Richard A. Byrd v. Merrill Lynch, a Wholly Owned Subsidiary of BANK OF AMERICA APPEAL FROM THE UNITED…

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 11-3130
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RICHARD A. BYRD,
Appellant
v.
MERRILL LYNCH, a Wholly Owned Subsidiary of BANK OF AMERICA
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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
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Submitted Under Third Circuit LAR 34.1(a)
September 13, 2012
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Before: SCIRICA, ROTH and BARRY, Circuit Judges
(Opinion Filed: October 2, 2012)
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OPINION
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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

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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).

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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.

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