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June 3, 2005.


The opinion of the court was delivered by: WILLIAM BASSLER, District Judge


In 1999, Plaintiff Martha Geaney ("Plaintiff") began working as an Account Executive for Computer Sciences Corporation ("CSC"), a company that provides information technology services to private companies and the federal government. In January 2003, after Plaintiff failed to meet certain sales goals, CSC gave Plaintiff the option of participating in a performance improvement plan ("PIP") or of accepting a severance package. Plaintiff rejected both options and, on January 27, 2003, CSC terminated Plaintiff's employment.

Plaintiff thereafter sued CSC and three members of CSC's management team, Robert Fassett, George Bacon, and Edward Mello, in New Jersey Superior Court, Passaic County, alleging: (1) breach of contract; (2) sex discrimination in violation of the New Jersey Law Against Discrimination ("NJLAD"); (3) violation of a non-compete agreement; and (4) fraud. On June 19, 2003, CSC and the individual defendants removed the case to federal district court on the basis of diversity jurisdiction.*fn1

  The parties completed discovery in May 2004, including depositions. By Stipulation dated June 28, 2004, Plaintiff voluntarily dismissed the fraud claim and the claim relating to the non-compete agreement. Plaintiff also voluntarily dismissed the Complaint as to defendants Bacon and Mello.

  The remaining defendants, CSC and Fassett (collectively, "Defendants"), now move for summary judgment on the sex discrimination and breach of contract claims. For the reasons set forth in this Opinion, Defendants' motion is granted with respect to the sex discrimination claim and denied with respect to the breach of contract claim. I. SEX DISCRIMINATION CLAIM

  A. Background*fn2

  In April 1999, Plaintiff began working for CSC as an Account Executive, starting at an annual salary of $195,000 plus bonuses. (Pl. Rule 56.1 Statement ¶ 6.) Plaintiff worked primarily out of CSC's office in West Orange, New Jersey. (Fassett 5/12/04 Dep. at 18.) As an Account Executive, Plaintiff was responsible for selling CSC's computer consulting services to potential clients. (Geaney 1/14/04 Dep. at 125.)

  In March 2002, CSC reorganized its practice groups and Plaintiff was assigned to the Diversified Industries and Consumer Products Practice Group for the New York metropolitan area ("Diversified Group"). (Geaney 1/14/04 Dep. at 130.) As a result of the reorganization, Robert Fassett became Plaintiff's supervisor. (Id.) Plaintiff claims that while she was under his supervision, Fassett discriminated against her on the basis of her sex.*fn3 Initially, Plaintiff was one of three Account Executives assigned to the Diversified Group — the other two were Roger Doty and Stephen Georghakis. (Fassett 5/12/04 Dep. at 16-17; 50.) By mid-2002, both Doty and Georghakis had left the Diversified Group — Doty was transferred to another position within CSC and Georghakis was terminated after failing to successfully complete a PIP. (Id.) Plaintiff was then the only Account Executive assigned to the Diversified Group until August 2002, when Fassett hired four new Account Executives — Robert Newman, David Jewell, Michael Orozco, and Rick Kilcoyne. (Id. at 28.) During the entire period that Plaintiff was assigned to the Diversified Group she was the only female Account Executive assigned to it.

  B. Plaintiff's Termination

  On January 9, 2003, Fassett met with Plaintiff to discuss Plaintiff's interim performance evaluation for the six-month period from April 2002 through October 2002 ("Interim Evaluation"). The Interim Evaluation showed that Plaintiff was well below targeted revenue and profit goals. (Pl. Rule 56.1 Statement ¶ 95; Ward Cert., Exh. I.) According to Defendants, because of Plaintiff's "poor sales performance," Fassett gave Plaintiff two options: she could either participate in a PIP, with no option for severance pay if she did not successfully complete the PIP, or she could accept immediate termination with severance pay. (Pl. Rule 56.1 Statement ¶ 98; Def. Rule 56.1 Statement ¶ 19.) Defendants contend, and Plaintiff disputes, that Fassett's conduct was consistent with CSC policy. (Id. at ¶ 20.)

