Opinion
Civil Action No. 97-1715(JWB).
January 12, 1999
JACQUELINE JASSNER POQUETTE, ESQUIRE, Towaco, New Jersey, (Attorney for Plaintiff).
MORGAN, LEWIS BOCKIUS, By: Robert A. White, Esquire, Princeton, New Jersey, (Of Counsel) and MORGAN, LEWIS BOCKIUS, By: James N. Boudreau, Esquire, Philadelphia, Pennsylvania, (Of Counsel), (Attorneys for Defendants).
O P I N I O N
The present matter comes before the Court on the defendant CoreStates Financial Corp. ("CoreStates") and Crystal Reilly's ("Reilly") motion for summary judgment. The plaintiff Aldora Thompson ("Thompson") filed an eight-count Complaint on February 11, 1997. The first five counts of the Complaint asserted five separate and independent violations of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. The remaining counts asserted various other state law claims based on the conduct alleged in the first five counts. On December 8, 1997, this Court entered its Opinion and Order dismissing Counts One, Three, Five, Six, Seven and Eight of the Complaint. Of the remaining counts, the Second Count alleges that CoreStates discriminated against Thompson by denying her the opportunity to meet and develop business relationships with her clients on the basis of her race. The Fourth Count alleges that CoreStates discriminated against her by denying her the opportunity to work on "special" projects on the basis of her race. Pending before the Court presently is the defendants' motion for summary judgment on these remaining counts. Discovery in this case was completed on July 15, 1998. This Court has jurisdiction pursuant to 28 U.S.C. § 1332.
FACTS AND BACKGROUND
Aldora Thompson is an African-American woman who began working for CoreStates as a secretary/receptionist in its Somerset, New Jersey office in May 1989. (Defendants' 56.1 Stmt., ¶ 1). In 1990, Thompson was promoted to the position of Account Administrator. (Id.) In January 1995, Thompson was transferred to CoreStates' New Brunswick, New Jersey office, where she reported directly to Crystal Reilly. (Id., ¶ 2). Reilly supervised Thompson from approximately January 1995 until March 1997. (Id.)
Reilly was the "team leader" of nine Account Administrators at the New Brunswick office during the relevant time frame. The Account Administrators were divided into two groups — the Middle Market Group ("Middle Market") and the Commercial Business Group ("CBG"). They provided day-to-day banking services to a specific group or portfolio of wholesale banking customers. (Id., ¶ 4). Although Thompson began in the Middle Market group, when she was transferred to the New Brunswick office she was reassigned to the CBG because of the large number of customers in CBG. (Id.)
The Account Administrators at the New Brunswick office were: Aldora Thompson (African-American/Female); Renee Rebhun (White/Female); Robin Bertot (White/Female); Barbara Tobias (White/Female); Tracey Rule (White/Female); Lydia Lohrey (White/Female); Ming Lansing (Asian/Female); Denise Clemons (Black/Female); and Kathy MacIntosh (White/Female). ( Id ., ¶ 3).
Concurrent with Thompson's reassignment to the CBG, management for CoreStates' New Jersey banking market began redefining the role of the Account Administrators. Until that point, Relationship Managers had primary contact with the bank's customers. (Id.) In an effort to provide Account Administrators with more opportunities to provide customer support, however, CoreStates encouraged Account Administrators to meet with their Relationship Managers to identify potential customer contacts. (Id., ¶ 6). Although Relationship Managers accompanied Account Administrators on their initial customer visits, Account Administrators were eventually allowed to visit customers with just their team leaders, and finally on their own. (Id., ¶ 7). Although Reilly encouraged Account Administrators to visit customers, they did not need to obtain Reilly's approval for such visits. Instead, it was the Relationship Managers who approved of and coordinated visits with customers. (Id., ¶ 8). Reilly has also testified that while these visits were encouraged, they were neither mandatory nor a formal part of the Account Administrator's job description. (Reilly Decl., ¶ 6).
In addition to their normal banking services, Reilly occasionally assigned Account Administrators to work on non- routine "special projects." According to Reilly, during her supervision of Thompson, there were five major projects to which Account Administrators were assigned. (Reilly Decl., ¶ 10). Assignments to special projects were based on factors including the Account Administrators' workload, their experience and skills with respect to a particular project, and their interest in the project. (Id.) Again according to Reilly, Thompson worked on as many special projects as the majority of the other Account Administrators. (Id., ¶ 11). For example, Reilly had assigned Thompson to work on the Sarprint and "audit" projects. (Defendants' 56.1 Stmt., ¶ 12).
