Opinion
06 Civ. 4402 (DLC).
January 22, 2008
For Plaintiff: Joseph D. Garrison, Nina T. Pirrotti, Garrison, Levin-Epstein, Chimes Richardson, P.C., New Haven, Connecticut, Piper Hoffman, Outten Golden, LLP, New York, New York.
For Defendant: Stephanie E. Sowell, JPMorgan Chase Legal Department, New York, New York.
OPINION ORDER
Defendant JPMorgan Chase Company ("JPMorgan") moves for summary judgment in this employment discrimination action brought by David Weiss, a former employee. Weiss alleges that his termination violated the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 621 et seq., and the New York City Human Rights Law ("NYCHRL"), N.Y.C. Admin. Code § 8-107(1)(a). For the following reasons, defendant's motion for summary judgment is granted.
BACKGROUND I. Weiss's Employment History
The undisputed facts of record, or, where disputed, taken in the light most favorable to Weiss as the non-moving party, establish the following: David Weiss is presently sixty years old. In 1991, he joined Manufacturer's Hanover, a predecessor organization of JPMorgan, as a vice-president in private placement. JPMorgan started a high yield ("HY") bond business in its North America Credit Markets group in 1993, when Weiss joined it at the approximate age of forty-six. Weiss worked in that division and was promoted to managing director. In 1998, at the age of approximately fifty-one, Weiss became the head of JPMorgan's HY sales group, reporting to Peter Schmidt-Fellner and, later, to Schmidt-Fellner and Jeff Flug. As head of the HY group, Weiss managed a number of HY salespeople and also covered his own accounts. In late 2002 or early 2003, Schmidt-Fellner and Flug advised Weiss to give up his accounts and only manage HY sales. Schmidt-Fellner left JPMorgan in early 2003, leaving Jonathan Gray and Flug as Weiss's direct supervisors.
JPMorgan reorganized its North America Credit Markets group in late 2004, and Flug promoted Bryan Weadock, who was forty-one at the time, to head of all credit sales, including the HY division. Prior to his promotion, Weadock has been the head of high grade sales; in that position, he was a direct peer to Weiss and also reported to Gray and Flug. Following Weadock's promotion, Weiss was assigned to report directly to Weadock, and Weadock reported to Flug. Flug took a sabbatical from early February 2005 to September 2005, and during that time Weadock reported to Carlos Hernandez, the head of origination and distribution.
Additionally, as part of the 2004 reorganization, two HY salespeople were fired. It is undisputed that the two men were let go due to poor performance; it is also undisputed, however, that they were told by Weiss that "there was a position elimination." Weiss avers that the decision to end their employment at JPMorgan was made in concert with Weadock, Gray, and Flug, among others, and that he was specifically instructed to inform them that their positions had been eliminated. No one was hired to replace them.
II. Bonus and Compensation Issues
At JPMorgan, bonuses are distributed through an elaborate process, in which top executives first decide upon a firm-wide bonus pool, based upon a number of factors, and then allocate that pool to the various lines of business within the firm. Once investment banking — the line of business that included Weiss's HY group — received its allocation from the firm, the line leadership distributed that money to its component groups, and so on. Ultimately, Weiss was given a pool of money by the business product unit head to distribute among those HY salespeople who reported directly to him. Moreover, Weiss was responsible for communicating with management the need for more money for his sales team.
The record reflects complaints about compensation from a number of members of the HY sales group in 2002, 2003, and 2004. For example, Josh Neren, who was hired by Weiss as an HY salesperson in 2002, testified that the compensation obtained by Weiss for him had been inappropriate for the performance years 2002 and 2003. Despite the fact that Neren's compensation almost tripled over the course of one year — from $400,000 in 2002 to $1.125 million in 2003 — and increased again by approximately fifty-five percent in 2004, Neren was disappointed by his 2004 compensation. He spoke directly with Weiss about his advocacy for the HY group and, in early 2005, he complained to clients about his compensation and began looking for work with other financial institutions. He stopped interviewing when he was guaranteed a bonus by Weiss and Weadock.
For the 2004 compensation year, Weiss communicated to Flug in December 2004 that the HY group would require $12.475 million to fund its bonuses. As of January 6, 2005, JPMorgan had approved approximately $11.7 million in bonus compensation for the HY group; that amount grew to $11.8 million on January 11. Despite warnings that the bonus pool for the North American Credit Markets group might shrink by as much as thirty percent for 2004, the bonus pool for the HY sales team was down only 5.1% from the previous year. By contrast, high-grade sales — the group at one time headed by Weadock — was down 18.5% from the previous year.
