In Delaney v. Bank of America et al. (decided 9/5/14), the Second Circuit affirmed the district court’s decision granting defendant summary judgment on plaintiff’s age discrimination and breach of contract claims.
Age Discrimination
As to plaintiff’s age discrimination claim under the Age Discrimination in Employment Act of 1967 (ADEA), the court rejected plaintiff’s reliance on another employee’s draft EEOC charge alleging that that employee was terminated because of his age and that colleagues and managers made ageist comments.
That evidence was inadmissible hearsay, which could not be relied upon in opposition to a motion for summary judgment under Federal Rule of Civil Procedure 56(e).
However, even assuming that plaintiff could present that evidence in admissible form at trial by calling the employee as a witness, it “would not call into doubt the nondiscriminatory reason BoA has proffered for Delaney’s termination,” since “[c]omments about another employee’s age, removed from any context suggesting that they influenced decisions regarding Delaney’s own employment, do not suffice to create a genuine issue of fact as to whether age was the but-for cause of Delaney’s termination.”
Breach of Contract
The court also rejected plaintiff’s claim for breach of contract.
Plaintiff based this claim on an alleged oral promise “that his compensation would not suffer” from his transfer to another group. Although under New York law “a binding contract can be formed without the execution of a written agreement,” in this case plaintiff’s “allegation that BoA promised that his compensation would not suffer lacks the definiteness required by New York law.”
Specifically, there was “no evidence of the definite nature and terms of the oral promise Delaney asserts was given.”