OPINION AND ORDER
Plaintiff Cheryl Mayers, a forty-seven year old African American woman, brings this action against defendants Emigrant Bank, Year 2000 Amended and Restated Severance Pay and Outplacement Program of Emigrant Savings Bank, Janet Martin, Kimberly Romano and Stephanie Nipe (collectively, “Emigrant” or “defendants”) alleging violations of the New York State Human Rights Law (“NYSHRL”), New York City Human Rights Law (“NYCHRL”) and the Employee Retire
Presently before the Court is Emigrant’s summary judgment motion. (Dkt. No. 29: Notice of Motion.) The parties have consented to decision of this case by a Magistrate Judge pursuant to 28 U.S.C. § 636(c). (Dkt. No. 16.) For the reasons set forth below, Emigrant’s summary judgment motion is GRANTED in part and DENIED in part.
FACTS
Mayers started working for Emigrant on November 17, 1986. (Dkt. No. 40: Mayers Dep. at 10-11; Dkt. No. 34: Nipe Aff. Ex. 7: Mayers Aff. ¶ 1; Dkt. No. 35: Defs. Rule 56.1 Stmt. ¶ 1.) Mayers worked as a bank teller for several years before becoming a “telephone representative” at Emigrant’s Manhattan “call center.” (Mayers Aff. ¶¶ 2 — 3; see Mayers Dep. at 10-20; Defs. Rule 56.1 Stmt. ¶¶ 1-2.) Mayers “received a recognition award for Quality Service and Outstanding Achievement in Sales for the first, second, third and fourth quarter in 1993.” (Mayers Aff. ¶4.)
In February 2005, Mayers was promoted to “supervisor” in Emigrant’s Ossining call center. (Mayers Dep. at 22-24, 28-29; Mayers Aff. ¶¶ 3^; Defs. Rule 56.1 Stmt. ¶¶ 2-3.) Mayers “monitorfed]” the work of eight to twelve telephone representatives, 1 was responsible for generating hourly reports, and took customer calls that the telephone representatives “could not handle.” (Mayers Dep. at 25-26, 30-33, 68; Defs. Rule 56.1 Stmt. ¶¶5, 7.) Mayers reported to Richard Palombo and Vito Messina, the Ossining call center’s daytime managers, who in turn reported to call center director Kim Romano. (Mayers Dep. at 24-25; Defs. Rule 56.1 Stmt. ¶ 6.)
Alleged Discriminatory Conduct
The atmosphere at the Ossining call center was “very good” until Palombo began working there in 2006. (Dkt. No. 40: Mayers Dep. at 34-35.) Palombo “was very pushy, he used to use profanity, at one point he verbally abused some of the reps and-physically abused a rep.” (Mayers Dep. at 35, 42.) On one occasion, Palombo “snatched the headset from off a rep and threw it down on her desk” because she was seated at the wrong station. (Mayers Dep. at 35-41.) The representative, Irma Kelly, was pregnant at the time and subsequently “had to go on disability on account of what [Palombo] did to her.” (Mayers Dep. at 37-38, 44.) Mayers told call center director Kim Romano about this incident but nothing was done. (Mayers Dep. at 41-44.) Shortly thereafter, Irma Kelly was fired because she missed a Saturday shift due to a personal emergency. (Mayers Dep. at 44-47.)
On other occasions, Palombo called a female representative a thug (Mayers Dep. at 47-48), sent an “abusive” email to a female representative for being five minutes late (Mayers Dep. at 48-53), told a pregnant female representative who “was having premature labor” to come to Ossining from the Manhattan office (Mayers Dep. at 54-56), and told a pregnant female representative who was on medical leave due to “preeclampsia” that other pregnant
In January 2007, Mayers reprimanded telephone representative Roslyn Johnson 2 for sitting at the wrong work station. (Mayers Dep. at 65.) Johnson put her hand in Mayers’ “face and almost slapped” her, but Mayers “back[ed] off.” (Mayers Dep. at 65-66.) Mayers reported the incident to Palombo, who made Mayers and Johnson apologize to one another. (Mayers Dep. at 65-66, 75-76.) Mayers was unhappy about the way Palombo “handled the situation” and emailed Romano to complain that she “shouldn’t have to apologize to” Johnson. (Mayers Dep. at 65-66, 70-77.) Mayers did not allege in her email that Palombo “was discriminating against [her] in any way.” (Mayers Dep. at 77.) Romano never responded to Mayers’ email. (Mayers Dep. at 65, 76-77.)
