MARRIN v. CAPITAL HEALTH et al
OPINION filed. Signed by Judge Freda L. Wolfson on 5/31/2017. (km)
**NOT FOR PUBLICATION**
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
Civil Action No. 14-2558 (FLW)(LHG)
CAPITAL HEALTH SYSTEMS, INC.,
JOAN DUVALL, and CAROLANN BASS, :
WOLFSON, United States District Judge:
Before the Court are the cross motions of Plaintiff Janice Marrin (“Plaintiff” or “Marrin”)
and Defendants Capital Health Systems, Inc., Joan DuVall, and Carolann Bass (“Defendants”)
for summary judgment on the claims raised in Plaintiff’s Second Amended Complaint under the
New Jersey Conscientious Employee Protection Act, N.J. Stat. Ann. §§ 34:19-1 et. seq.
(“CEPA”), New Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-12 (“NJLAD”), and
the Family Medical Leave Act of 1993, 29 U.S.C. §§ 2601 et. seq. (“FMLA”). Plaintiff contends
that Defendants discriminated against, interfered with, and retaliated against Plaintiff on the basis
of her taking FMLA protected leave by terminating her after the completion of an allegedly
fraudulent progressive discipline program. Defendants contend that Plaintiff has failed to state a
prima facie case for discrimination or retaliation, and, in any event, was terminated for a
legitimate business purpose after she failed to cooperate with Defendants’ internal investigation
into missing confidential documents, some of which were found in Plaintiff’s possession. For the
reasons that follow, this Court grants summary judgment in favor of Defendants on all Counts of
the Second Amendment Complaint and denies Plaintiff’s cross motion.
I. FACTUAL BACKGROUND & PROCEDURAL HISTORY
Plaintiff began working for Defendant Capital Health Systems, Inc. (“Defendant” or
“Capital Health”) in Trenton, New Jersey, in November 2005. Tr. of Aug. 20 and Aug. 27, 2015
Dep. of Janice Marrin (“Marrin Dep.”), at 35:8-18; Defendants’ Statement of Material Facts
(“DSMF”) ¶ 1. Capital Health hired Plaintiff as a medical laboratory technician (“lab tech”) to
work in the microbiology lab at what was then known as the Helene Fuld campus of Capital Health
Medical Center, under microbiology lab supervisor Betty Zaslavsky. Marrin Dep. 36:1-2, 60:1113, 59:9-22; DSMF ¶ 2. Zaslavsky’s supervisor was Len Levin, the laboratory director. Marrin
Dep. 36:5-7, 59:14-24; DSMF ¶ 3. Levin managed both of Capital Health’s laboratories, only one
section of which was the microbiology lab. Decl. of Nancy Analore (“Analore Decl.”), at ¶ 4;
DSMF ¶ 4. Capital Health also employed a laboratory manager, Nancy Analore, to assist Levin in
overseeing the hospital’s labs. Analore Decl. ¶ 2; DSMF ¶ 5. Levin had previously worked with
Plaintiff at another hospital, St. Francis Medical Center, and the two enjoyed a good relationship.
Marrin Dep. 36:1-10; DSMF ¶ 6. Levin hired Plaintiff despite the fact that she was not a certified
laboratory technician, and “grandfathered” her into the position. Marrin Dep. 30:14-15; DSMF ¶
In 2010, the microbiology lab moved to a new location in Mercer County. Marrin Dep.
60:15-17; Analore Decl. ¶ 3; DSMF ¶ 8. In early 2010, Zaslavsky went out on medical leave and
eventually retired. Analore Decl. ¶ 5; see also Marrin Dep. 64:13-17; DSMF ¶ 9. Capital Health
then hired Carolann Bass to assume Zaslavsky’s position as the microbiology lab supervisor. Decl.
of Carolann Bass (“Bass Decl.”) at ¶ 2; see also Marrin Dep. 64:13-24; DSMF ¶ 10. Bass reported
for a time to Levin as the lab director, until Capital Health terminated his employment in mid2012. Analore Decl. ¶ 6; Bass Decl. ¶ 3; DSMF ¶ 11. The position of Lab Director at Capital
Health remained unfilled for approximately five months. Analore Decl. ¶ 6; DSMF ¶ 12.
In November 2012, Capital Health named Joan DuVall as the new lab director for the
hospital system, and Bass began reporting to DuVall. Bass Decl. ¶5; Decl. of Joan DuVall
(“DuVall Decl.”) at ¶ 2; see also Marrin Dep. 65:17-66:4; DSMF ¶ 13. Ms. DuVall was officially
hired and started work for Capital Health on December 10, 2012. DuVall Dep. Tr. 5:7. This date
is critical for the present motions because, although Plaintiff had regularly taken FMLA leave prior
to this date and had been subject to disciplinary actions by Capital Health for, inter alia,
unsatisfactory work performance, tardiness, and absenteeism, Plaintiff contends that the alleged
illegal discrimination, which is the subject of the present motions, began only after DuVall’s
hiring. Plaintiff’s Opposition and Cross Motion, 1 (“The only disciplinary actions and incidents
that are relevant are those that occurred after Defendant Joan DuVall was hired in November
2012.”). Plaintiff then took an approved FMLA leave from December 13, 2012 through December
23, 2012. Plaintiff’s Ex. 14.
In early January 2013, DuVall asked Plaintiff to wear a lab coat instead of the plastic apron
that Plaintiff preferred. See Marrin Dep. 227:5-228:13; DSMF ¶ 28. Plaintiff was upset by this
incident because she believed that DuVall unnecessarily “yelled” at her after Plaintiff had
questioned her immediate supervisor, Bass, whether the plastic apron was no longer appropriate
laboratory protective wear, as Plaintiff believed it had been under DuVall and Bass’s predecessors.
Plaintiff’s Counterstatement of Material Facts (“PCSMF” ¶ 28). Subsequently, Plaintiff went on
unscheduled PTO on January 7, 8, and 9. Plaintiff’s Ex. 14.
On January 16, 2013, Plaintiff and another lab tech engaged in a verbal “dispute” within
the microbiology lab. Marrin Dep. 100:5-101:23; DSMF ¶ 30. Plaintiff objects to the
characterization of this incident as a dispute, contending that she was only speaking to her
coworker to try to resolve “an issue” she perceived the coworker had with Plaintiff, which was
leading the coworker to report Plaintiff to DuVall and Bass. Marrin Dep Tr. 101:10-20. It is
undisputed, however, that the coworker was upset by this interaction and sought to involve
supervisors. Immediately after the incident occurred, Defendants contend that DuVall asked to
speak to Plaintiff about the incident while Plaintiff was at her laboratory station. Plaintiff did not
speak with DuVall and instead left the building. See id.; DuVall Decl. ¶ 5; DSMF ¶ 31. Plaintiff
contends that she left the building for 15 minutes for her morning break and that DuVall never
tried to speak with Plaintiff about this incident before Plaintiff received a written disciplinary
notification. PCSMF ¶ 31.
Ms. DuVall then directed Ms. Bass to issue a written warning for “inappropriate behavior
toward a coworker and job abandonment.” Marrin Dep. 132:22-133:17; Disciplinary Action
Notice dated 1/16/13, Defendants’ Ex. 5; Bass Decl. ¶ 8, Ex. 3; DuVall Decl. ¶ 6; DSMF ¶ 32.
This was Plaintiff’s fifth written warning in the seven years she had worked for Capital Health.
See Ex. 5. Plaintiff refused to sign it. See id. at Disciplinary Action Notice dated 1/16/13; DSMF
¶ 33. Analore asked DuVall to note Plaintiff’s attitude on her performance evaluation. See Jan.
2013 Email, Defendants’ Ex. 9; DSMF ¶ 34.
Meanwhile, DuVall had observed that the techs in every lab, including Plaintiff, were
failing to follow the written attendance and break policies. See Memo dated Jan. 30, 2013,
Defendants’ Ex. 10; DuVall Decl. ¶ 7; DSMF ¶ 35. In mid-January, Ms. DuVall verbally warned
Plaintiff regarding the break policy. Break Periods Policy with J. Marrin Notes, Defendants’ Ex.
11; DSMF ¶ 36. DuVall did not explicitly advise any employees of any change in the break policy.
PCSMF ¶ 36. Indeed, it is undisputed that Capital Health’s official, written break policy was not
changed in the period immediately before and after Ms. DuVall’s hiring.
Ms. DuVall also issued a memo to all lab staff in late January 2013, Memo dated Jan. 30,
2013, Defendants’ Ex. 10, which discussed the Hemolysis policy, the Charge Tech Policy, the
Attendance Policy, and the Smoking, Meal, and Breaks Policy. The memorandum emphasizes the
need to comply with those particular policies. Plaintiff categorizes the memorandum as reflecting
changes in policy.
On February 4 and 6, 2013, Marrin called out of work by leaving a message regarding her
absence on Bass’ office voicemail. She did not speak with the tech-in-charge of the lab that she
would be out for a period of time, nor did she speak directly with her supervisor, Ms. Bass. See
Disciplinary Action Notice dated 2/12/2013, Defendants’ Ex. 5; Bass Decl. ¶ 9; DSMF ¶ 38.
Calling out by leaving a voicemail violated the call out policy in place in February 2013. See
Policies dated Decl. 2006, Jan. 2009, Aug. 2011, and Feb. 2013, Defendants’ Ex. 12; DSMF ¶ 42.
The same policy had been in place during the entire length of Plaintiff’s tenure at Capital Health.
Ibid. Plaintiff does not, and cannot, dispute that she violated the written policy by leaving a
voicemail, but contends that her calling out did not violate the labs’ actual, unwritten policy which
had developed as a matter of custom during the seven years in which Plaintiff had worked for
Capital Health. Specifically, Plaintiff contends that, to that point, she had called out by leaving
voice messages periodically during the seven year length of her tenure, whenever there was not a
tech-in-charge or supervisor available to directly take her call. The parties agree that it is important
that lab techs properly communicate their absence and how long they expect to be out so that
appropriate shift coverage can be arranged. Marrin Dep. 145:17-22; DSMF ¶ 39.
On February 12, 2013, Ms. Bass issued a final written warning for the call out policy
violation. See Disciplinary Action Notice dated 2/12/2013, Defendants’ Ex. 5; Bass Decl. ¶ 10;
DSMF ¶ 40. Plaintiff protested the disciplinary action, claiming that she had called out the same
way she always had while working for her previous supervisors, and claiming that she did not
know the policy had “changed.” Marrin Dep. 136:3-17; DSMF ¶ 41. Plaintiff refused to sign the
disciplinary action notice. See Disciplinary Action Notice dated 2/12/2013, Defendants’ Ex. 5;
DSMF ¶ 43.
After her February 4, 2013 to February 8, 2013 leave (the leave for which she had been
disciplined on February 12 for not complying with the call out policy), Plaintiff called out again
from February 11 through February 15, 2013. Plaintiff’s Ex. 14. 1 Bass was unsure of how to code
Plaintiff’s absences, whether as FMLA, personal leave or as something else, because Plaintiff had
requested that the first two weeks of February not be counted against her FMLA leave, and so Bass
reached out via e-mail to DuVall and Analore. See Feb. 2013 Emails, Defendants’ Ex. 13; Bass
Decl. ¶11; DSMF ¶ 45.
Analore reminded Bass that it was the duty of all supervisors to track the time of their
employees. See Feb. 2013 Emails, Defendants’ Ex. 13; DSMF ¶ 48. There were a number of lab
employees who used both FMLA leave and other types of leave, and Analore’s concern was that
without proper coding, an employee ran the risk of not getting paid. Analore Decl. ¶13; DSMF ¶
In mid-February, Plaintiff made an appointment with Human Resources. See Feb. 15, 2013
Email, Exhibit 19; see also Decl. of Richard Werner (“Werner Decl.”) at ¶ 2; DSMF ¶ 63. Werner,
who had responsibility for the Hopewell campus, met with Plaintiff. See Feb. 15, 2013 Email,
Defendants’ Ex. 19; Werner Decl. ¶ 2; DSMF ¶ 64. At the meeting, Plaintiff complained to Werner
regarding alleged deficiencies in the microbiology lab, the attitudes of her co-workers and her last
two disciplinary actions, for engaging in inappropriate behavior with a coworker and violating
policy, which she claimed were unwarranted. Marrin Dep. 162:10-24, 175:21-177:3, 185:19187:18; Werner Decl. ¶ 3; Werner Notes, Defendants’ Ex. 21; DSMF ¶ 65.
After interviewing Plaintiff and obtaining the names of the lab techs with knowledge of
some of her complaints, Werner interviewed each of them. See Werner Tech Interview Notes,
The parties seem to agree that Plaintiff was present for some portion of February 12, 2013,
when she received her written discipline.
Defendants’ Ex. 22; Werner Decl. ¶ 6; DSMF ¶ 66. Werner found the lab tech’s testimony credible,
and determined that Plaintiff’s complaints were unfounded. Werner Decl. ¶ 6; DSMF ¶ 67. Since
Werner had no background in lab work or science, he referred Plaintiff’s complaints about the
alleged deficiencies in the microbiology lab to Bass to investigate. Werner Decl. ¶ 4; DSMF ¶ 68.
He also asked Plaintiff to provide him with a written document detailing her complaints, as well
as any documents that supported her claims. Werner Decl. ¶ 7; DSMF ¶ 69. Plaintiff did not
provide Werner with a written document detailing her complaints until shortly before her
employment was terminated. Werner Decl. ¶ 8; DSMF ¶ 70. Werner had made the same request
of DuVall, who provided him with the disciplinary actions, evidence of Plaintiff’s absence and
tardiness, and written co-worker complaints. Werner Decl. at ¶ 5; DuVall Decl. ¶ 14; DSMF ¶ 71.
After reviewing the evidence that both parties provided, Werner determined that Plaintiff’s
complaints were unfounded. Werner Decl. at ¶ 9; DSMF ¶ 72.
