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DEBORAH v. -against- BANK OF

December 1, 2010


The opinion of the court was delivered by: Denis R. Hurley Unites States District Judge


HURLEY, Senior District Judge:

Plaintiff Deborah Hirschberg ("Plaintiff") brings the present action against defendant Bank of America, N.A. ("Defendant" or the "Bank") for violations of the Age Discrimination in Employment Act ("ADEA") and the New York State Human Rights Law ("NYSHRL"), claiming that she was discriminated against on the basis of her age. Defendant has moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the reasons that follow, Defendant's motion is granted and this case is dismissed in its entirety.


The material facts, drawn from the Complaint and the parties' Local Civil Rule 56.1 Statements, are undisputed unless otherwise noted.

A. Plaintiff's Employment with Defendant Prior to 2007

Plaintiff, born on May 31, 1956, was hired by Defendant in August 1976 as a Teller. She was promoted to Senior Teller and, in 1979, became the Head Teller. In 1981, Plaintiff became the Banking Officer and was subsequently promoted to Assistant Branch Manager in 1985. In 1995, Plaintiff was promoted to the position of Branch Manager*fn1 of the East Rockaway branch (the "Branch") in East Rockaway, New York and held that position until her employment was terminated on October 5, 2007. As Branch Manager, Plaintiff was responsible for running the Branch, bringing in business to the Branch, and overseeing the sales, incentive goals, and coaching of the staff. While Plaintiff claims that the Assistant Branch Manager was responsible for opening accounts, Defendant disagrees and states that sales and service specialists, personal bankers, and sales associates could open accounts. According to Defendant, after a sales associate opened an account, it was the responsibility of either the Branch Manager or the Assistant Branch Manager to review the account opening documents.

Both parties agree that Plaintiff's career proceeded smoothly and without incident until 2007. Plaintiff contends that she "frequently went above and beyond for the benefit of the bank and the community" by working extended hours and on Saturdays. (Pl.'s 56.1 ¶ 67.) Plaintiff also received various awards and recognition for her work. During her tenure as a Branch Manager, Plaintiff reported to the Consumer Market Executive ("CME") responsible for overseeing the East Rockaway Branch. During the early part of 2007, Marcia Mills ("Mills") was the CME for the Long Island market, which included East Rockaway, and was Plaintiff's direct supervisor. Plaintiff was never disciplined while Mills was her supervisor. In fact, Plaintiff was regarded as a top performing manager in the region and was frequently called on by Mills for help with regional issues.

B. Plaintiff's Supervision Changes in 2007

In or about the end of February or beginning of March 2007, William Cherry ("Cherry") became the Consumer Market Manger for Plaintiff's area. In or about August 2007, there was a realignment of the markets and Anthony Volpicello ("Volpicello")*fn2 replaced Mills, who transferred to another position with the Bank. As CME, Volpicello was responsible for the East Rockaway Branch, in addition to 43 other banking centers within the newly-created Western Long Island Market. Thus, when Mills left her position, Volpicello and Cherry became responsible for supervising Plaintiff's work.

C. Plaintiff's Interactions with Volpicello

Volpicello was based in Huntington, New York and met Plaintiff on two occasions during the two months that he supervised her prior to her termination. First, Volpicello met Plaintiff at a managers meeting in early August 2007. During that meeting, Volpicello introduced himself to the managers within his new market and spoke generally about the Bank's sales goals. Plaintiff alleges that during this meeting, Volpicello "made a face" when she told the group of managers that she had worked for Defendant for thirty-one years. (Pl.'s Dep. at 77.) Additionally, Plaintiff "felt" that Volpicello saw her as a liability rather than as an asset because he failed, during this meeting, to recognize her tenure or the accomplishments of the East Rockaway Branch. (Id.) Plaintiff further asserts (and Defendant denies) that Volpicello and Cherry both focused on the younger managers attending the meeting. (Pl.'s 56.1 ¶ 81.) Volpicello and Plaintiff did not speak with each other outside the meeting and had no further interactions that day.

The second time Plaintiff met Volpicello was in September 2007, when Volpicello joined the East Rockaway Branch for its morning daily connect meeting. After the meeting, which ran for approximately 15 minutes, Plaintiff gave Volpicello a brief tour of the Branch. Plaintiff testified during her deposition that while Volpicello did not say anything inappropriate during this visit, he was "extremely cold" to her. (Id. ¶ 85.)

