WHITE v. CLEARY et al
Filing
42
MEMORANDUM and ORDER granting 19 Defendants' First MOTION for Summary Judgment; directing that the case is closed. Signed by Judge Peter G. Sheridan on 3/16/2012. (mmh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY
TAMARA WHITE
Civil Action No. 09-4324 (PGS)
Plaintiff,
v.
MEMORANDUM & ORDER
JAMES CLEARY et al.
Defendants.
SHERIDAN, U.S.D.J.
This matter comes before the Court by Defendants’, James Cleary, Andrew Teeple, and
Anthony DeOrio as individuals and employees of Monmouth Regional High School District
(“Monmouth Regional High”), and Monmouth Regional High School District on a motion for
summary judgment. The plaintiff, Tamara White, alleges in her second amended complaint that she
was certain varsity cheerleading coach positions, and subjected to a hostile work environment and
retaliation due to sex discrimination. The plaintiff alleges the following causes of action in her
complaint: (1) hostile work environment as a result of sex discrimination in violation of Title VII
under 42 U.S.C. 2000e and New Jersey Law Against Discrimination (New Jersey LAD); (2) First
Amendment retaliation claim under 42 U.S.C. § 1983; (3) an Equal Pay Act claim under 29 U.S.C.
§ 206; and (4) Title VII and New Jersey LAD retaliation.
I.
BACKGROUND
Only the facts relevant to the court’s analysis will be recited. In July 1995, the plaintiff was
hired to teach social studies at Monmouth Regional High, which was her first job as a teacher. That
fall in November 1995, plaintiff was offered the varsity cheerleading coach position in addition to
her teaching responsibilities and was told that it would be “a babysitter’s job” as she could do her
lesson plans and grade papers while coaching. The plaintiff accepted the offer and began to coach
cheerleading in December 1995 for the winter season. Although cheerleading was recognized as a
sport and stipends were paid according to the coach salary guide, plaintiff claims she was paid less
than male coaches, and the cheerleading squad received less funding in comparison to male sports
teams. Defendants note that the cheerleading coach is a non- tenured position. Plaintiff also alleges
that then Athletic Director, Mike Luccarelli1, undermined the importance of her role as a coach by
referring to her as a “club advisor” as opposed to a coach of a varsity sport. Plaintiff asserts that she
first complained about the inequity in pay for coaches and funding in November 2003, but was told
by three men: Mike Luccarelli, James Cleary, then Business Administrator, and Anthony DeOrio that
she complained too much.
In addition to plaintiff’s allegations of inequality in the school’s athletic department, plaintiff
also asserts that she was sexually harassed by Mr. Luccarelli. Plaintiff asserts that on several
occasions he would call her into his office, and ask her to turn around and comment that she looked
like she lost weight. Plaintiff further asserts that he would often stand close and touch her arm when
speaking to her and on at least one occasion he pinched her cheek when she had acne and indicated
that she was probably not getting enough sex from her husband. Plaintiff notes that Mr. Luccarelli
1
Mr. Luccarelli is not a named defendant in this case.
2
had a reputation for engaging in sexual harassment, but the school administration took no action.
Plaintiff did not provide a time frame for when any of these incidents occurred.
Plaintiff further describes several incidents that occurred during and after her tenure as the
varsity cheerleading coach that forms the basis for her claims. The plaintiff asserts that she
recommended to then Principal, Dr. George, that Ms. Verdee, the fall JV cheerleading coach, should
be fired at the end of the fall 2002 season because of her lack of commitment to coaching.
Specifically, plaintiff asserts that Ms. Verdee allowed the JV team to miss games, did not want the
varsity and junior varsity teams to practice together, and was inattentive to the girls during practice.
According to plaintiff, Dr. George indicated that he would address Ms. Verdee’s behavior if plaintiff
documented her complaints. Plaintiff documented that Ms. Verdee cancelled practice approximately
36 times during the fall. As a result, Ms. Verdee was fired as the junior varsity cheerleading coach,
but plaintiff notes that Ms. Verdee was later rehired.
A second incident occurred in the fall of 2003. The plaintiff disciplined certain members of
the cheerleading team for missing a school game, because they unilaterally decided to coach a Pop
Warner midget cheerleading event that was scheduled for the same time.
Several parents
complained about the discipline and one girl quit the cheerleading team, but the school
administration supported the plaintiff’s decision. In spring 2004, the parents of the cheerleaders who
were disciplined requested that the Board of Education (“Board”) review the situation. After a
hearing, the Board took no action against plaintiff and she remained the varsity cheerleading coach.
