Rovtar v. Union Bank of Switzerland, 92 Civ. 3706 (CBM).

• Decision Date: 14 January 1994
• Docket Number: No. 92 Civ. 3706 (CBM).,92 Civ. 3706 (CBM).
• Citation: 852 F. Supp. 180
• Parties: Stephen A. ROVTAR, Plaintiff, v. UNION BANK OF SWITZERLAND, Defendant.
• Court: U.S. District Court — Southern District of New York

852 F. Supp. 180

Stephen A. ROVTAR, Plaintiff, v. UNION BANK OF SWITZERLAND, Defendant.

No. 92 Civ. 3706 (CBM).

United States District Court, S.D. New York.

January 14, 1994.

Goldfarb & Arrandt, William Teleisha, New York City, for plaintiff.

Jackson, Lewis, Schnitzler & Krupman, Mark S. Mancher, New York City, for defendant.

MEMORANDUM OPINION

MOTLEY, District Judge.

Plaintiff Steven A. Rovtar ("Rovtar"), a former employee of defendant Union Bank of Switzerland ("UBS"), brings this action for damages, declaratory and injunctive relief arising from his discharge. Plaintiff alleges violations of the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq. and Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et seq. Additionally, plaintiff seeks damages for breach of an alleged employment contract.

After plaintiff properly exhausted his administrative remedies, he filed a complaint with this court.¹ Pursuant to Rule 56 of the Federal Rules of Civil Procedure, defendant has moved for summary judgment. For the reasons set forth below, this court grants defendant's motion for summary judgment on all claims.

BACKGROUND

Mr. Rovtar, a fifty year-old white male at the time he filed his complaint in this matter, was employed by UBS from April 1984 until April 1991. Comp. ¶ 8.² From 1984 until 1986, plaintiff was assigned to the bank's Internal Services Section, where he was responsible for building maintenance and small construction projects. In 1986, plaintiff was transferred to the Premises Section where he remained until his termination in 1991. Def.'s Exhibits, Ex. 2C.³

UBS is a global financial institution with its corporate headquarters in Zurich, Switzerland and several foreign branches. The New York branch, established in 1974, employs approximately 1,300 individuals, the overwhelming majority of which are United States citizens. Def.'s Exhibits, Thompson Aff. ¶ 7.

In addition to its United States employees, defendant also temporarily assigns expatriates or trainees from its corporate headquarters to perform services at various branches, including the New York branch. Def.'s Memo.Supp.Summ.J. at 6. Expatriates are primarily senior employees who are assigned to foreign branches for specific periods ranging from three to five years. Trainees are junior employees assigned abroad to broaden their personal experience and professional skills. These assignments generally last between twelve and eighteen months. Even though they are assigned to a foreign branch, such personnel remain employees of the Zurich bank due to the temporary nature of their assignments. Def.'s Exhibits, Thompson Aff. ¶¶ 3, 4.

In the New York branch, the Premises Section is directly responsible for handling the housing needs of expatriates and trainees. As a supervisor of the Premises Section, Rovtar was primarily responsible for "coordinating the physical relocation of trainees and expatriates." This included, in order of importance: 1) arranging housing for trainees; 2) organizing and procuring furniture for their apartments; 3) performing various administrative functions; 4) inspecting apartments; and 5) supporting expatriates in their housing needs. Plaintiff directly reported to Mr. Max Keller, Head of the Premises Section and directly supervised Ms. Arcadia Cruz, an Administrative Assistant. Def.'s Exhibits, Ex. 2C.

It is undisputed that due to various complaints made by the trainees about their lodging, Mr. Beat Bucher, Vice President of Personnel, conducted a study to examine the bank's current housing policies. On June 11, 1990, Bucher issued a report entitled "Housing Procedures UBS New York" wherein he proposed three alternatives to the bank's current policies. In short, Bucher proposed that UBS: 1) purchase rental property which could be leased directly to expatriates and trainees; 2) provide a housing allowance and allow the employees to search for their own housing; or 3) hire an outside real estate agency to manage all housing matters. Def.'s Exhibits, Ex. 2E at 4, 5.

