OLEARY v. COUNTY OF SALEM et al
OPINION. Signed by Judge Noel L. Hillman on 10/12/2017. (tf, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
COUNTY OF SALEM
CORRECTIONAL FACILITY AND
SHERIFFS OFFICE) and ROWAN
COLLEGE AT GLOUCESTER COUNTY
GLOUCESTER COUNTY POLICE
SARAH F. MEIL
4839 WALTON AVE.
PHILADELPHIA, PA 19143
On behalf of Plaintiff
THOMAS J. WAGNER
AMY L. WYNKOOP
LAW OFFICES OF THOMAS J. WAGNER
8 PENN CENTER - 6TH FLOOR
1628 JOHN F. KENNEDY BOULEVARD
PHILADELPHIA, PA 19103
On behalf of Defendant County of Salem
CHRISTINE P. O'HEARN
CHRISTOPHER ALBERT REESE
BROWN & CONNERY, LLP
360 HADDON AVENUE
PO BOX 539
WESTMONT, NJ 08108
On behalf of Defendant Rowan College at Gloucester County
Gloucester County Police Academy
HILLMAN, District Judge
Presently before the Court is the motion of Defendants for
summary judgment in their favor on Plaintiff’s sex 1 and disability
For the reasons expressed below,
Defendants’ motions will be granted in part and denied in part.
Plaintiff, Tiffany O’Leary, began working as a Corrections
Officer at Salem County Correctional Facility (“SCCF”) on November
For two years, Plaintiff received positive performance
evaluations and got along well with her co-workers.
On December 1, 2012 while working on what is referred to as
the “B-Shift,” Plaintiff uncovered evidence of illegal drugs being
brought into the facility by another corrections officer and a
civilian employee who was the son of a former warden of the
Plaintiff reported the activity to her superior
Plaintiff claims, from that point on and for more than a
year, she suffered constant and systematic hostility, harassment,
Currently, the New Jersey Law Against Discrimination prohibits
discrimination based on “sex,” “gender identity or expression” and
“affectional or sexual orientation.” N.J.S.A. 10:5–12(a). Prior
to the statutory amendment adding “gender identify or expression”
and “affectional or sexual orientation” in 2006, the terms
“gender” and “sex” were used interchangeably, and the New Jersey
courts explained the distinction between sex and gender was that
the latter encompassed “whether a person has qualities that
society considers masculine or feminine.” Schiavo v. Marina Dist.
Development Co., LLC, 123 A.3d 272, 286 (N.J. Super. Ct. App Div.
2015) (citations omitted). Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., only refers to a person’s “sex”:
employers are prohibited from discriminating “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.” 42 U.S.C. § 2000e–
and discrimination – much of it directed at her sex - because of
her whistleblowing activity.
On February 28, 2014, Plaintiff’s employment with Defendant
Salem County changed from a corrections officer to a Salem County
Sheriff’s Officer Recruit.
She left her position at SCCF and
began attending the Gloucester County Police Academy at Rowan
College at Gloucester County (“RCGC”).
During her training,
Plaintiff claims that she was discriminated against because of her
disabilities, including high blood pressure, asthma, eczema, and
hyperhidrosis (excessive sweating) on her hands.
that she was harassed, and ultimately forced to resign from the
police academy on June 11, 2014, because of her disabilities and
need for certain accommodations, including being permitted to wear
a face mask in cold weather, use an inhaler, and wear gloves
during certain training exercises.
Plaintiff contends that RCGC’s
reason for forcing her to resign in lieu of dismissal – that she
lied about her completion of a physical training exercise – was a
pretext manufactured by the instructors to cover-up the
discrimination she suffered based on her disabilities and required
Upon her dismissal from the police academy, she could not
maintain a position at the Sheriff’s Office because she did not
complete her training at the police academy.
that she be permitted to return to SCCF as a corrections officer,
but SCCF denied her request, stating that because her failure to
complete the police academy was not due to a medical reason, she
was not permitted to return.
On July 10, 2014, Plaintiff filed a Charge of Discrimination
with the United States Equal Employment Opportunity Commission
On May 12, 2015, the EEOC issued Plaintiff a Notice of
Right to Sue.
On June 9, 2015, Plaintiff filed a multi-count complaint
against Salem County and RCGC, alleging that they violated the New
Jersey Law Against Discrimination (NJLAD), N.J.S.A. 10:5-1 et
seq., the Americans with Disabilities Act (ADA), 42 U.S.C. § 12111
et seq., Title VII of the Civil Rights Act of 1964, 42 U.S.C. §
2000e et seq., and the New Jersey Contentious Employee Protection
Act (CEPA), N.J.S.A. 34:19-1 et seq., by discriminating against
her and retaliating against her due to her gender, disabilities,
and whistleblowing activity.
Defendants have moved for summary
judgment in their favor on all counts.
Plaintiff has opposed
Subject matter jurisdiction
The Court has subject matter jurisdiction pursuant to 28
U.S.C. § 1331 because Plaintiff brings claims arising under
The Court has supplemental jurisdiction over
Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367.
Summary judgment standard
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
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, 248
A fact is “material” if, under the governing substantive
law, a dispute about the fact might affect the outcome of the
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).
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
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.
Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).
