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Cheryl Mayers v. Emigrant Bancorp

April 22, 2011


The opinion of the court was delivered by: Andrew J. Peck, United States Magistrate Judge:


Plaintiff Cheryl Mayers, a forty-seven year old African American woman, brings this action against defendants Emigrant Bank, Year 2000 Amended and Restated Severance Pay and Outplacement Program of Emigrant Savings Bank, Janet Martin, Kimberly Romano and Stephanie Nipe (collectively, "Emigrant" or "defendants") alleging violations of the New York State Human Rights Law ("NYSHRL"), New York City Human Rights Law ("NYCHRL") and the Employee Retirement Income Secutity Act ("ERISA"). (Dkt. No. 1: Compl.) Mayers asserts that Emigrant "illegally fired" her in retaliation for her complaints of "discrimination, harassment and mistreatment" (Compl. ¶¶ 1, 89-101), and intentionally and wrongfully denied her severance benefits without conducting a "full and fair review" of the circumstances surrounding her termination (Compl. ¶¶ 1, 70-87).

Presently before the Court is Emigrant's summary judgment motion. (Dkt. No. 29: Notice of Motion.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 16.) For the reasons set forth below, Emigrant's summary judgment motion is GRANTED in part and DENIED in part.


Mayers started working for Emigrant on November 17, 1986. (Dkt. No. 40: Mayers Dep. at 10-11; Dkt. No. 34: Nipe Aff. Ex. 7: Mayers Aff. ¶ 1; Dkt. No. 35: Defs. Rule 56.1 Stmt. ¶ 1.) Mayers worked as a bank teller for several years before becoming a "telephone representative" at Emigrant's Manhattan "call center." (Mayers Aff. ¶¶ 2-3; see Mayers Dep. at 10-20; Defs. Rule 56.1 Stmt. ¶¶ 1-2.) Mayers "received a recognition award for Quality Service and Outstanding Achievement in Sales for the first, second, third and fourth quarter in 1993." (Mayers Aff. ¶ 4.)

In February 2005, Mayers was promoted to "supervisor" in Emigrant's Ossining call center. (Mayers Dep. at 22-24, 28-29; Mayers Aff. ¶¶ 3-4; Defs. Rule 56.1 Stmt. ¶¶ 2-3.) Mayers "monitor[ed]" the work of eight to twelve telephone representatives,*fn1 was responsible for generating hourly reports, and took customer calls that the telephone representatives "could not handle." (Mayers Dep. at 25-26, 30-33, 68; Defs. Rule 56.1 Stmt. ¶¶ 5, 7.) Mayers reported to Richard Palombo and Vito Messina, the Ossining call center's daytime managers, who in turn reported to call center director Kim Romano. (Mayers Dep. at 24-25; Defs. Rule 56.1 Stmt. ¶ 6.)

Alleged Discriminatory Conduct

The atmosphere at the Ossining call center was "very good" until Palombo began working there in 2006. (Dkt. No. 40: Mayers Dep. at 34-35.) Palombo "was very pushy, he used to use profanity, at one point he verbally abused some of the reps and -- physically abused a rep." (Mayers Dep. at 35, 42.) On one occasion, Palombo "snatched the headset from off a rep and threw it down on her desk" because she was seated at the wrong station. (Mayers Dep. at 35-41.) The representative, Irma Kelly, was pregnant at the time and subsequently "had to go on disability on account of what [Palombo] did to her." (Mayers Dep. at 37-38, 44.) Mayers told call center director Kim Romano about this incident but nothing was done. (Mayers Dep. at 41-44.) Shortly thereafter, Irma Kelly was fired because she missed a Saturday shift due to a personal emergency. (Mayers Dep. at 44-47.)

On other occasions, Palombo called a female representative a thug (Mayers Dep. at 47-48), sent an "abusive" email to a female representative for being five minutes late (Mayers Dep. at 48-53), told a pregnant female representative who "was having premature labor" to come to Ossining from the Manhattan office (Mayers Dep. at 54-56), and told a pregnant female representative who was on medical leave due to "preeclampsia" that other pregnant employees did not take medical leave and Palombo did not hire her back when her medical leave ended (Mayers Dep. at 56-59). Although Mayers believed that Palombo "single[d] the females out," she did not report the incidents to anyone at Emigrant. (Mayers Dep. at 59, 67, 78-79.) Mayers also testified that she did not feel that Palombo mistreated her because she was female. (Mayers Dep. at 64.)

In January 2007, Mayers reprimanded telephone representative Roslyn Johnson*fn2 for sitting at the wrong work station. (Mayers Dep. at 65.) Johnson put her hand in Mayers' "face and almost slapped" her, but Mayers "back[ed] off." (Mayers Dep. at 65-66.) Mayers reported the incident to Palombo, who made Mayers and Johnson apologize to one another. (Mayers Dep. at 65-66, 75-76.) Mayers was unhappy about the way Palombo "handled the situation" and emailed Romano to complain that she "shouldn't have to apologize to" Johnson. (Mayers Dep. at 65-66, 70-77.) Mayers did not allege in her email that Palombo "was discriminating against [her] in any way." (Mayers Dep. at 77.) Romano never responded to Mayers' email. (Mayers Dep. at 65, 76-77.)