A number of Weiss's reporting employees were dissatisfied with their compensation and bonuses for 2004, and communicated their disappointment to Weiss, Flug, and Gray. Weiss had "more than one discussion" in which the HY sales team "voiced concerns" about compensation. JPMorgan claims that in November 2004, Flug held meetings about compensation with at least six of Weiss's reporting employees. Flug left these meetings with the "impression . . . that the HY salespeople that met with him were concerned that Weiss was not aware of the `pulse' of the marketplace." Flug testified that several of Weiss's reporting employees requested that Flug "g[e]t another person in the process" of bonus allocation because "Weiss did not fully understand or appreciate the" compensation market for HY salespeople. By Weiss's own admission, these employees attributed their low compensation and bonuses at least in part to Weiss's inability to advocate effectively for the HY team. As Weiss put it, "[t]hey felt overworked and underpaid, and they attributed a lot of that to me." Five of Weiss's team members "told him that they felt he was not pulling his weight with getting them paid and that he was letting other groups run over HY sales." While Weiss forthrightly acknowledges these complaints, he contends that he calculated bonuses for his salespeople in compliance with directives from Flug to pay employees "at the middle of the market," and further argues that he successfully advocated for additional bonus funds for his group, which experienced a far smaller decline in its total allocation than other groups. Weiss also observes that no member of his team complained that he improperly allocated the pool he was given by his supervisors at JPMorgan; that is, no employee argued that he "should have received more money vis-à-vis [his] fellow team members."
Weiss objects to this and other statements on the basis that they contain inadmissible hearsay. These objections will be addressed infra.
III. Weiss's 2004 Evaluation
Weiss received a 360° evaluation — that is, an evaluation including comments from both his supervisor and supervisees — for 2004. The evaluation included praise for Weiss's work in the HY group: Flug said that Weiss "possesses a high energy level and maintains [a] full workload — he sets a v[ery] good example to his team in this regard," and one of Weiss's direct reports commented that he has an "[e]xcellent attitude towards the firm," was a "[s]trong developer of talent and provider of opportunity," and was a "[s]uperior administrator to the team."
The evaluation also included a good deal of negative comments on Weiss, almost all of which was solicited by the evaluation's request that respondents "identify 3 areas that this individual needs to improve." Under that heading, Weiss's reporting employees wrote that he "can not give a compliment without attaching a negative comment to the conversation," and suggested that he "[b]e more of an advocate of the team" and "[g]et the High Yield Salesforce paid market levels." Further, a leitmotif coursing through the negative comments was that Weiss allowed the HY sales group to be "pushed around" by other groups within JPMorgan. For example, Shabbir Jasdanwala, one of Weiss's employees, wrote that Weiss "[n]eeds to fight even harder for the sales team. Be it with compensation or promotions or when capital markets tries to push us around."
IV. Defection of Weiss's Employees
JPMorgan alleges that in late 2004 and early 2005, as a result of their dissatisfaction with compensation and with Weiss's leadership, a number of Weiss's reporting employees interviewed for jobs with other firms and, "[f]rom January to March 2005, at least 6 top producing salespeople received offers or were about to receive offers from competitor firms." Weiss disputes this account. First, he states that he "cannot speculate on who was `about to receive' offers." Second, he contends that none of his employees testified that their interest in pursuing other employment was due directly to dissatisfaction with compensation and leadership. And, third, he argues Weadock's own HG group was the subject of "significant competitor focus," and that during the same time period, at least five members of Weadock's group were pursuing other employment.
Shabbir Jasdanwala, the top salesman on the team, resigned on March 8, 2005 to join a competitor due to frustration with his compensation, even after Weiss had helped secure a guarantee for him. Following Jasdanwala's resignation, HY salesman Gene Pagnozzi told Weadock "that [he] thought that we had lost control of the group and there were many disgruntled people that were about to leave." In addition, HY salesman Josh Neren testified that he was "planning on leaving" JPMorgan because he was "so upset after so many years of getting what I felt like mispaid" and had received an offer from Deutsche Bank. In early 2005, salesman Anthony McCann told Weiss, "I must be the only dope on the desk who's not out interviewing."
V. Client Coverage Concerns
As already noted, at the suggestion of his then-supervisors Jeff Flug and Peter Schmidt-Fellner, Weiss stopped covering accounts in late 2002 to early 2003 and thereafter only managed HY sales. Weadock became Weiss's supervisor in late 2004. According to Weadock, he thought it was a problem that Weiss did not cover accounts because Weadock believed it was important for Weiss to "interfac[e] with client[s]," to "driv[e] the business forward," and "to maximize productivity." Weadock claims that he discussed this issue with Weiss in late 2004 and that Weiss "pushed back" on the issue and did not want to cover accounts. Weadock "was frustrated with Dave's pushback on his unwillingness to cover clients," and began reporting Weiss's behavior to human resources representatives. On or about December 22, 2004, Weadock wrote an email to his manager, Jeff Flug, expressing concern about Weiss. The email read in part:
We need to discuss Dave's willingness to cover clients. Dave is lobbying me why it doesn't make sense for [sic] cover clients. . . . I have a problem with this and you know my feelings on the whole subject. I don't want anyone working for me that is begrudgingly covering clients. Let's sit down right after the new year.
In early 2005, Weadock repeatedly communicated to human resources representative Penny Van Niel that he continued to push Weiss to move into a producer/manager role in order to "take the business to the next level."
