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Terry Gray v. R.J. Reynolds Tobacco Company

January 13, 2011


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



Plaintiff, Terry Gray, commenced this action against defendants, R.J. Reynolds Tobacco Company ("R.J. Reynolds") and Carlos Morales ("Morales") (collectively, "Defendants"), alleging racial discrimination and retaliation in violation of 42 U.S.C. § ("Section") 1981 and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. § 10:5-1 et seq. (Dkt. entry no. 9, Am. Compl.) Defendants move for summary judgment in their favor pursuant to Federal Rule of Civil Procedure ("Rule") 56. (Dkt. entry no. 21.) Plaintiff opposes the motion. (Dkt. entry nos. 22, 23.)

The Court decides the motion on the papers without oral argument, pursuant to Rule 78(b). The Court, for the reasons stated herein, will grant the motion as to the Section 1981 claims. The Court will decline to exercise its jurisdiction with respect to the NJLAD claims, and will therefore dismiss those claims without prejudice with leave to reinstate those claims in state court.


I. Plaintiff's Employment at R.J. Reynolds

Plaintiff identifies himself as an African-American male. (Am. Compl. at ¶ 4.) He was employed by R.J. Reynolds as a sales representative, or "Territory Manager" ("TM") in the New Brunswick Division of R.J. Reynolds from 2005 until he left on short-term disability in March 2009; his employment formally terminated in October 2009. (Dkt. entry no. 21, Defs. Stmt. of Undisputed Material Facts ("Defs. Stmt.") at ¶¶ 4, 60-62, 68-76.) Plaintiff's responsibilities as a TM included calling on and servicing retail stores in the course of promoting R.J. Reynolds tobacco products, contracting with retailers for the merchandising of R.J. Reynolds products, and ensuring that the retail stores within his assigned territory had the proper representation and inventory levels of R.J. Reynolds products. (Id. at ¶¶ 5-6.)

Morales has been a Senior Division Manager ("DM") of the New Brunswick Division of R.J. Reynolds since January 2008. (Id. at ¶ 3.) Plaintiff, along with approximately eight other TMs, directly reported to Morales. DMs such as Morales are responsible for spending "Work With" days in the field with TMs for purposes of observation, oversight, training, and providing feedback. (Id. at ¶¶ 7-8.) TMs receive written feedback in the form of "Work With Reports" following each Work With day. (Id.) In addition to the Work With Reports, each TM's performance was assessed annually. (Id. at ¶ 10.) This annual performance evaluation assesses whether a TM met qualitative and quantitative goals, and these goals are the same for all TMs in a given division. (Id. at ¶¶ 11-13.)

Morales's predecessor, Tim Gillespie, had issued Plaintiff an Oral Warning on October 4, 2007, advising Plaintiff of several areas of deficiency, including accuracy in reporting brand distribution; accuracy in reporting store conditions; contract discrepancies, requirements, and non-compliance; and failure to follow management direction. (Dkt. entry no. 21, Defs. Br. Supp. Mot. for Summ. J. ("Defs. Br."), Ex. A-10, 10-4-07 Documentation of Oral Warning.)*fn1 Consistent with R.J. Reynolds policy, Plaintiff was given a Development Plan for addressing these deficiencies. (Id., Ex. A-11, 10-4-07 Development Plan.)

When Morales became Plaintiff's DM in early January 2008, he discussed the Oral Warning with Plaintiff in person. In a written report detailing Morales's first Work With day in the field with Plaintiff, Morales states that he "spent the first hour and a half discussing [the Oral Warning] with [Plaintiff]"

Morales issued a Written Reprimand to Plaintiff on April 3, 2008. (Id., Ex. A-14, 4-3-08 Written Reprimand.) The Written Reprimand was issued as the next corrective action following the Oral Warning with regard to Plaintiff's "failure to follow management instructions," e.g., failure to read corporate communications related to R.J. Reynolds promotional programs and initiatives and subsequently implement these programs and initiatives at the retail outlets assigned to Plaintiff. (Id.) Both Morales and Plaintiff signed the Written Reprimand. (Id.) Morales also issued Written Reprimands to two Caucasian TMs, Daylon Zimmerman and Art Lipson, for similar reasons around the same time Plaintiff received his Written Reprimand. (Id., Exs. C-4 & C-5, Written Reprimands; Pl. Dep. at 105:1-4.)

Plaintiff wrote a letter to Morales, copying both Morales's supervisor and the Sales Employment Practices Manager at R.J. Reynolds headquarters in Winston-Salem, North Carolina, disputing the bases for the Written Reprimand. (Id., Ex. A-16, 4-7-08 Letter from Gray to Morales ("4-7-08 Letter").) Plaintiff brought up several issues he had with Morales, including: (1) his surprise that the Oral Warning was documented in Plaintiff's performance review file, because Morales had suggested to him that their working relationship would begin with a "clear . . . slate"; (2) Morales's analysis of Plaintiff's assigned territory forming the basis for the Written Reprimand occurred while Plaintiff was on vacation, rather than during a Work With day; and (3) Morales had denied reimbursement of a meal to Plaintiff, and Plaintiff felt that the ensuing dispute "brought about the written reprimand" because Plaintiff had suggested to Morales that he would pursue the reimbursement issue with Morales's supervisor if Morales did not approve the reimbursement. (Id.)*fn2

The 4-7-08 Letter concluded: "I am deeply saddened by this Written Reprimand. At this time, I feel as though I am walking on egg shells. In view of all this, this may not be a healthy environment for me to perform my duties effectively." (Id.) The parties agree that the 4-7-08 Letter contains no reference to or allegations of discrimination of any sort, including racial discrimination. (Defs. Stmt. at ¶ 44; Pl. Stmt. at ¶ 44.)

