MICHAELS v. RUTGERS UNIVERSITY NEW JERSEY MEDICAL SCHOOL et al

Filing 105

OPINION. Signed by Chief Judge Jose L. Linares on 2/14/2019. (sm)

NOT FOR PUBLICATION
UNiTED STATES DISTRiCT COURT
DISTRICT OF NEW JERSEY

JENNIFER MICHAELS, M.D.,
Civil Action No. 15-7603 (JLL)
Plaintiff,
OPiNION

V.

RUTGERS UNIVERSITY NEW JERSEY
MEDICAL SCHOOL, et cii.,
Defendants.
LINARES, Chief District Judge.

This matter comes before the Court by way of Defendants Rutgers University New Jersey
Medical School (‘Rutgers”) and Barry Levin, M.D.’s motion for summary judgment or, in the
alternative, to strike Plaintiff Jennifer Michaels. M.D.’s claim for

punitive

damages, pursuant to

Federal Rule of Civil Procedure 56 and Local Civil Rule 56.1. (ECF No. 83). Plaintiff has filed
opposition, (ECF No. 96), and Defendants have replied thereto, (ECF No. 102). The Court decides
this matter without oral argument pursiant to Federal Rule of Civil Procedure 78. For the reasons
set forth below, the Court grants Defendants’ motion to the extent that it seeks judgment on
Plaintiffs claim for retaliation in violation of the Family and Medical Leave Act, 29 U.S.C.
(“FMLA”), but denies Defendants’ motion as to all other claims.

§ 2601

I.

BACKGROUND’

A. Uncontested facts

On September 11, 1987, Plaintiff began working as an Assistant Professor for Defendant
Rutgers. (Defs.’ SMF ¶ 8). From 2011 through 2014, the period relevant to this litigation, Plaintiff
was a non-tenured Assistant Professor in Defendant Rutgers’ Neurology Department. (Defs.’ SMf

¶

10). Plaintiffs status as non-tenured meant that she could be reappointed for terms of one to

five years. (Defs.’ SMF

¶

10). Plaintiffs responsibilities included: (I) “on service” rounds which

consisted of patient consults; (2) “grand rounds” which entailed clinical conferences; (3) teaching
seminar courses; and (4) co-chairing the Muscular Dystrophy Association Clinic (“MDAC”) with
Dr. John Bach. (Defs.’ SMf

¶ 24—29).

In June 2011, Defendant Levin was appointed Interim Chair of the Neurology Department.
(Defs.’ SMf

¶

17—12).

Upon his appointment, Defendant Levin met with each member of the

Neurology Department in order to discuss workload and maximize efficiency. (Defs.’ SMf

¶ 20).

Productivity was measured by a physician’s teaching. research. and Relative Valtte Units
(“RVU”), which is a statistical measure of the value of services rendered to patients. (Defs.’ SMf
¶22).
B. Defendants’ Version of Events

1. Plaintiffs Initial Performance Review
During his first few meetings with Plaintiff, Defendant Levin set goals for Plaintiff, which
included increasing clinic productivity and patient registration. (Defs.’ SMF

¶ 21).

According to

Defendants, Plaintiffs work for the MDAC predominantly involved patient visits “as opposed to

This background is taken from the parties’ statements of material facts. pursuant to Local Civil Rule 56.1. (ECF No.
83-2, Defendants’ Statement of Material Facts (“Defs.’ SMF): FCF No. 96-1, Plaintiffs Response to Defendants’
Statement of Material Facts: ECF No. 96-2. Plaintiffs Statement of Supplemental Facts (“P1’s SMF”): ECF No.
102-2. Defendants’ Reply to Plaintiffs Statement of Supplemental Facts).

achieving academic responsibilities” for Defendant Rutgers and yielded a relatively low RVU
score. (Defs.’ SMF ¶J 29—31, 33—35). This clinical work, in combination with Plaintiffs teaching
and “rounds” responsibilities, was allegedly insufficient to meet the Neurology Department’s
productivity standards. (Defs.’ SMF

¶ 24—27,

3 5—37). Despite Plaintiffs promises, Defendants

claim that Plaintiff failed to increase patient visits in the MDAC. (Defs.’ SMF

¶ 37).

2. Plaintiffs Assigned Clinical Work
In or around the Spring of 2012, Defendant Levin assigned Plaintiff to the Ambulatory
Care Clinic (“ACC”), supposedly to provide Plaintiff with an opportunity to increase her RVU and
“fulfill the Neurology Department’s fiscal responsibility.” (Defs.’ SMF ¶ 38). In at least one other
circumstance, Defendant Levin allegedly assigned other physicians who were younger to the ACC
to give them the opportunity to raise their RVU, (Defs.’ SMF

¶ 39_40).2

Defendants claim that

Plaintiff struggled to maintain her responsibilities to both the MDAC and ACC, which led
Defendant Levin to repeatedly notify Plaintiff of his concerns regarding her productivity levels.
(Defs.’ SMf4l—48. 50).
In february 2013, a physician emailed Defendant Levin to inform him that Plaintiffs
performance in the ACC was deficient, because Plaintiff was too slow with seeing patients. (Defs.’
SMF

¶

53).

According to Defendants. medical residents and students also complained that

working with Plaintiff negatively affected their learning experience and ability to see all of their
patients. (Defs.’ SMF

¶

55—56). Supposedly as a result of these complaints, Defendant Levin

informed Plaintiff that: (i) clinic staff would schedule her appointments at a rate of one hour for
new patients and thirty minutes for follow-up patients; and (ii) she would no longer have the
assistance of medical residents or students. (Defs.’ SMF

2

¶

54, 56). Despite these complaints,

It is worth noting, and shalt be relevant later on, that all of these physicians mentioned by Defendants are women.
(See Defs.’ SME MI 12, 40).

3

however, Defendants concede that Plaintiff increased her RVU score through her work with the
ACC. (Defs.’ SMf

¶J 58).

3. Plaintiffs Vacation & fMLA Leave Request
On May 20, 2013, Plaintiff submitted several vacation requests for June and July of 2013,
which included five days that Plaintiff was scheduled to work in the ACC. (Defs.’ SMF
60).

¶I

59—

According to Defendants, Defendant Levin denied Plaintiffs request, as many of the

requested days overlapped with her ACC responsibilities, and he had his assistant inform Plaintiff
of his decision. (Defs.’ SMF

¶ 61—62).

