D'AMBROSIO v. CREST HAVEN NURSING & REHABILITATION CENTER

Filing 38

OPINION. Signed by Chief Judge Jerome B. Simandle on 9/21/2016. (tf, )

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

NICOLE D’AMBROSIO,

HONORABLE JEROME B. SIMANDLE

Plaintiff,
Civil No. 14-06541 (JBS/KMW)
v.
CRESTHAVEN NURSING &
REHABILITATION CENTER,

OPINION

Defendant.

APPEARANCES:

W. Charles Sipio
KOLMAN ELY PC
414 Hulmeville Avenue
Penndel, PA 19047
Attorney for the Plaintiff
Stephanie E. Farrell
COOPER LEVENSON, P.A.
1125 Atlantic Avenue
3rd Floor
Atlantic City, NJ 08401
Attorney for Defendant
SIMANDLE, Chief Judge:
I.

INTRODUCTION
Plaintiff Nicole D’Ambrosio (“Plaintiff”) filed this

lawsuit against her employer Crest Haven Nursing &
Rehabilitation Center (“Defendant”). Plaintiff has brought suit
alleging race discrimination and retaliation under Title VII of
the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et.
seq. (“Title VII”), as well as under 42 U.S.C § 1981, § 1983,

and the New Jersey Law Against Discrimination (“NJLAD”).
Plaintiff has also alleged interference and retaliation claims
under the Family Medical Leave Act (“FMLA”) and the New Jersey
Family Leave Act (“NJFLA”). She alleges that her supervisors at
Crest Haven discriminated against her and interfered with her
FMLA rights because she is African American and retaliated
against her for filing an initial complaint with the Equal
Employment Opportunity Commission (“EEOC”) and for taking
medical leave.
Presently before the Court is Defendant’s motion for
summary judgment on all claims pursuant to Fed. R. Civ. P. 56
[Docket Item No. 31], arguing that it had a legitimate, nondiscriminatory reason for each of its employment decisions.
Plaintiff opposes the motion [Docket Item No. 34], to which
Defendant has submitted a reply. [Docket Item No. 37.]

The

motion is decided without oral argument pursuant to Fed. R. Civ.
P. 78. For the reasons set forth herein, the Court, will grant
Defendant’s motion for summary judgment on all of Plaintiff’s
claims.
II.

BACKGROUND
This Court begins with an examination of the factual record

in this action, beginning with Defendant’s Statement of Material
Facts Not in Dispute (“SMF”).

2 

Plaintiff was hired by Cape May County as an Institutional
Attendant for Crest Haven Nursing and Rehabilitation Center
(“CHNRC”) on June 29, 1993. (SMF ¶ 1.) CHNRC is an entity of the
County of Cape May, New Jersey and is a 180 person long-term
care facility, employing approximately 200 full-time employees.
(SMF ¶ 2.) Throughout the time of Plaintiff’s employment,
including through the present, Defendant has had in place
official workplace policies prohibiting discrimination and
retaliation as well as reporting procedures for employees who
believed they were being subjected to discrimination or who
witnessed it. (SMF ¶ 109; Def. Ex. T, County Anti-discrimination
and Anti-retaliation policies.) At all points during her
employment and continuing in the present, Plaintiff has held the
Civil Service Title of Senior Clerk Typist. (SMF ¶ 3.) Plaintiff
is still currently employed with CHRNC as Scheduling
Coordinator, a position she has held since April 2014. (SMF ¶ 56.) Despite maintaining the same Civil Service title, pay and
benefits, Plaintiff’s job responsibilities within CHNRC have
shifted over the years. (SMF ¶ 7-10; 22; 24; 28.) In connection
with Plaintiff’s instant claims, the Court will examine
Plaintiff’s (1) transition from Admissions Director to
Admissions Clerk; (2) reassignment from Admissions Clerk to Ward

3 

Clerk; and (3) denial from Scheduling Coordinator and Financial
Director positions.
1. Admissions Director to Admissions Clerk – May 2012.
In May 2012, Plaintiff was removed from her supervisory
role as Admissions Director and placed in the role of Admissions
clerk. (D’Ambrosio Dep. 83:1-4.) On or around April 27, 2012, a
heated telephone conversation between Plaintiff and Lisa
McNulla, CHNRC Assistant Administrator and one of Plaintiff’s
supervisors, led to the subsequent removal of Plaintiff’s
supervisory duties. (Def. Ex. E, Statement of Lisa McNulla.) In
that conversation, which was witnessed by Administrator and
other supervisor Linda Thornton who was in the car with McNulla,
Plaintiff expressed frustration with her work in the Admissions
Department and informed Ms. McNulla that she would be requesting
a “stress leave” from the Union. (SMF ¶ 18; Def. Ex. D, Linda
Thornton’s Summary of Meeting Notes dated 5/2/2012.) Ms. McNulla
perceived that Plaintiff “was very short and extremely upset”
and had been insubordinate for hanging up on her before the end
of the call. (See Def. Ex. E, Statement of Lisa McNulla dated
4/27/12; Def. Ex. D.) As a result of the foregoing incident, a
meeting was held on May 2, 2012, between Plaintiff, Ms. McNulla,
Ms. Thornton, and Union Vice President Woody Lewis, where
Plaintiff and her supervisors discussed their respective

4 

concerns with Plaintiff’s performance as Admissions Director.
(Def. Ex. D, Linda Thornton’s Summary of Meeting Notes dated
5/2/2012.) Ms. Thornton noted that she and Ms. McNulla felt that
in regards to the April 27 phone call, Plaintiff “fell apart”
and they had concerns about Plaintiff expressing to them that
she felt her supervisory role was “overwhelming” since “Lisa
[McNulla] has trained and guided her for over 5 years.” (Id.) On
May 7, 2012 Ms. Thornton sent a memo to Plaintiff informing her
that as of May 9, 2012 Plaintiff’s “job duties in Admissions
will no longer include supervising the Admissions Staff.” (Def.
Ex. C; SMF 18-19.) Plaintiff was instructed that she would
continue to perform the required clerical duties for the
Admissions Department. (SMF ¶ 20.) Plaintiff retained her Civil
Service Title of Senior Clerk Typist, and there was no change in
her compensation or benefits. (SMF ¶ 22; D’Ambrosio Dep. 88:722; 115:12-23; 181:1-22; 187:24-188:22.) Plaintiff asked the
union to pursue a grievance regarding Plaintiff’s perceived
“demotion,” but the Union did not pursue the matter, informing
her that the change in her job responsibilities without loss in
pay was not considered a demotion. (SMF ¶ 19; D’Ambrosio Dep.
48:6-15; 138:8-22; 51:4-8.)

5 

2. External Case Manager to Ward Clerk – December 2012
Plaintiff claims while she was working as Admissions Clerk
she performed a dual role and also acted as an External Case
Manager (“ECM”). (SMF ¶ 9, 24.) The role of the ECM at the time
Plaintiff held the position was mainly off-site marketing to
local physicians and hospitals in order to increase the number
of patients at CHNRC. (D’Ambrosio Dep. 84:16-85:23.) On or
around September 19, 2012, Plaintiff was informed by Ms.
Thornton and Ms. McNulla that they were posting the ECM position
because they wanted a person with more clinical experience to
resume the job duties of ECM. (SMF ¶ 26; D’Ambrosio Dep. 148:325.) Ms. Thornton and Iris Drackett, the Director of Nurses at
that time, made the decision to modify the job qualifications to
require a Licensed Practical Nurse (“LPN”) to fill the position
because they felt the person admitting residents to a nursing
home, who often had to deal with medical questions and
medication issues, should have medical knowledge and training.
(SMF ¶ 25; Drackett Dep. 31:4-32:10. See also Def. Ex. H, Linda
Thornton email dated 11/27/13; Def. Ex. I, Revised Job
Description for ECM position.) On or about September 26, 2012,
Plaintiff was approved to go out on medical leave for three
months. (D’Ambrosio Dep. 149:4-7.)

