The opinion of the court was delivered by: Alesia, District Judge.
MEMORANDUM OPINION AND ORDER
Cherry Haywood ("Haywood") brought this suit against Lucent
Technologies, Inc. ("Lucent") pursuant to Title VII of the Civil Rights
Act of 1964, 42 U.S.C. § 2000e et seq. ("Title VII"). In Count I,
Haywood alleges that Lucent retaliated against her for filing an EEOC
claim in February 1999 and discriminated against her because of her
race. In Counts II and III, Haywood alleges that Lucent intentionally
inflicted emotional distress upon her. In Count IV, Haywood alleges a
complaint for slander against Lucent.*fn2 In order to understand this
court's opinion, one must be aware of a number of facts. For the sake of
clarity, a recitation of these facts is in four parts. Part A discusses
Haywood's employment history in Lucent's Switching and Access Systems
("SAS") organization and her first EEOC claim. Part B discusses Haywood's
reassignment to Spencer Foote's Wireless organization and her 1999
mid-year review. Part C discusses Haywood's reassignment into Robert
Schulman's*fn3 application-engineering group and her 1999 year-end
review. Part D discusses Haywood's termination, her second EEOC claim,
and her current lawsuit.
A. Haywood's employment history in the SAS organization and her first
Lucent hired Haywood on August 26, 1996. In December 1997, Haywood
began working as a project manager in the SAS organization and reporting
to Steve Smith ("Smith"). Smith's group was part of the AT & T Customer
Business Unit, which was headed by Barbara Lax ("Lax"). Haywood's primary
responsibility was to develop a plan for Y2K problems with Lucent
equipment in AT & T's telephone network. In the spring of 1998, Barbara
Wolf ("Wolf") became Haywood's new supervisor.
In July 1998, Wolf gave Haywood a generally unfavorable mid-year
performance review. Haywood was told that management was not satisfied and
that her performance was not meeting expectations. On July 29, 1998,
Haywood and Wolf met with Smith to discuss Haywood's performance. During
the meeting, Haywood and her managers disagreed about Haywood's
performance. Smith stated that he felt Haywood's work product had not met
expectations. Haywood stated that she felt her job was not sufficiently
defined and that she met all objectives.
On February 11, 1999, Haywood filed a charge of discrimination with the
United States Equal Employment Opportunity Commission ("EEOC"), alleging
that while she was working in Lax's department, she was subjected to
adverse treatment based upon her race in that she was excluded from
department functions, not acknowledged or communicated with, subjected to
constant nitpicking, given an untimely performance review and unclear
objectives, and subjected to racially offensive remarks. Haywood also
alleged that she was harassed and denied promotional opportunities in
retaliation for complaining about race discrimination. On May 28, 1999,
the EEOC dismissed Haywood's EEOC charge, finding insufficient evidence
to support Haywood's claims.
B. Haywood's reassignment to Spencer Foote's Wireless organization and
her 1999 mid-year review
In the Fall of 1998, after Lucent had rendered its findings on
Haywood's internal EO/AA complaint, Haywood contacted Spencer Foote
("Foote"), an African-American who managed a department within Lucent's
Wireless organization, to inquire about opportunities in his group.
Haywood scheduled a meeting with Foote, but then failed to appear as
In December 1998, Haywood again scheduled a meeting with Foote. This
time, Haywood appeared. During her meeting with Foote, Haywood informed
him that she had filed some type of charge against the SAS organization.
Haywood then named as a reference Jim Foster ("Foster"), an
African-American manager who had acted as an informal advisor to
Foote arranged for Haywood to interview with one of his managers, Fred
Krug ("Krug"), who supervised a group called project engineering. During
the interview, Krug explained that as a project engineer, Haywood's
duties would be similar to those she had performed as a project manager,
but that she would be working with engineers to deploy Lucent equipment.
In January 1999, Foote offered Haywood a position as a project engineer,
and Haywood accepted Foote's offer. Krug gave Haywood and all other
project engineers a specific list of nineteen job objectives, and Haywood
spent the first two months of 1999 learning about cellular technology by
reading and attending classes.
