JOEL A. PISANO, District Judge.
This matter comes before the Court on Defendant Cablevision Systems Corporation's ("Defendant" or "Cablevision") motion for summary judgment pursuant to Federal Rule of Civil Procedure 56. Plaintiff Christiana Itiowe ("Plaintiff" or "Itiowe") opposes the motion. For the reasons set forth below, the Court will grant Cablevision's motion for summary judgment.
On September 5, 2006, Plaintiff, an African-American female of Nigerian descent, was hired to serve as a Residential Account Executive ("RAE") in Cablevision's Tinton Falls, New Jersey office. Def.'s 56.1 Statement, Ex. 4. As a RAE, she was required to go door-to-door in Monmouth County selling internet, phone and cable services to customers. Devine Cert. ¶ 4. From the beginning of her employment through July 2007, Plaintiff had a strong sales record and was not subject to any disciplinary action. Id. ¶ 7; Long Dep. 19:23-20:5.
In March 2007, Plaintiff applied for an open Direct Sales Supervisor ("DSS") position at Cablevision's office in Morris County, New Jersey ("Morris office"). Itiowe Dep. 139:25-140:6. She was interviewed for the position in April 2007. Based upon a positive review by her interviewer, John Raynolds, Plaintiff was selected as one of the two finalists for the position. Raynolds Dep. 54:11-18. As a result, she had a second interview with Colleen Long, the Area Director.
Ultimately, Long and Raynolds decided not to hire Plaintiff for the position. Instead, they selected Ralph Gorthey, the other finalist. Long Cert. ¶ 17; Raynolds Cert. ¶ 17. Their stated reasons for selecting Gorthey and not Plaintiff included Gorthey's familiarity with the Morris office territory, his fluency in Spanish—which, in their view, was a valuable skill in light of the sizeable Spanish-speaking position in the area—and his demonstrated leadership skills. Long Dep. 13:24-17:24; Raynolds Dep. 32:18-33:6.
In July 2007, Plaintiff applied for another open DSS position, this time in Cablevision's Newark office. Malyuk Cert. ¶ 7. Jason Malyuk, one of two individuals responsible for hiring for the position, selected eight applicants for interviews, one of whom was Plaintiff. Id. ¶ 4. Malyuk described Plaintiff's interview—which took place on July 23, 2007 and lasted approximately forty minutes, id. ¶ 7—as the "worst" interview he had ever done or been a part of. Id. ¶ 12; Malyuk Dep. 38:17-23; 52:7-20. He testified that Plaintiff monopolized the conversation, appeared inattentive, and otherwise failed to demonstrate good listening or communication skills during the interview. Malyuk Dep. 38:17-42:9; 50:16-52:70. As a result, Plaintiff was not subsequently interviewed by George Sundstrom, Malyuk's supervisor, and was not hired for the DSS position in Newark.
Beginning in August 2007, Plaintiff's performance and behavior at work began to deteriorate. In early August, she had a confrontation with Flo Melo, another employee at her office in Tinton Falls. Devine Cert. ¶ 9. After John Devine, a DSS at the office, broke up the argument between Plaintiff and Melo, he told Plaintiff that any future outbursts at the office would not be tolerated. Id. ¶ 12. Plaintiff stated that she would not hesitate to confront Melo in the future, and Melo alleged three months later that Plaintiff was attempting to frighten and provoke her.
Plaintiff also failed to meet her minimum monthly sales goal in August 2007. Devine Cert. ¶ 13. At that time, all RAEs in the Monmouth office who failed to meet the 65% sales goal received a Developing Sales Representative ("DSR") Plan for the first month under the goal, and a Representative Action Plan ("RAP") for subsequent months. Id. ¶ 17. Thus, because Plaintiff only met 46% of her sales goal in August, she was placed on a DSR Plan in September. Id. ¶ 14. The Plan stated that she could be terminated if she failed to meet her monthly sales goal for four months in the calendar year. Id. ¶¶ 14, 17.