Uncontested by Thompson is the fact that she only expressed an interest in working on a specific special project on one occasion. In January 1997, Thompson asked to work on the "Goldmine" project, a project in which several other Account Administrators had also expressed interest. According to Reilly, she ultimately selected Renee Rebhun to work on the project because she was already the Goldmine" coordinator and had been trained on the "Goldmine" computer system. (Reilly Decl., ¶ 12). The other volunteers, including Thompson, were not trained on the "Goldmine" computer database and would have required additional training before they could begin work on the project. (Id.)
During Reilly's supervision of Thompson, Thompson not only received every salary increase she was supposed to receive, but in 1996 she received a total salary increase of 13.86% when the average increase was 4%. (Id., ¶ 15). No other Account Administrator who reported to Reilly in 1996 received as large a salary increase. (Id.) Similarly in 1996, Reilly promoted Thompson from an Account Administrator level 37 to an Account Administrator 39. None of the other Account Administrators under Reilly's supervision received two job grade increases in 1996. When Reilly stopped supervising Thompson in March 1997, Thompson was the highest paid of the three CBG Account Administrators, and the third highest paid of all the Account Administrators in CoreStates' New Brunswick office. (Id., ¶ 18). Moreover, Thompson had been designated to receive a promotion in 1998 except that the pending merger between CoreStates and First Union Corporation interrupted that promotion. (Id.) Thompson was still employed at CoreStates as of her deposition on June 8, 1998.
ANALYSIS I. Summary Judgment Standard
Federal Rule of Federal Procedure 56(c) provides that summary judgment should be granted "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 the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); see also Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.) (en banc), cert. dismissed, 483 U.S. 1052 (1987). In deciding a motion for summary judgment, a court must view the facts in the light most favorable to the nonmoving party and must resolve any reasonable doubt as to the existence of a genuine issue of fact against the moving party. Continental Insurance Co. v. Bodie, 682 F.2d 436, 438 (3d Cir. 1982). The moving party has the burden of establishing that there are no genuine issues of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-24 (1986).
The Supreme Court has stated that, in applying the criteria for granting summary judgment:
the judge must ask . . . not whether . . . the evidence unmistakably favors one side or the other but whether a fair-minded jury could return a verdict for the [nonmoving party] on the evidence presented. The mere existence of a scintilla of evidence in support of the [non-movant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmoving party]. The judge's inquiry, therefore, unavoidably asks whether reasonable jurors could find by a preponderance of the evidence that the [non-movant] is entitled to a verdict.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). A fact is "material" only if it will affect the outcome of a lawsuit under the applicable law, and a dispute over a material fact is "genuine" if the evidence is such that a reasonable fact- finder could return a verdict for the nonmoving party. (Id.)
In order to survive a motion for summary judgment, the nonmoving party must present "more than a mere scintilla of evidence" in his favor. Moreover, he "cannot simply reallege factually unsupported allegations contained in his pleadings." (Id. at 249, 325; see also Maguire v. Hughes Aircraft Corp., 912 F.2d 67, 72 (3d Cir. 1990)). If, for example, the nonmovant submits an affidavit to support his opposition to the summary judgment motion, Fed.R.Civ.P. 56(e) requires that such affidavit be based "on personal knowledge," and "show affirmatively that the affiant is competent to testify in all matters stated therein." Williams v. Borough of West Chester, Pa., 891 F.2d 458, 470 (3d Cir. 1989). Only evidence that would be admissible at trial may be used to test a summary judgment motion. Evidence with a deficient foundation must be excluded from consideration. (Id. at 466; see also Trap Rock Indus., Inc. v. Local 825, Int'l Union of Operating Eng'rs, 982 F.2d 884, 890- 91 (3d Cir. 1992)).
II. The Defendants' Motion for Summary Judgment is Granted
The remaining two counts of Thompson's Complaint allege violations of the New Jersey law Against Discrimination ("NJLAD"), N.J.S.A. § 10:5-1 et seq. In the employment discrimination context, the New Jersey Supreme Court has adopted the analytical framework established by the Supreme Court for claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e, specifically the McDonnell Douglas burden- shifting framework. (Id.) See, e.g., Erickson v. Marsh McLennan, 117 N.J. 539, 551 (1990) (using a Title VII analysis in an NJLAD claim alleging gender discrimination); Anderson v. Exxon Co., 89 N.J. 483 (1982) (applying the McDonnell Douglas analysis in an NJLAD claim alleging discrimination based on physical handicap); Goodman v. London Metals Exch., 86 N.J. 19, 31 (1981) (applying a Title VII analysis in an NJLAD claim alleging sex discrimination).
To establish a Title VII violation, the plaintiff bears the initial burden of proving by a preponderance of the evidence a prima facie case of discrimination. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 804 (1973). Should the plaintiff succeed in proving the prima facie case, a presumption arises that the defendant unlawfully discriminated against the plaintiff and the defendant bears the burden of producing evidence that the employment decision was made for legitimate, nondiscriminatory reasons. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253-54 (1981). Finally, if the defendant produces such evidence, the plaintiff must demonstrate by a preponderance of the evidence that the reasons proffered by the defendant were merely pretexts for discrimination. (Id. at 253).
