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Garnett-Bishop v. New York Community Bancorp., Inc.

United States District Court, E.D. New York

March 2, 2017

NATALIE GARNETT-BISHOP, et al., Plaintiffs,
v.
NEW YORK COMMUNITY BANCORP, INC., and NEW YORK COMMUNITY BANK Defendant.

          The Law Office of Patrick W. Johnson Co-counsel for the Plaintiffs By: Patrick W. Johnson, Esq., Of Counsel

          Pavlounis & Sfouggatakis Co-counsel for the Plaintiffs By: Andrew G. Sfouggatakis, Esq., Of Counsel

          Littler Mendelson Attorneys for the Defendants By: Amy Laura Ventry-Kagan, Esq., Robert M. Wolff, Esq., James P. Smith, Esq., Linda H. Harrold, Esq., Of Counsel

          MEMORANDUM OF DECISION & ORDER

          ARTHUR D. SPATT United States District Judge.

         Thirty-one Plaintiffs originally brought five separate actions against the Defendants New York Community Bancorp, Inc., and New York Community Bank (the “Defendants” or “NYCB”). The Court consolidated the five actions, and upon a motion by the Defendants, dismissed several of the Plaintiffs' various causes of action as well as several of the Plaintiffs. Presently, there are 25 Plaintiffs. All 25 Plaintiffs have causes of action against the Defendants for alleged violations of the federal Worker Adjustment and Retraining Notification Act (the “federal WARN Act”), 29 U.S.C. § 2101 et seq., and the New York State Worker Adjustment and Retraining Notification (the “NYS WARN Act”) Act, N.Y. Labor Law § 860 et seq.. Seventeen of the Plaintiffs have causes of action for gender discrimination in violation of the New York State Human Rights Law, N.Y. Exec. Law § 296 (the “NYSHRL”). The Plaintiff Natalie Garnett-Bishop (Garnett-Bishop”) has causes of action for discrimination based on gender, age, and race in violation of the NYSHRL, Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, et seq. (“Title VII”); and the Age Discrimination in Employment Act, 29 U.S.C. § 621, et seq. (the “ADEA”).

         Presently before the Court are two motions: a motion by the Plaintiffs for summary judgment pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.” or “Rule”) 56 for judgment as a matter of law on their NYS WARN claims; and a motion by the Defendants for summary judgment pursuant to Rule 56 dismissing all of the Plaintiffs' claims. For the following reasons, the Court grants the Defendants' motion in its entirety, and denies the Plaintiffs' motion in its entirety.

         I. BACKGROUND

         A. Relevant Procedural Background

         Five separate actions were brought against the Defendants, as well as several individual Defendants who were eventually dismissed from the action. These actions arose from NYCB's decision to reduce its workforce (the “RIF”) on October 13, 2011 by terminating approximately 320 employees.

         On January 8, 2014, the Court granted the Defendants' unopposed motion pursuant to Rule 42 to consolidate the five separate actions. The Court also directed the Plaintiffs in those five actions to file a consolidated complaint combining these claims and stated that the “[c]onsolidated [c]omplaint shall not assert new allegations against the Defendants.” The cases were consolidated as one action under Case Number 12-CV-2285, which was the first of the five lawsuits to be filed, and the other four cases were closed. In addition, the Court dismissed without prejudice all pending motions with leave to renew after the Plaintiffs filed a Consolidated Complaint.

         On February 7, 2014, thirty-one Plaintiffs, all of whom were employees of the Defendants whose employment was terminated, filed a consolidated complaint. The consolidated complaint alleged, among other matters, that their terminations were the result of employment discrimination based on age, race, national origin, gender and/or disability and retaliation in violation of Title VII; the ADEA; and the ADA. The Plaintiffs also asserted claims pursuant to the federal WARN Act and the NYS WARN Act. The Plaintiffs further asserted state law causes of action against the Defendants for violation of the NYSHRL, intentional infliction of emotional distress, and negligent infliction of emotional distress.

         On November 6, 2014, the Court issued a Memorandum of Decision and Order dismissing: all claims except: 1) Garnett Bishop's claims that her termination was based on gender, age, and racial discrimination in violation of Title VII, the ADEA, and the NYSHRL; 2) seventeen Plaintiffs, Maria Alexander, Donna Berchiolli, Shannon Byrnes, Donna Cappello, Mary Ellen Cassidy, Theresa Falco, Nansi Ghobrial, Celeste McCormack, Leslie Morency, Monica Ortega, Katia Page, Candice Petrancosta, Addorolata Quiles, Jacqueline Ramos, Gelsomina Tierno, Samantha Zielinski and Audrey Zuckerman (collectively, the “Cappello Plaintiffs”), claims that their pay, promotions, and salaries were the result of gender discrimination in violation of the NYSHRL Plaintiffs; and 3) the claims brought by Garnett-Bishop, the Cappello Plaintiffs, and Plaintiffs Helen Arniotis, Ilene Branfman, Claire Byrnes, Geraldine Collins, Dee Cooper-Jones, and Gina Decrescenzo (collectively “Cooper-Jones Plaintiffs”) alleging that they were not properly notified of their pending terminations in violation of the federal and NYS WARN Act.

