MADDOX v. CITY OF NEWARK et al
OPINION. Signed by Judge Kevin McNulty on 9/26/14. (jd, )
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
Civ. No. 2:10-5025
CITY OF NEWARK, et al.,
KEVIN MCNULTY, U.S.D.J.:
This matter comes before the Court on the motion of Defendant Ivan
Whittenburg (ECF No. 61) and the motion of Defendants City of Newark, Julien
Neals, and Anna Pereira (ECF No. 62) for summary judgment. The Complaint,
filed by the Plaintiff, Amina Maddox, essentially alleges that she was fired from
her position as Assistant Corporate Counsel for the City of Newark on a
discriminatory basis. For the reasons set forth below, Defendants’ motions are
The dueling factual allegations in this employment discrimination case
are complex and intricate, although not all of the contested facts are relevant.
To highlight the central issues, I offer some general discussion at the outset.
Discriminatory termination cases, when they fail, can do so at any one of
several junctures. The employee may not have suffered as a result of occupying
a protected status (such as race or religion), or engaging in protected activity
(such as First Amendment expression). For example, an allegation of a hostile
work environment may fail because the evidence shows only isolated incidents,
however objectionable. Having passed that hurdle, the employee may fail to
demonstrate that an act of discrimination played the necessary causal role in
her firing. Consider, for example, a case in which the person who heard a
protected complaint or voiced discriminatory sentiments did not participate in
the termination decision. The employee would then be relegated to some other,
less direct theory of proximate cause. Finally, and relatedly, the employer may
meet its burden of establishing that the stated, valid reason for termination
was genuine, and not a pretext for discrimination.
Maddox, an assistant corporate counsel for the City of Newark, was fired
in January 2009. Her primary claim here is based on a September 2007
incident in which a supervisor, Whittenburg, made remarks that were offensive
to a Muslim co-worker, Safdar.’ Maddox says she was fired because she spoke
out about the incident. Her evidence shows that Safdar reported the incident to
a supervisor, apparently without any repercussions. Maddox herself merely
answered a supervisor’s questions, and reluctantly at that.
Whittenburg allegedly retaliated against Maddox, however, by assigning
her an unfair share of work. After she complained about her workload, there
was a supervisory review of her files. All employees were admittedly subjected
to such a file review; Maddox’s claim of discrimination is that her review was
moved up to the earliest group. What that review uncovered was neglect of
duty, including the failure to process checks received from the bankruptcy
court. It was for that and other stated reasons that she was dismissed in
Whittenburg played no part in the Corporation Counsel’s decision to fire
Maddox. To connect the September 2007 Safdar incident to her January 2009
dismissal, Maddox resorts to less direct theories of causation, centered around
the 2008 review of her files. She complains of discrimination via overwork, but
submits no evidence of other employees’ workloads from which discrimination
or unfairness could be inferred. She complains of being placed in the first
group of file reviews, but does not state why that was impermissible or
demonstrate that the timing of her review prejudiced her. Causation cannot
here be inferred from temporal proximity; the file review occurred over a year
after the September 2007 Safdar incident, and her dismissal three months
after that. In short, the file review, early or late, does not establish a proximatecause link between the Safdar incident and Maddox’s dismissal.
The City submits persuasive evidence of a neutral reason for Maddox’s
dismissal: substandard job performance, including absenteeism, uncashed
checks in case files for which Maddox was responsible, and failure to make
court filings. In response, Maddox offers argumentation, but no evidence, that
those concerns were pretextual.
Other claims of discrimination or retaliation are discussed in the body of this
The statutes that Maddox cites do not protect employees from actions
that are harsh, unwise, or even mistaken. What is required is a showing that
her dismissal was unlawfully discriminatory or retaliatory. She has not made
such a showing.
Amina Maddox brought this wrongful termination case against her
former employer, the City of Newark (“Newark”) and several supervisory
employees in the Corporation Counsel’s Office where she worked: Julian Neals
(former Corporation Counsel), Anna Pereira (former First Assistant Corporation
Counsel), and Ivan Whittenburg (Real Estate Section Chief).
Maddox worked as an Assistant Corporation Counsel for the City of
Newark from 2007 to 2009. DSMF ¶J 2, 94. She is African-American and a
practicing Christian. Id. ¶j 7-8. Maddox was admitted to the Bar of the State
of New Jersey in January of 1998. DSMF ¶ 1 (citing Ex. A, P1. CV). She clerked
for Hon. Rosemary Gambardella, the former Chief Judge of the United States
Bankruptcy Court for the District of New Jersey. Id. ¶ 4. From April 1999 to
May 2007, Maddox worked on bankruptcy matters as a Deputy Attorney
General for the State of New Jersey. Id. ¶ 3.
Neals was the City’s Corporation Counsel from February 1, 2008, to
November 15, 2010. Id. ¶ 11. Pereira, Neals’s successor as Corporation
Counsel, served as First Assistant Corporation Counsel from September 22,
2008, to November 15, 2008. Id. ¶ 12. Whittenburg was hired as an Assistant
Corporation Counsel on March 12, 2007. Id. ¶ 18. He became the Assistant
Section Chief of the Real Estate Section on July 2, 2007, and the Section Chief
The City Defendants’ Joint Statement of Material Facts is cited as “DSMF” and
Plaintiff Maddox’s Responsive Statement of Material Facts as “RSMF”.
Lettered exhibits cited in connection with the DSMF are attached to the
certifications of Mr. D’Anton, submitted on behalf of the City Defendants. (ECF Nos.
62, 70). Numbered exhibits cited in connection with the RSMF are attached to the
certification of Mr. Roberts, submitted on behalf of Plaintiff Maddox. (ECF Nos. 64,
65). There are also numbered exhibits attached to the certifications of Mr.
Carmagnola, submitted on behalf of Defendant Whittenburg. (ECF Nos. 61, 72).
In her responding papers, Maddox asserted for the first time that she was also
raised in the Muslim faith and now subscribes to “facets of both religions.” RSMF ¶ 8.
She does not cite any evidence suggesting that anyone at her workplace was aware of
on September 1, 2007. He held that position until the Real Estate Section was
eliminated in 2010. At the time of the filing of this motion, he served as
Assistant Corporation Counsel in the Litigation Section. Id. ¶J 18-20. All of the
individual Defendants had supervisory authority over Maddox in the Law
B. Facts of the Case
Newark hired Maddox as an Assistant Corporation Counsel on June 4,
2007. Id. ¶J 2, 6. (citing Ex. B, P1. Performance Eval; Ex. D, P1. Offer of
Employment). Defendants posit that Maddox was hired because of her
experience in bankruptcy law. Id. ¶ 24. Maddox was expected to take over
Newark’s bankruptcy cases from Ayesha Freeman, the Section Chief of the Real
Estate Section, who was about to retire. Id. ¶J 17, 25 (citing Ex. G, P1. Tasks
Maddox asserts that she was employed pursuant to a collective
bargaining agreement between AFL-CIO Local 103 and Newark, and could only
be terminated for good cause. RSMF ¶ 5. Defendants assert that Maddox was
hired as an at-will employee and did not have tenure. DSMF ¶ 5 (citing Ex. C,
Newark Ordinances Ch. 6). Section 2:6-5.1 of the Newark Ordinances states
that assistant corporation counsel and other Law Department staff serve “at
the pleasure of the Corporation Counsel.” Ex. C.
1. Work Load and Performance
Maddox and the Defendants disagree as to various issues regarding her
work load and performance. Maddox asserts that Defendant Whittenburg
unfairly distributed work assignments to her. RSMF ¶ 67. Defendants assert
that Maddox was assigned cases based on her areas of expertise: bankruptcy
and real estate. DSMF ¶ 67 (citing Ex. N, Foster Memos to File; Ex. 0,
Whittenburg Dep.); DSMF ¶ 29 (citing Chandy Cert.). Maddox says that she
was “never told” that she was the bankruptcy attorney for Newark until
November 2008. RSMF ¶ 35. There is no dispute, however, that she was
assigned to a large real estate foreclosure project and then was responsible for
a number of bankruptcy files.
Maddox clerked for the chief judge of the bankruptcy court in this district. She
asserts, however, that she was not hired for bankruptcy work, but to fill an opening in
the real estate section. RSMF ¶ 25. Although the parties make much of this issue, I
have seen nothing to suggest that lawyers in the corporation counsel’s office could not
permissibly be assigned to whatever matters required attention.
Maddox had the “ultimate responsibility” for handling cases assigned to
her. DSMF ¶ 28; RSMF ¶ 28. That included drafting answers, interrogatories,
correspondence and pleadings; reviewing correspondence; and representing
Newark’s interests by resolving the cases she was assigned. DSMF ¶ 28.
Maddox was initially assigned as the lead attorney in charge of the in
rem foreclosure project. Id. ¶ 26. Maddox received assistance from other
attorneys and paralegals in the Real Estate Section, and from Newark tax
collector Michelle Jones. Id. ¶J 32, 33, 34; RSMF ¶ 34. In the course of
completing that project, she reviewed title binders and sent out notices. DSMF
Maddox asserts that she had the heaviest case load in the Law
Department and that the bankruptcy matters assigned to her were “much more
than a heavy lift.” Id. ¶J 37, 40 (citing Ex. 8 at 19). Defendants disagree. They
point out that Newark was invariably a creditor; the cases involved filing a
simple proof of claim and waiting until the matter was resolved by the issuance
of a check. Id. ¶ 38. The cases rarely involved an in-court appearance. Id. ¶ 39;
see also Ex. GG, Johnson Dep. at 40-4 1. Maddox’s paralegal, Jones, testified
that Maddox had a huge stack of files. Jones also stated, however, that she, the
paralegal, did the “bulk” of the bankruptcy work. Defendants attest that other
employees in the Law Department, including Mazzula and David Torres, had
workloads equal to or heavier than Maddox’s. DSMF ¶J 4 1-42. Maddox does
not document the workload of other employees who allegedly had less work
than she did.
Defendants assert that Maddox generally “did not do a lot of work.”
DSMF ¶ 58. She was frequently “in the hall,” on her cell phone, or chatting
with other people. Id. ¶J 55-57. Maddox denies these assertions. RSMF ¶J 5557 (without citation). Over 10,000 pages of personal e-mails, some
inappropriate for the workplace, were recovered from Maddox’s city-owned
computer. DSMF ¶J 86-90 (citing Ex. V, Maddox 8 and 9; Ex. H, Maddox Dep.
at 256-57, Ex. W). When confronted about neglecting her duties, Maddox
stated that it was “not her fault.” Id. ¶ 59. Whittenburg, she claimed, prevented
her from completing her work because he would “sit on files, sit on complaints
before distributing to the attorneys in his section and forc[e] people to do things
at the last second.” RSMF ¶ 59 (citing Ex. 9, Nance Dep. at 69).
