ROBINSON v. HORIZON BLUE CROSS BLUE SHIELD OF NEW JERSEY et al

Filing 133

OPINION fld. Signed by Judge Madeline C. Arleo on 7/30/15. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

KENNETH E. ROBINSON, JR.,

Civil Action No. 12-2981

Plaintiff,
V.

OPINION
HORIZON BLUE CROSS BLUE
SHIELD OF NEW JERSEY, Ct at.,
Defendants.

ARLEO, UNITED STATED DISTRICT JUDGE

I.

INTRODUCTION

Plaintiff, a short term employee of defendant Horizon Blue Cross-Blue Shield of New
Jersey (“Horizon”), filed this action claiming gender (male) and race (African American)
discrimination against Horizon and his supervisors. Defendants claim that they terminated
Plaintiff because of ongoing performance issues and repeated unprofessional interactions with
co-workers and others.

Because Plaintiff cannot demonstrate that the reason given for his

termination were pretextual, he cannot meet his burden under the McDonnell Douglas
framework. Accordingly Defendants’ motion for summary judgment is GRANTED.’
II.

FACTUAL BACKGROUND
2

In addition, Plaintiff has sought leave to file a sur-reply in further opposition to
Defendants’ motion for summary judgment. $ç Dkt. No. 129. The Court has considered this
submission in its analysis, but still concludes that Plaintiff has failed to raise any disputed issues
of material fact that would preclude summary judgment.
2

After Defendants moved for summary judgment, Plaintiff filed a motion to preclude
summary judgment pursuant to Rule 5 6(d), in which Plaintiff argued that he could not present or
rebut facts essential to justify its opposition. $ Dkt. No. 122. Some of the discovery

3
Plaintiff, an African-American male, was hired by Horizon on August 2, 2010 after
working there as an independent contractor. Plaintiff, who graduated from law school but is not
licensed to practice in this jurisdiction, represents himselfpro Se. Def. Statement ¶J 6-8.
At Horizon, Plaintiff’s title was Vendor Outsourcing Specialist. Id.

¶

8. In this role,

Plaintiff was required to manage the relationship between Horizon and its IT service vendors.
Ms. White, an African-American female, hired Plaintiff and initially

Krause Cert., Ex. 8.
supervised him.

Id.

¶

2.

After a departmental reorganization in 2011, Ms. Concannon, a

Caucasian female, became Plaintiff’s supervisor. Id.

¶ 3; White Deci. ¶ 8.

While at Horizon, Plaintiff was involved in a number of disputes with other Horizon
employees and third parties.

See Def. Statement

¶J

11-15; see, e.g., Krause Cert., Ex. 9.

Robinson Dep. at 75:19-77:6, 17l:1-3. A number of these incidents involved Plaintiff and
members of the Sourcing Department, including Deborah Collins, Doug Rasmussen, Susan
Berkenbush, and Ms. Meza.

Def. Statement

¶

In one incident, on November 9, 2010,

6.

Plaintiff had a verbal altercation with Ms. Meza.

See Def. Statement

¶

12.

According to

Plaintiff, although Ms. Meza yelled at him and he did not raise his voice, Ms. Meza nonetheless
complained to her supervisors about the incident.

j

¶

12.

While Plaintiff did not

referenced in his motion was sought during the discovery period but denied by the Magistrate
Judge, whose order was affirmed by the District Court. Other discovery was allowed but not
pursued by Plaintiff during discovery. See Dkt. No. 123-1, Ex. D. Therefore, and for the
reasons set forth herein, Plaintiff’s motion is denied.
The exhibits Plaintiff submitted in opposition to Defendants’ motion further evince his
unprofessional communications with coworkers, see, e.g., D051839, D003409, D031246, and
vendors, see, e.g., D034356-57, D0542465, D009822, D009969, D038331, D034356. See also
Robinson Dep. at 77:16-18, 79:13-17 (Plaintiff admitting he has no basis to believe that a third
party vendor’s complaints about Plaintiff were motivated by any racial animus or gender bias).
While Plaintiff, in his sur-reply, attaches emails between himself and other vendors that
demonstrate a healthy working relationship, the fact that Plaintiff was able to get along with
some vendors on some occasions does not contradict the fact that Plaintiff did, on numerous
occasions, demonstrate unprofessionalism in his communications.
‘

