United States District Court, S.D. New York
September 3, 2005.
CHESTER MATLOSZ, Plaintiff,
J.P. MORGAN CHASE and RAM DHINDWHAL, Defendants.
The opinion of the court was delivered by: JOHN KOELTL, District Judge
OPINION & ORDER
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
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,
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. (Pl.'s Stmt. ¶¶ 59.a, 61.) On March 14,
2003, the plaintiff was informed by Van Breda Kolff that his position was being eliminated. (Defs.' Stmt. ¶ 62; Pl.'s Stmt. ¶
The plaintiff testified at his deposition that he was subject
to the Chase Employment At Will Policy Guide (the "Guide") and
did not have a written contract of employment. (Pl.'s Dep. at
111-12.) The Guide states that:
JPMorgan Chase reserves the right, whether in an
individual situation or more generally, to interpret,
supplement, vary, change, suspend or eliminates any
of these policies or programs and to institute new
ones at any time, with or without notice. JPMorgan
Chase, like other employers, hires and employs under
terms known as employment at will. Employment at
will means that JPMorgan Chase may alter the terms of
your employment and either you or JPMorgan Chase may
terminate your employment at any time and for any
reason or for no reason, with or without notice. No
officer or other employee has authority to alter the
employment at will relationship, orally or in
writing. This Guide does not constitute or create an
employment contract, establish rights, privileges or
benefits of employment, or establish any job
guarantee or term of employment.
(Employment At Will Policy Guide, dated Jan. 1, 2001 ("Guide"),
attached as Ex. E-9 to Defs.' Stmt.) (emphasis in original).
However, the plaintiff alleges that his at will status was
modified by the Employee Relations Manual (the "Manual"). (Pl.'s
Stmt. ¶ 10.) The Manual describes a policy whereby individuals
will not be discriminated against or harassed because of race,
color, sex, age, or other protected status under any law. (Manual at 2, attached as Ex.
8-44 to Seltzer Aff.) The Manual also provides that supervisors
are required to report harassment and employees who complain
about harassment will not be subjected to coercion, intimidation,
or retaliation. (Id. at 5-6.)
In his First Claim, the plaintiff alleges that, because he
complained to HR in August 2002 and then again in February
2003,*fn3 he was terminated from his employment at Chase
and, thus, seeks relief under Title VII. Title VII prevents
employers from retaliating or discriminating against an employee
because the employee opposed an unlawful employment practice.
42 U.S.C. § 2000e-3(a). To establish a prima facie case of
retaliation, the plaintiff must demonstrate that (1) he was
engaged in a protected activity; (2) the defendant was aware of
this activity; (3) the defendant took adverse action against the
plaintiff; and (4) a causal connection exists between the
protected activity and the adverse action, that is, a retaliatory
motive played a part in the adverse employment action. See
Hill v. Citibank Corp., 312 F. Supp. 2d 464, 477-78 (S.D.N.Y.
2004). Under the familiar burden-shifting analysis of McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973), once the plaintiff
makes such a showing, the burden of production shifts to the
defendant to put forth legitimate nondiscriminatory or
nonretaliatory reasons for its actions, at which point the
plaintiff has the opportunity to demonstrate that the defendant's
explanations are false and that the retaliation and/or
discrimination was a motivating factor in the adverse employment
action. See, e.g., Van Zant v. KLM Royal Dutch Airlines,
80 F.3d 708, 714 (2d Cir. 1996). To survive a motion for summary
judgment, the plaintiff is "obliged to produce not simply some
evidence, but sufficient evidence to support a rational finding
that the legitimate, nondiscriminatory reasons proffered by the
employer were false, and that more likely than not
[discrimination] was the real reason for the discharge." Id.
(internal citation and quotation marks omitted) (alteration in
The ultimate burden of persuading the trier of fact that the
defendant intentionally discriminated or retaliated against the
plaintiff remains at all times with the plaintiff. See Tex.
Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981);
see also Reeves v. Sanderson Plumbing Prods., Inc.,
530 U.S. 133, 143 (2000); Fisher v. Vassar Coll., 114 F.3d 1332,
1336 (2d Cir. 1997). The Court of Appeals for the Second Circuit has instructed that in determining
whether the plaintiff has met this burden, a court is to use a
"case by case" approach that evaluates "the strength of the
plaintiff's prima facie case, the probative value of the proof
that the employer's explanation is false, and any other evidence
that supports [or undermines] the employer's case." James v.
N.Y. Racing Ass'n, 233 F.3d 149, 156 (2d Cir. 2000) (alteration
in original) (quoting Reeves, 530 U.S. at 148-49); see also
Schnabel v. Abramson, 232 F.3d 83 (2d Cir. 2000). Although
summary judgment must be granted with caution in Title VII
actions "where intent is genuinely in issue, . . . summary
judgment remains available to reject discrimination claims in
cases lacking genuine issues of material fact." Chambers v. TRM
Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994); see also
Hill, 312 F. Supp. 2dat 477-78.
The defendants move for summary judgment and argue that the
plaintiff's complaint following the August 2002 meeting never
alleged that the plaintiff was sexually harassed or discriminated
against because of a protected characteristic. The defendants
argue that the August 2002 complaint was therefore not opposition
to an unlawful employment practice. Therefore, the defendants argue, any actions taken against the
plaintiff because of that complaint were not retaliation for a
The record indicates that the August 2002 complaint did not
allege discrimination because of age, sex, race, or any other
protected characteristic, and the plaintiff testified as much in
his deposition.*fn4 (Pl.'s Dep. at 126-29.) The plaintiff
presents no evidence that Dhindhwal made his allegedly false
charges at the August 26, 2002, meeting because of the
plaintiff's age, sex, race, or any other protected
characteristic, and there is no basis for concluding that the
plaintiff's complaint to HR constituted such an allegation.
Rather, any harassment of the plaintiff by Dhindhwal appears to
have been the result of personal friction between Dhindhwal and
the plaintiff resulting in part from the plaintiff's criticism of
Dhindhwal at the April 2001 meeting.
Relying on dicta from McDonnell v. Cisneros, 84 F.3d 256,
259-60 (7th Cir. 1996), the plaintiff argues that Dhindhwal's
allegations that women had complained to Dhindhwal of sexual
harassment by the plaintiff constitute sexual discrimination. In McDonnell, the Court of Appeals for
the Seventh Circuit stated in dicta that:
a male supervisor for whom life is made unbearable by
baseless accusations that he is extorting sexual
favors from his subordinates could also be thought a
victim of sexual harassment. Such accusations would
be based on the fact that he was a man that is, on
the difference in sex between him and the persons he
was accused of abusing.
Id. at 260. The plaintiff claims that by complaining to
Lombardo about Dhindhwal's comments at the August meeting, the
plaintiff was complaining of sexual harassment against him. The
facts in this case, however, do not rise to the level of the
scenario in McDonnell. Dhindhwal made no allegations during the
August 2002 meeting that the plaintiff was "extorting sexual
favors" from his subordinates, but only said that the plaintiff
had potential sexual harassment charges pending against him. More
importantly, the plaintiff did not allege in his August 2002
complaint that he was treated differently from any other employee
because of his sex indeed, he actually testified at his
deposition that he was not discriminated against because of sex.
(Pl.'s Dep. at 129.)
The accusation by the plaintiff at the August 2002 meeting is
more akin to the facts in Balazs v. Liebenthal, 32 F.3d 151
(4th Cir. 1994). In Balazs, where an employee was demoted after
being falsely accused of sexual harassment, the Court of Appeals for the Fourth Circuit held that "[a]n
allegation that he was falsely accused of conduct which, if true,
might have given rise to a claim of employment discrimination
based on sex by someone else in no way states a cause of action
that plaintiff himself was a victim of discrimination based on
his sex." Balazs, 32 F.3d at 155; see Kelly v. Market USA,
No. 01-4169-SAC, 2002 WL 1334830, at *1 (D. Kan. May 14, 2002)
(stating that false accusations of sexual harassment do not
constitute a violation of Title VII); Kipnis v. Baram,
949 F. Supp. 618, 623 (N.D. Ill. 1996). Indeed, the court in Balazs
found that "nowhere in any of the several charges filed by [the]
plaintiff . . . is it alleged that he was treated differently
from any other employee, male or female, because of his sex."
