United States District Court, S.D. New York
MEMORANDUM AND OPINION
DEBRA FREEMAN, Magistrate Judge.
In this employment discrimination case, which is before me on consent pursuant to 28 U.S.C. § 636(c), plaintiff Lori Hahn ("Plaintiff" or "Hahn") has asserted discrimination and retaliation claims against her former employer, defendant Bank of America ("Defendant" or the "Bank"), under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), and the New York State Human Rights Law, N.Y. Exec. Law § 290, et seq. (McKinney) (the "NYSHRL"). Specifically, Plaintiff has claimed that the Bank discriminated against her and unlawfully terminated her employment on the basis of her national origin, created a hostile work environment, and retaliated against her for her complaints to the Bank's human resources department (known within the Bank as "Advice & Counsel"). Currently before the Court is Defendant's motion for summary judgment dismissing all of Plaintiff's claims against it. (Dkt. 31.)
In response to Defendant's motion, Plaintiff indicated that she wished to withdraw both her federal and state claims that she was discriminated against on the basis of her national origin, and to proceed solely on claims that, in retaliation for having complained of discrimination, she was harassed in the workplace and her employment was eventually terminated. ( See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated May 16, 2012 ("Pl. Opp. Mem.") (Dkt. 41), at 4, 12-14). For the reasons discussed below, Plaintiff's claims of discriminatory termination (as well as any claims that Plaintiff may have been asserting for discriminatory hostile work environment) are dismissed without prejudice. As to Plaintiff's remaining claims of retaliatory harassment and termination, summary judgment in Defendant's favor is granted.
A. Factual Background
1. Plaintiff's Employment
Plaintiff worked for the Bank as a Banking Center Manager ("BCM") from June 18, 2007, until her termination on November 2, 2011. (Defendant Bank of America N.A.'s Concise Statement of Undisputed Material Facts in Support of its Motion for Summary Judgment, dated Apr. 5, 2013 ("Def. 56.1 Stmt.") (Dkt. 33), ¶ 1; Plaintiff's Rule 56.1 Counter Statements of Material Facts, dated May 17, 2013 ("Pl. 56.1 Stmt.") (Dkt. 40), ¶ 1.) Plaintiff began her employment with the Bank at the Baldwin Harbor Banking Center. (Def. 56.1 Stmt. ¶ 2; Pl. 56.1 Stmt. ¶ 2.) Around June 2008, she transferred to the University Banking Center in Hempstead, New York. (Def. 56.1 Stmt. ¶ 6; Pl. 56.1 Stmt. ¶ 6.)
As a BCM, Plaintiff was responsible for managing the overall operations of her banking center ("Banking Center" or "Center"), coaching associates, ensuring that sales goals were met, and developing relationships with internal and external clients and customers. (Def. 56.1 Stmt. ¶ 3; Pl. 56.1 Stmt. ¶ 3.) Additionally, Plaintiff was ultimately responsible for the internal audit scores that her Banking Center received. (Def. 56.1 Stmt. ¶ 4; Pl. 56.1 Stmt. ¶ 4.) Internal audits were conducted by an independent group within the Bank known as the Banking Center Control Review ("BCCR") team. ( Id .) Throughout Plaintiff's employment with the Bank, regular operational inspections were also performed by the Bank's Consumer Market Managers ("CMMs"). ( Id .)
When Plaintiff began her employment with the Bank in 2007, she reported to William Cherry ("Cherry"), a CMM. (Def. 56.1 Stmt. ¶ 2; Pl. 56.1 Stmt. ¶ 2.) Cherry, in turn, reported to the Consumer Market Executive ("CME"). ( Id .) In 2008 or 2009, Plaintiff began reporting to CMM Wyder Tutiven ("Tutiven") (Def. 56.1 Stmt. ¶ 7; Pl. 56.1 Stmt. ¶ 7), who reported to CME Anthony Volpicello ("Volpicello"). ( Id. ) Around March of 2011, when Tutiven was replaced by CMM Maria Loccisano ("Loccisano"), Plaintiff began reporting to Loccisano (Def. 56.1 Stmt. ¶ 11; Pl. 56.1 Stmt. ¶ 11), who, like her predecessor, reported to Volpicello ( id .).
