HUNTER v. DEPTFORD BOARD OF EDUCATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CEDRIC HUNTER,

Plaintiff,

Civil No. 16-727 (NLH/KMW)

v. OPINION

DEPTFORD BOARD OF EDUCATION,

WALTER BERGLUND, RICK

MARGOLESE, JOHN DOES (I-X),

AND ABC-XYZ CORPORATIONS,

(NAMES BEING FICTITIOUS AND

UNKNOWN),

Defendants.

APPEARANCES:

CEDRIC HUNTER

327 LASSALLE AVENUE

WENONAH, NJ 08090

Pro se Plaintiff.

TIMOTHY R. BIEG

MADDEN & MADDEN

108 KINGS HIGHWAY EAST

SUITE 200

HADDONFIELD, NJ 08033

On behalf of Defendant and Cross-Defendant Deptford Board

of Education and Defendant Rick Margolese.

DANIEL POSTERNOCK

MATTHEW ROYE LITT

PASTERNOCK APELL, P.C.

400 N. CHURCH STREET

SUITE 250

MOORESTOWN, NJ 08057

On behalf of Defendant and Cross-Claimant Walter Berglund.

HILLMAN, District Judge

This is an employment discrimination and retaliation action

in which Plaintiff Cedric Hunter claims Defendant Deptford

Township Board of Education (the “BOE”) and two of its

employees, Walter Berglund and Rick Margolese (collectively,

“Defendants”), discriminated against him based on his race and

age, and retaliated against him because he lodged complaints

against them with the Equal Employment Opportunity Commission

(EEOC).

There are three motions before the Court: two Motions for

Summary Judgment filed by Defendants (Docket Nos. 125 & 126),

and a “Motion to Suppress Evidence” filed by Plaintiff (Docket

No. 127). For the reasons expressed below, this Court will deny

Plaintiff’s Motion to Suppress, and will grant Defendants’

Motions for Summary Judgment.

BACKGROUND

The Court takes its facts from the parties’ statements of

material facts not in dispute.1 The Court will note any factual

disputes where relevant.

1 Notably, Plaintiff concedes in his opposition to Defendants’

Motions for Summary Judgment that the “material facts of this

case are not in dispute[.]” (Docket No. 137 at 7). Plaintiff did

not submit a counterstatement of material facts or otherwise

respond to the statements of material fact submitted by

Defendants in a manner required by Local Civil Rule 56.1.

On an unspecified day in January 2012, Plaintiff was hired

by the BOE as an evening custodian to be primarily staffed at

Shady Lane Elementary School. Plaintiff’s general duties

included “[k]eep[ing] the building and premises including

sideways, driveways, and play areas clean and safe at all

times[;]” “[p]erform[ing] all proper cleaning methods to include

dusting, sweeping, scrubbing, mopping, sanitizing, vacuuming, .

. . of all areas of responsibility[;]” and “[p]erform[ing] all

proper cleaning methods to furniture, floors, walls, doors,

marker boards, chalkboards, lavatory fixtures, windows, computer

and televisions monitors, computer keyboards, desks, water

fountains, and building structures.” (Docket No. 125-5 (“BOE

SOMF”) at 22, ¶14; BOE SOMF, Ex. C).

At all times relevant to this action, Defendant Margolese

served as the BOE’s Assistant Supervisor of

Custodians/Maintenance, and Defendant Berglund served as the

Head Supervisor of Custodians/Maintenance. Defendants Margolese

and Berglund were directly responsible for supervising

Plaintiff’s work.

Over the course of Plaintiff’s employment, Defendants

received more than forty (40) complaints about his custodial

work. After numerous complaints, on January 25, 2013, Plaintiff

was confronted about his deficient performance and placed on the

first of three corrective action plans. Pursuant to the first

corrective action plan, Plaintiff received full retraining and

was reminded of his job duties and the BOE’s expectations of

him.

Complaints about Plaintiff’s performance continued. For

example, on March 22, 2013, a fifth-grade teacher complained

that her classroom was not swept, and that trash was “sitting on

the floor for three days[.]” (BOE SOMF ¶29, Ex. F).

