WILLIAMS et al v. ROWAN UNIVERSITY

Filing 73

OPINION. Signed by Judge Renee Marie Bumb on 12/11/2014. (tf, )

NOT FOR PUBLICATION

[Docket Nos. 55 & 64]

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

RICHARD A. WILLIAMS,
Civil No. 10-6542 (RMB/AMD)
Plaintiff,
v.
ROWAN UNIVERSITY and
DONALD H. FARISH,

OPINION

Defendants.
Appearances:
Fredric J. Gross
7 East Kings Highway
Mt. Ephraim, NJ 08059
Attorney for Plaintiff
Jacqueline Augustine
Office of the NJ Attorney General
RJ Hughes Justice Complex
PO Box 112
Trenton, NJ 08625
Attorneys for Defendant
BUMB, United States District Judge:
I.

Introduction:

This matter comes before the Court upon a motion for summary
judgment submitted by Defendants Rowan University (“Rowan”) and
Donald Farish (“Farish”), the former President of Rowan.
No. 55].

[Docket

Also pending is Plaintiff Richard A. Williams’ (the

“Plaintiff”) cross-motion for sanctions [Docket No. 64].

1

For the

reasons set forth below, Defendants’ motion is granted and
Plaintiff’s motion is denied.

II.

Factual Background: 1

A. Introduction
Pursuant to his Second Amended Complaint (the “SA Complaint”),
Plaintiff asserts causes of action related to alleged race
discrimination and retaliatory action by the Defendants.

The SA

Complaint contains two counts: Count I for alleged unlawful
discrimination based on race asserted pursuant to 42 U.S.C. § 1981,
via 42 U.S.C. § 1983, and Count II asserts claims for alleged
retaliation in violation of N.J.S.A. § 2C:28-5.b (part of the
criminal code dealing with retaliation against witnesses), 2 §

1

Where there are significant factual disputes between the parties,
the facts should be construed in favor of the non-moving party. See
Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004). In addition, where
Plaintiff has not expressly disputed a material fact asserted by
Defendants, those facts are deemed admitted for purposes of this
motion. See Local Rule 56.1 (“any material fact not disputed shall
be deemed undisputed for purposes of the summary judgment motion.”).
N.J.S.A. 2C:28-5.b, is a criminal statute. “A person commits an
offense if he harms another by an unlawful act with purpose to
retaliation for or on account of the service of another as a witness
or informant. The offense is a crime of the second degree if the
actor employs force or threat of force. Otherwise it is a crime of
the third degree.” In the event that Plaintiff is attempting to
bring a claim under N.J.S.A. 2C:28-5.b, such claim is dismissed
because this Court is without jurisdiction to hear state criminal
matters.
2

2

10:5-12(d)(the New Jersey Law Against Discrimination) and § 10:6-2.C
(the New Jersey Civil Rights Act).

See SA Complaint Ct. II, ¶ 30.

Plaintiff is an African American male who became employed as
Rowan University’s Equal Opportunity/Affirmative Action (“EEO/AA”)
officer and Director in May 1984.

Defs.’ Statement of Material Fact

(“DSOF”) and Pl.’s Response to Statement of Material Fact (“PRSOF”)
at ¶ 3-4.

Defendant Rowan is a public university in the State of

New Jersey. Id. at ¶ 6.

Defendant Farish is a white male who was

the president of Rowan from 1998 until 2011.

Id. at ¶ 5.

Rowan has

several policies to prohibit discrimination in the workplace.
at ¶¶ 7-12.

Id.

These policies encourage employees to report prohibited

conduct to the EEO/AA Officer.

Id. at ¶ 13.

B. Plaintiff’s Job Responsibilities
As the EEO/AA Officer, Plaintiff reported directly to the
president and his job responsibilities included “monitoring the
institution’s commitments to Affirmative Action while assuring that
minorities, women, and handicapped individuals had fair access to
position vacancies.”

PRSOF at ¶ 21. According to Plaintiff’s job

description, Plaintiff also had to
(m)onitor the compliance of all University policies and
procedures to ensure non-discrimination and a working
environment free from harassment. Develop, implement, maintain
and modify the University's diversity management and

3

affirmative action plan. Investigate student and staff
allegations of discrimination and harassment . . . .
(Beran Certif., Ex. I).

Plaintiff states that he had no authority

to update the affirmative action plan and his proposed changes had
to be approved by the deputy attorney general and that investigations
were reserved to Robert Zazzalli, who was the assistant provost.
PRSOF at ¶ 26.
During his tenure, Plaintiff would delay the hiring process if
he deemed an applicant pool not diverse enough because he “was
required to take reasonable steps he needed necessary to ensure
non-discrimination in hiring.”

DSOF & PRSOF at ¶ 27.

Plaintiff

would look at the names of candidates for positions at Rowan, where
they went to school, their publications and what organizations they
belonged to in order “to help . . . determine if the pool had minority
candidates in it.”

PRSOF at ¶ 28.

C. Performance Reviews and the DeSanto Trial
Plaintiff received numerous negative performance reviews
during his tenure at Rowan.

While Plaintiff denies the relevance

of his performance reviews to his termination of employment, he does
not deny their existence.

Instead, he deems these negative reviews

as “unsupported malicious hearsay [that] reflects the turf jealousy
or racism of department heads who wanted to do hiring their own way,

4

regardless of equal opportunity law.”

Id. at ¶ 32.

Plaintiff

further states that he continued in office without demotion or
discipline and with routine pay raises prior to the Farish regime.”
Id. at ¶ 33.
Plaintiff received his first negative evaluation the year he
started at Rowan.

In a 1984 review by then Rowan president Mark M.

Chamberlain, Plaintiff was told that the president had serious
concerns about his performance.

The review states “you cannot

substitute your judgment of the qualifications of a particular
candidate for the judgment of others directly in the process.”
at ¶ 32.

DSOF

About a year later, on September 23, 1985, Rowan’s then

president Dr. Herman James wrote a similar letter about Plaintiff’s
performance.

The letter indicated that Plaintiff, inter alia,

“continued to impose [his] concerns of the appropriateness of the
search in matters not related to affirmative action.” DSOF & PROF
¶ 33-34.
In 1998, Defendant Farish became Rowan’s president.
¶ 36.

Farish received complaints that Plaintiff was too intrusive,

heavy-handed, and insulting in the hiring search process.
¶ 37.

DSOF at

Id. at

Farish testified at his deposition that Plaintiff’s conduct

became “illegal in the sense that [Plaintiff] was focused far too
much on having people who in his view met the requirements for the
position and wanting to substitute his judgment for the judgment of
5

the search committee . . . . [Plaintiff’s] view was if a minority
candidate meets the minimum qualifications for the position, the
search is over, hire them [but] that’s not how [Rowan] did things
at all.”

DSOF at ¶ 37 (quoting Farish Dep., Beran Ex. E at

111:1-112:5 & 112:5-9).

Farish testified that shortly after he

became president he “began to receive complaints from people as I
got to know them, people who were on the faculty, people who were
department chairs, people who said that Dick Williams was too
intrusive in the search process.”

(Farish Dep. at 111:9-13).

Plaintiff characterizes these “purported complaints [as] efforts by
departmental functionaries to free the hiring process [at Rowan] from
equal opportunity oversight.”

PRSOF at ¶ 37.

In 2000, Farish gave Plaintiff a negative written performance
review.

He stated that Plaintiff was improperly controlling the

hiring process by requiring his signature of approval to proceed with
both the original pool and short list of candidates and also by
sitting in on interviews and some meetings of search committees.
DSOF at ¶ 40.

Plaintiff denies that he took control of the hiring

process and that requiring his signature was “fully consistent” with
his responsibility to ensure non-discriminatory hiring.
¶ 40.

PRSOF at

Plaintiff received another unsatisfactory review in February

2002 wherein Farish cited his dissatisfaction with Plaintiff’s
performance (e.g., “his heavy-handed, bull-in-the-china shop
6

approach to [the] job”).

This was cited as the reason for not

offering Plaintiff a salary increase for that year.

DSOF at ¶ 43.

