United States District Court, D. New Jersey
June 8, 2005.
SUSAN Q. GREB, Plaintiff,
JOHN E. POTTER and UNITED STATES POSTAL SERVICE Defendants.
The opinion of the court was delivered by: GARRETT BROWN, District Judge
This matter comes before the Court upon Plaintiff's motion and
Defendant's cross-motion for summary judgment pursuant to Federal
Rule of Civil Procedure 56(c). Having considered the parties'
written submissions, and for the reasons discussed herein,
Plaintiff's motion is denied and Defendant's cross-motion is
This action involves claims of unlawful discrimination based on
gender, race and disability. Plaintiff Susan Q. Greb
("Plaintiff") brought suit against Defendants John E. Potter, the
Postmaster General, and the United States Postal Service
(collectively referred to as "Defendants") on July 12, 2002. In
her Amended Complaint, Plaintiff alleges disability
discrimination under § 501 of the Rehabilitation Act of 1973,
29 U.S.C. § 791 ("the Rehabilitation Act"), and discrimination based
on gender and race in violation of Title VII of the Civil Rights
Act of 1964, 42 U.S.C. §§ 2000(e) et seq. (Am. Compl. at 2-3).
Plaintiff also claims that she was subjected to a discriminatory
hostile work environment and was constructively discharged from her position.
Plaintiff began employment with the United States Postal
Service on June 26, 1982. Plaintiff suffered two work-related
injuries which caused her to undergo shoulder surgeries. The
Department of Labor found that she was fit to work eight hours a
day in limited duty position. On May 25, 1999, Plaintiff was
offered a rehabilitation job offer as a Modified Mark-up Clerk
Automat which incorporated certain work restrictions based on her
medical impairments. (Pl.'s Decl., Ex. 2). Her duties included,
inter alia, working on mechanized and non-mechanized terminals
which involved a certain degree of keying. Plaintiff accepted the
rehabilitation job offer in July of 1999.
Plaintiff was assigned to the Computerized Mail Forwarding
System ("CFS") Unit. The CFS Unit was created at Monmouth
Processing and Distribution Center ("MPDC") in 1988. This unit
performs mail-forwarding services for the Postal Service. The
original supervisor of the CFS Unit was Robert Hoffman. In June
of 1999, the CFS Unit added the position of manager who was
responsible for supervising the employees, including the
supervisor. Horace Bonaparte ("Bonaparte") assumed this position.
Bonaparte was manager of the CFS Unit at MPDC between February of
1999 and March of 2002. Thereafter, the CFS Unit at MPDC closed
and Bonaparte was transferred to the CFS Unit located in New
Brunswick, New Jersey.
When Plaintiff began her position, she worked under the
supervision of Robert Hoffman. In March of 2000, however, the
unit divided into two tours the morning and evenings tours.
Bonaparte became the direct supervisor of the morning tour the
tour to which Plaintiff was assigned. Hoffman became supervisor
of the evening tour, but remained under the overall supervision
of Bonaparte. The managing style of Bonaparte and Hoffman greatly
differed. Bonaparte began implementing different policies, rules
and procedures. For example, Bonaparte prohibited the use of cell phones at employees' work stations,
and limited telephone calls by the employees. Employees were also
prohibited from bringing handbags, large bags, food or drinks to
their work area. Additionally, employees were required to inform
Bonaparte whenever they needed to leave the work area, which
included bathroom breaks. Many employees did not welcome the
changes in the work environment. Some employees found the
environment stressful or difficult. Other employees, however,
recognized that Bonaparte's style of managing was a means of
Although the working relationship between Plaintiff and her new
supervisor, Bonaparte, began without difficulty, a poor
relationship eventually developed between them. Between March and
July of 2000, Plaintiff recorded various incidences when she felt
that she was being harassed by Bonaparte. Plaintiff asserts that
Bonaparte would threaten her with disciplinary action when she
would not follow his orders. Plaintiff also asserts that she
requested Bonaparte to call her "Mrs. Greb," but Bonaparte
refused. Instead, she alleges that Bonaparte called her "Susan"
(her first name) or would mock her by addressing her with
variations of her last name.
