LONG v. LEGGETT & PLATT, INCORPORATED et al

Filing 79

OPINION. Signed by Judge Noel L. Hillman on 7/27/2020. (dmr)

Case 1:16-cv-04907-NLH-KMW Document 79 Filed 07/28/20 Page 1 of 19 PageID: 1212

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

RANDAL LONG,

1:16-cv-04907 (NLH/KMW)
Plaintiff,

OPINION

v.
LEGGETT & PLATT,
INCORPORATED; JOHN CASE; XYZ
ENTITIES 1-100, fictitious
unknown business entities;
and J. DOES 1-100, fictitious
unknown individuals,
Defendants.

APPEARANCES:
ROBERT J. HAGERTY
HAGERTY & BLAND-TULL LAW LLC
MOORESTOWN TIMES SQUARE
714 EAST MAIN STREET – SUITE 2C
MOORESTOWN, NJ 08057
Counsel for Plaintiff.
MICHAEL R. MILLER
MARGOLIS EDELSTEIN
THE CURTIS CENTER, SUITE 400E
170 S. INDEPENDENCE MALL W.
PHILADELPHIA, PA 19106-3337
CHRISTOPHER JAMES GILLIGAN
MARGOLIS EDELSTEIN
THE CURTIS CENTER, SUITE 400E
170 S. INDEPENDENCE MALL W.
PHILADELPHIA, PA 19106-3337
Counsel for Defendants.
HILLMAN, District Judge
In this employment action, Plaintiff Randal Long

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(“Plaintiff”) alleges that his former employer, Defendant
Leggett & Platt, Inc. (“Defendant”) unlawfully retaliated
against him for reporting sexual harassment occurring in the
workplace, in violation of the New Jersey Law Against
Discrimination (the “NJLAD”), N.J. Stat. Ann. § 10:5-1, et seq.
Plaintiff also alleges that certain employees of Defendant aided
and abetted in Defendant’s retaliatory conduct.
Before the Court are two motions: (1) Defendant’s motion
for summary judgment (ECF No. 64), and (2) Plaintiff’s motion to
have late-served responses to requests for admissions propounded
by Defendant deemed served within time.

(ECF No. 67).

For the

reasons expressed below, Plaintiff’s discovery motion – the
outcome of which has no material impact on this Court’s
resolution of Defendant’s dispositive motion - will be granted.
Defendant’s motion for summary judgment will also be granted,
and the Clerk will be directed to close this matter.
BACKGROUND
The Court takes its facts from the statements of material
fact submitted by each party pursuant to Local Civil Rule 56.1.
The material facts are largely undisputed.
Plaintiff worked with Defendant, on and off, for the better
part of the last thirty years.

Plaintiff first joined Defendant

in 1982 and remained with Defendant for eight consecutive years
before departing.

(ECF No. 68 (“Pl. SOMF”) at ¶¶1–3).
2

After

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spending four years elsewhere, Plaintiff returned to work for
Defendant, quickly rising through the leadership ranks, becoming
Vice President of Sales in 2005, Director of Sales in 2009, and
Senior Vice President of Sales in January 2014.

(Pl. SOMF at

¶¶4-7).
In April 2014, John Case (“Case”) was hired as the
President of Defendant’s Consumer Products Unit and became
Plaintiff’s direct supervisor.

(Pl. SOMF at ¶8).

Case was

hired to, at least in part, restructure Defendant’s sales units
and cut costs where possible, including through reducing the
work force.

(Pl. SOMF at ¶11).

Under Case’s leadership, and in

the context of this broader restructuring plan, Plaintiff was
demoted in April 2015 to Regional Vice President of Sales for
the Northeast Region.

(Pl. SOMF at ¶10).

In September of 2015, as further part of the restructuring
plan, Case and his team decided to remove two positions from the
organizational chart, one of which was occupied by Plaintiff.
(Pl. SOMF at ¶¶12, 16-18).

According to Case, Plaintiff was

chosen for a reduction in force because he was the highest paid
regional vice president and his sales region was one of the
smallest in the company.

See (Pl. SOMF at ¶14).

