Opinion
Civil Action No. 98-259 (NHP).
June 28, 1999.
Matthew R. Grabell, Esq., DEUTSCH, RESNICK, GREEN GRAMIGNA, Hackensack, N.J., Attorneys for Plaintiff.
Robert H. Bernstein, Esq., Michael D. Markey, Esq., EPSTEIN, BECKER GREEN, P.C., Newark, N.J., Attorneys for Defendant Continental Express, Inc.
LETTER OPINION ORIGINAL ON FILE WITH CLERK OF THE COURT
Dear Counsel:
This matter comes before the Court on defendant Continental Express, Inc.'s Motion for Summary Judgment. This Court heard oral argument on March 1, 1999. For the reasons stated herein, defendant Continental Express, Inc.'s Motion for Summary Judgment is GRANTED and plaintiff Marsha Tomlinson's Complaint is DISMISSED WITH PREJUDICE.
STATEMENT OF FACTS PROCEDURAL HISTORY
Plaintiff Marsha Tomlinson ("plaintiff") is an African American female who is employed as a Line Flight Attendant by defendant Continental Express, Inc. ("COEX"). COEX is a wholly-owned subsidiary of Continental Airlines, Inc., which is engaged in the business of providing domestic commercial airline transportation for passengers and freight.COEX hired plaintiff as a Line Flight Attendant on December 27, 1989.See Deposition Transcript of Plaintiff Marsha Tomlinson, page 77 at lines 18-20. Plaintiff held that position of Line Flight Attendant until November 1, 1994 when she was promoted to Inflight Services Manager for COEX's Newark hub. Tr1, page 28 at lines 3-4; Tr1, page 86 at lines 6-12. In April 1996, plaintiff was given responsibility for COEX's Cleveland hub. Tr1, page 28 at lines 8-11.
This Court will refer to the deposition transcript of Plaintiff Marsha Tomlinson as "Tr1."
In April 1996, the Inflight Department was structured as follows: Line Flight Attendants reported to Inflight Services Managers, Inflight Services Managers reported to the Director of Inflight and the Director of Inflight and the Director of Inflight Training both reported to the Senior Director of Inflight. During this time, Kristen Brookshire ("Brookshire") was the Inflight Services Manager for COEX's Houston hub and plaintiff was the Inflight Services Manager for COEX's Newark and Cleveland hubs. See Deposition Transcript of Shan Sutton-Bradley page 114 at lines 4-24.
This Court will refer to the deposition transcript of Shan Sutton-Bradley as "Tr2."
On May 1, 1996, COEX hired a new Senior Director of Inflight, Shan Sutton-Bradley ("Sutton-Bradley"). Tr2, page 7 at lines 5-10. Upon being hired for this position, Sutton-Bradley was instructed that one of her first assignments was to restructure the Inflight Department the purpose of which was to address both the low morale and high turnover rate among its flight attendants. Tr2, page 16 at lines 8-17; page 18 at lines 12-21; page 19 at lines 18-23. Sutton-Bradley immediately began the restructuring process. See id.
As part of the restructuring process, COEX created six new Base Manager positions, two at each hub, to replace the three Inflight Services Manager positions. The position of Inflight Services Manager involved more administrative job responsibilities than managerial duties whereas, the focus of the new Base Manager positions was on interpersonal skills, counseling and coaching of flight attendants. Tr1, page 154 at lines 14-25; Tr1, page 155 at lines 1-4.
On May 23, 1996, prior to COEX posting the six vacant Base Manager positions, Sutton-Bradley met with and advised the current Inflight Services Managers, namely, plaintiff and Brookshire, of the restructuring of the Inflight Department. Tr2, page 152 at lines 4-25. Sutton-Bradley informed plaintiff and Brookshire that if they were interested in the Base Manager positions they, like everyone else, needed to apply for the positions. See id. Both plaintiff and Brookshire applied for the Base Manager positions. Tr1, page 93 at lines 6-9. In July 1996, the six Base manager positions were posted. Tr2, page 152 at lines 20-25.
In June 1996, Sutton-Bradley also invited plaintiff to apply for the positions of Director of Inflight Services and Director of Inflight Training. Tr1, page 94 at lines 21-25; page 95 at lines 1-2. Plaintiff applied for both the Director of Inflight Services and Director of Inflight Training positions. Tr1, page 94 at lines 3-14; page 95 1-19. Although plaintiff was given an interview for both positions, she was not selected for these positions. Tr1, page 110 at lines 5-25; page 111 at lines 1-8. Instead, Colleen Roth ("Roth") was selected as the new Director of Inflight and Penny Saefke ("Saefke") was chosen to remain the Director of Inflight Training. Tr1, page 111 at lines 10-13. The fact that plaintiff was not offered either the Director of Inflight Services or the Director of Inflight Training positions, however, is not being challenged by plaintiff.
