Murray v. Xerox Corp., 274

• Decision Date: 04 February 1987
• Docket Number: D,No. 274,274
• Citation: 811 F.2d 118
• Parties: Joseph MURRAY, and Joseph Murray as parent and natural guardian of Mary Margaret Murray, Cathleen M. Murray, Joseph F. Murray, and Megan E. Murray, infants under the age of 18 years, Plaintiffs, Joseph Murray, Plaintiff-Appellant, v. XEROX CORPORATION, Defendant-Appellee. ocket 86-7554.
• Court: U.S. Court of Appeals — Second Circuit

Page 118

811 F.2d 118

Joseph MURRAY, and Joseph Murray as parent and natural

guardian of Mary Margaret Murray, Cathleen M.

Murray, Joseph F. Murray, and Megan E.

Murray, infants under the age

of 18 years, Plaintiffs, Joseph Murray, Plaintiff-Appellant, v. XEROX CORPORATION, Defendant-Appellee.

No. 274, Docket 86-7554.

United States Court of Appeals, Second Circuit.

Argued Oct. 31, 1986.

Decided Feb. 4, 1987.

Jeanne M. Colombo, Rochester, N.Y., for plaintiff-appellant.

Stevens L. Ingraham, Rochester, N.Y. (Harris, Beach, Wilcox, Rubin and Levey, Rochester, N.Y., of counsel), for defendant-appellee.

Before MANSFIELD, ^* MESKILL and MINER, Circuit Judges.

MESKILL, Circuit Judge:

Plaintiff Joseph Murray appeals from a judgment of the United States District Court for the Western District of New York, Telesca, J., following an order granting defendant Xerox Corporation's motion for summary judgment as to all claims and dismissing the complaint. Murray, a fourteen year employee of Xerox Corporation, brought this action in the district court alleging, under New York law, that Xerox made fraudulent and negligent misrepresentations concerning promotions and transfers within the company. Murray also alleged that he was the victim of employment discrimination on the bases of age, sex, race and Vietnam veteran's status. The district court found that Murray had failed to raise a genuine issue of material fact as to any of his claims.

On appeal, Murray argues that material issues of fact exist with respect to his common law claims of fraudulent and negligent misrepresentation. Murray also contends that summary judgment was improper as to his claims of employment discrimination. We conclude, however, that summary judgment was properly granted because

Murray failed to raise a genuine issue of material fact as to any of his theories for recovery. We affirm the district court's dismissal of Murray's complaint.

BACKGROUND

For the purposes of this appeal we accept the factual allegations in the complaint as true. Patrick v. LeFevre, 745 F.2d 153, 158 (2d Cir.1984). Plaintiff Joseph Murray began his employment career with Xerox Corporation in 1967. During a fourteen year period, Murray exhibited steady professional growth and development, starting as a grade 4 sales trainee in the mid-Ohio branch office and progressing to a grade 10 position as a High Volume Account Executive. In February 1979, Murray fully anticipated a promotion from grade 10 to a grade 11 managerial position. Based on performance evaluations, however, Murray's supervisor elected to transfer Murray to another grade 10 position with an increase in salary. Murray objected to this transfer and decided to invoke Xerox's open door policy to plead his case for promotion directly to the regional vice president.

As Murray prepared to board a plane for the meeting, Wade Cassidy, branch manager of the mid-Ohio office, and Lorin Powell, branch sales manager, intercepted Murray and requested that he postpone his flight. Cassidy and Powell, after extensive conversations with Murray at the airport, persuaded Murray to accept a transfer to Rochester, New York. The parties agreed that Murray would receive a grade 10 position in Sales Training and Development and, after completing two or three years of employment at Rochester, would be promoted to a managerial grade 11 position. This understanding was memorialized in a letter from Wade Cassidy to Jack Kelly, Murray's future supervisor, which read in pertinent part:

If you would set up the interviews as we agreed for the purpose of validating Joe for a Staff Position in either the Sold Program or Sales Training, I would be very grateful. Again, you have my commitment that we would absolutely take Joe back into Mid-Ohio as a National Account Manager or the Branch Supply Specialist after 2 or 3 years in Headquarters.

J. App. at 696. Apparently satisfied with the new arrangement, Murray sold his house in Ohio and moved his family to Rochester, New York. Murray never again attempted to invoke the open door policy offered by Xerox.

Upon his arrival in Rochester, Murray experienced conflicts with his new supervisor. Eventually he left Sales Training and Development to join the Financing Business Center. Murray's supervisors in the financing department, David Zirkle and James Burkey, promised to use their best efforts to secure Murray a promotion to grade 11 and prepared the necessary papers. In spite of their efforts, however, the promotion sought by Murray never materialized.

