Cannon v. Communication Components Inc et al

Filing 102

OPINION. Signed by Judge William J. Martini on 9/19/22. (gh, )

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UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

BRENDA CANNON,

Civ. No. 2:20-cv-01626 (WJM)

Plaintiff,

OPINION

V.

COMMUNICATION COMPONENTS, INC.;
DENNIS NATHAN, PAT CERULLI, AND
DOES 1-50
Defendants.

WILLIAM J. MARTINI, U.S.D.J.:
Presently pending In this action for sex discrimination and breach of contract is a
motion by Defendants Communication Components, Inc. ("CCI"), Dennis Nathan
("Nathan"), Pat Cerulli ("CerulU") for summary judgment pursuant to Fed. R. Civ. P. 56.
ECF No. 94. For the reasons set forth below, Defendants' motion for summary judgment
is granted in part and denied in part.

I. BACKGROUND AND PROCEDURAL HISTORY
Defendant CCI is a New Jersey corporation that provides a variety of products and
services to mobile network operators in the United States, Europe, and other regions of the
world, with respect to wireless communication. Defs/ Stmt. Of Undisputed Facts

C'DSUF") at fl 1-2. Plaintiff Brenda Cannon ("Plaintiff) was employed by CCI as a sales
manager pursuant to the terms of a written employment contract dated November 14, 2014
("Employment Contract"), which contained all the terms of Plaintiff s employment. Id. at
^ 4; Decl. of Dennis Nathan ("Nathan DecL") at ^ 9, ECF No. 94-1. Plaintiff commenced
her employment on December 1, 2014 and was terminated on June 22, 2018. DSUF at ^
3, 13; November 14, 2014 Employment Contract attached to Nathan Decl. as Ex. A, ECF
No. 94-2.

Defendant Nathan is co-owner. President, and Chief Technology Officer of CCI.
Nathan Decl. at ^ 2. Cerulli and Plaintiff were co-equal sales employees until Cerulli

became Vice President of Sales and Plaintiffs supervisor in April 2017. Decl. of Patrick
Ceruili ("Cerulli Decl.") at ^ 13, 14, ECF No. 94-3.

1

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On May 28, 2019, Plaintiff commenced this action in the United States District
Court for the Western District of Washington claiming violations of both federal and state
(New Jersey and Washington) anti-discrimination laws. On August 23, 2019, in response
to Defendants' first motion to dismiss, Plaintiff filed an eleven-count First Amended
Complaint ("FAC") claiming disparate treatment and a hostile work environment on
account of her sex, as well as unlawful termination in retaliation for objecting to and
reporting such treatment to Cd's human resources department. Plaintiff further alleges
that, as a result of such treatment and termination, CCI breached both its employment

contract with Plaintiff and the implied covenant of good faith and fair dealing, made
fraudulent representations, and failed to fulfill certain promises made to Plaintiff regarding
her compensation and eligibility for promotions and other career advancement
opportunities, and that each of the Defendants has been unjustly enriched and caused
Plaintiff emotional distress. See FAC, generally, ECF No. 24.
Defendants subsequently filed a motion to dismiss the FAC, which was granted in

part by the Washington District Court and resulted in the transfer of this action to this Court
on February 14, 2020. See ECF No. 38. Defendants then filed a second motion to dismiss
seeking dismissal of nine of the eleven counts in the FAC and did not move to dismiss the

breach of contract (Count Five) and implied covenant of good faith and fair dealing claims
(Count Eight). See ECF Nos. 52, 53. This Court granted Defendants' motion to dismiss in
its entirety except for Plaintiffs sex discrimination claim under the Washington Law

Against Discrimination ("WLAD") (Count Three), See October 22, 2020 Opinion
("Dismiss Op."), ECF No. 57. As further discovery is not permitted/ see ECF No. 85,
Defendants now move for summary judgment on the three claims that remain - sex
discrimination under WLAD, breach of contract and the implied covenant of good faith
and fair dealing.

II. STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment is proper
when "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." "A fact is ^material'... if its existence
or nonexistence might impact the outcome of the suit under the applicable substantive law."