To select the most qualified candidates for the Base Manager positions, COEX used its "Targeted Selection Process" which required that all applicants who were chosen to be interviewed for the Base Managers positions must be interviewed according to uniform criteria. Tr2, page 68 at lines 17-25; Tr2, page 69 at lines 1-13. The applicants were asked uniform, predetermined questions which COEX contends were designed to maximize the objectivity of the selection process. See id.
After an interview was concluded with a particular applicant, Roth and Saefke then assigned a score to each applicant's responses to the predetermined interview questions. Tr2, page 24 at lines 22-25; Tr2, page 25 at lines 1-5. The score for each response was determined by evaluating the applicant's answer pursuant to predetermined criteria. Tr2, page 24 at line 25; Tr2, page 25 at lines 1-5. The scores for all of the responses were then totaled and divided by the number of questions to determine the applicant's overall interview score. Tr2, page 28 at lines 7-23.
In August 1996, Roth and Saefke separately interviewed the entire pool of thirty-three applicants for the Base Manager positions. Tr2, page 22 at lines 19-25. On August 6, 1996, both Roth and Saefke interviewed plaintiff at the Newark International Airport for one of the Base Manager positions. Tr1, page 113 at lines 4-14. It is undisputed that both Roth and Saefke asked plaintiff questions from the Targeted Selection Interview Guides. Tr1, page 138 at lines 2-12; Tr1, page 138 at lines 19-25; Tr1, page 139 at lines 1-5. Plaintiff testified, via deposition, that there was nothing unusual about the interview process with Roth and Saefke. Tr1, page 121 at lines 21-23. In fact, plaintiff testified that all of the questions asked by Roth and Saefke were job related and concerned only job ability, performance and flight attendant interaction. See id.
Upon the conclusion of all thirty-three interviews, Roth and Saefke met to discuss the individual applicants and their respective scores. Tr2, page 29 at lines 24-25; Tr2, page 30 at lines 1-19. The top ten applicants for the Base Manager positions were identified and the list was submitted to Sutton-Bradley who interviewed only the top ten candidates from the list. Tr2, page 23 at lines 1-17. Plaintiff was one of the applicants granted an interview with Sutton-Bradley. Tr1, page 135 at lines 1-6.
Sutton-Bradley interviewed the candidates using the same criteria and interview guide as Roth and Saefke. Tr2, page 30 at lines 9-19. The questions asked by Sutton-Bradley concerned job ability, performance and flight attendant interaction. Tr1, page 138 at lines 1-12. Plaintiff deemed the questions asked by Sutton-Bradley "reasonable and job related." Tr1, page 139 at lines 14-16.
At the conclusion of the interviews conducted by Sutton-Bradley, Sutton-Bradley met with Roth and Saefke to discuss the ten candidates and their respective scores. Tr2, page 72 at lines 11-25; Tr2, page 181 at lines 3-25; Tr2, page 182 at lines 1-12. At the conclusion of the meeting, all three women agreed to six candidates who they believed were the most qualified for the Base Manager positions. Sutton-Bradley, Roth and Saefke did not consider plaintiff to be among the six most qualified candidates for the Base Manager positions. As a result, plaintiff was not offered one of the Base Manager positions. Tr2, page 21 at lines 10-17.
On August 23, 1996, Sutton-Bradley and Roth met with plaintiff at the Cleveland airport to inform her that she had not been selected for one of the Base Manager positions. Tr1, page 24 at lines 21-24. During this meeting, Sutton-Bradley explained to plaintiff that the reason why she was not selected for one of the Base Manager positions was because she was not among the top six scoring candidates. Tr1, page 152 at lines 1-10. Sutton-Bradley informed plaintiff that she could either return to a flight attendant's position or accept Sutton-Bradley's offer to assist her in locating a different position within the company which matched plaintiff's skills/qualifications. Tr1, page 152 at lines 1-16. Plaintiff then became "very upset" and "very emotional." Tr1, page 153 at lines 1-6.
