REGANATO v. APPLIANCE REPLACEMENT INC. et al

Filing 42

OPINION. Signed by Judge Renee Marie Bumb on 2/27/2017. (tf, )

[Docket No. 30]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

ARLENE REGANATO,
Plaintiff,

Civil No. 15-6164 (RMB/JS)
OPINION

v.
APPLIANCE REPLACEMENT INC.
d/b/a MULTI-HOUSING DEPOT and
JOHN DOES 1-5 AND 6-10,
Defendants.

APPEARANCES:
Drake P. Bearden, Jr., Esq.
Kevin M. Costello, Esq.
Costello & Mains, P.C.
18000 Horizon Way, Suite 800
Mount Laurel, NJ 08054
Attorneys for Plaintiff Arlene Reganato
Lawrence Brent Berg, Esq.
Marshall, Dennehey, Warner, Coleman & Goggin
Woodland Falls Corporate Park
200 Lake Drive East, Suite 300
P.O. Box 5049
Cherry Hill, NJ 08002
Attorney for Defendant Appliance Replacement Inc.
d/b/a Multi-Housing Depot
BUMB, UNITED STATES DISTRICT JUDGE:
This matter comes before the Court upon the Motion for
Summary Judgment by Defendant Appliance Replacement, Inc. d/b/a
Multi-Housing Depot (the “Defendant”) [Docket No. 30], seeking
the dismissal of the Complaint by Plaintiff Arlene Reganato (the

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“Plaintiff”).

For the reasons set forth herein, Defendant’s

Motion for Summary Judgment will be granted.
I.

FACTUAL AND PROCEDURAL BACKGROUND
Plaintiff was hired by Defendant in June 2005 and performed

largely payroll functions.

Reganato Dep. Tr. 25:17-24, Civ. A.

No. 14-7716 (RBK/JS) [Docket No. 33-1, Ex. A].

By 2012,

Plaintiff had more responsibilities and performed both payroll
and human resources roles for the Defendant.

Id. 26:9-24.

In

2014, Plaintiff had at least some role in ensuring that
Defendant’s health insurance premiums and bills were paid.
Reganato Dep. Tr. 60:10-19 [Docket No. 30-4].

For example, she

was responsible for reconciling and submitting the payments, as
well as preparing the check requisition.

Id. 60:21-61:14.

In July 2014, another employee at Appliance Replacement,
Christopher McGuigan, was out on FMLA leave.

According to

Plaintiff, Mr. McGuigan’s supervisor told Plaintiff that she
wanted to terminate Mr. McGuigan’s employment, but that
Plaintiff opposed his termination because he was out on FMLA
leave.

Pl. Answer to Interrogatory 4 [Docket No. 33-1, Ex. B].

Mr. McGuigan returned to work around August 2014 and was
subsequently terminated.

Id.

Thereafter, on November 5, 2014,

Mr. McGuigan filed a lawsuit against Defendant alleging that he
was terminated in violation of the FMLA and NJLAD.

McGuigan

Compl., Civ. A. No. 14-7716 (RBK/JS) [Docket No. 33-1, Ex. D].

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Plaintiff testified that, in late 2014, Edward Bell, one of
Defendant’s owners, told her to terminate another employee,
Kelly Radomski, who was out on FMLA leave.

According to

Plaintiff, she told Mr. Bell that she opposed Ms. Radomski’s
termination, which she believed was unlawful given that
Ms. Radomski was out on FMLA leave.
124:2-24.

Reganato Dep. Tr. 106:1-9;

Mr. Bell, on the other hand, testified that it was

Plaintiff’s idea to terminate Ms. Radomski’s employment.
E. Bell Dep. Tr. 52:4-54:4 [Docket No. 30-5].

Ultimately, the

decision was made to discharge Ms. Radomski, and Plaintiff
drafted her termination letter on December 15, 2014.

