Bermingham v. Sony Corp. of America, Inc.

Decision Date19 March 1993
Docket NumberCiv. A. No. 92-987 (AJL).
Citation820 F. Supp. 834
PartiesJohn BERMINGHAM, Plaintiff, v. SONY CORPORATION OF AMERICA, INC., Sony U.S.A., Inc., Sony Corporation and Shinichi Takagi, Defendants.
CourtU.S. District Court — District of New Jersey



Robert E. Goldman, Speno Goldman Goldberg Steingart & Penn, P.C., Mineola, NY, for plaintiff.

Clyde A. Szuch, Gregory C. Parliman, Pitney, Hardin, Kipp & Szuch, Morristown, NJ, and Arnold I. Roth, Lauren Reiter Brody, Rosenman & Colin, New York City, for defendants.


LECHNER, District Judge.

This employment discrimination action1 is brought by plaintiff John Bermingham ("Bermingham") against Sony Corporation of America, Inc. ("Sony America"), Sony U.S.A., Inc. ("Sony USA"), Sony Corporation ("Sony Japan")2 (collectively, the "Sony Corporation") and Shinichi Takagi ("Takagi") (collectively, the "Defendants"), pursuant to section 1981 ("Section 1981") of the Civil Rights Act of 1866 (the "Civil Rights Act"), as amended,3 42 U.S.C. § 1981 et seq., 42 U.S.C. § 2000e et seq., as amended ("Title VII"), the New Jersey Law Against Discrimination (the "NJLAD"), N.J.S.A. 10:5-1 et seq., and New Jersey common law. Jurisdiction appears to be appropriate pursuant to 28 U.S.C. §§ 1331, 1343 and 1367.

Count I is a claim for violation of Section 1981 under both the Civil Rights Act and the 1991 Civil Rights Act. Id., ¶ 218. Count II is a claim for breach of an employment-at-will contract which also is alleged to violate the NJLAD and the federal public policy of Title VII.4Id., ¶ 225-228. Count III is a claim for tortious discharge which is alleged to violate the public policies of both the NJLAD and Title VII.5Id., ¶ 232. Count IV is a claim for breach of contract. Id., ¶ 237. Count V is a claim for knowing and malicious defamation and slander. Id., ¶¶ 241-243. Count VI is a claim for prima facie tort. Id., ¶¶ 247-250. Count VII is a claim for intentional and malicious infliction of emotional harm. Id., ¶ 253. Count VIII is a claim against Takagi for tortious interference with contract. Id., ¶ 258.

Bermingham seeks fifteen million dollars in compensatory damages and one hundred million dollars in punitive damages on each of Counts I through VII. With regard to Count VIII, Bermingham seeks thirty million dollars in compensatory damages and thirty million dollars in punitive damages.6

Currently before the court is the motion of the Defendants to dismiss the Amended Complaint pursuant to Fed.R.Civ.P. 12(b)(6).7 For the reasons set forth below, the Defendants' motion is granted; the Amended Complaint is dismissed.

The Parties

Bermingham is a forty-seven-year old caucasian. Amended Complaint, ¶¶ 15, 45. He resides in Kinnelon, New Jersey. Id., ¶ 45. He was first employed by Sony Corporation in 19829 and contends he developed an "impeccable employment history." Id., ¶ 4. He received numerous commendations from superiors, who expressed expectations of his promotion. Id. He received numerous salary increases, bonuses and promotions stemming from his first position at Sony Corporation as Vice President of Sony Tape Sale Company ("Sony Tape") in 1982. Id. He became the President of Sony Tape in 198910. Id. Presently, Bermingham's position at Sony Corporation is Executive Vice President of Sony Electronics Group ("Sony Electronics"). Id., ¶¶ 4, 5.

Sony Corporation is a Japanese corporation with its principal place of business in Tokyo, Japan. Id., ¶ 16. Sony U.S.A. is a wholly owned subsidiary of Sony Corporation. It is organized and exists under the laws of Delaware and has its principal place of business in New York City. Id., ¶¶ 17, 20. Sony America is a wholly owned subsidiary of Sony U.S.A. It is organized and exists under the laws of Delaware and has its principal place of business in Park Ridge, New Jersey. Id., ¶¶ 18, 19. Although Sony Tape and Sony Magnetic are not named in the Amended Complaint, they are mentioned. Id., ¶ 21.

The top senior management of Sony Corporation is allegedly Japanese and the senior corporate structure of Sony Corporation is predominately Japanese. Id., ¶¶ 22, 23. Sony Corporation is alleged to be comprised of "Japanese" companies. Id., ¶ 24.

Takagi, the only individual named in this action, "is an employee and agent of" Sony Corporation. Id., ¶ 25. He is the president of Domestic Sales and Marketing of Sony Recording Media of America ("Sony Media America") and is the president and Chief Operating Officer of Sony Media America.11 Id., ¶ 25. Takagi is Japanese. Id., ¶ 26.

