UNITED STATES DISTRICT COURT DISTRICT OF NEW JERSEY
December 30, 2010
GENENTECH INC., DEFENDANT.
The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
Plaintiff Laura Iovanella brings this employment discrimination action alleging that her supervisors at defendant Genentech, Inc. subjected her to illegal harassment based on her gender and her status as a single mother. Iovanella‟s complaint asserts five causes of action pursuant to the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1, et seq. ("NJLAD"): count 1 alleges gender discrimination; count 3 alleges retaliation for Iovanella‟s protected activities, including hiring a lawyer and filing an EEOC complaint; count 4 alleges discrimination resulting in a "hostile and/or abusive" work environment; count 6 alleges "intolerable" conditions of harassment in the workplace resulting in constructive discharge, and; (5) count 7 alleges discrimination based on Iovanella‟s familial status.*fn1
Genentech moves motion for summary judgment as to all five counts. For the reasons explained below, Genentech‟s motion for summary judgment is granted.
Iovanella was employed as a sales representative for Genentech, a biotechnology company, from March 2001 until March 2008, when she resigned. She worked primarily on sales of Nutropin, a growth hormone, and was responsible for developing contacts with doctors and making sales in assigned territory in New Jersey and New York. (Moving Br. 3-4.) Genentech does not have local sales offices and sales representatives are based out of their homes. (Id. 5.) In 2003, Iovanella was promoted from "clinical specialist" to "senior clinical specialist." In 2007, her base salary exceeded $99,000. (Moving Br., Certif. of Joshua R. Pini ("Pini Certif."), Ex. B.) According to Iovanella, from 2001 until 2006, she regularly "received excellent performance reviews, plus stock options and salary increases" (Compl. ¶ 2, D.E. 1) In early 2006, Genentech redistributed sales territories and accounts in its Liberty Division, where Iovanella worked. Genentech claims that the redistribution required Iovanella to "work harder in order to meet her sales goals"; Iovanella denies this, but acknowledges that Genentech began implementing more "policies and procedures" for sales representatives. (Iovanella Dep. 218:22-25, 219:1-3.) According to Iovanella, her work environment began changing dramatically in March 2006, when Wolfgang Ziegenhagen became the new manager of her sales group, which, in addition to Iovanella, included two men and five other women. Iovanella and Ziegenhagen soon clashed. As Iovanella explained in a 2006 email to Ziegenhagen, who previously worked at Pfizer Inc., their relationship had an "uncomfortable beginning. . . our styles are very different." (Pini Certif., Ex. J.)
An early flash-point involved Ziegenhagen‟s decision in June 2006 to deny Iovanella‟s request for a replacement BlackBerry. According to Iovanella, she was the only clinical specialist to have received a BlackBerry, and her former manager, Tom Sinnamon, had authorized it "because I was a single mom" and it would "give me better work/life balance." (Iovanella Dep. 172:2-4, 172:17-18, 173:24-25.) Ziegenhagen‟s supervisor, Craig Helms, a Genentech regional manager, testifies in his deposition that Genentech‟s policy is that "we did not want the sales representatives to have BlackBerrys [sic]" because they were supposed to spend their time interacting with customers. (Helms Dep. 49:6-14.) After he denied her request and learned that Iovanella had ordered a replacement anyway, Ziegenhagen wrote her an email stating, "representatives are not authorized to have BlackBerrys at this time. I do not understand why after we had discussed you would place an order?" (Pini Certif., Ex. I.)
After his arrival at Genentech, Zeigenhagen began conducting field rides with employees. In a "field contact report" from June 6, 2006 evaluating Iovanella, he notes that she demonstrated a "very effective" sales approach but also that she had difficulty demonstrating the "Nutropin Pen," which is the medicine‟s delivery device, thus made it appear that the pen was "not very easy to use." (Id., Ex. G.) Ziegenhagen‟s report suggests ways for Iovanella to avoid the problem in the future and also urges Iovanella, "sell competitively where you have an opportunity." (Id.)
A second field ride with Ziegenhagen on August 10, 2006, marked what Iovanella describes as the "critical event" of her employment. (Pl‟s Br. in Opp‟n 9.) According to Iovanella, Ziegenhagen arrived two hours early to their meeting place, then left her a voicemail saying to "[g]et here as soon as you can."*fn3 (Id. 9-10; Iovanella Dep. 149:21.) Iovanella states that Ziegenhagen‟s voicemail made her "flustered and frustrated and [she] left her house crying," and that, subsequently, she and Ziegenghagen argued and he criticized her work performance. (Pl‟s Br. in Opp‟n 10.) After the field ride, Ziegenhagen wrote a report discussing Iovanella‟s strengths, including her "effective probing and closing skills," and her weaknesses, including concerns about her communication style with him and her teammates. (Pini Certif., Ex. H.) The report also notes that he and Iovanella discussed: "the importance of spending the maximum amount of time in the field interacting with your accounts"; "my expectation and the expectation of Genentech for you and all the representatives to be in the field for a full work weak[sic] and calling on accounts during full working hours"; and his desire to "spend time calling directly on accounts" in order to "provide coaching, feedback, assistance with your career development, and support through Genentech resources." (Id., Ex. J.) In an email exchange the next month, Ziegenhagen repeats these concerns, stating that he and Helms "expect full field days from all representatives." Ziegenhagen also notes that "Yelling "I can‟t take your Pfizer bullshit‟ will not produce a successful conversation or understanding." (Id.)
