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Fontecchio v. ABC Corp.

United States District Court, S.D. New York

January 23, 2015

ABC CORP., s/h/a HSBC BANK USA, N.A., et al., Defendants.

Karen L. Zdanis, Nanuet, New York

Michael David Diederich, Jr., Stony Point, New York Counsel for Plaintiff

Vincent Avallone, C. Bryan Cantrell, K&L Gates LLP, Newark, New Jersey Counsel for Defendants.


CATHY SEIBEL, District Judge.

Before the Court is Defendants' Motion for Summary Judgment. (Doc. 49.) For the following reasons, Defendants' Motion is granted.


The following facts are set forth based on Defendants' Local Civil Rule 56.1 statement and Plaintiff's response, Plaintiff's Local Civil Rule 56.1 statement and Defendants' response, and the parties' supporting materials, and are undisputed except as noted.

Plaintiff was employed by Defendant HSBC Bank USA, N.A. ("HSBC") for twenty-nine years before her employment ended in July of 2011, when she was forty-seven years old. (P's Response to 56.1 ¶ 1.)[1] Plaintiff worked as a branch manager for several years, but from March 2009 until June 13, 2011, she was a market manager. ( Id. ¶ 2.) As a market manager, Plaintiff supervised the branch managers of nine retail bank branches in Rockland County, New York. ( Id. ) Plaintiff reported to Defendant Nina Tyzik, District Executive for the Empire District, a woman who was fifty-eight years old in July 2011. ( Id. ¶ 3.) Tyzik reported to Regional President Andrew Ireland. ( Id. )

In November 2010, HSBC created two more market manager positions in the Empire District. ( Id. ¶ 39.) Christopher Gomez and Lulzim Hoxha, who were both branch managers reporting to Plaintiff, were selected to fill the new market manager positions. ( Id. ) For the year 2009, Gomez had been selected by Tyzik as "Manager of the Year" and Hoxha had been selected by Tyzik as "Rookie of the Year." ( Id. ¶ 40.) Plaintiff wrote in an email to Tyzik that she agreed with those decisions and would have recommended them. ( Id. )

In June 2011, HSBC reorganized its retail bank management structure nationwide. ( Id. ¶ 50.) After the restructure, the district executive, market manager, and premier market leader[2] positions were eliminated and two new positions - district director and retail banking sales manager ("RBSM") - absorbed the responsibilities of the old positions. ( Id. ¶ 51.)[3] In the Upstate New York Region, four district executive, four premier market leader, and fourteen market manager positions were replaced by two district director and fifteen RBSM positions. ( Id. ¶ 52.)

The new district directors and RBSMs were selected by a group of four regional presidents, including Ireland. ( Id. ¶ 53); (Ds' Response to 56.1 ¶ 47).[4] Ireland claims that he ranked Plaintiff lower than Gomez, Hoxha, and Niall Lepper ("Lepper"), a premier market leader, for an RBSM position because he was not confident that she would be as effective a sales coach or manager. (Ireland Decl. ¶ 11.)[5] He felt that given the increased responsibility of district directors after the restructuring, RBSMs would need strong leadership, accountability, and coaching skills. ( Id. ) While he was confident Plaintiff had strong skills in retail banking operations, he questioned her coaching and leadership skills. ( Id. ) Gomez, Hoxha, and Lepper were selected to be RBSMs and Plaintiff was not. ( See P's Response to 56.1 ¶ 57); (P's Decl. ¶ 171). Neither the age nor gender of any of the candidates were discussed during the meeting. (P's Response to 56.1 ¶ 62.)

Defendants assert that Tyzik did not participate in the selection of the district directors or RBSMs and that Ireland did not speak to Tyzik before the meeting about who to select as an RBSM. ( Id. ¶ 59.) Defendants also assert that the regional presidents agreed they would select the RBSMs without input from anyone who might become a district director, because the prospective district directors were being evaluated by the same group as part of the same selection process. ( Id. ¶ 60.) Thus, according to Defendants, Tyzik was never informed of the meeting. ( Id. )[6]

Ireland did not ask about or review any documents in preparation for selecting the RBSMs. ( Id. ¶ 61.) Instead, he made his assessments based on his own interactions with the candidates. ( Id. ) Ireland observed Plaintiff at a meeting on January 12, 2011. ( Id. ) The meeting was attended by Plaintiff, Ireland, Tyzik, Hoxha, Gomez, and Lepper. ( Id. ¶ 47.) Defendants assert, and Plaintiff denies, that at the meeting Ireland asked each manager to give a presentation about the "movable middle" - middle-of-the-road performers who would benefit from extra management. ( Id. ¶¶ 46-47.) Plaintiff testified at her deposition, however, that she and the others each made a presentation at the meeting. (Avallone Decl. Ex. A ("P's Dep.") at 198:14-18.)[7] Ireland claims he believed Plaintiff's presentation was poor and showed a lack of knowledge of her market and that she did not have a plan to improve the "movable middle." (Ireland Decl. ¶ 6.) He believed Gomez, Hoxha, and Lepper presented well. ( Id. ¶ 7.)

