The opinion of the court was delivered by: John G. Koeltl, District Judge
The plaintiff, Vincent P. Deluca, brings this action against his former employer, the Bank of Tokyo Mitsubishi UFJ, Ltd. ("BTMU"). The plaintiff alleges that the defendant discriminated against him on the basis of his national origin (American) and age in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 296, and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107(a). The plaintiff also asserts claims of breach of express and implied contract, and fraudulent inducement based on oral promises he allegedly received from a senior manager at BTMU.
The defendant moves pursuant to Rule 56 of the Federal Rules of Civil Procedure for summary judgment dismissing the Amended Complaint in its entirety.
The standard for granting summary judgment is well established. Summary judgment may not be granted unless "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of "informing the district court of the basis for its motion" and identifying the matter that "it believes demonstrate[s] the absence of a genuine issue of material fact." Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts which are material and "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its burden, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114--15 (2d Cir. 1998) (collecting cases).
The evidence submitted to the Court reflects the following facts as construed in the light most favorable to the plaintiff. The plaintiff began his employment with BTMU on June 2, 1992, when he was forty-six years of age. (Def. 56.1 Stmt. ¶ 1; Pl. 56.1(b) Stmt. ¶ 1.) The plaintiff was born on April 1, 1946. (Def. 56.1 Stmt. ¶ 2; Pl. 56.1(b) Stmt. ¶ 2.)
The plaintiff was hired as an Investment Banking Specialist/Vice President in the Investment Banking Group at a salary of $115,000. (Def. 56.1 Stmt. ¶ 3; Pl. 56.1(b) Stmt. ¶ 3.) As set forth in his offer letter and in the employee manuals distributed to the plaintiff during his employment, the plaintiff's employment with the Bank was at-will. The plaintiff claims that Mr. Shoto Yasuda, a person in a top management position at BTMU, made certain representations to him which altered the terms of his otherwise at-will employment. (Def. 56.1 Stmt. ¶ 4; Pl. 56.1(b) Stmt. ¶ 4.)*fn1
Also embodied in BTMU's employee manuals was an equal employment opportunity policy, which requires that BTMU's employment decisions be made "without regard to race, color, national origin, religion, age, sex, disability. . . or any other protected status." The policy also provided that "[t]he Bank expressly prohibits any form of unlawful discrimination or unlawful harassment" and makes it the responsibility of supervisors and managers to create an atmosphere free of discrimination or harassment and to immediately report any information regarding discrimination or harassment to the Human Resources Group." Employees are warned that "unlawful harassment or unlawful discrimination by an employee will not be tolerated, and appropriate disciplinary action, up to and including termination of employment, will be taken against anyone who violates this Policy." (See Def. 56.1 Stmt. ¶¶ 15-16; Pl. 56.1(b) Stmt. ¶¶ 15-16.)
Two years after he began working at BTMU, on or about November 1, 1994, the plaintiff was promoted to Senior Vice President. (Def. 56.1 Stmt. ¶ 5; Pl. 56.1(b) Stmt. ¶ 5.) Annual bonuses were part of the plaintiff's compensation package. His bonus increased from $105,000 in 1995 to $320,000 in 1999, and more than doubled to $670,000 in 2000, bringing his total compensation to $850,000 for that year. The plaintiff's bonus remained at this level for 2001. In 2002, the plaintiff received a bonus of $590,000, and in 2003 the plaintiff's bonus was reduced to $425,000. In 2004 the plaintiff's bonus was further reduced to $410,000. (Def. 56.1 Stmt. ¶¶ 105-07, 110, 111, 114, 116-17; Pl. 56.1(b) Stmt. ¶¶ 105-07, 110, 111, 114, 116-17.) BTMU attributes this reduction to the tightening of the job market in or around 2002 and 2003, and asserts that bonus compensation levels were reduced for many employees as a result of internal cost-cutting. The plaintiff claims that the reductions in his bonus compensation were the result of age and national origin discrimination. (Def. 56.1 Stmt. ¶¶ 114, 116; Pl. 56.1(b) Stmt. ¶¶ 114, 116.)
On May 12, 2005, the plaintiff was informed that BTMU was terminating his employment. BTMU claims that the termination was the result of inappropriate behavior by the plaintiff in connection with the impending transfer of his supervisor, Mr. Koji Baba. In early May 2005, upon learning that Mr. Baba, who is Japanese and a senior officer of BTMU, was returning to BTMU's headquarters in Tokyo, the plaintiff made several comments to Mr. Baba, first by telephone and then twice in person, that Mr. Baba was being reassigned to Baghdad, Iraq. (Def. 56.1 Stmt. ¶ 23; Pl. 56.1(b) Stmt. ¶ 23.) On May 3, 2005, the plaintiff sent Mr. Baba an e-mail with the subject line "Your Next Office" to which he attached a picture of a crowded room of Asian employees working in a clerical setting. (Def. 56.1 Stmt. ¶ 24; Pl. 56.1(b) Stmt. ¶ 24.) The plaintiff does not dispute that he specifically selected the picture because it depicted a crowded office of employees such as might be encountered by Mr. Baba upon his return to Japan. (Def. 56.1 Stmt. ¶ 25; Pl. 56.1(b) Stmt. ¶ 25.)
