United States District Court, District of New Jersey
October 4, 2001
LIZSANDRA MARRERO, PLAINTIFF,
CAMBDEN COUNTY BOARD OF SOCIAL SERVICES, CLEMENT CARNEY, ROBERT ELLIS, SANDRA MAYERS, AND JUNIOUS COLES AND JOHN DOE DECISION MAKERS, DEFENDANTS.
The opinion of the court was delivered by: Joseph E. Irenas, U.S.D.J.
Presently before the Court is the summary judgment motion of Defendants
Camden County Board of Social Services, Clement Carney, Robert Ellis and
Sandra Mayers. Plaintiff Lizsandra Marrero, a former unit clerk in the
income maintenance unit of the Board of Social Services ("the Board"),
asserts several claims relating to the manner in which she was treated
during her tenure with the Board and to the circumstances under which she
was ultimately dismissed from her position. Plaintiff contends that she
was unlawfully subjected to disciplinary action, and was later fired,
because she exercised her constitutionally-protected rights to object to
the conditions of her employment and that her dismissal violated the
provisions of the Family and Medical Leave Act of 1993 ("FMLA"),
29 U.S.C. § 2601, et seq.. Plaintiff also asserts gender
discrimination and retaliation claims under the New Jersey Law Against
Discrimination ("LAD"), N.J.S.A. 10:5-1, et. seq., and claims for
intentional infliction of emotional distress and interference with
prospective economic advantage*fn1. This Court has jurisdiction pursuant
to 28 U.S.C. § 1331, 1367.
Because there remain issues of material fact relating to whether the
actions taken against Plaintiff in response to conduct protected by the
First Amendment and the LAD, and because Plaintiff has offered sufficient
evidence to allow a trier of fact to conclude that the Defendants
violated the notice and certification provisions of the FMLA by refusing
to consider granting her a leave of absence, summary judgment on
Plaintiff's FMLA and retaliation claims will be denied. However, because
Plaintiff has not made the required showing that the actions taken
against her would not have occurred "but for" her gender and because she
has not demonstrated the necessary elements of her tort claims, summary
judgment on those claims will be granted.
In 1978, the Camden County Board of Social Services adopted a formal
dress code policy designed to create a "positive image" for the agency.
This dress code remained in effect throughout Plaintiff's tenure with the
Board, which began in November, 1992 and ended in July, 2000.
Plaintiff's "difficulties at the workplace" began in March, 1997, when
she was first disciplined for failing to adhere to the Board's dress
policy.*fn2 (Am. Compl. at 2). Plaintiff testified at her deposition
that she responded to this action by speaking with a union
representative, who contacted Clement Carney, the Deputy Director of the
Board of Social Services, on Plaintiff's behalf. (Pl. Dep. at 76). On
September 9, 1997, that representative, Rosetta Pitts, directed a letter
to Robert Ellis, the Board's Director, informing him that the union
opposed the disciplinary action taken against Plaintiff. According to
Plaintiff, this letter was the result of a "series of correspondence"
between Pitts, Carney and Sandra Mayers, the Administrator of the Income
Maintenance Unit. On September 16, 1997, Plaintiff was again sent home
because of the way she was dressed. This action was followed by a letter
from Mayers stating that should Plaintiff again run afoul of the dress
code, more serious disciplinary action would follow.
Plaintiff alleges that things "escalated" after the 1997 incidents.
(Am. Compl. at 2). In addition to the "numerous occasions" on which she
was criticized for dressing inappropriately, Plaintiff claims that she
was the subject of inappropriate and harassing comments such as "your
panties are showing", "I can see the print of your privates" and "are you
wearing your daughter's clothes" made by Defendants and others. (Am.
Compl. at 3). In July of 1999, Plaintiff sent Defendants a Tort Claims
Notice, pursuant to N.J.S.A. § 59:8-4, claiming that "several events
occurring over the last two to three years . . . have created a hostile
work environment which has continued to the present date." (Pl. Ex.
PP). Plaintiff also claimed to have been subject to "retaliation" for
reporting an incident of sexual assault
that occurred between her and
Defendant Junious Coles.*fn3 (Id.).
Plaintiff claims that she was again sent home for violating the dress
code on July 21, 1999, the same day that Defendants received and
allegedly discussed Plaintiff's Tort Claims Notice. (Pl. Dep. at 206,
According to Plaintiff, things "got worse for me after I went
to get advice from an attorney," in early 1999. (Pl. Dep. at 207).
Plaintiff stated that during 1999 she was sent home from work more
frequently and that the Board "had people watching over me", which
"result[ed] in . . . being forced to leave work due to an anxiety
reaction." (Pl. Stmt. of Mat. Facts at 18; Pl. Dep. at 207). This leave
was ultimately designated as FMLA leave and lasted six weeks. Upon
returning to work in September, 1999, rather than being reassigned to her
old job as a unit clerk, Plaintiff became a "floater", a position which
she contends was "less desirable." (Am. Compl. at 6). Plaintiff
concedes, however, that this position was equivalent to her former job as
a unit clerk in terms of responsibilities, salary and benefits and that
she was restored to her unit clerk position within two months. (Pl.
Dep. at 189).
On June 1, 2000, Plaintiff filed an action in the Superior Court of New
Jersey, alleging, inter alia, sexual harassment, gender discrimination
and retaliation in violation of the LAD and the First Amendment.
(Defendants later removed the case to this Court.)
On June 26, 2000, Plaintiff was once again called to meet with Mayers
and Carney to discuss alleged dress code violations. Plaintiff testified
that she "got upset" by the demand, left the office and did not return to
work that day. (Pl. Dep. at 187, 188).
The next day, Plaintiff called her supervisor, William Tucker and left
a voice mail message stating that she had suffered an "anxiety attack"
and would need to be placed out on leave. According to Plaintiff, she was
at that time experiencing "nervousness, crying" and an inability to work
"due to a hostile work environment." (Pl. Stmt. of Mat. Facts at 12).
At the time of her call, Plaintiff had apparently already visited her
physician, Dr. Arthur McDermott, who had recommended that she take a leave
of absence. (Pl. Dep. at 169). Plaintiff then called the Board's
personnel department, stated that she had been placed on a "sick leave" by
her doctor and requested that the appropriate forms be sent to her.
(Id. at 172). What happened next is a matter of some contention.
Plaintiff states that Clement Carney got on the phone and "in a very loud
tone of voice" told her that her leave was not accepted and "to get back
to work or . . . be terminated." (Id.). Carney, however, insists that
he simply advised Plaintiff of the proper procedure for requesting sick
leave. (Carney Dep. at 36, 37).
In any case, Plaintiff did not report to work the following week.
Plaintiff states that she did, however, immediately request
a letter from
Dr. McDermott stating the basis for his diagnosis. (Pl. Dep. at
173-174). On July 5, Plaintiff sent a letter to Director Ellis, along
with state disability forms she had received from Dr. McDermott, stating
that she was on sick leave and would like the completed disability forms
returned to her. (Pl. Ex. V).
The forms, however, were never sent back. Instead, Carney sent her a
letter, dated July 7, stating that if Plaintiff wanted to request sick
leave, she needed to follow the procedures outlined in the Board's
employee handbook and the union collective bargaining agreement. In the
interim, the letter stated, she was considered on unauthorized leave and
would be regarded, pursuant to N.J.A.C. 4A2-6.2(b), as having resigned
not in good standing. Although Dr. McDermott ultimately did send a letter
(dated July 18) to the Board confirming his diagnosis, Plaintiff was,
after a disciplinary hearing before Defendant Ellis (which Plaintiff did
not attend), fired on July 28, 2000.