Pl. SOMF

¶ 29 [Docket No. 33].
Plaintiff claims that, after she protested Mr. McGuigan and
Ms. Radomski’s terminations, which she believed were unlawful,
she was no longer permitted to work overtime or during lunch,
her bonus was reduced, and her workload increased.
Dep. Tr. 93:5-94:9.

Reganato

Plaintiff testified that she believes her

2014 bonus was $5,000, but that she did not recall what it had
been in years prior.

Id. 96:21-97:9.

She did not remember if

there was a change in bonuses for everyone in 2014, but she knew
that some people’s bonuses did not get cut.

Id. 97:13-25.

According to Plaintiff, she was told that she could no longer
work overtime or work through lunch.

She did not know, however,

whether or not other employees received the same limitations.

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Id. 94:21-96:14.

Additionally, Plaintiff testified that Edward

Bell told her that Defendant would not buy back her unused paid
time off (“PTO”).

She does not know, however, whether this

decision applied to other employees as well or whether it was a
company-wide policy.

Id. 100:8-21.

Mr. Bell testified that

Defendant did not buy back unused PTO from its employees.
E. Bell Dep. Tr. 23:1-9.
On December 16, 2014, Defendant’s health insurance for its
employees lapsed due to nonpayment.

An employee told

Defendant’s part-owner, Matthew Bell, that he had gone to pick
up his medications but that his health insurance had been
denied.

M. Bell Dep. Tr. 17:17-18:18 [Docket No. 30-6].

The following day, another employee reported to Defendant’s
Controller, Ginger Gallagher, that his insurance had also been
denied at the pharmacy.
No. 30-7].

Gallagher Dep. Tr. 9:10-16 [Docket

Yet another employee expressed concerns to Al

Clelland, Defendant’s Distribution Manager, about how the
cancellation would affect his wife’s ability to obtain and pay
for her cancer treatments.

Clelland Dep. Tr. 19:20-20:8 [Docket

No. 30-9].
Plaintiff was informed that the insurance had been
cancelled via email from Defendant’s insurance broker on the
evening of December 16, 2014.

Reganato Dep. Tr. 67:21-25;

December 16, 2014 Email [Docket No. 33-2, Ex. P].

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Plaintiff

claims that she did not know that the insurance would lapse if
it was not paid by a certain time.
disputes this.

Pl. SOMF ¶ 56.

Defendant

Sue Duffner, Defendant’s IT Manager, testified

that Defendant’s insurance broker informed her that she had told
Plaintiff in early December 2014 that the insurance would be
canceled if the insurance was not timely paid.
Tr. 40:4-11 [Docket No. 30-10].

Duffner Dep.

Likewise, Matthew Bell

testified that Plaintiff did not pay the insurance premium “when
notified multiple times from our broker.”
17:9-12.

M. Bell Dep. Tr.

Regardless, on December 17, 2014, Ms. Gallagher

contacted the insurance company at Mr. Bell’s instruction and
thereafter submitted the overdue payments on Defendant’s behalf
so that the insurance could be reinstated.

Gallagher Dep.

Tr. 9:17-10:22.
Plaintiff explained that she did not make the insurance
payment because of “an oversight” as she was very busy.
Reganato Dep. Tr. 64:6-22.

She recognizes, however, that she

was at “some” fault for the insurance lapsing.

Id. 84:17-85:2.

Two days later, on December 19, 2014, Plaintiff was terminated.
At that time, Plaintiff was told by Matthew Bell that her
termination was the result of her failure to timely pay the
insurance bill.
30-1].

Pl. SOMF ¶¶ 65-67; Def. SOMF ¶ 23 [Docket No.

Plaintiff concedes that she should have been disciplined

for her involvement in the insurance lapsing; however, she

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disagrees with Defendant’s decision to terminate her.

Reganato

Dep. Tr. 84:24-87:11.
Based upon these facts, Plaintiff claims that Defendant has
unlawfully retaliated against her for her opposition to
Mr. McGuigan and Ms. Radomski’s terminations.

