Opinion
CIVIL NO. 98-CV-1755 (JBS).
December 28, 1999
Stephen G. Console, Esquire, Joseph J. Ayella, Esquire, Haddon Heights, New Jersey, Attorneys for Plaintiff.
Russell L. Lichtenstein, Esquire, Eileen A. Oakes, Esquire, Cooper Perskie April Niedelman Wagenheim and Levenson, P.A., Atlantic City, New Jersey, Attorneys for Defendants.
O P I N I O N
I. INTRODUCTION
In this employment discrimination case, plaintiff Joan Wagner-Zimmerman has brought suit against her former employers Trump's Castle Associates ("TCA"), TCA's successor in interest Trump's Castle Casino Resort ("TCCR"), and Trump's Casino Services ("TCS"), alleging that the defendants' decisions to eliminate her old job and not to hire her for a new position following the reorganization of her department were based on her gender and age, and violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), as amended 29 U.S.C. § 621 et seq., and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Additionally, she claims that, TCA breached her employment contract by requiring her to perform consulting work in return for agreed-upon severance payments. Presently before the Court are the parties' cross-motions for summary judgment on all issues of liability pursuant to Rule 56(c), Fed.R.Civ.P. The primary issues for decision are whether defendant TCS's stated reasons for not hiring plaintiff are a pretext to disguise their impermissible consideration of her age and gender in deciding not to hire her, and whether TCA breached plaintiff's employment contract as a matter of law. For reasons discussed herein, the Court will deny plaintiff's motion in its entirety. Turning to consider defendants' motion, the Court next will grant defendants' summary judgment motion as to plaintiff's allegations of discriminatory discharge, and will also grant defendants' summary judgment motion as to plaintiff's breach of contract claims. However, the Court finds that plaintiff has met her burden of raising a genuine issue of material fact whether the reasons stated for her non-hiring by TCS are pretextual, and will therefore deny defendants' motion as it pertains to her discrimination claims arising from TCS's failure to hire her.
II. BACKGROUND
Plaintiff began working for Trump Castle Associates ("TCA") in 1985 as Director of Human Resources. In January 1992, she was promoted to the position of Vice-President of Human Resources, the position she held until her termination. Throughout her employment at TCA, plaintiff received consistently high reviews, and was considered a valuable and excellent employee. (Deposition of Roger P. Wagner, TCA President and C.O.O. ("Wagner Dep.") at 56, Pl.'s first Ex. 5.)
On April 3, 1992, plaintiff executed a one-year employment contract with TCA. This initial contract was later incorporated into and extended by an agreement dated February 24, 1993 which created an annually renewing twelve-month contract. The contract provided for automatic twelve-month extension upon expiration of the contract, but allowed TCA to terminate the contract upon thirty days notice. If TCA chose to terminate the renewal for reasons other than cause, plaintiff was to receive one year's salary, but TCA retained the discretion to determine whether plaintiff was required to work during the twelve months following the termination of the renewal period. Specifically, TCA retained the discretion to "either continue your employment through the Expiration Date, pay you the full amount of your salary through the Expiration Date, or continue your employment for an amount of time less than the Expiration Date with the payment of the remainder of your salary through the Expiration Date." (Def.'s Ex. C.) Furthermore, plaintiff's ability to collect her salary during this final year was contingent upon her signing of "such release agreements as TCA may require." (Id.)
Trump Casino Services ("TCS") was formed in early 1996 for the purpose of, among other things, providing Human Resources services to a newly formed Trump entity called Trump Hotel and Casino Resorts ("THCR"). THCR was a publicly traded company which acquired Trump Plaza and Trump Taj Mahal. The creation of TCS was intended to increase operating efficiency and reduce costs by eliminating superfluous staff and consolidating departments throughout THCR properties. (Certification of Robert Pickus, 36:22 to 38:5, Def.'s Ex. D.)
