SPRETER v. AMERICOURCEBERGEN CORPORATION et al
Filing
108
OPINION. Signed by Judge Joseph E. Irenas on 10/30/2014. (dmr)
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
JANE SPRETER,
Plaintiff/Counter-Defendant,
HONORABLE JOSEPH E. IRENAS
CIVIL ACTION NO. 12-2187
(JEI/KMW)
v.
AMERISOURCEBERGEN CORPORATION
and AMERISOURCEBERGEN DRUG
CORPORATION,
OPINION
Defendants/Counterclaimants.
APPEARANCES:
CONSOLE LAW OFFICES LLC
Stephen G. Console, Esq.
Marjory Albee, Esq.
Caren N. Gurmankin, Esq.
110 Marter Avenue, Suite 105
Moorestown, NJ 08057
Counsel for Plaintiff/Counter-Defendant Jane Spreter
BLANK ROME LLP
Stephen M. Orlofsky, Esq.
Rachel J. Gallagher, Esq.
301 Carnegie Center, 3rd Floor
Princeton, NJ 08540
Counsel for Defendants/Counterclaimants
AmerisourceBergen Corporation and AmerisourceBergen
Drug Corporation
Pro Hac Vice:
BLANK ROME LLP
Larry R. Wood, Esq.
Frederick G. Sandstrom, Esq.
One Logan Square
130 North 18th Street
Philadelphia, PA 19103
Counsel for Defendants/Counterclaimants
AmerisourceBergen Corporation and AmerisourceBergen
Drug Corporation
1
Irenas, Senior District Judge:
This is an employment discrimination and retaliation suit
brought by Plaintiff Jane Spreter against her former employer,
Defendants AmerisourceBergen Corporation and AmerisourceBergen
Drug Corporation (hereafter collectively referred to as
“Amerisource”).
Spreter’s claims under Title VII, 42 U.S.C. §
1981, and the New Jersey Law Against Discrimination are
apparently based on many and varied complaints and several
alleged adverse employment actions occurring over the last year
of Spreter’s 30-year employment with Amerisource.
Spreter primarily claims, however, that she was
constructively discharged in retaliation for making internal
complaints concerning Amerisource’s “diversity” hiring policy;
and that similarly, as a white female, she suffered
discrimination when Amerisource promoted a less qualified female
minority employee and a less qualified male minority employee
ahead of her. 1
This Opinion addresses both of Amerisource’s summary
judgment motions; the first seeking judgment on Spreter’s
claims, and the second seeking judgment on Amerisource’s
counterclaims.
A separate Order will address a third motion,
Spreter’s complaint asserted failure to promote claims as to
four separate positions. Now at summary judgment, Spreter only
contests two of the four. Accordingly, summary judgment will be
granted to Amerisource on the two abandoned claims.
1
2
which is Spreter’s Motion for Reconsideration of this Court’s
Order of April 22, 2014.
For the reasons stated herein, Amerisource’s Motion for
Summary Judgment on Spreter’s claims will be granted.
Amerisource’s Motion for Summary Judgment on its counterclaims
will be granted as to the breach of contract claim and denied as
to the declaratory judgment claim.
In light of the disposition
of Spreter’s direct case, the declaratory judgment claim will be
dismissed for lack of a live case or controversy.
I.
A.
Before setting forth the facts of this case, the Court must
address what is properly considered part of the summary judgment
record in this suit.
Spreter’s opposition brief sets forth in
table form, a litany of “complaints of discriminatory conduct
and the adverse actions based on the same,” consuming almost
three single-spaced pages of her brief.
p. 4-7)
(See Opposition Brief
The table cites to Plaintiff’s Statement of Additional
Undisputed Facts, which in turn, mainly cites to Plaintiff’s
deposition and her separate declaration.
Of course, only the
deposition transcript and the declaration might be properly
considered; the brief and statement of undisputed facts are not
3
evidence. 2
See generally Fed. R. Civ. P. 56(c)(1) (stating that
factual assertions must be supported by cites to “particular
parts of materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations . . ., admissions, interrogatory
answers, or other materials.”).
