Barbini et al v. First Niagara Bank, N.A. et al

Filing 150

OPINION & ORDER re: 139 MOTION for Summary Judgment . filed by Robert McMichael, Key Bank N.A., Irina Damyanidu. For the foregoing reasons, Defendants' motion for summary judgment is GRANTED in part, DENIED in part. Defendan ts' motion is GRANTED as to (1) Barbini's claims for discrimination based on gender under Title VII and the NYSHRL; (2) Barbini's claim for discrimination based on age under the ADEA and the NYSHRL; (3) Barbini's retaliation cl aims for opposing age discrimination under the ADEA and the NYSHRL; and (4) Barbini's hostile work environment claims under the ADEA and the NYSHRL. Defendants' motion is DENIED as to (1) Henry's claims for discrimination based on gender under Title VII and the NYSHRL; and (2) Plaintiffs' claims for retaliation for opposing sexual harassment under Title VII and the NYSHRL. The parties are directed to appear for a telephonic pre-trial conference on March 4, 2022, at 2: 00 p.m. To access the telephonic pre-trial conference, please follow these instructions: (1) Dial the meeting number: [phone]; (2) enter the Access Code: 1231334#; (3) press pound (#) to enter the conference as a guest. The Clerk of Court is directed to terminate the motion at ECF No. 139. ( Telephone Conference set for 3/4/2022 at 02:00 PM before Judge Nelson Stephen Roman.) (Signed by Judge Nelson Stephen Roman on 1/14/2022) (ate)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
CLAUDIA BARBINI and MARYETTA HENRY,

01/14/2022

Plaintiffs,
-againstFIRST NIAGARA BANK N.A., KEYBANK N.A.,
as successor in interest to FIRST NIAGARA BANK,
N.A., IRINA DAMYAUNIDU, in her official and
individual capacities, ROBERT MCMICHAEL, in
his official and individual capacities, and HUGH
LAWLESS, in his official and individual capacities,

No. 16 Civ. 7887 (NSR)
OPINION & ORDER

Defendants.
NELSON S. ROMÁN, United States District Judge:
Plaintiffs Claudia Barbini and Maryetta Henry (collectively, “Plaintiffs”) commenced this
action against their former employer, KeyBank N.A., successor by merger to First Niagara Bank
N.A. (the “Bank”), and former co-workers Irina Damyanidu, Robert McMichael, and Hugh
Lawless (collectively, “Defendants”), alleging claims of discrimination, hostile work environment,
and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. § 2000e et
seq., the Age Discrimination in Employment Act of 1967 (“ADEA”), 29 U.S.C. § 603(a) et. seq., and
New York Executive Law § 296 et seq. (hereinafter, “New York State Human Rights Law” or
“NYSHRL”). Defendants moved for summary judgment against all of Plaintiffs’ claims
(“Motion,” ECF No. 139). For the following reasons, the Court GRANTS IN PART, DENIES IN
PART Defendants’ motion.
BACKGROUND
The facts herein are drawn from Defendants’ Statement of Undisputed Material Facts
Pursuant to Local Rule 56.1 (“Defs.’ SUMF”, ECF No. 141), Plaintiffs’ Counterstatement of

Disputed Material Facts Pursuant to Local Rule 56.1 (“Pls.’ CSUMF”, ECF No. 144), the parties’
declarations, exhibits, and affidavits, and are undisputed except as indicated.
I.

Factual Background
A.

Undisputed Facts Concerning the Parties.

Plaintiffs worked together at the Bank’s branch located in Vassar, New York. 1 Barbini also
worked at one of the Bank’s smaller branches located in Pleasant Valley, New York. 2 Both
branches were jointly managed by the same branch manager. 3 Barbini worked at the Bank and its
predecessor entities, Marine Midland and HSBC, for 27 years from July 5, 1988 until her
termination on September 9, 2015. 4 At the time of her termination, Barbini was sixty-six years old
and held the position of Assistant Branch Manager. 5 Henry joined the Bank in 2013 as a Teller. 6
The Bank later promoted Henry on 2014 to Senior Teller, the same position she held until her
termination on September 9, 2015. 7 Plaintiffs were both notaries licensed in the State of New York
and performed notarial services for the Bank’s customers. 8
In December 2014, the Bank promoted Defendant Damyanidu to the position of Area
Manager, in which she was responsible for overseeing fifteen of the Bank’s branches, including
the Vassar and Pleasant Valley branches where Plaintiffs worked. 9 Sometime between January
1

(Defs.’ SUMF ¶ 1; Pls.’ CSUMF ¶ 1.)

2

(Defs.’ SUMF ¶ 2; Pls.’ CSUMF ¶ 2.)

3

(Defs.’ SUMF ¶ 3; Pls.’ CSUMF ¶ 3.)

4

(Defs.’ SUMF ¶ 1; Pls.’ CSUMF ¶ 1.)

5

(Defs.’ SUMF ¶ 4; Pls.’ CSUMF ¶¶ 4, 153.)

6

(Defs.’ SUMF ¶ 5; Pls.’ CSUMF ¶ 5).

7

(Defs.’ SUMF ¶ 5; Pls.’ CSUMF ¶ 5.)

8

(Defs.’ SUMF ¶ 6; Pls.’ CSUMF ¶ 6.)

9

(Barbini Aff. ¶ 9, ECF No. 145-1; Defs.’ SUMF ¶ 7.)

2

and March 2015, Plaintiffs’ Branch Manager—Diana Stile—left her position and Defendant
Lawless was hired as an Assistant Branch Manager. 10 In the months that followed, between April
and May 2015, Damyanidu made Barbini the Acting Branch Manager of the Vassar and Pleasant
Valley branches until she promoted Lawless to Branch Manager. 11
B.

Disputed Facts Concerning the Customer Complaint Against Barbini.

Damyanidu avers that she received a customer complaint against Barbini in June 2015. 12
The complaint related that in December 2014, Barbini tried to convince a customer and her
husband to submit a home equity application and that she asked them to provide their driver’s
licenses numbers so that she could update their information on the Bank’s system. 13 The customer
reported that she and her husband provided Barbini with their driver license numbers, but that they
left understanding that Barbini would not process the home equity application after they informed
her that they were not interested. 14 The customer later learned that her home had undergone a
drive-by appraisal, which indicated that Barbini had submitted the home equity application without

10
The record is unclear as to when these events occurred, and the parties fail to provide conclusive evidence
of the same. For example, Defendants contradict themselves first by claiming that Lawless was hired in March 2015,
but then later claim that when Stile left in January 2015, Lawless was already an Assistant Branch Manager with
Barbini. (Compare Defs.’ SUMF ¶ 9 with id. ¶10.) On the other hand, Plaintiffs claim Stile left in March 2015 after
Lawless was hired that same month. (See Pls.’ CSUMF ¶ 9.)

The record is also unclear as to when these events occurred, and the parties fail to provide conclusive
evidence of the same. For example, Plaintiffs first claim that Lawless was promoted in April, but then they contradict
themselves later by claiming it occurred in May. (Compare Barbini Dep. Tr. at 78:21–79:12, ECF No. 145-5 with Pls.’
CSUMF ¶ 9; see also Am. Compl. ¶ 36, ECF No. 26 (In March 2015, . . . DAMYANIDU, hired a new Assistant
Branch Manager, Hugh LAWLESS, to work at the Pleasant Valley and Vassar Branches. Defendant LAWLESS was
promoted to Branch Manager of the Pleasant Valley and Vassar Branches by the end of the month.”).) On the other
hand, Defendants claim that Lawless was promoted about three to four months after he was initially hired. (See
Damyanidu Dep. Tr. at 11:22–12:12 (Aug. 13, 2019), ECF No. 145-7; Lawless Dep. Tr. at 46:5–10, ECF No. 145-9)
11

12

(Damyanidu Aff. ¶ 4, ECF No. 142-1.)

13

(Id.)

14

(Id.)

3

the customer’s approval. 15 The customer also later learned, around May 2015, that Barbini had
failed to update the driver’s license numbers on the Bank’s system. 16 The customer subsequently
complained to Damyanidu about Barbini’s conduct and the customer severed her relationship with
the Bank. 17
Upon receiving the customer complaint, Damyanidu discussed it with Human Resources
(“HR”), who in turn directed her to discuss it with Barbini. 18 Damyanidu met with Barbini, notified
her of the complaint, and reminded her that she must obtain customer approval prior to submitting
a home equity application. 19 Damyanidu also reinforced that Barbini violated the Bank’s
procedures and that she could be subject to discipline, although Damyanidu declined to do so. 20
Barbini denies that the alleged customer complaint ever occurred. 21 She indicates that
Lawless testified that it was he who received the customer complaint. 22 Barbini does not dispute
that Damyanidu met with her regarding the alleged customer complaint, although she states that
Damyanidu and Lawless met with her on July 30, 2015, not June. 23 Barbini also claims that at the
meeting, Damyanidu could not provide the name of the alleged complaining customer despite
purportedly speaking with her over the phone for forty-five minutes immediately prior. 24 Barbini
15

(Id.)

16

(Id.)

17

(Id. ¶¶ 4–5.)

18

(Id. ¶ 5.)

19

(Id. ¶¶ 4–5.)

20

(Id.)

21

(Barbini Aff. ¶¶ 34–35.)

22

(Id. ¶¶ 42; Lawless Dep. Tr. at 203:1–15.)

23

(Barbini Dep. Tr. at 96:3–98:6.)

24

(Id.)

4

avers that after Lawless told her the name of the alleged complaining customer the next morning,
she told him her side of the story: she withdrew the application after several phone conversations
with the customer and that the customer “was not upset with [her].” 25 Barbini further claims that
another employee—Jennifer Torner—corroborated that she had the customer’s consent to submit
the home equity application, contrary to what Lawless and Damyanidu assert. 26
C.

Disputed Facts Concerning Henry’s Inappropriate and Unprofessional Behavior.

Damyanidu testified that during a visit to the Vassar Branch in the summer of 2015, she
noticed Henry making inappropriate hand gestures following a staff meeting led by Lawless. 27
Damyanidu shared her observation and concern with Lawless and asked him about Henry’s job
performance. 28 Damyanidu claims Lawless told her that there had been instances in which Henry
(Barbini Dep. Tr. at 110:8–111:21.) In their CSUMF, Plaintiffs claim Barbini testified that she spoke with
the customer the day after Lawless and Damyanidu reprimanded her (July 31, 2015) and that the customer told her
that she was not upset with her. (See Pls.’ CSUMF ¶ 18.) However, the Court is of the view that Barbini’s deposition
testimony is unclear as to when Barbini purportedly learned that the customer was not upset with her:
25

A. And I told [Lawless] my side of the story. Husband and wife were at my desk, and we had a very
nice conversation. And she confided in me that she had to help her son and gave him money. As
she heard my situation with my son, and told her I used my home equity and suggest the same for
this --- for her. And she was on board. The husband was hesitating, but she proceeded to give me
the information. The customer received the first mailing, and she called me and told me that the
husband did not want the line on the house. I tried to explain what the line was and was happy to
see her credit score so high. The problem was solved, but they did not want to pay the annual fee.
I called again and offered to waive it, but she said no. At that point, I withdrew the application.
Q. We’ll move on to Page 6 of Exhibit 6. This is a continuation of your entry for July 30th, 2015,
correct?
A. Yes.
Q. Continue.
A. I spoke with the customer after that, and she was not upset with me. I searched the customer
profile and I did not lure the customer from the drive-up. They had a problem with the account
and I opened a new checking account that day.
(Barbini Dep. Tr. at 110:20– 111:25 (emphasis added). See also Barbini Aff. ¶ 41 (“Prior to withdrawing the
application, I spoke to . . . the wife, and she confirmed to me that she was not upset with me and that I had their
consent to submit the loan. (emphasis added).)
26

(Barbini Dep. Tr. at 111:19–112:7.)

27

(Damyanidu Dep. Tr. at 102:15–103:21; 105:5–13 (April 25,2018), ECF No. 145-6.)

28

(Id. at 103:4–21.)

5

had behaved unprofessionally, for which Damyanidu suggested they should speak with Henry
about her behavior. 29 Although the next step in the Bank’s standard process for addressing such
behavior was to draft a warning for HR’s review, at no point did Damyanidu or Lawless discipline
Henry. 30
Henry denies ever acting improperly or unprofessionally towards Lawless. 31 She does not
dispute that neither Damyanidu nor Lawless ever disciplined her for any alleged improper or
unprofessional behavior. 32
D.

Undisputed Facts Concerning Lawless’s Improper Texts to Henry.

On Friday, August 14, 2015, Lawless sent Henry and another employee, Nazibe Kaba,
three text messages that were supposedly intended for his wife. 33 The first text message contained
a link to an adult website, kink.com (the “Website”). The two texts that followed included a
password and username for the Website. 34 Kaba swiftly responded with texts to Lawless that (i)
asked what the Website was and (ii) noted that the Bank restricted her from accessing it. 35 Lawless,
who had been on route to the Vassar Branch, claims to have immediately realized that he had

29

(Id.)

30

(Id. at 102:15–103:25; 104:16–105:4.)

31

(Henry Aff. ¶ 44, ECF No. 145-1.)