A third incident occurred in January of 2005 when the plaintiff disciplined a cheerleader for
participating at one of the games despite being instructed to sit on the sidelines because of a hand
injury. Plaintiff asserts that in her absence, Mr. Luccarelli allowed the injured cheerleader to cheer
3
at the game, but while sitting. At the next game, plaintiff prevented the cheerleader from
participating. At this next game, plaintiff alleges that the injured cheerleader’s mother deliberately
used her shoulder to “hit” plaintiff’s shoulder in the hallway during halftime. However, there was
no physical injury requiring treatment. When plaintiff reported the incident to Mr. Luccarelli, he
replied that he heard the plaintiff had actually hit the mother, and also expressed “do you know how
many people want you fired?” Plaintiff also called Mr. Teeple, who was not at the game, to report
the incident. Plaintiff asserts that Mr. Teeple expressed concern and advised her to file an incident
report at the local police department. Thereafter, plaintiff filed a grievance against Mr. Luccarelli
(for lack of support), which was later withdrawn, and also filed an incident report at the police
station to ensure that the facts would be on the record. The incident was addressed during a meeting
with plaintiff, who brought a union representative, and Mr. Teeple, who was the Principal, Mr.
Luccarelli, and Mr. Collum, who was the Superintendent. At the meeting, plaintiff argued that Mr.
Luccarelli was giving preferential treatment to the family of the injured cheerleader, and she also
sought to have the mother of the injured cheerleader banned from attending future home games.
After failing to obtain any support from Mr. Luccarelli, plaintiff attempted to cultivate support from
other coaches to sign onto a “no confidence” letter of grievance against Mr. Luccarelli.
By April 2005, plaintiff received a letter from Mr. Luccarelli that stated she would not be
recommended as the varsity cheerleading coach the next school year because of four reasons: (1)
not attending the annual fall coaches meeting in 2004, and not providing a reason for the absence;
(2) not informing the Athletic Director of two absences in January 2005; (3) driving separately, as
opposed to taking the bus with the team, to two away games without prior administrative approval;
and (4) limiting the cheerleaders from participating in other extracurricular activities in order to
4
make cheerleading an exclusive activity, which was against the school’s policy. At that time,
plaintiff resigned from coaching in spring 2005 in exchange for the following three concessions from
the school: (1) a positive evaluation as a coach instead of a negative evaluation (plaintiff notes that
she never received a negative evaluation while she was a coach); (2) a recommendation from the
school regarding her good performance as a teacher and as a coach for building a competitive
cheerleading squad; and (3) the school would not retaliate against her if she sought employment with
another school district.
In spring 2006, plaintiff reapplied for the fall 2007 varsity cheerleading coach position
because her prior resignation did not prohibit her re-application. At that time, Mr. Luccarelli retired
and Mr. DeOrio was hired as Athletic Director. The plaintiff was not hired as the varsity
cheerleading coach, and Ms. Russo, who was a cheerleading coach for the 2005/2006 season, was
re-hired as the varsity cheerleading coach for fall 2007.
The plaintiff also applied and was interviewed for the varsity cheerleading coach position for
the winter 2007 season because Ms. Russo was pregnant and would be on maternity leave. Plaintiff
alleges that several days after the interview, Mr. DeOrio informed her that the current coaches would
finish the school year, but plaintiff would be hired for the 2008/2009 season when the position would
be changed to include both the fall and winter season. Plaintiff also asserts that she had a
conversation with Mr. Teeple who confirmed that she would be the varsity cheerleading coach next
fall, and the interview in the spring was only a formality. Plaintiff asserts that after these
conversations she sent Mr. DeOrio, Mr. Cleery, and Mr. Teeple an email thanking them for the
2008/2009 cheerleading coach position. In response, Mr. DeOrio sent an email to plaintiff clarifying
that the coaching position was not promised to her, and it would be advertised as usual, at which
5
time she is welcome to apply again.
In fall 2007, plaintiff also notes that she applied to be an affirmative action officer within the
school district. Plaintiff was denied the position in favor of another teacher who had one year
experience in teaching while plaintiff had thirteen years of teaching experience.