Mr. Baba, who explained that he was upset by the email, reported it to Thomas Hasek, BTMU's head of Human Resources, and to Mitsuhiro Yamawaki, the General Manager of the Investment Banking Division for the Americas, to whom Mr. Baba and the plaintiff ultimately reported. (Def. 56.1 Stmt. ¶¶ 29, 39; Pl. 56.1(b) Stmt. ¶¶ 29, 39.) According to the defendant, Mr. Yamawaki consulted Mr. Hasek and Beryl Lewis, also in the Human Resources department, for a recommendation of the appropriate response. Mr. Hasek and Ms. Lewis recommended that the plaintiff's employment be terminated. Mr. Yamawaki initially noted his concern that the plaintiff's termination would impact BTMU's securitization business, but claims he nonetheless accepted this recommendation and decided to terminate the plaintiff's employment. (Def. 56.1 Stmt. ¶¶ 72-73; Pl. 56.1(b) Stmt. ¶¶ 72-73.)
On May 6, 2005, Mr. Yamawaki advised the Global Head of Securitization in Japan, Mr. Tetsuga Sato, that he intended to terminate the plaintiff's employment because of his recent conduct with respect to Mr. Baba and prior incidents "that leave questions about his qualifications as [a Senior Vice President]" but that because of his contributions over the years severance pay should still be considered. (Def. 56.1 Stmt. ¶ 74; Pl. 56.1(b) Stmt. ¶ 74.) On May 7, 2005, Mr. Yamawaki emailed Mr. Sato again. The email explained that because the incident occurred when BTMU was planning to expand securitization activities, they were forced to make a "difficult decision" but were able to reach it by thinking about the "positive effect overall." The email described the decision:
[T]he individual up to now repeatedly has made inappropriate comments during bank meetings and spoken and behaved inappropriately toward colleagues and supervisors, and this incident is not the only one. As [a Senior Vice President] required to have a strong ethical sense and self control, I concluded that he is not suitable for management, and upon consulting with both Personnel and Legal here, [I] made this decision. (Def. 56.1 Stmt. ¶ 75; Kesselman Decl. Ex. GG.)
Mr. Yamawaki also met with Kyota Omori, the Chief Executive Officer for the Americas. He informed Mr. Omori that he had reached the decision to terminate the plaintiff's employment after having sought the advice of Human Resources and Legal, showed him the plaintiff's May 3, 2005 email, and advised Mr. Omori that he was in the process of obtaining approval from Toyko. (Def. 56.1 Stmt. ¶ 76; Pl. 56.1 Stmt. ¶ 76.)*fn2 Mr. Yamawaki directed the preparation of a Request of Termination for Human Resources which was drafted by Mr. Baba, and signed by Mr. Yamawaki. The Request identified the reasons for the plaintiff's termination, and highlighted his shortcomings with respect to teamwork with other senior management, leadership, role modeling of junior staff, and adherence to Bank policies and procedures. The Request noted that, since 2002, Mr. Deluca's performance appraisals had identified these areas as ones in which improvement was needed, but that he had failed to improve. (Def. 56.1 Stmt. ¶ 79; Pl. 56.1(b) Stmt. ¶ 79.) The plaintiff was terminated on May 12, 2005, just over a week after he sent the email to Mr. Baba. (Def. 56.1 Stmt. ¶¶ 82-86; Pl. 56.1(b) Stmt. ¶¶ 82-86.)
The plaintiff claims that his termination was not the result of the email, which according to him was only a "joke", but a result of a long-standing BTMU practice of denying promotions to, compressing bonus compensation of, and ultimately terminating the employment of American bankers at BTMU who were in their fifties and older. Mr. Deluca claims that the email served as a mere pretext for this discriminatory termination. (Pl. 56.1(b) Stmt. ¶ 72.) Moreover, the plaintiff disputes that Mr. Yamawaki, Mr. Hasek, and Ms. Lewis were the only decisionmakers involved in his termination. The plaintiff asserts that in addition to consulting with the BTMU employees listed above, Mr. Yamawaki also consulted with several high ranking officials in Japan, including Mr. Sato, concerning his termination. (Pl. 56.1(b) Stmt. ¶¶ 74-75.) The plaintiff alleges that he was the recipient of several ageist and racist comments by other BTMU employees, which will be addressed below.
The defendant claims that the plaintiff cannot establish his claims of age and national origin discrimination. The defendant asserts first that the plaintiff adduced no evidence that could raise an inference of discrimination, and second that BTMU's decision to terminate the plaintiff was based upon the improper email which was a legitimate, non-discriminatory reason that the plaintiff cannot establish is pretextual.
The ADEA makes it unlawful for an "employer" "to discharge any individual" who is at least forty years of age "because of such individual's age." 29 U.S.C. §§ 623(a), 631(a). Title VII of the Civil Rights Act makes it "an unlawful practice for an employer to discriminate against any individual with respect to his compensation, terms, conditions or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a). Similarly, the state and local statutes prohibit discrimination on the basis of age and national origin. See New York State Human Rights Law, N.Y. Exec. Law § 296; New York City Human Rights Law, N.Y.C. Admin. Code § 8-107.
