BRIGANDI v. JOHN WILEY & SONS, INC. et al

Filing 37

OPINION. Signed by Judge Madeline C. Arleo on 7/1/2015. (ld, )

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EVELYN BRIGAND!,
Civil Action No. 13-5193
P!aintff
v.
OPINION
JOHN WILEY & SONS, INC., et al.,
Defendant.
ARLEO,

UNITED STATES DISTRICT JUDGE

This matter comes before this Court on Defendants John Wiley & Sons, Inc. (“Wiley”),
Juanita Thompson, Donna Ketler, and Sesha Bolisetty’s (collectively, “Defendants”) motion for
summary judgment [Dkt. No. 301. This motion is decided without oral argument.

S Fed.

R.

Civ. P. 78. For the reasons set forth herein, Defendants’ motion is GRANTED.
I.

FACTS

Plaintiff filed this action against Defendants alleging violations of the New Jersey Law
Against Discrimination (“NJLAD”), the New Jersey Family Leave Act (“NJFLA”), and the
federal Family Medical Leave Act (“FMLA”).

Compl.

¶

1.

Plaintiff claims she was

terminated from her temporary position as a Media Specialist because of her pregnancy and/or
her anticipated maternity leave. Id.

¶ 2.

In 2005, Plaintiff began working for Wiley, a global publishing company.
Statement
unit.

¶

¶J

Defs.

1, 12. Plaintiff worked in the Media Group within the Global Education business

13. Plaintiff resigned from Wiley in May 2007, but returned to the Media Group a

month later. Id.

¶J

15-16. In 2010, some members of the Media Group, including Plaintiff, were

transferred to the Content Management Group, which was managed by Defendant Donna Ketler.
Id.

¶11 28,

29. Following another reorganization in July 2011, Defendant Juanita Thompson was

transferred to the Content Management Group.

¶J

31-32. As of July 2011, Plaintiff began

reporting to Ms. Thompson, who then reported to Ms. Ketler.

¶J 34-3 5.

The First Temporary Staffing Reductions
In 2011, Ms. Ketler, at the request of her supervisor, Ann Berlin, begin reviewing
temporary employee staffing and costs because temporary employees were paid more than their
full-time equivalents.’ Ketler Cert.

¶

11; Defs. Statement ¶ 17. On October 19, 2011, Ms. Ketler

sent an e-mail to Ms. Berlin advising that the company was spending approximately $94,000 per
month on temporary employees.

P-25, attached as Ex. B to Thompson Cert.

On November 30, 2011, Ms. Ketler emailed a PowerPoint presentation to Ms. Berlin, in
which Ms. Ketler proposed reducing salary costs, in part by converting certain temporary
P-26, attached as Ex. B to Thompson Cert.

employee positions to full-time positions.

Plaintiff was one often temporary employees identified in the document. j4
On February 6, 2012, Ms. Ketler sent two emails proposing actions to take regarding the
ten temporary employees listed in the November 2011 PowerPoint.

$ Ex.

1 to Ketler Cert. In

both documents, it was proposed that Plaintiff be terminated. Id.
For the next few months, Ms. Ketler and Ms. Berlin continued to revise the proposed
cost-reduction and employee terminations. $çç Ex. 2 to Ketler Cert (“We would like to start
While Plaintiff now argues she was not a temporary employee, the Court disagrees.
Plaintiff previously acknowledged her temporary status in writing and has recognized that Wiley
Defs. Statement ¶J 18, 19; P1. Dep. Tr.,
considered her to be a temporary employee.
attached as Ex. D to Thompson Cert. at 26:7-21, 33:7-34:19; Ex. 4 to Ketler Cert. (recognizing
that some temporary employees had, as of 2012, been working for Wiley for over five years).

2

bringing some of the freelancers in as full-time staff and transition most of the others out.”); Ex.
3 to Ketler Cert. The proposed plan for Plaintiff remained termination. j On May 7, 2012,
senior management approved “the reorganization and conversation of freelance to full-time
employees.” Ex. 4 to Ketler Cert.
As part of Ms. Ketler’s plan, two temporary Media Specialists were to be converted into
full-time employees. See Defs. Statement ¶J 51, 55. Therefore, in May 2012, Ms. Ketler sent an
email to seven of the eight remaining temporary employees, including Plaintiff, encouraging
2
them to apply for these positions. Defs. Statement

¶

55; see also P-18, attached as Ex. B to

Thompson Cert. Plaintiff then met with Ms. Ketler to discuss these full-time positions. Defs.
Statement

¶

58.