         On May 6, 2016, the Plaintiffs filed a motion for summary judgment on their NYS WARN Act claims. The Defendants filed a cross-motion for summary judgment to dismiss all of the Plaintiffs' claims.

         B. Factual Background

         1. As to the Defendants' 56.1 Statement and the Plaintiff's Purported 56.1 Statement

         The Local Rules of the United States District Courts for the Southern and Eastern Districts of New York (the “Local Rule(s)”) direct parties moving for summary judgment to file a “short and concise statement . . . of the material facts to which the moving party contends there is no genuine issue to be tried.” Local Rule 56.1(a). Parties who oppose the motion are similarly directed to respond to each numbered paragraph, and “each statement controverting any statement of material fact, must be followed by citation to evidence which would be admissible, set forth as required by Fed.R.Civ.P. 56(c).” Local Rule 56.1(d).

         Federal Rule of Civil Procedure 56 states that a party who either asserts or disputes a fact must support that assertion by “citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials.” Fed.R.Civ.P. 56(c)(1)(A) (emphasis added).

         Here, the Plaintiffs have failed to follow the directives of Local Rule 56.1 and Fed.R.Civ.P. 56(c). The Plaintiffs' response to the Defendants Statement of Uncontested Facts ¶ 163 pages long. The Defendants listed 429 enumerated paragraphs, and the Plaintiff “responded” to each of those. Although the Plaintiffs disputed almost every one of the Defendants' 429 paragraphs, the Court was unable to find a single instance where the Plaintiffs cited to a particular piece of evidence in support of their denial. Most of the Plaintiffs' responses directed the Court to “[s]ee the plaintiff's testimonies and their filed complaints with the Court and the Equal Opportunity Employment Commission.” Some of the Plaintiffs' responses do not even contain that “citation” and blindly dispute the Defendants' assertions.

         While this Court could ostensibly conduct an exhaustive review of the record, it declines to do so here. Rule 56 does not require the Court “to perform an independent review of the record to find proof of a factual dispute.” Amnesty Am. v. Town of W. Hartford, 288 F.3d 467, 470 (2d Cir. 2002) (citations omitted); see also Giannullo v. City of New York, 322 F.3d 139, 145 (2d Cir. 2003) (stating that the purpose of Local Rule 56.1(d) “is to free district courts from the need to hunt through voluminous records without guidance from the parties”) (internal citations and alterations omitted). “Rather, the party opposing the summary judgment motion has the obligation to point to admissible evidence in the record in support of any claim that there is a disputed issue of material fact.” Arline v. Potter, 404 F.Supp.2d 521, 527 (S.D.N.Y. 2005). The Plaintiffs failed to point to disputed issues of fact in the Joint 56.1 Statement.

         The record consists of approximately 4, 000 pages. There are 24 Plaintiffs, each of whom “filed” something with the Court. There are depositions from 18 Plaintiffs, as well as several NYCB employees. There are affidavits from dozens of individuals. There are hundreds of pages of evaluations, disciplinary records, salary records, employment records, and other records. The Plaintiffs fail to cite to a single specific piece of evidence, or even to a particular plaintiff, to support their propositions. Their blanket directive to “see the [] testimonies and [] [] complaints” will be deemed an admission wherever the Defendants' statements are supported by admissible evidence. Even the Plaintiffs' list of additional facts in dispute are not supported by direct citations to admissible evidence. Here too, on every statement of additional facts in dispute, the Plaintiffs directed the Court to “[s]ee the plaintiffs' testimonies and their filed Complaints with the Court and the Equal Opportunity Employment Commission.” As the Defendants' 56.1 Statement does greatly rely on the Plaintiffs' depositions, the Court is able to “see the testimonies of the Plaintiffs.”

         Therefore, the Court will deem the Defendants' assertions as admitted by the Plaintiffs, because “where there are no citations or where the cited materials do not support the factual assertions in the Statements, the Court is free to disregard the assertion.” Holtz v. Rockefeller & Co., 258 F.3d 62, 73 (2d Cir. 2001) (internal alterations omitted) (collecting cases); see also Fiedler v. Incandela, No. 14CV2572SJFAYS, 2016 WL 7406442, at *6 (E.D.N.Y. Dec. 6, 2016) (“The court need not consider as true any fact that is not supported by admissible evidence.” (citing Whitehurst v. 230 Fifth, Inc., 998 F.Supp.2d 233, 260 (S.D.N.Y. 2014))); Suares v. Cityscape Tours, Inc., No. 11 CIV. 5650 AJN, 2014 WL 969661, at *2 (S.D.N.Y. Mar. 12, 2014), aff'd, 603 F.App'x 16 (2d Cir. 2015) (where the Plaintiff failed to provide any citations to the record, the Court deemed “[e]ach numbered paragraph in the statement of material facts set forth in [the] defendants 56.1 statement admitted for purposes of the motion”) (citing Local Rule 56.1) (original alterations omitted); Hoefer v. Bd. of Educ. of Enlarged City Sch. Dist. of Middletown, No. 10 CIV. 3244 ER, 2013 WL 126238, at *1 n.3 (S.D.N.Y. Jan. 9, 2013) (deeming all of the Defendants' assertions supported by evidence admitted where the Plaintiff failed to cite to admissible evidence); Costello v. N.Y. State Nurses Ass'n, 783 F.Supp.2d 656, 661 n.5 (S.D.N.Y. 2011) (disregarding the plaintiff's responses to a defendant's Rule 56.1 statement where the plaintiff failed to refer to evidence in the record); F.T.C. v. Med. Billers Network, Inc., 543 F.Supp.2d 283, 302 (S.D.N.Y. 2008) (disregarding assertions “not accompanied by citation to admissible evidence”); Arline v. Potter, 404 F.Supp.2d 521, 527 (S.D.N.Y. 2005) (deeming all of the defendant's assertions in its 56.1 statement admitted by the Plaintiff for failure to rely on admissible evidence).

