JOHNSON v. CAMDEN CITY SCHOOL DISTRICT

Filing 33

OPINION FILED. Signed by Judge Noel L. Hillman on 3/31/17. (js)

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

BARBARA JOHNSON,

1:15-cv-01124-NLH-JS

Plaintiff,
OPINION
v.
CAMDEN CITY SCHOOL DISTRICT,
Defendant.

APPEARANCES:
ARI R. KARPF
JULIA W. CLARK
KATIE ANN PILGREN
TIMOTHY STEVEN SEILER
KARPF, KARPF & CERUTTI, P.C.
3331 STREET ROAD, SUITE 128
TWO GREENWOOD SQUARE
BENSALEM, PA 19020
On behalf of Plaintiff
RICHARD L. GOLDSTEIN
ASHLEY L. TOTH
MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN, PA
WOODLAND FALLS CORPORATE PARK
200 LAKE DRIVE EAST
SUITE 300
CHERRY HILL, NJ 08002
On behalf of Defendant

HILLMAN, District Judge
Presently before the Court is the motion of Defendant for
1

summary judgment on Plaintiff’s claims that Defendant violated her
rights under the Family and Medical Leave Act.

For the reasons

expressed below, Defendant’s motion will be granted in part and
denied in part.
BACKGROUND
Plaintiff, Barbara Johnson, was employed by Defendant, Camden
City School District, as a head custodian from 1996 until August
30, 2013.

As head custodian, Plaintiff was responsible for

supervising four adult custodians and, during the summer, four
student custodians who were employed through a work program.

Even

though Plaintiff worked at different schools in Camden over the
years, she was stationed at the Cramer School from 2009 through
her termination in August 2013.
On June 20, 2013, Plaintiff requested leave under the Family
and Medical Leave Act of 1993, 29 U.S.C. § 2601, et seq., to care
for her mother who was diagnosed with cancer.

Plaintiff requested

that the leave would be taken intermittently from June 2013
through December 2013.

The District approved Plaintiff’s request.

Plaintiff claims that when she informed the Cramer School’s
principal, Andrea Surratt, that the District had granted
Plaintiff’s intermittent FMLA leave request, Surratt became
extremely hostile to her.

Plaintiff claims that when she began to

take time off to care for her mother, Surratt became even more
2

hostile.
On July 18, 2013, a few weeks after Plaintiff began her
intermittent FMLA leave, the Cramer School was broken into by two
teenage males.

The perpetrators stole a flat screen television,

X-Box, K-Nect System, DVD player, Dell laptop and a number of
games and other items.

Video surveillance showed that the boys

used a ladder to enter the school through a window which was
unlocked and without an alarm.
On July 22, 2013, Surratt met with Plaintiff and requested
that she not provide her keys to the student custodians or permit
them to work without supervision because it had been reported to
her by staff that they had seen students with keys, and it
appeared that the teenage burglars knew their way around the
school and where to go to get what they wanted.

The next day, a

student used Plaintiff’s keys and did not return them to her. 1

The

following morning, July 24, 2013, the student’s aunt returned
Plaintiff’s keys to the front office.
Later that day, Surratt wrote a letter to the District’s
Director of Facilities, Steve Nicolella.

1

Surratt detailed the

The parties dispute how the student obtained Plaintiff’s
keys. Plaintiff maintains that the student took her keys without
her knowledge or permission, while the District contends that
Plaintiff knowingly gave the keys to the student. This issue is
discussed in more detail below.
3

circumstances of the break-in, and noted that a day after she told
Plaintiff not to allow students to use her keys, a student had
possession of her keys unsupervised.

Surratt deemed Plaintiff’s

conduct to be insubordinate and endangered the safety and security
of the students and staff of the building.

Surratt requested a

meeting with Plaintiff’s union representative and asked that
action be taken against Plaintiff.

Surratt also informed

Nicolella that she was holding Plaintiff’s keys until the meeting
took place.
On July 24, 2013, Plaintiff met with the Supervisor of
Facilities, LaVon Tatem, Plaintiff’s union representative, Leon
Blackwell, and Surratt.

Following the meeting, Tatem wrote a

letter to Plaintiff, informing her that her conduct constituted
insubordination and caused an unsafe work environment in violation
of School Board policy.
offence, explaining:

Tatem recommended termination for this

“You were told not to give your keys to

students and did so anyway, then forgot to retrieve them from the
student to which the aunt of the student brought the keys back to
the building the next day.

