OPINION

RENÉE MARIE BUMB, District Judge.

I. INTRODUCTION

Plaintiff Alok Gulati ("Plaintiff") filed this lawsuit against the United States Secretary of Transportation, Elaine L. Chao, ("Defendant"), alleging employment discrimination based on Plaintiff's race, religion, and national origin and for retaliation and a hostile work environment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000 et. seq. ("Title VII").

Before the Court is Defendant's motion for summary judgment on all claims, pursuant to Fed. R. Civ. P. 56. [Docket Item 16.] Plaintiff opposes the motion [Docket Item 21], and Defendant has submitted a reply brief. [Docket Item 30.] For the reasons set forth below, the Court will grant Defendant's motion in part and deny it in part.

II. BACKROUND1

Plaintiff has worked as an engineer for the Federal Aviation Administration ("FAA"), a division of the United States Department of Transportation, since at least June of 1994 in the William J. Hughes Technical Center ("Tech Center") in Atlantic City, New Jersey. Plaintiff self-identifies as an Asian man who was born in India and who practices the Hindu religion. Eduardo Colon-Madera, one of Plaintiff's coworkers during the times relevant to this suit, self-identifies as a Hispanic, Puerto Rican man and a Catholic. Radame Martinez, who supervised both Plaintiff and Mr. Colon-Madera at the Tech Center during the times relevant to this suit, self-identifies as a white, Hispanic man who was born in Puerto Rico and who is a non-practicing Catholic.2

A. The Level 14 Position Application Process

On May 20, 2009, the FAA posted two vacancy announcements for a single new position at the Tech Center to oversee a "Voice over Internet Protocol" ("VOIP") test and evaluation project, which would be paid at the General Schedule Level 14 paygrade ("the Level 14 position").3 The vacancy announcements were written by Mr. Martinez, who would serve as the selecting official for the Level 14 position. The vacancy announcements delineated four areas of "Knowledge, Skills and Abilities" ("KSAs") for which applicants were requested to provide specific information. The four KSAs included for the Level 14 position were:

Applications for the Level 14 position were due on June 17, 2009 and initial review of the application packets was undertaken by the Tech Center's Human Resources Department ("HR"). On July 6, 2009, HR sent Mr. Martinez a list of those applications that met the minimum requirements of the Level 14 position. Both Plaintiff's and Mr. Colon-Madera's applications were included on HR's list. FAA's policy regarding promotions at the time of the events in question did not require a selecting official to convene an interview panel or to interview any of the applicants as part of the decision-making process. Mr. Martinez did not convene such a panel or conduct any interviews of the applicants. After evaluating the applications remaining after HR's initial review, Mr. Martinez reviewed each applicant's responses to each KSA listed in the vacancy announcements and assigned each KSA in each application an evaluation of "superior," "satisfactory," or "barely acceptable" and included a brief written rationale therefor. Mr. Martinez assigned an evaluation of "satisfactory" for all four KSAs in Plaintiff's application. Mr. Martinez assigned Mr. Colon-Madera evaluations of "superior" for KSAs 1 and 2 and "satisfactory" for KSAs 3 and 4. After scoring the applications, Mr. Martinez determined that Mr. Colon-Madera had the highest score and recommended him for the position. A senior official at FAA headquarters then approved Mr. Colon-Madera's promotion, which became effective on August 25, 2009. Plaintiff learned that he was not selected for the Level 14 position on or about August 27, 2009.

B. Plaintiff's EEO Complaint

On October 5, 2009, Plaintiff contacted a Department of Transportation Equal Employment Opportunity ("EEO") counselor. On February 4, 2010, Plaintiff filed a two-count formal EEO complaint, alleging the following:

Plaintiff later amended his EEO complaint to include the following additional allegations:

Administrative Law Judge Julie Procopiow Todd ("ALJ Todd") ultimately granted summary judgment in favor of Defendant with respect to both counts of Plaintiff's EEO complaint, finding that Plaintiff "has failed to establish, by a preponderance of the evidence, that he was discriminated against based on his race, national origin, religion, and/or in reprisal for prior EEO activity."4

Plaintiff filed this Complaint on August 18, 2017 [Docket Item 1].5 After conclusion of discovery, Defendant moved for summary judgment [Docket Item 16], to which the Court now turns.

