McDuffee v JP Morgan Chase Bank

[*1] McDuffee v JP Morgan Chase Bank 2012 NY Slip Op 50958(U) Decided on May 23, 2012 Supreme Court, Nassau County Marber, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 23, 2012
Supreme Court, Nassau County

Irene McDuffee, Plaintiff,

against

JP Morgan Chase Bank and RASHAWN DAVIS, Defendants.



020595/09



Counsel for the Plaintiff:

The Harman Firm, P.C.

Walker G. Harman, Jr., Esq.

200 West 57th Street

New York, New York 10019

Counsel for the Defendants:

JP Morgan Chase Legal and Compliance Department

Frederic L. Lieberman, Esq.

One Chase Manhattan Plaza, 26th Floor

New York, New York 10081

Randy Sue Marber, J.



Upon the foregoing papers, the motion by the Defendants, JP MORGAN CHASE BANK ("Chase") and RASHAWN DAVIS ("Davis"), seeking an order pursuant to CPLR § 3212 granting summary judgment in their favor and dismissing the Plaintiff's complaint, is determined as hereinafter provided.

Factual Background

The Plaintiff was born on August 25, 1941 and is a female. (See McDuffee Affidavit, ¶ 1) On or about August 26, 1998, when the Plaintiff was fifty-seven (57) years old, she began working at Chase as a personal banker at the Carle Place branch. (Id. at ¶ 11) In 2003, the Plaintiff was transferred to the Great Neck, Northern Boulevard branch. (Id. at ¶ 12) The Plaintiff was the only [*2]female personal banker at the Great Neck, Northern Boulevard Branch and the only personal banker over the age of fifty (50) at that location. (Id. at ¶ 13) In or about April, 2007, the Defendant, Davis, became the new branch manager at the Great Neck, Northern Boulevard branch. (See Davis Affidavit in Support, ¶ 3) In that position, Davis was the Plaintiff's direct supervisor. (Id. at ¶ 6; see also McDuffee Affidavit, ¶ 14)

A personal banker's overall job function is to acquire, retain and deepen customer relationships. (See Davis Affidavit, ¶ 7) As a personal banker at Chase, the Plaintiff was entitled to participate in an employee incentive plan which provided that a personal banker could receive Product Value Credits (hereinafter "PVCs") for procuring new money from other banks, among other things. (Id. at ¶ 11; see also McDuffee Affidavit, ¶ 16) Based upon specified banking products and service sales events, personal bankers at Chase were entitled to receive monetary compensation in addition to their salary. (Id.)

Personal bankers use an on-line database, Contact Manager, to access customer information. Contact Manager contains profile information on customers as well as contact history which includes all sales, service history and notes inserted by personal bankers. (See Davis Affidavit, ¶ 10) Personal bankers are required to insert notes in the contact history screen of Contact Manager regarding the profiling and/or relationship building efforts taken to receive a PVC.

Chase's Personal Banker Incentive Plan (hereinafter "Plan") states that, "[u]nethical behavior, violations of the Code of Conduct, and deliberate attempts to inflate incentives or manipulate the timing of PVC credit or incentives will lead to ineligibility for payments, disqualification from the Plan, and may result in disciplinary action, including termination of employment". (See 2008 Personal Banker Incentive Plan, page 6, attached to the Davis Affidavit as Exhibit "6") The Plan further states that "any Personal Banker who knowingly takes action to the detriment of a customer or JP Morgan Chase in order to increase an incentive award, or falsifies information that could affect incentive results, will not be eligible for payment, may be disqualified from the Plan, and may be subject to disciplinary action, including termination of employment". (Id.)

