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May 12, 2003


The opinion of the court was delivered by: Stanley S. Brotman, United States District Judge


Plaintiff Laurie Hargrave, an African-American female, instituted this action against Defendant Atlantic County, her former employer, and several of her former supervisors on May 26, 2000, alleging that she was subjected to a racially and sexually hostile work environment and unlawful retaliation in violation of Title VII (Count I) and the New Jersey Law Against Discrimination ("NJLAD") (Count III). Plaintiff also asserts claims under 42 U.S.C. § 1983 based on the alleged violation of rights guaranteed her under the Equal Protection and Due Process Clauses of the Fourteenth Amendment (Count II). The Court has jurisdiction over Plaintiff's federal civil rights claims pursuant to 28 U.S.C. § 1331 and supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367. Presently before the Court are Defendants' motions for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the reasons set forth below, Defendants' motions will be granted in part and denied in part.


Plaintiff Laurie Hargrave, an African-American female, was hired by Defendant Atlantic County in 1986 to work as food service worker in the Dietary Unit of the Meadowview Nursing Home ("Meadowview") in Northfield, New Jersey, a position she occupied until her discharge in August of 2001. (Hargrave Dep. at 12:17-22). Meadowview provides assisted living quarters for the elderly and is operated through the County's Department of Human Services. The facility's Dietary Unit is a "satellite unit" which receives food cooked elsewhere on the premises and arranges it on "steamtables" for distribution to the facility's elderly residents, many of whom have special dietary and nutritional needs. (Id. at 14:2-16:5). The Unit's staff of approximately ten to twelve food service employees work in two shifts, a morning and an afternoon shift, under the direct supervision of a Food Service Manager ("FSM") and, occasionally, an assistant FSM. (Id. at 16:6-16; 18:17-19:7). The precise composition of the Unit's staff varied over the course of Plaintiff's employment, but has generally consisted predominantly of African-American female food service workers and a mostly non-minority staff of managers and supervisors. (Purelli Dep. at 19:25-20:10; Maurer Dep. at 18:8-14; Hopkins Dep. at 21:3-21:6).

Plaintiff's Allegations of Hostile Work Environment Sexual Harassment and Retaliation:
In 1995, Atlantic County hired Defendant Salvatore Martello ("Martello"), a caucasion male with private sector experience in food service management, to fill the position of Food Service Manager. (Martello Dep. at 8:10-10:3). Martello's tenure was, according to Plaintiff, marked almost from the start by inappropriate conduct toward the Unit's female employees. On March 1, 1996, Plaintiff memorialized her complaints about Martello's conduct in a memorandum which she directed to Susan DeMos, the Director of Support Services at the County's Human Services Department, and distributed to various members of the Unit's managerial staff, including Martello himself. (See Memorandum dated March 1, 1996, attached as Ex. D to Def.'s Joint Stmt. of Facts). In her memo, Plaintiff accused Martello of making several offensive and sexually suggestive comments and jokes to her and her female co-workers. The memo specifically identified four statements Martello had allegedly made over a period of approximately five and one-half months. What follows is a series of excerpts from that memorandum:



DATE: MARCH 1, 1996


This memo is to apprise you of the conditions and the environment that we must endure working under the supervision of Sal Martello. Below are various incidents that were either told to me or I have witnessed in regards to the conduct unbecoming a supervisor.
September 14, 1995
Approximately 11:30 or 12:30, Mrs. Wanda Harris came to me and repeated a disgusting comment Sal had made. In the office of the Dietician, Diane Frakas had cooked Sushi. They were tasting it. Sal made the statement that "the Sushi tasted better than a woman he had."
In my presence, during the month of September at 11:00 a.m., an employee entered Sal's office. Sal stated to the employee "You look so good, baby, I could put you on a plate and slop you up with a biscuit."
December 29, 1995
A Friday, at 12:40 I had completed serving lunch and was emptying the steamtable.
Barbara Bennet entered the kitchen and asked for Sal. I told her he was out to lunch. She asked if we (Wayne Leggett and myself) would taste some shrimp because they smelled bad. Wayne went to check on the shrimp. When Sal returned from lunch around 1:30, I informed him that Barbara wanted him to smell and taste some shrimp because they had smelled bad. Sal left. Sal returned within 10 minutes. As I was cleaning off my steam table, washing it down, Sal came in laughing, he stopped right in front of our starting station, and stated (laughing) "Barbara Bennet wanted me to taste shrimp, if anyone knows what fish taste like she should know, she eats more fish than I do."*fn1
February 21, 1996
About 7:00 a.m. Martha McCusker brought to my attention a very degrading and disgusting statement Sal made in her presence. She stated that he said "I always hit that "G" spot." . . .
I'm sure you can appreciate the seriousness of this situation and it is time for a change. No one should have to work under these conditions.
I am requesting a meeting with you and Sal along with my representative to discuss this matter. A suit for sexual harassment has not yet been filed, however, it will depend upon the outcome of this meeting with you.
You immediate attention to this matter will be most appreciated.
(Id.) (emphasis in original). Plaintiff's memo also identified at least two other female employees who had allegedly voiced similar complaints about Martello's "sexual [sic] offensive jokes and statements," though it did not provide any details with regard to the specific nature and substance of those comments. (Id.).*fn2

