United States District Court, D. New Jersey
plaintiff, Anthony DeSantis, has sued his former employer,
New Jersey Transit, as well as two of its employees, Alan
Wohl and Fred D'Ascoli, alleging discrimination on the
basis of age, disability, and race. DeSantis alleges that
N.J. Transit violated the Age Discrimination in Employment
Act ("ADEA"), 29 U.S.C. § 623(a); the
Americans with Disabilities Act ("ADA"), 42 U.S.C.
§ 12112; Title VII of the Civil Rights Act of 1964, 42
U.S.C. § 2000; and the New Jersey Law Against
Discrimination ("NJLAD"), N.J. Stat. Ann. §
10:5-12. He also argues that Alan Wohl and Fred D'Ascoli
are liable under the NJLAD for "aiding and
abetting" N.J. Transit's discrimination. Defendants
have filed a motion for summary judgment.
DeSantis started working for N.J. Transit on December 13,
1982, as a Senior Accountant in the Fixed Assets Department.
(DeSantis Stmt. ¶ 1-2). DeSantis has suffered with
epilepsy for several years, has paralysis of his left arm,
and walks with a limp. (DeSantis Stmt. ¶ 19). His
supervisor, Alan Wohl, was aware that DeSantis had paralysis
of the left arm and a limp. (Wohl Dep. Tr. 46:18-47:9). Wohl
claims that he was unaware DeSantis suffered from epilepsy.
claims that the Manager of Fixed Assets position became
available in 1993, but he was told he could not apply for the
position. (DeSantis Stmt. ¶ 3). Rupak Biswas was hired
as the Manager of Fixed Assets. (DeSantis Stmt. ¶ 5).
DeSantis claims that Biswas was not experienced and that he
often had to do Biswas's work. (DeSantis Stmt. ¶ 6).
DeSantis was later promoted to the position of Principal
Accountant in Fixed Assets in 1994. (DeSantis Stmt. ¶
4). DeSantis reports that Alan Wohl told him at one meeting
in 2011, "just remember that shit rolls down the hill
and you are going to always be at the bottom." (Compl.
Biswas notified N.J. Transit that he was going to retire,
four employees met the specific requirements for the position
and were invited to interview in 2013. (DeSantis Stmt. ¶
8-9); (NJT Stmt. ¶ 14). Those employees were DeSantis,
Fariba Cattan, Mr. Trinca, and Mr. Omoyi. (NJT Stmt. ¶
15). They were 60, 54, 48, and 50 years old, respectively.
(NJT Stmt. ¶ 15). The interview committee comprised Alan
Wohl, Director of Fixed Assets, John Weber, Manager of Third
Party Billing, and Jeffrey Klugman, Director of Corporate
Recruiting. (NJT Stmt. ¶ 16). DeSantis alleges that
Cattan's husband also worked for N.J. Transit and was
close friends with Alan Wohl. (DeSantis Stmt. ¶ 27). He
also claims that Cattan was given the interview questions in
advance. (DeSantis Stmt. ¶ 27).
interview panel chose Fariba Cattan, stating that she was the
most qualified for the job and provided the best answers to
the interview questions. (DeSantis Stmt. ¶ 16);
(Interview Rankings). Cattan had worked as a Principal
Accountant in the Cost Accounting & Analysis department
since January 2007, had a bachelor's and master's
degree in accounting, and held an MBA. (Cattan App.).
DeSantis did not complete graduate education. (DeSantis Dep.
Tr. 8:14-9:12). Cattan had not previously worked in the Fixed
Assets department. (DeSantis Stmt. ¶ 10-12); (Cattan
began working as the Manager of Fixed Assets on February 28,
2013. (Desantis Stmt. ¶ 17). DeSantis was very upset
that he was not promoted to this position. (DeSantis Stmt.
¶ 22). DeSantis alleges that he was expected to train
her and continue performing the responsibilities of the
Manager of Fixed Assets. (DeSantis Stmt. ¶ 18). During
one meeting on May 29, 2013, DeSantis questioned Cattan's
qualifications for the job. (DeSantis Stmt. ¶ 23);
(Cattan Email). Wohl and Cattan met with DeSantis to discuss
DeSantis's comments. (DeSantis Stmt. ¶ 23). Cattan
also sent DeSantis an email stating that she has
"experienced a lack of respect and cooperation from
[DeSantis] on several occasions" and that DeSantis was
"antagonistic, loud, and uncooperative" during the
May 29, 2013 meeting. (Cattan Email).
began experiencing more stress at work, which related to
being reprimanded. Beginning on July 17, 2013, DeSantis took
medical leave because the job-related stress was aggravating
his epilepsy. (Palmese Eval.).
April 8, 2013, DeSantis sent a letter to the EEOC stating
that he wanted to file employment discrimination charges on
the basis of age and disability. (EEOC Letter). On July 13,
2013, he filed charges with the EEOC on those same grounds.
(EEOC Compl.). The EEOC issued a right-to-sue letter on March
3, 2014, DeSantis brought suit in this Court against N.J.
Transit and two N.J. Transit employees: Alan Wohl, the
Director of Fixed Assets, and Fred D'Ascoli, N.J.
Transit's Deputy Chief Financial Officer. (Compl.). The
complaint asserted five counts: The First Count alleged that
defendants violated the ADEA. The Second Count alleged that
defendants violated the ADA. The Third Count alleged
harassment and a hostile work environment under the NJLAD.
