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July 30, 2003


The opinion of the court was delivered by: Gerard E. Lynch, District Judge


Clara Domb brings this action against her former employer, Metropolitan Life Insurance Company ("Met Life"), alleging that she was subject to a hostile work environment in violation of Title VII of the federal Civil Rights Act of 1966, and fired in violation of both Title VII and the Age Discrimination in Employment Act ("ADEA"). She also makes similar claims under the New Jersey Law Against Discrimination ("LAD"). Met Life moves for summary judgment. The motion will be denied as to Domb's hostile work environment claims and granted as to her retaliation and age discrimination claims.


The following facts are undisputed unless otherwise indicated. Met Life hired Domb in 1982 as a sales representative. Beginning in July 1995, Domb worked under Manager Frank [ Page 2]

Dunn in Met Life's Howell, New Jersey office, and in January 1996, Domb and Dunn were both transferred to a Tinton Falls, N.J. office, reporting to Managing Director Chris Riddle. Domb reported directly to Dunn at all times.

Domb alleges that "[o]n at least a weekly basis during the period of 1995 or 1996 until her . . . termination, Dunn addressed Domb and referred to her in her presence with racial, ethnic, age-based and gender-based slurs." (Compl. ¶¶ 9, 19.) At depositions, Domb testified that:

• Dunn would regularly introduce her to new recruits as "The Spanish Jew who is the pain in the ass troublemaker" (Domb 5/6/02 Tr. 238; see also Eikenberry Affid. Ex. 1);
• On a single occasion sometime in the winter of 1997, Dunn commented to her "You think you are a smart Hebe" (Domb 5/6/02 Tr. 237, 240);
• "[A] few" or "ten" times, Dunn told her she was "over the hill"; the first of these was sometime between 1995 and 1997 (Domb 8/21/02 Tr. 17-18);*fn1
• For "a few Fridays in a row, maybe two or three months" after her divorce in the summer of 1997, when she worked late, Dunn ridiculed her for being a single woman by asking her "Why don't you have a date tonight, Clara?" (Id. 18-19.)
In an April 9, 2003, affidavit, prepared well after Met Life's motion papers were filed,*fn2 Domb reasserts much of the above and also states that: [ Page 3]
• On at least two occasions, Riddle, referring to Domb's change of name following her divorce, said in the presence of co-workers "this is my new rep, Clara Domb" (Domb. Affid. ¶ 50);
• "Dunn would frequently say, throughout the period of [her] divorce through [her] termination, `Who is this Clara Domb? Who is this rep?'"
• From "1997 through [her] termination," Dunn asked her "unwelcome personal questions about [her] relationship with [her] ex-husband" (Id. ¶ 52);
• "[T]hroughout the period" she worked for him, Dunn referred to her as "the Jewish rep" and "the Spanish rep" and on "numerous occasions" he said to her "Maybe you can go sell life insurance to some Jews." (Id. 55-56.)
After the alleged "smart Hebe" remark, Domb wrote a letter to Dunn, dated November 10, 1997, complaining about that remark and also about his more general tendency to refer to her as a "Jew" or as "the Jewish rep." (Eikenberry Affid. Ex. 1.) Nearly three years later, after a confrontation with Dunn, described below, over allegations that Domb had violated company policies, she filed another complaint with the Tinton Falls Agency Administrator, Marion Dellova. This second complaint, though largely about Dunn's behavior during the confrontation, made reference to the "smart Hebe" incident and stated that Dunn "rarely misses an opportunity to remind me that I am a Jew, a woman, a foreigner and Hispanic." (Id. Ex. 2.) Domb alleges that Met Life retaliated against her for the November 2000 complaint by terminating her employment on December 7, 2000. (Id. Ex. 4.)

