SKOORKA v. KEAN UNIVERSITY et al

Filing 130

OPINION. Signed by Judge Kevin McNulty on 6/2/2015. (nr, )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Civ. No. 09-3428 (KM)(MAH)

BRUCE M. SKOORKA,
Plaintiff,

OPINION

v.
KEAN UNIVERSITY, et al.,
Defendants.

Dr. Bruce M. Skoorka is a tenured associate professor of Economics and
Finance at Kean University. Over the course of his employment, he has
frequently complained of discrimination and alleged other illegal or wrongful
conduct by persons affiliated with Kean. He filed an action against Kean in New
Jersey state court in 2001 (a suit he ultimately lost at trial). In the current
action, he alleges that Kean has retaliated against him for bringing that state
action and for blowing the whistle on discrimination and illegal conduct. He
alleges in addition that Kean has discriminated against him on the basis of his

religion. Skoorka also sues his union, alleging that it should have forced Kean
to address his complaints.
The defendants have filed motions for summary judgment as to all
counts. With respect to the Union defendants, I will grant the motion as to all
counts. With respect to the Kean defendants, I will generally grant the
summary judgment motion, but deny it in part as to a portion of Count One
(Title VII). In short, what remains of the case is a portion of the Count One
retaliation claim under Title VII, asserted against the institutional Kean
defendants only.
Skoorka complains of workplace frustrations familiar to many: needs
unmet, requests denied, merit unrewarded. Given the circumstances as he
perceives them, resentment is only human. Skoorka’s gripes, however, tend
1

toward the diffuse and unremarkable. Typically, he speaks in generalities, often
omitting the who-when-and-where of any particular occurrence. In some cases
he does not even connect his complaints to any act by the defendants, but
simply posits that they are to blame. In others, he excoriates the defendants for
withholding benefits he did not ask for. And finally, he has attempted to revive
a litany of rejected claims, dating back to the late 1990s, by recasting them as
the bases for a claim of retaliation. What is lacking for the most part is
evidence sufficient to create a genuine issue of fact that is material to a federal
or state cause of action.

Background
Early complaints
Skoorka began working for Kean in 1996. Skoorka 1 *1.1 He was awarded
tenure effective as of the 2001—02 academic year. Id. at *3 Over the course of
his employment, Skoorka has lodged a number of complaints.

1

Citations to the record will be abbreviated as follows:
“Kean Mot.” Memorandum of Law In Support of Kean Defendants’ Motion for
Summary Judgment, Dkt. 117-2.
—

“Skoorka Dep. I” Deposition of Bruce M. Skoorka, dated February 4, 2014, Dkt.
No. 123-5, Exh. 3.
—

“Skoorka Dep. II” Deposition of Bruce M. Skoorka, dated February 10, 2014, Dkt.
No. 123-6, Exh. 4.
—

“Skoorka I’ Skoorka v. Kean Univ., No. A-1654-05T5, 2007 WL 2460160, at *1
(N.J. Super. Ct. App. Div. Aug. 30, 2007).
-

“Skoorka II” Skoorka v. Kean Univ., No. A-5618-08T2, 2011 WL 3667664, at *10
(N.J. Super. Ct. App. Div. Aug. 23, 2011)
-

“Skoorka Opp. to Kean Mot.” Plaintiff’s Memorandum of Law In Opposition to
Kean Defendants’ Motion for Summary Judgment, Dkt. No. 123-1.
“Skoorka Stmt.” Plaintiff’s Statement of Disputed Facts Under Loal Rule 56.1 in
Opposition to Kean Defendants’ Motion for Summary Judgment, Dkt. No.
Skoorka Stmt..
-

—

“Union Mot.” Brief in Support of Union Defendants’ Motion for Summary
Judgment, Dkt. 119-1.
—

2

For example, sometime before 1998, Skoorka complained internally that
the Chairperson of his department, defendant William Kempey, had
discriminated against an African American colleague because of his race. Id. at
*1. Later, Skoorka complained that the University was discriminating against
Skoorka himself because he is Jewish. Id. at *3• He alleged that the University
had refused to promote him and that members of the University had harassed
him because of his religion. Id. Skoorka also complained internally about what
he regarded as illegal conduct by the University. He alleged that defendant
Kempey was misappropriating funds from the Economics Department for his
personal use. Id. at *2. He based that accusation of embezzlement solely on his
observation that the department lacked office supplies, copiers, printers, or
secretarial support. Id. at *2.
The 2001 State court action

In November of 2001, Skoorka brought a state court action against Kean
University, his union, and several individual defendants. He alleged that the
University and the union had discriminated against him on the basis of his
religion, had retaliated against him for reporting discriminatory and other
illegal conduct, and had violated his rights under the First Amendment and the
Equal Protection Clause. He brought claims under the Conscientious Employee
Protection Act, the New Jersey Law Against Discrimination, Title VII of the Civil
Rights Act, and 42 U.S.C. 1983. Id. at *5

§

That suit took some ten years, two jury trials, and at least two written
opinions from the Appellate Division to fully resolve itself (although the
Appellate Division observed that Skoorka’s case was “always weak.” Skoorka H,
1). At trial, the parties agreed that they would not offer evidence of any events
occurring after February of 2002. Id. at *5 Some issues were decided by the

*

trial court on summary judgment; others Skoorka voluntarily dismissed; and
the rest were resolved in favor of the defendants by a jury. Most pertinently, the
jury in the second trial found that Kean had not discriminated against Skoorka

3

2
in the promotion process. In the end, Skoorka was unsuccessful on all counts
of his complaint. The Appellate Division affirmed the trial court’s rulings, as
well as the jury’s verdict, in August of 2011. See Skoorka II.

EEOC complaint and prior federal court actions
While his suit was proceeding in state court, Skoorka brought other
claims against the defendants before the EEOC and in federal court.
On July 24, 2006, Skoorka filed a charge of discrimination with the
EEOC. He alleged that the defendants were continuing to discriminate against
him on the basis of his religion, and that they were retaliating against him for
voicing grievances and filing his state court lawsuit. (123-5, Exh. 1)
On April 6, 2007, Skoorka brought an action in this federal court, raising
similar claims. (See No. 07-cv-1629, Dkt. 1). That case was assigned to District
Judge William J. Martini. Skoorka named as defendants Kean University, the
Board of Trustees of Kean University, William Kempey, Dawood Farahi, Vinton
Thompson, Alfred Ngome Ntoko, and the State of New Jersey (collectively, the
“Kean defendants”). He also named as defendants the Kean Federation of
Teachers, the Council of New Jersey State College Locals, the American
Federation of Teachers, and Maria del C. Rodriguez (collectively, the “Union
defendants”). In October of 2007, Judge Martini dismissed the American
Federation of Teachers from the case. (See No. 07-cv-1629, Dkt. 23)
On March 20, 2009, the parties entered into a consent order wherein
Judge Martini dismissed Skoorka’s case, but granted him leave to refile his
complaint within 120 days. The order stipulated that if Skoorka refiled his
complaint, the date of filing would relate back to April 6, 2007, the date that he
filed his federal lawsuit. (See No. 07-cv-- 1629, Dkt. 32 at 2.)

The verdict sheet asked the following question: “Do you find that the plaintiff
Bruce Skoorka has proven that it is more likely than not that Kean University engaged
in intentional discrimination by not promoting him because he is Jewish?” The jury
answered “No.” Skoorka H, *11.
2

4

The complaint in this action
Near the end of that 120 day period, on July 9, 2009, Skoorka refiled his
complaint. That new complaint—the one now before this Court—was nearly
identical to the 2007 complaint, but it did add a few incidents that had
allegedly occurred in the interim. The new complaint was given a new case
number, 09-cv-3428, and was assigned to Judge Hayden. In September of
2009 the case was reassigned to Judge Linares. (See Dkt. 4.) Finally, in August
of 2012, the case was reassigned to me. (Dkt. 75)
This complaint contains four counts: Count I (discrimination and
retaliation in violation of Title VII of the Civil Rights Act); Count Two (New
Jersey Conscientious Employees’ Protection Act (“CEPA”)); Count Three (New
Jersey Law Against Discrimination (“NJLAD”) /discrimination); and Count Four
(NJLAD/retaliation). Skoorka alleges that the Kean defendants discriminated
against him based on his religion, in violation of Title VII of the Civil Rights Act
(Count One) and NJLAD. He also alleges that Kean retaliated against him
because he engaged in two categories of protected activity: First, he reported
suspected illegal conduct by members of the University. With respect to these
reports, Skoorka brought retaliation claims under NJLAD (Count Four) and
CEPA (Count Two). Second, Skoorka says he complained about racial and
religious discrimination within the University. With respect to these complaints
of discrimination, Skoorka brought retaliation claims under Title VII (Count
One), NJLAD (Count Four), and CEPA (Count Two).
The facts alleged in the Complaint, summarized briefly, are as follows.
Skoorka alleges that he filed EEOC complaints, filed his 2001 lawsuit and
subsequent appeals, reported alleged corruption within Kean University, and
reported plagiarism by a member of the Kean faculty. In retaliation for these
activities (or, alternatively, to discriminate against him because of his religion)
the Kean defendants allegedly took numerous actions against Skoorka. (See
discussion at Parts I and III.C, infra.) Briefly, Skoorka alleges that the
defendants have caused him to be subjected to tax audits, have failed to deliver
messages to him, have defamed him, have falsified student complaints against
5

him, have refused to post grades for his classes in a timely manner, have dealt
unfairly with him in connection with office hours, have broken into his office
and computer, have twice left a dead rodent near his home, have failed to
promote him, have intentionally assigned him an undesirable schedule, have
asked him to submit to a performance review, have refused to supply him with
a secure parking space, have interfered with his teaching schedule at another
university, have refused to provide him equipment and basic office supplies,
and have interrupted his classes to verbally abuse him.

