Bank of America Employee RIF'd at 56 Lacks Age Bias Claim, 2d Circuit Affirms

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By Kevin McGowan

Sept. 9 — A 56-year-old Bank of America Corp. employee terminated in a reduction in force has no Age Discrimination in Employment Act claim because he can't show the employer's asserted performance-based reasons for selecting him for the RIF were a pretext for age bias, the U.S. Court of Appeals for the Second Circuit ruled Sept. 5.

Affirming summary judgment for Bank of America, the court said John Delaney, who worked for Bank of America and its predecessors for 22 years before his termination, failed to raise a triable issue that age was the “but for” cause of his discharge.

Rather, the evidence supports Bank of America's explanation that managers selected Delaney for the RIF based on instructions to choose underperforming employees whose dismissal would have the least impact on the business, the court said.

The evidence establishes that Bank of America “engaged in a RIF in September 2010 and that 418 other employees were included in that month's RIF list,” the appeals court said. “Although Delaney was the only member of the High Yield group to be terminated and also the oldest, the evidence supports [Bank of America's] assertion that Delaney was terminated because of his poor performance.”

Delaney received a rating of “exceeds/meets” expectations in his 2009 performance review, after a year in which his commissions exceeded $1.6 million while working for the Fixed Income Middle Markets Sales Group.

But the court said it was undisputed that after Delaney was transferred to the High Yield group in March 2010, his production fell off. He received a negative midyear performance review in July 2010.

When Bank of America selected Delaney for the RIF, he ranked 136th among all the company's sales personnel and his performance in the High Yield group was the worst of all employees at his level, the court said.

Delaney sought to introduce a former co-worker's draft Equal Employment Opportunity Commission charge that described alleged age-based comments by Bank of America managers.

But the district court properly excluded that document as hearsay, the Second Circuit said.

Even if such evidence were admissible, the court said, “comments about another employee's age, removed from any context suggesting that they influenced decisions about Delaney's own employment, do not suffice to create a genuine issue of fact as to whether age was the but-for cause of Delaney's termination.”

Contract Claim Properly Dismissed

Delaney also alleged breach of contract, based on alleged oral promises that his compensation wouldn't suffer when management moved Delaney from Middle Markets to the High Yield group.

“The district court correctly noted that Delaney's various statements created an ambiguity as to the actual nature of the oral promise he asserted was made to him by” Bank of America, the Second Circuit said.

Under New York law, a contract can be formed without a written agreement, but the plaintiff must demonstrate that the terms of any agreement are definite, the court said. “Delaney's allegation that [Bank of America] promised that his compensation would not suffer lacks the definiteness required by New York law,” the court said.

Judges Ralph K. Winter, Richard C. Wesley and Peter W. Hall joined in the per curiam opinion.

Feder Kaszovitz LLP represented Delaney. Proskauer Rose LLP represented Bank of America.

To contact the reporter on this story: Kevin McGowan in Washington at

To contact the editor responsible for this story: Susan J. McGolrick at

Text of the opinion is available at