On August 14, 2007, Palombo reprimanded Mayers for, inter alia, emailing a report to “the wrong distribution list, which caused major confusion at high levels.” (Dkt. No. 31: Gigante Aff. Ex. 5: Palombo 8/14/07 Memo; Mayers Dep. at 86-89; Mayers Aff. ¶ 5.) On August 30, 2007, Mayers made the same “careless mistake[]” which again “caused tremendous confusion.” (Gigante Aff. Ex. 6: Palombo 8/30/07 Memo; Mayers Dep. at 89-90.) Mayers did not disagree with Palombo’s August 30 criticism of her. (Mayers Dep. at 90.) But after that, Palombo “picked on” Mayers and “criticized] anything that [she did] when it came to the reports.” (Mayers Dep. at 59-61, 63-64.) Mayers felt “singled out” because “[o]ther supervisors ma[d]e mistakes with the report” but if she made “the slightest mistake!, she] would get called in[to] the office.” (Mayers Dep. at 63-64.)
Mayers received a below average performance evaluation in December 2007 stating that she lacked strong “Leadership and Time Management” skills and her work was “rushed and inaccurate.” (Gigante Aff. Ex. 3: 2007 Emp. Eval.; see Mayers Dep. at 62, 82-86; Defs. Rule 56.1 ¶ 8.) Mayers believed that Palombo gave her a poor review in 2007 — and denied her a raise and bonus — because he wanted her to quit. (Mayers Dep. at 62.) Mayers’ 2008 evaluation showed improvement but she was criticized again for “[o]ccasionally submitting] work[ ] with careless mistakes.” (Gigante Aff. Ex. 4: 2008 Emp. Eval.; see Mayers Dep. at 90-92; Defs. Rule 56.1 Stmt. ¶ 8.)
Events Leading to Mayers’ Termination
On Friday, October 17, 2008, Romano called Mayers and other Ossining employees and told them to report to the Manhattan call center the following Monday, but Mayers “didn’t know what it was about.” (Dkt. No. 40: Mayers Dep. at 92-95; Dkt. No. 34: Ñipe Aff. Ex. 7: Mayers Aff. ¶¶ 6-7; Dkt. No. 35: Defs. Rule 56.1 Stmt. ¶ 14.)
On Monday, October 20, 2008, Mayers reported to the Manhattan call center and began her “daily work as usual.” (Mayers Dep. at 95-99.) At approximately 10:30 AM, Mayers and “10 to 11” other Ossining employees were called into Romano’s office and told that security was investigating a “serious matter” that must remain “confidential” and not be discussed with
Fahey asked Mayers to read an anonymous letter addressed to Emigrant’s human resources director, Stephanie Nipe. (Mayers Dep. at 105, 111; Mayers Aff. ¶ 9; Defs. Rule 56.1 Stmt. ¶ 18.) The letter contained numerous complaints about Palombo’s “unprofessional” behavior and threatened to disclose sensitive customer information, or steal customer funds, unless Palombo was fired. (Romano Aff. Ex. 1: Anonymous Ltr; Mayers Dep. at 105-06, 108; Mayers Aff. ¶ 9; Defs. Rule 56.1 Stmt. ¶¶ 9-13.) In particular, the letter complained that Palombo had: (1) threatened to fire a pregnant employee “because she took days off for doctor appointments” (2) “ripp[ed] a headset off’ a female employee because she was seated at the wrong station; (3) “antagonized” Mayers and “unfair[ly]” denied her a bonus in 2006 and 2007; (4) “belittled” a female employee “to the point w[h]ere it affected her heart ailment”; (5) “spoke[] down” to a male employee “as if he were a child”; (6) “unfairly” fired three employees, including one male, for “Time Stealing” even though it was common for call center representatives to “clock in” co-workers who were not actually working; (7) fired “an innocent girl” because another employee used her User ID and password to access a customer account; (8) called a female employee a “disgusting hateful person,” thereby “reducing] her to tears”; and (9) provoked a female employee into submitting a resignation letter and did not let her retract it when she changed her mind. (Anonymous Ltr. at 1-6.) The letter called Palombo a “sociopath” with “no conscience,” a “lazy thinker” with “pathetic managing skills,” who was not a knowledgeable supervisor and was “oblivious to the problems that are arising in the call center that he is supposed to be managing.” (Id.)
Fahey asked Mayers whether “the information in the letter [was] true,” and Mayers said that she believed “the information regarding [Palombo] was right.” (Mayers Dep. at 80-81, 107-09, 111-32, 136-37; Mayers Aff. ¶ 12; Defs. Rule 56.1 Stmt. ¶¶ 18, 19; Fahey Aff. ¶ 4.) Mayers did not, however, agree with the threat to release customer information because she thought that was “wrong.” (Mayers Dep. at 134-37.) Mayers did not elaborate on any of the incidents mentioned in the letter and said that she had “no clue” who wrote it. (Mayers Dep. at 107-10, 137-38; Mayers Aff. ¶ 12; Defs. Rule 56.1 Stmt. ¶¶ 19-20.)