Scmtiniv. Ftientes, 795 F.3d410, 416 (3d Cir. 2015) (quoting Anderson v. LibertyLobby,
Jnc^471 U.S. 242,248 (1986)). "A dispute over a material fact is 'genuine' if'a reasonable
jury could return a verdict for the nonmovmg party.'" Id. (quoting Anderson, 477 U.S. at
248). "After making all reasonable inferences in the nonmovmg party's favor, there is a
genuine issue of material fact if a reasonable jury could find for the nonmovmg party."

Pignataro v. PortAuth of New York & New Jersey, 593 F.3d 265, 268 (3d Cir. 2010). The
Court's role at the summary judgment stage "is 'not ... to weigh the evidence and
determine the truth of the matter but to determine whether there is a genuine Issue for

According to Defendants, Plaintiff served no interrogatories or document requests, nor did she take any depositions.

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trial.'" Baloga v. Pittston Area Sch. Dist., 927 F.3d 742, 752 (3d Cir. 2019) (quoting
Anderson, 477 U.S. at 249).
The party moving for summary judgment bears the initial burden of showing the

basis for its motion and identifying those portions of the record which it believes
demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. CatreU, 477

U.S. 317, 323 (1986). If the moving party meets its burden, the burden then shifts to the
non-moving party to "come forward with specific facts showing that there is a gemime
issue for trial and do more than simply show that there is some metaphysical doubt as to

the material facts." United States v. Donovan, 661 F.3d 174, 185 (3d Cir. 2011) (quoting
MatszfshUa Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)) (emphasis
in original and internal quotation marks omitted). "[U]nsupported assertions, speculation,
or conclusory allegations" are insufficient to defeat a summary judgment motion.
Longstreet v. Holy Spirit. Hosp., 67 F. App'x 123, 126 (3d. Cir. 2003). "[T]here must be
evidence on which the jury could reasonably find for the [non-movant]." Anderson^ 477
U.S. at 252.

In this case. Plaintiff has failed to properly place facts in dispute by providing a
responsive statement of undisputed material facts that addresses "each paragraph of the
movanfs statement" and citing to "particular parts of materials in the record" as required
by L. Civ. R. 56.1(a) and Fed. R. Civ. P. 56(c), respectively. Instead, Plaintiff makes only
conclusory statements that Defendants' facts are inaccurate and in dispute. See Pl.'s
Response to Defs.' Mot. for Summary Judgment at 3-4. Accordingly^ the recitation of facts
above is taken from Defendants' Statement of Undisputed Facts, which has been deemed
undisputed. See Fed. R. Civ. P. (e)(2); Clarkv. New Jersey, 2017 WL 5513689, at si;n.l
(D.NJ. Nov. 17, 2017) (citing Hernandez v. United States, 608 Fed. Appx. 105,109-10

(3d Cir. 2015) (finding district court did not err in treating moving party's version of facts
as undisputed when deciding summary judgment motion because nonmoving party failed
to file local Rule 56.1 statement of disputed facts or submit evidence in response to
summary judgment motion).

Plaintiff also failed to comply with the briefing schedule imposed in the Magistrate
Judge's April 20 2022 Scheduling Order by submitting her opposition brief five days
beyond the July 8, 2022 deadline.2 See ECF No. 91. Nevertheless, '"a party's failure to file
a timely response ... by itself, does not require summary judgment" to be entered in the
movant's favor/" Brown v. City of Philadelphia, 541 F. Supp. 3d 605, 612 (E.D. Pa. 2021)
(citations omitted). "[T]he court must still ^conduct a full analysis to determine whether
granting summary judgment' is appropriate." Id. (citing Weitzner v. Sanoft. Pastew Inc..,

909 F.3d 604, 614 (3d Cir. 2018); Fed. R. Civ. P. 56(e)(3) (where party fails to properly
support factual assertions, court may grant summary judgment "?/ the motion and
supporting materials-including the facts considered undisputed-show that the movant is

entitled to it." (emphasis added)).

Any further disregard of Court rules or orders may result in sanctions.

