Neal v. JPMorgan Chase Bank
Filing
54
MEMORANDUM AND ORDER granting 43 Motion for Summary Judgment. For the reasons set forth in the attached Memorandum and Order, defendant's motion for summary judgment is granted on all claims. Specifically, the uncontroverted facts demonstrate that, under the totality of the circumstances test, plaintiff signed the Release Agreement with the Bank voluntarily and knowingly, and therefore released, inter alia, all of the claims she asserts in this action. In an abundance of caution, however , the Court has analyzed the merits of the plaintiff's claims and concludes that, construing the evidence most favorably to the plaintiff and drawing all inferences in her favor, no rational jury could find that any of these acts were motivated by discriminatory animus or were retaliation for plaintiff filing an EEOC complaint. The Clerk of the Court shall enter judgment accordingly and close this case. The Court has mailed a copy of the Memorandum and Order to the plaintiff. Ordered by Judge Joseph F. Bianco on 8/8/2012. (Weber, Rebecca)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
_____________________
No 10-1157 (JFB) (ETB)
_____________________
BERNADETTE NEAL,
Plaintiff,
VERSUS
JPMORGAN CHASE BANK, N.A.,
Defendant.
___________________
MEMORANDUM AND ORDER
August 8, 2012
___________________
JOSEPH F. BIANCO, District Judge:
Pro se plaintiff Bernadette Neal (“Neal”
or “plaintiff”) brings this civil rights action
against her former employer, JPMorgan
Chase Bank, N.A. (“Bank” or “defendant”),
alleging that defendant discriminated against
her on the basis of race and retaliated against
her during her employment with its
subsidiary, Chase Auto Finance (“CAF”), in
violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., as
amended (“Title VII”), as well as New York
State law. 1 Specifically, plaintiff alleges that
she was discriminated against because she
1
Although plaintiff did not specify statutes in the
complaint, which she originally filed in state court,
the Court construes the complaint liberally to raise
both federal and state discrimination and retaliation
claims.
did not receive appropriate training and
coaching and then received a Written
Warning, and all of plaintiff’s team, who
were minorities, were written up within days
of each other by their new supervisor.
Additionally, plaintiff asserts that Human
Resources failed to correct errors in
plaintiff’s work record concerning her use of
Family and Medical Leave Act (“FMLA”)
leave. Plaintiff also asserts that the Bank
retaliated against her after she filed an Equal
Employment Opportunity Commission
(“EEOC”) discrimination charge on January
7, 2008 against the Bank by (1) giving her a
negative performance evaluation and
denying her a salary increase in 2008; (2)
transferring her to five different supervisors
in two years; (3) providing her with
fraudulent pay statements in 2009; and (4)
making it difficult for her to take FMLA
leave.
A.
Plaintiff, who is Black, attended and
graduated with honors from Andrew
Jackson High School in 1988. (Def.’s Rule
56.1 Statement (“Def.’s 56.1”) ¶¶ 1-2.) She
attended Long Island University (“LIU”) on
a full-time basis from 1999 until 2001.
(Def.’s 56.1 ¶ 3; Pl.’s Rule 56.1 Statement
“Pl.’s 56.1” ¶ 3.) While at LIU, Neal took
more than 48 credits towards a major in
Finance in such areas as “accounting,
finance, law, business [and] marketing,” and
was on the Dean’s List. (Def.’s 56.1 ¶ 4.)
The defendant moves for summary
judgment, arguing that (1) the action should
be dismissed because plaintiff entered into a
valid agreement with the Bank when she
was terminated accepting the Bank’s offer of
severance benefits in return for releasing the
Bank from any claims plaintiff had against
it; (2) most, if not all, of the actions plaintiff
complains about were not adverse
employment actions; (3) the Bank
articulated legitimate non-discriminatory
reasons for its actions regarding plaintiff; (4)
plaintiff has produced no evidence to show
that the Bank’s reasons for its actions
regarding her were a pretext for racial
discrimination; and (5) plaintiff cannot
prove that defendant retaliated against her.
Defendant is a national banking
association, that, through its Retail Financial
Services line, operates Chase Auto Finance
(“CAF”), which provides financing to
individuals and dealers for the purchase of
automobiles. (Def.’s 56.1 ¶¶ 16-17.) Neal
was hired by defendant, effective November
13, 2006, to work for CAF. (Id. ¶ 18-19.)
She had a New York Life, Accident &
Health Insurance producer/broker’s license
at the time. (Id. ¶ 6.) She was an at-will
employee employed part-time (20 hours per
week) as a Customer Service Representative
(“CSR”) in CAF’s Call Center in Garden
City, New York. (Id. ¶¶ 20-23.)
For the reasons set forth below,
defendant’s motion for summary judgment
is granted. Based upon the uncontroverted
evidence, the Court concludes, as a matter of
law, that plaintiff voluntarily and knowingly
entered into a valid agreement with the Bank
when she was terminated accepting the
Bank’s offer of severance benefits in return
for releasing the Bank from any claims
plaintiff had against it. Even assuming,
arguendo, that the release was invalid, the
Court further concludes, construing the
evidence in the light most favorable to
plaintiff, that no rational jury could
determine that plaintiff was discriminated
against on the basis of her race, or that she
was retaliated against for engaging in
protected activity.
I.
Plaintiff’s Background
B.
The Release Agreement
JPMorgan has a Severance Pay Plan that
sets forth certain benefits that may be
available to eligible employees. (Id. ¶ 25.)
The Severance Pay Plan offers various
forms of assistance, including financial
assistance, to employees whose employment
involuntarily terminates as a result of the
events specified in the Plan. (Id. ¶ 26.) One
of the events specified in the Plan is the
elimination of the employee’s position. (Id.
¶ 27.) The Severance Pay Plan conditions
the payment of severance benefits on the
execution of a release. (Id. ¶ 28.)
FACTUAL BACKGROUND
The facts, construed in the light most
favorable to plaintiff, the non-moving party,
see Capobianco v. City of New York, 422
F.3d 47, 50 (2d Cir. 2005), are as follows:
2
Sometime in 2008, CAF advised its
Garden City Call Center employees,
including Neal, that it was going to close the
Call Center and eliminate all of the CSR
positions at that location. (Id. ¶ 29.) On or
about October 3, 2008, Human Resources
Business
Partner
Elizabeth
Dorritie
(“Dorritie”) provided Neal and other CAF
employees with formal written notice that
their positions were being eliminated and
their employment would be terminated as of
December 1, 2008. (Id. ¶ 30; Pl.’s 56.1
¶ 27.) The notice letter provided Neal with
sixty (60) days paid notice of the elimination
of her position and the proposed termination
of her employment. (Def.’s 56.1 ¶ 31.) The
notice letter also offered Neal four (4) weeks
of severance pay if she did not obtain
another position with JPMorgan during that
period, on the condition that Neal execute a
proposed Release Agreement (“Release” or
“Release Agreement”). (Id. ¶ 32.) Neal had
no other right to any severance benefits. (Id.
¶ 33.) Defendant encouraged Neal to consult
an attorney regarding the proposed Release
Agreement, and gave her forty-five days in
which to execute and return the agreement
in order to agree to its benefits. 2 (Id. ¶¶ 3435.) Neal chose not to consult an attorney,
and did not ask any questions about the
Release Agreement of a CAF representative.
(Id. ¶¶ 37-38.)
includes claims I know about and claims I
do not know about, as well as the continuing
effects of anything that happened before I
sign below.” (Def.’s Mot. for Summary
Judgment, Ex. 7, Mar. 21, 2011, ECF No.
26-2.) The Release Agreement lists some of
the claims that are covered by it, including
claims under Title VII of the Civil Rights
Act of 1964 and claims of retaliation. (Id.)
The Release Agreement further states, “I
agree that I will not file a lawsuit or initiate
any other legal proceedings for money or
other relief in connection with the claims I
am releasing above.” (Id.) Finally, the
Release Agreement states, “By signing
below, I confirm that I have read this
Release, understand it, agree to it and sign it
knowingly and voluntarily. I agree that I am
signing this Release in exchange for benefits
to which I would not otherwise be entitled. I
am hereby advised to discuss this Release
with an attorney of my choosing (at my own
expense).” (Id.) Under the line, “Intending
to be legally bound, I, Bernadette Neal,
hereby sign the foregoing Release this 4th
day of November, 2008,” Neal signed the
form and had it notarized. (Id.)
C.
Customer Service Representative
Duties and Responsibilities
At CAF, CSRs were responsible for
performing a variety of service and sales
functions. (Def.’s 56.1 ¶ 47.) Each CSR
handles approximately 80-100 calls a day
from CAF customers (including car dealers),
for which they must meet quality,
productivity, sales, and sign-in time
measures. (Id. ¶ 48.) During these calls,
CSRs are responsible for resolving financial
and non-financial customer questions, and
are
expected
to
recognize
sales
opportunities, be able to describe features
and benefits of Chase products and services,
and to explain required disclosures. (Id.