Plaintiff’s claims against Salem County
Plaintiff’s claims against Salem County consist of a claim
for hostile work environment in violation of the Title VII and the
NJLAD, and a claim for wrongful termination in violation of Title
VII, the NJLAD, and CEPA. 2
Salem County has moved for summary
judgment, arguing that it is entitled to judgment in its favor
because Plaintiff’s evidence cannot support her claims of
Salem County also argues that Plaintiff’s CEPA
claim is not viable because it is outside the scope of her EEOC
charge since her charge does not discuss her reporting the illegal
drug activity and any resulting repercussions. 3
Plaintiff has relinquished her claims against Salem County for
violations of the NJLAD and ADA based on her disabilities. Salem
County is therefore entitled to judgment in their favor on those
Salem County also argues that Plaintiff’s CEPA claim is otherwise
untimely and barred by CEPA’s statute of limitations because her
Addressing Salem County’s argument about Plaintiff’s CEPA
claim first, unlike Plaintiff’s claims for violations of federal
employment discrimination laws, Plaintiff is not required to
exhaust any administrative remedies prior to bringing a CEPA
See Barzanty v. Verizon Pennsylvania, Inc., 361 F. App'x
411, 413 (3d Cir. 2001) (citing Burgh v. Borough Council, 251 F.3d
465, 470 (3d Cir. 2001)) (explaining that a plaintiff bringing an
employment discrimination claim under Title VII must comply with
complaint was filed more than a year after her departure from
SCCF. The basis for this argument is that Plaintiff served as a
corrections officer from November 8, 2010 until February 28, 2014,
at which time she voluntarily separated from employment to take a
position at the Sheriff’s Office. Because Plaintiff did not file
her suit against Salem County until June 9, 2015, Plaintiff’s CEPA
claim is outside of CEPA’s one-year statute of limitations.
As Plaintiff points out, even though Plaintiff changed positions
from a corrections officer to a Sheriff’s Office recruit, she
remained employed by Salem County the entire time. Plaintiff
argues that her claim is based on her forced resignation from the
police academy and Salem County’s refusal to allow her to continue
employment with the County at SCCF. Thus, Plaintiff argues that
the final adverse employment action arising from her
whistleblowing activity occurred on June 12, 2014, which makes her
June 9, 2015 complaint against Salem County timely.
Other than SCCF employee recollections and basic human resources
paperwork, Salem County does not offer evidence to refute
Plaintiff’s contention that she remained a Salem County employee
from November 2010 through June 12, 2014, even though she switched
positions within two different County organizations. Indeed,
Plaintiff has provided the Personnel Action Form prepared by Salem
County to document Plaintiff’s termination, which states that her
dates of employment were from November 8, 2010 to June 12, 2014,
with no break in service. (See Docket No. 73-2 at 704-05.) At
most, this is a disputed issue that must be submitted to the jury
for resolution. It is not a basis to dismiss Plaintiff’s CEPA
the procedural requirements set forth in 42 U.S.C. § 2000e–5, and
before filing a lawsuit, a plaintiff must exhaust her
administrative remedies by filing a timely discrimination charge
with the EEOC); Lippman v. Ethicon, Inc., 119 A.3d 215, 230, 222
N.J. 362, 388 (N.J. 2015) (holding that CEPA does not contain an
exhaustion requirement); Skoorka v. Kean University, 2015 WL
3533878, at *20 (D.N.J. 2015) (explaining a CEPA retaliation claim
may be based on an employee's report of virtually any unlawful
practice, and a Title VII retaliation claim must be based on an
employee’s report of a violation of Title VII itself).
the extent that Plaintiff’s EEOC charge does not mention her
reporting the illegal drug activity, such omission does not
preclude her claim under New Jersey’s CEPA law.
With regard to Plaintiff’s retaliation claim premised on
Salem County’s alleged violation of Title VII, 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.”
D'Ambrosio v. Cresthaven Nursing & Rehabilitation Center, 2016 WL
5329592, at *6 (D.N.J. 2016) (citing Waiters v. Parsons, 729 F.2d
233, 237 (3d Cir. 1984) (per curiam); 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.”)) (other citations omitted).
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.
Id. (citing 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 disability discrimination cannot fairly encompass a
subsequent Title VII claim of gender discrimination)).
Here, Plaintiff’s charge filed against Salem County mainly
relates to her transfer to the Sheriff’s Office on February 24,
2014 and the alleged discrimination she suffered by the Sheriff’s
Office during her time at the police academy.
(Docket No. 64-5.)
The only reference to her time as a corrections officer at SCCF is
one sentence: “I had previously worked for Salem County
Correctional Facility, and I complained of sex discrimination
Plaintiff could maintain a Title VII claim against Salem
County regarding her whistleblowing activity if her EEOC charge
could be fairly read to claim that Salem County discriminated and
retaliated against her in violation of Title VII arising out of
her reporting the illegal drug activity.
however, gives no indicated of what gave rise to the alleged sex
discrimination at SCCF, and the “core grievance” of her charge
concerns what occurred upon her transfer to the Sheriff’s Office.
Thus, Plaintiff cannot maintain a Title VII retaliation claim
against Salem County specifically concerning her whistleblowing
This discrete carve out of Plaintiff’s claims against Salem
County does not affect substantively the analysis of the remainder
of Plaintiff’s claims against Salem County.
