Argued January 14, 2014
On appeal from a judgment of the United States District Court for the Southern District of New York (Paul A. Engelmayer, J.), entered on December 11, 2012, granting summary judgment in favor of plaintiff's former employer on plaintiff's claims of age discrimination, under the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq., and breach of contract.
JONATHAN HONIG, Feder Kaszovitz LLP, New York, NY, for Plaintiff-Appellant.
PATRICK J. LAMPARELLO, III (STEVEN D. HURD, on the brief), Proskauer Rose LLP, New York, NY, for Defendants-Appellees.
Before: WINTER, WESLEY and HALL, Circuit Judges.
Plaintiff-Appellant John Delaney (" Plaintiff-Appellant" or " Delaney" ) appeals from the December 11, 2012 judgment of the United States District Court for the Southern District of New York (Paul A. Engelmayer, J.) granting summary judgment in favor of Appellant's former employers, Defendants-Appellees Bank of America Corporation, and Merrill Lynch, Pierce, Fenner & Smith, Inc. (collectively " Defendants-Appellees" or " BoA" ), on his claims of age discrimination, under the Age Discrimination in Employment Act of 1967 (" ADEA" ), 29 U.S.C. § 621 et seq., and breach of contract. For the reasons that follow, we affirm the judgment of the district court.
Delaney began working for BoA's predecessors in 1988 and continued to be employed by them through multiple mergers and acquisitions until his termination in
September 2010. At all relevant times, Delaney remained an at-will employee. From 1996 to 2006, Delaney worked in the High Yield Sales Group in which he predominantly sold " high yield products." His compensation included a base salary and, where applicable, an annual award of discretionary incentive compensation.
In 2005, Delaney was transferred to the Fixed Income Middle Markets Sales Group (" Middle Markets" ). Although employees of this group " were expected to sell a wider array of products and cover smaller accounts," Delaney continued to sell the same high yield products. He also remained in the same physical location with other members of the High Yield group. Delaney, however, was assigned to a different reporting line and became eligible for compensation under the Middle Markets Sales Compensation Plan whereby he received an annual salary and quarterly commission on the basis of his production credits. While working for Middle Markets, his commissions exceeded $1.6 million in 2009. That same year, Delaney also received a rating of " exceeds/meets" expectations on his annual performance review.
In March 2010, Delaney was transferred back to the High Yield group. According to Delaney, this transfer " was a reward for [his] outstanding work developing middle markets accounts into higher revenue, institutional accounts." Appellant Br. 6. Delaney also claims that BoA " agreed that his compensation would not suffer from the transfer because he would be awarded sufficient accounts to generate production credits so that his compensation would remain at least level and, hopefully, increase." Id. at 7. For BoA, however, this transfer was the result of an institutional re-organization aimed at removing all High Yield sales personnel from Middle Markets, which closed in 2012. As a result of this transfer, although Delaney remained in the same physical location and continued to manage the same accounts, his compensation reverted to the one associated with High Yield employees, i.e., a base salary and, if eligible, a discretionary incentive compensation award. Delaney also received two additional accounts upon his transfer.
In July 2010, Delaney received a negative mid-year performance review. According to the review, his production had decreased by seven percent, while the High Yield group's production as a whole had increased by twenty percent. The weaknesses cited included that he was a " momentum sales man, [who] could improve [his] credit skills," had " difficulty multi-tasking," " should cover less accounts," and " need[ed] to focus" . The review also noted a concern as to whether Delaney was able to handle the accounts assigned to him.
The following month, as part of a company-wide reduction-in-force (" RIF" ), High Yield managers were instructed to select underperforming employees whose dismissal would have the least impact on the business going forward. Delaney's performance continued to suffer. He was ranked 136th across all BoA sales personnel for the year in September 2010, and his performance in the High Yield group was the worst of all employees at his level. Delaney, along with 418 other BoA employees, was selected for inclusion in the September 2010 RIF process. BoA terminated Delaney's employment that same month. ...