Aiossa v. Bank of America, N.A., et al, No. 2:2010cv01275 - Document 73 (E.D.N.Y. 2012)
Court Description: MEMORANDUM AND ORDER granting 58 Motion for Summary Judgment. For the foregoing reasons, Defendants' summary judgment motion is GRANTED. The Clerk of the Court is respectfully directed to mark this case CLOSED. So Ordered by Judge Joanna Seybert on 9/21/2012. C/ECF (Valle, Christine)
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Aiossa v. Bank of America, N.A., et al Doc. 73 FILED CLERK 9/21/2012 4:14 pm U.S. DISTRICT COURT EASTERN DISTRICT OF NEW YORK LONG ISLAND OFFICE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------X PROVIDENCE AIOSSA, Plaintiff, -against- MEMORANDUM & ORDER 10-CV-1275(JS)(ETB) BANK OF AMERICA, N.A., JOHN FRAZZA, and SUE COLE, Defendants. ---------------------------------------X APPEARANCES For Plaintiff: Tracey Lyn Brown, Esq. Derek Sells, Esq. The Cochran Firm 233 Broadway, 5th Floor New York, NY 10279 For Defendants: Caroline F. Turcotte, Esq. Siobhan M Sweeney, Esq. Edwards Wildman Palmer LLP 111 Huntington Avenue Boston, MA 02199 Deborah Michelle Zawadzki, Esq. Jonathan B. Bruno, Esq. Kaufman, Borgeest & Ryan LLP 120 Broadway, 14th Floor New York, NY 10271 SEYBERT, District Judge: Plaintiff Providence Aiossa sued Defendants Bank of America, N.A. (“BoA”), John Frazza, and Sue Cole (collectively, “Defendants”) for employment breach of contract. motion for summary discrimination, retaliation, and Pending before the Court is Defendants’ judgment (Docket Entry 58). For the following reasons, this motion is GRANTED. Dockets.Justia.com BACKGROUND The Court will describe any relevant factual disputes in the discussion section below. First, though, it provides some brief background on this case. According to Plaintiff, she was one of BoA’s top-producing mortgage loan officers in the Long Island area. In January 2007, Plaintiff complained to Defendant Cole that Cole’s treatment of Plaintiff’s boss, Keith Cook, was after, racially Plaintiff discriminatory was effectively (Cook a series of black). transferred Island market to the Manhattan market. began is from Shortly the Long And, in July 2007, BoA investigations into Plaintiff’s loan-origination practices. the propriety of Although all of these investigations ended without a finding of misconduct, Plaintiff was fired in 2008. DISCUSSION Plaintiff asserts discrimination, retaliation, and aiding and abetting claims under both the New York State Human Rights Law (“NYSHRL”) and the New York City Human Rights Law (“NYCHRL”). out of She also asserts a breach of contract claim arising Defendants’ alleged failure to pay her all of the compensation to which she was entitled. I. Legal Standard Summary judgment is only appropriate where the moving party can demonstrate that there is “no genuine dispute as to 2 any material fact” and that the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). In considering this question, the Court considers “the pleadings, depositions, answers to interrogatories and admissions on file, together with any other firsthand information including but not limited to affidavits.” Nnebe v. Daus, 644 F.3d 147, 156 (2d Cir. 2011); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997); FED. R. CIV. P. 56(c). “In assessing the record to determine whether there is a genuine issue to be tried . . . the court is required to resolve all ambiguities and draw all permissible factual inferences in favor of the party against whom summary judgment is sought.” McLee, 109 F.3d at 134. The burden of proving that there is no genuine issue of material fact rests with the moving party. Gallo v. Prudential Residential Servs., L.P., 22 F.3d 1219, 1223 (2d Cir. 1994) (citing Heyman v. Commerce & Indus. Ins. Co., 524 F.2d 1317, 1320 (2d Cir. 1975)). non-moving LaBounty v. party must Coughlin, “come 137 Once that burden is met, the forward F.3d 68, with 73 (2d specific Cir. facts,” 1998), to demonstrate that “the evidence is such that a reasonable jury could return a verdict for the nonmoving party,” Anderson v. Liberty Lobby, 477 U.S. 242, 248, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202 (1986). “Mere conclusory allegations or denials will 3 not suffice.” 1986). Williams v. Smith, 781 F.2d 319, 323 (2d Cir. And “unsupported allegations do not create a material issue of fact.” Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir. 2000). II. Analysis The Court considers Plaintiff’s age discrimination, retaliation, aiding and abetting, and contract claims in order. A. Age Discrimination Defendants Plaintiff’s claims age under familiar are entitled discrimination the NYSHRL McDonnell and Douglas to summary claims. NYCHRL Age are judgment discrimination analyzed burden-shifting on using framework. the E.g., Colon v. Trump Int’l Hotel & Tower, No. 10-CV-4794, 2011 WL 6092299, at *4 (E.D.N.Y. Dec. 7, 2011). At the first step, Plaintiff has the burden of establishing a prima facie case of discrimination by showing that “(1) she was within the protected age group; suffered an (2) she adverse was qualified employment for her action; position; and (4) the (3) she adverse employment action occurred under circumstances giving rise to an inference of discrimination.” Id. (citing Gorzynski v. Jetblue Airways Corp., 596 F.3d 93, 107 (2d Cir. 2010)). If Plaintiff satisfies her prima facie burden, then the burden shifts to Defendants “to articulate a legitimate, nondiscriminatory reason for the adverse employment action.” 4 Id. If they do so, the Plaintiff can nevertheless proceed to trial if she has evidence that Defendants’ stated reasons for their actions were pretextual and that Plaintiff’s age was the true reason for their decision.1 Id. Here, Plaintiff has failed to establish a prima facie case of age discrimination because she hasn’t shown that the relevant adverse employment actions occurred under circumstances giving rise to an inference of discrimination.2 transferred in January 2007 and fired in 2008. Plaintiff was Additionally, in her view, she was subjected to a series of sham investigations beginning in July 2007. But the only evidence Plaintiff can point to in support of an inference of discrimination is: (1) a 2005 statement from Frazza to Cook that Cook should find “new 1 Under the federal anti-age discrimination law, plaintiffs must show that their age was the “but-for” motivation behind the adverse employment action. It is less clear whether plaintiffs suing under the NYSHRL must satisfy a “but-for” standard or the more lenient “motivating factor” standard, the latter of which permits “mixed motive” claims. Colon, 2011 WL 6092299, at *6; see also DiGirolamo v. MetLife Group, Inc., No. 11–CV-2719, 2012 WL 3660525, at *1 n.3 (2d Cir. Aug. 28, 2012). Similarly, it is unclear what standard applies to NYCHRL age discrimination claims, although several district courts have suggested that these claims retain the “motivating factor” standard. See Colon, 2011 6092299, at *6. 2 At the outset, the Court notes that any claim arising out of BoA’s failure to promote Plaintiff in 2006 is time-barred because, although she argues otherwise, Plaintiff has not established that Defendants’ conduct was part of a continuing violation. See Patterson v. Cnty. of Oneida, 375 F.3d 206, 220 (2d Cir. 2004); Washington v. Cnty. of Rockland, 373 F.3d 310, 317 (2d Cir. 2004) (Sotomayor, J.). 5 blood” for his team (Pl. Opp. 2); (2) BoA’s decision in early 2006 to hire a younger employee for a position to which Plaintiff was not promoted (id. at 2; Pl. 56.1 Cntr-Stmt. ¶ 36); and (3) a statement from Plaintiff’s former manager that Frazza once said that it would be cheaper to have three loan officers doing the job of one top producer (id. ¶ 46). The first two items are too far removed in time to raise an inference of discrimination surrounding the alleged adverse actions. See, e.g., Grant v. Roche Diagnostics Corp., No. 09-CV-1540, 2011 WL 3040913, at *7 (E.D.N.Y. July 20, 2011) (statement in fall 2006 was not relevant to discriminatory intent behind February 2008 firing); see also Smith v. Revival Home Health Care, Inc., No. 97-CV-4415, 2000 WL 335747, at *4 (E.D.N.Y. Mar. 28, 2000) (“Statements made long before and not in the context of the adverse action cannot support a claim of discriminatory motive for that action.”). R. EVID. 801; The third item is inadmissible hearsay, FED. FED. R. CIV. P. 56(c)(2), and even if it was admissible, it is not probative of any discriminatory intent, cf. Khan v. HIP Centralized Laboratory Services, Inc., 03-CV2411, 2006 WL 842916, at *7 (E.D.N.Y. Mar. 27, 2006) (“To the extent that his comments were about seniority, rather than age, animus toward seniority does not discrimination.”). 