With regard to Bonaparte's newly instituted policy of requiring
all employees to inform him whenever they left the work room
floor, Plaintiff claims that this policy only applied to females.
Defendants dispute this contention. Plaintiff asserts that she
felt uncomfortable with the concept of telling Bonaparte when she
had to use the bathroom. In lieu of this phrase, Plaintiff claims
she would inform Bonaparte that she needed to wash her hands.
Plaintiff recorded one incident when she informed Bonaparte that
she was going to wash her hands. In response, Bonaparte threw a
pair of gloves on her desk. Plaintiff further claims that
Bonaparte yelled at her while she was having a private
conversation with her co-worker. In April of 2000, Bonaparte received a threatening letter
concerning the manner in which he treated women. Bonaparte
forwarded the letter to the Postal Inspectors who asked him if he
knew of any employees who were unhappy with him. Bonaparte
identified Plaintiff and another employee of the CFS Unit. The
Postal Inspectors subsequently questioned them. Plaintiff cites
this incident, that is, the questioning by the Postal Inspectors,
as another example of how she was harassed at work.
The series of negative exchanges between Plaintiff and
Bonaparte culminated on July 18, 2000. On this day, Plaintiff
reported to work and was waiting to receive her daily assignment
from Bonaparte. Bonaparte initially assigned her to work on a
mechanized terminal. Plaintiff then informed Bonaparte that she
was not able to perform this task because she had a medical note.
The note was dated June 26, 2000. Plaintiff failed to present the
note to Bonaparte before this day. The note stated "Mrs. Greb is
unable to perform keyboarding on the mechanized terminal for 3
months due to a neck injury." (Pl.'s Decl., Ex. 6). Bonaparte
instructed Plaintiff to sit in a chair and to await further
instructions. Bonaparte continued to give assignments to the
remaining employees. Plaintiff remained seated in the chair for
approximately an hour. During that time, she felt uncomfortable
sitting in the chair without having received an assignment.
Plaintiff felt that she was being humiliated. She began to
experience chest pains and sought a union advocate. Eventually, a
union advocate arrived to discuss the situation. Once Bonaparte
was informed that Plaintiff was experiencing chest pains, he
called for an ambulance. Plaintiff was subsequently transported
to the hospital, and was discharged the same day.
Following this incident, Plaintiff requested that Bonaparte
complete a form which states that Plaintiff suffered a traumatic
injury on that day. Bonaparte refused to complete the form.
Plaintiff also requested a transfer to another facility. Her request was
denied. Since July 18, 2000, Plaintiff has not returned to work
because she contends she cannot work under the supervision of
On November 23, 2004, Plaintiff moved for summary judgment on
all claims raised in Plaintiff's Amended Complaint.*fn1 On
December 13, 2004, Defendants filed opposition and cross-moved
for summary judgment. Plaintiff filed her reply and opposition to
the cross-motion on December 20, 2004. The Court notes that with
the exception of some changes made to the preliminary statement,
Plaintiff essentially resubmitted the same argument section of
her moving papers, twenty-nine pages in total, as her responsive
pleading. Thus, Plaintiff largely fails to respond to the
arguments and defenses raised by Defendants in their
cross-motion. A reply letter brief was submitted by Defendants on
January 10, 2005. Oral argument was heard on January 18, 2005, at
which time the parties informed the Court that they rely entirely
on their briefs. Having considered all pleadings and the
voluminous declarations and affidavits submitted by the parties,
the Court will now address all of Plaintiff's claims.
A. Summary Judgment Standard
A party seeking summary judgment must "show that there is no
genuine issue as to any material fact and that the moving party
is entitled to a judgment as a matter of law." FED. R. CIV. P.