         Accordingly, the following facts are drawn from the Defendants' 56.1 Statement and are deemed admitted where the Defendants' assertions are supported by evidence. See Baity v. Kralik, 51 F.Supp.3d 414, 421 (S.D.N.Y. 2014) (“the Court has only relied upon uncontroverted paragraphs of Defendants' Rule 56.1 Statement where the record evidence duly supports Defendants' contentions.”); Johnson v. IAC/Interactive Corp., 2 F.Supp.3d 504, 508 (S.D.N.Y. 2014) (stating that the Court was “mindful that [t]he local rule does not absolve the party seeking summary judgment of the burden of showing that it is entitled to judgment as a matter of law, and a Local Rule 56.1 statement is not itself a vehicle for making factual assertions that are otherwise unsupported in the record.” (internal citations and quotation marks omitted)); Berdugo v. City of New York, No. 03 Civ. 7319, 2004 WL 1900357, at *1 (S.D.N.Y. Aug. 23, 2004) (where plaintiff failed to follow requirements of Local Rule 56.1, deeming defendants' statements of facts admitted, but only to the extent that they were supported by the record).

         2. The Relevant Facts

         Accordingly, the following relevant facts are drawn from the Defendants' 56.1 Statement. For the reasons stated above, any statements made in the Defendants' 56.1 Statement that were supported by the cited evidence are deemed admitted by the Plaintiffs.

         NYCB is a savings bank chartered in New York State. NYCB has more than 250 bank branch locations, through which it conducts its retail business, and serves customers throughout the greater New York City metropolitan area, New Jersey, Florida, Ohio and Arizona. (Declaration of Cynthia Flynn [“Flynn Dec.”] at ¶ 2). When NYCB reduced its workforce on October 13, 2011, retail branch employees were divided into four classifications: Branch Manager (“BM”); Assistant Branch Manager (“ABM”); Branch Management Associate (“BMA”) and Financial Services Associate (“FSA”). (Id. at ¶ 3).

         NYCB utilized a “float pool” to cover certain geographic areas. That is, NYCB grouped branches by location, and placed certain employees in “float pools” to cover branch employees within that area if they were sick, on a leave of absence, or on vacation. (Id. at ¶ 4). The responsibilities of the employees in the float pool would vary depending on which employee they had to cover. (Id.). Before the RIF, each “float pool” had as many as 86 employees. (Flynn Dec. 15). None of the float pool employees occupied management positions. (Id.). The only employees in the float pool were FSAs. (Id. at ¶ 50).

         NYCB has written policies and procedures regarding Affirmative Action and Equal Employment Opportunity. (Mashburn Dec. at ¶¶ 2-4; Exhibits A, B).

         On October 13, 2011, NYCB reduced its workforce in its New York branches because fewer consumers use retail bank locations. (Flynn Dec. at ¶ 6-7). NYCB undertook an assessment of staffing levels using data from each branch location and studying their competitors' best practices. (Id. at ¶ 9).

         NYCB collected data from each branch. It analyzed each branch's transactions during the previous six months; the number of new accounts opened; whether individual tellers were meeting supposed industry benchmarks; and the customer base and local market of each branch. (Id.. at ¶ 9). Utilization of accepted industry benchmarks to determine modeling/Full Time Equivalent (“FTE”) allotment as follows: 2000 transactions/month per ‘teller' FTE; and 40 new accounts per “platform” FTE. NYCB also retained a consultant to observe its competitors. (Id. at ¶ 10). The consultant observed staffing and customer traffic at twenty-one other banks of varying sizes in four states. (Id. at ¶ 10).

         As a result of its analysis, NYCB believed that it was overstaffing its branch locations. According to its analysis, competitors were staffing 4.34 FTE in branches with less than $30 million in deposits and NYCB was staffing 4.67 FTE. Competitors' branches that held between $30 million and $100 million were staffing 4.75 FTE while NYCB was staffing 6.13 FTE. At the largest branches, which held over $100 million in deposits, competitors were staffing 5.74 FTE while NYCB staffed 9.14 FTE. (Flynn Dec. at ¶ 11).

