SANDERS v. COOPERATIEVE RABOBANK (2024)

Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered December 9, 2022, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing plaintiff's claim for age discrimination under the New York City Human Rights Law (HRL), unanimously affirmed, without costs.

Plaintiff was employed by defendant as a compliance officer whose primary responsibility was to support the bank's efforts to obtain a swap dealer registration with the Commodity Futures Trading Commission.  Defendant terminated plaintiff's employment after two years, when he was 57 years old.

Defendant submitted evidence of legitimate, nondiscriminatory reasons for plaintiff's termination—namely, that plaintiff's role was eliminated because defendant believed its swap dealer registration was imminent and as part of a cost-cutting restructuring of defendant's compliance department based on the bank's anticipated future needs (see Smith v. Federal Defenders of N.Y., Inc., 161 A.D.3d 506, 507, 76 N.Y.S.3d 154 [1st Dept. 2018]).  Conversely, plaintiff fails to demonstrate the existence of a genuine dispute of material fact as to whether defendant's reasons were pretextual or whether discrimination was a motivating factor in defendant's decision (see Cadet–Legros v. New York Univ. Hosp. Ctr., 135 A.D.3d 196, 202, 21 N.Y.S.3d 221 [1st Dept. 2015]);  Hamburg v. New York Univ. Sch. of Medicine, 155 A.D.3d 66, 73, 62 N.Y.S.3d 26 [1st Dept. 2017];  Bennett v. Health Mgt. Sys., Inc., 92 A.D.3d 29, 35–40, 936 N.Y.S.2d 112 [1st Dept. 2011], lv denied 18 N.Y.3d 811, 2012 WL 1432090 [2012].

Plaintiff also fails to demonstrate a genuine issue of material fact as to whether defendant's reasons were “false, misleading, or incomplete” (Bennett, 92 A.D.3d at 43, 936 N.Y.S.2d 112).  Plaintiff admitted that “all of his swap dealer compliance experience was ‘pre-registration’ and he had no compliance experience in a [business-as-usual] setting for a swap dealer,” to which defendant planned to transition following plaintiff's departure.  The fact that defendant did not secure its swap dealer registration until approximately one year after plaintiff's departure does not create an issue of fact as to defendant's “good faith belief” that the registration was imminent “and that personnel action was required” (Smith, 161 A.D.3d at 507, 76 N.Y.S.3d 154).  The undisputed evidence also showed that plaintiff's termination achieved a cost savings for defendant of approximately $50,000.  Plaintiff's efforts to manufacture a genuine issue as to defendant's reasons by misrepresenting record testimony and documentary evidence are unavailing.

Although defendant hired a younger markets compliance officer around the time of plaintiff's termination, that person had a different title, more generalist focus, and lower pay grade than plaintiff.  Further, that person was hired based on his experience with Volcker Rule compliance, of which plaintiff admitted he had none.  The elimination of plaintiff's role and hiring of other employees with different responsibilities and skills does not raise an inference of discrimination (see Bailey v. New York Westchester Sq. Med. Ctr., 38 A.D.3d 119, 124, 829 N.Y.S.2d 30 [1st Dept. 2007]).

Plaintiff also fails to show a genuine issue of fact as to whether age was a motivating factor in his termination.  Defendant's termination or reassignment of three other senior compliance officers does not demonstrate a pattern of age discrimination, as those changes happened during a restructuring unrelated to plaintiff's termination, which plaintiff concedes resulted in layoffs predominantly of employees under 40 (see Hamburg, 155 A.D.3d at 77–78, 62 N.Y.S.3d 26;  Melman v. Montefiore Med. Ctr., 98 A.D.3d 107, 123, 946 N.Y.S.2d 27 [1st Dept. 2012]).  Plaintiff's positive performance evaluations do not create an issue of fact, as defendant did not assert that plaintiff's performance played any role in his termination.  Summary judgment was therefore properly granted since “there is no evidentiary route that could allow a jury to believe that discrimination played a role in the challenged action” (Spinello v. Depository Trust & Clearing Corp., 147 A.D.3d 572, 573, 48 N.Y.S.3d 43 [1st Dept. 2017]).