As to the plaintiff's initial burden, the Third Circuit has noted that "`the nature of the required showing' to establish a prima facie case of disparate treatment by indirect evidence `depends on the circumstances of the case.'" Torre v. Casio, Inc., 42 F.3d 825, 830 (3d Cir. 1994) (citingMassarsky v. General Motors Corp., 706 F.2d 111, 118 n. 13 (3d Cir.10,cert. denied, 464 U.S. 937 (1983)). In the present case involving a claim of employment discrimination, the plaintiff must show by a preponderance of the evidence that: (1) she is a member of a protected class; (2) she was qualified for a position; (3) but was nonetheless rejected despite her qualifications, and (4) persons not members of the protected class were treated more favorably. Roebuck v. Drexel University, 852 F.2d 715 (3d Cir. 1988). While the McDonnell Douglas prima facie test is not an onerous burden, it does require that the plaintiff, at a minimum, proffer sufficient evidence to create an inference of unlawful discrimination.Burdine, at 253. The defendants contend that Thompson failed to establish even a prima facie case of discrimination on both remaining counts. The Court agrees and addresses each count in turn.
The Second Count
In the Second Count, Thompson states that as part of their job functions, Account Administrators were required to visit their customers, assist them with their banking needs and develop personal business relationships with them. (Compl., ¶ 14).
She then alleges that while all the other Account Administrators were permitted to schedule visits with their customers, "[d]espite numerous requests to do so, all of [her] efforts to visit with her customers have been denied." (Id., ¶ 15).
It should be clarified at the outset that although Thompson alleges that she was "denied" the opportunity, her deposition testimony reveals that she was not "denied" any opportunities insofar as she was "forbidden" to visit any customers. Thompson admits in her deposition that Reilly never specifically told her that she could not go visit any customers, and that in fact Reilly "okayed" the list of customers Thompson wanted to visit. (Thompson Dep. at 136). Moreover, although Thompson alleges that" all her efforts to visit customers [were] denied," she also admits that she actually visited several customers both before and after her supervision by Reilly. In light of the above, it appears that the discrimination Thompson alleges is actually subtler than being overtly forbidden from visiting any customers. Instead, what Thompson appears to be disgruntled about is not being taken out by Reilly to visit customers with the same frequency as some of the other Account Administrators. It is through this lens that the Court assesses whether Thompson has established a prima facie case.
As stated in the Facts, Reilly visited at least two customers — Don Cosmetos and U.S.S. Corps — while under the supervision of Reilly. (Thompson Dep. at 78). Apparently after Reilly was no longer Thompson's supervisor, Thompson continued to visit customers with Reilly's successor, who "took [her] out a lot." ( Id . at 77).
Curiously, the defendants do not appear to contest that Thompson was denied the opportunity to visit many of her customers but instead focus on the materiality of those denials. Drawing the Court's attention to her accomplishments while at CoreStates ( i.e . , favorable performance ratings, pay increases, performance awards), the defendants assert that the alleged decisions had absolutely no impact on the terms of her employment or on her professional advancement. Accordingly, the defendants argue, the alleged decisions do not reach the threshold level of materiality required in order to invoke the NJLAD. The Court is not so persuaded. The Court agrees that Thompson's accomplishments while at CoreStates are relevant indicia of whether she suffered any gross mistreatment or was denied any opportunities for advancement. The Court does not believe, however, that those accomplishments automatically foreclose the possibility that she suffered a materially adverse employment decision. In the present case, for example, Thompson appears to have done well and received all the expected raises and promotions. Nonetheless, given that almost no evidence was submitted as to the factors normally considered when determining the promotion schedule of an Account Administrator, the Court is reluctant to rely solely on the defendants' contentions and assume that the alleged denials will not in fact have a material impact on her chances for advancement later in her career. As such, the Court finds that Thompson in fact suffered a material adverse employment decision.
Even putting aside the issue of whether Thompson can rely solely on her own deposition to fulfill her burden, and also assuming arguendo that not being taken out to visit customers constitutes an actionable claim under the NJLAD, Thompson's own testimony does not raise the inference of unlawful discrimination.
In her deposition, Thompson asserts that despite complaining to Reilly, and despite submitting to Reilly a list of those customers that she wanted to visit, Thompson was never asked to visit any of those customers. According to Thompson, however, some other Account Administrators went to visit the very customers that she had wanted to visit. Similarly, while there is absolutely no evidence in the record to suggest that Reilly ever went to visit a customer with Thompson, Thompson asserts that Reilly went out on customer calls with all of the other Account Administrators. (Thompson Dep. at 138). This is simply not enough evidence for the Court to infer any type of unlawful discrimination.