In this regard, the Court must note that Plaintiff’s Statement
of Additional Undisputed Facts (“SOAF”) repeatedly distorts and
misrepresents the facts in the actual record. To cite just one
of several possible examples, Plaintiff’s SOAF ¶ 71 states, “In
around October 2010, Plaintiff complained to Mr. Caffentzis that
he routinely gathered his male direct reports to have lunch with
him, but that female subordinates were routinely excluded from
the same.” In support of this statement Plaintiff’s counsel
cites Caffentzis’ deposition testimony. However, Caffentzis’
testimony is vastly different than counsel’s characterization of
it. First, nothing in Caffentzis’ testimony supports a finding
of fact or inference that the conversation between Spreter and
Caffentzis ever took place during a specific time period; the
transcript provides no support for the “October 2010” date.
Second, Caffentzis’ testimony as to Spreter’s asserted
“complaint” was actually this: “Q: What’s the conversation you
had [with Spreter]? A: That there were a group of men going out
to lunch together. Q: And you would sometimes join them,
right, when you came to [the] Thorofare [office]? A: It
depended on what my schedule was. Sometimes I had lunch out of
the office with people. Sometimes by myself. Q: And when you
would go on those lunches would you ever invite Miss Spreter
along? A: I’m not sure if I ever did.” (Caffentzis Dep. p.
324)
Notably, Spreter testified that she “rarely saw” Caffentzis
in the New Jersey office where she worked because “[h]e worked
often out of either his home, his home in Florida, or at the
corporate office [in Pennsylvania]. So it was, you know, few
and far between when we actually met with him or saw him face to
face.” (Spreter Dep. 176-77)
2
4
But in this case, the Court concludes that the sham
affidavit doctrine applies, and therefore Spreter’s declaration
should not be considered in the summary judgment analysis.
“A sham affidavit is a contradictory affidavit that
indicates only that the affiant cannot maintain a consistent
story or is willing to offer a statement solely for the purpose
of defeating summary judgment.
A sham affidavit cannot raise a
genuine issue of material fact because it is merely a variance
from earlier deposition testimony, and therefore no reasonable
jury could rely on it to find for the nonmovant.”
Jiminez v.
All American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir.
2007).
“The main practical reason supporting the sham affidavit
doctrine is that prior depositions are more reliable than
affidavits.”
Id.
In opposition to Amerisource’s Motion for Summary Judgment
on Plaintiff’s claims, Spreter’s first exhibit is the entire
transcript of her day-long deposition, taken on May 30, 2013. 3
The Court has read the entire transcript.
Spreter’s testimony
is replete with generalities and vague references to
“complaints” and “concerns” she had.
Her testimony rarely
The transcript indicates the deposition began at 9:40 a.m.
and concluded at 6:30 p.m. (Pl’s Ex. 1)
3
5
identifies to whom she complained or when she complained. 4
Attempts by defense counsel to elicit specific information
proved futile.
For example:
Q:
Identify for the record the complaint you made
which resulted in AmerisourceBergeren providing you
with an offer to transfer to a corporate headquarters
job in April of 2011? 5
. . .
A:
There’s multiple complaints.
Q: So you can’t identify a single one that was the
cause of the company offering you a corporate HR job
in April of 2011?
. . .
A:
Not a single complaint, no.
complaints.
It was multiple
(Spreter Dep. p. 229-30) 6
Such facts are essential in an employment discrimination /
retaliation case such as this where who knew what, when is
directly relevant to the issues of causation, pretext and
discriminatory / retaliatory intent.
4
As discussed infra, Spreter argues that Amerisource’s
transfer offer was an adverse employment action.
5
At a different point in her deposition, Spreter was asked to
identify to whom she complained about a Hispanic male being
promoted over her. Her answer: “I complained to Pedro Veliz. I
complained to Michelle Bridges. I complained to June Barry. I
complained to Meryl Harrari. I complained to [my direct
supervisor] A.J. I complained to James Frary. I complained to
Nicole Carlyle. I complained to June Bruni. I complained to my
peers, the HRDs.” (Spreter Dep. p. 298-99)
6
6
Similarly, when defense counsel asked Spreter for the dates
of her multiple complaints, she could not supply a date for most
of them.
