MARGIE FLORES JONES v. MEGAN J.BRENNAN

Filing 28

OPINION. Signed by Judge Noel L. Hillman on 4/16/2019. (rss, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

MARGIE FLORES JONES,
Plaintiff,
v.

Civil No. 17-1056 (NLH/JS)

MEGAN J. BRENNAN, POSTMASTER
GENERAL, U.S. POSTAL SERVICE,

OPINION

Defendant.

APPEARANCES:
JOSÉ LUIS ONGAY
527 COOPER STREET
CAMDEN, NJ 08102
Attorney for Plaintiff Margie Flores Jones.
DANIEL J. GIBBONS
OFFICE OF THE UNITED STATES ATORNEY
970 BROAD STREET
SUITE 700
NEWARK, NJ 07102
Attorney for Defendant Megan J. Brennan, Postmaster
General, U.S. Postal Service.

HILLMAN, District Judge
This case concerns allegations of employment discrimination
on the basis of age, sex, race, and national origin.

Presently

before the Court is Defendant Megan Brennan’s Motion for Summary
Judgment and Plaintiff’s Motion to Amend her Amended Complaint.
1

For the reasons expressed below, the Court will grant
Defendant’s Motion for Summary Judgment and deny Plaintiff’s
Motion to Amend.
BACKGROUND
The Court takes its facts from the parties’ statements of
material facts.

The Court will note relevant disputes.

Plaintiff Margie Flores-Jones was a Level 20 Postmaster at
the Glassboro, New Jersey Post Office in 2008 when she applied
for a Level 22 Postmaster position at the Vineland, New Jersey
Post Office.

Plaintiff is a Puerto Rican woman who was 56 years

old at the time of her application.

Up to that point, Plaintiff

had a 38-year career with the Postal Service.

During that time,

she had served as postmaster of Maple Shade, New Jersey;
Glassboro; Wilmington, Delaware and Vineland (serving there for
approximately nine years).

Although the Court will not list

them, the Court notes Plaintiff received numerous awards for her
work and has had an admirable career of public service to the
Postal Service.
Plaintiff was not the only applicant.

She was one of

three, which included Daniel Herzog (white, male, and 52 years
old at the time of application) and Raymond Goss.

Both of the

other applicants also had long, successful careers with the
Postal Service, with Herzog serving for 32 years at the time and
Goss for 23 years.

All three individuals were interviewed by
2

Post Office Operations Manager, Denise Mason (“POOM Mason”), and
District Manager, Joanna Korker (“DM Korker”).

The interviews

took place on September 10 and 15, 2008.
POOM Mason selected Herzog for the position and DM Korker
concurred in the selection. 1

POOM Mason contemporaneously

drafted a memorandum that explained her reasoning for the
selection of Herzog and generally summarized the qualifications
of each applicant, their performance in the interviews, and the
reasons for her selection (the “Selection Memo”). 2

The Selection

Memo stated the following concerning Plaintiff:
Margie Flores Jones has been with the postal service for
38 years. She is the Postmaster of Glassboro NJ EAS20.
Margie holds a master’s degree from Marymount
University and she stated in her interview that she is
currently working on her Doctorate Degree. Margie was
well spoken during the interview however she could not
answer questions related to EXFC grouping reports, the
district’s current performance in EXFC and last mile
failures. Margie could not answer questions related to
the assumptions that go into the calculation nor could
she answer how dps factors into the cdpom calculation.
When asked how Vineland was doing in cdpom Margie did
not know and began to fumble through her papers. Margie
was previously the Postmaster of Vineland until she left
that position in August 2006. When Margie left Vineland
she was 3.2% over plan and 2.0% over sply ytd in function
1

Plaintiff disagrees that it was solely POOM Mason who selected
Herzog for the position, stating that DM Korker “participated in
the decision.” (Pl.’s SOMF ¶¶ 4-7.) As discussed infra, this
is not a material dispute of fact.
2

Plaintiff disagrees that the memorandum fully and accurately
explains Plaintiff’s qualifications and asserts Plaintiff was
better qualified than Herzog. (Pl.’s SOMF ¶¶ 7-8.) Defendant
does not dispute that Plaintiff was qualified for the position.
3

