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Satz v. Taipina

IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY


April 17, 2003

WILLIAM SATZ, PLAINTIFF,
v.
DENNIS TAIPINA AND NOVARTIS PHARMACEUTICALS CORP., DEFENDANTS.

The opinion of the court was delivered by: Honorable Jerome B. Simandle

OPINION

I. INTRODUCTION

Defendant Novartis Pharmaceuticals Corporation ("Novartis") made two decisions at issue in this case: first, it decided to transfer plaintiff William Satz from the "Philly South" sales district; then it decided to terminate plaintiff's employment with Novartis. Plaintiff, a Caucasian male, filed a Complaint with this Court, alleging that these two decisions were discriminatory. *fn1

The decisions were made in light of plaintiff's relationship with another Novartis salesperson, his ex-wife. In July 2000, when plaintiff and his ex-wife were both assigned to the Philly South sales district, they had an out-of-work domestic dispute and were both arrested on domestic violence charges. Based on the dispute, plaintiff's ex-wife obtained a restraining order against plaintiff and told her supervisor at Novartis, defendant Dennis Taipina, about it. Because of the restraining order against plaintiff, Taipina, along with other Novartis management employees, decided to separate plaintiff and his ex-wife by transferring plaintiff to another sales district. By the time Taipina told plaintiff of the transfer, plaintiff had also obtained a restraining order. Plaintiff told Taipina about his order, but Taipina did not change his decision to transfer plaintiff and allow plaintiff's ex-wife to remain in the Philly South district.

Plaintiff argues that the transfer decision was discriminatory because it was based on the "gender-based presumption -- that he was the wrongdoer in an out-of-work confrontation . . . because he was a male." (Pl.'s Br. at 2.) He argues that when he contested the discriminatory transfer decision, he was terminated from his employment at Novartis in retaliation. Defendants argue that the decision to transfer plaintiff was not based on his gender, but was based on their understanding that they were bound by a court order to ensure plaintiff had no contact with his ex-wife. The restraining order against plaintiff became a permanent order against him. They also argue that plaintiff's eventual termination was based solely on his failure to comply with his manager's performance expectations.

This motion for summary judgment requires the Court to first consider whether plaintiff, who was employed exclusively in Pennsylvania and Delaware by defendants who had offices in New Jersey, may pursue claims against defendants under the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. §10:5-1. Then the Court must consider whether there remains any material question of fact regarding plaintiff's claims of discrimination, invasion of privacy, and intentional infliction of emotional distress.

As explained herein, this Court finds that plaintiff may not assert the NJLAD against defendants because plaintiff was not employed in New Jersey as required by New Jersey law. This Court also finds that plaintiff has failed to raise any issue of material fact regarding his discrimination claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, the Pennsylvania Human Relations Act (PHRA), 43 P.S. §951, and the Pennsylvania Equal Rights Amendment (PERA), or regarding his privacy and intentional infliction of emotional distress claims. Therefore, this Court will grant defendants' motion for summary judgment and will dismiss plaintiff's complaint.

II. BACKGROUND

A. The parties

Novartis, a corporation headquartered in East Hanover, New Jersey, develops, manufactures, and sells pharmaceutical products. (Berlin Cert., Ex. G, Taipina Aff. ¶1.) Novartis was formed in 1997 after the merger of its predecessor, the Sandoz Corporation, and CIBA-Geigy. (Id.) Plaintiff was employed at Sandoz in 1988 as a pharmaceutical sales representative and worked "on the road every day visiting physicians, pharmacies, hospitals, nursing homes or other healthcare providers." (Simon Cert., Ex. A, W. Satz Dep. 69:3-15; Pl.'s Facts ¶¶1, 2.)

In 1993, plaintiff married another sales representative, Rosemarie Satz. (Berlin Cert., Ex. E, R. Satz Dep. 78:18-21; Id., Ex. K at 2.) The Satzes were eventually transferred into the same "Philly South" sales district, which included two sales territories in Southern New Jersey and three territories in Philadelphia. *fn2 (Id., Ex. B, Taipina Dep. 4:15-24; Id., Ex. E, R. Satz Dep. 78:4-24.) The Satzes worked in different sales territories in the sales district; plaintiff worked in Northeast Philadelphia and Mrs. Satz worked in South Jersey. (Id. at 25:3-11; Berlin Cert., Ex. E, R. Satz Dep. 7:13-19). They both worked for manager Dennis Taipina, who worked under Howard Goldberg, the regional director of sales for Delaware, New Jersey, and Pennsylvania. (Id., Ex. B, Taipina Dep. 4:13-16; Id., Ex. C, Goldberg Dep. 5:1-14; Id., Ex. E, R. Satz Dep. 6:13-17; Id., Ex. G, Taipina Aff. ¶1.)

At work, plaintiff and Mrs. Satz did not interact daily because they visited different doctors' offices. (Id., Ex. B, Taipina Dep. 25:9-11; Id., Ex. E, R. Satz Dep. 14:22-24.) About twenty-five to thirty days per year, though, they attended the same district meetings, district dinner programs, and company events. (Id., Ex. B, Taipina Dep. 13:4-19.)

Plaintiff was considered a successful salesperson. His counterpart in Northeast Philadelphia, Rick Miller, explained:

Bill just was, he was different. He just had those rapports that were unbreakable, and it didn't matter who his competitors were. . . . He brought something different to the table.

I think the biggest thing that I saw when we rode together or we worked together in physicians' offices was . . . he brought a value to the physician and was able to teach them and ensure something with them that was different than the average guy. He was passionate. . . . Most reps a lot of times don't get in to see the physician, they wait or just drop samples. Bill never dropped samples. He would get to see the physician and they were excited to see him. (Simon Cert., Ex. G, Miller Dep. 23:4-24:10.) Plaintiff's annual reviews for 2000 and 2001 show that he generally "met expectations." *fn3 (Id., Ex. H.)

B. The divorce

Mrs. Satz filed for divorce in November 1999. (Berlin Cert., Ex. E, R. Satz Dep. 6:1-8, 7:20-8:1; Id., Ex. K.) The divorce was finalized in June 2000, with Mrs. Satz receiving rights to the marital home in Cinnaminson, New Jersey. (Id.) Plaintiff moved to a home he purchased in Huntington Valley, Pennsylvania. (Simon Cert., Ex. J, W. Satz Dep. 190:9-10.)

The Satzes' manager, Dennis Taipina, was aware that the Satzes were having marital problems. (Berlin Cert., Ex. E, R. Satz Dep. 16:6-8; Id., Ex. G, Taipina Aff. ¶¶4, 6.) Prior to the divorce, he says that "both acknowledged that the divorce was stressful [but] assured [him] that they would remain professional and would not allow their working relationship or Novartis business to be affected by the pending divorce." (Id. ¶6.) Taipina says he then watched their relationship "degrade" as they soon seemed "uncomfortable in each other's presence," and he saw the effects of the divorce on their sales performance which for "both Rosemarie and William Satz began to slip below Company expectations." (Id. ¶7.)

It is not clear whether Mrs. Satz actually told Taipina that it was difficult working in the same district as plaintiff. Taipina testified, and noted contemporaneously, that Mrs. Satz approached him at a May 10, 2000 district meeting and "told me that she was having troubles at home and that she was no longer comfortable working with Bill Satz within the district." (Berlin Cert., Ex. B, Taipina Dep. 12:2-21; Id., Ex. G, Taipina Aff. ¶8; Simon Cert., Ex. L at 1.) Mrs. Satz has no "recollection of ever complaining to any manager at Novartis that [she] could not work in the same district with [her] husband," but does recall a conversation with Taipina at the May 10th meeting where she told him that she "was still going through a difficult time at home" and that she was "stressed out." (Berlin Cert., Ex. E, R. Satz Dep. 8:12-16, 18:2-19:18.)

Taipina says that Mrs. Satz did not ask him to transfer plaintiff out of the territory, but said she was unwilling to transfer and asked him to "come up with a solution." (Id., Ex. B, Taipina Dep. 14:7-17, 18:22-19:8). Taipina called plaintiff and offered to transfer him to another sales district, thinking "why have two people that are married, let alone divorced, working in the same district with all the open territories [that are] available." (Id., Ex. D, W. Satz Dep. 103:7-21.) Plaintiff did not want to transfer and no transfer was made. (Id., Ex. G, Taipina Aff. ¶¶9-10; Simon Cert., Ex. A, W. Satz Dep. 91:5-92:5.) Taipina did report the problem to his manager, Howard Goldberg, and to human resources because he says he knew he needed advice about the situation. (Berlin Cert., Ex. B, Taipina Dep. 19:14-20; Id., Ex. H, DiPaolo Dep. 49:15-51:3.)

