Zielinski v. New York Community Bank Corp., Inc. et al

Filing 24

MEMORANDUM OF DECISION AND ORDER, Case Associated - It is hereby, ORDERED, that the Defendants motion to consolidate Case Numbers 12CV2285 (the Garnett-Bishop Action); 13CV1018 (the Warshun Action); 13CV1049 (the Cappello Action); 13CV1161 (the Coop er Jones Action); and 13CV2228 (the Zielinski Action) is granted; and it is further ORDERED, that the Clerk of the Court is directed to (1) consolidate the five actions set forth above under Case Number 12CV2285 and (2) close Case Numbers 13CV1018, 1 3CV1049, 13CV1161 and 13CV2228; and it is further ORDERED, that the consolidated action shall hereinafter be referred to as Garnett Bishop, et al. v. New York Community Bancorp, Inc., et al. and shall proceed under Case Number 12-CV2285. All filings are to be made only under Case Number 12CV2285; and it is further ORDERED, that the claims of the Plaintiff Diann Titus are severed from the consolidated action. The parties are directed to file a stipulation of dismissal without prejudice of Titus s claims within one week of the date of this Order. Further, Titus is directed, within fourteen days from the submission of the stipulation of dismissal without prejudice, to file and serve a separate complaint in a separate action asserting her own individual claims against the appropriate defendants; and it is further ORDERED, that the Plaintiffs are directed to file a Consolidated Complaint incorporating the claims of the remaining twenty-six Plaintiffs. The Consolidated Complaint shall not assert new allegations against the Defendants; and it is further ORDERED, that all remaining motions pending in any of the five actions, including the Defendants motions to dismiss and the Cooper Jones Plaintiffs motion seeking leave to amend their Complaint, are dismissed without prejudice and with leave to renew after the Plaintiffs file the Consolidated Complaint. So Ordered by Judge Arthur D. Spatt on 1/8/2014. (Coleman, Laurie)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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NATALIE GARNETT-BISHOP,
Plaintiff,

FILED 
CLERK 

1/8/2014 5:03 pm

U.S. DISTRICT COURT 
EASTERN DISTRICT OF NEW YORK 
LONG ISLAND OFFICE 

MEMORANDUM OF
DECISION AND ORDER

-against12–CV–2285 (ADS)(ARL)
NEW YORK COMMUNITY BANCORP, INC., and
NEW YORK COMMUNITY BANK,
Defendants.
---------------------------------------------------------X
KATHLEEN WARSHUN and LYNETTE TIGER,
Plaintiff,
-against-

13–CV–1018 (ADS)(GRB)

NEW YORK COMMUNITY BANCORP, INC., and
NEW YORK COMMUNITY BANK,
Defendants.
---------------------------------------------------------X
DONNA CAPPELLO, DONNA BERCHIOLLI,
SHANNON BYRNES, THERESA FALCO, LESLIE
MORENCY, MARIE ALEXANDER, KATIA PAGE,
CELESTE MCCORMACK, AUDREY ZUCKERMAN,
MONICA ORTEGA, GELSOMINA TIERNO,
JAQUELINE RAMOS, NANSI GHOBRIAL, MARY
ELLEN CASSIDY, CANDICE PETRANCOSTA and
ADDOLORATA QUILES,
Plaintiffs,
-againstNEW YORK COMMUNITY BANCORP, INC., NEW
YORK COMMUNITY BANK, JOSEPH FICALORA,
ROBERT WANN, WILLIAM DISALVATORE,
CYNTHIA FLYNN
Defendants.
---------------------------------------------------------X

13–CV–1049 (ADS)(ARL)

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DEE COOPER JONES, DIANN TITUS, CLAIRE
BYRNES, ILENE BRANFMAN, GERALDINE
COLLINS, HELEN ARNIOTES and GINA
DECRESCENZO,
Plaintiffs,
-against-

13–CV–1161 (ADS)(GRB)

