RHODA ANDERSON v. V. AT&T, LUCENT TECHNOLOGIES, INC., et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-7132-03T27132-03T2

RHODA ANDERSON,

Plaintiff-Appellant,

V.

AT&T, LUCENT TECHNOLOGIES,

INC., and PAMELA CRAVEN,

in her official and

individual capacities,

Defendants-Respondents.

_____________________________

 

Argued October 30, 2006 - Decided December 7, 2006

Before Judges Lintner, S.L. Reisner

and Seltzer.

On appeal from the Superior Court of

New Jersey, Law Division, Union County,

L-4281-01.

Kevin M. Kiernan argued the cause for appellant (Kiernan & Campbell, attorneys; Mr. Kiernan and Loretta A. Castrovinci,

on the brief).

Francis X. Dee argued the cause for respondents (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Dee, of counsel and on the brief; David J. Reilly, on the brief).

PER CURIAM

Plaintiff, Rhoda Anderson, appeals from the dismissal on summary judgment of her complaint charging defendants, Lucent Technologies, Inc., AT&T and Pamela Craven, with handicap discrimination under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and breach of an implied employment contract. We affirm the dismissal of her discrimination claim but reverse and remand for trial on her breach of contract claim.

I

These are the most pertinent facts. Plaintiff was a "C level" manager at AT&T, specializing in providing support for the corporate secretary department. Plaintiff contracted Lyme disease in 1992. She also developed chronic fatigue syndrome which continued to affect her and, as a result, needed to work at home from time to time. AT&T accommodated her handicap by permitting her to telecommute when she needed to. In 1996, Lucent Technologies was "spun off" from AT&T. In connection with the transformation of Lucent into an independent corporation, Lucent looked to AT&T for assistance in creating its own corporate secretary department.

According to plaintiff, Robert Schrenker, her supervisor at AT&T, recommended her to Lucent because of her expertise, and the head of Lucent's corporate secretary department, Pamela Craven, lured her from AT&T to Lucent with a promise of a promotion to a "D level" position and job security. According to plaintiff's deposition testimony, when she met with Craven to discuss the job, she told Craven that she "was concerned about some job security, because I was in a very secure position at AT&T and I needed to be secure in this move." According to plaintiff, Craven replied "[y]ou know I can't give you a promise, but I can tell you that corporate secretary work is only done in one place in a company, and it's always necessary." Then, according to plaintiff, came the following exchange: "And so I said, so, you're saying as long as I can do the work, I would have a job. And she said yes."

At her deposition, plaintiff also testified that she told Craven that she had had some "health problems" but that she and her supervisor had "worked it out so it didn't really affect the job." Craven replied, "[w]ell, we'll do the same, don't worry about it."

However, plaintiff claimed that after she transferred to Lucent in January of 1996, her Lyme disease and fatigue syndrome worsened and she was forced to work at home frequently. According to plaintiff, Craven expressed hostility to the idea of employees telecommuting or working from home, and Craven complained repeatedly that she could not find plaintiff at times when she needed to speak to her. According to plaintiff, Craven knew that she sometimes worked from home, but Craven refused to call plaintiff at home to talk to her.

On May 22, 1998, Craven called plaintiff into a conference room and told plaintiff that her job was being eliminated. Plaintiff contends that Craven engineered her termination because Craven resented plaintiff's periodic need to work at home due to her chronic fatigue syndrome. Plaintiff asserted that Craven terminated her in order to avoid having to continue to accommodate her handicap. In support of this claim she cited Craven's periodic comments and complaints concerning plaintiff's need to spend more time in the office. Plaintiff also claimed that her termination violated Craven's promise that she would have a job as long as she could do the work.

According to Craven, plaintiff was terminated because her job was eliminated for efficiency reasons and her former tasks were distributed among other employees. In her deposition, Craven answered "[n]o" when asked whether plaintiff's termination "in any way related to po[o]r job performance." Craven also testified that there were other employees in her group who were permitted to telecommute.

