EVERETT v. STATE OF NEW JERSEY DEPARTMENT OF CORRECTIONS et al
Filing
42
MEMORANDUM OPINION. Signed by Judge Mary L. Cooper on 5/28/2013. (gxh)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
WAYNE A. EVERETT, JR.,
CIVIL ACTION NO. 10-3412 (MLC)
MEMORANDUM OPINION
Plaintiff,
v.
STATE OF NEW JERSEY (DEPARTMENT
OF CORRECTIONS), et al.,
Defendants.
COOPER, District Judge
I.
INTRODUCTION
The plaintiff, Wayne A. Everett, Jr., a former employee of
the Special Investigations Division (“SID”) of the New Jersey
Department of Corrections (“NJDOC”), brings the action against the
defendants, the NJDOC (pleaded as State of New Jersey (Department
of Corrections)), George Hayman, Thomas Moran, Melinda Haley,
Richard McCourt, and Lydell Sherrer.
Compl.)
(See dkt. entry no. 1,
Everett alleges that the defendants unlawfully retaliated
against him for exercising his rights under the Family Medical
Leave Act of 1993, 29 U.S.C. § 2601, et seq. (“FMLA”).
Count I, FMLA Claim.)
(See id. at
He also alleges that the defendants
unlawfully retaliated against him for unrelated whistle-blowing
activity, in violation of the New Jersey Conscientious Employee
Protection Act, N.J.S.A. § 34:19-1, et seq. (“CEPA”).
(See id. at
Count II, CEPA Claim.)
The Court has jurisdiction over the FMLA
Claim pursuant to 28 U.S.C. § 1331 and over the CEPA Claim pursuant
to 28 U.S.C. § 1367(a).
The NJDOC, Hayman, Moran, Haley, and McCourt (“the Moving
Defendants”) now move for summary judgment in their favor and
against Everett.
(See dkt. entry no. 28, Mot.)1
CEPA bars assertion of the FMLA Claim.
Br. in Supp. at 6-7.)
They argue that
(See dkt. entry no. 28-2,
They also argue that Everett has not
produced sufficient evidence to establish a prima facie claim for
retaliation under either the FMLA or CEPA.
Everett opposes the Motion.
(See id. at 7-26.)
(See dkt. entry no. 35, Opp’n Br.)
The Court now resolves the Motion without oral argument.
L.Civ.R. 78.1(b).
See
For the reasons that follow, the Court concludes
that Everett has not established a prima facie claim of retaliation
under the FMLA.2
The Court will thus grant the Motion insofar as
it concerns the FMLA Claim and enter judgment on that claim against
Everett and in the Moving Defendants’ favor.3
The Court will also
1
The Magistrate Judge earlier stayed the action insofar as it
concerns Sherrer. (See dkt. entry no. 34, 10-12-12 Letter Order.)
2
Because the Court resolves the FMLA Claim on this ground,
the Court does not reach the so-called CEPA preclusion argument.
3
The Court will also dismiss Sherrer from the action, insofar
as the FMLA Claim was raised against him. (See 10-12-12 Letter
Order (noting parties’ agreement that Sherrer should, to the extent
that the Motion is granted, be dismissed from the action).)
2
dismiss the CEPA Claim without prejudice to recommence that part of
the action in state court.
II.
See 28 U.S.C. § 1367(c)(3).
STANDARD OF REVIEW
Summary judgment is proper pursuant to Federal Rule of Civil
Procedure (“Rule”) 56 “if the movant shows that there is no genuine
dispute as to any material fact and the movant is entitled to
judgment as a matter of law.”
Fed.R.Civ.P. 56(a).
The movant carries the initial burden of demonstrating an
absence of genuinely disputed material facts.
Catrett, 477 U.S. 317, 330 (1986).
See Celotex Corp. v.
Material facts are those that
“could affect the outcome” of the proceeding, and “a dispute about
a material fact is ‘genuine’ if the evidence is sufficient to
permit a reasonable jury to return a verdict for the non-moving
party.”
Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011)
(citation omitted).
The Court, when determining whether the movant
has carried this burden, must view the evidence in the light most
favorable to and draw all reasonable inferences in favor of the
non-movant.
Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v.
Potter, 476 F.3d 180, 184 (3d Cir. 2007).
