Alba v. Merrill Lynch & Co.

UNPUBLISHED

UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 05-1514

MICHAEL S. ALBA,

Plaintiff - Appellant,

versus

MERRILL LYNCH & CO; MERRILL LYNCH, PIERCE,
FENNER & SMITH, INCORPORATED,

Defendants - Appellees.

Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Claude M. Hilton, District
Judge. (CA-04-647-1)

Argued: February 1, 2006 Decided: May 26, 2006

Before MICHAEL, SHEDD, and DUNCAN, Circuit Judges.

Affirmed in part and vacated and remanded in part by unpublished
opinion. Judge Shedd wrote the opinion, in which Judge Michael and
Judge Duncan joined.

ARGUED: Merril Jay Hirsh, ROSS, DIXON & BELL, L.L.P., Washington,
D.C., for Appellant. Stephen Edward Brown, MAYNARD, COOPER & GALE,
P.C., Birmingham, Alabama, for Appellees. ON BRIEF: Elizabeth
Sarah Gere, Rebecca Woods, Prashant K. Khetan, ROSS, DIXON & BELL,
L.L.P., Washington, D.C., for Appellant. Carole G. Miller, Stuart
D. Roberts, MAYNARD, COOPER & GALE, P.C., Birmingham, Alabama, for
Appellees.

Unpublished opinions are not binding precedent in this circuit.
See Local Rule 36(c).
SHEDD, Circuit Judge:

Michael S. Alba sued his former employer, Merrill Lynch & Co.,

Inc. and Merrill Lynch, Pierce, Fenner & Smith, Inc. (collectively

referred to as “ML”),1 alleging a violation of the Age

Discrimination in Employment Act (the “ADEA”) and breaches of

various agreements. The district court granted summary judgment in

favor of ML, and Alba appealed. We affirm in part and vacate and

remand in part.

I.

We review de novo the grant of summary judgment. JKC Holding

Co. v. Washington Sports Ventures, Inc., 264 F.3d 459, 465 (4th

Cir. 2001). In conducting our review, we view the evidence in the

light most favorable to Alba. See Williams v. Staples, Inc., 372

F.3d 662, 667 (4th Cir. 2004).

Alba, a retired Air Force colonel, joined ML as a financial

advisor in its Northern Virginia region in 1988. At that time, he

signed a document acknowledging that all records (including the

names and addresses of its clients) are the property of ML and

would remain the property of ML even after Alba’s employment at ML

ended.

1
It is not clear which entity actually employed Alba. For
purposes of our review, we assume that Alba was employed by both.

2
 In 1993, Alba entered into an agreement with another ML

financial advisor, Herbert Vogel, who was planning to retire in

1996. According to the Vogel agreement, Vogel and Alba pooled all

of their client accounts under Vogel’s ML financial advisor number,

and the two agreed to share compensation from their joint clients.

The agreement also provided that Vogel would “relinquish title to

all accounts to” Alba in 1996 when Vogel retired, and Alba would

thereafter “be the sole financial consultant responsible for all

accounts.” J.A. 267.

In the first year of this agreement, Vogel received 70% of the

compensation from the joint accounts, and Alba received 30%. These

percentages incrementally changed to Alba’s benefit in the

following years, so that by 1996, the last year of the agreement,

Alba received 80% of the compensation and Vogel received 20%. This

type of pooling agreement is referred to as selling a financial

advisor’s “book of business” to another financial advisor.

In 1992, before the Vogel agreement, Alba earned approximately

$80,000. Although Alba potentially risked reducing his income by

entering into the Vogel agreement, Alba’s income actually increased

to $107,000 in 1993, the first year of the agreement. In 1996, the

last year of the Vogel agreement, Alba’s annual compensation grew

to approximately $338,000. After the agreement ended, Alba’s

compensation continued to grow at a rapid pace, and in 2000 Alba

earned approximately $850,000. Alba’s book of business eventually

3
grew to approximately 1,200 clients, making him one of the largest

producers in ML’s Northern Virginia region.

In 2000, ML opened a new office in Reston, Virginia. ML asked

Alba to transfer to the Reston office so it could have a well-

established top producer there. ML offered Alba the first choice

of office space, and Alba agreed to the transfer.

