Summary
granting employer's motion for summary judgment on age discrimination claim, despite decisionmaker's comments that she wanted an "energetic young buck," and sought a "young, energetic, fresh approach"
Summary of this case from Pasha v. William M. Mercer Consulting, Inc.Opinion
00 CIV. 7998 (DLC)
April 18, 2002
Michael Delikat, Aimee Meltzer Florin, Orrick, Herrington Sutcliffe LLP, New York, NY. Attorney For Plaintiffs.
Laurence J. Lebowitz, Kozupsky Lebowitz, LLP, New York, NY. Attorney for Defendants.
OPINION AND ORDER
In this age discrimination action, plaintiff Daniel Buompane ("Buompane"), formerly a Vice President at defendant Citibank, N.A. ("Citibank"), alleges that Citibank and his last supervisor, Cynthia Colitti ("Colitti"), terminated his employment in violation of the Age Discrimination in Employment Act of 1967, 29 U.S.C. § 621 et seq. ("ADEA"), the New York State Human Rights Law, N.Y. Exec. L. § 290 et seq., and the New York City Human Rights Law, Admin. Code of the City of New York § 8-101 et seq. Buompane also alleges intentional infliction of emotional distress. Defendants have moved for summary judgment. Buompane has cross-moved to amend his complaint. For the reasons that follow, defendants' motion is granted and Buompane's motion is denied.
By stipulation and order executed by the parties on December 6 and December 7, 2001, and so ordered by the Court on December 10, 2001, plaintiff's claims against Laura Hasslein, John McCain, and Ann Romaine were dismissed with prejudice.
Background
The following facts are either undisputed or are alleged by plaintiff and accepted as true for purposes of this motion. Citibank is a national banking association with its headquarters in New York City. From March 1994 to October 1998, Buompane was a Vice President in Citibank's Global Mutual Funds Group. In October 1998, Citibank's parent company Citicorp, Inc. ("Citicorp") concluded a merger (the "Merger") with Traveler's Group ("Traveler's"). After the Merger, Buompane continued as a Vice President in the newly formed SSB Citi Asset Management Group (the "SSB Citi Group") until his employment was terminated in August 1999. From May 1997 to August 1999, Colitti was his supervisor.
Buompane Begins Work at Citibank
Buompane was born on September 1, 1946. Prior to his employment at Citibank, he was an executive at a series of financial institutions. He also spent periods self-employed as a real-estate developer and structured finance deal-maker. He received a B.A. and J.D. from St. John's University.
Buompane was forty-seven when he was hired in 1994, by Dave Cariseo ("Cariseo"), the head of Citibank's Global Mutual Funds Group, to work as a wholesaler of Citibank's mutual fund products to institutional investors. Buompane reported to Robert Tousignant ("Tousignant"), a sales manager in charge of wholesaling to both retail and institutional investors. At the time, Buompane and Colitti were co-workers. Colitti had responsibility for mutual fund product development and reported to Dennis Madigan ("Madigan"), who was in charge of the U.S. Mutual Funds group. Buompane and Colitti occasionally made sales calls together and had a good working relationship. They also socialized together from time to time outside of the office and on one occasion spent a weekend together with their spouses at Colitti's cabin in upstate New York.
The Formation of the Investment Products and Distribution Group
In late 1995, Citibank formed a new group known as the Investment Products and Distribution Group ("IDP"), of which the Global Mutual Funds Group became a part. As a result of the reorganization, Tousignant assumed Buompane's institutional wholesaling duties. Buompane, who then began reporting to Madigan, was left without a specific position or defined job responsibilities — a condition that would continue until the termination of his employment in 1999. In late 1995 and 1996, Buompane worked on various short-term and long-term projects and participated in various task forces and committees.
Also as a result of the reorganization, Colitti began reporting directly to Cariseo, to whom Buompane's supervisor Madigan also reported. Beginning in late 1995, Colitti worked on global product strategy for the Global Mutual Funds Group.
Sometime in 1996, Peter Meenan ("Meenan") replaced Cariseo as the head of the Global Mutual Funds Group. Colitti then reported to Meenan, as did Madigan. In early 1997, Madigan left the Global Mutual Funds Group to become second in charge at Citicorp Investment Services ("CIS"), the brokerage group that constituted the only distribution channel through which the Global Mutual Funds Group sold its products. According to Buompane, Madigan offered to take Buompane with him to CIS, but upon moving to CIS, advised him that a hiring freeze was in effect and that no positions were available. Buompane remained in contact with Madigan and continued to express interest in a position within CIS, but to Buompane s disappointment, Madigan never offered him any such position.
After Madigan's departure for CIS, Buompane reported directly to Meenan. Buompane told Meenan that he considered himself qualified to succeed Madigan as the head of the U.S. Mutual Funds group and wanted to be considered for the position. According to Buompane, Madigan agreed that Buompane had the background for the position and that he would consider Buompane for it.
Colitti's Promotion to Head the U.S. Mutual Funds Group
In May 1997, Colitti rather than Buompane was promoted to succeed Madigan. Meenan informed Buompane that Colitti was given the promotion because it would be difficult to "jump" Buompane two employment grade levels and Colitti's background in fund administration made her more qualified for the position than him, since he had had no such background. Buompane did not inform Meenan that he disagreed with him.
Colitti assumed ultimate supervisory responsibility over approximately 20 employees, including Buompane, who now reported directly to Colitti. of the three other employees who reported directly to Colitti, one of them, William Walker ("Walker") (d/o/b 5/24/44), was two years older than Buompane, while another, Camille Meade ("Meade") (d/o/b 1/28/57), was 40 years old.
June 17, 1997 Meeting
On June 17, 1997, Colitti met with Buompane to discuss Buompane's role in the U.S. Mutual Funds group she now led (the "June 1997 Meeting"). Later that day, Buompane made notes of the content of the discussion because he was, in his words, "stunned by [Colitti's] comments, absolutely stunned." Buompane's notes, handwritten on memo pad paper bearing his letterhead, are dated June 17, 1997 and read in full:
Today I spoke to Cindy Colitti about my extensive [background] in sales, m[ar]k[e]ting, [and de]al structuring. I [sai]d that the wholesalers need more focused, aggressive, experienced management which w[oul]d help them upgrade skills and increase their effectiveness and Global Funds product sales. Cindy responded by saying she wanted an "energetic, young buck" in Global Funds to take-on these responsibilities.
