United States District Court, D. New Jersey
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For SHERYL M. GOSKI, Mediator: SHERYL MINTZ GOSKI, LEAD ATTORNEY, Law Offices of Sheryl Mintz Goski PA, Florham Park, NJ.
For AMINA MADDOX, Plaintiff: CHRISTOPHER C. ROBERTS, EAST ORANGE, NJ.
For CITY OF NEWARK, JULIEN NEALS, ANNA PEREIRA, Defendants: MICHAEL A. D'ANTON, SR., CHASAN LEYNER & LAMPARELLO PC, SECAUCUS, NJ.
For IVAN WHITTENBURG, Defendant: DOMENICK CARMAGNOLA, CARMAGNOLA & RITARDI, LLC, MORRISTOWN, NJ.
For CITY OF NEWARK, ANNA PEREIRA, JULIEN NEALS, Counter Claimants: MICHAEL A. D'ANTON, SR., CHASAN LEYNER & LAMPARELLO PC, SECAUCUS, NJ.
For IVAN WHITTENBURG, Counter Claimant: DOMENICK CARMAGNOLA, CARMAGNOLA & RITARDI, LLC, MORRISTOWN, NJ.
For AMINA MADDOX, Counter Defendant: CHRISTOPHER C. ROBERTS, EAST ORANGE, NJ.
Hon. Kevin McNulty, United States District Judge.
This matter comes before the Court on the motion of Defendant Ivan Whittenburg (ECF No. 61) and the motion of Defendants City of Newark, Julien Neals, and Anna Pereira (ECF No. 62) for summary judgment. The Complaint, filed by the Plaintiff, Amina Maddox, essentially alleges that she was fired from her position as Assistant Corporate Counsel for the City of Newark on a discriminatory basis. For the reasons set forth below, Defendants' motions are GRANTED.
The dueling factual allegations in this employment discrimination case are complex and intricate, although not all of the contested facts are relevant. To highlight the central issues, I offer some general discussion at the outset.
Discriminatory termination cases, when they fail, can do so at any one of several junctures. The employee may not have suffered as a result of occupying a protected status (such as race or religion), or engaging in protected activity (such as First Amendment expression). For example, an allegation of a hostile work environment may fail because the evidence shows only isolated incidents, however objectionable. Having passed that hurdle, the employee may fail to demonstrate that an act of discrimination played the necessary causal role in her firing. Consider, for
example, a case in which the person who heard a protected complaint or voiced discriminatory sentiments did not participate in the termination decision. The employee would then be relegated to some other, less direct theory of proximate cause. Finally, and relatedly, the employer may meet its burden of establishing that the stated, valid reason for termination was genuine, and not a pretext for discrimination.
Maddox, an assistant corporate counsel for the City of Newark, was fired in January 2009. Her primary claim here is based on a September 2007 incident in which a supervisor, Whittenburg, made remarks that were offensive to a Muslim co-worker, Safdar. Maddox says she was fired because she spoke out about the incident. Her evidence shows that Safdar reported the incident to a supervisor, apparently without any repercussions. Maddox herself merely answered a supervisor's questions, and reluctantly at that.
Whittenburg allegedly retaliated against Maddox, however, by assigning her an unfair share of work. After she complained about her workload, there was a supervisory review of her files. All employees were admittedly subjected to such a file review; Maddox's claim of discrimination is that her review was moved up to the earliest group. What that review uncovered was neglect of duty, including the failure to process checks received from the bankruptcy court. It was for that and other stated reasons that she was dismissed in January 2009.
Whittenburg played no part in the Corporation Counsel's decision to fire Maddox. To connect the September 2007 Safdar incident to her January 2009 dismissal, Maddox resorts to less direct theories of causation, centered around the 2008 review of her files. She complains of discrimination via overwork, but submits no evidence of other employees' workloads from which discrimination or unfairness could be inferred. She complains of being placed in the first group of file reviews, but does not state why that was impermissible or demonstrate that the timing of her review prejudiced her. Causation cannot here be inferred from temporal proximity; the file review occurred over a year after the September 2007 Safdar incident, and her dismissal three months after that. In short, the file review, early or late, does not establish a proximate-cause link between the Safdar incident and Maddox's dismissal.