Plaintiff allegedly failed to recognize the statement of

Defendant Levin’s assistant as having any authority and was nevertheless absent from work on the
requested vacation days. (Defs.’ SMF

¶ 62—63).

Upon learning that Plaintiff had taken off on

her requested vacation days and that she had only attended one clinic day in

June

2013, Defendant

Levin sent Plaintiff a formal letter of reprimand in July 2013. which was forwarded to the Vice
Dean of Defendant Rcitgers. (Defs.’ SMF ¶ 65, 67). A few days later. Defendant Levin addressed
all of the clinical faculty regarding “the importance of attending scheduled ACC[s].” (Defs.’ SMF
¶68).
As discussed in more detail below, infra Section I.B.3, it is uncontested that Plaintiff then
requested FMLA leave, which was approved by Defendant Levin.
4. Plaintiffs Subsequent Performance Review & Termination
On September 11, 2013, Plaintiff received her performance evaluation from Defendant
Levin for the period of July 2012 through June 2013. (Defs.’ SMf

¶

92). At the evaluation,

Defendant Levin recognized Plaintiffs talent as “possibly the best neuromuscular physician in the
state of New Jersey,” but further stated that she: (1) provided deficient service to the Neurology
Department: (ii) did minimal training: and (iii) “had a limited scholarly role.” (Defs.’ SMF

4

¶ 93).

In reaching this conclusion, Defendant Levin employed a separate measurement which looked at
Plaintiffs patient encounters and overall productivity. (Defs.’ SMF

¶JJ 94—98).

Defendant Levine

allegedly utilized this unique measurement to grade Plaintiffs performance because he wanted to
determine “what was fair to ask [Plaintiffj to do.” (Defs.’ SMF

¶ 94—98).

Defendant Levin

stressed to Plaintiff that her performance was “well below acceptable levels” and must be improved
over the following year. (Defs.’ SMF

Defendant Levin also gave Plaintiff specific goals to

¶ 99).

meet by the beginning of 2014, which inclctded seeing a minimum of five patients per four hours
during her weekly ACC duties. (Defs.’ SMf

¶

101).

In October 2013, Plaintiff, through counsel, sent a letter to the Dean of Defendant Rutgers,
alleging that she has been discriminated against based on her gender and age. (Defs.’ $Mf ¶ 104—
06). The letter was referred to Defendant Rutgers’ Office of Employment Equity (“OEE”), which
then attempted to contact Plaintiff in order to investigate her claims. (Defs.’ SMF

¶!f

107—09).

According to Defendants, Plaintiff failed to schedcile a mandatory interview with the OEE, and
therefore no further action was taken on her complaints. (Defs.’ SMF

q

109—Il).

During the months following Plaintiffs evaluations, Defendants allege that she did not
improve her performance and continued to take an allegedly excessive amount of time with each
clinic patient.

(Defs.’ SMF

¶

119—21).

When Plaintiffs continued appointment was being

considered in early 2014, Defendant Levin recommended to the Clinical Integration Group of
Defendant Rutgers—i. e., the board that determines faculty appointments—that Plaintiffs contract
not be renewed. (Defs.’ SMf

¶J

124—25). On February 26, 2014, Plaintiff was notified by way

of a letter from the Dean of Defendant Rutgers that her

appointment

that her position would expire on June 30, 2014. (Defs.’ SMF

5

¶

wocild not be renewed and

122—29).

C. Ptaintiff’s Version of Events

L Plaintiffs Performance & Defendant Levin’s Condctct
According to Plaintiff, Defendant Levin’s productivity critiques were false and disparate.
Specifically, Plaintiff claims that, contrary to Defendants’ allegations, she increased her
productivity each time it was requested by Defendant Levin, which was evidenced by: (i) a 33%
increase in her RVU productivity score from 2011 to 2013; (ii) continued work with the MDAC
and teaching seminar courses; (iii) an increase in patient

visits

of around 45% since 2009; (iv)

possessing the fifth highest RVU score in 2013 otit of the Neurology Department’s twelve
physicians; (v) “working 12—hour days [in 2013], [with] five months on inpatient service in
addition to her outpatient responsibilities”; and (vi) emails from other doctors sent to Defendant
Levin praising Plaintiffs work. (P1.’s SMF

¶ 32—33,

88, 146—51, 221).

In response to these improvements, Defendant Levin allegedly added new and challenging
responsibilities to Plaintiffs schedule in an
(Pl.’s SMF

¶]

71—74).

attempt to

move “the goal post” fcirther away from her.

For example, after Plaintiff raised her RVU score, Defendant Levin

allegedly required her to obtain a 20% increase in her productivity score by the following year,
i.e., 2014.

(Pl.’s SMF

91).

One physician, Dr. Hajart, admitted that such an increased

requirement to Plaintiffs RVU score “seemed arbitrary.” (Pl.’s SMF

¶

92). Plaintiff further

claims that Defendant Levin used the tallying of patient encounters to measure Plaintiffs
productivity in addition to her RVU score, which was not used to measure the productivity of any
other physician in the Neurology Department. (PI.’s SMF

¶J] 91, 93, 96—99,

178). Plaintiff claims

that Defendant Levin used these inaccurate critiques and ever-changing requirements as an
to berate and yell at Plaintiff. (See Pl.’s SMF

¶

excuse

25, 79, 130, 162, 164, 180). Plaintiff further

claims that Defendant Levin used Plaintiffs allegedly fabricated underperformance as a pretext to

6

revoke several of her privileges, including her abilities to teach and use a research assistant. (Pl.’s
SMf

63—67).
Moreover, Defendant Levin supposedly minimized Plaintiffs contributions to the

department in his communications with other physicians. for example, Defendant Levin allegedly
falsely claimed that Plaintiff increased her RVU score by having

“no

other responsibilities,” and
(Pl.’s SMf

that Plaintiff should be able to raise her RVU score even higher.

¶J

90—91).

Additionally, Defendant Levin allegedly undermined Plaintiffs clinical work by saying that the
amount of time she spent with patients was “inordinate.” (Pl.’s SMF

¶

176—77). According to

Plaintiff, Defendant Levin also spoke poorly of Plaintiff in his emails to other physicians—for
example, he forwarded Plaintiffs request for leave to another physician with the statement “Here
we (I) go again,” and told a different physician that he deserved “a purple heart” for sitting in on
Plaintiffs performance review. (Pl.’s $MF

¶

183, 214). As time went on, and Defendant Levin

allegedly became more hostile towards her, Plaintiff claims she experienced anxiety whenever she
was contacted by Defendant Levin. (Pl.’s SMf

¶J 79.

