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Russo-Lubrano v. Brooklyn Federal Savings Bank

January 12, 2007

DONNA RUSSO-LUBRANO, PLAINTIFF,
v.
BROOKLYN FEDERAL SAVINGS BANK, AND MARC LENO, RICHARD A. KIELTY, AND JOSEPH RAUCCI, AS AGENTS OF BROOKLYN FEDERAL SAVINGS BANK AND IN THEIR INDIVIDUAL CAPACITIES, DEFENDANTS.



The opinion of the court was delivered by: Sifton, Senior Judge.

MEMORANDUM OPINION AND ORDER

On February 15, 2006, plaintiff Donna Russo-Lubrano filed a complaint against Brooklyn Federal Savings Bank ("BFSB" or "the bank") and employees Marc Leno, Richard Kielty, and Joseph Raucci,*fn1 as agents of BFSB and in their individual capacities, alleging that the defendants were liable for damages on the following grounds: (I) discrimination on the basis of sex, in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 ("Title VII"); (II) retaliation, in violation of Title VII, 42 U.S.C. § 2000e-3(a); (III) discrimination on the basis of pregnancy, in violation of Title VII, 42 U.S.C. § 2000e(k); (IV) conspiracy, in violation of the Civil Rights Act of 1871, 42 U.S.C. § 1985(3); (V) discrimination on the basis of age, in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 623 ("ADEA"); (VI) discrimination on the basis of sex, in violation of the Equal Pay Act of 1963, 29 U.S.C. § 206 et seq.; (VII) discrimination, in violation of the Employee Retirement Income Security Act, 1963, 29 U.S.C. § 1000 et seq. ("ERISA"); (VIII) discrimination on the basis of sex, in violation of New York State Executive Law § 296; (IX) retaliation, in violation of New York State Executive Law § 296; (X) discrimination on the basis of pregnancy, in violation of New York State Executive Law § 296; (XI) discrimination on the basis of gender, in violation of New York City Administrative Code § 8-107 and § 8-502; (XII) retaliation, in violation of New York City Administrative Code § 8-107 and § 8-502; (XIII) discrimination on the basis of pregnancy, in violation of New York City Administrative Code § 8-107 and § 8-502; (XIV) intentional infliction of emotional distress and intentional interference with employment contract under New York common law. Now before this Court is defendants' motion to dismiss Counts (I), (II), (IV), (V), (VII), (VIII), (IX), (XII), and (XIV) in their entirety and Counts (I), (II), (III), (V), (VI), (VII), (VIII), (IX) and (X) as to the individual defendants. For the reasons set forth below, defendants' motion is granted, with leave to amend the complaint as noted.

Background

The following facts are drawn from the complaint and viewed in the light most favorable to the plaintiff, the non-moving party. See Patel v. Searles, 305 F.3d 130, 135 (2d Cir. 2002).

From 1984 until February 2005 plaintiff was employed by BFSB. Throughout her career, she was consistently rated an excellent employee and regularly received the highest pay increases available, as well as bonuses which "exceeded the usual limits." Complaint, § 17. In 2004, plaintiff, who was forty years old at the time, made known to the defendants that she was pregnant. She requested and received the standard twelve week maternity leave.*fn2 At that point she was an Assistant Vice President, was vested in the company pension plan and had an active 401(k) account. See 26 U.S.C. § 401(k).

After announcing her pregnancy, plaintiff was subjected to discriminatory comments and treated in a hostile and negative manner by her supervisors, based on her gender, pregnancy and status as a working mother. This resulted in a "hostile working environment and affected the terms and conditions of her employment." Complaint, § 22.

Plaintiff's last day of work before her maternity leave was October 8, 2004. At all times she kept her employers (in particular, defendants Leno and Kielty) informed that she would be returning to work after her leave. Plaintiff was due to return to work on January 19, 2005.

On October 21, 2003, plaintiff gave birth by caesarean section and suffered medical complications. The child was placed in a prenatal intensive care unit and upon discharge required oxygen treatment six times daily, administered by the plaintiff. Plaintiff made her employers, including Leno and Raucci, aware of the situation by phone and fax.

Twice in December 2004, while still on leave, plaintiff returned to BFSB to assist on projects which she knew she would be involved in upon her return. On January 3, 2005, plaintiff's child became very ill with a respiratory syncytial virus that required weekly doctor visits. The doctor also directed that the infant not be taken out of the home or interact with others to prevent its contracting illnesses. As a result, the infant's baptism was cancelled and child care could not be provided by third parties. Plaintiff promptly notified Leno of these issues. Plaintiff also informed the bank that she would be filing for disability payments through her private insurer and which would last through February 2005. Plaintiff later filed for disability with New York State which also approved her claim and she made her employer aware of the approval. During this period of time, plaintiff spoke to defendant Leno at least once a week and, among other things, discussed her health and the health of her child.

On February 22, 2005, plaintiff was terminated by BFSB. Plaintiff's bonus for 2004 was reduced pro-rata based on her maternity leave.*fn3 In addition, plaintiff's termination precluded her from "fully" availing herself of the employee stock benefit plan which resulted from the bank's becoming a public company, a process which had begun before she was terminated. Complaint, § 35.

Defendants never formally provided plaintiff with a reason for plaintiff's termination. However, in conversations with unidentified representatives of the defendants after her termination, plaintiff was informed that she was fired "due to her child's health and her status as a working mother";*fn4 to plaintiff's knowledge, no male employees of the bank have been terminated due to their children's health or their status as a working parent. Complaint, § 30.

Procedural History

On March 15, 2005, plaintiff filed a verified complaint with the Equal Employment Opportunity Commission ("EEOC") and the New York Division of Human Rights Equal Employment Opportunity Commission, alleging discrimination and retaliation by the employees of BFSB. After requesting a 'right to sue' letter from the EEOC, plaintiff was provided with such a letter on October 21, 2005. Plaintiff filed suit in this Court on February 15, 2006. Defendants filed the present motion to dismiss on May 19, 2006.

Discussion Jurisdiction

The court has federal question jurisdiction over Counts I, II, III, IV, V, VI and VII pursuant to 28 U.S.C. ยง 1331. As to the state and local law claims, this Court may exercise ...


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