After Plaintiff’s first meeting with Werner, but while the investigation into Plaintiff’s
complaints was still ongoing, on February 20 and 21, 2013, Bass submitted written complaints to
DuVall regarding Plaintiff’s recent “harassing” and “threatening” behavior. See Bass Complaints,
Defendants’ Ex. 14; Bass Decl. ¶12; DuVall Decl. ¶11. Bass complained that Plaintiff came into
her office and confronted her in an aggressive manner. See id.; DSMF ¶ 49. Plaintiff contends that
this incident arose because Plaintiff was advised by Werner to speak directly to her supervisor,
Bass, to advise her of what Plaintiff believed was going wrong and how it was affecting the
laboratory. Plaintiff contends that she simply told Bass what Bass was doing wrong. PCSMF ¶ 49.
Nevertheless it is undisputed that Bass found Plaintiff’s comments and manner aggressive and
DuVall then launched an investigation, including speaking to the other lab techs who
witnessed the event. Three of the lab techs stated that they heard Plaintiff shouting at Bass. See
Investigation Notes, Defendants’ Ex. 15; DuVall Decl. ¶¶ 11-12; DSMF ¶ 50. 2 Other lab techs told
DuVall that Plaintiff took several breaks on a day when she announced she was going to Human
Resources, that she often left the lab without explanation and that she complained about her
supervisors and her shift. See Investigation Notes, Defendants’ Ex. 15; DuVall Decl. ¶ 12; DSMF
¶ 51. 3 DuVall issued Plaintiff a written warning for another policy violation, this time for
“unacceptable behavior towards superior.” See Disciplinary Action Notice dated 3/25/13,
Defendants’ Ex. 5; DuVall Decl. ¶12; DSMF ¶ 52. Plaintiff contests that her behavior was
inappropriate or unacceptable. The warning came with a one-day suspension and noted that
Plaintiff told Bass that “she needed a backbone,” and that Bass was letting the “lab director
[DuVall] dictate what to do.” See Disciplinary Action Notice dated 3/25/13, Defendants’ Ex. 5;
DSMF ¶ 53.
One of the lab techs who witnessed Plaintiff’s Feb. 21, 2013 exchange with Bass, Claire
Burns, went to Analore to complain. See Feb. 21, 2013 Email, Defendants’ Ex. 16; Analore Decl.
¶14; DSMF ¶ 56. 4 Burns stated that Plaintiff caused “tension” in the lab and noted a specific
incident in which Plaintiff tried to make the other lab techs “look bad” in an effort to excuse her
own behavior. See Feb. 21, 2013 Email, Defendants’ Ex. 16; Analore Decl. ¶14. Burns complained
that Plaintiff would “frequently” go into Bass’ office, close the door and then shout so loudly that
Plaintiff disputes this and other material facts on the grounds that the statements of other lab
techs are inadmissible hearsay. “[T]he rule in this circuit is that hearsay statements can be
considered on a motion for summary judgment if they are capable of being admissible at trial. In
ruling on a motion for summary judgment, the court need only determine if the nonmoving party
can produce admissible evidence regarding a disputed issue of material fact at trial. The
proponent need only ‘explain the admissible form that is anticipated.’” Fraternal Order of
Police, Lodge 1 v. City of Camden, 842 F.3d 231, 238–39 (3d Cir. 2016) (quotations omitted)
(emphasis in original). Here Defendants have identified the key witness tech, Claire Burns, and
provided her deposition. Defendant’s Exhibit 30. No question has been raised as to unavailability
See note 2, supra.
See note 2, supra.
the lab techs could hear her through the door. See id.; DSMF ¶ 57. 5 Analore reported the lab tech’s
concerns to Werner in HR. See Feb. 21, 2013 Email, Ex. 16; Analore Decl. ¶15; DSMF ¶ 58. 6
Shortly after the February 21 incident with Bass, Plaintiff had requested and was approved
for FMLA leave, and she did not return to work for more than a month. Bass Decl. ¶13; DuVall
Decl. ¶13; DSMF ¶ 54. Although the record is somewhat unclear on this point, due to the fact that
Plaintiff was scheduled to work on some weekends such that it is uncertain whether a weekend
day was not taken as FMLA leave because it was worked or because no work was required, it is
undisputed that Plaintiff worked the weekend of February 23-24, went out on leave on or around
February 26, 2013, and returned to work on or by March 25 or 26, 2013. Plaintiff’s Ex. 14.
At a follow-up, in-person meeting with Plaintiff on March 18, 2013 — during the period
while Plaintiff was on FMLA leave — where Werner planned to discuss the results of his
investigation into Plaintiff’s February complaint, Plaintiff gave him three emails between Analore,
Bass and DuVall from January and February 2013, regarding guidance requested by Bass from
HR and Analore on how to code Plaintiff’s FMLA and non-FMLA absences and her disciplinary
See note 2, supra.
Marrin also filed a complaint with the Department of Labor in late February 2013, in which she
alleged Capital Health was interfering with and retaliating against her because of her FMLA
leave. See Werner Dec. ¶ 10; DOL File, Defendants’ Ex. 23; DSMF ¶ 73. Werner complied with
the DOL investigator’s request for details regarding Marrin’s absences and how they were coded,
either as FMLA leave, personal leave, or some other type of leave. Werner Dec. ¶ 11; DSMF ¶
74. The DOL investigator reviewed a number of documents provided to him by Marrin, as well
as FMLA documentation sent by Capital Health in response to the investigation. See DOL File,
Defendants’ Ex. 23; Werner Dec. ¶ 12; DSMF ¶ 75. Upon completion of its investigation, the
DOL determined that Capital Health had not violated the FMLA. See Defendants’ Ex. 23 at
DEFS-DOL-000001-2, DOL Complaint Resolution; DSMF ¶ 76. In her Opposition and Cross
Motion Plaintiff asks the Court not to take judicial notice of the findings of the Department of
Labor’s investigation on the grounds that they were reached without the benefit of a full
adversary process. For the purpose of the present cross motions for summary judgment, however,
the Court need not, and does not consider the reliability of the Department’s findings, only
noting that the investigation occurred and Mr. Werner, the decision maker responsible for
Plaintiff’s termination was aware of the investigation.
issues. See Confidential Emails, Defendants’ Ex. 24; Marrin Dep. 187:3-18, 287:2-288:10; Tr. of
Nov. 17, 2015 Dep. of Richard Werner (“Werner Dep.”) at 6:1-7:12; Werner Decl. ¶13; DSMF ¶
Plaintiff claimed to Werner that the emails demonstrated that Analore, DuVall and Bass
were issuing trumped-up discipline as a means to have her fired. Marrin Dep. 288:11-289:12;
DSMF ¶ 78. When Werner realized that Plaintiff was not copied on any of the emails, he asked
her how she obtained them. Confidential Email File, Defendants’ Ex. 24; Werner Decl. ¶14; DSMF
¶ 79. Plaintiff would not identify the person who allegedly gave them to her and stated that they
were given to her anonymously. Marrin Dep. 288:7-10l; Werner Dep. 6:1-7:22; Werner Decl. ¶14;
DSMF ¶ 80. Werner then informed DuVall and Bass that Plaintiff had somehow obtained their
confidential emails, and asked how that could have occurred. Werner Dep. 9:16-19; Werner Decl.
¶ 15; DSMF ¶ 81. Bass had reported to Werner that she suspected Plaintiff herself had gone into
Bass’ office when she wasn’t there, opened her filing cabinet drawer and then removed
confidential documents and emails from a manila folder that was labeled “Carolann.” Bass Decl.
at ¶ 15; DSMF ¶ 82. Bass said she noticed the confidential documents and emails missing when
she found her jury form, which had been in the Carolann folder, lying near the rack where Plaintiff
stored snacks and personal items in a small storage room just off the microbiology lab. Bass Decl.
¶ 17; DSMF ¶ 83. Upon finding her jury form, Bass walked back to her office to put it in the
“Carolann” folder, and discovered the documents missing from her filing cabinet. Bass Decl. ¶ 18;
DSMF ¶ 84. Bass had kept several items in the folder relating to her personal matters, as well as
emails and memos regarding the microbiology lab techs. Bass Decl. ¶ 18; DSMF ¶ 85. Many of
the documents in the folder were missing, including some relating to other lab techs. Bass Decl. ¶
19; DSMF ¶ 86. Bass knew that Plaintiff had seen her put personal documents in the confidential
“Carolann” folder, because Plaintiff was in Bass’ office talking to her while watching Bass place
documents in the folder and then put the folder back in the filing cabinet, on Friday, February 22,
2013, the day before Plaintiff was scheduled to work the weekend. Bass Decl. ¶ 20; DSMF ¶ 87.
Plaintiff denies that she saw Bass place documents in the folder. PCSMF ¶ 87.
Another internal investigation, this time related to Plaintiff being in possession of the
confidential e-mails, was launched, and Bass, after consultation with Werner, interviewed the lab
techs who worked the weekend of February 23-24, 2013, when it was suspected the confidential
documents disappeared. Bass Decl. ¶ 21; Werner Decl. ¶ 16; DSMF ¶ 88. One tech reported that
she saw Marrin go into Bass’ office during the weekend shift, but she did not remember seeing
Marrin with papers. See Bass Emails re: Confidential Investigation, Defendants’ Ex. 26; DSMF ¶
89. This investigation progressed largely during the period in March where Plaintiff was out of the
office on approved FMLA leave.
Plaintiff returned from her FMLA leave on March 25 or 26, 2013. Plaintiff’s disciplinary
meeting regarding the February 20-21 incidents with Bass took place on March 26, 2013. Plaintiff
refused to sign the disciplinary notice after she was informed that she would be suspended effective
March 27, 2013, with a return to work date of March 28, 2013. Bass Decl. ¶13; see also Marrin
Dep. 171:2-11; DSMF ¶ 55.
Capital Health employees received their performance reviews in March 2013, and Plaintiff
received hers shortly after returning from FMLA leave. Marrin Dep. 221:12-20; see also 2012
Performance Review, Defendants’ Ex. 17; DSMF ¶ 59; PCSMF ¶ 59. Although Plaintiff received
several positive comments from Bass and was rated an “Improving Contributor” in several areas
by DuVall, Plaintiff’s overall rating was poor. See 2012 Performance Review, Defendants’ Ex. 17;
DSMF ¶ 60. Plaintiff was upset upon getting her performance review to learn that DuVall had
participated in her 2012 review; Plaintiff felt that DuVall should not comment on the period of
Plaintiff’s employment before DuVall was hired by Capital Health in November or December
2012. PCSMF ¶ 60; Marrin Dep. 209:2-24; DSMF ¶ 61.
Because Plaintiff was on leave from late February through late March, she was not
interviewed as part of Werner’s internal investigation into the missing confidential documents until
March 28, 2013. DuVall Decl. ¶16; DSMF ¶ 90. During that interview, Plaintiff admitted she
would often enter and sit in Bass’ office to drink her coffee. She also said she could not remember
seeing anyone else go into Bass’ office on the weekend of February 23-24. See DuVall Notes re
Confidential Investigation, Defendants’ Ex. 27; DSMF ¶ 91. Plaintiff continued to maintain either
that she did not know who gave her the emails, or that she received them “anonymously from a
friend.” Marrin Dep. 288:7-10; DSMF ¶ 92.
On or around April 3, 2013, 7 Plaintiff was called in by DuVall for a follow up interview.
By this point in time, the remainder of the internal investigation, including documenting Bass’
account and interviewing the other lab techs who had worked the weekend of February 23-24 was
complete, and Defendants sought to question Plaintiff again concerning how she obtained the
documents and what if any other confidential emails or documents she had obtained. DuVall Dep.
Tr. 49:1-8. Plaintiff claimed that she had already answered Defendants’ questions and refused to
answer any further questions. Marrin Dep. Tr. 297:10-16 (Q: “In a follow-up meeting – I’m on the
second paragraph under details of incident – Janice was asked how these documents were
presented to her and she refused to answer. Why didn’t you answer?” A: “I already was quested
about these and I told them I knew everything – I told them everything I knew about them.”).
The exact date of the follow-up interview is not found in the testimonial record. Plaintiff’s
termination notice states that the date of the incident in which Plaintiff refused to cooperate with
the internal investigation was April 3, 2013, and no other evidence in the record conflicts with
this account. The deposition testimony of Plaintiff, Werner, and DuVall, supports that the
meeting occurred sometime between the March 28, 2013 meeting and Plaintiff’s April 4, 2013
On April 3 or 4, 2013, after Werner had compiled all of the evidence from the internal
interviews, reviewed the statements and consulted with outside counsel regarding the facts, he
made the determination that Plaintiff’s employment should be terminated for failure to cooperate
in an internal investigation, as Capital Health believed that Plaintiff herself had broken into Bass’
filing cabinet while alone in Bass’ office and removed the emails and other confidential documents
concerning other lab techs from Bass’ cabinet, and then refused to answer Defendants’ questions
about the incident when asked about it during the follow-up interview. Werner Decl. ¶17; DSMF
Werner then informed Marrin’s supervisors that, given the circumstances regarding the
missing confidential documents, Capital Health had decided to move forward with the termination.
Werner Decl. ¶ 19; Bass Decl. ¶ 24; DuVall Decl. ¶ 17; DSMF ¶ 95. On April 4, 2013, DuVall and
Bass met with Marrin to provide her with a disciplinary action for “failure to cooperate during an
ongoing investigation,” and to inform her that Capital Health was terminating her employment.
See Disciplinary and Termination Notice dated April 4, 2013, Defendants’ Ex. 5; DSMF ¶ 96.
This case was initially filed in the Superior Court of New Jersey, Law Division, Civil Part,
Mercer County, and was removed to this Court on April 22, 2014. Plaintiff filed the twelve-count
First Amended Complaint in this action on May 18, 2014. Defendants moved to dismiss nine of
the counts in the First Amended Complaint on June 2, 2014. In an Opinion and Order dated January
29, 2015, the Court granted Defendants’ motion as to eight counts and granted Plaintiff leave to
amend as to one count. Plaintiff filed a Second Amended Complaint conforming the pleadings to
the Court’s Opinion on February 6, 2015. On October 10, 2016, Defendants moved for summary
judgment on all counts of the Second Amended Complaint. Plaintiff opposed and cross moved for
summary judgment on November 7, 2016. The parties’ cross motions are now before the Court.