56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986); Orson, Inc. v. Miramax Film Corp., 79 F.3d 1358, 1366 (3d Cir. 1996); Healy v. New York
Life Ins. Co., 860 F.2d 1209, 1219, n. 3 (3d Cir. 1988), cert.
denied, 490 U.S. 1098 (1989); Hersh v. Allen Prod. Co.,
789 F.2d 230, 232 (3d Cir. 1986). 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) (noting that no issue for trial
exists unless there is sufficient evidence favoring the nonmoving
party for a jury to return a verdict in its favor). In deciding
whether triable issues of fact exist, the court must view the
underlying facts and draw all reasonable inferences in favor of
the non-moving party. Matsushita Elec. Indus. Co., Ltd. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Pa. Coal Ass'n v.
Babbitt, 63 F.3d 231, 236 (3d Cir. 1995); Hancock Indus. v.
Schaeffer, 811 F.2d 225, 231 (3d Cir. 1987).
Rule 56(e) of the Federal Rules of Civil Procedure provides, in
When a motion for summary judgment is made and
supported as provided in this rule, an adverse party
may not rest upon the mere allegations or denials of
the adverse party's pleading, but the adverse party's
response, by affidavits or as otherwise provided in
this rule, must set forth specific facts showing that
there is a genuine issue for trial. If the adverse
party does not so respond, summary judgment, if
appropriate, shall be entered against the adverse
FED. R. CIV. P. 56(e). The rule does not increase or decrease a
party's ultimate burden of proof on a claim. Rather, "the
determination of whether a given factual dispute requires
submission to a jury must be guided by the substantive
evidentiary standards that apply to the case." Anderson,
477 U.S. at 255-56.
Under the rule, a movant must be awarded summary judgment on
all properly supported issues identified in its motion, except
those for which the nonmoving party has provided evidence to show that a question of material fact remains. See Celotex,
477 U.S. at 324. Put another way, once the moving party has
properly supported its showing of no triable issue of fact and of
an entitlement to judgment as a matter of law, for example, with
affidavits, which may be "supplemented . . . by depositions,
answers to interrogatories, or further affidavits," id. at 322,
"its opponent must do more than simply show that there is some
metaphysical doubt as to the material facts." Matsushita,
475 U.S. at 586; see also Anderson, 477 U.S. at 247-48 ("By its
very terms, this standard provides that the mere existence of
some alleged factual dispute between the parties will not defeat
an otherwise properly supported motion . . . the requirement is
that there be no genuine issue of material fact.") (emphasis
What the non-moving party must do is "go beyond the pleadings
and by [its] own affidavits, or by the `depositions, answers to
interrogatories, and admissions on file,' designate `specific
facts showing that there is a genuine issue for trial.'"
Celotex, 477 U.S. at 324; see also Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990) ("The object of [Rule 56(e)] is
not to replace conclusory allegations of the complaint . . . with
conclusory allegations of an affidavit."); Anderson,
477 U.S. at 249; Big Apple BMW, Inc. v. BMW of N. Am., Inc.,
974 F.2d 1358, 1363 (3d Cir. 1992) ("To raise a genuine issue of material
fact . . . the [non-moving party] need not match, item for item,
each piece of evidence proffered by the movant" but rather must
exceed the `mere scintilla' threshold.), cert. denied,
507 U.S. 912 (1993). B. Plaintiff's Disability Discrimination Claim
Plaintiff brings her disability claim under the Rehabilitation
Act of 1973, 29 U.S.C. § 791, et seq. Under this act, federal
employers, such as the United States Postal Service, and
employers who receive federal funding are prohibited from
discriminating against individuals with disabilities in terms of
hiring, placement or advancement. See 29 U.S.C. 791(b);
Mengine v. Runyon, 114 F.3d 415, 418 (3d Cir. 1997). Generally,
courts analyze Rehabilitation Act claims by using the same
"standards applied under title I of the Americans with
Disabilities Act of 1990. . . ." 29 U.S.C. § 791(g).
