NOT FOR PUBLICATION

OPINION

STANLEY R. CHESLER, District Judge.

This matter comes before the Court on the motion for summary judgment, pursuant to FED. R. CIV. P. 56, by Defendants Pratt Industries, Inc. and Pratt Display (collectively, "Pratt"). For the reasons set forth below, Defendants' motion will be granted.

BACKGROUND

This case arises out of an employment dispute. Plaintiff Carmen Castro ("Castro") was first employed by Pratt in 2004, and she was discharged by Pratt in January of 2013. The Complaint states that Plaintiff is a Latina female. Plaintiff filed a Complaint which asserts six counts: 1) racial and national origin discrimination in violation of New Jersey's Law Against Discrimination ("NJLAD"); 2) employment discrimination by reason of gender in violation of NJLAD; 3) retaliation under the NJLAD; 4) discrimination and retaliation in violation of § 1981; 5) unequal pay under New Jersey law; and 6) unequal pay under the Federal Equal Pay Act. Defendants have moved for summary judgment on all counts in the Complaint.

LEGAL STANDARD

I. Summary Judgment

Summary judgment is appropriate under FED. R. CIV. P. 56(a) when the moving party demonstrates that there is no genuine issue of material fact and the evidence establishes the moving party's entitlement to judgment as a matter of law. Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). A factual dispute is genuine if a reasonable jury could return a verdict for the non-movant, and it is material if, under the substantive law, it would affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). "In considering a motion for summary judgment, a district court may not make credibility determinations or engage in any weighing of the evidence; instead, the non-moving party's evidence `is to be believed and all justifiable inferences are to be drawn in his favor.'" Marino v. Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255).

"When the moving party has the burden of proof at trial, that party must show affirmatively the absence of a genuine issue of material fact: it must show that, on all the essential elements of its case on which it bears the burden of proof at trial, no reasonable jury could find for the non-moving party." In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003) (quoting United States v. Four Parcels of Real Property, 941 F.2d 1428, 1438 (11th Cir. 1991)). "[W]ith respect to an issue on which the nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged by `showing' — that is, pointing out to the district court — that there is an absence of evidence to support the nonmoving party's case." Celotex, 477 U.S. at 325.

Once the moving party has satisfied its initial burden, the party opposing the motion must establish that a genuine issue as to a material fact exists. Jersey Cent. Power & Light Co. v. Lacey Township, 772 F.2d 1103, 1109 (3d Cir. 1985). The party opposing the motion for summary judgment cannot rest on mere allegations and instead must present actual evidence that creates a genuine issue as to a material fact for trial. Anderson, 477 U.S. at 248; Siegel Transfer, Inc. v. Carrier Express, Inc., 54 F.3d 1125, 1130-31 (3d Cir. 1995). "[U]nsupported allegations .. . and pleadings are insufficient to repel summary judgment." Schoch v. First Fid. Bancorporation, 912 F.2d 654, 657 (3d Cir. 1990). "A nonmoving party has created a genuine issue of material fact if it has provided sufficient evidence to allow a jury to find in its favor at trial." Gleason v. Norwest Mortg., Inc., 243 F.3d 130, 138 (3d Cir. 2001).

If the nonmoving party has failed "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 issue of material fact,' since a complete failure of proof concerning an essential element of the nonmoving party's case necessarily renders all other facts immaterial." Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex, 477 U.S. at 322-23).

II. Employment Discrimination

A plaintiff alleging discriminatory discharge in violation of the NJLAD may prove her case by direct evidence or by circumstantial evidence. As the New Jersey Supreme Court has explained:

Grande v. Saint Clare's Health Sys., 230 N.J. 1, 16-17 (2017). The McDonnell Douglas test operates as follows:

Raytheon Co. v. Hernandez, 540 U.S. 44, 50 (2003) (citations omitted). The New Jersey Supreme Court has adopted the McDonnell Douglas test for most employment discrimination claims. Victor v. State, 203 N.J. 383, 408 (2010).

