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Vichare v. Prudential Financial

November 21, 2007

PRABHAKAR K. VICHARE, PLAINTIFF-APPELLANT,
v.
PRUDENTIAL FINANCIAL, INC., THE PRUDENTIAL INSURANCE COMPANY OF AMERICA, AND PRISCILLA MYERS AND WILLIAM FRIEL, INDIVIDUALLY, DEFENDANTS-RESPONDENTS,



On appeal from the Superior Court of New Jersey, Law Division, Essex County, Docket No. L-5007-03.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued October 3, 2007

Before Judges Wefing, Parker and Lyons.

Plaintiff Prabhakar K. Vichare appeals from an interlocutory discovery order entered on November 17, 2005; an order entered on December 2, 2005 granting summary judgment in favor of defendants dismissing the complaint in its entirety; and an order entered on February 3, 2006 denying plaintiff's motion for reconsideration. We affirm.

The following is a summary of the facts giving rise to this claim for violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Plaintiff is a United States citizen of Indian origin. In 1996, he was hired by Prudential Insurance Company of America (Prudential) as a Vice-President of the Operations & Systems Unit (O&S). Plaintiff alleged that he was demoted, denied promotions and eventually terminated in 2002 on the basis of three types of discrimination: retaliation for filing a discrimination action against a prior employer; discrimination based on the interrelated factors of race, national origin, ancestry and color; and discrimination based on disability (heart condition).

Plaintiff brought the action against Prudential, Priscilla Myers and William Friel, both senior executives with Prudential (collectively defendants), alleging violations of the LAD, intentional infliction of emotional distress, and various contractual and quasi-contractual violations.

Plaintiff claims that he was initially hired as a departmental vice-president (DVP), a higher level than an O&S vice-president, which is a functional vice-president (FVP) position. He acknowledged, however, that his written offer of employment listed his position as vice-president of O&S and that he never received any written documentation indicating that he was to be hired as a DVP.

Two weeks after he was hired, plaintiff was transferred from O&S to the Audit, Compliance and Investigations Division (ACI), where he was supervised by defendant Priscilla Myers. Myers was familiar with plaintiff because she had interviewed him and made the final decision to hire him. The transfer did not affect plaintiff's job level or salary. Plaintiff claimed that on June 13, six months after he was hired, he learned for the first time that he was "demoted" from a DVP position. He assumed that the "demotion" was based in part on his national origin, although he acknowledged that he had no basis for that assumption, nor were there any statements or documents to corroborate it. Moreover, all of the documentation relating to plaintiff's hiring indicated that he was hired as an FVP and that his salary and bonuses were consistent with that of an FVP.

In March 1998, Myers advised plaintiff that she learned he had "brought a civil rights/discrimination lawsuit against his prior employer, AMBAC." Plaintiff claimed that Myers angrily told him that "Prudential did not tolerate employees asserting their rights in this fashion." Plaintiff alleges that Myers demanded details about the prior lawsuit, which he provided. Thereafter, plaintiff claimed that Myers' "demeanor was so hostile" that he thought he would be fired. He maintained that she told him they were "trying to figure out what we're going to do with [him]."

Myers acknowledged that she was concerned about plaintiff continuing in ACI because of allegations that he had received kickbacks while employed by AMBAC. Those allegations would create a conflict of interest because of ACI's function. Myers decided to transfer plaintiff to another department, explaining that plaintiff had only been scheduled to work in ACI for twelve to eighteen months before moving to O&S.

Defendant William Friel agreed to have plaintiff transferred to his department even though he was informed by Myers and Dennis Kinsig, another Prudential employee, that plaintiff's arrogant management style had caused problems within ACI. Kinsig was also aware that plaintiff had lied on his employment application by stating that he had left AMBAC because of a reorganization, rather than because he had been fired. Nevertheless, Friel believed that plaintiff possessed the necessary skills to fill a leadership position in corporate information technology (CIT), a department within O&S, because the position involved few direct reports, thereby alleviating management style issues.

