PETRONZI v. COMPUTER SCIENCES CORPORATION et al
Filing
56
MEMORANDUM and ORDER granting in part and denying in part 34 Motion for Summary Judgment. Count I, Count III, Count IV, Count V, and Count VI are DENIED and Count II is GRANTED. Signed by Judge Peter G. Sheridan on 4/2/2018. (km)
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
)
JOHN PETRONZI,
Civil Action No:
15-cv-3593 (PGS)(TJB)
Plaintiff
)
)
v.
COMPUTER SCIENCES CORPORATION and
SCOTT WARKENTTN
Defendants.
)
)
)
)
)
MEMORANDUM
AND
ORDER
This matter comes before the Court on Defendants Computer Sciences Corporation and
Scott Warkentin’s Motion for Summary Judgment (ECF No. 34). In his Complaint, Plaintiff John
Petronzi alleges that Defendants wrongfully terminated him due to his age, disability, and filing a
grievance, in violation of the New Jersey Law Against Discrimination (LAD), N.J.S.A.
§
10:5-1.
He also claims that Warkentin violated the LAD by aiding and abetting this unlawful conduct.
Lastly, Plaintiffs Complaint alleges claims of breach of contract and breach of the covenant of
good faith and fair dealing, based on an incentive program initiated by Computer Sciences. For
the reasons discussed herein, Defendants’ Motion for Summary Judgment is granted in part and
denied in part.
BACKGROUND
Computer Sciences is a global provider of information technology and offers professional
services and solutions to corporate clients. (Defs’ Statement of Material Facts [DSOMF] at
¶ 2).
In July 2007, Plaintiff, who is now 68 years old, was hired as an at-will employee by Computer
Sciences. (Id. at
¶J 9-10).
For the bulk of his tenure at Computer Sciences, Plaintiff served as a
Client Relationship Executive (hereinafter, “CRE”) in the Financial Services Group, which later
I
became the Banking & Capital Markets Industry Group. (Id. at
¶
11). As a CRE, Plaintiff was
responsible for managing and growing the revenue and profits of various client accounts.
Essentially, Plaintiff was a sales person. (Id. at ¶J 12-13). In order to generate revenue, Computer
Sciences assigned Plaintiff, as well as other CREs, a certain quota for account revenue and new
contract signings, which the company referred to as Total Contract Value (hereinafter, “Sales
Quota”). (Id. at ¶ 13).
As a sales professional, Plaintiff was eligible to participate in Computer Science’s “Sales
Incentive Compensation Plan” (hereinafter, “Incentive Plan”), which awarded bonuses to sales
employees who exceeded certain goals. (Id. at ¶ 103). Under the Incentive Plan, each participant
had an individual Plan Assignment Agreement which described the participant’s “territory” and
“services”, and the credit that each participant would receive towards his or her bonus. (Id. at
¶
107). If an account was not identified in the participant’s Plan Assignment Agreement, he or she
would not receive credit for work performed on it. (Id. at
¶
109). Under Sections 7.1 and 7.2 of
the Incentive Plan, Computer Sciences reserved itself with discretion on how to interpret and
execute the incentive plan:
[Computer Sciences] has complete discretion and final authority to
7.1
administer and interpret this Plan and to resolve any disputes concerning its
administration or interpretation.
7.2
[Computer Sciences] reserves the right to assign or reassign Opportunities
at any time among [Incentive Plan] Participants as business conditions warrant. In
the event the [Incentive Plan] Participant is reassigned from an Opportunity prior
to a Contract Award, [Computer Sciences] may, in its discretion, grant partial or
total quota credit to the [Incentive Plan] Participants to reflect his/her contribution
to such Contract Award.
(ECF No. 34-19, “Incentive Plan” at 6).
In August 2013, Computer Sciences rolled out a new incentive program, the Million Dollar
Challenge, that offered bonuses for employees that surpassed certain goals on accounts listed in
2
the Plan Assignment Agreement. (Id. at ¶ 114). Later that month, Computer Sciences emailed all
eligible participants about this new incentive, which stated that eligible employees who “achieve
$1M (million) in [fiscal year 2014] revenue above the full-year forecast” are eligible for $15,000
for the first $1 million in revenue and an additional 1.5% bonus for every additional dollar above
the initial million. (ECF No. 34-24, “Million Dollar Challenge Email”).
During this period, UBS, one of Plaintiff’s accounts, exceeded forecasted revenues for that
Fiscal Year, which would have entitled participants in the account, such as Plaintiff, to a potential
bonus. (Id. at
¶
115). However, because the UBS account was “seriously underperforming,” no
CRE received the Million Dollar Challenge incentive on the UBS account. (Id. at
¶
116).
According to Computer Sciences, executive leadership cited the UBS account team’s history of
underperforming, the account’s substantial net negative revenue, and major customer satisfaction
issues, as reasons for declining to award the incentive. (Id. at ¶f 116-18).
On January 19, 2014, Plaintiff suffered a heart attack and did not attend work for about
seven business days. (Id, at ¶ 85-86). However, Plaintiff did not experience any lingering health
issues or restrictions as a result, nor did he apply for disability benefits thereafter. (Id at
¶J
86,
88). This being said, at 65 years old, Plaintiff claims that Computer Sciences made a series of
employment decisions and account reassignments to Plaintiff’s detriment, to ultimately justify his
termination the following year.
