Sweeney v. Santander Bank

• Decision Date: 16 September 2021
• Docket Number: Civil Action 19-cv-10845-ADB
• Parties: GAIL SWEENEY, Plaintiff, v. SANTANDER BANK, N.A., Defendant.
• Court: U.S. District Court — District of Massachusetts

GAIL SWEENEY, Plaintiff, v. SANTANDER BANK, N.A., Defendant.

Civil Action No. 19-cv-10845-ADB

United States District Court, D. Massachusetts

September 16, 2021

MEMORANDUM AND ORDER

ALLISON D. BURROUGHS U.S. DISTRICT JUDGE

Plaintiff Gail Sweeney (“Plaintiff”) alleges that Defendant Santander Bank, N.A., (“Defendant”) violated federal and state laws when it fired her in July 2017. Currently before the Court are Defendant's motion for summary judgment, [ECF No. 37], and motion to strike, [ECF No. 47]. For the reasons set forth below, the motion to strike is GRANTED in part and DENIED in part, and the motion for summary judgment is GRANTED.

I. BACKGROUND

A. Factual Background

Except as otherwise noted, the following facts are undisputed.^[1]

1. Plaintiff's Position in the Fraud Department

At all times relevant to this litigation, Plaintiff worked in Defendant's Fraud Department as a fraud analyst. [ECF No. 39 ¶ 5; ECF No. 45 ¶ 5]. Plaintiff was supervised by her manager, Jose Claudio, who reported to Kim Williams. [ECF No. 39 ¶ 8; ECF No. 45 ¶ 8]. Ms. Williams reported to the Director of Fraud Operations, Daniel Hyland. [ECF No. 39 ¶ 8; ECF No. 45 ¶ 8].

In 2014, Defendant moved its Fraud Department from Dorchester to Framingham, Massachusetts and, as a result, Plaintiff's job responsibilities changed. [ECF No. 49 ¶ 54]. She stopped processing fraud claims and began “speaking directly with customers in a call center environment.” [Id.]. While working at the call center, Plaintiff sat at an open table, with six colleagues, where everyone could see and hear each other. [ECF No. 39 ¶ 7; ECF No. 45 ¶ 7].

After the Fraud Department moved to Framingham, Plaintiff believes that older workers were “weeded out, ” [ECF No. 45 ¶ 58], that Defendant began hiring more Spanish-speaking employees, [id. ¶ 58], and that Defendant set up a new unit called the “Fraud Center of Excellence, ” which consisted of bilingual college graduates, [id. ¶ 62; ECF No. 46-7 ¶ 24]. Defendant disputes these assertions as unsupported by any evidence in the record. [ECF No. 49 ¶¶ 58, 62 (Defendant's Response)].

In 2017, a majority of the newly hired employees in Defendant's Framingham fraud unit were under forty years old.^[2] [ECF No. 49 ¶ 59].

2. Defendant's Policies

Defendant maintained an “Anti-Discrimination & Harassment” policy, which stated that

A workplace built on mutual respect must be free of any conduct that creates an intimidating, offensive or hostile work environment. Santander is firmly committed to a policy against discrimination in employment and to the right of all Team Members to work in an environment free of discrimination and harassment. Discrimination against or harassment of any Team Member on the basis of his or her race, color, religion, sex, national origin, age disability, genetic information, gender identity, uniformed service or any other characteristic protected by applicable law is strictly prohibited.

[ECF No. 39 ¶ 1; ECF No. 45 ¶ 1]. Defendant's Code of Conduct also had an “Equal Opportunity, Respectful, and Safe Workplace” policy that said

Santander U.S. is committed to a safe workplace that values equal opportunity, is free from discrimination and harassment, and does not tolerate inappropriate workplace behavior. You are expected to act professionally and show respect for others, thus fostering a positive, inclusive and productive work environment . . . .

Santander U.S. does not tolerate, and is firmly committed to preventing, harassment, abuse, intimidation, physical or verbal abuse, or any other behavior demonstrating a lack of respect toward others. You have the responsibility to foster a respectful, inclusive, and productive work environment. Examples of unacceptable conduct include unwelcome jokes, threats, unwanted physical contact, derogatory comments, teasing, bullying, intimidation or other offensive action whether related to an individual's membership in a protected class or not.

[ECF No. 39 ¶ 2; ECF No. 45 ¶ 2]. Plaintiff was familiar with both policies, and Defendant generally encouraged its employees to report discrimination and harassment. [ECF No. 39 ¶¶ 3-4; ECF No. 45 ¶¶ 3-4].

Defendant also had an Enterprise Severance Policy (“ESP”), which provided that “[s]everance benefits are only available to Team Members subject to a workforce reduction or position elimination and, as such, will not be provided if a Team Member is terminated for . . . . [m]isconduct or violation of company policies, procedures, practices, or the Code of Conduct.” [ECF No. 39-2 at 26]. The ESP also explained that it was “intended to be a welfare benefit plan as defined in Section 3(1)” of ERISA. [Id. at 29].

3. Coworker Complaints and Plaintiff's Termination

On or about June 16, 2017, Plaintiff's coworker, Corey Black, reported to Ms. Williams that she was working in an uncomfortable environment. [ECF No. 39 ¶ 13; ECF No. 45 ¶ 13]. Ms. Williams contacted Defendant's Senior Employee Relations Consultant, Karin Fitch-Urbano, about the complaint. [ECF No. 39 ¶ 14; ECF No. 45 ¶ 14]. Ms. Fitch-Urbano's responsibilities included working with employees and management on human resources (“HR”) issues and also conducting workplace investigations. [ECF No. 39 ¶ 15; ECF No. 45 ¶ 15].

