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Bobo v. Wachovia Securities

March 23, 2010



Plaintiff William M. Bobo ("Plaintiff") commenced this action pursuant to the New York Human Rights Law ("NYHRL"), N.Y. EXEC. LAW § 290 et seq., claiming that Defendant Wachovia Securities, L.L.C. ("Defendant" or "Wachovia") discriminated against him on the basis of his age, created a hostile work environment based on age discrimination and wrongfully retaliated against Plaintiff. Compl. (Dkt. No. 1-2) ¶ 30-32. This case originated in state court, but was removed to this Court based on diversity jurisdiction pursuant to 28 U.S.C. § 1332(a). (Dkt. No. 1) Currently before the Court is Defendant's Motion for Summary Judgment. (Dkt. No. 40). For the reasons that follow, Defendant's Motion is granted and the above-captioned case is dismissed in its entirety.


In 2003, Defendant Wachovia Securities L.L.C. was formed by the merger of the retail securities brokerage and clearing businesses of Wachovia Corporation and Prudential Financial, Inc. Answer (Dkt. No. 7) ¶ 6. After the merger, there was an initial duplication of job functions resulting in more than one employee competing for a single position. Def.'s Statement of Material Facts (Dkt. No. 40-1) ¶ 2, 3. Defendant used a uniform assessment process to decide who would be offered the position. Id. ¶ 3.

At the time of the merger, Plaintiff was the Albany Complex Manager for Prudential, where he had been employed since 1976. Compl.¶¶ 11, 12. Lance Million was the Albany Complex Branch Manager for Wachovia. Roddy Aff. (Dkt. No. 40-8 Ex. C-3) ¶ 6. The complexes managed by Plaintiff and Million covered the Albany and Saratoga territories for their respective firms; each individual reported to his own Regional President. Id. ¶¶ 7, 8.

As Regional President, Rick Capozzi was Plaintiff's direct supervisor, but Capozzi left Wachovia before a decision was made regarding the management of the Albany Complex. Capozzi Aff. (Dkt. No. 40-7, Ex. C-2) ¶ 3, 6. Nevertheless, Plaintiff asserts that before the merger was effectuated in March 2003, Capozzi assured Plaintiff that he would be selected for the branch manager position of the Albany Complex. Pl.'s Statement of Material Facts (Dkt. No. 43- 7) ¶ 6. Sometime after this assurance, Capozzi allegedly asked Plaintiff if he intended to retire, to which Plaintiff responded he did not. Id. ¶ 7.

In 2004, Theresa Roddy became the Regional President for Plaintiff's Region. and was responsible for reviewing and interviewing candidates for the Complex Branch Manager positions in her Region. Roddy Aff. (Dkt. No. 40-8, Ex. C-3) ¶¶ 4, 5. Roddy allegedly applied Wachovia's uniform assessment process to all candidates she reviewed, including Plaintiff and Million, who were competing for the Albany branch manager position. Def.'s Statement of Material Facts (Dkt. No. 40-1) ¶ 14. The assessment process asked four objective questions of the candidate, whose responses were scored by two reviewers. Id. ¶¶ 15, 18. Roddy and Regional Administrative Manager Jim Carbonara were the reviewers for Plaintiff and Million. Id. ¶¶ 15, 31-32. Under the uniform assessment process, the employee with the higher score was to be offered the position. Id. ¶ 23. Allegedly, in every case in which an older candidate scored higher, Roddy selected the older candidate. Id. ¶ 25.

At the time of the interviews, Lance Million was forty-four years old and Plaintiff was fifty-nine years old. Crawford Aff. (Dkt. No. 40-9, Ex. C-4); Compl. ¶ 2. Plaintiff allegedly scored 3.9375, while Million scored 4.125. Def.'s Statement of Material Facts ¶ 34. Million was offered the position of Albany Complex Manager. Id. ¶ 37. Plaintiff was offered the position of Complex Manager for a newly created Saratoga Complex rather than being asked to accept a demotion to the position of financial advisor, typically the only option available to the lower scorer. Id. ¶ 38. Plaintiff accepted this offer. Id. ¶ 42.

During discovery, Defendant was unable to produce certain documents which detailed the scoring tallies created during the interviews for the Albany Complex manager position. Wachovia's company policy required the interviewers to create these documents during the assessment process and retain them. Pl.'s Statement of Material Facts, ¶¶ 17-21. Defendant produced one note written by Ms. Roddy stating that the "new guard" was loyal to Lance Million, while the "old guard" was loyal to Mr. Bobo. Pl.'s Statement of Material Facts ¶ 16.

Plaintiff complained twice about the decisions to hire Million and move Plaintiff to Saratoga. First, Plaintiff asked the President of the Private Client Group, Jim Donely, to reverse Ms. Roddy's decision, but Mr. Donely said he could not do so. Id. ¶ 41. Second, on August 23, 2004, Plaintiff wrote an e-mail to Danny Ludeman, the Chief Executive Officer of Wachovia Securities, expressing Plaintiff's disappointment in not being selected for the Albany position and seeking an opportunity to discuss the situation with Mr. Ludeman. Id.¶¶ 49-50.

On August 30, 2004, Plaintiff met with Ms. Roddy, who gave Plaintiff a memorandum of reprimand. Id. ¶ 53. Plaintiff was reprimanded because: 1) he demonstrated a negative attitude toward the Saratoga position; 2) he complained about the firm to potential recruits; and 3) there were several incidents where Plaintiff engaged in rude and aggressive behavior toward the Wachovia Real Estate associates. Id. ¶ 54. In response, Plaintiff sent a memo to Ms. Roddy objecting to the reprimand. Id. ¶ 60; Pl.'s Statement of Material Facts (Dkt. No. 43-7) ¶ 50.

Plaintiff's Complaint alleges that his transfer to the Saratoga branch was wrongful because it was based on age discrimination. Compl. ¶ 30. Additionally, Plaintiff claims "[t]he terms, conditions and privileges of plaintiff's employment with defendant were so altered as to constitute discrimination on the basis of age in violation of the HRL." Id. ¶ 31. Finally, Plaintiff claims Defendant wrongfully retaliated against Plaintiff. Id. ¶ 32.

On April 17, 2009, Defendant moved for summary judgment. Dkt. No. 40.


Federal Rule of Civil Procedure 56 provides that summary judgment is proper when "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); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "Only 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). Summary judgment is appropriate "only when no reasonable trier of fact could find in favor of the nonmoving party." Taggart v. Time, Inc., 924 F.2d 43, 46 (2d Cir. 1991).

Once the moving party meets its initial burden of showing there is no genuine issue of material fact, it is then up to the non-moving party to do "more than simply show that there is some metaphysical doubt as to the material facts." Matsushita Elec. Indus. Co. v. Zenith Corp., 475 U.S. 574, 586 (1986). "The non-moving party may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that its version of the events is not wholly fanciful." D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir. 1998). However, "caution should be exercised in granting summary judgment where state of mind is in issue or when the party opposing the motion has been denied relevant discovery." Flaherty v. Caughlin, 713 F.2d 10, 13 (2d Cir. 1983) (citations omitted).

When considering a motion for summary judgment, the court must resolve all ambiguities and draw all reasonable inferences in favor of the non-moving party. Nora Beverages, Inc. v. Perrier Group of America, Inc., 164 F.3d 736, 742 (2d Cir. 1998). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to ...

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