¶ 49.)
The Release Agreement, which is five
pages long, includes the following relevant
language: “I hereby release JPMorgan Chase
& Co. . . . from all liability for any claims or
potential claims relating to my employment
with the Company and/or the termination of
my employment, subject to the exceptions
listed below. I understand that ‘claims’
2
Plaintiff states that defendant “sought to have the
agreement signed by close of business November 5,
2008,” as opposed to November 17, 2008, which was
forty-five days from October 3, 2008. (Pl.’s 56.1
¶ 29.)
3
After plaintiff was hired as of November
13, 2006, she went through a paid training
period and then began working as a CSR in
mid-January 2007. (Id. ¶ 50.) In January
2007, CAF’s Customer Service Managers
distributed to the new CSRs the “2007
Customer Service Performance Guidelines”
(the “Guidelines”) and the “2007 Quality,
Productivity & Service to Sales Standards”
(the “Standards”). (Id. ¶ 51.) 3 The
Guidelines listed performance objectives
referred to as “Quality Score”, “Offer Rate”,
“Acceptance Rate”, “Signed in Time”,
“Average Handle Time” and “Available
Time.” (Id. ¶ 52.) 4 The Guidelines set out a
transitional progression of compliance with
the performance objectives that would be
expected of new CSRs during their first
three months working in the Call Center,
increasing on a monthly basis from the first
full month in the Call Center to the fourth
month, when the new CSRs are expected to
achieve the full level of all the performance
objectives. (Id. ¶ 53.)
the Offer Rate objective in February and
October 2007, and the Availability objective
in June and October 2007. (Id. ¶ 63.)
Plaintiff’s failure to meet her objectives that
number of times warranted a First Written
Warning. (Id. ¶ 64.)
CAF has an Attendance and Lateness
Policy and, in August 2007, issued a revised
version of its “Standards for Attendance and
Late Arrival/Early Departure.” (Id. ¶ 65.)
Under these standards, a Written Warning is
also warranted if a part-time employee has
four unscheduled absences during a twelvemonth period. (Id. ¶ 67.) According to
plaintiff’s Record of Absence for 2007,
plaintiff had five instances of unscheduled
absences, covering eight days, during 2007. 6
(Id. ¶ 68.) Under the standards, a Written
Warning is warranted if a part-time
employee has six unscheduled late arrivals
or early departures during a twelve-month
period. (Id. ¶ 69.) According to plaintiff’s
Record of Punctuality for 2007, plaintiff had
eight instances of unscheduled late arrivals
and/or early departures during 2007. (Id.
¶ 70.) In accordance with the Bank’s
Corrective Action Policy, plaintiff received
a Written Warning in November 2007 based
upon her failure to satisfy the CSR
performance
objectives,
and
her
unscheduled absenteeism/late arrivals/early
departures. (Id. ¶ 73.) 7
Plaintiff failed to meet the business
objectives standards at least 9 times in a
rolling 12-month period through October
2007. (Id. ¶ 62.) 5 Specifically, monthly
monitoring reports regarding plaintiff’s
performance and the “Team Pazmino”
record show that plaintiff failed to meet the
Average Handle Time objective in March,
May, June, September, and October 2007,
3
Plaintiff “cannot say with certainty” that these
documents were “given at all to any of the CAF ‘new
hires.’” (Pl.’s 56.1 ¶ 34.)
4
In June 2007, CAF distributed new versions of the
Guidelines and Standards. (Def.’s 56.1 ¶ 60.) The
June 2007 Guidelines and Standards adjusted some of
the performance standards, but did not change the
metrics for determining whether corrective action
was warranted. (Id. ¶ 61.)
5
Plaintiff asserts that this statement is “misleading by
not stating that some of the occurrences happened in
the Plaintiff’s transitional phase of employment and
would not be uncommon to receive.” (Pl.’s 56.1
¶ 38.)
6
According to the Dorritie Reply Declaration,
plaintiff had six instances of unscheduled absences,
covering eight days, during 2007. (Dorritie Reply
Declaration (“Dorritie Reply Decl.”) at ¶ 7, July 15,
2011, ECF No. 37.) Whether plaintiff had five or six
instances of unscheduled absences is not dispositive
of this motion in light of plaintiff’s numerous other
underperformance and attendance issues.
7
Plaintiff asserts that she did not accept the
November 2007 “error riddled Written Warning”
because many of the documents used to determine
the Written Warning were “filled with errors and not
fixed.” (Pl.’s 56.1 ¶¶ 49-50.)
4
Plaintiff’s performance for 2007 was
rated as “Meets Expectations.” (Id. ¶ 75.)
Plaintiff’s supervisor at the time, Brett
Mounsey (“Mounsey”), expressed some
concerns
regarding
plaintiff’s
job
performance. (Id. ¶ 76.)
D.
Neal was “put on a two-month restricted
warning.” (Def.’s 56.1 ¶ 83.) After plaintiff
received her Written Warning, she
complained that it overstated the number of
times she failed to meet the performance
objectives and the number of times she had
unscheduled absences from work. (Id. ¶ 84.)
Alleged Acts of Discrimination
E.
Plaintiff claims that “she was
discriminated against by the defendant
because of her race.” (Id. ¶ 77.) Specifically,
plaintiff claims that she was unfairly
disciplined because the “entire team that I
was hired w/ in Nov 06 were written up
within days of each other all minorities.”
(Id. ¶ 78.) Of the 17 CSRs hired along with
the plaintiff in November 2006, four were
Asian, one was Hispanic/Latino, three were
White, seven were Black/African American,
and two were not specified. (Id. ¶ 80.)
Eleven 8 of these 17 CSRs resigned prior to
November 2007 for a variety of reasons,
including all three of the White CSRs.
(Dorritie Reply Declaration (“Dorritie Reply
Decl.”) at ¶ 3, July 15, 2011, ECF No. 37.)
Of the six remaining CSRs, only four
received Written Warnings in November
2007, two of whom were Black, one was
Hispanic/Latino, and one was Asian. 9 (Id.
¶ 4.) Of the two CSRs who did not receive
Written Warnings in November 2007, one
was Black and one was Asian. (Id.)
Alleged Acts of Retaliation
Plaintiff claims that, after she filed a
Charge of Discrimination with the EEOC on
January 7, 2008, she was retaliated against
for filing that charge. (Id. ¶¶ 88-89.) She
claims that on the day she filed her first
charge – January 7, 2008 – she openly
discussed her charge, and then was
transferred to another team. (Id. ¶ 89.)
Defendant contends that plaintiff was
transferred
from
Zaira
Pazmino’s
(“Pazmino”) team to Mounsey’s team in
January 2008 because Pazmino had gone on
a leave of absence, as a result of which her
entire team was transferred to different
supervisors. (Id. ¶ 90.) Plaintiff asserts,
however, that she was the only one
transferred from Pazmino’s team to
Mounsey’s team, and that no one else was
transferred for any leave of absence. (Pl.’s
56.1 ¶ 67.) CAF did not receive a copy of
plaintiff’s charge from the EEOC until
weeks later and, therefore, did not have
confirmation that Neal filed a charge until
that time. (Def.’s 56.1 ¶ 92.) 10
8
According to Defendant’s 56.1 Statement, ten of the
CSRs resigned, and seven remained. (Def.’s 56.1 ¶
81.) Plaintiff states that she has organization charts to
show that, by October 2007, “only six of the CSRs
hired in November 2007 remained in CAF.” (Pl.’s
56.1 ¶ 58.) Given that the Dorritie Reply Declaration
states that six CSRs remained, it appears that
defendant and plaintiff agree that only six CSRs
remained in November 2007.
9
Plaintiff states that the four employees who
remained on Pamela Copeland’s team and then
switched in October 2007 to Pazmino’s team “were
all written up.” (Pl.’s 56.1 ¶ 58.) The two who were
transferred to Copeland’s new team were “not written
up and were held to a different criteria.” (Id.)
Plaintiff asserts that her evaluation was
extremely negative and not reflective of her
10
Plaintiff contends that she “openly discussed her
filing of EEOC charges on the call center floor.”
(Pl.’s 56.1 ¶ 68.) She further states that she “spoke to
at least one supervisor that she recalls before the
charge was placed with EEOC,” (Pl.’s Opp. ¶ 34.),
and defendant has included a declaration from
Dorritie in which she admits that “Neal may have
made a general statement to me at some time that she
was going to file a charge.” (Dorritie Decl. ¶ 34, Mar.
21, 2011, ECF No. 24.)
5
it should have been listed as an FMLA day.
