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O'Leary v. County of Salem Correctional Facility

United States District Court, D. New Jersey

October 12, 2017


          SARAH F. MEIL, On behalf of Plaintiff


          CHRISTINE P. O'HEARN CHRISTOPHER ALBERT REESE BROWN & CONNERY, LLP, On behalf of Defendant Rowan College at Gloucester County Gloucester County Police Academy.


          NOEL L. HILLMAN, U.S.D.J.

         Presently before the Court is the motion of Defendants for summary judgment in their favor on Plaintiff's sex[1] and disability discrimination claims. For the reasons expressed below, Defendants' motions will be granted in part and denied in part.


         Plaintiff, Tiffany O'Leary, began working as a Corrections Officer at Salem County Correctional Facility (“SCCF”) on November 8, 2010. For two years, Plaintiff received positive performance evaluations and got along well with her co-workers.

         On December 1, 2012 while working on what is referred to as the “B-Shift, ” Plaintiff uncovered evidence of illegal drugs being brought into the facility by another corrections officer and a civilian employee who was the son of a former warden of the facility. Plaintiff reported the activity to her superior officer. Plaintiff claims, from that point on and for more than a year, she suffered constant and systematic hostility, harassment, and discrimination - much of it directed at her sex - because of her whistleblowing activity.

         On February 28, 2014, Plaintiff's employment with Defendant Salem County changed from a corrections officer to a Salem County Sheriff's Officer Recruit. She left her position at SCCF and began attending the Gloucester County Police Academy at Rowan College at Gloucester County (“RCGC”). During her training, Plaintiff claims that she was discriminated against because of her disabilities, including high blood pressure, asthma, eczema, and hyperhidrosis (excessive sweating) on her hands. Plaintiff claims that she was harassed, and ultimately forced to resign from the police academy on June 11, 2014, because of her disabilities and need for certain accommodations, including being permitted to wear a face mask in cold weather, use an inhaler, and wear gloves during certain training exercises. Plaintiff contends that RCGC's reason for forcing her to resign in lieu of dismissal - that she lied about her completion of a physical training exercise - was a pretext manufactured by the instructors to cover-up the discrimination she suffered based on her disabilities and required accommodations.

         Upon her dismissal from the police academy, she could not maintain a position at the Sheriff's Office because she did not complete her training at the police academy. Plaintiff requested that she be permitted to return to SCCF as a corrections officer, but SCCF denied her request, stating that because her failure to complete the police academy was not due to a medical reason, she was not permitted to return.

         On July 10, 2014, Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity Commission (EEOC). On May 12, 2015, the EEOC issued Plaintiff a Notice of Right to Sue.

         On June 9, 2015, Plaintiff filed a multi-count complaint against Salem County and RCGC, alleging that they violated the New Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111 et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq., and the New Jersey Contentious Employee Protection Act (CEPA), N.J.S.A. 34:19-1 et seq., by discriminating against her and retaliating against her due to her gender, disabilities, and whistleblowing activity. Defendants have moved for summary judgment in their favor on all counts. Plaintiff has opposed Defendants' motions.


         A. Subject matter jurisdiction

         The Court has subject matter jurisdiction pursuant to 28 U.S.C. § 1331 because Plaintiff brings claims arising under federal law. The Court has supplemental jurisdiction over Plaintiff's state law claims pursuant to 28 U.S.C. § 1367.

         B. Summary judgment standard

         Summary judgment is appropriate where the Court is satisfied that the materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations, admissions, or interrogatory answers, demonstrate 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(a).

         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).