Met Life documents an extended series of violations of company policy by Domb from before 1994 to November 2000, claiming that these were the true reasons for her dismissal. As of early 1994, when Domb was located at the Marlboro, NJ, office, and prior to her supervision by Dunn, about eighty percent of Domb's commissions came from a type of sale known as a group life insurance conversion. (D. Mem. 3.) These were individual life insurance policies sold to "departing employees of large corporations that provided group life insurance coverage, [ Page 4]

underwritten by MetLife, to their employees." (Id.) Conversion policies were attractive to some departing employees because obtaining one did not require "proof of insurability," i.e., a medical examination. Sales representatives at Met Life could in various ways obtain "leads" to prospective purchasers of conversion policies and would earn a commission when a policy was sold.

Without the knowledge or approval of Met Life, Domb had set up her own toll-free number to which "all group conversion inquiries received via the 1-800-MetLife number in the Warwick [N.J.] Customer Service Center were being referred." (O'Keefe Affid. Ex. E, Id. Ex. C, at 53-54.) Thus obtaining hundreds of leads each year, she would send out applications forms and accept completed applications by mail.

On April 22, 1994, Domb was informed that this "arrangement" would be discontinued because it was "in direct contrast to our group conversion procedures which require us to refer all calls to the `local' . . . Office." (Id. Ex. E.) That same day, Regional Underwriting Manager Brian Flynn sent a mass e-mail to Marlboro office personnel stating that "effective immediately we will no longer accept new business or group conversion application [sic] by mail."*fn3 (Id. Ex. F.) Domb claims she called Agency Vice President Mike Boruch, concerned that the new policy would [ Page 5]

dramatically reduce her sales, and was told "to go ahead with business as usual." (Id. Ex. C at 89-92; Ex. F.) But on June 2, 1994, after Met Life officials had requested, and Domb supplied, a more detailed explanation of "the evolution of [her] sales activity as it relates to . . . conversions" (Id. Ex. G, at 1), Marketing Vice-President Vincent Vitiello informed her, through Boruch, that she could not "do any business outside of the territory's state boundaries unless she personally sees the client." (Id. Ex. H; Ex. C, at 119-20.)

Under circumstances unclear from the record before the Court, Vitiello reiterated, and seems to have modified, his "position" regarding Domb's practices in a letter dated February 22, 1995; this time, Domb was directed to "personally meet with any clients . . . when they live within New York, New Jersey and Pennsylvania . . . completing] the application with them in person and witnessing] the new business signature." (Id. Ex. I, at 1 (emphasis added.)) When the client was not "within the tri-state area," the same was to be done by "a licensed field representative," with the commission to be split between Domb and that representative if Domb "ha[d] a current license in the state where the client resides." (Id.) Vitiello stressed "the severity of the situation" if any further violations of policy were "brought to [his] attention." (Id.) Another "stern warning" was apparently communicated to Domb on July 12, 1995, after her transfer to the Howell office, in which she was told that "a future infraction . . . could result in her immediate termination." (Id. Ex. J.)

The requirement that applications be completed in person was not the only Met Life policy that Met Life found Domb violated. In July 1996, Domb was reprimanded for using "unauthorized sales literature" (D. Mem. 7), that is, materials not approved by Met Life's law department. (O'Keefe Affid. Ex. K.) In August 1996, Domb was asked to write a letter [ Page 6]

acknowledging that "a violation of this rule could result in my termination." (Id. Ex. L.)

In December 1996, Met Life again found it necessary to issue a warning — indeed, a "final warning" — regarding Domb's compliance with group conversion procedures; any violation would result in "her immediate termination." (Id. Ex. M.) Although Domb had apparently not taken prior warnings of termination seriously (see id. Ex. C, at 157-58, 169, 200), she recognized this warning as a "real threat," if only because it came from Chris Riddle, whom she had only known for a short time. (Id. 214.)

Nevertheless, Met Life within two years came to believe (although Domb denies) that Domb continued to violate these policies, and that she had even advised clients to lie about where they had completed their applications. (Riddle Cert. Ex. C.) Met Life's Ethics and Compliance department "recommended termination of employment" (id. Ex. F), and its law department indicated that "this would be a defensible position." (Id. Ex. D, F.) However, Riddle recommended against firing her and her employment was continued with the condition that she agree to permit her activities to be "monitor[ed] very closely." (Id. Ex. E.) Domb signed a document ...

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