The Southern District action, now transferred

On June 27, 2014, Skoorka filed yet another complaint, this time (for
reasons that are not clear) in the Southern District of New York. (See No. 14cv-456 1) That complaint names as defendants Kean University, the Board of
Trustees of Kean University, the State of New Jersey, William Kempey, and
Dawood Farahi; it also names the Kean Federation of Teachers, the American
Federation of Teachers, and the Council of New Jersey State Locals. That SDNY
complaint simply incorporates by reference an EEOC complaint filed on
January 30, 2014. The retaliatory actions alleged there seem to mirror
allegations that Skoorka makes in this case: alterations to his course schedule

(J

17-24); failure to promote

and the rodent incident

(

(IJ

26); failure to provide a parking space

(J

29);

30). The SDNY complaint adds an allegation that

Kean has paid him less than it paid his peers

(J

28). That case was transferred

from the Southern District of New York to this district on July 18, 2014, given
docket no. 14-cv-4561, and assigned to me. (No. l4-cv-4561 Dkt. 5) It has not,
however, been consolidated with this case.

The motions now before this Court

Now before this Court are the motions of the Kean defendants and the
Union defendants for summary judgment as to all counts. I summarize my
holdings as follows.

6

In determining whether Skoorka has made out a prima facie case of
discrimination or retaliation, I have been forced to conduct a preliminary
screening of Skoorka’s multifarious allegations. Most fail to meet the minimal
threshold of possessing record support. By that I mean that there is not
sufficient evidence to permit an inference that they occurred at all, that
defendants had anything to do with them, or that they were retaliatory.
Next, I find that, as a matter of law, Skoorka’s filing of a CEPA claim
waives his NJLAD claim of retaliation, but does not waive any other claims. I
then hold that, under CEPA, Skoorka has not made out a prima facie case of
retaliation. Under the more forgiving standards of Title VII, however, he has
made out a prima facie claim as to certain alleged acts of retaliation. He has
not made out a prima facie case of religious discrimination.
Finally, I grant summary judgment as to all of the claims against the
Union defendants. There is not sufficient evidence in the record that the Union
deliberately chose not to press any grievance on Skoorka’s behalf.
In short, the only claim to survive summary judgment, and that only in
part, is Skoorka’s Title VII claim of retaliation as asserted against Kean.

Discussion

Claims of religious discrimination and retaliation under Title VII or
NJLAD follow the burden-shifting regime of McDonnell Douglas Corp. v. Green,
411 U.S. 792 (1973). Peper v. Princeton Univ. Bd. of Trustees, 389 A.2d 465,
478 (1978); Abramson v. William Paterson Coil, of New Jersey, 260 F.3d 265,
281 (3d Cir. 2001). The plaintiff must make out a prima facie case of
discrimination. The burden then shifts to the defendant to articulate a
legitimate, non-discriminatory reason its action. The burden then shifts back to
the plaintiff to show that the reason the defendant offered was pretextual or
otherwise unworthy of belief. Araujo v. New Jersey Transit Rail Operations, Inc.,

708 F.3d 152, 158 (3d Cir. 2013).
Here, the defendants have not offered a second-step showing of a
legitimate, non-discriminatory reason for the actions Skoorka alleges. Rather,
7

they argue that Skoorka’s claims fail at the first step: he has not made out a
prima facie case of discrimination. In determining whether Skoorka has made
out a prima facie case, I first identify the factual allegations that have sufficient
record support to be considered on summary judgment.

I.

Allegations of Discrimination or Retaliation

Skoorka alleges that the Kean defendants retaliated against him for
complaining of discrimination and other unlawful activities, and also that they
discriminated against him on the basis of religion. Proving retaliation or
discrimination requires a showing that the employer took some adverse action
against the employee. For a Title VII discrimination claim, the definition of an
adverse action is broader than it is for a retaliation claim. Each requires,
however, that the plaintiff demonstrate some sort of negative action at his
employer’s hands.
Because the alleged adverse actions—some fifteen in number—relate to
more than one count, I initially consider whether they possess enough record
support to create a genuine material issue. Skoorka cannot, for example, use a
particular event to make out a prima facie case of discrimination if there is not
sufficient evidence in the record that the event actually happened. Nor can he
use it to make out a case of retaliation if he cannot connect it to any of the
defendants. I have considered these alleged incidents individually, and also in
combination. Of the fifteen events that Skoorka alleges, twelve do not have
enough support in the record, alone or in combination with the others, to
warrant consideration. I discuss the evidence for each.
A. Allegations lacking sufficient support in the record
1) Tax audit

Skoorka alleges that the defendants “have caused him to be the subject
of continuing tax audits.” (Compi.,

¶

104; Skoorka Stmt.,

¶

269) Skoorka has

not so much as specified the years that he was audited; he says only that the

8

3
audits occurred “early on.” (Skoorka Dep. I, 154) He has not explained how
any of the defendants might have caused a public agency to initiate a tax audit
against him. He has not even alleged with specificity that they did so; he simply
attributes the audits to them.
This tax-related claim finds no support in the summary judgment record.
I will not consider it in my analysis.
2) Interception of messages
Skoorka says that students would leave notes in his mailbox but that
those notes would disappear before he could collect them. (Skoorka Dep. I,
117) Skoorka also says that students would leave messages with the
department secretary, but that he did not receive them. Id. at 117; Skoorka
Stmt.,

¶

270. He identifies no specific instances. He offers no affidavit or

testimony from any student who claims to have left a message for him. I will
not consider for its truth any unattributed hearsay testimony—for example, any
statement that an unnamed person told Skoorka that there had been a
message. See generally FED. R. Civ. P. 56(c)(2) (on summary judgment, court
may consider admissibility of proffered evidence).
The allegation that Kean retaliated against Skoorka by intercepting his
messages lacks any significant record support. I will not consider it.

3) Defamation
Skoorka alleges that the defendants have “public[ly] defamed and
humiliated Dr. Skoorka based on false and fabricated accusations against
him.” (Skoorka Stmt.,

¶

281; Compi.

¶

81) He does not identify any particular

statement. He refers generally to “statements about Dr. Skoorka in opposition
papers filed in connection with Dr. Skoorka’s appeal in the 2001 lawsuit.”
These, he says, “implicitly and falsely accus[edj him of academic dishonesty.”
In his 2001 state court action, Skoorka likewise alleged that the defendants had
caused him to be subject to a tax audit. Skoorka 1 *5 His current tax-related
allegations may therefore duplicate those in his earlier, unsuccessful state court
action. It is impossible to tell.
9

(Skoorka Stmt.,

¶

282) Skoorka provides no evidence that the statements were

untrue, or that the defendants knew the statements were untrue when they
made them. Presumably any factual statements in the University’s papers in
4
opposition to Skoorka’s appeal were based on the record at the state court trial.
Certainly I cannot assume, absent evidence, that they were not. The evidence of
defamation is neither substantial nor specific, and I will not consider it.
4) Falsified student complaints
Skoorka alleges that the defendants have “falsified student complaints
against Dr. Skoorka and/or instigated false student complaints against him.”
(Skoorka Stmt.,

¶

291). Skoorka testified in a deposition that “there was an

attempt to get some students to make some other complaints about me.”
(Skoorka Dep. I, 136) He did not, however, identify any particular complaint,
provide evidence that it occurred, or submit evidence that it was false.
Skoorka refers vaguely to an incident where a director of disability
services at the University allegedly accused Skoorka of discriminating against
students with disabilities. (Skoorka Dep. I, 136) He gives no names, dates, or
other specifics. He does not factually connect the incident to any retaliatory
motive. And according to Skoorka himself, “[t]he students themselves denied it.
So, that went away.” Id. at 136.
5) Posting of Grades
Skoorka’s statement of facts alleges that the defendants “intentionally
failed and refused to timely process and post grades for students in Dr.
Skoorka’s classes.” (Skoorka Stmt.,

¶

273) He also alleges that the defendants

“changed the grades of Dr. Skoorka’s students, behind Dr. Skoorka’s back and
without his permission.” (Id.) Again, Skoorka identifies no specific examples,
I note in addition that these may be barred by res judicata and the entire
controversy doctrine, although once again Skoorka’s lack of specificity makes it
impossible to say for certain. I observe in passing that such in-court statements would
likely be privileged against a claim of defamation. See Erickson v. March & McLennan
Co., 569 A.2d 793, 805 (N.J. 1990).
10

gives no details such as names or dates, and provides no evidence. The only
supporting citation is to his own deposition, which is no more specific.
(Skoorka Dep. II, 158-159)
There is no specific evidence that any tampering with grades occurred,
that it was impermissible, or that it was connected to discrimination or
retaliation.
6) Office hours
Skoorka alleges that the Kean Defendants have taken inappropriate
action against him with respect to office hours.
For example, he says that the University “falsely accused” him of
violating the University’s office hours policy. (Compl.,

¶

70) The documentary

evidence that Skoorka cites contains nothing of the kind. It consists of routine
logistical or scheduling communications. For example, Skoorka attaches a
memo from defendant Kempey stating that Skoorka’s office hours conflicted
with his teaching schedule. (123-8, Exh. 21, 1949) Skoorka responds by email
that they do not. Id. at 794. Nothing further on the subject appears in the
record.
Skoorka produces an email from himself to a member of the university
administration. In that email, Skoorka says that, although the University had
notified him that he had not posted office hours, he had in fact done so. (123-8,
Exh. 23, 21) In another email, apparently a follow-up, an administrator
acknowledges that Skoorka has updated his office hours. Id. at 21. None of this
amounts to any kind of inappropriate or adverse action.
Skoorka also alleges that the Kean defendants “required Plaintiff to
maintain undesirable office hours.” (Skoorka Stmt.,

¶

241) He explains no

further. It stands to reason that a professor would be required to maintain
office hours of some kind. Skoorka has not produced any evidence, however,
that “undesirable” hours were forced upon him. There is no evidence that
Skoorka’s hours differed in any way from those of other faculty members.