6 

According to Plaintiff, on December 18, 2012, right before
she returned from medical leave, Plaintiff filled out an initial
intake questionnaire with the EEOC alleging race discrimination.
(D’Ambrosio Dep. 132-135, at Ex. CMC-3.) Two days later,
Plaintiff returned to CHRNC from medical leave. (Id. at Ex. P7.) At this time, Ms. McNulla and Ms. Thornton informed
Plaintiff she was being assigned as Ward Clerk because there was
a vacancy in that position due to another employee, Janella
Gutner, going out on medical leave. (SMF ¶ 29; D’Ambrosio Dep.
117.) During this time, CHNRC was experiencing a hiring freeze
as a result of County budgeting mandates, so CHNRC had to make
do with only the employees they had. (SMF ¶ 4; D’Ambrosio Dep.
165:3-14.) As a result there were a number of staff changes and
employees were often reassigned or asked to fill multiple roles.
(SMF ¶ 21; Drackett Dep. 24: 13-20.) CHNRC was further subjected
to Department of Health requirements concerning staffing at
nursing home facilities and was therefore required to have a
certain number of employees in certain positions. (SMF ¶ 38.)
The Ward Clerk position was one of these mandatory staffing
positions and needed to be filled. (SMF ¶ 39; D’Ambrosio Dep.
128:3-11.) Nicole Hebron had replaced Plaintiff in the
Admissions Department during Plaintiff’s medical leave, and

7 

because she was kept in that position upon Plaintiff’s return,
there were no vacant positions in the Admissions Department.
When informed that she was being assigned to Ward Clerk,
Plaintiff never voiced any objection to her supervisors, and her
salary, benefits, and Civil Service Title as “Senior Clerk
Typist” remained the same. (SMF ¶ 32-34; D’Ambrosio Dep. 88:2-9,
14-21; 91:16-22; 115:8-11.) As Ward Clerk, she also had the same
shifts and days off and worked in the same building as she did
while working in Admissions. (SMF ¶ 35-36; D’Ambrosio Dep.
91:23-92:3; 92:22-93:11; 115:12-116:2.) Around this same time,
Plaintiff filed a grievance with the CHNRC union. (D’Ambrosio
Dep. 42:18-43:23.) The union did not pursue the grievance in
which Plaintiff alleged she had been demoted, because the union
representatives told her that the changes in her duties from
Admissions Clerk to Ward Clerk did not constitute a demotion
since she did not lose any salary or benefits. (D’Ambrosio Dep.
138:8-22.) The union did not investigate her grievance or pursue
a demand for arbitration on her behalf. (SMF ¶ 121; D’Ambrosio
Dep. 48:16-19; 51:4-8.)
3. Denial of Scheduling and Finance Positions – January 2013
During the months Plaintiff was out on medical leave,
Samantha Shelton, an employee who had been working in the Food
Services department, began temporarily filling in as Scheduling

8 

Coordinator while the normal coordinator, Kim Vo, was out on
leave. (SMF ¶ 62; Hebron Dep. 42:1-5; Pl. Ex. D, at Ex. P-7.)
Ms. Vo eventually resigned and the scheduling position was
officially posted on January 7, 2013. (SMF ¶ 44; Def. Ex. M,
Background Information Regarding the Scheduling Position
prepared by Ms. Drackett.) This same day Defendant received the
first Notice of Charge of Discrimination (Notice of Charge No.
530-2013-00842 (“Charge 842”)) from the EEOC, which indicated
that the alleged discrimination was based on “race,” that the
issues involved were “demotion” and “terms/conditions” of
employment and that the timeframe at issue was “5/9/12 to
9/18/12.” (SMF ¶52; Def. Ex. N, EEOC Notice of Charge No. 842.)
The Notice of Charge indicated that a perfected charge would be
sent to Defendant once it was received from the charging party.1
(Id.)
One week later, on January 14, 2013, Plaintiff submitted a
letter requesting an interview for the scheduling position, and
on January 16, Ms. Shelton requested the same. (SMF ¶ 45;
Drackett Dep. 15:21-16:9; Pl. Ex. D, at Ex. P-7.) On January 18,

1
 As of October 21, 2013 Plaintiff still had not provided the EEOC
with a signed perfected charge in relation to Charge No. 842.
(SMF ¶ 54; Def. Ex. O, Correspondence from EEOC Investigator to
County Counsel dated 10/21/12.) Plaintiff’s perfected Charge of
Discrimination was filed a year later, on October 21, 2013, and
was received by Defendant on November 6, 2014. (SMF ¶ 55-56;
Def. Ex. P, Plaintiff’s Charge of Discrimination, CMC 439-440.)  

9 

Ms. Shelton and Plaintiff were separately interviewed for the
Scheduling Position by Ms. Thornton and Ms. Drackett (SMF ¶ 46;
D’Ambrosio Dep. 58:14-17; Pl. Ex. D, at Ex. P-7.) Ms. Drackett,
in consultation with Ms. Thornton and Head of Human Resources
Barabara Bakley-Marino, decided to hire Ms. Shelton for the
position. (SMF ¶ 47, 49.) In her written notes on the reasons
why she did not select Plaintiff for the position, Ms. Drackett
wrote:
(1) [Plaintiff] asked only a few questions. The scheduler’s
position is multifaceted and very demanding. I personally
felt that she should have been more questioning because
she has been employed at Crest Haven for (twenty) 20 years
and she should have been aware of how many schedulers have
resigned or changed position due to stress.
(2) I am very much aware of how easily [Plaintiff] becomes
stressed. I worked along with her when she was in the
Admission Dept. She had a history and pattern of calling
me often . . . oftentimes they were routine admissions and
should not have needed my input. My assessment of her at
the time was that she was unsure of herself.
(3) Although [Plaintiff] held an undergraduate degree and
was pending her Master’s Degree the [scheduling] position
did not lend itself to the advanced degree. The job
required the person to have basic computer skill, to work
well with others, to be organized and to be able to multitask and work in a fast paced atmosphere.
(SMF ¶50, Def. Ex. M, Drackett Memo on hiring decisions dated
April 29, 2014.)

2

2
 Plaintiff argues that this memo (Def. Ex. L.) raises a genuine
dispute over whether Defendant had a legitimate rationale for
selecting Ms. Shelton over Plaintiff for the scheduling position
because this memo is dated April 2014, over a year after the
decision was made. While this fact could infer a post-hoc
rationalization by Ms. Drackett, as Plaintiff asserts, this fact

10 

In January, 2013 an opening for Financial Director3 also
opened up, and Plaintiff submitted a letter of interest for the
position to Ms. Thornton on January 16, 2013. (SMF ¶ 89; Def. Ex.
R, Plaintiff’s Correspondence to Ms. Thornton dated 01/16/13.) Ms.
Thornton emailed Plaintiff in response, informing her that she
intended to hire an accountant to take over the financial duties
of the former Director of Finance. (SMF ¶ 90; Def. Ex. S, Thornton
E-mail to Plaintiff dated 01/16/13.) Plaintiff has never worked in
finance

before,

nor

does

she

have

any

financial

accounting

experience. (D’Ambrosio Dep. 53:21-22; 54:1-3.) Plaintiff does
have a Master’s in Management, but she did not yet hold this degree
when she applied for the position. (Id. at 52:5.) Further, she has
never been responsible for maintaining a balance sheet or financial
books or records. (Id. at 55:7-13, 140:6-141:10.) The position was
ultimately filled by Bridgette O’Brien, a County employee for over
24 years. (SMF ¶ 98, D’Ambrosio Dep. 120:23-121:2.)

is not material. As discussed below, given the myriad of
undisputed facts supporting Defendant’s legitimate, nondiscriminatory rationale for hiring Ms. Shelton, the fact that
the Ms. Drackett’s memo may have been made a year after-the-fact
does not alone raise a genuine issue of material dispute as to
whether Defendant’s proffered reason for hiring Ms. Shelton was
racially motivated pretext.
3
 Both parties interchangeably refer to this position as
“financial director,” “financial manager” and “financial
position.” The Court will refer to this position as the
“Financial Director” position.  

11 

Plaintiff filed her second Charge of Discrimination (Charge
No. 530-2013-3150 (“Charge 3150”)) on September 9, 2013 alleging
that the failure to hire her for the Scheduling Coordinator or
Financial Director position was an act of retaliation in
response to Plaintiff’s filing the first charge, Charge 842,
with the EEOC in December 2012. (SMF ¶ 57, Def. Ex. Q, Notice of
charge and Charge of Discrimination No. 3150.) Defendant
received this second charge, Charge 3150, on November 6, 2013.
Ms. Drackett stated that she learned about the EEOC charges from
Ms. Thornton sometime between April and October 2015. (Drackett
Dep. 27:2-19.) Plaintiff filed her perfected charge of
discrimination in connection to Charge 842 on October 21, 2013,
which Defendant received two weeks later. (SMF ¶ 55-56; Def. Ex.
P, Notice of Charge and Plaintiff’s Charge of Discrimination.)
The EEOC issued and mailed to Plaintiff a Notice of Right
to Sue for both Charge 842 and Charge 3150 on October 17, 2014.
Plaintiff filed this complaint on October 22, 2014 [Docket Item
No. 1.] and Defendant moved for summary judgment on December 16,
2015, to which the Court now turns. [Docket Item No. 31.]
III. STANDARD OF REVIEW
Pursuant to Fed. R. Civ. P. 56(c), a motion for summary
judgment will be granted if the pleadings, depositions, answers
to interrogatories, and admissions on file, together with the

12 

affidavits, if any, show that there is no genuine dispute as to
any material fact and that the moving party is entitled to
judgment as a matter of law. See Anderson v. Liberty Lobby,
Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477
U.S. 317, 322 (1986). “[S]ummary judgment may be granted only if
there exists no genuine issue of material fact that would permit
a reasonable jury to find for the nonmoving party.” Miller v.
Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988). All facts and
inferences must be construed in the light most favorable to the
non-moving party. Peters v. Del. River Port Auth., 16 F.3d 1346,
1349 (3d Cir. 1994).
In 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 factfinder, and thus at the summary judgment
stage credibility issues should be resolved against the moving
party. Big Apple BMW v, Inc. v. BMW of N. Am., Inc., 974 F.2d
1358, 1363 (3d Cir. 1992); Meyer v. Riegel Prods. Corp., 720
F.2d 303, 307 n.2 (3d Cir. 1983). However, “[t]he mere existence
of a scintilla of evidence,” without more, will not give rise to
a genuine dispute for trial. Anderson, 477 U.S. at 252. In the
face of such evidence, summary judgment is still appropriate

13 

“[w]here 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).