Conversations regarding the restructuring plan, and as a
byproduct, Plaintiff’s termination, continued internally through
October 2015.

(Pl. SOMF at ¶12).
3

For example, on October 12,

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2015, at Case’s direction, Justen Moore (“Moore”), a member of
Defendant’s human resources department, calculated Plaintiff’s
severance benefits.

See (Pl. SOMF at ¶¶21-22, 25).

Moore

explained that Plaintiff would be entitled to general severance
under Defendant’s severance policy, but also identified that
Plaintiff would be entitled to a substantial bonus if he
remained with the company until January 1, 2016.
¶¶33-34).

(Pl. SOMF at

Shortly thereafter, Case sent an internal email

indicating (1) Plaintiff’s position would be dissolved and the
work absorbed by another pursuant to a force reduction, and (2)
Plaintiff would be severed on or around January 1, 2016.
(Pl. SOMF at ¶12).

See

Case decided, due in large part to

Plaintiff’s long tenure with Defendant, that Plaintiff’s
severance should wait until Plaintiff was eligible to receive
his full bonus.

(Pl. SOMF at ¶¶34-35).

Two months later, in December 2015, Plaintiff reported to
Robert Newcombe (“Newcombe”), the Senior Vice President of Sales
and Marketing, that Bobby Keen, an employee of Defendant, was
sexually harassing a female employee.

(Pl. SOMF at ¶¶45-47).

Plaintiff reported that the female colleague confided in him
that if Defendant fired her, she would file a sexual harassment
lawsuit. 1

(Pl. SOMF at ¶47).

1

The Court has also considered Plaintiff’s counterstatement of
material fact (ECF No. 71), which largely focuses on these
4

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On January 6, 2016, after Plaintiff became eligible for his
bonus, Case instructed that Plaintiff be paid out, terminated,
and that his position be dissolved consistent with the
reorganization plan.

(Pl. SOMF at ¶39).

That same day,

Defendant fully approved Plaintiff’s severance and set a
termination date of January 7.

(Pl. SOMF at ¶41).

Because

Plaintiff was out of town on vacation during that date,
Defendant delayed Plaintiff’s termination until January 15 so
that parties could meet in person to discuss the situation.
(Pl. SOMF at ¶¶41-44).

See

Such ended Plaintiff’s long-standing

employment with Defendant.
Plaintiff filed an initial complaint against Defendant on
August 11, 2016 alleging retaliation and aiding and abetting
under the NJLAD, along with a claim for punitive damages.

That

complaint was subsequently removed to this Court from the
Superior Court of New Jersey.

(ECF No. 1).

On February 10,

2017, Defendant moved for judgment on the pleadings (ECF No.
25), and on March 6, 2017, Plaintiff cross-moved for leave to

sexual harassment allegations. Indeed, Plaintiff spends much of
his brief in opposition to summary judgment focused on these
issues. Any relevancy of such content, however, is marginal at
best to this action. For reasons to be discussed further below,
all that remains relevant to this Court’s inquiry is that
Plaintiff reported what he believed to be sexual harassment
incidents to Defendant’s employees during December 2015.
Therefore, the Court chooses not to recite any detailed
commentary about these underlying accusations regarding third
parties in this Opinion.
5

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amend (ECF No. 28).

On September 27, 2017, this Court granted

in part and denied in part Defendant’s motion for judgment on
the pleadings and granted Plaintiff’s motion for leave to amend.
(ECF No. 34).

Plaintiff filed the operative first amended

complaint in this action on October 11, 2017.

(ECF No. 35).

The first amended complaint alleges Defendant retaliated against
Plaintiff in violation of the NJLAD and also contains an NJLAD
aiding and abetting claim against various employees of
Defendant.

Defendant moved for summary judgment on December 13,

2019 (ECF No. 64), which Plaintiff opposed on January 7, 2020
(ECF No. 66).

Plaintiff also cross-moved to amend its responses

to requests for admission Defendant propounded (ECF No. 67),
which Defendant opposed on January 14, 2020 (ECF No. 78).

Both

motions have been fully briefed and are ripe for adjudication.
ANALYSIS
I.