(See Spreter Dep. p. 296, 299-303)
While Spreter
testified that she could provide dates after consulting her
“records” (id.), no such documents are to be found in the
summary judgment papers before the Court.
Spreter’s declaration is an obvious attempt to create
concrete claims by identifying specific people to whom Spreter
complained and specific time frames in which she complained.
In
short, the declaration attempts to fill-in the blanks of
Spreter’s deposition testimony.
The date of her declaration, May 19, 2014, is significant
for two reasons: (1) the declaration was signed almost a year
after her deposition, and (2) it was signed on the very same day
defense counsel filed Spreter’s opposition to Amerisource’s
summary judgment motion.
Spreter provides no explanation for
why, a year later, she was able to provide specific details that
she could not provide during her deposition.
Moreover, Spreter
has not supported those details with any other record evidence.
See Jiminez, 503 F.3d at 108 (“The timing of the affidavit,
whether there is a plausible explanation for the contrary
statements, and whether there is independent evidence in the
record supporting the affidavit may be considered when
determining whether an affidavit is a sham.”).
7
Thus, the Court concludes that the declaration was offered
solely for the purpose of defeating summary judgment.
The Court
rejects Spreter’s post-hoc attempt to fill-in the blanks of her
deposition testimony.
The declaration will not be considered.
B.
Spreter’s retaliation claim
Spreter began working for Amerisource’s predecessor in
1981.
In 1990, she was promoted to Human Resources Director for
the East Region, working in Amerisource’s Thorofare, New Jersey
office.
She held that position until her employment with
Amerisource ended on May 6, 2011.
(Spreter Dep. p. 15)
In an “offer letter” dated April 29, 2011, Spreter was
given two options: (1) move to a different position in
Amerisource’s corporate headquarters in Chesterbrook,
Pennsylvania, or (2) accept a severance package.
(Pl’s Ex. 33)
She chose neither option, electing instead to resign without a
severance.
Spreter contends that the April 29, 2011 letter--
which she considered an “ultimatum”-- was retaliation for
complaints she made about Amerisource’s diversity recruiting
policy.
It is undisputed that the April 29, 2011 letter came
approximately one year after A.J. Cafentzis became Spreter’s
8
direct supervisor as a result of a company-wide management
restructuring.
According to Spreter, around the same time that Ceffentzis
became her supervisor, she began making complaints about what
she believed to be Amerisource’s “discriminatory conduct”--i.e.,
“placing individuals in jobs based on things other than
qualifications such as race and sex.” (Spreter Dep. p. 57-59)
Sometime in the year prior to Spreter’s termination of
employment, Spreter “contacted Pedro [Veliz, Amerisource’s
recruiting manager] to express concern” that Jay Webster was
hired for an open Senior HRD position “because he was a male.”
(Id. p. 83, 295-96)
When further asked at her deposition, “To
whom did you make a complaint about naming Jay to the position .
. . ?”
Spreter testified, “I complained to Pedro Veliz.
complained to Michelle Bridges.
complained to Meryl Harrari.
supervisor] A.J.
Nicole Carlyle.
I
I complained to June Barry.
I
I complained to [my direct
I complained to James Frary.
I complained to June Bruni.
I complained to
I complained to my
peers, the HRDs.” (Id. p. 298-99)
In an email to Jay Webster, on September 29, 2010, in
response to Webster’s inquiry as to what Spreter thought of a
meeting, Spreter wrote,
I thought [the] short intro to Diversity was really
interesting, compelling and heartfelt.
I think we
are heading in the right direction with the Diversity
9
initiative. . . . There were some suggestions made
about rewarding managers for hiring diversity
candidates that were concerning but I’m not quite
sure I heard them correctly. Hopefully if we consider
something like that we have more discussions before
implementing.
(Pl’s Ex. 20)
Spreter further testified that, “immediately following”
that same meeting she “consulted” Amerisource’s in-house lawyer,
Michelle Conte, “about giving bonuses for hiring diversity
candidates and giving bonuses for having a diversified
department,” and “had numerous conversations with” Amerisource’s
Chief Diversity Officer about the issue as well.
(Spreter Dep.
p. 340)
Also at some unspecified time during the last year of
Spreter’s employment, Spreter and her supervisor, A.J.
