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June 12, 1995

FARID S. KHAIR, Plaintiff

The opinion of the court was delivered by: JOSEPH E. IRENAS

 IRENAS, District Judge:

 This is an age, race, and national origin discrimination action brought by Farid S. Khair against his employer Campbell Soup Company ("Campbell") alleging discriminatory transfer, failure to promote, and retaliation claims under Title VII, 42 U.S.C. § 2000e et. seq.; the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et. seq.; 42 U.S.C. § 1981 ("§ 1981"); and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et. seq. Campbell has filed a counterclaim asserting that Khair breached his duty of loyalty to Campbell by releasing confidential personnel information. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1343. Plaintiffs' NJLAD action and Campbell's counterclaim is cognizable under the Court's supplemental jurisdiction. 28 U.S.C. § 1367(a).

 Campbell has moved pursuant to Fed. R. Civ. P. 56 for summary judgment (i) dismissing all claims in plaintiff's complaint and (ii) finding plaintiff liable on its counterclaim. Plaintiff's § 1981 claim that arose Prior to the enactment of the Civil Rights Act of 1991 - the discriminatory transfer/failure to promote claim - is dismissed because it fails to state an actionable claim under Patterson. The motion for summary judgment on plaintiff's discriminatory transfer/failure to promote claim under Title VII, the ADEA, and the NJLAD is denied because we find they were filed within the relevant statute of limitations period and because plaintiff has produced sufficient evidence to create a triable issue of fact. Plaintiff's evidence fails to create a triable issue of fact on the remaining § 1981 claims, the failure to promote in 1992 claims, and the retaliation claims, and these claims will be dismissed. There are disputed issues of fact surrounding defendant's counterclaim, and thus Campbell's summary judgment motion to find plaintiff liable on the counterclaim is denied.


 Khair was born in Egypt on June 21, 1945. In 1985 plaintiff became a United States citizen. He began working at Campbell as an Accounting Clerk on July 23, 1980. Plaintiff was promoted to Senior Lead Clerk in 1981, to Accountant in 1983, to Supervisor-Accounting in 1984, to Supervisor of the General Ledger in 1984, and to Manager-Financial Systems Control in 1986. When he was promoted to Senior Lead Clerk and Accountant in 1981 and in 1983, he received a lower pay scale than the employees he replaced. He believes these jobs were downgraded because of national origin discrimination. When plaintiff complained in 1983, Campbell took steps to adjust plaintiff's salary.

 From 1986 to 1990, Khair's title was Manager-Financial Systems Control. Plaintiff was responsible for managing and administering the general ledger, a computerized financial system which maintains the financial transactions of Campbell and ten other associated entities. According to Campbell's Position Information Questionnaire ("PIQ"), *fn1" plaintiff managed the reconciliation of sixty-six bank accounts and Campbell's accounts receivable system.

 In 1986 and 1987, plaintiff reported to Joseph Collepardi. In the 1986 annual review, Collepardi said plaintiff was "ready for a higher level managers position," and in 1987, Collepardi said Khair was "promotable today." (Pl.Ex. 10.) In 1987, Khair was given an overall performance rating of "5" on a scale of 1 to 6, where "6" was the highest score. Collepardi recommended Khair for an Award of Excellence.

 Plaintiff's supervisor from 1988 until 1991 was John Shimrak, Controller, Accounting Services (age 49). Shimrak supervised the Financial Systems department (headed by Farid Khair, age 46, level 26 *fn2" ), the Payroll Services department (Jack Lyons, Director, age 56, level 34), Accounting Systems department (John Yecco, age 35, level 32), and the Savings Plan department (managed by Fran Stronski, age 51, level 30). Plaintiff claims that Shimrak has promoted younger, native-born employees while his job level, 26, has not changed since 1986. *fn3"

 Plaintiff claims that Shimrak made the following demeaning comments about Khair's ancestry. In June and July of 1988, Shimrak addressed Khair as his "Egyptian friend." In October or November of 1990, Shimrak repeatedly expressed his anger at having American troops fighting a war in the Middle East. On January 10, 1991, Shimrak wondered what would happen in the department if Khair were "hit by a camel." On March 1, 1991, Shimrak characterized a problem in the office as "an Egyptian curse." In January, 1992, referring to a problem-solving idea proposed by Khair, Shimrak asked Khair, "Is [this] the Egyptian way [of] handling such matters?" (Pl.Ex. 7.) There is deposition testimony from another Campbell employee that Shimrak "light-heartedly kidded" the plaintiff about his Egyptian origin. (Turco Dep. at 32.)