NEW YORK COMMUNITY BANCORP, INC., NEW
YORK COMMUNITY BANK, JOSEPH FICALORA,
ROBERT WANN, WILLIAM DISALVATORE and
CYNTHIA FLYNN
Defendants.
---------------------------------------------------------X
SAMANTHA ZIELINSKI,
Plaintiff,
-against-

13–CV–2228 (ADS)(ARL)

NEW YORK COMMUNITY BANCORP, INC., NEW
YORK COMMUNITY BANK, JOSEPH FICALORA,
ROBERT WANN, WILLIAM DISALVATORE,
CYNTHIA FLYNN
Defendants.
---------------------------------------------------------X
APPEARANCES:
Willoughby & Giordano
Attorney for the Plaintiffs Natalie Garnett-Bishop, Kathleen Warshun and Lynette Tiger
245 Hillside Avenue
Williston Park, New York 11596
By: Ann Willoughby, Esq., Of Counsel
Patrick W. Johnson, Esq.
Attorneys for the Plaintiffs Donna Cappello, Donna Berchiolli, Shannon Byrnes, Theresa Falco,
Leslie Morency, Marie Alexander, Katia Page, Celeste McCormack, Audrey Zuckerman, Moncia
Ortega, Gelsomina Tierno, Jacqueline Ramos, Nansi Ghorbrial, Mary Ellen Cassidy, Candice
Petrancosta, Addolorata Quiles and Samantha Zielenski
9118 Third Avenue
Brooklyn, NY 11209
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Theodore Pavlounis, Esq., P.C.
Attorneys for the Plaintiffs Dee Cooper Jones, Diann Titus, Claire Byrnes, Ilene Branfman,
Geraldine Collins, Helen Arniotes, Gina Descrescenzo, Linda Smith, Ann Abbruzzese, Maryann
Golinello and Jillian Triano
7706 13th Avenue
Brooklyn, New York 11228
By: Andrew G. Sfouggatakis, Esq., Of Counsel
Little Mendelson P.C.
Attorneys for the Defendants New York Community Bancorp, Inc., New York Community Bank
Corp., Inc., New York Community Bank, Joseph Ficalora, Robert Wann, William Disalvatore
and Cynthia Flynn
290 Broadhollow Road, Suite 305
Melville, NY 11747
By: Amy Laura Ventry-Kagan, Esq.
James P. Smith, Esq.
Robert M. Wolff, Esq., Of Counsel
SPATT, District Judge:
Five separate actions have been brought against the Defendants New York Community
Bancorp, Inc., New York Community Bank Corp., Inc., New York Community Bank (“NYCB”),
Joseph Ficalora (“Ficalora”), Robert Wann (“Wann”), William Disalvatore (“Disalvatore”)
and/or Cynthia Flynn (“Flynn,” and collectively, the “Defendants”) arising from a reduction in
force that occurred on October 13, 2011.
In this regard, on October 13, 2011, NYCB terminated the employment of more than 400
branch employees working in its New York and New Jersey retail banking operations. Twentysix of the twenty-seven Plaintiffs in the above-captioned actions represent some of these
terminated employees. They claim, among other things, that the Defendants action in
terminating them was the result of employment discrimination based on age, race, national
origin, gender and/or disability and retaliation in violation of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e, et seq. (“Title VII”); the Age Discrimination in Employment Act, 29
U.S.C. § 621, et seq. (the “ADEA”); the Genetic Information Nondiscrimination Act, 42 U.S.C.
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§ 2000ff, et seq. (the “GINA”); the American With Disabilities Act, 42 U.S.C. § 12101, et seq.
(the “ADA”); § 102 of the Civil Rights Act of 1991, 42 U.S.C. 1981a; and the laws of the state
of New York. The Plaintiffs also bring a claim pursuant to the Worker Adjustment and
Retraining Notification Act, 42 USC § 12101, et seq. (the “WARN Act”).
The Defendants now move in Case No. 12–CV–2285 (the “Garnett-Bishop Action”), via
three separate motions, to consolidate these five actions pursuant to Federal Rules of Civil
Procedure (“Fed. R. Civ. P.”) 42. These motions have been served on all Plaintiffs and is
unopposed.
Also pending are (1) the Defendants’ motion to dismiss in Case No. 13–CV–1049 (the
“Cappello Action”), as well as the Defendants’ motion to strike certain exhibits attached to the
Cappello Plaintiffs’ opposition to the Defendants’ motion to dismiss; (2) the Defendants’ motion
to dismiss in Case No. 13–CV–1161 (the “Cooper Jones Action”); (3) the Defendants’
unopposed motion to sever the claims of Diann Titus (“Titus”) in the Cooper Jones Action; (4)
the Defendants’ motion to strike the Amended Complaint in the Cooper Jones Action, as well as
the Cooper Jones Plaintiffs’ cross-motion seeking leave to amend the Complaint; and (5) the
Defendants’ motion to dismiss in Case No. 13–CV–2228 (the “Zielinski Action”), as well as the
Defendants’ motion to strike certain exhibits attached to the Zielinski Plaintiffs’ opposition to the
Defendants’ motion to dismiss.
In addition, in Case No. 13–CV–1018 (the “Warshun Action”), this Court previously
issued an order, dated August 1, 2013, (1) granting the Warshun Plaintiffs’ motion to amend the
complaint to the extent the Warshun Plaintiffs sought to raise a claim of disability discrimination
under the ADA against the corporate Defendants; (2) denying the balance of the Warshun
Plaintiffs’ motion to amend the complaint as futile; (3) granting the Defendants’ motion to

