UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
March 17, 2008
SHAWN BIBBY, PLAINTIFF,
COMMERCE BANCORP, INC. AND COMMERCE INSURANCE SERVICES, INC. DEFENDANTS.
The opinion of the court was delivered by: Irenas, Senior District Judge:
Plaintiff, Shawn Bibby, brings this employment discrimination action against Commerce Bancorp, Inc. and its subsidiary, Commerce Insurance Services, Inc. (collectively "Commerce" or "Defendants"). Bibby alleges that Commerce violated 42 U.S.C. § 1981 (Count One) and the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. §§ 10:5-1 to - 49 (Count Two) by failing to hire him and terminating him on account of his race. Bibby further avers that Commerce retaliated against him in violation of the NJLAD (Count Three).*fn1
For the reasons set forth below, the Court will grant Defendants' motion for summary judgment on all counts.
In March 2003, Bibby began his employment with Commerce Bank as a Loan Escrow Analyst. (Defs. 56.1 Stat. ¶¶ 2-3; Bibby Dep. 44:17-23).*fn2 He later applied for the position of Insurance Apprentice in April 2005 within the Personal Lines Division of Commerce Insurance Services ("CIS").*fn3 (Bibby Dep. 68:14-19; Defs. 56.1 Stat. ¶ 4). By letter dated June 24, 2005, Bonnie Wideman, a Senior Human Resources Representative with CIS, offered Bibby a position as an Insurance Apprentice in CIS's Insurance Apprentice Program ("IAP"), which Bibby accepted. (Defs. Ex. 15 at 1). Bibby, along with six other apprentices, began the IAP training on July 11, 2005.*fn4 (Bibby Dep. 94:15-95:24; Defs. Ex. 15 at 1; Compl. ¶ 12). Bibby was the only African American in his IAP class. (Pls. 56.1 Stat. ¶ 7; Rose Dep. 22:16-19).
The purpose of the IAP, which runs approximately six months, is to help individuals with little or no experience in the insurance industry train to become customer service representatives in either the Personal Lines Division or Commercial Lines Division of CIS. (Defs. Ex. 16 at 1). Upon successful completion of the IAP, an apprentice is typically promoted to a customer service representative position; however, there is no guarantee of employment following the six-month training period, as any promotion is based on the apprentice's performance within the program and the availability of positions in his specific division (i.e., the Personal or Commercial Lines Division).*fn5 (Defs. 56.1 Stat. ¶¶ 17-18; Defs. Ex. 16 at 1; Helbling Dep. 32:9-14).
When the IAP was nearing its conclusion, Wideman would request that managers throughout the Personal Lines and Commercial Lines Divisions submit a list of any open positions. (Wideman Dep. 15:22-16:6). Wideman would then aggregate the various available positions and forward the list to Philip Helbling*fn6 and Bernadette Rose,*fn7 members of CIS management responsible for overseeing the IAP, who would then convey the list of open positions to the apprentices. (Id. at 16:13-17).
Bibby's apprenticeship lasted from July 11, 2005 to January 6, 2006. During this time, Bibby and his fellow apprentices each received at least one performance appraisal. In this appraisal, the apprentices received scores ranging from two to four in seven different categories for a total of twenty-eight possible points. These categories included such criteria as attendance and professional demeanor. When comparing the cumulative scores, Bibby scored the second highest among the seven apprentices.*fn8
(Pls. 56.1 Stat. ¶¶ 24-29; Pls. Exs. 12-18).