32

(Pls.’ CSUMF ¶ 31.)

33

(Defs.’ SUMF ¶ 33; Pls.’ CSUMF ¶ 33.)

34

(Defs.’ SUMF ¶ 34; Pls.’ CSUMF ¶ 34.)

35

(Defs.’ SUMF ¶ 35; Pls.’ CSUMF ¶ 35.)

6

mistakenly sent the text messages to Kaba and Henry instead of to his wife, and quickly responded,
“Delete that.” 36 At no point did Henry access the Website. 37
E.

Disputed Facts Concerning the Events Subsequent to the Improper Texts.

Lawless testified that upon arriving at the Vassar Branch a short while later, he approached
Kaba and Henry, who were standing next to each other, and asked them again to delete the text
messages. 38 While Kaba responded that she did delete the texts, Henry said that she would not. 39
Lawless responded that he was embarrassed and that he did not intend the text messages for Henry
and Kaba. 40 He told Kaba to ask Henry to delete the text message, and then left the Vassar Branch
to call Damyanidu to notify her of what had occurred. 41 He claims that Damyanidu told him things
would have to run their course and that he should go back inside and finish the day, which he did. 42
Henry testified that when Lawless “barged” into the Vassar Branch, he only approached
her because Kaba was out on her lunch break. 43 Lawless demanded she give him her phone, delete
the texts he sent, and show him that she deleted them, which she refused. 44 Henry testified that

36

(Defs.’ SUMF ¶ 36; Pls.’ CSUMF ¶ 36.)

37

(Defs.’ SUMF ¶ 37; Pls.’ CSUMF ¶ 37.)

38

(Lawless Dep. Tr. at 63:2–64:10.)

39

(Id. at 64:11–24.)

40

(Id. at 64:6–8.)

41

(Id. at 64:25–65:10.)

42

(Id. at 72:22–72:5.)

43

(Henry Dep. Tr. at 37:19–38:9, ECF No. 145-4.)

44

(Id. at 38:18–39:8.)

7

Lawless said he was embarrassed and that he did not mean the texts to go to her. 45 Lawless wanted
to speak with her alone but she refused to do so. 46
F.

Undisputed Facts Concerning Henry’s Call to the Ethics Hotline & Investigation.

By the time Lawless returned to the Vassar Branch after his call with Damyanidu, Henry
had already told Barbini about the incident with Lawless and his requests that she delete the text
messages. 47 Barbini advised Henry to call the Bank’s Ethics Hotline to report the incident, which
she did that same day. 48
The following Monday, on August 17, 2015, the Bank’s HR Director, Defendant
McMichael, sent Damyanidu an email notifying her of Henry’s call to the Hotline. 49 Shortly after
Damyanidu arrived at the Vassar Branch, she met with Henry to discuss the incident with
Lawless. 50 At Henry’s request, Barbini was present for the meeting with Damyanidu. 51 Henry
described the incident to Damyanidu, who assured her that the Bank took the situation very
seriously and would investigate the issue and take appropriate action. 52 Damyanidu further advised
that, in the event that Henry felt uncomfortable to continue working at the Vassar Branch, the Bank
could arrange for her to work at its nearby Pleasant Valley Branch. 53

45

(Id. at 39:9–22.)

46

(Id.)

47

(Defs.’ SUMF ¶ 44; Pls.’ CSUMF ¶ 44.)

48

(Defs.’ SUMF ¶ 45; Pls.’ CSUMF ¶ 45.)

49

(Defs.’ SUMF ¶ 47; Pls.’ CSUMF ¶ 47.)

50

(Defs.’ SUMF ¶ 48; Pls.’ CSUMF ¶ 48.)

51

(Defs.’ SUMF ¶ 49; Pls.’ CSUMF ¶ 49.)

52

(Defs.’ SUMF ¶ 50; Pls.’ CSUMF ¶ 50.)

53

(Defs.’ SUMF ¶ 51; Pls.’ CSUMF ¶ 51.)

8

McMichael promptly arranged to meet with and interview Henry over the phone the
following day, Tuesday, August 18, 2015, regarding the incident. 54 Barbini accompanied Henry
to the meeting with McMichael. 55 Henry described the entire incident to McMichael and told him
about other aspects of Lawless’s behavior as a manager. 56 She told him Lawless behaved
inappropriately as a “closed doors manager” and was not very communicative with the staff. 57
Henry told McMichael that she was “no longer comfortable with how [her] manager looks at [her]
knowing that he views porn.” 58 McMichael concluded the interview telling Henry that he would
continue his investigation and encouraged her to contact him in the event she recalled anything
else she forgot to mention. 59
The following day, Henry sent McMichael an email saying that she had “never experienced
such tension between teammates as there ha[d] been since [Lawless] came on board” because
Lawless compared employees based on performance by complementing some employees in view
of others. 60
After concluding his investigation, McMichael relayed the information to Damyanidu and
Lura Bechtel, the Bank’s in-house counsel, to discuss the Bank’s next steps. 61 Damyanidu advised
McMichael of her view that the Bank should terminate Lawless for his conduct because she felt it

54

(Defs.’ SUMF ¶ 53; Pls.’ CSUMF ¶ 53.)

55

(Defs.’ SUMF ¶ 54; Pls.’ CSUMF ¶ 54.)

56

(Henry Dep. Tr. at 67:14–68:69:5; McMichael Dep. Tr. at 47:2–9, ECF No. 145-8.)

57

(Henry Dep. Tr. at 67:14–68:69:5; McMichael Dep. Tr. at 47:2–9.)

58

(Henry Dep. Tr. at 71:23–72:11.)

59

(Id. at 72:19–72:23.)

60

(Id. at 74:2–75:1.)

61

(McMichael Dep. Tr. at 49:16–50:10.)

9

was “very inappropriate what he did.” 62 She also mentioned that Lawless “was not conducting
himself appropriately as manager” because he was not greeting customers, kept behind closed
doors, and was not functioning appropriately as a branch manager. 63 But after further discussion,
the three-person team concluded that McMichael should only issue Lawless a final warning. 64
They rested their decision on Lawless being new to the Bank, the investigation revealing that the
text messages were accidental and non-intentional, and Henry confirming there was no other
related behavior in the past. 65 On August 20, 2015, Damyanidu and McMichael issued the written
final warning to Lawless. 66
G.

Undisputed Facts Concerning the Bank’s Notary Policy.

To ensure the validity and enforceability of loan documents, the Bank insists that its
officers and employees adhere to and comply with not only the New York Notary Public License
Law, but also the Bank’s Notary Policy, which provided, inter alia, that “[t]he person requesting
the notary service must be physically present in front of you and sign the document prior to
applying the notary stamp to the document.” 67
H.

Disputed Facts Concerning the Bank’s Notary Policy.

Defendants claim that the Bank published its Notary Policy via (i) its intranet website,
which included a link to the New York Notary Public License Law; and (ii) a link in a weekly

62

(Damyanidu Dep. Tr. at 73:22–74:11, 76:6–19 (April 25, 2018); McMichael Dep. Tr. at 46:11–25.)

63

(McMichael Dep. Tr. at 46:11–25.)

64

(Id. at 50:25–51:5.)

65

(Id. at 51:6–52:8.)

66

(Defs.’ SUMF ¶ 66; Pls.’ CSUMF ¶ 66.)

67

(Defs.’ SUMF ¶ 68; Pls.’ CSUMF ¶ 68.)

10

circular. 68 They also claim that any violation of the Bank’s Notary Policy typically resulted in the
termination of the offending employee, although there is no explicit policy providing the same. 69
Plaintiffs dispute that the Notary Policy was readily available in the intranet website, as
such website only contained procedures such a how to process “certain types of checks” or
transactions that were “not everyday transaction.” 70 They also point out that the weekly circulars
to which Defendants refer are dated 2014, and that they do not recall ever seeing the Notary Policy
until their termination. 71 They further indicate that the Bank has not terminated all employees
alleged to have violated the Notary Policy, such as Stephen Mehlman (or “Mailman”) in 2013 and
Robert Robustelli in 2016. 72
I.
Undisputed Facts Concerning Barbini’s August 21, 2015 Meeting with
Damyanidu.
On August 21, 2015, Barbini met with Damyanidu. 73 During the meeting, Barbini told
Damyanidu about how she had refused a request from Lawless to notarize a home equity loan
document that omitted the middle initial of the name of a customer. 74 Lawless told Barbini that he
would visit the customer at his home to obtain the middle initial for her to notarize the document
afterwards on a Friday night. 75 Barbini refused to do so because she would work on Saturday and

68

(Damyanidu Dep. Tr. at 131:13–132:6; 135:3–20 (April 25, 2018.)

69
(Damyanidu Dep. Tr. at 147:9–25, 151:13–15 (April 25, 2018); McMichael Dep. Tr. at 17:25–19:10,
95:18–24; Regina Dep. Tr. at 38:23–39:14, ECF No. 145-11; Bechtel Dep. Tr. at 132:15–133:22, ECF No. 145-12.)
70

(Henry Dep. Tr. at 19:5–24.)

71

(Id. at 83:8–84:15; Barbini Dep. Tr. at 48:8–16, 52:14–25.)

72

(Damyanidu Dep. Tr. at 157:23–158:25 (April 25, 2018); Regina Dep. Tr. at 122:22–14. 4–25.)

73

(Damyanidu Dep. Tr. at 89:4–13 (April 25, 2018); Barbini Dep. Tr. at 136:20–23.)

74

(Damyanidu Dep. Tr. at 89:14–90:11 (April 25, 2018); Barbini Dep. Tr. at 138:14–140:10.)

75

(Damyanidu Dep. Tr. at 89:14–90:11 (April 25, 2018); Barbini Dep. Tr. at 139:21–140:15.)

11

the customer could come in that day so that she could notarize with him in person—which she did
and closed on the loan. 76 Damyanidu directed Barbini not to notarize the loan even though Barbini
had already refused to do so. 77
J.
Disputed Facts Concerning the Investigation into Plaintiffs’ Alleged Violations of
the Notary Policy.
After the meeting, Damyanidu claims to have contacted Lawless to (i) advise him of her
conversation with Barbini; and (ii) note that obtaining a customer signature outside the presence
of a notary was unacceptable. 78 Later that day, in the evening, Damyanidu claims Lawless called
her again to tell her he witnessed Henry notarizing documents at the end of the day when the
branch was already closed. 79 Recognizing Henry’s alleged conduct as a violation of the Notary
Policy, Damyanidu immediately contacted HR to (i) express her concern about the notary practices
at the Vassar Branch; and (ii) commence an investigation of the same. 80
According to Damyanidu, Marlys Regina (the HR Manager) enlisted Thomas Fee, the
Bank’s Vice President, Security, to investigate the notary practices at the Vassar branch. 81
Damyanidu then sent Fee and HR an email summarizing the allegations that led her to request an
investigation. 82 Fee proceeded to interview (i) Barbini; (ii) Henry; (iii) Robert Robustelli (a
Personal Financial Associate at the Vassar Branch who supposedly had knowledge of Henry’s

76

(Barbini Dep. Tr. at 138:14–140:10.)

77

(Damyanidu Dep. Tr. at 93:12–18 (April 25, 2018); Barbini Dep. Tr. at 145:5–7.)

78

(Damyanidu Dep. Tr. at 95:23–21 (April 25, 2018).)

79

(Id. at 96:22–97:9; Lawless Dep. Tr. at 131:5–10, 134:25–135:21, 137:4–10.)

80

(Damyanidu Dep. Tr. at 101:17–102:3 (April 25, 2018).)

81

(Id. at 106:9–107:13.)

(Id. at 108:11–23; Fee Dep. Tr. at 18:11–20:12, ECF No. 145-13; Regina Dep. Tr. at 135:11–7; Joint Pls.’
Counsel Affs., Ex. Y, ECF No. 145-26.)
82

12

notarial practices); and (iv) Zuzana Cepko, an Assistant Branch Manager at the Pleasant Valley
Branch. 83
During his meeting with Barbini, Fee testified that she said Lawless had requested her to
notarize two loans without the customer present. 84 Barbini told him that she refused to notarize
one of them, but that she notarized the other one without the customer present because Lawless
had secured the customer’s signature at her home due to a broken leg. 85 Relatedly, during his own
deposition, Lawless testified that he purportedly had instructed Barbini to return to the customer’s
home with a blank signature page in order to (i) have the loan documents re-signed in Barbini’s
presence; and (ii) have Barbini notarize the documents there. 86 He claims to have chosen Barbini
“[b]ecause she knew the customer” and she was headed towards the Pleasant Valley branch, which
was nearby the customer’s home. 87
Fee interviewed Henry twice. 88 He testified that during the first interview, Henry initially
denied any improper activity concerning the notarization of any documents. 89 Fee then interviewed
Robustelli, who reported that Henry had once notarized a loan document outside the presence of a
customer days after the customer had signed the documents. 90 Robustelli told Fee that Henry had
notarized the customer’s signature at his request on August 21, 2015, two days after the customer

83

(Fee Dep. Tr. at 28:2–9; Joint Pls.’ Counsel Affs., Ex. AA, ECF No. 145-28.)

84

(Fee Dep. Tr. at 35:4–23.)

