Robinson v. Horizon Blue Cross Blue Shield Newjersey

Decision Date30 July 2015
Docket NumberCivil Action No. 12-2981
CourtU.S. District Court — District of New Jersey

Plaintiff, a short term employee of defendant Horizon Blue Cross-Blue Shield of New Jersey ("Horizon"), filed this action claiming gender (male) and race (African American) discrimination against Horizon and his supervisors. Defendants claim that they terminated Plaintiff because of ongoing performance issues and repeated unprofessional interactions with co-workers and others. Because Plaintiff cannot demonstrate that the reason given for his termination were pretextual, he cannot meet his burden under the McDonnell Douglas framework. Accordingly Defendants' motion for summary judgment is GRANTED.1


Plaintiff,3 an African-American male, was hired by Horizon on August 2, 2010 after working there as an independent contractor. Plaintiff, who graduated from law school but is not licensed to practice in this jurisdiction, represents himself pro se. Def. Statement ¶¶ 6-8.

At Horizon, Plaintiff's title was Vendor Outsourcing Specialist. Id. ¶ 8. In this role, Plaintiff was required to manage the relationship between Horizon and its IT service vendors. Krause Cert., Ex. 8. Ms. White, an African-American female, hired Plaintiff and initially supervised him. Id. ¶ 2. After a departmental reorganization in 2011, Ms. Concannon, a Caucasian female, became Plaintiff's supervisor. Id. ¶ 3; White Decl. ¶ 8.

While at Horizon, Plaintiff was involved in a number of disputes with other Horizon employees and third parties. See Def. Statement ¶¶ 11-15; see, e.g., Krause Cert., Ex. 9. Robinson Dep. at 75:19-77:6, 171:1-3.4 A number of these incidents involved Plaintiff and members of the Sourcing Department, including Deborah Collins, Doug Rasmussen, Susan Berkenbush, and Ms. Meza. Def. Statement ¶ 6. In one incident, on November 9, 2010, Plaintiff had a verbal altercation with Ms. Meza. See Def. Statement ¶ 12. According to Plaintiff, although Ms. Meza yelled at him and he did not raise his voice, Ms. Meza nonetheless complained to her supervisors about the incident. Id. ¶ 12. While Plaintiff did notcontemporaneously claim that Ms. Meza acted with any racial animus, he now claims that "she was feeding into the stereotype of the angry black man." Robinson Dep. at 168:22-169:13. As a result of Ms. Meza's complaints, Plaintiff was directed to leave work on Ms. Berkenbush's desk instead of giving it to the Sourcing Department contract specialists. Def. Statement ¶ 12.

Human Resources often became involved when these issues occurred. For example, in Summer 2011, Ms. Wright-Gibson met with Plaintiff after Plaintiff asked Susan Berkenbush, the Director supervising the Contract Specialists with whom Plaintiff was fighting, "how would you feel if I played the race card?" Pl. Statement of Facts, Ex. 6 at D005418. Plaintiff then met with Ms. Wright-Gibson, an African-American woman who works in Horizon's HR department. Wright-Gibson Decl. ¶¶ 1-4; Def. Statement ¶ 4. During this meeting, Plaintiff told Ms. Wright-Gibson he had not experienced any racism while employed at Horizon and made no mention of gender discrimination. Wright-Gibson Decl. ¶ 4.

Plaintiff admits to performance deficiencies during his short employment with Horizon. For example, Plaintiff failed to properly institute version control for draft contracts. Robinson Dep. at 178:22-180:18, 269:1-4.5 Additionally, Plaintiff often exceeded his responsibilities. Id. at 183:4-8, 269:5-270:1. This led to tension and further hostility between Plaintiff and his co-workers. Id.; Def. Statement ¶ 11, 13, 14. While Plaintiff's 2010 Annual Review was average, Plaintiff's Mid-Year 2011 Review reflected Plaintiff's technical errors and conflicts with employees and vendors. Def. Statement ¶ 16; Krause Cert., Ex. 15.

During Plaintiff's employment, several of his requests to work from home were denied. Horizon's telecommuting policy allowed employees who had worked at Horizon for at least six months and whose performance exceeded expectations to be considered, on a case-by-case basis,to work remotely. Def. Statement ¶ 17. Plaintiff first requested to work from home several days a week when Ms. White was still his supervisor. Id. ¶ 18. This request was denied, but Ms. White permitted Plaintiff to work from home on several occasions. Id. Shortly after Ms. Concannon became Plaintiff's supervisor, Plaintiff again contacted Ms. White to renew his request to work from home. Id. ¶ 22. Ms. White forwarded the request to Ms. Concannon for her input. Id. After not receiving a response during the business day, Plaintiff emailed Ms. Concannon directly. Id. The following day at 8:31 a.m., Ms. White responded, stating that Ms. Concannon had yet to make a decision, but would likely deny the request until Ms. Concannon's transition had "settle[d] down." Krause Cert., Ex. 18. Plaintiff responded eight minutes later, stating that he was seeking "a reasonable timeframe" for Ms. Concannon's decision. Id. At 8:50 a.m., Ms. White responded, again asking Plaintiff to provide time for Ms. Concannon respond to the request. Id. Four minutes later, Plaintiff emailed Ms. White and Ms. Concannon, demanding a meeting with Ms. Concannon. Id. Ms. White responded, yet again requesting that Plaintiff be patient and reminding him that Ms. Concannon and the IT department were still undergoing a transition. Id.

