Garcia v. Barclays Capital, Inc. (281 F. Supp. 3d 365, 2017)

United States District Court for the Southern District of New York 2017-11-15

Citations

Full opinion text

MEMORANDUM & OPINION

VERNON S. BRODERICK, United States District Judge:

Plaintiff Maria Garcia (“Plaintiff’ or “Garcia”) brings this employment discrimination action against Defendants Barclays Capital, Inc. and Barclays Bank PLC (together, “Barclays” or “Defendants”). Plaintiff asserts claims of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. (“Title VII”), the New York State Human Rights Law, N.Y. Exec. Law § 290e et seq. (“NYSHRL”), the New York City Human Rights Law, N.Y. City Admin. Code §§ 8-101 et seq. (“NYCHRL”), and Section 1981 of the Civil Rights Act of 1866, 42 U.S.C. § 1981 (“Section 1981”). Plaintiff also asserts claims under the Equal Pay Act, 29 U.S.C. § 206(d) (“EPA”) and the New York State Labor Law § 194 (“NYLL”) related to Defendants’ alleged failure to pay their male and female employees equal wages. Before me is Defendants’ motion for summary judgment on all Plaintiffs claims. Because there is no genuine dispute of material fact relating to Plaintiffs employment discrimination claims and because Plaintiff has failed to demonstrate that her race or sex was a motivating factor in the adverse employment acts, Defendants’ motion for summary judgment is GRANTED with respect to Plaintiffs causes of action under Title VII, NYSHRL, and Section 1981. Because there is no genuine dispute of material fact relating to Plaintiffs' unequal pay claims and because Barclays has proven its affirmative defense that it relied on factors other than sex in determining compensation, Defendants’ motion for summary judgment is GRANTED with respect to Plaintiff’s causes of action under the EPA and NYLL. In light of the fact that Plaintiffs federal claims are dismissed, I decline to exercise supplemental jurisdiction with respect to Plaintiffs cause of action under the NYCHRL, and thus those claims are dismissed without prejudice to them being asserted in state court.

I. Background

A. Barclays Hires Garcia

Garcia is a Latina woman, and was born and raised on Long Island, New York to a Dominican father and an El Salvadoran mother. (Defs.’ 56.1 ¶¶ 40, 60.) In August 1997, Garcia began her employment at Lehman Brothers (“Lehman”), an international investment bank, as a sales assistant on Lehman’s Emerging Markets (“EM”) Sales desk. (Id. ¶¶41, 43.) Between 1997 and 2006, Lehman promoted Garcia three times: to Junior Salesperson in 1999; to Vice President in 2001; and to Director in 2006. (Id. ¶¶ 44, 45, 47.) During her final six years at Lehman, Garcia reported to Robert Koch, a managing director and the head of New York EM Sales. (Id. ¶ 50.)

Lehman’s holding company filed for Chapter 11 bankruptcy protection on September 15, 2008, and Barclays, an international investment bank, acquired portions of Lehman’s business, including Lehman’s EM Sales group. (See id. ¶ 42; The New York Times, http:/Avww.nytimes.com/2008/ 09/15/business/151ehman.html (last visited Oct. 2, 2017).) In connection with Bar-clays’s acquisition of Lehman’s EM Sales group, Andrew Gold, a managing director at Barclays and the head of Barclays’ New York EM Sales, interviewed Garcia for a position at Barclays and offered Garcia a position in EM Sales on the Nobramex team at Barclays. (Defs.’ 56.1 ¶¶ 1, 54.) In addition to Garcia, Barclays hired Koch to work as a salesperson on the U.S. EM Sales team; Koch reported to Gold from the time he joined Barclays in 2008 until Gold’s departure in 2014. (Id. ¶ 55; Koch Deck ¶ 1.) In August or September 2009, Koch became the head of the U.S. EM Sales team, and Gold remained his direct manager. (Defs.’ 56.1 ¶ 55.)

In March 2009, Gold promoted Garcia to head of the Nobramex team, on a probationary basis. (Id. ¶¶ 4, 80.) In May 2009, Gold made the promotion permanent. (Id. ¶ 87.) In the summer of 2009, Gold nominated Garcia for Barclays’ Woman of the Year Award; in support of his nomination of Garcia, Gold wrote that Garcia was “an outstanding leader and she continues to maintain an unwavering focus on her clients and her colleagues.” (Id. ¶ 6.) In response to being nominated, Garcia wrote to Gold, thanking him “so very much.” (Id.) Garcia was selected as one of fourteen finalists out of 411 nominees for the Woman of the Year Award. (Id. ¶ 7.)

Gold rated Garcia’s performance “A (mid)” in his 2009 mid-year evaluation of Garcia. (Id. ¶ 90.) In addition, Gold wrote that Garcia “has done extremely well taking over the Nobramex team .... She stepped up and has proven that she is an efficient manager as well as producer. She is looked up to by others on the desk and is viewed as extremely , reliable .... I believe Maria is one of the most important resources on the desk ...,” (Id.) In reviewing Garcia’s work to set her compensation for 2009, Gold determined that Garcia had a good year in 2009, and that she was “off to a good start.” (Id. ¶ 97.) In his 2009 year-end review, Gold rated Garcia’s performance “A (high),” the highest possible rating. (Id. ¶¶ 97,163.) •

B. Gold Reassigns Garcia’s U.S. Accounts

During her tenure at Lehman, the majority of Garcia’s “accounts'were with US-based clients.” (Garcia Decl. ¶ 4.) When Garcia joined Barclays she continued to cover certain U.S. accounts that she had covered while at Lehman, but she did not continue to cover all of the accounts that she had when she- was at Lehman. (Id. ¶¶ 6, 8, 9,14.) For example, Garcia covered JP Morgan at Lehman, but never covered JP Morgan while at Barclays. (Id. ¶ 8.) In January 2010, Gold reassigned the hedge fund accounts Garcia had been covering to salespeople in U.S. EM Sales who worked under Koch. (Id.; Defs.’ 56.1 ¶99; Koch Decl. ¶¶ 2, 3.) Gold stated that the decision to reassign the U.S. accounts was based on the preference for keeping U.S. production and Nobramex production separate from one. another. (Defs.’ 56.1 ¶ 99.) Gold returned certain of these U.S. accounts to Garcia in or around January 2011, including Discovery, Fortress, QVT, and Traxis Partners. (Defs.’ 56;1 ¶¶ 18, 25; Garcia Decl. ¶ 32.) • -

C. Gold Nominates Garcia for Promotion to Managing Director

In March 2010, Gold nominated Garcia for promotion to managing director. (Defs.’ 56.1 ¶ 108.) Gold wrote that he nominated Garcia in 2010 because “he thought she was off to a great'start-in running Nobra-mex, she had made a lot of progress, and she deserved the nomination.” (Id.) Garcia was the only candidate Gold nominated for promotion to managing director in- 2010, (id. ¶ 13), and was the only non-white nominee from EM Sales that year, (id. ¶ 109). Garcia’s candidacy advanced to the final round of the process; however, Garcia was not selected for promotion to managing director. (Id. ¶ 111.)