According to Craven, she rated plaintiff as "effective" in her 1996 and 1997 evaluations, but told her that she needed "to more actively supervise and take a leadership role with her people. That doesn't necessarily require that the person be physically present." Rather, according to Craven, the issue was that plaintiff's subordinates were missing deadlines and in some cases turning in work that was not of the quality Craven expected. Hence, she suggested that plaintiff supervise her employees more closely. She also testified that she at times had difficulty in contacting both plaintiff and plaintiff's subordinates. Craven admitted that she also suggested that plaintiff limit the number of outside organizations she participated in.

There is a factual dispute as to what discussions plaintiff had with Schrenker and with Craven concerning her need for accommodation, prior to agreeing to transfer to Lucent. According to plaintiff, she told Schrenker about her continuing need for accommodation, her concern with whether Lucent would accommodate her, and her concerns about job security. She assumed that Schrenker had relayed these concerns to Craven. She also claimed she had a similar, but more general discussion with Craven. At his deposition, Schrenker denied telling Craven that plaintiff would need ongoing accommodations. Craven denied discussing the issue of plaintiff's health with Schrenker but admitted discussing the issue with plaintiff and with Marilyn Wasser, AT&T's corporate secretary. Craven also admitted that plaintiff told her about her health problems when plaintiff began working at Lucent. Craven denied knowing that plaintiff routinely worked at home due to illness or that plaintiff told her that she was working at home due to any ongoing health condition or that plaintiff expressed a need to do so. But Janice Nutt, who had worked with both plaintiff and Craven, confirmed that plaintiff sometimes told Nutt that she was working at home due to fatigue associated with Lyme disease.

Plaintiff contended that, in terminating her, Lucent failed to follow its policies concerning reductions in force, thus demonstrating that Lucent's explanation for her termination was pretextual. There is no evidence in the record that Lucent was generally laying off employees at the time plaintiff was terminated, and Lucent did not claim that was the case. Rather, according to Craven, plaintiff was terminated as part of a restructuring of Craven's work group, and she was given certain termination-related benefits because Craven was able to have the termination characterized within the company as a force reduction.

According to Craven, her supervisor asked her to look for efficiencies within her organization. In response, she made a proposal, which her superiors approved, to merge the corporate secretary department into the corporate law department. In connection with that change, she eliminated certain functions that plaintiff had performed herself and transferred several of plaintiff's subordinates into a group supervised by the managing corporate counsel, Michael Holliday. Another employee, Ann Dochod, who specialized in records management, was transferred out of Craven's group into the real estate department.

The depositions of Janice Nutt and Craven support Lucent's contention that Craven eliminated plaintiff's director position and continued the functions of Craven's operation with one less high-level manager. In August 1997, Craven had upgraded plaintiff's subordinates, Janet O'Rourke and Janice Nutt, to district or senior manager positions. Plaintiff had recommended the promotions for O'Rourke and Nutt. After plaintiff's termination, Craven had these managers report to Holliday on some matters and to Craven herself on other matters. There is no evidence in the record that Craven, or Lucent, retained plaintiff's D-level manager position and gave it to someone else.

There is also some evidence that Craven initiated other cost savings, such as eliminating the use of a consultant and requiring Janice Nutt to take over his functions. Nutt also testified that after plaintiff left, her former subordinates attended fewer meetings outside the company and often had to pay for their own attendance. There also appears to be no dispute that, prior to plaintiff's termination, Craven directed her subordinates that the company would not pay for a party for employees after the annual shareholder meeting, in order to save money.

II

The motion judge found that plaintiff presented a prima facie case under the LAD. The judge also concluded that defendants presented a non-discriminatory reason for her termination. He concluded that plaintiff had not proven pretext or anti-handicap animus, because plaintiff's only proofs of such animus were Craven's complaints that plaintiff was absent from the office too often and not available to supervise her subordinates, and that in itself is a legitimate employer concern. He also concluded that there was no evidence that Craven promised plaintiff job security, because plaintiff admitted Craven told her she could not make such a promise.