In May 1996, plaintiff and other TCA employees were informed that TCA also was to be incorporated into THCR. Plaintiff was informed that after this happened, TCS was to provide the human resources services then performed by her department, and that her position and several others at TCA would be eliminated. (Compl. Ex. A.) Robert Wagner, President of TCA, told plaintiff and other TCA employees that if they wanted positions with TCS they should apply for them. In any event, Wagner announced, TCA would release all TCA employees from their employment due to the consolidation. (Deposition of Joan Wagner-Zimmerman ("Pl. Dep.") at 64:11 to 65:12, 70:3-15, Def.'s Ex. F.) It is undisputed that plaintiff did not apply for any positions with TCS, (id. at 74:5-7, 75:10-17), and, when a meeting was held regarding the availability of positions with TCS, plaintiff did not express an interest in any of the positions and merely offered to collect the resumes, (id. at 117:1 to 121:5).
Plaintiff had long planned to move to Colorado from her present home in New Jersey. Even before it became public knowledge that TCA was to be folded into THCR, most of the managers, directors and employees with whom plaintiff worked knew of her plans to relocate to Colorado. (Id. at 239:16-24.) Plaintiff also told Robert Wagner on several occasions that she intended to move to Colorado and retire. (Id. at 76:12-20.) Once there, plaintiff intended to run the "Dinky Dairy and Grill", a commercial property she had purchased in 1994. (Id. at 13:10-19.)
On July 26, 1996, plaintiff received written notification from Robert Wagner that TCA had exercised its option not to automatically extend plaintiff's contract, and that plaintiff's employment contract would then expire on August 25, 1997. (TCA's July 26, 1996 Ltr. to Pl., Def.'s Ex. I.) The letter went on to explain that Trump intended to pay plaintiff the full amount of her salary through August 25, 1997 and to release her from her employment at TCA. (Id.) The letter concluded by stating that the "Legal Department will prepare a Release to be executed by you in consideration for the payment of the severance amount." (Id.)
On September 27, 1996, Mr. Wagner sent a letter advising plaintiff her last day on the job as Vice-President of Human Resources at TCA would be September 29, 1996. (Def.'s Ex. J.) This letter also enclosed a release agreement dated September 30, 1996, which defendant was required to sign in order to receive the twelve months' salary provided for in the Employment Contract. (Def.'s Ex. K.) Among other things, this release agreement provided that, in return for the payments, plaintiff would forego any rights and claims against TCA, including charges of sex and age discrimination. (Id. at ¶ 3.)
Three days later, on October 3, 1996 plaintiff received a second and superseding form of release via fax from Patricia Wild, Esq., General Counsel at TCA. (Def.'s Ex. J.) This agreement's terms were materially different that those of the initial release, and provided that, in addition to being required to forego any claims against TCA, plaintiff would be also be required to enter into a consulting agreement, attached thereto as Exhibit A. This consulting agreement was essentially a separate employment contract to last from October 1, 1996 through March 31, 1997, extendable for an additional six months at TCA's discretion, under which plaintiff would provide consulting services in return for a minimum of $9,500.00 monthly. (Def.'s Ex. M.) In plaintiff's view, this Consulting Agreement went far beyond a release agreement, breached TCA's promise to pay her one year's severance pay in the event of her termination without cause, and required her to do additional work in return for the severance pay that she was already owed. (Pl. Dep. at 138:11, 139:1.)
Plaintiff refused to sign either of TCA's proposed releases. Soon thereafter, beginning on November 22, 1996, plaintiff filed EEOC complaints against TCCR and TCS alleging gender and age discrimination in connection with her termination from employment and TCS's decision to hire a younger male to fill the position equivalent to the one she held at TCA. After the EEOC issued the required consent to sue form on March 30, 1998, plaintiff filed the present Complaint in this Court on April 15, 1998, claiming that the defendants' decision to eliminate her old job and not to hire her for a new position following the reorganization of her department were based on impermissible considerations of her gender and age, and violated Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq., and the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1 et seq. Additionally, plaintiff claims TCA breached her employment contract by requiring her to perform consulting work in return for payment of a contracted-for severance payment.