If the plaintiff succeeds in establishing a prima facie case, the burden shifts to the defendant to "articulate some legitimate, non-discriminatory reason" for the employer's action. McDonnell Douglas, 411 U.S. 792, 802 (1973). The employer may satisfy the burden by introducing evidence which, taken as true, would allow the factfinder to conclude that there was a nondiscriminatory reason for the unfavorable employment decision. St. Mary's Honor Center v. Hicks, 509 U.S. 502 (1993). The employer need not prove that the tendered reason actually motivated the decision. Texas Dep't of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981). The burden of proving intent remains with the Plaintiff. Id.

If the defendant employer satisfies the burden, then "the plaintiff must `submit evidence from which a factfinder could reasonably either (1) disbelieve the employer's articulated reasons or (2) believe that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the employer's action.'" Fakete v. Aetna, 308 F.3d 335, 338 n.3 (3d Cir. 2002). The plaintiff's evidence rebutting the employer's proffered legitimate reasons must allow the factfinder to infer that each of the employer's proffered nondiscriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action. Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

At this stage, the burden has shifted back to the plaintiff, and the plaintiff must show, by a preponderance of the evidence, that the employer's explanation is pretextual. Id. "The test is whether the plaintiff ultimately persuades the factfinder that the employment decision was caused by bias" and that the real reason for the employer's adverse employment decision is discrimination. Id.

DISCUSSION

I. Defendants' motion for summary judgment

Defendants move for summary judgment on the First Count in the Complaint, for discriminatory discharge on the basis of race and national origin,1 in violation of the NJLAD. Defendants move for summary judgment on Plaintiff's claim that her termination was due to unlawful discrimination, in violation of the NJLAD, on three grounds: 1) Plaintiff cannot establish a prima facie case; 2) the termination was based on legitimate and non-discriminatory reasons; and 3) Plaintiff cannot show that these reasons are a pretext for illegal discrimination.

Defendants first argue that Plaintiff cannot establish a prima facie case. "The evidentiary burden at the prima facie stage is rather modest: it is to demonstrate to the court that plaintiff's factual scenario is compatible with discriminatory intent — i.e., that discrimination could be a reason for the employer's action." Zive v. Stanley Roberts, Inc., 182 N.J. 436, 447 (2005) (citation omitted). Defendants contend that Plaintiff cannot meet this modest burden.

In opposition, Plaintiff argues that she has established a prima facie case that meets the requirements stated in Smith v. City of Allentown, 589 F.3d 684, 689 (3d Cir. 2009).2 In particular, Plaintiff argues that she was replaced by two Caucasian males. In reply, Defendants argue that Plaintiff has pointed to no evidence of record that she was replaced by two Caucasian males. Defendants have overlooked both the "Statement of Facts" section, as well as Plaintiff's responsive Rule 56.1 statement, both of which cite specific evidence that she was replaced in her job responsibilities by two Caucasian males. (Pl.'s Resp. to Defs.' 56.1 Stmt. § 92.) In view of the "modest" evidentiary burden required by the New Jersey Supreme Court at this step of the analysis, this Court finds that Plaintiff has made out a prima facie case of discriminatory discharge.

Defendants next argue that they are entitled to judgment on the First Count because they have articulated legitimate, non-discriminatory reasons for Plaintiff's discharge, and Plaintiff has no evidence that these reasons are a pretext for discrimination. Defendants point to evidence which, in short, supports Defendants' contention that Plaintiff was fired for inconsistent performance and disruptive behavior. Defendants place particular emphasis on a problem which occurred in late 2012 when, Defendants contend, Plaintiff was responsible for the lateness of an order, which led to complaints from the affected customer, L'Oreal. Defendants offer as evidence an email from Laurie Houlihan (at L'Oreal) to John Keck (at Pratt), dated November 21, 2012, which states:

(Fox Cert. Ex. M at 1.) Defendants contend that, subsequent to this situation, Keck met with Plaintiff to discuss her performance, and presented her with this summary:

(Fox Cert. Ex. L.)

