BALLARD v. AT&T MOBILITY, INC. et al
MEMORANDUM OPINION filed. Signed by Judge Michael A. Shipp on 8/25/2017. (mps)
NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
AUG 2 5 2017
WILLIAM T. WACfilf~
TAYLOR M. BALLARD,
Civil Action No. 15-8808 (MAS) (LHG)
AT&T MOBILITY, INC., et al.,
SHIPP, District Judge
This matter comes before the Court on Defendants AT&T Mobility Services, LLC 1
("AT&T") and AT&T Corp.'s (collectively, "Defendants") Renewed Motion for Summary
Judgment. (ECF No. 23.) Plaintiff Taylor M. Ballard ("Plaintiff') filed opposition (ECF No. 25),
and Defendants replied (ECF No. 28). The Court has carefully considered the parties' submissions
and decides the motion without oral argument pursuant to Local Civil Rule 78.1. For the reasons
stated below, Defendants' Renewed Motion for Summary Judgment is GRANTED.
Defendants note that Plaintiff incorrectly pled AT&T Mobility Services, LLC as AT&T Mobility,
Inc. (Defs.' Statement of Undisputed Material Facts ("SUMF") 1, ECF No. 23-1.)
AT&T Employs Plaintiff at Freehold Raceway Mall
"AT&T Corp. has never hired or had any direct contractual relationship with [Plaintiff]."3
(Defs.' Statement of Undisputed Material Facts ("SUMF'') ir 4, ECF No. 23-1.) "AT&T Mobility,
a subsidiary of AT&T Corp., is a provider of advanced mobile services, next generation television,
high-speed Internet, and other technological solutions for individuals and businesses."4 (Id.
"In addition to its online business, AT&T Mobility operates through physical store locations
Local Civil Rule 56.l(a) permits a nonmoving party on summary judgment to provide "a
supplemental statement of disputed material facts." (Emphasis added). Here, in addition to a
responsive statement of disputed facts, Plaintiff has filed a Counter-Statement of Facts ("CSF").
(ECF No. 25.) In deciding this Motion, the Court adopts the approach taken in Mehr v. Atlantic
[T]he Local Rules do not contemplate a nonmoving party furnishing
its own statement of undisputed material facts. Indeed, aside from
not being contemplated by the local civil rules, such a document is
not necessary to defeat summary judgment, as Plaintiffl:] must only
show that some material fact is in dispute, and need not affirmatively
prove [her] case at this point. However, as Defendants have fully
responded to this "Counterstatement," and the Counterstatement ...
cites to portions of the record, the Court sees no reason not to rely
on the contents therein.
No. 12-4499, 2014 WL 4350546, at *3 n.3 (D.N.J. Sept. 2, 2014).
Plaintiff admits, stating that: "[she] was an employee and. is not believed to have had a written
contract [with AT&T]." (Pl.'s Resp. to Defs.' SUMF if 4, ECF No. 25.) The Court deems
Defendants' SUMF if 4 undisputed under Local Civil Rule 56.l(a).
For efficiency, the Court omits separate citations to Plaintiffs admissions to Defendants' SUMF
(PL 's Resp. to Defs.' SUMF) where Plaintiff plainly "admitted" without further elaboration.
Similarly, the Court omits citations to Defendants' Response to Plaintiffs CSF (Defs.' Resp. to
Pl.'s CSF, ECF No. 28-1) where Defendants admit to Plaintiffs allegation. Further, the Court
omits duplicative citation to both parties' statements of facts where the parties allege identical
throughout the country, including the Freehold Raceway Mall, [located] in Freehold, New Jersey."
2.) "In November 2013, AT&T Mobility hired Plaintiff ... to work as a Retail Sales
Consultant ('RSC') at [the] store [in] the Freehold Raceway Mall." (Id.
3.) "As an RSC,
[Plaintiff] was responsible for acquainting customers with the technology sold at the store,
educat[ing] customers about these products and services, and ultimately sell[ing] a certain amount
of AT&T products." (Id.
At the time, William Cortes was the store manager (the "Manager"),
while Alcadio Ortiz was an assistant manager (the "Assistant Manager") (collectively,
5; Defs.' Resp. to Pl.'s CSF ~ 2, ECF No. 28-1.)
AT&T' s Policies and Training5
"AT&T maintains a Code of Business Conduct [('Code')], by which all employees are
required to abide." 6 (Defs.' SUMP ~ 7.) AT&T' s Code "requires that employees 'treat each other
with respect and do[ es] not permit intimidation, discrimination, or harassment in the workplace."'
8.) The Code states, in relevant part:
When the actions of some cause others to feel intimidated, offended,
or to lose dignity, all of us suffer. We must treat each other
courteously and professionally. We insist on a positive work
environment and speak out if that goal is compromised by anyone.
Discrimination and all unlawful harassment (including sexual
harassment) in employment is not tolerated. We encourage success
It appears to the Court that some of Plaintiffs responses do not match up with Defendants'
SUMP. The Court, therefore, has attempted to construe Plaintiffs responses as accurately as
possible based on its review of the record, and cites to Plaintiffs responses by referring to the
paragraph number to which each response appears to be directed (as opposed to the paragraph
numbers actually indicated on Plaintiffs responses).
Plaintiff admits this was the company policy, but denies that "[Defendants'] conduct, procedures,
manner of discipline, and documentation reflect these stated policies." (PL' s Resp. to Defs.' SUMP
~ 7.) The Court, therefore, deems Defendants' SUMP ~ 7 undisputed under Local Civil Rule
56.l(a). See Barker v. Our Lady ofMount Carmel Sch., No. 12-4308, 2016 WL 4571388, at *1 n.1
(D.N.J. Sept. 1, 2016) (finding that where responsive statements "add additional facts but do not
contest the asserted proposition, or assert arguments and legal analysis, not facts," allegations are
based on our individual merits and abilities without regard to race,
color, religion, national origin, gender, sexual orientation, gender
identity, age, disability, marital status, citizenship status, military
status, or veteran status. We support and obey laws that prohibit
discrimination everywhere we do business.
(Id.) Moreover, AT&T' s "employees are advised of their rights and responsibilities in both
abiding by the Code and reporting any violation of the Code[,] and employees are provided
multiple avenues in which to report any conduct that violates AT&T' s ... policies, including the
opportunity to report a violation anonymously."
