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October 30, 1989

JAMES N. PERRY, Plaintiff,

The opinion of the court was delivered by: BARRY


 This is an age discrimination case. Plaintiff James N. Perry (hereinafter "Perry") filed the present action against his former employer, Prudential-Bache Securities, Inc. (hereinafter "Pru-Bache"), alleging that he was unlawfully terminated in violation of the Age Discrimination In Employment Act, 29 U.S.C. §§ 621-634 (hereinafter "ADEA"). Pursuant to the ADEA, Perry seeks reinstatement to his former position, as well as damages. See Amended Complaint, paras. 28-39. Perry has also brought pendent claims under both New York and New Jersey law, asserting, inter alia, that his termination violated public policy with respect to fair employment practices. Id. at paras. 40-47. Perry, who was a highly compensated executive with over thirty years of experience at Pru-Bache, seeks total damages well in excess of $ 10,000,000.00. See Amended Complaint, paras. 51(1)-51(5).

 Present before the Court is the motion of Pru-Bache for summary judgment as to all of Perry's claims. For the reasons that follow, Pru-Bache's motion will be granted.


 IIa. Background

 Perry was born on November 14, 1930, and graduated from Yale University with a bachelor's degree in 1952. After serving in the United States Army as a First Lieutenant, he undertook graduate work in business studies at New York University in 1956. See Plaintiff's Memorandum Of Law In Opposition To Motion For Summary Judgment (hereinafter "Perry Opposition Brief") at 5; Deposition of James N. Perry, taken on December 7 and 19, 1988 (hereinafter "Perry Dep.") at 6 (deposition attached to the Affidavit of Ronald M. Green, sworn to August 17, 1989 (hereinafter "Green Aff.") at Exh. B.)). In 1956, Perry joined Halsey, Stuart & Co., Inc., a predecessor firm to Pru-Bache, as a trainee. Perry Opposition Brief at 5. In 1958, he was promoted to the Municipal Bond Department as a junior underwriter. Id. at 6. In 1973, at which time Perry was serving as the Manager in the Municipal Bond Department, Bache & Co. acquired Halsey, Stuart & Co. After the merger of these two firms, which were then constituted as Bache Halsey Stuart Inc., Perry was made Manager of National Underwriting. Perry continued in this position until 1981, when the Prudential Insurance Company of America acquired Bache Halsey Stuart and formed the entity which constitutes the present defendant, Prudential-Bache Securities, Inc. (Pru-Bache). Amended Complaint at paras. 9, 10; Perry Dep. at 18-19.

 In his position as National Manager of Underwriting for Pru-Bache, Perry was in charge of the firm's underwriting activities involving both competitive and tax-exempt bond issues. Id. at 8; Deposition of Gerald P. McBride, taken on December 29, 1988 and February 16, 1989 (hereinafter "McBride Dep.") at 10-11 (deposition attached to the Green Aff. at Exh. C.)). He was chiefly involved in establishing pricing systems for the bonds, that is, setting a competitive interest rate that would be both high enough to attract investors, but low enough to also be attractive to the sponsor of the bonds. Perry Dep. at 11-12.

 The job of National Manager of Underwriting, while a position of considerable importance involving tens of millions of dollars, carried with it comparatively few broad management responsibilities. As the National Manager, Perry was responsible for supervising five underwriters in New York and receiving reports from the trader underwriters located in Pru-Bache's twelve regional offices. Perry Dep. at 13-14; McBride Dep. at 11; Memorandum Of Law In Support Of Defendant's Motion For Summary Judgment (hereinafter "Pru-Bache Movant Brief") at 7.

 The parties do not dispute the fact that Perry enjoyed an excellent reputation in his capacity as an underwriter. His job evaluations consistently show that he was respected throughout the bond industry and that he performed the underwriting functions of his job with great skill. Pru-Bache Movant Brief at 7; McBride Dep. at 14, 26; Indeed, one of his supervisors summarized his performance as of January, 1983, as follows: "Jim is still recognized as the premier competitive underwriter in our business. He is also one of the smartest people in the municipal industry. He has helped public finance on a number of very important presentations this year. We ranked #2 in competitive underwriting this year." Perry Opposition Brief at 9; Affidavit of William P. Ford, sworn to September 8, 1989, (hereinafter "Ford Aff.") at Exh. I.