When Alba moved to the new Reston office, he started a new

team, the Alba Group, with his son Chris, another ML financial

advisor. Although Alba had no plans to retire, his agreement with

Chris was somewhat similar to the Vogel agreement in that he and

Chris pooled their client accounts and shared compensation on an

80%/20% basis. In their agreement, the Albas acknowledged that ML

“at all times retains the right to assign customer accounts to the

Financial Advisors which it believes will best service those

customers.” J.A. 259. They also agreed not to solicit any account

or customer within a specified area upon termination of their

employment. The agreement also provided that members of the team

are “employees at will of [ML] who can quit [ML] or whom [ML] can

discharge at any time with or without cause.” J.A. 260.

The stock market performed poorly in 2000 through 2002. By

the spring of 2001, a few of Alba’s clients complained that Alba

was mishandling their accounts. In April 2001, Andrew Greene,

Alba’s immediate supervisor, reviewed Alba’s accounts and

determined that Alba had an overly aggressive, non-diversified

4
investment strategy for many of his older clients. Greene also

thought that there was too much margin trading in Alba’s client

accounts. Greene directed Alba to utilize a more conservative

investment strategy and to reduce the level of margin trading in

his client accounts. Other superiors also met with Alba and

advised him to diversify his client accounts and reduce margin

holdings to 5% of account balances.

By May 2002, the number of clients who had made complaints

against Alba had grown to more than ten. Most of these clients

were nearing or over 60 years old. The ML compliance officer

reviewed Alba’s client records and determined that Alba had not

reduced margin in his client accounts. Fifty-four of Alba’s

clients -- out of approximately 1,200 -- had margin balances of

over 50%, and twenty-three of these accounts were held by clients

over 60 years old.

By the end of May 2002, Peter DiCenso, the director of ML’s

Northern Virginia region, decided to fire Alba based on his poor

performance. DiCenso believed, however, that Alba might be able to

receive approximately $400,000 from two separate benefit plans

maintained by ML -- the Financial Advisor Capital Accumulation

Award Plan (the “FACAAP”) and the WealthBuilder Account Plan

(collectively “the Plans”) -- if Alba agreed to retire. DiCenso

directed Greene to urge Alba to retire.

5
 On June 11, Greene had lunch with Alba and pressed him about

a recent complaint that had been made against Alba. Greene said

that it was time for Alba to retire so that he and his wife could

enjoy their “golden years.” J.A. 746. Greene also asked Alba,

who was then 62 years old, “[h]ow old are you anyway.” Id. Greene

assured Alba that he would be able to get all of his FACAAP and

WealthBuilder benefits if Alba agreed to retire, but Greene said

that Alba would not be allowed to sell his book of business.

Despite being pressured by Greene, Alba refused to retire.

Soon thereafter, DiCenso confronted Alba and his son Chris

with purported evidence of the Alba Group’s mishandling of several

of its client accounts. Some of the client accounts listed by

DiCenso, however, did not belong to the Alba Group. DiCenso

proposed to Alba that he retire so he could possibly get his FACAAP

and WealthBuilder benefits. To stress how dire Alba’s situation

was, DiCenso told Alba that he was in an “irreversible” position

and that the highest level officials at ML would probably terminate

Alba. J.A. 901. DiCenso also told Chris that he should resign and

that, if Chris refused to resign, he would be fired for cause and

ML would make it difficult for Chris to get a financial advisor

position with another firm. Soon after this meeting, Chris

resigned, and ML fired another young trainee in the Alba Group.

Alba lost approximately $120,000 he would have earned for mentoring

6
the trainee had ML allowed the trainee to complete the training

program.

A few days later, on June 21, ML disconnected Alba’s access to

ML’s computer system. DiCenso telephoned Alba three times that

day, inquiring whether Alba had decided to retire. In the first

conversation, Alba said that he needed more time to decide.

DiCenso told Alba that he could have until 6:00 p.m. that day.

DiCenso also warned Alba that he would lose his $400,000 “football”

of benefits under the FACAAP and WealthBuilder Plan if he refused

to retire. DiCenso made the second call shortly before 6:00 p.m.

Alba insisted that he did not want to leave ML. DiCenso replied

that Alba had just lost $400,000 by refusing to retire. Less than

a minute later, however, DiCenso called back and told Alba to

forget about their last conversation and that “we’ll work something

out next week.” J.A. 750. This last phone conversation lasted

about one minute.

Instead of waiting to discuss the matter further the following

week, Alba sent a letter of resignation to DiCenso the next day,

stating: “It is obvious that ML has intended to force my

resignation. The various actions taken against me, those who work

for me and my family have made my working conditions so intolerable

that no reasonable person could expect to work.” J.A. 106.