At her deposition testimony, Plaintiff related three additional incidents in which Martello made sexually offensive remarks, comments she had not specifically included in her March 1st memorandum. For instance, Plaintiff testified that Martello had once explained to her that the reason a woman sits with her legs open on the back of a motorcycle is "because when she hits bumps along her ride, there is like a sensation or vibration that she gets." (Hargrave Dep. at 44:17-45:13). Plaintiff also discussed an incident in which Martello boasted about a party he had attended in Philadelphia where he could have "laid" or "screwed" all the women he wanted. (Id. at 435:4-9). Finally, Plaintiff testified that Martello "often" told jokes about a blind man who passes a fish market, the point of which was that female genatalia smells like raw fish. (Id. at 43:7-25).*fn3

On March 5, 1996, shortly after circulating copies of her memorandum, Plaintiff filed a formal complaint of sexual harassment with the Atlantic County Department of Law. (See EEO Report dated March 21, 1996, attached as Ex. 8 to Pl.'s Stmt. of Facts). Plaintiff's complaints prompted an investigation by Donna Nelson, an Equal Employment Opportunity (EEO) officer employed by the Atlantic County Department of Law. As part of the investigation, Martello was suspended for two weeks and instructed not to speak with anyone regarding the allegations against him until the County had completed its investigation. (Martello Dep. at 16:25-17:4). Nelson investigated Plaintiff's allegations and interviewed several members of the Meadowview staff, including several of the food service workers identified in Plaintiff's letter, as well as employees outside the dietary unit who had had some contact with Mr. Martello. (Pl.'s Stmt. of Facts, Ex. 8). In a letter dated March 21, 1996, Nelson reported that her investigation had uncovered "insufficient evidence to support a finding of frequent and severe or pervasive activity giving rise to hostile environment sexual harassment." (Id.).

Plaintiff's allegations did not result in any formal disciplinary action against Martello. He did, however, receive a letter from DeMos reminding him that, as supervisory employee, he was expected to "make a conscious effort to act in a professional manner" and to "ensure that [his] behavior and actions are never questionable." (See internal memorandum dated March 14, 1996, attached as Ex. 10 to Pl.'s Stmt. of Facts). DeMos's letter also emphasized that inappropriate "jokes, innuendos, profanity, and foolishness must not be tolerated in the workplace" and recommended that Martello use the "episode [involving Hargrave's allegations and the subsequent investigation] as a very valuable learning experience." (Id.).

Plaintiff alleges that, in the months following the release of Nelson's report, Martello engaged in a pattern of "continuing harassment." Among other things, she accuses Martello of following her around the workplace, spying on her through security cameras, misinforming other supervisory staff about the nature of her job responsibilities, and falsely accusing her of taking unauthorized breaks. (Hargrave Dep. at 56:10 — 58:18). She also attributes poor ratings on a subsequent annual performance evaluation to Martello's anger over her sexual harassment allegations. On this evaluation, which was issued approximately six months after Plaintiff first complained about Martello's workplace behavior, Martello rated her "attitude" and "dependability" as less than satisfactory. He also criticized Plaintiff for allegedly displaying a "poor attitude" toward management and suggested that "her input would be more readily accepted/received if conveyed in a professional manner." (See Annual Performance Evaluation dated 9/9/96, attached as Ex. F of Def.'s Joint Stmt. of Facts; Ex. 3 of Pl.'s Stmt. of Material Facts).*fn4