85

(Id. at 36:7–20, 38:3–39:2; Joint Pls.’ Counsel Affs., Ex. AA.)

86

(Lawless Dep. Tr. at 115:3–116:13; 121:15–124:7; 128:6–129:9.)

87

(Id. at 121:20–123:9.)

88

(Fee Dep. Tr. at 43:8–20.)

89

(Id.)

90

(Id. at 44:16–45:13; Robustelli Dep. Tr. 53:23–54:18, ECF No. 145-10.)

13

had signed. 91 After interviewing Robustelli, Fee reviewed several hours of video recorded on
August 21, 2015, by the Bank’s security cameras of the Vassar Branch, which he claims confirmed
Robustelli’s claims. 92 Fee recalled Henry and conducted a second interview, during which she
purportedly admitted to notarizing the customer’s signature two days after the customer had signed
the documents and to also notarizing a second loan in violation of the Bank’s Notary Policy. 93
After concluding his interviews, Fee related the following findings in his report: (i) Barbini
admitted notarizing a loan outside the presence of the customer; (ii) Lawless requested that Barbini
notarize the two loans outside the presence of those customers; and (iii) Henry admitted to
notarizing two loans outside the presence of the customers. 94 On September 3, 2015, Damyanidu
and Regina received Fee’s report. 95
Plaintiffs dispute several aspects of Fee and Defendants’ accounts. They first indicate that
Damyanidu, not Regina, enlisted Fee to investigate the notary practices because (1) Regina denied
ever contacting Fee to investigate the matter and (2) Fee testified that Damyanidu contacted him
first. 96 Barbini denies ever admitting to notarizing a loan without the customer present. 97 Henry
also disputes Fee’s account of the two interviews he conducted. Henry testified that during the first
interview, she admitted to signing a loan document outside the presence of the customer only a

91

(Joint Pls.’ Counsel Affs., Ex. AA.)

92

(Fee Dep. Tr. 47:22–51–24.)

93

(Fee Dep. Tr. at 43:3–20, 46:5–9; Joint Pls.’ Counsel Affs., Ex. AA.)

94

(Joint Pls.’ Counsel Affs., Ex. AA.)

95

(Damyanidu Dep. Tr. at 162:4–163:15; Regina Dep. Tr. at 11:6–8; 101:21–102:9; 136:8–11.)

96

(Fee Dep. Tr. at 20:13–21:2; Regina Dep. Tr. at 113:4–9.)

(Barbini Aff. ¶¶ 67–78 (Aug. 3, 2020); but see Barbini Dep. Tr. at 156:23–157:4, 198:15–21 (May 3, 2018)
(testifying that she “reported” to Fee and Damyanidu notarizing a loan without the customer being present).)
97

14

few hours after the customer had left the Bank. 98 But that during the second interview, Fee accused
her of lying because he watched video footage showing her notarizing the loan two days after the
customer had signed. 99 Henry said she did not remember that and that she did not lie; she told him
her understanding of what happened to the best of her recollection because it had been a busy
summer. 100 Fee then asked her if there were other documents in which she did the same, to which
she replied she “believed there was one other” by the name of D’Armento. 101 Plaintiffs finally
point out that Fee sent a draft of his report to Damyanidu asking for corrections and additions.
before sending the finalized version to her and Regina. 102
K.

Undisputed Facts Concerning Plaintiffs’ Termination.

Regina and Damyanidu discussed Fee’s Report. 103 Although Lawless was not a notary, the
Bank accepted Fee’s finding that, as Branch Manager, Lawless improperly had requested that
Barbini notarize two loans outside the customers’ presence. 104 After reviewing the report, Regina
forwarded it to McMichael, noting her view that Fee’s findings supported terminations for Barbini,
Henry, and Lawless. 105 Although Regina had the authority to terminate employees for such
conduct, HR managers like herself typically notified McMichael prior to terminating multiple

98

(Henry Dep. Tr. at 88:17–89:19.)

99

(Id. at 90:12–91:11.)

100

(Id.)

101

(Id. at 91:12–21.)

102

(Joint Pls.’ Counsel Affs., Ex. BB.)

(Defs.’ SUMF ¶ 110.) Under Local Civil Rule 56.1, the Court construes Plaintiffs’ failure to specifically
controvert the correspondingly numbered paragraph in Defendants.’ SUMF as an admission of the same.
103

104
(Defs.’ SUMF ¶ 112.) Under Local Civil Rule 56.1, the Court construes Plaintiffs’ failure to specifically
controvert the correspondingly numbered paragraph in Defendants.’ SUMF as an admission of the same.

(Defs.’ SUMF ¶ 108.) Under Local Civil Rule 56.1, the Court construes Plaintiffs’ failure to specifically
controvert the correspondingly numbered paragraph in Defendants.’ SUMF as an admission of the same.
105

15

employees at one branch. 106 However, while both Regina and McMichael testified that they would
have recommended termination for employee violations of the Notary Policy, neither recall
recommending the termination of Barbini, Henry, and Lawless. 107
On September 9, 2015, Damyanidu finished drafting the termination reports for Barbini,
Henry, and Lawless, and sent them to Regina for review and approval. 108 During her review,
Regina revised Lawless’s draft termination report to remove a reference to the text message
incident, thus aligning the report to terminate Lawless based only on the findings of Fee’s report. 109
That afternoon, Regina and Damyanidu met separately with Barbini, Henry, and Lawless to
convey that their employment was being terminated. 110
The report that Damyanidu issued to Barbini provided as follows:
Claudia violated the notary policy by notarizing, by her own admission, a Home
equity loan without witnessing the actual signature of the clients in August 2015.
The loan documents were signed with the Branch manager in the customer’s home
and brought back to the branch where Claudia notarized them. This is not only a
violation of [First Niagara] policy but also is a violation of NY State notary law.
The two most important things when notarizing a document are: 1) verify the person
in front of you signing the document is who they say they are and 2) witness their
signature. In this case Claudia failed to do both. 111
The report that Damyanidu issued to Henry similarly provided as follows:
Maryetta violated the notary policy by notarizing, by her own admission, two Home
equity loans without witnessing the actual signature of the clients in August 2015.
In one of the occasions the loan documents were signed on 8/9/15 with the Personal
Financial Associate in the Branch and Maryetta did not notarize[] them until
106
(Defs.’ SUMF ¶ 109.) Under Local Civil Rule 56.1, the Court construes Plaintiffs’ failure to specifically
controvert the correspondingly numbered paragraph in Defendants.’ SUMF as an admission of the same.
107

(Regina Dep. Tr. at 82:8–83:7, 116:15–117:2; McMichael Dep. Tr. at 67:9–12, 72:15–74:2.)

(Defs.’ SUMF ¶ 117.) Under Local Civil Rule 56.1, the Court construes Plaintiffs’ failure to specifically
controvert the correspondingly numbered paragraph in Defendants.’ SUMF as an admission of the same.
108

109

(Regina Dep. Tr. at 79:22–81:19.)

110

(Defs.’ SUMF ¶ 119; Pls. CSUMF ¶ 119.)

111

(Defs.’ SUMF ¶ 122; Pls. CSUMF ¶ 122.)

16

8/21/15 – all of that information was also verified through security tapes by the
regional security officer. This is not only a violation of [First Niagara] policy but
also is a violation of NY State notary law. The two most important things when
notarizing a document are: 1) verify the person in front of you signing the document
is who they say they are and 2) witness their signature. In this case Maryetta failed
to do both. 112
The report that Damyanidu issued to Lawless provided as follows:
August 2015 Hugh transported Home Equity loan documents that were signed by
customer in the Pleasant Valley branch to the branch in Vassar and requested that
the Assistant Branch Manager notarize them without the customer being present.
In another occasion, Hugh went to a customer’s home and signed the Home Equity
Loan documents that he later brought back to the Assistant branch manager to
notarize. Hugh’s request resulted in a First Niagara policy Violation and NY State
Notary Law Violation. Both require that the notary when notarizing a document 1)
verifies the person in front of them signing the document is who they say they are
and 2) witnesses their signature. 113
L.

Procedural History

Plaintiffs filed their original complaint on October 8, 2016 (ECF No. 7) 114 and amended
their complaint on January 4, 2017 (ECF No. 26). Defendants answered to the original complaint
on December 23, 2016 (ECF Nos. 21 & 22) and to the amended complaint on January 25, 2017
(ECF Nos. 27 & 28). On October 13, 2017, the case was referred to Magistrate Judge Judith C.
McCarthy for general pretrial matters such as discovery and non-dispositive pretrial motions. (ECF
No. 35.) The parties completed discovery on November 21, 2019. (ECF No. 106.) Currently
pending before the Court is Defendants’ motion for summary judgment (Mot., ECF No. 139),
which Plaintiffs have opposed (“Response in Opposition,” ECF No. 143), and in support of which
Defendant has filed a reply (“Reply,” ECF No. 146).

112

(Defs.’ SUMF ¶ 126; Pls. CSUMF ¶ 126.)

113

(Defs.’ SUMF ¶ 130; Pls. CSUMF ¶ 130.)

Plaintiffs filed their original complaint on October 8, 2016, but due to several filing errors on ECF, the
complaint was successfully docketed on October 11, 2016.
114

17

LEGAL STANDARD
Under Federal Rule of Civil Procedure 56(c), summary judgment must be granted if “there
is no genuine issue of material fact and . . . the moving party is entitled to a judgment as a matter
of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 323 n. 4 (1986). “[G]enuineness runs to whether
disputed factual issues can reasonably be resolved in favor of either party, [while] materiality runs
to whether the dispute matters, i.e., whether it concerns facts that can affect the outcome under the
applicable substantive law.” Mitchell v. Washingtonville Cent. Sch. Dist., 190 F.3d 1, 5 (2d Cir.
1999) (internal quotations and citations omitted). In order to prove that a genuine issue of material
fact exists, a plaintiff “may not rest upon the mere allegations or denials of the pleading[s],” but
must by affidavit or otherwise “set forth specific facts showing that there is a genuine issue for
trial.” Fed. R. Civ. P. 56(e). “Conclusory statements, conjecture or speculation by the party
resisting the motion will not defeat summary judgment.” Kulak v. City of New York, 88 F.3d 63,
71 (2d Cir. 1996).
Courts must resolve all ambiguities and draw all reasonable factual inferences in favor of
the non-moving party. See Nora Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742
(2d Cir. 1998). The moving party bears the initial burden of demonstrating an absence of genuine
issues of material fact. See Schwapp v. Town of Avon, 118 F.3d 106, 110 (2d Cir.1997). If the
initial burden is met, the non-moving party “must produce specific facts indicating that a genuine
issue of fact exists. If the evidence [presented by the non-moving party] is merely colorable, or is
not significantly probative, summary judgment may be granted.” Scotto v. Almenas, 143 F.3d 105,
114 (2d Cir. 1998) (internal quotations and citations omitted) (alteration in original).
DISCUSSION
In total, Plaintiffs assert fourteen causes of action against the Bank and the remaining
Defendants in their individual and official capacities. On the one hand, Barbini asserts ten claims:
18

two Title VII claims based on gender discrimination (female) and retaliation (for opposing sexual
harassment) against the Bank; three ADEA claims based on age discrimination (over 40 years old),
retaliation (for opposing age discrimination) and hostile work environment (over 40 years old)
against the Bank; and their respective equivalent claims under the NYSHRL against all
Defendants. (Resp. in Opp’n at 17, 32, 35, 37.) On the other hand, Henry asserts four claims: two
Title VII claims based on gender discrimination (female) and retaliation for (opposing sexual
harassment) against the Bank, and their respective equivalent claims under the NYSHRL against
all Defendants. (Id. at 17, 32, 37.) 115
By their motion, Defendants contend in a nutshell that: (1) Plaintiffs’ claims for
discrimination and retaliation each fail for failure to establish a prima facie case, or alternatively,
each fail to demonstrate that the reason for their termination was a pretext or that they were
motivated at least in part by discrimination or retaliation, respectively; and (2) Plaintiffs’ claims
for hostile work environment fail for failure to establish the requisite level of hostility and that the
same was motivated by discriminatory animus. (Mot. at 26, 29–32.) The Court addresses those
arguments in that order.

Plaintiffs originally asserted twenty causes of action in their Amended Complaint: fourteen by Barbini
and six by Henry. (See generally Am. Compl.) However, on January 24, 2020, the Court held a premotion conference
during which Plaintiffs’ counsel confirmed that there were only fourteen causes of action in this case after they
withdrew six of them, leaving eight claims for Barbini and six for Henry—although they failed to specify which
particular causes remained. (See Defs.’ Counsel Affs., Ex. 21 at 22:2–22, ECF No. 142-2.)
115

Confusingly and contrary to their representations to the Court, Plaintiffs now claim in their response in
opposition that they are asserting eighteen causes of action:
This is an action for compensatory and punitive damages, proximately caused by Defendants’
violation of Plaintiffs’ right to be free of gender discrimination, hostile work environment, and
retaliation as guaranteed by [Title VII] and the [NYSHRL] [12 causes of action], as well as Plaintiff
Barbini’s right to be free from age discrimination, retaliation and a hostile work environment under
Title VII, the NYSHRL, and under the [ADEA] [6 causes of action].
(Resp. in Opp’n at 6.) Nonetheless, based on the extent that Plaintiffs discuss each of their claims in their
response in opposition, the Court construes that Plaintiffs are in effect only asserting the fourteen claims as
enumerated in this opinion.

