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DITZEL v. UNIVERSITY OF MED. & DENTISTRY OF NEW JE

April 14, 1997

HARRY HERBERT DITZEL, III, Plaintiff,
v.
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, STANLEY S. BERGEN, JR., BARBARA VANDERKOLK, JOHN DOES(S), individually and in their official capacities, Defendants.



The opinion of the court was delivered by: WALLS

 On January 31, 1994, plaintiff Harry Herbert Ditzel was fired from his position as Manager of Publications at the University of Medicine and Dentistry ("UMDNJ"). Ditzel, who is a white male and survivor of childhood cancer, alleges that he was harassed and discharged because of his medical condition and race. Defendants, however, contend that Ditzel was fired for poor performance and not for any discriminatory reason. Defendants have moved for summary judgment seeking dismissal of the complaint as a matter of law. Pursuant to Rule 78 of the Federal Rules of Civil Procedure, the Court determines these motions without oral argument and as unopposed because plaintiff's counsel failed to submit timely opposition papers.

 BACKGROUND

 Ditzel began working for UMDNJ in 1982 as a writer/editor in its Department of Government and Public Affairs ("GPA") and in 1988, he became a Manager of Publications within that department. As Manager of Publications, he reported directly to Carol Pilla, Director of University Communications. Pilla, in turn, reported to the Vice-President of the Government and Public Affairs. In September 1992, defendant Barbara Vanderkolk became Vice-President of Government and Public Affairs. At all times relevant to this dispute, defendant Stanley S. Bergen, Jr. ("Bergen") was President of UMDNJ.

 In the Fall of 1993, Vanderkolk gave Pilla and Ditzel primary responsibility for preparing UMDNJ's 1993 Annual Report ("Annual Report"). The Annual Report was first distributed during UMDNJ's "University Day" festivities on January 27, 1994. After they were distributed, defendants discovered that the document contained several errors: the law firm of the then-chair of the UMDNJ Board of Trustees was misidentified, information on racial background of UMDNJ staff had not been updated and certain health care centers affiliated with UMDNJ were omitted or misidentified. Of particular concern to Bergen and Vanderkolk, however, was that the identity of Dr. Albert Talone, a member of UMDNJ's Board of Trustees, and his photograph, were missing from the 300 copies that had been distributed before the error was discovered.

 On January 31, 1994, Vanderkolk sent both Pilla and Ditzel letters notifying them that they had been terminated. In her letter to Ditzel, Vanderkolk indicated that he had been terminated because of unsatisfactory work performance and failure to follow his supervisor's instructions and specifically noted "recent serious errors on the Annual Report and the directional pamphlets." (UMDNJ & Bergen Ex.D). After Ditzel and Pilla were terminated, their positions were consolidated and this new position was filled by Barbara Hurley, a white woman.

 In the February 2, 1994 issue of the UMDNJ newsletter "Health Extra," Vanderkolk published a statement entitled "A Message to the University Community," apologizing for the Annual Report. The entire statement reads:

 
Please accept my sincere apologies for several errors that appeared in the copies of the Annual Report that were distributed at last week's State of the University event. If you are in possession of one of these copies, please return it to our office and we will get you a corrected copy promptly.
 
Those of us in Government and Public Affairs pride ourselves on our commitment to excellence in our work. Appropriate actions have been taken regarding those individuals responsible for this serious breach of quality. A corrected version of the Annual Report is being printed, and quantities of it will be available to those of you who need it for recruiting and other external and internal relations activities.

 (UMDNJ & Bergen, Exhibit F).

