Vinokur v. Bank

701 F.Supp.2d 276

Faina VINOKUR, Plaintiff,v.SOVEREIGN BANK, Defendant.

No. 07-CV-2893 (KAM) (MDG).

United States District Court E.D. New York.

March 22, 2010.

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Steven A. Morelli, The Law Offices of Steven A. Morelli, Carle Place, NY, for Plaintiff.

Wendy J. Mellk, Jackson Lewis, LLP, Melville, NY, for Defendant.

MEMORANDUM & ORDER

MATSUMOTO, District Judge:

Presently before the court is defendant Sovereign Bank's (“defendant” or “Sovereign”) motion for summary judgment, pursuant to Federal Rule of Civil Procedure 56, seeking dismissal of plaintiff Faina Vinokur's (“plaintiff” or “Vinokur”) action. In this action, plaintiff alleges employment discrimination in violation of New York State Executive Law (“NYSEL”) § 296 and New York City Human Rights Law (“NYCHRL”), Administrative Code § 8-107. ¹ Plaintiff alleges that defendant discriminated against her on the basis of disability (rheumatoid arthritis), age (born 1954), and national origin (Russian). Further, plaintiff alleges that defendant failed to reasonably accommodate her disability and terminated her in retaliation for seeking an accommodation. (Doc. No. 1, Compl. ¶¶ 35-38.) For the reasons set forth herein, defendant's motion for summary judgment is granted in its entirety.

BACKGROUND

The following facts, taken from the parties' statements pursuant to Local Civil Rule 56.1, are undisputed unless otherwise indicated. The court has considered whether the parties have proffered admissible evidence in support of their positions and has viewed the facts in the light most favorable to the nonmoving plaintiff.

A. Plaintiff's Employment at Independence Community Bank

Plaintiff was born in Russia in 1954. (Doc. No. 12, Defendant's Local Civil Rule 56.1 Statement (“Def. 56.1 Stmt.”) ¶ 4.) In 1998, plaintiff commenced employment with Independence Community Bank (“Independence”) as a teller at Independence's Avenue J, Brooklyn community banking office (the “CBO” or “branch”). ( Id. ¶ 16.) She was hired by then Branch Manager Carolina Scalici and was supervised by then Branch Assistant Manager Karyn Baldassarre. ² ( Id. ¶¶ 16-17.)

In or around 1999, plaintiff was diagnosed with rheumatoid arthritis. ( Id. ¶ 21.) Between 1999 and 2006, plaintiff was granted approximately five leaves of absence from work due to her medical condition. ( Id. ¶ 22.) One each occasion, plaintiff submitted a doctor's note explaining the reason for her absence. ( Id.) Although plaintiff acknowledges that no bank employee ever made any negative comment regarding her medical condition ( id. ¶ 23), plaintiff generally contends that she was given “a problem when she needed time off for her medical condition” but does not specify how or by whom (Doc. No. 14, Plaintiff's Local Civil Rule 56.1 Counterstatement (“Pl. 56.1 Stmt.”) ¶ 23). Plaintiff claims that her medical condition “frustrated her manager to the point [sic] manager would be mad at her.” ( Id. ¶ 24.)

Plaintiff does not believe that her medically-excused leaves of absence affected her employment in any manner. (Def. 56.1 Stmt. ¶ 25.) Indeed, in or around 2004, plaintiff was selected by Ms. Scalici and Ms. Baldassarre for training as Head Teller. ( Id.) That position was “one of greater responsibility than a teller.” ( Id.) After plaintiff received training for that position, plaintiff declined the offer to become the permanent Head Teller because she could not lift heavy boxes. ( Id. ¶ 27.) Although Ms. Scalici offered to lift any boxes for plaintiff, plaintiff nevertheless declined the promotion. ( Id.) Plaintiff regularly acted as “back-up” Head Teller and was one of two tellers granted authority to exercise “overrides of teller transactions requiring supervisory approval.” ( See id. ¶¶ 27-28.)

B. Sovereign Bank and its Policies

In or around June 2006, Independence Bank was acquired by the parent company of Sovereign Bank. (Def. 56.1 Stmt. ¶ 2.) In September 2006, Independence employees were converted to Sovereign employees and became subject to Sovereign's employment policies. ( Id.) On August 18, 2006, plaintiff acknowledged, in writing, that she read and became familiar with Sovereign's policies, including its equal employment opportunity policy, which prohibits discrimination and sets forth a complaint procedure. ( Id. ¶¶ 5, 9-10.)

Among other things, the training materials reviewed by plaintiff set forth Sovereign's policies and procedures regarding its mandatory compliance with the Bank Secrecy Act of 1970 (the “BSA”). ( Id. ¶ 11.) The training materials advised Sovereign employees that the purpose of the BSA is “to monitor and report certain types of transactions ... to aid law enforcement authorities and the Internal Revenue Service in uncovering a multitude of criminal activities.” ( Id.) Sovereign's employees were informed that failure to comply with BSA reporting requirements may expose Sovereign, its directors, officers and employees to civil and criminal penalties. ( See id.)