IV.

DISCUSSION
A. Exhaustion of Administrative Remedies under Title VII
As exhaustion is a prerequisite to bringing a Title VII

suit, the Court will first address this threshold issue. A
plaintiff bringing an employment discrimination claim under
Title VII must comply with the procedural requirements set forth
in 42 U.S.C. § 2000e–5. Before filing a lawsuit, a plaintiff
must exhaust her administrative remedies by first filing a
timely discrimination charge with the EEOC. Id. at §§ 2000e–
5(b), (e)(1), (f)(1). A plaintiff is required to raise all Title
VII claims with the EEOC prior to bringing an action in federal
court. Webb v. City of Philadelphia, 562 F.3d 256, 262 (3d Cir.
2009). This requirement is necessary “to put the EEOC on notice
of the claims,” affording “it the opportunity to settle
disputes” so as to avoid “unnecessary action in court.” Id. The
Third Circuit has held that a plaintiff “is not permitted to
bypass [this] administrative process.” Id. (quotations omitted).
The ensuing Title VII suit is then limited to claims that are
within the scope of the initial administrative charge. Antol v.

14 

Perry, 82 F.3d 1291, 1296 (3d Cir.1996). The Court finds that
all of Plaintiff’s claims were timely filed and properly
exhausted and thus will be determined on the merits.
1. Charge 842: Racially Motivated Demotion
With regards to Charge No. 530-2013-842 (“Charge 842”),
Defendant asserts that Plaintiff only exhausted administrative
remedies as to her claim of disparate treatment in connection
with her return to work after medical leave because she did not
formally file her charge of discrimination until October 21,
2013. (Def. Br. 8.) Therefore, Defendant avers, Plaintiff’s
claims of demotion from Admission Supervisor in May 2012 is time
barred because of the 300 day statute of limitations laid out in
42 U.S.C. 2000e-5(1). (Id. 8-9.) Plaintiff argues that all her
claims related to Charge 842 are within the EEOC’s 300 day
limitation because she initially filed an intake questionnaire
on December 18, 2012. (Pl. Ex. A, at Ex-CMC-3 at p. 41, EEOC
Intake Questionnaire; D’Ambrosio Dep. 132:3-25.) The central
question for this Court is whether Plaintiff’s timely-filed
intake questionnaire constitutes a charge of discrimination,
thus making all of Plaintiff’s claims relating to Charge 842
timely. The Court finds that it does.
Plaintiff’s filing of the initial Intake Questionnaire
counts as a charge of discrimination because it generated a

15 

response from the EEOC and a subsequent notification of the
charges to Defendant. While a timely-filed intake questionnaire
is not a per se charge of discrimination, when the questionnaire
fulfills the core purpose of an EEOC charge by informing
employers that they are prospective defendants in a
discrimination case, the questionnaire will be deemed the formal
charge. See 42 U.S.C. § 2000e-5(b) (requiring the Commission to
serve notice of the charge on the employer against whom it is
made); see also Barzanty v. Verizon PA, Inc., 361 F. App’x 411,
415 (3d Cir. 2010) (“ . . . the central purpose of a charge is
to put the employer on notice of the allegations.”); Occidental
Life Ins. Co. of Cal v. EEOC, 432 U.S. 355, 359-60 (1977)
(stating the same); Hightower v. Roman, Inc., 190 F. Supp. 2d
740, 747 (D.N.J. 2000) (“the purpose of requiring an aggrieved
party to first resort to the EEOC is twofold: to give notice to
the charged party and provide an avenue for voluntary compliance
without resort to litigation.”) (emphasis added). The Court
finds that in the instant case, Plaintiff’s filing of the intake
questionnaire with the EEOC was enough to put Defendant on
notice and fulfill the central purpose of having an EEOC charge.
Indeed, Defendant received from the EEOC a Notice of Charge of
Discrimination on January 7, 2013, which provided a sufficiently
detailed statement of Plaintiff’s allegations, namely, that the

16 

allegations involved race discrimination in connection with
demotion and conditions of employment occurring between May and
September 2012. (See Def. Ex. N.)
Additionally, in filing the Intake Questionnaire, Plaintiff
incited action on the part of the EEOC, suggesting the EEOC
itself believed the questionnaire to be a charge. While
Defendant is correct that the EEOC’s belief as to the timeliness
of a charge is not determinative, Kocian v. Getty Refining &
Marketing Co., 707 F.3d 748, 754 n. 9 (3d Cir. 1983), it is
still informative since a court generally gives deference to
“matters of detail related to [an agency’s] administration” of a
statute. Barnhart v. Walton, 535 U.S. 212, 225 (2002); see also
Federal Exp. Corp. v. Holowecki, 552 U.S. 389, 397 (2008)
(asserting that “[the EEOC] is entitled to further deference
when it adopts a reasonable interpretation of regulations it has
put in force.”) Within two weeks of receiving Plaintiff’s
complaint, the EEOC sent the Notice of Charge of Discrimination
to Defendant, indicating that the agency construed the
Plaintiff’s initial Intake as a request for the EEOC to act.
(Def. Ex. N; D’Ambrosio Dep., at 132:3-25.) Additionally, this
notice also included the EEOC charge number and statement
acknowledging a “perfected charge will be mailed to you.” (Id.)
The EEOC’s text of the intake questionnaire itself notes “this

17 

questionnaire may serve as a charge if it meets the elements of
a charge.” (Pl. Ex. A, at Ex-CMC-3 at p. 41, EEOC Intake
Questionnaire.) The EEOC’s immediate notice to Defendant on a
form that included a charge number and acknowledgment of a soon
to follow “perfected charge” indicates that the agency
recognized Plaintiff’s initial Intake Questionnaire as a charge.
See Walker-Robinson v. J.P. Morgan Chase Bank, N.A., No. 114913, 2012 WL 3079179, at *6 (D.N.J. July 27, 2012) (finding
that an intake questionnaire constituted a charge under Title
VII when the EEOC treated it as a charge by assigning a charge
number and notifying the employer that a charge had been filed
against it).

This Court is persuaded by the prompt action taken

by the EEOC in response to receiving Plaintiff’s intake
questionnaire that the agency itself recognized the intake
questionnaire as an official charge.
It is important to recognize that Title VII establishes a
remedial scheme in which laypersons, rather than lawyers, are
expected to initiate the process. Therefore, “the system must be
accessible to individuals who have no detailed knowledge of the
relevant statutory mechanisms and agency processes.” Federal
Express v. Holowecki, 552 U.S. 289, 403 (2008); see also Love v.
Pullman Co., 404 U.S. 522, 527 (1972) (“[T]echnicalities are
particularly inappropriate in a statutory scheme in which

18 

laymen, unassisted by trained lawyers, initiate the process.”)
There must be some level of malleability in determining whether
a plaintiff properly filed a discrimination charge. Thus, in
recognition of this principle and in giving due deference to the
EEOC as the charging agency, this Court construes the initial
Intake Questionnaire as a charge and finds all of Plaintiff’s
claims in Charge 842, are within the EEOC’s 300 days limitation
and will be heard by this Court.
2. Charge 3150: Race Discrimination
In general, a plaintiff is required to first raise all
Title VII claims with the EEOC prior to bringing an action in
federal court. Webb v. City of Philadelphia, 562 F.3d 256, 262
(3d Cir. 2009). Defendant argues that because Plaintiff did not
raise a claim of discrimination in connection in her charge of
retaliation in Charge 3150, she cannot do so in the instant
Title VII claim. (Def. MSJ at 4.) Plaintiff responds that her
claim that she was racially discriminated against is based on
the same acts as the retaliation claim, namely, her denial from
the Scheduling Coordinator and Financial Director positions, and
thus the two claims constitute the same charge and were properly
exhausted. (Pl. Opp. at 9.) The Court agrees with Plaintiff.
Plaintiff’s Title VII allegations of race discrimination in
connection with Charge 3150 will not be dismissed because they

19 

are encompassed by the same discrete acts and factual
circumstances that make up the original EEOC charge of
retaliation. The relevant test in determining whether a
plaintiff has exhausted her administrative remedies, is “whether
the acts alleged in the subsequent Title VII suit are fairly
within the scope of the prior EEOC complaint, or the
investigation arising therefrom.” Waiters v. Parsons, 729 F.2d
233, 237 (3d Cir. 1984) (per curiam); Hicks v. ABT Associates,
572 F.3d 960, 965-66 (3d Cir. 1978); Ostapowicz v. Johnson, 541
F.2d 394, 399 (3d Cir. 1976); see also Antol v. Perry, 82 F.3d
1291, 1295 (3d Cir. 1996) (“Requiring a new EEOC filing for each
and every discriminatory act would not serve the purposes of the
statutory scheme where the later discriminatory acts fell
squarely within the scope of the earlier EEOC complaint or
investigation.”) A plaintiff’s suit will not be barred for
failure to exhaust administrative remedies if the “core
grievances” in the Title VII suit filed and the earlier EEOC
complaint are the same. See Waiters, 729 F.2d at 237 (holding
that the plaintiff’s suit was not barred for failure to exhaust
administrative remedies because his Title VII suit alleging
retaliatory firing shared the same core grievance as the earlier
EEOC complaint charging retaliatory employment restrictions);
Antol, 82 F.3d at 1291 (finding that an initial EEOC charge of

