ANDREW J. PECK, United States Magistrate Judge:
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 Retirement
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.
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. ¶¶ 3-4; Defs. Rule 56.1 Stmt. ¶¶ 2-3.) Mayers "monitor[ed]" the work of eight to twelve telephone representatives,
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
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 "criticiz[ed] 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 submit[ing] work[] with careless mistakes." (Gigante Aff. Ex. 4: 2008 Emp. Eval.; see Mayers Dep. at 90-92; Defs. Rule 56.1 Stmt. ¶ 8.)
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: Nipe 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 "reduc[ing] 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 Fahey.
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
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.)
On November 5, 2008, Mayers submitted a claim for severance benefits seeking $29,914.82 (26 weeks pay) under Emigrant's
(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. & Encs.; 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
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, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10, 91 L.Ed.2d 202 (1986); Lang v. Ret. Living Pub. Co., 949 F.2d 576, 580 (2d Cir.1991).
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., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970); Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 36 (2d Cir.1994); Gallo v. Prudential Residential Servs., Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir.1994). The movant may discharge this burden by demonstrating to the Court that there is an absence of evidence to support the non-moving party's case on an issue on which the non-movant has the burden of proof. See, e.g., Celotex Corp. v. Catrett, 477 U.S. at 323, 106 S.Ct. at 2552-53.
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., 475 U.S. 574, 586, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986). Instead, the non-moving party must "set out specific facts showing a genuine issue for trial." Fed.R.Civ.P. 56(e); accord, e.g., Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. at 587, 106 S.Ct. at 1356; Weinstock v. Columbia Univ., 224 F.3d 33, 41 (2d Cir.2000) (At summary judgment, "[t]he time has come ... `to put up or shut up.'" (citations omitted)), cert. denied, 540 U.S. 811, 124 S.Ct. 53, 157 L.Ed.2d 24 (2003).
In evaluating the record to determine whether there is a genuine issue as to any material fact, "[t]he evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. at 255, 106 S.Ct. at 2513.
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
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, 22 F.3d 1219, 1224 (2d Cir.1994).
In other words, to defeat summary judgment, "the plaintiff's 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." Stern v. Trs. of Columbia Univ., 131 F.3d at 312; see, e.g., Schnabel v. Abramson, 232 F.3d 83, 90-91 (2d Cir.2000); Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir.2000) (The question on summary judgment is "whether the evidence, taken as a whole, supports a sufficient rational inference of discrimination. To get to the jury, it is not enough ... to disbelieve the employer; the factfinder must also believe the plaintiff's explanation of intentional discrimination." (quotations & alterations omitted)), cert. denied, 540 U.S. 811,
"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, 3 N.Y.3d 295, 312-13, 786 N.Y.S.2d 382, 396, 819 N.E.2d 998 (2004); see N.Y. Exec. Law § 296(7); N.Y. City Admin. Code §§ 8-107(7).
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, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See, e.g., Borski v. Staten Island Rapid Transit, No. 09-4916-cv, 413 Fed.Appx. 409, 410 (2d Cir. 2011) ("We analyze both federal and state law retaliation claims under the familiar burden-shifting approach of McDonnell Douglas Corp. v. Green."); Vito v. Bausch & Lomb Inc., 403 Fed.Appx. 593, 597 (2d Cir.2010) ("`Claims for retaliation [under NYSHRL] are analyzed under the same burden-shifting framework established for Title VII cases.'"); Stavis v. GFK Holding, Inc., 769 F.Supp.2d 330, 339 (S.D.N.Y. 2011) ("Retaliation claims arising under the NYSHRL and the NYCHRL are also analyzed using the McDonnell Douglas framework."); Hall v. Parker Hannifan Corp., ___ F.Supp.2d ___, ___, No. 08-CV-6033, 2009 WL 4406145 at *2 (W.D.N.Y. Nov. 30, 2009) (Retaliation claims under the NYSHRL are generally analyzed using the Title VII McDonnell Douglas burden-shifting framework.); Kemp v. Metro-North R.R., 04 Civ. 9926, 2007 WL 1741256 at *16 (S.D.N.Y. June 14, 2007) ("When evaluating claims of retaliation under the ... NYSHRL, and NYCHRL, courts use the well-known McDonnell Douglas burden-shifting framework."), aff'd, 316 Fed.Appx. 25 (2d Cir.2009).
Establishment of a prima facie case gives rise to a rebuttable presumption of unlawful retaliation. See, e.g., El Sayed v. Hilton Hotels Corp., 627 F.3d 931, 932 (2d Cir.2010) ("[T]he prima facie case establishes only a rebuttable presumption of retaliation."); Hicks v. Baines, 593 F.3d at 164 ("If the plaintiff sustains this initial burden, `a presumption of retaliation arises.'"); Jute v. Hamilton Sundstrand Corp., 420 F.3d at 173 (same).