$7).

According to Plaintiff, Defendant Levin was far more lenient to Plaintiffs younger male
colleagues, despite the fact that they committed worse offenses and had lower RVU scores than
Plaintiff (Pl.’s SMF ¶i 174, 178). For example. Dr. Souayah. a male doctor twenty years younger
than Plaintiff, was never reprimanded or otherwise punished by Defendant Levin despite the fact

that he allegedly: (i) overbilled; (ii) was audited by Medicare and forced to refund money and (iii)
was at one point described by Defendant Levin as “the wor[st] offender.” (Pl.’s SMf

¶ 310).

Additionally, Plaintiff claims that only women were required to take clinical positions outside of
their area of specialty, such as Plaintiff being assigned to the ACC. (Pl.’s SMF

7

¶ 62).

2. Plaintiffs Vacation Request & Letter to Defendant Levin
In or around May 201 3, Defendant Levin allegedly refused to approve or deny Plaintiffs

“use it or lose it” vacation time until after the requested dates had passed. (Pl.’s SMF

¶ 101—06).

Plaintiff supposedly misunderstood Defendant Levin’s lack of a response as permission to take
vacation, and was sent a formal letter of reprimand by Defendant Levin after taking said vacation
time. (P1.’s SMF

¶

107—113). This was the

only

reprimand letter that Plaintiff received in the

twenty-seven years that she worked at Defendant Rutgers. (Pl.’s SMF

¶

132).

After Defendant Levin sent the formal letter of reprimand, and after enduring Defendant
Levin’s alleged hostility towards her, Plaintiff sent a rebuttal letter in July 2013 which described
the “harassment and hostile work environment that she had been subjected to”—including “his
‘systematic berating of the past year’ which left her ‘demeaned and demoralized”—and responded
to several of Defendant Levin’s complaints of insubordination. (Pl.’s SMF’JJ 117—130). Plaintiff
claims that she put Defendant Rutgers on notice of her alleged hostile work environment by
copying the Vice Dean and the Chief of Service of Defendant Rutgers on her letter to Defendant
Levin. (P1’s SMF

q

117, 133). The Associate Dean of Faculty Affairs confirmed receipt of

Plaintiffs letter and stated that same would be placed in Plaintiffs personnel file. (P1. ‘s SMF

¶

136).
Plaintiff claims that Defendant Rutgers was further put on notice of the alleged hostile
work environment by Defendant Levin’s email to the Vice Dean three weeks after she sent her
July 2013 letter, in which Defendant Levin explained that Plaintiff was “telling everyone” that she
was subjected to “a ‘hostile work environment.” (P1’s SMF ¶ 137—39). Defendant Levin asked
the Vice Dean “what protections he would have” if Plaintiff brought an action against him, which
he believed there was “a reasonable chance” that she would. (Pl.’s SMF

8

¶

139—40). The Vice

Dean forwarded Defendant Levin’s email to the counsel for Defendant Rutgers.

¶

(Pl.’s SMF

142—43).
Despite allegedly being put on notice by the July 2013 letter and Defendant Levin’s

subsequent email, neither the Vice Dean nor any other employee of Defendant Rutgers at that time:
(i) investigated Plaintiffs complaints; (ii) contacted Plaintiff about her concerns; or (iii) forwarded
said complaints to the OEE. (Pl.’s SMF ¶ 136, 142, 144, 207). According to Plaintiff, the failure
of the employees of Defendant Rutgers to forward Plaintiffs complaint to the OEE was in direct
violation of Defendant Rutgers’ policy, which states, “[i]f managers and supervisors receive
reports of discrimination or harassment, they are required to refer them immediately to the [OEE],”
regardless of whether the report was provided by the victim or someone else. (Pl.’s SMF

¶ 142—

143). After Plaintiff sent this letter in July 2013 informing Defendant Rutgers abotit Defendant
Levin’s allegedly inappropriate and hostile behavior, Defendant Levin told Plaintiff that she was
required to obtain a 30% increase in her productivity score by 2014. (Pl.’s SMF

¶J

180—81). This

requirement was 10% higher than Defendant Levin’s stated productivity goal for Plaintiff prior to
her sending the July 2013 letter. (Pl.’s SMF

¶

180—8 1).

3. Plaintiffs FMLA Leave Regctest
On or around October 29, 2013, Plaintiff made a written request to Defendant Levin for
leave under the FMLA in order to care for her daughter who was undergoing major surgery. (P1’s
SMF

¶ 213).

Specifically, Plaintiff requested two weeks of FMLA leave beginning on November

25, 2013 followed by a twelve-week period of intermittent leave beginning on December 9, 2013.

(Pl.’s SMF

¶ 215).

During the period of intermittent leave, Plaintiff would work two days a week

“plus night and weekend coverage of the Neurology Department.” (Pl.’s SMF

¶ 215).

Plaintiff

also suggested that her ACC patients be transferred to the MDAC for more efficient treatment

9

while she was on intermittent leave. (Pl.’s SMF

¶ 216).

On or around October 30, 2013, Plaintiff

met with Defendant Levin to discuss her requested FMLA leave. (Pl.’s SMF

¶ 217).

Defendant

Levin allegedly screamed at Plaintiff and stated that he would require her to make up the work that
she missed during her FMLA leave if he was legally able to. (Pl.’s $Mf

¶J 219—20,

223).

The following day, Defendant Levin inquired to the Dean of faculty Affairs as to whether
he could compel Plaintiff to make up the work she would
informed that he could not do so. (Pl.’s SMF

miss

¶ 233—36).

while on F MLA leave, and he was

Defendant Levin then inquired as to

whether he could move Plaintiffs scheduled rotations until after she returned from FMLA leave,
which he was again told was not permitted. (Pl.’s SMF

¶ 237—40).

That same day, Defendant

Levin approved her FMLA requests, but denied her suggestion to transfer the ACC patients to the
MDAC and instead required Plaintiff to spend a half-day per week on a day of her choosing at the
ACC. (Pl.’s SMF

¶ 224—27).

4. Plaintiffs Termination
On January 2, 2014, while Plaintiff was on intermittent FMLA leave, Defendant Levin
contacted the Vice Dean about issuing a non-renewal letter for Plaintiffs appointment. (Pl.’s SMF

¶

253).

