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June 21, 1999


The opinion of the court was delivered by: Lechner, District Judge.


This is an action by plaintiff Samuel Kohn ("Kohn") against New Jersey defendants AT & T Corp. ("AT & T"), The WorldPartners Company ("WPC"), Bruce Leasure ("Leasure") and Kamie Zaracki ("Zaracki") (collectively, the "Defendants"). In an amended complaint (the "Amended Complaint"), filed on 21 January 1999, Kohn alleges violations of Title VII of the Civil Rights Act ("Title VII"), as amended, 42 U.S.C. § 2000e-1, et seq., 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. and State law claims for violations of the Conscientious Employee Protection Act ("CEPA"), N.J.S.A. 34:19-1, and defamation.

Presently pending is a motion by the Defendants for summary judgment (the "Summary Judgment Motion") pursuant to Fed.R.Civ.P. 56 ("Rule 56").*fn1 For the reasons which follow, the Summary Judgment Motion is granted. The remaining State law claims are dismissed without prejudice.


A. Facts

1. Parties

As Manager of Pricing and Business Analysis, Kohn was responsible for, among other things, negotiating an Integrated Global Discount ("IGD") among various telephone companies, Amended Complaint at ¶ 22, and compiling and maintaining a price book which analyzed prices charged by telephone companies. Id. at ¶ 29.

Kohn reported directly to Zaracki, then Director of Marketing and Acting Vice President of Marketing for WPC. Defendants' Rule 56.1 Statement at ¶ 3. When Leasure became Vice President of Marketing in or about September 1996, Zaracki began reporting to Leasure, who in turn reported to Simon Krieger ("Krieger"), President of WPC. Id.; see also Zaracki Aff. at ¶ 2.

2. Performance Reviews of Kohn

According to Zaracki, during the second half of 1996 she began receiving complaints concerning the work performance of Kohn. Zaracki Aff. at ¶ 3. Specifically, in August 1996, Zaracki states she was apprised of two incidents where Kohn engaged in sexually harassing behavior towards two female employees. Id. Kohn, however, denies having engaged in any sexually harassment. See Amended Kohn Rule 56.1 Statement at ¶¶ 4, 20. Zaracki nevertheless states she investigated these incidents and counseled Kohn concerning his inappropriate behavior. Zaracki Aff. at ¶ 3*fn3

In or about August 1996, Zaracki states she again met with Kohn (the "August 1996 Meeting") to discuss a "Career Plan Summary" of the performance expectations and future goals of Kohn. Id. at ¶ 4*fn4 The Career Plan Summary states, in relevant part:

  [Kohn] desires to further his advancement within AT &
  T and to obtain an overseas assignment. To indicate
  his readiness for such advancement, [Kohn] must
  • Subject matter expertise in the area of
    international pricing and the relevant WPC/WPA
    processes and policies associated with influencing
    of pricing strategy WorldSource SM Services across
    the Association.
  • Successful leadership of a broad range of
  Partnership, WPC and Member teams in the achievement
  of mutual goals/objectives for WorldSourceSM

[Kohn] has only just joined WPC as the Pricing and Business Analysis Manager. He should continue in this position for at least 2 more years. This position will give [Kohn] the opportunities to demonstrate his readiness for advancement or placement in an overseas assignment. To facilitate this personal development, [Kohn] should concentrate his efforts in the following areas:

1. Improving his interpersonal skills and cultural
   awareness by demonstrating effective relationship
   management with peers, customers and suppliers
   — recognizing cultural differences and
   modifying his management approach to their needs.
2. Improving his ability to plan and organizing work
   activities. [Kohn] must focus on `making it easy' for
   others to support his projects, complete

   activities necessary for WPC success, etc.
3. Demonstrate his willingness and ability to help
   others succeed while ensuring that his business
   objectives are also being met. This will require
   [Kohn] to successful [sic] multi-task while producing
   quality work on time.

