THERESA SEIBERT, on behalf of herself and all others similarly situated, Plaintiff,
QUEST DIAGNOSTICS INCORPORATED, QUEST DIAGNOSTICS INCORPORATED SEVERANCE PAY PLAN, QUEST DIAGNOSTICS EMPLOYEE BENEFITS ADMINISTRATION COMMITTEE, SURYA N. MOHAPATRA, JOHN NOSENZO, THOMAS SCHOENHERR, and JANE AND JOHN DOES 1 through 10, Defendants.
KATHARINE S. HAYDEN, District Judge.
Theresa Seibert has sued Quest Diagnostics Incorporated ("Quest") on civil rights and ERISA grounds. She was terminated after working at Quest for over 25 years and claims that her termination was unlawful because it was based on her age-52 at the time-in violation of the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq.; and because Quest purposefully and unjustifiably terminated her for poor performance in order to deny her severance benefits in violation of §§ 502 and 510 of the Employee Retirement Income Security Act ("ERISA"). Quest has moved for summary judgment on all of Seibert's claims. [D.E. 93.] Seibert has moved for partial summary judgment on the ERISA § 502 claim. [D.E. 94.]
II. Procedural Background
Seibert initially sued in state court, seeking to represent a nationwide class of plaintiffs who allegedly had been discriminated against on the basis of their age, in violation of NJLAD. [D.E. 1.] Defendants removed the action, invoking federal jurisdiction under the Class Action Fairness Act, 28 U.S.C. § 1332(d). On August 15, 2011, Seibert amended her complaint to add claims under §§ 502 and 510 of ERISA, on behalf of herself and another putative class comprised of a specified group of former Quest sales representatives over the age of 40 who had been placed on, or had been threatened to be placed on, a performance improvement plan and ultimately were fired or left the company and denied severance. [D.E. 20.]
Defendants successfully moved to limit the NJLAD class to former Quest employees who had worked in New Jersey, as well as to dismiss the claims against the individual defendants. [D.E. 21, 66.] As a consequence, Seibert filed a letter indicating that she would not seek to represent a putative NJLAD class. [D.E. 68.] Thus, as she stated in the letter, "the nature of the complaint... changed to a single-plaintiff complaint under the New Jersey LAD" and a putative ERISA class. At that juncture, Magistrate Judge Shwartz ordered the parties to make summary judgment motions before Seibert files a motion to certify the ERISA class. [D.E. 88.] They did so, and the Court held oral argument.
This section of the Court's opinion is derived from various sources, including the facts to which the parties stipulated in the Joint Pretrial Order [D.E. 105], the parties' respective statements of undisputed material facts, and the numerous exhibits that were attached to the declarations submitted by counsel for plaintiff, Glen Savits, and to the certifications submitted by counsel for Quest, Gregory Parliman. Those exhibits consist of deposition excerpts, declarations, and emails and other documents produced in discovery. Unless otherwise noted, there are no disputes concerning the following background facts.
Quest, which is headquartered in Madison, New Jersey, is a leading provider of diagnostic testing, information, and services. For about 26 years, Seibert was a salesperson for Quest and its predecessor companies. When she was terminated, she held the position of Account Sales Representative in the Teterboro Business Unit of Quest's Physician Sales Organization. Her duties included maintaining and generating new sales of products and services to physician and medical practice accounts within her territory.
Seibert, like other Account Sales Representatives, underwent annual performance evaluations, which were partially based on sales statistics. With respect to sales, Seibert was judged based on her percentages of both "total attainment, " which referred to business retention, and "new sales" or "upsell, " which referred to a quota for bringing in new business.
Evaluations culminated in an overall performance rating. From 2004 through 2008, Seibert received the rating "Achieves Expectations, " even though from 2005 through 2008 she failed to meet her total sales attainment and from 2006 through 2008 she failed to satisfy her new sales quota. Gerard Giordano, Seibert's District Sales Manager, who had provided Seibert with her evaluations for those years, testified that he had been generally satisfied with her performance. (Declaration of Glen D. Savits in Support of Plaintiff's Opposition to Defendants' Motion for Summary Judgment ("Savits Opp. Decl."), Ex. E, Giordano Dep. 17:1-4.)
