Opinion
Civ. No. 00-675 (WGB)
December 21, 2001
Nicholas W. Kowalchyn, Esq., Westfield, NJ, for Plaintiffs.
Patrick J. Conlon, Esq., Clinton Township, NJ, John B. McCusker, Esq. McCusker, Anselmi, Rosen, Carvelli Walsh, P.A., Chatham, NJ, for Defendant Exxon Corp.
O P I N I O N
Defendant Exxon Corporation moves for summary judgment under Fed.R.Civ.P. 56 and for sanctions under Fed.R.Civ.P. 11. Plaintiffs cross-move for sanctions under Fed.R.Civ.P. 11. For the following reasons, Exxon's motion for summary judgment is granted. Exxon's motion for Rule 11 sanctions and Plaintiffs' cross-motion for Rule 11 sanctions are both denied.
I. BACKGROUND
A. Facts
Plaintiffs are ten African-Americans who were employees of defendant Exxon Chemical Company's Paramins division ("Exxon") until the end of 1998, at which time Exxon discontinued its Paramins operations and became part of a joint venture with the Shell Oil Company known as Infineum. As a result of the joint venture, all Exxon employees were terminated. Some were offered positions by Infineum, following a selection process.
The selection process was deployed by Exxon and involved selecting "raters" to rate employees using ten separate criteria: Safety Participation, Quality of Work, Quantity of Work, Job Knowledge, Problem Solving, Teamwork, Flexibility, Safety Record, Attendance and Active Discipline. See McCusker Cert., Ex. G (handout detailing selection process to be used by Infineum.) The rating process was described as follows:
Raters will be selected based upon their familiarity with individual associates. Raters will be given instructions on how the process will work by Human Resources. A computer consulting firm will be utilized to capture and store the rating information. Raters will input data via a wireless keypad. The high and low values will be discarded and a mean average will be calculated by the computer. All associates in a group will be rated in a single criterion. When all associates in that group have been rated on that single criterion the raters will move on to the next criterion. This process will be repeated until all criteria have been assessed. Human Resources will be responsible for monitoring the process to ensure consistency.
McCusker Cert, Ex. G.
With the exception of Antonio Lazarus, Plaintiffs were all members of the Independent Laboratory Employees Union ("ILEU"). All those represented by ILEU that were not offered positions with Infineum were given severance packages pursuant to their Collective Bargaining Agreement ("CBA"). See McCusker Cert., Ex. H. The packages included over two months paid salary, plus additional graduated severance payments of up to two weeks per year of service, plus outplacement assistance and benefits. See Br. In Supp., p. 1. With the exception of Luther Tucker, Plaintiffs were not offered positions with Infineum.
With regard to Mr. Tucker, he testified at his deposition that he was offered a position with Infineum, but turned it down because he was concerned that Infineum might not last. Tucker Tr., p. 93. At oral argument, Plaintiffs' attorney, Mr. Kowalchyn, conceded that he was unaware at the time he filed the Complaint that Mr. Tucker had been offered a position with Infineum. Mr. Kowalchyn agreed to withdraw that portion of the Complaint based on allegations that Mr. Tucker was not offered a position with Infineum.
Plaintiffs' allegations consist largely of two claims. The first is that Exxon engaged in a pattern and practice of racial discrimination against them on the basis of their race during their tenure at Exxon. The second is that Exxon discriminated against them on the basis of their race by virtue of the fact that they were not selected for any position with Infineum upon being terminated from Exxon.
Plaintiffs allege that over the years, Exxon has discriminated against African-Americans with regard to hiring, compensation, promotion, demotion, job assignments, training, skills qualification, transfer, layoff, discharge and disciplinary practices. Amend. Compl. ¶ 17. Specifically, they claim that Exxon has failed to adequately recruit, hire and retain African-Americans for positions at all levels of employment and management on an equal basis with whites because of their race. Id. at ¶ 18. They contend that Exxon excludes African-Americans from certain positions and generally assigns them to lower level positions.Id. at ¶ 19. They claim that Exxon maintains varying and subjective standards with respect to the promotion of its employees, which are used as a pretext for denying promotions to higher level positions to qualified African-Americans. Id. at ¶ 21, 22. Additionally, they contend that Exxon has terminated African-Americans on the basis of their race. Id. at ¶ 31.
