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SILVESTRE v. BELL ATL. CORP.

July 15, 1997

MANUEL SILVESTRE, Plaintiff,
v.
BELL ATLANTIC CORP., et al., Defendants.



The opinion of the court was delivered by: WOLIN

 WOLIN, District Judge

 This case is before the Court on the motion for summary judgment submitted by defendants the Bell Atlantic Corporation ("BAC"), Bell Atlantic-New Jersey ("BA-NJ"), Michael Losch, Bill Williams, and Raymond Smith. Plaintiff Manuel Silvestre has opposed summary judgment. The Court has considered the motion under Federal Rule of Civil Procedure 78. For the reasons stated herein, the defendants' motion for summary judgment will be granted on all counts.

 Silvestre alleges several causes of action against the defendants. In his first and second counts, Silvestre alleges that in October of 1984 the defendants discharged him because of his age (47 at the time of termination), national origin (Philippines), and race (Asian-Pacific Islander), in violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. section 10:5-1 et seq. and 42 U.S.C. section 1981. In his third count, Silvestre alleges that the defendants also conspired to terminate his employment in violation of 42 U.S.C. sections 1985(3), 1986, and 1988. In his fourth count, Silvestre alleges that the defendants are liable for outrageous conduct, deceit, and the prima facie tort. In his fifth count, Silvestre alleges tortious and intentional interference with contract. In his sixth count, Silvestre alleges negligent hiring and supervision. Silvestre alleges as his seventh count intentional infliction of mental and emotional distress. Lastly, Silvestre makes claims under the Employee Retirement Income Security Act of 1974 ("ERISA"), 29 U.S.C. ┬ž 1132(a)(3) and 1140. In his ninth count, Silvestre claims a right to punitive, compensatory, and exemplary damages, back pay, reinstatement, attorneys' fees, interest, and costs.

 The defendants move for summary judgment on each count.

 BACKGROUND

 I. Silvestre's Performance at BAC-NJ

 Silvestre was employed by BAC-NJ between September 11, 1972 and October 31, 1994. Silvestre did not receive a promotion in the fifteen years prior to his termination. (Silvester Dep. at 383:22-385:22.)

 In his 1991 Management Performance Appraisal and Development Plan, Silvestre's supervisor Kiliany rated Silvestre "MA" (meets all requirements) in the Communication Skills-Oral/Written category. (Pl. 12G P 39.) Kiliany rated Silvestre this "MA" score in 8 of 11 categories. (Id.) Kiliany rated Silvestre an "FE" (far exceeds) in the "Planning/Organizing/Controlling Skills" category. (Id.) Kiliany rated Silvestre "MM" (meets most) in the Job/Functional Knowledge category. (Id.)

 In his 1992 Management Performance Appraisal and Development Plan, Kiliany rated Silvestre's skills at better than average and above average. (Id. P 40.)

 William Kiliany provided a January through June of 1993 appraisal for Silvestre. (Id. P 30.) This appraisal contained no numbered ratings, but praised Silvestre's performance. (Id. P 30, 32.)

 Williams signed this evaluation on March 11, 1994. Silvestre clams that he did not see the evaluation until he requested it in September of 1994, at which time Williams immediately produced the evaluation.

 A 1994 Performance Agreement prepared by Silvestre and Williams identified Silvestre's "Primary Assignments" and "Objectives" for the 1994 work year. (Silvestre Dep. at 96:11-98:15; Dee Aff., Ex. O.) The listed objectives included: (1) to redesign monthly tracking reports for each of the Operating Telephone Company departments by the end of the first quarter, (2) to review tutorials and increase proficiency in both VIVID and WordPerfect by year-end, (3) to attend training courses for OPUS and SFS, (4) to meet with representatives to design a vehicle to communicate budget/actual impacts and to communicate with representatives on a monthly basis, (5) to prepare best view analyses, and (6) to design department tracking reports for Al Koeppe's direct reports. Silvestre indicates that he did not receive the objectives until late March of 1994. (Pl. 12G P 57.)

