On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-5100-01.
The opinion of the court was delivered by: Hoens, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE COMMITTEE ON OPINIONS
Before Judges A. A. Rodríguez, Weissbard and Hoens.
Plaintiff Lois Myers appeals from the November 7, 2003 order of the Law Division granting summary judgment in favor of defendant AT&T and dismissing her discrimination complaint in its entirety. We reverse and remand.
This appeal raises novel issues concerning the meaning and interpretation of recent United States Supreme Court guidance in mixed motive discrimination cases, see Desert Palace, Inc. v. Costa, 539 U.S. 90, 123 S.Ct. 2148, 156 L.Ed. 2d 84 (2003), and concerning the appropriate application of the traditional burden-shifting analysis, see McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973), in the context of motions for summary judgment in discrimination cases. The importance of these issues requires that we address the facts and the motion judge's analysis at some length.
Plaintiff began working for defendant in 1983. In February 1998, she was diagnosed with ovarian cancer and was on paid leave from her job as a global marketing staff manager until November 1998. At that point, she returned to her previous position, having been advised that her cancer was in full remission. In the summer of 1999, she was a B-band manager in defendant's Consumer Services High Value Clients Organization (the Organization), working in Morristown. There were two other B-band managers in the Organization, Greg Kirby and Marissa Cozzolino.
Although plaintiff and Kirby were both B-band managers within the Organization, they were not performing identical job assignments. Plaintiff was responsible for "marketing strategy, marketing tactics, interfacing with the marketing communications team to develop the direct marketing plan," working with the sales support group and working with the market research group to ensure that defendant was addressing the needs of its high-value customers. The focus of her job was marketing communications and, more specifically, working with groups outside the Organization to develop direct mail pieces. Kirby's job entailed tracking and reporting customer usage. Kirby testified that his job involved working with the "CIO group" to assemble customer lists so that high-value customers could be targeted with marketing materials.
In November or December 1999, plaintiff asked for a salary review. In response to that request, Gary Hilbert, the Director and Vice President of the Organization, consulted with human resources personnel. After that consultation, Hilbert told plaintiff that salary reviews were conducted during annual performance reviews, with actual adjustments to salary taking effect during the following March. As a result, plaintiff agreed to wait until her performance review was completed and to address her salary request in that forum.
As a part of the appraisal process, each employee was required to complete a self-evaluation. The performance appraisal policy in place at the time called for the evaluation of employees in accordance with their business attainment and their demonstration of leadership skills. As to the former, the employees were rated against a scale ranging from "significantly below target" to "below target" to "on target" to "above target." The last of these, "above target," was the highest ranking possible for business attainment. With respect to leadership skills, the scale ranged from "needs development" to "skilled" to "accomplished" to "role model." Again, the last of these was the highest possible ranking for leadership skills. Each combination of the rankings for business attainment and leadership competency was given a code to identify it. The highest combined ranking, namely "role model" and "above target," was identified by the 1R code.
In December 1999, the Organization conducted its performance appraisals for that year. Plaintiff completed her self-appraisal and gave herself the highest combined ranking by checking off the appropriate boxes on the appraisal form and by including narrative comments to support her self-evaluation.
Her fellow B-band manager, Greg Kirby, also rated himself with the highest combined ranking.
In general, the performance appraisal process would continue after the self-appraisals had been completed. Each employee would submit the completed form to his or her direct supervisor and the self-appraisals would be utilized in a round table meeting during which the appraisal process would be completed. The round table meeting included each of the relevant supervisors and a group leader. Each of these individuals would provide his or her own input into the appraisal based on individual interactions with each employee and an evaluation of each employee's work product. In general, after the members of the round table reached a consensus, the final performance appraisal was submitted for the approval of the group leader.
In 1999 and 2000, overall performance ratings were also subject to the forced ratings distribution directive. This directive placed a limit on the percentage or number of employees who could receive the highest ranking within any group. Plaintiff was aware that her appraisal could be changed during the evaluation process from the one that she had submitted. It was not uncommon for the performance appraisals to be changed in the group discussion at the round table from the self-evaluations submitted by the employees. This was particularly true because the forced ratings distribution directive limited the number of top-ranked ratings that could be awarded.
The participants at the 1999 round table meeting for supervisors of the B-band managers were Hilbert, Dana Joachim, who was the direct supervisor for both plaintiff and Kirby, and Steve Pardonner, who was Cozzolino's direct supervisor. Joachim and Pardonner were C-band and D-band managers, respectively, each of which is a higher level of manager than the B-band managers. Hilbert was the head of the Organization and the supervisor for both Joachim and Pardonner.
At the time of the 1999 round table meeting, there were rumors about the possibility that there would be cutbacks or layoffs in the Organization. Plaintiff asserts that Hilbert knew that a reduction in force (RIF)*fn1 was coming and that the 1999 performance appraisals were going to be used as a part of that process. Hilbert, whose testimony is inconsistent in this aspect, testified that he knew that the RIF was coming and that the appraisals would be used in that context. In addition, however, he admitted that he was also aware that the entire Organization was going to be eliminated during the RIF. Notwithstanding those ...