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Shemendera v. First Niagara Bank

United States District Court, W.D. New York

February 28, 2014



WILLIAM M. SKRETNY, Chief District Judge.


Robin Shemendera alleges that her former employer, First Niagara Bank, discriminated against her on the basis of her age in violation of the Age Discmination in Employment Act ("ADEA") and New York State's Human Rights Law.

Currently before this Court is First Niagara's motion for summary judgment. For the following reasons, that motion is granted.


Robin Shemendera, over 40 years of age at all relevant times, was a manager in the Items Processing Department at First Niagara from December 2005 to February 2012. (Def.'s Stmnt, ¶¶ 2; Docket No. 19-40.) According to the parties, this department "encompasses a number of back-office' banking functions, including returns, research and adjustments, check processing, and statement rendering." ( Id., ¶ 10.) During her employment, First Niagara completed several acquisitions, resulting in increased workload for Shemendera and her peers. ( Id., ¶ 13.) At one point, her supervisor, Beth Neidrauer, required her to process roughly three times the amount of statements compared to when she was first hired, and Neidrauer told her she had "do whatever was needed" to get the job done. (Compl., ¶ 18.) Shemendera contends that younger employees - Carrie Faulise and Tamara Canion - received assistance in meeting these demands, but that she did not. In 2010, Shemendera was also denied an annual bonus - referred to at First Niagara as a "pinnacle bonus." She also alleges that First Niagara perpetrated various other slights, including failing to provide her with new equipment, denying her request for a cell phone, and maintaining a cold temperature in her work area. She further alleges that Neidrauer made inappropriate comments. On October 3, 2011, during an annual review, Shemendera contends that Neidrauer told her, "this is all your fault, come over here so I can put my hands around your neck so I can strangle you." (Compl., ¶ 32.) Shemendera admits, however, that Neidrauer never made any comments about her age, or about anybody else's age. (Def.'s Stmnt. ¶ 54.) According to Shemendera, in February 2012, her employment was "terminated/severed." (Shemendera Decl., ¶ 27; Docket No. 29-2.)

Shemendera filed a formal charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on November 21, 2011. The EEOC issued "A Right to Sue Notice" on December 28, 2011, authorizing her to bring this suit in federal court. ( Id., ¶ 9.)


A. Summary Judgment Standard

Summary judgment is appropriate, even in a discrimination case, "where there is no genuine issue of material fact to be tried, and the facts as to which there is no such issue warrant the entry of judgment for the moving party as a matter of law." Kaytor v. Elec. Boat Corp. , 609 F.3d 537, 545 (2d Cir. 2010) (citing Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 249-50, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986)); Weinstock v. Columbia Univ. , 224 F.3d 33, 41 (2d Cir. 2000). A "genuine" dispute exists "if the evidence is such that a reasonable jury could return a verdict for the non-moving party." Anderson , 477 U.S. at 248. In determining whether a genuine dispute regarding a material fact exists, the evidence and the inferences drawn from the evidence "must be viewed in the light most favorable to the party opposing the motion." Adickes v. S. H. Kress & Co. , 398 U.S. 144, 158-59, 90 S.Ct.1598, 1609, 26 L.Ed.2d 142 (1970) (internal quotations and citation omitted).

"Only when reasonable minds could not differ as to the import of evidence is summary judgment proper." Bryant v. Maffucci , 923 F.2d 979, 982 (2d Cir. 1991) (citation omitted). Indeed, "[i]f, as to the issue on which summary judgment is sought, there is any evidence in the record from which a reasonable inference could be drawn in favor of the opposing party, summary judgment is improper." Sec. Ins. Co. of Hartford v. Old Dominion Freight Line, Inc. , 391 F.3d 77, 82-83 (2d Cir. 2004) (citations omitted). The function of the court is not "to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson , 477 U.S. at 249.


Under the ADEA, it is "unlawful for an employer... to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a)(1). When a plaintiff alleges disparate treatment, "liability depends on whether the protected trait [age] actually motivated the employer's decision." Hazen Paper Co. v. Biggins , 507 U.S. 604, 610, 113 S.Ct. 1701, 123 L.Ed.2d 338 (1993). But mixed motivation is not enough: "[t]o establish a disparate-treatment claim under the plain language of the ADEA, ... a plaintiff must prove that age was the but-for' cause of the employer's adverse decision." Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 129 S.Ct. 2343, 2350, 174 L.Ed.2d 119 (2009).

In determining whether a plaintiff has met this burden, courts in this circuit apply the three-step McDonnell Douglas burden shifting scheme. See McDonnell Douglas Corp. v. Green , 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973); ...

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