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Ruth Ann Malloy v. Intercall

December 28, 2010


The opinion of the court was delivered by: Linares, District Judge.



This matter comes before the Court on: (1) a motion for partial summary judgment filed by Plaintiff Ruth Ann Malloy; (2) a motion to strike Plaintiff's expert Peter Crain, Ph.D, filed by Defendant Intercall, Inc. ("Intercall"); (3) a motion to strike Plaintiff's expert Stephen Levison, Ph.D, filed by Intercall and (4) a motion for summary judgment filed Intercall. The Court has considered the submissions in support of and in opposition to the motions and decides the matter without oral argument pursuant to Rule 78 of the Federal Rules of Civil Procedure. For the reasons discussed below, Ms. Malloy's motion for partial summary judgment is denied, Intercall's motion for summary judgment is granted, and Intercall's motions to strike Ms. Malloy's experts are denied as moot.


Prior to 2005, Ms. Malloy worked in the Wayne, New Jersey, sales office of ECI, a telephone and video conferencing company. (Pl.'s Stmt. of Undisputed Mat'l Facts in Supp. of Mot. for Partial Summ. J. [hereinafter "Malloy's SOF"] ¶ 11.) She had worked at ECI since 1994. (Id.) At the beginning of 2005, ECI was bought by Intercall. (Id. ¶ 13.) Thus, as of this acquisition date, Ms. Malloy technically worked for Intercall. But, until August 1, 2005, Ms. Malloy continued reporting to her ECI supervisor, Greg Mills. (Decl. of Serene M.Hennion, Esq. in Opp'n to Def.'s Mot. for Summ. J. [hereinafter "Hennion Decl."], Ex. G., Dep. of Jay McCarthy, dated Nov. 5, 2009, Tr. 78:14-23.

As part of its process to determine which ECI employees it wanted to retain, Intercall managers interviewed former ECI employees. (Malloy's SOF ¶ 17; Def.'s Responsive Stmt. of Mat'l Facts and Supplemental Stmt. of Facts Not in Dispute [hereinafter "Intercall's RSOF"] ¶ 17.) Ms. Malloy was interviewed in Intercall's Wayne, New Jersey office by Marty Dunne and Kim McLachlan. (Malloy's SOF ¶ 15.) At the time of the interview, Mr. Dunne was Intercall's Vice President of Sales and Ms. McLachlan was a sales manager. (Id. ¶ 16.) Ms. McLachlan in turn supervised another sales manager, Patti Paczkowski. (Id. ¶ 19.) Intercall "terminated most of the ECI sales representatives," but decided that it wished to retain Ms. Malloy as a sales manager. (Id.; Intercall's RSOF ¶ 19.) Ms. Malloy was to continue working in Wayne, New Jersey, and would be reporting to Ms. Paczkowski. (Intercall's RSOF ¶ 19.)

On July 13, 2005, Ms. Malloy emailed Ms. Paczkowski regarding her "impressions . . . of the scope of [her] position within the Intercall organization in general and under [Ms. Paczkowski's] direction in particular." (Cert. of Gary J. Chester, Esq., in Supp. of Pl.'s Mot. for Partial Summ. J. [hereafter "Chester Cert."], Ex. F, email from Ms. Malloy to Ms. Paczkowski, dated July 13, 2005.) Ms. Packowski responded to the email by providing responses in bold to the queries posed by Ms. Malloy. The questions and answers are as follows:

1. Ability to keep existing base of business. YES.

2. Ability to keep working existing prospects base for future close. We will choose 10-15 of your top prospects. In addition, you will also be assigned a designated territory.

3. Ability to retain my office in Wayne, NJ. YES.

4. Report to Patti Paczkowski and to report to the Parsippany Office for weekly status meetings (Thursdays). When traveling on business or during inclement weather in the winter I can call into the weekly status meeting. YES. You will need to change your schedule a bit however . . . .

5. While I work from home from 7:30 to 8:30 am, I will be into the office at 9 am and unless workload warrents (sic) it will leave at 5PM. YES.our hours are 8:00-5:00 . . . .