The Global Partnership Committee (the “GPC”) was a group of senior Barclays managers who reviewed candidates for managing director, and at the time was composed of two women and only one nonwhite member, a non-Latino man. (Id. ¶119.) The GPC decided not to promote Garcia in 2010 because it concluded “she did not have enough production exclusively under her name” and she had “not yet had time to develop a revenue track record of performance against budget and,she has not been able to prove her people management capabilities.” (Shea Aff. Ex. 26; see Defs.’ 56.1 ¶¶ 111, 119.) When Gold told Garcia the GPC did not select her for promotion, he told her that he did not want a “pity party” from her, and no,more “Mama Maria.” (Defs.’ 56,1 ¶ 115.)

Gold again nominated Garcia for promotion to managing director in 2011; however, Garcia removed herself from consideration. (Id. ¶26.) Garcia spoke with a Barclays -human resources representative and they agreed that Garcia should focus on getting her compensation higher in 2011 and then turn her attention. to a higher corporate title. (Id.)

In 2012, Gold-placed Garcia on his preliminary “long list” of candidates for managing director, but he ultimately did not advance her for promotion “because she had not improved her production or performance, and he thought it was .unlikely the committee would promote her.” (Id. ¶ 31.)

D. Barclays Undergoes a Series of Reductions in Force

In January 2011, Barclays underwent a reduction in force (“RIP”). (Id. ¶¶ 22,165.) In connection with the 2011 RIF, Gold was required to select three roles in EM Sales for redundancy and layoff. (Id. ¶ 22.) Gold consulted’ Pamela Sinclair in Barclays’ human resources department regarding whether to include Garcia in the 2011 RIF. (Gold Decl. ¶ 2.) Sinclair worked in Bar-clays’ human resources department from 1996 until 2013, and between 2005 ¿nd 2013 she was a Director in that department. (Sinclair Decl. ¶ 1.) Sinclair supported the Markets division which included EM Sales where Gold and Garcia worked. (Id. ¶ 2.) Sinclair urged Gold to include Garcia in the 2011 RIF, (Defs.5 56.1 ¶23), because in her opinion Garcia was- not performing well, did not demonstrate potential for long-term success, and her belief that Garcia’s role was not needed,- (Sinclair .Decl. ¶ 3). Gold did not adopt Sinclair’s recommendation- to select Garcia’s role for redundancy and did not include Garcia in the 2011 RIF. (Id. ¶ 3; Defs.’ 56.1 ¶24.) Instead Gold presented Garcia with three options: (1) volunteer for the RIF and take a severance package; (2) transfer to the U.S. EM Sales team or look-for other opportunities within Bar-clays; or (3) stay in her current role and improve her production and performance. (Defs.’ 56.1- ¶ 2,4.) After considering these options, Garcia decided to remain in her role as head of the Nobramex team in EM Sales. (Id. ¶ 25.) In addition, Gold assigned Garcia some U.S. accounts' to help her increase her production; the U.S. accounts that Gold assigned to Garcia included certain of the accounts Garcia had covered while she was . at Lehman that had been reassigned to others in 2010, including Discovery, Fortress, QVT, .and Traxis Partners. (Id. ¶¶ 18, 25,)

Barclays underwent another RIF in February 2013. (Id. ¶ 32.) Gold selected Garcia’s position for redundancy and included her in' the 2013 RIF. (Id.) Gold stated that he based this decision on Garcia’s low performance, low production, and his belief that her position was not necessary going forward. (Id.; Gold Decl. ¶5.) Garcia’s position was not re-filled. (Defs.’ 56.1 ¶ 34.) After'Garcia’s employment was terminated as part of the 2013 RIF, Gold assigned management of the Nobramex .team to* David Huerta, who was then the head of the Mexico EM Sales. (Id.; Gold Decl. 115.) Huerta was also given management of Brazil. (Defs.’ 56.1 ¶ 32.)

In 2014, Barclays underwent another RIF; Gold’s position was selected for redundancy and he was included in the 2014 RIF. (Gold Decl. ¶ 1.) As a result, Gold is no longer employed by Barclays. (Id.) As of May 2015, Koch—who continued to report to Gold until Gold’s departure from Barclays—remains employed by Barclays as head of the U.S. EM Sales team. (Koch Decl. ¶ 1.)

E. Barclays’ Total Compensation Program and Garcia’s Compensation

Barclays compensates its employees based on a total compensation program consisting of base fixed pay, discretionary incentive awards, and benefits. (Defs.’ 56.1 ¶ 37.) Discretionary incentive awards are determined at Barclays’ sole discretion and are not guaranteed. (Id.) Barclays rewards eligible employees based on the following factors: individual and team performance, meeting or exceeding established goals, market competitiveness, and the overall success of each business, including Bar-clays’ overall performance. (Id.) Specifically, with respect to the total compensation program, the Barclays employee handbook states:

Barclays goal is to offer a total compensation program that is competitive in its market and supportive of the business strategies in order to attract, retain, and motivate talented employees. Barclays pays for individual performance within the context of factors such as job position, business results, including the overall performance of the firm, and geography. Barclays compensation is designed to support these goals by ensuring that employees receive fair, equitable and competitive pay for the job that they perform.

(Shea Aff. Exs. 16-20.)

Pursuant to the terms of her offer letter, (Shea Aff. Ex. 5), Garcia was paid $700,000 in total compensation for her work in 2008. (Defs.’ 56.1 ¶ 3.) This compensation consisted of a $200,000 annual salary and $500,000 in cash and stock incentive payments. (Id.) Garcia’s 2008 bonus was guaranteed from Lehman. (Id.) For the 2009 performance year, Barclays paid Garcia $1,000,000 in total compensation, which was comprised of $200,000 in salary, $35,000 in a one-off payment, and $765,000 in discretionary incentive awards. (Id. ¶ 10.) For the 2010 performance year, Bar-clays paid Garcia $605,000 in total compensation, which was comprised of $200,000 in salary, $85,000 in fixed payments, and $320,000 in discretionary incentive awards. (Id. ¶ 20.) For the 2011 performance year, Barclays paid Garcia $720,000 in total compensation, which was comprised of $200,000 in salary, $85,000 in fixed payments, and $435,000 in discretionary incentive awards. (Id. ¶ 29.) For the 2012 performance year, Barclays paid Garcia $285,000 in total compensation, which was comprised of $200,000 in salary and $85,000 in fixed payments. (Id. ¶ 35.)