Later that day, Ossining call center representative Nicole Kelly approached Mayers and asked “what took place” during her interview with Fahey. (Mayers Dep. at 145, 201; Mayers Aff. ¶ 13.) Mayers told Kelly that “we are not supposed to discuss” the investigation, and “[w]hen you go downstairs you will find out for yourself.” (Mayers Dep. at 145-46, 201; Mayers Aff. ¶ 13.) Daphne Jean, another Ossining call center representative, also approached Mayers and asked her what she “thought of the letter.” (Mayers Dep. at 196-98; Defs. Rule 56.1 Stmt. ¶ 28.) Mayers told Jean that they were not “supposed to discuss” the letter but did not report the conversation to Romano or Fa-
On October 21, 2008, Romano reminded Mayers “not to discuss the [confidential] investigation” with anyone and “to notify [her or] Mr. Fahey ... if [she] observed any other employees discussing the investigation.” (Mayers Dep. at 149-52; Mayers Aff. ¶ 14; Romano Aff. ¶ 6; Defs. Rule 56.1 Stmt. ¶¶ 24-25.)
On October 22, 2008, Kelly told Mayers that former Ossining employees “Keturah Smith and Irma Kelly keep calling her.” (Mayers Dep. at 149, 153-56; Mayers Aff. ¶ 15; Defs. Rule 56.1 Stmt. ¶¶ 26-27.) Mayers immediately told Romano about the calls 4 and Romano yelled at Kelly “for being friends with Irma and Keturah.” (Mayers Dep. at 153-61, 163, 193-94; Mayers Aff. ¶¶ 16-18.) Later that morning, Mayers was “summoned” to personnel where she met with Romano, Ñipe and Emigrant consultant Janet Martin. (Mayers Dep. at 158, 164-68; Mayers Aff. ¶ 19; Defs. Rule 56.1 Stmt. ¶ 30; Romano Aff. ¶ 8.) Martin told Mayers that she was being fired, effective immediately, because she “failed to live up to her managerial responsibilities” and because she “withheld evidence.” (Mayers Dep. at 168-70, 173-74, 210-11; Mayers Aff. ¶ 19; Defs. Rule 56.1 Stmt. ¶ 31; Romano Aff. ¶ 8.) As Mayers got up to leave, Martin added: “and by the way[,] you will not be receiving a severance.” (Mayers Dep. at 169, 174-75; Mayers Aff. ¶ 20.) Mayers was escorted out of the building by security. (Mayers Dep. at 170-72; Mayers Aff. ¶ 20.)
Mayers later discovered that Kelly and Ossining call center supervisor Asha Rattan also were fired and that they also had told Fahey that they agreed with the anonymous letter. (Mayers Dep. at 166-67, 171-73, 195-96; cf. Defs. Rule 56.1 Stmt. ¶ 32.) 5 Mayers concluded that she was fired because she “spoke up” and “told the truth” about Palombo. (Mayers Dep. at 80-81, 166-67, 194-95, 234; Defs. Rule 56.1Stmt. ¶ 33.) Mayers also speculated that her firing might be connected to her age, sex or race (Mayers Dep. at 80-82), but admitted that she never “complain[ed] to anyone while [she] was employed at Emigrant about discrimination, retaliation and/or unfair treatment.” (Mayers Dep. at 109, 234; Defs. Rule 56.1 Stmt. ¶ 22.) Moreover, although Mayers did not think that by “agreeing with th[e] letter [she was] making a complaint about age, race, sex, gender or any other related discrimination against” her, she nonetheless believed the letter constituted a complaint of gender discrimination “[b]ecause the majority of the names that were mentioned” were female. (Mayers Dep. at 109-10; Defs. Rule 56.1 Stmt. ¶ 21.)
Mayers’ Claim for Severance Benefits Under Emigrant’s Severance Plan
On November 5, 2008, Mayers submitted a claim for severance benefits seeking $29,914.82 (26 weeks pay) under Emi
discussed confidential details about the investigation with her subordinates (Nicole Kelly-Satchell & Daphne Jean).... [and] failed to make Kim [Romano] or Tom [Fahey] aware that employees under her supervision were discussing confidential information i.e. Nicole KellySatchell disclosed confidential information via telephone and text messaging to ex-employees.
