MICHAEL A. SHIPP, District Judge.
This matter comes before the Court on Defendants AT&T Mobility Services, LLC
"AT&T Corp. has never hired or had any direct contractual relationship with [Plaintiff]."
"AT&T maintains a Code of Business Conduct [(`Code')], by which all employees are required to abide."
(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." (Id. ¶ 9.) The Code states, in relevant part:
(Id.) As with all of AT&T's employees, Plaintiff received training on the Code.
(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."
(Id. ¶ 13.) Plaintiff "also received training on the EEO and Harassment Policy." (Id. ¶ 14.)
As an RSC, Plaintiff "was expected to maintain a minimum number of monthly sales and to improve the customers' experience in the store."
The Counseling Plan explained "a number of the performance issues [Plaintiff] was having," and listed specific documented examples.
(Id. ¶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."
Richard Arruda ("Arruda") was hired and began work at the AT&T store in Freehold Raceway Mall on April 7, 2014. (Defs.' SUMP¶ 27.) According to a subsequent complaint by Plaintiff, "Arruda made some comments to [Plaintiff] about her appearance."
In response, the Manager "documented [Plaintiff's] complaint in AT&T's Personnel Development Tracking System ("PDTS")
(Id. ¶ 30.) The day after Plaintiff's May 2, 2014 complaint, the Manager spoke to Arruda about the incident. (Id. ¶32.) Plaintiff "walked in on [this] conversation . . . but did not hear anything of the discussion."
Plaintiff attended work only three times after her complaint to the Manager on May 2, 2014.
(Id.) Plaintiff claims that she did not attend work because she was "uncomfortable working in that environment." (Id. ¶43; Pl.'s Dep. 184:2-5.) Plaintiff, however, testified that she did not complain to anyone about her discomfort.
On May 6, 2014, the Manager and the Assistant Manager met with Plaintiff to discuss Plaintiff's sales goals, as part of her ongoing Counseling Notice action plan from April 21, 2014. (Defs.' SUMF ¶45; Pl.'s Dep. 204:2-205:8.) 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."
It is disputed whether Plaintiff directly reported to the Manager, or whether Plaintiff directly reported to the Assistant Manager. (Defs.' SUMF ¶5; PL's Resp. to Defs.' SUMF ¶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 ¶¶8-9, 12; Defs.' Resp. to PL's CSF ¶¶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 ¶¶10-11; Defs.' Resp. to PL' s CSF ¶¶10-11.) 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 CSF ¶12.) Specifically with respect to Arruda, it is disputed whether Arruda showed Plaintiff pornography. (PL's CSF ¶20; Defs.' Resp. to PL's CSF ¶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 facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson, 477 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, 891 F.2d 458; 459 (3d Cir. 1989) (quoting Anderson, 477 U.S. at 250).
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:
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. Basell USA Inc., 512 F.3d 86, 91 (3d Cir. 2008).
Count One of Plaintiff's 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 Phila., 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 *16 (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 Plaintiff's 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. STI 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 56.1(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.
"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.
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 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 Plaintiff's hostile work environment claim, Plaintiff's constructive discharge claim is also similarly deficient on summary judgment.
The Court, therefore, grants Defendants' Motion for Summary Judgment with respect to Plaintiff's 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, 461 F.3d at 341 (quoting Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)).
"In 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. ¶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 action." Id.
Here, Plaintiff satisfies the first and second elements of her prima facie retaliation claim. With respect to the first element, Plaintiff's complaint of harassment to management on May 2, 2014 constituted protected activity under Title VII. With respect to the second element, Plaintiff's 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 Plaintiff's 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 Decl., 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 Decl., Ex. L, at ATT0058.) On May 6, 2014, the Manager and the Assistant Manager met with Plaintiff to discuss her sales goals, as part of her ongoing Counseling Notice action plan from April 21, 2014. (Defs.' SUMF ¶ 45; Pl.'s 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 Decl., 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 ¶ 46.) On that day, Plaintiff clocked in for five minutes and did not work. (Id. ¶48; Johannessen Decl., Ex. I, at ATTO155.) 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 Decl., Ex. I at ATT0155.) Accordingly, Defendants terminated Plaintiff's employment due to her attendance issues. (Defs.' SUMF ¶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 340-41.
In the alternative, even if Plaintiff had established a prima facie case of retalation, 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 of Am., 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 Plaintiff's 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 Phila., 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 Plaintiff's 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.
No. 12-4499, 2014 WL 4350546, at *3 n.3 (D.N.J. Sept. 2, 2014).