In April 2014, Plaintiff was removed from the UBS account and reassigned four “New
Logo” accounts, which are new accounts with companies that had not previously conducted
business with Computer Sciences. (P1’s Statement of Material Facts [PSOMFI at
¶J
39, 47-48).
According to Computer Sciences, Plaintiff was removed from the UBS account due to a “lack of
results,” despite the fact that the account had surpassed revenue projections the year before. (Id. at
3
¶ 40).
Rather than appoint another CRE to the UBS account, Computer Sciences eliminated the
CRE role altogether and, instead, assigned Tamara Kostova to serve as the global manager of the
account. (DSMOF at ¶ 33). At the time, Kostova was 38 years old, 27 years younger than Plaintiff.
(PSMOF at ¶ 45).
That same month, Defendant Scott Warkentin was hired by Computer Sciences to oversee
operation the Banking & Capital Markets Group. (Id. at ¶J 44-45). As part of his hiring, Warkentin
was responsible for reorganizing the group, improving the overall performance of the firm, and
increasing sales and revenue. (Id. at
¶ 46).
Specifically, Warkentin assessed the performances of
Computer Sciences’ sales employees, including Plaintiff. (Id. at ¶J 47-48).
The parties disagree about Plaintiffs performance. According to Defendants, Plaintiff was
not performing up to expectations; with the exception of UBS, Plaintiff failed to generate revenue
on any of his other accounts. (Id. at
¶ 25).
As such, John Wallace, Plaintiffs former supervisor,
noted in his assessment of Plaintiff that “[he] needed to prove himself within 90 days.” (Id. at
¶
49). Plaintiff, however, relies on Wallace’s Fiscal Year 2014 Performance Appraisal of Plaintiff,
which purportedly expressed positive views of Plaintiffs performance. (ECF No. 45-5 at 3 6-43,
“FY 2014 Appraisal”). In this appraisal, Wallace noted that, “[Plaintiff] worked diligently and
effectively to sustain the relationship with UBS despite significant headwinds caused by
[Computer Science’s] delivery performance issues and with underlying contract issues.” (Id. at 3).
However, in his overall appraisal comments, Wallace also acknowledged that Plaintiff did not
generate much revenue besides his UBS account; as such, Wallace concluded:
[Plaintiffs] #1 objective in FY20 15 is to leverage the foundation of executive
relationships he built and strengthened in FY20 14. He must executive [sic] against
a series of well thought out account plans and opportunity development and close
plans to deliver substantial new business results to meet or exceed his targets and
make material contributions to the Banking and Capital Markets Industry business.
4
(Id. at 8).
Nevertheless, as part of the Banking & Capital Markets Groups’ reorganization, Warkentin
began reassigning CRE employees to new account teams. (DSOMF at
¶ 5 1-52).
In August 2014,
Plaintiff was placed on Warkentin’s team, where he was seven years older than the next oldest
CRE. (PSOMF at
¶
52). As a member of Warkentin’s team, Plaintiff was assigned 70 new logo
accounts; the remaining CREs, however, were assigned significantly fewer accounts, the next
closest being 38 new logo accounts. (Id. at
¶
52, 57). In an August 6, 2014 email, Warkentin
addressed his new team and explained that the new account assignments had a retroactive start of
the second quarter, July 1, 2014. (Id. at ¶ 51; ECF No 34-33, “August 6, 2014 Email”). The email
also noted that Plaintiff and Tim Tolls, another CRE, would be assigned the majority of new logo
clients. (Id.). According to Computer Sciences, Plaintiff was assigned these new logo accounts
since he was removed from UBS and, therefore, “had the bandwidth to take on the new
assignment.” (Id. at
¶J 57-58).
In deposition, Wallace explained why he believed Plaintiff would
be suited for new logo accounts:
The new logo accounts, many of the new logo accounts [Plaintiff] was
assigned have businesses that are very similar and in some cases almost the same,
as the businesses that UBS is in or the business that RES Citizens is in or the
business that Credit Suisse is in. So, he has the requisite domain expertise and
experience.
In addition, the quote/unquote Wall Street client is one whereby, for
example, a CTO that he knew well from UBS moved and became the infrastructure
ClO at Morgan Stanley and he had other relationships, for example, at Morgan
Stanley which is why we made the decision to assign Morgan Stanley to him.
That’s the logic and decision-making Scott and I went through.
(ECF No. 34-31, “Wallace Deposition” at 99-100).
Computer Sciences also viewed this
reassignment as an opportunity for Plaintiff to generate greater sales revenue, since these new
accounts each had “potential.” (Id. at ¶ 61).
5
Plaintiff, however, viewed the new assignment as a demotion. (PSOMF at ¶J 5 5-56). From
his perspective, “despite his track record of success handling established accounts, he was now
being assigned the time-consuming task of developing 70 different [flew [l]ogo accounts.” (Id. at
¶ 55).
Moreover, according to Plaintiff, he was the only CRE on Warkentin’s team to be assigned
exclusively new logo accounts. (Id. at ¶ 56).
Despite this reassignment, Computer Sciences claims Plaintiffs work performance
continued to decline. (DSOMF at ¶J 64-65). By late November 2014, Plaintiff had only achieved
$2.57 million, or 9%, of his annual Sales Quota for the 2015 Fiscal Year; as such, Warkentin
scheduled a meeting with Plaintiff, to discuss his mid-year review and performance concerns. (Id.
at
¶J 64-67).
