JOHNSON v. PSEG et al
Filing
55
OPINION. Signed by Judge Dickinson R. Debevoise on 10/9/12. (jd, )
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
PHILIP JOHNSON, pro se
Plaintiffs,
v.
Public Services Enterprise Group, PSEG
Services Corporation, Public Service
Electric and Gas Company, Essex County
College.
Civ. No. 10-3795 (DRD)
OPINION
Defendants.
PHILIP JOHNSON
Pro se.
ZUCKER, FACHER & ZUCKER, P.A.
Paul J. Soderman, Esq.
One Passaic Avenue
Fairfield, NJ 07004
Suzanne M. Klar, Esq.
80 Park Place, T5D
Newark, NJ 07102
Attorneys for Defendants.
DEBEVOISE, Senior District Judge
This case arises out of the alleged breach of contract, employment discrimination, and
related tort claims raised by Plaintiff Philip Johnson, a student-intern enrolled in a training
program at Essex County College, for the purposes of work placement at Public Service Electric
1
and Gas Company (“PSE&G”). For the reasons set forth below, the motions for summary
judgment are GRANTED.
I. BACKGROUND
Pro se plaintiff Philip Johnson filed the within Complaint on July 27, 2010. 1 The
Complaint asserts claims against Public Service Enterprise Group (“PSEG”), PSEG Services
Corporation, Public Service Electric and Gas Company (“PSE&G”), and Essex County College
for breach of contract, employment discrimination and a litany of torts violations. Issues related
to the proper naming of parties in the caption arose numerous times in the course of proceedings.
Mr. Johnson’s November 8, 2011 motion to amend the caption is still outstanding, as the
parties could not agree on a stipulated caption and no order amending the caption has been
entered by the Magistrate. 2 Finding good cause to correct the Caption, the Court hereby orders
that the caption be amended to include the following properly named defendants: Public
1
The Equal Employment Opportunity Commission granted Mr. Williams a notice of right
to sue on May 3, 2010.
2
Mr. Johnson has three times attempted to amend the caption. Defendants argue that
Public Services Enterprise Group was improperly pleaded based on its acronym (“PSEG”), and
that PSEG Services Corporation was improperly pleaded as “PS&G Services Corporation.”
Additionally, Mr. Johnson seeks to amend the caption to add Public Service Electric and Gas
Company (“PSE&G”) as a named party because the underlying correspondences from which the
alleged contract originates were written by PSE&G.
Mr. Johnson’s first two efforts to amend the caption resulted in an order issued on August
9, 2011 by the Magistrate Judge, directing the parties to electronically file a stipulated order
concerning the corrected caption. (Doc. No. 23.) Subsequently, on November 8, 2011, Mr.
Johnson submitted a motion to amend the caption. (Doc. No. 29.) Thereafter the instant motions
for summary judgment were filed, and no response to the motion to amend the caption was
entered. A status conference with the Magistrate Judge was held on February 21, 2012, however
the ensuing order only related to outstanding discovery issues. The Magistrate Judge later
ordered a status conference for March 21, 2012, at which, “[i]f appropriate, the Court will
address the outstanding issue regarding the case caption . . .” (Doc. 41.) The status conference
was then adjourned without a date. A pretrial Conference is now set for September 27, 2012,
and a Final Pretrial Order is anticipated to be filed on or after October 1, 2012.
2
Services Enterprise Group (“PSEG”), PSEG Services Corporation, Public Service Electric and
Gas Company (“PSE&G”), and Essex County College. This opinion names the parties as such,
as is also reflected in the caption.
Mr. Johnson participated in a training program at Essex County College which PSE&G
participated in, entitled the Energy Utility Technology Degree Program (“EUTD Program”).