Maddox stated that she did not possess sufficient information to admit or deny
whether Newark obtained the emails. RSMF ¶J 86-87. She admits to their content, as
discussed further below. Id. ¶J 88-89.
Defendants assert that Maddox challenged authority. Id.
denies that. RSMF ¶J 60-62.
Marquis D. Jones, the First Assistant Corporation Counsel from June
2006 to December 2007,6 stated that he had issues with Maddox’s work ethic.
DSMF ¶J 15, 61. Jones discussed terminating her with Chandy and Torok,
who were “protective” of Maddox. Id. ¶ 62.
Aney Chandy was Corporation Counsel from July 1 2006 to February 1,
2008. Id. ¶ 14. Maddox says that Chandy told her that she would likely be
promoted to Assistant Section Chief. RSMF ¶ 63 (citing Ex. 3, Maddox Dep.).
Defendants respond that Chandy never promised Maddox a promotion to
Assistant Section Chief. DSMF ¶j 30, 31. In their version, Maddox began
asking for a promotion soon after she was hired. Id. ¶j Id. ¶ 63, 64 (citing
Chandy Cert.). Chandy told her: “You just got here. Do your job. The
discussion is premature.” Id. ¶ 65 (citing Chandy Cert.).
3. Late Arrivals and Absences
Maddox states that she worked late each day, but her payroll records do
not support that statement. DSMF ¶ 83 (citing Ex. I, Time Sheets). Maddox
claims that she always worked more than the required 37.5 hours a week, but
that assertion is likewise unsupported by her payroll records. Id. ¶ 84.
Defendants assert that Maddox arrived late for work daily. Id. ¶ 54. They add
that Maddox used sick leave frequently, and had a history of excessive sick
leave use dating back to her time at the Attorney General’s Office. Id. ¶J 43
(citing Ex. I), 45 (citing Ex. K, P1. Sick Leave Records). Maddox exceeded her
allotted sick and vacation days for 2007 and 2008. Id. ¶ 46 (citing Ex. L, P1.
Requests for Sick Leave). Maddox’s sick days, say Defendants, frequently
occurred on the dates of scheduled court appearances. Id. ¶ 47 (citing Ex. M,
Internal Emails and Memoranda). Even when asked, Maddox allegedly would
not notify the Court or her adversary that she would not be attending. Id. ¶ 53.
In explanation, Maddox asserts that she has a chronic medical condition.
RSMF ¶J 43, 54. She never provided adequate proof of such a condition when
it was requested during the course of her employment, in discovery, at her
deposition, and through written requests to her counsel. DSMF ¶ 44. Maddox
Jones is currently a New Jersey Superior Court Judge.
Maddox disputes this assertion but does not cite to the record. RSMF
asserts that she provided Newark with copies of medical notes. RSMF ¶ 44
(citing Ex. 15, Medical Records). Those medical records, however, do not
document any serious or chronic condition. They contain prescriptions, records
of ordinary doctor and dental appointments, and emails from Maddox to the
office indicating that she was recovering from a cold. Ex. 15.
Maddox told Angela Foster, the Chief of Staff for the City’s Law
Department, that she suffered from bronchitis. Ex. J, Foster Memo to File and
Emails. Maddox requested a 10:00 am start time as an accommodation to her
“chronic” medical condition. RSMF ¶ 48. Newark agreed to the accommodation
on the condition that Maddox document her ailment with a physician’s note.
Maddox replied that she would not provide the note because of HIPAA
regulations. Id. DSMF ¶ 48 (citing Ex. J); ¶ 49 (citing Ex. H, Maddox Dep.).
Maddox says she requested the necessary form to apply for a reasonable
accommodation but that Angela Foster failed to furnish it. DSMF ¶J 16, 50;
RSMF ¶J 48, 50-51. She admitted at her deposition that she was not sure if
the City even had such a form, but that she assumed it did. Id. ¶ 50. (citing Ex.
H at 835:1-20). She also stated at her deposition that she had no evidence that
Whittenburg had any input into whether she received flexible hours because
she did not broach the subject with him. Id. ¶ 52 (citing Ex. H at 498-99).
Maddox claims that other employees came in late but were not
disciplined. RSMF ¶ 48. For instance, Neals did not discipline another attorney
who arrived late because of traffic issues. RSMF ¶ 54. She points to Neals’s
testimony that he allowed for some flexibility as long as the attorneys worked
for 37.5 hours per week. Id. (citing Ex. 1, Neals Dep. at 104-05). Neals’s
statement, in context, was that there was flexibility “on the day-to-day basis”
but that “there was an expectation that generally you would be in by 9:00 or
some reasonable time because city business was starting, and we’re a law office
for all intents and purposes.” Ex. 1 at 104.
4. Review of Maddox’s Cases
Maddox asserts that she received an “unfair” case load because
Whittenburg was trying to “bury” her. RSMF ¶ 67. Maddox’s complaints that
she was “inundated” with work prompted (or at least were followed by) a review
of her files by Pereira and Danielle Torok. Id. ¶J 66, 68, 69 (citing Ex. E,
Complaint; Ex. N, Foster Memos to File); RSMF ¶ 66 (admitting in part, but
stating that Defendants had already decided to review all of the attorneys’ files).
The file review commenced at the end of October 2008. Id. ¶ 69. Maddox
states that she worked with Pereira and Torok on the file review. That is not
reflected in her time sheets. Id. ¶ 71 (citing Ex. R, Pereira Dep. at 30-32); RSMF
The other attorneys in the Newark law department went through the
same file review process. Id. ¶ 77 (citing Ex. R at 16-17). Maddox admits that
all attorneys’ files, not just hers, were reviewed. Her complaint is that she was
not initially scheduled to be in the first group of reviews, but that her review
was moved to an earlier date in “retaliation.” She also asserts that Defendants
told her and paralegal Kelly Johnson that the purpose of the review was to
clear out old files. Id. ¶ 68.
Defendants assert that it was during this review that they became aware
of the “depth and breadth of Maddox’s nonfeasance.” DSMF ¶ 70. The review
revealed that the files contained uncashed bankruptcy trust checks that had
not been submitted to the appropriate City department for processing. Id. ¶ 73.
(citing Ex. R at 27-29, 33). Maddox responds that she kept a list of all the
checks that came in and that she instructed paralegal Johnson where to
forward the check. RSMF ¶ 70 (citing Ex. 8, Johnson Dep. at 39-40). She also
asserts that the reviewed files included ones that she inherited from
predecessors, and that some of the checks dated from 2005 and 2006. Id. ¶ 73
(citing Ex. 1 at 110, 111-18). Pereira testified that she did not fault Maddox for
the oldest checks’ having become stale in the first place, but only for failing to
take action on them. Ex. R at 29.
The review revealed that Maddox had failed to file proofs of claim in her
bankruptcy cases, and that she had not filed responsive pleadings in
numerous foreclosure actions. DSMF ¶J 74, 75 (citing Ex. R, Pereira Dep. at
27-33). Maddox says she denies these assertions, but cites no evidence. RSMF
¶J 74, 75 (without citation). Maddox acknowledged at her deposition that
failure to file a required answer would constitute malpractice and grounds for
termination. Id. ¶ 76 (citing Ex. H, Maddox Dep. at 778-79).
Pereira, Corporation Counsel now and at the time the Complaint was filed,
served as First Assistant from September 22, 2008 to November 15, 2010. Id. ¶ 12.
Torok was First Assistant from July 3, 2006 until February 17, 2012. Id. ¶ 13.
There is some ambiguity about whether the alleged “retaliation” was for her
complaints about her workload, for speaking about the Safdar incident, or both. See
RSMF ¶J 66, 77. Defendants state that the review was held in response to, not in
retaliation for, Maddox’s complaints about her workload; at any rate, complaints about
workload do not in themselves implicate the protections of the antidiscrimination laws.
From their review of Maddox’s files, Pereira and Torok concluded that
she had a high volume of cases, but that these files primarily required clerical,
rather than substantive, attention. DSMF ¶ 79 (citing Ex. R at 13). Pereira and
Torok closed some of the cases, leaving Maddox with a smaller case load. Id. ¶
80 (citing Ex. R at 30-34). Whittenburg also reassigned a number of matters.
Id. ¶ 81 (citing Ex. S, Law Dept. Records). Again, Maddox generally denies this,
but the reassignments are documented. Id.
During the review, Maddox was on a vacation in Brazil, and called in sick
the day she was scheduled to return. (Defendants say it was a 12 day vacation;
Maddox says it was for “fewer days.” RSMF ¶ 78. After the file review,
Defendants assert, Maddox continued to fail to transmit trustee checks to the
applicable Newark department. DSMF ¶ 82 (citing Ex. T, Uncashed Checks).
The uncashed checks submitted by Defendants are dated November and
December 2008. Id. Maddox again generally denies or excuses this neglect, but
cites no relevant evidence. RSMF ¶ 82 (reiterating that she had a larger case
load than the other attorneys and that it was the job of Johnson, the paralegal,
to keep track of the checks).
5. Personal Use of Work Computer
Defendants assert that Maddox used her city-owned computer for
personal emails, many of which were not appropriate. Defendants produced
over 10,000 pages of personal emails collected from Maddox’s work computer;
the emails included photographs of gang members, sexually provocative
photographs, and the use of racial epithets. Id. ¶J 87, 89. Maddox does not
dispute the content of the emails but asserts that the inappropriate comments
were made by others. RSMF ¶ 89. Maddox also sent numerous emails to her
friends and coworkers regarding personal matters like vacations, her
involvement with the 2008 presidential campaign, her romantic life, dinner and
movie plans, after-work events, news articles, and religious email chains.
DSMF ¶ 90; see also RSMF ¶ 90 (stating that Maddox did not have “sufficient
information” to admit or deny the assertion).
At her deposition, Maddox testified that the multitude of personal emails
did not change the fact that she was overworked, stating “Obama responds to
personal e-mails during his work time, but he is still overworked.’ Ex. H at
256-57. Maddox also testified that it was permissible for her to use racially
insensitive remarks about African-Americans in her emails because certain
terms were often used ‘internally” to “describe a certain type of black person.”
Id. ¶ 91 (citing Ex. H at 246-47).
It does not appear that the emails, which the City had not read at the
time, were cited contemporaneously as grounds for dismissal.
6. Maddox’s Termination
Newark terminated Maddox on January 23, 2009. Id. ¶ 94 (citing Ex. X,
Resp. to P1. Grievance). Julian Neals, as Corporation Counsel, made the
decision. Id. ¶ 95 (citing Ex. Y, Neals Dep. at 128). At Neals’s direction, Angela
Foster, the Chief of Staff of the law department, notified Maddox that she had
been terminated. Id. ¶ 96 (citing Ex. R at 44).
