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Vinokur v. Sovereign Bank

March 22, 2010


The opinion of the court was delivered by: Matsumoto, United States District Judge


Presently before the court is defendant Sovereign Bank's ("defendant" or "Sovereign") motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking dismissal of plaintiff Faina Vinokur's ("plaintiff" or "Vinokur") action. In this action, plaintiff alleges employment discrimination in violation of New York State Executive Law ("NYSEL") § 296 and New York City Human Rights Law ("NYCHRL"), Administrative Code § 8-107.*fn1 Plaintiff alleges that defendant discriminated against her on the basis of disability (rheumatoid arthritis), age (born 1954), and national origin (Russian). Further, plaintiff alleges that defendant failed to reasonably accommodate her disability and terminated her in retaliation for seeking an accommodation. (Doc. No. 1, Compl. ¶¶ 35-38.) For the reasons set forth herein, defendant's motion for summary judgment is granted in its entirety.


The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1, are undisputed unless otherwise indicated. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the nonmoving plaintiff.

A. Plaintiff's Employment at Independence Community Bank

Plaintiff was born in Russia in 1954. (Doc. No. 12, Defendant's Local Civil Rule 56.1 Statement ("Def. 56.1 Stmt.") ¶ 4.) In 1998, plaintiff commenced employment with Independence Community Bank ("Independence") as a teller at Independence's Avenue J, Brooklyn community banking office (the "CBO" or "branch"). (Id. ¶ 16.) She was hired by then Branch Manager Carolina Scalici and was supervised by then Branch Assistant Manager Karyn Baldassarre.*fn2 (Id. ¶¶ 16-17.)

In or around 1999, plaintiff was diagnosed with rheumatoid arthritis. (Id. ¶ 21.) Between 1999 and 2006, plaintiff was granted approximately five leaves of absence from work due to her medical condition. (Id. ¶ 22.) One each occasion, plaintiff submitted a doctor's note explaining the reason for her absence. (Id.) Although plaintiff acknowledges that no bank employee ever made any negative comment regarding her medical condition (id. ¶ 23), plaintiff generally contends that she was given "a problem when she needed time off for her medical condition" but does not specify how or by whom (Doc. No. 14, Plaintiff's Local Civil Rule 56.1 Counterstatement ("Pl. 56.1 Stmt.") ¶ 23). Plaintiff claims that her medical condition "frustrated her manager to the point [sic] manager would be mad at her." (Id. ¶ 24.)

Plaintiff does not believe that her medically-excused leaves of absence affected her employment in any manner. (Def. 56.1 Stmt. ¶ 25.) Indeed, in or around 2004, plaintiff was selected by Ms. Scalici and Ms. Baldassarre for training as Head Teller. (Id.) That position was "one of greater responsibility than a teller." (Id.) After plaintiff received training for that position, plaintiff declined the offer to become the permanent Head Teller because she could not lift heavy boxes. (Id. ¶ 27.) Although Ms. Scalici offered to lift any boxes for plaintiff, plaintiff nevertheless declined the promotion. (Id.) Plaintiff regularly acted as "back-up" Head Teller and was one of two tellers granted authority to exercise "overrides of teller transactions requiring supervisory approval." (See id. ¶¶ 27-28.)

B. Sovereign Bank and its Policies

In or around June 2006, Independence Bank was acquired by the parent company of Sovereign Bank. (Def. 56.1 Stmt. ¶ 2.) In September 2006, Independence employees were converted to Sovereign employees and became subject to Sovereign's employment policies. (Id.) On August 18, 2006, plaintiff acknowledged, in writing, that she read and became familiar with Sovereign's policies, including its equal employment opportunity policy, which prohibits discrimination and sets forth a complaint procedure. (Id. ¶¶ 5, 9-10.)

Among other things, the training materials reviewed by plaintiff set forth Sovereign's policies and procedures regarding its mandatory compliance with the Bank Secrecy Act of 1970 (the "BSA"). (Id. ¶ 11.) The training materials advised Sovereign employees that the purpose of the BSA is "to monitor and report certain types of transactions . . . to aid law enforcement authorities and the Internal Revenue Service in uncovering a multitude of criminal activities." (Id.) Sovereign's employees were informed that failure to comply with BSA reporting requirements may expose Sovereign, its directors, officers and employees to civil and criminal penalties. (See id.)