Enrolled students were offered the opportunity to apply to PSE&G for a temporary position. To
be considered for this temporary position, the applicant was required to successfully complete
specific course work in a county college participating in the EUT Program. Employees hired
through this program were hired for a limited duration and at an “at will” basis. Additionally, as
a student in the EUTD Program, Mr. Johnson was required to sign an “Energy Utility Degree
Program Student Agreement,” which includes an acknowledgement that in order to participate in
an internship, he must “[s]uccessfully pass the company’s background check with no significant
patterns of criminal activity within the last five years.” (Casey Cert., Ex. B.)
Mr. Johnson submitted an application for employment on January 9, 2009. (Casey Cert.,
Ex. C.) The employment application included an affidavit in which Mr. Johnson attests that he
understands and agrees that his employment is contingent upon a satisfactory background
investigation. (Id.) The signed affidavit provided: “I understand that any misrepresentation or
omission of material information will result in my rejection for employment or dismissal after
employment.” (Id.) The employment application authorized PSE&G to use an outside agency to
investigate his background and to verify the information which Mr. Johnson provided on his
application. (Id.)
3
Mr. Johnson attached to his employment application one page of his Federal Bureau of
Investigation (“FBI”) Record of Arrests and Prosecutions (“RAP Sheet”). 3 (Id.) The one page
submitted, of the twenty-four page document, outlines four incidents: (1) A third-degree
conviction for a charge of petit larceny received on December 6, 1984, which resulted in a
sentence for time served and a probation term of three years; (2) A conviction of disorderly
conduct for a charge of unlawful possession of marijuana received on January 10, 1986, which
resulted in a conditional discharge and fine paid; (3) an arrest or charge for criminal contempt
and criminal trespass on May 13, 2006; and (4) an arrest or charge on August 31, 2006 for
criminal contempt, acting in a manner to hurt a child, and harassment. (Casey Cert., Ex. C.) The
dispositions of the charges from nearly thirty years prior are clearly indicated therein. Of import
here however, is that the dispositions of the latter two offenses, those within five years of the
employment application, are not listed on the RAP Sheet.
In what appears to be a matter of practice and/or policy, the background checks are not
ordered by PSE&G until a conditional offer of temporary employment is accepted by the
applicant, with the offer being conditioned upon a satisfactory background check. (Casey Cert.
at ¶ 5.) Thus, on April 23, 2009, Mr. Johnson received from PSE&G an “offer [of] temporary
employment . . . conditional upon a satisfactory background investigation, documentation to
confirm [ ] eligibility for employment in the United States, successful completion of a physical
examination or drug screen that includes testing for abused drugs, including marijuana, and
passing courses . . . and the internship training course associated with [ ] enrollment in PSEG’s
3
During oral argument on October 1, 2012, Mr. Johnson presented to the Court that he
only has this one page of his RAP Sheet, and therefore could not produce the remaining pages.
4
Energy Utility Technology Degree Program.” (PSE&G Apr. 23, 2009 Letter, Compl., Ex. A)
(emphasis added). The tentative start date of employment was listed as May 11, 2009. (Id.)
However, an issue ultimately arose with regard to the background check conducted by a
third party agency operating with PSE&G, First Advantage. The background report was first
ordered by PSE&G on May 6, 2009. (Casey Cert., Ex. D.) Two days later, Mr. Johnson
received a notification from PSE&G that the agency was unable to verify his complete criminal
history. (PSE&G May 8, 2009 Letter, Compl., Ex. A.) The letter instructed that Mr. Johnson
report any inaccuracy to PSE&G within five days, and that PSE&G would not make a final
employment decision until May 22, 2009. The letter further informed Mr. Johnson of the right to
obtain a free disclosure of his file from the agency if he requested the report within sixty days,
and the right to dispute directly with the agency the accuracy or completeness of any information
provided by it. Last, the letter warned that should PSE&G not hear from Mr. Johnson, a formal
decision concerning his employment would be issued.