9.) The Code states, in relevant part:
We know our reporting rights and responsibilities. We report when
we observe a violation, or what reasonably appears to be a violation,
of the law, this Code, or Company policies and guidelines. We use
these reporting rights responsibly, without intending to harass others
or to report trivial matters. We do not knowingly and willfully make
false, fictitious statements or representations. We can raise questions
or concerns or make a report to our supervisors, any manager,
Human Resources, Corporate Compliance, Asset Protection,
Corporate Ethics, or the .Legal Department. If reporting to our
supervisors or the resources above is uncomfortable, those of us in
the U.S. can report to the AT&T Hotline, 1-888-871-2622. This
Hotline is for reporting suspected or actual violations of AT&T' s
Code or other company policies. In addition to the Hotline, those in
the U.S. may report HR related matters such as [Equal Employment
Opportunity ("EEO")], discrimination, and employee relations
(https://wwwtnwgrc.com/att/). Both the Hotline and the Web
Reporting Site provide a confidential and anonymous process for
reporting. Our employees outside the U.S. may contact Human
Resources or Asset Protection representatives directly,
(Id.) As with all of AT&T's employees, Plaintiff received training on the Code. 7 (Id.
addition to its general Code, "AT&T maintains a separate Equal Employment Opportunity ... and
Harassment Policy." (Id.
if 11.) The policy states:
Plaintiffs response to Defendants' SUMF states: "Denied as stated." (PL' s Resp. to Defs.' SUMF
~ 10.) Plaintiffs blanket denial without any citation to the record is contrary to the record. Indeed,
AT&T also strictly prohibits all forms of workplace harassment,
including sexual and racial harassment and harassment based on any
of the protected characteristics described above (race, color,
religion, national origin, age, sex, sexual orientation, gender
identity, disability, pregnancy, genetic information, marital status,
citizenship status, military status, veteran status, or any other
characteristics protected by federal, state, or local law). An
employee's actions, words, or behavior must not create an
intimidating, hostile, or offensive environment. Employees are not
permitted to ridicule, intimidate, threaten, demean, or bully other
employees, customers, vendor employees, or any other individuals
with whom they interact. Remarks, comments, jokes, slurs, images,
or gestures of an offensive nature will not be tolerated. 8
(Id.) AT&T requires that employees "report a violation of the EEO and Harassment Policies to a
supervisor, ... manager, Human Resources, directly to the AT&T Hotline ... or the AT&T Hotline
Web Reporting site."9 (Id.
if 12.) Moreover, AT&T maintains a non-retaliation policy, which
Any individual who suspects an EEO violation and makes a report
is acting responsibly in accordance with the EEO and Harassment
Policies. [AT&T] forbids retaliation against any person who makes
a report or who participates in the investigative process. Allegations
of retaliation will be investigated and appropriate action will be
taken. Any individual engaged in retaliatory behavior will be subject
to disciplinary action, which may include termination of
Plaintiff admits to being trained on the Code. (Petrella Deel., Ex. 1 ("Pl.'s Dep.") 126:8-16, ECF
No. 23-6.) The Court, therefore, deems Defendants' SUMP if 10 undisputed.
Plaintiff responds: "Yes, the document states that but again it was routinely violated. Thus, talk
about women's sexual features, bagging women including customers, were acts that flagrantly
violated the AT&T code, but were repeatedly allowed by AT&T management. Indeed, where a
complaint was made about such conduct, it would be the victim who was facing close scrutiny and
documentation of her activities." (Pl. 's Resp. to Defs.' SUMP if 11.) As Plaintiff does not dispute
the content of the policy, the Court deems Defendants' SUMF if 11 undisputed.
Plaintiff responds: "[a]gain, violation of the stated policies was the norm, and those who did
violate the policies ... would have their conduct defended." (Pl. 's Resp. to Defs.' SUMF if 12.)
As.Plaintiff does not dispute the content of the policy, the Court deems Defendants' SUMF if 12
employment. For any suspected retaliation concerns, contact the
AT&T Hotline immediately. 10
if 13.) Plaintiff "also received training on the EEO and Harassment Policy." (Id. if 14.) 11
Plaintiffs Attendance and Job Performance
As an RSC, Plaintiff"was expected to maintain a minimum number of monthly sales and
to improve the customers' experience in the store." 12 (Defs.' SUMF if 15.) "At the beginning of
[Plaintiffs] employment, [she] was given training 13 on the techniques that AT&T employs to
ensure customer satisfaction and employee success. [Plaintiff] was also provided ongoing training
and assistance during work from more experienced sales staff and management."
Plaintiff responds: "While the policy states this, it was routinely violated. When [Plaintiff]
presented her complaint to [the Assistant Manager] and [the Manager], each took no disciplinary
action against the offender, accepted or justified the offender's conduct, and repeatedly suggested
she quit." (Pl.'s Resp. to Defs.' SUMF if 13.) As Plaintiff does not dispute the content of the policy,
the Court deems Defendants' SUMF if 13 undisputed. See Barker, 2016 WL 4571388, at *1 n.l
(where responsive statements "add additional facts but do not contest the asserted proposition, or
assert arguments and legal analysis, not facts," allegations deemed undisputed).
Plaintiff "acknowledged receiving the materials, but again found that what was stated in those
materials did [not] reflect the reality of company policies, at least as implemented at [Plaintiffs]
store." (Pl.'s Resp. to Defs.' SUMF if 14.) As Plaintiff does not dispute the alleged fact, the Court
deems Defendants' SUMF if 14 undisputed.
Plaintiff responds: "[T]here were general sales goals but not requirements. Further, [Plaintiff]
state[ s] that adherence to them only became a serious concern after she made her first sexual
harassment complaint to [the Assistant Manager]." (Pl.'s Resp. to Defs.' SUMF ~ 15.) Plaintiff
fails to provide a citation to the record in support of this contention. The record, however, states
that Plaintiff was "required to maintain minimum sales results in a number of categories according
to the Monthly Action Plan goals set in the beginning of the month. In addition [Plaintiff was]
required to execute all the elements of the Retail Sales Experience in order to achieve those
targets." (Johannessen Deel., Ex. D, at ATT0061, ECF No. 23-4.) The Court, therefore, deems
Defendants' SUMF if 15 undisputed.
Defendants' SUMF if 16 states that Plaintiff"was given extensive training." Plaintiffs response
states: "The term extensive is denied." (Pl.'s Resp. to Defs.' SUMF if 16.) Because this fact is
immaterial to the present -Motion, the Court omits the term "extensive," and otherwise deems
Defendants' SUMF if 16 as undisputed.
Despite coaching and instruction, Plaintiff "failed to meet AT&T' s expectations with respect to
work performance." 14 (Id.-~ 17.) As a result, on April 21, 2014, "the management team at the
Freehold [Raceway Mall] store fonnalized its numerous discussions with [Plaintiff] regarding her
performance failures in a 'Counseling Plan' memorandum [(the 'Counseling Plan')]." (Id.
The Counseling Plan explained "a number of the performance issues [Plaintiff] was
having," and listed specific documented examples. 15 (Id.) For example, "on March 15, 2014,
[Plaintiff] was 'observed not exchanging names with [a] customer during [a] greet. [Plaintiff] also
failed to build value or mention any of [AT&T's] strategic products such as WHP, Digital Life,
and MIFI."' 16 (Id. ~ 19.) Additionally, on March 23, 2014, "[a]n observation was performed on
Plaintiff concedes that "there were small issues of performance," but further elaborates that
"these only [became] a significant concern after the managers became angry at her complaints."
