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KENNEDY v. CHUBB GROUP OF INS. COMPANIES
August 26, 1999
MARGARET KENNEDY, PLAINTIFF,
CHUBB GROUP OF INSURANCE COMPANIES AND PEGGY NADBIELNY, DEFENDANTS.
The opinion of the court was delivered by: Cooper, District Judge.
This matter comes before the Court on the motion by defendants
Chubb Group of Insurance Companies ("Chubb") and Peggy Nadbielny
("Nadbielny") for summary judgment pursuant to Federal Rule of
Civil Procedure 56. For the reasons stated, the motion is granted
in part and denied in part.
Plaintiff was employed by defendant Chubb from 1984 to 1997 as
a Programmer and most recently served in the position of a
"Programmer Analyst." In 1990, Chubb approved plaintiff's request
to be switched from full-time employment to "short-week status"
in order to allow plaintiff to care for her son who suffers from
autism and a severe seizure disorder. Chubb permitted plaintiff
to remain on short-week status from 1990 to January 1997.
The instant dispute arose because Chubb required plaintiff to
return to full-time status in January 1997 or resign, shortly
after plaintiff received her annual performance evaluation.
Defendants maintain that the decision was precipitated by
negative feedback from one of plaintiff's clients concerning
plaintiff's work habits and capabilities. The negative feedback,
in turn, was considered in connection with plaintiff's 1997
At some point after receiving their performance reviews,
employees are required to meet with their supervisors to complete
a "competency assessment" form. The "competency assessment" was
introduced in mid-1996 as a tool used to facilitate discussions
between employees and their supervisors concerning employees'
development needs and performance goals for the upcoming year.
Because 1996 was the first year that the "competency
assessment" was utilized, plaintiff's evaluation process was
sequenced differently that year. In September 1996, plaintiff and
her supervisor, defendant Nadbielny, met to discuss plaintiff's
competency assessment. Nadbielny gave plaintiff a "Met Most"
rating, one level higher than plaintiff's prior evaluations. Both
Nadbielny and plaintiff characterize the competency assessment as
"basically positive." (Nadbielny Aff. ¶ 6.) Plaintiff certifies
that at their meeting, Nadbielny suggested that she try to
improve her response time on telephone calls. (Kennedy Aff. ¶
12.) Indeed, a review of the competency assessment form
demonstrates that under the category "customer focus," Nadbielny
stated that "it is important for [plaintiff] to strive for quick
turnaround on questions, problems and let customers know the
nature of her assignments." (Decl. of Franklin Steinberg, Esq.
("Steinberg Decl."), Ex. H.)
In October 1996, shortly after plaintiff's competency
assessment, Nadbielny's supervisor Linda Foell received negative
feedback from one of plaintiff's clients about plaintiff.
Specifically, the client allegedly told Foell that plaintiff's
overall service was poor, she did not understand the business,
and she did not promptly return telephone calls. (Foell Aff. ¶ 2;
Nadbielny Aff. ¶ 7.) Plaintiff spent more than one-half of her
time working on matters which concerned the particular client who
complained about plaintiff's work habits. (Nadbielny Aff. ¶ 7.)
Shortly after Foell and Nadbielny learned of the client's
dissatisfaction with plaintiff's performance, in November 1996,
Chubb announced an overall 5 percent reduction-in-force ("RIF")
in plaintiff's department, ITC. The RIF was to occur in the
beginning of 1997. Also during that period, plaintiff was asked
to complete a self evaluation in anticipation of her formal
evaluation in January 1997. Plaintiff's self evaluation,
completed on December 3, 1996, rated herself at a 4.11, which
translated into an "Exceeded Some" rating.
Plaintiff and Nadbielny met on December 23, 1996 to discuss
plaintiff's self evaluation, and Nadbielny told plaintiff that it
would be necessary for plaintiff to reevaluate her performance.
Nadbielny told plaintiff at that time that her supervisor had
received negative complaints about plaintiff. Specifically,
Nadbielny certifies that she told plaintiff that "her customers
had complained about her and had no confidence in her, that her
work should be better, that she had to be more productive."