A Work With Report pertaining to June 17, 2008, indicated that Plaintiff was not executing his basic job accountabilities, and Morales advised Plaintiff that he was failing to meet expectations. (Defs. Br., Ex. A-20, 7-9-08 Work With Report.) Morales issued a Final Written Reprimand on July 9, 2008, documenting corrective action being taken against Plaintiff for failure to satisfactorily perform job accountabilities and failure to follow management instructions, including failure to comply with the Development Plans created for Plaintiff following prior corrective actions. (Id., Ex. A-22, 7-9-08 Final Written Reprimand.) The Final Written Reprimand stated: "You must immediately attain and sustain an acceptable level of performance in the areas noted. . . . Failure to do so will result in termination of your employment." (Id.) Plaintiff refused to sign the Final Written Reprimand, "on protest." (Id.) The Final Written Reprimand was accompanied by a revised Development Plan setting forth action plans for Plaintiff to attain satisfactory job performance. (Id., Ex. A-23, Email from Morales to Plaintiff regarding July 2008 Development Plan.)

Plaintiff received an overall rating of "Fails to Meet Expectations" in his 2008 Performance Assessment. (Id., Ex. A-29, Pl. 2008 Performance Assessment.) While this assessment contains specific examples of Plaintiff's quantitative and qualitative shortcomings, based on sales data as well as Morales's Work With Reports, Plaintiff contends that these examples are based on "unfair and inaccurate Work Withs, . . . Performance Evaluations . . . and Written Reprimands." (Pl.Stmt. at ¶ 55.) He does not provide specific examples of alleged inaccuracies, but appears to suggest that the bases for Plaintiff's "Fails to Meet Expectations" rating were unfair in that Morales was the only person evaluating him.

Plaintiff's "Fails to Meet Expectations" rating in the 2008 Performance Assessment resulted in his ineligibility for a year-end bonus, in accordance with R.J. Reynolds policies. (Defs. Stmt. at ¶¶ 55-58; Pl. Dep. at 201:21-24.) Plaintiff contends that Defendants' denial of a year-end bonus was taken "[i]n retaliation for plaintiff's informing HR about defendant's [sic] Morales' abuse and hostility towards plaintiff," and alleges that Caucasian male co-workers who were "similarly situated received bonuses although their work was not up to par." (Am. Compl. at ¶ 28.) The record indicates that one co-worker, Daylon Zimmerman, received a rating of "Almost Achieves Expectations" and another, Art Lipson, was rated "Achieves Expectations." (Dkt. entry no. 22, Pl. Br., Ex. B-11 & B-12, 2008 Performance Assessments for Daylon Zimmerman and Art Lipson.) Presumably, both of these employees were then eligible for year-end bonuses.*fn3 Plaintiff thus also proffers that these Caucasian employees received bonuses as evidence of racial discrimination. (Am. Compl. at ¶ 28.) However, the Performance Assessments indicate that both Zimmerman and Lipson came closer to achieving certain quantitative goals than did Plaintiff. (Pl. Br., Exs. B-11, B-12 & B-13.)

Plaintiff and Morales met in March 2009 to review Plaintiff's 2008 Performance Assessment. (Defs. Stmt. at ¶ 60.) Plaintiff became upset when he realized that he was not going to be receiving a bonus for 2008 and left work for the day. (Id. at ¶ 61; Pl. Dep. at 138:1-7, 148:2-5.) Plaintiff sought medical intervention for his high stress level and did not return to work after reviewing the 2008 Performance Assessment with Morales, going on short-term disability leave. (Defs. Stmt. at ¶¶ 61-62; Pl. Dep. at 148:6-19.) Pursuant to R.J. Reynolds's short-term disability policy, after Plaintiff had been on leave for four months Morales sent a so-called "four month-out notification letter" advising that Plaintiff had not informed R.J. Reynolds of an expected return date and that it would be filling his position, but that if he became able to return to work, R.J. Reynolds would try to find a comparable position for him. (Defs. Stmt. at ¶¶ 63-67; Defs. Br., Ex. A-30, 7-10-09 Letter from Morales to Gray.)

Plaintiff notified R.J. Reynolds that he was able to return to work in September 2009 and took three weeks of vacation, such that he intended to return to work in October 2009. (Pl. Stmt. at ¶ 68; Pl. Dep. at 160:5-22.) During the time Plaintiff was on vacation, personnel from R.J. Reynolds offered him a TM position in Lenox, Massachusetts, which was the geographically closest comparable position to Plaintiff's former position. (Defs. Br., Ex. D, Bailey Decl. at ¶¶ 4-10.) Plaintiff declined the position, and ...

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