LYNN TITUS v. KELLY SERVICES

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-5303-04T55303-04T5

LYNN TITUS,

Plaintiff-Appellant,

v.

KELLY SERVICES,

Defendant-Respondent.

___________________________________________________

 

Argued December 13, 2006 - Decided April 27, 2007

Before Judges Stern, A. A. Rodr guez and Lyons.

On appeal from the Superior Court of New

Jersey, Law Division, Middlesex County,

Docket No. L-0733-03.

Kevin E. Barber argued the cause for appellant

(Niedweske Barber, attorneys; Mr. Barber and

Eliyahu S. Scheiman, on the brief).

John K. Bennett argued the cause for respondent

(Connell Foley, attorneys; Mr. Bennett and

Joseph C. DeBlasio, on the brief).

PER CURIAM

Plaintiff Lynn Titus appeals from a judgment entered on April 27, 2005, dismissing her complaint under the Law Against Discrimination, N.J.S.A. 10:5-1 to -49. She specifically challenges the denial on April 1, 2005, of her motion for reconsideration of a March 4, 2005 grant of summary judgment on her constructive discharge claim. At the subsequent trial on plaintiff's gender discrimination-failure to promote claim, a verdict was rendered against plaintiff, resulting in the final judgment.

The case deals with defendant's failure to promote plaintiff to the position of Director of the Northeast Region.

The jury found that plaintiff was "at least as qualified" for the position as Richard Pennock, the male who was promoted to the job, but that the defendant did not engage in "intentional discrimination by not promoting [plaintiff] to the position . . . because of [her] gender or because she was a woman[.]"

On this appeal, plaintiff argues that "the motion judge applied the improper standard to appellant's constructive discharge claim and, therefore, it should be reinstated and tried to a jury." Plaintiff also contends that "the trial court abused its discretion and committed reversible error by excluding evidence relating to the discriminatory treatment of a similarly situated [female] comparator," Diane Long, and that "the trial court abused its discretion and committed reversible error by excluding the statement of an upper manager and decision maker," defendant's former vice-president and general manager Peter Brixius, who had been plaintiff's boss for a year and recommended the promotion of Pennock. Plaintiff believes that exclusion of Long's deposition and Brixius' statement prevented her from establishing pretext and discrimination. We reject these contentions, and affirm the judgment.

I.

With respect to the constructive discharge claim, plaintiff contends that she:

has presented sufficient material facts to establish: (1) she was qualified for the Director Promotion; (2) she had a reasonable expectation of promotion; (3) the failure to promote her was a career-ending action; (4) the Respondent wrongfully disregarded her attempts to mitigate the intolerable conditions by: (i) failing to properly address her complaints, (ii) failing to honor her request to change reporting structure; and (5) providing her with an ultimatum to accept the promotion or leave. Accordingly, . . . [a]ppellant has stated a viable claim for constructive discharge, and that claim should be reinstated and remanded for trial.

We agree that summary judgment was properly granted. Plaintiff did not like working with Pennock previously, and the defendant did not respond positively to plaintiff's complaints about his promotion. However, plaintiff did not demonstrate that the working conditions were "so intolerable that a reasonable person would be forced to resign rather than continue to endure [them]." Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 28 (2002) (upholding summary judgment dismissing a constructive discharge claim, but not the hostile work environment claim on which it was based). See also Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167-71 (3d Cir. 2001) (insufficient evidence to justify resignation); Clowes v. Alleghany Valley Hosp., 991 F.2d 1159, 1161 (3d Cir. 1993) (same); Zubrycky v. ASA Apple, Inc., 381 N.J. Super. 162, 164-66 (App. Div. 2005) (no constructive discharge under CEPA for making complaint about overtime pay).

We need not address whether plaintiff's expectations that she would receive the position were "reasonable," or whether the failure to promote effectively ended her career, because, even if we assume that both were true, we do not conceive that our Supreme Court would apply a different standard of proof to a constructive discharge case based on failure to promote than one based on a hostile environment. This appointment alone does not make the working conditions so intolerable that a reasonable person would be forced to resign rather than continue her work.

II.