In order to succeed on a disability discrimination claim under
the Rehabilitation Act, the plaintiff must first make a "prima
facie showing that reasonable accommodation is possible."
Shiring v. Runyon, 90 F.3d 827, 831 (3d Cir. 1996). The
plaintiff must demonstrate the following: "(1) that he or she has
a disability; (2) that he or she is otherwise qualified to
perform the essential functions of the job, with or without
reasonable accommodations by the employer; and (3) that he or she
was nonetheless terminated or otherwise prevented from performing
the job." Id. After the plaintiff satisfies this burden, the
burden then shifts to the employer to prove the affirmative
defense that the requested accommodation is either unreasonable
or would impose an undue hardship. Id.
The first inquiry before this Court is whether Plaintiff is an
individual with a "disability" as defined under the
Rehabilitation Act. A "disability" is an impairment, either
physical or mental in nature, that substantially limits at least
one major life activity of the individual. Toyota Motor Mfg.,
Ky., Inc. v. Williams, 534 U.S. 184, 195 (2002); see also
Kralik v. Durbin, 130 F.3d 76, 78 (3d Cir. 1997) (citing
42 U.S.C. § 12102(2) and 29 U.S.C. § 706(26)); Kelly v. Drexel
Univ., 94 F.3d 102, 105 (3d Cir. 1996); McDonald v.
Commonwealth of Pa., Dept. of Public Welfare, Polk Ctr., 62 F.3d 92, 95 (3d Cir. 1995). Major life activities refer to "those
activities that are of central importance to daily life." Toyota
Motor Mfg., 534 U.S. at 197. Functions that involve "caring for
oneself, performing manual tasks, walking, seeing, hearing,
speaking, breathing, learning and working, . . . as well as
sitting, standing, lifting and reaching" are deemed major life
activities. Kralik, 130 F.3d at 78-79.
The Supreme Court articulated that the standard for qualifying
as a disabled individual is a demanding one. Toyota Motor Mfg.,
534 U.S. at 197. The Court held that it is insufficient for an
individual to attempt to prove disability by merely submitting
evidence such as a medical diagnosis of an impairment. Id.
Instead, the individual must demonstrate that he or she has an
impairment "that prevents or severely restricts the individual
from doing activities that are of central importance to most
people's daily lives." Id. at 198. Moreover, the impact of the
impairment must be permanent or long term. Id.
In the present case, the Court concludes that Plaintiff fails
to make a prima facie case of disability discrimination.
Specifically, Plaintiff fails to demonstrate that she is disabled
for purposes of the Rehabilitation Act. Plaintiff relies upon the
Rehabilitation Job Offer she received on May 25, 1999 to
establish that she is disabled. (Pl.'s Br. at 12-13 ("[T]his
Court is not caused to scrutinize Plaintiff's qualifications for
disability. There is irrefutable proof at Exhibit 2 of
Plaintiff's Declaration that Susan Greb received a Rehabilitation
Job Offer with permanent medical restrictions due to an accepted
on the job injury [in] May . . . of 1999, which was accepted by
her."); see Pl.'s Decl., Ex. 2). However, the job offer merely
indicates that Plaintiff has medical restrictions which
necessitate certain work limitations. The medical records show
that Plaintiff underwent shoulder surgeries and continued to
experience pain afterward. It was determined that her right upper extremity was impaired by 21% and her left upper extremity by
19%. (Pl.'s Decl., Ex. 1). Additionally, Plaintiff offers
conclusory statements that she is "substantially physically
limited." (Pl.'s Decl., ¶ 12). Plaintiff contends that she has
trouble caring for herself, bathing, dressing, reaching, lifting,
sleeping and performing personal hygiene without assistance.
This evidence is insufficient to establish that Plaintiff
qualifies as an individual with a "disability" to invoke the
rigors of the Rehabilitation Act. Although the evidence suggests
that Plaintiff may have difficulty raising her arms beyond a
certain point and that she is not able to key for more than four
hours a day, Plaintiff fails to point to evidence demonstrating
that these impairments are anything more than mild limitations.
