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DEJOY v. COMCAST CABLE COMMUNS. INC.

March 21, 1997

FRANK DEJOY, Plaintiff,
v.
COMCAST CABLE COMMUNICATIONS INC., SUBURBAN CABLEVISION, COMCAST CABLE OF NEW JERSEY, THOMAS BAXTER, individually and his official capacity, and MICHAEL DOYLE, individually and in his official capacity, Defendants.



The opinion of the court was delivered by: LECHNER

 LECHNER, District Judge

 This is an action by Frank DeJoy ("DeJoy") against Comcast Cable Communications, Inc. ("Comcast Cable"), Suburban Cablevision ("Suburban Cablevision"), Comcast Cable of New Jersey, Thomas Baxter ("Baxter") and Michael Doyle ("Doyle") (collectively, the "Defendants"). The amended complaint (the "Amended Complaint"), filed 28 June 1996, asserts claims pursuant to the Age Discrimination in Employment Act (the "ADEA"), 29 U.S.C. § 621 et seq., the Americans with Disabilities Act (the "ADA"), 42 U.S.C. § 12101 et seq., the New Jersey Law Against Discrimination (the "NJLAD"), N.J.S.A. 10:5-12 et seq., as well as various common law contract and tort claims, arising from the termination of DeJoy's employment with Suburban Cablevision. Jurisdiction is alleged pursuant to 28 U.S.C. §§ 1331 and 1343, 29 U.S.C. § 626(c) and 42 U.S.C. § 12117(a). Amended Complaint, P 2. Pendant jurisdiction is alleged over the State and common law claims. Id. Diversity jurisdiction is not alleged.

 Currently before the court is Defendants' motion for summary judgment (the "Motion for Summary Judgment"). *fn1" For the reasons set forth below, the Motion for Summary Judgment is granted in part and denied in part.

 Facts

 A. Parties

 DeJoy is a citizen of the State of New Jersey. Amended Complaint, P 7. Comcast Cable is a corporation "doing business throughout the State of New Jersey" and maintaining offices in Union, New Jersey. Id., P 8. At all relevant times, Baxter was the President of Comcast Cable. Id., P 9. At all relevant times, Doyle was Regional Vice President of Comcast Cable. Id., P 10. At all relevant times, Suburban Cablevision was a corporation "doing business in the State of New Jersey" and maintaining offices in Union, New Jersey. Id., P 11. Comcast Cable is "a successor entity to Suburban Cablevision." Id.

 B. Procedural History

 DeJoy filed a timely charge of employment discrimination with the Equal Employment Opportunity Commission (the "EEOC"), on 14 June 1995. Amended Complaint, P 4; see 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(e)(1). On 26 January 1996, the EEOC provided DeJoy with a "notice of right to sue." Amended Complaint, P 5 & Exh. A. DeJoy timely filed a complaint (the "Complaint") on 15 March 1996. See 29 U.S.C. § 626(d); 42 U.S.C. § 2000e-5(f)(1).

 On 21 May 1996, Defendants served DeJoy with a notice of motion to dismiss the Complaint (the "Motion to Dismiss"). In response to the Motion to Dismiss, DeJoy requested and was given leave to file the Amended Complaint. On 8 October 1996, through an opinion and an order filed that date, the ADA and ADEA claims in counts I, III and V of the Amended Complaint were dismissed as to Baxter and Doyle and count VI of the Amended Complaint was dismissed as to all Defendants. See DeJoy v. Comcast Cable Communications, Inc., 941 F. Supp. 468, 478 (D.N.J. 1996) ("DeJoy I "). The Motion to Dismiss was denied to the extent it sought the dismissal of counts XI and XII of the Amended Complaint. Id.

 C. Background

 DeJoy was born on 12 January 1939 and at the time of the alleged discrimination was fifty-six years old. Blunda Cert., Exh. W. At the time of the alleged discrimination, DeJoy had approximately thirty years of experience in the cable industry. DeJoy 12G Statement, P 7.

