PRABHAKAR K. VICHARE v. PRUDENTIAL FINANCIAL, INC., THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, and PRISCILLA MYERS et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-3056-05T53056-05T5

PRABHAKAR K. VICHARE,

Plaintiff-Appellant,

v.

PRUDENTIAL FINANCIAL, INC.,

THE PRUDENTIAL INSURANCE COMPANY

OF AMERICA, and PRISCILLA MYERS

and WILLIAM FRIEL, individually,

Defendants-Respondents,

________________________________________________________________

 

Argued October 3, 2007 - Decided

Before Judges Wefing, Parker and Lyons.

On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5007 03.

John H. Norton argued the cause for appellant (Alpert, Goldberg, Butler, Norton & Weiss, attorneys; Mr. Norton, of counsel; Clark E. Alpert, of counsel and on the brief; Ben-David Seligman and Nicholas D. Bliablias, on the brief).

John J. Peirano argued the cause for respondent (McElroy, Deutsch, Mulvaney & Carpenter, attorneys; Mr. Peirano, of counsel and on the brief; Paula M. Castaldo and Danielle G. Miele, on the brief).

PER CURIAM

Plaintiff Prabhakar K. Vichare appeals from an interlocutory discovery order entered on November 17, 2005; an order entered on December 2, 2005 granting summary judgment in favor of defendants dismissing the complaint in its entirety; and an order entered on February 3, 2006 denying plaintiff's motion for reconsideration. We affirm.

The following is a summary of the facts giving rise to this claim for violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Plaintiff is a United States citizen of Indian origin. In 1996, he was hired by Prudential Insurance Company of America (Prudential) as a Vice-President of the Operations & Systems Unit (O&S). Plaintiff alleged that he was demoted, denied promotions and eventually terminated in 2002 on the basis of three types of discrimination: retaliation for filing a discrimination action against a prior employer; discrimination based on the interrelated factors of race, national origin, ancestry and color; and discrimination based on disability (heart condition).

Plaintiff brought the action against Prudential, Priscilla Myers and William Friel, both senior executives with Prudential (collectively defendants), alleging violations of the LAD, intentional infliction of emotional distress, and various contractual and quasi-contractual violations.

Plaintiff claims that he was initially hired as a departmental vice-president (DVP), a higher level than an O&S vice-president, which is a functional vice-president (FVP) position. He acknowledged, however, that his written offer of employment listed his position as vice-president of O&S and that he never received any written documentation indicating that he was to be hired as a DVP.

Two weeks after he was hired, plaintiff was transferred from O&S to the Audit, Compliance and Investigations Division (ACI), where he was supervised by defendant Priscilla Myers. Myers was familiar with plaintiff because she had interviewed him and made the final decision to hire him. The transfer did not affect plaintiff's job level or salary. Plaintiff claimed that on June 13, six months after he was hired, he learned for the first time that he was "demoted" from a DVP position. He assumed that the "demotion" was based in part on his national origin, although he acknowledged that he had no basis for that assumption, nor were there any statements or documents to corroborate it. Moreover, all of the documentation relating to plaintiff's hiring indicated that he was hired as an FVP and that his salary and bonuses were consistent with that of an FVP.

In March 1998, Myers advised plaintiff that she learned he had "brought a civil rights/discrimination lawsuit against his prior employer, AMBAC." Plaintiff claimed that Myers angrily told him that "Prudential did not tolerate employees asserting their rights in this fashion." Plaintiff alleges that Myers demanded details about the prior lawsuit, which he provided. Thereafter, plaintiff claimed that Myers' "demeanor was so hostile" that he thought he would be fired. He maintained that she told him they were "trying to figure out what we're going to do with [him]."

Myers acknowledged that she was concerned about plaintiff continuing in ACI because of allegations that he had received kickbacks while employed by AMBAC. Those allegations would create a conflict of interest because of ACI's function. Myers decided to transfer plaintiff to another department, explaining that plaintiff had only been scheduled to work in ACI for twelve to eighteen months before moving to O&S.

Defendant William Friel agreed to have plaintiff transferred to his department even though he was informed by Myers and Dennis Kinsig, another Prudential employee, that plaintiff's arrogant management style had caused problems within ACI. Kinsig was also aware that plaintiff had lied on his employment application by stating that he had left AMBAC because of a reorganization, rather than because he had been fired. Nevertheless, Friel believed that plaintiff possessed the necessary skills to fill a leadership position in corporate information technology (CIT), a department within O&S, because the position involved few direct reports, thereby alleviating management style issues.