Whittenburg was not involved in the decision, and did not have the
authority to terminate Maddox. DSMF ¶f 97, 98 (citing Ex. C; Ex. R at 67).
Whittenburg did not learn of Maddox’s firing until after it had occurred. Id. ¶
99 (citing Ex. 0 at 14 1-42). Maddox admits that Whittenburg did not terminate
her, but contends that Whittenburg’s discriminatory, retaliatory conduct
sabotaged her employment. RSMF ¶ 97.
Defendants assert that Maddox’s termination resulted from a number of
factors, including her failure to meet her duties, obligations and ethical
responsibilities; her failure to properly manage her bankruptcy and foreclosure
files; and her time and attendance records. Id. ¶ 100 (citing Ex. X). The
bankruptcy and foreclosure files, Defendants say, were not properly
maintained and needed to be brought up to date; responsive pleadings were
not filed in foreclosure cases; bankruptcy files that should have been closed
remained open; file correspondence accumulated for 60-90 days with no action
taken; and proofs of claim were not filed when the amount of money due the
City would have justified it. Even after supervisors raised with Maddox the
issue of unprocessed checks, the checks continued to accumulate and were not
handled on a timely basis. Id. ¶ 101 (citing Ex. X). Defendants also assert that
five boxes of files, some of which contained outdated trustee checks, had to be
sent to the Tax Collector’s office to determine the appropriate disposition. Id.
Numerous outdated trustee checks for the payment of taxes or sewer charges
had to be returned to the Bankruptcy Trustee. Id. Defendants claim that the
issues with the bankruptcy and foreclosure files exposed Newark and debtors
to potential liability. Id. ¶ 102 (citing Ex. R at 38-4 1).
The Newark Defendants submit a certification from Marie-Ann
Greenberg, the Chapter 13 Standing Trustee for the United States Bankruptcy
Court, that supports their proffered explanation for Maddox’s termination.’ In
September 2008, Greenberg advised the law department that there were
several checks drawn to the order of Newark that were either outstanding or
that had been cancelled. DSMF ¶ 117 (citing Greenberg Cert. (ECF No. 62-9) ¶
3). Greenberg stated that if she did not receive a response, the funds would be
sent to the Bankruptcy Court’s Registry and the funds would only be released
to the City after an application and responsive Order. Id. ¶ 118 (citing
Greenberg Cert. ¶ 4). Greenberg opined that the attorney assigned to the
bankruptcy cases at that time “did a terrible and careless job” of handling the
cases. Id. ¶ 120 (citing Greenberg Cert. ¶ 5). Homeowners were being penalized
because the checks had not been cashed. Id. ¶ 122 (citing Greenberg Cert. ¶ 7).
Greenberg met with Corporation Counsel to resolve the issues; she believed
that the assistant Corporation Counsel that took over for Maddox did an
“outstanding job” rectifying the check problem. Id. ¶ 124 (citing Greenberg
Cert. ¶J 8-9).
Maddox disputes the given reasons for her dismissal. She posits that
Whittenburg sabotaged her employment by assigning too many files to her.
RSMF ¶ 97. She asserts that she received a favorable evaluation (by
Whittenburg) in September 2007 that stated she was a “great resource” and
had done an “excellent job” administering the foreclosure project. RSMF ¶ 120
(citing Ex. 13, P1. Eval.). She also asserts that she was protected by the
collective bargaining agreement and could only be terminated for good cause
(discussed in more detail infra). Id. ¶J 104, 108. She asserts that Newark
replaced her with two white, male attorneys who did not have any bankruptcy
experience. RSMF ¶ 67.
7. Collective Bargaining Agreement & Newark Personnel Policy
The Collective Bargaining Agreement (“CBA”) between Newark and the
union representing assistant corporation counsel establishes management
rights to hire, assign, promote, suspend, demote, discharge, and take
disciplinary action and notes that “no disciplinary grievances are subject to
arbitration.” DSMF ¶J 103, 114 (citing Ex. Z). Defendants assert that Maddox
was afforded all of her rights under the CBA. Id.j 104. Maddox was an
unclassified employee, not subject to the Merit System Rules and regulations.
Id. ¶ 109 (citing Ex. CC, Exceptions from Merit System Rules). Unclassified
Maddox denies the veracity of the statements made in the Certification. RSMF
¶J 117-120. The issue, however, is whether the City was entitled to, and did, take
action based on it (as opposed to using it as a pretext for discrimination).
Newark employees are not considered permanent employees. Id.
In addition to her rights under the CBA, Maddox testified that the
Newark Department of Personnel Manual afforded Newark employees,
including her, with the right to progressive discipline. Id. ¶ 112 (citing Ex. H at
808-09); RSMF ¶ 104. Those steps included (1) a corrective conference, and (2)
a written reprimand. RSMF ¶ 104 (citing Ex. 4, Newark Personnel Operating
Policies and Procedures, at 3). The personnel manual states that progressive
discipline applies to “employees with permanent status.” Ex. 4. Defendants
assert that Maddox was not entitled to progressive discipline because
employees are not afforded the right to progressive discipline under the CBA
and Maddox was not a “permanent employee” protected by the personnel
policy. DSMF ¶J 108, 109 (citing Ex. Z, CBA; Ex. CC). Therefore, any policy
that may have provided for progressive discipline for other employees did not
apply to Maddox. DSMF ¶ 111 (citing Ex. DD, Newark Personnel Operating
Policies and Procedures).
8. Allegations related to Discrimination
a. Worker’s Compensation
Maddox asserts that Defendants retaliated against her for filing a
worker’s compensation claim after an accident at work. Maddox filed a workers’
compensation claim petition on March 9, 2012, months after her firing,
although she claims to have given notice beforehand. Id. ¶ 105 (citing Ex. AA).
On February 5, 2013, Maddox settled her case for $9,000.00 pursuant to
N.J.S.A. 34:15-20. Id. ¶ 106 (citing Ex. BB).
b. Allegations Against Defendant Whittenburg
Most of Maddox’s allegations of discriminatory conduct concern
Defendant Whittenburg. Maddox testified at her deposition that when she first
started in the Law Department, they socialized and she “had no problem” with
him. Ex. H at 648-49. Their relationship soured, she says, after Whittenburg
made discriminatory comments to another lawyer in her department, Saleem
Safdar. Maddox claims that she was retaliated against for reporting the
comments to management.
Both Safdar and Whittenburg were supervised by First Assistant Marquis
Jones. DSMF ¶ 125. Maddox asserts that Whittenburg demonstrated “dislike”
towards Safdar because of his Muslim heritage. RSMF ¶ 18. Maddox (who did
not witness the conversation, Ex. H at 79-80) claims that Whittenburg referred
to visiting Jerusalem and stated that, if approached aggressively, he would
“blow the head off a Pakistani kid.” She “may” have witnessed a conversation in
which Whittenburg insensitively questioned Safdar about his religion. Id. (citing
Ex. 6, Mazzula Dep. at 81-82;” Ex. 3, Maddox Dep. at 147-49). Referring to
Ramadan, a holiday that requires the faithful to fast, Whittenburg allegedly
asked Safdar “What is it you guys do? Why don’t you eat?” Id. ¶ 127 (citing Ex.
3 at 23-25). Maddox also alleges that Whittenburg yelled and used profanity in
connection with taunting Safdar about leather patches on his jeans. Id. ¶J
132-33 (citing Ex. 3 at 142-48, 149-55). Maddox conceded that she had not
witnessed some portion of these alleged incidents between Whittenburg and
Safdar. Id. ¶ 144 (citing Ex. H at 79-80).
Defendants present a less offensive version of these incidents. In
September 2007, Whittenburg expressed curiosity and asked Safdar if he could
attend mosque with him. DSMF ¶J 126-27. Safdar initially agreed, but then
changed his mind. Id. ¶ 129 (citing Ex. 0 at 64-65). Safdar complained to
Corporation Counsel that the conversations made him feel uncomfortable. The
matter was investigated by Jones and Foster. Id. ¶J 130-3 1.
Maddox was interviewed as a witness during Jones’s investigation of the
Safdar incident. Id. ¶J 135, 138; RSMF ¶ 135. Maddox appears at times to
claim that she was the one who reported the incident to Jones, arousing
Whiteenburg’s ire. In her deposition, however, she stated that Safdar reported
the incident. Only thereafter did Jones call Maddox into his office and ask her
questions about the incident, which she reluctantly answered. (Ex. 3, Maddox
Dep. at 146-48; see also D’Anton Ex. H, Maddox Dep. at 8283).12 After the
incident, Jones made “frequent inquiries” of Safdar to ensure that further
problems did not occur.’ Id. ¶ 137; RSMF ¶ 137.
Mazzula testified that Whittenburg and Safdar did not get along because Safdar
thought Whittenburg discriminated against him because of his background.
There was a complaint. Were you the one who went to Aney or Marquis or
whoever it was and initiate it?
No. Saleem initiated his own issue.
No, no. And then you were just called in as a witness?
(D’Anton Ex. H, Maddox Dep. at 82-83)
Defendants also state that Safdar “reported more” to Jones than he did to
Whittenburg, and that most of his instructions came from Jones. Id. ¶J 139, 140.
Maddox asserts that Whittenburg retaliated against her for speaking to
Jones about the Safdar incident. Defendants note that Whittenburg gave her
an “excellent” evaluation after it occurred, but Maddox disputes the timing. Id.
¶ 141; RSMF ¶ 141 (citing her deposition, Ex. 3). (Both the incident and the
evaluation occurred in September 2007.) At her deposition, Maddox admitted
that Chandy, at least, did not take any adverse action against her. id. ¶ 142
(citing D’Anton Ex. H at 83-84).
Sometime after the Safdar incident, Maddox referred to Whittenburg as a
“white bastard.” DSMF ¶ 92; Ex. H at 649-50. Maddox testified that this was
not a “racial statement” because she did not “say it in a racial way.” Ex. H at
Maddox asserts that Whittenburg acted in a discriminatory manner
against other employees. She says that Whittenburg caused Assistant
Corporation Counsel Andrea Mazzula to feel like a “sex object.” RSMF ¶ 18
(citing Ex. 7, 11/5/2010 Mazzula Letter to New Jersey Department of Labor).
Mazzula’s letter stated that Whittenburg looked at her in a way that made her
uncomfortable and that he “appeared” around the office where she was. Ex. 7.
Maddox also asserts that an African-American female paralegal had believed
Whittenburg was racist because he was sociable and had a “nice demeanor”
with white people, but was standoffish with people of color. Id. (citing Ex. 8,
Johnson Dep. at 27-28, 71-73). Finally, Maddox asserts that she was warned
by Ayesha Freeman that Whittenburg did not respect people of color. Id. ¶J 19,
128 (citing Ex. 10, Maddox and Freeman Emails). Freeman’s emails indicate
that she remembers possibly warning Maddox about working with
Whittenburg, but that she could not swear to any particular communications.