19

I. Individual Defendants’ Liability in their Individual and Official Capacities
Before reaching the substance of Plaintiffs’ claims, the Court notes that “[n]either the
ADEA nor Title VII allows for imposition of personal liability on the part of an individual,
employee or supervisor.” See Mabry v. Neighborhood Defender Service, 769 F. Supp. 2d 381, 391
(S.D.N.Y. 2011) (citing Wrighten v. Glowski, 232 F.3d 119, 120 (2d Cir. 2000) (holding that
individual defendants may not be personally liable under Title VIII); Parker v. Metro. Transp.
Auth., 97 F. Supp. 2d 437, 452 (S.D.N.Y. 2000) (holding that an individual defendant may not be
liable under the ADEA).
While the Second Circuit has yet to address whether plaintiffs may assert claims under
Title VII or the ADEA against individuals in their official capacities, many courts within this
Circuit (including this one) have disallowed claims against non-employer individuals sued in their
official capacities because such claims are duplicative of claims against a corporate defendant.
See, e.g., Garcia v. Yonkers Bd. of Educ., No. 15 Civ. 767 (NSR), 2016 WL 3064116, at *4
(S.D.N.Y. May 27, 2016) (“Plaintiff cannot assert any Title VII retaliation claims against the
Individual Defendants, even in their official capacities, and all such claims are dismissed.”);
Harrison v. Banque Indosuez, 6 F. Supp. 2d, 224, 229 (S.D.N.Y. 1998) (dismissing the official
capacity Title VII claims against a senior bank officer and supervisor); Gray v. Shearson Lehman
Bros., Inc., 947 F. Supp. 132, 135–36 (S.D.N.Y. 1996) (holding that Congress did not permit Title
VII suits against individuals in their official capacities); see also Tomka v. Seiler Corp., 66 F.3d
1295, 1313–17 (2d Cir. 1995) (“[I]ndividual defendants with supervisory control over a plaintiff
may not be held personally liable under Title VII[.]” . . . “Congress never intended to hold agents
individually liable for violations of [Title VII.]”), abrogated on other grounds, Burlington
Industries, Inc. v. Ellerth, 524 U.S. 742 (1998).

20

Therefore, to the extent that Plaintiffs assert Title VII and ADEA claims against
Damyanidu, Lawless, and McMichael in their individual and official capacities, the Court
dismisses them as a matter of law.
But unlike Title VII and the ADEA, the NYSHRL allows for individual liability under
certain circumstances—such as the one here, in which Plaintiffs brought their claims against
Damyanidu, Lawless, and McMichael as “aiders and abettors.” The NYSHRL makes it unlawful
“for any person to aid, abet, incite, compel, or coerce” acts prohibited by the NYSHRL. See N.Y.
Exec. Law. § 296(6). Courts have held that an “aider and abettor” is generally “a co-worker who
actually participates in the conduct giving rise to a discrimination claim . . . even though that coworker lacked the authority to either hire or fire the plaintiff.” Feingold v. New York, 366 F.3d
138, 158 (2d Cir. 2004) (citing Tomka, 66 F.3d at 1317). But importantly, aiding and abetting “is
only a viable theory where an underlying violation has taken place.” Falchenberg v. N.Y. State
Dep’t of Educ., 338 F. App’x 11, 14 (2d Cir. 2009).
Thus, Plaintiffs’ claims against Damyanidu, Lawless, and McMichael in their individual
capacities under the NYSHRL remain at issue because of their undisputed roles in Plaintiffs’
termination. 116 And consequently, Plaintiffs’ claims against Damyanidu, Lawless, and McMichael
in their individual capacities under the NYSHRL will survive summary judgment so long as
Plaintiffs’ counterpart claims against the Bank survive summary judgment.
That said, while Plaintiffs purport to bring their NYSHRL causes of action against
Damyanidu, Lawless, and McMichael in their “official capacities,” “[a]n official capacity claim

116
(See, e.g., Defs.’ SUMF ¶¶ 83, 117; Pls.’ CSUMF ¶¶ 83, 117 (agreeing that Damyanidu, Plaintiffs’ area
manager, commenced the investigation and drafted the reports that led to their termination); Defs.’ SUMF ¶¶ 34–36,
82; Pls.’ CSUMF ¶¶ 34–36, 82 (agreeing that Lawless sent inappropriate text messages to Henry and he also reported
her alleged violation of the Notary Policy to Damyanidu that led the investigation and Plaintiffs’ termination); Defs.’
SUMF ¶¶ 8, 63, 66; Pls.’ CSUMF ¶¶ 8, 63, 66 (agreeing on McMichael’s role as the Bank’s HR director at the time
of the termination and that he only issued a final written warning to Lawless).)

21

against an employee of a private corporation is viewed as a claim against the corporate entity
itself.” Sloth v. Constellation Brands, Inc., 883 F. Supp. 2d 359, 359 n.1 (W.D.N.Y. 2012) (citing
Galloway v. Swanson, No. 5:09-CV-02934-JRA, 2012 WL 646074, at *8 (N.D. Ohio Feb. 28,
2012)). Hence, as Damyanidu, Lawless, and McMichael are all current or former employees of the
Bank, and the Bank is already named as a defendant, the Court need not consider the NYSHRL
claims against them in their “official capacities.” Id. (citing Owens v. Connections Cmty. Support
Programs, Inc., 840 F. Supp. 2d 791, 796 (D. Del. 2012) (where “employer is named as a
defendant, the same discrimination claim against an employee in his official capacity is
redundant.”); see also Doe v. Bloomberg, L.P., et al., 36 N.Y.3d 450, 459 (N.Y. 2021) (holding
that “where a plaintiff’s employer is a business entity, the shareholders, agents, limited partners,
and employees of that entity are not employers” within the meaning of the NYSHRL; “[r]ather,
those individuals may only incur liability only for their own discriminatory conduct, for aiding and
abetting such conduct by others, or for retaliation against protected conduct.”).
II. Exhaustion of Federal Claims
Next, as a threshold matter, the Court addresses whether Plaintiffs properly exhausted
their administrative remedies with respect to their Title VII and ADEA claims before bringing
the instant suit.
Generally, to bring a Title VII discrimination claim in federal district court, plaintiffs must
first exhaust their administrative remedies by “filing a timely charge with the Equal Employment
Opportunity Commission (“EEOC”) or with ‘a State or local agency with authority to grant or seek
relief from such practice.’” Holtz v. Rockefeller & Co., Inc., 258 F.3d 62, 82–83 (2d Cir. 2001)
(quoting 42 U.S.C. § 2000e–5(e)); see also Duplan v. City of New York, 888 F.3d 612, 614 (2d
Cir. 2018) (“Exhaustion is an essential element of Title VII’s statutory scheme.”) (internal
quotations omitted).
22

Unlike Title VII, the ADEA provides that “[n]o civil action may be commenced by an
individual . . . until 60 days after a charge alleging unlawful discrimination has been filed with the
[EEOC].” 29 U.S.C. § 626(d)(1). Yet, the ADEA further requires that an EEOC charge be filed
within 180 days, or 300 days for a deferral state “after the alleged practice occurred.” Id. Thus,
“while a putative plaintiff is not required to receive authorization to sue from the agency prior to
commencing litigation—unlike the Title VII context—the ADEA nevertheless sets out a statutory
administrative requirement prior to filing suit.” Rusis v. Int’l Bus. Machines Corp., 529 F. Supp.
3d 178, 198 (S.D.N.Y. 2021) (citing Holland v. City of New York, No. 10-CV-2525, 2011 WL
6306727, at *4 (S.D.N.Y. Dec. 16, 2011)).
The purpose of this requirement is articulated in the statute itself, which provides that, after
receiving a charge, the EEOC “shall promptly notify all persons named in such charge as
prospective defendants in the action and shall promptly seek to eliminate any alleged unlawful
practice by informal methods of conciliation, conference, and persuasion.” Id. (quoting 29 U.S.C.
§ 626(d)(2)). Courts routinely emphasize the remedial purpose of the statute's administrative
exhaustion requirement in adjudicating claims under the ADEA. See Tolliver v. Xerox Corp., 918
F.2d 1052, 1057 (2d Cir. 1990); see also Holowecki v. Fed. Exp. Corp., 440 F.3d 558, 564 (2d Cir.
2006) (“Holowecki II”) (“[P]roviding the EEOC with an opportunity to eliminate the
discriminatory practice or practices alleged, and to effect voluntary compliance with the
requirements of the ADEA through informal methods of conciliation, conference, and persuasion,
is an essential element of the ADEA’s statutory scheme.” (cleaned up)).
Courts also consider complaints of discrimination filed with the New York State Division
of Human Rights (“NYSDHR”) as if they were cross-filed with the EEOC. See Govia v. Century
21, Inc., 140 F. Supp. 2d 323, 325, n. 1 (S.D.N.Y. 2001). “But unlike Title VII [and the ADEA],

23

the NYSHRL . . . do[es] not require exhaustion of administrative remedies” prior to commencing
an equivalent claim. Manos v. Geissler, 377 F. Supp. 2d 422, 428 (S.D.N.Y. 2005) (citing Lumhoo
v. Home Depot USA, Inc., 229 F. Supp. 2d 121, 136 n. 13 (E.D.N.Y. 2002)). To that end, the Court
only addresses whether Plaintiffs exhausted their claims under federal law and not their equivalent
claims under state law.
A.

Henry’s Title VII Claims

The record here shows that on October 5, 2015, Henry filed a verified complaint with the
NYSDHR against the Bank, Damyanidu, and Lawless. (See Am. Compl. ¶ 11, Ex. B.) While the
record does not include Henry’s original NYSDHR complaint, the Court considers all other
NYSDHR documents available in the record to determine whether Henry exhausted her Title VII
claims against Defendants. After a thorough review of the record, the Court concludes that Henry
exhausted her two Title VII claims based on gender discrimination and retaliation.
The NYSDHR’s Final Investigation Report and Basis of Determination notes that Henry
alleged that the Bank, Damyanidu, and Lawless engaged in an “unlawful discriminatory practice”
relating to employment because of sex, [and] opposed discrimination/retaliation in violation of
N.Y. Exec. Law, art. 15.” (Id. ¶ 12, Ex. B.) After its investigation, the NYSDHR found probable
cause to believe that Defendants “have engaged in or are engaging in the unlawful discriminatory
practice complained of.” (Id. ¶ 13, Ex. B.) Subsequently, on September 8, 2016, the EEOC issued
Henry a “notice of right to sue” letter. (Id., Ex. A.)
In sum, the record shows that Henry explicitly asserted—and thus, exhausted—her Title
VII claims based on gender discrimination and retaliation against the Bank.
B.

Barbini’s Title VII and ADEA Claims

The record shows that on February 22, 2016, Barbini filed a charge of discrimination with
the EEOC against the Bank. (See Am. Compl. ¶ 15, Ex. C.) Within her charge, she alleged that the
24

Bank engaged in unlawful age discrimination and retaliation when it terminated her for being over
40 and for opposing sexual harassment in the workplace in violation of federal and state law. (Id.)
She also alleged that Damyanidu and Lawless “subject[ed] [her] to a systemic pattern of age
discrimination involving a battery of practices which had an unlawful disparate impact on me and
my employment opportunities, as well as a hostile work environment.” (Id.) Barbini further alleged
that immediately after reporting to Damyanidu that Lawless instructed her to notarize documents
and complaining about being discriminated because of her age, Damyanidu started the
investigation into notarization practices that eventually led to her termination. (Id.)
On July 7, 2016, when her EEOC charge was pending for more than 130 days, Barbini sent
the EEOC a letter requesting an early “notice of right to sue” letter. (Id. ¶ 16, Ex. D.) Five days
later, the EEOC granted Barbini’s request and sent her an early “notice of right to sue” letter. (Id.
¶ 17, Ex. E.)
In sum, the record shows that Barbini explicitly alleged in her EEOC charge—and thus
exhausted 117—(1) an ADEA claim for age discrimination; (2) an ADEA claim for hostile work
environment based on age discrimination; (3) an ADEA retaliation claim for opposing age
discrimination; and (4) a Title VII retaliation claim for opposing sexual harassment. However,
nowhere in her EEOC charge does she explicitly allege a Title VII claim for gender discrimination.
“[C]laims that were not asserted before the EEOC [or an appropriate State or local agency]
may [still] be pursued in a subsequent federal court action if they are reasonably related to those

Many courts, both within this Circuit and beyond, have raised the question of whether such early “notice
of right-to-sue letters” are permissible for purposes of exhausting federal claims of discrimination. See, e.g., Arroyo
v. WestLB Admin., Inc., 213 F.3d 625, *1 (2d Cir. 2000) (citing cases). However, the Court declines to address the
issue because Defendants fail to raise it in their motion and the Second Circuit has (without deciding the ultimate
question) held that the validity of an early right-to-sue notice “is not jurisdictional in nature.” Id.; see also Ibraheem
v. Wackenhut Servs., Inc., 29 F. Supp. 3d 196, 208 n. 9 (E.D.N.Y. 2014) (“[E]ven if invalid, an early right to sue letter
is not jurisdictional in nature.”); Kahn v. Objective Solution, Int’l, 86 F. Supp. 2d 377, 380 (S.D.N.Y. 2000) (“The
early issuance of a right-to-sue latter would not deprive this Court of jurisdiction.” (citing cases supporting and
rejecting this proposition)).
117

