HETZEL v. MAYBUS et al

Filing 49

MEMORANDUM and ORDER granting in part 38 Motion for Summary Judgment as to Count III. Signed by Judge Peter G. Sheridan on 11/19/2018. (km)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW JERSEY

Jill Hetzel,

Civil Action No.
3:15-cv-7271 (PGS) (TJB)
Plaintiff,
MEMORANDUM
AND ORDER

v.
Richard V. Spencer, Secretary
of the Navy,
Defendant.

SHERIDAN, U.S.D.J.
This matter comes before the Court on a motion by defendant for summary judgment
pursuant to Fed. R. Civ. Proc. 56(c). This is an employment discrimination case in which plaintiff
alleges sex and pregnancy discrimination, pursuant to Title VII, 42 U.S.C. 2000e-16; 2000e-5;
disability discrimination, pursuant to Title VII, 42 U.S.C. 2000e-16, 2000e-5; and hostile work
environment, pursuant to the Rehabilitation Act, 29 U.S.C. 791.
FACTUAL BACKGROUND
Plaintiff Jill Hetzel is a former civilian employee of the Department of the Navy in Colts

Neck, New Jersey. (Third Amended Complaint, ECF No. 16, at

¶

14). She worked as a Child

Youth Program Assistant in the infant room of the Child Development Center (“CDC”) until the
events underlying this action. (Declaration of Christopher Amore (“Amore Deci.”), Deposition of
Hetzel (“Hetzel Dep.”), at 15:23 to 16:4; 33:25 to 34:1). Her employment began in August 1998
and continued until her termination in August 2011. (Id., at 15:23 to 16:4).
In late 2009, long before the incident at issue here, plaintiffs supervisor, Michele Cavet,
discovered that she had been selling bootleg DVDs to her co-workers while at work. (Amore Deci.,

Ex. C). This conduct was found to be in violation of internal standards of conduct, which prohibit
soliciting sales at work for personal gain. (Id.). Cavet suspended plaintiff for the violation by letter
dated October 20, 2009. (Amore Deci., Ex. C). However, apart from this isolated incident, her
performance at work was generally satisfactory. (Declaration of Thomas DeNoia (“DeNoia
Dccl.”), Ex. E, Deposition of Mary Borree (“Borree Dep.”), at 23:17 to 24:1.
In March 2011, the CDC closed the infant room, and plaintiff was transferred to the pre
toddler room and was responsible for children between one and two years old. (Hetzel Dep., at
33:14 to 34:3). Plaintiff testified that her supervisor promised she would be reassigned to the infant
room when it reopened. (Hetzel Dep., at 38:21 to 39:4). Within the same time frame, plaintiff
became pregnant, and allegedly she advised Cavet. (DeNoia Deci., Ex. D, Deposition of Joan
Fantozzi (“Fantozzi Dep.”), 17:3 to 11). When the infant room reopened (April, 2011), plaintiff
asked to be reassigned to the infant room; but Cavet responded that pregnant women are no longer
being placed into that assignment. (Hetzel Dep., at 39:11 to 13; Denoia Deci., Ex. A, at 000013).
Defendant denies that such a policy existed. (Defendant’s Statement of Material Facts, at 5).
¶
Plaintiff began to suffer complications with her pregnancy and on April 28, 2011, was
diagnosed with a subchorionic hemorrhage. Dr. John Sutherland restricted her from working until
May 2,2011. (Amore Deci., Ex. D, at 000221). On that day, after reevaluating her, Dr. Sutherland
permitted plaintiff to work but “restrict[edj the amount of weight to be lifted by [her] to no more
than five pounds.” (Amore Deci., Ex. D, at 000222). Plaintiffs supervisor gave her the choice to
either work in another department in a position that did not require lifting for reduced pay, or
to
take unpaid leave. (Hetzel Dep., at 57:1 to 5). Plaintiff elected to work answering phones in the
ITT’ office for a reduced hourly wage. (Hetzel Dep., at 57:6 to 8).

Information Tickets and Travel office. (See Borree Dep., ex. MB-3, at 4).

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On May 20, 2011, Plaintiff obtained another doctor’s note stating she should retain a light
duty work schedule. (Amore Dccl., Ex. D, at 000223). Plaintiff testified that Mary Borree, her
supervisor at the ITT office, advised that she could not remain on light duty, and that she must
return to her original position, or use her family leave time or sick time. (Hetzel Dep., at 59:9 to
15).