 Despite this clear recognition of Perry's skill as an underwriter, his immediate supervisor, Gerald P. McBride (hereinafter "McBride"), who was then serving as Manager of the Municipal Department, held reservations concerning Perry's ability to carry out the managerial, as opposed to the underwriting, tasks of his job. McBride Dep. at 24-26. McBride believed that Perry was a poor communicator, aloof, and did not follow matters in his office in sufficient detail. Id. at 27.

 In March, 1985, a reorganization of Pru-Bache took place. The Municipal Department (along with the Public Finance Department) was merged into a newly created group, the Tax-Exempt Division. Pru-Bache Movant Brief at 8. McBride became the manager of this Division. As a consequence of his promotion, McBride's former job as Manager of the Municipal Department became vacant. McBride Dep. at 7. McBride's immediate supervisor, James Glynn, (hereinafter "Glynn"), who was then serving as Executive Vice President in charge of the Fixed Income Group, recommended that Perry be promoted to fill McBride's former position as Manager of the Municipal Department. McBride Dep. at 19-20; Pru-Bache Movant Brief at 8. McBride objected to Perry's promotion to manager of the bond department, and expressed his reservations, outlined above, directly to Glynn. McBride Dep. at 19-20. He reiterated these objections at a meeting which was held with the Chairman of the Board, George Ball (hereinafter "Ball"). McBride Dep. at 21-22. It was, nevertheless, Glynn's position that Perry deserved a chance to become "a manager" and, in March, 1985, Perry was promoted to the position that McBride had formerly held. McBride Dep. at 23; Pru-Bache Movant Brief at 9. It was this position, with its vastly greater responsibilities and managerial scope, and in which Perry earned $ 350,000 per year, from which he was dismissed eighteen months later, in October, 1986. It is this dismissal which he challenges before this Court as having been undertaken in bad faith and in violation of the ADEA.

 During the period in which Perry served as Manager of the Municipal Department, i.e., from March, 1985, to October, 1986, several personnel changes took place in the management structure immediately above the position in which Perry served. While Perry's immediate supervisor continued to be McBride, the duties of McBride's own supervisor (Glynn) were taken over by James T. Gahan (hereinafter "Gahan") who, in May, 1985, became President of the Capital Markets Group. Deposition of James T. Gahan, taken on February 15, 1989 (hereinafter "Gahan Dep.") at 5, 8-9 (deposition attached to Green Aff. at Exh. D.). Pru-Bache Movant Brief at 10. In May of 1986, however, Gahan was promoted to President of Capital Funding, and one Leland Paton (hereinafter "Paton") took over Gahan's former position as President of Capital Markets. Gahan Dep. at 64; Pru-Bache Movant Brief at 10. At the time Perry was dismissed in October, 1986, the immediate command structure over the position he held as Manager of the Municipal Department, in ascending order, was as follows: 1) McBride (previous supervisor for two and one half years, now Director of the Tax-Exempt Division); 2) Paton (President of Capital Markets); 3) Gahan (President of Capital Funding).

 IIb. Perry's Performance As Manager of the Municipal Department

 Perry's new position as Manager of the Municipal Department involved new and greatly expanded duties. In addition to overseeing his replacement as chief underwriter, Perry was required to handle trading, retail sales development, and the firm's new research efforts in the bond area. Perry Dep. at 25. He was required, as well, to actively oversee and manage the personnel in the regional offices, whereas in his former position he had merely been required to guide the trader underwriters in the local offices. Perry Dep. at 26-27; Pru-Bache Movant Brief at 9. He, thus, moved from a position in which he was primarily engaged in underwriting and the supervision of his five key underwriters in New York (and the regional trader underwriters in the local offices) to the active supervision of all of the regional bond work, a job encompassing the supervision of over 130 employees. Perry Dep. at 42-43, 25; Pru-Bache Movant Brief at 9.

 Perry's supervisors were not happy with his management of the Municipal Department. The concerns of Messrs. McBride, Paton and Gahan were grouped into four categories, each of which will be reviewed in more detail below. As an overview, however, these four areas can be summarized as follows. First, his supervisors felt that Perry's day to day management of the Municipal Department was far too loose in that he failed to provide adequate supervision and guidance to his subordinates. They also complained that he failed to properly supervise expense accounts, and failed to visit the regional offices with any frequency. Pru-Bache Movant Brief at 12-13. Second, his supervisors were frustrated that he resisted following their request that he "mark-to-market" the firm's own bond holdings in a manner describing high and low periods of profitability. Pru-Bache Movant Brief at 14-15. Third, his supervisors were dissatisfied with the level of profitability of the bond section. Pru-Bache Movant Brief ...

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