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CORTES v. UNIVERSITY OF MEDICINE

May 5, 2005.

MARITZA CORTES, Plaintiff,
v.
UNIVERSITY OF MEDICINE AND DENTISTRY OF NEW JERSEY, MARTY WILT, JOHN GREMBOWICZ, BETTY ANN GARDNER, STEVE PAWLAK, MIKE McMANUS, and KEVIN SEYBOLD, Defendants.



The opinion of the court was delivered by: JEROME SIMANDLE, District Judge

OPINION

This employment discrimination case comes before the Court upon Defendants' motion for summary judgment. All discovery has been completed, and the Court is called upon to assess which, if any, of Plaintiff's many claims have evidentiary support sufficient to be submitted to a jury at trial. This motion requires the Court to address issues of the statute of limitations under the state and federal statutes governing discrimination in the workplace, as well as the evidentiary standard necessary to maintain a claim of hostile work environment, retaliatory employment action, and punitive damages. For the following reasons, the motion for summary judgment will be granted in part and denied in part.

  I. BACKGROUND

  This matter arises out of the employment relationship between Plaintiff, Maritza Cortes, and Defendant, The University of Medicine and Dentistry of New Jersey ("UMDNJ"). On December 21, 2001, Plaintiff was terminated by UMDNJ for committing violations of UMDNJ policies and procedures, including causing damage to UMDNJ property. Plaintiff alleges that her termination was in retaliation for her various complaints about sexual harassment and gender/racial discrimination in violation of Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e, et seq., the New Jersey Law Against Discrimination ("NJLAD"), N.J.S.A. 10:5-1, et seq., and various other civil rights statutes.

  Plaintiff, a Hispanic female, was employed by UMDNJ as an Emergency Medical Technician ("EMT") at the Camden Division. UMDNJ is the State of New Jersey's health sciences university and is comprised of eight educational units located on several campuses throughout New Jersey. UMDNJ also operates many health care facilities and services throughout the State, among these is the University Hospital Emergency Medical Services, Camden Division.

  On December 21, 2001, Plaintiff was terminated by UMDNJ after an investigation of her conduct and credibility relating to events that occurred on November 28, 2001. UMDNJ determined that Plaintiff's conduct on this date violated the clear policies of the Emergency Medical Services Department ("EMS") and warranted her termination from employment. UMDNJ's investigation revealed that Plaintiff was driving one of only two ambulances that were available to the City of Camden during her shift. Defendants allege that, at approximately 4:00 a.m., Plaintiff drove her unit off the paved surface and into a debris-strewn vacant lot, remote from the road, where the unit became immobile. All EMS Camden Division vehicles are equipped with the ALLSAFE E-90 computer system. The system for the unit operated by Plaintiff on November 28, 2001 recorded what happened to the unit as well as the actions taken by Plaintiff while in control of the emergency vehicle. The manner in which the vehicle was treated by Plaintiff was found to be in violation of departmental policies and resulted in damage to the vehicle, requiring a tow truck to extract the unit and remove it from the area.

  Plaintiff reported that she had been flagged down by a pedestrian who indicated that someone was calling for help from the vacant lot. Plaintiff's version of what occurred, however, apparently did not coincide with the investigation nor were her actions in compliance with EMS policies and procedures for responding to distress calls. In addition, Plaintiff's partner, Melanie Layton, withdrew her original report which had supported Plaintiff's version of events for a revised report which indicated that the pair had not been flagged down by a pedestrian, as Plaintiff reported. Plaintiff contends that Steve Pawlak, the operations coordinator at EMS, instructed Layton to change her story in order to avoid termination. Nevertheless, Ms. Layton, a white female, was terminated as well as a result of the events that occurred on November 28, 2001.

  On June 26, 2002, Plaintiff filed a charge of discrimination with the Equal Employment Opportunity Commission ("EEOC"), alleging that she was terminated from her employment with UMDNJ in retaliation for reporting several isolated incidents of harassment that occurred between December 1999 and June 2001. After the completion of an investigation, the EEOC issued a finding of no probable cause.