6 create an inference of B. Retaliation Plaintiff also asserts that she was transferred, investigated, and fired in retaliation for her complaining that BoA’s treatment of Cook was racially discriminatory. are entitled to summary judgment on Plaintiff’s Defendants retaliation claims. Retaliation claims under the NYSHRL and the NYCHRL are also analyzed under the McDonnell Douglas framework.3 Stavis v. GFK Holding, Inc., 769 F. Supp. 2d 330, 339 (S.D.N.Y. 2011). “To establish a prima facie case of unlawful retaliation under the NYSHRL, ‘a plaintiff must prove that: (1) he participated in a legally protected activity: (2) his employer knew of the protected activity; (3) an adverse employment action ensued; and (4) a causal connection existed between the protected activity and the adverse employment action.’” Id. (quoting Bowles v. N.Y.C. Transit Auth., 285 F. App’x 812, 814 (2d Cir. 2008)). Once Plaintiff has met her prima facie burden, the issue becomes whether Defendants can identify a legitimate, non-retaliatory reason for their actions. E.g., Dixon v. Int’l Federation of Accountants, 416 F. App’x 107, 110 (2d Cir. 2011). 3 If so, then Retaliation claims under the NYCHRL are broader than those under federal law or the NYSHRL with respect to what constitutes an adverse employment action. See Fincher v. Depository Trust & Clearing Corp., 604 F.3d 712, 723 (2d Cir. 2010). The difference is not material in this case. 7 Plaintiff must offer evidence that Defendants’ stated reason is a pretext for retaliation. Id. Here, Plaintiff advances two theories of retaliation. First, she alleges that she complained about racial discrimination in January 2007 and was stripped of her Long Island banking centers shortly after. (Pl. Opp. 18.) Second, she alleges that she complained to BoA’s Advice and Counsel Unit in March 2008 about (a) age discrimination and (b) retaliation for her earlier complaint about race discrimination. (See id.) In her view, the March 2008 complaint led to further internal investigations of her loan-origination practices and her eventual firing. Plaintiff’s judgment. first theory cannot survive summary Assuming for the moment that she can make out a prima facie case, see Vahos v. General Motors Corp., No. 06-CV-6783, 2008 WL 2439643, 5 (E.D.N.Y. Jun. 16, 2008), Defendants have proffered a legitimate, non-retaliatory reason--a reshuffling of bank personnel in the New York region--for their decision to reassign Plaintiff’s Long Island territory. 56.1 Stmt. ¶¶ 38-40.) (See, e.g., Defs. Plaintiff attempts to rebut Defendants’ explanation by interactions that she had with Cole: Plaintiff says that after she told Cole that (a) she objected to the racially discriminatory way Cook was being treated and (b) she would prefer to stay on Cook’s team rather than transfer to 8 David Moss’ team, Cole replied that Plaintiff’s Long Island banks would be taken away and that the only way to retain them would be to accept a transfer to the new Long Island team. Pl. Dep. 219-20.) (See But on its face, this evidence reflects that Plaintiff had the option of remaining on Long Island. In light of BoA’s corporate reorganization, this conversation falls far short of showing that Plaintiff’s banking centers were taken from her in retaliation of her support for Cook.4 v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. See Weinstock 2000) (“The plaintiff must ‘produce not simply some evidence, but sufficient evidence to support a rational finding that the legitimate, nondiscriminatory reasons proffered by the defendant were false, and that more likely than not [retaliation] was the real reason for the employment action.’” (quoting Van Zant v. KLM Royal Dutch Airlines, 80 F.3d 708, 714 (2d Cir. 1996) (alterations omitted))).5 4 Plaintiff also repeatedly refers to a 2008 statement by Frazza in which he implicitly threatened to fire Plaintiff (Pl. Opp. 19, 21), but it’s not clear what this evidence is offered to show. She speculates that it is because Frazza was frustrated that BoA’s Advice and Counsel Unit rejected his attempt to issue Plaintiff a written warning following a July 2007 internal investigation (Pl. Opp. 8), but this speculation is wholly unsupported. Moreover, Frazza’s threat or his desire to see Plaintiff receive a written warning in July 2007 has no apparent connection to any age or retaliatory animus. 