  On January 10, 2003, Plaintiff informed Fassett that she was interested in the severance package. (Geaney 1/14/04 Dep. at 170.) Five days later, on January 15, Fassett e-mailed Plaintiff the details of CSC's severance offer ("Severance Agreement"). (Id. at 174-76.) The Severance Agreement consisted of nine weeks salary, or $34,085.77, and imposed on Plaintiff a number of terms and conditions, including a strict covenant not to compete. (Id. at 174-78.)

  After consulting with an attorney, Plaintiff decided that the Severance Agreement was unacceptable. (Id.) Accordingly, on January 17, Plaintiff left Fassett a voice message stating that she was unwilling to sign the Severance Agreement, and that she was interested in negotiating a different severance package. (Id. at 177.)

  Plaintiff was out of the office from January 18 through January 26, 2003 because of a pre-approved vacation. (Pl. Rule 56.1 Statement ¶ 106.) On January 27, the date Plaintiff was scheduled to return to work, Fassett left Plaintiff a voice message instructing Plaintiff to come into the office immediately in order to sign a PIP. (Geaney 1/14/04 Dep. at 182-83.) Plaintiff did not meet with Fassett on that day because of several previously scheduled business and personal appointments. (Id. at 188.) Plaintiff was out of the office again on January 29. This time, George Bacon, Fassett's supervisor and a CSC Managing Director, called Plaintiff at home to discuss Plaintiff's employment status. Plaintiff repeated to Bacon that the terms of the Severance Agreement were unacceptable, and that she was unwilling to sign a PIP. (Id. at 189-90.)

  By letter dated January 29, 2003, CSC formally terminated Plaintiff's employment. (Cahoon Aff. Exh. L.) The letter, signed by CSC's Human Resources Manager, stated, in relevant part:
This is to advise you that your employment with CSC Consulting, Inc. (CSC) will be terminated effective Friday, January 31, 2003, due to abandonment of your position. You advised CSC management to contact your attorney Bill Smith to discuss your employment status.
Mr. Smith stated to Ward Classen, CSC's Legal Counsel, that you did not accept CSC's offer of a buy-out package, that you would not agree to be placed on a Performance Improvement Plan ("PIP") and that you would not be returning to work. As such, you have been placed in an unapproved/unpaid status of absence without approved leave since Tuesday, January 28th. (Id.) Plaintiff thereafter filed suit.
  Plaintiff vigorously disputes Defendants' claim that she was terminated because of poor sales performance and because she refused to accept either a PIP or the Severance Agreement. Instead, Plaintiff argues that Fassett took adverse employment action against her because she is female.

  C. Legal Analysis

  In an employment discrimination case such as this one, the district court's task at the summary judgment stage is to "determine whether, upon viewing all of the facts and reasonable inferences to be drawn therefrom in the light most favorable to the plaintiff, there exists sufficient evidence to create a genuine issue of material fact as to whether the employer intentionally discriminated against the plaintiff." Hankins v. Temple Univ. Health Sci. Ctr., 829 F.2d 437, 440 (3d Cir. 1987).

  In doing so, the Court must apply the now familiar McDonnell Douglas-Burdine burden-shifting analysis. See Texas Dept. of Comm. Affairs v. Burdine, 450 U.S. 248 (1981); McDonnell-Douglas Corp. v. Green, 411 U.S. 792 (1973); see also Murphy v. Hous. Auth. & Urban Redev. Agency of the City of Atlantic City, 32 F. Supp. 2d 753, 763 (D.N.J. 1999) (noting that the McDonnell Douglas framework "applies to both Title VII and NJLAD claims for employment discrimination").

  First, the plaintiff has the burden of proving by a preponderance of the evidence a prima facie case of discrimination. Burdine, 450 U.S. at 253. Second, if the plaintiff succeeds in proving the prima facie case, then the burden shifts to the defendant to articulate some legitimate nondiscriminatory reason for the adverse employment action. Id. Third, if the defendant carries its burden, the plaintiff then has the opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant are pretextual. ...

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