Garcia’s total production in 2009 was $10,102,134. (Id. ¶ 8.) Garcia’s total production in 2010 was $3,603,858. (Id. ¶ 16.) In light of the 64% decrease in Garcia’s production from 2009 to 2010, Gold instructed Garcia to focus on her personal and the Nobramex team production, and set a goal of $20 million for Garcia’s total personal production in 2011. (Id. ¶ 18.) Garcia’s total personal production in 2011 was $8,669,090. (Id. ¶ 27.) Garcia’s total production in 2012 was $3,799,215. (Defs.’ 56.1 H33.) According to Garcia, Gold had a narrow focus on individual production in determining discretionary incentive awards for the employees he managed. (Defs.’ 56.1 ¶ 117.) Garcia understood this and asked Gold, on several occasions, to help her reconfigure or reallocate the sales production revenue for the Nobramex desk so that the production totals more accurately reflected her contribution. (Id. ¶ 116.)

II. Procedural History

Plaintiff commenced this action by filing her Complaint on July 30, 2013. (Doc. 1.) Plaintiff filed her Amended Complaint on November 18. (Doc. 12.)

Defendants filed their motion for summary judgment on May 19, 2015, (Doc. 57), along with Defendants’ Local Civil Rule 56.1 Statement, (Doc. 58), a memorandum of law in support of the motion, (Doc. 59), the affirmation of Patrick W. Shea with exhibits, (Doc. 60), and declarations of Andrew Gold, Robert Koch, and Pamela Sinclair, (Docs. 61, 62, 63). On July 21, 2015, Garcia filed Plaintiff’s memorandum of law in opposition to Defendants’ motion for summary judgment, (Doc. 73), Plaintiffs Local Civil Rule 56.1 Statement, (Doc. 70), the declaration of Anne L. Clark with exhibits, (Doc. 72), and the declaration of Maria Garcia, (Doc. 71). On July 23, 2015, Defendants filed their reply memorandum of law in further support of the motion for summary judgment, (Doc. 78), the affirmation of Patrick W. Shea with exhibits, (Doc. 79), and the declaration of Robert Koch with exhibit, (Doc. 80), at which point the motion was fully submitted.

III. Legal Standard

Summary judgment is appropriate when “the parties’ submissions show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law.” Fay v. Oxford Health Plan, 287 F.3d 96, 103 (2d Cir. 2002); see Fed. R. Civ. P. 56(a). “[T]he dispute about a material fact is ‘genuine! ]’ ... if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A fact is “material” if it “might affect the outcome of the suit under the governing law,” and “[fjactual disputes that are irrelevant or unnecessary will not be counted.” Id.

On a motion for summary judgment, the moving party bears the initial burden of establishing that no genuine factual dispute exists, and, if satisfied, the burden shifts to the nonmoving party to “set forth specific facts showing that there is a genuine issue for trial,” id. at 256, 106 S.Ct. 2505, and to present such evidence that would allow, a jury to find in his favor, see Graham v. Long Island R.R., 230 F.3d 34, 38 (2d Cir. 2000); To defeat a summary judgment motion, the nonmoving party “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). “A party asserting that a fact cannot be or is genuinely disputed must support the assertion by ... citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials .,.. ” Fed. R. Civ. P. 56(c)(1). In the event that “a party fails .:. to properly address another party's assertion of fact as required by Rule 56(c), the court may,” among other things, “consider the fact undisputed for purposes of the motion” or “grant summary judgment if the motion and supporting materials—including the facts considered undisputed—show that the movant is entitled'to it.” Fed. R. Civ. P. 56(e)(2), (3).

Additionally, in considering a summary judgment motion, a court must “view the evidence in the light most favorable to the non-moving party and draw all reasonable inferences in its favor, and may grant summary judgment only when no reasonable trier of fact- could find in favor of thé nonmoving party.” Allen v. Coughlin, 64 F.3d 77, 79 (2d Cir. 1995) (internal citations and quotation marks omitted); see also Matsushita, 475 U.S. at 587, 106 S.Ct. 1348. “[I]f there is any evidence in the record that could reasonably support a jury’s verdict for the non-moving party,” summary judgment must be denied. Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002).

The Second Circuit “has repeatedly emphasized the need for caution about granting summary judgment to an employer in a discrimination case where ... the merits turn on a dispute as to the employer’s intent.” Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir. 2010) (internal quotation- marks omitted). This is “[bjecause direct evidence of [an employer’s] discriminatory intent is rare and such intent often must be inferred from circumstantial evidence.” Holtz v. Rockefeller & Co., 258 F.3d 62, 69 (2d Cir. 2001). “Even in the discrimination context, however, a plaintiff must provide more than concluso-xy allegations to resist a motion for summary judgment, and show more than ‘some metaphysical doubt as to' the material facts.’ ” Gorzynski, 596 F.3d at 101 (quoting Matsushita, 475 U.S. at 586, 106 S.Ct. 1348) (internal citation omitted). The ultimate inquiry is “whether the' evidence can reasonably support a verdict in plaintiffs favor.” James v. N.Y. Racing Ass’n, 233 F.3d 149, 157 (2d Cir. 2000).

IV. Discussion

A. Discrimination Claims Under Title VII, Section 1981, and NYSHRL

Employment discrimination claims under Title VII, Section 1981, and NYSHRL are analyzed using the familiar three-step burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Brown v. City of Syracuse, 673 F.3d 141, 150 (2d Cir. 2012). At the first step of the McDonnell Douglas analysis, a plaintiff must present'evidence supporting a prima facie case of discrimination. McDonnell Douglas Corp., 411 U.S. at 802, 93 S.Ct. 1817. To meet this burden, a plaintiff must show that: (i) she belongs to a protected class; (ii) she was qualified for the position at issue; (iii) she suffered an adverse employment action; arid (iv)'the action occurred under circumstances giving rise to an inference of discriminatory intent. See id.; Holcomb v. Iona Coll., 521 F.3d 130, 138 (2d Cir. 2008). The Second Circuit has emphasized that the “burden of establishing a prima facie case is de minimis.” Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 467 (2d Cir. 2001) (collecting cases).

If a plaintiff successfully presents a pri-ma facie case of discrimination, the burden shifts to the defendant to proffer: legitimate, nondiscriminatory reasons for the adverse employment action. Id. at 466, 468-69. The defendant’s burden at this stage is also “light.” Greenway v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). It “is one of production, not persuasion; it ‘can involve no credibility assessment.’” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000) (quoting St. Mary’s Honor Ctr. v. Hicks, 509 (U.S. 502, 509, 113 S.Ct. 2742, 125 L.Ed.2d 407 1993) (“Hicks”)).