Career Plan Summary. Zaracki states that during the August 1996 Meeting, she advised Kohn he needed to improve upon his interpersonal skills, cultural awareness and ability to plan and organize work activities. Zaracki Aff. at ¶ 4.

Following the August 1996 Meeting, Zaracki states she "continued to receive complaints about Kohn's work performance and his interactions with other employees." Id. at ¶ 5. Zaracki also states she personally observed "deficiencies in Kohn's performance, including the fact that he was missing commitments and was having difficulty managing his projects." Id. As a result, Zaracki states she held a "coaching/feedback session" with Kohn in October 1996 (the "October 1996 Feedback Session") to help Kohn improve his performance. Id. She describes the session as follows:

  During this session, I advised Kohn that his work
  performance was declining and that his peers and
  clients were complaining about his behavior and lack
  of respect, and that if he did not improve, he would
  be in danger of receiving a `Partially Met' appraisal
  rating for the year. I also provided Kohn with a
  Coaching/Feedback [D]ocument*fn5 which described his
  career objectives and detailed the skills needed for
  him to succeed.


During the October 1996 Feedback Session, Zaracki states she also provided Kohn with a written Development Plan detailing her expectations for him for the remainder of 1996. See id. at ¶ 6.*fn6

Also during the October 1996 Feedback Session, Zaracki states she "discussed with, and provided to, Kohn, numerous examples of his inappropriate behaviors and performance deficiencies." Id. She additionally states she prepared and provided to Kohn a document entitled "Illustrative Examples — S. Kohn Development Opportunities" (the "Illustrative Examples Document") which detailed examples of his inappropriate behavior.*fn7 Zaracki then recommended Kohn contact the Employee Assistance Program. Zaracki Aff. at ¶ 6.

According to Zaracki Kohn's "did not satisfactorily complete the Development Plan[.]" Id.*fn8

Kohn, by contrast, denied:

  that Ms Zaracki `continued to receive complaints'
  about [his] performance and interactions `throughout
  the second half of 1996.' There was only one instance
  during that period when this was brought to [his]
  attention, . . . [by way of the Illustrative Examples
  Document]. When [Kohn] followed up with the
  individuals identified [in the document], [he]
  discovered that they denied complaining or reporting
  the incidents reflected in the document. [He]
  concluded] that this document is simply further
  evidence of Ms. Zaracki's attacks on [him].

Kohn Certif. at ¶ 28. He further states:

Id. at ¶ 29.

Kohn asserts the "difficulties arose because of Ms. Zaracki's disregard for the legal problems raised by her instructions to me." Id. Specifically, Kohn states he "objected to carrying out [Zaracki's] instructions with respect to distributing certain price books because of antitrust reasons discussed with legal counsel for AT & T." Id. at ¶ 4; see also Amended Complaint at ¶¶ 30-31 (alleging that communications among telephone companies concerning pricing and publication of prices the companies agreed to charge violates antitrust laws).*fn9 He likewise alleges he failed to complete the IGD process development and trial documentation because "communications among different telephone companies concerning that `integrated global discount' may reasonably be thought to constitute a violation of the antitrust laws." Amended Complaint at ¶ 23; see also id. at ¶¶ 25-27; Kohn Certif. at ¶¶ 4, 5.

Kohn further asserts he "successfully completed in all material respects the [Development] Plan, insofar as it could be completed, without giving effect to illegal actions." Kohn Certif. at ¶ 8. Kohn opines his sensitivity to these alleged legal problems "prevented AT & T and the members of [WPC] from the legal liability that would have followed" had he completed his assigned tasks. Id. at ¶ 5.

It appears from a memorandum sent by Zaracki to Kohn, dated 29 October 1996, (the 29 October 1996 Memorandum) that Kohn was informed there were no legal impediments to completing his assignments. See 29 October 1996 Memorandum.*fn10 Kohn was directed to complete his projects, which had been "clearly identified" in his objectives since the preceding April, notwithstanding his reservations. See id.