(Pl.'s Resp. to Defs.' SUMP if 17.) Plaintiff fails to cite any affidavits or other documents in
support of her dispute as required under Local Civil Rule 56.l(a). In contrast, the record
demonstrates that AT&T management documented these performance issues on multiple
occasions prior to Plaintiffs first alleged complaint to the Assistant Manager in April 2014, or her
documented complaint to the Manager on May 2, 2014. (Johannessen Deel., Ex. D at ATT0060.)
The Court, therefore, deems Defendants' SUMF il 17 undisputed.
Plaintiffs response states: "The detailed supervision and documentation of even small
deviations occurred after her sexual harassment complaint. It can be contrasted with the company's
lack of concern over far larger and blatant violations of its sexual harassment policy." (Pl.' s Resp.
to Defs.' SUMF ~ 18.) Plaintiff fails to cite any affidavits or other documents in support of her
dispute as required under Local Civil Rule 56. l(a). In contrast, the record demonstrates that AT&T
management documented these performance issues on multiple occasions prior to Plaintiffs
alleged first complaint to the Assistant Manager in April 2014. (Johannessen Deel., Ex. D at
ATT0060.) Management observed violations on March 15, March 21, March 23, and March 28,
2014, as well as met with Plaintiff to review her performance and sales results on March 5, March
17, and March 31, 2014. (Id.) The Court, therefore, deems Defendants' SUMF ~ 18 undisputed.
Plaintiffs response states: "Acknowledged that was stated but see [Plaintiffs Response to
Defendants' SUMF ~ 18]." (Pl.'s Resp. to Defs.' SUMF ~ 19.) Because Plaintiffs Response to
Defendants' SUMF ~ 18 fails to cite any supporting evidence in the record as required under Local
Civil Rule 56.l(a), and appears to be contrary to the evidence, the Court deems Defendants' SUMF
~ 19 undisputed.
[Plaintiff], resulting in the fact that [she] failed to mention WHP or Digital Life. Following the
sale, [management and Plaintiff] reviewed the customer interaction and spoke about key misses
during the [i]nteraction." (Id.
20.) The Counseling Plan continued:
[Plaintiff is] required to maintain minimum sales results in a number
of categories according to the Monthly Action Plan goals set in the
beginning of the month. In addition, [Plaintiff is] requited to execute
on all of the elements of the Retail Sales Experience in order to
achieve those targets. [Plaintiff has] not demonstrated adequate
improvement in this area. [Plaintiff has] not met the expectation
with regard to this aspect of [her] position. The company has
reached a decision in the matter and [Plaintiff] will be placed on a
Counseling Notice. 17
if 21.) The Counseling Plan "set forth a specific plan for [Plaintiff] to follow in an attempt to
improve her performance[,] and set a three-month period for [Plaintiff] to attempt
improvement." 18 (Id. ~ 22.) In a six-month period, from the time that Plaintiff began work in
November 2013 through May 1, 2014, Plaintiff was documented as tardy for work on seven
separate occasions and once for an unexcused absence. 19 (Id.~~ 24-25.)
Plaintiffs response to Defendants' SUMP~ 20 and~ 21 states: "Plaintiff acknowledged that
document was sent but incorporated [her] response [in PL 's Resp. to Defs.' SUMP if 17 and~ 18]."
Because Plaintiffs Responses to Defendants' SUMP~ 17 and~ 18 fail to cite any supporting
evidence in the record as required under Local Civil Rule 56.l(a), and is contrary to the evidence
in the record, the Court deems Defendants'
Plaintiff fails to respond to Defendants' SUMP~ 22. The Court, therefore, deems Defendants'
SUMP~ 22 undisputed. Dale Grp. v. HCC Sur. Grp., No. 12-492, 2015 WL 1292510, at *1 n.2
(D.N.J. Mar. 20, 2015) (holding that facts set forth in movants' 56.1 statement "are undisputed and
accepted as true for purposes ofthis summary judgment motion" for failure of non-moving party
to comply with Rule "because it does not responsively address the paragraphs set forth" within the
The documented instances of tardiness and the unexcused absence are as follows: (11/19/2013)
one hour and forty-five minutes late; (12/09/2013) seven minutes late; (1/24/2014) one hour and
ten minutes late; (2/08/2014) six minutes late; (2/11/2014) forty-nine minutes late;
(3/01/2014) unexcused absence; (4/26/2014) twenty-two minutes late; (5/01/2014) nineteen
minutes late. Additionally, Plaintiffs response to Defendants' SUMP ~ 24 and~ 25 is: "AT&T
states its documents show the stated attendance." (Pl.'s Resp. to Defs.' SUMP~~ 24-25.) Plaintiff
Plaintiffs Complaint of Harassment to.Management
Richard Arruda ("Arruda") was hired and began work at the AT&T store in Freehold
Raceway Mall on April 7, 2014. (Defs.'
27.) According to a subsequent complaint by
Plaintiff, "Arruda made some comments to [Plaintiff] about her appearance."20 (Id:
if 28.) As a
result, on May 2, 2014, Plaintiff "approached her immediate supervisor, [the Manager], and
reported an incident involving Arruda." (Id.
if 29.) Plaintiff complained that "Arruda made some
comments about the size and heaviness of [Plaintiffs] breasts." (Id.) Plaintiff also "complained
that ... Arruda took unsolicited photo[graphs] of her using 'Google Glasses."' (Id.) Plaintiff
complained that she was dressed in her work uniform at the time of the photographs. 21 (Id.) In
does not deny that AT &T's SUMP if 24 and if 25 are true. (Id.) Moreover, Plaintiff does not identify
any material fact in dispute, and fails to cite any affidavits or other documents as required under
Local Civil Rule 56.l(a). The Court, therefore, deems Defendants' SUMP if 24 and if 25
Plaintiff's response to Defendants' SUMP ,-r 28 is: "Part of the description is correct, but some
attempts to lessen the severity of what was said and done." (Pl.'s Resp. to Defs.' SUMP if 28.)
Plaintiff does not identify any material facts she disputes, and fails to cite any affidavits or other
documents in support of her dispute as required under Local Civil Rule 56.1 (a). The Court,
therefore, deems Defendants' SUMP -,r 28 undisputed.
Plaintiffs response to Defendants' SUMP if 29 is: "Without any investigation or speaking with
witness [sic], [Manager] almost immediately determined that Arruda's version of the facts in
which where [sic] [Plaintiff] solicited [Arruda] to take her picture and discuss the alleged unequal
size of her breasts was more credible. This version became AT&T's position .... " (Pl.'s Resp. to
Defs.' SUMP ~ 29.) Plaintiff does not deny that Defendants' SUMP ~ 29 is true. The Court,
therefore, deems Defendants' SUMP~ 29 undisputed. See Barker, 2016 WL 4571388, at *l n.l
(finding that where responsive statements "add additional facts but do not contest the asserted
proposition, or assert arguments and legal analysis, not facts," allegations deemed undisputed).
addition, Plaintiff complained that, while she was taking a break, Arruda "lifted his arm to show
her the pornography that he was already playing." (Pl. 's CSF ~ 20, ECF No. 25.)
