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Vanartsdalen v. Township of Evesham

August 2, 2007


The opinion of the court was delivered by: Irenas, Senior District Judge


Plaintiff commenced this action on March 17, 2005, against Defendants Township of Evesham ("Evesham"), Linda Nelson, and Diana Dicicco.*fn1 Plaintiff makes eight allegations against Defendants Evesham and Nelson: (1) discrimination based on national origin or ethnicity in violation of Title VII, 42 U.S.C. § 2000e, et seq.; (2) retaliation in violation of Title VII; (3) negligence under Title VII; (4) discrimination based on national origin or ethnicity in violation of the New Jersey Law Against Discrimination ("NJLAD"); (5) vicarious liability; (6) retaliation in violation of NJLAD; (7) retaliation in violation of New Jersey Conscientious Employee Protection Act ("CEPA"); and (8) intentional infliction of emotional distress.*fn2

This Court has jurisdiction over the federal claims pursuant to 28 U.S.C. § 1331, and over the state claims pursuant to 28 U.S.C. § 1367(a). Defendants move for summary judgment. For the reasons set forth below, the motion for summary judgment will be granted on all federal law claims and retaliation claims. The Court will decline to exercise supplemental jurisdiction over the remaining state law claims.


Plaintiff is a Mexican-American, who describes her ethnicity as Hispanic. (Df. Ex. A at 42:12-18). In September, 2006, Plaintiff applied for the position of violations clerk in the Township Municipal Court of Evesham Township. (Id. at 42:21-23). Kim Fullerton, the Court Administrator, interviewed her for the position. Ms. Fullerton learned of Plaintiff's national origin and ethnicity during the interview, and hired her shortly after the interview. (Id. at 43:5-46:8).

In December, 2002, Diana DiCicco, a Human Resources Manager, interviewed Plaintiff regarding complaints made by two former employees against Defendant Nelson. (Df. Ex. A at 89:15-21). Defendant Nelson was the Assistant Court Administrator and Plaintiff's supervisor. During the interview, Ms. DiCicco inquired whether Plaintiff ever experienced discriminatory treatment from Defendant Nelson, and Plaintiff said no. (Id. at 93:8-24).

A week after the interview, Plaintiff went on maternity leave. (Df. Ex. A at 89:15-16). During the leave, the Township restructured the positions within the Municipal Court system. This restructuring split Plaintiff's former position into two: data entry clerk and violations clerk. (Id. at 48:21-40:5). Ms. Fullerton visited Plaintiff at her home, and allowed Plaintiff to choose a position between the two. Plaintiff chose to return as a violations clerk. (Id. at 49:1-15).

Plaintiff returned from her maternity leave in March, 2003. While Plaintiff was on maternity leave, the Municipal Court hired two new employees, Elaine Lesher and Caroline Diaz. Because the restructuring changed certain office procedures, Defendant Nelson told Plaintiff on March 26, 2003, not to give the new employees any training or advice. (Df. Ex. D at p. 1 ¶ 2). Plaintiff claims that Defendant Nelson's tone was hostile and demeaning. (Id.). Plaintiff also claims that she did not receive training on the new procedures, whereas the two new employees received one-day training. However, Plaintiff concedes that this was not because of her national origin, ethnicity, or accent. (Df. Ex. A at 107:10-16).

On April 25, 2003, Plaintiff complained to Ms. DiCcico regarding Defendant Nelson. Plaintiff sent a three-page letter to Ms. DiCcico on April 28, 2003, memorializing the conversation on April 25th. (Df. Ex. C). Plaintiff complained of the following events: (1) on March 26, 2003, Defendant Nelson instructed Plaintiff not to give new employees any work related advice in a hostile and demeaning manner; (2) later that day, Defendant Nelson refused to apologize for the earlier incident and asserted her authority in a vicious manner; (3) Defendant Nelson continued to approach Plaintiff in the same demeaning manner; (4) Defendant Nelson failed to provide training to Plaintiff; (5) on April 22, 2003, Defendant Nelson embarrassed Plaintiff by impatiently dismissing her question; and (6) on April 25, 2003, Defendant Nelson reprimanded Plaintiff for giving the wrong advice to a new employee. (Df. Ex. C).

The April 28, 2003, letter did not include any allegations of discrimination based on national origin or ethnicity. Plaintiff also testified in her deposition that Defendant Nelson's treatment towards her is similar to the manner in which Defendant Nelson treated other employees.*fn3 (Df. Ex. A at 130:13-22).

On May 12, 2003, Plaintiff, her union representation, Defendant Nelson, Ms. Fullerton, and Ms. DiCicco held a meeting as result of the April 28, 2003, letter. (Df. Ex. A at 136:22-138:23). According to Plaintiff, the meeting "focused on [Defendant Nelson's] being rude and the excuse was the training." (Id. at 141:24-25). Plaintiff did not raise any concern regarding national origin or ethnicity discrimination. (Id. at 141:18-22). This meeting reached a resolution satisfactory to Plaintiff.*fn4 (Id. at 138:11-139:6).

Plaintiff testified that after the meeting, Defendant Nelson began sending her emails instead of engaging her in conversation as before. (Df. Ex. A at 144:6-16). Plaintiff believed Defendant Nelson was trying to document communications with her. (Id.). Plaintiff also testified that these emails tend to exaggerate her mistakes. (Id. at 146:13-23).

Plaintiff claims that Defendant Nelson criticized her Spanish accent on two occasions. On June 23, 2003, Plaintiff was speaking with an agitated person and was trying to explain the procedures of the Municipal Court. (Df. Ex. A at 59:10-15). Plaintiff claims that she heard Defendant Nelson instructing Elaine Lesher to help the person because he could not understand Plaintiff. (Id. at 59:17-21). However, the person understood Plaintiff when she asked him about her speech. (Id. at 60:1-5). Plaintiff testified that she does not recall whether Defendant Nelson mentioned her Spanish accent during this confrontation. (Id. at 60:6-18).

The second incident occurred on September 3, 2003. According to Plaintiff, she was helping someone at the window. Once again the customer was agitated. (Df. Ex. A at 62:19-63:7). Plaintiff claims that Defendant Nelson was far from the window, but saw that a customer was upset and assumed that Plaintiff's poor English was the reason ...

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