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September 3, 2005.


The opinion of the court was delivered by: JOHN KOELTL, District Judge


The plaintiff, Chester Matlosz, brought this action against his former employer, JPMorgan Chase Bank ("JPMorgan Chase" or "Chase"), incorrectly named as J.P. Morgan Chase in the caption, and a Chase Senior Vice-President, Ram Dhindhwal ("Dhindhwal"), incorrectly named as Ram Dhindwhal in the caption, seeking compensatory and punitive damages for retaliatory discharge, discriminatory conduct, slander, and breach of contract.

The plaintiff asserts (1) claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., alleging that he was discharged in retaliation for his complaining about discriminatory treatment, was subjected to a hostile work environment, and was discriminated against and harassed based on sex; (2) claims of retaliation and discrimination under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1 et seq., and Whitman Executive Order No. 106; (3) slander and slander per se claims alleging that Dhindhwal falsely accused the plaintiff of being a sexual harasser; and (4) a breach of contract claim alleging that his actions were protected by the Chase Employee Relations Manual ("Manual").*fn1

  The defendants have moved for summary judgment. They argue, among other things, that the plaintiff cannot show that he was subjected to discrimination or retaliation based on any protected classification, that the claims of slander and slander per se are precluded by the doctrine of qualified privilege, and that the Manual did not alter the plaintiff's status as an at will employee.


  The standard for granting summary judgment is well established. Summary judgment may not be granted unless "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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986); Gallo v. Prudential Residential Servs. Ltd. P'ship, 22 F.3d 1219, 1223 (2d Cir. 1994). "[T]he trial court's task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not extend to issue-resolution." Gallo, 22 F.3d at 1224. The moving party bears the initial burden of informing the district court of the basis for its motion and identifying the matter that it believes demonstrates the absence of a genuine issue of material fact. Celotex, 477 U.S. at 323. The substantive law governing the case will identify those facts that are material and "only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986); see also Consol. Edison, Inc. v. Northeast Utilities, 332 F. Supp. 2d 639, 642 (S.D.N.Y. 2004).

  Summary judgment is appropriate if it appears that the non-moving party cannot prove an element that is essential to the non-moving party's case and on which it will bear the burden of proof at trial. See Cleveland v. Policy Mgt. Sys. Corp., 526 U.S. 795, 805-06 (1999); Celotex, 477 U.S. at 322; Powell v. Nat. Bd. of Med. Exam'rs, 364 F.3d 79, 84 (2d Cir. 2004). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. T.R.M. Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994). If the moving party meets its initial burden of showing a lack of a material issue of fact, the burden shifts to the nonmoving party to come forward with "specific facts showing that there is a genuine issue for trial." Fed.R.Civ.P. 56(e). The nonmoving party must produce evidence in the record and "may not rely simply on conclusory statements or on contentions that the affidavits supporting the motion are not credible." Ying Jing Gan v. City of New York, 996 F.2d 522, 532 (2d Cir. 1993); see also Scotto v. Almenas, 143 F.3d 105, 114-15 (2d Cir. 1998); Singh v. New York City Off-Track Betting Corp., No. 03 Civ. 5238, 2005 WL 1354038, at *1 (S.D.N.Y. June 8, 2005); Consol. Edison, 332 F. Supp. 2d at 643. II.


  Unless otherwise noted, there is no dispute as to the following facts. The plaintiff, a resident of New Jersey, was born on August 4, 1958. (Defs.' Local Civil Rule 56.1 Stmt. ("Defs.' Stmt."), ¶¶ 5-6; Pl.'s Local Civil Rule 56.1 Stmt. ("Pl.'s Stmt."), ¶¶ 5-6.) He began working for Chase as a Vice President and Senior Project Manager on January 8, 2001, under the supervision of Thomas Radkiewicz, Director of Project Management, who himself reported to Robert Rupp, then Chief Technology Officer and Senior Vice President. (Defs.' Stmt. ¶¶ 8-9, 11; Pl.'s Stmt. ¶¶ 8-9, 11.)

  There is some confusion as to the initial significant contacts between the plaintiff and Dhindhwal, then Manager of Application Development and a Senior Vice President reporting to Rupp. (See, e.g., Defs.' Stmt. ¶ 13; Pl.'s Stmt. ¶ 13.) Generally, a series of events between March 2001 and June 2001 led to friction developing between the plaintiff and Dhindhwal. (Defs.' Stmt. ¶ 13; Pl.'s Stmt. ¶ 13.) For example, during that time period, the plaintiff was asked by Radkiewicz to produce a report on Dhindhwal's claim that Dhindhwal could complete a particular project by June 30, 2001. (Defs.' Stmt. ¶¶ 14-15; Pl.'s Stmt. ¶¶ 14-15.) The plaintiff concluded that Dhindhwal's projection was too optimistic. (Defs.' Stmt. ¶ 16; Pl.'s Stmt. ¶ 16.) At a meeting on April 5, 2001, attended by the plaintiff, Dhindhwal, Rupp, and Radkiewicz, among others, Dhindhwal got upset that his judgment was being questioned by the plaintiff, a new employee. (Defs.' Stmt. ¶¶ 18-19; Pl.'s Stmt. ¶¶ 18-19.) At the end of the meeting, Dhindhwal refused to shake the plaintiff's hand until told to do so by Rupp. (Defs.' Stmt. ¶ 20; Pl.'s Stmt. ¶ 20.)