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., 609 F.3d at 553 (If the employer produces a "legitimate non-retaliatory reason for the adverse employment action.... the employee must, in order to avoid summary judgment, point to evidence sufficient to permit an inference that the employer's proffered non-retaliatory reason is pretextual and that retaliation was a `substantial reason for the adverse employment action.'"); Hicks v. Baines, 593 F.3d at 164 (If the employer offers a non-retaliatory explanation for its conduct, "`the presumption of retaliation dissipates and the employee must show that retaliation was a substantial reason for the adverse employment action.'"); Jute v. Hamilton Sundstrand Corp. 420 F.3d at 173 (same); Raniola v. Bratton, 243 F.3d at 625 (same).
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., 627 F.3d at 933; see, e.g., Ibok v. Sec. Indus. Automation, 369 Fed.Appx. at 213; Hicks v. Baines, 593 F.3d at 164 (A plaintiff sufficiently demonstrates pretext if he shows that "`a retaliatory motive played a part in the adverse employment actions even if it was not the sole cause.'"); Raniola v. Bratton, 243 F.3d at 625 ("A retaliatory motive must be ... at least a substantial or motivating factor behind the adverse action." (quotations omitted)).
"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, 243 F.3d at 625.
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., 202 F.3d 560, 566 (2d Cir.2000) ("The term `protected activity' refers to action taken to protest or oppose statutorily prohibited discrimination.").
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] gender[] 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 "victim[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., 307 Fed.Appx. 531, 534 (2d Cir.2009) (Where plaintiff "never explicitly complained about racial discrimination ... plaintiff's supervisors could [not] have understood that plaintiff's complaints about a paperwork delay and a co-worker's career were about race."); Galdieri-Ambrosini v. Nat'l Realty & Dev. Corp., 136 F.3d at 292 (No retaliation claim where plaintiffs complaint "in no way intimated that she believed [her supervisor's] conduct to be influenced by her gender," and therefore did not "suggest[] any complaint of gender discrimination."); Rommage v. MTA Long Island R.R., 2010 WL 4038754 at *14 ("The mere fact that the person or people `making the complaints [were] African American will not convert an ordinary complaint into a complaint of racial discrimination sufficient
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
ERISA section 502(a) permits the beneficiary of an employment benefit plan to bring a civil action "to recover benefits due to him under the 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, 564 F.3d 163, 168 (2d Cir.2009) (citations omitted); accord, e.g., Dickerson v. United Way of N.Y.C., 351 Fed.Appx. 506, 507 (2d Cir.2009), cert. denied, ___ U.S. ___, 131 S.Ct. 105, 178 L.Ed.2d 247 (2010); Nyame v. Bronx Lebanon Hosp. Ctr., 08 Civ. 9656, 2010 WL 1379794 at *6 (S.D.N.Y. Mar. 31, 2010).
"[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, 489 U.S. 101, 115, 109 S.Ct. 948, 956-57 (1989).
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, 52 F.3d 438, 442 (2d Cir.1995); accord, e.g., Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d at 141; Pepe v. Newspaper & Mail Deliveries'-Publishers' Pension Fund, 559 F.3d at 146-47; McCauley v. First Unum Life Ins. Co., 551 F.3d at 132; Krauss v. Oxford Health Plans, Inc., 517 F.3d at 623; Suarato v. Bldg. Serv. 32BJ Pension Fund, 554 F.Supp.2d 399, 416 (S.D.N.Y.2008) (Peck, M.J.) (citing cases). "`Substantial evidence is such evidence that a reasonable mind might accept as adequate to support the conclusion reached by the administrator and requires more than a scintilla but less than a preponderance.'" Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d at 141 (quoting Celardo v. GNY Auto. Dealers Health & Welfare Trust, 318 F.3d 142, 146 (2d Cir.2003)); accord, e.g., Miller v. United Welfare Fund, 72 F.3d 1066, 1072 (2d Cir.1995).
In cases where the plan administrator both evaluates and pays benefits claims, a conflict of interest exists:
Metro. Life Ins. Co. v. Glenn, 554 U.S. 105, 112, 128 S.Ct. 2343, 2348, 171 L.Ed.2d 299 (2008) (citations omitted); accord, e.g., Durakovic v. Bldg. Serv. 32 BJ Pension Fund, 609 F.3d at 138 ("Employer-administrators have a categorical conflict."); McCauley v. First Unum Life Ins. Co., 551 F.3d at 133.