I said: "I guess that implies that I am an unenergetic, old bull."
Cindy was clearly embarrassed by her comment; she didn't address my comment and clumsily changed the subject.
(Emphasis supplied). Although Colitti denies using the phrase "energetic, young buck," defendants assume for the purposes of this motion that she did so. According to Colitti, she stated to Buompane at the June 1997 meeting that he did not have enough experience in wholesaling or credibility with the wholesalers to run the entire wholesaling group. At the time, Walker, who is two years older than Buompane, was the head of the wholesaling group and remained in that position at least until the date Buompane's employment was terminated.
For the remainder of 1997, Buompane engaged in various projects, including an analysis of wholesaler compensation and staffing in the mutual fund industry, research in tax law changes impacting mutual funds, and the organization of a tax law seminar for financial consultants. Buompane desired to undertake other projects, but Colitti advised him that overall funding for IDP was being cut, so that they would have "to cool it on certain projects." At the time, Buompane accepted Colitti's assessment of the level of resources available to them as accurate and made in good faith.
Although Buompane did not consider the tasks he was assigned by Colitti to be "menial," he was generally disappointed that even after the promotion of Colitti to head the U.S. Mutual Funds group, he was still not being used to what he believed was his full potential. As he stated in his deposition testimony, he believed that his career was stagnating:
Q So it is fair to say that the word was generally out that you were not happy about reporting to Ms. Colitti and you were looking to leave to join Mr. Madigan's group?
A I don't know if the word was I wasn't happy to — reporting to Cindy. It wasn't about Cindy, it was about my career and the word was certainly out that I was not being utilized and, quite frankly, it was quite obvious I wasn't being utilized.
Q But you felt that you weren't being utilized even before the time that Ms. Colitti was brought in to be your boss?
A Me, along with other people before that time because of a lot of the confusion in the group, but I did feel I was underutilized at that point.
Q So nothing really changed after Ms. Colitti came in with respect to being underutilized, did it?
A I think what changed was now that someone had a clear defined responsibility for running a particular group in the investment department and there were clearcut lines as to what this person was responsible for, namely Cindy, and nothing happened. Before that it was not as clearcut.Buompane's 1997 Performance Review and Bonus
In October 1997, Colitti completed a written evaluation of Buompane's performance for the period January 1997 through October 1997 (the "1997 Performance Review"). The evaluation was generally positive. Under the heading "Employee Strengths," Colitti listed Buompane's "[e]xtensive experience in most aspects of the investment products, services and distribution business" and his "[s]trong desire to assume greater responsibilities and challenges that are commensurate with experience, skills training and abilities." Under the heading "Developmental Needs," Colitti stated that Buompane "[n]eeds to be given greater responsibility and challenge to enable him to contribute at a higher level to IPD initiatives." Under the heading "Supervisor Comments," Colitti discussed Buompane's assignments for the period and complimented the level of energy he devoted to their completion. She implied, however, that he needed to conform his ambition to the realities of the Global Mutual Fund Group's business and his position in it. Colitti's comments are quoted here in full:
In his business development position, Dan spent much of the year focusing on third party distribution initiatives which included developing business assessments of various third party distribution channels as well as developing third party compliance guidelines. Dan also actively participated in the business development events for CitiSelect to be rolled-out through the current IPD/CIS distribution channel. Dan displayed a high level of flexibility and adaptability to be able to contribute to the variety of business activities he was assigned. He also consistently puts a high level of energy against his assignments and is highly goal oriented. Dan needs to work to balance his strong desire to achieve dramatic results with the practicality of where the current IPD business in term of its stage of development [sic]. In doing so, Dan should work to achieve realistically obtainable results while planning to phase in more aggressively and heavily resourced programs as the product line and business infrastructure evolves.
In 1998 we will work to develop well-defined objectives in areas of third party and internal business development that can provide for the achievement of strong business results through highly focused activities.
Both Colitti and Meenan signed the performance review.
In his deposition testimony, Buompane states that he did not at the time believe that the 1997 Performance Review was inaccurate or unfair. He did, however, believe that he was not given the chance in 1997 to show his full potential:
Q Did you disagree with how you were ranked or rated during [1997]?
A At some level I did disagree, but I really didn't believe I was given the opportunity to show specific performance on specific things aside from doing business plans and reports and things like that, so, I guess my answer is kind of ambiguous. No, I didn't disagree with it, but I don't think I was given a shot to really show anything.
In conjunction with the 1997 Performance Review, Colitti approved a bonus of $30,000 for Buompane, whose salary at the time was $120,000 per year. This represented a $5,000 increase over the bonus he had received the year before from Madigan.
Darrin Gitlitz's Hire
In November 1997, Colitti, in consultation with Meenan, hired Darrin Gitlitz ("Gitlitz") away from CIS to become a Vice President of Product Research and Strategy in the Global Mutual Funds Group. For several years, Colitti and Meenan had been working closely with Gitlitz, most recently to analyze competitors' product lines and develop a strategy for the Global Mutual Fund Group's own product development. Gitlitz approached Colitti and Meenan to propose his transfer. Both Colitti and Meenan were highly interested in bringing Gitlitz into their group not only because he had a thorough knowledge of the mutual funds industry, but more importantly, because he had a detailed understanding of and extensive contacts in CIS, the Global Mutual Fund Group's only distribution channel. In her deposition testimony, Colitti states: "It was not just me. It was Peter Meenan who was very excited to be able to bring him in based on his background. But he had years of experience working in our primary/only distribution channel."
