September 22, 2008
JUDITH BISPO, PLAINTIFF-APPELLANT,
MCKESSON INFORMATION SOLUTIONS CORPORATION, DOUG SCOTT AND DEREK PICKELL, DEFENDANTS-RESPONDENTS.
On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, Docket No. L-10598-02.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 8, 2008
Before Judges Lisa, Reisner and Alvarez.
Appellant, Judith Bispo, brought this action against her former employer, McKesson Information Solutions Corporation (McKesson) and two of her former co-employees. She alleged adverse employment action based upon pregnancy discrimination. She made claims for hostile workplace harassment, discriminatory discharge, breach of contract, common law retaliation, and negligence. On April 16, 2004, the trial court granted summary judgment in favor of defendants dismissing plaintiff's complaint in its entirety.
Plaintiff appealed. In an unpublished opinion, we reversed the dismissal of plaintiff's discriminatory discharge claim on the basis that discovery had not been completed, and we remanded to allow further discovery and further appropriate proceedings; we affirmed the dismissal of plaintiff's other claims. Bispo v. McKesson Inform. Solutions Corp., No. A-5007-03T3 (App. Div. September 29, 2005).
In our prior opinion, we concluded that under the framework articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed. 2d 688 (1973), which has been adopted in New Jersey to prove disparate treatment under the New Jersey Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -42, Viscik v. Fowler Equip. Co., 173 N.J. 1, 13-14 (2002), plaintiff established a prima facie case of discrimination and McKesson proffered a legitimate nondiscriminatory reason for plaintiff's termination, namely poor job performance. Bispo, supra, slip op. at 13, 20. We therefore concluded that "the issue comes down to whether or not there is sufficient evidence in the record from which a reasonable factfinder could conclude that the proffered reason for termination was a pretext for discrimination." Id. at 20. We declined to determine on the record as it then existed whether plaintiff "demonstrated the existence of a jury issue with respect to pretext." Id. at 21. We recognized the difficulties encountered by plaintiffs asserting discriminatory discharge claims in gathering proof of discriminatory intent by their employers, and held that plaintiff should be given a full opportunity to adduce evidence through further discovery and investigation that may constitute indirect or direct proof of discriminatory motive. Id. at 22-24.
In the remand proceedings, plaintiff conducted substantial additional discovery, including the depositions of the individually-named defendants Doug Scott and Derek Pickell, and plaintiff's former co-employees Barbara Jarvis and Ray Braeunig. Plaintiff had the opportunity, which she declined, to depose a key representative of the New York University Faculty Practice Group account (NYU Account), the deficient handling of which by plaintiff and other McKesson employees was the asserted basis for plaintiff's termination.
Upon completion of the additional discovery, defendants again moved for summary judgment, seeking dismissal of plaintiff's discriminatory discharge claim. Defendants filed a detailed statement of undisputed material facts, see R. 4:46-2(a), consisting of seventy-eight numbered paragraphs. Each fact was supported by a citation to the motion record. Plaintiff opposed the motion but did not file a responding statement either admitting or disputing the facts asserted in plaintiff's statement. Because all of the material facts in plaintiff's statement were sufficiently supported by the record, and because they were not specifically disputed by citation to the record, they were deemed admitted for purposes of the motion. R. 4:46-2(b).
After hearing oral argument, the trial court issued a written decision on June 18, 2007. The court outlined the undisputed facts consistent with those contained in plaintiff's unopposed statement of undisputed material facts. The court concluded that plaintiff failed to effectively counter defendants' evidence as to plaintiff's substandard performance or establish that the proffered reason for plaintiff's termination was pretextual. The court accordingly granted defendants' motion and entered an order dismissing plaintiff's discriminatory discharge claim. This appeal followed.
Summary judgment must be granted 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 challenged and that the moving party is entitled to a judgment or order as a matter of law." R. 4:46-2(c). The court must decide "whether the competent evidential materials presented, when viewed in the light most favorable to the non-moving party, are sufficient to permit a rational factfinder to resolve the alleged disputed issue in favor of the non-moving party." Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 540 (1995). On appeal, we apply the same standard. Prudential Prop. & Cas. Ins. Co. v. Boylan, 307 N.J. Super. 162, 167 (App. Div. 1998).