In Spring 2008, plaintiff applied and interviewed for the 2008/2009 varsity cheerleading
coach position. Plaintiff was denied the job. As a result of the denial, plaintiff requested a meeting
with Mr. DeOrio, Mr. Clearly, Mr. Teeple and Robert Merola, then president of Monmouth Regional
High’s teachers’ union. At the conclusion of the meeting, plaintiff asserts that Mr. Cleary yelled that
if she did not like their decision then she should consult with a lawyer. Plaintiff notes that the job
posting expressly stated that it would not be a competitive cheerleading program. Plaintiff asserts
that the position was deliberately advertised to discourage plaintiff from applying for the job because
the administration knew of her desire to build a competitive cheerleading program. Plaintiff alleges
that she was ultimately denied the job because of her complaints regarding unequal pay and lack of
funding for the cheerleading program and female athletic programs overall. In June 2008, plaintiff
asserts that she attended a Board of Education meeting to voice similar complaints about the
disparate treatment towards the cheerleading team in terms of unequal pay for coaches and funding.
In July 2008, plaintiff filed a complaint with the Equal Employment Opportunity Commission
(EEOC). Mr. Cleary certified that the reasons for not having a competitive cheerleading program
were because of insurance and finance concerns. Mr. Cleary further certified that in his seventeen
year tenure at Monmouth Regional High there has never been an issue raised as to a Title IX
violation. Mr. Cleary also stated that coaching salaries are contractual and reached by agreement
between the Board of Education and Monmouth Regional Education Association.
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In spring 2009, the fall 2009 cheerleading coach position was posted, but plaintiff did not
apply for the position. In August 2009, plaintiff filed a discrimination complaint against defendants
in this Court. In December 2009, the assistant cheerleading coach position for the 2009/2010 season
was re-posted and plaintiff applied for the job. Plaintiff was not selected for the position, and has
maintained this suit against defendants.
II.
DISCUSSION
A.
Summary Judgment Standard
Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the moving
party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). 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 (1986). “In considering a motion for summary judgment, a
district court may not make credibility determinations or engage in any weighing of the evidence;
instead, the non-moving party’s evidence ‘is to be believed and all justifiable inferences are to be
drawn in his favor.’” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting
Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish 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 party opposing the motion for summary judgment
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,
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Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations . . . and pleadings are
insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657 (3d
Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to “set forth specific facts
showing that there is a genuine issue for trial”). Moreover, only disputes over facts that might affect
the outcome of the lawsuit under governing law will preclude the entry of summary judgement.
Anderson, 477 U.S. at 247-48. If a court determines, “after drawing all inferences in favor of [the
non-moving party], and making all credibility determinations in his favor – that no reasonable jury
could find for him, summary judgment is appropriate.” Alevras v. Tacopina, 226 Fed. Appx. 222,
227 (3d Cir. 2007).
B.
Plaintiff’s Title VII Claims
Title VII makes it unlawful for an employer “to fail or refuse to hire or to discharge
any individual, or otherwise to discriminate against, any individual with respect to his compensation,
terms, conditions, or privileges of employment, because of such individual’s race, color, religion,
sex, or national origin.” 42 U.S.C. § 2000e-2(a)(1). New Jersey LAD provides that “[a]ll persons
shall have the opportunity to obtain employment . . . without discrimination because of race, creed,
color, national origin, ancestry, age . . . sex . . . . This opportunity is recognized as and declared to
be a civil right.” N.J.S.A. 10:5-4.
Plaintiff argues under various Title VII and New Jersey LAD theories that because of sex
discrimination she was subjected to a hostile work environment and was denied the affirmative
action officer position and cheerleading coach positions from the 2007/2008 season through the
2009/2010 season. However, this Circuit has held that Title VII claims cannot be brought against
individual employees. Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d 1061, 1077-78 (3d
8
Cir. 1996). The statute provides that only employers with fifteen or more employees may be held
liable. Id.; 42 U.S.C. § 2000e-2(a); (b). Accordingly, plaintiff’s Title VII claims against Mr. Cleary,
Mr. Teeple, and Mr. DeOrio individually must be dismissed as a matter of law. Plaintiff’s Title VII
claims only remain against Monmouth Regional High as the employer. New Jersey LAD claims
for hostile work environment, like Title VII claims, also limit liability against an employer. N.J.S.A.
§ 10:5-12(a). Individual employees may be held personally liable for New Jersey LAD claims under
an aiding and abetting theory where a supervisory employee aids and abets an employer’s violation
of the Act. N.J.S.A. § 10:5-12(e); Hurley v. Atlantic City Police Dept., 174 F.3d 95, 125-26 (3d Cir.