In his deposition in this case, Alba was questioned regarding

whether he had “the sense that if you did not resign from [ML] that

7
you would have been terminated?” Alba replied: “I can’t make that

conclusion . . . because Mr. DiCenso in that 60-second phone call

after the second phone call, said . . . ‘[w]e’ll talk about this

next week. We can maybe make an arrangement’” J.A. 196. Although

Alba doubted DiCenso’s sincerity, he believed that it was possible

that ML would work out some arrangement without terminating his

employment.

After Alba resigned, ML refused to pay Alba more than $450,000

in Alba’s FACAAP and WealthBuilder Plan accounts. ML also did not

allow Alba to sell his book of business. Instead, ML distributed

all of Alba’s accounts to other ML financial advisors.

II.

In his original complaint, Alba asserted that ML violated the

ADEA by constructively discharging him (Count I); that ML breached

the Vogel agreement and/or an implied agreement by disallowing him

from selling his vested interest in his book of business (Counts II

and III); that ML breached its agreement to pay, or should be

equitably estopped from denying him, benefits under the FACAAP and

WealthBuilder Plan (Count IV); that ML should be promissorily

estopped from depriving him of his vested interest in his book of

business (Count V); that ML fraudulently induced him to enter the

Vogel agreement while ultimately planning to seize his book of

business by forcing him to resign without compensating him (Count

8
VI); that ML was unjustly enriched by seizing his book of business

without compensating him (Count VII); that ML converted his book of

business by seizing it without compensating him (Count VIII); that

ML defamed him by making false representations about his

professional reputation (Count IX); that ML intentionally

interfered with his expectancy that he would continue to have a

business relationship with his clients (Count X); and that ML

intentionally inflicted emotional distress on him by seizing his

book of business and constructively discharging him (Count XI).

Alba agreed to the dismissal of Count V (Promissory Estoppel),

Count VI (Fraudulent Misrepresentation), and Count IX (Defamation).

The district court granted ML’s motion to dismiss Count VIII

(Conversion), Count X (Interference with Business Opportunity), and

Count XI (Intentional Infliction of Emotional Distress). Alba does

not appeal the dismissal of these six claims.2

After extensive discovery, ML moved for summary judgment.

Soon thereafter, Alba sustained serious injuries in a fall and was

hospitalized. Alba’s counsel moved to continue trial and to allow

Alba additional time to file an affidavit explaining some of his

statements in his deposition. In particular, Alba wanted to

clarify that he knew that ML was trying to force him out when he

2
After the district court dismissed Alba’s original claim
alleging intentional interference with a business opportunity, Alba
amended that count. The district court later granted summary
judgment in favor of ML on that count, and Alba does not appeal
that ruling.

9
resigned. The district court granted the motion to continue trial

but denied Alba’s request to file an additional affidavit,

concluding that Alba was not seeking to add new evidence but rather

was merely attempting to argue inferences from evidence already in

the record.

The district court thereafter granted summary judgment in

favor of ML on all of Alba’s remaining claims. Within ten days,

Alba filed a motion to alter or amend the judgment, and attached an

affidavit making several new allegations and explaining his

previous deposition testimony. ML moved to strike this new

affidavit.

The district court denied Alba’s motion to alter or amend the

judgment, and Alba timely filed a notice of appeal. Four days

after Alba filed his notice of appeal, the district court granted

ML’s motion to strike the new affidavit as “untimely filed.” J.A.

1964. Alba filed an amended notice of appeal to include the

district court’s order striking the new affidavit.

10
 III.

A.

Alba argues that the district court erred by granting summary

judgment in favor of ML on his claim that ML constructively

discharged him based on his age.3 We disagree.

Under the ADEA, it is unlawful for an employer “to discharge

any individual or otherwise discriminate against any individual

with respect to his compensation, terms, conditions, or privileges

of employment, because of such individual’s age.” 29 U.S.C.

§ 623(a)(1). To establish a prima facie case of age discrimination

by constructive discharge under the McDonnell Douglas Corp. v.

Green, 411 U.S. 792 (1973), framework, Alba must establish the

3
Although Alba alleged only constructive discharge in his
complaint, we will also consider his additional claim advanced on
appeal that he was actually discharged.