Gitlitz (d/o/b 10/5/61) was thirty-six years old when he transferred into the Global Mutual Funds Group. He reported directly to Colitti, as did Buompane, and was hired at the same salary as Buompane's. Because the Global Mutual Funds Group was under a hiring freeze, Gitlitz's transfer was made possible in large part by the resignation of Sean McKeown, who was in charge of the services and operations section of the U.S. Mutual Funds group. Colitti promoted Thomas Holt ("Holt") from within services and operations to replace McKeown, and filled the vacancy in the U.S. Mutual Funds Group's headcount with Gitlitz. Holt (d/o/b 9/19/45) was a year older than Buompane.
Buompane did not have or express any interest in Gitlitz's position before Gitlitz was hired because at the time of the hire, it was not clear to Buompane what Gitlitz's role would be within the Group. After Gitlitz was hired and it became clearer what Gitlitz would be doing, however, Buompane developed a strong belief that he was better qualified for Gitlitz's job. In his deposition testimony, Buompane stated:
I was involved at Citibank for three years at that time in the mutual fund industry, and 15 years before that I was involved in the investment industry looking at investments, approving investments, structuring investments both legal and financial aspects of it.
Although he held this belief, Buompane does not recall expressing to anyone within the Group that he was better qualified to perform Gitlitz's job. Nor does he recall having a good understanding either before or after Gitlitiz's hire of Gitlitz's background, other than that it "was essentially, in the research area." Colitti never considered Buompane for Gitlitz's position because she believed that Buompane did not have the experience for the position.
Buompane's 1998 Performance Objectives
From December 1997 to March 1, 1998, Colitti was on maternity leave, and Buompane reported to Meenan. In February 1998, Buompane prepared for Meenan, with a copy to Colitti, a memo listing his business goals for that year. He began the memo by acknowledging the funding problems then besetting the Global Mutual Funds Group:
Pursuant to our February 2nd, Department planning session, it was agreed that I would undertake to accomplish five goals for 1998, with the caveat that the current funding freeze precludes the material attainment of any of these goals, as well as, most other goals identified and committed to by others attending the meeting.
Meenan received Buompane's memo favorably, although he criticized the way Buompane referred to his fifth goal for the year, headed `Re-introduce my third-party intermediary business plan at the appropriate time.' Meenan wrote: "I hate it when you call it `my' plan."
By March 1998, when Colitti returned from maternity leave, IDP was, in Colitti's words, "imploding around us." In her deposition testimony, she describes an organization in a state of severe dislocation, lacking resources and shedding personnel:
There were hiring freezes, there was no budget, there was only budget to do the very main things that had to be done in the organization to maintain it.
And so the world had changed, and I had to then take some time. As I got back to look at assigning projects or [sic] to anybody in the group, I had to realign the group, make sure that people were using the resources, which were limited, and trying to make the most impact we could, given the circumstances, which meant that many of the organizations around us were actually being disbanded or integrated back into some of the consumer business. . . . .
I had to cut back and stop, in some cases.
. . . .
There were many people let go from the IDP.
Notwithstanding the condition of the IDP, Colitti assigned Buompane a series of objectives in 1998, which he characterized in his deposition testimony as "important." These objectives included the promotion of proprietary mutual funds to Citibank employees and the development of a series of training seminars entitled "How to Attract Investment Assets with Public Seminars.
The Meraer Between Citicorp and Traveler's
In April 1998, Citicorp and Traveler's announced their plans to merge. Because Traveler's subsidiary Salomon Smith Barney ("SSB") had a larger, more developed mutual fund group, members of Citibank's Global Mutual Fund Group were concerned about whether they would keep their jobs and what their role would be in the newly merged entity. As Colitti states in her deposition, the upheaval in the Global Mutual Fund Group only worsened:
So given the circumstances of no budget, no spending, limited product line, being merged with another very large organization who had a lot more funds and a lot more people, a lot more activity, you know, that in context I mean, we did as a group what we could do with the resources we had, and we focused on the projects and the businesses we had.
In this environment, Buompane continued to look outside of the Global Mutual Funds Group for positions elsewhere in the Citibank structure. On one occasion, Buompane met with Barbara Frasier, the Chief Executive Officer of CIS and Madigan's superior, to discuss with her the possibility of transferring to CIS.
Several times through the remainder of 1998, Buompane met with Colitti to express his concerns about what he termed his "underutilization." Buompane made notes of many of these meetings. At a June 3, 1998 meeting, Buompane stated to Colitti his belief that, based on his experience, he, and not Walker, should lead the wholesalers. His notes of the meeting are quoted here in full:
I informed her about my lunch w/ Barbara Frasier regarding the possibility of me working at CIS.
Cindy was concerned about what I might have said about my underutilization in Global Funds — a subject I have discussed with Cindy on no fewer than 1/2 doz[.] ocassions [sic] during the past year or so.
I told Cindy that after repeated efforts to become more involved in GF activities, I couldn't understand why I wasn't involved in more activities, based on my extensive experience and past senior mgt[.] accomplishments.
Cindy said there weren't senior positions in G.F. (note: She already brought in Darrin Gitlitz as U[.]S[.] Product Mgr[.] — at a higher compensation, title and grade letter ranking.)
To this comment, I pointed out, as I have several times over the past 10-12 months, that I could enhance the performance and sales of our GF wholesalers.
Again, as she has done several times during the past year, Cindy referred to wanting to see what else was available in the marketplace and said that she wanted a "young, energetic, fresh approach" in her sales mgr.
This comment was reminiscent of her wanting a "young buck" for senior positions in G.F., as she said last year shortly before bringing in Darrin Gitlitz, who is handling many activities that based on my experience and background, I could have easily handled. Darrin is my junior by 15 years.
(Emphasis supplied).
In September or October of 1998, Colitti gave Buompane new responsibilities for offshore fund product management, which Buompane characterized as important. Buompane continued to feel underutilized, however. On September 24, 1998, Colitti and Buompane discussed this over lunch. As he indicates in his notes of the lunch, Buompane began to suspect that his age was a factor contributing to his underutilization:
I discussed my underutilization w/ Cindy — related to my responsibilities here —
I pointed out — again — as I had several times in the past w/ Cindy — that my extensive marketing, financial structuring, legal background was not being utilized. She agreed that others in our group — with much less experience and achievements were more engaged than I.