In March 1998, plaintiff was transferred to CIT as an FVP of information systems. He claimed that the transfer was in retaliation for his employment discrimination suit against AMBAC and because Myers disliked people of Indian national origin. He admitted, however, that he had never heard Myers express any racially insensitive comments and that Myers was more concerned about AMBAC's counterclaim alleging that plaintiff had taken kickbacks. Plaintiff considered the transfer a demotion because he believed that the CIT position had less prestige, responsibility and a lower reporting level. His job level, salary and benefits remained unchanged, however. In fact, plaintiff's salary increased each year as follows:

1997 - $150,000 salary and $30,000 bonus; 1998 - $155,250 salary and $57,275 bonus; 1999 - $164,000 salary and $65,000 bonus; 2000 - $174,000 salary and $70,000 bonus; 2001 - $189,000 salary and $78,000 bonus; 2002 - $189,600 salary and $79,000 bonus, plus $35,000 in stock options.

In the CIT position, plaintiff reported directly to Peter Lacovara, a DVP of information systems. Lacovara reported directly to Friel, who was responsible for all systems, including CIT, corporate technology services (CTS) and PruAmerica, an offshore IT facility. Plaintiff claimed that Friel was "notorious at Prudential for disliking Indians," and the transfer to "a position under Friel's supervision was to further punish [him]." Plaintiff admitted, however, that he never heard Friel or any other Prudential employee make racially offensive remarks. Plaintiff claimed that Friel exhibited racial bias by not meeting with him and avoiding direct contact with him, albeit he acknowledged he did not report to Friel. He alleged that Friel changed procedures so that plaintiff would report to Lacovara rather than to Friel.

In late 1999, Prudential considered outsourcing its software development to a foreign country. Plaintiff believed that India should have been the leading candidate for such outsourcing and claimed, without any supporting evidence, that Friel had "relied on studies that gave factually inaccurate information about India, and deliberately delayed other analyses so as to avoid making a decision to use India." Friel testified in his deposition, however, that Prudential had been "buying services and skills from existing Indian companies for about ten years," and that he had considered outsourcing to India, which he described as a "known quantity." Ultimately, Friel chose Ireland for Prudential's first offshore IT subsidiary and hired Paul Carmody, a DVP, as managing director. Friel selected Carmody from the pool of eligible DVPs because he had been working on overseas activities within Prudential. Friel did not consider plaintiff for the position because plaintiff was not a DVP, had not applied for the job, did not have the requisite overseas experience at Prudential and had not otherwise shown any interest in the position. Plaintiff contends, again without any supporting evidence, that Friel should have chosen him because he "would have been the best candidate to head this facility."

According to plaintiff, in December 2000, Pat Komar, Vice-President of Data Architecture in CIT, told him at the company Christmas party that Friel told her he did not like Indian and Russian accents and that he was tired of riding in company elevators with people speaking foreign languages or speaking English with foreign accents.

In 2002, Friel established a Global Task Force to investigate the use of additional "globally located" consulting firms, including firms in India, and chose Carmody to head the task force. Plaintiff was appointed head of the India Task Force Team. Plaintiff claimed that he traveled to India at his own expense to meet with potential vendors and reported back on the viability of outsourcing to India. Lacovara testified that plaintiff told him that while he was on vacation in India he met with a few consulting firms. Lacovara told plaintiff to write a report to Friel, which he did.

Plaintiff claimed that Bruce Gray, a financial vice-president at CIT, told him that Friel asked him to "find all of the negative reasons" for outsourcing Prudential's IT work to India, that "Friel doesn't want to go to India" and that Friel "will never visit India." Plaintiff claims that Gray asked him to provide reasons for not outsourcing to India, which plaintiff did. Nevertheless, plaintiff admitted that Friel agreed to outsource some of Prudential's software business to India. Moreover, plaintiff did not know whether additional software business was outsourced to India after the Global Task Force made its recommendations.

Plaintiff further claimed that he was denied no fewer than thirty-nine promotional opportunities. In his certification in opposition to defendants' motion for summary judgment, however, plaintiff provided information regarding only two specific positions he claimed were denied him. Without documentary support, plaintiff claimed that he was "short-listed" for the position of CIO of PRUPAC but that "Friel complained about the fact that [he] was even being considered for the PRUPAC CIO." Plaintiff attested that an August 26, 2001 e-mail from Friel to Robert Golden was the "'smoking gun' evidence of Friel's animus toward [him]." The only statement in the e-mail referring to plaintiff, however, was Friel's comment that the inclusion of plaintiff's name in a list of candidates for the position "was really out of left field." That position was ultimately awarded to a Caucasian male DVP, whom plaintiff claimed was less qualified than he. Friel testified, however, that he chose the other individual because he had successfully completed "the most pressure-filled" assignment in IT and was more qualified than plaintiff.