In September 2002, Plaintiff testified pursuant to subpoena in
the United States District Court in the matter of DeSanto v. Rowan
University, a reverse race discrimination case brought by a Rowan
employee.

Id. at ¶ 45.

A jury returned a verdict in favor of

plaintiff DeSanto and against Rowan.

In his SA Complaint, Plaintiff

avers that he was blamed for the DeSanto loss at a meeting that took
place on September 31, 2002.

Id. at ¶ 48.

Plaintiff contends that

he was clearly blamed for the DeSanto loss and, as a result, was not
given a 3 percent raise previously promised by Farish.
49.

PRSOF at ¶

In December of 2002, Farish sent Plaintiff a letter stating that

“[v]irtually the only evidence that appeared to be used to support
[the DeSanto verdict] came from your records and reports.”
¶ 51.

DSOF at

Farish’s letter went on to add:

[i]f this were a private company, there is no question in my
mind that you would have been terminated by this point. I
resist such an action based on my belief that your intentions
are noble, however flawed may be your methods.
DSOF at ¶ 52.
Approximately, three years later, on August 11, 2005, Katherine
Gover, Rowan’s Director of Human Resources, noted in Plaintiff’s
evaluation that she was not recommending a salary adjustment because:
Plaintiff was only meeting with new minority and women faculty (as

7

opposed to all new faculty), Plaintiff had a practice of not always
issuing final determination letters to those accused of violating
Rowan’s discrimination policy, and because Plaintiff left an
inappropriate note on a candidate’s resume.

DSOF at ¶ 54.

The

inappropriate note was attached to the resume of a candidate and
indicated that the individual was “easy on the eyes.” (DSPF & PRSOF
at ¶ 29).

Although the note was attached by someone other than

Plaintiff, Plaintiff admits that he failed to remove the note, which
was meant as a “joke”, (although he says he intended to), before
forwarding the resume to the Human Resources Director of Recruitment.
PRSOF at ¶ 29.

With respect to the remaining contents of Gover’s

letter, Plaintiff contends that the criticisms were unwarranted and
influenced by concerns about him articulated by Farish or others.
PRSOF at ¶ 53.
Defendants also claim that in the fall of 2005, Plaintiff failed
to investigate a student’s sexual harassment complaint. DSOF at ¶
55.

Plaintiff, however, argues that the alleged victim declined to

pursue the matter formally, which would have triggered an
investigation. Id. at ¶ 56.

The parties dispute whether an

investigation based on the student’s complaint alone was required.
DSOF & PRSOF ¶ 58-62.

However, Plaintiff admits that Robert

DeAugustine of the Human Resources unit investigated the matter after

8

a friend of the alleged victim complained about Plaintiff’s failure
to pursue the matter.

PRSOF at ¶60.

In a September 4, 2006 evaluation of Plaintiff, Richard Hale,
Interim Vice President for Administration and Finance, stated that
Plaintiff’s performance was “below average” because “individuals
appear to have little confidence in [his] ability to conduct a fair
process, consistent with applicable laws, rules and regulations” in
reference to Plaintiff’s investigations.

DSOF at ¶ 63-65.

Plaintiff contends that while Hale was not employed by Rowan during
the DeSanto trial, Hale was told by others that Plaintiff caused the
DeSanto loss and thus, the evaluation was retaliatory.
64.

PRSOF at ¶

Hale, however, still recommended that Plaintiff receive a 3

percent raise in 2006.

DSOF & PRSOF ¶ 66.

As of September 4, 2006, Defendants contend that Dr. Marie
Tiemann, the Executive Director of Human Resources, became
Plaintiff’s day-to-day supervisor.

DSOF at ¶ 67.

Plaintiff,

however, objected to her supervision because he could only be
supervised by a direct report to the president or his designee.
PRSOF at ¶ 67.

On December 5, 2006, Tiemann sent a letter to Hale

indicating that Plaintiff’s performance was not meeting the needs
of the campus community because they had “no confidence in [his]
ability to fairly hear discrimination and affirmative action

9

DSOF at ¶ 69. 3

complaints.”

As a result, Tiemann recommended giving

Plaintiff “one year’s notice and [placing] him on administrative
leave for the year.”

DSOF at ¶ 70.

D. Plaintiff’s Move to Temporary Assignment
Plaintiff was on sick leave from mid-November 2006 through late
January 2007 and February 7, 2007 through March 26, 2007.
PRSOF at ¶ 71.

DSOF &

On March 28, 2007, Plaintiff met with Vice President

Hale who told Plaintiff that he “would no longer be the affirmative
action officer effective June 30, 2007.”

DSOF at ¶ 72.

Plaintiff

then met with Farish in April 2007, and Plaintiff requested that he
be able to stay for another eighteen months so that he would receive
full health and retirement benefits after his retirement. DSOF at
¶ 73.

Plaintiff suggested a position for himself as an Educational

Opportunity Fund counselor (hereinafter "EOF Counselor") at Rowan’s
Camden campus.

DSOF at ¶ 74.

In consideration of Plaintiff's length of service at Rowan and
Plaintiff's failing health, President Farish told the Plaintiff that
he could report to the Dean of Rowan's Camden campus as an EOF
Counselor, which was a “temporary terminal assignment,” and that
Plaintiff could retire on December 31, 2008.
3

DSOF at ¶ 76.

As discussed in more detail below, Plaintiff seeks to bar the
testimony of Tiemann via a cross-motion filed for alleged discovery
abuses by Defendants. [Docket No. 64].
10

Plaintiff contends that there is “no document in the record that
indicates that anybody in the Rowan hierarchy is authorized to make
a ‘temporary terminal assignment.’” PRSOF at ¶ 76.

Despite his

denial as to the nature of his assignment or the authority to make
such assignment, Plaintiff does not deny the benefit of the new
assignment: he was able to reach “his twenty-five years of service
and receive permanent health benefits and pension for life, instead
of being terminated eighteen months earlier on June 30, 2007.”
at ¶ 77.

DSOF

Moreover, Plaintiff does not deny that he received the same

salary and benefits during the temporary assignment in the amount
of $83,926.78, even though the EOF position normally did not carry
such a high salary. DSOF at ¶¶ 79-80.
The Defendants contend that because the temporary position was
“terminal,” Plaintiff’s employment with Rowan would end on December
31, 3008, regardless of whether Plaintiff chose to retire.
Plaintiff contends that as an EOF counselor at Rowan’s Camden campus,
he was a member of the “AFT” - presumably the American Federation
of Teachers, though Plaintiff does not define that term for the Court.
PSOF at ¶ 78.

Plaintiff contends that the AFT contract makes no

provision for a terminal appointment and that the union’s collective

11

bargaining agreement does not contemplate such an assignment.

Id.

at 78-79. 4
On June 26, 2008, approximately six months before his end date,
Plaintiff spoke with Farish and requested that he remain an EOF
Counselor at Rowan’s Camden campus for an additional year.
¶ 81.

DSOF at

President Farish later conveyed to Plaintiff that Dr. Tyrone

McCombs (an African American male), the head of the Camden campus,
did not wish to extend Plaintiff's position.

Id. at ¶ 82.

Plaintiff

contends that McCombs was told by his (McComb’s) predecessor of
Farish’s directive “to get plaintiff off of Rowan’s Glassboro Campus”
because Plaintiff “had lost the university a lot of money in his prior
job as an affirmative action officer.” PRSOF at ¶ 83. 5

E. Plaintiff’s Retirement
After speaking with Farish, Plaintiff drafted a letter on June
26, 2008, stating that he was retiring.

DSOF at ¶ 84.

Two and

one-half months later, however, on September 12, 2008, Plaintiff sent
a letter to President Farish attempting to retract his anticipated
December 31, 2008 retirement.

DSOF at ¶ 84-85.

While the

Defendants aver that once an administrator submits retirement
4

The Plaintiff has not provided the Court with the collective
bargaining agreement.
5 Beyond Plaintiff’s argument there is no evidence of this in the
record. Instead, Plaintiff relies on the declaration of counsel and
an email drafted by counsel. See Gross Decl., Ex. 1.
12

paperwork it cannot be rescinded, Plaintiff contends that pursuant
to the AFT contract, the request for retirement and any effort to
rescind it must go to the Board of Trustees. 6
Farish informed Plaintiff on October 16, 2008 that he could not
retract his retirement.