Plaintiffs further contend that Exxon discriminated against them when they were terminated and were not offered positions with Infineum because of their race. Id. at ¶¶ 43, 83, 123, 163, 202, 242, 282, 322, 362, 402. In particular, Plaintiffs allege that each of them was a candidate for a new position at Infineum, and that following a selection process, each plaintiff was not chosen for a position with Infineum on the basis of their race. Id. at ¶¶ 38 78, 118, 158, 197 237, 277, 317, 357, 397. Plaintiffs further allege that Caucasian employees who had received inferior evaluations were chosen for positions with Infineum. Id. at ¶¶ 41, 81, 121, 161, 200, 240, 280, 320, 260, 400.
Based on this, each Plaintiff alleges causes of action against Exxon for discrimination, breach of contract, breach of the covenant of good faith and fair dealing, wrongful discharge, intentional infliction of emotional distress and fraud. Plaintiffs also bring a cause of action against ILEU for breach of contract for failing to process these grievances on plaintiffs' behalf.
B. Procedural History
On December 30, 1999, Plaintiffs filed this action in the Superior Court of New Jersey Law Division, Union County, alleging discrimination, breach of contract, breach of the covenant of good faith and fair dealing, wrongful discharge, intentional infliction of emotional distress and fraud.
Contending that Plaintiffs' claims arose under Section 301 of the Labor Management Relations Act ("LMRA"), 29 U.S.C. § 185, et seq., Exxon removed this case to this Court on February 14, 2000. This Court has jurisdiction under the LMRA and 28 U.S.C. § 1331.
Exxon now moves for summary judgment on several grounds. It argues that Plaintiffs' discrimination claims should be dismissed because they cannot establish a prima facie case of race discrimination. Even if Plaintiffs can establish a prima facie case, Exxon argues that Plaintiffs have not set forth any evidence from which a fact-finder could reasonably disbelieve Exxon's proffered nondiscriminatory reasons for terminating them. Exxon also argues that Plaintiff's accommodation, breach of contract, and breach of the covenant of good faith and fair dealing claims must be dismissed because they are preempted by § 301 of the LMRA.
Additionally, Exxon contends that Plaintiffs' breach of contract claims should be dismissed because there is no contract upon which such a claim could be predicated. Further, in the absence of a contract, Exxon contends there can be no breach of any covenant of good faith and fair dealing. Exxon argues that Plaintiffs' wrongful discharge claims should be dismissed because they are coterminous with their NJLAD claim. Exxon also argues the Plaintiffs' claims for intentional infliction of emotional distress are unsupported by any evidence. Finally, Exxon contends that the Plaintiffs' fraud claims are facially deficient.
Simultaneous with its motion for summary judgment, Exxon filed a motion for sanctions pursuant to Fed.R.Civ.P. 11, alleging that the actions of plaintiffs' counsel in filing the complaint and then failing to dismiss it after the completion of discovery are grounds for Rule 11 sanctions. Exxon contends that Plaintiffs' counsel should not have filed the complaint because there were no grounds to support any of the claims alleged in it. Additionally, Exxon claims that counsel should have dismissed the complaint after discovery established that the claims set forth in the complaint were without merit.
Plaintiffs cross-moved for sanctions against Exxon, alleging that Exxon's motion for Rule 11 sanctions is without merit and warrants the imposition sanctions.
On December 20, 2001, the Court heard oral argument on the motions.
II. SUMMARY JUDGMENT STANDARD
Summary judgment is appropriate only if all the probative materials of the record "show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c); Hersh v. Allen Prods. Co., 789 F.2d 230, 232 (3d Cir. 1986). Whether a fact is material is determined by the applicable substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). An issue involving a material fact is genuine "if the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Healy v. New York Life Ins. Co., 860 F.2d 1209, 1219n.3 (3d Cir. 1988). The "judge's function is not himself to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 249.
The moving party has the initial burden of showing that no genuine issue of material fact exists. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). If the moving party satisfies this requirement, the burden shifts to the nonmoving party to present evidence that there is a genuine issue for trial. Id. at 324. Under the standards announced by the Supreme Court's trilogy in Celotex, 477 U.S. 317, Anderson, 477 U.S. 242, andMatsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574 (1986), "the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment." Anderson, 477 U.S. at 247-48 (emphasis in original).