III

Our review of a trial court's decision to grant summary judgment is de novo, using the Brill standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div.), certif. denied, 154 N.J. 608 (1998); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 539-42 (1995). Accordingly, we must determine whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational fact finder to resolve the disputed issues in favor of the non-moving party, or whether "the evidence 'is so one-sided that one party must prevail as a matter of law.'" Brill, supra, 142 N.J. at 540 (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S. Ct. 2505, 2512, 91 L. Ed. 2d 202, 214 (1986)).

Having thoroughly read the record, including all of the materials that were presented to the trial court on the summary judgment motion, we conclude that summary judgment was properly granted on the handicap discrimination claim but not on the contract claim.

We agree with the motion judge that plaintiff presented a prima facie case of handicap discrimination. Even if she did not present proof that she actually suffered from a handicap at the time she transferred to Lucent, the record would support a reasonable inference that defendants regarded her as handicapped. See Rogers v. Campbell Foundry, Co., 185 N.J. Super. 109 (App. Div.), certif. denied, 91 N.J. 529 (1982). Plaintiff's AT&T supervisor, Robert Schrenker, told Craven "about Rhoda's health problems" including chronic fatigue syndrome and Lyme disease. Craven also admitted that plaintiff told her she had Lyme disease. Apart from questioning whether plaintiff established her handicap, defendant does not contest that plaintiff presented a prima facie case.

The critical issue in this case is whether Craven eliminated plaintiff's position for the legitimate business reasons to which she testified, or because of discriminatory animus against plaintiff based on the need to accommodate her handicap. Hence we must inquire whether plaintiff presented sufficient evidence that the employer's reason for terminating her employment was a pretext for discrimination. Plaintiff's burden on that issue was recently restated in Zive v. Stanley Roberts, Inc., 182 N.J. 436 (2005):

[I]f the employer proffers a non-discriminatory reason, plaintiff does not qualify for a jury trial unless he or she can "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."

[Id. at 455-56 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)).]

In that connection, "the 'plaintiff need not prove that [her membership in a protected class] was the sole or exclusive consideration' in the determination to discharge [her]; rather, [she] need only show 'by a preponderance of the evidence that it made a difference' in that decision." Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999) (quoting Murray v. Newark Hous. Auth., 311 N.J. Super. 163, 174 (Law Div. 1998).

In this case, the evidence on which plaintiff relies does not suffice to show pretext. Plaintiff relies heavily on statements contained in her 1996 and 1997 job evaluations, which Craven prepared. Craven's statements, however, cannot fairly be construed as evidence of discriminatory intent. Rather, her evaluations reflect a legitimate concern for plaintiff's presence in the work place, as well as the availability of plaintiff's subordinates.

Craven's contemporaneous notes, prepared in anticipation of a meeting with plaintiff to discuss her November 6, 1997 job evaluation, refer to Craven's "difficulty finding you/or your people & they are not always effective at moving forward when you are not around." The notes also refer to the need for "[c]overage during absences," the need for "more 'handson' [management]," and the need for plaintiff "to be here leading your group." The evaluation itself refers to the need for plaintiff to "be more selective" in her "meeting/travel schedule," and to "spend more time directly overseeing/observing what is happening in your group and lending your hands-on expertise." Plaintiff's February 1997 evaluation also reflected Craven's concern about "coverage" and the fact that "[t]here have been times when it has been difficult to locate your people to track down status of a matter or get a question answered."

In her deposition, plaintiff testified that on at least eighty occasions, Craven had expressed a concern to her about being unable to reach plaintiff or one of her staff members. According to plaintiff, on twenty to thirty of those occasions plaintiff had been working at home due to fatigue or illness. While plaintiff contended that Craven was unwilling to call her if she was out of the office, nowhere in plaintiff's deposition did she testify that she ever contacted Craven's office on these occasions and left word for Craven to call her at home. Further, she did not produce any evidence that Craven was unreasonable in her concern about being unable to contact plaintiff or her subordinates on the other fifty to sixty occasions.