This also happened days after a break-

in at your building which is still being investigated.”
No. 27-4 at 8.)

(Docket

Plaintiff was suspended at the end of July 2013,

and on August 27, 2013, the District Superintendent and Advisory
Board’s meeting approved Plaintiff’s termination effective August
4

30, 2013.
Plaintiff claims that the District’s action violated her FMLA
rights in two ways. 2

First, Plaintiff contends that the District

interfered with her FMLA rights when Surratt started to become
hostile to her when she informed Surratt of her intention to take
intermittent FMLA to care for her ill mother, and then increased
her hostility when Plaintiff began taking time off.

Second,

Plaintiff claims that her termination for the keys issue was a
pretext and the true motivation for her termination was her use of
FMLA leave.
The District has moved for summary judgment on both
Plaintiff’s interference and retaliation claims.

Plaintiff has

opposed the District’s motion, arguing that material disputed
facts require that the matter must go to a jury.
DISCUSSION
A.

Subject Matter Jurisdiction

This Court has jurisdiction over Plaintiff’s federal claims
under 28 U.S.C. § 1331, and supplemental jurisdiction over
Plaintiff’s state law claim pursuant to 28 U.S.C. § 1367.

2

Plaintiff had also lodged claims against the District for age
discrimination under the Age Discrimination in Employment Act of
1967 and the New Jersey Law Against Discrimination. Plaintiff
states that she no longer wishes to pursue those claims. (Docket
No. 30 at 3 n.2.)
5

B.

Standard for Summary Judgment

Summary judgment is appropriate where the Court is satisfied
that the materials in the record, including depositions,
documents, electronically stored information, affidavits or
declarations, stipulations, admissions, or interrogatory answers,
demonstrate that there is no genuine issue as to any material fact
and that the moving party is entitled to a judgment as a matter of
law.

Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986); Fed. R.

Civ. P. 56(a).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
(1986).

Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248

A fact is “material” if, under the governing substantive

law, a dispute about the fact might affect the outcome of the
suit.

Id.

In considering a motion for summary judgment, a

district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the non-moving party's
evidence “is to be believed and all justifiable inferences are to
be drawn in his favor.”

Marino v. Industrial Crating Co., 358

F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Initially, the moving party has the burden of demonstrating
the absence of a genuine issue of material fact.
Catrett, 477 U.S. 317, 323 (1986).
6

Celotex Corp. v.

Once the moving party has met

this burden, the nonmoving party must identify, by affidavits or
otherwise, specific facts showing that there is a genuine issue
for trial.

Id.

Thus, to withstand a properly supported motion

for summary judgment, the nonmoving party must identify specific
facts and affirmative evidence that contradict those offered by
the moving party.

Anderson, 477 U.S. at 256-57.

A party opposing

summary judgment must do more than just rest upon mere
allegations, general denials, or vague statements.

Saldana v.

Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
C.

Analysis

The FMLA 3 affords eligible employees “a total of 12 workweeks
of leave during any 12–month period” in order “to care for the . .
. parent of the employee, if such . . . parent has a serious
health condition.”

29 U.S.C. § 2612(a)(1)(C).

Following FMLA

leave, an employee is entitled to be reinstated to the former
position or an alternate one with equivalent pay, benefits and
working conditions.

See id. § 2614(a)(1).

The FMLA provides

relief for interference of these FMLA rights as well as for
retaliation for using these FMLA rights.
The FMLA declares it “unlawful for any employer to interfere

3

Plaintiff has also advanced claims pursuant to New Jersey’s
FMLA. N.J.S.A. 34:11B-9. The analysis of Plaintiff’s claims is
the same for both the federal and state FMLA.
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with, restrain, or deny the exercise of or the attempt to
exercise, any right provided” in the FMLA.
2615(a)(1).

29 U.S.C. §

Such a claim is typically referred to as an

“interference” claim.

Sommer v. The Vanguard Group, 461 F.3d 397,

398-99 (3d Cir. 2006).

To assert an interference claim, “the

employee only needs to show that he was entitled to benefits under
the FMLA and that he was denied them.”
(citation omitted).

Sommer, 461 F.3d at 399

“An interference action is not about

discrimination, it is only about whether the employer provided the
employee with the entitlements guaranteed by the FMLA.”

Id.