On or about

June 22, 2015, Plaintiff commenced the instant litigation in the
Superior Court of New Jersey, Camden County, Law Division,
setting forth the following counts: retaliation in violation of
the New Jersey Law Against Discrimination (“NJLAD”), N.J.S.A.
§ 10:5-12(d) (Count I); retaliation in violation of the Family
and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et seq.
(Count II); and a request for equitable relief (Count III)
[Docket No. 1-1].

Defendant removed the action to federal court

on August 12, 2015 [Docket No. 1].

Defendant now moves for

summary judgment and the dismissal of Plaintiff’s Complaint in
its entirety.
II.

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).

Fed. R.

A fact is “material” if it will “affect the

outcome of the suit under the governing law[.]”

Anderson v.

Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).

A dispute is

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“genuine” if it could lead a “reasonable jury [to] return a
verdict for the nonmoving party.”

Id.

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.

Furthermore, 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. 373, 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.

7

P. 56(c)).

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
trial.’”

Anderson, 477 U.S. at 250 (citing Fed. R. Civ.

P. 56(e)).

The nonmovant’s burden is rigorous: she “must point

to concrete evidence in the record”; mere allegations,
conclusions, conjecture, and speculation will not defeat summary
judgment.

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.”)).
III. ANALYSIS
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” NJLAD.
12(d).

N.J.S.A. § 10:5-

Similarly, the FMLA provides that “[i]t shall be

unlawful for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice
made unlawful by” the FMLA.

29 U.S.C. § 2615(a)(2).

The Court

will consider Plaintiff’s NJLAD and FMLA retaliation claims
together in light of the substantially similar showings
required.

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Retaliation claims under both the FMLA and NJLAD are
analyzed under the familiar burden-shifting framework set forth
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

Capps

v. Mondelez Glob., LLC, --- F.3d ----, 2017 WL 393237, at *5
(3d Cir. Jan. 30, 2017) (FMLA retaliation); Michaels v. BJ’s
Wholesale Club, Inc., 604 F. App’x 180, 182 (3d Cir. 2015)
(NJLAD retaliation).

Under this framework, a plaintiff must

first establish a prima facie case of retaliation.

Ross v.

Gillhuly, 755 F.3d 185, 193 (3d Cir. 2014).
To establish a prima facie case of retaliation under NJLAD,
a plaintiff must demonstrate that she “engaged in a protected
activity that was known to the employer, that [she] was
subjected to an adverse employment decision, and that there is a
causal link between the activity and the adverse action.”

LaPaz

v. Barnabas Health Sys., 634 F. App’x 367, 369 (3d Cir. 2015)
(citing Battaglia v. United Parcel Serv., Inc., 213 N.J. 518,
547 (2013)).

Similarly, to establish a prima facie case of

retaliation in violation of the FMLA, a plaintiff must show
that: (1) she invoked an FMLA right, (2) she suffered an adverse
employment decision, and (3) the adverse action was causally
related to her invocation of rights.

Budhun v. Reading Hosp. &

Med. Ctr., 765 F.3d 245, 256 (3d Cir. 2014); Lichtenstein v.
Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012).

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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.

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 pretext for the
discrimination or retaliation.”

Tourtellotte v. Eli Lilly &

Co., 636 F. App’x 831, 842 (3d Cir. 2016).
A plaintiff can demonstrate pretext and, therefore,
withstand a motion for summary judgment by “point[ing] 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.”
Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

Fuentes v.

“Moreover, a

‘plaintiff cannot simply show that the employer’s decision was
wrong or mistaken’ to prove pretext; rather, the ‘plaintiff must
demonstrate such weaknesses, implausibilities, inconsistencies,
incoherences, 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]
nondiscriminatory reasons.’”

