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Gran v. TD Bank, NA

United States District Court, D. Connecticut

September 2, 2016

MELISSA GRAN, Plaintiff,
TD BANK, NA, Defendant.



         TD Bank, NA (“TD Bank” or the “Bank”) terminated Melissa Gran's employment, because it claims that it believed she cashed checks for certain Bank clients in a way that violated the Bank's policies. Ms. Gran claims that the Bank terminated her because she was a woman with young children and therefore, discriminated against her on the basis of her gender in violation of the Connecticut Fair Employment Practices Act (“CFEPA”), Conn. Gen. Stat. § 46a-60(a)(1). Compl. at First Count, ECF No. 1-1. She also brings a negligent infliction of emotional distress claim against the Bank for its conduct surrounding her termination. Id. at Second Count.

         TD Bank has moved for summary judgment on both claims. Mot. for Summ. J., ECF No. 45. For the reasons that follow, TD Bank's motion is GRANTED with respect to Ms. Gran's negligent infliction of emotional distress claim and DENIED with respect to her CFEPA claim.


         Ms. Gran began working for TD Bank in April 1999. Def.'s Ex. B, Gran Dep. 24:12-14, ECF No. 47-2. Most recently, and during the time period relevant to this lawsuit, Ms. Gran worked as a store manager of the Bank's downtown Hartford location. Def.'s Local Rule 56(a)1 Stmt. ¶ 16, ECF No. 47.[1] In this role, Ms. Gran had “overall responsibility for the store, ” which included overseeing the Bank's operations, implementing the Bank's policies and procedures, and directing employees about the same. Id. ¶¶ 19-20. While employed there, she also had two children, one born in January 2008, and the other in February 2013. Id. ¶ 17.

         Ms. Gran generally received positive reviews for her job performance. Id. ¶ 21. But Ms. Gran and her supervisors agree that “operations, ” or ensuring that policies and procedures were followed consistently, was a weak area of her performance. Id.; Def.'s Ex. B, Gran Dep. 38:19-40:4, 52:16-24, ECF No. 47-2.[2]

         TD Bank has a number of written policies governing check cashing. One of these policies, known as the TD Bank Check Cashing Policy, provides that checks payable to a business entity must be deposited into an account owned by that business and may not be cashed. Def.'s Local Rule 56(a)1 Stmt. ¶ 10, ECF No. 47. Another, known as the Standard Funds Availability Policy, provides that the first $100 of a customer's non-cash deposits are available immediately and the remaining funds are available no later than the next business day, subject to certain exceptions. Id. ¶ 12. These policies are intended to save the Bank money, in case of bounced checks, and to ensure compliance with banking regulations. Id. ¶¶ 7, 13.

         In April 2013, while Ms. Gran was out on maternity leave after the birth of her second child[3], a Corporate Security Senior Investigator at TD Bank named Mario Rosa discovered a small business account “out of Ms. Gran's branch location which was overdrawn by over $5, 000. Id. ¶¶ 23-24. The Bank's Corporate Security Department is responsible for investigating any issues that place the Bank at risk, including fraud and other types of illicit account activities. Def.'s Ex. B, Gran Dep. 107:15-19, ECF No. 47-2. As a result of being overdrawn, the account was placed on “No Check Activity status, ” which blocked all checks and other withdrawals from posting to the account. Def.'s Local Rule 56(a)1 Stmt. ¶ 23, ECF No. 47. This status also triggered an extended wait time, past the next business day, before funds deposited by check could be made available to the account holder. Id.

         Mr. Rosa followed up about this overdrawn account with Assistant Store Manager Sabina Vegiard, who was filling in for Ms. Gran as store manager while she was out on maternity leave. Id. ¶ 24. Mr. Rosa testified that Ms. Vegiard told him the branch often made funds available to this particular client, known as PM Business in this lawsuit, even though the account was overdrawn, because they knew that the checks they cashed were “good.” Id. ¶ 26.[4] He also testified that Ms. Vegiard indicated that, as a result, this customer paid roughly $12, 000 in overdraft fees per year. Id.

         Mr. Rosa referred the matter to a Regional Operations Officer, Francine Smith, for investigation. Id. ¶ 27.[5] Ms. Smith, along with Human Resources Manager Tara Celani, Ms. Gran's direct supervisor, Kristie Dammling, and Human Resources Business Partner Cheryl Wegraff conducted the investigation. Id. ¶¶ 16, 27, 32. All four of these individuals are women, who have children. Id. ¶¶ 18, 30, 35, 37.