At the most basic level, Thompson fails to assert with any degree of particularity which Account Administrators had the opportunity to visit customers or the frequency of those visits. Similarly, while alleging that Reilly went out on customer visits with all of the other Account Administrators, she fails to corroborate that allegation with even a shred of detail or support. A plaintiff cannot simply reallege factually in her deposition the allegations made in her pleadings. Although Thompson refers to a notebook which apparently contains her notes as to which customers the other Account Administrators went out to visit, that notebook was never submitted to the Court and therefore cannot be relied upon as a support for Thompson's claim. As such, beyond her own allegations, Thompson has not provided a shred of factual corroboration to demonstrate that the other Account Administrators were treated any differently than she. The Court therefore finds that Thompson has failed to oppose the defendants' summary judgment motion with sufficient evidence to support a prima facie claim of race discrimination under the NJLAD and grants the defendants' motion as to the Second Count.
Furthermore, Account Administrator Denise Clemons was a Black female, apparently included among those accompanied by Reilly on customer visits. Such equal treatment of Ms. Clemons argues against any conclusion that any alleged unequal treatment of the plaintiff was racially motivated.
The Fourth Count
In the Fourth Count, Thompson alleges that, despite expressing both her interest and availability, she was denied the opportunity to work on "special projects." Again, the Court finds that, even after crediting her testimony, Thompson has failed to produce sufficient evidence to convince a reasonable factfinder that a similarly situated non-protected Account Administrator was treated any differently than she. [Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997).] First, although she alleges that she was denied the opportunity to work on any projects, Thompson admits in her deposition that she actually worked on at least two projects — the Sarprint and audit projects. (Thompson Dep. at 61-62). Second, in describing the special projects she believed other Account Administrators were working on, she stated that while two Account Administrators — Renee Rebhun and Robin Bertot — worked on more than one project, two other Account Administrators — Tracey Rule and Barbara Tobias — only worked on one project. Reilly corroborated Thompson's assessment of the "special projects" distribution, noting that "[a]lthough I do not recall what specific special projects I assigned to Ms. Thompson, I do recall that she worked on special projects with the same frequency as the majority of other Account Administrators." (Reilly Decl., ¶ 110). While the burden of establishing a prima facie case is not onerous, nor is it a mere formality which can be fulfilled solely by bald allegations.
Fed.R.Civ.P. 56(e) specifically states that "[s]upporting and opposing affidavits 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." Although Thompson submitted a copy of her deposition with her pleadings, and although that deposition contains several allegations as to how the other Account Administrators were treated, those allegations do not rise to the level of competent evidence.
Beyond Thompson's broad allegations, however, the record does reveal one incident which could satisfy the prima facie burden. This incident, ironically, was actually raised and addressed by the defendants. According to Reilly, the only special project for which Thompson expressed an interest was the "Goldmine" project. As to that project, though several Account Administrators had expressed their interest, Reilly ultimately chose Renee Rebhun because she was the then-current "Goldmine" coordinator and had already been trained on the "Goldmine" computer system. Similarly, although data input assistance was later required to complete the Goldmine project, Reilly assigned the work to a receptionist, Heather Lawrence, instead of Thompson, because she did not think data input was a task normally handled by Account Administrators.
At this stage, as the defendants have proffered a legitimate reason for not assigning Thompson to the Goldmine project, she bears the burden of raising a genuine issue of material fact as to whether the defendants' proffered reason was pretextual. Sheridan v. E.I. Dupont de Nemours Co., 100 F.3d 1061, 1067 (3d Cir. 1996) (en banc). As the Supreme Court noted:
[T]he plaintiff must point to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Although Thompson had an opportunity to offer evidence to contest the defendants' proffered reason in her answer to the defendants' summary judgment motion, none was so provided. Moreover, nothing in Thompson's deposition suggests any reason to disbelieve the employer's articulated reason or to believe that a discriminatory reason was more likely the motivation for the defendants' action. Accordingly, the Court finds that summary judgment is appropriate as to this count as a matter of law.
CONCLUSION
For the foregoing reasons, the Court grants the defendants' motion for summary judgment in its entirety; the Second and Fourth Counts of the Complaint are dismissed, with prejudice and with costs. With this decision, all claims in the Complaint have now been adjudicated.
O R D E R
For the reasons set forth in the Court's Opinion filed herewith,
It is on this day of January, 1999,
ORDERED that defendants' motion for summary judgment be, and it hereby is, granted in its entirety; and it is further
ORDERED that the Second and Fourth Counts of plaintiff's Complaint are dismissed, with prejudice and with costs.
____________________________ JOHN W. BISSELL United States District Judge
DATED: January 1999