  Plaintiff subsequently filed suit on January 24, 2003 against UMDNJ; Marty Wilt, Chief of Emergency Medical Services; John Grembowicz, Associate Director of Emergency Medical Services; Betty Ann Gardner, Training Supervisor for Emergency Medical Services; Steve Pawlak, Emergency Medical Services Coordinator; Mike McManus, a former Emergency Medical Technician; and Kevin Seybold, a former Emergency Medical Technician.

  After Defendants filed their motion for summary judgment, Plaintiff subsequently withdrew Counts I (violation of due process under 42 U.S.C. § 1983), III (civil rights violations under 42 U.S.C. § 1985), and IV (civil conspiracy) of her Complaint. In addition, Plaintiff withdrew her claims for individual liability under Count II (violation of equal protection under 42 U.S.C. § 1983).

  Oral argument was held on January 5, 2005. At that time, Plaintiff's counsel withdrew the remainder of Count II of the Complaint. Therefore, the Court is called upon to address Defendants' motion for summary judgment with respect to the following remaining claims: violation of the New Jersey Law Against Discrimination (Count VI); violation of the New Jersey Constitution (Count VII); Title VII national origin and sex discrimination violations (Count VIII); Title VII retaliation (Count IX); and violation of the First Amendment under 42 U.S.C. § 1983 (Count X).*fn1

  II. DISCUSSION

  A. Summary Judgment Motion Standard of Review Summary judgment is appropriate when the materials of record "show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(c). A dispute is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the non-moving party." See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" only if it might affect the outcome of the suit under the applicable rule of law. Id. Disputes over irrelevant or unnecessary facts will not preclude a grant of summary judgment. Id.

  In deciding whether there is a disputed issue of material fact, the court must view the evidence in favor of the non-moving party by extending any reasonable favorable inference to that party; in other words, "[T]he nonmoving party's evidence `is to be believed, and all justifiable inferences are to be drawn in [that party's] favor.'" Hunt v. Cromartie, 526 U.S. 541, 552 (1999) (quoting Liberty Lobby, 477 U.S. at 255). 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." Liberty Lobby, 477 U.S. at 250; Brewer v. Quaker State Oil Refining Corp., 72 F.3d 326, 329-30 (3d Cir. 1995) (citation omitted).

  The moving party always bears the initial burden of showing that no genuine issue of material fact exists, regardless of which party ultimately would have the burden of persuasion at trial. See Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Country Floors v. Partnership of Gepner and Ford, 930 F.2d 1056, 1061-63 (3d Cir. 1991) (reviewing district court's grant of summary judgment in a trademark action); Lucent Info. Manage. v. Lucent Tech., 986 F. Supp. 253, 257 (D.N.J. 1997) (granting summary judgment in favor of telecommunications provider in trademark action), aff'd, 186 F.3d 311 (3d Cir. 1999); Jalil v. Avdel Corp., 873 F.2d 701, 706 (3d Cir. 1989), cert. denied, 493 U.S. 1023 (1990). However, where the nonmoving party bears the burden of persuasion at trial, as plaintiff does in the present case, "the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex Corp., 477 U.S. at 325.

  The non-moving party "may not rest upon the mere allegations or denials of" its pleading in order to show the existence of a genuine issue. Fed.R.Civ.P. 56(e). Plaintiff must do more than rely only "upon bare assertions, conclusory allegations or suspicions." Gans v. Mundy, 762 F.2d 338, 341 (3d Cir. 1985), cert. denied, 474 U.S. 1010 (1985) (citation omitted); see Liberty Lobby, 477 U.S. at 249-50. Thus, if the plaintiff's evidence is a mere scintilla or is "not significantly probative," the court may grant summary judgment. Liberty Lobby, 477 U.S. at 249-50; Country Floors, 930 F.2d at 1061-62.