In March 1998, plaintiff was transferred to CIT as an FVP of information systems. He claimed that the transfer was in retaliation for his employment discrimination suit against AMBAC and because Myers disliked people of Indian national origin. He admitted, however, that he had never heard Myers express any racially insensitive comments and that Myers was more concerned about AMBAC's counterclaim alleging that plaintiff had taken kickbacks. Plaintiff considered the transfer a demotion because he believed that the CIT position had less prestige, responsibility and a lower reporting level. His job level, salary and benefits remained unchanged, however. In fact, plaintiff's salary increased each year as follows:

1997 $150,000 salary and $30,000 bonus;

1998 $155,250 salary and $57,275 bonus;

1999 $164,000 salary and $65,000 bonus;

2000 $174,000 salary and $70,000 bonus;

2001 $189,000 salary and $78,000 bonus;

2002 $189,600 salary and $79,000 bonus,

plus $35,000 in stock options.

In the CIT position, plaintiff reported directly to Peter Lacovara, a DVP of information systems. Lacovara reported directly to Friel, who was responsible for all systems, including CIT, corporate technology services (CTS) and PruAmerica, an offshore IT facility. Plaintiff claimed that Friel was "notorious at Prudential for disliking Indians," and the transfer to "a position under Friel's supervision was to further punish [him]." Plaintiff admitted, however, that he never heard Friel or any other Prudential employee make racially offensive remarks. Plaintiff claimed that Friel exhibited racial bias by not meeting with him and avoiding direct contact with him, albeit he acknowledged he did not report to Friel. He alleged that Friel changed procedures so that plaintiff would report to Lacovara rather than to Friel.

In late 1999, Prudential considered outsourcing its software development to a foreign country. Plaintiff believed that India should have been the leading candidate for such outsourcing and claimed, without any supporting evidence, that Friel had "relied on studies that gave factually inaccurate information about India, and deliberately delayed other analyses so as to avoid making a decision to use India." Friel testified in his deposition, however, that Prudential had been "buying services and skills from existing Indian companies for about ten years," and that he had considered outsourcing to India, which he described as a "known quantity." Ultimately, Friel chose Ireland for Prudential's first offshore IT subsidiary and hired Paul Carmody, a DVP, as managing director. Friel selected Carmody from the pool of eligible DVPs because he had been working on overseas activities within Prudential. Friel did not consider plaintiff for the position because plaintiff was not a DVP, had not applied for the job, did not have the requisite overseas experience at Prudential and had not otherwise shown any interest in the position. Plaintiff contends, again without any supporting evidence, that Friel should have chosen him because he "would have been the best candidate to head this facility."

According to plaintiff, in December 2000, Pat Komar, Vice- President of Data Architecture in CIT, told him at the company Christmas party that Friel told her he did not like Indian and Russian accents and that he was tired of riding in company elevators with people speaking foreign languages or speaking English with foreign accents.

In 2002, Friel established a Global Task Force to investigate the use of additional "globally located" consulting firms, including firms in India, and chose Carmody to head the task force. Plaintiff was appointed head of the India Task Force Team. Plaintiff claimed that he traveled to India at his own expense to meet with potential vendors and reported back on the viability of outsourcing to India. Lacovara testified that plaintiff told him that while he was on vacation in India he met with a few consulting firms. Lacovara told plaintiff to write a report to Friel, which he did.

Plaintiff claimed that Bruce Gray, a financial vice-president at CIT, told him that Friel asked him to "find all of the negative reasons" for outsourcing Prudential's IT work to India, that "Friel doesn't want to go to India" and that Friel "will never visit India." Plaintiff claims that Gray asked him to provide reasons for not outsourcing to India, which plaintiff did. Nevertheless, plaintiff admitted that Friel agreed to outsource some of Prudential's software business to India. Moreover, plaintiff did not know whether additional software business was outsourced to India after the Global Task Force made its recommendations.

