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February 2, 1994



The opinion of the court was delivered by: ARTHUR D. SPATT


SPATT, District Judge.

 The issues in this case concern a charge of discrimination in the setting of the consumer credit division of a major bank. The plaintiff, a collection representative at the defendant National Westminster Bank, contends that she was denied promotion because she is an Hispanic female.


 This action alleging employment discrimination, was brought claiming violation of Title VII of the Civil Rights Act of 1964 (42 U.S.C. § 2000e et seq.). In a document entitled "Amendment to Complaint" dated October 16, 1991, the plaintiff apparently added a cause of action pursuant to 42 U.S.C. § 1983. It appears that the Section 1983 cause of action was not pursued, and this bench trial is solely based on the Title VII cause of action.

 The plaintiff Jeanette Rosa ("the plaintiff" or "Ms. Rosa") was first employed by the defendant National Westminster Bank ("the defendant" or "the Bank") as a credit card production clerk in 1978 at a salary of $ 7500 per year and received yearly raises to approximately $ 11,000. In November 1983 she became a collection representative trainee in the Bank's Consumer Credit Division ("the Department"). She had no prior credit or collection experience. During 1983 and 1984, the plaintiff was the recipient of commendations, including three awards and three monetary grants. The standard job progression within this department was (1) collection representative trainee, then (2) "collection representative" and then (3) "senior collection representative."

 On November 5, 1984, the plaintiff was promoted from trainee to collection representative. On June 24, 1987, the plaintiff was placed on a ninety-day probationary period for alleged insubordination, followed by a second probationary period effective May 3, 1988. At the expiration of this probationary period in August 1988, she commenced a disability leave of absence in connection with a pregnancy. On April 17, 1989, after giving birth and while still out on disability leave, the plaintiff commenced an eight week parental leave. The plaintiff then requested an extended long-term leave of absence. She was then granted a one-year parental leave of absence to expire on August 18, 1989. A request by the plaintiff for a further extension was denied. She was advised to return to work on August 18, 1989. The plaintiff did not return to her employment with the bank on that date and she was terminated.


 This opinion and order includes the Court's findings of fact and conclusions of law as required by Fed. R. Civ. P. 52(a) (see also Colonial Exchange Ltd. Partnership v. Continental Casualty, 923 F.2d 257 [2d Cir. 1991]).

 During this discussion, the Court will make findings of fact which will be supplemented by additional findings later in the opinion.

 A collection representative in the Consumer Credit Division of the Bank, involving Visa credit cards, attempts to collect delinquent accounts mostly by way of the telephone and also by mail. When the customers mail in the payment, the collector gets credit for "moving the balance" (Tr. at p. 15). *fn1" There are delinquent accounts that range from 30-day accounts to 180-day accounts. The same procedures are used to collect all the delinquent accounts.

 At the Bank, employees are evaluated in a document called a "Non-Exempt Performance Appraisal Form." It is the Bank's policy to review each employee's performance on a yearly basis. The first such appraisal for the plaintiff as a collection representative trainee was dated October 16, 1984 (Plf's Exh. 2). The report gave the plaintiff generally good ratings as to work proficiency. For example:


"Jeanette has shown steady progress in developing her knowledge of the Visa product and the various collection laws. In addition, she has shown a good ability to apply this knowledge towards the development of her collection technique.


. . . .


Jeanette offers a high level of cooperation and responds positively to organization needs."

 However, even in 1983 and 1984, at the beginning of her credit collection career as a trainee, there was a problem with Ms. Rosa's punctuality and absences, as noted in the October 1984 appraisal form:


"Occasionally late. Attendance needs some improvement. Explanation 3 incidents, 6 days out. Jeanette needs to improve on her punctuality."

 On the other hand, as stated above, the plaintiff's work performance was good. According to her former manager PETER ROMPF, who left the Bank in 1984, her collection ability was outstanding. Rompf also testified that some people were promoted from trainee to senior collector in less than three years. In fact, it only took Rompf one year to move up from trainee to senior collector. Of course, Rompf had prior credit collection experience.

 In support of her claim of discrimination, the plaintiff points to the promotion of other employees from collection representative to senior collector in less than three years. Two such persons were Jack Chieffo and Daniel Mazza. In this regard, the Court notes that the job description for senior collection representative (Plf's Exh. 5) includes the statement that the job "requires minimum of three years collection experience." Mr. Rompf testified, however, that he did not require an employee to wait for that three year period. In fact, he testified that based on what he had seen of the plaintiff's performance evaluations when he was at the bank in 1983, he definitely would have promoted the plaintiff to senior collector. However, it is clear that Mr. Rompf had little personal knowledge of the plaintiff's performance (see Tr. at p. 57).

 During the plaintiff's tenure as a collection representative she was, as of March 4, 1985, one of the most effective collectors (see Plf's Exh. 11) and on May 6, 1985, was given congratulations for excellent results (see Plf's Exh. 12).

 The Court notes that during the plaintiff's employment at the Bank, she received a National West Policy Manual (Plf's Exh. 8), which included the following admonition with regard to attendance and punctuality:


"Attendance And Punctuality


You are part of a team which works together to service our customers and conduct our business. It is important for you to be at your job on time. Tardiness affects the quality of customer service and places a burden on your fellow workers.


If you are going to be late or absent, it is essential that you notify your supervisor by phone within a half hour of your starting time. You will not be paid for absences from work during your first three months of employment.


Your supervisor may require a doctor's note if, due to illness, you are out of work for three days or more. In addition, if you are out ill for an extended period of time, you should notify your supervisor of your progress at least once a week."

  In addition, when Ms. Rosa commenced her employment as a collector trainee she received a copy of the "Consumer Credit Division -- Policy Manual" (Plf's Exh. 9), which included the following directions on business hours and attendance: "BUSINESS HOURS Fair debt collection laws regulating our industry provide for collection calls between the hours of 8:00 a.m. and 9:00 p.m. Our work day commences at 8:30 a.m. with our full-time staff working until 5:00 p.m. and part-time staff working from 5:00 until 9:00 p.m. ATTENDANCE This is a Division Policy POLICY which is based on the last twelve months attendance: 0-3 incidents - acceptable 4 incidents - oral warning 5 incidents - first written warning 6 incidents - second written warning 7 incidents - probation In the event you are ill and unable to report for work, or you will be late, please call (516) 531-7174 between 8:15 a.m. and 9:00 a.m. and speak to the department manager or secretary."


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