On January 21, 2014, following Defendant Levin’s recommendation, the Clinical

Integration Group chose not to reappoint Plaintiff (Pl.’s $Mf

¶J

254—58). As stated above,

Plaintiff was informed on February 26, 2014 that her appointment had not been renewed and that
her employment would terminate effective June 30, 2014. (Pl.’s $MF

¶

275). At the time of

Plaintiffs termination, she was sixty-six years old and the oldest full-time clinician of the
Neurology Department. (P1’s SMF

¶ 20,

317). Upon Plaintiffs departure, Dr. Souayah, a male

doctor who was twenty years younger than Plaintiff and described by Defendant Levin as “the

10

‘wor[st] offender,” was chosen by Defendant Levin to replace Plaintiff as Co-Chair of the MDAC.
(Pl.’s SMF

¶f 310,

315).

D. Procedural History

Accordingly, Plaintiff brought this action on October 20, 2015 against Defendants, seeking
among other things compensatory and punitive damages for the discrimination and retaliation she
was allegedly subjected to by Defendants on the basis of her sex, age, and request for fMLA leave.
(See generally ECF No. 1 (“Compi.”)). Specifically, Plaintiff alleges the following causes of
action against Defendant Rutgers only: (1) Retaliation in Violation of the FMLA (“Count One”);
(ii) Sex Based Discrimination in Violation of Title VII of the Civil Rights Act, 42 U.S.C.

§ 2000e,

et seq. (“Title VII”) (“Count Two”); (iii) Retaliation in Violation of Title VII (“Count Three”);
(iv) Age Based Discrimination in Violation of the Age Discrimination in Employment Act, 29
U.S.C.

§ 621, etseq.

(“ADEA”) (“Count Fottr”); and (v) Retaliation in Violation of ADEA (“Count

five”). (Compl. ¶ 166—214). Additionally, Plaintiff alleges the following causes of action against
both Defendant Rutgers and Defendant Levine, individually: (vi) Sex Based Discrimination in
Violation of the New Jersey Law Against Discrimination, N.J.S.A. 1:05—1 et seq. (“NJLAD”)
(“Count Six”); (vii) Age Based Discrimination in Violation of NJLAD (“Count Seven”); and (viii)
Retaliation in Violation of NJLAD (“Count Eight”). (Compl.

¶ 2 15—45).

Defendants now move

for summary judgment.
II.

LEGAL STANDARD

Summary judgment is appropriate when, drawing all reasonable inferences in the non
movant’s favor, there exists “no genuine dispute as to any material fact” and the movant is entitled
to judgment as a matter of law. See Fed. R. Civ. P. 56(a); Anderson v. Liberty Lobby, Inc., 477
U.S. 242, 255 (1986). “{T]he moving party must show that the non-moving party has failed to

II

establish one or more essential elements of its case on which the non-moving party has the burden
ofproof at trial.” McCabe v. Ernst & Yottng, LLP, 494 F.3d 418, 424 (3d Cir. 2007) (citing Celotex
(017). V.

Catrett, 477 U.S. 317, 322—23 (1986)).

The Court must consider all facts and their reasonable inferences in the light most favorable
to the non-moving party. See Pa. Coal Ass ‘a v. Babbitt, 63 f.3d 231, 236

(3d

Cir. 1995). If a

reasonable jLtror could return a verdict for the non-moving party regarding material disputed
factual issues, summary judgment is not appropriate. See Anderson, 477 U.S. at 249 (“[Alt
the summary judgment stage the judge’s ftinction is not himself to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine issue for trial.”).
III.

ANALYSIS

A. Burden Shifting Framework

In determining this motion for summary judgment, the burden shifting framework
established by the Supreme Court in McDonnell Dotigicts Coip. v. Green, 411 U.S. 792, 802—05
(1973) (“the McDonnell Douglas test”), applies to each of Plaintiffs statutory claims.

See

Lichtenstein v. Univ. of Pittsburgh Med. Ctr.. 691 f.3d 294, 302 (3d Cir. 2012) (applying the
McDonnell Douglas test to a FMLA retaliation claim); Davis

i’.

C/ti ofiVeuai*, 285 F. App’x 899,

903 (3d Cir. 2008) (“Discrimination claims brought under Title VII and NJLAD must be analyzed
according to [the McDonnell Dottglas test]”); Moore

i’.

CTh’ of Phila., 461 F.3d 331, 342 (3d Cir.

2006) (applying the McDonnell Douglas test to a retaliation claim under Title VII); Monaco v. Am.
Gen. Assurance Co., 359 F.3d 296, 300 (3d Cir. 2004) (applying the McDonnell Dotiglas test to
an ADEA claim).
Under the McDonnell Douglas test, a plaintiff bears the initial burden of establishing a
pruna/acie case of unlawful discrimination or retaliation. McDonnell Douglas, 411 U.S. at 802;

12

see also Moore, 461 F.3d at 342

(applying

the McDonnell Douglas test to a retaliation claim). If

the plaintiff succeeds in establishing a prima fitcie case, the burden then shifts to the defendant to
arti cul ate a legitimate, nondiscriminatory reason for the plaintiffs termination.

McDonnell

Douglas, 411 U.S. at 802. If the defendant is able to articulate such a reason, the plaintiff must

then show that the proffered reason was a pretext for a discriminatory decision in order to survive
summary judgment. Id. at 804—05.

Here, Defendants argue that Plaintiff has not established aprima/tcie claim for any of the
Counts in her Complaint and cannot rebut Defendants’ legitimate reason for terminating her

employment based on the qttality of her performance. (See generally ECF No. 83-1). However,
when viewing the facts in a light most favorable to her, Plaintiff has raised material issues of fact
regarding her treatment and termination by Defendants in order for her claims, with the exception
of Count One, to survive summary judgment under the lvicDonnell Douglas test.
B. Step 1: Plaintiff’s Burden to Establish a

Prima

fade Claim

1. FMLA Retaliation
To establish a prima frtcie claim for retaliation in violation of the FMLA, Plaintiff must

show that: (i) she exercised her FMLA rights; (ii) she was subjected to an adverse employment
action; and (iii) there was a causal connection between the exercise of her fMLA rights and the

adverse employment action. SeeHaythtkv. Cl/v ofJohnstown, 386 F. App’x 55,60 (3d Cir. 2010).
“To demonstrate a causal connection [for a FMLA retaliation claim], a plaintiff generally must

show ‘either (1) an unusually suggestive temporal proximity between the protected activity and
the allegedly retaliatory action, or (2) a pattern of antagonism coupled with

timing

to establish a

causal link.” Bud/ian v. Reading hasp. & Med. Ctr., 765 F.3d 245, 25$ (3d Cir. 2014) (quoting
Lauren W cx rd. Jean W v. DeFlaminis, 480 F.3d 259, 267 (3d Cir. 2007)).