(citation omitted).
An FMLA retaliation claim presents a different analysis.
FMLA regulations provide:
An employer is prohibited from discriminating against
employees or prospective employees who have used FMLA
leave. For example, if an employee on leave without pay
would otherwise be entitled to full benefits (other than
health benefits), the same benefits would be required to
be provided to an employee on unpaid FMLA leave. By the
same token, employers cannot use the taking of FMLA
leave as a negative factor in employment actions, such
as hiring, promotions or disciplinary actions; nor can
FMLA leave be counted under “no fault” attendance
policies.
29 C.F.R. § 825.220(c).
To establish a prima facie case of retaliation under the
FMLA, a plaintiff must show that:
(1) she took FMLA leave,
8

The

(2) she suffered an adverse employment decision, and
(3) the adverse decision was causally related to her leave.
Lepore v. Lanvision Systems, Inc., 113 F. App’x 449, 452, 2004 WL
2360994, *2 (3d Cir. 2004) (citing Conoshenti v. Public Service
Electric & Gas Co., 364 F.3d 135 (3d Cir. 2004)).

Temporal

proximity that is “unduly suggestive” satisfies the causation
element of a plaintiff’s prima facie case at the summary judgment
stage.

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 279-80

(3d Cir. 2000)); see also Thomas v. Town of Hammonton, 351 F.3d
108, 114 (3d Cir. 2003) (quoting Estate of Smith v. Marasco, 318
F.3d 497, 512 (3d Cir. 2003)(“Even if timing alone could ever be
sufficient to establish a causal link, . . . the timing of the
alleged retaliatory action must be unusually suggestive of
retaliatory motive before a causal link will be inferred.”)).
Using time to satisfy the causation element of the prima facie
case, however, requires consideration “with a careful eye to the
specific facts and circumstances encountered.”

Farrell, 206 F.3d

at 279 (citing Kachmar v. SunGard Data Sys., 109 F.3d 173, 178 (3d
Cir. 1997)).

“There is clearly a difference between two days and

nineteen months.”

Id. (citations omitted); see also Williams v.

Philadelphia Housing Authority Police Dept., 380 F.3d 751, 760 (3d
Cir. 2004) (holding that two months was not “unduly suggestive”);
Thomas, 351 F.3d at 114 (holding that three weeks was not “unduly
9

suggestive”).
If the timing of the events is not “unduly suggestive,” the
plaintiff can still show a causal link with other circumstantial
evidence, such as evidence of ongoing antagonism or inconsistent
reasons for terminating the employee.
cases).

Id. at 280 n.15.

Id. at 280-81 (citing

Once a plaintiff makes out a prima

facie case, the usual McDonnell Douglas Corp. v. Green, 411 U.S.
792 (1973) burden shifting framework is implicated.

Id. (citing

Weston v. Pennsylvania, 251 F.3d 420, 432 (3d Cir. 2001)).
Under the McDonnell Douglas standard, after a plaintiff
establishes a prima facie case, a presumption of discrimination is
created and the burden of production shifts to the defendant to
articulate some legitimate, nondiscriminatory reason for its
actions.

“The employer satisfies its burden of production by

introducing evidence which, taken as true, would permit the
conclusion that there was a nondiscriminatory reason for the
unfavorable employment decision.

The employer need not prove that

the tendered reason actually motivated its behavior, as throughout
this burden-shifting paradigm the ultimate burden of proving
intentional discrimination always rests with the plaintiff.”
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994).
light burden.

This is a

Id.

Once the employer answers its relatively light burden by
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articulating a legitimate, nondiscriminatory reason for the
unfavorable employment decision, the burden of production returns
to the plaintiff, who must now show by a preponderance of the
evidence that the employer's explanation was merely a pretext for
its actions, thus meeting the plaintiff's burden of persuasion.
Goosby v. Johnson & Johnson Med., Inc., 228 F.3d 313, 319 (3d Cir.
2000) (citing Reeves v. Sanderson Plumbing Prod. Inc., 530 U.S.
2097 (2000)).

“[T]o avoid summary judgment, the plaintiff’s

evidence rebutting the employer’s proffered legitimate reasons
must allow a factfinder reasonably to infer that each of the
employer’s proffered non-discriminatory reasons was either a post
hoc fabrication or otherwise did not actually motivate the
employment action (that is, the proffered reason is a pretext).”
Fuentes, 32 F.3d at 764 (internal citations and quotes omitted).
To do this, plaintiff “must demonstrate such weaknesses,
implausibilities, inconsistences, incoherencies, or contradictions
in the employer’s proffered legitimate reasons for its action that
a reasonable factfinder could rationally find unworthy of
credence, and hence infer that the employer did not act for [the
asserted] non-discriminatory reasons.”