On February 1, 1999, Darlene Scott ("Scott") replaced Krug as manager
of the project-engineering group. In March 1999, Scott asked Haywood to
assist another employee in preparing a code of conduct for contractors
providing services to Lucent. Scott found several deficiencies in
Haywood's draft of this document. Haywood informed Scott that she had a
contact in Lucent's legal department who would be able to review and
approve the completed code of conduct. On April 2, 1999, Scott asked
Haywood to attempt to obtain the legal department's approval for the code
of conduct. The legal department
ultimately declined to approve the document.
In April 1999, Haywood was assigned to work as a project engineer
installing a Lucent switch on an AT & T Wireless project in Long Island,
New York. One of Haywood's responsibilities on the Long Island project
was to participate in regular conference calls between the team of
engineers working on the project. Initially, plaintiff was assigned to
work with a more experienced project engineer, Darlene Armenta
("Armenta"). Armenta's role was to help Haywood learn the project
engineer role and to act as Haywood's mentor. In April 1999, Haywood sent
Armenta a lengthy and angry e-mail, attacking her for attempting to usurp
Haywood's role as the project engineer on the Long Island project.
Haywood sent Scott a copy of this e-mail, and Scott told her it was
inappropriate. Later, Haywood sent Armenta an e-mail apologizing for the
harsh tone of her previous e-mail and any misrepresentations she made in
Around June 19, 1999, the first phase of the installation of the Lucent
switch at the AT & T site on Long Island was completed. However, Haywood
remained responsible for providing cost-tracking data for the Long Island
project to her supervisor, completing her own expense vouchers, and
clearing up a number of issues regarding the reporting of her time for
the period from late May 1999 to mid June 1999.
When the time came to conduct midyear performance reviews for the
project engineers, Scott sought advice on how to conduct the reviews from
Melinda Jackson Douglas ("Douglas"), an African-American who was the
department's human resource manager. Scott met with Douglas, who
instructed her to appraise each employee's performance based on his or
her stated job objectives and demonstrated performance using a series of
behavioral characteristics known within Lucent as the GROWS behaviors.
To carry out her mid-year review of Haywood, Scott used the list of
nineteen objectives that Krug previously gave to all project engineers,
including Haywood. Scott asked Haywood and each project engineer to
submit a list of accomplishments on a Form LT-151. The LT-151 listed each
project engineer's nineteen objectives on the left side and provided space
on the right side for the employee to state his or her accomplishments.
In March 1999, Scott met with the project engineers to discuss the
upcoming mid-year review.
On April 23, 1999, Haywood provided a completed Form LT-151 to Scott.
Haywood and Scott then met to discuss Haywood's results. Scott gave
Haywood the opportunity to revise her Form LT-151 before Scott completed
her final mid-year evaluation, but Haywood chose not to revise the form.
Based on the information Haywood provided and her own knowledge of
Haywood's work, Scott assessed Haywood's performance using the GROWS
behaviors as a guide. Scott summarized her assessment on a Form LT-153.
Although it contained both positive and negative feedback, the review was
critical in a number of areas, including that Haywood (1) did not take
personal responsibility for results and usually deflected failure toward
others, (2) received feedback on her behaviors and interaction with team
members that caused concern, (3) was not proactive in providing
information on her project, and (4) met obligations in series sometimes
missing deadlines and not always submitting time reports regularly.
Subsequently, Haywood and Scott met to discuss her mid-year performance
review as reflected on the LT-153.
On June 10, 1999, Haywood met with Foote to explain that she was
unhappy with her mid-year review and to assert her
belief that the feedback was neither constructive nor specific. Haywood
also told Foote that she felt Scott's review was too subjective and
personal and disagreed with Scott's criticism that she was not a team
player. Foote documented his meeting with Haywood in a June 27, 1999
memorandum, and in response to Haywood's request, Foote scheduled a
meeting on June 28, 1999, for Haywood and Foote to meet with Scott and
Douglas to discuss problems with Haywood's mid-year review. Foote agreed
to work to obtain additional specific examples of Haywood's negative
behaviors and to obtain suggestions for more effective behaviors. Foote
explained, however, that the performance review process is inherently
subjective. In preparation for the meeting, Foote asked Scott to prepare
a memorandum giving specific examples of areas where she thought Haywood
could improve her performance and to document any performance concerns
arising since she had prepared the LT-153.