Pursuant to the Plan, personal bankers were permitted to, inter alia, receive PVCs for account "upsells", which occurs when the banker identifies $5,000.00 or more "new money" as a result of their profiling and long-term, relationship-building efforts and is instrumental in the customer's decision to deposit the funds in an existing consumer or business savings account. (See Plan, Exhibit "6" at page 15) When a personal banker submits an upsell to receive a PVC, the branch manager "must review the documentation, in addition to the Contact History screen in Contact Manager, to determine whether or not [the personal banker] identified the funds as a result of ... profiling or relationship-building efforts, and were instrumental in the customer's decision to bring the money to Chase". (Id.) The Plan also identifies instances that would not be considered an upsell, such as a customer's response to a rate advertisement. (Id. at page 16)

On November 13, 2008, the Plaintiff submitted a savings upsell in the amount of $25,000.00 to be approved by the Defendant, Davis. According to the Defendant, Davis, the Plaintiff had indicated in Contact Manager that she contacted a customer, Robert Klein, and asked him to bring in new money from a brokerage account at another institution. (See Davis Affidavit , ¶ 18) Davis states in his affidavit that in reviewing Mr. Klein's Contact History, he noticed that the Plaintiff did not have any prior history with Mr. Klein for the preceding two (2) years. He also noticed that the Plaintiff processed a coupon to receive PVC fourteen minutes before the note indicating that she [*3]acquired new money. (Id.)

The Defendant, Davis, states in his affidavit that he spoke with the Plaintiff regarding his concerns about the notes in Contact Manager. According to Davis, the Plaintiff said that Mr. Klein called the branch after seeing an advertisement and that she encouraged Mr. Klein to bring in the new funds. (Id. at ¶ 19) Davis stated that he decided to further investigate the matter and verify the activity with Mr. Klein. (Id.) As per Davis' affidavit, Mr. Klein informed him that he did not speak with the Plaintiff prior to coming into the branch on November 13, 2008 and that he came in to deposit money in response to a rate advertisement. Thereafter, Davis sent an email to James Chalmers, the District Manager, advised him of the situation and suggested that corrective action be taken against the Plaintiff. (See Davis Affidavit, ¶ 20) In the email to Mr. Chalmers, Davis stated that he called Mr. Klein to confirm that "Irene had contacted him". Davis also stated in the email that Mr. Klein's response was that she did not contact him. (See Email from Davis to Chalmers, dated November 14, 2008, annexed to Davis' Affidavit in Support as Exhibit "15") Davis then stated that he "would like to proceed with corrective action based upon the fact that Irene misrepresented the facts in this situation". (Id.)

Davis states that on Friday, November 14, 2008, the Plaintiff submitted a savings upsell for another client, John Bazdekis, also in the amount of $25,000.00. (See Davis Affidavit, ¶ 23) Davis' review of Contact Manager revealed that the Plaintiff made the following inquiry: "Rate inquiry Able to add funds Asked for new money". (See Davis Affidavit, ¶ 23; see also Lieberman Affidavit Exhibit "16") Davis states in his affidavit that on the same day, only three (3) minutes later, the Plaintiff processed a coupon for the customer to receive a PVC. (Id.) According to Davis, based on this "pattern of behavior", he reached out to Mr. Chalmers and to Julie Ginsburg, a Human Resources Business Partner, to advise them of same. (Id. at 24) Three (3) days later, on November 17, 2008, Davis states that he contacted the customer, Mr. Bazdekis, who stated that he came into the branch as a result of a promotional offer he received in the mail and that he did not speak with the Plaintiff about bringing in new funds to Chase. (See Davis Affidavit ¶ 24)

Davis continues that, after further discussions with Mr. Chalmers and Ms. Ginsburg, they concluded that the Plaintiff's actions warranted termination of her employment. (Davis Affidavit ¶ 26) Thereafter, a Recommendation for Termination was prepared by Davis and approved by Karen Hart, a Human Resources Business Partner and Nancy Lawlor, Market Manager. (Id. at ¶¶ 26-28) On November 19, 2008, the Plaintiff was terminated, effective immediately. (Id. at ¶ 29) Davis states that his actions were not on account of the Plaintiff's age or gender. (Id. at ¶ 30) Davis also states that in his capacity as a Branch Manager at Chase, he did not have any independent authority to make personnel decisions such as hiring and firing. Rather, he was required to make recommendations to and consult with his managers and Human Resources to obtain approval for personnel decisions. (Id. at ¶ 31)

The Plaintiff states in her affidavit in opposition to the motion for summary judgment that immediately after Davis became the branch manager, she realized that she was being treated differently than other younger, male personal bankers. (See McDuffee Affidavit, ¶ 15) According to the Plaintiff, the other personal bankers were permitted to use their cell phones, refused to perform certain tasks and talked back to Davis regularly. (Id.) Davis would refer new clients to young, male bankers such as John Marino, even though John Marino was new to the firm and the banking industry. (Id.) The Plaintiff, to the contrary, was never referred new customers and/or business from [*4]Davis.