Weiss claims that his resistance to taking on a sales role in addition to his managerial role stemmed from his employees' likely reaction to his account coverage. Weiss claims that he "expressed concern, among other things, that his salespeople would be `livid' if he covered accounts that would otherwise be distributed among them, given that 2004 was a tough compensation year and their bonus was tied to the amount of business they generated." When Jasdanwala's resignation required someone to cover his accounts, Weiss did so on his own initiative.
VI. The Termination of Weiss's Employment
In February 2005, Hernandez began conducting meetings with groups in his division of JPMorgan because, according to him, "the whole investment bank at that time was going through difficult times." A meeting with the HY sales team, without Weiss present, was held on February 11. According to salesman Gene Pagnozzi,
the gist of that meeting . . . was that the sales force felt that we had become the lower rung of the triangle and that trading and capital markets were running the show and no one was championing the cause of sales and it was reflected in our compensation and the way the trading desk treated us and the way the trading desk was allowed to take their losses and underperformance and blame it on sales.
Hernandez testified that this meeting made "very clear that [the HY sales team's] issues were beyond just pure compensation and it was from a lack of confidence of [sic] as a boss, defending their interests." Further, Hernandez stated there were "also issues about lack of promotions or advocating for the people in the groups." Specifically, Hernandez stated that the HY team objected to the paucity of team members' promotions to managing director positions.
Weadock continued to communicate his displeasure with Weiss to Van Niel throughout January and February 2005. Weadock did not, however, express any concerns directly to Weiss concerning his performance. In March, Weadock recommended to Hernandez that Weiss be removed as head of HY sales, and Hernandez agreed with the decision. On March 9, the day after Shabbir Jasdanwala resigned from JPMorgan, Van Niel sent the following email to her supervisor, Susan LaMonica:
Carlos [Hernandez] and Bryan Weadock have agreed that it's time for Dave Weiss to move on; he's not the positive energized leader the HY Sales side needs at this time and we need to make room for talented people below. The plan is to have one of his directs, Tony McCann, assume management of the HY Sales team in addition to his current responsibilities. (Today, Dave does not actually cover accounts so this Produce-Manager model is one they want to move towards.) Are you comfortable treating this as a job elim?
Upon LaMonica's approval, the termination of Weiss's employment was treated as a "job elim" because JPMorgan was technically eliminating a manager-only position and transitioning to a producer-manager head of HY sales. Further, treating his termination as a "job elim" would allow Weiss to search for an internal position at JPMorgan and would qualify him for generous severance benefits. According to JPMorgan, the company's policy for processing job eliminations requires human resources to generate a report including demographic data for all employees in the terminated employee's group. Human resources employee Audrey Brahms stated in an affidavit that the purpose of the report was to allow human resources "to evaluate whether the contemplated job elimination(s) will have an adverse impact on the demographics of the affected group and to double-check that the rationale for the contemplated action is based on sound managerial judgment."
On March 15, Weadock informed Weiss that his job as HY sales manager was being eliminated. According to Weiss, Weadock additionally informed him that it was "time for a change." The next day, after evaluating both Neren and Anthony McCann, who was forty years old at the time, Weadock selected McCann for the role of producer-manager of HY sales.
Weiss claims that JPMorgan did not follow its own protocol in terminating his employment. Specifically, Weiss avers that Weadock and Hernandez did not confer with a number of Weiss's direct supervisors, including Jeff Flug or Jon Gray, who had been his direct supervisors for the majority of his tenure as head of the HY group, Chris Linneman, a managing director and head of leveraged finance, Jim Casey, the head of high yield capital markets, Jimmy Lee, vice chairman of JPMorgan, and Lillie Alexandre, a human resources representative "directly involved in monitoring day to day interactions with HY sales throughout the relevant time period." JPMorgan does not dispute that conversations between Weadock and these JPMorgan employees never took place.
Further, Weiss claims that JPMorgan failed to abide by its own guidelines prescribing "corrective action" for employees whose employment was at risk of termination. Pursuant to these guidelines,
[w]hen an employee does not meet the performance standards for his or her position . . . if appropriate, corrective action helps the manager and the employee resolve performance problems together and ensures that misunderstandings do not interfere with the employee's ability to contribute his or her best.
Corrective action is applied, however, "at the discretion of JPMorgan Chase," and the guidelines "may be altered or abbreviated by JPMorgan Chase in its sole discretion as it deems appropriate. This includes proceeding to immediate termination of employment at any time without any prior warning." JPMorgan does not dispute that it did not issue any corrective action with regard to Weiss. Moreover, under its "performance management" policy, JPMorgan creates development plans for employees to "clarify responsibilities and accountabilities and measure individual progress against objectives." Van Niel testified that she was unable, in the exercise of due diligence, to find a development plan for Weiss.
