United States District Court, D. New Jersey
Stephen G. Console, Esq., Marjory Albee, Esq., Caren N. Gurmankin, Esq., CONSOLE LAW OFFICES LLC, Moorestown, NJ, Counsel for Plaintiff/Counter-Defendant Jane Spreter.
Stephen M. Orlofsky, Esq., Rachel J. Gallagher, Esq., BLANK ROME LLP, Princeton, NJ, Counsel for Defendants/Counterclaimants, AmerisourceBergen Corporation and AmerisourceBergen Drug Corporation.
Larry R. Wood, Esq., Pro Hac Vice, Frederick G. Sandstrom, Esq., BLANK ROME LLP, Philadelphia, PA, Counsel for Defendants/Counterclaimants AmerisourceBergen Corporation and AmerisourceBergen Drug Corporation.
JOSEPH E. IRENAS, Senior District Judge.
This is an employment discrimination and retaliation suit brought by Plaintiff Jane Spreter against her former employer, Defendants AmerisourceBergen Corporation and AmerisourceBergen Drug Corporation (hereafter collectively referred to as "Amerisource"). Spreter's claims under Title VII, 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination are apparently based on many and varied complaints and several alleged adverse employment actions occurring over the last year of Spreter's 30-year employment with Amerisource.
Spreter primarily claims, however, that she was constructively discharged in retaliation for making internal complaints concerning Amerisource's "diversity" hiring policy; and that similarly, as a white female, she suffered discrimination when Amerisource promoted a less qualified female minority employee and a less qualified male minority employee ahead of her.
This Opinion addresses both of Amerisource's summary judgment motions; the first seeking judgment on Spreter's claims, and the second seeking judgment on Amerisource's counterclaims. A separate Order will address a third motion, which is Spreter's Motion for Reconsideration of this Court's Order of April 22, 2014.
For the reasons stated herein, Amerisource's Motion for Summary Judgment on Spreter's claims will be granted. Amerisource's Motion for Summary Judgment on its counterclaims will be granted as to the breach of contract claim and denied as to the declaratory judgment claim. In light of the disposition of Spreter's direct case, the declaratory judgment claim will be dismissed for lack of a live case or controversy.
Before setting forth the facts of this case, the Court must address what is properly considered part of the summary judgment record in this suit. Spreter's opposition brief sets forth in table form, a litany of "complaints of discriminatory conduct and the adverse actions based on the same, " consuming almost three single-spaced pages of her brief. (See Opposition Brief p. 4-7) The table cites to Plaintiff's Statement of Additional Undisputed Facts, which in turn, mainly cites to Plaintiff's deposition and her separate declaration. Of course, only the deposition transcript and the declaration might be properly considered; the brief and statement of undisputed facts are not evidence. See generally Fed.R.Civ.P. 56(c)(1) (stating that factual assertions must be supported by cites to "particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations..., admissions, interrogatory answers, or other materials.").
But in this case, the Court concludes that the sham affidavit doctrine applies, and therefore Spreter's declaration should not be considered in the summary judgment analysis.
"A sham affidavit is a contradictory affidavit that indicates only that the affiant cannot maintain a consistent story or is willing to offer a statement solely for the purpose of defeating summary judgment. A sham affidavit cannot raise a genuine issue of material fact because it is merely a variance from earlier deposition testimony, and therefore no reasonable jury could rely on it to find for the nonmovant." Jiminez v. All American Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007). "The main practical reason supporting the sham affidavit doctrine is that prior depositions are more reliable than affidavits." Id.
In opposition to Amerisource's Motion for Summary Judgment on Plaintiff's claims, Spreter's first exhibit is the entire transcript of her day-long deposition, taken on May 30, 2013. The Court has read the entire transcript. Spreter's testimony is replete with generalities and vague references to "complaints" and "concerns" she had. Her testimony rarely identifies to whom she complained or when she complained. Attempts by defense counsel to elicit specific information proved futile. For example:
Q: Identify for the record the complaint you made which resulted in AmerisourceBergeren providing you with an offer to transfer to a corporate headquarters job in April of 2011?
A: There's multiple complaints.
Q: So you can't identify a single one that was the cause of the company offering you a corporate HR job in April of 2011?
A: Not a single complaint, no. It was multiple complaints.
(Spreter Dep. p. 229-30)
Similarly, when defense counsel asked Spreter for the dates of her multiple complaints, she could not supply a date for most of them. (See Spreter Dep. p. 296, 299-303) While Spreter testified that she could provide dates after consulting her "records" (id.), no such documents are to be found in the summary judgment papers before the Court.
Spreter's declaration is an obvious attempt to create concrete claims by identifying specific people to whom Spreter complained and specific time frames in which she complained. In short, the declaration attempts to fill-in the blanks of Spreter's deposition testimony.
The date of her declaration, May 19, 2014, is significant for two reasons: (1) the declaration was signed almost a year after her deposition, and (2) it was signed on the very same day defense counsel filed Spreter's opposition to Amerisource's summary judgment motion. Spreter provides no explanation for why, a year later, she was able to provide specific details that she could not provide during her deposition. Moreover, Spreter has not supported those details with any other record evidence. See Jiminez, 503 F.3d at 108 ("The timing of the affidavit, whether there is a plausible explanation for the contrary statements, and whether there is independent evidence in the record supporting the affidavit may be considered when determining whether an affidavit is a sham.").
Thus, the Court concludes that the declaration was offered solely for the purpose of defeating summary judgment. The Court rejects Spreter's post-hoc attempt to fill-in the blanks of her deposition testimony. The declaration will not be considered.
Spreter's retaliation claim
Spreter began working for Amerisource's predecessor in 1981. In 1990, she was promoted to Human Resources Director for the East Region, working in Amerisource's Thorofare, New Jersey office. She held that position until her employment with Amerisource ended on May 6, 2011. (Spreter Dep. p. 15)
In an "offer letter" dated April 29, 2011, Spreter was given two options: (1) move to a different position in Amerisource's corporate headquarters in Chesterbrook, Pennsylvania, or (2) accept a severance package. (Pl's Ex. 33) She chose neither option, electing instead to resign without a severance. Spreter contends that the April 29, 2011 letter- which she considered an "ultimatum"- was retaliation for complaints she made about Amerisource's diversity recruiting policy.
It is undisputed that the April 29, 2011 letter came approximately one year after A.J. Cafentzis became Spreter's direct supervisor as a result of a company-wide management restructuring.
According to Spreter, around the same time that Ceffentzis became her supervisor, she began making complaints about what she believed to be Amerisource's "discriminatory conduct"-i.e., "placing individuals in jobs based on things other than qualifications such as race and sex." (Spreter Dep. p. 57-59)
Sometime in the year prior to Spreter's termination of employment, Spreter "contacted Pedro [Veliz, Amerisource's recruiting manager] to express concern" that Jay Webster was hired for an open Senior HRD position "because he was a male." (Id. p. 83, 295-96) When further asked at her deposition, "To whom did you make a complaint about naming Jay to the position...?" Spreter testified, "I complained to Pedro Veliz. I complained to Michelle Bridges. I complained to June Barry. I complained to Meryl Harrari. I complained to [my direct supervisor] A.J. ...