III. STANDARD OF REVIEW

Pursuant to Fed. R. Civ. P. 56(c), a motion for summary judgment will be granted if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine dispute as to any material fact and that the moving party is entitled to judgment as a matter of law. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). "[S]ummary judgment may be granted only if there exists no genuine issue of material fact that would permit a reasonable jury to find for the nonmoving party." Miller v. Ind. Hosp., 843 F.2d 139, 143 (3d Cir. 1988). All facts and inferences must be construed in the light most favorable to the non-moving party. Peters v. Del. River Port Auth., 16 F.3d 1346, 1349 (3d Cir. 1994).

In deciding a motion for summary judgment, the court's role is not to evaluate the evidence and decide the truth of the matter, but to determine whether there is a genuine issue for trial. Anderson, 477 U.S. at 249. Credibility determinations are the province of the factfinder, and thus at the summary judgment stage credibility issues should be resolved against the moving party. Big Apple BMW v, Inc. v. BMW of N. Am., Inc., 974 F.2d 1358, 1363 (3d Cir. 1992); Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir. 1983). However, "[t]he mere existence of a scintilla of evidence," without more, will not give rise to a genuine dispute for trial. Anderson, 477 U.S. at 252. In the face of such evidence, summary judgment is still appropriate "[w]here the record ... could not lead a rational trier of fact to find for the nonmoving party." Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986).

IV. DISCUSSION

Plaintiff's Complaint alleges three separate claims: employment discrimination on the basis of race, religion, or national origin (Count One), retaliation (Count Two), and hostile work environment (Count Three). (See [Docket Item 1].) Defendant seeks summary judgment in her favor with regard to each of the three counts contained in Plaintiff's Complaint. The Court shall address these in the order that they were presented by the parties in their briefing.

A. Count One: Discrimination on the Basis of Race, Religion, or National Origin

Title VII provides, in pertinent part, that it shall be unlawful for an employer:

42 U.S.C. § 2000e-2. Under Title VII, there are two methods for a plaintiff to meet its burden to establish that discriminatory animus resulted in an adverse employment action: direct evidence and circumstantial evidence. Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 267-68 (3d Cir. 2010).

"Direct evidence of discrimination must be `so revealing of [discriminatory] animus that it is unnecessary to rely on the [McDonnell Douglas] burden-shifting framework, under which the burden of proof remains with the plaintiff.'" Anderson, 621 F.3d at 269 (quoting Walden v. Georgia-Pacific Corp., 126 F.3d 506, 512 (3d Cir.1997)). Such evidence must "demonstrate[] that the `decisionmakers placed substantial negative reliance on an illegitimate criterion in reaching their decision.'" Walden, 126 F.3d at 513 (quoting Price Waterhouse v. Hopkins, 490 U.S. 228, 277 (1989) (O'Connor, J., concurring)). Direct evidence must first be strong enough "to permit the factfinder to infer that a discriminatory attitude was more likely than not a motivating factor in the [defendant's] decision." Id. (internal quotation marks and alteration omitted). Second, direct evidence must be connected to the decision plaintiff challenges. Id. at 515-16.

A claim brought under circumstantial evidence is governed by the McDonnell Douglas burden-shifting paradigm. See McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802-03 (1974); see also Scheidemantle v. Slippery Rock State System of Higher Educ., 470 F.3d 535, 539 (3d Cir. 2006). To prevail under this framework, a plaintiff has the initial burden of showing a prima facie case for discrimination. The plaintiff must demonstrate: (1) he was a member of a protected class; (2) he was qualified for the position; (3) he suffered an adverse employment action; and (4) the adverse action occurred under circumstances that gave rise to an inference of discrimination. Jones v. Sch. Dist. Of Philadelphia, 198 F.3d 403, 412 (3d Cir. 1999). A plaintiff may establish the fourth element and show an inference of discrimination through: "evidence of comparators . . . or [by] rely[ing] on circumstantial evidence that otherwise shows a causal nexus between his membership in a protected class and the adverse employment action. Greene v. Virgin Islands Water & Power Auth., 557 Fed. App'x 189, 195 (3d Cir. 2014) (citing Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 n.7 (3d Cir. 2003)).