During a third field ride together on October 19, 2006, Ziegenhagen told Iovanella that she would not receive a grant of discretionary stock options for the year. According to Iovanella, Ziegenhagen abruptly told her, "They want to send you a message," which she interpreted to mean Genentech management, including Ziegenhagen‟s supervisors. (Opp‟n 11.) In an email that day to Helms and Jill Genelza, a Genentech human resource manager, Ziegenhagen writes that he told Iovanella, "stock at Genentech was not a guarantee but was granted based on contribution and performance [and her] contribution to the team has been damaging. Her territory management, preparation and quality of sales interactions are poor." (Id., Ex. M.) According to Genentech, the decision not to grant Iovanella options was based on her "documented, on-going performance issues" (Moving Br. 9), and had been made in August 2006 by Ziegenhagen, Helms, and Lisa Brock, Helms‟ manager. (Pini Certif., Ex.N.) In an August 16 email discussing that decision, Brock told Ziegenhagen, Helms and Genelza that Iovanella‟s "level of effort is not optimal and she has been difficult through this transition in management," and that therefore no options were recommended for her. (Id.) Genelza states in her deposition that performance is one of two main factors in deciding whether to grant stock options and is measured not only by sales numbers, but also by "core competencies," including "things like applying technical expertise, community teamwork and collaboration." (Id.; Genelza Dep. 33:15-20.)
Iovanella does not dispute that Genentech based its decision to deny her stock options on alleged performance issues, but argues instead that Ziegenhagen‟s evaluations were "unfair and inaccurate" (Iovanella Dep. 225:10-25) and that Genentech relied on "patently false" information "despite significant evidence to the contrary." (Opp‟n 10-11.) Iovanella points to her successful business relationship with Dr. Alicia Romano, who held a multi-million dollar account with Genentech, to show that Ziegenhagen did not provide accurate information about her to Genentech, particularly when he claimed she was "not a team player." (Opp‟n 10.) After Iovanella lost Romano‟s account during Genentech‟s 2006 territorial redistribution, Romano allegedly objected about this to Ziegenhagen and temporarily withdrew her business from Genentech. (Id. 11.) According to Iovanella, the loss of the Romano account played a key role in Ziegenhagen‟s recommendation to deny her stock options. (Id.)
Iovanella also highlights the fact that, at the time of the stock options decision, she had achieved "102.3% of her (sales) target" for the year, compared to Genentech‟s "overall [sales] performance [of] 98%." (Compl. ¶ 4.) According to Iovanella, as of June 2006, she was "in the top 10" of Genentech‟s U.S. sales representatives and that this marked the "first time a representative who met quota received a 0 option award." (Opp‟n 10-11.) Iovanella acknowledges nonetheless that hitting 100% of a sales target represents a "flat" performance. (Iovenalla Dep. 122:2-4.) Genentech contends that Ziegenhagen expected her to be "growing the business, not simply maintaining the business." As such, Genentech characterizes Iovanella as essentially "coasting." (Oral Arg. Tr., November 30, 2010, 14:23-24, 15:24-25.)
When she found out that she would not receive stock options, Iovanella complained to Genelza, the human resources manager, on October 31 and November 3, 2006. The parties dispute whether Iovanella raised the issue of discrimination during these conversations. (Opp‟n 11; Reply Br. 12.) Iovanella testifies that she told Genelza that her "professionalism was being attacked and that I felt my options were unfairly denied," and added that she was "the only single mom on the team." (Iovanella Dep. 206:19-21, 208:8-9.) Genelza testifies that Iovanella spoke of a "hostile environment" and accused Ziegenhagen of "bullying" her and "singling [her] out," but that she did not "clarify what singling out meant. . . there didn‟t appear to be anything where she was being treated any differently. . .there appeared to be a difference in how she felt about his management style." (Genelza Dep. 129:8-18, 130:7-8, 131:14-132:1.) Genelza did not open a formal investigation, but "did speak with a number of people." (Id. 130:20-23.)
After she complained to Genelza, Iovanella contends that "a pattern of activity" began in which Genentech "essentially waltzes her out the door because of her status. . . it‟s subtle retaliation for over a year." (Oral Arg. Tr. 45:25-46:3.) In her 2006 performance review, which was completed in early 2007, Ziegenhagen rated Iovanella as "partially meets expectations," the second lowest of five possible ratings. (Pini Certif., Ex. S.) Iovanella claims that "33 out of 35 other field sale representatives" at Genentech who also received the partially meets expectations rating were given a "market adjustment" of their salaries in excess of $10,000, but not her. (Opp‟n 13.) However, Iovanella does not provide a gender breakdown of the 33 sales representatives. The record also shows that, within her own sales group, only Iovanella received a "partially meets expectations" rating and, further, that Ziegenhagen rated Iovanella‟s colleagues, including all other female representatives he supervised, higher than her. (Def‟s Statement of Uncontested Material Facts ¶ 66-68; Pl‟s Response to Def‟s Statement of Uncontested Material Facts ¶ 66-68.)
