                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


7-11-2008

Bintliff-Ritchie v. Amer Re Ins Co
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-1527




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                                                NOT PRECEDENTIAL


        UNITED STATES COURT OF APPEALS
             FOR THE THIRD CIRCUIT
                  _____________

                      No. 07-1527
                     _____________

             JOANNE BINTLIFF-RITCHIE,

                              Appellant

                              v.

        AMERICAN REINSURANCE COMPANY

                    _______________

      On Appeal from the United States District Court
                for the District of New Jersey
                   (D.C. No. 05-CV-3802)
      District Judge: Honorable Garrett W. Brown, Jr.

                      ____________

        Submitted Under Third Circuit LAR 34.1(a)
                      June 6, 2008


Before: AMBRO, CHAGARES, and COWEN, Circuit Judges.

                   (Filed: July 11, 2008)


               OPINION OF THE COURT
                    ____________
CHAGARES, Circuit Judge.

              This is an employment discrimination action arising under Title VII of the

Civil Rights Act of 1964 (Title VII), as amended, 42 U.S.C. §§ 2000(e) et seq., and under

the New Jersey Law Against Discrimination (NJLAD), N.J. Stat. Ann. §§ 10:5-1 et seq.

Appellant Joanne Bintliff-Ritchie also raises claims for unpaid wages under New Jersey’s

Wage Payment Law, N.J. Stat. Ann. §§ 34:11-4.1 et seq., and for fraud under New Jersey

common law. Bintliff-Ritchie appeals the District Court’s order granting summary

judgment for appellee American Reinsurance Company (Am Re). For the following

reasons, we will affirm.

                                              I.

              As we write only for the parties, our recitation of the facts is brief. In

January 2003, Am Re’s Executive Committee hired Bintliff-Ritchie as Senior Vice

President of Corporate Resources to replace Bob Humes, the former Senior Vice

President of Human Resources. Bintliff-Ritchie’s job responsibilities included running

Am Re’s Human Resources department, corporate communications, and other corporate

functions. She was a member of the company’s Senior Management Group (SMG) with a

starting salary of $215,000 and she participated in the company’s annual Incentive

Compensation Plan (ICP). She reported to Wolfgang Engshuber, Am Re’s Executive




                                              2
Vice-President and President, Corporate Centers.1 After her first six months, Engshuber

recommended that Bintliff-Ritchie receive a $45,000 merit increase, which took effect on

July 7, 2003.

                As part of her 2003 year-end performance review, Bintliff-Ritchie

completed a self-evaluation and rated her performance as “Needs Improvement.”

Engshuber also determined that Bintliff-Ritchie’s 2003 performance did not meet the

company’s expectations and therefore recommended that she receive only 90% of her

target ICP award. Am Re’s ICP awards to SMG members ranged from 0% to 200% of

target. Bintliff-Ritchie was the only SMG member reporting to Engshuber who fell

below target. Another female SMG member received the highest award, which was 47%

higher than Bintliff-Ritchie’s and 6% higher than that of the highest male participant in

the program.

                Am Re terminated Bintliff-Ritchie on May 25, 2004, just before she was

due to receive her ICP award of $112,500.

                                             II.

                We have jurisdiction over this appeal from the District Court’s final

judgment and order pursuant to 28 U.S.C. § 1291. When the District Court grants a




       1
        Engshuber was a member of the Executive Committee that hired Bintliff-Ritchie.
At the time she was hired, Albert J. Beer, Am Re’s Executive Vice-President and
President, Strategic Business Units and John P. Phelan, Am Re’s Chairman and CEO,
were the other two members of the Executive Committee.

                                               3
motion for summary judgment, “we exercise plenary review.” DL Res., Inc. v.

FirstEnergy Solutions Corp., 506 F.3d 209, 216 (3d Cir. 2007). Summary judgment is

appropriate when “‘there is no genuine issue as to any material fact,’” and “‘the moving

party is entitled to a judgment as a matter of law.’” Celotex Corp. v. Catrett, 477 U.S.

