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Jitka Mcintosh v. Bank of America

August 24, 2011


The opinion of the court was delivered by: John T. Curtin United States District Judge


This case was recently transferred to the docket of the undersigned by the Hon. William M. Skretny. It is currently before the court on the defendant's motion for summary judgment dismissing the complaint (Item 170).


Plaintiff commenced this action with the filing of a complaint on October 24, 2006 (Item 1). She asserted claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. ("Title VII") and the Americans with Disabilities Act of 1990, 42 U.S.C. § 12112, et seq. ("ADA"). In her pro se form complaint, plaintiff stated that she filed a charge with the Equal Employment Opportunity Commission ("EEOC") on March 23, 2006 and received a Right to Sue letter on July 25, 2006 (Item 1).*fn1 She alleged that defendant failed to promote her and failed to provide her with reasonable accommodations so that she could perform the essential functions of her position. She also alleged that she was harassed on the basis of her sex and retaliated against because she complained about discrimination directed toward herself and others. Id.

After successfully moving for an extension of time in which to answer (Items 4, 8), defendant filed its answer on March 8, 2007 (Item 10) and an amended answer on March 20, 2007 (Item 15). On March 9, 2007, plaintiff filed a second charge of discrimination with the EEOC, in which she alleged national origin discrimination and retaliation. On November 5, 2007, she amended the charge to include claims of discrimination based on sex, age, and disability. On July 7, 2008, plaintiff filed a second complaint (Case Number 08-CV-503), alleging discrimination based on disability, national origin, sex, and age, and retaliation. On February 5, 2009, defendant moved to have the two cases consolidated (Item 102). In an order filed February 13, 2009, the court denied the motion because there was a pending motion to dismiss in case 08-CV-503 (Item 106).

Plaintiff's claims of sex and age discrimination and retaliation in case 08-CV-503 were dismissed for failure to state a claim and/or to timely exhaust administrative remedies. On September 4, 2009, following the resolution of the motion to dismiss in case 08-CV-503, the two cases were consolidated.

On November 18, 2009, defendant filed a motion for judgment on the pleadings dismissing plaintiff's claims for gender discrimination and retaliation pursuant to Title VII and the New York State Human Rights Law, N.Y. Exec. Law § 196 ("NYSHRL") (Item 124). In a Report and Recommendation filed June 7, 2010, Magistrate Judge H. Kenneth Schroeder recommended that the motion be granted (Item 156). On July 21, 2010, Chief Judge Skretny denied the plaintiff's objections and accepted the Report and Recommendation in its entirety (Item 162). Accordingly, plaintiff's remaining claims are limited to discrimination based on national origin and disability, and retaliation.

On January 28, 2011 defendant filed the instant motion (Item 170). Plaintiff filed her response, consisting of an affidavit and statement of facts, on April 4, 2011 (Items 183, 184). She was denied leave to file a memorandum of law in excess of the 25-page limit (Item 187), and filed the memorandum on May 13, 2011 (Item 188). Defendant filed a reply memorandum on July 15, 2011 (Item 191) and concurrently filed a motion to strike plaintiff's factual averments (Item 192). On July 21, 2011, plaintiff filed a motion requesting a status conference (Item 197), which was denied (Item 198). In consideration of plaintiff's pro se status, the court denied the defendant's motion to strike, stating that it will consider the plaintiff's submissions with due regard to defendant's arguments regarding admissibility (Item 199). The court has determined that oral argument on the motion for summary judgment is unnecessary. For the reasons that follow, the defendant's motion to dismiss is granted, and the complaint is dismissed.


Plaintiff was born in the Czech Republic in 1962 and came to the United States in 1990 (App. 7). She started working for defendant in approximately October 2002 (App. 25). She was a customer service representative in the Accelerator Department, selling various Bank of America products by telephone (App. 26-28).

