SHORT FORM ORDER

SUPREME COURT OF THE STATE OF NEW YORKCOUNTY OF NASSAU

Present: HON. RANDY SUE MARBERJUSTICE TRIAL/IAS PART 14

IRENE McDUFFEE

Plaintiff Index No. 020595/09Motion Sequence...Motion Date...03/23/12-against-

IP MORGAN CHASE BANK and RASHA DA VIS,

Defendants.

Papers Submitted:

Notice of Motion..................................................Affidavit of Rashan L. Davis in Support..............Affidavit of Frederic L. Lieberman in Support.....Memorandum of Law in Support...........................Affirmation in Opposition......................................Affidavit of Irene McDuffee in Opposition...........Affidavit of Whitney Costin in Opposition............Memorandum of Law in Opposition.......................Reply Affidavit of Rashan L. Davis........................Reply Affidavit of Frederic L. Lieberman..............Reply Memorandum of Law..... .........

...... ..... ... .......

Upon the foregoing papers, the motion by the Defendants, IP MORGAN

CHASE BANK ("Chase ) and RASHA WN DAVIS ("Davis ), seeking an order pursuant to

CPLR 3212 granting summary judgment in their favor and dismissing the Plaintiffs

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 fift-seven (57) years

old, she began working at Chase as a personal banker at the Carle Place branch. (Id. at 11)

In 2003 , the Plaintiffwas transferred to the Great Neck, Northern Boulevard branch. (Id.

12) The Plaintiff was the only female personal banker at the Great Neck, Northern

Boulevard Branch and the only personal banker over the age of fift (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 Plaintiffs 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 profie 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 profiing 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 ofPVC credit or incentives wil lead to ineligibilty 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 IP Morgan Chase in order to

increase an incentive award, or falsifies information that could affect incentive results, wil

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 profiing 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 ... profiing 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

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 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 em ail to lames 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 em ail 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

savmgs upsell for another client lohn 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 lulie 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 Plaintiffs 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 ofthe Plaintiffs 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 Iohn Marino, even though

Iohn 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 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 Plaintiffs 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 Plaintiffthat

she was terminated and that the termination was effective immediately.

The Plaintiff submits the affidavit of Whitney Costin, a legal assistant at the

Plaintiffs 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 Plaintiffs termination, she was sixty-seven (67) years old

and stil 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 Iohn Bazdekis, that the specific actions referenced in

contact manager by the Plaintiff did not occur. (See Davis Reply Affidavit ~~ 5-

Davis also states in his Reply affidavit that although Keith Bishop was

promoted to the 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 Plaintiffs termination creating said vacancy.

Davis opposes the Plaintiffs 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 wil not consider Iulie M. Ginsburg s Affidavit in Support of or

Affidavit in Reply to the motion for summary judgment as it was notarized by a New Iersey

notary. The affidavit is insufficient under CPLR ~ 2309 (c) in that it lacks a Certificate of

Conformity as required by Real Propert Law ~ 299-a (1). Accordingly, the affidavit is not

in admissible form and wil 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 Lave rack Haines v. New York State Div. of Human Rights

2d 734 , 738 (1996); Matter of Miler Brewing Co. v. State Div. of Human Rights, 66

2d 937, 938 (1985). On a claim of discrimination, a plaintiff has the initial burden to

prove by a preponderance ofthe 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 Miler Brewing Co. v. State Div. of Human Rights 66 N. 2d 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 stil 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)

Generally, a plaintiff is not required to prove her claim to defeat summary

judgment. Zuckerman v. City of New York 49 N. 2d 557 562 (1980); Silman v. Twentieth

Century-Fox Film Corp. 3 N.Y.2d 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

credibilty. See Glick Dolleck v. Tri-Pac Export Corp. 22 N. 2d 439, 441 (1968);

CapelinAssocs. Globe Mfg. Corp. 34 N. 2d 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 oflaw. Zuckerman v. City of New York, 49

2d at 562; Sommer v. Federal Signal Corp. 79 N. 2d 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 wil 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 eared 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 Plaintiffwas a member ofa 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 Plaintiffs 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 Plaintiffwas discharged. This reason was that the Plaintiffwas 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 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 oflaw

when the plaintiffs 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 credenceis simply one form of circumstantial evidence that is probativeof intentional discrimination, and it may be quite persuasive....Thus, a plaintiffs prima facie case, combined with sufficientevidence to find that the employer s asserted justification isfalse, may permit the trier of fact to conclude that the employerunlawfully discriminated.

Reeves 533 U.S. at 147- 148. The Court continued to explain that any

particular case wil depend on a number of facts , including:

the strength of the plaintiff s prima facie case, the probativevalue of the proof that the employer s explanation is false, andany other evidence that supports the employer s case and thatproperly 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 ' proofthat 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 ofthese 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, particularly the affidavits of the

Plaintiff and the Defendant, Davis , there is clearly a credibilty 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 N. 2d 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 liabilty against him.

The Court of Appeals has held that individuals wil 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 carr out personnel decisions made by others Patrowich v. Chemical Bank

63 N.Y.2d 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 liabilty 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 N. 2d 541 (1984); see

also Strauss v. New York State Dept. of Educ. 26 A.D.3d 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 Plaintiffs complaint

is DENIED.

This decision constitutes the order of the Court.

DATED: Mineola, New YorkMay 23 2012

Hon. Rand

NTEREDMAY 29 2012

NASSAU COUNT,YCOUNTY CLERK' S OFFICE