COLICCHIO v. MERCK & CO., INC. et al
Filing
103
OPINION. Signed by Judge Stanley R. Chesler on 11/16/12. (dc, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
KERRI COLICCHIO,
Plaintiff,
v.
MERCK & CO., INC. et al.,
Defendants.
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Civil Action No. 08-3593 (SRC)
OPINION
CHESLER, U.S.D.J.
This matter comes before the Court on two motions for summary judgment, pursuant to
FED. R. CIV. P. 56: 1) the motion by Defendants Merck & Co., Inc. (“Merck”), J. Chris Scalet
(“Scalet”), and Laurel LaBauve (“LaBauve”) (collectively, “Defendants”); and 2) the crossmotion by Plaintiff Kerri Colicchio (“Colicchio”). For the reasons set forth below, Defendants’
motion will be granted in part and denied in part, and Plaintiff’s cross-motion for summary
judgment will be denied.
BACKGROUND
This case arises out of an employment dispute. Plaintiff Kerri Colicchio was first
employed by Merck in 1988. During her career at Merck, Colicchio had taken two maternity
leaves and, in 2006, took a third maternity leave. Colicchio alleges that, on her return to Merck,
she was stripped of her job responsibilities and, in 2007, was terminated. Plaintiff filed a
Complaint which asserted five counts: 1) employment discrimination by reason of pregnancy in
violation of New Jersey’s Law Against Discrimination (“NJLAD”); 2) employment
discrimination by reason of gender in violation of NJLAD; 3) retaliation for activity protected by
NJLAD; 4) violation of rights under the New Jersey Family Leave Act (“FLA”); and 5) violation
of rights under the Family and Medical Leave Act (“FMLA”). Defendants have moved for
summary judgment on all counts in the Complaint, and Plaintiff has cross-moved for summary
judgment as to her interference claims under FLA and FMLA.
LEGAL STANDARD
I.
Summary Judgment
Summary judgment is appropriate under FED. R. CIV. P. 56(a) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the
moving party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S.
317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for
the non-movant, and it is material if, under the substantive law, it would affect the outcome of
the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “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) (quoting Anderson, 477 U.S. at 255).
“When the moving party has the burden of proof at trial, that party must show
affirmatively the absence of a genuine issue of material fact: it must show that, on all the
essential elements of its case on which it bears the burden of proof at trial, no reasonable jury
could find for the non-moving party.” In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting
United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). “[W]ith
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respect to an issue on which the nonmoving party bears the burden of proof . . . 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.” Celotex, 477 U.S. at
325.
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v.
Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for
summary judgment cannot rest on mere allegations and instead must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer,
Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations .
. . and pleadings are insufficient to repel summary judgment.” Schoch v. First Fid.
Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). “A nonmoving party has created a genuine
issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at
trial.” Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001).
If the nonmoving party has failed “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, . . . there can be ‘no genuine issue of material fact,’ since a complete failure of proof
concerning an essential element of the nonmoving party’s case necessarily renders all other facts
immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322-23).
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II.
Employment Discrimination: Disparate Treatment Claims
Generally, disparate treatment1 claims for employment discrimination under federal law
are analyzed by application of the McDonnell Douglas test:
The Court in McDonnell Douglas set forth a burden-shifting scheme for
discriminatory-treatment cases. Under McDonnell Douglas, a plaintiff must first
establish a prima facie case of discrimination. The burden then shifts to the
employer to articulate a legitimate, nondiscriminatory reason for its employment
action. If the employer meets this burden, the presumption of intentional
discrimination disappears, but the plaintiff can still prove disparate treatment by,
for instance, offering evidence demonstrating that the employer’s explanation is
pretextual. The Courts of Appeals have consistently utilized this burden-shifting
approach when reviewing motions for summary judgment in disparate-treatment
cases.
Raytheon Co. v. Hernandez, 540 U.S. 44, 50 (2003) (citations omitted). The New Jersey
Supreme Court has adopted the McDonnell Douglas test for most employment discrimination
claims. Victor v. State, 203 N.J. 383, 408 (2010).
If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the
defendant to “articulate some legitimate, non-discriminatory reason” for the employer’s action.
