On appeal from the Superior Court of New Jersey, Law Division, Hudson County, Docket No. L-2836-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges Carchman, Graves and Messano.
On this appeal from an order dismissing a claim under the Law Against Discrimination (LAD), N.J.S.A. 10:5-1 to -49, we address the issue of whether the failure to implement an element of a proffered nondiscriminatory reason for adverse employment action - a departmental reorganization and rearrangement of a parties' duties - raises a genuine issue of material fact sufficient to withstand a motion for summary judgment. We answer that question in the affirmative. We reverse the order dismissing the complaint and remand this matter.
These are the facts presented to the motion judge on the motion for summary judgment. Plaintiff Lisbi Abraham is a United States citizen of Indian descent. He began employment with American International Group (AIG) as a manager in February 1998 and held several positions over the next seven years, including serving as the Chief Technology Officer (CTO) of the Corporate Systems Division from May 2000 to June 2001.
In September 2005, plaintiff was elevated to the position of CTO for defendant AIG's Domestic Brokerage Group (DBG) and Information Services Group (ISG), which was under the authority of the DBG's Chief Information Officer (CIO). As CTO, plaintiff "oversaw IT architecture and strategy for the Underwriting and Claims divisions" of the DBG and had authority over enterprise architecture, data architecture, and a performance lab. AIG described the CTO position as follows:
To be classified in this level, the employee must be responsible for ensuring that the appropriate technological selections and decisions are made for the corporation including all information technology architecture, design, development and services, across all AIG major lines of business (LOBs), companies, branches, departments, divisions, and organizational units. This includes computer services, data resource planning, component, data and object life cycle (analysis, design and administration), infrastructure management (communications, web, and diversified server technologies; performance and capacity management). Appoint[s] Group and Divisional CTO's and is directly responsible for their performance management and compensation recommendations. This position reports to the AIG CIO.
Plaintiff's responsibilities as CTO included oversight of technology strategy and budgeting, as well as representation of DBG's underwriting and claims divisions on the "corporate CTO council." Plaintiff also played critical roles in a major software program known as the Systems Applications Products Project (SAP) as well as the Identity Management Project.
On October 3, 2005, AIG completed a functional review of the company's CTO functions. The report that emerged from this review indicated that plaintiff oversaw twenty employees engaged in either data architecture, enterprise architecture, or performance management. Of these twenty, the report recommended that only the seven in performance management were suitable for transfer to AIGT, a centralized IT department. The report concluded that performance management required only "[m]inor application knowledge" and provided the opportunity for increased specialization and economies of scale. By contrast, data architecture "require[d] deep understanding of the [relevant] applications"; enterprise architecture "require[d] good application knowledge"; and both units were "[a]lready specialized within DBG applications." The report recommended maintaining those functions under the aegis of the DBG's CTO.
As of May 2006, defendant Neil Faulkner was the Chief Operations Officer (COO) for the DBG and had responsibility over the ISG; defendant Mary Ann Ross was a human resources executive with AIG*fn1 ; and defendant Cathleen McKenna was a Human Resources Director within the DBG. Perry Rotella was the CIO of DBG Underwriting and plaintiff's direct superior, and Gillian Waddy was Rotella's executive assistant.
On May 9, 2006, Faulkner and McKenna met with plaintiff; Sidney Stone, a fifty-eight-year-old Caucasian Senior Information Officer (SIO) in Delivery Management; and Biren Kundalia, Stone's chief of staff and an "Asian/Pacific Islander." Plaintiff, Stone, and Kundalia were informed "that their employment was being terminated due to a business reorganization . . . ."
Also as a result of the reorganization, Rotella "was removed as [CIO] for DBG Underwriting," and his assistant, Waddy, was laid off. However, Rotella was not terminated, and Waddy's termination was cancelled, allowing her to assume a new position within AIG. Rotella was eventually replaced by Franco Lungo, a former SIO.
On June 26, 2006, Richard Kearns, a fellow employee, sent an e-mail indicating that he and James Klinck were "filling in for the DBG CTO function on an interim basis until the DBG CTO function is reorganized." An August 17, 2006 presentation by Klinck entitled "DBG CTO Group Reorganization Plan" indicated that AIG sought to "[e]liminate [the] former role of CTO, replaced with divisional design organizations that implement design within the corporate standards and frameworks set out by the corporate CTO."
Kearns "was transferred to ISG as an SIO" in October 2006. He resigned two months later. As of December 15, 2006, AIG maintained a job posting for an ISG Underwriting architect who would "report to the ISG CTO."
On June 6, 2007, plaintiff filed a four-count complaint against defendants alleging disparate treatment by AIG; that Faulkner, Ross, and McKenna "aided, abetted, incited, compelled and/or coerced the performance of . . . unlawful discriminatory employment practices within the meaning of LAD;" and that AIG's reorganization had "resulted in a significantly disproportionate and adverse impact on minority employees and protected classes . . . ."
In the course of discovery, plaintiff was deposed and indicated that AIG's reorganization "eliminated the position[s] of the only two Indians within the D.B.G./I.S.G. management team." Plaintiff further stated:
Even though that there was a claim that this reorganization was because of redundancies and duplications of my functions with the corporate I.T. Group, I've seen no plan within AIG's documentation that shows there was ever an analysis that concluded that [there] was duplication of functions of my role, nor have I seen a plan that says taking me out of the picture, how was my role going to be replaced by the corporate I.T. Group.
I also know that after I was removed from AIG, my position has subsequently been replaced by non-minority people. They don't have my title of CTO but they have the majority of my responsibilities as CTO.
Plaintiff was also questioned about his responsibilities for both the DBG claims and underwriting groups:
Q. You had responsibilities over underwriting and you had responsibilities over claims. Right?
Q. . . . Describe for us your responsibilities as the CTO over D.B.G. Underwriting.
A. My responsibilities as the CTO of D.B.G. Underwriting were to review all projects within D.B.G. Underwriting for their technology and architecture as towards the corporate standards as well as the D.B.G. overall direction.
My responsibilities were to ensure that all projects were moving towards the common road map that my group had developed in terms of services, in architecture, that type of stuff.
My responsibilities were to review exceptions to AIG standards in terms of hardware and software and approve them if there was a valid reason for the exception.
My responsibilities were to represent D.B.G. Underwriting to the corporate CTO council to make sure that our needs were represented within that group, and, therefore, standards that came out of that group reflected the needs of D.B.G. Underwriting.
Q. And what were your responsibilities as group CTO over D.B.G. Claims?
A. The same exact responsibilities, just --
Q. You would say they're the same thing?
Q. . . . [W]ho did you manage . . . as group CTO over D.B.G. Underwriting?
A. I managed the Enterprise Architect Group, the Data Architect Group, and the Performance Engineering Lab . . . .
Q. So, if I were to ask you the same question with regard to your duties and responsibility as group CTO [over] D.B.G. Claims, your answer, again, is going to be the same?
A. Correct. Those are the groups I managed.
Plaintiff later explained that he "managed managers who were responsible for enterprise architecture, database architecture and performance engineering for claims and underwriting."
In addition, plaintiff discussed the function of the Corporate Systems Group:
Q. Now, the Corporate System[s] Group also approved similar projects and budgets. Is that right?
The corporate system CTO performed a similar function for the projects under his purview. They were not the same projects that were under my purview.
The projects that I was responsible for had to do mostly with underwriting and claim systems and the business of AIG in terms of bringing in and managing that revenue, the projects the corporate systems CTO is responsible for, had to do with the H.R.
Systems, the legal systems, purchasing, those types of corporate functions.
Plaintiff also testified regarding the performance of his job functions ...