(Nipe Aff. Ex. 6: Romano 12/1/08 Memo.) Based on the investigation, Nipe and the “Committee of Fiduciaries” determined that Emigrant “had a good faith basis for terminating Ms. Mayers for cause due to her failure to comply with an express mandate from Kimberly Romano not to discuss or disclose any matters involving Emigrant’s investigation of the anonymous letter.” (Nipe Aff. ¶¶ 5 — 7; Defs. Rule 56.1 Stmt. ¶¶ 37-38.)
On December 5, 2008, Emigrant issued a letter denying Mayers’ application for severance benefits. (Defs. Rule 56.1 Stmt. ¶ 38; Nipe Aff. ¶ 6 & Ex. 4: Nipe 12/5/08 Ltr.; see Mayers Dep. at 203-04.) The letter explained that Mayers was not eligible for severance benefits because her “actions rose to the level of ‘willful misconduct’ and therefore she was terminated for Cause within the meaning of the Program.” (Nipe 12/5/08 Ltr. at 1; Defs. Rule 56.1 Stmt. ¶ 38; Nipe Aff. ¶ 7; see Mayers Dep. at 204-05.)
On January 23, 2009, Mayers requested copies of the documents relied upon by Emigrant in denying her severance benefits. (Defs. Rule 56.1 Stmt. ¶ 40; Nipe Aff. ¶ 8 & Ex. 5: Dagg 1/23/09 Ltr.; see Mayers Dep. at 206-07.) On January 27, 2009, Nipe provided Mayers with: (1) a copy of Romano’s December 1, 2008 memorandum; and (2) emails between Nipe and members of Emigrant’s Committee of Fiduciaries approving the denial of severance benefits. (Defs. Rule 56.1 Stmt. ¶ 40; Nipe Aff. ¶ 8 & Ex. 6: Nipe 1/27/08 Ltr. & Enes.; ■ see Mayers Dep. at 206-08.)
On February 2, 2009, Mayers appealed the denial of her severance benefits claim and submitted an affidavit explaining her view of the events leading to her termination. (Defs. Rule 56.1 Stmt. ¶ 41; Nipe
ANALYSIS
I. SUMMARY JUDGMENT STANDARD
Rule 56(c) of the Federal Rules of Civil Procedure provides that summary “judgment should be rendered if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c);
see also, e.g., Celotex Corp. v. Catrett,
The burden of showing that no genuine factual dispute exists rests on the party seeking summary judgment.
See, e.g., Adickes v. S.H. Kress & Co.,
To defeat a summary judgment motion, the non-moving party must do “more than simply show that there is some metaphysical doubt as to the material facts.”
Matsushita Elec. Indus. Co. v. Zenith Radio Corp.,
In evaluating the record to determine whether there is a genuine issue as to any material fact, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.”
Anderson v. Liberty Lobby, Inc.,
In considering a motion for summary judgment, the Court is not to resolve contested issues of fact, but rather is to determine whether there exists any disputed
A. Additional Summary Judgment Standards in Employment Discrimination Cases
When a case turns on the intent of one party, as employment discrimination claims often do, a “trial court must be cautious about granting summary judgment.”
Gallo v. Prudential Residential Servs., Ltd. P’ship,
In other words, to defeat summary judgment, “the plaintiffs admissible evidence must show circumstances that would be sufficient to permit a rational finder of fact to infer that the defendant’s employment decision was more likely than not based in whole or in part on discrimination.” Ste
rn v. Trs. of Columbia Univ.,
II. EMIGRANT IS ENTITLED TO SUMMARY JUDGMENT ON MAYERS’ NYSHRL AND NYCHRL RETALIATION CLAIMS
A. Legal Standards Governing Employment Retaliation Claims
“Under both the State and City Human Rights Laws, it is unlawful to retaliate against an employee for opposing discriminatory practices.”
Forrest v. Jewish Guild for the Blind,
Retaliation claims brought pursuant to the NYSHRL and the NYCHRL are analyzed using the three-step, burden-shifting framework established by the Supreme Court in
McDonnell Douglas Corp. v. Green,
Establishment of a prima facie case gives rise to a rebuttable presumption of unlawful retaliation.
See, e.g., El Sayed v. Hilton Hotels Corp.,
If the defendant articulates a non-retaliatory rationale for its employment decision, the burden shifts back to the plaintiff to show that the defendant’s proffered explanation is a pretext for unlawful retaliation.
See, e.g., Kaytor v. Elec. Boat Corp.,
At this stage of the inquiry, merely disproving the defendant’s legitimate explanation is insufficient; the plaintiff must produce competent evidence that “the employer’s decision was motivated, at least in part, by an intent to retaliate against him.”