         NYCB's strategy for reducing its workforce relied on creating clusters, seemingly very similar to the float pools that it already utilized. (Id. at ¶ 13). Branch locations that were close in proximity were placed in the same cluster, and employees would be required to commute to other branches within the cluster. (Id. at ¶ 14). Furthermore, NYCB compared employees' performance with other employees in their cluster, rather than merely with other employees in the same branch. (Id. at ¶ 14). The categories of employees required to float was expanded to include all job titles at the branch level. (Mashburn Dec. at ¶ 50). Some employees, including management-level employees, became cluster floaters. (Flynn Dec. at ¶ 15). NYCB believed that the advantages of clustering would be similar to those of the “float pool, ” in that absences would be easily covered. (Id. at ¶ 17). Furthermore, NYCB claims that it provided an opportunity for the bank to evaluate talent more efficiently. (Id. at ¶ 18).

         To determine who would be terminated or transferred, NYCB developed a “performance score” using employees' recent disciplinary history, scores received in recent performance evaluations, branch audits, and special skill sets such as securities licenses or fluency in another language. (Id. at ¶ 21; Mashburn Tr. at 11-19). Employees' scores were compared to other employees who had the same employment status and position. (Flynn Dec. at ¶ 23). In order to qualify for a transfer, an FSA had to have a performance score of at least 60, and ABMs and BMs had to score at least 70. (Smith Dec. at ¶ 8 Ex. G (Mashburn Tr. at 40-41)). NYBC terminated employees with the lowest scores and kept those with the highest scores. (Flynn Dec. at ¶ 24).

         Before the October 2011 RIF, NYCB employed 1, 766 individuals in New York and New Jersey. (Id. at ¶ 26). 332 of those employees were male (18.8%), and 1, 434 were female (81%). (Id. at ¶ 27). From the 1, 766 employees in the New York and New Jersey branches, NYCB terminated 320 employees. (Id. at ¶ 26). Of those 320, 42 were male (13%), and 278 were female (87%). (Id. at ¶ 27).

         Regional Retail Executives and Regional Retail Managers did not know about the RIF until October 10, 2013-which was three days before it went into effect. (Flynn Dec. at ¶ 28).

         Each of the Plaintiffs were employed at a branch location where less than one-third of the employees were terminated. (Mashburn Dec. at ¶ 54; Mashburn Ex. E).

         a. Maria Alexander

         Maria Alexander (“Alexander”) was hired by NYCB in July 1999. (Harrold Ex. B, Dep. of Alexander (“Alexander Tr.”) at 8). Alexander worked in various customer service roles during her tenure with NYCB in Bayonne, New Jersey. (Harrold Ex. B, Dep. of Alexander (“Alexander Tr.”) at 6, 9-10, 67)). Before she was terminated, she was an FSA, where her duties included opening accounts for new customers, cross-selling to customers, closing accounts and disbursing money. (Harrold Dec. at ¶ 3 Ex. B (Alexander Tr. at 10-11)).

         On February 3, 2009, Alexander received an employee disciplinary warning notice. She had failed to include the customer's zip code on a signature card and the date was incorrect. The notice was signed and issued by Rose Bates, and signed by Fahima Hamid and Susan Fernandez. Alexander testified in her deposition that she did make those mistakes, but minimized their severity. (Id. at 14-15).

         On April 23, 2009, Alexander received a disciplinary warning for using the wrong account number when opening an account. Alexander admitted in her deposition that she had made the mistake, and that it was a problem. (Id. at 19-20). She added that “there w[ere] a lot of things like that going on.” (Id. at 19-20). Amira Barsum, the supervisor manager, and Rose Bates, the branch manager, issued the warning. (Id. at 19-20).

         On March 4, 2010, Alexander received another disciplinary warning, for unprofessional and improper conduct. (Alexander Tr. at 26). Specifically, Alexander lost her temper and yelled at her supervisor manager Amira Barsum. (Id. at 27-28). Alexander further stated that she did not get along with Barsum. (Id. at 25).

         In April 2010, Alexander was transferred from NYCB's 46th Street branch to NYCB's 26thStreet branch. (Harrold Dec. at ¶ 3; Alexander Tr. 29-30, 33). Alexander did not object to the transfer because she believed that she was being treated unfairly by Barsum. (Alexander Tr. at 30). She received a performance evaluation two months later on July 8, 2010, where she was given a rating of 3.35 out of 5. (Harrold Ex. C at NYCB040874). This score indicated that she was meeting the requirements of the job. (Harrold Dec. at ¶ 3). Diana Lewis was one of the supervisors who evaluated Alexander. Before Lewis' evaluation, Alexander had “fairly positive feelings” about Lewis. But after Lewis started supervising her, Alexander started having problems with Lewis. (Alexander Tr. at 31-32, 35).