1. Direct evidence of discrimination

Plaintiff argues that certain commends allegedly made by Mr. Martinez to Plaintiff constitute direct evidence of discrimination based on religion or national origin.6 (See Complaint [Docket Item 1], ¶¶ 16-19.) The parties agree that two of the comments at issue were raised before the Honorable Noel L. Hillman, U.S.D.J, in a case brought by Plaintiff's brother, Rajnish Gulati, regarding this same hiring decision, who discussed them in relation to a motion for summary judgment in that case: Gulati v. LaHood, No. 12-5298, 2015 WL 3970136 (D.N.J. June 29, 2015). As Judge Hillman summarized:

Gulati v. LaHood, 2015 WL 3970136, at *5 (internal quotations and citations omitted). Judge Hillman then cited the legal standard for this kind of alleged direct evidence:

Id. Judge Hillman then went on to find that Mr. Martinez was the alleged speaker in both instances and that it was he who made the decision regarding the Level 14 position. Id. Judge Hillman went on to further find that both statements were temporally proximate to the adverse employment action; the first comment was made roughly two months before the adverse action and the second was made shortly after the adverse action. Id.

With regard to the first comment, Judge Hillman found:

Id. With regard to the second comment, Judge Hillman found:

Id. at *6. Judge Hillman then further found that the plaintiff had, through this direct evidence, established a sufficient claim for religious discrimination under Title VII to deny the defendant's request for summary judgment. Id.

As Judge Hillman held in the prior case, this Court finds that the first alleged statement is an isolated and remote stray remark about Plaintiff's national origin. Plaintiff emphasizes in his papers that this conversation allegedly took place on the day that applications closed for the Level 14 position. (Pl.'s Opp'n [Docket Item 21], 6.) However, while the conversation allegedly took place in temporal proximity to the deadline for applying to the Level 14 position, there is no evidence that the conversation was on the topic of the Level 14 position or that the position was on the mind of Mr. Martinez at the time.

Defendant urges this Court to come to a different conclusion than Judge Hillman did regarding the second comment, because "when placed in its entire context, [the second alleged statement] serves as neither direct evidence of discrimination nor evidence establishing that the reasons for the selection are pretext for discrimination." (Pl.'s Br. [Docket Item 16-2], 5 n.1.) However, as described in Section II. supra, genuine disputes of material fact exist regarding whether Mr. Martinez knew of Plaintiff's religious affiliation at the time he allegedly made the second comment. In conjunction with the content of the alleged second comment, a reasonable jury could find that this constitutes direct evidence of discrimination.

In this case, Plaintiff asserts that there is a third statement by Mr. Martinez that constitutes direct evidence of discrimination on the basis of national origin that was not raised before Judge Hillman in the prior case. (See Complaint [Docket Item 1], ¶ 17.) The allegation put forth by Plaintiff is that on an unknown date in 2009, Mr. Martinez "in Plaintiff's presence stated that Jews and Indians are wealthy compared to the rest of society. (Id.) However, it appears that Plaintiff has withdrawn this allegation. (See Def's SMF [Docket Item 16-1], ¶¶ 97-98; Pl's RSMF [Docket Item 19], ¶¶ 97-98.) Even if the claim were not withdrawn, this third comment is even more remote than the first statement, supra, as Plaintiff never identifies the exact date or any of the context for this alleged third statement. Therefore, it too would be deemed by the Court to be a stray comment unrelated to the Level 14 position and insufficient to sustain a claim under a direct evidence theory of discrimination.

For these reasons, the Court shall grant Defendant's motion insofar as it seeks summary judgment as to a direct evidence theory of race and national origin discrimination and shall deny the motion with respect to a direct evidence theory of religious discrimination.

2. Circumstantial evidence of discrimination

a. Prima facie case

Defendant concedes that Plaintiff has established his prima facie case for religious discrimination. (Def.'s Br. [Docket Item 16-2], 5 n.2.) Therefore, the Court shall only analyze Plaintiff's prima facie case with respect to his allegations of discrimination based on race and national origin.

Defendant further concedes that Plaintiff has satisfied prongs 1, 2, and 3 of his prima facie case for discrimination on the basis of race or national origin, though Defendant contends that Plaintiff cannot meet his burden as to prong 4. (Id. at 8.) Therefore, the Court shall restrict its analysis of Plaintiff's prima facie case to prong 4 of his race and national origin discrimination theories.