Following the termination of Weiss's employment, Hernandez allowed Weiss to stay on the JPMorgan payroll until August 2005 while he interviewed for other positions within the firm. Weiss pursued positions on the syndicate desk, where he would allocate bonds, and as relationship manager for asset management companies. He did not secure either position. Weadock testified that he did not recommend Weiss for either position because he "could not see Weiss in a client-facing role." Weiss was employed as an executive vice president by Cheslock, Bakker Associates from May 2006 through March 1, 2007. According to Weiss, he is currently seeking employment.
VII. The Instant Lawsuit
Weiss filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC") on September 2, 2005. The EEOC issued a Notice of Right to Sue on March 17, 2006. On June 12, 2006, Weiss filed a complaint bringing causes of action under the ADEA and the NYCHRL.
DISCUSSION
The ADEA makes it "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). The class protected by the ADEA is limited to persons forty years of age or older. Id. § 631. Courts analyzing discrimination claims under the ADEA apply the three step burden-shifting framework established by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973). See Woodman v. WWOR-TV, Inc., 411 F.3d 69, 76 (2d Cir. 2005).
Weiss's claims under the New York City Human Rights Law "are subject to the same analysis as claims brought under the ADEA."Abdu-Brisson v. Delta Air Lines, Inc., 239 F.3d 456, 466 (2d Cir. 2001) (citation omitted).
Under McDonnell Douglas, a plaintiff bears the initial burden of establishing a prima facie case of age discrimination by showing that
(i) at the relevant time the plaintiff was a member of the protected class; (ii) the plaintiff was qualified for the job; (iii) the plaintiff suffered an adverse employment action; and (iv) the adverse employment action occurred under circumstances giving rise to an inference of discrimination, such as the fact that the plaintiff was replaced by someone substantially younger.Woodman, 411 F.3d at 76 (citation omitted). If the plaintiff succeeds in establishing a prima facie case, a presumption of unlawful discrimination arises, shifting the burden to the defendant, who must produce a "legitimate, nondiscriminatory reason for the challenged employment action." Id. (citation omitted). If the defendant does so, "the presumption of discrimination drops out, and the plaintiff must prove that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination." Id. (citation omitted).
Summary judgment may not be granted unless all of the submissions 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." Fed.R.Civ.P. 56(c). 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 non-moving party. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006). In a discrimination case such as this one, the defendant "will be entitled to summary judgment . . . unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination." Joseph v. Leavitt, 465 F.3d 87, 90 (2d Cir. 2006). The ultimate question is whether the evidence, viewed in the light most favorable to the plaintiff, would support a finding "that the defendant intentionally discriminated against the plaintiff." Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 143 (2000). A prima facie case combined with a showing that an employer's asserted justification is false is sometimes, but not always, sufficient to permit a discrimination claim to survive summary judgment. Schnabel v. Abramson, 232 F.3d 83, 89-91 (2d Cir. 2000). The court must "examin[e] the entire record to determine whether the plaintiff could satisfy her ultimate burden of persuading the trier of fact that the defendant intentionally discriminated against the plaintiff." Id. at 90 (citation omitted). In showing that age was a contributing factor to the termination of his employment, Weiss "may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that [his] version of the events is not wholly fanciful." Woodman, 411 F.3d at 75 (citation omitted).
I. Evidentiary Issues
As a prefatory matter, Weiss's objection to consideration of certain statements must be addressed. As noted in the Background section, supra, Weiss objects to consideration of a variety of statements, including employees' comments in his 360° evaluation and comments made to his supervisors concerning his reporting employees' complaints, on the basis that they contain inadmissible hearsay. Hearsay is "a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted." Fed.R.Evid. 801(c). None of the comments to which Weiss objects are offered into evidence by JPMorgan to prove the truth of the matter asserted. Rather, they are offered to demonstrate that members of the HY team complained about Weiss, and their state of mind in lodging such complaints, as well of the state of mind of Weiss's superiors upon hearing these complaints.
II. Weiss's Prima Facie Case
Weiss has satisfied the "minimal requirements," St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506 (1993), imposed by the first step of McDonnell Douglas. He has demonstrated that (i) at the relevant time he was more than forty years of age; (ii) he was qualified for the job; (iii) he suffered an adverse employment action; and (iv) the termination of his employment gave rise to an inference of discrimination, by virtue of the fact that he "was replaced by someone substantially younger."Woodman, 411 F.3d at 76 (citation omitted).
II. JPMorgan's "Legitimate, Nondiscriminatory" Reasons
JPMorgan articulates and provides evidence to support four reasons that constitute a legitimate, nondiscriminatory basis for Weiss's firing:
(1) numerous employees complained about Weiss' management of the group and compensation decisions, (2) the number one sales person in HY resigned, (3) numerous other team members were pursuing external job opportunities, and (4) Weadock expressed concern about Weiss' willingness to cover accounts.
Although Weiss disputes each of these proffered justifications, "taken as true," they "permit the conclusion that there was a nondiscriminatory reason for the adverse action." St. Mary's Honor Ctr., 509 U.S. at 509 (1993) (emphasis omitted).
