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November 1, 2001


The opinion of the court was delivered by: Alesia, District Judge.


Before the court is defendant Lucent Technologies Inc.'s motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). For the following reasons, the court grants defendant's motion for summary judgment.


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 EEOC claim

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 scheduled.

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 Haywood.

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 it.

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.

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 her managers.

C. Haywood's reassignment into Robert Schulman's application-engineering group and her 1999 year-end review

In late June or early July 1999, Lucent decided to disband the project-engineering group and allow project engineers to find work in any of the groups within Foote's Wireless organization. At that time, Haywood met with Robert Schulman ("Schulman"), a manager in Foote's department to discuss her career options. Based upon Haywood's description of her skills, experiences, and interests, Schulman advised Haywood to join the applications-engineering group.

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 department.

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.

Within Foote's organization at Lucent, the year-end review process consisted of several steps. First, a manager would solicit information from the employee regarding his or her accomplishments during the year. Then the manager would prepare a written review of the employee. Next, the management team consisting of Foote and several managers, would meet to jointly review all employees. During that meeting, each employee would be assigned a performance band from one to six, with one being the best and six being the worst. Foote's organization did not use forced banding, where a specified number of employees were placed in each band so that the banding distribution fit a bell curve. In 1999, all employees in Foote's organization who were in Band 5 or Band 6 were to be placed on performance improvement plans, following a discussion with the employee about his or her performance. Band 6 employees were slated for termination due to poor performance.

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 ...

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