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WATKINS v. NABISCO BISCUIT CO.
September 26, 2002
GENE A. WATKINS, PLAINTIFF
NABISCO BISCUIT COMPANY, AND PHILIP MANCINI, DEFENDANTS.
The opinion of the court was delivered by: Greenaway, District Judge
This matter comes before the Court on the motion of Defendants
Nabisco, Inc. ("Nabisco")*fn1 and Philip Mancini ("Mancini")
(collectively, "Defendants") for summary judgment as to each of Plaintiff
Gene Watkins' ("Watkins" or "Plaintiff") five claims. Plaintiff, a former
employee of Nabisco, alleges the following claims against Defendants:
racial discrimination (pursuant to Title VII, the New Jersey Law Against
Discrimination ("LAD"), and 42 U.S.C. § 1981); and retaliation
(pursuant to Title VII and the LAD). For the reasons set forth below, this
Court finds that Plaintiff has failed to establish prima
facie cases of
racial harassment, discriminatory discharge, or retaliation.
Additionally, this Court finds that Watkins has not produced evidence
tending to establish that Defendants' proffered legitimate,
non-discriminatory reasons for terminating Plaintiff were pretexts for
racial discrimination. Accordingly, Defendants' motion for summary
judgment, pursuant to FED. R. Civ. P. 56(c), is granted.
Watkins, an African-American male, was employed by Nabisco as a Senior
Process Control Engineer in its East Hanover, New Jersey facility from
July, 1995 until his termination on January 22, 1998. (Defs.'
Rule 56.1 Statement ¶ 1.) Watkins' starting compensation included a base
salary of $71,500 and a one-time hiring bonus of $8,000. (David Cohen
Aff., Ex. G.) As Senior Process Control Engineer, Watkins was responsible
for the design and implementation of manufacturing and process control
systems at the Nabisco bakeries. (Pl.'s Rule 56.1 Statement of Facts
¶ 4.) Watkins reported directly to Mancini, a Manager in the Process
Controls Division of Nabisco. (Pl.'s Rule 56.1 Statement ¶ 11;
Defs.' Rule 56.1 Statement ¶ 3.) Shortly after Watkins began working
at Nabisco, Mancini took sick leave and did not return to work full time
until March, 1996. (Pl.'s Rule 56.1 Statement ¶ 13; Defs.'
Rule 56.1 Statement ¶ 14.) Donald Boyle ("Boyle"), a Senior Director in the
Process Controls Division — and Mancini's supervisor —
oversaw Watkins' work during Mancini's absence. (Pl.'s
Rule 56.1 Statement of Facts ¶¶ 12-13; Defs.' Rule 56.1 Statement ¶ 16.)
Boyle could not recall any problems with the quality of Watkins' work
product during Mancini's absence. (Boyle Dep. at 46-48.)
Plaintiff received his first written annual performance review by
Mancini in July, 1996. (Defs.' Rule 56.1 Statement ¶ 17; Pl.'s
Rule 56.1 Statement ¶ 18.) Nabisco's evaluation process contains three
steps: (1) employees first complete a written self-evaluation, which is
submitted to the employee's immediate supervisor; (2) the supervisor then
completes a written evaluation, incorporating any insight provided by the
self-evaluation; and (3) the employee and supervisor meet to discuss both
evaluations and any inconsistencies therein. (Defs.' Rule 56.1 Statement
¶ 18.) Watkins evaluated himself at the "commendable" level, the
equivalent of an above average rating.*fn3 (Cohen Aff., Ex. K.) On the
other hand, Mancini rated Watkins as "effective" overall, the equivalent
of an average rating. (Cohen Aff., Ex. I.) Mancini gave Watkins a
"commendable" rating in two of the six categories. (Id.) As part of his
evaluation, Mancini also noted several "objectives and goals" for
including "communication skills, self-improvement skills, and
leadership skills." (Id.) At the meeting following the written
evaluation,*fn4 Watkins informed Mancini that he was not receiving the
same level of assistance as other project team members. (Watkins Dep. at
169-70.) However, Watkins did not mention these problems in his written
self-evaluation. (Id. at 170.)
On October 19, 1996, Mancini wrote a memorandum to Boyle summarizing
Watkins' concerns about several incidents that Watkins felt had impacted
his work performance.*fn5 (Cohen Aff., Ex. M). Mancini informed Boyle
that he had already taken several steps in response to Watkins'
complaints: (1) informing the three individuals that had engaged in the
allegedly discriminatory behavior that such behavior was
inappropriate;*fn6 and (2) following up with Watkins, who later revealed
that "attitudes toward him had improved." (Cohen Aff., Ex. M.)
On November 9, 1996, Boyle forwarded Mancini's memorandum to Margaret
Campos ("Campos"), a manager in Nabisco's Human Resources Department,
with copies sent to David Mathews ("Mathews"), also a manager in Human
Resources, and Howard Leibowitz ("Leibowitz"), a Vice President in the
Engineering Department. (Id., Ex. S.) Five days later, Boyle wrote to
Leibowitz stating that "[w]e continue to be dissatisfied with the
performance of Gene Watkins." (Id., Ex. T.) Boyle informed Leibowitz that
Mancini was taking the following actions to address Watkins' perceived
 Give [Watkins] a new assignment that requires that
he perform at the Senior Engineer level, give him all
the help he needs in getting the project organized,
and then rate his performance in executing his
assignment. [and]  Prepare a half year performance
appraisal in January to formalize a record of his
performance, good or bad . . . (Id.)