See Kelly, 94 F.3d at 106 (noting that impairments resulting
only in moderate restrictions are not disabilities).
Furthermore, even if Plaintiff is "disabled" under the
Rehabilitation Act, Plaintiff fails to show that she was
terminated or otherwise prevented from doing her job. The
evidence in the record demonstrates that on July 18, 2000,
Plaintiff was initially instructed to key on the mechanized
terminal. After Plaintiff informed Bonaparte of a medical note
indicating that she was unable to perform this task, she was
instructed not to work on the machine but to wait for further
instructions. While waiting, Plaintiff experienced chest pains
and was admitted to the hospital. Thereafter, Plaintiff did not
return to work, apparently because she did not feel that she
could work under the supervision of Bonaparte. These facts do not
demonstrate that Plaintiff was prevented from doing her job
because of her claimed disability. Instead, it demonstrates
Plaintiff's decision not to return to work because of the adverse
relationship she believed existed between herself and her
Accordingly, the Court concludes that Plaintiff fails to meet
her burden of making a prima facie case of disability
discrimination under the Rehabilitation Act. Consequently,
summary judgment must be granted in favor of Defendants as to this claim.
C. Plaintiff's Discrimination Claims Based on Gender and
Plaintiff also brings claims against Defendants for
discrimination based on gender and race under Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-1 et seq. Title VII
makes it unlawful for an employer to discriminate "against any
individual with respect to his 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). Specifically, Plaintiff contends that Bonaparte,
an African-American male, discriminated against her because she
is a white female.
Discrimination claims brought under Title VII must be analyzed
according to the burdenshifting framework which was set forth by
the Supreme Court in McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973), and later clarified in Texas Department of Community
Affairs v. Burdine, 450 U.S. 248 (1981), and St. Mary's Honor
Center v. Hicks, 509 U.S. 502 (1993). The framework consists of
three steps. First, the plaintiff must present sufficient
evidence to support a prima facie case of discrimination.
Hicks, 509 U.S. at 506. Once plaintiff establishes a prima
facie case, the burden of production then shifts to the
defendant, who must articulate a legitimate, nondiscriminatory
reason for their actions. Hicks, 509 U.S. at 507; Burdine,
450 U.S. at 254; McDonnell Douglas, 411 U.S. at 802. If the
defendant satisfies this burden, the court must proceed to the
third step. At this stage, the burden of production shifts back
to the plaintiff who must come forward with admissible evidence
showing that the defendant's articulated nondiscriminatory
reasons were not the true reasons for the adverse action, but
merely a "pretext for discrimination." Hicks,
509 U.S. at 507-08; Burdine, 450 U.S. at 253. Although the evidentiary
burdens shift between the plaintiff and the defendant, the "ultimate burden of persuading
the trier of fact that the defendant intentionally discriminated
against the plaintiff remains at all times with the plaintiff."
Burdine, 450 U.S. at 253.
In order to establish a prima facie case of discrimination, the
plaintiff must prove that: 1) she belongs to a protected class;
2) she was qualified for the position; 3) she suffered an adverse
employment action; and 4) the adverse action occurred under
circumstances that give rise to an inference of discrimination.
Burdine, 450 U.S. at 253-54; McDonnell Douglas,
411 U.S. at 802.
In Robinson v. City of Pittsburgh, 120 F.3d 1286, 1296-97 (3d
Cir. 1997), the Third Circuit described the type of adverse
employment decision that is actionable under Title VII. The
adverse employment action must be "sufficiently severe as to
alter the employee's `compensation, terms, conditions, or
privileges of employment,' or to `deprive or tend to deprive [him
or her] of employment opportunities or otherwise adversely affect
his [or her] status as an employee.'" Id. (citing and quoting
42 U.S.C. § 2000e-2(a)(1) and (2)). The court articulated that
not all workplace conduct that one may perceive as harassment
qualifies as an actionable adverse employment action. Id. at
1297. Moreover, "not every insult, slight, or unpleasantness
gives rise to a valid Title VII claim." Id. The Supreme Court
further characterized a tangible employment action as one that
"constitutes a significant change in employment status, such as
hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a
significant change in benefits." Burlington Indus., Inc. v.