2. She was .5% over plan and .7% to sply ytd in function
4. She ended the year 1.1 % over plan and 5.2% over
sply in salaries and benefits.
When she arrived in
Glassboro the office was 3.3% to plan and -.7% to sply
ytd in function 2. Function 4 was .7% to plan and -3.2%
to sply ytd. Currently in Glassboro Margie is 2.5% over
plan and -.5% to sply ytd in function 2.
She is .9%
over plan and -3.8% to sply ytd in function 4[.] When
Margie arrived the TOE in Glassboro was -1.8% to plan
and a cell 13 on the NPA. Currently the office is .6%
over plan and a cell 3 NPA. This has resulted in the
overall score for the office to decrease from 8.40 to
3.80.
Margie provided an incorrect assessment of the
overall VOE score in Vineland she stated that the office
was currently at 56.3 ytd when in fact they are at 61.9
ytd. She also stated that Glassboro’s VOE has increased
since her arrival however it has decreased from 68.8 to
67.9. Margie provided an incorrect assessment of the
revenue for Vineland, she stated that it was down
$159,172.00.
Her response was far above the actual
amount. She stated that TOE was an area of opportunity
when in fact the office is currently trending positively
by .7%. When asked why I should select you Margie talked
about her education and just reiterated what was on her
application. Margie did not visit the office prior to
the interview. 3
POOM Mason let Plaintiff know of her decision on September 19,
2008 via telephone and followed up with a letter formally
memorializing the decision on October 1, 2008.
On December 31, 2008, Plaintiff filed a complaint with the
Equal Employment Opportunity Commission (“EEOC”) alleging that
she had not been selected for the position because of her age,

3

The Selection Memo references many internal post office
statistics by acronym. The Court will explain them as relevant
to the arguments made by the parties, infra.
4

race, and national origin. 4

A hearing was held before

Administrative Judge Julie Procopiow Todd (“AJ Todd”) on June 11
and 18, 2013 on these claims.

A sex discrimination claim was

not included in her complaint but was referenced in a written
closing argument made after the hearing and again on
administrative appeal.
After concluding administrative proceedings, Plaintiff
brought her claims in this Court by complaint on February 16,
2017.

Plaintiff filed claims under Title VII for race, national

origin, 5 and sex discrimination and under the ADEA for age
discrimination.

She amended the complaint on February 28, 2017

and Defendant answered on May 12, 2017.

Discovery ensued.

On June 21, 2018, Defendant filed the instant Motion for
Summary Judgment.

Plaintiff responded and filed a Motion to

Amend the Amended Complaint on August 20, 2018.

Both motions

are fully briefed and ripe for adjudication.

4

Plaintiff also asserted the decision was in retaliation for
previous complaints she had made. That is not relevant to this
case because Plaintiff declined to bring that claim in this
Court.
5

Puerto Ricans can assert a national origin claim even though
they are American citizens by birth. In re Chiang, 385 F.3d
256, 269 (3d Cir. 2004) ("We have held, for example, that the
term Puerto Rican can designate national origin for purposes of
a federal discrimination suit . . . .").
5

ANALYSIS
A.

Subject Matter Jurisdiction

This Court possesses jurisdiction over this case pursuant
to 28 U.S.C. § 1331.
B.

Summary Judgment Standard

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.’”
Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004)
(citing Anderson, 477 U.S. at 255).
6

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].’”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001).

For

“the non-moving party[] to prevail, [that party] must ‘make a
7

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.
C.

Anderson, 477 U.S. at 257.
Summary Judgment

Defendant presents three arguments favoring dismissal of
Plaintiff’s claims.

First, Defendant argues Plaintiff’s sex

discrimination claim must be dismissed because this Court does
not possess jurisdiction to adjudicate it.

Second, Defendant

argues that Plaintiff fails to state a prima facie claim for age
discrimination.

Third, Defendant argues Plaintiff has not

established that the legitimate, non-discriminatory reasons for
not promoting Plaintiff were mere pretext.
Before determining the merits of each of these arguments,
this Court will first address Defendant’s second argument
concerning the age discrimination claim.

In her opposition

brief, Plaintiff withdraws her age discrimination claim.
Opp’n Br. 3.)

(Pl.’s

Therefore, this Court will grant Defendant’s

8

request to dismiss this claim. 6

This Court will address the

other two arguments in turn.
a. Whether this Court Possesses Subject Matter
Jurisdiction over the Sex Discrimination Claim
Defendants argue this Court does not possess subject matter
jurisdiction over Plaintiff’s sex discrimination claim and
therefore must dismiss it.