Plaintiff attacks the verdict at the trial on two grounds. She first asserts that the trial judge improperly excluded evidence that another woman, Diane Long, was qualified but not considered for the position and that Long complained about the treatment of women in the promotion process. Plaintiff also asserts that the judge improperly excluded the statement of Brixius, made after the complaint was filed, that plaintiff and Long were not considered for the position. The statement was embodied in an e-mail prepared for the litigation from defendant's human services department to its legal department.

We find no basis for disturbing the judgment.

Plaintiff contends that the e-mailed Brixius statement was inconsistent with Brixius' trial testimony. However, the statement, even if interpreted as beneficial to plaintiff's case, was properly excluded. The statement constituted work product, prepared at the request of corporate counsel to assist in the litigation, Miller v. J.B. Hunt Transp., Inc., 339 N.J. Super. 144 (App. Div. 2001), and it was inadvertently disclosed during discovery. Cf. Kinsella v. NYT Television, 370 N.J. Super. 311, 318 (App. Div. 2004); Nat'l Util. Serv., Inc. v. Sunshine Biscuits, Inc., 301 N.J. Super. 610, 614 n.2 (App. Div. 1997) (inadvertent disclosure does not create a waiver). Moreover, Brixius testified at the trial, and no issue has been raised concerning restrictions or limitations placed on his testimony.

Plaintiff also asserts that similar treatment of Ms. Long, another female, is relevant to the discrimination claim and should not have been excluded. According to plaintiff:

In this Appeal, Long was a female co-worker, holding the same position as Appellant, co-second in command of the Northeast Region (which was the largest revenue and profit region out of all of Respondent's operations), working in the same region, in the same office, on the same three-person team, and who was qualified for the Director promotion, and was not promoted for essentially the same reasons.

The Long Evidence is highly probative as to [the] issue of Respondent's discriminatory intent - the ultimate issue and the issue [on] which the jury returned a verdict on Respondent's behalf. . . . As to pretext, however, the jury was unanimous in finding a lack of discriminatory intent because the Long Evidence was not only material, but critical to prove that issue, especially in light of Respondent's injection of the favorable treatment of five (5) other female directors.

In response, although defendant introduced evidence of favorable treatment of five female employees, defendant contends that the trial judge did not abuse her discretion in excluding evidence of Long's lack of promotion under N.J.R.E. 403.

Plaintiff sought to introduce portions of Long's deposition testimony. Plaintiff asserts:

The Trial Court improperly excluded Appellant's proposed read-ins of Long's testimony relating to her qualifications for the Director promotion and her objections regarding the promotion process to Respondent's upper managers and decision-makers which were ignored and went unanswered. It also precluded Appellant from examining Respondent's upper managers and decision-makers, e.g., Watt, Kleiner, Brixius and Weil as to Long's qualifications for the Director promotion, why they failed to even consider her for the promotion, and her alleged work problems with Appellant which disqualified her consideration for the promotion - the same [from] criteria Respondent utilized to disqualify Appellant ("the "Long Evidence").

Even if the Trial Court correctly excluded the Long Evidence before trial started, during trial, Respondent "opened the door" to the Long Evidence by eliciting testimony from its upper managers regarding the favorable treatment and promotional opportunities of at least five (5) women managers of Respondent. Once Respondent put the treatment of these other women at issue, it was fair - and indeed necessary - to allow Appellant to introduce the discriminatory treatment of Long as well as upper management's willful indifference to her complaints. It was necessary to counterbalance the inference that Respondent sought to create by putting at issue the five (5) women managers: Respondent treated women fairly and non-discriminatorily with respect to promotional and other opportunities. This error manifestly denied Appellant of a fair trial and, on this basis alone, this matter should be reversed and remanded for a new trial consistent with this Panel's opinion.

. . . .

In sum, by precluding Appellant from introducing the Long Evidence, the Trial Court impeded Appellant's ability to prove the ultimate issue: Respondent's intentional discrimination. That alone substantially affected the outcome of Appellant's case and is prejudicial and hence reversible error. But then allowing Respondent to introduce evidence of alleged favorable treatment of five (5) other women and nonetheless prohibiting Appellant to do the same with the Long Evidence, the Trial Court committed another reversible error. Individually and cumulatively, the effect of the Trial Court's erroneous evidentiary rulings requires reversal and remand for a new trial consistent with this Panel's opinion.

