GREGORY H. WOODS, District Judge:
Plaintiff Benjamin Messinger, through counsel, brought this diversity action against Defendant JPMorgan Chase Bank, N.A. ("Chase"), alleging that Chase discriminated against him based on his age and retaliated against him for complaining of age discrimination, in violation of the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. Law § 290 et seq. Chase now moves for summary judgment pursuant to Federal Rule of Civil Procedure 56. For the following reasons, Chase's motion is granted.
Messinger was a Consumer Banking Personal Banker at Chase's Cedarhurst, New York branch (the "Cedarhurst branch") from May 4, 2009 to August 1,
Beginning on February 15, 2012, Lonny Rothman was the Branch Manager of the Cedarhurst branch and Messinger's direct supervisor. Harman Decl., Ex. C (Rothman Deposition Transcript) ("Rothman Dep.") at 92-93. According to Messinger, Rothman treated the younger Personal Bankers at the branch more favorably than Messinger. Specifically, Messinger asserts that Rothman (1) wrongfully denied him product value credits ("PVCs"), a form of commission earned for facilitating certain consumer transactions, "instead giving [PVCs] to younger Personal Bankers," Messinger Aff. at ¶ 15; (2) favored younger Personal Bankers when he "ignored their lateness and other violations of company policy, frequently gave them valuable referrals, and kept them advised of scheduled events about which he did not inform [Messinger]," id. ¶ 12; (3) "interrupted a conversation between a customer and [Messinger] in order to divert the customer to a younger employee" on "multiple occasions," id. ¶ 13; (4) "regularly omitted [Messinger] from the exchange of information at the Cedarhurst branch," id.; and (5) told Evan Lefkowitz, a Business Banker at the Cedarhurst Branch, "not to provide [Messinger] with any information related to branch business," id. ¶ 16. In April and May of 2012, Messinger separately complained about Rothman's alleged favorable treatment of younger bankers to Rothman, to Assistant Branch Manager Camilla Cox, and to District Manager Georgio Muia. Id. ¶¶ 18-19, 21, 23.
With respect to the circumstances leading to Messinger's termination, from 2006 through 2012, Chase held an annual customer promotion as part of its sponsorship of the U.S. Open tennis tournament. Dkt. No. 59 (Declaration of Aphrodite M. Carlucci) ("Carlucci Decl.") at ¶ 3. Under the promotion, Chase Consumer Banking customers who made qualifying deposits in savings or checking accounts received a pair of tickets to the U.S. Open. Id. Customers were limited to one pair of tickets per household, and Chase employees were not eligible to participate. Id. ¶¶ 4-5. Before the customer enrollment period began
Chase's Consumer Banking Marketing Department generated a spreadsheet of all Chase customers who made qualifying deposits for the U.S. Open promotion in order to determine whether more than one customer per household had enrolled, in violation of the eligibility rules. Carlucci Decl. at ¶ 8. In July 2012, Aphrodite Carlucci, a Chase Marketing Senior Manager, reviewed the spreadsheet and observed that both Messinger and his spouse, Galit Feinstein Messinger, were enrolled in the 2012 U.S. Open promotion with the same home address. Id. ¶ 10. Carlucci recognized Messinger's name as potentially referring to a Chase employee because Messinger had previously contacted her for assistance in enrolling a customer in the U.S. Open promotion. Id. ¶ 11. Carlucci also noticed from the spreadsheet that Lefkowitz had enrolled Messinger and his spouse in the promotion. Id. ¶ 12. The Marketing Department later determined that Messinger and his spouse had also enrolled in the 2011 U.S. Open promotion, but that the Department had failed to detect this fact at the time. Id. ¶ 15. Personal Banker Dovid Cohen had enrolled Messinger and his spouse in the 2011 U.S. Open promotion. Rothman Dep. at 158-59. Messinger was the only Chase employee who the Marketing Department identified as enrolled in the 2011 or 2012 U.S. Open promotions. Carlucci Decl. at ¶ 16.
On or about July 12, 2012, Carlucci informed Rothman that Lefkowitz had enrolled Messinger and his spouse in the 2012 U.S. Open promotion, and that employee enrollment in the promotion violated Chase's Code of Conduct. Id. ¶ 13. Rothman subsequently contacted Chase's Human Resources Department, which directed him to Chase's Global Security and Investigations Department ("GSI"). Dkt. No. 58 (Rothman Declaration) ("Rothman Decl."); Ex. 5. GSI conducted an investigation. Dkt. No. 60 (Declaration of Walter Mann) ("Mann Decl."), Ex. 1. Based on his review of bank records, assigned GSI investigator Walter Mann determined that, on June 1, 2012, Messinger had deposited $25,000 into both his solely-owned Chase savings account and into a Chase savings account that he jointly owned with his spouse. Id. Mann further determined that Messinger had participated in the 2011 U.S. Open promotion. Id.