         On April 21, 2011, Alexander received a lateral performance evaluation in which she was given a score of 2.85 out of 3. (Harrold Ex. C at NYCB040872). This score indicated that she was meeting the requirements of the position.

         On July 12, 2011, Alexander received a rating of 2.85 out of 5 on her annual performance evaluation. (Harrold Ex. C at NYCB040876). This score indicated that she was meeting the requirements of the position.

         In July 2011, Lewis accused Alexander of forging her signature on a customer's debit card application. (Alexander Tr. at 46). Alexander said that she was first told that she would not be fired by someone in human resources, and that she would be transferred to whatever branch she wanted. (Id. at 51). Around the same time, she was told by Aubrey Zuckerman, a manager at the 26th Street branch, that she was terminated. (Id. at 55). Alexander testified in her deposition that she was fired because of forgery. (Id. at 63).

         When Alexander applied for unemployment benefits, NYCB told her to return to work, and she did. (Id. at 62-64). The discipline that she had received from Lewis was rescinded. (Id. at 64). She did not receive any other discipline. (Id.).

         Alexander did not believe that Zuckerman discriminated against her based on her gender, but believes that Lewis did. (Id. at 36, 40-41). Alexander's basis for this belief is that Lewis asked male employees to help Alexander with her work. (Id. at 40-41). Alexander further testified in her deposition that she does not have any facts to support the proposition that Robert Wann, Cynthia Flynn, John Fennell or Joseph Ficalora discriminated against women. (Id. at 109).

         Alexander believed that Rose Bates, Fay Hamid, and Susan Fernandez discriminated against her based on her gender. (Alexander Tr. at 15-18). She based that belief on the fact that she was not promoted during her tenure at NYCB while men were promoted and made more money than her. (Id. at 15-18). Specifically, she stated that she thought Partiv Dalal (“Dalal”) started at a higher salary and that Timothy Gosnell (“Gosnell”) was promoted over her. (Id. at 71). Dalal was hired as a teller in 2008 and resigned in July 2011. When he resigned, his salary was $25, 150. (Stratico Ex. V). Gosnell was hired as a personal banking representative in 2004, promoted to Assistant Head Teller in 2005, and promoted to Branch Management Associate in 2009. In October 2011, Gosnell's salary was $34, 200, which was lower than Alexander's salary of $37, 100. (Stratico Ex. X).

         Alexander learned of the reduction in force at a meeting at the 6th Street branch. (Alexander Tr. at 65). She, along with the other employees present at the meeting, were told that they were all terminated. (Id. at 65). She does not know who made the decisions about which employees would be terminated. (Alexander Tr. at 105).

         Before she was terminated, Alexander was one of 18 full-time FSAs in the Bayonne Cluster. (Masburn Dec. at ¶ 4). Alexander's annual salary was $37, 100, which was more than the 17 other full-time FSAs in her cluster. (Id. at ¶ 5). Her Performance Score of 30.50 was the lowest of those 18 employees. (Id.). Six of those 18 were laid off. Of the remaining 12, the lowest performance score was 64. The two males who were retained had performance scores of 83.5 and 100. (Id.).

         The Bayonne Cluster was part of Region 6. Region 6 had 47 full time FSAs-41 females and 6 males. Alexander's salary was the highest among the 47 full-time FSAs in Region 6. (Id. at ¶ 6). The highest-paid male made $28, 900. (Id.).

         b. Donna Berchiolli

         Donna Berchiolli (“Berchiolli”) was hired by Roosevelt Savings Bank as a part-time teller in 1992. She became a full-time associate and was promoted ultimately to branch manager associate. (Harrold Ex. D, Berchiolli Sept. 14, 2015 Dep. (“Berchiolli Tr.”) at 14-15). Roosevelt Savings Bank was ultimately acquired by NYCB. (Id. at 15-16). When Roosevelt Savings Bank was acquired, Berchiolli was a supervisor. (Id. at 16). Berchiolli worked at the Howard Beach branch and annex during her tenure with NYCB. (Id. at 17).

         On March 12, 2009, Berchiolli received a disciplinary warning for failing to follow NYCB procedure regarding “teller differences.” (Id. at 41). Berchiolli admitted in her deposition that there were teller differences. (Id.). The Court notes that teller differences appears to refer to when a teller's register has more or less money than the teller's accounting indicates it should. (Harrold Ex. E at NYCB041164). The warning says that there were five incidents of teller differences, and that the total of differences was $379.30. (Id. at NYCB041163).

         On March 31, 2009, she received a 3.35 out of 5 on her annual performance evaluation. (Harrold Ex. E at NYCB041214). The score indicated that she met the requirements of the position. The evaluation was prepared by Camille Ruggiero Lyons (“Lyons”) and Donna Cappello (“Cappello”). (Id.). Berchiolli testified that she did not believe that she received this score because she was female. (Berchiolli Dep. at 25).

         On April 9, 2010, Berchiolli received a 3.5 out of 5 on her annual performance evaluation, again indicating that she was meeting requirements. (Harrold Ex. E at NYCB041212). Lyons and Cappello prepared that evaluation. (Id.). Berchiolli testified that she did not believe that her gender affected her score. (Berchiolli Tr. at 33).

