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Gerald Altomare v. Wells Fargo

February 15, 2012


The opinion of the court was delivered by: Paul G. Gardephe, U.S.D.J.:


Plaintiff Gerald Altomare alleges that corporate defendants Wells Fargo & Company, Wells Fargo Securities, LLC, Wells Fargo Advisors, LLC, and Wachovia Corporation,*fn1 (collectively "Wachovia" or the "Company"), and individual defendants Richard Sandulli and Richard Silva (collectively, with the corporate defendants, "Defendants"), discriminated against him on the basis of age in violation of 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 § 290 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code § 8-101 et seq.*fn2 Plaintiff claims that Sandulli and Silva -- his supervisors at Wachovia -- "denied [him] a promised promotion and terminated him on the basis of his age." (Cmplt. ¶ 58; see also id. at ¶¶ 64, 69)

Plaintiff also asserts a quantum meruit claim against the corporate defendants, alleging that they wrongfully refused to pay him a bonus after terminating his employment in 2008. (Id. at ¶¶ 72-77)

Defendants have moved for summary judgment on all of Plaintiff's claims. For the reasons stated below, Defendants' motion will be granted as to the quantum meruit claim but will otherwise be denied.


The evidentiary record here is replete with factual issues. The parties dispute, inter alia, who hired Plaintiff to work at Wachovia; what Plaintiff was hired to do; how well he performed his duties; why he was not promoted; and the reasons for his termination. The parties also make conflicting factual claims about whether there was a pattern of age discrimination in the Wachovia unit supervised by Sandulli and Silva.


Plaintiff Altomare holds a master's degree in business administration from the University of Chicago, has twenty years of experience in the financial services industry, and had worked at four separate financial services firms with Defendants Sandulli and Silva before joining them at Wachovia. (Halter Decl., Ex. 1 (Altomare Dep.) at 13-14, 25)

Plaintiff first worked with Sandulli and Silva at Dean Witter in the early 1990s, where Altomare worked on structuring and marketing equity products. (Def. R. 56.1 Stmt. ¶¶ 1-2)*fn3 At Dean Witter, Altomare and Sandulli had frequent contact.*fn4 (Id. ¶ 3)

In 1992, Sandulli left Dean Witter to join Merrill Lynch's global equity derivatives desk, where Silva joined him a year later. (Id. ¶ 4) Altomare subsequently also joined Merrill Lynch, where he worked closely with Sandulli structuring and marketing equity derivatives. (Id. ¶ 5) While working at Merrill Lynch, Altomare and Sandulli socialized outside the office, and Altomare, Sandulli, and Silva attended each other's weddings.*fn5 (Id. ¶ 6)

In 1995, Altomare and Sandulli left Merrill Lynch to join the institutional structured products group at Morgan Stanley. (Id. ¶ 7) Altomare reported to Sandulli from 1997 to 1999. (Id. ¶ 8) In 2000, Silva also joined Morgan Stanley.*fn6 (Id. ¶ 9)

Altomare left Morgan Stanley in 2003, and until January 2006, focused solely on personal investments and business ventures. (Id. ¶ 12)


Sandulli and Silva left Morgan Stanley in July 2005, joining Wachovia as co-heads of the Equity Structured Products Group (the "Group"). Sandulli and Silva reported to Quinten Stevens, the head of Wachovia's Equity Division. (Id. ¶ 13) After joining Wachovia, Sandulli and Silva recruited to their new company most of the employees in their group at Morgan Stanley. (Def. R. 56.1 Stmt. ¶ 14; Pltf. R. 56.1 Counter-Stmt. ¶ 14; Halter Decl., Ex. 2 (Silva Dep.) at 32-33, Ex. 3 (Sandulli Dep.) at 41-42)

In late 2005, Sandulli and Silva discussed the possibility of hiring Altomare (Def. R. 56.1 Stmt. ¶ 16), and in early 2006, Sandulli approached Altomare about joining the Group. (Id. ¶ 17) Sandulli indicated that he had a broad mandate from the Company to grow the equity derivatives business and told Altomare that he would enter the Group as a senior member. (Id. at ¶¶ 17-18) After Sandulli had offered Altomare a position in the Group, and after the two men had negotiated the terms of Altomare's employment, Altomare met with Silva and Ajay Khanna, the head of the Equity Derivatives Trading Desk, as well as other members of the Group, some of whom Altomare knew from Morgan Stanley. (Pltf. R. 56.1 Counter-Stmt. ¶ 19; Altomare Aff. ¶ 9; Halter Decl., Ex. 1 (Altomare Dep.) at 56-57)