If the movant carries that burden, then the burden shifts to
the non-movant to demonstrate the existence of at least one genuine
issue for trial.
See Matsushita Elec. Indus. Co., Ltd. v. Zenith
Radio Corp., 475 U.S. 574, 586–87 (1986); Williams v. Bor. of W.
3
Chester, Pa., 891 F.2d 458, 460–61 (3d Cir. 1989).
“Where the
record taken as a whole could not lead a rational trier of fact to
find for the non-moving party, there is no genuine issue for
trial.”
Matsushita Elec. Indus. Co., 475 U.S. at 587 (citation
omitted) (internal quotation marks omitted).
The non-movant must
show that such issues exist by reference to the evidence of record.
See Fed.R.Civ.P. 56(c)(1); Matsushita Elec. Indus. Co., 475 U.S. at
586.
The non-movant may not rely solely on argument, speculation
or conjecture, or inferences that rise therefrom.
See Lamont, 637
F.3d at 182 (“[T]he party opposing summary judgment . . . must
point to evidence -- whether direct or circumstantial -- that
creates a genuine dispute of material fact, ‘and may not rely
simply on the assertion that a reasonable jury could discredit the
opponent[s’] account.’” (citation omitted) (latter alteration in
original)); Kovalev v. City of Phila., 362 Fed.Appx. 330, 331 (3d
Cir. 2010); Robertson v. Allied Signal, Inc., 914 F.2d 360, 382
n.12 (3d Cir. 1990).
If the non-movant fails to show the existence of at least one
genuine issue of material fact, then the burden shifts back to the
movant to show an entitlement to judgment as a matter of law.
A
movant is entitled to such judgment if, at trial, no reasonable
jury could find for the non-moving party.
See Celotex Corp., 477
U.S. at 325; In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003).
4
“‘[T]he burden on the moving party may be discharged by ‘showing’
-- that is, pointing out to the district court -- that there is an
absence of evidence to support the nonmoving party’s case’ when the
nonmoving party bears the ultimate burden of proof.”
Conoshenti v.
Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004)
(citation omitted).
The United States Court of Appeals for the Third Circuit has
repeatedly cautioned parties opposing summary judgment to support
their argument by reference to the record.
See DeShields v. Int’l
Resort Props. Ltd., 463 Fed.Appx. 117, 120 (3d Cir. 2012) (“If
factual support for [the plaintiff’s] claim existed in the record,
it was incumbent upon her to direct the District Court’s attention
to those facts.”); Perkins v. City of Elizabeth, 412 Fed.Appx. 554,
555 (3d Cir. 2011) (“[A] court is not obligated to scour the record
to find evidence that will support a party’s claims. . . .
Courts
cannot become advocates for a party by doing for that party what
the party ought to have done for him or herself.”).
Indeed, that
court has noted that “[j]udges are not like pigs, hunting for
truffles buried in briefs.”
DeShields, 463 Fed.Appx. at 120
(quoting United States v. Starnes, 583 F.3d 196, 216 (3d Cir. 2009)
(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.
1991))) (alteration in original).
5
III. BACKGROUND
Everett began working for SID in 1993.
(See dkt. entry no.
28-8, Ex. B to Kemether Certification, Everett Dep. at 23:12-14.)
In May of 2006, he was promoted to the position of Assistant Chief
Investigator.
(See id. at 16:15-19, 21:15-24.)
On or about
February 1, 2009, following the retirement of his supervisor, the
Chief Investigator, Everett “began supervising the day to day
operations of the SID, in an acting capacity only, without the
actual title or any increased compensation.”
(Dkt. entry no. 28-1,
Moving Defs.’ Statement of Facts (“SOF”) at ¶ 18 (emphasis in
original); see also Everett’s Response to Moving Defs.’ SOF at
¶ 18.)4
Everett submitted a request for “family leave” in 2009, during
his time as the acting Chief Investigator of the SID.
(See dkt.
entry no. 28-21, Ex. R to Kemether Certification, Certification of
Health Care Provider for Family Member’s Serious Health Condition
at 1.)
The NJDOC approved Everett’s request, and Everett took
intermittent leave from the SID between February 28, 2009 and March
10, 2009.
(See Everett Dep. at 181:17-182:21; dkt. entry no.