20 

disability discrimination cannot fairly encompass a subsequent
Title VII claim of gender discrimination).
While Plaintiff’s initial claims under Charge 3150 only
alleged unlawful retaliation, a reasonable investigation by the
EEOC would have also encompassed examination of potential racial
discrimination. Moreover, the Title VII charge of race
discrimination is based on the same “core grievances,” namely,
the denial of Plaintiff for Scheduling Clerk and Finance
Director in January 2013. The discrete acts, and therefore the
players involved, that make up the initial retaliation charge
are identical to those supporting the race discrimination
allegations in Plaintiff’s complaint. It is clear that the
latter allegations would inevitably have been revealed through
the EEOC’s investigation of the retaliation charges. Finally, in
determining the scope of the original charge it is important to
keep in mind, and it bears repeating, that “[EEOC charges] are
most often drafted by one who is not well versed in the art of
legal description [and] accordingly, the scope of the original
charge should be liberally construed.” Hicks, 572 F. 2d at 965.
The Court finds that Plaintiff’s allegation of race
discrimination in connection with Charge 3150 in her Title VII
claim are within the scope of a reasonable investigation of the

21 

EEOC charge for retaliation and therefore the claims will be
heard by this Court.
B. Count I: Title VII
The Court now turns to the substantive analysis of
Plaintiff’s Title VII claims, where Plaintiff alleges the
following: (1) the removal of her supervisory duties was an act
of discrimination based on her race; (2) her reassignment to
Ward Clerk after returning from FMLA leave was an act of
discrimination and disparate treatment because of her race; (3)
her denial from the Scheduling and Finance positions was an
unlawful act of racial discrimination; and (4) her denial from
the Scheduling and Finance position was an unlawful act of
retaliation for her filing of Charge 842. Defendant moves for
summary judgment on all of these claims. Each allegation will be
examined separately below.
1. Claims of Race Discrimination and Disparate
Treatment
Defendant argues that Plaintiff cannot pass the prima facie
case for racial discrimination under Title VII because she has
not suffered any adverse employment action. Defendant further
asserts that regardless of whether Plaintiff can pass this
threshold barrier, Defendant has proffered sufficient evidence
showing nondiscriminatory and non-retaliatory motivations
underlie each action taken against Plaintiff.

22 

Title VII of the Civil Rights Act of 1965 makes it unlawful
for an employer to
(1)
fail or refuse to hire or to discharge any
individual, or otherwise discrimination against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of
such individual’s race, color, religion, sex, or
national origin; or
(2)
to limit, segregate, or classify his employees or
applicants for employment in any way which would
deprive or tend to deprive any individual of
employment opportunities or otherwise adversely affect
his status as an employee, because of such
individual’s race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2(a).
The Court’s inquiry for the instant case is governed by the
flexible burden-shifting framework established in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1974). See
Scheidemantle v. Slippery Rock State System of Higher Educ., 470
F.3d 535, 539 (3d Cir. 2006) (applying McDonnell Douglas
standard to Title VII discrimination claim concerning indirect
evidence). To prevail on a claim of racial discrimination under
Title VII, Plaintiff must first establish a prima facie case of
racial discrimination by demonstrating that (1) she was a member
of a protected class; (2) she was qualified for the position;
(3) she suffered an adverse employment action; and (4) the
adverse action occurred under circumstances that gave rise to an
inference of discrimination. Jones v. Sch. Dist. Of
Philadelphia, 198 F.3d 403, 412 (3d Cir. 1999); Holmes v. Newark

23 

Public Schools, No. 13-765, 2016 WL 3014404, at *7 (D.N.J May
25, 2016).
Regarding prong three of the test, the Supreme Court has
defined an adverse employment action as “a significant change in
employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a
decision causing a significant change in benefits.” Burlington
Indus. V. Ellerth, 524 U.S. 742, 761 (1998); see Storey v. Burns
Int’l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004) (describing
an adverse employment action “as an action by an employer that
is serious and tangible enough to alter an employee’s
compensation, terms, conditions, or privileges of employment.”)
(internal quotation marks omitted). In other words, “[i]f an
employer’s act substantially decreases an employer’s earning
potential and causes significant disruption in his or her
working conditions, a tangible adverse employment action may be
found. Holmes, 2016 WL 3014404, at *8 (quoting Durham Life Ins.
Co. v. Eans, 166 F.3d 139, 152-53 (3d Cir. 1999).
Once a plaintiff establishes a prima facie case, “the
burden then must shift to the employer to articulate some
legitimate, nondiscriminatory reason” for its employment
decisions. McDonnell Douglas, 411 U.S. at 802. If the employer
offers some evidence of a legitimate, nondiscriminatory reason

24 

then the burden shifts back to the plaintiff who “must point to
some evidence, direct or circumstantial, from which a factfinder
could either reasonably (1) disbelieve the employer’s
articulated legitimate reasons; or (2) believe than an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s actions. Nappi v. Holland
Christian Home Ass’n, No. 11-2832, 2015 WL 5023007, at *7
(D.N.J. Aug. 21, 2015) (quoting Fuentes v. Perskie, 32 F.3d 759,
764 (3d Cir. 1994)).
Defendant argues that not one of the alleged acts of
discrimination can move forward under Title VII because
Plaintiff cannot establish that any of Plaintiff’s change in job
responsibilities qualified as tangible enough to constitute an
adverse employment action. Defendant further asserts that
irrespective of the question over Plaintiff’s ability to satisfy
a prima facie case of discrimination, summary judgment is
appropriate because Plaintiff has not proffered any evidence to
show that Defendant’s legitimate, non-discriminatory rationale
for its employment actions was a pretext for discriminatory
animus. The Court will respectively examine each allegation of
racial discrimination and disparate treatment herein.

25 

a. Demotion from Admissions Director
With regards to the removal of her supervisory duties,
Plaintiff has failed to satisfy a prima facie case for
discrimination. Plaintiff has indeed presented sufficient
evidence to create a material dispute as to whether she suffered
an adverse employment action. It is undisputed that Plaintiff at
all times retained her Civil Service Title of Senior Clerk
Typist and experienced no change in compensation as a result of
the removal of the supervision duties.

(SMF ¶ 22.)

Yet the

removal of supervisory duties is more than just a different
position, but an obviously inferior one, which constitutes an
adverse employment action by Defendant. “While direct economic
harm is probative, so too is conduct that substantially
decreases one’s earning potential or disrupts [Plaintiff’s]
working conditions.” Swain v. City of Vineland, 457 F. App’x
107, 110 (3d Cir. 2012) (citing Durham Life Ins. Co. v. Evans,
166 F.3d 139, 153 (3d Cir. 1999)); see also de la Cruz v. New
York City of Human Res. Admin. Dep’t of Soc. Serv., 82 F.3d 16,
21 (2d Cir. 1996) (holding that proof of diminution in prestige
and less opportunity for professional growth, although “quite
thin,” was sufficient to show adverse employment action for
purposes of summary judgment). Plaintiff’s “working conditions”
were tangibly and adversely affected when Defendant removed her

26 

supervisory roles. This is an objectively clear demotion, rather
than a simple shift in duties.
Defendant cites to a collection of cases delineating the
difference between an adverse and merely undesirable employment
action, accurately concluding that a “bruised ego,” a demotion
without change in pay, benefits, or prestige, or a reassignment
to a more inconvenient job does not constitute adverse
employment actions. (Def. Br. 12-13.)