On October 5, 2011, Ms. Concannon denied Plaintiff's request based upon his unfavorable 2011 Mid-Year Review, which Ms. White had prepared, and Ms. Concannon's recent transition to her new position. Krause Cert., Ex. 19; Concannon Dep. 22:22-23; Concannon Decl. ¶ 3.6

On December 8, 2011, Plaintiff was placed on Written Performance Counseling by Ms. Concannon, in consultation with Ms. White and Human Resources. See Krause Cert., Ex. 20; Concannon Dep. at 34:17-20. Ms. Concannon based her decision on Plaintiff's failure to demonstrate improvement with the accountability and communication issues identified in his Mid-Year Review. Krause Cert., Ex. 20. The Written Performance Counseling provided four examples of Plaintiff's performance issues and mandated that he immediately take ownership of his actions and ensure that all communications be professional and comprehensive. Id.

On December 13, 2011, Plaintiff wrote a five-page rebuttal to Ms. Concannon. See Krause Cert., Ex. 22. In this document, Plaintiff invoked procedural due process and the United States Constitution. Id. It also contained a prayer for relief. Id. Human Resources investigated Plaintiff's rebuttal, but found that Plaintiff's placement on Written Performance Counseling was appropriate. Wright-Gibson Decl. ¶ 5.

In mid-December, Plaintiff received his 2011 Annual Review, which was prepared by Ms. White. Def. Statement ¶ 29. Again, Plaintiff received a number of unfavorable reviews. Id. Plaintiff asserts that his negative review was a result of his complaints to Human Resources about being placed on Written Performance Counseling. Id. Shortly thereafter, on December 22, 2011, Plaintiff again complained to Human Resources, this time alleging gender discrimination. Krause Cert., Ex. 24. Plaintiff did not assert any allegations of racial discrimination at that time. Id.

Also on December 22, 2011, Ms. Concannon directed Plaintiff to begin preparing weekly status reports, which they would review the following week. Krause Cert., Ex. 25. Plaintiff again went to Human Resources, questioning whether this requirement was consistent with being placed on Written Performance Counseling. Krause Cert., Ex. 26. On the same day he spokewith Human Resources, Plaintiff sent an email to Ms. White, stating, "I pray I live long enough to show my excellent backhand." Id. Plaintiff claims this was not a physical threat, but instead a reference to a number of tennis conversations Plaintiff had with Ms. White. Def. Statement ¶ 35. When Ms. White forwarded this message to Ms. Concannon, however, Ms. White stated that she "can only guess what he means by this." Krause Cert., Ex. 26. Ms. Conncanon was uncomfortable with Plaintiff's email and forwarded it to Human Resources. Id.

On January 4, 2012, Plaintiff sent a "Complaint for Adverse Treatment / Disparate Treatment . . . Hostile Work Environment / Retaliation" to Human Resources. See Krause Cert., Ex. 27. In the document, Plaintiff claimed Ms. Concannon's December 22, 2011, directive was discriminatory and/or retaliation for Plaintiff's prior complaints to Human Resources. Id. Plaintiff claimed he was being improperly "portrayed as an angry (Black) man" and was subject to gender discrimination. Id. Later that month, Plaintiff met with Santo Barravecchio, another Human Resources employee. Def. Statement. ¶ 39. Plaintiff felt Mr. Barravecchio was "friendly, he was being receptive, nonjudgmental, non-accusatory . . . he was trying to resolve a problem . . . ." Robinson Dep. at 265:6-12. Plaintiff left the meeting "feeling better leaving than entering." Id. at 265:24.

Throughout January and February 2012, Plaintiff continued to meet with Ms. Concannon for performance counseling. Plaintiff challenged Ms. Concannon's criticisms, believed Ms. Concannon was unfit to judge his work, and continued to assert that he had no communication problems. Robinson Dep. at 266:16-268:3. During this time, Plaintiff continued to make additional allegations of unfair treatment, which Human Resources investigated and found to be meritless. Wright-Gibson Decl. ¶ 6.

On February 15, 2011, Plaintiff filed a charge (the "Charge") with the Equal Employment Opportunity Commission ("EEOC") alleging race and gender discrimination beginning on December 8, 2011, the date he received his Written Performance Counseling. Def. Statement ¶ 43. Plaintiff has never amended the Charge nor filed a new...

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