After addressing the concerns of the trainees as well as the administrative burdens previously experienced by the bank, Bucher ultimately recommended that UBS "handover our Intern trainee housing matters to an outside real estate company.⁴" Def.'s Exhibits, Ex. 2E at 6. UBS accepted Bucher's recommendation and Acocella & Company ("Acocella") was hired on December 18, 1990. Def.'s Exhibits, Ex. 2F; Thompson Aff. ¶ 14. Under the UBS contract, Acocella would be responsible for, inter alia: 1) negotiating all leases and renewals for trainees, subject to approval by UBS; 2) assisting UBS expatriates in finding adequate housing when needed; 3) signing all leases approved by UBS as its agent; 4) acting as liaison between UBS and the respective landlords; 5) furnishing the apartments for UBS employees; and 6) handling problems and complaints as they might arise. Def.'s Exhibits, Ex. 2F ¶¶ A.4.1-5, B.

The Bucher report did not address plaintiff or his performance. Further, neither plaintiff's age or national origin appear to have been considered in any of the proposals or the ultimate recommendation. However, by deciding to transfer all housing matters to an independent real estate agency, defendant clearly eliminated plaintiff's position with UBS. Thus, plaintiff was terminated in April 1991, the act which gave rise to plaintiff's complaint and the present motion for summary judgment.

DISCUSSION

I. Summary Judgment

A court may grant summary judgment only "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 that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute regarding a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202, 212 (1986).

Where, as in this case, the nonmoving party has the burden of proof at trial, the moving party need only demonstrate that there is a lack of evidence to support the nonmovant's claim. Celotex Corp. v. Catrett, 477 U.S. 317, 323-25, 106 S.Ct. 2548, 2552-54, 91 L.Ed.2d 265, 273-75 (1986). Once the movant has established a prima facie case demonstrating the absence of a genuine issue of material fact, the nonmoving party must provide enough evidence to support a jury verdict in its favor. Anderson, 477 U.S. at 249, 106 S.Ct. at 2510-11, 91 L.Ed.2d at 212; Bryant v. Maffucci, 923 F.2d 979, 982 (2d Cir.1991). At that point, the court must determine whether the evidence presents a "genuine factual issue that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson, 477 U.S. at 250, 106 S.Ct. at 2511, 91 L.Ed.2d at 213. Based upon the evidence submitted by the parties on defendant's motion, there are clearly no genuine issues of material fact. Accordingly, defendant is entitled to summary judgment as a matter of law.

II. Applicable Statutes and Burden of Proof

The ADEA makes it unlawful for an employer "to fail or refuse to hire or to discharge 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)(1) (1993). Moreover, Title VII provides that "it shall be an unlawful employment practice for an employer — (1) to discharge any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1) (1993). While an employer is prohibited from terminating an employee because of that person's age or national origin, neither statute precludes a termination for legitimate business purposes. Price Waterhouse v. Hopkins, 490 U.S. 228, 239, 109 S.Ct. 1775, 1784-85, 104 L.Ed.2d 268, 280 (1989).

As plaintiff admits, the order and allocation of proof in discrimination cases are well-established. In McDonnell-Douglas Corp v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the Supreme Court developed a three-part analysis for allocating the burden of proof in such cases. To prove a claim of discrimination, plaintiff must first establish a prima facie case of discrimination, which can be accomplished by proving: 1) that he was a member of a protected class (i.e., at least over forty years of age); 2) that he was qualified for his position; 3) that he was discharged notwithstanding his qualifications under circumstances giving rise to an inference of discrimination. Id. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 677; Russo v. Trifari, Krussman & Fishel, Inc., 837 F.2d 40, 43 (2d Cir.1988).

Second, if plaintiff establishes his prima facie case, the burden then shifts to defendant to show "some legitimate, nondiscriminatory reason for the employment decision." Id. at 802, 93 S.Ct. at 1824, 36 L.Ed.2d at 678. Defendant is not required to prove its reason to meet its burden, but merely articulate a legitimate explanation for its actions. Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 256-60, 101 S.Ct. 1089, 1095-97, 67 L.Ed.2d 207, 217-219 (1981).

Third, if defendant articulates a legitimate nondiscriminatory explanation, plaintiff must "be afforded a fair opportunity to show that the stated reason for his termination was in fact pretext." McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. at 1825, 36 L.Ed.2d at 679. However, as the Supreme Court further articulated in St. Mary's Honor Ctr. v. Hicks, ___ U.S. ___, ___, 113 S.Ct. 2742, 2749, 125 L.Ed.2d 407, 418-19 (1993), merely "rejecting the defendant's proffered reason" without more is not sufficient to prove that it is a pretext for discrimination under the McDonnell Douglas standard. To the contrary, "a reason...