El Sayed v. Hilton Hotels Corp.,
“A plaintiff may prove that retaliation was a ‘substantial’ or ‘motivating’ factor behind an adverse employment action either ‘(1) indirectly, by showing that the protected activity was followed closely by discriminatory treatment, or through other circumstantial evidence such as disparate treatment of fellow employees who engaged in similar conduct; or (2) directly, through evidence of retaliatory animus directed against the plaintiff by defendant.’ ”
Raniola v. Bratton,
An employee engages in a protected activity when she complains of an employment practice that she reasonably believes violates the law.
E.g., Cruz v. Coach Stores, Inc.,
Here, Mayers alleges that by “agree[ing] with the statements contained in the [anonymous] letter,” she made “a formal complaint to Emigrant’s Vice President of Security about disparate mistreatment and harassment.” (Dkt. No. 1: Compl. ¶¶ 32-33, 45.) Even assuming that Mayers possessed a good-faith belief that the “letter itself ... was making a complaint of race, age [or] genderf ] discrimination” (Dkt. No. 40: Mayers Dep. at 109-10; see page 8 above), her retaliation claim fails because she never said as much to anyone at Emigrant (see pages 8-9 above) and the letter is not susceptible to such an interpretation.
The essence of the letter is that Palombo was an incompetent and nasty manager who treated employees badly.
(See
pages 5-6 above.) The letter did not state or imply that Palombo mistreated call center employees because of their race, gender, age or other protected characteristic.
(See
page 6 above.) The letter did not refer to or in any way declare the race or age of any employee. Mayers conceded at her deposition that she did not think that by “agreeing with th[e] letter [she was] making a complaint about age, race, sex, gender or any other related discrimination against” her.
(See
page 8 above.) She did, however, believe the letter complained of gender discrimination “[b]ecause the majority of the names that were mentioned” in the letter were female.
(See
pages 8-9 above.) While Mayers is correct that most of the incidents referenced in the letter concern Palombo’s callous treatment of female employees, at least two of Palombo’s sixteen “vietim[s],” or approximately 12.5%, were male.
(See
page 6 above; Dkt. No. 32: Romano Aff. Ex. A: Anonymous Ltr. at 6.) Given that under ten percent of the Ossining telephone representatives were male
(see
page 2 n. 1 above), the percentage of incidents involving female employees is more than proportionate to their percentage in the Ossining call center. Thus, while Mayers’ agreement with the complaints in the anonymous letter clearly conveyed her belief that Palombo was an incompetent and nasty supervisor, the letter did not put Emigrant on notice that Mayers was complaining of discrimination based on gender (or any other protected class).
See, e.g., McDowell v. T-Mobile USA, Inc.,
Because a reasonable employer would not have understood that Mayers was making a complaint of unlawful discrimination when she told Fahey that she agreed with the contents of the anonymous letter, Mayers has not established a prima facie case of retaliation. Emigrant’s motion for summary judgment dismissing Mayers’ NYSHRL and NYCHRL 22 retaliation claims is GRANTED.
A. Standard of Review in ERISA Cases
ERISA section 502(a) permits the beneficiary of an employment benefit plan to bring a civil action “to recover benefits due to him under thp terms of his plan.” 29 U.S.C. § 1132(a)(1)(B). “To prevail under § 502, a plaintiff must show that (1) the plan is covered by ERISA, (2) plaintiff is a participant or beneficiary of the plan, and (3) plaintiff was wrongfully denied severance pay owed under the plan.”
Giordano v. Thomson,
“[A] denial of benefits challenged under [section 502(a)] is to be reviewed under a
de novo
standard unless the benefit plan gives the administrator or fiduciary discretionary authority to determine eligibility for benefits or to construe the terms of the plan.”
Firestone Tire & Rubber Co. v. Bruch,
Under the arbitrary and capricious standard, the “scope of review is narrow,” and the Court “may overturn a decision to deny benefits only if it was ‘without reason, unsupported by substantial evidence or erroneous as a matter of law.’ ”
Pagan v. NYNEX Pension Plan,
In cases where the plan administrator both evaluates and pays benefits claims, a conflict of interest exists:
In such a circumstance, “every dollar provided in benefits is a dollar spent by ... the employer; and every dollar saved ... is a dollar in [the employer’s] pocket.” The employer’s fiduciary interest may counsel in favor of granting a borderline claim while its immediate financial interest counsels to the contrary. Thus, the employer has an “interest ... conflicting with that of the beneficiaries,” the type of conflict that judges must take into account when they review the discretionary acts of a trustee of a common-law trust.