6. I will be permitted to continue to work as a Senior National Sales Manager . . . . Your new title will be Senior Meeting Consultant.

7. I have applied under West's career application. Thank you!

8. My salary and compensation will remain the same. YES.

9. Certain accounts such as ABA/ABACLE; and Southern Company's will be reviewed for possible relief. We will review. Unable to commit on relief possibilities at this time.

If there's anything I forgot please advise as to your consent to the above. (Id.) This arrangement-allowing Ms. Malloy to keep her existing accounts which were spread throughout the country-was not in line with Intercall's business model. Intercall's businesses model provided that accounts should be serviced in the geographic region where the company being serviced is located. (Malloy's SOF ¶ 50; Intercall's Stmt. of Facts Not in Dispute [hereinafter "Intercall's SOF"] ¶ 4.) Ms. Malloy understood that her arrangement would be an exception to the general policy. (Malloy's SOF ¶ 50.)

As part of her continuing employment with Intercall, Ms. Malloy received Intercall's policy manual. (Decl. of Amy Dashiell and Vol. 1 of Exs. in Supp. of Def.'s Reply to Pl.'s Add'l Disputed Mat'l Facts [hereinafter "Dashiell Decl."], Ex. A, Malloy Dep., dated Apr. 6, 2009, Tr. 346:16-347:24; Intercall's RSOF ¶ 26.) She testified that she read the manual "front to back." (Malloy Dep. Tr. 347:25-348:8.) In particular, Ms. Malloy acknowledges that her employment at Intercall was at-will. (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J. [hereinafter "Malloy Opp'n"], at 43 ("Plaintiff is an at-will employee.")

On August 1, 2005, Ms. Malloy stopped reporting to Mr. Mills and started reporting to Ms. Paczkowski. Although Intercall in general agreed to allow Ms. Malloy to keep her existing client base, some of her accounts were transferred to other locations. For example, prior to September 2005, Wellpoint, Sony and PMI were transferred to the national accounts office or to the offices in the geographic region where those companies are located. (Dashiell Decl., Ex. A., Malloy Dep. Tr. 208:22-209:4; Br. in Supp. of Def.'s Mot. for Summ. J. [hereinafter "Intercall's Summ. J. Br."], at 16 & n.8.) Then, on October 13, 2005, Mr. Dunne sent an email to Ms. Paczkowski and Ms. McLachlan regarding Ms. Malloy's accounts. He stated:

Guys . . . let's agree that by Jan 1, [Plaintiff] should begin transitioning her acquisition activity that is outside of her designated territory to local MCs. Does that make sense? If not, where does it not makes sense? Thoughts. (Chester Cert., Ex. H, email from Mr. Dunne, dated Oct. 13, 2005.) Ms. Paczkowski responded:

I agree that the majority of her accounts should be moved locally to the appropriate territory. I agree that this makes most sense for the company.

However, the problem is that we committed in writing to keep all existing accounts under [Plaintiff]. She has called me out several times already regarding this commitment. To transition these accounts will guarantee her departure.

At this point, I am trying to decipher if her leaving would be best OR if her leaving would guarantee a huge loss in revenue based on her existing client relationships. (She has lead me to believe that this is the case.)

Marty [Dunne], please allow me to November 15th before committing to [transfer her accounts]. (Id.) Mr. Dunne responded: "Okay." (Id.) Although Mr. Dunne testified that he wanted Ms. Malloy's accounts transitioned before January of 2006 because of his belief that they would be "better managed by local representatives" (Malloy's SOF ¶ 41), it is undisputed that Ms. Malloy's accounts were not transferred at that time.

