DEBRA A. RUSSENBERGER v. BASF CORPORATION, et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-6493-02T26493-02T2

DEBRA A. RUSSENBERGER,

Plaintiff-Appellant,

v.

BASF CORPORATION; THOMAS Y.

ALLMAN, Individually and/or

as a servant, agent or employee

of BASF CORPORATION; DAVID F.

RYER, Individually and/or as

a servant, agent or employee

of BASF CORPORATION; and

HAROLD McDONALD, Individually

and/or as a servant, agent or

employee of BASF CORPORATION,

Defendants-Respondents.

________________________________________________________

 

Argued January 19, 2006 - Decided July 28, 2006

Before Judges Wecker, Fuentes and Graves.

On appeal from Superior Court of New Jersey,

Law Division, Union County, L-1023-01.

Debra A. Russenberger, appellant pro se.

Mary B. Rogers argued the cause for respondents

BASF Corporation, David F. Ryer, and Harold

McDonald (Pitney Hardin, attorneys; Ms. Rogers

and Amy Brown Castronovo, on the brief).

William F. Maderer argued the cause for respondent

Thomas Y. Allman (Saiber Schlesinger Satz &

Goldstein, attorneys).

PER CURIAM

Plaintiff Debra A. Russenberger alleged in her complaint that she was wrongfully discharged after six years of employment by BASF Corporation (BASF). The individual defendants are officers and managers at BASF. Plaintiff complained that while she was employed from 1994 to 2000, defendants violated the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, by discriminating against her and subjecting her to a hostile work environment on the basis of her gender. And that defendants terminated her employment in retaliation for making complaints concerning gender discrimination at BASF. Plaintiff also alleged that defendants breached an implied agreement that they would terminate her only for good cause.

Plaintiff appeals from an order dated May 23, 2003, granting summary judgment in favor of defendants and dismissing her complaint. After reviewing the evidentiary materials in the light most favorable to plaintiff, R. 4:46-2(c), we affirm the summary judgment order and the other orders that plaintiff appeals from, substantially for the reasons stated by the trial court.

Plaintiff began her employment with BASF in June 1994 as a legal assistant in the Litigation and Corporate Services Group, reporting to Thomas Y. Allman, Senior Vice-President and General Counsel of the Legal Department, with an annual salary of $52,500. Plaintiff's employment application, which she signed on May 13, 1994, states:

I understand that any employment resulting from this application will be employment at will unless I am covered by a written agreement to the contrary. This means that I will have the right to terminate my employment at any time with or without cause and the company may exercise the same right.

Her first assignment was coordinating the Legal Department's move from Parsippany to a new building in Mt. Olive. Allman acknowledged at his deposition that she "did an outstanding job." In December 1994, plaintiff was promoted to Senior Legal Assistant, and her salary was increased to $56,200. In January 1995, plaintiff received a Special Effort Award of $4,600 for extraordinary work in coordinating the move. She also received a merit increase in 1995, to $59,860.

After the move was completed, plaintiff assisted Allman with some of the administrative staff assignments, but when issues arose because of the interaction between plaintiff and some of the professional staff, Allman assigned her to a paralegal position in the Litigation Department. According to Allman, plaintiff "is a talented and opinionated person and is not shy about expressing her views and sometimes expresses them in a way that other people find to be abrasive."

In May 1996, plaintiff received a salary increase to $63,332.08, and in July 1996, she was assigned to report to Linda Terner, an attorney. On January 14, 1997, in a detailed and documented eight-page memorandum to Allman, Terner concluded that plaintiff's job performance was unacceptable. According to Terner, plaintiff failed to perform or complete assignments, delegated her work to another paralegal, made numerous mistakes, used illness as an excuse for inadequate production, was confrontational rather than cooperative, and responded to counseling with hostility and vulgarity. Terner's memorandum to Allman contained the following recommendations:

In connection with your request that I evaluate the performance of paralegals working in the commercial litigation area, I have prepared a draft evaluation of Debra's performance using the BASF Exempt PDR form, and a proposed [Performance] Improvement Plan ("PIP") letter, submitted together herewith. I would also recommend that she be counseled about performance standards with your direct involvement. Before I was asked to supervise Debra directly, I had a congenial personal and professional relationship with her. The counseling I have given her over the last few months has been intended to help her to improve her performance, but she has rejected most suggestions (with hostility and crude language), and indeed has rejected performance requirements. While she has performed two discrete assignments well, her primary assignments have been poorly completed, if at all, despite numerous reminders and discussions with her. I believe that she needs to understand from senior management that performance standards are expected to be met in a professional manner, and at the level commensurate with her job title and experience. I also recommend that a) her "lost time" be monitored, and that illness not be accepted for more than a short period without medical verification from someone other than her brother-in-law. Because of her defiant attitude, the excessive supervisory time required to deal with her, and her failure to respond to counseling and directives, it is recommended that a transfer out of the litigation group be considered. It is also recommended that she be referred to the Employee Assistance Program for voluntary participation.

