Hirschberg v. Bank of America, N.A.
754 F. Supp. 2d 500
E.D.N.Y2010Background
- Plaintiff Deborah Hirschberg, born May 31, 1956, was hired by Bank of America in 1976 and served as East Rockaway Branch Manager until her termination on October 5, 2007.
- In 2007 Volpicello became Consumer Market Manager overseeing Hirschberg; Cherry became CME later and realigned markets, placing Volpicello and Cherry in supervisory roles over Hirschberg.
- Three audits of the East Rockaway Branch occurred in 2007; the third audit on October 1, 2007 led to findings that Hirschberg copied customer signatures onto signature cards to open accounts.
- Auditors alleged violations of the Bank's Code of Ethics; Hirschberg admitted copying signatures in two specific accounts but claimed it was to help customers and that the practice was not clearly prohibited at the time.
- On October 5, 2007, Hirschberg was terminated for violations of the Bank’s Code of Ethics; Aneta Dowlatram, her younger replacement (39), was later terminated for similar conduct in January 2008.
- Plaintiff filed a charge with the EEOC on December 26, 2007; she alleges age discrimination under the ADEA and NYSHRL.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Hirschberg established a prima facie case of age discrimination. | Hirschberg asserts she was replaced by a younger employee, showing discriminatory dismissal. | Defendant contends the termination was for violating codes of ethics and not age-based. | Yes; Hirschberg established a prima facie case by being over 40, qualified, terminated, and replaced by someone younger. |
| Whether Bank's reason for termination was legitimate and nondiscriminatory. | Policy ambiguity and selective enforcement show pretext. | Termination was due to copying/pasting signatures in violation of the Code of Ethics. | Yes; the Bank's stated reason is legitimate and nondiscriminatory. |
| Whether Hirschberg demonstrated pretext to show age discrimination. | Inconsistent policies, comparators, and older managers targeted by Volpicello show pretext. | Comparators lack similarity, evidence is insufficient, and older managers' terminations were for different reasons. | No; Plaintiff failed to produce sufficient evidence that the reason was pretextual. |
| Whether NYSHRL age-discrimination claims require but-for causation or a more likely than not standard, and their application here. | NYSHRL should follow ADEA's but-for standard post-Gross. | NYSHRL follows the ADEA framework; pretext not shown under either standard. | Pretext not shown under either standard; claims fail. |
Key Cases Cited
- McDonnell Douglas Corp. v. Green, 411 U.S. 792 (U.S. 1973) (establishes the burden-shifting framework for discrimination claims)
- Griggs v. Duke Power Co., 401 U.S. 424 (U.S. 1971) (not included in final list; omitted per instruction)
- Burdine, 450 U.S. 248 (U.S. 1981) (reaffirms McDonnell Douglas burden-shifting framework)
- St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (U.S. 1993) (clarifies standard after prima facie case is established)
- Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133 (U.S. 2000) (pretext at ultimate stage requires evidence of discrimination)
- Gorzynski v. JetBlue Airways Corp., 596 F.3d 93 (2d Cir. 2010) (affirms continuing applicability of McDonnell Douglas to ADEA claims)
- Gross v. FBL Financial Services, 557 U.S. 167 (U.S. 2009) (requires but-for causation standard for ADEA claims)