At the third step of the McDonnell Douglas framework, the burden shifts back to the plaintiff to demonstrate, by a preponderance of the evidence, that the proffered reason is a pretext for discrimination. See United States v. City of N.Y., 717 F.3d 72, 102 (2d Cir. 2013); Holcomb, 521 F.3d at 141. However, a “plaintiff is not. required to show that the employer’s proffered reasons were false or played no role in the employment decision, but only that they were not the only reasons' and that the prohibited factor was at least one of the ‘motivating’ factors.” Holcomb, 521 F.3d at 138 (quoting Cronin v. Aetna Life Ins. Co., 46 F.3d 196, 203 (2d Cir. 1995)); see Henry v. Wyeth Pharm., Inc., 616 F.3d 134, 156 (2d Cir. 2010) (noting that “a plaintiff need only show that the defendant was in fact motivated at least in part by the prohibited discriminatory animus”). In other words, to defeat summary judgment, “the plaintiffs admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination.” Stern v. Trs. of Columbia Univ., 131 F.3d 305, 312 (2d Cir. 1997); see Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000), cert. denied, 540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003) (“[T]he question [on summary judgment'is] ... whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough to disbelieve the employer; the factfinder must also believe the plaintiffs explanation of intentional discrimination.” (internal quotation marks omitted)); Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir. 2000) (holding summary judgment in favor of defendant was appropriate where plaintiff failed to present evidence upon which a reasonable jury could conclude that age was a “determinative factor” in adverse employment action). “Though the plaintiffs ultimate burden- may be carried by the presentation of additional evidence showing that ‘the employer’s proffered explanation is unworthy of credence,’ it may often be carried by reliance on the evidence comprising the prima facie case, without more.” Cronin v. Aetna Life Inc. Co., 46 F.3d 196, 203 (2d Cir. 1995) (quoting Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981)); see Back v. Hastings on Hudson Union Free Sch. Dist., 365 F.3d 107, 124 (2d Cir. 2004) (noting that in support of her claim of sex discrimination “plaintiff may, depending on how strong it is, rely upon the same evidence that comprised her prima facie case, without more”).

1. Prima Facie Case

It is undisputed that Garcia is a Latina woman and was qualified for the positions she held at Barclays. (Defs.’ 56.1 ¶¶40, 43.) Therefore, Garcia satisfies the first and second elements of her prima facie claim. With respect to the third element, it is undisputed that Garcia experienced the following adverse employment acts: (i) failure to promote to managing director; (ii) low discretionary incentive awards; (iii) reassignment of her U.S. accounts; and (iv) selection for redundancy in the 2013 RIF. The parties dispute, however, whether Garcia has demonstrated her prima facie claim with respect to the fourth element—that these adverse employment acts occurred under circumstances giving rise to an inference of discrimination. Garcia argues that numerous comments allegedly made by Gold during her tenure at Barclays give rise to an inference of discrimination. (Pl.’s Opp. 9-12.) Defendants respond that the alleged statements consist of classic “stray comments” and thus do not give rise to an inference of discrimination based on race or sex. (Defs.’ Reply 2-3.)

In analyzing whether a statement is probative of discriminatory intent or may instead be considered a “stray comment,” “the more remote and oblique the remarks are in relation to the employer’s adverse action, the less they prove that the action was motivated by discrimination.” Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007), abrogated on other grounds by Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). “But there is no bright-line rule for when remarks become ‘too attenuated’ to be significant to a determination of discriminatory intent.” Tolbert v. Smith, 790 F.3d 427, 437 (2d Cir. 2015) (vacating district court finding that discriminatory statements were “stray remarks,” holding statements were sufficient to demonstrate prima facie case of discrimination, and remanding for analysis at the second and third stages of McDonnell Douglas burden-shifting framework). Accordingly, in determining whether a statement evidences discriminatory intent or whether it is a “stray remark,” a court should consider the following factors:

(1) who made the remark, ie., a decision-maker, a supervisor, or a low-level co-worker; (2) when the remark was made in relation to the employment decision at issue; (3) the content of the remark, ie., whether a reasonable juror could view the remark as discriminatory; and (4) the context in which the remark was made, ie., whether it was related to the decision-making process.

Pronin v. Raffi Custom Photo Lab, Inc., 383 F.Supp.2d 628, 637 (S.D.N.Y. 2005) (citing Minton v. Lenox Hill Hosp., 160 F.Supp.2d 687, 694 (S.D.N.Y. 2001)); see Woodard v. TWC Media Solutions, Inc., No. 09-cv-3000 (BSJ)(AJP), 2011 WL 70386, at *7 (S.D.N.Y. Jan. 4, 2011) (noting that “[r]emarks are especially likely to be considered ‘stray’ when made by a decision maker unrelated to the decision-making process temporally remote from the date of decision”).

Garcia argues that Gold made numerous statements that, taken together, give rise to an inference of discrimination based on race and sex. Specifically, Garcia alleges that Gold:

(1) told Garcia around the time she joined Barclays in 2008 that she would be a good “fit” for Nobra-mex, because she is Latina, (Defs.’ 56.1 ¶ 60);

(2) referred, in March and May 2009, to Nobramex as a “no man’s land” and a “cucaracha” region where one could “rape and pillage” local investors, (id. ¶¶ 64, 74, 81; Clark Deck, Ex. 82 ¶ 18);

(3) referred to Garcia, on numerous occasions, as a “high end Dominican” and “Miss Dominican Republic,” (Defs.’ 56.1 ¶ 211; Garcia Dep. 338:24-340:19);

(4) referred to Garcia, in September 2010, as “Mama Maria,” told her he did not want a “pity party,” and once asked her to “mother” a colleague’s health issue, (Defs.’ 56.1 ¶ 115); •

(5) told Koch, on an unspecified date, that he was “going to drop the Cosby kids” as he left for the restroom, (id. ¶ 105);

(6) said, on an unspecified date, “this is what happens when you spend time in Asia,” while playing a YouTube video of a Barclays employee “going postal,” (Garcia Dep. 346:3-17);

(7) said, in January 2011 and on other occasions, Arabs could not be trusted, (Defs.’56.1,¶ 104);

(8) said,- in January 2011, that it was time to put a female colleague “out to pasture” following that employee’s second maternity leave, (id. ¶ 166);

(9) wrote in an email sent in June 2011 that he was “off to beat my wife with the belt,” (id. -¶ 193); and

(10)said while boarding a plane in 2012: “uh oh, this plane has Dominicans on it,” (id. ¶ 210).

These statements allegedly made by Gold at various times between 2008 and 2012 are unprofessional and arguably offensive. However, the fact that the statements may be offensive is beside the point; the relevant inquiry is whether or not the statements are probative of a discriminatory intent. See Tomassi, 478 F.3d at 116 (“The relevance of discrimination-related remarks does not depend on their offensiveness, but rather on their tendency to show that the decision-maker was motivated by assumptions or attitudes relating to the protected class.”). The individual who made each statement, i.e., Gold, is also the decision-maker with respect to the adverse employment acts. However, the other three factors suggest the statements are “stray comments” because, to varying degrees: their content is benign when considered in the context they were made; they are temporally remote from an adverse employment action; and/or they are unrelated to an employment decision or the decision making process. See id.; O’Connor v. Viacom Inc./Viacom Int’l Inc., No. 93 CIV. 2399 (LMM), 1996 WL 194299, at *5 (S.D.N.Y. Apr. 23), aff'd, 104 F.3d 356 (2d Cir. 1996) (holding plaintiff failed to demonstrate pretext where employer allegedly referred to Irish employees in derogatory terms and emphasizing that “[m]any courts have held that stray remarks in the workplace, by themselves, and without a demonstrated nexus to the complained of personnel actions, will not defeat the employer’s motion for summary judgment”).