 Silvestre admits that although he was employed until October 31 of 1994, he had not finalized any tracking reports for the seven OTCs. (Silvestre Dep. at 98:22-99:5, 104:5-17.) Silvestre indicates that he was in the process of doing so at the time of his termination. (Pl. 12G P 57.)

 Silvestre claims that he did not pursue VIVID or WordPerfect because his work requirements did not dictate the need and he did not have the time. (Silvestre Dep. at 99:6-100:12, 101:15-102:1, 165:2-4.)

 Silvestre admits that he did not attend any training courses for OPUS or SFS and was not proficient in either. (Id. at 102:2-25.) He indicates that the reason was because he was not "assigned to any." (Pl. 12G P 57.)

 Silvestre admits that he did not meet with representatives or contact them monthly. (Id. at 106:5-108:25.)

 Silvestre admits that he did not prepare the best view analyses. (Id. at 109:25-111:23.) He indicates that this was because he was instead assigned the functions of Michael O'Brien, who transferred to Philadelphia. (Id. at 110:4-22.)

 Silvestre indicates that he completed the tracking reports, "but did not know whether or not they were utilized." (Id. at 105:20-25.)

 Williams' second evaluation of Silvestre covered the period between January and June of 1994. This evaluation criticized Silvestre's initiative, work ethic, and work habits. (Dee Aff., Ex. M.) Silvestre admits that he received this evaluation and signed it on July 15, 1994. Silvestre argues that he did not read the appraisal at this time, but was in a hurry and signed it and did not request a copy. (Pl. 12G P 49.)

 Williams' final evaluation of Silvestre covered the period of July through September of 1994. Silvestre admits to receiving and signing this appraisal on September 29, 1994. Silvestre indicates that he disagreed with the appraisal at the time and expressed his desire not to sign it and that he signed it despite his hesitations. (Pl. 12G P 52.)

 Silvestre alleges that the performance appraisals done by Williams for the second half of 1993 and the first half of 1994 did not accurately reflect his abilities and made unfounded criticisms. Silvestre also alleges that these evaluations were concealed from him or presented to him in a manner that prevented him from being able to voice his disagreement.

 In past decades, BAC was divided into geographical regions. Each of the operating companies, BA-NJ, Bell Atlantic-Pennsylvania, Bell Atlantic-Delaware, Bell Atlantic-Virginia, Bell Atlantic-West Virginia, Bell Atlantic-Maryland, and Bell Atlantic-Washington D.C., had its own Board of Directors and controlled operations within its geographical area.

 In early 1993, however, BAC began to restructure to operate pursuant to lines of business, rather than geographical areas. The BAC Finance Department began to reorganize the existing regional finance operations of its seven operating companies into a "Line of Business" ("LOB") structure. The Finance Department re-engineered and realigned work functions and consolidated redundant functions among the operating companies. LOB restructuring also resulted in the elimination of the BA-NJ Board of Directors and of the concomitant need to supply a separate BA-NJ Board of Directors with financial information.

 As early as March of 1993, BA-NJ finance employees, including Silvestre, were notified of the forthcoming restructure necessitated by the adoption of the LOB structure. BA-NJ informed employees, including Silvestre, of the factors that a Finance/Human Resources Task Force ("Task Force") would consider in future staffing decisions, including: the requirements of the new position, Human Resources staffing policies and guidelines, succession planning/developmental planning needs, job location, self-nomination, *fn1" diversity, and a candidate's skills, experience, and job performance.

 In early June 1993, Silvestre received a memorandum from the Task Force setting forth the staffing process for his salary grade. The memorandum indicated that "the LOB re-organization displaces personnel in some (but not all) existing organizations," and that some finance employees' positions would be eliminated. The memo cautioned all employees that "it may be in the best interests of the Company to make a job change that results in a better overall match of skills."

 Group meetings were held at this time to discuss the new organizational structure. Employees were told that there would be fewer jobs within the corporation as a result of restructuring.

 In 1993 and 1994, at "pizza lunches," personnel in the Finance Department discussed the reorganization of that department and Silvestre was told that positions would be eliminated and that employees should look for other jobs.

 During the second quarter of 1993, Silvestre was given the opportunity to transfer to another department, but opted to ...


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