The opinion of the court was delivered by: Katharine S. Hayden, U.S.D.J.
This matter was opened to the court upon separate motions for summary judgment by defendant Essex County Division of Welfare (―ECDW‖) (D.E. 34) and defendant Communication Workers of America, Local 1081 (―CWA‖) (D.E. 35). Although months have passed since these motions were filed, plaintiff Tangela Moore, proceeding pro se, has not submitted opposition papers to either of them, even after twice receiving a 20-day enlargement of time for filing (D.E. 41).
Summary judgment is appropriate if, construing ―all of the facts and inferences in the light most favorable to the nonmoving party,‖ United States v. Carrigan, 31 F.3d 130, 133 (3d Cir. 1994), ―the pleadings, the discovery and the disclosure materials on file, and any affidavits show that there is no genuine issue as to any material fact and that the movant is entitled to judgment as a matter of law.‖ Fed. R. Civ. P. 56(c). ―An issue is genuine only if there is a sufficient evidentiary basis on which a reasonable jury could find for the non-moving party, and a factual dispute is material only if it might affect the outcome of the suit under governing law.‖ Kaucher v. County of Bucks, 455 F.3d 418, 423 (3d Cir. 2006) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). Of course, the district court may not resolve factual disputes or make credibility determinations at the summary judgment stage. Big Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992).
Here, Moore has not responded to either of defendants' summary judgment motions and has submitted no evidence or statement of facts. Local Civil Rule 56.1 requires that ―[o]n motions for summary judgment, each side shall furnish a statement which sets forth material facts as to which there exists or does not exist a genuine issue.‖ L. Civ. R. 56.1 (emphasis added). In Anchorage Assoc. v. Virgin Islands Bd. of Tax Review, the Third Circuit pointed out the importance of this rule of procedure:
The rule means that the opposing party, by failing to file a written objection and memorandum as required by the rule, waives the right to controvert the facts asserted by the moving party in the motion for summary judgment and the supporting material accompanying it. 922 F.2d 168, 175 (3d Cir. 1990) (quoting Jaroma v. Massey, 873 F.2d 17, 21 (1st Cir. 1989)). Notwithstanding, where, as here, a party does fail to oppose a motion for summary judgment, summary judgment may only be entered ―if appropriate.‖ Id.; see Fed R. Civ. P. 56(e) (―If the adverse party does not respond, summary judgment, if appropriate, shall be entered against the adverse party.‖). Accordingly, the Court reviews the merits of defendants' submissions.
Moore's one-page complaint asserts as her ―cause of action‖ that ―I was unjustly removed from my position based on my race.‖ (D.E. 1.) ―I demand immediate reinstatement to my position, the removal of the responsible parties, payment of all unpaid bills, and back pay.‖ (Id.) In answers to interrogatories, Moore set forth the factual basis for her allegations as follows:
The factual basis for the complaint is that Essex County Division of Welfare made it clearly impossible for me to do my job as a Family Service Worker in an effective manner. I was striped [sic] of the right to schedule/reschedule my own client appointments. All of my client slips were routed to me by management. I was to brief my supervisor after seeing each client with how my interview was conducted before I could see the next client. My schedule was changed from 7:30 to 8:30. I was given a larger share of the work for the vacant districts. All of these things were done collectively by Norah English, Corinne Massa, Linda Bass, Elaine Kolstein, Christine Hayes-Julien, and Paula Crowley all from Division Management and with full knowledge of David Weiner[,] Local President. There were several things said by each party on several different occasions and I am unable to recall everything. (D.E. 34-3, p.30.)
In their motions, the defendants assert facts disputing Moore's allegations. On March 24, 2009, Magistrate Judge Shwartz granted Moore an extension to oppose on or before April 13, 2009. (D.E. 37.) When Moore failed to file papers, the Court granted a further extension to May 20, 2009. Given her failure to oppose to date, the Court deems that Moore has admitted the relevant facts as set forth by defendants.
