GROSSBERG v. HUDSON COUNTY DEPARTMENT OF HUMAN SERVICES
AMENDED OPINION. Signed by Judge Stanley R. Chesler on 7/18/17. (DD, )
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
NOT FOR PUBLICATION
HUDSON COUNTY DEPARTMENT OF
Civil Action No. 15-1456 (SRC)(CLW)
CHESLER, District Judge
The opinion filed on July 13, 2017, is hereby amended as follows.
Plaintiff Evon Grossberg (“Plaintiff”) brings this action against Defendant Hudson
County Department of Social Services (“Defendant”), alleging employment discrimination,
hostile work environment, and retaliation in violation of Title VII of the Civil Rights Act of 1964
(“Title VII”), 42 U.S.C. § 2000e et seq., the Age Discrimination in Employment Act of 1967
(“ADEA”), 29 U.S.C. §§ 621 et seq., Section 1981 of the Civil Rights Act of 1866 (“Section
1981”), 42 U.S.C. § 1981, and the New Jersey Law Against Discrimination (“NJLAD”), N.J.
Stat. Ann. § 10:5-1 et seq. Plaintiff also asserts a state common law claim for intentional
infliction of emotional distress (“IIED”). Now before the Court is Defendant’s motion for
summary judgment pursuant to Federal Rule of Civil procedure 56. (ECF No. 19.) Plaintiff
opposes the motion. (ECF No. 23.) The Court has reviewed the parties’ submissions and
proceeds to rule without oral argument. See Fed. R. Civ. P. 78(b). For the reasons stated below,
Defendant’s motion will be granted.
Plaintiff is a 61 year-old African-American female. (ECF No. 21, Plaintiff’s Statement of
[Additional] Undisputed Material Facts (“SAUMF”), ¶¶ 1-2.) In November 2007, she began
working as a human services specialist for Defendant. (ECF No. 19, Defendant’s Statement of
Material Facts (“SUMF”), ¶ 1-3; SAUMF ¶ 6.) In July 2013, when Plaintiff was approximately
58 years old, she applied internally for a position as a provisional training technician. (SAUMF
¶ 9, 13.) She was interviewed for the position by Roger Quintana, Director of Personnel for
Defendant. (SUMF ¶ 5.)
Thereafter, Plaintiff contacted Mr. Quintana by phone to inquire about the status of her
application. (SUMF ¶ 6.) During that conversation, Mr. Quintana informed her that “someone
else” had been offered the position. (Id.) This “someone else” was one of Plaintiff’s coworkers, who was also employed as a human services specialist. (SUMF ¶ 6.) The co-worker
was a female of Egyptian descent, approximately 20 to 25 years of age. (ECF No. 19-2,
Certification of Michael L. Dermody (“Dermody Cert.”), Exhibit B, Deposition of Evon
Grossberg (Grossberg Dep.”), 21:12-21:15; SUMF ¶ 15.) She was not African-American.
Grossberg Dep. 21:14-21:15)
Subsequently, Plaintiff spoke with two representatives from the union to which she
belonged. (Grossberg Dep. 22:25-23:21.) During that conversation, Plaintiff “let [the
representatives] know that [she] put in for a position as provisional training tech,” that a coworker was “being promoted in this position,” and that she “wanted to know why [she] was not
considered for the job.” (Id.) The union representatives “said [that] they would get back to
Plaintiff on it.” (Id. at 23:22-23:24.) Immediately thereafter, Plaintiff began a voluntary monthlong furlough, from early August 2013 to early September 2013. (SUMF ¶ 9; Grossberg Dep.
24:9-25:3.) During that time, Plaintiff had no contact with Mr. Quintana, her co-workers, or the
union representatives. (Grossberg Dep. 29:4-15.) She did fill out an online intake questionnaire
for the Equal Employment Opportunity Commission (“EEOC”), in anticipation of a visit to an
EEOC field office. (ECF No. 22, Certification of Evon Grossberg in Opposition to Defendant’s
Motion for Summary Judgment (“Grossberg Cert.), ¶ 26, Exhibit E.) Plaintiff would later file
charges of discrimination with the EEOC against Defendant in November 2013. (SUMF ¶ 12;
Grossberg Dep. 26:3-6, 27:3-9.)
During the furlough, in early September 2013, Mr. Quintana sent Plaintiff a memo
informing her that Defendant had in fact decided to extend Plaintiff an offer for the provisional
training technician position. (SUMF ¶ 10; Grossberg Dep., 29:21-30:1, 30:23-31:1.) Plaintiff
received this memo on September 9, 2013, her first day back from furlough. (Grossberg Dep.,
28:16-21; 30:23-31:4.) On that day, Plaintiff’s supervisor also told her that Plaintiff had received
the promotion, and Plaintiff began work as a provisional training technician immediately.
(SUMF ¶ 11; Grossberg Dep., 32:5-12; 39:2-7.) The co-worker, who had also been offered the
position, began work on that day as well. (SUMF ¶ 13; Grossberg Dep., 39:2-7.) Subsequently,
Plaintiff passed a civil service exam relating to the position, and she became a permanent
training technician in June 2014. (SUMF ¶ 11, 21.) As of August 2016, when Plaintiff’s
deposition was taken for the instant action, Plaintiff was still employed as permanent training
technician. (SUMF ¶ 22.)
After Plaintiff’s promotion in September 2013, several incidents occurred involving
Plaintiff’s co-workers which are relevant to the instant action. In October 2013, a co-worker
“aggressively” placed papers in front of Plaintiff. (Dermody Cert., Exhibit C, Diary-like
document from October 2013 to April 2, 2014 (“Plaintiff Diary”), at 3.) In November 2013, a
different co-worker stated to Plaintiff’s supervisor that “old timers” were the “ones . . . leaving
[work] early,” a comment that Plaintiff heard. (Id. at 5.) In February 2014, several months later,
a different co-worker “interrupted” Plaintiff while Plaintiff was helping a student and took
control of a keyboard and mouse that Plaintiff was using. (Id. at 8.) In March 2014, Plaintiff
asked a co-worker whether the co-worker “was . . . ok,” to which the co-worker replied that “she
was fine.” (Id. at 9.) After Plaintiff then “asked what is going on,” the co-worker said that “she
felt threatened” by Plaintiff. (Id. at 9.) In June 2014, a different co-worker “slammed” papers
down on a table in front of Plaintiff. (Id. at 13.) Later that day, the same co-worker stated that
Plaintiff thought of herself as “holy and nice.” (Id.) Approximately one year later, in June 2015,
Plaintiff’s supervisor stated to Plaintiff that her employment could be terminated even though
Plaintiff was by that time a permanent training technician. (Id. at 15.)
Plaintiff commenced the instant action in February 2015. Her complaint alleges claims
for race-based employment discrimination, hostile work environment, and retaliation in violation
of Title VII (Counts IV–VI) and Section 1981 (Counts VII–IX); age-based employment
discrimination, hostile work environment, and retaliation in violation of the ADEA (Counts I–
III) and NJLAD (Counts X–XII); and common law IIED (Count XIII). Defendant now moves
for summary judgment, raising essentially three arguments. First, Defendant contends that
Plaintiff’s Section 1981 claims are barred by 42 U.S.C. § 1983, part of the Civil Rights Act of
1871, because the latter is the exclusive federal remedy for violations of rights guaranteed by
Section 1981 by state governmental units. Second, Defendant argues that Plaintiff cannot
establish a prima facie case for any of her remaining employment-related claims under Title VII,
the ADEA, and NJLAD, as required by the burden shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). Third,
Defendant argues that Plaintiff’s IIED claim is barred by New Jersey’s Tort Claims Act
(“TCA”), N.J. Stat. Ann. § 59:1-1 et seq., because Plaintiff failed to file a ‘notice of claim’ in
accordance with the TCA.
A moving party is entitled to summary judgment 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). A factual dispute is genuine if a reasonable jury could return a
verdict for the non-movant, and it is material if, under the substantive law, it would affect the
outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S. Ct. 2505, 91 L.
Ed. 2d 202 (1986).
On a motion for summary judgment, the moving party bears the burden of establishing
the basis for its motion and of demonstrating that there is no genuine issue of material fact.
Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 91 L. Ed. 2d 265 (1986). If the
moving party satisfies its burden, the nonmoving party must show that a genuine issue as to a
material fact exists. Jersey Cent. Power & Light Co. v. Lacey Twp., 772 F.2d 1103, 1109 (3d
Cir. 1985). The nonmoving party cannot rest on mere allegations and instead must present actual
evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248;
Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995).
“[U]nsupported allegations . . . and pleadings are insufficient to repel summary judgment.”
Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990).
Plaintiff’s Section 1981 Claims
As Defendant suggests, Section 1983 is “the exclusive federal remedy for violations of
rights guaranteed by Section 1981 by state governmental units.” McGovern v. City of Phila.,
554 F.3d 114, 117 (3d Cir. 2009); see Jett v. Dall. Indep. Sch. Dist., 491 U.S. 701, 731, 109 S.
Ct. 2702, 105 L.Ed.2d 598 (1989). Thus, Section 1983 precludes Section 1981 claims against
state and local governments. For this reason, Plaintiff must bring any claims against Defendant
based on purported violations of Section 1981 under Section 1983. Id. at 121-22. Because
Plaintiff has failed to do so, the Court will grant summary judgment in favor of Defendant as to
Plaintiff’s Section 1981 claims.
Plaintiff’s Remaining Employment Discrimination Claims
Under Title VII, the ADEA, and NJLAD, it is unlawful for an employer to fail or refuse
to hire an individual; to discharge an individual; or otherwise to discriminate against any
individual with respect to the compensation, terms, conditions, or privileges of his or her
employment because of a protected characteristic of that individual. 42 U.S.C. § 2000e-2(a)(1);
N.J. Stat. § 10:5-12(a), or age, 29 U.S.C. § 623(a)(1); N.J. Stat. § 10:5-12(a). Under each of
these statutes, a claim for employment discrimination that relies on circumstantial evidence is to
be analyzed under the burden-shifting framework set forth in McDonnell Douglas. Moore v.
City of Phila., 461 F.3d 331, 342 (3d Cir. 2006); Willis v. UPMC Children’s Hosp. of Pittsburgh,
808 F.3d 638, 644 (3d Cir. 2015); Battaglia v. United Parcel Serv., Inc., 214 N.J. 18, 546, 70
A.3d 602 (2013). Under that framework, a plaintiff must first establish a prima facie case for
employment discrimination. The elements of that prima facie case are essentially the same under
Title VII, the ADEA, and NJLAD: a plaintiff must show that (1) he or she was a member of a
protected class under the applicable statute; (2) he or she was qualified for the position in
question; (3) he or she suffered an adverse employment action; and (4) the adverse action gives
rise to an inference of unlawful discrimination. Jones v. Sch. Dist. Of Philadelphia, 198 F.3d
403, 412 (3d Cir. 1999); Willis, 808 F.3d at 644 (citing Burton v. Teleflex Inc., 707 F.3d 417,
426 (3d Cir. 2013)); Victor v. State, 203 N.J. 383, 408, 4 A.3d 126, 141 (2010). If a plaintiff
succeeds in establishing a prima face case, the defendant employer must articulate a legitimate
nondiscriminatory reason for its conduct. If the employer succeeds in demonstrating such a
reason, the plaintiff must show that the employer’s proffered reason was pretextual.
As the language of Title VII, the ADEA, and NJLAD each suggest, a plaintiff may
establish the third element of his or her prima facie case—an adverse employment action—by
showing that the employer failed or refused to hire the plaintiff or that the employer discharged
him or her. Alternatively, a plaintiff may show that he or she was the subject of employer
conduct that was “‘serious and tangible enough to alter [the] employee’s compensation, terms,
conditions, or privileges of employment.’” Storey v. Burns Int’l Sec. Servs., 390 F.3d 760, 764
(3d Cir. 2004) (quoting Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001)). With respect to
the second of these showings, sufficiently “serious and tangible” adverse conduct, the Third
Circuit has instructed that “direct economic harm is an important indicator.” Durham Life Ins.
Co. v. Evans, 166 F.3d 139, 153 (3d Cir. 1999). Indeed, even indirect economic harm, such as
when an employee’s earning potential “substantially decreases,” is an indictor. Id. Accordingly,
the Third Circuit has found that conduct which does not bring about a material change in an
employee’s salary or benefits, such as a lateral transfer or a mere change of title, does not
constitute an adverse employment action under these circumstances. See Fiorentini v. William
Penn Sch. Dist., 665 F. App’x 229, 235 (3d Cir. 2016).
Here, the record before the Court contains no evidence from which a trier of fact could
reasonably infer that Plaintiff suffered employer conduct that rose to the level of an adverse
employment action. In the first place, there is no evidence from which a fact-finder could
reasonably conclude that Defendant failed or refused to hire Plaintiff. Although, as is
undisputed, Defendant’s representative initially told Plaintiff that Defendant would not be
extending her an offer, that offer was made shortly thereafter. Plaintiff was not required to
submit a new application or interview again for the position, and she began working in the new
position on the same day as the co-worker who had received an earlier offer. The undisputed
facts also show that Plaintiff has continued in this position through the pendency of this
Second, the motion record contains no evidence from which a trier of fact could
reasonably conclude that Plaintiff was the subject of conduct that was serious and tangible
enough to alter the compensation, terms, conditions, or privileges of her employment. For
example, Plaintiff has brought forth no evidence showing that the delay in the offer she received
resulted in any delay in her start date or any delay in a salary increase that she would otherwise
Therefore, with respect to Plaintiff’s race-based and age-based employment
discrimination claims, the Court finds that Plaintiff has failed to bring forth evidence creating a
genuine issue as to whether Plaintiff suffered an adverse employment action. Consequently, the
Court will grant summary judgment in favor of Defendant as to Plaintiff’s employment
Plaintiff’s Hostile Work Environment Claims
Claims for hostile work environment under Title VII, the ADEA, and NJLAD are also to
be analyzed under the McDonnell Douglas framework.1 To establish a prima facie case for
hostile work environment under Title VII or the ADEA, a plaintiff must show that (1) he or she
suffered intentional discrimination because of a protected characteristic, such as race or age; (2)
the discrimination was severe or pervasive; (3) it detrimentally affected the plaintiff; (4) it would
have detrimentally affected a reasonable person in like circumstances; and (5) there is a basis for
vicarious liability. Mandel v. M&Q Packaging Corp., 706 F.3d 157, 167 (3d Cir. 2013) (citing
Jensen v. Potter, 435 F.3d 444, 449 (3d Cir. 2006)); Ullrich v. United States Sec'y of Veterans
Affairs, 457 F. App’x 132, 140 n.6 (3d Cir. 2012) (citations omitted). To establish a prima facie
case for a hostile work environment under NJLAD, a plaintiff must show that (1) he or she was a
member of a protected class; (2) he or she was subjected to conduct that would not have occurred
but for that protected class; and (3) the conduct was severe or pervasive enough to make to alter
the conditions of employment. Victor, 203 N.J. at 409 (citing Lehmann v. Toys ‘R’ Us, Inc., 132
N.J. 587, 603-04 (1993)).
Under each of these statutes, then, a prima facie case for hostile work environment
requires a showing that an employer’s discriminatory conduct was “pervasive” or “severe”
enough to negatively “alter the conditions of [the plaintiff’s] employment and create an abusive
working environment.” Nat’l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116, 122 S. Ct.
2061, 153 L. Ed. 2d 106 (2002); Meritor, 477 U.S. at 67; Bouton v. BMW of N. Am., Inc., 29
F.3d 103, 106 (3d Cir. 1994); Shepherd v. Hunterdon Developmental Ctr., 174 N.J. 1, 20, 803
Title VII’s and NJLAD’s prohibitions extend the creation of a hostile work environment. Meritor Sav. Bank, FSB
v. Vinson, 477 U.S. 57, 67, 106 S. Ct. 2399, 2405, 91 L.Ed.2d 49, 60 (1986); Lehmann v. Toys ‘R’ Us, Inc., 132
N.J. 587, 600 (1993). The Third Circuit has assumed, without deciding, that hostile work environment claims are
also cognizable under the ADEA. See Culler v. Sec’y of United States Veterans Affairs, 507 F. App'x 246, 249 n.3
(3d Cir. 2012).
A.2d 611, 623 (2002); Lehmann, 132 N.J. at 626. To determine whether a plaintiff has satisfied
this requirement, “a court must consider the totality of 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 employee’s work
performance.’” Mandel, 706 F.3d at 168 (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23,
114 S. Ct. 367, 126 L. Ed. 2d 295 (1993)).
The Supreme Court has instructed that “simple teasing, offhand comments, and isolated
incidents (unless extremely serious) will not amount to discriminatory changes in the ‘terms and
conditions of employment’” sufficient to sustain a hostile work environment claim. Faragher v.
City of Boca Raton, 524 U.S. 775, 788, 118 S. Ct. 2275, 141 L. Ed. 2d 662 (1998); see Daniels
v. Sch. Dist. of Phila., 776 F.3d 181, 194 (3d Cir. 2015). It has reasoned that such a bar is
necessary to “ensure that Title VII [and similar statutes] do not become a ‘general civility
code.’” Id. (quoting Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80-81, 118 S. Ct.
998, 140 L. Ed. 2d 201(1998)). Thus, “[t]he mere utterance of an epithet, joke, or inappropriate
taunt that may cause offense does not sufficiently affect the conditions of employment to
implicate . . . liability.” Weston v. Pennsylvania, 251 F.3d 420, 428 (3d Cir. 2001)).
In the present case, considering the totality of circumstances, no fact finder could
reasonably conclude that the few offhand remarks of Plaintiff’s co-workers, although potentially
offensive to Plaintiff, rose to the level “pervasive” or “severe” discrimination. Nor could a fact
finder reasonably conclude that Defendant’s workplace “permeated with discriminatory
intimidation, ridicule, and insult.” AMTRAK v. Morgan, 536 U.S. 101, 116, 122 S. Ct. 2061,
2074 (2002) (quoting Harris, 510 U.S. at 21). Plaintiff has also supplied no evidence showing
that the conditions of her employment were materially altered as a result of these remarks.
Simply put, the remarks are precisely the sort of isolated comments that the Third Circuit has
held to be insufficient as a matter of law to sustain a hostile work environment claim.2
Therefore, the Court finds that Plaintiff has failed to bring forth evidence sufficient to
create a genuine issue as to whether she can establish a prima facie case for her hostile work
environment claims under Title VII, the ADEA, or NJLAD. Consequently, the Court will grant
summary judgment in favor of Defendant as to those claims.3
Plaintiff’s Retaliation Claims
Under Title VII, the ADEA, and NJLAD, it is unlawful for an employer to retaliate
against a person who participates in a “protected activity.” 29 U.S.C. § 623(d); N.J.S.A. 10:512(d); 42 U.S.C. § 2000e-3(a). Claims for retaliation under these statutes are also to be analyzed
under the McDonnell Douglas framework. To establish a prima face case for retaliation under
In her Statement of Additional Facts and supporting certification, Plaintiff refers generally to “constant harassment,
ridicule, verbal assault by her supervisors, physical assault, constant critici[sm] for work performance issues
without any valid reason, unreasonabl[e] critici[sm] [of] the way she was teaching, exclu[sion] . . . from workrelated matters, including training programs, being ignored by co-workers and her supervisors, . . . , [and] being
treated as an outcast by co-workers and management, . . . .” (SAUMF ¶ 43; Grossberg Cert. ¶ 45.) Plaintiff states in
her certification that such events are “contained in memos I wrote, many of which are included as part of exhibit C
in the Certification of Michael Dermody.” (Grossberg Cert. ¶ 46.) Such generalized statements do not constitute the
sort of “specific facts” necessary to create a genuine issue of material fact on a motion for summary judgment. See
Fed. R. Civ. P. 56(e). Plaintiff’s reference to the “memos [she] wrote . . . included as [a] part of exhibit C” also does
not constitute a proper “citat[ion] to particular parts of materials in the record,” as required by Fed. R. Civ. P. 56(c).
Accordingly, both the generalized statements and Plaintiff’s general reference to memos she wrote may be
disregarded for purposes of this motion for summary judgment.
This Court issued its initial opinion explaining the reasons for granting summary judgment in favor of Defendant
on July 13, 2017. On July 14, 2017, the Third Circuit issued an opinion in Castleberry v. STI Grp., No. 16-3131,
2017 U.S. App. LEXIS 12611 (3d Cir. July 14, 2017), in which it clarified the standard for establishing a prima
facie case for hostile work environment under Section 1981 and similar statutes, such as Title VII and the ADEA.
In particular, the Third Circuit stated that, to prevail on a hostile work environment claim, a plaintiff need only show
that the alleged discrimination was “severe or pervasive,” Castleberry, 2017 U.S. App. LEXIS 12611, at * 6
(emphasis in original), i.e. with a disjunctive, rather than ‘severe and pervasive’ or ‘pervasive and regular.’ In this
Court’s initial opinion, dated July 13, 2017, it cited and followed Third Circuit and Supreme Court case law which
had used the disjunctive formulation that the Third Circuit explicitly adopts in Castleberry. Nonetheless, it bears
noting that, having considered the Third Circuit’s clarification, it is still apparent to this Court that Plaintiff has
failed to establish intentional discrimination which was “severe” or “pervasive” for purposes of this motion for
summary judgment. Specifically, Plaintiff has failed to establish that any of Plaintiff’s co-workers’ remarks was
“severe” enough to sustain a hostile work environment claim, and she has failed to establish that the remarks as a
whole were “pervasive” enough to sustain such a claim. Simply put, no trier of fact could reasonably draw either
conclusion from the evidence before the Court on the instant motion. Therefore, the Third Circuit’s opinion in
Castleberry does not alter this Court’s initial conclusions.
any of the statutes, a plaintiff must show that (1) he or she engaged in a protected activity under
the applicable statute; (2) he or she suffered an adverse employment action either after or
contemporaneous with the protected activity; and (3) there is a causal link between the protected
activity and the adverse employment action. Daniels, 776 F.3d at 193; Moore, 461 F.3d at 34041; Battaglia v. United Parcel Service, Inc., 214 N.J. 518, 547 (2013); Fogleman v. Mercy Hosp.,
Inc., 283 F.3d 561, 567 (3d Cir. 2002).
For purposes of a retaliation claim, an employer’s conduct constitutes an adverse
employment action if it “might . . . have dissuaded a reasonable worker from making or
supporting a charge of discrimination.’” Id. (quoting Burlington N. & Santa Fe Ry. v. White,
548 U.S. 53, 68, 126 S. Ct. 2405, 2415, 165 L.Ed.2d 345, 360 (2006)). To establish the
causation element of a prima facie case for retaliation, a plaintiff must provide evidence
“sufficient to raise the inference that her protected activity was the likely reason for the adverse
employment action.” Kachmar v. SunGard Data Systems, Inc., 109 F.3d 173, 177 (3d Cir. 1997)
(internal quotation marks omitted).
