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DeWees v. RCN Corp.

July 15, 2005

MARIE DEWEES, PLAINTIFF-APPELLANT, AND PAMELA PERNOT,*FN1 PLAINTIFF,
v.
RCN CORPORATION, DAVID MCCOURT, MICHAEL MAHONEY, AND KENNETH KNUDSEN, DEFENDANTS-RESPONDENTS.



On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No, L-175-00.

The opinion of the court was delivered by: Fuentes, J.A.D.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

APPROVED FOR PUBLICATION

Argued April 19, 2005

Before Judges Kestin, Alley and Fuentes.

Plaintiff Marie DeWees appeals from the dismissal of her cause of action alleging gender and age discrimination in violation of our State's Law Against Discrimination. N.J.S.A. N.J.S.A. 10:5-12(a). The Law Division granted defendants' summary judgment motion, concluding that plaintiff had not produced sufficient evidence to show that defendants' proffered business reasons for her termination (poor performance and a personality conflict with her superior) were pretextual.

In this appeal, plaintiff argues that the motion judge erred when he applied an incorrect standard on summary judgment, weighing the evidence rather than giving her the benefit of the proffered evidence and its reasonable inferences. After reviewing the record and considering the applicable law, we agree with plaintiff and reverse.

I.

Plaintiff was fifty years old at the time she was terminated from her position as RCN's senior vice president of customer service in 1998, after approximately eight years of service. She was the top-ranking woman in the company at the time of her termination.

Defendant Michael Mahoney was, at all times relevant to the issues raised here, president of RCN Corporation, a provider of cable and long-distance telephone service. Defendant David McCourt was RCN's Chief Executive Officer. Kenneth Knudsen, another RCN executive, was originally named as a defendant. Plaintiff did not pursue her claims against him.

Plaintiff started working for C-Tec, RCN's predecessor, in May 1990 as manager of marketing and ad sales, earning $42,055 per year. After several promotions and salary increases, she became director of development in February 1995, earning $77,500; vice president of marketing in August 1995, earning $97,500; and senior vice president of customer sales in February 1997, earning $125,000. She was the only woman vice president in the company.

A. Evidence of Pattern of Discriminatory Treatment

In 1996, plaintiff complained that her salary was lower than it should have been in 1995 and 1996. In response, she was told that she would be "taken care of" at bonus time. Although she received a substantial bonus in 1996, she claimed that it was completely due to her work in a "special project," and thus unrelated to any attempt at income parity. RCN president Mark Haverkate, her supervisor until 1995, noted that in 1996 her salary was the lowest in her "band."

According to plaintiff, McCourt told her that Mahoney wanted to reduce the extraordinary bonus that she received in 1996 for her work on a special project, but did not want to reduce similar bonuses received by two male executives. In his deposition, Mahoney denied having any problems with plaintiff's 1996 bonus.

Plaintiff testified that McCourt commented, upon introducing her to someone, that she had "balls." She took this vulgarity to mean that she was tough. She further indicated that other people had used this term to describe her before, but she was "a little shocked" and "taken aback" that the CEO would introduce her this way. According to plaintiff, this remark was indicative of a male-centric "atmosphere," where "[y]ou had to be one of the guys to make it at RCN. And I was not."

Plaintiff described Mahoney's attitude toward women as "[e]litist" and "dismissive." She characterized Mahoney's demeanor as "bothered" by her "challenges" to some of the things that he did. He also would ignore her at meetings and "looked through you like you weren't there."

Plaintiff described an incident in which she met Mahoney on the stairs and asked him how he was; he answered that he was "really stressed." When she asked, "Is there anything I can do to help," Mahoney replied, "I guess you can just quit." In a subsequent deposition, plaintiff changed this testimony to indicate that Mahoney said that "he guessed that he could always quit." She added, however, that she took this comment as "an innuendo to mean that I could quit. He had no intention of quitting." Plaintiff explained that she interpreted Mahoney's remark this way because "[t]hey were making my job really difficult," and there were rumors that her superiors were trying to force her to resign.

In late 1996, plaintiff testified that she was talking with Lorraine Reddington (RCN's controller), when Mahoney "snickered" and said: "Well, imagine the two of you talking about technical issues." According to plaintiff, this remark revealed Mahoney's sexist attitudes toward women, in that "technical issues" are beyond the understanding of women.

When Mahoney became president of RCN in June or July of 1997, McCourt decided to remove both plaintiff and Haverkate from marketing and sales. He made this decision because "subscriber gains, access lines gains and numbers that were being achieved were not in line with the plan and were not in line with the growth rate that he had expected from them." Mahoney testified that he did not want plaintiff to remain in operations because her experience was in marketing and sales, and "we had a tremendous problem at RCN with provisioning customers, getting customers that had signed up for sales on to her network as billable customers." McCourt directed Mahoney to take over operations, and agreed with Mahoney's suggestion to hire someone new to assist.

McCourt accepted Mahoney's suggestion to move plaintiff to customer service. Mahoney explained that "customer service was a problem big enough that McCourt was getting multiple letters a day complaining." Mahoney removed John Gdovin, who was thirty-five years old, from customer service in October 1997, but Gdovin "kept the programming responsibilities that he always had and also assumed responsibility for Cable Michigan," a part of C-Tec. According to Haverkate, McCourt chose plaintiff as "the best person in the company" to manage customer service. She had taken over management of the New York office and turned it around "from horrible to pretty good."

Haverkate described McCourt's management style as involving "a lot of mix-up and changes going on all the time." He said that McCourt managed the company almost like a soccer team, and he . . . expected that people would play whatever roles or positions that he thought was the best lineup at any given period of time.

And . . . he had a tendency to elevate people to a higher status than maybe they deserved at the time . . . . And then time would go by and . . . they would make a mistake or they fumbled the ball . . . and they would go, boom, right down to the bottom and would be . . . in the doghouse. But that happened to everybody. It was a continual thing and people adapted to it . . . . But the reality was that you had to play on the team . . . .

When people were in the doghouse they didn't get too depressed about it because you work hard and times will ...


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