A. Facts Admitted as to ECDW's 56.1 Statement and Record Support
Defendant ECDW sets forth its statement of uncontroverted material facts:
On March 21, 2006, this employee [Tangela Moore] was issued a Preliminary Notice of Disciplinary Action. Said Preliminary Notice of Disciplinary Action charged complainant with incompetency, inefficiency and failure to perform duties, conduct unbecoming a public employee and neglect of duty. This employee, a Family Service Worker, employed by the Division of Welfare, Department of Citizen Services, continuously exhibited unprofessional, belligerent and disrespectful behavior toward supervisors, co-workers and clients. Moreover, there were numerous client complaints alleging unprofessional behavior. This employee also harassed and provoked her co-workers which created tension and hostility in her unit and a hazardous workplace condition. This employee had chronically outstanding paperwork and errors in her work. Several complaints were filed by Plaintiff's co-workers regarding her unprofessional demeanor and failure to complete work. Accordingly, the County of Essex determined that this employee's actions arose to the level of failure to perform duties, conduct unbecoming a public employee, and neglect of duty. Furthermore, it was determined that the employee's suspension and ultimate removal from employment was necessary to maintain the efficient operation of the Essex County Department of Citizen Services. Thereafter, a departmental disciplinary hearing was scheduled for April 10, 2006. Said hearing was subsequently adjourned for the parties to enter into settlement discussions. On June 15, 2006, in lieu of proceeding with the disciplinary hearing, Ms. Moore submitted a letter of resignation to the County of Essex effective March 17, 2006. Thereafter, on September 5, 2006, Ms. Moore filed a Charge of Discrimination with the Equal Employment Relations Commission. Said Charge of Discrimination was subsequently dismissed by the EEOC and the within litigation followed. (Def. ECDW Statement of Uncontroverted Material Facts (citations omitted).) The record supports ECDW's account. On Moore's performance appraisal covering the period from July 1, 2005 to December 31, 2005, supervisor Paula Crowley stated that Moore ―has had numerous complaints from clients regarding her unprofessional demeanor and has had boisterous exchanges with me and other staff. Ms. Moore has delayed processing/completing cases despite directives from me, Ms. Massa and the 9th floor.‖ (Essex Cty.'s Exh. B to Mot. Summ. J.) In that performance review, Moore was rated as not meeting standards in ―quality of work,‖ ―attitude toward work,‖ ―personal relations,‖ and ―professional interest.‖ (Id.)
In a February 23, 2006 memorandum entitled ―Insubordination -- T. Moore, Worker DC -- 12,‖ supervisor Corinne Massa wrote:
A conference was held on 2/22/06 at 2:30 P.M., regarding Ms. T. Moore's insubordination to her immediate supervisor Ms. Elaine Kolstein. (Present: T. Moore, E. Kolstein, C. Massa, B. Russo).
Ms. Kolstein's complaint is that when she approaches Ms. Moore regarding a question or a directive, Ms. Moore interprets it as a confrontation and feels personally insulted and claims that the agency in general is undermining her ability by monitoring her slips and supervisor having to reschedule her missed redetermination appointments. Ms. Moore feels harassed and criticized when given directives and when Ms. Kolstein asks her for an explanation.
Ms. Moore's responses to her supervisor are argumentative, therefore, Ms. Moore retaliates by completely ignoring her supervisor to the point whereby she turns and walks away or refuses to respond in a professional manner.
She was instructed by me that when she feels combative she should take a brief (5 min.) ―time out,‖ to avoid any further arguments with her supervisor and disruption to her fellow employees.
(Essex Cty.'s Exh. B to Mot. Summ. J.) As part of its submissions, Essex County included a handwritten complaint letter from a welfare client, a portion of which stated:
I am deply [sic] hert [sic] of the abuse I have endured at the hands of my case worker Mrs. Angela Moore at the Newark public welfare office. I have never gave [sic] this woman any reson [sic] at all to treat me in such a way . . . I recognize this type of abuse because I am a domestic violence victim many time [sic]. Mrs. Moore has been ignoring me[;] disrespected my character by litteraly [sic] pusshing [sic] me out of the office on more than two occasions she has ensulted [sic] me and has hung up the phone on me in the middle of a sentence numerous times[.] I feel like crying[.] I feel humiliated[.] I cant [sic] belive [sic] a person her position whome [sic] has to deal w/ a lot of people can have very poor social skill[s.] (Essex Cty.'s Exh. B to Mot. Summ. J.)
Furthermore, at her deposition, Moore was unable to cite any facts supporting her assertion that she was the victim of discrimination by ECDW:
Q: Under ―Cause of Action‖ you indicate that you were unjustly removed from your position based on race. Is that accurate?
Q: Can you please tell us what documentary or other evidence you have to support your claim that you have been removed from your position at the County of Essex based on race?
A: As I stated, I have no supporting documents because I was -- being the fact that I was so abruptly removed, I had no time to gather my belongings in my condition, but up until I guess February there were, you know --
Q: February of what year?
A: February of 2006. There were -- you know, I was getting my cases passed without an issue. Everything -- my -- you know, I had no overdues, I was doing my job effectively and then all of a sudden everything just did a total 180. I could no longer schedule my own clients, I could no longer reschedule appointments, I couldn't see my clients without supervisory input, I had to constantly report back after seeing every client. I was -- I had computer issues and I was forced to move in order to conduct business which they knew I couldn't do based on the fact of my pregnancy being high risk and that I had a lot of back problems at that time. So it was made extremely difficult. There were plenty of clients that I tried to interview that asked for supervisory input and when I would go ...