At the meeting on June 28, 1999, Haywood proceeded first, presenting
her objections to the mid-year review and stating her position that Scott
had changed her objectives for purposes of the mid-year review. Scott
then provided the group with copies of a five-page memorandum describing
specific performance problems and supplementing her performance feedback.
The memorandum described problems in three areas: commitments,
communication, and peer interactions. With respect to commitments, the
memorandum described problems Haywood had in meeting deadlines and
expectations, including her failure to provide a timely, complete draft
of the code of conduct, to obtain timely legal review as she had
promised, and to timely prepare materials for a related presentation. With
respect to communication, Scott noted that Haywood failed to provide
information about the guidepost project, failed to update her LT-151, and
failed to communicate with team members on the Long Island project. With
respect to peer interactions, Scott criticized Haywood for her poor
handling of communications with Armenta.
Haywood was angry at Scott's presentation, both because she felt that
she should have been allowed to review Scott's additional feedback prior
to the meeting and because she disagreed with the content of the
feedback. She claimed that Scott's presentation was dishonest and
defamatory and repeatedly interrupted Scott as she tried to present the
contents of her memorandum to the group. Haywood disagreed with the
suggestion that she was not a team player and felt that feedback was too
subjective and personal. She further claimed that Scott was blowing
disputes between Haywood and Armenta out of proportion and favoring
certain peers by highlighting their accomplishments. Haywood also thought
the criteria used to judge her performance had not been previously
disclosed and that the feedback she had received would be detrimental to
her pursuit of other opportunities in the future. Douglas brought the
meeting to a close when it was clear it had ceased to be productive.
Haywood promised to prepare a rebuttal document to contest Scott's
criticisms of her performance, but she never provided that document to
C. Haywood's reassignment into Robert Schulman's application-engineering
group and her 1999 year-end review
In July 1999, Haywood had several conversations with Foote in which she
inquired about options for employment both inside and outside Foote's
group. Foote investigated the possibility of transferring Haywood to
another group, supervised by Foster, who had previously acted as
Haywood's advisor and reference. Foster said he would speak to Haywood
about the possibility of moving into his group. Foote placed Haywood's
reassignment on hold while he contacted Foster about transferring Haywood
to his department. Foote learned from either Haywood or Foster that
Haywood did not wish to move into Foster's department. Haywood contends
she was never advised by Foote or Foster of a job in Foster's
When Haywood ultimately told management that she wanted to move into
Schulman's group, Foote and Schulman met to discuss Haywood. Foote
explained Haywood's concerns regarding her mid-year review and asked
Schulman to consider bringing Haywood into his group. Schulman told Foote
that he wanted to talk with Haywood first. After learning that Haywood
wanted to join his group, Schulman delayed her transfer for about a week
at the end of July because he wanted to meet with Haywood and make sure
she understood that she would be reporting to Schulman for the two
remaining months of the performance year and that much of her year-end
review would be based upon work she had done in her prior organization.
Meanwhile, Haywood left a voicemail for Douglas in which she asked
Douglas to look into the delay in the approval of her transfer from
Scott's group to Schulman's group. Douglas forwarded the voicemail to
Foote, Scott, and Schulman. Schulman felt that the tone and content of
most of the voicemail was inappropriate, particularly Haywood's unfounded
assumption that someone was delaying her transfer. In the first week of
August 1999, Haywood began working in Schulman's group. From the time the
project-engineering group was disbanded until the time she joined
Schulman's group, Haywood continued to receive her regular salary and
benefits. In addition, Haywood continued to work on several assignments
connected with the Long Island project. These included completing and
processing her expense vouchers and gathering cost-tracking data for the
Long Island project. When Haywood transferred into Schulman's group, he
did not know that she had filed an EEOC charge relating to her alleged
treatment in Lax's SAS department. He first learned that Haywood had
filed such a charge when Haywood filed this lawsuit.
In Schulman's applications-engineering group, Haywood was responsible
for understanding the technology she would be working with and was
assigned to head a team called "Costbusters" that was devoted to reducing
expenses for Foote's entire organization. In addition, Haywood had the
general administrative responsibilities of any other employee, including
preparing time sheets, submitting vouchers, and reconciling expenses.