III. Weiss's Burden of Demonstrating Pretext
Weiss claims that the allegedly legitimate, nondiscriminatory reasons offered by JPMorgan for the termination of his employment are merely pretext for age discrimination, and he attempts to disprove each of them. For the following reasons, Weiss's evidence of pretext is unavailing.
JPMorgan's first proffered legitimate, nondiscriminatory reason for firing Weiss was his employees' persistent complaints about compensation and Weiss's leadership. In support of this reason, JPMorgan notes it is "undisputed the HY sales force on several occasions voiced concerns to management regarding Weiss." Further, JPMorgan notes that it is "undisputed Weiss['s] directs were concerned about his ability to advocate for the team." Indeed, Weiss does not dispute these facts. He admitted in his deposition that his employees "felt overworked and underpaid, and they attributed a lot of that to me," and concedes that five of his team members told him that they felt he was not "pulling his weight with getting them paid and that he was letting other groups run over HY sales."
Weiss primarily argues that his employees' complaints were either misdirected or unfounded. As to the compensation issues, Weiss argues that he calculated bonuses for his salespeople in compliance with directives from Flug to pay employees "at the middle of the market," and further argues that he successfully advocated for additional bonus funds for his group, which experienced a far smaller decline in its total allocation than other groups. Weiss contends that he did well for his employees with what he was given by his supervisors, observing that no member of his team complained that he improperly allocated the pool he administered. He further suggests that complaints about compensation were spread throughout the firm, including in Weadock's own group, and that "[t]o the extent that Weiss's employees complained because they were not paid above mid-market, that was not Weiss's fault, but a choice [JP]Morgan made." As to the leadership issues, Weiss generally argues that there are material facts in dispute because there "is no objective evidence to support" his employees' sentiments that he lacked leadership ability.
Weiss appears to argue that JPMorgan's proffered justification should be rejected because the employees' complaints are demonstrably false. But by Weiss's own admission, his employees blamed him in part for what they perceived to be low compensation, and also faulted him for allowing other groups within JPMorgan to "run over" HY sales. Whether these complaints lacked an objective basis in fact is irrelevant. Whether Weiss was effective in advocating for compensation for his team members is not a material issue of disputed fact, because JPMorgan did not base its termination decision on his ineffectiveness per se, but rather on the basis of his employees' stated perception of his ineffectiveness. It is enough that Weiss's employees voiced these complaints and that his supervisors heard them and acted on them. See Cameron v. Comm. Aid for Retarded Children, 335 F.3d 60, 65 (2d Cir. 2003). It has been long established that an employee may be terminated "on the basis of subjective business judgments, for any reason that is not discriminatory." Stanojev v. Ebasco Servs., Inc., 643 F.2d 914, 921-22 (2d Cir. 1981). Here, JPMorgan has demonstrated that Weiss was consistently criticized by his employees concerning his management of their compensation and his leadership. While Weiss points to numerous compliments made by both his supervisors and supervisees in his annual evaluation, he also admits that his employees were frustrated and blamed him for their frustration. Weiss has not raised a disputed issue of fact as to JPMorgan's first proffered justification for the termination of his employment.
Second and third, JPMorgan bases Weiss's firing on Shabbir Jasdanwala's defection from the company, and the threatened defection of several other members of Weiss's HY sales group. It is undisputed that Jasdanwala had criticized Weiss's leadership before leaving JPMorgan. There is also record evidence that, following Jasdanwala's departure, one member of the HY sales team told Weiss's supervisor "that [he] thought that we had lost control of the group and there were many disgruntled people that were about to leave." Weiss does not dispute that many of his employees were searching for outside employment in late 2004 and early 2005. Rather, he argues that he advocated fiercely to secure reasonable compensation for his team, and that any frustration expressed by his team members concerning compensation and bonuses should have been oriented towards JPMorgan, and not towards him. Weiss also notes that he offered to reduce his own 2004 bonus to maximize compensation for one of his key employees, only to be told by his supervisors that such a proposal was impossible; that he successfully advocated for guarantees for key team members, inducing them to stay at JPMorgan; and that many members of Bryan Weadock's team also considered leaving JPMorgan during the same time frame.
The evidence marshaled by Weiss cannot obscure the fact that, under his leadership, the top salesperson in the HY group left for a competitor, a number of other employees were in the process of seeking employment elsewhere, and the employees who stayed behind were worried about the security of the group. That other groups within JPMorgan suffered from the same malady, and their leaders were not fired, does nothing to support Weiss's claim of age discrimination absent any evidence that the disparate treatment he suffered was traceable to some ageist animus. For example, Weiss does not marshal any evidence to suggest that he was treated differently from Weadock as a result of Weadock's comparative youth. See Thornley v. Penton Pub., Inc., 104 F.3d 26, 29 (2d Cir. 1997) (noting that absent a showing of bad faith, "an employer who is sued on allegations of age discrimination is not compelled to submit the reasonableness of its employment criteria to the assessment of either judge or jury"). Accordingly, Weiss has done nothing to undermine this proffered legitimate, nondiscriminatory justification for his termination.