Plaintiff further claimed that he was denied no fewer than thirty-nine promotional opportunities. In his certification in opposition to defendants' motion for summary judgment, however, plaintiff provided information regarding only two specific positions he claimed were denied him. Without documentary support, plaintiff claimed that he was "short-listed" for the position of CIO of PRUPAC but that "Friel complained about the fact that [he] was even being considered for the PRUPAC CIO." Plaintiff attested that an August 26, 2001 e-mail from Friel to Robert Golden was the "'smoking gun' evidence of Friel's animus toward [him]." The only statement in the e-mail referring to plaintiff, however, was Friel's comment that the inclusion of plaintiff's name in a list of candidates for the position "was really out of left field." That position was ultimately awarded to a Caucasian male DVP, whom plaintiff claimed was less qualified than he. Friel testified, however, that he chose the other individual because he had successfully completed "the most pressure-filled" assignment in IT and was more qualified than plaintiff.

In 2001, plaintiff complained to David Fitzgerald, a Human Resources officer, that he was "qualified" for the CIO position but had not been selected, had been demoted from a DVP to an FVP and was unfairly treated during his employment. Fitzgerald investigated plaintiff's complaint and told him that he had been hired as an FVP, not a DVP, and that the other candidate had been selected for the CIO position because of his prior successful performance.

In January 2002, plaintiff applied for a CIO position in Prudential's E-Commerce Development Group (EDG). Plaintiff claimed he was well-qualified for the position with thirty years experience, while the individual hired, a Caucasian male DVP, had only twenty years experience. The evidence indicated, however, that the other individual's technical skills and qualifications surpassed plaintiff's, albeit he had fewer years in service than plaintiff.

In opposition to defendants' summary judgment motion, plaintiff submitted a chart prepared by his counsel listing thirty-nine positions he claims he was denied. He did not, however, provide any other information as to whether he was qualified for any of these positions. Nevertheless, he contends that "the vast majority of these lost promotional opportunities involved positions" which, contrary to Prudential's policy, were never posted and were instead "simply 'given' to the selected candidate by Friel without open application process." Again, he provided no evidence to support his claim.

In July 2002, plaintiff had an angiogram during a routine physical, which revealed that he had previously suffered a mild heart attack. He subsequently underwent angioplasty. He claimed that he was more tired because of a change in his diet, but experienced no other heart-related symptoms, nor was his work affected.

In late 2002, Prudential underwent a large scale reorganization due to financial constraints and, as a result, CIT, PruAmerica, CTS and other departments under Friel's control, were required to reduce their budgets by downsizing. Prudential's practice was to terminate an individual who held a position that was eliminated. PruAmerica eliminated one position held by a Caucasian; CTS eliminated seventy-two positions, fifty-one of which were held by Caucasians, four by Asians, fourteen by African-Americans and three by Hispanics. Of the four, FVP positions in CIT, plaintiff's was eliminated because it "was more expendable than the positions of the other [FVPs]." The remaining limited responsibilities of plaintiff's job were assumed by another individual of Indian national origin. According to plaintiff's answers to interrogatories, Lacovara made the decision to eliminate his position and suggested that he talk with David Fitzgerald because he would be terminated.

In his October 24, 2005 certification in opposition to defendants' summary judgment motion, however, plaintiff claimed that Friel, not Lacovara, made the decision to eliminate his position. In that certification, plaintiff claimed for the first time that

Lacovara was very, very upset when he told me of my termination, as if he regretted that it was me who had to be terminated as opposed to someone else; in other words, as if it was not his decision to fire me. As it turned out, he then informed me that he had tried to convince Friel to downsize Carmody instead of me thus acknowledging that it was really Friel who had the final say in my termination. Lacovara had told Friel that . . . it would have made more sense to terminate Carmody, and to have me assume Carmody's responsibilities in addition to my own, as the cost-savings measure. This admission by Lacovara certainly undercuts Prudential's claim that terminating me was the most appropriate cost-cutting measure.

It is notable that plaintiff did not include this allegation in his answers to interrogatories or in his narration to his psychiatric expert. In fact, plaintiff's psychiatric expert wrote in a report dated December 22, 2004 that plaintiff told him Lacovara had decided to eliminate plaintiff's position and Fitzgerald confirmed that "Lacovara had made [the] termination decision." Moreover, Carmody headed the Global Task Force and did not report to Lacovara, so his position was not in competition with plaintiff's for elimination.

