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Robert Bagley v. J.P. Morgan Chase & Co

July 12, 2012


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


Plaintiff Robert Bagley alleges that defendant J.P. Morgan Chase Bank, N.A. ("Chase") retaliated against him for opposing unlawful discrimination 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. Plaintiff claims that his supervisors directed him to "rate his staff's performance in an unjustified negative manner which would adversely affect the older workers who were reporting to him," and that when he complained that this practice constituted age discrimination, he was terminated. (Cmplt. ¶¶ 16, 18, 22)

Defendant has moved for summary judgment on all of Plaintiff's claims. For the reasons stated below, Defendant's motion for summary judgment will be denied.



Bagley worked for Chase and its predecessors for approximately 27 years prior to his termination on July 14, 2009. (Def. R. 56.1 Stmt. ¶¶ 1-2; Bagley Aff. ¶ 3)*fn1 At the time of his termination, Bagley was an assistant vice president and managed Chase's Treasury and Securities Services ("TSS")/Worldwide Securities Services ("WSS") business, supervising a staff of 20 employees.*fn2 (Def. R. 56.1 Stmt. ¶¶ 2, 4; Pltf. R. 56.1 Resp. ¶¶ 2, 4) All of these employees were over the age of 40, and most were over 50 years old. (Def. R. 56.1 Stmt. ¶ 4; Pltf. R. 56.1 Resp. ¶ 4; Bagley Dep. 60)

Between 2000 and his termination in July 2009, Bagley reported to Executive Director Anthony Tufano. (Def. R. 56.1 Stmt. ¶ 5; Pltf. R. 56.1 Resp. ¶ 5; Tufano Dep. 21) During the relevant time period, Tufano reported to Eric Carr, WSS Operations Manager. (Def. R. 56.1 Stmt. ¶ 6; Pltf. R. 56.1 Resp. ¶ 6; Carr Dep. 34; Bagley Dep. 40)


In late 2008, Bagley became concerned that Carr and Tufano were targeting older employees on his staff for eventual termination.*fn3 Bagley's concerns arose in the context of the 2008 year-end performance review process. Although Bagley had previously been permitted to determine the ratings for his staff, in late 2008 Tufano directed Bagley to rate four of his employees as "low meets expectations" and one employee as "Needs Improvement."*fn4 (Pltf. R. 56.1 Stmt. ¶¶ 275-77; Bagley Dep. 46-47, 138) Accordingly, Bagley had no input into the ratings for these employees, four of whom were over 50 years old. (Pltf. R. 56.1 Stmt. ¶ 280; Def. R. 56.1 Resp. ¶ 280; Bagley Dep. 46, 138)

Employees who receive a rating of "low meets expectations" or "Needs Improvement" are placed on a performance improvement plan ("PIP"), which creates an "opportunity for [Chase] to terminate them." (Bagley Dep. 74) Because four out of the five employees selected to receive low ratings in their 2008 year-end evaluations were over 50 years old, Bagley believed that the ratings mandated by Tufano reflected age discrimination. (Bagley Dep. 46-47, 138) Despite these concerns, Bagley issued 2008 year-end ratings consistent with Tufano's instructions. (Pltf. R. 56.1 Stmt. ¶¶ 282-83; Px 32-39)

Bagley's belief that Carr and Tufano were targeting older employees for termination was informed by age-related remarks made by Carr.*fn5 For example, in early 2009, Tufano told Bagley that Carr -- after reviewing an email listing the years of service of several members of Bagley's staff -- had asked Tufano, "What are you running, an old age home over there?" (Def. R. 56.1 Stmt. ¶ 53; Pltf. R. 56.1 Resp. ¶ 53; Bagley Dep. 62; Cmplt. ¶ 13) In April 2009, in reference to a 60-year-old employee on Bagley's staff, Carr asked Bagley, "Wouldn't you like to have a 30-year old with her knowledge?" (Pltf. R. 56.1 Stmt. ¶ 397; Def. R. 56.1 Resp. ¶ 397) During a May 2009 staff meeting, at which Bagley and Tufano were present, Carr asked one of Bagley's fellow managers, Annette Gallicchio -- then in her mid-fifties -- whether she was too old to do her job. (Def. R. 56.1 Stmt. ¶ 58; Pltf. R. 56.1 Resp. ¶ 58; Bagley Dep. 67-68; Gallicchio Dep. 22) Gallicchio -- who understood Carr's comment as suggesting that she had less energy than a 30-year old -- protested that she could "run circles around most thirty-year olds." (Bagley Dep. 67-68; Gallicchio Dep. 22) Bagley was also troubled by terminations of older employees in other units at Chase, which he viewed as discriminatory. (Bagley Dep. 46)

In February or March 2009 -- in preparation for the 2009 mid-year performance review -- Tufano and Carr advised Bagley that they expected him "to aggressively rate" his staff's performance. (Def. R. 56.1 Stmt. ¶ 11; Pltf. R. 56.1 Resp. ¶ 11) Based on his experience with the 2008 year-end performance review process, and Carr's age-related remarks, Bagley believed that he was being asked "to target the older workers." (Bagley Dep. 72) Bagley testified that he "was expected to rate the older workers, either an M-3 [low meets expectations] or an N [Needs Improvement], which would put them on a performance improvement plan ["PIP"]. Once you get on a performance improvement plan . . . that was the opportunity for [Chase] to terminate them." (Bagley Dep. 74) Because Bagley believed that the performance review process was being used improperly to justify adverse employment actions against older employees, he did not wish to participate in the evaluation process. (Bagley Dep. 42)