As to her own experience, she stated that she did not “observe any instances of
negative interaction with any women including women of color.” Ex. 10. And
Freeman has now submitted a certification essentially absolving Whittenburg.
(ECF No. 62-8).
Maddox asserts that Whittenburg was disciplined at his former law firm
for inappropriate comments or behavior to female employees. RSMF ¶ 145
(citing Ex. 5, Porzio Bromberg Records). Those records indicate that
Whittenburg was admonished about his conduct at his prior firm’s holiday
On November 24, 2010, Hon. Patty Shwartz (now a Judge of the U.S. Court of
Appeals for the Third Circuit, but then the Magistrate Judge assigned to the case),
ordered that the Porzio Bromberg records be produced “only for the purposes of this
Marquis Jones asserted that no complaints were lodged against
Whittenburg by Law Department employees that involved allegations of
discrimination. Any complaints against Whittenburg involved his supervisory
style. Id. ¶ 153 (citing Jones Cert.).
Maddox, without any supporting evidence or testimony, asserts that
Whittenburg or other Newark employees pilfered her F drive or mailing-return
receipts. Defendants deny that there exists any evidence of such an incident.
DSMF ¶ 36; RSMF ¶ 36.
c. Allegations Against the other Defendants
Maddox’s allegations of discrimination against the other Defendants all
relate back to Whittenburg. Maddox, at her deposition, faulted them all
because they acquiesced in “discriminatory actions by a white individual,”
meaning Whittenburg. DSMF ¶ 160 (citing Ex. H at 121-22). Defendants assert
that Maddox has no evidence that the Defendants racially discriminated
against her. Id. ¶ 162.
At her deposition, Maddox seemed to concede that she simply assumed
at the time that there was racial bias against her:
I believe based on everything that happened, that they would get
me. So I don’t know if it’s unfounded, but based on what had
happened, and maybe I’m using the term in a colloquial sense, and
not necessarily a clinical sense, but based on what happened I
believed that they would get me, and maybe I wasn’t thinking
rationally, highly unlikely, I know I probably was being a little
irrational, but I was freaking out. I was nervous.
Id. ¶ 163 (citing Ex. H at 627). Maddox admits making that statement at her
deposition, but asserts that she nevertheless presented sufficient evidence of
retaliatory, if not racial, discrimination. RSMF ¶ 164.
C. Procedural History
On August 10, 2010, Maddox filed a complaint in New Jersey state court
alleging against Newark and the individual defendants various constitutional,
statutory and common law causes of action. RSMF ¶ 158. Essentially, Maddox
alleged that she was unlawfully terminated and that the Defendants engaged in
litigation” and “for counsel and expert’s eyes only.” Order (ECF No. 12) at 1-2. Judge
Shwartz did not rule on the admissibility of the records. Id.
The Defendants removed the case to this Court on September 29, 2010.
(ECF No. 1). The case was originally assigned to Hon. Faith S. Hochberg.
Defendants filed an Answer and Counterclaim on October 13, 2010. (ECF No.
3). The case was referred to mediation on October 21, 2010. (ECF No. 5). On
June 29, 2011, while the mediation was pending, the case was reassigned to
Hon. Claire C. Cecchi. (ECF No. 23). On March 20, 2012, the mediator reported
that the mediation was unsuccessful. (ECF Entry dated 3/2/20 12). Judge
Cecchi referred the case to mediation again on June 26, 2012. (ECF No. 52).
On August 1, 2012, the case was reassigned to me. (ECF No. 54). On
June 7, 2013, the Defendants moved for summary judgment. (ECF Nos. 61,
62). On August 8, 2013, after the motions were fully briefed, the mediator
indicated that the case might return to mediation after the pending motions
were decided. (ECF Entry dated 8/8/2013).
Before the Court are two motions for summary judgment: one on behalf
of Defendant Whittenburg (ECF No. 61), and one on behalf of Newark, Neals,
and Pereira (ECF No. 62).
A. Summary Judgment Standard
Federal Rule of Civil Procedure 56(a) provides that summary judgment
should be granted “if the movant shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law.”
Fed. R. Civ. P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204 (3d Cir. 2000).
In deciding a motion for summary judgment, a court must construe all facts
and inferences in the light most favorable to the nonmoving party. See Boyle v.
County of Allegheny Pennsylvania, 139 F.3d 386, 393 (3d Cir. 1998) (citing
Peters v. Delaware River Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir.
1994)). The moving party bears the burden of establishing that no genuine
issue of material fact remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322—
23 (1986). “[W]ith respect to an issue on which the nonmoving party bears the
the burden on the moving party may be discharged by
burden of proof.
‘showing’—that is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case.” Celotex, 477 U.S. at 325.
Once the moving party has met that threshold burden, the non-moving
party “must do more than simply show that there is some metaphysical doubt
as to material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475
U.s. 574, 586 (1986). The opposing party must present actual evidence that
creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at
248; see also Fed. R. Civ. P. 56(c) (setting forth types of evidence on which
nonmoving party must rely to support its assertion that genuine issues of
material fact exist). “[Ujnsupported allegations
and pleadings are
insufficient to repel summary judgment.” Schoch v. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Norwest Mortg., Inc., 243
F.3d 130, 138 (3d Cir. 2001) (“A nonmoving party has created a genuine issue
of material fact if it has provided sufficient evidence to allow a jury to find in its
favor at trial.”). If the nonmoving party has failed “to make a showing sufficient
to establish the existence of an element essential to that party’s case, and on
which that party will bear the burden of proof at trial.
there can be ‘no
genuine issue of material fact,’ since a complete failure of proof concerning an
essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992)
(quoting Celotex, 477 U.S. at 322—23).
B. Analysis of Maddox’s Claims
Maddox’s complaint contains seven counts: (1) retaliation under the New
Jersey Law Against Discrimination (“LAD”), N.J.S.A. 10:5-1; (2) breach of
contract and implied covenant of good faith and fair dealing; (3) wrongful
discharge pursuant to N.J.S.A. 34:15-39.1; (4) violations of 42 U.S.C. § 1983,
1985(3), and 1988; (5) common law wrongful discharge; (6) illegal dismissal or
suspension under N.J.S.A. 40A:9-172(1) & (4); and (7) negligent
hiring/retention. Compl. (ECF No. 1-1). Because I do not find that the record
contains sufficient evidentiary support for any of Maddox’s claims for relief, I
will award summary judgment to the Defendants on all seven counts of the
1. Discrimination Claims under the LAD (Count 1)
In Count 1, Maddox alleges that she was retaliated against, subjected to
a hostile work environment, and given disparate treatment, all in violation of
the LAD. Compl. ¶ 19. Although these three related employment discrimination
theories rest on a common set of facts, I consider them separately.
Maddox asserts that Defendants terminated her employment because
she had reported Whittenburg’s religious comments to Saleem Safdar,
complained about her workload, and made a worker’s compensation claim.
Compl. ¶J 10-17. LAD retaliation claims follow the burden-shifting framework
established in McDonnell Douglas v. Green, 411 U.S. 792 (1973). Under that
framework, the plaintiff must first establish a prima facie case of
discriminatory retaliation. To do so, Plaintiff must demonstrate that: (1) she
engaged in a protected activity known by the employer; (2) she suffered an
adverse employment action; and (3) her participation in the protected activity
caused the retaliation. Craig v. Suburban Cablevision, Inc., 660 A.2d 505, 508
(N.J. 1995). A LAD Plaintiff bears the burden of providing that her original
complaint (i.e., the protected activity that triggered the retaliation) was made
reasonably and in good faith. Carmona v. Resorts Int’l Hotel, Inc., 915 A.2d 518,
520 (N.J. 2007). An unreasonable, frivolous, bad-faith, or unfounded complaint
is not a basis for retaliation liability under the LAD. Id. at 530.
Once the Plaintiff has met her initial burden, the defendants must
articulate a legitimate, non-retaliatory reason for the adverse action. Young v.
Hobart West Group, 897 A.2d 1063, 1072-73 (N.J. Super. Ct. App. Div. 2005).
Then, “the plaintiff must come forward with evidence of a discriminatory motive
of the employer, and demonstrate that the legitimate reason was merely a
pretext for the underlying discriminatory motive.” Id. at 1073 (internal
(1) Prima Facie Case of Retaliation
To state a prima facie case of discriminatory retaliation is not an onerous
requirement, see Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253
(1981), but Maddox has fallen short here. She identifies three “protected
activities” that allegedly triggered retaliation. She asserts that Defendants
retaliated against her for complaining about her workload. Id. ¶ 13. She asserts
that Defendants discriminated against her because she spoke of comments
Whittenburg made to Saleem Safdar, a Muslim staff attorney. Compl. ¶ 10. And
she asserts that Defendants retaliated against her because she made a
workers’ compensation claim. Id. ¶ 17.
Complaining about one’s workload is not in itself a protected activity
under the LAD’s antidiscrimination provisions. Young, 897 A.2d at 1073. On
the other hand, Maddox’s complaint about the Whittenburg-Safdar incident
and her worker’s compensation claim could relate to practices made unlawful
by the LAD: religious discrimination and disability discrimination.’ See id.
As noted above, it would not be accurate to say that Maddox “reported” the
Safdar incident. Maddox asserts in conclusory fashion that she did; Defendants assert
that Safdar reported it himself. DSMF ¶J 130-3 1, 135 (citing Chandy Cert. ¶ 16);
RSMF ¶ 133, 135. At oral argument, Maddox’s attorney appeared to concede that
(citing N.J.S.A. 1O:15-12d). The second prong of a prima facie LAD case,
moreover, is not in dispute: Maddox’s firing was an adverse employment action
by any definition.
Maddox has failed, however, to set forth facts establishing a causal
connection between the protected activity and her termination. A causal
connection may be demonstrated by evidence of circumstances that justir an
inference of retaliatory motive. Romano v. Brown & Williamson Tobacco Corp.,
665 A.2d 1139, 1142 (N.J. Super. Ct. App. Div. 1995).
Thus, for example, causation may be found where “those exhibiting
discriminatory animus influenced or participated in the decision to terminate.”
Abramson v. William Paterson College of N.i, 260 F.3d 265, 286 (3d Cir. 2001)
(Title VII and NJLAD case). There is no evidence here, however, that
Whittenburg had any involvement in the termination decision. Nor is there any
evidence that the higher-ups who made the decision, particularly Corporation
Counsel Neals, harbored any discriminatory animus.
Maddox contends in the alternative that, because her termination
occurred after protected activity, a causal connection may be inferred. See Opp.
at 13-15. She points out that it was aSter she complained about the Safdar
incident and her workload that Defendants “move[d] up” the review of her files,
and that as a result of that review, she was terminated. Id. at 15-16.