Dissatisfied with the County's response to her complaints, Plaintiff filed a formal charge of discrimination with the Equal Employment Opportunity Commission on October 1, 1996. (See EEOC Charge #170970003, attached as Ex. 9 to Pl.'s Stmt. of Facts). In her complaint, Plaintiff reiterated allegations that she and several of her female co-workers had been "verbally sexually harassed" by Martello and accused the County of failing to conduct a thorough inquiry into these complaints.*fn5 (Id.). She also accused Martello of retaliating against her for voicing complaints about his inappropriate workplace conduct. (Id.).

On April 1, 1997, Martello confronted Plaintiff and Doris Hobdy, one of Plaintiff's co-workers, and accused the two of them of taking an "unauthorized" break. (Hargrave Dep. at 60:14-62:25). Plaintiff denied any wrongdoing and requested a meeting with Herman Cruse, the County's Assistant Director of Support Services, to discuss the incident. (Id. at 61:19-62:25; 63:1-11). A meeting was held later that afternoon in Martello's office and was attended by Plaintiff, Hobdy, Martello, Cruse and union president Carolyn Lambert. (Id. at 63:4-15). By all accounts, this meeting did not go well.

Plaintiff was invited to speak first, as she had been the one who requested the meeting. (Hargrave Dep. at 64:17-23). She attempted to explain why Martello had been wrong to accuse her and her co-worker of taking an "unauthorized" break. (Id.). The meeting, however, quickly degenerated into a shouting match when Martello suddenly stood up, leaned over his desk, thrust his finger in Plaintiff's face, and began screaming at her. He allegedly denounced Plaintiff as a "liar" and a "zero" and openly taunted her about the fact that her previous complaints of sexual harassment had not resulted in any disciplinary action against him. (Id. at 64:16-66:6; Cruse Dep. at 25:8-12). At one point, in the midst of this tirade, Martello "gestured toward" Plaintiff in a physically threatening manner "as if he were going to strike her." (Hargrave Dep. at 66:12-67:3). Indeed, Martello allegedly became so belligerent that he had to be physically retrained by Herman Cruse. (Cruse Dep. at 28:18-22).

Plaintiff reported the incident to both Susan DeMos, the County's Director of Support Services, and Susan Gross, an assistant counsel in the County's EEO office. (See EEOC Charge #170980567, attached as Ex. 18 to Pl.'s Stmt. of Facts). Plaintiff also submitted a written complaint to Samuel Stetzer, head of the County's Department of Human Services, Joyce Ross, the department's deputy director, and County Executive Richard Squires. (Id.). In the days following the incident, Plaintiff tried, unsuccessfully, to meet with DeMos to discuss Martello's allegedly threatening and intimidating outburst. (DeMos Dep. at 31:5-32:8). She also filed a formal grievance with her union representative, Levon Vonner, which he then forwarded to Herman Cruse. (See Official Grievance Form dated April 5, 1997, attached as Ex. 13 to Pl.' Stmt. of Facts; Hargrave Dep. at 70:6-12). However, this grievance was misplaced and later summarily dismissed on the grounds that it had been untimely filed. (See Inter-Office Memo dated June 27, 1997, attached as Ex. 15 to Pl.'s Stmt. of Facts; Cruse Dep. at 40:1-41:8; Hargrave Dep. at 340:9-343:11).

DeMos, the County's Director of Support Services, also received a report about the incident from both Martello and Cruse. (DeMos Dep. at 26:10-19). Martello, for his part, insisted that it had been Plaintiff who had instigated the incident and sought to have her disciplined for her behavior. (Martello Dep. at 40:22-42:1; Maurer Dep. at 28:1-6; DeMos Dep. at 25:21-26:19). While he acknowledged yelling at Plaintiff, he claimed to have done so only after she stood up, pointed her finger in his face, and began screaming at him. (Martello Dep. at 40:22-42:1; 44:6-18).