Caffentzis, had more than one conversation about “bullpen
recruiting,” which Spreter and Caffentzis both understood to
mean holding a “meet and greet” with a large pool of prospective
applicants.
(Caffentzis Dep. p. 284-85)
Caffentzis testified
that he expressed his desire to pursue bullpen recruiting but
Spreter told him that “it was illegal.”
287)
(Caffentzis Dep. p.
Caffentzis further testified,
A: I asked [her to explain] why that would be
illegal for us to do that if we were documenting all
the candidates that we were seeing, if we were
following all of our normal business practices but
trying to shorten the duration of having a vacancy.
10
. . .
Q:
Didn’t [Spreter] tell you that practices like
bullpen recruiting could result in discrimination
because a lot of people in power are white males who
are likely to hire individuals who look like them?
. . .
A:
Yes.
(Caffentzis Dep. p. 287-88)
Spreter later told Amerisource’s in-house lawyer that
Caffentzis wanted to pursue bullpen recruiting and that she
believed such recruiting could be discriminatory.
(Conte Dep.
p. 91-92)
In January, 2011, during a conference call with
unidentified people, Spreter states that she raised concerns
about a proposed hiring plan which included “committing to a
number” of “diversity hires.”
(Spreter Dep. p. 246-47)
A week
later she wrote an email to her supervisor:
AJ,
In answer to your question ‘Do you feel like we will
have action steps from the recruiting session?’, at
this point I cannot answer for sure.
I raised a
concern on the HRD call last week when it was relayed
that they would be asking each region to ‘commit to a
certain number of diversity hires.’
But the
presentation draft that Espy sent me last night
contains similar language. I’ve asked Espy to clarify
what the first bullet point is asking or requiring us
to do but I’ve not heard back from her yet. My guess
is that this drafted strategy has not yet been
reviewed by legal and would be surprised if it ends
up in the final plan.
11
(Pl’s Ex. 50)
It is undisputed that the presentation draft was later
changed to “reflect not a commitment to diversity hires but a
commitment to hire the most talented and diverse” workforce.
(Pl’s Ex. 51; Spreter Dep. p. 255-58)
In April, 2011, after Spreter made the alleged complaints,
but before receiving the April 29, 2011 “offer” letter,
Caffentzis completed Spreter’s annual Performance Evaluation
Form.
(Pl’s Ex. 13)
Spreter received an overall Performance
Rating of 2 / “Partially Meets Expectations,” on a scale of 4.
(Id.)
The 17-page evaluation form is extremely detailed,
containing lengthy individualized comments from both Caffentzis
and Spreter herself on almost every page.
While Caffentzis
criticized Spreter in some respects, he was positive in others.
For example, the following “comments” from Caffentzis appear
together on the same page:
Adaptability/Innovation: The description here calls
out: Adapts to change, open to new ideas, identifies
creative solutions, solves problems creatively. None
of
these
describes
Jane’s
perspective,
action
planning, and daily activities.
Jane has shown an
inability to be open to change and will in all cases
defer to the ‘way we have always done it.’ There is
opportunity to look at how we have done things in the
past and determine if there are better ways to
execute/drive things in the future.
Decision
Making/Judgment:
Jane
makes
solid
decisions. In terms of judgment Jane can continue to
work on understanding that she is one of the leaders
12
of the region and she can continue to drive for change
and results.
Integrity/Ethics:
integrity/ethics.
Jane
(Pl’s Ex. 13 at ABC00000386)
has
the
highest
of
Indeed, of the 18 different
categories in which Spreter was rated, “adaptability/
innovation” was the only one where Spreter was rated “Does Not
Meet Expectations.”
(Id. at ABC00000388)
In eight categories
Spreter was rated “Fully Meets Expectations” or “Exceeds
Expectations.”
(Id.)
Spreter’s final comments on her own evaluation state,
This past year has been by far the most difficult of
my career with huge shifts in values and priorities
at the top of the organization, loss of numerous long
time, valued relationships of those exited out of the
organization and/or department, lack of alignment or
misunderstandings about regional strategy, lack of
resources and support at the Corporate HR level and a
concern that we are heading too far in the direction
of a ‘spider’ organization.