Defendant reasons that Plaintiff has

failed to exhaust her administrative remedies because she never
raised the issue of sex discrimination in her initial complaint
nor was the issue ever accepted by the reviewing agency.
Plaintiff does not directly dispute this point. 7

First,

Plaintiff admits she did not present this argument in her
initial complaint, nor did the agency raise this issue for
review.

(See Pl.’s Mot. to Amend 1 (“[T]his cause of action, as

the Defendant has correctly stated, was not alleged in the
Informal Counseling or the Formal Complaint of Discrimination
filed during the administrative process in the Equal Employment
Opportunity Commission.”).)

Instead, Plaintiff argues the sex

6

Defendant appears to be correct about the state of the law in
this Circuit. If the age difference between a plaintiff and the
individual who took a plaintiff’s spot is less than five years,
a plaintiff cannot legally establish a prima facie case for age
discrimination. (See Def.’s Summ. J. Br. 7-8 (collecting cases
from within this Circuit).)
7

The Court notes that most of this argument is contained in
Plaintiff’s Motion to Amend, which Plaintiff asked this Court to
incorporate by reference into her opposition brief. (Pl.’s
Opp’n Br. 12.)
9

discrimination claim was included “in her written closing
argument at the close of the Administrative Hearing” and “in her
appeal to the Office of Federal Operations.”

Second, Plaintiff

states Defendant has been on notice of this claim because she is
a woman who was subject to an adverse employment decision.

The

import, according to Plaintiff, is that there would be no
prejudice to Defendant to allow this claim to go forward.
The law is clear.

“[A] federal employee seeking redress

for unlawful workplace discrimination . . . must first exhaust
administrative remedies against the federal employer prior to
filing suit in federal court” - here the EEOC.
Donahue, 133 F. Supp. 3d 706, 715 (D.N.J. 2015).

Marley v.
See 42 U.S.C.

§ 2000e-16(c); see also 29 C.F.R. § 1614; Wilson v. MVM, Inc.,
475 F.3d 166, 173 (3d Cir. 2007).

“Failure to exhaust

administrative remedies, while not a jurisdictional defect, is a
ground to dismiss a case for failure to state a claim under
Federal Rule of Civil Procedure 12(b)(6).”

Devine v. St. Luke’s

Hosp., 406 F. App’x 654, 656 (3d Cir. 2011). 8
A federal employee asserting a Title VII claim “must pursue
and exhaust administrative remedies before initiating an action
in federal court.”

Id. at 715 n.16 (citing Williams v. Runyon,

8

Thus, Defendant’s assertion that this is a jurisdictional issue
is incorrect. Ultimately, this does not affect the decision of
the Court, but merely the basis for it.
10

130 F.3d 568, 573 (3d Cir. 1997)) (emphasis added).

Courts have

been clear concerning what steps must be taken to successfully
exhaust administrative remedies.

Exhaustion requires, in part,

the filing of a “formal complaint with the EEOC.”
29 C.F.R. § 1614.106).

Id. (citing

But, exhaustion requires not only

consideration of whether a complaint was filed, but which claims
were included.

To determine what claims have been

administratively exhausted, the Third Circuit directs district
courts to consider “the scope of the EEOC investigation which
can reasonably be expected to grow out of the charge of
discrimination.”

Barzanty v. Verizon Pa., Inc., 361 F. App’x

411, 414 (3d Cir. 2010) (citing Hicks v. ABT Assoc., Inc., 572
F.2d 960, 966 (3d Cir. 1978)).
In other words, the “permitted scope of the lawsuit is any
claim that should have been included in a reasonable
investigation conducted by the EEOC, based upon the information
contained in the [c]harge.”

Carr v. New Jersey, No. 09-913

(WJM), 2010 U.S. Dist. LEXIS 59987, at *9 (D.N.J. June 17, 2010)
(citing Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 398-99
(3d Cir. 1976)).

When a plaintiff does not include a claim in

her EEOC complaint, that plaintiff has failed to exhaust
administrative remedies as to that claim and that claim must be
dismissed.

Green v. Potter, No. 08-597 (JBS/KMW), 2010 U.S.