C. The "domestic violence" dispute on July 11, 2000

On July 11, 2000, plaintiff and Mrs. Satz had a fight at the former marital home in Cinnaminson, New Jersey. (Berlin Cert., Ex. D, W. Satz Dep. 199:17-202-25; Id., Ex. E, R. Satz Dep. 12:2-4.) The underlying facts of the day are in dispute, but it is clear that plaintiff and Mrs. Satz called the police who arrived and arrested both plaintiff and Mrs. Satz on domestic violence charges. *fn4 (Id., Ex. D, W. Satz Dep. 203:8-20.) At the police station, an officer asked if either would like a restraining order, but neither obtained one. (Id., Ex. F, W. Satz Dep. 49:21-25.) Plaintiff says that the only reason he did not get one was because he did not have time to go to Family Court that day since he was leaving the following day for vacation. (Id. at 49:25-50:11.)

D. The temporary restraining order

On July 12, 2000, plaintiff left on his planned vacation. (Id., Ex. E, R. Satz Dep. 12:5-14.) Also on July 12, 2000, Mrs. Satz, after speaking with her divorce attorney, obtained a temporary restraining order against plaintiff. (Id. at 12:5-13:22.) Mrs. Satz says that, although she did not understand the exact nature of the restraining order, she felt that she needed to tell her manager Taipina about it since it might affect her work performance. (Id. at 13:12-16, 22:11-15, 32:4-16; Berlin Cert., Ex. B, Taipina Dep. 39:12-15.) The stress of the divorce had already caused her to lose sleep and weight and take a lot of sick days. (Id., Ex. E, R. Satz Dep. 16:3-5, 25:12-15.)

On July 15, 2000, while plaintiff was still on vacation, Mrs. Satz attended a Novartis function with the other Philly South sales representatives. (Simon Cert., Ex. F, Taipina Dep. 71:5-72:23.) Taipina remembers that Mrs. Satz tried to pull him aside during the dinner, looking "disheveled and very stressed out" and said that she needed to tell him "what was going on at home," but Taipina said it was not a good time to talk with all the sales representatives present and asked her to contact him later. (Id. at 73:12-76:18.) On Monday, July 17, 2000, she called him and told him "that I got a restraining order on Bill" and explained "exactly what happened, that he got physical with me, and that my divorce lawyer recommended I get a restraining order." (Berlin Cert., Ex. E, R. Satz Dep. 13:18-22.)

E. The decision to transfer plaintiff

Taipina had never had to "deal with" a restraining order before and thought it was a "pretty significant" issue to take care of because it involved domestic violence. (Berlin Cert., Ex. B, Taipina Dep. 39:10-20). He called his manager, Howard Goldberg and told him that Mrs. Satz said "there was a restraining order from her against Bill and that they couldn't work together." (Id. at 40:5-11.) Taipina did not have a copy of the restraining order and did not get a copy of it until about a year later. (Id. at 40:12-23; Berlin Cert., Ex. J; Simon Cert., Ex. D, R. Satz Dep., 33:3-9.)

Taipina did not investigate the underlying allegations in the restraining order because he thought that it was "none of [his] business." (Berlin Cert., Ex. B, Taipina Dep. 42:11-24.) Still, he and Goldberg felt a "sense of urgency" that plaintiff and Mrs. Satz be separated immediately because of the restraining order. (Id. at 45:5-24, 67:19-21, 132:19-20.) They thought they needed to ensure "the safety and well-being of the individuals involved as well as those that might be affected" in the workplace, (Berlin Cert., Ex. G, Taipina Aff. ¶12), and needed to transfer plaintiff to a position where he could perform his job requirements, which included attendance at "district meetings, regional/area meetings, launch meetings, dinner programs or other district functions," without seeing Mrs. Satz, (id. ¶13).

Taipina and Goldberg called Lisa DiPaolo in human resources who contacted the Novartis Legal Department. (Berlin Cert., Ex. B, Taipina Dep. 68:15-19; Id., Ex. C, Goldberg Dep. 122:2-12, 124:1-8; Id., Ex. H, DiPaolo Dep. 56:8-24.) All agreed that plaintiff and Mrs. Satz should not work in the same district and that plaintiff should be the one transferred to another district because the restraining order was against him. (Id., Ex. B, Taipina Dep. 50:3-9, 69:10-11; Id., Ex. C, Goldberg Dep. 126:9-10, 135:3-6; Id., Ex. H, DiPaolo Dep. 60:16-19, 65:13-18.) They did not actually see the restraining order or know whether it was temporary or permanent when they made their decision. (Id., Ex. B, Taipina Dep. 50:3-9; Id., Ex. C, Goldberg Dep. 146:7-18; Id., Ex. H, DiPaolo Dep. 74:13-18.) Taipina says that all he "cared [was] that [it] existed and . . . that it would affect today . . . and the days after that . . . in the workplace" because it affected two salespeople in his district. (Id., Ex. B, Taipina Dep. 142:15-17, 143:7, 184:16-20.)

"It was important to [Taipina] that the transfer t[ake] place the day [he] found out about the restraining order," especially because a district meeting was scheduled for about two weeks later on August 1st. (Id. at 67:12-21.) Taipina says that human resources looked into the territories available for the transfer and told him the only available territory was in Carlisle, Pennsylvania. (Id. at 63:4-10, 64:15-16.) Goldberg says he did not know that the Carlisle territory was about three and one-half hours from plaintiff's house, but recalls that he was told it was the "closest territory to his home that was open." (Berlin Cert., Ex. C, Goldberg Dep. 178:5-21.) Ms. DiPaolo says that she tried to place plaintiff in a territory that was close to his home, but was restrained by the territories that were available. (Berlin Cert., Ex. H, DiPaolo Dep. 71:17-20.) A territory closer than Carlisle "did not exist." (Id., Ex. B, Taipina Dep. 67:10-11; Id., Ex. C, Goldberg Dep. 172:2-5.)

Plaintiff returned from vacation on July 19th and found Mrs. Satz's restraining order in his mail. (Berlin Cert., Ex. F, W. Satz Dep. 49:9-12.) He called his attorney who told him to get a restraining order against Mrs. Satz, which he did. (Id. at 49:12-14.) While at work on Thursday, July 20, 2000, plaintiff received a call from Taipina who told him he was being transferred to Carlisle, Pennsylvania. (Id., Ex. B, Taipina Dep. 65:4-23; Simon Cert., Ex. A, W. Satz Dep. 93:1-24.)

Plaintiff was "shocked" that Taipina knew about the restraining order. (Berlin Cert., Ex. B, Taipina Dep. 141:9-11.) He told Taipina that he also had a restraining order against Mrs. Satz. (Id.) Upon learning this, Taipina did not change his mind. (Id. at 144:16-17.) He says that he could have, but he thought that the second order gave him "all the more reason" to transfer one of the Satzes and did not see how transferring Mrs. Satz was a "better answer" to the problem. (Id. at 150:12-16, 153:23-24). He did not investigate the details of the underlying dispute, figuring that he could not really believe either rendition of the story and should base his decision on what he knew with certainty -- that a restraining order existed which required separation of the Satzes. (Id. at 182:9-18, 183:14-15.)

Taipina asked plaintiff to consider accepting the Carlisle territory and give him an answer by Monday, July 24th. (Id. at 198:12-24.) He admits that because the territory was the only one available, if plaintiff did not accept it, "technically, he would resign." (Id. at 65:15-23.) Plaintiff says that Taipina actually told him that he had "48 hours to transfer to Carlisle or resign because you're a bully and a wife beater." (Berlin Cert., Ex. F, W. Satz Dep. 95:7-8; Simon Cert., Ex. A, W. Satz Dep. 45:19-22, 93:19-94:15.) Taipina, however, says that his conversation with plaintiff was "professional in all respects" and that he never told plaintiff he was a "wife beater" or a "bully." (Berlin Cert., Ex. G, Taipina Aff. ¶16.)

