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Bispo v. McKesson Information Solutions Corp.

September 22, 2008

JUDITH BISPO, PLAINTIFF-APPELLANT,
v.
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.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION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 In an unpublished opinion, we reversed the dismissal of plaintiff's discriminatory discharge claim on the basis that discovery had not been completed, and we remanded to allow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, ...


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