Counts I, II, IV. The fourth count alleged a per quod cause of
action on behalf of Roseann Murphy. See Amended Complaint,
Count III. Defendants filed a timely answer to the Amended
Complaint. See Answer (filed Jan. 26, 1998). On August 17,
1998, Defendants filed this motion for summary judgment on all
counts of the Amended Complaint. See Defendants' Notice of
Motion for Summary Judgment (filed Aug. 17, 1998).
In support of their motion for summary judgment, Defendants
contend: (1) that Murphy has failed to make a prima facie case of
unlawful reverse employment discrimination; (2) that Glowacki and
McAvaddy are entitled to the "same actor" defense; and (3) that
Murphy failed to pursue his administrative remedies before the
EEOC, thus rendering his Title VII claim untimely. See Def.
Brief at 7. Defendants further contend that Roseann Murphy's per
quod cause of action must be dismissed, because loss of
consortium damages are not recoverable in employment
discrimination actions brought under Title VII and the NJLAD, and
because Roseann Murphy admitted that she did not suffer any
injuries as a result of the Authority's adverse employment
decisions. See Def. Brief at 15. In opposition to the motion,
Murphy contends that numerous disputes of material fact remain,
precluding this Court from granting Defendants' motion for
summary judgment. See Plaintiff's Brief in Opposition to
Summary Judgment ("Pl.Brief") at 6-14 (filed Aug. 17, 1998).
II. LEGAL STANDARD GOVERNING A MOTION FOR SUMMARY JUDGMENT
A party seeking summary judgment must "show that there is no
genuine issue as to any material fact and that the moving party
is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c);
see, e.g., Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106
S.Ct. 2548, 91 L.Ed.2d 265 (1986); Reitz v. County of Bucks,
125 F.3d 139, 143 (3d Cir. 1997); Hersh v. Allen Prod. Co.,
789 F.2d 230, 232 (3d Cir. 1986). In deciding whether there is a
disputed issue of material fact, the Court must view the
underlying facts and draw all reasonable inferences in favor of
the non-moving party. See, e.g., Pennsylvania Coal Ass'n v.
Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Hancock Indus. v.
Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987).
Under the rule, a movant must be awarded summary judgment on
all properly supported issues identified in its motion, except
those for which the non-moving party has provided evidence to
show that a question of material fact remains. Once the moving
party has properly supported its showing of no triable issue of
fact and of an entitlement to judgment as a matter of law, "its
opponent must do more than simply show that there is some
metaphysical doubt as to material facts." Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct.
1348, 89 L.Ed.2d 538 (1986); see also Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48, 106 S.Ct. 2505, 91 L.Ed.2d 202
(1986) ("By its very terms, this standard provides that the mere
existence of some alleged factual dispute between the parties
will not defeat an otherwise properly supported motion . . .; the
requirement is that there be no genuine issue of material
fact.") (emphasis in original).
What the non-moving party must do is "go beyond the pleadings
and by [its] own affidavits, or by the `depositions, answers to
interrogatories, and admissions on file,' designate `specific
facts showing that there is a genuine issue for trial.'" Celotex
Corp., 477 U.S. at 324, 106 S.Ct. 2548 (quoting Fed.R.Civ.P.
56(e)); see also Lujan v. National Wildlife Fed., 497 U.S. 871,
888, 110 S.Ct. 3177, 111 L.Ed.2d 695 (1990) ("The object of [Rule
56(e)] is not to replace conclusory allegations of the complaint
. . . with conclusory allegations of an affidavit."); Big Apple
BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir.
1992) ("[T]o raise a genuine issue of material fact . . . the
[non-moving party] need not match, item for item, each piece of
evidence proffered by the movant," but rather must exceed the
"`mere scintilla' threshold."), cert. denied, 507 U.S. 912, 113
S.Ct. 1262, 122 L.Ed.2d 659 (1993). If the non-moving party fails
to oppose the motion by written objection, memorandum, affidavits
and other evidence, the Court "will accept as true all material
facts set forth by the moving party with appropriate record
support." Anchorage Assocs. v. Virgin Islands Bd. of
Tax Rev., 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v.