317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)). We “resolve all factual doubts and draw

all reasonable inferences in favor of [appellants].” DL Res., Inc., 506 F.3d at 216. We

also have plenary review over the District Court’s dismissal of claims under Rule 12(b)(6)

of the Federal Rules of Civil Procedure. Atkinson v. Lafayette College, 460 F.3d 447,

451 (3d Cir. 2006). In reviewing a dismissal under Rule 12(b)(6), we accept the

allegations in the complaint as true and draw all reasonable inferences in the light most

favorable to the plaintiff. See Evancho v. Fisher, 423 F.3d 347, 350 (3d Cir. 2005).

                                            III.

              Bintliff-Ritchie contends that the District Court erred in concluding that she

had not offered any evidence that Am Re’s reason for her termination – her poor

performance – was pretextual. According to Bintliff-Ritchie, the District Court ignored

the evidence she presented, including the fact that Am Re never told her that she had

performed poorly and there was no mention of her alleged performance failure in her

termination letter. Bintliff-Ritchie argues that Am Re never warned her that her job was

in jeopardy and, in fact, praised and rewarded for her performance. She also asserts that

District Court essentially ignored the evidence of disparate treatment she presented –


                                             4
namely, that Am Re treated its male employees better than it treated Bintliff-Ritchie,

paying male employees higher salaries, giving male employees generous severance

packages, and not terminating or disciplining male employees even when they were

underperforming. We disagree.

              As the District Court observed, we apply the familiar McDonnell Douglas

burden-shifting framework to discrimination claims brought under Title VII and the

NJLAD. McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973); Schurr v. Resorts

Int’l Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999). For purposes of the summary

judgment motion, Am Re conceded that Bintliff-Ritchie had established a prima facie

case of discrimination. The burden then shifted to Am Re to offer evidence “which, taken

as true, would permit the conclusion that there was a nondiscriminatory reason for the

unfavorable employment decision.” Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).

Am Re satisfied its burden by proffering evidence that Bintliff-Ritchie had failed to

perform her job satisfactorily, and the Executive Committee had fired her for that reason.

Indeed, the record includes extensive evidence of Bintliff-Ritchie’s missteps at the

company, including the ill will she created within her department by firing long-time

veterans of the company.

              We must therefore consider whether Bintliff-Ritchie has “point[ed] 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 an invidious


                                             5
discriminatory reason was more likely than not a motivating or determinative cause of the

employer’s action.” Id. at 764. We conclude that she has not provided any such

evidence.

              The District Court correctly determined that Bintliff-Ritchie “failed to meet

her burden of showing that Am[] Re’s explanation for her dismissal was merely a pretext

for discrimination.” Appendix (App.) 22. First, it is noteworthy Bintliff-Ritchie was

hired to replace a male employee. Second, as the District Court observed, the Executive

Committee hired and fired Bintliff-Ritchie and it is unlikely “that a group of individuals

responsible for hiring a member of a protected class would then dismiss her shortly

thereafter on the basis of gender discrimination.” Id. Third, although Am Re omitted any

reference to Bintliff-Ritchie’s poor performance in her termination letter, we do not find

this silence to be persuasive. As the District Court noted, Am Re “may well have been

unwilling to scuttle [Bintliff-Ritchie]’s hopes of future employment in such a way.” Id. at

23. Fourth, the fact that a female SMG member received the biggest ICP award

undermines Bintliff-Ritchie’s contention that the company gave its male employees

preferential treatment.