Plaintiff argues that
the existence of disputed material facts permits her to proceed
with her claims against Salem County under CEPA for retaliation
for her whistleblowing, and proceed with her claims against Salem
County under the NJLAD and Title VII for sex discrimination and
harassment while she served as a corrections officer and at the
Sheriff’s Office. 4
The Court agrees.
The legal standards for Plaintiff’s claims serve as a roadmap
to assess the evidence Plaintiff presents to support those claims.
A plaintiff may not maintain a claim for retaliation for a CEPA
protected activity in tandem with a retaliation claim under the
NJLAD. See N.J.S.A. 34:19–8 (providing that when a plaintiff
files an action under CEPA, other state law retaliation claims are
waived). Plaintiff recognizes CEPA’s waiver position, and
clarifies that she is not asserting a claim for retaliation under
To establish a prima facie CEPA action, a plaintiff must
demonstrate that: (1) he or she reasonably believed that his or
her employer's conduct was violating either a law, rule, or
regulation promulgated pursuant to law, or a clear mandate of
public policy; (2) he or she performed a “whistle-blowing”
activity described in N.J.S.A. 34:19–3 [relevant here,
“[d]iscloses . . .
to a supervisor . . . an activity, policy or
practice of the employer,” N.J.S.A. 34:19–3(a)]; (3) an adverse
employment action was taken against him or her; and (4) a causal
connection exists between the whistle-blowing activity and the
adverse employment action.
Lippman v. Ethicon, Inc., 119 A.3d
215, 226 (N.J. 2015) (citations omitted).
Under Title VII, it is unlawful for an employer “to
discriminate against any individual with respect to his
compensation, terms, conditions, or privileges of employment,
because of such individual's
. . .
42 U.S.C. § 2000e-
Under the NJLAD, it is unlawful “[f]or an employer,
because of the . . . sex . . . of any individual . . . to
discriminate against such individual in compensation or in terms,
conditions or privileges of employment.”
Title VII and the NJLAD also prohibit sexual harassment – creating
a hostile work environment - because it is a form of sex
Moody v. Atlantic City Board of Education, 870
F.3d 206 (3d Cir. 2017) (citing Meritor Sav. Bank, FSB v. Vinson,
477 U.S. 57, 65-66 (1986); Lehmann v. Toys ‘R’ Us, Inc., 626 A.2d
445, 452 (N.J. 1993) (explaining that the New Jersey Supreme Court
“has frequently looked to federal precedent governing Title VII”
to interpret and apply the NJLAD)).
To succeed on a hostile work environment claim against the
employer, a plaintiff must establish that: 1) the employee
suffered intentional discrimination because of her sex, 2) the
discrimination was severe or pervasive, 3) the discrimination
detrimentally affected the plaintiff, 4) the discrimination would
detrimentally affect a reasonable person in like circumstances,
and 5) the existence of respondeat superior liability.
To establish a prima facie case of sex
discrimination under either the federal or state statute, a
plaintiff must first establish that: (1) she is a member of a
protected class; (2) she was qualified for the position in
question; (3) she suffered an adverse employment action; and (4)
that adverse employment action gives rise to an inference of
Tourtellotte v. Eli Lilly and Co., 636
F. App’x 831, 842 (3d Cir. 2016) (citing Jones v. Sch. Dist. of
Phila., 198 F.3d 403, 410–11 (3d Cir. 1999)) (other citations
A plaintiff can prove her discrimination claims through
direct or circumstantial evidence.
Under the framework of
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), the
plaintiff must first establish a prima facie case of
discrimination, which creates an inference of unlawful
Willis v. UPMC Children's Hosp. of Pittsburgh,
808 F.3d 638, 643–45 (3d Cir. 2015).
Once the plaintiff has
successfully established a prima facie case creating an inference
of discrimination, the burden shifts to the employer who must
articulate a legitimate nondiscriminatory reason for the adverse
Id. (citations omitted).
This second step of
McDonnell Douglas does not require that the employer prove that
the articulated legitimate, nondiscriminatory reason was the
actual reason for the adverse employment action, but instead the
employer must provide evidence that will allow the factfinder to
determine that the decision was made for nondiscriminatory
Id. (citations omitted).
If the employer satisfies this second step, the burden shifts
back once more to the plaintiff to show, by a preponderance of the
evidence, that the employer's proffered legitimate,
nondiscriminatory reason was pretextual – that not only was the
employer's proffered reason false, but the real reason was
This can be done in two ways:
(1) by pointing to evidence that would allow a factfinder to
disbelieve the employer's reason for the adverse employment action
by showing such weaknesses, implausibilities, inconsistencies,
incoherencies, or contradictions in the employer's proffered
legitimate reasons, or (2) by pointing to evidence that would
allow a factfinder to believe that an invidious discriminatory
reason was more likely than not a motivating or determinative
cause of the employer's action, which can be shown by (1) the
defendant having previously discriminated against the plaintiff;
(2) the defendant having discriminated against others within the
plaintiff's protected class; or (3) the defendant has treated
similarly situated, substantially younger individuals more
Id. (citations and quotations omitted).
In contrast to circumstantial evidence, direct evidence of
discrimination is so revealing of discriminatory animus that it is
unnecessary to rely on the McDonnell Douglas burden-shifting
Anderson v. Wachovia Mortgage Corp., 621 F.3d 261, 269
(3d Cir. 2010).