Plaintiff was frustrated; he thought that when "two people get into a fight outside of work, the [company] should talk to both people before making a decision, rather than relying on the truth of one person's statement." (Berlin Cert., Ex. F, W. Satz Dep. 46:5-9.) He thinks that Novartis "should have conducted an investigation at that point rather than tell me the decision was final [and] kill somebody's career and reputation over a bitter ex-wife who's telling lies." (Id. at 46:21-47:11.) He felt that the company relied on the societal stereotype that "the male is generally the aggressor," and simply assumed he was at fault and should be punished by a transfer. (Id. at 120:6-12.) He admits this is "conjecture" because he does not know "what happened behind the scenes," but says he knows that Novartis "made a final decision without hearing what I had to say. So I can only assume in my own mind that it was discrimination." (Id. at 120:24-121:5.)

Taipina insists that:

[plaintiff's] gender was not a factor in the Company's decision to transfer him out of the Philadelphia South district. Mr. Satz was transferred based upon the need to maintain compliance with the restraining order, the needs of the business and the need to insure the safety and well-being of all those involved who might be affected. (Berlin Cert., Ex. G, Taipina Aff. ¶19.)

Ms. DiPaolo also says the transfer decision was "a business decision which needed to be made. . . . Rosemary Satz had a restraining order against Bill Satz . . . [the decision] had nothing to do with his gender or anything else." (Id., Ex. H, DiPaolo Dep. 200:19-201:5.)

F. Plaintiff's medical leave

Plaintiff says he was so "stressed out" by the restraining order and the transfer that he visited his family physician. (Id., Ex. F, W. Satz Dep. 96:6-18.) He feared:

repercussions that were about to occur such as my reputation was in the trash, everybody was going to know I was transferred to Carlisle, Pennsylvania for something . . . they thought I did because of the company's actions, the detriment to the fact I just purchased a house outside my territory in Northeast Philadelphia, and I had my father in a nursing home with less than a year to live . . . (Id.)

Plaintiff did not know if he could handle the demands of co-parenting and a long commute and a new client base. (Id. at 96:19-25.) His doctor prescribed an anti-anxiety medication, Ativan, and filled out forms so that he could take disability leave. (Id. at 96:6-97:25.)

Plaintiff called Lisa DiPaolo to tell her that he needed to take disability leave. (Berlin Cert., Ex. H, DiPaolo Dep. 95:13-21.) Ms. DiPaolo says plaintiff also told her that "his stress could all be alleviated, and there would be no need for him to go out on short-term disability and take leave if he had a different territory." (Id.) Taipina says plaintiff left him a similar voice mail message, stating that "[t]he cause of my stress is this territory transfer. I would be ready to come right back to work if this was over. . . . All my stress would be relieved if Rosemarie was transferred instead of me." (Simon Cert., Ex. L at 3.) Plaintiff says that he does not recall these conversations. (Id., Ex. A, W. Satz Dep. 115:11-117:2.)

Novartis had a policy which allowed it to contest any employee's request for disability leave, but it did not contest plaintiff's request. (Berlin Cert., Ex. H, DiPaolo Dep. 99:10-15.) During leave, plaintiff received full salary, benefits, and a commission as if he was an employee working in the Philly South district. (Id., Ex. B, Taipina Dep. 179:6-21.) Plaintiff admits that he was told that he would not need to transfer to Carlisle, but could instead choose from the territories available at the end of his leave. (Complaint ¶34.) However, he says he was not treated properly during his disability leave because Taipina collected his computer and his samples, told him he could no longer use his company credit card, and only paid him the "national average commission." (Simon Cert., Ex. A, W. Satz Dep. 26:22-28:8; 98:5-101:10.)

G. The permanent restraining order

On July 26, 2000, Mrs. Satz and plaintiff agreed to a permanent restraining order. (Berlin Cert., Ex. F, W. Satz Dep. 38:7-42:3.) Plaintiff says he only agreed to it because he wanted to see his daughter and "all this other stuff, not harassing, not threatening, not stalking her, I wasn't going to do anyway. . . . My whole state of mind was that if I sign this, then this afternoon I can go pick up my daughter. . . I would have signed anything just about." (Id. at 42:19-44:16.)

The Order, which is still in effect, states:

1. The Defendant, William Satz, is prohibited from having any oral, written, personal or other form of contact with the Plaintiff, Rosemarie Satz, except as set forth hereinbelow.

2. The Defendant, William Satz, is prohibited from making or causing anyone else to contact or make harassing communications to the Plaintiff, Rosemarie Satz, except as set forth hereinbelow.

3. The Defendant, William Satz, is prohibited from stalking, following or threatening to harm, to stalk or to follow the Plaintiff, Rosemarie Satz, except as set forth hereinbelow.

4. Since both parties are presently employed by the same employer and some contact between the parties is required by virtue of their employment, the parties shall be permitted to have contact as required by their employer.

5. The parties shall have telephone contact necessary to confirm the parenting schedule contained in the Settlement Agreement and the parties shall have contact necessary to pick up and drop off the child for parenting time, however, each party shall remain in their motor vehicle or residence at the time of the transfer.

6. Each party shall request that the Municipal Prosecutor dismiss their respective Complaints filed in the Municipal Court regarding the incident of 7/11/00.

7. Neither party shall disclose any part of this Consent Order to their employer except for paragraph 4. (Berlin Cert., Ex. L.)

On August 10, 2000, in accordance with the terms of the permanent restraining order, plaintiff and Mrs. Satz voluntarily dismissed their claims regarding the July 11th dispute. (Id., Ex. F, W. Satz Dep. 35:10-25.) Plaintiff says he understood this settled the charges and eliminated the need for a court hearing about the facts of the July 11th dispute. (Id. at 44:17-25.)

H. Alleged discriminatory remarks

While on disability leave, plaintiff says he started to get "the cold shoulder" from a friend who said he "heard some terrible things" about plaintiff. (Simon Cert, Ex. A, W. Satz Dep. 129:6-21.) Plaintiff then learned from his Philly South counterpart, Rick Miller, that Taipina "made reference to the fact that Bill was a wife beater in front of" a group of Novartis employees, (id., Ex. G, Miller Dep. 118:1-24), and told Miller personally to "cut his ties" to plaintiff because "the more you associate with Bill Satz the worse for you," (id. at 40:13-16), since "[plaintiff] is a wife beater, he is a frigging loser," (id. at 115:13-16). Miller told plaintiff that he heard Taipina tell some of plaintiff's physician clients in the Philly South district that plaintiff "beat his wife, and that's why he's no longer with us." (Id. at 37:10-21.)

Miller says that he thought plaintiff was transferred to Carlisle because Taipina could not fire him, but could "make his life miserable so he wouldn't want to work for the company any more." (Id. at 38:7-10.) He says that when Taipina "talked about Carlisle, Pennsylvania, he made light of it, jokingly, you know, that it was like in boonesville," (id. at 41:11-15,) and said with a "big smile on his face, . . . [y]ou don't have to worry about Satz any more, he is out of here," (id. at 113:1-8).

Plaintiff decided to take action because "the only way to get somebody to change their minds on that was to prove to them that I wasn't a wife beater." (Simon Cert., Ex. A, W. Satz Dep. 129:6-130:16.) He voluntarily set up and took a lie detector test which found him truthful when he said he never hit his wife, (id., Ex. BB), and he forwarded the results to human resources and "pleaded with [Taipina] to reconsider the decision against me," (id., Ex. A, W. Satz Dep. 144:9-22.)

Plaintiff also filed a discrimination charge with the PHRC and the EEOC on December 15, 2000 alleging gender discrimination. Taipina was aware that plaintiff filed the charges and filed an affidavit stating that:

[c]ontrary to Mr. Satz's allegations, he was not discriminated against in any way. His transfer was based solely upon the fact that a restraining order had been obtained preventing him from having any contact with his wife. (Berlin Cert., Ex. B, Taipina Dep. 137:16-22; Id., Ex. G, Taipina Aff. ¶3.)

I. Selection of a new sales territory

On December 8, 2000, DiPaolo sent plaintiff a letter informing him that his "short-term disability period of 26 weeks will end on January 18, 2001." (Id., Ex. M.) Plaintiff says he was not "emotionally prepared" to return to work, but that "time heals all wounds" and he felt he needed to return to work so he could pay child support, feed his family, and prove to his co-workers that he had not done anything wrong. (Id., Ex. F, W. Satz Dep. 145:6-146:7.)

