The opinion of the court was delivered by: Joseph E. Irenas, U.S.D.J.
HONORABLE JOSEPH E. IRENAS
Defendants' Rimtec Corporation ("Rimtec" or "Company"), Teruhisa Koeda and Ray Johnston, Sr., move for partial summary judgment on plaintiffs' claims alleging age discrimination under 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 their claims of negligent and intentional infliction of emotional distress, malicious interference with existing employment relations or prospective economic advantage and loss of consortium. *fn1
For the reasons set forth below, defendants' motion for summary judgment is granted in part and denied in part.
Fifty-four year old plaintiff Richard Horvath, *fn2 commenced employment with defendant Rimtec, a plastics manufacturer, in or around April, 1969, and has been employed by Rimtec and its predecessor continuously for 31 years. During his tenure as an employee for Rimtec and its predecessor, plaintiff has worked as a Laborer, Production Line Worker, Quality Control Mechanic, General Foreman, Production Supervisor and Pilot Line Operator. Between 1989 and 1993, plaintiff was promoted twice, first in 1989 to Production Supervisor and in 1991 to General Foreman. He currently works in the position of Utility Coordinator.
In 1993, due to financial difficulties, the Company was forced to restructure. (R. Horvath dep. at 23-24; Johnston dep. at 79-80.) The General Foreman position was eliminated and plaintiff was moved back to his former position of day shift Production Supervisor. (Id.) Plaintiff's salary and benefits were not affected by the position change. (Id. at 77.) At the same time, Gary Woods, (in his 30's at the time) was moved into the position of Color Matcher and Richard Grzybowski (in his 30's at the time) was moved into the position of night shift Production Supervisor. (Id. at 25.) According to Grzybowski, Mr. Horvath trained both him and Mr. Woods over many years. (Grzybowski dep. at 31.) Plaintiff remained in the position of day shift Production Supervisor until May, 1996.
On August 30, 1995, Rimtec held a managerial meeting that was attended by nine supervisory employees and a Mr. Asami, an employee of Mitsubishi, Rimtec's co-owner at the time. (Eckman dep. at 26-33.) As was the common practice in meetings since 1992, Roger Eckman, Sr. took the minutes and prepared a memorandum ("Memo") entitled "Manager Meeting" which was later distributed to attendees and eventually circulated among Rimtec's employees. (Id. at 26-42.; Grzybowski dep. at 28-30; Pl. Ex. F.) Mr. Eckman testified that he typed this Memo immediately after the meeting because his supervisor, Mr. Tokiwa, wanted to use the notes at a meeting later that day with the president and vice-president of the Company. (Id.) Under the subheading "Education," the Memo stated: "Managers must keep their qualifications up or they can be replaced by a younger person." (emphasis in the original). (Pl. Ex. F.) Mr. Eckman testified that Mr. Asami made this statement. (Eckman dep. at 37-39.) Also in this Memo, under the subheading "Safety & Environment," the Memo states: "Due to personnel cutbacks the age of operators makes it harder to do clean-ups." (Pl. Ex. F.) He also testified that on the same day as the meeting, he distributed the Memo to the meetings' attendees. (Eckman dep. at 42-43.) In addition, he stated that although no one at the meeting told him not to put the word "younger" in the minutes, a few days later defendant Johnston told him that he should not have put the word "younger" in the minutes and asked him to take it out. (Id. at 43-48.) In fact, Eckman testified that defendant Johnston instructed him to delete the word "younger" from the Memo, to get the Memo back from anyone who received it already, and to redistribute a copy of the revised minutes changing the word "younger" to "more educated" ("Revised Memo"). (Id. at 47; Pl. Ex. H.) The Revised Memo was distributed one week after the original meeting date. (Pl. Ex. H.) Eckman also testified that Richard Merkell, a Vice President at Rimtec, told him that the Memo could create a lawsuit. (Id. at 51.) *fn3
In 1996, because plaintiff's supervisor was demoted to day shift Production Supervisor, he was forced into the midnight shift Production Supervisor position. (Horvath dep. at 30.) Due to these changes, Woods, who was trained by Horvath and had less experience and seniority, was promoted to the position of Production Manager and became Horvath's supervisor. (Id. at 28.) In addition, Grzybowski, also trained by Horvath and with less experience and seniority, was promoted to the position of Safety Manager. (Id. at 32.) Because he was dealing with family issues that required him to work during the day, on September 17, 1996, plaintiff wrote to Plant Manager, Raymond Johnston, Jr. and proposed a new position for himself, titled "Plant Cleanliness Coordinator/Supervisor." (Def. reply brief, Ex. B.) He wrote: "I would like to propose the attached job description. This position would benefit the Company and me in the position, even though I realize it would be a substantial pay cut for me." (Id.) According to plaintiff's description, as Plant Cleanliess Coordinator/Supervisor, he would work the day shift between the hours of 7-3. (Id.) In and around October 1996, plaintiff also spoke with Woods and requested that he be moved back to the day shift; he proposed to Woods that Raymond Johnston, Jr. take the midnight shift and that he could be moved to the Traffic Manager position. (Id. at 68, 73, 151.)
