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FISCHER v. ALLIED SIGNAL CORP.

September 4, 1997

DAVID R. FISCHER, Plaintiff,
v.
ALLIED SIGNAL CORP., et al., Defendants.



The opinion of the court was delivered by: WOLIN

 WOLIN, District Judge

 At age 39, plaintiff David Richard Fischer ("Fischer") was terminated as an employee of defendant Allied Signal Corporation ("Allied"). At the time of termination, Fischer had been a manager in Allied's Engineering Plastics Department for roughly two years. Allied terminated Fischer's employment in the context of a reorganization of the Engineering Plastics Department. The reorganization eliminated Fischer's prior position and left the department with seven newly-structured managerial positions. Fischer, as well as all other individuals who held managerial positions prior to the reorganization, had to reapply for a managerial position within the Engineering Plastics Department. Fischer applied for five of the seven newly-created positions. Fischer was not selected for any of the five slots. Allied filled the five positions with individuals who were 55, 47, 42, 38 and 32 years old. Fischer alleges that he was not selected for one of the five positions because of his age. Consequently, Fischer contends that Allied violated New Jersey's Law Against Discrimination ("NJLAD"), N.J.S.A. §§ 10:5-12. Fischer also alleges claims for breach of implied contract of employment and promissory estoppel.

 Before the Court today is Allied's motion for summary judgment. The Court has reviewed the written submissions of the parties and decides this motion pursuant to Federal Rule of Civil Procedure 78. The Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1332. Allied's motion requires the Court to examine the elements of a prima facie case of age discrimination under NJLAD. As discussed herein, the core of a prima facie case is evidence adequate to create an inference of age discrimination. Because the facts of this case do not give rise to such an inference, the Court concludes that Fischer has failed to prove his prima facie case of age discrimination. The Court also concludes that no implied contract of employment nor promise of employment existed in this case. As a result, the Court will grant Allied's motion in its entirety.

 I. FACTS

 Fischer began his employment with Allied in 1983 and, over the next eight years, held various positions at Allied. See Fischer Aff. PP 1, 4-5. In 1991, he was promoted to the position of Select Industries ("SI") Manager, the position he held at the time of the reorganization, as described below. See id. P 6.

 A. Select Industries Manager

 Fischer's responsibilities as SI Manager covered the Lawn and Power Industry, the Electrical/Electronic ("EE") Industry, Select Industries (office furniture and wheelchair components), and Distribution. See id. P 8. By the end of 1992, total sales under Fischer's supervision were $ 50,919,000, of which Lawn and Power contributed over $ 38,253,000 or 75.1%. See id. P 9. In addition, Fischer managed twelve Allied employees, including three managers. See id. P 10.

 As SI Manager, Fischer reported directly to the Director of Sales in Allied's Engineering Plastics Department in Morristown, New Jersey. See id. P 7. At the time Fischer assumed the position of SI Manager, the Director of Sales was Gary Blackwood. In February 1993, Blackwood was replaced by Michael Apperson, a defendant in this case. *fn1" Prior to the reorganization, there were five manager-level positions in the Engineering Plastics Department sales division who reported directly to Blackwood and later to Apperson. See id. P 17.

 B. The Reorganization

 By late 1992, senior management at Allied had determined that the Engineering Plastics Department was in need of a reorganization. See Parliman Aff. Ex. B at 158:16 - 159:1 ("Apperson Dep."). On March 31, 1993, Apperson announced the terms of a plan to restructure the department. See id. Ex. C at 71:7-21 ("Fischer Dep.").

 The terms of the reorganization involved the creation of seven newly titled manager-level positions in the Engineering Plastics Department. All existing managers, including Fischer, were allowed to apply for these jobs when they were posted. See Fischer Dep. at 103:17 - 104:2; Apperson Dep. at 305:5-10. Plaintiff applied for five of the new positions: (1) West Regional Sales Manager; (2) East Regional Sales Manager; (3) Lawn and Power Manager; (4) Furniture/EE Manager; and (5) Distributors/Compounder Manager. See Fischer Dep. at 98:13 - 99:4.

 According to the posted job descriptions of the newly created managerial positions, the Regional Sales Managers (East and West) would each be responsible for approximately $ 60 million in sales and between ten and fifteen employees. See Fischer Aff. P 11. Thus, in his capacity as SI Manager, Fischer managed a total sales volume and an Allied sales force similar in scope to those of the new East and West Regional Sales Managers.

 In addition, as SI Manager Fischer was responsible either directly or in a supervisory capacity for all of the duties of the newly created position of Lawn and Power Manager. See id. P 12. As SI Manager, Fischer's functions and responsibilities with regard to the Lawn and Power Industry matched the functions and responsibilities of the new Lawn and Power Manager as laid out in the job description of that position. See id. P 15.

 In all, approximately thirty internal candidates, as well as three external candidates, applied and were interviewed for the seven managerial positions. See Apperson Dep. at 305:5-10. Fischer interviewed for the new positions on April 29, 1993. In May 1993, Fischer was advised that he would not be placed in any of the newly established managerial positions and his employment was effectively terminated. See Fischer Dep. at 5:17 - 6:3.

 C. Fischer's Managerial Skills

 On April 13, 1993, prior to interviewing any of the managerial candidates, Apperson held a management resource review meeting with several other Allied employees, including George Rose (the Human Resources Manager for Engineering Plastics) and Krish Rao (the Director of Research and Technology). At that meeting, Apperson discussed the reorganization and a number of the candidates for the new positions. Apperson recalls noting at the meeting that Fischer "clearly needed to work on his management skills because his style was intimidating to a number of people." Apperson Dep. at 462:23-25. Apperson also recalls indicating that Fischer "had a fairly good history of working very diligently to fulfill commitments . . . and had a good knowledge of a number of different [Allied] businesses . . . ." Id. at 461:16 - 462:22.

