United States District Court, D. New Jersey
August 2, 2005.
SHAWNNA CHRISTOPHER, Plaintiff,
STATE OF NEW JERSEY, and DEPARTMENT OF HUMAN SERVICES, Defendants.
The opinion of the court was delivered by: KATHARINE HAYDEN, District Judge
[EDITOR'S NOTE: This case is unpublished as indicated by the issuing court.] OPINION
Pro se plaintiff Shawnna Christopher ("Plaintiff") filed this
civil action in May 2003 against the State of New Jersey, the New
Jersey Department of Human Services ("DHS"), Roman Lemega, and
Darin Schiffman. The Complaint alleges that defendants terminated
her employment at the Woodbridge Developmental Center ("WDC") on
the basis of her race and gender in violation of Title VII of the
Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a). The Complaint
alleges that defendants are liable for "hiring [her] for a high
position then lowering position once employed," and for
"requiring African Americans to have one year experience and not
white employees." (Compl. ¶ 9.) It also claims that DHS does not
hire African Americans for high positions and degrades females.
(Compl. ¶ 10.) On August 14, 2004, the Court dismissed the claims
against Lemega and Schiffman on the pleadings pursuant to Federal
Rule of Civil Procedure 12(c). Currently before the Court is a
motion for summary judgment filed by the remaining institutional
defendants. For the reasons that follow, defendants' motion is
granted. I. BACKGROUND
The facts are gleaned from the written submissions of the
parties, along with the exhibits and declarations submitted for
the Court's review.
This lawsuit arises out of plaintiff's employment with DHS for
approximately two months in 2002. On July 18, 2001, plaintiff
applied for a position with DHS, and set forth in her employment
application that she had a college degree from Kean University,
but had no employment history since age 18. (3/16/04 Christopher
Dep. at 100:14-21; Guz Decl., Employment Application, Exh. A.) In
August 2001, plaintiff received a letter stating she had met the
minimum requirements for the position of Senior Therapy Program
Assistant ("STPA"), part-time. (Guz Decl., 8/21/01 Letter, Exh.
B.) Plaintiff interviewed with Louis Arminio ("Arminio"), Staff
Clinical Psychologist in the Psychology Department of DHS, on
November 27, 2001 for a STPA position at WDC. (5/16/04
Christopher Dep. at 96:25-97:2; Guz Decl., Applicant Interview
Summary, Exh. C.) After the interview, Arminio completed an
"Applicant Interview Summary" and wrote that he would recommend
plaintiff for a part-time Behavior Modification Program
Technician ("BMPT") position or full-time STPA position and he
would only consider plaintiff for a full-time BMPT position if
the WDC was "needy" and there were no other STPA openings. (Guz
Decl., Applicant Interview Summary, Exh. C.) He also wrote that
her academics and experience were weak, but that she still might
be a motivated and capable worker. Id.
On December 7, 2001, plaintiff received a letter from Brenda
Baxter, the Manager of Human Resources. Baxter wrote that based
upon plaintiff's interview with the Director of Psychology at
WDC, one Dr. Lemega ("Lemega"), DHS was offering her a position
as a BMPT. (Guz Decl., 12/7/01 Letter, Exh. D.) This letter was facially
wrong in two respects: plaintiff had actually interviewed with
Arminio, and she sought and was interviewed for an STPA position.
Defendants admit the letter was incorrect. (Guz Decl. ¶ 18.)
Defendants also state that the BMPT position required one year of
work experience in rehabilitation or therapeutic treatment for
the mentally ill or developmentally disabled. (Lemega Decl. ¶
Notwithstanding Baxter's letter, DHS began preparing the
paperwork for plaintiff's employment as a full-time STPA (the
position she interviewed for), not as a BMPT. (Guz Decl.,
3/5/02 Letter, Exh. E.) On March 5, 2002, Barbara Danku
("Danku"), a personnel assistant at DHS, sent plaintiff a letter
congratulating her about her position as a full-time STPA and
informing her of a required orientation class. Id.
