The opinion of the court was delivered by: Irenas, District Judge
HONORABLE JOSEPH E. IRENAS
Defendant Daniel Preston moves for summary judgment on plaintiff Richard Horvath's claim alleging age discrimination under the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD"), his claims of negligent and intentional infliction of emotional distress and malicious interference with existing employment relations or prospective economic advantage and on plaintiff Judith Horvath's per quod claim for loss of consortium. *fn1 For the reasons set forth below, defendant's motion for summary judgment is granted.
Fifty-four year old plaintiff Richard Horvath, *fn2 commenced employment with Rimtec Corporation ("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, while plaintiff worked as the plant's General foreman, due to financial difficulties, the Company was forced to restructure. The General Foreman position was eliminated and plaintiff was moved back to his former position of day shift Production Supervisor. Plaintiff's salary and benefits were not affected by the position change. 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. According to Grzybowski, Mr. Horvath trained both him and Mr. Woods over many years. Plaintiff remained in the position of day shift Production Supervisor until May, 1996.
In 1996, because plaintiff's supervisor was demoted to day shift Production Supervisor, plaintiff was forced into the midnight shift Production Supervisor position. Because he was dealing with family issues that required him to work during the day, on September 17, 1996, plaintiff wrote to Plant Manager, Ray Johnston and proposed a new day shift position for himself, entitled "Plant Cleanliness Coordinator/Supervisor." Johnston rejected plaintiff's proposal but offered him the lower paying position of Pilot Line Operator. According to plaintiff, he accepted the lower paying position of Pilot Line Operator because his family problems required that he have a day job. Plaintiff remained in the Pilot Line position until January of 1998.
Defendant Daniel Preston, who is currently fifty-one years old, commenced work at Rimtec on January 6, 1997. He was employed by Rimtec until December of 1998 when he left to take a position with another company in the Midwest. Approximately one month after Preston was hired, Rimtec hired fifty year old Charles Goldman. During 1998, the plant was run by a three-person executive committee consisting of Preston, Goldman and Ray Johnston, Sr. Johnston was the top Executive at the plant, Preston the Executive of Production, Engineering and Maintenance and Goldman the Executive Indirect of Operations. Preston claims that prior to assuming the position of Executive of Production, Engineering and Maintenance on February 26, 1998, he had no supervisory responsibility over Mr. Horvath. Although Preston was never plaintiff's direct supervisor, once in this position, he became the direct supervisor to plaintiff's supervisor.
In December, 1997, plaintiff submitted a proposal to management, including Preston, that described a new position similar to the abolished General Foreman position. (Pl. Ex. I.) This position eventually materialized in early 1998 when Preston, Goldman and Johnston decided to recreate the General Foreman position. The position was given to Grzybowski. *fn3 According to Johnston, although plaintiff was qualified for the position and it was promised to him, he was not given the opportunity to interview for it because of his alleged retirement plans. In contrast, Koeda testified that plaintiff was not given the position because of his lack of technical ability. (Koeda dep. at 102-03.) Moreover, although Horvath maintains that Preston knew that plaintiff wanted to be the General Foreman, Preston testified that Horvath never expressed any interest in the recreated position. (Preston dep. at 89, 115-16.)
Around the same time, Horvath was offered and accepted the newly created Utility Coordinator position. Plaintiff contends that although he was involved in meetings and discussions with upper level Rimtec management about this position, including defendant Preston, the actual position turned out to be different from the job description. In addition, although Horvath's salary was increased, 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. For example, Woods and Eckman both testified that plaintiff was qualified to be a Color Matcher, but he was never considered for this position. (Woods dep. at 48; Eckman dep. at 58.)
Plaintiff submitted a "formal notice of complaint" to his direct supervisor Richard Grzybowski on August 27, 1998, about not being considered or interviewed for the various positions that had become available. (Pl. Ex. L.) This letter was copied to Gary Woods and Dan Preston. Plaintiff never received a response to his letter. According to plaintiff, prior to this formal complaint, he complained to Preston about being treated unfairly and being discriminated on the basis of age. Preston testified that in 1998, Horvath told him that he did not feel the Company was treating him well and that he would be seeking legal advice, but that Horvath "was not making a claim of age discrimination." *fn4 (Preston brief at 7; Preston dep. at 43, 45-47, 64-65.) Preston testified that he told Johnston about his conversation with Horvath, but did not know what Johnston did with the information.
Plaintiff also 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 for which he was qualified but not considered.
In response to plaintiff's allegations, Preston maintains that beginning in March of 1998, he assumed a major responsibility in preparing for Union negotiations and delegated many of his plant responsibilities to Grzybowski, Horvath's immediate supervisor. He testified that in June, 1998, when the Company felt it was necessary to reorganize certain personnel, he was unavailable to participate in the personnel decisions. Preston believes that these decisions were made by Koeda and Johnston; a memo, signed only by Johnston, announced the changes. 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. *fn5 (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. *fn6 (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.)
After 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. *fn7 (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.) Preston contends that he has no recollection of participating in any decision concerning Horvath's raise for 1999. (Preston dep. at 188, 191, 194, 196-97.) However, Preston testified that he participated in the raise process of staff employees, including Mr. Horvath, for the January, 1999 calendar year, but could not explain why plaintiff did not receive a raise. (Id. at 189-90.) In addition, Johnston testified that it was Preston who was responsible for ensuring that plaintiff received a raise in January, 1999. (Johnston 30(b)(6) dep. at 15, 35.) Also, Goldman testified that Preston ordinally decided to give plaintiff a low raise, but after Goldman suggested it be even lower "to send a message," Preston put no raise forward. (Goldman 30(b)(6) dep. at 48, 51.)
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. Specifically, plaintiff has asserted claims of discrimination under 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 against defendant Preston. *fn8 In ...