After this Court’s Opinion and Order partially granting Defendants’ motion to dismiss the
Second Amended Complaint, four counts remain in this case. In Count I, Plaintiff brings a claim
under the Conscientious Employee Protection Act (“CEPA”). 8 In Count II, Plaintiff brings a
claim under the Family Medical Leave Act (“FMLA”) under both interference and retaliation
theories. Specifically, Plaintiff alleges:
By terminating the Plaintiff from her employment after having been approved for
intermittent leave to care for a serious health condition, Defendants violated the provision
of the Family Medical Leave Act by interfering with Plaintiff’s leave and retaliating
against the Plaintiff for seeking her leave.
Defendants deliberately created intolerable working conditions, interfered with the
Plaintiff’s leave and terminated the Plaintiff under the guise of their progressive
Defendants retaliated against the Plaintiff for seeking benefits in accordance with the
Family Medical Leave Act.
Complaint, Count II, ¶¶ 4-7.
In Count V, Plaintiff brings a claim under the New Jersey Law Against Discrimination
(NJLAD) under a retaliation theory. Specifically, Plaintiff alleges:
Plaintiff’s disability was a determinative factor in the Defendants [sic] decision to
intentionally provide the Plaintiff with unwarranted progressive discipline to justify her
The Second Amended Complaint erroneously purports to bring an action under the
“Consciousness Employee Protection Act,” but the Court construes Plaintiff’s allegations as
stating a CEPA claim.
Here, Plaintiff’s Complaint is poorly drafted. The title of Count V, “LAW AGAINST
DISCRIMINATION – RETALIATION,” makes clear that Plaintiff intends to pursue a
retaliation theory under the NJLAD, but the supporting allegations in the paragraphs that follow
appear to state only a non-retaliation disability discrimination claim. As explained, infra,
Plaintiff’s Opposition and Cross Motion make clear that Plaintiff is proceeding under a
retaliation theory only, despite the general disability discrimination language in Count V. Given
the advanced age of this case, and the fact that the parties have had the opportunity to fully brief
the retaliation issue as argued, if not actually pled, by Plaintiff, this Court will not belabor the
issue by requiring an Amendment of Count V. As further explained below, the issue of amending
Count V to conform to the motion briefing is mooted because (i) Defendants have moved for
Complaint, Count V, ¶ 3.
In Count VI, Plaintiff brings an NJLAD claim under a discrimination theory for failure to
accommodate. Specifically, Plaintiff alleges,
Defendants did not properly engage with the Plaintiff in the ‘interactive process’ required
by law; failed to ‘reasonably accommodate’ Plaintiff as is required by the New Jersey
Law Against Discrimination; and otherwise discriminated against the Plaintiff on account
of her disability and or handicap.
Rather than provide the Plaintiff a reasonable accommodation, the Defendants terminated
the Plaintiff under the guise of progressive discipline in accordance with their employee
Complaint, Count VI, ¶¶ 3-4. Looking to the pleadings in this case, therefore, there are five
theories of liability presented by the four surviving counts: CEPA (Count I); FMLA Interference
and FMLA Retaliation (Count II); NJLAD Retaliation (Count V); and NJLAD Discrimination by
Failure to Accommodate (Count VI). Defendants move for summary judgment on all four
counts, and, additionally, move for judgment on Counts V and VI in the event they were
intended to state an NJLAD disparate treatment disability discrimination claim. Because,
although the Complaint is ambiguously worded, Plaintiff’s Opposition and Cross Motion make
clear that the nature of Plaintiff’s NJLAD “discrimination” claim sounds in retaliation, not
disparate treatment, and Plaintiff has declined to introduce any evidence of disparate treatment
into the record on summary judgment, the Court grants Defendants’ motion for summary
judgment on Plaintiffs’ Count V NJLAD disparate treatment discrimination claim as unopposed.
Finally, Defendants move for judgment on all individual liability claims against Joan DuVall and
Carolann Bass (the “Individual Defendants”).
summary judgment on Count V in the event it intended to state a general, disparate treatment,
disability discrimination claim, and Plaintiff failed to oppose under that reading, choosing
instead to focus on the retaliation arguments only; and (ii) the Court finds summary judgment in
favor of Defendants appropriate on all bases.
Plaintiff cross moves for summary judgment on three counts: (1) Count VI, NJLAD
failure to accommodate claim (Plaintiff’s Opposition Brief (“Opp.”), Point I) 10; (2) Count V,
NJLAD retaliation claim (Opp. Points II, 11 III, VIII); and (3) Count II, FMLA retaliation claim
(Opp. Point IV, VI, 12 VII) and Count II, FMLA interference claim (Opp. Point V). Plaintiff also
opposes summary judgment on all claims against the Individual Defendants. Finally, in response
to Defendants’ motion, Plaintiff withdraws her Count I, CEPA claim, which the Court hereby
dismisses with prejudice. In their Reply, Defendants contend that Plaintiff’s sudden waiver of
her CEPA claim after the close of discovery and the completion of the initial briefing on
summary judgment warrants an award of attorneys’ fees. The parties subsequently fully briefed
the question of whether an award of attorneys’ fees would be appropriate in a separate motion on
which the Court will reserve decision.
Plaintiff’s Opposition and Cross Motion for Summary Judgment does not symmetrically
oppose Defendants’ arguments from their moving brief, and instead presents eleven “Points,”
which the Court has reorganized to correspond to the following coherent arguments.
In Point II, Plaintiff purports to move for summary judgment on Count VI under an NJLAD
disability discrimination theory, but in fact makes only arguments relevant to Plaintiff’s Count
V, NJLAD retaliation claim. Point II(A) is an affirmative argument for summary judgment for
NJLAD retaliation and Point II(B) is an argument attempting to rebut Defendants’ claim in their
motion seeking judgment on Count V that Defendants terminated Plaintiff for a legitimate
business reason — in other words attempting to establish that Defendants’ stated reason was
merely a pretext for impermissible retaliation. Despite purporting to concern “discrimination”
under Count VI, Point II does not provide any non-retaliation based disability discrimination
In Point VI, Plaintiff discusses the two analytical frameworks established by the courts for
evaluating FMLA retaliation claims: mixed motive (Point VI(A)) and pretext (Point VI(B)).
Plaintiff mistakes these for independent causes of action for “discrimination” under the FMLA in
Count II. As explained, below, however, “mixed motive” and “pretext” refer to burden-shifting
frameworks which courts apply to evaluate FMLA retaliation claims on summary judgment.
They are not, as Plaintiff suggests, independent causes of action for which Plaintiff may establish
a prima facie case. The Court, accordingly, will construe the coherent parts of Point VI as
arguments in further support of Plaintiff’s Count II FMLA retaliation claim.
In the present opinion, the Court will address A) the parties’ cross motions for summary
judgment on Count II, FMLA Interference and FMLA Retaliation; B) the parties’ cross motions
for summary judgment on Count V, NJLAD Retaliation; C) the parties’ cross motions for
summary judgment on Count VI, NJLAD Discrimination by Failure to Accommodate; and D)
Defendants’ motion for summary judgment on all liability claims against the Individual
A. Count II, FMLA
“Two types of claims can arise under the FMLA, retaliation (29 U.S.C. § 2615(a)(2)) and
interference (29 U.S.C. § 2615(a)(1)).” Fraternal Order of Police, Lodge 1 v. City of Camden,
842 F.3d 231, 245 (3d Cir. 2016). Plaintiff raises claims under both provisions of the statute.
1. FMLA Interference Claim
To make a claim of interference under the FMLA, a plaintiff must establish:
(1) he or she was an eligible employee under the FMLA; (2) the defendant was an
employer subject to the FMLA's requirements; (3) the plaintiff was entitled to FMLA
leave; (4) the plaintiff gave notice to the defendant of his or her intention to take FMLA
leave; and (5) the plaintiff was denied benefits to which he or she was entitled under the
Capps v. Mondelez Glob., LLC, 847 F.3d 144, 155 (3d Cir. 2017) (quoting Ross, 755 F.3d at
191–92 (citation omitted)). In other words, “[t]o assert an interference claim, ‘the employee only
needs to show that he was entitled to benefits under the FMLA and that he was denied them.”
Callison v. City of Phila., 430 F.3d 117, 119 (3d Cir. 2005) (citing 29 U.S.C. §§ 2612(a),
2614(a)). “Under this theory, the employee need not show that he was treated differently than
others[, and] the employer cannot justify its actions by establishing a legitimate business purpose
for its decision.” Id. at 119-120. “An interference action is not about discrimination, it is only
about whether the employer provided the employee with the entitlements guaranteed by the
FMLA.” Id. at 120. “Because the FMLA is not about discrimination, a McDonnell-Douglas
burden-shifting analysis is not required.” Sommer v. The Vanguard Grp., 461 F.3d 397, 399 (3d
Defendants move for summary judgment on the ground that Plaintiff has failed to
establish the fifth element of a prima facie case for FLMA interference, that Plaintiff was
actually denied a benefit to which she was entitled under the statute. This Court agrees. The
Third Circuit Court of Appeals has “made it plain that, for an interference claim to be viable, the
plaintiff must show that FMLA benefits were actually withheld.” Capps, 847 F.3d at 156
(quoting Ross, 755 F.3d at 192). In her deposition, Plaintiff testified that she had never been
denied a requested FMLA leave, and that Defendants had fully complied with all work
restrictions imposed by Plaintiff’s doctors upon her return from FMLA leave. Marrin Dep. Tr.
67:14-16 (Q: “Okay. All right. And were your requests to take intermittent FMLA leave
granted?” A: “Yes.”); Marrin Dep. Tr. 70:14-72:3 (Capital Health complied with the restrictions
on lifting, sitting, and standing and limiting hours of work on all occasions when Plaintiff
returned from FMLA leave with such restrictions). The other undisputed evidence in the record
does not reflect that Plaintiff was ever denied any benefit guaranteed under the FMLA. Plaintiff
cannot, as a matter of law, assert a claim for FMLA interference in the absence of such a denial.
In her Opposition, Plaintiff makes three arguments in response. First, Plaintiff argues that
she should not have been disciplined for failure to comply with the call-out sick procedure due to
her ignorance of the lab policy and her previous course of dealing with the lab’s former
supervisor. This argument is irrelevant to the existence of a denial of FMLA benefits and is not
responsive to Defendants’ motion.
Second, Plaintiff argues that by failing to provide Plaintiff with Carolann Bass’ cell
phone number or Joan DuVall’s cell phone number as an alternative method of calling in sick to
speaking with the tech-in-charge or lab supervisor, Defendants deprived Plaintiff of the right to
use her FMLA because she would not be able to call in sick if there were not a tech-in-charge or
supervisor available. Again, this argument is irrelevant to the existence of a denial of FMLA
benefits and not responsive to Defendants’ motion because Plaintiff admitted that she was never
denied any FMLA benefits. Marrin Dep. Tr. 67:14-16. Specifically, concerning the call-out
policy, Plaintiff also testified at her deposition that there was never a time in which she was
unable to request FMLA leave due to an inability to speak to a tech-in-charge or supervisor.
Marrin Dep. Tr. 147:23-148:9. Even taking Plaintiff’s allegations of a potential inability to callout as true, therefore, Plaintiff nevertheless fails to state a prima facie case for FMLA
interference because no actual denial of benefits ever resulted. Callison, 430 F.3d at 119 (“the
employee . . . needs to show that he was entitled to benefits under the FMLA and that he was
denied them.”) (quotation omitted) (emphasis added).
Third and finally, Plaintiff argues that one of the confidential emails Plaintiff obtained
stated that if sick leave was used for a period of less than four days, it could not be documented
as FMLA. Plaintiff argues that this email reflects one of Defendants’ office policies that
impermissibly could have restricted Plaintiff’s ability to use her approved intermittent FMLA
leave. As an initial matter, Plaintiff simply misquotes the confidential email in question. Plaintiff
was out of the office for the first two full work weeks of February, from 2/4-2/8 and from 2/122/15. Plaintiff’s Ex. 14. It is undisputed that employees approved for intermittent FMLA,
including Plaintiff, had the authority to determine whether their out of office time would be
categorized as FMLA or PTO. Plaintiff testified in her deposition that it was her customary
practice to inform her supervisor, Carolann Bass, how Plaintiff would like her out of office time
to be categorized upon Plaintiff’s return to the office after each leave. Marrin Dep. Tr. 289:13290:1. On Monday, February 18, Plaintiff’s first day back in the lab after her two week leave,
Carolann Bass wrote an email to Analore and DuVall stating:
Janice came to work today with a note that indicates she was out due to an exacerbation
of her anxiety related to stress at work 2/12 to 2/15. Janice stated that she did not want
the last 2 weeks going toward her FLMA. I’m not sure what we do about this.
A couple of hours later, Ms. DuVall responded, inter alia, that:
We met with Rick Werner-he said anytime an employee is off for more than 3 days
straight it most likely needs to be FMLA so we will leave the 2/4-2/8 as FMLA.
With regards to her absence from last week-he is calling an attorney tomorrow and will
get back to us. Most likely the attorney will say we have to use FMLA . . .
P. Ex. 14. Ms. DuVall’s email clearly states that Mr. Werner advised that leaves of more than
three days straight most likely must be categorized as FMLA, not, as Plaintiff contends, that
leaves of fewer than four days may not be categorized as FMLA. 13 More importantly, as was the
case with Plaintiff’s two other arguments, Plaintiff’s third argument is phrased purely in the
hypothetical. See, e.g., Opp., 34 (“If the Plaintiff had to call in sick for one, two, or three days as
a result of her fibromyalgia she would . . .”) . Plaintiff does not contend that she in fact was ever
prevented from categorizing leaves of one, two, or three days as FMLA. Again, therefore,
Plaintiff has failed to show that she suffered a denial of FMLA benefits, as required to make a
prima facie interference claim.
Mr. Werner confirmed during his deposition that it was his understanding that the FMLA
required leaves of more than four days to be categorized as FMLA leave. Werner Dep. Tr. 8:1519 (“For more than three days straight is because, as I understand FMLA, that if it’s greater than
three days and requires continued treatment, that it’s covered by the FMLA so the employee – it
wouldn’t count against the employee.”). This potential requirement, which Plaintiff does not
dispute, does not purport to affect how leaves of fewer than four days are categorized.
