REAP v. CONTINENTAL CASUALTY COMPANY

Full title: JUDITH B. REAP, Plaintiff, v. CONTINENTAL CASUALTY COMPANY d/b/a CNA…

Court: United States District Court, D. New Jersey

Date published: Jun 28, 2002

CIVIL ACTION NO. 99-1239 (MLC) (D.N.J. Jun. 28, 2002)

Opinion

CIVIL ACTION NO. 99-1239 (MLC)

June 28, 2002

MEMORANDUM ORDER

MARY L. COOPER, United States District Judge

This matter comes before the Court on the motion of defendant Continental Casualty Company ("Continental") for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff Judith B. Reap ("Reap"), a former employee of Continental, alleges that she was denied two promotions because of her age and gender, and that after she filed a charge with the Equal Employment Opportunity Commission to protest her nonpromotions, she was fired in retaliation. Continental currently moves for summary judgment on all remaining claims. For the reasons expressed in this Memorandum and Order, the Court will grant Continental's motion.

BACKGROUND

In this part of the Memorandum and Order, the Court describes the factual background and procedural history of the present matter. In deriving that factual background, the Court relies principally on the undisputed material facts that the parties submit to the Court. (See Generally Def.'s Statement of Undisputed Material Facts in Supp. of Mot. for Summ. J. ("Def. Undisp. Facts"); Pl.'s Resp. to Def.'s Statement of Undisputed Facts and Additional Undisputed Facts in Opp'n to Mot. for Summ. J. ("Pl. Undisp. Facts").)

I. Reap's Employment in Continental's Environmental Claims Division

Plaintiff Judith Reap ("Reap") began working for defendant Continental Casualty Company ("Continental") on June 29, 1992, as a Director in the Environmental Claims Division ("ECD") in Cranbury, New Jersey. (Dep. of Judith B. Reap dated 9-8-99 ("Reap Dep.") at 36-37.) The ECD was a specialized claims area with three general responsibilities: (1) hazardous waste claims handling (also called pollution claims and environmental claims); (2) toxic tort claims, which encompassed a variety of claims with long exposure periods, such as asbestos, lead paint, silica, hearing loss, and repetitive stress claims; and (3) coverage litigation arising out of hazardous waste and toxic tort claims. (Aff. of Kevin Kelly dated 11-6-01 ("Kelly Aff.") ¶ 6; Aff. of Frederick Jahn dated 11-15-01 ("Jahn Aff.") ¶ 3.) Reap was hired to manage asbestos claims against Bendix, a Continental policyholder, and Reap's duties expanded to other asbestos and toxic tort claims over time. (Reap Dep. at 39-41; Kelly Aff. 19.) Reap initially reported to Kevin Kelly ("Kelly"), Vice President of the ECD, who in turn reported to James Flood ("Flood"), Vice President of Corporate Claims. (Kelly Aff. ¶¶ 2, 18.)

In May 1995, CNA Financial Corporation acquired Continental, and all employees of Continental became employees of the Continental Casualty Company, a subsidiary of CNA Financial Corporation. (Aff. of James Flood dated 11-13-01 ("Flood Aff.") ¶ 4.) As a result of the merger, the environmental claims operations of Continental and CNA were combined into a single Environmental Claims Division with three regional claims centers located in Cranbury, Chicago, and San Francisco. (Id. ¶ 6.) Under the merger plan, an Assistant Vice President ("AVP") would lead each regional claims center, and the AVP would report to a Vice President of Environmental Claims ("VP") in Chicago. (Id.) The VP in turn would report to Flood, who had been named Senior Vice President Corporate Claims of the merged company. (Id.)

II. The Selection of Rick Jahn as AVP of the Cranbury ECD

In early September 1995, Kelly resigned as AVP of the Cranbury ECD (his post-merger title). (Kelly Aff. ¶¶ 4-5.) Rick Jahn ("Jahn"), not Reap, was named to fill the AVP position effective September 15, 1995. Continental hired Jahn in 1986, and he held a number of positions within the ECD, each with increasing levels of responsibility, including Senior Adjuster, Senior Environmental Claims Analyst, Senior Claims Supervisor, Manager, and finally, Director of the Harbor and Hazardous Waste Unit. (Jahn Aff. ¶¶ 3-10.) According to Kelly and Flood, Kelly recommended Jahn based on his broad claims experience, excellent skills as a manager, and overall exemplary performance during his tenure of nearly nine years in the Cranbury ECD. (Flood Aff. ¶ 10; Kelly Aff. ¶¶ 12-14.) According to Kelly and Jahn, Kelly has worked with Jahn in the ECD for nearly eight years and was personally familiar with his performance and capabilities. (Kelly Aff. ¶ 11; Jahn Aff. ¶ 21.) Flood ultimately selected Jahn for the Cranbury AVP position because, according to Flood and Kelly, Jahn had a broad-based environmental claims background and a fine reputation as an effective and well-respected manager. (Flood Aff. ¶¶ 11-14; Kelly Aff. ¶¶ 12-14.) Flood states that he did not believe Reap was qualified to hold the AVP position of the Cranbury ECD mainly because she did not, in Flood's view, have the range of environmental claims experience that he deemed necessary for the AVP position. (Flood Aff. ¶¶ 17-18.)

Shortly before promoting Jahn to the AVP position of the Cranbury ECD, Flood promoted Karen Campbell ("Campbell") to the position of AVP of the Chicago ECD, and Flood promoted Helen Merrick ("Merrick") to the position of AVP of the San Francisco ECD in August 1996. (Flood Aff. ¶ 15.) A law degree was not a requirement for the AVP position; Kelly, Jahn's predecessor, did not have a law degree (Kelly Aff. ¶ 22), and neither Campbell nor Merrick had a law degree (id. ¶ 19). Upon his promotion to AVP, Jahn promoted Leticia Diaz to his former position. (Jahn Aff. ¶ 17.)

III. The Selection of Thomas Aries as VP of the ECD

After promoting Jahn to the Cranbury AVP position, Flood and Judith Samuel ("Samuel"), Vice President of Human Resources, began a search for a candidato to fill the newly created position of VP of the ECD. (Flood Aff. ¶ 23; Aff. of Judith Samuel dated 11-9-01 ("Samuel Aff.") ¶ 4.) The person selected as VP would be based in Chicago and responsible for overseeing the three regional centers in Cranbury, Chicago, and San Francisco, with a total of 160 employees. (Flood Aff. ¶ 23; Samuel Aff. ¶ 4.) Given that responsibility, the main requirements for the position were prior experience managing a multi-location organization and environmental-claims experience. (Flood Aff. ¶¶ 24-25 Ex. 1: Position Profile, Vice President Environmental Claims ("Position Profile"); Samuel Aff. ¶ 11.)

According to Flood and Samuel, they determined that no internal candidates met all of the desired qualifications and engaged the services of Burkholder Associates ("Burkholder"), a management recruiting firm specializing in the property and casualty insurance industry, to identify qualified external candidates. (Flood Aff. ¶ 24; Samuel Aff. ¶ 6.) Only one external candidate, according to Flood and Samuel, had both the technical knowledge and extensive managerial experience they were seeking. (Flood Aff. ¶ 27; Samuel Aff. ¶ 8.) Flood and Samuel offered the position to Michael Stone, but he declined. (Flood Aff. ¶ 27; Samuel Aff. ¶ 8.)

Although Flood and Samuel did not identify Reap as an internal candidate for the VP position, she asked to be considered for it. (Flood Aff. ¶ 40.) At Reap's request, Flood met with Reap to discuss the position in January 1996. (Flood Aff. ¶ 43.)

Flood and Samuel offered the VP position to Thomas Aries ("Aries"), who was then serving as Assistant Vice President of Claims Litigation in the Staff Counsel area. (Flood Aff. ¶ 28; Samuel Aff. ¶ 10.) Aries started his employment with Continental in 1977 as a trial attorney in the Staff Counsel area. (Flood Aff. ¶ 29.) For many years, Aries had been responsible for managing seven Staff Counsel offices in the Western United States, including Hawaii, with a total of approximately 120 employees. (Id. ¶ 32.) After the merger, Aries had been responsible for approximately 155 employees in seven Staff Counsel offices in Eastern and Central United States. (Id. ¶ 31.) Aries, therefore, had prior experience managing multiple, geographically diverse locations. (Flood Aff. ¶ 30; Samuel Aff. ¶ 11.) The prior reviews of Aries praised his ability to successfully manage a multi-office, geographically dispersed organization. (Flood Aff. ¶ 33 Exs.: 3-5: Performance Reviews.) Additionally, the executive recruiting firm Continental hired to identify and interview qualified VP candidates observed that Aries was "indeed a strong contender" for the position and that "he has successfully managed large groups of professionals across broad geography." (Flood Aff. ¶ 35 Ex. 2: Candidate Profile; Tom Aries.) Aries, however, did not have prior experience managing an environmental claims office, and his prior positions did not involve making coverage determinations. (Flood Aff. ¶ 36; Samuel Aff. ¶ 11.) According to Flood and Samuel, they selected Aries based on his prior experience managing multiple, geographically dispersed locations. (Flood Aff ¶ 30; Samuel Aff. ¶ 11.) Flood states that he did not believe that Reap was qualified to hold the position of VP of the ECD mainly because she did not have experience, in Flood's view, managing multiple, geographically diverse locations, either at Continental or any prior employer. (Flood Aff. ¶¶ 39, 45.)

Aries accepted the offer and became VP of the ECD effective May 1996. (Flood Aff. ¶ 28.) At the time of Aries's promotion, Aries was 51 years old, and Reap was 54 years old. (Flood Aff. ¶ 38; Compl. ¶ 9.)

IV. Reap's First EEOC Charge

Reap did not complain to anyone in Continental management or Human Resources that she believed her nonpromotion to the AVP or VP positions was discriminatory. (Reap. Dep. at 218-19, 285.) In June 1996, however, Reap filed with the Equal Employment Opportunity Commission ("EEOC") a Charge of Discrimination, in which she alleged that she was not promoted to either position because of age and gender discrimination. (Aff. of Mark Diana in Supp. for Summ. J. ("Diana Aff."), Ex. 2: Charge of Discrimination.)