During the course of Bibby's training at the IAP, conditions in the New Jersey insurance market changed, which resulted in CIS receiving a lower volume of customer service calls than it had received in previous years. (Defs. 56.1 Stat. ¶ 22; Wideman Dep. 14:16-15:6; Helbling Dep. 22:23-23:24). As a consequence of the downward turn in the personal lines sector of the insurance industry and the reduction in call volume, it became evident to CIS management responsible for overseeing the IAP that there would likely be a shortage of available positions in the Personal Lines Division at the conclusion of the apprentice program. (Wideman Dep. 14:16-15:6; Defs. 56.1 Stat. ¶¶ 22-24; Rose Dep. 25:20-27:2). In the fall of 2005, the Personal Lines Division instituted a hiring freeze, and the apprentice class was notified that there may be a lack of available positions when they completed their program. (Defs. 56.1 Stat. ¶ 25; Rose Dep. 25:23-28:24). Because of the shortage of job opportunities in the Personal Lines Division, Rose, Wideman and Helbling reached out to other departments within Commerce to make additional opportunities available to the apprentices. (Defs. 56.1 Stat. ¶ 28; 24:21-26:21). Additionally, as a result of the downturn in the market, Commerce eliminated several positions within the Personal Lines Division in January 2006. (Defs. Ex. 29).
During his apprenticeship, Bibby interviewed with five hiring managers and expressed interest in numerous other Commerce positions. In September 2005, Commerce representatives notified the apprentices of two openings as Employee Benefits Apprentices. Bibby chose not to apply for these positions, and they were filled by other classmates.*fn9 (Bibby Dep. 106:14-107:23).
Bibby also expressed interest in two other positions within Employee Benefits in October 2005: a Benefits Broker Service Representative position ("Benefits Broker") in Cherry Hill and an Insurance Producer - Commercial Lines position ("Insurance Producer"). (Defs. 56.1 Stat. ¶¶ 35-36). In response to Bibby's interest, Wideman informed Bibby that the Insurance Producer position required additional qualifications and that the Benefits Broker position had been filled. (Id.)
In September 2005, Bibby applied for a position as a Major Accounts representative under the supervision of Robert Tanke. Bibby and classmates Brenda Czach and Alfred Kirk applied for this position, but Tanke ultimately selected Kirk, a white male. (Bibby Dep. 111:18-117:3). Bibby testified that Tanke behaved properly during the interview and that he did not have any specific facts or evidence to show that Tanke made his decision based on race. (Id.) However, Bibby believed Tanke preferred a white male to himself.*fn10 (Id.)
Later that fall, Bibby applied for two positions: a position in the VIP-Premier Client Group Section ("VIP-Premier") managed by Catherine Lunn and a position in Policyholder Services under Megan Nobles. (Bibby Dep. 117:23-121:17). Lunn selected Bibby's classmate, Dolores Martinez, who is Latino, for the VIP-Premier position. (Id.; Lunn Dep. 23:16-19). Lunn testified that, although Bibby was qualified for the position, she hired Ms. Martinez because she "felt that Dolores was a better fit for my department from a personality perspective." (Lunn Dep. 23:16-19). Bibby interviewed with Nobles for the Policyholder Services position, although this position was ultimately eliminated. (Bibby Dep. 117:23-121:17). Bibby also applied for a position in Loan Services in December 2005 and interviewed with supervisor Lynn Mertz. (Bibby Dep. 141:22-143:18). Wideman testified that Bibby did not express interest in this position during the interview with Mertz. (Wideman Dep. 42:21-45:14; Defs. Ex. 21).
Later that month, Bibby applied for positions as an Accounts Payable Processor ("Accounts Payable") and Operations Assistant.
(Defs. Ex. 66; Wideman 40:6-42:5). The Accounts Payable position was already closed at the time Bibby submitted his application. (Wideman Dep. 40:6-20). While Wideman was not sure why Bibby was not interviewed for the Operations Assistant position, she testified that the position was filled very shortly after Bibby applied. (Wideman Dep. 40:21-42:5).
Bibby also spoke with supervisor Lawrence Hickman in December 2005 regarding the availability of an overnight position as a Personal Lines Customer Service Representative ("Personal Lines"). According to Hickman, an African American, Bibby said "he would think about" the position, but Bibby failed to contact Hickman to express further interest.