Defendants also point to the testimony of co-worker James Valero, that Plaintiff emitted a loud "explosion of cursing" on a daily basis, and that Plaintiff's customers would call him up to complain about Plaintiff's argumentativeness. (Valero Tr. 76:9-77:8.) Defendants contend that they terminated Plaintiff's employment on January 5, 2013 because of all of these issues.

The burden now shifts back to Plaintiff, as the Third Circuit has explained:

Willis v. UPMC Children's Hosp. of Pittsburgh, 808 F.3d 638, 644-45 (3d Cir. 2015) (citations omitted). Plaintiff in this case has followed the first approach, attempting to show that the employer's explanation is not worthy of credence. First, Plaintiff challenges the testimony from Connors and from Valero:

(Pl.'s Opp. Br. 14.) Plaintiff does not support these assertions with any citations to evidence of record. Plaintiff has pointed to nothing in the testimony of either Connors or Valero that relates to racial or ethnic stereotypes. Even if it is true that Plaintiff interpreted her co-workers' complaints as commentary on her race, gender, and national origin, she has not pointed to any evidence from which a reasonable jury could come to the same conclusion. Finally, the argument that earlier performance evaluations of Plaintiff had not raised any complaints about her workplace behavior (supported by Plaintiff's sworn statement) is irrelevant to the question of whether the explanation — that Plaintiff mishandled the L'Oreal account in the fall of 2012 — is worthy of credence.3

Plaintiff next raises the point that Defendants in actuality never lost any L'Oreal business. In support, Plaintiff's Rule 56.1 statement cites the Connors deposition testimony, but the cited section (Connors Dep. 130:21-24) does not support that inference: although Connors testified that Defendants continued to do business with L'Oreal after Plaintiff was fired, he was unable to answer the question of whether any business had been lost. (Connors Dep. 130:21-24.) Plaintiff points to no evidence which tends to show that Defendants' explanation that Plaintiff mishandled the L'Oreal account in the fall of 2012 is not worthy of credence.

Plaintiff has thus failed to carry her burden at the third step of the McDonnell Douglas analysis: she has failed to offer evidence from which a reasonable jury could conclude that the employer's reasons for terminating her are not worthy of credence. The only even slightly meritorious argument she makes is that previous performance reviews had not alleged any workplace misbehavior. This Court finds that this, without more, is not sufficient to persuade a reasonable jury that the explanation involving workplace misbehavior is unworthy of credence. Moreover, Plaintiff has offered no evidence or argument that the explanation involving the mishandling of the L'Oreal account is not worthy of credence. As such, she has failed to defeat Defendants' motion for summary judgment on the First Count. As to the First Count, Defendants' motion for summary judgment will be granted.

Defendants also move for summary judgment on the Second Count, for discrimination on the basis of gender, in violation of the NJLAD. Again, the Second Count in the Complaint is pled generally and does not identify the misconduct alleged to constitute discrimination in violation of the NJLAD. Plaintiff's opposition brief contains only one section which addresses her NJLAD claims in the First and Second Counts. This section, already discussed, does not offer any additional argument or evidence about gender discrimination. In opposing the motion for summary judgment on the Second Count, Plaintiff relies on the same arguments — that Defendants' explanations are not worthy of credence and are a pretext for illegal gender discrimination — that this Court has already considered and rejected. As such, Plaintiff has failed to defeat Defendants' motion for summary judgment on the Second Count. As to the Second Count, Defendants' motion for summary judgment will be granted.

Plaintiff's opposition brief withdraws her retaliation claims. The Complaint contains two retaliation claims: the Third Count (violation of NJLAD) and the Fourth Count (violation of § 1981). Because Plaintiff has withdrawn these claims, as to the Third and Fourth Counts, Defendants' motion for summary judgment will be granted.

Lastly, Defendants move for summary judgment on the Fifth and Sixth Counts, for violation of the New Jersey Equal Pay Act ("NJEPA"),4 N.J. Stat. Ann. § 34:11-56.1, and the federal Equal Pay Act ("EPA"), 29 U.S.C. § 206(d). Defendants move for summary judgment on the ground that Plaintiff cannot make out a prima facie case. The summary judgment burden then shifts to Plaintiff to point to evidence sufficient to persuade a reasonable jury to find the elements of a prima facie case.