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III. DISCUSSION
A. Discrimination under WLAD (Count Three)3
In Count Three, Plaintiff alleges disparate treatment due to her gender and hostile
work environment in violation of the WLAD. A plaintiff may establish a prima fade case
either by offering direct evidence that discriminatory intent was a "significant or substantial
factor" In the employer's adverse employment action, or "by satisfying the McDonnell
Douglas [v. Green, 411 U.S. 792 (1973)] burden-shifting test that gives rise to an inference
of discrimination." Alonso v. Qwest Commc'm Co., LLC, 178 Wash. App. 734, 743^4,

(2013) (citing Kastanis v. Echic. Emps.' Credit Union, 122 Wash.2d 483, 491 (1993)
(adopting McDonnell Douglas standard for discrimination cases under WLAD), amended,

122 Wash, 2d 483 (1994)).
1. Disparate Treatment
"To establish a prima facie disparate treatment discrimination case, a plaintiff must
show that his employer simply treats some people less favorably than others because of
their protected status." Alonso, 178 Wash. App. at 743-44 (citing Johnson v. Dep 't ofSoc.
<& Health Servs., 80 Wash. App. 212, 226 (1996)). Here, Defendants argue that under the
McDonnell Douglas burden-shifting analysis. Plaintiff cannot establish that her
termination was attributable to her membership in a protected class, nor can she show that
CCI's reasons for termination were pretextual. However, as the Court noted in its earlier
Opinion, Plaintiff does not allege in her FAC that the adverse employment action in her
disparate treatment claim is termination. See Dismiss Op. at 5; FAC at ^ 90. Rather, the
basis of her disparate treatment claim is that she was singled out due to her gender by, for
example, having different rules applied to her than those that applied to her male
colleagues. See Dismiss Op. at 6; FAC at ^ 50-54, 71, 76-78. In focusing solely on
Plaintiffs termination as the adverse employment action, Defendants have not satisfied
their initial burden to show that there are no genuine issues of material fact for a reasonable
jury to conclude that Plaintiff was treated less favorably for being female. Thus,
Defendants' motion for summary judgment on the disparate treatment claim under WLAD
is denied without prejudice.
2. Hostile Work Environment
A hostile work environment claim under WLAD requires Plaintiff to show "(I)

unwelcome harassment; (2) that is attributable to [Plaintiffs] membership in a protected
class; (3) which affected the terms and conditions of [Plaintiffs] employment; and (4)

The Court previously dismissed Plaintiffs WLAD retaliation claim. See Dismiss Op. a( 7-8.
Plaintiff asserts that her termination was motivated by retaliation for threatening to complain to Cd's human
resources department. FAC at ^ 7,83,84.

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which can be imputed to [Plaintiffs] employer." Hotchkiss v. CSKAnto, Inc., 918 F. Supp.
2d 1108, 1118 (E.D. Wash. 2013). "[WJhether an environment is "hostile" or "abusive"
can be determined only by looking at all the circumstances." Harris v. Forklift Sys., Inc.,
510 U.S. 17, 23 (1993). "The conduct must be both objectively abusive (reasonable person
test) and subjectively perceived as abusive by the victim." Adams v. Able Bldg. Supply,
Inc., 114 Wash. App. 291, 297 (2002) (citing Harris, 5 10 U.S. at 21-22).
Upon reviewing the record,5 the Court finds that there are genuine issues of material
fact precluding summary judgment on the hostile work environment claim. For example,

Plaintiff insists that Nathan attempted to kiss her twice. See Tr. at 138:3-7; DSUF at ^ 52.
Although Nathan denies that such conduct ever occurred, see DSUF at | 53, Plaintiffs