2. FMLA Retaliation Claim
The Third Circuit has observed that “[t]o prevail on a retaliation claim under the FMLA,
the plaintiff must prove that (1) she invoked her right to FMLA-qualifying leave, (2) she suffered
an adverse employment decision, and (3) the adverse action was causally related to her
invocation of rights.” Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 301–02 (3d
Cir. 2012). Plaintiffs in retaliation cases under the FMLA may set forth a prima facie case using
either direct or circumstantial evidence. The type of evidence upon which a plaintiff relies
determines the legal standard which courts apply on a summary judgment motion. “Because
FMLA retaliation claims require proof of the employer’s retaliatory intent, courts have assessed
these claims through the lens of employment discrimination law. Accordingly, claims based on
circumstantial evidence have been assessed under the burden-shifting framework established in
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), while claims based on direct evidence
have been assessed under the mixed-motive framework set forth in Price Waterhouse v. Hopkins,
490 U.S. 228, 276–77 (1989) (O'Connor, J., concurring).” Lichtenstein, 691 F.3d at 301–02.
When an FMLA plaintiff attempts to prove discrimination or retaliation by circumstantial
evidence the court employs the burden-shifting analysis established in McDonnell Douglas. The
Third Circuit has explained this burden shifting framework as follows:
A plaintiff must first produce evidence sufficient to convince a reasonable factfinder as to
all of the elements of a prima facie case of discrimination. If a plaintiff establishes a
prima facie case, “‘[t]he burden of production (but not the burden of persuasion) shifts to
the defendant, who must then offer evidence that is sufficient, if believed, to support a
finding that the defendant had a legitimate, nondiscriminatory reason for the [adverse
employment decision].’” An employer need not prove, however, that the proffered
reasons actually motivated the [employment] decision. If a defendant satisfies this
burden, a plaintiff may then survive summary judgment by submitting evidence 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.
Kautz v. Met-Pro Corp., 412 F.3d 463, 465 (3d Cir. 2005) (quoting Stanziale v. Jargowsky, 200
F.3d 101, 105 (3d Cir. 2000)).
When an FMLA plaintiff attempts to prove discrimination or retaliation by direct
evidence 14 the Court applies the Price Waterhouse framework. There, the plaintiff must first
present “‘direct evidence’ that his [FMLA leave] was a substantial factor in the decision to fire
him.” Conoshenti v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 147 (3d Cir. 2004) (quoting
Fakete v. Aetna, Inc., 308 F.3d 335, 338 (3d Cir. 2002)). “‘[T]he burden of persuasion on the
issue of causation [then] shifts, and the employer must prove that it would have fired the plaintiff
even if it had not considered [the FMLA leave].’” Conoshenti, 364 F.3d at 147 (quoting Fakete,
308 F.3d at 338).10 In Price Waterhouse, Justice O’Connor explained that this burden requires
To convince the trier of fact that it is more likely than not that the decision would have
been the same absent consideration of the illegitimate factor. The employer need not
isolate the sole cause for the decision; rather it must demonstrate that with the illegitimate
factor removed from the calculus, sufficient business reasons would have induced it to
take the same employment action. This evidentiary scheme essentially requires the
employer to place the employee in the same position he or she would have occupied
Price Waterhouse, 490 U.S. at 276–77.
a) Prima Facie Case
Here, Defendants contend that Plaintiff has failed to set forth a prima facie case for
FMLA retaliation because Plaintiff has not shown the third element of causation. Plaintiff, in her
Opposition and Cross Motion, attempts to show causation on the basis of circumstantial evidence
in the form of the timing of her termination and an alleged pattern of antagonism against Plaintiff
“‘Direct evidence’ means evidence sufficient to allow the jury to find that ‘the decision makers
placed substantial negative reliance on [the protected activity] in reaching their decision’ to fire
him.” Conoshenti, 364 F.3d at 148 n. 10 (quoting Fakete, 308 F.3d at 338–39).
by her supervisors Bass and DuVall. 15 Reviewing the circumstantial evidence in the record on
summary judgment, the Court finds that Plaintiff has established a prima facie case of retaliation
under the FMLA on the basis of the timing of her termination.
As a threshold matter, the parties do not dispute that Plaintiff has satisfied the first two
elements of a prima facie case of retaliation. Plaintiff engaged in a protected activity when she
took leave under the FMLA from February 26 through March 25 or 26, 2013, and when she
complained to Human Resources on March 18, 2013, about her supervisors’ perceived
interference with her enjoyment of rights under FMLA. And Plaintiff suffered an adverse
employment action when she was terminated on April 4, 2013.
To demonstrate a prima facie case of causation, Plaintiff must “point to evidence
sufficient to create an inference that a causative link exists” between her engagement in protected
activity and her termination. Lichtenstein, 691 F.3d at 307 (citing Farrell v. Planters Lifesavers
Co., 206 F.3d 271, 279–81 (3d Cir. 2000)). Whether a causal link exists between the protected
activities and Plaintiff’s termination “must be considered with a careful eye to the specific facts
and circumstances encountered.” Farrell, 206 F.3d at 279 n. 5. “To demonstrate a causal
connection, 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.’” Budhun v. Reading Hosp. & Med.
Plaintiff also argues, on the basis of Crewl v. Port Auth. of Allegheny Cty., 837 F. Supp. 2d
495 (W.D. Pa. 2011), an opinion of the Western District of Pennsylvania, which Plaintiff
incorrectly cites as controlling Third Circuit authority, that a consideration of the circumstantial
evidence in this case is not necessary because “Plaintiff's use of her FMLA leave was the
predicate basis for her discharge.” Id. at 506. That contention is simply not supported by any
facts in the record. Plaintiff was granted every FMLA leave she requested, and, unlike the facts
in Crewl, Defendants did not purport to terminate Plaintiff explicitly because of the use of her
FMLA leave. Crewl and the other authorities Plaintiff cites on these points are simply inapposite.
Ctr., 765 F.3d 245, 258 (3d Cir. 2014) (quoting Lauren W. ex rel. Jean W. v. DeFlaminis, 480
F.3d 259, 267 (3d Cir. 2007)).
Although the Third Circuit has been “reluctant to infer a causal connection based on
temporal proximity alone,” the standard for “unusually suggestive” temporal proximity at the
prima facie stage is not a high one. Budhun, 765 F.3d at 258 (citing Weston v. Pennsylvania, 251
F.3d 420, 431 (3d Cir. 2001)). The Third Circuit has identified the following examples as
constituting sufficiently close temporal proximity to qualify as unusually suggestive timing:
deciding to replace the plaintiff during the plaintiff’s FMLA leave and informing the plaintiff
that she had been replaced two days after her FMLA leave ended; terminating the plaintiff less
than a week after the plaintiff invoked her right to FMLA leave; terminating the plaintiff several
days after the plaintiff took FMLA leave; and terminating the plaintiff three months after
requesting FMLA leave and the day she was scheduled to return to work. Id. at 258.
Here, Plaintiff met with Mr. Werner on March 18, 2013, at which time she provided him
with the three confidential e-mails, followed by the internal investigation into Plaintiff’s
possession of those emails, which ultimately led to Plaintiff’s firing. Defendants’ Ex. 24. At the
time of her meeting, Plaintiff was still out of work on approved FMLA leave, from which she did
not formally return until approximately March 26, 2013, at the latest. Plaintiff was terminated on
April 4, 2013, seventeen (17) calendar days after raising her complaint about her supervisors’
interfering with the reporting of her FMLA leave during her meeting with Mr. Werner, and nine
(9) calendar days after returning from FMLA leave. Courts in the Third Circuit routinely find
periods of such duration to satisfy the standard of unusually suggestive temporal proximity at the
prima facie stage, and this Court does as well. 16 Accordingly, Plaintiff has met her initial burden
to show causation and has stated a prima facie case of FMLA retaliation. Because the Court finds
timing alone sufficient to set forth a prima facie case, the Court need not address Plaintiff’s
arguments that her supervisors exhibited a pattern of antagonism toward her.
b) Legitimate Business Reason
Moving to step two of the McDonnell Douglas framework, Defendants have shown a
legitimate, nondiscriminatory basis for Plaintiff’s termination. The stated reason for Plaintiff’s
termination in her official, April 4, 2013 termination notice is “failure to cooperate during an
ongoing investigation.” Defendant’s Ex. 5. The notice specifies that upon being informed on
March 28, 2013 of the investigation into how she obtained the confidential e-mails, Plaintiff
initially told Defendants that she had received them anonymously from a friend. Ibid. The notice
states that at a follow up meeting, Plaintiff “refused to answer” how these documents were
presented to her or what additional documents were provided. Ibid. 17
It is undisputed that Mr. Werner was the final decision maker for Defendant Capital
Health with the authority to terminate Plaintiff, and that Mr. Werner is the one who ultimately
See Lichtenstein v. UPMC, 691 F.3d 294, 307 (3d Cir. 2012) (7 days is unduly suggestive);
Shellenberger v. Summit Bancorp, Inc., 318 F.3d 183, 189 (3d Cir. 2003) (10 days is unduly
suggestive); Jalil v. Avdel Corp., 873 F.2d 701, 708 (3d Cir.1989) (finding two days unduly
suggestive); Capps v. Mondelez Global LLC, 147 F.Supp.3d 327, 337 (E.D. Pa. 2015) (a period
of 6 days was characterized “at the long end of” being unusually suggestive); Sowell v. Kelly
Services, Inc., 139 F.Supp.3d 684, 695 (E.D. Pa. 2015) (7 days is “within the realm of what
courts have found to be sufficient to establish a prima facie case”); but see Williams v. Phila.
Housing Auth. Police Dep't, 380 F.3d 751, 760 (3d Cir. 2004) (2 months is not unusually
The notice erroneously states that Plaintiff provided Werner with the confidential e-mails on
February 21, 2013. This is plainly impossible as the e-mails were not yet missing on February
22, 2013. Bass Decl. ¶ 20. This is clearly a typographical error, given Mr. Werner’s own notes,
in the record on summary judgment, stating that he received the e-mails from Plaintiff on March
decided to fire Plaintiff on April 4, 2013. Werner Decl. ¶ 17; Defendant’s Ex. 5. At his
deposition, Mr. Werner explained that “failure to cooperate with the ongoing internal
investigation” primarily referred to Plaintiff’s refusal to answer questions in the meetings
following her initial March 28 meeting with supervisors investigating the missing documents.
See, e.g., Werner Dep. Tr. 16:15-20 (“Janice refused to comply with – answer her questions
about where she received the information that she received, those e-mails. And based on that
information, went to outside counsel and reviewed it with that person and then terminated her
employment for that reason.”); Id. at 17:18-18:2 (Q: “But in those documents, wasn’t it that Ms.
Marrin stated that she didn’t know who put the e-mails into her area?” . . . A: “No. She – in my
meeting with her, she did not want to answer where she got them from. In Joanie’s
correspondence of the meeting she did not want to answer. She would not answer where they
came from.”); Id. at 18:20-19:19 (Q: “Is it your recollection that she didn’t tell Ms. Bass that she
didn’t know who put the e-mails in there, in her area to find?” A: “No. It was my recollection
that when she spoke to me in the meeting and with Joanie DuVall that she was not going to
divulge that information. She knew, but she was not going to divulge it.” Q: “Is that why she was
terminated?” A: “She was terminated for no – for failure to comply with the investigation that we
were doing.” Q: “And when you say ‘failure to comply with the investigation,’ do you mean – A:
“Cooperate.” Q: “Was that failure to tell who put the e-mails in her belongings?” A: “I think that
she did not cooperate with providing that information when Joanie asked her several questions
about where she got the information.”).
In his sworn declaration, Mr. Werner further explained that he was particularly troubled
by Plaintiff’s failure to cooperate in light of the fact that the results of Defendants’ internal
investigation suggested that Plaintiff herself had broken into Ms. Bass’ filing cabinet while she
was alone in Ms. Bass’ office. Werner Decl. ¶ 17 (“In early April, after I had compiled all of the
evidence from the internal reviews, reviewed the statements, and consulted with outside counsel,
I made the determination that Ms. Marrin’s employment should be terminated for failure to
cooperate in the internal investigation. In fact, the investigation suggested that Ms. Marrin
herself had broken into Ms. Bass’ filing cabinet while alone in Ms. Bass’ office and had taken
the entire folder containing the emails and other confidential documents concerning other lab
techs.”). Reasonably, Defendants felt the need to question Plaintiff again about the manner in
which she obtained the documents, after Defendants’ internal investigation strongly suggested
that Plaintiff had taken the documents herself.
In further support of their reasoning, Defendants have introduced much of the evidence
from the internal investigation into the record on summary judgment. Plaintiff’s direct
supervisor, Bass, told Werner that on Friday, February 22, 2013, she had been speaking with
Plaintiff in Bass’ office, so that Plaintiff was looking at Bass as she placed personal files in the
Carolann folder. Bass Decl. ¶ 20. Additionally, Plaintiff had been in Bass’ office speaking with
or yelling at Bass the day before on February 21, 2013. Plaintiff worked the weekend of
February 23-24. When, as part of the internal investigation, Bass interviewed the other lab techs
working that weekend, they stated that they had seen Plaintiff enter Bass’ office alone during the
weekend of February 23-24. Bass Decl. ¶ 22. During the March 28 meeting, Plaintiff admitted to
Bass that she would go into Bass’ office alone to drink coffee, but denied taking the documents.
Bass Decl. ¶ 23. Plaintiff also admitted during the investigation that she had received the e-mails
sometime around the weekend in February that she had worked, and that she could not remember
having seen anyone else go into Bass’ office that weekend. Defendants’ Ex. 27. In short,
Defendants’ internal investigation had revealed evidence suggesting that Plaintiff had
foreknowledge of the location of the taken documents; the documents likely disappeared a day or
two after Plaintiff acquired this knowledge; Plaintiff had the opportunity to take the documents
during the period in which she was alone in Bass’ office, which coincided with the period in
which the documents are known to have disappeared; and no one else is known to have had the
opportunity to take the documents during this period.
