January 6, 2010
MANSOOR MOUSSAVI, APPELLANT,
VERIZON WIRELESS, RESPONDENT.
On appeal from the New Jersey Division on Civil Rights, Docket No. ET02WB-52682.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted December 16, 2009
Before Judges Fisher and Espinosa.
In this appeal, we review a final decision of the Division on Civil Rights (Division) that found a lack of probable cause to believe the termination of Mansoor Moussavi's employment relationship with Verizon Wireless (Verizon) was the product of discrimination.
The record reveals that, at the time of his termination, Moussavi was a fifty-two year-old Iranian-American man. In February 1990, he was hired by Bell Atlantic Mobile, a Verizon predecessor, as a member of its technical staff. He held that position for more than sixteen years when terminated in August 2006.
Moussavi filed a verified complaint with the Division on September 14, 2006. Specifically, Moussavi accused Verizon of firing him because of his national origin and age or, alternatively, in retaliation for reporting a supervisor to the Verizon's human resources department (hereafter "human resources"). The Division served Verizon and demanded that it produce Moussavi's employment file and its discrimination policies. Verizon answered and produced the requested materials.
During the fact-finding conference on April 26, 2007, a Division investigator examined Moussavi and two Verizon supervisors. A few days after the conference, the parties submitted additional documentation.
In May 2008, the investigator released his decision, recommending that the Division issue a finding of no probable cause because Moussavi had not produced sufficient evidence of discrimination or reprisal to sustain a claim. On May 30, 2008, the Division issued a finding of no probable cause and dismissed the complaint. This timely appeal followed.
In appealing, Moussavi contends that the evidence does not support the Division's finding of no probable cause. We find no merit in that argument.
As a member of the technical staff, Moussavi had various responsibilities, including: scheduling, coordinating and completing engineering projects; managing multiple, concurrent product development projects; organizing highly complex activities for the successful launch of engineering projects; risk management; and preparing regular reports for upper management. He was also expected to "work closely with a variety of internal teams... efficiently and effectively." According to Verizon's written expectations, "[s]trong communication skills," "excellent problem solving skills," "self-motivation," and "leadership" were critical to the job.
The record reveals that Moussavi was, for the most part, a good but not great employee during his first thirteen years at Verizon. From 1995 through 1999, Moussavi was consistently rated "on target" by his supervisors,*fn1 meaning he met but did not exceed his managers' expectations. According to his performance reviews from those years, Moussavi was "very technically astute" and "a solid performer, achieving results with each project he was given." He was also "always willing to help out when asked" and "demonstrated many of the [company's] values well." However, his "direct style of communication" was often "misinterpret[ed]" and "[a]t times, [Moussavi] trie[d] to limit the scope of his work to just technical issues." It was reported that, at his level, Moussavi should have been showing "more initiative." His managers recommended that Moussavi "pursue leadership and communication skills training."
From 2000 through 2003, Moussavi's supervisors rated him as "meeting expectations," the middle rating on a five-category scale. From a positive perspective, Moussavi was described as "very thorough" and a "bright and dedicated individual," and he continued "to perform all tasks that [were] asked of him quite competently." However, problems remained. One supervisor commented that Moussavi could "operate at a level of performance much higher than what we are seeing today" and wanted Moussavi to "take on a more aggressive role... by assuming a greater level of responsibility and risk." It was reported that Moussavi "need[ed] to set an example to his team" and "help his other team members by owning up to issues that may or may not operate directly within [his] realm of responsibility." Another supervisor commented that Moussavi must become "highly self-motivated, hard driving and assertive" and "be proactive and decisive in his decision[-]making."
Moussavi alleged that in 2002 he experienced problems with one of his supervisors. According to Moussavi, this supervisor "was harassing everybody" in the office and was "extremely" biased. Moussavi complained to Verizon's human resources department but, after interviewing Moussavi's fellow employees, human resources found no evidence to support his contentions. Instead, human resources found that the supervisor simply had a "high level of expectation" for his subordinates, which Moussavi misinterpreted as harassment.
In 2004, Moussavi was evaluated twice: once mid-year and once at year-end. In the mid-year evaluation, Moussavi's supervisor rated Moussavi as "performing," meaning he "consistently attain[ed] and... periodically exceed[ed] job requirements." According to the supervisor, Moussavi had "done what ha[d] been asked of him" and although he had "not played a major lead role in any of his projects," he had "adequately performed his supporting role." Despite this positive interim report, Moussavi was rated "developing" at year-end, meaning his performance met "some but not all job requirements" and improvement was needed. His new manager commented that Moussavi should have been "operating at a much higher level" and commanding "the lead and let[ting] others know he is the go to person." Instead, he had "not played a major lead role in any of his projects" and was asking "questions that he should be aware of already." He was also reported to have a tendency to "blame others rather than taking responsibility himself."