Ii

Here, Plaintiff cannot establish aprimct /itcie case for fMLA retaliation because there is no
causal link between her request for FMLA and any adverse employment actions.

Defendant

Levin’s alleged hostile and disparate conduct of Plaintiff occurred both before and after Plaintiff
requested FMLA leave, and ai-e therefore not necessarily connected to the FMLA claim. See
Bntngctrt v. BellSouth Telecomms., Inc., 23 1 F.3d 791, 799 (11th Cir. 2000) (“[T]he plaintiff must
generally show that the decision maker was aware of the protected conduct at the time qf the
ctch’erse eniplovment action.”) (emphasis added); Lichtenstein, 691 F.3d at 30$ (quoting the
language from Brungart). Furthermore, the decision to terminate Plaintiff occurred at the earliest
in January 2014—i.e., three months after Plaintiff requested FMLA leave—which leads the Court
to conclude that the temporal proximity between Defendants’ conduct and Plaintiffs request was
not “unusually suggestive” to support an inference of causation. See LeBoon r. Lancctster Jewish
Cmtr. Ctr. Ass

‘ii,

503 f.3d 217, 233 (3d Cir. 2007) (stating that, in order for a temporal proximity

to be unusually suggestive for a retaliation claim, “a gap of three months between the protected
activity and the adverse action, without more, cannot create an inference of causation and defeat
summary judgment.”); see also C.M.

1’.

Bc]. of Ethtc., 12$ F. App’x $76, $$3 (3d Cir. 2005)

(explaining that a gap of three months between the protected activity and adverse employment
action did not support an inference of causation).
Despite the absence of an unusually suggestive temporal proximity, Plaintiff nevertheless
argues that the record evidences a pattern of antagonism.

Specifically. Plaintiff argues that a

pattern of antagonism can be found because, months before the non-renewal of her appointment,
Defendant Levin told Plaintiff that he would require her to make up any work she missed while on
FMLA leave if he was legally able to do so. (ECF No. 96 at 4). Plaintiff also points to the fact
that Defendant Levin asked several employees of Defendant Rutgers whether he would be

14

permitted to compel Plaintiff to make up work she missed on FMLA leave, despite repeatedly
being told he could not. (Id.). Additionally, Plaintiff claims that one of the reasons her faculty
appointment was not renewed was because of her “missed clinic clays” and it should be left to the

jury to decide whether any of those missed clinic clays overlapped with her FMLA leave. (id. at
4—5).
While, as discussed in the following sections, Plaintiff has certainly proffered evidence of
a pattern of antagonism related to her other claims of discrimination and retaliation, the record

does not indicate a pattern of antagonism in connection with Plaintiffs request for FMLA leave.
First, the Court agrees with Defendants that Defendant Levin’s inquiry into whether he could
require Plaintiff to make up work she missed while on FMLA leave does not show a pattern of
antagonism, considering it is uncontested that Defendant Levin nevertheless granted her request
for FLMA leave and did not require Plaintiff to make tip the missed work. Second, it is uncontested
that Defendant Levin rearranged Plaintiffs responsibilities in order for her to fulfill her ACC
requirements on the days she was scheduled to be at work. (See Defs.’ SMf
96-1

¶ 116—18; ECF No.

¶11 116—18). This fact undermines Plaintiffs argument that her missed clinic days, as

referenced by Defendants in their decision to terminate Plaintiffs employment, overlapped with

her fMLA leave. Accordingly. a reasonable fact finder could not conclude that there was a causal
link between Plaintiffs termination and her request for fMLA leave.

Accordingly. Plaintiff

cannot establish a primct /äcie claim for Count One. and Defendants are entitled to summary

judgment on same.
2. Sex Based Discrimination
A primctficie case for sex based discrimination tinder Title VII and NJLAD “requires a

showing that: (I) the plaintiff belongs to a protected class; (2) he/she was qttalified for the position;

15

(3) he/she was subject to an adverse employment action despite being qualified; and (4) under
circumstances that raise an inference of discriminatory action, the employer continued to seek out
individuals with qualifications similar to the plaintiffs to fill the position.” Saridlo v. United
States Postal Sen., 352 F.3d 789, 797 (3d Cir. 2003). An adverse employment action requires “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.”
Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 761 (199$).

In this case, there is no argument that Plaintiff is a female and therefore under a protected
class. Plaintiff has also presented facts showing she was qualified to hold her position, as she
alleged that she met Defendants’ ever-changing productivity requirements by increasing her
productivity score by 33% and having the fifth highest RVU score out of the twelve physicians in
the Neurology Department. (Pl.’s SMF

¶f $8,

174). Further evidence that Plaintiff was qualified

for her position is the uncontested fact that Defendant Levin referred to her as “possibly the best
neuromuscular physician in the state of New Jersey.” (Defs.’ SMFJ 93)3 As for the third element,
Plaintiff alleges several significant changes to the “terms, conditions, and privileges of [her]
employment,” including but not limited to the revocation of her abilities to teach and use a research
assistant, as well as her termination. See Burlington Inthis., Inc., 524 U.S. at 751—52 (citations
omitted).
Finally, Plaintiff has set forward evidence showing an inference of discrimination. For
example, Plaintiff alleged that male colleagues, such as Dr. Souayah, committed far more culpable

Though Defendants try to argue that Plaintiff was not qualified based on her unsatisfactory performance, (ECF No.
$3-i at 14), said argument is more relevant to the Court’s determination at Steps Two and Three of the McDonnell
Douglas test and therefore shall be considered below. See Pizio v. HTMl Global So/s., Civil Action No. 09-1 136,
2014 WI, 2926499, at *4 (D.N.J. June 27, 2014) (“Determining whether or not Plaintiff performed his job
satisfactorily is part of the pretext stage of the [McDonnell Douglas test].”) (citing We/don v. Kin/i, Inc., 896 F.2d
793, 79$ (3d Cir. 1990)).