 In this action, Ditzel claims that defendants unlawfully harassed and discharged him because of his race and medical condition and in retaliation for having criticized Vanderkolk's use of the term "white boys" and that Bergen and Vanderkolk unlawfully conspired against him to accomplish this purpose. Although he acknowledges that the Annual Report contained errors and that he was at least partially responsible for them, he asserts that they were not serious enough to warrant his termination and thus, were merely a pretext for unlawful discrimination. He also alleges that Vanderkolk's "Message to the University Family" defamed him and breached UMDNJ's agreement to maintain the confidentiality of his employment record. His Amended Complaint alleges violations of the New Jersey Law Against Discrimination ("NJLAD") and the Americans with Disabilities Act ("ADA"), breach of employment contract, defamation, federal and state constitutional claims and common law tort claims.

 Plaintiff is a survivor of Wilms' Tumor, an extremely rare form of childhood kidney cancer. As the result of massive doses of radiation he received as a child, he has suffered internal and external radiation burns, physical disfigurement and loss of his left kidney, appendix, half of his stomach and much of his intestines. Ditzel claims that soon after Vanderkolk was hired in September 1992, he asked to speak with her privately. and told her that he was a survivor of childhood cancer and that he had been recently hospitalized due to the secondary effects of his radiation treatments. He also assured her that he never let his medical condition or treatment impact his work.

 According to plaintiff, soon after he disclosed his medical condition to her, Vanderkolk began to treat him unfairly. In his words, she became "very cool -- or cruel" towards him. (Vanderkolk, Ex. A, Ditzel Dep. at 63). He also claims that Vanderkolk, who is white, discriminated against him because he is a white male. Specifically, he alleges that on various occasions, Vanderkolk used the term "white boys" as a pejorative description in his presence. Plaintiff, however, is only able to recall one specific incident when she used that term. He alleges that at a senior staff meeting in March 1993 during a discussion about possible nominees to the UMDNJ Board of Trustees, all of whom were white men, she turned to him and said "just what we need, another white boy." (Vanderkolk, Ex. A, Ditzel Dep. at 156). On May 28, 1993, in response to Vanderkolk's request for staff feedback in preparation for an upcoming staff retreat, plaintiff wrote to Vanderkolk expressing his concern over her use of the term "white boys." He wrote that "as someone who happens to be a white man, I've taken offense to and have been hurt by your derogatory use of the term 'white boys' on various occasions" because "it makes me feel like a target because of who I am by birth." (Bergen & UMDNJ Ex.G, at 2). His retaliation claim is apparently based on the belief that Vanderkolk terminated him because he criticized her use of the term "white boys."

 He also claims that Vanderkolk's unfair treatment of him includes a derogatory comment she made to him after the Star Ledger ran an article about efforts to airlift medical supplies to aid sick children in former Yugoslavia organized by plaintiff, Congressman Bob Franks and several pharmaceutical companies. He claims that she "coldly" said to him "Oh, are Congressman Franks' constituents Serbian?" (Vanderkolk Ex.A, Ditzel Dep., at 157).

 As further proof of defendants' discriminatory animus, plaintiff claims that Vanderkolk's derogatory statements were "punctuated" by the posting of certain magazine articles addressing diversity in the workplace on a department bulletin board located near his office because their headlines were offensive to white men. The first, an article from the National Business Employment Weekly, had the headline " Termination Trends: Mass Layoffs Tend to Spare Women, Minorities " and the next line read " Last Hired -- First Fired Rules Disappear. More Older White Men Receive Pink Slips." The other article that he deemed particularly offensive was entitled " The Demonizing of White Men " from the U.S. News and World Report. Although Plaintiff never bothered to read these articles, he believes that they were offensive to white men and that the U.S. News and World Report article stated that "white men are demons." (Vanderkolk, Ex. A., Ditzel Dep. at 165). He also suggests that UMDNJ's "Workforce 2000" program aimed at increasing diversity in the UMDNJ workforce and Vanderkolk's active support of the program are further evidence of the discriminatory animus which led to his firing on January 31, 1994.