V. The Alleged Deterioration of Reap's Work Performance

Upon his promotion to AVP of the Cranbury ECD in September 1995, Jahn became Reap's direct supervisor, and thus became responsible for directing her work and evaluating her performance. (Jahn Aff. ¶ 22.) Initially, Jahn did not observe any major deficiencies in Reap's work performance. (Id. ¶ 23.)

According to Jahn, however, he became aware of various problems with Reap's work performance beginning in 1996. Jahn states that Reap missed deadlines he had set, ignored requests for information, and refused to follow directions he had given for proper procedures in the Cranbury ECD, and that he documented instances of poor performance. (Id. ¶¶ 23, 26-32.) In October 1997, Jahn gave Reap her annual Performance Review (id. ¶ 32), and Jahn prepared the Performance Review in consultation with Samuel (Samuel Aff. ¶ 17)

In December 1997, Reap submitted a written response to her Performance Review, in which she claimed that it had been issued in retaliation for her EEOC Charge 1 of June 1996. (Jahn Aff. ¶¶ 33-34.) According to Jahn, he continued to experience problems with Reap's work performance in 1998, including improper supervision, ignoring requests to follow procedures, and absences from the office without notice. (Id. ¶¶ 36-65.)

VI. Reap' s Performance Improvement Plan

Jahn spoke with Human Resources personnel Samuel and Catherine Johnson ("Johnson") in early 1998 regarding whether Reap should be placed on a Performance Improvement Plan ("PIP"), in accordance with Continental's Performance Improvement Program. (Jahn Aff. ¶ 66; Aff. of Catherine Johnson dated 11-9-01 ("Johnson Aff.") ¶ 6.) Under that Program, an employee is given assistance to reach and maintain a minimum level of performance. (Johnson Aff. ¶ 1.) An employee may be placed on a PIP whenever an employee's work or adherence to company rules is identified as being less than competent. (Id.) The employee is notified in writing of the performance deficiencies and of the actions required to reach a competent level of performance. (Id.) Failure to improve according to the terms of the PIP may result in the employee being placed on probation or may subject the employee to termination. (Id.) Jahn and Johnson prepared a PIP for Reap, and Jahn and Johnson met with Reap on April 16, 1998, to present and discuss the PIP. (Jahn Aff. ¶¶ 67-69; Johnson Aff. ¶¶ 9-11.) Jahn and Johnson informed Reap that her performance must improve within 30 days and that absent such improvement, she could be placed on probation and her future employment with Continental could be threatened. (Jahn Aff. ¶ 69; Johnson Aff. ¶ 11.) On April 20, 1998, Reap submitted a reply to the PIP, claiming that it was unmerited, lacked specific guidance on how she might improve, and was retaliatory. (Jahn Aff. ¶ 70; Johnson Aff. ¶ 12) In response, Jahn and Johnson again met with Reap. (Jahn Aff. ¶ 70; Johnson Aff. ¶ 12.)

VII. The Termination of Reap's Employment

On April 21, 1998, Reap distributed a memorandum to all staff members of her Unit. (Reap Dep. at 172-77; Jahn Aff. ¶ 72 Ex. 35: Memorandum from Pl. to Special Litigation Unit ("Mem.").) In that memorandum, Reap quotes from the PIP Jahn and Johnson had given Reap and from her response to it. (Mem.) Reap also quotes from an e-mail Jahn sent to Reap concerning employee rankings he had requested and from Reap's response to Jahn's e-mail, and the memorandum also includes a disclosure about the specific performance review of one former employee. (Id.) Specifically, Reap shared with the staff the following from her e-mail to Jahn: "I analyzed the job performance of each of my employees and prepared individualized reports which were accepted by you without question (except in the case of Linda Sikora, whose Performance Review you re-wrote to justify your decision to terminate her[.])" (Id.) Jahn and Johnson discussed that incident, and they met with Reap on May 18, 1998, to confirm that she had distributed the memorandum to the members of her Unit, which Reap admitted. (Jahn Aff. ¶ 76; Johnson Aff. ¶ 17.) That same day, Jahn and Johnson discussed the matter with Aries and Samuel, and all agreed that the termination of Reap's employment was warranted. (Jahn Aff. ¶ 76; Johnson Aff. ¶ 17; Samuel Aff. ¶¶ 24-26.) Later that afternoon, Jahn and Johnson met with Reap and terminated her employment. (Jahn Aff. ¶ 77; Johnson Aff. ¶ 18.) After Reap's termination, Jahn appointed Leticia Diaz as Reap's replacement as Director. (Jahn Aff. ¶ 78.)

VIII. Reap' s Second EEOC Charge

Reap filed a second charge of discrimination ("Charge 2") with the EEOC in May 1998, alleging that her termination was discriminatory and in retaliation for her filing Charge 1. (Diana Aff., Ex. 5: Charge of Discrimination.) On December 18, 1998, the EEOC dismissed Charge 1, determining that its investigation did not establish a violation of Title VII or the ADEA, and notified Reap of her right to file a lawsuit against Continental. (Diana Aff., Ex. 3: EEOC Letter, Ex. 4: EEOC Dismissal Notice of Rights.) On January 29, 1999, Reap requested that the EEOC issue her a right-to-sue letter on Charge 2 without making a determination of the charge on its merits. (Id. Ex. 7: Letter from Pl. to EEOC.) On February 3, 1999, the EEOC dismissed Charge 2 as requested and issued Reap a right-to-sue letter in connection with that charge.

IX. Filing of Complaint and Procedural History

Reap commenced the instant lawsuit on March 17, 1999, by filing a Class Action Complaint. Reap sought to represent a class "of all older female employees (over the age of 40) of the defendants [sic] who are now or have been employed by the defendant from 1992 to date. Upon information and belief, this class is comprised of approximately 5,000 persons employed at facilities throughout the United States." (Compl. ¶ 12.) Reap alleged that she, and older women as a class, have received differential treatment vis-a-vis younger male employees in connection with the following terms and conditions of employment: salaries, benefits, merit increases, work assignments, training, performance evaluations, promotions, discipline, lay-offs and/or terminations. (Id. ¶¶ 1, 13, 35, 38, 43.) Reap further alleged that she, and older women as a class, have been retaliated against for complaining about alleged acts of discrimination. (Id. ¶¶ 1, 13, 35, 38, 39, 41, 43, 45.)

In the Complaint, Reap seeks various forms of relief pursuant to five different theories: (1) Title VII of the Civil Rights Act of 1964 ("Title VII"), 42 U.S.C. § 2000e et sect., based on sex discrimination; (2) Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. § 621 et seq. (3) Anti-retaliation Provision of Title VII, 42 U.S.C. § 2000 (e)-3(a); (4) Anti-Retaliation Provision of the ADEA, 29 U.S.C. § 623 (d); and (5) Anti-Retahation Provision of the New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. § 10:5-12(d).¹

1 Reap voluntarily withdrew age and gender discrimination claims based on the NJLAD, N.J. Stat. Ann. § 10:5-1 et seq. (Mem. Order filed 10-20-99; Order filed 12-14-99.)

In a Memorandum and Order filed on October 20, 1999, the Court, inter alia, denied Continental's motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6). (Mem. Order filed 10-20-99.) As indicated, Reap initially sought to proceed on a class action basis, representing a putative class of several thousand current and former female employees. The Court denied Reap's motion for class certification in an Opinion dated March 21, 2001. Reap v. Cont'l Cas. Co., 199 F.R.D. 536 (D.N.J. 2001).

Continental now moves for summary judgment on Reap's remaining claims: failure to promote in violation of Title VII (Count I) and the ADEA (Count II); and retaliation in violation of Title VII (Count III), the ADEA (Count IV), and NJLAD (Count VI).

DISCUSSION

I. Legal Standards

A. Summary Judgment Standard

Federal Rule of Civil Procedure 56(c) provides that summary judgment is proper "if 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). The party moving for summary judgment bears the initial burden of showing that there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met that initial burden, the non-moving party must present evidence that establishes that a genuine issue of material fact exists, making it necessary to resolve the difference at trial. Id. at 324; Jersey Cent. Power Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). A non-moving party, rather than rely on mere allegations, must present actual evidence that creates a genuine issue of material fact. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

In deciding a motion for summary judgment, the Court must view the evidence in the light most favorable to the non-moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). The role of the judge at the summary judgment stage is not to weigh the evidence, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. "By its very terms, this standard provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact." Id. at 247-48. Material facts are only those facts that might affect the outcome of the action under governing law. Id. at 248; Boyd v. Ford Motor Co., 948 F.2d 283, 285 (6th Cir. 1991). "[T]here is no issue for trial unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50 (citations omitted)

B. Burden-Shifting Framework

The parties do not dispute that Reap's age and gender discrimination claims as well as her retaliation claims require application of the burden-shifting framework the Supreme Court articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and later clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The burden-shifting analysis proceeds in three stages.

First, plaintiff must prove by a preponderance of the evidence a prima facie case of discrimination. Hicks, 509 U.S. at 506. The plaintiff's task in establishing a prima facie case, however, is not intended to be onerous. See, e.g., Sempier v. Johnson Higgins, 45 F.3d 724, 728 (3d Cir.), cert. denied, 515 U.S. 1159 (1995).

If the plaintiff offers sufficient proof of the elements of a prima facie case, the court reaches step two. The burden of production, but not the burden of persuasion, shifts to the defendant, who must then offer evidence that is sufficient, if believed, to support a finding that it had a legitimate, nondiscriminatory reason for the employment action. Hicks, 509 U.S. at 506-07. If the defendant cannot satisfy that burden, judgment must be entered for the plaintiff. Id. at 509. If, on the other hand, the defendant does satisfy that burden, then the court reaches step three.

Under step three, the plaintiff must then demonstrate by a preponderance of the evidence that the employer's explanation is pretextual, which, if shown, meets the plaintiff's burden of persuasion. Id. at 507-08.

II. Claims for Failure to Promote Under Title VII and ADEA

Reap alleges that she was denied promotions to the positions of AVP and VP because of her gender in violation of Title VII and her age in violation of the ADEA. (Compl. Counts II III.)