The City submits persuasive evidence of a neutral reason for Maddox's dismissal: substandard job performance, including absenteeism, uncashed checks in case files for which Maddox was responsible, and failure to make court filings. In response, Maddox offers argumentation, but no evidence, that those concerns were pretextual.
The statutes that Maddox cites do not protect employees from actions that are harsh, unwise, or even mistaken. What is required is a showing that her dismissal was unlawfully discriminatory or retaliatory. She has not made such a showing.
II. BACKGROUND 
Amina Maddox brought this wrongful termination case against her former employer,
the City of Newark (" Newark" ) and several supervisory employees in the Corporation Counsel's Office where she worked: Julian Neals (former Corporation Counsel), Anna Pereira (former First Assistant Corporation Counsel), and Ivan Whittenburg (Real Estate Section Chief).
Maddox worked as an Assistant Corporation Counsel for the City of Newark from 2007 to 2009. DSMF ¶ ¶ 2, 94. She is African-American and a practicing Christian. Id. ¶ ¶ 7-8. Maddox was admitted to the Bar of the State of New Jersey in January of 1998. DSMF ¶ 1 (citing Ex. A, Pl. CV). She clerked for Hon. Rosemary Gambardella, the former Chief Judge of the United States Bankruptcy Court for the District of New Jersey. Id. ¶ 4. From April 1999 to May 2007, Maddox worked on bankruptcy matters as a Deputy Attorney General for the State of New Jersey. Id. ¶ 3.
Neals was the City's Corporation Counsel from February 1, 2008, to November 15, 2010. Id. ¶ 11. Pereira, Neals's successor as Corporation Counsel, served as First Assistant Corporation Counsel from September 22, 2008, to November 15, 2008. Id. ¶ 12. Whittenburg was hired as an Assistant Corporation Counsel on March 12, 2007. Id. ¶ 18. He became the Assistant Section Chief of the Real Estate Section on July 2, 2007, and the Section Chief on September 1, 2007. He held that position until the Real Estate Section was eliminated in 2010. At the time of the filing of this motion, he served as Assistant Corporation Counsel in the Litigation Section. Id. ¶ ¶ 18-20. All of the individual Defendants had supervisory authority over Maddox in the Law Department.
B. Facts of the Case
Newark hired Maddox as an Assistant Corporation Counsel on June 4, 2007. Id. ¶ ¶ 2, 6. (citing Ex. B, Pl. Performance Eval; Ex. D, Pl. Offer of Employment). Defendants posit that Maddox was hired because of her experience in bankruptcy law. Id. ¶ 24. Maddox was expected to take over Newark's bankruptcy cases from Ayesha Freeman, the Section Chief of the Real Estate Section, who was about to retire. Id. ¶ ¶ 17, 25 (citing Ex. G, Pl. Tasks and Standards).
Maddox asserts that she was employed pursuant to a collective bargaining agreement between AFL-CIO Local 103 and Newark, and could only be terminated for good cause. RSMF ¶ 5. Defendants assert that Maddox was hired as an at-will employee and did not have tenure. DSMF ¶ 5 (citing Ex. C, Newark Ordinances Ch. 6). Section 2:6-5.1 of the Newark Ordinances states that assistant corporation counsel and other Law Department staff serve " at the pleasure of the Corporation Counsel." Ex. C.
1. Work Load and Performance
Maddox and the Defendants disagree as to various issues regarding her work load and performance. Maddox asserts that Defendant Whittenburg unfairly distributed work assignments to her. RSMF ¶ 67. Defendants assert that Maddox was assigned cases based on her areas of expertise: bankruptcy and real estate. DSMF ¶ 67 (citing Ex. N, Foster Memos to File; Ex. O, Whittenburg Dep.); DSMF ¶ 29 (citing Chandy Cert.). Maddox says that she was " never told" that she was the bankruptcy attorney for Newark until November 2008. RSMF ¶ 35. There is no dispute, however, that she was assigned to a large real estate foreclosure project and then was responsible for a number of bankruptcy files.