She assured me she w[oul]d try to get me engaged in meaningful Global Funds activities and conceded (unsolicited) several times during the conversation that it was a "short coming [sic] of her management" capability that was at fault.
(Note! —
(Again, I must wonder if my age is the reason here — it certainly cannot be my experience, attitude or desire.)
In October 1998, the Merger was formally concluded. The Citibank Global Mutual Funds Group merged with SSB's mutual funds group to form the SSB Citi Group. SSB's Laurie Hesslein ("Hesslein"), whom Buompane did not depose, was appointed the head of U.S. Mutual Funds for the SSB Citi Group and became Colitti's direct superior. Buompane does not dispute that in late October or November 1998, Colitti and Hesslein began to review the positions of the twenty staff members of the U.S. Mutual Funds group and to discuss the need to achieve headcount reductions.
At an October 8, 1998 meeting, Colitti explained to Buompane the reorganization resulting from the Merger. In his notes of the meeting, Buompane recorded that he again took the opportunity to discuss with Colitti his underutilization and his desire to take Walker's job. He also noted that he refused to work under Gitlitz when Colitti proposed that he do so:
Again, I spoke to Cindy about my underutilization and asked to be more actively engaged. . . . Before I said anything she told me not to suggest that I manage the wholesalers. (It wasn't my intention to so suggest, although based on my background and underutilization it would be an obvious consideration in light of comments by others — Jenn [illegible], Darrin Gitlitz, Ken Fliegel, Alice Leopold — that Wholesalers need a full-time, experienced, manager, a role Bill Walker cannot fulfill adequately because of his need to cover a territory and his Salt Lake City home base.)
. . . .
She then apologized for her "weak management skills" in not engaging me more actively.
. . . .
I gave her several ideas on how to reorganize the group which she seemed open to (i.e. — org[.] by fund group, not vehicle) but alluded to fact [sic] that I might work under Darrin — which I told her w[oul]d be unacceptable since I have substantially more experience and education — something she has not utilized.
As she had at their September 24 meeting three weeks earlier, Colitti placed some of the blame for Buompane's underutilization on her own shortcomings as a manager.
At some point in October 1998, Andrew Shoup, who was in charge of funds administration, told Colitti that Buompane was maligning her to people in his group and in front of people in her own group. On October 23, 1998, Colliti removed Buompane from a project on which he was collaborating with Gitlitz. Buompane's notes of the event are quoted here in full:
At 4:45 Cindy came into my office and said that she didn't think Darrin and I sh[oul]d be working together on the same endeavor (i.e. — U[.]S[.] Sales Dev.) This, of course, after she informed Darrin and me, on several separate occasions that she wanted us to divide responsibility for areas Darrin was working on.
Now (the third reassign. in 4 mos[.]), she decides she wants me to be the "Off-[S]hore Fund Product Mgr."Plaintiff's 1998 Bonus
At a January 27, 1999 meeting (the "January 1999 Meeting"), Colitti told Buompane that his bonus for 1998 would be $20,000. Buompane pointed out that this was $10,000, or one-third, less than what he had been given for 1997. As Buompane's notes of the meeting indicate, Colitti explained that she was docking his bonus for his disloyalty:
When I pointed this out to her she said it was only a "little less" than last year's (1/3 less isn't "a little" was my response).
She said she gave higher bonuses to those who were more "loyal." When I asked her what this meant she said it meant that I was exploring other options in the bank during 1998.
I made her aware of my activities during 1998, regarding my inquiries within Citibank because of Cindy's past comments about looking to give more responsibility to younger, less experienced people.
At this meeting today, I told her I felt that I was being penalized because of her unwillingness to fully engage me based on my experience and career track record.
I asked here if there was anything that she asked me to do that I didn't successfully complete and she responded "No," it was more of a "loyalty issue."
In her deposition testimony, Colitti states that she also sought by the lower bonus "to trigger to Dan . . . that . . . it is time for you to take the initiative to go find something that you want to do," mainly because many of the functions of the SSB Citi Group were being performed by other groups in the newlymerged organization and she no longer had fulfilling work for him to do.
Colitti Recommends the Termination of Buompane's Employment
On February 8, 1999, less than two weeks after Colitti's meeting with Buompane regarding his 1998 bonus, Colitti called Vanessa Henley ("Henley"), a Human Resources Generalist for the SSB Citi Group, to request Human Resources review and approval of her decision to "job discontinue" two individuals in her organization, Buompane and Robert Heyssel ("Heyssel"). Heyssel was thirty-six years old at the time (d/o/b 3/25/59). Henley's contemporaneous notes of the telephone discussion indicate that Colitti sought to terminate Heyssel's employment because he was suffering from a dependency that adversely affected his job performance. Henley's notes also indicate that Colitti sought to terminate Buompane's employment because his duties had been absorbed by existing staff at SSB and he was "difficult to fully engage," with the result that he "becomes a challenge" and is "negative and talks w[ith] other people." According to Henley's notes, Colliti stated that Buompane's "skills do not match" and that the discontinuance was not "not due to poor performance, but rather to "restructuring."
Henley informed Colitti that these were legitimate business reasons to discontinue Buompane's employment and that she would convey Colitti's request to higher-level human resources personnel for approval. Among the personnel to whom Henley spoke was her direct supervisor, Ann Romaine ("Romaine"), Senior Human Resources Generalist for the SSB Citi Group. In her deposition testimony, Henley recalls telling Romaine that:
Cindy [Colitti] and I had spoken. She had not been able to keep Dan fully engaged. A lot of the responsibilities had been transferred over to the Smith Barney side of the business, and that managers, she was one of the few managers who was being asked to eliminate jobs in her department. And that she had taken, you know, time to go over this to figure out where she could actually eliminate jobs, and one of the things that she had come up with was Bob Heyssel and Dan[iel Buompane's] position.
Romaine told Henley not to process the proposed job discontinuances until Romaine reviewed the situation with her own direct supervisor John McCain ("McCain"), the Senior Human Resources Officer for the SSB Citi Group.