2

contemporaneously claim that Ms. Meza acted with any racial animus, he now claims that “she
was feeding into the stereotype of the angry black man.” Robinson Dep. at 168:22-169:13. As a
result of Ms. Meza’s complaints, Plaintiff was directed to leave work on Ms. Berkenbush’s desk
instead of giving it to the Sourcing Department contract specialists. Def. Statement ¶ 12.
Human Resources often became involved when these issues occurred. For example, in
Summer 2011, Ms. Wright-Gibson met with Plaintiff after Plaintiff asked Susan Berkenbush, the
Director supervising the Contract Specialists with whom Plaintiff was fighting, “how would you
feel if I played the race card?” P1. Statement of Facts, Ex. 6 at D005418. Plaintiff then met with
Ms. Wright-Gibson, an African-American woman who works in Horizon’s HR department.
Wright-Gibson Deci.

¶J

1-4; Def. Statement

¶ 4.

During this meeting, Plaintiff told Ms. Wright-

Gibson he had not experienced any racism while employed at Horizon and made no mention of
gender discrimination. Wright-Gibson Deci.

¶ 4.

Plaintiff admits to performance deficiencies during his short employment with Horizon.
For example, Plaintiff failed to properly institute version control for draft contracts. Robinson
Dep. at 178:22-180:18, 269:1-4. Additionally, Plaintiff often exceeded his responsibilities. J.d.
at 183:4-8, 269:5-270:1. This led to tension and further hostility between Plaintiff and his co
workers. Id.; Def. Statement

¶

11, 13, 14. While Plaintiff’s 2010 Annual Review was average,

Plaintiffs Mid-Year 2011 Review reflected Plaintiffs technical errors and conflicts with
employees and vendors. Def. Statement ¶ 16; Krause Cert., Ex. 15.
During Plaintiffs employment, several of his requests to work from home were denied.
Horizon’s telecommuting policy allowed employees who had worked at Horizon for at least six
months and whose performance exceeded expectations to be considered, on a case-by-case basis,

Again, exhibits Plaintiff submitted in opposition confirm his performance deficiencies.
See, e.g., D035432-33.
3

to vork remotely. Def. Statement

¶

17. Plaintiff first requested to work from home several days

a week when Ms. White was still his supervisor. Id.

¶

18. This request was denied, but Ms.

White permitted Plaintiff to work from home on several occasions.

Id.

Shortly after Ms.

Concannon became Plaintiff’s supervisor, Plaintiff again contacted Ms. White to renew his
request to work from home.

¶ 22.

Ms. White forwarded the request to Ms. Concannon for

her input. Id. After not receiving a response during the business day, Plaintiff emailed Ms.
Concannon directly. Id The following day at 8:31 a.m., Ms. White responded, stating that Ms.
Concannon had yet to make a decision, but would likely deny the request until Ms. Concannon’s
transition had “settle{dj down.” Krause Cert., Ex. 18. Plaintiff responded eight minutes later,
stating that he was seeking “a reasonable timeframe” for Ms. Concannon’s decision. j At 8:50
a.m., Ms. White responded, again asking Plaintiff to provide time for Ms. Concannon respond to
the request. Id. Four minutes later, Plaintiff emailed Ms. White and Ms. Concannon, demanding
a meeting with Ms. Concannon. Id. Ms. White responded, yet again requesting that Plaintiff be
patient and reminding him that Ms. Concannon and the IT department were still undergoing a
transition. Id.
On October 5, 2011, Ms. Concannon denied Plaintiff’s request based upon his
unfavorable 2011 Mid-Year Review, which Ms. White had prepared, and Ms. Concannon’s
recent transition to her new position.
Concannon Decl.