Maddox had die " ultimate responsibility" for handling cases assigned to her. DSMF ¶ 28; RSMF ¶ 28. That included drafting answers, interrogatories, correspondence and pleadings; reviewing correspondence; and representing Newark's interests by resolving the cases she was assigned. DSMF ¶ 28.
Maddox was initially assigned as the lead attorney in charge of the in rem foreclosure project. Id. ¶ 26. Maddox received assistance from other attorneys and paralegals in the Real Estate Section, and from Newark tax collector Michelle Jones. Id. ¶ ¶ 32, 33, 34; RSMF ¶ 34. In the course of completing that project, she reviewed title binders and sent out notices. DSMF ¶ 27.
Maddox asserts that she had the heaviest case load in the Law Department and that the bankruptcy matters assigned to her were " much more than a heavy lift." Id. ¶ 37, 40 (citing Ex. 8 at 19). Defendants disagree. They point out that Newark was invariably a creditor; the cases involved filing a simple proof of claim and waiting until the matter was resolved by the issuance of a check. Id. ¶ 38. The cases rarely involved an in-court appearance. Id. ¶ 39; see also Ex. GG, Johnson Dep. at 40-41. Maddox's paralegal, Jones, testified that Maddox had a huge stack of files. Jones also stated, however, that she, the paralegal, did the " bulk" of the bankruptcy work. Defendants attest that other employees in the Law Department, including Mazzula and David Torres, had workloads equal to or heavier than Maddox's. DSMF ¶ ¶ 41-42. Maddox does not document the workload of other employees who allegedly had less work than she did.
Defendants assert that Maddox generally " did not do a lot of work." DSMF ¶ 58. She was frequently " in the hall," on her cell phone, or chatting with other people. Id. ¶ ¶ 55-57. Maddox denies these assertions. RSMF ¶ ¶ 55-57 (without citation). Over 10,000 pages of personal e-mails, some inappropriate for the workplace, were recovered from Maddox's city-owned computer. DSMF ¶ ¶ 86-90 (citing Ex. V, Maddox 8 and 9; Ex. H, Maddox Dep. at 256-57, Ex. W). When confronted about neglecting her duties, Maddox stated that it was " not her fault." Id. ¶ 59. Whittenburg, she claimed, prevented her from completing her work because he would " sit on files, sit on complaints before distributing to the attorneys in his section and forc[e] people to do things at the last second." RSMF ¶ 59 (citing Ex. 9, Nance Dep. at 69).
Defendants assert that Maddox challenged authority. Id. ¶ 60. Maddox denies that. RSMF ¶ ¶ 60-62.
Marquis D. Jones, the First Assistant Corporation Counsel from June 2006 to December 2007, stated that he had issues with Maddox's work ethic. DSMF ¶ ¶ 15, 61. Jones discussed terminating her with Chandy and Torok, who were " protective" of Maddox. Id. ¶ 62.
Aney Chandy was Corporation Counsel from July 1 2006 to February 1, 2008. Id. ¶ 14. Maddox says that Chandy told her that she would likely be promoted to Assistant Section Chief. RSMF ¶ 63 (citing Ex. 3, Maddox Dep.). Defendants respond that Chandy never promised Maddox a promotion to Assistant Section Chief. DSMF ¶ ¶ 30, 31. In their version, Maddox began asking for a promotion soon after she was hired. Id. ¶ ¶ Id. ¶ 63, 64 (citing Chandy Cert.). Chandy told her: " You just got here. Do your job. The discussion is premature." Id. ¶ 65 (citing Chandy Cert.).
