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Delaney v. Bank of America Corp.

United States District Court, S.D. New York

December 11, 2012

John DELANEY, Plaintiff,
BANK OF AMERICA CORPORATION and Bank of AmericaMerrill Lynch, Defendants.

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David J. Sack, Jonathan Honig, Feder, Kaszovitz LLP, New York, NY, for Plaintiff.

Patrick John Lamparello, III, Steven D. Hurd, Proskauer Rose LLP, New York, NY, for Defendants.


PAUL A. ENGELMAYER, District Judge.

Plaintiff John Delaney brings suit against Bank of America Corporation and Bank of America Merrill Lynch f/k/a Banc of America Securities, LLC (collectively, " Bank of America" or " BoA" ), alleging that BoA (1) violated the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 621, by terminating him; and (2) breached an oral agreement allegedly made with him in 2010, when he transferred to a different business unit within BoA. BoA moves for summary judgment. For the reasons that follow, BoA's motion is granted.

I. Background[1]

A. Delaney's Employment at Bank of America

In 1996, Delaney began working for NationsBank, a predecessor company to BoA, in the High Yield Sales Group (" High Yield" ). Lamparello Aff. Ex. A (Deposition of John Delaney) (" Delaney Dep." ) at 11. After a merger with BoA in 1998 or 1999, Delaney continued working in High Yield. Id. at 17-20.

In 2006, Delaney was transferred to a newly-formed group, the Fixed Income Middle Markets Sales Group (" Middle Markets" ), where he continued to sell high-yield products, but worked under new managers. Pl. 56.1 ¶ 8; Delaney Dep. 25-26. In Middle Markets, Delaney's compensation included a commission based on a percentage of his production revenue. Pl. 56.1 ¶ 12; Def. 56.1 ¶ 12. [2] In January 2009, BoA acquired Merrill Lynch & Co., Pl. 56.1 ¶ 15; Def. 56.1 ¶ 15, and Amy Ellis-Simon became the manager of Middle Markets, Pl. 56.1 ¶ 16; Def. 56.1 ¶ 16. In 2009, while in Middle Markets, Delaney's commissions exceeded $1.6 million. Delaney Decl. ¶ 4. That same year, his performance review from Middle Markets

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was positive, and included a rating of " exceeds/meets," the second-highest rating. Delaney Decl. ¶ 1; Delaney Decl. Ex. 1.

In March 2010, Delaney was transferred back to High Yield, Delaney Dep. 42; Pl. 56.1 ¶ 31; Def. 56.1 ¶ 31, where his salary was to be based on a salary-plus-bonus model. Delaney Dep. 47. At the time, Jeff Fortgang was the head of High Yield. Lamparello Aff. Ex. D (Deposition of Jeffrey Fortgang) (" Fortgang Dep." ) at 7-8. Steve Hollender and Gerald Walker were co-heads of Credit Sales, which encompassed High Yield, as well as other sales groups. Lamparello Aff. Ex. B (Deposition of Steven Ira Hollender) (" Hollender Dep." ) at 11-13.

In connection with his transfer back to High Yield, Delaney met with Ellis-Simon, Hollender, and Fortgang to discuss the move. Pl. 56.1 ¶ 37; Def. 56.1 ¶ 37; Delaney Dep. 42-43, 48-49. Delaney states that he voluntarily transferred to High Yield in consideration for an oral promise by these managers regarding the number and/or nature of the accounts he would be assigned in that unit. Delaney Decl. ¶ 11. In his second claim in this lawsuit, for breach of contract, Delaney asserts that BoA broke that promise. Delaney Decl. ¶¶ 11-14. The evidence relating to this alleged oral promise is reviewed in detail infra, at 513-18.

In July 2010, Delaney received a negative mid-year review. Delaney Decl. Ex. 4. In August or September 2010, BoA began a reduction in force (" RIF" ), in which it broadly evaluated the company's operations with the goal of terminating underperforming employees. Hollender Dep. 81-83; Lamparello Aff. Ex. F (Deposition of Claudine Marie Rippa) (" Rippa Dep." ) at 23-24, 27-28. In September 2010, Delaney was terminated. Delaney Decl. ¶ 20; Pl. 56.1 ¶ 77; Def. 56.1 ¶ 77. BoA informed him that he had been terminated as part of the RIF. Delaney Dep. 68-69. In contemporaneous internal emails, BoA officials stated that their selection of Delaney as a person to be terminated as part of the RIF was based on negative performance reviews and low production. See, e.g., Honig Decl. Ex. 11, at BASJD 00213.

At the time he was terminated, Delaney was 56 years old. He was the oldest member of High Yield, and was the only member of High Yield to be terminated. Delaney Decl. ¶ 20.