(Id. ¶ 100.) Plaintiff contends that neither
her Punctuality and Absence Chart nor her
Written Warning were corrected to reflect
the removal of October 1, 2007. (Pl.’s 56.1
¶ 76.) Dorritie does not recall that any of the
other days left on the Written Warning were
still in question, but plaintiff asserts that she
advised Dorritie that June 7, 2007 and June
8, 2007 were in dispute and should have
been approved FMLA absences. (Def.’s 56.1
¶ 101, Pl.’s 56.1 ¶ 77.)
achievements. (Id. ¶ 93.) Although plaintiff
received a “Meets Expectation” rating, she
was given comments such as: “Work on
approaching work and challenges with a
positive view”; “Bernadette needs to work
on doing things without being told”;
“Bernadette should continue to work on her
written and verbal communication skills”;
“At times, Bernadette has expressed views
and has demonstrated approaches that may
be discouraging and de-motivating to
others”; “I would like to see Bernadette
establish effective working relationships.
When asked to do something by
management, Bernadette should try to act
quickly and with enthusiasm, attracting the
favorable attention from superiors.” (Id.
¶ 94; Pl.’s 56.1 ¶ 70.)
Plaintiff’s final allegation of retaliation
is that she had five supervisors in less than
two years. (Def.’s 56.1 ¶ 102; Pl.’s 56.1
¶ 78.) The CAF Customer Service
Department in Garden City had reorganized
several times in 2007 and 2008 due to
changing economic times and, during 2008,
the Department had been downsizing as it
transitioned to its closure by year-end.
(Def.’s 56.1 ¶ 103.) Pamela Copeland
(“Copeland”), who is Black, was plaintiff’s
supervisor from January 2007 11 through
October 2007. (Id. ¶ 104.) Because
Copeland was out a number of times during
2007, Copeland’s team was moved to
Pazmino, who is Hispanic. (Id. ¶ 105.) In
January 2008, Pazmino went on a leave of
absence, so her entire team, including
plaintiff, was transferred to different
supervisors. (Id. ¶ 106.) Plaintiff states that
she does not remember Pazmino going on a
leave of absence and asserts that she,
plaintiff, was the only person moved. (Pl.’s
56.1 ¶ 80.) Next, plaintiff was reassigned to
Mounsey, a White female, because plaintiff
“had made a point” that she frequently did
not have a supervisor available because she
worked from 4:00 p.m. to 8:00 p.m. and
Mounsey worked later in the evening.
Plaintiff also asserts that she was entitled
to a pay raise that she did not receive.
(Def.’s 56.1 ¶ 95.) At the Bank, any increase
is always a matter of management
discretion, regardless of an employee’s
performance rating. (Id. ¶ 96.) Since a Meets
Expectation rating covers 70% of the
applicable employee population, it is not
unusual for some employees to receive a
“Meets” rating, but not receive any salary
increase. (Id. ¶ 97.)
Plaintiff also contends that she was met
with problems every time she tried to take a
day of using FMLA leave. (Id. ¶ 98.)
Specifically, plaintiff asserts that her
supervisor, Mounsey, changed days from
“scheduled” to “unscheduled,” even though
all FMLA absences are supposed to be
“scheduled.” (Pl.’s 56.1 ¶ 75.) When using
any of her approved intermittent FMLA
time, plaintiff was required to specify that
she was taking an FMLA day in order for
CAF to record it that way. (Def.’s 56.1
¶ 99.) When plaintiff met with Dorritie to
discuss her Written Warning, Dorritie
removed October 1, 2007 – one of the days
listed as an unscheduled absence – because
11
Plaintiff states that Copeland was plaintiff’s
supervisor beginning in November 2006. (Pl.’s 56.1
¶ 79.)
6
(Def.’s 56.1 ¶ 107.) 12 Mounsey obtained a
new position in a different department in
April 2008 and was replaced by Jennifer
Martinez, who is White. (Id. ¶ 108.)
Martinez went on a leave of absence and
plaintiff was reassigned to Tania Sanchez
from June 2008 to November 2008. (Id.
¶ 109.) Defendant contends that the majority
of other employees in the Department,
including
similarly
situated
White
employees, were also reassigned in order to
meet business needs. (Id. ¶ 111.) Plaintiff
asserts that all of the CAF CSRs “from the
months of October 2007 through February
2008” remained on their assigned team,
other than Neal. (Pl.’s 56.1 ¶ 83.)
F.
for 2007, as well as the withholdings from
that compensation. (Id. ¶ 7.)
II. PROCEDURAL HISTORY
Defendant removed the case from New
York State Supreme Court, Queens County,
on March 15, 2010 based on diversity of
citizenship jurisdiction. On March 21, 2011,
defendant filed a motion for summary
judgment. Plaintiff filed an opposition to the
motion for summary judgment, dated May
19, 2011. Plaintiff then submitted her Rule
56.1 Statement, which was dated June 13,
2011. On July 22, 2011, defendant filed a
reply in support of its motion for summary
judgment, along with three reply
declarations. On December 19, 2011, the
Court held a telephone conference to discuss
whether defendant had served the pro se
notice for summary judgment under Local
Rule 56.2 and to address the reply
declarations. On December 19, 2011,
defendant re-filed its motion for summary
judgment, enclosing the pro se notice under
Local Rule 56.2. Plaintiff filed a response to
the reply declarations, dated January 30,
2012. On February 14, 2012, defendant filed
sur-reply declarations. 13 The Court has fully
considered the parties’ submissions.
Pay Statements
Plaintiff states that she “discovered in
March 2009 that someone from JPMorgan
Chase falsified her 2007 payroll” by
changing the pay periods to make it appear
as if she worked full-time. (Id. ¶ 84.) In her
Reply Declaration, Kathleen M. Hartmann
(“Hartmann”), Vice President and Payroll
Manager in the Payroll Management group,
explains that she reviewed Neal’s 2007 pay
statements and found them to be correct.
(Hartmann Reply Declaration (“Hartmann
Reply Decl.”) at ¶ 4, July 20, 2011, ECF No.
38.) Dorritie then sent Hartmann copies of
the records that Neal had received in 2009,
and Hartmann found that they were different
than the 2007 records, by multiples of her
actual pay. (Id. ¶ 5.) Hartmann attempted to
reprint the inaccurate records Neal had
received in 2009, but was unable to do so,
and believes that a system disruption caused
the issue in the records Neal received. (Id.
¶ 6.) Hartmann then reviewed Neal’s W-2
statement for 2007 and found that it
accurately set forth plaintiff’s compensation
III. STANDARD OF REVIEW
The standards for summary judgment are
well settled. Pursuant to Federal Rule of
Civil Procedure 56(a), a court may only
grant a motion for summary judgment if
“the movant shows that there is no genuine
dispute as to any material fact and the
movant is entitled to judgment as a matter of
law.” Fed. R. Civ. P. 56(a). The moving
party bears the burden of showing that he or
13
Because plaintiff has not had an opportunity to
respond to the defendant’s sur-reply declarations, and
because they are not necessary for the Court to
address the motion, the Court has not considered or
relied on them in reaching this decision.
12
Plaintiff notes that other co-workers were not
moved for their “convenience.” (Pl.’s 56.1 ¶ 81.)
7
she is entitled to summary judgment.
Huminski v. Corsones, 396 F.3d 53, 69 (2d
Cir. 2005). “A party asserting that a fact
cannot be or is genuinely disputed must
support the assertion by: (A) 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; or (B) showing that the materials
cited do not establish the absence or
presence of a genuine dispute, or that an
adverse party cannot produce admissible
evidence to support the fact.” Fed. R. Civ.
P. 56(c)(1). The court “is not to weigh the
evidence but is instead required to view the
evidence in the light most favorable to the
party opposing summary judgment, to draw
all reasonable inferences in favor of that
party,
and
to
eschew
credibility
assessments.” Amnesty Am. v. Town of W.
Hartford, 361 F.3d 113, 122 (2d Cir. 2004)
(quoting Weyant v. Okst, 101 F.3d 845, 854
(2d Cir. 1996)); see Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct.
2505, 91 L. Ed. 2d 202 (1986) (summary
judgment is unwarranted if “the evidence is
such that a reasonable jury could return a
verdict for the nonmoving party”).
may be granted.” Anderson, 477 U.S. at
249-50, 106 S. Ct. 2505 (citations omitted).
Indeed, “the mere existence of some alleged
factual dispute between the parties” alone
will not defeat a properly supported motion
for summary judgment. Id. at 247-48, 106
S. Ct. 2505 (emphasis in original). Thus, the
nonmoving party may not rest upon mere
conclusory allegations or denials but must
set forth “‘concrete particulars’” showing
that a trial is needed. R.G. Group, Inc. v.
Horn & Hardart Co., 751 F.2d 69, 77 (2d
Cir. 1984) (quoting SEC v. Research
Automation Corp., 585 F.2d 31, 33 (2d Cir.
1978)). Accordingly, it is insufficient for a
party opposing summary judgment “‘merely
to assert a conclusion without supplying
supporting arguments or facts.’” BellSouth
Telecomms., Inc. v. W.R. Grace & Co., 77
F.3d 603, 615 (2d Cir. 1996) (quoting
Research Automation Corp., 585 F.2d at
33).
