United States District Court, E.D. New York
For the Plaintiffs: Ann Willoughby, Esq., Of Counsel, Willoughby & Giordano, Williston Park, NY.
For the Defendants: Littler Mendelson P.C., Melville, NY; Amy Laura Ventry, Esq., James P. Smith, Esq., Robert M. Wolff, Esq., Of Counsel, Littler Mendelson P.C., Cleveland, OH.
MEMORANDUM OF DECISION AND ORDER
ARTHUR D. SPATT, United States District Judge.
On February 26, 2013, Plaintiffs Kathleen Warshun and Lynette Tiger (the " Plaintiffs" ) commenced this action against their employer New York Community Bank (" NYCB" ), NYCB's parent corporation New York Community Bancorp Inc. (" Bancorp" ) (collectively the " Corporate Defendants" ) and four high-level employees of NYCB.
The Plaintiffs, whose employment was terminated by the Corporate Defendants as part of a mass workforce reduction of 250 employees, alleged (1) violations of the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq . (" the ADEA" ); (2) gender discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq . (" Title VII" ) and the New York State Human Rights Law, New York State Executive Law § 290 et seq . (" NYSHRL" ); (3) reverse racial discrimination in violation of Title VIII and the NYSHRL; and (4) failure to timely notify the Plaintiffs of the cessation of their employment in violation of the federal Worker Adjustment and Retraining Notification Acts, 29 U.S.C. § 2101 et seq . (" the WARN Act" ) and its New York equivalent, New York State Labor Law § 860 et seq .
Presently pending before the Court are (1) a motion to dismiss the complaint in part by the Defendants pursuant to Federal Rules of Civil Procedure (" Fed. R. Civ. P." ) 12(b)(5) for insufficient service of process and 12(b)(6) for failure to state a cause of action and (2) a cross-motion by the Plaintiffs pursuant to Fed.R.Civ.P. 15(a)(2) to amend the complaint. For the following reasons, the motion to dismiss and the motion to amend are each granted in part and denied in part.
Unless otherwise stated, the following facts are drawn from the original complaint and construed in a light most favorable to the Plaintiffs.
A. The Parties
The Plaintiff Kathleen Warshun (" Warshun" ) is a Caucasian female of Polish descent whose date of birth is September 28, 1958, and was at all relevant times over the age of forty years. The Plaintiff Lynette Tiger (" Tiger" ) is a Caucasian female of German descent whose date of birth is
June 11, 1969, and was at all relevant times over the age of forty years.
The Defendant Joseph Ficalora (" Ficalora" ) is the President and Chief Executive Officer of NYCB. The Defendant Robert Wann (" Wann" ) is the Chief Operating Officer of NYCB. The Defendant William DiSalvatore (" DiSalvatore" ) is the Director of NYCB. The Defendant Cynthia Lynn (" Lynn" ) is the Chief Administrative Officer of NYCB.
B. The Allegations Specific to Warshun
On or about September 13, 1995, Warshun was hired as a bank teller by Roslyn Savings Bank. In or about 2003, Roslyn Bancorp Inc., the holding company for Roslyn Savings Bank, was acquired by Bancorp. Warshun remained employed on a continuous basis at Roslyn Savings Bank/NYCB until her employment was terminated on October 13, 2011.
On April 1, 2004, Warshun allegedly sustained an injury in the course of her employment while performing her duties as a NYCB employee. In or about 2007, Warshun underwent spinal fusion surgery as a result of the aforementioned injury. Following the surgery, Warshun was restricted in her ability to climb stairs and lift objects.
In or about 2010, Warshan was, at her request, exclusively assigned to the drive-up banking facility located at 14 Conklin Street in Farmingdale, New York. From the time of the transfer until the termination of her employment, Warshun worked as a Financial Services Associate.
During Warshun's time at the drive-up facility, the manager of the Farmingdale branch was Lareyetta Fraser. In this role, Fraser evaluated Warshun's job performance. According to Warshun, her performance was never deemed to be poor or below acceptable levels. However, Warshun admits tat she had a weakness in her ability to " cross sell" banking products -- that is, to advise customers of additional banking services and products available to them. Warshun asserts that her opportunities to " cross sell" were " severely limited by the lack of direct contact inherent in dealing with customers sitting outside the building in their automobiles, one to three lanes distance, with communication restricted by microphones and background noise." (Compl, at ¶ 55.)
Prior to October 13, 2011, Warshun received more than one written 30-day warning for a failure to reconcile money at the end of her shift. Subsequent to that date, an employee of NYCB who had worked with Warshun was arrested for stealing money from the bank. Warshun alleges that, prior to October 13, 2011, the Defendants were aware of the facts and circumstances leading to the other employee's arrest, " yet failed to rescind the warnings issued to Warshun and others who had failed to reconcile at times when the arrested employee had also been working in the branch." (Compl, at ¶ 59.)
On October 13, 2011, Fraser phoned Warshun and told her to report for a corporate meeting at the Woodbury branch at 11 a.m. At the meeting, Warshun and approximately 50 additional employees from various branches were advised that they were being terminated. Apparently no questions were answered. The assembled employees, including Warshun, were given a packet by representatives of Human Relations, which included a letter stating: " After reviewing the company's staffing needs, it has been determined that your position will be eliminated." (Compl, at ¶ 63.)
Warshun was 53 years old when terminated. In this regard, Warshun alleges that of the approximately 50 ...