Filed: Feb. 07, 2013
Latest Update: Feb. 12, 2020
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2268 PAMELA ONUSKO, Plaintiff - Appellant, v. JP MORGAN CHASE BANK, N.A., Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson Everett Legg, District Judge. (1:09-cv-01080-BEL) Submitted: November 29, 2012 Decided: February 7, 2013 Before WILKINSON, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jan I. Berlage, GOHN, HANKEY & STI
Summary: UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 11-2268 PAMELA ONUSKO, Plaintiff - Appellant, v. JP MORGAN CHASE BANK, N.A., Defendant - Appellee. Appeal from the United States District Court for the District of Maryland, at Baltimore. Benson Everett Legg, District Judge. (1:09-cv-01080-BEL) Submitted: November 29, 2012 Decided: February 7, 2013 Before WILKINSON, AGEE, and KEENAN, Circuit Judges. Affirmed by unpublished per curiam opinion. Jan I. Berlage, GOHN, HANKEY & STIC..
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UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 11-2268
PAMELA ONUSKO,
Plaintiff - Appellant,
v.
JP MORGAN CHASE BANK, N.A.,
Defendant - Appellee.
Appeal from the United States District Court for the District of
Maryland, at Baltimore. Benson Everett Legg, District Judge.
(1:09-cv-01080-BEL)
Submitted: November 29, 2012 Decided: February 7, 2013
Before WILKINSON, AGEE, and KEENAN, Circuit Judges.
Affirmed by unpublished per curiam opinion.
Jan I. Berlage, GOHN, HANKEY & STICHEL, LLP, Baltimore,
Maryland, for Appellant. William G. Miossi, Mary M. Lenahan,
WINSTON & STRAWN LLP, Washington, D.C., for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Pamela Onusko (“Onusko”) appeals the district court’s grant
of summary judgment to JP Morgan Chase Bank, N.A. (“Chase”), on
several claims arising from her former employment with Chase.
For the reasons set forth within, we affirm the judgment of the
district court.
I.
Onusko alleges that Chase enticed her away from her then-
current employer, Wells Fargo National Bank, N.A. (“Wells
Fargo”), with promises that Chase was growing its subprime
mortgage division and would hire, promote, and provide Onusko
and her sales team with the necessary resources for her to be
financially successful. Ultimately, Onusko contends Chase
reneged on these promises to her and, as a consequence, owes her
damages on the basis of several causes of action.
Until March 2007, Onusko was employed by Wells Fargo as a
subprime mortgage division manager, where she headed a team of
350 employees responsible for over one billion dollars in sales.
In the spring of 2006, Jim McCraw (“McCraw”), a former Wells
Fargo employee who had left for Chase, began to actively recruit
Onusko to come work for Chase. Chase formally offered Onusko a
position in August 2006. The offer letter discussed the terms
of employment, benefits, and the orientation process, but was
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silent as to the transfer or hiring of Onusko’s sales team. The
letter contained an integration clause which read: “This letter
contains the entire understanding between us and supercedes
[sic] any prior verbal or written communication related to terms
and conditions of this offer of employment.” (J.A. 728.)
Onusko rejected the offer, explaining that she was not ready to
move and that Chase had offered her less than her current
compensation at Wells Fargo.
Chase sent Onusko a second offer letter in September 2006.
Like the previous offer letter, the September 2006 offer letter
made no mention of a sales team and concluded with an
integration clause. Onusko rejected the offer.
From October 2006 through mid-March of 2007, the parties
had no formal dealings. Onusko and McCraw, however,
occasionally spoke by telephone. 1 Though Chase made no formal
offers of employment, Onusko maintains that “general discussion”
about the possibility of her leaving Wells Fargo continued.
(J.A. 562–63.)
1
When asked about the purpose of the telephone
conversations, Onusko responded: “We were friends. We had been
friends for many years. So, you have that networking. That’s a
common thing among businesspeople, and just what’s going on,
just general discussion, how are you doing, how is life, how are
things, miscellaneous conversations with miscellaneous people.”
(J.A. 562.)
3
On March 15, 2007, Onusko received the unexpected news that
Wells Fargo was exiting the subprime sector and, as a result,
eliminating her position. She was offered a different position
in Wells Fargo’s traditional mortgage division with a similar
compensation structure. After considering the offer for “two
seconds,” she immediately informed her manager that she would be
leaving Wells Fargo to work for Chase. (J.A. 511.)
Later that day, Onusko telephoned McCraw and informed him
that she was now ready to join Chase. McCraw responded that he
would need some time to “see what we can put together.” (J.A.
514.) Chase made Onusko a formal offer in April 2007. The
position it had previously offered was not immediately
available, but Chase proposed to make Onusko a regional manager,
with the assurance that she would be promoted to divisional
manager within a few months.