Ross, 755 F.3d at 194 n. 13

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(quoting Brewer v. Quaker State Oil Ref. Corp., 72 F.3d 326, 331
(3d Cir. 1995) (quoting Fuentes, 32 F.3d at 765)).
A. Prima Facie Case
i. Protected Activity/Invocation of FMLA Right
Under both the FMLA and NJLAD, it is unlawful to retaliate
against any person for opposing practices unlawful under the
FMLA and NJLAD.

29 U.S.C. § 2615(a)(2) (“It shall be unlawful

for any employer to discharge or in any other manner
discriminate against any individual for opposing any practice
made unlawful by this subchapter.”); N.J.S.A. § 10:5-12(d) (“It
shall be an unlawful employment practice, or, as the case may
be, an unlawful discrimination: . . . [f]or any person to take
reprisals against any person because that person has opposed any
practices or acts forbidden under this act . . . .”).

Although

the parties gloss over whether these statutory provisions apply
to Plaintiff’s alleged actions, it appears on the face of the
statutes that they do apply to Plaintiff’s alleged opposition to
Mr. McGuigan and Ms. Radomski’s terminations.
Defendant contends that Plaintiff is unable to establish a
prima facie case of retaliation because there is no “competent
evidence indicating that she engaged in any protected activity
known to her employer other than her self-serving statements
that she did not want to terminate either Mr. McGuigan or
Ms. Radomski at any time.”

Def. Br. at 7 [Docket No. 30].

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While the Court agrees that there is no evidence aside from
Plaintiff’s deposition testimony to support her position that
she opposed Mr. McGuigan and Ms. Radomski’s terminations as
unlawful, her testimony -- which can be said to be discredited
by Edward Bell’s testimony, but not “utterly discredited,” see
Scott, 550 U.S. at 380, as it entails a conflict between the
deposition testimony of the two individuals -- raises, ever so
slightly, a question of fact as to whether she engaged in a
protected activity by protesting Mr. McGuigan and Ms. Radomski’s
terminations while they were on FMLA leave.
ii. Adverse Employment Decision
The next element which Plaintiff must show to establish a
prima facie case of retaliation under the FMLA and NJLAD is an
adverse employment decision.

The parties have not directly

addressed whether the actions Plaintiff alleges she suffered
constitute actionable adverse employment decisions.

Rather, the

parties focus on whether there is sufficient evidence in the
record to establish that the alleged actions occurred.
Nonetheless, the Court must next determine whether Plaintiff
suffered adverse employment actions.
First, it is important to note that Plaintiff clearly
suffered an adverse employment action when she was terminated on
December 19, 2014.

The parties do not dispute this.

Plaintiff,

however, appears to allege that she suffered earlier adverse

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employment actions after she objected to Mr. McGuigan and
Ms. Radomski’s terminations, but prior to her discharge.

It is

this latter part of Plaintiff’s case that the Court now
addresses.
Not every unwelcome employment decision is actionable.
Instead, “[a]n adverse employment action is one which is serious
and tangible enough to alter an employee’s compensation, terms,
conditions, or privileges of employment.”

Fiorentini v. William

Penn Sch. Dist., --- F. App’x ----, 2016 WL 7338428, at *4
(3d Cir. Dec. 16, 2016) (quoting Cardenas v. Massey, 269 F.3d
251, 263 (3d Cir. 2001)).

Plaintiff claims that, after she

objected to Mr. McGuigan and Ms. Radomski’s terminations,
Defendant no longer let her work overtime or through lunch, did
not buy back one week of unused PTO, reduced her annual bonus,
and increased her workload.

Apparently, Plaintiff contends that

these are each independent adverse employment actions.
following reasons, the Court disagrees.

For the

To the extent

Plaintiff’s claims are premised upon these actions, they must be
dismissed as there is no evidence in the record that these
decisions were sufficiently serious and tangible to change
Plaintiff’s compensation, terms, conditions, or privileges of
employment.
As to overtime, there is no evidence in the record that
establishes that Defendant’s decision not to let Plaintiff work

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overtime or through lunch seriously and tangibly affected her
compensation or employment.