3. Late Arrivals and Absences
Maddox states that she worked late each day, but her payroll records do not support that statement. DSMF ¶ 83 (citing Ex. I, Time Sheets). Maddox claims that she always worked more than the required 37.5 hours a week, but that assertion is likewise unsupported by her payroll records. Id. ¶ 84. Defendants assert that Maddox arrived late for work daily. Id. ¶ 54. They add that Maddox used sick leave frequently, and had a history of excessive sick leave use dating back to her time at the Attorney General's Office. Id. ¶ ¶ 43 (citing Ex. I), 45 (citing Ex. K, Pl. Sick Leave Records). Maddox exceeded her allotted sick and vacation days for 2007 and 2008. Id. ¶ 46 (citing Ex. L, Pl. Requests for Sick Leave). Maddox's sick days, say Defendants, frequently occurred on the dates of scheduled court appearances. Id. ¶ 47 (citing Ex. M, Internal Emails and Memoranda). Even when asked, Maddox allegedly would not notify the Court or her adversary that she would not be attending. Id. ¶ 53.
In explanation, Maddox asserts that she has a chronic medical condition. RSMF ¶ ¶ 43, 54. She never provided adequate proof of such a condition when it was requested during the course of her employment, in discovery, at her deposition, and through written requests to her counsel. DSMF ¶ 44. Maddox asserts that she provided Newark with copies of medical notes. RSMF ¶ 44 (citing Ex. 15, Medical Records). Those medical records, however, do not document any serious or chronic condition. They contain prescriptions, records of ordinary doctor and dental appointments, and emails from Maddox to the office indicating that she was recovering from a cold. Ex. 15.
Maddox told Angela Foster, the Chief of Staff for the City's Law Department, that she suffered from bronchitis. Ex. J, Foster Memo to File and Emails. Maddox requested a 10:00 am start time as an accommodation to her " chronic" medical condition. RSMF ¶ 48. Newark agreed to the accommodation on the condition that Maddox document her ailment with a physician's note. Maddox replied that she would not provide the note because of HIPAA regulations. Id. DSMF ¶ 48 (citing Ex. J); ¶ 49 (citing Ex. H, Maddox Dep.).
Maddox says she requested the necessary form to apply for a reasonable accommodation but that Angela Foster failed to furnish it. DSMF ¶ ¶ 16, 50; RSMF ¶ ¶ 48, 50-51. She admitted at her deposition that she was not sure if the City even had
such a form, but that she assumed it did. Id. ¶ ¶ 50. (citing Ex. H at 835:1-20). She also stated at her deposition that she had no evidence that Whittenburg had any input into whether she received flexible hours because she did not broach the subject with him. Id. ¶ 52 (citing Ex. H at 498-99).
Maddox claims that other employees came in late but were not disciplined. RSMF ¶ 48. For instance, Neals did not discipline another attorney who arrived late because of traffic issues. RSMF ¶ 54. She points to Neals's testimony that he allowed for some flexibility as long as the attorneys worked for 37.5 hours per week. Id. (citing Ex. 1, Neals Dep. at 104-05). Neals's statement, in context, was that there was flexibility " on the day-to-day basis" but that " there was an expectation that generally you would be in by 9:00 or some reasonable time because city business was starting, and we're a law office for all intents and purposes." Ex. 1 at 104.
4. Review of Maddox's Cases
Maddox asserts that she received an " unfair" case load because Whittenburg was trying to " bury" her. RSMF ¶ 67. Maddox's complaints that she was " inundated" with work prompted (or at least were followed by) a review of her files by Pereira and Danielle Torok. Id. ¶ ¶ 66, 68, 69 (citing Ex. E, Complaint; Ex. N, Foster Memos to File); RSMF ¶ 66 (admitting in part, but stating that Defendants had already decided to review all of the attorneys' files).
The file review commenced at the end of October 2008. Id. ¶ 69. Maddox states that she worked with Pereira and Torok on the file review. That is not reflected in her time sheets. Id. ¶ 71 (citing Ex. R, Pereira Dep. at 30-32); RSMF ¶ 71.
The other attorneys in the Newark law department went through the same file review process. Id. ¶ 77 (citing Ex. R at 16-17). Maddox admits that all attorneys' files, not just hers, were reviewed. Her complaint is that she was not initially scheduled to be in the first group of reviews, but that her review was moved to an earlier date in " retaliation."  She also asserts that Defendants told her and paralegal Kelly Johnson that the purpose of the review was to clear out old files. Id. ¶ 68.