To establish a prima facie case of age discrimination under the ADEA, a plaintiff must demonstrate that (1) she was over 40 at the time she applied for the position in question; (2) she was qualified for the position in question; (3) she was rejected despite her qualifications; and (4) the employer ultimately filled the position with a person sufficiently younger to permit an inference of age discrimination. Narin v. Lower Merion Sch. Dist., 206 F.3d 323, 331 (3d Cir. 2000); Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 330 (3d Cir. 1995); Sempier, 45 F.3d at 728. To establish a prima facie case of gender discrimination in a failure to promote case under Title VII, a plaintiff must demonstrate that (1) she belongs to a protected class; (2) she applied and was qualified for a job for which the employer was seeking applicants; (3) she was rejected despite her qualifications; and (4) after her rejection, the job remained open and the employer continued to seek applicants from persons of complainant's qualifications. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). The defendant is entitled to summary judgment if the plaintiff is unable to establish a genuine issue of material fact concerning at least one element of the prima facie case. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 501 (3d Cir. 1997).

A. AVP Position

Jahn was promoted to the position of AVP of the Cranbury ECD. Reap essentially contends that she should have received that promotion, and alleges that the denial of that promotion was unlawful on the basis of age and gender discrimination. Continental argues that Reap's claim that she was unlawfully denied promotion to the position of AVP of the Cranbury ECD fails because (1) she cannot establish the second prong of her prima facie case under either Title VII or ADEA, namely, that she was qualified for the AVP position, and (2) even if she could establish a prima facie case, Reap cannot establish that Continental's explanation for her nonpromotion is pretextual. (Def.'s Br. in Supp. of Mot. for Summ. J. ("Def. Br.") at 16-25.) The Court shall take each of those bases for summary judgment in turn.

1. Prima Facie Case: Whether Reap Was Qualified

Continental argues that it is entitled to summary judgment because Reap cannot establish that she was qualified for the position of AVP, and therefore that Reap cannot satisfy the second prong of a prima facie case under either Title VII or the ADEA. (Def. Br. at 16-19.) According to the testimony of Flood and Kelly, Flood selected Jahn (and Kelly recommended Jahn) for the AVP position in the Cranbury ECD because Jahn possessed a broad-based environmental claims background and a reputation as an effective and well-respected manager of people. (Flood Aff. ¶¶ 11-14; Kelly Aff. ¶¶ 12-14.) According to those same individuals, Reap, in contrast to Jahn, did not have Jahn's broad-based environmental claims background or sufficient management skills. (Flood Aff. ¶¶ 17-18; Kelly Aff. ¶¶ 19-21.) Continental maintains, therefore, that Reap cannot establish a prima facie case because she did not meet the objective qualifications for the AVP position — broad-based environmental claims experience. (Def. Br. at 17.)² In response, Reap contends that "the evidence clearly shows that [she] was equally well-respected as a manager, has equally broad claims handling experience and, in addition, had a law degree and much more experience in the industry than Jahn." (Pl.'s Br. in Opp'n to Def.'s Mot. for Summ. J. ("Pl. Br.") at 10.)³

2 Continental properly acknowledges that effective management skills is a subjective qualification and that Reap, therefore, need not show that she satisfied that qualification for purposes of her prima facie case (Def. Br. at 17). See Sempier, 45 F.3d at 729 (stating that only objective qualifications are considered at prima facie stage and that subjective qualifications, such as management or leadership skill, are considered at pretext stage)

3 Reap explicitly argues that her reputation as a manager, her law degree, and her greater experience in the industry are factors indicating that she was qualified for the AVP position. (Pl. Br. at 12 (arguing those factors raise genuine issue of material fact concerning whether Reap "was objectively more qualified for the Assistant Vice President position than Jahn").) Without expressly linking those considerations to pretext, however, Reap seems to imply that those factors also speak to the issue of pretext. (Id. (stating that "[f]urther evidence of pretext is supplied by defendant's varying allegations regarding the selection process and reasons which led to Jahn' s appointment") (emphasis added).) The Court shall grant Reap the benefit of the doubt by assuming that she has satisfied her prima facie case and by considering those factors in the context of the pretext analysis. Although "objective job qualifications should be considered in evaluating the plaintiff's prima facie case, the question of whether an employee possesses a subjective quality, such as leadership or management skill, is better left to consideration of whether the employer's nondiscriminatory reason for discharge is pretext." Sempier, 45 F.3d at 729.

The Court considers, therefore, whether the record indicates that a genuine issue of material fact exists concerning whether Reap met the AVP position's objective qualification of broad-based environmental claims experience. Continental contends that Reap's experience was limited to asbestos and other toxic tort claims, and that she had no experience handling hazardous waste claims. Given that gap in experience, according to Continental, Reap lacked the range of environmental claims experience Flood deemed necessary to serve as AVP of the Cranbury ECD.

Reap admits that she had no responsibility for handling hazardous-waste claims during her time with Continental. (Pl. Undisp. Facts ¶ 4; see also Reap Dep. at 39-41.) Reap maintains, however, that she did in fact have broad-based environmental claims experience, including experience managing hazardous waste and right-to-know claims, that she gained in her position as Assistant Vice President of Industrial Claims at CIGNA, a prior employer of Reap. (Pl. Br. at 5-6, 10.) The portions of her deposition testimony to which Reap cites to support that assertion simply fail to provide such support.⁴ Continental, in contrast, points to portions of Reap's deposition in which she states that her involvement with hazardous-waste issues at CIGNA was at best tangential:

4 Specifically, in her brief, Reap cites exclusively to her deposition testimony at pages 15, 20, and 113 to support her conclusion that she had broad-based environmental claims experience gained during her tenure as Assistant Vice President of Industrial Claims at CIGNA. (Pl. Br. at 5-6, 10.) At page 15 of her deposition testimony, Reap names two partners for whom she worked at a law firm, states that she was interviewing for her position at CIGNA while still employed at the law firm, and states that her first position for CIGNA was as a technical specialist in 1983, when she was 42 years old. (Reap Dep. at 15.) Page 20 of Reap's deposition testimony actually supports Continental's argument: Reap states, inter alia, that she had no hands-on experience managing pollution [i.e., hazardous waste] files at CIGNA. (Id. at 20.) And on page 113, Reap's only reference to CIGNA is the following response: "When I began with Cigna, I was an associate with the loss control department. And I was specifically brought in because of my professional background to do work on the liabilities of the professional groups that Cigna insured." (Id. at 113.) Contrary to Reap's argument, that cited evidence fails to support the conclusion or any inference that Reap gained broad-based environmental claims experience during her employment at CIGNA.

Q You were at CIGNA from 1983 until 1990?

A That's right.

Q Did you do any work on pollution [i.e., hazardous waste] issues when you were at Cigna?

A Only tangentially. My assignment was in their what was called major claims area.

Q And major claims involved what?

A Major claims involved asbestos and mass torts.

* * * *

Q You did nothing on pollution [i.e., hazardous waste] issues when you were at Cigna, correct?

A That's correct. Only insofar as it involved my particular department. We would have other meetings where pollution issues would be discussed, and I was part of the team that would be involved in the decision making.

Q But you had no hands-on experience in managing pollution [i.e., hazardous waste] files, correct?

A That's correct.

(Reap Dep. at 18-20.) Although not cited in Reap's brief, Reap does state in another place in her deposition testimony that from 1983 to 1986 at CIGNA she handled professional "and other types of liability claims, hazardous waste, right-to-know laws, sexual abuse." (Id. at 114.) Contrary to Reap's contention, however, she gained that experience while she worked as a loss control specialist at CIGNA from 1983 to 1986, not while serving as Assistant Vice President of Industrial Claims at CIGNA from 1986 to 1991. (Reap Dep. at 21-22

Specifically on the issue of an employer-deemed qualification in the context of nonpromotion, the Third Circuit has cautioned courts:

Where an employer produces evidence that the plaintiff was not promoted because of its view that the plaintiff lacked a particular qualification the employer deemed essential to the position sought, a district court should focus on the qualification the employer found lacking in determining whether non-members of the protected class were treated more favorably. Without such a limitation, district courts would routinely be called upon to act as members of an employer's promotion board or committee. It would subjectively consider and weigh all the factors the employer uses in reaching a decision without the intimate knowledge of the history of the employer and its standards that the firm's decisionmakers use in judging the degree to which a candidate exhibits a particular qualification that the employer has decided is of significance or primary importance in its promotion process.

Ezold v. Wolf, Block, Schorr Solis-Cohen, 983 F.2d 509, 528 (3d Cir. 1992), cert. denied, 510 U.S. 826 (1993). Although the evidence in the record to which Reap points fails to raise a genuine issue of material fact concerning whether she met the objective qualification for the AVP position, the Court shall assume that such qualification was satisfied and advance to the pretext stage of the analysis.

2. Pretext

Even if Reap established a prima facie case, to survive summary judgment when the employer has produced a legitimate, nondiscriminatory reason,⁵ Reap must satisfy the pretext stage. The Court thus considers the third and final step of the burden-shifting analysis, which "is usually the determinative stage of the case." Jones v. Sch. Dist. of Phila., 198 F.3d 403, 412 (3d Cir. 1999). At the final stage, the burden shifts back to the plaintiff to produce "sufficient evidence from which a jury could conclude that the purported reasons for defendant's adverse employment actions were in actuality a pretext for intentional . . . discrimination." Id.

5 A defendant's burden at stage two "is relatively light:" that burden is satisfied if the defendant articulates any legitimate reason for the employment action, and the defendant need not prove that the articulated reason actually motivated that action. Woodson v. Scott Paper, 109 F.3d 913, 920 n. 2 (3d Cir. 1997). Reap does not contest that Continental has met its burden to articulate a legitimate, nondiscrimatory reason for the nonpromotion. Continental proffers that Jahn was better qualified than was Reap for the AVP position in that Jahn had broad-based environmental claims experience and a fine reputation as an effective and well-respected manager, and that reason satisfies Continental's burden under stage two. See, e.g., Bazargani v. Haverford State Hosp., 90 F. Supp.2d 643, 660 (E.D. Pa. 2000); Pepe v. Rival Co., 85 F. Supp.2d 349, 377 (D.N.J. 1999), aff'd, 254 F.3d 1078 (3d Cir. 2001).