Plaintiff also contends that the record shows that Craven's reason for terminating her was pretextual, because Craven actually hired additional employees and did not follow Lucent's procedures for restructuring to achieve cost savings. First, the record does not support plaintiff's assertion that additional employees were hired to perform the functions carried out by plaintiff and her group. We also conclude that plaintiff has mischaracterized her termination as a reduction in force. Defendants did not claim that Lucent was engaging in a typical downsizing or reduction in force. Rather, they presented evidence that the company merged two units to be more efficient. This defense did not require proof that the company was in economic difficulty or that it needed to downsize. Consequently, plaintiff's argument that Lucent did not follow its Force Management Policy is essentially an exercise in setting up and then knocking down a straw man.

We likewise find no merit in plaintiff's contention that defendant shifted its explanation for terminating plaintiff. Defendant simply responded to plaintiff's contention that she was terminated due to concerns about her absence from the work place, by contending that even if that were the case such concerns would be legitimate and not discriminatory.

To summarize, we conclude that even giving plaintiff the benefit of all favorable inferences from the motion record, no reasonable jury could conclude that plaintiff's termination was the result of handicap discrimination in violation of the LAD. Therefore we affirm the dismissal of her discrimination claims against all of the defendants.

We reach a different conclusion, however, with respect to plaintiff's breach of contract claim against Lucent. According to plaintiff, she made the transfer to Lucent based on her understanding that Craven understood her medical condition and would accommodate her need to work from home, the way AT&T had done. Although the record does not establish that Craven knew precisely what accommodations plaintiff received at AT&T, it is readily inferable that Craven knew plaintiff suffered from Lyme disease and chronic fatigue syndrome. According to plaintiff, she told Craven of her concern for job security, an understandable issue for plaintiff, who was in her early fifties, had health problems, and had worked at AT&T for most of her career. Based on the evidence, reasonable jurors could conclude that Craven well understood the importance to plaintiff of job security and the considerable difficulties plaintiff might face in the job market should she lose her employment with Lucent. A jury could also conclude that Craven was determined nonetheless to win over a potential employee whose expertise she needed to set up Lucent's corporate secretary department.

It is in this context that we consider exactly what plaintiff alleges transpired in her conversation with Craven. According to plaintiff, Craven told her that there would always be a need for the kind of work plaintiff did, although she could not "make any promises" in response to plaintiff's concern for job security. But, according to plaintiff, in the proverbial next breath Craven proceeded to make just such a promise. Plaintiff testified that she asked Craven, "And so I said, so, you're saying as long as I can do the work, I would have a job. And she said yes."

An employment contract may be based upon an oral promise, Shebar v. Sanyo Bus. Sys. Corp., 111 N.J. 276, 287-88 (1988), and "[w]hether the parties acted in a manner sufficient to create implied contractual terms is a question of fact generally precluding summary judgment." Troy v. Rutgers, 168 N.J. 354, 366 (2001). This case is not as strong as Shebar, in which plaintiff's employer tore up his resignation letter and promised him that he would have a job for life. Shebar, supra, 111 N.J. at 282. We conclude, however, that a reasonable jury could find that Craven's agreement that as long as plaintiff could do the work, she would have a job, amounted to a promise that if plaintiff accepted Lucent's offer of employment she would not be terminated except for cause. They could also find that plaintiff relied on that promise in giving up her secure position at AT&T. See id. at 289-90. And since Craven testified at her deposition that plaintiff's termination had nothing to do with poor job performance, reasonable jurors could conclude that plaintiff was not fired for cause. We do not, of course, intimate any view as to whether a jury will so conclude. We only hold that plaintiff is entitled to a trial on her contract claim against Lucent.

Accordingly, we affirm the dismissal of plaintiff's complaint against AT&T and Craven and the dismissal of her LAD claim against Lucent. We reverse the dismissal of her contract claim against Lucent and remand that claim for trial.

 

Plaintiff's contention that "Craven has admitted that she had restructured employees' positions in the past in order to get rid of people" is also not supported by the record.

Although plaintiff's handicap discrimination claim was properly dismissed, her health condition is relevant to her contract claim, because it would establish a motive for plaintiff to have insisted on some assurance of job security.

(continued)

(continued)

16

A-7132-03T2

 

December 7, 2006