Opinion
00-CV-0084E(Sc)
October 27, 2003
MEMORANDUM and ORDER
This decision may be cited in whole or in any part.
Plaintiff commenced this action January 26, 2000 alleging that defendant had violated Title VII of the Civil Rights Act of 1964, 42 U.S.C § 2000e et seq. Defendant moves for summary Judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure ("FRCvP") dismissing plaintiffs claims. for the reasons set forth below, defendant's motion will be granted.
The following facts are undisputed unless otherwise noted, Plaintiff, a Caucasian male who worked for HSBC Bank USA.("HSBC") from 1989 until he was terminated on April 1, 1999, Joined HSBC's Commercial Finance Department in Buffalo, N.Y. in 1993. In 1995, plaintiff was appointed as the Commercial Executive in charge of the Commercial Finance Departments office in Dallas, Texas. Plaintiff was responsible for overseeing and administering the asset-based landing in HSBC's Dallas office. In June 1998, while conducting a routine annual review of a specific account in the Dallas office, plaintiff discovered that several documents that were required as part of the loan approval process were either missing or incomplete, Plaintiff subsequently discovered similar deficiencies with certain other loans in the Dallas office. Plaintiff subsequently reported the deficiencies to his supervisor, William Hannan. It was then agreed between plaintiff and Hannan that the plaintiff would conduct a more thorough self-audit of all of the relevant loans in the Dallas office to ensure that all loan approval conditions were being met and that all required loan documentation was in place, Plaintiff subsequently performed the self-audit (" September 1998 Self-Audit") and then submitted to Hannan a September 9, 1998 Self-Audit Report, which listed the compliance status of each loan's documentation requirements and the loan approval conditions for each borrower in the Dallas office, Grasso Decl., Ex. D. In September 1998, plaintiff was transferred back, to HSBCs Buffalo office and became the Commercial Executive for HSBC's offices in Buffalo and in Chicago ago, Ill.. Lou Maslowe took, over management of the Dallas office. On March 3, 1999 Maslowe sent a memorandum to Mark Kennedy and Gary fowler which reported the status of the compliance with the loan approval conditions for a loan associated with a company known as FFP Marketing, Inc. ("FFP"). The memorandum identified several loan approval conditions that were then still deficient. Upon reviewing Maslowe's memorandum, Martin directed HSBC's Audit Department, known as Group Audit USA ("GAU"), to conduct a follow-up audit of all of the asset-based loans in the Dalias office. On March 5, 1999, Hannan contacted Allaire via telephone and administered an Employee Interim Job Discussion ("IJD") regarding his Job performance in Dallas. The IJD Report, which documented the discussion, indicates that Hannan had a devised Allaire that his performance rating was being downgraded from a very good to a good for 1998 because of problems identified in Dallas. Allaire signed the IJD Report and noted the following in the employee comment section. I accept responsibility for what has occurred under my watch. The actions taken are understood. Grasso Decl., Ex G.
HSBC was formerly known as Marine Midland Bank.
The Commercial Finance Department engages in asset-based financing for companies that are usually in financial distress, such as those that are on the verge of closure or bankruptcy. Because of the financial instability of such companies and the resulting inherent riskiness with such loans, each such loan was accompanied by numerous conditions and covenants intended to ensure that the financial condition of the company did not rapidly deteriorate.
Defendant asserts that such lack of oversight potentially exposed HSBC to tens of millions of dollars in lost loans because the loan collateral was not being properly monitored. Def.'s Statement of Facts ¶ ll; Decl. of James R. Grasso, Esq., Ex. M, pp. 40-44. Plaintiff, on the other hand, disputes both the importance of such missing documents and HSBC's claimed potential financial exposure due to such. See Allaire Dep. — Grasso Decl., Ex. M —, at 56; Pl.'s Statement of Facts ¶ 11.
Allaire's transfer had apparently nothing to do with the documentation problems in the Dallas office as Allaire and Hannan had previously discussed, as early as March of 1998, the possibility of transferring him back to Buffalo.
Kennedy and Foweler worked under Paul Martin, who was the Chief Credit Officer in HSBC's Credit Department in 1999.