2. Plaintiff's Early Performance Issues
Once in 2008 and once in 2010, Plaintiff's Banking Center failed its routine audit. (Def. 56.1 Stmt. ¶¶ 5, 8; Pl. 56.1 Stmt. ¶ 5.) In 2008, Plaintiff's Center failed the audit with a 78.7% ("4" - "Unsatisfactory"),  and, as a result, Plaintiff's then-CMM, Cherry, issued Hahn a written warning for failure to meet performance expectations. (Def. 56.1 Stmt. ¶ 5; Pl. 56.1 Stmt. ¶ 5.) On June 23, 2010, Plaintiff's Center again failed its operational review audit, with a score of "5." (Def. 56.1 Stmt. ¶ 8; Pl. 56.1 Stmt. ¶ 8.) In light of that failing audit score, Plaintiff's CMM at that time, Tutiven, issued Plaintiff a verbal warning on or about July 1, 2010. (Def. 56.1 Stmt. ¶ 9.)
After the second failed audit, Tutiven expressed to Plaintiff that he was disappointed that operational-process inspections, which were supposed to be taking place, and which were part of Plaintiff's responsibilities as the branch manager, were not being performed. (Def. 56.1 Stmt. ¶ 8 & Ex. C (Excerpts from deposition of Wyder Tutiven ("Tutiven Dep.")), at 39-44 & Ex. 2.) Pursuant to standard Bank procedure, Tutiven also called Advice & Counsel to notify that department that he had given Plaintiff a verbal warning. (Def. 56.1 Stmt. ¶ 9.)
Shortly thereafter, in November 2010, Tutiven followed up on a complaint that an associate had made about Plaintiff to a CMM who was covering for Tutiven while he was out of the office. (Def. 56.1 Stmt. ¶ 10; Pl. 56.1 Stmt. ¶ 10; Tutiven Dep., at 47-48 & Ex. 1.) In connection with this, Tutiven coached Plaintiff on her communication style and approach with her associates. ( See Def. 56.1 Stmt. ¶ 10; Pl. 56.1 Stmt. ¶ 10; Tutiven Dep., at 50.)
3. Plaintiff's Interactions with Loccisano
a. Initial Interactions (May 2010)
Prior to replacing Tutiven permanently in March 2011, Loccisano had served as a temporary CMM for a period of time in 2010. (Def. 56.1 Stmt. ¶ 12; Pl. 56.1 Stmt. ¶ 12.) During that time, Plaintiff and Loccisano had a few interactions, which Plaintiff documented in an email to herself. (Def. 56.1 Stmt. ¶ 13 & Ex. A (Excerpts from deposition of Lori Hahn, ("Hahn Dep.")), at Ex. 2; Pl. 56.1 Stmt. ¶ 13.) In that email, Plaintiff wrote that, in two such interactions on May 19, 2010 and May 20, 2010, she had felt "very uncomfortable" around Loccisano, that Loccisano had showed "no empathy" regarding a situation that an employee was dealing with at the time, and that Plaintiff had concerns about Loccisano's managerial approach. (Def. 56.1 Stmt. ¶ 13; Hahn Dep., at Ex. 2; Pl. 56.1 Stmt. ¶ 13.) Plaintiff indicated that she thought Loccisano should "be more professional and try to build more of a connection with employees when coming in." (Hahn Dep., at Ex. 2.)
b. Loccisano's Alleged Remark Regarding Plaintiff's National Origin, and Plaintiff's Alleged Complaint (July and Early August, 2011)
Plaintiff officially started reporting to Loccisano in March, 2011, and, in a meeting held on or about July 28, 2011, Loccisano delivered Plaintiff's annual performance review. (Def. 56.1 Stmt. ¶ 59; Pl. 56.1 Stmt. ¶ 59.) Plaintiff received a "satisfactory" rating on her written performance assessment, part of which was completed by her former-CMM Tutiven. ( Id. ; Affidavit of Lori Hahn, sworn to May 14, 2013 ("Pl. Aff.") (Dkt. 42), ¶ 4.) Plaintiff, however, contends that, toward the end of the meeting with Loccisano, as they were talking about a customer-satisfaction tool, Loccisano suddenly asked Plaintiff, "What nationality are you?" (Def. 56.1 Stmt. ¶ 59; Pl. 56.1 Stmt. ¶ 59; Pl. Aff. ¶ 4.) Plaintiff told her that she was German, and Loccisano allegedly replied "[O]h, that's why you're so thick-headed." ( Id. )
Although the Bank has no record of having received a complaint from Plaintiff at or near this time ( see infra, at Background, Part A(3)(f)), and Loccisano states that she was unaware of any complaint by Plaintiff until after August 23, 2011 ( see infra, at Background, Part A(3)(f)), Plaintiff contends that, sometime in early August, she lodged a complaint with Advice & Counsel about Loccisano's comment (Pl. Aff. ¶ 4). Plaintiff further maintains that, after she did so, Loccisano began harassing her on a daily basis, by "writing [her] up for unsubstantiated infractions; screaming at [her] on the telephone while [she] was with a customer; screaming at [her] in front of customers, or simply having [her] send [Loccisano] an email when [Plaintiff] arrived at work in the morning[, ] when no other manager was required to do so." (Pl. Aff. ¶ 5; see also id . ¶ 6 (Plaintiff stating that Loccisano subjected her to a "continual onslaught of abuse").) The circumstances of some of these purported instances of harassment are described below.