  B. Plaintiff's NJLAD Claim (Count VI)

  Plaintiff sets forth, in Count VI of her Complaint, a cause of action under the NJLAD for discrimination against her on the basis of sex and national origin and for retaliation against Plaintiff for reporting the alleged discriminatory practices of Defendants. The Court will now address Plaintiff's NJLAD claim as it relates to her allegations of discrimination and a hostile work environment; the retaliation component of Plaintiff's cause of action will be addressed later in this Opinion. Defendants move for summary judgment, first, on the basis that allegations of NJLAD violatory acts prior to January 24, 2001 are time barred.

  In Montells v. Haynes, 627 A.2d 654 (N.J. 1993), the New Jersey Supreme Court established a two year statute of limitations for all claims brought under the NJLAD after July 23, 1993. Generally, this statute of limitations begins to run when the adverse employment decision is made and communicated to the plaintiff. Here, Plaintiff filed her Complaint on January 24, 2003. Defendants contend that many of the allegations contained therein fall outside the statute of limitations period, including: (1) Plaintiff's allegation that she was evaluated after her probationary period by Mike McManus on December 17, 1999 (Compl. at ¶¶ 23-24); (2) Plaintiff's allegation that some unknown person placed a clipping from an article in her employee mailbox on February 17, 2000 which criticized persons who spoke a foreign language in the presence of others (Id. at ¶¶ 35-37); (3) Plaintiff's allegation that some unknown person placed a wrapped and unused tampon in her employee mailbox on July 3, 2000 (Id. at ¶ 38); (4) Plaintiff's allegation that she was denied admittance to various EMS committees in December 1999 (Id. at ¶¶ 25-33); (5) Plaintiff's allegation that she was the subject of derogatory comments made by Mike McManus and Kevin Seybold on September 10, 2000 (Id. at ¶¶ 39-42); and (6) Plaintiff's allegation that she was struck by an ambulance driven by her partner, Dominik Pietra, on October 25, 2000 (Id. at ¶¶ 43-44). Thus, Defendants argue that these allegations must be dismissed. Plaintiff, however, asserts that her claims are not time-barred because she is able to avail herself of the protections of the continuing violation theory.

  In Havens Realty Corp. v. Coleman, 455 U.S. 363, 380 (1982), the Supreme Court held that when a plaintiff challenges more than just one incident of unlawful conduct, or an unlawful practice that continues into the limitations period, the complaint is timely filed. The actual violations must be continuing, however, and not merely the effects of the prior violation. Delaware State College v. Ricks, 449 U.S. 250, 257 (1980).

  The continuing violation theory permits a plaintiff to pursue a claim for discriminatory conduct that started before the filing period if she can demonstrate that the act is part of an ongoing practice or pattern of discrimination. West v. Philadelphia Elec. Co., 45 F.3d 744, 754 (3d Cir. 1995). To demonstrate a continuing violation, Plaintiff must show: (1) that at least one discriminatory or harassing act occurred within the 300 day period;*fn2 and (2) that the harassment or discrimination represents a continuing pattern, or more than the occurrence of isolated or sporadic acts of intentional discrimination. West, 45 F.3d at 754-755. In Berry v. Board of Supervisors of Louisiana State University, 715 F.2d 971, 981 (5th Cir. 1983), the Fifth Circuit set forth the following three factors for determining whether a plaintiff has demonstrated a continuing violation: (1) subject matter; (2) frequency; and (3) degree of permanence. The first factor is a consideration of whether the alleged acts are composed of the same type of discrimination. Id. The frequency factor considers whether the alleged conduct concerns repeated actions, or merely isolated events, such as a single, less preferable work assignment or an unfavorable employment decision. Id. Finally, in regard to the permanence factor, a court may evaluate the allegedly unlawful act in terms of whether the employee should have expected the adverse consequences of the action to remain in existence. Id. Although these factors are not binding on this Court, they have previously been relied on by the Third Circuit*fn3 and very closely match the requirements of West. In applying the Berry factors, the Third Circuit considers the "degree of permanence" to be the most important element. Cowell v. Palmer Township, 263 F.3d 286, 292 (3d Cir. 2001). In evaluating this factor, courts should focus their inquiry on "whether the nature of the violations ...


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