs overall rating as 4, indicating inconsistent job performance and that none of the goals established for Plaintiff on her 2006 EPM had been met. The proposed comments Bartholomew included in the draft of Plaintiffs 2006 year-end job performance evaluation for Nissenbaum’s review, Bartholomew Reply Declaration Exh. C, were included in the final draft, along with Bartholomew’s earlier proposed ratings for the three separate objectives sections of 4, 5, and 4, with an overall year-end rating of 4. Plaintiffs Exh. U.

The Bank’s year-end reviews are generated by a computer system that permits the recipient of each review to file a response. Plaintiff made several comments in response to her 2006 year-end review, including that (1) Plaintiff disagreed with the evaluation; (2) the evaluation had negatively affected Plaintiffs ability to obtain another position within the Bank; (3) the review inaccurately reported Plaintiff had failed to meet any of her goals, all of which Plaintiff had met, which was evidenced by the fact that the procedures Plaintiff prepared for her entire “team,” in accordance with Plaintiffs EPM goals, had recently been used to train a colleague from the Bank’s Chicago office; (4) the review failed to reflect that in addition to performing her own CRA Analyst job duties, Plaintiff also performed all the daily functions of Adams’s Senior CRA Analyst position during Adams’s 3/6 month maternity leave, while, at the same time, training Walker; (5) the poor year-end evaluation was inconsistent with management’s statements that Plaintiff had “really stepped up” and that Plaintiffs efforts would not “go unnoticed to senior management”; (6) the automation of the monthly State Report Card had not worked, requiring Plaintiff to make manual corrections and resulting in the reports being filed late; (7) Plaintiff could not fix the State Report Card program because Plaintiff is not a programmer; (8) the review failed to reflect Plaintiffs work for Deterville, which included being cross-trained for wire transfers, general ledger entries, monthly account reconciliations, and proofs of the CDD’s accounts; (9) Bartholomew had requested CDD employees direct any regulatory questions to Bartholomew, then criticized Plaintiff for failing to answer such questions despite the fact that Bartholomew never forwarded the questions to Plaintiff; (10) the evaluation indicated racism against Plaintiff which was further evident from comments Bartholomew made regarding dreaming of “black people,” and that Bartholomew believed she was “black in a previous life”; (11) Bartholomew took issue with the fact that Plaintiff smokes cigarettes, telling Plaintiff had Bartholomew known Plaintiff smoked, Bartholomew never would have hired Plaintiff for as a CRA Analyst; (12) Bartholomew’s response to Plaintiffs request for her final year-end review to permit Plaintiff to successfully post for another Bank position, was to state “in a demeaning tone ‘well you will never get hired after they read my comments on your review’ ”; (13) Bartholomew had since become hostile toward Plaintiff, causing Plaintiff to have trouble sleeping and to suffer emotional distress; and (14) querying how it could be that, after 19 years of satisfactory job performance in her previous positions with the Bank, Plaintiff was not meeting job expectations and why that fact was not earlier brought to Plaintiffs attention. Plaintiffs Exh. X.

On February 16, 2007, Plaintiff e-mailed these comments to Manna who, in a telephone conversation with Bartholomew, made hand-written notations on Plaintiffs comments, memorializing Bartholomew’s responses to some of Plaintiffs comments, including that (1) Plaintiffs mid-year overall performance rating of 4 was a warning to Plaintiff; (2) Plaintiffs failure to attempt to fix the automated State Report Card program, showed a lack of initiative; (3) CDD employees would send regulatory questions to Bartholomew because they were concerned that Plaintiff was not thoroughly researching for the correct answers to their questions and Plaintiffs answers could not be trusted; (4) Bartholomew’s comments to Plaintiff about smoking were intended as a joke, although Bartholomew did urge Plaintiff to quit; and (5) Bartholomew’s statements about being black in a previous life and dreaming about black people were made during a discussion with Plaintiff, Adams, Walker, Deterville and Gadley about reincarnation. Plaintiffs Exh. X. Manna does not recall speaking with Plaintiff about Plaintiffs comments.