Defendants communicated their denial to

Plaintiff in a letter dated October 16, 2008.

The letter reads, in

relevant part:
This is in response to your letter, dated September 12,
2008, seeking to recontract for another year.
Unfortunately, recontracting for another year is not
possible. I must inform you that as previously agreed,
your last day of employment at Rowan will be December 31,
2008.
As you know, you were provided with a terminal contract
ending on December 31, 2008. My letter to you, dated June
5, 2007 confirmed that you will leave University
employment on that date. By letter, dated July 25, 2007,
you confirmed your understanding of the arrangement. You
indicated that you would let me know by June 30, 2008 if
you requested a renegotiation of your continuation at
Rowan beyond December 31, 2008.
I received a letter from you, dated June 26, 2008, stating
your “formal indication” that you would be leaving Rowan
effective December 31, 2008. In reliance on your letter,
your name was forwarded to the Board of Trustees as part
of personnel actions. The Board formally accepted your
retirement from Rowan University at its September 10, 2008
meeting.
Defs.’ Ex. BB.

Thus, Plaintiff retired effective December 31, 2008.

Plaintiff does not deny that as a result of his retirement, he

6

Again, the contract was not provided by Plaintiff.
13

receives full health and retirement benefits for life. 7

DSOF at ¶

88.
III. Summary Judgment Standard
Summary judgment shall 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).

A fact is “material” if it will “affect the outcome of the suit under
the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 248 (1986). A dispute is “genuine” if it could lead a “reasonable
jury [to] return a verdict for the nonmoving party.”

Id.

When

deciding the existence of a genuine dispute of material fact, a
court’s role is not to weigh the evidence; all reasonable
“inferences, doubts, and issues of credibility should be resolved
against the moving party.”

Meyer v. Riegel Prods. Corp., 720 F.2d

303, 307 n.2 (3d Cir. 1983). However, a mere “scintilla of evidence,”
without more, will not give rise to a genuine dispute for trial.
Anderson, 477 U.S. at 252. Further, a court does not have to adopt
the version of facts asserted by the nonmoving party if those facts
are “utterly discredited by the record [so] that no reasonable jury”
7

Plaintiff responds to the Defendants’ factual assertion that they
could have insisted that Plaintiff leave effective June 30, 2007,
but extended his position as “a favor . . . so that [P]laintiff could
retire with a pension and health benefits for life” by stating “Rowan
would have invited a suit that much earlier if it had fired
[P]laintiff in 2007.” DSPF & PRSOF at ¶ 90.

14

could believe them.

Scott v. Harris, 550 U.S. 373, 380 (2007). In

the face of such evidence, summary judgment is still appropriate
“where the record . . . could not lead a rational trier of fact to
find for the nonmoving party . . . .”

Matsushita Elec. Indus. Co.

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence of
a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S.
317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). Then, “when a
properly supported motion for summary judgment [has been] made, the
adverse party ‘must set forth specific facts showing that there is
a genuine issue for trial.’” Anderson, 477 U.S. at 250 (quoting Fed.
R. Civ. P. 56(e)). The non-movant’s burden is rigorous: it “must point
to concrete evidence in the record”; mere allegations, conclusions,
conjecture, and speculation will not defeat summary judgment.
Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995); Jackson
v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC v.
Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009))
(“[S]peculation and conjecture may not defeat summary judgment.”).

15

IV.

Analysis of Motion for Summary Judgment

A. Count I (Race Discrimination, 42 U.S.C. § 1981)
Plaintiff’s only federal claim is one for race discrimination
asserted under 42 U.S.C. § 1981, via 42 U.S.C. § 1983.

Section 1981

provides:
All persons within the jurisdiction of the United States shall
have the same right in every State and Territory to make and
enforce contracts, to sue, be parties, give evidence, and to
the full and equal benefit of all laws and proceedings for the
security of persons and property as is enjoyed by white
citizens, and shall be subject to like punishment, pains,
penalties, taxes, licenses, and exactions of every kind, and
to no other.
42 U.S.C. § 1981. Subsection (c) of that statute provides that these
rights "are protected against impairment by nongovernmental
discrimination and impairment under the color of state law."

Id.

The only claim that has survived the Defendants’ statute of
limitations affirmative defense is Plaintiff’s allegation that
Defendants’ decision not to rescind his retirement decision was
racially discriminatory.

See Court’s Opinion, Docket No. 23 at 17.

For the reasons set forth below, this Court will grant summary
judgment in favor of Defendants on this claim.

1. Impact of State Actor Status
Defendants are correct that, pursuant to McGovern v. City of
Philadelphia, 554 F.3d 114, 120-21 (3d Cir. 2009), a 42 U.S.C. § 1981

16

claim cannot be asserted against a state actor.

That said, in the

instant case, as set forth in this Court’s prior opinion dealing with
the statute of limitations, Plaintiff may assert § 1981 claims
pursuant to § 1983 and such claims may be properly asserted against
a state actor.

See e.g., McGovern, 554 F.3d at 120-21 (“we hold that

‘the express cause of action for damages created by § 1983 constitutes
the exclusive federal remedy for violation of the rights guaranteed
in § 1981 by state governmental units.’”)(quoting Jett v. Dallas
Indep. Sch. Dist., 491 U.S. 701, 733 (1989); Byrd v. City of
Philadelphia, No. 12-4520, 2013 U.S. Dist. LEXIS 151321, at *12 (E.D.
Pa. Oct. 22, 2013)(allowing plaintiffs to amend the complaint to
allege their § 1981 claims under § 1983 against state actors).

Thus,

the Court cannot dismiss Plaintiff’s race discrimination claim on
this basis.
Contrary to the Plaintiff’s assertion in his opposition brief,
this Court has never considered the argument asserted by Defendants
that Rowan University is not a “person” for purposes of § 1983.
Opp. Br. at 2.

Pl.’s

While these arguments were presented in conjunction

with the motion to dismiss the Plaintiff’s original complaint, [see
Docket No. 10], this Court dismissed that complaint on other grounds
and never reached the merits of those arguments.
request for sanctions is, therefore, meritless.
at 5 n.1.
17

Plaintiff’s

See Pl.’s Opp. Br.

Moving to the merits of Defendants’ argument, the Court notes
that the SA Complaint is clear that Defendant Farish is “sued . .
. in his individual capacity.” Docket No. 26 at ¶ 8.

As such, this

Court need not review the Defendants’ argument that Farish is not
a “person” for purposes of § 1983. Hafer v. Melo, 502 U.S. 21, 23
(1991) ("We . . . hold that state officials sued in their individual
capacities are 'persons' for purposes of § 1983.").
With respect to Defendant Rowan, there is clear support for the
proposition that the university is not a person for purposes of §
1983.

Cottrell v. Keyshonna Norman, No. 12-1986, 2014 U.S. Dist.

LEXIS 101645, *23 n.7 (D.N.J. July 25, 2014)(“because § 1983 claims
may only be asserted against a ‘person’ . . .

these claims fail

against Rowan University. . . .”); cf. Davis v. Western Psychiatric
Inst. and Clinic, 146 F. App’x 563, 564-65 (3d Cir. 2005)(citing cases
finding that a state university is the alter ego of the state and
therefore not a “person” for purposes of § 1983); Musila v. Lock Haven
Univ., 970 F. Supp. 2d 384, (M.D. Pa. 2013)(finding that Lock Haven
University not a person for purposes of § 1983).

For this reason,

Plaintiff’s claim for race discrimination under § 1981, asserted
pursuant to § 1983, can be dismissed against Rowan University because
it is not a person for purposes of § 1983.

However, even if this

Court were to find that Rowan University was a person under § 1983,
the Court finds that summary judgment is nevertheless appropriate
18

because Plaintiff’s claim fails on the merits for the reasons set
forth in more detail below.
2. Eleventh Amendment Immunity Arguments
In the alternative to the argument that Defendants Rowan and
Farish, in his official capacity, are not persons under § 1983,
Defendants contend that both Rowan and Farish are entitled to
Eleventh Amendment immunity.

