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Evelyn A. Jankousky v. North Fork Bancorporation

March 23, 2011


The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:



Plaintiff Evelyn Jankousky moves for partial summary judgment on her claims that Defendant Capital One, National Association ("Bank") breached her contract and violated New York Labor Law ("NYLL") by reducing, and then failing to pay altogether, her contractually guaranteed incentive compensation for 2006. She also argues that there is no genuine dispute that this violation was willful, entitling her to liquidated damages. The Bank cross moves for summary judgment on these claims, as well as the related common law claims and sex discrimination claims. It argues that it complied with the contract's unambiguous terms and had a legitimate, nondiscriminatory reason to terminate Jankousky.

As to the NYLL claims for both the incentive reduction and failure to pay, the Court denies Jankousky's motion for summary judgment and grants the Bank's motion for summary judgment. Jankousky's claims do not involve a deduction within the meaning of the statute. As to the breach of contract claims for both the reduction and the failure to pay, the Court grants Jankousky's motion for summary judgment and denies the Bank's motion for summary judgment. Unambiguous language of the contract mandates this result; and there is no evidence to support the Bank's contrary interpretation. Accordingly, the Court dismisses the duplicative claim for breach of the implied covenant of good faith and fair dealing. The claims for promissory estoppel, quantum meruit, and unjust enrichment are all preempted by the contract governing Jankousky's right to the incentive compensation and, therefore, they are dismissed as well. Finally, the Court denies the Bank's motion for summary judgment on the sex discrimination claims because genuine factual disputes remain.


The Bank is a federally insured financial institution and successor by merger to North Fork Bank. (Def.'s Mem. 3). Jankousky was a branch manager at the Bank since 2001, and managed the Fifth Avenue branch from 2004 until she was terminated in March 2007. (Pl. 56.1 ¶1). As branch manager of the Fifth Avenue branch, Jankousky was supervised by the district manager- Penelope Wamboldt until 2006, when she was replaced by Paul Santamaria. Joseph Roberto was the division manager, and Carolyn Drexel managed the branch system. (Def.'s Mem. 3).

The Bank rewards branch managers for increasing profitable deposits, so Jankousky's compensation included substantial incentive compensation based on "the full amount of actual dollar growth" at the branch in certain types of accounts over the prior year, as provided by written contract.*fn1 (Goodell Aff. Ex. 6, at 388). The 2006 Retail Incentive Programs ("Contract") governs the present claim. It provides a few limited scenarios in which the actual dollar growth may be adjusted:

There will be no adjustments made for deposits under $500,000 that are moved to another branch. Adjustments will be considered for deposits over $500,000 that are moved to another branch, losses that result from a robbery, or other unforeseen losses that occur through no fault of the branch . . . .

(Id. at 395 ¶ 8). It further states that "[i]ncentive awards for employees who have been given a written warning . . . may be suspended or forfeited at Management's discretion." (Id. at 395 ¶10).

Finally, in relevant part, it provides that "[a]s of December 31, 2006, the results will be calculated and the appropriate incentive will be earned," but that "[a]ll incentives will be paid in February 2007." (Id. at 394 ¶2, 395 ¶3).

From 2004 to 2006, the total deposits at Jankousky's branch grew from $250 million to $400 million. (Pl. Opp. 56.1 ¶ 105). In 2006, the deposit growth in the most profitable accounts (checking or Demand Deposit Accounts ("DDA")*fn2 ) at her branch was in the top 10% for all Bank branches. (Pl. 56.1 ¶ 10). Additionally, Jankousky's branch had less than $18,000 in 2006 losses, which was relatively low, and the branch never failed an audit. (Goodell Aff. Ex. 23; Pl. Opp. 56.1 ¶¶ 110-12).

During Jankousky's tenure as branch manager, the Fifth Avenue branch held a large money market account ("MMA"), which is interest-bearing, for a certain customer ("Customer L"). It was discovered that Customer L used its MMA for transactions which exceeded the limits of Federal Regulation D. In April 2006, the MMA was changed to a DDA in order to comply. No new money was brought into the branch, but the account type changed from interest-bearing to non-interest-bearing. (Def.'s Mem. 3).

According to Thomas Pfundstein, the Bank's executive in charge of incentive compensation, in Fall 2006, the Bank decided to investigate the amount of incentive compensation that Jankousky was supposed to receive because it was unusually large. (Pfundstein Aff. ¶ 8). In November 2006, the Bank adjusted her incentive pay by removing Customer L's transfer from the total DDA deposit growth, because the money was not new to the branch; had already been subject to the 2005 incentive compensation; and was transferred only in order to comply with the law ("November Incentive Reduction"). (Id.). Jankousky alleges that this decision had the effect of reducing her 2006 incentive compensation by $89,780, resulting in a new total of $83,456. (Pl. 56.1 ¶¶ 32-33).

In January 2007, Jankousky received and signed a written performance warning, suspending the remaining incentive compensation of $83,456 altogether "pending a satisfactory rating on a follow-up performance evaluation, which will be conducted in three months." ("January Incentive Denial"). (Pl. 56.1 ΒΆΒΆ 37-38). On February 8, 2007, Jankousky complained ...

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