Krause Cert., Ex. 19; Concannon Dep. 22:22-23;

¶ 36

6 Plaintiff points out that another employee in the department, Parvin Behdashti, was
allowed to work from home. The evidence demonstrates, however, that this alternative work
arrangement was made before Ms. Concannon took over the department. $ç Concannon Dep.
at 29:11-14. Additionally, Plaintiff’s assertions that he was treated differently than Ms.
Behdashti are contradicted by Ms. Behdashti’s excellent performance evaluations.
Krause
Reply Cert., Exs. 1-2.
4

On December 8, 2011, Plaintiff was placed on Written Performance Counseling by Ms.
Concannon, in consultation with Ms. White and Human Resources. See Krause Cert., Ex. 20;
Concannon Dep. at 34:17-20.

Ms. Concannon based her decision on Plaintiff’s failure to

demonstrate improvement with the accountability and communication issues identified in his
Mid-Year Review. Krause Cert., Ex. 20. The Written Performance Counseling provided four
examples of Plaintiff’s performance issues and mandated that he immediately take ownership of
his actions and ensure that all communications be professional and comprehensive. Id.
On December 13, 2011, Plaintiff wrote a five-page rebuttal to Ms. Concannon.

See

Krause Cert., Ex. 22. In this document, Plaintiff invoked procedural due process and the United
States Constitution.

It also contained a prayer for relief. Id. Human Resources investigated

Plaintiff’s rebuttal, but found that Plaintiff’s placement on Written Performance Counseling was
appropriate. Wright-Gibson Deci.

¶ 5.

In mid-December, Plaintiff received his 2011 Annual Review, which was prepared by
Ms. White. Def. Statement ¶ 29. Again, Plaintiff received a number of unfavorable reviews. Id.
Plaintiff asserts that his negative review was a result of his complaints to Human Resources
about being placed on Written Performance Counseling. Id.

Shortly thereafter, on December

22, 2011, Plaintiff again complained to Human Resources, this time alleging gender
discrimination.

Krause Cert., Ex. 24.

Plaintiff did not assert any allegations of racial

discrimination at that time. Id.
Also on December 22, 2011, Ms. Concannon directed Plaintiff to begin preparing weekly
status reports, which they would review the following week. Krause Cert., Ex. 25. Plaintiff
again went to Human Resources, questioning whether this requirement was consistent with being
placed on Written Performance Counseling. Krause Cert., Ex. 26. On the same day he spoke

5

with Human Resources, Plaintiff sent an email to Ms. White, stating, “I pray I live long enough
to show my excellent backhand.” Id. Plaintiff claims this was not a physical threat, but instead a
reference to a number of tennis conversations Plaintiff had with Ms. White. Def. Statement ¶ 35.
When Ms. White forwarded this message to Ms. Concannon, however, Ms. White stated that she
“can only guess what he means by this.”

Krause Cert., Ex. 26.

Ms. Conncanon was

uncomfortable with Plaintiff’s email and forwarded it to Human Resources. Id.
On January 4, 2012, Plaintiff sent a “Complaint for Adverse Treatment / Disparate
Treatment.

.

.

Hostile Work Environment / Retaliation” to Human Resources. See Krause Cert.,

Ex. 27. Tn the document, Plaintiff claimed Ms. Concannon’s December 22, 2011, directive was
discriminatory and/or retaliation for Plaintiffs prior complaints to Human Resources.

Id.

Plaintiff claimed he was being improperly “portrayed as an angry (Black) man” and was subject
to gender discrimination. Id. Later that month, Plaintiff met with Santo Barravecchio, another
Human Resources employee.

Def. Statement.

¶

39.

Plaintiff felt Mr. Barravecchio was

“friendly, he was being receptive, nonjudgmental, non-accusatory.
problem.

.

.

.“

.

.

he was trying to resolve a

Robinson Dep. at 265:6-12. Plaintiff left the meeting “feeling better leaving than

entering.” j at 265 :24.
Throughout January and February 2012, Plaintiff continued to meet with Ms. Concannon
for performance counseling.