While Defendant’s

statement of the law is correct, its application to Plaintiff’s
demotion misses a crucial point; that removing supervisory
duties is more than just a lateral assignment of duties, but a
direct alteration of Plaintiff’s prestige and “privileges of
employment.” Langley v. Merck & Co., Inc., 186 F. App’x. 258,
260 (3d Cir. 2006) (quoting Cardenas v. Massey, 269 F.3d 251,
263 (3d Cir. 2001)) (internal quotation marks omitted).
Defendant’s action constitutes a demotion, even if her title and
pay remained the same. Prestige and authority are important
components of a job, and removing these responsibilities puts
Plaintiff in an objectively worse employment position. The Court
finds that Plaintiff has therefore suffered an adverse
employment action with regards to the removal of supervisory
duties from her role in the Admissions Department, and therefore

27 

in contention with Defendant’s argument, satisfies prong three
of the prima facie test.
Defendant also asserts that Plaintiff cannot establish the
second prong of a prima facie case for racial discrimination
because Plaintiff cannot show she was qualified for the job. The
Court agrees. Without dispute, the record supports Defendant’s
averment that Plaintiff’s supervisory responsibilities were
removed because Plaintiff was insubordinate to her supervisors
during the telephone call, and more significantly, because
Plaintiff had expressed she was overwhelmed enough in the
position to request a stress leave from the union. (See Def. Ex.
E, Ms. McNulla’s write-up of the April 27, 2012 telephone
conversation corroborating that Nicole expressed that she needed
“to take a stress leave” from the supervisory position and that
she hung up on McNulla and Thornton); see also Def. Ex. F
(summary of meeting with Plaintiff and supervisors noting that
McNulla informed Plaintiff at the meeting that her supervisory
role was removed because “[Plaintiff] was overwhelmed, could no
longer do the job, and [had gone] to the Union [to take] a
stress leave, therefore to help relieve that stress she no
longer would need to be the Supervisor.”)). Plaintiff does not
address Defendant’s contention in her Opposition Brief, and
further fails to proffer any evidence that raises a genuine

28 

dispute as to this fact. It is certainly a reasonable response
on an employer’s part to remove supervisory duties when an
employee takes such dramatic action as requesting stress leave.
As such, the Court finds that Plaintiff cannot establish the
second prong of the prima facie case for race discrimination and
therefore her claim cannot proceed.
The Court takes a moment to emphasize that even if
Plaintiff had been deemed qualified and able to satisfy the
prima facie case, the same facts support a finding that
Defendant had a legitimate, non-discriminatory rationale for
removing her supervisory duties. Ms. Thornton’s perception that
Plaintiff was overwhelmed and perceived to be insubordinate
(Def. Ex. E.) is a sufficient justification for the demotion,
and adequately rebuts any theoretical discriminatory inference
created by the demotion. Plaintiff has not presented any
admissible evidence to show such a rationale is a pretext for
true racial animus. Regardless, Plaintiff has not established
the prima facie case for race discrimination. As such, her
allegation that the removal of her supervisory duties was a
result of racial discrimination will fail and summary judgment
will be granted.

29 

b. Reassignment to Ward Clerk
As to the second allegation of racial discrimination and
disparate treatment in connection with Plaintiff’s alleged
“demotion” from External Case Manager (“ECM”) to Ward Clerk,
Plaintiff has not established that she suffered the requisite
adverse employment action. While Plaintiff herself characterizes
the reassignment from ECM to Ward Clerk as a “demotion,” there
is nothing in the record that corroborates this fact. (Complaint
¶ 29; Pl. Opp. 15) Plaintiff’s only evidence is her own
testimony that she “should have had [her] choice in what job
[she] wanted,” a view based exclusively on Plaintiff’s own
belief that the Ward Clerk position was an inferior role. (Pl.
Ex. A, D’Ambrosio Dep. 128:21-25.)
While the Court must examine the facts in the light most
favorable to Plaintiff, it does not have to treat as fact
Plaintiff’s self-serving, uncorroborated, vague and inconclusive
testimony. See Solomon v. Soc’y of Auto Eng’rs, 41 F. App’x 585,
586 (3d Cir. 2002); Bodison v. Univ. of Med. And Dentistry of
N.J., No. 07-2616, 2009 WL 1298502, at *2-3 (D.N.J. May 8 2009)
(“The Court does not believe that Plaintiff’s uncorroborated
statement, particularly in as much as his statements are
inconclusive, crosses the sufficiency threshold,” to survive
summary judgment.); Jones v. Sch. Dist. of Phila., 198 F.3d 403,

30 

414 (3d Cir. 1999)(holding that there was not enough evidence to
support plaintiff’s claim of pretext when plaintiff “ma[de]
numerous allegations in his affidavit which he predicate[d] on
nothing more than his beliefs without having actual knowledge of
them.”); Swain, 457 F. App’x at 110 (granting summary judgment
denying Plaintiff’s discrimination claim because “[Plaintiff]
relie[d] only upon his subjective preference for the K-9
position, which is insufficient to establish an adverse
employment action,” [And] “Even if the responsibilities of a K-9
sergeant are “significantly different” than those of a street
crime sergeant, there is no indication that these different
responsibilities are objectively better.”)(emphasis added).
Contrary to Plaintiff’s opinion, the record in no way
reflects that Ward Clerk is considered an inferior position and
that the reassignment was therefore an adverse employment
action. Given that there is no evidence of tangible impact on
Plaintiff’s employment, that is, her title, pay, benefits, and
terms and conditions of her employment remained the same,
Plaintiff’s reassignment to Ward Clerk is nothing more than a
simple intra-company, lateral transfer. “[L]ateral transfer[s]
in and of itself do[ ] not amount to a significant change in
employment status.” Swain, 457 F. App’x at 110. While her job
responsibilities may indeed have changed, it was not such a

31 

significant shift to put her in an inferior position. Change in
duties alone does not rise to the level of a materially adverse
employment action. Holmes, 2016 WL 3014404, at *8 (citing Canale
v. State, No. A00104-12T2, 2013 WL 3762470 at *9 (N.J. Super.
Ct. App. Div. 2013) (“A transfer involving no reduction in pay
and no more than a minor change in working conditions will not
do . . . ”)). In the instant case, Plaintiff has provided
nothing to support her contention that being reassigned to the
Ward Clerk position is in fact a demotion to an inferior job and
has therefore failed to present sufficient evidence to show she
suffered an adverse employment action.
Additionally, the record does not reveal any evidence from
which a reasonable jury could find that Defendant’s decision to
reassign Plaintiff to Ward Clerk was actually tied to her race.
When asked what “facts or evidence do you have that would
suggest your race played a role?” Plaintiff can only respond
with further self-serving conclusory statements backed up by no
circumstantial or direct evidence in the record. (See e.g., Pl.
Ex. A, D’Ambrosio Dep. 129:1-15 (“I should have had the option;”
“I had more qualifications.”)
Again, even if Plaintiff could establish a prima facie
case, summary judgment is still appropriate because she is
unable to present evidence to show that a reasonable jury could

32 

believe Defendant’s legitimate, non-discriminatory rationale for
reassigning Plaintiff to Ward Clerk is pretext for racially
motivated discrimination. The record reflects that Plaintiff was
reassigned because she no longer was qualified for the ECM job
after Defendant decided the position needed a more clinical
person in the role. Plaintiff herself admits that Defendant was
bound by Department of Health requirements that mandated a
certain number of people in certain positions. (Pl. Ex. A,
D’Ambrosio Dep. 127:6-128:2.) Given that Ward Clerk was a
mandatory staffing position that was vacant when Plaintiff
returned from leave, it is certainly reasonable for Defendant to
select Plaintiff for that position, especially given Plaintiff’s
relevant experience as a nurse’s aide. (Id. at 88:25-89:11;
128:3-11.) Moreover, as Plaintiff herself recognizes, there was
a hiring freeze at the time she returned from leave and
Defendant was therefore required to fill vacant positions with
only current employees. (Id. at 165:3-14.) Plaintiff tries to
rebut such justification by pointing to the fact that she is
black and states that “because [she was] Senior Clerk Typist,
she should have had her choice in what job [she] wanted.” Such a
hollow attempt to undermine Defendant’s legitimate business need
for its employment decision is based in no factual support and

33 

there is no reasonable inference that Defendant’s stated reasons
are implausible or otherwise pretextual.
Given that Plaintiff cannot pass the threshold requirement
for a discrimination claim, and alternatively that Defendant has
presented a legitimate business decision which Plaintiff cannot
show is unworthy of credence, summary judgment will be granted
as to the allegation that she was racially discriminated against
when she was reassigned to the Ward Clerk position.
c. Denial of Scheduling Coordinator and Financial
Director positions
Plaintiff’s claim that Defendant discriminated against her
on the basis of her race when Defendant promoted Ms. Shelton for
the Scheduling Clerk position and Ms. O’Brien for the Financial
Director position cannot withstand summary judgment because
Defendant has asserted a legitimate, nondiscriminatory
rationale, namely, that Shelton and O’Brien were rightly
perceived to be more qualified for their respective positions.
Plaintiff tries to assert she was the better qualified candidate
and therefore Defendant’s rationale must be pretext for race
discrimination. Unfortunately, Plaintiff has again provided the
Court with no factual evidence to rebut the myriad of facts in
support of Defendant’s contention that Plaintiff was not the
best candidate for either position. “To discredit the employer’s
proffered reason the plaintiff cannot simply show that the

34 

employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or
competent.” Fuentes v. Perskie, 32 F.3d at 765-76 (3d Cir. 1994)
(citing Ezold v. Wolf, Block Schorr & Solis-Cohen, 983 F.2d 509,
531 (3d Cir. 1992)).
With regards to the Scheduling Clerk position, Plaintiff
presents no evidence that she was more qualified other than the
fact that she had previously held the position. Taking the facts
in the light most favorable to Plaintiff, the Court acknowledges
that Shelton previously worked in food service, which required
only manual labor while Plaintiff had prior clerical experience
and an undergraduate degree. (Pl. SOF ¶ 144-45) But to argue
this alone makes Plaintiff better qualified belies the facts at
hand. First, Plaintiff admits that her prior clerical experience
as the Admission Director did not actually involve scheduling of
staff. (Pl. Ex. A, D’Ambrosio Dep. 79:19-23.) While Plaintiff
did have a couple of months filling in as scheduler back in 2002
(SMF ¶ 84), at the time the Scheduling Position was opened,
Shelton had been currently working as a scheduler for the past
three months while another scheduler was on leave. (Def. Ex. G,
Drackett Dep. 12:12-19; 14:22-15:4.) It was Ms. Shelton who
indeed had more scheduling experience, and more knowledge of the

