EL BEY v. ROBERT WOOD JOHNSON UNIVERSITY HOSPITAL et al

Filing 144

MEMORANDUM AND ORDER that Defendant's 132 Motion for Summary Judgment is granted. Plaintiff's "Affidavit in Support of Summary Judgment as Matter of Law" (ECF Nos. 128 and 133 ) is denied. The Clerk of the Court is directed to close the case. Signed by Judge Peter G. Sheridan on 6/11/2018. (mps)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

)

CLIFFORD JEFFERSON EL BEY

Civil Action No:
15-cv-2537 (PGS)(LHG)

Plaintf/
V.

ROBERT WOOD JOHNSON UNIVERSITY
HOSPITAL, et al.,

)
)
)
)
)
)

MEMORANDUM
AND
ORDER

Defendants.
)
)
This matter comes before the Court on Plaintiff Clifford Jefferson El Bey’s “Affidavit in
support of Summary Judgment as a Matter of Law” (ECF Nos. 128, 133) and Defendant Robert
Wood Johnson’s (hereinafter, “RWJ”) Motion for Summary Judgment. (ECF No. 132).

In

reviewing Plaintiff’s papers liberally, the Court considers Plaintiff’s affidavits as a motion for
summary judgment. See Erickson v. Pardus, 551 U.S. 89,94 (2007).1 Plaintiff claims that RWJ
wrongfully refused to promote him due to his religious beliefs, in violation of Title VII of the Civil
Rights Act of 1964, 42 U.S.C.

§ 2000e, et seq. For the reasons discussed herein, Plaintiff’s Motion

is denied, and Defendant’s Motion for Summary Judgment is granted.
BACKGROUND

On July 13, 2000, Plaintiff was hired by RWJ as a Senior Central Sterile Processing
(“C.S.P.”) Technician and is a member of Teamsters Local 97 (hereinafter, the “Union”).
(Defendant’s Statement of Undisputed Material Facts [“SUMF”l at

¶ 5).

Senior C.S.P.

‘Plaintiff had filed complaints that did not set forth a clear and plain statement of a cause of action.
The Court discusses the discernable causes of action and arguments presented in Plaintiff’s motion;
the other claims do not make sense and, therefore, are not addressed.

Technicians are responsible for, among other things, sterilizing medical instruments and disposing
medical waste. (Id. at ¶ 13). The C.S.P. Technician position is covered by a Collective Bargaining
Agreement (“CBA”) between RWJ and the Union. (Id. at

¶ 5; ECF No

132-4 at 27-3 6, “CBA”).

As an RWJ employee, Plaintiff attended orientation, received an employee handbook and
training on the hospital’s policies, including RWJ’s Equal Employment Opportunity (“EEO”)
Policy, Seniority Policy, and the Transfers and Promotion Policy. (Id. at

¶J

6-7). RWJ’s EEO

Policy states, in pertinent part, that “all employment decisions, including but not limited to

.

promotions, will be made without regard to race, color, religion, [and] creed.” (Id. at ¶ 8; ECF No.
132-4 at 38, “EEO Policy”). With regards to transfers, the Seniority Policy states, “[a]ll other
things being equal, hospital seniority determines preference for a transfer.” (Id. at

¶ 9;

ECF No.

132-4 at 40, “Seniority Policy”). Most importantly, RWJ’s Transfers or Promotion Policy states:
Applications for transfer will be considered on the basis of qualification, reason for
request and requirements of the department involved. Employees with less than
satisfactory work, behavior issues, or disciplinary record, may be refused transfer
on that basis
1
(Id. at

¶

10; ECF No. 132-4 at 41, “Promotion Policy”).

In 2008, Plaintiff submitted paperwork with RWJ, advising it that he had changed his
surname to “El Bey” and that he was declaring his affiliation with the Moorish Science Temple of
America. (Id. at

¶

ii). RWJ abided by his request and updated its records to reflect this change.

