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Richard A. Byrd v. Merrill Lynch

July 8, 2011


The opinion of the court was delivered by: Thompson, U.S.D.J.




This matter comes before the Court on the Motion for Summary Judgment [docket # 21] filed by Defendant Merrill Lynch.*fn1 Plaintiff Richard A. Byrd opposes the motion [26]. The Court has decided the matter after considering the parties' submissions and without holding oral argument, pursuant to Fed. R. Civ. P. 78(b). For the reasons given below, the Defendant's motion is granted.


Plaintiff is an African-American man who worked for Merrill Lynch from 1995 until his termination on December 15, 2008. (Def.'s Statement of Undisputed Material Facts in Supp. of Summ. J. ¶ 1) ("Def. SUF") [21-2]; (Compl. ¶ 6, 18) [1]. Plaintiff claims that he was terminated because of his race and sex in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 1981 et seq., and the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12. (Compl. ¶ 20.)

More specifically, Plaintiff believes he was discriminated against because he was perceived to be in a romantic relationship with a Caucasian female colleague. In moving for summary judgment, Defendant responds that Plaintiff has failed to establish a prima facie case of discrimination, and even if Plaintiff had met his initial burden, Defendant had a legitimate, non-discriminatory reason for firing him: he violated the company's anti-harassment policy. (Mem. in Supp. of Mot. for Summ. J. 2) [21-1].

In 1995, Plaintiff began working for Merrill Lynch in New Jersey. (Def. SUF ¶ 1.) When he was terminated in 2008, Plaintiff was working in the Cash Management Account Operations ("CMA") Department as a supervisor of the unit tasked with monitoring fraudulent activity on credit cards. (Id. at ¶¶ 1, 3.) In the CMA Department, Plaintiff reported to Matt Cissne, Manager of CMA Operations, who reported to James Macklin, Director of CMA Operations. (Id. at ¶ 2.) Merrill Lynch maintains an anti-harassment policy, which prohibits unlawful discrimination and harassment-including actions, words, jokes, and comments- based on sex or other legally-protected characteristics. (Id. at ¶ 4.) Plaintiff was familiar with and had access to this policy. (Id. at ¶ 6.)

In 2004, Merrill Lynch received complaints from two African-American female employees who alleged that Plaintiff-their supervisor-disrespected women and minorities, leered at women, and referred to himself as the "head nigger in charge." (Id. at ¶¶ 8--9.) Employee Relations representative Carol Wolkiewicz investigated the complaints, interviewing the accusers and Plaintiff. Plaintiff denied the allegations, insisting that the women were retaliating against him for changing their work schedules. (Id. at ¶ 10.) Wolkiewicz documented the complaints and her investigation in a memorandum, which she emailed to Plaintiff and placed in Plaintiff's employment file. (Id. at ¶¶ 11--12 (citing Decl. of Carol Wolkiewicz, Ex. A [22-1] and Ex. B [22-2]).) She also advised Plaintiff of the importance of respect and professionalism in the workplace. (Decl. of Carol Wolkiewicz ¶ 7) [22].

In 2008, Merrill Lynch again received a complaint from a female employee stating that Plaintiff had subjected her and other women to unwelcome comments and touching. (Def. SUF ¶ 15); (Decl. of Janice Miholics ¶ 10) [21-4]. Plaintiff was placed on administrative leave pending an investigation. (Def. SUF ¶ 16.) The investigation was performed by Vice President of Employee Relations Sharon Lontoc, who interviewed approximately ten employees. (Id. at ¶ 19.) According to the declaration of Senior Vice President of Human Resources, Janice Miholics, a number of the employees interviewed by Lontoc indicated that Plaintiff had touched them inappropriately and made inappropriate sexual comments, including "let's have sex and get it over with," "damn you look good today," and "boy, you fill out your shirt nicely."*fn2 (Decl. of Janice Miholics ¶¶ 11--12.) Lontoc then interviewed Plaintiff about the allegations. (Def. SUF ¶ 22.) Plaintiff denied doing anything inappropriate but admitted that he "probably did touch someone's shoulder" and "maybe [he] left [his] hand there too long . . . ." (Certification of Richard A. Byrd, Ex. A, Byrd Dep. 138:8--10) ("Byrd Dep.") [27-1]. He also acknowledged that he has probably said things like, "oh, you look nice today," but denied asking any employee for sex. (Byrd Dep. 135:2--5, 143:1--10.) After completing the investigation, Merrill Lynch terminated Plaintiff's employment on December 15, 2008. (Def. SUF ¶ 32.) The ultimate decision to fire Plaintiff was made by James Macklin, the Director of CMA Operations, and Cheryl Ely, a Human Resources Vice President. (Opp'n Br. 21--22.)