McDonnell Douglas, 411 U.S. 792, 802 (1973). The employer may satisfy the burden by
introducing evidence which, taken as true, would allow the factfinder to conclude that there was
a nondiscriminatory reason for the unfavorable employment decision. St. Mary's Honor Center
v. Hicks, 509 U.S. 502 (1993). The employer need not prove that the tendered reason actually
motivated the decision. Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981).
The burden of proving intent remains with the Plaintiff. Id.
1
A disparate treatment case is one in which the employer intentionally treats some people
less favorably than others because of their membership in a protected class. See Int’l Bhd. of
Teamsters v. United States, 431 U.S. 324, 335 n.15 (1977).
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If the defendant employer satisfies the burden, then “the plaintiff must ‘submit evidence
from which a factfinder could reasonably either (1) disbelieve the employer’s articulated reasons
or (2) believe that an invidious discriminatory reason was more likely than not a motivating or
determinative cause of the employer’s action.’” Fakete v. Aetna, 308 F.3d 335, 338 n.3 (3d Cir.
2002). The plaintiff’s evidence rebutting the employer’s proffered legitimate reasons must allow
the factfinder to infer that each of the employer’s proffered nondiscriminatory reasons was either
a post hoc fabrication or otherwise did not actually motivate the employment action. Fuentes v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994).
At this stage, the burden has shifted back to the plaintiff, and the plaintiff must show, by a
preponderance of the evidence, that the employer’s explanation is pretextual. Id. “The test is
whether the plaintiff ultimately persuades the factfinder that the employment decision was caused
by bias” and that the real reason for the employer’s adverse employment decision is
discrimination. Id.
DISCUSSION
I.
Defendants’ motion for summary judgment
Defendants move for summary judgment on the First and Second Counts in the
Complaint, which assert employment discrimination in violation of NJLAD by reason of
Plaintiff’s pregnancy and gender. In moving, Defendants distinguish between two kinds of
NJLAD violations: the failure to promote to the position of Vice President of Global OE, and
wrongful discharge. In opposition, Plaintiff summarizes the NJLAD claims as follows: “Plaintiff
alleges that defendants discriminated against her in violation of the New Jersey Law
Against Discrimination . . . on the basis of pregnancy and gender by dismantling her career,
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placing no more qualified individuals into available Grade 3 positions, and then terminating her
for pretextual reasons.” (Pl.’s Opp. Br. 13.) Plaintiff thus complains of employment
discrimination manifested in three kinds of adverse actions: dismantling her career, not hiring her
for available Grade 3 positions, and terminating her.
Defendants object that the Grade 3 position failure to hire claim is newly asserted,
appearing for the first time in this case in Plaintiff’s summary judgment brief. It is true that the
Complaint does not assert a claim for failure to hire for Grade 3 positions. The Complaint
alleges that Plaintiff was not hired for the Interim Vice President of Global OE position, nor for
the Vice President of Global OE position, but does not assert that Plaintiff was not hired or not
promoted for any other position. Plaintiff has expressly abandoned any claim for failure to hire
for any position other than the Vice President of Global OE position. (Pl.’s Opp. Br. 65 n.9.)
Thus, this Court recognizes only three adverse employment actions in considering the claims
under the First and Second Counts for violation of NJLAD: 1) the changes in job responsibilities
imposed after Plaintiff returned from her third maternity leave; 2) her termination; and 3) the
failure to hire/promote to the position of Vice President of Global OE.
Defendants have not moved for summary judgment on Plaintiff’s claims that she suffered
adverse employment actions manifested in the changes in job responsibilities imposed after she
returned from her third maternity leave. That theory is therefore not at issue on this motion. As
to the NJLAD discrimination claims, that leaves two kinds of adverse employment actions at
issue on this motion: Plaintiff’s termination, and the failure to hire her for the Vice President of
Global OE position.
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A.
NJLAD: termination
Defendants move for summary judgment on Plaintiff’s claim that her termination was due
to unlawful discrimination, in violation of NJLAD, on three grounds: 1) Plaintiff cannot establish
a prima facie case; 2) the termination was based on legitimate and non-discriminatory reasons;
and 3) Plaintiff cannot show that these reasons are a pretext for illegal discrimination.