The Second Circuit has provided
additional guidance regarding summary
judgment motions in discrimination cases:
We have sometimes noted that an
extra measure of caution is merited
in affirming summary judgment in a
discrimination action because direct
evidence of discriminatory intent is
rare and such intent often must be
inferred
from
circumstantial
evidence found in affidavits and
depositions. See, e.g., Gallo v.
Prudential Residential Servs., 22
F.3d 1219, 1224 (2d Cir. 1994).
Nonetheless, “summary judgment
remains available for the dismissal of
discrimination claims in cases
lacking genuine issues of material
fact.” McLee v. Chrysler Corp., 109
F.3d 130, 135 (2d Cir. 1997); see
also Abdu-Brisson v. Delta Air
Lines, Inc., 239 F.3d 456, 466 (2d
Cir. 2001) (“It is now beyond cavil
Once the moving party has met its
burden, the opposing party “‘must do more
than simply show that there is some
metaphysical doubt as to the material
facts . . . . [T]he nonmoving party must
come forward with specific facts showing
that there is a genuine issue for trial.’”
Caldarola v. Calabrese, 298 F.3d 156, 160
(2d Cir. 2002) (quoting Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S.
574, 586-87, 106 S. Ct. 1348, 89 L. Ed. 2d
538 (1986) (emphasis in original)). As the
Supreme Court stated in Anderson, “[i]f the
evidence is merely colorable, or is not
significantly probative, summary judgment
8
1.
that summary judgment may be
appropriate even in the fact-intensive
context of discrimination cases.”).
“New York law provides that this Court
must enforce contract provisions clearly
expressing the intent of the parties.” Beth
Isr. Med. Ctr. v. Horizon Blue Cross & Blue
Shield of N.J., Inc., 448 F.3d 573, 580 (2d
Cir. 2006) (citing Greenfield v. Philles
Records, Inc., 98 N.Y.2d 562, 569, 780
N.E.2d 166, 750 N.Y.S.2d 565 (2002) (“[A]
written agreement that is complete, clear and
unambiguous on its face must be enforced
according to the plain meaning of its
terms.”)). “A plaintiff may waive a statutory
claim for discrimination as long as it is done
knowingly and voluntarily.” Shain v. Ctr.
for Jewish History, No. 04-CV-1762 (NRB),
2006 U.S. Dist. LEXIS 89056, at *8
(S.D.N.Y. Dec. 8, 2006) (citing Bormann v.
AT&T Commc’ns, Inc., 875 F.2d 399, 402
(2d Cir. 1989) (dismissing ADEA claims),
superseded by statute, Older Workers
Benefits Protection Act, 29 U.S.C. § 626(f),
as recognized in Am. Airlines, Inc. v.
Cardoza-Rodriguez, 133 F.3d 111, 117 (1st
Cir. 1998)); Branker v. Pfizer, Inc., 981 F.
Supp. 862, 865-66 (S.D.N.Y. 1997)
(dismissing NYSHRL claims)).
Schiano v. Quality Payroll Sys., 445 F.3d
597, 603 (2d Cir. 2006) (quoting Holtz v.
Rockefeller & Co., Inc., 258 F.3d 62, 69 (2d
Cir. 2001)).
IV. DISCUSSION
Plaintiff asserts that she has been
discriminated against based on her race in
violation of Title VII and that she has been
subjected to retaliation in violation of Title
VII for engaging in protected activity.
Defendant argues that (1) the action should
be dismissed because plaintiff entered into a
valid agreement with the Bank when she
was terminated accepting the Bank’s offer of
severance benefits in return for releasing the
Bank from any claims plaintiff had against
it; (2) most, if not all, of the actions plaintiff
complains about were not adverse
employment actions; (3) the Bank
articulated legitimate non-discriminatory
reasons for its actions regarding plaintiff; (4)
plaintiff has produced no evidence to show
that the Bank’s reasons for its actions
regarding her were a pretext for racial
discrimination; and (5) plaintiff cannot
prove that defendant retaliated against her.
For the reasons set forth
defendant’s motion is granted.
A.
Applicable Law
In determining whether a waiver was
“knowing and voluntary,” a totality of the
circumstances test is applied. Branker, 981
F. Supp. at 865-66 (citing Bormann, 875
F.2d at 403); Livingston v. Adirondack
Beverage Co., 141 F.3d 434, 437-38 (2d Cir.
1998). Factors to be considered include: “(1)
the plaintiff’s education and business
experience, (2) the amount of time the
plaintiff had possession of or access to the
agreement before signing it, (3) the role of
plaintiff in deciding the terms of the
agreement, (4) the clarity of the agreement,
(5) whether the plaintiff was represented by
or consulted with an attorney, and (6)
whether the consideration given in exchange
for the waiver exceeds employee benefits to
which the employee was already entitled by
below,
The Release
Defendant
argues
that
summary
judgment should be granted in its favor on
all claims because the plaintiff knowingly
and voluntarily signed a Release Agreement
barring her from pursuing any legal claims.
For the reasons set forth below, the Court
agrees.
9
Jackson High School in 1988. (Def.’s 56.1
¶¶ 1-2.) She attended Long Island University
(“LIU”) on a full-time basis from 1999 until
2001. (Id. ¶ 3; Pl.’s 56.1 ¶ 3.) While at LIU,
Neal took more than 48 credits towards a
major in Finance in such areas as
“accounting, finance, law, business [and]
marketing,” and was on the Dean’s List.
(Def.’s 56.1 ¶ 4.) Furthermore, Neal worked
in the insurance and financial services
industry for several years and had held at
least one supervisory position. (Id. ¶¶ 6-13.)
Neal’s level of experience and knowledge,
therefore, weighs in favor of validity. See
Reid v. IBM, 95 Civ. 1755 (MBM), 1997
U.S. Dist. LEXIS 8905, *16-17 (S.D.N.Y.
June 26, 1997) (“plaintiff’s education and
business experience – business studies in
high school and community college, and 10
years of managerial experience at IBM – is
sufficient to warrant the inference that he
understood the Release”); Nicholas., 929 F.
Supp. at 731 (high school graduate who had
completed subsequent training in computer
programming and occupied a management
position was capable of understanding
release).
contract or law.” Bormann, 875 F.2d at 403
(quotations and citation omitted); accord
Livingston, 141 F.3d at 438. The Bormann
factors are not exhaustive and not every
factor must be in defendant’s favor for the
release to be found knowing and voluntary;
rather, all of the factors must be examined
under the totality of the circumstances. See
Bormann, 875 F.2d at 403; Laniok v.
Advisory Comm. of Brainerd Mfg. Co.
Pension Plan, 935 F.2d 1360, 1368 (2d Cir.
1991); see also Hernandez v. Philip Morris
USA, Inc., 486 F.3d 1, 10 (1st Cir. 2007)
(“That one of the six factors tends to favor
the appellants is not enough to tip the
summary judgment balance; the law is clear
that no single factor is determinative in
evaluating whether a waiver is knowing and
voluntary. It is sufficient to sustain the
validity of a release and the enforceability of
its terms, at the summary judgment stage,
that the relevant circumstances point
unerringly toward that result.”) (internal
citation omitted); accord Nicholas v.
NYNEX, Inc., 929 F. Supp. 727, 732
(S.D.N.Y. 1996). Moreover, under New
York law, which applies a lesser standard,
“a release need only be clear, unambiguous,
and knowingly and voluntarily entered into.”
Shain, 2006 U.S. Dist. LEXIS 89056, at *9
(citing Nicholas, 929 F. Supp. at 732);
accord Goode v. Drew Bldg. Supply, Inc.,
266 A.D.2d 925, 925, 697 N.Y.S.2d 417,
417-18 (N.Y. App. Div. 1999) (“We reject
the contention that the validity of that
release is to be determined in accordance
with . . . the totality of the circumstances
standard
applicable
to
Federal
discrimination claims.” (citations omitted)).
2.
The second factor, the amount of time
the plaintiff had possession of or access to
the agreement before signing it, also
supports a finding that plaintiff signed the
Release knowingly and voluntarily. On
October 3, 2008, Dorritie provided Neal
with formal written notice that her position
would be eliminated and her employment
terminated as of December 1, 2008. (Def.’s
56.1 ¶ 30; Pl.’s 56.1 ¶ 27.) The notice letter
offered Neal four weeks of severance pay if
she did not obtain another position with
JPMorgan Chase during that period, on
condition that Neal execute a proposed
Release Agreement. (Def.’s 56.1 ¶ 32.) The
letter gave plaintiff forty-five days, or until
November 17, 2008, to execute and return
the agreement in order to agree to its
benefits.
(Id. ¶¶ 34-35; Def.’s Ex. 6.)