Iovanella received an increase in her base salary in March 2007. (Id. 70.) In May 2007, after Ziegenhagen made "negative comments" to her and "deliberately moved away from her at a sales meeting," she called Genentech‟s human resources manager James Deslonde, who worked at Genentech‟s employee relations group, to inform him that she had hired counsel. (Opp‟n 14; Iovanella Dep. 250:9-11, 251:25.) According to Iovanella, Deslonde asked her, ""[A]re you planning on staying with the company?" and told her, ""sometimes when things go legal, the company takes a different [tack]." (Id. 252:2-10.) In a letter to Deslonde dated May 4, 2007, Iovanella‟s lawyer alleged economic retaliation against Iovanella for her complaints to Genentech‟s human resources and asserted that Ziegenhagen‟s "rigid" schedule for sales representatives constituted "a marked departure from the flexible working hours that were encouraged by her prior supervisor and/or a hallmark of the Genentech culture and values." (Pini Certification, Ex. W.) The letter also states that Ziegenhagen had exhibited an animus against Iovanella "apparently based upon her status as a female and a working mother," and demanded that Genentech change her manager. (Id.) Genentech asserts it first learned that Iovanella was asserting gender discrimination and retaliation from the letter, and that Deslonde investigated her complaint by interviewing Ziegenhegan and Iovanella‟s co-workers. (Reply Br. 14-15.) According to Genentech, Deslonde found no evidence of retaliation or gender bias. Iovanella calls the investigation a "sham."
Beginning in July 2007, Iovanella took a paid six-week sabbatical, and then went on medical leave for one week. During this time, Iovanella claims that her work environment became more hostile because of "a scathing email" from Ziegenhagen that accused her of engaging in "behaviors‟ that did not meet expectations." (Opp‟n 15.) In August 2007, Iovanella filed a charge with the EEOC complaining of gender discrimination and retaliation. (Iovanella subsequently withdrew the charge in June 2008.) She claims she became ill and had to take anti-depressant medication. (Opp‟n 15). Genentech, she contends, should have "determined the nature of extent of her physical manifestations associated with Ziegenhagen‟s creation of this hostile work environment." (Opp‟n 15-16.)
In the late fall of 2007, a doctor asked Iovanella to visit a patient‟s home to assist with a Genentech product. (Opp‟n 17.) According to Iovanella, the visit was intended to help a "child in need" and was similar to a previous visit that won her recognition from Genentech as a "2007 Best Patient Story." (Opp‟n. 16-17.) She claims, however, that this time Ziegenhagen and Helms initiated an internal compliance investigation of her in retaliation for her complaints to human resources. (Opp‟n 17.) According to Genentech, Ziegenhagen wrote to Helms and Deslonde in December 2007 that another sales representative reported that Iovanella went to a patient‟s home "to teach a patient Nutropin." (Pini Certif., Ex. GG.) In the email, Ziegenhagen writes, "teaching patients is against company compliance guidelines. . . I am concerned with the serious nature of this event." (Id.) Genentech claims that neither Ziegenhagen nor Helms were involved in determining if there would be a compliance investigation, and Ziegenhagen states that, "[i]t was left to the compliance department." (Ziegenhagen Dep. 90-91.) Iovanella was cleared in the subsequent investigation, but she argues that it could have resulted in her termination.
Iovanella does not dispute that she received 600 stock options in 2007 and a $2,000 salary increase in March 2008, just before she resigned, but she complains that she "did not receive a corporate bonus of several thousand dollars." She also complains that Ziegenhagen did not provide her with a timely performance review, forcing her to look her review up online. (Opp‟n 17.) According to Iovanella, Ziegenhagen‟s "failure to follow procedure only as it related to [her]" and her realization that she was "unable to continue in her position due to the hostility" of Genentech‟s management left her with no choice "than to resign." (Opp‟n 17-18.) In an email to Ziegenhagen on March 14, 2008, Iovanella gave two weeks notice, saying that he had treated her "less favorably than others under your supervision. . .especially male subordinates both in terms of working conditions and compensation" and had "constructively discharged me from my job." (Pini Certif., Ex. KK.)
Iovanella commenced this action in state court in January 2009, complaining of discrimination based on her gender and her "family status" as a single mother. Genentech removed the case to federal court. [D.E. 1.]
Standard of Review:
Summary judgment is appropriate when the moving party shows that "there is no genuine issue as to any material fact [and] the movant is entitled to judgment as a matter of law." Fed R. Civ. P. 56(c). A dispute about a material fact is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
In opposing summary judgment, Iovanella must set forth "specific facts showing that there is a genuine issue for trial." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 n. 11 (1986). The evidence must be sufficient for a jury to return a verdict for Iovanella; evidence that is not probative cannot suffice. Ambruster v. Unisys Corp., 32 F.3d 768, 777 (3d Cir.1994); see also Anderson at 248. In deciding the motion, the Court must view the facts in the light most favorable to Iovanella, and must accordingly draw all inferences in her favor. See Gray v. York Newspapers, 957 F.2d 1070, 1078 (3d Cir. 1992).
Discussion and Analysis:
a). Iovanella's Familial Status Discrimination Claim:
Count 7 of Iovanella‟s complaint alleges that she was discriminated against because of her familial status, namely that she is a single mother.*fn4 (See Opp‟n 2, 7, 8, 22.) Genentech argues that the NJLAD provides no cause of action for alleged employment discrimination based on familial status. (Moving Br. 25.)