However, as defendant puts it:

Indeed, plaintiff's Brief on appeal asserts only that the trial court excluded excerpts from Ms. Long's deposition testimony relating to:

(1) her qualifications for the Director

promotion; and

(2) her objections regarding the promotion

process that was followed.

The fact is, all of that testimony was introduced into evidence at trial. There was nothing else to introduce. Ms. Long admitted during her deposition that aside from private conversations she had with plaintiff, she did not have any discussion with any of defendant's employees about gender discrimination and made no complaints about gender discrimination. Therefore, there is no deposition testimony by Ms. Long concerning alleged "discriminatory treatment."

With respect to Ms. Long's complaints about the "promotion process," the trial judge's ruling prior to trial was that the testimony would be excluded under N.J.

Evid. R. 403. However, plaintiff now either ignores, or forgets, that after the trial began, the trial judge reversed her own ruling in limine, and allowed Ms. Long's deposition testimony pertaining to her complaints about the "promotion process" to be read to the jury. Thus, plaintiff's contention on appeal that Ms. Long's testimony was excluded is simply wrong, and her arguments pertaining to that issue are moot and certainly not error.

Plaintiff called Weil, Brixius and Watt as well as herself as witnesses. She was also ultimately permitted to read into evidence portions of Long's deposition concerning her knowledge and dissatisfaction with the selection process for management and director personnel, including her lack of opportunity for consideration and "dissatisfaction with the process." As to the excluded portions, after reviewing the deposition and reading portions of it into the record at the outset of the trial, the judge said:

This Court finds after reviewing the evidence before me, and specifically the proposed readings of Miss Long that that testimony alone, with nothing else regarding Miss Long's work history and record, doesn't in any way substantiate that she was a more -- she was more qualified for the director promotion than Mr. Pennock; and that actually distinguishes this case from the Baker case that was cited by the plaintiff.

In the Baker case, the Court there held that "Evidence of disparate treatment is relevant and admissible because it forms the basis for the inference of a discriminatory motive. Disparate treatment is the most easily understood type of discrimination; the employer simply treats some people less favorably than others because of the protected characteristic."

In that case, the -- the Court found that "Here the evidence of the poor performance of plaintiff's replacements was not submitted to disprove defendant's proffered reason for terminating the plaintiffs. It showed the plaintiffs were clearly better qualified than the younger people who replaced them, as well as disparate treatment between older and younger employees."

This Court finds that that's not what we have here.

Nor does this testimony substantiate that since Miss Long was not considered for the promotion that this rises to an inference of unlawful discrimination. The dep[osition] testimony is not calculated, in this Court's opinion, to demonstrate that there's disparate treatment or a pattern of practice of discrimination.

Miss Long's testimony would -- has very limited probative values to show the existence of pattern and practice. In fact, the minimal probative value of the testimony, her -- about her own subjective beliefs as to why she was not considered for the promotion of [director] would be substantially outweighed by the risk of undue prejudice to the defendants.

Miss Long admits that she was told that there may be future opportunities for her in the company, but that this director position was not negotiable. The situation where, at least according to the written policy, that they didn't have to post it; there's nothing in her testimony -- in fact, she admits here that she was told that, you know, she may be -- she may be considered for something different and -- and something in the future, but not for this particular position.

As in the Haskel case, no probative value can be ascertained from the testimony of Miss Long about her own beliefs as to why she was not considered for the director position. It can be assumed that other men were also not considered for this director position and it wasn't just these two women in the department, and I glean that from Miss Long's own testimony, where she said that she was told that there might be a fallout, and a fallout not only with the plaintiff and herself, but also others may follow.

Miss Long's testimony does not provide any basis for an inference of discrimination since the testimony of Miss Long as to the circumstances as to why she thinks she should have been considered for the job, is insufficient to show a pattern and practice or disparate treatment of discrimination. It's not relevant as to the question of whether plaintiff was terminated for gender related reasons.

