GULATI v. CHAO

Filing 34

OPINION. Signed by Judge Renee Marie Bumb on 9/23/2019. (tf, )

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

ALOK GULATI,
HONORABLE RENÉE MARIE BUMB
Plaintiff,
v.

Civil Action
No. 17-6271 (RMB/AMD)

ELAINE L. CHAO, Secretary of
the United States Department
of Transportation,

OPINION

Defendant.

APPEARANCES:
Hanan M. Isaacs, Esq.
HANAN M. ISAACS, P.C.
601 Ewing Street, Suite C-12
Princeton, New Jersey 08540
Attorney for Plaintiff
Craig Carpenito, United States Attorney
By: Anne B. Taylor, Assistant U.S. Attorney
401 Market Street, 4th Floor
P.O. Box 2098
Camden, New Jersey 08101
Attorneys for Defendant
BUMB, District Judge:
I.

INTRODUCTION
Plaintiff

Alok

Gulati

(“Plaintiff”)

filed

this

lawsuit

against the United States Secretary of Transportation, Elaine L.
Chao, (“Defendant”), alleging employment discrimination based on
Plaintiff’s

race,

religion,

and

national

origin

and

for

retaliation and a hostile work environment under Title VII of the

Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et. seq.
(“Title VII”).
Before the Court is Defendant’s motion for summary judgment
on all claims, pursuant to Fed. R. Civ. P. 56. [Docket Item 16.]
Plaintiff opposes the motion [Docket Item 21], and Defendant has
submitted a reply brief. [Docket Item 30.] For the reasons set
forth below, the Court will grant Defendant’s motion in part and
deny it in part.
II.

BACKROUND1
Plaintiff has worked as an engineer for the Federal Aviation

Administration (“FAA”), a division of the United States Department
of Transportation, since at least June of 1994 in the William J.
Hughes Technical Center (“Tech Center”) in Atlantic City, New
Jersey. Plaintiff self-identifies as an Asian man who was born in
India and who practices the Hindu religion. Eduardo Colon-Madera,
one of Plaintiff’s coworkers during the times relevant to this
suit, self-identifies as a Hispanic, Puerto Rican man and a

1

For purposes of the instant motion and pursuant to Local Civil
Rule 56.1, the Court looks to the Complaint [Docket Item 1] when
appropriate, Defendants’ Statement of Undisputed Material Facts
(“Def.’s SMF”) [Docket Item 16-1], Plaintiff’s Response to
Defendants’ Statement of Undisputed Material Facts (“Pl.’s RSMF”)
[Docket Item 19], Plaintiff’s Counterstatement of Undisputed
Material Facts (“Pl.’s CSMF”) [Docket Item 20], and Defendants’
Reply to Plaintiff’s Counterstatement of Undisputed Material Facts
(“Def.’s Reply to Pl.’s CSMF”) [Docket Item 30-1], and related
exhibits and documents. The Court distills this version of the
record in the light most favorable to Plaintiff, the non-moving
party.
2

Catholic. Radame Martinez, who supervised both Plaintiff and Mr.
Colon-Madera at the Tech Center during the times relevant to this
suit, self-identifies as a white, Hispanic man who was born in
Puerto Rico and who is a non-practicing Catholic.2
A.

The Level 14 Position Application Process

On May 20, 2009, the FAA posted two vacancy announcements for
a single new position at the Tech Center to oversee a “Voice over
Internet Protocol” (“VOIP”) test and evaluation project, which
would be paid at the General Schedule Level 14 paygrade (“the Level
14 position”).3 The vacancy announcements were written by Mr.
Martinez, who would serve as the selecting official for the Level
14 position. The vacancy announcements delineated four areas of
“Knowledge, Skills and Abilities” (“KSAs”) for which applicants
were requested to provide specific information. The four KSAs
included for the Level 14 position were:
1.
2.
3.

4.

Knowledge of data and voice communication networks;
Ability to lead technical projects and teams;
Ability to apply FAA approved test and evaluation
methodologies to communication networks test programs;
and
Ability to communicate effectively.

2

The parties dispute whether Plaintiff, Mr. Colon-Madera, and Mr.
Martinez were aware of each other’s respective religious
affiliations during the relevant time period. (See Def.’s SMF
[Docket Item 16-1], ¶¶ 86-96; Pl.’s RSMF [Docket Item 19], ¶¶ 8696.)
3

Though never specifically addressed in the parties’ various
statements of undisputed fact, both parties acknowledge at various
points in their papers that the Level 14 position would represent
a promotion for both Plaintiff and Mr. Colon-Madera.
3

Applications for the Level 14 position were due on June 17, 2009
and initial review of the application packets was undertaken by
the Tech Center’s Human Resources Department (“HR”). On July 6,
2009, HR sent Mr. Martinez a list of those applications that met
the minimum requirements of the Level 14 position. Both Plaintiff’s
and Mr. Colon-Madera’s applications were included on HR’s list.
FAA’s policy regarding promotions at the time of the events in
question did not require a selecting official to convene an
interview panel or to interview any of the applicants as part of
the decision-making process. Mr. Martinez did not convene such a
panel or conduct any interviews of the applicants. After evaluating
the applications remaining after HR’s initial review, Mr. Martinez
reviewed each applicant’s responses to each KSA listed in the
vacancy announcements and assigned each KSA in each application an
evaluation of “superior,” “satisfactory,” or “barely acceptable”
and included a brief written rationale therefor. Mr. Martinez
assigned an evaluation of “satisfactory” for all four KSAs in
Plaintiff’s application. Mr. Martinez assigned Mr. Colon-Madera
evaluations of “superior” for KSAs 1 and 2 and “satisfactory” for
KSAs

3

and

determined
recommended

4.

After

scoring

the

that

Mr.

Colon-Madera

him

for

the

position.

applications,
had
A

the

Mr.

highest

senior

Martinez

score

official

at

and
FAA

headquarters then approved Mr. Colon-Madera’s promotion, which

4

became effective on August 25, 2009. Plaintiff learned that he was
not selected for the Level 14 position on or about August 27, 2009.
B.