Familial status is defined in § 10:5-5(ll) of the N.J.S.A. as a set of relationships to a child, including "being the natural parent of a child" under 18, which includes Iovanella. (Opp‟n 23.) The term "familial status" appears in three other sections relevant to Iovanella‟s action. Section 10:5-3provides an "expression of policy" in which the Legislature:
finds and declares that practices of discrimination against any of its inhabitants, because of. . . familial status. . . threatens not only the rights and proper privileges of the inhabitants of the State but menaces the institutions and foundation of a free democratic State. (emphasis added).
Section 10:5-4, which has been held to set "out the general sweep of the entire statutory scheme," Mt. Holly Citizens in Action, Inc v. Twp. of Mt. Holly, 2009 U.S. Dist. LEXIS 100032 *22-24 (D.N.J. 2009), states that: the opportunity to obtain employment, and to obtain all the accommodations, advantages, facilities, and privileges of any place of public accommodation, publicly assisted housing accommodation, and other real property without discrimination because of. . . familial status. . . is recognized as and declared to be a civil right. (emphasis added).
A third section, §10:5-12(a) et seq., defines unlawful discrimination and unlawful employment practices. Subsections 10:5-12 (g-i), (k), and (o), which all relate to discrimination in, inter alia, the sale and lease of real property, include familial status as a protected classification.
But §10:5-12(a), which enumerates unlawful employment practices, does not include family status as a protected classification. Section10:5-12(a) states that it is unlawful for:
an employer, because of the race, creed, color, national origin, ancestry, age, marital status, civil union status, domestic partnership status, affectional or sexual orientation, genetic information, sex, gender identity or expression, disability or atypical hereditary cellular or blood trait of any individual. . . to refuse to hire or employ or to bar or to discharge or require to retire, unless justified by lawful considerations other than age, from employment such individual or to discriminate against such individual in compensation or in terms, conditions or privileges of employment.
As its plain language makes clear, § 10:5-12(a) does not prohibit discrimination based on familial status in relation to employment practices. Significantly, it is §10:5-12, and not §§ 10:5-3 or 10:5-4, that has been held to create causes of action for discrimination under the NJLAD. Mt. Holly Citizens in Action *24. Iovanella offers authority to support her position that the statute supports a cause of action for familial status discrimination, but the Court does not find it is persuasive.
Both sides rely on Bumbaca v. Twp. of Edison, 373 N.J. Super. 239 (App. Div. 2004), which is one of the few cases to analyze familial status and the NJLAD. The case involved a claim that nepotistic hiring constituted discrimination based on familial status and therefore was an unlawful employment practice. 373 N.J. Super. 245. Iovanella correctly describes the court‟s finding that nepotism cannot "be sustained as a cause of action pursuant to the statute," but she gets Bumbaca only half-right. The court also holds that familial status itself is not a protected category for the purpose of unlawful employment practices under § 10:5-12(a). Id. at 249 (holding "that the term familial status, as defined, does not include the concept of nepotism and, further, plays no role in the statutory definition of an unlawful employment practice.") Bumbaca also notes that other cases cited as supposedly supporting a claim of workplace discrimination based on familial status all "involved a claim of employment discrimination based on a prohibited category, such as race, age or gender, specifically listed in the [NJLAD] sections that address employment discrimination," and that the references in those cases to familial status were "simply part of a description of the general purposes of the LAD as set out in N.J.S.A. 10:5-3." Id. at 250.
Here, Iovanella relies on similarly unpersuasive authorities. One case discussed in her opposition, J.M. v. E. Greenwich Twp. Bd. of Educ., 2008 WL 819968 (D.N.J. 2008), involves a claim of a "hostile education environment." Iovanella‟s reliance on this decision is perplexing. J.M. appears to mischaracterize the holding of a Third Circuit case-a case that, in turn, Iovanella provides an incorrect citation for-as stating that "familial status" supports a hostile work environment claim under the NJLAD. J.M. 8 (citing A.W. v. Jersey City Pub. Sch., 486 F.3d 791 (3rd Cir. 2007)). It is true that A.W. mentions familial status, but it is in the context of a § 1983 claim, and familial status comes up only in passing as part of a list of protected categories. A.W. does not discuss familial status and the NJLAD; nor, in any detail, does J.M. Another case relied on by Iovanella, Gavura v. Pennsylvania State House of Representatives, 55 Fed. Appx. 60 (3rd Cir. 2002), deals with a discrimination claim under Title VII that includes an allegation that an employer treated married men and married women differently in offering benefits. Gavura provides no support for a claim based on familial status under the NJLAD.
The Court‟s own review of the case law has failed to locate authority supporting Iovanella‟s position. At oral argument, Iovanella‟s attorney argued that the Court should infer familial status as a protected category under § 10:5-12(a). (Or. Arg. Tr. 43:1-20.) However, analysis of the NJLAD argues against such an inference. Familial status was not included in the NJLAD when it first was drafted in 1945 and, despite four intervening amendments, the term was not added to the statute as a protected classification until 1992, and then only "for the stated purpose of prohibiting discrimination in housing on the basis of familial status." Bumbaca at 249. (internal quotations omitted). Since 1992, the Legislature has amended the statute, but never added familial status to 10:5-12(a), although it has added familial status to other sections of the statute. As noted in Bumbaca, the Legislature‟s focus on familial status in the context of the NJLAD has remained fixed on discrimination arising in housing and the rental and sale of property. Id. at 249.