The training materials also advised employees to monitor and report suspicious activity. (Id. ¶ 12.) In particular, employees were required to monitor and report financial transactions in excess of $10,000. (Id.) Moreover, employees were trained to recognize "structuring transactions," whereby persons seeking to avoid reporting financial transactions in excess of $10,000 structure the financial transaction into multiple smaller transactions below the $10,000 reporting threshold. (Id.) Employees were advised that it is unlawful to structure or assist in structuring any transaction. (Id.) Sovereign employees are required to report structuring activity to Sovereign's Loss Prevention and Security ("LP&S") Department. (See id. ¶ 15.)

Plaintiff participated in an online training program regarding the BSA and passed an online test regarding the same. (Id. ¶ 13.) Plaintiff understood that it was her obligation as a teller to "be on the lookout" for suspicious activity and report the same. (Id.) In addition, plaintiff understood that if a branch manager thought that a teller had engaged in "suspicious activity" the manager had an obligation to report the same to Sovereign's LP&S Department. (Id. ¶ 15.)

C. Plaintiff's Allegations of National Origin Discrimination

Plaintiff testified that she was discriminated against in October 2006 by having to account for a shortage in the branch's night deposit box. (See Doc. No. 13, Affirmation of Anthony C. Giordano ("Giordano Aff."), Ex. 3, Deposition of Faina Vinokur ("Pl. Dep.") at 99-100; Def. 56.1 Stmt. ¶ 72.) Plaintiff testified that after a bank customer insisted that his deposit had contained $590 more than the amount plaintiff had counted, Ms. Scalici and Ms. Baldassarre instructed plaintiff to record a "short" for the teller box and note her teller identification number ("TIN"). (Pl. Dep. at 100-104.) Plaintiff refused to record her TIN. (Id. at 102.) Plaintiff acknowledged that Ms. Scalici requested that plaintiff "take the short" because "she was friends with the customer and . . . wanted to be good to the customer" and that it had "nothing to do with" plaintiff. (Id. at 105.) Plaintiff believes that she was discriminated against because "[t]hey [sic] never happened with nobody in our branch." (Id. at 104.) Plaintiff testified that she was never disciplined for the "short" or refusing to "take" the short. (Id. at 103, 109.)

Plaintiff further testified that on more than two occasions, Ms. Baldassarre stood behind her in the teller area while plaintiff spoke in Russian to a Russian customer. (Pl. Dep. at 105-106.) Plaintiff acknowledged that neither Ms. Baldassarre nor Ms. Scalici prohibited plaintiff from speaking in Russian to customers or co-workers. (Id. at 107, 110.) Plaintiff testified, however, that Pat Walter, a former Head Teller, told her not to speak in Russian with co-workers. (Id. at 110.)

Plaintiff testified that she heard Pakistani co-workers speak to Pakistani customers and each other in their native language. (Id. at 109-110.) Plaintiff did not alert branch management nor complain about disparate treatment. (See id. at 110.)

D. Plaintiff's Work Schedule and Request for Accommodation

According to defendant, the branch required all full-time tellers to work five days per week. (Def. 56.1 Stmt. ¶ 19.) At all relevant times, the branch was open from 9:00 a.m. to 5:00 p.m. on Monday, Tuesday, Wednesday and Friday, 9:00 a.m. to 7:00 p.m. on Thursday, 9:00 a.m. to 1:00 p.m. on Sunday and was closed on Saturday.*fn3 (Id.; see Pl. 56.1 Stmt. ¶ 19; see also Doc. No. 12, Affirmation of Wendy J. Mellk ("Mellk Aff."), Ex. H, Affidavit of Karyn Baldassarre ("Baldassarre Aff.") ¶ 3.) According to defendant, until April 2007, plaintiff was typically scheduled to work Monday through Friday, and worked on Sunday every three to four weeks. (Def. 56.1 Stmt. ¶ 20.) Although plaintiff does not dispute this fact, plaintiff adds that "for a three month period she worked six days a week." (Pl. 56.1 Stmt. ¶ 20.)

In March 2007, plaintiff's medical worsened and she sought to reduce her weekly schedule from 40 hours to 32 hours. (Pl. Dep. at 177; Def. 56.1 Stmt. ¶ 30.) Accordingly, plaintiff contacted Lisa Wagner, a Sovereign human resources employee located in Pennsylvania with responsibility over retirement benefits. (Def. 56.1 Stmt. ¶ 36; Baldassarre Aff. ¶ 7.) According to plaintiff, Ms. Wagner advised plaintiff that it was possible to work 32 hours per week and remain classified as a full-time employee for benefits purposes. (See Pl. Dep. at 179-181; Def. 56.1 Stmt. ¶ 36; Pl. 56.1 Stmt. ¶ 36.) Plaintiff testified that Ms. Wager advised her that plaintiff's manager "just have to send to payroll department your scheduled hours." (Pl. Dep. at 179.)