The parties dispute many of the details concerning Altomare's discussions with Sandulli during the recruitment process. Defendants assert that Sandulli made clear that he and Silva were co-heads of the Group (Def. R. 56.1. Stmt. ¶ 17), while Altomare claims that Sandulli described Silva as junior to Sandulli (as had been the case at Morgan Stanley). Altomare asserts that Sandulli told him that Sandulli would be "in charge." (Pltf. R. 56.1 Counter-Stmt. ¶ 17; Altomare Aff. ¶ 9; Halter Decl., Ex. 1 (Altomare Dep.) at 57-58) Similarly, Defendants assert that Altomare was hired solely to "develop new, innovative insurance products and ideas to sell to clients" (Def. R. 56.1. Stmt. ¶ 18), while Altomare claims that his duties were described as much broader, and extended to then-existing lines of business. (Pltf. R. 56.1 Counter-Stmt. ¶ 18; Altomare Aff. ¶ 8) Altomare also claims that "Sandulli promised Altomare [that] he would be promoted to co-head of the Group after the Group became comfortable with him." (Pltf. R. 56.1 Counter-Stmt. ¶ 18; Halter Decl., Ex. 1 (Altomare Dep.) at 51-53, 101-02)

In January 2006, Altomare accepted Sandulli's offer to join the Group as a Managing Director, reporting directly to Sandulli and Silva. (Pltf. R. 56.1 Counter-Stmt. ¶ 20) Pursuant to his offer letter, Altomare was to receive a salary of $200,000 with a guaranteed bonus of at least $1,175,000 in 2006. (Turnbull Aff., Ex. 8) Future bonuses were subject to Wachovia's Incentive Compensation Plan for Corporate & Investment Banking ("Plan"). (Id.)

The Plan states that [t]o be eligible to receive an incentive award under the Plan, participants must be employed on the Pay-Out Notification Date (the date on which participants are informed of the amount of their incentive award, which generally occurs after the end of the performance year, in late January of the following year. . . .

Plan participants who terminate employment, for any reason, voluntarily or involuntarily, prior to the Pay-Out Notification Date will not be deemed to have earned any award under the Plan. However, the Plan Administrator, in its sole discretion, may choose to provide an award to any participant whose employment terminates as a result of death, disability, retirement or displacement prior to the Pay-Out Notification Date. The amount of any such award will be determined in the sole discretion of the Plan Administrator, and, to receive such an award, the participant (or his/her beneficiary) must sign a general release and waiver in a form approved by the Plan Administrator. (Turnbull Aff., Ex. 9 at WF 041777-78, WF 041781-82) The Plan also states that the amount of any bonus is "determined subjectively" on the basis of, inter alia, individual and group performance and market conditions. (Id. at WF 041779)

Altomare's offer letter did not provide that Altomare would be promoted to co-head of the Group in the future. (Id., Ex. 8)

The parties dispute whether Sandulli and Silva made the decision to hire Altomare together. Defendants rely on Sandulli's deposition for this assertion (see Def. R. 56.1. Stmt. ¶ 15 (citing Halter Decl., Ex. 3 (Sandulli Dep.) at 49, 271)), but the cites offered by Defendants do not address Altomare's hiring. Altomare's deposition indicates that he does not know what Silva's role was in his hiring: "Q. And do you know whether Mr. Silva was in agreement with Mr. Sandulli in hiring you? A. Hiring me? I'm not sure at this point." (Halter Decl., Ex. 1 (Altomare Dep.) at 184) The Court concludes that Silva's involvement in Altomare's hiring presents a question of fact for a jury.


A.Duties and Job Performance

Altomare's employment at Wachovia began on February 14, 2006 -- when he was 48 years old -- and ended twenty-seven months later, on May 13, 2008.*fn7 (Def. R. 56.1 Stmt. ¶¶ 23, 59) While employed at Wachovia, Altomare was in charge of the Company's pre-existing equity hedge fund finance and OTC options hedging businesses. (Id. ¶ 31; Altomare Aff. ¶ 10) Sandulli testified that he expected Altomare to spend 30 to 50% of his time on these businesses. (Pltf. R. 56.1. Counter-Stmt. ¶ 31; Halter Decl., Ex. 3 (Sandulli Dep.) at 306) Sandulli expected that Altomare would spend the remainder of his time developing and selling new insurance-related products (Halter Decl., Ex. 3 (Sandulli Dep.) at 306), while Altomare maintains that Sandulli never told him that he was hired to focus on developing new insurance-related products. (Id., Ex. 1 (Altomare Dep.) at 47-49)

The parties disagree as to Altomare's job performance at Wachovia. There is evidence that revenues in the pre-existing Wachovia businesses -- which Sandulli expected Altomare would spend as much as 50% of his time on -- grew dramatically during his tenure. (Pltf. R. 56.1. Counter-Stmt. ¶¶ 27, 82, 83; Halter Decl., Ex. 7 (Lloyd Dep.) 35-38, 44-45) Quinten Stevens, who supervised Sandulli and Silva, testified that the businesses for which Altomare was responsible generated approximately $10 million in annual revenue. (Halter Decl., Ex. 5 (Stevens Dep.) at 88-90; Pltf. R. 56.1 Counter-Stmt. ¶ 76) The parties agree that Altomare developed new financial products in 2006 and 2007 ...

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