United States District Court, D. New Jersey
L. Wolfson United States District Judge.
employment discrimination suit, Plaintiff Sireen Sawalha
Hashem (“Plaintiff” or “Ms. Hashem”),
an Arab Muslim woman of Palestinian descent, alleges that her
former employers, Hunterdon Central Regional High School
(“Hunterdon Central”) and Hunterdon Central
Regional High School Board of Education (the
“Board”), as well as her former supervisors,
Christina Steffner, Suzanne Cooley, and Rebecca Lucas (the
Board, Steffner, Cooley, and Lucas, cumulatively referred to
as “Defendants”), discriminated and retaliated
against Plaintiff on the basis of her race, religion, and
national origin, in violation of Title VII of the Civil
Rights Act of 1963, 42 U.S.C. § 2000e, et seq.
(“Title VI”) and the New Jersey Law Against
Discrimination, N.J.S.A. § 10:5-3, et seq.
(“NJLAD”). Defendants now move for summary
judgment pursuant to Federal Rule of Civil Procedure 56. For
the reasons set forth below, Defendants' motion for
summary judgment is GRANTED in its entirety.
FACTUAL BACKGROUND AND PROCEDURAL HISTORY
following facts are undisputed unless otherwise noted.
Plaintiff was born in Kafir Rai, and she identifies as an
Arab Muslim woman. Defendants' Statement of Material
Facts (“Defs.' Facts”), ¶¶ 1, 2.
Plaintiff was initially employed as a Student Teacher at
Hunterdon Central from January 2013 through May 2013, until
she was offered and accepted a full-time position as a U.S.
History teacher in the Social Studies Department, which
position commenced in September 2013. Id. at
¶¶ 3-4. Robert Zywicki (“Mr. Zywicki”),
who was the supervisor of social studies, originally served
as Plaintiff's immediate supervisor for a period of
approximately three months, until he left Hunterdon Central
in November 2013. Id. at ¶ 5.
October 13, 2013, Plaintiff incorporated a video into her
U.S. History lesson plan pertaining to Malala Yousafzai (the
“Malala Video”),  which was previously used by
Lindsay Warren (“Ms. Warren”), another teacher at
Hunterdon Central. Id. at ¶ 7. Subsequently, an
unidentified parent complained about a comment that Plaintiff
allegedly made during a class discussion which followed the
Malala Video, i.e., the manner in which a woman
dresses is a method of rape prevention. Id. at
Zywicki had a conversation with Plaintiff to address the
parent's complaint, but the parties dispute the events
which then occurred. Id. at ¶ 9. According to
Defendants, Mr. Zywicki informed Plaintiff, in a written
communication, that he had accepted her representation that
the parent's complaint was inaccurate, and he advised her
to “simply be aware of the different messages that
students might take away from current event
conversations.” Id. at ¶¶ 9-10.
However, in addition to these written statements, Plaintiff
maintains that Mr. Zywicki “simultaneously told”
her that she “wasn't Lindsay, ” and he
forbade her from referencing the “Near East” or
“Islam.” Pl.'s Counterstatement of Material
Facts (“Pl.'s Facts”), ¶ 10.
Nonetheless, Plaintiff admits she was subsequently invited by
the school to share her personal story with a class of
students, and she assisted in separate lessons that pertained
to the history and politics of Kafir Rai and Islam. Defs.
Facts, ¶ 11.
February 2, 2014, defendant Rebecca Lucas (“Ms.
Lucas”) replaced Dr. Zywicki as the supervisor of
social studies for Hunterdon Central. Id. at ¶
13. In March 2014, a parent complained to “non-Arab,
non-Muslim, non-Palestinian teachers” about the use of
the novel “The Lemon Tree, ” in a classroom where
Plaintiff served as a translator during a webcam session with
the book's protagonist. Id. at ¶¶ 14,
16. Plaintiff does not dispute that the parent's
complaint was in writing, and it neither referenced Plaintiff
nor the translation services which she provided. Id.
at ¶ 15. Rather, Plaintiff maintains that she never read
the parent's written complaint. Pl's. Facts, ¶
2014, an incident occurred where Plaintiff's students
apparently misunderstood her lesson about the actions of John
Brown at Harper's Ferry, prompting a debate about whether
Osama bin Laden was a terrorist; Plaintiff, in no way,
intended to suggest Osama bin Laden was not a terrorist.