Once a plaintiff produces such evidence, the
defendant has the burden of producing evidence to show that it
would have made the same decision in the absence of discriminatory
Id. (citation omitted).
To qualify as direct evidence,
the evidence must be such that it demonstrates that the decisionmakers placed substantial negative reliance on an illegitimate
criterion in reaching their decision.
Direct evidence must satisfy two requirements:
evidence must be strong enough to permit the factfinder to infer
that a discriminatory attitude was more likely than not a
motivating factor in the defendant's decision; and (2) the
evidence must be connected to the decision being challenged by the
Id. (citations omitted).
Moreover, any statements
made by a defendant’s employees must be made at a time proximate
to the challenged decision and by a person closely linked to that
Id. (citation omitted).
hurdle for plaintiffs.
These requirements are a high
Id. (citation omitted).
Plaintiff presents dozens of incidents she claims support her
CEPA, discrimination and harassment claims:
Plaintiff testified that on December 12, 2012, Captain
Lape called her into his office, berated her for writing
the report about drugs being brought into the facility
and threatened her future career prospects in law
enforcement: “Captain Lape pulled me into his office…
and told me that I was harassing Officer Kent. And also,
I was – for me reporting officers in the facility, I
would never become a State Trooper and I could be
written up for reporting officers. I would never become
a State Trooper, it would be filed downtown and so on.”
Captain Lape moved Plaintiff to A shift in retaliation
for her reporting illegal activities of Officer Kent
o Captain Lape was angry with Plaintiff for reporting
Officer Kent since he berated Plaintiff for doing
so and threatened her future career prospects.
o Captain Lape testified that he moved Plaintiff to A
shift because Officer Kent had taken a leave of
absence to go to a drug rehabilitation program and
he consequently needed a female officer on A shift
and Plaintiff had the lowest seniority of all other
females, but this was not true, as Officer Kent did
not leave to go to rehab until sometime after
January 23, 2013, the shift was not otherwise
short-staffed with females, and Plaintiff was not
the lowest female officer in seniority, even as of
7 months earlier in April 2012.
o Even assuming that an additional female was needed
on A shift, Captain Lape admitted that his normal
procedure for filling that shift would have been to
post it so any officers interested could take it,
but Captain Lape further admitted that he did not
post the shift, nor did he ask any of the other
officers on B shift if they could move to A shift,
and since both A shift and B shift worked 7am-7pm,
2 days on and 2 days off, for most employees it
would not make any real difference if they worked A
shift or B shift.
Almost immediately after she reported illegal activities
at the jail, Plaintiff found herself the subject of
o Superior officers joked about Plaintiff sleeping
with a superior officer and his wife (which was
o Officer Richard Pierce testified that “even after
this incident was documented, comments [insinuating
that Plaintiff was or would be having a sexual
relationship with Lieutenant Dilks] never stopped”
and continued throughout the remainder of her
o Officers made fun of Plaintiff because she suffered
from eczema or psoriasis, frequently “mak[ing]
insinuations about other parts of her body … about
personal areas of the body … her vagina.”
o Officers and supervisors also made comments about
Plaintiff’s sexual orientation, suggesting in a
derogatory fashion that she was a lesbian.
o Sergeant Templeton told Plaintiff she was going to
be very lonely at work and she should “go fuck
o Officer Pierce confirmed that both officers and
supervisors were involved in making such comments
and that: “This was, unfortunately, for
[Plaintiff], it was the general atmosphere,
o Negative comments about Plaintiff were made on a
o Officer Deborah Preston told Plaintiff that she was
trying to “hem [her] the fuck up” and threatened to
“punch [her] in the fucking face.” Plaintiff
testified that a few days after she reported
Officer Preston’s inappropriate language towards
her, she put her hand on her car door handle to
open it and found it covered in spit. Plaintiff
went immediately inside the facility and told
Deputy Warden Anthony Wright what had occurred.
Plaintiff testified that she and Wright viewed the
video of Officer Preston walking towards her car
which was parked in the opposite direction of the
entrance to the building. There was no reason for
Officer Preston to be walking towards Plaintiff’s
car instead of going in to work.
o Plaintiff described how Officer Preston’s threats
to beat her up were particularly disturbing in the
environment of the jail: “You’re already in an
environment where it’s unsafe. You’re in a
dangerous situation, so you spoke of earlier, that
a correctional facility is a very dangerous place
to work. And then you’re having officers that are
acting unprofessional in front of inmates and doing
all this inside of the facility, even outside of
the facility, which causes a hostile work
o Plaintiff also described how Lieutenant Mills,
Sergeant Templeton, and Officer Carr were permitted
to yell at her and belittle her in front of
inmates. Being treated this way by other officers,
including superior officers, put her personal
safety in danger at the jail: “So an inmate sees
you acting out in front of another officer and
thinks it’s ok, they’re going to act out and
potentially harm me or harm anybody else when they
see the response team acting this way. And the
response team is who responds to incidents… [I felt
unsafe because] I didn’t feel like they would
respond to different situations.”
o In May 2013, Officer Carr refused to stay in the
unit when Plaintiff strip searched an inmate,
violating jail protocol and putting her personal
safety at risk. Plaintiff radioed for an officer to
help her, but Officer Carr then radioed back to
cancel Plaintiff’s request. Sergeant Templeton
then came on the radio and taunted Plaintiff,
asking if she was “scared” and needed someone to
“protect” her. Plaintiff responded that a second
officer during strip searches was jail policy.