Alba’s actual discharge claim lacks merit. While it is true
that the words “fired” or “terminated” need not be used by an
employer before an employee may deem himself actually discharged,
Honor v. Booz-Allen & Hamilton, Inc., 383 F.3d 180, 185 (4th Cir.
2004), a plaintiff may not resign and later claim he was actually
discharged if he did not think at the time of his resignation that
his termination was inevitable, see EEOC v. Service News Co., 898
F.2d 958, 960-62 (4th Cir. 1990)(ruling that sufficient evidence
supported finding of actual discharge in part because the plaintiff
concluded that she was being discharged based on her last
conversation with her supervisor). Alba stated in his deposition
that after his final conversation with DiCenso he thought that it
was possible that his employment at ML would not be terminated.
Thus, it is clear that Alba did not consider his employment
actually terminated when he resigned. Alba’s complaint confirms
Alba’s perception that his was a constructive rather than actual
termination. Alba alleges that he “submitted to [ML] a letter
recognizing his constructive discharge.” J.A. 76 (emphasis added).

11
following four elements: (1) he was constructively discharged; (2)

he was at least 40 years old at that time; (3) he was performing

his job duties at a level that met ML’s legitimate expectations at

the time of his constructive discharge; and (4) he was treated more

harshly than other similarly situated younger employees. See Hill

v. Lockheed Martin Logistics Mgmt., Inc., 354 F.3d 277, 285 (4th

Cir. 2004)(en banc); Cook v. CSX Transp. Corp., 988 F.2d 507, 511

(4th Cir. 1993) (establishing elements of prima facie case in

enforcement of disciplinary measures in race discrimination

context). It is undisputed that Alba satisfies the second element

because he was 62 years old when his employment terminated. We

also conclude that a question of fact exists whether Alba was

meeting his employer’s legitimate job expectations when his

employment terminated. We hold, however, that Alba has failed to

establish that he was constructively discharged and that he was

treated more harshly than similarly situated younger employees.

1.

Alba has failed to present evidence demonstrating that he was

constructively discharged. An employee who is not actually

discharged may be entitled to relief, if his employer intentionally

makes his working conditions intolerable in an effort to cause him

to resign. Honor, 383 F.3d at 186. Because constructive discharge

claims are susceptible to abuse by those who voluntarily leave

their employment, we have insisted that they be strictly cabined.

12
Id. at 187. To demonstrate constructive discharge, an employee

must prove (1) that the employer’s intentional actions were

motivated by age bias and (2) that the working conditions were

objectively intolerable. Id. at 186-87.

Assuming without deciding that Alba has sufficiently

established that ML’s efforts to force his resignation were

motivated specifically by age bias, Alba must demonstrate that his

working conditions were so objectively intolerable that a

reasonable employee would have been compelled to quit. See

Pennsylvania State Police v. Suders, 542 U.S. 129, 141 (2004).

Alba claims his working conditions were intolerable because his

supervisors, all of whom were much younger, unfairly criticized his

work. Although Alba concedes that a minute percentage of his

clients complained about how he was handling their accounts, he

insists that his trading practices were not as risky as the

practices of other younger financial advisors, including his

immediate supervisor. Alba also asserts that his supervisors tried

to make his working conditions intolerable by forcing his son to

resign and firing another trainee in the Alba Group at that same

time ML was trying to force him out, by threatening him with loss

of his FACAAP and WealthBuilder benefits if he refused to retire,

by telling some of his colleagues that his employment would be

terminated long before he ultimately left, and by disconnecting his

access to ML’s computer system.

13
 While we agree that Alba’s allegations show that his working

conditions were difficult and stressful, we hold that they cannot

reasonably be described as intolerable. See Honor, 383 F.3d at

183-87 (concluding that plaintiff’s job conditions were not

intolerable even though he was told that he would be losing his job

and was subjected to racial hostility from a coworker); Williams v.

Giant Food Inc., 370 F.3d 423, 434 (4th Cir. 2004) (ruling that

allegations were insufficient to support charge of constructive

discharge even though supervisors yelled at plaintiff, gave her

poor evaluations, told her she was an incompetent manager,

criticized her in front of customers, and once insisted that she

work with an injury). Although Alba insists that his supervisors’

complaints against him were unwarranted, “a feeling of being

unfairly criticized, or difficult or unpleasant working conditions

are not so intolerable as to compel a reasonable person to resign.”

Carter v. Ball, 33 F.3d 450, 459 (4th Cir. 1994). Moreover,

despite the pressure that Alba was under to retire, he admitted in

his deposition that after his last conversation with DiCenso the

day before he resigned he still thought it was possible that ML

might work out some arrangement with him short of termination.

