April 16, 2008
KWOK TAM, PH.D., PLAINTIFF-APPELLANT,
SIEMENS CORPORATE RESEARCH, INC., A DELAWARE CORPORATION; AND SIEMENS, A.G., A FOREIGN CORPORATION OF THE FEDERAL REPUBLIC OF GERMANY, DEFENDANTS-RESPONDENTS.
On appeal from Superior Court of New Jersey, Law Division, Mercer County, Docket No. L-0072-05.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted March 4, 2008
Before Judges Skillman, Winkelstein and Yannotti.
Defendant Siemens, A.G., is a large German corporation with hundreds of subsidiaries. One of those subsidiaries is defendant Siemens Corporate Research (SCR), which performs medical technology research work in Princeton for other Siemens subsidiaries.
Plaintiff is a research scientist who earned his Ph.D. in physics in 1980. For the next fifteen years, plaintiff worked for General Electric (GE) in the field of medical imaging. During his last six years at GE, plaintiff focused on exact cone beam reconstruction, a procedure designed to improve CAT scans through use of three-dimensional imaging.
In 1994, plaintiff responded to a Siemens newspaper job advertisement, and as a result, Siemens recruited him to leave GE and work on exact cone beam technology for Siemens. Plaintiff was initially employed by a Siemens subsidiary called Siemens Medical Systems but was transferred to SCR in 1996, where he supervised SCR's exact cone beam reconstruction research. This work was funded by contracts SCR entered into with Siemens Medical Solutions Computer Tomography (Siemens Med CT), a Siemens German subsidiary.
In 1998, Siemens Med CT, another Siemens German subsidiary, decided to decrease funding for plaintiff's support staff at SCR and instead assign plaintiff support staff from another subsidiary, Siemens Medical Solutions General Technology (Med GT). A young Siemens Med GT scientist, Guenter Lauritsch, was assigned to the exact cone beam reconstruction project with plaintiff. Lauritsch had no previous cone beam reconstruction experience. Plaintiff taught Lauritsch about the technique, and Lauritsch began working on its implementation. Lauritsch worked primarily to develop computer software applications for plaintiff's theoretical algorithms.
In 2000, plaintiff became aware that the Siemens subsidiaries funding exact cone beam reconstruction "were becoming concerned about whether they wanted to move forward with that technology." Plaintiff's 2000 performance review noted that "without a practical road map, the future of [the exact cone beam reconstruction project] will not be very bright." In addition, the review stated that "[d]ue to the changing needs from CT and SCR, it is worthwhile to explore other projects where [plaintiff] can be an effective team leader. This needs to be determined as early as possible." Finally, plaintiff's 2000 review classified him as an "effective contributor," and not a "strong contributor" as in previous reviews. He also received a smaller raise and bonus than in previous years. Plaintiff attributed the lowering of his rating and bonus to the "funding situation."
In 2001, plaintiff began assisting with an ongoing "AX scanner" project, which involved proximate cone beam reconstruction -- a different form of medical imaging research work than the exact cone beam method with which plaintiff had been engaged previously. From mid-2001 through 2002, plaintiff devoted between 80 and 90 percent of his time to the AX scanner project. In his remaining time, plaintiff continued to work with Siemens Med GT on the development of the exact cone beam technology.
While plaintiff's focus was shifted to the AX scanner, Lauritsch assumed control of the exact cone beam reconstruction project. Lauritsch's immediate goal was to establish a relationship with a Dr. Katsevich, a university professor who had developed a new approach to exact cone beam reconstruction. Siemens paid Katsevich as an outside consultant to demonstrate his technology in its German offices for three months starting in May 2002. Lauritsch stated that while Katsevich's algorithm marked an advancement in practical implementation of the technique, the "product people" nevertheless expressed a decreasing interest in exact cone beam technology. Notwithstanding its decreased lack of interest in this technology, Siemens contracted with Katsevich through the end of 2002 for work with his algorithm.
On November 19, 2002, plaintiff received what proved to be his final evaluation at SCR. The document stated that Med CT had decided to cut funding to SCR for plaintiff's exact cone beam reconstruction project, which apparently had not led to a usable imaging product. The evaluation noted that another Siemen's subsidiary, Siemens Med AX, had expressed interest in the exact cone beam technology and that plaintiff should market the technology to that division. The evaluation concluded that if plaintiff could not obtain funding for the exact cone beam technology, he would have to identify a new project that "meets the interest of both him and Siemens." Plaintiff's 2002 evaluation included ratings of "needs improvement" in the areas of "customer focus" and "teamwork skills." Plaintiff had never before received ratings below satisfactory in these areas. Plaintiff reasoned that the ratings were related to the "funding situation."
SCR did not receive funding from Med AX for the exact cone beam technology. Plaintiff did not find additional work at Siemens in the month following his evaluation and was informed in December that he would be terminated, effective January 31, 2003. The termination letter stated that "due to the current situation whereby Siemens has decided not to pursue further research in your area of expertise, you will be laid off from your present position with Siemens Corporate Research[.]"
Following plaintiff's termination, Katsevich returned to Germany in 2003 and spent an additional month working with Siemens on his algorithm. Katsevich returned in 2004 for another month to work on an alternative trajectory for exact cone beam reconstruction using his algorithm. Throughout Siemens' collaboration with Katsevich, Lauritsch supervised graduate student interns who worked on computer implementation of Katsevich's algorithms. Lauritsch also engaged in "monitoring [of] the literature" regarding the exact cone beam approach.
Following his termination, plaintiff brought this action against Siemen's A.G. and SCR, claiming that he had been terminated because of his age and national origin, in violation of the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42. Plaintiff was fifty-two at the time of his termination and was born in China. Plaintiff never made service of process upon Siemens, A.G.
