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Philippe v. Santander Bank, N.A.

United States District Court, E.D. New York

March 31, 2018

HERROL JEAN PHILIPPE, Plaintiff,
v.
SANTANDER BANK, N.A., Defendant.

          MEMORANDUM & ORDER

          MARGO K. BRODIE, United States District Judge

         Plaintiff Herrol Jean Philippe commenced the above-captioned action against Defendant Santander Bank, N.A. on May 20, 2015, alleging retaliation in violation of the Family Medical Leave Act, 29 USC § 2601 et seq. (“FMLA”), and disability discrimination under the New York State Human Rights Law, N.Y. Exec. Law § 290 et seq. (“NYSHRL”) and the New York City Human Rights Law, N.Y.C. Admin. Code § 8-101, et seq. (“NYCHRL”), based on the termination of his employment. (Compl., Docket Entry No. 1.) On July 7, 2015, Plaintiff amended his Complaint to add a claim of disability discrimination under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000(e) et seq. (“Title VII”). (Am. Compl., Docket Entry No. 7.) Defendant moved for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure on May 26, 2017. (Def. Mot. for Summ. J. (“Def. Mot.”), Docket Entry No. 29; Def. Mem. in Supp. of Def. Mot. (“Def. Mem.”), Docket Entry No. 29-1.) By order dated October 6, 2017, the Court referred Defendant's motion to Magistrate Judge Cheryl L. Pollak for a report and recommendation. (Order dated Oct. 6, 2017.)

         By report and recommendation dated February 28, 2018, Judge Pollak recommended that the Court deny Defendant's motion for summary judgment (“R&R”). (See generally R&R, Docket Entry No. 35.) Defendant filed objections to the R&R on March 13, 2018. (Def. Obj. to R&R (“Def. Obj.”), Docket Entry No. 36.) Plaintiff filed a response to Defendant's objections, requesting that the Court adopt the R&R it its entirety. (Pl. Opp'n to Def. Obj., Docket Entry No. 38.) For the reasons set forth below, the Court denies Defendant's motion for summary judgment as to Plaintiff's FMLA, NYSHRL, and NYCHRL claims, dismisses Plaintiff's Title VII disability claim, and grants Plaintiff leave to amend his Amended Complaint to include a claim under the Americans with Disabilities Act of 1990, 42 U.S.C. § 12101 et seq. (the “ADA”).

         I. Background

         The Court assumes familiarity with the underlying facts as detailed in the R&R and provides only a summary of the pertinent facts and procedural background. The following facts are undisputed unless otherwise noted.

         a. Factual background

         Plaintiff began his employment with the Bank on July 30, 2012 as the branch manager of the 31st Avenue branch in the Bank's Queens/Long Island District, which district consisted of nineteen branches. (Def. Statement of Material Facts Pursuant to Local R. (“Def. 56.1”) ¶ 1, Docket Entry No. 29-2; Pl. Statement of Material Facts Pursuant to Local R. (“Pl. 56.1”) ¶ 1, Docket Entry 32-1.) At the start of his employment, Plaintiff reported to the District Executive, Benedetta LeoGrande, who reported to the Regional President, Josephine Moran. (Def. 56.1 ¶ 2; Pl. 56.1 ¶ 2.) In May of 2013, Michael Billia replaced LeoGrande as Plaintiff's supervisor. (Def. 56.1 ¶ 3; Pl. 56.1 ¶ 3.)