Plaintiff’s EEO Complaint

On October 5, 2009, Plaintiff contacted a Department of
Transportation Equal Employment Opportunity (“EEO”) counselor. On
February 4, 2010, Plaintiff filed a two-count formal EEO complaint,
alleging the following:
1.

[Plaintiff]
alleges
that
the
[Department
of
Transportation] discriminated against him on the bases
of race (Asian), national origin (India), and religion
(Hindu) when, on either August 27, 2009, or August 28,
2009, the [Department of Transportation] nonselected
[Plaintiff] for [the Level 14 position].

2.

[Plaintiff]
alleges
that
the
[Department
of
Transportation] discriminated against him on the bases
of race (Asian), national origin (India), and religion
(Hindu) (and for the incidents after September 11, 2009,
reprisal for prior protected EEO activity) when, on a
continuing basis from July 2007 through to the present,
the [Department of Transportation] subjected [Plaintiff]
to a hostile work environment, including--but not
limited to--the following exemplary incidents:
a.

Between July and September 2007, Radame Martinez
([Plaintiff’s]
1st
level
supervisor)
denied
[Plaintiff’s] requests to attend management staff
meetings while permitting a coworker to attend.

b.

In August 2007, Mr. Martinez denied [Plaintiff’s
request to attend Executive Leadership (ELP)
training while permitting a coworker to attend.

c.

In March 2008, Mr. Martinez failed to provide
precise schedule information for a meeting, then
reprimanded [Plaintiff] for missing the meeting,
accusing [Plaintiff] without substantiation of
being absent from work.

d.

In June 2008, Mr. Martinez accused [Plaintiff]
without substantiation of being absent from work,
and declared to [Plaintiff], “you will never

5

change, this is why I don’t trust you and don’t
want you in my group!”
e.

In February 2009, Eduardo Madera (a team lead on
certain projects on which [Plaintiff] works)
initially denied [Plaintiff’s] request to attend
and participate in a VOIP test demo, only finally
permitting him to attend when a scheduled attendee
was injured at the last minute;

f.

In April 2009, Mr. Martinez only permitted
[Plaintiff] to attend Interconnecting Cisco Network
Devises training through commuting from his
residence to King of Prussia, PA every day for a 5day training, while permitting coworkers to attend
the same class that same year in Atlanta, GA and
New York City, NY with full lodging and other per
diem benefits;

g.

On June 17, 2009, Mr. Martinez told [Plaintiff],
“Aren’t all you Indians doctors, lawyers, motel &
gas station owners?”

h.

Mr. Martinez excluded [Plaintiff] from formally
participating as a presenter in a July 2009 highlevel briefing on VOIP issues with [Tech Center]
Director Wilson Felder;

i.

In September or October 2009, Mr. Martinez excluded
[Plaintiff] from the VHF/UHF Radio Specifications
Workshop Meeting;

j.

In August 2009, Mr. Martinez and/or Mr. Madera
refused to act on [Plaintiff’s] request to attend
ISO Project Management Training;

k.

On October 2, 2009, Mr. Martinez falsely accused
[Plaintiff] of being late, forcing [Plaintiff] to
expend an hour of annual leave under express threat
of being held AWOL, yelling at [Plaintiff] in the
process; and

l.

On
October
19,
2009,
Mr.
Martinez
issued
[Plaintiff] a performance evaluation for FY 2009
which
contained
unsubstantiated
derogatory
comments
regarding
[Plaintiff’s]
performance
during FY 2009.

Plaintiff later amended his EEO complaint to include the following
additional allegations:

6

m.

On numerous occasions—including but not limited to
June 25, 2009, April 27, 2010, and July 1, 2010—
your supervisor sent e-mail correspondence in a
restricted format, barring copying, forwarding and
responses.

n.

On or about March 2008, your supervisor denied your
request to serve as VoIP team leader.

o.

From 2005 to present, your supervisor denied you
cash awards and/or time-off awards while granting
such awards to others similarly situated to you.

p.

On May 7, 2009, you were again accused of being
absent from work.

q.

On or around July 2009, your supervisor denied you
the opportunity to serve as ISO team lead.

r.

On or around July 2009, your supervisor denied you
the opportunity to serve as Process Improvement
Coordinator (“PIC”).

s.

On or before May 2010, your supervisor denied you
the opportunity to participate in the ISO effort.

t.

On July 8, 2010, you
from your supervisor
Executive Leadership
apparently calculated
application.

u.

On July 19, 2010, your supervisor responded with
hostility to your request for sick leave, declaring
“that this is becoming a pattern.”

v.

You were excluded from a September 20, 2010 VOIPrelated meeting with Mr. Tran, about which you
learned on or about September 29, 2010.

w.

You received unsubstantiated negative comments in
your October 21, 2010 performance evaluation.

x.

You were ordered by Mr. Colon-Madera to engage in
physical labor with the VOIP team in February 2010
and September 2010 despite previously-disclosed
issues with bad back, and were criticized by Mr.
Colon-Madera for not showing up after giving prior
notice of back issues to Mr. Colon-Madera.

y.

You were disparately denied VISIO software for an
unknown duration, discovered in September 2010.

7

received derogatory comments
on your application for the
Program training, comments
to lead to the denial of your

z.

In August 2010, you were denied ELP training for
2010.

aa.

In October 2010, Mr. Martinez interfered with your
requested office move into a vacant office space
which had been approved by another office on three
occasions.

bb.

On December 20, 2010, you were unjustifiably yelled
at by Mr. Martinez in the workplace and in front of
a contractor.

Administrative Law Judge Julie Procopiow Todd (“ALJ Todd”)
ultimately granted summary judgment in favor of Defendant with
respect to both counts of Plaintiff’s EEO complaint, finding that
Plaintiff “has failed to establish, by a preponderance of the
evidence, that he was discriminated against based on his race,
national

origin,

religion,

and/or

in

reprisal

for

prior

EEO

activity.”4
Plaintiff filed this Complaint on August 18, 2017 [Docket
Item 1].5

After conclusion of discovery, Defendant moved for

summary judgment [Docket Item 16], to which the Court now turns.