Ms. DiPaolo says she called field management services and asked them to compile a current report of available territories. (Id., Ex. H, DiPaolo Dep. 104:3-23.) Plaintiff says he considered territories in Manhattan, Northern New Jersey, Bethlehem, Pennsylvania, and Newark, Delaware and that he thought the Bethlehem territory was closest to his home. (Simon Cert, Ex. A, W. Satz Dep. 158:1-160:13.) Ms. DiPaolo says she knew plaintiff "wasn't happy," but thought he would only be happy if he was "back in his original territory." (Berlin Cert., Ex. H, DiPaolo Dep. 108:9-19.)

Plaintiff asked DiPaolo if he could use his earned vacation time instead of accepting the Bethlehem territory in case Novartis initiated a new specialty sales force near his home. (Berlin Cert., Ex. F, W. Satz Dep. 161:6-13.) DiPaolo denied his request, so on January 18, 2001, plaintiff accepted the Bethlehem territory, stating:

I will accept Bethlehem, PA as my territory assignment. I do not like it. It is too far from my home, my sick parents, and my daughter. It is also giving my ex-co-workers reason to believe Rosemarie's false accusations, as the company is definitely not standing behind me at this time. I request a transfer to NE Phila territory in any division ASAP. I've worked too hard for too long to be banished and ostracized like this. (Id. at 161:8-11; Simon Cert., Ex. A, W. Satz Dep. 162:2-22; Berlin Cert., Ex. O.)

Plaintiff drove two hours to Bethlehem, Pennsylvania on January 19th and met his new manager, Jackie Esposito. (Satz Aff. ¶14.) He says he then learned for the first time that the territory extended an additional 100 miles north. (Simon Cert., Ex. A, W. Satz Dep. 164:10-21.) Either Jackie Esposito, (Satz Aff. ¶¶15-16), or plaintiff, (Berlin Cert., Ex. H, DiPaolo Dep. 122:19-22), called DiPaolo and told her that the territory would not work because of the length of plaintiff's commute, (id. at 122:21-24).

Ms. DiPaolo looked at a "fresh list" of available open territories and offered plaintiff the Newark, Delaware territory, where he would work for manager Doug Pace. (Id. at 132:5-13; Berlin Cert., Ex. F, W. Satz Dep. 167:12-14.) Plaintiff says he thought the territory was limited to the northern part of Delaware around Wilmington, and only found out after he accepted the territory that it extended as far south as Dover. (Id. at 167:20-168:9, 169:8-12.) *fn5

J. Plaintiff's Delaware performance

Plaintiff started working in Delaware on February 1, 2001. He immediately told his manager, Doug Pace, that Delaware was not his first choice and that he wanted to use ten to thirteen vacation days between February 5 and March 6 for his "daughter, personal days, and vacation days that I'm entitled to." (Simon Cert., Ex. A, W. Satz Dep. 199:12-25; Berlin Cert., Ex. F, W. Satz Dep. 15:15-17; Id., Ex. T). Plaintiff says that he had a right to use his earned vacation to take his fiancé to the Dominican Republic for her birthday to spend time with his daughter, and no one had a right to tell him otherwise. (Simon Cert., Ex. A, W. Satz Dep. 200:1-202:18.) Pace approved the vacation request, though Ms. DiPaolo recalls that Pace questioned plaintiff's commitment to his work "because he, right off the bat, was requesting vacation days prior to being acclimated into the territory itself." (Berlin Cert., Ex. H, DiPaolo Dep. 142:91-24.)

Plaintiff made clear from the start that he wanted to transfer out of Delaware as soon as he could, but was told that he could not transfer until he fulfilled a one-year commitment to the Delaware territory. (Id., Ex. F, W. Satz Dep. 177:17-23.) Plaintiff says he never heard of the one-year commitment before he accepted the Delaware territory, (id. at 190:4-20; Simon Cert., Ex. A, W. Satz Dep. 177:17-23,) but Pace says he thought the one-year requirement was light because the company generally "strictly enforced a two-year policy," (Berlin Cert., Ex. P, Pace Dep. 92:9-13). Pace thought Novartis was giving plaintiff "some type of leeway" to help "get him to where he wants to go" while still ensuring that he would be committed to his present assignment. (Id.) Plaintiff thought Pace looked at him "with contempt" as though he was "taking [his] eye off the ball of what was supposed to be happening at Delaware" when he asked to transfer. (Berlin Cert., Ex. F, W. Satz Dep. 186:15-25.) He admits that he was not happy in the Delaware territory, but says he "kept it totally inside as much as [he] could" and "devoted [him]self to selling Novartis products to [his] customers in Delaware." (Satz Aff. ¶28; Simon Cert., Ex. A, W. Satz Dep. 172:24-173:8.) He also says he never told Pace he hated Delaware, only that he "hated the drive" to Delaware and "hated being assigned to th[e Delaware] territory because of the drive." (Berlin Cert., Ex. F, W. Satz Dep. 188:17-24.)

Plaintiff's counterpart in Delaware was Ashleigh Hulme. (Id., Ex. I, Hulme Dep. 54:1-5.) Plaintiff spent his first day in Delaware driving with Ms. Hulme to familiarize himself with her and with the territory. (Id. at 54:22-55:5.) Plaintiff told Ms. Hulme that he was in Delaware because of the dispute he had with his ex-wife on July 11 and that "he was suing Novartis for discrimination against him believing her word over his word as far as the allegations of hitting her." (Id. at 56:10-12.) Ms. Hulme says plaintiff told her he was asking for five million dollars from Novartis and would not "be around long" since he assumed the lawsuit would settle soon, (id. at 56:16-20), but plaintiff says he does not recall saying anything about five million dollars and that he does not have "any set figure in mind" for his recovery, (Simon Cert., Ex. A, W. Satz Dep. 218:23-219:11). Ms. Hulme says she never told anyone at Novartis about the conversation. (Berlin Cert., Ex. I, Hulme Dep. 56:22-57:21.)

Ms. Hulme says she had trouble working with plaintiff from the beginning. (Id. at 65:14-16.) He was not there much because of his vacation, personal, and sick days and he had trouble with his commute and with finding certain offices, though he never purchased a map. (Id. at 65:14-66:2.) She was frustrated because plaintiff would promise to drop off samples in the "next day or two," but when she followed up, she would find that the samples were never dropped off. (Id. at 67:9-13.) She also found that plaintiff had not met certain doctors in the territory long after she thought he should have introduced himself, and sat with Philadelphia doctors, instead of Delaware doctors, at lunch meetings. (Id. at 67:6-8, 68:16-69:3.)

Ms. Hulme talked to plaintiff and he promised to "make sure from now on he would be where he needed to be." (Id. at 67:18-19.) While the problems sometimes improved, they never fully resolved, so after a "number of talks" with plaintiff over a "couple of months," she approached Pace. (Id. at 69:9-14, 80:1-6.) She told Pace she was not "getting the support and the help from [plaintiff] that I need in order to be successful in the territory" because she constantly had to double-check everything plaintiff did and often "just go ahead and do the job on [her] own." (Id. at 67:20-68:8; 68:9-15.) Pace says he realized that Ms. Hulme was "frustrated and concerned that the situation would jeopardize the business in North Delaware." (Berlin Cert., Ex. P, Pace Dep. 191:11-13.)

Pace had positive and negative experiences with plaintiff in Delaware. Early on, he observed plaintiff in the field and reported that:

Bill, you are grasping the geography of this new territory well . . . You are extremely passionate and polite in the offices which makes your time with the office staff as well as your actual sales presentation sincere and convincing! Nice job! . . . You have the most experience and sell with enthusiasm and conviction which is contagious. To your district members these qualities are invaluable and they will be looking up to you. You are closing on every call. This is one of the most important steps in the Novartis Sales Model. Thank you for your efforts! (Id., Ex. T.)

He often noted, though, that plaintiff was not at all enthusiastic about the Delaware territory. He says plaintiff "expressed . . . his dissatisfaction with the territory and the drive . . . It seemed just about every time I talked to him it came up." (Id., Ex. P, Pace Dep. 159:23-160:5.) Pace wrote in his notes that plaintiff "[t]old me he hates the drive, hates the territory." (Id., Ex. X at 1.)

