FOUNTAIN v. COVENANT SECURITY SERVICES, LTD. et al
OPINION. Signed by Judge Noel L. Hillman on 2/1/2017. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
COVENANT SECURITY SERVICES,
LTD., doing business as
COVENANT, and DOMINIC
HEIDI R. WEINTRAUB
WEINTRAUB & MARONE, LLC
801 N. KINGS HIGHWAY
CHERRY HILL, NJ 08034
On behalf of Plaintiff
MICHAEL J. WATSON
WILLIAM M. TAMBUSSI
BROWN & CONNERY, LLP
360 HADDON AVE
P.O. BOX 539
WESTMONT, NJ 08108
On behalf of Defendants
HILLMAN, District Judge
Presently before the Court is the motion of Defendants for
summary judgment on Plaintiff’s claims that Defendants violated
the New Jersey Law Against Discrimination when she was treated
differently based on her gender and was terminated for
complaining about harassment by her supervisor.
For the reasons
expressed below, Defendants’ motion will be granted in part and
denied in part.
Defendant Covenant Security Services, LTD. provides
security and protection services to clients at facilities across
the nation and in the State of New Jersey.
Fountain began her employment with Covenant as a security guard
on October 2, 2010.
During her employment with Covenant and up
to the date she was terminated from her employment – March 29,
2013 - Plaintiff worked at the Mission Solutions Engineering
(“MSE”) facility located in Moorestown, New Jersey.
primary client contact at MSE was Francis McKenna, a MSE
security operations manager, and Plaintiff was supervised by
Samuel Banks, the Covenant site manager at MSE.
Plaintiff and one other security guard were the only women
employed by Covenant as security guards at MSE.
Within a month
or two of her employment with Covenant, Plaintiff contacted
Defendant Dominic Ferrara, Covenant’s Vice-President of
Operations, by telephone to complain about Banks’ harassment of
her because she is a woman.
In April 2012, the other female
security guard resigned, leaving Plaintiff as the only woman
supervised by Banks at MSE.
In July 2012, MSE permanently consolidated two of its
engineering facilities in Moorestown into one facility.
result, MSE required less security guards.
to reduce all security guards’ hours, rather than to lay off any
After Covenant adjusted the hours of its security guards,
Plaintiff met with Ferrara and Ashely Dennis of Covenant’s human
resources department to express her belief that her hours were
being reduced more than her male co-workers.
Because she was
not informed about any investigation into her concerns, on
August 7, 2012, Plaintiff filed a complaint with the New Jersey
Division on Civil Rights (“DCR”) regarding the reduction of
hours and her belief that her hours had been reduced because she
is a woman.
Covenant ultimately determined that Plaintiff’s
hours had been reduced to a greater extent than her male coworkers and her schedule was adjusted accordingly by the end of
Plaintiff claims, however, that once she filed her
complaint with the DCR, she was continually discriminated
against because she is a woman, and retaliated against for
filing the DCR complaint and follow-up letters to Ferrara about
Banks’ harassing behavior.
Plaintiff claims that Banks
mistreated her by constantly humiliating, intimidating, sexually
harassing, and embarrassing her in the front lobby in front of
Plaintiff also claims that Banks yelled at her
and talked to her in a condescending way.
For example, he would
put his finger in her face and scream at her, disallow her to
get coffee and direct that her to make her own instant coffee
from the bathroom sink water, disallow her to eat lunch at her
desk, and blame her for the messy desk, all the while her male
counterparts were not similarly treated.
On November 30, 2012, Banks issued a written “corrective
action” to Plaintiff because Plaintiff broke the chain of
command when she spoke to an MSE upper-management employee about
a Covenant security guard who had expressed a troubling
sentiment to Plaintiff.
Plaintiff claims that the written
corrective action was discriminatory and retaliatory because
other male security guards, including Banks, spoke with MSE
employees and did not receive such a harsh sanction.
In February 2013, McKenna advised Covenant that because of
budget cuts and fiscal uncertainty, MSE would be reducing its
security shifts by 66 hours per week.