Although Plaintiff does not dispute the facts and events set forth above, he contends that there is another explanation for the 2004 and 2008 incidents that led to his termination. Plaintiff states that in 2004, he and unit co-supervisor Andrew Kemper changed the work schedules of several of their subordinates. (Pl.'s Statement of Uncontested Facts ¶¶ 1--2) ("Pl. SUF") [28]. This change caused a backlash from their subordinates, and soon after, the human resources department began receiving complaints against Plaintiff and Kemper. (Pl. SUF ¶ 3--4.) Plaintiff believes that the 2004 accusations were fabricated by his subordinates in an attempt to get him fired and get their old schedules back. (Pl. SUF ¶ 4.) These complaints led to the Wolkiewicz investigation and the consequent memorandum placed in Plaintiff's file. During her investigation, Wolkiewicz never interviewed Kemper about the allegations against him or Plaintiff. (Pl. SUF ¶ 5.) Plaintiff believes Kemper would have corroborated his version of events, and he now claims that the 2004 investigation was biased, incompetent, and incomplete because of the failure to interview Kemper. (Pl.'s Resp. to Def. SUF ¶ 9--10.)

Plaintiff states that, in 2008, with the threat of layoffs looming, his subordinates again conspired to have him terminated by filing false sexual harassment complaints. (Pl. SUF ¶ 11.) Plaintiff believes the basis for these 2008 complaints-which led to the investigation by Sharon Lontoc and eventually to Plaintiff's termination-was his perceived romantic relationship with another employee, a Caucasian female named Marina Uva with whom Plaintiff had been friends for years but never romantically involved. (Pl. SUF ¶ 12.) In part, Plaintiff's conclusion appears to be based on an incident recounted in Uva's certification describing how, prior to the complaints being filed against Plaintiff, she observed an email that she now believes referred to a conspiracy to target Plaintiff based on their relationship. (Certification of Marina Uva ¶ 7) [27]. Uva's cryptic certification does not relate what the email said or explain how she came to the conclusion that it was evidence of an alleged conspiracy.

Plaintiff believes that it was the interracial nature of the perceived relationship that Defendant disapproved of and that Defendant's decision to terminate him was motivated, at least in part, by the intent to discriminate against his association with Uva. It is unclear, however, how Plaintiff makes the leap from contending that his accusers were motivated by Plaintiff's perceived relationship with Uva to arguing that Lontoc's investigation and Ely and Macklin's ultimate decision to terminate him were also motivated by the relationship. In any event, Plaintiff claims that "it is obvious that [Lontoc] was biased and had her mind made up from the outset." (Opp'n Br. 14.) To support this claim, Plaintiff highlights four pieces of evidence: (1) Lontoc mistreated Uva during the investigation; (2) Lontoc's investigation focused inordinately on Plaintiff's relationship with Uva; (3) the investigation ignored key witnesses who would have been favorable to Plaintiff; and (4) Plaintiff's supervisor, Matt Cissne, was retaliated against for supporting Plaintiff. (Id.) According to Plaintiff, this evidence also shows that the internal investigation conducted by the Defendant did not satisfy guidelines set by the Equal Employment Opportunity Commission ("EEOC"), and the Court should thus discredit the outcome of the investigation. (Id. at ¶¶ 13--14.)

In addition to the evidence that supposedly shows Lontoc's bias, Plaintiff adds other facts to support his claim. First, Plaintiff names four other pairs in the CMA department who were apparently perceived to be in a romantic relationship. (Pl. SUF ¶ 25); (Opp'n Br. 29). Plaintiff alleges that, because none of the pairs involved mixed races, none were the target of complaints. (Opp'n Br. 29.) Second, Plaintiff submits a certification from another Merrill Lynch employee, Phillip Justin Hill, recounting an incident in which one of Plaintiff's accusers boasts about how she and other women got Plaintiff fired. (Certification of Philip Justin Hill ¶¶ 6--9) [27].


A.Legal Standard

Summary judgment is proper when "the pleadings, the discovery and disclosure materials, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court will "view the inferences to be drawn from the underlying facts in the light most favorable to the party opposing the motion." Id.; Curley v. Klem, 298 F.3d 271, 276--77 (3d Cir. 2002). In resolving a motion for summary judgment, the Court must determine "whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law." Anderson v. Liberty Lobby, 477 U.S. 242, 251-- 52 (1986). More specifically, the Court must grant summary judgment against any party "who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). If the movant's motion is supported by facts, the party opposing summary judgment "may not rely merely on allegations or denials in its own pleading; rather, its response must . . . set out specific facts showing a ...

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