2012 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-2-2012

Richard Byrd v. Merrill Lynch

Precedential or Non-Precedential: Non-Precedential

Docket No. 11-3130

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Recommended Citation

"Richard Byrd v. Merrill Lynch" (2012). 2012 Decisions. Paper 333.

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NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 11-3130

_____________

RICHARD A. BYRD,

 Appellant

v.

MERRILL LYNCH, a Wholly Owned Subsidiary of BANK OF AMERICA

______________

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

(D.C. Civil No. 10-cv-00247)

District Judge: Honorable Anne E. Thompson

____________

Submitted Under Third Circuit LAR 34.1(a)

September 13, 2012

____________

Before: SCIRICA, ROTH and BARRY, Circuit Judges

(Opinion Filed: October 2, 2012)

____________

OPINION

____________

BARRY, Circuit Judge

Richard A. Byrd, an African-American male, filed a two-count complaint in the 

United States District Court against his former employer, Merrill Lynch, alleging that he 

was terminated because of his race and sex, in violation of Title VII of the Civil Rights 
2

Act of 1964, 42 U.S.C § 2000e et seq., and the New Jersey Law Against Discrimination 

(“NJLAD”), N.J.S.A. 10:5-1 et seq.

1

 It is fair to say that from the outset, Byrd has 

attempted to squeeze everything he can out of every allegation, every remark and every 

issue that even potentially has anything to do with race or sex. At the end of the day, 

however, as Merrill Lynch correctly observes, “This is a simple case . . . .” Appellee’s 

Br. at 3. 

The District Court considered all that was submitted to it and, in a lengthy and 

extraordinarily thorough opinion, carefully parsed the admissible evidence from the bare 

assertions and speculation; analyzed the weakness in Byrd’s complaint that caused him to 

submit an affidavit disavowing his deposition testimony and proceed under a new, albeit 

also unavailing, theory; and concluded that Byrd’s “attempts to cast doubt on [Merrill 

Lynch’s] articulated legitimate reasons for terminating him are entirely unpersuasive” 

(App. 19) such that he is unable to carry his burden of proof on the issue of pretext, and 

that he had not presented even some evidence of discrimination sufficient for a reasonable 

jury to find in his favor under a mixed motive theory. Accordingly, the District Court 

granted Merrill Lynch’s motion for summary judgment, and Byrd appealed.2 

 

1

 NJLAD claims are analyzed under the same framework as claims brought under Title 

VII. Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1087-88 (3d Cir. 1996). 

2

 The District Court had jurisdiction under 28 U.S.C. § 1331, and we have jurisdiction 

under 28 U.S.C. § 1291. Our review is plenary. Norfolk S. Ry. Co. v. Basell USA Inc., 

512 F.3d 86, 91 (3d Cir. 2008). Viewing the facts in the light most favorable to Byrd, 

summary judgment is appropriate only if the record shows “that there is no genuine 

dispute as to any material fact and [Merrill Lynch] is entitled to judgment as a matter of 

law.” Fed. R. Civ. P. 56(a). 
3

We, too, have considered all that has been submitted to us, and see neither reason 

nor need to issue an Opinion of our own which would do no more than track that which 

the District Court has so carefully crafted. Suffice it to say that, substantially for the 

reasons set forth in the Opinion of the District Court, we will affirm.