Plaintiff moved, pursuant to Fed.R.Civ.P. 15(a), to add her FMLA claims
to the Complaint and to incorporate the events of June and July into her
existing discrimination and retaliation claims. This request was granted
by the Court on October 20, 2000 and the Amended Complaint was filed on
October 25. The instant Motion for Summary Judgment was filed on August
"[S]ummary judgment is proper `if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine issue as to any
material fact and that 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)).
In deciding a motion for summary judgment, the Court must construe the
facts and inferences in a light most favorable to the non-moving party.
Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir.
1986). The role of the court is not "to weigh the evidence and determine
the truth of the matter, but to determine whether there is a genuine
issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249
(1986). However, "a party opposing a properly supported motion for
summary judgment may not rest upon the mere allegations or denials of his
pleading, but . . . must set forth specific facts showing that there is a
genuine issue for trial." Id. at 248 (citation omitted).
Plaintiff contends that she was suffering from a "serious health
condition" when she left work in June, 2000 and that because her
subsequent absences were protected by the FMLA, the Defendants violated
the Act by discharging her for excessive absenteeism during that period.
Defendants respond that, regardless of whether her absence was protected
by the FMLA, Plaintiff had an "independent" obligation to comply with the
Board's own sick leave notification procedures and that her failure to do
so constituted a "legitimate non-discriminatory reason for terminating
plaintiff's employment." (Def. Reply at 4).
Congress enacted the Family and Medical Leave Act of 1993 "to balance
the demands of the workplace with the needs of families, to promote the
stability and economic security of families, and to promote national
interests in preserving family integrity." 29 U.S.C. § 2601(b)(1);
29 C.F.R. § 825.101.
The Act entitles eligible employees to twelve
unpaid workweeks of leave during "any 12-month period."
29 U.S.C. § 2612(a)(1). As it concerns this case, the Act provides
leave for an employee suffering from a "serious health condition" that
"makes the employee unable to perform the functions of [his or her]
position," and entitles such employees to reinstatement upon their
return. 29 U.S.C. § 2612 (a)(1)(D), 2614(a).
Courts interpreting the FMLA have recognized that the Act creates two
relatively distinct causes of action. See, e.g., Bachelder v. American
West Airlines, Inc., 2001 WL 883701 (9th Cir. Aug. 8, 2001); Strickland
v. Water Works and Sewer Board of the City of Birmingham, 239 F.3d 1199
(11th Cir. 2001).
First, the FMLA makes it unlawful for an employer "to interfere with,
restrain, or deny the exercise of or the attempt to exercise" any right
provided by the Act. 29 U.S.C. § 2615(a)(1). Claims under this
provision are often referred to as "interference" claims. See
Strickland, 239 F.3d at 1207, fn. 9. In addition, the FMLA prohibits an
employer from "discharg[ing] or in any other manner discriminat[ing]
against any individual for opposing any practice made unlawful by [§
2615]." 29 U.S.C. § 2615(a)(2). Such claims are usually described as
"discrimination" claims. See Strickland, at fn. 9.
The claim asserted by the Plaintiff in this case is properly analyzed
as an interference claim under § 2615(a)(1). The crux of Plaintiff's
claim is that because she was entitled to FMLA leave in June of 2000, the
absences for which she was fired could not lawfully be considered as
grounds for dismissal. Contrary to Defendants' contentions, Plaintiff's
is not a discrimination claim. As the Seventh Circuit has noted:
the question in a discrimination case is whether the
employer treated one employee worse than another on
account of something . . . that a statute makes
irrelevant. . . . A statute such as the FMLA,
however, creates substantive rights. A firm must
honor statutory entitlements; when one employee sues,
the firm may not defend by saying that it treated all
Diaz v. Fort Wayne Foundry Corp., 31 F.3d 711, 712 (7th Cir. 1997). The
issue that Plaintiff has raised is not whether the Board applied its
five-day absence rule fairly to all its employees or whether the Board's
reasons for firing Plaintiff were pretext for retaliating against her
because of her FMLA leave. Instead, the issue is simply whether Marrero
was entitled to FMLA leave in June 2000 and whether she took the
necessary steps to inform the Board that she intended to take that
leave. Defendants' emphasis on the "legitimate, non-discriminatory" basis
for Plaintiff's termination is therefore misplaced, as the Board's
subjective intent is irrelevant to this issue.
Central to the purposes of the FMLA is that its provisions apply even
where the entitlements created by the Act are in excess of those that an
employer would be willing or able to provide on its own.
29 C.F.R. § 825.101; Victorelli v. Shadyside Hospital, 128 F.3d 184,
186 (3d Cir. 1997). To this end, the FMLA states that the rights it
creates "shall not be diminished by any collective bargaining agreement
or any employment benefit program or plan." 29 U.S.C. § 2652(b).
Thus, the Camden County Board of Social Services' sick leave policy, and
any collective bargaining agreements to which it is a party, must be
considered invalid to the extent that they "diminish" the rights created
by the FMLA. Simply put, where an
employer's internal policies conflict
with the provisions of the FMLA, the FMLA controls and an employee need
only comply with the requirements of the Act to invoke its protections.
The Board's 2000 Employee Handbook*fn5
and the contract between the
Board and the Communication Workers of America, Plaintiff's union, state
that an employee must provide a doctor's certificate for any absences in
excess of five consecutive days. However, according to the Department of
Labor's FMLA regulations, where an employee seeks "unforeseeable" medical
leave, an employer who wishes to confirm the employee's condition must
first request a medical certification from the employee and then give the
employee at least 15 calendar days in which to comply.
29 C.F.R. § 825.305. Thus, while the Board is obviously free to
impose a five-day rule for the granting of non-FMLA sick leave, where the
FMLA is implicated, the Board must afford each employee at least fifteen
days in which to provide a requested certification.*fn6
Given that § 825.305 seems to address the same notice issue as does
the Board's sick leave policy, it is difficult to see how, as the Board
contends, their policy does not diminish the protections of the FMLA. It
seems clear that, at least from the perspective of an employee suffering
through an unexpected medical emergency, a policy that provides five
days, rather than fifteen, in which to determine that the condition
necessitates extended FMLA leave, to visit a physician and to provide
documentation of that visit and the condition, clearly "diminishes" the
rights provided by the FMLA.*fn7
The issue, then, is whether the Plaintiff was entitled to FMLA leave
for her condition and whether she complied with the provisions of the
FMLA regarding obtaining that leave. See 29 C.F.R. § 825.303;
Under the FMLA, a "serious health condition" is defined as:
(a) an illness, injury, impairment, or physical or
mental condition that involves:
(1) Inpatient care in a hospital, hospice, or
residential medical care facility including any
period of incapacity . . . or any subsequent
treatment in connection with such inpatient care;
(2) Continuing treatment by a health care provider
[which is defined as]:
(i) a period of incapacity . . . of more than
three consecutive calendar days, and any
subsequent treatment or period of
incapacity . . . that also involves:
(A) treatment two or more times by a health care
provider . . .; or
(B) treatment by a health provider on at least
one which results in a regimen of continuing
treatment under the supervision of a health care
provider. . . .
29 C.F.R. § 825.114. The Defendants do not appear to challenge the
seriousness of the Plaintiff's condition and therefore it is sufficient
for the purposes of this motion to note that there is nothing in the
statute or regulations that prevents Plaintiff's anxiety and depression
from qualifying as a serious condition under the Act. Indeed, the
regulations expressly recognize the seriousness of mental illness under
certain circumstances. See 29 C.F.R. § 825.114(c) ("Mental illness
resulting from stress or allergies may be serious health conditions, but
only if all the conditions of this section are met.").
Under the FMLA, an employee is under no duty to provide any
documentation of her condition unless and until her employer so
requests. 29 C.F.R. § 825.305. If an employer doubts the
seriousness or veracity of an employee's condition, it may request that
the employee provide a certification issued by a health care provider.