Dist. LEXIS 62959, at *25-26 (D.N.J. June 23, 2010).
11

Plaintiff’s sex discrimination claim fails under this test.
Plaintiff did not check the box for discrimination on the basis
of sex in her original EEOC charge.

There was no other

indication in the facts disclosed that Plaintiff’s sex was a
motivating factor in any adverse action taken. 9

Plaintiff did

request an amendment, but never requested a sex discrimination
claim be added.

When she was told in March 2009 which claims

were accepted by the EEOC for investigation, Plaintiff did not
state that sex discrimination was inadvertently left out or
should be included.

In fact, it was not until the investigation

was over and all evidence was submitted at the hearing that
Plaintiff first asserted a sex discrimination claim – and even
then, it was merely mentioned in passing.

Sex discrimination

was not included in the charge, nor is that surprising since
there is no record evidence to support such a claim.
Plaintiff’s unexhausted and unsupported sex discrimination claim
will be dismissed.
Plaintiff requests this Court grant her Motion to Amend her
amended complaint.

Plaintiff argues she should be allowed to

amend her amended complaint because it will not cause undue
delay, is not in bad faith, and there will be no prejudice to

9

The Court notes the sex of both Plaintiff and Herzog was
mentioned in different filings before the EEOC, but there was
never an indication from Plaintiff that she believed this played
a part in the decision not to select her for the position.
12

Defendant.

Plaintiff does not present any new facts which would

change the facts discussed and found dispositive, supra.

What

Plaintiff does not explain – and Defendant rightfully points out
– is why Plaintiff would request to amend her complaint to state
a claim which is already stated.

To ask the question is to

answer it.
Regardless, this Court will deny Plaintiff’s motion.
Generally, leave to amend is freely granted “when justice so
requires,” but may be denied where there is “undue delay, bad
faith or dilatory motive on the part of the movant, repeated
failure to cure deficiencies by amendments previously allowed,
undue prejudice to the opposing party by virtue of allowance of
the amendment, [or] futility of the amendment.”
371 U.S. 178, 182 (1962).

Foman v. Davis,

Amendment is futile if it “is

frivolous or advances a claim or defense that is legally
insufficient on its face.”

Harrison Beverage Co. v. Dribeck

Imps., Inc., 133 F.R.D. 463, 468 (D.N.J. 1990) (citations
omitted) (internal quotations marks omitted).
Amendment would be futile because no amendment could cure
the defect which occurred at the preceding administrative stage.
Plaintiff has presented no indication in her motion what new
allegations, if any, would be included in a new complaint that
could possibly alter the Court’s course.

Because amendment in

this case would be futile, whether there is delay, bad faith, or
13

prejudice is irrelevant.

Accordingly, this Court will grant

Defendant’s Motion for Summary Judgment on this point and deny
Plaintiff’s Motion to Amend.
b. Whether Plaintiff has Established Pretext
Defendant argues Plaintiff has not established pretext
which warrants dismissal of both the remaining claims, race and
national origin.

Defendant’s argument essentially boils down to

one point: Plaintiff’s only argument – and evidence – merely
reflects her subjective belief that she was a better candidate
for the position, not that she was discriminated against.

This,

Defendant asserts, is insufficient to allow these claims to
survive summary judgment because the test is not whether
Defendant made a bad business decision, but whether there was a
discriminatory motive in non-selection.
The rest of the arguments made by Plaintiff, Defendant
claims, are irrelevant for other reasons.

Plaintiff disagrees,

pointing to alleged factual inconsistencies in the Selection
Memo and credibility issues of Defendant.

The Court agrees with

the Defendant.
i. Defendant’s Legitimate, Non-Discriminatory Reason
The parties agree this case must be decided under the
McDonnell Douglas framework, as no direct evidence of
discrimination has been presented.

Defendant does not dispute

that Plaintiff has shown a prima facie case for both the race
14

and national origin claims.

Thus, the Court is left to examine

the legitimate non-discriminatory reason provided and whether
Plaintiff can show it is mere pretext.

First, the Court

addresses the proffered legitimate, non-discriminatory reason.
Defendant claims the reason Herzog was selected over Plaintiff
was based on an examination of each candidate’s experience and
education, interview performance, and job performance based on
postal statistics.

POOM Mason summarized this in the Selection

Memo.
It does not appear that Plaintiff disputes that Defendant
has met its burden of production here.