         As a branch manager, Plaintiff was responsible for, inter alia, “managing the operations and employees of his branch, and ensuring the branch achieved its sales goals, ” (Def. 56.1 ¶ 4; Pl. 56.1 ¶ 4). In particular, “[b]ranch managers were responsible for achieving certain sales and performance benchmarks.” (Def. 56.1 ¶ 10; Pl. 56.1 ¶ 10.) To track performance, Defendant employs various metrics including “WAP” (Weighted Average Performance), an accumulation of several different sales categories. (Def. 56.1 ¶ 11; Pl. 56.1 ¶ 11.) Billia set the WAP “target” at 100% for each branch in the district. (Def. 56.1 ¶ 12; Pl. 56.1 ¶ 12.) Throughout the time he was employed by Defendant, Plaintiff's WAP figures were low in comparison with that of other branches and managers. (See Queens/Long Island WAP Numbers, attached to Def. Mot. as Ex. J, Docket Entry No. 29-3.) Other managerial duties included the approval of electronic time submissions (“eTime”) by subordinates on a bi-weekly basis. (Def. 56.1 ¶¶ 8-9; Pl. 56.1 ¶¶ 8- 9.) Beginning in March of 2014, branch managers were also encouraged to participate in the Santander Spirit award program (“Santander Spirit”), “an incentive program through which [Defendant] encouraged managers to award recognition to their subordinates in the form of points that could be redeemed for gifts from the Bank.” (Def. 56.1 ¶¶ 6-7, 107-08.)

         Defendant contends that in October of 2012, “LeoGrande placed Plaintiff on a development plan, which listed deficiencies in time management and operations systems.” (Def. 56.1 ¶ 22.) Plaintiff concedes that he was given a “development plan, ” which included entries in a section titled “Development Needed.” (Pl. 56.1 ¶ 22.)

         Months later, in February of 2013, Defendant gave Plaintiff a rating of “Expectations Totally Met” for his first performance review. (Pl. Feb. 1, 2013 Branch Manager Performance Review, annexed to Certification in Supp. of Def. Mot. as Exhibit I.)[1] Despite this rating, LeoGrande also provided negative feedback in the performance review stating:

[Plaintiff] has struggled with production since he was assigned to the 31st Avenue branch. As a newly hired Branch Manager in 2012, I expected that he would require a period of acclimation, however I believe the results should be better than they are after three quarters. Failure to meet goals at a branch as large as 31st Avenue greatly impacts the results of the entire Queens/Long Island district in a negative way.

(Def. 56.1 ¶ 28; Pl. 56.1 ¶ 28 (quoting Plaintiff's Feb. 1, 2013 Branch Manager Performance Review).) Defendant also gave Plaintiff a numeric rating of 2.52 out of 5.00. (Def. 56.1 ¶ 25; Pl. 56.1 ¶ 25.) Plaintiff contends that “at the time of this review, he discussed with . . . LeoGrande his concerns about the staffing levels at the branch, ” explaining that the branch was supposed to have five employees working rather than the two it often had. (Pl. 56.1 ¶ 31.) Plaintiff concedes, however, that understaffing had been a common area of concern among other branch managers. (Def. 56.1 ¶ 33; Pl. 56.1 ¶ 33.)

         In July of 2013, Billia placed Plaintiff on a performance improvement plan (“PIP”), which listed the following areas in which improvement was required:

Improvement needed in overall leadership of the team, including the management, coaching and inspection process. Must increase the level of focus and clarity around expected sales behaviors and hold his team more accountable for activities and results.
Needs to continue to be involved in the day to day operations to ensure the branch is maintaining a high level of operational integrity.
Needs to give guidance and provide solutions regarding overcoming branch and market obstacles.
Meet targets in Solutions, profit pool, credit cards, RAF and referrals. Obtain a Weighted Average Performance of 90% and meet targets in all key priorities.