Pace had other qualms with plaintiff's performance in Delaware. On March 27, 2001, he was disappointed that plaintiff called in sick to a dinner program and did not make sure his doctors attended. (Id.) Plaintiff says that he never received an invitation to the program. (Simon Cert., Ex. A, W. Satz Dep. 212:10-213:16.)

Also in March, Pace was upset when he found that plaintiff did not "review [his] electronic mail on a daily basis." (Id., Ex. CC.) He wrote plaintiff a memo on March 29, 2001 which he copied to Regional Director Gary Branch, explaining that he expected representatives in his district to check email daily and informing plaintiff that "two separate electronic messages that were sent to you via Lotus Notes on 3/1/2001 and 3/2/2001 were not opened and read for over two weeks. The return receipts were stamped 3/20/2001 and 3/26/2001 respectively." *fn6 (Id.) Plaintiff says this was a "disciplinary letter" that Pace wrote and copied to his boss to "tr[y] to get me fired because this is a very, very minor thing." (Simon Cert., Ex. A, W. Satz Dep. 193:3-20, 197:2-8.) Plaintiff sent Pace an email to express his disappointment, stating that:

you felt the need to email me and then copy Gary Branch with your message about 2 e-mails . . . I had no need to open these . . . Why did you copy Gary Branch on that, but not the email you sent me on my positive teamwork? Do I have a target on my back? . . . I have been working my tail off in Delaware. (Simon Cert., Ex. LL.)

Pace wrote back, informing plaintiff that it was not only his expectation that his staff read and respond to e-mail daily, but that it was "a Sales Functional Competency within the organization that falls under Territory Management." (Id., Ex. MM.)

On April 30, 2001, Pace observed plaintiff in the field. Plaintiff arrived thirty minutes late, but otherwise maintained a positive attitude and performed well. (Berlin Cert., Ex. X at 2.) Pace wrote a positive evaluation for the day, stating:

Bill, thank you for an organized well planned out day! . . . I get a good sense that you are starting to build some relationships with these physicians and that you are starting to get some good time with them. You definitely get their attention and they appear to be listening to you. . . . Your closing skills rank you by far in the top of the district! Your closing skills today exceeded my expectations! You are selling with passion and clearly believe in your promoted products. You have the most experience in the field out of anyone in the district and I expect you to be a leader in the district and lead by example! Stay focused! I promise you, you'll get to where you want to go. (Simon Cert., Ex. NN.)

Then, on May 2, 2001, a "very large meeting [with] all the reps from New York, Pennsylvania, Delaware and New Jersey . . . about 2500 reps" began. (Berlin Cert., Ex. F, W. Satz Dep. 230:8-14, 233:22-24.) Pace says that plaintiff's conduct during the three-day meeting was the "final straw" leading to his termination. (Id., Ex. P, Pace Dep. 253:22-254:20, 257:6-10.) First, plaintiff arrived late. (Id. at 235:5-8). Then, he sat with Philadelphia sales representatives instead of with his Delaware district. (Id.) Then, he did not attend the evening awards banquet, a dinner that was a "very big deal dinner. . . a major production . . . stage, screen, so forth." (Berlin Cert., Ex. P, Pace Dep. 242:1-5; Id., Ex. S, Branch Dep. 73:17-24.)

Plaintiff says that his May 2, 2001 behavior is explainable. First, he was late because he was working. (Simon Cert., Ex. A, W. Satz Dep. 234:18-22.) Second, he did not sit with his district since, when he was late he "ran into the back of the room and grabbed a table rather than disrupt 2500 people to look to see whether they were sitting together or not." (Id. at 234:18-235:2.) Third, he did not attend the banquet because he had to go home to get his anxiety medication which he thought he might need since "the meeting was for the award that I would have won in the year 2000 with my entire ex-district there who would have been looking at me like I was a wife beater." (Berlin Cert., Ex. F, W. Satz Dep. 232:17-21, 235:3-24.) Once home, he found his fiancé was suffering complications from her pregnancy and he needed to care for her. (Id. at 240:1-23.) *fn7

Plaintiff says Pace "accosted [him] at the door" the next day and told him that he had missed a mandatory meeting and he was going to have to write him up. (Simon Cert., Ex. A, W. Satz Dep. 238:11-13.) Plaintiff says that he responded by saying:

Doug, I didn't know the meeting was mandatory. There was free-flowing alcohol and 2500 people there. It's not like we were crunching numbers. Second of all I was ineligible for the award, and thirdly, I had a family emergency. (Id. at 238:11-23.)

Sales representative Rick Miller says that other sales representatives did not attend the banquet and that he is "not aware of anyone ever being disciplined except Bill Satz, for missing an awards banquet." (Miller Aff. ¶17.)

Pace called Ms. DiPaolo and told her that he would like to fire plaintiff. (Berlin Cert., Ex. P, Pace Dep. 232:15-253:2.) He says that his decision was grounded in the "belief that this individual was not willing to accept the commitment" to Delaware based on his own observations and on Ms. Hulme's complaints. (Id. at 254:15-21, 257:6-258:11.) As a result, plaintiff's employment with Novartis was terminated on May 16, 2001. (Berlin Cert., Ex. F, W. Satz Dep. 241:2.) Pace explained that:

I believed in Bill. As I mentioned in my field contacts, I thought he could be a tremendous asset to this company, to my team through leadership, and he knows that I have said that to him. But when you have a group of sales representatives, young tenured sales representatives that could be influenced either negatively or positively, it came to a point, I would not go on like this. . . When I added up not meeting expectations, the constant complaining about the territory, his counterpart calling me and complaining, my belief was that it was not getting any better. (Id., Ex. P, Pace Dep. 160:9-22.)

Pace says plaintiff's discrimination action that was pending against the company did not influence his decision because, while he "heard bits and pieces along the way," and was aware that "there was some type of suit against the company, . . . it was left at that." (Berlin Cert., Ex. P, Pace Dep. 84:8-21.) He says that he "didn't want to know [the problem]. That's none of my business." (Id. at 84:8-11.). Plaintiff admits that he cannot remember telling Pace his "why [he] was at odds with human resources," and says that "until the day [he] was fired, [Pace] stood by his story that he had no idea." (Berlin Cert., Ex. F, W. Satz Dep. 192:1-11.)

Plaintiff filed suit in this Court against Novartis and Dennis Taipina on December 19, 2001 alleging claims of reverse gender discrimination and retaliation, handicap discrimination, hostile work environment, intentional infliction of emotional distress, and infringement of protected privacy rights based on the decisions of Novartis to transfer him from the Philly South District and to terminate his employment. Defendants filed a motion for summary judgment on February 21, 2003, arguing that there is no material question of fact regarding any of his claims because the record shows that plaintiff was not discriminated against. The Court heard oral argument on March 7, 2003.

III. DISCUSSION

Defendants seek summary judgment on plaintiff's claims, arguing that plaintiff cannot assert claims under the New Jersey Law Against Discrimination because he was employed exclusively in Pennsylvania and Delaware and that there is no material question of fact regarding plaintiff's claims of gender discrimination, invasion of privacy, and intentional infliction of emotional distress.

A. Standard of Review

Summary judgment is appropriate when the record "show[s] 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." Fed. R. Civ. P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if it might affect the outcome of the suit under the applicable rule of law. Id.

In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; "the nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in his favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Liberty Lobby, 477 U.S. at 250. *fn8

B. Analysis

Defendants seek summary judgment on the claims in plaintiff's twelve count complaint. The parties have agreed that the claims in Counts I and II of plaintiff's complaint should be dismissed with prejudice because plaintiff cannot pursue a claim for gender discrimination or retaliation under section 1981 of the Civil Rights Act of 1988, 42 U.S.C. §1981, which provides a remedy for racial discrimination. The Court must now determine (1) whether plaintiff, who was employed in Pennsylvania and Delaware, may pursue the New Jersey Law Against Discrimination claims contained in five counts of his Complaint; (2) whether there remains a material issue of fact regarding his discrimination claims brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §2000e, the Pennsylvania Human Relations Act (PHRA), 43 P.S. §951, and the Pennsylvania Equal Rights Amendment (PERA); (3) whether there remains a material issue of fact regarding his privacy claim; and (4) whether there remains a material issue of fact regarding his intentional infliction of emotional distress claim.