Metro. Life Ins. Co. v. Glenn,
Such a conflict “must be weighed as a ‘facto[r] in determining whether there is an abuse of discretion,’ ” but does not change the standard of review from deferential to
de novo. Firestone Tire & Rubber Co. v. Bruch,
The weight a Court assigns to a conflict of interest “depends on the circumstances” and “varies in direct proportion to the ‘likelihood that [the conflict] affected the benefits decision.’ ”
Durakovic v. Bldg. Serv. 32 BJ Pension Fund,
ERISA Section 503(2) “requires that claims for benefits be afforded a ‘full and
B. Emigrant’s Denial of Mayers’ Severance Beneñts Claim Was Arbitrary And Capricious, And Not The Result of a Full And Fair Review
Mayers alleges that she was wrongly denied severance benefits because “the determination of [ ] Emigrant ... to fire [her] for cause was pretextual, and [she] was thus not disqualified from receiving the benefits under the Plan.” (Dkt. No. 1: Compl. ¶ 77; see Compl. ¶¶ 56-60.) Mayers also alleges that Emigrant did not conduct a “full and fair review” of her severance pay claim. (Compl. ¶¶ 62-66, 84-87.)
It is undisputed that Emigrant’s benefit plan is covered by ERISA and that Mayers was a beneficiary of the plan. {See Dkt. No. 1: Compl. ¶¶9-11, 48, 69, 75; Dkt. No. 30: Emigrant Br. at 16-18; Dkt. No. 34: Nipe Aff. Ex. 2: Summary Plan Description at 16-17.) Thus, the only issue before the Court is whether Mayers was “wrongfully denied severance pay owed under the plan.” {See cases cited on page 25 above.) Because Emigrant’s benefits plan grants discretion to the plan administrator to determine eligibility for severance benefits {see page 9 n. 7 above; Nipe Aff. Ex. 1: Year 2000 Severance Pay & Outplacement Program §§ 9-12), Emigrant’s determination that Mayers is not entitled to severance benefits is examined under the arbitrary and capricious standard of review, and must be upheld if it is supported by “substantial evidence.” {See cases cited on page 26 above.)
Following Mayers’ initial claim submission, Nipe reviewed Romano’s December 1, 2008 memorandum and “spoke with” certain unnamed individuals (presumably Romano and Fahey) “responsible for the investigation of the anonymous letter.” (Nipe Aff. ¶ 5;
see
page 9 above.) Based entirely on Romano’s allegation that Mayers had discussed “confidential information” with “her subordinates,” the Fiduciary Committee determined that Mayers properly was fired “for cause.” (Nipe Aff. Ex. 6: Nipe 1/27/09 Ltr.;
see
pages 9-10 above.) Thereafter, Mayers submitted to Nipe an appeal letter and affidavit asserting that she did not violate Romano’s directives. (Nipe Aff. Ex. 7: Dagg 2/2/09 Ltr.
&
Mayer Aff.;
see
page 10 above.) In particular, Mayers swore that she consistently refrained from discussing the investigation with others and told her subordinates to do the same. (Nipe Aff. Ex. 7: Mayer Aff. ¶¶ 13, 15, 24;
see
pages 4, 10 above.) More importantly, Mayers stated
Although the Fiduciary Committee’s determination that Mayers was terminated “for cause” (and therefore ineligible for severance benefits) is supported by some evidence, ie., Romano’s December 1, 2008 memorandum, its decision was based on a superficial investigation of the facts and did not take into account evidence that Mayers had complied with Romano’s directives. Importantly, Romano’s December 1, 2008 memorandum does not explain how Mayers’ alleged infractions were “brought to Kim’s [Romano’s] attention,” or what about the investigation Mayers allegedly discussed with her subordinates 26 (Nipe Aff. Ex. 6: Romano Memo.; see pages 9-10 above.) Absent such information, the Fiduciary Committee’s determination that Mayers disregarded Romano’s directives is arbitrary and capricious. It is possible, for example, as Mayers alleges, that she merely told Kelly not to discuss the investigation and to report any such discussions to Romano.
Moreover, despite Mayers’ conflicting account, the Fiduciary Committee accepted Romano’s threadbare allegations without further investigation. In light of the protestations of innocence by Mayers — a 20 plus year Emigrant employee — a reasonable fiduciary would have conducted a more thorough investigation, including, for instance, asking Romano what Mayers allegedly told Kelly, how Romano learned of that discussion and whether Mayers informed Romano that Kelly had been contacted by former Emigrant employees.
See Mohamed v. Sanofi-Aventis Pharm.,
06 Civ. 1504,
The fact that Emigrant both evaluates and pays employee benefits claims also weighs against granting summary judgment to Emigrant.