c. The ATM Incident at Plaintiff's Banking Center (August 12, 2011)
On August 12, 2011, there was an ATM cross-load error at Plaintiff's Center, resulting in the wrong denominations of bills being loaded into one of the Center's ATMs (the "ATM Incident"). (Def. 56.1 Stmt. ¶ 15; Pl. 56.1 Stmt. ¶ 15.) At first, it appeared that $80, 000 was missing from the ATM. ( Id .) Upon further investigation, it was revealed that the ATM cassette containing $50 bills had been placed where the cassette containing $20 bills should have been placed (Def. 56.1 Stmt. ¶ 20), and that $90, 000 had been improperly dispensed (Hahn Dep., at 86:7-15, 97:15-20). Joni Hutchinson ("Hutchinson"), a full-time bank teller, and Maria Soares ("Soares"), the personal banker at the Center, had loaded the ATM earlier that week. (Def. 56.1 Stmt. ¶ 16; Pl. 56.1 Stmt. ¶ 16.) At her deposition, however, Plaintiff admitted that the ATM Incident was ultimately her responsibility. (Def. 56.1 Stmt. ¶ 20.)
Both Soares and Hutchinson were out of the country at the time the ATM Incident was discovered, which also raised significant concerns. (Def. 56.1 Stmt. ¶ 16; Pl. 56.1 Stmt. ¶ 16.) After learning of the error, Plaintiff instructed another Bank employee to shut down the ATM and determine how the error had occurred, because Plaintiff was not trained on how to use that particular ATM. (Def. 56.1 Stmt. ¶ 17; Pl. 56.1 Stmt. ¶ 17; Hahn Dep., at 78, 81, 83.) Plaintiff then notified Loccisano about the ATM error, telling Loccisano that she did not yet know what had caused the error. (Def. 56.1 Stmt. ¶ 18.) Thereafter, Loccisano arrived at Plaintiff's Center, investigated the error, and performed a cash count. (Def. 56.1 Stmt. ¶ 19; Pl. 56.1 Stmt. ¶ 19.)
The ATM Incident occurred the day before Plaintiff was scheduled to take a one-week vacation. (Def. 56.1 Stmt. ¶ 21; Pl. 56.1 Stmt. ¶ 21.) Three of the five associates in Plaintiff's Banking Center were on leave at that time, so Plaintiff's absence would have left only two associates at the Center. ( Id .) Plaintiff contends that she had previously received permission to go on this vacation, but that the staffing in her Center had changed at the last minute. (Hahn Dep., Ex. 3.) Defendant states that, during Loccisano's visit to the Banking Center on the day of the ATM Incident, Loccisano expressed concerns about Plaintiff's management skills and about her decision to take vacation at the same time that three other associates would be absent. (Def. 56.1 Stmt. ¶ 22; Pl. 56.1 Stmt. ¶ 22.) Specifically, Defendant contends, and Plaintiff disputes, that Loccisano had concerns that Plaintiff provided her inconsistent information about the ATM Incident and that Plaintiff did not display a sense of urgency or concern regarding the Incident. (Def. 56.1 Stmt. ¶ 23.) In addition, Loccisano advised Plaintiff that she would send someone to visit and inspect the Banking Center because Loccisano felt that there were problems with the Center's operations and lack of organization. (Def. 56.1 Stmt. ¶ 22; Pl. 56.1 Stmt. ¶ 22.)
d. Loccisano's Follow-Up Telephone Call With Plaintiff (August 13, 2011)
After the ATM Incident, Plaintiff did not immediately go on vacation, as previously planned (Def. 56.1 Stmt. ¶ 24; Pl. 56.1 Stmt. ¶ 24), and she and Loccisano spoke by telephone the following day (Def. 56.1 Stmt. ¶¶ 24-25; Pl. 56.1 Stmt. ¶¶ 24-25). Despite slight differences in their accounts, the parties do not materially dispute what happened on that August 13 call.