On April 3, 2013, a special education teacher complained

that tables in her classroom were “not cleaned” during the

evening hours, and areas around her classroom appeared not to

have “been swept[.]” (BOE SOMF ¶29).

On April 8, 2013, Shady Lane’s School Principal, Jackie

Scerbo (“Principal Scerbo”), wrote Defendant Margolese about

Plaintiff’s work performance. Principal Scerbo shared that a

walk-though of the building revealed that the floors had not

been cleaned the night before and that classroom desks were not

cleaned. (BOE SOMF ¶29, Ex. F).

On May 1, 2013, staff complained about “awful urine

smell[s]” that were progressively worsening over the course of

several days and could be smelled throughout the hallways. (BOE

SOMF ¶29, Ex. F). On May 2, 2013, Principal Scerbo contacted

Defendant Margolese to report additional complaints she received

about Plaintiff’s work.

Around the same time, Plaintiff was placed on a second

corrective action plan and again retrained. On May 2, 2013,

Plaintiff acknowledged receipt of the second corrective action

plan but objected to the assessments contained in it.

On or about May 13, 2013, the BOE issued a written

evaluation of Plaintiff’s performance and deemed it to be

“unacceptable to [the BOE’s] standard of cleaning.” (BOE SOMF,

Ex. G). Plaintiff was offered the following comments:

On January 10, 2013, I was called to

Shady Lane to look at Cedric’s area. The two

student bathrooms were disgusting to say the

least, and the rooms were not very clean. I

was told, teachers were cleaning desks and

other areas of the room. . . . On January 25,

2013, Cedric was put on a Corrective Action

Plan (CAP). He was re-trained by one of my

trainer custodians and myself. Over the last

few months, I have performed inspections per

the plan and have found his work to be

unacceptable to our standard of cleaning.

Though there was some improvement, overall,

Cedric’s section is unsatisfactory. During my

inspections, I would tell Cedric how I wanted

something done, or would give him advice and

suggestions. My next inspection, I would find

the same problem areas.

(BOE SOMF ¶30). Plaintiff acknowledged receipt of the written

evaluation but objected to its findings.

On June 14, 2013, Principal Scerbo wrote Defendants

Margolese and Berglund to share that Plaintiff missed work the

night before, and as a result, the school building was not

cleaned.

Following additional complaints, on July 1, 2013, Plaintiff

was placed on a six-month probationary period. (BOE SOMF ¶40,

Ex. J). Plaintiff objected to his probationary term as being a

means of harassment. While the record does not make clear

exactly when, around this same time, Plaintiff was transferred

from Shady Lane to another school in the district, the Central

Early Childhood Center (“Central”).

On July 10, 2013, Central’s Principal, Maria Geoffrey

(“Principal Geoffrey”), emailed Defendants Berglund and

Margolese complaining about Plaintiff’s performance. Principal

Geoffrey explained that Plaintiff was mopping the halls with

dirty water and was not properly cleaning bathrooms. Principal

Geoffrey also described Plaintiff’s failure to properly clean

the nurse’s office.

On September 5, 2013, Principal Geoffrey emailed Defendants

Berglund and Margolese to share that “the bathrooms are not

getting cleaned well” and that other tasks had been poorly

completed. (BOE SOMF ¶43, Ex. K).

On September 10, 2013, Principal Geoffrey complained that

urine stains remained on the nurse’s floor for several days, and

that Plaintiff was again “not cleaning his area properly[.]”

(BOE SOMF ¶44, Ex. L). That same day, supervisors met with

Plaintiff about his deficient performance. During that meeting,

Plaintiff requested additional training, which the BOE

ultimately provided.

On September 18, 2013, Plaintiff was provided with a

document highlighting some of the complaints against him and

outlining a perceived “lack of effort[.]” (BOE SOMF Ex. N).

Plaintiff acknowledged receipt of this document but claimed it

was the product of workplace retaliation.