Allaire had identified such deficiencies during the June 1998 annual review of the account. In his September 9, 1998 Self-Audit Report, Allaire noted that action had been taken to cure such deficiencies. Although defendant stresses that Allaire did not correct the deficiencies in the FFP loan before transferring back to Buffalo in September 1998, plaintiff asserts that he believed the reporting requirements were up to date at that time based on his understanding that FFP was taking its business elsewhere. See Allaire Dep., at 188-190; Allaire Aff. ¶ 21. However, FFP continued thereafter to do business with HSBC. Allaire also states that FFP's decision to remain with HSBC was communicated only to Maslowe after Allaire had left the Dallas office and that Maslowe had failed to correct the deficiencies with the FFP loan even though he had had more than six months to do so. Allaire Aff. ¶ 17.
Significantly, the IJD report also noted that, at the time of Allaire's 1998 Performance Reveiew, the degree of the credit problems that had surfaced in the Dallas office had not been known. The Report also stated that the seriousness of the credit problems had since come to light and that, evidence has arisen that suggest weaknesses in the credit administration of the Dallas portfolio while Andy was in charge. Grasso Decl., Ex. G. 1 he report further noted that GAU would be conducting a review of Allaire's September 1998 Self-Audit and that further discussions would follow such review, Ibid.
Plaintiff subsequently sent an e-mail to Hannan requesting a meeting concerning the current and short term implications and the longer term career implications. Grasso Decl., Ex. H. Hannan did not respond to such request.
On march 15, 1999 GAU issued a report to Martin summarizing the results of the follow-up audit that he had previously ordered. GAU concluded, Inter alia, that [Allaire's] Self-Audit was not an accurate representation of the condition of the Dallas portfolio. Grasso Decl., Ex. E. However, GAU also noted that, although Allaire's Self-Audit was deficient, it did not discover any evidence of deliberate deception. Ibid. On April 1, 1999 Hannan informed Allaire that he was terminated as a result of the issues concerning his audit of the Dallas office. Defendant claims that the decision to fire Allaire had been made prior to April 1, 1999. Def.'s Statement of Facts ¶ 26.
The plaintiff was replaced by June Hoeflich, a black, female who has been employed by HSBC in various capacities since 1986. In 1998 Hoeflich was approached by Neighborhood National Bank ("NNB") of San Diego, Cal. about possible employment. After two subsequent meetings with. NNB, Hoeflich. accepted employment with NNB sometime in March 1999. Hoeflich submitted a letter of resignation to HSBC on April 1, 1 999. Defendant asserts that Hoeflich. had never, prior to April 1, 1999, informed anyone at HSBC that she was resigning or even possibly thinking about leaving HSBC. Plaintiff disputes that fact and contends that he knew about Hoeflich's impending resignation in March 1999, and that it was common knowledge within HSBC by March, that she had met with Malcolm Burnett to discuss her threatened resignation. P1.s Statement of Facts ¶ 29. On April 5, Hoeflich met individually with David Kotheimer and then Burnett about her decision to resign and about the possibility of getting her to stay with HSBC. On April 6, 1999, HSBC offered Hoeflich the position of Senior Vice President Commercial Executive in charge of the Commercial Finance Uepartment in Buffalo. That same day, Hoeflich accepted the position and withdrew her acceptance of employment with NNB. Plaintiff subsequently commenced the present action alleging that he had been discriminated against because of his race and sex and that defendant had terminated him because it wanted to replace him with Hoeflich merely because she is a black, female.
Hoeflich worked for HSBC from 1971 until 1976, when she left to work for another bank, Hoeflich was recruited back to HSBC in 1986. Beginning in 1988, Hoeflich worked as a commercial loan officer for two years. One was then placed in charge of HSBC's credit training department from 1990-1994 before being promoted in 1995 to manager of HSBC's commercial loan underwriting department. Def.s Statement of Facts ¶ 6.
Hoeflich first informed her supervisor, Jean Otrope, by telephcane of her resignation and then delivered the letter to Martin on April 1, 1999. The letter indicated that the effective date of her resignation was April 15, 1999. Pl.'s Ex. I.
Hoeflich had however made it known to HSBC, as early as January 1998, that she wished to be considered for promotional opportunities. Hoeflich Dep., at 21-22.
Burnett is HSBC's President.
Kotheimer was HSBC's Executive Vice President of Human Resources in 1999.