 DeJoy started his employment with Suburban Cablevision in 1981. Blunda Cert., Exh. X. He began as the Vice President of Engineering, was promoted to Vice President of Operations and eventually became Vice President and General Manager of the enterprise in 1988. Id. DeJoy remained in the position of Vice President and General Manager from January of 1988 until January of 1995. Id. ; DeJoy Dep. at 269.

 Prior to 22 December 1994, Suburban Cablevision was owned by Maclean-Hunter, Inc. ("Maclean-Hunter"), a Canadian corporation. DeJoy Dep. at 329. At all relevant times prior to 22 December 1994, Rogers Communications, Inc. ("Rogers Communications"), another Canadian corporation, was the beneficial owner of all shares of Maclean-Hunter. Moving Brief, Exhibit F.

 On 1 June 1994, in anticipation of a possible sale by Maclean-Hunter, DeJoy entered into a severance agreement (the "Severance Agreement") with Maclean-Hunter and Suburban Cablevision. Moving Brief, Exh. F. The Severance Agreement provided, in pertinent part:

 
WHEREAS it is currently contemplated that Rogers Communications ... will endeavor to obtain an acceptable offer from a third-party purchaser to purchase the shares of [Maclean-Hunter] and, if a sale is completed ... a Control Change (as hereinafter defined) will occur; *fn2"
 
AND WHEREAS in the event of a Control Change, there is a possibility that the employment of [DeJoy] would be terminated without cause or adversely modified and [DeJoy] has expressed concern in that regard;
 
AND WHEREAS it is in the best interests of [Maclean-Hunter] and [Suburban Cablevision] to induce [DeJoy] to remain in the employ of [Suburban Cablevision] by indicating that in the event of a Control Change, [DeJoy] would have certain rights on a termination of [his] employment;
 
NOW THEREFORE ... the parties hereby agree as follows
 
* * *
 
2. If [DeJoy] remains employed by [Suburban Cablevision] for a period of six months following a Control Change (or [his] employment is terminated within such six-month period by [Maclean-Hunter] other than for Just Cause, *fn3" death or permanent disability, or by [DeJoy] for Good Reason), *fn4" [Maclean-Hunter] shall pay, or cause [Suburban Cablevision] to pay to [DeJoy] ... a one-time bonus equal to:
 
(a) if [Suburban Cablevision] realizes cash flow from its operations during the 1994 calendar year not less than that provided for in [its] budget forecast ... one-half of [DeJoy's] Annual Salary; or
 
(b) if the condition in subparagraph (a) is not satisfied, one-third of [DeJoy's] Annual Salary.
 
3. If [DeJoy's] employment is terminated by [Maclean-Hunter] or [Suburban Cablevision] other than for Just Cause, permanent disabilities or death or is terminated by [DeJoy] for Good Reason, in each case at any time within the Period following a Control Change, [Maclean-Hunter] shall pay, or cause [Suburban Cablevision] to pay to ... [DeJoy] ... an amount equal to the result obtained when one-twelfth of the Annual Salary is multiplied by the Period.

 Moving Brief, Exh. F.

 In June of 1994, Comcast Cable entered into an agreement of sale with Rogers Communications to purchase Rogers Communications' cable properties, including Maclean-Hunter's properties, located in the United States. These properties included Suburban Cablevision. DeJoy Dep. at 207.

 In July of 1994, representatives of Comcast Cable met with representatives of the New Jersey Office of Cable Television (the "Office of Cable Television") (the "July 1994 Meeting"). DeJoy Dep. at 272. The purpose of the July 1994 Meeting "was to address the Director of the Office of Cable Television and the members of her staff regarding the expected acquisition [of Suburban Cablevision] ... by Comcast [Cable]." Id. DeJoy contends that during the July 1994 Meeting, "statements were made that there would be no changes in the structure [of Suburban Cablevision], certainly not in the management structure ...." Id. at 275.

 On 31 August 1994, DeJoy had a meeting with William J. Quinn ("Quinn"), the president of "Cablevision," a competitor of Suburban Cablevision (the "31 August 1994 Meeting"). DeJoy Dep. at 284-87. During the course of the 31 August 1994 Meeting, Quinn allegedly offered DeJoy employment at Cablevision. Id.; see Blunda Cert., Exh. T.