On July 26, 2012, Mann interviewed Lefkowitz, Messinger, and the other Personal Bankers in the Cedarhurst branch — Dovid Cohen, Elana Rose, and Scott Stone. Id. Lefkowitz stated that Messinger and his spouse had approached him on June 1, 2012 and requested that he enroll them in the U.S. Open promotion, and that Messinger had assured him that Chase employees and their family members were eligible for the promotion. Id. Lefkowitz confirmed that he then enrolled Messinger and his spouse in the promotion after they made qualifying deposits. Id. In his interview, Messinger admitted that he had enrolled in both the 2011 and 2012 U.S. Open promotions, and stated that he was unaware
On July 30, 2012, Kai Craig, an employee in Chase's Human Resources Department, reviewed GSI's findings regarding Messinger's participation in the 2011 and 2012 U.S. Open promotions, among other aspects of his employment record. Dkt. No. 57 (Declaration of John W. Egan) ("Egan Decl."), Ex. J at JPMC 461. Human Resources determined that Messinger's employment should be terminated based upon its review of GSI's findings. Harman Decl., Ex. N (Muia Deposition Transcript) ("Muia Dep.") at 42-45, 123.
Rothman Decl., Ex. 7.
The RFT drafted by Rothman was subsequently approved by Muia, Market Manager Andrew Simone, and aligned Human Resources Business Partner Nancy Panetta. Rothman Decl., Ex. 8. After signing the final RFT, Rothman and Muia terminated Messinger on July 31, 2015. Messinger Dep. at 292-93.
As punishment for enrolling Messinger and his spouse in the 2012 U.S. Open promotion, Lefkowitz was issued a written warning. Harman Decl., Ex. H. Lefkowitz's written warning also described a separate incident in which he erroneously transferred funds into an account based on a fraudulent email. Id. As a Business Banker, Lefkowitz did not report to Rothman. Rothman Dep. at 172. Personal Banker Dovid Cohen was not disciplined for enrolling Messinger and his spouse in the 2011 U.S. Open promotion. Id. at 160-61.
Under Federal Rule of Civil Procedure 56(a), summary judgment is warranted if "the movant shows that there is no genuine dispute as to any material fact and that the movant is entitled to a judgment as a matter of law." In determining whether a genuine issue of material fact exists, the Court must resolve all ambiguities and draw all reasonable inferences against the moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A factual dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. at 248, 106 S.Ct. 2505. Thus, "[c]onclusory allegations, conjecture, and speculation,... are insufficient to create a genuine issue of fact." Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir.1998). Similarly, "[v]ague assertions supported only by self-serving statements in the nonmoving party's affidavit are insufficient to defeat a properly supported summary judgment motion." Rodriguez v. Allstate Indem. Co., No. 12-cv-340S, 2015 WL 3823730, at *2 (W.D.N.Y. June 19, 2015) (citing Western World Ins. Co. v. Stack Oil, Inc., 922 F.2d 118, 121 (2d Cir.1990)). Rather, "the non-movant must produce specific facts indicating that a genuine factual issue exists." Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998) (emphasis added).
Age discrimination claims under the NYSHRL are analyzed under the burden-shifting framework articulated by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). See Gorzynski v. JetBlue Airways Corp., 596 F.3d 93, 106 (2d Cir.2010). At the first step, the plaintiff must establish a prima facie case of discrimination
Here, the Court will simply assume, arguendo, that Messinger can establish a prima facie case of age discrimination. Chase has not challenged this conclusion in its motion and has articulated a legitimate reason for terminating Messinger's employment (the sole adverse employment action at issue in this case) for the reasons stated below, and evidence probative of a prima facie inference of discrimination is typically also probative of pretext. See Idrees v. City of New York, No. 04-cv-2197 (LAK), 2009 WL 142107, at *9 (S.D.N.Y. Jan. 21, 2009) (citing cases for the proposition that, "[d]espite the elaborate process set up in McDonnell Douglas, Second Circuit case law makes clear that a court may simply assume that a plaintiff has established a prima facie case and skip to the final step in the McDonnell Douglas analysis, as long as the employer has articulated a legitimate nondiscriminatory reason for the adverse employment action").