Alba also agreed that there was nothing preventing him from

returning to work the following work day and performing his duties

as a financial advisor.

14
 2.

Alba has also failed to demonstrate that younger employees

similarly situated to him were treated more favorably. The person

most similarly situated to Alba was his son, Chris. Chris was part

of the Alba Group, and ML accused both Alba and Chris of the same

type of malfeasance relating to their shared client accounts.

Chris was forced to resign at about the same time that his father

resigned, so it is clear that ML did not treat Chris more favorably

even though he was much younger.

Alba, nevertheless, argues that ML’s treatment of Peter Russo,

a 32 year old financial advisor, demonstrates that ML treated

younger employees more favorably. Alba claims that Russo received

slightly fewer client complaints than he did, but that Russo had a

much smaller client base and that some of the complaints against

Russo involved substantially greater investment losses than the

complaints against him. Alba contends that Russo, despite

receiving a much higher percentage of, and more serious, complaints

than Alba, was treated more favorably because he was merely placed

on probation and not forced out of his job.

In determining whether Alba has presented evidence that ML

treated him less favorably than other younger employees, we must

compare the treatment he received with the treatment received by

persons outside his protected class for similar conduct. See Cook,

988 F.2d at 511. In other words, Alba must show that Russo engaged

15
in similar conduct and that ML treated Russo less harshly than

Alba.

Although we assume without deciding that Russo engaged in

conduct comparable in seriousness to Alba,4 we conclude that Alba

has failed to demonstrate that ML treated Russo less harshly under

the circumstances. Soon after the initial complaints were lodged

against Russo, ML disciplined him by prohibiting him from managing

any of his group’s existing investment accounts and by restricting

him solely to prospecting for new clients. Because Russo had been

trading excessively in his personal account, ML also transferred

his personal account to another financial advisor to manage. ML

received no further complaints against Russo for work performed

after he was relieved of his account management duties.

By contrast, ML took no immediate tangible action against Alba

when ML received the initial client complaints against him.

Instead, ML directed Alba to reduce margin trading in his client

accounts and to utilize a more conservative investment strategy.

It was more than a year later -- after Alba received several more

client complaints and after ML discovered that margin balances were

4
Whether there is evidence that Russo’s and Alba’s conduct
should be considered comparable is a close question. Although one
of the primary complaints against both Russo and Alba is that they
placed their clients in risky, high-tech stocks, it appears that
there were other important differences in the complaints against
them. For instance, Alba was accused of unauthorized margin
trading but Russo was not. Moreover, most of the clients who made
complaints against Alba were older and less risk-tolerant than the
younger and more risk-tolerant clients that Russo advised.

16
still very high in many of Alba’s client accounts -- that ML urged

Alba to retire. Moreover, even though Alba made more trades in his

personal account than Russo, Alba was allowed to continue managing

his personal account. In light of the fact that ML immediately

disciplined Russo but gave Alba an opportunity for more than a year

to improve his client accounts, we conclude that Alba has failed to

demonstrate that ML treated him more harshly than Russo.5

In sum, Alba has failed to establish that he was

constructively discharged and that he was treated more harshly than

similarly situated younger employees. Thus, we conclude that the

district court properly granted summary judgment in favor of ML on

Alba’s ADEA claim.

B.

Alba next argues that the district court erred by granting

summary judgment on his claims alleging that ML violated his right

5
An alternative basis exists for our ruling that Alba has
failed to establish that he was treated more harshly than younger
employees. ML produced evidence that it discharged two other
younger employees -- in addition to Chris Alba -- who received
fewer complaints than Alba. Thus, even if Alba could show that he
was treated more harshly than Russo, it is clear that the record as
a whole does not give rise to a reasonable inference that Alba was
discriminated against because of his age. See Cook, 988 F.2d at
512 (“A plaintiff seeking to establish a prima facie case by
relying on a broad history of disciplinary enforcement cannot
fairly claim that an inference of . . . discrimination should be
drawn from one factual circumstance taken out of the context of the
disciplinary treatment generally afforded by the employer for
conduct similar to that of the plaintiff”).

17
to be compensated for selling his book of business to other ML

financial advisors. Alba contends he has presented sufficient

evidence to support a claim for breach of express contract, implied

contract, and unjust enrichment. We disagree.