At that same time, on
February 4, 2013, McKenna sent an e-mail to Covenant management
addressing multiple complaints with regard to Plaintiff’s job
performance: (a) Plaintiff had failed to put out traffic cones
as instructed; (b) Plaintiff was not covering extra escort
shifts as requested; (c) Plaintiff advised an MSE employee “this
place will be closing down”; and (d) Plaintiff was “not a team
player and I’m fed up with it.”
According to McKenna, his
complaints about Plaintiff were not limited to the complaints in
the February 4, 2013 email, but were “the straw that broke the
Plaintiff refutes the items in McKenna’s email,
and contends that McKenna, whom she claims knew about
Plaintiff’s DCR complaint and complaints about Banks, was Banks’
cohort who endeavored to get rid of Plaintiff because she is a
woman and a “complainer.”
That same month, Covenant reviewed all of the personnel
files for the security guards, which revealed that Plaintiff was
the only security guard with any disciplinary history – the
November 30, 2012 “corrective action.”
Plaintiff was also the
only Covenant security guard about whom McKenna, Covenant’s
primary client contact at MSE, had complained.
Covenant, it determined that the 66-hour shift reduction
required it to lay off certain employees, as it would be
infeasible and a “logistical nightmare” to only reduce the hours
of all security officers at MSE like it had in the July 2012
Covenant considered terminating Plaintiff in
February 2013, but decided to keep her employed until the 66hour shift reduction went into effect. 1
Plaintiff was terminated
on March 29, 2013.
According to Covenant, it decided that a part-time male
employee, Donald Alterman, would also be laid off prior to the
reduction in security shifts at MSE, but on March 8, 2013,
Alterman voluntarily resigned from his employment. Plaintiff
claims that Alterman’s resignation, along with the delayed
termination, provided Covenant with a convenient post-hoc excuse
to support its purported legitimate business reason for
Based on this series of events, Plaintiff claims that
Covenant violated the New Jersey Law Against Discrimination,
N.J.S.A. 10:5-1 et seq., when it treated her differently because
of her gender, and when it retaliated against her because she
complained of disparate treatment.
Plaintiff also alleges that
Ferrara is personally liable for NJLAD violations because he
aided and abetted the discrimination.
Defendants have moved for
summary judgment in their favor, arguing that Plaintiff cannot
meet her prima facie case for either her discriminatory
treatment claim or retaliation claim, and she cannot otherwise
rebut their legitimate business reason for her termination.
Plaintiff has opposed Defendants’ motion.
Subject Matter Jurisdiction
Defendants removed this action from New Jersey state court
to this Court pursuant to 28 U.S.C. § 1441.
This Court has
jurisdiction over this matter pursuant to 28 U.S.C. § 1332(a)
because there is complete diversity of citizenship between the
parties and the amount in controversy exceeds $75,000.
Plaintiff is a citizen of New Jersey, Defendant Ferrara is a
citizen of the Commonwealth of Pennsylvania, and Defendant
Covenant is an Illinois corporation with its principal place of
business located in Illinois.
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
Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit.
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.
v. Catrett, 477 U.S. 317, 323 (1986).
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.
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-
A party opposing summary judgment must do more than just
rest upon mere allegations, general denials, or vague
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir.
NJLAD claims against Covenant
“The NJLAD is one of New Jersey's leading legislative
pronouncements that set forth the familiar proposition that the
clear public policy of [New Jersey] is to eradicate invidious
discrimination from the workplace.”
Carmona v. Resorts Int'l
Hotel, Inc., 915 A.2d 518, 528 (N.J. 2007) (quotation and
The NJLAD acknowledges the authority of
employers to manage their own businesses, but what makes an
employer’s personnel action unlawful is the employer's intent.
Zive v. Stanley Roberts, Inc., 867 A.2d 1133, 1138 (N.J. 2005).
Plaintiff has the initial burden of establishing a prima
facie case for each of her claims.