         To investigate the matter, TD Bank interviewed several employees and reviewed relevant account records. Id. ¶ 38.[6] The investigation revealed that Ms. Gran and other employees at her store regularly cashed checks made payable to PM Business and deposited these funds into the account as cash, making the funds immediately available. Id. ¶ 39. It also revealed that employees at the store cashed checks payable to PM Business's owner personally from the PM Business account, even if the account was overdrawn, and made those funds available immediately. Id. ¶ 42. The investigation showed that the Hartford branch employees followed a similar practice for at least one other customer, referred to as “DO Business” in the context of this case. Id. ¶ 47.

         In one instance, TD Bank's teller computer system rejected a transaction because PM Business's account had insufficient funds, which caused a stop to be automatically placed on its account. Id. ¶ 45. Ms. Gran manually overrode the system, cashed the check in its entirety, and provided the customer with the amount of the check in cash. Id. ¶ 46. In another instance, she manually overrode the system to make funds available more quickly to DO Business, after the computer system had placed a seven-day hold on the account because of several returned deposit items. Id. ¶ 48.

         The findings of the Bank's investigation were elevated to the Senior Vice President of Retail Banking, Mauro Decarolis. Id. ¶ 56. Upon the recommendation of Ms. Celani and Ms. Weagraff, as well as Senior Vice President of Human Resources Shirley Haggarty, and Assistant Vice President of Employee Relations Kimberly Lovett, Mr. Decarolis decided to terminate Ms. Gran for violating TD Bank's check cashing policies. Id. ¶¶ 59, 62-63.[7] He also decided to terminate the rest of Ms. Gran's all-female management team for engaging in the same policy violations, which included Ms. Vegiard, Anh Dao Nguyen, and LaTasha Edwards. Id. ¶ 64. He did not terminate two other employees, Joseph Delcegno and Denisa Murtich, who engaged in similar conduct. See Pl.'s Ex. 20, Delcegno Aff. ¶¶ 7-9, 11-12, ECF No. 52-20; Def.'s Ex. A-15, E-mail dated June 24, 2013, ECF No. 47-1; see also Def.'s Ex. A-20, E-mail dated July 5, 2013 and Attached Spreadsheet, ECF No. 47-1.

         Ms. Gran does not deny that the events revealed by the investigation occurred. Pl.'s Local Rule 56(a)1 Stmt. ¶55, ECF No. 52-24. But she contends that her conduct did not violate the Bank's policies, because she had discretion to make exceptions under those policies. Id. ¶¶ 10, 12, 13-14, 39, 42; see also Pl.'s Ex. 1, Gran Aff. ¶ 12, ECF No. 52-1 (“As Store Manager, I always had authority and discretion with regard to the[ ] policies, especially if it meant we could Wow! [t]he customer. TD Bank had a Wow! Philosophy which was very important to TD Bank.”); Def.'s Ex. B, Gran Dep. 117:9-11, ECF No. 47-2 (“There's a lot more information that's not included in this [written policy]. There are also policies on making exceptions.”).

         For example, she contends that it was common practice for managers, like herself, to e-mail a request to the Deposit Operations Department to make the funds deposited by check into an account available immediately and in full. Pl.'s Ex. 1, Gran Aff. ¶ 20, ECF No. 52-1; Def.'s Ex. B, Gran. Dep. 128:13-25, 130:12-131:6, ECF No. 47-2; see also Pl.'s Ex. 17, Overdraft Policy 1, ECF No. 52-17 (“On a rare occasion, Store Team Members with the appropriate approval level can request Deposit Operations to pay an item on an overdrawn account by emailing” a certain e-mail address).

         She argues that a number of TD Bank managers operated in a similar way, applying various exceptions to the check cashing and funds availability policies at their discretion. She identifies a number of these other managers by name but could not recall any specific factual details about how or when they applied exceptions or discretion to TD Bank's policies. Def.'s Ex. B, Gran. Dep. 134:24-136:22, 139:3-140:1, 140:12-22, 141:2-14, ECF No. 47-2. The record contains no direct testimony from any other store manager corroborating Ms. Gran's view of TD Bank's policies.

         Ms. Gran's direct supervisor, Ms. Dammling, told Ms. Gran that she was terminated at a meeting, with Ms. Weagraff present, on July 16, 2013. Def.'s Local Rule 56(a)1 Stmt. ¶¶ 67-70, ECF No. 47; Pl.'s Ex. 1, Gran Aff. ¶ 2, ECF No. 52-1. During the meeting, Ms. Dammling read from a script received from Ms. ...

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