D. The Three Audits Conducted of the Branch

Audits are operational reviews of policies and procedures of the banking centers and are conducted by the Banking Center Control Review ("BCCR"), a separate department within the Bank that has no reporting relationship to the CMEs. In 2007, Alfred Mayo ("Mayo") was the manager of the BCCR. The audits are performed unannounced and the auditors use a "checklist of things that they . . . review, and then the [Branch] performance is scored." (Lynch Dep. at 51.) That audit score is then shared with the Branch Manager and Assistant Branch Manager. (Id.) Plaintiff testified that after the audit is completed a report is prepared and provided to the Branch Manager during an "exit interview" attended by the Branch Manager, Assistant Branch Manager, and auditors. (Pl.'s Dep. at 97.)

The East Rockaway Branch was audited three times in 2007. The Branch failed its first audit, which was conducted in January 2007, and was therefore subject to another audit approximately 60 to 90 days later. (See id. at 100.) The Branch passed the second audit, which was conducted on April 18, 2007. Despite passing the second audit, however, the Branch was still considered "high risk" due to prior robberies and because at some point earlier in the year a long-term employee was found to have embezzled over $250,000 from the Bank.*fn3 Therefore, the BCCR conducted a third of the East Rockaway Branch on October 1, 2007. That evening, after the conclusion of the audit, the auditors held an exit interview with Plaintiff and Jennie Cankat ("Cankat"), the Assistant Branch Manager, to review their findings. Volpicello was not present during the third audit or exit interview, but learned of the audit results the following day. (Volpicello Dep. at 81.)

During the exit interview, the auditors advised Plaintiff that the audit uncovered four newly-opened business accounts and one newly-opened personal account which were not opened pursuant to proper Bank procedures. The auditors also advised Plaintiff that she was listed as the responsible associate on two of the questionable accounts. Lois Anderson ("Anderson"), a Personal Banker working at the Branch who was 60 years old at the time, was the opening associate on the remaining three accounts. On October 2, 2007, Mayo sent an email to Volpicello concerning the findings of the audit, which stated as follows:

During our review of the East Rockaway office, five accounts recently opened clearly were not signed for by the customer. Looking at these accounts it appears that the account opener (BCM D. Hirschberg and PB Lois Anderson) pasted a copy of the customer signature to the signature card. This is in direct violation of the Bank Standard procedure. Signature cards are signed in original as it is the only legal contract between the bank and the customer. In addition, the signature of the customer also acknowledges receipt of the Deposit Agreement and Disclosures and appropriate fee schedule, verifies agreement with the terms and conditions of the account and certified the Taxpayer Identification Number (TIN). Although we cannot be sure of the intents around this the ethics issues that arise are numerous while also placing the bank at both a compliance and legal risk. (Def.'s 56.1 ¶ 32.)*fn4

According to Defendant, Volpicello then reviewed the audit findings and spoke with Mayo as well as his human resources representative, Tracy Brown ("Brown"), and his manager, Jeffery Barker ("Barker"). Defendant asserts that during this conversation, Volpicello, Mayo, Brown and Barker agreed that Plaintiff's conduct clearly violated the Bank's "Code of Ethics and General Policy on Insider Trading" ("Code of Ethics"),*fn5 but that Volpicello should interview Plaintiff and Anderson to better understand the circumstances surrounding their actions.

E. The October 3, 2007 Meeting

On October 3, 2007,*fn6 Volpicello and Cherry met with Plaintiff in her office for about thirty minutes to review the findings of the audit. Volpicello showed Plaintiff the audit report and asked her to explain why some of the signature cards for accounts that she opened did not appear to have original customer signatures. Plaintiff admitted that she copied and pasted the signatures of two customers from old Bank documents because she knew the customers well and was trying to accommodate their wishes. (Hirschberg Aff. ¶ 54.)*fn7

With respect to the first account, opened by Plaintiff on June 25, 2007, Plaintiff testified during her deposition that a long-time client asked Plaintiff if she could cash a check made out to a corporation. Plaintiff informed her that she could not and would have to deposit it in an account. The client told Plaintiff that the account had been closed. Plaintiff pulled the paperwork for the closed account and offered to open a new account for the client. When the client indicated that her husband should be named on the account also, Plaintiff told her that he would have to come in and sign certain documents. However, the client stated that her husband would be out of town for two weeks. Plaintiff testified that she telephoned the husband and informed him that she was going to open an account in his name and would use his signature that was on the old documentation already on file. (See Pl. Dep. at 120-21.) According to Plaintiff, this was "not a normal practice." (Hirschberg Aff. ¶ 54.)