For her disparate treatment
claim, which describes a situation where an employer treats some
individuals less favorably than others because of a protected
characteristic, such as gender, see Gerety v. Atl. City Hilton
Casino Resort, 877 A.2d 1233 (N.J. 2005), Plaintiff must show:
1) she is a member of a protected class; 2) she was performing
her job at a level meeting her employer's legitimate
expectations; 3) she was subject to an adverse employment
action; and 4) the adverse employment action took place under
circumstances giving rise to an inference of unlawful
discrimination, Young v. Hobart West Group, 897 A.2d 1063, 1071,
(N.J. Super. App. Div. 2005).
For Plaintiff’s retaliatory discharge claim, there are
three elements to Plaintiff’s prima facie case: (1) plaintiff
engaged in a protected activity known by the employer; (2)
thereafter her employer unlawfully retaliated against her; (3)
her participation in the protected activity caused the
retaliation; and (4) she had a good faith, reasonable basis for
complaining about the workplace behavior.
Tartaglia v. UBS
PaineWebber Inc., 961 A.2d 1167, 1192 (N.J. 2008).
A prima facie claim for a violation of the NJLAD requires a
showing of the employer’s discriminatory motive, but because it
is often difficult to find direct proof of discrimination, New
Jersey has adopted the procedural burden-shifting methodology
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
Rossi v. New Jersey, 39 F. App’x 706, 709 (3d
Cir. 2002) (citing Peper v. Princeton Univ. Bd. of Trustees, 77
N.J. 55, 81-84, 389 A.2d 465 (1978)).
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
“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
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir.
This is a light burden.
Once the employer answers its relatively light burden by
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
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 nondiscriminatory 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).
Although Plaintiff bears the initial burden of establishing
a prima facie case of discrimination, it is a “rather modest”
burden that is meant to “demonstrate to the court that
plaintiff's factual scenario is compatible with discriminatory
Henry v. New Jersey Dept. of Human Servs., 204 N.J.
320, 331 (2010).
“When evaluating the validity of a plaintiff's
prima facie case, the court is to look solely at the evidence
pled by the plaintiff, regardless of defendant's claims to the
Zive, 867 A.2d at 1139 (citations omitted).
Covenant argues that Plaintiff has not established her
prima facie case for either of her claims.
Plaintiff’s ability to show how it treated her differently than
the male security guards, and it challenges her ability to show
the causal link between her DCR complaint and her termination.
The Court finds, however, that Plaintiff has met her modest
burden of establishing her prima facie case for both her
discrimination claim and her retaliation claim.
Plaintiff’s disparate treatment claim centers on the
unequal reduction in hours caused by the July 2012 MSE
Covenant does not dispute that Plaintiff’s hours
were reduced more than her male co-workers, and that she was the
only female security guard at MSE at that time.
These facts are
sufficient to state a prima facie case that Covenant may have
treated her differently because she is a woman.
Plaintiff’s proof also sets forth a prima facie case of
Covenant argues that because seven months lapsed
between Plaintiff’s DCR complaint and her termination, Plaintiff
cannot show the requisite causal connection between those two
events to demonstrate discriminatory intent.
argues that Plaintiff’s November 2012 “corrective action” is an
independent intervening act that cuts the causal chain between
Plaintiff also claims that she was denied overtime, but
Plaintiff has not presented sufficient evidence to show how she
was denied overtime while her male co-workers were not. Thus,
no disparate treatment claim can be maintained on the denial of
the DCR complaint and termination.
claim is more complex than Covenant’s simplified timeline.
Plaintiff claims that Banks’ harassment of Plaintiff
because of her gender started within a few months of employment,
and resulted in unequal distribution of hours after the July
2012 MSE consolidation.
Because she did not believe Covenant
was investigating her concerns over Banks and her hours,
Plaintiff filed a complaint with the DCR on August 7, 2012.
Even though by August 25, 2012 Plaintiff’s hours were back in
line with the male security guards, it is undisputed that
Plaintiff’s hours had been reduced during the time she
complained to Covenant management and filed her DCR complaint.
Plaintiff attributes this to her gender.