Under the law,

[t] he employer satisfies its burden of production by
introducing evidence which, taken as true, would permit
the conclusion that there was a nondiscriminatory reason
for the unfavorable employment decision . . . . The
employer need not prove that the tendered reason
actually motivated its behavior, as throughout this
burden-shifting paradigm the ultimate burden of proving
intentional discrimination always rests with the
plaintiff.
Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (emphasis in
original) (citations omitted).

Regardless of Plaintiff’s

position, the Court finds Defendant has met its burden of
production as, if taken as true, Defendant has provided a
legitimate, non-discriminatory reason for not selecting
Plaintiff.

15

ii. Overview of Plaintiff’s Arguments and Controlling
Law
Although Plaintiff does not argue Defendant has not
provided a legitimate, non-discriminatory reason for her nonselection, Plaintiff does claim that this reason is pretextual.
Generally, the Third Circuit has held:
to defeat summary judgment when the defendant answers
the plaintiff’s prima facie case with legitimate, nondiscriminatory reasons for its action, 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
determinative cause of the employer’s action.
Fuentes, 32 F.3d at 764.

A plaintiff’s evidence must “allow a

factfinder reasonably to infer that each of the employer’s
proffered non-discriminatory reasons . . . was either a post hoc
fabrication or otherwise did not actually motivate the
employment action (that is, the proffered reason is a pretext).”
Id. (citations omitted).

To show pretext, the relevant standard

requires Plaintiff to:
“demonstrate
such
weaknesses,
implausibilities,
inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action
that a reasonable factfinder could rationally find them
‘unworthy of credence.’” Fuentes, 32 F.3d at 765. In
simpler terms, he must show, not merely that the
employer’s proffered reason was wrong, but that it was
so plainly wrong that it cannot have been the employer’s
real reason.
Keller v. Orix Credit All., 130 F.3d 1101, 1109 (3d Cir. 1997)
(emphasis added).
16

Plaintiff makes the following arguments concerning pretext:
•

Certain performance statistics cited in the Selection Memo
should not have been considered a performance problem by
Defendant;

•

The subjective impressions of Plaintiff’s interview
performance in the Selection Memo do not match Plaintiff’s
impression of her own performance;

•

Certain negative performance statistics were not within
Plaintiff’s control;

•

POOM Mason declined to discuss her reasons for not
selecting Plaintiff for the position with a third-party,
Evelyn Hunter;

•

There is an inconsistency in the record over whether POOM
Mason or DM Korker was the so-called selecting official;

•

Herzog did not have the training the Selection Memo
asserted he had;

•

Plaintiff answered questions correctly which the Selection
Memo stated were incorrectly answered;

•

One of Plaintiff’s performance statistics was not correctly
cited in the Selection Memo, to the detriment of Plaintiff;
and

17

•

Plaintiff had to contact a third-party, Frank Murphy, in
order to schedule her interview, while the other candidates
were contacted to schedule an interview date and time.

The Court will examine these arguments below.
iii. Plaintiff’s Arguments Not Legally Supportive of
Pretext
Defendant argues the majority of Plaintiff’s arguments fall
within a category of arguments that are insufficient to rebut a
legitimate, non-discriminatory reason for an employer’s action.
Defendant argues a “plaintiff cannot simply show 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.

In other words, “it is

not th[e] court’s role to second-guess an employer’s business
judgment as to who is more qualified for the job.”

Dungee v.

Ne. Foods, 940 F. Supp. 682, 689 (D.N.J. 1996) (citing Branson
v. Price River Coal Co., 853 F.2d 768, 772 (10th Cir. 1988)).
Cf. Ezold v. Wolf, Block, Schorr and Solis-Cohen, 983 F.2d 509,
528 (3d Cir. 1993) (“[P]retext is not established by virtue of
the fact that an employee has received some favorable comments
in some categories or has, in the past, received some good
evaluations.”).

18

Defendants are correct.

What Plaintiff would have the

Court do is deconstruct the Selection Memo and substitute its
own judgment for the Defendant’s subjective analysis of the
Plaintiff’s experience, postal statistics, and interview
performance.