The Plaintiff states that she never committed a Code of Conduct violation at Chase. She states in her affidavit that when other personal bankers committed Code of Conduct violations, they were not terminated or reprimanded in any way. (See McDuffee Affidavit, ¶ 16) As an example, the Plaintiff states that two younger male personal bankers, one of whom was Yan Tsukerman, would refer business to one another even though it was a Code of Conduct violation to do so. (Id.) The Plaintiff states that they were open about their conduct, Davis knew about it, yet no corrective action was ever taken. (Id.) The Plaintiff further states that she referred business clients for products on several occasions and never received PVCs. Also, there were many occasions where customers with whom the Plaintiff had a long-standing relationship would request that the Plaintiff receive a PVC for her efforts in bringing new money to the bank, yet she was denied any PVC credit by Davis.

The Plaintiff also references several specific examples of situations where her male counterparts received PVCs for actions that she did not receive any PVC. (Id. at ¶¶ 22-24) In the ten years that the Plaintiff was employed with Chase and participated in the Plan, she was never reprimanded or disciplined for violating Chase's Code of Conduct prior to this incident.

The Plaintiff states in her affidavit that she put in for a PVC incentive with respect to a customer with whom she had a long-standing relationship, Mr. Bazdekis. The Plaintiff states that she was terminated for simply submitting a PVC request for Davis' approval which could have been denied. Rather than denying her request for PVCs that would have amounted to additional compensation of $25.00 for each customer, the Plaintiff was terminated. (Id. at ¶¶ 6 and 30-33) As adduced from the Plaintiff's affidavit, on October 15, 2008, a younger, male personal banker who sits next to the Plaintiff at the branch requested approval for a PVC with respect to a repeat customer. Davis did not approve the younger, male banker's request and he was not terminated for similar conduct in which the Plaintiff engaged. (See McDuffee Affidavit at ¶ 38) Prior to her termination, the Plaintiff was never contacted by Human Resources. The Defendant, Davis, informed the Plaintiff that she was terminated and that the termination was effective immediately.

The Plaintiff submits the affidavit of Whitney Costin, a legal assistant at the Plaintiff's counsel's firm, who states that she contacted Mr. Bazdekis by telephone to confirm the conversation he had with Davis prior to depositing the $25,000.00. According to Ms. Costin, Mr. Bazdekis declared that he did not recall ever speaking with Mr. Davis or anyone else at Chase regarding his $25,000.00 deposit. (See Costin Affidavit)

At the time of the Plaintiff's termination, she was sixty-seven (67) years old and still the only female personal banker at the Chase Great Neck, Northern Boulevard branch. (See McDuffee Affidavit ¶ 35) According to the Plaintiff, Davis was attempting to promote a younger male employee in his twenties by the name of Keith Bishop who had no prior personal banking experience. The Plaintiff states that unless her position was vacant, there would not have been a vacancy to promote Mr. Bishop to the position of personal banker at that branch. (Id. at 40)

In his Reply affidavit, Davis states that the Plaintiff's Code of Conduct Violation was not for merely submitting a PVC request, but rather, for misrepresenting her actions in Contact Manager to receive the PVCs. He further stated that he confirmed with both customers, Robert Klein and John Bazdekis, that the specific actions referenced in contact manager by the Plaintiff did not occur. (See Davis Reply Affidavit ¶¶ 5-6)

Davis also states in his Reply affidavit that although Keith Bishop was promoted to the [*5]position of personal banker after the Plaintiff was terminated, steps were already being taken to promote Mr. Bishop prior to her termination. It is not disputed that there would not have been another personal banker position vacant at the Great Neck, Northern Boulevard branch but for the Plaintiff's termination creating said vacancy.