In an internal memorandum dated April 16, 1997, DeMos chastised Martello for losing his composure and warned him that she considered his behavior "completely inexcusable and unacceptable." (Memorandum from DeMos to Martello dated April 16, 1997, attached as Ex. 16 to Pl.'s Stmt. of Facts). She did not, however, recommend that he be subjected to any formal disciplinary action. (Martello Dep. at 44:19-25). Plaintiff, on the other hand, was later cited by DeMos for "insubordination" and "conduct unbecoming a public employee" and suspended for a period of five days. (Notice of Minor Disciplinary Action dated 4/18/97, attached as Ex. 17 to Pl.'s Stmt. of Facts; DeMos Dep. at 26:20-28:7).

Martello was briefly reassigned to another location at the Meadowbrook facility, but was permitted to return to the Dietary Unit approximately one week later. (See EEOC Charge dated April 27, 1998, attached as Ex. H to Def.'s Joint Stmt. of Facts). According to Plaintiff, upon his return, Martello promptly resumed his efforts to harass and intimidate her. Indeed, at her deposition, Plaintiff testified about two specific incidents which occurred on April 8, 1997, the very day Martello returned to the Dietary Unit. In one incident, she was serving food at one of the steamtables in the cafeteria, when Martello came out of his office and stood behind her, pinning her between himself and the serving table. (Hargrave Dep. at 74:17-77:25). He remained in that position, pressed up against Plaintiff's backside, despite her repeated requests that he move. (Id.). Later that afternoon, toward the end of Plaintiff's shift, Martello confronted her at the back entrance to the kitchen. He "walked into" her and then positioned himself in front of the exit and stood "within inches" of her face, silently staring at her. (Id. at 78:3-79:1). He remained in this position until Plaintiff managed to maneuver around him, retrieve her pocketbook, and leave the kitchen. (Id.).

Plaintiff subsequently reported both of these incidents to Susan Gross. (Id. at 79:7-22). In a meeting with Gross on April 25th, she expressed concern about Martello's "threatening" behavior and told her she could no longer tolerate working under his direct supervision. (Id. at 79:20-80:6; EEOC Charge #1709980567). She also provided Gross with written statements from Eleanor King and Martha Purelli, two co-workers who had allegedly witnessed Martello's conduct. (Hargrave Dep. at 81: 1-9). At the end of the month, Martello resigned his position as the Dietary Unit's food service manager. (DeMos Dep. at 40:8-10).

On April 27, 1998, Plaintiff filed a second complaint with the EEOC. (See EEOC Charge #1709805, dated April 27, 1998, attached as Ex. H to Def.'s Joint Stmt. of Facts). She alleged that she had been "harassed, humiliated, and intimidated" by Martello, and ultimately "suspended in retaliation for filing a previous charge of discrimination with the EEOC." (Id.). She also alleged that she had been the victim of "racial discrimination," though she did not set forth any specific facts to support this claim. (Id.).

The Philadelphia District Office of the EEOC issued its findings with respect to Plaintiff's complaints of sexual harassment and unlawful retaliation approximately one year later. (See EEOC Determination letter dated April 9, 1999, attached as Ex. 19 to Pl.'s Stmt. of Material Facts). In its report, the EEOC "determined that the evidence obtained during [its] investigation establish[ed] a violation of [Title VII of the Civil Rights Act of 1964] in that based on the unprofessional, abusive and provoking behavior of Food Service Manager [Martello], against whom a previous charge had been filed, [Plaintiff] was subjected . . . to a hostile work environment." (Id.) The report further concluded that the five day suspension she had received following Martello's outburst at the April 1st meeting constituted retaliation for filing a previous charge of sexual harassment with the agency. (Id.).

Plaintiff's Allegations of Racial Harassment and Retaliation:

Shortly after the release of the EEOC's report in April 1999, Plaintiff "began to have trouble with" Jeri Oaks, a caucasion female whom Meadowview had hired in August 1997 to serve as an assistant food service manager. (Pl.'s Stmt. of Facts at ¶ 116). According to Plaintiff, Oaks frequently "talked down" to her and the rest of the Unit's predominantly African-American staff by collectively referring to them as "you people." (Hargrave Dep. at 371:18-22; Swaggerty Dep. at 20:3-21:18; 50:24-54:6; Forbey Dep. at 16:8-22:22; Purelli Dep. at 17:20-20:13; 52:18-54:6; Hopkins Dep. at 56:21-58:9). Oaks was informed by Masolene Hopkins, one of the Unit's union representatives, that several of the Unit's African-American employees considered her use of this phrase racially offensive and derogatory, but nevertheless continued to address the Unit's staff in this manner. (Hopkins Dep. at 20:9-21:22; 53:11-14; 56:21-58:9).