As for the second account, which Plaintiff opened on August 24, 2007, Plaintiff testified that she opened a personal account for a long-time customer and gave him a Yankees t-shirt as part of a Bank promotion. The client asked for a second t-shirt so that he would have two shirts to give to his twin sons. Plaintiff informed him that he would need to open another checking account to receive a second t-shirt, and the client told her to open a checking account for his wife. Plaintiff testified that she called the client's wife and got her driver's license information and told her that she would open the account. Plaintiff further testified that she held the signature card for two weeks while she waited for her client's wife to come in to sign the paperwork. Although Plaintiff testified that she informed the client that his wife would need to come into the Bank and sign the signature card, eventually Plaintiff just photocopied the client's wife's signature from an existing signature card. (See Pl.'s Dep. at 122-23.)*fn8

According to Plaintiff, during the exit interview following the October 1, 2007 audit, the auditors told her that she could use existing cards to open new accounts if all the signatories were not present by pulling up an image of an old signature card,*fn9 crossing out the old account number, adding the new account number, and having the customer who was present initial the change.*fn10 Plaintiff asserts that the only difference between using this approach and copying and pasting signatures is "cosmetic." (Pl.'s 56.1 ¶ 95.) Plaintiff further contends that she never admitted during the October 3, 2007 meeting with Volpicello that she failed to follow Bank policy in connection with opening the two accounts in question. (Hirschberg Aff. ¶ 54.) Plaintiff also testified that cutting and pasting customer's signatures onto signature cards to open new accounts was "not a normal procedure," but that she did it on the two occasions described above "to help [the customers] . . . [because] [w]e had an account with them before." (Pl.'s Dep. at 254.)

According to Defendant, Volpicello and Cherry also interviewed Anderson about the accounts flagged by the October 1, 2007 audit, but Anderson did not recall the specific accounts at issue and denied cutting and pasting any customers' signatures. (Def.'s 56.1 ¶ 41.) Anderson informed Volpicello and Cherry that it was Plaintiff's common practice to use customer signatures from older signature cards if she found signature cards that were not properly executed. (Id.)

F. Plaintiff's Employment is Terminated

Defendant asserts that on October 5, 2007, Volpicello, Brown, Barker and the Bank's human resources department made a joint decision to terminate Plaintiff's employment. Defendant further asserts that a decision was made to administer Anderson a final written warning because, despite denying that she cut and pasted customers' signatures, she had knowledge that Plaintiff was engaging in such conduct and did not report it. Anderson was advised that any further violations would result in immediate termination. That same day, Volpicello and Cherry informed Plaintiff that her employment was being terminated based upon her violations of the Bank's Code of Ethics.

G. Applicable Bank Policies

1. Account Opening Procedures

Plaintiff testified that in 2007 the Bank had procedures in place (the "Account Opening Procedures" or "Procedures") for opening new corporate or personal bank accounts. The parties agree that the Procedures provided that when opening a new account, a customer must provide two forms of identification, including a social security number. In addition, the customer must execute a signature card. Plaintiff admitted during her deposition that the Procedures were available on the Bank's intranet. (Pl.'s Dep. at 67.)

Defendant asserts that the signature card is a legal document between the customer and the Bank where the customer certifies, under penalty of perjury, that the customer has provided certain accurate information, including his social security number, proof of United States residency, and the existence of any tax liens. According to Defendant, the signature card also notifies the customer of the Bank's obligations under the law as well as the terms and conditions associated with the account. During her deposition, Plaintiff testified that in order to open a new personal or business account, she would need to obtain the customer's original signature on the signature card. (Id. at 56-57, 65-67.) The parties both recognize the importance of obtaining customers' original signatures and agree that even existing Bank customers must execute a new signature card with each new account they open.

Plaintiff admits that she did "copy and paste signatures for well-known customers on an extremely infrequent basis" as part of "an effort to accommodate important customers of the bank." (Hirschberg Aff. ΒΆ 37.) Plaintiff asserts, however, that "[a]t the time that [she] accommodated the customers, this was not a violation of bank policy." (Id.) Plaintiff further contends that it was only after her employment was terminated that the Bank changed its policies to reflect that copying and pasting signatures was not permitted. Plaintiff notes that a document entitled "Account Opening Procedures: Personal Accounts," which was apparently marked and used as an exhibit during Plaintiff's deposition, has a notation indicating that it was "Revised 02/20/08" -- approximately four months after her termination. (See Pl.'s Dep., Ex. 7.) Defendant insists that copying or cutting and pasting customer signatures has always constituted a violation of Bank policy and emphasizes Plaintiff's own deposition testimony that no Bank policy expressly permits an employee to cut a signature from an existing document ...

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