3. Alleged Disability

Kohn additionally states he informed Zaracki during the August 1996 Meeting that he suffered from attention deficit disorder ("ADD"). See Kohn Dep. at 281:5-23; Kohn Certif. at ¶ 27; Amended Complaint at ¶ 5. According to Kohn, during that meeting he "asked [Zaracki] to speak with [his] physician to get details on the required accomodations [sic]; she declined. Only several months later did she refer it to [the Health Affairs division of AT & T ("Health Affairs")], and it was not until late February [of 1997], some six months after it was first brought to her attention, that a `report' was issued by Dr. [Joseph] Cillo [("Dr.Cillo")]." Kohn Certif. at ¶ 27. The Defendants, however, assert: "Kohn never specified any accommodations he needed to ensure that he could complete the projects that he was assigned as part of his job responsibilities." Defendants' Rule 56.1 Statement at ¶ 8.

It appears that on or about 25 November 1996, Zaracki forwarded a "Request for Employee Fitness Evaluation" to Health Affairs to have Kohn evaluated for his alleged ADD. See Zaracki Aff. at ¶ 7*fn11 In or about February 1997, Zaracki received a written evaluation from Dr. Cillo (the "Cillo Evaluation"). See id.; see also Kohn Certif. at ¶ 27. The Cillo Evaluation, dated 21 February 1997, provided:

  [Kohn] has a medical condition which if optimally managed should not
  interfere with his ability to perform his job. Recommendations for the
  workplace include the following: He needs a clear statement about
  productivity and the outcome expected in a clear set of objectives and
  milestones. This would certainly involve a formal performance
  improvement plan with well-understood time-bound goals.
  It is hoped that distractions and side issues will not be a problem if
  the expectation is clear that he focus on what is important to
  accomplish his job. He must be urged not to dwell on his perceptions of
  supervisors' feelings or `office politics,' but focus on the job at

Cillo Evaluation.*fn12 Zaracki states she discussed the content of the evaluation with Dr. Cillo. Zaracki Aff. at ¶ 7.

Kohn asserts Zaracki failed to follow the instructions provided by Cillo, and instead "utilized [Kohn] disability to undercut [his] ability to perform." Kohn Certif. at ¶ 18; see also Amended Complaint at ¶¶ 45. In this regard, Kohn states Zaracki refused to hold weekly meetings and failed to provide him with "meaningful feedback" or certain documents needed to complete assignments. Kohn Certif. at ¶ 18; Amended Complaint at ¶ 53. Kohn alleges:

  Rather than accommodating [sic] [Kohn's] disability,
  Ms. Zaracki used that disability to create hostility
  and division in the workplace against [Kohn] and
  create barriers and obstacles to the successful
  completion of his objectives, in violation of the

Amended Complaint at ¶ 49.

4. Events Culminating in Termination of Kohn

On or about 24 February 1997, Zaracki again met with Kohn to discuss his deficient performance. See Amended Complaint at ¶ 61. Zaracki states that during the meeting, she provided Kohn with a Performance Appraisal for the period spanning from 15 March 1996 through 31 December 1996. Zaracki Aff. at ¶ 8; see also Performance Appraisal.*fn13 The Performance Appraisal observed, inter alia:

  [Kohn] successfully developed the WPC proposal for
  global discounts (IGD) and reviewed, it with Members
  and Partners to gain their input and support. His
  document on the IGD concept is well constructed and
  easy to understand. However, and more importantly,
  [Kohn] did not effectively manage the IGD concept into
  a workable plan. As project manager, [Kohn] was
  responsible for managing the IGD into market trial by
  12/96. This required obtaining Member commitment to
  participate in the trial as well as completion of the
  Trial Reference Guide documentation, a turn key
  document which explains the IGD concept, processes,
  roles/responsibilities and Member job aids associated
  with IGD. [Kohn] successfully obtained commitment
  from six Members to participate in the trial. He did
  not complete the IGD process development and trial
  documentation in the time frame required. Progress was
  so slow that the trial start date, which was the WPC
  President's commitment to the Partners, was in
  jeopardy. IGD team members repeatedly complained about

