The opinion of the court was delivered by: William J. Martini Judge
This matter comes before the Court on Defendants Hudson Trader Investment Services d/b/a HTI Agency and Essex Corporations' ("Defendants") Rule 56 motion for summary judgment, seeking to dismiss Plaintiff Robert Spencer's complaint in its entirety. The motion is opposed and the Court adjudicates this matter on the papers. Fed. R. Civ. P. 78. For the reasons stated below, Defendants' motion is GRANTED and Plaintiffs' complaint is DISMISSED in its entirety as to all Defendants.
Plaintiff is an African American male born on June 27, 1952. Defendant HTI is a securities and insurance sales agency owned by Defendant Essex which operates through sales representatives located in bank branches of Hudson United Bank. (Def's Motion at 1; November 3, 2005 Affidavit of Charles B. Carroll, Jr. in Support of Defendants' Motion for Summary Judgment ("Nov. 3 Carroll Aff.") ¶ 3.)*fn1 HTI offers clients investment options including mutual funds, annuities, securities and insurance. HTI divides the bank branches into assorted territories with roughly equal deposit bases and then assigns these territories to representatives. Plaintiff was forty-six years old when he was first hired as a sales representative by HTI Program Director Emil Defeo and HTI Regional Sales Manager Douglas Voight in September 1998 and given a territory consisting of Paterson, New Jersey and surrounding areas. Plaintiff performed well enough at that time and region to receive a commendation from HTI. On December 15, 1999, Plaintiff resigned from HTI by letter to Defeo in which Plaintiff stressed that his tenure at HTI was "happy and productive" and praised his HTI colleagues and management. (Nov. 3 Carroll Aff. at Ex. G.)
In April 2000, Plaintiff returned and later signed a new contract with HTI under substantially the same terms and conditions of his 1998 contract. The contract could be terminated at any time, with or without cause, and for failure to meet minimum revenue requirements for any consecutive three-month period; HTI's sales force each had a $20,000 monthly minimum. (Nov. 3 Carroll Aff. ¶ 6.) Plaintiff was re-hired on a decision by Defeo and Charles B. Carroll; Carroll then became his manager during his second tenure at HTI. Upon his re-hire, Plaintiff was re-assigned to the same territories he had previously covered plus additional territories.*fn2 Between early 2001 and 2002, Plaintiff requested he be removed from one of his territories, the Orange branch, because of conflict with the branch manager and HTI removed him first from that branch and then from two other branches, West Orange and Roseland, when the same Orange manager moved to cover those areas as well.*fn3 For a period of time, Plaintiff also temporarily covered the West Patterson and Little Falls territories.
On April 30, 2002, Plaintiff was placed on probation because his sales performance regularly fell below the $20,000 minimum required in his employment contract. For example, in January, February and March 2002, he averaged less than 50% of this required minimum. At that time, Plaintiff was warned in writing that he may be terminated if his performance did not improve above the required minimums. (Nov. 3 Carroll Aff. at Ex. J.) Plaintiff's performance did improve, and during April-July 2002 he averaged almost 90% of his required minimum, but he still failed to meet the $20,000 requirement during three of the four months. (Nov. 3 Carroll Aff. at Ex. I.) In a June 29, 2002 memo to Plaintiff, Carroll recognized his improved performance and offered to take him off of probation if Plaintiff had "one more month above $20,000." (Nov. 3 Carroll Aff. at Ex. K.) However, Plaintiff only achieved 37% of that goal in August 2002, 61% in September 2002, and 25% in October 2002. (Nov. 3 Carroll Aff. at Ex. I; Spencer Aff at Ex. G.)
On October 31, 2002, Carroll and Plaintiff exchanged emails regarding Plaintiff's failure to meet target sales; Carroll also asked Plaintiff to explain certain unexcused absences. Plaintiff replied that he realistically expected $15,000 monthly "based on the branches you guys left me with." Plaintiff further responded that he thought it was acceptable to take time off if he had proper coverage; he further asserted that he had never previously cleared absences before, and that he "has never heard of anyone having to have days off cleared." (Nov. 3 Carroll Aff. at Ex. N.) Carroll replied in a memo dated November 4, 2002 that Plaintiff had cleared time with him in the past and must continue to do so in the future; Carroll further said that he considered "the email you sent me to be insubordinate" and referred Plaintiff to the terms of his probation regarding insubordinate behavior. (Nov. 3 Carroll Aff. at Ex. M, O.) Plaintiff and Carroll met repeatedly in November 2002 to discuss Plaintiff's progress. In a memorandum dated November 21, 2002, Carroll memorialized that Plaintiff had asked for "space to allow you to meet your goals" and Carroll intended "to help . . . in any way I can." (Nov. 3 Carroll Aff. at Ex. P.) However, Plaintiff's November 2002 sales were only $11,892. During December 2002, Carroll met with Plaintiff to allow him to explain the unexcused absences; Plaintiff was unable to do so. (Nov. 3 Carroll Aff. ¶ 27.)
After discussion between Carroll and Defeo, HTI terminated Plaintiff on December 31, 2002. In a memorandum of the same date from Carroll to Plaintiff and copying Defeo, Carroll outlined the reasons for Plaintiff's termination including Plaintiff's failure to meet sales minimums after his April 2002 probation, his unexcused absences and insubordination.
Plaintiff filed a charge of discrimination against HTI with the Equal Employment Opportunity Commission ("EEOC"); and EEOC issued a Notice of Right to Sue (Issued on Request) dated September 5, 2003 stating that EEOC was terminating Plaintiff's case at Plaintiff's request and because more than 180 days had passed since the filing of the Charge. On December 3, 2003, Plaintiff filed his Complaint with this Court claiming causes of action under both Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2, and the Age Discrimination in Employment Act of 1967 ("ADEA"), 29 U.S.C. § 623, alleging discriminatory treatment of Plaintiff by Defendant on the basis of race and age.*fn4
Plaintiff's first cause of action, his race discrimination claim, alleges that he was discriminately assigned to minority dominated and Spanish-speaking territories, that his request for transfer was denied and the territories he sought were given to non-African American consultants, and that his termination for failure to meet sales goals was based on his race.
Plaintiff's second cause of action, for age discrimination, alleges that HTI denied Plaintiff assignment of new territories, instead hiring a consultant aged below forty while Plaintiff was fiftyone.
Plaintiff demands a declaratory judgment that he suffered discrimination and also demands compensatory, general and special damages with interest, punitive damages, costs and fees.
I. Standard for Summary Judgment ...