{See
cases cited at pages 27-28 above.) The conflict of interest inherent in such situations is amplified
Finally, although Nipe’s May 19, 2009 letter denying severance pay states that Mayers’ appeal had been “reviewed by the Fiduciary Committee” (Nipe Aff. Ex. 8: Nipe 5/19/09 Ltr.), Nipe’s affidavit merely states that after “reviewing [Mayers’] appeal and the affidavit submitted in connection” therewith, Nipe issued a letter denying Mayers appeal (Nipe Aff. ¶ 10). Accordingly, there is ambiguity whether anyone on the Fiduciary Committee, other than Nipe, considered Mayers’ affidavit, and thus whether Mayers’ right to a “full and fair review” was violated.
See
cases and regulations cited at pages 28-29 above,
see also, e.g., Mohamed v. Sanofi-Aventis Pharm.,
Because Emigrant did not adequately investigate the events precipitating Mayers termination, the Fiduciary Committee did not have sufficient information to make an informed decision that Mayers was fired “for cause.” It also is unclear whether Nipe summarily denied Mayers’ appeal without circulating to the Fiduciary Committee evidence that Mayers complied with Romano’s directives. Given Emigrant’s dual role as payor and evaluator of Mayers’ severance pay claim, and Nipe’s more palpable conflict due to her active role in Mayers’ termination, the denial of Mayers’ claim on such insubstantial evidence is questionable. Accordingly, the Court finds that Emigrant’s denial of Mayers’ severance pay claim was arbitrary and capricious and Emigrant’s summary judgment motion on this claim therefore is DENIED.
C. The Appropriate Relief is a Remand to the Emigrant Fiduciary Committee
Although Emigrant’s denial of Mayers’ claim was arbitrary and capricious, and done without a full and fair review, the administrative record is insufficient to determine whether Mayers was terminated “for cause.” Only after a more thorough investigation of the allegations raised in Mayers’ affidavit will such a determination be possible. The appropriate remedy, however, is not to schedule a trial date but rather is to remand the case to Emigrant’s Fiduciary Committee “with instructions to consider additional evidence.”
27
Miller v. United Welfare Fund,
Accordingly, Emigrant’s denial of Mayers’ severance pay claim is vacated and the matter is remanded to the Plan Administrator for further consideration in a manner consistent with this opinion.
IV. MAYERS’ ERISA DISCRIMINATION CLAIM IS MERITLESS
ERISA Section 510 makes it “unlawful for any person to discharge, fine, suspend, expel, discipline, or discriminate against a participant or beneficiary [of an employee benefit plan] ... for the purpose of interfering with the attainment of any right to which such participant may become entitled under the plan.” 29 U.S.C.A. § 1140.
29
“This prohibition includes characterizing an employee’s termination as one ‘for cause’ for the purpose of unlawfully denying that employee severance benefits.”
Madera v. Marsh USA, Inc.,
“An essential element of plaintiffs proof under the statute
[i.e.,
§ 510] is to
Mayers alleges that Emigrant’s stated grounds for her “for cause” termination were prétextual and done to avoid paying her severance benefits. (Dkt. No. 1: Compl. ¶¶ 70-72.) Emigrant asserts that Mayers was fired because she “fail[ed] to comply with an express mandate from Kimberly Romano not to discuss or disclose any matters involving Emigrant’s investigation of the anonymous letter.”
(See
page 10 above.) Mayers concedes that if employees “engaged in a discussion with co-workers about the investigation in violation of Ms. Romano’s order not to do that,” Emigrant could legitimately terminate their employment “for cause.” (Dkt. No. 40: Mayers Dep. at 192-93.) Mayers has the burden to demonstrate that Emigrant’s “ ‘proffered explanation is unworthy of credence’ ” and that intent to interfere with her severance benefits was a substantial reason behind Emigrant’s characterizing her discharge as one “for cause.”
E.g., Dister v. Cont’l Grp., Inc.,
Mayers contends that Emigrant’s intent to interfere with her attainment of bene
Because Mayers has adduced no evidence that deprivation of her severance pay was a motivating factor behind, rather than merely a consequence of, Emigrant’s decision to fire her “for cause,” Emigrant’s summary judgment motion on Mayers’ ERISA § 510 discrimination claim is GRANTED.
CONCLUSION
For the reasons set forth above, Emigrant’s summary judgment motion (Dkt. No. 29) is GRANTED as to Mayers’ NYSHRL and NYCHRL retaliation claims and ERISA § 510 discrimination claim, and is DENIED as to Mayers’ ERISA § 502 wrongful denial of benefits claim. Emigrant’s denial of Mayers’ severance pay claim is VACATED and this matter is REMANDED to the plan administrator for further proceedings. The Clerk of Court is directed to close this case.
SO ORDERED.
Notes
. In all, there were "[a]bout 50" telephone representatives at the Ossining call center, "four or five” of whom were males. (Mayers Dep. at 32, 67; Defs. Rule 56.1 Stmt. ¶ 5.)