Murray finally requested a transfer back to the mid-Ohio office in the fall of 1980. In a letter to James Burkey, Murray expressed his deep dissatisfaction with the series of events in Rochester and with his treatment at the hands of Xerox management. Burkey, believing that the tone of the request was inappropriate, strongly recommended that Murray redraft the letter in more positive terms. Burkey also assured Murray of his best efforts to secure the transfer back to mid-Ohio if the letter was resubmitted. Murray followed Burkey's recommendation and submitted a revised letter requesting a transfer by December 1, 1980. As of January 1981, however, Murray had not been transferred to Ohio.

At the time of Murray's request for a transfer, Wade Cassidy was replaced by Michael Martone as branch manager of the mid-Ohio office as part of a nationwide Xerox reorganization. New positions were created in the mid-Ohio office as a consequence of the reorganization which Murray would have found suitable. However, because of the delay in his transfer application In December 1981, Murray commenced this action by filing a complaint with the Equal Employment Opportunity Commission, which issued a right to sue letter in July 1982. Murray's complaint in the district court alleged that he had been the victim of fraudulent and negligent misrepresentations by Xerox employees in making promises for promotions and transfers that management did not intend to honor. Murray, a male caucasian, also alleged age discrimination, sex discrimination, reverse racial discrimination and discrimination based on his status as a Vietnam veteran. Because Murray's employment discrimination claims are baseless, we discuss only the merits of the fraudulent and negligent misrepresentation claims.

these positions were filled by other Xerox employees before Martone became aware of Murray's desire for a transfer. Martone expressly refused to honor Cassidy's promise for promotion, citing the lack of vacancies in his staff, but did agree to create a special grade 10 position for Murray in which he would report directly to Martone as branch manager. Although Murray was to receive his former grade 10 salary in the new position, the personnel department classified Murray as a grade 4 sales trainee. With this, Murray resigned in June of 1981, claiming that he had been "constructively discharged" by Xerox.

DISCUSSION

Murray essentially claims that three promises were made to him by Xerox employees with a fraudulent intent not to comply with them or with knowledge that Xerox employees had no power to perform what was promised. On each score, however, Murray has failed to raise a genuine issue of material fact for trial.

To defeat a summary judgment motion, the non-moving party must demonstrate the existence of material issues of fact to be resolved at a trial on the merits. Williams v. Smith, 781 F.2d 319, 323 (2d Cir.1986). In reviewing Judge Telesca's grant of summary judgment, we are guided by the Supreme Court's most recent pronouncements on the subject. The Supreme Court has stated that "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.... Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., --- U.S. ----, ----, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986). Again, in Matsushita Electrical Industrial Co. v. Zenith Radio Corp., --- U.S. ----, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986), the Supreme Court stated that "the issue of fact must be 'genuine' ... [w]hen the moving party has carried its burden under Rule 56(c), its opponent must do more than simply show that there is some metaphysical doubt as to the material facts." Id. at ----, 106 S.Ct. at 1356.

In order to succeed in a fraudulent misrepresentation claim under New York law, Murray must prove by a preponderance of the evidence (1) that Xerox made a misrepresentation (2) as to a material fact (3) which was false (4) and known to be false by Xerox (5) that was made for the purpose of inducing Murray to rely on it (6) that Murray rightfully did so rely (7) in ignorance of its falsity (8) to his injury. See Brown v. Lockwood, 76 A.D.2d 721, 432 N.Y.S.2d 186, 193 (2d Dep't 1980) (citation omitted). Additionally, Murray must demonstrate that promises were made to him with a present intent not to perform the promised acts. Under New York law, a failure to perform promises of future acts is not fraud unless there exists an intent not to comply with the promise at the time it is made. See Chase Manhattan Bank, N.A. v. Perla, 65 A.D.2d 207, 411 N.Y.S.2d 66, 68 (4th Dep't 1978). It is against this backdrop that we examine the legal sufficiency of Murray's claims.

A. Promises Made By Wade Cassidy

Murray claims that an issue of fact exists with respect to promises of promotion A second ground also exists upon which a verdict could be directed against Murray. Under New York law, fraudulent intent is not demonstrated by evidence of mere non-performance of a promise. See Perma Research and Development Co. v. Singer Co., 410 F.2d 572, 576-77 (2d Cir.1969). As we stated: "Except for repeated references to [defendant's] unsatisfactory performance under the December...