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dismiss the Warshun Plaintiffs’ complaint against the individual Defendants Ficalora, Wann,
Disalvatore and Flynn with prejudice, except for the claim brought pursuant to the New York
State Human Rights Law, New York State Executive Law § 290, et seq. (the “NYSHRL”),
which was dismissed without prejudice; and (4) granting the Defendants’ motion to dismiss the
Warshun Plaintiffs’ reverse racial discrimination claim against the corporate Defendants with
prejudice.
As an initial matter, the Court grants the Defendants’ unopposed motion to sever the
Plaintiff Titus’s claims from the Cooper Jones Action, as Titus was terminated in May 2012,
seven months after the mass layoff that occurred on October 13, 2011 and under different factual
circumstances than the other Cooper Jones Plaintiffs. In this regard, the parties are directed to
file a stipulation of dismissal without prejudice of Titus’s claims within one week of the date of
this Order. Further, within fourteen days from the parties’ submission of the stipulation of
dismissal without prejudice, Titus is directed to file and serve a separate complaint in a separate
action asserting her own individual claims against the appropriate defendants.
As to the remaining motions before the Court, the Court grants the Defendants’
unopposed motion to consolidate the Garnett-Bishop, Cappello, Cooper Jones, Zielinski and
Warshun Actions, but declines to consider the other motions pending in these cases. Rather,
notwithstanding the Court’s decision in the Warshun Action, the Court directs counsel for the
Plaintiffs to file and serve a Consolidated Complaint within thirty days of the date of this Order.
The Defendants’ motions to dismiss the Cappello, Cooper Jones and Zielinski Actions are denied
without prejudice and with leave to renew after the Plaintiffs file and serve a Consolidated
Complaint. The Cooper Jones Plaintiffs motion seeking leave to file an amended complaint is

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also denied without prejudice and with leave to renew after the Plaintiffs file and serve the
Consolidated Complaint.
I. BACKGROUND
A. Underlying Facts
Collectively, excluding the Plaintiff Diann Titus, the five actions before the Court involve
a total of twenty-six Plaintiffs, all of whom are former NYCB employees. NYCB is a banking
institution incorporated under the laws of the state of New York and governed by the federal
banking laws of the United States. NYCB is a subsidiary of New York Community Bancorp,
Inc., also referred to as New York Community Bank Corp., Inc. Ficalora was the President and
Chief Executive Officer (“CEO”) of NYCB; Wann was the Chief Operating Officer (“COO”) of
NYCB; DiSalvatore was a Director and assistant to the COO of NYCB; Flynn was a Chief
Administrative Officer (“CAO”) of NYCB. At all relevant times, NYCB had more than 1,000
employees.
According to the Plaintiffs, in June 2011, the Defendants NYCB, Ficalora and Wann held
a meeting with all NYCB bank managers in which they stated that NYCB was profitable and,
thus, there would be no layoffs. Moreover, Ficalora apparently promised that NYCB would
never terminate its employees while he was CEO and while NYCB was profitable.
Nevertheless, on October 13, 2011, although it was allegedly profitable, NYCB
terminated approximately 400 or more employees. The terminated employees were advised that
they could not return to the branch where they had worked but had to “make arrangements” to
have their personal belongings returned to them. They also received a termination letter stating
that NYCB, after reviewing its staffing needs, had decided to eliminate their positions.