On February 22, 2007, Plaintiff forwarded to Manna eleven e-mails Plaintiff had received during 2006 from Bartholomew, Nissenbaum and Gadley complimenting Plaintiff for her job performance, and requested Manna attach the forwarded emails to Plaintiffs 2006 year-end review. Later that same day, Manna contacted Plaintiff by telephone. Manna did not question Plaintiff about her complaints but, rather, advised Plaintiff that if she truly felt as Plaintiff had described in her e-mail, that Plaintiff could leave her job that day. Plaintiffs final day of work at the Bank was February 22, 2007.

On July 18, 2007, Plaintiff filed with the Equal Employment Opportunity Commission (“EEOC”), a charge of employment discrimination (“EEOC Charge”). In its Verified Answer to the EEOC Charge (“EEOC Response”) the Bank submitted on August 9, 2007, the Bank stated that the decision to terminate Plaintiff was made by “Human Resources.” Charge Answer at 2 (“Human Resources had made the recommendation to have Complainant [Plaintiff] terminated .... ”). The Bank relied on the January 9 and 10, 2007 emails exchanged between Nissenbaum, Manna, Oaks, and Gawel in support of their assertion that the decision to terminate Plaintiff was made by the Bank’s HR Department.

Bartholomew voluntarily resigned from the Bank in February 2008. Bartholomew Declaration ¶ 2. At the time of her resignation, Bartholomew still held her Vice President and Regulatory Reporting Manager position in the CDD. Id.

On September 17, 2008, the EEOC issued its determination (“Right to Sue letter”) that, based upon its investigation, the EEOC was unable to conclude that Defendants had violated any statutes by terminating Plaintiff. Plaintiff was also advised that she had ninety days from the receipt of the Right to Sue letter to commence legal action. Plaintiff commenced the instant action on December 16, 2008.

DISCUSSION

1. Summary Judgment

Defendants move for summary judgment, arguing that the Bank has proffered a legitimate, non-discriminatory reason for Plaintiffs termination, i.e., Plaintiffs poor job performance, which Plaintiff is unable to show was mere pretext for racial discrimination. Defendants’ Memorandum at 5-6. According to Defendants, that the decisions to hire and terminate Plaintiff from the CRA Analyst position were made by Bartholomew who, like Plaintiff, is white, creates an inference in Defendants’ favor against discrimination, Defendants’ Memorandum at 6-8; Plaintiff is unable to show that she is similarly situated to Adams whose position was higher than Plaintiffs, id. at 8-9; Walker’s qualifications for the CRA Analyst position were superior to Plaintiffs given that Walker possessed an Associate’s degree and was working toward a Bachelor’s degree in Computer Information Systems, id. at 9-11; Plaintiffs 2006 job performance was assessed at 4 compared to Walker and Adams, each of whom were assessed at 3, id. at 11-14; that Bartholomew’s remarks regarding African-Americans failed to support a finding of discriminatory motivation because such comments are unrelated to any decisional process, were only sporadic, id. at 14-21, and that although Bartholomew failed to admonish Walker for his tardiness, Bartholomew also accommodated Plaintiffs requests to leave work early for appointments and family obligations, which had increased while Plaintiff worked for Bartholomew because Plaintiff was in the process of a divorce and needed to take time to meet with her attorney and attend court proceedings. Id. at 21-22.

In opposition to summary judgment, Plaintiff asserts that the evidence establishes material issues of fact as to whether Defendants’ purported nondiscriminatory reason for terminating Plaintiff was mere pretext for unlawful racial discrimination. Plaintiffs Memorandum at 6-22. In particular, Plaintiff argues that a discrepancy in the purported legitimate business reason given by Defendants in the instant case, identifying Bartholomew as having made the decision to terminate Plaintiff, as compared to the reason provided in the EEOC Charge Answer that the decision to terminate Plaintiff was made by HR, is evidence of pretext. Id. at 6-14. Other evidence of pretext on which Plaintiff relies in opposition to summary judgment include Plaintiffs 2006 mid-year and year-end reviews in which Plaintiff received overall ratings of 4 and Adams and Walker were rated 3, id. at 14-19, and Bartholomew’s comments regarding race. Id. at 19-22.

In further support of summary judgment, Defendants maintain that Plaintiffs argument regarding inconsistent reasons proffered by the Bank’s EEO office and Defendants in this action is “based on a flagrant misreading of HSBC Bank’s EEOC response and a selective presentation of evidence,” and takes the Bank’s EEOC Response out of context. Defendant’s Reply at 1-4. Defendants further argue that certain inferences against discrimination recognized by the Second Circuit apply in this case, id. at 5-6, and that contrary to Plaintiffs assertions, the evidence fails to establish that Bartholomew’s comments and actions were indicative of any racial preference. Id. at 6-10.

Summary judgment of a claim or defense will be granted when a moving party demonstrates that there are no genuine issues as to any material fact and that a moving party is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a) and (b); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250-51,106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Rattner v. Netburn, 930 F.2d 204, 209 (2d Cir.1991). The party moving for summary judgment bears the burden of establishing the nonexistence of any genuine issue of material fact and if there is any evidence in the record based upon any source from which a reasonable inference in the non-moving party’s favor may be drawn, a moving party cannot obtain a summary judgment. Celotex, 477 U.S. at 322, 106 S.Ct. 2548. “A dispute about a ‘genuine issue’ exists for summary judgment purposes where the evidence is such that a reasonable jury could decide in the non-movant’s favor.” Beyer v. County of Nassau, 524 F.3d 160, 163 (2d Cir.2008) (quoting Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir.2007)). Once a party moving for summary judgment has made a properly supported showing of the absence of any genuine issue as to all material facts, the nonmoving party must, to defeat summary judgment, come forward with evidence that would be sufficient to support a jury verdict in its favor. Goenaga v. March of Dimes Birth Defects Foundation, 51 F.3d 14, 18 (2d Cir.1995).

2. Employment Discrimination

Title VII makes it “an unlawful employment practice” for an employer to discriminate against an employee because of the employee’s “race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). Similarly, as relevant to this action, the NYHRL makes it unlawful for an employer to discriminate against an employee based on the individual’s race. N.Y. Exec. Law § 296(1)(a). The standard applied by the court to evaluate race discrimination claims under the NYHRL is parallel to the analysis used in evaluating Title VII claims. Cruz v. Coach Stores, 202 F.3d 560, 565 n. 1 (2d Cir.2000).

When a plaintiff alleges disparate treatment with regard to employment, liability depends on whether the protected trait, here, race, actually motivated the adverse employment decision. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 141, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (citing Hazen Paper Co. v. Biggins, 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993)). In the instant case, because Plaintiff alleges her employment with the Bank was terminated based on her race, Plaintiff must establish that her race “ ‘actually played a role in [the employer’s decisionmaking process] and had a determinative influence on the outcome.’ ” Reeves, 530 U.S. at 141, 120 S.Ct. 2097 (quoting Biggins, 507 U.S. at 610, 113 S.Ct. 1701) (bracketed material in original).

Initially, the court addresses Defendants’ reference to Plaintiffs “reverse discrimination claim” on the basis that Plaintiff, who is white, alleges Defendants chose to terminate Plaintiffs employment position, rather than the position held by Adams or Walker, both of whom are African-American. Defendants’ Memorandum at 1 (“This is a reverse employment discrimination case ... ”). “Title VII of the Civil Rights Act of 1964 prohibits the discharge of ‘any individual’ because of ‘such individual’s race,’ § 703(a)(1), 42 U.S.C. § 2000e-2(a)(1). Its terms are not limited to discrimination against members of any particular race.” McDonald v. Santa Fe Trail Trans. Co., 427 U.S. 273, 279, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976) (reversing dismissal on the pleadings of Title VII employment discrimination action brought by two white plaintiffs who alleged they were discharged from their employment with a transportation company for misappropriating cargo from one of the company’s shipments, but an African-American employee charged with the same offense was not discharged). Accordingly, that Plaintiff is white and not a member of a minority group does not foreclose a finding of race-based employment discrimination.