(Id.).
In any event, throughout his employment with RWJ, Plaintiff has demonstrated poor work
ethic and has failed to meet RWJ’s performance expectations. Employment Evaluations for the
2011 and 2012 work year reflect RWJ’s concerns over Plaintiff’s inability to receive criticism,
listen, and be held accountable. (Id. at ¶ 17; ECF No. 132-4 at 45-51, “2011 Evaluation”; ECF No.
132-4 at 5 1-56, ‘2012 Evaluation”). RWJ’s 2012 Evaluation was particularly critical of Plaintiffs
2

continued inability to demonstrate honesty and accountability, “[o]ur customers and other staff
have not seen consistency in accountability. When challenge[d]

.

.

.

[Plaintiff] was often

combative, missing opportunity to improve.” (2012 Evaluation at 3). The Evaluation also noted
Plaintiffs struggles with performing his job responsibilities, such as prioritizing work activities,
sterilizing areas, and handling and tending to medical instruments. (Id. at 3).
During his tenure, from 2000 to 2017, Plaintiff received sixteen “Employee Counseling
Notices,” which gave written or oral warnings regarding Plaintiffs work performance. (ECF No.
132-4 at 58-89, “Employee Counseling Notices”). Specifically, Plaintiff was cited several times
for incorrectly sterilizing medical instruments, leaving the instruments covered in blood and, in
one instance, bone matter, and mislabeling instruments for medical procedures. (Id.). Plaintiff also
received three disciplinary notices for: failing to properly sterilize medical equipment; mislabeling
medical instruments and failing to properly prepare trays with the required equipment; and
tardiness and absenteeism. (Id,).
This being said, in 2012, Plaintiff submitted his first application for promotion to
Supervisor C.S.P., a position not covered by the CBA. (SUMF at

¶

The position was

18-19).

ultimately given to Wayne DeCosta, another RWJ employee, who had greater seniority than
Plaintiff and was considered more qualified for the role. (Id. at

¶J

20-22). At his deposition,

Plaintiff conceded that RWJ’s denial of his application was not discriminatory, explaining, “I
didn’t really have a problem with [DeCosta] getting the position because he.

.

.

had seniority over

me, which I honored.” (ECF No. 132-3 at 45, “Plaintiffs Deposition” at 155:10-13). This being
said, Plaintiff filed a grievance regarding the denial of his application. (SUMF at

¶ 24).

On October 18, 2012, Plaintiff attended a grievance meeting with his Union
Representative, Jill Pitman; also present at the meeting were Nancy Schoolfield, C.S.P.

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Department Director, and Arlene Thompson, Plaintiffs Supervisor. (Id. at ¶ 25). At this meeting
it was explained to Plaintiff that he was not qualified for the position, since he required additional
training. (Id.).
According to Plaintiff, around this time he was criticized by Schoolfield and Thompson for
his religious beliefs and affiliation with the Moorish Temple. Specifically, Schoolfield allegedly
said to Plaintiff, ‘You people think you’re above the law.” (Plaintiffs Deposition at 78:9-10).
Similarly, Thompson allegedly said, “You think you are above the law.

.

.

.

We are not in Morocco.

If you want to be free, go back to Morocco.... You Moors are trying to overthrow the government.
You are black just like everyone else.” (Id. at 79:21-80:3). However, Plaintiff never reported
these alleged statements with RWJ Human Resources. (SUMF at

¶

78). Plaintiff also conceded

that Schoolfield never claimed that his religious beliefs were the reason why he was not promoted.
(Plaintiffs Deposition at 77:8-19).
Tn October 2014, Plaintiff again applied for a Supervisor position. (Id. at

¶

31; ECF No.

132-4 at 128, “October 2014 Application”). After receiving his application, RWJ decided to give
Plaintiff a “trial run,” wherein Plaintiff would serve as Acting Supervisor C.S.P. for two weeks in
November, during which his performance would be assessed. (Id. at

¶ 34).

