YEAGER v. COVENANT SECURITY SERVICES, LTD.
OPINION. Signed by Judge Renee Marie Bumb on 6/13/2017. (tf, )
[Docket No. 24]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
DAVID J. YEAGER,
Civil No. 15-6012 (RMB/AMD)
COVENANT SECURITY SERVICES,
David F. McComb, Esq.
Zachary Adam Silverstein, Esq.
Zarwin Baum DeVito Kaplan Schaer & Toddy PC
1818 Market Street, 13th Floor
Philadelphia, PA 19103
Attorneys for Plaintiff David J. Yeager
William M. Tambussi, Esq.
Michael J. Watson, Esq.
Brown & Connery, LLP
360 Hadden Avenue
P.O. Box 539
Westmont, NJ 08108
Attorneys for Defendant Covenant Security Services, Ltd.
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Summary Judgment [Docket No. 24] by Defendant Covenant Security
Services, Ltd. (“Covenant” or the “Defendant”), seeking the
dismissal of the above-captioned matter by Plaintiff David J.
Yeager (“Yeager” or the “Plaintiff”) in its entirety.
considered the parties’ submissions and for the reasons set
forth below, Defendant’s Motion for Summary Judgment is granted,
in part, and denied, in part.
FACTUAL AND PROCEDURAL BACKGROUND1
This dispute stems from Defendant’s decision to terminate
Plaintiff’s employment on October 31, 2014.
that he was terminated unlawfully and in retaliation for his
support of a former co-worker’s unlawful termination lawsuit
Covenant provides security and protection services to
clients at facilities across the country.
Def. SOMF ¶ 1.
Plaintiff was hired by Covenant as a security officer in the
summer of 2011.
Id. ¶ 10.
On August 1, 2011, Plaintiff signed
a Handbook Acknowledgement Form, acknowledging that he had
received Covenant’s Employee Handbook and that he would become
familiar with the policies set forth in the Handbook.
In his Response to Defendant’s Statement of Undisputed
Facts, Plaintiff repeatedly states “Denied as the document
speaks for itself.” See, e.g., Pl. Resp. to Def. SOMF ¶¶ 4-7,
14-30, 38, 42, 131-33 [Docket No. 26-2]. Plaintiff, however,
does not dispute that the referenced documents do, in fact,
support Defendant’s statements. The Court finds that these
facts have not been genuinely disputed and, therefore, will be
deemed undisputed for purposes of resolving the instant motion.
See D.N.J. L. Civ. R. 56.1 (“any material fact not disputed
shall be deemed undisputed for purposes of the summary judgment
motion.”). To the extent that certain facts are not genuinely
disputed, the Court relies upon Defendant’s Statement of
Material Facts Not in Dispute (“Def. SOMF”) [Docket No. 24-2].
The Court relies upon the record for genuinely disputed facts.
Ex. 4 [Docket No. 24-4].
On October 15, 2011, Plaintiff was
promoted to the position of site manager.
Def. Ex. 6 [Docket
On November 22, 2011, Plaintiff underwent
supervisory training, which included training regarding
Covenant’s sexual harassment policies and procedures.
Covenant’s Employee Handbook expressly prohibits harassment
of any kind, including sexual harassment.
Id. ¶ 16.
Specifically, the Employee Handbook provides that “[a]ny
employee who believes that he or she has been a victim of some
form of sexual or other harassment, or other inappropriate
conduct or behavior, should report the incident immediately to
his or her supervisor, the Human Resources Manager or any member
of senior management with whom the individual feels
Def. Ex. 2 at DEF 37 [Docket No. 24-3] (emphasis
It further states: “If reported to a supervisor,
the supervisor fills out a ‘Preliminary Complaint Form’, having
the employee briefly describe what incident has occurred.
supervisor does not investigate the complaint – it must be
immediately forwarded to the Human Resources Manager.”
(emphasis in original).
Additionally, the Handbook states that
“[r]eports of harassment must be reported in a timely manner to
ensure a quick and effective investigation of the incident.
will be extremely difficult to investigate harassment claims
made long after the alleged incident occurred.”
Id. at DEF 38.
Covenant also promulgates a “Harassment Free Workplace”
Policy, which applies to all Covenant employees.
DEF 65 [Docket No. 24-6].
Def. Ex. 11 at
The Policy provides, in relevant
All supervisors and other members of management are held
accountable for the effective administration of this
Policy. . . . If a supervisor or other member of
management is advised of any alleged violation of this
Policy, . . . he/she must immediately report the matter
to the Human Resources Department or to a senior member
of management so that an appropriate investigation can
be initiated. Failure to do so will result in corrective
action up to and including termination.
Id. at DEF 68.
The Policy also directs supervisors to “report
harassment claims to the HR Department for investigation as soon
as possible, and in most instances, no later than 24-hours of
Id. at DEF 69.
Plaintiff was responsible for
being generally aware of Covenant’s sexual harassment reporting
2015 Pl. Dep. Tr. 75:2-4, Def. Ex. 14 [Docket
Likewise, Plaintiff knew that he was supposed to
report complaints of sexual harassment to Human Resources.
On or about January 10, 2013, Abigail Geoffney, a Covenant
security officer at the time, reported sexual harassment by her
supervisor, Norman Reed, to Plaintiff.
Def. SOMF ¶¶ 35-36.
Plaintiff documented Geoffney’s complaints in a Preliminary
Description of Incident Form, which he emailed to Covenant’s
Human Resources Department the same day.
Id. ¶ 37.
receipt of the complaint, Covenant’s Human Resources Specialist,
Ashley Dennis, began an investigation into the allegations.
