The opinion of the court was delivered by: Barry, District Judge.
Defendants International Total Services, Inc. ("ITS") and Dan
Richards ("Richards") (collectively as "defendants") move for
summary judgment. Plaintiff Kristy Lemke ("Lemke" or "plaintiff")
cross-moves for partial summary judgment as to her claims under
the New Jersey Law Against Discrimination ("NJLAD") and Title VII
of the Civil Rights Act of 1964. For the following reasons, this
court will grant defendants' motion and deny plaintiff's motion.
ITS is a company which contracts with airlines to provide
security and other services to airports nationwide. On November
18, 1992, plaintiff was hired by ITS as the General Manager at
Washington National Airport. See Am.Compl. ¶¶ 1-2; Weitzel V.S.
¶ 2.*fn1 In November 1994, she relocated to New Jersey and
became a Continental Airlines Terminal Manager for ITS at Newark
International Airport. See Pl.Dep. at 217, 402-403.
Plaintiff was a Terminal Manager until April 1996 when she
became an acting District Manager. See id. at 219. In 1996, ITS
was organized into three divisions — the Eastern, the Central,
and the Western Divisions. See id. at 241. By May 1996,
plaintiff was the District Manager of the New York Metro Area, a
district within the Eastern Division of ITS. See id. at 219;
Am.Compl. ¶ 3. In 1996, there were four districts in the Eastern
Division: (1) Newark, which was managed by John Pudlak; (2) New
York Metro, which included the airports in New York City, Long
Island, Baltimore, Washington, Atlantic City, Allentown (Pa.),
Boston, Cape seasonal airports and Burlington (Vt.) and was
managed by plaintiff; (3) New York State, including Buffalo,
Syracuse, Rochester, Albany, Elmira, Ithaca, Binghamton, and Erie
(Pa.) managed by Jim Patric; and (4) Southeast, which included
Florida, Georgia, the Carolinas and other southeast states
managed by Peter Collins. See Richards V.S. ¶ 2;*fn2 Reimer
Cert. dated Feb. 3, 1999, Exh. D. Thus, even though plaintiff
remained in Newark after she was promoted to District Manager,
Newark was not within her district and, instead, was managed by
Pudlak. See Richards V.S. ¶ 5.
Toward the end of 1996, Richards became the Eastern Division
President and plaintiff reported to him throughout the remainder
of her employment with ITS. See Pl.Dep. at 200. In early 1997,
Richards decided to realign the geographic districts in the
Eastern Division for a number of reasons: one, districts with
"purer, straight East-to-West lines would be more efficient;"
two, a realignment of the district managers would "make a
stronger business team with more potential for growth;" and,
three, it lacked common sense for plaintiff to be a district
manager based in Newark when Newark was not within her area of
responsibility. See Richards V.S. ¶ 5.
In March 1997, Richards began talking to plaintiff about
possible changes in the territory for which she was responsible.
See Pl.Dep. at 369. For starters, Richards left plaintiff a
voice mail message to the effect of: "I don't know what your
personal situation is and would you be interested in possibly
relocating." See id. at 370. Richards and plaintiff discussed
plaintiff's possible relocation to more of a
Mid-Atlantic/Mid-South district in a phone conversation and
Richards ultimately provided plaintiff with a colorized map of
the geographically reorganized Eastern Division. See id. at
381, 385, 388. The colorized map divided the Eastern Division
into four geographic districts: the Northeastern
states, including New York; New Jersey; the Mid-Atlantic states,
including Pennsylvania; and the Southern states extending to
Florida. See Richards Dep., Exh. 1.*fn3
Richards met with plaintiff at the Boston airport on April 9,
1997 to discuss plaintiff's possible relocation to a site in the
Mid-Atlantic region. See Pl.Dep. at 391. Plaintiff told
Richards that she was not interested in relocating, see id.,
and memorialized the meeting in a memorandum to Richards dated
April 10, 1997. See Reimer Cert. dated Feb. 3, 1999, Exh. B. In
the memorandum, plaintiff expressed her concern that the
reorganization would cause her to lose areas, including the New
York Metro area, which she had worked hard to establish. See
id. Plaintiff also stated that she felt that her territory was
being taken away "because [Richards] want[s] to hire a friend and
give him the largest area and revenue base to support a large
salary." See id. Plaintiff mentioned gender in the memorandum
only insofar as she asserted that she was "well aware of the
number of female managers in the company that are at the same
level that I am, not many." See id.
Plaintiff and Richards met again in Newark on April 18, 1997.