o Several corrections officers frequently insinuated
that Plaintiff was a “snitch”: Captain Dilks
testified that after Plaintiff reported Officer
Kent, Officers Carr, Welsh and Watt all told her
they did not like Plaintiff, and each of these
officers told Captain Dilks that Plaintiff was a
o Officer Welch made comments about Plaintiff to the
effect of: “write her the fuck up, get her in
trouble, she’s a troublemaker, she wants to follow
the rules and get people in trouble. We’re going to
get her in trouble.”
o Officer Michael Shannon was upset about Plaintiff’s
protected activity. He told Plaintiff that Officer
Kent would be fired and would then be unable to
support her family.
o Plaintiff testified that the very day she was
transferred to the Sheriff’s Department,
Undersheriff Warren Mabey called her a
“troublemaker” at the jail. Sheriff’s Officer
Sergeant Sean Phillips also told Plaintiff that the
Sheriff’s Office considered her to be a
o Both Captain Lape and Deputy Warden Wright
testified that Plaintiff was good at her job as a
Salem County Corrections Officer and never received
any discipline in that position. Plaintiff’s
performance evaluation for the period December 2012
to December 2013 rated her as “exceeds
expectations” or “meets expectations” in every
category. Contradicting the testimony of Captain
Lape and Deputy Warden Wright, as well as
Plaintiff’s documented excellent performance
evaluation, Warden Skradzinski testified he
concluded that Plaintiff was not a good corrections
officer because she “interrogated inmates more so
than attending to the inmate needs of the unit.”
But when pressed, Skradzinski could not recall any
specifics of these purported interrogations other
than the incident with Officer Kent. He could not
recall receiving any reports of these purported
interrogations and no one else told him that she
was doing these purported interrogations.
Despite widespread knowledge by Human Resources, the
warden, and the deputy warden that Plaintiff was being
harassed, no one was ever disciplined in connection
with the harassment. Instead, two of the main culprits
Undersheriff Mabey called Plaintiff a “troublemaker”
on her first day, and Mabey was also the Salem County
employee directly responsible for ensuring that
Sheriff Miller would not allow Plaintiff to return to
employment as Salem County. He told Sheriff Miller
that Plaintiff had an “integrity issue,” but admitted
that he had no clear understanding of what the issue
was, had never asked the academy to explain the issue,
had never requested or reviewed any documents or
evidence and had not even asked Plaintiff for her side
of the story.
Other similarly situated Officers who left SCCF to
pursue opportunities elsewhere were permitted to
return to SCCF when those opportunities did not work
out, but Plaintiff was not allowed to do so. For
example, in 2010, Officer Pierce resigned his position
as a Salem County Corrections Officer to accept a job
with the New Jersey State Department of Corrections.
That job was contingent upon him attending the State
Corrections academy. Officer Pierce did not complete
the academy because he could not complete the Physical
Training requirements. Salem County took him back as
a Corrections Officer after that.
Salem County was hiring corrections officers – and was
particularly in need of female officers – when it
refused to allow Plaintiff to return to that position.
Warden Skardzinski and Sheriff Miller confirmed that
there was “a huge turnover at the correctional
facility” and female officers – especially those
already PTC certified like Plaintiff – were always in
high demand. Initially, when Plaintiff requested to
return to her position as a corrections officer,
Sheriff Miller told her that he did not have a place
for her. But at deposition, Sheriff Miller admitted
that explanation was false and changed his story to
say that Plaintiff was not permitted back because of
“integrity issues” – the circumstances of which he
knew almost nothing.
Salem County treated Plaintiff differently than other
similarly situated officers who were proven to have
serious “integrity issues” by submitting forged
documents and lying to their superiors. Unlike
Plaintiff, both of those officers were permitted to
tell their sides of the story prior to being
disciplined. Also unlike Plaintiff, both of these
officers were allowed to keep their jobs even when it
was conclusively proven that they had integrity
issues. In June 2016, one corrections officer
submitted to Salem County a medical request note that
he be allowed to roll up his sleeves while working.
The note was from a physician who had never seen or
examined the officer. In fact, the physician is an
OB/GYN who only treats female patients. After
investigation, it was discovered that the doctor who
purportedly wrote the note had not written it at all.
The note had been forged by the officers’ girlfriend.
In January 2016, another corrections officer submitted
an intentionally falsified document purporting to be
an excuse from work note signed by the chief of a fire
company. When questioned about the falsified
document, the officer lied and said that it was
authentic. Salem County proved that the officer was
lying when the chief confirmed that he had not written
the note the officer submitted.
Based on the foregoing, Plaintiff argues that she has
established a prima facie case under CEPA and presented material
disputed facts for a jury to consider her claim, because the only
time period after her protected activity that Plaintiff was not
subjected to harassing comments and being called a “snitch” was
when she was absent from the job site at the academy.
argues that a jury is entitled to infer from the contrast between
Salem County’s favorable treatment of Plaintiff before she engaged
in protected activity and its harassing treatment of her after she
engaged in protected activity that there is a causal connection
between her protected activity and the adverse action taken
With regard to her sex discrimination and hostile work
environment claims, Plaintiff argues in addition to establishing a
prima facie case of retaliation, she has put forth ample evidence
that Salem County’s purported reason for terminating her
employment and not allowing her to return to work as a corrections
officer was a pretext for retaliating against her because of her
Plaintiff also argues that the evidence shows
that she suffered from sex-based harassment, was treated
differently than similarly situated males, and her so-called
integrity issue was a pretext for discrimination.