1. NJLAD claims

The Court must first determine whether plaintiff can assert claims under the New Jersey Law Against Discrimination (NJLAD) when defendants had offices in New Jersey, but plaintiff worked exclusively in Pennsylvania and Delaware. Defendants argue that summary judgment must be granted because plaintiff cannot assert NJLAD claims because he did not work in New Jersey. (Defs.' Br. at 25.) Plaintiff, however, argues that his employment situation had a sufficient connection to New Jersey to allow him to assert the NJLAD. (Pl.'s Br. at 36.)

The NJLAD was enacted in 1945 with a goal of "nothing less than the eradication of the cancer of discrimination." McKenna v. Pacific Rail Serv., 32 F.3d 820, 840 (3d Cir. 1994) (citing Lehmann v. Toys "R" Us, Inc., 132 N.J. 587, 600 (1993)). The New Jersey Supreme Court explained that the NJLAD shows that the "clear public policy of this state is to abolish discrimination in the workplace," especially gender discrimination which is "peculiarly repugnant in a society which prides itself on judging each individual by his or her merits." McKenna, 32 F.3d at 840 (quoting Lehmann, 132 N.J. at 600; Fuchilla v. Layman, 109 N.J. 319, 334 (1988)). No longer is employment discrimination "just a matter between employer and employee. The public interest in a discrimination-free workplace infuses the [NJLAD] inquiry." McKenna, 32 F.3d at 840.

The NJLAD, however, does not apply every time a plaintiff alleges that he has suffered discrimination. Instead, for New Jersey "substantive law to be [applied] in a constitutionally permissible manner, [New Jersey] must have a significant contact or significant aggregation of contacts, creating state interests, such that choice of its law is neither arbitrary nor fundamentally unfair." Blakey v. Continental Airlines, Inc., 164 N.J. 38, 65 (2000) (quoting Allstate Ins. Co. v. Hague, 449 U.S. 302, 312-13 (1981)).

New Jersey courts have found that it is unfair to subject an employer to different legal requirements if its employees reside in different states. Buccilli v. Timby, Brown & Timby, 283 N.J. Super. 6, 11 (App. Div. 1995) (citing cases). Employment cases which straddle state lines can involve several different states, including the state of the employee's residence, the state where the employee works, the state where the employer's headquarters is located, the state where the employer does business, and the state where the alleged discrimination occurred. Generally, though, regardless of the number of states involved, New Jersey courts have applied the law of the state where the employee works to claims of workplace discrimination. The Buccilli court explained that the "claim of a New Jersey resident for her allegedly wrongful dismissal from out-of-state employment is governed by the law of the state in which she was employed." Buccilli, 283 N.J. Super. at 10. Where "workers who reside in several states work side by side," an employer's "relationship with its employees in [one] office should not be subject to different legal principles depending on the state of the employee's domicile." Shamley v. I.T.T. Corp., 869 F.2d 167, 172 (2d Cir. 1989). The law of the state of the employee's workplace applies to claims arising from his employment because the state has an "unusually strong interest in applying its own law to employment contracts involving work in [its] state." Id.

New Jersey courts have consistently applied the law of the state of employment to workplace claims, and have therefore only applied the NJLAD if the plaintiff worked in New Jersey. *fn9 When a New Jersey resident worked exclusively in Pennsylvania, Pennsylvania law (the law of the state of her workplace) applied and the NJLAD (the law of the state of her residence) did not. Buccilli, 283 N.J. Super. at 10-11. Likewise, when a New Jersey resident worked in New York, New York law applied and New Jersey law did not. Id. (citing Shamley, 869 F.2d at 172); see also Perry v. Prudential-Bache Securities, Inc., 738 F. Supp. 843, 854 (D.N.J. 1989). When a New Jersey resident worked for an employer whose headquarters were in New Jersey, but worked exclusively in the Pennsylvania office, Pennsylvania law (the law of the state of her workplace) applied and the NJLAD (the law of the state of her residence and the employer's headquarters) did not. Brunner v. AlliedSignal, Inc., 198 F.R.D. 612, 613-14 (D.N.J. 2001). When a New Jersey resident worked for the state of Illinois in an office in New Jersey, New Jersey law applied. McDonnell v. State of Illinois, 319 N.J. Super. 324, 340-41 (App. Div. 1999). *fn10

Here, during the period when the alleged discrimination occurred, plaintiff worked exclusively in Pennsylvania and Delaware. He was on vacation from his Northeast Philadelphia, Pennsylvania territory when Mrs. Satz obtained the restraining order and told defendants about it. He was at work in Pennsylvania on July 20, 2000 when he was told that he was being transferred to Carlisle, Pennsylvania. (Berlin Cert., Ex. F, W. Satz Dep. 49:9-12; Id., Ex. B, Taipina Dep. 65:4-23.) He took disability leave and was paid his salary and benefits as though he was working in the Northeast Philadelphia, Pennsylvania territory. (Berlin Cert., Ex. B, Taipina Dep. 179:6-21.) After his leave, he accepted a transfer to the Bethlehem, Pennsylvania territory. (Simon Cert., Ex. A, W. Satz Dep. 158:1-160:13; Berlin Cert., Ex. O.) After one day in the Bethlehem, Pennsylvania territory, plaintiff accepted a transfer to the Newark, Delaware territory. (Berlin Cert., Ex. F, W. Satz Dep. 167:12-14; Id., Ex. H, DiPaolo Dep. 132:5-13.) While assigned to the Delaware territory, he attended the May 2, 2001 district meeting at the Marriott in Philadelphia, Pennsylvania, where his manager (whose office was in Delaware) decided plaintiff should be fired. (Berlin Cert., Ex. F., W. Satz Dep. 230:1-14; Id., Ex. P, Pace Dep. 253:22-254:20, 257:6-10.) Plaintiff was told of his termination in Delaware on May 16, 2001. (Berlin Cert., Ex. F, W. Satz Dep. 241:2.)

While plaintiff has pointed out the several connections that this case has with the state of New Jersey, they are insufficient to trigger application of the NJLAD to his claims. First and foremost, plaintiff's claims are about an allegedly wrongful transfer in Pennsylvania and an allegedly wrongful termination in Delaware. As the New Jersey Appellate Division has held, a claim for an "allegedly wrongful dismissal from out-of-state employment is governed by the law of the state in which []he was employed." Buccilli, 283 N.J. Super. at 10. Plaintiff was never employed in New Jersey. Plaintiff's office was mobile since he worked out of his car, yet he has not shown any evidence that he traveled for business purposes into New Jersey at any time pertinent to his claims.

Second, New Jersey courts have found that the connections this case has to New Jersey are insufficient to trigger the NJLAD for the benefit of an out-of-state employee. Defendant Novartis is headquartered in East Hanover, New Jersey, and Taipina, Goldberg, and DiPaolo, individuals involved in the decision to transfer plaintiff, have offices in New Jersey. (Berlin Cert., Ex. B, Taipina Dep. 7:16-21; Id., Ex. G, Taipina Aff. ¶1.) However, the Brunner court found that a company's New Jersey headquarters does not trigger application of the NJLAD. See Brunner, 198 F.R.D. at 613-14.

Third, the other connections that this case has to New Jersey occurred before the July 2000 decision to transfer plaintiff and the May 2001 decision to terminate his employment. While plaintiff initially worked in the Pennsylvania portion of the Philly South sales district which straddled New Jersey and Pennsylvania, plaintiff did not work in the Philly South district after he was told of the transfer decision. (Berlin Cert., Ex. B, Taipina Dep. 4:15-24, 179:6-21; Id., Ex. E, R. Satz Dep. 78:4-24.) He immediately took disability leave and never again reported to the Philly South district.