In January 2005, Moussavi met with his new manager to discuss the 2004 assessment. According to Moussavi, the manager "yell[ed]" and "scream[ed]" during the meeting, causing him to walk out and report the manager to human resources. According to Verizon, human resources investigated the incident and determined that the manager had inappropriately "raised her voice" towards Moussavi. She was thereafter counseled by one of her supervisors on "appropriate communication with employees."
On February 3, 2005, Moussavi met with the manager for a second time to review the 2004 assessment. During this meeting, Verizon claims that Moussavi was unreceptive to any of the manager's ideas and reportedly accused her of filling the 2004 performance report with lies.
A few weeks later, Moussavi again reported the manager to human resources, claiming she created a "hostile work environment" by ordering Moussavi to move his office seat away from the window. According to Verizon, human resources investigated the complaint and determined that the manager did nothing wrong and only moved Moussavi's seat because she wanted to situate team members more closely together.
In May 2005, Moussavi again reported the manager to human resources, this time alleging gender discrimination. According to Verizon, human resources investigated and found the allegations baseless. A few months later, Moussavi reported the manager to human resources for a final time. Once again, human resources found his allegations baseless.
In his 2005 performance review, the manager rated Moussavi as "developing" for the second year in a row. According to the manager, Moussavi "debate[d] points with [his superiors] through email" rather than attempting to improve his work. He also failed "to clearly communicate" with his fellow employees, was not taking a "proactive, assertive role," and "expect[ed] too many others to be doing things for him."
Because of these deteriorating reviews, Moussavi was placed on a "performance improvement plan" in 2006. Pursuant to this plan, Moussavi was expected, among other things, to learn how to "[e]fficiently and effectively manage multiple, concurrent projects," "[c]ommunicate effectively," and "[e]ffectively manage project risk." Moussavi was subject to termination if he failed to meet these objectives. He voluntarily attended some classes, but, according to Verizon, showed no improvement and was terminated.
Although Moussavi acknowledged he received poor reviews in 2004 and 2005, he maintained his job performance never worsened, and alleged that when the new manager arrived, she was determined to fire him because of his national origin and his age. In addition, Moussavi claims that once he reported the former manager to human resources without success, she became emboldened and fueled by revenge. He claims the manager misrepresented his performance in the 2004 and 2005 reviews and, after she was promoted, directed Moussavi's new manager to "pull the trigger" and fire him.
In appealing the Division's determination of no probable cause, Moussavi initially argues the findings were not supported by the evidence. Our review of that contention requires, first, an understanding of the applicable law.
Generally, an employer may discharge an employee "for good reason, bad reason, or no reason at all," Maiorino v. ScheringPlough Corp., 302 N.J. Super. 323, 345 (App. Div.) (quoting Walker v. AT&T Technologies, 995 F.2d 846, 850 (8th Cir. 1993)), certif. denied, 152 N.J. 189 (1997), except that "prohibited consideration[s]" such as race, national origin, age and gender may not play a role in the decision making process or have "a determinative influence on the outcome of that process," Bergen Commer. Bank v. Sisler, 157 N.J. 188, 207 (1999) (quoting Maiorino, supra, 302 N.J. Super. at 344). In discriminatory discharge cases filed with the Division, a complaint may be dismissed after investigation only if there is no probable cause to believe a prohibited consideration played a role in the employee's termination. N.J.S.A. 10:5-13. Probable cause, in this context, means a "reasonable ground of suspicion supported by facts and circumstances strong enough in themselves to warrant a cautious man in the belief that the law is being violated." Sprague v. Glassboro State College, 161 N.J. Super. 218, 225 (App. Div. 1978) (quoting Barnes v. Goldberg, 283 N.Y.S.2d 347, 352 (Sup. Ct. 1966)).
Because discrimination is not typically practiced openly, most cases turn on the weight and persuasiveness of circumstantial evidence. Price Waterhouse v. Hopkins, 490 U.S. 228, 271, 109 S.Ct. 1775, 1802, 104 L.Ed. 2d 268, 301 (1989) (O'Connor, J., concurring). This requires the application of a three-pronged test. McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824, 36 L.Ed. 2d 668, 677-78 (1973); Bergen Commercial Bank, supra, 157 N.J. at 210. First, it must be determined whether the claimant has established a prima facie case of discrimination by showing:
(1) he was in the protected group; (2) he was performing his job at a level that met his employer's legitimate expectations; (3) he nevertheless was fired; and (4) the employer sought someone to perform the same work after he left. [Zive v. Stanley Roberts, Inc., 182 N.J. 436, 450 (2005).]