 At the 31 August 1994 Meeting, Quinn and DeJoy discussed the possibility of DeJoy taking the position of regional vice-president and general manager for northern New Jersey for Cablevision, a position Quinn intended to create. DeJoy Dep. at 284-87; Blunda Cert., Exh. T. DeJoy advised Quinn he preferred to remain with Suburban Cablevision, depending upon Comcast Cable's intentions for his continued employment. DeJoy 12G Statement, P 15.

 On 1 September 1994, representatives of Comcast Cable, including Baxter and Doyle, met with representatives of Suburban Cablevision, including DeJoy, and Maclean-Hunter to discuss the upcoming acquisition. Doyle Dep. at 289. After the meeting, Doyle met privately with DeJoy. Id. at 292-93. DeJoy states that Doyle told him that he "should not be concerned about the future because [DeJoy] was going to be Area Vice-President." Id. at 293. DeJoy states Doyle explained that DeJoy would remain "responsible for the properties [he] was currently managing, as well as the system in Meadowlands, in Kearny, and a system in Plainfield." Id. DeJoy further states Doyle predicted that "over the next year or two, [DeJoy's] responsibility would expand to the northern half of New Jersey." Id. It does not appear DeJoy informed Doyle of his alleged offer of employment from Cablevision. Id. DeJoy states that in reliance upon Doyle's assurance that DeJoy would "be Area Vice-President with expanding responsibilities, [he] dismissed the other proposal from Cablevision." Id.

 
I -- my job is I'm the regional vice president in charge of operations for New Jersey, City of Philadelphia and two suburbs .... Frank DeJoy runs the business, he reports to me and it's my responsibility to continue running the business and while at some time, you know, Frank may see -- Frank may see it and the management staff may see it that they would like to have somebody who has Comcast [Cable] history as part of that management team, that would be something we would talk about. But at this point there is no plan to, you know, have a Comcast [Cable] executive come into the building.

 Doyle Dep. at 212-13 (emphasis added). During the afternoon session, Doyle reportedly made similar statements, indicating that DeJoy would remain in his position. Joseph J. Albarella ("Albarella") Dep. at 75-76; Margaret Smeraldo Bucci ("Bucci") Dep. at 109-113. DeJoy states that, during the afternoon session, Doyle specifically stated DeJoy would remain Area Vice-President and General Manager of Suburban Cablevision. DeJoy Dep. at 420.

 On 8 December 1994, DeJoy suffered a ruptured aortic aneurysm. Alan S. Bahler, M.D. ("Bahler") Dep. at 6. On 9 December 1994, Phil Patterson, President of Maclean-Hunter Cable TV ("Patterson"), circulated a memorandum (the "9 December 1994 Memorandum") regarding DeJoy's condition. Moving Brief, Exh. H. The 9 December 1994 Memorandum, which was sent to Baxter, provided:

 
At approximately 5:30 a.m. yesterday morning, Frank DeJoy, Vice President and General Manager in charge of our New Jersey operations, collapsed as a result of an aneurism which burst in a vein near his heart. All the details are still not clear to me. Frank was operated on an hour later with, I am told, great success. He is still not out of the woods since he will remain in intensive care for several days and will probably spend two to three weeks in total in the hospital. The total recovery period is expected to be two to three months.

 Id. After surgery, DeJoy remained hospitalized until 26 December 1994. DeJoy Dep. at 445. On 20 December 1994, Patterson approved an administrative memorandum (the "Full Pay Memorandum") which provided that DeJoy would remain on full pay while on disability leave. Blunda Cert., Exh. Y.

 On 22 December 1994, Comcast Cable closed on its acquisition of Suburban Cablevision. Defendants 12G Statement, P 3. On 11 January 1995, while he was recuperating at home, DeJoy was informed he would be replaced by Joseph Fischer ("Fischer") as Vice-President of Suburban Cablevision and that he would be offered a position "reporting to ... Fischer." DeJoy Dep. at 464. The position offered to DeJoy was "Director of Business Development," a position that Comcast Cable intended to create. Id. at 466.