Ms. Ketler testified that, during this conversation, she recommended that

Plaintiff apply for these positions because she could not “guarantee that temporary jobs will still
be around” and she would not be able to inform Plaintiff if her job was going to be eliminated.
Def. Statement

¶J 59-61.

Plaintiff does not deny that Ms. Ketler made these statements; instead

Plaintiff testified at her deposition that she did not remember if these statements were made. P1.
Statement
was less.

¶J

59-61. Plaintiff chose not to apply for one of these positions because the salary

Brigandi Decl.

temporary employees.

¶

20.

These full-time positions were ultimately offered to two

$ç Ketler Supp. Cert.

¶

6.

One temporary employee accepted the

position, but the other declined.
The June 5, 2012, Reduction
On June 5, 2012, Ms. Ketler proposed a second round of temporary-staff cuts to realize
additional savings and because she had sufficient full-time staff to handle the temporary
employees’ work.

$ Defs.

Statement

¶

67; Ex. 4 to Ketler Cert.; Ketler Supp. Cert.

2

¶

7. As

As of May 2012, two of the ten temporary employees that Ms. Ketler had identified in
November 2011 had already left the company.
3

part of this plan, five employees were listed for termination: (1) Plaintiff; (2) Ms. Mullin; (3) Mr.
Gass; (4) Ms. Valdez; and (5) Mr. Caruso. Id. By this time, Mr. Caruso had already been
terminated. Def. Statement

¶

2012, and July 31, 2012. Id.
October 31, 2012.

Id.

76.

72. Ms. Mullin and Mr. Gass were terminated between May 1,

¶

75. Ms. Valdez was terminated between August 1, 2012, and
Thus, as of the end of October 2012, Plaintiff was the only

employee identified for termination who had not yet been terminated.
All temporary employee terminations were kept confidential to avoid any business
disruption and temporary employees were provided two weeks of notice. Defs. Statement ¶J 77,
78.
The November 2012 Termination Decision
In November 2012, Ms. Ketler sent another email regarding temporary-employee cost
savings to Defendant Sesha Bolisetty (Ms. Berlin’s replacement). See P-32, attached as Lx. B to
Thompson Cert.

Attached to this email were two documents titled “FY12 Temp Savings

Summary.ppt” and “Deptl66lOTempFYl2.xls.”

In one attachment, the “Plan” for Plaintiff

reads: “terminate 2/1 current PEs pick-up work.” j Defendants have explained that this refers
to the decision to terminate plaintiff on February 1, 2013, with the plan that current production
editors would assume her work. Ketler Cert.

¶ 25.

On December 20, 2012, Plaintiff informed Ms. Thompson that she was pregnant. Defs.
Statement

¶

86.

This was the first time Plaintiff informed anyone at Wiley that she was

pregnant. j4J87.
On January 2, 2013, Ms. Ketler informed Ms. Thompson and other Wiley employees via
email that they “need[edj to move forward with [their] respective pieces of the 4th quarter temp

4

savings plan.”

$ç JT-5, attached as Ex. C to Thompson Cert.

The email directed Ms.

Thompson to “plan to tell [Plaintiff] by 1/15 of her 2/1 termination.”
On January 10, 2013, Plaintiff attended a staff meeting and was given
new assignments.
Brigandi Dccl.

¶

pregnant. Id.

15. Four hours later, Plaintiff received an email from Ms. Thompson directi
ng

¶

14. At this meeting, Plaintiff “made a general announcement” that
she was

Plaintiff to meet with her the following day.

¶

16. The next day, Plaintiff met with Ms.

Thompson and was informed that she would be terminated on February
1, 2013

—

the date listed

in the attachment to Ms. Ketler’s November 2012 email and Ms. Ketler’s
January 2, 2013, email.
Id.

¶ 17; Defs.

II.

Statement ¶J 89, 90.

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 materi
al 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]urnmary
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).
III.