5 To the extent Plaintiff claims that her January 2007 complaint caused Defendants to initiate an investigation into her loan pipeline in July 2007, this claim cannot survive summary 9 Plaintiff’s judgment either. second She theory alleges that cannot she survive complained summary to BoA’s Advice and Counsel Unit in April 2008 about discrimination and retaliation (see, e.g., Aiossa Dep. 259-61) and that, as a result, she was subjected to further internal investigations and eventually fired (Pl. Opp. 8, 10-11, 13). Plaintiff can make out a prima facie Assuming, again, that case, Defendants have proffered evidence of a legitimate, non-retaliatory reason for their actions: to wit, their continued misgivings Plaintiff’s role in generating fraudulent loans. the Suffolk County District Attorney’s Office concerning In May 2008, contacted BoA about an incident of possible identity theft in connection with a loan originated member of her team. by Vincent Aiossa, Plaintiff’s (Defs. 56.1 Stmt. ¶ 108.) son and a This prompted an investigation of Plaintiff’s loan pipeline (id. ¶¶ 109-111) that revealed a pattern of inconsistencies and misrepresentations judgment either. Assuming that this investigation was an adverse action under the NYSHRL or the broader NYCHRL, and assuming that Plaintiff met her prima facie burden, she may not rely on temporal proximity to rebut Defendants’ stated reason for their action. See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010) (per curiam) (“The temporal proximity of events may give rise to an inference of retaliation for the purposes of establishing a prima facie case of retaliation under Title VII, but without more, such temporal proximity is insufficient to satisfy appellant's burden to bring forward some evidence of pretext.”). Here, Defendants proffered a legitimate reason for the investigation: Plaintiff appeared on an internal watch list in June 2006 because of fraud concerns with respect to two loans that she had originated. (See, e.g., Defs. 56.1 Stmt. ¶ 67.) 10 related to According loans to connected Defendants, to Plaintiff these red (see flags id. were ¶ the 121). reasons Plaintiff was fired (along with Vincent and another son, who also worked on Plaintiff’s team). Plaintiff attempts (Id. ¶¶ 130, 132.) to irrelevancies and speculation. rebut this evidence with Chiefly, she points to evidence that one of the investigators who examined Plaintiff’s pipeline could not recall anything in his investigation that would have given BoA reason to lose trust or confidence in Plaintiff. (See Pl. Opp. 11.) But another examiner did remember finding inconsistencies and misrepresentations associated with loans in Plaintiff’s amounted to (discussing pipeline. a (See concerning Alson’s personally Dep. “pattern” findings)) fraud (Alson Dep. 51-52). was Alson of (see “red 115.) These Caslin flags” Dep. for issues 122-123 potential And, regardless of whether Plaintiff implicated in any fraudulent lending, these issues caused BoA to lose trust and confidence in Plaintiff’s ability to manage her loan pipeline (see Rhine Dep. 48 (stating that BoA lost trust in Plaintiff by stopping short of accusing her of fraud)) or supervise the loan officers in her charge (see Cook Dep. 103; Rhine Dep. 69). The remaining material that Plaintiff cites in support of pretext serves her no better. She alleges that her termination was in violation of BoA’s “progressive” disciplinary 11 policy whereby employees are to be given a verbal warning and two written warnings before they are terminated. (Pl. Opp. 20.) On its face, though, the disciplinary policy is clear that these steps are “guidelines” that are “not inflexible” managers have discretion in implementing them. BANK006800 (“Use of the guidelines and that (Pl. Ex. 25 at may vary with the circumstances.”).) Plaintiff people” also that wanted he “[n]otwithstanding wrongdoing.” asserts that that Plaintiff no (Pl. Opp. 10.) one Frazza and “told her suspected the several sons fired Aiossas of The evidence in “support” of this assertion is anything but; the email (which was neither sent to or from Frazza) states simply that “although John [Frazza] and Advice and Cousnel believe that [Plaintiff] is involved they don’t feel like they have enough specific evidence to terminate her at this point.” (Pl. Ex. 34.) Similarly, Plaintiff misquotes another document to make it seem as if Frazza “wanted to ‘pursue harsh action against the Aiossa’s [sic].’” (misquoting Pl. Ex. 33 at BANK0953).) (Pl. 11 That document actually says that Frazza “is pursuing harsh actions” in the context of Vincent Aiossa’s involvement with investigated by the Suffolk DA. The concerns rest Frazza’s of loan that was being (See Pl. Ex. 33.) Plaintiff’s threat the about 12 “pretext” firing a top evidence loan mainly generator (i.e., Plaintiff) that happened before Plaintiff’s April 2008 complaint (Pl. Opp. 8) and baseless speculation that Cole and Frazza targeted Plaintiff for retaliation because she “continued to prosper” (id. 7).6 Neither of these theories raises an issue of fact as to Defendants’ retaliatory intent. See Boise v. N.Y. Univ., 201 F. App’x 796, 797 (2d Cir. 2006) (mere speculation insufficient to show pretext). reasonably find that Defendants’ actions. that On this evidence, no jury could retaliation was a motive for See Bennett v. Verizon Wireless, 326 F. App’x 9, 10 (2d Cir. 2009); Jute v. Hamilton Sundstrand Corp., 420 F.3d 166, 173 (2d Cir. 2005). 6 At bottom, Plaintiff has only Plaintiff makes much of Cole’s allegedly using a racist slur in reference to Cook to show that Defendants’ actions toward her were motivated by retaliatory animus. (See Pl. Opp. 14.) The only evidence of this remark, though, is from testimony of another former BoA employee during a deposition in connection with Cook’s case against the bank. (See Pl. Ex. 27 at 54.) This is inadmissible hearsay. Plaintiff argues that (a) it falls within the former testimony exception to Federal Rule of Evidence 804 and (b) Defendants waived any objection by not raising it when she cited the same evidence in an earlier motion to compel. Neither argument is persuasive. Plaintiff has not explained why the Court should treat the Plaintiff as “unavailable,” FED. R. EVID. 804(a), and the Court disagrees that Defendants’ not objecting to this evidence during an earlier motion to compel acts as a waiver. On the latter point, the authority Plaintiff cites (Pl. Sur-Reply 2) holds that a party’s failure to object to evidence at trial waives the party’s right to appeal the evidentiary issue. Krieger v. Gold Bond Bldg. Prods., 863 F.2d 1091, 1096 (2d Cir. 1988). Accordingly, the Court will not consider the employee’s hearsay statement that she heard Cole use a racist slur. Patterson v. Cnty. of Oneida, N.Y., 375 F.3d 206, 222 (2d Cir. 2004); accord Butler v. Indianapolis Metro. Police Dep’t, No. 07–CV–1103, 2009 WL 2092416, at *3 (S.D. Ind. July 13, 2009). 13 temporal links between her April 2008 complaint, the May 2008 investigation into her pipeline (which was prompted by an inquiry from law enforcement), and her firing at the end of August 2008. And temporal insufficient to show pretext. proximity, without more, is See El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 933 (2d Cir. 2010). C. Aiding and Abetting As Plaintiff has not established an underlying violation of the NYSHRL or the NYCHRL, her aiding and abetting claims against Cole and Frazza also fail. E.g., Sowemimo v. D.A.O.R. Sec., Inc., 43 F. Supp. 2d 477, 490 (S.D.N.Y. 1999) (“However, liability under the HRL and the NYCHRL must first be established as to the employer/principal before an individual may be considered an aider and abettor.”). D. Breach of Contract Plaintiff claims that BoA breached the 2008 CRE Retail Sales Plan by not paying commissions on loans that closed while she was on administrative leave. (Defs. 56.1 Stmt. ¶ 138.) There is no evidence that Plaintiff was denied the compensation she earned. Plaintiff was paid $15,000 per month while she was on leave (Defs. 56.1 Stmt. ¶ 139), and the loans that closed while she was away did not entitle her to anything beyond that amount (see Defs. 56.1 Stmt. Ex. C ¶ 11). undisputed. This evidence is Plaintiff’s conclusory assertion that she was on 14 pace to earn more in 2008 than she earned in 2007 does not raise a material issue of fact as to whether BoA deprived her of commissions during the leave period. CONCLUSION For the foregoing judgment motion GRANTED. reasons, Defendants’ summary The Clerk of the Court is respectfully directed to mark this case CLOSED. SO ORDERED. /s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J. Dated: September 21 , 2012 Central Islip, New York 15
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