On June 16, 2011, a doctor cleared plaintiff “to go back to work as of 6/17/11,” and stated
she would work “as before.” (Amore Deci., Ex D, at 000226). Pursuant to CDC policy, Dr. Karen
Stephenson, M.D., a Navy doctor, also examined plaintiff. She cleared plaintiff to return to full
duty; and recommended she be placed in the infant room because “it is less physical than the
pretoddler and toddler rooms.” (Amore Decl., Ex. D, at 000227). Plaintiff testified that Cavet,
upon reading the note, became annoyed and shouted, “Oh, come on, Jill. This is ridiculous. Get
out of my office... I’ll have to figure this out and make some phone calls.” (Hetzel Dep., at 61:17
.

to 24).
Emails obtained in discovery indicate Cavet immediately notified human resources about
the note. (Borree Dep., at 000154). An internal human resources email chain ensued; one noted
that plaintiff had “been asking for the infant room” and suggested that the doctor’s note seemed “a
bit manipulative.” (Id.). In another email that same day, a human resources employee, stated,
Cleared for duty is cleared for duty. I’m sure she went in there and
told them to put that because she knows the doctor/parent...
Either way based on this note schedule her where you need her
regardless of whether it is where she wants to go or not. If she gives
you another note with limitations we will go through this drill
again and take her out of the facility with the same pay cut. And if
she becomes disruptive in the workplace in the meantime we will
address it with disciplinary action.
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Please keep us posted.

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(Borree Dep., at 000153). Despite Dr. Stephenson’s invitation to call her “with any questions,”
(Amore Deci., Ex. D, at 000227), there is no evidence that anyone at human resources contacted
either Dr. Stephenson or plaintiff to clarify the note.
Cavet assigned Plaintiff to the pre-toddler room beginning in June 2011. (Hetzel Dep., at
63:1 to 12). Plaintiff admitted in her deposition that she was physically able to work in the rooms
for several age groups at the CDC, and that she was not opposed to her assignment in the pre
toddler room. (I-Ietzel Dep., at 76:1 to 10; 63:5 to 12). Plaintiff testified that during this time, some
discriminatory comments against her were made by coworkers. One comment was made by Cavet.
She stated “Oh come on Jill, don’t get all pregnancy crazy on me,” after plaintiff returned from a
restroom break. (Hetzel Dep., at 27:14 to 19).
Another allegedly discriminatory comment was made by coworker Dalia Ghosal.
Evidently, on August 4, 2011, while plaintiff was on duty, a child fell in the pre-toddler room, and
was bleeding. (Amore Deci., Ex. F, Hetzel Dccl., at 000075). Dalia Ghosal carried the child to a
changing table and treated the child’s lip with an ice pack. (Hetzel Dep., at 84:16 to 19; Ghosal
Dep., at 42:5 to 8). In a statement, Ghosal claimed plaintiff did not respond to the incident, and did
not assist in cleaning up the blood on the floor. (Amore Deci., Ex.

Q).

Plaintiff disputes Ghosal’ s characterization, contending that her job responsibilities require
that she remain with the other children during the incident, and call for a supervisor, as she did.
(Hetzel Dep., at 84:16 to 24). Moreover, the “Emergency Response Training” procedures require
that a Youth Program Assistant “call for a supervisor” when a child is injured. (Amore Decl., Ex.
H). Borree also admitted in her deposition that in such a situation it “would be a good practice”
for one caretaker to “take care of the child that’s injured and the other caregiver to watch the other
children.” (Borree Dep., at 19:6 to 10).

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A third discriminatory comment was made by coworker Marina Bartko. On July 27, 2011,
Marina Bartko, who was also pregnant and worked in the infant room, reported to supervisors that
plaintiff had been speaking negatively about her; stared at her while she was tending to children;
rolled her eyes at her; and gave her “nasty” looks. (Amore Deci., Ex. S, at 000209). Borree initiated
a “hostile work environment” investigation, and the investigation substantiated Bartko’s
allegations. (Borree Dep., at 48:9 to 13).
Overall, Plaintiff alleges that after submission of Dr. Stephenson’s memo on July 17, 2011,
the three negative comments were used as a pretext for discrimination against her. One of the June
17, 2011 emails specifically contemplated potential future disciplinary action. (See DeNoia Deci.,
Ex. E, at 000153).