Plaintiff found out that the STPA position annually paid $7,000
less than the salary for a BMPT. (3/16/04 Christopher Dep. at
117:24-118:15.) While she was attending orientation during her
first week of employment, she went to Human Resources and spoke
to Beverly Guz ("Guz") regarding the "discrepancy" in the
positions referred to in the two letters. (3/16/04 Christopher
Dep. at 125:13-126:7.) After Guz said that she would look into
things, plaintiff admitted at her deposition that she told Guz,
"[Y]ou'll be sorry if you don't give me the BMPT position."
(3/16/04 Christopher Dep. at 126:3-126:7.) Plaintiff said she did
not "threaten" Guz, but meant she would fight for the position
"union-wise." (3/16/04 Christopher Dep. at 126:8-126:13.)
In the interim, Lemega was informed, erroneously, that
plaintiff would start as a full-time BMPT in his department.
(Lemega Decl., 3/8/02 Email, Exh. D.) In reviewing her
application, Lemega saw that plaintiff did not have the requisite
one year of work experience. Id. He emailed Danku, stating, "Confusion has set in, we got a call from your
office that [plaintiff] is starting work . . . as a BMPT full
timer. I checked interview application and she does not have
th[e] one year requirement for BMPT. I will be happy to take her
as a full time stpa/whatever you can do. We were also told that
she was assigne[d] to position # 640335 which was last held by
part timer . . . in a stpa-bm title." Id. Guz wrote back that
"STPA is the title we have on record for [plaintiff]." Id.
DHS allowed plaintiff to remain in the BMPT position. (Guz
Decl., 3/18/02 Inter-Office Memorandum, Exh. F.) Defendants
upgraded the offer from a part-time BMPT position (which
plaintiff was originally offered) to a full-time BMPT position.
Id. On March 11, 2002, plaintiff began working in Lemega's
department under the supervision of Darin Schiffman
("Schiffman"). (Guz Decl. ¶ 20.) Within the first week, plaintiff
received a memo confirming her position as a BMPT with a salary
of $34,450.23. (Guz Decl., 3/18/02 Inter-Office Memorandum, Exh.
F.) The memo also stated: "Please be advised that you are
considered provisional in this position. You must file for and
pass the Open Competitive examination for the title of Behavior
Modification Program Therapist to achieve permanency. Without
permanent status you may be displaced from this provisionally
appointed position." Id. Plaintiff signed the memo. Id.
Within the first week of employment, plaintiff asked for her
hours to be changed. (3/16/04 Christopher Dep. at 165:11-166:20;
Schiffman Decl. ¶ 19.) Plaintiff also asked for a transfer from
her designated work location because she was not getting along
with a co-worker, Tanya Townsend ("Townsend"). (5/19/04
Christopher Dep. at 43:23-44:10; Schiffman Decl. ¶ 21.) Plaintiff
requested that her supervisor Schiffman contact Lemega regarding
a transfer, but Schiffman refused, stating that she was "barking
up the wrong tree." (Schiffman Decl. ¶ 24.) Schiffman stated in his Affidavit that he meant that approaching
Lemega regarding a transfer was not the right way to solve any
problems Christopher might have with her work. Id. Schiffman also
stated that despite his attempts to explain the use of the
phrase, plaintiff "became visibly angry and used profanity to
express her anger." Id. Schiffman wrote in a memo to Lemega
that he offered to help resolve plaintiff's problems, but she
refused his help, becoming agitated, using profanities, and
demanding that he speak with Lemega. (Schiffman Decl. ¶ 25;
Schiffman Decl., 4/18/02 Memorandum, Exh. C.)
Schiffman stated in his declaration that plaintiff did not
complete her work in a timely fashion, and when reminded to turn
in her assignments she would become hostile, angry and
antagonistic. (Schiffman Decl. ¶¶ 12, 24, 27, 30.) Moreover,
plaintiff "repeatedly demonstrated that she failed to properly
comprehend her assignment; failed to complete assignments in a
timely manner; and regrettably made the same or similar
mistakes." (Schiffman Decl. ¶ 12.) Specifically, Schiffman stated
that plaintiff never completed her orientation assignments,
including a functional analysis, and failed to fill out her daily
schedule although she was repeatedly told how to do so.