Balazs, 32 F.3d at 155. The record in this case supports the
same conclusion. Because, in August 2002, the plaintiff only
complained of harassment generally and failed to complain of
discriminatory treatment based on a protected characteristic, the
August 2002 complaint is not protected activity under Title VII
and cannot give rise to a claim of retaliatory discharge.
Accordingly, the plaintiff fails to satisfy the elements of a
prima-facie case of retaliation based on the August 2002
The plaintiff also argues that he was discharged in retaliation
for his February 2003 complaint to HR.*fn5 In his February
2003 e-mail, the plaintiff stated that because of his sex and age
"male, over 40" he was concerned that he was ranked as a poor
performer even though he had allegedly successfully achieved the
objectives required of him. (Feb. 26 E-mail, ¶ 3.) He also
expressed concern that "others in [his] category [were]
experiencing similar rankings," implying that he was being
discriminated against based on his sex and age. (Id.) Such
statements may be found by a reasonable jury to be informal
complaints of discrimination based on age and gender. See
Bampoe v. Coach Stores, Inc., 93 F. Supp. 2d360, 372 (S.D.N.Y.
2000) (noting that, under Title VII, informal complaints, such as
complaints to management, constitute protected activities).
Indeed, the defendants conceded that the February 2003 e-mail is
a protected activity, (Tr., dated June 30, 2005, at 13.), and
only disputed the causal connection between the February 2003
e-mail and the plaintiff's termination.
Because the plaintiff's February 26, 2003 e-mail to HR is a
protected activity, the first prong of the prima facie test is satisfied. Moreover, because, at most, three weeks passed
between the plaintiff's February 26, 2003 e-mail and the
plaintiff's discharge, there is enough evidence of a causal
connection between the protected activity and the discharge to
survive a motion for summary judgment. See Gorman-Bakos v.
Cornell Coop. Extension of Schenectady County, 252 F.3d 545,
554-55 (2d Cir. 2001) (surveying cases); see also Clark
County Sch. Dist. v. Breeden, 532 U.S. 268, 273 (2001) (per
curiam) (requiring "very close" proximity in time (internal
citation and quotation marks omitted)).
There are issues of fact as to whether Van Breda Kolff's
proposed reduction in force was the reason for the plaintiff's
discharge and whether the plaintiff's complaints caused, at least
in part, his termination. The plaintiff has presented enough
evidence for a jury to find that the plaintiff was terminated in
retaliation under Title VII, and that those involved in the
termination were engaged in an effort to develop a pretextual
basis for the discharge. Accordingly, the defendants' motion for
summary judgment on the plaintiff's Title VII retaliation claim
(Claim I) must be denied. IV.
The plaintiff's Second Claim is entitled "Retaliation and
Hostile Work Environment Harassment Claim in Violation of Title
VII." The plaintiff argues that the unfounded August 2002 charge
by Dhindhwal was a "form of sexual harassment." (Compl. ¶ 51.)
The plaintiff also argues that, after he complained about that
charge, he was subjected to a "hostile work environment." (Compl.
To the extent that the plaintiff is complaining about
retaliation for the charge he made against Dhindhwal in August
2002, for the reasons explained above, that was not protected
activity and thus, any adverse actions taken against because of
that complaint were not actionable.
In any event, the plaintiff has failed to show that he was
subjected to any hostile work environment. A hostile work
environment can constitute an adverse employment action for the
purposes of establishing a prima facie case of employment
discrimination under Title VII. See Nat'l R.R. Passenger Corp.
v. Morgan, 536 U.S. 101, 115-16 (2002); Richardson v. N.Y.
State Dep't of Corr. Servs., 180 F.3d 426, 446 (2d Cir. 1999).
