Bentivegna v. People's United Bank et al
MEMORANDUM OF DECISION & ORDER - For the above stated reasons, the Plaintiff's 84 motion for reconsideration is granted in part and denied in part. It is granted to the extent that the Court finds that questions of fact exist as to whether the Defendants can be held liable under a theory of retaliation for searching the Plaintiff's emails and commencing litigation against her. It is denied to the extent that the Court does not depart from its previous findings as to the other alleged materially adverse employment actions. The parties are directed to file a revised Joint Pretrial Order within ten days of the entry of this decision, and are further directed to appear before the Court on October 18, 2017 at 9:00 a.m. in Courtroom 1020 of the Long Island Courthouse. Counsel is to appear authorized to discuss settlement at that time. In the event that the matter is not settled, it will be adjourned for jury selection. SEE ATTACHED DECISION for details. So Ordered by Judge Arthur D. Spatt on 9/25/2017. (Coleman, Laurie)
2:45 pm, Sep 25, 2017
U.S. DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
DECISION & ORDER
-againstPEOPLE’S UNITED BANK, PEOPLE’S
UNITED INSURANCE AGENCY, INC., DAN
CASEY, LOUISE SANDBERG, JOHN
Leeds Brown Law P.C.
Attorneys for the Plaintiff
1 Old Country Road
Carle Place, NY 11514
Rick Ostrove, Esq.,
Andrew George Costello, Esq., Of Counsel
Jackson Lewis, P.C.
Attorneys for the Defendants
58 South Service Road
Melville, NY 11747
Ana Shields, Esq.,
Mark S. Mancher, Esq.,
Mordy Yankovich, Esq., Of Counsel
SPATT, District Judge:
The Plaintiff Joanne Bentivegna (the “Plaintiff”) brought this employment discrimination
action against the Defendants People’s United Bank (“PUB”), People’s United Insurance Agency,
Inc. (“PUIA”, and with PUB, “People’s United”)), Dan Casey (“Casey”), Louise Sandberg
(“Sandberg”), and John Barnes (“Barnes”) (collectively, the “Defendants”), alleging that they
discriminated against her based on her gender in violation of, among other statutes, Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. (“Title VII”).
In a memorandum of decision and order dated August, 7, 2017 (ECF No. 82), the Court
partially granted the Defendants’ motion for summary judgment pursuant to Federal Rule of Civil
Procedure (“FED. R. CIV. P.” or “Rule”) 56 and dismissed the following claims: the Plaintiff’s
wage discrimination claims brought pursuant to Title VII, New York State Human Rights Law,
N.Y. Exec. Law § 296 (the “NYSHRL”), and the Equal Pay Act, 29 U.S.C. §206(d), et seq. (the
“EPA”); the Plaintiff’s New York Labor Law (the “NYLL”) wage claim; her breach of contract
claim; and her unjust enrichment claim.
Conversely, the Court found that the following claims should be presented to a jury: the
Plaintiff’s hostile work environment claims brought pursuant to Title VII and the NYSHRL; the
Plaintiff’s termination discrimination claims brought pursuant to Title VII and the NYSHRL; and
the Plaintiff’s retaliation claims brought pursuant to Title VII and the NYSHRL.
Presently before the Court is a motion by the Plaintiff for reconsideration pursuant to Local
Civil Rule 6.3 and Rule 54(b), asking the Court to reconsider which of the Defendants’ alleged
retaliatory acts can be presented to the jury. For the following reasons, the Plaintiff’s motion is
granted in part and denied in part.
A. The Relevant Legal Standard
Local Civil Rule 6.3 provides that:
Unless otherwise provided by the Court or by statute or rule (such as FED. R. CIV.
P. 50, 52, and 59), a notice of motion for reconsideration or reargument of a court
order determining a motion shall be served within fourteen (14) days after the entry
of the Court’s determination of the original motion, or in the case of a court order
resulting in a judgment, within fourteen (14) days after the entry of the judgment.