In that email, a human resources employee instructed Borree to obtain “a

detailed statement” from Bartko and other caregivers and proposed, “Once the information is
gathered and reviewed, we can recommend the appropriate course of action.” (DeNoia Deci., Ex.
L, at 000168). In another email, it noted that Bartko may “resign as a result” of plaintiff’s alleged
conduct, and lamented that “[tjhis would, of course, provided Jill Hetzel with just the opportunity
she is looking for, i.e. to get a slot in the infant room.” DeNoia Deci., Ex. M, at 000165. During
the investigation, Borree testified that Cavet, who allegedly made the improper comments to
plaintiff, chose the employees to be interviewed, reviewed the tape of the incident, and provided
evidence to her. Borree Dep., at 20:3 to 4; 29:2 to 5; 30:21 to 25.
On August 30, 2011, after the investigation was complete, Borree issued a proposed
termination letter to plaintiff, which cited the following:
1) Unprofessional and/or disrespectful behavior in the workplace;
2) Inattention to duty based on testimony by Ghosal and that Plaintiff regularly refused
to perform her share of the work; and

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3) Failure to follow emergency response procedures.
(Amore Dccl., Ex. G, at 000013). The termination letter also cited to a prior seven-day suspension
in 2009. (Id.) On September 15, 2011, Richard Carison, the Regional Deputy Director of Morale,
Welfare, and Recreation, approved Borree’s proposed letter and issued a final termination letter to
Hetzel. (Amore Dccl., Ex I).
In January 2012, plaintiff filed an Equal Employment Opportunity complaint, alleging
disability discrimination based on her pregnancy. (Amore Deci., Ex J). In April, the EEO office
initiated an investigation, and on December 8, 2015, the Navy issued a final agency decision
finding no evidence of discrimination in connection with Plaintiff’s termination. (Balcher Decl.,
Ex. I).
On October 1, 2015, plaintiff filed a complaint commencing this action, (ECF No. 1), and
filed an amended complaint on April 27, 2016. (ECF No. 16). On August 4,2016, this Court issued
an order on defendant’s motion to dismiss (1) permitting plaintiff’s sex discrimination complaint
to proceed under Title VII, but not under the Rehabilitation Act; (2) permitting plaintiff’s hostile
work environment claim to proceed under Title VII but not under the Rehabilitation Act; (3)
permitting plaintiff’s disability discrimination claim to proceed under the Rehabilitation Act but
not under Title VII; and (4) dismissing plaintiff’s retaliation claim. (ECF No. 24). On May 17,
2018, defendant filed this motion for summary judgment. (ECF No. 38).
LEGAL ANALYSIS

Summary judgment is appropriate under Fed. R. Civ. P. 56(c) when the moving party
demonstrates that there is no genuine issue of material fact and the evidence establishes the moving
party’s entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23
(1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant,

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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 [her] favor.” Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting
Anderson, 477 U.S. at 255).
Once the moving party has satisfied its initial burden, the party opposing the motion must
establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey

Twp., 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment
cannot rest on mere allegations and instead must present actual evidence that creates a genuine
issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier
Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). “[U]nsupported allegations.

.

.

and pleadings

are insufficient to repel summary judgment.” Schoch v. First Fidelity Bancorp., 912 F.2d 654, 657
(3d Cir. 1990); see also Fed. R. Civ. P. 56(e) (requiring nonmoving party to “set forth specific
facts showing that there is a genuine issue for trial”). Moreover, only disputes over facts that might
affect the outcome of the lawsuit under governing law will preclude the entry of summary
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 [her] favor” that no
reasonable jury could find for [her], summary judgment is appropriate. Alevras v. Tacopina, 226
Fed. App’x. 222, 227 (3d Cir. 2007).
Discrimination claims must be analyzed according to the burden-shifting framework which
was set forth by the Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973),
and later clarified in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 (1981),

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and St. Mary’s Honor Center v. Hicks, 509 U.S. 502 (1993). See also Wishkin v. Potter, 476 F.3d
180, 185 (3d Cir. 2007) (noting that the “familiar” McDonnell Douglass analysis is “equally
applicable to discrimination claims under the Rehabilitation Act”). In the first of three steps, a
plaintiff must present sufficient evidence to support a prima facie case of discrimination. Hicks,
509 U.s. at 506. To establish such a prima facie case, the plaintiff must show that “(1) [she] belongs
to a protected class; (2) [she] was qualified for the position; (3) [she] was subject to an adverse
employment action

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.