Ultimately, after investigating, Covenant determined that
it was unable to substantiate Geoffney’s allegations.
Id. ¶ 46.
During the relevant time period, Plaintiff supervised
Meegan Wadleigh, a security officer employed by Wadleigh.
Ex. 25 ¶ 8 [Docket No. 24-8].
On May 8, 2013, Wadleigh reported
to Plaintiff that she had been sexually harassed by another
Covenant employee, Scott Tucker.
Def. SOMF ¶ 52.
documented and signed Wadleigh’s complaint, which also included
a description of the incident by Wadleigh.
Id. ¶ 53.
did not immediately send the May 8, 2013 report to Covenant’s
Human Resources Department, and instead noted: “no witness need
Def. Ex. 27 [Docket No. 24-8]; Def. Ex. 25 ¶ 2;
Def. Ex. 28 [Docket No. 24-8]; 2015 Pl. Dep. Tr. 51:18-25, Def.
On May 9, 2013, Wadleigh reported a second instance of
sexual harassment by Tucker to Plaintiff.
the complaint, which included Wadleigh’s description of the
incident, and signed it the same day.
Def. SOMF ¶¶ 56-57.
Plaintiff did not immediately send the May 9, 2013 report to
Def. Ex. 25 ¶ 2; Def. Ex. 28; 2015 Pl. Dep.
Tr. 79:19-80:9, Def. Ex. 14.
Once again, he wrote “need proof
or witness” under “Action to be taken”.
Def. Ex. 31 [Docket
Wadleigh reported a third incident of sexual harassment by
Tucker to Plaintiff on May 31, 2013.
Wadleigh’s description of the alleged harassment and signed the
complaint on the same day.
Def. SOMF ¶¶ 60-61.
to be taken”, Plaintiff wrote: “No witness / need someone
Goffney [sic] complaint went nowhere.
[Docket No. 24-8].
Def. Ex. 32
Plaintiff did not immediately report
Wadleigh’s May 31, 2013 complaint to Human Resources.
Ex. 25 ¶ 2; Def. Ex. 28; 2015 Pl. Dep. Tr. 86:2-5, Def. Ex. 14.
On June 14, 2013, Wadleigh reported a fourth incident of
sexual harassment by Tucker to Plaintiff.
again, documented the complaint, including Wadleigh’s
description of the incident, and signed the form.
Under “Action to be taken”, Plaintiff wrote: “will
set up  camera in command center.
against his, problem.”
But only have her word
Def. Ex. 33 [Docket No. 24-8].
Plaintiff did not immediately report this complaint to Human
Resources, as required by Covenant’s reporting policies.
Ex. 25 ¶ 2; Def. Ex. 28; 2016 Pl. Dep. Tr. 136:11-137:5, Def.
Ex. 5 [Docket No. 24-5].
Plaintiff was the only Covenant employee who witnessed
Wadleigh complete her four sexual harassment complaints.
SOMF ¶ 74.
Wadleigh did not report Tucker’s alleged sexual
harassment to anyone at Covenant, except Plaintiff, during her
employment with Covenant.
Id. ¶ 76.
Plaintiff admits that he
did not notify anyone at Covenant of Wadleigh’s sexual
harassment complaints prior to June 20, 2013.
Id. ¶ 83.
Plaintiff testified that he did not immediately report
Wadleigh’s complaints because, in his experience, Covenant did
not take sexual harassment complaints seriously unless there was
2015 Pl. Dep. Tr. 51:18-25, 88:13-18,
Def. Ex. 14.
On or about June 25, 2013, Ben Goehring, an Operation
Specialist at Covenant, called Plaintiff to inform him that
Wadleigh was required to report to a meeting on June 27, 2013.
During the call, Plaintiff told Goehring that Wadleigh “had
complaints of her own.”
Id. ¶ 88.
testified that he “told Ben Goehring that [Wadleigh] had her own
complaints, sexual and otherwise.”
Def. Ex. 14.
2015 Pl. Dep. Tr. 79:9-14,
Plaintiff told Wadleigh to bring her written
sexual harassment complaints with her to the meeting and to
raise her complaints there.
Wadleigh, however, did not inform Covenant of her sexual
harassment complaints during the June 27, 2013 meeting.
Wadleigh Dep. Tr. 81:4-82:6, Def. Ex. 24 [Docket No. 24-7].
During the meeting, Covenant terminated Wadleigh’s employment,
purportedly due to poor performance and behavioral issues.
Brown Dep. Tr. 50:4-12, 58:3-10, Def. Ex. 3 [Docket No. 24-4];
Dennis Dep. Tr. 50:12-52:1, 60:14-19, 74:7-13, Ex. 17 [Docket
Brown, Dennis, Goehring, and Dominic Ferrara,
Covenant’s Senior Vice-President of Operations, each testified
that they were not aware of Wadleigh’s sexual harassment
complaints at the time of her termination on June 27, 2013.
Def. SOMF ¶¶ 105-08.
That same day, Plaintiff witnessed Tucker make a racial
slur about an individual who was driving Wadleigh to her
Id. ¶ 115.
Plaintiff completed a Corrective Action
Form regarding Tucker’s conduct, which he immediately forwarded
to Human Resources.
Id. ¶ 117.
as a result of this incident.
Tucker was suspended that day
The following day, June 28, 2013,
Ferrara terminated Tucker’s employment.
Ferrara Dep. Tr. 34:22-
36:12, Def. Ex. 37 [Docket No. 24-9].
