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May 2, 1989

EARL H. BAXTER, Plaintiff,

The opinion of the court was delivered by: FISHER

 Plaintiff, Earl H. Baxter, instituted this employment discrimination suit on January 21, 1988, against his former employer, A.T.&T. Communications ("A.T. & T."), pursuant to Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e-5(g) ("Title VII") and the New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-12 et seq. ("NJLAD"). Specifically, plaintiff alleges that A.T. & T. engaged in a pattern and practice of employment discrimination on the basis of race by failing to train him properly when he was a trainee in its computer training program and by failing to place him in a position of equal rank and comparable pay when he failed to complete the training program successfully, treatment which was not accorded to similarly situated nonminority employees and which resulted in his termination from the company in February, 1985. The matter is now before the court on motion by A.T. & T. for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure.

 The following facts are undisputed. Plaintiff began his employment with the Bell System in November, 1967, as an electronic technician for Western Electric. During the time he was at Western Electric, plaintiff received several promotions, until he achieved the position of quality assurance and complaint investigator. In 1976, plaintiff made a lateral transfer to A.T. & T., entering the company as a computer trainee in data processing at the M level. In May, 1983, plaintiff entered A.T. & T.'s Program Basic Training (the "PBT program") and was classified as an MPS-22, a computer-programming trainee assigned to work on various aspects of computer programming. In August, 1983, after completion of the training portion of the program, plaintiff was assigned to a group supervised by Patricia Schiros. His first assignment was to create a COBOL program.

 In his deposition taken on August 18, 1988, plaintiff concedes that Ms. Schiros and his project leader were displeased with the results of his first assignment, both with the work product itself and with the length of time he took to complete it. After corrections had been made on this program, plaintiff was assigned a new 800 program to write. After completing this second program, he submitted it to Pat Schiros. Shortly thereafter, plaintiff's new project leader, Angela Motley, informed him that the specifications contained discrepancies that had to be revised. Although the corrections were made, both Ms. Schiros and Ms. Motley expressed their displeasure at the length of time plaintiff took to complete the program. Plaintiff admits that as early as November, 1983, he was aware that his superiors believed that he was not meeting their expectations.

 Following this, plaintiff spent a short time training on FORTRAN programs. In March, 1984, plaintiff received a 10-month performance review. His performance was rated as marginal, and a development program was established at that time to aid him in improving his oral and written communication skills. Subsequent to that appraisal, plaintiff met with Juanita Davis, his district manager, and discussed the development program. She informed him that he would be placed in a more structured work environment and given specific guidelines and time goals to meet. On August 1, 1984, as a result of his complaints concerning Ms. Schiros's alleged unfair treatment of him, it was agreed that plaintiff would be transferred to another group, headed by William A. Wineburgh, following his return from military leave on August 13, 1984. Plaintiff was no longer subject to Ms. Schiros's supervision after this transfer. Plaintiff was also made aware that he would be placed on a three-month probation following his transfer, and that if improvement in the ability to perform at the expected level was not demonstrated he would be removed from the programming environment. Again, plaintiff was given very detailed instructions as to what his expected level of performance included.

 On November 27, 1984, after having monitored plaintiff for a period of just over three months, plaintiff's new supervisor recommended that he be removed from the programming environment. This evaluation was based on Wineburgh's observation that plaintiff's oral and written communications were still poor; he lacked the skills which he should have acquired from the basic PBT program and, despite further on-the-job coaching, he was late with assignments, and those assignments frequently needed revision. In particular, plaintiff took twice as long as expected to develop a COBOL program, and the program needed revision after completion. The November 27, 1984, evaluation stated that plaintiff's new supervisor believed that he lacked the understanding and ability needed to comprehend basic concepts which were a prerequisite for success as a computer programmer. Juanita Davis, the district manager, concurred in this evaluation, and the development program was discontinued at that time. Plaintiff was advised to begin looking for another position within A.T. & T.

 Plaintiff concedes that his district manager, Juanita Davis, made repeated efforts to locate another, comparable position for him. In addition, he began searching for another job by making inquiries and answering job advertisements within the company. Ms. Davis advised the plaintiff on February 4, 1985, that she was unable to locate a position for him at his current level (SG-2) or one level lower (SG-1). In addition, plaintiff was informed that his prior position, tape librarian, had been reclassified as a TG-5. Initially, plaintiff agreed to accept a nonmanagement position at either a TG-5 or TG-6 level; however, on February 5, 1985, plaintiff retracted his agreement to accept a nonmanagement position. At this time, he reiterated his awareness that declining a nonmanagement position could result in a separation from the company altogether.

 Plaintiff commenced this action on January 21, 1988, charging that his termination from A.T. & T. was the result of racial discrimination. He bases his claim on the following allegations: (1) that while plaintiff received inadequate and improper training due to a constant change in project leaders, similarly-situated nonminority trainees had the benefit of being supervised by the same project leader throughout the program; (2) that similarly-situated nonminority trainees were not assigned the difficult COBOL program, which resulted in disparate treatment; (3) that racial animus was implicit in his treatment at the hands of his original supervisor, Ms. Schiros, because of her constant questioning about the excessive time plaintiff spent in the training portion of the PBT program and her general lack of patience and discouraging attitude, which carried over to his next supervisor by virtue of their friendship; (4) that his superiors showed a lack of compassion during the latter part of the training program, when he was beset with hardships because of multiple family illnesses and deaths, by requiring him to call in on vacation and death benefit days taken in order to care for his family, and by instructing his co-workers not to communicate with him upon his return.

 A.T. & T.'s motion is based on its contention that because the record, including plaintiff's deposition testimony itself, clearly establishes that plaintiff was unqualified and unable to perform as a computer programmer, plaintiff cannot prove two of the necessary elements of his claim -- that he was performing his job at the level expected of him and that nonminority employees with comparable work records were retained, while he was terminated -- thus precluding plaintiff from establishing a prima facie case of racial discrimination under Title VII. A.T. & T. further contends that even if plaintiff were able to make out a prima facie case of discrimination, the record is replete with evidence that A.T. & T. had a legitimate reason for removing plaintiff from the computer programming environment -- nonperformance -- and that plaintiff will be unable to carry his burden of demonstrating that this proffered reason is pretextual or unworthy of credence. Hence, A.T. & T. requests that summary judgment be entered in its favor, dismissing the complaint as a matter of law.

 Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment shall be granted:

if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

 The Rule directs the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party bears the ultimate burden of proof at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986); Spangle v. Valley Forge Sewer Auth., 839 F.2d 171, 173 (3d Cir. 1988).

 The current standard for summary judgment requires that before judgment is entered as a matter of law, there be no "genuine" issue of "material" fact; however, the mere existence of some alleged factual dispute between the parties is an insufficient basis on which to deny a motion for summary judgment. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A fact is "material" only if it will affect the outcome of a lawsuit under the applicable law, and a dispute over ...

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