After completion of discovery, SCR moved for summary judgment dismissing plaintiff's complaint. Following extensive oral argument, the trial court granted the motion. Plaintiff appeals.
Initially, we note that plaintiff did not present any evidence in support of his national origin discrimination claim. Moreover, his appellate brief includes only a two-sentence conclusionary argument in support of this claim, which simply notes that the person who allegedly replaced him, Dr. Lauritsch, is a German national. This is obviously an inadequate foundation, by itself, to support a national origin discrimination claim. Therefore, we consider this claim to have been abandoned.
In an employment discrimination case involving a discharge, New Jersey courts apply the standard established by the Supreme Court in McDonnell Douglas v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 668 (1973), as modified by Clowes v. Terminix International, Inc., 109 N.J. 575 (1988). A plaintiff must first make a prima facie case, presenting evidence: " that he was in the protected . . . group,  that he was performing his job at a level that met his employer's legitimate expectations,  that he nevertheless was fired, and  that [the employer] sought someone to perform the same work after he left." Clowes, supra, 109 N.J. at 597 (quoting Loeb v. Textron, Inc., 600 F.2d 1003, 1014 (1st Cir. 1979)). Once the plaintiff establishes a prima facie case, the burden of production shifts to the employer to "articulate a legitimate, nondiscriminatory reason for the employer's action." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 449 (2005). If the employer presents such a reason, the burden shifts back to the employee to "prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision." Ibid.
We conclude that the evidence plaintiff presented in opposition to SCR's motion for summary judgment did not satisfy the fourth-prong of a prima facie case of age discrimination. It is undisputed that SCR's funding for exact cone beam research was eliminated before plaintiff was terminated and that SCR did not conduct or undertake to conduct any research in this field after plaintiff's termination. In fact, the Siemens subsidiaries funding exact cone beam reconstruction research began expressing doubts about the value of this research a number of years before plaintiff's termination. Moreover, during the last two years of his employment by SCR, plaintiff spent the majority of his time working in the area of proximate cone beam reconstruction. However, plaintiff's expertise and experience was in the field of exact cone beam reconstruction technology, and SCR's funding for plaintiff's proximate cone beam research was also eliminated before his termination. As a result, SCR did not replace or seek to replace plaintiff in his area of research. Moreover, plaintiff did not present any evidence that his age made a significant difference in how he was treated by his employer.
Even if SCR's separate corporate identity is disregarded, plaintiff did not present evidence that any other Siemens subsidiary hired or attempted to hire someone to perform the work plaintiff had previously performed. Plaintiff argues that he was "replaced" by Dr. Lauritsch. However, Dr. Lauritsch was not only employed by a different Siemens subsidiary, but the scope of his responsibilities was significantly different than plaintiff's. Plaintiff's primary role with SCR was to provide algorithms for development of exact cone beam reproduction. He supervised only those employees whose job was to develop computer applications for the algorithms. By contrast, even after Lauritsch took the lead on the exact cone beam reproduction project in 2002, he never produced algorithms. Lauritsch's work on exact cone beam reproduction remained far more managerial and supervisory. He maintained an awareness of relevant developments in order to establish partnerships, such as those with Katsevich and the University of Utah, and he co-published and presented the results of these collaborations. However, plaintiff presented no evidence that Lauritsch ever performed the theoretical work behind the development of exact cone beam reproduction technologies that he had performed.
Nor is there any basis for finding that plaintiff was "replaced" by Professor Katsevich, the academic with whom Siemens contracted to provide algorithms to Med GT. Although Katsevich's work with algorithms appears similar in function to the work done by plaintiff, Katsevich's role at Siemens was that of a part-time consultant. In addition, Katsevich presented new methods for exact cone beam reproduction.
Even if plaintiff had presented a prima facie case of age discrimination, plaintiff failed to present evidence that would support a finding that the reason SCR gave for plaintiff's termination -- the termination of its funding for cone beam reconstruction work -- was pretextual. In fact, the termination of that funding was undisputed. Furthermore, plaintiff's supervisors had made clear to him before his termination that the funding situation for his project was tenuous and that he might lose his job as a result.
Moreover, even though another Siemens subsidiary, Siemens Med GT, continued to perform exact cone beam reconstruction research work after plaintiff's termination, this work was not the same kind of work plaintiff had performed and this subsidiary did not use Siemens' employees to perform the theoretical work. Instead, Siemens Medical Solutions retained Dr. Katsevich, who had developed a new approach to exact cone beam reconstruction, as an outside consultant, and also had research work performed by graduate student interns.
In support of his pretext claim, plaintiff relied heavily on a part of a document produced in discovery by another former SCR employee who also brought an age discrimination action against SCR, which stated in part:
Currently, the average age of SCR's technical employees is about 36 years, approximately the same as the average at ZFE. However, in contrast to ZFE, SCR faces an increasing average age level. This is because SCR cannot expect to follow the ZFE practice of regularly turning over a considerable share of its staff via transfer projects while replacing them with younger employees. . . .
Hiring new employees is a good way to keep the technical staff permanently on an acceptable level with regard to its age structure. Considering the current budgetary conditions though, additional employees can only be hired when new positions are created through direct project funding. In other words, new positions from direct projects are not only essential for SCR's growth but also for improving its age structure.
This document was dated March 1990, twelve years before plaintiff's termination, and no current SCR employee testified to ever having seen the document. More importantly, the former employee who produced the document had no recollection of how she had obtained the document or where it was located. Therefore, the document was not properly authenticated.
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