 Plaintiff claims that Shimrak acted on his alleged antipathy towards the plaintiff. Plaintiff contends that in December, 1988, and again in January and February of 1989, Shimrak assigned additional responsibilities to plaintiff but failed to promote him. At the same time, three other employees received promotions (John Yecco, Bill Langford, and Larry Tursi). When plaintiff complained, Shimrak allegedly promised to increase his job level but never did so. Meanwhile, plaintiff avers younger employees continued to be promoted. Shimrak promoted Sherry Miller in 1989 and 1990 when she was twenty-nine and thirty years old; he promoted Russ Turco in 1989 at age thirty; and he promoted Ray Dobry in 1990 when he was thirty years old. Plaintiff also claims he had the highest performance rating in the Accounting Services department from 1987 to 1990.

 In August of 1990, Shimrak transferred some of plaintiff's job responsibilities to another employee, John Yecco. The duties shifted involved the preparation of several of the financial reports that are submitted to Campbell's officers. Plaintiff maintains that Shimrak told Khair that the reason for the change was that Yecco was not busy enough. At Yecco's deposition, Yecco said he did not know why the duties were transferred. (Yecco Dep. at 234.) In December, 1990, plaintiff says he told Shimrak of his frustrations. Plaintiff claims that Shimrak smiled and said "let me see what I can do." (Pl.Br. at 11.)

 On January 10, 1991, plaintiff received his annual performance review. Shimrak described plaintiff as a "highly dedicated professional" and a "valuable employee" whose work "set the example for many other departments to follow." (Def.Ex. I.) The annual review noted that Khair would soon be assigned to the Pension Department as project manager for a new pension system. He was rated "4" in overall performance on a five point scale, with "5" being the best.

 In July of 1990, Campbell changed its performance ratings system from a six point scale to a five point scale. Data provided by the plaintiff suggests that under the six point scale, 0% to 1% of all employees received a "6." (Pl.Ex. 24.) Under the suggested distribution for the five point scale, 15% of employees would rate a "5." (Pl.Ex. 22.) Khair asserts that at least eight other employees under Shimrak's supervision received a "5" in 1990. Khair believes his "4" rating was a downgrade. Campbell maintains that the change in grade was a result of the change in scale.

 In December of 1990 or early January of 1991, Shimrak claims that he offered plaintiff a transfer, and plaintiff accepted this offer willingly. Khair's new job was project manager for the installation of a new company-wide pension administration computer system known as PensionManager. Shimrak testified that he picked Khair for this position because he had had some discussions with the plaintiff about his career opportunities, and it occurred to Shimrak that the new position "might have been an opportunity for [Khair] to broaden his experience, his background with Campbell Soup Company." (Shimrak Dep. at 203.) The project manager would report to Jack Lyons, Director of Payroll Services.

 Plaintiff avers that he did not accept this transfer without objection. Rather, plaintiff expressed his concern that after the job as project manager was complete, he would no longer have a job, and he asked Shimrak if he could continue to perform both jobs. Shimrak denied this request. According to Khair, Shimrak told him that the transfer had been approved by Shimrak's supervisor, Ray Meillier, Vice President for Financial Services, and was final. Allegedly Shimrak also told plaintiff: "I have to have a back-up for your position... I don't know what to do if you are hit by a camel after leaving this place." (Pl.Br. at 12.)

 After plaintiff switched jobs, Shimrak transferred the plaintiff's former job responsibilities, including management of the general ledger, to the Accounting Systems department directed by John Yecco. Yecco recommended Sherry Miller (a Black female, age 34, level 26) for manager of the general ledger function. Shimrak accepted this recommendation.

 Plaintiff submits that his new assignment was a position that did not exist and would not be permanent. In a memo dated December 14, 1990, Shimrak requested approval from the Pension Administration Committee to expend approximately $ 300,000 of the pension trust funds to purchase PensionManager, a PC-based pension administration system from Towers Perrin. In this proposal, Shimrak stated that additional staff would be utilized to install the project, but after installation, his goal was to utilize the staff that had existed before implementation. In response to this proposal, the Committee suggested that Shimrak obtain bids from other vendors. Approval for the PensionManager project was secured on April 3, 1991, two months after the plaintiff's transfer.