29 U.S.C. § 2613. If an employer seeks a certification, it must
provide the employee with "written notice detailing the specific
expectations and obligations of the employee and explaining any
consequences of a failure to meet these obligations."
29 C.F.R. § 825.301(b)(1); Zawadowicz., 99 F. Supp.2d at 527.
Defendants contend that Plaintiff failed to comply with the FMLA
because "Plaintiff was asked to provide information and/or documentation
as to the reason for her absence and abandonment of her position," but
did not do so. (Def. Br. at 31). Although Defendants state that
Plaintiff was only required to submit information "and/or"
documentation, their primary objection seems to be that Plaintiff failed
to provide them with a doctor's note explaining her absence.*fn8
On July 7, 2000, Clement Carney wrote to Plaintiff stating that her
July 5th letter was insufficient and that Plaintiff needed to provide a
written statement from her physician "giving the reasons for [her] sick
leave." This letter told her to return to work immediately, but did not
give her any sort of deadline for the submission of her doctor's
As noted above, if an employee informs her employer that she wishes to
take FMLA leave, her employer must provide
her with "written notice
detailing the specific expectations and obligations of the employee and
explaining any consequences of a failure to meet these obligations" and
giving her at least fifteen days from the date of the notice to comply.
29 C.F.R. § 825.301, 825.305. Further, FMLA leave may not be delayed
or denied because of inadequate notice unless it is clear that the
employee had actual notice of the FMLA's requirements.
29 C.F.R. § 825.304(c). See also, Rager v. Dade Behring, Inc.,
210 F.3d 776
(7th Cir. 2000) ("[An] employer is required to notify the
employee promptly and in writing of the 15 day deadline.").
There is no evidence at this stage that Plaintiff ever received notice
of the date by which she had to provide certification of her condition.
Even if the policies contained in the Board's employee handbook were
sufficient to inform Plaintiff that a doctor's certification would be
required,*fn9 Defendants were required to inform Plaintiff that she had
fifteen days to provide the Board with that certification. This they did
not do. Defendants were also required to post notices relating to FMLA
leave and to include specific information in their employee handbook
informing employees of their "entitlements and obligations" under the
Act. 29 C.F.R. § 825.300, 825.301. This was not done either. (See
Carney Dep. at 20-21). Thus, even without considering the very real
possibility that Plaintiff did, in fact, comply with the fifteen-day
rule, it is clear that there are serious questions of fact relating to
whether Defendants met their FMLA notice obligations to Plaintiff and,
accordingly, whether they were permitted to follow through with
Defendants argue, however, that they were justified in their dismissal
of Plaintiff because the certification ultimately provided by Dr.
McDermott was "deficient since it failed to specify a date for her return
to work, the nature and extent of her alleged disability, an appropriate
diagnosis, and a statement that she was unable to perform the functions
of her position." (Def. Br. at 32). While the regulations do permit an
employer to request all of this information, 29 C.F.R. § 825.306, the
employer need not do so. In any case, it is clear that an employer
cannot request certain, limited information from an employee and then
fire her for not providing further information beyond that specifically
requested. Regardless, termination is not an appropriate response for an
inadequate certification. Section 825.305(d) provides that where an
employer finds a certification incomplete, it must give the employee a
reasonable opportunity to cure any deficiencies.
Finally, the Court notes that while a defendant may defend against an
FMLA charge by arguing that an employee would have been dismissed even
had she not taken FMLA-protected leave, 29 C.F.R. § 825.216(a),
O'Connor v. PCA Family Health Plan, Inc. 200 F.3d 1349 (11th Cir. 2000),
it is clear in this case that Plaintiff was discharged precisely because
of her allegedly-protected absences. As this Court has stated before,
FMLA-protected absences may not even be considered in deciding whether to
terminate an employee for excessive absenteeism. Viereck v. City of
Gloucester City, 961 F. Supp. 703, 708 (D.N.J. 1997) (Irenas, J.).
Accordingly, this defense is not available to Defendants.
To conclude, if Plaintiff's absences were protected by the FMLA, and if
with the notice and certification requirements of the Act,
those absences could not be, as they clearly were, considered as a basis
for Plaintiff's dismissal. As discussed above, there remain a number of
factual issues relating to the sufficiency and propriety of the parties'
actions and those issues, such as whether Plaintiff's June 27 notice was
sufficient to inform the Board that she wished to invoke the FMLA, are
properly resolved by a jury. Accordingly, summary judgment as to the FMLA
allegations contained in Count Six of Plaintiff's Amended Complaint is
Plaintiff also claims that she was subjected to disciplinary action,
was "denied promotions and transfers," and was ultimately dismissed in
retaliation for engaging in activities protected by the First Amendment
of the United States Constitution.
It is well-settled that a public employee may bring a retaliation claim
under 28 U.S.C. § 1983 where she is subjected to disciplinary action
for reasons that infringe on her constitutionally-protected interest in
freedom of speech. Rankin v. McPherson, 483 U.S. 378, 383 (1987);
Feldman v. Philadelphia Housing Authority, 43 F.3d 823, 829 (3d Cir.
1995). While most of the decided cases have dealt with the issue of
retaliatory discharge, the Supreme Court and the Third Circuit have
recognized that any retaliatory conduct "sufficient to deter a person of
ordinary firmness from exercising his First Amendment rights" is
actionable under § 1983. Suppan v. Dadonna, 203 F.3d 228, 235 (3d
Cir. 2000) (recognizing a cause of action for "retaliatory harassment").
See also, Rutan v. Republican Party, 497 U.S. 62, 76 n. 8 ("The First
Amendment . . . protects state employees not only from patronage
dismissals, but also from even an act of retaliation as trivial as
failing to hold a birthday party for a public employee.") (internal
Defendants respond initially to Plaintiff's allegations by arguing that
none of the actions taken against her were "adverse." (Def. Br. at 23,
24). They contend that the Board's enforcement of its dress code
policy, its decision to reassign Plaintiff as a "floater," and its denial
of lateral transfers did not have a negative impact on Plaintiff and the
conditions of her employment. For instance, Defendants comment that the
enforcement of the dress code was not adverse because Plaintiff "was not
demoted, suspended or terminated at that time." (Br. at 5).
Defendants' contentions are misplaced, however, as the scope of adverse
action, for the purpose of a First Amendment retaliation claim, is not
limited to drastic retaliation. As mentioned above, an employment action
is considered adverse, for the purposes of determining unlawful
retaliation, if it is likely to chill "a person of ordinary firmness" in
the exercise of their First Amendment rights. Dadonna, 203 F.3d at 235.
Plaintiff has asserted that, in retaliation for the various claims she
filed against them, Defendants sent her home (without pay) for violating
the dress code, castigated her in front of her co-workers, made derisive
and unprofessional comments and finally dismissed her. It is clear that
these actions, if taken with the intent to retaliate for protected
speech, would be likely to deter the exercise of First Amendment rights.
Thus, in light of the Third Circuit's statement that "it is a question of
fact whether [a] campaign [of harassment] reache[s] the threshold of
actionability under § 1983,"
id., Plaintiff has alleged sufficient
adverse conduct for the purpose of defeating summary judgment.
The Third Circuit has recognized a three-step framework for the
analysis of First Amendment retaliation claims. See Green v.
Philadelphia Housing Authority, 105 F.3d 882, 885 (3d Cir. 1997), Pro v.