Dissatisfied with his performance, Warkentin explained to Plaintiff that he would
need to reach a Sales Quota of at least $10 million by the end ofthe third quarter or risk termination.
(Id. at ¶J 68-69). Put another way, Warkentin expected Plaintiff to realize earnings of $7.5 million
in less than one month. According to Plaintiff, to develop a new logo account takes anywhere
from twelve to eighteen months; so for Warkentin to impose a quota that quadrupled his revenue
in a single quarter was simply impossible. (PSOMF at
¶J 57,
61, 67). In addition, Plaintiff was
told that his FY 2015 Sales Quota had increased from $12 million to $36 million. (Id. at ¶ 74). No
other CRE’s Sales Quota tripled during that time. (Id. at ¶ 76).
Two weeks, later, on December 4, 2014, Plaintiff emailed Warkentin, regarding his mid
year review. (Id. at ¶ 70). In this email, Plaintiff expressed to Warkentin that he felt the negative
review was unfair and that “[t}he only explanation that makes any sense is that [Computer
Sciences] is trying to force me out of the Company because of my age (65) and recent health
condition to make room for younger employees.” (Id.). In response, Warkentin directed Plaintiff
to bring these allegations to the Employee Relations (ER) Department’s attention. (Id. at
6
¶
71).
The following day, December 5, 2014, Plaintiff forwarded his email communications with
Warkentin to the ER Department, which initiated an internal investigation of the complaint. (Id. at
¶j 72-73). Following the investigation, an ER Specialist concluded that Plaintiff’s claims were
unsubstantiated. (Id. at ¶ 74). After speaking with management and other witnesses, the Specialist
prepared a Summary Report of Investigation (hereinafter, “SRI”), which concluded:
Regarding Age Discrimination: [the Specialist] has found that the actions taken by
to be fair and
Mr. Warkentin as well as other members of management
and the documented production of each
consistent regarding the ages, the gender,
member of their sales team.
.
.
.
Mr. Petronzi claimed he was being replaced by a “38 year old woman with no
experience.” [The Specialist] found that an account Mr. Petronzi was previously on
was given to a female employee, 38 years old, but with substantial experience. [The
Specialist] has concluded that the hiring of this employee was o[f] merit and not
related to her age or gender.
Regarding Health Discrimination: At no point during any of the conversations with
Mr. Warkintin [sic] or any other management was Mr. Petronzi’s health mentioned
as being a factor in their decision-making. The focus of the decisions were strictly
numbers (past production and sales that were in the pipeline.) When [the Specialist]
mentioned the idea of Mr. Petronzi’s heart condition playing a role in their decisionmaking process, the reactions by Mr. Warkentin and other management were of
confusion and shock. [The Specialist] felt their reactions were genuine.
Additionally, Mr. Petronzi did not produce any documentation to back up this
claim.
(ECF No. 45-6 at 28, “SRI”). A week after submitting this grievance, Warkentin requested
permission from ER to terminate Plaintiff’s employment. (PSOMF at ¶ 108).
On February 17, 2015, Plaintiff was fired from Computer Sciences, citing poor
performance. (DSOMF at ¶ 78). According to Computer Sciences, Plaintiff had only attained 10%
of his assigned quota, which was in the lowest quartile of overall performance of CREs. (Id. at ¶J
78, 80). However, just two months prior to Plaintiff’s termination, Computer Sciences hired
Harold Westervelt, then 51, as a CRE. (PSOMF at
7
¶
122). Once Plaintiff was fired, Westervelt
was assigned new logo accounts similar to the accounts Plaintiff was assigned. (Id. at ¶ 123). For
that ensuing fiscal year, FY 2016, Westervelt was assigned a Sales Quota of $15.2 million, yet
failed to generate any revenue towards his Sales Quota. (Id. at ¶ 124). Despite failing to meet his
assigned quota, Westervelt was not fired. (Id. at
¶
125).
Plaintiff claims that Computer Sciences reassigned him to new logo accounts and
reassessed his quota to an insurmountable amount in order to justify terminating him for poor
performance when, in reality, it was due to his age, health, and grievance. (PSOMF at ¶ 107-114).
LEGAL STANDARD
Summary judgment is appropriate under Federal Rule of Civil Procedure 56(c) when the
moving party demonstrates that there is no genuine issue of material fact and the evidence
establishes the moving party’s entitlement to judgment as a matter of law. Celotex Corp.
V.
Catrett,
477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a
verdict for the non-movant, and it is material if, under the substantive law, it would affect the
outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a
motion for summary judgment, a district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the non-moving party’s evidence “is to be believed and
all justifiable inferences are to be drawn in his favor.” Marino v. Jndus. Crating Co., 358 F.3d 241,
247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp,, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
8
Express, Inc., 54F.3d 1125, 1130-31 (3dCir. 1995). “[U]nsupported allegations... andpleadings
are insufficient to repel summary judgment.” Schoch v. First Fid. Bancorp., 912 F.2d 654, 657
(3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial”).
Moreover, only disputes over facts that might affect the outcome of the lawsuit under
governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a
court determines, “after drawing all inferences in favor of [the non-moving party], and making all
credibility determinations in his favor.. that no reasonable jury could find for him, summary
.
judgment is appropriate.” Alevras v. Tacopina, 226 F. App’x 222, 227 (3d Cir. 2007).