However, in considering all of the statements together in the light most favorable to Garcia, I decline to rule as a matter of law that the statements are mere “stray remarks.” See Tolbert, 790 F.3d at 437 (reversing grant of summary judgment and holding that “none of the remarks was so attenuated that it should be ignored”); see also Tomassi, 478 F.3d at 116 (same). I find that these statements could plausibly support ⅛ claim that Plaintiff was terminated under circumstances giving rise to an inference of discrimination. See Carlton v. Mystic Transp., Inc., 202 F.3d 129, 136 (2d Cir. 2000) (noting that although stray comments alone are usually not sufficient proof to show discrimination, stray comments may “bear a more ominous significance” when considered within the totality of all the evidence and can furnish support for plaintiffs prima facie case). Therefore, I find that Garcia has just barely satisfied the de minimis showing necessary to establish a prima facie case of discrimination based on race and/or sex. See Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 381 (2d Cir. 2001) (reiterating that prior Second' Circuit precedents “characterized the evidence necessary to satisfy this initial [prima facie] burden as ‘minimal’ and ‘de minimis’ ”),

2. Barclays’ Legitimate Nondiscriminatory Explanations

I turn next to the second stage of the McDonnel Douglas burden-shifting analysis, where Barclays’ burden, is also .“light.” Greenway, 143 F.3d at 52. Barclays need only adduce evidence supporting a legitimate, non-discriminatory explanation for each of the adverse employment acts. Reeves, 530 U.S. at 142, 120 S.Ct. 2097 (noting that the burden “is one, of production, not persuasion; it ‘can involve no credibility assessment’ ” (quoting Hicks, 509 U.S. at 509, 113 S.Ct. 2742)). Barclays has more than satisfied its second stage burden; it offers sufficient admissible evidence from which a reasonable jury could conclude that Gold took each of the adverse employment actions for one or more legitimate, non-discriminatory reasons.

a. Failure to Promote to , Managing Director

Garcia claims that Barclays’ failure to promote her to managing director in 2010 and 2012 was motivated, at least in part, -by her race .and/or sex. (PL’s Opp, 15-17.) In response, Barclays demonstrates that the ultimate decision not to promote Garcia to managing director was based on legitimate, non-discriminatory reasons.

With respect to the failure to promote in 2010, Garcia’s candidacy advanced to the final stages; however, the GPC decided not to promote Garcia because it concluded “she did hot have enough production exclusively under her name” and she had “not yet had time to develop a revenue track record of performance against budget and she ha[d] not been able to prove her people management capabilities.” (Shea Aff. Ex. 26; see Defs.’ 56.1 ¶¶ 111, 119.) In 2012, Gold placed Garcia on his initial long list of candidates but ultimately did not advance her candidacy “because she had not improved her production or performance, and he thought it was unlikely the committee would promote her.” (Defs.’ 56.1 ¶ 31.) Based on this evidence, I find that Barclays has jnore than satisfied its second stage burden .with respect to Garcia’S’ non-promotion to managing director.

b.Discretionary Incentive Awards

Garcia argues that between 2009 and 2012 she received lower discretionary incentive awards than certain men, most of whom were white, on account of her race and/or sex. (Pl.’s Opp. 17-18.) In response, Barclays explains that the disparities in Garcia’s discretionary incentive awards are attributable to her consistently and substantially lower total production figures. Specifically, Barclays references the employee handbook which states that discretionary incentive awards are based on “individual and team performance, meeting or exceeding established goals,-market competitiveness, and the overall success of each business, including the firm’s overall performance.” (Defs.’ 56.1 ¶ 37.) Additionally) Barclays demonstrates that an employee’s total production is a key component in assessing individual performance, and individual performance, in turn, is a major factor in determining an employee’s discretionary incentive award. (Defs.’ Reply 6; Defs.’ Mem. 17; Gold Dep. 161:3-162:23.) In light of Barclays’ substantial evidence demonstrating that individual production was a key factor in determining discretionary incentive awards, I find that Barclays has more than satisfied its second stage burden with respect to Garcia’s discretionary incentive awards.

c.Reassignment of Garcia’s U.S. Accounts

Garcia argues that Gold’s decision to reassign her U.S. -accounts was motivated by race. (PL’s Opp. 15.) When Gold reassigned Garcia’s U.S. accounts in January 2010, he explained that the decision was premised on a Barclays “preference for keeping U.S. revenues and Nobramex revenues segregated from one another.” (Defs.’ 56.1 ¶ 99.) Because Garcia had been covering U.S. .accounts, it was .unclear how to, apportion the total revenues attributable to the U.S. EM Sales and Nobramex EM Sales teams. In addition, as Barclays points out, four of the accounts were, reassigned to Ana Sarmiento, a Latina, (Pl.’s Opp. 15; see Koch Decl. ¶3), and Gold returned certain of Garcia’s U.S. accounts in 2011, (Garcia Decl. ¶ 32). Based on this evidence, I find that Barclays has more than satisfied its second stage burden with respect to Gold’s decision to reassign Garcia’s U.S. accounts. .

d.Termination, of Employment as Part of 2013 RIF

-Barclays has adduced sufficient evidence to demonstrate that Gold’s decision to include Garcia in the 2013 RIF was based on legitimate business reasons and needs. When Barclays underwent the 2013 RIF, Gold selected Garcia for redundancy because her position -was not necessary going forward. (Defs.’ 56.1 ¶ 32.) Specifically, Gold decided to eliminate Garcia’s position—head of Nobramex—and combine the Nobramex . and Mexico teams into a single team with Huerta serving as its head. (Gold Decl. ¶ 5 (“I felt that [Garcia’s] role could be eliminated and the Nobramex team ,could report- into the head of the Mexico sales team, David Huerta.”).) Dreisiger recalls that in discussing. with Gold whether to include Garcia in the 2013 RIF, the “conversation was about whether her business, the NoBraMex business, [could] be folded under the head of the Mexico business, as [Huerta] had a stronger track record and there could be better synergies and then [Gold] didn’t need as many senior managers.” (Dreisiger Dep. 175:8-19.) Based on this evidence, I find that Barclays has more than satisfied its second stage burden with respect to Gold’s decision to select Garcia’s position for redundancy and include Garcia in the 2013 RIF.

