On appeal from Superior Court of New Jersey, Law Division, Morris County, Docket Number L-3038-00.
Before Judges Ciancia, Parker and R. B. Coleman.
The opinion of the court was delivered by: Parker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
After seven days of trial, plaintiff's claims of age discrimination and retaliation under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, and intentional infliction of emotional distress were dismissed by the court. She appeals and we affirm.
Plaintiff was first employed by PNC Bank Corp.'s (PNC) predecessor in 1983. She was promoted to branch manager in Budd Lake and then to Whippany, a larger branch. She performed satisfactorily until 1994 when she was reprimanded for closing her son's home equity loan when it had only been conditionally approved. In March 1996, plaintiff's branch failed an audit and her regional manager, Leo Ahern, evaluated her job performance for 1995-96 as "marginal."
Plaintiff was "very dissatisfied" with Ahern's appraisal and disagreed with his emphasis on the audit failure. According to plaintiff, other branch managers who failed audits did not get marginal reviews, and her branch placed fifth out of the twenty that Ahern supervised. Ahern and Michael Brundage, plaintiff's market level manager, noted, however, that plaintiff failed to correct deficiencies from the failed audit. Brundage agreed with Ahern's decision in "placing the weight on the audit" and noted that plaintiff's "sales and service numbers were on the downturn."
Plaintiff was concerned about losing her job and wanted to transfer out of Ahern's region, but her marginal rating prevented the transfer. Ahern complained that plaintiff did not understand or assume responsibility for the severity of the audit violations, and that she became hostile and made no attempt to work with him. Plaintiff claimed that she talked to Ahern but "didn't get any satisfaction."
Plaintiff then contacted Martha Sellers of human resources, who did an initial investigation of plaintiff's complaint. Sellers found no support for plaintiff's claim that her review was unfair. Plaintiff later complained of age discrimination and after investigation, that claim, too, was found to be unsupported.
In August 1996, plaintiff filed a complaint with the Division on Civil Rights alleging age and gender discrimination. She claimed that she "was not part of [Ahern's] plan" because in 1996 and the beginning of 1997 Ahern hired five men and one woman under age thirty-one as branch managers. In response to plaintiff's civil rights complaint, Brundage wrote a memo "to file" stating that transactions on accounts of plaintiff's family members in 1994 and 1995 constituted a conflict of interest, and that those accounts should be transferred to another office.
In November 1996, plaintiff requested a "step down" to assistant branch manager. The request was not granted. After Ahern evaluated plaintiff's performance as "marginal" again in December 1996, plaintiff renewed her request because she believed that this was the only way to preserve her job. Brundage testified that plaintiff's supervisors "all pretty much agreed that... she really should stay in Whippany and clean up the audit." She made no attempt to work things out, however, and Ahern testified that he could have fired plaintiff after the two marginal evaluations, but he did not do so.
As a branch manager, plaintiff's salary was $37,000. Her grade had a salary range of $35,400 to $60,300. Plaintiff testified that, from discussions with Brundage and human resources personnel, she understood that her step down would not change her salary or grade. In April 1997, her request for a step down was granted and she accepted the assistant branch manager position in Sparta. After the transfer to Sparta, Ahern no longer had any role in plaintiff's supervision. Plaintiff's salary remained the same, but her new position had a salary range of $25,000 to $41,600. Brundage testified that "it is common knowledge that your salary grade would change" with a move from branch manager to assistant branch manager. According to plaintiff's new supervisor, Barbara Chernes, the pay grade for the assistant manager in the Sparta branch was established before plaintiff transferred to that position. When plaintiff learned of her change in grade level, she contacted human resources and was advised that Brundage refused to revise it.
In June 1997, plaintiff's performance was rated "achieved" and she received a 2.5 percent merit increase in salary. The same month, plaintiff filed a complaint against Brundage with the Division on Civil Rights, alleging age and gender discrimination.
Barbara Chernes, the Sparta branch manager, testified that plaintiff was initially pleased about her transfer. By the fall of 1997, however, her performance level declined. Plaintiff advised Chernes that her grandson was diagnosed with a tumor and she needed time off. After she returned to work, her grandchild needed a bone marrow transplant, and plaintiff told Chernes that the child was likely to die. During ...