From September 23, 2013 through November 19, 2013,

Defendants received numerous additional complaints about

Plaintiff’s work. (BOE SOMF ¶¶51-53). On November 20, 2013,

Defendant Margolese inspected Plaintiff’s work area and observed

numerous deficiencies, including dirty floors and unkept

bathrooms. (BOE SOMF, Ex. Q). Defendant Margolese shared these

findings with Plaintiff by letter dated November 21, 2013, which

Plaintiff acknowledged receiving. (BOE SOMF, Ex. Q).

On December 4, 2013, Defendant reported to the BOE that

“not only is there still no improvement with [Plaintiff’s]

cleaning, it has actually deteriorated.” (BOE SOMF, Ex. S).

On an unspecified day in January of 2014, Plaintiff

received a two-day suspension for poor performance. Thereafter,

Plaintiff was placed on a third corrective action plan.

Complaints about Plaintiff’s work continued. On January

16, 2014, Defendants received a complaint that Plaintiff’s

section of the building remained littered with trash and dirty

rags, was not vacuumed properly, and countertops appeared

covered with dirt. (BOE SOMF ¶57).

On March 24, 2014, the BOE issued a letter to Plaintiff

advising him of the continued complaints against him and

highlighting his under-performance. The letter noted that

Plaintiff had “shown no signs of improvement” and was

“performing far below the standards” expected. (BOE SOMF ¶59,

Ex. V). Plaintiff acknowledged receipt of this letter but

denied the accusations contained in it.

On May 28, 2014, the BOE advised Plaintiff he was not being

offered a renewed contract for the 2014-2015 school year due to

his “[u]nsatisfactory job performance[.]” (BOE SOMF, Ex. W).

On February 10, 2016, Plaintiff filed this matter with the

Court. Plaintiff’s Complaint contains four counts: one under

Title VII of the Civil Rights Act of 1964, codified at 42 U.S.C.

§ 2000e-2(h) (“Title VII”), for unlawful employment

discrimination on the basis of race (Count I); one under Title

VII for retaliation (Count II); one under the Age Discrimination

in Employment Act (“ADEA”), 29 U.S.C. § 621 et seq., for

unlawful age discrimination (Count III); and one under the New

Jersey Law Against Discrimination (“NJLAD”), N.J.S.A. 10:5-1 et

seq. (Count IV).

On July 18, 2019, Defendants BOE and Rick Margolese filed a

joint Motion for Summary Judgment (Docket No. 125,) and on July

19, 2019, Defendant Walter Berglund filed his own Motion for

Summary Judgment (Docket No. 126). Plaintiff opposed these

motions on August 23, 2019.

Shortly thereafter, on July 19, 2019, Plaintiff filed a

“Motion to Suppress Evidence” (Docket No. 127), which Defendants

opposed on August 2, 2019.

ANALYSIS

A. Subject Matter Jurisdiction

This Court has subject matter jurisdiction over this case

pursuant to 28 U.S.C. §§ 1331 and 1367.

B. Plaintiff’s Motion to Suppress Evidence

As this matter is set for trial, the Court construes

Plaintiff’s “Motion to Suppress Evidence” as a motion in limine

to preclude Defendant’s use of certain evidence at trial.

Plaintiff’s entire argument in support of his Motion to Suppress

is that:

[a]s a governmental entity, the [BOE] cannot

obviate, distribute, or solicit evidence that is

fraudulently obtained or that is purposefully gathered

by any agent or employee of the organizations during the

course of illegal or fraudulent activity. Any

information in defense of this case was rendered

prejudicial due to Rule 403.

(Docket No. 127). Defendants oppose Plaintiff’s motion on the

grounds that Plaintiff has not met his burden under Rule 403 of

the Federal Rules of Evidence, and that the motion is otherwise

unintelligible. The Court agrees.

The burden under Rule 403 is on the party opposing

admission, who must show that the probative value of evidence

“is substantially outweighed by the danger of unfair prejudice.”

See Fed. R. Evid. 403. Pursuant to Rule 403, a court “may

exclude relevant evidence if its probative value is

substantially outweighed by a danger of one or more of the

following: unfair prejudice, confusing the issues, misleading

the jury, undue delay, wasting time, or needlessly presenting

cumulative evidence.”