Because Heyssel had been referred to his position by senior management, the decision to terminate his employment was not made for several weeks. In late March, Romaine informed Henley, who then informed Colitti, that Buompane's discontinuance could proceed. On March 30, 1999, Henley sent Colitti the template document for Buompane's Job Discontinuance Notice (the "Notice Template").
Buompane's Acre Discrimination Complaint
By memo dated March 26, 1999 (the "March Memo") and addressed to McCain, Buompane formally complained for the first time of age discrimination by Colitti. In the two-page memo, Buompane writes that "I am striving to salvage what might remain of my professional career and dignity, after an extended and continuing 23-month assault on both, by my supervisor, Cynthia Colitti." Buompane listed the reasons why he believed Colitti's behavior towards him was motivated by age bias, among them:
1. My age, 52, and the fact that I am the second or third oldest member of our group (Global Mutual Funds) that consists of 15 to 20 investment professionals.
2. Comments, referring to my age, made by Ms. Colitti on a number of occasions. In two separate instances, among others recorded in writing contemporaneously to the utterances, Ms. Colitti specifically referred to her desire to hire a "young buck" and wanting a "fresh, young, energetic approach" in her management group when I spoke to her about being considered for senior positions.
3. The fact that she has not engaged me in any meaningful activities despite my repeated entreaties to be more professional challenged and engaged. I have even offered, and have been consistently rebuffed by Ms. Colitti, to assist members of our group junior to me. This treatment has caused me embarrassment, humiliation and damage to my professional career, as evidenced by the negative impact Ms. Colitti's actions have had on my 1998 annual bonus.
(Emphasis supplied). Later in the memo, Buompane states that "I have been relegated to a professional backwater by her [Colitti] for the past 23 months, while being forced to suffer both damage to my career and personal humiliation, as less experienced, younger professionals' careers have flourished." (Emphasis supplied).
Upon receiving the March Memo, McCain asked Romaine and Henley to conduct an investigation into the allegations contained in the memo. Henley did not learn of the March Memo until after she had sent the Notice Template to Colitti. Henley immediately called Colitti to tell her to hold off on the discontinuance of Buompane's employment until his allegations had been investigated.
On April 6, 1999, Romaine and Henley met with Buompane. Buompane's extensive notes of the meeting indicate that he spoke of Colitti's "abusive management style" and her "latest tactic which is to totally ignore me and sending others (Darrin Gitlitz) to conduct offshore investment meetings in Mexico City." (Buompane's emphasis). Buompane also complained that "I have never [received] any stock bonuses and that my grade level `U' ranking is well below what others with substantially less industry experience have received." (Same). Buompane's notes indicate that he then asked Romaine if Colitti's "comments quoted in that memoconstituted acre bias along with her other enumerated actions towards me, and Ann Romaine's response was `Yes'!" (Same). To Romaine's question concerning what Buompane wanted, he recorded: "I told her I would not accent a lateral move because of the severe damage already done to my career by Cindy, but that I would consider a serious senior position." (Same).
Some time after Romaine and Henley's April 6 meeting with Buompane, Henley interviewed Colitti, who denied making any remark to Buompane about wanting a "young buck" to head the wholesalers group. Henley then interviewed Gitlitz, who stated that he observed no conduct by Colitti against Buompane or any other employee that would indicate age bias. Henley also briefly interviewed Shoup, who also knew of nothing to suggest discriminatory treatment of Buompane.
On May 3, 1999, Romaine and Henley met with Buompane to inform him that they were unable to substantiate his age discrimination allegations. Romaine in particular attributed Buompane's treatment to Colitti's weak management skills, not to any age bias on her part.
The next day, on May 4, 1999, Buompane sent an e-mail to Romaine proposing settlement terms for him to leave his employment, including one year's full compensation (bonus plus salary), continuation of benefits during the settlement payment period, "[d]isengagement from Citigroup as a retiree," and "[t]o facilitate my career re-establishment efforts, retention of my current business phone number, voice mail, a computer and an office, during the term of the disengagement package." Henley responded that Citibank's job discontinuance policy did not allow for such terms.
Buompane's Job Discontinuance
Shortly after meeting with Buompane on May 3, Henley arranged a meeting between Buompane and Hesslein to explore the possibility of locating a position for Buompane elsewhere within the SSB Citi Group. On May 11, 1999, Buompane faxed his career "profile" to Hesslein and wrote on the transmittal sheet: "[U]pon your review of [the profile's] contents, it should be apparent that based on my experience and background, I have been grossly mismanaged and underutilized." The next day, on May 12, 1999, Buompane met with Hesslein. His notes of the meeting indicate that Hesslein was not sure where, if anywhere, to place him:
She asked me what my ideal job would be — I responded that running a business — which I have done a number of times in the past — such as CIS — She said that wd[.] be a position she wd[.] want.
Laurie [Hesslein] said it wd[.] be difficult to place me in a senior position that matched my experience because of my lack of exposure over the past few years — I told her that that is precisely the problem that I am now dealing with because of Cindy's actions.
On June 8, 1999, Henley met with Buompane formally to give him his Job Discontinuance Notice. At the meeting, Henley asked Buompane if he would consider working with Colitti in another position. Buompane responded that he would not, since "she severely damaged my career an[d] she is the reason for my career problems." Buompane was given a notice period through August 31, 1999, and six months severance, through February 29, 2000. Heyssel's position had been discontinued a month earlier, in May 1999.
DISCUSSION
Summary judgment may not be granted unless the submissions of the parties, taken together, "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Rule 56(c), Fed.R.Civ.P. The substantive law governing the case will identify those issues that are material, and "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., 477 U.S. 242, 248 (1987). The moving party bears the burden of demonstrating the absence of a material factual question, and in making this determination the Court must view all facts in the light most favorable to the nonmoving party. See Azrielli v. Cohen Law Offices, 21 F.3d 512, 517 (2d Cir. 1994). When the moving party has asserted facts showing that the nonmovant's claims cannot be sustained, the opposing party must "set forth specific facts showing that there is a genuine issue for trial," and cannot rest on the "mere allegations or denials" of his pleadings. Rule 56(e), Fed.R.Civ.P. See also Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995). In deciding whether to grant summary judgment, this Court must, therefore, determine (1) whether a genuine factual dispute exists based on the evidence in the record and (2) whether the facts in dispute are material based on the substantive law at issue.