The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed
to extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another State,
or by Citizens or Subjects of any Foreign State.
This sovereign immunity “extends to state agencies and state
officers, ‘as long as the state is the real party in interest.’”
Estate of Lagano v. Bergen County Prosecutor's Office, 769 F.3d 850,
*16 (3d. Cir. 2014)(quoting Fitchik v. N.J. Transit Rail Operations,
873 F.2d 655, 659 (3d Cir. 1989)).

“To determine whether the state

is the real party in interest, this Court considers three factors:
(1) whether the money to pay for the judgment would come from the
state; (2) the status of the agency under state law; and (3) what
degree of autonomy the agency has.”
at 659).

Id. (citing Fitchik, 873 F.2d

This Court is careful to heed the Third Circuit’s

instruction that “the Eleventh Amendment inquiry is analytically
distinct from the question of whether a[n] . . . entity is a ‘person’
for § 1983 purposes.”

Id. at n.8.

19

To the extent Plaintiff asks for

prospective injunctive relief, such relief is not barred by the
Eleventh Amendment.

Smith v. Sec'y of Dep't of Environmental

Protection, No. 13-1569, 2013 U.S. App. LEXIS 19095, 2013 WL 5071305,
at *1 (3d Cir. Sept. 16, 2013).

That said, however, based upon this

Court’s determination that all of Plaintiff’s claims fail on the
merits, a review of what prospective relief Plaintiff may be seeking
is not warranted.
Turning to damages, the Defendants correctly point out that
other Courts have found that Rowan was entitled to Eleventh Amendment
immunity in other matters.

See e.g., Nannay v. Rowan College, 101

F. Supp. 2d 272, (D.N.J. 2000)(finding that Rowan was entitled to
Eleventh Amendment immunity after reviewing the factors set forth
in Fitchik in conjunction with affidavit from Rowan addressing those
factors).

In the instant matter, however, the Court finds it telling

that the Defendants have neither mentioned Fitchik in their moving
papers nor have they submitted an affidavit addressing those factors
as was done in the Nannay case.

Because Defendants have not provided

this Court with sufficient evidence to address the Fitchik factors,
and because this Court grants summary judgment on other grounds, the
Court will not resolve the issue of Eleventh Amendment Immunity.

See

Estate of Lagano, 769 F.3d at *17 (remanding case to the District
Court and directing the Court to apply Fitchik to determine whether
Eleventh Amendment immunity was applicable).
20

3. Race Discrimination Claims Against Rowan
In order for Plaintiff to establish liability against Rowan
under § 1981, Plaintiff must satisfy the requirements set forth in
Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658,
690 (1978), for establishing municipal liability under § 1983. 8 See
Thomas v. City of Philadelphia, 573 F. App’x 193, 197 n.4 (3d Cir.
2014)(noting that Monell would need to be applied to determine if
the City could be subject to liability); Daniels v. School Dist. of
Philadelphia, 982 F. Supp. 2d 462, 477 (E.D. Pa. 2013).

To establish

liability against Rowan under Monell, Plaintiff must demonstrate
that Rowan had a policy or practice that was the “‘moving force’
behind the alleged violation.”

Daniels, 982 F. Supp. 2d at 477.

Here, there is absolutely no evidence presented by Plaintiff that
an official policy or practice of Rowan was the moving force behind
the alleged race discrimination.

In fact, Plaintiff’s

counter-statement of material facts submitted in opposition to
summary judgment is entirely devoid of any reference to a custom or
policy of Rowan’s that was the “force” behind the discrimination
alleged.

As such, this Court will grant summary judgment in favor

of Defendants with respect to Plaintiff’s race discrimination claims

8

Rowan may not be held liable for the alleged conduct of its
subordinates under a theory of respondeat superior. See Monell, 436
U.S. at 691 (1978) (finding no vicarious liability for a municipal
"person" under 42 U.S.C. § 1983).
21

asserted against Rowan.

See Brown, 539 F. App’x at *27 (affirming

summary judgment as to claims against SEPTA where there was no
evidence of unconstitutional policy, custom or practice); Daniels,
982 F. Supp. 2d at 478 (granting summary judgment on § 1981 claim
where plaintiff “presented no evidence of a policy or practice on
the part of the School District endorsing race discrimination or a
failure on the part of the School District to train its employees
not to discriminate on the basis of race.”).
4. Race Discrimination Claims Against Farish
Defendants argue that Defendant Farish is entitled to qualified
immunity.

“An official sued under § 1983 is entitled to qualified

immunity unless it is shown that the official violated a statutory
or constitutional right that was “‘clearly established’” at the time
of the challenged conduct.”
2023 (2014).

Plumhoff v. Rickard, 134 S. Ct. 2012,

The question of whether Farish is entitled to qualified

immunity requires this Court to engage in a two-step analysis.
Pursuant to the first step, the Court must ask whether there is an
issue of fact as to whether Farish’s conduct violated Plaintiff’s
statutory right to be free from discrimination on the basis of race.
If the Court determines that such a right has been violated, taking
all inferences in favor of Plaintiff, it must then ask “whether that
right was ‘clearly established’ at the time of the challenged
conduct.” Dougherty v. Sch. Dist. of Phila., No. 13-3868, 2014 U.S.
22

App. LEXIS 22050, at *12 (3d Cir. Nov. 21, 2014).
The Court first turns to the determination of whether
Plaintiff’s right to be free from discrimination was violated when
Farish refused to rescind Plaintiff’s decision to retire.

In the

employment discrimination context, § 1981 claims are analyzed under
the familiar three-step, burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and refined
in Texas Department of Community Affairs v. Burdine, 450 U.S. 248
(1981). See Davis v. City of Newark, 285 F. App'x 899, 903 (3d Cir.
2008); Wallace v. Federated Dep’t Stores, Inc., 214 F. App’x 142,
144-45 (3d Cir. 2007); Campbell v. Sup. Ct. of N.J., No. 11-555, 2012
WL 1033308, at *17 (D.N.J. Mar. 27, 2012).
“At the first step, [plaintiff] must establish a prima facie
case of discrimination, meaning he must show that: (1) he is a member
of a protected class; (2) he satisfactorily performed his required
duties; (3) he suffered an adverse employment action; and (4) the
adverse employment action occurred "under circumstances that raise
an inference of discriminatory action . . . ."

Thomas v. City of

Phila., 573 F. App’x 193, 195-96 (3d Cir. July 15, 2014)(citing
Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003)). 9

9

The parties refer to the prima facie case under § 1983 for the denial
of equal protection. See Defs.’ Br. at 23; Pl.’s Opp. Br. at 7.
While Section 1981 has been deemed to be “essentially coterminous
with the Equal Protection Clause, in that ‘purposeful discrimination
23

“One way to meet the fourth element of the prima facie case is to
show ‘that the employer has treated more favorably similarly situated
persons not within the protected class.’” Id. at 196 (quoting Jones
v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999)).
There is no dispute that Plaintiff meets the first prong of the
test - he is an African American.

As to the second prong of the test,

as discussed above, there is ample evidence in the record that
Plaintiff was not satisfactorily performing the duties of his
position.

See e.g., Plaintiff’s performance review letters, Defs.’

Exs. D, H, J, K, M-T.

The Court will assume, however, that Plaintiff

was satisfactorily performing his duties as required under the prima
facie test and address the other factors.
Turning to the third prong of the test, whether the refusal to
allow Plaintiff to rescind his resignation constitutes an adverse
employment action, the parties do not address that test.

It is

questionable, however, whether Plaintiff can satisfy this prong.
An employer’s refusal to allow an employee to rescind his resignation
has been held not to be an adverse employment action. Refusing to
rescind a resignation, absent a contractual or statutory duty to do
that violates the Equal Protection Clause of the Fourteenth Amendment
will also violate § 1981’” Guan N. v. N.Y. City Dep't of Educ., 2014
U.S. Dist. LEXIS 44783, *86 (S.D.N.Y. Mar. 24, 2014)(citing Gratz
v. Bollinger, 539 U.S. 244, 276 n.23 (2003)), this Court finds the
more appropriate test is the test employed by the Third Circuit in
Thomas as set forth above, which incorporates the element set forth
by the parties regarding similarly situated individuals.
24

so, is “not an adverse employment action for the simple reason that
the employment relationship has ended.”

