The opinion of the court was delivered by: Joseph E. Irenas, U.S.D.J.
HONORABLE JOSEPH E. IRENAS
Presently before this Court is defendant, Momentum Systems Ltd.'s motion for summary judgment on plaintiff Robert G. Lincoln's claim that he was illegally terminated from his job in violation of the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq. ("ADA"), the Age Discrimination in Employment Act, 29 U.S.C. § 621 et seq. ("ADEA"), the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD") and for breach of contract. For the reasons set forth below, defendant's motion for summary judgment is granted.
Plaintiff, Robert G. Lincoln, was hired for a telemarketing sales position with defendant Momentum Systems, Ltd. ("Momentum") in November of 1992 at an annual salary of $30,000 plus commissions. At that time, Lincoln was 58 years old. By January 1993, Lincoln was promoted to the position of sales representative for the southeastern United States, one-third of Momentum's sales territory, and given a salary increase to $36,000 per year plus commissions. (Lincoln dep. 29). In 1992, all sales representatives *fn1 received a salary plus their commissions. After a couple of years, however, due to financial difficulties, Momentum became unable to pay its sales representatives a salary. Therefore, beginning in 1994, plaintiff was compensated for his work through his commissions alone. (Id. at 43-46). In July 1995, Lincoln relocated from New Jersey to North Carolina, which was part of his sales territory. (Id. at 31-34). According to Momentum, Lincoln was not successful as a sales representative for Momentum because he failed to reach the sales goal of $500,000 during the 1995 fiscal year. (Regina dep. 29). His total sales that year were $145,026.50. *fn2 (Shaw cert.). Momentum's then president, Len Yestal, gave plaintiff suggestions on how to improve his sales performance. (Lincoln dep. 62). In fiscal year 1995, plaintiff earned $24,197.67 in commissions; in fiscal year 1996, he earned $11,070.57 in commissions; and in fiscal year 1997 through March 31, 1997, plaintiff earned $11,380.93 in commissions. (Shaw cert.). Despite his alleged declining performance, plaintiff insists that during his entire course of employment at Momentum, he never received one unsatisfactory work evaluation, and he was never told that there was any problem with his job performance, skills or technical knowledge. (Lincoln dep. 61-63; Russella dep. 22- 24).
According to Momentum, in April 1997, it obtained funding that enabled it to upgrade its product so that its software could be run on Windows NT, instead of only on Unisys hardware. (Russella dep. 29; Lincoln dep. 83-84). According to Momentum, because the product was much more sophisticated and technically complex, it made plans to expand its sales operation. Momentum began selling its new Windows NT product in September 1997, and began installing the new product later in 1998. (Russella dep. 31,50). According to Momentum, this funding and the new product allowed it to pay salaries to recruit highly skilled sales representatives. Therefore, beginning in June 1997, Momentum hired twelve *fn3 new account executives at a annual salary of $50,000 plus commissions, all with substantial computer knowledge and established track records in sales. (Shaw cert.; Corr dep. 50). In its submissions, Momentum also explains that since the second half of 1997, when it began to hire additional sales people, it divided up the sales territory into smaller areas, rather than just the original three. (Corr dep. 73).
In June 1997, plaintiff suffered a stroke which left him with residual problems with his enunciation and his mobility. His condition forced him to take a medical leave. Defendant continued to pay for his health and disability policy premiums. Over the next five months, Lincoln stayed in contact with defendant consistently expressed his hope to return to work. (Lincoln dep. 68-69). At that time neither Lincoln nor his doctors could say when Lincoln would be well enough to return to work. Over the summer, while Lincoln was out, Momentum's sales manager, Danielle Russella and its vice-president, Joe Regina, tried to maintain his accounts. (Lincoln dep. 83). According to plaintiff, after he told Ms. Russella, his supervisor, that he expected to return to work soon, she said, "it will be good to have you back . . . ." (Lincoln dep. 77).
In November 1997, after Lincoln was out for five months, Momentum concluded that it was too costly to leave Lincoln's territory open any longer. (Corr dep. 66-67). Momentum's president explained "We were at the point where we raised substantial capital, we had this new development under way, and simply couldn't take a third of the country or whatever it was and just ignore it." (Id. at 66-67). In addition, in October 1997, Momentum learned that Lincoln had applied for long-term disability benefits with his private insurer, the Principal Life Insurance Company ("Principal"). (Shaw cert.). His disability form indicated that according to his doctor, his prognosis was "totally disabled" and that it was "unknown" when he would be able to return to work. (Lincoln dep. 97-103; Pl. Ex. 15). Based on this, around November 10, 1997, Momentum hired Bill Reiter, age 48, and assigned him to the southern states previously covered by plaintiff. (Russella dep. 46-47). Momentum also hired George Horas, age 57, and assigned him to the mid-Atlantic territory, which included some of Lincoln's previous territory. (Id. at 47-48). According to Russella, Bill Reiter had extensive experience directly applicable to Momentum's new NT product and fourteen years of selling data communication. (Id. at 51). Reiter entered his position at annual salary of $50,000 plus commissions. (Id. at 49).
In January 1998, Lincoln provided information about his medical condition to Principal, his long-term disability insurance provider. In answering the questions: "What are your present limitations and symptoms? How do they prevent you from performing your usual job duties?", Lincoln wrote: "Limp, walk slowly, can't speak correctly, can't stand for long periods of time. Can't speak to clients correctly, and can't stand and make presentations." In response to the questions: "Have you discussed returning to work with your doctor? If yes, what was the doctors opinion?", Lincoln wrote: "Yes. Give it a year." (Def. Ex. H).
On February 13, 1998, Lincoln wrote to Momentum's president, Thomas Corr as a follow-up to their February 12, 1998 telephone conversation. In this letter plaintiff informed Corr that he would be able to return to work by May 4, 1998, or possibly in April 1998. (Def. Ex. 21). Plaintiff also listed the seventeen states that made up his territory prior to his stroke and the five states he believed he could handle with the "new product." (Id.) On March 2, 1998, Corr sent Lincoln a letter terminating his employment with Momentum for the stated reason "we [Momentum] had no idea if or when you would be able to return to work following your stroke. Because of that, we had to hire a replacement to cover your former territory and we do not have any other current openings." *fn4 (Def. Ex. 24).
According to Momentum, not until eight months had passed did plaintiff begin to look for a new job. At that time, he went to two employment agencies and applied for one position as a stocker in a grocery store. (Lincoln dep. 176-77). In January 1999, plaintiff moved to Kentucky for six months to assist his brother in his brother's business. (Id. at 9-11).
On May 8, 1998, Lincoln filed a charge with the Equal Employment Opportunity Commission ("EEOC"), alleging violation of the ADA and ADEA. (See Compl. Ex. A). On August 13, 1998, the EEOC issued a dismissal of Lincoln's charges and a right to sue notice, stating that "the EEOC is unable to conclude that the information obtained establishes violations of the statutes." (Id.) Plaintiff filed the instant lawsuit on October 30, 1998 requesting relief pursuant to the ADA, ADEA, NJLAD and state contract ...