Ellerth, 524 U.S. 742, 753-54 & 761 (1998).
Here, Plaintiff fails to make a prima facie case of
discrimination because she does not demonstrate that she suffered
an adverse employment action. Plaintiff contends that she
suffered numerous adverse employment actions on specific dates.*fn2
(Pl.'s Br. at 22). Generally, these dates correspond to the
following alleged incidences: 1) Bonaparte had a formal
discussion with Plaintiff for not accepting overtime duty on
March 5, 2000; 2) Plaintiff requested to speak with her union
representative on several occasions, but Bonaparte did not
immediately grant her request; 3) Bonaparte required Plaintiff to
specify where she was going before taking a bathroom break; 4)
while employees where waiting in the hallway to punch out for the
day, Bonaparte allegedly singled out Plaintiff for improperly
waiting; 5) Bonaparte refused to honor Plaintiff's request to
address her as "Mrs. Greb"; 6) Plaintiff was questioned by Postal
Inspectors after Bonaparte received a written threat; 7)
Bonaparte threw gloves on Plaintiff's desk when she informed him
that she had to wash her hands; 8) while Plaintiff was engaged in
conversation with her co-worker, Bonaparte yelled at her; and 9)
Plaintiff was instructed to sit in a chair for approximately an
hour after informing Bonaparte that she could not work on a
machine as indicated on her medical note. (See Pl.'s Decl.,
Exs. 9-16, 19).
The Court finds that none of these incidences amount to an
adverse employment action. Plaintiff does not contend that her
employer's actions altered her compensation or terms of
employment. Plaintiff does not allege that she was fired,
demoted, suspended, or denied a promotion. Instead, Plaintiff has
identified isolated, specific incidences that merely illustrate
an alleged difficult relationship that existed between Plaintiff
and Bonaparte. Such actions are not actionable under Title VII.
Consequently, Defendant's motion for summary judgment as to Title
VII claims must be granted and Plaintiff's claims be dismissed as a
matter of law because she fails to meet her burden of making a
prima facie case of employment discrimination.
D. Plaintiff's Hostile Work Environment and Constructive
i. Hostile Work Environment
Plaintiff further claims that she was subjected to a hostile
work environment. In order to succeed on a claim for hostile work
environment under Title VII, the plaintiff must demonstrate that
"the workplace [was] permeated with discriminatory intimidation,
ridicule, and insult that is sufficiently severe or pervasive to
alter the conditions of the victim's employment and create an
abusive working environment." Harris v. Forklift Sys., Inc.,
510 U.S. 17, 21(1993) (citations and quotations omitted). The
discrimination must be based on the plaintiff's race, gender,
religion, or national origin. Id. The plaintiff must prove that
the environment was both objectively and subjectively hostile or
abusive. Walton v. Mental Health Ass'n. of S.E. Pa.,
168 F.3d 661, 667 (3d Cir. 1999).
In assessing hostile work environment claims, the court must
examine the totality of the circumstances. These circumstances
include "the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or
a mere offensive utterance; and whether it unreasonably
interferes with an employee's work performance." Harris,
510 U.S. at 23; Walton, 168 F.3d at 667.
Here, although Plaintiff may succeed in proving that she
perceived the work environment to be hostile and abusive,
Plaintiff fails to prove the requisite objective component of the
inquiry. While Plaintiff may establish that her relationship with
Bonaparte was generally poor, she fails to assert facts that would allow a reasonable jury to conclude that
Bonaparte harassed her specifically because of her race, her
gender, or Plaintiff's claimed disability.
