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 ...