From there, Banks and the management of Covenant knew about
her DCR complaint, Banks’ harassment of Plaintiff increased, and
Covenant issued a “corrective action” against Plaintiff, which
discipline was not imposed on other Covenant employees,
including Banks, who also spoke with MSE employees.
further contends that Banks and McKenna “had each other’s back”
due to their shared history as former FBI agents, Banks and
McKenna were out to get Plaintiff because she was a
“complainer,” and McKenna’s email complaints about Plaintiff,
all of which Plaintiff denies, was conveniently sent at the same
time Covenant became aware that it would need to reduce its
staffing at MSE.
This series of events, when considered in the
light most favorable to Plaintiff, readily shows that
Plaintiff’s participation in the protected activity - the DCR
complaint - caused the retaliatory discharge.
Having established her prima facie cases, the burden shifts
to Covenant to explain its legitimate business decision for its
actions, with the burden then shifting back to Plaintiff to
produce material disputed facts that cast doubt on those
purported legitimate reasons.
With regard to Plaintiff’s
reduction in hours in July 2012, Covenant does not offer an
explanation as to why Plaintiff’s hours were reduced more
drastically than the male security officers.
over the period between July 2012, during which time Plaintiff
complained about the reduced hours and filed her DCR complaint,
and points to the time after August 25, 2012 when her hours
became in sync with the male security guards.
providing any legitimate business reason for the reduction of
hours from July through August 25, 2012, Plaintiff has nothing
Plaintiff, however, still retains the ultimate burden
of persuasion to show that the reduction of hours was a result
of Covenant’s animus toward Plaintiff’s gender, and it is for
the jury to determine whether to credit Plaintiff’s proofs on
For Plaintiff’s retaliation claim, Covenant has offered a
legitimate business reason for Plaintiff’s termination.
Covenant argues that it was required to reduce its security
guard staff, and Plaintiff was chosen to be laid off not because
of her DCR complaint and complaints about Banks’ harassment, but
because she was the only security guard with a discipline
history, and the only security guard MSE complained about.
Plaintiff has presented sufficient proof, if believed by a
jury, to cast doubt on Covenant’s proffered legitimate business
decision for Plaintiff’s termination.
First, a jury could
believe that is not a coincidence that Plaintiff was the only
security guard McKenna complained about, and the only security
guard who received a “corrective action” for speaking with an
MSE employee, because she was the only woman security guard, and
the only woman who filed a DCR complaint complaining about
disparate treatment based on gender.
Second, a jury could believe that Banks and McKenna
manufactured the February 4, 2013 email complaints about
Plaintiff to provide Covenant with a “legitimate” reason for
Even though Covenant argues that
responding to its client’s complaints about an employee must be
accepted as legitimate even if the client’s complaints are
ultimately not substantiated, the record does not contain
evidence that McKenna complained to Covenant management about
Plaintiff prior to notice of the 66-hour reduction at MSE, other
than the chain-of-command violation in November.
It is for a
jury to assess the credibility of the parties to decide whether
the complaints against Plaintiff were concocted as she contends,
or legitimate as Covenant contends.
Finally, Plaintiff points out that Covenant provided two
different reasons for her termination.
The April 2, 2013
employee termination form prepared by Ferrara lists the reason
for her termination as a layoff due to a reduction in hours.
The April 19, 2013 personnel action notice prepared by Banks
lists Plaintiff’s termination as an involuntary termination due
to “client’s dissatisfaction with subject.”
A jury must assess
the import of Covenant’s conflicting reasons for Plaintiff’s
termination on Plaintiff’s retaliation claim.