Plaintiff again failed to meet her monthly sales goal for October 2007. Devine Cert. ¶ 22. This time she hit 0% of her goal, and was therefore issued a RAP. Id. ¶¶ 22, 23. During a meeting to discuss the RAP, Devine reminded Plaintiff of her duty to write down all of her field activities and all accounts that she visited each day. Id. ¶ 24. The following day, Plaintiff turned in a timesheet that indicated just one sale, and that she had only knocked on the doors of six homes. Def.'s 56.1 Statement, Ex. 11. At that point, Plaintiff was advised that she must knock on more than six doors to meet the minimum expectations of the job. Id.
On October 26, 2007, Lou Burdo, a DSS at the Tinton Falls office, met with Plaintiff to discuss her sales and marketing activities. Devine Cert. ¶¶ 18, 22. During the course of their conversation, Plaintiff raised her voice and became argumentative with Burdo. Id. ¶ 18. In subsequent emails and meetings with Jerry Fleischer, a Human Resources Manager, Plaintiff complained about the feedback she had received from Burdo as well as the "negativity" she perceived at the office. Fleischer Cert. ¶ 14; Pl.'s Supp. 56.1 Statement, Ex. J. She did not express any belief that she was being discriminated against on the basis of any protected characteristic. Fleischer Cert. ¶¶ 14-16; Pl.'s Supp. 56.1 Statement, Ex. J.
In early November 2007, Plaintiff had two meetings with Long. During the first meeting, Long testified that Plaintiff appeared to be sleeping. Long Dep. 43:14-44:10. In a follow-up meeting, Long addressed concerns with Plaintiff's job performance and described Plaintiff's response and attitude as defensive and belligerent. Long Cert. ¶ 18. On November 13, Devine asked Burdo to instruct Plaintiff to go to Devine's office so that they could discuss the events of the prior week and the timesheet Plaintiff had submitted that indicated that she had marketed no homes and made no sales. Id. ¶¶ 26, 31. According to Burdo, Plaintiff refused to speak with Devine, called him a "liar," and said she was going to "get him." Devine Cert. ¶ 32.
Devine then went to speak to Plaintiff. He described Plaintiff's behavior as insubordinate, unprofessional, and disrespectful, and therefore in violation of Cablevision's Policies and Procedures. Id. ¶ 34. Plaintiff subsequently sent a letter to Fleischer, who met with Plaintiff to discuss her complaints about her supervisors. Fleischer Cert. ¶ 20-22. She did not raise any claims that she was discriminated against on any basis, and Fleischer recommended that, while Plaintiff could continue looking within the company for an opening, she might want to consider looking outside of the company as well. Fleischer Cert. ¶ 23; Itiowe Dep. 386:7-387:9.
Following their meetings with Plaintiff, Devine and Long decided to issue her a Formal Written Reprimand. They identified her recent behavior, performance at work, and continued violation of company policy as their bases for their decision. Devine Dep. 60:21-64:18; Long Dep. 35:4-10; 39:2-42:7. On November 16, 2007, they met with Plaintiff to discuss the Reprimand. Devine Cert. ¶ 36; Long Dep. 45:2-9; 68:8-12.
At or around the same time, Plaintiff sent Fleischer a letter that, among other things, alleged discrimination on the basis of race and gender.
In November 2007, Plaintiff was issued another RAP after again achieving 0% of her sales goals. Devine Cert. ¶ 43; Long Cert. ¶ 23. On December 4, 2007, she had a meeting with Devine at which he addressed her continued failure to meet her sales goals and advised her that, if she did not reach the 65% goal in December, she could be recommended for further corrective action up to and including termination. Devine Cert. ¶ 49. As of December 28, 2007, Plaintiff was trending to score below her 65% monthly sales goal. Devine Cert. ¶ 50. Because this was the fourth consecutive month that Plaintiff had failed to meet her goals, Devine requested her termination. Id. ¶ 51. However, prior to any termination being approved or finalized, Plaintiff went out on approved medical leave, effective December 19, 2007. Devine Cert. ¶ 52. On February 19, 2008, while still out on leave, Plaintiff resigned from Cablevision. Itiowe Dep. 280:8-12; Devine Cert. ¶ 54.