However, the Third Circuit has cautioned that “pretrial

Rule 403 exclusions should rarely be granted. . . . Excluding

evidence as being more prejudicial than probative at the

pretrial stage is an extreme measure that is rarely necessary,

because no harm is done by admitting it at that stage.” In re

Paoli R. Yard PCB Litig., 916 F.2d 829, 859 (3d Cir. 1990); see

also Spain v. Gallegos, 26 F.3d 439, 453 (3d Cir. 1994) (noting

the Third Circuit’s “cautious approach to Rule 403 exclusions at

the pretrial stage”). Moreover, the Third Circuit has

characterized Rule 403 as a “trial-oriented rule” such that

“[p]precipitous Rule 403 determinations, before the challenging

party has had an opportunity to develop the record, are . . .

unfair and improper.” In re Paoli R. Yard PCB Litig., 916 F.2d

at 859.

Plaintiff fails to identify which evidence he believes must

be excluded pursuant to Rule 403, rending his application

deficient. As such, Plaintiff has not met his burden under the

Rule and the Court must deny his motion.

C. Defendants’ Motions for Summary Judgment

a. Motion for Summary Judgment Standard

Summary judgment is appropriate where the Court is

satisfied that “‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits if any,’ . . . demonstrate the absence of a genuine

issue of material fact” and that the moving party is entitled to

a judgment as a matter of law. Celotex Corp. v. Catrett, 477

U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56).

An issue is “genuine” if it is supported by evidence such

that a reasonable jury could return a verdict in the nonmoving

party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986). A fact is “material” if, under the governing

substantive law, a dispute about the fact might affect the

outcome of the suit. Id. “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)

(citing Anderson, 477 U.S. at 255).

Initially, the moving party bears the burden of

demonstrating the absence of a genuine issue of material fact.

Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment

always bears the initial responsibility of informing the

district court of the basis for its motion, and identifying

those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence

of a genuine issue of material fact.”); see Singletary v. Pa.

Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001) (“Although

the initial burden is on the summary judgment movant to show the

absence of a genuine issue of material fact, ‘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’ when the nonmoving party

bears the ultimate burden of proof.” (citing Celotex, 477 U.S.

at 325)).

Once the moving party has met this burden, the nonmoving

party must identify, by affidavits or otherwise, specific facts

showing that there is a genuine issue for trial. Celotex, 477

U.S. at 324. A “party opposing summary judgment ‘may not rest

upon the mere allegations or denials of the . . . pleading[s].’”

Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). For

“the non-moving party[] to prevail, [that party] must ‘make a

showing sufficient to establish the existence of [every] element

essential to that party’s case, and on which that party will

bear the burden of proof at trial.’” Cooper v. Sniezek, 418 F.

App’x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322).

Thus, to withstand a properly supported motion for summary

judgment, the nonmoving party must identify specific facts and

affirmative evidence that contradict those offered by the moving

party. Anderson, 477 U.S. at 257.

b. The Motions for Summary Judgment

There are two separate motions for summary judgment before

the Court. For purposes of clarity, the Court begins by noting

the arguments presented by each of the various Defendants.

As to Plaintiff’s age and race discrimination claims

(Counts I and III of Plaintiff’s Complaint), all Defendants

argue that Plaintiff’s claims fail because Plaintiff (1) cannot

state a prima facie case under the law or, in the alternative,

(2) cannot establish pretext. Defendants BOE and Margolese also

argue that Plaintiff’s Title VII and ADEA claims fail as a

matter of law against the individual Defendants because neither

Title VII nor the ADEA permit claims to proceed against non-

employers.

As to Plaintiff’s retaliation claims (Count II and IV),

Defendants argue that Plaintiff’s claims fail as a matter of law

for the same reasons the discrimination claims fail.

i. The McDonnell Douglas Framework

Before turning to the parties’ arguments, the Court notes

that Plaintiff’s claims are analyzed under the McDonnell Douglas

burden-shifting framework. Under this standard, a plaintiff

must first “establish a prima facie case of discrimination.”

Parikh v. UPS, 491 F. App’x 303, 307 (3d Cir. 2012) (citing

McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973)).

Once a plaintiff has established his prima facie case, the

burden shifts to the defendant to provide a legitimate, non-

discriminatory reason for the adverse employment action. Under

the law,

[t]he employer satisfies its burden of production by

introducing evidence which, taken as true, would permit

the conclusion that there was a nondiscriminatory reason

for the unfavorable employment decision . . . . The

employer need not prove that the tendered reason

actually motivated its behavior, as throughout this

burden-shifting paradigm the ultimate burden of proving

intentional discrimination always rests with the

plaintiff.

Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994)(citations

omitted).

If the defendant satisfies this burden of production, a

plaintiff must then show that the reason produced was mere

pretext for discrimination. To show pretext, the relevant

standard requires a plaintiff to:

“demonstrate such weaknesses, implausibilities,

inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action

that a reasonable factfinder could rationally find them

‘unworthy of credence.’” Fuentes, 32 F.3d at 765. In

simpler terms, he must show, not merely that the

employer’s proffered reason was wrong, but that it was

so plainly wrong that it cannot have been the employer’s

real reason.

Keller v. Orix Credit All., 130 F.3d 1101, 1109 (3d Cir.

1997).

In other words, as the Third Circuit has held:

to defeat summary judgment when the defendant answers

the plaintiff’s prima facie case with legitimate, non-

discriminatory reasons for its action, the plaintiff

must point to some evidence, direct or circumstantial,

from which a factfinder could reasonably either (1)

disbelieve the employer’s articulated legitimate

reasons; or (2) believe that an invidious discriminatory

reason was more likely than not a motivating or

determinative cause of the employer’s action.

Fuentes, 32 F.3d at 764. A plaintiff’s evidence must “allow a

factfinder reasonably to infer that each of the employer’s

proffered non-discriminatory reasons . . . was either a post hoc

fabrication or otherwise did not actually motivate the

employment action (that is, the proffered reason is a pretext).”

Id. (citations omitted). With those standards in mind, this

Court will examine Defendants’ arguments.

ii. Whether Plaintiff’s Race Discrimination Claims

Fail as a Matter of Law

Plaintiff advances discrimination claims under both Title

VII and the NJLAD. Because the Third Circuit has recognized the

similarity between discrimination claims brought under Title VII

and NJLAD, the Court addresses these claims together. See Caver

v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005).

1. Whether Plaintiff Has Established A Prima

Facie Case

To establish a prima facie case under Title VII for

discrimination, Plaintiff must show the following: (1) he

“belongs to 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 give

rise to an inference of discrimination.” Davis v. City of

Newark, 285 F. App’x 899, 903 (3d Cir. 2008) (citing Jones v.

Sch. Dist. of Phila., 198 F.3d 403, 410-12 (3d Cir. 1999)).

Plaintiff must establish these four elements “by a preponderance

of the evidence.” Ditzel v. Univ. of Med. & Dentistry of N.J.,

962 F. Supp. 595, 602 (D.N.J. 1997).

Under the NJLAD,

[w]hen a [minority] plaintiff alleges racial

harassment under the LAD, she must demonstrate that the

defendant’s ‘conduct (1) would not have occurred but for

the employee’s [race]; and [the conduct] was (2) severe

or pervasive enough to make a (3) reasonable [person]

believe that (4) the conditions of employment are

altered and the working environment is hostile or

abusive.’

Caver v. City of Trenton, 420 F.3d 243, 262 (3d Cir. 2005)

(quoting Taylor v. Metzger, 706 A.2d 685, 688-89 (N.J. 1998)).

Defendants point to the numerous complaints they received

about Plaintiff’s work, the several corrective action plans and

retraining cycles provided to Plaintiff, and Plaintiff’s

continued non-performance of his duties as evidence of his lack

of qualification for his position. Plaintiff does not directly

address Defendants’ arguments in his briefing.