It is true that causation may be inferred from temporal proximity: i.e.,
protected conduct that is “closely followed” by the adverse action. Id. (citing
House v. Carter-Wallace, 556 A.2d 353 (N.J. Super. Ct. App. Div.); Bimbo v.
Burdette Tomlin Mem. Hosp., 644 F. Supp. 1033 (D.N.J. 1986)). But temporal
proximity, to raise an inference of discrimination on its own, must be “very
close.” See Clark County School Dist. v. Breeden, 532 U.S. 268, 273 (2001). The
termination here did not “closely follow” the protected activity; it occurred 15
months later. See Young, 897 A.2d at 1073-74 (4 months between complaint
and termination not “unusually suggestive” of causation or retaliation for
Safdar may have come forward himself, and that Maddox’s “reporting” of the incident
consisted of her being called upon as a reluctant witness. Maddox herself was very
clear in her deposition that she was called in by Jones, who was already investigating
the incident, and that she reluctantly answered questions. See D’Anton Ex. H,
Maddox Dep. at 82-83; Maddox Ex. 3, Maddox Dep. at 146-150) Although the
characterization is not dispositive, her portrayal of herself as a whistleblower has no
support in the evidence.
purposes of summary judgment); LeBoon v. Lancaster Jewish Community
CenterAss’n, 503 F.3d 217, 233 (3d Cir. 1989) (3 months not sufficient).
There is a strain of case law that suggests a somewhat broader
conception of proximate causation. Thus, for example, in Staub v. Proctor
Hosp., 131 S. Ct. 1186 (2011), the Court considered a claim that an employer
fired an employee based on his military reserve obligations, in violation of the
Uniformed Services Employment and Reemployment Rights Act (“USERRA”).
There, immediate supervisors took discriminatory disciplinary action based on
their hostility to the employee’s military service. A vice president then
dismissed the employee on the basis of that disciplinary action, but the vice
president was innocent of any antimilitary bias. The Court held “that if a
supervisor performs an act motivated by antimilitary animus that is intended
by the supervisor to cause an adverse employment action, and if that act is a
proximate cause of the ultimate employment action, then the employer is liable
under USERRA.” Id. at 1194.
This is sometimes known as a “subordinate bias” or “cat’s paw” theory
of proximate causation. Proximate cause requires “some direct relation between
the injury asserted and the injurious conduct alleged”; it excludes “links that
are too remote, purely contingent, or indirect.” Id. at 1192. This Circuit has
applied the Staub proximate cause analysis, at least in a general way, in the
context of a Title VII employment discrimination claim. See McKenna v. City of
Philadelphia, 649 F.3d 171 (3d Cir. 2011) (finding that an independent
determination by higher-ups did not necessarily break the chain of causation
where they adopted the evidence developed by the supervisor who
Maddox’s case, however, is a far cry from anything that has been
recognized as a viable “cat’s paw” theory. The cases ordinarily involve a
disciplinary finding or report by a biased supervisor that furnished the basis
for a superior’s decision to dismiss or discipline the employee. But it is not
alleged here that Whittenburg misled his superiors. Rather, he supposedly gave
Maddox too much work. Her complaints of overwork led to a supervisory review
of her files. That review uncovered multiple examples of substandard
performance. That substandard performance, uncorrected after three months,
led to her dismissal. This chain of events would not meet the standard of
When used as a term for an unwitting intermediary, the expression derives from
the La Fontaine fable (possibly derived in turn from Aesop) of the wily monkey who
persuaded the cat to pull his chestnuts out of the fire.
First, as to Maddox’s complaints about Whittenburg, the evidence does
not support an inference of retaliation. Whittenburg had no authority to
terminate Maddox, and no involvement in the decision to terminate her. DSMF
97-98; RSMF 97. Maddox claims a less direct connection: i.e., that Whittenburg
piled on the work, and that the review of her files was accelerated as a result of
the Whittenberg/ Safdar affair. The Safdar incident, however, occurred in
September 2007. DSMF ¶ 126-27. Defendants agreed to review Maddox’s files
six months later, after a March 2008 meeting among Maddox, Foster, Neals,
and Torok—a meeting that Maddox herself requested to address her caseload.
Ex. P, Foster Memo to File; DSMF ¶ 68. The file review itself commenced a full
seven months later, at the end of October 2008. DSMF ¶ 69; Ex. Q, Email from
Pereira to Maddox. And it was not until January 2009, after Maddox failed to
correct problems discovered in the review, that she was terminated. The
implication that the file review was a product of discrimination related to the
Safdar incident is unsupportable. There is no suggestive temporal proximity to
the Safdar incident, and Maddox cites no direct or circumstantial evidence of
retaliation. In short, Maddox has not produced any evidence linking her alleged
comments about the Safdar incident to the file review or to her termination.
Second, Maddox’s workers’ compensation claim does not support an
inference of a retaliatory motive for her termination. Maddox was injured at
work in December 2008. She asserts that she then gave Defendants “notice”
that she was going to file a workers’ compensation claim. Compi. ¶ 16. But she
does not submit any direct evidence of a connection between such “notice” and
the file review or the resulting termination. The record is devoid of any
evidence, for example, that Defendants opposed her claim or that they took any
action in response to receiving notice of it. Nor does the time line give rise to an
indirect inference of retaliation. At the time Maddox was injured, the review of
her files had already commenced. DSMF ¶ 69. And Maddox did not file her
actual workers’ compensation claim until March 2012, several years after she
was terminated. She settled the claim in February 2013. Id. DSMF ¶f 105-06.
Third, the notion that the review of Maddox’s files constituted
“retaliation” for her complaints about her workload has no evidentiary
foundation. A heavy workload as such invokes no aspect of antidiscrimination
law. There is no direct evidence of retaliation, and Maddox offers no
circumstantial evidence. At a March 2008 meeting, Maddox said her workload
was too heavy. The City’s response—a review of her workload—was the obvious,
logical next step. All attorneys, moreover, were subject to such reviews.
Maddox’s file review was perhaps a response to her complaints about her
workload, but without further evidence it cannot be assumed to have
constituted retaliation for such complaints.
Overall, the circumstances and timing of Maddox’s complaints and her
termination do not establish a causal connection. The mere fact that these
events preceded her termination is insufficient to support an inference of a
retaliatory motive. El-Sioufi v. St. Peter’s University Hosp., 887 A.2d 1170, 1189
(N.J. Super Ct. App. Div. 2005). Maddox has not proffered any additional
evidence that any protected conduct was related to her termination. Therefore,
her LAD retaliation claim must fail. See House v. Carter-Wallace, Inc., 556 A.2d
353, 360 (N.J. Super. Ct. App. Div. 1989).
As stated above, Maddox has not established a prima face case of
retaliation. But even if she had, her LAD claim would nevertheless fail because
she cannot show that the proffered reasons for her termination were
pretextual. To demonstrate pretext, the employee must show that the
employer’s reasons for firing her are “weak, incoherent, implausible, or so
inconsistent that ‘a reasonable factfinder would rationally find them unworthy
of credence.” Sarullo v. US Postal Service, 352 F.3d 789, 800 (3d Cir. 2003)
(Title VII) (quoting Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1108-09
(3d Cir. 1997)). To prove pretext, “a plaintiff may not simply show that the
employer’s reason was false but must also demonstrate that the employer was
motivated by discriminatory intent.” Zive v. Stanley Roberts, Inc., 867 A.2d
1133, 1140 (N.J. 2005) (LAD case); see also Viscik v. Fowler Equip. Co., 800
A.2d 826 (N.J. 2002) (LAD case). The employer is entitled to summary
judgment if, after proffering a non-discriminatory reason for its decision,
plaintiff cannot “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.” Zive, 867 A.2d at 1144 (internal quotations omitted).
Defendants assert that Maddox, a staff attorney, was terminated for a
variety of performance-based reasons, some of which may have been
tantamount to professional malpractice. See Newark Def. Br. (ECF 62-1) at 28;
DSMF ¶ 100. The record is replete with evidence of Maddox’s substandard
performance. For instance, documents establish that she did not timely file
proofs of claim in bankruptcy matters, that she did not process checks from
the bankruptcy court, and that she did not give notice to the court in
proceedings where Newark was withdrawing its opposition. See Ex. N, Foster
Memo to File; Ex. T, Uncashed Checks. The unprocessed checks included ones
that had lain undeposited since before Maddox’s employment, but some dated
from the period of her employment as well. See Ex. T; DSMF
¶f 101, 120-2 1. In
addition, the record documents Maddox’s attendance issues. See Ex. I, P1. Time
Sheets; Ex. K, P1. Sick Leave Records. In short, Newark’s claims are thoroughly
documented: its claims of uncashed checks, for example, are supported by the
checks themselves; its claims about attendance, by the attendance records; its
claims about failures to file pleadings, by the case files.
Maddox’s denials are conclusory; she has failed to offer any evidence
contradicting the performance and attendance issues raised by Defendants.
See, e.g., RSMF ¶J 74, 75 (citing no evidence to dispute Defendants’ assertions
that Maddox failed to file proofs of claim in bankruptcy cases and responsive
pleadings in foreclosure matters). To explain the performance issues, Maddox
repeatedly asserts that she had an unfair caseload. See Opp. at 13-14.
Maddox’s assertions do not raise a genuine issue of material fact as to her
employer’s belief that she did not adequately manage her cases. Many lawyers
have large caseloads. At issue here is not workload assignment but workplace
discrimination. Maddox’s argument that her absences were attributable to a
chronic medical condition is contradicted by the few medical records she has
submitted. See Ex. 15, Medical Records.
This Court does not sit to second-guess employment decisions, however
wrongheaded, or to decide whether a lawyer had too many cases. The court
must look past general contentions that a firing was unfair or unwise, and
determine whether it was driven by a prohibited motive:
While there may be factual disputes relating to the circumstances
of [her] termination, Plaintiff’s burden is to demonstrate that
“[Defendant’s] reasons were a pretext for discrimination, not a
pretext for something else.” Scott v. Allied Waste Svcs. Of BucksMont., 2010 U.S. Dist. LEXIS 136202, 2010 WL 5257463, at 4
(E.D. Pa. Dec. 23, 2010) (emphasis in original). [She] “must show
more than that [Defendant’s] decision to [demote her] was ‘wrong
or mistaken,’ but must demonstrate that ‘it was so plainly wrong
that it cannot have been the employer’s real reason.”’ 2010 U.S.
Dist. LEXIS 136202, [WL] at *5 (quoting Baker v. United Def
Indus., 403 Fed. Appx. 751, 2010 U.S. App. LEXIS 25140, 2010
WL 4997648, at *4 (3d Cir. Dec. 8, 2010).