Indeed, as discussed infra, Weiss has failed to establish that Weadock was similarly situated to him within the meaning of the ADEA.
Fourth, and finally, Weiss argues that Weadock's alleged concern regarding Weiss's failure to serve in a producer/manager role by covering his own accounts was not a legitimate reason for his termination. He argues that he expressed a willingness to cover accounts and that he was capable of doing so had he ever migrated into that position. Moreover, he observes that on his own initiative he covered Jasdanwala's accounts after Jasdanwala left JPMorgan, but was fired only a few weeks later.
Weiss, however, does not contradict Weadock's account of Weadock's client coverage concerns. Weiss argues that Weadock never "required" him to cover accounts, but does not cavil with JPMorgan's evidence that client coverage was an issue looming over Weiss's employment and firing, and that the company was moving toward a producer/manager model in all of its sales groups. Moreover, Weadock told Flug that Weiss was "lobbying me why it doesn't make sense for [sic] cover clients." Indeed, in his opposition to summary judgment Weiss argues that he didn't want to cover his own accounts because he was concerned "that his salespeople would be `livid' if he covered accounts that would otherwise be distributed among them, given that 2004 was a tough compensation year and their bonus was tied to the amount of business they generated." Whether Weiss's reason for resisting client coverage was valid, it remains undisputed that he challenged Weadock on this issue, and that Weadock was concerned that Weiss would only "begrudgingly cover clients," as he wrote to Flug. Weiss's coverage of Jasdanwala's accounts following the latter's departure in March 2005, therefore, followed a period of recalcitrance in the face of requests from Weadock.
Weiss observes that Hernandez, Weadock's direct supervisor, testified that Weadock never told him that he wanted Weiss to cover his own accounts, and that this testimony "cast[s] doubt on Weadock's allegedly strong desire for Weiss to cover accounts." The strength of Weadock's desire is not in issue. It is undisputed that Weadock made his request known to Weiss, and that Weiss resisted.
Weiss argues that Penny Van Niel "testified that Weadock told her that Weiss agreed to resume covering accounts." Van Niel's testimony to this effect reads as follows:
[Weadock] told me that he had talked to Dave about his desire to have producer managers as heads of all the sales groups including high yield sales. That he and Dave had agreed that that's what Dave would move towards. And he felt that Dave hadn't moved towards that, been able to move towards that or had not yet moved towards that.
Whatever abstract willingness Weiss might have expressed about serving in a producer manager model, Van Niel's undisputed testimony makes clear that Weiss "hadn't moved towards" a producer/manager model, in contravention of Weadock's express desires. Thus, Weiss has not raised an issue of fact to show that Weadock's concern about Weiss's failure to cover clients was illegitimate.
Weiss has not presented evidence to raise a question of fact suggesting that the "the employer's proffered explanation is unworthy of credence." Reeves, 530 U.S. at 143. Nor, as demonstrated below, has he marshaled other evidence of age discrimination to survive defendant's motion for summary judgment.
IV. Weiss's Evidence of Discrimination
Weiss also claims that circumstances surrounding his firing — namely, the fact that JPMorgan did not eliminate his job, the company's shifting reasons for firing him, the company's failure to follow its own human resources protocol in terminating his employment, and JPMorgan's differential treatment of Weadock — provide indirect evidence of discrimination that should preclude summary judgment. Discriminatory animus may be inferred from indirect evidence such as preferential treatment of other similarly-situated employees. See Holtz v. Rockefeller Co., 258 F.3d 62, 82 (2d Cir. 2001). Factors that would be unconvincing in isolation may in combination permit a jury to infer discriminatory bias. See Byrnie v. Town of Cromwell, 243 F.3d 93, 102 (2d Cir. 2001). The indirect evidence identified by Weiss, however, is unconvincing both when considered in isolation and in combination.
A. Job Elimination
Weiss contends that although on the day he was fired, JPMorgan informed him that the company was eliminating his job, his position was not eliminated; rather, he was replaced by McCann. It appears clear from the record, however, that JPMorgan conducted what it terms a "job elimination" for two reasons. First, doing so allowed Weiss to reap significant termination benefits, including severance pay and stock options. Second, McCann filled a producer/manager role that was empirically different from the manager-only role filled by Weiss. There is no evidence that denominating such a transition a "job elimination" carried any nefarious or discriminatory subtext.
As Weiss notes, Penny Van Niel testified that JPMorgan "always advocate[s] giving true reasons" to employees who are fired, but that it failed to do so in his case. It is unclear why JPMorgan did not inform Weiss at the time of his firing of the reasons it now offers. Given the extensive documentary evidence from 2004 and 2005 supporting JPMorgan's proffered justifications for Weiss's firing, however, there is no evidence to support an inference of discriminatory pretext from JPMorgan's failure to inform Weiss frankly of the precise reasons for his firing.