11

Skoorka does say that other faculty maintained hours similar to his, and
“were permitted to do so without any adverse action taken against them.”
(Skoorka Stmt.,

¶

246) But Skoorka provides no evidence that any office-hours-

related “adverse action” was taken against him, either. See supra. Skoorka says
that other faculty skipped their office hours, and that the University
“condoned” this practice. Id. at

¶J

250-252. Skoorka does not identify any

particular example of that. Nor does he establish that he was reprimanded for
skipping office hours. From this record, I can draw no inference of disparate or
adverse action.
There is simply no evidence to that Skoorka’s dealings with the
university regarding office hours were even mildly negative, let alone retaliatory
or discriminatory.
7) Office and computer break-ins

Skoorka says the Kean defendants have repeatedly broken into his office
and his computer. Skoorka testified in general that the break-ins have been
occurring since 1999. (Skoorka Dep. I, 108-09)
One incident that Skoorka characterizes as a break-in occurred in April
2003. The record reflects, however, that the campus IT Department accessed
Skoorka’s computer to upgrade its software. (123-8, Exh. 24, 2585)
Skoorka alludes to another incident in 2009. In support, he provides an
email from himself to Charles Anderson stating that his office had been broken
into. Anderson responds, however, that two other offices had been broken into
as well (and that computers had been stolen). (123-9, Exh. 38) And there is no
evidence that defendants were involved in any such break-in.
Another incident, in 2011, consisted of the IT Department’s removal of “a
lot of spyware and a couple of viruses” so that Skoorka’s office computer would
“run faster.” (123-8, Exh. 24, 296) Routine maintenance of an office computer
is not a break-in, or an adverse employment action.
There is insufficient evidence of office or computer break-ins, retaliatory
or otherwise. I will not consider them.
12

8) Rodent incidents
Skoorka alleges that the defendants made “death threats” by twice
leaving a dead rodent in front of his home. There is nothing, however, to
connect the defendants to the dead rodents.
Skoorka alleges that in July of 2007 he found a “large rodent-like animal,
with a severed head” in front of his home. (CompL, ¶ 107; Skoorka Dep. I, 154)
Skoorka filed a police report indicating that the animal had been on his
sidewalk for two days, but that he did not see who had put it there. (123-9,
Exh. 36, 2512) Skoorka had the carcass examined by a doctor of forensic
pathology, who identified it as an opossum. This expert opined that the animal
was “most probably a laboratory specimen that was killed and severed by a
human being.” Id. at 2515. The expert found the circumstances to be
suspicious: “The finding of such an animal, severed into two parts, near the
front door of an individual’s home, is strongly indicative of its deliberate
placement at that location.” Id. at 2515. Skoorka alleges that he found a
second dead rodent near his home in December of 2013. That second animal
had not been decapitated. (Skoorka Dep. I, 155)
Skoorka alleges that in both cases, the rodent was planted deliberately
by one of the defendants with the intent that it be understood as a death
threat. It was, he says, “the old horse’s head paradigm, except it was an
5
opossum.” (Skoorka Dep. II, 165; see also Skoorka Dep. I, 155) Skoorka,
though, provided no evidence—not even circumstantial evidence—that any
defendant was involved in leaving the rodent carcasses near his home.
In Skoorka’s telling, this was a bonsai version of an iconic scene from The
Godfather (I) (Paramount Pictures, 1972). There, a fictional organized crime family
terrorizes an uncooperative movie producer by slipping a severed horse’s head into his
bed. The notoriety of this, “one of the most famous scenes in film history”
(http: / / en.wikipedia.org/wiki/Jack_Woltz), might lend some minimal plausibility to
Skoorka’s claim that the incident should be interpreted as a threat. But the rodent
was not, like the race horse, the subject’s prized possession; it was on the sidewalk,
not in the subject’s bed; its presence on the sidewalk is not otherwise inexplicable;
and the incident did not allegedly occur in close temporal proximity to any alleged
provocation by the subject.
5

13

(Skoorka Dep. I, 155-56, 159-60) There is no way to determine whether this
was a coincidence, the act of a disgruntled neighbor, or something else.
Without some minimal evidence connecting the defendants to this incident, it
cannot serve as evidence of employment discrimination or retaliation.

9) Failure to promote

Skoorka, who has tenure, alleges that the Kean defendants have
wrongfully failed to promote him from associate professor to full professor, and
that the Union failed to support his promotion. (Compl.,

¶ 54; Skoorka Stmt.

¶ 160; Skoorka Dep. II, 95-97, 99-100) Skoorka, though, has not made out a
claim that the defendants’ failure to promote him amounts to religious
discrimination or a retaliatory adverse action.
First, Skoorka acknowledges that Kean has a process in place for
promoting professors. A professor submits an application to a promotion
committee within his own department; that committee recommends a
disposition to a university committee; the university committee ranks all the
applicants for promotion and submits a recommendation to the Board of
Trustees and the President of the university; and the Board and the President
ultimately approve or reject the proposed promotion. (Skoorka Dep. I, 34-35;
Skoorka1 *23)
But Skoorka has not applied for promotion since 2002. That is the last
actual denial of promotion. Since then, he has not initiated the University’s
promotion process. He considers himself to have a “standing application for
promotion,” because the University knows that he wishes to be promoted. He
further suggests that an application for promotion would have been “futile.”
(Skoorka Dep. I, 34; Compl.,

¶ 54). Nonetheless, he concedes that his last

actual application for and denial of promotion occurred in 2002.
Under the University’s established procedures, denial of promotion is a
discrete and identifiable act. The University’s later, ongoing failure to bestow a
promotion sua sporite is simply too vague and diffuse to constitute an

14

identifiable adverse or retaliatory action 6 Cf AMTRAK v. Morgan, 536 U.S. 101,
115, 122 S.Ct. 2061 (2002) (For Title VII statute of limitations purposes,
“[d]iscrete acts such as

...

failure to promote

...

are easy to identify. Each

incident of discrimination and each retaliatory adverse employment decision
constitutes a separate actionable ‘unlawful employment practice.”’) (emphasis
added).
Second, to the extent that Skoorka is alleging that the University’s failure
to promote him in 2002 is actionable here, that claim would be barred by res

judicata and the statute of limitations, for the reasons stated in Part V, infra.
Third, even setting aside timing issues, Skoorka concedes that he does
not meet the criteria for promotion. He explained in deposition that there are
several areas that the University considers in deciding whether to promote a
professor: Teaching quality; academic service (like creating new courses and
sitting on committees); research and publications; professional growth (“nobody
even knows what that means,” says Skoorka); and community service.
*3 (“The criteria for
(Skoorka Dep. I, 44). See also Skoorka I, 2007 WL 2460160,
promotion to associate professor [in 2000] were mastery of the subject matter,
continuing growth, effectiveness in teaching and community service, and
scholarly ability.”).
Skoorka acknowledges that he is ineligible for promotion, but blames the
defendants. “There are various things that you need to do to get promoted, and
none of those things I can show because of the situation I’m in.” (Skoorka Dep.
I, 38). For example, “in order to reapply, I need recommendations from faculty
who are not going to give me any recommendations, because the word is out
that, you know, to back off and not support Dr. Skoorka.” (Skoorka Dep. I, 37)

Skoorka does name five professors who, he says, were promoted without
actually applying for promotion. (123-5, ¶ 32) Whether faculty members went through
the promotion process is an ascertainable administrative fact. The Magistrate Judge
assigned to the case ordered the University to disclose in discovery whether named
faculty members had gone through the promotion process. Skoorka’s papers do not
allude to any information turned over in discovery. Skoorka simply rests on his own
say-so that certain individuals were promoted without having applied for promotion.