On July 1, 2013, at 1:07 p.m., Plaintiff sent an email to
Dennis, which read, in relevant part: “I documented that
Ms. Wadleigh had several complaints, sexual and other, she
wanted to report to me however I instructed her to make her
complaints in Philadelphia (HR) during her meeting with you and
Ben, since I was not involved with investigation.
Def. Ex. 34 [Docket No. 24-8].
To the email, he
attached a Corrective Action Form, dated June 27, 2013, which
stated: “Ms. Wadleigh asked to report her own complaints of
harassment both sexual and other.
She was instructed by me,
[due] to the fact she was meeting with Covenant SOS Goehring +
HR Dennis due to pending matter, on this date at 12pm.
advised I would document her request.”
Id.; see also Def.
Ex. 26 [Docket No. 24-8].
The same day, at 1:36 p.m., Plaintiff sent another email to
Dennis and Goehring, which read: “And if it was Tucker, you
would probably be quite interested in Ms. Wadleigh’s sexual
harassment complaint, but again I will leave that to you[r]
Def. Ex. 35 [Docket No. 24-8].
On July 10, 2013, Wadleigh sent a letter to Brown, in which
she claimed that Tucker had sexually harassed her during her
employment with Covenant and that she had “made Dave Yeager
aware of [the] complaints.”
Def. Ex. 39 [Docket No. 24-9].
Brown responded to Wadleigh on July 12, 2013, in relevant part:
Covenant has a zero tolerance policy for all forms of
harassment, sexual or otherwise. Covenant takes these
types of allegations very seriously . . . .
informed the company of your allegations regarding
Mr. Scott Tucker earlier, there would have been a prompt
and thorough investigation with the necessary action
taken, if warranted. Because you chose not to do so,
the company could take no action.
In this instance,
Mr. Tucker’s employment with Covenant had ended prior to
the receipt of your complaint.
Def. Ex. 40 [Docket No. 24-9].
Covenant, however, did not
institute any investigation into the substance of Wadleigh’s
letter upon receiving it.
2016 Brown Dep. Tr. 28:16-29:1, Def.
Ex. 10 [Docket No. 24-6].
Brown testified that Covenant did not
believe an investigation was necessary at the time given that
both Wadleigh and Tucker had previously been terminated.
22:9-25:14, 27:7-28:2, 28:16-31:5.
On October 3, 2013, Wadleigh’s attorney, David F. McComb,
sent Brown a letter, which specifically described the four
instances of sexual harassment that Wadleigh reported to Yeager
and the dates on which the alleged harassment occurred.
letter also stated that “Ms. Wadleigh immediately reported each
such occurrence to her supervisor, David Yeager.
Mr. Yeager documented each complaint, he informed Ms. Wadleigh
that she needed more evidence because, in Mr. Yeager’s
experience, Covenant did not take these types of complaints
Pl. Ex. A [Docket No. 26-3].
McComb further noted
that it was his “understanding that prior to the [June 27, 2013]
meeting, Mr. Yeager sent Mr. Goehring an email notifying him
that Ms. Wadleigh had complained about incidents of workplace
sexual harassment and asking Mr. Goehring whether he wanted to
review Mr. Yeager’s notes on the complaints.
We believe that
Mr. Yeager received no response to his inquiry.”
On December 11, 2013, Wadleigh filed a complaint against
Covenant for NJLAD retaliation and wrongful termination (the
Wadleigh Complaint, Def. Ex. 42 [Docket
In her Complaint, Wadleigh alleged that she had been
sexually harassed by Tucker on at least four occasions.
described the four instances in detail and alleged that “[she]
immediately reported each such occurrence of harassment to her
supervisor, David Yeager.
Although Mr. Yeager documented each
complaint, he informed Plaintiff that she needed more evidence
because, in Mr. Yeager’s experience, Covenant did not take these
types of complaints seriously.”
Id. ¶¶ 7-8.
that Covenant viewed the allegations in the Wadleigh Complaint
as “strictly allegations.”
2016 Brown Dep. Tr. 29:7-30:4, Def.
On August 15, 2014, in connection with Wadleigh’s lawsuit,
the parties appeared for a Court-ordered mediation (the
Def. SOMF ¶ 130.
During the Wadleigh
Mediation, but outside the presence of Covenant’s
representatives, Plaintiff spoke with the mediator over the
He informed the mediator that Wadleigh had reported
complaints about Tucker’s sexual harassment on multiple dates
during her employment with Covenant and that Plaintiff had
documented each of the complaints.
Id. ¶ 132.
then conveyed this information to Covenant’s representatives.
Id. ¶ 133.
After being informed by the mediator of Plaintiff’s
comments, Ferrara discussed the matter with Brown and Gregory
Iannuzzi, Covenant’s President, as he was concerned that
Plaintiff had possibly violated Covenant’s sexual harassment
Covenant directed its attorneys to meet
with Plaintiff to discuss the matter further.
Id. ¶ 136-37.
On October 2, 2014, two of Defendant’s attorneys met with
Plaintiff confirmed that Wadleigh had reported
sexual harassment by Tucker to him on four occasions during her
employment with Covenant.
Id. ¶¶ 139-40.
At the meeting,
Plaintiff also stated that he did not immediately report
Wadleigh’s complaint “because there were no third-party
witnesses and he did not have enough ‘evidence’ to satisfy
Def. Ex. 28.
According to counsel’s notes,
Plaintiff “conceded that he did not follow the policies as they
pertain to Wadleigh’s complaints about Tucker.”
testified that, during this meeting, Covenant’s attorneys asked
him if had “talk[ed] to anybody about this case.”
Tr. 139:15-20, Def. Ex. 5.
2016 Pl. Dep.
Then, Plaintiff testified, “[o]ne of
[Covenant’s] attorneys, . . . , red-headed kid, blows a gasket.