  In August 2002, Rupp conducted a staff meeting, attended by Radkiewicz, Dhindhwal, and himself, among others, but not the plaintiff (the "August 2002 meeting"). (Defs.' Stmt. ¶¶ 22, 25; Pl.'s Stmt. ¶¶ 22, 25.) Dhindhwal allegedly made accusations at this meeting that some women had potential sexual harassment charges pending against the plaintiff. (Defs.' Stmt. ¶¶ 23-24; Pl.'s Stmt. ¶¶ 23-24.) Radkiewicz testified at his deposition that Dhindhwal said that two women had personally contacted Dhindhwal and told him that the plaintiff was harassing them. (Dep. of Thomas Radkiewicz, dated May 25, 2004 ("Radkiewicz Dep."), at 63, attached as Ex. 4 to Aff. of Adolph D. Seltzer ("Seltzer Aff.").) On the other hand, Dhindhwal testified at his deposition that he was actually told of the potential sexual harassment by Burhan Mahmoud, a male who worked for the plaintiff. (Dep. of Ram G. Dhindhwal, dated July 19, 2004*fn2 ("Dhindhwal Dep."), at 119-24, attached as Ex. 3 to Seltzer Aff.) Within a few days of the meeting, Radkiewicz called the plaintiff and informed him of Dhindhwal's accusations. (Defs.' Stmt. ¶ 23; Pl.'s Stmt. ¶ 23.)

  After learning what was said about him at the August 2002 meeting, the plaintiff contacted Niki Lombardo of Human Resources ("HR") to complain about Dhindhwal's behavior. (Defs.' Stmt. ¶¶ 26-27; Pl.'s Stmt. ¶¶ 26-27.) While on the phone with Lombardo, the plaintiff did not explicitly complain of discrimination based on age or gender; however, there is disagreement between the parties whether the plaintiff told Lombardo that he felt he was being sexually harassed. (Defs.' Stmt. ¶¶ 30-31, 34; Pl.'s Stmt. ¶¶ 30-31, 34.) In his deposition testimony, the plaintiff testified that he did not complain that he was "being discriminated against," but "everything [he] said to [Lombardo] would lead her to the conclusion [Dhindhwal] was discriminating against [him]" and that his complaint was not about a "personality dispute." (Dep. of Chester E. Matlosz, dated July 22, 2004 ("Pl.'s Dep."), at 126-27, attached as Ex. 2 to Seltzer Aff.) At his deposition, the plaintiff, when asked if he complained to Lombardo that he was being sexually harassed, responded that he "was not being sexually harassed." (Id. at 126.) Moreover, Lombardo never replied to the plaintiff that Dhindhwal's actions or statements constituted sexual harassment. (Id. at 138.)

  Thereafter, Lombardo organized a four-way telephone conference call between Dhindhwal, Radkiewicz, the plaintiff, and herself. (Defs.' Stmt. ¶ 38; Pl.'s Stmt. ¶¶ 25.d, 38.) During this telephone call, Dhindhwal was confronted by the plaintiff and Radkiewicz and eventually admitted to making the above-described statements about Matlosz at the August 2002 meeting. (Pl.'s Stmt. ¶¶ 40.e, 40.g; see Defs.' Stmt. ¶¶ 40-41.) When asked who the women who had complained were, however, Dhindhwal refused to provide their names. (Pl.'s Stmt. ¶ 40.f.) During the phone call, the plaintiff told Lombardo that he "had no intention of leaving Chase[,]. . . . wanted it documented [that Dhindhwal was] bugging [him], he is harassing [him]," and would drop his complaint of harassment if Dhindhwal would stop trying to remove him from Chase. (Pl.'s Dep. at 135-36.) Dhindhwal then allegedly apologized and said that he would let the matter drop and would not "pursue" the plaintiff. (Pl.'s Dep. at 136; Defs.' Stmt. ¶ 42; Pl.'s Stmt. ¶ 42.)

