AARON REDDICK v. AT&T CORP.

(NOTE: The status of this decision is published.)
 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-1349-06T21349-06T2

AARON REDDICK,

Plaintiff-Appellant,

v.

AT&T CORP.,

Defendant-Respondent,

and

JEFFREY GORBACH, and

as an employee of AT&T;

CHRISTINA SINAI, and as an

employee of AT&T; DAWN MCGOVERN,

individually and as an employee

of AT&T; TOM ERDMAN, GARY NOVAK,

individually and as an employee of

AT&T; VIVIAN GONZALEZ, individually

and as an employee of AT&T;

PAT KRUGE, individually and

as an employee of AT&T; DON

CUMMINGS; AND MET LIFE,

Defendants.

______________________________

 

Submitted October 22, 2007 - Decided

Before Judges Weissbard, S.L. Reisner and Gilroy.

On appeal from the Superior Court of New Jersey, Law Division, Somerset County, Somerset County, L-0330-03.

David A. Krenkel, attorney for appellant.

Day Pitney, attorneys for respondent (Theresa A. Kelly, of counsel and on the brief; Kristine J. Feher, on the brief).

PER CURIAM

Plaintiff Aaron Reddick appeals from trial court orders dated March 11, 2005, March 22, 2005, and September 21, 2006, which dismissed his complaint against defendant AT&T and several individual defendants employed by AT&T, and denied his motion for reconsideration. We affirm.

I

Reddick, who is African-American, began working for AT&T in 1984. In 1998, he was promoted into a managerial position as Results Manager. Thereafter, he was promoted several times and, at his request, was transferred several times to different areas within the company. However, the undisputed record discloses that in all of those assignments, he had work performance and disciplinary problems.

Those problems included complaints from co-workers as well as managers. For example, in November 1998, plaintiff sent inappropriate sexual e-mails to a female co-worker, resulting in his eventually apologizing to the co-worker and to management. In 2001, another co-worker complained that she felt threatened and offended when plaintiff sent her an e-mail berating her for responding to a request that plaintiff believed should have been forwarded to him. Plaintiff apologized for his "indiscretion."

AT&T also documented repeated problems with plaintiff's work performance in each of his assignments, and plaintiff's resistance to accepting his supervisor's criticisms. For example, when one of his supervisors, Mr. Erdman, criticized plaintiff for failing to submit a report on time, plaintiff complained that Erdman should have requested the report by e-mail rather than by leaving plaintiff a voicemail message, because plaintiff preferred to communicate by e-mail. Erdman reminded plaintiff that Erdman was frequently out of the office on the road and did not have access to a computer, and that plaintiff was expected to check his voicemail. AT&T also documented additional instances of insubordination, as when plaintiff failed to complete a report as directed by his manager and instead left on vacation.

After receiving an unfavorable performance review in March 2002, plaintiff filed an internal complaint alleging race discrimination. After AT&T began investigating the complaint, plaintiff went on medical leave due to a claimed mental disability. When he failed to return to work after a year's absence, he was terminated in May 2003 pursuant to AT&T's company policy concerning employee leaves of absence.

Plaintiff served defendants with an amended complaint in June 2003. Count One of the complaint alleged racial discrimination in violation of the Law Against Discrimination (LAD) and reprisal for complaining about "defendants' activities, which are against the public Policy of this State." Plaintiff contended that AT&T gave him inadequate support and otherwise undermined his efforts to perform his job in a satisfactory manner, that AT&T tolerated substandard work performance from white employees while holding plaintiff to a higher standard, that plaintiff was punished for refusing to inflate sales revenue results, that white employees were given salary increases while plaintiff was not, and that he was otherwise treated unfairly while employed at AT&T.

Count Two alleged that the facts recited in Count One also breached "the implied covenant of good faith and fair dealing." Count Three alleged that those facts also constituted "the tort of intentional and reckless infliction of emotional distress" and "violation of plaintiffs' New Jersey Constitutional rights." Notably, none of the counts in the amended complaint alleged that plaintiff's termination was unlawful. Rather, plaintiff contended that he was treated in an unfair, discriminatory and retaliatory manner while he was employed at AT&T.

Defendants moved for summary judgment on January 25, 2005. In a written opinion issued March 11, 2005, the trial judge considered defendants' contentions that plaintiff could not establish a prima facie case of discrimination because "he was not performing his job in a manner that met his employer's legitimate expectations," that defendants "had legitimate, non-discriminatory reasons for each employment action taken with respect to plaintiff," and that "[p]laintiff cannot demonstrate pretext." Although it was not specifically pled in the complaint, the judge acknowledged that plaintiff was alleging that his termination was discriminatory.

The judge concluded that plaintiff had not established a prima facie case of discrimination under the LAD. While he proved that he was African-American and therefore in a protected class, and that he suffered an adverse employment action in that he was terminated while out on disability leave, plaintiff "failed to meet the second prong, by demonstrating that he was performing his job at a level that met his employer's legitimate expectations." The judge also concluded that defendant had not provided proof that similarly situated white employees were treated more favorably than he was. Addressing the reprisal complaint, the judge also concluded that plaintiff had not demonstrated that persons who did not complain about discrimination were treated more favorably than plaintiff.

Defendant sets forth many instances of behavior by Plaintiff [which] did not meet the expectations of AT&T. For instance, Defendant points out that five different managers who supervised Plaintiff during the course of his employment raised concerns with regards to Plaintiff's performance and conduct problems. Plaintiff fails to meet his burden of demonstrating that he met his employer's legitimate expectations. Plaintiff has failed to meet the fourth prong. Specifically he has failed to demonstrate that others outside the protected class were treated more favorably. Plaintiff makes blanket statements that white employees and non-complainers were treated more favorably, but does not offer any specific examples. This is insufficient to meet Plaintiff's burden on this issue.