1999). Here, plaintiff has not specifically pled an aiding and abetting theory and therefore the New
Jersey LAD claims against Mr. Cleary, Mr. Teeple, and Mr. DeOrio must be dismissed as a matter
of law and may only proceed against Monmouth Regional High as the employer.
1.
Hostile Work Environment
A hostile work environment occurs when unwelcome sexist conduct unreasonably interferes
with an employee’s performance or creates an intimidating, hostile, or offensive working
environment.
See Meritor Savs. Bank FSB v. Vinson, 477 U.S. 57, 65 (1986); Weston v.
Pennsylvania, 251 F.3d 420, 425-26 (3d Cir. 2001). To establish a prima facie hostile work
environment claim under Title VII the plaintiff must prove: (1) the employee suffered intentional
discrimination because of her sex; (2) the discrimination was pervasive and regular; (3) the
discrimination detrimentally affected the plaintiff; (4) the discrimination would detrimentally affect
a reasonable person of the same sex in that position; and (5) the existence of respondeat superior
liability. Bonenberger v. Plymouth Township, 132 F.3d 20, 25 (3d Cir. 1997).
To fall within the scope of Title VII, the conduct complained of must be severe and pervasive
9
enough so that the employee subjectively feels that the work environment was hostile or abusive and
objectively, a reasonable person would also find that work environment to be hostile or abusive.
Harris v. Forklift Sys., Inc., 510 U.S. 17, 21-22 (1993), aff’d by Faragher v. City of Boca Raton,
524 U.S. 775, 783 (1998); Burlington Indus., Inc. v. Ellerth, 524 U.S. 742, 753 (1998). A court must
examine the circumstances to determine if a work environment is hostile or abusive. These
circumstances may include “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.” Harris, 510 U.S. at 23.
Defendants argue that plaintiff’s hostile work environment and gender discrimination claims
should be dismissed as a matter of law because her factual allegations are based on “perception,
speculation, and suspicion” and are insufficient to support her claims. Applying the elements of a
hostile work environment claim to the present matter, the plaintiff has failed to establish a prima
facie case. After viewing the facts in the light most favorable to the plaintiff, the plaintiff has not
provided any factual assertions of intentional discrimination by defendants Mr. White, Mr. Cleary,
or Mr. DeOrio to satisfy the first element. Plaintiff makes generalized statements that female
employees who were outspoken were subject to harassment. Plaintiff also references two remarks
by Mr. Cleary when he stated that she complained too much, and on a separate occasion that she
should consult with a lawyer. These remarks can be classified as “mere offensive uterrance[s]” and
do not rise to the level of physically threatening or humiliating. Harris, 510 U.S. at 23. Plaintiff
has also failed to show how this alleged verbal harassment was motivated by gender discrimination.
As it relates to gender, “Title VII does not prohibit all verbal or physical harassment in the
workplace; it is directed only at ‘discrimination ... because of ... sex.’” Oncale v. Sundowner
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Offshore Servs., 523 U.S. 75, 80 (1998). Without a factual basis of intentional discriminatory
conduct, the court need not address the remaining elements. Thus, plaintiff’s Title VII hostile work
environment claim against Monmouth Regional High must be dismissed.
To establish a hostile work environment claim under New Jersey LAD, the elements are
similar to the elements required under Title VII. Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir.
2001); see also Schurr v. Resorts Int'l Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999) (“Analysis of
a claim made pursuant to the NJLAD generally follows analysis of a Title VII claim.”). Therefore,
the plaintiff’s hostile work environment claim under New Jersey LAD fails for the same reasons as
her Title VII claim.
2.
Sex Discrimination- Disparate Treatment
The plaintiff also argues, but does not specifically plead, that the reason she was denied the
cheerleading coach position was because of sex discrimination in violation of Title VII. Defendants
argue that plaintiff has failed to establish sex discrimination under the McDonnell Douglas burdenshifting analysis. Under McDonnell Douglas the analysis requires three steps. McDonnell Douglas
Corp. v. Green, 411 U.S. 792, 802 (1973) and later clarified in Texas Dep't of Cmty. Affairs v.
Burdine, 450 U.S. 248 (1981), and St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502 (1993).
First,
plaintiff must establish a prima facie case of discrimination. McDonnell Douglas, 411 U.S. at 802.
