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Peikin v. Kimmel & Silverman

August 21, 2008


The opinion of the court was delivered by: Hon. Jerome B. Simandle


Plaintiff Vivian Peikin, a former employee of Defendant Kimmel & Sulverman, P.C. ("Kimmel & Silverman"), a Pennsylvania professional corporation, filed this lawsuit against her former employers, alleging that she was harassed and discriminated against on account of her age and gender. Presently before the Court is the motion of Defendants [Docket Item 7] seeking (1) dismissal or summary judgment as to Plaintiff's New Jersey Law Against Discrimination ("NJLAD") claims, and (2) transfer of the remainder of Plaintiff's claims to the United States District Court for the Eastern District of Pennsylvania. For the reasons set forth below, the Court will grant Defendants' motion for summary judgment as to Plaintiff's NJLAD claims, and will transfer this matter to the Eastern District of Pennsylvania.


Plaintiff is a Pennsylvania resident and former employee of Kimmel & Silverman, a Pennsylvania professional corporation. (Compl. ¶ 1.) Plaintiff was hired as an associate attorney by Kimmel & Silverman in July 1999, and she worked at the firm's office in Ambler, Pennsylvania until October 20, 2006, when she was terminated.*fn1 (Id. at ¶ 33; Graham Aff. ¶¶ 8, 17.) At the time of Plaintiff's termination, she was fifty-eight years old, which made her the oldest female attorney at the firm. (Compl. ¶¶ 34-35.)

Plaintiff alleges that over the course of her employment at Kimmel & Silverman, she was subjected to repeated acts of harassment and discrimination on account of her age and gender, and that the cumulative effect of these acts created a hostile working environment. (Id. at ¶ 27.) The specific discriminatory acts Plaintiff complains of include her allegations that: Defendants Kimmel and Silverman engaged in sexual relationships with younger female employees and then gave preferential treatment to those employees, (id.); Defendants Kimmel and Silverman excluded her from meetings, slammed doors in her face, and screamed at her, (id.); Defendants Kimmel and Silverman made inappropriate sexual jokes in her presence, (id.); Defendants Kimmel and Silverman relegated female associates in the Ambler, Pennsylvania office, but not their male counterparts, to undesirable office space in the basement, (id.); Defendant Kimmel stuck his hand down the pants of one female employee and sent sexually inappropriate emails to another female employee, (id. at ¶ 28); Defendant Silverman took Plaintiff to a strip club in New Orleans and purchased lap dances for female associates at the club, (id. at ¶ 29); and Defendant Silverman encouraged a male associate to expose himself during a dinner at a conference in San Francisco. (Id.)

Plaintiff alleges that on September 13, 2006, she received an "extremely hostile" email from Defendant Kimmel. (Id. at ¶ 30.) Shortly thereafter, Plaintiff initiated a conversation with Defendant Silverman about the email in which she expressed concerns that she was being discriminated against and subjected to a hostile work environment; Defendant Silverman informed Plaintiff that she should speak with Mr. Kimmel about her concerns. (Id. at ¶ 31.) Thirty minutes after she spoke with Defendant Silverman, Defendant Kimmel summoned Plaintiff to his office, where he "berated Plaintiff for her complaint and verbally attacked her." (Id. at ¶ 32.) Roughly one month later, on October 20, 2006, Plaintiff was terminated without explanation and was replaced by a twenty-eight-year-old male attorney. (Id. at ¶¶ 33, 36.)

While none of the discriminatory conduct that Defendants are alleged to have committed took place in New Jersey, Plaintiff alleges that she experienced the effects of Defendants' conduct in New Jersey, on account of the fact that the majority of her work at Kimmel & Silverman took place in New Jersey. (Peikin Aff. ¶ 4.) According to Plaintiff, she worked four out of five days each week in New Jersey, (id.), with approximately 90% of her work centering around New Jersey-based clients and cases. (Id. at ¶ 5.)

Plaintiff filed her Complaint in this action on November 16, 2007 [Docket Item 1]. The Complaint alleges that Kimmel & Silverman discriminated against, harassed, and retaliated against Plaintiff in violation of Title VII (Count I), the Age Discrimination in Employment Act (Count II), and the NJLAD (Count III); and that Defendants Kimmel and Silverman "aided, abetted, incited, compelled and/or coerced Defendant Law Firm in the hostile work environment, discrimination and retaliation to which Plaintiff was subjected" in violation of the NJLAD (Count IV). (Compl. ¶ 65.) Defendants subsequently filed the motion presently under consideration, to the merits of which the Court now turns.


In their motion, Defendants seek two forms of relief. First, Defendants have moved for dismissal and/or summary judgment as to Plaintiff's NJLAD claims, arguing that because Plaintiff was not employed in New Jersey and because none of the allegedly discriminatory conduct took place in New Jersey, New Jersey law does not govern Plaintiff's discrimination claims. In addition, Defendants have moved to transfer this case to the Eastern District of Pennsylvania, arguing, first, that venue in this forum is improper under 42 U.S.C. § 2000e-5(f)(3), and, alternatively, that the case should be transferred pursuant to 28 U.S.C. § 1404(a). The Court addresses these matters in turn below.

A. NJLAD Claims

1. Standard of Review

The Court first addresses the standard of review that governs its analysis of Defendants' motion. Defendants have moved for dismissal pursuant to Fed. R. Civ. P. 12(b)(6) and/or for summary judgment pursuant to Fed. R. Civ. P. 56. Because the parties' motion practice raises matters "beyond the face of the pleadings," Robinson v. Dalton, 107 F.3d 1018, 1022 (3d Cir. 1997), the Court will treat Defendants' submission as a motion for summary judgment.

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. 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, "the nonmoving party's ...

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