Since a motion for summary judgment is designed to go beyond the pleadings, factual specificity is required of a party who opposes such a motion. Celotex, 477 U.S. 317, 322-23 (1986). Accordingly, in order to defeat a properly supported motion for summary judgment, a party may not merely restate the allegations of his complaint. Farmer v. Carlson, 685 F. Supp. 1335, 1339 (M.D.Pa. 1988). Moreover, a party cannot rely upon self-serving conclusions, unsupported by specific facts in the record. Celotex, 477 U.S. at 322-23. A non-moving party must point to concrete evidence in the record which supports each essential element of his case. Id. If the party fails to provide such evidence, then he is not entitled to a trial and the moving-party is entitled to summary judgment as a matter of law. Fed.R.Civ.P. 56(e).
In deciding a summary judgment motion, however, the Court's role is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson, 477 U.S. at 248. If the party opposing summary judgment has exceeded the "mere scintilla" threshold and has offered a genuine issue of material fact, then the Court cannot credit the movant's version of events, even if the quantity of the movant's evidence far outweighs that of its opponent. Big Apple BMW v. BMW of N. Am., 974 F.2d 1358, 1363 (3d Cir. 1992).
III. RULE 11 STANDARD
Rule 11 is a device intended to curtail abuses in connection with the signing and filing of pleadings, motions and other papers. The Supreme Court recognized that "the central purpose of Rule 11 is to deter baseless filings in the District Court and thus . . . streamline the administration and procedure of the federal courts" Cooter Gell v. Hartmax Corp., 496 U.S. 384, 392 (1990).
Rule 11 provides that the signature of an attorney on a paper carries with it an explicit representation that he has made a "reasonable inquiry" as to the facts and law concerning the document. See Chambers v. NASCO, Inc., 501 U.S. 32 (1991); Bradgate Associates, Inc. v. Fellows, Read Associates, Inc., 999 F.2d 745, 752 (3d Cir. 1993). The Third Circuit has stated that Rule 11 requires an attorney to "`Stop Think Investigate and Research' before filing papers either to initiate a suit or to conduct the litigation." Gaiardo v. Ethyl Corp., 835 F.2d 479, 482 (3d Cir. 1987).
Under Rule 11, the attorney's conduct is measured by an objective standard of reasonableness. Bradgate, 999 F.2d at 752. Reasonableness is "defined as an `objective knowledge or belief at the time of the filing of a challenged paper' that the claim was well-grounded in law and fact."Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 289 (3d Cir. 1991) quoting, Jones v. Pittsburgh Nat'l Corp., 899 F.2d at 1359. In order "to determine whether an attorney's prefiling inquiry was reasonable, a court must consider all the circumstance of the case."Cooter, 496 U.S. at 401. The Court should bear in mind that Rule 11 sanctions are appropriate "only in the `exceptional circumstance' where a claim or motion is patently unmeritorious or frivolous." Ford Motor Co., 930 F.2d at 289.
IV. DISCUSSION
A. Discrimination under NJLAD
Plaintiffs' discrimination claim under the NJLAD is based on the alleged pattern and practice of discrimination by Exxon with regard to hiring, promoting and disciplining employees. Additionally, it is based on the alleged discriminatory termination by Exxon and failure to hire by Infineum. Amend. Compl., ¶¶ 44, 83, 123, 163, 202, 242, 282, 322, 262, 402.
NJLAD forbids an employer from discriminating against an employee on the basis of race or gender. Section 10:5-12(a). The standard for analyzing a NJLAD claim in the summary judgment context is the same as that applicable to claims of discrimination under federal statutes.Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61,70 (3d Cir. 1996); Abrams v. Lightolier, 50 F.3d 1204, 1212 (3d Cir. 1995).
Under the seminal case of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), a plaintiff must initially establish a minimal prima facie case of discrimination. Once the plaintiff establishes his or her prima facie case, the burden shifts to the defendant to articulate one or more legitimate, non-discriminatory reasons for its employment decision.Waldron v. SL Industries, Inc., 56 F.3d 491 (3d Cir. 1995)
If one or more such reasons are proffered, the presumption of discrimination created by establishment of the prima facie case is dispelled, and the burden "rebounds to the plaintiff, who must now show by a preponderance of the evidence that the employer's explanation is pretextual." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). The plaintiff need only point to evidence sufficient to discredit the defendant's proffered reasons to survive summary judgment. The "plaintiff need not also come forward with additional evidence of discrimination beyond his or her prima facie case." Id. at 64.