Ms. Fitch-Urbano reached out to Ms. Black to discuss the complaint. [ECF No. 39 ¶ 16; ECF No. 45 ¶ 16]. Ms. Black told Ms. Fitch-Urbano about a June 14, 2017 incident where several employees were speaking Spanish and Plaintiff told them they needed to speak English because they were in America. [ECF No. 39 ¶ 17; ECF No. 45 ¶ 17]. After this discussion, Ms. Fitch-Urbano began an investigation and interviewed several of Plaintiff's coworkers. [ECF No. 39 ¶¶ 18-19; ECF No. 45 ¶¶ 18-19]. Ms. Fitch-Urbano learned that four other employees witnessed the June 14, 2017 incident and that Plaintiff had made her remarks in response to a coworker practicing Spanish with his colleagues. [ECF No. 39 ¶ 20; ECF No. 45 ¶ 20].^[3]

During the investigation, Plaintiff's coworkers told Ms. Fitch-Urbano about other incidents involving Plaintiff. One coworker reported that Plaintiff said “[w]hat do all these black people do here all day? They just stand around.” [ECF No. 39 ¶ 21; ECF No. 39-4 at 16]. Another coworker reported that Plaintiff told her that “[t]his kind of race makes mistakes, ” in reference to people of color. [ECF No. 39 ¶ 22; ECF No. 39-4 at 64]. Plaintiff denies ever making racist comments. [ECF No. 45 ¶¶ 21-22].

Ms. Fitch-Urbano also learned about another incident where Plaintiff asked a coworker who was speaking Russian in the break room: “How long are you going to do this? I just want some peace and quiet.” [ECF No. 39 ¶ 23; ECF No. 39-4 at 35]. Plaintiff admits that she asked for peace and quiet, but states that it was motivated by her desire for quiet during her break, not her coworker's use of Russian. [ECF No. 45 ¶ 23]. Several employees told Ms. Fitch-Urbano they were “fearful” of Plaintiff because she said she had a friend in the HR department. [ECF No. 39 ¶ 24; ECF No. 45 ¶ 24]. Plaintiff does not have any connections in HR and believes that it was unreasonable for her coworkers to be afraid of her based on this rumor. [ECF No. 45 ¶ 25; ECF No. 46-2 at 48].

Ms. Fitch-Urbano interviewed Plaintiff as part of the investigation and told Plaintiff what had been reported. [ECF No. 39 ¶¶ 27-28; ECF No. 45 ¶¶ 27-28]. During the interview, Plaintiff told Ms. Fitch-Urbano that she wanted to file a complaint against those who had complained about her conduct because she believed the accusations were false. [ECF No. 39 ¶¶ 32-33; ECF No. 45 ¶¶ 32-33; ECF No. 46-1 at 35]. Ms. Fitch-Urbano did not investigate Plaintiff's complaint. [ECF No. 39 ¶ 34; ECF No. 45 ¶ 34]. According to Defendant, Plaintiff's complaint did not offer allegations beyond what was already investigated or identify any additional witnesses. [ECF No. 39 ¶ 34].

Following the investigation, Ms. Fitch-Urbano summarized her findings in a report that was sent to Defendant's in-house legal department. [ECF No. 46-2 at 47]. The final report has not been produced to Plaintiff or the Court because Defendant asserts that it is privileged. [ECF No. 45 ¶¶ 35, 38; ECF No. 46-2 at 44]. Ms. Fitch-Urbano then spoke with Mr. Hyland about her findings, and he concluded that Plaintiff's conduct, as reported by her coworkers, was contrary to Defendant's Anti-Discrimination & Harassment and Equal Opportunity, Respectful and Safe Workplace policies. [ECF No. 39 ¶¶ 35-36; ECF No. 45 ¶¶ 35-36].^[4] Mr. Hyland decided to terminate Plaintiff. [ECF No. 39 ¶¶ 35-37; ECF No. 45 ¶¶ 35-37]. Ms. Fitch-Urbano, her superiors, and Defendant's in-house counsel agreed with Mr. Hyland's determination. [ECF No. 39 ¶ 39; ECF No. 45 ¶ 39].

Because of her long tenure with the bank, Plaintiff was offered a “mutual agreement” where Plaintiff would have a two-month, non-working period after which she would resign, and Defendant would not contest her claim for unemployment. [ECF No. 39 ¶ 40; ECF No. 45 ¶ 40; ECF No. 39-5 at 22]. Ultimately, Plaintiff did not accept the offer for a “mutual agreement, ” and she was terminated on July 17, 2017. [ECF No. 39 ¶¶ 43-44; ECF No. 45 ¶¶ 43-44]. Plaintiff was replaced by a twenty-five-year-old employee who self-identifies as white. [ECF No. 39 ¶ 45; ECF No. 45 ¶ 45].

4. Plaintiff's Prior Performance Reviews

Over the course of her employment, Plaintiff received several performance reviews. In February 2015, Plaintiff's manager at the time, Kim Foisy, wrote that Plaintiff “partially [met] expectations, ” and also accused her of timecard fraud. [ECF No. 49 ¶¶ 56-57]. According to Plaintiff, this negative review made it difficult for her to transfer to a different position.^[5] [Id. ¶ 56]. Pl...