Defendants assert that it was during this review that they became aware of the " depth and breadth of Maddox's nonfeasance." DSMF ¶ 70. The review revealed that the files contained uncashed bankruptcy trust checks that had not been submitted to the appropriate City department for processing. Id. ¶ 73. (citing Ex. R at 27-29, 33). Maddox responds that she kept a list of all the checks that came in and that she instructed paralegal Johnson where to forward the check. RSMF ¶ 70 (citing Ex. 8, Johnson Dep. at 39-40). She also asserts that the reviewed files included ones that she inherited from predecessors, and that some of the checks dated from 2005 and 2006. Id. ¶ 73 (citing Ex. 1 at 110, 111-18). Pereira testified that she
did not fault Maddox for the oldest checks' having become stale in the first place, but only for failing to take action on them. Ex. R at 29.
The review revealed that Maddox had failed to file proofs of claim in her bankruptcy cases, and that she had not filed responsive pleadings in numerous foreclosure actions. DSMF ¶ ¶ 74, 75 (citing Ex. R, Pereira Dep. at 27-33). Maddox says she denies these assertions, but cites no evidence. RSMF ¶ ¶ 74, 75 (without citation). Maddox acknowledged at her deposition that failure to file a required answer would constitute malpractice and grounds for termination. Id. ¶ 76 (citing Ex. H, Maddox Dep. at 778-79).
From their review of Maddox's files, Pereira and Torok concluded that she had a high volume of cases, but that these files primarily required clerical, rather than substantive, attention. DSMF ¶ 79 (citing Ex. R at 13). Pereira and Torok closed some of the cases, leaving Maddox with a smaller case load. Id. ¶ 80 (citing Ex. R at 30-34). Whittenburg also reassigned a number of matters. Id. ¶ 81 (citing Ex. S, Law Dept. Records). Again, Maddox generally denies this, but the reassignments are documented. Id.
During the review, Maddox was on a vacation in Brazil, and called in sick the day she was scheduled to return. (Defendants say it was a 12 day vacation; Maddox says it was for " fewer days." RSMF ¶ 78. After the file review, Defendants assert, Maddox continued to fail to transmit trustee checks to the applicable Newark department. DSMF ¶ 82 (citing Ex. T, Uncashed Checks). The uncashed checks submitted by Defendants are dated November and December 2008. Id. Maddox again generally denies or excuses this neglect, but cites no relevant evidence. RSMF ¶ 82 (reiterating that she had a larger case load than the other attorneys and that it was the job of Johnson, the paralegal, to keep track of the checks).
5. Personal Use of Work Computer
Defendants assert that Maddox used her city-owned computer for personal emails, many of which were not appropriate. Defendants produced over 10,000 pages of personal emails collected from Maddox's work computer; the emails included photographs of gang members, sexually provocative photographs, and the use of racial epithets. Id. ¶ ¶ 87, 89. Maddox does not dispute the content of the emails but asserts that the inappropriate comments were made by others. RSMF ¶ 89. Maddox also sent numerous emails to her friends and coworkers regarding personal matters like vacations, her involvement with the 2008 presidential campaign, her romantic life, dinner and movie plans, after-work events, news articles, and religious email chains. DSMF ¶ 90; see also RSMF ¶ 90 (stating that Maddox did not have " sufficient information" to admit or deny the assertion).
At her deposition, Maddox testified that the multitude of personal emails did not change the fact that she was overworked, stating " Obama responds to personal e-mails during his work time, but he is still overworked." Ex. H at 256-57. Maddox also testified that it was permissible for her to use racially insensitive remarks about African-Americans in her emails because certain terms were often used 'internally" to " describe a certain type of black person." Id. ¶ 91 (citing Ex. H at 246-47).
It does not appear that the emails, which the City had not read at the time, were cited contemporaneously as grounds for dismissal.
6. Maddox's Termination
Newark terminated Maddox on January 23, 2009. Id. ¶ 94 ...