The plaintiff's claims of discrimination of the basis of age and national origin, brought pursuant to Title VII, ADEA and the New York State and City Human Rights Laws, are evaluated at the summary judgment stage by the burden-shifting analysis that governs Title VII, established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See, e.g., Dawson v. Bumble & Bumble, 398 F.3d 211 (2d Cir. 2005)(noting burden-shifting Title VII analysis also applies to discrimination claims under the NYSHRL and NYCHRL).*fn3
To establish a prima facie case of employment discrimination under Title VII and the ADEA, a plaintiff must show that: (1) the plaintiff is a member of a protected class; (2) the plaintiff was qualified for his position; (3) the plaintiff suffered an adverse employment action; and (4) the adverse employment action occurred under circumstances that give rise to an inference of discrimination. See McDonnell Douglas, 411 U.S. at 802; see also St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993); James v. New York Racing Ass'n, 233 F.3d 149, 153--54 (2d Cir. 2000); Vinson v. City of New York, No. 04 Civ. 7769, 2007 WL 965338, at *4 (S.D.N.Y. March 30, 2007). If the plaintiff meets his minimal burden of establishing a prima facie case, the burden of production then shifts to the defendant to offer a legitimate, nondiscriminatory rationale for the adverse employment action. See St. Mary's Honor Ctr., 609 U.S. at 506-07; McDonnell Douglas, 411 U.S. at 802--03; James, 233 F.3d at 154.
If the defendant articulates a legitimate reason for the action, the presumption of discrimination raised by the prima facie case drops out, and the plaintiff has the opportunity to demonstrate that the proffered reason was not the true reason for the employment decision and that the plaintiff's membership in a protected class was. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254--56 (1981); Roge v. NYP Holdings, Inc., 257 F.3d 164, 168 (2d Cir. 2001); Darrell v. Consol. Edison Co. of New York, Inc., No. 01 Civ. 8130, 2004 WL 1117889, at *8 (S.D.N.Y. May 18, 2004). "The ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff remains at all times with the plaintiff." Burdine, 450 U.S. at 253; see also Reeves v. Sanderson Plumbing Co., 530 U.S. 133, 143 (2000); Darrell, 2004 WL 1117889, at *8.
The Court of Appeals for the Second Circuit has instructed that in determining whether the plaintiff has met this burden, a court is to use a "case by case" approach that evaluates "the strength of the plaintiff's prima facie case, the probative value of the proof that the employer's explanation is false, and any other evidence that supports [or undermines] the employer's case." James, 233 F.3d at 156 (quoting Reeves, 530 U.S. at 148-- 49); see also Darrell, 2004 WL 1117889, at *8. Although summary judgment must be granted with caution in employment discrimination actions, "where intent is genuinely in issue, summary judgment remains available to reject discrimination claims in cases lacking genuine issues of material fact." Chambers, 43 F.3d at 40 (citation omitted); see also Singh v. New York City Off-Track Betting Corp., No. 03 Civ. 5238, 2005 WL 1354038, at *7 (S.D.N.Y. June 8, 2005).
The plaintiff carries the initial burden under the McDonnell Douglas framework of making out a prima facie case of discrimination. The plaintiff has satisfied the first three prongs of the prima facie case. The plaintiff was a fifty-six year old American at the time of his termination, and thus a member of a protected class. The plaintiff has further demonstrated that he was qualified for his position,*fn4 and suffered an adverse employment action. However, the plaintiff has failed to establish the fourth prong, that he was terminated under circumstances giving rise to an inference of discrimination.
The circumstances of the plaintiff's termination do not raise an inference of discrimination. He was terminated after having mocked the fact that Mr. Baba, his supervisor, was being relocated to the employer's head office in Tokyo. He followed that up by sending an insensitive racially charged picture to Mr. Baba which the plaintiff thought was a joke. Mr. Baba did not take it as a joke and reported it to Mr. Yamawaki, the person in charge of both the plaintiff and Mr. Baba, as well as to the head of the Human Resources Department. Upon the advice of the Human Resources Department, with legal input, Mr. Yamawaki decided to terminate the plaintiff. Mr. Yamawaki advised the head office in Tokyo that he had made the decision to terminate the plaintiff. The plaintiff was terminated nine days after sending the offensive e-mail. There were no comments made in the course of the termination process that reflected any ageist or national origin bias in the termination. Indeed, the only comment the plaintiff can point to from Mr. Yamawaki is a comment that Mr. Yamawaki made about his own age compared to that of his children, at some unspecified time which the plaintiff did not consider disparaging. The timing and circumstances of the plaintiff's termination do not suggest any inference of discrimination.
The plaintiff attempts to develop eight points that he contends constitute direct evidence of discrimination. He refers to his fifty-four page declaration submitted in opposition to the current motion, rather than his deposition testimony. He also points to his Local Rule 56.1(b) Statement, most of which fails to point to any admissible evidence. The plaintiff has failed to offer admissible evidence to establish any ...