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Bibby v. Commerce Bancorp

March 17, 2008


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 ...

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