 Plaintiff admits that he did not have a written employment contract with UMDNJ. Nonetheless, he claims to have had a general understanding, based on memoranda, favorable employment evaluations and job descriptions, that if he performed his work satisfactorily he would not be terminated. He acknowledges, however, that he received nothing in writing from UMDNJ confirming this presumption and admits that he read the UMDNJ Staff Handbook which defined his employment as "at will." Plaintiff also claims that Vanderkolk's "Message to the University Family" was false and that she published it to injure his reputation. He claims that her statement injured his reputation and caused him great pain and mental anguish.

 Defendants have now brought separate summary judgment motions seeking to dismiss the Amended Complaint as a matter of law. For convenience and in view of the similarity of their arguments, the Court refers to them collectively as defendants' motions. In their papers, defendants contend that Ditzel was terminated as the result of his own professional incompetence, as evidenced by the Annual Report debacle, and not for any discriminatory reason. According to defendants, soon after the Annual Report was distributed, Bergen sent a personal apology to Talone apologizing for his unfortunate omission and promising him that "actions will be taken." (Bergen & UMDNJ, Ex. B). They further allege that Bergen conveyed his displeasure to Vanderkolk and told her that he wanted the people responsible for the errors fired. They note that on January 28, 1994, Pilla, with Ditzel's knowledge, sent a memorandum to Vanderkolk acknowledging the serious mistakes made in the Annual Report, admitting fault and apologizing. (Bergen & UMDNJ, Ex. C). In the memorandum, Pilla even suggested that she and Ditzel would be willing "to send a letter of apology to Dr. Talone." (Id.) Vanderkolk claims that in addition to being extremely embarrassing, correcting the errors cost UMDNJ $ 25,000 over the $ 35,000 originally budgeted for the Annual Report. Furthermore, as she alluded to in Ditzel's termination letter, Vanderkolk claims that his poor performance predated the Annual Report debacle and cites his failure to adequately develop a style book for UMDNJ's publications, inferior work on a project involving directional maps and brochures, and history of proofreading errors.

 As for plaintiff's purported evidence of discrimination, defendants claim that it cannot support any credible claim of unlawful discrimination. Vanderkolk denies that she discriminated against plaintiff on the basis of his race or medical condition. She notes that she accommodated his medical condition by frequently excusing him during staff meetings so that he could use the bathroom, the need to use the bathroom frequently being a side effect of his medical condition. Ditzel, in fact, concedes that Vanderkolk did accommodate him in this manner and never indicated that it was a problem. (See Vanderkolk, Ex. A, Ditzel Dep. at 58). While Vanderkolk admits that she made the "white boys" comment at the staff meeting, she claims that she was only making a sarcastic observation of the "attitudes of corporate America," ostensibly the practice of appointing white males instead of women and minorities to prominent positions and notes that her comment was obviously not directed at Ditzel. Moreover, she claims that immediately after Ditzel complained in writing about her use of the term "white boys," she publicly announced at the staff retreat that she would never use the term "white boys" again as shorthand for the "old guard" way of conducting business. In fact, Ditzel concedes that, after he complained, Vanderkolk never used the term "white boys" again in his presence.

 Vanderkolk, however, denies that she ever made the alleged comment about Congressman Franks, and asserts that even if she did, it was simply a sarcastic comment about a politician and not a statement directed at Ditzel because of his medical condition. Defendants further argue that Vanderkolk's "Message to the University Family" was not defamatory and did not breach any agreement to protect the confidentiality of his employment record because the statement was truthful and did not identify plaintiff by name or indicate what specific actions were taken against him. Finally, defendants argue that because it was well-established that plaintiff was an at-will employee, his termination did not breach an implied employment contract.

 DISCUSSION

 A. Summary Judgment Standard

 Once the moving party has carried its burden under Rule 56, "its opponent must do more than simply show that there is some metaphysical doubt as to the material facts in question." Matsushita Electric Industrial Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 89 L. Ed. 2d 538, 106 S. Ct. 1348 (1986). The opposing party must set forth specific facts showing a genuine issue for trial and may not rest upon the mere allegations or denials of its pleadings. Sound Ship Building Co. ...


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