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BOYCE v. BANK OF NEW YORK

September 13, 2005.

YVONNE BOYCE, Plaintiff,
v.
BANK OF NEW YORK, Defendant.



The opinion of the court was delivered by: KEVIN FOX, Magistrate Judge

REPORT and RECOMMENDATION

TO THE HONORABLE JED S. RAKOFF, UNITED STATES DISTRICT JUDGE

I. INTRODUCTION

  Yvonne Boyce ("Boyce") is a black woman. She commenced this action against her former employer, the Bank of New York ("BNY"), alleging that BNY violated Title VII of the Civil Rights Act of 1964 and the Age Discrimination in Employment Act of 1967 ("ADEA") when, based on her race and age, it: (a) terminated her employment, after approximately 27 years, while offering whites, who worked on a project with her, the opportunity to transfer to other BNY positions; and (b) retained employees younger than Boyce in positions similar to the position that Boyce held immediately prior to her termination, for which Boyce maintains she was qualified. Boyce also alleges that, due to her race, she was not given the job title Work Coordinator, while she performed the tasks associated with that job title for BNY's Accounts Payable Department ("APD"). As a result of not being given the appropriate job title, Boyce attempted to transfer from APD. However, Boyce contends that because of her race, BNY delayed effecting a transfer for her. Boyce also alleges that in 2001, BNY placed her in a racially segregated workplace setting in its Avenue of the Americas facility. In addition, Boyce contends that BNY retaliated against her for complaining to senior management, in 2000, about her inability to secure a transfer between BNY units and her inability, in 2001, to get BNY personnel records changed to reflect accurately her job title. According to Boyce, the retaliation was made evident through the failure of APD supervisory personnel to prepare Boyce's annual performance evaluation timely, so that she might receive a salary increase in November 2000, at the end of her normal twelve-month performance review cycle. Instead, Boyce contends the responsibility for preparing her performance evaluation was shifted to supervisory personnel in BNY's Alternative Delivery and Technological Support Division ("ADTSD"), a BNY unit into which Boyce transferred in December 2000. As a consequence, Boyce's annual salary adjustment was delayed for ninety days.

  Before the Court is BNY's motion for summary judgment, made pursuant to Fed.R.Civ.P. 56. According to BNY, certain claims of unlawful discrimination made by Boyce in this action are without the applicable statute of limitations. With respect to the remaining claims of unlawful discrimination, BNY alleges that Boyce is unable either to: (a) establish a prima facie case of race or age discrimination; or (b) establish that the reasons proffered by BNY for its conduct are pretextual. Therefore, BNY contends it is entitled to judgment as a matter of law. Boyce opposes the defendant's motion for summary judgment; it is addressed below.

  II. BACKGROUND

  In October 2000, Nancy Gons ("Gons"), BNY vice president, Retail Banking Sector, ADTSD, interviewed Boyce for an administrative position in ADTSD. At that time, Boyce was seeking to transfer out of APD. Gons explained to Boyce that she needed someone to assist her and the ADTSD staff as it prosecuted BNY's branch automation project ("Project"). The Project involved upgrading BNY's computer and telecommunications network for approximately 384 BNY facilities. In order for Boyce to fulfill her assignment within ADTSD, Gons explained to Boyce, during their initial interview, that Boyce would need to attend training classes to enhance her computer software skills.

  Boyce was eager to transfer from APD at the time she met with Gons because she had discovered that BNY's organizational chart had, for several years, identified her job title as Work Coordinator, while APD identified her job title as Senior Clerk. Boyce requested that her job title be changed by APD to reflect that she was performing the more responsible tasks of a Work Coordinator. According to Boyce, a white male employee in APD, Paul Davies ("Davies"), had received the job title Work Coordinator, and she had not. BNY denies that Davies ever held the job title Work Coordinator. In any event, in Boyce's estimation, BNY acted in a dilatory manner regarding her request to have her job title changed. Consequently, Boyce complained to BNY senior management. BNY records reflect that Boyce's job title was changed to Work Coordinator in July 2000. Boyce denies this. She maintains the change occurred in 2001.