Massey, 873 F.2d 17, 21 (1st Cir. 1989)).
Even where the non-moving party has failed to establish a
triable issue of fact, summary judgment will not be granted
unless "appropriate." Fed.R.Civ.P. 56(e); see Anchorage
Assocs., 922 F.2d at 175. Rule 56(e) of the Federal Rules of
Civil Procedure requires that the case be evaluated on its
merits, with summary judgment being granted for the movant only
if they are entitled to a judgment as a matter of law. See
Anchorage Assocs., 922 F.2d at 175.
A. Unlawful Reverse Employment Discrimination
Murphy alleges claims for unlawful reverse employment
discrimination in violation of Title VII of the Civil Rights Act
of 1964, 42 U.S.C. § 2000e et seq., and the NJLAD, N.J. Stat.
Ann. § 10:5-1 et seq. See Amended Complaint, Counts I, II,
IV.*fn5 The prima facie elements of employment discrimination
are the same for claims under Title VII and the NJLAD.*fn6 See
Erickson v. Marsh & McLennan Co., Inc., 117 N.J. 539, 549,
569 A.2d 793 (1990). In addition, the analytical framework, known as
the shifting burden standard, developed by the United States
Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), applies to both Title
VII and NJLAD claims for employment discrimination. See
Erickson, 117 N.J. at 549, 569 A.2d 793; see also St. Mary's
Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d
407 (1993); Texas Dept. of Community Affairs v. Burdine,
450 U.S. 248, 101 S.Ct. 1089, 67 L.Ed.2d 207 (1981); McDonnell
Douglas, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668)); Ditzel
v. University of Medicine and Dentistry of New Jersey,
962 F. Supp. 595, 603 (D.N.J. 1997) (Walls, J.).
Specifically, Murphy claims that he was treated less favorably
than others similarly situated on the basis of race and sex,
i.e., a disparate treatment, employment discrimination claim.
See Amended Complaint. A disparate treatment violation is made
out when an employee from "a protected group is shown to have
been singled out and treated less favorably than others similarly
situated on the basis of an impermissible criterion. . . ." EEOC
v. Metal Serv. Co., 892 F.2d 341, 347 (3d Cir. 1990). Generally,
in Title VII and NJLAD cases, a prima facie case of employment
discrimination is established when the plaintiff demonstrates:
(1) that he or she is a member of a protected class; (2) that he
or she was qualified for the job; (3) that he or she was
negatively affected by the defendant's employment decisions; and
(4) that he or she was treated less favorably than employees not
within the protected class. See generally, Hicks, 509 U.S. at
506 113 S.Ct. 2742; see also 1 Barbara Lindemann & Paul
Grossman, Employment Discrimination Law at 15 (3d ed. 1996)
(citing McDonnell Douglas Corp., 411 U.S. at 802 n. 13, 93
S.Ct. 1817, and Burdine, 450 U.S. at 253-54 n. 6, 101 S.Ct.
1089) (noting that the factors a district court must consider to
determine if a plaintiff has established a prima facie case are
flexible and must be tailored to the specific factual
circumstances and claims
alleged)). In considering these prima facie elements, "an
`inference of discrimination' arises when an employer fails to
[hire, promote, or otherwise provide equitable compensation to] a
qualified member of a protected class." See Harel v. Rutgers,
The State University, 5 F. Supp.2d 246, 264 (D.N.J. 1998) (Walls,
J.). Courts presume that "these acts, otherwise unexplained, are
more likely than not based on consideration of impermissible
factors." Harel, 5 F. Supp.2d at 264 (quoting Furnco Constr.
Corp. v. Waters, 438 U.S. 567, 577, 98 S.Ct. 2943, 57 L.Ed.2d
In cases involving claims of reverse discrimination, however,
"[n]o such inference . . . arises [because] the employee is a man
or a member of a majority group." Harel, 5. F. Supp.2d at 264
(citing Harding v. Gray, 9 F.3d 150, 153 (D.C.Cir. 1993)).