Id. at 765 (internal

citations and quotes omitted).
Plaintiff presents the following actions by Surratt to
support both her FMLA interference claim and her retaliation
11

claim:
Ms. Johnson testified that prior to her application for
and use of intermittent FMLA leave, she had a good
relationship with Ms. Surratt. Pl. Resp. SOF at ¶ 26.
However, this drastically changed after Johnson was approved
for and utilized her FMLA leave. Pl. Resp. SOF at ¶ 27.
Specifically, Ms. Johnson testified that after seeking FMLA
leave, Ms. Surratt became very aggressive, rude and
disrespectful towards Ms. Johnson and expressed direct
hostility towards Ms. Johnson’s application and need for FMLA
leave. Pl. Resp. SOF at ¶ 26-27. For example, when Ms.
Johnson brought Ms. Surratt the FMLA paperwork, Ms. Surratt
became hostile, screamed at Ms. Johnson and made a big
commotion over Ms. Johnson’s request for leave. Pl. Resp.
SOF at ¶ 27. Ms. Surratt also voiced her concerns to the
Vice Principal of the Cramer School regarding Ms. Johnson’s
FMLA leave. Id. Ms. Surratt expressed that she was
specifically upset over Ms. Johnson’s FMLA as she was
concerned that it would impact her attendance rating at the
school. Id. On another occasion, Ms. Surratt became very
aggressive with Johnson in connection to Ms. Johnson[’s] need
for a partial day off for an appointment for her mother’s
care. Id. Ms. Surratt specifically threatened Plaintiff
when she requested time off under her intermittent FMLA
[leave], telling Plaintiff in an aggressive manner that if
Plaintiff took the day, Ms. Surratt would do what she needed
to do. Id. Ms. Surratt further expressed her hostility
toward Ms. Johnson taking FMLA time by telling Ms. Johnson
that she should not take time off and should schedule
appointments, and care for her mother after working hours.
Id. Ms. Surratt referred to Ms. Johnson’s time off as a
“privilege” and compared Ms. Johnson to other teachers and
staff members. Id. Additionally, when Ms. Johnson attempted
to take days off in connection to her intermittent FMLA
leave, Ms. Surratt threatened her. Id.
In addition, once Ms. Johnson began taking days off
under her intermittent leave, Ms. Surratt expressed concern
with the validity of Ms. Johnson’s FMLA use and as a result
another employee, James Drew, was assigned to watch and
monitor Ms. Johnson. Pl. Resp. SOF at ¶ 28-29. Ms. Surratt
was angry when she expressed her concerns about Plaintiff’s
need for time off and she specifically was worried that
Plaintiff’s absences would impact the cleanliness of the
12

school building.

Pl. Resp. SOF at ¶ 29.

(Docket No. 30 at 14-15, see also Docket No. 30 at 9 for a summary
of the same evidence.)
Plaintiff argues that Surratt’s discouragement of Plaintiff’s
use of FMLA time constitutes interference with her FMLA rights.
As for her retaliation claim, Plaintiff argues that the timing of
events and the direct hostility and antagonism Plaintiff suffered
from Surratt, who was the individual responsible for setting into
action Plaintiff’s termination, demonstrates a causal link between
Plaintiff’s FMLA rights and her termination sufficient to state a
prima facie case of FMLA retaliation.
Plaintiff further argues that the District’s proffered reason
for her termination – that she allowed a student to use her keys
unsupervised even after she was told not to – is a pretext to
cover the District’s true motivation, which was Surratt’s
retaliation for Plaintiff’s FMLA needs and usage because Surratt
no longer wanted Plaintiff at her school.

Plaintiff presents the

following evidence as pretext:
(1) Hope Perry (the Vice Principal of the Cramer School)
testified that she did not believe that Plaintiff should have been
terminated for the alleged infraction that Plaintiff committed;
(2) there was no policy against allowing others to use the
keys, and in fact James Drew testified that he would give out his
13

keys to other employees to use during the time that he was a head
custodian.

Drew further testified that it was up to the

discretion of the person with the keys to decide whether or not to
allow others to use them;
(3) another custodian who also worked under Surratt once
misplaced her keys for 1-2 days and received absolutely no
discipline for this, even though this action could certainly have
put the school at risk or in danger;
(4) Defense witnesses testified that the reason Plaintiff was
terminated was because she gave her keys to the student worker.
Plaintiff vehemently disputes that she ever did this and disputes
that she ever told Surratt that she did.