On August 14, 2007, Palombo reprimanded Mayers for, inter alia, emailing a report to "the wrong distribution list, which caused major confusion at high levels." (Dkt. No. 31: Gigante Aff. Ex. 5: Palombo 8/14/07 Memo; Mayers Dep. at 86-89; Mayers Aff. ¶ 5.) On August 30, 2007, Mayers made the same "careless mistake[]" which again "caused tremendous confusion." (Gigante Aff. Ex. 6: Palombo 8/30/07 Memo; Mayers Dep. at 89-90.) Mayers did not disagree with Palombo's August 30 criticism of her. (Mayers Dep. at 90.) But after that, Palombo "picked on" Mayers and "criticiz[ed] anything that [she did] when it came to the reports." (Mayers Dep. at 59-61, 63-64.) Mayers felt "singled out" because "[o]ther supervisors ma[d]e mistakes with the report" but if she made "the slightest mistake[, she] would get called in[to] the office." (Mayers Dep. at 63-64.)

Mayers received a below average performance evaluation in December 2007 stating that she lacked strong "Leadership and Time Management" skills and her work was "rushed and inaccurate." (Gigante Aff. Ex. 3: 2007 Emp. Eval.; see Mayers Dep. at 62, 82-86; Defs. Rule 56.1 ¶ 8.) Mayers believed that Palombo gave her a poor review in 2007--and denied her a raise and bonus--because he wanted her to quit. (Mayers Dep. at 62.) Mayers' 2008 evaluation showed improvement but she was criticized again for "[o]ccasionally submit[ing] work[] with careless mistakes." (Gigante Aff. Ex. 4: 2008 Emp. Eval.; see Mayers Dep. at 90-92; Defs. Rule 56.1 Stmt. ¶ 8.)

Events Leading to Mayers' Termination

On Friday, October 17, 2008, Romano called Mayers and other Ossining employees and told them to report to the Manhattan call center the following Monday, but Mayers "didn't know what it was about." (Dkt. No. 40: Mayers Dep. at 92-95; Dkt. No. 34: Nipe Aff. Ex. 7: Mayers Aff. ¶¶ 6-7; Dkt. No. 35: Defs. Rule 56.1 Stmt. ¶ 14.)

On Monday, October 20, 2008, Mayers reported to the Manhattan call center and began her "daily work as usual." (Mayers Dep. at 95-99.) At approximately 10:30 AM, Mayers and "10 to 11" other Ossining employees were called into Romano's office and told that security was investigating a "serious matter" that must remain "confidential" and not be discussed with anyone. (Mayers Dep. at 99-103; Defs. Rule 56.1 Stmt. ¶¶ 16-17; Dkt. No. 32: Romano Aff. ¶ 4; see Mayers Aff. ¶ 8.) Mayers was told to return to her cubicle until summoned by security. (Mayers Dep. at 102-03; Defs. Rule 56.1 Stmt. ¶ 17.) Later that day, Mayers was escorted to a conference room and interviewed by Emigrant's security chief, Tom Fahey. (Mayers Dep. at 104-05; Mayers Aff. ¶ 9; Defs. Rule 56.1 Stmt. ¶ 17; Dkt. No. 33: Fahey Aff. ¶ 3.)

Fahey asked Mayers to read an anonymous letter addressed to Emigrant's human resources director, Stephanie Nipe. (Mayers Dep. at 105, 111; Mayers Aff. ¶ 9; Defs. Rule 56.1 Stmt. ¶ 18.) The letter contained numerous complaints about Palombo's "unprofessional" behavior and threatened to disclose sensitive customer information, or steal customer funds, unless Palombo was fired. (Romano Aff. Ex. 1: Anonymous Ltr; Mayers Dep. at 105-06, 108; Mayers Aff. ¶ 9;

Defs. Rule 56.1 Stmt. ¶¶ 9-13.) In particular, the letter complained that Palombo had:

(1) threatened to fire a pregnant employee "because she took days off for doctor appointments"

(2) "ripp[ed] a headset off" a female employee because she was seated at the wrong station;

(3) "antagonized" Mayers and "unfair[ly]" denied her a bonus in 2006 and 2007; (4) "belittled" a female employee "to the point w[h]ere it affected her heart ailment"; (5) "spoke[] down" to a male employee "as if he were a child"; (6) "unfairly" fired three employees, including one male, for "Time Stealing" even though it was common for call center representatives to "clock in" co-workers who were not actually working; (7) fired "an innocent girl" because another employee used her User ID and password to access a customer account; (8) called a female employee a "disgusting hateful person," thereby "reduc[ing] her to tears"; and (9) provoked a female employee into submitting a resignation letter and did not let her retract it when she changed her mind. (Anonymous Ltr. at 1-6.) The letter called Palombo a "sociopath" with "no conscience," a "lazy thinker" with "pathetic managing skills," who was not a knowledgeable supervisor and was "oblivious to the problems that are arising in the call center that he is supposed to be managing." (Id.)