16

offenses and had lower RVU scores than Plaintiff but were not reprimanded by Defendant Levin
and did

not

lose their privileges or employment. (Pl.’s SMF

¶J

174, 178). Plaintiff was allegedly

reprimanded more often and graded differently than all of her colleagues, many of whom were
younger males with lower productivity scores than Plaintiff. (Pl.’s SMF ¶jJ 96, 171, 174, 17$).
Finally, under this alleged inference of discrimination, Plaintiff was replaced as Co-Chair of the
MDAC by Dr. Souayah, a younger male colleague. (Pl.’s SMF

¶

310). When viewed in a light

most favorable to Plaintiff, these facts are sufficient to establish aprima flicie claim for sex based
discrimination. Therefore, Counts Two and Six scirvive Step One of the McDonnell Douglas test.
3. Age Based Discrimination
In order to establish aprimct /ètcie case of age discrimination under the ADEA or NJLAD,
Plaintiff must demonstrate that she: (1) was over forty years old; (2) suffered from an adverse
employment decision; (3) was qualified for the position in question; and (4) was ultimately
replaced, or that her position was filled, by a younger person “to support an inference of
discriminatory animus.” Smith v. CTh’ o/Allentoii’n, 589 F.3d 684, 689 (3d Cir. 2009): Connors v.
Chrysler Fin. Coip.. 160 F.3d 971. 974

(3d

Cir. 1998). “In order for a plaintiff to satisfy the

‘sufficiently younger’ standard, we have noted that there is no ‘particular age difference that must
be shown,’ but while ‘[d]ifferent courts have held

...

that a five year difference can be sufficient,

a one year difference cannot.” Showa/ter v. Univ. ofPittsburgh Med. Ctr., 190 F.3d 231, 236
(3d Cir. 1999). The burden of establishing aprimct Icicle case of disparate treatment is not onerous.
Texas Dep’t of Cnitv.Afftirs v. Burdine, 450 U.S. 248, 253 (1981); see also Taylor

V.

Amcor

Flexibles, Inc.. 507 F. App’x 231, 233 (3d Cir. 2012).
In this case. Plaintiff was over forty years old when, as discussed above, she claims to have
suffered adverse employment actions, including the revocation of her privileges and her

17

termination, despite her qualifications. As for the fourth element, Plaintiffs position as Co—Chair
of the MDAC was filled by a male employee who was twenty years younger than her and was
allegedly less qualified,

thus

creating an inference of age discrimination. See Smith, 589 F.3d at

689. Accordingly, Plaintiff has established a prima ficie claim for Counts Four and Seven, and
therefore, same survive Step One of the McDonnell Dottglcts test.
4. Retaliation
To make a prinia fricie showing of retaliation under Title VII or NJLAD, Plaintiff must
establish that: (1) she participated in a protected activity; (2) her employer took an adverse
employment action after or contemporaneous with the protected activity; and (3) there is a causal
link between the protected activity and the employer’s adverse action. See Kcint v. Seton Hit/i
Univ., 289 F. App’x. 564. 567 (3d Cir. 2008) (citing Abrcunson v. William Paterson Coil. ofMi,
260 f.3d 265. 286 (3d Cir. 2001)). This same analysis is applicable to Plaintiffs retaliation claims

under the ADEA. See Bctrber v. CSX Distrib. Sens., 6$ f.3d 694, 701 (3d Cir. 1995) (“The
procedural framework in ADEA retaliation cases also follows that of Title VII.”).
For the first element of retaliation, the Third Circuit does “not require a formal letter of
complaint to an employer or the EEOC as the only acceptable indicia of the requisite ‘protected
conduct.” Id. at 702. However, a proper communication cannot be “too vague,” as the protected
activity must either explicitly or implicitly allege that unlawful discrimination was the basis of the
unfair conduct. Id. With respect to the second element, “a plaintiff claiming retaliation

.

.

.

must

now show only that a reasonable employee would have found the alleged retaliatory actions
‘materially adverse’ in that they ‘well might have dissuaded a reasonable worker from making or
supporting a charge of discrimination.” Weller v. R & TMech., Inc., 255 F. App’x. 665, 668 n.l

(3d Cir. 2007) (quoting Burlington

iM

& Santa Fe

1$

By.

Co. v. White, 54$ U.S. 53, 64 (2006)): see

ct/so Moore v. City o/Phi/ct.. 461 F.3d 331, 341 (3d Cir. 2006). Finally, as stated above, causation
can be shown by “either (1) an unusually suggestive temporal proximity between the protected
activity and the allegedly retaliatory action, or (2) a pattern of antagonism coupled with timing to
establish a causal link.” Bttdhttn, 765 F.3d at 25$ (quoting Lauren IV cx rd. Jean IV, 480 F.3d at
267). Here, Plaintiff has sufficiently alleged all three elements for retaliation.
a. Pro tecteci Activity
Plaintiff claims that she engaged in the protected activity of notifying Defendant Rutgers
of the harassment and hostile work environment that she was enduring by way of a July 2013 letter,
and that Defendants did not forward this letter to the OEE in violation of Defendant Rutgers’
established policy. (ECF No. 96 at 25). Furthermore, Plaintiff claims that she engaged in the
additional protected activity of submitting a letter through her Counsel in October 2013
specifically alleging that she was subjected to sex and age based discrimination. (Id. at 26).
Defendants argue that Plaintiff did not engage in a protected activity by sending the July
2013 letter, because same did not specifically allege age or sex based discrimination. (ECF No.
$3-I at 2$). Though age or sex were not mentioned in the July 2013 letter, it did state that
Defendant Levin was intentionally placing Plaintiff in “a vulnerable and tense position” based on
his hostile and disparate treatment. (ECF No. 96 at 25). It would appear that this letter to some
extent did put Defendants on notice of the discrimination that Plaintiff was being subjected to,
considering Defendant Levin ernailed the Vice Dean of Defendant Rutgers soon after and
explained that Plaintiff was tehing everyone” that Defendant Levin subjected her to a “hostile
work environment.”

(id.).

Upon considering both the content and surrounding circumstances of

the July 2013 letter, the Court conclctdes that the question of whether sending said letter amounted
to a protected activity should be left for a determination by the jury.

19

Furthermore, it is uncontested by the pathes that the October 2013 letter sent by Plaintiffs
Counsel qualified as a protected activity, as it specifically

pLtt

Defendants on notice of Plaintiffs

sex and age based discrimination claims. (ECF No. 83-I at 27; ECF No. 96 at 26). Based on these
findings, the Court conclcides that Plaintiff has sufficiently proffered evidence establishing the first
element of a prima /bcie claim of retaliation.
b.