While the Court tends to agree that the overwhelming

evidence of Plaintiff’s inability to perform his required tasks

suggests that Plaintiff is unqualified for his custodial

position, the Court finds that the issue is best addressed under

the pretext analysis.

2. Whether Plaintiff Has Established Pretext

Assuming for the sake of argument that Plaintiff has

established his prima facie case, Defendants argue that

Plaintiff failed to present enough evidence of pretext

considering the well-documented complainants about Plaintiff’s

non-performance of his job duties. The Court agrees.

To show pretext, Plaintiff must point to some evidence,

direct or circumstantial, from which a factfinder could

reasonably either “(1) disbelieve the employer’s articulated

legitimate reasons; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or

determinative cause of the employer’s action.” Fuentes, 32 F.3d

at 764. Plaintiff has not pointed to any such evidence.

Defendants have produced overwhelming evidence in support

of their proffered reason for terminating Plaintiff:

insufficient job performance. The undisputed evidence shows

that the BOE received dozens of complaints about Plaintiff’s

work performance from multiple sources, and that Plaintiff was

retrained on at least three occasions. According to the

undisputed facts, despite ample retraining, Plaintiff

consistently failed to properly mop floors, dust, wipe down

furniture, sanitize, and clean bathrooms - key aspects of

Plaintiff’s job duties.

After reviewing the evidence before the Court, including

the parties’ affidavits, documents, memoranda, and supporting

materials, the Court finds that no reasonable jury could either

(1) disbelieve Defendants’ articulated, legitimate reason for

terminating Plaintiff; or (2) believe that an invidious

discriminatory reason was more likely than not a motivating or

determinative cause of Plaintiff’s termination. Accordingly,

this Court will dismiss Plaintiff’s Title VII and NJLAD

discrimination claims (Counts I and IV) in their entirety.

iii. Whether Plaintiff’s Retaliation Claims Fail as a

Matter of Law

Defendants argue dismissal is appropriate because Plaintiff

has not made a prima facie showing of retaliation. Assuming for

the sake of argument that Plaintiff has met his burden of

proving a prima facie case, Defendants assert that Plaintiff has

not presented facts which could support a finding of pretext.

Plaintiff generally asserts that he was retaliated against

for filing certain unspecified complaints with the EEOC but

fails to present this Court with copies of those complaints.

Generally, courts in this District have found that

retaliation under Title VII and NJLAD do not require separate

analysis:

To make out a prima facie claim for unlawful retaliation

under Title VII and the NJLAD, a plaintiff must produce

evidence that: (1) she engaged in activity protected by

Title VII and the NJLAD; (2) her employer took an adverse

employment action against her either after or

contemporaneous with her protected activity; and (3) a

causal connection exists between that adverse employment

action and her protected activity.

Hargrave v. County of Atlantic, 262 F. Supp. 2d 393, 423 (D.N.J.

2003) (citing Abramson v. William Patterson Coll., 260 F.3d 265,

286 (3d Cir. 2001); Craig v. Suburban Cablevision, Inc., 660

A.2d 505, 508 (1995)). This Court will engage in the familiar

McDonnell Douglas burden-shifting analysis. See Jorrin v.

Lidestri Foods, Inc., No. 11-2064 (NLH/AMD), 2013 U.S. Dist.

LEXIS 44475, at *36-46 (D.N.J. Mar. 28, 2013) (applying burden-

shifting to retaliation claims).

Defendants assert the reason for Plaintiff’s termination

was underperformance of job duties. The Court finds, as it did

above, that Defendant has met its burden of production.

Therefore, the Court must turn back to Plaintiff to determine

whether this reason was mere pretext.

While Plaintiff argues that “any information proffered by

the [BOE] . . . is purely pretext[,]” Plaintiff fails to expand

upon that assertion. Plaintiff’s argument does not rely on

evidence in the record, and after a comprehensive search of the

record, the Court can discern no evidence to support it.

Plaintiff fails to draw any temporal or logical connection

between his alleged-EEOC filings and his termination. Instead,

the record supports a finding that Plaintiff was terminated for

continuous underperformance.

