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April 30, 2003


The opinion of the court was delivered by: David Hurd, District Judge



Plaintiff John Morris commenced the instant action against defendant Charter One Bank, F.S.B. ("Charter One") pursuant to the Age Discrimination in Employment Act, 29 U.S.C. § 621 ("ADEA"), and the New York Human Rights Law, N.Y. Exec. Law § 296 ("HRL") claiming that he was terminated on account of his age. Defendant now moves for summary judgment pursuant to Fed.R.Civ.P. 56. Plaintiff opposes. Oral argument was heard on January 24, 2003, in Albany, New York. Decision was reserved.


Plaintiff was born in 1944. (Def.'s Stmnt. of Material Facts at ¶ 1.)*fn1 In 1995, at the age of 51, plaintiff was hired by Albank as the Branch Sales Manager of the Johnstown Branch. (Id.; Compl. at ¶ 8.) While plaintiff was at Albank, he did not have any individual sales goals. (Id. at ¶ 4.) In 1998, Albank merged with defendant Charter One Bank, F.S.B. ("Charter One"). (Id. at ¶ 3.) As an employee of Charter One, plaintiff retained his role as Branch Sales Manager. (Compl. at ¶¶ 7-8.)

Charter One's goals for its branches, including the Johnstown Branch, were different than those set by Albank. (Morris Dep. at 70, 72.) Charter One gave its branches goals on an annual basis. (Morris Dep. at 72.) Plaintiff perceived an increased emphasis on sales results. (PSMF at ¶ 9.) He received training which included information regarding the type of available products, the benefits of the product, and things to point out to customers that would be beneficial to them. (Morris Dep. at 90.) The bank did not provide training regarding how to manage sales or how to encourage people to sell. (Id. at 91.) However, it did provide training on its computer system. (Id.)

During the first year and one-half after the merger, plaintiff continued to work under the supervision of "an Albank person," Rob Geyer ("Geyer"), with whom he worked at Albank. (Id. at 68-9, 78.) After the first year plaintiff worked for Charter One, he received a good evaluation from Geyer. (Id. at 78.) At his evaluation, Geyer set up goals for the year 2000 that "were higher than the prior year." (Id. at 79; DSMF at ¶ 7.) The Johnstown Branch did not meet its goals in the first quarter of 2000 because it was short in the areas of consumer loans and business checking. (DSMF at ¶ 12; Morris Dep. at 85-7.) In the second quarter of 2000, the Johnstown Branch met all of its goals except with respect to its business checking goals. (DSMF at ¶ 14.) In or about June 2000, in addition to the branch goals, Charter One "wanted individual goals assigned to individuals." (Morris Dep. at 80.) The individual goals were implemented in July 2000. (Id. at 89.) In or about June 2000, Geyer, resigned. (Id. at 92.) In approximately August 2000, his immediate supervisor became Colleen Pickett ("Pickett"). (Id.)

In late August 2000, Pickett met with plaintiff regarding his performance evaluation. (Morris Dep. at 92; Def. Ex. D.) She gave plaintiff a copy of his June 21, 2000 performance evaluation that was prepared, in part, by Loretta Chrys ("Chrys"), his second level supervisor. (Id.; DSMF at ¶ 19.) The evaluation noted certain performance gaps. (Def. Ex. D.) It noted that consumer loans were at 63% of goal; fee checking was at 97% of goal; and business accounts were at 69% of goal. (Id.) Plaintiff received a "great" rating for referrals. (Id.)

Chrys wrote on the evaluation that "immediate improvement in sales results is required." (Id.) The evaluation further noted that plaintiff had strong community involvement and that he was a solid team builder. (Id.) He was advised to "maintain [a] positive approach" and focus on a "productive/targeted sales action plan, including off-site effort and [to] capitalize on community involvement." (Id.) He received an average rating of 2.1.*fn2 (Def. Ex. D.)

During the evaluation meeting, plaintiff and Pickett "talked a little bit about goals and stuff." (Morris Dep. at 83.) She went over the figures with plaintiff and said that "the year to date goals have to be addressed," and that plaintiff would have to "try to make up the deficiency." (Id. at 94.) Pickett and plaintiff discussed the need to improve the gaps in his individual performance. (DSMF at ¶ 46.)

Following the August 2000 meeting with plaintiff, Pickett determined that plaintiff had made no progress in his individual goals. (DSMF at ¶ 48.) Specifically, she believed that as of late September 2000, while the branch was approximately at the same percentage of its goal as it was the prior month, plaintiff had not made any individual progress. (Def. Ex. G at 25.) She also found that plaintiff "wasn't using the technology available to him to support the sales culture." (Id. at 26.) Plaintiff was the only branch manager in the region not using the computer system. (Id. at 27.) She believed that plaintiff did not demonstrate any improvement in his use of the computer.*fn3 (Id. at 52.) Pickett saw no areas of improvement after plaintiff's midpoint evaluation was given to him in August. (DSMF at ¶ 50.)

On September 22, 2000, plaintiff was issued a written warning which read as follows: (Def. Ex. G.) In consideration of a "Development Needed" performance evaluation on your mid-year review requiring immediate improvement in sales results, this write up is notice of Written Warning. Branch performance gaps include consumer loans at 69%, fee checking at 97% and Business Checking at 56%. To date your individual performance gaps include consumer loans at 64%, fee checking at 0%, core accounts at 0% and business checking at 60%.

Minimum individual production levels over the next thirty (30) days are as follows:

Approved Consumer Loans $400,000

Fee Checking Accounts 5

Core Accounts 3

Business Checking Accounts 5

Minimum individual production levels over the next sixty (60) ...

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