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Mark Greco v. T-Mobile

December 1, 2010

MARK GRECO, PLAINTIFF,
v.
T-MOBILE, USA, DEFENDANT.



The opinion of the court was delivered by: Wolfson, United States District Judge:

*NOT FOR PUBLICATION*

OPINION

This matter comes before the Court on a motion for summary judgment brought by Defendant T-Mobile, USA (―Defendant‖ or ―T-Mobile‖). Plaintiff Mark Greco (―Plaintiff‖ or ―Greco‖) filed a three-count complaint against Defendant, his former employer, claiming: (1) age discrimination in violation of the New Jersey Law Against Discrimination, N.J.S.A. 10:5-12; (2) that defendant created a hostile work environment based upon Defendant's age-based comments in violation of N.J.S.A.10:5-12(a) and; (3) retaliation. For the reasons that follow, Defendant's motion for summary judgment is granted.

BACKGROUND

Plaintiff is a former Senior Business Analyst who worked for T-Mobile-a national provider of wireless voice, messaging, and data service. See Defendant T-Mobile USA, Inc.'s Fed.R.Civ.P. 56.1 Statement of Uncontested Material Facts, ¶ 1 (―Def. SOMF‖).*fn1 Plaintiff was 49-years-old when he was hired by T-Mobile, and 51-years-old when he was terminated. See id. at ¶ 2. At the time Plaintiff was hired, T-Mobile had a ―zero tolerance policy prohibiting discrimination (including age discrimination), harassment, and retaliation. . . .‖ See id. at ¶ 21. Plaintiff's tenure at T-Mobile was from March 13, 2006 to June 20, 2008.

In late 2005, Plaintiff obtained temporary placement at T-Mobile through InsPara Networking Technologies, a temporary employment agency. See id. at ¶ 15. In March of the following year, Raymond Nettleship hired Plaintiff, then 49, for permanent employment. See id. at ¶ 17. Plaintiff commenced work as a Senior Business Analyst, reporting directly to Nettleship. See Id. His role was to act as the ―communications link between T-Mobile's end users (business partners and customers) and its software developers (the employees tasked with creating the systems and solutions required by the end users).‖ See id. at ¶ 18.

In the second quarter of 2006, Plaintiff received his first Quarterly Performance Review. While Nettleship noted that Greco is ―appreciative of the team members he work [sic] with,‖ Nettleship also found that Greco ―needs to.be sure to modify his approach based on the people he was dealing with.‖ See Saloman Decl., Ex. 18 at 3-4. On this Performance Review, Greco received an overall rating of 3.0 out of 5.0. See id. A 3.0 is defined as ―Achieved Expectations.‖ See Saloman Decl., Ex. 20, at 3. In Greco's second Quarterly Performance Review for the third quarter in 2006, Nettleship raised concerns that Greco ―has not made the professional relationships required to be successful in his position.‖ See Saloman Decl., Ex. 19 at 9. Similarly, Nettleship noted that Plaintiff ―does not always create win/win relationships with his customers. He needs to give more thought to his email communications which have resulted in some challenges this quarter.‖ Id. at 4. However, like the second quarter performance review, there were several positive comments. See id. at 4 (―[Greco] is working hard to meet his comittments [sic].‖) Overall, Greco received an overall rating of 2.79*fn2 out of 5.0-a score slightly short of ―Achieved Expectations.‖ See id.

In Greco's Quarterly Performance Review for the fourth quarter of 2006, Nettleship commented that Greco ―needs to take a closer look at his skills and talents and make sure he has an accurate picture of what they are specific to our environment. He has said on numerous occasions that he has strong database and software development skills but has not been able to convince his managers or peers.‖ See Saloman Decl., Ex, 20 at 9. Nonetheless, Greco's overall rating went up from the previous quarter to a 3.0. See id.

In the fourth quarter performance review, Plaintiff expressed displeasure at the fact that a manager was hired to oversee the Business Analysts, including himself. See id. at 10. In the performance review, Plaintiff claimed that he was ―led to believe‖ that this was a position for which he would be considered. See id. at 10. In this same performance review, Nettleship explained that Greco was not eligible for this position because ―[t]he business need for this role is to have a heavy technical manager that can provide architecture guidance and interview and hire other technical analysts. This does not fit with [Greco's] current experience and skill level.‖ See id. at 11. Further, Nettleship noted that he had not implied that Greco would be eligible for this role. See id. Plaintiff nonetheless alleges that he ―should have been considered for [the] position.‖ See Pl. Resp. to Def. SOMF, ¶ 27. However, Plaintiff also admitted during his deposition that he was not a ―highly technical manager‖ and that the position did not fit with his experience and skill level at the time. See Greco Dep. Tr. 224:8-17.