 At the time he replaced DeJoy, Fischer was forty-four years old. Fischer Dep. at 7. Bucci, who was head of human resources for Suburban Cablevision, states that in January of 1995 Peddrick told her the decision to replace DeJoy had been made on 12 December 1994. Bucci Dep. at 138-39. In addition to being removed as Vice President, DeJoy was removed as General Manager; in March of 1995, Michael Schenker ("Schenker") was named the new General Manager of Suburban Cablevision. DeJoy 12G Statement, P 5 (citing Schenker Dep. at 9). Schenker was forty-two years of age at the time. Id.

 On 24 January 1995, Peddrick sent DeJoy a job description for the position of "Director of Business Development" (the "Job Description"). Blunda Cert., Exh. P. The Job Description provided:

 
POSITION SUMMARY : Responsible for securing interactive and other business opportunities to keep Comcast [Cable] positioned as a market leader of their services against NJ Bell. Also, maintain government and community relationships in the Suburban system.
 
. Monitor all current NJ Bell activity.
 
. Develop interactive business opportunities by managing the bidding, public hearing and construction process of interactive business systems.
 
. Maintain consistent visitation with community leaders to promote strong community relationships.
 
. Manage the interactive business once constructed.

 Blunda Cert., Exh. P. The minimum qualifications for the position of Director of Business Development were provided: "Bachelor's degrees in related field or the recognized equivalent in work experience and self-study ... [and five] years experience in interactive business applications." Id.

 The Job Description provided DeJoy would report to Fischer. Blunda Cert., Exh. P. By a letter, dated 24 January 1995, Peddrick informed DeJoy the annual salary for the position of Director of Business Development would be "$ 144,384 along with the Comcast [Cable] benefit package." Moving Brief, Exh. I. The total compensation package of the Director of Business Development position would have been less than DeJoy's prior position at Suburban Cablevision. DeJoy 12G Statement, P 34. Furthermore, the position of Director of Business Development was not contained in a table of organization contained in "Cable Gram," a newsletter for Suburban Cablevision and Cable TV of Jersey City employees, dated 24 March 1995. Blunda Cert., Exh. R.

 Suburban Cablevision paid for a long term disability insurance policy that provided benefits for employees after 120 days of medical leave. DeJoy Dep. at 469-470, 475, 477, 479-80; Peddrick Dep. at 98-99. DeJoy states that, despite a written policy that an employee would have to go on long term disability after 120 days, unofficially "there was a practice to pay members of the Management Committee[, such as DeJoy,] full salary for up to a year in the event they had a serious illness." DeJoy Dep. at 470. This "unofficial practice," according to DeJoy, had been started several years prior to 1994. Id. at 471.

 Despite the Full Pay Memorandum and the unofficial practice of paying members of the Management Committee their full salary for up to a year, DeJoy was informed he would be removed from the payroll, effective 7 April 1995. DeJoy Dep. at 476-77; Moving Brief, Exh. K (letter of Dina Galeotafiore, dated 31 March 1995 (the "31 March 1995 Letter")). The 31 March 1995 Letter provided, in relevant part:

 
I am writing to you with regard to your disability benefits and how the same relate to your overall compensation.
 
Specifically, as of the 120th day of your disability, April 7, 1995, your compensation for the remainder of your disability will be provided by the long term disability carrier, and no longer by Comcast [Cable] under the Suburban [Cablevision] plan.
 
At this time it is necessary for you to file a claim with Fort Dearborn Life Insurance Co. for long term benefits.
 
As of April 7th, your Fort Dearborn long term disability plan will begin to assume responsibility for compensation of lost wages, as per the terms of the group policy. This amount will equal 50% of your monthly wages up to a maximum of $ 2,500.00 for as long as you remain totally disabled and out of work.

 Moving Brief, Exh. K. DeJoy never filled out an application for long term disability payments. Peddrick Dep. at 113; DeJoy Dep. at 697.

 While on salary status with Suburban Cablevision, and later Comcast, DeJoy paid $ 16.50 every two weeks for his insurance coverage, which was deducted directly from his paycheck. DeJoy Dep. at 549. After DeJoy was taken off of salary status, it became necessary for him to write a check to Comcast Cable for the insurance payment that had previously come out of his paycheck. DeJoy Dep. at 549-51; Peddrick Dep. at 111.