After completing his

trial run, Plaintiff spoke with Roger Turner, who had replaced Thompson as Plaintiffs Supervisor.
(Id. at

¶J

33, 35). Turner explained to Plaintiff that he needed additional training to address his

interpersonal skills; he also acknowledged that there was some “political stuff’ going on at RWJ,
mainly that new staffing decisions were being made. (Id. at

¶ 35).

During this timeframe, RWJ was going through a change in C.S.P. Directorship. Then
Acting C.S.P. Director, Katherine Johnston, would be leaving her position later that year and
would be replaced by Anita Cassell, who was hired on November 14, 2014. (itt. at ¶j 33, 36-37).

4

Cassell considered Plaintiff’s Supervisor application, observed his performance, interviewed his
supervisors, and reviewed his employment file. (Id. at

¶

39).

Based on her review, Cassell

concluded that Plaintiff was not fit for the Supervisor position, citing, among other things, his prior
performance issues and inability to hold himself accountable. (Id. at

¶

40). This sentiment was

also shared by Johnston, who, in a December 4, 2014 email, identified several issues with
Plaintiffs qualifications. Specifically, Johnston noted that Plaintiff: (1) lacked interpersonal skills;
(2) failed to schedule staffing lunches, causing most staff to leave at the same time; (3) is often the
first to leave work and leaves his shift early, with no supervisor present; (4) does not submit
accurate shift reports; and (5) continued to improperly sterilize medical instruments and prepare
medical trays. (ECF No. 132-4 at 135-36, “Johnston Email”).
In December 2014, Plaintiff recorded a conversation between him and Johnston, regarding
his Supervisor application. (ECF No. 132-4 at 143-46, “December 2014 Conversation”). In this
conversation, Johnston notified Plaintiff that another individual had been hired for the Supervisor
position. (Id. at 3:2). When asked why he did not receive the promotion, Johnston explained,
“[y]ou still were not taking full ownership of the shift and assignment.” (Id. at 3:4-5). She also
noted that Plaintiff continued to exhibit poor work performance. (Id. at 3:7-17). In response,
Plaintiff told Johnston that he intended to file a grievance. (Id. at 3:21-23).
On December 9, 2014, Pitman wrote to RWJ, regarding denial of Plaintiffs application.
(ECF No. 132-4 at 148, “December 2014 Letter”). In this letter, Pitman claims, “[Plaintift] told
me that he was promised a promotion by his supervisor. This never came to fruition and was
offered to someone else.” (Id). She also claimed that “it was agreed that [Plaintiff] would receive
specialized training so he would be eligible for the next promotion.” (Id.). A formal grievance was

5

tiled three days later, December 12, 2014. (ECF No. 132-4 at 150, “Grievance Form”). The
grievance alleges:
[Plaintiff] [was] continually passed over for promotion despite being senior most
employee applied for job.
[Plaintiff] was previously passed over again leading to a training period which
never happened. He feels this is discrimination.
—

(Id.).
A grievance meeting was held on January 28, 2015, which was attended by Plaintiff and
his Union Representative, as well as Cassell and Rosemary Bohlman, a RWJ Human Resources
Manager. (SUMF at ¶ 48). Both the Union and Bohlman explained to Plaintiff that the Supervisor
position is not a Union position, so the CBA does not apply. (Id. at

¶

49). In addition, Cassell

explained to Plaintiff that it was her decision not to promote him. (Id. at ¶ 38; Plaintiffs Deposition
at 3 14:22-25). She expressed to Plaintiff many of the concerns discussed above, regarding his
failure to exhibit leadership and accountability. (Id. at ¶j 50, 53). Specifically, Cassell noted that,
under Plaintiff’s supervision, shifts did not run smoothly and there continued to be issues with the
cleanliness of medical instruments. (Id.). At no point did Cassell ever refer to Plaintiffs religious
beliefs as a basis for denying his promotion. (Plaintiffs Deposition at 314:19-20). Tn fact, at
deposition, Plaintiff conceded that he did not believe that Cassell even knew his religion. (Id.).
Since this meeting, Plaintiff has indicated that he is no longer interested in the Supervisor
position and has not submitted any promotion applications since October 2014. (SUMF at

