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SHERMAN v. PRUDENTIAL-BACHE SECS. INC.

November 28, 1989

FREDERIC SHERMAN
v.
PRUDENTIAL-BACHE SECURITIES INC., DAVID REPPERT, HENRY THOMAS, and RICHARD HEVNER



The opinion of the court was delivered by: HUYETT, 3RD

 DANIEL H. HUYETT, 3RD, UNITED STATES DISTRICT JUDGE.

 Defendants, Prudential-Bache Securities, David Reppert, Henry Thomas, and Richard Hevner, move for summary judgment on all of plaintiff's claims. Plaintiff Frederic Sherman brought this action against his former employer, Prudential-Bache, and three individual brokers employed by Prudential-Bache claiming (1) racial discrimination in violation of 42 U.S.C. § 1981; (2) employment discrimination in violation of 42 U.S.C. § 2000e-2; (3) age discrimination in violation of 29 U.S.C. § 623; (4) breach of contract; (5) tortious interference with an employment relationship; (6) tortious interference with business relationships; (7) defamation; and (8) intentional infliction of emotional distress.

 Summary judgment is appropriate if there exists no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. Small v. Seldows Stationery, 617 F.2d 992, 994 (3d Cir. 1980). The court does not resolve questions of disputed fact, but simply decides whether there is a genuine issue of fact which must be resolved at trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 91 L. Ed. 2d 202 (1986). The facts must be viewed in the light most favorable to the opposing party, and reasonable doubt as to the existence of a genuine issue of material fact is to be resolved against the moving party.

 I.

 Viewing the facts in the light most favorable to the plaintiff, the facts giving rise to this action are as follows. In June 1984, plaintiff Frederic Sherman, a Jew, was hired as a stockbroker with Prudential-Bach in its Philadelphia office. At that time, plaintiff was living in Reading, Pennsylvania. Initially, plaintiff considered moving his residence to Philadelphia. For personal and financial reasons, however, plaintiff decided to remain living in Reading and commute to Philadelphia.

 Prudential-Bache was pleased with plaintiff's radio spots, which it considered a valuable form of marketing. In 1987, when plaintiff signed a contract as a financial advisor with CBS-TV, Prudential-Bache's regional manager agreed to have Prudential-Bache pay plaintiff's required union dues.

 In Philadelphia and Reading, plaintiff was well known and had a good reputation as a business analyst and stockbroker. In Reading, plaintiff was known for his charitable work both within and without the Jewish community.

 In 1985, plaintiff began experiencing back problems associated with his travel to and from Philadelphia. At that time, he sought a transfer to Prudential-Bache's office in Reading. This transfer was approved by the regional manager, the Philadelphia branch manager, and the Reading branch manager. In November 1985, Prudential-Bache began to transfer his accounts to Reading. The transfer, however, never went through as planned because a petition was circulated among the brokers in the Reading office in opposition to plaintiff's intended transfer. The petition was signed by everyone in the Reading office except Ruth Kins, a Jewish individual. Defendant Reppert, a broker in the Reading office, told Sherman that "we don't need you people, your type of people, in the Reading Office." Sherman Deposition at 71. Subsequently, plaintiff was told by the manager of the Reading office that he could not transfer to Reading.

 Plaintiff continued to work in Prudential-Bache's Philadelphia office. In the winter of 1986 and the spring of 1987, plaintiff was hospitalized in Philadelphia because he was suffering from kidney stones. In addition, plaintiff was having increasing problems with his prostate. Because of his physical problems, plaintiff had to stop frequently on his trips to and from Philadelphia.

 In September 1987, plaintiff made another request to transfer to the Reading office. Plaintiff informed the regional manager that he was requesting a transfer for health reasons and because his mother was terminally ill in a nursing home in Reading. The regional manager told plaintiff to speak to the Reading branch manager about the transfer. In late September 1987, plaintiff met with the Reading manager who agreed to permit the transfer. The regional manager then confirmed plaintiff's transfer to Reading.

 In late October 1987, plaintiff met with the Reading branch manager to finalize his transfer to Reading. Shortly thereafter, the Reading manager was approached by several brokers in the Reading office, including defendants Reppert and Thomas. These brokers informed their manager that they would resign from Prudential-Bache if plaintiff was permitted to transfer to Reading. As a result of these threats of resignation, the Reading manager informed plaintiff that there was a problem with his intended transfer. The Reading manager then informed the regional manager about the brokers' opposition to plaintiff's transfer. Several days later the regional manager informed plaintiff that he would not be permitted to transfer to Reading because three brokers, who together produced 50% of the business of the Reading office, objected to his transfer and had threatened to resign.