Plaintiff also accuses Oaks of giving "preferential treatment" to Frances Piehs, one of her white female co-workers. (Hargrave Dep. at 236:25-239:17). She claims that Oaks frequently allowed Piehs to sit in her office for extended periods of time. (Id. at 237:2-9). She also points to an incident in which Oaks allegedly permitted Piehs to read the vacation slips of other kitchen workers." (Id. at 83:1-84:21).

Plaintiff twice got into heated arguments with Oaks in response to what she describes as Oak's rude and unprofessional behavior and allegedly disrespectful attitude toward the Unit's staff. The first incident occurred in October 1999, on a day when the morning shift was short-staffed. (Id. at 90:11-96:11). Plaintiff made several attempts to locate Oaks, who was the assistant FSM on duty that morning, and eventually discovered her sitting in an office talking with a member of the Meadowview's nursing staff. (Id.). Plaintiff told Oaks that several employees had "called out" and explained that her assistance was needed in working the breakfast line. (Id.). When Oaks dismissed Plaintiff's concerns and insisted that she and the rest of the staff could manage the breakfast line without her, the two got into a heated verbal exchange. (Id.).

Plaintiff later filed a grievance against Oaks with her union representative. (Id. at 97:3-6). The nurse in whose office the altercation had taken place also filed a complaint and accused Plaintiff of violating the County's rules against "violence in the workplace."(Id. at 96:12-20). Plaintiff acknowledges that both she and Oaks "raised their voices," but insists the argument did not involve any physical violence or threat of violence. (Id. at 95:24-96:11). The incident was investigated by Donna Nelson-Lee, the County's director of Human Resources, but neither Plaintiff nor Oaks were ever formally counseled or otherwise disciplined for their behavior. (Id. at 97:7-98:11).

In February 2000, Plaintiff got into another argument with Oaks after allegedly observing her drag and kick another employee's coat around the floor of the employee lockerroom. (Id. at 226:7-228:1). Plaintiff confronted Oaks and chastised her for not respecting other people's property. (Id. at 228:13-19). Oaks insisted that she was simply putting the coat away so that it would not clutter the lookerroom. (Oaks Dep. at 24:8-25:21). Oaks met with Wilton Bennet, Meadowview's chief administrator, later that day and reported that Plaintiff had walked up to her, to the point where their chests were touching, and repeatedly yelled at her. (Id.). Plaintiff, however, denies that the incident involved any "yelling" or "touching." (Hargrave Dep. at 229:14-18; 230:5-17).

On February 23, 2000, the County served Plaintiff with a Preliminary Notice of Disciplinary Action seeking her termination and removal. (See Notice of Disciplinary Action dated 2/23/00, attached as Ex. 27 to Pl.'s Stmt. of Facts). This notice made reference to Plaintiff's confrontation with Oaks on February 18th and accused her of "engaging in aggressive and hostile language and behavior." (Id.). The Notice also indicated that Plaintiff had previously been counseled regarding the County's rules prohibiting "violence in the workplace," a statement which was later determined to be false. (Id.; Hargrave Dep. at 105:23-24; Ross Dep. at 43:6-9; Nelson-Lee Dep. at 31:6-16). A disciplinary hearing was scheduled but, for reasons which are not clear, was later cancelled. (Hargrave Dep. at 103:22-104:13). According to Plaintiff's testimony, this hearing was never rescheduled. (Id. at 104:104:4-13). Indeed, there is no evidence that this Notice ever actually resulted in any formally disciplinary action against Plaintiff.*fn6

On March 17, 2000, Defendant Oaks met with Plaintiff to review a copy of her annual performance evaluation for the 1999/2000 employment period. (Oaks Dep. at 34:25-35:11). This evaluation, which had been prepared by Defendant Oaks, rated Plaintiff's "attitude" as "marginal," and recommended that Plaintiff work on improving her "attitude toward management." (See "Employee Performance Report," attached as Ex. 29 to Pl.'s Stmt. of Facts). Like the Notice of Disciplinary action Plaintiff had received in February, Oak's evaluation incorrectly stated that Plaintiff had received "verbal counseling" regarding "violence in the workplace." (Id.). Plaintiff refused to sign the evaluation form and demanded that Oak's remove all references to her having been counseled for violence in the workplace. (Id.; Oaks Dep. at 34:25-35:11).