Consistent with departmental practice, Schulman prepared a year-end
review of Haywood's performance. He gathered information from Haywood's
prior managers, including Scott, as well as peers and managers who worked
with Haywood on the Long Island project but who did not directly
supervise Haywood. Many of the people Schulman contacted were ones
Haywood herself had suggested he contact. Scott gave Schulman a prepared
description of Haywood's performance while under her supervision. In his
evaluation, Schulman did not take into account any performance problems
Haywood had in Lax's organization, even though Haywood was in Lax's
organization for part of the performance year. Based on his observations
of Haywood's performance and the feedback he received, Schulman rated
Haywood a "5."
On November 17, 1999, Schulman met with Haywood in Haywood's office to
discuss her year-end review. Schulman had intended the meeting to be
short and simply to give Haywood the review so that she could have time
to review it prior to a formal performance review meeting later that
week. Instead, the meeting lasted approximately half an hour. Haywood
rejected Schulman's offer to meet regarding the review, responding that
"there's nothing that I need to discuss with respect to this document."
Haywood then sent an e-mail describing the meeting to Schulman, Foote,
Scott, Douglas, and her lawyer. Haywood stated in the e-mail that she had
refused to acknowledge receipt of the performance review by signing it
because she invoked her "right not to sign a document in which I do not
agree with its contents." After Haywood received her year-end review from
Schulman but prior to December 2, Foote, Schulman, and Douglas scheduled
a December 7 meeting with the company's legal counsel, James M.
Staulcup, Jr. ("Staulcup"), to discuss appropriate steps to take
regarding Haywood's job performance.
On December 2, 1999, Haywood came to Schulman's office to discuss the
status of an e-mail alias Schulman had asked Haywood to create for the
Costbusters team. Haywood and Schulman have different recollections of
the events in Schulman's office.
According to Haywood, Schulman told her he felt she had not put in the
aggressive work he expected. When Haywood responded that she didn't
understand, Schulman got agitated and said, "Cherry, I think you don't
understand how much stress and pressure I am under here." To that,
Haywood responded, "Well, Bob, you know, I really feel sorry for a person
who allows their moral values and ethics to be compromised if that is how
you feel." Schulman then told her to "get the hell out of his office."
She said, "Excuse me?" He said he wanted her out of his office, and she
was getting his "dander up." Her hand was on the door and she said, "I
just wanted to let you know that the e-mail alias was completed." He told
her he didn't want to ever meet with her again without a third person
present, even though he was her direct manager, and he told her again to
get out of his office. At that point, Schulman rose from his chair, came
over to where she was standing, took
hold of her elbow, and literally pushed her out of his doorway.
According to Schulman, Haywood was upset that he had questioned whether
she was working on the e-mail alias and that he had asked for specific
reasons why such a simple project was not completed. Haywood then made
reference to a discussion she claimed to have had with him in November.
Schulman did not remember that conversation, and Haywood told him that
his problem was that he "didn't recall a lot of stuff when it was
convenient" for him to forget things. Haywood then began to berate
Schulman, stating that he may have been her supervisor but she did not
respect him. She asked him if he thought he was God. The discussion
continued until Schulman told Haywood that the discussion was not
productive. Schulman then told Haywood that he wanted to have a third
party present at any further discussions because he was concerned that
Haywood might misrepresent what he said in private meetings. He then
asked Haywood to leave his office, but she did not. Rather, she stood her
ground, stuck her finger in his face, escalated her tone, and stood toe
to toe with him. He asked her again to leave his office, at which point
he escalated the tone of his voice. He stood up, opened the door to his
office, pointed to it, and asked her to leave.
Following the incident in his office, Schulman sent a memorandum to
Foote with a copy to Haywood documenting the events as he saw them.
Haywood responded by sending her own version of the events. Foote
received and reviewed both versions of the incident. Then, on Monday,
December 6, 1999, Foote sent Haywood an e-mail, stating: "After reviewing
both your account and Bob Schulman's, it is clear that there is
disagreement in portrayal of the facts of this incident and/or the
interpretation of events. As such, it is obvious that it is neither ...