The opinion of the court was delivered by: Thompson, U.S.D.J.
This matter is before the Court on motion by defendants Zurich American Insurance Company ("Zurich"), Dinos Iordanou, and Bob Davis for summary judgment pursuant to Fed. R. Civ. P. 56. The Court heard oral argument on July 17, 2000. For the reasons stated below, the motion will be granted.
Plaintiff filed this age discrimination case in the Superior Court of New Jersey, Law Division, Mercer County, asserting that he was terminated in violation of the New Jersey Law Against Discrimination ("LAD"), N.J. Stat. Ann. § 10:5-1 et seq., and the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and asserting claims for intentional infliction of emotional distress, implied employment contract and breach of covenant of good faith and fair dealing. *fn1 On June 11, 1999, defendants removed the case to this Court.
Prior to filing in state court, plaintiff had filed a Charge of Discrimination with the U.S. Equal Employment Opportunity Commission ("EEOC"). In the Charge, plaintiff stated that he was the only employee in his division at Zurich terminated and that he had been the oldest employee in the division. On January 25, 1999, the EEOC dismissed the charge, stating that it was unable to conclude that the information obtained established violations of the statutes, and issued a Right to Sue letter.
II. Plaintiff's Job Performance
Plaintiff Edward Byrne, a New Jersey resident, was hired by Zurich on July 1, 1991 as a Claims Account Executive for its Liberty Plaza office in New York, New York. He was 43 years old. Zurich provides property, casualty and specialty insurance throughout the United States. Bob Davis was hired by Zurich in 1996 as the Regional Vice President for International Accounts. Dinos Iordanou is the Chief Executive Officer of Zurich.
Plaintiff's responsibilities included being a liaison between the claims department and Zurich's customers and prospective customers. Specifically, plaintiff developed instructions for the use of the claims department which outlined a particular customer's service needs. Thereafter, if the customer had a problem, plaintiff would "troubleshoot" with the customer and help work out a solution. Plaintiff also arranged claim reviews with customers and brokers. Occasionally, plaintiff performed marketing duties.
Like other claims account executives, plaintiff received an annual performance review called a Performance Management Plan ("PMP"). Plaintiff received ratings on "Major Accountabilities," "General Business Accountabilities" and an "Overall Rating." The accountabilities are defined as "what the employee does." For example, major accountabilities included, inter alia, acting as a liaison between insureds/producers and the claim department; representing the Zurich claims department at meetings; and conducting claim reviews. The general business accountabilities included, inter alia, planning and organizing; communication and interpersonal effectiveness; and handling specific situations. The ratings were: exceeds requirements; periodically exceeds requirements; meets requirements; marginally meets requirements; and does not meet requirements.
In his PMP for the period July 1991 through July 1992, plaintiff was evaluated on six major accountabilities and four general business accountabilities. Plaintiff received the following ratings on major accountabilities: one rating of does not meet requirements, three marginally meets requirements and two meets requirements. In the comments section, the evaluator noted that plaintiff did not perform his work in a timely manner in four of the accountabilities. For the four general business accountabilities, plaintiff received three ratings of marginally meets requirements and one meets requirements. Comments focused on plaintiff's lack of timeliness and need to improve communications skills. Plaintiff received an overall rating of marginally meets requirements.
On June 25, 1992, plaintiff received a memorandum regarding his performance review from Walter J. Nicoletti, his supervisor. The memo set forth five corrective actions that plaintiff was required to perform within the following 60 days in order to raise his overall performance.
Plaintiff's next PMP covered the period July 1, 1992 through December 31, 1992. The ratings for the six major accountabilities were generally at the meets requirements level and the comments noted improvement in plaintiff's skills. For the four general business accountabilities, plaintiff received one rating in between does not meet requirements and marginally meets requirements; two marginally meets requirements and one meets requirements. The comments emphasized the need for better time management and for a more pro-active approach in handling his work. Plaintiff received an overall rating in between marginally meets requirements and meets requirements.
In April 1993, Christine Curcio-Smith replaced Nicoletti as plaintiff's supervisor. Plaintiff's next PMP covered the 1993 calendar year. On the major accountabilities, plaintiff received the following ratings: one in between marginally meets requirements and meets requirements; four meets requirements; and one exceeds requirements. The comments focused on plaintiff's need to take a pro-active position regarding his claims and his lack of communication with the account team. For the four general business accountabilities, plaintiff received one in between does not meet requirements and marginally meets requirements; two marginally meets requirements; and one meets requirements. Comments noted time management problems and the need for a more pro-active approach. The evaluator also noted that plaintiff had received negative feedback from customers and account executives in the area of planning and organizing and communication and interpersonal effectiveness. Some risk managers asked that plaintiff be replaced on their accounts. Plaintiff received an overall rating of meets requirements. Final comments noted that plaintiff's overall performance in 1993 had been erratic. In response, plaintiff wrote on the PMP that he was handling more accounts than the two other claim account executives combined.
On March 31, 1994, plaintiff received a memorandum regarding his performance review from Curcio-Smith. In response to plaintiff's comments on his 1993 PMP, Curcio-Smith stated that plaintiff was not handing more accounts than the two other claim account executives combined. The memorandum explained that account assignments and workloads were based on the amount of activity that an account generates. Therefore, while plaintiff may have had a greater account listing, the number of his active accounts was in line with his colleagues. In addition, plaintiff's colleagues had more in-person quarterly claim reviews, which required extensive preparation.
Plaintiff's 1994 PMP followed a different format that rated four "Individual Accountabilities," including, inter alia, support account teams' marketing and production efforts; monitor large/sensitive claims, and conduct claim review; and provided an overall rating. Plaintiff received the following ratings: one does not meet requirements, two in between marginally meets requirements and meets requirements, and one meets requirements. In the comments section, the evaluator noted that four accounts requested that plaintiff be replaced as their claim coordinator and other accounts complained about plaintiff's servicing capabilities. In addition, plaintiff was advised to focus on time management skills. Plaintiff received an overall rating of marginally meets requirements.
In his 1995 PMP, plaintiff received one rating of marginally meets requirements, two ratings of meets requirements and one rating of periodically exceeds requirements. The overall rating was meets requirements. The PMP recognized plaintiff's improvement and noted that time management issues were being addressed. Plaintiff was advised to improve his pro-active skills.
In his 1996 PMP, plaintiff received a rating of meets requirements for all four individual accountabilities and for the overall rating. The review noted improvements in timing issues and taking a pro-active role in certain situations. On the other hand, the review noted that plaintiff needed to improve his communication skills and increase his interpersonal interaction.
III. Job Performance of Plaintiff's Colleagues
Plaintiff's colleagues included Orysia Iwasiw, Mike DiLella and Elaine Demske. Following is their overall ratings considered by Curcio-Smith in determining whose position to eliminate. See Curcio-Smith Depo. at 122-40.
Iwasiw received an overall rating of periodically exceeds requirements on her 1992, 1993, 1994 and 1995 PMPs; and an overall rating of meets requirements on her 1996 PMP.
DiLella received an overall rating of periodically exceeds requirements on his 1993 PMP; an overall rating of meets requirements on his 1994 PMP; and an overall rating of periodically exceeds requirements on his 1995 PMP. DiLella's 1996 PMP was not considered.
Demske received an overall rating of meets requirements on her 1993, 1994 and 1995 PMPs. Demske's ...