35 

present demands of the job. Moreover, the job qualifications did
not demand an advanced degree, only that the individual have
“basic computer skills, work well with others, be organized and
be able to multi-task and work in a fast paced atmosphere.”
(Def. Exs. K, L, M.) Given that Plaintiff’s prior clerical
experience in the Admissions Department resulted in the removal
of her supervisory duties and her request for a “stress leave”
(Def. Ex. E), Plaintiff is hard-pressed to assert she was better
qualified for the scheudling job than Shelton. Moreover, it is
not disputed that Shelton was successfully and currently
performing in the very position, a fact Plaintiff herself
acknowledges. (Pl. Ex. A, D’Ambrosio Dep. 72:11-73:22.) An
examination of Drackett’s memo on why she chose Shelton over
Plaintiff for the job corroborates this fact, noting, “I am very
much aware of how easily Ms. D’Ambrosio became stressed. I
worked along with her when she was in Admissions Dept . . . My
assessment of her at that time was that she was unsure of
herself.” (Def. Ex. M.) Given that the job was considered one of
the most difficult and taxing positions, it is certainly
reasonable that Defendant would forego a candidate such as
Plaintiff who had already exhibited signs of being overwhelmed.
(SMF ¶ 41, D’Ambrosio Dep. 12:19-23.)

36 

As to the Financial Director position, it is likewise clear
that Plaintiff was not more qualified than Ms. O’Brien. In fact,
Plaintiff likely was not qualified for the position at all. The
only support Plaintiff musters is that O’Brien did not hold a
degree and that “[O’Brien’s] personality is horrible.”
(D’Ambriosio Dep. 123:16-25.) Plaintiff herself does not hold
any degree in finance, has never worked in the financial
accounting field, has no knowledge of what a general ledger is,
and never prepared a professional balance sheet. (Id. at 140:11141:10.) Moreover, Plaintiff concedes that she knows nothing
about O’Brien’s skills, background, qualifications, yet still
makes sweeping conclusions about how she was better qualified
for the job because she earned her Master’s degree online. (Id.
at 123:17-24; 124:9-12.) Plaintiff later contradicts herself in
her deposition, admitting that she did not yet have the Master’s
when she applied for the finance position. (Id. at 128:24142:12.) The only evidence Plaintiff posits to rebut Defendant’s
justification for hiring Ms. O’Brien, is her own insistence that
her subsequent receipt of an online Master’s degree somehow
entitles her to more money. (Id.) Regardless, such illogical
testimony as the only supporting evidence further convinces the
Court that Defendant has asserted a legitimate,
nondiscriminatory rationale for foregoing Plaintiff for the

37 

finance position. In other words, where Plaintiff adduces no
evidence regarding Ms. O’Brien’s skills, qualifications, and
performance, no reasonable factfinder could find that
Plaintiff’s qualifications for the finance position were
superior.
Even if the Court were to assume Plaintiff was more
qualified, such a fact alone does not suggest or imply that she
was treated differently because of her race. Plaintiff simply
cannot establish the requisite causal connection between her
race and the choice of Ms. O’Brien for the finance position. See
Holmes, 2016 WL 3014404, at *8 (denying Plaintiff’s claim
because “he cannot establish an adverse employment action or a
link between the protected characteristic or activity and the
adverse action.”) As shown above, Plaintiff’s claims are
grounded in unsupported, self-serving allegations. (See
D’Ambrosio Dep. 93:12-18) (Plaintiff testifies that everything
she perceived to be bad at her employment occurred because of
her race.) Even at the summary judgment stage, this is not
enough.
The Court is persuaded that Defendant has posited a
legitimate, non-discriminatory rationale. Since Plaintiff cannot
present any evidence that might persuade a reasonable jury that
Defendant’s rationale is merely pretext and that its employment

38 

decisions were actually based on race, summary judgment will be
granted as to this claim.
d. Claims of Retaliation
Plaintiff argues Defendant’s decisions to deny her both the
Scheduling Coordinator and Financial Director positions in
January 2013, were made in retaliation for filing the initial
Charge 842 in December 2012. Defendant responds that Plaintiff
cannot establish the prima facie case for retaliation because
she cannot show that but for her filing of her discrimination
charge, she would have received either position. And regardless,
Defendant had a legitimate justification for hiring Ms. Shelton
and Ms. O’Brien–simply, they were each better candidates than
Plaintiff for the positions.
Title VII prohibits an employer from discriminating
against an employee “because [the employee] has opposed any
practice made an unlawful employment practice by this subchapter
. . . ” 42 U.S.C. § 2000e–3(a). To establish that an unfavorable
job action is based upon an illegal retaliatory motive in
violation of Title VII, a plaintiff must first establish a prima
facie case of retaliation. Reeves v. Sanderson Plumbing Prods.,
Inc., 530 U.S. 133, 142 (2000). To establish her prima facie
case of retaliatory action, Plaintiff must show that (1) she was
engaged in protected activity; (2) she was subject to a

39 

materially adverse employment action subsequent to or
contemporaneously with such activity; and (3) there is a casual
link between the protected activity and the subsequent adverse
job action. Moore v. City of Phila., 461 F.3d 331, 340–41 (3d
Cir. 2006); Woodson v. Scott Paper Co., 109 F.3d 913, 920 (3d
Cir. 1997); Barber v. CSX Distrib. Servs., 68 F.3d 694, 701 (3d
Cir. 1995). "The plaintiff’s ultimate burden in a retaliation
case is to convince the factfinder that retaliatory intent had a
determinative effect on the employer’s decision.” Cortes v.
Univ. of Med. and Dentistry of N.J., 391 F. Supp. 2d 298, 312
(D.N.J. 2005).
Plaintiff has not produced any evidence from which a jury
could reasonably conclude that the third element of the prima
facie case for retaliation has been met. Under the third
element, a plaintiff need not prove that retaliation was the
sole reason for an employer’s adverse action, but she must show
that the action would not have been taken but for the
plaintiff’s protected activity. Moore, 461 F.3d at 342 (citing
LeBoon v. Lancaster Jewish Comm. Ctr. Ass’n, 503 F.3d 217, 232
n. 8 (3d Cir. 2007); see also Watson v. SEPTA, 207 F.3d 207, 215
(3d Cir. 2000)). The only evidence suggesting retaliation is the
fact that Plaintiff was not selected for the Scheduling and
Finance positions two weeks after Defendant received the EEOC’s

40 

Notice of Charge of Discrimination. (Def. Ex. N, Pl. Ex. D at
Ex. P-7.) It is unclear whether Ms. Drackett, the decision-maker
as to the Scheduling position was even aware of the EEOC charge
at the time she made her hiring decision in January 2013. (See
Pl. Ex. B, Drackett Dep. 27:2-14.) Ms. Drackett stated that she
learned about Charge 842 sometime between April and October
2015, but Plaintiff points out that Ms. Drackett is not entirely
sure and seems to confuse her answer. (Pl. Ex. B, Drackett Dep.
26; Pl. SOF ¶ 58.) While this may indeed be a genuine dispute
between the parties, it is not material, as a temporal
connection alone is insufficient to establish causation. “The
mere fact that [an adverse action] occurs subsequent to the
lodging of a complaint is ordinarily insufficient to satisfy the
plaintiff's burden of demonstrating a causal link between the
two events.” Chambers v. Heidelberg USA, Inc., No. 04-583, 2006
WL 1281308, at *11 (D.N.J. May 5, 2006). There is no additional
evidence—direct or circumstantial—to support this claim. As
mentioned in the preceding discussion, the decision to select
Ms. Shelton and Ms. O’Brien for their respective positions in
scheduling and finance was justified by the legitimate rationale
that Plaintiff was not the best candidate for the job. It is a
far stretch for Plaintiff to argue that but for her EEOC charge,
she would have been selected for the positions when she herself

41 

did not meet the job requirements or qualifications. There is
simply no factual support in the record to support a causal link
between Defendant’s alleged retaliatory animus and the adverse
employment action in denying Plaintiff the Scheduling and
Finance positions. A merely temporal relationship, that these
non-selections occurred subsequent to Plaintiff’s filing of an
EEOC complaint, absent other evidence, does not suffice to
establish a prima facie case for retaliation. Summary judgment
will be granted on this claim.
C. Count II: 42 U.S.C. §1981
Count II of Plaintiff’s complaint will be dismissed because
her § 1981 claim has no viable legal basis as there is no private
right of action under 41 U.S.C. § 1981 for violations by a state
actor. McGovern v. City of Philadelphia, 554 F.3d 114 (3d Cir.
2009)(holding that “because Congress neither explicitly created a
remedy against state actors under § 1981, nor expressed its intent
to overrule Jett, 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.”);
Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701, 731, 733 (1989) (§
1981 does not itself provide a remedy against state actors); see
also Campbell v. Supreme Court of N.J., No. 11-555, 2012 WL 1033308
(D.N.J. Mar. 27, 2012). Given that Defendant as a unit of Camden