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Allegedly, the terminated employees were not told at any time prior to October 13, 2011 that a
significant number of employee positions would be eliminated.
Further, in response to inquiries concerning the terminations, NYCB’s human resources
department advised that the terminations were objectively based upon factors including recent
disciplinary history, recent performance evaluations, branch audits and special skills. However,
the Plaintiffs contend that they did not have any recent disciplinary warnings and that their recent
performance evaluations were neither poor nor unsatisfactory. They further contend that their
performance ratings were lowered because branch management had been instructed by senior
management of NYCB to lower the performance ratings of their staff, so that an employee who
had, for example, previously received a rating of “far exceeds” had to instead receive a lower
rating of “exceeds.”
According to the Plaintiffs, those selected to be laid-off were pre-chosen to be
terminated, despite any representations by the Defendants to the contrary. In this regard, the
Plaintiffs claim that the Defendants decided to terminate employees who were disproportionately
Caucasian or African American females, had disabilities and were over the age of forty.
Additionally, some Plaintiffs assert that the termination of their employment was an act of
retaliation by the Defendants.
Following the October 13, 2011 reduction-in-force, the Plaintiffs claim that NYCB
transferred younger, less-experienced employees and hired new, part-time and lower-paid
employees who also were younger in order to replace those employees that they had laid off. In
this regard, the Plaintiffs allege that NYCB offered and continues to offer its current employees
incentives to actively recruit new hires for various positions that had been previously held by the
terminated employees and have also included job postings for these positions online and in