Johnston rejected plaintiff's proposal but offered him the lower paying position of Pilot Line Operator. (Johnston dep. at 89.) In an October 28, 1996, memorandum defendant Johnston wrote to Vice President Hiro Shimizu:
Due to problems with R. Horvath's parents being sick and requiring his time, it has been difficult for him to work the 11-7 shift, and he has not been able to get the proper amount of rest. Mr. Horvath has asked if there is a possibility of being moved to a 7-3 position. I have discussed with Mr. Merkel the possibility of moving Mr. Horvath to the pilot line position on 7-3 shift at $35,000.00 per year. Mr. Merkel has agreed to this, . . . . Mr. Horvath has agreed to $35,000 per year. He will be retiring in approximately two years. (Def. Reply Ex. C.)
Plaintiff testified that he accepted the lower paying position of Pilot Line Operator because his family problems required that he have a day job. (Horvath dep. at 20.) Also, while plaintiff does not dispute that he told Mr. Johnston in October of 1996, that he might be retiring within two years, he testified that he "never pursued retirement formally," that "the retirement thing, it was a dream" and that "after [he] went on the pilot line, the memos and the correspondence that [he] had with Jeff Nash and Mr. Koeda, it should have been quite obvious that I had no intentions of retiring." (Id. at 72-75.) Plaintiff remained in the Pilot Line position until January of 1998. However, plaintiff testified that when the day shift Traffic Manager position became available in and around October of 1997, Raymond Johnston, Jr., who was much younger and less experienced, received the position. (Id. at vol. 2 at 203.)
According to plaintiff, Woods told him that he was never considered for the Traffic Manager position because defendant Johnston had made the decision. (Id. at 203; Grzybowski dep. at 34.) He also alleges that he complained to Jeffrey Nash, his immediate supervisor, about losing promotions to younger people and about returning to a job in production. (Id. at 33.) He alleges that Nash assured him that he would get back into production and that he would get his old salary back. (Id. at 33, 83.)
In 1998, Horvath accepted the newly created Utility Coordinator position. Plaintiff maintains that although he was involved in meetings and discussions with upper level Rimtec management about this position, including defendants Koeda and Johnston, the actual position turned out to be different from the job description. (Id. at vol. 2 at 168-172.) In addition, the Utility Coordinator position paid approximately $20,000 less than plaintiff was making in 1993-1996 as General Foreman and Production Supervisor. Also in 1998, plaintiff alleges that other positions became available for which he was not considered.
Plaintiff submitted a "formal notice of complaint" to his supervisor and upper level management in August 1998 about not being considered or interviewed for the various positions that had become available. (Pl. Ex. L.) Plaintiff never received a response to his letter. Although Woods and Eckman both testified that plaintiff was qualified to be a Color Matcher, he was never considered for this position. (Woods dep. at 48; Eckman dep. at 58.) Defendant Johnston testified that at the time the General Foreman position was eliminated, he promised plaintiff that if the position was recreated, he would be re-promoted to it. (Johnston dep. at 79.) However, when the position was recreated, (although Johnston admitted that plaintiff could technically handle the position), he was not given the opportunity to interview for the position because of his alleged retirement plans. (Id. at 80-81.) In contrast, defendant Koeda testified that plaintiff was not given the recreated General Foreman position because of his lack of technical ability. (Koeda dep. at 102-03.)