.

;

and (4) under circumstances that raised an inference of discriminatory

action.” McDonnell Douglas, 411 U.S. at 802.
Adverse Employment Action
Regarding plaintiffs sex and pregnancy discrimination claims, defendant concedes that
she has established a prima facie case as to the first and second prongs, (Def. Brief, at 14), but
challenges the sufficiency of the evidence under the third prong

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an adverse employment action.

“The Third Circuit has defined an adverse employment action as an action that alters the
employee’s compensation, terms, conditions, or privileges of employment.” Cortes v. Univ. of
Med. & Dentistry ofNew Jersey, 391 F. Supp. 2d 298, 312 (D.N.J. 2005) (internal quotation marks
and citations omitted). However, “not everything that makes an employee unhappy qualifies as
[discrimination], for otherwise, minor and even trivial employment actions that an irritable, chipon-the-shoulder employee did not like would form the basis of a discrimination suit.” Robinson v.
City ofPittsburgh, 120 F.3d 1286, 1300 (3d Cir. 1997).
Plaintiffs assignment to the pre-toddler room was not adverse to her employment, a fact
plaintiff appears to concede. (See Plaintiffs Brief, at 12-13). No evidence suggests that plaintiffs
reassignment affected her compensation or her terms, conditions, or privileges of employment.
Plaintiffs termination was, however, plainly an adverse employment action. See Abramson v.

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William Paterson College of New Jersey, 260 F.3d 265, 288 (3d Cir. 2001) (recognizing that

termination “clearly” constitutes an adverse employment action).
Circumstances that Raise an Inference of Discrimination
At the summary judgment stage in a case alleging discriminatory termination, the fourth
prong of the McDonnell Douglas test requires that “under circumstances that raise an inference of
discriminatory action, the employer continued to seek out individuals with qualifications similar
to the plaintiff’s to fill the position.” Sarullo v. United States Postal Serv., 352 F.3d 789, 797 (3d
Cir. 2003). “The ‘central focus’ of the prima facie case ‘is always whether the employer is treating
some people less favorably than others because of their race, color, religion, sex, or national
origin.” Id. at 798 (quoting Pivirotto v. Innovative Sys., Inc., 181 F.3d 344, 352 (3d Cir. 1996)).
Evidence in the record supports plaintiffs claims that she was treated less favorably
because of her pregnancy. Plaintiff testified that a supervisor explicitly told her that no pregnant
women were to be assigned to the infant room. She also points to multiple statements from Cavet,
including her statement about plaintiff being “pregnancy crazy” and the hostile reaction to her
doctors’ notes. In addition, immediately after viewing the June 17 note, Cavet initiated a
conversation with human resources personnel
leading up to plaintiffs termination

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the same individuals who were in the discussion

which contemplated “disciplinary action.”

Moreover, although Bartko, who was also pregnant, was assigned to the infant room, there
is evidence indicating that defendant did not know of Bartko’s pregnancy while she was working
in the infant room. DeNoia Decl., Ex. H, Borree Decl., at 000061. Also, despite evidence that
Estelle Roman, another pregnant employee, purportedly provided occasional coverage in the infant
room, plaintiffs alleges she lost her permanent assignment in that room. See Amore Decl., Ex. B,
Plaintiffs Answers to Interrogatories, at question 17.

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Though plaintiff’s reassignment was not an adverse employment action, the alleged policy
against assigning pregnant women in the infant room; Cavet’s statement; and her and others’
actions and statements, and the chain of emails leading to plaintiffs termination set forth a prima
facie case that the circumstances surrounding plaintiffs termination raise an inference of
discrimination.
Employer’s Reason for Termination
At step two of the burden-shifting analysis, 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 Fed. 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. Teleflex 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).
Defendant has identified three nondiscriminatory reasons for terminating plaintiff: (1) her
failure to respond to the incident involving the injured child; (2) Plaintiffs workplace behavior;
and (3) Plaintiffs 2009 reprimand letter, which satisfy defendant’s limited burden at step two.
Mere Pretext
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

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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)). “To
discredit the employer’s proffered reason.

.

