The opinion of the court was delivered by: Debevoise, Senior District Judge
This matter comes before the Court on identical Complaints filed by Plaintiff Marco Giunta in the Superior Courts of New Jersey for Bergen and Morris counties, alleging that his termination of employment by Defendant Accenture, LLP ("Accenture") violated the New Jersey Law Against Discrimination ("NJLAD") (Count One), N.J.S.A. 10:5-1, et. seq., and the Americans with Disabilities Act ("ADA") (Count Two), 42 U.S.C. § 12101 et. seq. The Complaints also seek payment of various benefits allegedly withheld by Accenture, including a 2007 long-term incentive equity bonus of $230,000 in Accenture Stock (Count Five) and both cash and equity bonuses for the period between the end of the 2007 fiscal year and the date of Mr. Giunta's termination (Counts Six and Seven).*fn1 Accenture removed both Complaints on the grounds that this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332.
Accenture now moves for summary judgment on Counts One, Two, Five, and portions of Counts Six and Seven of the Complaint. For the reasons set forth below, the Motion will be granted in part and denied in part. Count One will be dismissed because although Mr. Giunta established a prima facie case under the NJLAD, he failed to show that Accenture's company-wide restructuring was a pretext to discriminate against him. Count Two will be dismissed because Mr. Giunta failed to establish a prima facie case under the ADA. Count Five will not be dismissed because Accenture's arguments are repetitious of those that the Court explicitly rejected in its January 23, 2009 Opinion denying Accenture's Motion for Reconsideration. Counts Six and Seven will be dismissed because Mr. Giunta rejected the terms of the 2008 Compensation Model under which he would have received his bonuses for the period between the end of the 2007 fiscal year and the date of his termination. Furthermore, even if Mr. Giunta had accepted the terms of the 2008 Compensation Model, he has failed to provide any evidence that he met his target sales requirement to receive a bonus thereunder.
A. Termination and Complaint
Marco Giunta is a former employee of Accenture. He worked there from June 17, 2002 until March 12, 2008, at which point he lost his job due to a company-wide restructuring. Prior to his termination, Mr. Giunta held the position of Outsourcing Sales Director, helping large companies establish and maintain their computer operating platforms. Accenture eliminated "the Outsourcing Sales position based on its desire to ship smaller, less complex sales deals to India." (Def.'s Br. Summ. J. 11.)
At the time of his termination, Mr. Giunta's base compensation was $230,000 per year. In addition, he was eligible for Paid Time Off ("PTO") and performance-based bonuses. Mr. Giunta's 2007 and 2008 Compensation Models provided that he would receive an "annual incentive" cash bonus and "long term incentive" equity bonus, each equal to his base pay, if he met his yearly target of $40 million in sales. (Def.'s Br. Summ. J, Ex. O, MM.) The terms of the equity bonus indicated that it would be paid at the completion of the fiscal year, but did not specify the form of stock that would be awarded or provide a vesting schedule for the securities. (Id.)
Mr. Giunta suffers from a cracked larynx, which causes him to speak in a raspy voice and, at times, breathe heavily. This ailment does not appear to have limited Mr. Giunta's ability to perform well when working at Accenture. During his six-year tenure, he received positive reviews, and was thought to "communicate effectively with other employees and the public in general." (Def.'s Br. Summ. J. 5.) According to Accenture, prior to this lawsuit, Mr. Giunta neither disclosed his medical condition nor made any requests for accommodations. On the other hand, Mr. Giunta alleges that he disclosed his condition as soon as he began working at Accenture, and that it made him the butt of certain jokes at the office. In particular, he alleges that Bruce Dodd, his career counselor at Accenture, made a number of "derogatory" remarks. (Pl.'s Br. Summ. J. 5.)
On June 26, 2008, following his termination, Mr. Giunta filed identical Complaints in the Superior Courts of New Jersey for Bergen and Morris counties, alleging that his termination violated the New Jersey Law Against Discrimination ("NJLAD") (Count One), N.J.S.A. 10:5-1, et. seq., and the Americans with Disabilities Act ("ADA") (Count Two), 42 U.S.C. § 12101 et. seq. The Complaints also sought payment of various benefits allegedly withheld by Accenture. Specifically, Mr. Giunta claimed that his 2007 and 2008 Compensation Models, along with the terms of Accenture's Separation Benefits Plan, entitled him to (1) separation benefits of thirteen weeks pay plus four months of COBRA payments (Count Three); (2) payment for 340 hours of PTO (Count Four); (3) a 2007 long-term incentive equity bonus of $230,000 in Accenture Stock (Count Five); and (4) both cash and equity bonuses for the period between the end of the 2007 fiscal year and the date of his termination (Counts Six and Seven). Accenture removed both Complaints on the grounds that this Court has jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1332.
In support of his claim in Count Five that Accenture wrongfully refused to pay his equity bonus for 2007, Mr. Giunta referred to his 2007 Compensation Model, which states that "you will . . . be eligible for a Long Term Incentive Award program aligned to your target-this award is paid at the completion of the fiscal year." (Compl., Ex. A.) Mr. Giunta's target for 2007 was $40 million in sales. The 2007 Compensation Model also states that "the Long Term Incentive Award percentages for FY07 at the various performance levels are as follows" . . . Target- 100% of your base pay as a bonus payable in equity," thus fixing the value of Mr. Giunta's 2007 equity bonus at $230,000. (Id.) Finally, the Model provides that its terms are the sole authority governing compensation by stating that:
This model supersedes any type of other variable pay program or equity program in which you may currently be participating. . . As a result, you will not be eligible for any other type of company wide or local variable pay programs or equity programs. Please be advised that Accenture reserves the right to amend, modify, or withdraw this model at any time, with or without notice. (Id.)