ANALYS S
I. LAD Claims
1. McDonnell Douglas Burden Shiing Framework
Plaintiff argues that Computer Sciences and Warkentin discriminatorily fired him based on
his age, disability, and his grievance with the ER Department, contrary to LAD. When, as here,
there is no explicit discrimination alleged, generally one should analyze the LAD discrimination
claims under the three-step burden shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Bergen Commercial Bank v. Sisler, 723 A.2d 944, 954 (N.J.
1999). “[T]he entire purpose of the McDonnell Douglas prima facie case is to compensate for the
fact that direct evidence of intentional discrimination is hard to come by.” Price Waterhouse v.
Hopkins, 490 U.S. 228, 272 (1989) (O’Connor, J., concurring).
At step one of the McDonnell Douglas burden-shifting analysis, the plaintiff bears the
initial burden of establishing a prima facie case of discrimination. See McDonnell Douglas, 411
U.S. at 802; see also Victor v, State, 4 A.3d 126, 141 (N.J. 2010) (“the first step in that analysis
9
requires plaintiff to demonstrate that he or she can meet each of the elements of the prima facie
case”). Here, the plaintiff’s burden is rather modest. Id. However, the elements of the prima facie
case vary based on the form of discrimination alleged. Id.
At step two, if the plaintiff establishes a prima facie case, “the burden shifts to the employer
to articulate a legitimate, non-discriminatory reason for the adverse employment action.” Stouch
v. Twp. of Irvington, 354 F. App’x 660, 666 (3d Cir. 2009). “This burden is ‘relatively light’ and
is satisfied if the employer provides evidence, which, iftrue, would permit a conclusion that it took
the adverse employment action for a non-discriminatory reason.” Burton v. Teleflex Inc., 707 F.3d
417, 426 (3d Cir. 2013). However, at this stage, the employer does not have to prove that the
“articulated reason actually motivated the action;” rather, “[t]he proffered reason need only raise
a genuine issue of fact as to whether the employer acted impermissibly.” Shellenberger v. Summit
Bancorp, 318 F.3d 183, 189 (3d Cir. 2003).
Finally, at step three, if the employer articulates a non-discriminatory basis for the adverse
employment action, the burden shifts back to the plaintiff “to provide evidence from which a
factfinder could reasonably infer that the employer’s proffered justification is merely a pretext for
discrimination.” Burton, 707 F.3d at 426. “To make a showing of pretext, ‘the plaintiff must point
to some evidence, direct or circumstantial, from which a factfinder could reasonably either (1)
disbelieve the employer’s articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or determinative cause of the
employer’s action.” Id. at 427 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). As
such, to survive summary judgment, the plaintiff must either “present sufficient evidence to
meaningfully throw into question” the employer’s proffered reasons or “come forward with
sufficient evidence from which a factfinder could reasonably conclude that an illegitimate factor
10
more likely than not was a motivating or determinative cause of the adverse employment decision.”
Fuentes, 32 F.3d at 765.
Against this legal framework, the Court applies the McDonnell Douglas burden shifting
analysis to each of Plaintiffs LAD claims.
2. Age Discrimination
In Count I. Plaintiff alleges that Computer Sciences violated LAD by firing him based on
his age. Computer Sciences seeks summary judgment dismissal of this claim since Plaintiff fails
under each step of the McDonnell Douglas framework.
At step one, it is Plaintiffs initial burden to establish a prima facie case of age
discrimination. To assert a prima facie case of employment discrimination, Plaintiff must show
“(1) the plaintiff belongs to a protected class; (2) he/she was qualified for the position; (3) he/she
was subject to an adverse employment action despite being qualified; and (4) under circumstances
that raise an inference of discriminatory action, the employer continued to seek out individuals
with qualifications similar to the plaintiffs to fill the position.” Sarullo v. United States Postal
Serv., 352 F.3d 789, 797 (3d Cir. 2003); see also Clowes v. Terniinix Int’l, Inc., 538 A.2d 794, 805
(N.J. 1988). To give rise to an inference of age discrimination, the plaintiff must show that he
“was ultimately replaced by another employee who was sufficiently younger.” Smith v. City of
Allentown, 589 F.3d 684, 689 (3d Cir. 2009).
Here, neither party disputes that Plaintiff satisfies the first three elements: (1) at 68 years
old, he is a member of a protected class under LAD; (2) he was qualified as a CRE; and (3) he was
ultimately terminated from his employment. However, Computer Sciences argues that Plaintiff,
at step one, fails to allege any facts that give rise to an inference of age discrimination. The Court
disagrees. The record shows that just two months prior to Plaintiffs termination, Computer
11
Sciences hired Westervelt, who is 14 years younger than Plaintiff, as a CRE. Moreover, once
Plaintiff was fired, Westervelt was assigned New Logo accounts similar to the accounts Plaintiff
was assigned. As such, at this stage, the Court is satisfied that Plaintiff has established a prima
facie claim of age discrimination.
At step two, Computer Sciences contends that it has articulated a legitimate basis for firing
Plaintiff, due to his poor work performance. LAD does not prohibit employers from discriminating
against individuals “on the basis of competence, performance, conduct or any other reasonable
standards.” N.J.S.A.
§
10:5-2.1. Here, Computer Sciences argues that Plaintiff was not fired based
on his age, but due to his poor work performance. According to Computer Sciences, Plaintiff was
a part of the UBS account team, which historically underperformed; moreover, after being
reassigned to new accounts, Plaintiff fell woefully short of achieving his assigned quotas, which
was addressed at his mid-year review.