See Schofield v. Metro Life

Ins. Co., No. 03-357, 2006 WL 2660704 at *9 (W.D. Pa. Sept. 15, 2006)
aff’d 2007 U.S. App. LEXIS 25468 (3d Cir. Oct. 30, 2007); see also
Hibbard v. Penn-Trafford Sch. Dist., No. 13-622, 2014 WL 640253, at
*10 (W.D. Pa. Feb. 19, 2014) (“Because plaintiff’s resignation was
voluntary and there was no constructive discharge, the District’s
failure to accept her rescission of her voluntary resignation was
not an adverse employment action.”)(citations omitted)).
Here, Plaintiff contends that he became an AFT member and under
that collective bargaining agreement (“CBA”), he was somehow
entitled to rescind his resignation.

The Plaintiff has failed to

provide this Court with any evidence supporting this assertion.

In

fact, his deposition undermines the argument that the AFT deemed him
entitled to rescind his resignation.

See Pl.’s Dep. 136:10-22

(indicating that Plaintiff disagreed with the position taken by the
AFT that “there is nothing more that the AFT [could] do for you in
regards to this matter” because Plaintiff was “on a terminal
contract[.]”).

Moreover, he does not provide this Court with a copy

of the allegedly relevant CBA and the brief language he cites from
that agreement does not support his point.

Plaintiff cites to

“Article XIII.A” that purportedly states that “Appointment and
reappointments of employees shall be made by the Board of Trustees
25

of each College.” PRSOF, ¶ 86, citing to Gross Decl. ¶ 4.

This

language, however, says nothing about a request to rescind a
resignation, as is the case here.

Thus, Plaintiff cannot establish

this prong of the prima facie test.
Even assuming that the refusal to rescind his resignation
constitutes an adverse action, Plaintiff has failed to provide any
evidence to demonstrate the fourth prong, that the alleged adverse
employment action occurred "under circumstances that raise an
inference of discriminatory action."

In Plaintiff’s Statement of

Material Facts, he lists the following as support for his allegation
that he was treated differently due to his race (and in support of
his state law retaliation claim):
•

Farish, Hall and Zazzali were all white males who “contrived
to remove [P]laintiff from Rowan in the shared
incredibly-mistaken [sic] belief that [P]laintiff’s
testimony caused the DeSanto loss.” PSOF at ¶ 101.

•

“Hale, Gover and Tiemann all signed documents adverse to
[P]laintiff which were subjective, laced with hearsay, and in
substantial measure inconsistent with the truth.” Id.

•

Plaintiff was entitled to have the Board of Trustees accept or
reject his effort to withdraw his notice of retirement. Id.

•

“Rowan permitted at least two non-black employees Grupenhoff
and Rowan – to with draw their notices of retirement during the
same time frame that Farish would not allow Plaintiff to do so.”
Id.

•

Farish had no authority to reject Plaintiff’s withdrawal of his
resignation, because only the Trustees have that authority. Id.
26

The Court notes that the mere fact that Farish is Caucasian is not
enough to satisfy this prong.

See Coulton v. Univ. of Penns., 237

Fed. Appx. 741, 748 (3d Cir. 2007) ("The mere fact that [the adverse
decision-makers] were of a different race than [the employee],
however, is insufficient to permit an inference of
discrimination.").

Instead, Plaintiff attempts to supply

sufficient evidence that he was treated differently from other
individuals similarly situated.

Pl.’s Opp. Br. at 7.

Specifically, Plaintiff cites to Dr. Richard Grupenhoff, a
non-African-American Professor who had requested to retire in
December of 2008 but was allowed to retract his retirement.
Plaintiff also cites to Dr. Janice Rowan, another
non-African-American professor who was also allowed to retract her
retirement request.

Id. at ¶ 11-12. 10

10

As Defendants point out, and

While not explicitly discussed by the parties, the Court notes that
Plaintiff’s deposition contains other statements regarding alleged
ways he was treated differently based on race. These amount to
nothing more than either vague or unsupportive conclusory assertions
insufficient to raise an inference of discrimination. See Pl.’s
Dep. 156-158 (stating that he believes he did not receive salary
increases because he was African American, but noting that he does
not know whether others who had performance issues received salary
raises. He also states that Rick Hale contacted him when he was on
sick leave telling him “not to work” and that this contact was,
somehow, a form of harassment because “someone else who is African
American [Vanetta Turner] . . . went out on sick leave not too long
after I came back, and they were hassling her to do work from home.
So which is it?”). Plaintiff’s attempt to create inconsistency here
27

Plaintiff does not deny, these two employees were full-time tenured
faculty members, unlike Plaintiff.
150:14-24).

DSOF at ¶ 92 (citing Pl.’s Dep.

During his deposition, Plaintiff learned – and does not

dispute - that an African American faculty member was permitted to
change his retirement date and that two Caucasian faculty members
were not permitted to change their retirement dates.

(Pl.’s Dep.

151:8-152:5).
Plaintiff argues that “[i]t makes no material difference that
the comparators were tenured faculty or that they operated under a
differently-named pension program.”

Pl.’s Opp. Br. at 7.

Instead,

Plaintiff contends that
[w]hat is crucial is that Farish arrogated to himself the right
to make the final decision on [P]laintiff’s effort to rescind
his notice of termination when only the Board of Trustees has
final authority to accept or reject such a rescission.
Therefore white comparators were allowed to put their
rescission requests to the Board of Trustees whereas Richard
Williams, an African American was not allowed to do so.

Pl.’s Br. at 7-8.

Plaintiff further argues that he cannot identify

any other employee who was selected for a temporary terminal
assignment because there is no authority for imposing such an
assignment on a Rowan employee and, therefore, he “was denied the

is futile. What this testimony reveals is that Defendants did not
want Plaintiff to work while on sick leave. How Plaintiff could view
this as a form of discrimination is bewildering.
28

Equal Protection of the Law when Farish singled him out for that bogus
job title.”

Pl.’s Br. at 9.

In order to qualify as similarly situated, the “relevant aspects
of employment need to be nearly identical,” to the purported
comparator.

Smart v. City of Phila., No. 10-1096, 2013 U.S. Dist.

LEXIS 73588 at *17 (E.D. Pa. May 23, 2013)(finding that plaintiff
could not establish a prima facie case under § 1981 under Third
Circuit precedent where alleged comparators had a different level
of seniority); see Warenecki v. City of Philadelphia, No. 10-1450,
2010 U.S. Dist. LEXIS 116912, *22 (E.D. Pa. Nov. 3, 2010)(noting that
to be similarly situated requires comparators to have engaged in the
same conduct as a plaintiff and share all relevant aspects of
employment).

Here, as Plaintiff admits, the alleged similarly

situated individuals were tenured professors in clear contrast to
Plaintiff’s position.

Moreover, the alleged similarly situated

comparators have not been shown by Plaintiff to have had similar
performance issues.

See Warfield v. McKenzie, 460 F. App’x 127, 130

(3d Cir. 2012)(noting that even if plaintiff and comparator had the
same responsibilities, they did not have the same performance
problems and thus were not similarly situated).

Additionally,

while Plaintiff contends he is unable to find another individual who
was given a temporary terminal assignment and allowed to rescind a
resignation, this Court notes that the bar is not that high; Plaintiff
29

has failed to identify any individual who was not a tenured faculty
member that was allowed to rescind a resignation.

See Smart,

10-1096, 2013 U.S. Dist. LEXIS 73588, at *17 (“To show that an
employee is ‘similarly situated,’ relevant aspects of employment
need to be nearly identical.”)(emphasis added).

In sum, Plaintiff

has failed to satisfy the fourth prong of the prima facie test by
providing evidence that others who were similarly situated were
treated more favorably.