  Gons, who is a white woman, selected Boyce to fill the position for which Gons interviewed her. At the time she made the selection, Gons was aware that Boyce was 48 years of age. Gons was one year older.

  In December 2000, Boyce joined ADTSD. Thereafter, Boyce attended two training classes, where she became knowledgeable in the following computer operating system and software programs: Windows, Lotus, Microsoft Word and Excel. Boyce recalls that when she joined ADTSD, she was responsible for: (i) attending Project meetings, where she took notes and recorded attendance; (ii) scheduling conference calls; and (iii) corresponding with BNY branches, in order to advise them of scheduled meetings and conference calls. Boyce was also responsible for E-mail transmissions. Although Boyce reported directly to Gons, Boyce contends that she also assisted other ADTSD project managers.

  From December 2000, when Boyce joined ADTSD, until September 11, 2001, Boyce was assigned to work at BNY's Barclay Street, Manhattan, New York, facility. However, as a result of the events occurring on September 11, 2001, the Barclay Street facility became uninhabitable. In or about October 2001, ADTSD relocated to 620 Avenue of the Americas, also in Manhattan. At the BNY Avenue of Americas facility, Gons recalls that Boyce, along with BNY officers and administrative staff, worked in an open area, that is, a workspace without walls or other dividers. According to Gons, the open workspace was occupied by white and black BNY employees. Boyce recalls that the open workspace was populated solely by black employees, after two white employees, who worked in that area for a short stint, were transferred. Boyce also recalls that she and other non-white BNY employees jokingly referred to their open workspace as "the plantation." Boyce testified, during a pretrial deposition taken in connection with the instant action, that she believed the seating arrangement in the open workspace was discriminatory because "you had basically one predominant race in there." However, Boyce testified further that she never complained to BNY that the open workspace environment was discriminatory.

  By in or around July 2002, according to Gons, Boyce's facility with the computer software programs noted above had not improved adequately. Therefore, Gons counseled Boyce orally and provided Boyce with a written performance evaluation through which Gons instructed Boyce "to improve her working knowledge of the Bank's computer network including Microsoft Word, Excel, PowerPoint, and Lotus Notes programs and applications." The written performance evaluation was submitted to the Court in connection with the instant motion. The document contains the following handwritten notations: "Given to Yvonne but she did not sign and return." Boyce alleges that when Gons presented the performance evaluation to her, it did not reflect Boyce's job title accurately. Therefore, at Gons' direction, Boyce did not sign the document, in order that Gons might investigate the matter of Boyce's correct job title. Boyce contends that Gons never returned to her with the performance evaluation. Later in the year 2002, Gons also found it necessary to counsel Boyce "for prematurely scheduling conference calls without confirming [Gons'] availability and avoiding incoming telephone calls by sending them automatically to voicemail."

  By November 2002, Gons alleges that she began to assign Boyce secretarial tasks that were not computer-related, because Gons found that Boyce "was not becoming proficient in the Bank's computer network and other systems." Gons maintains that she assigned plaintiff's computer-related tasks to Emiliana Echeverria ("Echeverria"), a BNY administrative secretary. Boyce challenges this assertion. According to Boyce, Gons never gave her computer-related assignments and, furthermore, Boyce contends she never observed Gons give any computer-related assignments to Echeverria. Boyce alleges that Gons "barely spoke to ? Echeverria," who, Boyce says, worked for two other BNY employees: Greg Finlay and Mike Emery.

  Gons recalls that in or about March 2003, ADTSD completed the branch automation assignment. Therefore, it was necessary to reduce the ADTSD workforce. Gons reviewed the qualifications of the ADTSD administrative staff and determined that Boyce had less seniority in ADTSD than the other administrative secretaries: Echeverria, who BNY contends is African-American and Cuban, and was born in 1965; and Irene Diaz, whom BNY maintains is Hispanic, and was born in 1958. Gons contends that Echeverria and Diaz each possessed computer-related skills that were superior to those that Boyce possessed, since Echeverria and Diaz were proficient in Microsoft Word, Excel and other computer programs. Gons weighed these factors as well as Boyce's "poor job performance during the latter half of 2002 for which [Gons had previously] ...


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