As such, the Court is satisfied that Plaintiffs poor
performance constituted a legitimate basis for justifying Plaintiffs termination. See, e.g., Hunter
v. Rowan Univ., 299 F. App’x 190, 195 (3d Cir. 2008) (poor performance is a legitimate basis for
adverse action); see also Finn v. J.B. Hunt Transp. Servs., No. 07-485 1, 2009 U.S. Dist. LEXIS
58044, at *14 (D.N.J. July 7, 2009) (same).
Finally, at step three, the Court finds that poor performance was a pretext for age
discrimination. As noted above, at this stage, it is again Plaintiffs burden to cast doubt on the
Computer Sciences’ articulated reason for termination. See Burton, 707 F.3d at 427. First, prior
to the November 2014 meeting with Warkentin, Plaintiff had never received any negative
performance reviews and, instead, routinely exceeded expectations.
While an “employees
assertions of his own good performance” are insufficient to survive summary judgment, the Third
Circuit has also held that:
12
Where, as here, [the plaintiff] asserts not only that he performed well but that he
never received any unfavorable criticism that his performance was poor or
inadequate, the jury could conclude that [the employer’s] failure to fault [the
plaintiffs] performance for the twenty years prior to the negotiations leading to his
discharge makes suspect its post hoc assertions of poor performance. This is
especially true when [the employer] has failed to produce any other evidence of
poor performance or make specific allegations of [the plaintiffs] deficiencies.
Sempier v, Johnson & Higgins, 45 F.3d 724, 731 (3d Cir. 1995). Here, just two months before
Plaintiffs termination, he was warned, for the first time, that his recent performance had failed to
meet Computer Science’s expectations. However, as Plaintiff points out, the reason for this drop
in performance was due to his recent reassignment to strictly new logo accounts and unrealistic
quota goals.
The pretextual basis for his termination becomes even more apparent when
considering the fact that he was not only assigned almost twice as many new logo accounts as any
other CRE, all of whom were younger than him, but he also had his Sales Quota triple during that
same timeframe. As such, when viewing the record in Plaintiffs favor, a reasonable trier of fact
could find that Plaintiff was fired because of his age, not poor performance.
Therefore,
Defendants’ motion for summary judgment dismissal of Count I is denied.
3. Disability Discrimination
In Count II, Plaintiff alleges that he was fired based on his disability, contrary to LAD. As
discussed above, the Court applies the McDonnell Douglas framework to this claim.
To establish a prima facie case of disability discrimination, the plaintiff must demonstrate:
“(1) that he is a member of a protected class; (2) that he was otherwise qualified and performing
the essential functions of the job; (3) that he was terminated; and (4) that the employer thereafter
sought similarly qualified individuals for the job who were not members of his protected class.”
Joseph N.J Transit Rail Operations Inc., 586 F. App’x 890, 892 (3d Cir. 2014). Unlike other
discrimination claims, a disability discrimination claimant must demonstrate, under the first
13
element, “that he or she qualifies as an individual with a disability, or who is perceived as having
a disability, as that has been defined by statute.” Victor, 4 A.3d at 142.
At step one of McDonnell Douglas, Computer Sciences argues that Plaintiff fails to state a
prima facie claim of disability discrimination, since he does not qualify as an individual with a
disability. LAD defines “disability” as, “physical or sensory disability, infirmity, malformation,
or disfigurement which is caused by bodily injury, birth defect, or illness
.
.
.
which prevents the
typical exercise of any bodily or mental functions or is demonstrable, medically or
psychologically, by accepted clinical or laboratory diagnostic techniques.” N.J.S.A.
§ 10:5-5.
Although not explicitly enumerated, New Jersey courts have recognized that a disability arising
from a heart attack falls within the meaning of N.J.S.A. 10:5-4.1. See Sarnowski v. Air Brooke
Limousine, 510 F.3d 398, 404 n.2 (3d Cir. 2007); see also Panettieri v. C. V Hill Refrigeration,
388 A.2d 630, 634 (N.J. Super. Ct. App. Div. 1978). Although neither party disputes the fact that
Plaintiff suffered a heart attack in January 2014, the Court finds fatal to Plaintiff’s disability
discrimination claim the fact that he fails to identify any disability that resulted from the heart
attack.
The Court notes that Sarnowski, 510 F.3d at 404, which Plaintiff cites, is factually
distinguishable. In Sarnowski, the plaintiff worked as a service manager for a limousine and
charter bus service company, and was responsible for the maintenance of the vehicles. Id at 401.
During his employment, the plaintiff suffered from coronary heart disease and, in October 2002,
underwent quintuple coronary artery bypass surgery. Id.