For example, there is no evidence

in the record that Plaintiff ever actually attempted to work
overtime or through lunch and was denied.

In fact,

Ms. Gallagher, testified that Plaintiff never discussed the need
to work overtime with her.

Gallagher Dep. Tr. 34:4-19.

Additionally, there is no evidence as to how often Plaintiff had
previously worked overtime or through lunch before her alleged
protected activity and how Plaintiff’s compensation changed once
she was no longer able to do so.

Furthermore, it is unclear how

long this decision affected Plaintiff.

At most, Plaintiff was

not permitted to work overtime or through lunch from July or
August 2014, when she supposedly objected to Mr. McGuigan’s
termination, until her own termination in December 2014.

The

loss of some indeterminate and speculative overtime
opportunities over the course of at most a few months does not
constitute an actionable adverse employment decision.

See Swain

v. City of Vineland, 457 F. App’x 107, 111 (3d Cir. 2012).
The Court next turns to Plaintiff’s allegation that
Defendant reduced her annual bonus in 2014.

As a preliminary

matter, there is no evidence that Plaintiff was entitled to a
bonus of the same amount as previous years.

In any case, there

is no evidence that Plaintiff’s bonus was even reduced
significantly except for Plaintiff’s own conclusory deposition

14

testimony that her “bonus was cut in half” and her unsupported
opinion that the reduction was “material,” as Plaintiff cannot
recall what her bonus had been in previous years.
Tr. 93:10-11; 96:14-97:9.

Reganato Dep.

This is, at most, a scintilla of

evidence, which is insufficient standing alone to raise a
triable issue of fact.

Anderson, 477 U.S. at 252.

Accordingly,

the Court finds that Plaintiff cannot establish that any
reduction in her bonus was an actionable adverse employment
decision that was serious and tangible enough to change her
compensation, terms, conditions, or privileges of employment.
Furthermore, Plaintiff has not established that Defendant’s
alleged decision not to buy back one week of her unused PTO,
especially in light of Defendant’s policy not to buy back PTO,
was serious and tangible enough to alter her compensation,
terms, condition, or privileges of employment.

Finally,

Plaintiff merely alleges that her workload increased and that
she was very busy.

There is no evidence that supports her

claims that her workload increased after she objected to
Mr. McGuigan and Ms. Radomski’s terminations or how the increase
altered her terms, conditions, and privileges of employment.
Moreover, Plaintiff’s allegations that her workload increased,
without more, do not rise to the level of an adverse employment
action.

See Fitzgerald v. Shore Mem’l Hosp., 92 F. Supp. 3d

214, 240-41 (D.N.J. 2015).

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iii. Causation
Even assuming that Plaintiff can establish the other
elements of the prima facie case, Defendant argues that
Plaintiff has adduced no evidence of causation between any
protected activities and her termination or any other adverse
employment action.

“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 her
[protected activity] and her termination.”
691 F.3d at 307.

Lichtenstein,

“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 inference.’”

Id. (quoting LeBoon v. Lancaster Jewish

Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)) (internal
citation omitted).
The Court agrees with Defendant that Plaintiff has failed
to establish a causal link between Plaintiff’s purported
protected activity and any of the events Plaintiff contends
should be considered adverse employment decisions.

For ease of

the record, the Court addresses the lack of causal link between

16

Plaintiff’s opposition to Mr. McGuigan and Ms. Radomski’s
terminations and each of these alleged adverse events.
As a general matter, the Court notes that there is no
evidence from which to assess the temporal proximity between
Plaintiff’s alleged protected activity and the alleged adverse
employment actions, other than Plaintiff’s termination.
Moreover, Plaintiff has identified no other evidence in the
record from which a reasonable jury could infer an unlawful
motive for these decisions.
The Court first addresses Plaintiff’s contention that
Defendant did not permit her to work overtime or through lunch
after she opposed Mr. McGuigan and Ms. Radomski’s terminations.
Plaintiff, however, has not identified when Defendant stopped
permitting her to work overtime or through lunch or when any
request to do so was denied.

