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Fountain v. Covenant Security Services, Ltd.

United States District Court, D. New Jersey

February 1, 2017

RENEE FOUNTAIN, Plaintiff,
v.
COVENANT SECURITY SERVICES, LTD., doing business as COVENANT, and DOMINIC FERRARA, Defendants.

          HEIDI R. WEINTRAUB WEINTRAUB & MARONE, LLC On behalf of Plaintiff

          MICHAEL J. WATSON, WILLIAM M. TAMBUSSI, BROWN & CONNERY, LLP, On behalf of Defendants

          OPINION

          NOEL L. HILLMAN, U.S.D.J.

         Presently before the Court is the motion of Defendants for summary judgment on Plaintiff's claims that Defendants violated the New Jersey Law Against Discrimination when she was treated differently based on her gender and was terminated for complaining about harassment by her supervisor. For the reasons expressed below, Defendants' motion will be granted in part and denied in part.

         BACKGROUND

         Defendant Covenant Security Services, LTD. provides security and protection services to clients at facilities across the nation and in the State of New Jersey. Plaintiff Renee Fountain began her employment with Covenant as a security guard on October 2, 2010. During her employment with Covenant and up to the date she was terminated from her employment - March 29, 2013 - Plaintiff worked at the Mission Solutions Engineering (“MSE”) facility located in Moorestown, New Jersey. Covenant's primary client contact at MSE was Francis McKenna, a MSE security operations manager, and Plaintiff was supervised by Samuel Banks, the Covenant site manager at MSE.

         Plaintiff and one other security guard were the only women employed by Covenant as security guards at MSE. Within a month or two of her employment with Covenant, Plaintiff contacted Defendant Dominic Ferrara, Covenant's Vice-President of Operations, by telephone to complain about Banks' harassment of her because she is a woman. In April 2012, the other female security guard resigned, leaving Plaintiff as the only woman supervised by Banks at MSE.

         In July 2012, MSE permanently consolidated two of its engineering facilities in Moorestown into one facility. As a result, MSE required less security guards. Covenant determined to reduce all security guards' hours, rather than to lay off any guards.

         After Covenant adjusted the hours of its security guards, Plaintiff met with Ferrara and Ashely Dennis of Covenant's human resources department to express her belief that her hours were being reduced more than her male co-workers. Because she was not informed about any investigation into her concerns, on August 7, 2012, Plaintiff filed a complaint with the New Jersey Division on Civil Rights (“DCR”) regarding the reduction of hours and her belief that her hours had been reduced because she is a woman. Covenant ultimately determined that Plaintiff's hours had been reduced to a greater extent than her male co-workers and her schedule was adjusted accordingly by the end of August.

         Plaintiff claims, however, that once she filed her complaint with the DCR, she was continually discriminated against because she is a woman, and retaliated against for filing the DCR complaint and follow-up letters to Ferrara about Banks' harassing behavior. Plaintiff claims that Banks mistreated her by constantly humiliating, intimidating, sexually harassing, and embarrassing her in the front lobby in front of other people. Plaintiff also claims that Banks yelled at her and talked to her in a condescending way. For example, he would put his finger in her face and scream at her, disallow her to get coffee and direct that her to make her own instant coffee from the bathroom sink water, disallow her to eat lunch at her desk, and blame her for the messy desk, all the while her male counterparts were not similarly treated.

         On November 30, 2012, Banks issued a written “corrective action” to Plaintiff because Plaintiff broke the chain of command when she spoke to an MSE upper-management employee about a Covenant security guard who had expressed a troubling sentiment to Plaintiff. Plaintiff claims that the written corrective action was discriminatory and retaliatory because other male security guards, including Banks, spoke with MSE employees and did not receive such a harsh sanction.

         In February 2013, McKenna advised Covenant that because of budget cuts and fiscal uncertainty, MSE would be reducing its security shifts by 66 hours per week. At that same time, on February 4, 2013, McKenna sent an e-mail to Covenant management addressing multiple complaints with regard to Plaintiff's job performance: (a) Plaintiff had failed to put out traffic cones as instructed; (b) Plaintiff was not covering extra escort shifts as requested; (c) Plaintiff advised an MSE employee “this place will be closing down”; and (d) Plaintiff was “not a team player and I'm fed up with it.” According to McKenna, his complaints about Plaintiff were not limited to the complaints in the February 4, 2013 email, but were “the straw that broke the camel's back.” Plaintiff refutes the items in McKenna's email, and contends that McKenna, whom she claims knew about Plaintiff's DCR complaint and complaints about Banks, was Banks' cohort who endeavored to get rid of Plaintiff because she is a woman and a “complainer.”

         That same month, Covenant reviewed all of the personnel files for the security guards, which revealed that Plaintiff was the only security guard with any disciplinary history - the November 30, 2012 “corrective action.” Plaintiff was also the only Covenant security guard about whom McKenna, Covenant's primary client contact at MSE, had complained. According to Covenant, it determined that the 66-hour shift reduction required it to lay off certain employees, as it would be infeasible and a “logistical nightmare” to only reduce the hours of all security officers at MSE like it had in the July 2012 consolidation. Covenant considered terminating Plaintiff in February 2013, but decided to keep her employed until the 66hour shift reduction went into effect.[1] Plaintiff was terminated on March 29, 2013.

         Based on this series of events, Plaintiff claims that Covenant violated the New Jersey Law Against Discrimination, N.J.S.A. 10:5-1 et seq., when it treated her differently because of her gender, and when it retaliated against her because she complained of disparate treatment. Plaintiff also alleges that Ferrara is personally liable for NJLAD violations because he aided and abetted the discrimination. Defendants have moved for summary judgment in their favor, arguing that Plaintiff cannot meet her prima facie case for either her discriminatory treatment claim or retaliation claim, and she cannot otherwise rebut their legitimate business reason for her termination. Plaintiff has opposed Defendants' motion.

         DISCUSSION

         A. Subject ...


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