III. DISCUSSION
A. Summary Judgment Standard
In motions for summary judgment, the Court may grant such motion only when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). An issue is "genuine" if it is supported by evidence upon which a reasonable jury could return a verdict for the nonmoving party.Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if a dispute about it might affect the outcome of the suit under the governing substantive law. Id. In deciding whether a genuine issue of material fact exists, the court must view the facts in the light most favorable to the nonmoving party and extend all reasonable inferences to that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The moving party always bears the initial burden of demonstrating the absence of a genuine issue of material fact, regardless of which party ultimately would have the burden of persuasion at trial. Celotex, 477 U.S. at 323. Once the moving party has met its opening burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. at 324. The nonmoving party may not rest upon the mere allegations or denials of its pleadings. Id. "[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Id. at 322. "When the record is such that it would not support a rational finding that an essential element of the nonmoving party's claim or defense exists, summary judgment must be entered for the moving party." Turner v. Schering-Plough Corp., 901 F.2d 335, 341 (3d Cir. 1990) (emphasis in original).
The standard by which the court decides a summary judgment motion does not change when the parties file cross-motions. Weissman v. United States Postal Service, 19 F. Supp.2d 254 (D.N.J. 1998). When ruling on cross-motions for summary judgment, the court must consider the motions independently, Williams v. Philadelphia Hous. Auth., 834 F. Supp. 794, 797 (E.D.Pa. 1993), aff'd, 27 F.3d 560 (3d Cir. 1994), and view the evidence on each motion in the light most favorable to the party opposing the motion, see Matsushita, 475 U.S. at 587.
B. Burdens of Proof for Discrimination Claims
Plaintiff has made claims of discrimination under the NJLAD, Title VII, and the ADEA. These acts are all governed by the same standards and proof structures applied in Title VII jurisprudence. Waldron v. SL Industries, Inc. 849 F. Supp. 996, 1000 (D.N.J. 1994).
1. Direct Evidence of Discrimination
The Court first addresses the parties' cross motions on the issue of direct evidence of age discrimination in violation of the ADEA. Plaintiff claims that it has adduced direct evidence of discrimination by TCS by establishing that the primary reason that plaintiff was not hired for employment at TCS was her well known plan to "retire to Colorado", and that this admitted consideration of retirement constitutes an admission of age discrimination.
In cases where a plaintiff alleges direct discrimination, what is needed is a "smoking gun". Armbruster v. Unisys Corp., 32 F.3d 768, 782 (3d Cir. 1994) (citing Price Waterhouse v. Hopkins, 490 U.S. 228 (1989) (plurality)). The plaintiff faces a "high hurdle" if she wishes to base her discrimination case on direct evidence, and "`the evidence must be such that it demonstrates that the decision makers placed substantial negative reliance on an illegitimate criterion in reaching their decision.'" Salley v. Circuit City Stores, Inc., 160 F.3d 977, 976 (3d Cir. 1998) (citing Price Waterhouse, 490 U.S. at 277). To succeed, the direct evidence must be "`so revealing of discriminatory animus that it is not necessary to rely on any presumption from the prima facie case to shift the burden of production.'" Salley, 160 F.3d at 976 (quotingArmbruster, 32 F.3d at 778.)
In this case, plaintiff's proffered direct evidence of discrimination fails to meet the high hurdle required for direct evidence cases. For example, through discovery she has found no witnesses or evidence stating that the TCS defendants had a discriminatory policy or that comments were made about her age. The only evidence plaintiff proffers in support of her direct-evidence theory is Mr. Wagner's statement that TCS's hiring decision not to hire plaintiff was based on the pervasive knowledge that plaintiff was planning to retire to Colorado and work at a small diner she had bought.
Plaintiff argues that a reference to her retirement is tantamount to a reference to her age, and that the defendants' admission that they refused to hire her based on plaintiff's intent to "retire to Colorado" is direct evidence of discrimination. However, plaintiff has admitted that it was widely known that she planned to move someday. While retirement may be associated with age, there is no suggestion in the record before the Court that defendants' agents thought plaintiff's retirement was contingent upon her reaching a certain age. Instead, it is entirely reasonable to interpret any reference to her plans to retire to Colorado as focused on geography and change of career path, rather than age. Defendants' reliance on the fact that plaintiff planned to move and launch a different career therefore does not present the "smoking gun" necessary to establish direct discrimination. For these reasons, plaintiff does not meet the stringent proof requirements for direct evidence of discrimination and must prove her discrimination claims, if at all, on the indirect evidence of discrimination present in the record.