6

15

He says he has not sat on any committees because he has been “marginalized”
and was “pulled off every single committee that I was serving on.” He does not
name any of these committees, or provide any further specifics. (Skoorka Dep.
I, 38, 44)
Other major criteria would not seem to be subject to manipulation by the
University. Skoorka concedes, for example, that he has not published anything
since 2005, and the last publication referred to in the record occurred
sometime before 2000. (Skoorka II, *2) He identifies no examples of community
service.
Particularly in light of Skoorka’s failure to apply for promotion since
2002, there is no denial of promotion, simpliciter, that can be identified as an
adverse or discriminatory action. Out of caution, I consider the claim behind
the claim: that the University is to blame for Skoorka’s failure to meet the
relevant criteria. As to that, Skoorka would have to point to specific evidence or
identify specific events. He does not. Vague allegations that “the word is out”
simply will not do; there is no specific evidence in the record that the University
unfairly blocked him from applying for promotion or meeting the relevant
criteria.
I therefore will not consider the failure to promote Skoorka as a
retaliatory act. I also reject it as an independent claim of religious
discrimination. (See further discussion at Part V, infra.)
10)

Course schedule

Skoorka alleges that the defendants manipulated his teaching schedule
in unfavorable ways. First, Skoorka alleges that from the Spring 2006 semester
through the Fall 2008 semester, he was required to teach more than two days
per week, while several other faculty members were not. (Compl.,

¶

61)

(“Subsequent to October 18, 2005 and through at least the Fall of 2008,
Defendants allowed virtually all other members of the Department, who are
non-Jewish, who have not engaged in Dr. Skoorka’s protected activities, or who
have an unlawful quid pro quo arrangement with Dr. Kempey, to maintain a
16

two-day teaching schedule and teach classes that they want to teach. Such
faculty members included Dr. Kempey, Dr. Kim, Dr. Saffer, Dr. Condon,
Jacqueline Jonnard Griffith (now a former faculty member), and CathyAnn
Tully.”). The evidence that Skoorka presents does not support his claim.
The records cited by Skoorka demonstrate that in the Spring 2006
semester, Skoorka himself taught only 2 days per week—as did Kempey, Kim,
Saffer, and Condon. (123-6, Exh. 6, 2038) In the Fall of 2006, Skoorka taught
only two days per week. (123-6, Exh. 7, 1926, 785) For the Spring 2007 and
Fall 2007 semesters, Skoorka has provided emails in which he complains
about his schedule. But he has provided no evidence as to how many days per
week he actually taught, or how many days other professors taught. (See 1236, Exhs. 8, 9) As to the Fall 2008 schedule, the proffered evidence is similarly
inadequate. In the record is a tentative schedule as of February 2008 (123-6,
Exh. 10, 389-97), but subsequent emails indicate that the faculty were later
moved to a four-day-per-week schedule. Id. at 372. One email from Carol
Condon, for example, states that she was switched to a four-day-per-week
teaching schedule, and adds that all faculty will be keeping such a schedule.
Id. at 372 In short, there is literally no record support for Skoorka’s allegation
that he was forced to teach more days per week than his colleagues were.
Second, Skoorka alleges that in numerous years, Kean “denied” him his
“designated” course schedule. He means that Kean sometimes assigned him
courses other than the ones he requested. (Skoorka Stmt., ¶J 188, 191, 196,
205, 206, 212) However, Skoorka does not provide any evidence 1) that he was
entitled to his first choice; 2) that it was even possible for everyone to have his
or her first choice; or 3) that, in cases of conflict, other professors’ preferences
were unfairly prioritized over his.
Third, Skoorka alleges that course assignments should have been, but
were not, awarded on the basis of seniority. (Skoorka Dep. II, 106-07; Skoorka
Stmt., 177). Skoorka has failed to establish that there was a seniority-based

¶

17

7
policy. There is an email from Charles Anderson stating that requests would
be entertained. (123-7, Exh. 12) (“I prepare course listings early

—

you can

always ask me where I am and place requests for course offering (as others
often do) .“) But there is no indication that assignments were based on
seniority. Indeed, there is evidence to the contrary: An email from Charles
Anderson to Skoorka in August of 2011 says explicitly that “[s]eniority rules no
longer hold

—

you may bump an adjunct, however.” (123-8, Exh. 15, 91) At

best, the phrase “no longer” implies that seniority had been considered at some
unspecified earlier time.
In short, there is an evidentiary vacuum as to the allegedly
discriminatory course assignments. Intuitively, one would assume that some
combination of expertise, faculty availability, student demand, and general
logistics might be involved in constructing a schedule. In one email, Skoorka
himself quotes “Section 5.7.1 of the Handbook For Professional Development”
(a document not in the summary judgment record) as saying: “The primary
factors that should be considered in the construction of a schedule are listed
below: needs of students, conflict prevention, spread across time slots and
availability of rooms, availability of adjuncts, capacity to adjust, resident
faculty needs.” According to the policy as quoted by Skoorka, only after
consideration of those many factors would the convenience of faculty be
considered. (123-6, Exh. 6, 738) And seniority is not even listed as one of the
many relevant factors.
At any rate, Skoorka’s seniority-based protests refer to just two
incidents: allegedly, Doug Mackenzie and Jerry Chandra, who are junior to
Skoorka, were given priority at some point. (123-6, Exh. 6, 741) That adds up
to two incidents over the course of 14 semesters (Spring 2006 through Fall
2013) in which seniority was outweighed by other factors. That does not
suggest that Skoorka received disparate or unfair treatment. In addition, it
More commonly, a Title VII plaintiff will seek to set aside the application of an
existing seniority system based on its allegedly discriminatory purpose. See generally
42 U.S.C. § 2000e—5(e)(2).
18

appears that in the Spring 2011 semester, the University “bumped” adjunct
professors in order to accommodate Skoorka’s course selections. (123-8, Exh.
14, 695-699) That happened again in Fall 2011. (123-8, Exh. 15, 91, 93) And
in the Spring 2010 semester, Dr. Anderson stated that Dr. Skoorka’s
scheduling requests would be honored before those of a faculty member who
had just joined the department. (123-7, Exh. 12, 502)
Skoorka, therefore, has not created a genuine issue of fact as to whether
the defendants scheduled Dr. Skoorka’s courses any differently than they did
those of other faculty members.

11)

A-328 Evaluation
Tenured faculty at Kean are expected to undergo a review process,

known as “A-328 review,” every five years. (Skoorka Dep. I, 123-125; Compl.,
¶ 76) Skoorka received tenure in December of 2000, effective as of the 200 12002 academic year. Skoorka j *3• He alleges that on three occasions since
2005, the defendants have asked him to undergo the A-328 review process.
(Compi. ¶ 79; Skoorka Stmt., ¶J 296-97, 305) Skoorka says that such review
would be inappropriate while he has litigation pending against Kean
University—which has been the status quo for 13 years. (Compi., ¶ 77) He
further alleges that Kean’s attempts to make him undergo the review are
discriminatory and retaliatory.
Skoorka acknowledges that he has not actually undergone an A-328
review in his time at Kean University, even though he has been tenured for at
least 13 years. (Skoorka Stmt.,

¶ 307) He knows of no other faculty member

who had been tenured for as long as ten years and yet had not undergone an
A-328 review process. (Skoorka Dep. I, 125) He admits that he has not been
sanctioned for refusing to undergo an A-328 review. Id. at 129.
So Skoorka was asked, but not required, to undergo an A-328 review. He
admits that all other faculty members have been required to undergo such a

19

review process, and he alone has not. I fail to see how excusing Skoorka from
A-328 review—the very thing he requested—was adverse or discriminatory.
The real basis for Skoorka’s complaint seems to be a contention that,
were he to be reviewed, he would not fare well: “[I] wouldn’t be able to get fair
teaching evaluations, student evaluations and—there’s—and my research has
been hampered and so on. It’d be difficult to show—to demonstrate
professional growth. And so, it’s really just impossible to get—to provide the
materials necessary for a fair A-328 review.” (Skoorka Dep. II, 134) But he has
not been reviewed—fairly, unfairly, or otherwise.
I cannot treat that hypothetical unfair A-238 review as an adverse action.
It is not an action at all.
12)

Parking space
Professor Skoorka complains that the University has failed to provide

him with an acceptable parking place. As background, Skoorka reports that
8
from 1998 to 2004, his car was “repeatedly vandalized, damaged and/or
sabotaged at Kean. This included anti-Semitic graffiti on it, destruction and
damage to his tires, and vandalism to his mirrors.” (Compi.,

¶

98) In his 2001

state court action, he alleged that the defendants were responsible for the
vandalism. Skoorka I, *13. Those claims did not succeed, and he has now
recast them. In this action, rather than accusing the Kean defendants of
vandalizing his car, Skoorka says that they failed to provide him with a
“secure” parking space. (Skoorka Dep. I, 144)
But Skoorka didn’t ask for one. He admits that after his car was
originally vandalized (at some unspecified time prior to 2004) he did not renew
his university “parking sticker.” (Skoorka Dep. I, 145) He never spoke to
anyone at Kean about finding a more secure parking space. Id. at 149. Skoorka

This will come as no surprise to anyone familiar with life in the academy. Clark
Kerr, president of the University of California system in the 1960s, once described the
university as “a series of individual faculty entrepreneurs held together by a common
grievance over parking.” www.nytimes.com/2003/12 / 02/national! O2KERR.html.
8

20

explains that he “figured the issue was dead.” Id. at 149. His claim, then, boils
down to a complaint that the University did not sua sponte bestow upon him a
more acceptable parking space.
More generally, Skoorka has made no showing that the University is
responsible for safeguarding his car, or even that more secure facilities were
available. Although he alleges discrimination, Skoorka has not identified any
professor who possesses what he would regard as a “secure” parking space.
The parking allegations, then, cannot be considered examples of
discrimination or adverse, retaliatory action.
I have considered these twelve issues alone and in context of all of the
allegations. This is a case where twelve times zero is still zero. These allegations
share a common infirmity: they lack the minimal record support that would
permit a fact finder to conclude that they occurred, that they had any relation
to the acts of the defendants, or that they could have constituted adverse,
retaliatory, or discriminatory actions. In sum, I will not consider the twelve
issues discussed above in deciding whether Skoorka has made out a prima
facie case of discrimination or retaliation.
B. Allegations With Record Support

Three other allegations, however, pass the summary judgment threshold
in that they are supported by some evidence and are potentially material to one
or more of Skoorka’s causes of action. I enumerate them here, and discuss
them in connection with the individual claims below. They are:

13)

Interference with NYU teaching schedule

In addition to his duties at Kean, Skoorka teaches one course per
semester at New York University. (Skoorka Dep. I, 21) Skoorka alleges that the
Kean defendants have interfered with his NYU teaching schedule. (Compi.,

¶ 57; Skoorka Dep. I, 24; Skoorka Stmt., ¶ 191)
21

14)

Deprivation of office equipment and supplies

Skoorka says that the Kean defendants have refused to provide Skoorka
with basic office supplies. For instance, he says that he no longer has a
computer on campus, while other professors do. (Skoorka Dep. I, 107-108;
Compi.