As a result of Terner's recommendation, Allman placed plaintiff on a performance improvement plan (PIP), threatening termination if her performance remained unacceptable. The PIP memorandum, dated January 15, 1997, set forth ten specific requirements that plaintiff was to satisfy during the sixty-day PIP, which was described as "a final attempt for [plaintiff] to attain an acceptable level of performance." The last paragraph of the PIP, which appeared above plaintiff's signature acknowledging her receipt of the document, read as follows:

Should you fail to complete this performance improvement plan with an acceptable level of performance or, if at any time after successful completion your performance falls below the acceptable level, disciplinary action, up to, and including, termination will be taken. If during the 60 day performance plan, immediate and sustained corrections are not made in your performance, BASF Corporation reserves the right to end the plan and terminate your employment.

After she was placed on the PIP, plaintiff began reporting to Moira Brophy, Esq., Associate General Counsel. In a comprehensive seventeen-page memorandum to Allman dated February 25, 1997, Brophy noted that "while Debra has made improvements in some areas outlined in the P.I.P., many of the serious performance problems set forth in the P.I.P. remain uncorrected at this time."

Debra seems to be intellectually capable of handling paralegal work, but her undependability in either performing assignments or in doing so in a timely fashion is totally unacceptable, and Debra's resort to lying to cover up her conduct is intolerable in one whose job responsibilities impact the defense of the Company's litigation.

Debra's difficulties in working with co-workers - subordinates, peers, and supervisors - is also a problem. Debra's unwillingness to follow attorney instructions, or to share information freely with the supervising attorney and a fellow paralegal, and Debra's seeming inability to work with a secretary unsupervised without creating dissension, interfere with the teamwork necessary to get work properly performed. Debra's behavior also helps create an unpleasant work environment for others.

In March 1997, plaintiff was assigned to work on a policies and procedures project, reporting to Elizabeth Roman, who later became the Director of Human Resources. On October 2, 1997, David F. Ryer, Deputy General Counsel, advised plaintiff: "you have successfully completed the PIP you had been placed on. It is, of course, necessary for you to maintain satisfactory performance going forward, as stated in the PIP letter." In November 1997, plaintiff's salary was increased to $65,500.

Plaintiff's performance continued to improve in 1998 and 1999. In January 1998, Roman evaluated plaintiff's overall performance as good. In May 1998, plaintiff received a merit salary increase to $68,200.

In April 1999, plaintiff was promoted to Manager of Policies and Procedures, and her salary was increased to $73,000. Roman and Ryer both recommended plaintiff's promotion, and Allman approved it. In May 1999, plaintiff received a merit salary increase to $75,400. At the end of 1999, Ryer evaluated plaintiff's overall performance as very good--the highest possible rating. In May 2000, plaintiff's salary was increased to $79,100.

BASF maintained a "compliance hotline" for anonymous reporting of suspected legal or ethical violations. In April 2000, a hotline caller complained that plaintiff "creates a hostile work environment by yelling and screaming at employees and degrading them." Roman investigated the complaint and related that plaintiff denied screaming, but admitted that she may have been talking loudly on the telephone to someone outside the company. Roman also interviewed Cynthia Castro, plaintiff's administrative assistant, who said that plaintiff tended to speak loudly, but did not yell at or degrade her. Roman and Ryer admonished plaintiff "to be conscious of the perceptions of others in her surrounding work area."

During her deposition, Roman stated that when she supervised plaintiff from 1997 to 1999, there were no incidents of her yelling or screaming. Roman testified, however, that she had "many conversations" with plaintiff concerning her loud speech and many conversations "about her interaction with people."

In September 2000, Castro complained to Roman that plaintiff "would raise her voice at her," and that plaintiff called her stupid. On October 5, 2000, Bonnie Skillman, a payroll supervisor, reported to Human Services that she was upset about a telephone call she received from plaintiff regarding deductions from her paycheck. According to Roman, "Bonnie indicated that Debra yelled and made inaccurate statements. Bonnie indicated that she was concerned that Debra would call her again when future deductions are made and she did not want to be subjected to such treatment again." Later in October, Castro complained again about plaintiff's comments and behavior.