Accordingly, for the same reasons discussed above, this

Court finds Plaintiff has failed to produce evidence that would

support a finding that Defendants’ stated basis for terminating

him was pretextual. Without a showing of pretext, this Court

cannot allow these retaliation claims to proceed, whether under

Title VII or NJLAD. Therefore, Plaintiff’s retaliation claim

(Count II) will be dismissed.2

iv. Whether Plaintiff’s Age Discrimination Claims

Fail as A Matter of Law

Plaintiff advances an age discrimination claim under the

ADEA (Count III), and also advances a general NJLAD

discrimination claim that could be read as applying to his age

discrimination allegations (Count IV). Because the Third

Circuit has held that the elements of a prima facie case under

the NJLAD and the ADEA are the same, the Court will address both

together. See Monaco v. American General Assur. Co., 359 F.3d

296, 300 (3d Cir. 2004).

First, Defendants BOE and Margolese argue that Plaintiff’s

ADEA claim must be dismissed for failure to exhaust

administrative remedies as Plaintiff has not sufficiently shown

he filed any relevant complaint with the EEOC. Second,

Defendants generally assert that Plaintiff has not come forward

with any evidence that he was discriminated against based upon

his age.

2 While Plaintiff also uses the term “aided and abetted” in his

Complaint, (Docket No. 1 at ¶59), and while the NJLAD may impose

liability for aiding and abetting in unlawful discrimination

practices, N.J.S.A. 10:5-12(e), because the Court finds that no

actionable discrimination has occurred, the Court need not

address whether aider and abettor liability exists.

1. Whether Plaintiff Failed to Exhaust His

Administrative Remedies

Generally, a plaintiff asserting an ADEA claim “must file a

charge with the EEOC within 180 days of the alleged employment

action.” Scott v. Schindler Elevator Corp., 2019 U.S. Dist.

LEXIS 74774, *14 (D.N.J. May 2, 2019) (Hillman, J.) (citing

Marina Wood v. Kaplan Props., No. 09-1941 (JLL), 2009 U.S. Dist.

LEXIS 89834, at *7 (D.N.J. Sept. 29, 2009)). The Third Circuit

has termed this a “condition precedent to filing suit under the

ADEA.” Id. (citations omitted).

While the record does not contain a copy of any complaint

Plaintiff allegedly filed with the EEOC, Plaintiff testified at

his deposition to having filed “several” EEOC complaints against

the BOE arising out of his employment. (Docket No. 126-2,

1T114:2-13). Plaintiff further testified that he supplied the

EEOC with documentation regarding his claims, but that

ultimately, the EEOC investigated and could not locate evidence

to sustain his complaints. (Docket No. 126-2, 1T114:15-17).

Moreover, during Plaintiff’s deposition, counsel had a

discussion in which they identified a “November 16, 2015 letter

from the EEOC” which counsel suggests had been produced in

discovery. (Docket No. 126-3, 1T247:2-15).

Based upon Plaintiff’s testimony and the evidence before

this Court, in deciding the present Motions for Summary

Judgment, the Court will reject Defendants’ position.

Sufficient disputes of fact exist as to whether Plaintiff

actually filed a relevant EEOC complaint. As such, the Court

cannot determine, based upon the record before it, that

Plaintiff failed to exhaust his administrative remedies.3

Accordingly, the Court will address the claim on the merits.

2. Whether Plaintiff’s ADEA Claim Fails as A

Matter of Law

The Age Discrimination in Employment Act (“ADEA”)

prohibits terminating a person’s employment due to their age. 29

U.S.C. § 623(a)(1). To establish a prima facie case of age

discrimination, Plaintiff must demonstrate: (1) that he is at

3 It is unclear why this issue, which turns on objective facts,

is in fact unclear and both parties bear some responsibility for

the lack of clarity. If Plaintiff had filed a complaint with

the EEOC, it would seem to be within the Plaintiff’s personal

knowledge as to when the complaint was filed, what claims were

within the scope of the complaint, what the administrative

process determined, and when it ended. Plaintiff offers none of

that evidence even though it would seem to offer a ready defense

to the claim he failed to exhaust his administrative remedies.

