The opinion of the court was delivered by: LECHNER
ALFRED J. LECHNER, UNITED STATES DISTRICT JUDGE.
This is an action in which a former employee alleges her employer discriminated against her on the basis of age and sex by failing to promote her in violation of the Age Discrimination in Employment Act ("ADEA") and Title VII of the Civil Rights Act of 1964 ("Title VII") The plaintiff also alleges violations of New Jersey statutory and common law. In this motion the defendant moves to dismiss the complaint on various grounds or in the alternative for summary judgment. For the following reasons the motion for summary judgment is granted.
Plaintiff Elizabeth J. Crandall, M.D. ("Crandall") is a resident of New Jersey and is a physician licensed in New Jersey and New York. Complaint, para. 2; Affidavit of Elizabeth J. Crandall, M.D. ("Crandall Aff."), para. 1. Crandall received her medical degree from Columbia University College of Physicians and Surgeons in 1950. Crandall Aff., para. 3. Defendant The Prudential Insurance Company of America ("Prudential") is a New Jersey corporation with its principal place of business in Newark, New Jersey. Complaint, para. 3.
For approximately twenty years prior to her employment with Prudential, Crandall was in private practice. Crandall Aff., para. 3. In 1972 Crandall joined Prudential as a part-time insurance physician. Id. at para. 3. Crandall joined the full-time medical staff of Prudential as an associate medical director in June, 1975. Id. at para. 5. Crandall initially worked out of a Prudential office in Newark. Deposition Transcript of Elizabeth J. Crandall ("Tr."), 16-17. In 1976 Crandall was transfered to the South Plainfield office. Tr. 20-21. Her office was transferred to Prudential's Woodbridge office around the beginning of 1984. Transcript of Oral Argument, July 20, 1988 ("7/20/88 Tr."), at 7.
Crandall's husband, Charles E. Crandall, M.D. ("Crandall's husband"), is also a graduate of Columbia University College of Physicians and Surgeons and a physician licensed in New Jersey. Complaint, para. 11. Crandall's husband joined Prudential in 1976 as an associate medical director. Id., para. 10. In November, 1978 the titles of all associate medical directors at Prudential, including those of Crandall and Crandall's husband, were changed to medical director. Id. at para. 7; Tr. 32.
Crandall states from November, 1978 to May, 1985 there were several openings at the functional vice president
level at Prudential. Crandall Aff., para. 8. Crandall states she was fully qualified for these positions and she had either "generally or specifically" expressed her interest and availability for the positions. Id. Crandall avers Prudential denied her each of these promotions and denied her requests to transfer to advance her career. Id. at para. 9. According to Crandall, in some instances Prudential required her to perform the functions of higher level positions without actually promoting her. Id.
Crandall asserts Prudential, at an unspecified time in 1985, offered her a lucrative early retirement plan. She states she discussed her potential for promotion with Prudential's management and based on their positive reaction and encouragement of her desired advancement to functional vice president, Crandall decided to forego early retirement. Id. at para. 11.
In May, 1985 Prudential offered Crandall a newly created position as Medical Director for Cost Containment, Group Department. This position was offered initially at the medical director level with a salary of $ 68,700.00. Crandall Aff., Ex. B. In a letter to Prudential, dated June 11, 1985, Crandall stated: "I am ready to accept your offer if it comes with the rank of functional Vice President and the benefits which accrue from that title." Defendant's Exhibits ("Ex.") D-9.
Around June 21, 1985 Prudential informed Crandall that due to organizational changes, the functions of the position of Medical Director for Cost Containment, Group Department had been changed. Crandall Aff., Ex. C. The title of the new position being offered to Crandall was Medical Director, PACRS, GFSO. The position continued to be offered at the director level with a salary of $ 68,700.00. Id.
In a letter, dated June 21, 1985, communicating this change in the position offered to Crandall, the Vice President of Medical Services at Prudential, Dan Dragalin ("Dragalin"), stated:
With respect to future potential, as we discussed, I fully expect the position under consideration to be an FVP [functional vice president] level position in April, 1986. If you accept the position being offered, I can, at this time, realistically see no reason why you would not continue to occupy the position in April, 1986 (unless job performance is unsatisfactory -- which I surely do not expect).
In a telephone conversation with Dragalin around June 27, 1985, Crandall apparently declined this second offer because she was not offered an immediate promotion to functional vice president. Tr. 179. In a confirming letter, dated July 1, 1985, Dragalin stated: "Our offer of a position for you here at GFSO in the form stated in my letter of June 21, 1985 is final and non-negotiable. I am genuinely sorry you will not consider acceptance without a concurrent offer of a promotion to FVP [functional vice president] level. As I stated, I am sure that such a promotion is in the cards for 4/86, but I am unable to effect that promotion at this time." Ex. D-11.