After considering the summary judgment motions, the trial judge made detailed findings of fact and conclusions of law as to each of plaintiff's claims. The court noted that plaintiff's "allegations are heavily influenced by perception, by surmise, by speculation . . . on the conduct of the employer without sufficient evidentiary support to raise a material issue of fact." (1T 116) Plaintiff makes the following arguments in this appeal:

POINT ONE

THE EVIDENCE OF DISCRIMINATION, ORIGIN, ANCESTRY, AND COLOR WAS OVERWHELMING, INCLUDING THE SUPERVISOR'S PATENT ANTI-INDIAN ANIMUS, AND INTERNAL INCONSISTENCIES WITHIN PRUDENTIAL'S EXPLANATION OF ITS "LAY-OFFS"; GRANT OF SUMMARY JUDGMENT TO DEFENDANTS WAS UNSUPPORTABLE

A. Mixed-Motive Theory

B. Pretext Theory

1. The Prima Facie Case

2. Standard for Demonstrating Pretext

3. Evidence of Pretext

(a) Prudential's Disingenuous Description of Who Made the Decision to Terminate

(b) Prudential's contention that Vichare's position was the most appropriate one to eliminate as part of a "cost-cutting" measure

POINT TWO

ALL AVAILABLE PROMOTIONS (MORE THAN THIRTY) WERE AWARDED TO UNDERQUALIFIED CAUCASIANS. A SUPERVISOR OPENLY ANTI-INDIAN INTERVENED AGAINST PLAINTIFF'S ADVANCEMENT. DISCRIMIATORY FAILURE-TO-PROMOTE HAS THUS BEEN SHOWN

A. CIO of PRUPAC

B. CIO of EDG

C. Other Promotion Denials

POINT THREE

EXPRESS ANIMUS AGAINST PLAINTIFF FOR FILING HIS LAD CLAIM, AND A TRANSFER TO AN INFERIOR POSITION SUPERVISED BY A FLAGRANT BIGOT, DEMONSTRATE RETALIATION

POINT FOUR

PLAINTIFF TOLD HIS SUPERVISORS OF HIS HEART CONDITION AND NEED FOR TREATMENT, AND WAS THEN SWIFTLY TERMINATED. HE HAS THUS DEMONSTRATED PRIMA FACIE DISABILITY DISCRIMINATION

POINT FIVE

WITHIN THE DYNAMICS OF A WORKPLACE, RACISM WITH AGGRAVATING FACTORS CAN SUPPORT A CLAIM OF INTENTIONAL INFLICTION OF EMOTION DISTRESS

POINT SIX

PRUDENTIAL BREACHED ITS AGREEMENT TO AWARD VICHARE THE POSITION OF DEPARTMENTAL VICE PRESIDENT

POINT SEVEN

THE CAUSE OF ACTION OF PRIMA FACIE TORT EXISTS TO PROVIDE A REMEDY FOR INTENTIONAL WRONGDOING

POINT EIGHT

MYERS, AS AN EXECUTIVE WHO KNOWINGLY AND ACTIVELY CAUSED HARM, BEARS PERSONAL LIABILITY

POINT NINE

STANDARDS OF APPELLATE PRACTICE DEMAND THAT NO DEFERENCE BE GIVEN TO THE JUDGMENT BELOW

POINT TEN

SUMMARY JUDGMENT WAS AT BEST PREMATURE, WHERE PLAINTIFF WAS DENIED HIS RIGHT TO DISCOVERY AS TO UNPUBLICIZED JOB OPENINGS

POINT ELEVEN

THIS COURT NEED NOT DEFER TO A "PALPABLY INCORRECT" FAILURE TO RECONSIDER, WHERE THE LOWER COURT SHOWED MISUNDERSTANDING OF THE FACTS, AND REFUSED TO CONSIDER ADDED CASE LAW OR NEW TESTIMONY

Plaintiff first argues that he presented sufficient evidence to withstand summary judgment on his discriminatory discharge claim under a mixed-motive analysis. The trial court found that there was no direct or circumstantial evidence of discriminatory reasons for plaintiff's termination.

Under a mixed-motive analysis, where an employment decision is based on more than one ground, and where the plaintiff can demonstrate that an impermissible or discriminatory reason was one of those grounds, the burden shifts to the employer to show that it would have made the same decision if illegal bias had played no role in the employment decision. Price Waterhouse v. Hopkins, 490 U.S. 228, 244-45, 109 S. Ct. 1775, 1787-88, 104 L. Ed. 2d 268, 284-85 (1989); McDevitt v. Bill Good Builders, Inc., 175 N.J. 519, 527 (2003) (adopting mixed-motive framework in an age discrimination case); Fleming v. Corr. Health Care Solutions, Inc., 164 N.J. 90, 100-01 (2000) (applying the Price Waterhouse standard).

