DURHAM v. CAPITAL ACADEMY et al

Filing 40

MEMORANDUM OPINION & ORDER Denying Defendants' 29 Motion for Summary Judgment. Signed by Judge Renee Marie Bumb on 1/31/2020. (dmr)

[Docket No. 29]
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
CAMDEN VICINAGE

DAMINA DURHAM,
Plaintiff,

Civil No. 18-2045 (RMB/JS)

v.

MEMORANDUM OPINION & ORDER

CAPITAL ACADEMY and SEQUEL
YOUTH AND FAMILY SERVICES,
Defendants.

This matter comes before the Court upon Defendants Capital
Academy’s and Sequel Youth and Family Services’ Motion for Summary
Judgment against Plaintiff Damina Durham [Dkt No. 31].
Ms. Durham has brought a claim against Defendants for
violation of New Jersey’s Conscientious Employee Protection Act
(“CEPA”), N.J.S.A. 34:19-1 et seq., asserting that Defendants’
termination of her employment was unlawful retaliation against her
for reporting unlawful and improper workplace conduct at Capital
Academy.
In support of their Motion for Summary Judgment, Defendants
assert that, prior to her reports (which they date to July 2017
onward), Ms. Durham had already been identified as one of several
employees subject to a planned reduction in force (“RIF”) deemed
necessary to align staffing with revised budget constraints.
Defendants additionally assert that, of the employees subject to
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the RIF, only Ms. Durham was offered an alternative position that
would enable her to continue her employment, albeit with a lower
rate of compensation, and that this offer demonstrates Defendants’
good faith.
Ms. Durham counters that there are numerous genuine disputed
issues of material fact, particularly as to when Defendants made
the decision to include her in the RIF.

She points to, inter

alia, a May 17, 2017 email to her superior in the record in which
she references prior incident reports.

She also highlights

Defendants’ failure to provide any document referencing the RIF
prior to an August 23, 2017 email.

In response to Defendants’

“Statement of Undisputed Material Facts” [Dkt. No. 29-1],
submitted in support of their Motion, Ms. Durham provides an
“Opposition to Defendants’ Statement of Undisputed Material Facts” 1
[Dkt. No. 34-1], as well as her own “Counter-Statement of Material
Facts” [Dkt. No. 34-2].
Summary judgment shall be granted only if the movant “shows
that there is no genuine dispute as to any material fact and the
movant is entitled to judgment as a matter of law.”
P. 56(a).

Fed. R. Civ.

An issue is “material” to the dispute if it could alter

the outcome, and a dispute of a material fact is “genuine” if “a
reasonable jury could return a verdict for the non-moving party.”

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Of the sixty-six (66) “undisputed material facts” in
Defendants’ filing, Ms. Durham’s filing disputes thirty-three (33)
in their entirety, and another nineteen (19) in part.
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Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986).

In

deciding whether there is a genuine issue for trial, the court is
not to weigh evidence or decide issues of fact.

Id. at 248.

Because fact and credibility determinations are for a jury, the
nonmovant’s evidence is to be believed, and any ambiguities
construed in her favor.

Id. at 255.

However, the movant is

entitled to summary judgment where the non-moving party fails to
“make a showing sufficient to establish the existence of an
element essential to that party’s case, and on which that party
will bear the burden of proof at trial.” Celotex Corp. v. Catrett,
477 U.S. 317, 322 (1986).
To prevail on a claim under the relevant provision of CEPA
(N.J.S.A. 34:19-3(a)), a plaintiff must establish that (1) she
reasonably believed that her employer’s conduct was violating the
law (or a “rule or regulation promulgated pursuant to law”); (2)
she objected to the conduct; (3) an adverse employment action was
taken against her; and (4) a “causal connection exists between the
whistleblowing activity and the adverse employment action.” See
Sarnowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 404 (3d
Cir. 2007) (citing Dzwonar v. McDevitt, 828 A.2d 893, 900 (N.J.
2003)).

The plaintiff bears the burden of establishing a prima

facie case of unlawful retaliation.

Schlichtig v. Inacom Corp.,

271 F. Supp. 2d 597, 611 (D.N.J. 2003); see also McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973).

This burden is “not

intended to be onerous”, as plaintiff need only show that
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retaliation “could be a reason for the employer’s action.” See
Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996).
If a prima facie case has been established, the defendant bears
the burden of production to present a legitimate non-retaliatory
reason for its actions. See McDonnell Douglas, 411 U.S. at 802.
To survive summary judgment, the plaintiff must in turn offer
“sufficient evidence for a reasonable jury to find that the
employer’s proffered reason for the discharge was pretextual and
that retaliation for the whistleblowing was the real reason for
the discharge.” Blackburn v. UPS, Inc., 179 F.3d 81, 92-93 (3d
Cir. 1999).
The parties’ filings indicate that there are genuine issues
of material fact regarding the nature and timing of Defendants’
decision-making process with regard to the inclusion of Ms. Durham
in the RIF.

These issues are highly relevant both to the

retaliation element of Ms. Durham’s prima facie CEPA claim and to
the pretext element of the burden-shifting analysis.

While

Defendants’ version of the events seems more plausible and, thus,
Defendants could so persuade a jury, the Court cannot hold on this
record that the Defendants are entitled to summary judgment as a
matter of law for the reasons above.

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Accordingly,

IT IS on this 31st day of January 2020, hereby
ORDERED that Defendants’ Motion for Summary Judgment [Dkt. No. 29]
is DENIED.

___s/ Renée Marie Bumb
RENÉE MARIE BUMB
UNITED STATES DISTRICT JUDGE

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