In order for a plaintiff to set forth a prima facie case of discrimination, a discharged employee must show: (1) that he belongs to a protected class; (2) was qualified by training and experience for the job from which he was discharged; and (3) was replaced by a person not in the protected class. Turner v. Schering-Plough Corp., 901 F.2d 335 (3d Cir. 1990) citing, Sorba v. Pennsylvania Drilling Co., 821 F.2d 200, 202 (3rd Cir. 1987).
In employment discrimination cases, the ultimate burden of persuading the trier of fact that the employer intentionally discriminated against employee remains at all times with employee. St. Mary's Honor Center v. Hicks, 509 U.S. 502, 507 (1993).
(i) Disparate Treatment
Plaintiffs first claim under the NJLAD is a claim of disparate treatment by Exxon. Plaintiffs allege:
Plaintiff [name] has himself experienced or has observed racial discrimination in work assignments promotions, training, discipline and compensation.
Amend. Compl., ¶ 36, 77, 117, 157, 196, 236, 276, 316, 356, 396.
[D]uring his tenure as an employee with the defendant Exxon Corporation, plaintiff [insert name of plaintiff] observed conduct and behavior by Caucasian employees which was tolerated by the defendant Exxon Corporation, while the same or similar conduct and behavior by African-American employees was not tolerated by the defendant Exxon Corporation.
Amend. Compl., ¶¶ 42, 82, 122, 162, 201, 241, 281, 321, 361, 401.
These allegations are repeated for each plaintiff, but remain wholly unsupported by any facts or evidence. Here, despite the claim that each plaintiff allegedly experienced and observed racial discrimination, Plaintiffs do not cite one such incident to support such a claim.
A claim of racially disparate treatment requires the employee to prove a discriminatory motive, although in some cases the motive may be inferred from the disparate treatment itself. International Brotherhood of Teamsters v. United States, 431 U.S. 324 335n.15 (1977); Jason, 329 N.J. Super at 304. Additionally disparate treatment claims require "comparison between the defendant's conduct toward plaintiff and other members of the protected class on one hand and, similarly situated employees not within the protected class on the other." Jason, 329 N.J. Super at 305. Plaintiffs do not even attempt to make any such comparison. Even if they did, an "inference of discrimination" does not arise "anytime a single member of a non-protected group was allegedly treated more favorably than one member of the protected group regardless of how many other members of the non-protected group were treated equally or less favorably." Simpson v. Kay Jewelers, 142 F.3d 639, 646 (3d Cir. 1998).
Plaintiffs do not cite even one instance where any plaintiff even applied for a promotion, much less where one was denied. The claims that Plaintiffs somehow received work assignments, training or compensation that was any different than anyone not in the protected class are entirely unsupported by any facts in the record.
The only support for the disparate treatment claim is the conclusory allegation by Plaintiff Ray O'Sekon that he "was the subject of written disciplinary/grievance complaints filed against him by his supervisor only because he was the sole black in his work group." Amend. Compl., ¶ 37. However, Plaintiffs do not discuss the basis for the belief that the complaint was filed only because he was the sole black in his work group. There is no evidence that anyone not in the protected class engaged in conduct similar to Mr. O'Sekon's and was not disciplined in the same way.
In support of their disparate treatment claims, Plaintiffs submit statistical data in the form of an Affirmative Action Employee Information Report filed with the State of New Jersey and an Affirmative Action Employee Information Report filed with the New Jersey Department of Labor. Kowalchyn Cert, Exs. A and B. These reports reflect demographic data of employees for Exxon Corporation, U.S.A. in 1996 and 1999, which presumably are meant to reflect the general under-representation of African-Americans in management level positions at Exxon.
Exxon contends that the data contained in these reports pertains to the wrong companies, principally the wrong category of employee and the wrong time frame. Even assuming that the data contained in the reports is relevant to Plaintiffs' claims, Plaintiffs have not analyzed the statistics in any meaningful way.