Two months later, December 2002,
Plaintiff received a written warning based on poor performance and was urged to improve his
work. Id. Nevertheless, in April 2003, the plaintiff began experiencing heart palpitations and a
coronary angiogram revealed that he had four more blocked arteries; the plaintiff was advised to
14
another heart
wear a heart monitor and that he may need to take an additional six weeks off for
ff was fired. Id.
surgery. Id. After informing his employers of these recent health issues, the plainti
held that
In dismissing the plaintiffs LAD disability discrimination claims, the district court
medical
plaintiff could not demonstrate that he was disabled, since he did not present expert
evidence. Id. at 403-04.
ff need not
In reversing the district court’s decision, the Third Circuit held that a plainti
support the
present expert testimony of a disability, but only “competent and legal evidence’ to
rd, the
diagnosis of a disability.” Id. at 404 (citing Clowes, 538 A.2d at 806). Under this standa
suffered a
court found sufficient evidence to create a material issue as to whether the plaintiff
rthy:
disability under LAD. Id. Specifically, the court found the following record evidence notewo
ary Artery
“records from [the plaintiffs] treating doctors that catalogued his diagnoses with Coron
c findings
Disease and Wolff-Parkinson-White syndrome, his October 2002 bypass surgery, specifi
the end of
by his heart surgeons, and the installation of an intracardiac defibrillator in his chest at
to find
April 2003.” Id. Here, however, there is no competent evidence presented for the Court
tion, Plaintiff
that Plaintiff has suffered a disability as a result of the heart attack. In his own deposi
he ever
conceded that he did not suffer any conditions that prevented him from exercise, or that
such, even
applied for disability benefits. (ECF No. 34-3, “Plaintiffs Deposition” at 326-27). As
disability, let
when viewing the record in Plaintiffs favor, he fails to establish that he suffered a
alone that he was fired because of it.
s, as
Nevertheless, even if Plaintiff could satisf,’ the first step under McDonnell Dougla
ts a legitimate
discussed above the Court is satisfied that, at step two, Computer Sciences presen
g to step three,
nondiscriminatory basis for terminating Plaintiff based on poor performance. Turnin
was a pretext
Plaintiff fails to present any competent evidence that suggests that his termination
15
for discriminating against him based on his disability. Simply put, the record is bereft of any facts
suggesting that Plaintiff’s heart attack played any role in Computer Sciences’ decision to fire him.
As such, summary judgment is granted as to Count IL
4. Retaliation
In Count VI, Plaintiff claims that Computer Sciences wrongfully retaliated against him for
complaining about his age and disability, contrary to LAD.
To state a prima facie retaliation claim under LAD, plaintiff must demonstrate that: “(1)
plaintiff was in a protected class; (2) plaintiff engaged in protected activity known to the employer;
(3) plaintiff was thereafter subjected to an adverse employment consequence; and (4) that there is
a causal link between the protected activity and the adverse employment consequence.” Victor, 4
A.3d at 141. Like age and disability discrimination claims, “[r]etaliation claims under the NJLAD
are analyzed under the McDonnell Douglas burden-shifting framework.” Bertolotti v. AutoZone,
Inc., 132 F. Supp. 3d 590, 605 (D.N.J. 2015).
At step one of McDonnell Douglas, Computer Sciences again argues that Plaintiff fails to
state a prima facie retaliation claim under LAD. Here, neither party disputes that Plaintiff satisfies
the first three elements. However, Computer Sciences contends that Plaintiff fails to allege a
causal link between his December 2014 grievance with the ER Department, wherein he alleged
age and disability discrimination, and his February 2015 termination. Plaintiff argues that given
the temporal proximity between his protected activity and his termination demonstrates the fourth
factor, causal connection. At this step, when viewing the evidence in Plaintiff’s favor, the Court
is satisfied that Plaintiff has stated a claim of retaliation. See Bertolotti, 132 F. Supp. 3d at 606
(“The close temporal proximity qualifies as unusually suggestive timing and is evidence of a causal
16
coimection between Plaintiffs request’ and the change in her employment.” (internal quotation
marks and citations omitted)).
Having determined that Plaintiff states a prima facie claim of retaliation, the Court next
considers whether Computer Sciences articulates a legitimate non-discriminatory basis for his
termination. Here, as with Counts land II, Computer Sciences contends that Plaintiff’s termination
was not based on his grievance, but his poor performance. In support of this assertion, Computer
Sciences notes that, prior to his grievance with the ER Department, Plaintiff had already been put
on notice of his poor performance and risk of being fired. The Third Circuit recently explained,
“[a]n employee cannot easily establish a causal connection between his protected activity and the
alleged retaliation when he has received significant negative evaluations before engaging in the
protected activity.” Ward v. Ingersoll-Rand Co., 688 F. App’x 104, 110 (3d Cir. 2017) (quoting
Ross v. Gilhuly, 755 F.3d 185, 194 (3d Cir. 2014)).
Finally, at step three, the Court is satisfied that there is sufficient evidence in the record
that ajuror could reasonably find that poor performance was pretextual. Significantly, given that
Warkentin sought permission to fire Plaintiff just a week after Plaintiff submitted his grievance,
and two weeks before the end of the third quarter of FY 2015, a reasonable fact finder could
conclude that Plaintiff’s termination was done in retaliation for Plaintiff having filed his grievance.
As such, summary judgment is denied as to Count VI.
5. Aiding and Abetting
In Count III, Plaintiff seeks to hold Warkentin individually liable for aiding and abetting
Computer Sciences to fire Plaintiff due to his age, disability, and filing his grievance.
LAD prohibits “any person, whether an employer or an employee or not, to aid, abet, incite,
compel or coerce the doing of any of the acts forbidden under this act.” N.J.S.A.