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newspapers. Many of the Plaintiffs have also been encouraged to reapply to current NYCB
openings, but even though they have reapplied, they have not been rehired by NYCB.
B. The Defendants’ Motion to Consolidate
On April 29, 2013, the Defendants filed a motion in the Garnett-Bishop Action to
consolidate the Warshun Action and the Cappello Action with the Garnett-Bishop Action
pursuant to Fed. R. Civ. P. 42(a)(2). Thereafter, on June 11, 2013, the Defendants filed a second
motion in the Garnett-Bishop Action to consolidate the Zielinski Action with the Garnett-Bishop
Action. Finally, on June 18, 2013, the Defendants filed a third motion in the Garnett-Bishop
Action to consolidate the Cooper Jones Action with the Garnett-Bishop Action. In all three
motions, the Defendants argue that these cases should be consolidated because they involve
common questions of law or fact. To date, none of the Plaintiffs have opposed the Defendants’
motions.
II. DISCUSSION
A. As to Whether the Plaintiffs’ Actions Should be Consolidated
Fed. R. Civ. P. 42(a) governs the consolidation of actions. Under the Rule,
[i]f actions before the court involve a common question of law or
fact, the court may:
(1) join for hearing or trial any or all matters at issue in the
actions;
(2) consolidate the actions; or
(3) issue any other orders to avoid unnecessary cost or
delay.
Therefore, as long as there will be a fair and impartial trial, “Rule 42(a) . . . empowers a trial
judge to consolidate actions for trial when there are common questions of law or fact to avoid
unnecessary costs or delay.” Johnson v. Celotex Corp., 899 F.2d 1281, 1284 (2d Cir. 1990), cert.
denied, 498 U.S. 920, 111 S. Ct. 297, 112 L. Ed. 2d 250 (1990). Further, any “[d]ifferences in
causes of action [or] defendants . . . do not render consolidation inappropriate” where (1) “the
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cases present sufficiently common questions of fact and law,” and (2) the Court finds that “the
differences do not outweigh the interests of judicial economy served by consolidation.” Kaplan
v. Gelfond, 240 F.R.D. 88, 91 (S.D.N.Y. 2007). See also LeGrand v. New York City Transit
Auth., No. 93–CV–0333 (JG), 1999 WL 342286, at *8 (E.D.N.Y. May 26, 1999).
“The trial court has broad discretion to determine whether consolidation is appropriate.”
Id. However, the Second Circuit suggests that Rule 42(a) “be prudently employed as a valuable
and important tool of judicial administration, invoked to expedite trial and eliminate unnecessary
repetition and confusion.” Devlin v. Transp. Commc’n Int'l Union, 175 F.3d 121, 130 (2d Cir.
1999) (internal quotation marks and citations omitted). In addition, the Second Circuit has
explained that while “a district court should consider both equity and judicial economy” in
assessing whether consolidation is appropriate, “efficiency cannot be permitted to prevail at the
expense of justice” and, thus, “consolidation should be considered when savings of expense and
gains of efficiency can be accomplished without sacrifice of justice.” Id. (emphasis in original)
(internal quotation marks and citations omitted). See also Consorti v. Armstrong World Ind., 72
F.3d 1003, 1006 (2d Cir. 1995), vacated on other grounds, 518 U.S. 1031, 116 S. Ct. 2576, 135
L. Ed. 2d 1091 (1996); Endress v. Gentiva Health Servs., 278 F.R.D. 78 (E.D.N.Y. 2011).
In this regard, “courts must consider ‘whether the specific risks of prejudice and possible
confusion are overborne by the risk of inconsistent adjudications of common factual and legal
issues, the burden on parties, witnesses, and available judicial resources posed by multiple
lawsuits, the length of time required to conclude multiple suits as against a single one, and the
relative expense to all concerned of the single-trial, multiple-trial alternatives.’” Augustin v.
Jablonsky, 99–CV–3126 (DRH)(ARL), 2001 WL 770839, at *15 (E.D.N.Y. Mar. 8, 2001), rev’d
and remanded on other grounds, 461 F.3d 219 (2d Cir. 2006) (quoting Johnson, 899 F.2d at

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1285). The “risk of confusion or prejudice [is] avoided in [a] consolidated action where [a]
district court use[s] ‘intelligent management devices’ such as thought verdict forms and
cautionary and limiting instructions.” Id. at *16 (quoting Consorti v. Armstrong World Indus.,
Inc., 72 F.3d 1003, 1008 (2d Cir. 1995), vacated on other grounds sub nom. Consorti v. OwensCorning Fiberglas Corp., 518 U.S. 1031, 135 L. Ed. 2d 1091, 116 S. Ct. 2576 (1996)). Of
importance, consolidation does not generally prejudice a parties rights, because it “‘does not
merge the suits into a single cause, or change the rights of the parties, or make those who are
parties in one suit parties in another.’” Primavera Familienstiftung v. Askin, 173 F.R.D. 115,
130 (S.D.N.Y. 1997) (quoting Johnson v. Manhattan Ry. Co., 289 U.S. 479, 496–97, 77 L. Ed.
1331, 53 S. Ct. 721 (1933)).
“The party moving for consolidation bears the burden of showing the commonality of
factual and legal issues in the actions it seeks to consolidate.” Augustin v. Jablonsky, 99–CV–
3126 (DRH)(ARL), 2001 WL 770839, at *15 (E.D.N.Y. Mar. 8, 2001), rev’d and remanded on
other grounds, 461 F.3d 219 (2d Cir. 2006); Endress v. Gentiva Health Servs., 278 F.R.D. 78
(E.D.N.Y. 2011). Having reviewed the Defendants’ moving papers, as well as the Plaintiffs’
separate Complaints, the Court finds that the Defendants have met this burden and that
consolidation is appropriate here. The Plaintiffs all bring employment discrimination lawsuits as
employees who were terminated as part of NYCB’s October 13, 2011 reduction in force and
raise almost identical claims against nearly identical Defendants. In this way, all five cases
involve the same set of facts with respect to process by which the Defendants decided which
employees were to be terminated as part of the reduction in force.
As such, as these cases involve almost identical questions of law and fact as well as
almost identical parties and without opposition by the Plaintiffs, it appears that consolidation will