Vasbinder v. Shinseki, 2011 WL 1789989, at *24 (W.D. Pa. May 10, 2011). See
also Keller, 130 F.3d at 1108 (en banc; ADEA case) (“a plaintiff cannot simply
, since the factual
show that the employer’s decision was wrong or mistaken
vated the employer, not
dispute at issue is whether discriminatory animus moti
whether the employer is wise, shrewd, prudent or competent”).
Although Maddox, with or without citations to the reco
genuine or material
Defendants’ documented case, none of those disputes are
evidence of record
to her claims of retaliation and discrimination. The
consistently supports Newark’s proffered reasons for
disagrees with those reasons, but she has not offered any com
ine issue of fact
that they were nonexistent or pretextual. There is no genu
remaining for trial on Maddox’s LAD retaliation claim.
b. Hostile Work Environment
Maddox asserts that Defendants subjected her to a
claim, too, rests
environment, in violation of the LAD. Compi. ¶ 19. That
primarily on the incident between Whittenburg and Safdar in
g to provide the
The incident was followed, she says, by Whittenburg’s “failin
unfairly distributing the case load.” Id. ¶ 13.
necessary assistance to her and
-return receipts went
She also claims that her flash drive and a number of mail
evidence. Id. In her
missing—losses she attributes to Whittenburg, without any
time, that a co
responsive statement of facts, Maddox asserts, for the first
employee, Ayesha Freeman, told her that Whittenburg did not
employees and was friendlier with white employees. RSMF ¶ 128.
A hostile work environment claim follows the same burd
analysis as other discrimination claims under the LAD: (1) the
a facie case of
come forward with sufficient evidence to constitute a prim
discrimination; (2) the defendant then must show a
t then be given
discriminatory reason for its decision; and (3) the plaintiff mus
merely a pretext or
the opportunity to show that defendant’s stated reason was
The State Univ. of
that it was discriminatory in its application. Dixon v. Rutgers,
N.i, 541 A.2d 1046, 1051 (N.J. 1988).
To establish a prima facie hostile work environment claim,
employee must show that the conduct complained of would not
that the conduct
but for the employee’s membership in a protected class, and
n believe that the
was severe or pervasive enough to make a reasonable perso
conditions of employment were altered and the working
hostile or abusive. Lehmann v. Toys R Us, Inc., 626 A.2d 445,
support a claim,
1993); Taylor v. Metzger, 706 A.2d 685, 688-89 (N.J. 1998). To
cases, a single
the conduct must be sufficiently pervasive or severe. In some
incident can trigger liability if the incident is severe enough. Metzger, 706 A.2d
at 502. On that score, however, the court must remain mindful that the LAD is
[Djiscourtesy or rudeness should not be
not a “general civility code
confused with racial harassment,” and “a lack of racial sensitivity does not,
alone, amount to actionable harassment.” Andel v. UBS/PaineWebber, Inc., 860
A.2d 945, 955 (N.J. Super. App. Div. 2004) (quoting Heitzman v. Monmouth
County, 728 A.2d 297, 304 (N.J. Super. Ct. App. Div. 1999)). The court must
consider the “totality of circumstances” to determine whether the conduct at
issue is sufficiently extreme. Caver v. City of Trenton, 420 F.3d 243, 262 (3d
Cir. 2005) (considering Title VII and LAD claim); Metzger, 706 A.2d at 501.
Maddox complains that she was given too much work, but the LAD does
not protect against that; it is a law against discrimination. Maddox has not
produced any evidence that case assignments were unfairly allocated on the
basis of gender, race, religion, or any other prohibited basis. Nor does she
produce evidence of other employees’ workloads for purposes of comparison.
Maddox does not cite actual patterns of work assignments to support her
contention that Whittenburg assigned case work unequally, let alone on a
discriminatory basis. In short, Maddox’s generalized complaints about the size
of her workload do not establish a hostile work environment.
Maddox cites a statement allegedly made by Ayesha Freeman to the effect
that Whittenburg was more “friendly” with non-minorities and lacked “respect”
for minority persons. RSMF ¶ 128. That alleged statement is a very general and
conclusory opinion. It does not relate to work assignments, Maddox’s or anyone
else’s. It possesses a weak, perhaps wholly inadequate, evidentiary foundation;
it is Maddox’s account of what Freeman said about Freeman’s perception of
Whittenburg’s attitudes. Freeman—the alleged declarant—says she “might” have
warned Maddox about Whittenburg, but denies any certain memory of such a
statement and says she will not testify to it. (Maddox Ex. 10, Maddox and
Freeman emails.) Now, Freeman has submitted a certification essentially
undercutting her alleged oral statement to Maddox; that certification under
penalty of perjury, not Maddox’s memory of a hearsay statement, represents
what Freeman would testify to if called as a witness.’ At any rate, a plaintiff
Freeman’s certification says, for example, the following:
1 always had a good relationship with Ivan Whittenburg.
He was always respectful of me.
I had no reason to not think that he was a nice guy.
Ivan was never disrespectful to women of color to my knowledge.
He is not a racist to my knowledge.
cannot establish that she suffered from a hostile work environment by saying
that someone told her there was a hostile work environment.
The allegations regarding Whittenburg’s comments and conduct towards
attorney Safdar merit closer examination. The parties dispute the scope and
tenor of that September 2007 confrontation. The record is clear, however, that
Safdar complained about a conversation he had with Whittenburg concerning
Safdar’s Muslim faith.
In Defendants’ version, Safdar reported that Whittenburg expressed
curiosity about Safdar’s religion, and asked to attend mosque with him. DSMF
¶J 126-28 (citing Ex. 0, Whittenburg Dep. at 60-63). That was enough to make
Safdar uneasy and he reported the conversation to Jones. Jones and Foster
followed up with an investigation of the incident. DSMF ¶J 130-31; see also
RSMF Ex. 9, Nance Dep. (confirming that Safdar reported the incident).
Maddox portrays the incident as more serious (although it does not
appear that Maddox claims to have been present). She asserts that
Whittenburg did not merely express curiosity, but insensitively or aggressively
questioned Safdar about Ramadan. And at some point, she says, Whittenburg
made reference to his visit to Jerusalem, and said that he would “blow the head
off a Pakistani kid” if such a “kid” approached him in an aggressive manner.
DSMF ¶ 128 (citing Ex. 3, Maddox deposition at 147-49).
Maddox states that she reported the Safdar incident to Marquis Jones.
That appears to be an exaggeration. In her own deposition, Maddox merely
says that Jones called her into his office and asked her questions about the
incident, and that she reluctantly answered. See n. 15, supra; RSMF ¶J 133,
135; Maddox Ex. 3 (Maddox Dep. at pp. 14648).18
Maddox does not allege that Whittenburg directed any religion-based
discriminatory comments or conduct at her; she relies solely on comments to
Safdar. As a threshold matter, the LAD is not receptive to such claims of
harassment-by-proxy. When comments are directed at persons other than the
plaintiff, the necessary causation is lacking. See Caver, 420 F.3d at 263
His behavior, at a foreclosure meeting before I retired, towards Saleem
Safdar was not because he was a racist but maybe because he was
getting a little power. He was going to succeed me as Section Chief.
Freeman Cert. ¶J 7-12 (Docket no. 62-8).
Neither party cites any affidavit or testimony of Safdar himself.
(plaintiff cannot show that comments made to others would not have been
made but for plaintiffs membership in a protected class). At most, such thirdparty comments would supplement or provide background to a viable claim.
See id. (distinguishing New Jersey Supreme Court’s decision in Taylor, 706
A.2d at 690, where epithet was directed at plaintiff).
Setting aside that no actual connection is alleged, there is hardly even a
potential connection between this incident and Maddox’s own protected
religious status. Safdar, a Muslim, belongs to a protected religious class. It is
not at all clear that Maddox herself belongs to that class.
Maddox has belatedly asserted that, although she is a practicing
Christian, she had a Muslim upbringing. RSMF ¶ 8. Maddox failed to refer to
her Muslim background in her deposition testimony or interrogatory responses.
Whittenburg Reply Br. (ECF No. 72) at 2-3 (citing Ex. 1 at 382); City Def. Reply
Br. at 4. Maddox first asserted that she was raised Muslim in response to this
summary judgment motion, in a certification dated June 17, 2013. Id. For
purposes of argument, I will assume that Maddox’s belated discovery that she
herself was offended is not a sham. But Maddox does not contend that anyone
at the Corporation Counsel’s office, including Whittenburg, knew of her Muslim
upbringing or believed she was a Muslim. Maddox does not assert that, when
she spoke to Defendants about the incident, she informed them of any personal
connection to the incident or to the Muslim faith. See Opp. at 3; Ex. H at 14952. And in any event her hostile work environment claim is defective as a
matter of law as explained above.
Finally, this discrete incident does not rise, or sink, to the level of a
“hostile environment.” There is no “pattern.” And although one sufficiently
severe incident may suffice, a claim cannot be established by “epithets or
comments which are ‘merely offensive”; a lack of “racial or ethnic sensitivity
does not, alone, amount to actionable harassment.” Mandel, 860 A.2d at 955.
Thus, for example, the Third Circuit has upheld summary judgment rejecting
the hostile work environment claim of a female federal agent who submitted
evidence of a taunting emailed video of a female suspect being tasered;
comments about her appearance in tight jeans; and disparate access to certain
work assignments and facilities. See Sala v. Hawk, 481 F. App’x 729, 735 (3d
Cir. 2012) (not precedential). Maddox’s allegations of harassment—not directed
at her—do not even rise to that inadequate level.
In sum, the record would not support a finding that the conduct was
severe enough to render Maddox’s work environment hostile or abusive.
Maddox fails to assert a single derogatory statement or action that was directed
at herself. Maddox was not the target of Whittenburg’s conduct towards
and she did not claim to be personally affected by it when she discussed it
her supervisors. See Ex. H at 150-52. Her recent declaration that she
raised as a Muslim does not transform this fairly isolated incident into
severe enough to have altered the terms of her employment. And her worklo
however heavy, has not been shown to be disproportionate, abusive,
product of the Safdar incident.
c. Disparate Treatment
Maddox also fails to establish a claim under the disparate treatment
prong of the LAD. Compi. ¶ 19. Like other LAD claims, a disparate treatm
claim employs the familiar tripartite burden-shifting methodology of McDo
Douglas. Mandel, 860 A.2d at 956 (citing Fentes v. Perskie, 32 F.3d 759,
(3d Cir. 1994)).
Disparate treatment is demonstrated when a member of “a protected
group is shown to have been singled out and treated less favorably than
similarly situated on the basis of an impermissible criterion.” Id. at 956.
Maddox asserts several examples of what she perceived as disparate treatm
at the hands of Defendants. These assertions do not suffice to raise a genuin
material issue of fact for trial.