Ireland communicated with Plaintiff via email on two occasions. (P's Response to 56.1 ¶¶ 29, 31.) Plaintiff disputes whether these emails were "coaching" opportunities or constituted feedback on Plaintiff's performance. ( Id. ¶¶ 29-31.) Ireland never had a one-on-one meeting with Plaintiff before the RBSM decisions were made. ( See Ds' Response to 56.1 ¶ 16.) Nor did Ireland ever directly supervise Plaintiff or the other RBSM candidates. ( Id. ¶ 49.) He remembered meeting with Gomez and Hoxha on one occasion each. ( Id. ¶ 54.)

On June 13, 2011, Ireland sent Plaintiff an electronic meeting invitation with the title "Mkt ck in." ( Id. ¶ 66.) The invitation stated that Ireland "[w]ant[ed] to catch up for 30 mins [ sic ]." ( Id. ) The actual purpose of the meeting was to discuss the demise of the market manager role. ( Id. ¶ 67.) At the meeting, Ireland told Plaintiff the market manager position was being eliminated bank-wide, effective immediately. ( Id. ¶ 68.) After the meeting, Plaintiff met with an employee relations consultant, who gave Plaintiff an "Employee Package" containing information on severance benefits. ( Id. ¶ 70.) Soon after, Tyzik called Gomez and Hoxha, who had been scheduled for similar meetings, to inform them that their meetings were cancelled and their jobs were "safe." (Ds' Response to 56.1 ¶ 40.) On June 27, 2011, Plaintiff received a personalized severance agreement from HSBC. (P's Response to 56.1 ¶ 74.) The agreement is dated June 14, 2011. (Avallone Decl. Ex. FF.)

Two or three days after Plaintiff's meeting with Ireland, Tyzik informed Plaintiff that there was an opening for a branch manager position at the Highland Falls branch, at the same salary Plaintiff had been receiving. (P's Response to 56.1 ¶ 72.) Plaintiff applied for the position on June 17, 2011. ( Id. ) On June 29, 2011, HSBC generated an offer for Plaintiff of the Highland Falls branch manager position. ( Id. ¶ 76.) But on the same day, before the offer was conveyed to her, Plaintiff withdrew her application, in part because she was offended that a notice she had received, pursuant to the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 626(f), indicated that employees had been chosen for the reduction in force based on skill set and performance. ( Id . ¶¶ 74-77.) Plaintiff's termination took effect July 14, 2011, thirty days after she was informed that her market manager position had been eliminated. ( Id. ¶ 78.) Plaintiff accepted a job at Key Bank, a competitor of HSBC, on August 9, 2011. ( Id. ¶ 73.) She had applied for that job on June 21, 2011. ( Id. )

During Plaintiff's employment with HSBC, Tyzik sometimes referred to female employees as "girls, " saying, "You go girl!" ( Id. ¶ 83.) Plaintiff claims Tyzik referred to a male colleague as her "work husband, " and told employees that she had "moles" in the human resources department. ( Id. ¶¶ 89-90.) Plaintiff also alleges that Tyzik referred to her variously as "old school, " "older, " "too nice, " and "motherly, " and told her to be "more like the boys." (P's Decl. ¶¶ 12, 15, 17.) Plaintiff also alleges that Tyzik expressed dislike toward another female employee, Denise Slettene. (P's Response to 56.1 ¶ 94.) Plaintiff told Tyzik she did not agree with putting Slettene on probation. ( Id. ¶ 95.)

After filing claims with the New York State Division of Human Rights, (Avallone Decl. Exs. KK, NN), and obtaining a right-to-sue letter from the Equal Employment Opportunity Commission, ( Id. Ex. OO), Plaintiff filed this action on September 14, 2012, (Doc. 1). In her Second Amended Complaint, Plaintiff alleged disparate treatment, hostile work environment, and retaliation in violation of the New York State Human Rights Law ("NYSHRL") against HSBC and Tyzik, and disparate treatment, hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), the ADEA, and the Employee Retirement Income Security Act ("ERISA") against HSBC. (Doc. 10.) I dismissed Plaintiff's ERISA and federal retaliation claims, ( see Doc. 31), and, after discovery, this motion followed.


A. Legal Standards

1. Summary ...

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