Plaintiff argues that

this is a key fact issue based on the credibility of the parties
that must be submitted to a jury. (Docket No. 30 at 16-17.)
In response, the District argues that because Plaintiff’s
FMLA rights were never “chilled” – that is, Plaintiff actually
took her FMLA time as she needed to – Plaintiff cannot support her
interference claim.

In regard to Plaintiff’s retaliation claim,

the District argues that there is no causal connection between her
use of FMLA time and her termination.

The District argues that

Plaintiff was terminated for insubordination and endangering the
staff and students of the school when she allowed a student to use
her keys unsupervised the very day after she was told not to do
14

these things.

The District argues that Plaintiff’s FMLA leave had

nothing to do with the keys issue.
The District further argues that Plaintiff’s purported
evidence to support pretext is belied by the record evidence.

The

District points out that Hope Perry testified that she believed
that Plaintiff should not have been terminated if the student took
the keys without Plaintiff’s permission, not, however, if
Plaintiff allowed the student to take her keys.

As to Plaintiff’s

argument that there was no policy about allowing others to use
custodian keys, Plaintiff herself testified that she was not
permitted to give her keys to anyone, and James Drew testified
that it was inappropriate to give his keys to summer student
employees.
The District also points out that at no time during her union
grievance procedures did she suggest that she was being retaliated
against because of her use of FMLA leave.

Indeed, the grievance

notice filed on her behalf provided, in relevant part:
The statement by Principal Surratt also states that on July
23, 2013, a student worker handed keys in to the main office
that was handed to him by Ms. Johnson. The keys were not
handed to him, Ms. Johnson allowed him to take them off the
desk to take some boxes to the third floor on the elevator
because she was busy waxing a floor. The student worker
never returned the keys to Ms. Johnson. This was a mistake
and an error in judgment on behalf of Ms. Johnson. A
decision that she certainly wishes that she could take back
and a decision that she regrets. The wonderful thing about
this part of it is that the student worker returned the keys
15

and no further incidents occurred.
(Docket No. 32 at 17.)

The District argues that Plaintiff cannot

establish that the reason for her termination was a pretext.
The Court finds that disputed issues of material fact exist,
primarily related to credibility determinations, which compels the
denial of the District’s summary judgment motion on both
Plaintiff’s FMLA interference claim and her FMLA retaliation
claim.

With regard to Plaintiff’s interference claim, Plaintiff

contends that Surratt treated Plaintiff with hostility when
Plaintiff began to take FMLA leave, and the District denies that
Surratt did so specifically with regard to Plaintiff’s FMLA leave,
rather than the keys issue.

The Court cannot credit one position

over the other, and the parties’ testimony must be evaluated by a
jury.
Further, even though a claim based on 29 U.S.C. § 2615(a)(1)
concerns only whether an employer has prevented its employee from
availing herself of her FMLA leave, and not whether an employee
has suffered an adverse employment action as a result of using her
FMLA leave, and during the few weeks prior to Plaintiff’s
termination she took the leave she needed at the time, Plaintiff’s
interference claim may still stand.

Plaintiff’s termination

precluded her from using more than only a few weeks of her
afforded six-month leave.

Plaintiff’s allegation that Surratt’s
16

hostility led to her termination, if true, is the ultimate
“interference” with Plaintiff’s FMLA rights.

Whether this

interference was related to Plaintiff’s use of her FMLA leave, as
Plaintiff’s contends, or to Plaintiff’s “insubordination,” as the
District contends, is for a jury to decide.
Plaintiff’s FMLA retaliation claim must also be submitted to
a jury for resolution.

First, Plaintiff has establish her prima

facie case due to the temporal proximity of Plaintiff’s
termination and Plaintiff’s use of FMLA leave.

Plaintiff argues

that Surratt’s hostility over her use of FMLA leave time caused
Surratt to seize on a student’s unauthorized use of Plaintiff’s
keys and set into motion the events that resulted in Plaintiff’s
termination for insubordination.

This is sufficient to satisfy

Plaintiff’s prima facie case for her retaliation claim.
Having established her prima facie case, the ultimate issue
Plaintiff must prove to support her retaliation claim is that the
District’s decision - that a student’s possession of Plaintiff’s
keys the day after she was told not to give her keys to student
custodians and leave the student custodians unsupervised
constituted insubordination, endangered the school’s safety, and
warranted termination – is so full of weaknesses,
implausibilities, inconsistences, incoherencies, or contradictions
that a reasonable factfinder could not find it worthy of credence,
17

and hence infer that the District did not act for the asserted
non-discriminatory reasons.