B. Shifting Reasons for Termination
Weiss rehearses the various reasons offered by JPMorgan for his firing: Van Niel informed her supervisor Susan Lamonica that Weiss was "not the positive, energized leader that the high yield sales side needs at this time"; Van Niel testified that Weiss "did not have the skills" to execute Weadock's strategy for the high yield team; on the day his employment was terminated, Weiss was told that his job was being eliminated; Weadock testified that Weiss's team had lost confidence in him, that he had failed as a leader, and that he had failed to cover his own accounts; and Hernandez underscored Weiss's leadership failings. Weiss contends that this multiplicity of reasons gives rise to an inference of pretext. See EEOC v. Ethan Allen, Inc., 44 F.3d 116, 120 (2d Cir. 1994). None of the explanations offered by JPMorgan, however, is inconsistent with any other. Rather, the variety of explanations offered reflects the polyphony of multiple decisionmakers and the assorted complaints lodged against Weiss.
The cases cited by Weiss on this point are distinguishable. For example, in Ethan Allen, the Second Circuit found that the employer had offered a "sole reason" for the employee's firing, but then subsequently abandoned that reason in favor of another, inconsistent explanation. Ethan Allen, 44 F.3d at 220. The employer's behavior gave rise to an inference of pretext. Here, JPMorgan has never said that any one reason was determinative of Weiss's firing, nor has the company advanced any demonstrably false or inconsistent rationales for his firing, as Ethan Allen did. In Schmitz v. St. Regis Paper Co., 811 F.2d 131 (2d Cir. 1987), the employer initially offered a reason for the employee's firing that was "clearly false," and then switched to another justification at trial. Id. at 133. No reason offered by JPMorgan has been proven "false" in Weiss's case.
As discussed above, the record reveals a factual basis for JPMorgan's contentions that Weiss was perceived as a failed leader by his team, his team had lost confidence in him, and he was, at the very least, reluctant to cover his own accounts. In addition, as just discussed, JPMorgan has offered a legitimate, nondiscriminatory reason for treating Weiss's termination as a job elimination. As to the other reasons offered — Weiss was "not the positive, energized leader that the high yield sales side needs at this time," and he "did not have the skills" to execute Weadock's strategy for the high yield team — Weiss has failed to demonstrate that these explanations, standing alone or in concert, were pretextual or anything other than serialized formulations of the more detailed explanations for his dismissal.
Weiss repeatedly argues that there is no documentary proof that his team lost confidence in him. While it appears that no employee actually used the phrase "lost confidence" in an evaluation or other communication, the complaints about Weiss's leadership and ability to bring in compensation and bonuses that are discussed above are all fairly read to indicate a loss of confidence among Weiss's employees. There is no legal requirement that the explanations proffered by JPMorgan for Weiss's termination be formulated identically to the employees' complaints.
Weiss rightly observes that his 2004 evaluation contained positive comments about his work ethic and energy level. But these general comments do nothing to deflect attention from JPMorgan's expressed need for "the positive, energized leaderthat the high yield sales side needs at this time" (emphasis supplied). Undisputed facts make clear that morale was flagging in the high yield sales group due to compensation and bonus issues, as well as the actual and threatened departure of several employees. Accordingly, JPMorgan had every reason to seek a "positive, energized leader" other than Weiss to lead the group. Weiss argues in addition that JPMorgan's claim about the need for leadership is not credible because McCann, Weiss's successor, had no track record of leadership in the industry. "[A]n employer who is sued on allegations of age discrimination is not compelled to submit the reasonableness of its employment criteria to the assessment of either judge or jury." Thornley, 104 F.3d at 29. Thus, despite Weiss's invitation that "[a] rational factfinder could easily find Weiss more qualified than McCann to lead the HY team," it is not the place of the court to substitute its business judgment for JPMorgan's. See Dister v. Continental Group, Inc., 859 F.2d 1108, 1116 (2d Cir. 1988). Absent a showing of bad faith, which Weiss has failed to make, there is no reason to question JPMorgan's appointment of McCann to a producer/manager role in HY sales following Weiss's termination.
To the extent Weiss argues that the reference to his energy level has an ageist dimension to it, that argument is rejected. This singular, potentially ageist comment is so "oblique" that it provides minimal support for his allegation. Tomassi v. Insignia Fin. Grp., Inc., 478 F.3d 111, 115 (2d Cir. 2007).
Finally, with regard to Van Niel's testimony that Weiss "did not have the skills" to execute Weadock's strategy for the high yield team, it should be noted that this was not a reason given for Weiss's firing, as Weiss suggests, but rather one statement given in the course of Van Niel's deposition. JPMorgan is under no obligation to defend each and every statement made by its employees in deposition. Given the undisputed evidence of Weiss's employees' complaints about his leadership skills and Weiss's failure to heed Weadock's request about client coverage, Van Niel's statement need not be parsed for discriminatory pretext.
C. Failure to Follow Termination Protocol
Weiss argues that, in contravention of JPMorgan's human resources practices, the company never shared any concerns about his performance with him prior to his firing, and did not confer with certain counterparts and superiors who knew him well. The only people who were consulted, he argues, were in an inadequate position to assess his work because of their lack of exposure to the high yield sales group. Neither of these arguments demonstrates that the termination of Weiss's employment was based on improper considerations.