276)

¶

15)

Class visits

Skoorka alleges that several other faculty members, including Bill
Kempey, David Yamoah, Eufronio Carreno, and Bert Wailo, “stalked” him.
(Skoorka Dep. I, 133; Compi.,

¶

81) By this, he means that they visited his

class without warning. (Skoorka Dep. I, 133-35) As to Kempey alone, he has
alleged that the visits were disruptive.
These three allegations possess enough specificity and record support
that I may at least consider them. And I do consider them at greater length in
connection with Skoorka’s specific claims. See infra.
II.

Whether CEPA claim waives other retaliation claims
Both sets of defendants argue that by filing a claim of retaliation under

CEPA, Skoorka waived any claims of retaliation under NJLAD. (Kean Mot., 1718). The Union defendants go one step further and argue that Skoorka has also
waived any claim of retaliation under Title VII. (Union Mot., 7-10) I hold that
Skoorka’s CEPA filing waives any claim of retaliation under NJLAD, but does
not waive any other claims.
a. Waiver of NJLAD retaliation claim
CEPA explicitly provides that instituting a claim of retaliation under
CEPA waives any claim of retaliation under another state law:
Nothing in this act shall be deemed to diminish the rights,
privileges, or remedies of any employee under any other federal or
State law or regulation or under any collective bargaining
agreement or employment contract; except that the institution of
an action in accordance with this act shall be deemed a waiver of
the rights and remedies available under any other contract,
22

collective bargaining agreement, State law, rule or regulation or
under the common law.
N.J. STAT. ANN.

§ 34:19-8. New Jersey courts have interpreted this provision to

mean that instituting a claim under CEPA will waive any state law claim that is
“substantially related,” in the sense of requiring the same proofs. Young v.
Schering Corp., 660 A.2d 1153, 1160 (N.J. 1995). Thus, for example, an NJLAD
claim, like a CEPA claim, requires proof of retaliation; the filing of a CEPA
claim therefore waives the corresponding NJLAD claim. Id. at 1153, 1155. See
*9 (N.J.
also Bauer v. Galloway Twp., No. A-4669-06T1, 2009 WL 17923, at
Super. Ct. App. Div. Jan. 5, 2009) (same); Espinosa v. Cnty. of Union, No. 01CV-3655 (WJM), 2005 WL 2089916, at *11 (D.N.J. Aug. 30, 2005) affd, 212 F.
App’x 146 (3d Cir. 2007) (drawing the same distinction). Conversely, claims
that “require different proofs than those needed to substantiate the CEPA
claim” are not waived. Young, 660 A.2d at 1160, 1161. Examples of claims that
require different proofs include defamation, slander and malicious interference
with prospective employment opportunities. Because those torts, unlike CEPA,
do not require proof of retaliation, they are not waived by the filing of a CEPA
claim. Id. at 1161.
Here, Skoorka has alleged claims of retaliation under both CEPA and
NJLAD. Those claims are substantially related. Under CEPA, the plaintiff must
show: (1) a reasonable belief that her employer’s conduct violated a law, rule,
or regulation; (2) a whistle-blowing activity; (3) an adverse employment action;
and (4) a causal connection between her whistle-blowing activity and the
adverse employment action. See Caver v. The City of Trenton, 420 F.3d 243,
254 (3d Cir.2005); Dzwonar u. McDevitt, 828 A.2d 893 (2003). Under NJLAD, a
plaintiff must show three elements: (1) he or she engaged in a protected activity
known to defendant; (2) he or she was subjected to an adverse employment
decision; and (3) there was a causal connection between the two. Bauer 2009
WL 17923 at *8. Both statutes essentially require a showing that the employer
took an adverse employment action in retaliation for a protected activity. The

23

Appellate Division and this court have therefore held that a claim of retaliation
under CEPA waives a related claim of retaliation under NJLAD. Bauer, 2009
WL 17923 at *9; Ehling v. Monmouth-Ocean Hosp. Serv. Corp., 961 F. Supp. 2d
659, 672 (D.N.J. 2013); Estate of Oliva v. New Jersey, 579 F. Supp. 2d 643,
683 (D.N.J. 2008) affd sub nom. Estate of Oliva ex rel. McHugh v. New Jersey,
604 F.3d 788 (3d Cir. 2010).
Skoorka’s CEPA and NJLAD claims are based on similar facts and
proofs. They are related, not independent. The CEPA claim therefore waives the
NJLAD retaliation claim, which must be dismissed.
That waiver is limited, however, to the NJLAD retaliation claim; it does
not waive Skoorka’s NJLAD claim that the defendants discriminated against
him outright on the basis of his religion. Like the common law claims
enumerated in Young, that discrimination claim does not require proof of
retaliation. It is not substantially related to CEPA claim, and is not waived.
Judgment will therefore be entered on grounds of waiver in favor of
defendants on Count Four (NJLAD/retaliation), but not on Count Three
(NJLAD/discrimination)

.

b. Title VII claim of retaliation not waived by CEPA claim.
The Union Defendants next argue that Skoorka’s CEPA claim waives his
claim of retaliation under Title VII. (Union Mot., 7-10) I hold as a matter of law
that it does not.

Looking ahead for a moment, I find below that Skorka’s CEPA claim fails. See
Part III, infra. The dismissal of a CEPA claim does not resurrect the waived claim of
retaliation under NJLAD. See Lynch v. New Deal Delivery Serv., 974 F. Supp. 441, 456
(D.N.J.1997) (citing Flaherty v. Enclave, 605 A.2d 301 (N.J. Ch. Div. 1992)). CEPA
states that state law claims are waived by the “institution” of a claim under CEPA; the
waiver is not contingent on the success of that claim. See N.J. Stat. Ann. § 34:19-8. A
New Jersey court has interpreted that to mean that a plaintiff whose CEPA claim
ultimately fails cannot then re-allege state law claims that had previously been waived.
Flaherty, 605 A.2d at 305. Waiver aside, the failure of proof as to the CEPA claim
would doom the related NJLAD retaliation claim in any event.
9

24

First and foremost is the plain wording of the waiver provision itself.
CEPA provides that instituting a CEPA claim waives other claims under “State
law.” N.J. STAT. ANN. § 34: 19-8 (quoted at pp. 23—24, supra). CEPA does not
provide for waiver of claims under “any law” or under “federal law.” That was
likely a conscious omission, for in the immediately preceding sentence, the
statute refers to “federal or State law.” (“Nothing in this act shall be deemed to
diminish the rights, privileges, or remedies of any employee under any other
federal or State law...”) The plain wording of the statute, then, effectuates a
waiver of State claims, not federal claims.
Second, the nature and structure of CEPA imply that the waiver should
be construed literally and narrowly. CEPA explicitly provides that it is not
meant to alter other legal rights and privileges possessed by employees. N.J.
STAT. ANN.

§ 34:19-8 (“Nothing in this act shall be deemed to diminish the

rights, privileges, or remedies of any employee under any other federal or State
law...”). The waiver provision (which does limit certain rights, privileges, and
remedies) should therefore be applied strictly. More generally, the CEPA waiver
provision operates in derogation of other remedial causes of action which are
designed to combat discrimination. Courts generally construe exceptions to
remedial statutes narrowly, and the Supreme Court of New Jersey has
specifically done so with respect to CEPA. See Young, 660 A.2d 1160. That, too,
argues against finding that institution of a CEPA claim waives a Title VII claim.
I therefore hold that Skoorka’s claim of retaliation under Title VII is not
waived by the filing of his CEPA claim.
That leaves Skoorka’s claim of retaliation under CEPA (Count Two); his
claim of retaliation under Title VII (Count One); and his claims of direct
discrimination under Title VII and NJLAD (Counts One and Three). I consider
them in that order.

25

III.

Retaliation under CEPA
a. Prima facie case

To prove a cause of action for retaliation under CEPA, a plaintiff must
establish four elements: 1) he had a reasonable belief that his employer’s
conduct violated a law, regulation, or clear mandate of public policy; 2) he
performed a “whistle-blowing” activity described in N.J. STAT. ANN. § 34: 19-3c;
3) the employer took and adverse employment action against the plaintiff; 4) a
causal connection exists between the whistle-blowing activity and the adverse
employment action. Dzwonar v. McDevitt, 828 A.2d 893, 900 (N.J. 2003);
Samowski v. Air Brooke Limousine, Inc., 510 F.3d 398, 404 (3d Cir. 2007).
b. First Prong

—

protected activity

With respect to the first prong, Skoorka has identified a handful of
occasions on which he reported illegal or unethical conduct by employees of
Kean University.

First, Skoorka points to his 2001 lawsuit, in which he accused many of
the same defendants named here of racial and religious discrimination,
retaliatory conduct, and creating a hostile work environment. See Skoorka

*

1.

Skoorka now alleges that the Kean defendants have retaliated against him for
bringing his prior lawsuit.
Second, Skoorka allegedly reported to the University that one of its
professors had committed plagiarism. In 2006, Skoorka and one of his
colleagues notified Kean University that a faculty member, Jacqueline Jonnard
Griffith, had allegedly plagiarized a doctoral candidate’s dissertation. (123-9,
Exh. 28, 1187-88) Both dissertations were published, at least in part. Id. at
1188. Ms. Griffith eventually resigned from Kean in 2007. (123-9, Exh. 29,
1627). As to the legal sufficiency of this allegation, there is room for doubt;
Skoorka seemingly reported misconduct by a fellow employee, not by his
employer, and the employer apparently acted on Skoorka’s complaint.