There shall be served with the notice of motion a memorandum setting forth
concisely the matters or controlling decisions which counsel believes the Court has
overlooked. The time periods for the service of answering and reply memoranda, if
any, shall be governed by Local Civil Rule 6.1(a) or (b), as in the case of the original
motion. No oral argument shall be heard unless the Court directs that the matter
shall be reargued orally. No affidavits shall be filed by any party unless directed by
Id. “The standard for granting such a motion is strict, and reconsideration will generally be denied
unless the moving party can point to controlling decisions or data that the court overlooked—
matters, in other words, that might reasonably be expected to alter the conclusion reached by the
court.” Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995). The decision to grant or
deny a motion for reconsideration is “committed to the sound discretion of the district court.”
Wilder v. News Corp., 2016 WL 5231819, at *3 (S.D.N.Y. Sept. 21, 2016) (quoting Liberty Media
Corp. v. Vivendi Universal, S.A., 861 F. Supp. 2d 262, 265 (S.D.N.Y. 2012) (internal quotation
marks omitted)); see also Shrader, 70 F.3d at 257 (using an abuse of discretion standard to judge
a district court’s decision on a motion for reconsideration).
“[A] party may not advance new facts, issues[,] or arguments not previously presented to
the Court on a motion for reconsideration.” Steinberg v. Elkman, 2016 WL 1604764, at *1
(S.D.N.Y. Apr. 6, 2016) (internal quotation marks omitted) (quoting Nat'l Union Fire Ins. Co. of
Pittsburgh v. Stroh Cos., 265 F.3d 97, 115 (2d Cir. 2001)). Nevertheless, reconsideration may be
granted because of “an intervening change of controlling law, the availability of new evidence, or
the need to correct a clear error or prevent manifest injustice.” Luv n’ Care Ltd. v. Goldberg
Cohen, LLP, 2016 WL 6820745, at *1 (S.D.N.Y. Nov. 10, 2016) (internal quotation marks
omitted) (quoting Hollander v. Members of the Bd. of Regents, 524 F. App’x 727, 729 (2d Cir.
2013) (summary order)); accord Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245,
1255 (2d Cir. 1992) (citations omitted).
B. Application to the Facts
The Plaintiff argues that there are two bases for her motion: 1) that the Court erred in
applying the incorrect standard for the Plaintiff’s retaliation claims, specifically, as to whether
certain actions taken against her were “materially adverse;” and 2) the Court overlooked binding
precedent that states that employers can be held liable under a theory of retaliation for actions
taken against a former employee after that employee’s termination.
1. As to the Retaliation Standard Employed by the Court
In Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d
345 (2006), the Supreme Court clarified a plaintiff’s burden in demonstrating whether an
employment action was materially adverse. The Court held that “a plaintiff must show that a
reasonable employee would have found the challenged action materially adverse, which in this
context means it well might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. at 68, 126 S. Ct. at 2415 (internal citations and quotation marks
omitted); ); see also Kessler v. Westchester Cty. Dep’t of Soc. Servs., 461 F.3d 199, 207 (2d
Cir.2006) (noting that Burlington Northern announced a different standard of material adversity
than that previously employed in this Circuit in, for example, Williams v. R.H. Donnelley, Corp.,
368 F.3d 123, 128 (2d Cir. 2004)). However, the Supreme Court reiterated that “those petty slights
or minor annoyances that often take place at work and that all employees experience” are not
materially adverse. Id. at 68, 126 S. Ct. at 2415.
This Court classified the Plaintiff’s burden on the issue in this way:
not every slight from an employer is actionable under Title VII. To be “materially
adverse,” a plaintiff’s working conditions must undergo a change “more disruptive
than a mere inconvenience or an alteration in job responsibilities.” Galabya v.
N.Y.C. Bd. of Educ., 202 F.3d 636, 640 (2d Cir. 2000). “While adverse employment
actions extend beyond readily quantifiable losses, not everything that makes an
employee unhappy is an actionable adverse action.” Pimentel v. City of N.Y., No.
00 Civ. 326, 2002 WL 977535, at *3 (S.D.N.Y. May 14, 2002) (internal citations
and quotation marks omitted).
ECF No. 82 at 40, Bentivegna v. People’s United Bank, No. 214CV599ADSGRB, 2017 WL
3394601, at *21 (E.D.N.Y. Aug. 7, 2017).
