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Thais Erthal v. Hapag-Lloyd (America) Inc

June 8, 2011


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


Before the Court is Defendant Hapag-Lloyd Inc.‟s ("Hapag-Lloyd" or "Defendant") Motion for Summary Judgment ("Motion") pursuant to Fed. R. Civ. P. 56(c). This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 1331 and 1367. Venue is appropriate in this District pursuant to 28 U.S.C. § 1391(b). This Motion is decided without oral argument pursuant to Fed. R. Civ. P. 78. For the reasons stated below, this Court grants Defendant‟s Motion.


This lawsuit arises from Defendant‟s termination of Thais Erthal ("Plaintiff" or "Erthal"). In May 2006, Defendant, an international shipping company, hired Erthal as a Product Management Coordinator ("PMC") for its Oceania/Australasia routes. (Def.‟s Statement of Facts ¶ 2; Erthal Dep. 31:12-15; Moreano Dep. 11:11-15.) Plaintiff worked in Defendant‟s Piscataway location. About sixty to seventy percent of Plaintiff‟s responsibilities consisted of slot control functions for trade from North America to Oceania/Australasia and the remainder of her duties was in pricing, analysis, and other duties. (Erthal Dep. 39:19-23; O‟Boyle Dep. 11:15-21; Smith Dep. 9:16-19.) Erthal reported directly to Patrick O‟Boyle ("O‟Boyle") and indirectly to David Smith ("Smith"), the Director of Product Management for the Oceania and Latin America services. (Erthal Dep. 31:19-23; Smith Dep. 7:20-23.) Plaintiff, who is not a United States citizen, held an L-2 visa. Therefore she had to renew her Employment Authorization Documentation Card ("EAD") every two years to be able to work legally in the United States. (Erthal Dep. 41:2-8.)

In October 2008, Plaintiff requested a leave of absence because she was expecting a child. (Def.‟s Statement of Facts ¶ 15.) Erthal sought to take the maximum protected leave available. (Erthal Dep. 49:18-22.) Plaintiff discussed her plans with Hapag-Lloyd‟s HR department and O‟Boyle and Defendant advised that she could take twelve weeks of paid Family Medical Leave Act ("FMLA") leave, as well as twelve weeks of unpaid leave under the New Jersey Family Leave Act ("FLA"). (Id. at 49:1-13.) Consequently, Erthal took twenty-eight weeks of protected leave. Although there was some confusion as to Plaintiff‟s return date, Plaintiff testified that O‟Boyle and Smith worked with her to ensure that she returned on the originally agreed date of April 13, 2009. (Id. at 50:2-20, 51:17-20; Gousman Certif. Ex. H.)

On April 3, 2009, Hapag-Lloyd announced a global restructure in response to the worldwide economic crisis. (Gousman Certif. Ex. I.) The restructuring was scheduled to occur in June 2009. (Smith Dep. 8:2-4.) As part of the restructuring, all slot control functions were transferred to Tampa, Florida. (Id. at 11:12-22.) As a result, a majority of Plaintiff‟s responsibilities were transferred to Tampa. (O‟Boyle Dep. 11:19-24.) Plaintiff‟s supervisor absorbed the remaining thirty to forty percent of Plaintiff‟s non-slot control duties. (Id. at 11:22-12:2.) However, Plaintiff was not the only PMC affected by this development. Robert Wilson ("Wilson") and Rafael Moreano ("Moreano") were also affected. (Moreano 12:25-13:5, 15:17-24; Gousman Certif. Ex. I, at 1.)

On April 1, 2009, prior to Defendant‟s announcement of its restructuring plans, Smith called Plaintiff and advised her that all slot control functions were being transferred to Tampa. (Erthal Dep. 56:12-57:3.) According to Plaintiff, Smith also informed her that other positions would be opening up in other departments and she would be considered for one of those positions. (Id. at 57:4-6.) Plaintiff testified that she understood she "would either have to move to Tampa or look for another position." (Id. at 57:15-18.) About a week later, Smith and O‟Boyle called Erthal again and informed her that she would be terminated on June 30, 2009, unless she applied for another job. (Id. at 57:20-58:6.)