Before the new manager began working at T-Mobile, Nettleship completed Greco's Review for the first quarter of 2007, on which Greco received an overall rating of 3.6 out of 5, above the 3.0 threshold for ―Achieved Expectations.‖ See Cert. of Brian Cige, Ex. 2. This was the last review of Greco's performance by Nettleship.

Atiq Hashmi was hired to fill the new management position and became Greco's direct supervisor in May 2007. See Def. SOMF, ¶ 28. Hashmi, in turn, reported to Nettleship. See id. On June 18, 2007, Nettleship emailed Hashmi, expressing concerns about Greco:

I am hearing some disturbing things about Mark Greco's communications and general interaction with our team. I would like you to be deeply involved in the IA project and keep a very close eye on him. . . . I have asked Sandra to make sure your [sic] are invited to every meeting about the IA project and cancel them if you are not available. Please make this a priority as I have reason to believe this is impacting the team overall.

See Saloman Decl., Ex. 21. On July 10, 2007, an Employee Corrective Action Notification for Mark Greco was issued. See Saloman Decl., Ex. 21. The memorandum noted, amongst other things, that: ―[s]ome department members have observed non-cooperative interaction from [Greco];‖ ―[Greco] disregarded directions as provided;‖ Greco ―missed several meetings in the past without prior notification,‖ and that Greco didn't respond to action items in a timely matter. See Saloman Decl., Ex. 22. The next day, Hashmi met with Greco to discuss this document and to counsel Greco. See Def. SOMF, ¶ 32.*fn3 Greco secretly recorded this conversation. See id. at ¶

32.*fn4 During the meeting, Greco told Hashmi that Greco was ―surprised [Hashmi] lasted‖ in a management position. See Saloman Decl., Ex. 23.*fn5 Greco alleges that at the end of this meeting, Hashmi asked him ―if the problem [was] related to [Greco] being older than [Hashmi]‖ and having to report to a ―younger person.‖ See Def. SOMF, ¶ 109. Defendant contends that Hashmi ―merely observed that Greco had more tenure and experience at T-Mobile than Hashmi.‖ See id. at ¶ 110. In a subsequent meeting between the two, which Greco again secretly recorded, Hashmi noted that ―[m]y point was I have sometimes referred to you as being here longer than me.‖ See Saloman Decl., Ex. 38, 22:11-12.

The only other age-based comment that Greco alleges is a statement made by Nettleship during a T-Mobile meeting. See Def. SOMF, ¶ 112.*fn6 At the meeting, while operating a projector, Nettleship asked the crowd whether he should ―increase the font size for those of us over forty.‖ See Greco Cert., ¶ 20. Notably, Nettleship himself is over 40. Greco admitted, at his deposition, that he ―originally‖ took this statement to be a joke.*fn7 Greco Dep. Tr. 492:19 -- 493:4.

At the end of July 2007, Hashmi completed his first quarterly review of Greco's performance. In the review, Greco received an overall rating of 2.9. See Saloman Decl., Ex. 24. Similar to the reviews by Nettleship, Hashmi's review noted areas where Greco needed improvement as well as areas where Greco made ―a good effort.‖ See Saloman Decl., Ex. 24, at 4-5. In the next performance review, Q3 2007 Standard Review, Greco's overall rating dropped again to a 2.0. See Saloman Decl., Ex. 25. The review noted that Greco needed to improve his ―customer communications,‖ ―increase his adaptability for project successes,‖ and that Greco would ―benefit by presenting himself as approachable.‖ See Saloman Decl., Ex. 25, at 4, 7. In this review, Greco contended that ―[t]here are serious problems with this review.and that it does not reflect [his] true performance‖ See id. at 9.