Statistical evidence of an employer's pattern and practice with respect to minority employment may be relevant to a showing of pretext. Ezold v. Wolf, Block Schorr Solis-Cohen, 983 F.2d 509, 541 (3d Cir. 1992). However, raw numerical comparisons, unaccompanied by any analysis of either the qualified African-American applicants or the flow of qualified candidates over a relevant time period are useless. Id. (finding that no conclusion can be drawn from Plaintiff's raw numbers). The reports are completely meaningless without further analysis. Accordingly, they do not support Plaintiffs' disparate treatment claim.
Other than unsupported opinion testimony and raw numbers devoid of any analysis, Plaintiffs offer no evidence of a racial pattern of discrimination in work assignments, promotions, training, discipline and compensation. Plaintiffs have not cited one instance of any member of a non-protected group being treated more favorably than any member of the protected group. The Court cannot infer a pattern of racial discrimination from the evidence presented by Plaintiffs. Accordingly, the Plaintiffs' disparate treatment claim is dismissed.
(ii) Failure to Offer Position at Infineum
Plaintiffs allege that in failing to offer them a position with Infineum and terminating them from Exxon, Exxon is liable under NJLAD. When the case involves a plant closing, such that plaintiff's job is eliminated and, therefore, no replacement is required, in order to establish a prima facie case under the McDonnell Douglas Corp. burden-shifting analysis, a plaintiff to show: (1) membership in the protected class, and (2) discharge from a job in which plaintiff was qualified while other workers not in the protected class were retained or treated more favorably. Healy v. New York Ins. Co., 860 F.2d 1209, 1214 n. 1 (3d Cir. 1988).
Exxon argues that Plaintiffs cannot show that any workers not in the protected class were retained by Exxon because, as the record indicates and as Plaintiffs concede, all Exxon employees (both minority and non-minority) were terminated as a result of the joint venture and no Exxon employees were retained. However, the alleged discrimination stems, not from the fact that Plaintiffs were terminated by Exxon, but from the fact that Plaintiffs were not offered positions with Infineum upon being terminated, while other non-minority employees were.
It is well established that the framework set forth in McDonnell Douglas Corp. should be "adapted to the circumstances of the claim."Jason v. Showboat Hotel Casino, 329 N.J. Super. 295, 303 (App.Div. 2000). In the context of this lawsuit, Plaintiffs contend that those who were hired by Infineum were effectively "retained." Therefore, Plaintiffs' burden of demonstrating a prima facie case requires them to show that similarly situated persons not in the protected class were offered positions with Infineum while they were not. Similarly situated means "those persons possessing equivalent qualifications and working in the same job category as plaintiff." Id. at 305.
To the extent that Plaintiffs' claim they were not offered positions with Infineum upon their termination from Exxon, Exxon contends that it was Infineum and not Exxon who made the hiring decisions. Exxon argues that Infineum's failure to hire Plaintiffs cannot be attributed it to because the selection process was conducted exclusively by Infineum, and it was Infineum, and not Exxon, that made the hiring decisions. Moreover, Exxon alleges that Infineum is a separate and independent entity. Accordingly, Exxon contends that any alleged discrimination should be attributed only to Infineum, and not to it.
Whether Infineum and Exxon are indeed separate and independent of one another can only be determined by examining several factors to determine whether there is an "integrated enterprise." See Ferrell v. Harvard Industries, Inc., 2001 WL 1301461, *22 (E.D.Pa. 2001) (Slip op.). The "integrated enterprise test is a `labor-specific veil-piercing test'" which "`looks to four labor-related characteristics of affiliated corporations: interrelation of operations; common management; centralized control of labor relations; and common ownership or financial control.'"Id., quoting, Pearson v. Component Technology Corp., 247 F.3d 471, 485-86 (3d Cir. 2001).
Here, there is undisputed evidence that Exxon employees were involved in implementing and carrying out the rating process which is at the heart of this controversy. Mr. Cohen testified that the rating process, including the criteria utilized in evaluating prospective Infineum employees was developed in 1998 by Exxon employees. Cohen Tr., p. 26-29. Many of these Exxon employees were never employed by Infineum. Id. at 29. Additionally, some Exxon employees, including at least one plaintiff (Mr. Lazarus), actually carried out the rating process by rating and evaluating Exxon employees to determine whether they would be offered positions with Infineum. Lazarus Tr., p. 25. Indeed, Exxon's own document indicates that the rating process was to be deployed by Exxon. McCusker Cert., Ex. G.