See Thomas, 573 F. App’x at 196 (affirming

summary judgment on plaintiff’s § 1981 race discrimination claim
where plaintiff’s reliance on comparators was misplaced as both
alleged comparators differed from plaintiff).
Having failed to provide evidence of similarly situated
comparators that were more favorably treated, Plaintiff must provide
other adequate evidence to support an inference of discrimination.
See Warenecki, 2010 U.S. Dist. LEXIS 116912, at *22 (“In the
alternative, Plaintiff may establish the fourth element of her prima
facie case by producing other evidence adequate to support an
inference of discrimination.”).

To this end, Plaintiff argues that

Farish asked Plaintiff to stop enforcing equal opportunity in
construction projects and that the university gave a non-minority
applicant a “wired appointment as Vice-President of Student Affairs
even where a more qualified minority candidate had been ranked number
one by the search committee.”

Pl.’s Br. at 11.
30

Moreover, in his

brief,

Plaintiff avers that Farish asked Plaintiff in 1998, “What,

you don’t want to work for a white guy who is now the President?”
Id.

None of these averments is sufficient to raise an inference of

race discrimination related to Farish’s refusal to allow Plaintiff
to rescind his resignation in 2008.

See Joseph v. New Hersey Rail

Operations Inc., No. 13-4430, 2014 U.S. App. Lexis 18287, at *5 (3d
Cir. Sept. 24, 2014)(Here, "[e]ven if we were persuaded that the use
of the phrase 'you people' in this context would constitute direct
evidence . . . [Joseph] ha[s] not shown that [NJ Transit]'s decision
maker [—Wigod—] relied on [Joseph's] race" in deciding to terminate
him.”); Warfield, 460 F. App’x at 130 (finding that allegations that
plaintiff was subjected to excessive monitoring and scrutiny, yelled
at, belittled by her supervisor and required to wear suits while a
co-worker was allowed to dress more casually did not imply race
discrimination).
In sum, the record demonstrates that, instead of terminating
Plaintiff in 2007, Defendant Rowan voluntarily extended Plaintiff’s
employment to allow him to retire with full benefits, despite having
no obligation to do so.

Plaintiff has presented no evidence

demonstrating that Defendants were required to present his desire
to rescind his resignation to the Board of Trustees or that the
reasons for refusing to allow the rescission took place under
circumstances giving rise to an inference of discrimination.
31

Therefore, Plaintiff cannot establish a prima facie case of race
discrimination.

As there is no statutory violation, Farish is

entitled to qualified immunity and summary judgment will be granted
in favor of Farish on Plaintiff’s federal claim.
5. Plaintiff’s Due Process and Equal Protection Claims
Plaintiff’s SA Complaint appears to attempt to improperly
bootstrap time-barred claims for alleged violations of the
Fourteenth Amendment under § 1983 to his timely § 1981 claim (properly
asserted pursuant to § 1983).

For reasons already stated in this

Court’s prior Opinion, however, only Plaintiff’s § 1981 claim, again,
asserted pursuant to § 1983, is viable as his separate § 1983 counts
were barred under the applicable two year statute of limitations.
See Docket No. 23.

A § 1981 claim for race discrimination cannot

be conflated with separate and distinct claims brought pursuant to
§ 1983 for an alleged due process violation that is time barred.

See

Guan v. NYC Dep’t of Education, No. 11-4299, 2014 U.S. Dist. LEXIS
44783, *85 (S.D.N.Y. Mar. 24, 2014)(“Plaintiffs provide no reason
to think that § 1981 bears on their due process or Fourth Amendment
claims.”); Mack v. Ala. Dep't of Human Res., 201 F. Supp. 2d 1196,
1206 n.5 (M.D. Al. 2002)(stating, “[t]o put it bluntly, there is no
such thing as a Section 1981 claim under the [First Amendment or Due
Process Clause].”).

While there is also no separate viable § 1983

claim here for an Equal Protection violation, the Court notes again,
32

however, that Section 1981 has been deemed to be “essentially
coterminous with the Equal Protection Clause, in that ‘purposeful
discrimination that violates the Equal Protection Clause of the
Fourteenth Amendment will also violate § 1981.’”

Guan N. v. N.Y.

City Dep't of Educ., 2014 U.S. Dist. LEXIS 44783, *86 (S.D.N.Y. Mar.
24, 2014)(citing Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003)).
In sum, the only permissible federal claim in this matter is
Plaintiff’s § 1981 claim for race discrimination asserted pursuant
to § 1983, which “overlaps” with the protections offered by the Equal
Protection Clause.

For the reasons already set forth above, this

Court finds that Defendant Farish is entitled to summary judgment
on this claim.
Finally, if this Court were to find that Plaintiff can assert
a Due Process claim pursuant to § 1981 (again, via the vehicle of
§ 1983), it finds that Plaintiff has failed to present sufficient
evidence to create a genuine dispute of material fact as to whether
he was denied either substantive or procedural due process (it is
unclear from both his complaint and the motion papers which is being
alleged) because of his race.

As set forth in detail above,

Plaintiff has presented no evidence whatsoever to support his

33

argument that he was prevented from rescinding his resignation
because of his race. 11
B. Count II:

New Jersey Law Against Discrimination

In Count II of the SA Complaint, Plaintiff alleges that he was
retaliated against for testifying in the DeSanto trial in 2002 in
violation of the New Jersey Law Against Discrimination (“LAD”), N.J.
Stat. Ann Sec. 10:6-2.

In order to prove a prima facie case of

retaliation under the LAD, plaintiff must show that: (1) he engaged
in a protected activity known to the defendant; (2) he was thereafter
subject to an adverse employment decision by the defendant; and (3)
there was a causal link between the two.

Sanchez v. SunGard

Availability Servs. LP, 362 F. App'x 283, 287 (3d Cir. 2010).

Once

plaintiff meets all three prongs of a prima facie retaliation case,
the burden-shifting analysis of McDonnell Douglas Corp. v. Green,
411 U.S. 792, 802 (1973) applies.
467, 479 (App. Div. 1999).

Kolb v. Burns, 320 N.J. Super.

Under McDonnell-Douglas, once a

plaintiff proves a prima facie case, “defendant has the burden of
presenting evidence that articulates some legitimate,
non-discriminatory reason for the employee’s discharge.

Upon such

presentation, the presumption disappears and the plaintiff has the

In addition, the Third Circuit has made clear that even tenured
public employment is not a fundamental property interest entitled
to substantive due process protection. Nichols v. Pennsylvania State
Univ., 227 F.3d 133 (3d Cir. 2000).
11

34

burden of proof to establish genuine issues of material fact
regarding whether employer’s proffered explanation is pretextual,
or that retaliatory discrimination was the more likely reason for
the discharge.”

Kolb, 320 N.J. Super. at 478-79.

The burden on the

employer is “relatively light,” Fuentes v. Perskie, 32 F.3d 759, 763
(3d Cir. 1994), and does not oblige the employer to persuade a court
that it was actually motivated by the proffered reasons.

Slahoda

v. United Parcel Service, 207 N.J. Super. 145, 153 (App. Div. 1986).
Once the employer meets the burden of production, the burden
of proof then shifts back to the plaintiff who then must prove that
the alleged reasons articulated by the defendants were not the true
reasons behind the action, but merely pretext for discrimination.
McDonnell Douglas, 411 U.S. at 804.

“To prove pretext, ‘a plaintiff

may not simply show that the employer’s reason was false by must also
demonstrate that the employer was motivated by discriminatory
intent.’”

Maddox, 2014 U.S. Dist. LEXIS 138518, at *44 (quoting Zive

v. Stanley Roberts Inc., 182 N.J. 436 (2005)). “The plaintiff retains
the ultimate burden of proving that the retaliatory motive played
a determinative role in the adverse decision.”

Donofry v. Autotote

Systems, Inc., 350 N.J. Super. 276, 292 (App. Div. 2001).
As to the first prong, Plaintiff alleges that he engaged in
protected activity when he testified truthfully in the DeSanto trial

35

in 2002. 12

Defendants do not dispute this element for purposes of

the within motion.