According to PSE&G’s representations to the Court, additional paperwork or explanation
was necessary in order to verify Mr. Johnson’s identification. Specifically, PSE&G represented
to the Court in oral argument on October 1, 2012, that because there was no disposition indicated
on Mr. Johnson’s self-reported RAP Sheet for 2006 arrests or charges, Mr. Johnson’s
identification could not be verified. The alleged inability to verify his identification occurred
despite the fact that no criminal history was indicated on the background check actuated by
PSE&G.
Mr. Johnson responded to the May 8, 2009 Letter by going to PSE&G’s Human
Resources Department and speaking with a Ms. Hollman there. (Opp. Br. at 8.) Mr. Johnson
provided PSE&G with all the documentation in his possession related to his criminal
5
background. Ms. Hollman indicated that if one’s previous criminal record is not significant, the
individual would not be disqualified from employment.
Mr. Johnson asserts that he “responded following first advantages instructions [sic] by
providing all the necessary paper work to ms. Hollman [sic] that properly identified me, as they
stated that they could not properly identify who I was, and that is all they needed to complete the
process. A week later I got the second ‘adverse’ letter.” (Opp. Br. at 8.) However, the corporate
defendants assert that PSE&G has no record of Mr. Johnson contacting the company to contest
the decision, thus the rescission of the temporary conditional offer therefore became final on
May 22, 2009. (PSEG et al. MSJ Br. at 3.)
The confidential Pre-Employment/Security Screening report issued by First Advantage
was completed and updated on May 13, 2009. (Casey Cert., Ex. D.) The background summary
lists Mr. Johnson as having a “PASS” status with regards to previous employment and
educational history, his Social Security Number provided, “NationScan Plus”, “County
criminal”, and “Statewide”. (Id.) The only other item, listed as “REVIEW” status, was his
driving history with New Jersey. (Id.) The background check further informs that Mr. Johnson
received two points for failing to obey a traffic device, and that his driver’s license had been
revoked and restored the year prior. Curiously, as previously stated, the criminal arrests and
convictions self-disclosed by Mr. Williams in his employment application did not appear in the
background investigation.
Mr. Johnson argues that the report did not reveal anything unsatisfactory, and that he was
terminated following a visit to the corporate headquarters for his medical and equipment fitting.
Mr. Johnson asserts that PSE&G’s inability to verify his complete criminal history is pretext for
employment discrimination based on his race, color, sex, religion, national origin, disability (“or
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perceived – ‘background’”). Mr. Johnson alleges that the Defendants discriminated against him,
as described:
i entered a training program with PSEG, through Essex County
College, which was paid for through unemployment benefits and
grants. i attended the required classes for 1 year and was to begin
my paid internship. i was not paid for attending classes on PSEG
properties. i went to ‘head quarters’ (50 Park Plaza) for testing a
number of weeks before beginning said internship. Soon thereafter
my “offer” was withdrawn.
[ sic] (Compl. at 3.)
The Complaint further alleges a litany of violations pursuant to Title VII of the Civil
Rights Act of 1964 as amended, “and the like, and n.j. [sic] civil rights and human rights law.”
(Id.) Specifically, Mr. Johnson lists the following violations: unequal terms and conditions of
employment, defamation of character, libel, fraud, discrimination, deceptive business practices,
negligence, prejudice, breach of contract, failure to perform, unrealized wages,
misrepresentation, and misappropriation of state, city, and federal funds. (Id.) Mr. Johnson
requests a trial by jury and actual, compensatory, and punitive damages for twenty-four million
dollars for pain and suffering, emotional pain, psychological pain, unrecovered wages,
defamation, libel, and slander. (Id. at 4.)
PSEG and PSEG Services Corporation filed an Answer on March 25, 2011. Essex
County College filed its Answer on April 15, 2011, along with a cross-claim for contribution and
indemnification. No answer has been filed by PSE&G as it had not been named as a party
defendant. Currently before the Court are two motions for summary judgment filed on
December 9, 2011 – one submitted on behalf of PSEG and PSEG Services Corporation, and a
second filed by Essex County College. Discovery has been closed.
