The opinion of the court was delivered by: Hillman, District Judge
This matter has come before the Court on defendant's motions for summary judgment on plaintiff's employment discrimination claims and on its counterclaim for breach of their confidentiality agreement. For the reasons expressed below, both of defendant's motions will be granted.
Plaintiff, Panda Allia, a Caucasian female, was a human resources executive at defendant, Target Corporation, from May 2003 until January 25, 2007. According to plaintiff, she was an exemplary employee who received nothing but positive reviews from superiors, co-workers, and subordinates. Nevertheless, she alleges, she was transferred and ultimately fired for several reasons: a) in order to appease Target's African-American employees at its Springfield, Pennsylvania store, who had filed a race discrimination complaint with the EEOC; b) because during the EEOC investigation she pointed out to Target's attorneys inconsistencies in a more-senior employee's testimony; c) because of her mental disability, which Target created; d) and because she filed criminal charges against an African-American co-worker for assault. Overall, plaintiff alleges that she, as a white employee, was the scapegoat for Target's race-relations problems, and Target has portrayed plaintiff as a poorly-performing racist in order to justify its discriminatory conduct in firing her. Plaintiff claims the defendant's conduct violated the New Jersey Law Against Discrimination ("NJLAD"), the Family Medical Leave Act ("FMLA"), and the Conscientious Employee Protection Act ("CEPA").
Target has moved for summary judgment on plaintiff's claims against it. Target argues that plaintiff has failed to provide evidence to support a prima facie case for her claims under the NJLAD, FMLA, and CEPA. Target also argues that even if she could establish a prima facie case for each claim, she cannot rebut Target's legitimate reasons for terminating her--namely, that she was an ineffective HR executive who was insensitive to minorities' concerns and who otherwise failed to take any accountability for her subpar job performance.
Target has also moved for summary judgment in its favor on its counterclaim against plaintiff for breach of contract. Target alleges that plaintiff breached the confidentiality agreement she signed when Target hired her by disclosing confidential and privileged information during this litigation. Target is also seeking an injunction to prevent plaintiff from further disclosing such information. Plaintiff has opposed both of Target's motions.
This Court has jurisdiction over plaintiff's federal claim under 28 U.S.C. § 1331, and supplemental jurisdiction over plaintiff's state law claims under 28 U.S.C. § 1367.
II. Summary Judgment Standard
Summary judgment is appropriate where the Court is satisfied that "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, 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." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R. Civ. P. 56(c).
An issue is "genuine" if it is supported by evidence such that a reasonable jury could return a verdict in the nonmoving party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A fact is "material" if, under the governing substantive law, a dispute about the fact might affect the outcome of the suit. Id. In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence "is to be believed and all justifiable inferences are to be drawn in his favor." Marino v. Industrial Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)(quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). Once the moving party has met this burden, the nonmoving party must identify, by affidavits or otherwise, specific facts showing that there is a genuine issue for trial. Id. Thus, to withstand a properly supported motion for summary judgment, the nonmoving party must identify specific facts and affirmative evidence that contradict those offered by the moving party. Anderson, 477 U.S. at 256-57. A party opposing summary judgment must do more than just rest upon mere allegations, general denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
A. Target's motion for summary judgment on plaintiff's claims against it Plaintiff has advanced four counts against Target: Count One - discrimination and retaliation against plaintiff in violation of NJLAD; Count Two - retaliation for exercising her FMLA rights; Count Three - retaliation under CEPA; and Count Four - fostering a hostile work environment in violation of NJLAD. Each category of claims will be addressed in turn.
1. Plaintiff's Race Discrimination Claim
Plaintiff claims that she was discriminated against by Target because she is white.*fn1 Typically, a prima facie case of unlawful discrimination in the workplace under the NJLAD is established when a plaintiff demonstrates by a preponderance of the evidence that he or she (1) belongs to a protected class, (2) applied and was qualified for a position for which the employer was seeking applicants, (3) suffered an adverse employment action and (4) after rejection the position remained open and the employer continued to seek applications for persons of plaintiff's qualifications. Erickson v. Marsh & McLennan, Co., 569 A.2d 793, 550 (N.J. 1990) (citations omitted).