         C. Analysis

         1. Plaintiff's claims against Salem County

         Plaintiff's claims against Salem County consist of a claim for hostile work environment in violation of the Title VII and the NJLAD, and a claim for wrongful termination in violation of Title VII, the NJLAD, and CEPA.[2] Salem County has moved for summary judgment, arguing that it is entitled to judgment in its favor because Plaintiff's evidence cannot support her claims of discrimination. Salem County also argues that Plaintiff's CEPA claim is not viable because it is outside the scope of her EEOC charge since her charge does not discuss her reporting the illegal drug activity and any resulting repercussions.[3]

         Addressing Salem County's argument about Plaintiff's CEPA claim first, unlike Plaintiff's claims for violations of federal employment discrimination laws, Plaintiff is not required to exhaust any administrative remedies prior to bringing a CEPA claim. See Barzanty v. Verizon Pennsylvania, Inc., 361 Fed.Appx. 411, 413 (3d Cir. 2001) (citing Burgh v. Borough Council, 251 F.3d 465, 470 (3d Cir. 2001)) (explaining that a plaintiff bringing an employment discrimination claim under Title VII must comply with the procedural requirements set forth in 42 U.S.C. § 2000e-5, and before filing a lawsuit, a plaintiff must exhaust her administrative remedies by filing a timely discrimination charge with the EEOC); Lippman v. Ethicon, Inc., 119 A.3d 215, 230, 222 N.J. 362, 388 (N.J. 2015) (holding that CEPA does not contain an exhaustion requirement); Skoorka v. Kean University, 2015 WL 3533878, at *20 (D.N.J. 2015) (explaining a CEPA retaliation claim may be based on an employee's report of virtually any unlawful practice, and a Title VII retaliation claim must be based on an employee's report of a violation of Title VII itself). Thus, to the extent that Plaintiff's EEOC charge does not mention her reporting the illegal drug activity, such omission does not preclude her claim under New Jersey's CEPA law.

         With regard to Plaintiff's retaliation claim premised on Salem County's alleged violation of Title VII, the relevant test in determining whether a plaintiff has exhausted her administrative remedies, is “whether the acts alleged in the subsequent Title VII suit are fairly within the scope of the prior EEOC complaint, or the investigation arising therefrom.” D'Ambrosio v. Cresthaven Nursing & Rehabilitation Center, 2016 WL 5329592, at *6 (D.N.J. 2016) (citing Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984) (per curiam); Antol v. Perry, 82 F.3d 1291, 1295 (3d Cir. 1996) (“Requiring a new EEOC filing for each and every discriminatory act would not serve the purposes of the statutory scheme where the later discriminatory acts fell squarely within the scope of the earlier EEOC complaint or investigation.”)) (other citations omitted). A plaintiff's suit will not be barred for failure to exhaust administrative remedies if the “core grievances” in the Title VII suit filed and the earlier EEOC complaint are the same. Id. (citing Waiters, 729 F.2d at 237 (holding that the plaintiff's suit was not barred for failure to exhaust administrative remedies because his Title VII suit alleging retaliatory firing shared the same core grievance as the earlier EEOC complaint charging retaliatory employment restrictions); Antol, 82 F.3d at 1291 (finding that an initial EEOC charge of disability discrimination cannot fairly encompass a subsequent Title VII claim of gender discrimination)).

         Here, Plaintiff's charge filed against Salem County mainly relates to her transfer to the Sheriff's Office on February 24, 2014 and the alleged discrimination she suffered by the Sheriff's Office during her time at the police academy. (Docket No. 64-5.) The only reference to her time as a corrections officer at SCCF is one sentence: “I had previously worked for Salem County Correctional Facility, and I complained of sex discrimination there.” (Id.)

         Plaintiff could maintain a Title VII claim against Salem County regarding her whistleblowing activity if her EEOC charge could be fairly read to claim that Salem County discriminated and retaliated against her in violation of Title VII arising out of her reporting the illegal drug activity. Plaintiff's charge, however, gives no indicated of what gave rise to the alleged sex discrimination at SCCF, and the “core grievance” of her charge concerns what occurred upon her transfer to the Sheriff's Office. Thus, Plaintiff cannot maintain a Title VII retaliation claim against Salem County specifically concerning her whistleblowing activity.