7
In its motion for summary judgment, Essex County College first argues that Mr. Johnson
“failed to present any competent evidence whatsoever to support any contention that Essex
County College had anything whatsoever to do with the PSE&G determination that Johnson had
failed to satisfy its employment requirements or background check.” (ECC MSJ Br. at 2.)
Second, Essex County College argues, with respect to the tort-based claims including
libel, defamation, fraud, negligence, and misrepresentation, that Essex County College is
immune from suit as a matter of law based on its status as a non-profit entity created solely to
provide education pursuant to N.J.S.A. § 2A:53A-7 et. seq. See also Tonelli v. Board of
Education, 185 N.J. 438, 449 (2005); O’Connell v. State, 171 N.J. 484, 491-492 (2002); Graber
v. Richard Stockton College, 313 N.J. Super. 476, 485-486 (App. Div. 1998), cert. den.. 156 N.J.
409 (1998). Regardless of that immunity, Mr. Johnson additionally failed to file timely notice of
claim as to the College and thus his action is doomed pursuant to the New Jersey Torts Claims
Act, N.J.S.A. § 59: 1-1 et. seq. See N.J.S.A. § 59:8-8 (requiring formal notice within ninety days
of the date of the alleged wrong).
In the motion for summary judgment submitted by PSEG and PSEG Services
Corporation, the corporate defendants assert that “the criminal record provided by Plaintiff and
the negative driving history provided by the First Advantage Agency together with the inability
of First Advantage to verify the criminal background of the Plaintiff led to a determination that
Plaintiff did not qualify for the position, based on his unsatisfactory background information.”
(PSEG et al. Reply Br. at 7.) Thus, the corporate defendants assert that Mr. Johnson failed to
meet the requirements which he agreed to, including successful passage of the background check
with no significant patterns of criminal activity within the last five years.
8
Oral arguments by both parties were heard on October 1, 2012, during which counsel for
all PSEG defendants expressly represented PSE&G, which is now properly added to the case as
reflected in the caption.
II. DISCUSSION
A. Standard of Review
Federal Rule of Civil Procedure 56(c) provides that summary judgment may be
granted if, drawing all inferences in favor of the nonmoving party, "the pleadings, the discovery
and disclosure materials on file, and any affidavits show that there is no genuine issue as to any
material fact and that the movant is entitled to judgment as a matter of law." Fed. R. Civ. P.
56(c).
A motion for summary judgment will not be defeated by the mere existence of some
disputed facts, but will be defeated when there is a genuine issue of material fact. Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 247-48 (1986). In determining whether the dispute is genuine,
the court's function is not to weigh the evidence or to determine the truth of the matter, but only
to determine whether there is a sufficient evidentiary basis that would allow a reasonable fact
finder to return a verdict for the non-moving party. Id. at 249. The court is to draw all reasonable
inferences in favor of the nonmoving party. El v. Southeastern Pa. Transp. Auth., 479 F.3d 232,
238 (3d Cir. 2007) ("In considering the evidence, the court should draw all reasonable inferences
against the moving party").
The moving party has the initial burden of identifying evidence that it believes shows an
absence of a genuine issue of material fact. Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d
135, 145-46 (3d Cir. 2004). Once the moving party has shown that there is an absence of
evidence to support the nonmoving party’s claims, “the non-moving party must rebut the motion
9
with facts in the record and cannot rest solely on assertions made in the pleadings, legal
memoranda, or oral argument.” Berckeley Inv. Group. Ltd. V. Colkitt, 455 F.3d 195, 201 (3d
Cir. 2006); accord Celotex Corp. v. Catrett, 477 U.S. 317, 324 (1986). If the nonmoving party
“fails to make a showing sufficient to establish the existence of an element essential to that
party’s case, and on which that party will bear the burden at trial,” summary judgment is
appropriate. Celotex, 477 U.S. at 322. Summary judgment is also appropriate if the non-moving
party provides merely colorable, conclusory, or speculative evidence. Anderson, 477 U.S. at
249. There must be more than a scintilla of evidence supporting the nonmoving party and more
than some metaphysical doubt as to the material facts. Id. at 252; see also Matsushita Elec.
Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986).
Moreover, the nonmoving party must show by competent evidence that factual disputes
regarding material issues of fact exist. “[O]nly evidence which is admissible at trial may be
considered in ruling on a motion for summary judgment.” Countryside Oil Co., Inc. v. Travelers
Ins. Co., 928 F. Supp. 474, 482 (D.N.J. 1995).
Further, the Court must apply a more liberal standard of review to claims presented by a
Plaintiff filing pro se. Haines v. Kerner, 404 U.S. 519, 520 (1972); see also United States ex. rel
Montgomery v. Brierley, 414 F.2d 552 (3d Cir. 1969). The Third Circuit Court of Appeals
advises that a petition made without the benefit of counsel must be read with a measure of
tolerance. Wade v. Yeager, 377 F.2d 841, 846 (3d Cir. 1967).
A satisfactory background check was clearly a condition which Mr. Johnson acceded to
in the student agreement, and was reiterated in the temporary offer of employment. Mr.
Johnson’s conditional offer of temporary employment was therefore rescinded when his
background check was deemed unsatisfactory by PSE&G based on the totality of his record.
10
Because the offer was conditional, there was no contract to breach when PSE&G rescinded the
offer. Moreover, there is no indication that the EUTD Program generally operates in a predatory
fashion; indeed this program has been awarded a variety of prizes and awards for bolstering
access and inclusion into the workforce.
The next issue is whether Mr. Johnson was victim to illegal employment discrimination
pursuant to Title VII. To prevail on a Title VII claim, a plaintiff must demonstrate that a
protected characteristic was the cause of an employment decision. 4 A plaintiff may prove such
intentional discrimination via a preponderance of the evidence using either or both circumstantial
or direct evidence. See e.g., Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003) (citing U.S.
Postal Serv. Bd. Of Governors v. Aikens, 460 U.S. 711, 714 n.3 (1983)).
An employment discrimination claim may be stated under either the pretext theory set
forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), or the mixed-motive theory
set forth in Price Waterhouse v. Hopkins, 490 U.S. 228 (1989), under which a plaintiff may show
that an employment decision was made based on both legitimate and illegitimate reasons.
Because the legitimacy of the background evaluation is in question, the McDonnell Douglas
burden-shifting framework applies here. Under that test, Mr. Johnson must first show that: (1)
4
See 42 U.S.C. 2000e-2(a)(2000) (defining unlawful employment practices). The statute
states:
(a) It shall be an unlawful employment practice for an employer –
(1) to fail or refuse to hire or to discharge any individual, or otherwise to discriminate
against any individual with respect to his compensation, terms, conditions, or
privileges of employment, because of such individual’s race, color, religion, sex,
or national origin[.]
11
he is a member of a protected class; (2) he was qualified for the position he sought to attain or
retain; (3) he suffered an adverse employment action; and (4) that after his rejection, the position
remained open and the employer continued to seek applicants from persons of his qualifications.
See McDonnell Douglas, 411 U.S. at 802.
If a plaintiff establishes a prima facie case, then the burden shifts to the defendant to
articulate a legitimate, non-discriminatory reason for the adverse employment action. See St.
Mary’s Honor Ctr. v. Hicks, 509 U.S. 502, 506-07 (1993). The employer does not have to prove
by preponderance that it took the action for the stated reason. See Tex. Dep’t of Cmty. Aff. v.
Burdine, 450 U.S. 248, 257 (1981). The employer must articulate a “clear and reasonably
specific” explanation for its actions to afford the plaintiff a “full and fair opportunity” to rebut it.