 DeJoy did not accept the offer of the Director of Business Development position. DeJoy Dep. at 54-59. On 5 June 1995, Counsel for DeJoy informed Comcast that DeJoy intended to invoke his Severance Agreement. Id. at 520; Moving Brief, Exh. J (letter of Mark J. Blunda, dated 5 June 1995 (the "5 June 1995 Letter")). The 5 June 1995 Letter provided, in relevant part:

 
In view of [Comcast's] removal of ... DeJoy from the position of Area Vice-President and General Manager in January of 1995, its elimination of his commission benefits and its unilateral reduction in his compensation package by approximately $ 50,000, ... DeJoy hereby invokes paragraph 3 of the June 1, 1994 Memorandum of Agreement between Maclean-Hunter, Inc., Suburban Cablevision and Frank DeJoy. Pursuant to that provision, Mr. DeJoy is entitled to payment within 10 days of one-twelfth of his Annual Salary multiplied by the number of months equal to his completed years of service (14 months).
 
For purposes of these calculations the "Annual Salary" is defined as the aggregate of the annual salary and commissions payable to Frank DeJoy for the twelve month period ending November 30, 1994.
 
In addition, Mr. DeJoy is entitled to receive one-half of his Executive Annual Salary, representing his one-time bonus pursuant to Paragraph 2 of the June 1, 1994 Memorandum of Agreement.
 
Furthermore, Mr. DeJoy is entitled to payment for commissions throughout the second quarter of 1995, as well as contributions for the 401K and pension plans....
 
As previously indicated, we reiterate the demand for full salary and benefits for the seven-week period that your client unilaterally disrupted ... DeJoy's pay and insurance status.

 Moving Brief, Exh. J.

 On 14 June 1995, Comcast sent DeJoy five checks representing (1) a severance payment under paragraph three of the Severance Agreement in the amount of $ 209,576.50, (2) a payment in the amount of $ 89,818.50 representing the stay put bonus, pursuant to paragraph 2 of the Severance Agreement, (3) four weeks of accrued vacation pay, including commissions, plus one holiday in the amount of $ 14,792.95, (4) full salary plus commission from the period 8 April 1995 through 5 June 1995 in the amount of $ 29,918.62, and (5) the amount remaining in DeJoy's company savings plan in the amount of $ 3,432.11. Moving Brief, Exh. M. As indicated in the Severance Plan, DeJoy would not have been entitled to receive the severance payment and stay put bonus totaling $ 299,395.00 if he had left his employment with Suburban Cablevision prior to 22 December 1994, the date Comcast Cable closed on its acquisition of Suburban Cablevision. See DeJoy Dep. at 258, 265-66; Moving Brief, Exh. F.

 Doyle states that the decision to replace DeJoy was made in November of 1994. Doyle Dep. at 55, 72. At that time, Doyle told Baxter that DeJoy would not continue in the "vice president and general manager role managing the profit and loss statements of the cable system." Id. at 73. Doyle recommended Fischer for DeJoy's position. Id.

 Doyle stated his reasons for choosing Fischer over DeJoy were (1) DeJoy made two inappropriate comments during a 1 September 1994 dinner meeting, *fn5" (2) Doyle found DeJoy's attitude toward the Comcast Cable's cash flow goals to be unacceptable, (3) the budget presented at Maclean-Hunter's annual budget meeting, in November of 1994, did not meet Comcast Cable's cash flow goals, (4) in "September or October ... DeJoy in front of Mr. Vandervort belittled Dave Breindinger," and (5) DeJoy repeatedly asked Doyle certain questions and would not accept Doyle's answer that Doyle would be unable to answer the questions until the closing. Doyle Dep. at 176-78.

 In March of 1994, DeJoy contacted Quinn and asked he memorialize their discussions regarding DeJoy's possible employment with Cablevision. See Blunda Cert., Exh. T. At that time, Quinn informed DeJoy the position of Regional Vice President for New Jersey, originally offered to DeJoy, had been filled. Id. Quinn, however, informed DeJoy that Cablevision was still "interested in discussing other possible positions for him, but that these positions would be at the system management level only." Id.