         On November 22, 2010, Berchiolli received another disciplinary warning for failing to follow NYCB procedure regarding “teller differences.” (Harrold Ex. E at NYCB041159-60). The warning notes that there were seven total incidents during the “rolling period” and that the total of differences was $129.91. (Id. at NYCB041160). The warning was prepared by Cappello and Lyons. (Id.). Berchiolli did not believe that they gave her the warning because of her gender. (Berchiolli Tr. at 38).

         On April 14, 2011, Berchiolli received 3.25 out of 5 on her annual performance evaluation. (Harrold Ex. E at NYCB041209). The evaluation was prepared by Cappello and Lyons. (Id.). Berchiolli did not believe that her gender affected her score. (Berchiolli Tr. at 43).

         Berchiolli testified that she does not know if Robert Wann or John Fennell were involved in the issuance of her disciplinary warnings, and said that she had no reason to believe that Sal Spano or Jo-Anne Camacho were involved in their issuance. (Berchiolli Tr. at 39-41). She further testified that she had no reason to believe that any of those individual had any input in her annual performance evaluations. (Id. at 45-46).

         Berchiolli does not know who Cynthia Flynn and Shannon Mashburn are. ((Id. at 40). She did not have any direct contact with her Regional Retail Executive, John Careddu, or his assistants; nor did she have much contact with NYCB Human Resources. (Id. at 47-48).

         On October 13, 2011, Berchiolli attended a meeting at the Lindenwood branch along with 40 other employees. (Id. at 55-56). All of the employees were informed that they were terminated. (Id.). She does not know who decided which employees would be terminated or what factors were used in making the determination. (Id. at 58). Berchiolli did not know to whom she was compared when NYCB decided to terminate her, but she believed that she was possibly compared to David Dim (“Dim”). (Id. at 58-60).

         Before she was terminated, there were nine BMAs in Berchiolli's cluster. There were eight females and one male, which was Dim. (Mashburn Dec. at ¶ 7). Dim had the highest Performance Score, 101.75, among BMAs in the cluster. (Id.). Berchiolli's score was 58.25, which was the second lowest among BMAs in the cluster. (Id.). Three females BMAs besides Berchiolli were terminated, and two of them had higher performance scores. (Id.).

         There were 37 total BMAs in Berchiolli's region-30 females and 7 males. (Id. at ¶ 8). Berchiolli's salary was in the middle of the group-she had the 18th highest salary. (Id.). Two males had higher salaries and five males had lower salaries. (Id.).

         Berchiolli testified that she believed that she was terminated based on her gender because Said Salah, a male, received disciplinary warnings but was not terminated; and the management team “was all let go.” (Berchioli Tr. at 60). However, Berchiolli admitted that Salah was transferred out of the Howard Beach branch before the RIF; that she had no personal knowledge about any warning Salah had received-only that she had heard that he received one for theft; and that David Dim and Jennifer LaScala remained on the management team after the RIF. (Id. at 60- 61, 71).

         c. Shannon Byrnes

         Shannon Byrnes (“Byrnes”) worked for NYCB from September of 2002 until October 2011. (Harrold Ex. F, September 14, 2015 Dep. of Shannon Byrnes (“Byrnes Tr.”) at 10). Specifically, she started as a part-time teller at the Clock Tower branch. She was promoted to several more senior positions, and was a BMA at the time of her termination. (Id.). In March 2010, she was transferred to the Howard Beach branch. (Id. at 31).

         On December 15, 2009, Byrnes received a 4 out of 5 on her annual performance evaluation, indicating that she was exceeding requirements. (Harrold Ex. G at NYCB041841). Byrnes testified that she believed that she deserved “far exceeds” requirements, but that she was told that the regional manager instructed managers not to give “5s.” (Byrnes Tr. at 22). Byrnes believed that her score could have been affected by her gender, and that “everybody that [she] had spoken with . . . were all women who” also felt that they deserved higher scores. (Id. at 27).

         On April 5, 2010, Byrnes received an employee disciplinary warning notice for teller differences. (Harrold Ex. G at NYCB041758). There were seven total incidents during the “rolling period, ” and the total of differences was $1, 115.89. (Harrold Ex. G at NYCB041759). Most of that money was lost during a transaction where Byrnes believed that she gave a customer $1000 more than he deserved. (Byrnes Tr. at 29). Byrnes testified that she believed that the warning was factually accurate, and that she did not contest the disciplinary warning. (Id. at 28-29). The branch manager, Stefan Malliet, issued the warning. (Id. at 29). Byrnes did not believe that he issued the warning to her because she is a woman. (Id.).

         On January 13, 2011, Byrnes received a 3.7 out of 5 on her annual performance evaluation, indicating that she was nearly exceeding requirements. (Harrold Ex. G at NYCB041831). The review was issued and signed by Lyons and Cappello. (Id.). Byrnes believed that she deserved higher ratings, but she admitted that she did experience a learning curve when she transferred from the Clock Tower branch to the Howard Beach branch because the latter was much busier. (Byrnes Tr. at 42-43).