Burdine, 450 U.S. at 255-56, 258. The employer accomplishes this by simply explaining what it
has done or by “produc[ing] admissible evidence” of a legitimate basis for the decision –
evidence that would allow a fact-finder “rationally to conclude that the employment decision”
was not the result of discriminatory bias. Id. at 252, 257.
If the defendant carries its burden, the inference of discrimination drops and the burden
shifts back to the plaintiff to show that the defendant’s proffered reason is merely pretext for
intentional discrimination. See Hicks, 509 U.S. at 507, 508. In this context, pretext means a
false explanation that serves to mask unlawful discrimination. See Burdine, 450 U.S. at 253 54; McDonnell Douglas, 411 U.S. at 805. Thus, to show pretext, the plaintiff must present
evidence from which one can draw an inference of discrimination. See McDonnell Douglas, 411
U.S. at 804-805. An example of evidence which may be relevant to a showing of pretext is
where the employer’s criteria informing the alleged adverse action is not applied alike to
members of all races, or an issue is raised with the general policy and practice with respect to
12
minority employment. Id. On the latter point, statistics as to employment policy and practice
may be helpful to determine whether the alleged adverse action conformed to a general pattern of
discrimination against a protected class. Id. “In short, . . . [the plaintiff] must be given a full and
fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for
his rejection were in fact a coverup for a racially discriminatory decision.” Id.
To prove pretext and rebut an employer’s legitimate non-discriminatory reasons for an
adverse employment action, the employee “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 v.
Perskie, 32 F.3d 759, 764 (3d Cir. 1994). If the fact-finder does not believe that the employer’s
stated reason is true, then the fact-finder may infer that the real reason for the action is
discrimination. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 148 (2000) (“[A]
plaintiff’s prima facie case, combined with sufficient evidence to find that the employer’s
asserted justification is false, may permit the trier of fact to conclude that the employer
unlawfully discriminated.”)
The Third Circuit Court of Appeals describes the standards for proof of pretext as
follows:
This requires the employee to “demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in
the employer’s proffered legitimate reasons for its actions that a
reasonable factfinder could rationally find them unworthy of
credence.” Id. at 765 (internal quotations omitted); see Kautz v.
Met-Pro Corp., 412 F.3d 463, 467 (3d Cir. 2005) (“We have
applied the principles explained in Fuentes to require plaintiffs to
present evidence contradicting the core facts put forward by the
employer as the legitimate reason for its decision”). The evidence
13
the employee provides need not “include evidence of
discrimination [because] . . . in appropriate circumstances, the trier
of fact can reasonably infer from the falsity of the explanation that
the employer is dissembling to cover up a discriminatory purpose.”
Kautz, 412 F.3d at 467 (quoting in part Reeves v. Sanderson
Plumbing Products, Inc., 530 U.S. 133, 147, 120 S. Ct. 2097, 147
L. Ed. 2d 105 (2000)) (internal quotations omitted).
Sala v. Hawk, 2012 U.S. App. LEXIS 8821 (3d Cir. May 1, 2012).
Here, PSE&G claims that Mr. Johnson’s background proved unsatisfactory upon the
totality of a) his criminal history, b) his failure to verify his identity, and c) his driving history.
With respect to his criminal history, the only record in question with regard to his candidacy was
a charge or arrest which occurred within five years. That charge or arrest did not indicate a
guilty conviction, for such a conviction would be listed. This suggests a strong inference of
innocence as to the underlying incident. Moreover, PSE&G’s own background investigation did
not find any criminal history. Indeed, Mr. Johnson self-reported the incident in good faith in his
initial application. Aggravating the situation is that PSE&G waited until Mr. Johnson spent one
year’s worth of course payments, supported by unemployment benefits and grants, and
substantial time and effort to complete the EUTD Program, to reject the arrest or charge which
did not lead to a conviction and was self-reported from the onset.