Defendant argues that the minimal alleged comments regarding Plaintiff's race and national origin, described supra, are stray remarks that are insufficient to give rise to an inference of discrimination. (Id. at 9 (citing Vasbinder v. Sec'y Dep't of Veterans Affairs, 487 F. App'x 746, 749-50 (3d Cir. 2012)).) The Court agrees. As an initial matter, neither the first nor the third statement, analyzed supra, mentioned Plaintiff's self-identified race (Asian), therefore they cannot give rise to an inference of racial discrimination. As for discrimination on the basis of national origin, as above, these are only two stray remarks unconnected to the complained of employment action. Plaintiff must provide a greater causal link between the adverse action and the allegedly discriminatory animus in order to establish prong 4 of his prima facie case.

Plaintiff attempts to salvage these prima facie claims by asserting that another Asian colleague, Mr. Nguyen, also had negative interactions with Mr. Martinez. (See Pl.'s Opp'n [Docket Item 21], 15 (citing Nguyen Dec. [Docket Item 22]).) Mr. Nguyen's declaration asserts that he is Asian, but does not indicate that his national origin is Indian, therefore this declaration cannot bolster Plaintiff's prima facie case for discrimination on the basis of national origin. Regarding racial discrimination, Mr. Nguyen declares that he has had a number of requests denied by Mr. Martinez, but he does not provide any evidence that the complained of treatment is based on racial considerations other than Mr. Nguyen's bare belief. (See generally Nguyen Dec. [Docket Item 22].) This is insufficient to establish prong 4 of Plaintiff's prima facie case. A plaintiff's subjective belief that he was the victim of discrimination, without more, is insufficient to draw an inference of actual discrimination. See DeMary v. Kennedy Health Sys., No. 11-5984, 2014 WL 3748591, at *9 (D.N.J. July 30, 2014) ("it is well-established that a plaintiff's subjective `belief or feeling that [s]he was the victim of disparate treatment is insufficient, standing alone, to preclude judgment as a matter of law.'" (quoting Jones v. Sch. Dist. of Phila., 19 F.Supp.2d 414, 420 (E.D. Pa. 1998), aff'd, 198 F.3d 403 (3d Cir. 1999))). The same holds true for the subjective belief of third-parties. Without substantiation of such subjective beliefs, Plaintiff cannot establish prong 4 of his prima facie case. Therefore, the Court shall grant summary judgment in Defendant's favor with respect to theories of discrimination based on race or national origin supported by circumstantial evidence.

b. Defendant's proffered non-discriminatory reason for the adverse employment action

Defendant's proffered non-discriminatory reason for selecting Mr. Colon-Madera for the Level 14 position rather than Plaintiff is that Mr. Colon-Madera was deemed more qualified under the objective criteria in the application process, including being ranked higher in the four KSAs, described supra. (See Def.'s Br. [Docket Item 16-2], 10-22.) The Court finds that the rationale proffered by Defendant satisfies her burden and now the burden shifts back to Plaintiff to show that this proffered rationale is in fact pretext to discrimination.

c. Pretext

Under the McDonnell Douglas framework, when a defendant offers a legitimate nondiscriminatory reason for its employment action at the summary judgment stage, "the plaintiff generally must submit evidence which: 1) casts sufficient doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder could reasonably conclude that each reason was a fabrication; or 2) allows the factfinder to infer that discrimination was more likely than not a motivating or determinative cause of the adverse employment action." Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994).

The ultimate issue remains whether discriminatory animus motivated the employer. Thus, to show pretext under the first prong, the Plaintiff "must demonstrate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered legitimate reasons for its actions that a reasonable factfinder could rationally find them unworthy of credence." Jones, 198 F.3d at 413. Under the second prong, Plaintiff may point to evidence that the "employer has previously discriminated against [the plaintiff], that the employer has previously discriminated against other persons within the plaintiff's protected class, or that the employer has treated more favorably similarly situated persons not within the protected class." Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 645 (3d Cir. 1998) (citing Fuentes, 32 F.3d at 765).

i. Religion

With respect to Plaintiff's allegations of religious discrimination, the second statement analyzed, supra, which the Court found to constitute direct evidence of discrimination, if believed by a reasonable finder of fact, would permit the inference that religious discrimination was more likely than not a motivating factor in Mr. Martinez's decision not to select Plaintiff for the Level 14 position. Therefore, this portion of Defendant's motion will be denied.

ii. Race and National Origin

Even if Plaintiff had made his prima facie showing regarding circumstantial evidence of discrimination on the basis of race or national origin, which the Court has already found he has not, Plaintiff does not proffer sufficient evidence to allow a reasonable finder of fact to conclude that Defendant's proffered reason was a fabrication nor to allow such a factfinder to reasonably infer that discrimination was more likely than not a motivating or determinative cause of Mr. Martinez's nonselection for the Level 14 position.

