In re Mayo, Bankruptcy No. 03-10114.

• Decision Date: 17 March 2005
• Docket Number: Adversary No. 04-1018.,Bankruptcy No. 03-10114.
• Citation: 322 B.R. 712
• Parties: In re Lisa MAYO, Debtor. Lisa Mayo, Plaintiff, v. Union Bank, Defendant.
• Court: U.S. District Court — District of Vermont

Page 712

322 B.R. 712

In re Lisa MAYO, Debtor Lisa Mayo, Plaintiff, v. Union Bank, Defendant.

Bankruptcy No. 03-10114.

Adversary No. 04-1018.

United States Bankruptcy Court. D. Vermont.

March 17, 2005.

Bernard D. Lambek, Esq., Montpelier, For the Debtor-Plaintiff.

Anthony B. Lamb, Esq., Burlington, For the Defendant.

MEMORANDUM OF DECISION

DENYING PLAINTIFF'S MOTION FOR SUMMARY JUDGMENT

COLLEEN A. BROWN, Bankruptcy Judge.

In her Complaint, Lisa Mayo (the "Plaintiff") alleges that the her former employer, Union Bank, N.A. ("Union Bank") discriminated against her, in violation of § 525(b)¹, because it terminated her position as branch supervisor based upon her representation that she intended to file for bankruptcy relief (doc. # 1). On December 27, 2004, the Plaintiff moved for summary judgment on this ground as well as Union Bank's allegedly discriminatory conduct in refusing to re-hire the Plaintiff after she filed her bankruptcy case (doc. # 31).² On January 19, 2005, Union Bank filed a memorandum in opposition to the Plaintiff's motion for summary judgment (doc. # 40). The Court finds that, based upon the record before it, the Plaintiff has not demonstrated that Union Bank discriminated against her or that she is entitled to judgment as a matter of law. Accordingly, the Court denies the Plaintiff's motion for summary judgment.

The Court has jurisdiction over the Plaintiff's motion for summary judgment under 28 U.S.C. §§ 157(b)(1).

BACKGROUND FACTS

The pertinent facts are not in dispute. Union Bank employed the Plaintiff from March 1995 until March 28, 2002.³ The Plaintiff began working for Union Bank as a part-time "teller I" at an hourly wage of $6.50 and when she resigned, she was "branch supervisor" earning $11.50 per hour plus full benefits.⁴ In early 2002, when the Plaintiff's credit card debt had reached $35,000 and it became impossible for her to meet her monthly debt service obligations, she sought the advice of a bankruptcy attorney.⁵ That attorney required a $100 deposit for the initial consultation and an additional $900 retainer, prior to filing the bankruptcy case, to cover the cost of representing her in the case and the filing fee.⁶

Union Bank's policy manual in effect in March 2002 provided as follows:

There is a high level of financial integrity, which the Bank must maintain that requires each of us to be above criticism in the handling of our own private financial affairs. Employees are expected to manage their personal finances responsibly. This includes the proper handling of personal bank accounts as well. The Bank considers frequent instances of checks or charges presented against insufficient funds and kiting as examples of irresponsible handling of your personal accounts. Unacceptable handling includes the above examples, but is not limited to those examples and may include any other activity that the bank deems to be unacceptable. The Bank reviews employee deposit accounts on a regular basis as part of our security procedure.

See Exhibit A to Plaintiff's Motion, pp. 1-2. Because of this policy, the Plaintiff decided to disclose to Union Bank's Human Resource Manager, Donna Russo,⁷ that she was planning to file for bankruptcy relief.⁸ On or about March 8, 2002, the Plaintiff told Ms. Russo of her financial difficulties and that she intended to file bankruptcy.⁹ The Plaintiff's primary reason for talking with Ms. Russo was to find out whether she would be able to continue in her position as branch supervisor under the mandates of Union Bank's policy.¹⁰ On or about March 11, 2002, Ms. Russo told the Plaintiff that she would not be able to retain her current position as branch supervisor but that other positions might be available for her at Union Bank.¹¹ Although Ms. Russo was not aware of any available positions at that time, she assured the Plaintiff that she would look into it further and encouraged the Plaintiff to contact Cynthia Borck, Union Bank's executive vice president, if she had any further questions.¹² The parties do not dispute that the Plaintiff was told she could not retain her position as branch supervisor shortly after she disclosed her intent to file bankruptcy. However, the record is a bit unclear as to whether this decision by the bank was based upon the bank's policy about personal finances or the Plaintiff's disclosure of her intent to file for bankruptcy relief. Based upon the record before the Court, it appears that Union Bank does not dispute that the Plaintiff's disclosure of her intent to file bankruptcy was the impetus for a bank employee informing the Plaintiff that she would not be able to continue in her position as branch supervisor.