Tells me you don’t f---ing talk to anybody about this case.
If anybody contacts you about this case, tell them to go f--themselves.”
Counsel vigorously denies this.
See, e.g., Milavsky Dep. Tr. 15:13-17:20; 45:16-46:19, Def.
Ex. 30 [Docket No. 24-8].
Thereafter, on October 30, 2014, Covenant held an
additional meeting with Plaintiff.
Def. Ex. 29 [Docket
Plaintiff, once again, stated that Wadleigh had
reported complaints of sexual harassment to him on several
occasions, but that he had not informed anyone else at Covenant
because, in his experience, Covenant did not properly handle
sexual harassment complaints if there was no proof or
Plaintiff was terminated the following day,
October 31, 2014, for “violation of Covenant’s policy and
procedures [and] failure to report sexual harassment.”
Ex. 45 [Docket No. 24-10].
Based upon these facts, Plaintiff claims that he was
wrongfully terminated by Covenant due to his participation in
the Wadleigh Mediation and his willingness to assist Wadleigh in
her litigation against Covenant.
On or about July 2, 2015,
Plaintiff commenced the instant litigation in the Superior Court
of New Jersey, Law Division, Gloucester County, setting forth
the following counts: violation of the New Jersey Law Against
Discrimination, N.J.S.A. § 10:5-1, et seq. (“NJLAD”) (Count I);
and wrongful termination (Count II).
Removal Ex. A [Docket No. 1].
Complaint, Notice of
Defendant subsequently removed
the action to federal court on August 5, 2015 [Docket No. 1].
Defendant now moves for summary judgment and dismissal of
Plaintiff’s Complaint in its entirety.
SUMMARY JUDGMENT STANDARD
Summary judgment shall be granted if “the movant shows that
there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
Civ. P. 56(a).
A fact is “material” if it will “affect the
outcome of the suit under the governing law[.]”
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
A dispute is
“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”
In determining the existence of a genuine dispute of
material fact, a court’s role is not to weigh the evidence; all
reasonable “inferences, doubts, and issues of credibility should
be resolved against the moving party.”
Meyer v. Riegel Prods.
Corps., 720 F.2d 303, 307 n. 2 (3d Cir. 1983).
However, a mere
“scintilla of evidence,” without more, will not give rise to a
genuine dispute for trial.
Anderson, 477 U.S. at 252.
Moreover, a court need not adopt the version of facts asserted
by the nonmoving party if those facts are “utterly discredited
by the record [so] that no reasonable jury” could believe them.
Scott v. Harris, 550 U.S. 372, 380 (2007).
In the face of such
evidence, summary judgment is still appropriate “where the
record . . . could not lead a rational trier of fact to find for
the nonmoving party[.]”
Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).
The movant “always bears the initial responsibility of
informing the district court of the basis for its motion, and
identifying those portions of ‘the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with the affidavits, if any,’ which it believes demonstrate the
absence of a genuine issue of material fact.”
Celotex Corp. v.
Catrett, 477 U.S. 317, 323 (1986) (quoting Fed. R. Civ.
Then, “when a properly supported motion for summary
judgment [has been] made, the adverse party ‘must set forth
specific facts showing that there is a genuine issue for
Anderson, 477 U.S. at 250 (citing Fed. R. Civ.
In the face of a properly supported motion for
summary judgment, the nonmovant’s burden is rigorous: he “must
point to concrete evidence in the record”; mere allegations,
conclusions, conjecture, and speculation will not defeat summary
Orsatti v. New Jersey State Police, 71 F.3d 480, 484
(3d Cir. 1995); accord Jackson v. Danberg, 594 F.3d 210, 227 (3d
Cir. 2010) (citing Acumed LLC v. Advanced Surgical Servs., Inc.,
561 F.3d 199, 228 (3d Cir. 2009) (“[S]peculation and conjecture
may not defeat summary judgment.”)).
A. NJLAD Retaliation (Count I)
Under NJLAD, it is unlawful “[f]or any person to take
reprisals against any person because that person has opposed any
practices or acts forbidden under this act or because that
person has filed a complaint, testified or assisted in any
proceeding under this act or to coerce, intimidate, threaten or
interfere with any person in the exercise or enjoyment of, or on
account of that person having aided or encouraged any other
person in the exercise or enjoyment of, any right granted or
protected by this act.”
N.J.S.A. § 10:5-12(d).
Retaliation claims under NJLAD are analyzed under the
familiar burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792 (1973).
Michaels v. BJ’s
Wholesale Club, Inc., 604 F. App’x 180, 182 (3d Cir. 2015);
Battaglia v. United Parcel Servs., Inc., 214 N.J. 518, 546
(2013) (“All LAD claims are evaluated in accordance with the
United States Supreme Court’s burden-shifting mechanism.”).
Under this framework, a plaintiff must first establish a
prima facie case of retaliation.
Michaels, 604 F. App’x at 182
(citing Craig v. Suburban Cablevision, Inc., 140 N.J. 623,
Once the plaintiff has established a prima
facie case, “the burden then shifts to the employer to
articulate a legitimate, nonretaliatory or nondiscriminatory
reason for its actions.”
Tourtellotte v. Eli Lilly & Co., 636
F. App’x 831, 842 (3d Cir. 2016); accord Michaels, 604 F. App’x
at 182 (quoting Lichtenstein v. Univ. of Pittsburgh Med. Ctr.,
691 F.3d 294, 302 (3d Cir. 2012) (quoting McDonnell, 411 U.S. at
802)); Delli Santi v. CNA Ins. Companies, 88 F.3d 192, 199 (3d
“If the employer produces such a reason, the burden
then shifts back to the plaintiff to prove that the employer’s
nonretaliatory or nondiscriminatory explanation is merely a
pretext for the discrimination or retaliation.”