25

that were filed with the agency.” Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 177 (2d Cir.
2005) (quoting Legnani v. Alitalia Linee Aeree Italiane, S.P.A., 274 F.3d 683, 686 (2d Cir. 2001)
(per curiam)). “Reasonably related conduct is that ‘which would fall within the scope of the EEOC
investigation which can reasonably be expected to grow out of the charge that was made.’” Id.
(quoting Fitzgerald v. Henderson, 251 F.3d 345, 358 (2d Cir. 2001)); see also Mathirampuzha v.
Potter, 548 F.3d 70, 77 (2d Cir. 2008) (providing that claim is reasonably related when
“administrative complaint can be fairly read to encompass the claims ultimately pleaded in a civil
action or to have placed the employer on notice that such claims might be raised.”).
In determining whether a claim is “reasonably related” to the EEOC charge, “the focus
should be on the factual allegations made in the [EEOC] charge itself . . .” and on whether those
allegations “gave the [EEOC] ‘adequate notice to investigate’” the claims asserted in court.
Williams v. N.Y. City Hous. Auth., 458 F.3d 67, 70 (2d Cir. 2006) (quoting Deravin v. Kerik, 335
F.3d 195, 201–02 (2d Cir. 2003)).
After reviewing the record, the Court concludes that Barbini’s Title VII claim for gender
discrimination is not “reasonably related” to the allegations in her EEOC charge. To begin, Barbini
did not check the box for “sex” on the cover sheet to her EEOC charge. (See Am. Compl., Ex. C.)
Neither did she include in the EEOC charge’s factual statement any reference to any alleged
discrimination against her on the basis of being female. (See generally id.) Rather, her allegations
in the EEOC charge focus on the alleged age discrimination by Damyanidu and Lawless, and the
retaliation she suffered for helping Henry with her sexual harassment complaint. (Id.) Indeed, the
first references to any alleged gender discrimination against Barbini are contained in her original
complaint of the instant lawsuit, filed October 8, 2016. (See Compl. ¶ 78, ECF No. 7 (“[D]efendant
FIRST NIAGARA has denied plaintiff BARBINI her right to a workplace free from discrimination

26

because of her gender as guaranteed [sic] her by reason of Title VII, 42 U.S.C. § 2000e et seq.”
(emphasis in original).)
Moreover, Barbini cannot overcome her failure to exhaust her Title VII claim for gender
discrimination by “piggybacking” onto the allegations from Henry’s NYSDHR complaint. The
single-filing rule, commonly known as the “piggybacking” doctrine, is a judicially created
exception to the administrative exhaustion requirement. See Rusis, 529 F. Supp. 3d at 199. Under
the single-filing rule, plaintiffs who have never filed an EEOC charge, and therefore have not given
notice of her discrimination complaint to either their employer or the EEOC, can still litigate their
Title VII claims so long as they fall “within the scope” of the timely filed claims of another
individual. See Dargento v. Bally's Holiday Fitness Ctrs., 990 F. Supp. 186, 193 (W.D.N.Y. 1997)
(citing Snell v. Suffolk Cnty., 782 F.2d 1094, 1100–1101 (2d Cir. 1986)).
However, the Second Circuit has held that “[a]n individual who has previously filed an
EEOC charge cannot piggyback onto someone else’s EEOC charge.” Holowecki II, 440 F.3d at
564 (citing Levy v. United States Gen. Accounting Office, 175 F.3d 254, 255 (2d Cir. 1999) (per
curiam); Snell¸782 F.2d at 1100 (stating that “non-filing plaintiffs” can take advantage of the rule);
accord Rusis, 529 F. Supp. 3d at 203 (rejecting plaintiffs’ arguments that Holowecki II’s
“unequivocal holding” applies only to certain situations). As noted by other Circuit Courts of
Appeals, allowing an individual who has previously filed a charge to abandon that charge and
piggyback onto the charges of another individual would too often frustrate the EEOC’s statutorily
mandated efforts to resolve an individual charge through informal conciliation. Id. at 565 (citing
Gitlitz v. Compagnie Nationale Air France, 129 F.3d 554, 557–58 (11th Cir. 1997); Anderson v.
Unisys Corp., 47 F.3d 302, 308–09 (8th Cir. 1995)). Thus, the Court dismisses Barbini’s Title VII

27

claim for gender discrimination against Defendants for failure to satisfy the exhaustion
requirement.
Having determined that Plaintiffs’ claims under federal law were properly exhausted,
except for Barbini’s Title VII gender discrimination claim, the Court now addresses the substance
of Plaintiffs’ remaining claims under federal and state law.
III. Discrimination Claims Based on Gender and Age
A.

Legal Standards

Under Title VII, it is unlawful for an employer to “discriminate against any individual with
respect to his compensation, terms, conditions, or privileges of employment, because of such
individual’s . . . sex.” 42 U.S.C. § 2000e-2(a)(1). The ADEA similarly makes it unlawful for
employers “to fail or refuse to hire or to discharge any individual or otherwise discriminate against
any individual . . . because of such individual’s age” 29 U.S.C. § 623(a)(1). The ADEA covers
individuals that are at least forty years old. Id. The NYSHRL also provides that it is “an unlawful
discriminatory practice” for an employer “to discriminate against such individual in compensation
or in terms, conditions or privileges of employment” based on an individual’s sex or age, among
other characteristics. N.Y. State Exec. Law § 296(1)(a).
Courts analyze claims based on circumstantial evidence brought under the ADEA, Title
VII, and the NYSHRL under the burden-shifting analysis articulated by the Supreme Court
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Pucino v. Verizon Wireless
Commc’ns, Inc., 618 F.3d 112, 117 n.2 (2d Cir. 2010) (“We review discrimination claims brought
under the NYSHRL according to the same standards that we apply to Title VII discrimination
claims.”); Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 105–06 (2d Cir. 2010) (applying
framework to ADEA and NYSHRL claims based on age discrimination).

28

Under the McDonnell Douglas framework, the plaintiff must establish a prima facie case.
411 U.S. at 802. To establish a prima facie case of either gender or age discrimination, a plaintiff
must demonstrate that “(1) she was within the protected class; (2) she was qualified for the
position; (3) she was subject to an adverse employment action; and (4) the adverse action occurred
under circumstances giving rise to an inference of discrimination.” Liebowitz v. Cornell Univ., 584
F.3d 487, 498 (2d Cir. 2009) (Title VII); Carlton v. Mystic Transp., Inc., 202 F.3d 129, 134 (2d
Cir. 2000) (ADEA).
The plaintiff’s burden at this stage is “minimal” or “de minimis.” Weinstock v. Columbia
Univ., 224 F.3d 33, 42 (2d Cir. 2000) (describing burden for discrimination claims); Jute v.
Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005) (describing burden for retaliation
claims). However, a plaintiff must establish all four elements of the prima facie case before
proceeding with the next step of the McDonnell Douglas framework. See O’Connor v. Consol.
Coin Caterers Corp., 517 U.S. 308, 311–12 (1996) (“As the very name ‘prima facie case’ suggests,
there must be at least a logical connection between each element of the prima facie case and the
illegal discrimination for which it establishes a ‘legally mandatory, rebuttable presumption[.]’”
(citations omitted)).
Once a plaintiff has made a prima facie case, the burden shifts to the employer to articulate
a “legitimate, nondiscriminatory reason” for the employment action. McDonnell Douglas, 411
U.S. at 802. In other words, “[t]he defendant must clearly set forth, through the introduction of
admissible evidence, reasons for its actions which, if believed by the trier of fact, would support a
finding that unlawful discrimination was not the cause of the employment action.” St. Mary’s
Honor Ctr. v. Hicks, 509 U.S. 502, 507 (1993) (internal quotation marks and emphasis omitted).

29

Upon the defendant’s proffer of a non-discriminatory reason, the presumption of
discrimination arising with the prima facie case “drops from the picture,” Weinstock, 224 F.3d at
42 (citing Hicks, 509 U.S. at 510–11), and the “final and ultimate burden” then returns to the
plaintiff to demonstrate that “defendant’s reason is in fact [a] pretext for unlawful discrimination,”
Cortes, 802 F.3d at 231; see McDonnell Douglas, 411 U.S. at 804; Weinstock, 224 F.3d at 42. The
plaintiff must “produce not simply some evidence, but sufficient evidence to support a rational
finding that the legitimate, non-discriminatory reasons proffered by the defendant were false, and
that more likely than not the discrimination was the real reason for the employment action.”
Weinstock, 224 F.3d at 42 (internal quotation marks omitted) (citation omitted). Alternatively, a
plaintiff may meet its final burden by relying on direct or indirect evidence demonstrating that “an
impermissible reason was a motivating factor, without proving that the employer’s proffered
explanation played no role in its conduct.” Holtz, 258 F.3d at 81 (internal quotations omitted)). “In
short, the question becomes whether the evidence, taken as a whole, supports a sufficient rational
inference of discrimination.” Weinstock, 224 F.3d at 42.
The Second Circuit has “repeatedly expressed the need for caution about
granting summary judgment to an employer in a discrimination case where . . . the merits turn on
a dispute as to the employer’s intent. At the same time, . . . the salutary purposes of summary
judgment-avoiding protracted and harassing trials-apply no less to discrimination cases than to
other areas of litigation.” Tolbert v. Smith, 790 F.3d 427, 434 (2d Cir. 2015) (quotation marks,
citations, and alterations omitted.) As in any other case, a plaintiff in an employment
discrimination or retaliation case “must ‘do more than simply show that there is some metaphysical
doubt as to the material facts.’ She must come forth with evidence sufficient to allow a reasonable
jury to find in her favor.” Brown v. Henderson, 257 F.3d 246, 252 (2d Cir. 2001) (quoting

30

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986)) (internal citations
omitted). “[C]onclusory statements,” Flores v. United States, 885 F.3d 119, 122 (2d Cir. 2018),
and “affidavit[s] that contradict[ ] the party’s previous sworn testimony,” In re Fosamax Prods.
Liab. Litig., 707 F.3d 189, 193 (2d Cir. 2013), cannot defeat summary judgment.
B.

Application
1.

Plaintiffs’ Claims of Gender Discrimination 118

The parties do not dispute that Plaintiffs meet the first and third elements of the prima facie
case for gender discrimination because they are both women who were terminated from their
employment. 119 However, Defendants contend that Plaintiffs fail to establish the second and fourth
elements of their prima facie case because the Bank terminated them after they violated the Notary
Policy (a non-discriminatory reason) and nowhere in the record is there any circumstance from
which a reasonable jury could conclude an inference of discrimination exists in such termination.
(Mot. at 26–27.)
In opposition, Plaintiffs argue that they meet the second and fourth elements of the prima
facie case because: first, they both had satisfactory performance evaluations and no prior record
of misconduct; and second, they argue the record contains evidence of disparate treatment in the
Bank’s discipline and termination procedures between its male and female employees. (Resp. in
Opp’n at 27.) Additionally, in rebutting Defendants’ non-discriminatory reason for their
termination, Plaintiffs indicate that the record contains a material dispute of fact concerning the
existence of a zero-tolerance policy regarding notaries who violate the Notary Policy, particularly

118
By way of clarification, Plaintiffs’ claims for gender discrimination for purposes of this section include
(a) Henry’s gender discrimination claims under Title VII and the NYSHRL; and (b) Barbini’s gender discrimination
claims under the NYSHRL.
119

(Defs.’ SUMF ¶ 5; Pls.’ CSUMF ¶ 5.)

31

because although Damyanidu, Regina, McMichael, and Bechtel all testified to its existence, no
written reference to such policy exists anywhere. (Id. at 28.)
After thoroughly reviewing the record, the Court concludes that a material dispute of fact
exists precluding summary judgment against Plaintiffs’ claims for gender discrimination.
To begin, viewing the evidence in the light most favorable to Plaintiffs, the Court is of the
view that a reasonable jury could conclude that they establish a prima facie case of gender
discrimination. Regarding the second element (i.e., being qualified for the position), the record
contains Plaintiffs’ work evaluations and performance reviews from their tenure at the Bank, all
of which show that they received high marks for their work performance. 120 None of those
evaluations and reviews contain any negative remarks, past violations, or inappropriate
behavior. 121 Although Damyanidu claims that Henry behaved inappropriately towards Lawless at
one point, and that she received a customer complaint against Barbini for failure to comply with
the Bank’s procedure, Damyanidu herself decided not to draft any warning against them contrary
to the Bank’s standard procedure. 122 Indeed, despite both Damyanidu and Lawless reprimanding
Barbini in July 2015 for violating the Bank’s procedures, Lawless wrote in Barbini’s Midyear
Review that she was “low risk” and “pacing to exceed” in terms of risk and compliance. 123 A
reasonable jury could infer from those facts that, even if Henry did behave inappropriately and
Barbini did fail to comply with the Bank’s procedure, such behaviors were only trivial and
unimpactful to their work performance.