Additionally, in December 2005, Bibby expressed interest in three other positions to Rose and Wideman, although they informed him that he lacked the minimum qualifications for the positions as they were not apprentice openings.*fn11 (Defs. 56.1 Stat. ¶ 64; Defs. Ex. 21). During the course of his conversation with Wideman regarding such positions, Bibby further stated that he would did not want to make the necessary commute for these positions. (Id.)
Bibby states that he made two verbal complaints to Commerce representatives, Tiffany Banks and a Ms. Scarnagle,*fn12 regarding the alleged discriminatory treatment. (Pls. 56.1 Stat. ¶ 58; Ex. 10, Int. #7). Although Bibby made reference to such complaints in his own answers to interrogatories, these complaints are not documented further in the record nor elucidated upon in any of the deposition testimony.
Throughout the duration of Bibby's employment with Commerce, Wideman, Rose and Helbling continued to work with Bibby to find him permanent employment with Commerce. (Defs. 56.1 Stat. ¶¶ 51-61, 65, 69-72). They regularly apprised him of recent job openings and met with him multiple times to discuss his progress and status of obtaining employment. (Id.) Helbling further arranged for Bibby's last day of work to be extended a week in order to facilitate Bibby's job search. (Id.) Commerce representatives informed Bibby on multiple occasions that he would be terminated if he did not obtain a permanent position with Commerce by the end of the IAP. (Id.) As Bibby failed to ever obtain a permanent position, he was terminated the last day of the IAP, January 6, 2006. (Id.)
On January 20, 2006, Bibby filed this action.*fn13 Defendants thereafter filed the present motion for summary judgment.
"[S]ummary judgment is proper 'if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).
In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. Am. Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). "'With respect to an issue on which the non-moving party bears the burden of proof, the burden on the moving party may be discharged by 'showing'-- that is, pointing out to the district court -- that there is an absence of evidence to support the nonmoving party's case.'" Conoshenti v. Public Serv. Elec. & Gas, 364 F.3d 135, 145-46 (3d Cir. 2004) (quoting Celotex). The role of the Court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).
In Counts One and Two of the Complaint, Bibby alleges that he was unlawfully terminated, and concurrently not hired, following the completion of the IAP because of his race in violation of 42 U.S.C. § 1981 ("§ 1981") and the NJLAD.*fn14 The Court will review Bibby's § 1981 claim and NJLAD claim together as they arise out of the same set of events and are analyzed under the same standards.*fn15 See Schurr v. Resorts Int'l Hotel, Inc., 196 F.3d 486, 498-99 (3d Cir. 1999) (analysis of a NJLAD claim generally follows that of a Title VII claim, and the elements of an employment discrimination case under § 1981 are identical to that of a Title VII claim).
Bibby's claims under § 1981 and the NJLAD are governed by the burden-shifting principles set forth by the Supreme Court:
First, the plaintiff has the burden of proving by the preponderance of the evidence a prima facie case of discrimination. Second, if the plaintiff succeeds in proving the prima facie case, the burden shifts to the defendant "to articulate some legitimate, nondiscriminatory reason for the employee's rejection." Third, should the defendant carry this burden, the plaintiff must then have an opportunity to prove by a preponderance of the evidence that the legitimate reasons offered by the defendant were not its true reasons, but were a pretext for discrimination.
Texas Dep't. of Cmty. Affairs v. Burdine, 450 U.S. 248, 252-53 (1981) (citations omitted) (quoting McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).*fn16
To establish a prima facie case of employment discrimination, the plaintiff must show:
(1) that he is a member of a protected class; (2) that he is qualified for the position; (3) that he was either not hired or fired from that position; (4) under circumstances that give rise to an inference of unlawful discrimination such as might occur when the position is filled by a person not of the protected class.
Jones v. Sch. Dist. of Phil., 198 F.3d 403, 410-11 (3d Cir. 1999) (internal quotation marks omitted).