42 

County is a state actor, the exclusive remedy is § 1983. Ford v.
Se. Pa. Transp. Auth., 374 F. App’x 325, 326 (3d Cir. 2010) (citing
McGovern, 554 F.3d at 121). Accordingly, the Court is compelled by
Jett and McGovern to conclude that Plaintiff’s complaint under §
1981 is legally infirm.
The Court will not grant Plaintiff’s leave to amend because
the claim is not merely factually insufficient, but legally
infirm. Any amendment would be futile because Defendant is a
state actor, and a § 1981 claim cannot provide the vehicle for
relief. See Harrison Beverage Co. v. Dribeck Importers, Inc.,
133 F.R.D. 463, 468 (D.N.J. 1990) (citing 6 Wright, Miller, &
Kane, Federal Practice & Procedure § 1487 at 637-642 (2d ed.
1990)) (“If the proposed amendment is “frivolous or advances a
claim or defense that is legally insufficient on its face, the
court may deny leave to amend.”). Count II of Plaintiff’s
complaint is hereby dismissed with prejudice.
D. Count III: 42 U.S.C. §1983
Count III of Plaintiff’s Complaint alleges Defendant
violated her Equal Protection rights under 42 U.S.C. § 1983 for
intentionally discriminating against Plaintiff on the basis of
her race and for maintaining an illegal municipal custom and
policy that facilitated the disparate treatment she experienced
when she was reassigned to Ward Clerk and denied positions in

43 

scheduling and finance. (Complaint ¶ 53-55.) Defendant
persuasively argues that Plaintiff has failed to identify any
policy or custom of Defendant that amounted to a deliberate
indifference to Plaintiff’s rights. The Court agrees with
Defendant and has articulated its reasoning below for granting
summary judgment on this claim.
Section 1983 provides that "Every person who, under color
of [state law] subjects, or causes to be subjected, any citizen
of the United States . . . to the deprivation of any rights,
privileges, or immunities secured by the Constitution and laws,
shall be liable to the party injured.” In order to impose
liability on a local governmental entity for failing to preserve
a plaintiff’s constitutional rights, a plaintiff bringing a §
1983 claim must show that (1) she possessed a constitutional
right of which she was deprived; (2) the municipality had a
policy; (3) the policy amounted to deliberate indifference to
the plaintiff’s constitutional right; and (4) the policy was the
moving force behind the constitutional violation. Vargas v. City
of Phila., 783 F.3d 962, 974 (3d Cir. 2015) (internal quotation
marks omitted); see also A.M. ex rel. J.M.K. v. Luzerne Cty.
Juvenile Det. Ctr., 372 F.3d 572, 586 (3d Cir. 2004) (A
municipality or policymaker defendant will not be held liable
unless the defendant “with deliberate indifference to the

44 

consequences, established and maintained a policy or custom
which directly caused [the] constitutional harm.”) (internal
quotations and citation omitted); Mulholland v. Gov’t Cty. Of
Berks. Pa., 706 F.3d 227, 237 (3d Cir. 2013) (stating that a
municipality “‘can be held responsible as an entity when the
injury inflicted is permitted under its adopted policy or
custom.’” (quoting Beck v. City of Pittsburgh, 89 F.3d 966, 971
(3d Cir. 1996))). Plaintiff cannot sustain her § 1983 claim
against Defendant because no reasonable jury could find that
Defendant had a policy or custom that facilitated a
constitutional violation against her.
Plaintiff has failed to raise a genuine issue of material
fact as to whether CHNRC or the County of Cape May had a policy
that amounted to deliberate indifference of her rights, as
required to impose liability on Defendant. To the contrary,
Defendant had anti-discrimination and anti-retaliation policies
in place. (See Def. Ex. T, County of Cape May Equal Employment
and Opportunity Policy.) “Policy is made when a ‘decision maker
possessing final authority to establish municipal policy with
respect to the action, issues an official proclamation, policy,
or edict.” Geissler v. City of Atl. City, No. 16-792, 2016 WL
4071949, at * 4 (D.N.J. July 28, 2016). In civil rights actions,
municipalities and government officials are not liable for the

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unconstitutional conduct of employees under the doctrine of
respondeat superior. Macklin v. Cty. of Camden, 15-7641, 2016 WL
3545520, at *5 (D.N.J. June 28, 2016); see also Rode v.
Dellarciprete, 845 F.2d 1195, 1207 (3d Cir. 1988) (“A defendant
in a civil rights action must have personal involvement in the
alleged wrongs; liability cannot be predicated solely on the
operation of respondeat superior.”) While it is true that an
unconstitutional “custom” can be established even if it has not
received formal approval through the body’s official decision
making channels, see Monell v. Dep’t of Social Servs. of City of
N.Y., 436 U.S. 658, 590 (1978), in such a case the
unconstitutional practices must be “so permanent and well
settled as to constitute a ‘custom or usage’ with the force of
law.” Id. at 691 (citing Adickes v. S.H. Kress & Co., 398 U.S.
144, 167-168 (1970). In an attempt to address this clear legal
principle, Plaintiff tries to equate Ms. Drackett’s and Ms.
Thornton’s hiring authority with the authority to create
official employment policies for the entirety of CHNRC. (Pl.
Opp. 33.)

Plaintiff in her Opposition points to “ample

evidence” that Ms. Drackett and Ms. Thornton possessed final
policy-making authority. (Pl. Opp. 33.) Yet she fails to direct
the Court to any particular factual allegations about a specific
custom or policy or even rule, instituted by either Drackett or

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Thornton that would have fostered discriminatory action. (Pl.
Opp. 33.)

Consequently, Plaintiff falls short of alleging

grounds necessary to sustain a municipal liability claim, and
thus her claims under § 1983 will fail.
E. Count IV: New Jersey Law Against Discrimination
Defendant asserts that the NJLAD’s two-year statute of
limitations bars Plaintiff’s claims relating to conduct that
took place prior to October 22, 2012, because Plaintiff did not
file her complaint until October 22, 2014. “In employment
discrimination acts, the limitations period begins with the
‘time of the discriminatory act.’” Hanani v. N.J. Dep’t of
Envtl. Prot., 205 F. App’x 71, 76 (3d Cir. 2006) (quoting Miller
v. Beneficial Mgmt. Corp., 977 F.2d 834, 842 (3d Cir. 1992)).
Plaintiff does not dispute this fact and incorporates into Count
IV of her complaint only allegations of NJLAD violations as to
“conduct that occurred in the year 2013.” (Compl. ¶ 17.)
Therefore, only Defendant’s following “discrete acts” are
relevant to Plaintiff’s NJLAD allegations of discrimination and
retaliation: (i) reassignment of Plaintiff to Ward Clerk after
her return from FMLA leave in December 2012; (ii) rejection of
Plaintiff for the Scheduling Coordinator position in January
2013; and (iii) rejection of Plaintiff for the Finance Director
position in January 2013. See Illas v. Gloucester County

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Sherrif’s Dept., No. 14-4061, 2015 WL 778806, at *5 (D.N.J. Feb.
24, 2015) (explaining that “‘discrete acts’ are easy to identify
as discriminatory, such as termination, failure to promote,
denial of transfer, or refusal to hire.”). We turn to address
the merits of these remaining NJLAD claims.
Discrimination and retaliation claims under the NJLAD are
analyzed according to the same McDonnell Douglas burden-shifting
framework applied to Title VII claims. Campbell v. Supreme Court
of New Jersey, No. 11-555, 2012 WL 1033308, at *17 (D.N.J. Mar.
27, 2012) (citing Davis v. City of Newark, 285 F. App’x 899, 903
(3d Cir. 2008); see also Schurr v. Resorts Int’l Hotel, Inc.,
196 F.3d 486, 493 (3d Cir. 1999) (“Analysis of a claim made
pursuant to the NJLAD generally follows analysis of a Title VII
claim.”). Plaintiff’s claims with regards to these remaining
NJLAD allegations will be dismissed because she cannot establish
a prima facie case of discrimination or retaliation under the
NJLAD, and alternatively because Defendant has asserted a
legitimate non-discriminatory rationale for each of the discrete
acts, none of which has Plaintiff rebutted with evidence giving
rise to a genuine dispute of material fact. Thus the Court
refers to the reasons set forth in its substantive analysis of
Plaintiff’s Title VII claims to grant summary judgment on each
of Plaintiff’s NJLAD claims.

