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Everett v. State

United States District Court, Third Circuit

May 28, 2013

WAYNE A. EVERETT, JR., Plaintiff,


MARY L. COOPER, District Judge.


The plaintiff, Wayne A. Everett, Jr., a former employee of the Special Investigations Division ("SID") of the New Jersey Department of Corrections ("NJDOC"), brings the action against the defendants, the NJDOC (pleaded as State of New Jersey (Department of Corrections)), George Hayman, Thomas Moran, Melinda Haley, Richard McCourt, and Lydell Sherrer. (See dkt. entry no. 1, Compl.) Everett alleges that the defendants unlawfully retaliated against him for exercising his rights under the Family Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq. ("FMLA"). (See id. at Count I, FMLA Claim.) He also alleges that the defendants unlawfully retaliated against him for unrelated whistle-blowing activity, in violation of the New Jersey Conscientious Employee Protection Act, N.J.S.A. § 34:19-1, et seq. ("CEPA"). (See id. at Count II, CEPA Claim.) The Court has jurisdiction over the FMLA Claim pursuant to 28 U.S.C. § 1331 and over the CEPA Claim pursuant to 28 U.S.C. § 1367(a).

The NJDOC, Hayman, Moran, Haley, and McCourt ("the Moving Defendants") now move for summary judgment in their favor and against Everett. (See dkt. entry no. 28, Mot.)[1] They argue that CEPA bars assertion of the FMLA Claim. (See dkt. entry no. 28-2, Br. in Supp. at 6-7.) They also argue that Everett has not produced sufficient evidence to establish a prima facie claim for retaliation under either the FMLA or CEPA. (See id. at 7-26.) Everett opposes the Motion. (See dkt. entry no. 35, Opp'n Br.)

The Court now resolves the Motion without oral argument. See L.Civ.R. 78.1(b). For the reasons that follow, the Court concludes that Everett has not established a prima facie claim of retaliation under the FMLA.[2] The Court will thus grant the Motion insofar as it concerns the FMLA Claim and enter judgment on that claim against Everett and in the Moving Defendants' favor.[3] The Court will also dismiss the CEPA Claim without prejudice to recommence that part of the action in state court. See 28 U.S.C. § 1367(c)(3).


Summary judgment is proper pursuant to Federal Rule of Civil Procedure ("Rule") 56 "if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a).

The movant carries the initial burden of demonstrating an absence of genuinely disputed material facts. See Celotex Corp. v. Catrett , 477 U.S. 317, 330 (1986). Material facts are those that "could affect the outcome" of the proceeding, and "a dispute about a material fact is genuine' if the evidence is sufficient to permit a reasonable jury to return a verdict for the non-moving party." Lamont v. New Jersey , 637 F.3d 177, 181 (3d Cir. 2011) (citation omitted). The Court, when determining whether the movant has carried this burden, must view the evidence in the light most favorable to and draw all reasonable inferences in favor of the non-movant. Scott v. Harris , 550 U.S. 372, 380 (2007); Wishkin v. Potter , 476 F.3d 180, 184 (3d Cir. 2007).

If the movant carries that burden, then the burden shifts to the non-movant to demonstrate the existence of at least one genuine issue for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp. , 475 U.S. 574, 586-87 (1986); Williams v. Bor. of W. Chester, Pa. , 891 F.2d 458, 460-61 (3d Cir. 1989). "Where the record taken as a whole could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Matsushita Elec. Indus. Co. , 475 U.S. at 587 (citation omitted) (internal quotation marks omitted). The non-movant must show that such issues exist by reference to the evidence of record. See Fed.R.Civ.P. 56(c)(1); Matsushita Elec. Indus. Co. , 475 U.S. at 586. The non-movant may not rely solely on argument, speculation or conjecture, or inferences that rise therefrom. See Lamont , 637 F.3d at 182 ("[T]he party opposing summary judgment... must point to evidence - whether direct or circumstantial - that creates a genuine dispute of material fact, and may not rely simply on the assertion that a reasonable jury could discredit the opponent[s'] account.'" (citation omitted) (latter alteration in original)); Kovalev v. City of Phila., 362 Fed.Appx. 330, 331 (3d Cir. 2010); Robertson v. Allied Signal, Inc. , 914 F.2d 360, 382 n.12 (3d Cir. 1990).

If the non-movant fails to show the existence of at least one genuine issue of material fact, then the burden shifts back to the movant to show an entitlement to judgment as a matter of law. A movant is entitled to such judgment if, at trial, no reasonable jury could find for the non-moving party. See Celotex Corp. , 477 U.S. at 325; In re Bressman , 327 F.3d 229, 238 (3d Cir. 2003). "[T]he burden on the moving party may be discharged by showing' - that is, pointing out to the district court - that there is an absence of evidence to support the nonmoving party's case' when the nonmoving party bears the ultimate burden of proof." Conoshenti v. Pub. Serv. Elec. & Gas Co. , 364 F.3d 135, 140 (3d Cir. 2004) (citation omitted).

The United States Court of Appeals for the Third Circuit has repeatedly cautioned parties opposing summary judgment to support their argument by reference to the record. See DeShields v. Int'l Resort Props. Ltd., 463 Fed.Appx. 117, 120 (3d Cir. 2012) ("If factual support for [the plaintiff's] claim existed in the record, it was incumbent upon her to direct the District Court's attention to those facts."); Perkins v. City of Elizabeth , 412 Fed.Appx. 554, 555 (3d Cir. 2011) ("[A] court is not obligated to scour the record to find evidence that will support a party's claims.... Courts cannot become advocates for a party by doing for that party what the party ought to have done for him or herself."). Indeed, that court has noted that "[j]udges are not like pigs, hunting for truffles buried in briefs." DeShields, 463 Fed.Appx. at 120 (quoting United States v. Starnes , 583 F.3d 196, 216 (3d Cir. 2009) (quoting United States v. Dunkel , 927 F.2d 955, 956 (7th Cir. 1991))) (alteration in original).


Everett began working for SID in 1993. (See dkt. entry no. 28-8, Ex. B to Kemether Certification, Everett Dep. at 23:12-14.) In May of 2006, he was promoted to the position of Assistant Chief Investigator. (See id. at 16:15-19, 21:15-24.) On or about February 1, 2009, following the retirement of his supervisor, the Chief Investigator, Everett "began supervising the day to day operations of the SID, in an acting capacity only, without the actual title or any increased compensation." (Dkt. entry no. 28-1, Moving Defs.' Statement of Facts ("SOF") at ¶ 18 (emphasis in original); see also Everett's Response to Moving Defs.' SOF at ¶ 18.)[4]

Everett submitted a request for "family leave" in 2009, during his time as the acting Chief Investigator of the SID. (See dkt. entry no. 28-21, Ex. R to Kemether Certification, Certification of Health Care Provider for Family Member's Serious Health Condition at 1.) The NJDOC approved Everett's request, and Everett took intermittent leave from the SID between February 28, 2009 and March 10, 2009. (See Everett ...

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