According to Plaintiff, she called Loccisano to discuss whether Loccisano was sending a teller to help Plaintiff at the Center, and during the call, they began discussing the ATM Incident. (Pl. Aff. ¶¶ 7-8.) It is undisputed that Loccisano criticized Plaintiff, on the call, for not requesting a floating teller to work at the Center, and also said that the Center's key and "combo" book used to access the vault were a "mess." (Def. 56.1 Stmt. ¶ 25; Pl. 56.1 Stmt. ¶ 25; Pl. Aff. ¶ 8.) Plaintiff states that she informed Loccisano, for the second time, that a teller's car had been stolen and the teller had not reported to work that day, leaving the Banking Center with only one associate. (Pl. Aff. ¶ 8.) Plaintiff also asserts that she denied Loccisano's accusations about the state of the key and combo book, and that Loccisano then began yelling at her. (Def. 56.1 Stmt. ¶ 25; Pl. 56.1 Stmt. ¶ 25.) In fact, Plaintiff contends that Loccisano began screaming so loudly that anyone could hear through the phone, which prompted Plaintiff to put the phone down so that a customer could not hear the screaming. (Pl. Aff. ¶ 7.) Plaintiff also asserts, though, that she told Loccisano that she had a customer at her desk and that she was embarrassed by the yelling, so she had to go. (Pl. Aff. ¶ 7; Pl. 561 Stmt. ¶ 25.) In any event, it appears undisputed that Plaintiff hung up the phone before getting any sort of acknowledgement from Loccisano. ( See Def. 56.1 Stmt. ¶ 25; Hahn Dep., at 114-15 & Ex. 4 (Email dated 8/13/2011 to Plaintiff's personal email address from Plaintiff's work email address describing the phone call with Loccisano and stating "I hung up on her"); Def. 56.1 Stmt. ¶ 33 (Plaintiff told Advice & Counsel that she hung up on Loccisano); Pl. 56.1 Stmt. ¶ 33.)
Plaintiff further contends that, as a general matter, Loccisano "berate[d]" her for her lack of diligence in connection with the ATM Incident, and that, following that incident, Loccisano began to "scream" at her on a continual basis. (Pl. Aff. ¶ 8.)
e. Operational Inspection of Plaintiff's Banking Center (August 15, 2011)
Two days later, on August 15, 2011, Loccisano called Advice & Counsel to seek guidance on the proper discipline for Plaintiff's behavior in (1) mishandling the ATM incident and (2) being insubordinate for purportedly hanging up on Loccisano during their August 13 phone call. (Def. 56.1 Stmt. ¶ 26; Pl. 56.1 Stmt. ¶ 26.) According to Defendant, and Plaintiff does not dispute this, Loccisano was unaware, as of the date of her call to Advice & Counsel, that Plaintiff had made any complaint about her. ( Id. ) Advice & Counsel advised Loccisano to arrange for an operational inspection of Plaintiff's Banking Center and to call back regarding the results of this inspection, and also to discuss Plaintiff's insubordination. (Def. 56.1 Stmt. ¶ 28; Pl. 56.1 Stmt. ¶ 28.)
In accordance with this advice, Loccisano arranged for an inspection of Plaintiff's Banking Center to take place the following week, while Plaintiff was away on vacation. (Def. 56.1 Stmt. ¶ 29; Pl. 56.1 Stmt. ¶ 29.) Plaintiff recalls that, when she returned from vacation, sometime around August 22, 2011, Nadine Brenson, the BCM who had conducted the investigation in her absence, went over with her a checklist of the issues she had found during the investigation. ( Id .)
On August 23, 2011, at approximately 4:11 p.m., Loccisano reported to Advice & Counsel that the inspection had revealed operational concerns with the Center's key and combo log and other inventory issues, and asked for guidance from Advice & Counsel as to what the proper disciplinary action should be, in light of the disorganized state of the Center and Plaintiff's insubordination in hanging up on Loccisano. (Def. 56.1 Stmt. ¶ 30.) Advice & Counsel advised Loccisano to speak with Plaintiff about the operational issues, as well as about Plaintiff's behavior on the August 13 telephone call. ( Id. ) On or about that same day, Loccisano and Plaintiff spoke regarding the inspection results. (Def. 56.1 Stmt. ¶ 31; Pl. 56.1 Stmt. ¶ 31.) Loccisano also asked Plaintiff whether she should have returned Loccisano's call on August 13, and Plaintiff responded, "[N]o." (Def. 56.1 Stmt. ¶ 31; see also Loccisano Dep., at 116.)
f. Calls by Loccisano and Plaintiff to Advice & Counsel (August 23, 2011)
After her conversation with Plaintiff, Loccisano called Advice & Counsel at approximately 6:15 p.m. on August 23, 2011, to report the results of that conversation. (Def. 56.1 Stmt. ¶ 32.) During the call, Advice & Counsel discussed with Loccisano her options, including that she could issue Plaintiff a written warning for performance and a final written warning for inappropriate behavior. ( Id .) According to Defendant, Loccisano had still not received any complaints by Plaintiff about her as of the time of this call, and Plaintiff does not refute this. ( See id. ; Pl. 56.1 Stmt. ¶ 32.)
