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Patricia O'neil v. Bank of America

March 31, 2011


The opinion of the court was delivered by: Dearie, Chief Judge.


Plaintiff Patricia O'Neil*fn1 brings this employment discrimination action against Bank of America (the Bank) pursuant to Title VII of the Civil Rights Act of 1964, alleging that she was denied equal pay and training and terminated because of her race. She seeks $8,000 in compensatory damages, $8,000 in punitive damages and $2,270 in severance pay. Defendant moves for summary judgment. For the reasons set forth below, the motion is granted, and the complaint is dismissed in its entirety.


Plaintiff, a Caucasian woman, was employed by defendant for less than ten months, from December 6, 2006 to September 20, 2007. She was hired as a word processor/administrative assistant in the legal department and was expected to provide support to two litigation attorneys until a permanent litigation administrative assistant could be hired. (Def. Rule 56.1 ¶ 6, 10; O'Neil Dep. at 48.) Plaintiff opened mail, answered phones, handled her assigned attorneys' calendars and schedules, input data into the department litigation database and processed invoices from outside counsel. (Id. at 62-63, 70-71.)

Vicky Cyr was plaintiff's supervisor. (Def. Rule 56.1 ¶ 8; O'Neil Dep. at 44, 48, 61.) She conducted plaintiff's first performance review in January 2007. Because plaintiff had been at the Bank for a short time, however, Cyr's evaluation was limited to noting that plaintiff consistently arrived at work on time. (O'Neil Dep. at 61.) Nonetheless, plaintiff received a $1000 annual raise. (Id.) Plaintiff asked Cyr about additional training in invoice processing, and Cyr advised her that there would be training opportunities throughout the year. (Id. at 106-07.) Until then, she was expected to seek assistance from other department staff, referred to as "knee-to-knee" training. (Id.) Invoice processing instruction was also available during weekly legal department question-and-answer calls. (Id. at 68.) Online instruction was available for using the database. (Id. at 94.) Plaintiff was not aware of the weekly question-and-answer calls until April 2007, however, because her name had not been added to the executive administrative assistant email list. (Id. at 108-109, 113.)

When Cyr left the New York office of the Bank in July 2007, Octavia Saine, an African-American woman, became plaintiff's interim supervisor. (Def. Rule 56.1 ¶ 8; O'Neil Dep. at 94-95.) Saine worked out of the Bank's North Carolina office but visited the New York office two to three times a month. (Def. Rule 56.1 ¶ 9; O'Neil Dep. at 95.) Plaintiff first met Saine at a staff meeting on or around June 25, 2007. (O'Neil Dep. at 97.) At the end of the meeting, she asked Saine whether her position consisted of "executive admin" and "document specialist work." Plaintiff had been hired as an "Admin/Word Processor," but David Grimes, the head of administration for the Bank's legal department, had stopped by plaintiff's desk at some point prior to the staff meeting and asked whether she was "okay" with her position being changed. (Id. at 98-99.) Plaintiff was not aware that there had been any change. (Id. at 98.)

Saine, "without making eye contact" and in a "kind of hostile" manner, replied that plaintiff was mistaken, that the department did not employ document specialists, and that she was an administrative assistant "just like everybody else." (Id. at 99, 101.)

Saine conducted plaintiff's performance review in July of 2007. (Def. Rule 56.1 ¶ 20; O'Neil Dep. at 122.) Her written evaluation of plaintiff was, in part, complimentary, stating that plaintiff was "professional, kind, helpful and calm," had "been creative in overcoming obstacles i.e, [sic] the lack of training in some of the department's programs," had "good skills and [wa]s very capable of providing excellent support to her attorneys," had "willingly share[d] her advance level graphics skills with other admins," was "a self starter and demonstrate[d] good judgment" and was "adaptable to change and . . . willing to take on new responsibilities." (Def. Rule 56.1 at Ex. 6.) Saine's demeanor during the meeting, however, made plaintiff feel like "she was doing a really bad job." (O'Neil Dep. at 129.) Saine "screamed," and "the evaluation was very, very loud." (Id.) Plaintiff "didn't know her well enough to know that that was just her way of expressing herself." (Id.) During the review, Saine told plaintiff that the attorneys for whom she worked "felt that [she] was sitting on their travel and expense requests for too long," and that, as reflected in her written evaluation, she "should be more careful with proofreading." (O'Neil Dep. at 130-31; Def. Rule 56.1 at Ex. 6.) Saine's written evaluation notes also indicate that the attorneys felt that plaintiff missed deadlines because she did "not understand what [wa]s required when given a particular task to complete." (Def. Rule 56.1 at Ex. 6.)