¶JJ 54-

55).
This being said, Plaintiff now claims that four individuals
Lindsay Evener, and Marge Agudelo

—

—

Henry Kathion, Edwin Ani,

were promoted as Supervisor over him, based on RWJ’s

alleged hostility towards his faith. (Id. at

¶

63; ECF No. 132-4 at 152-62, “Plaintiffs Answer to

6

Interrogatories”). Kathion, who Plaintiff claims is Catholic, was promoted to Supervisor in 2010.
(Id. at

¶ 67).

According to Plaintiff, although he did not apply for the position in 2010, he should

have been considered for the position, given his seniority. (Plaintiff’s Deposition at 171:6-173:3).
Ani.

Plaintiff also claims is Catholic, had more seniority than Plaintiff and served as a

temporary Supervisor in early 2013, but was never hired as a full-time Supervisor. (Id. at 179:10180:7; 219:21-220:5). Apparently, with regards to Ani, Plaintiff takes exception to the fact that
he was given the opportunity to serve, albeit temporarily, as a Supervisor, during the same
timeframe that he submitted his Supervisor application. (Id. at 186:13-23). Evener, who is also
alleged to be Catholic, was promoted to Supervisor in March 2014. (SUMF at

¶ 71).

According

to Plaintiff, he had more seniority and experience than Evener, which he also takes issue with.
(Plaintiff’s Deposition at 243:15-244:25). However, Plaintiff conceded that he was never told that
his religious beliefs were the reason why he did not get the promotion. (Id. at 243:12-17). Finally,
although Plaintiff included Agudelo in his interrogatories, he admitted that he did not apply for
her position and that her position had “[n]othing to do with” him. (Id. at 249:5-25).
On January 19, 2015, Plaintiff filed a Charge of Discrimination with the New Jersey
Division on Civil Rights and Equal Employment Opportunity Commission (“EEOC”) against
RWJ, alleging discrimination based on religion and “political repression.” (ECF No. 132-4 at 22,
“Charge of Discrimination”). This charge was based on RWJ’s decision not to promote Plaintiff
to Supervisor in December 2014. (Id.). Less than a month later, February 9, 2015, the EEOC
mailed a Dismissal and Notice of Rights to Plaintiff. (ECF No. 132-4 at 24, “Dismissal and Notice
of Rights”). In the letter, the EEOC explained that it was closing Plaintiff’s charge since, “[biased
upon its investigation, the EEOC is unable to conclude that the information obtained establishes
violations of the statutes.” (Id.).

7

Plaintiffs present cause of action is based on RWJ’s denial of his Supervisor Applications
in 2012 and 2014.
LEGAL STANDARD

Summary judgment is appropriate under Federal Rule of Civil Procedure 5 6(c) when the
moving party demonstrates that there is no genuine issue of material fact and the evidence
establishes the moving party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a

verdict for the non-movant. and it is material if. under the substantive law, it would affect the
outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In considering a
motion for summary judgment, a district court may not make credibility determinations or engage
in any weighing of the evidence; instead, the non-moving party’s evidence “is to be believed and

all justifiable inferences are to be drawn in his favor.” A’Iarino v. Indus. (‘rating Co., 358 F.3d 241,
247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey
Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations.. and pleadings
.

are insufficient to repel summary judgment.” Schoch v. First Fid. Bancorp., 912 F.2d 654, 657
(3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial”).