In response, the Manager "documented [Plaintiffs] complaint in AT&T' s Personnel
Development Tracking System ("PDTS") 22 :
Today [Plaintiff and the Manager] had a discussion regarding
[Arruda] who [Plaintiff] currently work[s] with at Freehold
Raceway [M]all. [Plaintiff] stated that [Arruda] has made some
inappropriate comments towards [her] and that [she] feel[ s]
uncomfortable. [The Manager] asked [Plaintiff] what [Arruda]
stated and [Plaintiff] said [Arruda] referenced [her] woman parts
during a conversation and that [Arruda] has conversations with
someone on the phone referencing [her]. [Plaintiff] also stated
[Arruda] has pictures. of [her] on his personal phone and he showed
them to [her]. [Plaintiff] lastly stated that [she has] witnessed him
watching inappropriate things on his watch on the sales floor.
[Plaintiff and the Manager] also discussed inappropriate comments
[that Plaintiff has] made in the back room and pictures [she has]
taken of other employees. [The Manager] explained to [Plaintiff]
that [he] will speak to [Arruda] regarding the situation and [asked if
Plaintiff] wanted to witness the conversation. [Plaintiff] stated [that
she did not] want to be in the room. [The Manager] told [Plaintiff
that he] would give [her] a quick [review] of the [conversation] and
ensure everyone is aware that harassment is a serious and terminable
30.) The day after Plaintiffs May 2, 2014 complaint, the Manager spoke to Arruda about
the incident. (Id.
if 32.) Plaintiff "walked in on [this] conversation ... but did not hear anything of
AT&T' s PDTS is a "management tool used to track human resources complaints and
performance issues contemporaneously." (Defs.' SUMF ~ 30.)
Plaintiffs response to Defendants' SUMF if 30 is: "The document is believed to state this, but
has multiple misleading or incorrect statements. For example, it is stated that harassment is a
serious and terminable offense. There is no indication of any appreciation of the seriousness of
such conduct in [AT&T's] actions." (Pl.'s Resp. to Defs.' SUMF ~ 30.) Plaintiff does not identify
any material facts she disputes, and fails to cite any affidavits or other documents in support of her
dispute as required under Local Civil Rule 56.l(a). The Court, therefore, deems Defendants'
SUMF ~ 30 undisputed.
the discussion."24 (Id.) The Manager "listened to Arruda's side of the story and instructed Arruda
as to AT&T' s policies and the consequences [Arruda] might face if he engaged in [harassing]
if 33.) The Manager documented his conversation with Arruda on May 3, 2014:
Today [the Manager and Arruda] had a discussion regarding a
previous conversation [the Manager] had with [Plaintiff] where she
felt uncomfortable with some comments [Arruda] made towards
her. [Plaintiff] stated [Arruda] had pictures of her on [Arruda's]
smart watch and [Arruda] stated [Plaintiff] was aware of them and
posed for them because [Arruda] was explaining what [his] watch
can do. [Plaintiff] stated [Arruda] would have conversation[ s] about
her on the phone when she walked in the room and [Arruda] stated
[he did] this joking around because [Plaintiff] had made comments
to other staff members about the fact that [Plaintiff] thinks "[Arruda]
want[s] her." [Plaintiff] also stated that she witness[ed] [Arruda]
watching inappropriate stuff on [his] watch and [Arruda] stated that
[he] never showed her anything on [his] watch that -was
inappropriate but that another [RSC] asked [him] a question
regarding what . . . can [be] watch[ ed] on the smart watch. [The
Manager and Arruda] reviewed the work place conduct ... to ensure
that [Arruda is] aware of how we should treat each other in the
workplace[,] and [Arruda] understand[ s] that [he] need[ s] to act
appropriate[ly] at all times[,] and if [he] should ever feel
uncomfortable about anything [he] should contact [his] management
Plaintiff denies "that [the Manager] had investigated the incident and reprimanded Arruda.
Instead, [Plaintiff] state[ s] the two were laughing after the meeting, no discipline was imposed,
and [Arruda's] version of what occurred was accepted with little investigation." (Pl.'s Resp. to
Defs.' SUMF ~ 32.) Plaintiff further elaborates that, "[w]hile little investigation was done
regarding the sexual harassment, [the Manager] began a detailed endeavor to document any
deviation from policy by [Plaintiff] such as being [five] minutes late." (Id.) The Court, therefore,
deems Defendants' SUMF if 32 undisputed. See Barker, 2016 WL 4571388, at *l n.l (finding that
where responsive statements "add additional facts but do not contest the asserted proposition,"
allegations deemed undisputed).
Plaintiff"admit[s] that this was the action taken," but further elaborates that this action "involved
no discipline of the offender and general acceptance of his version of events." (Pl. 's Resp. to Defs.'
SUMF ~ 33.) Plaintiffs response further states that "the conclusion that [Plaintiff] solicited
pictures and comments about her body, and tolerated pornography, reflected the inherent bias of
the AT&T investigation." (Id.) As Plaintiff does not dispute Defendants' allegation, the Court
deems Defendants' SUMF ~ 33 undisputed.
(Id.) After Plaintiff made het complaint on May 2, 2014, Plaintiff testified that "she and Arruda
'completely stayed away from each other. "'26 (Id.
if 34.) In addition to Plaintiffs report to the
Manager on May 2, 2014, a week later on May 9, 2014, an individual made an anonymous report
on AT&T's EEO Hotline regarding the incident with Arruda. (Id.
if 35.) The anonymous caller
alleged "that a male [RSC] had made inappropriate sexual comments to a female [RSC], had taken
an unauthorized picture of the same female RSC and . . . accessed and showed the female RSC
porn." (Id.) Although the Manager had previously investigated the incident with Arruda, AT&T's
EEO office conducted an investigation in conjunction with Human Resources. 27 (Id.
if 36.) Over a
period of one week, the EEO office interviewed several individuals about the incident with Arruda.
if 37.) Consistent with his prior report, the Manager explained to the EEO investigator that:
[The Manager] spoke with ... Arruda on May 3, 2014, who stated
that [Plaintiff] was in the back office with other employees and
[Plaintiff] commented on how her breast[ s] were looking that day.
According to [the] Manager . . . , Arruda stated [that] everyone
commented back to her and so did [Arruda] .... Arruda stated that
he was explaining his smart watch and that [Plaintiff] asked him to
take a picture of her. [The] Manager ... stated that ... Arruda denied
showing [Plaintiff] an inappropriate video on the sales floor . . . .