Plaintiff was approved for medical leave in December due to her paranoid schizophrenia. Def.'s 56.1 Statement, Ex. 16. According to Plaintiff, she was diagnosed with paranoid schizophrenia in 2001. Itiowe Dep. 369:14-17. Both she and her treated psychiatrist, Dr. Jorge Bascara, testified that the symptoms of her condition, including hallucinations and delusions, do not ever completely dissipate, even with medication. Itiowe Dep. 257:11-258:4; Bascara Dep. 75:5-24. Dr. Bascara also stated that Plaintiff was often non-compliant with her medications, and, in January 2008, recommended that she take time off from work in light of her condition.
Plaintiff's supervisors and Human Resource Manager all maintain that they were unaware of Plaintiff's paranoid schizophrenia until she went out on medical leave in December 2007, and that she did not disclose her condition or seek their assistance or any accommodation prior to that time. Devine Cert. ¶ 38; Long Cert. ¶ 13; Flesicher Cert. ¶ 35. At her deposition, Plaintiff could not recall who at Cablevision she had spoken to about her condition.
While still out on medical leave and prior to tendering her resignation from Cablevision, Plaintiff filed a Charge of Discrimination with the United States Equal Employment Opportunity and the New Jersey Division on Civil Rights. Def.'s 56.1 Statement, Ex. 18. In the Charge, she alleged that the decision denying her a promotion to DSS in July 2007 was discriminatory on the basis of race, sex and national origin. Id. The Charge makes no mention of any alleged disability discrimination. Id.
While Plaintiff was employed at Cablevision, the company had a zero tolerance policy against discrimination, harassment and retaliation. Fleischer Cert. ¶¶ 3, 5, 6. The Employee Handbook and harassment prevention policy, which Plaintiff received a copy of, outlines this policy and contains a procedure for employees to make complaints about workplace issues, including discrimination or harassment. Id. Plaintiff also received training on Cablevision's anti-harassment and discrimination policies. Id. ¶ 7.
On February 17, 2009, Plaintiff filed a complaint against Cablevision. In a Memorandum Opinion and Order entered on September 10, 2009, Chief Judge Garrett E. Brown, Jr. granted in part and denied in part a motion to dismiss filed by Cablevision. Plaintiff subsequently filed an Amended Complaint on September 25, 2009. Therein, she asserts numerous causes of action, including allegations of: discrimination on the basis of race, color, national origin, gender and disability in violation of Title VII, 42 U.S.C. § 1981, the Americans with Disabilities Act ("ADA"), and the New Jersey Law Against Discrimination ("NJLAD"); constructive discharge in violation of Title VII, the ADA, and the NJLAD; hostile work environment and retaliation in violation of the NJLAD; and emotional distress in violation of 42 U.S.C. § 1981a.
To prevail on a motion for summary judgment, the moving party must establish "that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). The substantive law identifies which facts are "material." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In determining whether a genuine dispute of material fact exists, the court must view the facts in the light most favorable to the non-moving party and extend all reasonable inferences to that party. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Stephens v. Kerrigan, 122 F.3d 171, 176-77 (3d Cir. 1997). The Court is not to "weigh the evidence and determine the truth of the matter," but instead need only determine whether a genuine issue necessitates a trial. Anderson, 477 U.S. at 249.
The moving party bears the initial burden of demonstrating the absence of a genuine issue, regardless of which party ultimately would have the burden of persuasion at trial. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L. Ed. 2d 265 (1986). Once that showing has been made, the burden then shifts to the non-moving party to identify, by affidavits or otherwise, specific facts showing the existence of a genuine issue for trial. Id. at 324. The non-moving party may not rest upon the mere allegations or denials of its pleadings, id., and must offer admissible evidence establishing a genuine issue of material fact, not just "some metaphysical doubt as to the material facts." Matushita, 475 U.S. at 586.