Title VII and the NJLAD, however, prohibit racial and gender
discrimination against all people, including members of the
majority. See McDonald v. Santa Fe Trail Transp. Co.,
427 U.S. 273, 280, 96 S.Ct. 2574, 49 L.Ed.2d 493 (1976); see also
Erickson, 117 N.J. 539, 569 A.2d 793. "Because invidious
discrimination against [white] males is rare in our society,
there is nothing inherently suspicious in an employer's decision
[which adversely affects such an employee]." Harel, 5 F. Supp.2d
at 264. Thus, given that the prima facie elements established by
the Supreme Court require a plaintiff to be within a "protected
class," to address this "square-peg round-hole problem" raised by
reverse discrimination cases, the first prong of the prima facie
case must be tailored to the specific factual circumstances and
claims of this case. See Daly v. Unicare Corp., 1995 WL 251385,
"Although the Third Circuit has yet to address this issue,
other circuits have modified the first prong of the prima facie
case to require a plaintiff to show additional background
circumstances that support the suspicion that the defendant is
that unusual employer who discriminates against the majority."
Harel, 5 F. Supp.2d at 264 (quoting Parker v. Baltimore & Ohio
R.R. Co., 652 F.2d 1012, 1017 (D.C.Cir. 1981); and citing Duffy
v. Wolle, 123 F.3d 1026, 1037 (8th Cir. 1997); Harding v.
Gray, 9 F.3d 150, 153 (D.C.Cir. 1993); Livingston v. Roadway
Express, Inc., 802 F.2d 1250, 1252 (10th Cir. 1986); Murray v.
Thistledown Racing Club, 770 F.2d 63, 67 (6th Cir. 1985)).
District Courts in this Circuit have adopted the "background
circumstances" standard. Harel, 5 F. Supp.2d at 264; accord
Davis v. Sheraton Society Hill Hotel, 907 F. Supp. 896 (E.D.Pa.
1995); Sanitate v. Securiguard, Inc., 1992 WL 366914
(D.N.J.Sept.30, 1992); Daly v. Unicare Corp., 1995 WL 251385,
at *3-5 (E.D.Pa. 1995) (stating that "[t]he district courts
within this Circuit . . . have largely revised the prima facie
case standard in reverse discrimination suits to require evidence
of `background circumstances'"); see Erickson, 117 N.J. at 549,
569 A.2d 793 (NJLAD case); Bergen Commercial Bank v. Sisler,
307 N.J. Super. 333, 704 A.2d 1017, 1023 (App. Div. 1998) (NJLAD).
In the absence of definitive guidance from the Third Circuit, I
too shall apply the "background circumstances" standard to
Murphy's claims of unlawful reverse employment discrimination.
"In a reverse discrimination case [based on disparate
treatment], a prima facie case is established upon a showing
[(1)] that background circumstances support the suspicion that
the defendant is that unusual employer who discriminates against
the majority; and . . . [(2)] that the employer treated similarly
situated employees differently because of their race [or sex]."
Oakley v. Wianecki, 1998 WL 329266, at *7 (D.N.J. June 18,
1998) (Wolin, J.) (quoting Murray, 770 F.2d at 67) (internal
"[T]he types of `background circumstances' which might support
an inference of [reverse] discrimination [fall] into two
categories: (1) evidence indicating that the particular employer
at issue has some reason or inclination to discriminate
invidiously against [the majority;] and (2) evidence indicating
that there is something `fishy' about the facts of the case at
hand that raises an inference of discrimination." Harel, 5
F. Supp.2d at 265 (quoting Harding, 9 F.3d at 153) (citations
omitted). As noted by Judge Walls in Harel:
In other words, [the plaintiff] may establish a prima
facie case of reverse discrimination
if he can establish either that [the employer] has a
tendency to discriminate against [whites or] men or
that the circumstances surrounding his denial [of the
exception to the personnel policy and/or the denial
of his course request] are sufficiently suspicious to
warrant the conclusion that he was discriminated
against based on his [race or] gender.
5 F. Supp.2d at 265.