In those evaluations, Giordano commented (as stipulated in the Joint Pretrial Order) about the unique challenges that Seibert faced, including the "questionable" business practices of competitors in her territory, "the politics of the local hospital, " a "tough territory climate" with "unique market dynamics, " and that her territory was facing "tumultuous market conditions" and had "little opportunity to grow." In the years leading up to her termination, several clients in Seibert's territory discontinued doing business with Quest. According to Giordano's deposition testimony, the majority of these losses were probably not within Seibert's control. (Giordano Dep. 139:8-140:1.)
In addition to territory-specific problems, Quest as a whole lost some financial footing in 2007 when United HealthCare, a major client, cancelled its contract-a loss that Quest expected would reduce revenue by somewhere between seven and ten percent. Quest embarked on an initiative to reduce its cost structure. Its Chief Financial Officer, Robert Hagemann, said during a 2007 investor earnings call, "[A]s we look at the $500 million in savings that we expect to get over the next several years, certainly a significant piece of that is going to come from reduced people costs[.]"
In January 2008, Quest hired John Nosenzo as its Vice President of Sales and Marketing in the Physician Sales Organization. From emails and other documents submitted with the parties' briefs, it appears that Nosenzo played a lead role in overseeing staff reductions. In September 2008, Nosenzo wrote Quest's CEO Surya Mohapatra in an email that he had committed to reducing staff by "101 heads" by the end of the year, and explained how. (Savits Opp. Decl., Ex. PPP.) From the email:
§ I... charged my RSVPs to find the territories to close and consolidate.
§ Not wanting to do this by [a reduction in force] I drove the consolidation of some open positions first. Then I approached the reduction by not filling some positions as they became open (either forced or unforced turnover).
§ Good news is we did this reduction without any "drama" in the field or rumors of firings or hiring freezes. No small task!
( Id. )
Also under Nosenzo's direction, Quest altered its performance evaluation program to increase performance standards and individual accountability levels. From the record, it appears that the centerpiece of the revamped evaluation process was a semi-annual meeting at which a District Sales Manager would present ratings for the Account Sales Representative being reviewed. Session Qs, as the meetings were called, were attended by the District Sales Manager giving the evaluation, a group of other District Sales Managers, Sales Directors, and occasionally more senior management. Session Qs focused in large part on the employee's "scorecard"-a document comprising quantitative and qualitative performance assessments. Seibert had her first Session Q in 2009, and her rating dropped from the "Achieves Expectations" rating she had been given over the previous five years, to "Unsatisfactory." Her scorecard reflected that she had met only 72% of her total sales attainment and 26% of her new sales quota.
In August 2009, Seibert was placed on a Performance Improvement Plan ("PIP") that identified four areas of improvement, including increasing her sales. Although he had created the PIP, Giordano said at his deposition that it "was probably unlikely" that Seibert would have been able to meet the set quota. (Giordano Tr. 114:4-19.) And in December 2009, although she had improved in three of the areas, her sales performance got weaker.
Seibert's exhibits show that while she was on the PIP, Giordano began suggesting to Quest's Human Resources department that her territory be eliminated and her accounts consolidated with neighboring ones. In an email, he described this as "an attempt to equalize the opportunities among all the territories." (Savits Opp. Decl., Ex. HHH.) In response to his consolidation suggestion, Robert Kane, who worked in Quest's Human Resources, emailed Giordano that he should consider "if the facts/metrics of her performance warrant... advanc[ing] her to a final warning stage.... [I]t gives us another month of performance data on which to base a termination decision (if it comes to that)." ( Id. ) Giordano sent a reply email, noting that he did not "think a 1 month final warning would cut it, given her current territory." ( Id. ) He also wrote, "please remember that I do not plan on a replacement. Aren't these 2 different events[?]" ( Id. )
On December 16, 2009, Giordano issued Seibert a final written warning. She was unable to boost her sales and, based on the data then available, finished 2009 ranked last among a group of 356 Account Sales Representatives. After giving Seibert the final warning, Giordano sent an email on January 24, 2010, to his manager, Scott ...