United States District Court, E.D. New York
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
D. SPATT United States District Judge.
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”).
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.
Relevant Procedural Background
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.
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.
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.
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.
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
As to the Defendants' 56.1 Statement and the
Plaintiff's Purported 56.1 Statement
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 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).
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.
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.
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.”
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).
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).
The Relevant Facts
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.
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
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).
has written policies and procedures regarding Affirmative
Action and Equal Employment Opportunity. (Mashburn Dec. at
¶¶ 2-4; Exhibits A, B).
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).
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).
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).
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).
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
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
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).
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).
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)).
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).
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).
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).
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).
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.
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
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).
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.).
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).
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).
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).
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.).
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,
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).
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
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).
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).
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).
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).
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
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).
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).
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.).
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.).
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).
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).
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).
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.).
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).
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).
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).
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).
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.).
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
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).
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).
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.
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).
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).
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).
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.)
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.
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).
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.).
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
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).
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.
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.).
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.).
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.).
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.).
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).
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).
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 ...