See Pl.Dep. at 419. The parties characterize the meeting
somewhat differently, i.e. plaintiff asserts that she was fired
and defendants assert that she quit, but both sides agree that
during the meeting, Richards reiterated that plaintiff's district
was being eliminated or "downsized." Richards V.S. ¶ 9; Lemke
Aff. ¶ 9; Reimer Aff. dated Feb. 3, 1999, ¶ 14; Pl.Dep. at
426-27. Plaintiff responded by calling Richards "a piece of
work." Lemke Aff. ¶ 9; Richards V.S. ¶ 9. Plaintiff left
Richards' office but shortly thereafter returned and asked
questions about severance pay and money for accrued vacation.
See Lemke Aff. ¶ 9; Richards Aff. ¶ 9; Pl.Dep. at 422-24. After
Richards stated that he would have to look into her questions,
see Pl.Dep. at 429, plaintiff collected her personal
belongings, wished the employees in the building well, and left
the building, never to return. See id. at 430. The ITS Hourly
Transaction Form, dated April 18, 1997 and signed by Richards,
states that plaintiff's last day of employment was April 18, 1997
and the box labeled "Termination" sets forth "Organizational
Downsizing" as the reason. Lemke Aff., Exh. E.
Because Richards needed to immediately submit a budget plan for
the Eastern Division and because plaintiff had rejected the
Mid-Atlantic region, Richards expanded Pudlak's New Jersey
territory to include the Mid-Atlantic states. See Richards V.S.
¶ 11. Thus, when plaintiff left ITS, there were three district
managers: Pudlak, covering New Jersey and the Mid-Atlantic
region; Collins, covering the Southern region; and Brian Michel
who was hired to cover the Northeastern region, including New
York and Boston. See Pl.Dep., Exh. D-25. Not long afterwards,
Michel resigned and Bruce Watson took over the Northeastern
region. On October 2, 1997, plaintiff began working as a
full-time second grade teacher at St. Francis School. See
Pl.Dep. at 99-101.
On August 8, 1997, plaintiff filed a charge of gender
discrimination against ITS with the United States Equal
Employment Opportunity Commission ("EEOC"). See Pl.Dep. at
110-11. On August 22, 1997, plaintiff requested a notice of right
to sue from the EEOC and it was issued on August 28, 1997. See
id. at 118-20 and Exhs. D-11, D-12. Plaintiff simultaneously
filed a charge of gender discrimination with the New Jersey
Division of Civil Rights ("NJDCR"). See Pl.Dep. at 117.
Plaintiff never withdrew the charge filed with the NJDCR and the
NJDCR has yet to issue a determination on her charge of
discrimination. See id. at 117-18.
On November 24, 1997, plaintiff filed with this court a
four-count complaint against ITS and Richards alleging gender
discrimination in violation of NJLAD (Count One), gender
discrimination in violation of Title VII of the Civil Rights Act
of 1964 ("Title VII") (Count Two), and intentional infliction of
emotional distress (Counts Three and Four). On January 4, 1999,
plaintiff amended her complaint and added Count Five, alleging
that defendants violated the Federal Equal Pay Act ("EPA").
Cross-motions for summary judgment followed.*fn4
Summary judgment may be granted if, after consideration of such
items as depositions, affidavits or certifications, and after
viewing the facts in the light most favorable to the non-moving
party, "there is no genuine issue as to any material fact and 
the moving party is entitled to a judgment as a matter of law."
Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317,
322-23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Davis v. Portline
Transportes Maritime Internacional, 16 F.3d 532, 536 n. 3 (3d
Cir. 1994). With this standard in mind, this court will evaluate
each of plaintiff's claims.
A. Gender Discrimination Claims
In Counts One and Two of the complaint, plaintiff alleges that
defendants violated Title VII and NJLAD, respectively, by
discriminating against her on the basis of her gender. Defendants
move for summary judgment because: (1) plaintiff has failed to
exhaust the administrative remedies required to bring a Title VII
claim; (2) plaintiff's NJLAD claim is barred because she has a
charge pending with the NJDCR; (3) plaintiff has failed to set
forth a prima facie case of gender discrimination under Title
VII and NJLAD as she has not shown that she suffered an adverse
employment action; and (4) even assuming a prima facie case
under Title VII and NJLAD, plaintiff has not demonstrated that
defendants' reasons for their actions were pretextual. Plaintiff
not only opposes defendants' motion for summary judgment but
asserts that this is the "very rare" case in which summary
judgment should be granted to a plaintiff on her Title VII and
NJLAD claims. See Pl.Br. at 11.
1. Exhaustion under Title VII
Although plaintiff offers no response to defendants' exhaustion
argument, this court will first address whether plaintiff has
sufficiently exhausted her administrative remedies such that her
Title VII claim is properly before this court. Neither side
disputes that plaintiff must file a charge of discrimination with
the EEOC and receive a notice of right to sue before she can
bring an action in federal court alleging a Title VII violation.