8

Moreover, only disputes over facts that might affect the outcome of the lawsuit under
governing law will preclude the entry of summary judgment. Anderson, 477 U.S. at 247-48. If a
court determines, “after drawing all inferences in favor of [the non-moving party], and making all
credibility determinations in his favor.. that no reasonable jury could find for him, summary
.

judgment is appropriate.” Alevras v. Tacopina. 226 F. App’x 222. 227 (3d Cir. 2007).
Although pro se pleadings are ‘liberally construed” and “held to less stringent standards
than formal pleadings drafted by lawyers,” Erickson v. Pardus, 551 U.S. 89, 94 (2007) (internal
quotation marks and citation omitted), “a pro se plaintiff is not exempt from his burden of
providing some affirmative evidence, i.e. not just mere allegations, to establish a prima facie case,
and to show that there is a genuine dispute for trial.” Niblack v. Murray, No. 12-69 10, 2016 U.S.
Dist. LEXIS 99325, at *7 (D.N.J. July 29,2016) (citing Barnett v. N.J Transit Corp., 573 F. App’x
239, 243 (3d Cir. 2014)).
ANALYSIS

1. Title VII Statute ofLimitations

As an initial matter, RWJ contends that only the 2014 promotion application is subject to
the Court’s review, since all other allegations are barred by Title Vil’s three hundred day time
limit. The Court agrees.
It is well-settled that a plaintiff asserting claims under Title VII must first exhaust all
administrative remedies, before bringing a Title VII suit. See Burgh v. Borough Council of
Montrose, 251 F.3d 465, 470 (3d Cir. 2001); Robinson v. Dalton, 107 F.3d 1018, 1020 (3d Cir.
1997). In addition, a plaintiff must file his Title VII complaint with the EEOC within three hundred
days after the alleged unlawful employment practice occurred. Nat’l R.R. Passenger Corp. v.
A’forgan, 536 U.S. 101, 109 (2002) (citing 42 U.S.C.

9

§ 2000e-5(e)(1)). “Strict adherence” to Title

Vii’s timely filing requirements “is the best guarantee of evenhanded administration of the law.”
Id. at 108 (quoting Mohasco Corp. v. Silver, 447 U.s. 807, 826 (1980)).
Here, there is no evidence that Plaintiff ever filed a complaint with the EEOC, regarding
the 2012 promotion denial, nor does Plaintiff claim to have done so. As such, Plaintiff’s claims
are dismissed as time-barred with respect to RWJ’s alleged failure to promote Plaintiff as
Supervisor in 2012.

Therefore, the Court limits its review to allegations arising from the 2014

promotion application, which complied with the administrative requirements of 42 U.S.C.

§

2000e-5(e).

2. 2014 Promotion Application
Plaintiff argues that RWJ refused to promote him to Supervisor, due to his religious beliefs,
contrary to Title VII.

When, as here, there is no explicit discrimination alleged, generally the

Court should analyze the religious discrimination claims under the three-step burden shifting
framework set forth in McDonnell Douglas Corp.

V.

Green, 411 U.S. 792 (1973). See Bergen

Commercial Bank v. Sisler. 723 A.2d 944, 954 (N.J. 1999).

“[TJhe entire purpose of the

McDonnell Douglas prima facie case is to compensate for the fact that direct evidence of
intentional discrimination is hard to come by.” Price Waterhouse v. Hopkins, 490 U.S. 228, 272
(1989) (O’Connor, J., concurring).
At step one of the McDonnell Douglas burden-shifting analysis, the plaintiff bears the
initial burden of establishing a prima facie case of discrimination. See McDonnell Douglas, 411
U.S. at 802; see also Victor v. State, 4 A.3d 126, 141 (N.J. 2010) (“the first step in that analysis
requires plaintiff to demonstrate that he or she can meet each of the elements of the prima facie
case”). Here, the plaintiff’s burden is rather modest. Id, 1-lowever, the elements of the prima facie
case vary based on the form of discrimination alleged. Id.