2. Indirect Evidence of Discrimination
Without direct evidence of discrimination, the summary judgment motions in this case are governed by the burden shifting provisions laid down inMcDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973), as refined inTexas Department of Community Affairs v. Burdine, 450 U.S. 248, 252-253 (1981). See Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1114 n. 5 (3d Cir. 1997) (en banc) (citing Grigoletti v. Ortho Pharmaceutical Corp., 570 A.2d 903 (N.J. 1990) (McDonnell Douglas scheme applies under NJLAD)).
Under this framework, for all statutes involved, Title VII, the ADEA, and the NJLAD, the initial burden of production is on the plaintiff to establish a prima facie case of discrimination. Sheridan v. E.I. Dupont de Nemours and Co., 100 F.3d 1061 (3d Cir. 1996) (en banc), cert.denied, 521 U.S. 1129 (1997). The phrase "prima facie case" means that the plaintiff's burden is to produce enough evidence to permit the trier of fact to infer the fact at issue. Burdine, 450 U.S. at 254, n. 7.
To meet the prima facie burden, a plaintiff must show: (1) she is a member of a protected class; (2) that she was qualified for the position for which she was not hired; and (3) that nonmembers of the class were treated more favorably. Weldon v. Kraft, Inc., 896 F.2d 793, 797 (3d Cir. 1990). Thus, a defendant in a discriminatory failure to hire case is entitled to summary judgment if the plaintiff fails under this standard to establish a prima facie case of discrimination. Jalil v. Avdel Corp., 873 F.2d 701, 707 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990);Stinson v. Delaware River Port Auth., 935 F. Supp. 531, 539 (D.N.J. 1996), aff'd without op., 124 F.3d 188 (3d Cir. 1997).
Once a plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the failure to hire. McDonnell-Douglas, 411 U.S. at 802-03; Burdine, 450 U.S. at 253. An employer satisfies this burden by introducing evidence which, taken as true, would permit a trier of fact to conclude that unlawful discrimination was not the reason for the failure to hire. Burdine, 450 U.S. at 254-56 and n. 8. However, an employer need not prove that the proffered reason actually motivated its behavior. Id. Instead, it is sufficient if the defendants' evidence raises a genuine issue of material fact as to whether it discriminated against the plaintiff. Id. at 254 n. 7.
Once an employer meets its burden of producing a legitimate, nondiscriminatory reason for plaintiff's non-hiring, the burden of production shifts back to the plaintiff, who must show by a preponderance of the evidence that the employer's proffered explanation for the failure to hire is pretextual and that the employer's true motivation was discriminatory. McDonnell Douglas, 411 U.S. at 804-05; Burdine, 450 U.S. at 253, 256; Hicks, 509 U.S. at 507-08. "It is not enough . . . todisbelieve the employer; the factfinder must believe the plaintiff's explanation of intentional discrimination." Hicks, 509 U.S. at 519 (emphasis in original). However,
[B]ecause the factfinder may infer from the combination of the plaintiff's prima facie case and its own rejection of the employer's proffered nondiscriminatory reasons that the employer unlawfully discriminated against the plaintiff and was merely trying to conceal its illegal act with the articulated reasons, a plaintiff who has made out a prima facie case may defeat a motion for summary judgment by either (1) discrediting the proffered reasons, either circumstantially or directly, or (2) adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action. Thus, if the plaintiff has pointed to evidence sufficiently to discredit the defendant's proffered reasons, to survive summary judgment the plaintiff need not also come forward with additional evidence of discrimination beyond her or her prima facie case.Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994) (emphasis in original); accord Sheridan, 100 F.3d 1065-72 (reaffirming summary judgment standard set forth in Fuentes). A plaintiff can discredit an employer's explanation by demonstrating "such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its action that a reasonable factfinder could find them unworthy of credence and hence infer that the employer did not act for [the asserted] nondiscriminatory reasons." Fuentes, 32 F.3d at 765 (emphasis in original) (citations and internal quotes omitted). A defendant is entitled to summary judgment at this stage if the plaintiff has not produced sufficient evidence to rebut the defendant's proffered nondiscriminatory explanation for the failure to hire. Sheridan, 100 F.3d at 1072.