Application
The first factor, plaintiff’s education and
business experience, supports a finding that
she knowingly and voluntarily signed the
Release Agreement. Plaintiff attended and
graduated with honors from Andrew
10
signing below, I confirm that I have read
this Release, understand it, agree to it and
sign it knowingly and voluntarily. I agree
that I am signing this Release in exchange
for benefits to which I would not otherwise
be entitled.” (Id.) Under the line, “Intending
to be legally bound, I, Bernadette Neal,
hereby sign the foregoing Release this 4th
day of November, 2008,” Neal signed the
form and had it notarized. (Id.) The
language makes clear that the signatory
releases the Bank from “all liability for any
claims” relating to employment with the
Bank. The language throughout the Release
Agreement is straightforward, clear, and
repeatedly conveys that the consequence of
signing is the release of all claims against
the Bank. Accordingly, this factor weighs in
favor of validity. See Shain 2006 U.S. Dist.
LEXIS 89056, at *10; Dewey, 1995 U.S.
Dist. LEXIS 13134, at *6 (“The Release
signed by Dewey is unambiguous. It is less
than two typewritten pages, written in clear
and simple language, and releases all
‘actions, suits . . . claims and demands’
against [the employer] ‘including, without
limitation, any and all claims arising out of
or in
connection
with
[Dewey’s]
employment.’”).
Plaintiff contends that defendant sought to
have the agreement signed by close of
business on November 5, 2008 instead of
November 17, 2008. (Pl.’s 56.1 ¶ 29.)
Construing the facts in the light most
favorable to plaintiff and assuming that she
was given only until November 5, 2008, she
had thirty-three days in which to execute
and sign the release. That plaintiff had
thirty-three days to execute the release
supports a finding that plaintiff knowingly
and voluntarily signed the Release. See
Shain, 2006 U.S. Dist. LEXIS 89056, at *11
(several hours sufficient); Laramee v. Jewish
Guild for the Blind, 72 F. Supp. 2d 357, 360
(S.D.N.Y. 1999) (less than one month
sufficient); Dewey v. PTT Telecom Neth.,
U.S., 94 Civ. 5983 (HB), 1995 U.S. Dist.
LEXIS 13134, at *5-6 (S.D.N.Y. Sept. 11,
1995), aff’d 101 F.3d 1392 (2d Cir. 1996)
(four days sufficient).
The fourth factor, the clarity of the
agreement, supports a finding that plaintiff
knowingly and voluntarily signed a Release
agreement that she fully understood. The
Release Agreement includes the following
relevant language: “I hereby release
JPMorgan Chase & Co. . . . from all liability
for any claims or potential claims relating to
my employment with the Company and/or
the termination of my employment, subject
to the exceptions listed below. I understand
that ‘claims’ includes claims I know about
and claims I do not know about, as well as
the continuing effects of anything that
happened before I sign below.” (Def.’s Mot.
for Summary Judgment, Ex. 7.) The Release
lists some of the claims that are covered by
the Release, including claims under Title
VII of the Civil Rights Act of 1964 and
claims of retaliation. (Id.) The Release
further states, “I agree that I will not file a
lawsuit or initiate any other legal
proceedings for money or other relief in
connection with the claims I am releasing
above.” (Id.) Finally, the Release states, “By
Finally, the sixth factor, whether the
consideration given in exchange for the
waiver exceeds employee benefits to which
the employee was already entitled by
contract or law, weighs in favor of validity,
since Neal had no other right to any
severance benefits. (Def.’s 56.1 ¶ 33.) See
Dewey, 1995 U.S. Dist. LEXIS 13134, at *6
(“In exchange for executing the Release,
Dewey received one month’s salary,
employee benefits and other benefits, even
though Dewey’s employment contract did
not entitle her to any compensation for
resigning.”).
Two of the eight factors weigh against a
finding of validity: the role of plaintiff in
11
the totality of the circumstances, therefore,
the fact that plaintiff could not negotiate the
terms of the agreement and was not
represented by an attorney does not
outweigh all of the other factors that
overwhelmingly support a finding that she
knowingly and voluntarily entered into the
agreement. See also Laramee, 72 F. Supp.
2d at 360 (“even assuming as true
[plaintiff’s] allegation that she did not have
an opportunity to negotiate the terms of the
release, the absence of this factor alone does
not create an issue of fact as to
voluntariness.”)
deciding the terms of the agreement and
whether the plaintiff was represented by or
consulted with an attorney. In Shain,
however, the court held that, although these
two factors weighed against validity, on
balance, the release was valid. 2006 U.S.
Dist. LEXIS 89056, at *11-14. In Shain, the
plaintiff was “told that the terms of the
release were non-negotiable” and “was not
represented by counsel, did not otherwise
consult with counsel, and was not
encouraged by the [employer] to do so.” Id.
at *12. Nonetheless, the plaintiff “was not
discouraged from seeking counsel, and
could have done so had she wished.” Id.
Furthermore, plaintiff could not “argue that
counsel was needed to enable her to
understand the straightforward language of
the release.” Id. This Court agrees with the
analysis in Shain and concludes that the
same result is warranted here. In the instant
action, plaintiff was not given an
opportunity to negotiate the terms of the
release, nor was she represented by counsel,
but she was encouraged by defendant to
consult an attorney regarding the proposed
Release Agreement. (Def.’s 56.1 ¶¶ 34-35.)
Notably, in Bormann, the Second Circuit
relied on an additional two factors in its
“totality of the circumstances” inquiry –
“whether [the] employer encourage[d] or
discourage[d] [the] employee to consult an
attorney” and “whether the employee had a
fair opportunity to do so.” 875 F.2d at 403.
In this case, both of these factors favor the
defendant. Although Neal was encouraged
to consult an attorney and had a fair
opportunity to do so, she chose not to
consult one. (Def.’s 56.1 ¶ 37.) Moreover,
she did not ask any questions about the
Release Agreement of a CAF representative.
(Id. ¶ 38.) Thus, although plaintiff had no
role in deciding the terms of the agreement
and was not represented by an attorney, she
was encouraged to consult an attorney and
had a fair opportunity to do so. Evaluating
Plaintiff
makes
three
additional
arguments concerning the validity of the
release, all of which the Court finds to be
unpersuasive. First, she contends that
Dorritie, the head of Human Resources, was
aware that plaintiff had brought an EEOC
charge at the time she made plaintiff’s
severance package, yet nothing in the
severance package or release referenced the
open EEOC charge. (Pl.’s 56.1 ¶¶ 28, 30.)
However, the EEOC takes the position that
releases and waivers of claims cannot
restrict an employee’s right to file a charge
with the EEOC or to take part in EEOC
proceedings. 14
Defendant,
therefore,
properly did not include any reference to
plaintiff’s pending EEOC charges in the
release. In any event, defendant does not
contend that plaintiff was barred from
proceeding with her EEOC charges – just
with the instant lawsuit. This argument,
14
See EEOC, Understanding Waivers of
Discrimination Claims in Employee Severance
Agreements,
available
at
http://www.eeoc.gov/policy/docs/qanda_severanceagreements.html#12. (“Although most signed
waivers are enforceable if they meet certain contract
principles and statutory requirements, an employer
cannot lawfully limit your right to testify, assist, or
participate in an investigation, hearing, or proceeding
conducted by the EEOC or prevent you from filing a
charge of discrimination with the agency.”).
12
therefore, has no bearing on the validity of
the release.
Accordingly, the uncontroverted facts
demonstrate that, under the totality of the
circumstances test, plaintiff signed the
Release Agreement with the Bank
voluntarily and knowingly, and therefore
released, inter alia, all of the claims she
asserts in this action. 16 In an abundance of
caution, however, the Court will address the
merits of Neal’s discrimination and
retaliation claims.
Second, plaintiff asserts that the
defendant initially rejected the agreement
because plaintiff failed to have a notary
provide a “raised seal” on the agreement.
(Pl.’s 56.1 ¶ 29.) If anything, this assertion
weighs in favor of validity because the
defendant was reluctant to accept a hastily
signed agreement that was improperly
notarized. Instead, the defendant insisted
that plaintiff take the time to properly
notarize the agreement.
B. Neal’s Title VII Claim of Racial
Discrimination
Plaintiff
asserts
that
she
was
discriminated against because she did not
receive appropriate training and coaching
and then received a Written Warning, and all
of plaintiff’s team, who were minorities,
were written up by their new supervisor.
Additionally, plaintiff asserts that Human
Resources failed to correct errors in
plaintiff’s work record concerning her use of
FMLA leave. Defendant argues that these
actions do not constitute adverse
employment actions. Defendant further
argues that it has articulated a legitimate
non-discriminatory reason for its actions
regarding the plaintiff, and plaintiff has
produced no evidence to show that the
Bank’s reasons for its actions were
pretextual. The Court concludes, for the
reasons set forth below, that no rational jury
Third, plaintiff argues that she signed the
release under duress because she needed the
severance payment. Plaintiff’s financial
condition is insufficient to constitute duress.
See Mazurkiewicz v. N.Y. City Health &
Hosps. Corp., 585 F. Supp. 2d 491, 500
(S.D.N.Y. 2008) (“[T]o make out a claim of
economic duress, a plaintiff must establish
that the agreement was obtained: (1) by
means of wrongful threat precluding the
exercise of free will; (2) under the press of
financial
circumstances;
(3)
where
circumstances
permitted
no
other
alternative. In other words, the duress (the
threat) must emanate from the party who is
attempting to obtain the agreement.”
