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August 12, 2003


The opinion of the court was delivered by: John Martin, District Judge


This is an action for damages alleging race discrimination and retaliation in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e, et seq. ("Title VII"), 42 U.S.C. § 1981 ("Section 1981"),*fn1 the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq. ("NJLAD"), the New Jersey Conscientious Employee Protection Act (N.J.S.A. 34:19-3A et seq.) ("NJCEPA") and for fraudulent misrepresentation under state law.*fn2 Defendants have moved for summary judgment seeking to dismiss these claims. [ Page 2]


Corey Cagle ("Plaintiff"), an African American, was hired by the Unisys Corporation ("Unisys") on June 3, 1996 as an Associate Account Representative in its Computer System Group. Initially, Cagle was required to work at the company's Berkeley Heights, New Jersey office where he received classroom and on-the-job training.

In January 1997, Cagle joined the company's Eastern Financial Area Computer System Group which was based in New York City. At that time, Cagle was also promoted to the position of Account Representative with an annual salary of $33,000 and thereafter qualified to receive incentives for meeting certain business objectives.

In August 1997, Angelo Calicchia was promoted to Acting Sales Manager and given responsibility for the supervision of the sales team consisting of Cagle, Lehneis and Lewis. Following his promotion, Calicchia asked the team to work out of the company's New York City offices. Cagle moved to the New York offices in late October, only after Calicchia had several discussions with him about it.

Since. he became Cagle's direct supervisor in 1997 until Cagle's termination in 1998, Calicchia consistently noted problems with Cagle's job performance. Calicchia was concerned that Cagle delegated too many potential deals to Value Added [ Page 3]

Resellers and focused too much on smaller deals. He also noted that Cagle's written work and his forecast of potential sales were often inaccurate. Finally, Calicchia observed that Cagle did not appear to work as diligently as his peers, that he was often the last to arrive to work and the first to leave, and that he continued to work from home more frequently than his peers, although he had been advised that working from home was discouraged.

In February 1997, Cagle and his Caucasian co-workers, Kirk Lehneis and Karin Lewis, were assigned performance objectives for the year. They were each evaluated against these objectives in January 1998.

Cagle's evaluation stated that he had "met" requirements. In the company's personnel data base, Cagle received an overall performance rating of "Medium" for 1997. Cagle generated approximately $157,000 in revenue in 1997.

Lehnais' evaluation stated that he "did not meet requirements." Lehnais nevertheless received an overall performance rating of "High" for 1997 in the company's personnel data base. Lehnais generated $48,000 in sales in 1997, but forecasted, in October 1997, that a sale for $300,000 would be made in 1998. As predicted, the sale was made in January 1998. In November 1997, Lehnais received a lump sum bonus for his work in generating business from a key client and from the banks [ Page 4]

assigned to him.

Lewis' evaluation stated that she "did not meet requirements." In the company's personnel data base, Lewis received an overall performance rating of "Medium" for 1997. Lewis generated $64,000 in sales that year.

In January 1998, Cagle was given a salary increase of $3,000. Lehnais and Lewis were each given a salary increase of $6,000.

On February 3, 1998, at the Unisys sales meeting in Philadelphia, Cagle did not attend the Business Partner Session. When Calicchia asked Cagle to explain his absence, Cagle responded that he had decided to skip the session because he had heard that it would be boring and did not think it was mandatory and that Calicchia should "just give [him] a negative mark for attendance."

That month, Calicchia met with Cagle to help him prepare for a sales presentation he was to give to senior management in March. According to Calicchia, Cagle's sales forecasts were inaccurate and his presentation was ready only after substantial revisions. After their meeting, Calicchia informed Cagle that he was unhappy with Cagle's work. In late February of 1998, Cleeland, Calicchia's supervisor, also told Cagle that he was concerned with Cagle's work to date.

Cagle claims that he made a verbal complaint about [ Page 5]

discrimination in February 1998 "in a way that was intended to bring about more equal treatment, without, hopefully, generating retaliation against [him]. He did not want to antagonize his supervisors. He made his complaints verbally and discreetly." Plaintiff does not provide further detail about this complaint so that it is not even clear to whom he made it, though he claims that "instead of correcting the disparity, he was being placed under greater scrutiny and was being subtly criticized, ostracized and, in other respects, treated less favorably than Lehneis and Lewis." Defendants' managers deny knowledge of any discrimination claims made by Cagle at this time.

Despite having been informed of concerns about his work, Cagle arrived late for work on March 3 and 4 and gave a poor sales presentation to senior management on March 4. The senior management present at the sales meeting were disappointed with the quality of Cagle's presentation and became concerned with his overall work performance. They determined that Cagle should be placed on the company's Corrective Action Plan ("CAP").

After the presentation, Calicchia spoke with Cagle about the problems with his presentation and his work in general. Calicchia also met with Cagle on April 2, 1998 and informed him of the need for improvement in his work. Cagle's notes of that meeting state, in part: "I was reinformed by you, your position with regard to working from home, time spent within the Wall [ Page 6]

Street Office, where my time is spent with regards to larger opportunities, my effort with regards to covering my territory and completing area review forms."

Notwithstanding this meeting, Cagle left a message for Calicchia the next day informing him that he would be leaving the office early that day. On April 7, Cagle left a message for Calicchia informing him that he would be ...

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