In order to satisfy the second prong of the LAD

claim, Plaintiff must show a materially adverse employment action.
Under Plaintiff’s theory of the case, he suffered “adverse events”
from 2002 to 2008 in retaliation for his testimony.

Without saying

so, he attempts to thread together various events, i.e., denial of
pay raises, his temporary assignment, and the failure to rescind his
retirement as one continuing violation.

He appears to do so in an

attempt to salvage otherwise time-barred claims.

The Supreme Court

has declared, however, that the continuing violation doctrine has
no applicability to "[d]iscrete acts such as termination, failure
to promote, denial of transfer, or refusal to hire" because "[e]ach
incident of discrimination and each retaliatory adverse employment

The court notes that Plaintiff’s state law claims may be barred
entirely by the applicable two-year statutes of limitation
applicable to both his NJCRA and LAD claims. Brown v. City of Newark,
No. 09-3752, 2010 U.S. Dist. LEXIS 40564, 2010 WL 1704748, at *4
(D.N.J. Apr. 26, 2010)([a]lthough the NJCRA contains no express
statute of limitations, . . . the language of New Jersey’s
generally-applicable personal injury statute of limitations []
combined with the NJCRA’s similar purpose and design to § 1983, .
. . convinces this Court that New Jersey’s two-year limitation
applies to the NJCRA.”) (citation omitted); Jackson v. Chubb Corp.,
45 F. App’x 163, 165 (3d Cir. 2002)(two-year statute of limitations
applied to LAD claims). The parties have not briefed the issue for
this Court on summary judgment. Because this Court grants summary
judgment in favor of Defendants, finding that there is no evidence
of discrimination, even assuming that Plaintiff is proceeding under
a continuing violation theory. Therefore, the Court need not
resolve the statute of limitations issue.
12

36

action constitutes a separate actionable 'unlawful employment
practice.'" AMTRAK v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061,
153 L. Ed. 2d 106 (2002). 13

Even assuming a continuing violation

theory, the record does not support the requisite causal connection
between the protected activity and any adverse action complained of
by Plaintiff, as required under the third prong.

True, a close

temporal connection between the protected activity and the adverse
action may be sufficient to establish this prong.

Watkins v. Nabisco

Biscuit Co., 224 F. Supp. 2d 852, 872-73 (D.N.J. 2002).

However,

a gap of as little as three months between the protected activity
and the adverse action has been found to be, without more,
insufficient.

Hussein v. UPMC Mercy Hosp., 466 F. App'x 108, 112

n.4 (3d Cir. 2012).
Where, as is the case here, the temporal proximity is not
suggestive of retaliation, courts generally examine the record to
determine whether "the proffered evidence, looked at as a whole, may
suffice to raise the inference [of causation]." LeBoon v. Lancaster
Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007).

For

example, a plaintiff can establish causation by alleging
antagonistic conduct or animus by the employer during the intervening
period between the protected activity and the adverse employment
13

While this is a Title VII case, New Jersey generally follows Title
VII federal precedent in interpreting the LAD. McKenna v. Pacific
Rail Serv., 32 F.3d 820, 838 (3d Cir. 1994).
37

activity, and inconsistent reasons proffered by the employer for the
plaintiff's discharge.

See Marra v. Philadelphia Hous. Auth., 497

F.3d 286, 302 (3d Cir. 2007) ("Where the time between the protected
activity and adverse action is not so close as to be unusually
suggestive of a causal connection standing alone, courts may look
to the intervening period for demonstrative proof [of causation],
such as actual antagonistic conduct or animus against the employee").
Plaintiff attempts to build his case with respect to each
adverse event – such as a negative evaluation or lack of a pay raise
– by attributing it to Defendants’ retaliation for his 2002
testimony.

According to Plaintiff, this retaliation began after his

testimony in 2002 and ended in December 2008 when he was unable to
rescind his resignation.

Plaintiff admits that while “most of the

retaliation occurred more than six years after [he] testified,
Zazzalli’s telling Hale three or four years after the testimony that
he caused the DeSanto loss was soon followed by an orgy of adverse
statements about [his] performance from Hale, Gover, and Tiemann.”
Pl.’s Brief, at 14.

(emphasis added).

He argues that a jury could

reasonably infer that these untrue statements were solicited not as
fair evaluations but to paint a picture justifying his removal from
the EEO/AA position.

Id.

The record simply does not support Plaintiff’s claims.
Plaintiff attempts to build his case based on inferences upon
38

inferences and assumptions.

See Johnson v. Multi-Solutions, Inc.,

493 Fed. Appx. 289, 292 (3d Cir. June 28, 2012)(“An inference based
upon speculation or conjecture does not create a material factual
dispute sufficient to defeat entry of summary judgment”); Phillis
v. Harrisburg School Dist., No. 07-1728, 2010 U.S. Dist. LEXIS 31413,
at *53 (M.D. Pa. Mar. 31, 2010)(finding that attenuated inferences
were insufficient to defeat summary judgment), aff’d, 2011 U.S. App.
LEXIS 11821 (3d Cir. June 10, 2011).

Under Plaintiff’s theory of

the case, anyone who gave Plaintiff a negative evaluation with
knowledge (through hearsay, lore, or otherwise) 14 of the DeSanto
trial and Plaintiff’s supposed contribution to the loss, acted out
of retaliation.

Plaintiff must do more than rest on this theory,

and he has failed to meet his burden.
Even looking at each separate adverse event of which Plaintiff
complains – and again assuming a continuing theory violation to avoid
the glaring statute of limitations issue – there is no sufficient
evidence to support the causal connection.

For example, shortly

after the trial, Farish – who had previously given Plaintiff negative
reviews – permitted Plaintiff to stay as the EEO/AA Director despite
his misgivings.

As he stated in his December 12, 2002 letter, “[i]f

this were a private company, there is no question in my mind that
Many of the individuals Plaintiff alleges were antagonistic
towards him were not present at Rowan during the DeSanto trial.
14

39

you would have been terminated by this point.

I resist such an action

based on my belief that your intentions are noble, however flawed
may be your methods.”

DSOF at ¶ 52.

Plaintiff was permitted to

continue to work as the Director for 4 1/2 years.

During this time,

he was given pay increases in 2005 (1%) and 2006 (3%) despite negative
evaluations.

Moreover, when Defendants terminated Plaintiff as the

EEO/AA Director, Plaintiff asked to stay on for another eighteen
months so that he could receive lifetime health and pension benefits.
Defendants permitted him to do so and extended him a temporary
position.

Defendant Farish offered Plaintiff this temporary

position even though Dr. Tyrone McCombs did not wish to extend the
position to Plaintiff. 15

And even though that new position did not

carry a salary of the size Plaintiff was making, $83,936.78,
Plaintiff was permitted to receive his same salary and benefits.
Plaintiffs’ contention that “[nobody] in the Rowan hierarchy is
authorized to make a ‘temporary terminal assignment’ of an employee,”
DSOF ¶ 75, even if true, ignores the reason for the assignment:

to

provide Plaintiff with lifetime benefits which he would otherwise
not receive.

This is hardly retaliatory conduct on the part of

Defendants.

Plaintiff objects to this evidence as hearsay testimony.
course, McCombs testimony would be permissible.
15

40

Of

As for Plaintiff’s termination in 2007 as the EEO/AA Director
and transfer to a less prestigious positon, Defendants argue that
Gover had no knowledge of Plaintiff’s testimony and that Hale and
Tiemann were not at the University in 2002 and, therefore, did not
have knowledge of his testimony, but rather had lost confidence in
Plaintiff’s abilities.

Plaintiff responds that a jury should be

permitted to infer that these individuals as well as Gover acted out
of retaliation because of his 2002 testimony.

Yet, the record

supports no such conclusion, let alone an inference.
Plaintiff’s further allegation that he was retaliated against
when he was not permitted to rescind his resignation similarly has
no support in the record.

As discussed supra, those individuals who

were permitted to change their retirement dates were those who were
tenured or participants of the Faculty Transitional Retirement
Program, neither of which Plaintiff was.