Also in October of 2005, Intercall acquired other companies including Sprint Conferencing and Raindance Conferencing. (Intercall's Reply to Pl.'s Add'l Disputed Mat'l Facts [hereinafter "Intercall's Reply SOF"] ¶ 4.) Ms. Paczkowski did not assign any accounts from these acquisitions to Ms. Malloy. (Id.) However, it is undisputed that "other sales consultants who reported to Paczkowski received accounts from the acquisitions." (Id.) It is also undisputed that all of the other sales consultant who reported to Ms. Paczkowski were younger than Ms. Malloy. (Id. ¶ 5.) Ms. Malloy complained to Ms. Paczkowski about not being assigned any of the new accounts. Ms. Paczkowski replied:

[I]n respect to the ECI and Sprint accounts, you have one of the largest revenue bases in the office. I held back transferring over new revenue to you based on how much responsibility you already manage. [T]his revenue would be considered as "moved" not "new," so as a result your quota would have increased even more. (Id. ¶ 6; Intercall's SOF ¶67.)

On November 2, 2005, Ms. Malloy provided her October revenue numbers to Ms. Paczkowski. (Intercall's RSOF ¶ 59) . Ms. Pazckowski responded by email that she was concerned about the numbers because it appeared that Ms. Malloy would not be meeting her targets. (Id.)

Several weeks later, at the end of November, Ms. Malloy was hospitalized with a perforated ulcer. (Intercall's RSOF ¶ 60.) On December 6, 2005, Ms. Paczkowski was informed by Maribell Santiago, an Intercall Employee Relations Coordinator, that Ms. Malloy "probably won't be able to return [to work] until February 2006." (Dashiell Decl., Ex. B., email from Ms. Santiago to Ms. Paczkowski, Dec. 6, 2005 (marked as Santiago Ex. 5).) Three days after receiving notice that Ms. Malloy's medical leave would be for an extended period of time, Ms. Paczkowski emailed another Intercall employee, Taryn Stinson, about transferring Ms. Malloy's accounts that were not within the territory managed by Ms. Paczkowski to the geographic areas where the companies were located. Ms. Paczkowski wrote:

I have been given the go-ahead to move all of Ruthann's accounts to where they belong according to geography. Once I receive the list of account, city and state[.] I would love to start transitioning them immediately. Is this something that you can help me with? (Chester Cert., Ex. L, email exchange between Ms. Stinson and Ms. Paczkowski, dated December 9, 2005.) Ms. Stinson responded, providing a list of Ms. Malloy's accounts and identifying "the appropriate ICall rep code based on zip codes." (Id.) Ms. Packzowski responded:

Please see the attached. All companies from Tab 1 should be moved ASAP! I pulled off all accounts based in NJ, NY and CT (within my territory scope) and placed on Tab 2 -- Ruthann will be keeping these accounts. . . . (Id.) As a result, Ms. Malloy's accounts, not located in NJ, NY, or CT, were transferred to other Intercall sales managers. (See also Malloy's SOF ¶ 47.)

Ms. Malloy returned from medical leave on February 17, 2006. (Id. ¶ 48.) At this time, Ms. Pazckowski informed her that all of her accounts located outside of New York, New Jersey, and Connecticut had been transferred. (Id.) Ms. Malloy requested that she be given a designated geographic territory in Ms. Paczkowski's area. In approximately September 2006, Ms. Malloy was assigned Western Connecticut as her geographic territory. (Intercall's Reply SOF ¶¶ 19 & n.1, 25; Pl.'s Stmt. of Add'l Material Facts, submitted in opposition to Intercall's MSJ [hereinafter "Malloy's Add'l SOF"] ¶ 26.) In late 2006, Intercall assigned another person to this territory. (Intercall's Reply SOF ¶ 26) Intercall did not inform Ms. Malloy that it had placed another person in this territory. (Id.)

In late November 2006, Ms. Malloy acknowledges that she was continuing to not meet the sales target numbers set by Intercall. (Dashiell Decl., Ex. A, Malloy Dep. Tr. 431:17-432:12.) As a result, she was given a Performance Improvement Notice ("PIN"), which required her "to improve her performance no later than February 28, 2007. (Malloy's SOF ¶ 52; Intercall's SOF ¶ 50; Intercall's RSOF ¶ 65.) Ms. Malloy does not dispute that she was failing to meet her targets, rather, she asserts that she was set up to fail because she was given an area that was a "joke" and numbers to call on that were "bogus." (Intercall's Reply SOF ¶ 27; Malloy's Response to Stmt. of Facts [hereinafter "Malloy's RSOF"] ¶ 16.)