.

the plaintiff cannot simply show that the employer’s

decision was wrong or mistaken, since the factual dispute at issue is whether discriminatory animus
motivated the employer, not whether the employer is wise, shrewd, prudent, or competent.”
Fuentes v. Perskie, 32 F.3d 759, 765 (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.
The evidence, viewed in plaintiffs favor, throws defendant’s stated reason into question.
The 2009 reprimand letter long preceded plaintiffs termination. In her deposition, Borree declined
to cite this incident as a reason for the termination and failed to mention it when asked about
plaintiffs evaluations prior to her termination. (See Borree Dep., at 23:8 to 13). Borree also
admitted that although a major reason for termination was her inability “to protect and take care
of the children, specifically the incident in the room with the child getting hurt,” her investigation
was incomplete. She did not review the tape of the alleged incident and relied only upon the
statements of others.2 (Id. at 19:20 to 2 1:4; 23:8 to 13). Borree also admitted plaintiffs actions,
according to plaintiffs version of events, appeared to be a good practice. (Id. at 19:6 to 10).

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Plaintiff claims the surveillance video, relied upon by the CDC during the investigation, has been lost or
destroyed, which, she argues, warrants an adverse inference. Consistent with the appropriate summary
judgment standard, the Court shall view the facts in the light most favorable to plaintiff (the nonmoving
party) and shall address the applicability of an adverse inference pre-trial.
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Moreover, Borree prepared the email dismissing Dr. Stephenson’s note and contemplating
future disciplinary action if plaintiff “becomes disruptive in the workplace.” (DeNoia Decl., Ex.
F, at 0001 53). Viewing the email together with the alleged statements by plaintiffs’ supervisor
about pregnancy, the alleged policy against placing pregnant women in the infant room, the fact
that no women known to be pregnant were in fact assigned to the infant room, and Cavet’s
impatience with the complications relating to plaintiffs pregnancy all serve to undermine
defendant’s proffered reason for her termination and indicate that an illegitimate factor more likely
than not was a motivating or determinative cause of the adverse employment decision.
Disability Discrimination
Defendant contends plaintiff has not established disability discrimination. “Pregnancy,
alone does not constitute disability.” Ahern v. Eresearch Tech., Inc., 183 F. Supp. 3d 663, 668
(E.D. Pa. 2016); Brennan v. Nat. Telephone Directory Corp., 850 F. Supp. 331, 344 (E.D. Pa.
1994). Count Three lists plaintiffs pregnancy as the basis of her disability discrimination claim
and makes no reference to her subchorionic hemorrhage or any other alleged disability. Plaintiff
appears to concede that she cannot establish disability discrimination, having declined to argue
this point in her brief. The Court shall therefore grant summary judgment in favor of defendant on
Count Three of plaintiffs Third Amended Complaint.
Hostile Work Environment
To establish a hostile work environment claim a plaintiff must demonstrate: “(1) she
suffered intentional discrimination because of her [membership in a protected class]; (2) the
discrimination was severe or pervasive; (3) the discrimination detrimentally affected her; (4) it
would have detrimentally affected a reasonable person in like circumstances; and (5) a basis for
employer liability is present.” Jensen v. Potter, 435 F.3d 444,449 (3d Cir.2006), overruled in part

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on other grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Establishing

that a work environment was hostile requires a demonstration that “the workplace is permeated
with ‘discriminatory intimidation, ridicule, and insult,’ that is ‘sufficiently severe or pervasive to
alter the conditions of the victim’s employment and created an abusive working environment.”
Harris v. Forklfi’ Sys., Inc., 510 U.S. 17, 21(1993) (quoting Mentor Savings Bank v. Vinson, 477

U.S. 57, 65, 67 (1986)). “{T]he mere utterance of an epithet, joke, or inappropriate taunt that may
cause offense does not sufficiently affect the conditions of employment to implicate Title VII
liability.” Brown—Baumbach v. B & B Auto., Inc., 437 F. App’x 129, 133 (3d Cir.201 1) (quoting
Weston, 251 F.3d at 428).

Plaintiff’s allegations suggest the discriminatory actions were pervasive. There were (1)
several comments by Cavet in response to her doctors’ notes and another comment about her being
“pregnancy crazy;” (2) the Ghosal complaint where the child was injured appears to have been
??? found against her; and (2) the Bartko complaint about plaintiff’s nasty looks is very subjective,
and the email chain indicates the supervisors had a preconceived plan for her termination based on
her pregnancy. Together, these actions show the workplace was permeated with discriminatory
ridicule.

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ORDER

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

19th

day of November, 2018,

ORDERED that defendant’s motion for summary judgment (ECF No. 38), be and hereby
is granted in part; and it is further
ORDERED that Count III is dismissed.

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

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