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F. Count V: NJCRA (New Jersey Civil Rights Act)
In her reply to Defendant’s Motion for Summary Judgment,
Plaintiff seeks a voluntary withdrawal of her NJCRA claim
pursuant to Fed. R. Civ. P. 41 (a)(2). The Court grants the
withdrawal and therefore will not delve into a substantive
analysis of this claim.
G. Count VI: Family and Medical Leave Act
Plaintiff alleges she was unlawfully “demoted” from Ward
Clerk upon return from FMLA leave, constituting (1) interference
and (2) retaliation under the FMLA. Defendant moves for summary
judgment on both claims. For the reasons set forth in the
foregoing section, Defendant’s motion will be granted in full.
An employer may be sued under the FMLA for interfering with an
employee’s FMLA rights, as well as retaliating against an
employee who exercises rights under the FMLA. Lupyan v.
Corinthian Colleges In., 761 F.3d 314, 317 (3d Cir. 2014).
“[F]iring an employee for a valid request for FMLA leave may
constitute interference with the employee’s FMLA rights as well
as retaliation against the employee.” Erdman v. Nationwide Ins.
Co., 582 F.3d 500, 509 (3d Cir. 2009); see also Lichtenstein v.
Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 312 (3d Cir. 2012).
The Court will address each claim in turn.

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1. Interference
The Court finds that there is no genuine dispute as to
whether Plaintiff would have been reassigned as part of
Defendant’s restructuring plan, even if she had not gone out on
FMLA leave. Thus, she cannot prevail on her interference claim
under the FMLA.

29 U.S.C. § 2615(a)(1) of the FMLA prohibits an

employer from “interfer[ing] with, restrain[ing], or deny[ing]
the exercise of or the attempt to exercise, any right” that it
guarantees. See Morro v. DGMB Casino LLC, 112 F. Supp. 3d 260,
279 (D.N.J. 2015).

The Act permits the employer to deny

reinstatement if the employee would have lost her job if she had
been working during the period of her leave. Parker, 324 F.
Supp. 2d at 485-86 (citing Taylor v. Union Inst., 30 F. App’x
443, 452 (6th Cir. 2002) (“An employee is not protected from an
adverse employment decision that would have occurred even if she
had not taken leave because “[t]he FMLA does not give the
employee on protected leave a bumping right over employees not
on leave.”). The FMLA states that “[n]othing in this section
shall be construed to entitle any restored employee to . . . any
right, benefit, or position of employment other than any right,
benefit, or position to which the employee would have been
entitled had the employee not taken leave.” § 2614(a)(3)(B).

50 

Regardless of her medical leave, Plaintiff would have been
reassigned since she no longer fit the job qualifications for
the ECM position after Defendant required an LPN for the job.
Prior to her even going on leave, Plaintiff already knew
her supervisors Ms. Thornton and Ms. McNulla had posted a job
opening for her current ECM position. (See D’Ambrosio Dep.
148:3-12.) Plaintiff readily admits that she knew “[Defendant]
wanted a more clinical person to resume the job duties of
External Case Manager.” (Id. at 148:23-25.) By modifying the job
qualifications, Defendant effectively eliminated the job
Plaintiff held before her FMLA leave. Therefore, Plaintiff could
not have resumed that position when she returned from leave,
since the ECM position as she had formerly occupied it was no
longer available. Furthermore, and quite significantly,
Plaintiff was not even officially working as an ECM. While she
claims she was still “acting as External Case Manager,” she “was
actually Admissions Clerk.” (D’Ambrosio Dep., 87:15-20)(emphasis
added).
Plaintiff further alleges that Defendant denied benefits
she was entitled to under the FMLA by reassigning her to Ward
Clerk in September 2012, which she argues is not an “equivalent
position” to her former role as ECM. (Pl. Opp. 37.) It is true
that upon return from qualified leave, an employee is entitled

51 

under the FMLA to return to her former position, or to an
equivalent one. Conoshenti v. Pub. Serv. Elec. & Gas. Co., 364
F.3d 135, 141 (3d Cir. 2004). However, “this entitlement to
restoration is a qualified one.” Morro, 112 F. Supp. 3d at 281;
see also Parker v. Hanhemann Univ. Hosp., 234 F. Supp. 2d 478,
485 (D.N.J. 2002) (“[T]he FMLA does not absolutely protect an
employee’s reinstatement.”). Regardless, the Ward Clerk position
is an equivalent position within the meaning of the FMLA. As
discussed above in the substantive analysis of her Title VII
claims, supra Section II(B)(1)(b), the Ward clerk position was
not a demotion, but simply a lateral transfer. In describing an
employee’s entitlement upon return, the FMLA states “ . . .

an

employee is entitled to be returned to the same position . . .
or to an equivalent position with equivalent benefits, pay, and
other terms and conditions of employment.” 29 C.F.R. § 825.14.
(emphasis added). Upon reassignment, Plaintiff still maintained
her Civil Service Title of Senior Clerk Typist with the same pay
and benefits. (D’Ambrosio Dep. 88:7-22; 115:12-23; 181:1-22.)
For the same reasons Plaintiff’s reassignment to Ward Clerk did
not constitute an alteration in Plaintiff’s terms and conditions
of employment under Title VII, there was no alteration under the
FMLA definition.

52 

Comparison of Plaintiff’s own descriptions of her
responsibilities in the two jobs is revealing. In describing the
role of Admissions clerk, Plaintiff’s actual position before she
went on FMLA leave, she stated an Admissions Clerk “would face
sheets, [meaning work the] papers signed with residents when new
residents would come into the facility . .

. [take] phone calls

from hospitals, check referrals . . . check insurances,
verification.” (D’Ambrosio Dep. 91:6-15.) As Ward Clerk,
Plaintiff explains her duties as “a lot of assistance with
residents . . . answering call lights, making sure doors, alarms
don’t go off . . . filing paperwork, making sure residents’
charts are organized.” (Id. at 89:1-11.) While the
responsibilities may not be exactly identical, the overlap in
patient interaction and clerical work demonstrates that the two
positions are sufficiently similar to constitute “equivalent
positions” within the meaning of the FMLA, and that no
reasonable factfinder could conclude that they were not.
Therefore, this Court will grant Defendant’s motion for
summary judgment on Plaintiff’s interference claim because no
questions of material fact remain about whether Plaintiff was
offered an equivalent position upon her return from FMLA leave,
nor whether Plaintiff’s role as ECM would not have remained
available to her even if she had not taken FMLA leave.

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2. Retaliation
Summary Judgment is further warranted in Defendant’s favor
on Plaintiff’s claim of FMLA retaliation because Defendant has
proffered a legitimate, non-retaliatory reason for Plaintiff’s
reassignment to Ward Clerk, as well as for its decisions to deny
Plaintiff the Scheduling and Finance Positions.
Since FMLA retaliation claims require proof of the
employer’s retaliatory intent, courts have assessed these claims
through the lens of employment discrimination law. Lichtenstein,
691 F.3d at 302. “Accordingly, claims [of FMLA retaliation]
based on circumstantial evidence have been assessed under the
burden shifting framework established in McDonnell Douglas.”
Id.; see also Skrjanc v. Great Lakes Power Serv. Co., 272 F.3d
309, 315 (6th Cir. 2001); O’Connor v. PCA Family Health Plan
Inc., 200 F.3d 1349, 1353 (11th Cir. 2000)(applying burdenshifting FMLA retaliation claim as is “common to employment
discrimination claims”); Hodgens v. General Dynamics Corp., 144
F.3d 151, 160 (5th Cir. 1998) (applying McDonnell Douglas to
FMLA retaliation claim because it deals with “tricky issues”
present in discrimination claims); Morgan v. Hilti Inc., 108
F.3d 1319, 1325 (10th Cir. 1997). Unlike in an interference
claim, in regards to FMLA retaliation claims defendants can
justify their actions by establishing a legitimate business

54 

purpose for its decision. Parker, 234 F. Supp. 2d at 492. As
analyzed in the preceding Title VII discussion, the Court finds
there is no material factual dispute as to the credence of
Defendant’s proffered justifications for its employment
decisions to deny her these positions—namely, that Plaintiff’s
lack of qualifications made her unsuitable for the scheduling
and finance positions, and Defendant’s business need demanded
reassigning Plaintiff to Ward Clerk. Because Plaintiff has not
met her burden of coming forth with admissible evidence tending
to show Defendant’s proffered explanation is not credible, the
Court will grant summary judgment and dismiss Plaintiff’s claim
of retaliation under the FMLA.
H. Count VII: New Jersey Family Leave Act
Courts apply the same FMLA standards and framework when
evaluating claims under the New Jersey Family Leave Act
(“NJFLA”). Wolpert v. Abbott Laboratories, 817 F. Supp. 2d 424,
437 (D.N.J. 2011); Santosuosso v. Novacare Rehabilitation, 462
F. Supp. 2d 590, 596 (D.N.J. 2006). As such, for the same
reasons as explained in the previous section, Plaintiff cannot
survive summary judgment on her claims under the NJFLA and
summary judgment is granted as to Count VII.

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V. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary
judgment is granted in full. Plaintiff’s claims are hereby
dismissed. An appropriate Order follows.

September 21, 2016
Date

_s/ Jerome B. Simandle
JEROME B. SIMANDLE
Chief U.S. District Judge

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