Plaintiff’s argument that

the decision to permit his retirement rescission was in retaliation
for his testimony six years earlier - - by individuals who were
directly involved with the DeSanto trial - - is just that, argument.
Moreover, even if Plaintiff has met his burden of showing a prima
facie retaliation case - - which he has not - - Defendants have shown
legitimate business reasons, as discussed at length supra, and
Plaintiff has failed to show that such reasons were pretextual, other
than circling back to his theory that everything each supervisor did
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at Rowan after his testimony was done out of retaliation and an effort
to eventually justify his removal five years later as the EEO/AA
Director, and six years later as a Rowan employee. “‘[T]o prove
pretext . . . a plaintiff must do more than simply show that the
employer’s [proffered legitimate, non-discriminatory] reason was
false; he or she must also demonstrate that the employer was motivated
by discriminatory intent.’”

El-Sioufi v. St. Peters University

Hosp., 382 N.J. Super. 145, 173 (2005)(quoting Viscik v. Fowler
Equip. Co., 173 N.J. 1, 14 (2002)).

“The plaintiff must submit

evidence that either casts sufficient doubt upon the employer’s
proffered legitimate reason so that a fact finder could reasonably
conclude it was fabricated, or that allows the fact finder to infer
that discrimination was more likely than not the motivating or
determinative cause of the termination decision.”

Id. (quoting

Svarnas v. AT&T Commc’ns, 326 N.J. Super. 59, 82 (App. Div. 1999)).
Bald assertions and vague theories cannot survive summary
judgment.

Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 541

(1995) (citation omitted).

In short, Plaintiff can provide no proof

that Rowan’s legitimate business reasons for its decisions were
pretextual.

Other than his subjective view of how Rowan should have

treated him, Plaintiff has not pointed to any evidence that would
either cast sufficient doubt on Rowan’s legitimate business reasons

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or permit a factfinder to infer by a preponderance of the evidence
that discrimination was more likely than not a motivating factor.
Defendants have introduced evidence that well before the
DeSanto trial Plaintiff had received a series of negative
evaluations.

See supra at 4-9.

negatively even after the trial.

Plaintiff continued to perform
Plaintiff does not argue that the

negative evaluations changed in intensity or scope after the trial;
rather he contends that no negative evaluation was ever warranted.
Despite his unsatisfactory performance evaluations, Plaintiff did
receive pay increases after the trial and, importantly, rather than
being terminated in 2007, Defendants permitted Plaintiff to stay an
additional eighteen months so that he could receive lifetime
benefits.

There is nothing before this Court besides innuendo to

suggest that Defendants’ reasons for any of the adverse events of
which Plaintiff complains was pretextual in any way.

Accordingly,

Defendants’ motion for summary judgment as to his LAD claim is
granted.
C.

Count II (New Jersey Civil Rights Claim)

In Count II, Plaintiff also alleges a violation of the NJCRA
in retaliation for his testimony in the DeSanto trial.

Under the

New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c):
Any person who has been deprived of any substantive due process
or equal protection rights, privileges or immunities secured
by the Constitution or laws of the United States, or any
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substantive rights, privileges or immunities secured by the
Constitution or laws of this State, or whose exercise or
enjoyment of those substantive rights, privileges or immunities
has been interfered with or attempted to be interfered with,
by threats, intimidation or coercion by a person acting under
color of law, may bring a civil action for damages and for
injunctive or other appropriate relief.
The New Jersey Civil Rights Act is modeled after 42 U.S.C. § 1983.
See Szemple v. Corr. Med. Servs., 493 Fed. Appx. 238, 241 (3d Cir.
2012)(“The NJCRA is interpreted as analogous to §1983.”). Because
Defendants Rowan and Farish in his official capacity are not
“persons” amenable to suit under the NJCRA, these claims are
dismissed. See Didiano v. Balicki, 488 Fed. Appx. 634, 639 (3d
Cir.)(affirming summary judgment where NJCRA claims dismissed
against the state and an individual in his official capacity).
Finally, even entertaining this claim on the merits, for the same
reasons discussed above, Plaintiff’s claim has no support in the
record.

Cottrell v. Wheels, 2011 U.S. Dist. LEXIS 26646, at *22-23

(D.N.J. Mar. 15, 2011)(“because Defendants' are entitled to summary
judgment regarding Plaintiff's retaliation claims, they are also
entitled to summary judgment regarding Plaintiff's NJCRA claim.”),
aff’d, 2012 U.S. App. LEXIS 1319 (3d Cir. N.J., Jan. 23, 2012).
Therefore, summary judgment is granted as to this claim.

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V.

Cross-Motion

Plaintiff has cross-moved to bar the consideration of testimony
by either Marie Tiemann or Robert Zazzali in the motion for summary
judgment and requests an award of attorney’s fees based on alleged
misconduct in the discovery process.
With respect to the testimony for Marie Tiemann, Plaintiff is
essentially appealing Judge Donio’s well-reasoned opinion that “the
Court is without authority to compel Ms. Tiemann, a non-party, to
appear for a deposition in New Jersey.”

Docket No. 59, at 8.

Under

New Jersey Local Rule 72.1, “a party may appeal from a Magistrate
Judge’s determination of a non-dispositive matter within 14 days
after the party has been served with a copy of the Magistrate’s
Judge’s order. . . .”

Judge Donio’s order was entered on October

9, 2013 and the instant cross-motion was not filed until March 29,
2014.
In addition, while Judge Donio ordered the Defendants to provide
Ms. Tiemann’s telephone contact information to Plaintiff, the Court
noted that she remained outside of the Court’s subpoena power.
remains the case.

This

Moreover, Judge Donio addressed Plaintiff’s now

repeated argument that Tiemann’s inclusion in the litigation control
group is somehow dispositive: “The Court further rejects Plaintiff’s
assertion that Defendants’ inclusion of Ms. Tiemann, a former
employee, within the litigation control group obligates Defendants
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to produce Ms. Tiemann, notwithstanding the fact that she resides
beyond the Court’ subpoena power.”

Docket No. 59 at 8.

Again,

Plaintiff is essentially seeking an untimely appeal of Judge Donio’s
decision and presents no case law compelling this Court to reach a
different decision than Judge Donio.
In addition, while Judge Donio noted that Plaintiff’s prior
motion was “denied without prejudice to the extent [that motion]
seeks ‘to bar[] Tiemann from testifying at trial,’” the instant
motion is not in anticipation of trial.

As all counts of the SA

Complaint have been dismissed, there will be no trial.

Finally,

there are no new facts or case law that bring Tiemann within the
subpoena power of this Court.

Thus, for the reasons already set

forth by Judge Donio, this Court will deny Plaintiff’s motion with
respect to Tiemann.
Plaintiff also asks this Court to bar consideration of Robert
Zazzalli’s testimony stating that, during his second deposition as
ordered by Judge Donio, Zazzali “repeatedly insisted that he had
absolutely no recollection of the [DeSanto post-mortem meeting].”
Docket No. 64-7.

Plaintiff states that this is in striking contrast

to Zazzalli’s earlier deposition wherein “Zazzalli’s recollection
of events was substantially intact and thorough.”

Id. at 5.

Notably, Plaintiff provides this Court with no deposition excerpts
in support of his point.

Other than mere speculation, Plaintiff has
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provided this Court with no evidence to support his contention that
Zazzali testified falsely under oath or that Defendants have
otherwise “pollut[ed] the waters of justice.”

Certainly, a failing

memory of a meeting that occurred 12 years prior can hardly be said
to constitute clear evidence of false testimony.

See United States

v. Dunnigan, 507 U.S. 87, 94 (1993)(“A witness testifying under oath
or affirmation violates this statute if she gives false testimony
concerning a material matter with the willful intent to provide false
testimony, rather than as a result of confusion, mistake, or faulty
memory.”).
Because there is no evidence of discovery misconduct, this Court
will deny Plaintiff’s cross-motion including his request for
attorney’s fees.

VI.

Conclusion

For all these reasons, Defendants' motion for summary judgment
is granted as to all counts.
is denied.

In addition, Plaintiff’s cross-motion

An appropriate Order will issue this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge

Dated: December 11, 2014

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