[The] Manager ... stated [that] Arruda [claimed] another employee
asked if the watch can view inappropriate videos and [Arruda]
replied that he believed [the watch] could. [The] Manager ... also
stated that . . . Arruda is aware that [Plaintiff] has told other
employees that she feels [Arruda] wants her. [The] Manager ... said
he documented his discussion with ... Arruda in PDTS on [May 3,
2014], and reviewed the Work Place Conduct document with
[Arruda] to make sute he is aware of how to treat others in the
workplace and to act appropriately at all times.
Plaintiff qualifies this assertion, stating that Defendants' SUMF if 34 "is incomplete. Multiple
employees talked about her and whether she had been bagged by Arruda. While she had observed
talk about other women, following the incident she became the target." (Pl.'s Resp. to Defs.'
SUMF if 34.)
Plaintiff responds that "she was not informed of any follow-up on the AT&T investigation."
(Pl.'s Resp. to Defs.' SUMF if 36.) Plaintiff does not deny that Defendants' SUMF if 36 is true.
The Court, therefore, deems Defendants' SUMF ir 36 undisputed.
(Id.) AT&T's EEO office could not substantiate Plaintiffs accusations, yet it recommended that
the store's district manager, Robert Ross, conduct "two meetings, one with [m]anagement and one
with non-[m]anagement, in order to lay out expectations and re-review appropriate
conduct/communications in the workplace, both by [m]anagement [and] non-[m]anagement."
38.) Plaintiff also testified that 'she had experienced one additional situation while working
at AT&T, which involved the Assistant Manager contacting her on a dating website; however,
Plaintiff admitted that she never complained to anyone about that incident and the incident did not
reoccur. 28 (Id.~ 39.)
Events After Plaintiffs Complaint to Management
Plaintiff attended work only three times after her complaint to the Manager on May 2,
2014. 29 (Id.~ 42.) Specifically, from May 3 to May 19, 2014 (the date Plaintiff was terminated),
Plaintiffs attendance record was as follows:
Plaintiff appears to not respond to Defendants' SUMF ~ 37, if 38, and~ 39. The Court, however,
deems Plaintiffs Response if 36 as a response to Defendants' SUMF ~ 37, ~ 38, ~ 39, and~ 40.
Accordingly, Plaintiff responds that "the statement does not reference the first complaint to [the
Assistant Manager]. Additionally[,] management was aware of repeated violations of the
company's sexual harassment policies with the [Manager] and [the Assistant Manager] having
observed violations. They would not need to be notified about what they already knew." (Pl.'s
Resp. to Defs.' SUMF ~~ 37-40.) Nonetheless, Plaintiff does not appear to dispute Defendants'
·allegations, and the Court, therefore, deems Defendants' SUMF ~ 37, if 38, ~ 39, and if 40
Defendants' SUMF ~ 42 incorrectly states that Plaintiff worked only two times after her
complaint on May 2, 2014. Plaintiffs time card, however, demonstrates that she worked three
times. (Johannessen Deel., Ex. I, at ATT0155.)
Defendants' SUMF ~ 42 incorrectly states that Plaintiff was not scheduled to work on May 3,
2014, but Plaintiffs timecard demonstrates that Plaintiff did in fact work that day. (Id.)
31-120 minutes tardy
16-30 minutes tardy
Punched in for 5 minutes
(Id.) Plaintiff claims that she did not attend work because she was ''uncomfortable working in that
environment." (Id. if 43; Pl.'s Dep. 184:2-5.) Plaintiff, however, testified that she did not complain
to anyone about her discomfort. 32 (Defs.' SUMF if 43; Pl.'s Dep. 184:6-23.) In-addition, Plaintiff
had no contact with Arruda on the three days that she did go to work after her complaint. (Defs.'
On May 6, 2014, the Manager and the Assistant Manager met with Plaintiff to discuss
Plaintiffs sales goals, as part of her ongoing Counseling Notice action plan from April 21, 2014.
(Defs.' SUMF if 45; Pl.'s Dep. 204:2-205:8.) On May 13, 2014, Plaintiff "came into work before
Plaintiff states that she "has disputed limited amounts of the chronology of her work and
particularly notes that attendance only became a problem after the sexual harassment complaint."
(Pl.'s Resp. to Defs.' SUMF ir 42.) Plaintiff does not deny that Defendants' SUMF ir 42 is true.
The Court, therefore, deems Defendants' SUMF if 42 undisputed.
Plaintiff concedes that "the deposition excerpts are correct." Plaintiff, however, further
elaborates that "[the Assistant Manager and the Manager] observed violations of the company
policies on a regular basis, and took no action after receiving [Plaintiffs] complaint. Management
was fully aware of the environment but had determined to do nothing and [Plaintiff] was absent
[sic] that company policies were being violated, she was highly uncomfortable in the environment,
but nothing could be done about that." (Pl.'s Resp. to Defs.' SUMF il 43.) As Plaintiff does not
dispute Defendants' allegation, the Court, therefore, deems Defendants' SUMF if 43 undisputed.
her scheduled shift, not wearing her uniform, and indicat[ ed] that she was turning in her company
phone."33 (Defs.' SUMF ~ 46.) Witnesses explained that Plaintiff "stated that she was coming in
to get fired and was waiting to be told as such officially." 34 (Id.
if 47.) On that day, Plaintiff came
into the store for a few minutes and then "called out" of work. (Id.
if 48.) Plaintiff''was then issued
a final written warning based on her continued unexcused absences from work." 35 (Id.) Thereafter,
Plaintiff accrued four additional, consecutive unexcused absences. (Id.
if 50.) The Manager and
AT&T management subsequently terminated Plaintiffs employment on May 19, 2014. 36 (Id.)
Plaintiffs response states: "The statement of her attire is not disputed." (PL 's Resp. to Defs.'
SUMF ir 46.) Plaintiff does not deny that the remainder of Defendants' SUMF if 46 is true. The
Court, therefore, deems Defendants' SUMF ir 46 undisputed.
Plaintiffs response states: "Disputed by the statement of the co-worker." (PL 's Resp. to Defs.'
SUMF ~ 47.) As there is no record citation, the Court assumes that Plaintiff is referring to the
Atchison and Mercado statements. (ECF Nos. 26-5, 26-6.) These two statements, however, are
unsworn statements. The Court, therefore, declines to consider these statements for the purpose of
this Motion, and deem Defendants' SUMF ir 47 undisputed. See Woloszyn v. Cty. of Lawrence,
396 F.3d 314, 323 (3d Cir. 2005) (upholding district court's refusal to consider unsworn statement
in determining motion for summary judgment, reasoning that "since the statement was not in
affidavit form, it was not sufficient ... to rely upon").
Plaintiffs response states: "Disputed. Having had [the Assistant Manager] and [the Manager]
tell [Plaintiff] that she should quit after she made the complaint of violation of the company's
sexual harassment policy, they were happy this had occurred." (PL's Resp. to Defs.' SUMF ir 48.)