“The evidentiary burden at the prima facie stage is rather modest: it is to demonstrate to
the court that plaintiff’s factual scenario is compatible with discriminatory intent – i.e., that
discrimination could be a reason for the employer’s action.” Zive v. Stanley Roberts, Inc., 182
N.J. 436, 447 (2005) (citation omitted). Defendants contend that Plaintiff cannot meet this
modest burden. Yet Plaintiff has easily done so.
Defendants’ briefing relies upon an overly constricted view of Plaintiff’s case, that
Plaintiff complains of discriminatory termination and failure to promote. This narrow view
eliminates from consideration one of Plaintiff’s main points and makes Plaintiff’s case seem
meritless, since Merck continued to employ Plaintiff for about a year after her third pregnancy
leave, thus weakening any inferences based on the timing of the leave and the adverse
employment action. Defendants fail to come to grips with the main theory of Plaintiff’s case,
which is: 1) just prior to her third pregnancy leave, Plaintiff’s supervisor made statements
indicating discriminatory animus; 2) during the third pregnancy leave, Plaintiff’s supervisor
decided to terminate her based on this discriminatory animus; 3) after Plaintiff returned,
Plaintiff’s supervisor executed a plan which stripped Plaintiff of many of her job duties and set
her up for her eventual termination; and 4) Plaintiff was eventually terminated. Plaintiff’s
termination case thus incorporates her claim regarding the changes in job responsibilities after
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her return from her third maternity leave.
Plaintiff offers a large volume of evidence to support this theory, but the most relevant
evidence may be summarized as follows. Plaintiff points to: 1) evidence regarding her
supervisor’s statements during the February 15, 2006 meeting; 2) evidence regarding changed job
responsibilities after the third pregnancy leave; and 3) evidence regarding timing.
As to the February 15, 2006 meeting with Scalet, Plaintiff points to her interrogatory
statement about a conversation with Scalet during her third pregnancy, in which Scalet “said that
she would have been chosen [for promotion] except for her upcoming maternity leave.”2 (Pl.’s
Ans. to Defs.’ First Interrog. ¶ 7.) The interrogatory also states that Scalet “repeatedly
complained about the six month length of her leave at her level.” (Id.) Plaintiff states that Scalet
discouraged her from returning to work after maternity leave, saying, “babies need their mamas.”
(Id.) A reasonable jury could infer discriminatory animus from this evidence.
As to the evidence that, immediately upon her return from her third maternity leave, a
number of job responsibilities were taken away from her, Plaintiff points to her deposition
testimony. (Colicchio Dep. 81:4-82:6.) Defendants have not raised the issue of whether the
definition of adverse employment action under the NJLAD includes the kind of stripping of job
responsibilities that Plaintiff alleges. Such action is certainly actionable under Title VII.
2
While this might appear to be a smoking gun statement, it is not. According to the
interrogatory, this statement was in regard to the position of Interim VP Global OE position, and
not the VP Global OE position. As Defendants note, Plaintiff has expressly abandoned any claim
for failure to hire for the Interim VP Global OE position, and the claim for failure to promote
concerns only the VP Global OE position. Nonetheless, this evidence is probative of the
proposition that Scalet considered Plaintiff’s maternity leave to be an important factor in making
decisions about her employment – and, more importantly, a negative factor.
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Burlington Indus. v. Ellerth, 524 U.S. 742, 761 (1998) (“A tangible employment action
constitutes a significant change in employment status, such as hiring, firing, failing to promote,
reassignment with significantly different responsibilities, or a decision causing a significant
change in benefits.”) Defendants have not argued that Plaintiff’s allegations regarding changed
job responsibilities after coming back from the third pregnancy leave are not actionable under
NJLAD, and have waived this argument. A reasonable jury, hearing this evidence, could infer
that Plaintiff suffered significant adverse employment actions upon her return from her third
maternity leave.
This same evidence also supports inferences as to timing: discriminatory animus was
expressed prior to the third maternity leave, adverse employment action occurred immediately
after return from maternity leave, and this process led to Plaintiff’s eventual termination.