On January 8, 2007, Gwen Stallins, an Intercall Employee Relations Director, sent an email to Mr. Dunne recommending that Ms. Malloy be terminated. Ms. Stallins wrote:

I wanted to give you a heads up [and] solicit any comments you might have on this. Patty Paczkowski and Kim McLachlan contacted me again today concerning serious performance issues with Ruthann Malloy. Ruthann is currently on a Step III PIN for these issues, and is showing no improvement. I am going to recommend termination of her employment before the PIN expires.

Ruthann has on occasion indicated that she would file discrimination charges . . . against us if we termed her, but I believe that we are in a good position at this time to either defeat the charges or minimize the damages based on clearly documented performance failures. Absent any objection from you, we wish to proceed in the next day or two. Appreciate any feedback. (Chester Cert., Ex. K.) Mr. Dunne responded to Ms Stallins by telling her that he "supported [her] decision on this." (Id.) Ms. Stallins then wrote to Ms. Paczkowski, copying Ms. McLachlan, stating: "Patty -- we have the green light from Marty [Dunne] . . . ." (Id.) Ms. Paczkowski thanked Ms. Stallins and told her that, before Ms. Malloy was actually terminated, Ms. Paczkowski "first need[ed] to prepare [some] documents." (Id.)

Three days after this exchange, on January 11, 2007, a Saturday Night Live clip regarding sexual harassment in the workplace was shown during a video conference presented by the Boston sales office. (Intercall's Reply SOF ¶ 40.) Ms. Malloy watched the video and claims that it was offensive to her. (Id.) She immediately complained to Ms. Paczkowski. (Intercall's SOF ¶ 54.) It is undisputed that Ms. Paczkowski responded by email, apologizing to Ms. Malloy and telling her that she would forward the complaint to Ms. McLachlan. (Id.) It is also undisputed that the manager responsible for airing the clip was reprimanded by Ms. McLachlan. (Id.)

Ms. Malloy was terminated on January 23, 2007. (Intercall's RSOF ¶ 55.) Around January 30, 2007, Ms. Malloy suffered a massive stroke. (Malloy's Add'l SOF ¶ 46.) Ms. Malloy presently claims that she was discriminated against by Intercall, that Intercall wrongfully terminated her, and that Intercall's actions caused her stroke.


A court shall grant summary judgment under Rule 56(c) of the Federal Rules of Civil Procedure "if the pleadings, the discovery and disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c). The moving party first must show that no genuine issue of material fact exists. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to present evidence that a genuine issue of material fact compels a trial. Id. at 324. The non-moving party must offer specific facts that establish a genuine issue of material fact and may not simply rely on unsupported assertions, bare allegations, or speculation. See Ridgewood Bd. of Educ. v. N.E. ex rel. M.E., 172 F.3d 238, 252 (3d Cir. 1999). Also, the Court must consider all facts presented and the reasonable inferences drawn from them in the light most favorable to the non-moving party. See Pa. Coal Ass'n v. Babbitt, 63 F.3d 231, 236 (3d Cir. 1995).


Ms. Malloy moves for partial summary judgment on her breach of contract claim. Intercall moves for summary judgment as to each of Ms. Malloy's claims: (1) breach of express and implied contract, (2) age discrimination in violation of NJLAD, (3) retaliation in violation of NJLAD, and (4) intentional infliction of emotional distress.*fn1

A. Breach of Contract Claims

To establish a claim for breach of contract under New Jersey law, a plaintiff must show:

1) the existence of a contract, 2) a material breach of the contract by the defendant, and 3) damages resulting from the breach. See Fletcher-Harlee Corp. v. Pote Concrete Contractors, Inc., 421 F. Supp. 2d 831, 833 (D.N.J. 2006), aff'd, 482 F.3d 247 (3d Cir. 2007). Ms. Malloy asserts that the following email exchange ...

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