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Oliver Massaro v. Ubs

May 31, 2012


On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-3406-08.

Per curiam.


Submitted:*fn1 April 25, 2012 -

Before Judges Cuff, Lihotz and St. John.

After fifteen months of employment at defendant UBS Services USA, LLC (UBS), plaintiff Oliver Massaro was terminated from his employment. He filed a complaint seeking compensatory and punitive damages and attorneys' fees alleging violations of the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, breach of contract, intentional infliction of emotional distress, and negligence. He appeals from an order granting defendant's motion for summary judgment and dismissing his complaint.

On appeal, plaintiff argues that there were genuine issues of material fact in support of his claim that his termination was attributable to unlawful age discrimination.*fn3 He also contends he presented a viable claim for punitive damages that must be resolved by a jury and that various pre-trial motions regarding discovery were wrongly decided. We disagree and affirm.

In order to address plaintiff's arguments in this appeal, our starting point is our standard of review. The motion judge entered summary judgment and dismissed plaintiff's complaint. The judge was required to review the facts, identify the undisputed facts and view the remaining facts and the inferences drawn from these facts in the light most favorable to plaintiff. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 536 (1995). Having identified the undisputed facts and all favorable inferences in plaintiff's favor, the judge must determine whether the moving party is entitled to judgment as a matter of law. R. 4:46-2(c). We apply the same standard as the motion judge. Spring Creek Holding Co. v. Shinnihon U.S.A. Co., 399 N.J. Super. 158, 180 (App. Div.), certif. denied, 196 N.J. 85 (2008); Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998).

Applying this standard, we discern the following facts.*fn4

UBS hired plaintiff as an Associate Director in the Risk Management division on September 5, 2006. He was four months shy of his fifty-first birthday.

At the beginning of his employment, Massaro reported to Albert Jesupaul, who reported to John Steinthal, Executive Director, Global Head of Secure Connectivity. Steinthal was forty-two years old; Jesupaul was forty-five years old. Massaro asserts he received a written performance review from Jesupaul in November or December 2006. Massaro claims UBS refused to produce that review, but it is undisputed that Massaro received a bonus from UBS in 2006.

On April 2, 2007, Stephen Swann, then forty years old, was hired as the Manager of the Risk Management division. Another candidate, Larry Labella, was also considered for the position. Labella was older than Swann. Massaro did not apply for this position. In June 2007, Jesupaul was transferred to a new division, and Swann became Massaro's supervisor. UBS hired Massaro to execute compliance and risk management functions. He was aware, however, that he was also expected to show initiative and "drive projects" on his own. Specifically, Massaro was assigned to a project called MORCS, an internal self-assessment of UBS's risk. The review occurred twice each year. During the assessments that took place in late 2006 and early 2007, Massaro worked with Jesupaul. During the assessments that occurred later in 2007, Massaro worked with Swann.

Each of Massaro's supervisors voiced similar opinions about his work performance. Jesupaul explained during a deposition that Massaro was able to do the jobs when it [was] defined for him. When you tell him what to do, then he'll be able to do it . . . . That's it.

You don't get any extra effort or you don't get any -- he just do[es] this job he is asked to do . . . . It is not that [Massaro] will come and say I have this idea, you can do this like this or we can do this differently. So he doesn't take initiative to do that . . . .

Steinthal similarly observed that Massaro's job title called for him to "process improvements to the benefit of our Operations teams and in this regard, to be successful he would have needed to demonstrate leadership, management capabilities, vision, creativity, innovation. In this regard he was ineffective. However, ...

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