As described above, JPMorgan has a discipline policy through which the company undertakes a series of progressively more rigorous interventions to assist employees not meeting performance standards. The policy is hortatory, not mandatory, but both Weadock and Hernandez testified that the company's general practice normally involves discussions with an employee and human resources before any employment action is taken. It is undisputed that, in Weiss's case, no official action was taken to alert Weiss to complaints made against him. It is also undisputed, however, that Weiss participated in the job elimination of two of his direct reporting employees three months before his own firing, and that these job eliminations occurred under circumstances similar to those surrounding his departure. The two terminated employees were given no warning of complaints against them, were told their jobs were being eliminated, and were never placed on a progressive disciplinary program. Weiss informed them personally that their jobs were being eliminated.
There is no legal requirement that employers hew to their own established procedures in firing employees, but "[d]epartures from procedural regularity . . . can raise a question as to the good faith of the process where the departure may reasonably affect the decision." Zahorik v. Cornell University, 729 F.2d 85, 93 (2d Cir. 1984). It is evident from Weiss's actions in firing the two employees he supervised, however, that Weiss's own job elimination was not a real departure from JPMorgan's practice. Although official policy suggests disciplinary intervention, that policy is neither mandatory nor, evidently, observed as a matter of course.
Weiss's contention that JPMorgan human resources did not give him permission to inform the two employees of their firing in advance is irrelevant. Weiss was aware that employment termination at JPMorgan occurred out of compliance with the company's progressive discipline policies, and indeed he participated in two such terminations.
Moreover, even if Weiss's firing had been effected out of compliance with JPMorgan's internal procedures, undisputed evidence suggests that JPMorgan had cause to deviate from them. Hernandez testified that Weiss's firing was in response to the "urgency" occasioned by the threatened departures of HY salespeople. He claimed that Weadock had told him that "others were ready to walk even though they had already been given guarantees." Weiss claims that this explanation is untenable because each of the employees "stated that once they received their guarantee, they had no intention of leaving Morgan." Even if Weiss's claim were true, the widespread dissent among the HY salespeople, which was pointedly oriented at Weiss, and Jasdanwala's departure, credibly created enough of an urgency to provide a legitimate, nondiscriminatory reason for any deviations from JPMorgan's conventional disciplinary process.
In fact, the deposition testimony of the HY salespeople suggests that each of them struggled with whether to stay at JPMorgan after they had been given guarantees. For example, Gene Pagnozzi testified that he decided to stay not only after he received a guarantee, but also after he "talked it over with my wife."
Weiss's contention that Hernandez, Weadock, and Van Niel should have spoken with certain of Weiss's colleagues and supervisors who knew him better before firing him is unavailing. Perhaps it would have made more sense for a decision as to Weiss's future at JPMorgan to be made by those who knew his work over a longer period of time than did Hernandez, Weadock, and Van Niel, all of whom were relatively new to high yield sales. But it is not the role of the factfinder on summary judgment to substitute its own business judgment for JPMorgan's. See Dister, 859 F.2d at 1116. Rather, the factfinder need only seek out evidence of pretext or discrimination. Here, the fact that Weiss was fired under urgent circumstances by his two direct supervisors and the human resources representative assigned to his sales group evidences no such pretext or discrimination. In sum, Weiss's evidence concerning the bank's customary practices and the decision-makers involved in his firing is insufficient to raise a question of fact concerning discriminatory intent.
D. Differential Treatment of Weadock
Weiss argues that he was treated differently from the much younger Bryan Weadock despite the fact that both men's groups were threatened with numerous defections. This differential treatment of similarly situated employees, Weiss argues, gives rise to an inference of discrimination. To be "similarly situated" for Title VII purposes, a plaintiff must establish a "reasonably close resemblance of the facts and circumstances of plaintiff's and comparator's cases, rather than a showing that both cases are identical." Graham v. Long Island R.R., 230 F.3d 34, 40 (2d Cir. 2000). Weiss has failed to meet even this lower threshold. Weiss has offered only a handful of useful facts about Weadock — his age, position at JPMorgan, the percentage decrease in his group's bonus pool, and that his group was threatened with departures. As discussed in detail above, the gravamen of the complaints made against Weiss concerned his leadership with regard to compensation, bonus issues, and the HY sales group's stature within JPMorgan. He has offered no evidence to suggest that similar complaints were made against Weadock, and has therefore not demonstrated that Weadock was "similarly situated." Thus no inference of age discrimination arises from a comparison between the two.
None of the indirect evidence proffered by Weiss, considered independently or in concert alongside his prima facie case, gives rise to an inference of discrimination or suggests that the reasons offered by JPMorgan for his firing were pretextual. Because Weiss has not raised a triable issue of fact, defendant's motion for summary judgment is granted.
CONCLUSION
For the foregoing reasons, JPMorgan's August 24, 2007 motion for summary judgment is granted. The Clerk of Court shall close the case.
SO ORDERED: