SIVELLS v. SAM'S CLUB

Filing 43

OPINION. Signed by Judge Kevin McNulty on 7/25/17. (sr, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CHANTEL SWELLS,
Civ. No. 14-7650 (KM) (MAH)
Plaintiff,
OPINION
V.

SAWS CLUB,
Defendant.

KEVIN MCNULTY, U.S.D.J.:
Pro se plaintiff Chantel Sivells sues her former employer, Sam’s Club,’

for violations of Title VII of the Civil Rights Act of 1964 and for defamation.
Sivells, who is female and African-American, alleges that Sam’s Club treated
men and Hispanics preferentially, and that she was fired for complaining about
it. She adds that Sam’s supervisors defamed her in the process. Sam’s Club
has moved for summary judgment. The record paints a picture of a
conscientious employee who worked hard and took her job seriously. It also
suggests that at least some of Sivells’s grievances may be real and substantial.
Title VII, however, is a remedy for discrimination, not a salve for workplace
tensions and disputes. Because there is insufficient evidence of discriminatory
animus, and because the defamation claim is both defective and beyond the
statute of limitations, I will grant the motion of Sam’s Club for summary
judgment and dismiss the complaint.

Sam’s East, Inc., is the formal name of the defendant, but Ijoin the parties and
use “Sam’s Club” or just “Sam’s.”

1

I.

BACKGROUND
Facts2

A.

On March 29, 2011, Sam’s Club hired Sivells, an African-American
woman, as a part-time cashier. Later that year, in October 2011, she shifted to
a position as a part-time gas station attendant. In February 2013, she was
made a full-time gas station attendant. (DSF

¶1J

1, 3, 6; Dep. 122:23-25)

Sam’s gas station attendants typically work in four overlapping shifts.
One employee opens the station; that “opening” shift begins before 6:00 am
and ends early in the afternoon, sometime between 1:30 to 2:30 pm. A second
employee arrives at around 7:00 am and leaves around 3:00 or 3:30 pm. A
third arrives at 9:00 am and leaves between 5:00 or 5:30 pm. The last two
employees close the station; that “closing” shift starts between 1:30 pm and
2:00 pm and concludes around 9:30 pm. (Dep. 25-29)
Sivells preferred the opening shift, although she was available for
others. Typically, she was scheduled for the opening shift between two and four
times a week. Gas station attendants were permitted to trade shifts with each
other if they didn’t like their assigned shifts. From June 1, 2013 to November
2

Citations to the record are abbreviated as follows:
“DSF”

—

Defendant’s Statement of Material Undisputed Facts, ECF No, 38-1

Excerpts of the deposition of Chantel Sivells, dated August 17,
“Dep.
2016, attached as Exhibit 2 to the Certification of Salvador P. Simao, Esq., ECF No.
38-3
“

—

Email from Chantel Sivells to Jennifer Logan, dated
“9/30/2013 Email”
September 30, 2013, attached as Exhibit 10 to the Certification of Salvador P. Simao,
Esq., ECF No. 38-13)
—

Exit Interview Form, dated 11 / 25/2013, attached as Exhibit
“Exit Inten’iew”
11 to the Certification of Salvador P. Simao, Esq., ECF No. 38-14
—

Statement of Harold Hurtado, dated November 25,20i3,
“Hurtado Stmt.”
attached as Exhibit 12 to the Certification of Salvador P. Shnao, Esq., ECF No. 38-15
—

Statement of Brian Borahona, dated November 25, 2011,
“Borahona Stmt.”
attached as Exhibit 14 to the Certification of Salvador P. Simao, Esq., ECF No. 38-17
—

Statement of Chantel Sivells, dated November 25, 2011,
“Sivells Stmt.”
attached as Exhibit 15 to Certification of Salvador P. Simao, Esq., ECF No. 38-18
—

2

25, 2013, Sivells worked a total of 123 shifts. Of that total, 83, or about over
two thirds, were opening shifts. (DSP

¶

4, 7, 35; Dep. 134:23-135:13, 146:6-

22)
While employed at Sam’s, Sivells felt she was excluded from a clique
of female employees, which she calls the “Social Group.” Members included
“Myra” (Hispanic), “Brittany” (white), “Natalie” (Hispanic), “Tamika” (African
American), and “Casmina” (Hispanic). The Social Group “felt as if they were
better than everybody else” and “were untouchable.” They didn’t like Sive]ls;
Sivells didn’t like certain things about them, including their “gossip.”3 Some
members of the Social Group, such as Brittany and Carmina, were managers.
Others, such as Myra, were supervisors.4 (Dep. 48:7-16, 51:23-53:15, 62-10:63:25)
Sivells says that her outsider status negatively affected her shift
assignments. After a gas station employee named “Waleska” (Hispanic female)
left Sam’s, her opening shifts went “up for grabs.” Sivells told Brittany,
Carmina, and another manager, “Lafina” (African-American female), that she
would like Waleska’s shifts. Although two male gas stations attendants didn’t
even want those shifts, management nevertheless split them up among all the
gas station attendants.5 In another instance, “Quadere” (African-American
The tension between the Social Group and Sivells appears to stem from a falling
out between Sivells and Myra. Sivefls had a second part-time position as a cashier at
MetLife Stadium. A friend of Myra’s also worked at MetLife, as a parking attendant, At
some point, Myra mentioned to Sivells that her friend was stealing from MetLife.
Sivells, who had been with “MetLife for five years [and had] never been written up,”
responded by giving Myra the cold shoulder, and Myra was “put off” by that. Sivells
suggests that a contributing factor may have been that Myra and the Social Group
were engaging in some questionable conduct of their own at Sam’s. (Dep. 66:15-71:7)
It seems that managers were above supervisors in the chain of command. The
parties sometimes use the term “management,” but it is not clear whether it refers
only to managers, such as Brittany and Carmina, or whether it also includes higherups, such as Jennifer Logan, who worked at corporate human resources, or Harold
Hurtado, who seems to be the person who actually fired Sivells. For the purposes of
resolving this motion, I interpret “management” broadly.
It isn’t clear how many gas station attendants Sam’s Club employed in addition
to Sivells.
3

male) was given opening shifts because he was friends with Brittany, even
though Sivells was more senior and Quadere was guilty of “stealing company
time.” (Dep. 124, 126:3-8, 127, 133:3-6; 159:7-161:12)
Sivells also claims that the Social Group was responsible for her
having to work through lunch and breaks. On a number of occasions, the gas
station attendant(s) scheduled to work the shift following that of Sivells did not
show up. When this happened, Sivells would ask for reinforcements, but
management “would say they wouldn’t have anyone” available to help. So she
was forced to “stay[] at the gas station pumping every single car that came in”
for “eight hours, six hours, seven hours.” Management’s inadequate response
to her plight, says Sivells, is traceable to the Social Group’s personal dislike of
her. Out of a total of 492 shifts that Sivells worked as a gas station attendant,
this happened seven or eight times. (DSP

¶

44, Dep. 30:14-31:21, 43:20-25,

45:2-18, 53:6-54:6)
In a September 30, 2013 email, Sivells alerted a corporate human
resources manager, Jennifer Logan (African-American female), that “me and my
coworkers [were being left] outside alone for hours.” She also identified a
number of other management failures, including “not properly staffing the gas
station,” “overlooking the schedules to make sure all shifts are thoroughly
covered,” excluding gas station attendants from “incentives for good
performance,” and failing to recognize and appreciate the gas station
attendants’ contributions to the Sam’s team. The email essentially complains
about mismanagement and working conditions; it contains no allegation of
race, color, or gender-based discrimination. (9/30/2016 Email)
On November 25, 2013, Sam’s Club terminated Sivells for “gross
misconduct.” That morning, Asset Protection Manager Harold Hurtado
inspected the gas station and observed debris in the underground gas tanks.6
Hurtado asked Sivells, who had opened the station, why she had indicated on

6

Hurtado’s race and gender have not been identified.

4

the “Fuel Attendant Opening Checklist” that the tanks were clean. Sivells
explained that she first completed the checklist when she arrived in the
morning and then performed the required tasks, such as cleaning the tanks,
during the course of her shift.7 That, Hurtado admonished, “was not the right
way to do it,” to which Sivells retorted: “Whatever. I already signed the damned
paper.” As Hurtado walked away, Sivells swore at him.8 For swearing and being
disrespectful to management, Sivells was fired. (Hurtado Stmt.; Borahona
Stmt.; Exit Interview)
Two or three months after the “swearing” dismissal, in February 2014,
Sivells was reinstated. The following month, however, she took a leave of
absence. After a year-long absence, on March 25, 2015, she resigned from
Sam’s, citing personal and health issues. (DSF

¶

68-73)

Sivells says this was the standard practice among the gas station attendants.
According to a statement given by a gas station attendant who witnessed the
November 25, 2013 incident, “Brian” (male), Sivefls told Hurtado that she liked to wait
until the shift after hers arrived so that a second person could help her clean the
tanks. “Since it usually gets busy in the morning,” Brian wrote, the gas station
attendants “normally sign[edJ the checklist paper saying they cleanfed] the tank,” but
“would wait for the 7 a.m. and 9 a.m. shift” to arrive to clean the tanks. (Borahona
Stmt; Dep. 8:1-6)
According to Hurtado, Sivells said: “That[]s all you come for to criticize my
work[?] I know how to do my fuckingjob[.] Why don’t you fucking people leave me
alone. Just fucking leave me alone.” (Hurtado Stmt.) Borahona recalled hearing Sivells
say, “I normally sign it and wait for the next person to come in so that there is two
people working and I can [illegible] time to clean the tanks. I am not doing my fucking
job wrong.” (Borahona Stmt.”)
S

In her papers, Sivells says she did not technically swear at Hurtado. What she
means is that she “was cursing out of frustration,” and not with the intent of insulting
the man. Sivells concedes, however, that she did in fact say something along the lines
(Dep. 60:23-6 1:24)
of”I don’t understand why they won’t fuciting leave me alone
From Sivells’s perspective, her outburst was “just a continuation” of an incident
between her and Hunado from a “few days” prior. Hunado had chastised her painting
something poorly, even though Sivells has bad knees, which made the job difficult.
Sivells “let [that incident] go but to be criticized again left [her] extremely upset.”
(Sivells Stmt.)

5

Sivells now lives in Virginia. She sells insurance and works at a Food
Lion supermarket.9
B.

Procedural History
On January 29, 2014, Sivells filed a charge of discrimination with the

U.S. Equal Employment Opportunity Commission (“EEOC”). On September 11,
2014, the EEOC issued a right-to-sue letter. On December 8, 2014, Sivells filed
this action. (ECF No. 1)
On September 30, 2015, Sam’s Club moved to dismiss the complaint.
Although the standard short-form complaint contained few concrete factual
averments of discrimination, I denied the motion. As a pro se litigant, Sivells
was entitled to some leeway, and the documents submitted in connection with
the complaint persuaded me that there was “enough here to warrant at least
some discovery.” (ECF Nos. 16, 21)
In October 2016, discovery closed. Sam’s Club filed a motion for
summary judgment on January 13, 2017. The motion is now fully briefed and
ripe for decision. (ECF Nos. 35, 38-40)
H.

DISCUSSION
A.

Standard of Review
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). The
The documents submitted by Sivells are not marked as separate exhibits, and
there are no page numbers. But Sivells has submitted excerpts of her own deposition,
and the support for these facts can be found at 176:23-180:2. (ECF No. 39)

9

6

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, 106
(1986). “[Wjith respect to an issue on which the nonmoving party bears the
burden of proof

...

the burden on the moving party may be discharged by

‘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 nonmoving party “must do more than simply show that there is some metaphysical
doubt as to material facts.” Matsushita Lice. Indus. Co., Ltd. u. 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. I?. 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). “[U]nsupported allegations

...

and pleadings are

insufficient to repel summary judgment.” Schoch z1’. First Fid. Bancorporation,
912 F.2d 654, 657 (3d Cir. 1990); see also Gleason v. Nonvest Modg., 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).
If a party fails to address the other party’s properly supported
assertion of fact, the court may consider “grant[ing] summary judgment if the
motion and supporting materials—including the facts considered undisputed—
show that the movant is entitled to it.

.

.

.“

Fed. I?. Civ. P. 56(e). Local Civil

Rule 56.1(a) deems a movant’s statement of material facts undisputed where a

7

party does not respond or file a counterstatement. L. Civ. R. 56(a). Sivells has
not responded to Sam’s statement of material facts. A failure to dispute a
party’s statement of material facts, however, “is not alone a sufficient basis for
the entry of a summary judgment.” See Anchorage Assocs. u. Virgin Islands Be!
of Tax Review, 922 F.2d 168, 175 (3d Cir. 1990) (holding that even where a
local rule deeming unopposed motions to be conceded, the court was still
required to analyze the movant’s summary judgment motion under the
standard prescribed by Fed. R. Civ. P. 56(e)).
Because Sivells is a pro se litigant, as well as the nonmoving party, I
have construed her pleadings and filings liberally. See, e.g., Giles v. Keamey,
571 F.3d 318, 322 (3d Cir. 2009) (citing Haines v. Kemer, 404 U.S. 519, 520521 (1972); Gibbs v. Roman, 116 F.3d 83, 86 n. 6 (3d Cir. 1997)). Sivells’s
papers are unsupported by sworn affidavits, but she has submitted
voluminous (and unpaginated) exhibits. Some of these documents are clearly
directed to the merits of the summary judgment motion, and others less clearly
so. I nevertheless have considered them all. For purposes of this motion, I have
credited her factual contentions as if they had been contained in sworn
affidavits and insofar as they have record support.
B.

Analysis

Sivells asserts two claims. The first, a Title VII claim, is based on two
alternative theories: discrimination and retaliation. The second claim is for
defamation. The Title VII and defamation claims lack adequate factual support,
and the defamation claim is time-barred and defective as well. Summary
judgment will be granted as to each.
1.

Title VII

“Title VII of the Civil Rights Act of 1964 makes it unlawful for an
employer ‘to discriminate against any individual with respect to his [or her]
compensation, terms, conditions, or privileges of employment, because of such
individuals race, color, religion, sex, or national origin.”’ Kunin v. Sears

8

Roebuck & Co,, 175 F.3d 289, 293 (3d Cir. 1999) (citing 42 U.S.C.

§ 2000e-

2(a)(lfl. Sivells asserts two causes of action under Title VII: (1) racial
discrimination and (2) retaliation. Each claim uses a specialized burdenshifting framework in which the plaintiff must first state a prima facie claim of
discrimination or retaliation. Because there is no evidence sufficient to make
out a prima facie case that Sivells was discriminated on the basis of a protected
characteristic or retaliated against for engaging in a protected activity, her Title
VII claims must fail.
i.

Race or Sex Discrimination

A prima facie case of racial discrimination encompasses four
elements: 1) the plaintiff belonged to a protected class; 2) she was qualified for
the position in question; 3) she was subject to an adverse employment action;
and 4) the adverse action was taken under circumstances giving rise to an
inference of discrimination. Greene v. Virgin Islands Water & Power Auth., 557
F. App’x 189, 195 (3d Cir. 2014) (citing Burton v. Teleflex Inc., 707 F.3d 417,
426 (3d Cir. 2013); accord Shahin v. Delaware, 543 F. App’x 132, 136 (3d Cir.
2013); Rodriguez a AMTRAK, 532 F. App5c 152, 153 (3d Cir. 2013).
Sivells contends that she was discriminated on the basis of her race
and gender because (a) males and Hispanics were assigned their choice of
shifts and (b) she was left alone during her shifts without reinforcements, but
men and Hispanics weren’t. The first two elements of the prima fade case are
not in dispute: Sivells is an African-American woman who was qualified to be a
gas station attendant. But Sivells has failed to establish the last two elements
of the prima facie case: that she suffered an adverse employment action, and
that the surrounding circumstances give rise to an inference of discrimination.
An adverse employment action is “a significant change in employment
status, such as hiring, firing, failing to promote, reassignment with
significantly different responsibilities, or a decision causing a significant
change in benefits.” Durham Life Ins. Co. v. Evans, 166 F.3d 139, 153 (3d Cir.

9

i999) (quoting Burlington Indus. z,’. Ellerth, 188 S. Ct. 2257, 2268 (1998)). It
could also be a “substantial[j decrease[] [inj an employee’s earning potential” or
“a significant disruption in his or her working conditions.” Durham, 166 F.3d at
153.
No such change in status or disruption occurred here. Having to work
an undesirable shift is not an adverse employment action. See Clayton v. Pa
Dep’t of Welfare, 304 F. App’x 104, 106-7 (3d Cir. 2008) (affirming district
court’s grant of summary judgment for failure to establish an adverse
employment action where plaintiff alleged that he was forced to work an
inconvenient schedule). Neither is understaffing, or leaving an employee alone
for all or pan of a shift. Pagan v. Holder, 741 F. Supp. 2d 687, 692, 696-97
(D.N.J. 2010) (ruling that working alone in a gymnasium filled with over one
hundred federal prisoners is not an adverse employment action). These
incidents, although Sivells quite understandably was upset by them, are not
adverse employment actions. They are instead garden-variety workplace
complaints. Considered individually or collectively, Sivells’ grievances do not
rise to the level of an adverse employment action actionable under Title VII. See
also Goodall-Gaillard v. N.J Dep’t of Con., Civ. No. 9-954 (KM)(MAH), 2014 U.S.
Dist. LEXIS 86527, at *111114, n.40 (D.N.J. June 24, 2014) (finding
allegations that plaintiff was “denied assistance,” given “worse assignments,”
and “a worse work schedule” insufficient to establish discriminatory action),
aff’d, 625 F. App’x 123, 128 (2015), ced. denied 136 S. Ct. 1207 (2016).
For the purposes of argument, however, I will assume that these
incidents significantly changed Sivells’ employment status or workplace
conditions. Her discrimination claim would still fail because there are no facts
on which to base an inference of race or gender bias.
Begin with the allegation that Sivells was denied Waleska’s opening
shifts because she was not Hispanic or male. Those shifts were divided among

all the gas station attendants. Even-handed division suggests that
management’s motivation was fairness or administrative efficiency, not race or
10

gender bias. As to Quadere’s opening shifts, Sivells testified that Brittany, the
scheduling manager, gave him those shifts because they were friends. (Dep.
161:6-12) Awarding plum shifts to friends may be unfair or an abuse of
authority, but without more it does not suggest discriminatory intent. The
essential principle is that in a Title VII case, “the factual dispute at issue is
whether discriminatory animus motivated the employer, not whether the
employer is

wise,

shrewd, prudent, or competent.”

q

Fuentes v. Perksi, 32

P.3d 759, 765 (3d Cir. 1994) (in context of rebutting employer’s rationale).
I am of course mindful of Sivells’s theory here: that the friends to
whom management gave the best shifts were male and Hispanic. That
membership in a social clique may be a proxy for race or gender is not so far
fetched that I would reject it out of hand. The problem, however, is that the
record lacks any evidence establishing even a rough correspondence between
preferential scheduling assignments and protected characteristics.
Management indeed denied the scheduling requests of similarly situated men
or Hispanics—one Hispanic male employee actually quit after management
refused to reduce his hours. (Dep. 138:21-139:1, 163:17-164:25) And Sivells’s
schedule, all things considered, does not seem so unfavorable. She concedes
that she opened the gas station (her preferred shift) two to four times per week.
(Id. 135:4-13) She does not dispute that she got her way much of the time; just
over two thirds (67%) of her shifts in the last six months of her employment
were opening shifts. (DSP’

¶

35) Sivells, to be sure, would have liked to work

even more opening shifts. But bare, unsupported assertions of racial or gender
bias do not transform scheduling-related grievances into Title VII
discrimination claims.
In short, the facts before me indicate that Sivells opened the gas
station frequently, though not as much as she preferred, and that scheduling
decisions may have been based on reasons other than merit or necessity. Other
than citation of the gender and ethnicity of the participants, Sivells does not
offer evidence of discriminatory animus, or even a suggestive pattern. Any Title

11

VII discrimination claim based on scheduling disparities is not supported by

the evidence, and so therefore must fail.
I next turn briefly to the allegation that Sivells was sometimes forced
to work without a second person to help, because of her race or gender. Sivells
suggests hypothetically that reinforcements would have been sent if she were
not an African-American woman. She has proffered no evidence of that. Nor
does a pattern emerge from the data. Sivells worked alone seven or eight times
out of the total of 492 shifts she worked during her employment at Sam’s. (DSF

¶

44) And there is a plausible, neutral reason for those incidents: they occurred

only when the gas station attendant scheduled for the shift following hers did
not appear for work. The frequency and context of these incidents do not
suggest discriminatory animus. And there is no comparative evidence of what
management did in response to no-shows when employees who were not
African-American or female were working.’°
Sivells, in sum, has failed to meet her burden to present specific facts
showing a genuine issue for trial. Summary judgment is granted as to the Title
VII discrimination claim.
ii.

Retaliation

Sivells’s second Title VII claim is for retaliation. The prima facie case
for such a claim has three elements: (1) the plaintiff engaged in activity
protected by Title VII; (2) the employer took an adverse employment action
against her; and (3) there was a causal connection between her participation in
the protected activity and the adverse employment action. Moore v. City of

At her deposition, Sivells testified that she didn’t clock out for lunch for the
seven to eight instances in which she was forced to work through lunch, so
presumably she was paid for all the time she worked. (Dep. 45:2-18) In the papers,
however, she claims that her time sheets were “edited” to show that she took lunch
when she in fact did not. Specifics, however, are lacking, including any facts
concerning the specific timesheets that allegedly were edited. Timeliness aside (the
complaint does not assert a Fair Labor Standards Act claim), this claim would be
dismissed for lack of evidentiaiy support.
0

12

Philadelphia, 461 F.3d 331, 340-4 1 (3d Cir. 2006) (applying McDonnell Douglas
framework in retaliation case).
As to the first element of a prima fade case, there are two classes of
“protected activity”; (a) participation (which includes formal charges, testifying,
assisting, or participating in any investigation, proceeding, or hearing under
Title VII) and (b) opposition (encompassing informal grievance procedures,
informal protests, and making complaints to management about acts unlawful
under Title VII). See Moore, 461 F.3d at 341, 343; Curay-Cramer v. Ursuline
Academy of Wilmington, Delaware, Inc., 450 F.3d 130, 135 (3d Cir. 2006). An
actual Title VII violation need not be proven, but the employee plaintiff must
have had an “objectively reasonable belier that the challenged practice of the
employer was unlawful under Title VII. Moore, 461 F.3d at 341 (citing Clark
County u. Breeden, 532 U.S. 268, 271 (2001) (per curiam)). The opposition to
discrimination must have been clear, not equivocal. Id.
The second, “adverse action” element of a prima facie case is
measured from the point of view of a reasonable employee. The retaliatory
action must have risen to a level that “well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination.” Moore, 461 F.
3d at 341 (citing Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006)).
The third element of a prima facie case requires a causal connection
between the first two. Id. at 342. Causation requires a showing of “what
harassment, if any, a reasonable jury could link to a retaliatory animus.” Id.
(citing Jensen v. Potter, 435 F.3d 444, 449-50 (3d Cir. 2006)).
Sivells’s prima fade burden at the first step of the McDonnell Douglass
framework is not an onerous one, but it has not been carried here. Sivells
contends that she was fired for sending the September 30, 2013 email. She has
not shown, however, that her message to management was protected
or even if it was, that it was the reason she was fired.

13

activity,

As to the first element of the prima facie case, the September 30, 2013
email contains no allegation of an “employment practice made illegal by Title
VII.” Davis v. City of Newark, 417 F. App’x. 201, 202 (3d Cir. 2011) (citing
Burlington, 548 U.S. at 68; Moore, 461 F.3d at 341; accord Curay-Cramer, 450
F.3d at 135; Barber v. CSXDistrib. Sews., 68 F.3d 694, 701-02 (3d Cir. 1995)).
What it contains instead are complaints about management’s fecklessness
(e.g., persistent understaffing and shoddy scheduling) and lack of appreciation
for Sivells and her colleagues (e.g., that no gas station attendant was named
employee of the month). Sivells may be commended for going out on a limb to
stick up for herself and her co-workers. But “general complaints of unfair
treatment” are not a protected activity. Davis, 417 F. App5c at 203 (citing
Curay-Cramer, 450 F.3d at 135). Because Sivells’s “sundry complaints to her
superiors failed to identify any conduct proscribed by Title VII, they do not
amount to ‘protected activity,’ and thus cannot form the basis of a retaliation
claim.” Id.
Even if the September 30, 2013 email had constituted protected
activity, there would not be enough facts here to establish a primafacie case of
notified of
causation. Sivells testified that she doesn’t know who, if anyone,
was

the email (which was sent to Sam’s Club’s corporate HR department, not to
anyone in the Social Group). She does not know if it went to the specific
individuals involved in her termination. (Dep. 18:3-18) Indeed, Sivells has not
identified, nor have I been able to locate, any factual link between the email
and her termination some two months later, on November 25, 2013. Sivells, to
be sure, insists that the timing of her termination is suspicious, but temporal
proximity alone is not sufficient to establish causation. Choy v. Comcast Cable
Comm’ns, 629 F. App’x 362, 265 (3d Cir. 2015) (finding six-week period
insufficient to establish causation); Thomas u. Thown of Hammonton, 351 F.3d
108, 114 (3d Cir. 2003) (finding three week period insufficient); accord Budhun
v. Reading Hosp. & Med. Ctr., 765 F.3d 245, 258 (3d Cir. 2014) (stating that

“Lw]e have been reluctant to infer a causal connection based on temporal

14

proximity alone”) (citing Weston i-c Pennsylvania, 251 F.3d 420, 431 (3d Cir.
2001)). Temporal proximity may take on more significance when there is no
other legitimate explanation for the adverse employment action. Sivells admits,
however, that she swore at (or in the presence of) a supervisor who criticized
her performance on the very morning of her dismissal; that further weakens
any inference that her dismissal actually constituted delayed retaliation for a
two-month-old email.
Viewing the evidence in the record as a whole, there is no genuine
issue of material fact as to whether Sivells was terminated because of protected
activity. The motion of Sam’s Club for summary judgment on the retaliation
component of Sivells’s Title VII claim is therefore granted.1’

This lack of evidence would also doom the retaliation claim at step three of the
McDonnell Douglass process.
Assuming Sivells could establish a prima fade case of retaliation, the burden
would shift to Sam’s to provide a legitimate, non-retaliatory reason for Sivells’s
termination. Obviously, the non-retaliatory reason would have been Sivells’s profane,
if somewhat understandable, outburst to management on the morning of November
25, 2013. Dropping an f-bomb generally strikes me as a somewhat weak (and almost
certainly selectively enforced) reason to terminate an employee, but I think having a
foul-mouthed meltdown in response to questioning from a manager is probably a
fireable offense. Cf Magnusson v. The Hartford, 258 F. App’x 444, 446 (3d Cir. 2007)
(describing employer’s burden at step two as “relatively light” and allowing claim to
proceed to step three where employer claimed it had fired employee because he had
“muttered F*** you, mother**** during a conference call with a client). Under these
circumstances, I would find that Sam’s Club carried its burden at step two.
11

In the third and final step, the burden shifts back to Sivells to show that the
real reason for her termination was sending the September 30, 2013 letter, At this
final “pretext” stage, Sivells’s burden is heavier: she would need to “show that she
would not have suffered an adverse employment action ‘but for’ her protected activity.”
Young ii. City ofPhila. Police Dep’t, 651 F. App’x 90, 95-96 (3d Cir. 2016) (citing Uni. of
Tex. Sw. Med. Cntr. u. Nassar, 133 S. Ct. 2517, 2533 (2013)). The evidence of pretext is
very weak, however, and not enough to establish “but-for” causation.
Sivells alleges that other employees engaged in worse—maybe even illegal—
conduct than she did. Yet no evidence beyond her say-so is provided. She also claims
that because she didn’t technically swear at Hurtado, termination was
disproportionate to the severity of the infraction. Indeed, she claims that Sam’s
admitted that her termination was wrong because she was reinstated in February
20 14. But her re-hiring does not prove that her firing was motivated by race or gender;
it simply shows that Sivells, through the appropriate channels (the parties call it the
15

2.

Defamation

Sivells’s last claim is for defamation. Regardless of the merits, it is
time-barred. The statute of limitations for defamation in New Jersey is one
year. N.J. Stat. Ann.

§

2A: 14-3. Sivells points to a number of allegedly

defamatory statements, all of which occurred on November 25, 2013, or
thereabouts. Sivells filed her complaint on December 8, 2014, more than one
year after the utterance or the publication of the allegedly defamatory
statements. The issue of tolling has not been raised, nor is there reason to
believe that tolling is appropriate on these facts.12 I therefore grant Sam’s
Club’s motion for summary judgment as to Sivells’s defamation claim.

“Open Door Process”), asked to be reinstated, and was successful. All the
reinstatement demonstrates, in other words, is that Sivells was given a second chance.
More generally, “{i]t is not enough to show that the termination was wrong or unfair.
The evidence must allow a reasonable juror to conclude that the Defendants were
motivated by discriminatory intent.” Magnusson, 258 F. App’x at 446 (citing Fuentes,
32 F.3d at 763). Based on this record, no reasonable juror could conclude that the
stated reason for her termination was a cover for discriminatory animus.
Federal courts apply state tolling principles to supplemental state law claims.
E.g., Polkampally u. Countrywide Home Loans, Inc., Civ. No. 130174 (RBK/JS), 2013
U.S. Dist. LEXIS 158672, at*8l0, 23-27)(D.N.J. Nov. 6,2013). In New Jersey, the
statute of limitations may be tolled by statute, e.g., N.J. Stat. Ann., § 2A:14-21, 14-22,
by the discovery nile, e.g., Guichardo v. Rubinfeld, 177 N.J. 45, 51(2003), or pursuant
to equitable tolling principles, e.g., Polkampally, at *26 (citing Villalobos v. Fava, 342
N.J. Super. 38, 50 (App. Div. 2001), Freeman v. State, 347 N.J. Super. 11, 31 (App.
Div. 2002)). Those doctrines have no application here.
As to statutory tolling, the listed bases are absent. As to the discovery rule, it
may not apply to defamation claims at all. E.g., Nuwave Ira’. Corp. v. Hyman Beck &
Co., Inc., 221 N.J. 495, 500-01 (2015). In any case, there are no facts suggesting that
Sivells did not know, or could not have discovered through the exercise of reasonable
diligence, the allegedly defamatory or slanderous statements of which she complains.
See Guichardo, 177 N.J. at 51. There is likewise no indication that Sivells was
“induced or tricked by [her] adversary’s misconduct into allowing the filing deadline to
pass,” was prevented “in some extraordinary way” from asserting her rights, or “timely
asserted [hen rights mistakenly by either defective pleading or in the wrong forum.”
Polkampally, at *26.
I also note that, as a matter of federal law, the Courts of Appeal for the Second,
Seventh, and Ninth Circuits have held that filing a discrimination charge with the
EEOC does not toll the statute of limitations applicable to a state tort claim based on
the same set of facts. See, e.g., Castagna v. Luceno, 744 F.3d 254, 257-58 (2d Cm.
2014); Juarez v. Ameritech Mobile Comm’ns, Inc., 957 F.2d 317, 323 (7th Cir. 1992);
12

16

Even if not time-barred, the defamation claim would surely fail, Under
New Jersey law, the elements for written and oral defamation (slander) are as
follows: (1) a false and defamatory statement concerning the plaintiff, (2)
communicated to a third party, with (3) a sufficient degree of fault. See Mangan
v. Corp. Synergies Grp., Inc., 834 F. Supp. 2d 199, 204 (D.N.J. 2011) (citing
Singer v. Beach Trading Co., 379 N.J. Super. 63, 79 (App. Div. 2005)). Sivells

alleges five defamatory or slanderous statements: (1) Hurtado’s written
statement addressing the November 25, 2013 incident; (2) Borahona’s written
statement addressing the same; (3) “Swaveck’s” statement to “Steven” that
Sivells had been “written up before”; (4) Steven’s statement to Sivells that
customers had complained about the November 25, 2013 incident; and (5)
Steven’s statement to Sivells that she had been “yelling and screaming and
hollering” during the same. (Dep. 118:2-122:19) Each fails to satisfy at least
one element of a defamation cause of action.
As to the written statements of Borahona and Hurtado, Sivells points
to certain inconsistencies between them, but offers nothing to establish the
falsity of their contents. To the contrary, the statements actually corroborate
the essential facts of the November 25, 2013 incident: that Sivells became
frustrated when Hurtado questioned her about filling out the checklist when
she had not yet performed the tasks, and objected using inappropriate
language. Nor is there any evidence that Swaveck’s statement to Steven that
Sivells had been “written up before” was false (or really that it was said at all).
In addition, Steven’s statements that customers had complained and that
Arnold v. United States, 816 F.2d 1306, 1313 (9th Cir. 1987). The New Jersey Supreme
Court has yet to consider the tolling effect that a pending federal administrative claim
of discrimination charge has on a claim under state law. Forced to decide the issue, I
would predict that the New Jersey Supreme Court would hold that the filing of an
EEOC charge does not toll the limitations period for a tort based on related facts. Cf
Mmcm u. Shaw Packing Co., 989 F. Supp. 710, 717-20 (W,D. Pa. 1997) (D. Brooks
Smith, J.) (addressing Pennsylvania law); Kolenikow v. Hudson Valley Hosp. Ctr., 622
F. Supp. 2d 98, 122-23 (S.D.N.Y. 2009) (addressing New York law and noting that
“the vast majority’ of courts in this District have held that the statute of limitations for
state tort claims is not tolled during the pendency of an administrative discrimination
charge.”) (emphasis in original)).

17

Sivells had been “yelling and screaming and hollering,” were made to Sivells
herself, not to third parties.
In short, the record lacks the evidence necessary to establish a triable
defamation claim. As an alternative ground for dismissal, I would therefore
grant Sam’s Club’s motion for summary judgment for failure to raise a genuine
issue of material fact as to any of the five instances of defamation alleged.
III.

CONCLUSION

For the foregoing reasons, the motion of Sam’s Club for summary
judgment (ECF No. 38) is GRANTED, and the entire Complaint (ECF No. 1) is
DISMISSED WITH PREJUDICE. An appropriate Order accompanies this
Opinion.
Dated: July 25, 2017

MCNULTY
United States District Judge

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