Donatucci, 81 F.3d 1283, 1288 (3d Cir. 1996). See also, Pollock v. City
of Ocean City, 968 F. Supp. 187, 191 (D.N.J. 1997) (Irenas, J.). First,
an employee must demonstrate that the activity in question was protected
by the First Amendment. Green at 885; Feldman, 43 F.3d at 829 (citing
Pickering v. Board of Educ., 391 U.S. 563, 568 (1968)). With this done,
the employee must then offer evidence demonstrating a causal connection
between the protected activity and the adverse action taken by the
employer. Mt. Healthy City Sch. Dist. Bd. of Educ. v. Doyle, 429 U.S. 274,
287 (1977). Finally, an employer is given the opportunity to show "by a
preponderance of the evidence that it would have reached the same
decision . . . even in the absence of the protected conduct."
Id.; Suppan, 203 F.3d at 235; Green, 105 F.3d at 885.
The parties appear to agree that Marrero's conduct was protected by the
First Amendment. Defendants state that "it is conceded that plaintiff's
filing of the lawsuit in June of 2000 constituted protected activity" and
do not put forward any arguments relating to the nature of Plaintiffs
earlier claims. (Reply at 6). In any case, this Court has recognized
that, in the Third Circuit at least, the filing of any lawsuit
constitutes protected activity. Pollock, 968 F. Supp. at 191, 192 ("The
First Amendment thus protects a public employee from employer retaliation
for participating in a legal proceeding, either as a party or a
witness."). As noted in Pollock, the Third Circuit's controlling
decision in this area came in San Filippo v. Bongiovanni, 30 F.3d 424 (3d
Cir. 1994). Pollock, at 192. In San Filippo, the Court determined that
special constitutional protection should be accorded to "an employee
lawsuit or grievance if it is of the sort that constitutes a `petition'
within the meaning of the First Amendment." Id. at 441, 442. Clearly,
therefore, the filing of Plaintiff's Tort Claims Notice, which is a
required precursor to her lawsuit, and the ultimate filing of this
lawsuit, constituted protected speech. See Anderson v. Davila,
125 F.3d 148, 162 (3d Cir. 1997) (holding that the "right of access to
court doctrine" applied to plaintiff's sending of notice of intention to
sue prior to filing of formal complaint).
In addition, the 1997 filing of Plaintiff's union grievance is
protected, as the San Filippo court noted that an employer's entry into a
collective bargaining agreement providing a formal grievance procedure is
"one example of formal governmental adoption of a mechanism for redress
of grievances." Id. at 442.*fn10
Because the issue of whether Plaintiff's speech was protected is a
one, the parties properly focus much of their attention
on the issue of whether Plaintiff has offered sufficient evidence to
demonstrate a causal connection between her protected conduct and the
Board's actions against her.
In a case such as this, a sufficient causal connection is demonstrated
where a plaintiff shows that constitutionally protected conduct was a
"substantial" or "motivating" factor in an employer's decision. Mt.
Healthy, 429 U.S. at 287 (citing Village of Arlington Heights v.
Metropolitan Housing Development Corp., 429 U.S. 252, 270-71 (1977));
Suppan, 203 F.3d at 235. However, "under Mt. Healthy's burden-shifting,
substantial factor/same-decision framework, the plaintiff is not required
to prove `but for' causation." Suppan at 236. Instead, the plaintiff
must only show that the exercise of free speech rights played "some
substantial role" in the employer's decision. Id. Where this is shown,
the burden shifts to the employer to demonstrate that the same decision
would have been made absent the protected conduct, that is, that "the
protected conduct was not the but-for cause." Id.
In deciding a motion for summary judgment, the Court must "view the
facts in the light most favorable to the nonmoving party and draw all
inferences in that party's favor." Armbruster v. Unisys Corp.,
32 F.3d 768, 777 (3d Cir. 1994). The Third Circuit has, in analyzing
retaliation cases under Title VII of the Civil Rights Act of 1964,
recognized that evidence of "temporal proximity" between protected
conduct and adverse action is "an obvious method by which a plaintiff can
proffer circumstantial evidence sufficient to raise the inference that her
protected activity was the likely reason for the adverse action", Kachmar
v. Sungard Data Systems, Inc., 109 F.3d 173, 177 (3d Cir. 1997) (citation
omitted). In Pollock, this Court recognized the strength of such
evidence in establishing causation, emphasizing that the plaintiff's
termination "came only weeks after plaintiff engaged in his protected
conduct. 968 F. Supp. 187, 192 (citing Title VII cases).
Here, Plaintiff discusses three specific incidents the timing of which
she contends establishes the requisite causal connection between
Plaintiff's complaints and Defendants' adverse employment actions.
First, Plaintiff points to the fact that, on September 16, 1997, one week
after her union representative sent a letter to Robert Ellis objecting to
the way Plaintiff had been disciplined for two prior dress code
violations, Plaintiff was sent home for an alleged dress code violation
and a letter from Sandra Mayers threatening further disciplinary action
was sent to her.
Second, as mentioned, Plaintiff alleges that, after the Board received
her 1999 Tort Claims Notice, "things got worse." She alleges (although
the dates she indicates in her brief are neither supported or refuted by
the deposition excerpts given to the Court) that she was sent home for
violating the dress code on July 21, 1999, the very same day that
Defendants received her Tort Claims Notice.
Finally, Plaintiff was again disciplined for dress code violations
three weeks after she filed this lawsuit in June, 2000. As further
evidence, Plaintiff points to the fact that she stopped receiving
performance evaluations in the Fall of 1997, soon after her problems with
Defendants began, and that these evaluations were relevant to her
applications for lateral transfer and promotion. Given this contentious
state of affairs, it seems a reasonable inference that Defendants actions
were motivated by their anger over what they perceived as baseless
claims. However, this evidence
need not be considered in isolation, as
it has been recognized that "it is causation, not temporal
proximity . . . that is an element of plaintiff's . . . case."
Farrell v. Planter's Lifesavers Co., 206 F.3d 271,
281 (3d Cir. 2000).
It has been recognized in the Title VII context that evidence of a
pattern of antagonism between employer and employee is persuasive evidence
of retaliation. See Kachmar 109 F.3d at 177 ("Where there is a lack of
temporal proximity, circumstantial evidence of a pattern of antagonism
following the protected conduct can also give rise to the inference [of
causation]."). In this case, Plaintiff noted that things got worse for
her after the filing of her Tort Claims Notice, as evidenced by the fact
that she needed to take a month's leave of absence due to stress, anxiety
and depression. Further, given the testimony of Plaintiff and others
(see Walker-Rice Dep., Goodwin Dep., Ackley Dep., Tazewell Dep.) of the
selective enforcement of the dress code against Plaintiff, a jury could
reasonably find that a pattern of antagonism existed between Defendants
and Plaintiff and that this was triggered by Plaintiff's complaints.
Finally, the statements and deposition testimony of several of the
Defendants themselves permit an inference of retaliatory motivation.
When Plaintiff reported her grievance to her union representative,
Clement Carney allegedly became angry and shouted "don't even tell me
that I'm singling you out! I'm sick and tired of you dressing in tight
clothes!" This "singling out" comment appears to be a reference to
Plaintiff's union complaint and could lead to an inference that Carney's
subsequent actions were motivated, at least in part, by his anger over
Plaintiff's allegations. Further, Carney and Mayers both testified that
they were "angered" or "bothered" by the filing of Marrero's lawsuit.
This testimony is sufficient, in conjunction with the evidence discussed
above, to lead a finder of fact to the conclusion that a retaliatory
motive played a substantial role in Defendants' decision.
The final issue to be addressed under the Mt. Healthy framework is
whether Defendants have demonstrated that the employment actions taken
against Plaintiff would have occurred even in the absence of protected
conduct. Mt. Healthy at 287. Defendants have attempted to justify their
actions by arguing that they were simply enforcing the Board's neutral
dress code and attendance policies. However, the evidence offered by the
Plaintiff relating to the selectivity with which those policies were
enforced prevents the conclusion, at this juncture, that Defendants'
actions would have been taken absent Plaintiff's protected speech.