To withstand summary judgment under a mixed-motive analysis, "proofs of sufficient quality could be provided through 'circumstantial evidence' of conduct or statements by persons involved in the decision making process that may be viewed as directly reflecting the alleged discriminatory attitude." McDevitt, supra, 175 N.J. at 528 (quoting Fleming, supra, 164 N.J. at 101).

Plaintiff has not offered sufficient evidence direct or circumstantial to establish a genuine issue of material fact as to whether his race or national origin was a motivating factor in the decision to terminate him. Even if Friel had some input into the ultimate decision to terminate plaintiff, Friel made no statements that bore directly on the decision, nor did he communicate the proscribed animus within the context of the employment decision.

Even considering the hearsay evidence of Friel's alleged comments in 2000 that he disliked hearing foreign accents and foreign languages, this evidence is not probative on the issue of whether discrimination was a motivating factor in the employment decision because the purported comments were not made close in time to plaintiff's termination and were outside the context and unrelated to the employment decision. It was undisputed that the decision to eliminate plaintiff's position was made in accordance with the overall corporate reorganization and any personal bias Friel may have had against plaintiff which was unsubstantiated in the record could not have been a motivating factor in the employment decision.

Plaintiff next argues that he presented sufficient evidence to withstand summary judgment on his claim of discriminatory discharge under a pretext analysis. N.J.S.A. 10:5-12 provides in part that

[i]t shall be an unlawful employment practice, or, as the case may be, an unlawful discrimination:

a. For an employer, because of the race, creed, color, national origin, ancestry, . . . or the nationality of any individual, . . . to refuse to hire or employ or to bar or to discharge . . . , unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment . . . .

Our Supreme Court has applied the shifting framework articulated by the United States Supreme Court in McDonnell Douglas as the method for analyzing LAD claims. Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 399 (2005). Under the three-step McDonnell Douglas analysis:

(1) the plaintiff must come forward with sufficient evidence to constitute a prima facie case of discrimination;

(2) the defendant must then show a legitimate non-discriminatory reason for its decision; and

(3) the plaintiff must then be given the opportunity to show that defendant's stated reason was merely a pretext or discriminatory in its application.

[Dixon v. Rutgers, the State Univ. of N.J., 110 N.J. 432, 442 (1988); McDonnell Douglas, supra, 411 U.S. at 807, 93 S. Ct. at 1826, 36 L. Ed. 2d at 680.]

See also Armstrong v. Burdette Tomlin Mem'l Hosp., 438 F.3d 240, 249 (3d Cir. 2006); El-Sioufi v. St. Peters Univ. Hosp., 382 N.J. Super. 145, 166 (App. Div. 2005); and Meyers v. AT&T, 380 N.J. Super. 443, 452 (App. Div. 2005), certif. denied, 186 N.J. 244 (2006), all of which applied the McDonnell Douglas analysis to LAD claims.

Under this analysis, a court must first decide "whether plaintiff has produced sufficient evidence to demonstrate the elements of his or her prima facie case." El-Sioufi, supra, 382 N.J. Super. at 166. To establish a prima facie case of discrimination, plaintiff must show that he "(1) belongs to a protected class; (2) applied for or held a position for which he or she was objectively qualified; (3) was not hired or was terminated from that position; and (4) the employer sought to, or did fill the position with a similarly-qualified person." Gerety, supra, 184 N.J. at 399. This is not a "heavy burden." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 455 (2005). The establishment of a prima facie case creates a presumption of discrimination. Viscik v. Fowler Equip. Co., 173 N.J. 1, 14 (2002); Bergen Commercial Bank v. Sisler, 157 N.J. 188, 210 (1999); Dewees v. RCM Corp., 380 N.J. Super. 511, 523 (App. Div. 2005).

Here, plaintiff demonstrated that he belonged to a protected class, he was performing his job and was terminated. Plaintiff did not, however, demonstrate the fourth factor that the position was filled with a similarly qualified person. The evidence indicated that plaintiff's position was eliminated and that the remaining responsibilities after his position was eliminated were assigned to his subordinate, an individual of Indian national origin.