In the Third Circuit, a plaintiff arguing pretext may defeat a motion for summary judgment by satisfying the Fuentes/Sheridan standard. Id. at 413; see also Keller v. Orix Credit Alliance, 130 F.3d 1101, 1108-09 (3d Cir. 1997) (describing Fuentes/Sheridan standard). Under that standard, an employee may defeat a motion for summary judgment by pointing "to some evidence, direct or circumstantial, from which a factfinder could reasonably either: (1) disbelieve the employer's articulated legitimate reasons; or (2) believe that invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action. Fuentes, 32 F.3d at 764; see also Sheridan v. E.I. DuPont de Nemours Co., 110 F.3d 1061, 1067 (3d Cir. 1996). The Fuentes/Sheridan standard, therefore, involves a two-prong disjunctive test.

Under the first prong, an employee may defeat a motion for summary judgment by discrediting the employer's proffered reasons, either directly or circumstantially. Fuentes, 32 F.3d at 764. To discredit the employer's proffered reason, the plaintiff

cannot simply show that the employer's decision was wrong or mistaken, since the factual dispute at is issue is whether discriminatory animus motivated the employer, not whether the employer is wise, shrewd, prudent or competent. Rather, the nonmoving plaintiff must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered reasons for its actions that a reasonable factfinder could rationally find them unworthy of credence.

Id. at 765 (citations omitted). Stated differently, the plaintiff may survive summary judgment under the first prong by demonstrating, through admissible evidence, "not merely that the employer's proffered reason was wrong, but that it was so plainly wrong that it cannot have been the employer's real reason." Keller, 130 F.3d at 1109. That required demonstration "places a difficult burden on the plaintiff[.]" Fuentes, 32 F.3d at 765.

Under the second prong of the Fuentes/Sheridan standard, a plaintiff alternatively may survive summary judgment by "adducing evidence, whether circumstantial or direct, that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Id. at 764. To satisfy that element, the plaintiff, for example, "may show that the employer has previously discriminated against [the plaintiff], that the employer has previously discriminated against other persons within the plaintiff's protected class, or that the employer has treated more favorably similarly situated persons not within the protected class." Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998).

Reap appears to suggest that several professional attributes not only made her more qualified than Jahn for the AVP, but also imply that Continental's nonpromotion of her involved pretext. Reap contends specifically that, as compared to Jahn, she was equally well respected as a manager, had equally broad claims handling experience, and additionally had a law degree and much more experience in the industry. (Pl. Br. at 10.) Reap also argues that the Court should take into account a comparison between the 1992 Performance Evaluations of Reap and Jahn and between the 1995 Performance Appraisals of Reap and Jahn. (Id. at 10-12.) The Court will consider each of those contentions in determining whether Reap has demonstrated proof of pretext.

Reap argues that "the evidence clearly shows that Reap was equally well-respected as a manager[.]" (Id. at 10.) Precisely what "evidence clearly shows" such a characteristic is unclear, however, because Reap fails to point in her brief to such evidence in the record.

Outside of her brief, Reap appears to suggest that evidence of her equal respect as manager is located in a comparison of performance evaluations of Reap and Jahn. (Pl. Undisp. Facts ¶ 16.) The Court will next consider the significance, if any, of Reap's proffered comparisons. Reap argues that "[a] comparison of Reap's and Jahn's 1992 Performance Evaluations demonstrate Reap's superior performance": "Out of six Management Accountabilities, Jahn was rated `Meets All Expectations' overall but was rated `Exceeds Expectations in only two. In contrast, Reap, who was also rated `Meets All Expectations' overall and was rated `Exceeds Expectations' in three of six Management Accountabilities." (Pl. Br. at 10.) Reap also points out that between 1990 and 1992, "Jahn's performance evaluation fell from a 4 (Exceeds Expectations) overall to a 3 (Meets All Expectations) overall." (Pl. Undisp. Facts ¶ 14.) Reap further suggests that her "superior performance and managerial skills were also recognized in her 1995 performance evaluation in which Reap was rated Reap was rated [sic] as "Achiever — Strong Contributor" overall." (Pl. Br. at 11.)⁶ Reap also quotes comments from the Core Values portion of her 1995 Performance Evaluation.⁷ In a purely conclusory fashion and without making any comparison, Reap then states that "Jahn's 1995 Performance Appraisal did not reflect a similar level of achievement or recognition from clients and other departments." (Id. at 12.)

6 Specifically, Reap quotes the following from the Key Results section of her 1995 Appraisal:

1. Organize and coordinate efforts toward controlling legal costs through cost-sharing programs, and legal-file management techniques:

Judy is to be credited with leading industry initiatives in organizing and implementing Joint Neutral Defense efforts among commonly situated defendants. She is also a Steering Committee member of the Joint Neutral Maritime Group and is currently attending formation meetings on Lead Litigation Resources. She has assisted the Department in drafting defense billing guidelines, and evaluating auditing systems (LESN), and outside auditing firms.

2. Manage the most significant asbestos exposures:

In spite of the increasing numbers of claims, Judy's efforts on the Bendix account, through the establishment of strict billing guidelines and close oversight of defense firms, have resulted in a reduction in Bendix LAX for the first time in five years. Additionally, she has been instrumental in our improved working relationship with the Allied in-house staff which has enhanced our ability to secure a number of very favorable bulk settlements during 1994. Judy's advice and close coordination of the OFC account, have defeated their efforts to have CIC pay policy limits prematurely.

3. Manage the Special Litigation Unit in the oversight of handling of Silicone Implant, Noise-Induced Hearing Loss, Repetitive Stress, EMF, and AIDS cases:

Judy's unit is well trained and organized in overseeing and handling the claim types designated as Special Litigation.

4. Track developments and keep management informed of emerging issues and claim-types in toxic tort arena:

Judy has shown that she is cognizant of the "need-to-know" threshold at the various senior management levels, and she continues to provide informative reports and news articles which relate to developments in potential claims which may impact future financial results.

(Pl. Br. at 11 (quoting Reap 1995 Performance Evaluation) (emphasis supplied in brief).)

7 Reap quotes the following comments:

Accountability: Judy has a keen understanding of the key objectives and priorities associated with the oversight of special litigation issues, and very effectively manages her staff to insure that the Corporation is well advised in advance of potential claims' concerns.

Customer Focus: Judy has received high praise from the Actuary, Accounting, and Finance Departments for keeping the appropriate individuals apprised of our present and estimated future exposures attendant to our most active asbestos accounts. She was commended by Allied Signal's Chief Counsel for her superb efforts in managing and controlling the Bendix account.

Quality: Judy's reports to senior management on emerging environmental claim-types have always been timely (if not proactive), and of the highest quality in presenting concise yet informative narratives regarding status and potential concerns.

(Id. at 12 (quoting Reap's 1995 Performance Evaluation) (emphasis supplied in brief).)

Reap's conclusory statement that Jahn's 1995 performance evaluation does not reflect the same "level of achievement or recognition" as Reap received is nothing more than her own subjective opinion. At the pretext stage of the analysis, an employee's own conclusory statements regarding her qualifications in relation to a competitor's qualifications are insufficient to defeat summary judgment. Pepe v. Rival Co., 85 F. Supp.2d 349, 379 (D.N.J. 1999), aff'd, 254 F.3d 1078 (3d Cir. 2001).⁸

8 In part II.B.2 of this Memorandum and Order, we discuss more fully that a plaintiff's subjective belief that she is more qualified for a position is insufficient to raise a genuine issue of material fact on pretext. Those principles apply equally to this part of the our opinion. See supra part II.B.2 at 45-49.

The proffered comparison, in any event, suffers from the deficiency that different reviewers prepared the 1995 Performance Evaluations of Reap and Jahn. (Reap Exs. C D: Performance Evaluations of Reap Jahn.) Further, Reap's suggestion that discrimination should be inferred because she received one more "Exceeds Expectations" rating in a rating three years before the promotion decision is untenable. Undoubtedly Reap received

positive comments in her 1995 Performance Evaluation, but as the Third Circuit has indicated, "Pretext is not established by virtue of the fact that an employee has received some favorable comments in some categories or has, in the past, received some good evaluations." Ezold, 983 F.2d at 528.

The circumstances here find a parallel to those in Johnson v. Penske Truck Leasing Co., 949 F. Supp. 1153 (D.N.J. 1996), in which the plaintiff contended, as does Reap here, that a performance-history comparison illustrates pretext. In Johnson, the plaintiff was denied a promotion, and she then came forward at summary judgment with a comparison between her performance appraisals and those of the person receiving the promotion. Id. at 1175. Assuming that a discrepancy in appraisals existed, the court reasoned that any variance is explained when it is considered that "different supervisors are rating different employees in different capacities." Id. at 1175. There, as here, different supervisors evaluated the respective employees. Id. (stating that evaluation procedure "is based upon standards which may be defined differently by the individual appraiser") There, as here, any discrepancy between performance evaluations appears to be the difference in the position or area of employment." Id. ("What is considered to be good work by an employee occupying a lower position, will not necessarily translate into good work by an employee at a higher position.")

In Johnson, as here,

the proffered reasons for the adverse employment decision were not based on alleged poor work performance by [the plaintiff]. Accordingly, [the plaintiff's] reliance on her favorable Performance Appraisals fails to rebut or cast doubt upon the proffered reasons, giving rise to an inference of pretext. Unless [the defendant] relied on [the plaintiff's] poor work performance as an articulated justification, evidence of good performance does not refute or cast doubt upon [the defendant's] legitimate, non-discriminatory reasons for the employment decision. The performance of [the plaintiff] was not an articulated reason for the adverse employment decision. On the contrary, the superior potential of [the person promoted], as documented at the time of the decision, was the basis for the decision.

Id. at 1175-7 6 (citation omitted). The reasoning and ruling in Johnson undermines Reap's reliance on her performance-history comparison to establish pretext.

Reap also suggests that Continental has offered inconsistent accounts of the AVP selection process and inconsistent reasons for Jahn's ultimate appointment as AVP. (Pl. Br. at 12.) Reap contends, therefore, that those alleged inconsistencies supply further proof of pretext. (Id.) Certainly, a plaintiff's demonstration that the reasons given for her adverse employment action did not remain consistent may be viewed as evidence tending to show pretext. Abramson v. William Paterson Coll. of N.J., 260 F.3d 265, 284 (3d Cir. 2001); see also Fuentes, 32 F.3d at 765 (listing "inconsistencies" and "contradictions" in employer's reasons as ways plaintiff might establish pretext) Here, however, the premise for Reap's argument — that Continental's explanations were inconsistent — is flawed; no inconsistency exists.