The April 2007 offer letter, like Chase’s previous offer
letters, made no mention of a sales team and contained an
integration clause. Onusko, nevertheless, contends that Chase
“reassured her that as [r]egional [m]anager [ ] she would have
absolutely the same ability to hire members of her sales team
from Wells Fargo.” (J.A. 17.) She concedes, however, that she
accepted the April 2007 offer letter as written and did not
attempt to negotiate any of its terms. She also concedes that
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the parties never discussed specifics, such as a budget or the
number of people that she would be permitted to hire.
Less than a month after Onusko had commenced her employment
with Chase, the bank instituted what it characterized as a
temporary hiring “pause.” 2 In October 2007, Onusko was promoted
to divisional manager as promised, but was unable to hire and
grow the team on which her compensation largely depended. At
some point in late 2007 or early 2008, as the subprime mortgage
market began to disintegrate, it became clear that the hiring
pause was unlikely to be lifted.
In early 2008, Chase eliminated Onusko’s divisional manager
position and made her an area manager, a lesser title which she
held for approximately four months. In August 2008, as Chase
underwent another reduction in its work force, it demoted Onusko
again, this time to loan officer. Onusko formally resigned from
Chase in November 2008.
In April 2009, Onusko filed her Complaint against Chase in
the District of Maryland, alleging fraudulent misrepresentation,
negligent misrepresentation, and deceit. Chase moved for
summary judgment, which the district court granted.
2
The parties dispute whether “pause” or “freeze” is the
proper term for Chase’s cessation of hiring, and of what, if
any, difference in meaning exists between the two. The district
court, quite appropriately, saw no distinction and used the
terms interchangeably.
5
Onusko timely appealed, and we have jurisdiction pursuant
to 28 U.S.C. § 1291.
II.
We review the district court’s grant of summary judgment de
novo, applying the same standard as the district court. See
Nat’l City Bank of Ind. v. Turnbaugh, 463 F.3d 325, 329 (4th
Cir. 2006). Summary judgment is appropriate “if the movant
shows that there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a).
Additionally, we apply Maryland law because this action is
based upon diversity jurisdiction. See Klaxon Co. v. Stentor
Elec. Mfg. Co., Inc., 313 U.S. 487, 496–97 (1941) (federal court
exercising diversity jurisdiction must apply legal principles of
the state in which the federal court is located).
III.
Onusko contends on appeal that the district court erred in
three ways: (1) treating her deceit claim as a fraudulent
misrepresentation claim, rather than as a fraudulent concealment
claim; (2) failing to thoroughly consider key evidence and
facts; and (3) failing to view the facts in the light most
6
favorable to her as to when Chase knew or should have known a
hiring freeze was imminent.
We conclude that the district court did not err in treating
Onusko’s deceit claim as a fraudulent misrepresentation claim,
rather than as a fraudulent concealment claim. Maryland law
makes clear that “the common law causes of action for fraudulent
misrepresentation and fraudulent concealment are substantively
indistinct.” Rhee v. Highland Dev. Corp., 958 A.2d 385, 396
(Md. Ct. Spec. App. 2008); see also Hoffman v. Stamper,
867 A.2d
276, 292 n.12 (Md. 2005) (“It has long been clear that fraud may
consist in a suppression of the truth as well as in the
assertion of a falsehood.” (quotation marks and brackets
omitted)). Onusko has failed to demonstrate a prime facie case
of either fraudulent misrepresentation or fraudulent
concealment. See Miller v. Fairchild Indus., Inc.,
629 A.2d
1293, 1301–02 (Md. Ct. Spec. App. 1993) (stating elements of
prima facie case of fraudulent misrepresentation or deceit).
Onusko cannot show that there was either an affirmative
misrepresentation or a material non-disclosure made by Chase.
Turning to Onusko’s next contention, we conclude that the
district court did not err in failing to consider key evidence
and facts. The district court thoroughly evaluated the record
to determine that there were no genuine issues of material fact
as to whether McCraw used fraudulent misrepresentations or
7
concealments to entice Onusko to join Chase. The record shows
that any conversations Onusko and McCraw had between September
2006 and March 15, 2007, were, as Onusko characterized, “just
general conversation . . . month in and month out.” (J.A. 563.)
The record further reflects that in the three-month period
preceding Onusko’s March 15, 2007 phone call to McCraw
soliciting employment from Chase, there were no other
conversations between her and McCraw. Onusko concedes that
Chase made no employment proposals to her between September 2006
and April 5, 2007, the later date being well after March 15,
2007, when her position at Wells Fargo was eliminated. Given
the evidence, the district court correctly assessed Onusko’s
failure to produce material evidence from which a jury could
find in her favor on the three claims alleged.
Finally, we conclude that the district court did not err in
failing to view the facts in the light most favorable to Onusko
as to when Chase knew or should have known a hiring freeze was
imminent. Nothing in the record supports Onusko’s allegation
that Chase intended to institute a permanent hiring freeze after
her arrival.
IV.
Accordingly, we affirm the judgment of the district court.
We dispense with oral argument because the facts and legal
8
contentions are adequately presented in the materials before the
Court and argument would not aid the decisional process.
AFFIRMED
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