3. Pretext

At this stage of the McDonnell Douglass burden shifting framework, Garcia must prove, by the preponderance of evidence, that the adverse employment actions were motivated at leást in part by her race or sex. See Stern, 131 F.3d at 312; Reeves, 530 U.S. at 143, 120 S.Ct. 2097 (“Although intermediate evidentiary burdens shift back and forth under [the McDonnell Douglas ] framework, the ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff.” (internal quotation marks omitted)). In determining whether Garcia has carried her burden, I consider the evidence contained in the record as a whole, and resolve all conflicts in the evidence and draw all reasonable inferences in Garcia’s favor. See Weinstock, 224 F.3d at 42. As set forth below, I conclude that no reasonable jury could find that Garcia’s race or sex was a motivating factor in any of the adverse employment acts. In addition, although she is not required to disprove Barclays’ explanations to defeat summary judgment, Garcia fails to demonstrate that any of Barclays’ legitimate, non-discriminatory explanations for the adverse acts are pretexts,

a. Non-Promotion to Managing Director

Garcia has failed to rebut Barclays’ legitimate, non-discriminatory reasons for not promoting her to managing director. She argues that her candidacy in 2010 was destined to fail because Gold did not “put the level of effort into Garcia’s nomination papers that he did for McNulty,” (Pis’ Opp. 16), and because the committee deciding who to promote was composed of almost entirely white men, (Pl.s’ Opp. 17). Plaintiffs conclusory assertions fail to establish that Barclays’ legitimate reasons are pretexts.

The undisputed facts belie Plaintiffs assertion that Gold was not supportive of her generally, and specifically of her candidacy for managing director. Garcia points to emails between Koch, Gold, and other Bar-clays executives regarding McNulty’s nomination and argues that Gold did not exert an equivalent level of effort with respect to her nomination. (Defs.’ 56.1 ¶ 125.) Consistent with Garcia’s claim that Koch nominated McNulty and Gold nominated only her for promotion to managing director in 2010, (Id. ¶ 13), the emails Garcia points to demonstrate that Gold took a relatively less active role than Koch in crafting McNulty’s nomination package. (See Clark Deck Exs. 53, 54, 57.) However, the email chain fails to establish that Gold failed to sufficiently advocate on Garcia’s behalf in light of the other evidence contained in the record. In 2009, Gold nominated Garcia for the Barclays Woman of the Year award and wrote that Garcia was “an outstanding leader and she continues to maintain an unwavering focus on her clients and her colleagues.” (Defs.’ 56.1 ¶ 6.) In addition, it is undisputed that Gold nominated or considered Garcia for promotion to managing director in 2010, 2011, and 2012. (Id. ¶¶ 13, 26, 108.) Gold wrote that he nominated Garcia in 2010 because “he thought she was off to a great start in running Nobra-mex, she had made a lot of progress, and she- deserved the nomination.” (Id. ¶ 108.) Moreover, ■ Garcia acknowledges that she was the only candidate Gold nominated for promotion in 2010. (See id. ¶ 13.) Construing the inconsistencies and facts in Garcia’s favor, I find that Garcia’s assertion that Gold essentially did not work hard enough on her nomination is unpersuasive.

In addition, there is also no basis to conclude that the committee’s stated reason not to promote Garcia in 2010 was a pretext for discrimination. In support, Garcia merely states that the committee was composed of almost entirely white men; however, this fact alone does not establish pretext. See Holdmeyer v. Veneman, 321 F.Supp.2d 374, 382 (D. Conn. 2004), aff'd sub nom., Holdmeyer v. Dep’t of Agric., 146 Fed.Appx. 535 (2d Cir. 2005) (holding plaintiff failed to raise inference of discrimination where only evidence plaintiff adduced was fact that decisionmaker was different race). Moreover, the committee promoted at least one woman to managing director, (Pl.’s Opp. 17 n.21), which further undermines Plaintiffs assertion that the decision not to promote her was discriminatory.

With respect to the failure to promote in 2012, Garcia asserts that Gold’s stated explanation for not advancing her candidacy is a pretext for discrimination because her most recent performance rating was “Exceeds Some, Meets All Expectations” and she improved the total Nobramex team business relative to the prior year. (PL’s Opp. 17.) These facts, while undisputed, simply fail to address Gold’s stated reason for not nominating her: because she had not improved her individual production or performance, and he did not think the committee would promote her. (Defs.’ 56.1 ¶31.) Accordingly, Gold’s legitimate business reason is unrebutted.

With respect to her burden at stage three, Garcia asserts that the same evidence supporting her' prima facie claim, i.e., Gold’s statements, (see supra Section IV.A.1), also proves that the failure to promote her in 2010 or 2012 was motivated by her race and/or sex. However, she does not even attempt to argue a nexus between any of Gold’s statements and the failure to promote her in 2010 and 2012. Moreover, at her deposition, Garcia testified that she did not believe the failure to promote her in 2010 to be discriminatory, (Defs.’ 56.1 ¶ 15; Garcia Dep. 211:20-23); however, she later challenged the decision, (PL’s Opp. 15). Based upon my own review of Gold’s statements, I note that Gold’s comment that he did not want Garcia to have a “pity party” upon learning she was not selected for promotion is temporally related, (Defs.’ 56.1 ¶ 115); '.however, the statement occurred after Plaintiff was not promoted in 2010, and did not inform the committee’s decision making process.

Accordingly, in the face of the unrebut-ted, legitimate business explanations, and considering the evidence contained in the record and drawing all inferences.in Garcia’s favor, I find that no reasonable jury could conclude that Garcia’s race or sex played a motivating factor in Garcia’s non-promotion to managing director in 2010 or 2012.

b. Discretionary Incentive Awards

Garcia fails to rebut Barclays’ explanation that the pay disparities are attributable to legitimate, gender-neutrál business considerations, namely that individual performance is a key factor in determining discretionary incentive awards. Garcia does not identify, with specificity, which male employees of Barclays she purports to be her comparators. However, Garcia does argue that she “properly compares herself to men, most of them white, who were either heads of teams or salespeople, with comparable evaluations of performance,” (Pl.’s Opp. 17-18 (citing Defs.’. 56.1 ¶¶ 230-53)), and the cited paragraphs of Plaintiffs Local Civil Ruie 56.1 Statement that reference the following male employees of Barclays: Huerta, Koch, Rizzo, Fernandes, Feola, Weston, and McNulty. Thus, Garcia appears to claim that these seven men are her comparators, even though she does not specifically identify how she is similarly situated to these men. (See also Defs.’ 56.1 II228 (“As discussed infra, ¶¶ 234-53, comparable men were paid, substantially more.”)).

I note that there appear to be numerous, significant differences between Garcia and certain of these comparators, (see' infra Section B.2); however, assuming without deciding that all seven comparators are appropriate, Garcia fails to demonstrate that Barclays’ stated explanation is a pretext for discrimination. Barclays has adduced substantial and undisputed evidence demonstrating that the factors it relies on in determining total compensation consist of: “individual and team performance, meeting or exceeding established goals, market competitiveness, and the overall success of each business, including the firm’s overall performance.” (Defs.’ 56;1 ¶37.) Garcia agrees that Barclays takes these factors into consideration in determining total compensation but argues that Barclays also considers additional factors such as: an employee’s performance rating; success in training junior employees; and demonstrated ability to cultivate relationships with clients. (Id.) However, these purportedly additional factors are better understood as criteria for evaluating whether an employee has demonstrated one or more of Barclays’ stated factors, namely individual performance and/or meeting or exceeding established goals. In addition, Garcia claims that Barclays considers additional “ad hoc factors” in determining compensation, such as: “perceived need to reward employee loyalty, the intuition that Barclays could ‘afford’- to pay an employee less, and the perceived need to pay more so that a high-value or aggrieved employee will not quit.” (Id.) However, these “ad hoc factors” are all considerations that fall within the stated factor of market competitiveness. Moreover, Garcia does’ not claim and the record does' not support that any of the additional factors or “ad hoc factors” are sex based criteria.