a. First Stage: Plaintiff's Prima Facie Case of Discrimination
In this case, this is no dispute as to whether plaintiff, a female over fifty years of age, is a member of a protected class for the purposes of Title VII, the ADEA and the NJLAD, and suffered an adverse impact when she was passed over for employment in favor of a younger male employee. (Def.'s Br. at 18.) For this reason, the Court finds that plaintiff has established a prima facie case of discrimination.
b. Second Stage: Defendants' Legitimate Reasons for Dismissal
Once a plaintiff has established a prima facie case, the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for the failure to hire. McDonnell-Douglas, 411 U.S. at 802-03; Burdine, 450 U.S. at 253; Hicks, 509 U.S. at 506-07. An employer satisfies this burden by introducing evidence which, taken as true, would permit a trier of fact to conclude that unlawful discrimination was not the reason for the failure to hire. Burdine, 450 U.S. at 254-56 and n. 8. However, an employer need not prove that the proffered reason actually motivated its behavior. Id. Instead, it is sufficient if the defendant's evidence raises a genuine issue of material fact as to whether it discriminated against the plaintiff. Id. at 254 n. 7; Sheridan, 100 F.3d at 1070.
The Court notes that plaintiff's case rests on two distinct theories of employment discrimination (1) discriminatory discharge and (2) discriminatory refusal to hire. Defendants dispute plaintiff's allegations of discriminatory discharge, asserting that there is no evidence that plaintiff's job was eliminated for discriminatory reasons. Instead, defendants argue, plaintiff's job was eliminated as part of TCCR's large-scale decision to dissolve TCA and eliminate all human resources positions within that company. As part of that consolidation effort, some TCA employees were to be rehired by TCS to perform essentially the same jobs with the new company, and others were not hired. The Court finds that this consolidation effort, which affected hundreds of Trump employees, was based on legitimate business concerns, and describes a non-discriminatory reason for the elimination of plaintiff's position. Plaintiff has adduced no evidence to the contrary. The Court also notes that because TCS had no role in the decision to dissolve TCA, and that plaintiff's allegations of breach of contract only state claims against TCA and its successor in interest, TCCR.
Next, defendants argue that there are legitimate explanations for TCS's decision not to hire plaintiff. First, according to the defendants, TCS did not hire plaintiff for a new position based on the wide-spread knowledge that she was planning to leave the area. It is uncontested that it was widely known that plaintiff had been planning to move to Colorado since 1988, had bought commercial and personal property in that state, and was planning to operate a diner that she owned there. Defendant TCS also argues that it did not hire plaintiff based on its perception that plaintiff was not interested in employment with TCS. This perception is founded on the fact that plaintiff never inquired into, nor exhibited any interest in the position of Vice President of Human Resources with TCS. (Pl. Dep. at 68:7-8, 75:22-76:4.)
The Court finds that by pointing to the wide-spread knowledge that plaintiff was planning to move to Colorado, and plaintiff's decision not to apply for work with TCS, defendant TCS has articulated legitimate, nondiscriminatory reasons for its decision not to hire plaintiff for a position equivalent to that which she held at TCA. This nondiscriminatory rationale for the hiring decision rebuts plaintiff's prima facie case of discriminatory failure to hire, and satisfies the second stage of theMcDonnell-Douglas framework.
c. Third Stage: Pretext
As a preliminary matter, the Court finds that plaintiff has come forward with no evidence whatsoever casting doubt on TCA's proffered explanation for eliminating her position as TCA's Vice-President of Human Resources. Because defendants have met their burden of producing a legitimate, nondiscriminatory reason for plaintiff's discharge, and plaintiff has not met her burden of showing that reasons give for her discharge are pretextual, and defendants' motion for summary judgment will be granted as to plaintiff's allegations of discriminatory discharge.