Plaintiff challenged Ms. Concannon’s criticisms, believed Ms.

Concannon was unfit to judge his work, and continued to assert that he had no communication
problems.

Robinson Dep. at 266:16-268:3.

During this time, Plaintiff continued to make

additional allegations of unfair treatment, which Human Resources investigated and found to be
meritless. Wright-Gibson Decl.

¶ 6.

6

On February 15, 2011, Plaintiff filed a charge (the “Charge”) with the Equal Employment
Opportunity Commission (“EEOC”) alleging race and gender discrimination beginning on
December 8, 2011, the date he received his Written Performance Counseling. Def. Statement
43. Plaintiff has never amended the Charge nor filed a new charge.

¶

I4.

On March 9, 2012, Horizon terminated Plaintiff’s employment. Def. Statement
This decision was made by Ms. Concannon, in consultation with Ms. Wright-Gibson.

¶ 42.
Id.

Defendants assert this decision was based upon Plaintiff’s performance/communications issues
and his failure to take ownership of his behaviors.
III.

iL

STANDARD OF REVIEW

Pursuant to Fed. R. Civ. P. 56(c), a motion for summary judgment will be granted if the
pleadings, depositions, answers to interrogatories, and admissions on file, together with the
affidavits, if any, show that there is no genuine dispute as to any material fact and that the
moving party is entitled to judgment as a matter of law.

$ Anderson v. Liberty Lobby. Inc.,

477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). “[S]ummary
judgment may be granted only if there exists no genuine issue of material fact that would permit
a reasonable jury to find for the nonmoving party.” Miller v. md. Hosp., 843 F.2d 139, 143 (3d
Cir. 1988). All facts and inferences must be construed in the light most favorable to the nonmoving party. Peters v. Del. River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994).
IV.

ANALYSIS

a. Discrimination

Plaintiff’s Title VII and New Jersey Law Against Discrimination (“NJLAD”)
discrimination claims are both governed by the burden-shifting framework articulated in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). See Smith v. Twp. of E. Greenwich,

7

519 F. Supp. 2d 493, 506 (D.N.J. 2007), affd, 344 F. App’x 740 (3d Cir. 2009). Under this
framework the plaintiff must first prove by a preponderance of the evidence a prima facie case.
McDonnell Douglas, 411 U.S. at 802—03. Once the plaintiff carries his burden, the burden shifts
to the defendant to articulate some legitimate non-discriminatory reason for the adverse
employment action. Id. Finally, if the employer carries its burden, the burden shifts back to the
employee to show that the defendant’s stated reasons are mere pretext and not worthy of
credence. Id.
For a discrimination/disparate treatment claim, a plaintiff establishes a prima fade case
by demonstrating: “he/she (1) is a member of a protected class; (2) was qualified for the position;
(3) suffered an adverse employment action; and (4) the adverse employment action was made
under circumstances that give rise to an inference of unlawful discrimination.” Rodriguez v.
Nat’l R.R. Passenger Corp., 532 F. App’x 152, 153 (3d Cir. 2013). Defendants do not dispute
that Plaintiff was a member of protected classes (male and African-American) or that Plaintiff
7
was qualified for the position.

Here, while Plaintiff’s claim is for reverse gender discrimination, such theory of
liability under Title VII is actionable. Besko v. New Jersey Juvenile Justice Comm’n, 558 F.
App’x 295, 298 (3d Cir. 2014) (“In ladimarco v. Runyon, 190 F.3d 151 (3d Cir. 1999), we
clarified, in the context of a reverse discrimination claim, that ‘all that should be required to
establish a prima facie case in the context of ‘reverse discrimination’ is for the plaintiff to present
sufficient evidence to allow a fact finder to conclude that the employer is treating some people
less favorably than others based upon a trait that is protected under Title VII.”). While reverse
gender discrimination is also a viable theory under NJLAD, a male plaintiff must, in addition to
the typical prima facie elements, “must substantiate that the background circumstances support
the suspicion that the defendant is the unusual employer who discriminates against the majority
in order to meet the first element of his prima facie case.” Treusch v. Ctr. Square Supermarket,
LLC, 921 F. Supp. 2d 336, 350 (D.N.J. 2013) reconsideration denied, No. 11-4874, 2013 WL
1405031 (D.N.J. Apr. 5, 2013). Here, Defendants do not offer any challenges directed at the
reverse-discrimination burden and therefore the Court assumes for the purposes of the motion
that Plaintiff has demonstrated that Horizon is such an unusual employer.
8