Additionally, looking at the

record as a whole, there is no evidence from which to infer
causation.

Ms. Gallagher explained that Defendant’s

company-wide policy required Defendant’s employees to obtain
management approval before working overtime.
Tr. 14:20-15:6.

Gallagher Dep.

Furthermore, Ms. Gallagher testified that she

did not permit Plaintiff to work overtime because Defendant had
no need for Plaintiff to do so and Plaintiff had not “justified”
why she needed to work overtime.

17

Indeed, Ms. Gallagher noted

that Plaintiff never discussed the need to work overtime with
her.

Gallagher Dep. Tr. 34:2-36:3.
Plaintiff also avers that her 2014 bonus was significantly

reduced.

While Plaintiff testified that she received this

reduced bonus in December 2014, there is no evidence regarding
when the bonus decision itself was made.

Moreover, there is no

evidence in the record that suggests a causal link between the
decision to decrease her bonus and her alleged protected
activity.

Likewise, there is no evidence in the record that

demonstrates when Plaintiff’s workload purportedly increased or
that any increase in her workload was causally related to her
objections to Mr. McGuigan and Ms. Radomski’s terminations in
July or August 2014 and December 2014, respectively.
The Court next turns to Plaintiff’s claim that Defendant
decided not to buy back one week of her unused PTO.

Plaintiff

has not established when this decision was made, let alone that
there was any unusually suggestive temporal proximity between
such decision and her opposition to Mr. McGuigan and
Ms. Radomski’s terminations.

What’s more, the evidence as a

whole does not support any inference of causation.

Rather, as

Edward Bell testified, the evidence indicates that, per
Defendant’s PTO policy, only two days of unused PTO could be
carried over to the following year and, at the time of

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Plaintiff’s termination, Defendant did not buy back employees’
unused PTO.

E. Bell. Dep. Tr. 22:8-23:16.

Finally, Defendant argues that there is no evidence from
which to infer a causal link between Plaintiff’s alleged
protected activity and her termination on December 19, 2014.
Rather, in Defendant’s view, the only inference to be gleaned
from the evidence is that Plaintiff’s termination was the direct
result of her failure to timely pay Defendant’s insurance bill,
which caused Defendant’s employees to temporarily lose their
health insurance coverage.

Plaintiff responds that the temporal

proximity between her alleged objection to Ms. Radomski’s
termination in early December 2014 and Plaintiff’s own
termination on December 19, 2014 is unusually suggestive of
retaliatory motive and, therefore, sufficient to establish
causation.

Plaintiff testified that she complained in early

December 2014 about Ms. Radomski’s termination while she was on
FMLA leave and that Ms. Radomski was ultimately terminated on or
around December 15, 2014.

On December 19, 2014, approximately

two weeks after Plaintiff’s complaints about Ms. Radomski’s
termination and three days after Defendant’s insurance lapsed
due to Plaintiff’s failure to timely pay the premium, Plaintiff
was terminated.
Without more, the Court cannot find that this temporal
proximity is so unduly or unusually suggestive of retaliatory

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motive that it is “sufficient standing alone to create an
inference of causality” at the summary judgment stage,
especially in light of the intervening insurance payment error.
Lichtenstein, 691 F.3d at 307; see also 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.”).

Looking at the record as a whole, there is no

other evidence from which a reasonable jury could infer a causal
link between Plaintiff’s alleged protected activity and her
termination.
Accordingly, as Plaintiff has not established a prima facie
case of retaliation under the FMLA or NJLAD, summary judgment as

20

to Plaintiff’s FMLA and NJLAD retaliation claims (Counts I-II)
is appropriate.
B. Articulated Non-Retaliatory Reasons
Even if Plaintiff were able to establish a prima facie case
of retaliation based upon certain adverse employment decisions,
under the McDonnell Douglas framework, the burden would then
shift to Defendant to articulate a legitimate non-retaliatory
reason for its actions.