Turning to consider the failure to hire claims, because TCS has proffered a legitimate, nondiscriminatory reason for plaintiff's non-hiring, the burden of production shifts back to plaintiff, who must show that the explanation is pretextual. Plaintiff can show pretext by (1) discrediting Trump's explanation to such an extent that a reasonable factfinder could (1) disbelieve the proffered legitimate reasons, or (2) believe that an invidious discriminatory reason is more likely than not a motivating or determinative cause of the employer's action. Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108 (3d Cir. 1997) (en banc) (citing Fuentes, 32 F.3d 759). Thus, TCS is entitled to summary judgment at this stage if plaintiff has not produced sufficient evidence to rebut TCS's proffered nondiscriminatory explanation for the failure to hire.
Turning to a discussion of whether plaintiff has shown pretext in defendants' explanations of why she was not hired, plaintiff's chief argument is that, because Mr. Wagner has given inconsistent statements regarding his understanding of when plaintiff was planning to retire, his proffered explanations are unworthy of belief. In his Certification, Wagner stated that he thought that plaintiff was planning to retire to Colorado "within the near future". (Wagner Cert. at ¶ 12, Def.'s Ex. O.) In contrast, in his deposition testimony taken in preparation for this case, Wagner stated that he did not know when plaintiff was planning to retire, and could have been planning to retire "five Decembers from now". (Wagner Dep. at 133:15-17.)
The Court finds that this inconsistency in Mr. Wagner's statements could allow a reasonable factfinder to disbelieve TCS's proffered reasons for refusing to hire plaintiff. It is only logical that in order for plaintiff's move to be the real reason behind her non-hiring, defendants' must have believed that plaintiff was planning to leave soon. Otherwise, defendants should have considered plaintiff to be an employee with years of valuable service ahead of her, and there would be no reason not to consider her for a position with TCS. If, as far as defendants knew, plaintiff had no intention of leaving for years to come, this raises an issue as to the credibility of their stated reason that they didn't hire plaintiff because she was planning to move in the near future. The Court finds that the inconsistency in Wagner's testimony casts doubt on defendants' proffered reasons for discharge, and that this doubt could allow a reasonable factfinder to believe that defendants refused to hire plaintiff based on impermissible considerations.
This finding of a genuine dispute of material fact regarding pretext precludes summary judgment on all plaintiff's refusal to hire-based claims. Although plaintiff breaks up her pretext argument into two parts, first arguing pretext with respect to age, and second with respect to gender, the Court finds that Wagner's inconsistent statements raise an issue of pretext as to both plaintiff's gender and age claims. Thus, the Court finds that plaintiff has met her burden of coming forward with evidence creating a genuine question of material fact as to whether TCS's proffered reasons for refusing to hire her are pretextual. Accordingly, defendants' motion for summary judgment will be denied with respect to plaintiff's refusal to hire claims.
C. Plaintiff's Contract Claim
The parties have also cross-moved for summary judgment on the issue raised in Count IV of plaintiff's Complaint: whether TCA breached her employment contract by requiring her to perform consulting work in return for payment of a contracted-for severance payment.
This argument is premised on the clause in plaintiff's Employment Contract which provides that, if plaintiff is terminated for reasons other than for cause, and with thirty days notice
TCA may, in its sole discretion, offer to either continue your employment through the Expiration Date, pay you the full amount of your salary through the Expiration Date, or continue your employment for an amount of time less than the Expiration Date with the payment of the remainder of your salary through the Expiration Date. You shall, as a condition precedent to your receipt of the foregoing payments, execute such release agreements as TCA may require.
(Ltr. to Pl. dated February 22, 1993, Def.'s Ex. C. (emphasis added).) As discussed above, plaintiff was notified that her last day at work was to be September 29, 1996, and that the contract would expire on August 25, 1997.
Where the parties cross move on an issue of contract interpretation, there are no facts at issue, and the Court must interpret the contract as a matter of law. Where a contract's terms are clear, the Court must enforce it as written. County of Morris v. Fauver, 153 N.J. 80, 103 (1997). Interpretation of a written contract is a question of law for the Court, Emor, Inc. v. Cyprus Mines Corp., 467 F.2d 770, 773 (3d Cir. 1972), and it is axiomatic that in interpreting contractual agreements that the parties' intent, where clearly articulated, controls what is or is not covered by the agreement. Pennwalt Corp. v. Plough. Inc., 676 F.2d 77, 79 (3d Cir. 1982).