Although plaintiff did not establish all four of the elements in the first step in the McDonnell Douglas analysis, the trial court proceeded to step two, requiring Prudential to produce admissible evidence of a legitimate, non-discriminatory reason for plaintiff's discharge. Gerety, supra, 184 N.J. at 399; Bergen Commercial Bank, supra, 157 N.J. at 210. An employer can meet that burden by introducing evidence which would permit the conclusion that unlawful discrimination was not the cause of plaintiff's discharge. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 194); Greenberg v. Camden County Vocational & Technical Sch., 310 N.J. Super. 189, 199 (App. Div. 1989). Here, defendants presented evidence of the corporate downsizing due to financial constraints as the non-discriminatory reason for plaintiffs' discharge. See Young v. Hobart W. Group, 385 N.J. Super. 448, 459-60 (App. Div. 2005) (holding that elimination of the plaintiff's position was a cost-reduction measure in response to an economic downturn in light-industrial staffing).

Once Prudential produced evidence of legitimate non-discriminatory reasons for plaintiff's discharge, the burden shifted back to plaintiff to show that the stated reasons were a pretext for discrimination. Gerety, supra, 184 N.J. at 399; Bergen Commercial Bank, supra, 157 N.J. at 211; El-Sioufi, supra, 382 N.J. Super. at 166; Dewees, supra, 380 N.J. Super. at 524. "The pretext part of the McDonnell Douglas analysis requires more of a plaintiff than simple identification of an act or event that the plaintiff believes bespeaks discrimination." El-Sioufi, supra, 382 N.J. Super. at 173. To avoid summary judgment on this issue, plaintiff must submit "some evidence, direct or circumstantial, from which a fact finder 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." Zive, supra, 182 N.J. at 455-56 (quoting Fuentes, supra, 332 F. 3d at 764). "Plaintiff's burden on the pretext part of the analysis using either approach, however, is not insignificant." El-Sioufi, supra, 382 N.J. Super. at 174.

Here, plaintiff failed to meet his burden under either approach. It was undisputed that in late 2002 Prudential underwent reorganization. Seventy-four positions were eliminated and, pursuant to company policy, the employees who held those positions were terminated. Plaintiff presented no evidence to discredit the articulated reason.

Under the second approach, plaintiff need not prove that his national origin was the "sole or exclusive consideration" in Prudential's decision to discharge him, but rather that it "played a role in the decision making process and that it had a determinative influence on the outcome of that process." Beatty v. Farmer, 366 N.J. Super. 69, 77 (App. Div. 2004); Greenberg, supra, 310 N.J. Super. at 198.

Here, the trial judge found that there was no evidence that discriminatory animus played a role in the decision because all of the credible evidence indicated that Lacovara whom plaintiff admitted had not discriminated against him made the decision to terminate him. It was undisputed that Friel asked Lacovara to reduce CIT's budget by $150,000 to $250,000. Lacovara said he decided to eliminate an FVP position and ultimately chose plaintiff's position because the developmental and most creative part of the job had been completed and because plaintiff had trained a subordinate to assume any remaining responsibilities. Moreover, plaintiff acknowledged in his deposition testimony that Lacovara made the decision.

Contrary to his deposition testimony, plaintiff attested in his affidavit in opposition to the summary judgment motion that Friel actually made the decision to terminate him. The trial court found, however, that the affidavit raised only a sham factual dispute. The sham affidavit doctrine, applicable to summary judgment motions, is the "practice of disregarding an offsetting affidavit that is submitted in opposition to a motion for summary judgment when the affidavit contradicts the affiant's prior deposition testimony." Shelcusky v. Garjulio, 172 N.J. 185, 194 (2002). The trial court found that plaintiff's affidavit sharply contradicted his deposition testimony, his answers to interrogatories and his discussion with the psychiatric expert. The trial court properly disregarded plaintiff's contradictory affidavit.

Plaintiff next argues that the court erred in granting summary judgment on his LAD claim for wrongful failure to promote him. As the trial court found, plaintiff failed to establish the fourth prong of a prima facie case in that he failed to show that similarly situated employees were promoted while he was not. "Similarly situated" means "those persons possessing equivalent qualifications and working in the same job category as plaintiff." Peper v. Princeton, 77 N.J. 55, 84-85 (1978). Plaintiff, an FVP, applied for positions as CIO of PRUPAC and CIO of EDG. Both positions were awarded to DVPs a higher job category than an FVP. Plaintiff failed to show that others with similar or lesser qualifications were promoted to CIO positions.