Davis opposes the Plaintiff's contentions that Mr. Bishop did not have prior personal banking experience. (Id. at ¶ 13) Davis continues that it was not his intention to replace the Plaintiff. But for the misrepresentations that resulted in her termination, the Plaintiff was a "good producer in the branch, who [he] had a strong incentive to retain since her performance contributed to the branch's favorable Tier 1 P & L position". (See Davis Reply Affidavit, ¶ 17)

The Court will not consider Julie M. Ginsburg's Affidavit in Support of or Affidavit in Reply to the motion for summary judgment as it was notarized by a New Jersey notary. The affidavit is insufficient under CPLR § 2309 (c) in that it lacks a Certificate of Conformity as required by Real Property Law § 299-a (1). Accordingly, the affidavit is not in admissible form and will not be considered in support of the Defendants' motion.

Legal Discussion

The standards for recovery under Section 296 of the Executive Law are in accord with Federal standards under Title VII of the Civil Rights Act of 1964. 42 USC § 2000e et seq.; See Matter of Laverack & Haines v. New York State Div. of Human Rights, 88 NY2d 734, 738 (1996); Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 NY2d 937, 938 (1985). On a claim of discrimination, a plaintiff has the initial burden to prove by a preponderance of the evidence a prima facie case of discrimination. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981); McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973).

To support a prima facie case of age and/or gender discrimination under the Human Rights Law, the Plaintiff must demonstrate (1) that she is a member of the class protected by the statute; (2) that she was actively or constructively discharged; (3) that she was qualified to hold the position from which she was terminated; and (4) that the discharge occurred under circumstances giving rise to an inference of age and/or gender discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. at 802, supra; see also Woroski v. Nashua Corp., 31 F.3d 105, 108 (2d Cir).

The burden then shifts to the employer "to rebut the presumption of discrimination by clearly setting forth, through the introduction of admissible evidence, legitimate, independent, and nondiscriminatory reasons to support its employment decision" Matter of Miller Brewing Co. v. State Div. of Human Rights, 66 NY2d at 938, supra; see also, Texas Dept. of Community Affairs v. Burdine, 450 U.S. at 253, supra.

Once the employer has put forth a legitimate, nondiscriminatory reason to support its employment decision, a plaintiff is still entitled to prove that the legitimate reasons proffered by defendant were merely a pretext for discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. at 805, supra. The Plaintiff must be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for her termination were in fact a coverup for a ... discriminatory decision. This may be accomplished when it is "shown both that the reason was false, and that discrimination was the real reason" St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515 (1993) [*6]

Generally, a plaintiff is not required to prove her claim to defeat summary judgment. Zuckerman v. City of New York, 49 NY2d 557, 562 (1980); Sillman v. Twentieth Century-Fox Film Corp., 3 NY2d 395, 404 (1957) ( issue-finding, rather than issue-determination, is the key to the procedure'). "To defeat a properly supported motion for summary judgment in an age discrimination case, plaintiffs must show that there is a material issue of fact as to whether (1) the employer's asserted reason for [the challenged action] is false or unworthy of belief and (2) more likely than not the employee's age was the real reason'" Id. at 104, quoting Woroski v. Nashua Corp., 31 F.3d at 108-109, supra; see also, Gallo v. Prudential Residential Servs., Ltd. Partnership, 22 F.3d 1219, 1225 (2d Cir. 1994).

It is not the court's function on a motion for summary judgment to assess credibility. See Glick & Dolleck v. Tri-Pac Export Corp., 22 NY2d 439, 441 (1968); Capelin Assocs. v Globe Mfg. Corp., 34 NY2d 338, 341 (1974). Moreover, in accordance with the standards for summary judgment, it is the movant who has the burden to establish his entitlement to summary judgment as a matter of law. Zuckerman v. City of New York, 49 NY2d at 562; Sommer v. Federal Signal Corp., 79 NY2d 540, 555. Thus, to prevail in this case, the Defendants must demonstrate that the firing was based upon nondiscriminatory reasons.