Here, under the plain terms of the operative employment contract, plaintiff was not owed a severance payment, but rather TCA retained the discretion to pay her last twelve months' salary in return for no work, part-time work, or full-time work. In order to be paid at all, however, plaintiff was required to sign "such release agreements as TCA might require". Under the terms of this agreement, then, it was clearly a condition precedent to payment of any sort that plaintiff sign a release agreement.
Plaintiff has admittedly not signed any part of the release agreement, and did not enter into the required consulting agreement. The Court finds that the employment contract is unambiguous in its requirement that plaintiff sign the required releases as a condition precedent to payment. Under the plain terms of the employment contract, then, because plaintiff has not signed the release, defendant was not obliged to pay her the twelve months' salary. Therefore, plaintiff is not entitled to the salary for 1996-97 as a matter of contract.
Even if the Court were to construe plaintiff's argument as asserting that TCA's insertion of the consulting agreement was an anticipatory breach of the employment contract, there is no evidence that TCA's requirement that plaintiff work during 1996-97 constituted such an anticipatory breach. To the contrary, the agreement specifically states that plaintiff might be required to work for all or some of the twelve months following the termination of her employment.
Furthermore, there is no merit in plaintiff's suggestion that TCA was required to give her work equivalent to that from which she was terminated. It is only logical that plaintiff would have to be employed in some other capacity than her original job as Vice-President at TCA. TCA was in the process of being dissolved, and defendants cannot be expected to place plaintiff in a job that no longer existed. The decision to have plaintiff work as a consultant, although requiring plaintiff to do a different type of work than that which plaintiff had been doing, was entirely within TCA's discretion reserved to it by the employment agreement.
The Court is unpersuaded by plaintiff's allegations that she did not truly understand the ramifications of the employment contract's continuing employment and release clauses. Plaintiff was for over ten years an executive in the Human Resources Department for TCA, a large corporation with hundreds of employees. In her capacity as Vice-President, plaintiff surely drafted many employment contracts herself. The Court rejects any suggestion that any reasonable jury could find that plaintiff was somehow unsophisticated, and did not understand what she was agreeing to when she signed the contract with TCA.
For foregoing reasons, the Court finds that the cross motions on plaintiff's contract claims are to be resolved in favor of the defendants, and summary judgment will be entered in favor of defendants as to plaintiff's Count IV.
IV. CONCLUSION
For the reasons discussed in this Opinion, the cross motions to dismiss pursuant to Fed.R.Civ.P. 56(c) are granted in part and denied in part. Plaintiff's contract claim, Count IV, will be dismissed in its entirety. The Court will also dismiss the aspects of plaintiff's Complaint that state claims of discriminatory discharge by TCA. However, the Court will deny defendants' motion for summary judgment against plaintiff's claim of discriminatory refusal to hire by TCS. Thus, this case will be tried upon plaintiff's remaining claims against TCS alone in Counts One, Two, and Three, namely, that TCS violated Title VII, the ADEA, and the NJLAD by refusing to hire her based on impermissible considerations of her gender and age. The accompanying order is entered.
O R D E R
This matter having come before the Court upon the parties' cross-motions for summary judgment on all issues pursuant to Fed.R.Civ.P. 56(c); and the Court having considered the submissions of the parties; and for the reasons stated in the Opinion of today's date;
IT IS this day of December, 1999, hereby
ORDERED as follows:
(1) Defendants' motion for summary judgment hereby is GRANTED in part as to plaintiff's breach of contract claims against defendant Trump's Castle Associates, d/b/a Trump's Castle Casino Resort, in Count IV, and Count IV is hereby DISMISSED; and
(2) Defendants' motion for summary judgment hereby is GRANTED in part as to plaintiff's discriminatory discharge and discriminatory failure to hire claims against defendant Trump Castle Associates, and all claims against defendant Trump's Castle Associates d/b/a Trump's Castle Casino Resort in Counts I, II, III are hereby DISMISSED; and
(3) Defendant Trump's Casino Services, Inc.'s and Plaintiff's cross-motions for summary judgments are DENIED in all other respects, and the question of whether defendant Trump Casino Services refused to hire plaintiff because of her gender and age as alleged in Counts I, II, and III shall be determined after a trial by jury on a date to be set by the Court.