deposition testimony sets forth specific facts pertaining to the alleged kissing and is
sufficient to defeat summary judgment. See Lzipyan v. Corinthian Colleges Inc^ 761 F.3d
314, 320-21 (3d Cir. 2014) ("[A] single, non-conclusory affidavit or witness's testimony,
when based on personal knowledge and directed at a material issue, is sufficient to defeat
summary judgment," even if affidavit is self-serving). Moreover, contrary to Defendants'
assertion that two attempts to kiss Plaintiff are too few to have created a hostile work
environment, "[w]hether harassment is sufficiently severe or pervasive is a question of
fact" for the jury to decide. See Achms, 114 Wash. App. at 296 (citing Harris, 510 LLS. at
23). Defendants' reliance on Brooks v. City of San Mateo, 229 F.3d 917 (9th Cir. 2020) to
argue otherwise is unavailing. In Brooks, the Ninth Circuit expressly stated that it was not
deciding whether a single instance of sexual harassment can ever be sufficient to establish
a hostile work environment under Title VII. M. at 925. Rather, the court found that the
single instance ofnonviolent sexual assault was not pervasive and did not alter the terms
and conditions of the plaintiffs employment because the employer immediately and
completely removed the harasser from the workplace ensuring that the harassment was
never repeated and entirely isolated. Id at 927. Here, in contrast, Nathan was never
removed from CCI and is accused of attempting to kiss Plaintiff a second time.
Next, although Defendants emphasize that Plaintiff admitted never reporting any of
the purported harassment or discriminatory conduct to human resources or any other CCI
department, see Tr. at 207:17-208:2, 220:8-13, "[w]here an owner, manager, partner or
corporate officer personally participates in the harassment," their actions can automatically
be Imputed to the employer. Glasgow v. Georgia-Pac. Corp., 103 Wash. 2d 401, 407
(1985); Davis v. Fred's Appliance, Inc., 171 Wash. App. 348, 363 (Ct. ofApp. 2012)
(noting harassment can be Imputed when harasser's rank in the company is high enough
for that person to be the company's alter ego). In this case, Nathan Is Cd's co-owner and
is alleged to have personally participated in the harassment. Further, Nathan's rank as

President and Chief Technology Officer is high enough that his actions may automatically
be imputed to the company.

While it is not the Court's obligation to comb through evidence to discover facts in dispute and need only consider
cited materials, the Court may consider other materials in the record. See Fed. R. Civ. P. 56(c)(3).

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In addition to the kissing allegation, Plaintiff testified that Cerulli took his clients to
strip clubs and that his discussion of strip clubs made her uncomfortable. See Tr. at 110:59, 14-18; 112:17-24. A reasonable j my could credit Plaintiffs testimony over Cemlli's
explanation that Plaintiff simply overheard a single conversation he had with another male
salesperson in or about January or February 2018. Cerulli Decl. at ^[ 27-32. At that time,
Cerulli was already Plaintiffs supervisor. Thus, making all reasonable inferences in the
nonmoving party's favor, Defendants have not met their burden to show that the only
reasonable verdict is in their favor. The attempted kissing and discussion of strip clubs

taken together present disputed material facts upon which a jury could find that Defendants
created a hostile work environment under WLAD. Defendants' motion for summary
judgment is denied.
B. Breach of Contract fCount Five) 6
A valid oral contract7 requires: (1) mutual assent of the parties; (2) consideration,
and (3) reasonably certain contract terms. See, e.g., Gant v. Ragone, No. 20-01727, 2020

WL 6797125, at ^7 (D.NJ. Nov. 19,2020). Plaintiff insists that at the time she entered into
the written Employment Contract with CCI, then Vice President of Sales, Jerry Kirshman,

orally agreed to pay Plaintiff $5,000 for every antenna that she assisted in getting approved
by a national wireless carrier. Tr. at 222:4-23. Plaintiff claims that Defendants, in breach
of their oral contract, did not pay her this commission. However, a self-serving conclusory
affidavit or deposition testimony is insufficient to defeat a motion for summary judgment
unless, when juxtaposed with other evidence, it is sufficient for a rational trier of fact to
credit Plaintiff s testimony. Johmon v. MetLife Bank, N.A., 883 F. Supp. 2d 542, 549 (E.D.
Pa. 2012). Here, apart from her own deposition testimony. Plaintiff has not proffered any
other evidence that the parties entered into a valid oral contract separate from the written
Employment Contract. See, e.g., Gonzalez v. Secretary ofDept. of Homeland See., 678

F.3d 254,263 (3d Cir. 2012) ("[TJhis is a case where the court, based on all of the evidence,
can say with confidence that a rational trier of fact could not credit [plaintiffs testimony]."
(quotation omitted)); Berrada v. Cohen, No. 16-574,2018 WL 4629569, at M (D.NJ. Sept.