4

The parties do not address ALJ Todd’s decision in any of their
statements of undisputed fact. However, Defendant submitted a
portion of ALJ Todd’s decision, including the above quotation, as
an exhibit to her reply brief. (See Decision, Exhibit BB [Docket
Item 30-3], 41-46.) Plaintiff has not indicated any objection to
the authenticity of these portions of ALJ Todd’s decision.
5

Neither party indicates in their papers the date on which ALJ
Todd’s decision was made final. Therefore, for the purposes of
this motion, the Court will assume that the present Complaint
[Docket Item 1] was timely filed.
8

III. STANDARD OF REVIEW
Pursuant to Fed. R. Civ. P. 56(c), a motion for summary
judgment will be granted if the pleadings, depositions, answers to
interrogatories,

and

admissions

on

file,

together

with

the

affidavits, if any, show that there is no genuine dispute as to
any material fact and that the moving party is entitled to judgment
as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S.
242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322
(1986). “[S]ummary judgment may be granted only if there exists no
genuine issue of material fact that would permit a reasonable jury
to find for the nonmoving party.” Miller v. Ind. Hosp., 843 F.2d
139, 143 (3d Cir. 1988). All facts and inferences must be construed
in the light most favorable to the non-moving party. Peters v.
Del. River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994).
In deciding a motion for summary judgment, the court’s role
is not to evaluate the evidence and decide the truth of the matter,
but to determine whether there is a genuine issue for trial.
Anderson, 477 U.S. at 249. Credibility determinations are the
province of the factfinder, and thus at the summary judgment stage
credibility issues should be resolved against the moving party.
Big Apple BMW v, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363
(3d Cir. 1992); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307
n.2 (3d Cir. 1983). However, “[t]he mere existence of a scintilla
of evidence,” without more, will not give rise to a genuine dispute

9

for trial. Anderson, 477 U.S. at 252. In the face of such evidence,
summary judgment is still appropriate “[w]here 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).
IV.

DISCUSSION
Plaintiff’s

Complaint

alleges

three

separate

claims:

employment discrimination on the basis of race, religion, or
national origin (Count One), retaliation (Count Two), and hostile
work environment (Count Three). (See [Docket Item 1].) Defendant
seeks summary judgment in her favor with regard to each of the
three counts contained in Plaintiff’s Complaint. The Court shall
address these in the order that they were presented by the parties
in their briefing.
A.

Count One: Discrimination on
Religion, or National Origin

the

Basis

of

Race,

Title VII provides, in pertinent part, that it shall be
unlawful for an employer:
(1) to fail or refuse to hire or to discharge any
individual, or otherwise to discriminate against any
individual with respect to his compensation, terms,
conditions, or privileges of employment, because of such
individual's race, color, religion, sex, or national
origin.
42 U.S.C. § 2000e-2. Under Title VII, there are two methods for a
plaintiff to meet its burden to establish that discriminatory
animus resulted in an adverse employment action: direct evidence

10

and circumstantial evidence. Anderson v. Wachovia Mortg. Corp.,
621 F.3d 261, 267-68 (3d Cir. 2010).
“Direct evidence of discrimination must be ‘so revealing of
[discriminatory] animus that it is unnecessary to rely on the
[McDonnell Douglas] burden-shifting framework, under which the
burden of proof remains with the plaintiff.’” Anderson, 621 F.3d
at 269 (quoting Walden v. Georgia–Pacific Corp., 126 F.3d 506, 512
(3d

Cir.1997)).

‘decisionmakers

Such
placed

evidence

must

substantial

“demonstrate[]
negative

that

reliance

the

on

an

illegitimate criterion in reaching their decision.’” Walden, 126
F.3d at 513 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228,
277 (1989) (O’Connor, J., concurring)). Direct evidence must first
be

strong

enough

“to

permit

the

factfinder

to

infer

that

a

discriminatory attitude was more likely than not a motivating
factor in the [defendant’s] decision.” Id. (internal quotation
marks and alteration omitted). Second, direct evidence must be
connected to the decision plaintiff challenges. Id. at 515–16.
A claim brought under circumstantial evidence is governed by
the McDonnell Douglas burden-shifting paradigm. See McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1974); see also
Scheidemantle v. Slippery Rock State System of Higher Educ., 470
F. 3d 535, 539 (3d Cir. 2006). To prevail under this framework, a
plaintiff has the initial burden of showing a prima facie case for
discrimination. The plaintiff must demonstrate: (1) he was a member

11

of a protected class; (2) he was qualified for the position; (3)
he suffered an adverse employment action; and (4) the adverse
action occurred under circumstances that gave rise to an inference
of discrimination. Jones v. Sch. Dist. Of Philadelphia, 198 F.3d
403, 412 (3d Cir. 1999). A plaintiff may establish the fourth
element and show an inference of discrimination through: “evidence
of comparators . . . or [by] rely[ing] on circumstantial evidence
that otherwise shows a causal nexus between his membership in a
protected class and the adverse employment action. Greene v. Virgin
Islands Water & Power Auth., 557 Fed. App’x 189, 195 (3d Cir. 2014)
(citing Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 n.7 (3d
Cir. 2003)).
1.

Direct evidence of discrimination

Plaintiff argues that certain commends allegedly made by Mr.
Martinez to Plaintiff constitute direct evidence of discrimination
based on religion or national origin.6 (See Complaint [Docket Item
1], ¶¶ 16-19.) The parties agree that two of the comments at issue
were raised before the Honorable Noel L. Hillman, U.S.D.J, in a
case brought by Plaintiff’s brother, Rajnish Gulati, regarding
this same hiring decision, who discussed them in relation to a
motion for summary judgment in that case: Gulati v. LaHood, No.