  lack of effective project management. As a result,
  [Kohn] was removed from the project.
  [Kohn] did prepare a draft outline of the pricing
  strategy document. However, it did not have sufficient
  detail to be meaningful. [Kohn] was notified by his
  supervisor that the outline was unsatisfactory. No
  revisions were submitted for review to his
  While [Kohn] completed [a WS-PL price book and work
  updating subsequent price books], the work was not
  completed in a timely manner. Delays in updating the
  price books prevented Members from quickly pricing
  initial customer bid requests. The outdated price
  books generated more work for the Members in pricing
  bids, thus adding to the bid cycle time and a [sic]
  creating a source of Member and customer
  dissatisfaction. [Kohn] prepared the Offer Management
  department budget. He did an adequate job, but
  required assistance from his supervisor to identify
  errors. In addition, his supervisor determined that
  [Kohn] was having difficulty effectively managing the
  IGD Offer Development and price book update projects.
  This combined with mediocre support of the budgeting
  process led his supervisor to conclude that [Kohn]
  would not be effective in leading the revenue forecast
  project. This critical job responsibility was assigned
  to another individual. [Kohn's] overall contribution
  to WPC in the area of business plan support was

Performance Appraisal at 1-2.

As a result of the findings in the Performance Appraisal, Kohn received a "Partially Met" performance rating. Zaracki Aff. at ¶ 8. Kohn then was presented with an Election Form, dated 24 February 1997, which gave him option of either (1) being placed on a Performance Improvement Plan (the "PIP"), which provided for the termination of his employment if he failed to improve his employment within sixty days, or (2) being permitted to search for another position full-time for sixty days, after which his employment would be terminated if he did not find another position. See Zaracki Aff. at ¶ 9; Election Form.*fn14 The Election Form further stated: "If employee declines to sign or choose an Option, he/she will be placed on a PIP immediately." Election Form. Because Kohn did not sign the Election Form, he was, by default, placed on the sixty day PIP. See Zaracki Aff. at ¶ 9; Amended Complaint at ¶ 37; Kohn Certif. at ¶ 23.

A document entitled "Performance Improvement Plan" (the "PIP Document") was then provided to Kohn. The PIP Document delineated the "skills required for success," "opportunities to demonstrate skills" and various "development benchmarks" to be employed by Kohn in improving both his management and interpersonal skills. See PIP Document.*fn15 The PIP Document also listed the managerial responsibilities of Kohn:

  [Kohn] shall be responsible for carrying out all
  phases of the pricing and business analysis projects
  assigned to him. This includes but is not limited to:
    • Ongoing Member deployment and certification
    • FR and PL Price Book updates and distribution
      to the required individuals
    • Development of pricing strategy document,
      updates and revisions based on supervisor(s)
    • Conducting price analysis with recommendations
      on WorldSource PL
    • Ongoing participation in win/loss review
    • Develop price structures and supporting
      documentation for WorldSource

      Source Toll Free Service (Freephone).


Kohn asserts the actives set forth in The PIP

  were not clearly defined and there were no objectively
  measurable performance criteria . . . Because such
  `objectives' were antithetical to the instructions by
  AT & T's Dr. Cillo, the application of PIP itself
  constituted a violation of the American with
  Disabilities Act, for Ms. Zaracki was taking advantage
  of [his] disability to assist in [his] being fired.

Kohn Certif. at ¶ 24; see also Amended Complaint at ¶ 62.