Finally, in addition to Plaintiff’s conduct during interview sessions and the results of the
internal investigation, Mr. Werner stated at his deposition that his decision was influenced in part
by Plaintiff’s past disciplinary history. Werner Dep. Tr. 14:7-13 (Q: “Okay. And why is it that
you made the decision to terminate her?” A: “Because she went through the progressive
disciplinary process. She was at the last step in the process and her last actions, after we
reviewed it, I checked with counsel and made a decision to terminate her.”). Considering the
significant evidence shown, Defendants have clearly met their burden of setting forth a
legitimate business reason for Plaintiff’s termination.
c) Pretext Analysis
To show pretext at the third step of the McDonnell Douglas framework, “the plaintiff
must point to 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.” Burton v. Teleflex Inc., 707 F.3d 417, 427 (3d Cir. 2013) (internal quotation
marks omitted). When a plaintiff challenges the “credibility of the employer's proffered
justification,” he must produce evidence “demonstrat[ing] 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.” Id.
(internal quotation marks omitted). The Third Circuit has applied these principles “to require
plaintiffs to present evidence contradicting the core facts put forward by the employer as the
legitimate reason for its decision.” Kautz v. Met-Pro Corp., 412 F.3d 463, 468 (3d Cir. 2005).
The plaintiff “must show[ ] not merely that the employer's proffered reason was wrong, but that
it was so plainly wrong that it cannot have been the employer's real reason.” Keller v. Orix
Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir.1997) (en banc). “[P]retext is not shown by
evidence 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.’” Kautz, 412 F.3d 463, 467 (3d Cir. 2005) (quoting Fuentes v.
Perskie, 32 F.3d 759, 765 (3d Cir. 1994)).
Moreover, “to avoid summary judgment, the plaintiff’s evidence rebutting the employer's
proffered legitimate reasons must allow a factfinder reasonably to infer that each of the
employer’s proffered non-discriminatory reasons ... was either a post hoc fabrication or
otherwise did not actually motivate the employment action.” Fuentes, 32 F.3d at 764 (emphasis
in the original). Plaintiff may be excused from this requirement in certain cases because where
“defendant proffers a bagful of legitimate reasons,” casting “substantial doubt on a fair number
of them ... may impede the employer's credibility seriously enough so that a factfinder may
rationally disbelieve the remaining proffered reasons.” Id. at 764 n. 7. “Among the kinds of
evidence that a plaintiff can proffer are intervening antagonism or retaliatory animus,
inconsistencies in the employer's articulated reasons for terminating the employee, or any other
evidence in the record sufficient to support the inference of retaliatory animus.” LeBoon v.
Lancaster Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232–33 (3d Cir. 2007) See also Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986) ( “The mere
existence of a scintilla of evidence in support of the plaintiff's position will be insufficient; there
must be evidence on which the jury could reasonably find for the plaintiff.”).
With these principles in mind, the Court evaluates the circumstantial evidence offered by
Plaintiff in response to Defendant’s stated legitimate, nondiscriminatory basis for her firing.
i) Failure to Cooperate with the Investigation
Defendants have, from the time of Plaintiff’s firing in April of 2013 to the present,
consistently maintained that the proximate cause of Plaintiff’s firing was her failure to cooperate
with the internal investigation into the confidential documents that were taken from the filing
cabinet in Ms. Bass’ office in February 2013. In particular, Defendants contend that they found
Plaintiff had failed to cooperate during the follow up meeting with Ms. DuVall after her initial
March 28 meeting, when Plaintiff refused to answer Defendants’ questions about how she
obtained the three confidential e-mails that she had provided to Mr. Werner and what, if any,
other documents she had obtained as well. Defendant’s Ex. 5.
For her part, Plaintiff, in her deposition, does not deny that after the initial March 28
meeting, she no longer answered Defendants’ questions. Going into the follow-up meeting with
DuVall on or about April 3, for example, it was Plaintiff’s position that she had already answered
Defendants’ questions and that she could not, and would not, be subjected to answering them
again. Marrin Dep. Tr. 297:10-16 (Q: “In a follow-up meeting – I’m on the second paragraph
under details of incident – Janice was asked how these documents were presented to her and she
refused to answer. Why didn’t you answer?” A: “I already was quested about these and I told
them I knew everything – I told them everything I knew about them.”); Marrin Dep. Tr. 297:21291:1 (“I went into –was called into the office again. I knew I was being fired. The noose was
out around my neck and getting tighter by the minute. I said to them, I’m not – I cannot go
through this anymore. I told you everything I know.”); Marrin Dep. Tr. 298:7-13 (Q: “it says, she
refused to answer, you said – did you say you –“ A: “I already answered . . . that. I already
answered them the first time they called me in there about them.”). In short, although Plaintiff
provides an additional gloss on her motivation for declining to answer any additional questions
from Defendants, she does not dispute that she refused to provide answers to Defendants’
questions. In one telling exchange, Plaintiff explained her response to DuVall at the follow-up
Q: “Okay. So your response was you don’t know anything else, I’ve told you everything
that – that I know?” . . .
A: No, no, that’s not my response. My response is I cannot go through this anymore. I
don’t – I’m not going to sit here and I have been back to work a week and you have
called me in here and harassed me and I cannot take it anymore, and I have nothing more
to say. . . . I said I want – I do not – I cannot go through this anymore.”
Marrin Dep. Tr. 299:11-300:7. Nothing in Plaintiff’s discussion of her perspective on her
conduct at the follow up meetings undermines or reveals to be incoherent, inconsistent, or
contradictory, the Defendants’ explanation that they believed Plaintiff to be uncooperative.
In reaching my conclusion, I am bound by the Third Circuit’s recent adoption in Capps v.
Mondelez Glob., LLC, 847 F.3d 144, 155 (3d Cir. 2017), of the “honest belief rule” in FMLA
retaliation cases. In short, the honest belief rule, long the standard in other circuits, holds that in
FMLA cases “arguing about the accuracy of the employer’s assessment is a distraction because
the question is not whether the employer’s reasons for a decision are ‘right but whether the
employer’s description of its reasons is honest.’” Id. at 153 (quoting in parenthetical Gustovich v.
AT&T Communications, Inc., 972 F.2d 845, 848 (7th Cir. 1992)). Under the rule, the “‘critical
inquiry in discrimination cases like this one is not whether the employee actually engaged in the
conduct for which he was terminated, but whether the employer in good faith believed that the
employee was guilty of the conduct justifying discharge.’” Id. at 153 (quoting Pulczinski v.
Trinity Structural Towers, Inc., 691 F.3d 996, 1002 (8th Cir. 2012)). The Capps court ultimately
applied the honest belief rule to determine that, where the defendant’s internal investigation
concluded that plaintiff was dishonest, the plaintiff failed to show pretext where there was “a
lack of evidence that [defendant] did not honestly hold that belief.” Id. at 155. Applied to this
case, the holding of Capps requires Plaintiff to show not that the conclusions of her supervisors
in deciding to discipline her or even the conclusions of the internal investigation that she was not
cooperating and that she likely took the confidential documents at issue were mistaken. Rather,
Plaintiff must introduce evidence tending to show that Defendants did not honestly believe their
stated reasons for disciplining her or the results of the internal investigation.
Plaintiff does not even attempt to meet the Capps standard. A major underpinning of
Plaintiff’s explanation for her own conduct is her apparent belief that she had told the truth that
the documents had been provided to her anonymously, and therefore could not provide any
additional information in response to Defendants’ questions. Under the honest belief rule,
however, the truth of Plaintiff’s explanation does not impact the Court’s pretext analysis.
Defendants, for example, have introduced their own evidence suggesting that they had reason to
believe as the result of their investigation that Plaintiff in fact took the documents. Applying
Capps, Plaintiff cannot show that Defendants’ reason for firing her was pretextual by showing
that they were mistaken in disbelieving her and therefore asking more questions which she
refused to answer. Plaintiff must show that Defendants did not honestly believe she was refusing
to answer their questions and otherwise cooperate with the investigation, but were instead taking
action against her for some other discriminatory reason. In short, the truth of whether or not
Plaintiff took the confidential documents is not before this Court.
This Court’s analysis could, therefore, stop after its first inquiry: Defendants stated as
their legitimate business reason for terminating Plaintiff that she refused to cooperate with their
internal investigation by not answering their questions, and Plaintiff readily admits that she did
refuse to cooperate with the internal investigation after her first interview on the grounds that in
her opinion there was nothing more to say. Plaintiff does, however, make two additional
arguments attempting to rebut Defendants’ reason for termination.
Firstly, Plaintiff imports her NJLAD direct evidence of retaliation argument, which will
be discussed at length below, to the McDonnell Douglas third step analysis, contending that,
because the anonymous person who took the documents to give to Plaintiff, or Plaintiff herself in
taking the documents, was protected under NJLAD in his or her conduct, any attempt by
Defendants to force Plaintiff to disclose the identity of the anonymous person or admit to taking
the documents herself would be an illegitimate retaliatory act.
As a threshold matter, Plaintiff has provided no law that individuals engaging in conduct
protected by NJLAD are entitled under that statute to anonymity in their conduct. Nothing in the
Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010) decision cited by Plaintiff states that the
plaintiff in that case could refuse to acknowledge to her employer that she had in fact taken the
documents, or could not be terminated for such a refusal. Even presuming, however, that some
authority protected Plaintiff from disclosing the existence of her or an anonymous person’s
protected conduct to Defendants, this Court’s finding, as discussed infra, that the taking of the
confidential documents in this case was not protected under NJLAD, moots Plaintiff’s argument.
Clearly Plaintiff cannot contend that she had a protected right under any antidiscrimination
statute to willfully fail to disclose the existence of unprotected conduct to her employers.
The Progressive Disciplinary Process
Secondly, Plaintiff seizes upon the testimony of Mr. Werner, who stated at his deposition
that part of the reason for Plaintiff’s firing for not cooperating with the internal investigation was
that Plaintiff was already at the last step of the progressive discipline process due to her
disciplinary record. Plaintiff contends that her disciplinary record itself was assembled on
pretextual grounds due to the discriminatory motives of her immediate supervisor Bass and lab
director DuVall, who allegedly conspired to fabricate disciplinary infractions for which to punish
Plaintiff in retaliation for her use of FMLA leave. 18
As a threshold matter, Defendants contend that summary judgment on all issues related to
the progressive discipline process should be granted in their favor, because in opposition to
Defendants’ extensive documentary record, certifications, and deposition testimony, including
from Plaintiff’s coworkers not named in the suit, Plaintiff has offered only her own self-serving
certifications and deposition testimony. Defendants argue that Plaintiff is not entitled to defeat
summary judgment on her unsupported word alone. It is true that “[a]s a general proposition,
conclusory, self-serving affidavits are insufficient to withstand a motion for summary judgment.”
Gonzalez v. Sec'y of Dep't of Homeland Sec., 678 F.3d 254, 263 (3d Cir. 2012) (quotation
omitted). The Third Circuit, however, has held that “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 or judgment as a matter of law.” Cappuccio v. Prime
Capital Funding LLC, 649 F.3d 180, 189 (3d Cir. 2011), as amended (Sept. 29, 2011) (citing
At the outset, the Court must highlight the unusual nature of Plaintiff’s argument. Rather than
contending that Werner’s stated reason for terminating Plaintiff at the close of the internal
investigation into the missing confidential documents – failure to cooperate with the
investigation by refusing to answer questions – is pretextual, Plaintiff contends that Mr.
Werner’s potentially unbiased decision was based upon a sham progressive disciplinary record
that was assembled by Bass and particularly DuVall on pretextual grounds.
Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161–63 (3d Cir. 2009). “This
remains true even if the affidavit is ‘self-serving’ in the sense of supporting the affiant's own
legal claim or interests.” Id. at 189-90. The core inquiry for the court then on whether a
plaintiff’s certification and testimony alone may defeat summary judgment is not whether they
are self-serving, but whether they are conclusory or not based on personal knowledge. Id. at 190.
Put differently, a self-serving affidavit may defeat summary judgment in the absence of other
evidence rendering it incredible. Gonzalez, 678 F.3d at 264. Accordingly, contrary to
Defendants’ suggestion, Plaintiff is entitled to use her own certification in an attempt to defeat
summary judgment, provided that her testimony is non-conclusory and based on her personal
Plaintiff attempts to show that the progressive disciplinary program was a pretext for
FMLA retaliation on nine 19 bases, which the Court addresses in turn.
1) DuVall asked Plaintiff to wear a lab coat instead of the plastic apron that Plaintiff
This incident did not result in discipline. Moreover, “petty intra-office squabbles, do[ ]
not amount to the type of antagonism [the Third Circuit] ha[s] recognized” as actionable in the
retaliation context. Martinez v. Rapidigm, Inc., 290 F. App'x 521, 526 (3d Cir. 2008). The record
also does not reflect that Plaintiff was singled-out in DuVall’s enforcement of the lab coat policy.
DuVall Dep. Tr. 36:1-3 (“I did discuss with Ms. Marrin the need to wear a lab coat, as I did with
many employees within the laboratory.”); DuVall Dep. Tr. 36:8-11 (“When I first joined Capital
Health in the laboratory, I had conversations with all the supervisors regarding the lack of
The Court has also imported Plaintiff’s arguments attempting to establish a prima facie case
through a pattern of antagonism to its McDonnell Douglas third step analysis in order to give
Plaintiff the full benefit of the evidence in the record.
wearing lab coats in the lab.”). This incident does not therefore present any evidence of
2) DuVall spoke to Plaintiff about complying with the laboratory’s break policy and
circulated a memorandum about it.
This incident also did not result in discipline. Additionally, there was no evidence in this
case that Plaintiff was singled-out or treated differently with regard to the break policy, as
Plaintiff acknowledged in her deposition that the memorandum was published to all employees.
Marrin Dep. 201:22-202:12. Moreover, DuVall testified, and Plaintiff has not contradicted, that
she spoke to many other people in the lab about complying with the break policy. DuVall Dep.