As a result of the reaction she received, Sutton-Bradley offered plaintiff three weeks of paid leave to consider her options. Tr1, page 188 at lines 1-11. Plaintiff accepted COEX's offer of three weeks of paid leave to contemplate her choices. See id. By letter dated September 16, 1996, plaintiff informed Sutton-Bradley of her choice to return to a flight attendant position. Tr1, page 190 at lines 2-16. Plaintiff, however, did not return to work immediately. Instead, plaintiff requested and, although under no obligation to do so, management granted plaintiff additional paid leave through September 30, 1996. Plaintiff then requested an unpaid flight attendant leave of absence for October and November 1996. Tr1, page 192 at lines 1-10. Once again, management granted plaintiff's request. See id. From December 1, 19976 through July 1, 1997, COEX granted plaintiff's request for paid sick leave. See id.
On July 1, 1997, plaintiff eventually returned to work as a flight attendant. Tr1, page 171 at lines 15-24. To this date, plaintiff is employed by COEX as a flight attendant.
On September 16, 1997, plaintiff filed a Complaint in the Superior Court of New Jersey, Essex County, alleging that she was demoted from her position as an Inflight Manager to a Line Flight Attendant due to racial discrimination. See Complaint. More specifically, plaintiff alleges violations of: (1) the New Jersey Law Against Discrimination, N.J.S.A. § 10:5-12; (2) Title VII, 42 U.S.C. § 2000e, et seq.; (3) Article I, Section 1 of the New Jersey Constitution and (4) public policy of the State of New Jersey.
On January 20, 1998, COEX removed this matter to the United States District Court for the District of New Jersey. On March 12, 1998, plaintiff voluntarily dismissed all claims against defendant Colleen Roth, a co-worker, and the "John Doe" defendants.
DISCUSSION
I. Standard of Review for Summary Judgment
The standard governing a summary judgment motion is set forth in Fed.R.Civ.P. 56(c), which provides, in pertinent part, that:
[t]he judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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). A fact is material if it might affect the outcome of the suit under the governing substantive law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255 (1986).
Procedurally, the movant has the initial burden of identifying evidence that it believes shows an absence of genuine issues of material fact.Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). When the movant will bear the burden of proof at trial, the movant's burden can be discharged by showing that there is an absence of evidence to support the non-movant's case. Id. at 325. If the movant establishes the absence of a genuine issue of material fact, the burden shifts to the non-movant to do more than "simply show that there is some metaphysical doubt as to material facts." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
In this matter, there are no genuine issues of material fact and therefore, summary judgment is appropriate.
II. Race Discrimination
The basic framework applied by the courts when analyzing a race discrimination case brought pursuant to Title VII of the Civil Rights Act of 1964, as amended in 42 U.S.C. § 2000e, et seq., is provided in the landmark case, McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). TheMcDonnell Douglas case provides that in order to establish a prima facie case for racial discrimination pursuant to Title VII, a plaintiff must demonstrate by a preponderance of the evidence that: (1) she is a member of a minority group; (2) she applied and was qualified for a position for which the employer was seeking applicants; (3) despite her qualifications, she was rejected for the position; and (4) after she was rejected, the position remained open and the employer continued seeking applicants from persons with plaintiff's qualifications. McDonnell Douglas, 411 U.S. at 802. See also St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993); Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981). Establishment of the prima facie case gives rise to a presumption that the employer unlawfully discriminated against the employee. Hicks, 509 U.S. at 506.
The burden of production then shifts to the employer to articulate a legitimate, nondiscriminatory reason for the employee's rejection. Id. Once the employer articulates a legitimate, nondiscriminatory reason for the employment decision, the presumption of discrimination "drops from the case." Hicks, 509 U.S. at 507; Burdine, 450 U.S. at 255. Assuming that the employer articulates a legitimate, nondiscriminatory reason for the rejection, the burden of production shifts back to plaintiff to show that the proffered reason is merely a pretext for discrimination. Hicks, 509 U.S. at 507; McDonnell Douglas, 411 U.S. at 804. The ultimate burden of persuasion to show intentional discrimination lies with the plaintiff throughout the entire case. Hicks, 509 U.S. at 507.
The New Jersey Supreme Court has adopted the methodology of proof used in Title VII cases, i.e., the McDonnell Douglas framework, when analyzing discrimination claims brought pursuant to the New Jersey state law antidiscrimination statute, the New Jersey Law Against Discrimination ("NJLAD"). Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118, 1126 (D.N.J. 1990); Casseus v. Elizabeth General Medical Center, 287 N.J. Super. 396, 406 (N.J.Super.Ct. App. Div. 1996) (citing Dixon v. Rutgers, 110 N.J. 432, 443 (1988)).