6

Plaintiff does
discrimination.

not

identify

any

12

direct

evidence

of

racial

12-5298, 2015 WL 3970136 (D.N.J. June 29, 2015). As Judge Hillman
summarized:
The first comment, which was made on or about
June 17, 2009, was asserted in connection with
a conversation about Alok Gulati’s donations
to the Disabled Veterans National Foundation,
when [Mr.] Martinez purportedly said in a
derisive tone, “good, you should, you can
afford it. [Y]ou make a good salary.” When
Alok Gulati responded that he did earn a good
salary, [Mr.] Martinez allegedly said “‘aren't
you all Indians doctors, lawyers, motel & gas
station owners[.]’”
Then, after [Mr.] Martinez selected [Mr.]
Colon–Madera for the Level 14 position, in
response to an inquiry as to the basis upon
which [Mr.] Martinez made his decision, [Mr.]
Martinez purportedly told Alok Gulati, “‘I
know you’re upset with my decision, but it’s
my decision and I made it because I am a
Christian[.]’” Although [Mr.] Martinez denies
making these statements, the Court will assume
he made such statements for purposes of
deciding this summary judgment motion.
Gulati v. LaHood, 2015 WL 3970136, at *5 (internal quotations and
citations omitted). Judge Hillman then cited the legal standard
for this kind of alleged direct evidence:
In order for the comments to serve as direct
evidence of discrimination, the Court must
consider how and if they are related to the
adverse employment action. See Anderson, 621
F.3d at 269; Parker v. Verizon Pa., Inc., 309
F. App’x 551, 558-59 (3d Cir. 2009). “‘Stray
remarks
by
non-decisionmakers
or
by
decisionmakers unrelated to the decision
process are rarely given great weight,
particularly if they were made temporally
remote from the date of decision.’” Parker,
309 F. App’x at 559 (quoting Ryder v.
Westinghouse Elec. Corp., 128 F.3d 128, 133

13

(3d Cir. 1997)). The Court takes the following
factors into account when considering stray
remarks: “(1) the relationship of the speaker
to the employee and within the corporate
hierarchy; (2) the temporal proximity of the
statement to the adverse employment decision;
and (3) the purpose and content of the
statement.” Id. at 559.
Id. Judge Hillman then went on to find that Mr. Martinez was the
alleged speaker in both instances and that it was he who made the
decision regarding the Level 14 position. Id. Judge Hillman went
on to further find that both statements were temporally proximate
to the adverse employment action; the first comment was made
roughly two months before the adverse action and the second was
made shortly after the adverse action. Id.
With regard to the first comment, Judge Hillman found:
The first comment was unrelated to the
decision-making
process.
The
statement
appears to have been an isolated or stray
remark about national origin. Plaintiff cites
no proof of any other comments by Martinez
related to national origin. The Court finds
that
this
isolated
statement
fails
to
demonstrate that an invidious discriminatory
reason was more likely than not a motivating
cause of Martinez's selection.
Id. With regard to the second comment, Judge Hillman found:
The second comment was made by the decisionmaker and was related to the decision about
the Level 14 position. [Mr.] Martinez stated
that he made the employment decision because
he is a Christian. The United States Court of
Appeals for the Third Circuit has noted that
a “compelling example” of direct evidence of
discrimination would be a statement that “‘I’m
firing you because you’re not a Christian.’”

14

Hankins v. City of Philadelphia, 189 F.3d 353,
365 (3d Cir.1999) (quoting Venters v. City of
Delphi, 123 F.3d 956, 973 (7th Cir.1997)).
Here, much like the “compelling example”
provided by the Third Circuit, [Mr.] Martinez
directly stated that his decision was based on
the fact he is Christian, thereby implying
that Plaintiff was not promoted because he is
not a Christian.
As
stated
above,
direct
evidence
of
discrimination must allow a factfinder “to
infer that a discriminatory attitude was more
likely than not a motivating factor in the
[defendant’s] decision.’” Anderson, 621 F.3d
at 269 (internal citations omitted). The Court
finds that if [Mr.] Martinez’s statement is
believed, a trier of fact could infer that
[Mr.] Martinez utilized religion as a factor
in selecting a candidate for the Level 14
position.
Id. at *6. Judge Hillman then further found that the plaintiff
had, through this direct evidence, established a sufficient claim
for

religious

discrimination

under

Title

VII

to

deny

the

defendant’s request for summary judgment. Id.
As Judge Hillman held in the prior case, this Court finds
that the first alleged statement is an isolated and remote stray
remark about Plaintiff’s national origin. Plaintiff emphasizes in
his papers that this conversation allegedly took place on the day
that applications closed for the Level 14 position. (Pl.’s Opp’n
[Docket Item 21], 6.) However, while the conversation allegedly
took place in temporal proximity to the deadline for applying to
the Level 14 position, there is no evidence that the conversation

15

was on the topic of the Level 14 position or that the position was
on the mind of Mr. Martinez at the time.
Defendant urges this Court to come to a different conclusion
than Judge Hillman did regarding the second comment, because “when
placed in its entire context, [the second alleged statement] serves
as

neither

direct

evidence

of

discrimination

nor

evidence

establishing that the reasons for the selection are pretext for
discrimination.” (Pl.’s Br. [Docket Item 16-2], 5 n.1.) However,
as described in Section II. supra, genuine disputes of material
fact exist regarding whether Mr. Martinez knew of Plaintiff’s
religious affiliation at the time he allegedly made the second
comment. In conjunction with the content of the alleged second
comment, a reasonable jury could find that this constitutes direct
evidence of discrimination.
In

this

case,

Plaintiff

asserts

that

there

is

a

third

statement by Mr. Martinez that constitutes direct evidence of
discrimination on the basis of national origin that was not raised
before Judge Hillman in the prior case. (See Complaint [Docket
Item 1], ¶ 17.) The allegation put forth by Plaintiff is that on
an unknown date in 2009, Mr. Martinez “in Plaintiff’s presence
stated that Jews and Indians are wealthy compared to the rest of
society. (Id.) However, it appears that Plaintiff has withdrawn
this allegation. (See Def’s SMF [Docket Item 16-1], ¶¶ 97-98; Pl’s
RSMF [Docket Item 19], ¶¶ 97-98.) Even if the claim were not

16

withdrawn, this third comment is even more remote than the first
statement, supra, as Plaintiff never identifies the exact date or
any of the context for this alleged third statement. Therefore, it
too would be deemed by the Court to be a stray comment unrelated
to the Level 14 position and insufficient to sustain a claim under
a direct evidence theory of discrimination.
For these reasons, the Court shall grant Defendant’s motion
insofar as it seeks summary judgment as to a direct evidence theory
of race and national origin discrimination and shall deny the
motion with respect to a direct evidence theory of religious
discrimination. 
2.