On March 25, 2009, Bagley sent an email to Carr stating that, "in the event of a downsizing within my department, I would like to be seriously considered for a severance package." (Dx 9; Bagley Dep. 42) Bagley told Carr that "[m]anaging staff has never been one of my strong suits and I would like to be able to pursue the chance to do something that does not involve managing." (Dx 9) Bagley testified that he sent the March 25, 2009 email in order to "remove [himself] from having to participate in the age discrimination through the performance review process." (Bagley Dep. 42) Prior to sending the March 25, 2009 email, Bagley had spoken with Carr once or twice about his request for a demotion or a severance package. (Def. R. 56.1 Stmt. ¶ 13; Pltf. R. 56.1 Resp. ¶ 13; Bagley Dep. 46)

On June 2, 2009, Bagley sent an email to Carr and Tufano informing them that he intended to "rate all of [his staff members] an M [Meets Expectations]" with the exception of three employees who deserved an "M1" rating. (Def. R. 56.1 Stmt. ¶ 14; Pltf. R. 56.1 Resp. ¶ 14; Dx 10) Bagley told Carr and Tufano that none of his staff deserved a ranking of "low meets expectations" or "Needs Improvement," and that if they intended to mandate such a rating "then the review/PIP process will have to be handled by someone who feels they deserve that ranking." (Dx 10; Bagley Dep. 84-85) Bagley noted that while some employees could "improve certain aspects of their performance," "none of them deserve to be put in a position where they will get no raise or possibly [be terminated]. I can't justify fitting people into categories that I feel they do not deserve." (Dx 10) Bagley also commented that his "management style may not fit in with the way the company is moving." Bagley intended this remark to communicate that he "wouldn't force [negative] rankings on older workers that didn't deserve them." (Id.; Bagley Dep. 92-93)

In a June 4, 2009 email response, Carr told Bagley that his "view on this topic [of evaluations] is not realistic given the overall direction of [Chase]. This is not a singular view just across the vault or WSS but a view across the entire firm." (Dx 11)

Bagley went on to prepare mid-year performance reviews for only eleven members of his staff. He refused to prepare reviews for the remaining nine staff members because he "didn't agree with" the ratings assigned to them, and believed that these ratings were "done because of the staff members['] ages." (Def. R. 56.1 Stmt. ¶ 17; Pltf. R. 56.1 Resp. ¶ 17; Bagley Dep. 148) Tufano and Carr completed performance evaluations for the remaining nine staff members, all of whom apparently received a rating of "low meets expectations" or "Needs Improvement."*fn6 (Def. R. 56.1 Stmt. ¶ 18; Def. R. 56.1 Resp. ¶¶ 368-69, 443, 446; Pltf. R. 56.1 Resp. ¶ 18; Pltf. R. 56.1 Stmt. ¶¶ 368-69, 443, 446; Dx 12 at PL 00102, 14; Px 66; Bagley Dep. 58; Tufano Dep. 196-97)


Beginning in late 2008, Bagley complained repeatedly to Tufano that the performance review process was being used to justify discrimination against older employees. (Bagley Dep. 44, 46-48, 77-78, 138) For example, Bagley told Tufano in connection with the December 2008 year-end performance evaluation process that he believed that Defendant was "discriminating against the older people because, first of all, [the managers] were given the rankings [for their employees]. [They] weren't even asked . . . [for their] input on them." (Bagley Dep. 46-47) Also in December 2008, Bagley told Tufano that another unit at Chase had terminated several older employees, raising concerns that Chase was discriminating against those employees based on age. (Bagley Dep. 46; Tufano Dep. 83)

Bagley also made age discrimination-related complaints to Tufano in January or February 2009 (Pltf. R. 56.1 Stmt. ¶ 387; Def. R. 56.1 Resp. ¶ 387; Bagley Dep. 62-64), and again in March or April 2009, when he told Tufano that he believed he was being asked to evaluate his staff in a manner that would adversely affect older employees. (Bagley Dep. 71, 77-79; Pltf. R. 56.1 Stmt. ¶ 389)

Bagley also complained to Tufano about Carr's age-related comments. For example, in April 2009 Bagley reported Carr's comment about one of Bagley's 60-year-old colleagues -- "Wouldn't you like to have a 30-year-old with her knowledge?" (Pltf. R. 56.1 Stmt. ¶ 397; Def. R. 56.1 Resp. ¶ 397, Bagley Dep. 64) In response to Bagley's complaints, Tufano "said there was really nothing he could do about it." (Def. R. 56.1 Stmt. ¶ 52; Pltf. R. 56.1 Resp. ¶ 52; Bagley Dep. 64-65)

On July 2, 2009, Bagley complained to Mariela Recio of Chase's Human Resources Department (Recio Dep. 31-32) that the "performance review process was geared against the older workers." (Bagley Dep. 111, 145-46)


On June 10, 2009, Carr and Tufano issued Bagley's mid-year performance evaluation. They gave Bagley an "N" rating, signifying "Needs Improvement." (Def. R. 56.1 Stmt. ¶ 19; Pltf. R. 56.1 Resp. ¶ 19; Dx 12 at PL 00102; Bagley Dep. 142) Chase contends that Bagley received this rating because he "would not perform his managerial duties" -- that is, complete performance evaluations for all the members of his staff. (Def. R. 56.1 Stmt. ¶ 19; Carr Dep. 204; Dx 12 at PL 00102) Bagley claims that "Carr and Tufano downgraded plaintiff's ranking from 'Low Meets Expectations' to 'Needs Improvement' in retaliation for ...

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