Iovanella has not provided a legal basis for this Court to infer, or more boldly, to write in familial status into provisions of the NJLAD where the term does not appear. For these reasons, count 7 of Iovanella‟s complaint alleging employment discrimination based on familial status in violation of the NJLAD must be dismissed.
b). Iovanella's Gender Discrimination Claim:
Iovanella alleges in count 1 of her complaint that Genentech discriminated against her based on her gender. Here the statute is clear: § 10:5-12(a) prohibits an employer from firing or otherwise discriminating against an employee in terms of compensation, conditions or privileges of unemployment based on sex, absent a lawful justification. However, employers are not prohibited from discriminating among individuals "on the basis of competence, performance, conduct or any other reasonable standards." § 10:5-2.1.
Iovanella‟s discrimination claim under the NJLAD is governed under the evidentiary burden-shifting paradigm first outlined in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Ditzel v. Univ. of Med. and Dentistry of New Jersey, 962 F. Supp. 595, 602 (D.N.J. 1997); Mandel v. UBS/PaineWebber, Inc., 373 N.J. Super. 55, 69 (App. Div. 2004). Under the McDonnell Douglas framework, Iovanella initially must make out a prima facie case of gender discrimination. Id. To meet that burden where, as here, there is no direct evidence of discrimination, Iovanella must show that she: (1) is a member of a protected group; (2) was qualified for her job; (3) was negatively affected by the Genentech's employment decisions, and; (4) was treated less favorably than employees not within her protected class. Mandel, 373 N.J. Super 70. Such a showing gives rise to an inference of discrimination, shifting the burden of production to Genentech to articulate a nondiscriminatory reason for its unfavorable employment action. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.1994).Genentech "need not prove that the tendered reason actually motivated its behavior, as throughout this burden-shifting paradigm the ultimate burden of proving intentional discrimination always rests with the plaintiff." Id. (citing Texas Dep‟t of Cmty. Affairs v. Burdine, 450 U.S. 253 (1981)). If Genentech satisfies its "relatively light burden," then the burden "rebounds" to Iovanella to "show by a preponderance of the evidence" that Genentech‟s explanation is pretextual."
To survive summary judgment, Iovanella must submit evidence: (1) casting "sufficient doubt upon each of the legitimate reasons proffered by" Genentech so that a factfinder "could reasonably conclude that each reason was a fabrication," or; (2) allowing the factfinder "to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Id. at 762. To discredit Genentech‟s proffered reason, Iovanella "cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Id. at 765. Rather, Iovanella must show "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in Genentech‟s proffered reasons such that a reasonable factfinder "could rationally find them "unworthy of credence. . . and hence infer that the employer did not act for [the asserted] non-discriminatory reasons." Id. (internal quotations omitted).
In the argument section of her opposition, Iovanella cites to case law dealing with gender discrimination claims under the NJLAD, but fails specify how they apply to her case. (Opp‟n 19.) This leaves the Court to its own search of the record.*fn5 Based on its review, the Court finds that Iovanella has failed to make out a prima facie case of gender discrimination under the NJLAD.
Iovanella‟s complaint alleges that, after Ziegenhagen became her manager, he began to criticize her and gave her a "partially meets expectations" review "as a result of her gender." (Compl. ¶ 4.) This review, in turn, led to "smaller salary increases and smaller stock options than her peers." (Id. ¶ 5.) According to Iovanella, and not anything that he actually said or wrote, Ziegenhagen saw her "as an assertive or difficult female whom he wanted to control." (Pini Certif. Ex. EE.) Iovanella concedes that she never heard Ziegenhagen make a sexist remark, but rather told in emails that, "I treat everybody with the same with the same standard." (Iovanella Dep. 265:12-15, 345:11-20.) Iovanella, however, says she believes that "an equitable manager notes that people are different, and I don‟t think he did." (Id 345:19-20.) In an email to Deslonde on October 8, 2007, she explains that "discrimination takes subtle forms. . . it is the subtleties I ask you to appreciate." (Pini Certif. Ex. EE.) Apparently as evidence of the subtleties of Genentech‟s gender bias toward her, Iovanella points to Ziegenhagen‟s alleged failure to forward emails that reflected positively on her work (Iovanella Dep. 258:4-9), his "tone of voice," and the fact that he "highlights" males and hired a male worker. (Id. 259:19-22.) She states that Ziegenhagen sent her a book about self-composure and alludes to "subtle physical behavior," specifically a single 2006 meeting during which Ziegenhagen allegedly changed his seat to move away from her. (Iovanella Dep., (Id. 258:18-25, 267:11-15.) Iovanella acknowledges, she can only "speculate" as to why Ziegenhagen changed his seat, explaining, "it felt like [he] detested me so much." (Id. 183:22-184:8.) Finally, she accuses Ziegenhagen of singling her out by, among other things, denying her flexible hours.