Circumstantial evidence of discrimination
a.

Prima facie case

Defendant concedes that Plaintiff has established his prima
facie case for religious discrimination. (Def.’s Br. [Docket Item
16-2], 5 n.2.) Therefore, the Court shall only analyze Plaintiff’s
prima facie case with respect to his allegations of discrimination
based on race and national origin.
Defendant

further

concedes

that

Plaintiff

has

satisfied

prongs 1, 2, and 3 of his prima facie case for discrimination on
the basis of race or national origin, though Defendant contends
that Plaintiff cannot meet his burden as to prong 4. (Id. at 8.)
Therefore, the Court shall restrict its analysis of Plaintiff’s

17

prima facie case to prong 4 of his race and national origin
discrimination theories.
Defendant argues that the minimal alleged comments regarding
Plaintiff’s race and national origin, described supra, are stray
remarks that are insufficient to give rise to an inference of
discrimination. (Id. at 9 (citing Vasbinder v. Sec’y Dep’t of
Veterans Affairs, 487 F. App’x 746, 749–50 (3d Cir. 2012)).) The
Court agrees. As an initial matter, neither the first nor the third
statement, analyzed supra, mentioned Plaintiff’s self-identified
race (Asian), therefore they cannot give rise to an inference of
racial discrimination. As for discrimination on the basis of
national origin, as above, these are only two stray remarks
unconnected to the complained of employment action. Plaintiff must
provide a greater causal link between the adverse action and the
allegedly discriminatory animus in order to establish prong 4 of
his prima facie case.
Plaintiff attempts to salvage these prima facie claims by
asserting that another Asian colleague, Mr. Nguyen, also had
negative interactions with Mr. Martinez. (See Pl.’s Opp’n [Docket
Item 21], 15 (citing Nguyen Dec. [Docket Item 22]).) Mr. Nguyen’s
declaration asserts that he is Asian, but does not indicate that
his national origin is Indian, therefore this declaration cannot
bolster Plaintiff’s prima facie case for discrimination on the
basis of national origin. Regarding racial discrimination, Mr.

18

Nguyen declares that he has had a number of requests denied by Mr.
Martinez, but he does not provide any evidence that the complained
of treatment is based on racial considerations other than Mr.
Nguyen’s bare belief. (See generally Nguyen Dec. [Docket Item 22].)
This is insufficient to establish prong 4 of Plaintiff’s prima
facie case. A plaintiff’s subjective belief that he was the victim
of

discrimination,

without

more,

is

insufficient

to

draw

an

inference of actual discrimination. See DeMary v. Kennedy Health
Sys., No. 11-5984, 2014 WL 3748591, at *9 (D.N.J. July 30, 2014)
(“it is well-established that a plaintiff’s subjective ‘belief or
feeling that [s]he was the victim of disparate treatment is
insufficient, standing alone, to preclude judgment as a matter of
law.’” (quoting Jones v. Sch. Dist. of Phila., 19 F. Supp. 2d 414,
420 (E.D. Pa. 1998), aff’d, 198 F.3d 403 (3d Cir. 1999))). The
same holds true for the subjective belief of third-parties. Without
substantiation

of

such

subjective

beliefs,

Plaintiff

cannot

establish prong 4 of his prima facie case. Therefore, the Court
shall grant summary judgment in Defendant’s favor with respect to
theories

of

discrimination

based

on

race

or

national

origin

supported by circumstantial evidence.
b.

Defendant’s
proffered
non-discriminatory
reason for the adverse employment action

Defendant’s proffered non-discriminatory reason for selecting
Mr. Colon-Madera for the Level 14 position rather than Plaintiff

19

is that Mr. Colon-Madera was deemed more qualified under the
objective criteria in the application process, including being
ranked higher in the four KSAs, described supra. (See Def.’s Br.
[Docket Item 16-2], 10-22.) The Court finds that the rationale
proffered by Defendant satisfies her burden and now the burden
shifts back to Plaintiff to show that this proffered rationale is
in fact pretext to discrimination.
c.
Under

the

Pretext

McDonnell

Douglas

framework,

when

a

defendant

offers a legitimate nondiscriminatory reason for its employment
action at the summary judgment stage, “the plaintiff generally
must submit evidence which: 1) casts sufficient doubt upon each of
the legitimate reasons proffered by the defendant so that a
factfinder

could

fabrication;
discrimination

or

reasonably
2)

was

conclude

allows
more

the

likely

that

each

factfinder
than

not

reason

to
a

was

infer

motivating

a

that
or

determinative cause of the adverse employment action.” Fuentes v.
Perskie, 32 F.3d 759, 762 (3d Cir. 1994).
The ultimate issue remains whether discriminatory animus
motivated the employer. Thus, to show pretext under the first
prong,

the

Plaintiff

implausibilities,

“must

demonstrate

inconsistencies,

such

weaknesses,

incoherencies,

or

contradictions in the employer’s proffered legitimate reasons for
its actions that a reasonable factfinder could rationally find

20

them unworthy of credence.” Jones, 198 F.3d at 413. Under the
second prong, Plaintiff may point to evidence that the “employer
has previously discriminated against [the plaintiff], that the
employer has previously discriminated against other persons within
the plaintiff's protected class, or that the employer has treated
more favorably similarly situated persons not within the protected
class.” Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d
639, 645 (3d Cir. 1998) (citing Fuentes, 32 F.3d at 765).
i.
With

respect

Religion
to

Plaintiff’s

allegations

of

religious

discrimination, the second statement analyzed, supra, which the
Court found to constitute direct evidence of discrimination, if
believed by a reasonable finder of fact, would permit the inference
that religious discrimination was more likely than not a motivating
factor in Mr. Martinez’s decision not to select Plaintiff for the
Level 14 position. Therefore, this portion of Defendant’s motion
will be denied.
ii.