Id. at ¶ 17. Plaintiff's contract was
renewed for the following 2014/2015 school year, and she was
assigned to teach U.S. History and Global Studies.
Id. at ¶ 20. Plaintiff does not dispute the
renewal of her contract, but she clarifies that she was
“offered a position” for the new school year
prior to the “John Brown/Osama bin Laden”
incident. Pl's. Facts, at ¶ 20.
parties dispute the events which occurred on September 8,
2014, during the first week of Plaintiff's second year of
teaching. According to Defendants, some of Plaintiff's
Jewish students construed Plaintiff's comments, during a
class, as having asked them to identify their religious
affiliations. Defs. Facts, at ¶ 21. Although Plaintiff
denies this fact, she admits that a parent whose child was
allegedly questioned subsequently wrote a complaint, in which
the parent expressed her disapproval and notified the school
that her daughter's civil rights had been violated.
Id. At ¶ 22. Other parents whose children were
allegedly questioned requested to have their children removed
from Plaintiff's classroom. Id. at ¶ 24.
September 8, 2014, in a Facebook post, a student alleged that
Plaintiff's brother was a terrorist. Id. at
¶ 25. Plaintiff's mentor re-published the Facebook
post to a classroom which was taught by two of his
colleagues, after which all three individuals were
reprimanded for such actions. Id. at ¶¶
28-29. The Facebook post, as well as the aforementioned
parent's written complaint, were addressed by the school
during two meetings with Plaintiff on September 9, 2014, one
of which was recorded, and during a third recorded meeting on
September 11, 2014. Id. at ¶ 30.
was called over the telephone to attend the recorded meeting
on September 9, 2014, which took place in Defendant
Cooley's office. Id. at ¶ 31. During the
meeting, the following information was relayed to Plaintiff:
a “call had been made [to the District's attorney]
to find out what could be done about the Facebook
post”; “we do not condone this behavior”;
and “we will do what we can in terms of what the
attorney says we can do.” Id. at ¶¶
32-33. Plaintiff was also provided with an opportunity to
explain the lesson which prompted some students to believe
that they had been asked to identify their religious
affiliations. Id. at ¶ 34. Defendants explain
that, at no point during this meeting was Plaintiff accused
of discriminating against Jewish children, nor did they
suggest that Plaintiff intended to “single [Jewish
children] out by religion.” Id. at
¶¶ 36-37. However, Plaintiff maintains that
“a reasonable person in her circumstances could feel
and believe that” various unspecified “portions
of the conversation were accusatory.” Pl.'s Facts,
the meeting on September 11, 2014, Plaintiff was again
informed that the student's Facebook post was
“unacceptable, ” and that the student's
mother “was horrified and conveyed her
apologies.” Defs.' Facts, ¶ 38. In addition,
while Defendants stated that they could not punish the
student, because his Facebook post was allegedly protected by
the First Amendment, Plaintiff was advised, on multiple
occasions, that she could contact her union in order to
determine if she had a private cause of action. Id.
at ¶¶ 39-40. The parties dispute the manner in
which the remainder of the meeting was conducted. According
to Defendants, although Plaintiff's brother was
discussed, it was only within the context of the
student's Facebook post, and Plaintiff was never
questioned about him; rather, Plaintiff voluntarily shared
information about him. Id. at ¶¶ 41-42.
However, Plaintiff avers that there was a “lengthy
colloquy” about Plaintiff's brother, during which
“Defendants fully engaged in that process and asked her
questions.” Pl.'s Facts, ¶¶ 41-42.
in the beginning of the 2014/2015 school year, Plaintiff
engaged in a lengthy email exchange with a student's
parent, lasting for a period of more than several months.