(Schiffman Decl. ¶¶ 12-16.) According to Schiffman, plaintiff was
often absent from her required work area, and often came late to
department staff meetings or left them early. (Schiffman Decl. ¶¶
18, 20.) In addition, Schiffman stated that plaintiff often
behaved in an insubordinate and unprofessional manner. (Schiffman
Decl. ¶ 27.) He specifically noted that plaintiff repeatedly
photocopied payroll time sheets for her own records after being
told that copies could be made only before Schiffman signed them.
(Schiffman Decl. ¶ 28.) After the third time Schiffman told her
this, she reacted in a hostile manner and accused him of slander.
(Schiffman Decl. ¶ 29.) According to Schiffman, he tried to
clarify his statement, but plaintiff responded by shouting, "I hope you don't walk away from
everything in your life the way you are walking away from me."
(Schiffman Decl. ¶¶ 30-31.) Schiffman informed his supervisor,
Lemega, in writing about these incidents on April 17, 2002.
(Schiffman Decl., 4/18/02 Memorandum, Exh. C.)
Plaintiff testified about an incident on May 1, 2001, when
Lemega saw her in the hallway at a time when she was supposed to
be at a meeting, and asked her, "Don't you have someplace you're
supposed to be?" Plaintiff responded "I'm on my way to a
meeting," and Lemega stated, "Well, stop talking and get over
there." (5/19/04 Christopher Dep. at 56:10-57:18.) Plaintiff
testified that Lemega raised his voice, pointed his finger toward
the meeting room, and treated her "like a child." (5/19/04
Christopher Dep. at 57:12-60:6.)
The next day, on May 2, 2002, Lemega emailed Guz, stating that
"[a]fter discussing Ms. Christopher's progress with her immediate
supervisor, it was decided that she should be dismissed from
state service." (Lemega Decl., 5/2/02 Email, Exh. H.) That same
day, Human Resources sent a letter to plaintiff informing her
that her last working day would be May 17, 2002. (Guz Decl.,
5/2/02 Letter, Exh. I.)
Plaintiff filed an EEOC complaint on May 9, 2002. (Bariya
Affid., EEOC complaint, Exh. A.) The EEOC issued a right to sue
letter, and plaintiff timely filed her Complaint in this Court.
II. STANDARD OF REVIEW
Summary judgment is appropriate where the moving party
establishes that "there is no genuine issue as to any material
fact" such that she is "entitled to judgment as a matter of law."
Fed.R.Civ.P. 56(c). A factual dispute will not defeat a
summary judgment motion unless the dispute is both genuine and material. Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247-48 (1986). At the summary judgment
stage, the Court's "function is not [itself] to weigh the
evidence and determine the truth of the matter but to determine
whether there is a genuine issue for trial." Id. at 249. In so
doing, the Court must construe the facts and all inferences that
reasonably could be drawn therefrom in a light most favorable to
the non-moving party. Bailey v. United Airlines, 279 F.3d 194,
198 (3d Cir. 2002).
Since this is a motion for summary judgment, the Court will
examine the record in the light most favorable to plaintiff.
Carrasca v. Pomeroy, 313 F.3d 828, 833 (3d Cir. 2002).
Plaintiff's allegations charge the defendants with ethnic and
gender discrimination under Title VII. It is not clear from the
Complaint whether plaintiff intended as well to pursue a
disparate impact claim under Title VII, but to the extent she
seeks relief on that basis, the record does not establish the
necessary support. To establish a disparate impact claim, a
plaintiff must show that a particular employment practice creates
a disparate impact on a protected group through statistical
evidence. Wards Cove Packing Co., Inc. v. Antonio,
490 U.S. 307-08 (1989). Establishing this type of claim requires
statistical evidence of how the target group was treated and how
the target group should have been treated. Hazelwood Sch. Dist.