Tr. 60:22-61:2 (Q: “Who else did you speak to about that (not complying with the break
policy)?” A: “Numerous people.” Q: “Who?” A: ‘Probably everybody in the lab. I issued a
memo to the entire laboratory about this and that we had to stop.”); DuVall Dep. Tr. 61:15-20
(“Nancy Analore, Lana Pendrack (ph.), Carolann Bass, Pat Pilkington, John Boning, Dee Wolfe,
Rita Kuziora, Susan Astrab, Irene Lakomcik, Kathy Martin. I’m sure there are many others, but I
can specifically remember speaking to those folks about it.”). This incident too does not evidence
3) Plaintiff requested a second shift in response to Bass’ request for volunteers, but DuVall
told Bass not to give Plaintiff the shift, and Plaintiff was not awarded the shift;
This incident also did not result in discipline, and the record does not reflect that Werner
was aware of its occurrence in making the decision to terminate Plaintiff. Without additional
context concerning the volunteers who were selected and the reasons for the selection process,
this incident does not evidence discriminatory animus.
4) Bass scheduled Plaintiff to work on the blood culture bench on weekends, an undesirable
posting to which she did not schedule other full-time lab techs;
Plaintiff’s allegation that other full-time lab techs were not scheduled to the blood bench
is conclusory, as Plaintiff has not provided any basis for her personal knowledge of such facts.
Furthermore, Plaintiff’s allegation in her certification that the blood culture bench was
undesirable was contradicted by her deposition testimony that working conditions on the blood
bench varied from overwhelming to very slow and that only some lab techs complained of
working on the blood bench while others did not. Marrin Dep. Tr. 440:16-442:7.
5) Bass declined to give Plaintiff a loan of 16 working hours that Plaintiff requested
pursuant to a provision of the employee handbook;
Plaintiff has not provided the Court with any evidence of an entitlement to a personal
loan of work hours, and it is not otherwise attested to in the record on summary judgment.
Plaintiff similarly has failed to provide any evidence of disparate treatment in the handling of her
alleged loan request. This incident also did not result in discipline, and the record does not reflect
that Werner was aware of its occurrence in making the decision to terminate Plaintiff.
6) The discipline for failure to comply with the written call out sick policy was unreasonable
since Plaintiff employed the method she had used without discipline under DuVall’s
predecessor and DuVall failed to provide Plaintiff with an alternative mode of calling in
The Court addresses this incident along with the other reported disciplinary action below.
7) The discipline for Plaintiff’s dispute with a coworker was unreasonable because the
investigation was inadequate and flawed; DuVall failed to interview Plaintiff about the
incident, relying upon the word of the coworker alone; Plaintiff did not leave her post
without permission as DuVall claimed; and Plaintiff’s coworker failed to provide a
written statement of her account of incident to Mr. Werner during his subsequent
investigation of the incident;
The Court addresses this incident along with the other reported disciplinary action below.
As a matter of law, however, Plaintiff’s challenge to the adequacy of Defendants’ investigation
into the incident fails. “While evidence that an investigation was utterly foolish, biased, or
unsubstantiated could be probative of a retaliatory motive, proof that it was imperfect, unwise, or
inaccurate would not. A challenge to the sufficiency or propriety of the investigation is
inadequate to establish pretext.” Caplan v. L Brands/Victoria's Secret Stores, LLC, 210 F. Supp.
3d 744, 768 (W.D. Pa. 2016) (citing Fuentes, 32 F.3d at 765 n.8). See also Money v. Provident
Mut. Life Ins. Co., 189 Fed. App’x. 114, 116–17 (3d Cir. 2006) (finding plaintiff's “naked
credibility attack” on the adequacy of an investigation insufficient to establish pretext).
Plaintiff’s characterization of the investigation as incompetent does not establish retaliatory
8) Plaintiff’s January 2012 to December 2012 performance evaluation was suspect because
DuVall provided comments, despite only joining Capital Health in November 2012;
The law is well-established in the Third Circuit that “[a]n employer may not use
evaluating criteria which lacks any relationship at all to the performance of the employee being
evaluated because to do so would be inconsistent with and contradictory to the employer's stated
purpose. Absent this type of violation . . . [courts] will not second guess the method an employer
uses to evaluate its employees.” Kautz v. Met-Pro Corp., 412 F.3d 463, 468 (3d Cir. 2005). Here,
Plaintiff does not challenge that the criteria upon which she was evaluated were legitimate, but
rather only objects to Ms. DuVall, who was hired in December 2012, commenting on an
evaluation which titularly addressed the period between January 2012 and December 2012. Ms.
DuVall, however, testified in her deposition that her comments on the evaluation were based on
her interviews with Plaintiff’s supervisor, as well as her own, post-December 2012 observations.
DuVall Dep. Tr. 58:15-18 (“The comments I recall putting in Janice’s 2012 evaluation were
issues that had come up during 2012 and that had continued on through the early part of 2013
that we weren’t seeing improvement.”). Although Plaintiff’s objection seems facially reasonable,
that one should only be evaluated by supervisors who were present during the evaluation period,
many of Ms. DuVall’s comments in the performance evaluation openly acknowledge their basis
in 2013 conduct. See, e.g., Defendant’s Ex. 17 (“Since February 2013, Janice has received two
disciplinary actions for her behavior, this indicates a lack of improvement.”); id (“Janice was
reminded several times to finish her 2012 packaging and shipping re-certification. As of March
2013 she has not completed this training and is not certified in packaging and shipping.”). The
evidence therefore does not support any invidious purpose or attempt to masquerade 2013
evaluations as 2012 evaluations.
9) The investigation into the missing documents was suspect because Plaintiff was
questioned three times, while all other employees were questioned only once.
Plaintiff provides no explanation for how this evidences retaliatory animus. Plaintiff was
the individual in whose possession three missing confidential documents were found. Common
sense dictates that she would be spoken to more often about how she obtained the documents
than other lab techs with no connection to the documents whatsoever, and that Plaintiff could
respond to or give information following the statements given by the other lab techs.
Finally, in finding the sum of Plaintiff’s grievances with the progressive disciplinary
process at Capital Health insufficient to rebut Defendants’ proffered legitimate business reason
for her termination, the Court is particularly persuaded by the reasoning of the recent unreported
decision of the Third Circuit in Young v. City of Philadelphia Police Dep't, 651 F. App'x 90 (3d
Cir. 2016). 20 In Young, a female police recruit complained that a series of disciplinary actions by
her prospective employer (a police department) constituted a pattern of antagonism sufficient to
show the department’s retaliation against her for filing a complaint of discrimination. The Third
Circuit found a pattern of six disciplinary actions over three months, coupled with the plaintiff’s
“assertions that other recruits were not similarly punished for the same conduct” sufficient “to
Young was decided under the framework of a Title VII retaliation action, which employs the
same McDonnell Douglas analysis as the present FMLA action.
infer, at the prima face stage, a causal connection between the complaint and the adverse
actions.” Id. at 98. However, the police department employing the plaintiff in Young successfully
carried its burden of articulating a legitimate, non-retaliatory reason for the plaintiff’s rejection.
The Third Circuit observed that next “[t]o show pretext, Young must show ‘both that the
[Department's] proffered explanation was false, and that retaliation was the real reason for the
adverse employment action.’” Id. at 99 (quoting Moore, 461 F.3d at 342).
The Circuit Court found that the plaintiff had failed to show that the disciplinary process
was pretextual for two reasons. Firstly, the plaintiff was unable to “contest that she engaged in
most of the underlying conduct for which she was punished.” Id. at 99. Secondly, the plaintiff
did “not put forth evidence to show that she was subjected to more discipline than recruits who
engaged in similar conduct, and thus did not show that the Department ‘treated more favorably
similarly situated persons’” who had not complained of discrimination. Id. at * 99 (quoting
Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998)). The Court
found that “general allegations about . . . comparators who received less discipline for similar
infractions” were insufficient to survive summary judgment. Id.
The same factors are in play in this case. Firstly, despite Plaintiff’s protestations to the
contrary, in the evidence actually in the record before the Court, Plaintiff does not contest that
she engaged in most of the conduct for which she was punished. Instead, Plaintiff largely only
challenges the characterization or perception of her conduct by her coworkers and superiors.
Turning first to #6, supra, her discipline for failure to comply with the call out policy on
February 4 and 6, Plaintiff acknowledges that she did not comply with the written policy in
effect at the time. Plaintiff contends instead that she was complying with an unwritten policy
established by custom. Looking to #7, supra, the January 16 dispute with one of her coworkers
for which Plaintiff was disciplined for inappropriate behavior, Plaintiff does not dispute that she
confronted her coworker about a perceived interpersonal problem between them, Marrin Dep. Tr.
101:10-20, and that her coworker was upset by this interaction. Id. at 102:5-7; 103:4-11. Rather,
Plaintiff merely claims that her coworker “overreacted” to Plaintiff’s conduct. Ibid. Furthermore,
in her deposition, Plaintiff admits that she did leave her post, but nevertheless feels that it should
not have been considered abandonment, because she was feeling ill and upset and needed to get
some air. Marrin Dep. Tr. 291:4-8. The same holds true for the minor infractions for which
Plaintiff was spoken to, but not disciplined. Plaintiff does not deny she was engaging in the
conduct about which her superiors spoke to her, be it wearing a plastic apron, or combining
break periods, only that this behavior should not have been considered objectionable or
Secondly, Plaintiff has introduced no evidence showing that “relevant comparators,” that
is, coworkers with “disciplinary records similar to hers” who engaged in “comparable” conduct,
received less discipline. Id. at 99. Instead, the only evidence in the record indicates that Capital
Health disciplined at least 12 lab techs for policy violations or inappropriate behavior during
2012 and 2013. DuVall Decl. ¶ 9. Of these, two, including Plaintiff, had approved FMLA leave;
the others did not. Of those who were disciplined that did not have FMLA status, two were
suspended, one for insubordination and one for attendance and punctuality, and a third was
discharged. DuVall Decl. ¶ 10. The Court cannot on the record before it determine if these
individuals were relative comparators, but the evidence at least suggests that Plaintiff was far
from the only lab tech to face significant disciplinary measures.
In the absence of Plaintiff showing that the discipline she received was clearly
unwarranted on the undisputed facts or was administered in a selective manner to her, this Court
simply cannot find Plaintiff has established that Defendants’ legitimate business reason for
terminating Plaintiff was pretextual. Plaintiff has provided no evidence that her supervisors did
not honestly believe their reasons for administering discipline were appropriate. See Capps, 847
F.3d at 155.
Temporal Proximity Alone
Plaintiff does not argue that the timing of Plaintiff’s termination alone may rebut
Defendants’ stated legitimate business reason for Plaintiff’s termination, but the Third Circuit
recognizes such a manner of proof, so the Court will address it here. “Temporal proximity is a
factor that can be used to establish the third element of a plaintiff's prima facie case of retaliation
as well as to discredit an employer's justification at the third step of the McDonnell Douglas
analysis.” Proudfoot v. Arnold Logistics, LLC, 629 Fed. App’x. 303, 308 (3d Cir. 2015) (citing
Jalil v. Avdel Corp., 873 F.2d 701, 709 & n. 6 (3d Cir.1989)). “However, ‘the timing of the
alleged retaliatory action must be unusually suggestive of retaliatory motive before a causal link
will be inferred.’” Id. (quoting Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, 332 (3d Cir. 2015)
(internal quotation marks omitted)). “Thus, temporal proximity may be sufficient to show pretext
‘[i]n certain narrow circumstances’ based on the particular facts and stage of a case.” Id. (quoting
Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007)).
The Third Circuit has not yet exhaustively opined on the complete list of circumstances
in which temporal proximity alone may establish pretext, but has offered a few guideposts for the
lower courts in conducting our analysis. In the seminal case of Lichtenstein v. Univ. of Pittsburgh
Med. Ctr., 691 F.3d 294 (3d Cir. 2012), the Third Circuit discussed the circumstances in which
legitimate bases for termination had accrued before the plaintiff engaged in a protected activity,
but could be overcome, at McDonnell Douglas step three, by the temporal proximity of a
subsequent adverse employment action to the protected activity alone. First, discussing the
Seventh Circuit’s opinion in Kohls v. Beverly Enterprises Wisconsin, Inc., 259 F.3d 799 (7th Cir.
2001), the Third Circuit approved that court’s reasoning that, where a supervisor is aware of
existing problems with an employee before the plaintiff employee takes a protected leave, but
then chooses to fire the plaintiff only after the leave, and cites the preexisting problems as the
legitimate business reason for the termination, then the temporal proximity of the firing to the
protected leave alone may be sufficient to defeat summary judgment. Id. at 311. The Third
Circuit also endorsed the inverse principle, which was the actual holding in Kohls, that where the
employer did not discover the legitimate deficiencies in the employee’s work until after the
employee took the protected leave, the temporal proximity of the plaintiff’s firing to the
protected leave would not defeat summary judgment for the employer. The Lichtenstein Court
applied the principles of Kohls to find that the plaintiff in Lichtenstein had met her burden of
demonstrating pretext on the basis of temporal proximity alone because (i) the undoubtedly
sufficient non-discriminatory reasons for her termination had accrued prior to her taking leave,
(ii) her employer was aware of these bases prior to plaintiff’s taking leave, and (iii) her employer
only chose to fire her, citing those bases, after the plaintiff took leave. Id. Those are not the facts
In this case, Defendant Capital Health terminated Plaintiff for failure to cooperate with an
internal investigation. Plaintiff contends that this reason was in fact a pretext for Defendants’
actual motive of retaliating against Plaintiff for her March 18, 2013 complaint to Human
Resources about her supervisors’ conspiracy to interfere with her FMLA leave, or, alternatively,
retaliating against Plaintiff for taking her FMLA leave beginning February 26, 2013. A key
contributing factor to Defendants’ good faith belief that Plaintiff was not cooperating with the
investigation, however, was Defendant Werner’s conclusion, after reviewing the materials
collected during the investigation, that it was likely that Plaintiff herself took the confidential
documents from Ms. Bass’ office during the weekend of February 23-24. Werner’s honest belief
that Plaintiff likely took the documents made it clearer that Plaintiff was not cooperating with the
investigation by initially claiming to have received the documents from an anonymous coworker
and then refusing to answer questions about the source and nature of the documents she received.
Applying the Lichtenstein-Kohls framework, part of the conduct of Plaintiff that Defendants
perceived to be culpable occurred around February 23-24, before Plaintiff engaged in the
activities protected under the FMLA that she claimed invited retaliation. As in Kohls, however,
Werner, the decision maker for Capital Health in human resources matters, did not become
aware of this activity until after Plaintiff had gone on leave and complained of discrimination.