To establish a prima facie case of sex discrimination under a disparate treatment theory, the plaintiff
must demonstrate (1) he or she is in a protected class; (2) qualified for the position; (3) subject to
an adverse employment action; and (4) the adverse employment action occurred under circumstances
that could give rise to an inference of intentional discrimination. Makky v. Chertoff, 541 F.3d 205,
214 (3d Cir. 2008). At this stage of the analysis, plaintiff’s evidentiary burden is “rather modest”
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as the plaintiff only needs to demonstrate that “discrimination could be a reason for the employer’s
action.” Marzano v. Computer Sci. Corp., 91 F.3d 497, 508 (3d Cir. 1996).
Discrimination may be inferred when a similarly situated employee who is not within the
protected class was treated more favorably. See. e.g., Jones v. Sch. Dist. of Phila., 198 F.3d 403,
413 (3d Cir. 1999). However, a plaintiff is not required to show that the employer hired someone
else who is not within the protected class, because “even if a woman is fired and replaced by another
woman, she may have been treated differently from similarly situated male employees.” Pivirotto
v. Innovative Systems, Inc., 191 F.3d 344, 353-54 (3d Cir. 1999). For example, a female employee
may be discharged for making a single mistake while a male employee may not be discharged despite
making numerous mistakes, but the female employee is replaced by another female who is expected
to meet a biased standard. See id. at 355.
Once the plaintiff establishes the prima facie case for discrimination, the burden shifts to the
employer to “articulate some legitimate, nondiscriminatory reason” for the adverse employment
action. McDonnell Douglas, 411 U.S. at 802. The burden then shifts back to the plaintiff to
establish by a preponderance of evidence that the employer’s articulated reason was a pretext for
discrimination. Id.; Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). To defeat
summary judgment, the plaintiff must demonstrate “some evidence, direct or circumstantial, from
which a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate
reasons; or (2) believe that an invidious discriminatory reason was more likely than not a motivating
or determinative cause of the employer’s action. Fuentes, 32 F.3d at 764.
In evaluating the facts in the light most favorable to the plaintiff, the plaintiff has not
established a prima facie case for sex discrimination. For the first element, it is undisputed that
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plaintiff is within a protected class as a female. See, e.g., Scheidemantle v. Slippery Rock Univ. State
Sys. of Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006). As to the second element, plaintiff was
qualified for the available cheerleading coach position due to her ten years prior experience as the
varsity cheerleading coach from fall 1995 to spring 2005 at Monmouth Regional High. As to the
adverse action, plaintiff alleges she was forced to resign in spring 2005 as the varsity cheerleading
coach and was no longer hired as a cheerleading coach for the 2007/2008 season through the
2009/2010 season. As to the fourth element, an inference of intentional sex discrimination cannot
be drawn from the facts plaintiff has alleged. First, plaintiff has alleged no facts of similarly situated
male coaches who were treated more favorably. The employer also provided four reasons as to why
plaintiff would not be recommended for the coaching position. These reasons, which were based
on attendance and violations of administrative policies, were legitimate and non-discriminatory.
Additionally, the statements defendants allegedly made that plaintiff complained too much or that
she should consult a lawyer do not give rise to an inference of intentional sex discrimination.
Defendants argue that “[t]he plaintiff cannot simply show that the employer’s decision was
wrong or mistaken, since the factual dispute at issue is whether discriminatory animus motivated the
employer, not whether the employer is wise, shrewd, prudent, or competent.” Fuentes v. Perskie, 32
F.3d 759 (3d Cir. 1994). Mere dislike also does not necessarily rise to the level of discrimination
unless the disparate treatment is motivated by discrimination. See Baker v. City of Phila., 405 Fed.
App’x 599, 602 (3d Cir. 2010). Since plaintiff is unable to show that the employer’s adverse
employment action was motivated by discrimination, she has failed to establish a prima facie case
and her sex discrimination based on disparate treatment claim must be dismissed as a matter of law.
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3.
Retaliation
Plaintiff has also raised a retaliation claim in violation of Title VII under 42 U.S.C. § 2000e3(a) and New Jersey LAD, N.J.S.A. 10:5 et seq. Plaintiff alleges that she was denied the assistant
cheerleading coach position for the 2009/2010 season and the affirmative action officer position
because she raised the issue of unequal pay for coaches and funding for female athletics programs
at the June 2008 Board of Education meeting, filed an EEOC complaint in July 2008, and filed this
lawsuit in August 2009.