(Def. 56.1 ¶¶ 37-38; Pl. 56.1 ¶¶ 37-38 (quoting July of 2013 PIP, annexed to Certification in Supp. of Def. Mot. as Exhibit K).) As with his first performance review, Plaintiff “claimed that the July 2013 PIP was unfair because it arose from the circumstances of the branch being understaffed, ” (Def. 56.1 ¶ 42; Pl. 56.1 ¶ 42), and “refused to sign the July 2013 PIP, ” (Def. 56.1 ¶ 41; Pl. 56.1 ¶ 41).

         i. Plaintiff's transfer to Union Turnpike branch

         On August 5, 2013, Billia transferred Plaintiff to the Union Turnpike branch in Flushing, Queens. (Def. 56.1 ¶ 44; Pl. 56.1 ¶ 44.) Defendant contends that the Union Turnpike branch was smaller and less busy than the 31st Avenue branch, and that Billia transferred Plaintiff there in order to help him succeed. (Def. 56.1 ¶ 44.) Plaintiff disputes that the Union Turnpike was less busy and states that there is no evidentiary support for the assertion that the transfer was to help him succeed. (Pl. 56.1 ¶ 44.)

         Billia issued Plaintiff another PIP on November 6, 2013 identifying “the same areas of improvement required and action steps as the July 2013 PIP.” (Def. 56.1 ¶¶ 48-49; Pl. 56.1 ¶¶ 48-49.) Plaintiff contends that Billia “simply cut and pasted the July 2013 performance improvement plan” to create the November 6, 2013 PIP. (Pl. 56.1 ¶ 49.) “Following the issuance of the November 6, 2013 PIP, Billia had weekly conversations with [Plaintiff] concerning his progress, including the branch's sales No. and his leadership of the branch.” (Def. 56.1 ¶ 51; Pl. 56.1 ¶ 51.)

         In February of 2014, Billia gave Plaintiff a “requires improvement” rating and an overall annual performance rating of 1.66 out of 5.00, (Def. 56.1 ¶ 53; Pl. 56.1 ¶ 53), raising the following issues:

(1) underperformance of the branches [Plaintiff] oversaw based on the WAP and other metrics; (2) failure to hold his team members accountable; (3) failure to use incentives to drive the sales process and motivate his staff; (4) failure to be assertive in management; (5) lack of knowledge of operational and policy issues; (6) issues with time management; and (7) inability to handle HR issues with team members.

(Def. 56.1 ¶ 54; Pl. 56.1 ¶ 54 (citing Pl. Feb. 5, 2014 Branch Manager Performance Review, annexed to Certification in Supp. of Def. Mot. as Exhibit N).) “Prior to the February 2014 performance evaluation, Billia spoke with [Plaintiff] concerning several of the deficiencies listed in the evaluation, such as his leadership, holding his staff accountable, and staying informed on performance and policy plans.” (Def. 56.1 ¶ 59; Pl. 56.1 ¶ 59.)

         In April of 2014, Billia issued Plaintiff a warning for “overall unsatisfactory sales performance and leadership based on his failure to execute on the expected sales behaviors set forth in the PIPs, noting his performance was ‘well below expectations.'” (Def. 56.1 ¶ 66; Pl. 56.1 ¶ 66.) The warning specified that Plaintiff was not on pace for nine of the ten key goal areas contained in the PIP, reiterated many of the same issues raised in the PIPs and in the February 2014 performance review, (Def. 56.1 ¶ 67; Pl. 56.1 ¶ 67), and warned Plaintiff that “failure to demonstrate satisfactory and sustained improvement in the areas described” or “any other performance issues” “may lead to further disciplinary action, up to and including termination of employment at any time.” (Def. 56.1 ¶ 68; Pl. 56.1 ¶ 68 (quoting April 2014 Verbal Warning, annexed to Certification in Supp. of Def. Mot. as Exhibit P).)

         ii. Plaintiff's FMLA leave

         On June 12, 2014, Plaintiff was involved in a car accident. (Def. 56.1 ¶¶ 76-77; Pl. 56.1 ¶¶ 76-77.) Plaintiff sustained injuries and obtained workers' compensation benefits. (Def. 56.1 ¶¶ 76-77; Pl. 56.1 ¶¶ 76-77.) Defendant granted Plaintiff FMLA leave starting on June 13, 2014. (Def. 56.1 ¶ 78; Pl. 56.1 ¶ 78.) During Plaintiff's leave, Tracy Ragoonanan and Vinny Marino, other branch managers, filled in for Plaintiff at the Union Turnpike branch. (Def. 56.1 ¶ 82; Pl. 56.1 ¶ 82.)