Specifically, the sequence of events began with Plaintiff’s meeting with Mr. Werner
during the week of February 18, 2013. Defendants’ Ex. 19. At that meeting, Plaintiff was not yet
concerned about any alleged conspiracy to misreport her FMLA leave, and instead complained to
Werner about a variety of subjects including deficiencies in the microbiology lab, the attitudes of
her co-workers, and her last two disciplinary actions, which she claimed were unwarranted.
Marrin Dep. 162:10-24, 175:21-177:3, 185:19- 187:18; Werner Decl. ¶ 3; Werner Notes,
Defendants’ Ex. 21. Werner conducted an internal investigation into Plaintiff’s complaints
against her coworkers and referred the issues regarding laboratory policy to Bass. Werner Decl. ¶
4. Later that same week, on February 21, 2013 the incident for which Plaintiff was disciplined
for speaking inappropriately to her supervisor, Ms. Bass occurred in Bass’ office. Just a few days
later, Plaintiff worked the weekend of February 22-23, the time when the confidential e-mails
and other documents disappeared from the Carolann folder in Ms. Bass’ office filing cabinet.
In the meantime, Plaintiff and Mr. Werner scheduled a follow-up meeting for March 18
to discuss the results of his internal investigation into her complaints from the week of February
18. Plaintiff, however, went out on FMLA leave beginning February 26, 2013. While still out on
leave, Plaintiff attended the previously scheduled March 18 meeting with Werner, but instead of
discussing her previous complaints, Plaintiff produced print outs of three confidential e-mails
that later were revealed to have been among the documents taken from Ms. Bass’ office on or
around the weekend of February 22-23. Ms. Bass reported to Werner that the documents were
missing from her filing cabinet at some point in “early 2013,” but the record does not reflect
whether this was before or after Plaintiff produced some of the taken documents. Bass Decl. ¶
15. Regardless, the sequence of events that is known demonstrates that Plaintiffs’ supervisor
Bass and Human Resources Director Werner could not have become aware of the need for an
investigation into the missing documents until at or shortly after Plaintiff’s protected activities of
going on leave on February 26 and complaining of discrimination at the March 18 meeting. The
close temporal proximity between Plaintiff’s complaint, return from FMLA leave, and firing is
thus not sufficient on its own to establish pretext in this case.
Even to the extent that Plaintiff’s failure to cooperate with Defendants’ internal
investigation was a basis for termination accruing after Plaintiff’s engagement in protected
activities, this case remains distinguishable from those in which temporal proximity alone has
been found sufficient to establish pretext because there is no evidence that Defendants could
have acted against Plaintiff on the same basis at some earlier time, but failed to do so until after
Plaintiff engaged in protected activity. In the unreported case of Sgro v. Bloomberg L.P., 331 F.
App'x 932 (3d Cir. 2009), for example, the Third Circuit found that temporal proximity
established pretext where the plaintiff had worked in the same group within his employer’s
company for years on a schedule of fewer than five days per week and the employer only
requested that the plaintiff work five days per week, and terminated the plaintiff for refusing,
after the employee complained of discrimination. The Third Circuit held that although the
“increased work requirement might have been entirely justifiable for business reasons, a
reasonable jury could conclude that its suddenness points to retaliation.” Id. at 940. In other
words, the employer in Sgro could have caused the legitimate basis for terminating the plaintiff
— his failure to agree to working more days per week — to accrue at any time during a long
status quo — his years working in the same group. The Circuit Court thus held that a jury could
find the sudden demand by the employer setting up the legitimate basis for termination — the
requirement of a five day work week — pretextual due to its proximity to the plaintiff’s
complaint of discrimination.
Here, the comparable act of Defendants leading to Plaintiff’s conduct creating a nondiscriminatory basis for termination — failure to cooperate with an internal investigation — was
the questioning of Plaintiff as part of the internal investigation. Simply put, Plaintiff could not
have failed to answer the investigation’s questions until she was questioned. Thus, unlike the
defendants in Sgro, Defendants could not have chosen to question Plaintiff at any time during a
long status quo, only suddenly to do so after Plaintiff engaged in protected conduct. The
confidential documents involved in this case went missing on or around the weekend of February
23-24. They could not have been discovered missing, at the earliest until Monday, February 25,
2013, when Ms. Bass returned to work. Plaintiff, however, left for a month of FMLA leave on
Tuesday, February 26, 2013. Unless this Court were prepared to hold that Defendants should
have discovered the documents missing, launched an investigation, and questioned Plaintiff
immediately on Monday, February 25, it would have been impossible for Defendants to question
Plaintiff before she engaged in an activity protected by the FMLA. Accordingly, unlike the facts
of Sgro, it is improbable in this case that the act of Defendants which led to the legitimate
business reason for Plaintiff’s termination was strategically employed only after Plaintiff’s
protected conduct. Defendants simply had no choice but to investigate the missing documents
after Plaintiff left on FMLA leave, if they wished to investigate them at all. Similarly, because
Plaintiff complained of discrimination and disclosed for the first time her possession of the
confidential documents on March 18, while Plaintiff was on FMLA leave, and Defendants could
not interview Plaintiff during her leave, Defendants had no choice but to interview Plaintiff after
her complaint if she were to be interviewed at all.
This Court’s reading of Sgro is also consistent with the precedential decision in Delli
Santi v. CNA Ins. Companies, 88 F.3d 192, 200 (3d Cir. 1996), upon which the Sgro court relied.
In Delli, the Third Circuit held that “under the NJLAD’s retaliation provision, the employer's
sudden investigation of employee’s low gas mileage reports after years of [the] employee
submitting these suspicious reports without incident indicated a retaliatory motive.” Sgro, 331
Fed App’x at 940-41. Again, the employer in that case took action — launching an investigation
— which led to the legitimate basis for the plaintiff’s termination — inaccurate mileage reports
— suddenly after the plaintiff engaged in a protected activity and only after years in which the
employer had had the opportunity to act. Here, by contrast, it was not the case that Plaintiff had a
long history of being suspected of having taken confidential documents and Defendants only
chose to launch an investigation into such suspicions upon Plaintiff’s complaint of
discrimination. Instead Defendants only became aware of the conduct requiring investigation
during or after Plaintiff’s engagement in FMLA protected activity.
The same principle distinguishes the present case from the Third Circuit’s recent decision
in Fraternal Order of Police, Lodge 1 v. City of Camden, 842 F.3d 231 (3d Cir. 2016). There, the
Circuit Court held that the district court below should have found evidence of pretext sufficient
to defeat summary judgment where “evidence disclosed that some of [plaintiffs’] objections were
followed by adverse consequences in a matter of days. . . . Retaliatory motive is often revealed
by such evidence. At the very least, it certainly raises a question of fact for a jury.” Id. at 242-43.
The Court found the temporal proximity of only a few days sufficient to defeat summary
judgment, again in a circumstance in which the act of defendants, in that case placement of
plaintiffs on a low performer list and transfer of plaintiffs to other duty assignments could have
been performed at an earlier time, but were only undertaken after plaintiffs’ protected
complaints. Compared to the police department in Fraternal Order of Police, which had the
capacity to transfer the plaintiffs or criticize their performance at any time, the Defendants in this
case did not have a comparable ability to investigate conduct which had not yet been brought to
their attention. Fraternal Order of Police and its ilk establish the principle that employers are not
entitled to sit on their suspicions, waiting to act upon them only after allegations of
discrimination or invocation of protected leave occurs. In the case at bar there was no
comparable delay by Defendants in investigating the missing confidential documents. In context,
therefore, their prompt action does not implicate the same concerns of potential discriminatory
Accordingly, given the particular facts of this case, this matter does not fall within the
narrow set of circumstances in which close temporal proximity alone is sufficient to establish
B. Count V NJLAD Retaliation
The elements of an NJLAD Retaliation claim closely track those under the FMLA. To set
forth a prima facie case of retaliation under the NJLAD “the employee must demonstrate  that
she engaged in a protected activity that was known to the employer,  that she was subjected to
an adverse employment decision, and  that there is a causal link between the activity and the
adverse action.” LaPaz v. Barnabas Health Sys., 634 F. App'x 367, 369 (3d Cir. 2015), cert.
denied, 137 S. Ct. 188, 196 L. Ed. 2d 127 (2016) (citing Battaglia v. United Parcel Serv., Inc.,
214 N.J. 518, 545, 70 A.3d 602, 619 (2013)).
The New Jersey courts have also imported the McDonnell Douglas burden-shifting
framework to adjudicate NJLAD claims based upon circumstantial evidence. See Monaco v. Am.
Gen. Assur. Co., 359 F.3d 296, 300 (3d Cir. 2004) (“The Supreme Court of New Jersey has
explained the three-step burden shifting analysis as a starting point for analysis of claims under
the NJLAD. Under this analysis a plaintiff first must establish a prima facie case . . . . If the
plaintiff does so the burden shifts to the defendant to articulate a legitimate non-discriminatory
reason for the adverse employment action. Then, if the defendant meets this rather light burden,
the plaintiff must discredit the defendant's proffered reason for its action or adduce evidence that
discrimination was more likely than not a motivating or determinative cause of the adverse
employment action.”) (quotations omitted).
The Price Waterhouse framework similarly applies to NJLAD claims based upon direct
evidence. Bertolotti v. AutoZone, Inc., 132 F. Supp. 3d 590, 598 (D.N.J. 2015) (quoting Bergen
Commercial Bank v. Sisler, 157 N.J. 188, 208, 723 A.2d 944 (N.J.1999)). Under NJLAD,
“‘[w]hen an employee attempts to prove discrimination by direct evidence, the quality of
evidence required to survive a motion for summary judgment is that which if believed, proves
[the] existence of [a] fact in issue without inference or presumption.’” Ibid. (emphasis in
original). “In the context of a claim for wrongful discharge, an employee must show direct
evidence that decisionmakers placed substantial negative reliance on an illegitimate criterion . . .
in deciding to terminate his or her employment.” Id. (quotations omitted). Such direct evidence
“requires ‘conduct or statements by persons involved in the decisionmaking process that may be
viewed as directly reflecting the alleged discriminatory attitude.’ ” Starceski v. Westinghouse
Electric Corp., 54 F.3d 1089, 1096 (3d Cir.1995) (quoting Griffiths v. CIGNA Corp., 988 F.2d
457, 470 (3d Cir. 1993)). “If the employee meets this burden, the burden then shifts to the
employer to show it would have made the same decision even in the absence of the
impermissible consideration.” Bertolotti, 132 F. Supp. 3d at 598 (quotation omitted).
1. Circumstantial Evidence
This Court’s analysis of Count V, Plaintiff’s NJLAD retaliation claim on the basis of
circumstantial evidence, is therefore the same as its consideration of Plaintiff’s FMLA retaliation
claim, supra. The Court finds that, although Plaintiff has set forth a prima facie case of
retaliation, Defendant has shown a legitimate business reason for Plaintiff’s termination, and
Plaintiff has failed to show pretext. Defendants are therefore entitled to judgment on Count V on
the basis of the circumstantial evidence.
2. Direct Evidence
Unlike Plaintiff’s FMLA claim, for which there manifestly was no direct evidence of
discriminatory intent, Plaintiff alleges in the context of her NJLAD claim that Defendants have
admitted to substantially, negatively relying on an illegitimate criterion. Specifically, Plaintiff
argues that Defendants’ termination of Plaintiff was “based on the Defendants’ belief that she
took the emails and or would not tell Defendant DuVall who gave her the emails;” Opp. 16.
Plaintiff contends that either her conduct in taking the e-mails or the anonymous person’s
conduct in taking the e-mails was protected from reprisal under NJLAD pursuant to the New
Jersey Supreme Court’s decision in Quinlan v. Curtiss-Wright Corp., 204 N.J. 239 (2010). From
this Plaintiff argues that Defendants were not permitted to negatively rely on the taking of the
documents, and that Defendants’ termination of Plaintiff in reliance on the protected taking was
a violation of the NJLAD.
As a threshold matter, assuming as the Plaintiff does, that Quinlan would govern the
conduct of either Plaintiff or a third party in taking Defendants’ documents, the Court disagrees
that the taking of documents in this case would be protected under NJLAD, pursuant to the
holding of the New Jersey Supreme Court in Quinlan. 21 The New Jersey Supreme Court
succinctly set forth the facts of the case in Quinlan.
Plaintiff Joyce Quinlan, then the Executive Director of Human Resources for defendant
Curtiss–Wright Corporation, believed that the company had discriminated against her
when it promoted a man she thought was less qualified than she and made him her
supervisor. In an effort to prove that her suspicions were true and that defendant was
engaged in widespread sex discrimination, plaintiff gathered documents that were
available to her in the ordinary course of her employment and turned copies of them over
to an attorney. During discovery in her discrimination lawsuit, defendant learned that
plaintiff had taken, and was continuing to take, copies of hundreds of documents it
considered to be confidential. Following disclosure of one document that was particularly
helpful to plaintiff's claim that she had been discriminated against when she was not
The Court notes a certain inherent tension in Plaintiff’s failure to definitively allege at the
stage of a motion for summary judgment after almost three years of discovery whether Plaintiff
in fact took the documents at issue in this case from her supervisor’s office or was provided with
them by a third party. In the remainder of her motion papers, Plaintiff contends that she did not
take the confidential emails at issue. In her direct-evidence of retaliation argument, however, she
contends that she should prevail under Quinlan whether she took the documents or not. The
Court observes that Plaintiff’s argument in the alternative raises a potential standing issue of
whether, even if a third party’s action in taking Defendants’ documents were protected under
NJLAD, Plaintiff would be able to assert the third party’s rights by refusing to comply with the
Defendants’ investigation. As this issue is not dispositive, however, the Court will presume that
Craig v. Suburban Cablevision, Inc., 274 N.J. Super. 303, 312–13, 644 A.2d 112, 117 (App. Div.
1994), aff'd, 140 N.J. 623, 660 A.2d 505 (1995) resolves the standing question in Plaintiff’s
favor, as Plaintiff argues.
selected for the promotion, defendant fired her. The letter terminating plaintiff from her
employment accused her of breach of company policies and theft. Believing that
defendant had fired her because of the prosecution of her discrimination claim, plaintiff
added a retaliation claim to her pending lawsuit.