A. Defendant HSBC USA

Defendants argue that Defendant HSBC USA is a bank holding company, owning 100% of the stock of Defendant Bank. Defendants’ Memorandum at 23; Oakes Declaration ¶ 3. HSBC USA has no control over nor directs the labor and employee relations of the Bank. Defendants’ Memorandum at 23; Oakes Declaration ¶ 5. As such, Plaintiff was employed by the Bank, but not by HSBC USA. Defendants’ Memorandum at 23; Oakes Declaration ¶ 4. Accordingly, Defendants seek to have HSBC USA dismissed as a Defendant to this action. Defendants’ Memorandum at 22-23. Plaintiff has not argued in opposition to this request.

A plaintiff may seek relief for employment discrimination under both Title VII and New York’s Human Rights Law only against an employer. Gulino v. New York State Educ. Dept., 460 F.3d 361, 370 (2d Cir.2006) (“the existence of an employer-employee relationship is a primary element of Title VII claims.”); Herman v. Blockbuster Entertainment Group, 18 F.Supp.2d 304, 313-14 (S.D.N.Y.1998) (considering whether defendant exercised sufficient control over plaintiff so as to be held liable as an employer under N.Y. HRL), aff'd, 182 F.3d 899 (2d Cir.), cert, denied, 528 U.S. 1020, 120 S.Ct. 529, 145 L.Ed.2d 409 (1999). Not only has Plaintiff failed to even attempt to establish HSBC USA was her employer, but Plaintiff, in responding in opposition to summary judgment, refers to only the Bank as a defendant, thereby indicating Plaintiff concedes that she was employed by the Bank, but not be HSBC USA. See, e.g., Plaintiffs Memorandum at 1 (“Defendant HSBC Bank’s motion for summary judgment should be denied .... ”). Accordingly, Defendants’ motion should be GRANTED with regard to the request that HSBC USA be dismissed as a defendant to this action.

B. Burden-Shifting Analysis

Claims of employment discrimination are subject to a burden-shifting analysis set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 506-507, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993). The plaintiff bears the initial burden of establishing a prima facie case of unlawful discrimination, id., and the plaintiffs initial burden is said to be “de minimus.” Cronin v. Aetna Life Insurance Co., 46 F.3d 196, 202 (2d Cir.1995). Upon such a showing, the burden of going forward shifts to the employer, who must articulate some legitimate, non-discriminatory reason for the employee’s termination or adverse employment action. Texas Dept, of Community Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); Hicks, 509 U.S. at 507, 113 S.Ct. 2742. “This burden is one of production, not persuasion; it ‘can involve no credibility assessment.’ ” Reeves, 530 U.S. at 142, 120 S.Ct. 2097 (quoting Hicks, 509 U.S. at 509, 113 S.Ct. 2742). The ultimate burden of production then shifts back to the plaintiff to demonstrate ‘“that the proffered reason was not the true reason for the employment decision.’” Hicks, 509 U.S. at 508, 113 S.Ct. 2742 (quoting Burdine, 450 U.S. at 256, 101 S.Ct. 1089). “An employer’s reason for the termination [or adverse employment action] cannot be proven to be a pretext for discrimination unless it is shown to be false and that discrimination was the real reason.” Quaratino v. Tiffany & Co., 71 F.3d 58, 64 (2d Cir.1995) (bracketed text added). The burden of persuasion, however, at all times remains with the plaintiff on the issue of the true motivation for the discrimination. Reeves, 530 U.S. at 143, 120 S.Ct. 2097; Hicks, 509 U.S. at 507, 113 S.Ct. 2742; Burdine, 450 U.S. at 253, 101 S.Ct. 1089. Thus, to defeat a defendant’s properly supported motion for summary judgment, the plaintiff must produce sufficient evidence to support a rational finding that the legitimate, non-discriminatory reasons proffered by the employer were false, and that more likely than not the employee’s race was the real reason for the discharge or adverse employment action. Holt v. KMI-Continental, Inc., 95 F.3d 123, 129 (2d Cir.1996), cert, denied, 520 U.S. 1228, 117 S.Ct. 1819, 137 L.Ed.2d 1027 (1997).