A plaintiff can satisfy the causation requirement in two ways. One is by showing that the
“temporal proximity” between the protected activity and the adverse action is “unduly
suggestive” of a retaliatory motive. Daniels, 776 F.3d at 196 (quoting LeBoon v. Lancaster
Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007)). Notably, the Third Circuit has held
that a period of three weeks is not unduly suggestive. Thomas v. Town of Hammonton, 351 F.3d
108, 114 (3d Cir. 2003). A second way is by showing that the “the proffered evidence, looked at
as a whole, [is] suffic[ient] to raise the inference.” Farrell v. Planters Lifesavers Co., 206 F.3d
271, 280 (3d Cir. 2000). To this end, the Third Circuit has held that relevant evidence includes
“any intervening antagonism by the employer, inconsistencies in the reasons the employer gives
for its adverse action, and any other evidence suggesting that the employer had a retaliatory
animus when taking the adverse action.” Daniels, 776 F.3d at 196 (citing LeBoon, 503 F.3d at
232-33; Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007).
Here, the record before the Court contains no evidence from which a trier of fact could
reasonably conclude that Plaintiff suffered an adverse employment event. Surely, Plaintiff’s
promotion in early September does not support such a conclusion. The few offhand remarks of
Plaintiff’s co-workers, made months and years later, do not either. Though they may have been
unwelcome, no trier of fact could reasonably conclude that they would have dissuaded a
reasonable worker from pursuing a charge of discrimination.
Additionally, the record before the Court contains no evidence indicating a causal
connection between any conceivable adverse employment action by Defendant and Plaintiff’s
protected activities. Certainly, the statement that Defendant would not be extending Plaintiff an
offer could not bear a causal relationship to such activities because it pre-dated them. The
remarks of Plaintiff’s co-workers, on the other hand, were they assumed to constitute an adverse
employment action, occurred far too long after Plaintiff’s protected activities to be ‘unduly
suggestive’ of a retaliatory motive, and Plaintiff has supplied no other evidence that would
justify such an inference of causation.
Consequently, the Court finds that Plaintiff has failed to come forward with evidence that
would create a genuine issue as to whether Plaintiff has satisfied the second and third elements of
her Title VII, the ADEA, and NJLAD retaliation claims. Therefore, the Court will grant
summary judgment in favor of Defendant as to those claims.
Plaintiff’s IIED claim
Tort actions brought under New Jersey law against public entities are governed by the
TCA. Brennan v. Norton, 350 F.3d 399, 431 (3d Cir. 2003); Velez v. City of New Jersey, 180
N.J. 284, 286, 850 A.2d 1238 (2004); N.J. Stat. Ann. § 59:2-1; N.J. Stat. Ann. § 59:1-3. Under
the TCA, litigants who wish to file claims against a local public entity must initially file a ‘notice
of claim’ with the entity itself. N.J. Stat. Ann. § 59:8-3; N.J. Stat. Ann. § 59:8-7. That notice of
claim must be filed within 90 days of “accrual of the claim.” N.J. Stat. Ann. § 59:8-8.
Alternatively, if “leave to file [a] late notice” has been granted, the notice of claim must be filed
within one year. N.J. Stat. Ann. § 59:8-9.
Here, Plaintiff has come forward with no evidence indicating that she filed a notice of
claim with Defendant within the 90-day period required by the TCA. Therefore, the Court will
grant summary judgment in favor of Defendant as to the IIED claim.
Accordingly, for the foregoing reasons, Defendant’s motion for summary judgment,
pursuant to Fed. R. Civ. P. 56, is GRANTED. An appropriate order shall issue.
/s Stanley R. Chesler
STANLEY R. CHESLER
United States District Judge
Dated: July 18, 2017
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