On December 6, 1996, Watkins wrote a memorandum to Mancini
memorializing the difficulties he had encountered with his co-workers.
(Id., Ex. N.) Watkins' allegations — described generally in
Mancini's earlier memorandum — can be summarized as follows: (1)
the theft of Watkins' Ebony Fashion Fair calendar;*fn7 (2) disparaging
comments by Watkins' co-workers;*fn8 (3)
the disruption of Watkins' work
area;*fn9 and (4) the lack of cooperation from Watkins' team
members.*fn10 After receiving Watkins' memorandum, Mancini again spoke
with the alleged offenders. (Defs.' Rule 56.1 Statement ¶ 67; Pl.'s
Rule 56.1 Statement ¶ 80.) In early 1997, Mooney and Subsinsky, two
of Watkins' co-workers, submitted written responses specifically denying
Watkins' allegations.*fn11 (Cohen Aff., Exs. O, R.)
During 1995 and 1996, Watkins was assigned to work on the Line 9
Project in Atlanta, Georgia and Mancini's oversight of Watkins' job
performance increased. (Defs.' Rule 56.1 Statement ¶ 69.) Mancini's
and Boyle's increasing concern as to Watkins' work performance was
reflected in Watkins' March 1997 performance evaluation. (Cohen Aff.,
Ex. U.) Watkins' overall rating dropped from "effective," to
"developmental," the equivalent of a below average rating. (Id.)
Specifically, Mancini remarked:
Since July, I have made a point of spending a great
deal of time with [Watkins] to be sure that he
understood my expectations, that he knew how to do the
things I wanted him to do, and to insure that I was
getting a clear view of his skills.
Gene has not demonstrated that he possesses sufficient
knowledge of the responsibilities of a senior process
control engineer to achieve an Effective rating. Over
the past six months, reports and documents have not
been delivered in a timely fashion. Presentations
lacked sufficient information and contained
inaccuracies. He is not proficient with computer
programs such as WORD, EXCEL or PowerPoint.
A senior process control engineer must be self
directed and a problem solver. [Watkins] has not
demonstrated those skills. Overall, I feel that he
must improve substantially before he is performing at
an acceptable level. (Cohen Aff., Ex. U.)
In April, 1997, Mancini informed Watkins as to those areas in which
Mancini felt Watkins needed improvement. (Defs.' Rule 56.1 Statement
¶ 81.) Two months later, in June 1997, Boyle updated Leibowitz on
Watkins' performance. (Cohen Aff., Ex. V.) In his memorandum, Boyle
mentioned a May 28, 1997 meeting with Mancini and Watkins regarding
performance review. (Id.) Boyle also mentioned Watkins'
discrimination complaints: "[Watkins] acknowledged that he knew . . .
Mancini had reported the original incidents and that all of the engineers
involved had been counseled by their supervisors . . . [h]owever,
[Watkins] stated that he still didn't think . . . [Mancini] and I had
taken the situation seriously." (Id.) Moreover, Boyle reported that
Watkins' reassignment to work with a different group of peers had not
improved Watkins' performance level. Although Boyle considered Watkins to
be in the "developmental" category, he nonetheless "asked [Mancini] to
continue to work with [Watkins] on completion of his required tasks and
to reinforce the message to the Atlanta project team that [Watkins]
should be given the opportunity to lead that effort unimpeded by others."
On or about September 8, 1997, Nabisco placed Watkins on a 90-day
corrective action plan. (Cohen Aff., Ex. W.) Watkins was given eight key
areas in which to make improvements. (Id.) On September 29, Watkins met
with Mancini, Boyle, and Leibowitz to give them a further opportunity to
explain their expectations of Watkins during the 90-day plan. (Cohen
Aff., Ex. J.) That same day, Watkins wrote a memorandum to Mancini
detailing his disagreement with Mancini's assessment of Watkins'
performance in both his March 1997 performance review and the 90-day
corrective action plan. (Id., Ex. X.) Watkins voiced his concern that
communications with, and support from, management had broken down after
Watkins' December 1996 memorandum. (Id.)
On November 7, Watkins met with Mancini, Boyle, and Mathews to discuss
the eight point corrective action plan.*fn12 (Id., Ex. Z.) Boyle
documented this meeting in his November 10, 1997 memorandum to Watkins.
(Id.) During the meeting, Watkins was provided with sample project lists
and schedules and was required to review his progress with Mancini on a
bi-weekly basis. (Id.) Nonetheless, Mancini perceived that Watkins'
performance continued to deteriorate. In early 1998, Mancini outlined
Watkins' continued failure to meet the requirements of the corrective
action plan and recommended Watkins' termination.*fn13 (Id., Ex. BB.) As
a result, Nabisco terminated Watkins, effective January 31, 1998. (Id.,
Ex. CC; Pl.'s Rule 56.1 Statement ¶ 112.) Initially, Mancini assumed
Watkins' job responsibilities.