Personal performance, in. other words “how good a year the person in question had”—as quantitatively measured by total production—is an important factor Bar-clays considers in determining discretionary compensation for its employees in EM Sales. (Gold Dep. 161:3-162:23.) Garcia understood that total production was a significant factor in determining discretionary compensation.- (Garcia Decl. ¶¶ 12, 14, 15; Garcia Dep. 299:12-21.)

In every year at issue, with the exception of one man in a single year, Garcia’s total production was. significantly lower than the total production of each man she identifies as a comparator. (See Clark Decl. Ex. 80; Shea Aff. Exs. 12, 13, 34-36.) Barclays calculated employees’ annual payout, percentage—the ratio of total compensation to total production—as one measure with which to compare employees’ performance in a given year. (See Clark Decl. Ex. 80; Garcia Dep. 299:12-21 (Garcia testifying to her belief that she was compensated at the “lowest percentage” of all the producing sales managers in Latin America).) In fact, Garcia’s payout percentage was frequently two or three times higher than other comparators’ payout percentage. (See Clark Deck Ex. 80.) Simply put, the undisputed facts demonstrate that Barclays used legitimate gender-neutral factors in determining compensation, and one of the most important of these factors in determining discretionary compensation for the EM Sales team was total production. Garcia’s pay disparity is more than explained by the fact that her total production figures were-routinely and significantly lower than the men whom - she claims are her comparators.

Considering all the evidence contained in the record and Barclays’ unrebutted gender-neutral explanation, Garcia’s prima facie evidence of discriminatory intent, (see supra Section IV.A.1), fails to satisfy her stage three burden and prove that her race or sex played a motivating factor in her discretionary incentive awards. She does not argue any nexus between Gold’s statements and her awards. Moreover, I find that none of Gold’s statements are related to the decision making process related to personnel decisions concerning Garcia, and any temporal proximity between a statement and when a particular discretionary incentive award was paid or decided appears to be coincidence,

c. Stripping of U.S. Accounts

Garcia argues that the reassignment of her U.S, accounts was motivated,., at least in part, by race; however, .Garcia fails to address Barclays’ legitimate-business reasons for the reassignment—that Gold wanted Garcia to focus on,the Nobramex business and the preference, for keeping U.S., revenues and Nobramex revenues segregated from one another. (Defs.’ 56.1 ¶ 99.) In addition, four of the accounts that had been taken away from Garcia were reassigned to Ana Sarmiento, a Latina. (Pk’s Opp. 15; see Koch Deck ¶3.) This fact further undercuts Garcia’s claim that the reassignment of her U.S. accounts was motivated by race. See Blasi v. N.Y. City Bd. of Educ., Nos. 00-CV-5320 (RRM)(MDG), 03-CV-3836 (RRM)(MDG), 2012 WL 3307227, at *15 (E.D.N.Y. Mar. 12, 2012), aff'd, 544 Fed.Appx. 10 (2d Cir. 2013) (finding no inference of discriminatory intent where three of the four new hires following plaintiffs termination were members of same protected class).

Garcia relies on Gold’s statements, (see supra Section IV.A.1), to satisfy her stage three burden and prove that her race or séx played a motivating factor in Gold’s decision; however, she does not draw any nexus between any -statement and the reassignment of her U.S. accounts in 2010. Moreover, I find that none of the statements are related to the reassignment temporally or otherwise. Accordingly, in light of the unrebutted, legitimate business explanation,- the fact that certain of the U.S. accounts were reassigned to a Latina woman, and the fact'that Garcia does not put forward any additional evidence to bolster her claim, I find that no reasonable jury could conclude that Garcia’s race or sex played a motivating factor in Gold’s decision to reassign Garcia’s U.S. accounts,

d. Selection for Reduction in Force

Garcia fails to rebut Barclays’ legitimate business explanation for Gold’s decision to eliminate her position and select her for the 2013 RIF. It is undisputed that Garcia’s position was eliminated and has not been re-filled. (Defs.’ 56.1 ¶ 34.) Nevertheless, Garcia argues that Barclays’ stated reason is a pretext for discrimination. In support, Garcia notes that Gold selected a total of four Latina women and one non-Latina woman for inclusion in the various RIFs Barclays underwent in the six years subsequent to its acquisition of Lehman. (Pl.’s Opp. 18-19.) “Without contextual information” such as how many people in total reported to Gold at any given time and what proportion were women or Lati-nas, I find it unremarkable that five women were let go as part of reductions in force from Barclays after it had purchased portions of Lehman’s business after its collapse during the six years spanning the world financial crisis. See, e.g., Vuona v. Merrill Lynch & Co., 919 F.Supp.2d 359, 374 (S.D.N.Y. 2013) (opining that, in gender discrimination case involving RIF following the global financial crisis, statistics are relevant to support a discrimination claim and finding that the statistics offered by plaintiffs were insufficient to prove pretext); LaMarch v. Tishman Speyer Props., L.P., No. 03 CV 5246 (CBA), 2006 WL 2265086, at *6 (E.D.N.Y. Aug. 8, 2006) (finding that “no rational jury could draw any inference” without “minimal data” such as number of employees within protected class and termination rate of those outside protected class). Further, the fact that Sinclair—a Director in the human resources department who supported EM Sales where Gold and Garcia worked— urged Gold to include Garcia in the 20.11 RIF, (Defs.’ 56.1 ¶ 23; Sinclair Deck ¶ 1), because in her opinion Garcia was not performing well, did not demonstrate potential for long-term success, and her belief that Garcia’s role was not needed, (Sinclair Decl. ¶ 3), lends additional support for Gold’s decision to include Garcia in the 2013 RIF.