ANALYSIS

Plaintiff brings five causes of action: (1) NJLAD

—

Discrimination; (2) FMLA

Interference; (3) FMLA Retaliation; (4) NJFLA Interference; and (5)
Aiding and Abetting by
Ms. Thompson, Ms. Ketler, and Ms. Bolisetty.

5

A. NJLAD

-

Discrimination

The Supreme Court of New Jersey has adopted the analytical framework set forth in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973) for adjudicating claims brought under
the NJLAD. $ç Marzano v. Computer Sci. Corp., Inc., 91 F.3d 497, 503 (1996). Under this
framework:
First, the plaintiff has the burden of proving by the preponderance
of the evidence a prima facie case of discrimination. Second, if the
plaintiff succeeds in proving the prima facie case, the burden shifts
to the defendant “to articulate some legitimate, nondiscriminatory
reason for the employees rejection.” Third, should the defendant
carry this burden, the plaintiff must then have an opportunity to
prove by a preponderance of the evidence that the legitimate
reasons offered by the defendant were not its true reasons, but were
a pretext for discrimination.
Id.
Generally, a plaintiff alleging discriminatory termination satisfies its prima facie burden
by establishing: (1) she belongs to a protected class; (2) she was qualified for the position; (3)
she was dismissed despite being qualified; and (4) she was replaced by a person outside the
protected class. Id. When an employee is terminated as part of a reduction in force (“RIF”),
however, a plaintiff need not demonstrate that she was replaced by someone outside the
protected class. Id. Instead, the plaintiff satisfies her burden by demonstrating that she was
discharged while the employer retained someone outside the protected class. jçj
Plaintiff has failed to establish a prima facie case of pregnancy discrimination because
3
she has not shown Defendants knew she was pregnant when the decision to terminate her was

While the term “pregnancy” was added to NJLAD’s list of protected classifications
after Plaintiffs termination, pregnancy discrimination was a viable theory of recovery when
Plaintiff was terminated. See, e.g., Spagnoli v. Brown & Brown Metro, Inc., No. 06-414, 2007
WL 2362602, at *7 (D.N.J. Aug. 15, 2007) (collecting cases demonstrating pregnancy
6

made. “[I]n order to establish a prima facie claim of discrimination, a plaintiff must prove that
the employer had knowledge that the plaintiff belongs to a protected class” at the time the
employer decided to take the adverse employment action. See Geraci v. Moody-Tottrup Int’l,
ç, 82 F.3d 578, 580-81 (3d Cir. 1996) (affirming summary judgment for employer on Title VII
pregnancy discrimination claim when employee was terminated after she revealed she was
pregnant, but the decision to terminate her was made before the employer was aware of her
pregnancy); Cioni v. Globe Specialty Metals, Inc., No. 10-1388, 2013 WL 1844752, at *2
(D.N.J. Apr. 30, 2013) (applying Geraci to a NJLAD claim).

After a year of terminating

temporary employees as part of a cost-saving measure, Wiley made the decision to terminate
Plaintiff on November 20, 2012, which would be effective on February 1, 2013. A January 2,
2013, email to Ms. Thompson confirmed that termination would go forward as planned.

Thus,

when Plaintiff informed Ms. Thompson of her pregnancy on December 20, 2012, the decision to
terminate Plaintiff had already been made.
In arguing that she has met her prima face burden, plaintiff asserts that the decision to
terminate her was not made until January 10, 2013, just “four hours” after Plaintiff made the
general announcement of her pregnancy. Apparently, Plaintiff’s theory is that the company’s
decision to terminate, as per Ms. Ketler’s email of November 20, 2012, and her subsequent email
of January 2, 2013, were somehow reversed by some unidentified person (which explains why
Plaintiff was assigned new work on January 10, 2013) and then made anew by some other
unknown person just hours after, and presumably because, Plaintiff announced her pregnancy.
This theory ignores the unrefuted evidence that the decision to terminate Plaintiff on February 1,
2013, was made on November 20, 2012. The theory is based on pure speculation, and such
discrimination was a viable legal theory prior to NJLAD’s 2014 amendment). Thus, Plaintiff can
proceed under that theory of discrimination.
7

speculation is insufficient to defeat summary judgment. See Geraci, 82 F.3d at 582; Cuozzo v.
Davis-Standard, LLC, No. 10-2276, 2012 WL 845927, at *4 (D.N.J. Mar. 13, 2012); Russo v.
Chico’s FAS, Inc., No. 10-1624, 2011 WL 4901357, at *7 (D.N.J. Oct. 14, 2011).
Even if Plaintiff had met her prima fade burden, the Court separately finds that Plaintiff
has failed to carry her 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.