Keeping the McDonnell Douglas framework in mind, the Court will now address the Defendants' motion for summary judgment. The Defendants allege that the Plaintiff was terminated because of her violations of Chase's Code of Conduct when the bank determined that she allegedly falsely represented that she had earned PVC incentives when she submitted claims for two upsells that were allegedly not the result of her efforts. The Defendants do not dispute the first three elements required to establish a claim for age and/or gender discrimination, to wit, that (1) the Plaintiff was a member of a protected class; (2) that she was qualified to hold the position; and (3) that she was terminated from employment. The Defendants do dispute, however, that the Plaintiff's termination of employment occurred under circumstances giving rise to an inference of discrimination.

The initial burden upon the Plaintiff to prove that the termination occurred under circumstances giving rise to an inference of discrimination is de minimis. The Plaintiff submitted evidence that other younger, male personal bankers engaged in Code of Conduct violations while under the direct supervision of the Defendant, Davis, for which they were not reprimanded or disciplined. The Plaintiff also submitted evidence, corroborated by the Defendants, that she was replaced by a younger, male personal banker after her discharge. This evidence is sufficient to satisfy the minimal burden required to establish that the Plaintiff was the victim of discrimination.

Next, the Defendants, in turn, have satisfied their burden under the McDonnell Douglas burden shifting framework of articulating a legitimate, nondiscriminatory business reason for which the Plaintiff was discharged. This reason was that the Plaintiff was alleged to have submitted two false claims for PVC incentives under the Plan for alleged savings account upsells on consecutive days. Thus, the Defendants have articulated a clear and specific reason, which, if taken as true, would lead to the conclusion that there existed a legitimate nondiscriminatory reason for the adverse action taken against the Plaintiff.

In light of the Defendants' proffered nondiscriminatory reason for the Plaintiff's termination, the burden then shifts back to the Plaintiff to present sufficient evidence to raise an issue of fact that may lead a reasonable jury to conclude that the Defendants discriminated against her because of her [*7]age and gender. In that regard, the Plaintiff must present evidence that establishes the Defendants' proffered reasons were pretextual.

In determining whether the Plaintiff's evidence is sufficient to defeat the Defendants' motion for summary judgment, a review of the Supreme Court's decision in Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000), is instructive. In Reeves, the Supreme Court considered "whether a defendant is entitled to judgment as a matter of law when the plaintiff's case consists exclusively of a prima facie case of discrimination and sufficient evidence for the trier of fact to disbelieve the defendant's legitimate, nondiscriminatory explanation for its action." 530 U.S. at 137. The Court concluded that the question cannot definitely be answered either in the affirmative or the negative, but rather, depended on the totality of the evidence in a particular case. In explaining why an affirmative answer was not always appropriate, the Court explained:

Proof that the defendant's explanation is unworthy of credence is simply one form of circumstantial evidence that is probative of intentional discrimination, and it may be quite persuasive .... Thus, a plaintiff's prima facie case, combined with sufficient evidence to find that the employer's asserted justification is false, may permit the trier of fact to conclude that the employer unlawfully discriminated.

Reeves, 533 U.S. at 147-148. The Court continued to explain that any particular case will depend on a number of facts, including:

"the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports the employer's case and that properly may be considered on a motion..."

Reeves, 530 U.S. at 149-150.

In examining the facts of this case under the rubric of Reeves and its progeny, this Court concludes that the competent evidence submitted by the Plaintiff is sufficient to raise an issue of fact that the Plaintiff was the victim of age and gender discrimination. In that regard, the Plaintiff submitted evidence that she was subjected to disparate treatment from the time Davis became her immediate supervisor as branch manager. There are several examples of instances where the male, younger personal bankers in her branch were permitted to engage in Code of Conduct violations without any reprimand or discipline by Davis. According to the Plaintiff, requesting PVC incentives for customers with whom the personal banker has a long-standing prior relationship was common. The Plaintiff explained situations where other male, younger personal bankers were not terminated for similar or worse conduct. Moreover, the Defendant, Davis, would refer new clients and/or products to the other younger, male personal bankers and excluding the Plaintiff from similar opportunities.