In her Amended Complaint, Plaintiff alleges that Cablevision discriminated against her on the basis of her race, color, national origin, gender, and disability in violation of Title VII, 42 U.S.C. § 1981, the ADA, and the NJLAD. When addressing employment discrimination claims under these statutes, the Court applies the familiar burden-shifting framework articulated in McDonnell Douglas v. Green, 411 U.S. 792 (1973). See Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003)(applying framework to Title VII claims); Vulcan Pioneers of N.J. v. City of Newark, 374 F. App'x 313, 318 (3d Cir. 2010)(Section 1981 and NJLAD claims); Wishkin v. Potter, 476 F.3d 180, 185 (3d Cir. 2007)(ADA claims). Under this framework, a plaintiff must first establish a prima facie case of discrimination by demonstrating that: (1) she belongs to a protected class; (2) she was qualified for the position at issue; (3) she was subject to adverse employment action despite being qualified; and (4) 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, 352 F.3d at 797.
Once a prima facie case is established, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the [adverse employment action]." Id. (quoting McDonnell Douglas, 411 U.S. at 802). If the employer meets this burden, the plaintiff then has the opportunity to show that the employer's proffered reason was merely a pretext for discrimination. Id.
Plaintiff first alleges that she was discriminated against on the basis of her race, color, national origin and gender when she was denied promotions on two separate occasions by Cablevision. Specifically, she alleges that Cablevision's failure to promote her to the position of DSS at both the Morris office and the Newark office violated Title VII, § 1981, and the NJLAD because the decisions were motivated by discriminatory animus.
The McDonnell Douglas burden-shifting framework set forth above applies to Plaintiff's failure to promote claims. Thus, if Plaintiff succeeds in establishing a prima facie case of discrimination, the burden shifts to Cablevision to proffer a "legitimate, non-discriminatory reason for its failure to promote." Scheidemantle v. Slippery Rock Univ. State System of Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006). If Cablevision satisfies its burden, Plaintiff must then demonstrate that the proffered reason was merely a pretext for discrimination. Id.
Here, even assuming that Plaintiff can establish a prima facie case,
Plaintiff's arguments challenging that rationale and seeking to establish that it is merely pretextual are without merit. Indeed, although Plaintiff asserts that Long and Raynolds did not know at the time of their decision whether Gorthey had the ability to speak Spanish or had familiarity with the area, she points to no evidence in support of this contention. In fact, both supervisors testified that, at the time of their decision, they were aware of both of Gorthey's skills in that regard.
Cablevision is also entitled to summary judgment on Plaintiff's failure to promote claim with regard to the DSS position at the Newark office. After applying for that position in July 2007, Plaintiff was interviewed by Jason Malyuk, one of two individuals responsible for hiring. Malyuk Cert. ¶ 7. Malyuk described Plaintiff's interview as the "worst" interview he had ever conducted or been a part of, and specifically noted that Plaintiff monopolized the conversation, appeared inattentive, and otherwise failed to demonstrate good listening or communication skills. Id. ¶¶ 12-13; Malyuk Dep. 38:17-42:9; 50:16-52:70. Thus, on that basis, Plaintiff was not advanced in the interview process and was not awarded the DSS position in Newark.
In an attempt to manufacture a showing that Malyuk was motivated by discriminatory animus and that the proffered reason for Cablevision's hiring decision is pretextual, Plaintiff advances a number of arguments. First, she asserts that Cablevision failed to provide a specific justification for its decision. That argument, however, is belied by the stated reasons provided by Malyuk and detailed above. See Malyuk Cert. ¶¶ 12-13; Malyuk Dep. 38:17-42:9; 50:16-52:70. Next, Plaintiff suggests that the individuals who were promoted to the open DSS positions in Newark, both of whom are Hispanic, were selected because Malyuk is also Hispanic. However, that is simply not true, as Malyuk is not in fact Hispanic. See Second Fleischer Cert ¶ 2. Additionally, Malyuk further explained that, of the three individuals ultimately considered for the positions, two had familiarity with the Newark sales territory and office, and all three had strong interview performances. See Malyuk Cert. ¶¶ 16-20. Thus, Plaintiff's argument ultimately amounts to no more than her own subjective evaluation of her credentials as compared to the other candidates for the position. Although she may disagree with the promotion decision that Cablevision ultimately made, she has provided no evidence of pretext, and it is not the "court's role to second-guess an employer's business judgment as to who is more qualified for the job." Dungee, 940 F. Supp. at 689; Keller v. Orix Credit Alliance, Inc., 130 F.3d 1101, 1109 (3d Cir. 1997)("The question is not whether the employer made the best, or even a sound, business decision; it is whether the real reason is [discrimination]."). Accordingly, Cablevision is entitled to summary judgment on Plaintiff's failure to promote claims.