10

At step two, if the plaintiff establishes a prima facie case, “the burden shifts to the employer
to articulate a legitimate, non-discriminatory reason for the adverse employment action.” Stouch
v. Twp. ofIrvington, 354 F. App’x 660, 666 (3d Cir. 2009). “This burden is ‘relatively light’ and

is satisfied if the employer provides evidence, which, if true, would permit a conclusion that it took
the adverse employment action for a non-discriminatory reason.” Burton v. Telejiex Inc., 707 F.3d
417, 426 (3d Cir. 2013). However, at this stage, the employer does not have to prove that the
“articulated reason actually motivated the action;” rather, “[t]he proffered reason need only raise
a genuine issue of fact as to whether the employer acted impermissibly.” Shellenberger v. Summit
Bancorp, 318 F.3d 183, 189 (3d Cir. 2003).
Finally, at step three, if the employer articulates a non-discriminatory basis for the adverse
employment action, the burden shifts back to the plaintiff “to provide evidence from which a
factfinder could reasonably infer that the employer’s proffered justification is merely a pretext for
discrimination.” Burton, 707 F.3d at 426. “To make a showing of pretext, ‘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.” Id. at 427 (quoting Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994)). As
such, to survive summary judgment, the plaintiff must either “present sufficient evidence to
meaningfully throw into question” the employer’s proffered reasons or “come forward with
sufficient evidence from which a factfinder could reasonably conclude that an illegitimate factor
more likely than not was a motivating or determinative cause of the adverse employment decision.”
Fuentes, 32 F.3d at 765.

11

Against this legal framework, the Court applies the McDonnell Douglas burden shifting
analysis to Plaintiffs religious discrimination claim.
At step one, it is Plaintiffs initial burden to establish a prima facie case of religious
discrimination. ‘Title VII of the 1964 Civil Rights Act prohibits employers from discharging or
disciplining an employee based on his or her religion.” Webb v. City of Philadelphia, 562 F.3d
256, 259 (3d Cir. 2009). The Third Circuit recognizes two theories of religious discrimination:
“disparate treatment,” which is at issue here, and “failure to accommodate.” Abramson v. William
Paterson College, 260 F.3d 265, 281 (3d Cir. 2001) (citing Chalmers v. Tulon Co. of Richmond,
101 F.3d 1012, 1017(4thCir. 1996); Mann v. Frank, 7F.3d 1365, 1368-70 (8thCir. 1993)). Under
the disparate treatment theory of religious discrimination, Plaintiff must establish that he: “(1) is a
member of a protected class, (2) was qualified and rejected for the position she sought, and (3)
nonmembers of the protected class were treated more favorably.” Id. at 281-82 (citing Goosby v.
Johnson & Johnson Med., Inc., 228 F.3d 313, 318-19 (3d Cir. 2000)).
Here, RWJ contends that Plaintiff fails to establish a prima facie religious discrimination
claim, since the record demonstrates that he was not qualified for the Supervisor provision. Citing
Plaintiffs numerous Employee Counseling Notices and poor employment evaluations, RWJ
argues that the Plaintiff lacked the qualifications to serve as a Supervisor. As best the Court can
tell, Plaintiff contends that he was entitled to the position, given his seniority and work experience.
For purposes of this analysis, the record sufficiently demonstrates, at step one, that Plaintiff was
not promoted due to his religious beliefs.
At step two, it is RWJ’s burden to articulate a legitimate basis for denying Plaintiffs
promotion application. Here, RWJ contends that Plaintiffs application was denied due to his
history of poor performance, not his religious beliefs. It is well-established that poor performance

12

and failure to meet an employer’s expectations are legitimate non-discriminatory business
decisions. Hunter v. Rowan Univ., 299 F. App’x 190, 195 (3d Cir. 2008). Similarly, courts have
acknowledged that an employer’s refusal to promote an employee, due to his or her lack of
leadership and “people skills,” is a legitimate nondiscriminatory reason. See Sampath v.
Concurrent Techs. Corp., No. 03-264, 2008 U.S. Dist. L.EXIS. at *10708 (W.D. Pa. Mar. 31,

