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September 26, 2002


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 Watkins, 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 deficiencies:

[1] 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] [2] 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.)

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.)


A. FED. R. Civ. P. 56(c)

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. 1994)).

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).

1. Mixed motives theory

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 ...

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