(internal quotations and citations omitted)).
Here, plaintiff does not argue that
defendants made any wrongful threat
precluding the exercise of free will. 15 Thus,
the uncontroverted facts show that plaintiff
did not sign the release under duress.
16
“It is well settled that the totality-of-thecircumstances standard is stricter than ordinary
contract law principles for determining whether a
release is knowing and voluntary.” Cordoba v. Beau
Deitl & Assocs., 02 Civ. 4951 (MBM), 2003 U.S.
Dist. LEXIS 22033, at *20 (S.D.N.Y. Dec. 8, 2003)
(citing Bormann, 875 F.2d at 403)). Thus, since
Neal’s waiver of her Title VII claims was knowing
and voluntary under federal law under the totality-ofthe-circumstances test, for the reasons discussed
supra, it was knowing and voluntary under New
York law. Accordingly, liberally construing the
plaintiff’s complaint to raise both federal and state
discrimination and retaliation claims, the Court grants
summary judgment on the state law claims for all the
same reasons it is warranted on the federal claims.
15
Additionally, a release induced by duress “‘is
voidable,’ rather than void; therefore, ‘the person
claiming duress must act promptly to repudiate the
contract or release or he will be deemed to have
waived his right to do so.’” Nasik Breeding &
Research Farm Ltd. v. Merck & Co., 165 F. Supp. 2d
514, 527-28 (S.D.N.Y. 2001) (quoting VKK Corp. v.
NFL, 244 F.3d 114, 122 (2d Cir. 2001)). Plaintiff has
not repudiated the contract.
13
purpose of this step is “to force the
defendant to give an explanation for its
conduct, in order to prevent employers from
simply remaining silent while the plaintiff
founders on the difficulty of proving
discriminatory intent.” Fisher v. Vassar
College, 114 F.3d 1332, 1335-36 (2d Cir.
1997) (en banc) abrogated on other grounds
by Reves v. Sanderson Plumbing Products,
Inc., 530 U.S. 133, 120 S.Ct. 2097 (2000).
could find that any of these acts were
racially motivated.
1.
Applicable Law
Title VII prohibits discrimination of an
employee based on her race. See 42 U.S.C.
§ 2000e-2(a). Here, plaintiff claims she has
been discriminated against by defendant on
the basis of her race.
The “ultimate issue” in any employment
discrimination case is whether the plaintiff
has met his burden of proving that the
adverse employment decision was motivated
at least in part by an “impermissible reason,”
i.e., that there was discriminatory intent. See
Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 146 (2000); Fields v. N.Y.
State Office of Mental Retardation & Dev’l
Disabilities, 115 F.3d 116, 119 (2d Cir.
1997). In the absence of direct evidence of
discrimination, a plaintiff in an employment
discrimination case usually relies on the
three-step McDonnell Douglas test. First, a
plaintiff must establish a prima facie case of
unlawful discrimination by showing that (1)
he is a member of a protected class, (2) who
performed his job satisfactorily, (3) but
suffered an adverse employment action, (4)
under circumstances giving rise to an
inference of discrimination (or retaliation).
See McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 & n.13 (1973) (noting
that elements of prima facie case vary
depending on factual circumstances); see
also Stratton v. Dep’t for the Aging for the
City of New York, 132 F.3d 869, 879 (2d
Cir. 1997).
Third, if the employer articulates a
nondiscriminatory reason for its actions, the
presumption of discrimination is rebutted
and it “simply drops out of the picture.” St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,
510-11 (1993) (citation omitted); see James
v. N.Y. Racing Ass’n, 233 F.3d 149, 154 (2d
Cir. 2000). The burden then shifts back to
the plaintiff to show, without the benefit of
any presumptions, that more likely than not
the employer’s decision was motivated, at
least in part, by a discriminatory reason. See
Fields, 115 F.3d at 120-21; Connell v.
Consol. Edison Co., 109 F. Supp. 2d 202,
207 (S.D.N.Y. 2000).
To meet this burden, the plaintiff may
rely on evidence presented to establish his
prima facie case as well as additional
evidence. Such additional evidence may
include direct or circumstantial evidence of
discrimination. Desert Palace, Inc. v. Costa,
539 U.S. 90, 99-101 (2003). It is not
sufficient, however, for a plaintiff merely to
show that he satisfies “McDonnell
Douglas’s minimal requirements of a prima
facie case” and to put forward “evidence
from which a factfinder could find that the
employer’s explanation . . . was false.”
James, 233 F.3d at 157. Instead, the key is
whether there is sufficient evidence in the
record from which a reasonable trier of fact
could find in favor of plaintiff on the
ultimate issue, that is, whether the record
contains sufficient evidence to support an
Second, if the plaintiff establishes a
prima facie case, “a rebuttable presumption
of discrimination arises and the burden then
shifts to the defendant to articulate a
legitimate, nondiscriminatory reason for the
employment decision.” Stratton, 132 F.3d at
879; see Reeves, 530 U.S. at 142-43. The
14
inference of discrimination. See
Connell, 109 F. Supp. 2d at 207-08.
id.;
she contends was issued to her because of
her race. She claims that the members of her
team, all of whom were minorities, received
Written Warnings at the same time from
their new supervisor. As an initial matter,
plaintiff asserts that the Written Warning
was not warranted. However, although
plaintiff disputes a number of the findings
with respect to her underperformance and
attendance issues, there are several incidents
for which she has no explanation. For
example, the defendant explains that
plaintiff received a Written Warning
because she failed to meet the business
objectives standards at least 9 times in a
rolling 12-month period through October
2007. (Def.’s 56.1 ¶¶ 62, 64.) Specifically,
plaintiff failed to meet the Average Handle
Time objective in March, May, June,
September, and October 2007, the Offer
Rate objective in February and October
2007, and the Availability objective in June
and October 2007. (Id. ¶ 63.) Plaintiff
counters that: (1) some of the occurrences
happened during plaintiff’s transitional
phase of employment and “would not be
uncommon to receive”; (2) incoming call
flow could cause lower scores; (3) plaintiff
met her Availability objective in April 2007
and March 2007 and her Offer Rate
objective in March 2007; and (4) in October,
plaintiff was removed from her usual lines
of call queues and put on a slower line.
(Pl.’s 56.1 ¶¶ 38-40.) Even accepting
plaintiff’s explanations as true, she has not
contested the specific incidents defendant
points to. 18
As the Second Circuit observed in
James, “the way to tell whether a plaintiff’s
case is sufficient to sustain a verdict is to
analyze the particular evidence to determine
whether it reasonably supports an inference
of the facts plaintiff must prove –
particularly discrimination.” 233 F.3d at
157; see also Norton v. Sam’s Club, 145
F.3d 114, 118 (2d Cir. 1998) (“The thick
accretion of cases interpreting this burdenshifting framework should not obscure the
simple principle that lies at the core of antidiscrimination cases. In these, as in most
other cases, the plaintiff has the ultimate
burden of persuasion.”).
2.
Application
Assuming arguendo that plaintiff has
established a prima facie case of
discrimination, 17 the uncontroverted facts
demonstrate that defendant has articulated a
nondiscriminatory reason for its actions, and
plaintiff has failed to meet her burden to
produce evidence from which a rational jury
could find that more likely than not the
employer’s decision was motivated, at least
in part, by a discriminatory reason.
First, plaintiff alleges that she did not
receive appropriate training and coaching
and then received a Written Warning, which
17
Defendant argues that most, if not all, of the
actions about which plaintiff complains were not
adverse employment actions. (Def.’s Mem. of Law in
Support of Mot. for Summary Judgment (“Def.’s
Mot.”) at 18-20, Mar. 21, 2011, ECF No. 27.)
Because the uncontroverted evidence demonstrates
that defendant has articulated legitimate nondiscriminatory reasons for its actions and plaintiff has
failed to provide evidence from which a rational jury
could find that the employer’s decision was
motivated, at least in part, by a discriminatory reason,
the Court has not addressed whether the alleged acts
constitute adverse employment actions.
18
Plaintiff generally asserts that there were
“mistakes” throughout the monthly monitoring
system that had plaintiff “month after month not
meeting her goals when she actually met and
exceeded many.” (Pl.’s 56.1 ¶ 46.) Notwithstanding
this claim, which is unsupported by any additional
evidence, defendant does not argue that plaintiff
failed to meet or exceed many goals. Instead,
defendant points to specific instances of
15
Furthermore, plaintiff received the
Written
Warning
because
of
her
unscheduled absences and instances of
tardiness. A Written Warning is warranted if
a part-time employee has four unscheduled
absences during a twelve-month period.
(Def.’s 56.1 ¶ 67.) A Written Warning is
also warranted if a part-time employee has
six unscheduled late arrivals or early
departures during a twelve-month period.
(Id. ¶ 69.)