Race and National Origin

Even if Plaintiff had made his prima facie showing regarding
circumstantial evidence of discrimination on the basis of race or
national origin, which the Court has already found he has not,
Plaintiff

does

not

proffer

sufficient

evidence

to

allow

a

reasonable finder of fact to conclude that Defendant’s proffered
reason

was

a

fabrication

nor

to

21

allow

such

a

factfinder

to

reasonably infer that discrimination was more likely than not a
motivating or determinative cause of Mr. Martinez’s nonselection
for the Level 14 position.
As explained, supra, Mr. Martinez’s two alleged comments
regarding Plaintiff’s national origin were only stray remarks and
Mr. Nguyen’s declaration does not provide any additional evidence
of discriminatory animus, but rather only illustrates Mr. Nguyen’s
own

subjective

discriminatory

belief
intent,

that

Mr.

without

Martinez

any

is

motivated

substantiation.

by

Plaintiff

alleges further incidents of Mr. Martinez treating Plaintiff in a
way that Plaintiff would prefer not to be treated, but Plaintiff
does not provide any further support for his allegation that this
treatment was the result of animus against Plaintiff on the basis
of his race or national origin. (See Pl.’s Opp’n [Docket Item 21],
15-23.) Plaintiff’s burden at this stage is not to show that he
disliked Mr. Martinez’s treatment of him, but rather to show that
Mr. Martinez’s actions were due to improper animus. Without further
evidence of Mr. Martinez’s allegedly improper motive, Plaintiff is
unable

to

establish

that

Defendant’s

proffered

reason

for

selecting Mr. Colon-Madera is only pretext for discrimination
against Plaintiff on the basis of his race or national origin.
Plaintiff

further

argues

that

he

can

establish

that

Defendant’s stated reason for choosing Mr. Colon-Madera is a
fabrication based on Mr. Martinez’s social interactions with Mr.

22

Colon-Madera and Mr. Martinez’s choice not to discuss with HR
whether an independent selecting body should determine who would
fill the Level 14 position. (Id.) However, nowhere does Plaintiff
cite to any legal authority that supports the contention that these
facts alone can meet Plaintiff’s burden for showing pretext. (See
generally id.) Rather, evidence of social bond between Mr. Martinez
and Mr. Colon-Madera may in fact undermine Plaintiff’s contention
that the selection was made in an atmosphere of racial or national
origin bias, because any preference that Mr. Martinez may show for
Mr. Colon-Madera may actually be rooted in their individual social
bond rather than in an alleged underlying bias in favor of people
of a similar race or national origin. Whatever the extent of Mr.
Martinez’s social bond with Mr. Colon-Madera, it is irrelevant in
the context of Plaintiff’s burden to show pretext, unless it is
connected

with

evidence

of

bias

on

the

basis

of

race

or

nationality. Aside from noting that Mr. Martinez and Mr. ColonMadera

are

of

the

same

nationality

and

both

speak

Spanish,

Plaintiff does not provide any evidence that their social bond (to
whatever extent it exists) is based on a categorical preference
for Spanish-speaking Puerto Rican people or on a dislike for Asian
people or people of Indian origin.
Regarding Plaintiff’s contention that HR should have been
consulted about the possibility of putting together an independent
selection committee for the Level 14 position, Plaintiff has not

23

proffered any evidence that HR would have encouraged Mr. Martinez
to establish such a body had he inquired of them, nor has he cited
to any case law that would show that evidence of such would meet
his burden to establish pretext. (See generally id.) Therefore,
the Court also finds that Plaintiff has failed to show that this
argument is relevant to his burden to prove that Defendant’s
proffered nondiscriminatory reason for selecting Mr. Colon-Madera
is pretext for an actual desire to discriminate against Plaintiff
because of his race or national origin.
B.

Count Three: Hostile Work Environment

Plaintiff’s third claim is for creation of a hostile work
environment as a result of Plaintiff’s protected EEO activities.
(See Complaint [Docket Item 1], ¶¶ 43-44.) Plaintiff has withdrawn
this claim with respect to all exemplary incidents that allegedly
took place prior to October 8, 2019. (See Pl.’s Opp’n [Docket Item
21], 25.) The alleged exemplary incidents that Plaintiff continues
to assert in support of his hostile work environment claim are:
l.

On
October
19,
2009,
Mr.
Martinez
issued
[Plaintiff] a performance evaluation for FY 2009
which
contained
unsubstantiated
derogatory
comments
regarding
[Plaintiff’s]
performance
during FY 2009.

s.

On or before May 2010, [Plaintiff’s] supervisor
denied [him] the opportunity to participate in the
ISO effort.

t.

On July 8, 2010, [Plaintiff] received derogatory
comments from [his] supervisor on [his] application
for the Executive Leadership Program training,

24

comments apparently calculated
denial of your application.

to

lead

to

the

u.

On
July
19,
2010,
[Plaintiff’s]
supervisor
responded with hostility to [his] request for sick
leave, declaring “that this is becoming a pattern.”

v.

[Plaintiff was] excluded from a September 20, 2010
VOIP-related meeting with Mr. Tran, about which
[he] learned on or about September 29, 2010.

w.

[Plaintiff]
received
unsubstantiated
negative
comments in [his] October 21, 2010 performance
evaluation.

x.

[Plaintiff was] ordered by Mr. Colon-Madera to
engage in physical labor with the VOIP team in
February
2010
and
September
2010
despite
previously-disclosed issues with bad back, and were
criticized by Mr. Colon-Madera for not showing up
after giving prior notice of back issues to Mr.
Colon-Madera.

z.

In August 2010, [Plaintiff was] denied ELP training
for 2010.

bb.

On December 20, 2010, [Plaintiff was] unjustifiably
yelled at by Mr. Martinez in the workplace and in
front of a contractor.