Title VII protects employees who attempt to exercise their rights guaranteed under the Act
against retaliation by employers. 42 U.S.C. § 2000e-3(a). To establish a prima facie case for
retaliation under Title VII and New Jersey LAD, a plaintiff must show (1) the employee engaged in
a protected activity2; (2) the employer took an adverse employment action either after or
contemporaneous with the employee’s protected activity; and (3) a causal link exists between the
employee’s protected activity and the employer’s adverse action. Abramson v. William Paterson
College of New Jersey, 260 F.3d 265, 286 (3d Cir. 2001). If the plaintiff is able to establish a prima
facie case, then the McDonnell Douglas burden shifting analysis, as discussed above, is applied.
Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997); see also Woodson v. Scott Paper Co.,
109 F.3d 913, 920 (3d Cir. 1997).
Examples of activities that are protected under Title VII include opposing any practice made
unlawful by Title VII; making a charge of employment discrimination; testifying, assisting, or
participating in any manner in an investigation, proceeding or hearing under Title VII, and filing an
2
Under New Jersey LAD, the first element requires an employee to show that he or
she engaged in a protected activity that is known to the employer. Craig v. Suburban
Cablevision, Inc., 140 N.J. 623, 629 (1995) (emphasis added).
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EEOC complaint. 42 U.S.C. § 2000e-3(a); see also Woodson,109 F.3d at 920. It is undisputed that
plaintiff engaged in protected activities such as speaking at the June 2008 board meeting, filing an
EEOC complaint in July 2008, and filing this lawsuit in August 2009. However, defendants argue
that plaintiff cannot satisfy the second and third elements to establish a prima facie case.
As to the second element, plaintiff avers that she was denied the assistant cheerleading coach
position for the 2009/2010 and the affirmative action officer position in 2007. Defendants note that
plaintiff was denied the affirmative action officer position in September 2007 prior to plaintiff
engaging in any protected activities. Because the denial of the affirmative action officer position
occurred prior to plaintiff engaging in any protected activities, that denial does not qualify as an
adverse employment action. The only adverse employment action that occurred after plaintiff
engaged in the aforementioned protected activities is the denial of the assistant cheerleading coach
position for fall 2009.
As to the third element, a court must determine if there is a causal link between the denial
of the assistant cheerleading coach position and the protected activities. Woodson,109 F.3d at 920.
The plaintiff may establish a causal connection by circumstantial evidence such as temporal
proximity, a patter of antagonism, and pretext. Kachmar v. SunGuard Data Sys., 109 F.3d 173, 177
(3d Cir. 1997). However, temporal proximity alone is insufficient to support a causal link between
the protected activity and the adverse employment action. Krouse, 126 F.3d at 503. If temporal
proximity is absent, a plaintiff may show a pattern of intervening antagonism or retaliatory animus
during the passage of time. Id. at 503-04. Moreover, causation is not limited to temporal proximity
if other evidence in the record establishes sufficient inferences of a causal connection. Farrell v.
Planter’s Lifesavers Co., 206 F.3d 271, 279 (3d Cir. 2000). Causation can also be established by
15
a showing that the employer’s reason for termination were vague and inconsistent. Abramson, 260
F.3d at 289.
In th present matter, temporal proximity is too remote to establish causation. The plaintiff
spoke at the Board of Education meeting in June 2008 and filed an EEOC complaint in July 2008.
Thereafter, approximately a year and a half passed from these protected activities to when plaintiff
was denied the assistant cheerleading coach position in December 2009. Plaintiff also provided no
evidence of intervening antagonism or retaliatory animus by the defendants during that year and a
half period. Although plaintiff filed this lawsuit in August 2009, which was only four months prior
to the denial of the assistant coaching position, the lawsuit is based on plaintiff’s prior claims as
discussed at the Board of Education meeting and the EEOC complaint. As to other factors for
causation, the record reflects that the plaintiff was previously denied coaching positions since fall
2007 prior to plaintiff engaging in any protected activities. In addition, plaintiff continued to be
employed as a teacher, which further negates evidence of alleged retaliation. Plaintiff has also not
provided any evidence that the defendants offered inconsistent or vague reasons for denying plaintiff
the coaching position. Thus, plaintiff cannot establish a causal link between the protected activity
and the adverse employment action.
The plaintiff has failed to establish a prima facie case for retaliation, and therefore the Court
does not need to conduct a McDonnell Douglas burden shifting analysis. The standard for retaliation
under New Jersey LAD is the same analysis previously applied to Title VII retaliation claims.
Woodson, 109 F.3d at 920 (applying the McDonnell Douglas burden shifting analysis to federal and
state retaliation claims); Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1087-88 (3d Cir. 1996)
(finding that New Jersey LAD claims “parallel” Title VII claims). Thus, plaintiff’s New Jersey
16
LAD claim for retaliations fails for the same reasons as the Title VII retaliation claim. Accordingly,
plaintiff’s sixth and eighth count for retaliation under Title VII and New Jersey LAD are dismissed
as a matter of law.