Likewise, while plaintiff did live at one time in New Jersey, not only is his state of residence insufficient to trigger the NJLAD, see Buccilli, 283 N.J. Super. at 10-11, but he moved to Huntington Valley, Pennsylvania in early 2000 because of his divorce, (Simon Cert., Ex. J, W. Satz Dep. 190:9-10). Mrs. Satz did continue to live and work in New Jersey after the divorce and the domestic dispute was at her New Jersey home on July 11, 2000, (Berlin Cert., Ex. B, Taipina Dep. 25:3-11, 142:15-17, 184:16-20; Id., Ex. E, R. Satz Dep. 12:5-14; Simon Cert., Ex. J, W. Satz Dep. 191:23-192:21), but this action is not about plaintiff's marriage, divorce, or the merits of the July 11, 2000 domestic dispute. This action is about whether defendants discriminated against plaintiff, a Pennsylvania resident employed in Pennsylvania, when they learned of the restraining order. Plaintiff's underlying marital problems in New Jersey do not change the fundamental nature of this action. It remains a claim about an "allegedly wrongful dismissal from out-of-state employment" and is thus "governed by the law of the state in which []he was employed." Buccilli, 283 N.J. Super. at 10. Plaintiff was not employed in New Jersey.

Therefore, plaintiff may not assert claims against defendants under the NJLAD and this Court will grant summary judgment on plaintiff's NJLAD claims in Counts IV, V, VI, VII, and VIII of his complaint.

2. Reverse gender discrimination claims under Title VII, the PHRA, and the PERA

Defendants seek summary judgment on the discrimination claims in plaintiff's complaint, arguing that there is no material issue of fact regarding the claims brought under Title VII, the PHRA, *fn11 or the PERA. *fn12 (Defs.' Br. at 5, 47, 55.) Plaintiff, however, argues that there is both direct and indirect evidence of discrimination that precludes summary judgment.

In reverse gender discrimination cases, the plaintiff may proceed under two theories: the "mixed motives" theory of Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), and the "pretextual" theory of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under each theory, the basic premise is the same -- that the employment action was discriminatory -- but the burden of proof is different.

In a "mixed motives" case, the plaintiff must offer "direct evidence" of discrimination which shows that an "unlawful motive was a substantial motivating factor in th[e employer's] decision." Wilson v. Susquehanna Twp. Police Dept., 55 F.3d 126, 129 (3d Cir. 1995) (quoting Miller v. Cigna Corp., 47 F.3d 586, 594 (3d Cir. 1995)). Then, 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 the plaintiff's gender into account." Wilson, 55 F.3d at 129 (quoting Price Waterhouse, 490 U.S. at 258).

In a "pretext" case, "plaintiffs [may] proceed without direct proof of illegal discrimination [because] circumstances are such that common sense and social context suggest that discrimination has occurred." Iadimarco v. Runyon, 190 F.3d 151, 157 (3d Cir. 1999). In such cases, the plaintiff bears a heavier burden of proof. Wilson, 55 F.3d at 130. He must first establish a prima facie case of discrimination by presenting "sufficient evidence to allow a fact finder to conclude (given the totality of the circumstances) that the defendant treated plaintiff less favorably than others because of his . . . sex." Id. at 163. The burden then shifts to the defendant employer to articulate a legitimate, non-discriminatory reason for the employment action which, if taken as true, would permit a factfinder to conclude that unlawful discrimination was not the reason for the employment action. Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 253 (1981); McDonnell Douglas, 411 U.S. at 802-03. Then, the burden shifts back to the plaintiff to show that the employer's stated reason for the action is a pretext for the employer's actual discriminatory motivation. St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 507-08 (1993); Burdine, 450 U.S. at 253, 256; McDonnell Douglas, 411 U.S. at 804-05. *fn13

Here, plaintiff has argued that he may proceed under both the mixed motives and the pretext theories. The Court will consider each in turn.

(a) Mixed motives theory

A plaintiff who claims that he has direct evidence of discrimination "faces a heavy burden" before he is able to utilize the mixed motives theory of discrimination. Hankins v. City of Philadelphia, 189 F.3d 353, 364 (3d Cir. 1999). *fn14 "Stray remarks in the workplace, statements by nondecisionmakers, or even statements by decisionmakers unrelated to the decisional process itself, will not trigger a Price Waterhouse analysis." Id. Instead, the plaintiff must point to "conduct or statements by persons involved in the decisionmaking process that may be viewed as directly reflecting a discriminatory attitude." Id. (quoting Starceski, 54 F.3d at 1096).

Comments which have triggered the Price Waterhouse analysis include the statement to African American that the position was being reserved for the "gay, white community," Hankins, 189 F.3d at 365, and the explanation given to a female that she did not get the job because "Miles wanted a man," Wilson, 55 F.3d at 130. "The most obvious and compelling example [of direct evidence] would be a remark to the effect that `I won't hire you because you are a woman' or `I'm firing you because you're not a Christian.'" Hankins, 189 F.3d at 365 (quoting Venters v. City of Delphi, 123 F.3d 956, 973 (7th Cir. 1997)). Seen in the light most favorable to a plaintiff, such comments, when alleged, support a plaintiff's burden on a motion for summary judgment. *fn15

Here, plaintiff presented the testimony of Novartis salesperson Rick Miller, who testified that Taipina, who was involved in the decision to transfer plaintiff, "made reference to the fact that [plaintiff] was a wife beater in front of our group," and told a physician that plaintiff "beat his wife and that's why he's no longer with us." (Simon Cert., Ex. G, Miller Dep. 37:10-21, 118:1-24.) Plaintiff testified that Taipina told him that he had forty-eight hours to either make the transfer to Carlisle, Pennsylvania or resign "because you're a bully and a wife beater." (Berlin Cert., Ex. F, W. Satz Dep. 95:7-8; Simon Cert., Ex. A, W. Satz Dep. 45:19-22, 93:19-94:15.) Plaintiff says that these comments show that Taipina had a discriminatory animus against men as aggressors and that Taipina then acted on this discriminatory animus when he transferred him to "boonesville," hoping he would quit and Novartis would not need to fire him. (Berlin Cert., Ex. F, W. Satz Dep. 120:24-121:5; Simon Cert., Ex. G, Miller Dep. 41:11-15, 113:1-8.)

This Court finds that no reasonable jury could find that Taipina's alleged use of the term "wife beater" in the context of this case shows that he had a discriminatory animus against men. *fn16 Defendants argue that "[t]he term `wife-beater' does not directly reflect gender-bias against males. At its most derogatory use it conveys a belief that a person has engaged in certain behaviors or actions; not an expression of animosity towards that person as a male." (Defs. Br. at 9.) This Court agrees. Taipina's reference to plaintiff as a "wife beater" was geared toward plaintiff's behavior. It is undisputed that Taipina knew that Mrs. Satz, plaintiff's ex-wife, had obtained a restraining order against plaintiff because "he got physical with me." (Berlin Cert., Ex. E, R. Satz Dep. 13:18-22.) Taipina had been aware of the Satzes marital problems throughout their divorce proceedings, had watched their relationship degrade, and had previously been approached by Mrs. Satz about her stress at home. (Id. at 8:12-16, 18:2-19:18; Berlin Cert., Ex. G, Taipina Aff. ¶¶4-7.) Before he ever knew of the restraining order, he had spoken to his manager and to human resources for advice regarding the tension he sensed between the ex-spouses employed in his district. (Id., Ex. B, Taipina Dep. 19:14-20.) Taipina's "wife beater" comment was not made in reference to all males; it was made in reference to a male who had a restraining order entered against him because of an act of violence against his ex-wife. The term may have been unpalatable or harsh, but it was not discriminatory toward the male gender. No reasonable jury could find that plaintiff has met the "heavy burden" needed to sustain a mixed motives discrimination claim. No material fact tends to support plaintiff's claim of direct discrimination.

(b) Pretext theory

Defendants also argue that plaintiff cannot prevail under the pretext theory of discrimination of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), because he has failed to present a prima facie case of discrimination and because he has failed to show that their legitimate business reason for transferring plaintiff was pretextual. Defendants argue that he has not presented any evidence that could allow a fact finder to conclude that defendants treated plaintiff less favorably than other similarly situated employees because he was the only employee who had a restraining order against him when defendants decided to transfer him and that he has not presented anything to indicate that his transfer was for any reason other than the legitimate need to comply with the restraining order and maintain a safe work environment for fellow employee Rosemarie Satz. Plaintiff, however, argues that he has presented a prima facie case of discrimination because he was treated differently from his similarly situated ex-wife as discrimination based on his gender. He asks the Court to find that the existence of the restraining order did not distinguish plaintiff and his ex-wife and to find that it was a pretext for discrimination.