120

(Barbini Dep. Tr. at 96:3–98:6; Joint Pls.’ Counsel Affs., Exs. M, N, & O.)

121

(Joint Pls.’ Counsel Affs., Exs. M, N, & O.)

122

(Damyanidu Dep. Tr. at 102:15–103:25; 104:16–105:4 (April 25, 2018); Damyanidu Aff. ¶ 4.)

123

(Barbini Dep. Tr. at 96:3–98:6; Joint Pls.’ Counsel Affs., Ex. O.)

32

Regarding the fourth element, a reasonable jury could find from the record that the
circumstances surrounding Plaintiffs’ termination give rise to an inference of discrimination in the
form of disparate treatment. When considering whether plaintiffs raise an inference of
discrimination through disparate treatment, the Second Circuit has held that plaintiffs “must show
[they] were ‘similarly situated in all material respects’ to the individuals with whom they seek[] to
compare [themselves].” Graham v. Long Island R.R., 230 F.3d 34, 39 (2d Cir. 2000) (citing
Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997)). To satisfy the “all material
respects” standard for being similarly situated, plaintiffs must show that their co-employees were
“subject to the same performance evaluation and discipline standards.” Id. (citing Norville v. Staten
Island Univ. Hosp., 196 F.3d 89, 96 (2d Cir. 1999)). In addition, plaintiffs “must show that
similarly situated employees who went undisciplined engaged in comparable conduct.” Id. (citing
Norville, 118 F.3d at 64). The conduct of those similarly situated employees “need not be identical
. . . for the two to be similarly situated.” Id. (citing McDonnell Douglas, 411 U.S. at 804).
Here, the record shows that prior to Plaintiffs’ terminations, the Bank had terminated two
other people for violations of the Notary Policy after Damyanidu participated in their investigation:
a female customer care representative and a male personal financial assistant. 124 The record also
shows that the Bank has not terminated every employee who has violated of the Notary Policy.
For example, in another investigation in which Damyanidu participated, the Bank only disciplined
but did not terminate Stephen Mehlman (or “Mailman”) in 2013. 125 Further, the record
indisputably shows that while the Bank terminated Lawless for instructing Barbini to notarize two
loans without the customer being present, 126 it did not terminate Robustelli—who instructed Henry

124

(Id. at 159:4–161:8.)

125

(Damyanidu Dep. Tr. at 157:23–158:25 (April 25, 2018); Regina Dep. Tr. at 122:22–14. 4–25.)

33

to notarize two loans without the customer being present. 127 Indeed, Fee’s report uses the
substantially the same language in describing the behavior of both men. 128
Viewing these facts in the light most favorable to Plaintiffs, a reasonable jury could find
that these other five Bank employees are similarly situated to Plaintiffs because (1) Damyanidu
participated in the investigation of all these employees; and (2) they all purportedly violated the
Bank’s Notary Policy. The Court recognizes that some of these employees were notaries and others
were not. For instance, Mehlman, Barbini, and Henry were all notaries, and the rest were not. 129
However, this fact does not alter the Court’s conclusion; in fact, it lends further support to it. For
one thing, the Bank only disciplined but did not terminate Mehlman, the only male notary who
violated the Notary Policy, while it summarily terminated the two other female notaries, Barbini
and Henry. On the other hand, the Bank did not terminate all three male non-notary employees for
violating the Notary Policy, while it did terminate the only female non-notary employee.
With that mind, the record indicates that out of the seven Bank employees who purportedly
violated the Notary Policy, all three female employees were terminated in comparison to only two
of the four male employees. From these figures alone, a reasonable jury could find disparate
treatment between the Bank’s application of the “zero-tolerance” policy towards men and women.
But additionally, while Defendants claim that the Bank terminated Lawless solely for his violation
of the Notary Policy, the record shows that Damyanidu initially drafted Lawless’s termination

126

(Defs.’ SUMF ¶ 130; Pls. CSUMF ¶ 130.)

127

(Joint Pls.’ Counsel Affs., Ex. AA.)

128
(Compare id. (“[Barbini] [w]as requested by BM Hugh Lawless to notarize two loans originated in the
Pleasant Valley branch without the present[.]”) with id. (“[Henry] [w]as requested by PFA Robert Robustelli to
notarize two HE loans without the customer present.”).

(Damyanidu Dep. Tr. at 157:23–161:14 (April 25, 2018); Defs.’ SUMF ¶ 6; Pls. CSUMF ¶ 6; Robustelli
Dep. Tr. at 52:15–53:3; Defs.’ SUMF ¶ 12.)
129

34

report to include reference to the text message incident with Henry, which Regina later removed
to align the termination report with Fee’s findings. 130 From those facts, a reasonable jury could
infer that but for the text message incident with Henry, the Bank would not have terminated
Lawless—further underscoring the Banks’ disparate treatment of male and female employees who
violate the Notary Policy.
Finally, the Court is of the view that there is a material dispute of fact concerning
Defendants’ argument that the Bank terminated Plaintiffs for a legitimate, non-discriminatory
reason—namely, a violation of the Notary Policy. For one, when drawing all inferences in their
favor, the record suggests that a reasonable jury could conclude that Plaintiffs effectively did not
violate the Notary Policy by the mere fact that they notarized documents outside the presence of
signatory customers. Notably, the Notary Policy requires that the signatory requesting the notary
service “must be physically present” in front of the notary and sign the pertinent document “prior
to [the notary] applying the . . . stamp to the document.” 131 However, such language does not
expressly provide when exactly the notary must apply the stamp to the document. In other words,
it neither requires that the notary apply the stamp immediately after the signatory signs the
document nor that the signatory remain physically present after signing the document in front of
the notary during the application the stamp.
With that in mind, a reasonable jury could conclude that Plaintiffs did not violate the Notary
Policy after considering that (1) Henry testified about having admitted to notarizing a document
outside the presence of the customer a few hours after the customer had left the Bank; 132 and (2)

130

(Regina Dep. Tr. at 79:22–81:19.)

131

(Defs.’ SUMF ¶ 68; Pls.’ CSUMF ¶ 68.)

132

(Henry Dep. Tr. at 88:17–89:19.)

35

Barbini testified that she does not recall ever notarizing a document without the customer present,
but that if she did, then she must have known the customer. 133
But even if Plaintiffs did in fact violate the Notary Policy, the record shows that there is a
material dispute of fact as to whether the “zero-tolerance” policy exists. For example, while
Damyanidu, Regina, McMichael, and Bechtel all testified about the existence of a “zero-tolerance”
policy for violations of the Notary Policy, none of them could refer to a single written reference of
such policy anywhere in the Bank’s corporate documents. 134 Further, Barbini, Henry, and
Robustelli testified that they did not know about the Notary Policy or where to find it. 135 In fact,
Robustelli, who had been a banker for 13 years, testified that he had never been aware “that the
notary physically had to watch the signature happen at the time that the documents were . . .
signed[.]” 136
Consequently, as the existence of the Bank’s “zero-tolerance” policy solely depends on the
credibility of available witness testimony, the Court cannot resolve this matter because it is unable
to assess the credibility of these witnesses at summary judgment. Accordingly, the Court leaves
these credibility issues for a jury to decide. See, e.g., Rule v. Brine, Inc., 85 F.3d 1002, 1011 (2d
Cir.1996) (“Assessments of credibility and choices between conflicting versions of the events are
matters for the jury, not for the court on summary judgment.”); Colby v. Klune, 178 F.2d 872, 873
(2d Cir. 1950) (“[O]nly in [a trial on oral testimony] can the trier of the facts . . . observe the
witnesses' demeanor; and that demeanor—absent, of course, when trial is by affidavit or

133

(Barbini Dep. Tr. at 153:24–154:2, 156:17–20.)

(Damyanidu Dep. Tr. at 147:9–25, 151:13–15 (April 25, 2018); McMichael Dep. Tr. at 17:25–19:10,
95:18–24; Regina Dep. Tr. at 38:23–39:14, ECF No. 145-11; Bechtel Dep. Tr. at 132:15–133:22, ECF No. 145-12.)
134

135

61:2–16.)
136

(Henry Dep. Tr. 16:11–15, 83:8–84:15; Barbini Dep. Tr. at 48:8–13, 52:14–25; Robustelli Dep. Tr. at
(Robustelli Dep. Tr. at 52:15–53:3.)

36

deposition—is recognized as an important clue to witness' credibility. When . . . the ascertainment
(as near as may be) of the facts of a case turns on credibility, a triable issue of fact exists, and the
granting of a summary judgment is error.”) (footnote omitted).
Therefore, the Court denies summary judgment against Henry’s claims for gender
discrimination against Defendants under Title VII and the NYSHRL, and Barbini’s gender
discrimination claims against Defendants under the NYSHRL.
2.

Barbini’s Claims of Age Discrimination

As in Plaintiffs’ gender discrimination claims, the parties do not dispute that Barbini meets
the first and third elements of the prima facie case for age discrimination because she was sixtysix years old at the time the Bank terminated her. 137 But likewise, Defendants similarly contend
that Barbini fails to establish the second and fourth elements of her prima facie case because the
Bank terminated her after she violated the Notary Policy (a non-discriminatory reason) and
nowhere in the record is there any circumstance from which a reasonable jury could conclude an
inference of discrimination exists in such termination. (Mot. at 26–27.)
As the Court noted above in analyzing Plaintiffs’ gender discrimination claims, Barbini
adduces sufficient evidence from the record upon which a reasonable jury can find that she meets
the second element of her prima facie case. Furthermore, because there is a material dispute of fact
as to whether the zero-tolerance policy exists, if Barbini successfully establishes the fourth element
of her prima facie case, then she would also successfully rebut Defendants’ proffered nondiscriminatory reason for her termination. That is why, the Court need only focus on whether she
establishes the fourth element—whether the evidence raises an inference of discrimination.

137

(Defs.’ SUMF ¶ 4; Pls.’ CSUMF ¶¶ 4, 153.)

37

In short, Barbini argues that she meets the fourth element of the prima facie case because
Defendants made several age-related discriminatory remarks to Barbini and that they replaced her
with younger and less qualified employees. (Resp. in Opp’n at 20–21.) But after thoroughly
reviewing the record, the Court disagrees.
Even when drawing all inferences in Barbini’s favor, the Court is of the view that the record
contains no concrete evidence upon which a reasonable jury could find an inference of
discrimination. To begin, the fact that the Bank replaced Barbini with Cepko, who is substantially
younger than her, “does not itself prove unlawful discrimination.” Fagan v. New York State Elec.
& Gas Corp., 186 F.3d 127, 134 (2d Cir. 1999) (citations omitted); see also Coleman v. Prudential
Relocation, 975 F. Supp. 234, 242 (W.D.N.Y. 1997) (“If plaintiff’s case could survive a summary
judgment motion merely because her duties were assumed by a younger person, that would mean
that ‘virtually every employee over forty years old [who was terminated and whose duties were
assigned to someone younger] could state an age claim that would withstand summary judgment.
Such a holding would be tantamount to saying that a prima facie case would always suffice to raise
issues of fact about the truth of the employer’s proffered reason, which would render the
McDonnell Douglas . . . analysis pointless.’” (internal citations omitted)).
But notably, the only evidence purporting to support an inference of age discrimination
against Barbini is Barbini’s own conclusory allegations and subjective impressions, all of which
are insufficient to defeat summary judgment. “[M]ere conclusory allegations, speculation or
conjecture will not avail a party resisting summary judgment.” Conroy v. New York State Dep’t of
Correctional Servs., 333 F.3d 88, 94 (2d Cir. 2003). Nor will plaintiffs’ subjective impressions
provide a sufficient basis for inferring discrimination to defeat summary judgment. See Littman v.
Firestone Tire & Rubber Co., 709 F. Supp. 461, 466 (S.D.N.Y. 1989); see also Cameron v. Cmty.

38

Aid for Retarded Children, Inc., 335 F.3d 60, 65 (2d Cir. 2003) (where decisionmaker’s remark or
conduct is facially neutral, the court should not infer discriminatory intent, because “[c]hoosing
one explanation over another without more evidence is a matter of speculation”).
For instance, as to Damyanidu, Barbini testified at deposition that she knew Damyanidu
wanted to get rid of her and replace her because Barbini “did not fit the look, the character, and
[her] age.” 138 Yet, Barbini also admitted that Damyanidu never said anything verbally or in
writing, or that any other employees told Barbini anything to that effect. 139 Instead, Barbini
testified that she had a “gut feeling” that Damyanidu wanted to get rid of her due to her age based
on Damyanidu’s apparent aggressive sales personality, body language and purported disgusted
looks towards Barbini. 140 Hence, Barbini’s self-admitted subjective impressions and other
conclusory allegations about Damyanidu’s alleged discrimination improperly provide a reasonable
jury only matters of speculation.
As to Lawless, Barbini testified that he made derogatory comments about her age when he
once verbally reprimanded her about her performance in making cold calls to customers and told
her that “if he had his way, he [would] have take[n] [her] to the shed.” 141 But when Defendants’
counsel asked her what she understood that term meant, Barbini replied that she did not understand
it in full, but that she knew it meant “[a] beating . . . for punishment” and that “he was trying to
destroy [her] self-esteem.” 142 Barbini also testified that she thought Lawless made derogatory
comments about her age when he once called the Pleasant Valley branch before 9:00 am and asked

138

(Barbini Dep. Tr. at 26:4–7.)