In this matter, plaintiff is an African American female who was employed as an Inflight Services Manager at COEX. It is undisputed that she is a member of a protected class. On August 6, 1996, both Roth and Saefke, on behalf of COEX, interviewed plaintiff at the Newark International Airport for one of the newly created Base Manager positions. Since plaintiff was one of the Inflight Services Manager for COEX's Newark and Cleveland hubs at the time the interview took place, this Court will assume for purposes of this motion and the analysis contained herein that plaintiff was qualified for one of the Base Manager positions. Despite plaintiff's qualifications, she was rejected for one of the Base Manager positions. Finally, after she was rejected, the position remained open and COEX continued seeking applicants from persons with plaintiff's qualifications. Based upon the foregoing, it is clear that plaintiff has met the elements of a prima facie case.
In addition to the familiar "failure to hire" cases brought pursuant to Title VII and the NJLAD, the McDonnell Douglas framework has been extended to "failure to promote" and "demotion" cases brought pursuant to federal and state anti-discrimination laws. See generally , Peper v. Princeton Univ. Bd. Of Trustees , 77 N.J. 55, 84 (1978). Accordingly, it is inconsequential to this Court's analysis whether this Court deems plaintiff's cause of action a "failure to promote" or "failure to hire" case since the same analysis applies to both claims.
For purposes of this motion, COEX does not dispute that plaintiff has met all of the elements of a prima facie case.
An employer "satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision."Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (citing St. Mary's Honor Center v. Hicks, 509 U.S. 502, 506 (1993)). Accord Texas Department of Community Affairs v. Burdine, 450 U.S. 248, 254-55 (1981).
In this matter, COEX contends that the business decision not to hire/promote plaintiff to one of the Base Manager positions was based on a legitimate, nondiscriminatory reason: plaintiff was not one of the six most qualified applicants for one of the Base Manager positions. In essence, the evidence upon which COEX relies to support their position is the objectivity of the Targeted Selection Process itself and the final score each candidate received pursuant to the Targeted Selection Process. The evidence reveals that both Roth and Saefke asked plaintiff questions from the Targeted Selection Interview Guides. Tr1, page 138 at lines 2-12; Tr1, page 138 at lines 19-25; Tr1, page 139 at lines 1-5. Furthermore, plaintiff testified that all of the questions asked by Roth and Saefke were job related and concerned only job ability, performance and flight attendant interaction. See id.
Quite simply, COEX contends that plaintiff was not hired/promoted because she simply did not fare well on the exam and, in fact, received the lowest score in comparison to the six candidates who were chosen for the Base Manager positions. See Supplemental Certification of Robert H. Bernstein, Exhibit C. The Court finds that COEX has articulated a legitimate, nondiscriminatory reason for not offering plaintiff one of the Base Manager positions. Thus, the onus is on plaintiff to establish that the employment decision was a pretext for discrimination.
"[A] plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (i) discrediting the [defendant's] proffered reasons, either circumstantially or directly, or (ii) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating, or determinative cause of the adverse employment action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
To discredit the employer's proffered reasons, a plaintiff "cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent, or competent." Id. at 765 (citing Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 531, 533 (3d Cir. 1992), cert. denied, 510 U.S. 826 (1993)). "Rather, the non-moving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence," Ezold, 983 F.2d at 531, and hence infer `that the employer did not act for [the asserted] nondiscriminatory reasons.'" Id. (citingJosey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d Cir. 1993)).
In rebuttal, plaintiff contends that COEX's reasons for not hiring/promoting her to one of the Base Manager positions are pretextual. Specifically, plaintiff contends that COEX proffered reasons are pretextual because: (1) the candidates who were chosen for the Base Manager positions were less qualified than she was at the time of her "demotion;" (2) at the time of reorganization, the Inflight Services Manager position and the newly created Base Manager position were similar "if not identical" in substance; (3) the fact that Roth and Saefke presented Sutton-Bradley with their recommendations prior to the date upon which Sutton-Bradley began interviewing the top ten candidates indicates that Roth and Saefke influenced Sutton-Bradley's decision not to hire/promote plaintiff to one of the Base Manager positions; and (4) the Targeted Selection Process was not an objective method for interviewing prospective Base Managers but was, instead, a subjective tool used by COEX to exclude plaintiff from consideration.
This Court concludes, however, that the evidence in this case does not establish that COEX's articulated reasons for not hiring/promoting plaintiff were pretextual in nature. Simply stated, plaintiff does not discredit COEX's proffered reasons for the employment action nor does she produce any evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating, or determinative cause of the decision not to offer her one of the positions.