Second, PSE&G claims that due to the discrepancy in the criminal history self-reported
and the lack of criminal history found in First Advantage’s search, that Mr. Johnson’s
identification was an issue which he failed to resolve pursuant to instructions provided in the
May 8, 2009 letter. However upon receiving this letter, Mr. Johnson attempted to resolve the
discrepancy with a visit to Human Resources and the production of all paperwork in his
possession. PSE&G could have taken better steps to communicate exactly how he could verify
his identification. For example, presumably, had PSE&G instructed Mr. Johnson to produce a
14
disposition confirmation notice from the police department which issued the 2006 arrests or
charges, Mr. Johnson would have done so, and his identification and criminal history would no
longer be at issue. The third factor contributing to PSE&G’s rejection was Mr. Johnson’s
driving history, which is similarly inconclusive. Procurement of two points and a suspension and
restoration of driving privileges in April 2008, with no previous driving infractions, is uncertain
grounds for denying his application altogether.
A reasonable fact-finder could find that PSE&G miscategorized Mr. Johnsons’
background as unsatisfactory, and that Mr. Johnson was therefore otherwise qualified for the job.
However, ultimately the issue is that even if the Court were to find that PSE&G may have
miscategorized Mr. Johnson’s background as unsatisfactory, a reasonable factfinder could not
infer illegal discrimination. “The ultimate question in every employment discrimination case
involving a claim of disparate treatment is whether the plaintiff was the victim of intentional
discrimination.” Reeves, 530 U.S. at 153.
The factual context here is distinguishable from cases which allow for an inference of
discrimination based on factual inconsistencies. For example, in Sala, the Third Circuit Court of
Appeals found “stark and glaring contradictions” between the employee’s positive annual
reviews and the twenty-five reason memorandum submitted by her supervisor in support of his
recommendation to not extend her service agreement. 2012 U.S. App. LEXIS at *9. Thus, the
Third Circuit Court of Appeals found that a jury may conclude that the description of her
“accomplishments and abilities depicted in her evaluations provide evidence of pretext because
they starkly contrast with the reasons proffered in [her supervisor’s] memorandum for why her
extension should not be granted.” Id.
15
While the factors considered by PSE&G that lead to finding Mr. Johnson’s background
as unsatisfactory may be tenuous and based on some bureaucratic deficiency, there is no
indication, even under a more liberal standard of review, that a fact-finder could infer that the
finding itself was a post-hoc fabrication, or that discrimination was more likely than not a
determinative cause for PSE&G’s failure to hire him. See id. See also Doe v. C.A.R.S.
Protection Plus, Inc., 527 F.3d 358, 370 (3d Cir. 2008); McDonnell Douglas, 411 U.S. at 804
(“Petitioner may justifiably refuse to rehire one who was engaged in unlawful, disruptive acts
against it, but only if this criterion is applied alike to members of all races.”).
To the extent that the tort claims are lodged against Essex County College, despite not
having a clear role in employment-related decisions here, the claims against the college are
additionally dismissed for failure to comply with the notice requirements set forth by the New
Jersey Torts Claims Act, N.J.S.A. § 59: 1-1 et. seq.
III. CONCLUSION
For the aforementioned reasons, the motions for summary judgment are hereby
GRANTED. An Order shall be implemented consisted with this Opinion. 5
/s/ Dickinson R. Debevoise
DICKINSON R. DEBEVOISE, U.S.S.D.J.
Dated: October 9, 2012
5
Although Mr. Johnson does not have a legal cause of action against PSE&G, for want of
a contractual relationship or illegal employment discrimination, equity suggests that PSE&G
should elect to refund Mr. Johnson his education costs. Mr. Johnson acted in good faith
throughout the process and resolution was delayed and costs accrued due to PSE&G’s
bureaucratic deficiency in spotting the issue upon Mr. Johnson’s initial application, and
communicating the best method for confirming his lack of criminal history within five years
prior and any related identification issues stemming therefrom.
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