26

I will assume without deciding, however, that Skoorka’s reports of
wrongdoing constitute, or at least contain, some protected activities under
CEPA.
c. Second Prong

-

Adverse employment action

To make out a prima facie case of retaliation, Skoorka must show that
his employer took retaliatory action against him. Dzwonar 828 A.2d at 900;
Samowski, 510 F.3d at 404. To constitute a retaliatory action under CEPA, the
employer’s conduct must attain a certain level of severity.
CEPA defines a “retaliatory action” as “the discharge, suspension or
demotion of an employee, or other adverse employment action taken against an
employee in the terms and conditions of employment.” N.J. Stat. Ann.

§ 34:19-

2(e). Interpreting that language, courts have held that the employer’s action
must either affect the employee’s compensation or rank, or “be virtually
equivalent to discharge.” Klein v. Univ. of Med. & Dentistry of New Jersey, 871
A.2d 681, 691 (App. Div. 2005). See also Caver v. City of Trenton, 420 F.3d 243,
249 (3d Cir. 2005) (quoting same language). Other courts, however, have taken
a somewhat broader view. Examples of retaliatory conduct have included
suspensions, demotions, changes to the length of the workday, changes in
salary, hours, fringe benefits, or “physical arrangements and facilities,” and
altered “promotional procedures.” Beasley v. Passaic County, 873 A.2d 673,
685-86 (App. Div. 2005). See also Smith v. Twp. Of E. Greenwich, 519 F. Supp.
2d 493, 511 (D.N.J. 2007) affd, 344 F. Appx 740 (3d Cir. 2009), as amended
(Nov. 3, 2009) (quoting same language). A series of minor actions may, in the
aggregate, amount to retaliatory conduct. See Maimone v. City ofAti. City, 903
A.2d 1055, 1063-64 (“[M]any separate but relatively minor instances of
behavior directed against an employee may combine to make up a pattern of
retaliatory behavior”) (internal quotations omitted).
Skoorka has alleged fifteen incidents that he says constitute retaliatory
conduct. Above, I held that twelve of those alleged incidents, whether
considered separately or together, were not sufficiently supported by the record
27

to be counted towards a prima facie case of retaliation. (See Part I.A, supra).
Here, I find that the remaining three incidents (see Part I.B, supra), do not rise
to the level of an adverse employment action under CEPA.
i.

Interference with NYU teaching schedule

In addition to his duties at Kean, Skoorka has taught one course per
semester at New York University. (Skoorka Dep. I, 21) Skoorka alleges that the
Kean defendants have interfered with his NYU teaching schedule. (Compi.,

¶ 57) First, Skoorka argues that had his schedule at Kean been more
accommodating, he would have taught more courses at NYU. (Skoorka Dep. I,
24). Second, he recounts a specific instance in which the University’s alteration
to his teaching schedule interfered with his teaching schedule at NYU. The first
contention is wholly unsupported by the record. The second has some minimal
record support, but does not rise to the level of an adverse employment action.
When Skoorka says he would have taught more than one NYU course, he
is hypothesizing. There is no evidence, from Kean or from NYU, that Skoorka
ever asked to teach an additional NYU course. And there is no evidence that his
decision to teach only one NYU course was forced on him by some retaliatory
change to his schedule. Skoorka says that NYU permits him to teach only at
night, and that Kean schedules some (though not all) of his classes in the
evening, creating potential conflicts. The record demonstrates, however, that
for the entire period 1996-2005, Skoorka taught at Kean only two days per
week. (123-6, Exh. 6, 2038; 123-6, Exh. 7, 1926, 785; Skoorka Dep. I, 67;
Skoorka Stmt.,

¶ 224) Presumably, he was free to teach elsewhere at least

three weeknights (or perhaps two, based on his Sabbath observance, see Part
V, infra). Yet he never at any time taught more than one course at NYU.
More generally, Kean was not required to be infinitely accommodating; it
did not need to put NYU’s interests ahead of its own. To make out a claim,
Skoorka would have to demonstrate that Kean’s scheduling practices were
somehow vindictive, or were directed at him alone. Such proofs are lacking.

28

Skoorka compares his schedule to those of two other faculty members,
Henry Saffer and Jacqueline Jonnard Griffith (Skoorka Stmt.,

¶

194) Dr. Saffer,

Skoorka says, holds an outside position with the National Bureau of Economic
Research. Kean, Skoorka says, allows Dr. Saffer to maintain “only one-half the
regular course load.” (Skoorka Stmt.,

¶

194) Skoorka provides no evidence of

this. But even assuming it is true, it is not a suggestive comparison. A
University might well accommodate a professor’s wish to serve on a prestigious
research body,’° but not merely to supplement his income by moonlighting at
another University. With respect to Griffith, Skoorka presents no relevant
evidence at all. He offers nothing but his own general statement that she
taught adjunct courses at Fairleigh Dickinson University “for years.” Id.
Skoorka, too, taught outside courses for years; he offers nothing about the
specifics of scheduling that might give rise to an inference of inequitable or
disparate treatment.
Skoorka does allege one specific and identifiable incident. (Skoorka
Stmt.,

¶

191) On February 7, 2006, Kean scheduled Dr. Skoorka to teach a

Tuesday evening course during the upcoming Fall 2006 semester. (123-6, Exh.
7, 1911) On February 11, 2006, Skoorka notified the University that a Tuesday
class would interfere with a course he teaches at NYU. Id. The University
responded in writing: “[I]n order to accommodate your desire not to teach on
Tuesday nights, I write to ask if you would prefer to teach on Thursday night or
a double period day time course on Friday. Either alternative will adhere to the
three day teaching rule. Please advise me ASAP as to your decision. If I do not
hear from you by Friday, March 10, 2006, your previously assigned schedule
will stand.” Id. at 1915. There is no evidence that Skoorka ever responded to
this message.
On July 24, 2006, however, Skoorka notified the University that he had
filed a charge of discrimination with the EEOC. (123-6, Exh. 7, 667) On July
25, 2006, the University notified Skoorka that it had cancelled his Tuesday
The curious reader may consult www.nber.org/info.html, but I do not rely on
this extra-record material.
10

29

night course because of low enrollment. IcL at 1921. On July 25, 2006, Skoorka
advised the University that he had moved his Tuesday night class at NYU to
Thursday night in order to accommodate his teaching schedule at Kean. Id. at
660. On August 28, 2006, the University notified Skoorka that it was changing
his schedule to assign him a course on Thursday evenings. Id. at 1925-26.
That rescheduling by Kean would have created a conflict with the NYU course
that Skoorka recently had moved to Thursday. On September 6, 2006,
however, the University again rescheduled the Thursday night course, moving
it to Wednesday night. Id. at 785.
From the temporal proximity, it is possible to infer that Kean was
retaliating, or sending a message, when it rescheduled the Tuesday class to
Thursday. But eight days later Kean relented and again rescheduled the
Thursday class to Wednesday, resolving the conflict. There is an issue of fact as
to whether this was intended as retaliation. But even assuming that it was, it is
too minor to qualify as an adverse employment action under CEPA. After all,
Kean quickly altered Skoorka’s schedule to accommodate his NYU course; the
scheduling conflict did not even exist except for a brief eight-day interregnum.
Office equipment and supplies

ii.

Skoorka says that the Kean defendants have refused to provide Skoorka
with basic office supplies. For instance, he says that he, unlike other
professors, does not have a computer on campus. (Skoorka Dep. I, 107-108;
Compi.

¶

276) He says he has given up complaining about the lack of a

computer. (Skoorka Dep. I, 112)
The record is inconsistent as to whether Skoorka has the use of a Kean
computer. Skoorka has provided a 2007 email from himself to Monica McKie (a
member of the IT Department) in which he acknowledges that there is a
computer in his office. (123-8, Exh. 24, 1952) There is also a 2011 note stating
that a member of the IT Department has removed spyware and viruses from a
computer used by Skoorka; indeed, Skoorka complains of this. (See Part I.A.7,
supra.] Construing the record in the light most favorable to the non-moving
30

party, however, I will assume that, at least for some portion of the time covered
by the complaint, Skoorka has not been provided with a computer.
Skoorka likewise says that he has no access to a printer or a
photocopier, although other faculty members do. (Skoorka Stmt.,

¶

262, 276)

Skoorka says his department has refused to provide him with basic office
supplies like paper, pens, and chalk. (Skoorka Dep. I, 105-07) When he asks
for supplies, the department secretary allegedly replies that they don’t have
any. Skoorka also says that his office is “on the other side of the building” from
the offices of other members of his department. Id. at 38.
For sure, the shortages Skoorka describes may be annoying and
inconvenient. Skoorka may have to rely on common computers in the library,
or cadge office supplies. But such inconveniences do not materially alter the
basic conditions of employment, and they are not “virtually equivalent to
discharge.” Klein, 871 A.2d at 691. They do not rise to the level of an adverse
employment action for purposes of CEPA.
iii.