(Pl’s Ex. 13 at p. ABC00000389) 7
Despite Spreter’s numerous and very lengthy comments
throughout her evaluation (her own comments were, on average, at
Spreter testified that she preferred the management style of
her former supervisor, who was replaced by Caffentzis. (Spreter
Dep. p. 176-77) Specifically, she stated, “[my former
supervisor] James did, I think, a great review for all his team.
James was very knowledgeable about sales and the business and
the financial end, and he was an excellent leader in terms of
motivating people. And A.J. [Ceffentzis] was not at the same
level.” (Id. at p. 177)
7
13
least twice as long as Caffentzis’), she made no comments
concerning Amerisource’s diversity policy, recruiting tactics,
or hiring decisions.
(Pl’s Ex. 13)
However, Spreter testified
at her deposition that, when she discussed her performance
review with Jay Webster, Webster told her “that [she] was seen
as negative and resistant to change because [she] was not
supportive of the diversity program.”
(Spreter Dep. p. 55)
In a March 4, 2011 email to Jay Webster, Caffentzis wrote,
“Jay, I believe that you were going to work on the new
assignment details for Jane.
this happen.”
The time has come for us to make
(Pl’s Ex. 31)
On May 6, 2011, Spreter emailed Caffentzis, “This email is
to confirm that I will not be accepting the transfer to
Corporate no[r] will I be signing the severance release as I
believe the termination of my position and employment is
retaliatory and discriminatory.”
(Pl’s Ex. 36)
Spreter’s failure-to-promote claims
Spreter asserts Amerisource discriminated against her when
Amerisource selected Michelle Bridges, a black female, to fill
the newly-created position of Chief Diversity and Inclusion
Officer in May 2010; and when Amerisource selected David
Navarro, a Hispanic male, to fill the newly-created position of
Senior Director, Shared Services.
14
It is undisputed that Amerisource never posted vacancy
announcements for these newly-created positions.
Sperter contends that both Michelle Bridges and David
Navarro were less qualified for the positions than she.
It is
undisputed that Spreter had been employed by Amerisource
significantly longer than both Bridges and Navarro.
C.
Amerisource also asserts two counterclaims.
The first
seeks a declaration that “Spreter voluntarily resigned from her
employment and that Spreter did not suffer an adverse employment
action.”
(Amended Answer ¶65)
The facts relevant to that claim
have been discussed supra.
The second is a breach of contract claim based on Spreter’s
retention of confidential human resources documents after she
left Amerisource’s employ.
Spreter signed a Confidentiality
Agreement that included a covenant not to disclose confidential
information:
While employed by the Company and thereafter, Employee
shall hold in strictest confidence and shall not,
directly or indirectly, orally or in writing, disclose
to any person or entity, or use for the benefit of
himself/herself
or
others,
any
Confidential
Information (defined below), except in connection
with and for the benefit of Company’s business and in
strict compliance with Company rules, policies and
directives, or otherwise as expressly permitted in
writing by the Company.
15
(Amended Counterclaim Ex. F)
The Confidentiality Agreement further provides that at the
conclusion of Spreter’s employment, she was required to return
all confidential information and company property in her
possession, custody or control:
5. Company Property. Employee agrees that Company
Property, as defined below, shall remain the sole
and exclusive property of the Company during and
after the termination of Employee’s employment, no
matter the reason for such termination and that,
upon termination, Employee shall disclose to the
Company all Confidential Information and Company
Property of which he/she may be aware, and shall
return the originals and all copies of all
Confidential Information and Company Property in
his/her possession, custody or control.
(Amended Counterclaim Ex. F)
Spreter’s Answer admits that she retained confidential
documents: “Plaintiff had documents related to her job at
Defendants at her home as a result of her almost thirty (30)
year career with Defendants and the fact that she, at times,
worked from home during that period.”
(Answer ¶ 52, 53)
Similarly, Spreter’s brief in opposition to Amerisource’s
Motion for Summary Judgment on their breach of contract
counterclaim admits that Spreter “inadverten[tly] fail[ed] to
return company documents that she had brought home over the
years she was employed by Defendants, to work on for the benefit
of Defendants.”
(Opposition Brief, p. 26)
16
II.