With respect to the second step of the analysis, Chase's stated reasons for terminating Messinger's employment were that he participated in the 2012 U.S. Open promotion in knowing violation of its eligibility rules, that he also participated in the 2011 U.S. Open promotion in violation of its eligibility rules, and that he exceeded the maximum ticket allowance of one or both promotions. See Rothman Decl., Ex. 7(RFT). This alleged conduct violated both Chase's marketing promotion policies
Turning to this issue now, Chase argues that the evidence does not permit a finding that its stated reasons for terminating Messinger were a pretext for age discrimination. See Dkt. No. 63 ("Chase Mot.") at 8-11. The Court agrees. As indicated, in attempting to satisfy his burden to establish pretext, Messinger asserts that there is no evidence that he knew that employees were ineligible for the U.S. Open promotion. As a preliminary matter, however, Messinger's purported knowing violation of the eligibility rules of the 2012 U.S. Open promotion was just one of three forms of misconduct described in the RFT. See Rothman Decl., Ex. 7. Without mentioning whether he was aware of the applicable rules, the RFT also stated that Messinger had attempted to obtain four tickets to the U.S. Open for his household, instead of the maximum two, and that he had participated in the 2011 U.S. Open promotion. Id. Messinger has admitted to engaging in this misconduct, which indisputably violated the eligibility rules of the promotions, Chase's marketing promotion policies, and/or Chase's Code of Conduct.
More importantly, the relevant question is not whether Messinger knew that employees were ineligible for the promotion, but whether Chase honestly believed that he knew that employees were ineligible for the promotion. See, e.g., Shah v. Eclipsys Corp., No. 08-cv-2528 (JFB), 2010 WL 2710618, at *10 (E.D.N.Y. July 7, 2010) ("To be a valid legitimate, nondiscriminatory reason for termination, an employer's belief need not be correct, only honestly held."); Peterson v. Connecticut Light & Power Co., No. 3:10-cv-02032 JAM, 2014 WL 7156648, at *6 (D.Conn. Dec. 15, 2014) ("[A]n employer's good faith belief that an employee engaged in misconduct is a legitimate reason for terminating her, and the fact that the employer is actually wrong is insufficient to show that the alleged misconduct is a pretext for discrimination." (emphasis and internal quotation marks
In any event, "a reason cannot be proved to be a `pretext for discrimination' unless it is shown both that the reason was false, and that discrimination was the real reason." St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 515, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) (emphasis in original). In attempting to show that his termination was discriminatory, Messinger principally relies on evidence purportedly demonstrating that Rothman treated him less favorably than similarly situated younger employees. See Messinger Opp. at 11-14; Clark v. Jewish Childcare Ass'n, Inc., 96 F.Supp.3d 237, 255, No. 12-cv-9372 (KMK), 2015 WL 1452134, at *13 (S.D.N.Y. Mar. 31, 2015) ("A plaintiff may show pretext by demonstrating that similarly situated employees outside the protected class were treated differently." (internal quotation marks omitted)). The majority of this evidence, however, is made up of Messinger's own vague, conclusory, and speculative statements that he was treated unfavorably. See, e.g., Messinger Aff. at ¶ 12 ("In addition to granting younger Personal Bankers PVC's that rightfully belonged to me, Mr. Rothman ignored their lateness and other violations of company policy, frequently gave them valuable referrals, and kept them advised of scheduled events about which he did not inform me."); accord id. at ¶¶ 13-16. Such statements are insufficient to defeat summary judgment. See Kerzer, 156 F.3d at 400; Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998) ("The non-moving party may not rely on conclusory allegations or unsubstantiated speculation. Instead, the non-movant must produce specific facts indicating that a genuine factual issue exists." (citations and internal quotation marks omitted) (emphasis added)).
The sole specific comparator evidence identified by Messinger is evidence demonstrating that Lefkowitz was issued a written warning for, among other things, enrolling Messinger and his spouse in the 2012 U.S. Open promotion, and that Cohen was not disciplined for enrolling Messinger and his spouse in the 2011 U.S. Open promotion. See Harman Decl., Ex. H; Rothman Dep. at 160-61; Messinger Opp. at 13-14. But Lefkowitz was not supervised by Rothman, see Rothman Dep. at 172, which weighs against finding that that he and Messinger are similarly situated, see Akinyemi v. Chertoff, No. 07-cv-4048 (AJP), 2008 WL 1849002, at *5 (S.D.N.Y. Apr. 25, 2008) ("Whether or not a plaintiff
Finally, Messinger relies on evidence purportedly demonstrating that Rothman played a significant role in the decision to terminate his employment. See Messinger Opp. at 12. It follows from the above analysis, however, that the nature of Rothman's role in the termination decision is immaterial, as the evidence does not permit a finding that he harbored a discriminatory bias.