As explained, supra, Mr. Martinez's two alleged comments regarding Plaintiff's national origin were only stray remarks and Mr. Nguyen's declaration does not provide any additional evidence of discriminatory animus, but rather only illustrates Mr. Nguyen's own subjective belief that Mr. Martinez is motivated by discriminatory intent, without any substantiation. Plaintiff alleges further incidents of Mr. Martinez treating Plaintiff in a way that Plaintiff would prefer not to be treated, but Plaintiff does not provide any further support for his allegation that this treatment was the result of animus against Plaintiff on the basis of his race or national origin. (See Pl.'s Opp'n [Docket Item 21], 15-23.) Plaintiff's burden at this stage is not to show that he disliked Mr. Martinez's treatment of him, but rather to show that Mr. Martinez's actions were due to improper animus. Without further evidence of Mr. Martinez's allegedly improper motive, Plaintiff is unable to establish that Defendant's proffered reason for selecting Mr. Colon-Madera is only pretext for discrimination against Plaintiff on the basis of his race or national origin.

Plaintiff further argues that he can establish that Defendant's stated reason for choosing Mr. Colon-Madera is a fabrication based on Mr. Martinez's social interactions with Mr. Colon-Madera and Mr. Martinez's choice not to discuss with HR whether an independent selecting body should determine who would fill the Level 14 position. (Id.) However, nowhere does Plaintiff cite to any legal authority that supports the contention that these facts alone can meet Plaintiff's burden for showing pretext. (See generally id.) Rather, evidence of social bond between Mr. Martinez and Mr. Colon-Madera may in fact undermine Plaintiff's contention that the selection was made in an atmosphere of racial or national origin bias, because any preference that Mr. Martinez may show for Mr. Colon-Madera may actually be rooted in their individual social bond rather than in an alleged underlying bias in favor of people of a similar race or national origin. Whatever the extent of Mr. Martinez's social bond with Mr. Colon-Madera, it is irrelevant in the context of Plaintiff's burden to show pretext, unless it is connected with evidence of bias on the basis of race or nationality. Aside from noting that Mr. Martinez and Mr. Colon-Madera are of the same nationality and both speak Spanish, Plaintiff does not provide any evidence that their social bond (to whatever extent it exists) is based on a categorical preference for Spanish-speaking Puerto Rican people or on a dislike for Asian people or people of Indian origin.

Regarding Plaintiff's contention that HR should have been consulted about the possibility of putting together an independent selection committee for the Level 14 position, Plaintiff has not proffered any evidence that HR would have encouraged Mr. Martinez to establish such a body had he inquired of them, nor has he cited to any case law that would show that evidence of such would meet his burden to establish pretext. (See generally id.) Therefore, the Court also finds that Plaintiff has failed to show that this argument is relevant to his burden to prove that Defendant's proffered nondiscriminatory reason for selecting Mr. Colon-Madera is pretext for an actual desire to discriminate against Plaintiff because of his race or national origin.

B. Count Three: Hostile Work Environment

Plaintiff's third claim is for creation of a hostile work environment as a result of Plaintiff's protected EEO activities. (See Complaint [Docket Item 1], ¶¶ 43-44.) Plaintiff has withdrawn this claim with respect to all exemplary incidents that allegedly took place prior to October 8, 2019. (See Pl.'s Opp'n [Docket Item 21], 25.) The alleged exemplary incidents that Plaintiff continues to assert in support of his hostile work environment claim are:

(Id. at 26.)

"To establish a hostile working environment claim against an employer, a plaintiff must prove: (1) the employee suffered intentional discrimination on the basis of race, national origin or religion, (2) the discrimination was pervasive and regular, (3) the discrimination detrimentally affected the plaintiff, (4) the discrimination would detrimentally affect a reasonable person who belonged to the same protected class, and (5) the existence of respondeat superior liability." Spence v. LaHood, No. 11-3972, 2013 WL 355913, at *3 (D.N.J. Jan. 29, 2013) (Simandle, C.J.) (citing Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir.2009)). The "sine qua non of a hostile work environment claim is a `workplace . . . permeated with discriminatory intimidation, ridicule, and insult, that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment[.]'" McKinnon v. Gonzales, 642 F.Supp.2d 410, 421 (D.N.J. 2009) (quoting Nat'l R.R. Passenger Corp. v. Morgan, 536 U.S. 101, 116 (2002)). The discriminatory conduct "must be extreme to amount to a change in the terms and conditions of employment." Feeney v. Jeffries & Co., Inc., No. 09-2708, 2010 WL 2629065, at *5 (D.N.J. June 28, 2010) (quoting Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998)).