If the employee establishes a prima facie case, the burden then shifts to the employer to provide a non-discriminatory reason for discharge. Bergen Commercial Bank, supra, 157 N.J. at 210. Any legitimate reason will satisfy this prong and shift the burden back to the employee to demonstrate that the purported justification was pretextual. Zive, supra, 182 N.J. at 449. To show pretext, the employee "must submit evidence that either casts sufficient doubt upon the employer's proffered legitimate reason so that a factfinder could reasonably conclude it was fabricated" or, alternatively, provide sufficient proof to "allow the factfinder to infer that discrimination was more likely than not." El-Sioufi v. St. Peter's Univ. Hosp., 382 N.J. Super. 145, 173 (App. Div. 1995).
In finding an absence of probable cause, the Division applied these legal principles, stating:
[Verizon] articulated a legitimate, nondiscriminatory, business related reason for its decision to discharge [c]omplainant; that is, [c]omplainant's job performance was unsatisfactory. [Verizon] supported its position with evidence which included performance appraisals from several supervisors, a Performance Improvement Plan, and e-mail correspondence between [c]omplainant and his last supervisor. Complainant was unable to demonstrate that the reason articulated by [Verizon] for his discharge was a pretext to discriminate against him because of his national origin or age. Finally, the investigation did not disclose sufficient evidence to support a claim that [Verizon] retaliated against [c]omplainant in its decision to discharge him because he engaged in protected activity.
Moussavi argues that the record does not support these findings. We reject that contention.
First, it is not clear that Moussavi established a prima facie case. There is no direct evidence here of discrimination or reprisal of any type.*fn2 And, even if we assume Moussavi was a member of a protected class, there is nothing in the record to show that Moussavi "met [Verizon's] legitimate expectations." Zive, supra, 182 N.J. Super. at 450. While an employee need not show much to prove he was meeting the employer's expectations, id. at 447-48, here the Division could legitimately conclude from the evidence that Moussavi failed to sustain this aspect of his claim.
Even assuming Moussavi established a prima facie case, Verizon provided a plausible non-discriminatory reason for termination -- poor work performance -- and Moussavi failed to show this reason was pretextual. Although he alleged his performance was similar to two white co-workers who were not fired, which, if true, would have been evidence of pretext, Verizon produced the performance appraisals of both of these co-workers and they were rated far higher than Moussavi. When asked to respond to those evaluations and explain how his performance was similar to the white employees, Moussavi said:
I know, I just know. I know what they did we worked close together (sic). People talk you know.
Bald assertions like this permeate the record created in the Division. As another example, when asked to explain why his performance appraisals in 2004 and 2005 were so poor, Moussavi responded that the manager "goes and changes that because of the biases and that is because of the discussions and the retaliation she did about the things that she did." When the investigator asked for greater detail or specificity, Moussavi provided none.
Our review of the Division's determination is limited. Greenwood v. State Police Training Ctr., 127 N.J. 500, 513 (1992). "[C]courts are not free to substitute their judgment as to the wisdom of a particular administrative action," N.J. Guild of Hearing Aid Dispensers v. Long, 75 N.J. 544, 562-63 (1978), and should only intervene if the agency decision "was arbitrary, capricious or unreasonable, lacked fair support in the evidence, or violated legislative policies," Univ. of Med. & Dentistry v. Grant, 343 N.J. Super. 162, 168 (App. Div. 2001). See also Clowes v. Terminix Int'l, Inc., 109 N.J. 575, 587 (1988). Having closely examined the record, we are entirely satisfied there was ample evidence to support the Division's finding and that the Division's final decision was not arbitrary, capricious or unreasonable.
Moussavi also asserts that the Division committed procedural errors that warrant reversal. First, he claims the Division failed to provide to him copies of Verizon's documentation and, as a result, he could not fully respond. Second, Moussavi alleges he was never notified of the deadlines for requesting a transfer of his case to the Office of Administrative Law. Third, he asserts he was never notified of the fifteen-day deadline for submitting evidence after the fact-finding conference. And, fourth, Moussavi argues the Division "superficially" investigated the case and instead of conducting an independent inquiry, took "the word of [Verizon's] lawyers" as the facts in the matter. We find insufficient merit in these arguments to warrant discussion in a written opinion. R. 2:11-3(e)(1)(E). We need only briefly observe that the record demonstrates that: Moussavi had a full and fair opportunity to examine and respond to the information provided by Verizon; Moussavi signed a form, which indicated the time for requesting a transfer to the Office of Administrative Law; Moussavi was sent a letter advising of the fifteen-day deadline for submitting additional evidence; and the Division conducted a sufficient investigation into the issues raised.