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economize both judicial resources and the resources of the parties. See Fed.R.Civ. P. 42(a);
Johnson, 899 F.2d at 1285; Augustin, 2001 WL 770839, at *15; Guidelines For The Division Of
Business Among District Judges, Eastern District of New York, Rule 50.3.1 (a) (“A civil case is
‘related’ to another civil case for purposes of this guideline when, because of the similarity of
facts and legal issues or because the cases arise from the same transaction or events, a substantial
saving of judicial resources is likely to result as long as there will be a fair and impartial trial,
from assigning both cases to the same judge”).
Accordingly, the Plaintiffs’ five actions which are now pending before this Court are
consolidated for all purposes as “Garnett-Bishop, et al. v. New York Community Bancorp., Inc.,
et al.” under Case Number 12–CV–2285, and the Cappello, Cooper Jones, Zielinski and
Warshun Actions are closed.
B. As to the Individual Defendants and the Motions to Dismiss
As stated above, the Defendants have motions to dismiss pending in the Cappello,
Cooper Jones and Zielinski Actions, as well as associated motions to strike. In addition, in the
Plaintiffs in the Cooper Jones Action had cross-moved for leave to amend their Complaint.
However, in light of the Court’s decision to consolidate the above-captioned actions, the Court
declines to consider these remaining motions at this time. Rather, the Plaintiffs are directed to
file and serve a Consolidated Complaint within thirty days of the date of this order. The
Defendants’ motions to dismiss are denied without prejudice and with leave to renew after the
Plaintiffs file and serve the Consolidated Complaint. Similarly, the Cooper Jones Plaintiffs’
motion seeking leave to amend their Complaint is also denied without prejudice and with leave
to renew after the filing and serving of the Consolidated Complaint.

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III. CONCLUSION
For the foregoing reasons, it is hereby,
ORDERED, that the Defendants’ motion to consolidate Case Numbers 12–CV–2285
(the Garnett-Bishop Action); 13–CV–1018 (the Warshun Action); 13–CV–1049 (the Cappello
Action); 13–CV–1161 (the Cooper Jones Action); and 13–CV–2228 (the Zielinski Action) is
granted; and it is further
ORDERED, that the Clerk of the Court is directed to (1) consolidate the five actions set
forth above under Case Number 12–CV–2285 and (2) close Case Numbers 13–CV–1018, 13–
CV–1049, 13–CV–1161 and 13–CV–2228; and it is further
ORDERED, that the consolidated action shall hereinafter be referred to as “Garnett
Bishop, et al. v. New York Community Bancorp, Inc., et al.” and shall proceed under Case
Number 12-CV–2285. All filings are to be made only under Case Number 12–CV–2285; and it
is further
ORDERED, that the claims of the Plaintiff Diann Titus are severed from the
consolidated action. The parties are directed to file a stipulation of dismissal without prejudice
of Titus’s claims within one week of the date of this Order. Further, Titus is directed, within
fourteen days from the submission of the stipulation of dismissal without prejudice, to file and
serve a separate complaint in a separate action asserting her own individual claims against the
appropriate defendants; and it is further
ORDERED, that the Plaintiffs are directed to file a Consolidated Complaint
incorporating the claims of the remaining twenty-six Plaintiffs. The Consolidated Complaint
shall not assert new allegations against the Defendants; and it is further

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ORDERED, that all remaining motions pending in any of the five actions, including the
Defendants’ motions to dismiss and the Cooper Jones Plaintiffs motion seeking leave to amend
their Complaint, are dismissed without prejudice and with leave to renew after the Plaintiffs file
the Consolidated Complaint.
SO ORDERED.
Dated: Central Islip, New York
January 8, 2014
_____/s/ Arthur D. Spatt_____
ARTHUR D. SPATT
United States District Judge

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