Frankina v. First Nat. Bank of Boston

• Decision Date: 01 September 1992
• Docket Number: Civ. A. No. 91-11495-C.
• Citation: 801 F. Supp. 875
• Parties: David FRANKINA, Plaintiff, v. FIRST NATIONAL BANK OF BOSTON, Defendant.
• Court: U.S. District Court — District of Massachusetts

801 F. Supp. 875

David FRANKINA, Plaintiff, v. FIRST NATIONAL BANK OF BOSTON, Defendant.

Civ. A. No. 91-11495-C.

United States District Court, D. Massachusetts.

September 1, 1992.

COPYRIGHT MATERIAL OMITTED

Denise M. Leydon, Weston, Patrick, Willard & Redding, Boston, Mass., for plaintiff.

Robert B. Gordon, Richard P. Ward, Ropes & Gray, Boston, Mass., for defendant.

MEMORANDUM

CAFFREY, Senior District Judge.

This is an action brought by David Frankina ("Frankina") against his former employer, the First National Bank of Boston ("the Bank"), alleging that the Bank unlawfully discriminated against him because of his age by terminating him in connection with a May, 1989, reduction in force ("RIF"). Frankina's seven-count amended complaint seeks statutory relief under the Massachusetts Fair Employment Practices Act, Mass.Gen.L. ch. 151B (Count I), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. (Count II), and the Massachusetts Equal Rights Act, Mass. Gen.L. ch. 93, § 103 (Count VII). The complaint also alleges common law claims of wrongful termination (Count III), breach of contract for lifetime employment (Count IV), breach of contract for preferential hiring (Count V), and breach of the implied covenant of good faith and fair dealing (Count VI).

This matter is before the Court on the Bank's motion for summary judgment on all Counts. For the following reasons, this Court concludes that the bank's motion for summary judgment should be granted on all Counts.

I.

For the purpose of this motion, the relevant facts are summarized as follows. Unless otherwise noted, the facts are undisputed.

In April 1962, Herbert Ericson offered Frankina a job as a security cage clerk, which Frankina accepted. There was no written employment contract between the Bank and the plaintiff prescribing any fixed term of employment. At the time of hire, according to the plaintiff, Ericson told plaintiff that he had a job for life so long as he did not commit a criminal act against the Bank. The plaintiff also alleges that Ericson noted that the Bank had never laid off any employees in its nearly 200 year history. Plaintiff worked at the Bank in various capacities for twenty-seven years, most recently in the Control Unit of Treasury and Banking Services's ("TBS") Capital Asset Services Group as a senior control specialist.

In 1989, in response to the prior year's net loss of thirty-six million dollars in its TBS operation, the Bank undertook to reduce costs and improve efficiency. To address operational shortcomings, such as inefficient workflow and duplication of functions, the Bank completely reorganized the Banking Services division of TBS. As a consequence, the Bank implemented a RIF throughout calendar year 1989, which eliminated 119 positions, including the plaintiff's, and allowed several hundred vacancies to remain unfilled.

The plaintiff's position was evaluated as part of the RIF in the following manner. Thomas Keane, age 54, senior operations manager of the Capital Asset Services Department, determined that two of the seven positions in the Control Unit in which plaintiff worked should be eliminated. Based on his own personal knowledge of the work performance of those in the unit and the most recent performance evaluations of the seven employees, Keane selected Edward McFarland (age 35) and the plaintiff (age 47) for termination.¹ He selected McFarland because he had the least amount of Bank experience, was new to the unit, and did not appear to have the requisite skills to carry out the duties in the reconfigured organization. In selecting the plaintiff, Keane concluded that plaintiff was a weak performer who required close supervision by management, had relatively poor work habits, experienced difficulty in completing assigned tasks, and would thereby be less qualified to perform the duties and responsibilities that would be expected of employees in the reconfigured organization.