Summary judgment is proper if “the movant shows that there
is no genuine dispute as to any material fact and the movant is
entitled to judgment as a matter of law.”
Fed. R. Civ. P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986).
In deciding a motion for summary judgment, the Court
must construe the facts and inferences in a light most favorable
to the non-moving party.
Pollock v. Am. Tel. & Tel. Long Lines,
794 F.2d 860, 864 (3d Cir. 1986).
“‘With respect to an issue on which the non-moving party
bears the burden of proof, the burden on the moving party may be
discharged by ‘showing’ – that is, pointing out to the district
court – that there is an absence of evidence to support the
nonmoving party’s case.’”
Conoshenti v. Public Serv. Elec. &
Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex, 477
U.S. at 323).
The role of the Court is not “to weigh the
evidence and determine the truth of the matter, but to determine
whether there is a genuine issue for trial.”
Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
Anderson v.
“Only disputes
over facts that might affect the outcome of the suit under the
governing law will properly preclude the entry of summary
judgment.”
Id. at 249.
III.
17
The Court addresses Spreter’s claims of retaliation and
discrimination before turning to Amerisource’s counterclaims.
A.
As previously stated, Spreter brings her retaliation and
discrimination claims pursuant to Title VII, § 1981, and NJ LAD.
The same legal analysis applies for all three statutes.
Tavarez
v. Township of Egg Harbor, --- Fed. App’x ----, 2014 WL 3467606,
at *1 (3d Cir. July 16, 2014) (“Summary judgment motions in §
1981 actions are governed by the [same] burden shifting analysis
. . . that [is] generally applied in Title VII cases.”); Brown
v. Michaelowski, Civ. No. 13-4939, 2014 WL 3731336, at *5
(D.N.J. July 28, 2014) (applying the same burden-shifting
framework to NJ LAD claims). 8
1.
Amerisource moves for summary judgment on each element of
Spreter’s retaliation claim.
In particular, Amerisource spends
much time arguing that Spreter suffered no adverse employment
action because she voluntarily resigned.
8
According to
Because Spreter did not raise her failure to promote claims in
her administrative agency complaint, she brings those claims
under 42 U.S.C. § 1981 and NJLAD only. See Taylor v. Sibs, The
Bistro, 2014 WL 3509777, at *3 (D.V.I. July 15, 2014) (“Before
filing suit under Title VII, a plaintiff must exhaust her
administrative remedies by bringing a charge with the EEOC.”)
18
Amerisource, the job at corporate headquarters which Caffentzis
offered Spreter was a “lateral transfer” that would not alter
the terms or conditions of Spreter’s employment.
As discussed
further infra, issues of material fact preclude a finding that
Spreter suffered no adverse employment action.
However,
Spreter’s retaliation claim nonetheless fails because she has
not adduced sufficient evidence of retaliatory motive.
In order to establish a prima facie case of retaliation, an
employee must show that: (1) she engaged in a protected
activity; (2) he suffered an adverse employment action; and (3)
a causal link exists between the employee’s protected activity
and the purportedly adverse employment action. Marra v. Phila.
Hous. Auth., 497 F.3d 286, 300 (3d Cir. 2007).
Then, “the burden shifts to the employer to advance a
legitimate, non-retaliatory reason for its conduct.”
Moore v.
City of Philadelphia, 461 F.3d 331, 342 (3d Cir. 2006) (internal
quotation marks omitted).
If the employer carries its burden,
it will be entitled to summary judgment unless the plaintiff
produces “some evidence from which a jury could reasonably reach
[the] conclusions” both “that the employer’s proffered
explanation was false, and that retaliation was the real reason
for the adverse employment action.”
Id.
Spreter’s evidence fails to call into question the veracity
of her supervisor’s explanation for proposing that Spreter be
19
transferred to corporate headquarters.
Caffentzis’ evaluation
of Spreter noted that Spreter failed to meet expectations with
regard to adaptability and willingness to change under
Caffentzis’ new leadership.