I pass over incidents already sufficiently discussed. In connection with
this claim, however, Maddox adds that former Corporation Counsel Chand
stated or implied that Maddox would be promoted if the foreclosure project
turned out to be a success. Compi. ¶ 4; RSMF ¶J 30-3 1. Even if this promis
were in fact made and broken, it would not support a claim of dispara
treatment. Maddox offers no evidence that any other employee was promo
over her or otherwise treated differently. Maddox asserts generally that her
workload was heavier than that of other lawyers. RSMF ¶ 39-40. She does not
point to a single specific instance of another lawyer in the department being
given fewer, or better, assignments. Maddox claims that her complaints
management about her workload went unheeded. She does not, however, point
to any evidence that other employees’ complaints were heeded. And in fact,
Maddox admits that Defendants did respond to her complaints by deciding
have Torok and Defendant Pereira review her case files. RSMF ¶ 66. Finally
even assuming arguendo that Maddox received disparate treatment, she has
not produced a scintilla of evidence that any such disparity was based on an
“impermissible criterion.” Mandel, 860 A.2d at 956. There is no evidence in the
record sufficient to raise a triable issue as to Maddox’s disparate treatment
In sum, Maddox has failed to establish a triable case of LAD
discrimination under any of the three theories she asserts. Therefore, summary
judgment on Count 1 will be granted in favor of the Defendants.
2. Breach of Contract (Count 2)
In Count 2, Maddox asserts a state-law breach of contract theory. She
finds an implied covenant of good faith and fair dealing implicit in personnel
policies and the like. Compl. ¶ 2. Maddox asserts that Defendants breached
that duty by discriminatorily refusing to judge her on the basis of her ability
and merit, by “failing and refusing to consider her long term record of
employment service,” and by violating company procedures regarding
progressive discipline. Id. ¶ 3.
The covenant of good faith and fair dealing is not an implied contract,
but rather an implied term of a contract. E.g., Sons of Thunder, Inc. v. Borden,
Inc., 690 A.2d 575, 587 (N.J. 1997) (repeatedly stating that the covenant is one
implied “in every contract”) (emphasis added); Emerson Radio Corp. v. Orion
Sales, Inc., 253 F.3d 159, 169-70 (3rd Cir. 2001) (“An implied covenant of good
faith and fair dealing is present in all contracts governed by New Jersey law”)
(emphasis added). The relevant contract, says Maddox, is the collective
bargaining agreement (“CBA”). DSMF ¶J 103, 104, 114, and Ex. Z (the CBA).
But that gives rise to another problem.
Any contractual claim based on the CBA is preempted by Section 301 of
the Labor Management Relations Act. Caterpillar Inc. v. Williams, 482 U.S. 386,
393-94 (1987). “[Wjhen resolution of a state-law claim is substantially
dependent upon analysis of the terms of an agreement made between the
parties in a labor contract, that claim must either be treated as a § 301 claim,
or dismissed as pre-empted by federal labor-contract law.” Allis-Chalmers Corp.
v. Lueck, 471 U.S. 202, 220 (1985) (citations omitted). Accord Cifemi v. Day &
Zimmerman, Inc., 529 F. App’x 199, 202 (3d Cir. 2013) (not precedential;
Nor is preemption limited to claims based on express contractual terms.
Federal law preempts any claim of breach of the covenant of good faith and fair
dealing that is an implied term of the CBA. Allis-Chalmers, 471 U.S. at 218
(reasoning that because the claim “not only derives from the contract, but is
defined by the contractual obligation of good faith, any attempt to assess
liability here inevitably will involve contract interpretation”); Guerrero v.
Hovensa, 259 F. App’x 453, 458 (3d Cir. 2007) (not precedential) (“Guerrero’s
second claim is also completely preempted as it alleged that there was a
‘violation of the implied contractual duty of good faith and fair dealing.’
Whether there is an ‘implied contractual duty,’ will necessarily require an
analysis of the terms of the CBA to determine if the contract as a whole obliges
the employer to act with good faith and fair dealing.”); Martinez v. Anselmi &
Decicco, Inc., 2009 WL 5206286, at *8 (D.N.J. Dec. 22, 2009) (“Thus, to the
extent her breach of express contract or breach of the covenant and good faith
and fair dealing claims are based on the CBA, they are preempted by the
LMRA.”); Bergen Reg’l Med. Ctr., L.P. v. Health Prof1 & Allied Emples. Union,
2005 WL 3216549, at *4 (D.N.J. Nov. 28, 2005) (“this and other courts have
recognized complete preemption of claims under Section 301 based on the
implied covenant of good faith and fair dealing that adhere to a collective
Maddox’s breach of contract claim is therefore preempted to the extent it
arises from the CBA. To put it another way, her state law breach of contract
claim is confined to legal rights that arise independent of the CBA.
To lend content to her claim, Maddox looks to various Newark policies
and procedures. Some of these, such as the alleged duty to evaluate fairly her
“ability and merit,” or her length of service, are clearly within the scope of the
CBA. Job security based on length of tenure, employment at will, or
consideration based on merit, are matters covered by the CBA. (CBA, DSMF
Ex. Z, passim.) Such claims are preempted.
A potential claim extrinsic to the CBA might arise from the Division of
Personnel Department of Administration Operating Policies and Procedures.
That policy statement requires that Newark follow a remedial system of
progressive discipline. (RSMF Exhibit 4.) Newark, she says, violated that policy
when it terminated her without implementing the required progressive
disciplinary steps. RSMF ¶ 104. That progressive discipline requirement,
however, applies only to “employees with permanent status,” Ex. 4, and it does
not apply to an “unclassified employee,” DSMF ¶ 109 (citing Ex. CC). Maddox
does not cite any evidence that she enjoyed “permanent status.” Nor does she
submit anything in response to Defendants’ evidence that all assistant
corporation counsel served at the pleasure of the Corporation Counsel and
were “unclassified” employees. See DSMF Exs. C, CC.
The Newark Defendants, at any rate, do not focus on preemption, but seem to
argue that Maddox has failed to set forth evidence of breach of any contractual duty,
whether inside or outside the CBA. Newark Def. Br. (ECF 62-1) at 30.
Because the record contains no evidence that the progressive discipline
policy applies to Maddox, Maddox cannot rely on it as the source of a
contractual duty arising outside of the CBA. Maddox’s Count 2 contract claim
must be denied as a matter of law.
3. Wrongful Discharge Under N.J.S.A. 34:15-39.1 (Count 3)
In Count 3, Maddox asserts a claim of wrongful discharge in retaliation
for her workers’ compensation claim. The New Jersey Workers’ Compensation
Act, N.J.S.A. 34:15-39.1, makes it unlawful for any employer to discharge or
discriminate against an employee who claims or attempts to claim workers’
compensation benefits. To establish a prima facie case of retaliatory discharge,
the plaintiff must show “(1) that [s]he made or attempted to make a claim for
workers’ compensation; and (2) that [sJhe was discharged in retaliation for
making that claim.” Galante v. Sandoz, Inc., 470 A.2d 45, 47 (N.J. Super Ct.
Law Div. 1983). Galante upheld summary judgment for the defendant employer
where plaintiff failed to produce any evidence that the termination was
As discussed in the context of Maddox’s LAD claim, the record contains
no evidence connecting her termination to her workers’ compensation claim.
See p. 21, supra. This Count 3 wrongful discharge claim, which mirrors one
component of the retaliation claim under the LAD, likewise fails as a matter of
1983, 1985(3), 1988 (Count 4)
4. Violations of 42 U.S.C.
Although the allegations in Count 4 are not easily construed, Maddox
appears to assert three federal and state constitutional claims. First, Maddox
asserts that Defendants retaliated against her for making discrimination
complaints, in violation of her First Amendment rights. Compi. Count 4 ¶ 3.
Second, she asserts that Defendants deprived her of her property rights and
violated her substantive due process rights under the Fourteenth Amendment.
Id. Count 4 ¶ 4. Third, she asserts that Defendants violated her right to bring
grievances under Art. 1, para. 19, of the New Jersey Constitution. Id. Count 4
¶ 3. Maddox also asserts a claim pursuant to 42 U.S.C. § 1985 for conspiracy
Maddox does not cite the N.J. Civil Rights Act, and awkwardly asserts this state
constitutional claim under 42 U.S.C. § 1983.
to violate her constitutional rights, and a claim for attorneys’ fees under 42
U.S.C. § 1988.21 Id. Count 4 ¶ 4.
a. First Amendment
Maddox asserts that Defendants violated her First Amendment rights
when they retaliated against her for making complaints or reports of racial and
religious discrimination. Compl. Count 4 ¶ 2. Specifically, Maddox asserts that
Defendants decided to review Maddox’s files ahead of schedule because she
reported the Whittenburg/Safdar incident. Opp. at 28-29.
To succeed on a retaliation claim, a plaintiff must show (1)
constitutionally protected conduct, (2) retaliatory action sufficient to deter a
person of ordinary firmness from exercising her constitutional rights, and (3) a
causal link between the constitutionally protected conduct and the retaliatory
action. Thomas v. Independence Twp., 463 F.3d 285, 296 (3d Cir. 2006) (citing
McKee u. Hart, 436 F.3d 165, 170 (3d Cir. 2006) (citing Mitchell v. Horn, 318
F.3d 523, 530 (3d Cir. 2003))). Where the plaintiff is a government employee,
she must show that she spoke, not merely as an employee, but as a citizen, on
a matter of public concern. Borough of Duryea, Pa. v. Guarnieri, 131 S. Ct.
2488, 2493, 2500 (2011) (holding that this test applies in both speech clause
and petition clause cases). If a public employee does not speak as a citizen, the
First Amendment is not implicated by the employer’s personnel decisions. See
Id. Here the adverse action alleged is dismissal, but an actual firing need not be
shown, so long as the alleged retaliatory conduct would “deter a person of
ordinary firmness from exercising her First Amendment rights.” Thomas, 463
F.3d at 296 (citing McKee v. Hart, 436 F.3d 165, 170 (3d Cir. 2006)).
As previously discussed, the parties disagree as to a number of the facts
surrounding the September 2007 Safdar incident. But even viewing the
submitted proofs in the light most favorable to Maddox, see Scott v. Harris, 550
U.S. 372, 380 (2007), I find no factual issue for trial as to this First
Amendment retaliation claim.
For purposes of this discussion, I will assume arguendo that Maddox
established the first element of her claim, i.e., that she engaged in protected
conduct when she spoke to a supervisor on the subject of the Safdar incident.