Subject Matter Jurisdiction
The Court exercises subject matter jurisdiction pursuant to

28 U.S.C. § 1332(a).
II.

Plaintiff’s Motion To Amend Its Request For Admission
(“RFA”) Responses Will Be Granted, But Only Because That
Motion Has No Material Impact On The Court’s Resolution
Of Defendant’s Motion For Summary Judgment

The Court begins, unfortunately, with a foray into
otherwise straightforward discovery rules.

Indeed, courts,

including this one, loathe policing basic discovery disputes

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that should otherwise be easily resolved by the parties without
the Court’s intervention.
The facts underlying the parties’ discovery dispute are
hardly contested.

On March 28, 2018, Defendant propounded RFAs

upon Plaintiff pursuant to Rule 36 of the Federal Rules of Civil
Procedure.

(ECF No. 72 at ¶3).

Plaintiff admits that, on April

27, 2018 – thirty days after the RFAs were propounded – he
failed to serve responses on Defendant.

(ECF No. 72 at ¶4).

After the deadline to respond had passed, on May 1, 2018,
Plaintiff sought an extension of time within which to serve
responses, which Defendant graciously agreed to that same day.
(ECF No. 72 at ¶¶4-6).

Defendant agreed to accept responses

served on or before May 8, 2018.

(ECF No. 72 at ¶6).

May 8th came to pass without Plaintiff serving his responses
or otherwise communicating with Defendant’s counsel.

Instead,

Plaintiff waited until May 14, 2018 to serve responses.
No. 72 at ¶8).

(ECF

Defendant avers that, because Plaintiff failed

to timely serve responses, the RFAs are deemed admitted.
Plaintiff disagrees and asks this Court to retroactively forgive
his tardiness.
The Federal Rules of Civil Procedure are unquestionably
clear on this matter.

Any party may serve RFAs on another.

Fed. R. Civ. P. 36(a)(1).

Responses to those RFAs must be

served upon the propounding party “within 30 days after being
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served” unless the parties stipulate to an alternative schedule.
Fed. R. Civ. P. 36(a)(3).

Any matter not responded to in a

timely fashion is deemed admitted.

Fed. R. Civ. P. 36(a)(3).

Plaintiff admits he failed to serve timely responses on two
occasions: first, Plaintiff missed the initial thirty-day
deadline, and second, Plaintiff missed the extended deadline
Defendant was gracious enough to afford him.

Such results in

the RFAs being deemed admitted.
Nonetheless, Plaintiff argues that his tardy responses
should be accepted to promote fairness in this action.
66-1 at 19-20).

(ECF No.

Rule 36(b) provides that courts may permit

admissions to be withdrawn or amended “if it would promote the
presentation of the merits of the action” and if the court is
persuaded that withdrawal would not prejudice the requesting
party in maintaining or defending the actions on the merits.
Fed. R. Civ. P. 36(b).

Plaintiff has done little to satisfy

this Court that the requirements of Rule 36(b) have been met.
Nonetheless, under the circumstances, and finding that
granting Plaintiff’s motion to have his RFAs deemed served
within time will not materially alter the outcome of Defendant’s
motion for summary judgment, the Court will grant Plaintiff’s
motion, but with this important reminder of the goal and
dictates of the rules of procedure.

Congress has decided that

failure to timely serve responses to RFAs shall be met with
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strict penalty, namely, those requests being deemed admitted;
this Court is not in the business of second-guessing Congress’
clear directives.

Had Plaintiff’s delays materially impacted

the outcome of Defendant’s motion, Plaintiff can be assured its
motion would have been denied and it would have been left with
the consequences of the lack of timely compliance.
III. Legal Standard – Summary Judgment
Summary judgment is appropriate where the Court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits if any,’ . . . demonstrate the absence of a genuine
issue of material fact” and that the moving party is entitled to
a judgment as a matter of law.”

Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor.
248 (1986).

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

A fact is “material” if, under the governing

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

Id.