Quinlan v. Curtiss-Wright Corp., 204 N.J. 239, 244, 8 A.3d 209, 211–12 (2010). To evaluate
whether the plaintiff’s taking of the confidential documents was a protected activity under
NJLAD, and therefore an impermissible basis for the plaintiff’s firing, the New Jersey Supreme
Court developed a multi-factor balancing test, including: 1) how the employee came to have
possession of, or access to, the document; 2) what the employee did with the document; 3) the
strength of the employer’s interest in keeping the document confidential; 4) whether there is a
clearly identified company policy on privacy or confidentiality that the employee’s disclosure
violated; 5) the relevance of the document vs. the disruptiveness of its disclosure to the
employer’s ordinary business; 6) the strength of the employee’s reason for taking the document
rather than merely identifying its existence to be requested in discovery; and 7) the broad
remedial purpose of the legislature in passing LAD and the balance of rights of the employee and
employer in prohibiting or permitting the document’s use in the case.
Applying the newly minted balancing test to the facts of the case before it, the New
Jersey Supreme Court found that “the wholesale copying and removal of documents was not
protected activity and that if defendant terminated plaintiff for that reason, she could not
prevail.” Id. at 272. “Plaintiff had access to all of the documents as part of her duties, but
amassed most of them through systematic review of files in her department; some of the initial
1800 pages included plainly confidential information about other employees; and defendant had
a reasonably clear company policy against taking the documents to which plaintiff had agreed.”
Id. at 272 (emphasis added). The New Jersey Supreme Court found that the same could not be
said of the document relevant to the plaintiff’s case, which she provided only to her attorneys.
Quinlan, 204 N.J. at 272–73 (“On the other hand, as it relates to the Lewis appraisal, plaintiff
gave it only to her attorneys, it was directly relevant to her claim, she had a colorable basis to
believe that the Lewis appraisal would not have been disclosed during discovery, and although
the use of that document was clearly upsetting to Lewis personally, it was not disruptive because
its disclosure did not threaten the operation of the company in any way.”).
Here, it is undisputed that the three confidential emails that Plaintiff ultimately produced
to Mr. Werner were originally contained within a folder marked “Carolann,” stored in the filing
cabinet of Ms. Bass. It is also undisputed that the folder contained, in addition to the three emails
and other personnel files relevant to Plaintiff, the personnel files of other lab techs and some
documents personal to Ms. Bass. Bass Decl. 18. Capital Health had a clearly defined
confidentiality policy available on line and contained in its Employee Handbook, which Plaintiff
admitted receiving. Marrin Dep. Tr. 45:7-16. Accordingly, as was the case for the documents
taken wholesale in Quinlan, if Plaintiff, or another employee, in fact took the documents from
the folder in this case, containing both the three emails and a host of other confidential
documents relevant to other employees, such a taking would not be protected under NJLAD.
In point of fact, the taking in this case would actually be more egregious than that in
Quinlan, because, looking to the test’s very first factor, Plaintiff or the other employee would
have acquired the documents by breaking into a supervisor’s private office and closed filing
cabinet drawer. See Quinlan, 204 N.J. at 269 (“If the employee came upon it innocently, for
example, in the ordinary course of his or her duties for the employer, this factor will generally
favor the employee. In that evaluation, it will not be necessary that the employee came upon the
document either inadvertently or accidentally, but it will suffice if the employee came into
possession of the document in the ordinary course of his or her duties. If, however, the discovery
of the document was due to the employee's intentional acts outside of his or her ordinary duties,
the balance will tip in the other direction. Therefore, the employee who finds a document by
rummaging through files or by snooping around in offices of supervisors or other employees will
not be entitled to claim the benefit of this factor.”). These documents were clearly not ones to
which the Plaintiff would have access in the ordinary course of her duties, and were obtained by
her, or someone else through an intentional, unauthorized means.
Surveying the remaining factors that the Court in Quinlan set forth, but did not apply to
its facts, I find that these factors are more mixed in their application in this case, but that, in the
aggregate, they also weigh against finding the taking of the documents in the Carolann folder to
be an activity protected under NJLAD. Under the second factor, Plaintiff brought the three
confidential e-mails to the attention of her employer’s human resources department, an innocent
use of the documents. Ms. Bass’s personal jury form, also among the documents taken, however,
was left abandoned in a public space. Bass Decl. 17. The confidential personnel files of the other
lab techs that were taken were simply never returned, remaining in the possession of either
Plaintiff or a third party who had no right to review them. The second factor is thus mixed in its
import. The sixth factor does not apply in this case because the documents in question were
taken, perhaps in advance of a complaint to human resources, but not in anticipation of litigation.
Finally, the third, fifth, and seventh factors, all of which in one form or another call upon
the Court to weigh the Defendants’ interest in confidentiality against the interest of the Plaintiff
in being able to develop and pursue her rights protected by NJLAD, are also split. For the three
confidential e-mails which at least discuss FMLA leave, there is at least some merit to Plaintiff’s
claim of an interest in possession versus the Defendants’ interest in confidentiality. Without
evaluating the relative weight of the taken documents’ content, it is sufficient for this Court to
observe that, unlike Quinlan, in which the New Jersey Supreme Court found one of the taken
documents to significantly support the plaintiff’s claims of sex discrimination, weighing in favor
of protecting her taking of the document, here Plaintiff does not argue that any of the three
confidential e-mails is a “smoking gun” providing direct evidence of discrimination. Instead,
Plaintiff offers that at the time she brought them to Human Resources, she perceived them as
such, and now argues that they support an inference that the progressive discipline program
conducted against her was pretextual. For all of the other documents that went missing however,
these factors weigh very strongly in favor of Defendants’ confidentiality interest. A firm’s
protection of confidential employee personnel files from unauthorized disclosure is a paramount
obligation of all employers.
Taken together, the factors, particularly the culpable manner in which the documents
were obtained and the strong employer interest in protecting the personnel documents of other
employees, weigh against a finding of protected conduct in this case. Assuming, as Plaintiff
does, that the same analysis would apply to the conduct of a third party in taking the folder from
Ms. Bass’s office, the Court sees no difference in the lack of protection under NJLAD.
Accordingly, because “[d]irect evidence” means evidence sufficient to allow the jury to find that
“the ‘decision makers placed substantial negative reliance on [the protected activity] in reaching
their decision’” to fire Plaintiff, and the taking of the documents from a closed filing cabinet in
Ms. Bass’s private office was not a protected activity, Plaintiff has failed to show that
Defendants’ decision-making process in relying on the taking of the documents and Defendants’
reaction to Plaintiff’s response to the investigatory inquiry were improper or discriminatory.
Connors v. Chrysler Fin. Corp., 160 F.3d 971, 976 (3d Cir.1998) (quoting Price Waterhouse,
490 U.S. at 277, 109 S.Ct. 1775, 104 L.Ed.2d 268); see also Anderson v. Consol. Rail Corp., 297
F.3d 242, 248 (3d Cir. 2002) (same).
Because Plaintiff has failed to make a prima facie case of retaliation on the basis of direct
evidence, no consideration of the mixed-motive burden-shifting framework is required. Even
were Plaintiff to have shown that the taking of the confidential documents in this case was a
protected activity, Plaintiff’s direct evidence of retaliation claim would nevertheless fail because
Defendants have met their burden under the Price Waterhouse framework of demonstrating that
they would have made the same decision absent the consideration of the taking of the documents.
As explained in the context of the FMLA, supra, Defendants have produced substantial evidence
supporting their assertion that the legitimate business reason for Plaintiff’s termination was
Plaintiff’s failure to cooperate with an internal investigation. This failure to cooperate comprised
Plaintiff’s failure or refusal to respond to Defendants’ questions during interviews, particularly
from whom or how Plaintiff obtained the confidential documents and what other documents
were obtained along with the confidential e-mails Plaintiff produced to human resources.
Defendant’s Ex. 5. Assuming that Quinlan rendered the taking of the documents a protected act
under NJLAD, the decision nevertheless provides no protection from the disclosure of the
existence of the protected act. In other words, Plaintiff has provided no legal authority that
NJLAD entitles a plaintiff not only to take documents or receive documents, but to conceal the
manner of their acquisition from her employer. The decision of Defendants to terminate Plaintiff
for a perceived failure to disclose unprotected information and general refusal to cooperate is
thus well documented in the record, separate and apart from Defendants’ honest belief that
Plaintiff herself took the confidential documents at issue.
C. NJLAD Failure to Accommodate
In order to prevail on a failure to accommodate claim under the NJLAD, a plaintiff must
establish four elements:
(1) she was disabled and her employer knew it;
(2) she requested an accommodation or assistance;
(3) her employer did not make a good faith effort to assist; and
(4) she could have been reasonably accommodated.
Armstrong v. Burdette Tomlin Mem. Hosp., 438 F.3d 240, 246 (3d Cir. 2006) (citing Taylor v.
Phoenixville Sch. Dist., 184 F.3d 296, 317–320 (3d Cir.1999). See also Bertolotti v. AutoZone,
Inc., 132 F. Supp. 3d 590, 602 (D.N.J. 2015) (same). When an employee requests an
accommodation for a disability, the employer has a responsibility “to ‘engage the employee in
the interactive process of finding accommodations.’ ” Armstrong, 438 F.3d at 246
(quoting Taylor, 184 F.3d at 319). This burden does not require that “any particular concession
must be made by the employer ... [but instead what it] requires is that employers make a goodfaith effort to seek accommodations.” Victor, 4 A.3d at 150 (alterations in original)
(quoting Taylor, 184 F.3d at 317). An employer making a good faith effort in the interactive
process bears the responsibility of “mak[ing] [a] reasonable effort to determine the appropriate
accommodation.” Armstrong, 438 F.3d at 247 (quoting Tynan v. Vicinage 13 of Super. Ct., 351
N.J.Super. 385, 798 A.2d 648, 657 (Ct.App.Div.2002)). “If an ‘employee could have been
reasonably accommodated but for the employer's lack of good faith,’ the employee will win on
his failure to accommodate claim.” Id. (quoting Taylor, 184 F.3d at 319-20.
Although Defendants use a standard in which the elements are phrased slightly
differently, they fundamentally challenge the third and fourth elements of Plaintiff’s prima facie
case under the Armstrong standard: that Defendants did not make a reasonable, good faith effort
to assist, and that Plaintiff could be accommodated. Specifically, Plaintiff contends that the lab’s
call out policy, prohibiting the leaving of voice messages, impeded her ability to access her
authorized disability leave. Plaintiff contends that since the policy required her to speak to a
supervisor or tech-in-charge rather than leaving a message when calling out sick, and there were
occasions when no supervisor or tech-in-charge was available, Plaintiff would be “forced to
appear for work, sick . . . .” Doc. 24 at 12, ¶¶15-16. Accordingly, Plaintiff requested some
accommodation allowing her to call in sick when no supervisor or tech-in-charge was
Looking to the challenged elements, it is clear that Defendants made a good faith effort to
accommodate and that Plaintiff could not be further accommodated because the undisputed
evidence in the record shows that Defendants’ existing accommodations and procedures already
provided the relief Plaintiff sought. Firstly, in her deposition testimony, Plaintiff made clear that
the situation she felt compelled accommodation – not being able to reach a supervisor or tech-incharge in order to call out – had never actually happened to her. Plaintiff detailed a single
incident taking place when Plaintiff called out for March 3-6, after she was disciplined for
leaving a voicemail on Ms. Bass’ machine, in which upon calling the laboratory clerk, she was
briefly unable to speak to a supervisor or tech-in-charge, until the clerk was able to locate the
acting supervisor of the blood bank, who accepted her call out. Marrin Dep. 138:18–139:18,
142:19–144:8, 147:23-148:9; 249:22-250:7.
Plaintiff also produced evidence which undermined her claim that she often would not
know whom to call or for whom to ask in order to call out. The work schedules Plaintiff
produced clearly show asterisks next to certain lab tech names and the notation, “Tech in
There is some dispute as to whether Plaintiff ever formally requested an accommodation
concerning the call out policy, but for the purposes of this motion, the Court will assume that she
did so, on the basis of Plaintiff’s deposition testimony.
Charge.” Defendants’ Exhibit 32. After claiming she did not know how the lab designated a tech
in charge, Plaintiff then conceded the asterisk could denote the tech in charge for that shift.
Marrin Dep. 140:16–142:8; see also Burns Dep. 11:20-12:7.
Finally, the specific accommodation that Plaintiff asserts should have been offered —
“providing her with alternative telephone numbers or allowing her to leave a message,” Second
Amended Complaint at 12, ¶17 — was already provided by the laboratory. Plaintiff had access to
Lab Director DuVall’s cell phone. Marrin Dep. 200:4-6 (Q. “Was Joanie Duvall’s cell phone
number posted in the lab? A. I believe it was.”). See also Burns Dep. 15:811. Ms. DuVall
testified that her number was available for call outs, and that calling her directly to request sick
leave would have been compliant with the call out policy. DuVall Dep. Tr. 71:1-3 (Q: “Could
Janice Marrin have used your cell phone number to call out sick?” A: “Absolutely.”); Id. at
71:11-15 (Q: “If Ms. Marrin called you up and said, I’m sick, she wouldn’t have been compliant
with the policy.” A: “She would have been compliant with the policy.”). Plaintiff provides no
evidence to contradict this account.
Accordingly, the undisputed evidence in the record demonstrates that Plaintiff did not
experience a work difficultly requiring accommodation due to the call out policy, and even if she
had experienced such difficulty, the existing policies, procedures, and resources of her employer
already provided the only accommodation she requested. Plaintiff therefore has failed to state a
prima facie claim for failure to accommodate.
D. Individual Claims
Because the Court grants Defendants’ motion for summary judgment on all of Plaintiff’s
claims on the grounds that Plaintiff has not met her burden to produce some evidence of
discriminatory intent or pretext on the part of Capital Health or its agents, judgment in favor of
the individual defendants will be granted on the same bases discussed above.
For the foregoing reasons, Defendants’ motion for summary judgment is granted and
Plaintiff’s cross motion is denied.
/s/ Freda L. Wolfson
The Honorable Freda L. Wolfson
United States District Judge
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