At approximately 7:30 p.m. on August 23 (the same evening that Loccisano had contacted Advice & Counsel), Plaintiff, herself, contacted Advice & Counsel, to complain about Loccisano's treatment of her. (Def. 56.1 Stmt. ¶ 33; Pl. 56.1 Stmt. ¶ 33.) Plaintiff spoke with Advice & Counsel HR Advisor Oliver Whitelaw ("Whitelaw") and described how Loccisano had allegedly reacted to the ATM Incident by yelling at Plaintiff and questioning her about whether it was a "good idea for [Plaintiff] to go on vacation." ( Id. ) Plaintiff then described how, on August 13, she reported to work even though she was on vacation, and how Loccisano again questioned her, over the phone, about her vacation plans. ( Id. ) Plaintiff claimed that Loccisano was yelling so loudly during the August 13 telephone call that Plaintiff was forced to hang up the telephone. ( Id. ) Plaintiff also told Whitelaw that, a few weeks prior to the ATM incident, Loccisano had made a comment about Plaintiff's German heritage - i.e ., that her heritage would explain why she was "so thick-headed." (Def. 56.1 Stmt. ¶ 34; Pl. 56.1 Stmt. ¶ 34.) According to Defendant, this was Plaintiff's first complaint regarding that alleged comment. (Def. 56.1 Stmt. ¶ 36.)
g. Discipline Resulting from the ATM Incident (August 31, 2011)
One week later, on August 31, 2011, Loccisano gave Plaintiff a written warning for failure to meet performance expectations and a final written warning for inappropriate behavior for Plaintiff's actions on August 12-13. (Def. 56.1 Stmt. ¶ 38; Pl. 56.1 Stmt. ¶ 38.) At the same time, Loccisano counseled Plaintiff about her lack of leadership concerning the ATM Incident and for taking vacation when she had previously approved a three-week vacation for her only personal banker. ( Id. ) Loccisano also advised Plaintiff that the operational inspection conducted while Plaintiff was on vacation revealed several compliance violations. ( Id. ) Plaintiff refused to execute both written warnings. (Def. 56.1 Stmt. ¶¶ 38, 40; Pl. 56.1 Stmt. ¶¶ 38, 40.)
On that same day, Plaintiff called Advice & Counsel again, to discuss the fact that she had refused to execute the written warnings that had been given to her. (Def. 56.1 Stmt. ¶ 41; id. at Ex. F (Excerpts from deposition of Oliver Whitelaw ("Whitelaw Dep.")), at 15:22-16:7 & Ex. 11, at BANK0421.)
At some point after the ATM Incident, Plaintiff herself issued final written warnings to Hutchinson and Soares, the two associates who were involved in loading the ATM. (Def. 56.1 Stmt. ¶ 20; Hahn Dep., at 187-90.) Even though Soares had not been given any written warnings prior to the ATM Incident, Plaintiff nonetheless gave her a final written warning because of Soares's direct involvement in loading the ATM, and the amount of money that was lost. (Hahn Dep., at 189-90.)
h. Meeting To Address Plaintiff's Complaint About Loccisano's Alleged Derogatory Remark (September 7, 2011)
After Plaintiff spoke with him on August 23, Whitelaw contacted Loccisano's manager, Volpicello, and advised him of the derogatory comment allegedly made by Loccisano. (Def. 56.1 Stmt. ¶ 42; Pl. 56.1 Stmt. ¶ 42.) Until that time, Volpicello had been unaware of any complaints by Plaintiff about Loccisano, so he arranged to hold a meeting with Plaintiff and Loccisano on September 7, 2011, to discuss Plaintiff's concerns. ( Id. ) At that meeting, Loccisano apologized to Plaintiff for the alleged comment about Plaintiff's national origin, and Volpicello expressed concerns about the ATM Incident. (Def. 56.1 Stmt. ¶ 43; Pl. 56.1 Stmt. ¶ 43.) Thereafter, ...