“In considering a motion for summary

judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence ‘is to be believed and
all justifiable inferences are to be drawn in his favor.’”
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Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(citing Anderson, 477 U.S. at 255).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
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.”); see Singletary v. Pa.
Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although
the initial burden is on the summary judgment movant to show the
absence of a genuine issue of material fact, ‘the burden on the
moving party may be discharged by []showing[]--that is, pointing
out to the district court—–that there is an absence of evidence
to support the nonmoving party’s case’ when the nonmoving party
bears the ultimate burden of proof.” (citing Celotex, 477 U.S.
at 325)).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial.
U.S. at 324.

Celotex, 477

A “party opposing summary judgment ‘may not rest

upon the mere allegations or denials of the . . . pleading[s].’”
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Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

For

“the non-moving party[] to prevail, [that party] must ‘make a
showing sufficient to establish the existence of [every] element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.’”

Cooper v. Sniezek, 418 F.

App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322).
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.
IV.

Anderson, 477 U.S. at 257.
Defendant’s Motion For Summary Judgment

The NJLAD prohibits retaliation against an employee because
that employee “has opposed any practices or acts forbidden under
[the NJLAD] or because that person has filed a complaint,
testified or assisted in any proceeding under [the NJLAD].”
Nuness v. Simon & Schuster, Inc, 221 F. Supp. 3d 596, 605
(D.N.J. 2016) (quoting N.J. Stat. Ann. § 10:5–12(d)).

To state

a prima facie case for retaliation under the NJLAD, Plaintiff
must show that he (1) engaged in protected activity, (2)
suffered an adverse employment action, and (3) that there was a
causal connection between the protected activity and the adverse
employment action.

Id. (quoting Sanchez v. SunGard Availability

Servs. LP, 362 Fed. Appx. 283, 287 (3d Cir. 2010)).

Once a

plaintiff establishes a prima facie case of retaliation, the
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defendants must “articulate a legitimate, non-retaliatory reason
for the decision.”

Young v. Hobart W. Grp., 897 A.2d 1063,

1072–73 (N.J. Super. Ct. App. Div. 2005) (quoting Romano v.
Brown & Williamson Tobacco Corp., 665 A.2d 1139, 1142 (N.J.
Super. Ct. App. Div. 1995)).

Next, “the plaintiff must come

forward with evidence of a discriminatory motive of the
employer, and demonstrate that the legitimate reason was merely
a pretext for the underlying discriminatory motive.”

Id.

(quoting Romano, 665 A.2d at 1142).
A. Plaintiff May State A Prima Facie Case For NJLAD
Retaliation
The Court hesitates to find Plaintiff states a prima facie
case for retaliation for the reasons to follow, but nonetheless,
out of an abundance of caution, will conduct a complete NJLAD
analysis.
1. Plaintiff May Have Engaged In A Protected Activity
Reporting to an employer what an employee objectively and
reasonably perceives to be unlawful discriminatory behavior, and
then being retaliated against for doing so, constitutes a
violation of the NJLAD’s prohibition against retaliation.

See

Daniels v. Sch. Dist. of Philadelphia, 776 F.3d 181, 193–94 (3d
Cir. 2015) (quoting Crawford v. Metro. Gov’t of Nashville &
Davidson Cnty., 555 U.S. 271, 276, 129 S. Ct. 846, 851, 172 L.
Ed. 2d 650 (2009)) (“When an employee communicates to her

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employer a belief that the employer has engaged in . . . a form
of employment discrimination, that communication’ virtually
always ‘constitutes the employee’s opposition to the
activity.”); Wilkerson v. New Media Tech. Charter Sch. Inc., 522
F.3d 315, 322 (3d Cir. 2008) (quoting Moore v. City of
Philadelphia, 461 F.3d 331, 341 (3d Cir. 2006), as amended
(Sept. 13, 2006)).

In determining whether a plaintiff was

opposing discrimination or was otherwise engaging in a separate
activity, courts “look to the message being conveyed[.]”

Moore,

461 F.3d at 343 (quoting Curay–Cramer v. Ursuline Acad. of
Wilmington, Del., Inc., 450 F.3d 130, 135 (3d Cir. 2006)).
It remains unclear whether Plaintiff was engaged in a
protected activity.

On the one hand, Plaintiff’s activity could

be viewed as alerting his employer to potential sexual
harassment occurring within the company.
protected activity.