Plaintiff does not deny that AT&T' s SUMF ir 48 is true, but rather addresses management's alleged
motive regarding the matter. The Court, therefore, deems. Defendants' SUMF ir 48 undisputed. To
the extent this allegation constitutes a legal conclusion for the purposes of evaluating Plaintiffs
retaliation claim, the Court does not accept the allegation as true· and reserves evaluation for the
Discussion section below.
Plaintiffs response states: "Denied. Again, [the Assistant Manager] and [the Manager] sought
[Plaintiffs] dismissal following her complaint of sexual harassment and unsuccessful attempt to
enforce company policy, and the discussion of attendance really had little to do with what
occurred." (PL's Resp. to Defs.' SUMF ir 50.) Plaintiff, however does not deny that she was
terminated on May 19, 2014. (PL's Dep. 72:19-22.)
Disputed Facts~ 7
It is disputed whether Plaintiff directly reported to the Manager, or whether Plaintiff
directly reported to the Assistant Manager. (Defs.' SUMF if 5; PL's Resp. to Defs.' SUMF if 5.) It
is further disputed whether, with and without Arruda's participation, "[ d]iscussion of sexual
activities occurred on a regular basis at the AT&T facility." (PL 's CSF ifif 8-9, 12; Defs.' Resp. to
PL' s CSF ifif 8-9, 12.) In addition, the parties dispute whether the Assistant Manager would discuss
"getting with women on social networking sites, [and] how he slept with them and customers."
(PL' s CSF
ifif 10-11; Defs.' Resp. to PL' s CSF ifif 10-1 l.) It is also disputed whether "sexual
comments or innuendos occurred on a daily basis at AT&T." (PL's CSF ir 12; Defs.' Resp. to PL's
if 12.) Specifically with respect to Arruda, it is disputed whether Arruda showed Plaintiff
pornography. (PL's CSF if 20; Defs.' Resp. to PL's CSF if 20.)
Summary judgment is appropriate if the record demonstrates "that there is no genuine
dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R.
Civ. P. 56(a); see Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). "Only disputes over
Upon review of the parties' submissions, the Court finds that only the following limited
allegations are disputed between the parties. The lack of disputed facts is largely attributable to
Plaintifrs failure to adhere to Local Civil Rule 56.1 (a). Plaintifrs responses to Defendants' SUMF
contain no citations to the record as required under the Local Civil Rules. See L.Civ.R. 56.l(a)
("The opponent of summary judgment shall furnish, with its opposition papers, a responsive
statement of material facts, addressing each paragraph of the movant' s statement, indicating
agreement or disagreement and, if not agreed, stating each material fact in dispute and citing to the
affidavits and other documents submitted in connection with the motion.") (emphasis added).
Plaintiff's CSF is also severely deficient because: (1) Plaintiff fails to cite to the record with respect
to numerous allegations; and (2) where Plaintiff cites to the record, the citations are largely
deficient because Plaintiff did not submit the cited excerpts to relevant deposition transcripts or
otherwise relied entirely on a conclusory, self-serving-certification. See Marrin v. Cap. Health Sys.
Inc., No. 14-2558, 2017 WL 2369910, at *17 (D.N.J. May 31, 2017) ("[A plaintiff's] conclusory,
self-serving [certifications] are insufficient to withstand a motion for summary judgment.").
facts that might affect the outcome of the suit under the governing law will properly preclude the
entry of summary judgment." Anderson, 4 77 U.S. at 248. A material fact raises a "genuine" dispute
"if the evidence is such that a reasonable jury could return a verdict for the non-moving party."
Williams v. Borough ofW Chester, 891F.2d458; 459 (3d Cir. 1989) (quoting Anderson, 477 U.S.
In evaluating the evidence, the Court must consider all facts and their logical inferences in
the light most favorable to the non-moving party. Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir.
2002). While the moving party bears the initial burden of proving an absence of a genuine dispute
of material fact, meeting this obligation shifts the burden to the non-moving party to "set forth
specific facts showing that there is a genuine [dispute] for trial." Anderson, 447 U.S. at 250. If the
non-moving party fails to:
make a showing sufficient to establish the existence of an element
essential to that party's case, and on which that party will bear the
burden of proof at trial[,] .... there can be "no genuine [dispute] of
material. fact," [because] a complete failure of proof concerning an
essential element of the non[-]moving party's case necessarily
renders all other facts immaterial.
Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 n.5 (3d Cir. 1992) (quoting Celotex Corp. v. Catrett,
477 U.S. 317, 322-23 (1986)). "If the evidence is merely colorable, or is not significantly
probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50. "Thus, if a
reasonable fact finder could find in the non-movant's favor, then summary judgment may not be
granted." Norfolk S. Ry. Co. v. Basel/ USA Inc., 512 F.3d 86, 91 (3d Cir. 2008).
Hostile Work Environment under Title VII and NJLAD (Count One)
Count One of Plaintiffs Complaint alleges hostile work environment sexual harassment
under both Title VII and the New Jersey Law Against Discrimination ("NJLAD"). Because "[t]he
elements of [NJLAD] closely resemble the first four elements of [a] Title VII hostile work
environment claim," the Court's analysis is applicable to both. Cardenas v. Massey, 269 F.3d 251,
263 (3d Cir. 2001).
In order to hold an employer liable under a Title VII hostile work environment claim,
Plaintiff must demonstrate that: "( 1) [she] suffered intentional discrimination because of [her] sex;
(2) the discrimination was pervasive and regular; (3) the discrimination detrimentally affected
[her]; (4) the discrimination would detrimentally affect a reasonable person of the same sex in that
position; and (5) the existence of respondeat superior liability." Kunin v. Sears Roebuck & Co.,
175 F.3d 289, 293 (3d Cir. 1999), cert. denied, 528 U.S. 964 (1999) (quoting Andrews v. City of
Phi/a., 895 F.2d 1469, 1482 (3d Cir. 1990). Similarly, in order to prevail under NJLAD, Plaintiff
must demonstrate that the alleged harassing conduct "( 1) would not have occurred but for the
employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable woman
believe that (4) the conditions of employment are altered and the working environment is hostile
or abusive." Lehmann v. Toys R Us, Inc., 626 A.2d 445, 453 (N.J. 1993).
Under both Title VII and the NJLAD, "where a plaintiff seeks to hold her employer liable
for a hostile work environment created by co-workers, she must show that the employer knew or
should have known of the harassment .... and failed to take prompt remedial action." Reynolds v.
Atl. City Convention Ctr. Auth., No. 88-4232, 1990 WL 267417, at
(D.N.J. May 26, 1990),
aff'd, 925 F.2d 419 (3d Cir. 1991). "[A] [p]laintiff can demonstrate knO\yledge by the employer
by showing that she complained to management of harassment." Id. Prompt remedial action is
action that is "reasonably calculated to prevent further harassment." Boneberger v. Plymouth Twp.,
132 F.3d 20, 26 (3d Cir. 1997). Here, Defendants seek summary judgment on three grounds: (1) the
alleged harassment was not sufficiently "severe" or "pervasive"; (2) AT&T took prompt remedial
action in response to Plaintiffs complaint; and (3) Plaintiff failed to take advantage of corrective
opportunities. (Defs.' Moving Br. 14-24, ECF No. 23-7.) Here, the Court finds that the alleged
harassment was not sufficiently severe or pervasive.