636 F. App’x at 842; accord Delli Santi, 88 F.3d at 199.
i. Prima Facie Case
To establish a prima facie case of retaliation under NJLAD,
a plaintiff must demonstrate that (1) he “engaged in a protected
activity that was known to the employer,” (2) “that [he] was
subjected to an adverse employment decision,” and (3) “that
there is a causal link between the activity and the adverse
LaPaz v. Barnabas Health Sys., 634 F. App’x 367, 369
(3d Cir. 2015) (citing Battaglia, 213 N.J. at 547).
At this juncture, the parties do not dispute that Plaintiff
engaged in a protected activity known to the employer when he
participated in the Wadleigh Mediation and indicated his
willingness to assist Wadleigh in her lawsuit against Covenant.
Additionally, as Plaintiff was terminated, the parties agree
that he was subjected to an adverse employment decision.
Defendant, however, contends that Plaintiff cannot establish a
prima facie case of retaliation under NJLAD as there is no
evidence in the record to establish a causal link between
Plaintiff’s participation in the Wadleigh Mediation and
“To demonstrate a prima facie case of causation, [a
plaintiff] must point to evidence sufficient to create an
inference that a causative link exists between [his] [protected
activity] and [his] termination.”
Lichtenstein, 691 F.3d at
“When the ‘temporal proximity’ between the protected
activity and adverse action is ‘unduly suggestive,’ this ‘is
sufficient standing alone to create an inference of causality
and defeat summary judgment.’
Where the temporal proximity is
not ‘unusually suggestive,’ [courts] ask whether ‘the proffered
evidence, looked at as a whole, may suffice to raise the
Id. (quoting LeBoon v. Lancaster Jewish Cmty. Ctr.
Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)).
Defendant contends that the passing of roughly eleven weeks
between Plaintiff’s participation in the Wadleigh Mediation on
August 15, 2014 and Plaintiff’s termination on October 31, 2014
is not unusually suggestive of retaliation.
The Court agrees.
Eleven weeks is far from unusually suggestive.
Escanio v. United Parcel Serv., 538 F. App’x 195, 200 (3d Cir.
2013) (finding that period of roughly three weeks between
protected activity and termination, without more, is not unduly
suggestive of retaliatory motive and cannot establish causal
link as required to support prima facie case of NJLAD
retaliation); Thomas v. Town of Hammonton, 351 F.3d 108, 114
(3d Cir. 2003) (finding that three week period between protected
activity and termination was insufficient, without other
evidence, to establish required causal link); Malloy v.
Intercall, Inc., 2010 WL 5441658, at *19 (D.N.J. Dec. 28, 2010)
(granting summary judgment on NJLAD retaliation claim where
plaintiff “pointed to no facts supporting her claim that she was
terminated in retaliation for her complaint other than merely
pointing to the fact that she complained and was terminated
approximately two weeks later.”).
The timing here--without
more--cannot establish causation.
Covenant also argues that there is no other evidence in the
record that, coupled with timing, would raise an inference of
Specifically, Defendant argues that Plaintiff’s
termination was in no way causally related to his participation
in the Wadleigh Mediation.
This argument is unpersuasive.
was precisely Plaintiff’s participation in the Wadleigh
Mediation that triggered the investigation into Plaintiff’s
conduct which led to his termination.
Considering the record as
a whole, the Court finds that there is sufficient evidence to
create an inference of causation between Plaintiff’s
participation in the Wadleigh Mediation and his termination.
is undisputed that, upon learning of Plaintiff’s participation
in the Wadleigh Mediation, including the comments made by
Plaintiff to the mediator, Covenant instituted an investigation
into Plaintiff’s actions regarding Wadleigh’s sexual harassment
Def. SOMF ¶¶ 132-33, 135-36.
This chain of events
is sufficient evidence from which a jury could reasonably infer
a causal relationship between Plaintiff’s participation in the
Wadleigh Mediation and his ultimate termination.
Moreover, as will be addressed in further detail below,
infra Section III.A.iii., there is evidence in the record from
which a jury could find that Defendant was on notice of the fact
that Wadleigh had reported sexual harassment to Plaintiff on
multiple occasions prior to her termination, and that Plaintiff
had documented the complaints, but not reported them to Human
Resources, and yet Covenant did not investigate Plaintiff’s
2015 Pl. Dep. Tr. 77:8-22, Def. Ex. 14; Def. Ex. 26;
Def. Ex. 34; Def. Ex. 35; Def. Ex. 39; Pl. Ex. A; Wadleigh
Complaint, Def. Ex. 42.
The record demonstrates that it was
only after Plaintiff spoke with the mediator that Covenant
decided to investigate whether Wadleigh had reported sexual
harassment to Plaintiff prior to her termination and whether
Plaintiff had violated any Covenant policies by not reporting
her complaints to Human Resources immediately.
The Court finds that a jury could also infer a
causal link between Plaintiff’s participation in the Wadleigh
Mediation and his termination based upon this additional
Finally, Plaintiff testified that, upon confirming that
Plaintiff had spoken to the mediator during the Wadleigh
Mediation, one of Covenant’s attorneys “[blew] a gasket” and,
infuriated, told Plaintiff--in expletive-ridden terms--that he
should not talk to anyone about Wadleigh’s lawsuit.
Dep. Tr. 139:13-25, Def. Ex. 5.
Counsel vehemently contests
that he ever made such a statement.
See, e.g., Milavsky Dep.