Class visits/ “stalking”
Skoorka’s complaint alleged that several other faculty members,

including Bill Kempey, David Yamoah, Eufronio Carreno, and Bert Wailo
“stalked” him. (Skoorka Dep. I, 133; Compi., ¶ 81) What Skoorka means, it
turns out, is that certain persons visited his classroom without “announcing in
advance” that they were coming. (Skoorka Dep. I, 133)
The “stalking” terminology aside, class visits could be disruptive or
harassing. Skoorka alleges actual disruption, however, only as to Kempey. He
says that Kempey visited his class “routinely” from 1999 through 2008.
(Skoorka Dep. I, 133) “[S]everal times” during that period, Kempey allegedly
“yelled and screamed” at Skoorka in front of the students. Id. at 134-35.
A similar allegation was also made in the 2001 litigation. Skoorka alleged
that Kempey “ma[de] improper visits to his classes [and] abus[ed] him in the
presence of students.” Skoorka j, *5• Skoorka may be alleging that Kempey
engaged in this “yelling and screaming” again after 2002, although this is
31

unclear. Nor do I consider merely raising one’s voice, or losing one’s temper, to
constitute retaliation under the fairly demanding standards of CEPA. (Title VII
is another matter. See Part IV, infra.) Skoorka never says anything about the
content of this alleged shouting that would permit a fact finder to conclude that
it materially altered the basic conditions of employment, or was “virtually
equivalent to discharge.” Klein, 871 A.2d at 691.
I therefore find that Skoorka has not made out a prima facie case of
retaliation under CEPA. Accordingly, I will enter judgment for all defendants as
to Count Two.

IV.

Title VII Retaliation Claim Against Kean Defendants

Skoorka alleges a Title VII retaliation claim against the Kean defendants.
It is unlawful for an employer to retaliate against employees who report
violations of Title VII. See 42 U.S.C.A.

§ 2000e-3(a) (“It shall be an unlawful

employment practice for an employer to discriminate against any of his
employees.., because he has opposed any practice made an unlawful
employment practice by this subchapter, or because he has made a charge,
testified, assisted, or participated in any manner in an investigation,
proceeding, or hearing under this subchapter.”).
A.

Title VII Retaliation Contrasted With CEPA

Preliminarily, it is important to note three distinctions between
retaliation claims under Title VII and those under CEPA, discussed above.
First, of the Kean defendants, Count One names only the University
itself, its Trustees, and the State of New Jersey. The individual defendants are
not named because they are not “employers” subject to liability under Title VII.
See Dici v. Corn. of Pa., 91 F.3d 542, 552 (3d Cir. 1996); Skoorka Opp. to Kean

Mot., 20 n.3; Compl.

¶ 133. The Trustees and the State have not separately

moved for summary judgment. References to Kean in this section should
therefore be read to include the University, the Trustees, and the State, but not
the individuals.
32

Second, while a CEPA retaliation claim may be based on an employee’s
report of virtually any unlawful practice, a Title VII retaliation claim must be
based on an employee’s report of a violation of Title VII itself. 42 U.S.C.

§ 2000e-3(a). Skoorka’s claim of retaliation under Title VII, then, may be based
only on his complaints of racial and religious discrimination.
Third, Title VII’s definition of retaliatory action is broader than that of
CEPA. A particular act might be actionable under Title VII even if it is does not
rise to the level of retaliation under CEPA. (See Part IV.B, infra.) That is a
distinction with a difference in this case.

B.

Prima Fade Case Under Title VII

To make out a prima facie case of retaliation under Title VII, Skoorka
must establish that 1) he engaged in an activity protected by Title VII; 2) his
employer took an adverse employment action against him; and 3) there was a
causal connection between his participation in the protected activity and the
adverse employment action. Moore v. City of Philadelphia, 461 F.3d 331, 34041 (3d Cir. 2006), as amended (Sept. 13, 2006).
The first prong of the prima facie case can be satisfied, of course, by a
plaintiff’s filing of an EEOC complaint. But it can also be satisfied by a
plaintiff’s complaints to superiors about discriminatory treatment. Moore, 461
F.3d at 343. Here, Skoorka’s 2001 lawsuit, his complaints to the EEOC, and
his internal complaints of discrimination may all qualify as protected activities.
In the context of Title VII, courts have defined retaliatory action broadly.
To qualify as retaliation, an action must merely be one that “a reasonable
employee would have found” to be “materially adverse, which in this context
means it well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Burlington N. & Santa Fe Ry. Co. v.
White, 548 U.S. 53, 68 (2006) (internal quotations omitted). See also Moore,
461 F.3d at 341 (acknowledging that White, superseding prior Third Circuit
precedent, holds that an action is adverse if it might have dissuaded a
reasonable worker from making or supporting a charge of discrimination). Not
33

every disagreeable act, however, qualifies as an adverse, retaliatory
employment action. “[W]e believe it is important to separate significant from
trivial harms. Title VII, we have said, does not set forth a general civility code
for the American workplace.” White, 548 U.S. at 68 (internal quotations
omitted). “Personality conflicts at work that generate antipathy and snubbing
by supervisors and co-workers” are not actionable. Id. And, likewise, “normally
petty slights, minor annoyances, and simple lack of good manners will not
create such deterrence.” Id. Nonetheless, the threshold for showing a
retaliatory action is not high.
Here, Skoorka alleges that his employer took some fifteen adverse actions
against him. I have already held that twelve of those did not have sufficient
factual support to be considered as part of a prima facie case of retaliation or
discrimination. See Part I.A, supra. For similar reasons, I will not consider
those alleged incidents as part of Skoorka’s prima facie case of retaliation
under Title VII. I further held that the three remaining incidents did not rise to
the level of adverse employment actions for purposes of CEPA. See Part III.c,
supra. I must consider, though, whether those three incidents qualify as

adverse employment actions under the lower Title VII standard: i.e., whether
they “might have dissuaded a reasonable worker from making or supporting a
charge of discrimination.” Id. I conclude that those three actions do qualify as
adverse employment actions under Title VII.
As set forth above, Skoorka alleges that in 2006, Kean changed his
schedule to create a conflict with his Thursday class at NYU. See Part III.C.i,
supra. Kempey, the department chair, did so immediately after Skoorka

notified Kean of his NYU schedule, and not long after Skoorka filed an EEOC
complaint. That interference with outside employment, however fleeting, could
have dissuaded a reasonable person from complaining of discrimination. That
is enough to raise a triable issue as to retaliation. To be clear, only Skoorka’s
claim of retaliation with respect to this specific 2006 incident survives
summary judgment. Skoorka’s other claims of scheduling shenanigans do not.

34

Skoorka also alleges that his employer has deprived him of basic office
equipment and supplies. See Part III.C.ii, supra. That, too, alone or in
combination with the other acts, might warn off a reasonable employee who
was considering filing a discrimination complaint. Because Skoorka has
testified that he is the only professor who was denied these basic tools, and
because the Kean defendants have not submitted contrary evidence, a fact
finder could infer that this constituted retaliation.
Finally, Skoorka testified that defendant Kempey has interrupted
Skoorka’s classes and yelled at him in front of students. See III.C.iii, supra.
Skoorka has testified to the volume, but not the content, of Kempey’s
statements, leaving open the possibility that the parties were arguing about
something wholly unrelated. But given the other acts, and the history of
complalnts and litigation, I find that a fact finder could connect the alleged
tirades to retaliation. This conduct could be serious enough to dissuade a
reasonable person from engaging in protected activity. Again, I clarify that only
the Kempey allegations survive summary judgment; Skoorka’s vague “stalking”
allegations concerning other defendants do not.
One additional caveat. A claim of retaliation does not depend on the
ultimate success of the plalntiff’s underlying complaints of discrimination. All
that is required is that a reasonable complainant in plaintiff’s position could
have believed that discrimination in violation of Title VII had taken place. Moore
v. City of Philadelphia, 461 F.3d 331, 344 (3d Cir. 2006), as amended (Sept. 13,
2006). Thus, although I find below that Skoorka’s claims of discrimination do
not survive summary judgment, and although Skoorka’s allegations of racial
discrimination in his 2001 lawsuit were unsuccessful, Skoorka may still prove
a claim of retaliation if he can demonstrate that he had a reasonable belief that
the University had engaged in unlawful discrimination.
Summary judgment is granted to Kean as to the twelve alleged acts of
retaliation enumerated in Part I.A, supra, which lack record support. Thus
Count One survives, but only as to Kean University, the Board of Trustees of

35

Kean University, and the State of New Jersey, and only with respect to the
three specific allegations of retaliation enumerated in this Part: (a) the 2006
interference with Skoorka’s NYU schedule; (b) the deprivation of office
equipment and supplies; and (c) Kempey’s disruptive visits to Skoorka’s
classroom. Further, all claims are barred to the extent they were disposed of by
the earlier state action, which had a cutoff date of 2002.
V.

Claim of religious discrimination
In addition to his retaliation claims, Skoorka claims that the University

discriminated against him because of his Jewish religion or ethnic background.
(Compl., Counts One and Three) Skoorka appears to be alleging that the
University’s conduct amounted to either disparate treatment or harassment.
A prima facie case of disparate treatment or hostile work environment,
whether brought under NJLAD or Title VII, requires two essential showings.
The plaintiff must show an adverse employment action, and must point to
evidence that the action was taken for an unlawful, discriminatory reason.’
1

To make out a claim for hostile work environment or harassment under NJLAD,
the plaintiff must show that the conduct complained of would not have occurred but
for the employee’s membership in a protected class, and that the conduct was severe
or pervasive enough to make a reasonable person believe that the conditions of
employment were altered and the working environment was hostile or abusive.
Maddox v. City of Newark, 50 F. Supp. 3d 606, 627 (D.N.J. 2014) citing Lehmann v.
Toys ‘R’ Us, Inc., 626 A.2d 445, 453-54 (1993)
11

A claim of hostile work environment discrimination under Title VII requires a
very similar showing. The plaintiff must show that 1) he suffered intentional
discrimination; 2) the discrimination was pervasive and regular, 3) the discrimination
detrimentally affected the plaintiff; 4) the discrimination would detrimentally affect a
reasonable person of the same protected class in that position.