Very shortly thereafter, Caffentzis
sought to place Spreter in a position he believed would be a
better fit for her-to him.
i.e., a position where she did not report
(Caffentzis Dep. p. 33-34, 48, 51, 55) 9
Moreover, nothing in the record supports even an inference
that Caffentzis sought to transfer Spreter in retaliation for
her nebulous, vague, and relatively brief “complaints” as they
related to Amerisource’s developing diversity policy. 10
Other
than the transfer offer itself-- the nature of which is not so
extreme or unusual to independently support an inference of
retaliation-- Spreter points to no evidence from which a
reasonable factfinder could conclude that Caffentzis was
antagonistic to her or harbored animus toward her.
Similarly,
viewing the record as a whole, no reasonable factfinder could
find the timing of the transfer offer so unusually suggestive as
to support an inference of retaliatory motive.
Caffentzis was “the sole decisionmaker” with regard to
offering Spreter a transfer or severance. (Caffentzis Dep. p.
47)
9
Spreter’s reliance on her own deposition testimony that Jay
Webster told her she was seen as resistant to change because of
her opposition to certain aspects of the diversity policy fails
because it is inadmissible hearsay.
10
20
Viewing the all of the facts in the light most favorable to
Spreter, and drawing all inferences in her favor, no reasonable
factfinder could conclude that Caffentzis had a retaliatory
motive.
Accordingly, Amerisource is entitled to summary
judgment as to the retaliation claim.
2.
Similarly, as to the failure to promote claims, Spreter’s
evidence cannot support a finding that Spreter’s gender, or
Michelle Bridges and David Navarro race and gender, were the
reasons she was not promoted.
To establish a prima facie case, Spreter must produce
evidence that she (1) is a member of a protected class 11; (2) is
qualified for the position; (3) was not hired for the position;
and (4) defendant failed to hire her under circumstances giving
rise to an inference of unlawful discrimination.
Jones v. Sch.
Dist. of Phila., 198 F.3d 403, 410 (3d Cir. 1999).
When a non-minority is alleged to be the victim of
discrimination, so-called reverse discrimination cases, the
first prong of the analysis is replaced with the requirement
that plaintiff put forward “sufficient evidence to allow a fact
finder to conclude that the employer is treating some people
less favorably than others based upon a trait that is protected
under Title VII.” Thompson v. Bridgeton Bd. of Educ., 9 F.
Supp. 3d 446, 455 (D.N.J. 2014); Iadimarco v. Runyon, 190 F.3d
151, 158 (3d Cir. 1999).
11
21
The summary judgment record fails to support an inference
that unlawful discrimination motivated Amerisource’s hiring
decisions.
The mere fact that the selected candidates were of a
different race or gender as Spreter, of course, is insufficient.
Spreter argues that a reasonable factfinder could infer a
discriminatory motive from the undisputed fact that neither
position was “posted.”
According to Spreter, a reasonable
juror could conclude that the selection of Michelle Bridges and
David Navarro for their respective newly-created positions was
pre-ordained.
But even if Amerisource admitted that it created
specific positions for specific employees (which it has not in
this case), it would not support an inference of discrimination
in view of the facts of this case.
Spreter’s reliance on Amerisource’s exploration of
diversity recruiting policies and its stated desire to increase
diversity in its workforce cannot raise an issue of disputed
fact as to Amerisource’s discriminatory motive.
Spreter points
to nothing in the record connecting this generalized desire to
achieve more diversity within the company to the specific
decisions made with respect to Michelle Bridges and David
Navarro.
Indeed, Spreter does not even identify who the
relevant decisionmakers were.
Spreter fails to adduce sufficient evidence of
discriminatory intent to raise an issue of material fact
22
requiring resolution by a jury.
Accordingly, summary judgment
for Amerisource is warranted.
B.
The Court briefly discusses Amerisource’s declaratory
judgment claim before turning to the breach of contract claim.
1.
In a retaliation suit, an adverse employment action is
anything that “well might have dissuaded a reasonable worker
from making or supporting a charge of discrimination.”
Burlington Northern & Santa Fe Ry. v. White, 548 U.S. 53, 64
(2006).
A reasonable factfinder could conclude that effectively
forcing Spreter out of her current position, and giving her no
choice to remain in the New Jersey office where she had worked
for over 20 years, might dissuade a reasonable worker from
supporting a charge of discrimination.