I. Buompane's Discriminatory Termination of Employment Claim
Under the ADEA, it is "unlawful for an employer . . . to discharge any individual or otherwise discriminate against 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). Courts analyzing discrimination claims under the ADEA apply the three step burden-shifting framework established by McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1972). See Tarshis v. Riese Org., 211 F.3d 30, 35 (2d Cir. 2000).
Under McDonnell Douglas, a plaintiff must first establish a prima facie case of discrimination. To state a prima facie case of discrimination under the ADEA, Buompane must show that, at all times relevant to the action: (i) he was a member of the protected class; (ii) he was qualified for the job; (iii) he suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination. Byrnie v. Town of Cromwell, Bd. of Educ., 243 F.3d 93, 101 (2d Cir. 2001). "To make out a prima facie case is not a demanding burden." Greenwav v. Buffalo Hilton Hotel, 143 F.3d 47, 52 (2d Cir. 1998). Upon establishing a prima facie case of discrimination, the burden shifts to the employer to articulate a legitimate, non-discriminatory reason for the employment action. Byrnie, 243 F.3d at 102. "The defendant's burden is also light. The employer need notpersuade the court that it was motivated by the reason it provides; rather, it must simply articulate an explanation that, if true, would connote lawful behavior." Greenway, 143 F.3d at 52 (emphasis in original). If the employer has met its burden, the plaintiff bears the ultimate burden of showing that defendant intentionally discriminated against the plaintiff. Reeves v. Sanderson Plumbing Products, 530 U.S. 133, 143 (2000); Byrnie, 243 F.3d at 102.
In the context of a summary judgment motion, a court "should examine the record as a whole, just as a jury would, to determine whether a jury could reasonably find an invidious discriminatory purpose on the part of an employer." Byrnie, 243 F.3d at 102. An employer that has put forth nondiscriminatory reasons for its employment action is entitled to summary judgment "unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." James v. New York Racing Ass'n, 233 F.3d 149, 154 (2d Cir. 2000).
Buompane has stated a prima facie case of discriminatory termination of employment based on the two comments allegedly made by Colitti: her statement in June 1997 that she wanted an "energetic, young buck" to fill a position Buompane coveted, and her statement a year later in June 1998 with respect to the same position that she wanted a "young, energetic, fresh approach in her sales manager." Taken together, these comments are sufficient to give rise to an inference of discriminatory intent. Cf.Ostrowski v. Atlantic Mutual Insurance Co., 968 F.2d 171, 182 (2d Cir. 1992) ("`[S]tray' remarks in the workplace by persons who are not involved in the pertinent decisionmaking process . . . may suffice to present a prima facie case under the framework set forth" in McDonnell Douglas).
Defendants have met their burden of articulating a legitimate, non-discriminatory reason for the termination of Buompane's employment. Specifically, defendants argue that Buompane's employment was terminated because he had been made redundant by the Merger in 1998, if not by the formation of IDP three years earlier in 1995. Buompane's only response in his Opposition is that "there is nothing in the record to indicate that Colitti was being forced to reduce headcount." Defendants need not produce evidence that Colitti was "forced" to reduce headcount, however, in order to support their claim that Buompane was let go because he had been made redundant. Rather, defendants need only show that Colitti terminated Buompane's employment in an effort to reduce redundancies in her organization rather than out of discriminatory animus. Defendants have produced evidence, uncontroverted by Buompane, that this was the case. Defendants have shown, and Buompane has not disputed, that beginning in October 1998, Hesslein and Colitti began to discuss headcount reductions in light of redundancies created by the Merger. The record also reflects that Colitti's request for review and approval of Buompane's discontinuance was framed in terms of her inability to find work for him and her belief that most of his responsibilities had been absorbed by other personnel in SSB Citi Group.
Because defendants have articulated a legitimate, nondiscriminatory reason for the termination of his employment, Buompane must present sufficient evidence of intentional discrimination to support a jury verdict in his favor. "[S]tray remarks, even if made by a decisionmaker, do not constitute sufficient evidence to make out a case of employment discrimination. . . . [S]uch comments, without more, cannot get a discrimination suit to a jury." Danzer v. Norden Sys. Inc., 151 F.3d 50, 56 (2d Cir. 1998) (emphasis in original). Buompane must present "other indicia of discrimination." Id. If he is able to do so, then "the remarks can no longer be deemed `stray,' and the jury has a right to conclude that they bear a more ominous significance." Id. Buompane's alleged other indicia consist of (1) the hiring of Gitlitz, fifteen years Buompane's junior, (2) Buompane's own alleged "underutilization," (3) the absence of objective criteria guiding the decision to terminate Buompane's employment, and (4) the fact that he was the only individual in his group whose employment was terminated for reasons other than job performance.
Buompane presents as evidence of discriminatory intent Colitti's appointment of the younger Gitlitz to the position of Vice President of Product Research and Strategy. At the same time, Buompane acknowledges that Gitlitz "ostensibly had better skills for the position." Defendants have presented uncontroverted evidence that Gitlitz was better qualified for the position to which he was assigned, not only because of his knowledge of the mutual fund industry, but more importantly because of his thorough familiarity with CIS. Moreover, defendants have presented uncontroverted evidence that Meenan, against whom Buompane has made no allegation of discrimination, was instrumental in pushing for Gitlitz's transfer from CIS. Finally, notwithstanding his own suspicions at the time and his unsupported allegations in his submissions, Buompane was not denied a promotion by Gitlitz's hire. Defendants have again presented uncontroverted evidence that Gitlitz was hired at the same salary level and reporting line as Buompane. Given the undisputed evidence of his superior qualifications, Gitlitz's age is insufficient to support an inference that his appointment is evidence of discrimination against Buompane.