Upon Allaire's termination on April 1, William Dipple, Commercial Executive of HSBC's Kansas City, Mo. office, assumed responsibility for the Chicago office. Defendant asserts that the decision to separate management of the Buffalo and Chicago offices was made after Allaire's termination but before Hoeflich was appointed as Commercial Executive in the Buffalo office. Def.'s Statement of Facts ¶ 33. Plaintiff however contends that such a decision was necessitated by Hoeflich's lack of asset-based lending experience and offers such as evidence of her lack of qualifications. Pl.'s Statement of Facts ¶ 32-33.
FRCvP56(c) states that summary Judgment shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that " A the moving party is entitled to Judgment as a matter of law. A genuine issue of fact exists if the evidence is such that a reasonable Jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding whether summary Judgment is appropriate, this Court must draw all factual inferences in favor of the non-moving party. A dickces v. S.H. Kress Co., 398 U.S. 144, 157 (1970).
In employment discrimination cases, district courts must be especially chary in handing out summary judgment *** because in such cases the employer's intent is ordinarily at issue. Chertkova F.3d 81, 87 (2d Cir. 1996).
Nevertheless, the non-moving party must rebut the motion for summary Judgment with more than conclusory allegations and general denials. FRCvP 56(e); see also Kerzer v. Kingly Mfg., 156 F.3d 396, 400 (2d Cir. 1998) ("conclusory allegations, conjecture and speculation *** are insufficient to create a genuine issue of fact). Furthermore, summary Judgment is mandated against a 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. Cxelotex Cxorp. v. Catrett, 477 U.S. 317, 322-323 (1986).
Title VII states that [i]t shall be an unlawful employment practice for an employer * * * to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's race, color, religion, sex, or national origin. 42 U.S.C. § 2000e-2(a)(1).(1) In the absence of direct evidence of discrimination, Title Vll claims are analyzed pursuant to the burden-shifting framework as espoused in McDonnell. Douglas Corp. v. Green, 411 U.S. 792 (1973) and its offspring. In bringing a case under Title Vll, plaintiff bears the initial burden of making out a prima facie case of discrimination. In order to establish a prima facie case, plaintiff must show (I) that he is a member of a protected class, (2) that he was qualified for his position, (3) that he suffered an adverse employment action and (4) preference for a person not of the plaintiffs protected class. James v. N.Y. Racing Ass'n, 233 F.3d 149, 153 (2d Cir. 2000) (citing McDonnell Douglas, at 802). The fourth element may toe shown toy demonstrating either that the adverse action occurred under circumstances giving rise to an inference of unlawful discrimination, or that the position was ultimately filled toy an individual who is not a member of the protected class. Farias v. Instructional Sys., Inc., 259 F.3d 91, 98 (2d Cir. 2001). If a plaintiff succeeds in establishing a prima facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate a legitimate, nondiscriminatory reason for the adverse employment action. Ibid. Once the defendant has articulated a legitimate, nondiscriminatory reason for the adverse employment action, the presumption of discrimination drops out of the analysis and the defendant will be entitled to summary Judgment *** unless the plaintiff can point to evidence that reasonably supports a finding of prohibited discrimination. Ibid, (citing James, at 154).
The plaintiff's burden of proof in establishing a prima facie case of discrimination is minimal. St. Mary's Honor 509 U.S. 502, 506 (1993).
Defendant initially contends that, as a white male, plaintiff is not a member of a protected class for purposes of a Title VII claim. Consequently, defendant argues that plaintiff must satisfy a heightened burden in establishing a prima facie case of reverse discrimination — to wit, he must show background circumstances that support an inference of race or sex discrimination in addition to the four elements discussed above. See Def.'s Mem. of Law, at 4.