         According to Plaintiff, Billia attempted to demote or replace him while he was on leave. Vince Statile, a member of Defendant's Employee Relations department testified that he and Billia “discussed moving Plaintiff to the float pool on a permanent basis while Plaintiff was on FMLA leave.” (Pl. 56.1 ¶ 84.) Regional President Moran also testified that he discussed with Billia the possibility of transferring Plaintiff to a floating manager position after his return from FMLA leave. (Pl. 56.1 ¶ 81.) Plaintiff also contends that Billia “discussed that option with Defendant's Employee Relations department, but Employee Relations told . . . Billia that the Bank had to hold Plaintiff's spot as branch manager for the Union Turnpike branch until he returned from FMLA leave.” (Pl. 56.1 ¶ 84.)

         Two other bank employees also testified to comments made by Billia about Plaintiff before and during Plaintiff's FMLA leave. Rena Begum, floating branch manager, and branch employee Salina Moora testified that prior to Plaintiff's FMLA leave, Billia made negative comments about Plaintiff, including that the Union Turnpike branch was underperforming, that Plaintiff was “a joke” and failed to hold his employees accountable, and that Billia did not like Plaintiff and was trying to “get rid” of him. (Def. 56.1 ¶ 88.) While Plaintiff was on FMLA leave, Billia also made comments about Plaintiff being a “waste, ” wanting to terminate his employment, and wanting to replace him with Begum. (Def. 56.1 ¶¶ 83, 85; Pl. 56.1 ¶¶ 83, 85.) In addition, during a telephone conversation while Plaintiff was on FMLA leave, Billia told Moora that he felt that Plaintiff was “making it up” and “just taking time off.” (Pl. 56.1 ¶ 167.) Billia denied making negative comments about Plaintiff or his leave while Plaintiff was out on leave. (Def. 56.1 ¶ 87; Pl. 56.1 ¶ 87; Billia Dep. Tr., 57:10-61:8, annexed to Certification in Supp. of Def. Mot. as Exhibit C.)

         iii. Plaintiff's return to work and his termination

         Plaintiff returned to work from FMLA leave on July 30, 2014, resuming his position as branch manager of the Union Turnpike branch. (Def. 56.1 ¶ 90; Pl. 56.1 ¶ 90.) Defendant approved Plaintiff's request for intermittent leave to accommodate his need to attend doctor's visits and physical therapy. (Def. 56.1 ¶ 91; Pl. 56.1 ¶ 91.)

         In September and October of 2014, Billia determined that Plaintiff could not handle the disruptive behavior of branch employee Meir Peer, who was acting in a disrespectful manner toward Plaintiff and Moora. (Def. 56.1 ¶ 94; Pl. 56.1 ¶ 94.) Plaintiff disputes that he was unable to handle the situation. (Pl. 56.1 ¶ 94.) During one incident, “Peer reacted in a threatening way toward Moora in front of customers - slamming doors, pacing back and forth, cursing and yelling.” (Def. 56.1 ¶ 95; Pl. 56.1 ¶ 95.) Moora and Peer had another altercation, which resulted in Peer's transfer from Plaintiff's branch. (Def. 56.1 ¶¶ 99-100; Pl. 56.1 ¶¶ 99-100.)