Subsequent to the performance reviews advising Greco to work on his communication skills, further problems with Greco's approachability were noted. In October 2007, David Wetzel, a T-Mobile Manager complained, ―we continually hit a wall with [Greco].‖ See Saloman Decl., Ex. 26, at 2. Similarly, another T-Mobile manager noted that an earlier issue resulting in ―email escalations.would have been avoided if [Greco] could have been a little more customer centric.‖ See Saloman Decl., Ex. 27. Likewise, when Nettleship informally requested feedback from customers on their perception of his entire business analyst team, several customers expressed dissatisfaction with Greco. See Def. SOMF, ¶¶ 45-47. Plaintiff admits that those individuals conveyed these opinions. See Pl. Resp. to Def. SOMF, ¶¶ 45-47.

One customer noted that Greco ―provides questionable customer service for the overall user and even though he may at times be learning about the business it does not appear that he is grasping the Big Picture of T-Mobile Engineering and Operations.‖ See Def. SOMF, ¶ 46. Another customer made some positive assessments, specifically; that he has been ―satisfied with the end result of the first two projects‖ he worked ―extensively‖ on with Greco. See Def. SOMF, ¶ 47. However, this same customer noted that Greco ―has a very confrontational approach.‖ See id.

In the performance review for the last quarter in 2007, Greco again fell below the ―Achieved Expectations‖ threshold. See Saloman Decl., Ex. 34, at 7. He received at 2.48 out of

5. See id.

In December 2007, Greco declined to assist a co-worker with a project because he was too busy; Plaintiff told the co-worker to do it himself. See Def. SOMF, ¶ 51. The co-worker reported it to his supervisor, who then reported it to Hashmi. See id. After Hashmi discussed this issue with Greco, Greco approached the co-worker in a public area of the office and, in an ―elevated‖ tone expressed to the co-worker his displeasure that the co-worker had reported Greco's conduct. See id. at ¶ 53. Plaintiff admits that this conversation occurred, but denies Defendant's characterization of the conversation as a ―shouting match.‖ See Pl. Resp. to Def. SOMF, ¶ 53. The co-worker complained to Hashmi. See id. at ¶ 54. Nettleship subsequently emailed Greco expressing his concerns with Greco's behavior. See Saloman Decl., Ex. 32. The email noted that ―[b]ased on the account of at least one person that witnessed [the] exchange.your interaction with him was less than professional [and] later turned into a shouting match.‖ See id. Nettleship also noted, ―it is now time for this to be raised to [Human Resources].‖ See id.

On January 21, 2008, Greco received a Notice for Performance Issues and Improvement Plan (―PIP‖), which outlined several concerns with Greco, including his ―irritation with customers,‖ ―inconsiderate.communication with customers,‖ ―unapproachable‖ demeanor, and ―lack of trust in feedback and unwillingness to partner with management as well as others.‖ See Saloman Decl., Ex. 33. Defendant alleges that this PIP was triggered by the December altercation. See Def. SOMF, ¶ 59. The PIP required that Greco immediately improve all areas of deficiency. See id.

It was around this time that Human Resources (―H.R.‖) became involved. Defendant contends that Hashmi (not Greco) was the first to involve H.R. to help coach Greco's performance deficiencies. See id. at ¶ 107. Plaintiff contends that while Hashmi was the first to involve H.R., this was at Plaintiff's urging and that it was not to help coach him. See Pl. Resp. to Def. SOMF, ¶ 107.

Greco first complained to H.R. after receiving his first PIP in 2008. See Def. SOMF, ¶ 87; Pl. Resp. to Def. SOMF, ¶ 87. At this time, Greco told LaTanya Kelly, an H.R. manager, that his third quarter and fourth quarter performance evaluations for 2007 were inaccurately rated and he discussed several possible reasons for this, including reprisal for poor internal survey scores, Hashmi's insecurities, and Greco's age. See Def. SOMF, ¶ 88; Pl. Resp. to Def. SOMF, ¶

88. Kelly asked Greco to provide written details about his issues and concerns. See Def. SOMF,

¶ 89. In response, Greco emailed Kelly on January 23, 2008, claiming: Hashmi is ―repeatedly filled with confusion, confliction and lack of Logic;‖ Hashmi's ―recalling of events, circumstances, and dates is very poor‖ and; Hashmi ―has a reputation in the department of being confused, having poor memory, cannot focus, and being less than honest when challenged.‖ See Saloman Decl., Ex. 47. While Greco alleged several reasons for why Hashmi would provide an inaccurate performance review of Greco, including age discrimination, ...


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