In his Complaint, Buompane does not articulate a failure to promote cause of action, nor does he imply one in his Opposition Memo. Rather, he offers the hiring of Gitlitz only as evidence to support the proposition that his termination was motivated by discriminatory animus.
With respect to his alleged "underutilization," Buompane has presented no evidence that, as he writes in his Opposition, Colitti was "continuously assign[ing him] projects that underutilized his skills and experience." In fact, in his deposition testimony, Buompane consistently asserted the contrary. He characterized as "important" many of the projects Colitti assigned to him. Furthermore, Buompane admitted that even before he began to report to Colitti, he felt underutilized by his supervisors, none of whom he is now accusing of age discrimination. The undisputed evidence is that Buompane's travails began in 1995 — four years before the termination of his employment — with the formation of the IDP, which led in effect to the demotion of Buompane's supervisor Tousignant to assume Buompane's duties. Madigan became Buompane's supervisor and failed at that time to find a new place for Buompane in the Global Mutual Fund Group's hierarchy. These events predated by a year and a half Colitti's promotion to be Buompane's supervisor. After Madigan's departure for CIS, Meenan became Buompane's supervisor and also failed to define for him a specific role in the group. Finally, defendants have presented uncontroverted evidence, including evidence from Buompane's own memos of the time, that the Global Mutual Funds Group's general state of dislocation and limited resources during all relevant times was the primary factor limiting his utilization. As Buompane stated at the beginning of his 1998 performance objectives memo, he "would undertake to accomplish five goals . . . with the caveat that the current funding freeze precludes the material attainment of any of these goals, as well as, most other goals identified and committed by others attending the meeting." (Emphasis supplied). Thus, Buompane has presented no evidence to raise an issue of fact that Colitti's choice of assignments for him were discriminatory. The undisputed evidence is that Colitti assigned Buompane important tasks, and that he had functioned as an employee "without portfolio" since 1995, for reasons that had nothing to do with discrimination.
Buompane argues that Colitti was given no objective criteria by which to determine which, if any, jobs should be discontinued in the wake of the Merger, so she was left to use "her own discriminatory subjective criteria to terminate Buompane." Buompane thereby urges that there is a presumption that, in the absence of objective criteria, any subjective criteria for termination are per se pretextual. Buompane fails to cite, nor has research uncovered any case in support of this proposition. In fact, the Second Circuit has long held that, by itself, the use of subjective criteria does not support an inference of discrimination.Lieberman v. Gant, 630 F.2d 60, 67 (2d Cir. 1980) (hiring and promotion). Moreover, it is well-established that a court may not "act as a `super personnel department' that second guesses employers' business judgments," Byrnie, 243 F.3d at 103 (citation omitted), so long as those judgments, be they subjective or otherwise, are not made with discriminatory intent. Id. See also Tarshis, 211 F.3d at 37 (ADEA does "not grant courts authority to second-guess the wisdom of corporate business decisions."). Buompane has failed to raise a question of fact regarding either the need for Colitti to reduce personnel or the legitimacy of any of the criteria used in the decision to eliminate his position. Buompane has presented no evidence to raise a question of fact regarding any of the reasons for his termination that Colitti articulated to Henley, to wit, that Buompane's duties had been absorbed by existing staff, that his skill's did not match her department's needs, the restructuring, and Buompane's disloyalty. In such circumstances, the fact that the criteria could be characterized as "subjective" is not sufficient to create an inference of discrimination.
Finally, Buompane argues that pretext is shown in the fact that Buompane was the only individual in his group whose job was terminated for reasons other than performance. This is not sufficient, however, to raise a question of fact as to whether age discrimination motivated Colitti's decision to terminate his employment. of the four direct reports Colitti retained at the time she decided to terminate Buompane's employment, two were older than Buompane and a third was, at the age of forty-one, in the age group protected under the ADEA. See 29 U.S.C. § 631(a) (limiting the prohibitions under the ADEA to "individuals who are at least 40 years of age"). Again, it is undisputed that the Merger required Colitti to reduce her staff and that she and Hesslein had begun to discuss those reductions in the Fall of 1998. Buompane was the only person in Colitti's group without defined duties. Buompane has not identified any person whose job should have been discontinued in lieu of his. In these circumstances, his age is insufficient, even in combination with stray remarks, to support a finding of discrimination.
What Buompane's case amounts to, then, is two stray remarks by his supervisor, the first of which preceded the termination of his employment by two years, the second by a year. Four months after allegedly making her "energetic, young buck" comment at the June 1997 Meeting, Colitti's performance review of Buompane complimented him on how he "consistently puts a high level of energy against his assignments." Soon after allegedly making her "young, energetic, fresh approach" comment in June 1998, Colitti assigned to Buompane responsibility for offshore product management, which he characterized as "important." At all relevant times, Colitti retained several employees Buompane's age or his senior, and in the case of Holt, offered a substantial promotion to one employee who was older by a year than Buompane. As already noted, Buompane is unable to identify any significant responsibilities that Colitti could have assigned to him without firing someone else and reassigning their duties. The only position he does identify as one which should have gone to him went instead, two years earlier, to an individual whom all evidence shows to have been better qualified for it. Ultimately, in his thinly-argued submissions, Buompane has offered little more than the same conclusory statements that he repeatedly made to Colitti, that given his "skills and experience he deserved better. Such bald assertions, without more, are not sufficient to support a finding that the termination of his employment was discriminatory.
Buompane's evidentiary submissions are also notably lacking. His deposition evidence consists of his own deposition, and the depositions of Colitti and Henley. Buompane did not depose Hesslein, Meenan, Madigan, Gitlitz, Walker, or anyone else at Citibank other than Colitti and Henley. Buompane's documentary evidence consists of copies of his notes of his meetings with Colitti, with Henley and Romaine, and with Hesslein, a copy of his March 1999 Memo to McCain, an employment search list, a copy of a pamphlet given to clients of the SSB Citi Group, and an assortment of his medical records. Moreover, Buompane's Rule 56.1 statement, to which he refers in his opposition as a "statement of material facts not in dispute," does not expressly controvert any of the allegations in defendants' Rule 56.1 statement, but rather restates most of them as part of his own telling of the facts.