(Id. at 26.)
“To establish a hostile working environment claim against an
employer,

a

plaintiff

must

prove:

(1)

the

employee

suffered

intentional discrimination on the basis of race, national origin
or religion, (2) the discrimination was pervasive and regular, (3)
the discrimination detrimentally affected the plaintiff, (4) the
discrimination would detrimentally affect a reasonable person who
belonged to the same protected class, and (5) the existence of
respondeat superior liability.” Spence v. LaHood, No. 11-3972,

25

2013 WL 355913, at *3 (D.N.J. Jan. 29, 2013) (Simandle, C.J.)
(citing Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d
100, 104 (3d Cir.2009)). The “sine qua non of a hostile work
environment

claim

discriminatory

is

a

‘workplace

intimidation,

.

ridicule,

.
and

.

permeated
insult,

that

with
is

sufficiently severe or pervasive to alter the conditions of the
victim’s employment and create an abusive working environment[.]’”
McKinnon v. Gonzales, 642 F.Supp.2d 410, 421 (D.N.J. 2009) (quoting
Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)).
The discriminatory conduct “must be extreme to amount to a change
in the terms and conditions of employment.” Feeney v. Jeffries &
Co., Inc., No. 09–2708, 2010 WL 2629065, at *5 (D.N.J. June 28,
2010) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)).
The Supreme Court has instructed lower courts
“to determine whether an environment is
sufficiently hostile or abusive by looking at
all the circumstances, including the frequency
of the discriminatory conduct; its severity;
whether it is physically threatening or
humiliating, or a mere offensive utterance;
and whether it unreasonably interferes with an
employee’s work performance.” Faragher v. City
of Boca Raton, 524 U.S. 775, 787–88, 118 S.
Ct. 2275, 141 L. Ed.2d 662 (1998) (internal
citations and quotation marks omitted). Title
VII is not intended as a “general civility
code,” and requires that “conduct must be
extreme” to constitute the kind of “change in
the terms and conditions of employment” the
statute was intended to target. Id. at 788,
118 S. Ct. 2275 (internal citations and
quotation marks omitted).

26

Burgess v. Dollar Tree Stores, Inc., 642 F. App’x 152, 155 (3d
Cir.

2016)

(affirming

a

district

court

decision

granting

defendant’s request for summary judgment where multiple allegedly
hostile events took place in a single month, including one nonconsensual

touching

and

one

physical

threat).

“[O]rdinary

tribulations of the workplace, such as the sporadic use of abusive
language, gender-related jokes, and occasional teasing” do not
give rise to liability under Title VII. Faragher, 524 U.S. at 788.
Defendant contends that the events described by Plaintiff do
not rise to the level of “severe and pervasive” and do not have
any causal connection to retaliatory animus. (See Def.’s Br.
[Docket Item 16-2], 28-39; Def.’s Reply [Docket Item 30], 11-13.)
Defendant also asserts that a number of the remaining alleged
exemplary incidents do not even represent true grievances on the
part of Plaintiff. (Id.)
With regard to alleged incident “s”, Plaintiff admits that he
may have in fact attended the ISO training in question, though not
with Mr. Martinez’s specific permission. (See Def.’s SMF [Docket
Item 16-1], ¶¶ 145-46; Pl.’s RSMF [Docket Item 19], ¶¶ 145-46.)
With regard to alleged incident “t”, Plaintiff admits that his
application to the program was accepted, but that the training was
ultimately cancelled due to budgetary constraints. (See Def.’s SMF
[Docket Item 16-1], ¶ 147; Pl.’s RSMF [Docket Item 19], ¶ 147.)
With regard to alleged incident “u”, Plaintiff admits that he was

27

granted the leave that he requested. (See Def.’s SMF [Docket Item
16-1], ¶ 149; Pl.’s RSMF [Docket Item 19], ¶ 149.) With regard to
alleged incident “w”, the comments at issue were that Plaintiff
should be in the lab more often and that Plaintiff should sometimes
replace certain long emails with short conversations. (See Def.’s
SMF [Docket Item 16-1], ¶ 152; Pl.’s RSMF [Docket Item 19], ¶ 152.)
With regard to alleged incident “z”, as with alleged incident “t”,
Plaintiff was selected for the program, but the entire event was
cancelled due to budgetary concerns. (See Def.’s SMF [Docket Item
16-1], ¶ 153; Pl.’s RSMF [Docket Item 19], ¶ 153.)
The

remaining

instances

allege

one

negative

interaction

(alleged incident “l”), one missed meeting (alleged incident “v”),
one instance of being asked (but not required) to do physical
labor, regardless of Plaintiff’s bad back (alleged incident “x”),
and one instance of Plaintiff being yelled at (alleged incident
“bb”). These nine remaining alleged incidents took place over the
course of fourteen months, and once placed in the admitted context
above, the Court cannot find, even after taking all reasonable
inferences in favor of Plaintiff, that such a combination of
alleged incidents constitute “severe and pervasive” hostility in
the workplace, or that they somehow altered Plaintiff’s conditions
of employment. Rather, the Court finds that these alleged incidents
are each separately and all in combination no more than the
“ordinary tribulations” of the workplace. Therefore, the Court

28

shall grant summary judgment in favor of Defendant as to Count
Three.
C.

Count Two: Retaliation

Plaintiff’s second claim is for retaliation as a result of
his

EEO

counseling

and

complaint

(“standalone

retaliation”),

separate from his claim for a retaliatory hostile work environment,
discussed in Section IV.B., supra. (See Complaint [Docket Item 1],
¶¶ 33-42.) As in his hostile work environment claim, Plaintiff has
withdrawn his retaliation claim as to all incidents prior to
October 8, 2009. (See Pl.’s Opp’n [Docket Item 21], 26, 30.)
Defendant argues that Plaintiff is barred from pursuing a claim
for retaliation because he failed to exhaust his administrative
remedies with respect to a claim for standalone retaliation prior
to filing this suit. (See Def.’s Br. [Docket Item 16-2], 39-43.)
Plaintiff responds by asserting that he has in fact exhausted his
administrative

remedies

and

that

a

claim

for

standalone

retaliation was encompassed by the complaint before ALJ Todd and
by her decision relating thereto. (See Pl.’s Opp’n [Docket Item
21], 30-35.)
“[A] federal employee seeking redress for unlawful workplace
discrimination

and/or

retaliation

must

first

exhaust

administrative remedies against the federal employer prior to
filing suit in federal court.” Marley v. Donahue, 133 F. Supp. 3d