B. Delaney's Complaint

On November 10, 2011, Delaney filed the Complaint in this case. Dkt. 1. [3] Delaney brings two claims. The first is for discrimination in violation of the ADEA: Delaney alleges that BoA discriminated against him on the basis of age when it terminated him in September 2010. The second is for breach of contract: Delaney alleges that BoA breached an oral agreement to provide him with sufficient accounts in High Yield to enable him to obtain compensation in 2010 equal to his compensation in 2009.

On August 17, 2012, BoA moved for summary judgment as to both claims. Dkt. 25-29. On September 14, 2012, Delaney filed his opposition. Dkt. 35-38. On October 5, 2012, BoA filed its reply. Dkt. 32-33. On November 7, 2012, the Court heard oral argument on the motion.

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II. Discussion

A. Applicable Legal Standards

To prevail on a motion for summary judgment, the movant must " show[ ] that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). The movant bears the burden of demonstrating the absence of a question of material fact. In making this determination, the Court must view all facts " in the light most favorable" to the non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir.2008). To survive a summary judgment motion, the opposing party must establish a genuine issue of fact by " citing to particular parts of materials in the record." Fed.R.Civ.P. 56(c)(1); see also Wright v. Goord, 554 F.3d 255, 266 (2d Cir.2009). " A party may not rely on mere speculation or conjecture as to the true nature of the facts to overcome a motion for summary judgment," because " conclusory allegations or denials cannot by themselves create a genuine issue of material fact where none would otherwise exist." Hicks v. Baines, 593 F.3d 159, 166 (2d Cir.2010) (citation omitted). Only disputes over " facts that might affect the outcome of the suit under the governing law" will preclude a grant of summary judgment. Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986).

In the context of the ADEA, the Second Circuit " has repeatedly emphasized ‘ the need for caution about granting summary judgment to an employer ... where, as here, the merits turn on a dispute as to the employer's intent.’ " Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 101 (2d Cir.2010) (quoting Holcomb, 521 F.3d at 137). " Even in the discrimination context, however, a plaintiff must provide more than conclusory allegations and ‘ set forth specific facts showing that there is a genuine issue for trial.’ " Timbie v. Eli Lilly & Co., 429 Fed.Appx. 20, 21 (2d Cir.2011) (summ.order) (quoting Zelnik v. Fashion Inst. of Tech., 464 F.3d 217, 224 (2d Cir.2006)). To survive a motion for summary judgment, therefore, a plaintiff must do more than merely create " some metaphysical doubt." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

B. Delaney's ADEA Claim

Under the ADEA, it is unlawful " to discharge any individual or otherwise discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's age." 29 U.S.C. § 623(a). In analyzing a claim of age discrimination, courts in this circuit employ the burden-shifting framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Gorzynski, 596 F.3d at 105-06. Under that framework, a plaintiff " bears the initial burden of establishing a prima facie case of discrimination." Id. at 106 (citing McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). " If the plaintiff does so, the burden shifts to the defendant to articulate ‘ some legitimate, nondiscriminatory reason’ for its action." Id. (quoting McDonnell Douglas, 411 U.S. at 802, 93 S.Ct. 1817). Defendants' burden, however, is " one of production, not persuasion." Reeves v. Sanderson Plumbing Prods., 530 U.S. 133, 142, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000). " Once such a reason is provided, the plaintiff can no longer rely on the prima facie case, but may still prevail if she can show that the employer's determination was in fact the result of discrimination."

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Gorzynski, 596 F.3d at 106. Pursuant to Gross v. FBL Financial Services, Inc., " a plaintiff bringing a disparate-treatment claim pursuant to the ADEA must prove, by a preponderance of the evidence, that age was the ‘ but-for’ cause of the challenged adverse employment action." 557 U.S. 167, 180, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009). Age cannot have been " just a contributing or motivating factor," but must indeed have been the " but-for cause." Gorzynski, 596 F.3d at 106; see also Leibowitz v. Cornell Univ., 584 F.3d 487, 498 n. 2 (2d Cir.2009).

Here, BoA argues that: (1) Delaney has not made out a prima facie case because he has not adduced facts that give rise to an inference of age discrimination; and, alternatively, (2) BoA has identified a legitimate, non-discriminatory reason for his termination— the RIF— which Delaney has failed to show is pretextual. Def. Br. 1. The Court considers these arguments in turn.

1. Prima Facie Case

To establish a prima facie case of discrimination under the ADEA, Delaney must demonstrate that: (1) he was within the protected group of employees (those over age 40); (2) he was qualified for the position in question; (3) he experienced an adverse employment action; and (4) that action occurred under circumstances giving rise to an inference of discrimination. Bucalo v. Shelter Island Union Free Sch. Dist., 691 F.3d 119, 129 (2d Cir.2012) (citing Gorzynski, 596 F.3d at 107).

For the purposes of this motion, it is undisputed that Delaney makes out the first three elements: He (1) is over age 40; (2) was qualified for his position; and (3) was subject to an ...

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