Mr. Giunta agreed to the 2007 Compensation Model on August 20th of that year. Neither party contends that the 2007 Compensation Model was modified or abrogated prior to its expiration.
Accenture contended that the equity award provided for by the Compensation Model was subject to the terms of a separate document, the "Form of Employee Restricted Share Unit Agreement (Fiscal 2008)" ("RSU Agreement"). The Agreement incorporates by reference two others: the Accenture Ltd. 2001 Share Incentive Plan ("SIP") and the "Senior Manager Restricted Share Unit Agreement Essential Grant Terms" ("Essential Grant Terms"). Thus, Accenture claimed that Mr. Giunta's equity bonus was subject to the terms and conditions of all three documents.
The RSU Agreement, which defines an RSU as "the unfunded, unsecured right of the Participant to receive a Share on the date(s) specified herein, subject to the conditions specified herein," includes a heading titled "Vesting Schedule." The schedule states that:
Subject to the Participant's continued employment with the Company . . . the RSUs shall vest pursuant to the vesting schedule set forth in the Essential Grant Terms (as modified by this Agreement), until such RSUs are 100% vested. Upon the participant's termination of employment for any reason, any unvested RSUs shall immediately terminate, and no other shares shall be issued. (Def.'s Br. Supp. Mot. Dismiss, Ex. G.)
The Agreement also contains a section under which the participant acknowledges that:
Participant's participation in the Plan is outside the terms of the Participant's contracts of employment with the Constituent Companies and is therefore not be considered part of any normal or expected compensation and that the termination of the participant's employment under any circumstances whatsoever will give the Participant no claim or right of action against the Company or its Affiliates in respect of any loss of rights under this Agreement or the Plan. (Id.)
Finally, the RSU Agreement states that its "interpretation, performance and enforcement" shall be "governed by the laws of the State of New York . . . and shall be subject to the exclusive jurisdiction of the New York Courts." (Id.)
The SIP contains information on the pricing and administration of stock options and RSU grants on the part of Accenture. (Def's Br. Supp. Mot. Dismiss, Ex. H.) The details of those terms are largely irrelevant for the purposes of this decision, excepting the provision that "[t]he Plan shall be governed by and construed in accordance with the laws of the State of New York. (Id.)
The Essential Grant Terms lay out the specifics of the vesting schedule cited in the RSU Agreement. Specifically, the shares awarded under the RSU Agreement will vest over a period of three years, with one third vesting each year. (Def's Br. Supp. Mot. Dismiss, Ex. J.) Thus, Accenture claims that under the RSU Agreement and Essential Grant Terms, none of the shares awarded at the end of 2007 as part of Mr. Giunta's equity bonus for that year could have vested by the time he was terminated roughly three months later on March 12, 2008. Because the RSU Agreement states that unvested shares are forfeited in the event of termination, Accenture argues that Mr. Giunta is barred from asserting the claim for those shares contained in Count Five of the Complaint.
B. November 6, 2008 Opinion
On August 12, 2008, Accenture moved for Summary Judgment*fn2
to dismiss Counts Three through Seven of the Complaint. In
doing so, it argued that (1) Mr. Giunta's refusal to execute a
Separation Agreement made him ineligible for severance pay; (2) the
company's PTO policy clearly specified that only 240 hours would be
paid out after an employee's dismissal; (3) Mr. Giunta's 2007
long-term incentive equity bonus had not vested at the time of his
termination; and (4) Mr. Giunta's claim for cash and equity bonuses
accrued between the end of 2007 and his termination is speculative and
Mr. Giunta was not entitled to any bonuses for the 2008 year.
In an opinion dated November 6, 2008, the Court (1) granted Accenture's Motion for Summary Judgment on Counts Three and Four; (2) denied summary judgment on Count Five; and (3) granted summary judgment on the portions of Counts Six and Seven relating to the long-term incentive equity bonus, but denied it on those relating to the annual incentive cash bonus. Specifically, with respect to Count Five, the Court found that the terms of the 2007 Compensation Model did not subject the 2007 long-term incentive equity bonus to any of the terms of the RSU Agreement because Mr. Giunta neither signed the RSU Agreement nor otherwise indicated that he agreed to be bound by its terms. In addition, the Court found that the 2007 Compensation model did not otherwise incorporate the three-year vesting schedule contained in the RSU Agreement and RSU Essential Grant Terms for three reasons. First, the 2007 Compensation Model completely disavowed the incorporation of terms from any other payment plan. Second, it specifically stated that the 2007 long-term incentive equity bonus was to be paid at the completion of the fiscal year. Third, the terms of the RSU agreement applied only to the 2008 fiscal year, and therefore could not have been incorporated by the 2007 Compensation Model.
With respect to Counts Six and Seven, having found that the terms of the RSU Agreement were not incorporated by the 2007 Compensation Model, the Court also found that that the nearly-identical terms of the 2008 Compensation Model were not subject to the terms of the RSU Agreement. Moreover, since the 2008 Model includes specific provisions that govern the claims asserted in Counts Six and Seven, the Court found that there was no need to delve into the intricacies of case law on claims for breach of the implied covenant for good faith and fair dealing or unjust enrichment. Instead, the ...