         The Bank also determined in October of 2014 that Plaintiff failed to approve the eTime for his subordinates for all of 2014. According to Defendant, Peer complained to Employee Relations concerning approval of his paid time-off. (Def. 56.1 ¶ 102.) “In response to Peer's complaint to Employee Relations, Employee Relations reviewed Peer's eTime submissions and discovered that [Plaintiff] had not been approving them.” (Def. 56.1 ¶ 103.) “On October 23, 2014, Employee Relations reviewed all of [Plaintiff's] subordinates' time cards and found that he had failed to approve any of his subordinates' eTime for the entirety of 2014.” (Def. 56.1 ¶ 104.) Plaintiff does not dispute that he failed to approve his subordinates' eTime at any point in 2014. (Def. 56.1 ¶ 104; Pl. 56.1 ¶ 104.)

         On October 27, 2014, Billia sent Plaintiff an email about activating his account to participate in Santander Spirit. (Def. 56.1 ¶¶ 108-09; Pl. 56.1 ¶¶ 108-09.) Despite the encouragement to managers to participate, Plaintiff had not activated his account. (Def. 56.1 ¶¶ 107-08.) After receiving the email from Billia, Plaintiff was able to successfully sign into his Santander Spirit account and send employees Santander Spirit recognitions. (Pl. 56.1 ¶ 109.) Plaintiff had previously experienced “difficulty signing into his Santander Spirit account and tried to reset the password . . . on multiple occasions.” (Pl. 56.1 ¶ 109.)

         After being made aware of the issues with eTime and Santander Spirit, Billia recommended that Plaintiff be terminated. (Billia Dep. 34:20-36:18.) Defendant terminated Plaintiff's employment on October 29, 2014. (Def. 56.1 ¶ 112.) During the termination meeting, Billia explained to Plaintiff that he was being terminated for subpar performance, including poor leadership skills exhibited throughout his employment, and as documented by a “climate study.” (Def. 56.1 ¶ 117). Billia also referred to Plaintiff's history of poor sales, referencing his low WAP data, including from the quarters during which he was on FMLA leave. (Pl. 56.1 ¶ 137; Termination Mtg. Tr., annexed to Pl. Mot. as Ex. 6, Docket Entry No. 32-2.)

         Defendant now contends that it terminated Plaintiff because of:

(1) his failure to handle employee issues, as exemplified by his ineffective handling of situations involving Saira Khan and Meir Peer; (2) his failure to approve eTime for the entire year of 2014; (3) his failure to participate in [Santander Spirit]; (4) his operational and leadership shortcomings; and (5) his poor and inconsistent sales numbers.

(Def. 56.1 ¶ 112.)

         Plaintiff disagrees with Defendant's reasons for his termination and contends that he was terminated in retaliation for exercising his rights under the FMLA. (Pl. 56.1 ¶ 112.) Plaintiff also contends that Defendant's reasons for termination have shifted over time. In contrast to the currently asserted reasons for termination, Plaintiff asserts that Billia specified the following four reasons at the termination meeting: (1) “failure to approve eTime for his subordinates;” (2) “failure to assign Santander Spirit rewards;” (3) “the results of an ‘HR climate survey' that Mr. Billia had conducted at the branch and showed that Plaintiff failed to show ‘leadership;'” and (4) “the branch's overall performance numbers as measured by WAP.” (Pl. 56.1 ¶ 112.)

         In addition to arguing that the rationales for termination have shifted, Plaintiff contends that the proffered reasons have no basis in fact. Plaintiff, for example, asserts that although several other branch managers failed to approve their subordinates' eTime, Defendant did not discipline those managers. (Pl. 56.1 ¶¶ 142-55.) Plaintiff similarly argues that other managers did not fully participate in Santander Spirit. Defendant concedes that other supervisors failed to approve eTime for various periods and Defendant did not impose any discipline on those managers. Defendant, however, contends that it was unaware of other managers' eTime issues when they made the decision to terminate Plaintiff. (Def. 56.1 Reply ¶¶ 142-55, Docket Entry No. 30.) In addition, Defendant asserts that Plaintiff was the only active manager who had not given out any Santander Spirit rewards, or activated his account. (Def. 56.1 ¶¶ 107-08.)

         b. Judge ...


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