Defendants argue that a number of the employment decisions at issue do not constitute
actionable “adverse employment actions.” For purposes of a disparate treatment claim, “[am
adverse employment action is one which is serious and tangible enough to alter an employee’s
compensation, terms, conditions, or privileges of employment.” Cardenas v. Massey, 269 F.3d
251, 263 (3d Cir. 2001) (quotation and citation omitted). The Court agrees with Defendants that
the denial of Plaintiff’s request to work from home is not an adverse employment action. $ç
Seldon v. Nat’l R.R. Passenger Corp., No. 05-4165, 2007 WL 3119976, at *3 (E.D. Pa. Oct. 24,
2007) (“The United States Court of Appeals for the Third Circuit has not addressed the precise
question of whether denial of ‘work-from-home’ status is an adverse employment action, but
district courts in other jurisdictions have consistently held that it is not.”). The Court also agrees
that Plaintiff’s placement on Written Performance Counseling and his poor performance reviews
do not constitute adverse employment actions.

$ Reynolds v. Dep’t of Army, 439 F. App’x

150, 153 (3d Cir. 2011) (“We note that a likely consequence of allowing suits to proceed on the
basis of a [performance improvement plan] would be more naked claims of discrimination and
greater frustration for employers seeking to improve employees’ performance.”); El-Sioufi v. St.
Peter’s Univ. Hosp., 382 N.J. Super. 145, 176 (App. Div. 2005) (“[A] negative employment
evaluation, unaccompanied by a tangible detriment, such as a salary reduction or job transfer, is
insufficient to rise to the level of an adverse employment action.”).

Plaintiff does claim,

however, that he was terminated, which is an adverse employment action.

Thus, Plaintiffs

termination satisfies prong three of his primafacie showing.
8

8

Because Plaintiff did not file a charge of discrimination with the EEOC regarding his
termination, Plaintiffs Title VII claim for unlawful termination must be dismissed for failing to
exhaust his administrative remedies. See Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101,
109-15 (2002). As noted below, however, even if Plaintiff could pursue his Title VII claim on a
“continuing violation theory,” Plaintiff’s Title VII claim substantively fails at step three.
9

Defendants also argue that Plaintiff has failed to make a prima facie showing because he
has not shown that any adverse employment action was made under circumstances giving rise to
an inference of discrimination. The Court need not reach these arguments, however, because
even if Plaintiff met his prima fade burden, summary judgment must be granted for Defendants
as Plaintiff has failed to carry his burden at step three of the McDonnell Douglas analysis.
When an employer articulates a legitimate, non-discriminatory basis for termination, a
plaintiff must then demonstrate that this reason is mere pretext. $çç Hancox v. Lockheed Martin
Tech. Servs., No, 04-6104, 2007 WL 1796248, at *7 (D.N.J. June 21, 2007). “Pretext cannot be
established based on speculation and mere conclusory allegations.”

Jordan v. Allgroup

Wheaton, 218 F. Supp. 2d 643, 651 (D.N.J. 2002), affd sub nom., 95 F. App’x 462 (3d Cir.
2004). “To make a showing of pretext, the plaintiff must point to some evidence, direct or
circumstantial, from which a factfinder could reasonably either (1) disbelieve the employer’s
articulated legitimate reasons; or (2) believe that an invidious discriminatory reason was more
likely than not a motivating or determinative cause of the employer’s action.” Burton v. Teleflex
Inc., 707 F.3d 417, 430 (3d Cir. 2013) (citation and quotation omitted).

