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August 26, 1999


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 performance evaluation.

Because plaintiff's January 1997 evaluation and events leading up to that evaluation allegedly played an important role in her employer's decision to require plaintiff to return to full-time status, we will examine the facts presented in greater detail. The evidence shows that Chubb employees receive performance reviews generally on an annual basis. (Aff. of Barbara Nisivoccia ¶ 9.) An employee can receive one of six ratings regarding whether they have met their performance goals. From best to worst, the ratings are: "Exceeded All," "Exceeded Some," "Met All," "Met Most," "Met Some," and "Did Not Meet." (Id.) Prior to receiving performance reviews, employees are required to complete self evaluation forms so that supervisors are aware of the employees' evaluations of their own performances. (Id.)

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. ¶ 10.)

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 supported 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. 1991).

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 part:

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 ...

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