28-21, 3-30-09 Mem. from Judith Todd to Everett (approving the
request).)
4
Where, as here, both the Moving Defendants and Everett have
affirmatively agreed on statements of fact, the Court relies on the
Moving Defendants’ SOF and Everett’s response thereto.
6
Everett continued to unofficially supervise the day to day
operations of the SID until July 27, 2009, when he was appointed as
the Chief Investigator of the SID on a provisional basis.
(See
dkt. entry no. 28-20, Ex. Q to Kemether Certification, 7-22-09 Mem.
from Todd to Hayman, et al.; see also Everett Dep. at 18:3-6
(recognizing that the appointment was for a “provisional title,”
which was issued “pending promotional examination”).)
He continued
to serve the SID in that capacity until early December of 2009,
when he was removed as Chief Investigator and returned to his role
as an Assistant Chief Investigator.
(See dkt. entry no. 28-14, Ex.
K to Kemether Certification, 12-8-09 Mem. from Haley to Everett.)
IV.
ANALYSIS
A.
Everett Has Failed to Establish a Prima Facie Claim of
Retaliation under the FMLA
To prevail on a retaliation claim under the FMLA, a plaintiff
must prove that: (1) he invoked his right to FMLA-qualifying leave;
(2) he suffered an adverse employment decision; and (3) the adverse
action was causally related to his invocation of rights under the
FMLA.
Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294,
301-02 (3d Cir. 2012).
Because FMLA retaliation claims require
proof of the employer’s retaliatory intent, courts assess such
claims through the lens of employment discrimination law.
302.
Id. at
Accordingly, claims based on circumstantial evidence are
assessed under the burden-shifting framework that was established
7
in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1976).
Id. at
302, 302 n.11; see also Colburn v. Parker Hannifin/Nichols Portland
Div., 429 F.3d 325, 331-32 (1st Cir. 2005); Portenza v. City of
N.Y., 365 F.3d 165, 167-68 (2d Cir. 2004).
Under the McDonnell Douglas framework, Everett has the initial
burden of production, insofar as he must establish a prima facie
claim of retaliation under the FMLA.
To do so, he must point to
evidence of record sufficient to create a genuine factual dispute
about each element of the FMLA Claim, i.e.: (1) invocation of an
FMLA right; (2) an adverse employment action; and (3) causation.
Lichtenstein, 691 F.3d at 302.5
Everett offers the following argument in opposition to the
Motion, and in support of his contention that he can establish a
prima facie claim of retaliation under the FMLA:
In the present case the Plaintiff has proven that
he took approved FMLA leave in February and March 2009,
after assuming the day to day role of Acting Chief SID.
Plaintiff can also show he suffered an adverse
employment decision; being removed as Acting Chief in
December 2009. Finally, Everett cal [sic] also show a
causal connection between his exercising FMLA leave and
5
If Everett met this burden, then the burden of production
would shift to the Moving Defendants to “articulate some
legitimate, nondiscriminatory reason” for the adverse employment
action. Lichtenstein, 691 F.3d at 302 (quoting McDonnell Douglas,
411 U.S. at 802). And if the Moving Defendants met “this minimal
burden,” then the burden of production would shift back to Everett,
who would be required to “point to some evidence, direct or
circumstantial, from which a factfinder could reasonably disbelieve
[the Moving Defendants’] articulated legitimate reasons.” Id.
(citation omitted).
8
his subsequent removal. Defendant [McCourt] told him he
wasn’t there enough when advised by Everett that he had
utilized approved FMLA leave he was informed by
[McCourt] that he didn’t care.
(Opp’n Br. at 8.)
The Court need not address the merits of Everett’s argument.
It is sufficient to note that Everett has failed to meet the burden
of production set forth in Rule 56 and related cases; he has failed
to show that at least one genuine issue of disputed fact exists by
reference to the record.
(See id.)
But see Fed.R.Civ.P. 56(c)(1);
DeShields, 463 Fed.Appx. at 120; Perkins, 412 Fed.Appx. at 555.
Neither his brief nor his response to the Moving Defendants’ SOF
references evidence of record.6
Because Everett is represented by
counsel, the Court will neither liberally construe his opposition
papers nor scour the record on his behalf.
If the Court addressed the merits of Everett’s argument, then
the Court would nonetheless conclude that he cannot establish a
prima facie case of retaliation under the FMLA.