“The plaintiff’s

evidence, if it relates to the credibility of the employer’s proffered justification, must demonstrate
such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the
employer’s proffered legitimate reasons for its action that a reasonable factfinder could rationally
find them unworthy of credence.” Id.
Here, Defendants have set forth a legitimate, nondiscriminatory reason for all of the
employment actions about which Plaintiff complains. Specifically, Defendants assert, and have
provided documents evidencing, that: (1) Plaintiff’s requests to work from home were initially
denied because of his performance issues and the short duration of his employment and were

10

later denied because of Plaintiffs performance and Ms. Concannon’s desire to not make any
employment decisions until she had settled-in to her new role; (2) Plaintiffs performance
reviews and placement on Written Performance Counseling reflect Plaintiff’s self-admitted
technical performance issues and his frequent unprofessional interactions with other Horizon
employees and third-party vendors; and (3) Plaintiffs termination resulted from Plaintiffs
continuing job performance issues. See Casseus v. Elizabeth Gen. Med. Ctr., 287 N.J. Super.
396, 405 (App. Div. 1996). Thus, the burden shifts to Plaintiff to establish this justification is
pretextual.
In response, Plaintiff offers only his own subjective beliefs and speculations, which are
insufficient to defeat summary judgment. Plaintiff admits to his technical errors in completing
his contract reviews and the record is replete with examples of Plaintiffs lack of professionalism
when communicating with other Horizon employees and third-party vendors. In fact, the emails
Plaintiff relies upon in his opposition only further demonstrate that Plaintiffs unsatisfactory
reviews, placement on Written Performance Counseling, and termination were not pretextual.
While Plaintiff argues that his job performance should be viewed as satisfactory based upon
other considerations, such as productivity, “pretext turns on the qualifications and criteria
identified by the employer, not the categories the plaintiff considers important.” Amato v. Verint
Sys., Inc., No. 04-3489, 2007 WL 604804, at *5 (D.N.J. Feb. 16, 2007) (quoting Simpson v. Kay
Jewelers, 142 F.3d 639, 642 (3d Cir. 1998)). Additionally, Plaintiffs claim that other coworkers
were treated differently fails because Plaintiff has failed to demonstrate that the circumstances of
these allegedly disparate treatments are comparable. For example, Plaintiff has not demonstrated
that any other employees were not terminated after committing the same errors in version control
or being involved in multiple instances of hostile communication.

11

$ Jordan, 218 F. Supp. 2d at

652’ (“However, because there is no evidence in the record that any of the individuals involved in
these workplace disputes had a disciplinary record comparable to his own, this anecdotal
evidence that past quarrels between white employees resulted in less severe punishment for those
involved fails to support an inference of intentional racial discrimination.”). Similarly, while
9
Plaintiff argues that another contract specialist, Douglas Rasmussen, was not disciplined for
sending an unprofessional email, Plaintiff does not know if anyone complained about the
message or if the issue had otherwise been raised to a supervisor. See Def. Statement

¶ 38.

As Plaintiff has offered no evidence to support his claim of race and gender
discrimination and that Defendants’ justifications are mere pretext, summary judgment must be
granted for Defendants. Jordan, 218 F. Supp. 2d at 651; see also Parikh v. United Parcel Serv.,
IncNo. 09-1652, 2011 WL 5193104, at *5 (D.N.J. Oct. 31, 2011), affd sub nom., 491 F. App’x
303 (3d Cir. 2012); Habib v. Urban Outfitters, Inc., No. 03-1561, 2004 WL 765119, at *7 (E.D.
Pa. Apr. 1, 2004).
b. Retaliation
Again, the McDonnell Douglas framework governs the Court’s analysis.