Such a statement might be construed as pertaining to a matter of public
Section 1988 does not provide an independent cause of action; it authorizes a
plaintiff prevailing under Sections 1981, 1982, 1983, 1985, or 1986 to recover
attorney and expert fees. See 42 U.S.C. § 1988.
concern. See Lane v. Franks et al., 134 S.Ct. 2369, 2380 (2014) (Speech
involves matters of public concern “when it can ‘be fairly considered as relating
to any matter of political, social, or other concern to the community,’ or when it
‘is a subject of legitimate news interest; that is, a subject of general interest
and of value and concern to the public.”’).
Maddox has failed, however, to establish the second and third elements
of the claim: that this report caused the action claimed to be retaliatory.
Thomas, 463 F.3d at 296. That evidentiary deficiency is discussed in detail in
the context of Maddox’s parallel LAD retaliation claim. See Section III.B. 1 .a,
supra. Maddox asserts that after she reported the incident, Defendant Neals
“moved her up to the head of the class” for file review, and that she was
terminated as a result of that review. Opp. at 28. This conflates two complaints
Maddox made: her statement about the 2007 Safdar incident and her 2008
complaint that her workload was too heavy. It was only after Maddox
complained that she had been given an unfair share of the files that Neals
decided that her files should be reviewed. RSMF Ex. 1 at 949722 That review
occurred in late October 2008. From that review, Defendants learned of
performance issues that led or contributed to Maddox’s termination in January
2009. DSMF ¶ 101.
Maddox points to no evidence of retaliation for reporting the 2007
incident. The incident and her dismissal occurred fifteen months apart, and
Whittenburg was not involved in her dismissal. No evidence links the Safdar
complaint to the alleged acceleration of the 2008 file review. No evidence links
that alleged acceleration of the file review (as distinguished from what the file
review revealed) to the termination.
Here, as elsewhere, Maddox disputes one fact or another, contends that
shortcomings were not her fault, and generally argues that her firing was not
justified. The wisdom or correctness of the employer’s judgments, however, is
not at issue; it is not, for example, “a violation of the Constitution for a
government employer to discharge an employee based on substantively
incorrect information.” Fogarty v. Bowles, 121 F.3d 886, 890 (3d Cir. 1997)
(quoting Waters v. Churchill, 511 U.S. 661, 679 (1889) (O’Connor, J., plurality
opinion)). Because Maddox cannot establish that any unlawful retaliation
Contrary to Maddox’s assertions, the deposition testimony of Defendant Neals
does not support her contention that the review of her files was accelerated in
retaliation for her “complaint” about the Whittenburg/Safdar incident. Opp. at 28.
Neals testified that Maddox’s file review was moved up in time because Maddox
“complained” that her workload was too heavy. RSMF Ex. 1 at 94-97.
resulted from protected activity, her First Amendment claim fails as a matter of
b. Fourteenth Amendment and New Jersey Constitutional
The Complaint alleges that Defendants deprived Maddox of her property
and substantive due process rights under the Fourteenth Amendment. Compi.
Count 4 ¶ 4. Maddox also alleges a deprivation of her “right to grieve” under
the New Jersey Constitution. Id. Count 4 ¶ 3. As to these claims, Maddox does
not make any specific factual or legal arguments in her opposition brief. See
Opp. at 26, 36. At any rate, she does not appear to allege any independent
basis for relief based on these additional state and constitutional rights. They
fail for the reasons expressed above.
c. Conspiracy Pursuant to 42 U. S. C.
Maddox alleges that Defendants conspired to violate her constitutional
due process and property rights. Section 1985 potentially provides a cause of
action for the victim of a conspiracy motivated by race or gender
discrimination. Farber v. City of Paterson, 440 F.3d 131, 138 (3d Cir. 2006). To
support a Section 1985 claim, the plaintiff must allege and prove four
elements: (1) a conspiracy; (2) for the purpose of depriving, either directly or
indirectly, any person or class of persons of the equal protection of the laws, or
of equal privileges and immunities under the laws; (3) an act in furtherance of
the conspiracy; (4) and resulting injury to person or property, or deprivation of
any right or privilege of a citizen of the United States. United Bhd. of Carpenters
& Joiners of Am., Local 610, AFL-CIO v. Scott, 463 U.S. 825, 828-29 (1983). The
discriminatory animus required in the second element must be “class-based
invidiously discriminatory animus,” meaning that the purpose and effect of a
violation is to prevent the victim from enjoying “equality of rights as contrasted
with his and other citizens’ rights.” Farber, 440 F.3d at 135.
As discussed in more detail in the context of the employment
discrimination claims, supra, the record would not support a finding of
discrimination based on a factor such as gender, race, or religion. Maddox
cannot point to any evidence that Defendants were motivated by, for example,
animus against female or African-American employees. Nor has she
demonstrated any disparate treatment vis-ã-vis any other employee or group of
Given the lack of evidence of class-based discriminatory animus,
Maddox’s conspiracy claim cannot succeed. Section 1985 was not intended as
a “general federal tort law.” Farber, 440 F.3d at 135 (quoting Griffin et al. v.
Breckenridge et al., 403 U.S. 88, 101-02 (1971)). There is no sufficient evidence
of a relevant constitutional violation, and there is no evidence of a combination
in support of such a violation, either. To put it another way, the deficiencies in
Maddox’s constitutional claims are not cured by the addition of a conspiracy
Maddox has failed to support her constitutional claims under Section
1983 arid Section 1985 with evidence. Because no constitutional claim
survives, Maddox cannot recover attorney or expert fees under Section 1988.
Defendants will be granted summary judgment on Count 423
Wrongful Discharge (Count 5)
Maddox asserts an additional wrongful discharge claim in Count 5. No
statutory authority is cited for this count. I assume Maddox intends to assert a
common law claim. Because the LAD provides a remedy for wrongful discharge,
a common law claim may be pursued only if it would protect an interest “in
addition to or aside from those protected by the statutory action.” Dale v. Boy
Scouts of America, 734 A.2d 1196, 1219 (N.J. 1999), rev’d on other grounds,
530 U.S. 640 (2000) (internal quotations omitted); Catalane v. Gilian Instrument
Corp., 638 A.2d 1341, 1349 (N.J. Super. Ct. App. Div. 1341). Where the
common law claim is merely duplicative, the plaintiff may not pursue it in
addition to the LAD claim. Id. at 604-05.
Here, Maddox has not identified any interest independent of those
protected by LAD. Nor do I see any. I must therefore construe her common law
claim as being duplicative of her LAD claim, dismissed earlier. As discussed
above, Maddox has not provided sufficient evidentiary support for any type of
wrongful discharge claim. Count 5 fails as a matter of law.
Because I fmd that Maddox has not provided sufficient evidentiary support for
her constitutional claims, I do not reach the Newark Defendants’ qualified immunity
argument, or the issue of the City’s municipal liability for violations of Section 1983.
See Newark Def. Br. at 51; Monell v. New York City Dept. of Social Servs., 436 U.S. 658
6. Illegal Suspension or Dismissal Under N.J.S.A. 40A:9
Count 6 of the Complaint alleges that Maddox was illegally
violation of N.J.S.A. 40A:9-172(1) and (4). As a result, she says,
yment and lost
distraught and suffered “a loss of the prospective gain of emplo
income, and benefits.” Compi. Count 6 ¶j 1-3. Maddox does
does not create
discuss this count in her brief. At any rate, Section 40A:9-172
to recover salary
a separate cause of action. It merely permits an employee
to be illegal.
from the date of dismissal if her dismissal is otherwise found
e for such a
Because there is no finding of wrongful dismissal, the premis
recovery is lacking.
7. Negligent Hiring/Retention (Count 7)
In Count 7, Maddox asserts that Newark unlawfully hired
lted plaintiff and
Defendant Whittenburg, who “either harassed and assau
x asserts that
disregarded [her] complaints.” Compl. Count 7 ¶j 1-2. Maddo
tes at his prior
Whittenburg was accused of harassing employees or subordina
ue to do so. Id.
firm, and that Newark’s negligent hiring allowed him to contin
as a result of
Maddox states that she suffered “severe economic losses”
Newark’s negligence. Id. Count 7 ¶ 3.
An employer is potentially liable to a third party whose
or retaining an
proximately caused by the employer’s negligence in hiring
508, 514 (N.J.
employee who is unfit for the job. DiCosala v. Kay, 450 A.2d
yer knew or had
1982). The cause of action has two elements: (1) that the emplo
reason to know of the “particular unfitness, incompetence
n that such
attributes of the employee and could reasonably have foresee
qualities created a risk of harm to other persons,” and (2) that
ss, or dangerous
employer’s negligence, the employee’s “incompetence, unfitne
characteristics proximately caused the injury.” Id. at 516. To
the injury must be within a general “zone of risk” created by
conduct. Id. at 517.
Maddox contends that Newark should have known about Whitte
firm. Opp. at 40
discipline by his former employer, the Porzio Bromberg law
(citing Ex. 5). She alleges that he was admonished, but
a firm holiday
regarding inappropriate comments to two female attorneys at
it would have
party. If Newark had done its “due diligence,” says Maddox,
discovered the incident in a background check. Opp. at 40-41.
Assuming any incident at Porzio Bromberg occurred, there
is no evidence
that Newark knew or should have known about it. The
City did perform a
background check before hiring Whittenburg. New
ark had no access to
confidential, internal Porzio Bromberg documents,
and could only rely on the
firm’s recommendation. Chandy received a “highly posi
from Vito Gagliardi, Esq., as well as from retired New
Jersey Supreme Court
Justice James H. Coleman, Jr. DSMF
¶j 145-46. Cf Lingar v. Live-in
Companions, Inc., 692 A.2d 61, 65-66 (N.J. Super. Ct.
App. Div. 1997) (finding
triable issue where employer prior drug convictions
were a matter of public
And even assuming that the incident occurred and
that Newark could
have learned about it, Maddox’s claim fails the fores
eeability test. A plaintiff
must show that the person’s prior conduct somehow
foreshadowed the actual
harm she suffered. See DiCosala, 450 A.2d at 416-17.
Maddox does not assert
that she (or anyone else) was sexually harassed by Whi
ttenburg. She has failed
to put forth any evidence that Whittenburg discrimin
ated against her on any
basis remotely related to the alleged incident at Porzio.
In short, the conduct
alleged by Maddox is not within the zone of risk of Whi
ttenburg’s alleged prior
In sum, Maddox has not introduced evidence that
the City knew or
should have known of Whittenburg’s alleged unfit
ness (which remains
unproven), and she also fails to link that alleged
unfitness to her particular
injury. There is no issue of material fact to be tried,
and summary judgment
will be granted in favor of the Defendants on Count
The Defendants have carried their burden under
Fed. R. Civ. P. 56 of
showing that there is no genuine dispute of material fact
as to the causes of
action alleged in the Complaint. Accordingly, summary
judgment is appropriate
on all counts and will be entered in favor of the Defendan
An appropriate order will be entered in accordance with
Dated: September 26, 2014
Hon. Kevin McNulty
United States District Judg
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