In addition to reviewing plaintiff's performance record at the Bank, Keane compared it to the others in the unit. As noted by the defendant, plaintiff's colleagues each received commendable performance ratings in the years preceding 1989. Keane further asserts that he did not consider plaintiff's age to be relevant in selecting him as one of the two terminated employees, nor did the Bank instruct or otherwise suggest to him that older employees should be selected for layoff, or that younger ones should be retained. In his affidavit, he stressed that his "decisions were based strictly on a judgment as to the relative qualifications and skills of the Control Unit's employees." Keane Affidavit at ¶ 16.

Despite mixed performance reviews in the Bank's formal appraisal system, plaintiff disputes that he was terminated for poor performance and claims that he was a loyal employee who performed his duties satisfactorily and received merit increases and promotions during his many years of service. In support, plaintiff admits to only two "relatively poor" evaluations in these years of service. Plaintiff also disputes that age and years of service were not a factor in his termination. He asserts that he was terminated because of his age, as he was the oldest control specialist in his area with the most years of service with the Bank. Plaintiff concedes that one co-employee in his area, Millerick, was older than him at the time of the termination, but claims that Millerick was in a supervisory role and did not perform control specialist functions. As further evidence of age discrimination, plaintiff claims that other terminated employees in the RIF were also the oldest, and had the most years of service, in their departments, despite satisfactory job performances.²

Following plaintiff's termination, the Bank initially redistributed plaintiff's duties to those employees remaining in the group. Plaintiff notes that all the employees to whom his work was reassigned were younger than him, except for Millerick, who, as noted above, allegedly did not perform the duties of a control specialist. The Bank states that, after the completion of the reconfiguration in TBS, all of plaintiff's duties were reassigned to other areas. The Bank claims that plaintiff's position has been functionally eliminated, and no one has been hired as a senior control or control specialist in Capital Asset Services since his termination. Plaintiff has no knowledge that the Bank subsequently hired someone else to fill his position.

After hearing of his termination in May 1989, plaintiff participated in the Bank-sponsored RIF program, which included professional job search assistance. He also received severance pay for twelve months. Plaintiff alleges that a Bank personnel representative, Gerald Demone, told him during his exit interview that he would receive preferential treatment in the rehiring process. Plaintiff admits, however, that during this meeting he received a RIF policy manual that included a statement that terminated employees would not be given preference in rehiring. He nonetheless asserts that Demone told him that his application, as well as the applications of other terminated employees, would receive preference in the internal posting procedure at the Bank. He claims that his resume would be placed in a special folder of RIF'd employees, in which managers at the Bank would look to fill positions prior to posting the job.

The Bank claims that plaintiff was neither promised that he would be re-hired nor assured of receiving any preference over other applicants. The Bank claims that the plaintiff was given a packet of written policy materials which set forth the applicable benefits and procedures. With respect to an internal job search for terminated employees, the policy stated, "it is not the intent of this policy to offer these employees any preferential treatment over other internal or external candidates." The Bank claims that the alleged preference to which plaintiff refers was a procedure whereby his resume would be placed in a folder with the resumes of other laid-off employees for review by Bank managers or recruiters. In accordance with this procedure, Demone requested that plaintiff submit a resume for this file, and plaintiff complied.

Since termination of Frankina's employment, Bank records indicate that he has applied for two posted positions at the Bank. In both instances, another internal candidate was chosen to fill the position. The Bank claims that the chosen candidates demonstrated more relevant skills for the position and had stronger records of performance than plaintiff. One was fifty-two years of age, the other thirty-four. As for plaintiff's assertion that he was not rehired because of his age, the Bank asserts that age was not a factor in the selection process for rehiring laid off employees. Instead, it claims that re-employment was based strictly on an assessment of the applicant's relative qualifications.

In contrast to the Bank's records, plaintiff claims that during the six-month period after his layoff, he applied for fifty-nine jobs at the Bank, some of which he had performed in the past, but did not receive any offers. With respect to these positions, plaintiff has no knowledge whether the Bank ever filled these position, or the qualifications or age of the people that may have filled the positions. He further asserts that he relied on the representations of Demone that he would be given preference in re-employment with Bank, and although he made attempts to find work outside the Bank during that six-month period, he concentrated his efforts on getting rehired at the Bank.

II.

According to Fed.R.Civ.P. 56, summary judgment is appropriate "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see...