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Policano v. Valley National Bank

April 11, 2008

THERESA POLICANO, PLAINTIFF-APPELLANT,
v.
VALLEY NATIONAL BANK AND GERALD LIPKIN, INDIVIDUALLY AND AS PRESIDENT OF VALLEY NATIONAL BANK, DEFENDANTS-RESPONDENTS.
PROFORMANCE INSURANCE CO., PLAINTIFF,
v.
THERESA POLICANO, VALLEY NATIONAL BANK AND GERALD LIPKIN, DEFENDANTS.



On appeal from Superior Court of New Jersey, Law Division, Essex County, No. L-2659-04.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued January 24, 2008

Before Judges Wefing, Parker, and R. B. Coleman.

Plaintiff appeals from a trial court order granting defendant's motion to dismiss her complaint under Rule 4:37-2(b). After reviewing the record in light of the contentions advanced on appeal, we affirm.

Plaintiff was employed by Valley National Bank as manager of the Colonial branch in Kearney. She was terminated in December 2003 and filed this lawsuit, alleging religious discrimination in violation of New Jersey's Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to -49. Shortly before trial, she amended her complaint to assert as well that her termination was retaliatory, violating N.J.S.A. 10:5-12(d), prohibiting any person from taking reprisal against an individual because that person has opposed any violation of the LAD.

In early November 2003 plaintiff was summoned, with several other branch managers, to a meeting with John Montesano, the regional manager. Mr. Montesano informed the managers in attendance that the bank would be expanding its program of Sunday banking and that the Colonial branch would be among those to be open on Sundays. The first Sunday opening was to be November 30, 2003.

Plaintiff was very upset at hearing this news and raised a number of operational concerns relating to items such as staffing, security codes, and compensation. She testified that she stressed that she was Catholic and that working on Sunday would pose a religious dilemma for her. She noted that most of her staff were Christian and that this policy would pose significant problems for them as well. Mr. Montesano testified that the concerns plaintiff expressed related to operational issues, not religious issues. We do not consider the difference in their respective testimony to be material to the issues on appeal.

Plaintiff voiced her concerns in such a loud and disruptive manner, however, that Mr. Montesano was unable to finish the meeting. Mr. Montesano testified that he was not surprised at her reaction; he said it was "typical of Terry's reaction to things that she would go through this period of ranting and raving and rebelling against a new concept, a new initiative . . . ." He admitted that, historically, after she had vented in this manner, she would implement the new program or proposal which she had opposed so vigorously at the outset.

Plaintiff returned to her branch and informed her staff of this proposal. A number of employees at the Colonial branch were upset at hearing the news that the branch would be open on Sunday. Some were upset for religious reasons, some for personal reasons, particularly in light of the fact that they were already working six days a week. Plaintiff did not tell the employees that the bank was planning on hiring additional staff to reduce the burden. She also did not tell them that those who worked on Sunday would be paid overtime. Plaintiff knew that the bank's policy was to accommodate the religious beliefs of its employees. She was aware, for instance, that one branch manager was an observant Jew and was permitted not to work on Saturdays. Plaintiff did not remind those employees at the Colonial branch who were upset at the prospect of Sunday banking of this policy of accommodation.

Plaintiff called the Human Resources department and said that her staff was upset at the proposed Sunday opening. She was advised to tell those employees who were upset that they should put their concerns in writing and forward them to the bank's Human Resources department. At least six of the employees at the Colonial branch did so.

The record presented at trial demonstrated that plaintiff had a long history of expressing her views in a strident manner. Her performance review for the year 2000 noted that she needed improvement in the areas of verbal expression and remaining calm. The performance review had space in which to outline areas in which an employee needed improvement. Hers was completed in the following manner:

Reduce customer complaints, especially those that comment on her attitude. Develop a "can do" attitude rather than "this won't work in my office" when dealing with Regional, Divisional or Bankwide initiatives.

Her attitude and demeanor resulted in her once being placed on probation although a subsequent performance review did note improvement in the criticized areas and a decrease in customer complaints. The record also indicates that her attitude had hindered her advancement to the position of vice-president, a fact which rankled her and spurred repeated complaints on her part. There was testimony at trial that her superiors had on several occasions recommended her termination because of these ...


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