Defendants try to treat the maternity leave and the termination as remote in time, but, under
Plaintiff’s theory, they are temporally linked by the intervening process of changing her job
responsibilities. The evidence indeed supports an inference that, as Plaintiff contends, Merck set
her up for her eventual termination by gradually stripping her of her job responsibilities. The
proffered evidence is sufficient to allow a reasonable jury to conclude that Plaintiff suffered an
adverse employment action motivated by discriminatory animus related to the maternity leave.
This is sufficient, at this stage, to defeat the motion for summary judgment regarding
employment discrimination based on both pregnancy and gender.3
A reasonable finder of fact, crediting this evidence and making every reasonable
3
The inferences as to pregnancy are quite direct. The inferences as to gender are more
indirect but, since only women get pregnant, the evidence is sufficient at this stage to merit
presenting the gender discrimination case to the jury.
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inference in favor of Plaintiff, as the law of summary judgment requires, could easily conclude
that Plaintiff’s factual scenario is compatible with discriminatory intent. As noted, the New
Jersey Supreme Court considers the evidentiary burden at the prima facie stage to be modest, and
Plaintiff has pointed to evidence sufficient to meet this burden.
Following the McDonnell Douglas paradigm, the burden then shifts to Defendants, who
contend that Plaintiff was terminated for a legitimate non-discriminatory reason, a business
reorganization. The burden then shifts back to the Plaintiff, who must, at summary judgment,
point to evidence sufficient to persuade a reasonable factfinder that the proffered reason is
pretextual.
As Plaintiff contends, the Third Circuit has established the following legal standard for
this issue:
This basic framework under Title VII illustrates that, to defeat summary judgment
when the defendant answers the plaintiff's prima facie case with legitimate,
non-discriminatory 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. Plaintiff’s proffered evidence has already been reviewed. This Court
finds that, for the reasons already discussed, Plaintiff has pointed to evidence which could
persuade a reasonable factfinder to disbelieve Defendants’ articulated reasons.
In sum, Plaintiff has pointed to evidence which, taken as true, is sufficient evidence from
which a factfinder could both find that the modest requirements of a prima facie case have been
satisfied, as well as disbelieve the employer’s articulated legitimate reason for the termination.
While the proffered evidence evidence expressly concerns pregnancy, that sufficiently implies
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gender that these claims of discrimination on the basis of pregancy and on the basis of gender
both remain in the case. As to her claims for employment discrimination in the First and Second
Counts of the Complaint, Plaintiff has raised a factual dispute sufficient to defeat the motion for
summary judgment as to the claim of discriminatory termination, in violation of the NJLAD.
B.
NJLAD: failure to promote/hire
As to the claim that Defendants failed to hire/promote Plaintiff to the position of Vice
President of Global OE, Defendants make three arguments: 1) Plaintiff cannot establish a prima
facie case; 2) Defendants can articulate a legitimate, non-discriminatory reason; and 3) Plaintiff
has no evidence that this reason is pretextual.
The Third Circuit has articulated the requirements of a prima facie case for failure to hire
as follows:
To establish a prima facie case for relief in an employment discrimination case
alleging a failure to hire, an applicant must establish that: (1) he belongs to the
protected category; (2) he applied for and was qualified for a position for which
the covered employer was seeking applicants; (3) despite his qualifications, he
was not hired; and (4) after his rejection, the position remained open, or was filled
in a manner giving rise to an inference of discrimination.
Still v. Shinseki, 2012 U.S. App. LEXIS 15232, *4-*5 (3d Cir. July 24, 2012) (citing Olson v.
General Elec. Astrospace, 101 F.3d 947, 951 (3d Cir. 1996)).
As to the prima facie case, Defendants argue only that Plaintiff cannot establish a prima
facie case because they decided to consider no candidates internal to Merck. Defendants have
failed to show that this has any relevance to the legal requirements for making out a prima facie
case. Defendants have failed to raise any relevant objection to Plaintiff’s prima facie case.
Rather than relating to the prima facie case, Defendants’ contention that Merck decided
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to consider only external candidates goes to the legitimate, non-discriminatory reason for not
hiring Plaintiff for the position. For the purpose of this motion only, this Court finds that
Defendants have failed to meet their burden of articulating a legitimate reason for not hiring
Plaintiff: as Plaintiff responds in opposition, in essence, how is this, as articulated, a legitimate
reason for not hiring her? As expressed in Defendants’ brief, this explanation is barely more than
no reason at all. Defendants have failed to articulate why they decided not to consider internal
candidates like Plaintiff. No reasonable finder of fact could conclude that Merck has articulated
a legitimate, non-discriminatory reason for not hiring Plaintiff for this position.