See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 798, 93
S.Ct. 1817, 36 L.Ed.2d 668 (1973) (noting that prerequisites to
filing Title VII civil action are the timely filing of charges of
discrimination with the EEOC as well as receiving the EEOC's
statutory notice of the right to sue).
Plaintiff did, in fact, file a charge with the EEOC on August 8,
1997. The question here is whether plaintiff's notice of right to
sue, requested only fourteen days after the charge was filed and
issued only six days later, was premature given that it bypassed
the 180-day administrative investigation and conciliation process
mandated by Title VII.
Section 706(f)(1) of Title VII, 42 U.S.C. § 2000e-5(f)(1)
(1994), is the statutory provision governing right to sue notices
issued to aggrieved parties and, thus, guides this court's
analysis. It provides that the EEOC shall issue a notice of right
to sue to an aggrieved party if the charge of discrimination
filed with the EEOC is dismissed or 180 days have elapsed without
the EEOC filing a civil action or entering into a conciliation
agreement. See 42 U.S.C. § 2000e-5(f)(1) (1994). Once notified,
the aggrieved party has ninety days within which to initiate a
civil action against the respondent named in the charge. See
The EEOC has been given the power to issue procedural
regulations in order to "carry out the provisions of [Title
VII]." 42 U.S.C. § 2000e-12(a). One such regulation provides that
a notice of right to sue may be issued before the 180-day period
has expired (an "early" right to sue notice). See
29 C.F.R. § 1601.28(a)(2) (1998). Section 1601.28(a)(2) allows the EEOC to
issue an early notice of right to sue "any time prior to the
expiration of 180 days from the date of filing the charge"
provided that an Area Director or other enumerated director
certifies that "it is probable that the Commission will be unable
to complete its administrative processing of the charge within
180 days from the filing of the charge. . . ."*fn5
29 C.F.R. § 1601.28(a)(2) (1998). The EEOC's rationale that regulation was
"the legal principle that a party is not required to perform a
useless act, i.e., wait for the passage of 180 days when the
passage of such time will not accomplish any purpose." Pearce v.
Barry Sable Diamonds, 912 F. Supp. 149, 154 (E.D.Pa. 1996)
(citing to 42 Fed. Reg. 47,828, 47,831 (1977)).
Here, plaintiff filed her charge of discrimination with the
EEOC on August 8, 1997 and requested a right to sue letter on
August 22, 1997 because she wanted to "file a lawsuit in this
matter as quickly as possible." Pl.Dep., Exh. D-11. Pursuant to
29 C.F.R. § 1601.28(a)(1), the Area Director, on behalf of the
EEOC, issued a notice of right to sue on August 28, 1997 — only
20 days after the charge was filed — stating that "[l]ess than
180 days have passed since the filing of this charge, but I have
determined that it is unlikely that the EEOC will be able to
complete its administrative processing within 180 days from the
filing of the charge." Id. at D-12. The EEOC immediately
terminated its processing of the charge, see id., and plaintiff
filed suit in this court on November 24, 1997.
Since September 1977, when 29 C.F.R. § 1601.28(a)(2) was
issued, the validity of the regulation has been called into
question and has been hotly debated in the courts. See, e.g.,
Valerie J. Pacer, Case Comment, The Early Right-To-Sue Letter:
Has the EEOC Exceeded its Authority?
Henschke v. New York Hospital-Cornell Medical Center,
821 F. Supp. 166 (S.D.N.Y. 1993), 72 Wn.U.L.Q. 757, 766 (1994)
(noting the twenty-year split among the courts regarding the
early right to sue letter). Some courts have held that
29 C.F.R. § 1601.28(a)(2) contravenes the procedural requirements of Title
VII and Congress's intention that 180 days is an appropriate
length of time to allow for conciliation of employment disputes
while preserving a claimant's right to speedy relief. See, e.g.,
Montoya v. Valencia County, 872 F. Supp. 904 (D.N.M. 1994);
Henschke v. New York Hospital-Cornell Med. Ctr., 821 F. Supp. 166,
169-71 (S.D.N.Y. 1993); People of State of N.Y. by Abrams
v. Holiday Inns, Inc., 656 F. Supp. 675, 678-80 (W.D.N.Y. 1984);
Mills v. Jefferson Bank E., 559 F. Supp. 34, 34-36 (D.Colo.
1983); Spencer v. Banco Real, S.A., 87 F.R.D. 739 (S.D.N Y
1980); Grimes v. Pitney Bowes, Inc., 480 F. Supp. 1381, 1383-85
(N.D.Ga. 1979). Other courts, including the only two Circuits to
have directly decided this issue,*fn6 have concluded that the
regulation is reasonable, and thus entitled to deference, because
it makes little sense that a claimant must sit idly by for 180
days when the EEOC has certified that it is unable to investigate
the charge within the prescribed time. See, e.g., Sims v. Trus
Joist MacMillan, 22 F.3d 1059 (11th Cir. 1994); Brown v. Puget
Sound Elec., 732 F.2d 726, 729 (9th Cir. 1984), cert. denied,
469 U.S. 1108, 105 S.Ct. 784, 83 L.Ed.2d 778 (1985); Saulsbury
v. Wismer & Becker, Inc., 644 F.2d 1251, 1256-57 (9th Cir.