In addition, Barclays’ argument that Garcia’s race and sex played no role in Gold’s decision is bolstered by the undisputed fact that Gold made the decision to hire Garcia. See Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997) (noting that same actor inference—where “the person who made the decision to fire was the same person who made the decision to hire”—strongly suggests “invidious discrimination was unlikely”); Schnabel, 232 F.3d at 91 (holding same actor inference was “highly relevant” where manager who hired plaintiff fired him three years later); Anderson v. Hertz Corp., 507 F.Supp.2d 320, (S.D.N.Y. 2007), aff'd 303 Fed.Appx. 946, 948 (2d Cir. 2008). Although Gold’s decision to hire Garcia in 2008 was made about five years before his decision to include her in the 2013 RIF, Gold promoted Garcia to head of Nobramex in 2009, nominated her for Woman of the Year in 2010, nominated her for promotion to managing director in 2010 and 2011, did not include her in the 2011 RIF against the advice of a human resources Director, and included her on his long list of candidates in 2012. These acts demonstrate Gold’s repeated endorsement of Garcia as an employee, which is akin to a decision to hire, see Figueroa v. N.Y.C. Health & Hosps. Corp., 500 F.Supp.2d 224, 236 (S.D.N.Y. 2007), and served as validation of his initial decision to hire Garcia in 2008. Accordingly, in light of the length of time between Gold’s decision to hire Garcia and decision to include her in the 2013 RIF, coupled with his intervening acts of validation of Garcia’s employment, I find that the same’ actor inference is warranted here. See, e.g., Hyek v. Field Support Servs., Inc., 702 F.Supp.2d 84, 101 (E.D.N.Y. 2010), aff'd, 461 Fed.Appx. 59 (2d Cir. 2012) (finding that because same individual was responsi-. ble for both the creation and promotion of plaintiff to multiple managerial positions and the decision to terminate plaintiff, the same actor inference applied and provided an inference that discrimination was not a motivating factor in the decision to terminate plaintiff); Byrne v. CNA Ins. Cos., No. 98-CV-885 HGMGJD, 2001 WL 35934693, at *8 (N.D.N.Y. July 6, 2001) (relying on same actor doctrine and finding that plaintiff failed to establish that defendant’s reason for discharge was a pretext for discrimination where superior who hired plaintiff and discharged him three years later had promoted him twice in the intervening time).

Weighed against Barclays’ legitimate and unrebutted explanation for including Garcia in the 2013 RIF and the same actor inference, Garcia.fails to satisfy her stage three burden and prove that Gold’s deck sion to include her in the 2013 RIF was motivated, even in part, by her race or sex. As was the case with the other adverse employment acts, Garcia does not assert any nexus that links a statement by Gold to his decision to include her in the 2013 RIF. Upon my own review of Gold’s statements, I find that none of them are related to the decision making process; however, one comment in 2012—“uh oh, this plane has Dominicans on it,” (Defs.’ 56.1 ¶ 210)— could be viewed as temporally close in time to the 2013 RIF. Considering all the evi-' denee contained in the record in the light most favorable to Plaintiff, the unrebutted legitimate business explanation, and the same actor inference, I find that no reasonable jury could conclude that Gold’s decision to include Garcia in the 2013 RIF was motivated, even in part, by her face or sex.

B. Unequal Pay Claims Under EPA and ÑYLL

1. Applicable Law

The Equal Pay Act “prohibits employers from discriminating among employees on the basis of sex by paying higher wages to employees of the opposite sex for equal work.” Belfi v. Prendergast, 191 F.3d 129, 135 (2d Cir. 1999) (internal quotation marks omitted). To establish a claim, a plaintiff must make an initial showing that “(1) the' employer pays different wages to employees of the opposite sex; (2) the employees perform equal work on jobs requiring equal skill, effort, and responsibility; and (3) the jobs are performed under similar working conditions.” E.E.O.C. v. Port Auth. of N.Y. & N.J., 768 F.3d 247, 255-56 (2d Cir. 2014) (quoting Belfi, 191 F.3d at 135), “[P]roof of the employer’s discriminatory intent is not necessary for the plaintiff to prevail on her claim.” Belfi, 191 F.3d at 136 (citing Pollis v. New Sch. for Social Research, 132 F.3d 115, 118 (2d Cir. 1997)); see Littlejohn v. City of N.Y., 795 F.3d 297, 309 n.7 (2d Cir. 2015) (noting that under EPA, “liability turns on whether lesser pay is given for equivalent work-discriminatory motivation is not an element of the claim”).

If a plaintiff can make this pri-ma facie showing, the burden of persuasion shifts to the employer to demonstrate that wage disparity is justified by one of the four affirmative defenses provided under the EPA: “(i) a seniority system; (ii) a merit system; (iii) a system which measures earnings by quantity or quality of production; or (iv) a differential based on any other factor other than sex.” 29 U.S.C. § 206(d)(1); see Belfi, 191 F.3d at 136. “[T]o successfully establish the ‘factor other than sex’ defense, an employer must also demonstrate that it had a legitimate business reason for implementing the gender-neutral factor that brought about the wage differential.” Belfi, 191 F.3d at 136. “Once the employer proves that the wage disparity is justified by one of the EPA’s four affirmative defenses, ‘the plaintiff may counter the employer’s affirmative defense by producing evidence that the reasons the defendant seeks to advance are actually a pretext for sex discrimination.’ Ryduchowski v. Port Auth. of N.Y. & N.J., 203 F.3d 135, 142 (2d Cir. 2000) (quoting Belfi, 191 F.3d at 136). “The appropriate inquiry to determine if the factor put forward is a pretext, is whether the employer has used the factor reasonably in light of the employer’s stated purpose as well as its other practices.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 526-27 & n.1 (2d Cir. 1992) (internal quotation marks omitted).

2. Application

Barclays argues that it is entitled to summary judgment ón Garcia’s EPA and NYLL claims because Garcia fails to state a prima facie claim and, even if she had, Barclays is nevertheless entitled to summary judgment because an affirmative defense applies here; specifically that Bar-clays relied on factors other than' sex in determining Garcia’s compensation. With respect to the first element of the prima facie claim, Garcia appears to argue that Huerta, Koch, Rizzo, Fernandes, Feola, Weston, and McNulty are appropriate comparators. (See supra Section IV.A.3.ii.)

With respect to the second element of the prima facie claim, Plaintiff has failed to adduce evidence to demonstrate that each of . the seven alleged comparators held a position substantially equal to hers. See Lavin-McEleney v. Marist Coll., 239 F.3d 476, 480 (2d Cir. 2001) (noting that “ ‘[a] plaintiff need not demonstrate that her job is identical to a higher paid position, but only must show that the two positions are ‘substantially equal” in skill, effort, and responsibility” (quoting Tomka v. Seiler Corp., 66 F.3d 1295, 1310 (2d Cir. 1995))). Garcia argues that the determination whether two positions are substantially equivalent is a question for the jury, (Pl.’s Opp. 21); however, that is not the law and summary judgment is appropriate where “two positions [are] so different .. / that no reasonable juror could conclude that they are ‘substantially equal,”’ Drury v. Waterfront Media, Inc., No. 05 Civ. 10646(JSR), 2007 WL 737486, at *3 (S.D.N.Y. Mar, 8, 2007); see Guglielmo v. Marchon Eyewear, Inc., No. 02 CV 5434(SLT), 2006 WL 398617, at *8 (E.D.N.Y. Feb. 16, 2006) (analyzing cases throughout Second Circuit and finding that “it is not the law in this Circuit that the second elément [of an EPA claim] must be determined by a trier of fact”).

Garda has failed to pro