Iovanella, on this record, has established that she was qualified for her job and as a female, is a member of a protected class, and so she satisfies the first two prongs of the test for a prima facie case of gender discrimination. Arguably, her "partially meets expectations" review and denial of stock options qualify as a negative employment action, which the Supreme Court has defined as "a decision causing a significant change in benefits." Burlington Indus., Inc. at 761. However, Iovanella still fails to satisfy the fourth prong of the test by showing that she was treated less favorably than others in her protected class. For example, she states that the denial of stock options "was not directed against 33 out of 35 other field sale representatives," who were also rated partially meets expectations (Opp‟n. 13), but she does not indicate the gender of members of that group or that she was treated differently than male sales representatives. Moreover, none of the 33 people she references were in Ziegenhagen‟s sales group.
Even if she could show that male sales representatives in her group were treated more favorably, Iovanella still has not produced sufficient evidence to survive summary judgment by casting doubt on Genentech‟s proffered, legitimate explanation for its actions. Genentech insists that the stock options decision, as well as other decisions affecting Iovanella‟s salary and bonuses, all were based on Iovanella‟s documented performance issues. For example, Ziegenhagen‟s June and August 2006 field reports, written prior to the stock option decision, clearly identify problems with her work, including difficulty demonstrating the Nutropin Pen and the need for her to spend more time in the field. While she does not dispute that Genentech based its decisions on her alleged performance problems, Iovanella contends that management failed to see through Ziegenhagen‟s "patently false" information, and points to her "102%" sales performance in 2006 as evidence that she merited a better evaluation. But as she concedes, she barely outperformed the minimum sales performance of 100%, and, as Genentech states, the company expected her to do "the things that would maximize her profitability to the firm." (Oral Arg. Tr. 15:16-20.)
Iovanella also does not point to evidence that a single male employee in her group had a less demanding or even a different schedule. Rather, the record indicates that Ziegenhagen began enforcing a policy that all clinical specialists under him, both male and female, had to work regular hours in the field. The record also shows that Ziegenhagen included specific praise for Iovanella in his field reports and forwarded an email to other employees in the Liberty Group that praised Iovanella‟s success in "leveraging" managed care contracts. (Pini Certif., Ex. K.)
Indeed, Iovanella has adduced no facts to support her claim that Ziegenhagen acted with discriminatory animus toward her based on her gender. It seems that, as she states in her deposition, Iovanella‟s problem with Ziegenhagen was not that he treat her differently, but that he treated everyone "equally." According to her, "an equitable manager notes that people are different, and I don‟t think he did." Iovanella may be right, but she nonetheless has failed to establish a prima facie case of discrimination under the NJLAD that Ziegenhagen or any manager at Genentech discriminated against her because she is female.
Finally, the Court notes that Iovanella‟s opposition appears to characterize her complaint as a "sex plus" claim eligible for a different sort of analysis. (Opp‟n 23-24.) The Court declines to make this analysis for several reasons. First, Iovanella raises the possibility of a sex plus argument in passing, and only in the mislabeled section of her opposition that deals with her familial status claim. Any possible sex plus claim by Iovanella based on her familial status employment discrimination must fail for the reasons discussed above. Second, as stated in one of the two authorities that Iovanella cites on this issue, a sex plus discrimination claim "does not allege that the employer discriminated against a protected class as a whole, but rather that the employer disparately treated a sub-class within the protected class," and such a claim cannot succeed unless "there is a corresponding sub-class of members of the opposite gender." Pullar v. Independent School District No. 701, 582 N.W.2d 273, 277 (Minn. Ct. App. 1998). That case, from a Minnesota appellate court, involved a claim of gender discrimination based on an employer‟s alleged practice of treating men and women with children differently. Here, Iovanella does present any evidence that Genentech treated her differently than male employees, or for that matter, from female employees, regardless of marital or parental status.
Consequently, Iovanella‟s charge of gender discrimination, and her sex plus argument, both fail, and the Court orders summary judgment granted to Genentech as to count 1 of the complaint.
c). Iovanella's Retaliation Claim:
Count 3 of Iovanella‟s complaint alleges that Genentech retaliated against her for her protected activities, including hiring a lawyer and filing an EEOC charge in August 2007. Section 10:5-12(d) of the NJLAD prohibits "reprisals against any person because that person has opposed any practices or acts forbidden" under the statute (i.e., sex discrimination), or "because that person has filed a complaint" under the act. To establish a prima facie case of discriminatory retaliation, Iovanella must demonstrate that: (1) she engaged in a protected activity known by Genentech; (2) Genentech took an adverse employment action against her after or contemporaneous with her protected activity, and; (3) a casual link exists between Iovanella‟s activity and Genentech‟s adverse action. See Abramson v. William Paterson College of New Jersey, 260 F.3d 265, 286 (3d Cir. 2001); El-Sioufi v. St. Peter‟s Univ. Hosp., 382 N.J.Super. 145, 175 (App. Div. 2005.) Once Iovanella establishes a prima facie case of retaliation, the burden then shifts to Genentech to produce a legitimate, non-discriminatory reason for the adverse employment action. Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989). If Genentech meets its burden, then Iovanella must point to either direct or circumstancial evidence to either disbelieve Genentech‟s proffered legitimate reasons or to believe that "an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer‟s action." Fuentes 32 F.3d 764.