Tr. 15:13-17:20; 45:16-46:19, Def. Ex. 30.
a genuinely disputed material fact.
Nonetheless, this is
If the jury chooses to
credit Plaintiff’s version of the events, this is further
evidence from which the jury could infer causation.
Having considered the record in its totality, the Court
finds that there are clearly genuine disputes of material fact
as to whether Plaintiff has established causation, as required
to establish a prima facie case of retaliation under NJLAD.
a result, summary judgment due to Plaintiff’s purported failure
to establish a prima facie case of NJLAD retaliation is
inappropriate and must be denied.
Legitimate Non-Retaliatory Reason
Consistent with the McDonnell Douglas framework, the burden
of production now shifts to Defendant to articulate a
legitimate, non-retaliatory reason for terminating Plaintiff.
Tourtellotte, 636 F. App’x at 842.
Covenant contends that it
terminated Plaintiff’s employment on October 31, 2014 because he
failed to immediately report Wadleigh’s four complaints of
sexual harassment to Human Resources, as required by Covenant’s
sexual harassment reporting policies.
The decision to terminate
Plaintiff’s employment was the culmination of an investigation
conducted by Defendant’s attorneys.
The Court finds that
Defendant has clearly met its burden of articulating a
legitimate non-retaliatory reason for its decision to terminate
As Covenant has met its “minimal burden” of articulating a
legitimate, nonretaliatory reason for Plaintiff’s termination,
the burden shifts back to Plaintiff to establish that the
proffered reason is merely pretext for retaliation.
Tourtellotte, 636 F. App’x at 842.
To establish pretext at this stage and, therefore,
withstand summary judgment, Plaintiff “‘must point to some
evidence, direct or circumstantial, from which a factfinder
could reasonably either (1) disbelieve the employer’s
articulated legitimate reasons; or (2) believe that an invidious
discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.”
F. App’x at 182 (quoting Fuentes v. Perskie, 32 F.3d 759, 764
(3d Cir. 1994)); Simpson v. Kay Jewelers, Div. of Sterling,
Inc., 142 F.3d 639, 644 (3d Cir. 1998).
“It is not enough to
show that the employer was ‘wrong or mistaken’; rather, the
‘plaintiff must demonstrate such ‘weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reason for its action that a
reasonable factfinder could rationally find them unworthy of
credence, and hence infer that the employer did not act for [the
asserted] [non-retaliatory] reasons.’”
Ward v. Ingersoll-Rand
Co., --- F. App’x ----, 2017 WL 1526309, at *3 (3d Cir. Apr. 28,
2017) (quoting Ross v. Gilhuly, 755 F.3d 185, 194 n. 13 (3d Cir.
According to Defendant,
Plaintiff  ignores the dispositive point that . . .
Covenant only became aware of the following facts
through the Wadleigh Mediation and its subsequent
investigations: (a) Ms. Wadleigh made four (4) sexual
harassment complaints to Plaintiff; (b) Plaintiff
documented each complaint on its respective date;
(c) Plaintiff did not immediately report the complaint
to Covenant; and (d) Plaintiff never sent the documented
complaints or any pertinent information in the
complaints to Covenant.
Def. Reply Br. at 1 [Docket No. 27] (emphasis in original).
The Court agrees with Defendant that the question of when
Defendant learned of these facts is dispositive.
Yet there are
clearly genuine disputes of fact as to this dispositive issue,
thereby precluding summary judgment.
Plaintiff testified that, shortly before June 27, 2013, he
and Goehring spoke over the phone regarding Wadleigh and that
Plaintiff informed Goehring that Wadleigh had “complaints of her
own,” “sexual and otherwise.”
79:9-14, Def. Ex. 14.
2015 Pl. Dep. Tr. 77:8-22,
Then, on July 1, 2013, Plaintiff sent an
email to Dennis, which read, in relevant part: “I documented
that Ms. Wadleigh had several complaints, sexual and other, she
wanted to report to me however I instructed her to make her
complaints in Philadelphia (HR) during her meeting with you and
Ben, since I was not involved with investigation.
Def. Ex. 34.
He attached a Corrective Action Form,
dated June 27, 2013, which described, in relevant part:
“Ms. Wadleigh asked to report her own complaints of harassment
both sexual and other. . . . I advised I would document her
Arguably, Plaintiff violated Covenant’s policy
of reporting sexual harassment complaints within 24 hours of
receipt when he emailed Dennis this Corrective Action Form on
July 1, 2013, four days after the form was completed on June 27,
Yet Covenant did not investigate the sexual harassment
complaints or Plaintiff’s failure to abide by Covenant’s
reporting policies at that time, nor did it discipline Plaintiff
in any way.
Later the same day, Plaintiff sent another email to Dennis
and Goehring, which read: “And if it was Tucker, you would
probably be quite interested in Ms. Wadleigh’s sexual harassment
complaint, but again I will leave that to you[r] discretion.”
Def. Ex. 35.
There is no evidence in the record that Dennis or
Goehring ever responded to Yeager’s email, let alone that they
investigated his comments or disciplined him.
On July 10, 2013, Wadleigh sent a letter to Brown, in which
she claimed that she had been sexually harassed by Tucker and
had “made Dave Yeager aware of [the] complaints.”
Def. Ex. 39.