Roman discussed these complaints with Ryer, and they met with plaintiff on November 2, 2000, to discuss Castro's and Skillman's complaints. Plaintiff countered that Castro's performance was unsatisfactory and followed up with an e-mail on November 14 to Ryer explaining Castro's performance issues. Plaintiff does not dispute, however, that Ryer warned her on November 2, 2000, that if there were any more incidents of inappropriate behavior she would be terminated.

Plaintiff's employment at BASF was terminated by Ryer and Roman on December 8, 2000. The trial court explained the events leading up to plaintiff's termination as follows:

On December 7th, 2000, several employees in the legal department heard Russenberger screaming at Castro behind closed doors. Russenberger's coworkers reported that conduct to Allman so he could intervene. And the incident came to an end with the intervention [of] Mr. Allman, who went to the office and terminated the meeting with Castro. Castro was crying and shaken and was allowed to go home for the day.

[Ryer] and Roman conducted an investigation. They interviewed six employees, including Ms. Russenberger, and determined that Russenberger had failed to heed the final warning regarding unacceptable comments. And as a result, with Allman's approval, they terminated her employment on December the 8th.

Now going back a little bit in time, on September the 6th 2000, Mr. Oakley, who was the CEO, received an anonymous letter alleging discrimination against women and minority employees in the BASF legal department, and Oakley directed an independent investigation be taken by outside counsel. And that task was then assigned to Harold McDonald, the EVP of Human Resources, and he selected Rosemary Al[i]to, an employment attorney and a partner at McCarter and English, to conduct an investigation and prepare a report.

And during that investigation, BASF received a second anonymous letter which set forth additional allegations of discrimination in the legal department and complained of an unidentified, disruptive, almost violent and unprofessional employee in the legal department. Al[i]to's investigation was expanded to address the discrimination allegations raised in the second letter.

On the basis of Al[i]to's investigation, without attribution to any employee interview, Al[i]to told McDonald that Russenberger was possibly the unidentified, nearly violent employee in the second letter. Al[i]to had complete autonomy in the conduct of her investigation. Employees were assured that the interviews would be confidential to the greatest extent possible. And it appears that Al[i]to interviewed 39 employees in private.

The record reflects that Al[i]to never discussed the content of her interview with anyone at BASF, nor did she disclose her interview summaries with anyone. Neither [Ryer] nor Allman knew that Russenberger volunteered to be interviewed. Roman was privy to the interview schedule, but she did not know whether Russenberger actually had been interviewed [by Alito] or what she . . . may have told Al[i]to.

. . . .

And Al[i]to testified she never disclosed the contents of her interviews to anyone at BASF.

Based on our review of the record and applicable law, we are satisfied that the trial court did not err in granting summary judgment in favor of defendants. As noted by the trial court, defendants advanced several legitimate, nondiscriminatory reasons for terminating plaintiff's employment:

[T]he record demonstrates that her termination was precipitated by the following events: 1) On April 19th 2000, the anonymous caller; 2) the investigation that Roman did; 3) the September 28th 2000 incident with Ms. Castro complaining; 4) the October 9th 2000 complaint from the benefits office from Ms. Skillman; 5) the October 31st complaint again from Ms. Castro; 6) the November 2nd warning; 7) the problem where there is the incident that precipitated the actual termination.

Ms. Al[i]to's report was given to BASF on December 19th. So that also militates against a finding of an inference of a causal connection. Even if Ms. Russenberger did establish the finding of a prima facie case, BASF proffered the nondiscriminatory reason. And as I said above, plaintiff has to point to some evidence that shows that a reasonable fact finder would disbelieve that articulated reasons, or believe that it's more likely than not that there was invidious discrimination [or retaliation]. And given the eight factors here, I don't find that to be the case.

We agree that plaintiff failed to raise a genuine factual dispute by discrediting defendants' legitimate reasons for her termination. See Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) ("[A] plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination [or retaliation] was more likely than not a motivating or determinative cause of the adverse employment action.").

The record amply supports the trial court's determination that no reasonable juror could conclude that defendant's employment was wrongfully terminated. R. 2:11-3(e)(1)(E). We therefore affirm substantially for the reasons stated by Judge Lyons in his comprehensive oral decision on May 23, 2003. Affirmed.

 

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A-6493-02T2

July 28, 2006