29

706, 715 (D.N.J. 2015) (citing Wilson v. MVM, Inc., 475 F.3d 166,
173 (3d Cir. 2007)).
The exhaustion of administrative remedies
requirement
applies
to
claims
asserted
pursuant to Title VII, the ADEA, and the
Rehabilitation Act. Slingland v. Donahue, 542
F. App’x 189, 193 (3d Cir. 2013) (holding
Title
VII
and
ADEA
claims
require
administrative exhaustion); Wilson, 475 F.3d
at 173 (holding that Rehabilitation Act claims
require exhaustion). In general, the process
includes: (1) making contact with an EEO
counselor within forty-five days of the
alleged discriminatory action; (2) filing a
formal complaint with the EEOC within fifteen
days from receipt of the agency’s final
decision; and then (3) appealing the agency’s
final decision to the EEOC or filing a civil
action in federal district court within ninety
days of the agency’s decision. Marley, 133 F.
Supp. at 715, n.16 (citing 29 C.F.R. §§
1614.105-1614.109, 1614.401, 1614.407(a); see
also Green v. Postmaster Gen., 437 F. App’x
174, 177-78 (3d Cir. 2011).
Handle v. Brennan, No. 15-8071, 2019 WL 168830, at *3 (D.N.J. Jan.
11, 2019).
Plaintiff admits in his own briefing that only two claims
were presented to ALJ Todd in the EEO proceeding before her: (1)
nonselection for the Level 14 position and (2) hostile work
environment based on race, national origin, religion, or reprisal
for protected EEO activity. (See Pl.’s Opp’n [Docket Item 21], 3233 (quoting Claims Presented, Pl.’s Ex. DD [Docket Item 25-1], 3738).)

30

On their face, these claims presented to ALJ Todd do not
include a standalone claims for retaliation; they include the basis
for

Count

One

(discriminatory

nonselection)

and

Count

Three

(hostile work environment) of the present Complaint. (See id.) No
evidence has been provided to the Court in the context of the
present motion that Plaintiff ever raised a standalone retaliation
claim in the underlying administrative action before ALJ Todd.
Therefore, the Court shall grant summary judgment in favor of
Defendant with respect to Count Two of the Complaint.
Plaintiff attempts to salvage Count Two of his complaint by
arguing that he is entitled to a modification of the exhaustion
requirement,

because

his

standalone

retaliation

claim

could

“‘reasonably be expected to grow out of the initial charge of
discrimination.’” (Id. at 33 (quoting Ostapowicz v. Johnson Bronze
Co., 541 F.2d 394, 399 (3d Cir. 1976)).) However, all of the cases
cited by Plaintiff in support of this assertion only refer to
additional acts of alleged discrimination that took place after
the filing of the initial EEO complaint being encompassed by the
EEO

investigation

and

therefore

being

rightly

included

in

a

district court complaint. See Waiters v. Parsons, 729 F.2d 233,
237 (3d Cir. 1984); Parsons v. City of Phila. Coordinating Office
of Drug & Abuse Programs, 822 F. Supp. 1181, 1184 (E.D. Pa. 1993);
Ostapowicz, 541 F.2d at 398-99. Plaintiff has not directed the
Court to any legal authority for the proposition that he may plead,

31

in a district court complaint, a cause of action that was not pled
in the preceding EEO action. (See generally Pl.’s Opp’n [Docket
Item 21].) Therefore, the Court must grant summary judgment to
Defendant as to Count Two of the Complaint.
Furthermore, even if the Court were to hold that Plaintiff
had exhausted his administrative remedies as to Count Two, which
the Court will not, Plaintiff also fails to establish the causal
link necessary to make his prima facie case of retaliation.
The Third Circuit has previously held that
[a] prima facie case of illegal retaliation
requires a showing of “(1) protected employee
activity; (2) adverse action by the employer
either after or contemporaneous with the
employee’s protected activity; and (3) a
causal connection between the employee’s
protected activity and the employer’s adverse
action.” Fogleman [v. Mercy Hosp., Inc., 283
F.3d 561,] 567–68 (quoting Krouse v. Am.
Sterilizer Co., 126 F.3d 494, 500 (3d
Cir.1997)).
E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015),
as amended on reh’g in part (Mar. 26, 2015).
Plaintiff’s allegations in Count Two and in the briefing for
this motion boil down to an assertion that Mr. Martinez and Mr.
Colon-Madera knew of Plaintiff’s EEO activities and then engaged
in the allegedly adverse employment actions detailed in Section

32

IV.B., supra.7 However, there is no evidence presented that any of
these

alleged

adverse

actions

had

a

specific

connection

to

Plaintiff’s EEO activities. (See generally Complaint [Docket Item
1]; Pl.’s Opp’n [Docket Item 21].) Plaintiff asserts, without
citation to the record or to any legal authority, that Mr. Martinez
treated Plaintiff more severely after Plaintiff’s EEO activity.
(See Pl.’s Opp’n [Docket Item 21], 36-37.) However, no evidence is
provided relating to Mr. Martinez’s treatment of Plaintiff prior
to the events of this case, therefore there is no way for a
reasonable factfinder to determine that Mr. Martinez’s treatment
of Plaintiff changed after his EEO activities. (See generally
Complaint [Docket Item 1]; Pl.’s Opp’n [Docket Item 21].)
V. CONCLUSION
For the foregoing reasons, Defendant’s motion for summary
judgment [Docket Item 16] will be denied insofar as Defendant seeks
summary

judgment

as

to

Plaintiff’s

claims

for

religious

discrimination within the context of Count One. The remainder of
Defendant’s motion shall be granted. An appropriate Order follows.

s/Renée Marie Bumb
RENÉE MARIE BUMB
United States District Judge
Date: September 23, 2019

7

The Court need not parse those alleged incidents again here, but
reiterates that when taken in their admitted context, many of the
incidents’ apparent severity is greatly reduced.
33