For example, Mr. Lazarus was responsible for rating the research technicians in his group. Lazarus Tr., p. 25. Ms. Dooley, an Exxon mail room supervisor, was also responsible for rating Exxon employees. Dooley Tr., p. 45-46. Renee Roper, another Exxon employee, was responsible for rating the technicians and secretarial staff. Roper Tr., p. 19.
Exxon relies on several documents to support its claim that it is separate and independent from Infineum. It relies on a letter dated November 1, 1996, from Martin Cohen the Site Manger at LTC, to all Exxon employees, informing them that "[T]he proposed joint venture will operate as a separate and independent entity." McCusker, Ex. I. Another letter, dated September 2, 1998 from Mr. Cohen to all Exxon employees stated in pertinent part that "INFINEUM will operate as a separate and independent entity." McCusker, Ex. D. In an October 22, 1998 letter to all associates then represented by a union at the Linden Technology Center, A.J. Bauer, North America Human Resource manager for Infineum, wrote:
As you can see by reviewing this material, Infineum will be a separate, independent and unique enterprise that is customer driven and market focused.
See McCusker, Ex. E (Exhibit E contains only the letter, but not the material referred to in the letter by which one could see that Infineum would be a separate, independent entity). Additionally, Exxon relies on the fact that Plaintiffs understood, based on those letters, that Exxon was an entity separate and independent from Infineum.
These letters and testimony are insufficient to prove that Infineum was separate and independent from Exxon. First, the letters were written before Infineum actually became an entity. Each letter indicates that Infineum would be separate and independent, but there is no evidence that it eventually formed a separate and independent entity. Additionally, the letters are not in the form of sworn affidavits or testimony as they must be in order to be the basis of a motion for summary judgment. Moreover, the fact that Plaintiffs understood the content of the letters does not prove its truth.
Exxon also relies on the Certificate of Incorporation (the "Certificate")of Infineum to prove that Infineum is separate and independent from Exxon. However, the Certificate includes the names of the three directors of Infineum, each with an address at Exxon Chemical Company.
The Court finds that Plaintiffs have presented sufficient evidence to raise a triable issue of fact as to whether Exxon and Infineum were separate and independent. Additionally, even if Exxon did prove that Infineum was a separate and independent entity, it is undisputed that Exxon was involved in the rating process. Accordingly, there is a sufficient question of fact as to whether the selection and hiring of Exxon employees, which was based, at least in part, on the rating process, can be attributed to Exxon. Exxon's liability remains ultimately a question for the trier of fact. Therefore, it is not entitled to summary judgment on this basis. The Court now turns to whether Plaintiffs have set forth a prima facie case.
Here, Plaintiffs can satisfy the first prima facie element because they belong to a protected class — they are all African Americans. As for the second element, Plaintiffs were all discharged from jobs for which they were qualified (it is undisputed that Plaintiffs were all qualified for the positions they held). Additionally, with the exception of Luther Tucker, Plaintiffs were not offered positions with Infineum.
As stated earlier, Mr. Tucker's NJLAD claims based on allegations that he was not offered a position with Infineum have been withdrawn.
Finally, Plaintiffs contend that Caucasian employees, even some with lesser qualifications and poor work performance histories, were chosen for positions with Infineum. Amend. Compl., ¶ 41. However, Plaintiffs have not cited one instance in which a Caucasian employee was chosen for a position with Infineum for which any Plaintiff was qualified.
Plaintiffs offer the opinion testimony of several Exxon managers to prove they were qualified for positions with Infineum. Sandra Dooley testified that she believed Ms. Davis was qualified for employment with Infineum in the same capacity she was employed at Exxon. Dooley Tr., p. 47. Renee Roper testified that she thought Mr. O'Sekon's work was high quality and that she gave him above-average ratings. Roper Tr., p. 32. She also felt that Mr. Lazarus was qualified for a position at Infineum. Roper Tr., p. 51. Mr. Williams testified that in his opinion Mr. Brown, Mr. Wilkins, Mr. O'Sekon, Ms. Glanton and Mr. Lazarus were all qualified. Williams Tr., p. 25.