139

(Id. at 27:18–9.)

140

(Id. at 28:10–32:22, 36:21–42:25.)

141

(Id. at 79:23–83:14, 84:18–85:2.)

142

(Id. at 85:2–25.)

39

her if she was asleep. 143 Barbini further testified she could not recall any other occasion because
she tried to “wipe it out” of her mind as it was not pleasant working with Lawless. 144
However, even when drawing all inferences in Barbini’s favor, Lawless’s comments
without more provide no basis on which a reasonable jury could find an inference of age
discrimination against Barbini. “Neutral comments unrelated to a [p]laintiff’s protected group are
insufficient to give rise to an inference of age discrimination.” Andretta v. Napolitano, 922 F.
Supp. 2d 411, 422 (E.D.N.Y. 2013) (citing Slattery v. Swiss Reins. Am. Corp., 248 F.3d 87, 92 n.
2 (2d Cir. 2001)). “Verbal comments constitute evidence of discriminatory motivation when a
plaintiff demonstrates that a nexus exists between the allegedly discriminatory statements and a
defendant’s decision to discharge the plaintiff.” Pronin v. Raffi Custom Photo Lab., Inc., 383 F.
Supp. 2d 628, 636 (S.D.N.Y. 2005) (citations omitted). Moreover, even if made by decision
makers, stray remarks unrelated to the decision behind plaintiff’s adverse employment action
without more are insufficient to establish a case of employment discrimination. See Danzer v.
Norden Systems, Inc., 151 F.3d 50, 56 (2d Cir. 1998); Campbell v. Alliance Nat’l Inc., 107 F. Supp.
2d 234, 247 (S.D.N.Y. 2000).
To be sure, a reasonable jury could conclude that Lawless’s comments are sophomoric and
impertinent in the workplace. However, the record contains no evidence on which a reasonable
jury could infer Lawless’s comments were motivated by age discrimination against Barbini. For
instance, the record contains no evidence supporting an inference that being asleep at the
workplace before 9:00 a.m. is so closely associated with employees over the age of 40 so that a
reasonable jury could find discriminatory animus. Nor does it contain any evidence doing the same

143

(Id. at 79:23–80:4; 195:22–196:19.)

144

(Id. at 195:4–16; 196:9–197:4.)

40

for the phrase “taking someone to the shed.” Cf. Langel v. Arkansas Foundation for Medical Care,
No. 4:17-cv-00496-KGB, 2021 WL 4027719, at *5 (E.D. Ark. 2021) (record showed assistant
manager previously counseled defendant-supervisor not to use the phrase “don’t make me take
you to my shed and crack my whip” anymore with African American plaintiff-employee because
it could be taken as racially offensive).
Besides, even if the Court were to assume Lawless’s comments did reflect discriminatory
animus, the record indisputably shows that they were made made by a non-decisionmaker—
Lawless, who in fact was terminated alongside Barbini 145—and thus, “as a matter of law, are
insufficient to raise an inference of discrimination.” De la Cruz v. City of New York, 783 F. Supp.
2d 622, 643 (S.D.N.Y. 2011) (collecting cases).
Moreover, the Court notes that Barbini’s other evidence that purportedly supports an
inference of discrimination comes from an affidavit dated August 3, 2020, which she submitted in
responding to the instant motion for summary judgment almost two years after her deposition
testimony on May 3, 2018. Such affidavit may be viewed as self-serving.
The Second Circuit has previously held “that a party cannot create an issue of fact by
submitting an affidavit in opposition to summary judgment that contradicts prior deposition
testimony.” See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 104 (2d Cir. 2010) (citing Perma
Research and Dev. Co. v. Singer Co., 410 F.2d 572, 578 (2d Cir. 1969)). However, if the
allegations in the affidavit, rather than contradicting, explain or amplify prior deposition testimony,
then the affidavit may still create a genuine issue of material fact sufficient to defeat summary
judgment. See Hayes v. N.Y. City Dep’t of Corr., 84 F.3d 614, 620 (2d Cir. 1996). But as
mentioned above, neither mere conclusory allegations, speculation, nor subjective impressions

145

(Lawless Dep. Tr. at 225:11–226:2.; Defs.’ SUMF ¶ 131; Pls. CSUMF ¶ 131.)

41

will provide a sufficient basis for inferring discrimination to defeat summary judgment. See
Conroy, 333 F.3d at 94; Littman, 709 F. Supp. at 466; Cameron, 335 F.3d at 65.
Here, the record shows that some of the relevant allegations in Barbini’s affidavit
contradict her deposition testimony. For example, as mentioned above, Barbini initially testified
that she did not understand in full what “take you out to the shed” meant, but that she understood
it to mean punishment. 146 However, in the affidavit she submitted two years later, Barbini provides
that “[she] did not want to think that this statement was a reference to [her] age at first, but it
clearly was. . . . [H]e was basically implying that he wanted to put me out to pasture like an old
farm animal and that he wanted to give me a beating.” 147 Barbini’s other relevant allegations in
her affidavit seeking to explain or amplify her relevant deposition testimony fair no better, as they
simply reiterate her testimony’s conclusory allegations, speculation, or subjective impressions, or
provide new ones. For example, Barbini averred during her deposition testimony that it was
difficult to explain how Damyanidu and Lawless did not want her working at the Bank because of
her age, particularly because, she now claims in her affidavit that, “Damyanidu was very clever
and would use non-verbal cues to indicate when she did not approve of someone’s appearance or
did not like them in general.” 148 In any event, both statements consist of conclusory allegations
that only provide a reasonable jury with matters of conjecture.
Therefore, the Court grants summary judgment against Barbini’s claims for age
discrimination against Defendants under ADEA and the NYSHRL.

146

(Barbini Dep. Tr. at 85:2–25.)

147

(Barbini Aff. ¶ 33.)

148

(Id. ¶ 26.)

42

IV.

Retaliation
A.

Legal Standards

Title VII, the ADEA, and the NYSHRL protect “the filing of formal charges of
discrimination . . . as well informal protests of discriminatory employment practices.” Littlejohn
v. City of New York, 795 F.3d 297, 317 (2d Cir. 2015) (quoting Sumner v. U.S. Postal Serv., 899
F.2d 203, 209 (2d Cir. 1990)). To make out a prima facie case of retaliation, plaintiff must
establish “(1) participation in a protected activity; (2) that the defendant knew of the protected
activity; (3) an adverse employment action; and (4) a causal connection between the protected
activity and the adverse employment action.” Hicks v. Baines, 593 F.3d 159, 164 (2d Cir. 2010)
(internal quotation marks omitted). “Protected activity is action taken to protest or oppose
statutorily prohibited discrimination.” Natofsky v. City of New York, 921 F.3d 337, 354 (2d Cir.
2019) (quotation marks omitted). Courts also apply the McDonnell Douglas burden shifting
analysis in retaliation claims asserted under Title VII, the ADEA, and NYSHRL. See Reed v. A.W.
Lawrence & Co., 95 F.3d 1170, 1178 (2d Cir. 1996); Schnabel v. Abramson, 232 F.3d 83, 87 (2d
Cir. 2000).
B.

Application
1.

Plaintiffs’ Retaliation Claims for Opposing Sexual Harassment

Defendants contend that Plaintiffs cannot establish a prima facie case of retaliation for
opposing sexual harassment. (Mot. at 31–32.) Defendants do not dispute that Henry’s sexual
harassment complaint against Lawless constitutes protected activity, that the Bank knew about it,
and that Plaintiffs termination was an adverse employment action. (Id.) Yet, Defendants dispute
that (1) Barbini engaged in a protected activity as it was Henry who called the Bank’s ethics
hotline; and (2) there is no causal connection between Henry’s sexual harassment complaint and
Plaintiffs’ termination because the Bank terminated them for violating the Notary Policy. (Id.)
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In opposition, Plaintiffs contend that Barbini did participate in a protected activity because
she allegedly met and complained about Lawless’s sexual harassment with Lawless and
Damyanidu separately. (Resp. in Opp’n at 33.) Additionally, Plaintiffs argue that the temporal
proximity between Henry’s sexual harassment complaint and their termination, together with the
existing dispute of material fact regarding the existence of the zero-tolerance policy for violations
of the Notary Policy, precludes summary judgment against their retaliation claims for opposing
sexual harassment. (Id. at 33–35.)
After due consideration, the Court concludes that a material dispute of fact precludes
summary judgment against their retaliation claims for opposing sexual harassment.
First, contrary to Defendants’ assertion, Barbini’s conduct in aiding Henry with her sexual
harassment complaint against Lawless constitutes a protected activity. “[A]ctivities protected
under Title VII and NYSHRL fall into two broad categories: (1) opposing any practice made an
unlawful employment practice by Title VII or the NYSHRL (an “opposition claim”) or (2) making
a charge, testifying, assisting, or participating in any manner in an investigation, proceeding or
hearing under Title VII or the NYSHRL (a “participation claim”).” Rice v. Smithtown Volkswagen,
321 F. Supp. 3d 375, 389 (E.D.N.Y. 2018) (emphasis and citations omitted). “The law is clear that
informal complaints to management about discriminatory activity fall within the ‘opposition’
component of the protected activity element.” Id. (citing Littlejohn v. City of New York, 795 F.3d
297, 318–19 (2d Cir. 2018)); see also Falcon v. City Univ. of New York, 263 F. Supp. 3d 416, 418–
19 (E.D.N.Y. 2017) (“The law also does not require that the employee file a formal complaint
when opposing the discriminatory practices—an informal complaint is sufficient.”).
Notably, employees who are required by their job duties to report or investigate other
employees’ complaints of discrimination are not generally engaging in protected activity “because

44

merely to convey others’ complaints of discrimination is not to oppose practices made unlawful
by Title VII.” Littlejohn, 795 F.3d at 318. “But if an employee—even one whose job
responsibilities involve investigating complaints of discrimination—actively ‘support[s]’ other
employees in asserting their Title VII rights or personally ‘complain[s]’ or is ‘critical’ about the
‘discriminatory employment practices’ of her employer, that employee has engaged in a protected
activity[.]” Id. (alternations in original) (citations omitted).
Here, the parties do not dispute that Barbini did more than refer Henry to the Bank’s ethics
hotline to report Lawless. Upon Henry’s request, Barbini was present for both, the meeting with
Damyanidu on the Monday following the text message incident, and during Henry’s interview
with McMichael, to actively support Henry in asserting a sexual harassment complaint. 149 Thus,
Barbini’s active support for Henry during her two meetings with Defendants constitute protected
activity for purposes of Plaintiffs’ retaliation claims for opposing sexual harassment.
Second, for purposes of establishing a prima facie case, the Court agrees with Plaintiffs
that the record contains sufficient evidence of a causal connection between their protected activity
and termination. The record does show a temporal proximity between Plaintiffs’ participation in
Henry’s sexual harassment complaint (August 14 and 17, 2015) and their termination (September
9, 2015). 150 See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (noting that
“[t]he temporal proximity of events may give rise to an inference of retaliation for the purposes of
establishing a prima facie case of retaliation under Title VII[.]”).
And third, while Defendants aver that the Bank terminated Plaintiffs for a legitimate, nondiscriminatory reason (i.e., for violating the Notary Policy), the Court is of the view that the record

149

(Defs.’ SUMF ¶¶ 49, 54; Pls.’ CSUMF ¶¶ 49, 54.; Damyanidu Dep. Tr. at 71:21–72:8.)

150

(Defs.’ SUMF ¶¶ 199, 122; Pls. CSUMF ¶¶ 199, 122.)

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contains additional evidence other than temporal proximity from which a reasonable jury could
conclude that the Bank’s proffered reason is pretext. For one thing, as already noted above, there
is a material dispute of fact concerning the existence of the zero-tolerance policy towards those
employees who violated the Notary Policy. See Part III, A, 1, supra. Such dispute by itself
precludes summary judgment because the Court is unable to make credibility determinations at the
summary judgment stage. Id.
But further, even when assuming that the zero-tolerance policy in fact exists, the record
shows that after Barbini reported to Damyanidu that Lawless asked her to notarize documents in
violation of the Notary Policy, Fee only interviewed Barbini and Henry during the subsequent
investigation despite there being other notaries working under Lawless’s supervision. 151 Indeed,
the parties do not dispute that (1) Lawless managed two of the Bank branches, each with multiple
notaries; 152 (2) Lawless testified about how he maintained the notary practices of the last branch
manager; 153 and (3) Robustelli and Lawless both instructed Henry and Barbini, respectively, to
notarize documents without the customer being present. 154 From these facts, a reasonable jury
could infer that Plaintiffs could not have been the only notaries who were instructed to violate the
Notary Policy. A reasonable jury could also find that Fee’s investigation into the notary practices
of the two branches was not impartial because it solely targeted Barbini and Henry—the two same
employees who participated in a sexual harassment complaint against Lawless.
Therefore, the Court denies summary judgment against Plaintiffs’ retaliation claims for
opposing sexual harassment under Title VII and the NYSHRL.
151
152

(Fee. Dep. Tr. 31:2–5; Lawless Dep. Tr. 109:3–20; Joint Pls.’ Counsel Affs., Ex. C.)
(Defs.’ SUMF ¶ 3; Pls. CSUMF ¶ 3.)