2008) (citing Fuentes. 32 F.3d at 766). According to RWJ, despite numerous opportunities,
Plaintiff has failed to demonstrate an ability to take accountability for his mistakes and is unable
to oversee staff employees. In addition, when given the opportunity to briefly serve as Temporary
Supervisor, Plaintiff exhibited a lack of interpersonal and organizational skills, and continued to
fail to properly prepare and sterilize medical equipment.
Finally, at step three, the burden shifts back to Plaintiff to demonstrate that poor
performance was a pretext for religious discrimination. Here, the record is bereft of any competent
evidence that establishes that Plaintiff’s religious beliefs were, if any, a factor in RWJ’s decision
to not promote him to supervisor. In fact, in his own deposition, Plaintiff conceded that Cassell,
who was the individual responsible for denying his application, did even know what religion he
practiced. Therefore, since no reasonable trier of fact would find that RWJ refused to promote
Plaintiff due to his religious beliefs, the Court grants RWJ’s Motion for Summary Judgment
dismissal of the Complaint.
3. Plaintiff’s Arguments
The crux of Plaintiffs other arguments is that RWJ’s Motion for Summary Judgment
should be denied since Cassell lacked personal knowledge as to whether Plaintiff was fit to be
promoted as C.S.P. supervisor.

13

Having reviewed Cassell’s deposition testimony and certification, it is clear that her
statements were based on her personal knowledge of the matter, which were gained through her
own personal observations, discussions with Plaintiffs co-workers and supervisors, and review of
Plaintiff’s employment records.

This is more than sufficient to establish Cassell’s personal

knowledge in this case and the reasons for not promoting him to supervisor. See, e.g., Hite v.
Peters, No. 07-4492, 2010 U.S. Dist. LEXIS 65121, at *34..35 (D.N.J. June 30, 2010) (citing Ryder
v. Westinghouse Elec. Corp., 128 F.3d 128, 134 (3d Cir. 1997)).
At oral argument, Plaintiff also seemed to argue that because RWJ only provided excerpts
of the deposition testimony of Cassell, its Summary Judgment motion should be denied. However,
Plaintiff cites no authority or case-law to support this notion, nor has the Court’s own research
found any merit to this argument. The Court only adds that “[a] deposition or an extract therefrom
is authenticated in a motion for summary judgment when it identifies the names of the deponent
and the action and includes the reporter’s certification that the deposition is a true record of the
testimony of the deponent.” Orr v. Bank ofAin., 285 F.3d 764, 776 (9th Cir. 2002) (citing Fed. R.
Evid. 901(b); Fed. R. Civ. p. 56(e) & 30(0(1)). Here, the deposition excerpts of Cassell offered
by RWJ are accompanied with a cover page and the reporter’s certification, which identify the
document as the deposition of Anita Cassell. (ECF No 132-4 at 2, “Cassell Deposition”). In
addition, there is a certification from counsel, certifying that the document “is a true and correct
copy of relevant excerpts from the deposition transcript of Anita Cassell.” (ECF No. 132-2,
“Boshak Certification” at

¶

5). As such, RWJ’s deposition excerpts are properly authenticated

consistent with Federal Rule of Evidence 901(a).

14

_______

In sum, Plaintiff’s arguments fail to provide any legitimate basis for denying RWJ’s
Motion for Summary Judgment; as such, for the reasons discussed above, RWJ’s motion is
granted.
CONCLUSION

Having carefully reviewed and taken into consideration the submissions of the parties, as
well as the arguments and exhibits therein presented, and for good cause shown, and for all of the
foregoing reasons,
IT IS on this

day of9i—e

,2018,

ORDERED that Defendant’s Motion for Summary Judgment is GRANTED; and it is

further
ORDERED that Plaintiff’s “Affidavit in support of Summary Judgment as a Matter of
Law” (ECF Nos. 128, 133) is DENIED; and it is further
ORDERED that the clerk of the court is directed is to close the case.

PETER G. SHERIDAN, U.S.D.J.

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