As noted, Plaintiff has offered evidence that the Board's dress code
was rarely enforced against anyone else. Further, the fact that
Plaintiff was granted FMLA leave with relative ease in August, 1999
indicates that Defendants had the ability to delay termination
proceedings at their discretion. The policy under which Plaintiff was
terminated states that an employee who is absent from work for five
consecutive days without approval should be considered to have resigned.
N.J.A.C. 4A:2-6.2(b). The provision of the New Jersey Administrative Code
upon which Defendants rely goes on to state that "approval of the absence
shall not be unreasonably denied." Id. Defendants have not offered any
evidence to demonstrate that their actions were consistent with their
prior practices and that, especially given the clear requirements of the
FMLA, approval of Plaintiff's absence was not unreasonably denied.
Therefore, it is concluded that Defendants have not met their burden,
under Mt. Healthy and its progeny, of
showing by a preponderance of the
evidence that their disciplinary actions against Plaintiff would have
occurred absent her protected conduct.
Defendants' final argument is that summary judgment should be granted
as to the Board of Social Services because Plaintiff has failed to
demonstrate any custom or policy of the Board that can provide the basis
for a jury finding of municipal liability under § 1983.
In Monell v. Department of Social Services, the Supreme Court held that
the doctrine of respondeat superior is inapplicable to § 1983 and
that "Congress did not intend municipalities to be held liable unless
action pursuant to official municipal policy caused a constitutional
tort." 436 U.S. 658, 692 (1978). In Pembaur v. City of Cincinnati the
Court noted that "particular officers may have authority to establish
binding county policy respecting particular matters and to adjust that
policy for the county in changing circumstances." 475 U.S. 469, 483
(1986). Accordingly, "an unconstitutional governmental policy could be
inferred from a single decision taken by the highest officials
responsible for setting policy in that area of the government's
business". City of St. Louis v. Praprotnik, 485 U.S. 112, 123 (1988).
The critical inquiry, therefore, is whether any of the Defendants in this
case possessed "final policymaking authority" in the areas at issue. Id.
Although neither party discusses it, the issue of "whether a particular
official has final policymaking authority is a question of state law."
Jett v. Dallas Independent School District, 491 U.S. 701, 737 (1989)
(quoting Praprotnik, 485 U.S. at 123). Thus, the Court must look to the
laws of New Jersey and Camden County to determine which, if any, of the
Defendants possessed final authority with respect to enforcement of the
dress code policy and the termination of employees.
"The identification of those officials whose decisions represent the
official policy of the local governmental unit itself is a legal question
to be resolved by the trial judge before the case is submitted to the
jury." Jett, 491 U.S. at 737. However, once such a determination is
made, "it is for the jury to determine whether their decisions have
caused the deprivation of rights at issue by policies which affirmatively
command that it occur, or by acquiescence in a longstanding practice or
custom which constitutes the standard operating procedure of the local
governmental entity." Id. (citation omitted).
In Andrews v. City of Philadelphia, the Third Circuit found the
Philadelphia Police Commissioner to be a policymaker based on the fact
that he had "promulgated and disseminated" the Departments training
manual relating to the issue of sexual harassment and had issued
bulletins and regulations on the issue. 895 F.2d 1469, 1481 (3d Cir.
1990). In this case, while none of the parties moves beyond bald
conclusory statements in discussing the policymaking authority (or lack
thereof) of any of the Defendants, a consideration of the factors
discussed in Andrews leads to the conclusion that Robert Ellis, as
Director of the Board of Social Services, possessed final authority
regarding the Board's personnel and discipline decisions.*fn11
The Board's dress code policy was originally promulgated by Ellis'
predecessor in office and provides that the ultimate penalty for code
violations should be determined at a "departmental hearing" conducted,
presumably, by the Director. Further, the progressive discipline policy
created by the Camden County Board of Social Services states that "the
decision making process surrounding the imposition of major disciplinary
penalty will always be in consultation with the Director or his
designate." (Def. Br., Ex. 2). While it is unclear from the record who
was responsible for the original issuance of the discipline policy (it
may well have been the Director), the policy does appear to place final
authority in the hands of the Director by granting him ultimate authority
over the decision-making process under the policy and by permitting him
to avoid entirely the terms of the policy entirely in certain cases.
(Id.) While it is true that an employee terminated pursuant to a "major
disciplinary action" has a right to appeal to the New Jersey Board of
Personnel, see N.J. Admin. Code tit. 4A, § 2-2.8 (2001), "minor"
discipline (including, one imagines, discipline for dress code
violations) is left to the policies of the Board and any "negotiated
agreements" to which it is a party, Id. § 2-3.2.
Even if Ellis (or another policymaker) did not make all of the
decisions regarding Plaintiff, municipal liability may still be
appropriate if the Board's policymakers acquiesced in a "custom" which
permitted retaliation against Plaintiff. See Monell at 690. If it is
found that the Defendants' custom of retaliation was so "permanent and
well-settled" as to rise to the level of "a longstanding practice or
custom which constitutes the `standard operating procedure' of the local
government entity", municipal liability may be imposed. Jett, 491 U.S.
at 737. As mentioned, neither party has made much of an effort to
discuss the factual or legal merits of the municipal liability issue and
the factual record in this regard is extremely thin. Accordingly, summary
judgment at this point would be premature.
Because plaintiff has offered evidence sufficient to permit a
conclusion that the disciplinary actions taken against her were in
retaliation for her exercise of rights protected by the First Amendment,
Defendants' motion for summary judgment on the § 1983 claims
contained in Counts Two and Six of Plaintiff's Amended Complaint will be
Related to Plaintiff's § 1983 claim is her claim that the adverse
actions against her were taken in violation of the anti-retaliation
provisions of the New Jersey Law Against Discrimination, N.J.S.A.
The retaliation provision of the LAD states that it is an unlawful
employment practice for "any person to take reprisals against any person
because he has opposed any practices or acts forbidden under this act or
because he has filed a complaint. . . ." Id. To state a claim for
retaliation under this provision, a plaintiff must show that: (1) he or
she engaged in protected conduct known to the defendant; (2) he or she
was subjected to an adverse employment decision; and (3) there was a
"causal link" between the protected activity
and the adverse decision.
Shepherd v. Hunterdon Development Center, 336 A.2d 217, 229-230
(N.J.Super. Ct. App. Div. 2001); Romano v. Brown & Williamson Tobacco
Corp., 665 A.2d 1139 (N.J.Super. Ct. App. Div. 1995). See also, Ferraro
v. Bell Atlantic Co., Inc., 2 F. Supp.2d 577 (D.N.J. 1998); Lombardi v.
Cosgrove, 7 F. Supp.2d 481, 498 (D.N.J. 1997). Once these factors are
established, the burden shifts to the defendant to articulate a
"legitimate, non-retaliatory reason for the action." Shepherd,
336 A.2d 217, 230. If such a reason is offered (and it usually is, as
the defendant's burden at this stage is "relatively light"), the
Plaintiff must then demonstrate that a retaliatory intent motivated the
defendants. Id. This can be done either "directly" by showing that a
discriminatory reason more likely than not motivated the decision or
"indirectly" through evidence that the proffered reason is pretextual.
As this Court has noted, this burden-shifting approach is virtually
identical to that employed for federal claims under Title VII. Ferraro,
2 F. Supp.2d at 587 (noting that the analytical framework of Title VII
and the burden-shifting approach of McDonnell-Douglas Corp. v. Green,
411 U.S. 792, apply to retaliation claims under the LAD). See also,
Farrell v. Planters Lifesavers Co., 206 F.3d at 279; Kachmar, 109 F.3d at
177; Krouse v. American Sterilizer Co., 126 F.3d 494, 500 (3d Cir.