Plaintiff admits that the restraining order provided a sufficient basis and a legitimate reason to separate plaintiff and his ex-wife. *fn17 He argues (1) that he was similarly situated in spite of the restraining order, and (2) that although it is being presented as the legitimate business reason for the transfer, it is a pretextual reason covering actual discrimination. This Court finds that plaintiff was not similarly situated when the transfer decision was made and that, even if he was, he has raised no issue of fact about defendants' asserted legitimate business reason.

First, plaintiff argues that he became similarly situated with his ex-wife when he obtained a restraining order against her, but defendants still treated him differently. He does not dispute that defendants made their decision to transfer him when he did not have a restraining order, that defendants were only aware of one restraining order when they made their decision, or that a permanent restraining order still prohibits him from most contact with his ex-wife. He argues, though, that defendants should have reconsidered their decision once they learned he had a restraining order and should have "conducted an investigation at that point rather than tell me the decision was final [and] kill somebody's career and reputation over a bitter ex-wife who's telling lies." (Berlin Cert., Ex. F, W. Satz Dep. 46:21-47:11.)

Plaintiff, however, has presented nothing to undermine the fact that defendants made the decision to transfer plaintiff when they knew of only one restraining order. He has presented the testimony of Dennis Taipina where he admitted that he could have reconsidered his decision, (Berlin Cert., Ex. B, Taipina Dep. 150:12-16), but he has not presented anything that supports his allegation that defendants should have reconsidered the decision they had previously made with the advice of the human resources department and the legal department. Plaintiff and his ex-wife were not similarly situated when the decision to transfer plaintiff was made; he was restrained from contact with fellow salesperson Rosemarie Satz; therefore, he has not presented a prima facie case of differential treatment based on sex.

Second, even if plaintiff were able to present a prima facie case of discrimination, he cannot raise any question of fact about defendants' legitimate business reason for the decision they made. *fn18 Plaintiff argues that defendant's Policy Manual raises an issue because defendants did not investigate the situation and talk to plaintiff as required by their "Policy Against Workplace Threats and Violence." This Court, however, finds that the Policy Manual does not raise any issue of fact that undermines defendants' stated reason for plaintiff's transfer.

Plaintiff is correct that the Novartis "Policy Against Workplace Threats and Violence" states that:

The local Crisis Management Team will conduct an investigation immediately upon notification of a threat of violence, and notify the Security Department. The Security Department will provide support and counsel as needed. (Simon Cert., Ex. S at 1.2.1 (emphasis added)).

However, this investigation provision does not apply to plaintiff's situation. The manual differentiates between threats of violence in the workplace, for which immediate notification and investigation is needed, and protective and restraining orders for which the company must be notified so it can comply with the order. An employee's report that another employee threatened her or mistreated her requires an investigation because the report is a mere allegation. The Manual, thus provides for immediate investigation, "removal [or] suspension of an employee being investigated," implementation of immediate "security provisions," and "prompt and appropriate intervention" to ensure the safety of the threatened employee, (id. at 1.2.1-1.2.4), while also requiring "prompt and appropriate disciplinary action" to any "employee who maliciously and falsely accuses another employee of a threat or an act of violence" to ensure the protection of the accused employee, (id. at 1.5).

Restraining orders, on the other hand, are not mere accusations, but are orders of the court which establish that violence has occurred or has been threatened and which require action. *fn19 Plaintiff himself consented to making the restraining order against him permanent while dropping the temporary order against his ex-wife. No longer can the company investigate whose word to believe or whether the threat actually occurred; instead the company must accept the order of the court and comply with it. The Manual thus requires the employee to notify the employer of the restraining order so that it can implement measures which "protect[] the life, safety and health of employees." (Id. at 1.6.) *fn20

Here, the record shows that defendants acted in good faith and with the belief that plaintiff needed to be separated from his co-worker Rosemarie Satz because the court had prohibited him from contacting her. Plaintiff has not presented a scintilla of evidence, other than his admitted "conjecture" that discrimination must have occurred because he was transferred, (see Berlin Cert., Ex. F, W. Satz Dep. 120:24-121:5), to contradict the evidence in the record that supports defendant's legitimate business need to comply with a court order and protect its employees from conflict, violence, and confrontation in the workplace. As a result, this Court finds that summary judgment should be granted in defendant's favor as to the discrimination claims in Counts III, IX, and XII of plaintiff's complaint. *fn21

3. Privacy claims

This Court will also grant summary judgment on plaintiff's claim that defendants infringed his privacy rights by obtaining "highly private and personal information from Rosemarie Satz . . . and us[ing] it as the basis for a punitive employment decision." (Pl.'s Br. at 47.) To establish a claim for unreasonable intrusion, a plaintiff must show that the defendant intentionally intruded, physically or otherwise, upon the solitude or seclusion of another or of his private affairs or concerns, in a manner that would be highly offensive to a reasonable person. Restatement (Second) of Torts §652(B); see also Pro Golf Mfg. v. Tribune Review Newspaper Co., 570 Pa. 242, 247 (2002); Hennessey v. Coastal Eagle Point Oil Co., 129 N.J. 81, 94 (1992). Here, the record is clear, as plaintiff argued in support of his discrimination claims, that defendants did not investigate the private details of the July 11, 2000 incident, but accepted the validity of the public court order. Moreover, it is undisputed that the tension between the Satzes had spilled into the workplace leading to noticeable discomfort between the two co-workers when in each other's presence leading up to and after their divorce. The company had a legitimate interest in paying attention to a workplace conflict which had its genesis in the employees' private lives. Therefore, because there is a complete absence in the record of any indication that defendants intentionally intruded into plaintiff's private affairs, this Court will grant summary judgment on plaintiff's privacy claim in Count XI of his complaint.

4. Intentional infliction of emotional distress

This Court will also grant summary judgment on plaintiff's intentional infliction of emotional distress claim. To sustain a claim for intentional infliction of emotional distress, plaintiff needs to show extreme and outrageous conduct by the defendant that is intentional or reckless and that causes the plaintiff severe emotional distress. Buckley v. Trenton Saving Fund Soc., 111 N.J. 355, 366 (1988); Hoy v. Angelone, 691 A.2d 476, 482 (Pa. Super. Ct. 1997), aff'd, 720 A.2d 745 (Pa. 1998). The conduct must be "so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized society." Snyder v. Specialty Gas Prods., Inc., 658 A.2d 366, 375 (Pa. Super. Ct. 1995); Buckley, 111 N.J. at 366.

Plaintiff argues that defendants' decisions to transfer him and to terminate him were extreme and outrageous. For reasons explained supra, however, this Court has found that defendants' transfer and termination decisions were legitimate business decisions. As such, this Court also finds that they were not extreme and outrageous and did not exceed all possible bounds of decency. Therefore, this Court will grant defendants' motion for summary judgment on the intentional infliction of emotional distress claim in Count X of plaintiff's complaint.

IV. CONCLUSION

For the reasons discussed herein, and because plaintiff has not produced evidence which raises a question of fact regarding the claims in his complaint, the motion for summary judgment of defendants Dennis Taipina and Novartis Pharmaceuticals Corp. will be granted and Plaintiff's Complaint will be dismissed with prejudice.

The accompanying Order is entered.

ORDER

This matter having come before the Court upon the motion of defendants Dennis Taipina and Novartis Pharmaceuticals Corp. for summary judgment on the claims in the Complaint of plaintiff William Satz, pursuant to Rule 56, Fed., R. Civ. P. [Docket Item 40-1]; and the Court having considered the parties' written submissions, the oral arguments made on March 7, 2003, and the supplemental letter briefs dated March 13, 2003 and March 18, 2003; and for the reasons expressed in Opinion of today's date;

IT IS this 17th day of April, 2003, hereby

ORDERED that Counts I and II of the Complaint are voluntarily DISMISSED WITH PREJUDICE; and

IT IS FURTHER ORDERED that the motion for summary judgment of defendants Dennis Taipina and Novartis Pharmaceuticals Corp. on plaintiff William Satz's Complaint [Docket Item 40-1] as to the remaining Counts III through XII be, and hereby is, GRANTED, and JUDGMENT is entered in favor of defendants as to these counts; and

IT IS FURTHER ORDERED that Plaintiff's Complaint be, and hereby is, DISMISSED WITH PREJUDICE;

No costs.


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