The Court finds that the Plaintiff has advanced a legitimate ground for reconsideration, in
that the Court committed clear error by overlooking binding precedent on the issue of whether an
employment action is materially adverse for the purposes of a retaliation analysis. Accordingly,
the Court will reconsider which of the Defendants’ alleged retaliatory acts can form the basis for
retaliation claims under Title VII and the NYSHRL.
In its original decision, the Court found that the following employment actions did not
constitute materially adverse employment actions: transferring the Plaintiff’s leadership of a sales
team to a different area, which was a voluntary position that did not affect her pay; not bringing
the Plaintiff to an internal networking meeting; not receiving adequate marketing representative
support; and searching the Plaintiff’s emails.
On reconsideration, the Court sees no reason to depart from its previous findings, except
for the search of the Plaintiff’s emails. The Court now finds that such a search “might have
dissuaded a reasonable worker from making or supporting a charge of discrimination,” Burlington
N., 548 U.S. at 68, 126 S. Ct. at 2415, and was therefore a materially adverse employment action.
In the Court’s view, the other acts would not have had such an effect on a reasonable worker.
As to the final element of the prima facie case of retaliation, the Court already found that
there was sufficient temporal proximity to establish causation.
Finally, the Court finds that the Plaintiff met her burden on the last stage of the McDonnell
Douglas burden shifting framework. On the issue of the Plaintiff’s emails, the Court previously
the impetus for the search of the emails reveals further questions of fact and
credibility. Although Tengel testified that it was routine to search emails for
employees who were departing, the Plaintiff had not given any notice that she was
leaving. Tengel had also referenced a “litigation situation” with the Chief
Information Security Officer. However, the only litigation situation at the time was
the Plaintiff’s discrimination action. While it may also be true that PUIA was
considering litigation against the Plaintiff for her alleged theft of corporate
knowledge, a reasonable juror could conclude that Tengel was referring to the
discrimination “litigation situation.” To that end, Michael Collier, the Chief
Operating Officer at PUIA, testified that he was tasked with reviewing the
Plaintiff’s emails, and that he had never been previously asked to perform such a
ECF No. 82 at 45, Bentivegna, 2017 WL 3394601, at *24. Therefore, the Court finds that the
Plaintiff has met her burden in demonstrating that retaliation “was at least one of the motivating
factors,” Holcomb v. Iona Coll., 521 F.3d 130,138 (2d Cir. 2008) (internal citations and quotation
marks omitted), in the Defendants’ decision to search her emails.
Accordingly, the Plaintiff’s motion for reconsideration is granted to the extent that the
Court will allow a jury to consider whether the Defendants should be held liable under a theory of
retaliation for their search of the Plaintiff’s emails. The Plaintiff’s motion for reconsideration is
denied to the extent that the Court does not depart from its earlier holding that the following
employment actions were not materially adverse: transferring the Plaintiff’s leadership of a sales
team to a different area; not bringing the Plaintiff to an internal networking meeting; and not
receiving adequate marketing representative support.
2. As to the Alleged Post-Termination Retaliation
As to the Plaintiff’s allegations of post-termination retaliation, the Court held in its original
decision that “the actions taken by the Defendants after the Plaintiff was terminated are not adverse
employment actions, because the Plaintiff was no longer employed at People’s United.” Decision
at 41, Bentivegna, 2017 WL 3394601, at *21. The Plaintiff points to numerous Second Circuit
cases which stand for the proposition that retaliation claims can be based on post-termination
employment actions. (See Pl.’s Mem. of Law in Supp. of Mot. for Recons. (“Pl.’s Mem. of Law”)
at 5 (citing Wanamaker v. Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997) (“[P]laintiffs
may be able to state a claim for retaliation, even though they are no longer employed by the
defendant company . . . .”); Silver v. Mohasco Corp., 602 F.2d 1083, 1090 (2d Cir. 1979)
(“Charges of post-employment blacklisting fall within the broad remedial scope of Title VII.”
(internal citation omitted), rev’d on other grounds, 447 U.S. 807 (1980); Pantchenko v. C.B. Dolge
Co., Inc., 581 F.2d 1052, 1054-55 (2d Cir. 1978) (finding that where employer refused to write
post-employment letters to prospective employers, a plaintiff could maintain a cause of action for
retaliation). The Defendants do not dispute that these cases are still binding precedent. Therefore,
as the Court overlooked these binding precedents and committed clear error, the Court finds that
the Plaintiff has again advanced a proper basis for reconsideration. Accordingly, the Court will
consider whether a question of fact remains as to whether the Defendants’ lawsuit against the
Plaintiff constituted retaliation.