The Third Circuit has summarized the legal framework for deciding an EPA claim as follows:

Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000) (citation omitted). Thus, to defeat Defendants' motion for summary judgment, Plaintiff must point to evidence of record that demonstrates that an employee of the opposite sex was paid differently for performing work of substantially equal skill, effort and responsibility, under similar working conditions. Plaintiff's opposition brief, however, gives brief and confusing treatment to the effort to show the evidence that supports her prima facie case. After a detailed review of the law, and a recap of some of her employment history, Plaintiff offers this section, here quoted in its entirety:

(Pl.'s Opp. Br. 19.) This section not only fails to point to evidence sufficient to demonstrate that Plaintiff was paid less for performing equal work than a male co-worker, but it asserts that Plaintiff was uniquely situated rather than similarly situated: "Plaintiff was unique in that she actually performed the work of two positions (duties split between two white males once she was fired) and she acted as the project manager for her own sales account."5 (Id.) Even setting aside that the argument contains no citations to record evidence, no reasonable jury could hear this and find that an employee of the opposite sex was paid differently for performing work of substantially equal skill, effort and responsibility, under similar working conditions.

Plaintiff has failed to show that she can make out a prima facie case of a violation of the EPA. As to the Sixth Count, Defendants' motion for summary judgment will be granted.

As to the NJEPA claim, the Fifth Count, the parties dispute the standard that this Court should apply to decide whether Plaintiff has made out a prima facie case. Defendants contend that EPA claims and NJEPA claims "are analyzed under the same rubric." Plaintiff contends that she has the option of using either the EPA standards for the prima facie case, or Title VII standards. This Court need not resolve this dispute because, even if Plaintiff is correct and she need only satisfy the Title VII requirements for a prima facie case, she has not met them. Plaintiff contends that, to make out a prima facie case under Title VII, she must show that her work was "similar" to a comparable employee's work, but with inferior pay. Grigoletti v. Ortho Pharm. Corp., 118 N.J. 89, 109 (1990); Bitsko v. Main Pharmacy, Inc., 289 N.J.Super. 267, 273 (N.J. Super. Ct. App. Div. 1996).

Plaintiff has not pointed to evidence that her job was similar to the job of any comparator. Her opposition brief cites no evidence and, in fact, makes no case that she and a comparator had similar jobs.6 Rather, as already quoted, the brief asserts that Plaintiff was uniquely situated in her job responsibilities, and states: "none of these comparators was responsible for both the sales and project management of an account." (Pl.'s Opp. Br. 19, 20.) If Plaintiff contends that her job was unique, how can she also contend that her job is similar to another person's? These facts make this case similar to one Plaintiff relies on, Puchakjian v. Twp. of Winslow, 804 F.Supp.2d 288, 301 (D.N.J. 2011). In Puchakjian, the court focused on the plaintiff's statements that her job responsibilities were not similar to the duties of her comparators, and stated that "on that basis alone, Defendant would be entitled to summary judgment." Id. at 302.

Nor does Plaintiff's Rule 56.1 Statement of Material Facts point to evidence that might persuade a jury that she and a comparator have similar. To the contrary, it states:

(Pl.'s 56.1 Resp. to ¶ 97.) Thus, not only has Plaintiff not presented a prima facie case that similar jobs have been compensated unequally, the points she has made tend to demonstrate that her job was not similar to the jobs of her co-workers. Thus, even if Plaintiff is correct that the Court evaluates her NJEPA prima facie case under the law of Title VII, she has not satisfied the Title VII requirements for a prima facie case of unequal pay. As to the Fifth Count, Plaintiff has failed to defeat Defendants' motion for summary judgment. As to the Fifth Count, the motion for summary judgment will be granted.

Defendants' motion for summary judgment is granted in its entirety.