II. Retaliation Claims
The McDonnell Douglas burden-shifting regime also applies to plaintiff's retaliation claims. Slattery v. Swiss Reinsurance America Corp., 248 F.3d 87, 94 (2d Cir. 2001). Accordingly, if plaintiff establishes a prima facie case of retaliation, the burden shifts to defendant to provide a neutral reason for the adverse employment action, and plaintiff carries the burden of proving retaliation. To establish a prima facie case of retaliation under the ADEA, a plaintiff must show that: "(1) the plaintiff was engaged in an activity protected under the ADEA; (2) the employer was aware of the plaintiff's participation in the protected activity; (3) the plaintiff was subject to an adverse employment action; and (4) there is a nexus between the protected activity and the adverse action taken." Wanamaker v. Columbian Rope Co., 108 F.3d 462, 465 (2d Cir. 1997).
Buompane has failed to make out a prima facie case of retaliation because he has failed to show any causal nexus between his protected activity and the termination of his employment. In his complaint, Buompane alleged that he engaged in activity protected under the ADEA when "[i]n March 1999 [he] filed a formal complaint with . . . McCain regarding Colliti's conduct," and that he subsequently received a Job Discontinuance Notice in retaliation for that complaint. Colitti, however, called Henley on February 8, 1999, to request the discontinuance of Buompane's job, a call which predated by six weeks his March 26, 1999 letter to McCain.
III. Buompane's Motion to Amend
Having learned that Colitti made her decision to terminate Buompane's employment before March 1999, Buompane now moves to amend his complaint on the ground that, as he writes in his Opposition, "[d]iscovery revealed . . . that before making a formal complaint, Buompane complained directly to Colitti about his concerns of age discrimination." Specifically, Buompane alleges that he engaged in activity protected under the ADEA at the January 1999 Meeting with Colitti and that Colitti terminated his employment in retaliation for his engaging in that activity.
Rule 15, Fed.R.Civ.P., governs the amendment of pleadings. Rule 15(a) instructs that leave to amend should be "freely given." Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 106 F.3d 11, 18 (2d Cir. 1997). Leave to amend should be denied, however, where the proposed amendment would be futile, if defendants have demonstrated undue delay, bad faith, or dilatory motive, or where defendants would suffer undue prejudice. Dluhos v. Floating and Abandoned Vessel, 162 F.3d 63, 69 (2d Cir. 1998) (citing Foman v. Davis, 371 U.S. 178, 182 (1962)). Where the plaintiff seeks to amend the complaint after an inordinate delay it bears the burden to explain that delay. MacDraw v. CIT Group Eguipment Financing, 157 F.3d 956, 962 (2d Cir. 1998). "One of the most important considerations in determining whether amendment would be prejudicial is the degree to which it would delay the final disposition of the action."Krumme v. Westpoint Stevens Inc., 143 F.3d 71, 88 (2d Cir. 1998) (citation omitted) Amendment is especially prejudicial when discovery has been completed and a summary judgment motion has been filed by the defendant. Id.
Buompane offers no reasonable explanation for his delay in filing a motion to amend. The facts which he claims are newly discovered were known to him before filing his complaint. He has not alleged that his own notes of the January 27, 1999 were somehow made available to him for the first time through the course of discovery. Moreover, Buompane learned during discovery when Colitti had requested approval to fire him, yet he did not move to amend his pleadings and the theory of his retaliation claim until filing his opposition to defendants' summary judgment motion.
At any rate, Buompane's proposed amendment would be futile. There is insufficient evidence that Buompane engaged in any conduct protected under the ADEA at the January 1999 Meeting. Buompane's notes of the meeting are ambiguous. They include the following passage:
I made her aware of my activities during 1998, regarding my inquiries within Citibank because of Cindy's east comments about looking to give more responsibility to younger, less experienced people.
(Emphasis supplied). It is unclear from this passage whether he mentioned "Cindy's past comments" to Colitti during the meeting, or was rather noting for himself his justification for having been "disloyal" by looking for a position outside her unit. Buompane presents a clearer picture of what occurred at the January 1999 Meeting in his deposition testimony. When asked if he ever complained to Colitti specifically about her allegedly ageist comments, Buompane answered that he had no recollection of any such complaint:
Q: Did you, at any time, tell Ms. Colitti that you found her comments to be offensive, these age-based comments to be offensive in any way?
A: I don't recall having that specific discussion, no.
Nor could he recall complaining to anyone else at Citibank about Colitti's comments until he submitted his March Memo.
Finally, even if Buompane could establish the January date as the first time he engaged in conduct protected under the ADEA, defendants have presented evidence that Colitti made her decision to terminate Buompane's employment in late 1998, during discussions with Hesslein concerning reducing her headcount. In his submissions, Buompane has failed to address this evidence, let alone present any evidence to counter it. Because defendants have produced uncontroverted evidence in the form of Hesslein's declaration and Colitti's deposition testimony that Colitti decided to seek authority to terminate Buompane's employment before her meeting with Buompane on January 27, 1999, Buompane cannot assert that Colitti's decision was made in retaliation for any subsequent complaint made by him. Cf. Clark County Sch. Dist. v. Breeden, 121 S.Ct. 1508, 1511 (2001) (school was not obligated to refrain from transferring a teacher where transfer was contemplated before the protected activity).
CONCLUSION
For the reasons stated, defendants' motion for summary judgment is granted and Buompane's cross-motion for leave to amend his complaint is denied.
In his opposition, Buompane makes no argument in support of his intentional infliction of emotional distress claim. At any rate, nothing in the record suggests that defendants' conduct was "`so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society.'" Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999)(quoting Howell v. New York Post Co., 81 N.Y.2d 115, 122 (1993)) The employment discrimination claims based on state law are governed by the same standard that applies to ADEA claims, and therefore, must also be dismissed. Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) ("Although there are differences between the State [Human Rights Law ("HRL")], the City HRL and the federal Age Discrimination in Employment Act, age discrimination suits brought under the State HRL and City HRL are subject to the same analysis as claims brought under the ADEA.") (citations omitted).