Furthermore, Plaintiff has pointed to evidence that she was not only considered for the
position of Interim Vice President of Global OE, but that she would have gotten it but for her
maternity leave. This is sufficiently powerful evidence that she was qualified for the Vice
President of Global OE position, and that the articulated reason – the mysterious exclusion of
internal candidates – is a pretext for illegal discrimination, that this claim should go to the jury.
As to the claim of discriminatory failure to hire her for the Vice President of Global OE
position, Defendants have failed to articulate a legitimate, non-discriminatory reason for not
hiring Plaintiff for this position. As such, they have failed to show that they are entitled to
judgment as a matter of law. As to this claim, Defendants’ motion for summary judgment will be
denied.
C.
NJLAD: retaliatory termination
Defendants move for summary judgment on the Third Count, alleging retaliation for
activity protected by the NJLAD. Defendants make three arguments: 1) Plaintiff cannot
establish a prima facie case; 2) Defendants can articulate a legitimate, non-discriminatory reason;
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and 3) Plaintiff has no evidence that this reason is pretextual.
The New Jersey Supreme Court has set forth the following requirements for retaliation
claims under the NJLAD:
To establish a prima facie case of discriminatory retaliation, plaintiffs must
demonstrate that: (1) they engaged in a protected activity known by the employer;
(2) thereafter their employer unlawfully retaliated against them; and (3) their
participation in the protected activity caused the retaliation.
Craig v. Suburban Cablevision, 140 N.J. 623, 629-630 (1995). Defendants argue, inter alia, that
Plaintiff has no evidence that she engaged in activity protected by the NJLAD.
Plaintiff contends that she made complaints to Defendants which qualify as protected
activity. The Third Circuit uses the following principles to determine whether complaints qualify
as activity protected by NJLAD:
First, case law has established that opposition to an illegal employment practice
must identify the employer and the practice - if not specifically, at least by
context. For example, in Barber v. CSX Distribution Services, 68 F.3d 694,
701-02 (3d Cir. 1995), we held that a letter to an employer’s Human Resources
Department was not protected activity because it did not specifically complain
about age discrimination. The letter, which stated that the plaintiff felt that the
position was given to a less qualified person, was too vague to constitute
opposition to an unlawful employment practice of his employer because it neither
“explicitly or implicitly” alleged that a protected characteristic was the basis for
the adverse employment action.
Curay-Cramer v. Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130 (3d Cir. 2006). Thus,
to qualify for protection, a complaint must explicitly or implicitly allege that a protected
characteristic was the basis for the adverse employment action.
Plaintiff’s opposition brief does not point to any evidence of any activity that satisfies this
test. Plaintiff’s brief cites the evidence as follows: “PSOF ¶¶ 109-113, 150-162, 311, 445-472,
526-529 & Exhibits; PoppDSOF, ¶ 113.” (Pl.’s Opp. Br. 77.) None of these points to evidence
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of qualifying protected activity. Paragraphs 109 through 113 concern Plaintiff’s meeting with
Scalet on February 15, 2006. Nothing in the factual statements or in the underlying evidence
shows that Plaintiff complained of an adverse action on the basis of pregnancy or gender.
Plaintiff’s answer to interrogatory No. 7, describing that meeting, does not show that Plaintiff
made any complaints about adverse employment actions. (Ex. 35 at 14.) Nor does the cited
deposition testimony describe any such complaints. (Colicchio Dep. pp. 142-143, 185-186.)
Paragraphs 150 through 162 concern Plaintiff’s 2005 year-end review, which she received
in March of 2006, and her response to that review. Nothing in the factual statements or in the
underlying evidence shows that Plaintiff complained of an adverse action on the basis of
pregnancy or gender. The factual statements cite a March 15, 2006 email from Plaintiff to
Scalet. The copy of the email in evidence shows no complaints of adverse action on the basis of
pregnancy or gender. (Ex. 6.) Nor does the cited deposition testimony describe any such
complaints. (Colicchio Dep. pp. 133-137.)