To establish a claim of disparate treatment under Title VII, a plaintiff must
show that he 1) is a member of a protected class; (2) was qualffied for the position he
sought retain; (3) s/he suffered an adverse employment action; and (4) the action
occurred under circumstances that could give rise to an inference of intentional
discrimination. Makky v. Chertoff 541 F.3d 205, 214 (3d Cir. 2008)
To establish a prima facie claim of disparate treatment under NJLAD, the
requirements are substantially similar. Abramson v. William Paterson Coil, of New
Jersey, 260 F.3d 265, 282 n. 13 (3d Cir. 2001). Like the analysis under Title VII, “the
initial burden of showing a prima facie case is met when the plaintiff shows that ‘it is

36

Skoorka’s evidence establishes neither of these elements. He reports that
he was once assigned a class that met from 4:30 pm to 7:15 pm on Fridays,
potentially interfering with his observance of the Jewish Sabbath. However,
when Skoorka pointed out that conflict, the University rescheduled the class so
that it would end at 3:15 pm, well before sunset even in mid-winter. (123-8,
Exh. 15, 99-100) The incident gives rise to no inference of religious
discrimination.
Skoorka also reports that his department once scheduled a meeting on a
Jewish holiday. (123-9, Exh. 41) Skoorka does not allege that he requested that
the meeting be moved to another time. He does not state that he even inquired
whether the Department had realized that the date of the meeting was a Jewish
holiday. This stray incident, too, has no particular significance.
Skoorka says that on April 17, 2003, the first day of Passover, computer
technicians upgraded the operating system of his computer to a newer version.
(123-8, Exh. 24, 2585) Skoorka does not state that he was required to
discharge any official responsibility on that holiday, or even that he was
present. The relevance of this incident remains unexplained.
Skoorka complains about unfair class scheduling and the deprivation of
office supplies, but provides no evidence that these were manifestations of
religious bias. He can point to no inherent connection between these acts and
his religion; this is not like, for example, citing an insulting epithet to
demonstrate ethnic bias, or a lewd remark to show sexual harassment. In
short, Skoorka presents nothing at all connecting these incidents to his
religious faith or ethnic origin.
Skoorka claims that the University’s ongoing failure to promote him to
the rank of full professor is rooted in religious discrimination. He offers no
evidence—not so much as a stray bigoted remark—in support of that claim. It
also fails on multiple procedural grounds.

more likely than not’ that the employer’s actions were based on unlawful
considerations.” Mandel v. UBS/PaineWebber, Inc., 860 A.2d 945, 956 (App. Div. 2004)
37

I have already discussed certain aspects of the allegedly discriminatory
failure to promote Skoorka from associate professor to full professor. See Part
I.A.9, supra. To the extent that Skoorka alleges that the University has denied
him a promotion at any time after 2002, those claims are not supported by the
record. See id. To review, Skoorka has not even applied for a promotion since it
was denied him in 2002. To the extent that Skoorka is alleging that the
University’s failure to promote him in 2002 is somehow actionable in this suit,
such a claim is barred by res judicata. A state court jury found that the
University’s denial of promotion at that time was not discriminatory. See p. 4
n.2, supra. Under res judicata principles, that claim cannot be

12

In addition, the 2002 denial of promotion, as well as any allegedly
ongoing denial, would be barred by the statute of limitations. In theory,
Skoorka could have brought a timely Title VII claim for a denial of promotion, if
one had occurred in the (at most) 300 days preceding an EEOC complaint. See

A federal court must give a state court judgment the “same preclusive effect as
would be given that judgment under the law of the State in which the judgment was
rendered.” Migra v. Warren City School Dist. Bd. of Educ., 465 U.S. 75, 81, 104 S.Ct.
892, 896 (1984); See 28 U.S.C. § 1738 (full faith and credit). Therefore, the New Jersey
doctrine of collateral estoppel applies in this case.
12

New Jersey applies the familiar rule of collateral estoppel or issue preclusion,
the” ‘branch of the broader law of res judicata which bars relitigation of any issue
which was actually determined in a prior action, generally between the same parties,
involving a different claim or cause of action.”’ Tarus v. Borough of Pine Hill, 916 A.2d
1036, 1050 (N.J. 2007) (quoting Sacharow v. Sacharow, 826 A.2d 710, 719 (N.J.
2003)). Also familiar is New Jersey’s application of res judicata or claim preclusion,
under which claims arising from the same transaction or occurrence will be barred in
a later action. Watkins v. Resorts Int’l Hotel and Casino, Inc., 591 A.2d 592, 599 (N.J.
1991).
Distinct and peculiar to New Jersey, however, is the “entire controversy”
doctrine, which bars litigation of any claim that could have been joined with those
brought in the earlier action. Martgageling Corp. v. Commonwealth Land Title Ins. Co.,
662 A.2d 536, 539-540 (N.J. 1995); Estate of Gabrellian, 372 N.J.Super. 432, 446
(App. Div. 2004); N.J. Ct. R. 4:30A.
38

42 U.S.C.

3
§ 2000e-5(e)(1).’ But there has been no such application for

promotion, or denial of promotion, since 2002.
Skoorka says that he has expressed a “standing” desire for promotion.
He argues in effect that the University’s failure to promote him every year since
2002 is a continuing violation, giving rise to a fresh and timely cause of action.
The cases, however, reject any such “continuing violation” theory for purposes
of Title VII failure-to-promote claims. AMTRAK v. Morgan, 536 U.S. 101, 115,
122 S.Ct. 2061 (2002) (For Title VII statute of limitations purposes, “[dliscrete
acts such as

...

failure to promote

...

are easy to identify. Each incident of

discrimination and each retaliatory adverse employment decision constitutes a
separate actionable ‘unlawful employment practice.”); Rush v. Scott Specialty
Gases, 113 F.3d 476, 484 (3d Cir. 1997) (reversing district court and holding
that plaintiffs Title VII failure to promote claim and train claims are “discrete
instances of alleged discrimination that are not susceptible to a continuing
violation analysis.”).
I will therefore enter judgment in favor of all defendants on Count Three.
I will likewise enter judgment for all defendants on Count One insofar as that
Count alleges direct religious discrimination in violation of Title VII.
VI.

Union defendants
With respect to all claims, Skoorka alleges that the Union defendants

should have, but did not, press Skoorka’s grievances against Kean. I have
previously stated in dicta that a union can be liable under Title VII if it makes a
deliberate choice not to process an employee’s grievance. See Barrentine v. New
Jersey Transit, 44 F. Supp. 3d 530, 540 n.8 (D.N.J. 2014). Such a claim under
Title VII would ultimately be rooted in the union’s duty of fair representation.

The only EEOC complaint that appears on the face of this record was filed on
July 24, 2006. Any Title VII claim would therefore have to be based on an adverse
action that occurred on or after September 27, 2005.
13

39

See, e.g., Vaca v. Sipes, 386 U.S. 171 (1967). Assuming such a claim is legally
viable, I nevertheless award summary judgment to the Union defendants.
All of the Union-related claims share a fundamental flaw: There is no
evidence that the Union defendants deliberately chose not to pursue a
grievance on Skoorka’s behalf. In fact, all of the relevant evidence is to the
contrary.
It is undisputed that Union representatives contacted Skoorka many

times and encouraged him to meet with a grievance officer to discuss his
allegations. For example, on January 14, 2006, Skoorka sent an email to
defendant Maria del C. Rodriguez, the President of the Kean Federation of
Teachers, complaining about his schedule and other matters. (119-5, Exh. D,
1) Rodriguez responded two days later, directing Skoorka to contact a grievance
officer. Id. Rodriguez again contacted Skoorka and asked him to meet with a
grievance officer on February 22, 2007; on July 10, 2007; on October 19, 2007;
and on November 21, 2007 (119-5, Exhs. E, F, H, I). In March 2007, the
grievance officer himself twice reached out to Skoorka and offered his
assistance. (119-5, Exh. G; Skoorka Dep. II, 211-12)
Skoorka acknowledges that he did not speak with a grievance officer, but
says that the Union was aware of his complaints. (Skoorka Dep. II, 213-16)
That is not an adequate response. It is clear from this record that it was
Skoorka himself, not the Union defendants, who failed to initiate the grievance
process. Because the Union defendants did not make a deliberate choice not to
process a grievance, they are not liable for any allegedly retaliatory actions that
the Kean defendants took against Skoorka. I will therefore enter judgment in
4
favor of the Union defendants as to all counts.’
J briefly note two alternative grounds for judgment in the union’s favor.
First, to the extent I have already entered judgment in Kean’s favor, I would also
enter judgment for the Union defendants. The Union defendants should not be held
liable for failing to press claims that have now been found to lack merit.
14

Second, Judge Martini previously dismissed the American Federation of
Teachers from the predecessor action. (No. 07-cv- 1629, Dkt. 23) Under the law of the
case doctrine, that would constitute alternative grounds for dismissal of the AFT.
40

Conclusion
Defendants’ motions for summary judgment are granted as to all
defendants and all claims, except as to a portion of Count One. Count One
remains, but only as against defendant Kean, its Trustees, and the State of
New Jersey, and only with respect to the three specific allegations of retaliation
discussed in Part IV.B, supra.

Dated: June 2, 2015
Newark, New Jersey

KEVIN MCNUL
United States District Judge

41