Defs.' Facts, at ¶ 44. Plaintiff subsequently wrote
to her mentor, Mr. DeTample, and stated that “I cannot
deal with this mom. I'm not going to reply to her at
all.” Id. Defendants also chronicle an
incident wherein Plaintiff allegedly used a paper which the
student wrote as an exemplar in a class, in order to
embarrass that student. Plaintiff explains that the
supervisor of the English Department recommended that she
provide examples of “A, ” “B, ” and
“C” papers to her students for educational
purposes. Id. at ¶ 44; Pl.'s Facts, ¶
parties also dispute an incident which allegedly occurred
during an unspecified time of Plaintiff's second year of
teaching. According to Defendants, Plaintiff mistreated a
student with accommodations mandated by Section 504 of the
Americans with Disabilities Act (the “Section 504
student”), after which her mother requested to have her
removed from Plaintiff's classroom. Id. at
¶¶ 48-49. Conversely, Plaintiff disputes that she
mistreated the Section 504 student, and, according to
Plaintiff, the guidance counselor actually suggested to
remove the Section 504 student from her classroom, and that
the Section 504 student's mother merely concurred with
that recommendation. Pl.'s Facts, ¶ 49.
April 14, 2015, Plaintiff received an email from Defendant
Lucas, informing her of a meeting scheduled for April 16,
2015, and her right to be represented by a member of the
union. Defs.' Facts, ¶¶ 56-57. Plaintiff
attended the meeting with Adam Leonard, a colleague and union
representative, during which Defendant Lucas informed
Plaintiff that her contract for the following school year
would not be renewed. Id. at ¶ 59. During the
relevant timeframe, three other non-tenured social studies
teachers, like Plaintiff, did not have their contracts
renewed-they were all “Caucasian, non-Arab, non-Muslim
and non-Palestinian.” Id. at ¶ 52.
Moreover, two of the non-tenured social studies teachers were
male, while the remaining one was female. Id. at
April 21, 2015, Defendant Steffner provided Plaintiff with
written notice of the non-renewal. Id. at ¶ 60.
On May 18, 2015, Plaintiff received a second notice, wherein
Defendant Steffner stated the reasons for non-renewal, and
she advised Plaintiff of her right to request that the Board
review the decision. Id. at ¶ 61.
15, 2015, Plaintiff appeared at a hearing before the Board in
order to overturn the non-renewal of her contract.
Id. at ¶ 62. On the advice of her union
representative, Plaintiff chose to have the hearing conducted
in a private executive session, which was only attended by
the following parties: Board members and counsel, Plaintiff
and her union representative, and Defendant Steffner.
Id. at ¶¶ 63-65. On June 17, 2015,
Defendant Steffner provided Plaintiff with written notice,
which stated that “the Board did not vote to overrule
the recommendation that your employment contract be
non-renewed for the 2015-2016 school year, ” and that
her employment would end on June 30, 2015. Id. at
last day of the 2014/2015 school year, the Section 504
student published an email post, wherein she complained that
she and her mother were being blamed for the non-renewal of
Plaintiff's contract. Id. at ¶ 67. A
substitute teacher was subsequently assigned to
Plaintiff's classroom for the remainder of the school
day. Id. at ¶ 67. On July 16, 2015, two FBI
agents visited Plaintiff at her home, because they received
information which indicated that, while Plaintiff was at the
private executive session held before the Board, she
allegedly stated that “they [members of the Board] will
be sorry if I am fired.” Id. at ¶ 69.
Plaintiff denies having made such a statement. Pl.'s
Facts, ¶ 69.