Reap begins with Continental's Position Statement from October 1996 in response to Reap's EEOC Charge 1. That Statement refers, inter alia, to how Flood began the process of identifying candidates for the AVP position, was qualified to make the selection, and finally appointed Jahn. (October 17, 1996 Position Statement at 3-4)⁹ Pointing out the purported inconsistency, Reap maintains that Continental now "asserts that it was Kelly, not Flood, who identified and recommended Jahn for the position (even though Kelly did not supervise Jahn directly) and Flood only approved the recommendation." (Pl. Br. at 13 (citing Def. Undisp. Facts ¶¶ 9-11).) Reap suggests that "[t]his discrepancy alone provides enough evidence for a jury to conclude that [Continental's] stated reasons for selecting Jahn over Reap for the Assistant Vice President position are pretextual." (Id. at 13.) But there is no such discrepancy. For this summary judgment motion, Continental has provided additional consistent detail about the AVP selection process with regard to Kelly's participation in recommending a successor to Flood.¹⁰ Nothing in the record contravenes Continental's contentions in its EEOC Position Statement that Flood led the selection process, was qualified to do so, and ultimately appointed Jahn. Continental has now described Kelly's role in, and reasons for, recommending Jahn as his (Kelly's) successor, but that does not contradict the position that Flood was responsible for the selection process.¹¹

9 The exact language in Continental's Position Statement to which Reap refers is as follows (Pl. Br. at 13)

In early September, 1995, Kevin Kelly, the Assistant Vice President of Environmental Claims in the Cranbury office (and Charging Party's manager:), informed the Senior Vice President of Corporate Claims, James Flood (DOB 9/01/50), he was leaving. Because of the importance of a smooth transition in the Cranbury office so soon after the merger, Flood immediately began the process of identifying candidates for the successor to the Assistant Vice President position.

Flood was qualified to make this selection because, prior to the merger, he had been Vice President of Environmental Claims and thereafter Senior Vice President of the Corporate Claims Department at Continental Insurance in Cranbury. In those positions, he had become very familiar with the Cranbury Environmental Claims Organization and with the individuals working there. Flood knew he needed to fill the position quickly and hoped it would be filled internally. It was critical to Flood that the individual selected to fill the position be familiar with the organization and have good "people skills" as well as strong technical skills to do the job.

On September 15, 1995, Flood appointed Frederick Jahn (DOB: 8/14/63) to the Assistant Vice President position. Flood appointed Jahn because he believed Jahn has excellent people skills and had the technical skills to do the job.

(Position Statement at 3-4.)

10 The purported inconsistent explanation of Continental to which Reap refers is as follows:

9. In early September 1995, Kelly resigned as AVP of the Cranbury FCD (his post merger title). Flood asked him to recommend a successor, and Kelly recommended Rick Jahn ("Jahn"), another Director in the Cranbury ECD.

10. Kelly recommended Jahn based on his broad claims experience, excellent skills as a manager, and overall exemplary performance during his tenure of nearly nine years in the Cranbury ECD. Kelly worked with Jahn in the ECD for nearly eight years and was personally familiar with his performance and capabilities.

11. Flood agreed with Kelly's recommendation and, effective September 15, 1995, promoted Jahn to AVP of the Cranbury ECD.

(Def. Undisp. Facts ¶¶ 9-11.)

11 Even if the Court were to assume a degree of inconsistency between Continental's EEOC Position Statement and its subsequent description of the AVP selection process, a discrepancy between an employer's EEOC position statement and a subsequent explanation offered at summary judgment does not necessarily generate an inference of pretext. See Simpson, 142 F.3d at 639 n. 15. Because an employer's post hoc explanation does not alone produce a factual dispute about whether the explanation is pretextual and because a plaintiff must point to evidence that demonstrates a reason to disbelieve the employer's explanation, a court may decline "to bind defendants to positions they initially assert in state administrative proceedings by rendering any different position a per se pretext[.]'" Id. (quoting McCoy v. WGN Cont'l Broad. Co., 957 F.2d 368, 374 (7th Cir. 1992)).

Reap has not satisfied her "difficult burden" to show pretext. See Fuentes, 32 F.3d at 765. Under the first prong of the Fuentes/Sheridan standard, Reap has not presented or pointed to sufficient evidence "to meaningfully throw into question, i.e., to cast substantial doubt upon" Continental's reasons for promoting Jahn. The record indicates that Jahn was qualified for the AVP position in that he met the objective qualification of broad-based environmental claims experience and the subjective qualification of a well-respected manager,¹² and Reap does not effectively contest those qualifications. Reap then has presented no evidence that Continental's stated reason for her nonpromotion to AVP — its belief that Jahn was better qualified — was not Continental's real reason. See Martinez v. Quality Value Convenience, Inc., 37 F. Supp.2d 384, 389 (E.D. Pa. 1999) (granting summary judgment because plaintiff's recitation of qualifications does "nothing to rebut [the employer's] claim that it preferred a candidate with broader and more recent experience"). An employer "is not required to prove that those promoted are "better qualified' than the plaintiff." Ezold, 983 F.2d at 531 n. 21. Reap has not demonstrated that Continental's articulated qualifications "are so unrelated to [the AVP position] as to be pretext for intentional discrimination. Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000). Reap's allegation of pretext essentially rests on her disagreement with Flood that Jahn was more qualified for the AVP position and on her contention that she had other and more relevant qualifications.¹³ Reap's assertions that she is more qualified "amount to nothing more than an attempt to displace [Continental's] business judgment with her own," and that attempt "is insufficient to overcome summary judgment. Dungee v. Northeast Foods, Inc., 940 F. Supp. 682, 689 (D.N.J. 1996).

12 That Flood based his decision to select Jahn for the AVP position in part on a subjective qualification — Jahn's management skills — provides no ground to infer pretext. See, e.g., Billet v. CIGNA Corp., 940 F.2d 812, 828 (3d Cir. 1991) ("Barring discrimination, a company has the right to make business judgments on employee status, particularly when the decision involves subjective factors deemed essential to certain positions."); Johnson, 949 F. Supp. at 1172 (stating that "an employer must be granted substantial discretion to exercise subjective judgment in the rendering of employment decisions").

13 Specifically, Reap points to her law degree and greater experience in the industry as proof of her superior qualifications. Those professional attributes, however, do not generate an inference of pretext. Reap admits that a law degree was never a qualification for the AVP position. (Pl. Undisp. Fact ¶ 24.) A plaintiff's proffer of an irrelevant qualification engenders no inference of pretext. Parry v. Jackson Nat'l Life Ins. Co., 54 F. Supp.2d 473, 478 (E.D. Pa. 1999). Reap also admits that Kelly, Jahn's predecessor, had no law degree, nor did Karen Campbell or Helen Merrick, the persons Flood promoted to the AVP positions in Chicago and San Francisco, respectively. (Pl. Undisp. Facts ¶ 24.) Also, although Reap had been "in the industry" longer than Jahn, he had been employed at Continental for seven years as compared to three years for Reap. (Jahn Aff. ¶ 2; Reap Dep. at 36-37.) Further, it is not for a district court to determine that a plaintiff's skills in areas other than the stated qualification area make her qualified for a position. See Ezold, 983 F.2d at 528.

Reap has not satisfied the second prong of the Fuentes/Sheridan pretext standard either. That is, Reap had not "come forward with sufficient evidence from which a factfinder could reasonably conclude that an illegitimate factor more likely than not was a motivating or determinative cause of the adverse employment decision[.]" Fuentes, 32 F.3d at 765. Reap has not shown, for example, that Continental has discriminated against other members of her protected class or other protected categories of persons. See id. Continental has produced evidence that the opposite is true. Not long before Flood promoted Jahn to the AVP position of the Cranbury ECD, Flood promoted Karen Campbell to the AVP position of the Chicago ECD and, in August 1996, promoted Helen Merrick to the position of AVP of the San Francisco ECD. (Flood Aff. ¶ 15.) Those promotions belie an inference that Flood harbored a discriminatory animus toward Reap on the basis of gender.

Further, Kelly initially hired Reap at Continental. When the person contributing to the challenged employment action "was the same person who made the decision to hire, it is difficult to impute to her an invidious motivation that would be inconsistent with the decision to hire." Grady v. Affiliated Cent., Inc., 130 F.3d 553, 560 (2d Cir. 1997).

In addition, Kelly, who recommended Jahn, and Flood, who decided to promote Jahn, were 46 and 45 years old, respectively, at the time of that promotion decision. Kelly and Flood, therefore, were members of the protected group under the ADEA. Although evidence of the decisionmakers' membership in the protected group is not dispositive on whether discrimination occurred, the fact that the decisionmakers are members of a plaintiff's protected class weakens any possible inference of discrimination. Dungee, 940 F. Supp. at 688 n. 3. The membership of Kelly and Flood in Reap's protected age group diminishes any possible inference of age discrimination.

Continental "may have been wrong in its perception of [Reap's qualifications] and, if so, its decision to pass over [Reap] would be unfair, but that is not for us to judge. Absent a showing that [Continental's] articulated reason . . . was used as a tool to discriminate on the basis of sex [or age], [Reap] cannot prevail." See Ezold, 983 F.2d at 533.

Because Reap has not produced or pointed to sufficient evidence to show that Continental's proffered reason was pretextual or that a discriminatory purpose motivated the employment decision, Continental is entitled to summary judgment on Reap's claims for age and gender discrimination as to the AVP nonpromotion.¹⁴

14 The Third Circuit has stated: "It is a sad fact of life in the working world that employees of ability are sometimes overlooked for promotion. . . . The law limits its protection against that unfairness to cases of invidious illegal discrimination." Ezold, 983 F.2d at 542.