In two separate performance evaluation entries, plaintiff was advised by Saine to contact Maria Barrett to coordinate "formalized training" for the software programs she was required to use. (Id.) Plaintiff herself acknowledged her need for additional training to meet her professional performance goals in her evaluation notes, writing: "I find that further training on Team Connect and Legal Precision will be necessary to obtain this goal . . . . It is my intention to drastically improve my understanding of the invoice process before the 4th quarter by regularly attending weekly departmental conference calls regarding updates to the invoicing process." (Id.)

After her review, plaintiff dialed into the weekly question-and-answer calls, but she never contacted Maria Barrett because she "did not know who Maria Barrett was." (O'Neil Dep. at 135, 137.) She did not understand or write down the name when Saine "screamed" it during the evaluation. (Id. at 129.) Although plaintiff does not recall whether Saine's notes in the evaluation form were complete at the time of their performance meeting, she acknowledges that evaluations were available online for review and that she printed hers but did not look at it. (Id. at 128, 139.)

Sherry Newkirk, an African-American Bank employee, transferred from North Carolina after plaintiff was hired. (Id. at 143.) Saine distributed a training schedule for Newkirk via email with dates and times during which she was expected to meet for specific knee-to-knee training with various individuals, including with plaintiff for intranet training. (Id. at 143; 147-48.) Because Saine distributed the schedule, plaintiff presumes that she was responsible for setting up the training. (Id, at 148-49.) According to plaintiff, Newkirk benefitted from the schedule because her training was "organized" and "people were told specifically you are expected to train Sherry in this particular software." (Id. at 144.) In addition, she was able to meet with individuals from across the street at the Bank's 9 West 57th Street location for training whereas plaintiff was not. (Id. at 145.) The schedule served to inform her superiors that she would be away from her desk. (Id. at 144.) Plaintiff acknowledges, however, that only Newkirk and a group of new employees from the Bank's merger with Bankers Trust received this kind of "specialized training." (Id. at 151-52.)

At the July 2007 performance meeting, plaintiff questioned Saine again about her position and title, specifically asking why she was an Administrative Assistant Level III instead of a Senior Administrative Assistant. (Id. at 156-58.) Saine agreed to change plaintiff's title, but refused to discuss a change in salary in a "hostile" and "abrupt" manner. (Id. at 158, 176, 182.) Both positions fell within the same compensation band, and no one in management told O'Neil that the change in title would be a promotion. (Id. at 163-64, 177.)

Nevertheless, plaintiff asserts that the Senior Administrative Assistant position had a higher pay range of $10,000 to $15,000, and that a document production specialist generally earned $70,000 to $75,000 per year. (O'Neil Dep. at 158; Poole Aff. ¶ 22.) Plaintiff's starting salary was $58,000 per year, but Regina Canto, a Filipino woman who started at the Bank as a legal department Senior Administrative Assistant five months before plaintiff, was hired at a salary of $70,000 per year. (O'Neil Dep at 158-69.) Plaintiff concedes that Saine was not involved in setting her initial salary, and she does not contend that her salary was outside of the applicable range or lower than Canto's because of her race. (Id. at 161-63, 173.) Plaintiff believes, however, that Saine chose not to increase her salary within the range in connection with the title change because Saine had "disdain for white women." (Id. at 173.) Saine was always "cordial" to Canto and Althea Atkins, an African-American woman who worked across from plaintiff, but "there was a definite distinctive change in her tone and her demeanor towards [plaintiff]." (O'Neil Dep. at 174.)

Co-worker Debra Poole and Canto had been friends for fourteen years, and Canto became an employee of the Bank on Poole's referral. (Poole Aff. ¶ 13.) At the end of the summer, however, the two fought over Canto's alleged refusal to return Poole's apartment keys. (O'Neil Dep. at 184-85; Poole Aff. ¶ 15.) Poole sent an email to Canto "that was considered to be ...

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