v. United States, 433 U.S. 299, 307-08 (1977) ("Where gross
statistical disparities can be shown, they alone may in a proper
case constitute prima facie proof of a pattern or practice of
discrimination."). The Complaint alleges that "African Americans
are not hired for high positions" and African Americans are
required to have one year of work experience while Caucasians are
not. Plaintiff has produced no statistical evidence in the
record. See McNeil v. McDonough, 648 F.2d 178, 182 & n. 9 (3d Cir. 1981) (noting that it is plaintiff's burden
to produce a meaningful statistical comparison in a disparate
It is also not clear from plaintiff's testimony whether she is
claiming retaliation. She testified that she considers what
happened to her during her employment at WDC resulted from her
complaining about her salary. (See 5/19/04 Christopher Dep. at
84:1-12.) But plaintiff has not indicated that she was engaged in
a protected activity or that any causal connection exists between
a protected activity and an adverse employment action. See
Goosby v. Johnson & Johnson Medical, Inc., 228 F.3d 313, 323
(3d Cir. 2000).
Therefore, to the extent plaintiff alleges disparate impact and
retaliation, the Court grants summary judgment in favor of
defendants on these claims.
Proceeding on the basis that plaintiff's civil rights claim is
based on ethnic and gender discrimination under Title VII, the
Court applies the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). As a
pre-requisite, a plaintiff must establish a prima facie case of
discrimination by showing that (1) she is a member of a protected
class; (2) she suffered an adverse employment action; (3) she was
qualified for the position; and (4) action occurred under
circumstances giving rise to an inference of discrimination.
Jones v. School District of Philadelphia, 198 F.3d 403, 410-11
(3d Cir. 1999).
Once the plaintiff establishes a prima facie case of
discrimination, the burden of production shifts to the employer
to "articulate some legitimate, nondiscriminatory reason for the
employee's rejection." Fuentes v. Perskie, 32 F.3d 759, 763 (3d
Cir. 1994.) If the employer satisfies its burden of articulating
a legitimate, nondiscriminatory reason for its action, "the
burden of production rebounds to the plaintiff, who must now show
by a preponderance of the evidence that the employer's explanation is pretextual." Id.
Throughout this burden-shifting paradigm the ultimate burden of
proving intentional discrimination always rests with the
To defeat a motion for summary judgment after the employer
satisfies its burden of production, "the plaintiff must point to
some evidence, direct or circumstantial, from which a factfinder
could reasonably either (1) disbelieve the employer's articulated
legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer's action." Id. at 764; see
also Sheridan v. E.I. DuPont de Numours & Co., 100 F.3d 1061,
1067 (3d Cir. 1996).
As an African-American female, plaintiff satisfies the
protected class requirement for purposes of a Title VII claim.
She claims she suffered two adverse employment actions: (1) her
position was downgraded, and (2) she was terminated. Defendants
dispute the first, but they concede that DHS terminated
plaintiff's employment at WDC. As such, plaintiff has established
that she was subject to an adverse employment action.
Plaintiff must also establish that she was qualified for the
position. Defendants maintain that plaintiff was not qualified
for the BMPT position because she "did not complete assigned
tasks, failed to follow instructions or meet deadlines, was
unprofessional and displayed inability to work with others."
(Def. Moving Br. at 17.) In addition to arguing that plaintiff
was not qualified for the BMPT position and thereby cannot
establish a prima facie case, defendants use this same basis
for their legitimate non-discriminatory reason to fire her. The
Court believes that the arguments about lack of qualification are
better suited to justify a decision to fire her as opposed to
establishing that she was not qualified in the first place.
Therefore, for purposes of this analysis, the Court finds that plaintiff has satisfied her
burden of demonstrating that she was qualified and the Court will
continue with the prima facie analysis.
As part of her prima facie case, plaintiff must also produce
evidence that the adverse employment action occurred under
circumstances giving rise to an inference of discrimination.
Defendants deny this, maintaining that plaintiff was unproductive
and performing at a level below other employees, and that
whatever problems she had at WDC were a result of her own poor
performance. Defendants point out that many other
African-American females were employed at WDC; in fact the
department where plaintiff was employed consisted of 22
African-Americans, 18 Caucasians, 5 Hispanics, and 2 Asians.