1. Prima Facie Case

To make out a prima facie case of employment discrimination under Title VII, a plaintiff must show (1) membership in a protected class, (2) satisfactory job performance, (3) termination of employment or other adverse employment action, and (4) the ultimate filling of the position with an individual who is not a member of the protected class. Farias v. Instructional Systems, Inc., 259 F.3d 91, 98 (2d Cir.2001) (citing Quaratino, 71 F.3d at 64); Meiri v. Dacon, 759 F.2d 989, 995 (2d Cir.), cert, denied, 474 U.S. 829, 106 S.Ct. 91, 88 L.Ed.2d 74 (1985). In the instant case, however, Plaintiff does not allege that she was replaced by an employee of another race; rather, Plaintiff maintains her CRA Analyst position was selected for termination because Plaintiff is white, whereas Adams and Walker, both of whom were retained in their respective CRA Analyst positions, are African-America. Nevertheless, “the fourth prong of the prima facie case may be satisfied if the plaintiff can demonstrate that the discharge or adverse employment action occurred under circumstances giving rise to an inference of discrimination on the basis of plaintiffs membership in that class.” Farias, 259 F.3d at 98 (citing McLee v. Chrysler Corp., 109 F.3d 130, 135 (2d Cir.1997); and James v. New York Racing Ass’n, 233 F.3d 149, 153-54 (2d Cir.2000) (noting prima facie case is made out by showing membership in a protected class, qualification for the position, an adverse employment action and “preference for a person not of the protected class” (internal quotation marks and citation omitted))).

A plaintiffs burden to establish a prima facie case of employment discrimination to defeat summary judgment is de minimus, McLee, 109 F.3d at 134 (citing cases), and may be established based on either direct or circumstantial evidence. Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d Cir.2001) (“direct evidence of discriminatory intent [with regard to employment] is rare and such intent often must be inferred from circumstantial evidence found in affidavits and depositions”); Luciano v. Olsten Corp., 110 F.3d 210, 215 (2d Cir.1997) (“Direct evidence is not necessary, and a plaintiff charging discrimination against an employer is usually constrained to rely on the cumulative weight of circumstantial evidence.”). Further, as the court may not resolve issues of fact on a summary judgment motion, its determination is limited to “whether the proffered admissible evidence shows circumstances that would be sufficient to permit a rational finder of fact to infer a discriminatory motive.” McLee, 109 F.3d at 135.

In the instant case, Defendants concede that Plaintiff has set forth a prima facie case of employment discrimination based on race. Defendants’ Memorandum at 5 (“For purposes of this motion, defendants do not contest that plaintiff can satisfy the requirements for a prima facie case.”). As such, the court turns to whether Defendants have demonstrated a legitimate, nondiscriminatory reason for Plaintiffs termination.

2. Legitimate, Non-Discriminatory Reasons for Adverse Action

In assessing whether the Bank has articulated a legitimate reason for selecting Plaintiff, rather than Adams or Walker, for termination, the court need not inquire as to whether Plaintiff, rather than Adams or Walker, was more qualified for the position; rather, so long as the proffered reasons are legitimate and nondiscriminatory, an employer is free to choose among qualified candidates without risking liability under Title VIL Burdine, 450 U.S. at 259, 101 S.Ct. 1089; Meiri, 759 F.2d at 995 (holding courts “must refrain from intruding into an employer’s policy apparatus or second-guessing a business’s decision-making process”). The law is well-established that federal courts hearing discrimination claims do not “sit as a super-personnel department” to reexamine a firm’s business decision about how to evaluate the relative merits of education and experience in filling job positions. Scaria v. Rubin, 117 F.3d 652, 655 (2d Cir.1997). Once the defendant employer introduces evidence of legitimate, nondiscriminatory reasons for the challenged adverse employment action sufficient to satisfy the defendant’s burden of production, the presumption created by the Plaintiffs prima facie case is rebutted, and drops from the case. Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (citing Hicks, 509 U.S. at 507-11,113 S.Ct. 2742).