Remctining

Elements

As for the second element, Plaintiff suffered the adverse employment actions discussed in
the previous sections, including the revocation of her privileges and termination, as well as the
additional action that her performance goals were consistently changed.

See McKinnon v.

Goncttes, 642 F. Supp. 2d 410, 435 (D.N.J. 2009) (“[l]n the retaliation context, an employment
action that is ‘materially adverse’ is considered more broadly [than in the discrimination context]
as one that is ‘likely’ to ‘dissuade[

]

a reasonable worker from making or supporting a charge of

discrimination.”) (qcioting Burlington N. & Sctntct Fe By. Co., 54$ U.S. at 6$). As to the final
element, Plaintiff at the very least established a pattern of antagonism as she was subjected to
hostility from Defendant Levin which allegedly increased after she attempted to report his
behavior. For example, Plaintiff claims that Defendant Levin increased the productivity score she
was required to meet by 10% soon afier Plaintiff sent the July 2013 letter. (ECF No. 96 at 29).
Considering Plaintiff has alleged facts supporting each of the elements of a primct Icicle claim of
retaliation, the Court finds that Counts Three, Five, and Eight survive Step One of the McDonnell
Douglas test.
C.

Step 2: Defendants’ Burden to Show Legitimate Reason for Conduct

Having established a prima /tcie case for Counts Two through Eight, the burden now
moves to Defendants to assert a legitimate, non-discriminatory reason for the disparate treatment

20

and termination of Plaintiff. Wishkin v. Potter, 476 F.3d 1 80, 1 85 (3d Cir. 2007). “If the employer
[sets] forth a legitimate business explanation, then the presumption of discriminatory intent created
by the employee’s

primct /icie

case is rebutted and the presumption simply drops out of the

picture.” Barber, 6$ F.3d at 698 (internal quotations omitted).
Defendants have alleged facts to sufficiently meet this standard. Defendants claim that this
case has nothing to do with discrimination or retaliation, but rather pertains to an employee who
was justifiably reprimanded and terminated for failing to meet her legitimate and expected
productivity levels, despite Defendants’ repeated warnings and attempts to assist her. (ECF No.
83-1 at 1). To support this claim, Defendants point to the fact that Defendant Levin met with all
physicians in the Neurology Department to maximize their productivity scores, and Plaintiff
repeatedly failed to meet these goals. (Id. at 8). According to Defendants, Plaintiffs failure to
timely and adequately complete her clinical work was evidenced by the complaints of multiple
physicians and students, the latter of which requested to no longer work with her thereby resulting
in Plaintiff losing her access to research assistants. (Id. at 9). Apparently in an attempt to assist
Plaintiff in meeting her productivity score, Defendant Levin assigned Plaintiff to the ACC. (Id.).
However, Defendants claim that Plaintiff resented the assignment and intentionally requested
vacation time on days that she was assigned to the ACC. (Id. at 10). After approximately two
years of repeated warnings and assistance from Defendants, Plaintiff was still unable to sufficiently
raise her productivity score and was terminated. (Id. at 11—12). Upon Plaintiffs termination,
Defendants claim that Dr. Souayah was placed in charge of the MDAC, not because he was a man,
but rather because he was the only physician who specialized in neuromuscular diseases. (Id. at
1$). Based on this narrative, which appears to be supported by evidence in the record, the Court

21

concludes that Defendants have met their burden at Step Two and that the burden is now

upon

Plaintiff to establish an indication of pretext.
U. Step 3: Plaintiff’s Evidence of Pretext
A plaintiff seeking to avoid summary judgment at the pretext stage must offer sufficient
evidence that would “allow a factfinder reasonably to infer that each of the employer’s proffered
non-discriminatory reasons

.

.

.

was either apost hoc fabrication or otherwise did not actually

motivate the employment action (that is, the proffered reason is a pretext).” Fitentes v. Perskie,
32 f.3d 759, 764 (3d Cir. 1994) (citations and emphasis omitted). To that end, “the non-moving
plaintiff 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

.

.

and hence infer that the employer

did not act for [the asserted] non-discriminatory reasons.” Id. (quotations omitted); see
ct/so Greenberg

i’.

Camden Cntv. Vocationcd & Tech. Schs., 310 N.J. Super. 189, 200 (App. Div.

1998) (statinu same).
Importantly, when determining whether a proffered reason is a pretext, this Court “must
review the record ‘taken as a whole.” Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133,
150 (2000) (quoting Matsushita F/cc. Induts. Co. v. Zenith Radio Coup., 475 U.S. 574, 587 (1986)).
This Court mttst also “draw all reasonable inferences in favor of the nonmoving party. and it may
not make credibility determinations or weigh the evidence.” Id. It is up

to

the jury to weigh the

evidence, determine the credibility of testimony, and draw the necessary inferences from
each. Id. As such. this Court must determine whether Defendants’ proffered reason is a pretext by
giving “credence to the evidence favoring the nonmovant as well as that evidence supporting the
moving party that is uncontradicted and unimpeached, at least to the extent that that evidence

-y)

comes from disinterested witnesses.” Ic!. at 151 (quoting C. Wright & A. Miller, federal Practice
and Procedure

§

2529, p. 300 (2d ed.1995)).

Here, Plaintiff offers sufficient evidence to cast doubt on whether Defendants’ proffered

legitimate non—discriminatory reason to terminate hei- employment was true. first, Plaintiff has
set forward evidence contradicting Defendants’ performance critiques and showing that she did in
fact meet the requirements given by Defendant Levin. for example, Plaintiff raised her RVU score
by 33% and had the fifth highest RVU score out of the twelve physicians. (Pl.’s SMF

¶ 88,

174).

Othei- physicians advocated on Plaintiffs behalf regarding the quality of her work, but these
communications were dismissed by Defendant Levin. For instance, Defendant Levin was angered
that another physician advocated on Plaintiffs behalf and stated that said physician’s involvement

was “[n]ot helping [Plaintiffs] case.” (Pl.’s SMF

¶

147). It appears that at least one of Defendant

Levin’s associates, Dr. Kamin, did not find this reaction reasonable, considering Dr. Kamin
allegedly explained to Defendant Levin that he could not blame people who wanted to speak highly
of Plaintiff. (Pl.’s SMF

¶

148).

Plaintiff further contradicts Defendants’ purportedly legitimate reason by proffering
evidence that Defendants changed the goals set for Plaintiff in an attempt to justify her termination.
F or example, when Defendant Levin was unable to discredit Plaintiffs raised RVU score, he
increased her productivity goal by 20% and then by an extra 10% after Plaintiff tried to report
Defendant Levin’s hostile conduct.