Oaks brought Plaintiff's complaints to attention of Defendant Wilton Bennet, the Meadowview's chief administrator, and the two met with Defendant Joyce Ross, deputy director of the County's Human Services Department, to discuss Plaintiff's evaluation. (Oaks Dep. at 35:5-36:23). At this meeting, Bennet and Ross did not address Plaintiff's comments with respect to Oak's reference to workplace violence, but focused instead on critiquing other aspects of Oak's evaluation. (Id. at 36:24-37:2; 40:6-10; 22-25). Bennet, for instance, questioned how Oaks could justify giving Plaintiff a "satisfactory" rating in the "dependability" category when Plaintiff's attendance record indicated that she had exhausted all of her allotted "sick days." (Id. at 37:6-23). After some discussion, Bennet and Ross instructed her to downgrade Plaintiff's rating to "marginal." (Id. at 37:6-13). They also told Oaks to adjust Plaintiff's "overall rating" from "better" to "satisfactory" to reflect the change in her "dependability" rating. (Id. at 38:2-16; 39:19-25). Ross, for her part, also directed Oaks not to include her comments, which offered praise for Plaintiff's work performance, in the revised version of Plaintiff's performance evaluation. (Id. at 41:20-42:4). She did not, however, offer any explanation for insisting on this change. (Id. at 42:5-24).

On March 30, 2000, Plaintiff's annual evaluation was declared "VOID" and a second "corrected" evaluation was issued which omitted any reference to workplace violence. (See Employee Performance Report, attached as Ex. 30 to Pl.'s Stmt. of Facts). Consistent with Bennet and Ross's instructions, this evaluation also downgraded Plaintiff's "dependability" rating from "satisfactory" to "marginal," changed her overall rating from "better" to "satisfactory," and eliminated Oak's positive comments about Plaintiff's work performance. (Id.).

Plaintiff once again refused to sign the form and sent a letter to Donna Nelson-Lee, the Human Resources Director, protesting these additional changes. (See Letter to Nelson-Lee dated April 11, 2000, attached as Ex. 31 to Pl.'s Stmt. of Facts). She also filed a formal grievance with her union representative. (See Official Grievance Form dated April 7, 2000, attached as Ex. 31 to Pl.'s Stmt. of Facts). Based on Nelson-Lee's recommendations, a third and final evaluation was issued on April 17, 2000 which restored Oak's comments and Plaintiff's original ratings and omitted all references to "verbal counseling" for workplace violence. (See Employee Performance Report dated April 17, 2000, attached as Ex. 33 to Pl.'s Stmt. of Facts). Plaintiff's first two evaluations were thereafter officially removed from Plaintiff's file. (See Inter-Office Memorandum from Nelson-Lee to Ross dated April 14, 2000, attached as Ex. 32 to Pl.'s Stmt. of Facts).

Plaintiff filed a complaint with this Court approximately one month later, accusing Defendant Atlantic County and Defendant Martello of violating her rights under Title VII (Count I), the Equal Protection and Due Process Clauses of the Fourteenth Amendment (Count II), and the NJLAD (Count III). She alleged that she had experienced both racial and sexual harassment while employed at the Meadowview and claimed to have been subjected to retaliation for voicing complaints about such harassment. Plaintiff subsequently filed an Amended Complaint on September 8, 2000, which named Geri Oaks, Wilton Bennet, and Joyce Ross, as additional defendants in this action.

Each of the named Defendants now moves for summary judgment with respect to certain aspects of Plaintiff's Amended Complaint. Defendants Atlantic County, Wilton Bennet, and Salvatore Martello move for summary judgment with respect to all three counts of Plaintiff's complaint. Additionally, each of the individually named defendants — Martello, Bennet, Oaks, and Ross — have each separately moved for summary judgment with respect to Plaintiff's hostile work environment and retaliation claims on the grounds that no basis exists for holding them personally liable for the unlawful employment practices alleged in Plaintiff's Amended Complaint.