The Fourth Count alleged racial discrimination (stemming from
DeSantis's marriage to an African-American woman) in
violation of Title VII and the NJLAD. Finally, the Fifth
Count alleged First Amendment violations stemming from
Cattan's disciplining DeSantis for alleged
defendants moved to dismiss the complaint on June 22, 2014.
On April 29, 2015, I dismissed the Third and Fifth Counts, as
well as the claims against the individual defendants, Alan
Wohl and Fred D'Ascoli. DeSantis v. New Jersey
Transit, 103 F.Supp.3d 583 (D.N.J. 2015). DeSantis filed
an amended complaint on May 20, 2015. The amended complaint
asserts the following claims:
Count I: Age discrimination in violation of the ADEA and
Count II: Disability discrimination in violation of the ADA
Count III: Harassment and a hostile work environment under
Count IV: Associational race discrimination under Title VII
Count V: Race discrimination in violation of Title VII and
Count VI: Aiding and abetting in violation of the NJLAD
(AC). The claims of the amended complaint are asserted
against all three defendants: N.J. Transit, Alan Wohl, and
Fred D'Ascoli. (AC). DeSantis acknowledges, however, that
Alan Wohl and Fred D'Ascoli do not have liability as
individuals under Title VII, the ADA, or the ADEA; they can
have liability only under NJLAD for "aiding and
abetting." (PI. Br. 14). See also DeSantis, 103
F.Supp.3d at 589-90 (discussing individual liability under
Title VII, the ADA, the ADEA, and the NJLAD).
Rule of Civil Procedure 56(a) provides that summary judgment
should be granted "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); see also Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 248 (1986); Kreschollek v. S. Stevedoring
Co., 223 F.3d 202, 204 (3d Cir. 2000). In deciding a
motion for summary judgment, a court must construe all facts
and inferences in the light most favorable to the nonmoving
party. See Boyle v. County of Allegheny
Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998). The
moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v.
Catrett, 477 U.S. 317, 322-23 (1986). "[W]ith
respect to an issue on which the nonmoving party bears the
burden of proof ... the 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."
Celotex, 477 U.S. at 325.
the moving party has met that threshold burden, the
non-moving party "must do more than simply show that
there is some metaphysical doubt as to material facts."
Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio
Corp., 475 U.S. 574 (1986). The opposing party must
present actual evidence that creates a genuine issue as to a
material fact for trial. Anderson, 477 U.S. at 248;
see also Fed. R. Civ. P. 56(c) (setting forth types
of evidence on which nonmoving party must rely to support its
assertion that genuine issues of material fact exist).
"[U]nsupported allegations ... and pleadings are
insufficient to repel summary judgment." Schoch v.
First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir.
1990); see also Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) ("A nonmoving party has
created a genuine issue of material fact if it has provided
sufficient evidence to allow a jury to find in its favor at
trial."). If the nonmoving party has failed "to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial, ... there can
be 'no genuine issue of material fact, ' since a
complete failure of proof concerning an essential element of
the nonmoving party's case necessarily renders all other
facts immaterial." Katz v. Aetna Cos. 6s Sur.
Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting
Celotex, 477 U.S. at 322-23).
deciding a motion for summary judgment, the court's role
is not to evaluate the evidence and decide the truth of the
matter, but to determine whether there is a genuine issue for
trial. Anderson, 477 U.S. at 249. Credibility
determinations are the province of the fact finder. Big
Apple BMW, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358,
1363 (3d Cir. 1992).
summary judgment standard, however, does not operate in a
vacuum. "[I]n ruling on a motion for summary judgment,
the judge must view the evidence presented through the prism
of the substantive evidentiary burden." Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 254 (1986). That
"evidentiary burden" is discussed in the following
that DeSantis has not presented evidence sufficient to
support a jury finding in his favor. The defendants'
motion for summary judgment will therefore be granted.
McDonnell Douglas Burden-Shifting Framework
argues that New Jersey Transit discriminatorily failed to
promote him based on age, disability, and race. N.J.
Transit's actions, he alleges, violated the ADA, ADEA,
NJLAD, and Title VII. Because he lacks substantial direct
evidence of discriminatory intent (such as statements of
bias), he seeks to prove N.J. Transit's discriminatory
intent through circumstantial evidence.
employee seeks to prove an employer's discriminatory
intent in an adverse employment action through circumstantial
evidence, courts evaluate motions for summary judgment under
the specialized burden-shifting framework set out in
McDonnell Douglas Corp. v. Green, 411 U.S. 792
(1973).The McDonnell Douglas test was
formulated "to compensate for the fact that direct
evidence of intentional discrimination is hard to come
by." Price Waterhouse v. Hopkins, 490 U.S. 228,
271 (1989) (O'Connor, J., concurring). This framework is
used in Title VII cases, id. (majority opinion), ADA
cases, Raytheon Co. v. Hernandez, 540 U.S. 44
(2003), ADEA cases, Smith v. City of Allentown, 589
F.3d 684, 691 (3d Cir. 2009),  and NJLAD cases, Bergen
Commercial Bank v. Sisler, 723 A.2d 944, 954 (N.J.
McDonnell Douglas analysis is divided into three
phases, shuttling the burden between ...