The following individuals are mentioned in the Amended Complaint. Masaaki Morita ("M. Morita") is Chairman of the Board and Chief Executive Officer of Sony America, Sony Engineering and Manufacturing of America ("Sony Engineering and Manufacturing") and Sony Media America. Id., ¶ 27. He is also the Vice Chairman of the Board of Sony USA. Id. M. Morita is Japanese. Id., ¶ 28. Norio Ohga ("Ohga") is the Chairman of the Board of Sony USA. Id., ¶ 29. Ohga is Japanese. Id., ¶ 30. John Stern ("Stern") is the Executive Vice President of Human Resources at Sony America. Id., ¶ 31. Stern's race is not alleged. Akio Morita ("A. Morita") is Chairman of the Board of Sony Corporation and an officer and director of Sony USA and Sony America. Id., ¶ 32. A. Morita is Japanese. Id., ¶ 33. Before 1 April 1989, John Hollands ("Hollands") was president of Sony Magnetic Products Group (the "SMPG"). Hollands' race is not alleged. Before 1 January 1992 Neil Vander Dussen ("Vander Dussen") was the Vice Chairman of Sony America, Sony Engineering and Manufacturing and Sony Media America. Id., ¶ 35. His race is not alleged. Dr. T. Aoki ("T. Aoki") is Managing Director of Sony Recording Media Group ("Sony Recording Media"). Id., ¶ 36. T. Aoki is Japanese. Id., ¶ 37.

Employment With Sony Corporation12

In 1982, Sony Corporation hired Bermingham as a Vice President of Sales and Marketing for Sony Tape, a division of Sony America.13Id., ¶ 55. Bermingham contends that "it is precisely because of his proven talents and history of successful employment that he was hired by Sony Corporation." Id., ¶ 54. During the nine years of his employment with Sony Corporation, Bermingham contends he was responsible at different times for the "sales, marketing, and distribution of magnetic media ... in the United States and, for a significant portion of that time, was also responsible for finance and operations." Id., ¶ 85. Bermingham asserts he developed Sony Corporation's magnetic products business from a thirty million dollar business to a seven hundred and fifty million dollar business. Id., ¶ 87.

In 1986 he "redeveloped Sony Corporation's professional video and audio tape business" turning it into the number one market share holder and "greatest profit producer for Sony Corporation in the Magnetic Products Group in the United States." Id., ¶ 90.

In 1991 Bermingham further established strategic plans for Sony Corporation's entry into the American market for alkaline, lithium and rechargeable batteries. Id., ¶ 91.

Bermingham contends his employment record with Sony Corporation indicates exceptional performance and he provides the following table for support:

                Areas of Performance   1982           1990
                Sales                  $30 M          $750 M
                                                      Constant $ = $2.8B
                Audio Tape             1%             23%
                Video Tape             3%             15%
                Pro Tape               Single Digit   24%-80%
                Data Media             0%             20%-45%

Id., ¶ 92. To further evidence his track record at Sony Corporation, Bermingham refers to his salary increases, employment reviews and promotions.

On 1 September 1983, 1 September 1984 and 17 September 1985, he received "substantial salary increases." Id., ¶¶ 59, 60, 61. On 2 September 1986, Hollands reviewed his employment progress and stated: "Mr. Bermingham's general performance is `very good, he normally achieves objectives, budgets, sales, etc. leading to high rate of success, and his special success was the 1986 national sales meeting.'" Id., ¶ 62. Hollands listed Bermingham's "major strengths" in the following way: "1 — product knowledge; 2 — managing people; 3 — presenting ideas and concepts; 4 — interface with Japan; 5 — enthusiasm." Id., ¶ 63. Hollands stated with regard to Bermingham's overall performance that he "meets targets; performed all assigned responsibilities and, accomplished all job objectives since the last review, and made effective contributions to the unit." Id. Bermingham alleges that, as a consequence of this review, he received an eight-thousand dollar salary increase in September 1986. Id., ¶ 64. He also received another "substantial" salary increase one month later and a promotion to Senior Vice President of Sony Tape. Id., ¶¶ 65, 66.

On or about 1 October 1987, Hollands again reviewed Bermingham's employment status. Id., ¶ 67. It is alleged Hollands stated: "Bermingham consistently performs at high levels." Id., ¶ 68. Hollands' review isolated Bermingham's major strengths as interfacing well with customers, other departments and Japan. Id., ¶ 69. Bermingham was also considered to be excellent in dealing with human resource situations and with marketing programs. Id. Hollands concluded that Bermingham's next position "would logically be company or division President." Id. Hollands' 1987 review gave Birmingham the highest rating. Id., ¶ 70. Bermingham's salary was again increased in 1987 and 1988. Id., ¶¶ 71, 72.

Hollands next reviewed Bermingham's employment performance, on 11 November 1988. Id., ¶ 73. Hollands stated: "Overall effectiveness very high; Sales are up; Cost are down; and Profits are up." Id., ¶ 74. Hollands could describe no weaknesses in Bermingham's performance. Id., ¶ 75. It is alleged Hollands also stated: "Within two years he should become a division or company head." Id...

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