153

(Lawless Dep. Tr. at 129:11–131:3.)

154

(Joint Pls.’ Counsel Affs., Ex. AA.)

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2.

Barbini’s ADEA Retaliation Claim for Opposing Age Discrimination

Defendants appear to contend that Barbini cannot establish a prima facie case of retaliation
for opposing age discrimination because she fails to establish all but one element—the adverse
employment action. (Mot. at 30–32.) They indicate that Barbini never engaged in any protected
activity because she never made any formal or informal complaint about Damyanidu and
Lawless’s alleged age discrimination against her. (Id. at 31.) Defendants also aver that Barbini
fails to establish any causal connection between any purported protected activity and her
termination because she was terminated for a violation of the Notary Policy and not due to her age.
(Id. at 31–32.)
In opposition, Barbini contends that she did participate in a protected activity when she
allegedly met with Damyanidu and Lawless separately to complaint about their treatment towards
her based on her age. (Resp. in Opp’n at 33–34.) Barbini also argues that not only is there a
temporal proximity between her termination and her meeting with Damyanidu during which she
requested her retirement package, but that the record shows she was subjected to an ongoing and
continuing course of age discrimination that culminated in her termination. (Id. at 34–35.)
But after thoroughly reviewing the record, the Court concludes that Barbini fails to
establish a prima facie case for her retaliation claims for opposing age discrimination, particularly
because even when viewing the evidence in Barbini’s favor, nowhere in the record is there any
reference about her reporting any alleged age discrimination.
Barbini admits that she never raised any alleged age discrimination with HR because she
purportedly did not trust the department. 155 Yet, she nonetheless avers that she met with
Damyanidu and Lawless separately and complained specifically about their treatment towards her

155

(Defs.’ SUMF ¶ 143; Pls.’ CSUMF ¶ 143.)

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based on her age. 156 However, the record shows that Barbini proffers inconsistent statements on
these matters and that she continues to rely on her subjective impressions and conclusory
allegations in attempting to raise an issue of fact.
Barbini asserts that the two meetings to which she refers include: (1) the May 1, 2015
meeting with Lawless, during which she complained about his comment that “if it were up to
[him], [he] would take [her] to the shed”; and (2) the August 21, 2015 meeting with Damyanidu—
the same meeting during which she initially brought up how Lawless instructed her to notarize
documents outside the presence of customers. (Resp. in Opp’n at 35.)
Regarding her meeting with Lawless, Barbini testified that on May 1, 2015, she emailed
Lawless to request an individual meeting with him because she was embarrassed by his reprimand
the day before. 157 Lawless wanted Barbini to “ignore the customers” from 10:00 a.m. to 11:00 a.m.
so she could make more cold calls to customers and increase sales. 158 Barbini represented that she
made the cold calls as instructed, but that she also had to stop whenever she saw customers waiting
at the bank. 159 For that reason, Lawless reprimanded her for being insubordinate in front of other
co-workers and told her that “if he had his way, he [would] take [her] to the shed.” 160 Barbini
requested the May 1st meeting because she wanted to know why Lawless treated her like that in

156

(Barbini Aff. ¶¶ 32, 58–59.)

157

(Barbini Dep. Tr. at 82:25–83:25.)

158

(Id. at 80:23–81:17.)

159

(Id.)

160

(Id. at 83:9–25.)

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front of others and was so ruthless as she did not deserve it. 161 At the meeting, Lawless told Barbini
that he stood by everything he said, and that “if he had his way, he would taker [her] to the shed.” 162
As the Court already noted above in granting summary judgment against Barbini’s age
discrimination claims, even when drawing all inferences in favor of Barbini, the record lacks any
evidence from which a reasonable jury could conclude that Lawless’s comments were motivated
by age discrimination against Barbini. Moreover, Barbini points to no evidence from which a
reasonable jury could even infer that she was complaining about age discrimination to Lawless.
The record only shows that she testified that she was embarrassed for being reprimanded in front
of other employees and that she thought she did not deserve such harsh reprimand. Without more,
Barbini’s allegations that she complained to Lawless about age discrimination during the May 1,
2015 meeting are conclusory and insufficient to raise an issue of fact.
Likewise, Barbini’s allegations about her August 21, 2016 meeting with Damyanidu fail
for similar reasons. After Barbini testified how she reported to Damyanidu that Lawless was asking
her to notarize documents without the signatory customers present, Defendants’ counsel asked
Barbini if she recalled saying anything else to Damyanidu during that conversation. 163 Barbini
responded: “I think I told her, I know you don’t really want me on your team, just give me a
package and I leave.” 164 But upon further questioning by Defendants’ counsel regarding whether
Barbini ever told Damyanidu that she felt discriminated against or said words to that effect, Barbini
testified that she felt intimidated by Damyanidu and admitted that she never told Damyanidu about

161

(Id. at 84:11–17.)

162

(Id. at 84:23–85:2.)

163

(Id. at 145:8–11.)

164

(Id. at 145:12–14.)

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how she felt she was being treated unfairly in any way. 165 As such, even when drawing all
inferences in favor in Barbini’s favor, the Court is of the view that Barbini fails to adduce any
evidence upon which a reasonable jury may infer that she specifically complained about age
discrimination to Damyanidu.
To be sure, Barbini also claims in her affidavit—submitted two years after her deposition
testimony—that she told Damyanidu during the same meeting, in sum or substance, that she knew
Damyanidu did not want her there and “was looking to replace her with one of her younger
friends,” among other things. 166 However, the Court need not consider these claims in the affidavit
because they are both inconsistent with Barbini’s relevant deposition testimony and also represent
Barbini’s subjective impressions and speculation of what she believes she told Damyanidu. See
Gorzynski, 596 F.3d at 104; Conroy, 333 F.3d at 94.
Because Barbini fails to establish the first element of a prima facie case of her retaliation
claims for opposing age discrimination, the Court grants summary judgment against such claims.
See O'Connor, 517 U.S. at 311–12.
V.

Barbini’s Hostile Work Environment Claims Based on Age Discrimination
A.

Legal Standards

The standards for evaluating hostile work environment claims are identical under Title VII,
the ADEA, and the NYSHRL. See Kelly v. Howard I. Shapiro & Assocs. Consulting Engineers,
P.C., 716 F.3d 10, 14 (2d Cir. 2011). To prevail on a hostile work environment claim, plaintiffs
must show that “the workplace is permeated with discriminatory intimidation, ridicule, and insult
that is sufficiently severe or pervasive to alter the conditions of the victim’s employment and create

165

(Id. at 147:13–149:12.)

166

(Barbini Aff. ¶¶ 53, 58–59.)

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an abusive working environment.” Littlejohn, 795 F.3d at 320–21 (citations omitted). “This
standard has both objective and subjective components: the conduct complained of must be severe
or pervasive enough that a reasonable person would find it hostile or abusive, and the victim must
subjectively perceive the work environment to be abusive.” Id. at 321. Significantly, the conduct
that creates a hostile work environment must be motivated by the plaintiff’s protected
characteristic. See Brown, 257 F.3d at 252 (“It is axiomatic that mistreatment at work . . . through
subjection to a hostile work environment . . . is actionable under Title VII only when it occurs
because of an employee’s sex, or other protected characteristic.”).
Courts assess a work environment’s hostility based on the totality of the circumstances.
See Patane v. Clark, 508 F.3d 106, 113 (2d Cir. 2007) (citations omitted). In assessing the totality
of the circumstances, courts may consider the following factors: (1) the frequency of the
discriminatory conduct; (2) its severity; (3) whether it is threatening and humiliating, or a mere
offensive utterance; and (4) whether it unreasonably interferes with an employee’s work
performance. Id. Generally, to constitute a hostile work environment, “incidents must be more than
episodic; they must be sufficiently continuous and concerted in order to be deemed pervasive.”
Sotomayor v. City of New York, 862 F. Supp. 2d 226, 261 (E.D.N.Y. 2012), aff’d, 713 F.3d 163
(2d Cir. 2013). Isolated acts, “unless very serious, do not meet the threshold of severity or
pervasiveness.” Id. (citations omitted).
B.

Application

Defendants contend that Barbini’s hostile work environment claims based on her age fails
because there is no evidence of Defendants’ hostility towards Barbini based on her age. (Mot. at
35.) They also contend that even if the challenged conduct Barbini avers was in fact “hostile” or
“abusive”, her claims still fail because the conduct does not qualify as sufficiently severe or
pervasive and, at best, consists of an isolated incident. (Id.)
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In opposition, Barbini argues that there is sufficient evidence that Defendants subjected her
to a hostile work environment based on her age. 167 She claims that Damyanidu and Lawless
subjected her to harassment that was severe and went for almost a year. (Resp. in Opp’n at 36.)
She also claims that she endured “months of torment” after both Damyanidu and Lawless
undermined her position, threatened her job, subjected her to insulting comments, and falsely
accused her of misconduct. (Id. at 36–37.)
After due consideration, the Court concludes that even when drawing all inferences in favor
of Barbini, the record contains no evidence from which a reasonable jury could conclude that she
was subjected to a hostile work environment based on her age.
First, Barbini fails to identify the purported series of “continuous and concerted events”
which support her hostile work environment claim. Instead, she merely provides the conclusory
allegation that “Defendants subjected [her] to months of torment by undermining her position,
threatening her job, subjecting her to insulting comments, and falsely accusing her of misconduct”
and cites generally to her handwritten notes and the affidavit she submitted in opposing summary
judgment as support. (See Resp. in Opp’n at 37.)
And second, to the extent Barbini argues that the same interactions with Damyanidu and
Lawless she claimed showed age discrimination also support her hostile work environment claims,
167
The Court notes that both parties in their respective briefs mention in passing that both Henry and Barbini
assert claims for hostile work environment based on gender. (See, e.g., Mot. at 26 (arguing against Plaintiffs purported
hostile work environment claim based on gender); Resp. in Opp’n at 36–37 (arguing in favor of Barbini’s hostile work
environment claim based on age but titling section “PLAINTIFFS WERE SUBJECTED TO A HOSTILE WORK
ENVIRONMENT”); see also id. at 37 (“Here, there is clearly sufficient evidence that the Defendants subjected
Plaintiff Barbini to a hostile work environment based on her age and gender.” (emphasis added).)

As previously discussed, Plaintiffs’ counsel represented at the January 24, 2020 premotion conference that
there were only fourteen causes of action in this case after they withdrew six of them. Based on the substance of
parties’ briefing, particularly Plaintiffs’ failure to argue against summary judgment on the hostile work environment
claims based on gender, the Court construes that such claims were not among the fourteen causes of action asserted.
But even if the Court were to address such claims—assuming arguendo that Plaintiffs properly exhausted them, a
review of the record fails to reveal any evidence of any discriminatory intimidation, ridicule, and insult towards
Plaintiffs based on their gender that is sufficiently severe or pervasive.

52

she fails to persuade the Court. As already discussed, the record contains no evidence from which
a reasonable jury could conclude that Damyanidu or Lawless acted with age-based discriminatory
animus—much less that the “workplace [was] permeated with discriminatory intimidation,
ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of [her]
employment.” Harris, 510 U.S. at 21; cf. Preuss v. Kolmar Laboratories, Inc., 970 F. Supp. 2d
171, 185 (S.D.N.Y. 2013) (denying summary judgment against hostile work environment claim
because record showed supervisor harassed plaintiff based on his age on a daily-basis by calling
plaintiff “old man”, asking him when he was going to retire so he could be replaced with “young
blood”, yelling at him “useless, worthless, [and] incompetent,” and saying he hoped the swine flu
virus got rid of the “old timers” at work.)
Therefore, the Court grants summary judgment against Barbini’s claims for hostile work
environment based on age discrimination under ADEA and the NYSHRL.
CONCLUSION
For the foregoing reasons, Defendants’ motion for summary judgment is GRANTED in
part, DENIED in part. Defendants’ motion is GRANTED as to (1) Barbini’s claims for
discrimination based on gender under Title VII and the NYSHRL; (2) Barbini’s claim for
discrimination based on age under the ADEA and the NYSHRL; (3) Barbini’s retaliation claims
for opposing age discrimination under the ADEA and the NYSHRL; and (4) Barbini’s hostile work
environment claims under the ADEA and the NYSHRL. Defendants’ motion is DENIED as to (1)
Henry’s claims for discrimination based on gender under Title VII and the NYSHRL; and (2)
Plaintiffs’ claims for retaliation for opposing sexual harassment under Title VII and the NYSHRL.
The parties are directed to appear for a telephonic pre-trial conference on March 4, 2022, at 2:00
p.m. To access the telephonic pre-trial conference, please follow these instructions: (1) Dial the
meeting number: [phone]; (2) enter the Access Code: 1231334#; (3) press pound (#) to
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enter the conference as a guest. The Clerk of Court is directed to terminate the motion at ECF No.
139.
Dated: January 14, 2022
White Plains, NY

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