B. VP Position

Aries was selected for the VP position. Reap contends that she should have received that promotion, and that the denial of that promotion is unlawful on the basis of age and gender discrimination. Continental argues that it is entitled to summary judgment on Reap's claim that she was unlawfully denied a promotion to the position of VP of the ECD on two main grounds: (1) Reap cannot establish a prima facie case of age discrimination because she cannot prove that Aries was "sufficiently younger," and cannot establish a prima facie case of age or gender discrimination because she cannot prove that she was qualified for the VP position; and (2) even if Reap could establish prima facie cases, she cannot establish that Continental's explanation for her nonpromotion is pretextual. (Def. Br. at 25-32.)

1. Prima Facie Case: "Sufficiently Younger" Element and Qualified Element

a. "Sufficiently Younger" Element

The Court addresses first Continental's argument that Reap cannot establish a prima facie case of age discrimination because she cannot prove the fourth element of the standard, namely, that Aries, the person promoted, was "sufficiently younger." Courts generally agree that satisfaction of the sufficiently younger element of a prima facie ADEA case requires proof of an age difference of at least five years. Martin v. Healthcare Bus. Res., No. 00-3244, 2002 WL 467749, at *5 n. 7 (E.D. Pa. Mar. 26, 2002) ("For purposes of a prima facie ADEA case, the fourth element contemplates an age difference of at least five years."); Fakete v. Aetna, Inc., 152 F. Supp.2d 722, 735 (E.D. Pa. 2001) ("For satisfaction of the fourth element, courts generally require proof that the plaintiff was replaced by a person who is younger than he by at least seven years."); Gutknecht v. SmithKline Beecham Clinical Labs., 950 F. Supp. 667, 672 (E.D. Pa. 1996) (stating that "it is generally accepted that when the difference in age between the fired employee and his or her replacement is fewer than five or six years, the replacement is not considered `sufficiently younger,' and thus no prima facie case is made"); Bernard v. Bethenergy Mines, Inc., 837 F. Supp. 714, 716-17 (W.D. Pa. 1993) (finding that seven-years and six-years differences are not sufficiently younger), aff'd, 31 F.3d 1170 (3d Cir. 1994); Hill v. Bethlehem Steel Corp., 729 F. Supp. 1071, 1074 n. 5 (E.D. Pa. 1989) (same), aff'd, 902 F.2d 1560 (3d Cir. 1990). The Third Circuit in Narin v. Lower Merion School District held that the plaintiff, age 56, failed to establish a prima facie case of age discrimination when the persons hired for the positions in question were 49 and 54 years old; the Court concluded that those age differences reflected that the positions were not filled with persons sufficiently younger to permit an inference of discrimination. 206 F.3d at 333 n. 9.

In this case, at the time Aries was promoted to the VP position, Reap was 54 and Aries was 50. (Reap Dep. at 131.) As a matter of law, therefore, that four-year age difference demands the conclusion that Aries was not sufficiently younger than Reap to permit an inference of discrimination.¹⁵ Having failed to satisfy the fourth element, Reap thus fails to establish a prima facie case of age discrimination under the ADEA with regard to her claim concerning her nonpromotion to the VP position. Accordingly, Continental is entitled to summary judgment on that claim.

15 Although acknowledging the four-year age difference, Reap nonetheless argues, citing Arnett v. Aspin, 846 F. Supp. 1234, 1241 (E.D. Pa. 1994), that courts "have recognized a hybrid protected class of `older women,' recognizing that older women are discriminated against more often than younger men or older men." (Pl. Br. at 6.) Plaintiff concludes that "[t]he age difference between Reap and Aries, together with the recognition of this hybrid type of discrimination, is sufficient to satisfy the age difference requirement for stating a prima facie case of age discrimination here." (Id.) In Arnett, the case upon which Reap relies, the court specifically stated that a "sex-plus-age" discrimination claim is cognizable only under Title VII, not ADEA. 846 F. Supp. at 1240 ("It is important to remember that . . . [the plaintiff's] complaint contains a claim for sex discrimination, not age discrimination."); see also Kelly v. Drexel Univ., 907 F. Supp. 864, 875 n. 8 (E.D. Pa. 1996). Because Reap seeks to invoke Arnett's hybrid theory of discrimination in support of her ADEA claim, that theory is inapplicable by Arnett's own terms.

b. Whether Reap Was Qualified

The Court next addresses Continental's argument that it is entitled to summary judgment on the ground that Reap cannot establish a prima facie case of age or gender discrimination under ADEA or Title VII because she cannot prove that she was qualified for the VP position.

With regard to the VP hiring process, the parties do not dispute certain facts. After promoting Jahn to the Cranbury AVP position, Flood and Samuel, Vice President of Human Resources, began a search for a candidate to fill the newly created position of VP of the ECD. The person selected as VP would be based in Chicago and responsible for overseeing the three regional claims centers in Cranbury, Chicago, and San Francisco, which included 160 employees. Given that responsibility, the primary requirements for the VP position were prior experience managing a multi-location organization and environmental claims experience. Aries met the qualification of management experience of a multilocation organization through work performed at Continental/CNA. Aries, however, did not have experience managing an environmental claims office, and his prior positions did not involve making coverage determinations. Reap asked that Flood consider her' (Reap) for the VP position, and at her request, Flood met with Reap in January 1996 to discuss the position. Flood offered the position to Aries, and Aries became VP of the ECD effective May 1996.

The parties do dispute whether Reap met the objective qualification of experience managing multi-location, geographically dispersed offices. Continental maintains that Reap had no such experience, either at Continental or any prior employer. (Def. Br. at 26.) Reap does not dispute that Aries had such experience or that she (Reap) had gained no such experience while working at Continental. Without citation to the record in her brief, Reap asserts, however, that Continental "ignore's [sic] the experience Reap gained as Assistant Vice President of Industrial Claims at CIGNA where she managed cases handled by employees located in multiple, geographically disparate locations." (Pl. Br. at 6) (emphasis added). As Continental correctly states (Def. Reply Br. in Supp. of Mot. for Summ. J. ("Def. Reply Br.") at 6), the management of "cases" or "claims" supervised by employees in multiple locations is different from managing multiple offices or supervising employees at multiple locations. Although she testified and still contends that she had responsibility at CIGNA for supervising "claims" received from other offices, Reap acknowledges that she did not have responsibility for managing multiple offices or for supervising employees at multiple locations.¹⁶ Based on that evidence, viewed in the light most favorable to Reap, there is no genuine issue of material fact that Reap lacked a required, objective qualification for the VP position, namely, prior experience managing multiple, geographically dispersed offices. See, e.g., Narin, 206 F.3d at 332 (stating that plaintiff failed to prove prima facie case when she lacked teaching certification); Parry v. Jackson Nat'l Life Ins. Co., 54 F. Supp.2d 473, 477 (E.D. Pa. 1999) (granting summary judgment when plaintiff lacked sales and marketing experience and thus lacked objective qualification). The Court, however, will assume nonetheless that Reap has satisfied her burden of establishing a prima facie case, and therefore we next consider the question of pretext.

16 Both parties refer to the same portion of Reap's deposition testimony:

Q Now, when you were the assistant vice president for industrial affairs, you were also located in the Philadelphia office?

A Yes, I was.

Q How many people did you supervise when you were the assistant vice president for industrial claims?

A I think probably — this is just to the best of my recollection — about 45 or 50.

Q And those people were all located in the Philadelphia office?

A The ones that I supervised directly, yes.
* * * *

Q You didn't have any responsibility at Cigna for supervising offices outside of the Philadelphia office, did you?

A They didn't report directly to me unless they were handling a claim of the type that I was responsible for.

Q And you did not have any of the responsibilities that a manager would have for people outside the Philadelphia office, like doing performance reviews, doing terminations, hiring, that sort of thing?

A No.

Q And it was never in your job description that you managed an office outside of the Philadelphia office, correct?

A That's correct.
(Reap Dep. at 114-16.) That testimony supports Reap's contention that she managed "claims" from several offices at CIGNA, but it also supports Continental's argument that Reap had no experience managing multiple offices or for supervising employees at multiple, geographically dispersed locations.

2. Pretext

As noted above, the principles related to the Fuentes/Sheridan standard apply to the pretext stage of the burden-shifting analysis.¹⁷ Reap grounds her pretext argument on her belief that she was "clearly more qualified for the Vice President position than Aries," (Pl. Br. at 14.) According to plaintiff, Aries lacked environmental claims experience, a primary requirement for the position, while Reap, in addition to twelve years of experience managing all types of environmental claims, had managed claims handled by employees located in multiple, geographically dispersed offices. (Id. at 13-14.)

17 Again, Reap does not dispute that Continental has articulated a legitimate nondiscriminatory reason for the promotion of Aries, which is that Aries was the best qualified candidate in that he had experience managing multiple, dispersed offices.

Reap's pretext position, therefore, hinges on her contention that she was more qualified for the VP post than was Aries. A deficiency in that position is that a plaintiff's belief that she is more qualified for a position, however sincere, does not generate a genuine issue of material fact. See Dungee, 940 F. Supp. at 689; see also Holmes v. Fed. Aviation Admin., No. CIV. A. 98-5071 (JEI), 1999 WL 771594, *10 (D.N.J. Sept. 29, 1999) The Third Circuit has indicated that "`more than a denial of promotion as a result of a dispute over qualifications' must be shown to prove pretext[.]" Ezold, 983 F.2d at 523 (quoting Molthan v. Temple Univ., 778 F.2d 955, 962 (3d Cir. 1985)). The decisionmaker's perception, not the plaintiff's perception of herself, is the relevant consideration, and a court's role is not "to second-guess an employer's business judgment as to who is more qualified for the job." Dungee, 940 F. Supp. at 689. Although a plaintiff's superior qualifications may be relevant to the question of pretext, evidence of such qualifications, standing alone, does not create a genuine issue of material fact concerning pretext. See Simpson, 142 F.3d at 647 (holding that plaintiff's superior qualifications failed to raise genuine issue of material fact concerning pretext); Ezold, 983 F.2d at 528 (same); Farahmand v. Cohen, No. 97-7952, 1999 WL 80262, at *6 (E.D. Pa. Feb. 11, 1999); Dungee, 940 F. Supp. at 689 (same). At the pretext stage of the analysis, an employee's own conclusory statements regarding her qualifications in relation to a competitor's qualifications are insufficient to defeat summary judgment. Pepe, 85 F. Supp.2d at 379. That is all that Reap offers here.