In the context of a hostile work environment based on gender,
the Third Circuit noted that "pervasive use of derogatory and
insulting terms relating to women generally and addressed to
female employees personally may serve as evidence of a hostile
environment." Andrews v. City of Phila., 895 F.2d 1469, 1485
(3d Cir. 1990). Notably, Plaintiff does not contend that
Bonaparte used any derogatory or insulting terms toward her.
Instead, Plaintiff complains that Bonaparte refused to call her
"Mrs. Greb" as she requested, but rather "Susan" or mocking
derivations of her name. The Court finds that these allegations,
even if true, are insufficient to establish a hostile work
Plaintiff also argues that Bonaparte discriminated against
women by requiring them to request specific permission to use the
bathroom and prohibiting them from bringing in handbags. (Am.
Compl. ¶ 60). Plaintiff, however, fails to provide the Court with
competent evidence that these policies were limited to women.
(See Greb Tr. at 80:9-18 (relying on hearsay evidence that men
were not required to report when they needed to use the
bathroom); see also Gaines Tr. at 21:8-22:4 (speculating as to
whether Bonaparte did not require men to report)). Rather, the
record shows that all employees, male or female, were required to
inform Bonaparte whenever they left the work room floor, and no
one was allowed to bring handbags or cell phones to the
machines.*fn3 (See Elovich Decl., Ex. MM at 68:6-15,
79:18-80:3; Busciano Decl. ¶¶ 7-8; Pascucci Decl. ¶ 3).
Lastly, Plaintiff makes the generalized allegation that
Bonaparte discriminated against the female workers in the CFS Unit. Significantly, however, Plaintiff
goes on to admit that Bonaparte did not discriminate against
black females. (Pl.'s Statement of Uncontested Facts, ¶¶ 83, 103;
see also Andrews Tr. at 104:15-20). This belies any assertion
that Bonaparte specifically harbored discriminatory animus
against women. Therefore, this argument is rejected. Accordingly,
the Court concludes that Plaintiff fails to demonstrate that
Bonaparte created a hostile work environment because of her
Plaintiff further asserts that a hostile work environment
existed because of her race and claimed disability. Again,
Plaintiff's claim is unavailing. Plaintiff belies her own
assertion that Bonaparte discriminated against white employees or
disabled persons by admitting that Joe Buscaino, a white employee
who also had limited duties because of medical conditions,
received better treatment than her. (See Pl.'s Decl. ¶ 14).
Plaintiff fails to identify any other evidence to substantiate
her generalized assertions. Based on this glaring absence of
evidence, the Court concludes that Plaintiff fails to meet her
burden of proving that a hostile work environment was created
because of her race or claimed disability.
Plaintiff also appears to rely on the incidences that took
place between March and July of 2000 to support her hostile work
environment claim. (See infra Part C). The alleged harassment
that occurred between March and July of 2000 is not numerous or
severe enough for a reasonable person to conclude that the
working environment was abusive or hostile. For example, throwing
gloves on a desk, not giving immediate permission to speak to a
union representative, and reprimanding an employee for waiting in
line before it was time to punch out lacks the severity or
pervasiveness of conduct that creates a hostile work environment.
This conclusion is further buttressed by Plaintiff's own
admission that she "became exceedingly sensitive to the?
extremely harsh and volatile sessions with Bonaparte." (Am. Compl. ¶ 29). Although Bonaparte's conduct
may have been offensive to Plaintiff, this by itself cannot ripen
into a Title VII violation. See Walton, 168 F.3d at 667 (noting
that the employer's offensive behavior toward the plaintiff does
not indicate that it was based on the plaintiff's disability). An
evaluation of the circumstances as a whole fails to convince this
Court that Bonaparte's alleged conduct meets the sufficiently
severe or persuasive standard set forth in Harris.
Therefore, based on an examination of the evidence contained in
the record, the Court concludes that Plaintiff has not asserted
enough facts to justify a conclusion that Bonaparte discriminated
against her because of her gender, race or claimed disability.