(Pl.’s SMF

¶

91, 180—81).

One physician, Dr. Hajart,

conceded that the 20% increase in Plaintiffs required RVU score seemed arbitrary. (Pl.’s SMF

¶

92). Defendant Levin also graded Plaintiff differently than all other physicians in the Neurology
Department by measuring the number of patients she encountered. and set allegedly arbitrary

23

requirements on

how

many patients Plaintiff

must see during her time at the ACC. (Pl.’s SMf

7l, 96).
Finally, Plaintiff has set forward evidence that this allegedly discriminatory conduct was
based on her sex and/or age. Specifically, Plaintiff claims that Defendant Levin did not reprimand
her younger male colleagues, many of whom ranked significantly below Plaintiff with regard to
productivity scores. For example, Dr. Souayah, who was allegedly not as qualified as Plaintiff but
nevertheless replaced her at the MDAC, was supposedly never reprimanded by Dr. Levin. (Pl.’s
SME

¶

3 10). Additionally, Plaintiff alleges that only women employees were reprimanded by

Defendant Levin and/or assigned to clinics outside their specialty area, such as Plaintiff working

in the ACC. (P1.’s SMF

¶ 62,

79).

All of these facts, together with Plaintiffs prima flicie

evidence, raise a material issue as to whether Defendants’ proffered reason was a pretext for
discriminatory and/or retaliatory animus, which should be left for a determination by the jury.
Accordingly, Defendants’ motion for summary judgment as to Counts Two through Eight is
denied.
F. Hostile Vork finironment Claim

Though not listed as a specific claim in Plaintiffs Complaint, the

pathes argue

that there

is a cause of action for hostile work environment in this case. (See 83-I at 23; ECF No. 96 at 19).
To state a claim for hostile work environment. Plaintiff must show that: (1) the employee would
not have sciffered discrimination but for her sex and/or age; (2) the discrimination suffered was
pervasive and regular; (3) the discrimination detrimentally affected employee; (4) a reasonable
person of that sex and/or age in that position would have been detrimentally affected; and (5) the
employer is liable under the theory of respondeat superior liability. Drin/oi’ater v. Union Carbide
Coip., 904 F.2d 853, 860 (3d Cir. 1990); see ct/so Grazioli v. Genuine Pctrts Co., 409 F. Supp. 2d

24

569, 576 n.10 (D.N.J. 2005) (“[T]he hostile work environment analyses for Title Vii and Ni LAD
claims are ‘strikingly similar’

“).

As to the final element, “[i]f a harasser is the victim’s

supervisor, then the employer may be held strictly liable.” Bnnthcnger v. New Enter. Stone & Lime

Co., Inc., 170 F. Supp. 3d 801, 837 (W.D. Pa. 2016) (citing ifuston v. Procter & Gcimb!e Pctper
Prods. Coip., 568 F.3d 100, 107 (3d Cir. 2009)). In the context of a hostile work environment
claim, an employee qualifies as a supervisor “only when the employer has empowered that

employee to take tangible employment actions against the victim. i.e.. to effect 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.” Vctnce v. BctIl
Stciie Univ., 570 U.S. 421, 432 (2013).
Despite Defendants’ arguments, (ECF No. $3-I at 23), Plaintiff has proffered facts showing
aprimafiicie claim of hostile work environment that, to the extent it is alleged in this case, should

be left for a determination by the jury. First, as discussed above, Plaintiff has alleged that she was
discriminated and retaliated against based on her sex and age, as evidenced by the fact that: (I) her
younger male colleagues were not reprimanded by Defendant Levin or subjected to changing
productivity requirements despite having lower productivity scores: and (2) women were allegedly
treated more severely than men by Defendant Levin. (ECF No. 96 at 20).
In regard to the second element, Plaintiff claims she was subjected to pervasive and regular
discrimination based on Defendant Levin’s hostile manner, which included Defendant Levin
“systemically berat[ing]” and humiliating Plaintiff for approximately two years. (Id. at 20—2 1).
As discussed above, Defendant Levin also allegedly altered Plaintiffs required productivity goals
in order to

undermine her and to justify terminating her employment. As to the detrimental effect

25

of this conduct, Plaintiff points to her July 2013 letter, in which she specifically states that this
hostile work environment has “exploited” her and left her “demeaned and demoralized.” (Id.).
As to the final element, Plaintiffalleges that Defendant Levin was her supervisor based on
his status as Dean of her department, which could potentially make Defendant Rutgers strictly
liable. (Id. at 2 1—22). Plaintiff also alleges that Defendant Rutgers was put on notice based on
Defendant Levin’s email to the Vice Dean explaining that Plaintiff was accusing Defendant Levin
of creating a hostile work environment. (id. at 22). Plaintiff farther claims that this email was not
forwarded to the OEE, allegedly in violation of Defendant Rutgers’ policy. (Id. at 23—25). These
allegations, taken in a light most favorable to Plaintiff, would allow a reasonable fact finder to
determine that Plaintiff was subjected to a hostile work environment. Therefore, such a claim
survives Defendants’ motion for summary judgment to the extent that it is alleged in this case.
F. Punitive Damages
Finally, Defendants request that this Court strike Plaintiff’s prayer for punitive damages,
in part because Defendants “undertook numerous good faith efforts to comply with antidiscrimination laws and maintain a workplace free of discrimination, harassment, and retaliation.”
(ECF No. 83-I at 30). However, as the Court has denied summary judgment on all but one of
Plaintiffs claims, it would be premature at this point to make a finding as to damages. See BrownMarshall v. Roche Diagnostics Co,p., No. 10-5984,2013 WL 3793622, at 7 (D.NJ. July 9, 2013)
(“Because the issue ofpunitive damages is a fact-sensitive question for a jury, ruling on this issue
at the summaryjudgment stage would be premature.”). Accordingly, Defendants’ request to strike
Plaintiffs prayer for punitive damages is denied.

26

____,2019.

IV.

CONCLUSION

for the aforementioned reasons, Defendants’ motion for summary judgment or, in the
alternative, to strike Plaintiff’s claim for punitive damages is hereby granted to the extent that it
seeks judgment on Plaintiffs FMLA claim, but is denied to the extent that it seeks judgment on
all other claims and to strike Plaintiffs claim for punitive damages. An appropriate Order follows
this Opinion.

Dated: February

LIARES
JO
dge, United States District Coui

27