Whether specific performance statistics should

have been considered a “performance problem” asks this Court to
second-guess Defendant’s business decision, which it cannot do. 10
Similarly, whether Plaintiff believes her interview performance
was better than noted is just another variety of this same type
of impermissible argument. 11
Defendant argues Plaintiff’s citation to extenuating
circumstances for poor postal statistics does not support a

10

Plaintiff makes these arguments in attacking what she has
termed Defendant’s Fifth, Seventh, Eighth, Eleventh, and Twelfth
Reasons for Non-Selection. (Pl.’s Opp’n Br. 27, 28-29, 31-33.)
Plaintiff also makes this type of argument, on different grounds
in two other parts of her brief concerning her performance in
Glassboro and her qualifications. (Pl.’s Opp’n Br. 38-40.)
11

Plaintiff makes these arguments in her First and Tenth Reason
for Non-Selection. (Pl.’s Opp’n Br. 24-25, 30-31.) Plaintiff
also makes argument concerning her performance at Glassboro and
her “alleged poor interview.” (Pl.’s Opp’n Br. 40-41.)
Moreover, the case law is clear that an employer’s subjective
impression of an individual’s interview performance is
appropriate in a selection decision – and may even serve as the
sole basis for such a decision. See Conner v. LaFarge N. Am.,
Inc., 343 F. App’x 537, 542 (11th Cir. 2009) (finding that
solely deciding selection based on interview performance is not
evidence of pretext); Johnson v. Penske Truck Leasing Co., 949
F. Supp. 1153, 1176 (D.N.J. 1996) (“How an employee presents
himself or herself at an interview is often a determining factor
in awarding a position.”).
19

finding of pretext.

The Court finds Plaintiff’s arguments

concerning her inability to control certain statistics is
inapposite.

The Third Circuit was confronted with similar

arguments in Keller v. Orix Credit Alliance, 130 F.3d 1101 (3d
Cir. 1997).

In that case, the Third Circuit analyzed whether an

individual’s inability to reach a $1.5 million funding goal due
to factors beyond his control could be used to satisfy the first
prong of the Fuentes test.

Id. at 1109-1110.

There, the Third

Circuit found the question posed was “not whether [plaintiff]
could have done better” but “whether the evidence shows that it
was so clear that [plaintiff] could not have done better that
[defendant] could not have believed otherwise.”

Id. at 1109.

In this case, no evidence has been presented by Plaintiff that
shows it was so clear Plaintiff could not have done better that
Defendant could not have believed otherwise.

Those arguments do

not support pretext. 12
Finally, this Court addresses arguments Defendant asserts
do not fit into either of the two Fuentes prongs, making them
legally inapplicable, or which the Court finds are unsupported
by the record.

As explained supra, if the evidence does not

12

Plaintiff makes these arguments in her Fourth, Sixth, and
Ninth Reason for Non-Selection. (Pl.’s Opp’n Br. 24-25, 30-31.)
Plaintiff also makes similar arguments stating that the total
office expense at Glassboro and her failure to transfer two
postal carriers who had their routes eliminated was out of her
control. (Pl.’s Opp’n Br.37-38.)
20

show the proffered legitimate reason is unworthy of credence or
that discrimination was the motivating cause in not selecting
Plaintiff in this case, then the evidence is irrelevant to a
decision on pretext.

Plaintiff presents three arguments.

The

Court will address each in turn.
First, Plaintiff argues that an individual named Evelyn
Huntley called POOM Mason after Plaintiff was not selected and
that POOM Mason would not discuss the reasons for her nonselection of Plaintiff.

This does not support pretext, as it

does not challenge the proffered reason or tend to show
discrimination was the motivating factor.

In fact, it seems to

the Court somewhat odd that Plaintiff would expect POOM Mason to
discuss Plaintiff’s candidacy with anyone other than her and
those directly involved in the selection process.

To do

otherwise would be at best a breach of protocol and worse a
breach of privacy.
Second, Plaintiff argues there is an inconsistency in the
testimony of POOM Mason and DM Korker concerning which one of
them was the so-called “selecting official.”

It appears clear

from the Selection Memo that POOM Mason made the selection and
that DM Korker concurred in the selection.

This fits entirely

with the testimony as described by Plaintiff.

The Court finds

this does not support pretext because it addresses neither of
the Fuentes prongs.
21

Finally, Plaintiff argues the Selection Memo incorrectly
stated that Herzog had “extensive knowledge of DPS Processing.”
To support this assertion, Plaintiff cites Herzog’s 991, 13 which
Plaintiff claims shows he had not taken a course in DPS
processing.