Hancox v. Lockheed Martin

Tech. Servs., No. 04-6104, 2007 WL 1796248, at *7 (D.N.J. June 21, 2007).

“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 plaintiffs 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, Defendant has articulated a legitimate, non-discriminatory reason for Plaintiff’s
termination: Wiley sought to streamline its staffing and replace expensive temporary employees
with less expensive full-time employees or temporary assistants, or terminate the temporary
employees without hiring any replacement. See Ketler Cert.

¶

14. Thus, the burden shifts to

Plaintiff to establish this justification is pretextual. As set forth above, Plaintiff refers to the
following circumstantial evidence to suggest Defendant’s reason was mere pretext: (1) after

8

receiving Ms. Ketler’s January 2, 2013, email regarding Plaintiff’s termination, Ms. Thompson
nonetheless assigned Plaintiff work at the January 10, 2013, meeting; (2) after Plaintiff publicly
announced her pregnancy, Ms. Thompson asked to meet with Plaintiff privately the next day;
and (3) at that meeting, Ms. Thompson notified Plaintiff that she would be terminated effective
February 1, 2013. See P1. Opp’n Br. at 15-16. These facts would not permit a factfinder to
either disbelieve Defendant’s reason for terminating Plaintiff or that an invidious discriminatory
reason was more likely than not a motivating or determining cause of the termination. As set
forth above, Plaintiff has offered no evidence to call into question the clear evidence
demonstrating Plaintiff was terminated as part of Ms. Ketler’ s cost-saving efforts and that this
decision was made months before Plaintiff was notified of her termination.
Plaintiff cannot point to any evidence at all to suggest that other decision-makers were
involved in a last minute decision to reverse the termination decision made in November 2012,
and to reinstate the decision just hours after Plaintiff made a general announcement that she was
4
pregnant.

“Speculations, generalities, and gut feelings, however genuine, do not allow for an

inference of discrimination to be drawn when they are not supported by specific facts.” Russo,
2011 WL 4901357, at *9; Toy v. Boeing Co., No. 14-3230, 2015 WL 2261879, at *8 (E.D. Pa.
May 13, 2015). Because Plaintiff has failed to rebut Defendant’s legitimate, non-discriminatory
Plaintiff attaches great weight to the fact that Ms. Thompson’s assigned Plaintiff work
on January 10, 2013. That fact, however, is fully consistent with Ms. Ketler’ s directions to keep
termination decisions confidential until the employee is notified of his or her termination to
avoid any business disruption and to provide temporary employees two weeks of notice. Def.
Statement ¶J 77, 78; Ketler Cert. ¶ 23.
Furthermore, Plaintiff’s opposition expends considerable effort to demonstrate the
particulars of the staffing reductions (e.g., the dates of implementation and affected personnel)
were moving targets. But one constant of that plan was Plaintiff’s termination. Indeed, the
evidence demonstrates that Defendants had planned to terminate Plaintiff as far back as February
20 12, and adhered to that plan until fmalizing it on November 20, 2012.

9

reason for terminating her, summary judgment must be granted. See Silvestre v. Bell AtI. Corp.,
973 F. Supp. 475, 484 (D.N.J. 1997), aff’d, 156 F.3d 1225 (3d Cir. 1998).
B. FMLA Retaliation
“To prevail on a retaliation claim under the FMLA, the plaintiff must prove that (1) she
invoked her right to FMLA-qualifying leave, (2) she suffered an adverse employment decision,
and (3) the adverse action was causally related to her invocation of rights.” Lichtenstein v. Univ.
of Pittsburgh Med. Ctr., 691 F.3d 294, 301-02 (3d Cir. 2012). Because Plaintifrs claims are
based upon circumstantial evidence, again the McDonnell Douglas framework guides the Court’s
analysis.

Id. at 302.