As for Ms. Lee, Mr. Birchett and Ms. Baptiste, Mr. Kowalchyn conceded at oral argument that there is no evidence in the record to demonstrate that they were qualified for positions with Infineum. Additionally, there is evidence that as a result of being offered a position with Chevron, Mr. Lazarus became ineligible for a position with Infineum. Id. at 72. Mr. Lazarus admitted at his deposition that all Exxon employee that were offered positions with Chevron, including himself, were ineligible for a position with Infineum. Id. at 72-74.
Even assuming all Plaintiffs were qualified for such positions, there is no evidence that those positions were available at Infineum or were filled by persons not in the protected class. While the Court has little doubt that non-minority employees of Exxon were hired by Infineum, it is not the Court's role to speculate or assume which positions were filled and by whom. Plaintiffs must support their allegations with concrete evidence in order to defeat a motion for summary judgment. Whether it be due to ignorance or oversight on the part of Mr. Kowalchyn, Plaintiffs here have failed to do so. In fact, Plaintiffs do not even attempt to argue that the facts demonstrate a prima facie case of discrimination under McDonnell Douglas Corp.
Plaintiffs point to three individuals that were offered positions with Infineum: Kathy Strauss, Michael Russo and John Ferevante. Mr. Lazarus testified that Ms. Strauss, a research technician with Exxon, was hired by Infineum despite a poor record for absenteeism and several suspensions. Lazarus Tr. p 22. Neither Mr. Lazarus, nor any other document, identifies Ms. Strauss' race. It is unknown whether Ms. Strauss is in the non-protected class, what position she was hired for, or whether any plaintiff was qualified for that position.
At oral argument, Mr. Kowalchyn asserted that the three individuals Ms. Strauss, Mr. Russo and Mr. Ferevante were all in the non-protected class. Even accepting this contention, Plaintiffs fail to allege that any of the three individuals was hired to perform a job for which any plaintiff was qualified. There is no testimony about what position each was offered and, consequently, which, if any, plaintiff was qualified for that position. In the absence of this evidence, it is impossible for the Court to infer that these individuals received favorable treatment because of their race.
In order for Plaintiffs to state a prima facie case, "[t]here must be some evidence that race was a determining factor in the employer's decision." Iadimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999), quoting Holmes v. Bevilacqua, 742 F.2d 142 (4th Cir. 1986). Without evidence that Infineum offered positions for which Plaintiffs were qualified, to employees not in the protected class, Plaintiffs have failed to establish even a prima facie case of discrimination.
Because Plaintiffs have not established a prima facie case of discrimination under NJLAD, it cannot defeat summary judgment on the NJLAD claims. Therefore, Counts one, eight, fifteen, twenty-two, twenty-nine, thirty-six, forty-three, fifty-seven and sixty-four are dismissed.
B. Remaining State Law Claims
The remaining claims are Plaintiffs' state law claims. Plaintiffs claim that Exxon's personnel policies and procedure manuals and employee guidelines which represented that "employees would be treated fairly and equitably, and that employees would be judged on the basis of individual merit and ability, and that employees would receive just compensation for their services rendered to defendant," constituted employment contracts, which Exxon breached when it terminated Plaintiffs on the basis of their race. Plaintiffs claim that by discriminating against them, Exxon also breached a covenant of good faith and fair dealing in the purported employment contracts. Plaintiffs assert that Exxon's discriminatory conduct constituted wrongful discharge. Plaintiffs claim that by their discriminatory conduct, Exxon intentionally inflicted emotional distress on Plaintiffs. Finally, by denying Plaintiffs positions with Infineum on the basis of their race, Plaintiffs contend that Exxon's representations that Plaintiffs would be judged upon the basis of merit and ability, amounted to fraud.
Having concluded that Plaintiffs failed to produce any evidence that Exxon discriminated against them on the basis of their race, it follows that Plaintiffs' remaining state law claims (for breach of contract, breach of covenant of good faith and fair dealing, wrongful discharge, intentional infliction of emotional distress and fraud) must also fail because those remaining claims are also based on Exxon's alleged discrimination. See Gaul v. Lucent Technologies Inc., 134 F.3d 576, 581 (3d Cir. 1998). Accordingly, Plaintiffs' claims for breach of contract, breach of covenant of good faith and fair dealing, wrongful discharge, intentional infliction of emotional distress and fraud are dismissed.