1997); Grigoletti v. Ortho Pharmaceutical Corp., 570 A.2d 903, 906-907
(N.J. 1990) ("In outlining approaches and infusing discrimination claims
under the LAD with substantive content, we have adopted the Supreme
Court's analysis of unlawful discrimination claims brought under Title
VII of the Civil Rights Act of 1964.").
There is no question that Plaintiff has satisfied the first two
elements of her claim. First, the conduct alleged by Marrero, if
proven, violated the Law Against Discrimination. In Drinkwater v. Union
Carbide Corp., the Third Circuit recognized that it is the plaintiff's
belief, not the merits of her claim, that determines whether an
employee's conduct is protected. 904 F.2d 853, 866 (3d Cir. 1990)
(dismissing LAD discrimination claim, but allowing retaliation claim on
the basis that "UC is not free to retaliate against plaintiff simply
because she has failed to build her sex discrimination claim
Second, although the definition of "adverse employment action" under
the LAD and Title VII differs from the broader definition applicable to
First Amendment claims, it is clear that Plaintiff's discharge satisfies
the adversity requirement. In order to constitute "adverse employment
action" for the purposes of the LAD, "retaliatory conduct must affect
adversely the terms, conditions, or privileges of the plaintiff's
employment or limit, segregate or classify the plaintiff in a way which
would tend to deprive her of employment opportunities or otherwise affect
her status as an employee." Hurley v. Atlantic City Police Department,
1998 WL 351781, No. CIV. A. 96-4928(JEI), at *12 (D.N.J. May 28, 1998).
See also Robinson v. City of Pittsburgh, 120 F.3d 1286, 1300 (3d Cir.
1997) ("Retaliation must be serious and tangible enough to alter an
employee's compensation, terms, conditions or privileges of
employment . . . [to] constitute adverse employment action."). While
termination is the most obvious example of adverse employment action,
"less flagrant reprisals by employers may . . . be adverse."
Hurley, 1998 WL 351781, at 12 (quoting Wannamaker v.
Columbian Rope Co., 108 F.3d 462, 466 (2d Cir. 1997)). See also,
Shepherd 765 A.2d at 230 ("In some situations, it is possible for
retaliatory harassment to amount to adverse employment
this case, Plaintiff's dress code-related allegations go beyond mild
harassment of the kind at issue in Shepherd and involve tangible
employment actions which cost her several days pay and, if her
testimony is believed, lead to her being forced to take a month's
unpaid sick leave. Thus, the Defendants' conduct in disciplining
Plaintiff for her alleged dress code violations is, taking
Plaintiff's allegations in the light most favorable to her, also
sufficiently adverse to satisfy the second element of a cause of
action for retaliation under the LAD.
As to the causation element, Defendants correctly point out that the
Third Circuit has stated that "the mere fact that adverse employment
action occurs after a complaint will ordinarily be insufficient to
satisfy the plaintiff's burden of demonstrating a causal link between the
two events." Krouse v. American Sterilizer, 126 F.3d 494, 503 (3d Cir.
1997) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286 (3d Cir.
1997). This statement does not, however, establish the proposition,
asserted by Defendants, that "timing alone is insufficient to demonstrate
causation." In Krouse, the Court went on to note that timing alone,
while not always sufficient to establish causation, may do so where the
timing of an employer's retaliation is "unusually suggestive" of
retaliatory motive. Krouse, 126 F.3d 494, 503 (rejecting claim because 19
months had passed between plaintiff's EEOC complaint and discharge). See
also, Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir. 1989) (holding
that discharge of Plaintiff two days after receipt of notice of EEOC
complaint established causal connection for purposes of defeating summary
While the timeline evidence in this case may, in fact, be "unusually
suggestive" of a retaliatory motive, such a finding need not be made, as
"case law has clearly allowed a plaintiff to substantiate a causal
connection for purposes of the prima facie case through other types of
circumstantial evidence." Farrell, 206 F.3d at 281. As the Court in
Farrell noted, the "it is causation, not temporal proximity or evidence
of antagonism that is an element of plaintiff's . . . case." Id.
While Defendants quote the language above to support their
contentions, the fact is that Kachmar and Farrell made it easier, not
more difficult, for a plaintiff to satisfy the causation requirement of a
statutory retaliation claim. In deciding the issue of causation, a court
must examine all of the evidence offered by a party, not just those
pieces that relate to temporal proximity or patterns of antagonism. As
the Third Circuit noted in Andrews v. City of Philadelphia, "a play
cannot be understood on the basis of some of its scenes, but only on its
entire performance, and similarly, a discrimination analysis must
concentrate not on individual incidents, but on the overall scenario."
895 F.2d 1469, 1484 (3d Cir. 1990). That said, the evidence in this
case, as discussed above, is sufficient, even under the more stringent
Title VII/LAD causation analysis, to permit an inference of a retaliatory
motive on the part of Defendants.
With Plaintiff's prima facie case established, the burden shifts to the
Defendants to offer a legitimate, non-retaliatory explanation for their
actions. Once such a reason is offered, the Plaintiff must then show
that the offered reasons are pretextual.
The Board contends that it simply enforced its "long-standing" dress
code policy against Plaintiff and then fired her for violating its
statutorily-authorized excessive absence policy. (Def. Br. at 14, 19).
This statement is sufficient, as Plaintiff recognizes, to satisfy the
Defendants' burden under McDonnell Douglas. Accordingly, Plaintiff must
that either 1) "casts sufficient doubt upon each of the
legitimate reasons proffered by the defendant so that a fact finder could
reasonably conclude that each reason was fabrication"; or 2) "allows the
fact finder to infer that discrimination was more likely than not a
motivating or determinative cause of the adverse employment action."
Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1067 (3d Cir.
1996) (citing Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994)).
Under Fuentes, a plaintiff's evidence casts sufficient doubt on a
defendant's articulated justifications where it demonstrates "such
weaknesses, implausibilities, inconsistencies, incoherencies or
contradictions in the employer's proffered legitimate reasons for its
action that a reasonable factfinder could rationally find them unworthy
of credence." 32 F.3d at 765 (internal quotation omitted). While the
inconsistency of the Board's enforcement of its own internal policies
might create some question as to the veracity of its proffered
reasons*fn12, the issue need not be discussed in depth, as
Plaintiff's evidence possesses enough probative force on its own to
allow a reasonable factfinder to conclude that Defendants'
motivations were discriminatory. Thus, Plaintiff has satisfied the
demands of the second prong of the Fuentes analysis.
Fuentes' second prong is met where a plaintiff "point[s] to evidence
that proves . . . discrimination in the same way that critical facts are
generally proved — based solely on the natural probative force of
the evidence." Keller v. ORIX Credit Alliance, 130 F.3d 1101, 1111 (3d
Cir. 1997). As mentioned above, Plaintiff has offered direct evidence of
Defendants' animosity towards her and the pattern of antagonism that
appears to have resulted from it, and has demonstrated a number of
temporal relationships that would allow a jury to connect that animosity
and antagonism to her protected conduct. This evidence, which was
sufficient to allow a conclusion that Plaintiff's protected speech might
have been a substantial or motivating factor in Defendants' decisions, is
also sufficient to permit a reasonable jury to conclude that Defendants'
discriminatory motives were a motivating or determinative cause of their
actions and that their asserted nondiscriminatory justifications are
Accordingly, Defendants' Motion for Summary Judgment as to Plaintiff's
LAD retaliations claims (contained in Counts Two and Six of the Amended
Complaint) is denied.