In any event, even assuming that
defendant’s investigation into plaintiff’s
underperformance
was
sloppy
or
incomplete, plaintiff has provided no
evidence that it was racially motivated. In
fact, it is uncontroverted that the whole CSR
team was not given warnings. The 17member CSR team hired in November 2006
was composed of four Asians, one
Hispanic/Latino, three Whites, seven
Black/African Americans, and two who did
not specify their race. By November 2007,
eleven members, including all three of the
White CSRs, were no longer in those
positions at the Bank. Of the six remaining
CSRs, only four received Written Warnings
in November 2007, two of whom were
Black, one was Hispanic/Latino, and one
was Asian. The two CSRs who did not
receive Written Warnings were Black and
Asian. Thus, non-Black CSRs received
Written Warnings, and one Black person did
not receive a Written Warning. Accordingly,
no rational jury could conclude, based on
this evidence, that defendant’s action in
giving plaintiff a Written Warning was
motivated by discriminatory animus.
Plaintiff had five instances of
unscheduled absences, covering eight days,
during 2007. (Id. ¶ 68.) Plaintiff asserts that
she disputed three of the absences: June 7-8,
2007 and October 1, 2007. (Pl.’s 56.1 ¶ 42.)
Plaintiff asserts that the June 7-8, 2007
absence was for a chronic condition. (Id.
¶ 43.) She further explains that the October
1, 2007 was approved under the FMLA, but
was “still used against the employee for
corrective action.” (Id.) With respect to
tardiness, plaintiff had eight instances of
unscheduled late arrivals and/or early
departures during 2007. (Def.’s 56.1 ¶ 70.)
Plaintiff asserts that her lateness on August
26, 2007 was due to the fact that “she had
just come back from vacation and had a
school project to complete,” and therefore
the supervisor should have permitted her to
sign for those hours as approved vacation
time. (Pl.’s 56.1 ¶ 44.) Plaintiff’s
explanation for her lateness does not change
the fact that she was late on that day. As for
the absences, even assuming, arguendo, that
defendant incorrectly counted the June 7-8,
2007 and October 1, 2007 absences as
unscheduled, the Written Warning would
still have been warranted for all of the other
performance and tardiness issues described
above.
Second, plaintiff asserts that Human
Resources failed to correct errors in
plaintiff’s work record concerning her use of
FMLA leave. 19 Plaintiff’s disagreements
19
Plaintiff argued that October 1, 2007 should have
been counted as a “scheduled” FMLA absence.
Defendant subsequently changed October 1, 2007 to
a scheduled FMLA absence, but plaintiff argues that
her Written Warning was not altered to reflect this
change. Defendant explains, however, that the Bank’s
Disability Management Services did not approve
October 1, 2007 for FMLA leave until November 9,
2007, one day after plaintiff was issued the
November 8, 2007 Written Warning. (Dorritie Reply
Decl. at ¶ 12.) Accordingly, the Written Warning
properly included October 1, 2007. Even excluding
October 1, 2007, though, plaintiff still had enough
unscheduled absences to warrant a warning. In any
event, once the approval for FMLA leave came
through, Dorritie made clear that October 1, 2007
was no longer included as an unscheduled absence.
underperformance and attendance issues that, under
the Bank’s policies, resulted in a Written Warning.
16
with the decision to deny her FMLA
application for the June 7 and June 8, 2007
absences, and to count certain disputed
instances in which she failed to meet her
performance objectives, do not provide an
inference of discriminatory animus or
pretext. 20
in two years; (3) providing her with
fraudulent pay statements in 2009; and (4)
making it difficult for her to take FMLA
leave. (Pl.’s Opposition (“Pl.’s Opp.”) at
¶¶ 6, 33, May 19, 2011, ECF No. 52.)
Defendant counters that (1) plaintiff has not
demonstrated that the actual decisionmakers knew that plaintiff had filed a charge
of discrimination with the EEOC, 21 and (2)
plaintiff has not demonstrated that the Bank
took those actions in retaliation for the
earlier filing of the EEOC charge. The Court
concludes, for the reasons set forth below,
that no rational jury could find that any of
the acts were retaliation for plaintiff filing
an EEOC complaint.
Thus,
the
uncontroverted
facts
demonstrate that defendant has articulated a
nondiscriminatory reason for its actions in
giving plaintiff a Written Warning and in its
handling of plaintiff’s contested FMLA
leave, and plaintiff has failed to meet her
burden to show, even construing the
evidence most favorably to plaintiff, that a
rational jury could find that more likely than
not the employer’s decision was motivated,
at least in part, by a discriminatory reason.
1. Legal Standard
Under Title VII, it is unlawful “for an
employer to discriminate against any of his
employees . . . because [the employee] has
opposed any practice made an unlawful
employment practice by [Title VII].” 42
U.S.C. § 2000e-3(a).
C. Neal’s Title VII Claim of Retaliation
Plaintiff argues that the Bank retaliated
against her after she filed an EEOC
discrimination charge on January 7, 2008
against the Bank by: (1) giving her a
negative performance evaluation and
denying her a salary increase in 2008; (2)
transferring her to five different supervisors
The Court evaluates a Title VII
retaliation claim under the three-step,
burden-shifting framework used for an
adverse employment claim, as established
by McDonnell Douglas Corporation v.
Green, 411 U.S. 792, 93 S. Ct. 1817, 36
L.Ed.2d 668 (1973). First, a plaintiff must
establish a prima facie case of retaliation by
demonstrating that “(1) the employee was
(Id.) Plaintiff further asserts that she advised Dorritie
that June 7, 2007 and June 8, 2007 were in dispute
and should have been approved as an FMLA absence.
Dorritie explains that these days were never approved
by Disability Management Services for FMLA leave
because the absences were not submitted by
plaintiff’s health care provider as a chronic condition.
(Id. ¶ 11.)
20
Plaintiff also alleges that she had five different
supervisors in less than two years, whereas no White
workers were moved around; that she did not receive
a raise; and that defendant falsified plaintiff’s payroll
to make plaintiff appear to earn a full-time wage. It
appears that these acts are alleged as acts of
retaliation (and addressed accordingly, infra), rather
than as acts of discrimination. Even assuming that
plaintiff is attempting to make them grounds for
discrimination, there is no evidence from which a
rational jury could conclude that any of these actions
were motivated by discriminatory animus.
21
Plaintiff states that she “spoke to at least one
supervisor that she recalls before the charge was
placed with EEOC,” (Pl.’s Opp. ¶ 34.), and defendant
has included a declaration from Dorritie in which she
admits that “Neal may have made a general statement
to me at some time that she was going to file a
charge.” (Dorritie Decl. ¶ 34.) Because the Court
holds that no rational jury could conclude that any of
the acts were retaliation for plaintiff filing an EEOC
complaint, the Court does not address the issue of
whether the actual decision-makers knew that
plaintiff had filed a charge of discrimination with the
EEOC.
17
CDC Ixis N. Am., Inc., 445 F.3d 161, 169
(2d Cir. 2006).
engaged in protected activity; (2) the
employer was aware of that activity; (3) the
employee suffered an adverse employment
action; and (4) there was a causal connection
between the protected activity and the
adverse employment action.” Gregory v.
Daly, 243 F.3d 687, 700 (2d Cir. 2001)
(quoting Reed v. A.W. Lawrence & Co., 95
F.3d 1170, 1178 (2d Cir. 1996)). The term
“protected activity” refers to action taken to
protest or oppose statutorily prohibited
discrimination. See 42 U.S.C. § 2000e-3;
see also Wimmer v. Suffolk County Police
Dep’t, 176 F.3d 125, 134-35 (2d Cir. 1999).
Informal as well as formal complaints
constitute protected activity. See Sumner v.
U.S. Postal Serv., 899 F.2d 203, 209 (2d Cir.
1990). Title VII protects not only those
employees who opposed employment
practices made unlawful by the statute but
also those who have “a good faith,
reasonable belief that the underlying
challenged actions of the employer violated
the law” even if those actions did not.
McMenemy v. City of Rochester, 241 F.3d
279, 283 (2d Cir. 2001) (quoting
Manoharan v. Columbia Univ. Coll. of
Physicians & Surgeons, 842 F.2d 590, 593
(2d Cir. 1988)). In determining whether a
plaintiff has satisfied this initial burden, the
court’s role in evaluating a summary
judgment request is “to determine only
whether proffered admissible evidence
would be sufficient to permit a rational
finder of fact to infer a retaliatory motive.”
Jute v. Hamilton Sundstrand Corp., 420
F.3d 166, 173 (2d Cir. 2005).
The Supreme Court has defined an
“adverse employment action” in the Title
VII retaliation context (distinct from and
broader than the standard in the Title VII
discrimination context) to mean an action
that is “materially adverse” and that “well
might have dissuaded a reasonable worker
from making or supporting a charge of
discrimination.” Burlington Northern and
Santa Fe Ry. Co. v. White, 548 U.S. 53, 68,
126 S.Ct. 2405 (2006) (internal citations
omitted). In particular, “the significance of
any given act of retaliation will often depend
upon the particular circumstances.” Id. at
69, 126 S.Ct. 2405.