Here, Iovanella argues that her conversations with Genelza in 2006 involved a formal discrimination complaint and thus constituted a protected activity. Genentech disputes this characterization, noting Genelza‟s testimony that Iovanella could not say why she was being singled out, as well as Iovanella‟s testimony that she "did not adopt discrimination as the explanation for her performance difficulties until sometime in April 2007." (Reply Br. 12; Iovanella Dep. 260-3, 270:6-13.) Assuming, arguendo, that Iovanella‟s October 2006 conversations with Genelza constituted a formal complaint and that Iovanella has satisfied the first prong of a prima facie case, Iovanella still fails to show that she suffered an adverse employment action after or contemporaneous with her complaint. Her conversations with Genelza came after Genentech‟s territorial reorganization, after Ziegenhagen‟s decision to deny her BlackBerry request, and after the decision denying stock options was disclosed to her. Significantly, Ziegenhagen documented his criticisms of Iovanella‟s job performance-which Iovanella concedes were the basis for Genentech‟s stock options decision and which were repeated in various forms until she resigned-in field reports from June and August 2006. These reports were written well before Iovanella complained to Genelza. Genentech argues that these same performance issues were the basis for Iovanella‟s "partially meets expectations" evaluation, which she claims caused her to lose a salary adjustment of more than $10,000. But even if this evaluation is viewed as an adverse employment action that resulted form her complaints to Genelza, Iovanella still cannot defeat summary judgment because she has failed to adduce evidence showing Genentech‟s proffered reasons were pretextual. Furthermore, Iovanella‟s claim that Genentech retaliated against her during this period is directly undermined by the fact that, as she concedes, she received a salary increase in March 2007 based on Ziegenehagen‟s recommendation. (Reply Br. 13; Pini Certif. LL.)
Iovanella also points to a spring 2007 conversation with Deslonde after she retained counsel in which she claims that Deslonde "made a direct threat" to her job by allegedly asking her if she intended to remain at Genentech and telling her that the company "takes a different tack" when "things go legal." (Genentech argues that Deslonde did not have management authority over Iovanella; Deslonde testifies that he does not recall making the statement.) Iovanella correctly points out that an adverse employment action may include action that would dissuade "a reasonable worker from making or supporting a charge of discrimination." Burlington Northern v. White, 548 U.S. 53, 67-68 (2006). But even viewed in the light most favorable to Iovanella‟s, Deslonde‟s alleged comment is too vague to constitute an adverse employment action. Without more, it cannot reasonably be construed as a direct threat to Iovanella‟s job, or even as clearly implying that she will suffer a negative consequence. And the Court again notes that other evidence in the record that undermines Iovanella‟s retaliation claim, including that she took a six-week paid sabbatical starting in July 2007 and received a grant of 600 stock options in October 2007.
Iovanella claims another significant act of retaliation occurred after she filed her EEOC in August 2007. According to her, Ziegenhagen and Helms launched a compliance investigation against her later that year in retaliation for her complaints. (Opp‟n 16-17.) The record shows that, in December 2007, Ziegenhagen and Helms informed Genentech‟s management about a home visit by Iovanella to a patient. Ziegenhagen writes in an email that he had serious concerns about the incident, which was reported to him by another sales representative. (Pini Certif., Ex. HH.) However, both he and Helms testify that they did not play a role in determining whether to initiate a compliance investigation of Iovanella, who subsequently was cleared of any violation. Iovanella has not shown that a casual link between her EEOC complaint and the compliance investigation months later. However, assuming, arguendo, that Iovanella has satisfied a prima facie case of retaliation based on the compliance investigation, she still fails to cast sufficient doubt on Genentech‟s explanation for the investigation or to proffer sufficient evidence demonstrating that "invidious discriminatory reason" motivated Genentech‟s actions. Likewise, she does not produce evidence showing that her "partially meets expectations" performance evaluation for 2007 resulted because of her retaining counsel or filing an EEOC complaint. Indeed, her 2007 rating was unchanged from 2006. In preparation for the 2007 review, Ziegenhagen submitted an evaluation noting Iovanella‟s ongoing performance issues, including alleged problems with teamwork, as well as positive traits, including a notation that Iovanella is "a very capable individual." (Pini Certif., Ex. II.) After the review, Iovanella received a pay increase.
In sum, the Court concludes that Iovanella has not established a prima facie case of retaliation, and that even had she done so, her evidence does not demonstrate that Genentech‟s reasons for its "complained of" actions are pretextual. Accordingly, summary judgment as to Iovanella‟s retaliation claim in count 3 of the complaint is granted.
d). Iovanella's hostile work environment and constructive discharge claims.
Count 4 of Iovanella‟s complaint alleges that Genentech created a hostile work environment by harassing her based on her gender and familial status. To bring a hostile work environment claim under the NJLAD, Iovanella must show that the conduct of which she complains would not have occurred but for her protected characteristic, and that the conduct was severe and pervasive enough to make a reasonable woman in her position believe that her conditions of employment had been altered and her working environment was hostile or abusive. Dietzel, 962 F.Supp 603 (citing Lehmann v. Toys "R‟ Us, Inc., 132 N.J. 587, 603-604 (1993)).
Because Iovanella has failed to show that Genentech discriminated against her based on her gender, and because Iovanella‟s claim of familial status discrimination cannot be sustained under the NJLAD, Iovanella cannot satisfy the test for a hostile work environment. Put simply, Iovanella has failed to establish that she faced any underlying discrimination based on a protected characteristic. Moreover, even if Iovanella could show that her gender was the occasion for Genentech‟s complained-of conduct, her grievances still do not approach the level of "severe and pervasive" necessary to sustain her claim.