Such would be a

Smith v. Exxon Mobil Corp., 374 F. Supp. 2d

406, 419 (D.N.J. 2005) (“[Plaintiff] engaged in a protected
activity when she turned to various levels of management with
complaints regarding . . . sexual harassment.”); Hargrave v.
County of Atlantic, 262 F. Supp. 2d 393, 424 (D.N.J. 2003)
(“Plaintiff . . . clearly engaged in protected activity . . .
when she made complaints about Defendant[’s] . . . alleged
sexual harassment”); Michaels v. BJ’s Wholesale Club, Inc., No.
11-5657, 2014 WL 2805098, at *6 (D.N.J. June 19, 2014) (quoting
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Fabrikant v. Arthur J. Gallagher & Co., A-5995-05T1, 2008 WL
281690, at *7 (N.J. Super. Ct. App. Div. Feb. 4, 2008))
(“Protected activity can include a plaintiff[’]s complaints
concerning allegations of discrimination against herself or
others . . . .”).
On the other hand, the tenor of Plaintiff’s message appears
less akin to reporting sexual misconduct and more akin to
alerting his employer to potential litigation risks.

Indeed,

Plaintiff reported that an employee was threatening to sue only
if she was terminated.

Reporting the risk of potential

litigation, of itself, would not qualify as a protected
activity.
Because the meaning of Plaintiff’s words and the message he
intended to convey remains in question, the Court cannot
determine definitively from the record before it whether
Plaintiff’s activity is of the protected type.

As such, the

analysis must continue.
2. Plaintiff Suffered An Adverse Employment Action
“Under the LAD, an ‘adverse employment action’ is one
‘sufficiently severe or pervasive to have altered plaintiff’s
conditions of employment in an important and material manner.’”
Ivan v. County of Middlesex, 595 F. Supp. 2d 425, 470 (D.N.J.
2009) (quoting El-Siofi v. St. Peter’s Univ. Hosp., 887 A.2d
1170, 1188 (N.J. Super. Ct. App. Div. 2005)).
14

Termination from

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employment is the quintessential adverse employment action.
Because Plaintiff was fired, he satisfies this element of the
analysis.
3. While Plaintiff Was Fired Shortly After Reporting
Sexual Harassment Activity, The Circumstances Suggest
There Was No Causal Connection Between His Reporting
Of Sexual Harassment And His Termination
“In determining whether a plaintiff has produced prima
facie evidence of causation, the decisions of our Court of
Appeals have generally focused on two indicia: timing and
evidence of ongoing antagonism.”

Hargrave, 262 F. Supp. 2d at

424.
Although the timing of an employer’s adverse employment
action will, by itself, rarely provide prima facie
evidence that disciplinary action is attributable to
retaliatory motives, the temporal proximity between an
employer’s action and an employee’s protected activity
may permit an inference of causation where the
relatively short interval between the two is “unusually
suggestive” of retaliation.
Id. (footnote omitted).

“In cases where the timing of an

employer’s adverse action is, by itself, inconclusive,
plaintiff[s] may demonstrate a causal link by producing
circumstantial evidence of ‘ongoing antagonism’ or ‘retaliatory
animus’ in the intervening period between [t]he[i]r complaints
and the adverse action.”

Id. at 424-25 (quoting Kachmar v.

SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997);
Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir. 1997)).
Further, “the Court of Appeals has not excluded the possibility
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that the timing of an employer’s action, together with ‘other
types of circumstantial evidence,’ may also suffice to support
an inference of causation.”

Id. at 425.

“In short, the case

law has set forth few limits on the type of evidence which might
suffice to establish a prima facie showing of causation.”

Id.

In September of 2015, Case decided to remove two positions
from the organizational chart, one of which was Plaintiff’s.
(Pl. SOMF at ¶12).

This decision came as part of an

organizational restructuring and work force reduction plan.
Plaintiff admits as much.

See (Pl. SOMF at ¶¶21-22, 25).

Discussions percolated internally until a termination date was
agreed upon.

Months after those decisions had been made, in

December 2015, Plaintiff informed Newcombe that a female
employee would sue if fired because she allegedly faced sexual
harassment while at work.