Plaintiff claims "gender-based discrimination as a result of the
application of the dress code policy pre-dating plaintiff's
termination."*fn14 (Pl. Br. at 39). Under the LAD, an
employer may not discriminate on the basis of sex in the "terms,
conditions or privileges of employment". N.J.S.A. 10:5-12(a)
(West Supp. 2001). Since Plaintiff alleges that Defendants'
asserted justifications are pretext, her claim should be analyzed
under the burden-shifting approach of McDonnell Douglas
and Texas Department of Community Affairs v. Burdine,
450 U.S. 248, 253 & n. 6 (1981). Assuming that Plaintiff has
satisfied the elements of her prima facie case and that Defendants
have articulated a non-discriminatory basis for their actions, the
inquiry becomes whether the evidence would allow a fact finder to
conclude that "but for" Plaintiff's gender, adverse action would not
have been taken. Fuentes, 32 F.3d at 764 (citing Hazen Paper Co. v.
Biggins, 507 U.S. 604 (1993)). Because Plaintiff's evidence cannot
support an inference that she was disciplined under the dress code
policy because she is a woman, summary judgment is appropriate.
As the Third Circuit has stated, the heart of any discrimination claim
is "always whether the employer is treating some people less favorably
than others because of their race, color, religion, sex or national
origin." Pavirotto v. Innovative Systems, Inc., 191 F.3d 344, 352 (3d
Cir. 1999) (quoting International Bhd. Of Teamsters v. United States,
431 U.S. 324, 335 n. 15 (1977)). Here, while Plaintiff has demonstrated
that she was treated less favorably than others, there is virtually no
evidence that this had anything to do with the fact that she is a woman.
Plaintiff states that "the problem with the defendants' dress code is
that it's too subjective and not fairly applied across the board." (Pl.
Br. at 40). While this may in fact be true, the unfair application of an
employer's policy does not rise to the level of actionable gender
discrimination unless that unfairness is related to gender. See, e.g.,
Bellisimo v. Westinghouse Electric Corp., 764 F.3d 175, 181 (3d Cir.
1985) ("Dress codes are permissible under Title VII as long as
they . . . are enforced evenhandedly between men and women. . . ."). In
this case there is simply no evidence that Defendants discipline of
Plaintiff was related to her sex.
The same evidence upon which Plaintiff relies for her retaliation
claims, that other women dressed "virtually the same" yet were not
disciplined (Pl. Br. at 36), undermines her contention that gender was a
motivating factor in Defendants' decisionmaking. While Plaintiff cites
the deposition testimony of several of her female co-workers as evidence
for her claims, a review of this testimony reveals that the primary
objections of Plaintiff and her co-workers were that Plaintiff alone, and
no one else, male or female, was targeted for
enforcement of the dress
code. (See 1/15/98 Pl. Ltr. To Dir. Ellis; Walker-Rice Dep. at 12;
Tazewell Dep. at 76:23-35).
Much of the evidence provided by Plaintiff focuses on the fact that
most of the Board's own discussions of the dress code policy focused on
the policy for women while ignoring the issue of men's attire. This
evidence, without more, does little to bolster Plaintiff's case. As
noted in Bellissimo (the only case that Plaintiff cites to support her
position), dress code standards may differ for men and women without
violating Title VII. 764 F.2d at 181. Given that, as Plaintiff's
witnesses testified, women's fashions seem to change much more rapidly
than men's, very little can be concluded about Defendants' motivations
from the fact that the dress code committee paid more attention to
women's clothing than to men's when revising their policy.
Finally, it should be noted that the evidence in this case does
indicate that the dress code was, on occasion, enforced against male
employees. As noted by the Third Circuit, because "Title VII [and the
LAD] prohibit only discrimination . . . consideration of the practices of
an employer toward the plaintiff must be evaluated in light of its
practices toward the allegedly more favored group, in this case males."
Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509, 527 (3d Cir.
1993). Although such evidence is scant as it is clear that enforcement of
the policy was rarity for both men and women, Clement Carney stated that
he could recall two instances of dress code enforcement against employees
other than Plaintiff: one involving Craig Lucas, a male employee, and one
against a female employee named Tally. (Carney Dep. at 67). While this
evidence, on its own, does not carry much weight, it is simply a further
indication that Plaintiff has not met her burden of demonstrating that
gender was a motivating factor in the Defendants' decisions.
As a number of courts have recognized, an employer has a valid interest
in regulating the image that its employees present to the public. See
Bellissimo, at 181; Fagan v. National Cash Register Co., 481 F.2d 1115,
1124-25 (D.C.Cir. 1973) ("We may take judicial notice of an employer's
proper desire to achieve favorable acceptance [of its public image].").
While an employer certainly may not treat women less favorably than men
through its dress policies, and while the selective enforcement of such
policies against a single employee may be unlawful in certain cases (such
as where retaliation is involved), the mere fact that an employer's
policy is enforced against a single female employee does not, without more
evidence of causation than has been shown here, create a genuine issue of
material fact sufficient to survive summary judgment. As the New Jersey
Supreme Court has held, "common sense dictates that there is no LAD
violation if the same conduct would have occurred regardless of the
plaintiff's sex." Lehmann v. Toys `R' Us, Inc., 132 N.J. 587, 604
(1993). Because Plaintiff has not met her burden of showing that there is
an issue of material fact relating to whether she was targeted by
Defendants for discipline because of her gender, summary judgment as to
Plaintiff's gender discrimination claims (contained in Count One of the
Amended Complaint) will be granted.
The final claim that must be addressed is that Defendants committed the
torts of intentional interference with prospective economic advantage and
intentional infliction of emotional distress.
Under New Jersey law, it is a "fundamental" element of a claim for
intentional interference with prospective economic advantage that the
claim be directed against defendants who are not parties to the
underlying contractual or economic relationship. Printing
Mart-Morristown v. Sharp Electronics Corp., 563 A.2d 31 37 (N.J. 1989).
Therefore, as to the Board of Social Services itself, because it is
clearly a party to the employment relationship with its employees,
Plaintiff's claim is barred.
Defendants argue that because Defendants Ellis, Carney and Mayers were
employees of the Board, Plaintiff's claims against them must be similarly
dismissed. Although the Court agrees with this ultimate conclusion, the
analysis is somewhat more complex than Defendants suggest. As the
Printing Mart Court noted, "the fact that an independent cause of action
for tortious interference cannot exist against [an employer] does not
answer the question of whether employees . . . can be held liable for
tortious interference with a relationship . . . to which [their employer]
was a party." 563 A.2d at 42. The difficulty, the Court noted, is that
while employees are generally not immune from tort liability simply
because they were acting on behalf of their employer at the time of the
alleged tort, such employees do possess tort immunity where they are
"exercising a privilege of the principal". 563 A.2d at 42-43. See
also, Hurley v. Atlantic City Police Department, 1995 WL 854478, at *14
(D.N.J. Aug. 4, 1995) (discussing Printing Mart). As the courts of this
Circuit, including this one, have recognized, only when an employee
asserts that a supervisor was acting "outside the scope of his employment
and/or for his own personal gain" may the employee go forward with a
claim for tortious interference. Horvath v. Rimtec Corporation,
102 F. Supp.2d 219, 236 (D.N.J. 2000) (citing DeJoy v. Comcast Cable
Comm., Inc., 941 F. Supp. 468, 478 (D.N.J. 1996)). See also, Emerson
Radio Corp. v. Orion Sales, 253 F.3d 159, 173 (3d Cir. 2001) ("Acts
committed by an agent outside the scope of employment or agency may
satisfy the `tripartite relationship' required for a tortious
interference claim."); Varrallo v. Hammond Incorporated, 94 F.3d 842, 849
n. 11 (3d Cir. 1996) ("An employee who acts for personal motives, out of
malice, beyond his authority, or otherwise not `in good faith in the
corporate interest' falls outside the scope of the privilege.");
F.D.I.C. v. Bathgate, 27 F.3d 850, 875 (3d Cir. 1994); Fioriglio v. City
of Atlantic City, 996 F. Supp. 379, 392 (D.N.J. 1998); Obendorfer v.