To establish a prima facie case of hostile work environment, a
plaintiff must show: (1) discriminatory harassment that was
"sufficiently severe or pervasive to alter the conditions of the
victim's employment and create an abusive working environment," and (2) a specific
basis exists for imputing the objectionable conduct to the
employer. Perry v. Ethan Allen, Inc., 115 F.3d 143, 149 (2d
Cir. 1997). The first element of the prima facie case must be
established by a showing that "the workplace was so severely
permeated with discriminatory intimidation, ridicule, and insult
that the terms and conditions of [the plaintiff's] employment
were thereby altered." Alfano v. Costello, 294 F.3d 365, 373
(2d Cir. 2002); Fairbrother v. Morrison, 412 F.3d 39, 48-49 (2d
Cir. 2005); Garvin v. Potter, 367 F. Supp. 2d548, 566 (S.D.N.Y.
2005); Singh, 2005 WL 1354038, at *11.
The plaintiff has made no showing that he was subjected to
discrimination, intimidation, ridicule, and insults. Moreover,
the plaintiff has failed to show that any of the conditions of
employment about which he complains such as his job transfer
was the result of discrimination based on his gender or age.
Therefore summary judgment is granted dismissing the plaintiff's
second cause of action.
In his Third Claim, the plaintiff alleges that he was sexually
harassed and discriminated against when Dhindhwal made allegedly false accusations that female employees had
potential sexual harassment complaints against the plaintiff.
Dhindhwal's charge against the plaintiff does not establish an
independent basis for liability. For the reasons already
explained, there is no evidence that the charge was made against
the plaintiff because of the plaintiff's sex.
Moreover, the existence of that single incident did not rise to
the level necessary to constitute a hostile work environment.
"[A] plaintiff alleging a hostile work environment must
demonstrate either that a single incident was extraordinary
severe, or that a series of incidents were sufficiently
continuous and concerted to have altered the conditions of [the
plaintiff's] working environment. To decide whether the threshold
has been reached, courts examine the case-specific circumstances
in the their totality and evaluate the severity, frequency, and
degree of the abuse." Alfano, 294 F.3d at 374 (internal
citation and quotation marks omitted). In this case, the single
incident of an allegedly unfounded charge was addressed promptly
by senior management and ended in an apology to the plaintiff. It
cannot be found that this incident was so severe as to constitute
a hostile work environment. Summary judgment is granted
dismissing the plaintiff's third cause of action. VI.
In the Seventh Claim, the plaintiff asserts claims analogous to
his Title VII claims under LAD, N.J.S.A. 10:5-1 et seq. The legal
standards to establish a retaliatory discharge, harassment,
discrimination, or hostile work environment claim under LAD are
substantially the same as those under Title VII. See, e.g.,
Dixon v. Rutgers, The State Univ. of N.J., 541 A.2d 1046,
1051-52 (N.J. 1988); Clowes v. Terminix Int'l, Inc.,
538 A.2d 794, 805 (N.J. 1988); Turner v. Wong, 832 A.2d 340, 354-55
(N.J. Super. Ct. App. Div. 2003); Donofry v. Autotote Sys.,
795 A.2d 260, 269 (N.J. Super. Ct. App. Div. 2001); Giammario v.
Trenton Bd. Of Educ., 497 A.2d 199, 202 (N.J. Super. Ct. App.
Div. 1985); cf. Kluczyk v. Tropicana Prods., Inc.,
847 A.2d 23, 30-31 (N.J. Super. Ct. App. Div. 2004). Accordingly, and as
explained above with regard to the Title VII claims, the
defendants' motion for summary judgment is granted on the
plaintiff's LAD claims of sexual harassment, discrimination, and
hostile work environment, but the portion of the plaintiff's LAD
claim of retaliatory discharge based on the plaintiff's February
2003 complaint remains.
Moreover, the defendants' motion for summary judgment
dismissing those parts of the plaintiff's Seventh Claim based on
the Whitman Executive Order No. 106 is also granted. The plaintiff failed to reply to the defendants' assertion that the
Whitman Order only applies to "State departments, commissions,
State colleges, and authorities." (Defs.' Mem. of Law in Supp. of
Their Mot. for Summ. J., at 2 n. 4.) The claim is therefore
abandoned. Moreover, the defendants' assertion is correct. See
N.J. Admin. Code Exec. Order No. 106 (1999); N.J. Model
Procedures for Internal Complaints Alleging Discrimination,
Harassment or Hostile Environments in the Workplace, available
at http://www.state.nj.us/personnel/EEO/POP-UPS/EEO internal
complaint.htm (referring to model procedures for New Jersey
state departments, commissions, state colleges, and authorities).