Furthermore, under Richardson v. New
York State Department of Correctional
Service, 180 F.3d 426, 444 (2d Cir. 1999),
abrogated on other grounds by Burlington
Northern, 548 U.S. at 68, 126 S.Ct. 2405,
the Second Circuit held that “unchecked
retaliatory co-worker harassment, if
sufficiently severe, may constitute adverse
employment action so as to satisfy [that
prong] of the retaliation prima facie case.”
Id. at 446; see also McWhite v. N.Y. City
Hous. Auth., No. 05 Civ. 0991 (NG)(LB),
2008 WL 1699446, at *11 (E.D.N.Y. Apr.
10, 2008) (applying Richardson to a
retaliatory hostile work environment claim);
Brown v. N.Y. State Dep’t of Corr. Servs.,
583 F. Supp. 2d 404, 421-22 (W.D.N.Y.
2008) (denying summary judgment on Title
VII retaliation claim in part on plaintiff’s
coworkers’ alleged retaliatory acts and
citing Richardson); Nugent v. St.
Luke’s/Roosevelt Hosp. Ctr., No. 05 Civ.
5109 (JCF), 2007 WL 1149979, at *13 (Apr.
18, 2007) (considering a retaliatory hostile
work environment claim).
The burden then shifts to the defendant
to articulate a legitimate, non-discriminatory
reason for the employment action and if he
carries that burden, it shifts back to plaintiff
to demonstrate by competent evidence that
the reasons proffered by defendant were
pretext for retaliatory animus based upon the
protected Title VII activity. See Sista v.
Regarding the causal connection prong
of the retaliation inquiry, a plaintiff may
18
However, because the Second Circuit has
found periods well beyond two months to be
sufficient to suggest a causal relationship
under certain circumstances, courts must
carefully consider the time lapse in light of
the entire record. See, e.g., Grant v.
Bethlehem Steel Corp., 622 F.2d 43, 45-46
(2d Cir. 1980) (holding eight-month gap
between EEOC complaint and retaliatory
action suggested a causal relationship); see
also Richardson, 180 F.3d at 446-47
(holding abusive acts within one month of
receipt of deposition notices may be
retaliation for initiation of lawsuit more than
one year earlier).
establish a causal connection between the
protected activity and the adverse
employment action either through direct
evidence of retaliatory animus, or by
circumstantial evidence. See Sumner v. U.S.
Postal Service, 899 F.2d 203, 209 (2d Cir.
1990) (holding that causal connection may
be
“established
indirectly
with
circumstantial evidence, for example, by
showing that the protected activity was
followed by discriminatory treatment or
through evidence of disparate treatment of
employees who engaged in similar conduct
or directly through evidence of retaliatory
animus”). Where there is no evidence of
retaliatory animus or a showing of disparate
treatment of fellow employees who engaged
in the same conduct, proof of causation may
be shown indirectly, by demonstrating that
the protected activity was followed closely
by retaliatory action. Gordon v. N.Y. City
Bd. of Educ., 232 F.3d 111, 117 (2d Cir.
2000); Cifra v. Gen. Elec. Co., 252 F.3d
205, 217 (2d Cir. 2001) (“[T]he causal
connection needed for proof of a retaliation
claim ‘can be established indirectly by
showing that the protected activity was
closely followed in time by the adverse
action.’”) (quoting Reed v. A.W. Lawrence
& Co., 95 F.3d 1170, 1178 (2d Cir. 1996)
(internal citation omitted)). Although the
Second Circuit “has not drawn a bright line
to define the outer limits beyond which a
temporal relationship is too attenuated to
establish a causal relationship between the
exercise of a federal constitutional right and
an allegedly retaliatory action[,]” GormanBakos v. Cornell Co-op. Extension, 252 F.3d
545, 554 (2d Cir. 2001), some district courts
have generally concluded that “a passage of
two months between the protected activity
and the adverse employment action seems to
be the dividing line.” Cunningham v.
Consol. Edison, Inc., No. 03 Civ.
3522(CPS), 2006 WL 842914, at *19
(E.D.N.Y. Mar. 28, 2006) (collecting cases).
2. Application
Plaintiff alleges, first, that the Bank
retaliated against her after she filed her
January 2008 EEOC charge by giving her a
negative performance evaluation and
denying her a salary increase in 2008.
Specifically, plaintiff contends that she had
just been assigned to a White supervisor
who was “unjustly allowed to make the
decision as to whether or not a raise was
earned.” (Pl.’s Opp. ¶ 35.) It is
uncontroverted, however, that the salary
increase recommendation and decision cycle
was essentially completed prior to the end of
2007 – before plaintiff filed her EEOC
charge. 22 The only steps that remained were
the Board of Directors’ approval of
compensation increases on a line of business
and firm-wide basis, and communication of
the salary decisions to employees. (Def.’s
Reply Mem. of Law at 7-8, July 22, 2011,
22
Plaintiff states, “it had already been decided on or
before January 25, 2008” by Dorritie and Mounsey
that plaintiff was not entitled to a merit increase.
(Pl.’s Opp. at ¶ 29.) Thus, it does not appear that
plaintiff is contesting defendant’s statement that the
decision about the salary increase was made prior to
plaintiff’s filing of the EEOC charge on January 7,
2008. In any event, even if plaintiff is disputing that
fact, she has produced no evidence to contradict it.
19
respect to
retaliatory.
ECF No. 39.) Furthermore, defendant
explains that “it is not unusual for some
employees
to
receive
a
‘Meets
[Expectations]’ rating, but not receive any
salary increase.” (Dorritie Decl. at ¶ 36.)
Thus, no rational jury could conclude that
this failure to give plaintiff a salary increase
was retaliatory.
the
pay
statements
were
Finally, plaintiff alleges that defendant
retaliated against her by making it difficult
for her to take FMLA leave. (Pl.’s Opp. at
¶ 33.) However, defendant has provided a
detailed explanation, discussed supra n.19,
for its actions with respect to the FMLA
leave, which plaintiff has failed to
controvert. Thus, no rational jury could
conclude that defendant’s actions with
respect to the FMLA leave were retaliatory.
Second, plaintiff alleges that she was
transferred to five different supervisors in
two years as retaliation for filing the charge.
As a threshold matter, the defendant has
provided a detailed explanation for the
changes
in
plaintiff’s
supervision.
Specifically, the changes in supervision
were the result of reorganizing, downsizing,
and frequent leaves of absence by several of
plaintiff’s managers. (See supra Section I.E
for additional detail.) Additionally, one of
the reasons plaintiff was moved to a new
supervisor was that Neal had complained
that she did not have any supervisors present
during her late and early evening work
hours, so CAF reassigned plaintiff to a team
on which the supervisor worked a later
schedule. (Def.’s 56.1 ¶ 107.) Plaintiff has
offered no evidence to the contrary.
Accordingly, no rational jury could conclude
that plaintiff’s complaints about her
reassignment to a different team, and the
number of supervisors she had, were
motivated by retaliatory animus.
Accordingly, even construing the
evidence most favorably to the plaintiff and
drawing all inferences in her favor, no
rational jury could conclude that any of
these acts were retaliation for plaintiff filing
an EEOC complaint.
Third, plaintiff alleges that defendant
retaliated against her by providing her with
fraudulent pay statements in 2009. However,
defendant has explained that the errors in the
pay statements were inadvertent and likely
due to a “system disruption,” and, in any
event, were essentially harmless, since
plaintiff was paid the correct amount and her
correct compensation was reported to tax
authorities. (Hartmann Reply Decl. ¶¶ 6-7.)
Thus, no rational jury could conclude that
plaintiff has provided sufficient evidence to
demonstrate that defendant’s actions with
20
V. CONCLUSION
For the reasons set forth above,
defendant’s motion for summary judgment
is granted on all claims. Specifically, the
uncontroverted facts demonstrate that, under
the totality of the circumstances test,
plaintiff signed the Release Agreement with
the Bank voluntarily and knowingly, and
therefore released, inter alia, all of the
claims she asserts in this action. In an
abundance of caution, however, the Court
has analyzed the merits of the plaintiff’s
claims and concludes that, construing the
evidence most favorably to the plaintiff and
drawing all inferences in her favor, no
rational jury could find that any of these acts
were motivated by discriminatory animus or
were retaliation for plaintiff filing an EEOC
complaint. The Clerk of the Court shall enter
judgment accordingly and close this case.
SO ORDERED.
_________________
JOSEPH F. BIANCO
United States District Judge
Dated: August 8, 2012
Central Islip, NY
***
Plaintiff is proceeding pro se, 99-15 196th
Street, Hollis, NY 11423. Defendant is
represented by Frederic L. Lieberman, JP
Morgan
Chase
Legal
Compliance
Department, One Chase Manhattan Plaza,
26th Floor, New York, NY 10081.
21
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