              Bintliff-Ritchie has failed to introduce “either direct evidence of a purpose

to discriminate, or indirect evidence of that purpose.” Hankins v. Temple Univ. (Health

Sciences Ctr.), 829 F.2d 437, 440-41 (3d Cir. 1987); see also Dillon v. Coles, 746 F.2d

998, 1002-03 (3d Cir. 1984) (noting “that in most employment discrimination cases direct


                                             6
evidence of the employer’s motivation is unavailable or difficult to acquire”). We

conclude therefore that Bintliff-Ritchie has not raised any issues of material fact

necessary to survive a motion for summary judgment.

                                            IV.

              Bintliff-Ritchie also argues that the District Court improperly converted Am

Re’s motion for summary judgment on her wage payment and fraud claims into a motion

to dismiss under Rule 12(b)(6), without notice to the parties. Bintliff-Ritchie alleges that

Am Re acted fraudulently by “induc[ing] her to accept employment” with the company

and assuring her of its support for organizational and personnel changes, “knowing there

would be resistance to those changes.” Appellant Br. at 33-34. With respect to her wage

claim, Bintliff-Ritchie contends that under New Jersey’s Wage Payment Law Am Re

should have paid her the ICP award after her termination. Bintliff-Ritchie asks this Court

to consider whether her termination was “[a] coincidence, or . . . an effort to defraud her

of what she was due[.]” Id. at 33.

              Contrary to Bintliff-Ritchie’s contentions, the District Court properly

dismissed both the fraud and wage claims as a matter of law. The District Court has the

power to dismiss claims sua sponte under Rule 12(b)(6). See, e.g., Bryson v. Brand

Insulations, Inc., 621 F.2d 556, 559 (3d Cir. 1980). In addition, as Am Re correctly notes,

“the standard for surviving a motion to dismiss is more lenient than the summary




                                              7
judgment standard.” Appellee Br. at 46 (citing Seidman v. Minn. Mut. Life Ins., 40 F.

Supp. 2d 590, 596 (E.D. Pa. 1997)).

              Under New Jersey’s Wage Payment Law, employers must pay employees

who are terminated “all wages due not later than the regular payday for the pay period

during which the employee’s termination . . . took place.” N.J. Stat. Ann. § 34:11-4.3.

When employees receive compensation “in part or in full by an incentive system,”

employers must pay “a reasonable approximation of all wages due, until the exact

amounts due can be computed.” Id. As the District Court observed, however, “Bintliff-

Ritchie’s interest in the ICP award had not yet vested under the ICP system” when she

was terminated. Bintliff-Ritchie herself approved rules governing the ICP award system

which provided that employees whom Am Re fired or who quit prior to payment of the

award would forfeit the award, regardless of whether they had completed the performance

period for the award. Because Am Re terminated Bintliff-Ritchie in March 2004, before

paying the 2003 ICP awards, she was ineligible for the award. Accordingly, New

Jersey’s Wage Payment Law does not protect Bintliff-Ritchie’s interests.

              In addition, the District Court properly dismissed Bintliff-Ritchie’s fraud

claim. Bintliff-Ritchie’s complaint asserts generally that Am Re personnel made false

statements which “induc[ed] [her] to accept Am Re’s offer of employment.” App. 40.

These statements, according to Bintliff-Ritchie, “materially misrepresented the presently

existing employment climate at Am Re and the prospects for [her] continued employment



                                             8
at the company.” Id. Rule 9(b), however, requires that “the circumstances constituting

fraud . . . be stated with particularity.” Fed. R. Civ. P. 9(b). We have previously

explained that this requirement may be satisfied by “pleading the ‘date, place or time’ of

the fraud, or through ‘alternative means of injecting precision and some measure of

substantiation into their allegations of fraud.’” Lum v. Bank of America, 361 F.3d 217,

224 (3d Cir. 2004). Bintliff-Ritchie failed to inject any such precision into her complaint

and did not identify either the source or the content of the alleged misrepresentations. Id.

Moreover, although the District Court provided Bintliff-Ritchie with the opportunity to

amend her complaint, she chose not to do so.

                                             V.

              For the foregoing reasons, we will affirm the judgment of the District

Court.




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