(Nadbielny Aff. ¶ 9.) Plaintiff certifies that prior to this
time, the only specific comment that was made to her was to be
quicker to return phone calls. (Kennedy Aff. ¶ 23.) Plaintiff
further states that the comment regarding the prompt return of
telephone calls was only made "in passing." (Id.) Plaintiff
certifies that in the interim period between the competency
assessment and her self evaluation, plaintiff received no adverse
comment on her job performance (presumably other than the
reference to returning phone calls more promptly). (Kennedy Aff.
Plaintiff met with Nadbielny and Barbara Nisivoccia, a Human
Resources Manager at Chubb, on January 14, 1997 after plaintiff's
1997 performance evaluation was completed. Plaintiff was informed
at that time that the company was going to require plaintiff to
return to full-time status. (Nadbielny Aff. ¶ 11-13.)
Plaintiff maintains that her employer's ultimatum to return to
full-time status left her with no option other than to leave her
employment at Chubb. Plaintiff argues that her supervisors were
aware of her situation at home and the fact that plaintiff needed
to remain on short-week status to enable her to care for her son.
Plaintiff contends that by January 1997, her short-week worker
status "was the status quo, an accepted term and condition of her
employment that was tacitly acknowledged by both parties to the
employment relationship." (Pl.'s Br. in Opp'n at 9.) Plaintiff
resigned from her position at Chubb in January 1997.
After exhausting her available administrative remedies,
plaintiff filed the instant eleven-count Complaint asserting
claims against Chubb and Nadbielny under the following theories
of liability: (1) Count I: discrimination in violation of the Age
Discrimination in Employment Act ("ADEA"); (2) Count II: age
discrimination in violation of the New Jersey Law Against
Discrimination ("NJLAD"); (3) Count III: associational disability
discrimination in violation of the Americans with Disabilities
Act ("ADA"); (4) Count IV: associational disability
discrimination in violation of the NJLAD; (5) Count V: common law
claim of "fraudulent performance violation;" (6) Count VI:
defamation; (7) Count VII: breach of the implied covenant of good
faith and fair dealing; (8) Count VIII: breach of contract; (9)
Count IX: intentional interference with contractual relations,
(against Nadbielny only); (10) Count X: "violation of public
policy;" and (11) Count XI: intentional infliction of emotional
distress. (See Compl.) Defendants filed the instant motion for
summary judgment, raising several arguments in support of
dismissal which we will address below.
Federal Rule of Civil Procedure 56(c) provides that summary
judgment is proper "if the pleadings, depositions, answers to
interrogatories and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that the moving party is entitled to a judgment
as a matter of law." Fed.R.Civ.P. 56(c). The party moving for
summary judgment bears the initial burden of showing that there
is no genuine issue of material fact. Celotex Corp. v. Catrett,
477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once
the moving party has met its initial burden, the non-moving party
must present evidence that creates a genuine issue of material
fact making it necessary to resolve the difference at trial.
Id. at 324, 106 S.Ct. 2548. "By its very terms, the standard
provides that the mere existence of some alleged factual dispute
between the parties will not defeat an otherwise properly
motion for summary judgment; the requirement is that there be no
genuine issue of material fact." Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986). Material facts are only those facts that might affect the
outcome of the action under governing law. Id. at 248, 106
S.Ct. 2505; Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir.
Moreover, the role of the judge at the summary judgment stage
is not to weigh the evidence, but to determine whether there is a
genuine issue for trial. Anderson, 477 U.S. at 249, 106 S.Ct.
2505. "[T]here is no issue for trial unless there is sufficient
evidence favoring the nonmoving party for a jury to return a
verdict for that party. If the evidence is merely colorable or is
not significantly probative, summary judgment may be granted."
Id. at 249-50, 106 S.Ct. 2505 (citation omitted).
A. Plaintiff's Age Discrimination Claims under ADEA (Count I)
and NJLAD (Count II)
Because the proof requirements in a disparate treatment age
discrimination case are the same under the ADEA and NJLAD, the
Court will consider the first two counts of the Complaint
together. In this connection, plaintiff claims that her
employer's decision to require plaintiff to return to full-time
status was motivated by age-based discriminatory animus.
The substantive provision of the ADEA provides in pertinent
It shall be unlawful for an employer —
(1) to fail or refuse to hire or to discharge any
individual or otherwise discriminate against any
individual with respect to his compensation, terms
conditions or privileges of ...