With respect to the remaining thirty-seven positions plaintiff claims he was denied most of which he did not apply for he listed only a few of the successful candidates, some of which were DVPs and CIOs, higher positions than plaintiff's.

Plaintiff argues that he is not required to show comparison evidence under the fourth prong. Rather, he contends that he must show only that the challenged employment decision "took place under circumstances that give rise to an inference of unlawful discrimination." Williams v. Pemberton Tp. Public Schools, 323 N.J. Super. 490, 502 (App. Div. 1999). Plaintiff maintains that we need only address the relative qualifications of the successful candidates. We disagree.

We are bound by the opinions of the Supreme Court which held that the fourth prong can be satisfied by showing "that others . . . with similar or lesser qualifications achieved the rank or position." Dixon, supra, 110 N.J. at 443; Peper, supra, 77 N.J. at 82-84. Moreover, Williams is distinguishable because, in that wrongful discharge case, we did not address the similar qualification requirement; rather, we addressed the requirement that plaintiff show that he or she was replaced by someone outside the protected class. 323 N.J. Super. at 502-03.

We are satisfied that defendants presented ample credible evidence that other individuals were properly selected for the CIO positions. With respect to the thirty-seven positions listed in plaintiff's chart, plaintiff provided no information as to whether he was qualified for any of those positions. Consequently, we cannot consider those positions in the context of plaintiff's arguments.

Plaintiff next argues that the trial court erred in granting summary judgment dismissing his LAD claim for wrongful retaliatory transfer pursuant to N.J.S.A. 10:5-12(d). He claimed that Myers transferred him to CIT because he had filed a discrimination complaint against his previous employer, AMBAC. The transfer to CIT occurred in March 1998, however, and plaintiff did not file this action until June 2003. The trial court found that this claim was barred by the two-year statute of limitations. See Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 16-17 (2002); Montells v. Haynes, 133 N.J. 282, 392 (1993).

Plaintiff maintains that the continuing violation doctrine brings this claim within the statute of limitations. As the trial court found, however, there was no pattern of discrimination by Myers, nor did she commit any act contributing to plaintiff's claims within the two-year statutory period. Even if plaintiff could prove that Myers transferred him in retaliation for the AMBAC suit, there is no factual nexus between that act and plaintiff's allegations that he was subsequently denied promotions by Friel and terminated by Lacovara.

Plaintiff's claim that his transfer to CIT was the first in a series of acts culminating in the loss of his promotions and termination is not supported by the evidence. In short, the trial court correctly found that plaintiff's retaliatory transfer claim was barred by the statute of limitations. R. 2:11-3(e)(1)(A).

Plaintiff next argues that the trial court erred in granting summary judgment dismissing his disability claim in violation of N.J.S.A. 10:5-4.1. Although not specifically included within the LAD, disability resulting from a heart attack has been included as a disability within the meaning of N.J.S.A. 10:5-4.1. Close v. Terminix Int'l, Inc., 109 N.J. 575, 593 (1988); Panettieri v. C.V. Hill Refrigeration, 159 N.J. Super. 472, 485 (App. Div. 1978). Although plaintiff claimed a disability, he denied having a heart condition in his deposition testimony. Even if we assume that plaintiff had presented sufficient evidence to establish a prima facie case of discrimination based on disability, he failed to establish that he was terminated on that basis. Although he discussed his medical condition with Friel and Lacovara approximately three months before he was terminated, plaintiff presented no evidence that his disability played a role in the decision-making process. We are satisfied that plaintiff's disability claim was properly dismissed. R. 2:11-3(e)(1)(A).

With respect to plaintiff's claim for intentional infliction of emotional distress, the trial court properly found that plaintiff failed to present sufficient evidence to meet the elevated threshold for such a claim. To prevail, "[t]he plaintiff must establish intentional and outrageous conduct by the defendant, proximate cause and distress that is severe." Buckley v. Trenton Sav. Fund Soc'y, 111 N.J. 355, 366 (1988). The emotional distress must be "'so severe that no reasonable [person] could be expected to endure it.'" Ibid. (quoting Restatement (Second) of Torts, 46 Comment (d) and (j) (1965)).

"Generally, it is 'rare to find conduct in the employment context which will rise to the level of outrageousness necessary to provide a basis for recovery' on a claim of intentional infliction of emotional distress." Harris v. Middlesex County Coll., 353 N.J. Super. 31, 46 (App. Div. 2002) (citing Griffin v. Tops Appliance City, Inc., 337 N.J. Super. 15, 23-24 (App. Div. 2001)). One instance in which an employee was permitted to pursue a claim of intentional infliction of emotional distress in the employment context involved an African-American employee who was referred to once by his employer as a "jungle bunny." Taylor v. Metzger, 152 N.J. 490, 496 (1998).