Burgess v. Dollar Tree Stores, Inc., 642 F. App'x 152, 155 (3d Cir. 2016) (affirming a district court decision granting defendant's request for summary judgment where multiple allegedly hostile events took place in a single month, including one nonconsensual touching and one physical threat). "[O]rdinary tribulations of the workplace, such as the sporadic use of abusive language, gender-related jokes, and occasional teasing" do not give rise to liability under Title VII. Faragher, 524 U.S. at 788.

Defendant contends that the events described by Plaintiff do not rise to the level of "severe and pervasive" and do not have any causal connection to retaliatory animus. (See Def.'s Br. [Docket Item 16-2], 28-39; Def.'s Reply [Docket Item 30], 11-13.) Defendant also asserts that a number of the remaining alleged exemplary incidents do not even represent true grievances on the part of Plaintiff. (Id.)

With regard to alleged incident "s", Plaintiff admits that he may have in fact attended the ISO training in question, though not with Mr. Martinez's specific permission. (See Def.'s SMF [Docket Item 16-1], ¶¶ 145-46; Pl.'s RSMF [Docket Item 19], ¶¶ 145-46.) With regard to alleged incident "t", Plaintiff admits that his application to the program was accepted, but that the training was ultimately cancelled due to budgetary constraints. (See Def.'s SMF [Docket Item 16-1], ¶ 147; Pl.'s RSMF [Docket Item 19], ¶ 147.) With regard to alleged incident "u", Plaintiff admits that he was granted the leave that he requested. (See Def.'s SMF [Docket Item 16-1], ¶ 149; Pl.'s RSMF [Docket Item 19], ¶ 149.) With regard to alleged incident "w", the comments at issue were that Plaintiff should be in the lab more often and that Plaintiff should sometimes replace certain long emails with short conversations. (See Def.'s SMF [Docket Item 16-1], ¶ 152; Pl.'s RSMF [Docket Item 19], ¶ 152.) With regard to alleged incident "z", as with alleged incident "t", Plaintiff was selected for the program, but the entire event was cancelled due to budgetary concerns. (See Def.'s SMF [Docket Item 16-1], ¶ 153; Pl.'s RSMF [Docket Item 19], ¶ 153.)

The remaining instances allege one negative interaction (alleged incident "l"), one missed meeting (alleged incident "v"), one instance of being asked (but not required) to do physical labor, regardless of Plaintiff's bad back (alleged incident "x"), and one instance of Plaintiff being yelled at (alleged incident "bb"). These nine remaining alleged incidents took place over the course of fourteen months, and once placed in the admitted context above, the Court cannot find, even after taking all reasonable inferences in favor of Plaintiff, that such a combination of alleged incidents constitute "severe and pervasive" hostility in the workplace, or that they somehow altered Plaintiff's conditions of employment. Rather, the Court finds that these alleged incidents are each separately and all in combination no more than the "ordinary tribulations" of the workplace. Therefore, the Court shall grant summary judgment in favor of Defendant as to Count Three.

C. Count Two: Retaliation

Plaintiff's second claim is for retaliation as a result of his EEO counseling and complaint ("standalone retaliation"), separate from his claim for a retaliatory hostile work environment, discussed in Section IV.B., supra. (See Complaint [Docket Item 1], ¶¶ 33-42.) As in his hostile work environment claim, Plaintiff has withdrawn his retaliation claim as to all incidents prior to October 8, 2009. (See Pl.'s Opp'n [Docket Item 21], 26, 30.) Defendant argues that Plaintiff is barred from pursuing a claim for retaliation because he failed to exhaust his administrative remedies with respect to a claim for standalone retaliation prior to filing this suit. (See Def.'s Br. [Docket Item 16-2], 39-43.) Plaintiff responds by asserting that he has in fact exhausted his administrative remedies and that a claim for standalone retaliation was encompassed by the complaint before ALJ Todd and by her decision relating thereto. (See Pl.'s Opp'n [Docket Item 21], 30-35.)