Crandall asserts that the offer of the new position without a promotion or salary increase was "an intolerable affront" which forced her to resign. Crandall Aff., para. 14. Crandall's last day of work with Prudential was August 2, 1985. Tr. 216. She continued to receive full salary and benefits from Prudential until September 9, 1985. Tr. 216-17. Beginning on September 9, 1985 Crandall began to receive a pension from Prudential. Tr. 217.
At the time she was offered the new position, Crandall was fifty-eight years old. Complaint, para. 22. Crandall alleges she was one of the older medical officers at Prudential and that one Prudential official later made references to "dead wood" when describing the future opportunities which could be created as a result of an early retirement program.
Crandall Aff., Ex. E.
Upon her resignation Crandall immediately secured employment with the American International Life Assurance Company of New York ("American"). She had apparently been actively seeking employment with American prior to her resignation. Tr. 203-05. Crandall began working at American on August 5, 1985. Tr. 203. Her starting salary at American was $ 75,000.00.
Crandall asserts she learned sometime in 1986 that the position which had been offered to her at Prudential became three separate positions for three physicians. Crandall Aff., para. 12. Crandall also alleges Prudential placed an advertisement for a position entailing only some of her previous responsibilities but at a salary $ 13,000.00 higher than the salary Prudential had paid her. Id., Ex. F; Complaint, para. 31.
Crandall claims it was not until July, 1986 that she realized she had been deliberately treated unfairly by Prudential. Crandall Aff., para. 16. On August 5, 1986 she sought the advice of counsel. Id. at para. 17. Prior to her consultation with counsel, Crandall states she was neither aware of her right to file charges with the EEOC nor was she aware of any of her causes of action. Id. at para. 18.
Crandall also states: "At no time during my employment at Prudential did I ever receive or see a notice posted concerning my rights under either the federal or state laws." Id. at para. 19. Prudential has submitted affidavits of two personnel administrators. The personnel administrator at Prudential's South Plainfield office from January, 1982 through October, 1983 states that notices advising employees of their rights under the ADEA, Title VII and the New Jersey Law Against Discrimination were posted on the Employment Center's bulletin board located on the first floor and she observed these notices on a daily basis. Affidavit of Ginny Tolan ("Tolan Aff."), paras. 3-5. The personnel administrator at Prudential's Woodbridge office from May, 1984 to December, 1987 states the same notices were posted on the Employment Center's bulletin board and on the employee cafeteria's bulletin board both located on the first floor. She states she also observed the notices on a daily basis. Affidavit of Mary Podolak ("Podolak Aff."), paras. 2-5.
Crandall further states she delayed filing charges against Prudential out of fear of retaliation by Prudential against her husband who was still employed by Prudential. Id., para. 20. After Crandall's husband resigned from Prudential, Crandall filed charges against Prudential with the EEOC on December 19, 1986. Id. at para. 21. Crandall filed charges with the New Jersey Civil Rights Division on December 23, 1986. Id.
On September 9, 1987 Crandall filed a complaint in this court. The complaint alleges federal question jurisdiction under Title VII and the ADEA. The complaint also alleges pendent jurisdiction over the New Jersey statutory and common law claims. para. 1.
I. Summary Judgment Standard
Both parties have submitted documents in addition to the pleadings which are sufficient to allow a determination of this motion on summary judgment. Accordingly, I shall apply the summary judgment standard rather than the standard for a motion to dismiss for failure to state a claim. See Fed. R. Civ. P. 12(b); Goldman v. Belden, 754 F.2d 1059, 1066 (2d Cir. 1985); Mortensen v. First Federal Savings, 549 F.2d 884, 891 (3d Cir. 1977).
To prevail on a motion for summary judgment, the moving party must establish "there is no genuine issue as to any material fact and that [it] is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The district court's task is to determine whether disputed issues of fact exist; but the court cannot resolve factual disputes in a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249-50, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). All evidence submitted must be viewed in a light most favorable to the party opposing the motion. See Matsushita Elec. Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986).
Although the summary judgment hurdle is a difficult one to overcome, it is by no means insurmountable. As the Supreme Court has stated, once the party seeking summary judgment has pointed out to the court the absence of a fact issue,
its opponent must do more than simply show that there is some metaphysical doubt as to the material facts. . . . In the language of the Rule, the non-moving party must come forward with 'specific facts showing that there is a genuine issue for trial.' . . . Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no 'genuine issue for trial.'
Matsushita, 475 U.S. at 586-87 (emphasis in original, citations and footnotes omitted).
The Court elaborated in Anderson v. Liberty Lobby, Inc., 477 U.S. at 249-50 (citations omitted): "If the evidence [submitted by a party opposing summary judgment] is merely colorable. . . or is not significantly probative . . . summary judgment may be granted." The Supreme Court went on to note in Celotex Corp. v. Catrett, 477 U.S. 317, 323-24, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986) (footnote omitted): "One of the principal purposes of the summary judgment rule is to isolate and dispose of factually unsupported claims or defenses, and we think it should be interpreted in a way that allows it to accomplish this purpose." Thus, once a case has been made in support of ...