Turning to the McDonnell Douglas burden-shifting framework, the Court previously found
that the Plaintiff established that she engaged in protected activities, and that the Defendants knew
of those protected activities. The Court must now consider, for the first time, whether the
Defendants’ lawsuit against the Plaintiff “might have dissuaded a reasonable worker from making
or supporting a charge of discrimination.” Burlington N., 548 U.S. at 68, 126 S. Ct. at 2415. The
Court answers this question in the affirmative. Indeed, the mere threat of a lawsuit often provokes
individuals to change their actions. As the Plaintiff points out, prospective defendants are faced
with the daunting tasks of hiring attorneys and possibly paying settlements or judgments. If a
reasonable worker believed that he or she might face a lawsuit if they filed a complaint alleging
discrimination, they might be dissuaded from filing such a complaint. Marchiano v. Berlamino,
No. 10 CIV. 7819 LBS, 2012 WL 4215767, at *5 (S.D.N.Y. Sept. 20, 2012) (“Suing an employee
is an act that might well dissuade a reasonable worker from filing discrimination charges.”).
On the final element of the prima facie case, the Court also finds that there is evidence of
retaliatory animus on the Defendants’ part. The Court bases this finding largely on an email from
the CEO of People’s United Bank, Jack Barnes (“Barnes”). On August 1, 2013, after a search of
the Plaintiff’s emails revealed that she was, inter alia, sending client information to her personal
email to restart her business elsewhere, Barnes wrote:
As long as we do not let too much time go by before we fire her for  her actions
as I know them and file claims for the cost we have incurred defending her charges.
I want to be very, very aggressive in this situation. She has cost us a lot of
management time and expense and we need to be compensated. She and her
accompli[c]es have stolen or attempted to steal corporate assets. Let[’s] discuss
after the next interview but she should be out the door tomorrow based on what I
know now. Jack
(Joint SMF ¶ 161). There is a question of fact as to what Barnes meant here. One reasonable
interpretation is that Barnes wanted to aggressively pursue litigation against the Plaintiff in
retaliation for her complaints of discrimination.
Therefore, even though the Defendants have offered a legitimate, non-retaliatory
explanation for the lawsuit—that the Plaintiff attempted to steal purported corporate assets—the
Court finds that there is a question of fact as to whether the lawsuit was motivated by retaliatory
animus. See, e.g., Spencer v. Int’l Shoppes, Inc., No. 06CV2637 JS MLO, 2010 WL 1270173, at
*12 (E.D.N.Y. Mar. 29, 2010) (“Even if the litigation is not frivolous, it still may be considered
retaliatory if motivated, even partially, by a retaliatory animus.” (citing Gordon v. New York City
Bd. of Educ., 232 F.3d 111, 117 (2d Cir. 2000) (“Title VII ‘is violated when a retaliatory motive
plays a part in adverse employment actions . . . whether or not it was the sole cause.”))).
Accordingly, the Plaintiff’s motion for reconsideration is granted on her retaliation claim related
to the Defendants’ lawsuit, and the Defendants’ motion for summary judgment on that claim is
For the above stated reasons, the Plaintiff’s motion for reconsideration is granted in part
and denied in part. It is granted to the extent that the Court finds that questions of fact exist as to
whether the Defendants can be held liable under a theory of retaliation for searching the Plaintiff’s
emails and commencing litigation against her. It is denied to the extent that the Court does not
depart from its previous findings as to the other alleged materially adverse employment actions.
The parties are directed to file a revised Joint Pretrial Order within ten days of the entry of
this decision, and are further directed to appear before the Court on October 18, 2017 at 9:00 a.m.
in Courtroom 1020 of the Long Island Courthouse. Counsel is to appear authorized to discuss
settlement at that time. In the event that the matter is not settled, it will be adjourned for jury
It is SO ORDERED:
Dated: Central Islip, New York
September 25, 2017
___/s/ Arthur D. Spatt___
ARTHUR D. SPATT
United States District Judge
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