C.
Plaintiff’s Section 1983 First Amendment Retaliation Claim
Plaintiff asserts that the denial of the assistant cheerleading coach position was because she
attended a Board of Education meeting in June 2008 where she raised the issue of unequal pay and
funding between male and female athletics at Monmouth Regional High. Plaintiff also asserts that
she associated with other female employees who voiced similar complaints about the disparities in
funding between male and female athletics at the high school. Plaintiff argues that in denying her
the coaching position, defendants deprived her First Amendment right to free speech and freedom
of association in violation of 42 U.S.C. § 1983.
To state a claim under Section 1983, a plaintiff must establish that defendants acted under
color of state law to deprive plaintiff of federal or constitutional rights. Am. Mfrs. Mut. Ins. Co. v.
Sullivan, 526 U.S. 40, 49-50 (1999); Groman v. Twp. of Manalapan, 47 F.3d 628, 633 (3d Cir.
1995). It is undisputed by the parties that Mr. Cleary, Mr. Teeple, and Mr. DeOrio are state actors
because they are school administrators of Monmouth Regional High, a public institution. Next, the
court must “identify the exact contours of the underlying right said to have been violated” and then
determine “whether the plaintiff has alleged a deprivation of a constitutional right at all.” Cty. of
Sacramento v. Lewis, 523 U.S. 833, 841 (1998).
A plaintiff may bring a First Amendment retaliation claim under Section 1983 when
a state actor retaliates against the plaintiff based on the plaintiff’s protected speech. Bradshaw v.
Twp. of Middletown, 145 F. App’x. 763, 766-67 (3d Cir. 2005). To prove a First Amendment
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retaliation claim, the plaintiff must demonstrate (1) the speech was protected by the First
Amendment because it addressed a matter of public concern; and (2) the protected speech was a
substantial or motivating factor in the alleged retaliation against the plaintiff. Reilly v. City of
Atlantic City, 532 F.3d 216, 224 (3d Cir. 2008). The first factor is a question of law while the
second factor is a question of fact. Gorum v. Sessoms, 561 F.3d 179, 184 (3d Cir. 2009)(citing Hill
v. Borough of Kutztown, 455 F.3d 225, 241 (3d Cir. 2006)). If the plaintiff cannot satisfy the first
element “the employee has no First Amendment cause of action based on his or her employer’s
reaction to the speech.” Garcetti v. Ceballos, 547 U.S. 410, 418 (2006).
The plaintiff’s speech must also be balanced against the government employer’s
countervailing interest in promoting the efficiency of public services it performs through its
employees, known as the Pickering balance. Pickering v. Bd. Of Educ., 391 U.S. 563 (1968); Reilly,
532 F.3d at 224. If the plaintiff is able to prove these elements then the burden shifts to the employer
to prove that the alleged retaliatory action would have occurred absent the protected speech. See
Reilly, 532 F.3d at 232. The plaintiff may then rebut the employer’s rationale by arguing that the
discipline imposed was a pretext for retaliation. Id.
Defendants argue that plaintiff cannot establish that her speech was protected by the First
Amendment because it was not a matter of public concern. Defendants reference the minutes, which
provide that plaintiff “expressed her concerns over the recent coaching appointment for fall
cheerleading,” and that two parents also expressed similar concern for the cheerleading position.
Defendants argue that plaintiff only expressed concern over the cheerleading coach appointment for
the fall season and her personal employment situation. Defendants further argue that even assuming
plaintiff complained about the inequalities facing the cheerleading team and female athletics overall,
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the plaintiff cannot demonstrate that her complaints at the Board of Education meeting were a
substantial or motivating factor in the alleged retaliation against her.
The First Amendment protects a public employee’s speech if the employee speaks as a citizen
on a matter of public concern. Garcetti v. Ceballos, 547 U.S. 410, 417 (2006). A public employee’s
speech is a matter of public concern when it relates to an issue of “political, social, or other concern
to the community.” Connick, 461 U.S. at 138. Whether the speech is a matter of public concern can
be further “determined by the content, form, and context of a given statement.” Id. Relevant to this
inquiry is the speaker’s motivation to determine if the speech was of public concern or personal
interest. Id. At 149; see also Versarge v. Twp. of Clinton New Jersey, 984 F.2d 1359, 1364 (3d Cir.