Plaintiff presented no evidence of racial comments made to him by Friel or any other Prudential employee. The hearsay comments reported to plaintiff by a co-worker that Friel purportedly did not want to travel to India or outsource Prudential's software business to India were neither extreme nor outrageous, nor was there any indication that defendants intended to inflict emotional distress upon him. See Young, supra, 385 N.J. Super. at 468 (holding that an employer's alleged comment that the plaintiff was close to retirement and that she was not in it for the long haul was not extreme and outrageous); Settineri v. PNC Bank Corp., 371 N.J. Super. 537, 546 (App. Div. 2004) (holding that an employer's alleged conduct in giving plaintiff a poor review, transferring her to a position far from home and counseling her for violating bank policy was not extreme and outrageous). In short, we are satisfied that the trial court properly dismissed plaintiff's claim for intentional infliction of emotional distress. R. 2:11-3(e)(1)(A).

Plaintiff next argues that the trial court erred in granting summary judgment dismissing his claims for breach of contract, promissory estoppel, unjust enrichment and breach of implied covenant of good faith and fair dealing, relating to his allegation that defendants breached a specific oral agreement to hire him as a DVP.

In order to be enforceable, the terms of an oral contract must be "clearly, specifically and definitely expressed, and the intent of the parties may be ascertained from the oral agreement, the attendant circumstances and the presence of valuable consideration." Swider v. Ha-Lo Indus., 134 F. Supp. 2d 607, 617 (D.N.J. 2001). Although plaintiff claims that two Prudential executives indicated he was being hired as a DVP, his written offer of employment listed only the position of Vice-President of O&S an FVP position. There was no documentation indicating that he had been hired as a DVP.

We are similarly unpursuaded by plaintiff's argument that the trial court erred in dismissing his claims for breach of implied covenant of good faith and fair dealing, promissory estoppel and unjust enrichment. As the trial court found, plaintiff's failure "to establish the existence of a contract and/or a breach thereof[,] renders moot his claim of an implied covenant of good faith and fair dealing." With respect to his promissory estoppel claim, plaintiff failed to present evidence of an oral contract or detrimental reliance sufficient to support such a claim. Bumbaca v. Twp. of Edison, 373 N.J. Super. 239, 252-53 (App. Div. 2004), certif. denied, 182 N.J. 630 (2005).

Moreover, "[a] cause of action for unjust enrichment requires proof that 'defendant received a benefit and that retention of that benefit without payment would be unjust.'" County of Essex v. First Union Nat'l Bank, 373 N.J. Super. 543, 549 (App. Div. 2004) (citing VRG Corp. v. GKN Realty Corp., 135 N.J. 539, 554 (1994)), aff'd, 186 N.J. 46 (2006). "The most common circumstance for application of unjust enrichment is when a plaintiff has not been paid despite having had a reasonable expectation of payment for services performed or a benefit conferred." County of Essex, supra, 373 N.J. Super. at 550. Nothing in the record before us indicates that plaintiff had a reasonable expectation that he would be hired as a DVP. Moreover, he did not perform the work of a DVP, such that he can claim "a reasonable expectation of payment for services performed or a benefit conferred." Ibid. The trial court properly dismissed these claims. R. 2:11-3(e)(1)(A).

We have carefully considered plaintiff's remaining arguments and we are satisfied that each of them lacks sufficient merit to warrant discussion in this opinion. R. 2:11-3(e)(1)(E). The trial court's grant of summary judgment was based upon findings of fact which were adequately supported by the record. R. 2:11-3(e)(1)(A); Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995).

Affirmed.

 

McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817, 1824, 36 L. Ed. 2d 668, 677 (1973).

See Parker, Lorraine C., Sex Discrimination and the New Jersey Constitution after Peper v. Princeton, 6 Women's Rights Law Reporter 133-44 (1979-80).

Although plaintiff claimed that two Prudential executives told him he would be hired as a DVP, his offer of employment clearly stated the position for which he was hired and plaintiff has presented no evidence to corroborate his claim that he was hired as a DVP.

(continued)

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A-3056-05T5

November 21, 2007