 Plaintiff presents additional facts that he claims are evidence that the PensionManager position would not be a permanent position. First, plaintiff's new position was never submitted for approval to the Human Resources Department or the Compensation Department. No PIQ was created describing the duties of plaintiff's new position as Manager-Payroll Services. Nor was the new title reflected on plaintiff's change of status form, a document that notes all changes associated with an individual's employment at Campbell. There is a PIQ that reflects the assignment to Sherry Miller of some of Khair's former duties with respect to the general ledger. Miller's PIQ was received by the Human Resources Department on January 24, 1991. According to Miller and Yecco, the decision to transfer Khair's general ledger work had been made by late December, 1990 or early January, 1991. Finally, plaintiff notes Shimrak, Lyons, Ray Dobry, and Russell Turco had been working on the PensionManager project. Lyons testified that both were qualified for the project manager position but were not asked if they were interested in the position.

 Plaintiff claims that he was given virtually nothing to do in his new position. He complained to several company officials. In late March, 1991, Khair suffered a severe outbreak of psoriasis with associated depression and was out of work for approximately one month.

 When he returned to work, he discovered that Miller, at age thirty-one, had been promoted from a level 26 to a level 30. In July of 1991, plaintiff learned that Bill Langford (age 33) and Larry Tursi (age 29) had also been promoted from level 26 to 30. Defendant states that these promotions were instituted because of the employees' increased responsibilities. In January, 1991, Campbell decided to centralize various financial functions at their Camden headquarters. After review, the Human Resources Department upgraded the job levels of these employees as of April 16, 1991, due to the centralization. *fn4" At the time the centralization became effective, Miller was performing essentially the same functions that Khair had been performing when he was transferred on February 1, 1991.

 Sometime after plaintiff's return from medical leave in mid-May 1991, plaintiff began to access the Campbell Human Resources Information System ("HRIS") to prepare documents and charts showing certain employees' age, level, years at Campbell, etc. On January 10, 1992, plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"). Without Campbell's permission, Khair provided the EEOC with copies of the documents he prepared by using the HRIS. *fn5"

 On March 11, 1992, plaintiff was given his annual review for 1991 by his supervisor, Jack Lyons. Lyons gave plaintiff an overall rating of "3" *fn6" on a scale of "1" to "5." Employees with a grade of "3" receive lower pay increases than those with a rating of "4" or "5." Shimrak also signed this evaluation. Lyons avers that he prepared this report on February 7, 1992, before he knew that Khair had filed an EEOC complaint. Plaintiff believes Lyons did know about his EEOC complaint, and plaintiff wrote in the space on the evaluation for employee's comments that "its contents represnt [sic] a continuation to [sic] the discriminatory treatment reported in my complaint to the EEOC." (Pl.Ex. 10.) In his deposition, plaintiff stated that he did not believe Lyons had ever discriminated against him because of his age or national origin.

 In early 1992, Campbell decided that it needed a full-time administrator for the PensionManager system. Lyons offered plaintiff the job, and plaintiff accepted.

 In October, 1992, plaintiff applied for the opening for Manager-Centralized General Ledger (a level 28 position). This job was similar to his prior position as Manager-Financial Systems Control. Miller was the hiring supervisor for this position. Miller contends that she decided not to hire Khair before she interviewed him because she believed that plaintiff's management style was in conflict with her own. Miller states she found out about Khair's EEOC charge when he told her about the charge during his interview for the general ledger position.

 On December 10, 1992, plaintiff learned that the employee selected as Manager-Centralized General Ledger was Nancy Riley. Riley is a native American. Plaintiff claims that Riley was thirty-one when she was promoted; *fn7" Khair was forty-seven.

 In March, 1993, plaintiff received his 1992 annual review in which he received an overall grade of "4" on a scale of "5." Lyons made several negative comments about plaintiff's performance. Khair responded to these complaints in writing.

 On April 15, 1993, plaintiff filed a complaint alleging that his transfer and defendant's failure to promote him violated Title VII, § 1981, the ADEA, and the NJLAD. On June 10, 1993, defendant counterclaimed against plaintiff for breaching Campbell's confidentiality policy and for Khair's breach of his duty of loyalty to Campbell. On January 24, 1994, plaintiff filed an amended complaint asserting that his 1991 and 1992 annual reviews and his rejection for the Manager-Centralized General Ledger position amounted to retaliation in violation of Title VII, § 1981, the ADEA and the NJLAD.


 Under Fed. R. Civ. P. 56(c), a court may grant summary judgment "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 non-moving party may not simply rest on its pleadings to oppose a summary judgment motion but must affirmatively come forward with admissible evidence establishing a genuine issue of fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 324, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (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. American Telephone & Telegraph Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). 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 ...

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