Courts in the Second Circuit it have disagreed as to whether a plaintiff has a heightened burden in establishing a prima facie case of reverse discrimination. Compare, e.g, Olenick v. New York lei./A Nynex Co., 881 F. Supp. 113, 114 (S.D.N.Y. 1995) (holding that a non-minority plaintiff must show background circumstances that supports the suspicion that the defendant is that unusual employer who discriminates against the majority) and Umansky v. Masterpiece Int'l Ltd., 1998 WL 433779, at *3 (S.D.N.Y. 1998) (applying Olenick) with DiLegge v. Gleason, 131 F. Supp.2d 520, 523 (S.D.N.Y. 2001) (rejecting Olenick) and Pesok v. Hebrew Union College — Jewish Inst. of Religion, 235 F. Supp.2d 281, 285-286 (S.D.N.Y. 2002) (same). Although the Second Circuit Court of Appeals has yet to specifically resolve the issue, it has declined to apply such a heightened burden in a recent case involving a white plaintiff's employment discrimination claim. See McGuinness v. Lincoin Hall, 263 F.3d 49, 53 (2d Cir. 2001) (finding that plaintiff, a white woman, had established a prima facie case of discrimination based on race and gender without requiring her to satisfy a heightened burden of proof). In addition, the Supreme Court has held that Title VII prohibits racial discrimination against whites on the same terms as racial discrimination against non-whites. McDonald, v. Santa FeTrail Transp. Co., 427 U.S. 273, 279 (1976). Based on the holdings in McGuiness, McDonald and those cases in which the courts have rejected applying a heightened burden of proof for white plaintiffs, this Court declines defendant's invitation to apply a heightened standard of proof for plaintiff to establish a prima facie case of reverse employment discrimination. See DiLegge, at 523 (declining to apply a heightened standard of proof to white plaintiff's employment discrimination claim based upon his race absent direction from [the Second Circuit Court of Appeals] or the Supreme Court to the contrary"). Thus, having found that plaintiff has satisfied the first element of a prima facie case of employment discrimination, the Court will proceed to the other three applicable elements.
Plaintiff has satisfied his minimal burden of proof with regard to the second, third and fourth elements. The second element has been satisfied because, prior to his termination, plaintiff was never disciplined for poor work performance at HSBC other than his March 1999 IJD by which his performance rating was downgraded — and he never received a Job performance rating below good. Plaintiff has established the third element inasmuch as it is undisputed that he was terminated by the defendant. He has also satisfied the fourth element because he was ultimately replaced by Hoeflich, a black, female, and therefore not a member of plaintiffs relevant protected classes. See Zimmermann v. Assocs. First Capital Corp., 251 F.3d 376, 380 (2d Cir. 2001) (holding that the fact that a plaintiff was replaced by someone outside the relevant protected class was sufficient to find, the required inference of discrimination at the primafacie stage of a Title VII analysis).
Indeed, Allaire, who routinely received ratings of outstanding and very good, had his rating downgraded to good only because of the purported problems associated with the loans in the Dallas office. Although defendant ultimately contends that plaintiff was terminated because of the problems associated with the loans in the Dallas office under his mismanagement, it has not argued that plaintiff cannot meet his burden with regard to the second prong of his prima facie case.
As plaintiff has presented a prima facie case of discrimination, the burden shifts to defendant to articulate a legitimate, nondiscriminatory reason for terminating him. HSBC states that Allaire was terminated because it had determined that his 1998 Self Audit had presented an inaccurate description of the compliance status with regard to certain loan approval and monitoring conditions of the Dallas portfolio at the time that it was completed. Def.'s Statement of Facts ¶ 25. Furthermore, defendant asserts that the decision to terminate plaintiff was made prior to April 1, 1999 and that such decision had nothing to do with replacing him with Hoeflich inasmuch as it was not aware of Hoeflich's intention to leave HSBC until after the decision to terminate plaintiff had been made. Def.'s Mem. of Law, at 9. Thus, defendant has met its burden of production and will be entitled to summary Judgment unless plaintiff can identify evidence that reasonably supports a finding of discrimination. To do so, plaintiff must prove by a preponderance of the evidence that the defendant's articulated reason for his termination is both false and a pretext for discrimination. Weinstock v. Columbia Univ., 224 F.3d 33, 42 (2d Cir. 2000).
In attempting to make such a showing, plaintiff essentially contends that (1) defendant has overstated the severity of the credit problems that occurred while he was in the Dallas office, (2) Hoeflich was not qualified to replace him and (3) HSBC promoted Hoeflich in order to help fulfill its goals with regard to its affirmative action policy. See P1.'s Mem. of Law, at 19-24. Plaintiff has failed to raise any genuine issues of material fact whether defendant's legitimate, nondiscriminatory reason for his discharge was a pretext for discrimination.
