the spring of 1988, plaintiff attempted to show that alleged claims of incompetence by Krebs and William Chesleigh, a network news producer, were false and inaccurate. Plaintiff approached Tom Wolzien, vice-president of editorial services, and complained that there was evidence of discrimination in the NBC News New York and Washington units where he had once worked. Eventually, Brander Pettway, the then-vice president of NABET Local 31, wrote to Mr. Wolzien on plaintiff's behalf. Pettway's letter stated that he was present when the mistakes were made on Nightly News and that plaintiff was getting a "bum rap." Martinez Cert. at P 25.
Beginning late October of 1988, plaintiff attempted to obtain employment at CNBC, Inc., which is a wholly-owned subsidiary of NBC. Plaintiff never gained employment with CNBC and claims that CNBC has given preferential treatment to far less experienced, white, non-Hispanic, younger applicants.
In his pursuit of employment at CNBC, plaintiff informed Nelson Rosabal, CNBC's vice president for personnel and who is Hispanic, that he had worked for NBC in Washington. Thus, Rosabal called Paul Besson, the Director of Employee Relations for NBC in Washington to determine if plaintiff would be recommended for employment should any openings become available. Besson informed Rosabal that plaintiff's supervisor in Washington, Ronald Knox, did not think his work was good enough to merit rehire. Knox based this opinion on statements by Cindy Bickford, who was at one time plaintiff's supervisor, that plaintiff was not an able documentary editor because he was very slow at operating the equipment. In addition, after Ms. Bickford left NBC, Knox became plaintiff's supervisor and observed him make several mistakes and have problems with technical equipment. Rosabal claims that based on this conversation with Besson, he concluded that he would not consider plaintiff for an engineering or tape editor's position should any openings occur. Plaintiff claims that Knox's conclusions about his work are false.
On March 1990, Paul Besson forwarded a letter to all former NBC employees, including the plaintiff, who were laid off from NBC's Washington, D.C. office on October 30, 1987. Besson's letter made an offer to buy out each former employee's recall rights under the NABET-NBC Master Agreements in exchange for money and the execution of a General Release by each employee as to NBC. The Release provided, in general, that NBC was discharged from any claims that plaintiff may have against NBC "in connection with any matter arising out of my employment with NBC, the termination of my service of NBC, or with respect to any matter arising from the failure of NBC or GE to continue my employment." The release specifically referred to claims of discrimination. Following several communications between the plaintiff and employees of NBC, plaintiff signed the release. Plaintiff claims that Besson and Ellie Larson assured him of work if he signed the release; defendants dispute this claim.
After signing the release, plaintiff continued to attempt to gain employment from CNBC.
In March of 1991, plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") against CNBC for its failure to hire him. The EEOC found no probable cause to support plaintiff's claims.
On March 20, 1992, plaintiff filed a pro se complaint against NBC and CNBC alleging various grounds for relief. On June 29, 1992, plaintiff filed an amended complaint against NBC, WNBC-TV, WRC-TV and CNBC. Defendants answered the complaint and now move for summary judgment. Lastly, it should be noted that plaintiff has since retained an attorney.
II. Summary Judgment Standard
Federal Rule of Civil Procedure 56 provides that summary judgment may be granted only if the pleadings, supporting papers, affidavits, and admissions on file, when viewed with all inferences in favor of the nonmoving party, demonstrate that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c). See also Todaro v. Bowman, 872 F.2d 43, 46 (3d Cir. 1989); Chipollini v. Spencer Gifts, Inc., 814 F.2d 893, 896 (3d Cir.), cert. dism'd, 483 U.S. 1052, 108 S. Ct. 26, 97 L. Ed. 2d 815 (1987). In other words, "summary judgment may be granted if the movant shows that there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Indiana Hospital, 843 F.2d 139, 143 (3d Cir.), cert. denied, 488 U.S. 870, 102 L. Ed. 2d 147, 109 S. Ct. 178 (1988).
The substantive law will identify which facts are "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-248, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). Therefore, "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. An issue is "genuine" if a reasonable jury could possibly hold in the nonmovant's favor with regard to that issue. Id.
The party seeking summary judgment always bears the initial burden of production, i.e., of making a prima facie showing that it is entitled to summary judgment. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). This may be done either by demonstrating there is no genuine issue of fact and that as a matter of law, the moving party must prevail or by demonstrating the nonmoving party has not shown facts relating to an essential element of the issue for which it bears the burden. Id. at 322-23. Once either showing is made, the burden shifts to the nonmoving party who must demonstrate facts supporting each element for which it bears the burden as well as establish the existence of genuine issues of material fact. Id. at 324.
