766 F.3d 163 (2nd Cir. 2014), 13-184-cv, Delaney v. Bank of Am. Corp.

Docket Nº:13-184-cv
Citation:766 F.3d 163
Opinion Judge:Per Curiam:
Party Name:JOHN DELANEY, Plaintiff-Appellant, v. BANK OF AMERICA CORPORATION, MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., [*] Defendants-Appellees
Attorney: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.
Judge Panel:Before: WINTER, WESLEY and HALL, Circuit Judges.
Case Date:September 05, 2014
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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766 F.3d 163 (2nd Cir. 2014)

JOHN DELANEY, Plaintiff-Appellant,

v.

BANK OF AMERICA CORPORATION, MERRILL LYNCH, PIERCE, FENNER & SMITH, INC., [*] Defendants-Appellees

No. 13-184-cv

United States Court of Appeals, Second Circuit

September 5, 2014

Argued January 14, 2014

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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.

OPINION

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Per Curiam:

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.1 (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.

Background

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

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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. At the time, Delaney was fifty-six (56) years old, the oldest member of the High Yield group and the only member of that group to be terminated.

Following his termination, Delaney brought this employment discrimination action against BoA, alleging claims of age discrimination in violation of the ADEA

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and breach of contract. With respect to the breach of contract claim, Delaney alleges that BoA breached an oral promise made to him " that his compensation would not suffer from [his] transfer [to the High Yield group] because he would be awarded sufficient accounts to generate production credits so that his compensation would remain at least level and, hopefully, increase." Appellant Br. 7. BoA moved for summary judgment, which the district court granted after determining that Delaney failed to establish a prima facie age discrimination case. Then assuming arguendo that Delaney had established a prima facie case, the district court further ruled that Delaney's evidence was insufficient " to permit a reasonable fact-finder to conclude that he would not have been terminated but for his age," and thus that he failed to establish that BoA's legitimate nondiscriminatory reason--that Delaney was terminated as part of a RIF and selected based on his poor performance--was a pretext for age discrimination. Delaney v. Bank of Am. Corp., 908 F.Supp.2d 498, 513 (S.D.N.Y. 2012). Having dismissed Delaney's federal claim, the district court, pursuant to 28 U.S.C. § 1367, exercised supplemental jurisdiction over his state law claim and determined that none of the conversations and statements identified on the record constituted an enforceable contract. Id. at 517-18. Judgment was entered in favor of BoA. Delaney timely appealed.

Discussion

On appeal, Delaney argues that in granting summary judgment in favor of BoA, the district court failed to view the evidence in the light most favorable to him as the non-moving party. Specifically, Delaney contends that if the district court had properly applied this Court's decision in Weiss v. JP Moran Chase & Co., 332 F.Appx. 659, 661 (2d Cir. 2009) (summary order), to the proffered evidence, it would have concluded that BoA's legitimate nondiscriminatory reason lacked credence and was instead a pretext for age discrimination. Delaney also challenges the district court's decision to exercise supplemental jurisdiction over his contract law claim and further contends that if the district court had properly considered the submitted evidence, it would have concluded that he had established a breach of contract claim against BoA.

We review de novo a district court's grant of summary judgment. Allianz Ins. Co. v. Lerner, 416 F.3d 109, 113 (2d Cir. 2005). In so doing, we " construe the facts in the light most favorable to the non-moving party and . . . resolve all ambiguities and draw all reasonable inferences against the movant." Aulicino v. N.Y.C. Dep't of Homeless Servs., 580 F.3d 73, 79-80 (2d Cir. 2009) (internal quotation marks omitted). " A dispute about a 'genuine issue' exists . . . where the evidence is such that a reasonable jury could decide in the non-movant's favor." Beyer v. Cnty. of Nassau, 524 F.3d 160, 163 (2d Cir. 2008). We uphold a grant of summary judgment " if the evidence, viewed in the light most favorable to the party against whom it was entered, demonstrates that there are no genuine issues of material fact and that the judgment is warranted as a matter of law." Global Network Commc'ns, Inc. v. City of New York, 562 F.3d 145, 150 (2d Cir. 2009).

I.

We consider first Delaney's age discrimination claim. It is well established that the burden-shifting framework set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973) applies to claims bought under the ADEA. Gorzynski

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v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir. 2010). " Under McDonnell Douglas, the plaintiff bears the initial burden of establishing a prima facie case of discrimination." Id. Once this burden is met, the defendant must then " articulate 'some legitimate, nondiscriminatory reason' for its action." Id. (internal quotation marks omitted). " The defendant need not persuade the court that it was actually motivated by the proffered reason[ ]. It is sufficient if the defendant's evidence raises a genuine issue of fact as to whether it discriminated against the plaintiff." Tex. Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 254, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981) (citation omitted). When the employer meets its burden, " the plaintiff can no longer rely on the prima facie case," Gorzynski, 596 F.3d at 106, but " must prove that the employer's proffered reason was a pretext for discrimination," McPherson v. N.Y.C. Dep't of Educ., 457 F.3d 211, 215 (2d Cir. 2006). Since the Supreme Court's...

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