In spite of Johnston's promise, the recreated General Foreman position was given to Grzybowski and later to Johnston, Jr. (Johnston dep. at 88; Woods dep. at 75.) Grzybowski testified that he believed plaintiff was more qualified than he was for the position of Production Manager, which is superior to the General Foreman position. (Grzybowski dep. at 17-18.) In addition, plaintiff cites to the Safety Manager position that became available in June 1998 and was given to Joseph Gormley, (age 25 at the time) who was hired from outside the plant and to Grzybowski's promotion to the position of Production Manager in July 1998. Plaintiff contends that these are examples of positions that he was qualified for but for which he was not considered.
Moreover, Kenneth Russell, a former Rimtec supervisory employee, testified that after thirty-six years with Rimtec and its predecessor, he was demoted from Production Manager to Shift Supervisor. Gary Woods (in his mid-30s) replaced Russell, as Production Manager. (Russell dep. at 45.) Mr. Russell also testified that he witnessed a pattern at Rimtec, wherein the Company was replacing older employees with younger employees. (Id. at 58-60.) In addition, Roger Eckman testified that older employees such as "Kenny Russell, Dick Merrell, [and] Gil Wichard" were "replaced by younger employees." (Eckman dep. at 57.)
Plaintiff filed a Charge of Discrimination with the Equal Employment Opportunity Commission ("EEOC") on August 27, 1998, alleging that he was discriminated against based on his age. (Pl. Ex. K.) He described various positions that were filled by employees aged forty (40) and below. (Id.) Specifically, he alleged that during 1998, the positions of Traffic Manager, General Foreman and Production Manager became available, and although he was qualified for each of these positions, Rimtec gave the jobs to younger, less qualified individuals. *fn4 (Id.) On December 10, 1999, the EEOC sent plaintiff a letter informing him that they were "administratively dismissing this charge and terminating all processing." (Pl. Ex. O.) The EEOC's letter further explained that a "private ADEA lawsuit may be filed any time from 60 days after a charge is filed with EEOC until 90 days after receipt of notification that EEOC has terminated its processing of this charge." (Id.)
Since filing his Charge with the EEOC, plaintiff received his 1999 annual evaluation from Grzybowski which rated his work performance as "satisfactory" in every way, except in the category "Work Ethic and Attitude," Grzybowski rated him as "need[ing] improvement." (Pl. Ex. M.) Although Grzybowski testified that plaintiff's evaluation was "as good or better than most," plaintiff was not given a raise in January 1999 when other employees received their raises. (Johnston dep. at 57-58.) In fact, plaintiff points out that Nick Evert (over age 40), also was not given a raise, while William Evert (under age 40), who received a less favorable evaluation compared to his, was given a raise. (Pl. Ex. N.) After realizing that plaintiff did not receive a raise, Grzybowski went to Johnston "to fight" to get plaintiff a raise. *fn5 (Grzybowski dep. at 31; Johnston dep. at 59.) Both Woods and Grzybowski testified that they felt like they were "hitting a brick wall" when they made efforts to get plaintiff back into production and to the day shift Production Supervisor position. (Id. at 36; Woods dep. at 71.)
On February 16, 1999, plaintiff and his wife Judith Horvath filed the instant action against Rimtec, Teruhisa Koeda, the former President of Rimtec, Raymond Johnston, Sr., the current Plant Manager of Rimtec, and Daniel Preston, the former Production and Maintenance Executive of Rimtec. Plaintiff asserts claims of discrimination under the ADEA and the NJLAD and claims alleging intentional infliction of emotional distress, negligent infliction of emotional distress and malicious interference with existing employment relations or prospective economic advantage. In addition, Mrs. Horvath brings a claim for loss of consortium. On April 4, 2000, defendants Rimtec, Koeda and Johnston, Sr. filed the instant Motion for Partial Summary Judgment.
"[S]ummary 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 judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).
In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there ...