To begin, plaintiff has failed to raise any genuine issue of material fact that defendant's articulated reason for his termination — to wit, because of the deficiencies associated with the loans under his control in the Dallas office and because his subsequent Self-Audit presented inaccurate representations of such deficiencies — is false. Although plaintiff has strenuously argued that defendant has overstated the seriousness of the deficiencies associated with the loans in the Dallas office, he has not presented any evidence in support of such other than his own conclusory allegations. In fact, plaintiff accepted responsibility for what occurred in the Dallas office and acknowledged that the problems associated therewith were more serious than had been previously contemplated. In addition, plaintiff took, no issue with the fact that GAU — HSBC's Audit Department — would be conducting a review of his September 1998 Self-Audit in order to report on the seriousness of the newly discovered credit problems. finally, the IJD Report noted that at further discussions would follow the results of the GAU Review. GAU subsequently concluded that at Allaire's Self-Audit did not present an accurate representation of the conditions of the Dallas portfolio. Although arguing that the GAU Review was unfair, plaintiff admitted that the GAU Review was accurate and that [t]he information *** in [such] audit is true. Allaire Dep., at 88. Plaintiffs contention that such problems did not warrant his termination are unsupported by the record. Thus, the evidence before the Court supports defendant's stated reason for plaintiff's termination and plaintiff has failed to present any credible evidence to support a reasonable inference to the contrary.
Such is evidenced by the March 5, 1999 IJD report which was signed by plaintiff and wherein Hannan had noted that at the time of Allaire's 1998 Performance Rveview the degree of the credit problems in the Dallas portfolio had not been known. In addition, the Report stated that [s]ince Allaire's 1998 Performance Review, the seriousness of [the] credit problems *** has increased and that evidence has arisen that suggest weaknesses in the credit administration of the Dallas portfolio while [Allaire] was in charge. Grasso Decl., Ex. G.
Furthermore, plaintiff has failed to rebut defendant's evidence that the problems that occurred in the Dallas office under Allaire's management potentially exposed HSBC to tens of millions of dollars in losses. See Def.'s Statement of Facts ¶ 11; Martin Dep., at 59-60. Plaintiffs only evidence in opposition to that assertion is his conclusory statement to the contrary without any citation to the record. See. Pl.'s Statement of Facts ¶ 11 (stating that he vigorously denies that the problems in the Dallas office exposed HSBC to such financial losses).
Plaintiff's attempt to compare himself to another white male to show disparate treatment is also misplaced. Plaintiff contends that Peter Zimmer, an executive at HSBC who had experienced audit problems similar to himself, was merely demoted while he was terminated for those same problems. However, plaintiff has not presented sufficient evidence to show that Zimmer was similarly situated to him in all material aspects. See Shumway v. United Parcel Serv., Inc., 1 18 T.3d 60, 64 (holding that plaintiff attempting to show disparate treatment must compare herself to individuals similarly situated in all material respects "). In other words, plaintiff has not stated the nature of Zimmer's purported audit problems or that such problems were as serious as the problems associated with the loans in the Dallas office or his subsequent Self-Audit. Moreover, to show disparate treatment based on his race and sex, plaintiff would need to show that he was treated differently than an individual who is not a member of his protected class — i.e., a similarly situated black female. See McGuinness, at 53-54 (finding that white female had shown evidence of disparate treatment by offering evidence that she was treated differently than a similarly situated black male).