17
§ 10:5-12(e).
that ‘(1) the
“[un order to hold an employee liable as an aider or abettor, a plaintiff must show
(2) the defendant
party whom the defendant aids must perform a wrongful act that causes an injury;
y at the time that
must be generally aware of his role as part of an overall illegal or tortious activit
ntially assist the
he provides the assistance; [and] (3) the defendant must knowingly and substa
Hurley v. Atlantic
principal violation.” Tarr v. Ciasulli, 853 A.2d 921, 929 (N.J. 2004) (quoting
ntin provided
City Police Dep ‘t, 174 F.3d 95, 127 (3d Cir. 1999)). In determining whether Warke
aged, (2) the
“assistance,” courts should consider several factors: “(1) the nature of the act encour
t at the time
amount of assistance given by the supervisor, (3) whether the supervisor was presen
of mind of
of the asserted harassment, (4) the supervisor’s relations to the others, and (5) the state
the supervisor.” Id. (citing Restatement (Second) of Torts
§
876(b) comment d (1979)).
g claim.
Here, the Court is satisfied that the record supports Plaintiff’s aiding and abettin
due to his age
First, as discussed above, Plaintiff has sufficiently demonstrated that he was fired
Warkentin played
and filing his grievance. Second, and more importantly, the record reflects that
Plaintiff to the New
a prominent role in Plaintiff’s termination. He was responsible for reassigning
Logo accounts, and was the one who criticized his recent performance.
Moreover, just a week
ff fired. As
after Plaintiff filed his retaliation claim, Warkentin sought permission to have Plainti
able factfinder
such, when considering the record in the light most favorable to Plaintiff, a reason
due to his age
could conclude that Warkentin played as substantial role in having Plaintiff fired
and grievance. As such, sun-irnary judgment as to Count III is denied.
II. Breach of Contract Claims
1. Breach ofContract
Plaintiff
In Count IV, Plaintiff alleges that Computer Sciences breached their contract with
a breach of contract
by failing to pay him the Million Dollar Challenge incentive. “To prevail on
18
claim, a party must prove a valid contract between the parties, the opposing party’s failure to
perform a defined obligation under the contract, and the breach caused the claimant to sustained
damages.” EnviroFinance Group, LLC v. Envtl. Barrier Co., LLC, 113 A.3d 775, 787, (N.J. Super.
Ct. App. Div. 2015). Computer Sciences argues that the Million Dollar Challenge email is an
invalid contract since it is insufficiently definite. The Million Dollar Challenge email states in its
entirety:
3. The Million Dollar Challenge and Software License Incentive
Coverage
—
New SPIFFs for
Effective August 22, coverage professionals in all industries and regions are
eligible for the following incentives (SPIFFs):
Coverage professionals in all industries and regions who achieve $1 M in
FY14 revenue above the full-year forecast submitted this month for their
account(s) are eligible for the Million Dollar Challenge incentive:
•
•
•
•
•
•
•
•
$15,000 paid to coverage professional for first $1M incremental
revenue.
Additional payment of 1.5% for every additional $1 above the initial
$IM.
Incremental revenue is defined as FY14 revenue above the 4-8 forecast,
which includes actuals through fiscal period 4 and forecast from fiscal
period 4 to fiscal period 12.
Budgeted Currency Exchange Rate (BD) is used to calculate
incremental revenue achievement.
Incentive will be calculated and paid at the end of FY14.
CSC will fund an offsite for manager of the team with highest
incremental revenue results.
Managers of sales teams are not eligible for this incentive.
AGMs, AMs & CRPs are eligible for accounts where a forecast is
currently in place.
(ECF No. 34-24, “Million Dollar Challenge Email”). Here, the Court understands the Million
Dollar Challenge email to constitute a unilateral contract, which “involve[s] only one promise and
[is] formed when one party makes a promise in exchange for the other party’s act or performance.”
Giant Eagle, Inc. v. Comm ‘r, 822 F.3d 666, 673 (3d Cir. 2016). To be enforceable, the contract
19
“must be sufficiently definite ‘that the performance to be rendered by each party can be ascertained
with reasonable certainty.” Weichert Co. Realtors v. Ryan, 608 A.2d 280,285 (N.J. 1992) (citation
omitted). “Thus, if parties agree on essential terms and manifest an intention to be bound by those
terms, they have created an enforceable contract.” Id.
“An essential characteristic of an
enforceable contract is that its obligations be specifically described in order to enable a court or a
trier of fact to ascertain what it was the promissor undertook to do.” Malaker Corp. Stockholders
Protective Comm. v. First Jersey Nat’l Bank, 395 A.2d 222, 227 (N.J. Super. Ct. App. Div. 1978).
Computer Sciences does not contest the fact that Plaintiff, as a CRE, was eligible to
participate in the Million Dollar Challenge, or that his UBS account’s generation of$1 1.62 million
made him eligible for the bonus. Instead, Computer Sciences argues that the terms of the Million
Dollar Challenge were too ambiguous to be deemed enforceable. Specifically, Computer Sciences
contends that because the Million Dollar Challenge email does not specify which accounts made
a “coverage professional” eligible, nor did it define key terms such as “revenue,” “achieve,” and
“eligible,” it lacks essential terms to render the contract enforceable. “Essential terms are those
that the parties would reasonably regard as vitally important elements of their bargain, an inquiry
that depends primarily on the intent of the parties.” Rauch v. Rauch, No. A-4745-14T4, 2017 N.J.
Super. Unpub. LEXIS 2177, at *15 (N.J. Super. Ct. App. Div. Aug. 30, 2017) (quoting McCoy v.