Tourtellotte, 636 F. App’x at 842.

Here, Defendant articulated that Plaintiff was not
permitted to work overtime or to have her unused PTO bought back
by Defendant due to company-wide policies.

As to overtime,

Defendant explained that its company-wide policy did not permit
employees to work overtime without management approval, as it
was more costly for the company.

Defendant’s Controller also

explained that Defendant did not need Plaintiff to work overtime
and that Plaintiff could not justify her supposed need to work
overtime.

Gallagher Dep. Tr. 14:20-15:6; 27:13-28:12; 34:2-19.

Additionally, per Defendant’s company-wide PTO policy, employees
were permitted to carry over two days of unused PTO to the
following year.

Defendant, however, did not buy back its

employees’ unused PTO.

E. Bell. Dep. Tr. 22:8-23:16.

As to Plaintiff’s discharge, Defendant explained that
Plaintiff’s employment was terminated on December 19, 2014
because she failed to timely pay Defendant’s insurance bills,

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which caused its employees’ health insurance coverage to
temporarily lapse on or about December 16, 2014.

The Court

finds that Defendant has carried its burden of articulating
legitimate non-retaliatory reasons for its decisions.
C. Pretext
As Defendant has articulated legitimate, non-retaliatory
reasons for its actions, 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, “the 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
determinate cause of the employer’s action.’”

Simpson v. Kay

Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 644 (3d Cir.
1998) (quoting Fuentes, 32 F.3d at 764) (emphasis added).
The Court can readily dispose of Plaintiff’s claims as they
relate to Defendant’s refusal to allow Plaintiff to work
overtime and to buy back Plaintiff’s unused PTO, as Plaintiff
has not set forth any evidence to refute Defendant’s proffered
non-retaliatory explanations.

Plaintiff does not rebut

Defendant’s contention that, per company-wide policy, it does
not buy back its employees’ unused PTO.

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In fact, Plaintiff

testified that she did not remember whether Defendant’s decision
was directed only at her or whether it was a company-wide
policy.

Reganato Dep. Tr. 100:12-21.

Similarly, Plaintiff has

put forth no evidence to establish that Defendant’s reason for
not permitting her to work overtime was pretext for retaliation.
Plaintiff has identified three employees who were permitted to
work overtime, but notes that they perform different functions
and responsibilities than she does.

Id. 99:16-100:7.

Additionally, there is no evidence that these employees had not
obtained management approval to work overtime per Defendant’s
policy.

Furthermore, Plaintiff admits that she does not know if

any other employees were not permitted to work overtime and that
she does not remember speaking to anyone about why she was not
permitted to work overtime.

Id. 95:14-17; 101:17-102:12.

As to her discharge, Plaintiff argues that she can
establish that Defendant’s articulated reason is pretext for
retaliation because her failure to timely pay the insurance bill
was “not sufficient enough to warrant termination given
[Plaintiff’s] over ten years with Defendant and otherwise
unblemished disciplinary record.”
No. 33].

Pl. Opp. Br. at 8 [Docket

In essence, although Plaintiff agrees that some

discipline was appropriate for her error, Plaintiff believes the
discipline she received, namely termination, was too harsh.

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Plaintiff’s mere disagreement with Defendant’s disciplinary
decision is insufficient to satisfy her burden of demonstrating
that Defendant’s proffered legitimate, non-retaliatory reason
for her termination is pretext for retaliation.

Plaintiff

cannot defeat summary judgment by “simply show[ing] that the
employer’s decision was wrong or mistaken, since the factual
dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or
competent.”

Fuentes, 32 F.3d at 765.