In support of his express contract claim, Alba relies on a

provision in the 1993 Vogel agreement that states: “As of January

1st 1996, or there about, Herb Vogel will relinquish title to all

accounts to Mike Alba and Mike will be the sole financial

consultant responsible for all accounts.” J.A. 267 (emphasis

added). Alba claims that this provision gave him a legal interest

in all the accounts that were transferred to him in 1996 and a

right to be compensated for transferring his book of business to

other financial advisors at ML.

In the alternative, Alba claims that he had an implied

contractual right to be compensated for transferring his book of

business. This implied right, he contends, is based on the fact

that pooling agreements like the Vogel agreement are a common

mechanism at ML by which retiring financial advisors receive

compensation for transferring their book of business. According to

Alba, it was understood and expected that each financial advisor

could sell his book of business. Alba’s unjust enrichment claim is

also based on the premise that ML knew that Alba expected that he

would be compensated when he later transferred his accounts to

another ML financial advisor.

18
 All of Alba’s alternative claims suffer from the same fatal

flaw. Even assuming that the 1993 Vogel agreement or some other

implied agreement granted Alba title to his accounts and some sort

of right to later transfer them for compensation, Alba relinquished

any such right when he entered into the Alba Team Agreement. In

that agreement, Alba specifically agreed that ML “at all times

retains the right to assign customer accounts to the Financial

Advisors which it believes will best service those customers” and

that ML could “discharge [Alba] at any time with or without cause.”

J.A. 259-60. The only evidence of any agreed practice of allowing

one financial advisor to sell his book of business to another

financial advisor occurred during a transition period in which both

the “selling” and the “buying” financial advisors agreed to share

compensation from joint clients while both financial advisors

remained employed by ML. Alba has pointed to no evidence that any

“selling” financial advisor was paid any compensation for his book

of business after his employment terminated.6 Because Alba’s

employment terminated, Alba was not entitled to any additional

compensation for any of the client accounts he formerly held, and

ML expressly had the right under the Alba Team Agreement to

reassign those accounts.

6
Alba stated that he expected to be allowed to enter into an
arrangement similar to the Vogel Agreement “to transition business
before leaving [ML].” J.A. 1918 (emphasis added).

19
 C.

Alba also argues that ML breached the FACAAP and WealthBuilder

Plan by failing to pay him more than $450,000 in vested benefits.

In the alternative, Alba claims that ML should be equitably

estopped from refusing to pay him benefits under the Plans. We

conclude that the district court properly granted summary judgment

in favor of ML on these alternative claims.

1.

The FACAAP is a benefit plan intended to reflect ML’s

“commitment to reward top producing” financial advisors and to

“establish and retain a strong sales force [of financial advisors]

. . . by recognizing the benefits of their contributions to” ML.

J.A. 1395. The WealthBuilder Plan shares many of the same

administrative provisions of the FACAAP, but is available only to

a more select group of ML financial advisors. The WealthBuilder

Plan “is maintained primarily for the purpose of providing deferred

compensation for [the top 15% earners] who remain in the employ of

[ML] until retirement or completion of a substantial period of

service.” J.A. 1420.

Benefits under both plans are based on a percentage of revenue

that the financial advisor produces for ML. If a financial advisor

meets all of the revenue production goals established by ML for a

given performance period, ML calculates the “award” the financial

advisor has earned and credits his account with that amount.

20
Awards are based solely on the revenue production of each

individual financial advisor and are not contingent on ML’s overall

financial performance. It is undisputed that Alba met the revenue

production eligibility requirements to participate in the FACAAP

and WealthBuilder Plan most of his thirteen years at ML (except,

for instance, during the Vogel agreement years), and that more than

$456,000 was credited to Alba’s Plan accounts by June 2002.

Under the FACAAP and the WealthBuilder Plan, ML pays credited

awards when a participant retires. “Retirement” is defined broadly

and includes “when you cease employment on or after your 55th

birthday and you have completed at least 10 years of service.”

J.A. 1397.7 ML concedes that Alba qualifies for “Retirement” under

the Plans even though he specifically resigned rather than retired

in July 2002. However, both Plans allow for the “forfeiture” of

account balances if ML determines that the participant engaged in

misconduct.

Alba argues that he satisfied all the objective criteria to be

eligible for benefits under both Plans. Thus, he contends that the

awards credited to his Plan accounts constitute earned wages that

cannot be forfeited.

ML, on the other hand, argues that it paid Alba all the wages

he was due each year under his normal salary/commission agreement

7
The WealthBuilder Plan uses the term “Qualifying Termination”
instead of “Retirement,” but the two definitions are similar. J.A.
1423.