Nonetheless, even if plaintiff had presented evidence to show genuine issues of fact regarding the veracity of defendant's legitimate, nonciiscriminatory reason for his termination, he has not shown that such stated reason was actually a pretext for discrimination. Plaintiff's claim hinges on his ability to show that he was terminated solely because HSBC wanted to replace him with Hoeflich. in order to pursue compliance with its affirmative action policy. However, Allaire has failed to present any admissible evidence to show that defendant was aware of Hoeflich's intention to leave HSBC before it had decided to terminate Allaire. His evidence regarding such awareness coxnsists solely of his own testinnony. In his affidavit, he states that he became aware that Hoeflich. was actively seeking employment with a bank, in california and that Hoeflich. had met with Burnett to discuss such a possibility. Allaire Aff. ¶ 27. He further stated that this was common knowledge at the bank. During his deposition, plaintiff was asked how he became aware in March 1999 that Hoeflich. had threatened to leave HSBC, to which plaintiff responded. Because I've heard it from too many people not to know about it. It was common knowledge that June Hoeflich, in mid-March, met with Malcolm Burnett. Allaire Dep., at 130. Plaintiff's evidence is insufficient to raise a genuine issue of fact whether defendant knew of Hoeflich's threatened departure before it had terminated him. First, plaintiffs affidavit and deposition testimony does not constitute competent evidence under FRCvP 56. FRCvP 56(e) provides that an affidavit submitted in opposition to summary judgment shall be made on personal knowledge, shall set forth. such facts as would be admissible in evidence, and shall show affirmatively that the affiant is competent to testify to the matters stated therein. "See H. Sand Co. v. Airtemp Corp., 934 F.2d 450, 454-55 (2a Cir. 1991) (holding that a hearsay assertion that would not toe admissible if testified to at trial is not competent material for a Rule 56 affidavit);. Durlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 923 (2d Cir. 1985) (holding that a party may not rely on hearsay evidence in opposition to a motion for summary Judgment). Allaire's statements that he learned of an alleged meeting that had taken place sometime in March of 1999 between Hoeflich and Burnett because he had heard it from too many people not to know it is hearsay that would not be admissible at trial. In addition, his testimony that such a meeting was common knowledge at the bank is inadmissible and not sufficient under FRC v. P 56 inasmuch as it shows that the alleged March 1999 meeting was not based on his personal knowledge. See Shumway v. United Parcel Serv., Inc., 118 F.3d 60, 64 (2d Cir. 1997) (holding that plaintiff's evidence of disparate treatment based upon common knowledge and no personal knowledge was insufficient to establish a prima facie case of discrimination). In any event, despite plaintiff's insistence that it was common knowledge at the bank that Hoeflich. had met with Burnett in March, he has failed to produce a single witness or employee of the bank that could testify to that fact or even corroborate his assertion. Thus, plaintiff has failed to adduce any evidence sufficient to create a genuine issue of fact regarding whether defendant knew of Hoeflich's intention to leave HSBC prior to plaintiff's termination. Such a failure is fatal to plaintiff's claim that defendant terminated him in order to replace him with Hoeflich because it is undisputed that the decision to terminate him occurred before April 1, 1999 No trier of fact could reasonably conclude that the decision to terminate plaintiff was motivated by defendant's desire to replace him with Hoeflich in the absence of any evidence tending to show that such a decision was made after it had learned of Hoeflich's resignation. In addition, such lack, of evidence discredits plaintiff's argument that his termination had something to do with HSBC's desire to pursue its goals with regard to the placement of minorities into management positions pursuant to its affirmative action policy. Evidence consisting of the mere fact that HSBC had an affirmative action policy — or that it may have been behind in its desired goals pursaunt to that policy — does little to create issues of triable fact in support of plaintiff's claim. It would require too much of an inferential leap for a Jury to conclude that such a reason was the basis for plaintiff's termination especially in the absence of any evidence that HSBC knew of Hoeflich's intention to leave the bank before HSBC had decided to terminate him. To conclude otherwise requires too much conjecture and surmise and is insufficient to defeat a motion for summary Judgment. See Kerzer, at 400. Plaintiff's evidence amounts to nothing more than his own conclusory allegations and he has failed to raise any genuine issues of material facts with regard to his claim that he was terminated merely because. HSBC wanted to replace him with a black, female. Thus, despite drawing all factual inferences in his favor, the Court is unable to conclude that plaintiff has presented sufficient evidence that reasonably supports a finding of prohibited discrimination.
Furthermore, it is irrelevant to plaintiff's claim whether other candidates were more qualified than Hoeflich to assume Allaire's responsibilities in the Buffalo office. Plaintiff contends, in support of his claim, that Hoeflich was promoted despite the fact that other HSBC employees were more qualified than her to assume his responsibilities in the Buffalo office. The evidence shows that the decision to promote Hoeflich did not occur until after plaintiff was terminated. Therefore, whatever motivated HSBC's decision to promote Hoeflich at that time has no bearing on the reason for its initial decision to terminate plaintiff.
Accordingly, it is hereby ORDERED that defendant's motion for summary judgment is granted and that the Clerk of this Court shall close this case.