Accordingly, summary judgment must be granted in favor of
Defendants as to the hostile work environment claim.
ii. Constructive Discharge
When analyzing a constructive discharge claim, the relevant
inquiry is whether the "`conditions of discrimination' were so
intolerable that a reasonable person would have resigned."
Konstantopoulos v. Westvaco Corp., 112 F.3d 710, 718-19 (3d
Cir. 1997). The Third Circuit articulated factors the court
should consider when making such an inquiry. Clowes v. Allegheny
Valley Hosp., 991 F.2d 1159 (3d Cir. 1993). These factors
include whether: 1) the plaintiff was threatened with discharge;
2) the employer suggested resignation or retirement; 3) the
plaintiff was demoted, or her pay or benefits were reduced; 4)
the plaintiff was involuntarily transferred to "a less desirable
position"; 5) the plaintiff's responsibilities were altered; and
6) the plaintiff received unsatisfactory job evaluations. Id.
at 1161. Moreover, the Third Circuit intimated that if a
plaintiff fails to demonstrate a hostile work environment claim,
the plaintiff will likewise fail to establish the necessary
predicate for a constructive discharge claim. See
Konstantopoulos, 112 F.3d at 718. The Court concludes that Plaintiff fails to adduce sufficient
evidence to show that a reasonable person would have resigned
because the alleged discriminatory conduct was so intolerable.
The crux of Plaintiff's constructive discharge claim appears to
be that Defendants failed to grant her request to transfer to
another facility so that she would no longer be under the
supervision of Bonaparte. Plaintiff, however, fails to provide
either factual or legal support to establish that she was
entitled to such a transfer. Instead of being threatened with
discharge or encouraged to resign, the evidence shows that
Plaintiff remained entitled to her position as Modified Mark-up
Clerk Automat after the July 18, 2000 incident.*fn4
Significantly, it appears that the decision not to return to work
was Plaintiff's own choosing, rather than Defendants. Plaintiff
does not contend that her pay or benefits were reduced prior to
her claimed constructive discharge, nor that she received
unsatisfactory evaluations. Moreover, any contention that her
responsibilities were altered correlate with the factual
underpinning that she was on limited duty status. With regard to
her claim that she was forced to sit in a chair for approximately
an hour, rather than perform another task, the Court finds that
this does not support Plaintiff's claim that she was
constructively discharged from her position.
Accordingly, the Court concludes that there is no genuine issue
of material fact with respect to Plaintiff's constructive
discharge claim. Consequently, the Court grants summary judgment
in favor of Defendants as to this issue. E. Plaintiff's NJLAD Claims
Plaintiff appears to have also asserted claims under New Jersey
Law Against Discrimination ("NJLAD") against Defendants. (Pl.'s
Br. at 12, 34). However, Plaintiff has not advanced any arguments
in support of such claims. Nonetheless, these claims will also be
dismissed as a matter of law. Generally, claims brought under
NJLAD are subject to the same standards that are applicable in a
Title VII claim. Schurr v. Resorts Int'l Hotel Inc.,
196 F.3d 486, 498 (3d Cir. 1999). For the same reasons discussed above,
Plaintiff fails to assert cognizable claims of discrimination
based on age, gender and disability in violation of NJLAD.
Accordingly, the Court grants summary judgment in favor of
Defendants as to any NJLAD claims.
F. Plaintiff's Claim for Intentional Infliction of Emotional
Both parties moved for summary judgment with respect to
Plaintiff's claim for intentional infliction of emotional
distress. During the hearing that was held on October 29, 2004,
the Court granted summary judgment as to this issue in favor of
Defendants. (See Order dated Oct. 29, 2004 at 1). Accordingly,
Defendants' motion for summary judgment as to this issue is
denied as moot. III. CONCLUSION
For the foregoing reasons, Plaintiff's motion for summary
judgment is denied, and Defendant's cross-motion for summary
judgment pursuant to Federal Rule of Civil Procedure 56 is
granted. The Court dismisses Plaintiff's Amended Complaint in its
entirety. An appropriate form of order accompanies this