Plaintiff admits, however, that Herzog had four

months of experience with DPS processing while he was the
Officer-in-Charge (“OIC”) at the Vineland Post Office.

The

record evidence shows that Herzog received this training, even
though a certificate was not entered into evidence, because POOM
Mason stated Herzog received this training.
cite record evidence to the contrary.

Plaintiff does not

Thus, this argument fails

to show pretext.
Accordingly, the Court finds the arguments cited here
cannot legally factor into its pretext analysis.
iv. Plaintiff’s Other Arguments Concerning Pretext
The Court now turns to Plaintiff’s remaining arguments
regarding pretext.

Plaintiff asserts, and the record supports,

some disagreement between Plaintiff’s memory of the interview
and its description in the Selection Memo as well as one
incorrectly cited postal statistic.

13

Additionally, Plaintiff

The 991 referenced appears to be Herzog’s application for the
Vineland Postmaster position. As such, it does not necessarily
include all of Herzog’s credentials.
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asserts there was a difference between her and other candidates
in scheduling interviews.
First, the Court considers Plaintiff’s interview and the
postal statistic.

Plaintiff asserts she did answer questions

concerning City Delivery Pivoting Opportunity Module (“CDPOM”)
and Delivery Point Sequencing (“DPS”) and knew Vineland’s CDPOM
number.

(Pl.’s Opp’n Br. 25.)

But, the Selection Memo states:

“Margie could not answer questions related to the assumptions
that go into the calculation nor could she answer how dps
factors into the cdpom calculation” and “[w]hen asked how
Vineland was doing in cdpom Margie did not know and began to
fumble through her papers.”

The Selection Memo also states that

when Plaintiff left her position as Vineland Postmaster, she was
1.1% over budget in salaries and benefits.

She was only 0.6%

over budget.
Second, Plaintiff states that she was not scheduled for an
interview but had to ask an individual named Frank Murphy to
contact the individuals scheduling interviews to ensure she
received one.

The others interviewed were contacted to schedule

the date and times of their interviews.
As stated supra, Fuentes guides this Court’s analysis as to
whether these two items, individually, collectively, or in light
of all the evidence, support a finding of pretext sufficient to
defeat summary judgment.

The Court may only allow Plaintiff’s
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claims to proceed past summary judgment if this Court finds a
reasonable jury could either disbelieve Defendant’s legitimate,
non-discriminatory reason or believe invidious discrimination
was the real reason for the non-selection decision.

To be

clear, a reasonable jury must believe “not merely that the
employer’s proffered reason was wrong, but that it was so
plainly wrong that it cannot have been the employer’s real
reason.”

Keller, 130 F.3d at 1109 (emphasis added).

Considering the evidence presented in opposition, the Court
concludes summary judgment is appropriate.

The Court finds the

minor disagreements between Plaintiff’s testimony at the
administrative hearing and the Selection Memo do not show
Defendant’s legitimate, non-discriminatory reason was “so
plainly wrong” that a reasonable jury could find it could not
have been the real reason.

Additionally, the Court finds the

fact that Plaintiff was required to work through an intermediary
to schedule her interview while the other candidates were
contacted directly cannot allow this case to proceed past
summary judgment.

This assertion, devoid of any other evidence

suggesting discrimination, is not sufficiently serious nor a
gross enough deviation to show pretext.
Taken together, this Court finds that the evidence
presented by Plaintiff supporting pretext could not convince any
reasonable juror that the proffered reasons for non-selection
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were unworthy of credence.

The Court agrees with Defendant: at

its core, this case is founded on Plaintiff’s subjective belief
that she was better qualified and performed better in her
interview than Herzog.

That argument is simply inapplicable to

a pretext analysis and cannot support a finding of
discrimination.

On that basis, the Court cannot and will not

second-guess Defendant’s business decision.

Thus, there is no

dispute of material fact that would allow this case to proceed
past summary judgment.
CONCLUSION
For the reasons stated herein, this Court will grant
Defendant’s Motion for Summary Judgment and deny Plaintiff’s
Motion to Amend.
An appropriate Order will be entered.

Date: April 16, 2019
At Camden, New Jersey

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

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