Accordingly, summary judgment for the defendants is granted on
all of the plaintiff's claims under Whitman Executive Order No.
In Counts Eight and Nine, the plaintiff asserts claims of
slander per se and slander arising out of Dhindhwal's comments in
August 2002. The defendants counter that Dhindhwal's alleged
statements are protected by qualified privilege and that the statements do not fall under the doctrine
of slander per se.*fn6
In order to prove slander, a plaintiff must establish that
Dhindhwal made a defamatory statement of fact concerning the
plaintiff, which was false, and was communicated to a person or
persons other than the plaintiff. Govito v. W. Jersey Health
Sys., Inc., 753 A.2d 716, 722 (N.J. Super. Ct. App. Div. 2000).
A defamatory statement is one that tends to harm the reputation
of the plaintiff or to lower the plaintiff in the estimation of
the community or deter third persons from associating or dealing
with him. Id. Slander per se "is limited to defamatory
statements which impute to another person (1) a criminal offense;
(2) a loathsome disease; (3) conduct, characteristics or a
condition that is incompatible with [the plaintiff's] business,
trade or office; or (4) serious sexual misconduct." Biondi v.
Nassimos, 692 A.2d 103, 106 (N.J. Super. Ct. App. Div. 1997).
The defendants argue that Dhindhwal's statements are protected
by the doctrine of qualified privilege:
[A] communication made bona fide upon any
subject-matter in which the party communicating has
an interest, or in reference to which he has a duty,
is privileged if made to a person having a
corresponding interest or duty, although it contains criminatory matter which,
without this privilege, would be slanderous and
Bainhauer v. Manoukian, 520 A.2d 1154
, 1169 (N.J. Super. Ct.
App. Div. 1987) (quoting Coleman v. Newark Morning Ledger Co.,
149 A.2d 193
(N.J. 1959) (internal citation and quotation marks
omitted)). However, "the privilege is lost if the speaker knows
the matter is false or acts in reckless disregard of its
falsity." Bainhauer, 520 A.2d at 1172. The privilege is also
lost if the speaker "does not act for the purpose of protecting
the interest for the protection of which the privilege is given."
Id. at 1172-73.
In this case, it is a jury question whether Dhindhwal abused
the privilege. There is evidence from the record that Dhindhwal
recklessly disregarded the truth when he made the allegedly
slanderous statements about the plaintiff. Dhindhwal testified
during his deposition that, at the August 2002 meeting, he said
that "somebody from Matlosz's group has come to me and said that
the kind of comments Chet makes about some female colleagues
could put us into trouble. . . ." (Dhindhwal Dep. at 119.)
However, Radkiewicz testified at his deposition that Dhindhwal
said that two women came to him and complained about the
plaintiff. (Radkiewicz Dep. at 63.) Dhindhwal also testified at
his deposition that he did not ask for details from the alleged
informant(s). (Dhindhwal Dep. at 123, 125.) There are issues of fact as to
whether Dhindhwal's statements about the plaintiff were knowingly
or recklessly false. Moreover, there are issues of fact whether
the statements were made for the employer's protection or rather
were made out of a bad faith desire to harm the plaintiff.
Dhindhwal's statements would qualify under the third category
of slander per se: conduct, characteristics, or a condition that
is incompatible with the plaintiff's business, trade, or
office.*fn7 Dhindhwal accused the plaintiff of having
potential sexual harassment claims against him. Sexual harassment
of co-workers is conduct incompatible with the plaintiff's job
and is a wrongdoing on the job. Cf. Ricciardi v. Weber,
795 A.2d 914, 928 (N.J. Sup. Ct. App. Div. 2002) (noting that where
the plaintiff, an employer, was accused of harassing an employee,
"[t]he statements affected [the employer] in the conduct of their
trade because it went to the essence of their character as
employers."). Accordingly, the defendants' motion for summary judgment
dismissing the plaintiff's claims of slander per se and slander
The plaintiff also argues that the Manual altered his at will
employment status and established an employment agreement, and
that Chase breached this agreement.