As part of the reorganization, Defendant created a new position: Coordinator-Trade Management ("CTM") in Piscataway to handle pricing, HIP, tariffs, and FIS*fn1 between Latin America and Oceania. (Gousman Certif. Ex. R.) The individuals considered for the new position were: Erthal, Wilson, and Moreano. (Smith Dep. 21:15-19.) In early April, prior to Plaintiff‟s return, Smith chose Moreano to fill the CTM position. (Id. at 15:23-16:11.) Smith testified that Erthal taking a twenty-eight week maternity leave had no impact on his decision-making, (id. at 17:11-16); instead, his decision was based on experience, performance evaluations, and the candidates‟ overall qualifications. As part of the evaluation Smith ranked the candidates in twelve different categories on a scale of 1-5. (Gousman Certif. Ex. P.) Some of the categories considered were: years of experience, functional skill level, productivity, promotability, and growth potential. (Id.) Smith provided concrete reasons for his rankings.

For instance, on functional skill level Moreano‟s rank was five (5), Wilson‟s was four (4), and Erthal was four (4). Smith testified that he ranked them in that order because Wilson and Erthal "were below Rafael, [] Rafael had a high expertise in those functions. And those individuals would go to Rafael for guidance, if they had problems with the workings on the systems, and were not clear on how to do things." (Smith Dep. 28:20-29:1.) With regard to promotability, Moreano was ranked at five (5), Wilson at four (4), and Erthal at two (2). (Gousman Certif. Ex. P.) Smith provided the following as his reasoning for the ranking:

Rafael had a high ranking because he exceeded expectations in most areas of his work. And Robert, while strong operationally, was not strong commercially and analytically. Thais was strong operationally, not as strong commercially. And, but also, she had allowed her work authorization to lapse twice. And it is very difficult for me as a manager to promote someone and propose promotion for an individual that has not got . . . the self-planning . . . to make sure that those sort of issues do not arise. Managers are expected to be there to do a job. We could not afford to have a three- or five-month gap if a work authorization was delayed. (Smith Dep. 30:16-31:6.)

Ultimately, Moreano had the highest score of fifty-five (55), Wilson‟s score was forty-nine (49), and Erthal had the lowest score of thirty-nine (39). (Gousman Certif. Ex. P.) According to Smith, he thought Moreano was the best candidate because of his experience in the Latin America trade and because he was stronger in the commercial environment than Wilson and Erthal. (Smith Dep. 14:13-15:8.)

On April 13, 2001, Plaintiff returned to work as planned. (Smith Dep. 17:4-6.) Prior to her return, Smith ensured that any available opportunities would be communicated to Erthal. (Gousman Certif. Ex. J.) Moreover, after her return, O‟Boyle encouraged Erthal to inquire about other positions within the company and apply for them. (Gousman Certif. Ex. M; Erthal Dep. 112:13-24.) In fact, O‟Boyle told Plaintiff about several positions that had opened up and asked her to apply for those positions. (O‟Boyle Dep. 14:25-15:2.) For instance, on April 15, 2001, O‟Boyle emailed Plaintiff about a Corporate Control Coordinator position. (Gousman Certif. Ex. M, at 2.) However, Erthal was not interested in applying for the position. (Id.) Furthermore, on May 1, 2009, O‟Boyle told Erthal about three available positions in the company and encouraged her to apply to the manager‟s position. (Gousman Certif. Ex. N, at 1.) Erthal responded: "Yes, I would be interested, although I didn‟t sound too excited. I just don‟t know if it‟s too late (I will talk to you about it later), plus I don‟t know if I would get the job (if the company believes that I am not good enough to keep on doing my current job as coordinator, go figure if they will give me a manager‟s job)." (Id.) Plaintiff did not apply for that job either.

Plaintiff alleges that she did not apply for any of these positions because "[t]he only available jobs in Piscataway were jobs for which [she] [] was not qualified." (Compl. ¶ 11.) However, she later stated that she was eligible to apply for those jobs but she did not apply because she was not "comfortable continuing working for a company who [she] [] felt discriminated against," and she was not "interested in working in finance or operations. Never did anything similar to that and [she] [] didn‟t have the interest to." (Erthal Dep. 101:11-19, 103:1-104:17.) Furthermore, Plaintiff testified that she did not apply because she had already retained an attorney to initiate a lawsuit against Defendant. (Id. at 111:12-112:12.)

On September 9, 2009, Plaintiff filed a complaint in the Superior Court of New Jersey, Middlesex County, alleging wrongful discharge under New Jersey Law Against Discrimination, N.J. Stat. Ann. 10:5-1 et seq., ("LAD") (Count One), hostile work environment under LAD (Count Two), common law wrongful discharge (Count Three), and intentional infliction of emotional distress (Count Four). (Compl. ΒΆΒΆ 13-20.) On ...

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