1980); Bryant v. California Brewers Ass'n, 585 F.2d 421, 425
(9th Cir. 1978), vacated and remanded on other grounds,
444 U.S. 598, 100 S.Ct. 814, 63 L.Ed.2d 55 (1980); Martinez v.
Labelmaster, 1996 WL 580893 (N.D.Ill. Oct.4, 1996); Chandler v.
Fast Lane, Inc., 868 F. Supp. 1138, 1141-42 (E.D.Ark. 1994);
Rolark v. University of Chicago Hospitals, 688 F. Supp. 401
(N.D.Ill. 1988); Cattell v. Bob Frensley Ford, Inc.,
505 F. Supp. 617, 619-22 (M.D.Tenn. 1980).
Perusal of the case law within this Circuit provides little
guidance. Although in dicta expressing disapproval of the
regulation and attempts by claimants to "deliberate[ly] bypass"
administrative remedies, the Court of Appeals for the Third
Circuit declined to reach the issue of the validity of
29 C.F.R. § 1601.28(a)(2) and the effect of early right to sue notices in
Moteles v. University of Pa., 730 F.2d 913, 916-18 (3d Cir.),
cert. denied, 469 U.S. 855, 105 S.Ct. 179, 83 L.Ed.2d 114
(1984). Moreover, district courts within this Circuit have
reached different conclusions. Compare DeFranks v. Court of
Common Pleas of Fayette County, 1995 WL 606800 (W.D.Pa. Aug.17,
1995) (rejecting contention that 29 C.F.R. § 1601.28(a)(2) was
invalid); Anjelino v. New York Times Co., 1993 WL 170209 at *8
n. 8 (D.N.J. May 14, 1993) (refusing to find that Moteles
required dismissal even if the plaintiffs deliberately bypassed
the EEOC administrative process and obtained right to sue letters
pursuant to 29 C.F.R. § 1601.28(a)(2)); Hooks v. RCA Corp.,
620 F. Supp. 1, 1-2 (E.D.Pa. 1984) (finding that right to sue letter
was properly issued by EEOC pursuant to
29 C.F.R. § 1601.28(a)(2)); Bey v. Schneider Sheet Metal, Inc., 596 F. Supp. 319,
323 (W.D.Pa. 1984) (holding that EEOC's issuance of right to
sue letter at plaintiff's request, twenty-seven days after
receipt of the charge, did not deprive court of subject matter
jurisdiction); with Robinson v. Red Rose Communications, Inc.,
1998 WL 221028 (E.D.Pa. May 5, 1998) (holding that, despite
29 C.F.R. § 1601.28(a)(1), plaintiff must wait 180 days to satisfy
the exhaustion of remedies requirement); Krause v. Security
Search & Abstract Co. of Phila., Inc., 1997 WL 528081 (E.D.Pa.
Aug.21, 1997) (same); Pearce v. Barry Sable
Diamonds, 912 F. Supp. 149, 151 (E.D.Pa. 1996) (noting its
inclination to find the regulation invalid). Finally, in 1996,
recognizing the "cacophony" within the courts, a district court
in the Eastern District of Pennsylvania certified questions
concerning the validity of 29 C.F.R. § 1601.28(a)(2) to the Court
of Appeals for the Third Circuit but it appears that no answers
were furnished. See Pearce, 912 F. Supp. at 151.
It is within this morass that this court must address
defendants' contention that summary judgment is warranted on
plaintiff's Title VII claim because plaintiff's right to sue
letter was premature and, thus, that she has failed to properly
exhaust her administrative remedies.
This court is inclined to agree with the disapproving tenor of
the Court of Appeals for the Third Circuit in Moteles and the
various district courts which have held that the EEOC exceeded
its authority in issuing a regulation which allows for early
right to sue letters. While this court must defer to the EEOC's
interpretation of Title VII in its regulations if "reasonable",
EEOC v. Commercial Office Products, Co., 486 U.S. 107, 115, 108
S.Ct. 1666, 100 L.Ed.2d 96 (1988), the EEOC cannot adopt
regulations that are inconsistent with Congress's statutory
mandate. See Mohasco Corp. v. Silver, 447 U.S. 807, 100 S.Ct.
2486, 65 L.Ed.2d 532 (1980).
The regulation providing for early right to sue letters,
especially as applied in this case, contravenes both the
statutory language and the purpose of Title VII. ...