It is undisputed that Aries had prior experience managing multiple locations. The record reveals no genuine dispute that Flood considered such prior management experience an important qualification for the VP position. The Position Profile that Flood and Samuels prepared emphasized the need for a candidate who could effectively manage and integrate three geographically dispersed organizations. (Position Profile) Additionally, Flood himself consistently told Reap the main criterion for the VP position is the ability to manage multiple locations.¹⁸

18 Prior to Reap's interview, Flood wrote to her:

The main characteristic they [sic] we feel most internal candidates lack is extensive experience in managing multiple locations of claims operations. The new VP will be managing three offices with over 150 people. We want someone who has done this or had equivalent experience, ideally. The one internal candidate that we have is not in the Environmental Claims operation presently but has this kind of background. There are other important characteristics that we are Looking for in the candidates for the new VP job but this is the one that most people currently in the units lack.

(Flood Aff. ¶ 41 Ex. 6: E-Mail Messages between Reap and Flood.) After her interview, Flood again advised Reap that she did not have the "extensive managerial experience with emphasis on managing people and operations in multiple locations" that Flood was seeking. (Id.)

Further, Flood and Samuel jointly conducted the selection process for the VP position. As a 50-year-old woman at the time of the selection process, Samuel was a member of both of Reap's protected classes, age and gender. As noted above, a decisionmaker's membership in a plaintiff's protected class weakens any possible inference of discrimination. Dungee, 940 F. Supp. at 688 n. 3. The membership of Samuel in Reap's protected age and gender groups diminishes any possible inference of age or gender discrimination.

Reap argues that Continental's explanation for her nonpromotion to VP is pretextual because "Aries lacked a primary requirement for the position, environmental claims experience." (Pl. Br. at 13.) The record indicates, however, that Continental chose to focus on the qualification of experience managing multiple offices, in the absence of a candidate possessing both preferred qualifications. Although that prioritization may or may have been preferable, it was one that Continental was entitled to make. A plaintiff does not demonstrate pretext by simply showing that the employer was mistaken in its business judgment, for "[t]he question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is [discrimination]." Keller, 130 F.3d at 1109 (quoting Carson v. Bethlehem Steel Corp., 82 F.3d 157, 159 (7th Cir. 1996)); see also Hodgkins v. Kontes Chemistry Life Sci. Prod., No. Civ. A. 98-2783 (JBS), 2000 WL 246422, at *14 (D.N.J. Mar. 6, 2000); Grove v. H.E.F., Inc., No. CIV. A. 97-CV-373, 1998 WL 107179, at *3 (E.D. Pa. Mar. 11, 1998); Weiss v. Parker Hannifan Corp., 747 F. Supp. 1118, 1128 (D.N.J. 1990). The Third Circuit "has indicated that absent a sufficient showing by the plaintiff, courts should not substitute their own judgment, or the judgment of anyone else, for that of the employer." Pepe, 85 F. Supp.2d at 367 (citing Healy, 860 F.2d at 1220); see also Billet v. CIGNA Corp., 940 F.2d 812, 825 (3d Cir. 1991) (stating that "[b]arring discrimination, a company has the right to make business judgments on employee status"). Statutes prohibiting discrimination in employment "are designed to protect against discrimination, not to displace employers' discretion in making employment decisions." Pepe, 85 F. Supp.2d at 368; see also Burdine, 450 U.S. at 259 (stating that antidiscrimination statutes are not intended to "diminish traditional management prerogatives"); Billet, 983 F.2d at 828 (stating that "Court will not interfere in an otherwise valid management decision" without evidence to cast doubt on employer' s reason)

The Court concludes that Reap has failed to produce or point to evidence creating an inference of pretext with regard to the VP position.

III. Claims for Retahation Under Title VII, ADEA, and NJLAD

Reap alleges that CNA unlawfully retaliated against her in violation of Title VII, ADEA, and NJLAD by firing her for filing an EEOC Charge. (Compl. Counts Three, Four, Six.) The same burden-shifting framework applied to Reap's discrimination claim also applies to her retaliation claims. See, e.g., Bazargani v. Haverford State Hosp., 90 F. Supp.2d 643, 653 (E.D. Pa. 2000).

Reap first must establish a prima facie case. The parties agree that standards for establishing a prima facie retaliation claim under Title VII, ADEA, and NJLAD are the same (Pl. Br. at 15 n. 4; Def. Br. at 33). See Horvath v. Rimtec Corp., 102 F. Supp.2d 219, 234 (D.N.J. 2000). To establish a prima facie case of retaliation, a plaintiff must prove that (1) she engaged in protected activity; (2) she was subjected to adverse employment action contemporaneous with or subsequent to the protected activity; and (3) a causal link exists between the protected activity and the adverse employment action. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000); Kachmar v. Sungard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997); Delli Santi v. CNA Ins. Co., 88 F.3d 192, 198 (3d Cir. 1996); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990).

Continental argues that Reap fails to establish a prima facie case of retaliation because she cannot demonstrate a causal link between her protected activity (i.e., filing an EEOC Charge) and the adverse employment action to which she was subjected (i.e., the termination of her employment).¹⁹ (Def. Br. at 33.) Continental, therefore, acknowledges that Reap satisfies the first and second elements of a prima facie case,²⁰ but argues that Reap is unable to satisfy the third element.

19 Reap filed a second charge with the EEOC in May 1998. That second charge, filed after the adverse employment action, is irrelevant for purposes of Reap's retaliation claim. See Bazargani, 90 F. Supp.2d at 653 n. 20.

20 The filing of an EEOC Charge unquestionably is protected activity, see, e.g., Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997); Elwell v. PP L, No. 99-2716, 2001 WL 1529063, at *8 (E.D. Pa. Nov. 28, 2001); Hodgkins v. Kontes Chemistry Life Sciences Product, No. Civ. A. 98-2783 (JBS), 2000 WL 246422, at *18 (D.N.J. Mar. 6, 2000), and termination of employment undeniably is an adverse employment action. At two points in her brief, Reap cursorily seems to suggest that the performance evaluations themselves and the PIP constitute adverse employment actions. (See Pl. Br. at 14 (arguing that in focusing on Reap's termination, Continental "takes an unduly narrow view of what can constitute an "adverse employment action'"); id. at 15 (stating that Reap was "subjected to adverse employment activity, receiving written warnings regarding her performance, receiving a negative performance evaluation, being placed on a Performance Improvement Plan ("PIP"), and ultimately being discharged (although defendant ignores all but the last)").) Other than those thin suggestions, Reap does nothing more with that argument. Reap, therefore, fails to argue, let alone point to evidence, as to how those allegedly adverse actions alter "the employee's compensation, terms, conditions, or privileges of employment," or deprive her "of employment opportunities." Robinson, 120 F.3d at 1300; see also Weston, 251 F.3d at 431 (holding that absence of evidence that written reprimands negatively affected terms and conditions of employment demonstrated that such reprimands were not adverse actions) Accordingly, the Court will consider the termination of Reap's employment the sole adverse employment action for purposes of this motion.

Reap filed her EEOC Charge in June 1996, and her employment with Continental was terminated in May 1998. The nearly two-year time span between the protected activity and the alleged retaliation is too long to justify an inference of retaliation. See Weston v. Commonwealth of Pa., 251 F.3d 420 (3d Cir. 2001) (holding that inference of causation was not justified when, absent other evidence, the alleged retaliatory activity occurred more than one year after protected action); Krouse, 126 F.3d "at 504 (concluding that nineteen-month interval between protected activity and alleged retaliation, without other evidence of discriminatory animus in interim, was insufficient as matter of law to support inference of causation); Holmes, 1999 WL 771594, at *11 (finding that period of thirteen months between protected activity and alleged retaliation "is just too great to justify an inference of retaliation"); Woods v. Bentsen, 889 F. Supp. 179, 187 (E.D. Pa. 1995) (stating that "courts generally hold that if at least four months pass after the protected action without employer reprisal, no inference of causation is created")

In the absence of temporal proximity, a court may look for other "evidence of intervening antagonism or retaliatory animus[.]" Krouse, 126 F.3d at 504. Temporal proximity and circumstantial evidence of a pattern of antagonism, however, "are not the exclusive ways to show causation, as the proffered evidence, looked at as a whole, may suffice to raise the inference." Kachmar, 109 F.3d at 177; see also Farrell, 206 F.3d at 280-81 (stating that causation may be inferred from other circumstantial evidence gleaned from record as whole)

Reap argues that an intervening pattern of antagonism or animus took the form of "the continuous harassment to which Jahn subjected Reap by making repeated baseless complaints about her performance." (Pl. Br. at 14.) According to Reap, "Jahn began to build a file of alleged deficiencies in [Reap's] performance" from the time Jahn learned that Reap had filed an EEOC Charge. (Id. at 16.) Reap suggests that "Jahn's systematic, continuing course of harassment is precisely the type of pattern the courts have found to provide a causal link." (Id. at 18.)

As evidential support for those arguments, Reap points to e-mails from Jahn to Reap beginning in January 1997 and to a Performance Improvement Plan that Jahn presented to Reap in April 1998. (Id. at 16-17.) Reap suggests that (1) "beginning in January, 1997 [Jahn] issued an inordinate number of performance related E-mails to Reap alone, many of which also contain handwritten notations further bolstering Jahn's "case' against Reap" (id. at 16), (2) less than a week after the EEOC stepped up its investigation of Reap's Charge, Jahn transmitted to Reap via e-mail in late October 1997 a baseless evaluation critical of her job performance, (3) Jahn continued to issue baseless performance-related e-mails through the end of 1997 and into 1998, and (4) on April 16, 1998, Jahn presented Reap with a Performance Improvement Plan that was based on "erroneous factual suppositions" and "set forth vague, unmeasureable goals Reap would have to meet" or else her employment would be terminated." (Id. at 16-17.)