This Court finds that the probative value of the testimony is substantially outweighed by the danger of unfair prejudice.

Long remained an employee of the defendant, but was working in Germany and not within the State, at the time of trial. The trial judge noted that plaintiff made no effort to secure her presence or to take a de bene esse deposition in advance of the trial.

The issue before us is not whether we, as trial judges, would have admitted the evidence. The evidence does give a favorable inference to plaintiff because Long felt she was equally qualified for the position yet passed over. However, the facts concerning Long's performance and qualifications would have been subject to lengthy development if the full deposition was admitted. In any event, the only issue properly before us is whether the trial judge abused her discretion in excluding the evidence. Given the judge's comprehensive statement of reasons, we cannot conclude that the judge abused her considerable discretion under N.J.R.E. 403 in finding that prejudicial effect of the deposition testimony would substantially outweigh its probative value. See N.J.R.E. 403(b); Rendine v. Pantzer, 141 N.J. 292, 309-10 (1995).

The judgment is affirmed.

 

The March 4, 2005 order and the opinion on which it is based are not in the record before us, but the record contains argument on February 18, 2005 of defendant's motion for summary judgment and argument on April 1, 2005 of the motion for reconsideration.

The initial complaint names a number of defendants. Kelly Scientific Resources was not a separate entity and was voluntarily dismissed. Kelly vice-presidents Peter Brixius and Andrew Watt and the former Director of Northeast Operations, Anthony Weil, were also defendants. However, the case was presented to the jury against Kelly Services only, and the parties treat Kelly as the only defendant-respondent, and we do the same.

See footnote 1, supra. As noted, we do not have the opinion of reasons for granting summary judgment. We nevertheless consider the point.

The memo, which was inadvertently disclosed in discovery, said in part:

The Northeast was reorganized to gain greater efficiencies. Previously it had been 3 separate and distinct districts. However, due to the geographically close nature of Philadelphia and New Jersey there was a great deal of overlap in both customers and employees. The purpose of combining the districts was to encourage greater customer development at our OOP locations and to encourage local retail development in the markets. Tony Weil was originally selected as Director of the group. Diane Long reported to Tony and will be responsible for business development and growing local retail development; Lynn Titus will also report to Tony and will be responsible for operations as well as developing business with our OOP locations.

The model never really effectively worked. Diane and Lynn did not relinquish their previous reporting relationships. They did not work together well. There was not significant growth of retail accounts nor was their significant growth at OOP accounts.

At the same time there was a growing need for a national sales man[a]ger to lead all of KSR in business development. Tony Weil was selected for this position opening the Northeast Director.

Rich Pennock had a proven track record of success. As a Sales Manager in Princeton, NJ he opened up many doors and increased business. As a Branch Manager in Atlanta he improved operations procedures and built strong relations with our customers. As District Manager in Chicago he shored up a faltering operation increasing retail business and worked well with the large national accounts in his market. Lynn and Diane were not considered for this opportunity because they had not proven themselves in the new model - they had not worked well together and had not met the goals of the new model.

Plaintiff does not argue that the verdict was against the weight of the evidence. In light of our disposition on the discrete issues raised, we need not address that issue or the concept of harmless error based on the proofs presented.

At trial Brixius noted "that we needed to bring in some outside influence into the area," a factor not noted in the e-mailed statement, but one used by defendant to support Pennock's promotion.

She acknowledged knowing no "policy or procedure that would have required that . . . the Northeast District position be posted" at the time of Pennock's promotion.

Although not fully cited in the opinion, the transcript leading to it, or the briefs before us, we have found this quotation in Baker v. Nat'l State Bank, 312 N.J. Super. 268, 296-97 (App. Div. 1998), aff'd in part and remanded in part, 161 N.J. 220 (1999).

In Rendine v. Pantzer, 141 N.J. 292, 309-10 (1995), the Supreme Court discusses Haskell v. Kaman Corp., 743 F.2d 113, 120-22 (2d Cir. 1984), and other cases dealing with exclusion of evidence of alleged discriminatory treatment of other employees "analogous to that asserted by the plaintiff."

(continued)

(continued)

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A-5303-04T5

April 27, 2007