         This discrete carve out of Plaintiff's claims against Salem County does not affect substantively the analysis of the remainder of Plaintiff's claims against Salem County. Plaintiff argues that the existence of disputed material facts permits her to proceed with her claims against Salem County under CEPA for retaliation for her whistleblowing, and proceed with her claims against Salem County under the NJLAD and Title VII for sex discrimination and harassment while she served as a corrections officer and at the Sheriff's Office.[4] The Court agrees.

         The legal standards for Plaintiff's claims serve as a roadmap to assess the evidence Plaintiff presents to support those claims. To establish a prima facie CEPA action, a plaintiff must demonstrate that: (1) he or she reasonably believed that his or her employer's conduct was violating either a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) he or she performed a “whistle-blowing” activity described in N.J.S.A. 34:19-3 [relevant here, “[d]iscloses . . . to a supervisor . . . an activity, policy or practice of the employer, ” N.J.S.A. 34:19-3(a)]; (3) an adverse employment action was taken against him or her; and (4) a causal connection exists between the whistle-blowing activity and the adverse employment action. Lippman v. Ethicon, Inc., 119 A.3d 215, 226 (N.J. 2015) (citations omitted).

         Under Title VII, it is unlawful for an employer “to discriminate against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . sex.” 42 U.S.C. § 2000e-2(a)(1). Under the NJLAD, it is unlawful “[f]or an employer, because of the . . . sex . . . of any individual . . . to discriminate against such individual in compensation or in terms, conditions or privileges of employment.” N.J.S.A. 10:5-12(a). Title VII and the NJLAD also prohibit sexual harassment - creating a hostile work environment - because it is a form of sex discrimination. Moody v. Atlantic City Board of Education, 870 F.3d 206 (3d Cir. 2017) (citing Meritor Sav. Bank, FSB v. Vinson, 477 U.S. 57, 65-66 (1986); Lehmann v. Toys ‘R' Us, Inc., 626 A.2d 445, 452 (N.J. 1993) (explaining that the New Jersey Supreme Court “has frequently looked to federal precedent governing Title VII” to interpret and apply the NJLAD)).

         To succeed on a hostile work environment claim against the employer, a plaintiff must establish that: 1) the employee suffered intentional discrimination because of her sex, 2) the discrimination was severe or pervasive, 3) the discrimination detrimentally affected the plaintiff, 4) the discrimination would detrimentally affect a reasonable person in like circumstances, and 5) the existence of respondeat superior liability. Id. (citations omitted). To establish a prima facie case of sex discrimination under either the federal or state statute, a plaintiff must first establish that: (1) she is a member of a protected class; (2) she was qualified for the position in question; (3) she suffered an adverse employment action; and (4) that adverse employment action gives rise to an inference of unlawful discrimination. Tourtellotte v. Eli Lilly and Co., 636 F. App'x 831, 842 (3d Cir. 2016) (citing Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410-11 (3d Cir. 1999)) (other citations omitted).

         A plaintiff can prove her discrimination claims through direct or circumstantial evidence. Under the framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the plaintiff must first establish a prima facie case of discrimination, which creates an inference of unlawful discrimination. Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 643-45 (3d Cir. 2015). Once the plaintiff has successfully established a prima facie case creating an inference of discrimination, the burden shifts to the employer who must articulate a legitimate nondiscriminatory reason for the adverse employment action. Id. (citations omitted). This second step of McDonnell Douglas does not require that the employer prove that the articulated legitimate, nondiscriminatory reason was the actual reason for the adverse employment action, but instead the employer must provide evidence that will allow the factfinder to determine that the decision was made for nondiscriminatory reasons. Id. (citations omitted).

         If the employer satisfies this second step, the burden shifts back once more to the plaintiff to show, by a preponderance of the evidence, that the employer's proffered legitimate, nondiscriminatory reason was pretextual - that not only was the employer's proffered reason false, but the real reason was impermissible discrimination. Id. This can be done in two ways: (1) by pointing to evidence that would allow a factfinder to disbelieve the employer's reason for the adverse employment action by showing such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons, or (2) by pointing to evidence that would allow a factfinder to believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action, which can be shown by (1) the defendant having previously discriminated against the ...

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