However, at the summary judgment stage, a court may not weigh the evidence or make credibility determinations--these tasks are left to the factfinder. Petruzzi's IGA v. Darling-Delaware, 998 F.2d 1224, 1230 (3d Cir. 1993). Therefore, to raise a genuine issue of material fact, "'the [summary judgment] opponent need not match, item for item, each piece of evidence proffered by the movant,' but simply must exceed the 'mere scintilla' standard." Id. See also Anderson, 477 U.S. at 252 ("The mere existence of a scintilla of evidence in support of the [nonmovant's] position will be insufficient; there must be evidence on which the jury could reasonably find for the [nonmovant].")
If the court determines that there is no genuine issue of material fact and that the movant is entitled to judgment as a matter of law, then summary judgment may be granted.
There are a number of claims which are at issue in this motion. Plaintiff's claims, as represented to the court at oral argument (see Tr. of 12/5/94, at 20-21)
, are as follows: 1) plaintiff claims that CNBC engaged in discriminatory hiring practices when they failed to hire him after he was laid off in violation of Title VII of the Civil Rights Act of 1964 ("Title VII"), as amended, 42 U.S.C. §§ 2000e to 2000e-17, the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621-634, and the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 to 10:5-42; 2) plaintiff claims that NBC is liable under the LAD for failure to hire
; 3) plaintiff asserts hostile work environment claims against NBC, WNBC-TV, and WRC-TV under the LAD; and 4) plaintiff claims he was defamed.
In addition, defendants argue that most of plaintiff's claims are barred by his execution of the general release. Therefore, I will address that issue first, then I will address each of plaintiff's claims in turn.
A. The General Release.
Defendants first argue that summary judgment should be granted on all of plaintiff's claims that arose prior to April 5, 1990--the date plaintiff executed the Release. Plaintiff argues that the Release should not be given effect because he was induced to sign the release with fraudulent promises of future employment.
A waiver of claims of discrimination under Title VII and the ADEA is only valid if the waiver was knowing and willful. See Cirillo v. Arco Chemical Co., 862 F.2d 448, 451-54 (3d Cir. 1988); Coventry v. U.S. Steel Corp., 856 F.2d 514, 521-25 (3d Cir. 1988); Ponzoni v. Kraft General Foods, Inc., 774 F. Supp. 299, 309 (D.N.J. 1991), aff'd, 968 F.2d 14 (3d Cir. 1992). To determine whether an employee has executed a release knowingly and willfully, the Third Circuit has adopted a "totality of the circumstances" test. Coventry, 856 F.2d at 524; Ponzoni, 774 F. Supp. at 309. The factors to be considered in the analysis include, but are not limited to
(1) the clarity and specificity of the release language; (2) the plaintiff's education and business experience; (3) the amount of time plaintiff had for deliberation about the release before signing it; (4) whether plaintiff knew or should have known his rights upon execution of the release; (5) whether plaintiff was encouraged to seek, or in fact received benefit of counsel; (6) whether there was an opportunity for negotiation of the terms of the Agreement; and (7) whether the consideration given in exchange for the waiver and accepted by the employee exceeds the benefits to which the employee was already entitled by contract or law.
Cirillo, 862 F.2d at 451. In addition, general principles of contract construction, specifically the absence of fraud or undue influence, are also applicable in determining the validity of a waiver. See Coventry, 856 F.2d at 522.
In the case before the court, plaintiff argues that he was induced to sign the release with fraudulent promises of future employment. Plaintiff's testimony at his deposition wherein he states that he understood that he would gain employment if he signed the release raises a genuine issue of material fact concerning the validity of the release. Therefore, the court is precluded from granting summary judgment based on the release.
B. Failure to Hire.
The burdens of proof and production for discrimination claims arising under Title VII, the ADEA, and the LAD are the same. See Mardell v. Harleysville Life Ins. Co., 31 F.3d 1221, 1225 n.6 (3d Cir. 1994) (Title VII and the ADEA); McKenna v. Pacific Rail Service, 32 F.3d 820 (3d Cir. 1994) (predicting that the New Jersey Supreme Court would incorporate principles enunciated in St. Mary's Ctr. v. Hicks, U.S. , 113 S. Ct. 2742, 125 L. Ed. 2d 407 (1993) into its LAD jurisprudence).
In a case of failure to hire under Title VII, the ADEA, or the LAD, the plaintiff has the initial burden of establishing a prima facie case of unlawful discrimination. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802, 36 L. Ed. 2d 668, 93 S. Ct. 1817 (1973)).
This may be done by showing (i) that he belongs to a [protected category]; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.