Plaintiff also asserts a claim under the ADA, alleging that Cablevision failed to accommodate her known or perceived disabilities. Specifically, she contends that she became ill with asthma and bronchitis numerous times during the course of her employment, and that, despite these illnesses, Cablevision failed to accommodate her requests to transfer to another position within the company.
To establish a prima facie case for failure to accommodate, a plaintiff must show that: (1) she is an individual with a disability within the meaning of the ADA; (2) she can perform the essential functions of the job, with or without reasonable accommodations by the employer; and (3) she has suffered an adverse employment decision as a result of discrimination. Williams v. Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 761 (3d Cir. 2004)(internal citations omitted).
Here, as an initial matter, Plaintiff has failed to adequately plead a failure to accommodate claim. Indeed, in her Amended Complaint, she makes only one reference that can conceivably be construed as an attempt to assert such a claim, alleging that "while sick with acute bronchitis and acute asthma, Plaintiff requested Defendant's Human Resources to transfer her to another office or division . . . Defendant refused to accommodate Plaintiff's requests." Am. Compl. ¶ 22. However, that alone is insufficient to plead a failure to accommodate claim under the ADA. See Krouse v. Am. Sterilizer Co., 126 F.3d 494, 499 n.1 (3d Cir. 1997)(a court need not "read in" a cause of action for failure to accommodate where a plaintiff has failed to plead one, "even when the complaint's background section makes a brief reference to failure to accommodate").
Moreover, even looking beyond the pleading deficiencies, Cablevision is entitled to summary judgment on Plaintiff's claim. With regard to the first element of her prima facie case, Plaintiff does not set forth evidence or case law that would support a finding that her asthma and bronchitis
In her Amended Complaint, Plaintiff also alleges that she was subjected to a hostile work environment during her employment at Cablevision. As the basis for her claim, she sets forth a variety of allegations involving comments and conduct by her supervisors and co-workers that she claims were discriminatory and harassing.
In order to prevail on a hostile work environment claim under the NJLAD, a plaintiff must demonstrate that the defendant's conduct: (1) would not have occurred but for the plaintiff's protected status; and that (2) the conduct was severe or pervasive enough to make (3) "a reasonable [person of the same protected class] believe that the (4) conditions of employment are altered and the working environment is hostile or abusive." Lehmann v. Toys `R' Us, Inc., 132 N.J. 587, 604-05 (1993); see also Cardenas v. Massey, 269 F.3d 251, 263 (3d Cir. 2001) (explaining that a hostile work environment claim under NJLAD closely resembles and includes the same basic elements as a Title VII hostile work environment claim).
Here, as a threshold matter, the vast majority of the comments and conduct that Plaintiff alleges in support of her claim are not suggestive of discrimination and thus fail to satisfy the first element of her prima facie case. Lehman, 132 N.J. at 604-05. Indeed, although Plaintiff asserts that various individuals at Cablevision taunted her and made comments in reference to her paranoid schizophrenia, she provides no competent evidence that any of the alleged harassers were even aware that she suffered from that condition.
Likewise, nearly all of the remaining allegations that comprise Plaintiff's hostile work environment claim involve innocuous comments and conduct with no apparent relation to any protected category. For example, Plaintiff alleges that she was encouraged by various individuals to resign or seek employment outside of Cablevision, but gives no indication as to how those alleged suggestions were motivated by discriminatory animus. See Parker v. Verizon Pa., Inc., 309 F. App'x 551, 558-59 (3d Cir. 2009)(supervisor's comments to employee attempting to force employee to resign do not show discriminatory motivation). Similarly, she contends that she was the only employee at Cablevision to be denied a requested reference letter, but does not offer evidence supporting that contention or demonstrating how the decision was based on her protected status.