Additionally, the Defendants' proof that the Plaintiff did not act consistent with the notes set forth in Contact Manager consists entirely of hearsay evidence. Davis states in his affidavit that based on his conversation with the Chase customers, the Plaintiff misrepresented the facts that she procured the new money deposited into the bank. Indeed, there is no affidavit from the customers themselves submitted in support of these contentions. The Plaintiff submitted an affidavit, albeit also containing hearsay evidence, which states that one of the customers did not ever recall speaking with the Defendant, Davis, prior to depositing new money into the bank. Based on the record, [*8]particularly the affidavits of the Plaintiff and the Defendant, Davis, there is clearly a credibility issue which is not within the province of the court to resolve.

This evidence, taken together with the uncontroverted evidence that the Plaintiff's position was replaced by a younger, male personal banker who admittedly did not have as much personal banking experience as the Plaintiff, is sufficient to permit a reasonable trier of fact to conclude that age and gender were determinative factors in the Defendants' decision to terminate the Plaintiff. As adduced from the reasoning in Reeves, there is no per se rule requiring in all instances that a plaintiff claiming age discrimination offer more than a prima facie case and evidence of pretext. While no single piece of evidence examined alone may be sufficient to defeat the Defendants' motion for summary judgment, all of the evidence, taken together, prevents this Court from granting the Defendants' motion. As the Court of Appeals has stated, "discrimination is rarely so obvious or its practices so overt that recognition of it is instant and conclusive, it being accomplished usually by devious and subtle means". 300 Gramatan Ave. Assocs. v. State Div. of Human Rights, 45 NY2d 176 (1978).

The Defendants also contend that the age and gender discrimination claims against the Defendant, Davis, should be dismissed as there is no basis for individual or aider and abettor liability against him.

The Court of Appeals has held that individuals will not be subject to suit under the Human Rights Law unless they are "shown to have any ownership interest or any power to do more than carry out personnel decisions made by others". Patrowich v. Chemical Bank, 63 NY2d 541, 542 (1984). However, in Tomka v. Seiler Corp., 66 F.3d 1295 (2d Cir. 1995), the Second Circuit carved out an exception to this rule, holding that under Executive Law § 296 (6), which provides that "it shall be an unlawful discriminatory practice for any person to aid, abet, incite, compel or coerce the doing of any of the acts forbidden under this article, or attempt to do so," an individual "who actually participates in the conduct giving rise to a discrimination claim may be held personally liable under the [Human Rights Law]" (Id. at 1317)

In the instant matter, the Plaintiff presented evidence that it was the Defendant, Davis, who recommended the Plaintiff for termination after conducting his own investigation into the alleged misrepresentations of the Plaintiff. Although approved by Davis' supervisors, there is no evidence that any other individual conducted any independent investigation to determine the accuracy of the facts presented by Davis.

Hence, although Davis is not an "employer" within the meaning of Executive Law § 292 (5), and thus cannot be held personally liable for a violation of Executive Law § 296 (1) (a), the Plaintiff alleged facts sufficient to state a cause of action against her direct supervisor pursuant to Executive Law § 296 (6), which imposes liability upon individuals who aid and abet an employer that commits employment discrimination in violation of Executive Law § 296 (1) (a). See Patrowich v. Chemical Bank, 63 NY2d 541 (1984); see also Strauss v. New York State Dept. of Educ., 26 AD3d 67 (3d Dept. 2005)Accordingly, it is hereby

ORDERED, that the Defendants' motion seeking an order pursuant to CPLR § 3212 granting summary judgment in their favor and dismissing the Plaintiff's complaint, is DENIED.

This decision constitutes the order of the Court.

DATED:Mineola, New York [*9]

May 23, 2012

________________________________

Hon. Randy Sue Marber, J.S.C.