While the parties dispute the exact substance of the conversations between the Plaintiff and Ms. Borck, it is undisputed that Ms. Borck told the Plaintiff she could not retain her position as branch supervisor with Union Bank, and that there might be another position available for her.¹³ The parties are in dispute, however, about whether the Plaintiff was ever told that Union Bank expected her to resign. According to the Plaintiff, Ms. Borck told the Plaintiff that Union Bank expected her to resign.¹⁴ Ms. Borck denies that she ever said this.¹⁵ The Plaintiff understood that any alternate position that would be offered to her would involve less responsibility and could be considered a demotion by her co-workers. The Plaintiff claims that she did not wish to suffer the public humiliation of a demotion so she decided to resign.¹⁶ Although Ms. Borck testified that the Plaintiff could be moved to a position which did not involve the handling cash or interaction with the public, at no time between March 11 and March 28, 2002 did Union Bank identify any specific positions that might be available to the Plaintiff.¹⁷

On March 13, 2002, prior to the Plaintiff receiving any further information from the bank about what position(s)might be available to her at Union Bank, the Plaintiff submitted her resignation letter to Ms. Russo, citing that she had "chosen not to be transferred to another department."¹⁸ The Plaintiff's last day of work was March 28, 2002, approximately two weeks after she submitted her resignation letter.¹⁹ As of her last day with Union Bank, the Plaintiff was still employed as a branch supervisor.²⁰ During her exit interview, the Plaintiff informed Ms. Russo that she had decided not to file bankruptcy after all.²¹

The Plaintiff ultimately filed for bankruptcy relief on January 27, 2003.²²

In May 2004, the Plaintiff applied for new employment with Union Bank.²³ In connection with applications for employment, it is Union Bank's policy to request a consumer reporting agency to prepare a consumer report which will be used in determining whether the individual is eligible for employment.²⁴ In accordance with that policy, Union Bank requires that applicants sign a "Consumer Report Disclosure and Authorization" form which contains the following language:

I authorize Union Bank to obtain such a report and release Union Bank from any liability with obtaining such a report and/or taking any adverse action, based in whole or in part, on the consumer report.²⁵

When she applied for re-employment, the Plaintiff struck through all the language except "I authorize Union Bank to obtain such a report."²⁶ Because Union Bank was not willing to deviate from its standard hiring practices and the Plaintiff was not willing to sign the form without striking through certain language, the Plaintiff was denied employment.²⁷ The Plaintiff claims that Union Bank's denial of employment in May 2004 also constitutes discrimination prohibited by § 525.

SUMMARY JUDGMENT STANDARD

Summary judgment is proper only if the record shows that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. See FED. R. CIV. P. 56(c); FED. R. BANKR. P. 7056. A genuine issue exists only when "the evidence is such that a reasonable [trier of fact] could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. See Anderson, 477 U.S. at 247, 106 S.Ct. 2505. Factual disputes that are irrelevant or unnecessary are not material. See id. The court must view all the evidence in the light most favorable to the nonmoving party and draw all inferences in the nonmovant's favor. See Cruden v. Bank of New York, 957 F.2d 961, 975 (2d Cir.1992). In making its determination, the court's sole function is to determine whether there is any material dispute of fact that requires a trial. See Anderson, 477 U.S. at 249, 106 S.Ct. 2505; see also Palmieri v. Lynch, 392 F.3d 73, 82 (2d Cir.2004); Delaware & Hudson Ry. Co. v. Consolidated Rail Corp., 902 F.2d 174, 178 (2d Cir.1990).

DISCUSSION

The Court finds that there are no material facts in dispute with respect to the arguments Plaintiff asserts as grounds for summary judgment.²⁸ The Plaintiff claims that Union Bank wrongfully removed her from her position as branch supervisor. However, up until the Plaintiff's last day of employment, her title was branch supervisor. Although the Plaintiff voluntarily resigned within two (2) days of her conversation with Ms. Borck,²⁹ the Plaintiff strenuously argues that she is not asserting that she was constructively discharged. Rather, the Plaintiff's contention is that Union Bank discriminated against her "by terminating her employment as branch supervisor on the ground of her insolvency and imminent bankruptcy filing." See Plaintiff's Reply, at ¶ 4 (doc. # 41).³⁰ Therefore, the Court will address the legal arguments, on the narrow questions of whether Union...