The Court notes at the onset that there were a number of positions that were made available to Bibby during the IAP for which he did not apply.*fn17 Additionally, the Benefits Broker and the Accounts Payable positions were filled prior to Bibby's application. We do not think it relevant to include these positions in our analysis as the Plaintiff could not or chose not to ultimately pursue these positions.
It is uncontested that Bibby, an African American, is a member of a protected class and that he was not hired for any of the positions. (Compl. ¶ 7; Defs. 56.1 Stat. ¶ 74). Because the Policyholder Services position was ultimately eliminated, the Court cannot say that Bibby was not hired for this position under circumstances showing a preference for a non-protected class. With respect to the VIP-Premier position, Bibby does not appear to argue that he was subject to discriminatory treatment, presumably because this position was ultimately filled by a minority; however, the Court holds that Bibby establishes a prima facie case of discrimination with this position because it must consider the facts in a light most favorable to Bibby.
With respect to the five remaining positions -- Major Accounts, VIP-Premier, Loan Services, Operations Assistant Position, and Personal Lines -- we find that Bibby was qualified for these positions and that such positions were not ultimately given to members of Bibby's protected class. The Court therefore holds that Bibby has established a prima facie case of employment discrimination for these five positions. Based on these same facts, the Court also holds that Bibby has established a prima facie case of unlawful termination.
When a plaintiff satisfies his initial burden under McDonnell Douglas, he establishes a rebuttable presumption of discriminatory intent on behalf of the defendant. The burden then shifts to the employer to put forward a "legitimate, nondiscriminatory reason" for the adverse employment action. See McDonnell Douglas, 411 U.S. at 802; see also Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). The employer is not required to persuade the court that the legitimate, nondiscriminatory reason actually motivated its decision, as "[i]t is sufficient if the defendant's evidence raises a genuine issue of material fact as to whether it discriminated against the plaintiff." Burdine, 450 U.S. at 254.
Commerce has put forth substantial evidence to establish why it could not continue to employ Bibby at the conclusion of the IAP. Several Commerce representatives testified regarding the downturn in the insurance market in late 2005 and the hiring freeze imposed at Commerce. Such testimony is further corroborated by the fact that Commerce laid off employees from the Personal Lines division in January 2006, the same month as Bibby's termination. While Bibby was the only apprentice in his program that completed the program and was not ultimately hired by Commerce,*fn18 there is substantial evidence showing that Commerce had legitimate reasons for not selecting Bibby for each position. Further, Bibby failed to pursue a number of the apprentice openings that were ultimately filled by his classmates.
With respect to specific positions, Commerce contends that, based on a consideration of all of the candidates, it determined that Al Kirk was the most qualified for the Major Accounts position. Although Robert Tanke testified that he neither recalled interviewing Bibby nor maintained records documenting the interview, there is evidence in the record showing that Mr. Kirk completed the IAP and received favorable remarks on his Apprentice Performance Appraisal.*fn19 Likewise, regarding the VIP- Premier position, we find that Catherine Lunn articulated a legitimate reason for hiring Dolores Martinez over Bibby as she perceived Martinez as a better fit for her department.*fn20
With respect to the Loan Services position, Mertz believed that Bibby did not express interest in the position during the interview. Similarly, Hickman testified that, in response to Hickman's request that Bibby contact him if he wanted to pursue the Personal Lines position, Bibby never responded. Finally, Wideman testified that the Operations Assistant position was filled shortly after Bibby applied for this position and that, therefore, they likely already had a candidate selected.
As the Defendants have put forth legitimate, non-discriminatory reasons for not placing Bibby in another position following the conclusion of the apprenticeship program, the burden shifts back to Plaintiff to show that such reasons are pretextual.
A plaintiff in a disparate treatment case may avoid summary judgment by adducing evidence that:
1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action.
Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). Thus, "the plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons . . . was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, the proffered reason is a pretext)." Id.
Here, Bibby has failed to put forth any evidence that would cast doubt on the validity of the reasons proffered by Defendants. In support of his argument that the Defendants' reasons are pretextual, Bibby repeatedly emphasizes that he obtained the second-highest score of his apprentice class. Although it is unclear how much weight the apprentice appraisal scores are even given when making employment determinations, four of Bibby's classmates (out of a class of seven) scored within one point of Bibby.*fn21 Given the similarity of the scores, the Court does not find Bibby's argument persuasive.
In support of Bibby's pretext argument, he further points to the fact that he was the only African American in the program and that he was the only apprentice not to obtain employment at the completion of the IAP. While the Court recognizes that these facts alone may seem suspicious, Bibby has failed to set forth evidence that would cast doubt on each of the legitimate reasons set out by the Defendants in support of their hiring decisions. Further, there is simply no evidence that racial animus motivated any of the Defendants' hiring decisions or that there is a pattern or practice of discrimination on the part of the Defendants. On the contrary, the Court finds that Commerce representatives repeatedly attempted to help Bibby secure permanent employment with Commerce.
The Court therefore grants Defendants' motion for summary judgment on Counts One and Two of Bibby's Complaint.
Count Three of Bibby's Complaint alleges retaliation in violation of the NJLAD.*fn22 In alleging a cause of action for discriminatory retaliation, a plaintiff must demonstrate that: (1) he engaged in a protected activity known to the employer; (2) thereafter the employer unlawfully retaliated against him; and (3) his participation in the protected activity caused the retaliation. Craig v. Suburban Cablevision, Inc., 140 N.J. 623, 629-30 (1995); Young v. Hobart Group, 385 N.J. Super. 448, 465 (App. Div. 2005). The New Jersey Supreme Court has further stated, "[t]he central element of a retaliatory discharge claim under [NJLAD] is that the plaintiff be 'engaged in a protected activity, which is known to the alleged retaliator.'" Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 560 (1990)(quoting Velantzas v. Colgate-Palmolive Co., 109 N.J. 189, 193 n.1 (1988)).
As evidence that he engaged in a protected activity, Bibby alleges that he complained of racial discrimination to Tiffany Banks, a Commerce Bank Compliance Manager, and Ms. Scarnagle in December of 2005. (Pl. 56.1 Stat. ¶ 58; Defs. Ex. 4 ¶ 7).
With the exception of Bibby's own responses to interrogatories, there is no evidence in the record to substantiate Bibby's claim that he made such complaints to Commerce representatives.*fn23 Bibby's Complaint does not include an allegation that Bibby engaged in any form of protected activity, that Defendants had knowledge of Bibby's involvement in a protected activity, or that Commerce retaliated against Bibby as a result of Bibby's involvement in a protected activity. (See Compl. ¶ 27).
Likewise, Bibby offers no evidence that any of the IAP coordinators responsible for terminating Bibby or making the hiring decisions knew of his complaints to Banks and Scarnagle. Bibby had the opportunity to depose Rose, Helbling, and Wideman, and at no point during their depositions did they ever testify as to their knowledge of Bibby's alleged complaints. Instead, Bibby argues that Rose, Helbling and Wideman should have known because Banks would have typically conveyed such information to Wideman as a matter of protocol.*fn24 With such speculative evidence regarding Wideman's knowledge of the complaint, we cannot conclude that she was aware of the alleged complaint or that her awareness of the complaint caused the ultimate decision to terminate Bibby.*fn25 Based on the dearth of evidence Bibby has offered in support of his retaliation claim, the Court will grant Defendants' motion for summary judgment as to Count Three of the Complaint.
For the reasons set forth above, Defendants' motion for summary judgment on all counts of Plaintiff's Complaint will be granted. The Court will issue an appropriate Order.
JOSEPH E. IRENAS, S.U.S.D.J.