 On 5 June 1995, DeJoy commenced employment with Rainbow Programing, as the Senior Vice President of Rainbow Video Services. DeJoy Dep. at 535. DeJoy's starting base salary with Rainbow Video Services was $ 180,000. Id. at 535-36, 543-44. In addition to his base salary, DeJoy received a bonus of $ 29,000 for the period 5 June 1995 through 31 December 1995. Id. at 537-42. DeJoy has also received stock options from Cablevision as compensation. Id.

 DeJoy's responsibilities at Rainbow Video Services included managing a joint venture between Rainbow Video Services and Bell Atlantic, where Bell Atlantic would provide Rainbow Video Services "a number of channels on their interactive service." DeJoy Dep. at 534-35. DeJoy's responsibilities were "to get involved in the negotiations and discussions, also on the technical side and on the operational side with Bell Atlantic, with hardware providers, and various potential programers, to provide an interactive dial tone service in that market." Id. at 535.

 In September of 1996, DeJoy became the General Manager of three Cablevision cable systems located in Newark, Hudson and Bayonne, New Jersey. DeJoy Dep. at 547. His salary remained the same as it was as the Senior Vice President of Rainbow Video Services and he has participated in Cablevision's 401(k) plan and receives an automobile allowance. Id. at 548-59.

 D. The Amended Complaint

 The Amended Complaint contains thirteen counts. As indicated, however, count VI of the Amended Complaint has been dismissed and the ADA and ADEA claims contained in counts I, III and V of the Amended Complaint have been dismissed as against Baxter and Doyle. See DeJoy I, 941 F. Supp. at 478.

 Count I of the Amended Complaint alleges "Defendants, jointly and severally, engaged in unlawful employment practices by removing [DeJoy] from his position and discriminating against [him] because of his age, in violation of the [ADEA]." Amended Complaint, P 41.

 Count II of the Amended Complaint alleges "Defendants, jointly and severally, engaged in unlawful employment practices by removing [DeJoy] from his employment and discriminating against [him] because of his age, in violation of the [NJLAD]." Amended Complaint, P 46.

 Count III of the Amended Complaint alleges that "on or about December 8, 1994, [DeJoy] became physically disabled as a result of a serious illness which substantially limited one or more of [his] major life activities." Amended Complaint, P 51. DeJoy alleges Defendants "unlawfully removed [him] from his position of Vice President and General Manger and failed to appoint him as Area Vice President because of his disability and/or the perception he was disabled." Id., P 54. Count III alleges Defendants' removal of DeJoy violated the ADA. Id., 57.

 Count IV of the Amended Complaint alleges "Defendants have discriminated against [DeJoy] in regard to his employment, compensation, and terms and conditions of employment because of his disability or his perceived disability, in violation of NJLAD." Amended Complaint, P 62. DeJoy alleges both Baxter and Doyle "individually engaged in unlawful employment practices by aiding, abetting, inciting and/or compelling the unlawful acts of discrimination against [DeJoy]." Id., PP 63-64.

 Count V alleges "during the first six (6) months of 1995, Defendants retaliated against [DeJoy] because he engaged in protected activity and opposed their unlawful and discriminatory conduct. The retaliatory action by Defendants violated the [NJLAD, the ADA and the ADEA]." Amended Complaint, P 68.

 Count VIII alleges a breach of contract. DeJoy alleges that, in 1994, Comcast Cable agreed to appoint him Area Vice-President in consideration for his agreement to remain with Comcast Cable when it acquired Suburban Cablevision from Maclean-Hunter. Amended Complaint, P 88. DeJoy alleges Defendants "breached their contract with [him] by removing him from the positions of Vice-President and General Manager of Suburban and by failing and refusing to appoint him Area Vice-President." Id., P 90.

 Count IX of the Amended Complaint alleges that, by reason of Defendants' conduct, described in counts I through VII, Defendants are "prohibited under the Doctrine of Promissory Estoppel from avoiding their obligations to [DeJoy]." Amended Complaint, P 93.

 Count X of the Amended Complaint alleges "an employment relationship/agreement" existed between DeJoy and Comcast Cable and that Comcast Cable "violated its covenant of good faith and fair dealing ...


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