(See Guz Decl., 7/2/02 Email, Exh. J.) Also, there were 8
African Americans, 5 Caucasians, 5 Hispanics, and 1 Asian in the
position of BMPT. (Def. Moving Br. at 16.) Plaintiff's testimony
establishes that the individuals she claims she was treated
differently from were all women. (5/19/04 Christopher Dep. at
In light of this, finding that plaintiff has met all the
requirements of a prima facie showing is a stretch. However,
even had plaintiff made out a prima facie case, she does not
offer evidence of pretext to challenge the articulated
legitimate, nondiscriminatory reasons defendants have offered to
justify their actions. As stated in Fuentes, 32 F.3d at 763,
defendants have a "relatively light burden" in this respect, and
they rely on plaintiff's "numerous performance problems." (Def.
Moving Br. at 21.) The Court finds they have met their burden.
The analysis requires that in response that plaintiff show, by a
preponderance of the evidence, that defendants' explanation is
pretextual because a reasonable fact finder could either
disbelieve defendants' reasons for terminating her employment,
or conclude that discrimination was a motivating or
determinative cause of defendants' decisions. See Fuentes,
32 F.3d at 764. Plaintiff does not point to any facts to support either
finding, nor does the Court discern any. It appears that an
incident took place between plaintiff and Lemega on May 1, 2002
that, viewed in the light most favorable for plaintiff,
demonstrates highhandedness or plain rudeness on his part. Even
so, the record fails to demonstrate or raise an inference that
Lemega's actions were spurred by any racial or gender bias. Cf.
Lawrence v. F.C. Kerbeck & Sons, 2005 U.S. App. LEXIS 11709, *3
(3d Cir. June 16, 2005) ("Title VII is not violated by `mere
utterance of an . . . epithet which engenders offensive feelings
in an employee' or by mere `discourtesy or rudeness,' unless so
severe or pervasive as to constitute an objective change in the
conditions of employment.") (citing Faragher v. City of Boca
Raton, 524 U.S. 775, 787 (1998)).
Nor is there evidence that demonstrates nonmembers of the
protected class were given more favorable treatment. Plaintiff
offers nothing to establish that she was treated differently
based on her race or gender or that a Caucasian or male, in her
same position, would have been treated better. Nor does plaintiff
adduce evidence of pretext as to defendants' articulated
legitimate, nondiscriminatory reasons for their actions,
specifically her "numerous performance problems." (Def. Moving
Br. at 21.) Her conclusory assertion that she was a good worker
is inadequate to meet her burden of production and persuasion in
the face of documented justification.
Plaintiff does succeed in exposing an administrative error
regarding her offer (albeit she benefitted from it because she
came in at a higher salary), and arguably she exposed
discourtesy, rudeness, or dislike on the part of at least one of
her supervisors. But neither of these situations is sufficient to
meet the burden on plaintiff to adduce evidence of discrimination
unless one assumes that because plaintiff belongs to a minority
group and endured an arguably rude comment, discrimination is per se established, which is an
unacceptable mental leap. See Ness v. Marshall, 660 F.2d 517, 519
(3d Cir. 1981) ("a party resisting a (Rule 56) motion cannot
expect to rely merely upon bare assertions, conclusory
allegations or suspicions"); see also Jordan v. Allgroup
Wheaton, 218 F. Supp. 2d 643, 651-52 (D.N.J. 2002) (holding
against pro se plaintiff who claimed his insubordination and
disruptive and threatening behavior were provoked by "racists";
court noting that while plaintiff might have been singled out and
reprimanded by his Caucasian supervisor, and even though the
supervisor's decision may have been unfair or motivated by
personal dislike, there was no evidence of racial animus).
In responding to defendants' motion, plaintiff has not provided
specific facts showing that there is a genuine issue for trial,
as opposed to the mere allegations or denials that are in her
pleadings. Defendants are entitled to summary judgment. Their
motion is granted and an appropriate Order will be entered.
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