"Under both Title VII and NJLAD, a hostile environment claim requires proof of pervasive
or severe intentional discrimination that affected the plaintiff and would also affect a reasonable
person." Bouton v. BMW ofN. Am., Inc., 29 F.3d 103, 106 (3d Cir. 1994); see also Castleberry v.
ST! Grp., 863 F.3d 259, 263 (3d Cir. 2017). In deciding whether harassment was sufficiently severe
or pervasive to create a hostile work environment, no single factor is dispositive: the totality of the
circumstances is considered. See Harris v. Forklift Sys., Inc., 510 U.S. 17, 23 (1993). The
circumstances to be weighed are: "the frequency of the discriminatory conduct; its severity;
whether it is physically threatening or humiliating, or a mere offensive utterance; and whether it
unreasonably interferes with an employee's work performance." Id. at 23.
Furthermore, the discriminatory conduct "must be extreme to amount to a change in the
terms and conditions of employment." Faragher, 524 U.S. at 788 (holding that the "standards for
judging hostility are sufficiently demanding to ensure that Title VII does not become a 'general
civility code"'). Consequently, "simple teasing, offhand comments, and isolated incidents (unless
extremely serious) will not amount to discriminatory changes in the terms and conditions of
employment." Id. (citation omitted).
Here, Plaintiff: (1) failed to cite to the record as required under Local Civil Rule 56.l(a);
(2) failed to attach the relevant supporting documents, such as pertinent pages from deposition
transcripts; and (3) relied on a conclusory self-serving certification as opposed to documents
obtained in discovery. 38 (See generally Pl.'s Resp. to Defs.' SUMP; Pl.'s CSP.) Accordingly, the
totality of the few allegations Plaintiff adequately alleged on summary judgment amount to mere
workplace difficulties or ordinary tribulations of the workplace. See Faragher, 524 U.S. at 788
(holding that "ordinary tribulations of the workplace, such as the sporadic use of abusive language,
gender-related jokes, and occasional teasing" are insufficient to show a hostile work environment).
These allegations include "[ d]iscussion of sexual activities ... on a regular basis at the AT&T
facility," 39 including discussions of"getting with women on social networking sites, [and sleeping]
with them and customers,"40 "sexual comments or innuendos,"41 and an isolated incident of a
coworker showing Plaintiff pomography. 42 "[T]he purview of Title VII[,] [however,] does not
extend to all workplace difficulties, even where the conduct at issue may be crass and
unwarranted." Selvato v. SEPTA, 143 P. Supp. 3d 257, 266 (E.D. Pa. Nov. 18, 2015), aff'd, No.
Plaintiffs certification is devoid of details. The certification primarily consists of general
allegations as to comments made without identifying any specific instances, specific individuals,
specific dates, or any context surrounding the alleged events. (See generally Ballard Cert., ECP
No. 27.) The few factual allegations containing a minimal level of detail include: the Assistant
Manager's comments about women's physical attributes and telling Plaintiff that Arruda "liked
black women" (id. ifif 11, 17); the Assistant Manager contacting Plaintiff on a dating site and
commenting on Plaintiffs pictures, although the certification omits description of the actual
comments (id.~ 12); isolated incidents of Arruda taking pictures of Plaintiffs chest and buttocks
in her work uniform and showing her pornography (id. if 13); Arruda telling Plaintiff what he
wanted to do to her, although the certification omits description of Arruda's actual comments (id.);
and the Assistant Manager telling Plaintiff to "leave" because she did not "fit in," although the
certification omits any description of the context with respect to these alleged comments (id. if 19).
Even when considering these facts in the light most favorable to Plaintiff, the Court finds that they
do not constitute sufficient severi'ty or pervasiveness to survive summary judgment.
(Pl. 's CSP ifif 8-9, 12; Defs.' Resp. to Pl. 's CSP ifif 8-9, 12.)
(Pl.' s CSP ifif 10-11; Defs.' Resp. to Pl.' s CSP ifif 10-11.)
(Pl.'s CSP if 12; Defs.' Resp. to Pl.'s CSP if 12.)
(Pl.' s CSF if 20; Defs.' Resp. to Pl.' s CSP if 20.)
15-3686, 2016 WL 4177212 (3d Cir. Aug. 8, 2016). Accordingly, Defendants' renewed Motion
for Summary Judgment is granted with respect to Count One.
Constructive Discharge and Retaliation (Count Two)
"The constructive-discharge doctrine contemplates a situation in which an employer
discriminates against an employee to the point such that [her] working conditions become so
intolerable that a reasonable person in the employee's position would have felt compelled to
resign." Green v. Brennan, 136 S. Ct. 1769, 1776 (2016). "When the employee resigns in the face
of such circumstances, Title VII treats that resignation as tantamount to an actual discharge." Id.
at 1776-77. Accordingly, a constructive discharge claim has two basic elements: (1) "[a] plaintiff
must prove . . . that [she] was discriminated against by [her] employer to the point where a
reasonable person in [her] position would have felt compelled to resign"; and (2) "[she] must also
show that [she] actually resigned." Id. at 1777 (emphasis added). Here, Plaintiff admits that she
did not resign, quit, voluntarily leave, or any such equivalent. Rather, Plaintiff testified that the
Manager fired her. 43 (PL 's Dep. 72: 19-22.) Accordingly, Plaintiff cannot establish her constructive
discharge claim because she cannot "show that [she] actually resigned." Green, 136 S. Ct at 1777.
Additionally, "[t]here are subtle but discernible differences between the standard for a
hostile work environment and the standard for constructive discharge." Pikowski v. GameStop,
Inc., No. 11-2732, 2013 WL 6498072, at *13 (D.N.J. Dec. 11, 2013). "[A] hostile work
environment claim requires 'severe or pervasive' conduct that objectively 'alters the conditions of
Although Plaintiffs Opposition Brief argues in conclusory fashion that "there is sufficient
evidence of a hostile work environment . . . and that was the proximate cause of [P]laintiff s
resignation," (PL 's Opp'n Br. 27 (emphasis added)), Plaintiff concedes that she did not resign, but
was rather fired (PL 's Dep. 72: 19-22).
employment' and is 'hostile or abusive."' Id. "In contrast, constructive discharge requires not
merely 'severe or pervasive' conduct, but 'conduct that is so intolerable that a reasonable person
would be forced to resign rather than continue to endure it."' Id. (emphasis added). "Simply put,
a constructive discharge claim requires more egregious conduct than that sufficient for a hostile
work environment claim." Id. Here, as the Court determined that the alleged conduct was neither
sufficiently severe nor pervasive with respect to Plaintiffs hostile work environment claim,
Plaintiffs constructive discharge claim is also similarly deficient on summary judgment.