  On November 6, 2002, the plaintiff was removed from his position as Senior Project Manager and was assigned to the EDS project as an individual contributor. (Defs.' Stmt. ¶¶ 43, 46; Pl.'s Stmt. ¶¶ 43, 46.) The plaintiff was allegedly taken out of his role as Project Manager because of business complaints, although the plaintiff claims that this excuse was merely pretextual. (Defs.' Stmt. ¶¶ 44-45; Pl.'s Stmt. ¶¶ 44, 44.a, 44.c, 44.f, 44.h, 44.i; see Pl.'s Stmt. ¶ 43 (noting that the plaintiff had, prior to his reassignment, been commended for his work as a Senior Project Manager and his ability to lead projects for Chase's "business clients").) The plaintiff's new position was allegedly a step down from his previous work: he managed a project worth $500,000 instead of projects totaling around $20,000,000 and was no longer in charge of twenty people. Moreover, completing the new position's tasks allegedly required only a couple of hours of the plaintiff's time and was not much of a challenge. (Pl.'s Stmt. ¶¶ 44.b, 45.e.) After his reassignment, the plaintiff applied for around thirty positions at Chase through HR. (Defs.' Stmt. ¶ 48; Pl.'s Stmt. ¶ 48.) The plaintiff was rejected for all of the positions and believed that he was being "blackballed." (Pl.'s Stmt. ¶ 49.) However, in his deposition testimony, he said that he did not know why his applications were being rejected, had no knowledge of the mechanism involved for the rejections, and had no idea whether his applications were rejected by people in contact with Dhindhwal, Rupp, or Radkiewicz. (Defs.' Stmt. ¶¶ 49-50; Pl.'s Dep. at 51, 143, 146, 148-49.)

  The EDS project concluded in late January 2003, and on February 9, 2003, the plaintiff was again reassigned, this time to work as an Enterprise Architect for Kuldeep Tuteja, a Chase President in Application Integration. (Defs.' Stmt. ¶ 51; Pl.'s Stmt. ¶ 51.) Around the same time, however, Tuteja and his group were reassigned to Application Development, reporting to Dhindhwal; because Dhindhwal allegedly believed that the plaintiff was not qualified for his new position as Enterprise Architect, the plaintiff was prevented from following Tuteja to Application Development. (Defs.' Stmt. ¶¶ 52-53; Pl.'s Stmt. ¶¶ 52-53, 54.a, 54.a.2, 54.c.) The plaintiff alleges that Dhindhwal told Tuteja to drop the plaintiff from the group because the plaintiff had reported Dhindhwal's false accusation of sexual harassment to HR in August 2002. (Pl.'s Stmt. ¶ 54.h.) After he was denied the position in Tuteja's group, Matlosz believed that he was in limbo and was confused as to whom he was supposed to report to. (Defs.' Stmt. ¶ 54; Pl.'s Stmt. ¶¶ 54, 54.j.) The plaintiff also testified at his deposition that after his first reassignment in November 2002, he generally felt isolated and intimidated. (Pl.'s Dep. at 166-67.) As a result of his isolation and confusion, the plaintiff sent Karen Van Breda Kolff and David Bess, both working in HR, an e-mail on February 26, 2003 (the "February 2003 complaint"), detailing his employment situation and his suspicion that he was being mistreated because of "the original harassment charges I brought forward when [Dhindhwal] vocalized I was going to be a problem and have a sexual harassment suit brought against me." (E-mail, dated Feb. 26, 2003 ("Feb. 26 E-mail"), attached as Ex. K, ¶ 3, to Defs.' Stmt.; Defs.' Stmt. ¶ 58; Pl.'s Stmt. ¶ 58.) Moreover, in the e-mail, the plaintiff noted that he "was concerned because I am a white male, over 40" and that "others in my category . . . are experiencing similar [poor performer rankings in employee evaluations.]" (Id.)

  On March 6, 2003, after failing to hear a response to his February 2003 complaint, the plaintiff sent another e-mail complaint, this time to Carl Haughton, head of HR for Chase (the "March 2003 complaint"). (Defs.' Stmt. ¶ 60; Pl.'s Stmt. ¶ 60.) This Complaint included an attachment of the February 2003 complaint and explained that the plaintiff felt he had been "harassed by Bob Rupp and Ram Dhindhwal" and "I believe this harassment has lead [sic] to a potential case of age discrimination. . . ." (E-mail, dated Mar. 6, 2003 ("Mar. 6 E-mail"), attached as Ex. K, ¶ 18, to Defs.' Stmt.) In the same time period as the plaintiff's two 2003 complaints, e-mails and a memorandum were being sent between Van Breda Kolff and Radkiewicz about the plaintiff's 2002 Annual Performance Evaluation. (Defs.' Stmt. ¶¶ 55-57; Pl.'s Stmt. ¶¶ 55-57.) There is some disagreement as to when the version of the memorandum and report that were critical of the plaintiff's performance were prepared, and the plaintiff argues that the evaluation was a pretextual instrument calculated to facilitate his termination. (Defs.' Stmt. ¶¶ 55-57; Pl.'s Stmt. ¶¶ 57, 57.f.)

  On March 6, 2003, a few hours before the plaintiff wrote the March 2003 complaint to Haughton, Van Breda Kolff sent a proposed reduction in force for the plaintiff to Greg Trojanowski, a Vice President with Corporate Employee Relations for Chase, recommending the elimination of the plaintiff's position "[d]ue to his poor communication skills" and the fact that clients did not want to deal with him. (Defs.' Stmt. ¶¶ 59-60.) The plaintiff alleges that Van Breda Kolff's reasoning was pretextual, that his position was not eliminated but that he was discharged in retaliation for his first complaint to HR about Dhindhwal's false accusations against him. ...

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