Viewing the record
evidence in the light most favorable to Spreter, a reasonable
factfinder could conclude that the April 29, 2011 letter was, as
Spreter contends, an “ultimatum”: accept the transfer, or sign a
release of all your claims and accept a severance.
By putting
Spreter in a position of having to choose between these two
options, a reasonable factfinder could conclude that
23
Amerisource’s actions could have made a reasonable worker think
twice before making a charge of discrimination.
The fact that
Spreter thereafter chose to quit and pursue litigation rather
than accept one of the two options does not change the Court’s
conclusion.
Amerisource’s Motion for Summary Judgment on its
declaratory judgment claim, seeking a declaration that Spreter
suffered no adverse employment action, will be denied.
In light
of the disposition of Spreter’s direct claims, however, the
declaratory judgment claim will be dismissed for lack of a live
case or controversy.
2.
As stated supra, Spreter admits that she retained
confidential Amerisource documents after her employment
terminated.
Nonetheless, she argues that: (1) Amerisource is
“selectively enforcing” the confidentiality agreement in
retaliation for Spreter’s protected activity (including filing
this lawsuit); (2) that the Confidentiality Agreement’s forum
selection clause selects Chester County, Pennsylvania as the
“exclusive venue” for litigation concerning breaches of the
agreement, therefore, by filing the counterclaim in this Court,
Amerisource has materially breached the agreement; and (3)
24
Amerisource has suffered no damages as a result of Spreter’s
breach.
All three arguments fail.
The Court addressed Spreter’s first argument when it
granted Amerisource’s Motion to Dismiss Spreter’s amended
retaliation claim based on the breach of contract counterclaim.
In any event, Spreter’s first argument is not a legally
cognizable defense to a breach of contract claim, and therefore
it fails here.
Second, violation of a forum selection clause is not a
material breach of contract under Pennsylvania law.
See Gillard
v. Martin, 13 A.3d 482 (Pa. Super. Ct. 2010) (defining material
breach as a “breach . . . so substantial as to justify an
injured party’s regarding the whole transaction as at an
end.”). 12
The “remedy” for violation of a forum selection clause
is not a breach of contract action, but rather a Motion to
Transfer Venue.
Spreter has made no such motion.
Lastly, Spreter’s damages argument fails because
Amerisource does not exclusively seek money damages for breach
of the confidentiality agreement. 13
It also seeks “equitable
The Confidentiality Agreement provides that it is governed by
Pennsylvania law.
12
By arguing that nominal damages for breach of contract are
available under Pennsylvania law, Amerisource has implicitly
admitted that it has not suffered any actual damages.
13
25
relief as permitted, including, an order requiring Plaintiff to
return Defendants’ property and restraining and enjoining
Plaintiff from continuing to violate her Confidentiality
Agreement.”
(Amended Answer and Counterclaims, Prayer for
Relief, ¶ B)
The above-discussion of Spreter’s arguments
notwithstanding, the Court notes that Spreter’s admitted breach
of the Confidentiality Agreement appears to be inadvertent; or
at least there is nothing in the record supporting an inference
that Spreter retained the confidential documents with the intent
to use them to her advantage-- indeed, to “use” them at all-either in this lawsuit or for some other reason.
To the extent
Spreter’s selective enforcement and damages arguments are
implicitly based on Spreter’s contention that she merely
possessed documents at her house because she sometimes worked
from home over the course of her 30 year employment with
Amerisource, a reasonable factfinder could agree.
However, lack
of intent is not a defense to a breach of contract claim,
therefore Amerisource’s Motion for Summary Judgment on its
breach of contract counterclaim will be granted; the Court will
direct Spreter to return to Amerisource all confidential
documents.
IV.
26
For the above-stated reasons, Amerisource’s Motion for
Summary Judgment on Spreter’s claims will be granted in its
entirety; Amerisource’s Motion for Summary Judgment on its
Counterclaims will be granted as to the breach of contract claim
and denied as to the declaratory judgment claim.
The
declaratory judgment claim will be dismissed for lack of a live
case or controversy.
An appropriate Order accompanies this
Opinion.
October 30, 2014
___s/ Joseph E. Irenas_____
Joseph E. Irenas, S.U.S.D.J.
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