 In 1987, during the time that plaintiff was seeking a transfer to Reading, there were openings at the Prudential-Bache Reading office which Prudential-Bache was attempting to fill. In late August or early September 1987, Eleanor Collins, a non-Jew, was permitted by the regional manager to transfer from Prudential-Bache's Harrisburg office to the Reading office. By November or December 1987, the Reading branch was running newspaper advertisements to recruit stockbrokers. As a result of these newspaper advertisements, the Reading branch of Prudential-Bache hired Marty Radvanyi, a non-Jew, in March 1988.

 After it was clear that he would not be permitted to transfer to the Reading office, plaintiff sought approval to transfer to either the Bryn Mawr or Bala Cynwyd office. Transfer to either office would have cut down on plaintiff's commuting time. Both transfer requests were refused, however, even though other brokers had been permitted to transfer from Philadelphia to other offices.

 In November and December 1987, plaintiff learned several things concerning his job which greatly concerned him. The interim branch manager of the Philadelphia office, Robert Hayden, informed plaintiff that Prudential-Bache would discontinue by the end of December 1987 many of the perquisites which he had earned because he was a top producer. Hayden told plaintiff that he would no longer be receiving his $ 200 per month housing allowance or his additional gross commissions which it paid to cover a part of the salary of his assistant. In addition, Hayden threatened to review plaintiff's allocation of secretarial time. Hayden told plaintiff repeatedly that it would be better if he found employment elsewhere and that he was too old to rebuild his client base after the "crash" of October 19, 1987. Plaintiff was sixty-three (63) years old at that time.

 As a result of this disturbing information, plaintiff became convinced that management had a very negative attitude towards him and was trying to force him out of Prudential-Bache. Consequently, to protect his own interests, plaintiff began looking for employment with another brokage firm. At the time when he began looking, plaintiff had not conclusively decided to leave Prudential-Bache but was merely exploring his options.

 On January 4, 1988, plaintiff resigned. On the following day, January 5, 1988, plaintiff went to work for Butcher and Singer, Inc., a brokerage firm in Reading.

 II.

 A. FEDERAL CLAIMS

 1. Claim of Racial Discrimination

 Plaintiff claims that the defendants did not permit him to transfer to Reading because he was Jewish, in violation of 42 U.S.C. § 1981. In order for plaintiff to succeed on this claim, he must show that the defendants intentionally discriminated against him because he was Jewish. See General Building Contractors Association v. Pennsylvania, 458 U.S. 375, 391, 102 S. Ct. 3141, 73 L. Ed. 2d 835 (1982). Defendants contend that plaintiff has established no facts from which a reasonable jury could conclude that defendants discriminated against the plaintiff because he was Jewish.

 In 1985, plaintiff's requested transfer to Reading had been approved, and Prudential-Bache had even begun transferring his accounts to the Reading office. Because of the petition in opposition to plaintiff's transfer, however, the manager of the Reading office told him that he could not transfer to Reading. Defendant Reppert, the broker in Reading who circulated the petition, told Sherman that the Reading office did not need his kind of people. See Sherman Deposition at 71. Although plaintiff never asked Reppert what he meant by "your kind of people," plaintiff said he had heard the expression before and recognized it has an anti-Semitic remark. See Sherman Deposition at 72.

 Therefore, a jury could find that plaintiff's intended transfer in 1985 did not take place because (1) the majority of brokers in the Reading office did not want him since he was Jewish and (2) the manager of the Reading office permitted the prejudice of those brokers to control his decision whether to permit the transfer.

 In September 1987, plaintiff made another request to transfer to Reading based upon personal health reasons and the fact that his mother was terminally ill in a nursing home in Reading. See Exhibit Y at para. 11 of Appendix to Plaintiff's Memorandum Contra Defendants' Motion for Summary Judgment. Just like the intended transfer in 1985, plaintiff received permission to transfer from both the regional manager and the Reading manager. Just as in 1985, however, the transfer did not take place because of broker opposition. Three brokers, who together produced 50% of the business of the Reading office, threatened to resign if plaintiff was transferred to Reading. One of these brokers was Reppert, the same broker who in 1985 circulated the petition and made the allegedly anti-Semitic remark.

 Therefore, if a jury found that plaintiff's transfer in 1985 was denied because he was Jewish, a jury could also find that his transfer in 1987 was denied because he was Jewish. This is especially true since it appears that the same individual led the opposition movement on both occasions and that individual made remarks to Sherman which were allegedly anti-Semitic in nature.

 Therefore, there are genuine issues of material fact as to whether plaintiff's transfers were denied because his employer acquiesced to its employees' discriminatory intent in ...


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