Gitano Group, Inc., 838 F. Supp. 950, 956 (D.N.J. 1993). Accordingly,
the issue that must be decided is whether the Defendants were acting
outside the scope of their employment when they disciplined, and later
Plaintiff has made no specific allegations that Defendants were, at any
time, acting outside the scope of their employment or for their own
personal gain. Although Defendants were allegedly moved by a retaliatory
motive in discharging Plaintiff, they were certainly within the scope of
their respective positions when they acted. Defendants were clearly
exercising the official authority delegated to them by the regulations
and policies of the Board, the County and the State of New Jersey when
they initiated and conducted formal disciplinary proceedings against
Plaintiff. The fact that they were acting with an allegedly improper
motive does not remove their actions from the scope of their employment.
See Emerson, 253 F.3d at 174 (alleged bad faith conduct of corporate
officer was within scope of employment);
Fioriglio, 996 F. Supp. at
392-393 (alleged retaliation not outside scope of employment);
Obendorfer, 838 F. Supp. at 956 (holding that alleged harassment was
within scope of employment).
Furthermore, as this Court noted in Hurley and Fioriglio, the New
Jersey Supreme Court in Printing Mart seemed to believe that a new cause
of action would be required in order for a plaintiff to proceed with a
tortious interference claim against a party's employee. Fioriglio, at
393; Hurley, at *13-14. Such a cause of action has not since been
created and "it is not the role of this court to create new actions under
New Jersey law." Fioriglio at 393 (citing Bathgate, 27 F.3d at 876).
Thus, since Defendants Ellis, Carney and Mayers were acting within the
scope of their employment at all times relevant to this case, Plaintiff's
claims against them for tortious interference with prospective economic
advantage are barred and summary judgment will be granted.
In addition, Plaintiff alleges that Defendants' actions constituted
intentional infliction of emotional distress. To prevail on such a
claim, Plaintiff must prove conduct "so outrageous in character, and so
extreme in degree, as to go beyond all possible bounds of decency, and to
be regarded as atrocious and intolerable in a civilized society."
Buckley v. Trenton Savings Fund Soc., 111 N.J. 355, 365-66 (1988)
(adopting Restatement (Second) of Torts). Because Plaintiff has not
alleged conduct that, if proven, would rise to that level, summary
judgment on this claim is proper.
It has been noted that "the limited scope of this tort tolerates many
kinds of unjust, unfair and unkind conduct." Fregara v. Jet Aviation
Business Jets, 764 F. Supp. 940
, 956 (D.N.J. 1991) (citation omitted).
Indeed, the Third Circuit has articulated the general principle that it
is "extremely rare to find conduct in the employment context that will
rise to the level of outrageousness necessary to provide a basis for
recovery for the tort of intentional infliction of emotional distress."
Cox v. Keystone Carbon Co., 861 F.2d 390
, 395 (3d Cir. 1988).
Plaintiff's claim (one imagines, as she does not address the merits of
this issue in her response) is that the Defendants' retaliatory conduct,
combined with what she describes as a pattern of harassment, constituted
extreme and outrageous behavior. However, the mere fact that the
Defendants acted for an improper purpose does not give rise to an
actionable claim. See Restatement (Second) of Torts, § 46, commented
("It is not enough that the defendant acted with an intent which is
tortious or even criminal, or that he has intended to inflict emotional
distress, or even that his conduct has been characterized by
`malice'. . . .").
The courts of this District have recognized that allegations of sexual
harassment, discrimination, or improperly motivated discharge, cannot
alone provide the basis for an intentional infliction of emotional
distress claim. Horvath v. Rimtec Corp., 2000 WL 1030357, No. CIV. A.
99-670(JEI), at *8 (D.N.J. July 19, 2000); Ferraro v. Bell Atlantic Co.,
Inc., 2 F. Supp.2d 577, 589 (D.N.J. 1998); Borecki v. Eastern Int'l
Management Corp., 694 F. Supp. 47, 62 (D.N.J. 1988). Thus, to prevail on
a claim for intentional infliction of emotional distress, a plaintiff
must show that a number of factors operated to create an intolerable
working environment. While Plaintiff has attempted to do this, alleging
gender discrimination, sexual harassment and retaliatory discharge, given
her failure to demonstrate intentional
discrimination and her express
assertions that she is not claiming sexual harassment (she alleges very
few specific instances of harassing conduct in any case), her allegations
of retaliation and animosity are not enough.
A comparison of this case with others that have been decided by this
Court and others in New Jersey and the Third Circuit reveals the
shortcomings of Plaintiff's claim. For instance, in Ferraro, this Court
found that plaintiff's claims of sexual harassment, discrimination,
name-calling and physical intimidation did not establish a claim for
intentional infliction of emotional distress. 2 F. Supp.2d at 589. In
so ruling, it was noted that while the plaintiff was treated in a
"rude", "unprofessional" and "unacceptable" manner, she nevertheless did
not have a valid claim as such conduct "does not rise to the level of
outrageousness necessary." Id. Similarly, in Hurley v. Atlantic City
Police Dep't., the Court determined that sexual harassment of the
plaintiff by her supervisors and retaliation against her for the filing of
complaints was not "extreme and outrageous", even where these actions
contributed to a `very vicious" and "dangerous" workplace. 1995 WL
854478, No. CIV. A. 930260(JEI), CIV. A. 94-1122(JEI), at *12 (D.N.J.
Aug. 4, 1995). In Hurley, it was noted that "petty vindictive behavior"
(which appropriately describes the behavior Plaintiff has alleged in this
case) cannot support an intentional infliction of emotional distress
claim. Id. (citing Zamboni v. Stamler, 847 F.2d 73, 80 (3d Cir. 1988)).
See also, Mosley v. Delaware River Port Authority, 2000 WL 1534743, No.
CIV. 99-4147(JBS) (D.N.J. Aug. 7, 2000) (falsification of information by
supervisor in order to get plaintiff fired insufficient to support
claim); Fregara, 764 F. Supp. at 956 (intentional interference claim
dismissed where plaintiff threatened with discharge, asked to resign,
overworked, required to attend counseling sessions, told he was not doing
a good job, given warning notices and closely monitored); Aquino v.
Summer Maid Creamery, Inc., 657 F. Supp. 208, 211 (E.D.Pa. 1987)
(plaintiff did not state valid claim despite harassment, beratement and
oversupervision of female employee, along with male supervisor following
her into women's bathroom).
In contrast to these cases (and Plaintiff's case) stands the New Jersey
Supreme Court's recent decision in Taylor v. Metzger, 706 A.2d 685 (N.J.
1998), a case which illustrates the level to which an employer's conduct
must rise in order to give rise to an intentional infliction of emotional
distress claim. In Taylor, the New Jersey Supreme Court permitted a
claim of intentional infliction of emotional distress where the
plaintiff's supervisor referred to her as a "jungle bunny" in front of the
Sheriff of Burlington County, who said nothing. In reaching its
decision, the Court noted that "the defendant's remark had an
unambiguously demeaning racial message that a rational factfinder could
conclude was sufficiently severe to contribute materially to the creation
of a hostile work environment." Id. at 691. In this case, Plaintiff has
not demonstrated that a hostile work environment existed, indeed, she has
explicitly denied that she is asserting such a claim. In addition, while
the comment uttered in Taylor was "patently a racist slur, and [was]
ugly, stark and raw in its opprobrious connotation," id., Defendants
conduct here is, if anything, more akin to the "adolescent antics" in
Hurley than to the such terrible epithets. Accordingly, Defendant's
motion for summary judgment as to Plaintiff's claim for intentional
infliction of emotional distress will be granted.
For the reasons set forth above, Defendants' motion for summary
granted in part and denied in part. The Court will issue an