The disputed issue here is whether, viewing the evidential materials most favorably to plaintiff, together with all reasonable inferences favoring plaintiff, a rational factfinder could find that defendants' proffered reason for terminating plaintiff (poor job performance) was a pretext for the alleged true reason, intentional discrimination because plaintiff was pregnant. Bergen Commercial Bank v. Sisler, 157 N.J. 188, 211 (1999). The test comes down to whether or not the wrongful motive was a substantial factor in the employer's termination decision. DePalma v. Bldg. Inspection Underwriters, 350 N.J. Super. 195, 214 (App. Div. 2002). Stated differently, the issue is reduced to whether the employer's proffered non-discriminatory reason is unworthy of belief. Bergen Commercial Bank, supra, 157 N.J. at 211.
From our independent review of the record and in consideration of the applicable legal principles, we agree with the trial court's conclusion that plaintiff's discriminatory termination claim could not withstand summary judgment. Accordingly, we affirm the trial court order dismissing the claim. Our affirmance is substantially for the reasons set forth by the trial court in its written decision of June 18, 2007. For the sake of completeness, we set forth below a brief summary of the relevant facts and comment briefly on plaintiff's arguments on appeal.
Plaintiff was hired by McKesson's predecessor in January 1998 as an account manager. She was an at-will employee. Her role was to manage billing and collection services for medical care providers. Her job performance was generally very good and she received favorable evaluations. However, there was one account, the University of Maryland account, which McKesson lost because of allegedly substandard performance by plaintiff and Braeunig.
Pickell is a vice-president and general manager at McKesson, and Scott served as executive director of the NYU Account in the spring of 2002, when McKesson terminated plaintiff's employment. In the fall of 2001, Braeunig was the executive director of the NYU Account. There had been difficulties with the account and client dissatisfaction for a number of months. Plaintiff was asked to help out on the account, and she did so on a part-time basis in the end of 2001. In January 2002, plaintiff became a full-time account manager on the NYU Account. Another manager on the account was Beth Sirna.
In 2001, Pickell had obtained the NYU Account for McKesson. The account was very important to McKesson because of the significant stature of NYU in the medical provider industry.
Plaintiff, who had no other children and was forty-one years old, learned she was pregnant on February 13, 2002. According to plaintiff, sometime shortly after that date, she informed Pickell of her pregnancy. She said he did not respond verbally, but his facial expression exuded annoyance, and from that point forward, Pickell was cold and uncommunicative toward her.
There were several complaints from NYU personnel about the handling of the account by McKesson after plaintiff began serving as an account manager and prior to her learning she was pregnant. Complaints continued, and substantial deficiencies in the manner in which the account was handled were well documented and established. McKesson was in danger of losing the account, and indeed ultimately lost a portion of the account.
We do not find it necessary to detail here specific incidents of substandard performance. Some were attributable directly to plaintiff, such as her non-responsiveness to inquiries from NYU personnel and her submission of an incomplete, incomprehensible, and improperly formatted report. With respect to that report, plaintiff blamed the computer programmer. But it is clear that the report was requested of plaintiff, she had the responsibility to submit it, and she submitted it. Other complaints were not directly attributable to plaintiff, but were attributable to the management team, of which she was one of the managers. For example, some of the mismanagement was attributed more particularly to Sirna. Defendants' statement of undisputed material facts asserts that plaintiff was responsible for supervising Sirna, and that fact is documented by the record, including McKesson's organizational chart. Plaintiff argues on appeal that a material factual dispute exists as to whether she supervised Sirna. However, we find this contention unpersuasive in light of plaintiff's failure to dispute the documented fact in the trial court proceeding and based upon our independent review of the record. Further, plaintiff conceded in discovery that she worked on all aspects of the NYU Account. Her efforts to limit her responsibility, and corresponding deficiencies in the handling of the account, are unavailing.