In any event, even if the evidence permitted such a finding, Chase would still be entitled to summary judgment. The Second Circuit has suggested that, in order for an individual's impermissible bias to "taint" an adverse employment decision, that individual must "play[ ] a meaningful role in the [decisional] process." Bickerstaff v. Vassar Coll., 196 F.3d 435, 450 (2d Cir.1999); see also Rajaravivarma v. Bd. of Trustees for Connecticut State Univ. Sys., 862 F.Supp.2d 127, 150 (D.Conn.2012) ("[T]he impermissible bias of a single individual can infect the entire group of collective decision makers ... at least when the decision makers are overly deferential to the biased individuals' recommendations...." (internal quotation marks omitted) (emphasis added)). Similarly, in assessing a statute prohibiting discrimination on the basis of an employee's membership in the military, the Supreme Court has indicated that an employer can be held liable for the conduct of a biased supervisor only if the ultimate decision maker "relies on facts provided by the biased supervisor" in deciding to take an adverse employment action. Staub v. Proctor Hospital, 562 U.S. 411, 421, 131 S.Ct. 1186, 179 L.Ed.2d 144 (2011); see also Rajaravivarma, 862 F.Supp.2d at 149-50 (applying Staub to employment discrimination claims under Title VII); cf. Lobato v. New Mexico Env't Dep't, 733 F.3d 1283, 1295 (10th Cir.2013) (concluding that, under Staub, "an employer is not liable under a subordinate bias theory if the employer did not rely on any facts from the biased subordinate in ultimately deciding to take an adverse employment action — even if the biased subordinate first alerted the employer to the plaintiff's misconduct").
Here, the following facts are undisputed. Carlucci, a Marketing Senior Manager, made the initial determination that Messinger had enrolled in the 2012 U.S. Open promotion in violation of its eligibility rules and ticket allowance. See Carlucci Decl. at ¶¶ 10-11. Carlucci notified Rothman of this misconduct, who then notified Human Resources and GSI. Id. ¶ 13; Rothman Decl., Ex. 5. GSI conducted an investigation in which it determined, based on its
In light of these undisputed facts, Rothman's role in the decision to terminate Messinger's employment cannot be characterized as meaningful, as it was essentially limited to relaying or summarizing facts provided to him by others. Under these circumstances, any impermissible bias on the part of Rothman cannot be imputed to Chase in determining whether Messinger's termination was discriminatory. Cf. Staub, 562 U.S. at 421, 131 S.Ct. 1186. Accordingly, even if the record permitted a finding that Rothman was biased against older employees (which it does not), a reasonable juror could not conclude that Messinger's termination was discriminatory.
Chase's summary judgment motion is thus granted with respect to Messinger's age discrimination claims.
Retaliation claims under the NYSHRL are also evaluated under the McDonnell Douglas burden-shifting framework. Zann Kwan v. Andalex Grp. LLC, 737 F.3d 834, 843-44 (2d Cir.2013). At the first step, the plaintiff must establish a prima facie case of retaliation by showing that (1) he participated in a protected activity, (2) the defendant was aware of the protected activity, (3) he suffered an adverse employment action, and (4) there was causal connection between the protected activity and the adverse employment action. Id. at 844. After establishing a prima facie case, the burden shifts to the defendant to articulate a legitimate, non-retaliatory reason for the adverse employment action. Id. at 845. If the defendant does so, the plaintiff must demonstrate that the defendant's explanation is a mere pretext for retaliation. Id.
Here, the Court will assume, arguendo, that Messinger can establish a prima facie case of retaliation, especially given relatively short amount of time that elapsed between the protected activity — Messinger's purported complaints of age discrimination to Rothman, Cox, and Muia in April and May of 2012 — and Chase's decision to terminate Messinger's employment in July 2012. See Gorman-Bakos v. Cornell Co-op Extension of Schenectady Cnty., 252 F.3d 545, 554 (2d Cir.2001) ("In this Circuit, a plaintiff can indirectly establish a causal connection to support a discrimination or retaliation claim by showing that the protected activity was closely followed in time by the adverse [employment] action." (internal quotation marks omitted)). The Court agrees with Chase, however, that it has articulated a legitimate, non-retaliatory reason for Messinger's termination — his violations of the rules of two U.S. Open promotions — and that Messinger cannot establish that this explanation was a pretext for retaliation. See Chase Mot. at 14-15.
In attempting to establish pretext, Messinger relies on the same evidence as the evidence that allegedly supports his age
For the foregoing reasons, Chase's summary judgment motion is granted in its entirety and Messinger's claims are dismissed. The Clerk of Court is instructed to enter judgment accordingly and to close the case.
SO ORDERED.