Salem County challenges Plaintiff’s proffered evidence by
providing competing testimony of the parties involved, arguing how
Plaintiff’s evidence should not be interpreted as discriminatory
or harassing, and contending that Plaintiff caused her own
difficulties because she has an abrasive personality.
All of Salem County’s arguments are not for this Court to
Plaintiff has readily met the elements of her prima facie
case for her CEPA, discrimination and hostile environment claims,
and Plaintiff has provided ample evidence to rebut Salem County’s
purported legitimate actions.
A jury must assess Salem County’s
evidence against Plaintiff’s evidence to determine who and what to
Accordingly, SCCF’s motion for summary judgment on these
claims must be denied.
Plaintiff’s claims against Rowan College at Gloucester
Plaintiff claims that Rowan College at Gloucester County
(RCGC) discriminated against her in violation of the NJLAD based
on her disabilities. 5
Disability discrimination claims under the
NJLAD are analyzed under the same framework as the ADA.
v. Buckeye Pipe Line Services Co., 205 F. Supp. 3d 606, 614
(D.N.J. 2016) (citing Joseph v. New Jersey Transit Rail Operations
Inc., 586 Fed. Appx. 890, 892 (3d Cir. 2014) (citing Victor v.
State, 203 N.J. 383, 4 A.3d 126, 145 (2010)) (other citations
To state a prima facie cause of action for disability
discrimination, the employee must show the following: (1) the
employee was disabled; 6 (2) she is otherwise qualified to perform
the essential functions of the job, with or without reasonable
accommodations by the employer; and (3) she has suffered an
Plaintiff is no longer pursuing claims against RCGC under the ADA
or for its failure to make accommodations for her disability. She
has also abandoned her sex discrimination claims against RCGC.
The NJLAD refers to “handicap,” but defines handicap as a
disability. Foster v. National Gypsum Services Company, 2016 WL
4257772, at *4 n.5 (D.N.J. August 11, 2016) (citing Victor v.
State, 4 A.3d 126, 135 (N.J. 2010) (explaining that courts have
used the terms interchangeably).
otherwise adverse employment decision as a result of
Plaintiff claims that she was taunted and singled out because
of her requests for special accommodations and her availment of
Plaintiff claims that from the first day of
her training, the lead instructor, Rachel Baum, endeavored to push
her out of the police academy because of her disabilities.
Plaintiff claims that when she would not quit because of Baum’s
and other instructors’ harassment, and because she was passing her
physical fitness requirements, they manufactured a reason for her
forced resignation – that she lied she had completed 20 burpee 7
exercises when she had not.
RCGC argues that it provided Plaintiff with every
accommodation she requested, and that her disability
discrimination claim fails because Plaintiff cannot demonstrate
that her purported forced resignation was discrimination motivated
by her disabilities. 8
A burpee is another name for a squat thrust.
The NJLAD defines “disability” as physical disability, infirmity,
malformation or disfigurement which is caused by bodily injury . .
. which shall include, but not be limited to, . . . lack of
physical coordination, . . . resulting from anatomical . . .
physiological . . . conditions which prevents the normal exercise
of any bodily . . . functions or is demonstrable, medically . . .
by accepted clinical or laboratory diagnostic techniques. . . .”
N.J.S.A. 10:5-5(q). RCGC does not dispute that Plaintiff is
considered to have a disability under the NJLAD.
To support her disability discrimination claims, Plaintiff
points to the following:
As soon as Plaintiff began having problems with her blood
pressure, Lead Instructor Baum began making disparaging
comments to her. Lead Instructor Baum told Plaintiff that she
did not belong in the academy because of her blood pressure.
She further told Plaintiff “you’re not going to graduate this
academy. You know, early on, in March, when I first – you can
continue to do – I forget the exact wording that she said.
But basically along the lines of you’re not going to graduate
the academy as far as I’m concerned.” Lead Instructor Baum
began making these comments the week following Plaintiff’s
elevated blood pressure reading – before any physical fitness
assessments or academic tests were completed.
Plaintiff passed every physical fitness assessment she was
given, which were graded pass/fail. While Plaintiff was
slower than most of the class in running, she did push-ups
and sit-ups faster than half her class. Though Plaintiff was
sometimes slower than some of her classmates, she always
finished every required exercise. By May 13, 2014,
Plaintiff’s PT Assessment Score had improved dramatically
from 72.2 to 84.4, and Director Madden considered her to be
“doing good” in physical training.
The first request for an accommodation that Plaintiff made at
the beginning of the police academy was to have her inhaler
for her asthma placed in the medical bag that is taken to all
physical training. Despite purportedly accommodating
Plaintiff’s use of an asthma inhaler, Lead Instructor Baum
and Instructor Walker attempted to embarrass Plaintiff in
front of her class because she needed to use her asthma
inhaler after PT was over for the day. They repeatedly said
“everybody, let’s stop for O’Leary. She can’t breathe.”