The training materials also advised employees to monitor and report suspicious activity. ( Id. ¶ 12.) In particular, employees were required to monitor and report financial transactions in excess of $10,000. ( Id.) Moreover, employees were trained to recognize “structuring transactions,” whereby persons seeking to avoid reporting financial transactions in excess of $10,000 structure the financial transaction into multiple smaller transactions below the $10,000 reporting threshold. ( Id.) Employees were advised that it is unlawful to structure or assist in structuring any transaction. ( Id.) Sovereign employees are required to report structuring activity to Sovereign's Loss Prevention and Security (“LP & S”) Department. ( See id. ¶ 15.)

Plaintiff participated in an online training program regarding the BSA and passed an online test regarding the same. ( Id. ¶ 13.) Plaintiff understood that it was her obligation as a teller to “be on the lookout” for suspicious activity and report the same. ( Id.) In addition, plaintiff understood that if a branch manager thought that a teller had engaged in “suspicious activity” the manager had an obligation to report the same to Sovereign's LP & S Department. ( Id. ¶ 15.)

C. Plaintiff's Allegations of National Origin Discrimination

Plaintiff testified that she was discriminated against in October 2006 by having to account for a shortage in the branch's night deposit box. ( See Doc. No. 13, Affirmation of Anthony C. Giordano (“Giordano Aff.”), Ex. 3, Deposition of Faina Vinokur (“Pl. Dep.”) at 99-100; Def. 56.1 Stmt. ¶ 72.) Plaintiff testified that after a bank customer insisted that his deposit had contained $590 more than the amount plaintiff had counted, Ms. Scalici and Ms. Baldassarre instructed plaintiff to record a “short” for the teller box and note her teller identification number (“TIN”). (Pl. Dep. at 100-104.) Plaintiff refused to record her TIN. ( Id. at 102.) Plaintiff acknowledged that Ms. Scalici requested that plaintiff “take the short” because “she was friends with the customer and ... wanted to be good to the customer” and that it had “nothing to do with” plaintiff. ( Id. at 105.) Plaintiff believes that she was discriminated against because “[t]hey [sic] never happened with nobody in our branch.” ( Id. at 104.) Plaintiff testified that she was never disciplined for the “short” or refusing to “take” the short. ( Id. at 103, 109.)

Plaintiff further testified that on more than two occasions, Ms. Baldassarre stood behind her in the teller area while plaintiff spoke in Russian to a Russian customer. (Pl. Dep. at 105-106.) Plaintiff acknowledged that neither Ms. Baldassarre nor Ms. Scalici prohibited plaintiff from speaking in Russian to customers or co-workers. ( Id. at 107, 110.) Plaintiff testified, however, that Pat Walter, a former Head Teller, told her not to speak in Russian with co-workers. ( Id. at 110.)

Plaintiff testified that she heard Pakistani coworkers speak to Pakistani customers and each other in their native language. ( Id. at 109-110.) Plaintiff did not alert branch management nor complain about disparate treatment. ( See id. at 110.)

D. Plaintiff's Work Schedule and Request for Accommodation

According to defendant, the branch required all full-time tellers to work five days per week. (Def. 56.1 Stmt. ¶ 19.) At all relevant times, the branch was open from 9:00 a.m. to 5:00 p.m. on Monday, Tuesday, Wednesday and Friday, 9:00 a.m. to 7:00 p.m. on Thursday, 9:00 a.m. to 1:00 p.m. on Sunday and was closed on Saturday.³ ( Id.; see Pl. 56.1 Stmt. ¶ 19; see also Doc. No. 12, Affirmation of Wendy J. Mellk (“Mellk Aff.”), Ex. H, Affidavit of Karyn Baldassarre (“Baldassarre Aff.”) ¶ 3.) According to defendant, until April 2007, plaintiff was typically scheduled to work Monday through Friday, and worked on Sunday every three to four weeks. (Def. 56.1 Stmt. ¶ 20.) Although plaintiff does not dispute this fact, plaintiff adds that “for a three month period she worked six days a week.” (Pl. 56.1 Stmt. ¶ 20.)

In March 2007, plaintiff's medical worsened and she sought to reduce her weekly schedule from 40 hours to 32 hours. (Pl. Dep. at 177; Def. 56.1 Stmt. ¶ 30.) Accordingly, plaintiff contacted Lisa Wagner, a Sovereign human resources employee located in Pennsylvania with responsibility over retirement benefits. (Def. 56.1 Stmt. ¶ 36; Baldassarre Aff. ¶ 7.) According to plaintiff, Ms. Wagner advised plaintiff that it was possible to work 32 hours per week and remain classified as a full-time employee for benefits purposes. ( See Pl. Dep. at 179-181; Def. 56.1 Stmt. ¶ 36; Pl. 56.1 Stmt. ¶ 36.) Plaintiff testified that Ms. Wager advised her that plaintiff's manager “just have to send to payroll department your scheduled hours.” (Pl. Dep. at 179.)

It is undisputed that Ms. Wagner had no authority over, and did not participate in, branch staffing decisions. (Def. 56.1 Stmt. ¶ 37.) Defendant contends that Ms. Wagner told plaintiff that branch staffing decisions are...