See Fuentes, 32 F.3d at 764.

Plaintiff has presented sufficient disputed material facts to
suggest, if her facts and testimony are believed by a jury, that
the District’s proffered reason for her termination was a pretext. 4
Plaintiff specifically denies that she provided her keys to
the student and denies that she told Surrat that she did, while

4

The District argues that Plaintiff has failed to show that
during the meeting between Surratt, Supervisor of Facilities LaVon
Tatem, Plaintiff and her union representative which resulted in
Tatem’s determination that Plaintiff’s conduct warranted
dismissal, Tatem knew about or considered Plaintiff’s FMLA status
in his decision. The District also argues that the record is
similarly void of any evidence to show that Plaintiff’s FMLA
status was a consideration in the Superintendent’s Advisory
Board’s final determination to terminate Plaintiff’s employment.
In response, Plaintiff argues that she can establish a “cat's
paw” case of FMLA discrimination. “The term ‘cat's paw’ derives
from a fable conceived by Aesop, put into verse by La Fontaine in
1679, and injected into United States employment discrimination
law by [Judge] Posner in 1990.” Staub v. Proctor Hosp., 562 U.S.
411, 415 n.1 (2011) (citation omitted). In a “cat's paw” case, a
plaintiff seeks “to hold his employer liable for the animus of a
supervisor who was not charged with making the ultimate employment
decision.” Id. To succeed on such a case, a plaintiff must show
that the non-decisionmaker exercised such “singular influence”
over the decisionmaker that the decision to terminate was the
product of “blind reliance.” Id. (citation omitted). Here, given
Surratt’s position as principal, her allegedly hostile reaction to
Plaintiff’s request for leave, and her initiation and apparent
personal prosecution of the complaint against Plaintiff for
insubordination, we believe that Plaintiff has proffered
sufficient evidence for a jury to conclude that Surratt exercised
a “singular influence” over the District’s ultimate decision to
terminate her so that the District is liable for Surratt’s
discriminatory animus.
18

Surratt informed the District that Plaintiff did give her keys to
the student and admitted to doing so.

Again, the Court cannot

assess the credibility of Plaintiff or Surratt, or credit one
version of events over the other.

Because a jury’s belief in

Plaintiff’s testimony would cast doubt on the District’s stated
reason for Plaintiff’s termination, and suggest that Surratt was
motivated by Plaintiff’s use of her FMLA leave rather than
Surratt’s concern about Plaintiff’s purported insubordination, the
Court cannot grant summary judgment in the District’s favor on
Plaintiff’s retaliation claim.
Beyond Plaintiff’s testimony, other evidence in the record,
if believed by a jury, could cast doubt on the articulated basis
for Plaintiff’s termination, as set forth above: (1) Vice
Principal Perry’s testimony that Plaintiff’s termination was not
warranted if Plaintiff did not give the keys to the student; (2)
the absence of a policy against allowing others to use the keys,
and Drew’s testimony that he would give out his keys to other
employees to use during the time that he was a head custodian, and
that it was up to the discretion of the person with the keys to
decide whether or not to allow others to use them; and (3) another
custodian who also worked under Surratt once misplaced her keys
for 1-2 days and received absolutely no discipline.

Of course, a

jury could credit the District’s competing evidence that would
19

impugn Plaintiff’s claims, but that dispute is why the matter must
be presented to a jury.
CONCLUSION
The Court is satisfied that the materials in the record
demonstrate that there are genuine issues of material fact on
Plaintiff’s FMLA interference claim and her FMLA retaliation
claim, arising under the federal and state versions of the FMLA.
The District’s motion for motion for summary judgment must
therefore be denied as to those claims.

Because Plaintiff states

that she does not wish to pursue her claims against the District
for age discrimination under the AEDA and NJLAD, the District is
entitled to judgment in its favor on those claims. 5
An appropriate Order will be entered.

Date:
March 31, 2017
At Camden, New Jersey

5

s/NLH
NOEL L. HILLMAN, U.S.D.J.

Plaintiff cannot voluntarily withdraw those claims once the
District filed its motion for summary judgment. See Fed. R. Civ.
P. 41(a)(ii) (“[T]he plaintiff may dismiss an action without a
court order by filing . . . a notice of dismissal before the
opposing party serves either an answer or a motion for summary
judgment.”).
20