 Apperson stated that he based his negative appraisal of Fischer's management skills on a number of incidents. First, on February 22, 1993, soon after Apperson became Sales Director, he attended a quarterly meeting of Fischer's group, run by Fischer. This was the first time that Apperson and Fischer met. Apperson observed that the meeting was "very poorly run," with "minimal structure" and "minimal consistency, if any, between the presentations." Id. at 434:25 - 435:4. Apperson also observed that Fischer's treatment of his staff varied from one employee to another, and that Fischer was "antagonistic" and "aggressive" toward Terry Rosell, one of his subordinates. See id. at 435:7-24. Apperson noted that Fischer's actions "appeared to cause discomfort in the rest of the room." Id. at 436:16-22.

 Fischer, however, claims that the quarterly meeting went well. See Fischer Aff. P 44. He claims that it was ordinary and uneventful and that there were no problems between Rosell and him. See id. P 45. In fact, Rosell testifies that the meeting "was well run by Fischer" and that Fischer was in no way antagonistic toward him. See Rosell Aff. PP 29-36. Rosell's testimony that the meeting was well-run and without incident is supported by the testimony of two other employees who attended the meeting, as well as that of Blackwood. See Pilotti Aff. PP 18-22; Gibson Aff. PP 28-32; Sabourin Aff. Ex. C at 40:14 - 41:24 ("Blackwood Dep.").

 Apperson also claims that he based his negative assessment of Fischer's managerial skills in part on statements made by two of Fischer's subordinates, Rosell and Brian Robinson, who stated that Fischer's management style was "one of intimidation versus working together." See Apperson Dep. at 341:4-10; 377:3-10. Apperson further testified that Blackwood and Patrick Mulvey (the Director of Marketing and Business Development in Engineering Plastics) corroborated these allegations. See Apperson Dep. at 377:14 - 378:7; 469:17 - 470:11.

 Blackwood swears, however, that he does not recall ever telling Apperson that Fischer had problems in dealing with his personnel, or saying anything negative about Fischer's performance. See Blackwood Dep. at 43:11-24.

 Apperson testifies that both Rosell and Robinson approached him with concerns over a request by Fischer that his subordinates complete a performance review of Fischer and return it to Fischer. Rosell and Robinson allegedly were concerned about the possibility of retribution from Fischer if the responses were unfavorable. See Apperson Dep. at 330:4 - 331:25; 335:2-12; 339:5 - 341:10.

 As further support for his negative appraisal of Fischer's managerial skills, Apperson recounts another incident involving Fischer and a subordinate. Apperson swears that Robinson had described to him an incident in which Robinson had suggested that Allied participate in a program to donate power tools to victims of a hurricane in the Southeast. Robinson was unable to find Fischer at the time, so he approached Blackwood with the proposal. Apperson testifies that Fischer became enraged when he learned that Robinson had gone over his head, and threatened him with termination if it happened again. See Apperson Dep. at 341:10 - 344:5.

 Finally, Apperson claims that his negative assessment of Fischer's managerial skills stemmed partly from an incident relayed to Apperson by Rosell, in which Fischer had handled himself inappropriately at a meeting with a large customer causing the customer to become upset, to ask Fischer to leave, and to tell Rosell never to bring Fischer with him on a sales call again. See id. at 326:7 - 327:14.

 Rosell, however, testifies that the customer never requested that Fischer not attend such meetings. See Rosell Aff. P 48. Additionally, Rosell swears that he did not tell Apperson, or anyone else at Allied, that the customer had made such a request. See id. at 49.

 During his tenure as SI Manager, Fischer generally received high marks and praise for his work. See Fischer Aff. P 39 and Ex. B. Fischer's performance reviews from 1991 to 1993, completed by Blackwood, were almost uniformly positive. See Fischer Aff. P 40 and Ex. B. Fischer was rated highly both on his managerial skills and on the results he achieved. See Fischer Aff. Ex. B. On Fischer's performance review dated March 23, 1993, his final review at Allied, he received the highest possible overall rating. See id. Blackwood testifies that he felt his reviews of Fischer's work were accurate. See Blackwood Dep. at 39:16-23.

 D. TQ Facilitator

 In addition to his duties as SI Manager, Fischer was a Total Quality ("TQ") Facilitator at Allied. Fischer volunteered for the position of TQ Facilitator in late 1991 and became a certified Facilitator during the first quarter of 1992. See Fischer Aff. P 24. At that time, Fischer was told by Bill Gruebel, Blackwood's direct supervisor, that volunteering to become a TQ Facilitator would enhance Fischer's career and provide promotional opportunities for Fischer at Allied. See id. P 26. Fischer received similar advice from Blackwood. See id. P 27. In addition, all the Facilitators, including Fischer, received a memorandum from the CEO of Allied, L.A. Bossidy, which stated that volunteering to be a facilitator would help accelerate career growth. See id. Ex. A.

 Service as a TQ Facilitator involved additional time and effort on Fischer's part for no direct or immediate monetary reward. The position required Fischer to take regular trips to New Jersey and participate both in the development of the TQ program and in the subsequent training program to become a Facilitator. See id. P 29. In addition, the record reflects that Fischer was successful in his role as a TQ Facilitator. See id. P 30 and Ex. B. According to an August 1992 ...


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