The standard for granting a motion for summary judgment is a stringent one, though it is not insurmountable. Rule 56 of the Federal Rules of Civil Procedure provides that summary judgment may be granted only when the evidence contained in the record, including "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 judgment as a matter of law." Serbin v. Bora Corp. 96 F.3d 66, 69 n. 2 (3d Cir. 1996). In deciding whether there are any disputed issues of material fact which must be reserved for trial, the court must view the record in the light most favorable to the non-moving party, together with all reasonable inferences which can be drawn therefrom. The threshold inquiry is whether there are "any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986).

Once the moving party has carried its burden of establishing the absence of a genuine issue of material fact, "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 (1986). Indeed, relevant Supreme Court decisions mandate that a summary judgment motion be granted unless the party opposing the motion "provides evidence `such that a reasonable jury could return a verdict in favor of the nonmoving party.'" Lawrence v. National Westminster Bank New Jersey, 98 F.3d 61, 65 (3d Cir. 1996) (quoting Anderson, 477 U.S. at 248). In other words, the non-moving party must "make a showing sufficient to establish the existence of [every] element essential to that party's case, and on which that party will bear the burden of proof at trial." Serbin, 96 F.3d at 69 n. 2 (quoting Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986)). Thus, if the non-movant's evidence on any essential element of the claims asserted is merely "colorable" or is "not significantly probative," the court must enter summary judgment in favor of the moving party. Anderson, 477 U.S. at 249-50; see also Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991) (observing that non-movant's effort to defeat summary judgment may not "rest upon mere allegations, general denials, or . . . vague statements").


Counts I and III of Plaintiff's Amended Complaint assert claims for hostile work environment sexual and racial harassment under both Title VII and the NJLAD. As a general matter, the same basic principles apply when evaluating Plaintiff's claims under these two statutes.

Title VII makes it unlawful for an employer "to discriminate against any individual with respect to his [or her] compensation, terms, conditions, or privileges of employment because of such individual's race, color, religion, sex, or national origin." 42 U.S.C. § 2000e-2(a)(1). While the text of the statute generally makes reference to "specific employment decisions with immediate consequences, the scope of its prohibition [against discrimination in the workplace] is not limited to economic or tangible discrimination" and "covers more than terms and conditions in the narrow contractual sense." National R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 115-16 (2002) (internal quotations and citations omitted); see also Harris v. Forklift Sys., 510 U.S. 17, 21 (1993) (observing that "[t]he phrase `terms, conditions, or privileges of employment' evinces a congressional intent to strike at the entire spectrum of disparate treatment of men and women in employment, which includes requiring people to work in a discriminatorily hostile or abusive environment.") Indeed, it is by now well-established that a plaintiff can demonstrate a violation of Title VII through proof that racial harassment or unwelcome sexual conduct or comments have unreasonably interfered with his or her job performance or led to the creation of an intimidating, hostile, or abusive work environment. See Meritor Sav. Bank FSB v. Vinson, 477 U.S. 57, 67 (1986); Weston v. Commonwealth of Pennsylvania, 251 F.3d 420, 425-26 (3d Cir. 2001); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1081 (3d Cir. 1996).

The Court of Appeals for the Third Circuit has articulated five factors that must be proven in order to establish the existence of an actionable hostile work environment under Title VII. Specifically, plaintiff must prove: "(1) that she suffered intentional discrimination because of her race or sex; (2) that the discrimination was pervasive and regular; (3) that the discrimination detrimentally affected her; (4) that the discrimination would detrimentally affect a reasonable person of the same race or sex in that position; and (5) the existence of respondeat superior liability." Evans v. Nine West Group, Inc., 2002 WL 550477 (E.D.Pa. April 15, 2002) (citing Weston, 251 F.3d at 426) (internal quotations omitted); see also Kunin v. Sears Roebuck & Co., 175 F.3d 289, 293 (3d Cir. 1999) (citing Andrews v. City of Philadelphia, 895 F.2d 1469, 1482 (3d Cir. 1990)). Reduced to its most basic components, an actionable hostile work environment requires proof that Plaintiff was subjected to a level of gender or race-based harassment which was "severe or pervasive" enough to create a working environment which is both subjectively and objectively abusive or hostile to female or African-American employees. See Harris, 510 U.S. at 21 (analyzing hostile work environment claim based on sexual harassment); National Railroad Passenger Corp., 536 U.S. at 116 n. 10 (observing that hostile work environment claims based on racial harassment are reviewed under the same standard as those based on sexual harassment.").*fn7