. Like Mayers, Johnson is an African American woman. (Mayers Dep. at 77-78.)
. Jean also told Mayers that she had spoken to an ex-employee named Tina. (Mayers Dep. at 216-22.) Mayers told Jean to tell Romano about the call but did not report it herself because it "had nothing to do with what was going on”; Tina just called Jean to “say hi.” (Mayers Dep. at 216-22; see Defs. Rule 56.1 Stmt. ¶ 29.)
. According to Romano, she personally "observed” Mayers and Kelly "discussing the investigation.” (Romano Aff. ¶ 7.) Romano notified Emigrant management (Janet Martin) that Mayers and Kelly "failed to comply with the mandate prohibiting their discussion of the investigation.” (Romano Aff. ¶ 7; Defs. Rule 56.1 Stmt. ¶ 30.)
.Ossining call center representative Marla Darby also “agreed with the contents of the letter concerning Mr. Palombo.... [but] was not terminated following her participation in the investigation.” (Defs. Rule 56.1 Stmt. ¶ 23; Romano Aff. ¶ 10; Fahey Aff. ¶ 4.)
. According to the Plan, ''Employee[s] with 20' or more years of Service” who are not terminated "for Cause” are entitled to 26 weeks of severance pay. (Dkt. No. 34: Nipe Aff. Ex. 1: Year 2000 Severance Pay & Outplacement Program § 2(a)(i)(A).) An employee is terminated "for Cause” where: (1) she "continually] neglect[s] ... to perform [her] duties” after notice or (2) engages in “dishonesty or willful misconduct.” (Year 2000 Severance Pay & Outplacement Program § 1(d).)
. Emigrant's “Committee of Fiduciaries” is the "Program Administrator” and is responsible for “reviewing] and dispos[ing]” of all claims, and deciding "any question arising in connection with the Program,” including whether or not an employee was terminated "for Cause.” (Year 2000 Severance Pay & Outplacement Program §§ l(n), 9(e)-(f); see Nipe Aff. Ex. 2: Summary Plan Description at 13.)
.
See also, e.g., Peingold v. N.Y.,
.
Accord, e.g., Feingold v. N.Y.,
.
See also, e.g., Budde v. H & K Distrib. Co.,
.
Accord, e.g., Bennett v. Verizon Wireless,
. See also, e.g., Fleming v. MaxMara USA, Inc.,
.
See also, e.g., Ibok v. Sec. Indus. Automation Corp.
.
Accord, e.g., Deshpande v. Medisys Health Network, Inc.,
.
Accord, e.g., Bowles v. N.Y.C. Transit Auth.,
.
Accord, e.g., El Sayed v. Hilton Hotels Corp.,
.
Accord, e.g., Pellegrini v. Sovereign Hotels, Inc.,
.
See, e.g., Gorzynski v. LetBlue Airways Corp.,
.
See also, e.g., Kessler v. Westchester Cnty. Dep’t of Soc. Servs.,
.
Accord, e.g., Wimes v. Health,
.
See also, e.g., James v. Newsweek, Inc.,
No. 99-9280,
. The Local Civil Rights Restoration Act of 2005, N.Y.C. Local Law No. 85 (2005), requires that a NYCHRL claim be evaluated under a more liberal approach and separately from its state and federal counterparts.
E.g., Melie v. EVCI/TCI College Admin.,
.
Accord, e.g., Hobson v. Metro. Life Ins. Co.,
.
Accord, e.g., Durakovic v. Bldg. Serv. 32 BJ Pension Fund,
.
Accord, e.g., Durakovic v. Bldg. Serv. 32 BJ Pension Fund,
. Romano’s affidavit in support of Emigrant’s summary judgment motion alleges that Romano personally "observed” Mayers discussing the investigation with Kelly, which is contrary to what is in Romano’s memo that Nipe relied upon; in any event Romano’s affidavit fails to specify what about the investigation Mayers and Kelly allegedly discussed. (See Diet. No. 32: Romano Aff. ¶ 7.)
. On remand, Emigrant also should take appropriate steps to reduce potential bias. In particular, Emigrant should select claims administrators who, unlike Nipe, had no direct involvement in Mayers' discharge and who can impartially evaluate Mayers' claim. The
.
See also, e.g., Winkler v. Metro. Life Ins. Co.,
. "Section 510 was designed primarily to prevent 'unscrupulous employers from discharging or harassing their employees in order to keep them from obtaining vested pension rights.’ ”
Dister v. Cont’l Group, Inc.,
.Because the denial of severance pay necessarily presupposes an employee's discharge, such claims properly are analyzed under section 510's discrimination clause.
See Furcini v. Equibank, NA,