It is undisputed that Ms. Wagner had no authority over, and did not participate in, branch staffing decisions. (Def. 56.1 Stmt. ¶ 37.) Defendant contends that Ms. Wagner told plaintiff that branch staffing decisions are made by the Branch Manager and Sovereign's District Executive. (Id. ¶ 38.) Consequently, Ms. Wagner discussed plaintiff's request with Branch Manager Karyn Baldassarre. (See Baldassarre Aff. ¶¶ 9-10.)

Before speaking with plaintiff, Ms. Baldassarre discussed plaintiff's request with Robert Vivo, Sovereign's District Executive. (Baldassarre Aff. ¶ 17.) Ms. Baldassarre and Mr. Vivo agreed that a reduction in plaintiff's weekly schedule to four days would require increasing other tellers' hours or hiring a new employee to replace plaintiff's lost day. (Id.)

Thereafter, Ms. Baldassarre spoke with plaintiff regarding her request to work 32 hours per week. (Def. 56.1 Stmt. ¶ 30; Pl. Dep. at 195-196.) Plaintiff testified that she requested not to work on Thursdays, the day on which the branch remained open until 7:00 p.m. (Pl. Dep. at 96, 206; see Pl. 56.1 Stmt. ¶ 30.) Although plaintiff testified that she was asked for medical documentation in support of her request (Pl. Dep. 192), she subsequently testified that she was not asked for any such documentation (id. at 193). Notwithstanding, plaintiff presented to Ms. Baldassarre a note from her physician, Dr.

Yusuf Yazici, in support of her request. (See Pl. Dep. at 192.) Although neither party has submitted the physician's note in connection with the instant motion, the parties agree that the note indicated only that plaintiff could not work evening hours past 5:00 p.m. (Id. at 32; Def. 56.1 Stmt. ¶ 34.) Plaintiff testified that Dr. Yazici's note pertained "just for Thursday night." (Pl. Dep. at 241; Def. 56.1 Stmt. ¶ 34.)

It is undisputed that plaintiff did not provide additional medical documentation in support of her request for a 32-hour, four-day work week. (Def. 56.1 Stmt. ¶ 49; Pl. Dep. 193.) Plaintiff testified that she advised Ms. Baldassarre that she would provide medical documentation in support of her request if needed, but was never asked to do so. (Pl. Dep. at 182, 193-194.) By contrast, Ms. Baldassarre states that she advised plaintiff that medical documentation was required to support her request. (Baldassarre Aff. ¶ 12.) Plaintiff testified that she was at Ms. Baldassarre's desk when she emailed Mr. Vivo concerning plaintiff's request, and plaintiff recalls that Ms. Baldassarre informed Mr. Vivo that plaintiff would provide medical documentation to support her request if needed. (Def. 56.1 Stmt. ¶ 40.)

On April 4, 2007, plaintiff's husband apparently called Mr. Vivo to inquire why his wife's weekly schedule could not be reduced to 32 hours. Gregoria Perez, the branch's Employee Relations Manager, returned the call on Mr. Vivo's behalf. (Mellk Aff., Ex. I, Affidavit of Gregoria Perez ("Perez Aff.") ¶ 14 and Ex. B, Handwritten Notes dated April 4, 2007; Pl. 56.1 Stmt. ¶ 43.) Ms. Perez advised Mr. Vinokur that plaintiff had to provide medical documentation in support of her request. (Perez Aff. ¶ 14.) Plaintiff, who was not present for and did not overhear this conversation (Pl. Dep. at 205), claims that her husband was told by Ms. Perez "old employee like to take 32 hours just take care of grandchildren" (id. at 95).

In early April 2007, a brief meeting was held between plaintiff, Ms. Baldassarre and Ms. Scalici regarding plaintiff's request for a reduced weekly schedule. Plaintiff testified that during this meeting, Ms. Scalici asked her "if another teller, old teller who work here, like to take care of grandchildren and come to me and ask about 32 hours, what I will do? . . . And she [Scalici] asked me how you think it will look if you work 32 hours?" (Pl. Dep. at 206.) Plaintiff responded, "I just want to need one day off, the long day off." (Id.) Accordingly, plaintiff agreed to work Sundays and take Thursdays off. (See Pl. Dep. at 207-209; Def. 56.1 Stmt. ¶ 44; Pl. 56.1 Stmt. ¶ 44.) Plaintiff later testified that she "was not happy with this but I don't have another choice. It was agreement." (Pl Dep. at 207.)