(Pl. SOMF at ¶¶45-47).

Plaintiff was

terminated from employment in January 2016, consistent with
Defendant’s long-standing plan.

While his termination was made

in close temporal proximity to his reporting of potential sexual
harassment, there appears to be little, if any connection
between Plaintiff’s reporting and his termination.

Indeed,

Plaintiff concedes Defendant was planning to lay him off as
early as 2015.
Additionally, Plaintiff has not identified evidence
suggesting ongoing animus towards him.
16

Instead, the undisputed

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facts suggest the opposite.

Defendant delayed Plaintiff’s

termination on two occasions, extending two separate courtesies:
(1) permitting Plaintiff to claim a full bonus and (2) delaying
Plaintiff’s termination until he returned from vacation.

These

facts hardly suggest Plaintiff was treated unfairly.
As such, this Court finds Plaintiff unable to satisfy this
final element of a prima facie showing.

Even assuming, however,

that Plaintiff states a prima facie case of retaliation,
Plaintiff’s claim would still fail.
B. Defendant Has Articulated A Legitimate, NonRetaliatory Reason For Terminating Plaintiff and
Plaintiff Has Not Presented Evidence Proving
Defendant’s Reason Is Pretextual
Defendant says it terminated Plaintiff as part of a force
reduction; the record fully supports that assertion.

Plaintiff

does not identify sufficient evidence to suggest Defendant’s
stated basis was pretextual.

Instead, Plaintiff recognizes that

he was on the proverbial chopping block for nearly a year before
he was fired, and months before he ever reported potential
sexual harassment to Defendant.

Moreover, the record

establishes Defendant showed no animosity towards Plaintiff.
Where Defendant could have initiated Plaintiff’s termination in
2015, it waited until 2016 to afford Plaintiff an opportunity to
earn his full bonus.

In light of these facts, Defendant is

entitled to summary judgment.

See Wood v. Univ. of Pittsburgh,

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395 F. App’x 810, 815–16 (3d Cir. 2010) (affirming district
court’s grant of summary judgment on a Title VII retaliation
claim where defendant established it fired plaintiff as part of
a workforce reduction and where plaintiff could not identify
evidence suggesting defendant’s reason was pretextual).
C. Because Plaintiff’s Retaliation Claim Fails, So Too
Must Plaintiff’s Aiding and Abetting Claim
The “LAD holds individuals liable for their actions in
aiding and abetting violations of an individual’s rights rather
than simply imputing general liability to the employer for the
employees’ acts.”

Lopez-Arenas v. Zisa, No. 10-2668, 2012 WL

933251, at *10 (D.N.J. Mar. 19, 2012).

There are two forms of

aiding and abetting under NJLAD: an active form and a passive
form.

Id.

To establish the active form, three elements must be

proven:
(1) the party whom the defendant aids must perform a
wrongful act that causes an injury; (2) the defendant
must be generally aware of his role as part of an overall
illegal or tortious activity at the time that he provides
the assistance; (3) the defendant must knowingly and
substantially assist the principal violation.
Hurley v. Atl. City Police Dep’t, 174 F.3d 95, 127 (3d Cir.
1999).

To establish the passive form, “a plaintiff must show

that the supervisor holds a duty to act against harassment and
yet remains deliberately indifferent to its existence.”
Arenas, 2012 WL 933251, at *10.

Lopez-

Under the passive theory, the

employer remains the principal violator for its failure to
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prevent or redress the harassing actions of its supervisors.
Id. (citations omitted).
Having found Defendant did not commit an actionable
violation or “wrongful act,” its employees cannot be found
liable for aiding and abetting.

See Hurley, 174 F.3d at 127;

Lopez-Arenas, 2012 WL 933251, at *10.
CONCLUSION
For the reasons expressed above, Plaintiff’s motion to have
its RFA responses deemed served within time (ECF No. 67) will be
granted and Defendant’s motion for summary judgment (ECF No. 64)
will be granted.

Such resolves this matter in its entirety.

An appropriate Order will be entered.

Date: July 27, 2020
At Camden, New Jersey

s/ Noel L. Hillman______
NOEL L. HILLMAN, U.S.D.J.

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