Zaracki states Kohn did not successfully complete the terms of the PIP. Zaracki Aff. at ¶ 11. Zaracki memorialized her findings a "PIP Results" document, dated 6 May 1997, (the "PIP Results Document") which reflected her assessment of the performance of Kohn as measured against the conditions and objectives set forth in the PIP document. The PIP Results Document stated; inter alia, Kohn failed to complete the "Pricing Strategy Document" or conduct "PL Competitive Price Analysis[.]" See PIP Results Document.*fn16 It further observed Kohn "[d]id not take full responsibility for all decisions (i.e. price book)," "constantly attempted to get others to complete his activities (i.e. price book, price strategy document)," and "[d]id not complete activities on time[.]" Id.

Kohn does not contest that he failed to meet the requirements of the PIP. See Amended complaint at ¶ 64. He simply states Zaracki had extended the deadlines of various assingments and told him to ignore certain projects. See Kohn Certif. at ¶¶ 31-33.*fn17 Kohn attributes other failures to vaguely referenced "legal and regulatory problems." Id. at ¶ 31; Amended Complaint at ¶¶ 64-66.

Zaracki subsequently recommended Kohn be terminated from his position with WPC, in light of his failure to successfully complete the PIP. Zaracki Aff. at ¶ 11. According to Zaracki, both Leasure and Krieger concurred in and approved her recommendation. Id.

On 8 May 1997, Kohn was terminated from his position with WPC. See Zaracki Aff. at ¶ 12. By letter, dated 8 May 1997, (the "8 May 1997 Termination Letter") Zaracki informed Kohn he had not met the terms of the PIP and had thirty days within which to find another position within AT & T. See 8 May 1997 Termination Letter.*fn18 Kohn was directed to report immediately to the AT & T Resource Center and to take his personal belongings with him. Id.

By letter, dated 30 May 1997, (the "30 May 1997 Extension Letter") Kohn was provided with a thirty-day extension of time within which to utilize the AT & T Resource Center to find another position with AT & T. See Zaracki Aff. at ¶ 12; 30 May 1997 Extension Letter.*fn19 While Kohn searched for another position, Zaracki, Leasure and Krieger agreed to extend him on the AT & T payroll until 20 June 1997. See Zaracki Aff. at ¶ 12. It appears, however, Kohn did not obtain another position with AT & T. See id. Consequently, Kohn was removed from the AT & T payroll, effective 20 June 1997. Id.; Kohn Certif. at ¶ 25.

5. The Instant Complaint

As mentioned, Kohn filed the Amended Complaint on 21 January 1999. He alleges, inter alia, he was illegally terminated and discriminated against "by reason of his age, his religion and his disabilities," in violation of Title VII, the ADEA and the ADA. Amended Complaint at ¶¶ 1, 5. The Amended Complaint also alleges Zaracki and Leasure engaged in discriminatory conduct, including:

  [Zaracki's] failure to provide [Kohn] with clear
  objectives and criteria regarding job expectations and
  reasonable managerial support and providing
  contradictory direction to [Kohn], her sabotaging
  [Kohn's] pricing work by directing co-workers of
  [Kohn] not to cooperate with him and providing
  misinformation to [Kohn] and his co-workers, her
  attempt to isolate [Kohn] from his co-workers, her
  failure to accomodate [sic] [Kohn's] observance of
  Jewish holy days and dietary requirements, as well as
  her failure to follow AT & T-required procedures to
  address alleged deficiencies in his work, which
  procedures were necessary by virtue of his
  disabilities as shown by AT & T's own medical
  evaluation. Before terminating an employee with
  perceived unsatisfactory performance behavior, these
  procedures were required by AT & T in devising and
  following through on a PIP . . . which was necessarily
  to be in writing and followed through by discussion
  and explanation to the affected employee.
    The PIP set up by Ms. Zaracki and Mr. Leasure was set up with the
  intention of forcing [Kohn] to leave AT & T. The PIP was not used as a
  tool to help the employee but, rather was set up and used as a means to
  terminate [Kohn]. The alleged plan consisted of vague and obtuse
  objectives combined with unclear subjective non-measurable performance

Id. at ΒΆΒΆ 10-11. As stated, Kohn alleges, "these actions were motivated by discrimination against him by reason of his age, his ...

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