Approximately 30 minutes later, a telephone conference call was held between plaintiff, Ms. Baldassarre, Mr. Vivo and Ms. Perez regarding plaintiff's request. Ms. Baldassarre testified that she suggested that plaintiff work Sundays and take Thursdays off. (Baldassarre Dep. at 18.) Plaintiff was also advised that she could work a part-time schedule. (Id.) Plaintiff never inquired about her eligibility for benefits as a part-time employee. (Pl. Dep. at 242.)

Plaintiff testified that during this call, she was advised that she could not work 32 hours per week and remain full time. (Pl. Dep. at 209.) Plaintiff was told that she would "have to go part time and go on disability." (Id. at 209.) By contrast, Ms. Baldassarre explained that the branch required its full-time employees to work 40 hours, 5 days per week, and that if plaintiff wanted to work 4 days per week, she had to provide medical documentation regarding her limitations. (Baldassarre Aff. ¶ 16.)

It is undisputed that plaintiff requested her physician to provide a note in support of her request for a 32-hour, four-day work week. (Def. 56.1 Stmt. ¶ 49; Pl. 56.1 Stmt. ¶ 49; Pl. Dep. at 241-242.) According to plaintiff, her physician declined to do so because "she [the physician] told me if she give me this note, they automatically put me for part-time worker." (Pl. Dep. at 241-242.) Plaintiff testified that her physician had not seen any of defendant's policies. (Id. at 242.)

According to defendant, plaintiff agreed to work on Sundays instead of Thursdays, and commenced her new schedule on April 8, 2007. (Def. 56.1 Stmt. ¶ 48.) Plaintiff later testified, however, that "[t]hey pushed me to work every Sunday." (Pl. Dep. at 211.) Plaintiff was not "happy" that she was not given the 32-hour schedule. (Pl. Dep. at 207, 246.) Plaintiff explained that working on Sundays interfered with her "weekend time to be with [her] family and husband." (Id. at 212-213.) Notwithstanding, plaintiff testified that she continued to "perfor[m][her] job very well." (Id. at 246; see Def. 56.1 Stmt. ¶ 48; Pl. 56.1 Stmt. ¶ 48.) Plaintiff testified that she never complained that she was subjected to discrimination based on her medical condition because she was "scared." (Id. at 246-247.) Plaintiff claims that she was scared because "I am not young and for any reason they can fire me." (Id. at 247.)

E. Plaintiff's Termination

On or about May 18, 2007, Ms. Baldassarre was informed by Pat Persuad, Assistant Manager for the branch, that plaintiff made a series of deposits and withdrawals that appeared to be "suspicious activity" under defendant's policies regarding the BSA. (Def. 56.1 Stmt. ¶ 53; Baldassarre Aff. ¶ 21.) According to defendant, "plaintiff appeared to be structuring transactions by making a number of deposits in the exact amount of $10,000, and then, a couple of days later, withdrawing the same amount in cash through different tellers." (Def. 56.1 Stmt. ¶ 53; see Baldassarre Aff. ¶ 22.) Ms. Baldassarre believed that she had a duty to report the suspicious activity to Sovereign's Loss Prevention and Security Department, and did so. (Id.) Ms. Baldassarre states that plaintiff's medical condition and request for accommodation "played no role in my report of her suspicious activity . . . ." (Id. ¶ 23.) Indeed, Ms. Baldassarre states that she believed her "job would be in jeopardy" if she failed to report plaintiff's suspicious activity. (Id. ¶ 22.) After reporting plaintiff's activity to the LP&S Department, Ms. Baldassarre informed Mr. Vivo and Ms. Scalici that she had done so. (Id.)

An investigation by Sovereign's LP&S Department revealed that plaintiff had made a series of eight transactions between March 27, 2007 and April 18, 2007. (See Def. 56.1 Stmt. ¶ 55; Perez Aff. ¶ 22 and Ex. D, Case Report and Notes, annexed thereto.) Specifically, plaintiff made the following deposits and withdrawals:

March 27, 2007: a single $10,000 check deposit into plaintiff's Sovereign account drawn from ...

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