To make a

prima fade case of retaliation, a plaintiff must demonstrate: “(1) protected employee activity; (2)
adverse action by the employer either after or contemporaneous with the employee’s protected
activity; and (3) a causal connection between the employee’s protected activity and the
employer’s adverse action.” Marra v. Philadelphia Hous. Auth., 497 F.3d 286, 300 (3d Cir.
2007). Here, although it is not clear from the Second Amended Complaint or his papers filed in

‘?Similarly, Plaintiffs assertions that he was treated differently than Parvin Behdashti are
contradicted by Ms. Behdashti’s excellent performance evaluations. See Krause Reply Cert.,
Exs. 1-2. Additionally, even if Ms. Behdashti was treated differently because Ms. Concannon
had hired her, this is not an actionable basis for a discrimination claim. See Parks v. Rumsfeld,
119 F. App’x 382, 385 (3d Cir. 2005).
12

opposition to summary judgment, plaintiff seems to claim that he was “retaliated against” for: (1)
complaining to Human Resources in December 2011; (2) for requesting to work from home; and
(3) filing his EEOC complaint. See Am. Compi.

¶ 86; P1.

Opp’n Br. at 5-6, 16.

Assuming that

such actions constitute protected employee activities and are causally related to actionable
10
adverse actions, the Court concludes that summary judgment must be granted for Defendants as
11
Plaintiff has failed to rebut Defendants’ legitimate, non-discriminatory justifications for the
employment actions taken.

$ Section III.A supra.

c. Hostile Work Environment
“To establish a hostile work environment claim against an employer, a plaintiff must
prove the following: (1) the employee suffered intentional discrimination because of their sex [or
race]; (2) the discrimination was pervasive and regular; (3) the discrimination detrimentally
affected the p1aintiff (4) the discrimination would detrimentally affect a reasonable person of the
same sex [or race] in that position; and (5) the existence of respondeat superior liability.”
Huston v. Procter & Gamble Paper Products Corp., 568 F.3d 100, 104 (3d Cir. 2009); Sgro v.
Bloomberg L.P., 331 F. App’x 932, 941 (3d Cir. 2009) (“New Jersey courts treat hostile work
environment claims under the NJLAD the same as the Supreme Court treats hostile work
environment actions under Title VII.”).

“To assess whether a work environment is hostile,

courts assess factors which include ‘the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee’s work performance.” Bull v. Target Corp., No. 14Any actions taken by decisionmakers before they were aware that Plaintiff engaged in
the protected activity are not actionable. See Sanchez v. Sunguard Availability Servs., 362 F.
App’x 283, 287-88 (3d Cir. 2010).
10

The standard for “adverse employment action” is lower in the context of retaliation
claims. McKinnon v. Gonzales, 642 F. Supp. 2d 410, 426 (D.N.J. 2009). The Court assumes
that all of the employment decisions of which Plaintiff complains satisfies this standard.
13

6838, 2015 WL 1266792, at *3 (D.N.J. Mar. 17, 2015) (quoting Harris v. Forklift Sys., 510 U.s.
17, 23 (1993)).
“Under the first prong, a plaintiff must show that her protected characteristic was a
‘substantial factor’ in harassment, and that but for that protected characteristic, ‘she would not
have been treated in the same manner.” Palma v. Volunteers of Am., No. 04-919, 2006 WL
328352, at *6 (ED. Pa. Feb. 9, 2006) (quoting Aman v. Cort Furniture Rental Corp., 85 F.3d
1074, 1081 (3d Cir. 1996)). Here, Plaintiff has failed to make such a showing. While many of
these emails Plaintiff attaches to his opposition demonstrate other coworkers’ frustration and
resentment, none of these emails reference Plaintiff’s race or gender, imply any bias, or suggest a
discriminatory motive. Instead, record shows that the only individual who referenced Plaintiff’s
gender and race during Plaintiff’s employment was Plaintiff. Plaintiff’s other vague allegations
about the way female employees bonded together, statements made by Ms. White, the screaming
incident between Plaintiff and Ms. Meza, insufficient acknowledgment of Plaintiff’s
accomplishments, arid his weekly counseling sessions do not suggest any harassment Plaintiff
suffered was motivated by Plaintiff’s race or gender.
Even assuming the interactions upon which Plaintiff bases his claims were motivated by
Plaintiff’s race or gender, the Court finds that they were not sufficiently severe and pervasive to
establish aprimafacie hostile work environment. “To be actionable, alleged harassment must be
both subjectively and objectively detrimental and severe or pervasive.” Palma v. Volunteers of
Am., No. 04-9 19, 2006 WL 328352, at *7 (E.D. Pa. Feb. 9, 2006). “This analysis is based upon
the totality of the circumstances, including “the frequency of the discriminatory conduct; its
severity; whether it is physically threatening or humiliating, or a mere offensive utterance; and
whether it unreasonably interferes with an employe&s work performance.”