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, 489 U.S. at 115, 109 S.Ct. at 957; see, e.g., Metro. Life Ins. Co. v. Glenn, 554 U.S. at 111, 115, 128 S.Ct. at 2348, 2350 ("Trust law continues to apply a deferential standard of review to the discretionary decision making of a conflicted trustee, while at the same time requiring the reviewing judge to take account of the conflict when determining whether the trustee, substantively or procedurally, has abused his discretion."); McCauley v. First Unum Life Ins. Co., 551 F.3d at 128, 133 ("[A] plan under which an administrator both evaluates and pays benefits claims creates the kind of conflict of interest that courts must take into account and weigh as a factor in determining whether there was an abuse of discretion, but does not make de novo review appropriate. This is true even where the plaintiff shows that the conflict of interest affected the choice of a reasonable interpretation.") (citations omitted).
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, 609 F.3d at 138-39; see, e.g., Metro. Life Ins. Co. v. Glenn, 554 U.S. at 117, 128 S.Ct. at 2351 ("The conflict of interest ... should prove more important (perhaps of great importance) where circumstances suggest a higher likelihood that it affected the benefits decision, including, but not limited to, cases where an insurance company administrator has a history of biased claims administration. It should prove less important (perhaps to the vanishing point) where the administrator has taken active steps to reduce potential bias and to promote accuracy, for example, by walling off claims administrators from those interested in firm finances, or by imposing management checks that penalize inaccurate decision making irrespective of whom the inaccuracy benefits." (citations omitted)); McCauley v. First Unum Life Ins. Co., 551 F.3d at 133 (same). Such a conflict may "act as a tiebreaker when the other factors are closely balanced." Metro. Life Ins. Co. v. Glenn, 554 U.S. at 117, 128 S.Ct. at 2351; accord, e.g., Mohamed v. Sanofi-Aventis Pharm., 2009 WL 4975260 at *15.
ERISA Section 503(2) "requires that claims for benefits be afforded a `full and
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, i.e., 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
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, 2009 WL 4975260 at *14, *17 (S.D.N.Y. Dec. 22, 2009) (Denying summary judgment because, inter alia, Committee did not investigate plaintiff's claim that he did not violate company policy); Page v. Bancroft Neurohealth, Inc., 575 F.Supp.2d 664, 680 (E.D.Pa.2008) (Denying defendant's summary judgment motion because "[t]he record evidence presented by [the Plan Administrator] in support of its decision fails to satisfy the factual questions raised by Plaintiff."); Anderson v. Sotheby's, Inc., 04 Civ. 8180, 2006 WL 1722576 at *15-16 (S.D.N.Y. June 22, 2006) (Benefits determination was arbitrary and capricious where "the Committee relied heavily on certain excerpts from ... self-serving interviews ... to the exclusion of contrary evidence" and "also ignored portions of the interviews that did not support its decision."); Poehlmann v. Deutsche Bank Ams. Severance Pay Plan, No. Civ. A. 04-2669, 2005 WL 1875529 at *9 (E.D.Pa. Aug. 8, 2005) (Because "the Committee was faced with conflicting accounts..., yet relied exclusively on the Denaro Memo and conducted no independent review whatsoever," its conclusion was "the epitome of an arbitrary and capricious decision.").
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., 2009 WL 4975260 at *14, *16 (Committee's failure to review plaintiff's appeal letter, and other evidence that plaintiff was not fired for cause, "violated Plaintiff's right to a `full and fair review' of his benefits claim as a matter of law."); Eymer v. Ground Round, Inc., 913 F.Supp. 693, 698 (N.D.N.Y.1996) ("The ambiguity regarding whether the Benefits Committee ever genuinely considered plaintiffs' arguments, along with the fact that the Administrator may have acted under a conflict of interest compels the Court to conclude that questions of material fact exist as to whether the Administrator's decision denying benefits was arbitrary and capricious as a matter of law. Therefore, defendants' [summary judgment] motion is denied as to these claims.").
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.
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."
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.
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.
"An essential element of plaintiff's proof under the statute [i.e., § 510] is to
Mayers alleges that Emigrant's stated grounds for her "for cause" termination were pretextual 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., 859 F.2d at 1112 (At the third step of the McDonnell Douglas framework, "[t]he plaintiff's ultimate burden of persuading the trier of fact that he or she was the victim of intentional discrimination then merges with the plaintiff's burden of proving that the employer's reason is pretextual. This may be accomplished `either directly by persuading the court that a discriminatory reason more likely motivated the employer or indirectly by showing that the employer's proffered explanation is unworthy of credence.'" (citations omitted)); see also cases cited at pages 16-20 above, discussing the McDonnell Douglas burden shifting framework.
Mayers contends that Emigrant's intent to interfere with her attainment of benefits
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.
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.