C. Rule 11 Sanctions
(i) Defendant's Motion for Sanctions
Exxon asserts that because a reasonable investigation of the facts and law would have revealed that Plaintiffs' claims were baseless, it is clear that either counsel did not undertake any such investigation or simply filed in bad faith. On this basis, Exxon moves for sanctions against Mr. Kowalchyn pursuant to Fed.R.Civ.P. 11.
In support of its motion for sanctions, Exxon points out that the allegations with respect to plaintiffs Lazarus and Tucker were false, as both were offered positions after their termination from Exxon despite their allegations to the contrary. On this point, the Court notes that Mr. Lazarus was offered a job with Chevron, and not Infineum. Lazarus Tr., p. 64.
However, Mr. Lazarus admitted in his deposition that he was ineligible for a position with Infineum because he had been offered a position with Chevron. Id. at 72. Mr. Lazarus further admits that all Exxon employee that were offered positions with Chevron were ineligible for a position with Infineum. Id. at 72-74. Accordingly, there is no basis for Mr. Lazarus' claim that he was not offered a position with Infineum because of his race. This claim should not have been brought.
With respect to Mr. Tucker, it is clear from the deposition testimony that he was offered a position with Infineum and chose to reject it. Tucker, p. 93. Therefore, Mr. Tucker's claims based on the allegation that he was not offered a position with Infineum were frivolous and should not have been brought. Mr. Kawalchyn's behavior is particularly egregious in light of the fact that even after evidence emerged to disprove the truth of the allegations concerning Mr. Tucker, he refused to amend the complaint dismissing these claims. Mr. Kowalchyn chose to withdraw Mr. Tucker's claims at oral argument.
Exxon also points to the fact that several Plaintiffs admitted at their depositions that they did not believe that their termination from Exxon was on the basis of their race. However, this says nothing about the basis on which employees were hired by Infineum. To this point, Exxon argues that it was Infineum, and not Exxon, that made all the hiring decisions. However, as discussed, there is no evidence the Infineum was, in fact, a separate and independent entity or, if it was, that the selection process was conducted independently by Infineum.
It is obvious that any investigation into the facts and circumstances of the allegations contained in the Complaint was minimal at best. Plaintiffs make serious allegations of racial discrimination against Exxon. Yet, in each instance, they are wholly unsupported by any facts or evidence. With regard to Tucker, Mr. Kowalchyn simply had to ask him whether he was offered a position with Infineum.
Mr. Kawalchyn conceded at oral argument that the claims of Mr. Lazarus and Mr. Tucker are baseless but submits that they were brought in error. He claims that he consulted with each plaintiff before filing the complaint and requested that they review the Complaint for any mistakes. He further contends that each plaintiff reviewed the complaint and confirmed that the allegations contained in it were true and correct as it pertained to them. Based on plaintiffs' representations that the facts alleged in the complaint were true, the Complaint was filed. Mr. Kowalchyn argues that these oversights do not amount to bad faith and he should not be sanctioned for his error in judgment.
The Court finds that Mr. Kowalchyn clearly lacked good judgment. However, the imposition of sanctions is an extraordinary remedy. Under the circumstances, the Court concludes that it was not unreasonable to believe that there were causes of action with regard to nine of the ten plaintiffs.
The Court cautions that great care ought to be exercised in filing a complaint, particularly where serious allegations of racial discrimination are being alleged against a publicly recognized corporation. An attorney should not file a complaint based on assumptions of facts. He must first conduct a reasonable investigation into the facts. Simply relying on a client's acquiescence in what his attorney has drafted may not always be enough to satisfy this obligation.
Based on the foregoing, Exxon's motion for sanctions under Rule 11 is denied.
(ii) Plaintiffs' Cross-Motion for Sanctions
Plaintiffs' cross-move for Rule 11 sanctions "under the theory that defendant's request for sanctions was itself frivolous." Br. In Supp. of Cross-Motion, p. 23. The Court finds that under the circumstances, Exxon's attorney acted reasonably in making its motion for sanctions. Additionally, the Court admonishes Mr. Kowalchyn that should he be inclined to file any more careless documents with this Court, the Court will be a lot less tolerant the next time.
Plaintiffs' motion for sanctions is denied.
V. CONCLUSION
For the foregoing reasons, Exxon's motion for summary judgment is granted and all claims against Exxon are dismissed. Exxon's motion and Plaintiffs' cross-motion for sanctions are both denied.
An appropriate order follows.