“[F]ederal courts are not

arbitral boards ruling on the strength of ‘cause’ for discharge.
The question is not whether the employer made the best, or even
a sound, business decision; it is whether the real reason is
[retaliation].”

Keller v. Orix Credit All., Inc., 130 F.3d

1101, 1109 (3d Cir. 1997) (internal citations and quotations
omitted); see also Healy v. N.Y. Life Ins. Co., 860 F.2d 1209,
1216 (3d Cir. 1988) (“our inquiry must concern pretext, and is
not an independent assessment of how we might evaluate and treat
a loyal employee.”).
Moreover, Plaintiff has pointed to no evidence that
demonstrates that Defendant’s proffered reason for her
termination -- her failure to timely pay Defendant’s insurance
bills -- is pretext for retaliation.

Rather, she presents only

her own unsupported belief that the discipline she received was
unduly severe.

Such “speculation and conjecture may not defeat

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summary judgment” as this Court “cannot, in this posture, make
inferences based on pure supposition.”

Jackson, 594 F.3d at 226

(citing Acumed, 561 F.3d at 228).
Finally, Plaintiff claims that “[t]here is further evidence
of pretext in the weaknesses, implausibilities, inconsistencies,
incoherencies, and contradictions in Defendant’s explanation why
Plaintiff was terminated.”

Pl. Opp. Br. at 9.

Plaintiff notes

that some managerial employees testified at their depositions
that they reviewed certain email correspondence between
Plaintiff and Defendant’s insurance broker, while others
testified that such correspondence did not exist.

Id. at 9-10.

Additionally, Plaintiff points out that George Cowden,
Defendant’s Director of Sales, testified that Matthew Bell told
him several employees complained to him about their insurance
being denied, while Mr. Bell testified that only one employee
complained to him.

Id. at 10.

These purported inconsistencies

are irrelevant to the reason for Plaintiff’s termination.
Defendant’s employees were, in fact, consistent across the
board regarding the reason for Plaintiff’s termination:
Plaintiff failed to timely pay Defendant’s insurance bill and
this failure resulted in the temporary cancellation of
Defendant’s health insurance for its employees.

See, e.g.,

E. Bell Dep. Tr. 13:22-14:3; M. Bell Dep. Tr. 17:6-12; Cowden
Dep. Tr. 20:11-22 [Docket No. 30-8]; Clelland Dep. Tr. 18:2-7;

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Duffner Dep. Tr. 11:16-12:8.

Whether one or six employees

complained about their insurance being denied or whether certain
email correspondence was or was not considered is immaterial.
Plaintiff does not dispute that the insurance lapsed because she
did not timely pay the insurance bill and that she should have
been disciplined for this error.
Tr. 63:21-64:22; 84:24-87:11.

See, e.g., Reganato Dep

Plaintiff has demonstrated no

“weaknesses, implausibilities, inconsistencies, incoherences, or
contradictions in the employer’s proffered legitimate reason for
its action” from which a reasonable jury could find that
Defendant’s proffered reason is merely pretext for retaliation.
Ross, 755 F.3d at 194 n. 13 (emphasis added).
Accordingly, summary judgment as to Plaintiff’s NJLAD and
FMLA retaliation claims (Count I-II) is also appropriate for the
additional reason that Plaintiff has not met her burden of
establishing that Defendant’s proffered legitimate,
non-retaliatory reason for her termination is merely pretext for
retaliation.1

1

In addition to the retaliation claims, Plaintiff’s
Complaint alleges a cause of action for “Equitable Relief”
(Count III). As the equitable relief sought by Plaintiff is
premised upon a successful showing of unlawful conduct on
Defendant’s part and the Court has granted summary judgment in
favor of Defendant as to Plaintiff’s substantive claims,
Count III must be dismissed as well.
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IV.

CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary
Judgment is granted in its entirety.
dismissed with prejudice.

Plaintiff’s Complaint is

An appropriate Order shall issue on

this date.
s/Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE
Dated: February 27, 2017

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