(Defs.' Rule 56.1 Statement ¶ 100.)
In 1999, Nabisco transferred Denard Graver, an African-American, from its
Richmond, Virginia bakery into the position of Supervisory Process
Control Engineer at its East Hanover, New Jersey facility. (Id.) Graver
assumed Watkins' job responsibilities. (Id.)
Summary judgment is appropriate under FED. R. Civ. P. 56(c) when the
moving party demonstrates that there is no genuine issue of material fact
and the evidence establishes the moving party's entitlement to judgment
as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir.
1996). In making this determination, the Court must draw all reasonable
inferences — including on issues of credibility — in favor of
the non-movant. Hullett v. Towers, Perrin, Forster & Crosby, Inc.,
38 F.3d 107, 111 (3d Cir. 1994); Nat'l State Bank v. Fed. Reserve Bank of
N.Y., 979 F.2d 1579, 1581 (3d Cir. 1992); Watts v. Univ. of Del.,
622 F.2d 47, 50 (3d Cir. 1980).
Once the moving party has satisfied its initial burden, the party
opposing the motion must establish that a genuine issue as to a material
fact exists. Jersey Cent. Power & Light Co. v. Lacey Township,
772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for
summary judgment cannot rest on mere allegations and instead must present
actual evidence that creates a genuine issue as to a material fact for
trial. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); Siegel
Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir.
1995). "[U]nsupported allegations in [a] memorandum and pleadings are
insufficient to repel summary judgment." Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990); see also FED. R. CIV.
P. 56(e) (requiring nonmoving party to "set forth specific facts showing
that there is a genuine issue for trial").
If the nonmoving party has failed "to make a showing sufficient to
establish the existence of an element essential to that party's case, and
on which that party will bear the burden of proof at trial, . . . there
can be `no genuine issue of material fact,' since a complete failure of
proof concerning an essential element of the nonmoving party's case
necessarily renders all other facts immaterial." Katz v. Aetna Cas.
& Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477
U.S. at 322-23). In the employment discrimination context, "a trial court
must be cautious about granting summary judgment to an employer when . . .
its intent is at issue." Goosby v. Johnson & Johnson Medical,
Inc., 228 F.3d 313, 321 (3d Cir. 2000) (citing Gallo v. Prudential
Residential Services, Ltd. Partnership, 22 F.3d 1219, 1224 (2d Cir.
B. Allocation of burden in employment discrimination context
In proving that he was subject to unlawful discrimination, Watkins may
present either direct or indirect evidence. Pivirotto v. Innovative
Systems, Inc., 191 F.3d 344, 352 n. 4 (3d Cir. 1999).
Often, where a plaintiff possesses some direct evidence of
discrimination, he seeks to prove the defendant's liability under a
"mixed motives" theory. A claim under the "mixed motives" theory requires
"direct evidence that decisionmakers placed substantial negative reliance
on an illegitimate criterion in reaching their decision." Starceski v.
Westinghouse Elec. Corp., 54 F.3d 1089, 1096 (3d Cir. 1995)
(quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989)
(O'Conner, J., concurring)). Plaintiff must therefore show "conduct or
statements by persons involved in the decisionmaking process that may be
viewed as directly reflecting the alleged discriminatory attitude." Id.
(citation omitted). Conversely, "stray remarks in the workplace, while
perhaps probative of a discriminatory ammus, cannot justify requiring the
employer to prove that its employment decisions were based on legitimate
criteria. Nor can statements by nondecisionmakers, or statements by
decisionmakers unrelated to the decisional process itself, suffice to
satisfy the plaintiffs burden in this regard . . ." Id. (quoting Price
Waterhouse, 490 U.S. at 277).
Where a plaintiff has produced direct evidence of discrimination,
however, "it is not necessary to rely on any presumption from the prima
facie case as is necessary in a pretext action." Id., (quoting Armbruster
v. Unisys Corp., 32 F.3d 768, 778 (3d Cir. 1994)).
[If] the evidence as a whole permits a conclusion that
both permissible and impermissible considerations
played a role in the employer's decision, the
plaintiff need only show that the unlawful motive was
a substantial motivating factor in that decision. If
the finder of fact concludes that the plaintiff has
carried this burden, the burden of persuasion shifts
to the defendant to prove that the unlawful motive was
not a but-for cause, i.e., that the same action would
have been taken, because of legitimate
considerations, in the absence of a lawful motive.
Wilson v. Susquehanna Township Police Dept., 55 F.3d 126,
129 (3d Cir. 1995) (citing Miller v. Cigna Corp.,
47 F.3d 586, 594 (3d Cir. 1995) (en banc)).
Thus, where a plaintiff in a mixed motives case has demonstrated that his
race played a part in an employment decision, "the defendant may avoid a
finding of liability only by proving by a preponderance of the evidence
that it would have made the same decision even if it had not taken ...