Pickell, concerned about losing the NYU Account, asked Scott and Jarvis to evaluate the management of the account. They determined that the NYU Account management team, consisting of plaintiff, Braeunig and Sirna, was not following McKesson's procedures in various important respects. McKesson fired all three individuals. Braeunig, of course, is a man, and Sirna was not pregnant. Braeunig's termination was apparently decided upon by Pickell on February 6, 2002, as documented in the termination letter issued to Braeunig on March 11, 2002, setting his official termination date on March 29, 2002. During the interim period, Braeunig, as a condition of keeping him on during that time, was required to assist in transition of management of the NYU Account. Braeunig was given an opportunity to seek another position within McKesson, which was unsuccessful, and he left McKesson's employment. The reason given for Braeunig's termination was poor performance, including on the NYU Account.
On March 15, 2002, Scott met with Deborah Carlino, McKesson's Human Resources Director. They determined to terminate both plaintiff and Sirna. They met with plaintiff and informed her she was terminated for deficient job performance, including on the NYU Account. Plaintiff, like Braeunig, was given an opportunity to seek another position within McKesson, but it was unsuccessful and she left the company. A notation written by Scott at the bottom of a termination memorandum on March 15, 2002 states that plaintiff "does not feel entire accountability should be hers. I agree." McKesson concedes that not all of the problems with the NYU Account are attributable, either directly or indirectly, to plaintiff. They argue, and we agree, that whether all of the NYU Account deficiencies could be laid at plaintiff's feet is not dispositive. The critical issue here is pretext, and whether the asserted reason for plaintiff's termination, poor job performance, is unworthy of belief and is a cover up for the alleged true reason, discrimination based upon pregnancy.
We note further that McKesson has 400 employees, of whom 85% are women. Many of these employees became pregnant and successfully took maternity leave and returned to work at McKesson. No evidence has been adduced of any pregnancy discrimination by McKesson. On the contrary, the company has a history of being very accommodating to its employees when they become pregnant and as working mothers. Finally, notwithstanding Pickell's denial that plaintiff ever told him she was pregnant, we accept plaintiff's contrary assertion under the Brill standard, as well as her assertion that after she told him he was cold and uncommunicative toward her. However, plaintiff has produced no evidence that any other management-level individuals at McKesson, including Scott, Jarvis, Braeunig, or Carlino, were aware of her pregnancy prior to her termination. We reject plaintiff's urging that a reasonable inference could be drawn that at least some of these individuals were made aware of her pregnancy.
On appeal, plaintiff attempts to raise issues of material fact which she contends are sufficient to require denial of summary judgment and entitle her to a trial. She argues that a rational factfinder could determine that McKesson's asserted reason for firing her was pretextual because she was not responsible for the work that allegedly led to her termination; the testimony of McKesson employees on the issue was contradictory and therefore creates a material question of fact; she did not supervise Sirna; McKesson deviated from its corporate policy by not placing plaintiff on a Performance Improvement Plan prior to terminating her; Pickell became annoyed and then ignored plaintiff upon learning plaintiff was pregnant; and plaintiff had no negative performance evaluations prior to informing Pickell of her pregnancy. We reject these arguments.
We have already discussed the nature of the work attributable to plaintiff that was strongly complained of by NYU and found by defendants to be substandard. We have also previously discussed plaintiff's supervision of Sirna, which, in any event, is not dispositive even if a genuine dispute on that point exists. The asserted conflicting testimony cannot provide a basis for establishing a genuinely disputed material fact. Plaintiff's invitation in this regard is to allow speculation by the trier of fact. Plaintiff presented no evidence regarding any Performance Improvement Plan. Pickell's reaction to learning of plaintiff's pregnancy, in and of itself, is insufficient to demonstrate any disparate treatment based on pregnancy. Indeed, although plaintiff argues that Braeunig, for example, was treated more favorably than she, the record does not support the contention. Plaintiff has produced no evidence of disparate treatment. The three managers on the NYU Account were treated the same, namely, they were all fired for the poor handling of the account.
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