Specifically, he
has failed to carry his burdens of production and persuasion as
they pertain to causation.
6
The Court has reviewed “Plaintiff Everett’s Counter
Statement [sic] of Uncontested Material Facts in Support of His
Opposition to Defendants [sic] Motion for Summary Judgment,” which
properly references the record. (See dkt. entry no. 35, Everett’s
SOF.) However, the Court has concluded that none of the statements
contained in that document affect the resolution of the FMLA Claim.
9
Everett appears to argue that he was removed as Chief
Investigator of the SID in December of 2009 because he took
intermittent leave under FMLA between February 28, 2009 and March
10, 2009, approximately nine months earlier.
He offers no other
evidence to support his claim.7
Everett’s argument runs afoul of well-settled law regarding
temporal proximity.
The temporal proximity between an employer’s
knowledge of protected activity and an adverse employment action
cannot suffice to establish a prima facie case of retaliation under
the FMLA unless the temporal proximity could be construed as “very
close” or “unusually suggestive”.
LeBoon v. Lancaster Jewish Cmty.
Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007) (citations omitted).
Such temporal proximity will not be construed as “very close” if it
meets or exceeds three months.
See Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 273 (2001).
Because the protected activity
and adverse employment action here were separated by approximately
7
Everett states in the Opposition Brief that McCourt, when
advising Everett of his removal from the position of Chief
Investigator, cited Everett’s excessive absenteeism and advised
Everett that he “didn’t care” about Everett’s exercise of FMLA
leave. (See Opp’n Br. at 8.) It appears that Everett has
misconstrued the record. McCourt’s comments about absenteeism were
directed toward Everett’s on-the-job performance between April 11,
2009 and December 2, 2009. (See dkt. entry no. 28-13, Ex. J to
Kemether Certification, 12-2-09 Mem. from McCourt to Haley; see
also Everett Dep. at 127:13-14 (demonstrating that Everett met with
McCourt and Haley), 132:17-133:13 (referring to McCourt’s comments
during a meeting on December 4, 2009). Because that period does
not include the period when Everett exercised his rights under
FMLA, such leave was immaterial to his discussion with McCourt.
10
nine months, and because no other evidence supports the FMLA Claim,
the FMLA Claim would fail.
B.
The Court Will Dismiss the CEPA Claim Without Prejudice
to Recommence that Part of the Action in State Court
Where, as here, the Court has resolved all claims over which
the Court has original jurisdiction, the Court has discretion to
decline to exercise supplemental jurisdiction over the remaining
claims.
See 28 U.S.C. § 1367(c)(3).
It has consistently been recognized that pendent
jurisdiction is a doctrine of discretion, not of
plaintiff’s right. . . . Needless decisions of state
law should be avoided both as a matter of comity and to
promote justice between the parties, by procuring for
them a surer-footed reading of applicable law.
Certainly, if the federal claims are dismissed before
trial, even though not insubstantial in a jurisdictional
sense, the state claims should be dismissed as well.
United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (footnotes
omitted); see also Byrd v. Shannon, No. 11-1744, 2013 WL 1760848,
at *9 (3d Cir. Apr. 25, 2013).
“Under Gibbs jurisprudence, where
the claim over which the district court has original jurisdiction
is dismissed before trial, the district court must decline to
decide the pendent state claims unless considerations of judicial
economy, convenience, and fairness to the parties provide an
affirmative justification for doing so.”
Bor. of W. Mifflin v.
Lancaster, 45 F.3d 780, 788 (3d Cir. 1995).
It does not appear
that such considerations are controlling here.
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V.
CONCLUSION
The Court will grant the Motion insofar as it concerns the
FMLA Claim.
The Court will accordingly enter judgment on that
claim in the Moving Defendants’ favor and against Everett, and, for
the reasons stated in note 3, supra, dismiss Sherrer from the
action insofar as the FMLA Claim was raised against him.
The CEPA
Claim will be dismissed without prejudice to Everett to recommence
that portion of the action in an appropriate state court pursuant
to 28 U.S.C. § 1367(d).
The Court will enter a separate order and
judgment.
s/ Mary L. Cooper
.
MARY L. COOPER
United States District Judge
Date:
May 28, 2013
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