December 14, 2015, Plaintiff filed the instant action. In her
Third Amended Complaint, Plaintiff asserts the following five
causes of action against Defendants: (Count I) employment
discrimination on the basis of race, national origin, and
religion in violation of Title VII and NJLAD; (Count II)
disparate treatment in violation of Title VII and NJLAD;
(Count III) retaliation in violation of Title VII and NJLAD;
(Count IV) discriminatory discharge in violation of Title VII
and NJLAD; and (Count V) violation of the Fourteenth
Amendment and the New Jersey Constitution. TAC, ¶ 52-76.
instant matter, Defendants move for summary judgment, arguing
that Plaintiff has failed to produce any admissible evidence
which supports her causes of action against Defendants. In
addition, Defendants contend that their decision not to renew
Plaintiff's contract was based on legitimate,
non-discriminatory reasons. In Plaintiff's six-page
opposition brief, Plaintiff does not address Defendant's
argument concerning the sufficiency of Plaintiff's
evidence to prove her prima facie case as to all the
claims, but rather merely maintains that the proffered
reasons for the non-renewal of her contract are pretextual.
Plaintiff also submits her own sworn certification, and
certifications from Derek Khoudja and Darrell DeTample, both
of whom are Plaintiff's former colleagues.
STANDARD OF REVIEW
Judgment is appropriate “if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any, show 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.”
Fed.R.Civ.P. 56(c). A factual dispute is genuine only if
there is “a sufficient evidentiary basis on which a
reasonable jury could find for the non-moving party, ”
and it is material only if it has the ability to
“affect the outcome of the suit under governing
law.” Kaucher v. County of Bucks, 455 F.3d
418, 423 (3d Cir. 2006); see also Anderson v. Liberty
Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes over
irrelevant or unnecessary facts will not preclude a grant of
summary judgment. Anderson, 477 U.S. at 248.
“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. Indus. Crating Co., 358
F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477
U.S. at 255); see also Matsushita Elec. Indus. Co. v.
Zenith Radio Corp., 475 U.S. 574, 587 (1986); Curley
v. Klem, 298 F.3d 271, 276-77 (3d Cir. 2002).
party moving for summary judgment has the initial burden of
showing the basis for its motion. Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986). “If the moving
party will bear the burden of persuasion at trial, that party
must support its motion with credible evidence . . . that
would entitle it to a directed verdict if not controverted at
trial.” Id. at 331. On the other hand, if the
burden of persuasion at trial would be on the nonmoving
party, the party moving for summary judgment may satisfy Rule
56's burden of production by either (1)
“submit[ting] affirmative evidence that negates an
essential element of the nonmoving party's claim”
or (2) demonstrating “that the nonmoving party's
evidence is insufficient to establish an essential element of
the nonmoving party's claim.” Id. Once the
movant adequately supports its motion pursuant to Rule 56(c),
the burden shifts to the nonmoving party to “go beyond
the pleadings and by her own affidavits, or by the
depositions, answers to interrogatories, and admissions on
file, designate specific facts showing that there is a
genuine issue for trial.” Id. at 324; see
also Matsushita, 475 U.S. at 586; Ridgewood Bd. of
Ed. v. Stokley, 172 F.3d 238, 252 (3d Cir. 1999). In
deciding the merits of a party's 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).
can be “no genuine issue as to any material fact,
” however, if a party fails “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.” Celotex, 477
U.S. at 322-23. “[A] complete failure of proof
concerning an essential element of the nonmoving party's
case necessarily renders all other facts immaterial.”
Id. at 323; Katz v. Aetna Cas. & Sur.
Co., 972 F.2d 53, 55 (3d Cir. 1992).
move for summary judgment on Plaintiff's Title VII and
NJLAD claims, arguing that Plaintiff has failed to provide
any evidence to establish a prima facia case of
discrimination. Defendants' Motion for Summary Judgment
(“Defs.' Motion”), at 4-11. Defendants
alternatively argue that, even if Plaintiff has satisfied her
evidentiary burden on this motion, their decision not to
renew her contract was motivated by legitimate,
non-discriminatory reasons. Id., at 12-21. Plaintiff
does not respond to Defendants' ...