When the plaintiff is not a member of a protected class, however, the plaintiff "must substantiate . . . that the background circumstances support the suspicion that the defendant is the unusual employer who discriminates against the majority." Erickson, 569 A.2d at 551 (internal quotations and citations omitted). This is because "when a complainant is a member of the majority and not representative of persons usually discriminated against in the work place, discrimination directed against that person is 'unusual.'" Id. Therefore, a court must apply a modified version of the familiar McDonnell Douglas burden-shifting analysis to claims of reverse discrimination in employment. Mosca v. Cole, 217 Fed. Appx. 158 (3d Cir. 2007) (citing Iadimarco v. Runyon, 190 F.3d 151, 158 (3d Cir. 1999); McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).
First, in order to establish a prima facie case of reverse discrimination, a non-minority plaintiff must show: (1) she was qualified for the job which she held; (2) despite her qualifications, she was terminated by her employer; and (3) plaintiff has presented sufficient evidence to allow a reasonable fact finder to conclude, given the totality of circumstances, that the employer treated plaintiff less favorably because of her race. Mosca v. Cole, 384 F. Supp. 2d 757, 765 (D.N.J. 2005), aff'd 217 Fed. Appx. 158 (3d Cir. Feb 14, 2007); see also Iadimarco, 190 F.3d at 161 (stating that a non-minority plaintiff first establish a prima facie case of discrimination by presenting "sufficient evidence to allow a fact finder to conclude that the employer is treating some people less favorably than others based on a trait that is protected").
Should a plaintiff establish a prime facie case, a presumption of discrimination is created and the burden of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for its actions. "The employer satisfies its burden of production by introducing evidence which, taken as true, would permit the conclusion that there was a nondiscriminatory reason for the unfavorable employment decision." Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994). This is a light burden. Id.
Once the employer has made its nondiscriminatory reason for termination, the burden of production shifts back to the employee to prove by a preponderance of the evidence that the reason articulated by the employer was merely a pretext for discrimination and not the true reason for the employment decision. Zive v. Stanley Roberts, Inc., 867 A.2d 1133, 1139 (N.J. 2005). To prove pretext, a plaintiff may not simply show that the employer's reason was false but must also demonstrate that the employer was motivated by discriminatory intent. Id. That burden merges with the plaintiff's ultimate burden of persuading the court that she or he was subjected to intentional discrimination, but the burden of proof of discrimination does not shift; it remains with the employee at all times. Id.
In this case, prior to determining whether plaintiff has established a prima facie case of reverse discrimination, the basis for her prima facie case must first be discerned. Although it is clear that plaintiff claims she was discriminated against because she is white, it is less clear what adverse employment action she is contending was a result of this alleged discrimination. Additionally, plaintiff seems to conflate her discrimination, retaliation, and hostile work environment claims, as well as her claim for disability discrimination. It appears that plaintiff claims that she suffered two adverse employment actions because of her race: (1) being transferred from the Springfield store to the Gloucester store,*fn2 and (2) being terminated from the Gloucester store.
With regard to the transfer, such a change in employment status could qualify as an adverse employment action. See Burlington Northern and Santa Fe Ry. Co. v. White, 548 U.S. 53, 71 (2006) (finding that the "reassignment of job duties is not automatically actionable," but transfer from a position that was "objectively considered a better job" to a position that was "by all accounts more arduous and dirtier" can be an adverse employment action); Durham Life Ins. Co. v. Evans, 166 F.3d 139, 152-53 (3d Cir. 1999) (citation and quotations omitted) ("The Supreme Court has defined a tangible employment action as 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."). In this case, plaintiff was transferred from the Springfield, Pennsylvania store in July 2006 to the Gloucester County store in Sicklerville, New Jersey. Plaintiff, however, does not explain how this was an adverse employment action. Plaintiff testified in her deposition that she asked for the transfer to the Gloucester store, which was only minutes from her home, rather than the forty-five-plus minute commute to ...