"[A] federal employee seeking redress for unlawful workplace discrimination and/or retaliation must first exhaust administrative remedies against the federal employer prior to filing suit in federal court." Marley v. Donahue, 133 F.Supp.3d 706, 715 (D.N.J. 2015) (citing Wilson v. MVM, Inc., 475 F.3d 166, 173 (3d Cir. 2007)).

Handle v. Brennan, No. 15-8071, 2019 WL 168830, at *3 (D.N.J. Jan. 11, 2019).

Plaintiff admits in his own briefing that only two claims were presented to ALJ Todd in the EEO proceeding before her: (1) nonselection for the Level 14 position and (2) hostile work environment based on race, national origin, religion, or reprisal for protected EEO activity. (See Pl.'s Opp'n [Docket Item 21], 32-33 (quoting Claims Presented, Pl.'s Ex. DD [Docket Item 25-1], 37-38).)

On their face, these claims presented to ALJ Todd do not include a standalone claims for retaliation; they include the basis for Count One (discriminatory nonselection) and Count Three (hostile work environment) of the present Complaint. (See id.) No evidence has been provided to the Court in the context of the present motion that Plaintiff ever raised a standalone retaliation claim in the underlying administrative action before ALJ Todd. Therefore, the Court shall grant summary judgment in favor of Defendant with respect to Count Two of the Complaint.

Plaintiff attempts to salvage Count Two of his complaint by arguing that he is entitled to a modification of the exhaustion requirement, because his standalone retaliation claim could "`reasonably be expected to grow out of the initial charge of discrimination.'" (Id. at 33 (quoting Ostapowicz v. Johnson Bronze Co., 541 F.2d 394, 399 (3d Cir. 1976)).) However, all of the cases cited by Plaintiff in support of this assertion only refer to additional acts of alleged discrimination that took place after the filing of the initial EEO complaint being encompassed by the EEO investigation and therefore being rightly included in a district court complaint. See Waiters v. Parsons, 729 F.2d 233, 237 (3d Cir. 1984); Parsons v. City of Phila. Coordinating Office of Drug & Abuse Programs, 822 F.Supp. 1181, 1184 (E.D. Pa. 1993); Ostapowicz, 541 F.2d at 398-99. Plaintiff has not directed the Court to any legal authority for the proposition that he may plead, in a district court complaint, a cause of action that was not pled in the preceding EEO action. (See generally Pl.'s Opp'n [Docket Item 21].) Therefore, the Court must grant summary judgment to Defendant as to Count Two of the Complaint.

Furthermore, even if the Court were to hold that Plaintiff had exhausted his administrative remedies as to Count Two, which the Court will not, Plaintiff also fails to establish the causal link necessary to make his prima facie case of retaliation.

The Third Circuit has previously held that

E.E.O.C. v. Allstate Ins. Co., 778 F.3d 444, 449 (3d Cir. 2015), as amended on reh'g in part (Mar. 26, 2015).

Plaintiff's allegations in Count Two and in the briefing for this motion boil down to an assertion that Mr. Martinez and Mr. Colon-Madera knew of Plaintiff's EEO activities and then engaged in the allegedly adverse employment actions detailed in Section IV.B., supra.7 However, there is no evidence presented that any of these alleged adverse actions had a specific connection to Plaintiff's EEO activities. (See generally Complaint [Docket Item 1]; Pl.'s Opp'n [Docket Item 21].) Plaintiff asserts, without citation to the record or to any legal authority, that Mr. Martinez treated Plaintiff more severely after Plaintiff's EEO activity. (See Pl.'s Opp'n [Docket Item 21], 36-37.) However, no evidence is provided relating to Mr. Martinez's treatment of Plaintiff prior to the events of this case, therefore there is no way for a reasonable factfinder to determine that Mr. Martinez's treatment of Plaintiff changed after his EEO activities. (See generally Complaint [Docket Item 1]; Pl.'s Opp'n [Docket Item 21].)

V. CONCLUSION

For the foregoing reasons, Defendant's motion for summary judgment [Docket Item 16] will be denied insofar as Defendant seeks summary judgment as to Plaintiff's claims for religious discrimination within the context of Count One. The remainder of Defendant's motion shall be granted. An appropriate Order follows.