Alden Indus., 469 S.W.3d 716, 725 (Tex. Ct. App. 2015)). Moreover, in New Jersey, “where there
is ambiguity, the words are construed against the drafter.” In re Cmty. Med. Ctr., 623 F.2d 864,
866(3dCir. 1980).
Here, the Court is satisfied that the terms of the Million Dollar Challenge email are
sufficiently defined, rendering it enforceable. The Million Dollar Challenge email sets forth: (1)
when the incentive becomes effective; (2) who was eligible to participate; (3) which accounts are
20
covered under the program; (3) how much revenue must be generated; and (4) how the bonus will
be calculated.
Simply put, the Court finds that the Million Dollar Challenge is not “[a] contract
so vague in the description of the performance of each party thereto [that it] is incapable of remedy
at law or in equity.” Malaker Corp., 395 A.2d at 227. Computer Sciences ambiguity argument is
further undermined by the fact that it recognized that Plaintiff was entitled to the incentive, yet
chose to deny the bonus not because it was ambiguous, but because the UBS account had
historically underperformed. The Court also notes that another federal court analyzed this Million
Dollar Challenge and came to the same conclusion that it is an enforceable unilateral contract. See
Poage
i
Computer Scis. Corp., No. 14-2602, 2015 U.S. Dist. LEXIS 167545, at *5l3 (D. Ariz.
Dec. 14, 2015).
Lastly, Computer Sciences’ argument that, under the Incentive Plan, they reserved
discretion to distribute bonuses is without merit. Nowhere in the Incentive Plan does it say that it
covers any other incentive program beyond those discussed therein, which did not include the
Million Dollar Challenge. Nor does the Million Dollar Challenge email mention that it is subject
to the Incentive Plan terms and conditions.
To sum up, the Court finds that the Million Dollar Challenge email constituted an
enforceable unilateral contract between Computer Sciences’ and Plaintiff. Computer Sciences
promised a bonus to employees, such as Plaintiff, who generated revenue beyond normal forecasts
and Plaintiff accomplished that goal. Therefore, Plaintiff is entitled to compensation for his
performance.
2. Breach ofthe Duty of Good Faith and Fair Dealing
21
In Count V, Plaintiff alleges that Computer Sciences breached their duty of good faith and
fair dealing, since they refused to recognize their obligation, under the Million Dollar Challenge
incentive, to pay Plaintiff.
Under New Jersey law, every contract contains an implied covenant of good faith and fair
dealing. Sons of Thunder v. Borden, Inc., 690 A.2d 575, 587 (N.J. 1997). “In every contract there
is an implied covenant that ‘neither party shall do anything which will have the effect of destroying
or injuring the right of the other party to receive the fruits of the contract” Id. (citation omitted).
“In order to state a claim for breach of the implied covenant, a plaintiff must allege that: (1) a
contract exists between the plaintiff and the defendant; (2) the plaintiff performed under the terms
of the contract [unless excused]; (3) the defendant engaged in conduct, apart from its contractual
obligations, without good faith and for the purpose of depriving the plaintiff of the rights and
benefits under the contract; and (4) the defendanCs conduct caused the plaintiff to suffer injury,
damage, loss or harm.” TBI Unlimited, LLC v. Clear Cut Lawn Decisions, LLC, No. 12-3355, 2014
U.S. Dist. LEXIS 107756, at *7 (D.N.J. Aug. 5,2014) (citing Wade v. Kessler Inst., 778 A.2d 580,
586 (N.J. Super. Ct. App. Div. 2001)). In order to demonstrate that a defendant has breached this
covenant, the plaintiff must demonstrate “that a defendant has acted with bad motive or intention.”
Cargill Global Trading, 706 F. Supp. 2d 563, 580 (D.N.J. 2010). “A plaintiff must ‘provide
evidence sufficient to support a conclusion that the party alleged to have acted in bad faith has
engaged in some conduct that denied the benefit of the bargain originally intended by the parties.”
Id. (quoting 23 Richard A. Lord, Williston on Contracts
§
63:22 at 5 13-14 (4th ed. 2009)).
Here, when reviewing the record in the light most favorable to Plaintiff, a reasonable
factfinder could conclude that Computer Sciences breached their duty of good faith and fair
dealing. As discussed above, the Million Dollar Challenge constituted an enforceable unilateral
22
contract, to which Plaintiff was entitled to compensation. Despite satisfying the necessary terms
to receive the incentive, Computer Sciences “pulled the rug out” from underneath Plaintiff, by
declining to award any CRE assigned to the UBS account the bonus. As such, whether Computer
Sciences acted in bad faith in denying the Million Dollar Challenge is a material issue of fact best
suited to be resolved at trial. Therefore, Count V survives summary judgment.
ORDER
Having carefully reviewed and taken into consideration the submissions of the parties, as
well as the arguments and exhibits therein presented, and for good cause shown, and for all of the
foregoing reasons,
IT IS on this
nd
2
day of April, 2018,
ORDERED that Defendants’ Motion for Summary Judgment is GRANTED in part and
DENIED in part as follows:
(1) Count I (Age Discrimination) is DENIED
(2) Count II (Disability Discrimination) is GRANTED
(3) Count III (Aiding and Abetting) is DENIED
(4) Count IV (Breach of Contract) is DENIED
(5) Count V (Breach of the Covenant of Good Faith and Fair Dealing) is DENIED
(6) Count VI (Retaliation) is DENIED
PETER G. SHERIDAN, U.S.D.J.
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