Fahey asked Mayers whether "the information in the letter [was] true," and Mayers said that she believed "the information regarding [Palombo] was right." (Mayers Dep. at 80-81, 107-09, 111-32, 136-37; Mayers Aff. ¶ 12; Defs. Rule 56.1 Stmt. ¶¶ 18, 19; Fahey Aff. ¶ 4.) Mayers did not, however, agree with the threat to release customer information because she thought that was "wrong." (Mayers Dep. at 134-37.) Mayers did not elaborate on any of the incidents mentioned in the letter and said that she had "no clue" who wrote it. (Mayers Dep. at 107-10, 137-38; Mayers Aff. ¶ 12; Defs. Rule 56.1 Stmt. ¶¶ 19-20.)

Later that day, Ossining call center representative Nicole Kelly approached Mayers and asked "what took place" during her interview with Fahey. (Mayers Dep. at 145, 201; Mayers Aff. ¶ 13.) Mayers told Kelly that "we are not supposed to discuss" the investigation, and "[w]hen you go downstairs you will find out for yourself." (Mayers Dep. at 145-46, 201; Mayers Aff. ¶ 13.) Daphne Jean, another Ossining call center representative, also approached Mayers and asked her what she "thought of the letter." (Mayers Dep. at 196-98; Defs. Rule 56.1 Stmt. ¶ 28.) Mayers told Jean that they were not "supposed to discuss" the letter but did not report the conversation to Romano or Fahey.*fn3 (Mayers Dep. at 197-98; Defs. Rule 56.1 Stmt. ¶ 29.)

On October 21, 2008, Romano reminded Mayers "not to discuss the [confidential] investigation" with anyone and "to notify [her or] Mr. Fahey . . . if [she] observed any other employees discussing the investigation." (Mayers Dep. at 149-52; Mayers Aff. ¶ 14; Romano Aff. ¶ 6; Defs. Rule 56.1 Stmt. ¶¶ 24-25.)

On October 22, 2008, Kelly told Mayers that former Ossining employees "Keturah Smith and Irma Kelly keep calling her." (Mayers Dep. at 149, 153-56; Mayers Aff. ¶ 15; Defs. Rule 56.1 Stmt. ¶¶ 26-27.) Mayers immediately told Romano about the calls*fn4 and Romano yelled at Kelly "for being friends with Irma and Keturah." (Mayers Dep. at 153-61, 163, 193-94; Mayers Aff. ¶¶ 16-18.) Later that morning, Mayers was "summoned" to personnel where she met with Romano, Nipe and Emigrant consultant Janet Martin. (Mayers Dep. at 158, 164-68; Mayers Aff. ¶ 19; Defs. Rule 56.1 Stmt. ¶ 30; Romano Aff. ¶ 8.) Martin told Mayers that she was being fired, effective immediately, because she "failed to live up to her managerial responsibilities" and because she "withheld evidence." (Mayers Dep. at 168-70, 173-74, 210-11; Mayers Aff. ¶ 19; Defs. Rule 56.1 Stmt. ¶ 31; Romano Aff. ¶ 8.) As Mayers got up to leave, Martin added: "and by the way[,] you will not be receiving a severance." (Mayers Dep. at 169, 174-75; Mayers Aff. ¶ 20.) Mayers was escorted out of the building by security. (Mayers Dep. at 170-72; Mayers Aff. ¶ 20.)

Mayers later discovered that Kelly and Ossining call center supervisor Asha Rattan also were fired and that they also had told Fahey that they agreed with the anonymous letter. (Mayers Dep. at 166-67, 171-73, 195-96; cf. Defs. Rule 56.1 Stmt. ¶ 32.)*fn5 Mayers concluded that she was fired because she "spoke up" and "told the truth" about Palombo. (Mayers Dep. at 80-81, 166-67, 194-95, 234; Defs. Rule 56.1 Stmt. ¶ 33.) Mayers also speculated that her firing might be connected to her age, sex or race (Mayers Dep. at 80-82), but admitted that she never "complain[ed] to anyone while [she] was employed at Emigrant about discrimination, retaliation and/or unfair treatment." (Mayers Dep. at 109, 234; Defs. Rule 56.1 Stmt. ¶ 22.) Moreover, although Mayers did not think that by "agreeing with th[e] letter [she was] making a complaint about age, race, sex, gender or any other related discrimination against" her, she nonetheless believed the letter constituted a complaint of gender discrimination "[b]ecause the majority of the names that were mentioned" were female. (Mayers Dep. at 109-10; Defs. Rule 56.1 Stmt. ¶ 21.)

Mayers' Claim for Severance Benefits Under Emigrant's Severance Plan On November 5, 2008, Mayers submitted a claim for severance benefits seeking $29,914.82 (26 weeks pay) under Emigrant's ...

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