Paragraph 311 concerns complaints to LaBauve. Nothing in the factual statements or in
the underlying evidence shows that Plaintiff complained of an adverse action on the basis of
pregnancy or gender. The cited deposition testimony does not describe any such complaints.
(Colicchio Dep. pp. 169-178.) The deposition testimony describes complaints about her
treatment by Defendants, but does not explicitly or implicitly state that she received this
treatment because of a protected characteristic.
Paragraphs 445 through 472 concern Plaintiff’s 2006 year-end review and her response to
that review. Nothing in the factual statements or in the underlying evidence shows that Plaintiff
complained of an adverse action on the basis of pregnancy or gender. Plaintiff cites to her
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answer to interrogatory no. 11, concerning a “dialogue with Human Resources” that began in the
Fall of 2006. (PSOF ¶ 445.) Nothing in the interrogatory answer shows that, in this dialog,
Plaintiff explicitly or implicitly stated that she received adverse treatment because of a protected
characteristic. Plaintiff cites to an email she sent Mirian Graddick-Weir on March 8, 2007,
which complains of harassment, but does not explicitly or implicitly refer to pregnancy or
gender. (Ex. 79.) Plaintiff cites to a summary of employment difficulties to review with
managers. (Ex. 80.) This summary is quite articulate and detailed about adverse actions Plaintiff
experienced at work but, other than noting that these problems started after she returned from
maternity leave, nothing explicitly or implicitly indicates that she received adverse treatment
because of a protected characteristic. Nor does the cited deposition testimony, nor the other
documents cited, describe any such complaints. (Colicchio Dep. pp. 2234, 235-237, 239-248,
256-260; Exs. 10, 68, 81, 82, 83, 84, 85.)
Paragraphs 526 through 529 concern Plaintiff’s complaints about the changing
requirements for her Black Belt Certification. Nothing in the factual statements or in the
underlying evidence shows that Plaintiff complained of an adverse action on the basis of
pregnancy or gender. Nor does the cited deposition testimony, nor the other documents cited,
describe any such complaints. (Colicchio Dep. p. 273; Exs. 10, 35, 89.) While the cited
deposition testimony does mention a “pattern of discrimination,” Plaintiff does not assert in that
testimony that this pattern is based on pregnancy or gender. (Colicchio Dep. p. 273.)
Similarly, Plaintiff’s deposition testimony that she complained to Joe Morrisey about
4
This deposition testimony describes a statement about the timing of hostility, which
occurred in time after Plaintiff’s return from maternity leave. It does not describe a complaint
about hostility in response to or about Plaintiff’s maternity leave.
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discrimination makes no reference, explicitly or implicitly, to pregnancy or gender. (Colicchio
Dep. p. 90-91.)
In sum, Plaintiff has cited ample evidence that she complained about the treatment she
received at work. None of this evidence indicates that she complained that she was being
discriminated against based on her pregnancy or her gender.
No reasonable finder of fact could conclude from this cited evidence that Plaintiff made
any complaints to Defendants that explicitly or implicitly alleged that a protected characteristic
was the basis for an adverse employment action. Plaintiff has failed to satisfy the requirements
for making out a prima facie case of retaliation under the NJLAD. As to the Third Count,
Defendants’ motion for summary judgment will be granted.
D.
The FMLA and FLA claims
Defendants move for summary judgment on the Fourth and Fifth Counts, for violation of
the New Jersey Family Leave Act (“FLA”) and Family and Medical Leave Act (“FMLA”).
Defendants move for summary judgment on both an interference theory and a retaliation theory.
The Third Circuit has differentiated these theories as follows:
The two theories of recovery available under the FMLA require proof of different
elements. To prove an interference claim, a plaintiff must show (1) that he was
entitled to benefits under the FMLA and (2) that his employer illegitimately
prevented him from obtaining those benefits. To prove a retaliation claim, a
plaintiff must show that (1) he invoked his right to FMLA benefits, (2) he suffered
an adverse employment decision, and (3) the adverse decision was causally related
to his invocation of his rights.
Hayduk v. City of Johnstown, 386 Fed. Appx. 55, 59-60 (3d Cir. 2010).