In Woolley v. Hoffman-LaRoche, Inc., 561 A.2d 1130 (N.J.
1985), the New Jersey Supreme Court held that an employee manual
may alter the employee's at will employment status. See also
Schwartz v. Leasametric, Inc., 539 A.2d 744, 749-50 (N.J.
Super. Ct. App. Div. 1988). However, the court noted that:
if the employer, for whatever reason, does not want
the manual to be capable of being construed by the
court as a binding contract, there are simple ways to
attain that goal. All that need be done is the
inclusion in a very prominent position of an
appropriate statement that there is no promise of any
kind by the employer contained in the manual; that
regardless of what the manual says or provides, the
employer promises nothing and remains free to change
wages and all other working conditions without having
to consult anyone and without anyone's agreement; and
that the employer continues to have the absolute
power to fire anyone with or without good cause.
Woolley, 99 N.J. at 309; see also Ware v. Prudential Ins.
Co., 531 A.2d 757
, 760-61 (N.J. Super. Ct. App. Div. 1987)
(applying Woolley and holding that a policy manual did not
create enforceable rights where, among other things, the employee has entered into an individual employment contract that
was terminable at will, the manual was only addressed to a small
subset of all employees, and the manual indicated that its intent
was only to delineate management responsibilities).
The plaintiff argues that, as an employee, he received a
hardcopy of the Manual, and not the Guide, and that the Manual
creates legally enforceable employment rights that protect
employees from retaliation because of harassment, discrimination,
or reporting harassment, discrimination, or retaliation. (Tr.,
dated June 30, 2005, at 52.) The plaintiff claims that his
complaints from 2002 and 2003 fall under these enforceable rights
and are protected activities, and that Chase failed to enforce
this contract and follow its own policies when it discharged him.
The defendants argue that the Manual does not establish a
contract because, if construed "in accordance with the reasonable
expectations of the employees," it did not create legally
enforceable employment rights. Woolley, 491 A.2d at 1264. The
defendants rely on the Guide which explicitly notes that
"JPMorgan Chase may terminate [employees'] employment at anytime
and for any reason or for no reason. . . . This Guide does not
constitute or create an employment contract, establish rights,
privileges or benefits of employment, or establish any job guarantee or term of
Because it is an issue of fact whether the Guide was given to
the plaintiff when he was hired and whether the disclaimer in the
Guide applies to the Manual, summary judgment cannot be granted.
First, the Guide states that Chase "reserves the right . . . to
supplement, vary, change, suspend or eliminate any of these
policies. . . ." (Id.) It is a question of fact whether,
through the Manual, Chase altered the at will employment status
of the plaintiff and granted him some limited employment rights.
Second, the Guide's clause that the Guide "does not constitute or
create an employment contract, establish rights, privileges or
benefits of employment" does not necessarily apply to the Manual
because it is unclear from the evidence provided that the Manual
is part of the Guide. (Guide; see Manual.) Third, it is unclear
whether the plaintiff was ever given the Guide and, if he was,
whether it was reasonable for the plaintiff to understand how to
correctly interpret the Manual and Guide together. Accordingly,
there are unresolved issues of fact as to whether the Manual
creates some enforceable employment rights under Woolley and,
if so, what those rights are. Accordingly, the defendants' motion for summary judgment on the
breach of contract claim (Claim XI) is denied.
For the reasons explained above, the defendant's motion for
summary judgment is granted for the following claims: (1) part
of Claim I for retaliatory discharge based on the plaintiff's
August 2002 complaints; (2) Claim II for hostile work environment
under Title VII; (3) Claim III for sexual discrimination and
harassment under Title VII; (4) parts of Claim VII for
discrimination and hostile work environment under LAD; (5) parts
of Claim VII under Whitman Executive Order No. 106.
Claims IV, V, VI and X, have been abandoned by the plaintiff,
and are hereby dismissed.
The plaintiff's following claims remain: (1) Claim I for
retaliatory discharge under Title VII based on the plaintiff's
February 2003 complaint; (2) part of Claim VII for retaliatory
discharge under the LAD; (3) Claim VIII for slander per se; (4)
Claim IX for slander; and (5) Claim XI for breach of contract.
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