New Jersey courts treat hostile work environment claims the way the Supreme Court treats similar claims under Title VII. Srgo v. Bloomberg L.P., 331 Fed. Appx. 932, 941 (3rd Cir. 2009). Under this standard, Iovanella can establish severe and pervasive conduct by a showing that her workplace was permeated with "discriminatory intimidation, ridicule, and insult." Id. (citing Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993)). In assessing a hostile environment claim, the court looks to all the circumstances, including the "frequency of the discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an employee's work performance." Id. (internal citation omitted).
Here, Iovanella‟s grievances-including, inter alia, Ziegenhagen‟s denial of her BlackBerry request, his alleged seat change at a meeting, his arriving early to their August 2006 field ride, his requiring Iovanella to work in the field all day, and his alleged failure to forward a positive email about her-cannot, even considered in the aggregate, establish a workplace full of "discriminatory intimidation, ridicule, and insult." On the contrary, the record shows that Iovanella faced the same employment expectations as other sales representatives in her group. She chafed at these requirements and she disagreed with Ziegenhagen‟s management style, and it appears that as a single mother, she should be provided with more, or different, treatment than that given to other sales representatives. However, the NJLAD neither mandates an ideal workplace nor prohibits employers from what might be considered micromanaging, or from setting stringent work requirements.
Iovanella‟s claim of constructive discharge in count 6 of the complaint, interwoven as it is with her claim of hostile work environment, also founders. To establish constructive discharge, Iovanella must show that Genentech "knowingly permitted intolerable conditions such that a reasonable person would feel compelled to resign," with intolerability assessed as "whether a "reasonable person‟ would have felt. . . no choice but to resign." Connors v. Chrysler Financial Corp., 160 F.3d 971, 975-76 (3rd Cir. 1998) (internal quotations omitted). A claim for constructive discharged requires Iovanella to show "more facts and worse conduct than a discrimination complaint in order to state a claim under the [NJLAD]." Devine v. Prudential Ins. Co. of America, 2007 WL 1875530 at 25 (D.N.J. 2007);see also Shepherd v. Hunterdon Developmental Center, 174 N.J. 1, 28 (2002) (noting that constructive discharge requires "not merely "severe or pervasive‟ conduct," but contemplates conduct that is "outrageous, coercive and unconscionable") (internal citation omitted). Additionally, Iovanella must have done all that was "reasonably necessary to remain employed" rather than just quit. Shepard 174 N.J. 29.
Iovanella claims she was forced to resign in March 2008, pointing for support to: "unique schedules that differ from that of her co-workers"; "unsubstantiated performance ratings"; "unsubstantiated allegations of compliance violations"; "reduced pay increases, bonuses and benefits"; "detrimental alteration to sales territories benefitting male counterparts"; "direct threats" to her job"; "a direct animus toward working mothers," and; "unsubstantiated allegations of compliance violations." (Opp‟n 37.) Iovanella also cites being put on a performance improvement or development plan, as well as Ziegenhagen‟s "failure to follow procedure only as it related to [her]," including that she had to look up her 2007 performance review online.
The record shows that there is no genuine dispute as to a number of Iovanella‟s key assertions. The problem is what she is asserting. Iovanella does not complain that she had to work a different schedule than her counterparts; rather, she complains that Ziegenhagen did not give her the flexibility she wanted. She charges that Genentech "detrimentally altered" her sales territory, but fails to acknowledge that the realignment took place before any of the complained of discrimination occurred. She also fails to produce evidence that male salesmen disproportionately benefitted from the realignment or from any other decision by Ziegenhagen. Iovanella claims that her performance ratings were unsubstantiated, but does not offer evidence sufficient to cast doubt on Ziegenhagen‟s repeated and well-documented criticisms of her work. Deslonde‟s comment about Genentech "taking a different tack" when "things go legal" is little more than innuendo. And nowhere does Iovanella point to an action or comment by Genentech that bespeaks a "direct animus" toward women or single mothers. Rather, Iovanella objected to Ziegenhagen‟s treatment at least partly because he treated her "with the same standard" as everyone else.
Iovanella fails to show discrimination "severe and pervasive" enough to establish a hostile work environment, and falls shorter still of demonstrating the "intolerability" required for constructive discharge. Indeed, as the record shows, in the year leading up to her discharge, Iovanella received a grant of stock options, took a six-week paid sabbatical and received a salary increase. Nowhere does Iovanella point to conduct by Genentech that approaches being so "outrageous, coercive and unconscionable" that a reasonable person would feel compelled to resign. Iovanella has not made out a prima facie case of constructive discharge.
For these reasons, the Court grants summary judgment as to counts 4 and 6 of her complaint.
The Court has scrutinized the record, and has carefully examined the authority that supports Iovanella‟s arguments. While not doubting Iovanella‟s convictions, the Court concludes that she has failed to make out a claim of discrimination under the NJLAD. For the reasons stated above, defendant Genentech‟s motion for summary judgment as to counts 1, 3, 4, 6, and 7, which constitute the remaining counts of the complaint, is granted.
Katharine S. Hayden, U.S.D.J.