In addition to being nearly entirely comprised of alleged comments and conduct unrelated to any protected category, Plaintiff's hostile work environment claim does not rise to the level required to withstand summary judgment. Indeed, no reasonable jury could conclude that the conduct that Plaintiff alleges, viewed in its totality, was severe or pervasive enough to make "a reasonable [person of the same protected class] believe that the conditions of employment are altered and the working environment is hostile or abusive." Lehman, 132 N.J. at 604-05. In that regard, Plaintiff's allegation that her co-workers sang "who is the black sheep, where is the black sheep" in her presence
Largely relying on the allegations set forth in support of her hostile work environment claim, Plaintiff also asserts that she was constructively discharged in violation of Title VII, the ADA, and the NJLAD. She contends that the conditions at Cablevision were so intolerable that she was forced to resign in February 2008, two months into her approved medical leave.
In assessing whether an employee can recover on a claim of constructive discharge, the Court must determine "whether a reasonable jury could find that the [employer] permitted conditions so unpleasant or difficult that a reasonable person would have felt compelled to resign." Colwell v. Rite Aid Corp., 602 F.3d 495, 502-03 (3d Cir. 2010)(quoting Duffy v. Paper Magic Group, Inc., 265 F.3d 163, 167 (3d Cir. 2001)). In other words, the Court must "find that the employer knowingly permitted conditions of discrimination in employment so intolerable that a reasonable person subject to them would resign." Goss v. Exxon Office Sys. Co., 747 F.2d 885, 888 (3d Cir. 1984).
Here, as an initial matter, Plaintiff has made no showing as to why the conditions at the time of her resignation—namely, two months into her approved medical leave with another four months of leave remaining—were so intolerable that she had no choice but to resign. See, e.g., Shepherd v. Hunterdon Dev. Ctr., 174 N.J. 1, 24 (2002); Ramos v. Pharmaceutical Formulations, Inc., 2007 WL 92582, at *5 (N.J. Super. App. Div. 2007)(alleged harassment "must be intolerable at the time of . . . plaintiff's resignation.").
Moreover, the allegations and arguments that she does raise in support of her claim fall far short of the level required for a reasonable jury to conclude that she was constructively discharged. See Colwell, 602 F.3d at 502-03. Indeed, Plaintiff almost exclusively relies on the arguments that the Court considered and rejected in connection with her hostile work environment claim,
Finally, Plaintiff asserts a claim for retaliation under the NJLAD. To establish a prima facie case of retaliation, a plaintiff must show that: (1) she engaged in protected activity; (2) she suffered an adverse employment action; and (3) a causal link exists between the protected activity and the adverse employment action. Moran v. DaVita Inc., 441 F. App'x 942, 946 (3d Cir. 2011) (citing Lawrence v. Nat'l Westminster Bank, 98 F.3d 61, 71 (3d Cir. 1996)). Once that showing has been made, the defendant must articulate a legitimate, non-retaliatory reason for its actions. Id.
Here, Plaintiff has not established a prima facie case of retaliation. In support of her claim, the only adverse employment action she alleges is the Formal Written Reprimand she received in November 2007. However, because there is no evidence that the Reprimand resulted in any material change in the terms or conditions of Plaintiff's employment, it cannot be characterized as adverse employment action. Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001)(written reprimands, without accompanying material change in the terms and conditions of plaintiff's employment, cannot constitute adverse employment action); Dooley v. Roche Labs., Inc., 2007WL 556885, 9-10 (D.N.J. Feb. 15, 2007). Moreover, there is no basis for concluding that the issuance of the Reprimand was retaliatory or would have "dissuaded a reasonable worker from making or supporting a charge of discrimination." Hanani v. N.J. Dep't of Envtl. Prot., 205 Fed. App'x 71, 80 (3d Cir. 2006)(internal citation omitted). Accordingly, Cablevision is entitled to summary judgment on Plaintiff's retaliation claim.
For the reasons above, Cablevision's motion for summary judgment is granted. An appropriate Order will follow.