In 2001, plaintiff complained to David Fitzgerald, a Human Resources officer, that he was "qualified" for the CIO position but had not been selected, had been demoted from a DVP to an FVP and was unfairly treated during his employment. Fitzgerald investigated plaintiff's complaint and told him that he had been hired as an FVP, not a DVP, and that the other candidate had been selected for the CIO position because of his prior successful performance.

In January 2002, plaintiff applied for a CIO position in Prudential's E-Commerce Development Group (EDG). Plaintiff claimed he was well-qualified for the position with thirty years experience, while the individual hired, a Caucasian male DVP, had only twenty years experience. The evidence indicated, however, that the other individual's technical skills and qualifications surpassed plaintiff's, albeit he had fewer years in service than plaintiff.

In opposition to defendants' summary judgment motion, plaintiff submitted a chart prepared by his counsel listing thirty-nine positions he claims he was denied. He did not, however, provide any other information as to whether he was qualified for any of these positions. Nevertheless, he contends that "the vast majority of these lost promotional opportunities involved positions" which, contrary to Prudential's policy, were never posted and were instead "simply 'given' to the selected candidate by Friel without open application process." Again, he provided no evidence to support his claim.

In July 2002, plaintiff had an angiogram during a routine physical, which revealed that he had previously suffered a mild heart attack. He subsequently underwent angioplasty. He claimed that he was more tired because of a change in his diet, but experienced no other heart-related symptoms, nor was his work affected.

In late 2002, Prudential underwent a large scale reorganization due to financial constraints and, as a result, CIT, PruAmerica, CTS and other departments under Friel's control, were required to reduce their budgets by downsizing. Prudential's practice was to terminate an individual who held a position that was eliminated. PruAmerica eliminated one position held by a Caucasian; CTS eliminated seventy-two positions, fifty-one of which were held by Caucasians, four by Asians, fourteen by African-Americans and three by Hispanics. Of the four, FVP positions in CIT, plaintiff's was eliminated because it "was more expendable than the positions of the other [FVPs]." The remaining limited responsibilities of plaintiff's job were assumed by another individual of Indian national origin. According to plaintiff's answers to interrogatories, Lacovara made the decision to eliminate his position and suggested that he talk with David Fitzgerald because he would be terminated.

In his October 24, 2005 certification in opposition to defendants' summary judgment motion, however, plaintiff claimed that Friel, not Lacovara, made the decision to eliminate his position. In that certification, plaintiff claimed for the first time that

Lacovara was very, very upset when he told me of my termination, as if he regretted that it was me who had to be terminated as opposed to someone else; in other words, as if it was not his decision to fire me. As it turned out, he then informed me that he had tried to convince Friel to downsize Carmody instead of me - thus acknowledging that it was really Friel who had the final say in my termination. Lacovara had told Friel that . . . it would have made more sense to terminate Carmody, and to have me assume Carmody's responsibilities in addition to my own, as the cost-savings measure. This admission by Lacovara certainly undercuts Prudential's claim that terminating me was the most appropriate cost-cutting measure.

It is notable that plaintiff did not include this allegation in his answers to interrogatories or in his narration to his psychiatric expert. In fact, plaintiff's psychiatric expert wrote in a report dated December 22, 2004 that plaintiff told him Lacovara had decided to eliminate plaintiff's position and Fitzgerald confirmed that "Lacovara had made [the] termination decision." Moreover, Carmody headed the Global Task Force and did not report to Lacovara, so his position was not in competition with plaintiff's for elimination.

After considering the summary judgment motions, the trial judge made detailed findings of fact and conclusions of law as to each of plaintiff's claims. The court noted that plaintiff's "allegations are heavily influenced by perception, by surmise, by speculation . . . on the conduct of the employer without sufficient evidentiary support to raise a ...


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