14

Here, none of the

statements at issue were severe, were physically threatening or truly humilating, or interfered
with Plaintiff’s work performance. Furthermore, many of the allegedly objectionable statements
cannot serve as a basis for a hostile work environment claim because they were contained in
private emails between other coworkers that Plaintiff only became aware of through discovery.
Toth v. Cal. Univ. of Penn., 844 F. Supp. 2d 611, 634 n.8 (W.D. Pa. 2012); see also Hurley v.
Atl. City Pol. Dept., 174 F.3d 95, 116 (3d Cir. 1999). As to the handful of potentially actionable
comments upon which Plaintiff bases his claim, they are too infrequent to constitute a hostile
work environment. See Carver v. City of Trenton, 420 F.3d 243, 263 (3d Cir. 2005); Hargrave v.
County of Atlantic, 262 F. Supp. 2d 393, 413 (D.N.J. 2003). Thus, the Court finds that, under
the totality of the circumstances, Plaintiff has failed to raise a triable claim of hostile work
environment. Summary judgment is granted for Defendants.
d. Individual Liability
To the extent Plaintiff seeks to bring claims against individuals under Title VII, summary
judgment is granted for Defendants because individuals cannot be held individually liable under
that Act. Jones v. Jersey City Med. Ctr., 20 F. Supp. 2d 770, 772 (D.N.J. 1998). Plaintiff’s
NJLAD claims for individual liability fail because Plaintiff’s primary claims against Horizon
fail. Murray v. Beverage Distrib. Ctr., Inc., 757 F. Supp. 2d 480, 488 (D.N.J. 2010); Haddix v.
Camden Cnty. Youth Det. Ctr., No. 13-1594, 2015 WL 3755023, at *6 (D.N.J. June 16, 2015).
e. Plaintiff’s Remaining Claims
Plaintiff has also brought common law claims for negligent supervision, breach of the
covenant of good faith and fair dealing, intentional infliction of emotional distress, fraud, deceit,
breach of fiduciary duty, and negligent training. These claims are preempted.

Bull v. Target

Corp., No. 14-6838, 2015 WL 1266792, at *3 (D.N.J. Mar. 17, 2015) (“The New Jersey

15

Appellate Division has held that the New Jersey State Legislature intended for the NJLAD to
‘encompass all those claims and damages previously available at common law.”) (quoting jpJc
v. Boy Scouts of Am., 308 N.J. Super. 516, 543 (App. Div. 1998), affd, 160 N.J. 562, 734
(1999), rev’d on other grounds, 530 U.S. 640 (2000)); Kuilan v. Sodexo Inc., No. 11-4567, 2012
WL 1964492, at *8 (D.N.J. May 31, 2012); Toscano v. Borough of Lavallette, No. 04-4412,
2006 WL 1867197, at *9 (D.N.J. June 30, 2006); DiMare v. Metlife Ins. Co., No. 07-4268, 2008
WL 2276007, at *3 (D.N.J. June 2, 2008), affd, 369 F. App’x 324 (3d Cir. 2010). Therefore,
summary judgment is granted for Defendants on these claims.
V.

CONCLUSION

Plaintiff’s Rule 56(d) motion is denied. Defendants’ motion for summary judgment is
granted on all counts. This matter is therefore dismissed and the case is closed. An appropriate
order shall issue.

/s Madeline Cox Arleo
Hon. Madeline Cox Arleo
United States District Judge

16