Continental correctly asserts that the predicate for Reap's retaliation argument — that Jahn knew of Reap's EEOC Charge and began to "build a file of alleged deficiences" — lacks factual support. As Jahn outlined various deficiencies in Reap's work performance starting in January 1997 and through at least her October 1997 performance review, Jahn had no knowledge that Reap had filed an EEOC Charge.²¹ Jahn did not come to know of Reap's EEOC Charge until December 1997, when Reap herself told Jahn about it. (Jahn Aff. ¶¶ 33-34.) That fact is uncontradicted, and Reap herself acknowledges that she has no evidence that Jahn knew of her Charge before December 1997. (Reap Dep. at 164-66.) Prior to December 1997, therefore, Jahn could not have been retaliating against Reap in her performance evaluations for an EEOC Charge about which he had no knowledge.²² See Jones, 198 F.3d at 415 (affirming grant of summary judgment in retaliation claim on the basis that responsible persons had no information about underlying protected discrimination claim); Anderson v. Deluxe Homes of Pa., Inc., 131 F. Supp.2d 637, 656 (M.D. Pa. 2001) ("The person who performed the adverse employment action against the plaintiff must have had knowledge of the plaintiff's protected activity."); Bazargani, 90 F. Supp.2d at 654 (stating that finding of causal connection depends on evidence that decisionmaker knew of protected activity); Bedford v. Southeastern Pa. Transp. Auth., 867 F. Supp. 288, 293 (E.D. Pa. 1994)

21 Reap implies that Jahn prepared her October 17, 1997 Performance Review in retaliation for the EEOC's document request via letter dated October 22, 1997. (Pl. Br. at 16.) The Continental Law Department in Chicago only received the EEOC's document request on October 27 (Diana Supp. Aff. Ex. 2), and Jahn provided Reap her review in New Jersey at 11:56 a.m. that same day (Id. Ex. 3.) It defies logic that Jahn could have learned of the EEOC document request and then prepared Reap's detailed review all on the morning of October 27. But more importantly, Reap herself acknowledges that she has no evidence that Jahn knew of her EEOC Charge before Reap told Jahn about it in December 1997. (Reap Dep. at 164-66.)

22 Reap argues that "the fact that [Continental] raises the defense of lack of knowledge for the first time" in its opening brief and did not address it in its EEOC position statement "implies that that defense is a recent fabrication." (Pl. Br. at 16.) That argument appears inaccurate. Continental raised the issue of Jahn's knowledge in Reap's deposition, where she acknowledged that she has no evidence to support her claim that Jahn knew of her EEOC Charge before December 1997. (Reap Dep. at 6.)

Jahn's post-December 1997 evaluations were made with the knowledge that Reap had filed an EEOC Charge. By Reap's own account and theory, however, Jahn displayed a continuous pattern of negative evaluations of Reap, both before and after December 1997, when Jahn discovered Reap's EEOC Charge. That consistency belies a suggestion of retaliatory animus establishing a causal connection. In Shaner v. Synthes (USA), the Third Circuit held that an employee's negative performance evaluations did not evidence retaliation for his filing of an EEOC charge. 204 F.3d 494, 504-05 (3d Cir. 2000). The record in that case showed that the employee's performance evaluations contained similar criticisms both before and after he filed his EEOC charge. Id. The Court concluded that the record did not support a finding that there was intervening retaliatory animus so as to establish a causal connection between the protected activity and the later performance evaluation, especially in view of the circumstance that the performance evaluations were consistent pre- and post-filing of the charge. Id. at 505²³ In this case, a similar consistency across Jahn's performance evaluations of Reap is found both before and after Jahn's acquiring knowledge of Reap's EEOC Charge in December 1997, and that consistency belies an inference of causal connection between the EEOC charge and the alleged retaliatory action.²⁴

23 The Third Circuit added the following observation with respect to performance evaluations in Shaner:

While it is possible that a manager might make a poor evaluation to retaliate against an employee for making an EEOC charge, still it is important that an employee not be dissauded from making what he believes is an appropriate evaluation by a reason of a fear that the evaluated employee will charge that the evaluation was retahatory. In this regard, we are well aware that some employees do not recognize their deficiencies and thus erroneously may attribute negative evaluations to an employer's prejudice. Accordingly, in a case like this in which the circumstances simply cannot support an inference that the evaluations were related to the EEOC charges, a court should not hesitate to say so.

204 F.3d at 505.

24 Reap argues that Jahn did not discipline or issue performance-related e-mails to another employee, Jeff Quixley ("Quixley"), for alleged poor supervisory practices. (Pl. Br. at 16-17.) Reap, however, supports that assertion with only her own deposition testimony, in which she testifies that other employees told Reap about the alleged deficiencies in Quixley's job performance. (See Pl. Br. at 17 (citing Reap Dep. at 144-45, 292-92, 309-12).) Those alleged comments from other employees constitute hearsay and thus are insufficient to forestall summary judgment. Philbin v. Trans Union Corp., 101 F.3d 957, 961 n. 1 (3d Cir. 1996).

Even if a causal connection is assumed, however, intervening unprotected conduct may sever the putative causal connection between protected activity and an adverse action. See, e.g., Agostinelli v. Christiana Health Care Sys., Inc., No. 98-217-GMS, 2001 WL 987538, at *10 (D. Del. Aug. 29, 2001). Here, undisputed facts show that intervening unprotected conduct of Reap severed any putative causal link. Jahn spoke with Human Resources personnel Samuel and Johnson in early 1998 regarding whether Reap should be placed on a Performance Improvement Plan ("PIP"), in accordance with Continental's Performance Improvement Program. Under that Program, an employee is given assistance to reach and maintain a minimum level of performance. An employee may be placed on a PIP whenever an employee's work or adherence to company rules is identified as being less than competent. The employee is notified in writing of the performance deficiencies and of the actions required to reach a competent level of performance. Failure to improve according to the terms of the PIP may result in the employee being placed on probation or may subject the employee to termination. Jahn and Johnson prepared a PIP for Reap, and Jahn and Johnson met with Reap on April 16, 1998, to present and discuss the PIP. Jahn and Johnson informed Reap that her performance must improve within 30 days and that absent such improvement, she could be placed on probation and her future employment with Continental could be threatened. On April 20, 1998, Reap submitted a reply to the PIP, claiming that it was unmerited, lacked specific guidance on how she might improve, and was retaliatory.

One day later, on April 21, 1998, Reap distributed a memorandum to all staff members of her Unit. In that memorandum, Reap quotes from the PIP Jahn and Johnson had given Reap and from her response to it. Reap also quotes from an e-mail Jahn sent to Reap concerning employee rankings he had requested and from Reap's response to Jahn's e-mail, and the memorandum also includes a disclosure about the specific performance review of one former employee. Specifically, Reap shared with the staff the following from her e-mail to Jahn: "I analyzed the job performance of each of my employees and prepared individualized reports which were accepted by you without question (except in the case of Linda Sikora, whose Performance Review you re-wrote to justify your decision to terminate her[.])" Jahn and Johnson discussed that incident, and they met with Reap on May 18, 1998, to confirm that she had distributed the memorandum to the members of her Unit, which Reap admitted. That same day, Jahn and Johnson discussed the matter with Aries and Samuel, and all agreed that the termination of Reap's employment was warranted. Later that afternoon, Jahn and Johnson met with Reap and terminated her employment. After Reap's termination, Jahn appointed Leticia Diaz as Reap's replacement as Director.

Reap's defense of her action in distributing the memorandum is as follows: The memorandum contains "absolutely no confidential information whatsoever. While the memorandum discusses the ranking process, it does not reveal how any particular staff member was ranked. In addition, while the memorandum mentions a Performance Review given to Linda Sikora, it gives absolutely no details about that review except to state that Jahn re-wrote it[.]" (Pl. Br. at 19.) Whether the memorandum discloses technically confidential information is inconsequential, however. What is indisputable is that the distributed memorandum constituted provocative insubordination and publicly confrontational conduct on the part of an employee toward her supervisor. Even if Reap's other purported job performance problems are assumed to be untrue, that insubordination and defiant conduct immediately prior to termination are sufficient to sever any putative causal connection between the protected activity and retaliatory conduct. Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999) (holding that termination was immediate result of insubordination despite employee's reference to protected complaint in argument); Kiel v. Select Artificials, Inc., 169 F.3d 1131, 1136 (8th Cir. 1999) (holding that argument immediately prior to termination cut any suggested causal connection); Mesniak v. Gen. Elec. Co., 950 F.2d 816, 828 (1st Cir. 1991) (holding that no causal link existed when "particularly provocative act in outright defiance" occurred prior to termination and nine months following protected complaint); Agostinelli, 2001 WL 987538, at *10 (finding that employee's antagonistic, confrontational, and insubordinate conduct severed any putative causal link between protected activity and retaliatory conduct); Alston v. Rice, 825 F. Supp. 650, 655 (D. Del. 1993) (holding that plaintiff was terminated for "insubordination," "causing discontent amongst [his] staff," and "poor work performance"). Soon after Reap widely distributed the memorandum, the group of four decisionmakers — Jahn, Aires, Samuel, and Johnson — unanimously decided that Reap's employment should be terminated, and plaintiff refers only to Jahn's knowledge of her EEOC Charge 1.

The ultimate burden of persuading the factfinder that retaliatory intent had "a determinative effect" on the employer's decision remains at all times with the plaintiff. Shaner, 204 F.3d at 501 n. 8. Viewing the evidence in the light most favorable to Reap, the Court determines that she has not established her prima facie case of retaliation, and no reasonable factfinder could conclude that retahatory intent had a determinative effect on Continental's decision to terminate her employment.

CONCLUSION

The Court concludes that defendant Continental Casualty Company is entitled to summary judgment. Even if the Court assumes that plaintiff Judith B. Reap has set forth prima facie cases of age and gender discrimination with regard to nonpromotions to the AVP and VP positions, she has failed to satisfy the pretext stage of the burden-shifting framework. Further, Reap has failed to establish a prima facie case of retaliation in that she does not demonstrate a causal connection between the protected activity and the adverse employment action. Accordingly, the Court will dismiss with prejudice Reap's Complaint against Continental.

IT IS THEREFORE on this day of June, 2002, ORDERED that the summary judgment motion of Continental Casualty Company (no. 40-1 on the docket) be and hereby is GRANTED; and

IT IS FURTHER ORDERED that all remaining claims against defendant be and hereby are DISMISSED WITH PREJUDICE, and as this disposes of all of plaintiff's claims against defendant, the Clerk of the Court is hereby advised that this case may be designated as closed.