The Court, therefore, grants Defendants' Motion for Summary Judgment with respect to
Plaintiffs constructive discharge claim under Count Two.
To establish a prima facie case of retaliation under Title VII and NJLAD, a plaintiff must
prove: "(1) she engaged in activity protected by Title VII; (2) the employer took an adverse
employment action against her; and (3) there was a causal connection between her participation in
the protected activity and the adverse employment action." Moore v. City ofPhi/a., 461F.3d331,
340-41 (3d Cir. 2006); Jamison v. Rockaway Twp. Bd. of Educ., 577 A.2d 177, 182 (N.J. Super.
Ct. App. Div. 1990). The Third Circuit has held that the adverse employment action "must be
serious and tangible enough to alter an employee's compensation, terms, conditions, or privileges
of employment." Tourtellotte, 636 F. App'x at 852 (quoting Robinson v. City of Pittsburgh, 120
F.3d 1286, 1300 (3d Cir. 1997)). In its analysis of such adverse employment action, the Third
Circuit utilizes an objective standard: whether "a reasonable employee would have found the
alleged retaliatory actions 'materially adverse' in that they 'well might have dissuaded a reasonable
worker from making or supporting a charge of discrimination."' Moore, 46 l F .3d at 341 (quoting
Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
assessing whether there is a causal connection, [the Third] Circuit has focused on the
ternporal proximity of the protected activity and the adverse employment action, as well as whether
or not there is a pattern of antagonism." Tourtellotte, 636 F. App'x at 852 (citing Jensen v.
Potter, 435 F.3d 444, 450 (3d Cir. 2006), overruled in part on other grounds by Burlington N. &
Santa Fe Ry. Co., 548 U.S. at 53).
Assuming the plaintiff can establish a prima facie case of retaliation, "the burden shifts to
the employer to advance a legitimate, non-retaliatory reason for its conduct." Moore, 461 F.3d at
342. If the employer can do that, the burden shifts to the plaintiff to "produce some evidence from
which a jury could reasonably reach the conclusion ... that [(1)] the employer's proffered
explanation was false, and [(2)] that retaliation was the real reason for the adverse employment
Here, Plaintiff satisfies the first and second elements of her prima facie retaliation claim.
With respect to the first element, Plaintiffs complaint of harassment to management on May 2,
2014 constituted protected activity under Title VII. With respect to the second element, Plaintiffs
termination on May 19, 2014 constituted adverse employment action taken against her. Plaintiff,
however, fails to satisfy the third element of her prima facie retaliation claim, as she does not
demonstrate that "there was a causal connection between her participation in the protected activity
and the adverse employment action." Moore, 461 F.3d at 340-41. Indeed, Defendants provide
sufficient evidence to support their contention that Plaintiff was terminated on May 19, 2014 due
to her attendance issues following her complaint on May 2, 2014.
Although Plaintiffs termination was only seventeen days after she made her complaint, in
that time frame she was scheduled to work twelve separate shifts, but only appeared for three of
those twelve shifts, and appeared late for two of the three. (Johannessen Deel., Ex. I, at ATT0155.)
Plaintiff claims that she did not attend work because she was ''uncomfortable working in [the]
environment." (Defs.' SUMF ~ 43; Pl. 's Dep. 184:2-5.) Plaintiff, however, testified that she "kept
[her discomfort] to [her]self." (Pl.'s Dep. 184:6-8.) Plaintiff admits she did not notify AT&T's
Human Resources department, legal department, compliance department, anonymous hotline, or
any other available resource about her discomfort. (Id. 184:9-23.)
Furthermore, on May 6 and May 13, 2014, Plaintiff was issued two written warnings about
her attendance issues prior to being terminated. (Johannessen Deel., Ex. L, at ATT0058.) On May
6, 2014, the Manager and the Assistant Manager met
Plaintiff to discuss her sales goals, as
part of her ongoing Counseling Notice action plan from April 21, 2014. (Defs.' SUMF
Dep. 204:2-205:8.) Plaintiff testified that she was "aware that [AT&T] still expected [her] to make
sales and build value interactions with customers." (Pl.'s Dep. 204:17-20.) Plaintiff, however,
accrued two more unexcused absences on May 7 and May 8, 2014. (Johannessen Deel., Ex. I, at
ATT0155.) Plaintiff returned to work on May 10, 2014, but then accrued another unexcused
absence on May 11, 2014. (Id.)
On May 13, 2014, Plaintiff "came into work before her scheduled shift, not wearing her
uniform, and indicat[ed] that she was turning in her company phone." (Defs.' SUMF
that day, Plaintiff clocked in for five minutes and did not work. (Id. if 48; Johannessen Deel., Ex.
I, at A TTO 155 .) Plaintiff ''was then issued ·a final written warning based on her continued
unexcused absences from work." (Id.) After receiving this final written warning on May 13, 2014,
Plaintiff accrued four more, consecutive unexcused absences on May 14, May 16, May 17, and
May 18, 2014. (Johannessen Deel., Ex. I at ATT0155.) Accordingly, Defendants terminated
Plaintiffs employment due to her attendance issues. (Defs.' SUMF
if 50.) The Court, therefore,
finds that Plaintiff has not demonstrated that "there was a causal connection between her
participation in the protected activity and the adverse employment action." Moore, 461 F.3d at
In the alternative, even if Plaintiff had established a prima facie case of retal~ation, the
evidence of record does not support a finding that Defendants' legitimate, non-discriminatory
reason for its adverse actions were pretext for retaliation. See Garnett v. Bank ofAm., No. 14-921,
2017 WL 1074358, at *11 (D. Del. Mar. 21, 2017) (granting summary judgment where plaintiff
"received multiple warnings ... regarding her job performance and what was expected from her
to meet performance expectations iri her position ... [and] was warned of the consequences should
her performance fail to improve, yet she failed to improve and, ultimately, her employment was
terminated"). Defendants' proffered reason for terminating Plaintiffs employment is. "not weak,
incoherent, implausible, or so inconsistent that a reasonable factfinder could rationally find it
unworthy of credence." Id. "[A]t the summary judgment stage the burden shifts to [Plaintiff] to
come forward with sufficient evidence for a reasonable juror to find that [Defendants'] plausible
rationales are mere pretext." Stucke v. City of Phi/a., No. 15-2303, 2017 WL 1363874, at *4 (3d
Cir. Apr. 12, 2017). Plaintiff has failed to do so. Accordingly, the Court concludes that no
reasonable jury could find that Plaintiff has established a claim of retaliation. The Court, therefore,
grants Defendants' Motion for Summary Judgment with respect to Plaintiffs retaliation claim
under Count Two.
For the reasons set forth above, Defendants' Renewed Motion for Summary Judgment is
GRANTED. An Order consistent with this Memorandum Opinion will be entered.
UNITED STATES DISTRICT JUDGE
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