In response, Plaintiff has cross-moved for summary judgment only on the interference
theory. Plaintiff has not opposed Defendants’ motion for summary judgment on the retaliation
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theory, and, as to Plaintiff’s claims for retaliation in violation of FLA and FMLA, Defendant’s
motion for summary judgment will be granted.
As to the interference theory, “[i]n order to assert a claim of interference, an employee
must show that he was entitled to benefits under the FMLA and that his employer illegitimately
prevented him from obtaining those benefits.” Sarnowski v. Air Brooke Limousine, Inc., 510
F.3d 398, 401 (3d Cir. 2007). Defendants contend that Plaintiff has no evidence that Defendants
denied her benefits under either law to which she was entitled.
As noted, Plaintiff opposes this and has cross-moved for summary judgment for
interference under the FLA and FMLA. Plaintiff points to the following provisions in the
FMLA:
(a) Restoration to position.
(1) In general. Except as provided in subsection (b), any eligible employee
who takes leave under section 102 [29 USCS § 2612] for the intended
purpose of the leave shall be entitled, on return from such leave-(A)
to be restored by the employer to the position of employment held
by the employee when the leave commenced; or
(B)
to be restored to an equivalent position with equivalent
employment benefits, pay, and other terms and conditions of
employment.
29 U.S.C. § 2614. It is clear, at this juncture, that there are factual disputes over whether
Plaintiff was restored to an equivalent position with equivalent terms and conditions of
employment. This is a matter for the jury. As to the claims of FLA and FMLA interference, both
Defendant’s motion and Plaintiff’s cross-motion will be denied.
The Court notes that Defendants’ reply brief raises a new argument in support of their
motion for summary judgment: as a matter of law, once a person’s leave exceeds 12 weeks, the
statutory protection for job restoration ceases. This is a new argument on reply; Defendants did
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not raise it in their moving papers. As a matter of procedure, this Court will not accept
arguments offered for the first time in the reply brief, as they were not properly asserted in the
opening brief and Plaintiff has not had the opportunity to respond to them. Anspach v. City of
Philadelphia, 503 F.3d 256, 258 n.1 (3d Cir. 2007) (“failure to raise an argument in one’s
opening brief waives it”). The Court will not reach this argument on these motions.
E.
NJLAD aiding and abetting
Defendants move for summary judgment as to liability against the individual defendants
under the NJLAD, contending that “an individual accused of alleged discriminatory acts cannot
be held liable under the aiding-and-abetting theory.” (Defs.’ Br. 33.) This argument, while not
unreasonable, cannot succeed, given the New Jersey Supreme Court’s decision in Cicchetti v.
Morris County Sheriff's Office, 194 N.J. 563, 595 (2008). In Cicchetti, the New Jersey Supreme
Court accepted as viable the theory that the supervisors accused of being the principal
discriminators could be held individually liable as aiders or abettors. Id. The Court held that
such a theory could succeed if the plaintiff proved their active and purposeful conduct. Id.
Given the analysis in Cicchetti, Defendants’ argument that a principal wrongdoer cannot aid and
abet his own wrongful conduct misses the mark. As to this point, the motion for summary
judgment will be denied.
F.
Punitive damages
Defendants move for summary judgment on the availability of an award for punitive
damages, contending that Plaintiff cannot demonstrate conduct that meets the legal standard for
such damages. The parties agree that such damages are available only where a plaintiff has
demonstrated that a defendant’s behavior was particularly egregious. Given that this Court has
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decided that many issues of Defendants’ alleged discriminatory and retaliatory conduct should go
to the jury, there is no reason at this juncture to bar the jury from considering an award of
punitive damages. As to this issue, Defendants’ motion for summary judgment will be denied.
CONCLUSION
Plaintiff’s cross-motion for summary judgment is denied. Defendants’ motion for
summary judgment is granted in part and denied in part. Summary judgment in favor of
Defendants is granted on two issues: 1) Plaintiff’s claims of retaliation, in violation of NJLAD;
and 2) Plaintiff’s claims of retaliation, in violation of FLA and FMLA. As to all other issues,
Defendants’ motion for summary judgment is denied.
s/ Stanley R. Chesler
STANLEY R. CHESLER, U.S.D.J.
Dated: November 16, 2012
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