Upon receiving the letter, Covenant did not institute an
investigation into her allegations or whether Yeager had failed
to report her complaints, in violation of Covenant’s reporting
2016 Brown Dep. Tr. 28:16-29:1, Def. Ex. 10.
Wadleigh’s attorney, McComb, sent Brown a letter on October
3, 2013, which specifically described the four instances of
sexual harassment that Wadleigh reported to Plaintiff and the
dates on which the alleged harassment occurred.
the letter also stated:
Ms. Wadleigh immediately reported each such occurrence
to her supervisor, David Yeager. Although Mr. Yeager
documented each complaint, he informed Ms. Wadleigh that
she needed more evidence because, in Mr. Yeager’s
experience, Covenant did not take these types of
complaints seriously. . . . It is our understanding that
prior to the [June 27, 2013] meeting, Mr. Yeager sent
Mr. Goehring an email notifying him that Ms. Wadleigh
had complained about incidents of workplace sexual
harassment and asking Mr. Goehring whether he wanted to
review Mr. Yeager’s notes on the complaints. We believe
that Mr. Yeager received no response to his inquiry.
Pl. Ex. A.2
Finally, on December 11, 2013, Wadleigh filed a
complaint against Covenant for NJLAD retaliation and wrongful
In the Wadleigh Complaint, Wadleigh alleged that
she had been sexually harassed by Tucker on at least four
Her pleadings described the four instances in detail
and alleged, once again, that “[Wadleigh] immediately reported
each such occurrence of harassment to her supervisor, David
Covenant does not deny receiving this letter. Def. Resp.
to Pl. SOMF ¶ 16 [Docket No. 27-1]. It does, however, attack
the letter as “newly produced,” noting that it is not
Bates-stamped, was not produced in discovery in connection with
this litigation or Wadleigh’s litigation, and was not presented
to any of Defendant’s witnesses during their oppositions.
Federal Rule of Civil Procedure 37(c)(1) provides that a party
may not use information that was not provided as required by
Rule 26 to supply evidence on a motion, unless the failure was
substantially justified or is harmless. This letter was mailed
to and received by Brown, Covenant’s Vice-President of Human
Resources. Thus, the document should have been in Defendant’s
possession since it was received by its Vice-President of Human
Resources. There is no evidence that suggests that Brown did
not receive the letter shortly after it was mailed on October 3,
2013. Additionally, the Court sees no reason why Plaintiff
would have had this document in his possession, given that it
was sent by Wadleigh’s counsel to Brown long before counsel’s
firm began representing Plaintiff in this action. Even assuming
that Plaintiff was under an obligation to disclose this letter
in discovery, the Court finds that the failure to do so is
harmless as Defendant should have been aware of the letter as it
was already in Defendant’s possession.
Although Mr. Yeager documented each complaint, he
informed Plaintiff that she needed more evidence because, in
Mr. Yeager’s experience, Covenant did not take these types of
Wadleigh Complaint ¶¶ 7-8, Def. Ex. 42.
The allegations set forth in McComb’s letter and the
Wadleigh Complaint--if true--describe “egregious” violations of
Covenant’s sexual harassment report policies.
See Def. Br. at
11, 12, 22, 26-27 [Docket No. 24-1] describing Plaintiff’s
violations of Covenant’s reporting policies as “egregious”);
2016 Brown Dep. Tr. 30:5-31:5, Ex. 10 (admitting that the
allegations in the Wadleigh Complaint--if true--are “pretty
awful and not something you want going on at Covenant” and
should be “addressed right away and remedied appropriately”).
Yet, the record shows that Defendant did nothing.
not speak with Plaintiff in an attempt to determine the veracity
of these allegations.
Defendant did not investigate whether
Plaintiff had indeed egregiously violated Covenant’s policies.
Instead, Defendant viewed the claims as “strictly allegations”
and took no further action.
Based upon this evidence, a jury could reasonably infer
that Defendant was on notice that Plaintiff may have violated
its sexual harassment reporting policies far earlier than August
Construing all inferences in favor of the nonmoving
party, this Court finds that a jury could also reasonably
conclude that, despite this notice, Defendant nonetheless chose
not to investigate the situation or discipline Plaintiff until
Plaintiff participated in the Wadleigh Mediation and expressed
his willingness to assist Wadleigh in her litigation against
In other words, if Plaintiff’s version of events is
believed, the Defendant ignored Plaintiff’s possible violation
of its sexual harassment reporting policies for anywhere between
eight and thirteen months, yet immediately commenced an
investigation into Plaintiff after he participated in the
Wadleigh Mediation, against Defendant’s interests, which
resulted in his termination.
This is precisely the type of
implausibility, inconsistency, and incoherence from which a jury
could reasonably find that Defendant’s proffered legitimate
reason is “unworthy of credence, and hence infer that
[Defendant] did not act for” its proffered reason.
WL 1526309, at *3.
Additionally, Plaintiff testified that Covenant’s attorney
became enraged when Plaintiff confirmed that he had spoken to
the mediator and that the attorney told him not to speak with
anyone about Wadleigh’s lawsuit.
hotly disputed fact.
Whether this occurred is a
If the jury believes Plaintiff’s
testimony, the jury may infer that Defendant was furious with
Plaintiff for his participation in the Wadleigh Mediation and
terminated his employment in retaliation for that participation,
although the Court recognizes the other, more likely inference,
i.e. that Plaintiff was terminated for failure to timely report
Wadleigh’s complaints, in violation of Covenant’s policies.
Having reviewed the record and resolved all reasonable
inferences in Plaintiff’s favor, the Court finds that Plaintiff
has carried his burden of establishing pretext.
Defendant’s Motion for Summary Judgment is denied as to
Plaintiff’s retaliation claim under NJLAD (Count I).