1993).
Here, the plaintiff has alleged that on several occasions she raised complaints to school
administrators about unequal pay for coaches and funding between the male and female athletic
programs. The minutes from the Board of Education meeting only provides a brief statement of
plaintiff’s comment and does not describe whether the plaintiff actually raised issues of public
concern as plaintiff alleges. Upon reviewing the facts in the light most favorable to the plaintiff, the
plaintiff may have raised issues of public concern regarding unequal pay for coaches and funding
for female athletics programs and cheerleading in particular; especially considering plaintiff’s prior
history of complaints on this same issue. However, even if plaintiff’s speech was of a public
concern, the plaintiff has not set forth sufficient facts to determine that plaintiff’s speech was a
substantial or motivating factor for the alleged retaliation. When reviewing evidence in the record
and in a light most favorable to the plaintiff, the plaintiff has not established evidence of retaliation.
Plaintiff was denied coaching positions since 2006, which was prior to her public speech, and the
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only act of retaliation would be the denial of the assistant coaching position in December 2009.
Additionally, plaintiff remained employed as a teacher at Monmouth Regional High. As previously
discussed in the Title VII retaliation analysis, the plaintiff was denied coaching positions on several
occasions and only once after her public speech, which indicates that the speech was not a substantial
or motivating factor in the denial of the assistant coaching position.
Even assuming plaintiff raised a genuine issue of material fact that her speech was a
substantial or motivating factor for alleged retaliation, the burden shifts to the defendant to
demonstrate that the alleged retaliatory action would have occurred absent the protected speech.
Defendants argue that each year they have recommended the best candidate for the cheerleading
coach position. Defendants further argue that the plaintiff’s complaints had no bearing on their
decision against hiring her for the coaching position. In support of their hiring decisions, defendants
cite to Connick v. Myers, 461 U.S. 138, 151 (1983) where the Court held that the “Government, as
an employer, must have wide discretion, and control over the management of its personnel and
internal affairs.” The defendants have offered a legitimate rationale that plaintiff was not the best
candidate for the coaching job and was denied the position several times prior to her public speech,
and denied once after the speech.
To rebut defendants’ rationale, plaintiff argues that there was a pretext and relies on the fact
that the job was improperly posted and had to be re-posted in December 2009. This fact does not
sufficiently rebut the defendant employer’s rationale, nor other evidence in the record that
demonstrates that plaintiff was denied coaching positions several times prior to her public speech
to establish pretext. Thus, plaintiff’s First Amendment retaliation claim must be dismissed as a
matter of law.
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D.
Plaintiff’s Equal Pay Act Claim
Plaintiff is seeking damages under the Equal Pay Act, 29 U.S.C. § 206(d)(1) based on
assertions that male coaches received higher salaries and annual increases than female coaches for
performing comparable work. Defendants argue that plaintiff’s Equal Pay Act claim is time barred
by the applicable statute of limitations.
The statute of limitations for an Equal Pay Act claim is set forth in the statute as two years
from when the cause of action accrues, and three years for a willful violation. 29 U.S.C. § 255(a).
In this Circuit, sex based discriminatory wage payments constitute a “continuing violation” of the
Equal Pay Act, but the timeliness of an Equal Pay Act claim is measured from the date of an
aggrieved employee’s last paycheck. Carenas v. Massey, 269 F.3d 251, 257 (3d Cir. 2001); Miller
v. Beneficial Mgmt. Corp., 977 F.2d 834, 843-44 (3d Cir. 1992). Defendants assert that plaintiff
received her last paycheck as a cheerleading coach on February 28, 2005 for the spring season.
Accordingly, the plaintiff has not timely filed an Equal Pay Act claim since her complaint would
need to have been filed, at the latest, by February 28, 2008 to assert a willful violation. However,
the plaintiff filed her first complaint in this Court on August 22, 2009. Plaintiff did not oppose
defendants’ arguments as to the dismissal of this count. Accordingly, the Court will not address the
merits of plaintiff’s Equal Pay Act claim. Thus, plaintiff’s Equal Pay Act claim is time barred and
is dismissed as a matter of law.
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III.
CONCLUSION
For these reasons, defendants’ motion for summary judgment is granted.
ORDER
It is on this 16th day of March, 2012:
ORDERED that defendants’ motion for summary judgment is GRANTED (ECF No. 19);
and it is further
ORDERED that the Clerk is directed to close this case.
s/Peter G. Sheridan
PETER G. SHERIDAN, U.S.D.J.
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