         On May 9, 2011, Lyons and Regional Manager Marilyn Ramnarine (“Ramnarine”) completed a Corporate Advocacy performance evaluation in which they gave Byrnes a 25.1 out of 30. (Harrold Ex. G at NYCB041872).

         Byrnes did not have significant contact with Ramnarine or John Careddu, who were members of the Regional Management Team, and has no information that leads her to believe that they were the ones who decided to terminate her. (Byrnes Tr. at 52, 82). The only person with whom she spoke in Human Resources was Dan Cappiello, who handled benefits. (Id. at 53-54).

         Byrnes testified that she does not have any reason to believe that Robert Wann, John Fennell, Salvatore Spano or Shannon Mashburn had any input into her three performance evaluations in 2010 and 2011 or her disciplinary warning; and that she does not know Cynthia Flynn or Jo-Anne Camacho and has no reason to believe that they had any input on any of those documents. (Id. at 65-67).

         Byrnes said that she did not believe that Shannon Mashburn harbored any animosity towards her because of her gender; and she did not have any personal knowledge that gave her reason to believe that Robert Wann or John Fennell discriminated against employees based on gender. (Id. at 76, 78). She testified that she heard about a “911 call where they were told that they were overreacting females, ” and that lead her to believe that Wann discriminated against employees based on gender. (Id.).

         On October 13, 2011, Byrnes attended a meeting at the Lindenwood branch where she and approximately 40 other employees were told that they were terminated. (Id. at 67-69). She testified that she does not know what factors were used to determine how to reduce the workforce other than NYCB's response to her EEOC complaint; or with whom she was compared in determining that she would be terminated. (Id. at 72-75). Byrnes admitted that she did not hold any licenses at the time of her termination and never indicated to NYCB that she spoke any languages besides English. (Id. at 80).

         Before her termination, Byrnes was one of 9 BMAs in her cluster. (Mashburn Dec. at ¶ 9). There were 8 females and one male, Dim. (Id.). Dim had the highest performance score of the BMAs in the cluster. (Id.). Byrnes' score of 75 was the fourth lowest of the 9 BMAs. Four female BMAs, including Byrnes, were terminated. (Id.). Byrnes was one of 37 BMAs in her region. There were 30 females and 7 males. Byrnes' salary was the 9th highest of BMAs in her region, and exceeded the salaries of all of the males in her region. (Mashburn Dec. at ¶ 10).

         Byrnes testified that she thought that Said Salah (“Salah”) should have been terminated instead of her because “[h]e had so many problems with numerous branches . . . [, ] had a warning [] for basically falsifying documents . . . [, ] [and] has . . . lower ratings.” (Byrnes Tr. at 79). Byrnes admitted that she never worked with Salah and had no personal knowledge about him. (Id. at 74-75).

         In September 2008, and February 2009, Salah received a rating of “exceeding expectations” from Lyons and Cappello. (Harrold Ex. H, Sept. 9, 2015 Dep. of Donna Cappello (“Cappello Tr.”) at 197, 200-01). The Court notes that although NYCB claims that Salah received 24.7 out of 30 and 4 out of 5 on those respective evaluations, the evidence to which NYCB cites does not support those propositions. The Court could not find Salah's evaluations or testimony regarding his scores.

         Byrnes and Salah were both promoted to Assistant Branch Supervisor in January 2007. During the period in which they both held that position, Byrnes made more money than Salah. (Stratico Ex. D; Stratico Ex. DD). Byrnes and Salah both received corporate title promotions on July 1, 2008 when they became management trainees. In February 2009, they were both promoted to BMA. During the period in which they both held that title, Byrnes made more money than Salah. (Stratico Ex. D; Stratico Ex. DD). When Salah was promoted to a position higher than Byrnes' position, his salary was still less than hers. In October 2011, Salah's salary was $39, 850, which was less than Byrnes' salary of $40, 300. (Stratico Ex. D; Stratico Ex. DD).

         Byrnes believed that she was paid less than two males-Dim and Mohammed Amin (“Amin”). (Byrnes Tr. at 54-55). She believed this based on “talk” within the branch. (Id. at 54- 56).

         When she was terminated, Byrnes' salary was $40, 300. (Stratico Ex. D). At the same time, Dim's salary was $39, 750. (Stratico Ex. W). During the periods when Byrnes and Dim held the same position, Byrnes' salary was higher than Dim's. (Stratico Ex. D; Stratico Ex. W).

         In 2008, Byrnes' salary increased from $32, 600 to $33, 800; and Amin's salary increased from $29, 000 to $33, 000. (Stratico Ex. D; Stratico Ex. S). In 2009, Byrnes' salary was $35, 500; and Amin's salary was $34, 200. (Id.) During those years, Byrnes and Amin occupied the same position. (Id.) In October 2011, Byrnes, who was a BMA, had an annual salary of $40, 300; and Amin, who had been an ABM for 21 months, had an annual salary of $41, 900. (Id.)