B. Wrongful Termination (Count II)
Count II of Plaintiff’s Complaint is entitled “Wrongful
It appears to be a “catchall” claim that alleges
employment violated clear mandates of public policy,
namely, policies against sexual discrimination and
retaliation set forth in the LAD, Title VII of the
federal Civil Rights Act, the Equal Employment
Opportunity Commission’s regulations and guidelines,
CEPA and the substantive due process provisions of the
Complaint ¶ 41.
Defendant argues that Plaintiff’s wrongful termination
claim under Count II must be dismissed because it does not
allege any facts distinct from his NJLAD retaliation claim and,
therefore, is preempted by NJLAD.
Def. Br. at 27.
the broad availability of remedies under the LAD, both state and
federal courts in New Jersey have frequently held that the LAD
bars common law claims based on the same operative facts as
underlie the LAD claim.”
Taylor v. Lincare, Inc., 2016 WL
3849852, at *8 (D.N.J. July 15, 2016) (quoting Everson v.
JPMorgan Chase Bank, 2013 WL 1934666, at *2 (D.N.J. May 8, 2013)
Therefore, “[w]here the factual predicates
for the common law claims and the NJLAD claims are the same and
the remedies sought are the same, the common law claims are
Gaines v. United Parcel Serv., Inc., 2014 WL 1450113,
at *5 (D.N.J. Apr. 14, 2014).
Plaintiff’s wrongful termination claim set forth in
Count II of the Complaint is clearly premised upon the same
operative facts as his NJLAD retaliation claim.
expressly incorporates by reference all facts alleged in support
of Plaintiff’s NJLAD claim and adds only one additional
paragraph, in which he alleges that “Covenant improperly
terminated [his] employment with Covenant in retaliation for his
reporting and complaining about Covenant’s improper sexual
harassment policies and procedures and supporting of
Ms. Wadleigh’s sexual harassment claims against Covenant.”
Complaint ¶¶ 39-40.
Likewise, Plaintiff seeks identical
remedies under both his NJLAD and wrongful termination claims.
As a result, to the extent Count II states a common law wrongful
termination claim, such claim is preempted by NJLAD.
Accordingly, summary judgment is granted as to Count II insofar
as it states a common law wrongful termination claim.
In his opposition brief, however, Plaintiff contends that
he also asserts a claim under New Jersey’s Conscientious
Employee Protection Act, N.J.S.A § 34:19-1, et seq. (“CEPA”) in
Count II of the Complaint.
Defendant responds that Count II
only “vaguely alleges” violations of CEPA, but that any CEPA
claim must be dismissed for the same reasons as the NJLAD
Def. Reply Br. at 12 n. 5.3
common law claims arising from the same operative facts and
seeking the same remedies as an NJLAD claim are preempted by
NJLAD, NJLAD does not preempt Plaintiff’s CEPA claim, which is a
statutory cause of action.
Accordingly, summary judgment as to
Count II of the Complaint, insofar as it sets forth a CEPA
claim, is denied.
Moreover, Plaintiff’s CEPA claim, to the
extent it is properly asserted in the Complaint, survives
The Court questions whether Plaintiff’s passing reference
to CEPA in the Complaint adequately gave Defendant notice that
Plaintiff was pursuing a CEPA claim in this litigation. The
parties may wish to address this concern during the Joint Final
Pre-Trial Conference and the Court will also entertain a
pre-trial motion regarding this issue if Defendant believes this
claim was abandoned. To the extent Count II purports to assert
wrongful termination claims under Title VII, the Equal
Employment Opportunity Commission’s regulations and guidelines,
and the Constitutions of the United States and the State of New
Jersey, the Court finds that Plaintiff has abandoned those
claims as he did not defend them in his opposition brief.
summary judgment for the same reasons set forth above with
regards to Plaintiff’s NJLAD retaliation claim.
CEPA claims, like NJLAD claims, are analyzed under the
McDonnell Douglas burden-shifting framework.
Radiology Consultants of S. Jersey, P.A., 477 F. App’x 890, 900
(3d Cir. 2012) (citing Fleming v. Corr. Healthcare Sols., Inc.,
164 N.J. 90, 100-01 (2000)).
To establish a prima facie case of
a CEPA violation, “a plaintiff must establish that (1) he
reasonably believed that his employer’s conduct was violating a
law or rule or regulation promulgated pursuant to law, (2) he
objected to the conduct, (3) an adverse employment action was
taken against him, and (4) a causal connection exists between
the whistleblowing activity and the adverse employment action.”
Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 404
(3d Cir. 2007) (citing Dzwonar v. McDevitt, 177 N.J. 451, 462
The first two elements mirror the protected activity
element of NJLAD, which the parties do not dispute.
it is undisputed that Plaintiff suffered an adverse employment
action when he was terminated.
Finally, for the reasons set
forth above in connection with Plaintiff’s NJLAD retaliation
claim, see supra Section III.A., there is a genuine dispute of
material fact regarding causation, precluding summary judgment.
As described above, Defendant has met its burden of
articulating a legitimate, non-retaliatory reason for
terminating Plaintiff’s employment.
Plaintiff, however, for the
reasons set forth above, has met his burden of establishing that
Defendant’s articulated reason is merely pretext for
Accordingly, for the same reasons that summary
judgment was denied as to Plaintiff’s NJLAD retaliation claim,
see supra Section III.A., summary judgment is also denied as to
Count II, insofar as it sets forth a CEPA claim, and without
prejudice to Defendant raising that such claim was not properly
asserted in the Complaint or has since been abandoned.
For the foregoing reasons, Defendant’s Motion for Summary
Judgment is granted, in part, and denied, in part.
is granted insofar as it relates to Plaintiff’s common law
wrongful termination claim.
The motion is denied as to all
An appropriate Order shall issue on this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: June 13, 2017
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