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Nora Gilhooly v. Ubs Securities

February 14, 2011


The opinion of the court was delivered by: Judge Virginia M. Kendall


Plaintiff Nora K. Gilhooly ("Gilhooly") filed an employment discrimination suit pursuant to Title VII against UBS Securities, LLC ("UBS") alleging that UBS discriminated against her when she was discharged from her job as an Associate Director at UBS. UBS moved to dismiss Gilhooly's Complaint under Rule 12(b)(6) for failure to state a claim upon which relief can be granted. For the reasons stated below, the Court grants UBS's Motion to Dismiss without prejudice.


The following facts are taken from Gilhooly's Complaint and are assumed to be true for purposes of this Motion to Dismiss. See, e.g., Murphy v. Walker, 51 F.3d 714, 717 (7th Cir. 1995). In October 2006, UBS hired Gilhooly as an Associate Director in the Consumer Products group at its New York office. (Compl. ¶ 8.) Beginning in the summer of 2008, Gilhooly's supervisors allegedly examined her work with greater scrutiny because of her gender. (Compl. ¶ 11.) Gilhooly also claims that UBS employees discriminated against her by blaming her for mistakes that did not exist or were made by others. (Compl. ¶ 11.) In April 2008, UBS fired a disproportionate number of female employees from its New York office. (Compl. ¶ 10.)

In November 2008, UBS told Gilhooly that she would be transferred to UBS's Chicago office, which she did in January of 2009. (Compl. ¶¶ 12, 13.) UBS assigned her to do non-consumer work in spite of her lack of prior experience or formal training in that area and expected her to perform proficiently. (Compl. ¶ 14.) Although consumer work was available, UBS assigned it to male employees. (Compl. ¶ 14.) As a result of being assigned work for which she had no experience or training, UBS subjected her to unjustified criticism and harassment. (Compl. ¶ 15.) Due to the constant harassment and criticism, she resigned her position in September 2009. (Compl. ¶ 16.)


To state a claim upon which relief can be granted, a complaint must contain a "short and plain statement of the claim showing that the pleader is entitled to relief." Fed. R. Civ. P. 8(a)(2). To survive a motion to dismiss, a complaint must be "plausible on its face." Ashcroft v. Iqbal, 129 S. Ct. 1937, 1949 (2009) (quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570 (2007)); see also Swanson v. Citibank, N.A., 614 F.3d 400, 404 (7th Cir. 2010). A claim is facially plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged." Iqbal, 129 S. Ct. at 1949. Determining whether a complaint states a plausible claim for relief will require "the reviewing court to draw on its judicial experience and common sense." Id. at 1950. "'[A]bstract recitations of the elements of a cause of action or conclusory legal statements' do nothing to distinguish the particular case that is before the court from every other hypothetically possible case in that field of law." Swanson, 614 F.3d at 405 ((quoting Brooks v. Ross, 578 F.3d 574, 581 (7th Cir. 2009)).


Gilhooly alleges that UBS discriminated against her on the basis of her sex, in violation of Title VII of the Civil Rights Act of 1964. Under Title VII, it is unlawful for an employer to "discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). In evaluating Gilhooly's allegations, the Court considers whether UBS treated Gilhooly differently based on her sex, and whether the discriminatory treatment resulted in a materially adverse employment action, such as a change in the terms, conditions, or privileges of employment. Haugerud v. Amery Sch. Dist., 259 F.3d 678, 691 (7th Cir. 2001).

I. Purported Difference in Treatment Not Prompted by Gilhooly's Sex

A Title VII claim can be advanced under the direct or indirect approach. See Lewis v. City of Chicago, 496 F.3d 645, 650 (7th Cir. 2007). Under the indirect approach, also known as the McDonnell Douglas test, Gilhooly must satisfy four elements to establish a prima facie sex discrimination claim: "(1) she is a member of a protected class; (2) she performed her job satisfactorily; (3) she suffered an adverse employment action; and (4) defendants treated similarly situated employees outside her class more favorably." O'Neal v. City of Chicago, 392 F.3d 909, 911 (7th Cir. 2004). Here, Gilhooly acknowledges that her Complaint does not plead a prima facie case under the indirect method because she has failed to plead that UBS treated similarly situated male employees more favorably. (Pl.'s Resp. Def.'s Mot. Dismiss 3--4.) While she alleges that male UBS employees were assigned available consumer work and she was not, she failed to plead specific facts alleging that the male UBS employees were "substantial[ly] similar" in attributes such as experience and education. See Radue v. Kimberly-Clark Corp., 219 F.3d 612, 617--18 (7th Cir. 2000).

Instead, Gilhooly proceeded under the direct method of pleading discriminatory motivation. Under the direct method, a plaintiff must plead facts alleging that the decision maker admitted that his actions were "based upon the prohibited animus," or must show discrimination through a "longer chain of inferences." Lewis, 496 F.3d at 651 (internal quotation marks omitted).Here, Gilhooly confines her Complaint to pleading circumstantial allegations of sex discrimination, and fails to allege any direct evidence of discriminatory intent of UBS employees. See Troupe v. May Dep't Stores Co., 20 F.3d 734, 736 (7th Cir. 1994).

There are three types of circumstantial allegations of intentional discrimination. The first consists of "evidence that the plaintiff was qualified for the job in question but passed over in favor of (or replaced by) a person not having the forbidden characteristic and that the employer's stated reason for the difference in treatment is . . . a mere pretext for discrimination." Id. The second type consists of allegations "that employees similarly situated to the plaintiff other than in the characteristic . . . on which an employer is forbidden to base a difference in treatment received systematically better treatment." Id. The third type consists of "bits and pieces from which an inference of discriminatory intent might be drawn." Id. Of these three categories of circumstantial allegations, the allegations in the Complaint fail to fit within the first two categories. Gilhooly does not allege she was passed over for a specific job, nor has she adequately pled facts suggesting similarly situated male employees received systematically better treatment, as discussed above.

Gilhooly's Complaint relies solely on "bits and pieces" of factual material from which an inference of discriminatory intent may be drawn. She claims that UBS laid off "primarily female employees because of their gender" beginning in April of 2008; that her work was subjected to greater scrutiny because of her gender" beginning in the summer of 2008; that she was blamed for alleged mistakes which did not exist and mistakes made by others," and that following her transfer to Chicago, UBS assigned available consumer work to men and denied it to her. (Compl. ΒΆΒΆ 10, 11, 14.) These bare assertions alleging adverse actions by UBS toward Gilhooly solely "because of her gender" are nothing more than a "formulaic recitation of the elements" of a sex discrimination claim. See Iqbal, 129 S. Ct. at 1951 (internal quotation marks ...

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