In moving for summary judgment with respect to Plaintiff's state and federal hostile work environment claims, Defendants contend that there is insufficient evidence in the record from which a jury could conclude that the conduct about which Plaintiff complains constituted harassment or discrimination on the basis of her race or gender. Defendants further argue that the conduct alleged, even if directed at Plaintiff because of her gender or race, was not sufficiently "severe or pervasive" to alter the terms and conditions of Plaintiff's employment and create an objectively hostile work environment actionable under either Title VII or the NJLAD.

A. Gender or Race-Based Harassment?

"Title VII does not prohibit all verbal or physical harassment in the workplace; it is directed only at discrimination because of sex or race.'" Oncale v. Sundowner Offshore Services, Inc., 523 U.S. 75, 81 (1998). "The critical issue, as Title VII's text indicates, is whether members of one sex [or race] are exposed to disadvantageous terms or conditions of employment to which members of the other sex [or race] are not exposed." Id. at 80 (quoting Harris, 510 U.S. at 25 (Ginsburg, J. concurring)).

Sexual harassment, for instance, can take on different forms, both overtly sexual and facially neutral. See Ogden v. Keystone Residence, 226 F. Supp.2d 588, 598 (M.D.Pa. 2002). Offensive conduct need not necessarily include obvious sexual overtones in order to constitute unlawful harassment or discrimination. Andrews, 895 F.2d at 1485; rather, what "is required is a showing that [Plaintiff's gender was] a substantial factor in the harassment, and that if the plaintiff had been [male] she would not have been treated in the same manner." Aman, 85 F.3d at 1083; see also Cardenas, 269 F.3d at 261; Durham Life Ins. Co. v. Evans, 166 F.3d 139, 148 (3d Cir. 1999). "The intent to discriminate on the basis of sex in cases involving sexual propositions, innuendo, pornographic materials, or sexual derogatory language is implicit, and thus should be recognized as a matter of course." Andrews, 895 F.2d at 1482 n. 3. However, "a more fact intensive analysis will be necessary where the actions are not sexual by their very nature." Id.

These same basic principles apply to allegations of racial harassment — that is, in order to constitute racial harassment, the subject comments or behavior need not be overtly racial in nature. Aman, 85 F.3d at 1083 (observing that "there are no talismanic expressions which must be invoked as a condition-precedent to the application of laws designed to protect against [racial] discrimination" and harassment). As the Third Circuit has recently observed, "the advent of more sophisticated and subtle forms of discrimination requires that [courts] analyze the aggregate effect of all evidence and reasonable inferences therefrom, including those concerning incidents of facially neutral mistreatment, in evaluating a hostile work environment claim." Cardenas, 269 F.3d at 262.*fn8

B. Severe or Pervasive Harassment?

In order to fall within the purview of Title VII, the sexual or racial harassment about which a plaintiff complains must be "severe or pervasive" enough to create both "an objectively hostile or abusive work environment — an environment that a reasonable person would find hostile or abusive," and an environment which the she subjectively perceives as hostile or abusive. Harris, 510 U.S. at 21-22; see also Weston, 251 F.3d at 426 ("the harassment must be so severe or pervasive that it alters the conditions of the victim's employment and creates an abusive environment") (citing Meritor, 477 U.S. at 67). Both the Supreme Court and the Third Circuit have held that "`simple teasing, offhand comments, and [non-serious] isolated incidents" do not `amount to discriminatory changes in the terms and conditions of employment'" and are therefore insufficient to raise a genuine issue of material fact with respect to this particular element of an alleged sexual or racial harassment victim's prima facie case. Abramson, 260 F.3d at 280 (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)). Courts evaluating allegations of racial or gender-based hostility are therefore encouraged to "filter out" complaints based on nothing more than the "the ordinary tribulations of the workplace, such as the sporadic use of gender-related jokes, and occasional ...

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