21
with ML. ML contends that the amounts credited to Alba under the

FACAAP and the WealthBuilder Plan were discretionary “incentive

compensation” payments that could be forfeited for several

different reasons, including misconduct. Because allegations of

misconduct were levied against Alba by numerous clients, ML insists

that it had discretion to deem Alba’s account balances forfeited.

The parties agree that whether ML breached the FACAAP and

WealthBuilder Plan by not paying the Plan benefits is a question

governed by New York law. “Wages” are defined under New York law

as: “the earnings of an employee for labor or services rendered,

regardless of whether the amount of earnings is determined on a

time, piece, commission or other basis.” N.Y. LAB. LAW § 190.1.

Despite this broad definition, wages do not include incentive

compensation benefits. Truelove v. Northeast Capital & Advisory

Inc., 702 N.Y.S.2d 147, 149 (N.Y. App. Div. 2000). “The

dispositive factor in determining whether compensation constitutes

wages is not the labeling of the plan but whether the compensation

is vested and mandatory as opposed to discretionary and

forfeitable.” Id. Receipt of a separate nondiscretionary salary

generally negates an inference that benefits payable under another

benefits plan constitute wages. See International Bus. Mach. Corp.

v. Martson, 37 F. Supp. 2d 613, 618 (S.D.N.Y. 1999).

ML paid Alba a regular salary each year under a fixed

compensation schedule based on sales commissions. These payments

22
were nondiscretionary and not forfeitable. Alba does not dispute

that ML paid him all the sales commissions he was due under his

regular salary. The benefits payable under the FACAAP and

WealthBuilder Plans, however, were discretionary and forfeitable.

Both of the Plans contain provisions stating that the benefits can

be forfeited and that ML retains the right to determine if the

benefits in the account balances should be forfeited under the

terms of the Plans. Thus, even though benefits under the Plans are

calculated based solely on Alba’s level of production, the benefits

under both Plans are discretionary and forfeitable under certain

circumstances specified under the Plans. Therefore, we conclude

that the amounts credited to Alba’s account balances in both Plans

do not constitute earned wages and, therefore, can be forfeited.

2.

Alba also argues that ML should be equitably estopped from

refusing to pay the amounts credited to account balances under the

FACAAP and the WealthBuilder Plan. Alba claims that ML effectively

offered to pay him benefits under the Plans if he agreed to leave

ML. Because he left ML, Alba contends that ML cannot “go back on

its word and refuse to pay the awards.” Alba Brief p. 51.

The elements essential to establish equitable estoppel are:

(1) a representation was made to the plaintiff (2) upon which the

plaintiff relied, and (3) the plaintiff then changed his position

(4) to his detriment. Waynesboro Vill., L.L.C. v. BMC Props., 496

23
S.E.2d 64, 68 (Va. 1998).8 Viewing the evidence in the light most

favorable to Alba, ML, by its agents DiCenso and Greene,

represented to Alba that he would be paid his account balances

under the FACAAP and the WealthBuilder Plan if he agreed to retire.

As Alba admitted in his deposition, he understood that there was a

difference between retiring and resigning when he decided to

resign. Thus, it is clear as a matter of law that Alba did not

rely on ML’s representation that he would be paid benefits if he

retired.9

D.

Alba also argues that ML owes him approximately $15,000 under

its Deferred Compensation Plan. ML failed to respond to this

argument in its brief. We vacate the grant of summary judgment in

8
ML argues that Alba’s equitable estoppel claim fails under
Virginia law. Alba does not cite Virginia or New York law in
support of his equitable estoppel claim. We note, however, that
the elements of equitable estoppel under New York law are similar
to the Virginia elements, see Town of Hempstead v. Incorporated
Vill. of Freeport, 790 N.Y.S.2d 518, 520 (N.Y. App. Div. 2005), so
the same result attains under either state law.
9
Alba contends that the distinction in ML’s representation
between retiring and resigning is arbitrary in light of the fact
that Alba was later deemed to be retired -- even though he resigned
-- under the broad definition of “Retirement” under the Plans.
There is no evidence, however, that Alba was relying on the Plan
definitions when he decided to resign rather than retire.
Moreover, Alba alleges in his complaint that even after he
resigned, DiCenso offered to give Alba his benefits if he would
agree to come back to ML and retire. Alba clearly knew there was
a significant difference between retiring and resigning for
purposes of DiCenso’s offer.