After receiving medical documentation, the police academy
granted Plaintiff’s request to wear the mask every time she
needed it. Though they allowed Plaintiff to wear the mask,
academy instructors frequently chastised Plaintiff for
wearing her mask in the cold. Instructors Walker, Baum and
Hoffman repeatedly said “we have to wait for the Ninja” to
put her mask on.
Despite purportedly granting Plaintiff the accommodation of
wearing gloves, Academy instructors made fun of her for
wearing them. After Plaintiff provided a doctor’s note
stating that she needed to wear gloves due to hyperhidrosis,
she was told by Instructor Walker that she could not wear the
gloves during baton practice. Instructor Hayes asked her “do
you want to look like a friggin retard wearing gloves?” When
Plaintiff informed Instructor Walker that she could not
perform the baton exercise correctly because her hands were
sweaty, she was given demerits for being “disrespectful” to
him. After it became obvious that Plaintiff could not
properly maneuver the baton without gloves, Instructor Walker
called her out and embarrassed her in front of the entire
class, describing how sweaty her hands were.
Plaintiff was first disciplined on May 12, 2014, when she
received 2 demerits for unpreparedness for not having the
police academy Honor Code memorized after stating that she
had memorized it. Demerits were given to many members of
Plaintiff’s class for an assortment of minor issues.
Demerits given to Plaintiff for issues other than the
incident for which she was ultimately dismissed are
irrelevant in this case because Director Madden testified
that the only reason for her dismissal was that Baum accused
her of lying about the number of burpees she did on June 11,
RCGC contends that Lead Instructor Baum suspected that
Plaintiff was cheating on the number of exercises she was
completing and that she was not doing the full number of
exercises as directed because she ran her sprints at a slower
pace than other recruits in her class, yet finished her
exercises ahead of the other recruits. Plaintiff contends
that even though she was often slower than some of her
classmates in completing required exercises, she always
completed the required number. Plaintiff always maintained
and continues to maintain that she did 20 burpees. Baum says
she only did 16.
The recruits were instructed to do 20 burpees, and Lead
Instructor Baum and Instructor Hoffman stood directly behind
Plaintiff while she performed her burpees in order to observe
her and determine if in fact she was actually completing the
number of exercises as directed. It is undisputed that the
recruits were instructed to do 20 burpees. It is disputed
that Lead Instructor Hoffman was standing directly behind
Plaintiff. Plaintiff testified that she heard Instructor
Hoffman’s voice coming from off her left side while she was
doing the burpees. Instructor Hoffman, by contrast,
maintains that he was standing behind her. In any event,
Instructor Hoffman admits that he did not count the number of
burpees Plaintiff did.
RCGC contends that both Lead Instructor Baum and Instructor
Hoffman observed that Plaintiff performed her repetitions at
a slower pace than the rest of the class, and Instructor Baum
counted that Plaintiff had performed 16 repetitions, and then
stopped and stood up when the rest of the class stopped.
Plaintiff contends that she did 20 burpees, and Instructor
Hoffman admits that he did not count the number of burpees
Plaintiff did. Because various recruits in the 30+ member
class did the exercises at different paces, the class did not
all stand up at the same time, making it impossible for him
to know how many exercises Plaintiff had done simply by when
she stood up.
RCGC contends that Lead Instructor Baum interviewed recruits
R.P. and S.L. and asked if they had heard Plaintiff counting
her exercises out loud, which the recruits were required to
do. R.P. indicated that he had not heard Plaintiff and was
sent back to the gym. S.L. indicated that he had heard
Plaintiff counting and that he only heard her count to 15 and
then jump to 19 before she stood up as if she was done her
exercises. In response, Plaintiff contends that the reason
Baum chose R.P. and S.L. to put on either side of Plaintiff
is highly suspect. Director Madden testified that even though
R.P. passed his first PT assessment with a “pretty good
score” – higher than Plaintiff’s score – he suspended him and
threatened to kick him out of the academy anyway because his
score was not as high as Director Madden thought it should
be. Director Madden also suspended S.L. and threatened to
kick him out of the academy for lack of physical fitness even
though he too passed his first PT assessment with a higher
score than Plaintiff. These were the only two recruits that
Director Madden suspended for lack of physical fitness.
Plaintiff argues that R.P. and S.L. were the two recruits
most likely to be jealous of Plaintiff because they were held
to higher standards by the director of the academy. Plaintiff
also argues that S.L. did not hear Plaintiff counting because
Baum testified that because the 30+ recruits were all
counting out loud at the same time, there was no way to
distinguish Plaintiff’s voice from any of the other recruits,
and S.L. was himself counting his own repetitions out loud
while engaged in strenuous physical exercise. Plaintiff
further points out that S.L.’s verbal statement to Baum
differs from his written statement - he told Baum verbally
that he heard Plaintiff count to 15, then say 20 and stand
up, but S.L. wrote that Plaintiff said 19 and stood up.
RCGC argues that Lead Instructor Baum then ordered Plaintiff
to go to the showers, but Plaintiff disobeyed this direct
order and returned to the gym. Plaintiff testified that she
believed she was required to be in formation with her class
before going to the showers. Director Madden testified that
Plaintiff going to the gym instead of the showers had nothing
to do with her dismissal from the academy.