         Byrnes also felt that she was passed over for a promotion at the Clock Tower branch. Specifically, there was an ABM opening at some point in 2009. (Byrnes Tr. at 34-36). She told the branch manager that she was interested. (Id.) She does not know who else applied, but Amin was given the position in February 2009. (Id.) Byrnes does not know why he was chosen or who chose him. (Id.) She did not complain about the selection to anyone. (Id.)

         d. Donna Cappello

         Donna Cappello (“Cappello”) began working for the Roosevelt Savings Bank as a part-time teller at its Howard Beach branch in June 1977. (Harrold Ex. H, Sept. 9, 2015 Dep. of Donna Cappello (“Cappello Tr.”) at 10-11). Roosevelt Savings Bank merged with Roslyn Savings Bank in 1999, and NYCB acquired Roslyn Savings Bank in 2003. (Cappello Tr. at 11). Cappello held various positions during her tenure with the banks, and she became an ABM in early 2005. (Id. at 9-10). Throughout her employment with NYCB and its corporate predecessors, Cappello worked at the Howard Beach branch. (Id. at 11-12).

         On May 18, 2009, Cappello received a 27.7 out of 30 on her annual corporate performance evaluation. (Harrold Ex. I (documents in exhibit do not have Bates numbers). The evaluation was prepared and signed by Lyons and Careddu. (Id.).

         In late fall of 2009, Careddu told Cappello that “ratings cannot be as high as they were in the past. No one should be receiving [] the top rating . . . .” (Cappello Tr. at 170).

         On April 7, 2010, Cappello was issued a disciplinary warning for negligence in relation to an employee's theft of $8, 000. (Harrold Ex. I). Cappello believed that the warning was unjust because she had no personal responsibility. (Cappello Tr. at 129, 133-34). Nevertheless, Cappello admitted that she realized that management has a responsibility to tend to the branch. (Id. at 134). Other members of the Howard Beach branch management team also received disciplinary warnings, including Lyons, ABM Enille D'Amato (“D'Amato”), Salah, and BMA Addolorata Quiles (“Quiles”). (Id. at 129, 131-33). Cappello testified in her deposition that she believed that D'Amato, Salah, and Quiles were more culpable than the other members of management who received warnings because they had signed off on the cash counts and the monthly audits during the period of time in which the money was stolen. (Id. at 132-33). She agreed that the theft of money was a negative event for NYCB. (Id. at 147-48).

         At some point in time, Cappello called 911. The date of the call and the reasons for the call are unclear because those portions of Cappello's transcript were not provided. Nevertheless, Cappello stated that she had reasonable cause to make the 911 call and that people “above” her in the organization agreed with the call; but that the “folks” did not commit a crime, threatened a lawsuit and asked for a lot of money. (Id. at 147). Cappello testified that this was also a negative event. (Id.).

         On April 12, 2010, Lyons told Cappello that they were being transferred out of the Howard Beach branch. (Id. at 158). Two or three days later, Lyons told Cappello that all members of the Howard Beach branch management team were being transferred. (Id. at 160). Later that week, Cappello learned that the entire Howard Beach branch was being transferred instead. (Id. at 161). That Friday, Lyons was told to wait to complete the transfers until Monday. (Id. at 162). Then on Monday, April 19, 2010, Lyons and Cappello received a phone call informing them that all of the transfers were cancelled. (Id.).

         On June 28, 2010, Cappello received 25.05 out of 30 on her annual corporate evaluation form, indicating that she was exceeding expectations. (Harrold Ex. I). Lyons and Ramnarine prepared and signed the form. (Id.).

         In May 2011, Lyons nominated Cappello to be elevated from assistant vice president to second vice president. (Cappello Tr. at 59; Harrold Ex. I). Cappello did not receive the corporate promotion. (Cappello Tr. at 60). She believed that in order to become a second vice president, one had to first be a branch manager. (Id.).

         On May 11, 2011, Cappello received a 25.5 out of 30 on her annual corporate performance evaluation, indicating that she was exceeding expectations. (Harrold Ex. I). The evaluation was prepared and signed by Lyons and Ramnarine. (Id.).

         Cappello testified that she believed that her 2010 and 2011 evaluations were not fairly representative of her work because they were downgraded based on the corporate directive to do so. (Cappello Tr. at 183-84). She said that she did not know if anyone besides Lyons, Careddu or Ramnarine was involved in assigning her performance evaluation scores. (Id. at 184-85).

         Cappello testified that she does not know Cynthia Flynn, Shannon Mashburn or Zhongcai Zhang; and does not personally know Jo-Anne Camacho. (Cappello Tr. at 23-24; 242-43).

         Cappello did not feel that there was any friction or ill will between her and Human Resources; and did not feel that Alexandra O'Brien or Irene Eger treated her differently based on her gender.. (Id. at 27-28). She had a good relationship with the regional management team of Careddu, Ramnarine and Andrea Gonzalez during her last few years ...


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