In an affidavit, Diane Herman stated that she was the Accelerator Department Telephone Team Manager from August 2005 until May 2008 (App. 340). Once, after plaintiff expressed frustration with life in the United States, Herman asked her if she ever considered returning to the Czech Republic (App. 341, ¶ 1). On August 4, 2004, Herman verbally coached plaintiff regarding her handling of customer calls and advised her that the next customer complaint would result in a written disciplinary action (App. 352). On August 19, 2005, plaintiff received a written counseling memorandum for her refusal to transfer a customer call to a specific employee (App. 354).

In October 2005, plaintiff received her 2005 performance evaluation. She was not happy with it and expressed a desire to transfer from the Accelerator Department. Herman reminded plaintiff that she could not apply for other Bank of America positions within six months of receiving a written warning (App. 342, ¶ 10). Despite this, plaintiff applied for a position and began approaching other supervisors in the area asking to be transferred to their teams. Id., ¶¶ 11-12.

In March 2006, Herman was contacted by a recruiter with regard to a position for which plaintiff had applied. Herman told the recruiter that she could not recommend plaintiff for the position (App. 343, ¶ 15). Plaintiff had complained to other associates that her food had been poisoned by a co-worker. Id. Additionally, plaintiff accused Herman of having her followed. Herman advised plaintiff to contact defendant's Employee Assistance Program ("EAP") if she needed to speak to someone. Id. On the advice of defendant's human resources department, on March 24, 2006, Herman issued plaintiff a Final Written Warning for her inappropriate behavior (App. 369-70). Herman was unaware at the time that plaintiff had contacted the EEOC (App. 343, ¶ 17).

According to plaintiff's 2006 first and second quarter manager reviews, plaintiff had not met all of her sales goals, but her overall rating was "Meets Expectations" (App. 379). On May 1, 2006, plaintiff disrupted a team meeting by playing with her cell phone (App. 344, ¶ 19). In June 2006, Herman received e-mails from a corporate trainer documenting plaintiff's failure to follow instructions during an exam. Id., ¶ 20. On June 6, 2006, plaintiff missed a staff meeting, despite being specifically instructed to attend the meeting by Patrick Marks, Herman's manager. She then approached other associates and asked them to sign a document she had drafted stating that she had attempted to attend the meeting but arrived late. Id., ¶ 21. Herman also received a complaint from another associate that plaintiff had been tracking reward points*fn3 earned by her co-workers. Id., ¶ 22. On June 19, 2006, plaintiff was issued another Final Written Warning (App. 387). She was advised that additional misconduct or inappropriate behavior could result in termination (App. 345, ¶ 23). At the time, Herman was unaware that plaintiff had filed a complaint with the EEOC. Id.

On September 1, 2006, Herman received a complaint about plaintiff from another Bank of America employee who had requested information from plaintiff on behalf of a bank client and plaintiff had refused the request (App. 345, ¶ 24). On November 1, 2006, Herman met with plaintiff regarding her annual review. Plaintiff's overall rating was "Does Not Meet Expectations" for her failure to meet important sales goals and her poor interaction with customers and co-workers (App. 397). They planned to meet again in March 2007 "to review what progress there has been with your goals." Id. Herman told plaintiff that she needed to meet her year-end goals despite her scheduled vacation (App. 345, ¶ 26). Additionally, plaintiff was advised that she could not take more than two weeks of vacation at a time due to the fact that defendant was short-staffed and plaintiff had not made her sales goals (App. 400).

On December 2, 2006, a customer called to complain about plaintiff's handling of her request (App. 346, ¶ 27). Although she could have terminated plaintiff's employment, Herman issued a third Final Written Warning on December 5, 2006 (App. 404).

After December 5, 2006, plaintiff worked one day. She used a combination of vacation time, personal leave, and sick time between December 6, 2006 and January 2, 2007 (App. 346, ¶ 30; App. 406, 407). On January 2, 2007, plaintiff was advised that her employment was terminated (App. 347, ¶ 31).

Herman stated that plaintiff had a personality conflict with another co-worker, Anthony Parisi, but plaintiff never complained to Herman that Parisi's conduct was in any way discriminatory (App. 347, ΒΆ 33). Additionally, Herman stated that she was unaware that plaintiff suffered from any disability or medical ...

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