First, plaintiff's evidence appears to be limited to her reliance upon her own belief that she was more qualified than the other women selected for the Base Manager positions. However, plaintiff's subjective opinion of her qualifications is of no moment to this Court. In fact, the Third Circuit opined that:
. . . an employee's own view of her performance, or a court's view of an employee's performance, is not at issue in an alleged employment discrimination case. What is significant is the perception of the decision-maker . . . Absent discrimination, a company is privileged to make business judgments on an employee's status, `particularly when the decision involves subjective factors deemed essential to certain positions.'Johnson v. Penske Truck Leasing, Co., 949 F. Supp. 1153, 1172 (D.N.J. 1996) (citations omitted). See also Gustovich v. ATT, Inc., 972 F.2d 845, 848 (7th Cir. 1992) (holding that "an employee's self-serving statements about his ability, however, are insufficient to contradict an employer's negative assessment of that ability.").
Moreover, plaintiff has offered no evidence of COEX's "perception" of plaintiff other than the fact that COEX viewed her as not one of the top scoring candidates, according to the Targeted Selection Process. In support of her position that an employer cannot hide behind the "we're just seeking the `best' candidate" argument, plaintiff cites to Bray v. Marriott Hotels, 110 F.3d 986 (3d Cir. 1997). In that case, however, as well as in the present matter, the issue is not merely whether the defendant employer was seeking the "best" candidate but "whether a reasonable factfinder could conclude that [plaintiff] was not deemed the best because she is Black." Id. at 993. Here, plaintiff has not alleged facts sufficient to show that COEX or any of their employees harbored any discriminatory animus against plaintiff. Were such evidence present, it may lead a reasonable factfinder to conclude that plaintiff could never be deemed the "best" at COEX because she is Black. Yet, that is not the case here. Plaintiff testified that she had a good working relationship with her co-workers, particularly, Saefke, who was one of her evaluators during the interview process. Tr1, page 58 at lines 21-25; Tr1, page 59 at line 20; Tr1, page 201 at lines 4-23. Accordingly, there is simply no evidence in the record to substantiate plaintiff's mere allegations that the decision not to offer her one of the Base Manager positions was due to her race.
Second, it is irrelevant whether at the time of reorganization, the Inflight Services Manager position and the newly created Base Manager position were similar "if not identical" in substance. Unless plaintiff can point to any evidence, direct or circumstantial, which would allow a reasonable factfinder to conclude that the restructuring of the Inflight Services Department was part of an elaborate scheme to eradicate African American employees from COEX, namely, plaintiff, then plaintiff's unsubstantiated argument must fail. Since plaintiff concedes that the restructuring of the Inflight Services Department is not part of a such a scheme, plaintiff's argument must fail. See Transcript of Oral Argument, page 19.
Third, the fact that Roth and Saefke presented Sutton-Bradley with their recommendations prior to the date upon which Sutton-Bradley began interviewing the top ten candidates does not, without more, indicate that Roth and Saefke influenced Sutton-Bradley's decision not to hire/promote plaintiff to one of the Base Manager positions. Once again, plaintiff does not allege any facts amounting to discriminatory animus or a discriminatory reason why COEX's employees would have conspired to exclude plaintiff from one of the positions.
Finally, plaintiff challenges the "subjectivity" of the Targeted Selection Process. More specifically, plaintiff contends that the fact that her scores were lowered at a time subsequent to her interview means that the Targeted Selection Process is not an objective measure. Even assuming arguendo that this Court finds that the Targeted Selection Process allows for a certain degree of subjectivity, such subjectivity in employment decisionmaking does not invariably lead to decisions being made in a discriminatory manner. See Ezold v. Wolf, Block, Schoor and Solis-Cohen, 983 F.2d 509, 527 (3d Cir. 1992), cert. denied, 510 U.S. 826 (1993).
CONCLUSION
Based upon the foregoing, this Court concludes that plaintiff has not demonstrated sufficient weaknesses implausibilities, inconsistencies, incoherencies, or contradictions in COEX's proffered legitimate reasons for its action that a reasonable factfinder could rationally find them "unworthy of credence" and hence infer that COEX did not act for the alleged nondiscriminatory reasons.
The remaining allegations set forth in plaintiff's Complaint, particularly, the Article I, Section 1 of the New Jersey Constitution and public policy of the State of New Jersey claims are likewise DISMISSED WITH PREJUDICE pursuant to the same reasoning.