27, 2018), affd, 792 F. App'x 158 (3d Cir. 2019) (granting summary judgment to
defendants where there was no evidence of contract modification other than plaintiffs selfserving testimony); Soto v. Trella, No. 03-1098, 2007 WL 4355463, at ^2 (D.NJ. Dec. 10,

6 In Count Five, Plaintiff does not allege that Defendants breached the written Employment Contract but contends that
Defendants breached other promises regarding promotions and pay raises. To the extent Plaintiff claims those
promises were part of an oral contract, they cannot survive summary Judgment because, as discussed herein, there is
insufficient evidence of any valid oral contract. Further, those breach of promise claims were also asserted under
quasi- contract and fraud theories, which have already been dismissed by this Court. See Dismiss Op. at 8-9,
Neither party has briefed whether Washington or New Jersey law should apply to the breach of oral contract claim.
However, Defendants cite to New Jersey law and the Employment Contract, <|[ 16 requires New Jersey law to govern
any disputes. In any event, an extensive choice of law analysis is unnecessary because Washington law is substantially
similar with respect to the elements of contract law at issue. See, e.g; Keystone Lam/ & Development Co. v. Xerox
Corp., 152 Wash.2d 171, 177-78 (2004).

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2007) (granting summary judgment to defendants on excessive force claim where plaintiff
relied on "only his own self-serving testimony" and there was no "eyewitness account,
corroborating documentation or other supporting evidence"),
In fact, apart from the lack of any corroborating evidence of a valid oral contract
Plaintiffs testimony is also contradicted by documentary evidence. The Employment
Contract, for example, contains an express provision that the "letter agreement may not be

amended or modified except by an express written agreement signed by [Plaintiff] and a
duly authorized officer of CCI." Employment Contract at D 15. Additionally, the
Employment Contract includes an integration clause stating that the agreement "and the

Exhibit attached hereto contain all of the terms of [Plaintiffs] employment with CCI and
supersede any prior understandings or agreements, whether oral or written, between
[Plaintiff] and CCL" Id at ^ 14; see, e.g., Telmark Packaging Corp. v. Nutro Labs. &
Nature's Bounty, Civ. No. 05-3049, 2008 WL 43954, at M (D.N.J. Jan. 2, 2008) (granting
defendant summary judgment on oral promise claim because contract contained integration
clause). Without corroborating evidence, Plaintiffs unsupported deposition testimony,
which is contradicted by the record, is insufficient to defeat summary judgment. See Parker

v. Sch Dist. of Philadelphia, 415 F. Supp. 3d 544, 554 (E.D. Pa. 2019), off d, 823 P. App'x
68 (3d Cir. 2020) (citing Thomas v. Delaware State Univ., 626 F. App'x 384, 389 n.6 (3d
Cir. 2015) (not precedentlal) (additional citations omitted).
Even if there was sufficient evidence for a jury to find that the parties entered into
a valid oral agreement, Plaintiff has not proffered any evidence pertaining to any breach of
that contract, such as the number of antennas approved. Plaintiffs assistance in obtaining
those approvals, and the amount of commission Plaintiff was owed for those approved
antennas. Thus, the Court concludes that a rational trier of fact could not credit Plaintiffs
self-serving testimony regarding her breach of contract claim. Plaintiff has failed to meet
her burden to establish a genuine Issue of material fact for trial on this issue. Defendants'
motion for summary judgment on Count Five is granted.

C. Breach of Implied Covenant of Good Faith and Fair Dealing (Count Ei^ht)
Plaintiff alleges that in breach of the implied covenant of good faith and fair dealing,
Defendants never intended to fulfill their obligation to promote her. FAC at ^ 130.
However, Defendants are correct that without an enforceable contract, no such implied
covenant attaches. See Fields v. Thompson Printing Co., 363 F.3d 259, 271 (3d Cir. 2004)
(recognizing New Jersey law provides that every enforceable agreement contains covenant
of good faith and fair dealing); Kapossy v. McGraw-Hfll, Inc., 921 F. Supp. 234, 248
(D.NJ. 1996). Defendants' motion for summary judgment on Count Eight is granted.

IV. CONCLUSION
For the reasons noted above, Defendants? motion for summary judgment is granted
in part and denied in part. Summary judgment on the WLAD claim in Count Three for
disparate treatment and hostile work environment is DENIED. Defendants' summary

7

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judgment motion is GRANTED on Plaintiffs breach of contract claim (Count Five) and
breach of the implied covenant of good faith and fair dealing (Count Eight).
s/William J. Martin!
WILLIAM J. MARTINI, U.S.DJ.
Date: September 19th, 2022