Consequently, because Plaintiff has provided proof, when
taken in the light most favorable to her, that demonstrates
weaknesses, implausibilities, inconsistences, incoherencies, or
contradictions in Covenant’s proffered legitimate reason for its
actions that a reasonable factfinder could rationally find
unworthy of credence, Plaintiff’s NJLAD disparate treatment and
retaliation claims against Covenant may proceed to trial. 3
The Court must briefly address two arguments made by the
parties in their motion papers:
(1) Covenant argues that because Plaintiff testified that only
Banks discriminated against her, and not the Covenant personnel
who purportedly made the employment decisions - Ferrara and HR
Plaintiff’s NJLAD claims against Ferrara
Plaintiff seeks to hold Ferrara individually liable for his
participation in the alleged discrimination and retaliation she
experienced during her employment at Covenant.
includes a prohibition that goes beyond employers and provides
department employees Brown and Dennis - Plaintiff cannot
maintain her discrimination and retaliation claims. Plaintiff’s
testimony supports why her NJLAD violation claims fail against
Ferrara individually, as discussed in the next section above,
but it does not serve as a complete defense to Plaintiff’s
claims against Covenant. A business entity acts through its
employees, and the NJLAD provides that “employers” are liable
for acts of employment discrimination. See N.J.S.A. 10:5–12(a).
Covenant has not articulated why Banks’ actions as Plaintiff’s
direct supervisor, and his communication to Covenant “decision
makers” about her, should not make Covenant vicariously liable
for its employees’ actions. See Cicchetti v. Morris County
Sheriff's Office, 947 A.2d 626, 643 (N.J. 2008) (explaining that
if a supervisor acted within the scope of his or her authority
in circumstances in which the employer had delegated that
authority, and if the NJLAD violation was aided by that grant of
authority, the employer would be vicariously liable); cf. Staub
v. Proctor Hosp., 562 U.S. 411, 415 n.1 (2011) (citation
omitted) (explaining that 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”). Thus, even if Plaintiff did not believe
that Ferrara, Brown or Dennis directly discriminated against
her, Banks’ alleged discriminatory actions and statements, which
were credited by Ferrara, Brown, and Dennis, may impose
liability for NJLAD violations on Covenant.
(2) Plaintiff argues that the Court may consider as “me too”
evidence lawsuits filed by seven former Covenant employees
against Covenant for various forms of discrimination as
additional evidence of pretext. The Court does not need to
consider this evidence in resolving Defendants’ motion for
summary judgment, and the Court takes no position at this time
as to whether such evidence may be admissible at trial.
that “[i]t shall be ... unlawful discrimination ... [f]or any
person, whether an employer or an employee or not, to aid, abet,
incite, compel or coerce the doing of any of the acts forbidden
[under the NJLAD] . . . .”
“aiding and abetting” require active and purposeful conduct, and
in order to hold an employee liable as an aider or abettor, a
plaintiff must show that “(1) the party whom the defendant aids
must perform a wrongful act that causes an injury; (2) the
defendant must be generally aware of his role as part of an
overall illegal or tortious activity at the time that he
provides the assistance; (3) the defendant must knowingly and
substantially assist the principal violation.”
Morris County Sheriff's Office, 947 A.2d 626, 645 (N.J. 2008).
Plaintiff has not provided sufficient evidence that
Ferrara’s actions went beyond the scope of an employee’s conduct
that is typically imputed to his employer such that he would
rise to the level of an “aider and abettor.”
See, e.g., id. at
646 (“Although each [individual defendant] undoubtedly had
responsibility over the employees and over the workplace, and
although there is evidence that they failed to act so as to
protect plaintiff or effectively respond to his complaints of
discrimination, their acts are imputed to plaintiff's employer .
. . as a result of their status as supervisors.
paradigm applies to plaintiff's efforts to hold them
individually liable, however.
Standing alone, the acts and
failures to act that plaintiff attributes to the Sheriff and
Undersheriff fall well short of the ‘active and purposeful
conduct’ . . . .”).
Consequently, Ferrara is entitled to
summary judgment on Plaintiff’s claims against him.
For the reasons expressed above, Plaintiff’s claims that
Covenant violated the NJLAD by treating her differently because
she is a woman and by retaliating against her because she
complained about this mistreatment may proceed to trial.
Accordingly, Covenant’s motion for summary judgment on those
claims must be denied.
Plaintiff’s claims against Dominic
Ferrara for individual liability for the alleged NJLAD
violations fail as a matter of law, and summary judgment must be
entered in his favor.
An appropriate Order will be entered.
Date: February 1, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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