RCGC contends that Lead Instructor Baum reported the June 11,
2014 incident to Director Madden because lying is a violation
of the Honor Code. However, Plaintiff contends that prior to
Director Madden deciding to dismiss Plaintiff, Lead
Instructor Baum told Plaintiff in front of the entire class
that she was no longer a part of the class.
Director Madden then called the members of the Advisory Board
and convened a hearing for later that day. Plaintiff was not
permitted to call witnesses on her behalf, speak to other
potential witnesses, to be present for testimony against her
or to ask witnesses against her questions.
Despite making the decision to dismiss Plaintiff or allow her
to resign in lieu of termination, Director Madden never spoke
with her about the accusations against her and never gave her
an opportunity to tell him her side of the story.
Director Madden threatened Plaintiff that she would be “done
in law enforcement, period” if she did not resign.
RCGC contends that Plaintiff drafted a resignation letter and
gave it to Director Madden, but Plaintiff contends that
Director Madden dictated the contents of the letter to
Plaintiff and Je.D. were the only recruits that Baum said she
subjected to surreptitiously counting the number of exercises
they did. Director Madden gave Je.D. the choice to resign or
be dismissed, and Je.D. chose to be dismissed. Plaintiff
claims that this is relevant because Je.D. also suffered from
Non-disabled recruit G.P. was accused and found by the
Advisory Board to be lying. Unlike Plaintiff, he was not
dismissed or told to resign in lieu of dismissal. G.P. was
accused of sexually harassing female recruits and staff.
When confronted with the allegations against him, G.P. denied
them. The Advisory Board ultimately determined that G.P. was
lying and that he had, in fact, sexually harassed female
recruits and staff while at the academy. Despite the
Advisory Board’s determination that he was lying, G.P. was not
expelled or forced to resign from the academy.
Based on the foregoing, Plaintiff argues that Baum’s motive
for contending that Plaintiff failed to do the required number of
exercises is a material fact in dispute.
If the jury believes
Plaintiff’s testimony that she did always complete the number of
exercises, then the jury could conclude that Lead Instructor Baum
had no legitimate reason to suspect that Plaintiff was cheating on
the number of exercises she completed.
Coupled with the
discriminatory comments, and unequal discipline regarding physical
fitness and integrity issues, the lack of a legitimate reason for
Baum’s targeting of Plaintiff would permit the jury to infer a
In contrast, RCGC argues that even if the instructors’
taunting of Plaintiff for her disability accommodations were true,
Plaintiff lying as to the number of burpees she completed was a
legitimate reason for her dismissal from the police academy.
also argues that Plaintiff’s comparison to other recruits and
their discipline does not evidence discriminatory intent because
those recruits’ situations differed from Plaintiff’s.
further argues that one comparator, Je.D., was not actually
disabled but faced the same treatment as Plaintiff – dismissal for
lying about exercise completion – which evidences that RCGC
treated all recruits the same regardless of disability. 9
Plaintiff’s NJLAD disability discrimination claim follows the
McDonnell Douglas burden shifting analysis set forth above, and
the parties’ evidence presents the classic case where a jury must
decide which side to believe.
RCGC has articulated several
purported legitimate reasons for Plaintiff’s dismissal from the
police academy, 10 and Plaintiff has challenged those reasons
through her testimony, testimony of others, and other
circumstantial evidence, which, if believed by a jury, could
undermine RCGC’s reasons for termination and reveal discriminatory
The Court cannot make that determination because the
outcome depends in large part on weighing the credibility of the
RCGC also contends that it is entitled to partial summary
judgment for claims regarding front-pay and reinstatement because
after Plaintiff was dismissed from the academy, they determined
that she plagiarized portions of her staff study report without
citations, and she would have been terminated for that infraction
even if she had not been terminated for lying on her exercises.
Plaintiff counters that there was no direction on how to complete
the staff study report, there was no requirement regarding
citations, and no other reports included such citations.
Plaintiff also argues that RCGC has not provided evidence that any
other recruit’s staff study report has been scrutinized for
plagiarism, or that any other recruit was terminated because of
it. These positions present a typical disputed issue of material
fact that a jury must assess.
RCGC does not challenge that Plaintiff has met her prima facie
case for disability discrimination, which is a relatively easy
burden to meet. See Scheidemantle v. Slippery Rock University
State System of Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006)
(“[T]there is a low bar for establishing a prima facie case of
employment discrimination.” (citations omitted).).
parties and witnesses.
Consequently, RCGC is not entitled to
summary judgment on Plaintiff’s disability discrimination claims
under the NJLAD.
Whether Plaintiff was subjected to retaliation for reporting
illegal activity or suffered discrimination because of her sex at
SCCF, and whether Plaintiff was dismissed from RCGC because of her
disability, instead of legitimate non-discriminatory or
retaliatory reasons for those actions, is for a jury to determine.
Accordingly, Defendants’ motions for summary judgment on the
claims in Plaintiff’s complaint that encompass those issues must
Defendants are entitled to summary judgment on the
claims that Plaintiff has determined to no longer pursue, as well
as for Plaintiff’s retaliation claim under Title VII against Salem
An appropriate Order will be entered.
Date: October 12, 2017
At Camden, New Jersey
s/ Noel L. Hillman
NOEL L. HILLMAN, U.S.D.J.
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