By order dated March 22, 2005, the judge denied plaintiff's motion for reconsideration. By order dated September 21, 2006, the judge denied a motion plaintiff filed in July 2006 again seeking reconsideration of the dismissal of his LAD claims.

II

On this appeal, plaintiff raises the following contentions

POINT I: THE TRIAL COURT ERRED IN GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AS TO APPELLANT'S CLAIMS UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1, ET SEQ., BECAUSE IT IMPROPERLY REQUIRED THE APPELLANT TO DEMONSTRATE THAT HE WAS PERFORMING HIS JOB AT A LEVEL THAT MET HIS EMPLOYER'S EXPECTATIONS, A BURDEN NOT REQUIRED OF APPELLANT IN SETTING FORTH A PRIMA FACIE CASE PURSUANT TO THE NEW JERSEY SUPREME COURT'S HOLDING IN ZIVE V. STANLEY ROBERTS, INC., 182 N.J. 436 (2005).

POINT II: THE TRIAL COURT ERRED IN GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AS TO APPELLANT'S CLAIMS UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1, ET SEQ., BECAUSE THERE ARE GENUINE ISSUES OF MATERIAL FACT AS TO WHETHER PERSONS OUTSIDE APPELLANT'S PROTECTED CLASS WERE TREATED MORE FAVORABLY THAN APPELLANT.

POINT III: THE TRIAL COURT ERRED IN GRANTING RESPONDENT'S MOTION FOR SUMMARY JUDGMENT AS TO APPELLANT'S CLAIMS UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1, ET SEQ. BECAUSE IT NEVER RULED ON APPELLANT'S CLAIMS FOR RETALIATION AND HOSTILE WORK ENVIRONMENT.

POINT IV: THE TRIAL COURT ERRED IN DENYING APPELLANT'S MOTION FOR RECONSIDERATION AS TO THE DISMISSAL OF HIS CLAIMS SET FORTH UNDER THE NEW JERSEY LAW AGAINST DISCRIMINATION, N.J.S.A. 10:5-1, ET SEQ.

Having reviewed the record, we conclude that, except as discussed below, all of defendant's appellate arguments are without sufficient merit to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E).

Our review of a trial court's grant of 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, 540 (1995). Employing that standard, we conclude that there were no material facts in dispute and that summary judgment was properly granted. We differ somewhat with the trial court's reasoning, although our disagreement does not change the outcome.

As plaintiff properly points out, the trial court misstated the standard for a prima facie case under the LAD, by characterizing the plaintiff's burden as establishing that he was performing his job in a manner that met his employer's expectations. As the Supreme Court held in Zive v. Stanley Roberts, Inc., 182 N.J. 436 (2005), to establish a prima facie case of discrimination, a plaintiff need only "produce evidence showing that [he] was actually performing the job prior to the termination." Id. at 454. The focus on the quality of plaintiff's job performance comes later, in considering the employer's evidence of legitimate non-discriminatory reasons for its actions, and in considering whether plaintiff can prove that the employer's reasons are a pretext for discrimination. Id. at 455-56.

However, we conclude that the trial judge still reached the correct result in granting summary judgment. First, in this case, plaintiff was not performing his job at all when he was terminated. He was out on disability leave and failed to return after one year. According to defendant's evidence, plaintiff was terminated in accordance with AT&T's policy of letting employees go after one year if they did not return to work. Plaintiff did not produce evidence that any white employee, or any non-complaining employee, was permitted to stay out on leave longer than one year without being terminated.

Further, with respect to plaintiff's claims of on-the-job discrimination and reprisal, the judge correctly concluded that plaintiff did not produce evidence that similarly-situated persons not belonging to plaintiff's protected classes (African-American and/or having complained about discrimination) were treated more favorably than plaintiff was. Although plaintiff claims that other employees were paid more than he was, he did not produce evidence that they had the same or comparable job responsibilities. See Grigoletti v. Ortho Pharma. Corp., 118 N.J. 89, 109-10 (1990).

Plaintiff likewise failed to produce legally competent evidence to rebut defendant AT&T's evidence that it had legitimate non-discriminatory reasons for all of the negative treatment of which plaintiff complained. Consequently, even if plaintiff established a prima facie case of discrimination, he failed to produce evidence that the employer's legitimate non-discriminatory explanations were a pretext for discrimination. See Zive, supra, 182 N.J. at 449. At best, plaintiff's evidence shows that he had sincere, strongly held views about how his job duties should be performed, and his views clashed with his supervisors' equally strong views about how the job should be performed. There is no evidence that his supervisors were motivated by discriminatory or retaliatory animus. Therefore, as a matter of law, defendants were entitled to summary judgment dismissing plaintiff's LAD claims. Id. at 455-56; Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994); El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 173-74 (App. Div. 2005).

Affirmed.

 

The trial court dismissed plaintiff's entire complaint including claims based on the Law Against Discrimination, violation of public policy, the covenant of good faith and fair dealing, intentional infliction of emotional distress, defamation and invasion of privacy. The court dismissed LAD claims arising prior to June 2001 as beyond the statute of limitations and dismissed the remaining LAD claims on the merits. However, plaintiff has only briefed issues relating to the merits of his LAD claims. He also has not pursued his appeal of the court's September 21, 2006 order dismissing non-LAD claims. His non-LAD claims, and his LAD claims arising from events prior to June 2001, are thus waived and we will not address them further.

(continued)

(continued)

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A-1349-06T2

November 15, 2007