In the instant case, Defendants maintain that the decision to eliminate Plaintiffs CRA Analyst position, thereby terminating Plaintiff, instead of Adams or Walker, was based solely on Plaintiffs job performance which, in 2006 was rated as 4, i.e., inconsistent job performance below expected level, and which was lower than the 3 which both Adams and Walker were rated, indicating job performance at expected levels. In support of this argument, Defendants have submitted copies of the 2006 mid-year and year-end reviews for Plaintiff, Adams, and Walker, which establish that in 2006, at both mid-year and year-end, Plaintiff was rated at 4, Plaintiffs Exh. U, Adams was rated at 3, Plaintiffs Exh. W, and Walker was rated at 3, Plaintiffs Exh. V. An employee’s work record can establish either that the employee’s job performance was unsatisfactory or that the employer’s motive for an adverse employment action was not discriminatory. McLee, 109 F.3d at 135-37 (upholding district court’s determination that a discharged employee was unable to establish a prima facie case for racially discriminatory discharge where the record indisputably showed the employee’s job performance was unsatisfactory in 12 out of 23 areas and that he had been disciplined for repeated tardiness). As such, Defendants have met their burden of establishing a legitimate, non-discriminatory reason for Plaintiffs termination.

The burden of proof thus shifts back to Plaintiff to establish that Defendants’ proffered, legitimate reason for terminating Plaintiff, rather than Adams or Walker, was mere pretext for race discrimination.

3. Pretext

Once an employer articulates a non-discriminatory reason for the challenged adverse employment action, “the presumption of discrimination ‘drops out of the picture,’ .... [and] the employer will be entitled to summary judgment ... unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination.” James, 233 F.3d at 154 (quoting Hicks, 509 U.S. at 510-11, 113 S.Ct. 2742, and citing Burdine, 450 U.S. at 255-56, 101 S.Ct. 1089). In other words, “the plaintiff — once the employer produces sufficient evidence to support a nondiscriminatory explanation for its decision— must be afforded the ‘opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.’ ” Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (quoting Burdine, 450 U.S. at 253, 101 S.Ct. 1089).

Defendants’ “motion for summary judgment may be defeated where ‘a plaintiffs prima facie case, combined with sufficient evidence to find that the employer’s asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.’ ” Byrnie v. Town of Cromwell, Bd. of Education, 243 F.3d 93 (2d Cir.2001) (citing Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (“the trier of fact may still consider the evidence establishing the plaintiffs prima facie case ‘and inferences properly drawn therefrom ... on the issue of whether the defendant’s explanation is pretextual.’ ” (quoting Burdine, 450 U.S. at 255, n. 10, 101 S.Ct. 1089))). The creation of a genuine issue of fact as to pretext is not, without more, sufficient to rebut a defendant’s legitimate non-discriminatory reason; rather, “[t]here must also be evidence that would permit a rational factfinder to infer that the discharge was actually motivated, in whole or in part, by discrimination on the basis of [the protected trait].” Grady v. Affiliated Central, Inc., 130 F.3d 553, 561 (2d Cir.1997). Nevertheless, the plaintiffs failure to produce “any evidence, other than conclusory statements unsupported by the record, to rebut the legitimate, nondiscriminatory reasons offered by [the employer for the adverse employment action], let alone evidence that could reasonably support a verdict in [plaintiffs] favor,” warrants dismissal on summary judgment. Farias, 259 F.3d at 99. In this case, Plaintiff has made a substantial showing of circumstantial evidence from which, taken together, a reasonable jury could conclude that Defendants’ proffered legitimate, non-discriminatory reason for terminating Plaintiff, instead of Adams or Walker, was false and, thus, a pretext for Bartholomew’s race-based employment discrimination.

First, Defendants argue that the fact that both decisions to hire and terminate Plaintiff from the CRA Analyst position were made by Bartholomew who, like Plaintiff, is white, creates an inference in Defendants’ favor against discrimination. Defendants’ Memorandum at 6-8. The Second Circuit recognizes that “when the pers