24
favor of ML on this claim and remand to the district court for

further proceedings.

E.

Alba next argues that the district court lacked jurisdiction

to grant ML’s motion to strike Alba’s affidavit -- which was

attached to his motion to alter or amend judgment -- four days

after Alba filed his initial notice of appeal. Alba further argues

that his affidavit was properly filed and creates genuine issues of

material fact precluding summary judgment in favor of ML.

For purposes of our review, we assume without deciding that

the district court lacked jurisdiction to strike Alba’s affidavit.

Thus, we address Alba’s ultimate contention that his affidavit

establishes facts requiring reversal of the district court’s grant

of summary judgment.

In support of its assertion that Alba was not constructively

or actually discharged but instead voluntarily chose to resign, ML

relies in part on the following portion of Alba’s deposition

testimony in which Alba references his final conversation with

DiCenso the day before Alba resigned:

Q: [D]id you have the sense that if you did not
resign from [ML], that you would have been
terminated?

Alba: I can’t make that conclusion.

Q: You don’t know one way or the other whether or
not you’d have been terminated?

25
 Alba: No, because Mr. DiCenso in that 60-second
phone call after the second phone call, said
that, “maybe we can work -” words to the
effect that “Maybe we can – We’ll talk about
this next week, we can maybe make an
arrangement, or something.” Okay, but, um,
no.

Q: So it was possible [ML] had contemplated
working out some sort of arrangement with you,
short of terminating you.

Alba: Yes.

J.A. 196.10

Despite this testimony, Alba states in his new affidavit that

in the weeks leading up to his resignation ML “made it absolutely

clear to me that there was no possibility that I could continue to

10
Alba was deposed by ML on three days. The last day of
deposition was approximately two months after the first two days.
On his last day of deposition, Alba testified that he could not
remember DiCenso saying that they would get together the next week
and “work something out.” J.A. 1636. After ML’s counsel showed
Alba the transcript of his contrary testimony from his earlier
deposition, Alba agreed that DiCenso did say in their last phone
conversation that they should get together the next week and “work
it out.” J.A. 1638. However, Alba added that he felt that DiCenso
had no intention of working things out.

Alba’s subsequent deposition testimony casting doubt on the
sincerity of DiCenso’s intentions does not create a genuine issue
of material fact on Alba’s constructive or actual discharge claims.
Regardless of whether Alba believed that DiCenso would help Alba
“work things out,” Alba testified that he believed at the time he
resigned that it was possible that ML would not terminate him.
Alba further testified that (apart from his resignation) there was
nothing preventing him from going back to work the following Monday
and performing his duties as a financial advisor at ML.

26
work at” ML. J.A. 1935 (emphasis added). Alba further insists in

his affidavit that any implication derived from his prior

deposition testimony that he believed that he might be able to

continue his employment at ML “is the opposite of what I meant.”

Id.

Alba’s subsequent affidavit statements contradict his

deposition testimony. Alba’s deposition testimony clearly

establishes that Alba believed at the time he resigned that it was

possible that he would be allowed to continue his employment at ML.

It is well recognized that a plaintiff may not avoid summary

judgment by submitting an affidavit that conflicts with earlier

deposition testimony. See Barwick v. Celotex Corp., 736 F.2d 946,

960 (4th Cir. 1984). “A genuine issue of material fact is not

created where the only issue of fact is to determine which of the

two conflicting versions of the plaintiff's testimony is correct.”

Id. “If a party who has been examined at length on deposition

could raise an issue of fact simply by submitting an affidavit

contradicting his own prior testimony, this would greatly diminish

the utility of summary judgment as a procedure for screening out

sham issues of fact.” Id. (quoting Perma Research and Development

Co. v. The Singer Co., 410 F.2d 572, 578 (2nd Cir. 1969)). Alba’s

affidavit statements attempting to explain and refute his earlier

deposition testimony do not create a genuine issue of material fact

27
regarding whether he was constructively or actually discharged by

ML.11

IV.

For the foregoing reasons, we affirm the district court’s

grant of summary judgment in favor of ML as to all claims except

for Alba’s deferred compensation claim. We vacate that portion of

the judgment and remand for further proceedings.

AFFIRMED IN PART AND
VACATED AND REMANDED IN PART

11
Alba’s 25-page affidavit contains assertions of fact that are
largely cumulative to evidence already in the record. We have
reviewed the entire affidavit, but none of the statements creates
any genuine issue of material fact precluding summary judgment on
the issues before us.

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