To establish her prima facie case, Plaintiff must demonstrate “(a)

invocation of an FMLA right, (b) termination, and (c) causation.”

at 303. To establish

causation, Plaintiff “must point to evidence sufficient to create an inference that a causative link
exists between her FMLA leave and her termination.” Id.. at 307.
Here, Plaintiff has failed to demonstrate a causal connection between the decision to
terminate her and any invocation of an FMLA right. Plaintiff is correct that when “temporal
proximity between the protected activity and adverse action is unduly suggestive, this is
sufficient standing alone to create an inference of causality and defeat summary judgment.” j
But, Plaintiff incorrectly measures the time period between the announcement of her pregnancy
and the adverse action. Assuming Plaintiff’s January 10, 2013, announcement of her pregnancy
constituted an invocation of FMLA leave, the decision to terminate Plaintiff had already been
made. Thus, there is no causal connection between the decision to terminate Plaintiff and the
invocation of any FMLA right.

10

Even if the Court were to conclude that Plaintiff had met her prima fade
burden, the
Court finds, for the reasons set forth above, Plaintiff has failed to demon
strate Defendants’
justification for terminating Plaintiff was pretext.
C. FMLA Interference and NJLAD Interference
5
“To present an interference] claim under the FMLA, a plaintiff must show:
(1) [s]he is
an eligible employee, (2) the defendant is a ‘covered employer,’ (3) [s]he
is entitled to leave
under the FMLA, (4) [sjhe gave the employer notice, and (5) the defendant
denied or interfered
with the plaintiffs FMLA benefits.” Rojas v. Acuity Brands Lighting, Inc.,
No. 12-2220, 2014
WL 2926510, at *12 (D.N.J. June 27, 2014). To demonstrate interference, “the
employee only
needs to show that (1) [s]he was entitled to benefits under the FMLA and (2)
that [s]he was
denied them.” j4, at *14 (quoting Sommer v. Vanguard Grp. 461 F.3d 397, 399
(3d Cir. 2006)).
Therefore, a “employee need not show that he was treated differently than
others[, and] the
employer cannot justify its actions by establishing a legitimate business purpos for
e
its decision.”
Sommer, 461 F.3d at 399. Nonetheless, a plaintiff cannot pursue a FMLA interfe
rence claim
when the decision to terminate the plaintiff was made before the plaintiff reques
ts a right under
the FMLA.

Atchison v. Sears, 666 F. Supp. 2d 477, 489-90 (ED. Pa. 2009) (“No FMLA

violation occurs where an employer has already decided to terminate the employ
ee before the
employee requests FMLA leave.”) (quoting Reinhart v. Mineral Techs. Inc No.
05—4203, 2006
WL 4050695, at *13 (E.D. Pa. Nov. 27, 2006)). As set forth above, Plainti
ff has failed to
demonstrate that the decision to terminate her was made after she invoked her rights
under the

“Due to the similarity of the statutes, courts apply the same standards and framew
ork to
claims under the FMLA and the NJFLA.” Yamamoto v. Panasonic Corp. of
N. Am., No. 122352, 2013 WL 3356214, at *8 (D.N.J. July 2, 2013) (quoting Wolpert v. Abbott
Labs., 817 F.
Supp. 2d 424, 437 (D.N.J. 2011)).

11

FMLA.

Thus, summary judgment must be granted for Defendants
as to Plaintiffs FMLA

Interference and NJFLA Interference claims.
6
D. Aiding and Abetting
Because Plaintiff’s NJLAD, FMLA, and NJFLA claims have
been dismissed, Plaintiffs
Aiding and Abetting claim must also be dismissed. Samps
on v. Methacton Sch. Dist., No. 114553, 2015 WL 641216, at *20 (E.D. Pa. Feb. 12, 2015); Roman
v. Waste Mgmt. of N.J., No.
10-4337, 2011 WL 1807642, at *5 (D.N.J. May 12, 2011).
IV.

CONCLUSION

For the reasons set forth above, Defendants’ motion
for summary judgment is
GRANTED. An appropriate order will follow.

Is Madeline Cox Arleo
HON. MADELINE COX ARLEO
UNITED STATES DISTRICT JUDGE

6

Separately, Plaintiffs interference claim should be dismis
sed as duplicative.
Lichtenstein, 691 F.3d at 314 n.25; Beese v. Meridian Health
Sys.. Inc., No. 11-7505, 2014 WL
3519124, at *9 (D.N.J. July 16, 2014).
12