On other hand, the deposition transcript demonstrates that

Defendants have been made privy to a letter from the EEOC

regarding this case and that letter forms no basis for their

summary judgment motion. In light of the Plaintiff’s pro se

status and the obligation of the moving party, in the first

instance, to demonstrate the absence of a material dispute of

fact, Celotex, 477 U.S. at 323 (“[A] party seeking summary

judgment always bears the initial responsibility of informing

the district court of the basis for its motion, and identifying

those portions of ‘the pleadings, depositions, answers to

interrogatories, and admissions on file, together with the

affidavits, if any,’ which it believes demonstrate the absence

of a genuine issue of material fact”), the Court will resolve

this issue in Plaintiff’s favor.

least 40 years old; (2) that he suffered an adverse employment

action; (3) that he was qualified for the position he was

terminated from; and (4) either (a) that he was “replaced by

another employee who was sufficiently younger so as to support

an inference of a discriminatory motive” or (b) “facts which ‘if

otherwise unexplained, are more likely than not based on the

consideration of impermissible factors.’” Willis v. UPMC

Children's Hosp. of Pittsburgh, 808 F.3d 638, 644 (3d Cir. 2015)

(quoting Pivirotto v. Innovative Sys., Inc., 191 F.3d 344, 352

(3d Cir. 1999)). At bottom, though, Plaintiff “must prove that

age was the ‘but-for’ cause of the employer's adverse decision.”

Gross v. FBL Fin. Servs., Inc., 557 U.S. 167, 176, 129 S. Ct.

2343, 174 L. Ed. 2d 119 (2009).

For the reasons previously discussed, Plaintiff has not

sufficiently demonstrated that he was qualified for the position

he occupied. Second, Plaintiff has not shown either (1) that he

was replaced by another employee sufficiently younger than him

or (2) facts which if otherwise unexplained, are more likely

than not based on the consideration of impermissible factors.

In fact, the record does not contain any information as to

whether Plaintiff was replaced, let alone whether he was

replaced by someone younger than him. Third, Plaintiff has not

produced or identified any evidence that his age was the but-for

cause of his termination. As such, this Court will dismiss

Plaintiff’s ADEA claim (Count III) in its entirety.4

4 For purposes of completeness, the Court notes that Defendants

BOE and Margolese also argue that Plaintiff’s Title VII and ADEA

claims fail as a matter of law as to the individual Defendants

because neither Title VII nor the ADEA permit claims against

individuals who are not employers. Defendants are correct.

“Title VII prohibits unlawful employment practices by

employers.” Emerson v. Thiel College, 296 F.3d 184, 190 (3d Cir.

2002) (citing 42 U.S.C. § 2000e-2(a)). The statute defines

“employer” as “a person engaged in an industry affecting

commerce who has fifteen or more employees . . . and any agent

of such a person.” 42 U.S.C. § 2000e(b). The Third Circuit has

consistently held that while employers may be held liable under

Title VII, “Congress did not intend to hold individual employees

liable under Title VII.” Sheridan v. E.I. Dupont de Nemours &

Co., 100 F.3d 1061, 1078 (3d Cir. 1996); Freeman v. Harris, 716

Fed. Appx. 132, 133 (3d Cir. 2018) (same).

Similarly, the ADEA does not provide for liability against

non-employer individuals. In pertinent part, the ADEA provides

that “It shall be unlawful for an employer . . . to fail or

refuse to hire or to discharge any individual or otherwise

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment

because of such individual's age.” 29 U.S.C. § 623(a). As

relevant to the ADEA, the term “employer” means a “person

engaged in an industry affecting commerce who has twenty or more

employees for each working day . . . [and] . . . any agent of

such a person[.]” 29 U.S.C. § 630(b). The ADEA, however, “does

not provide for individual liability.” Hill v. Borough of

Kutztown, 455 F.3d 225, 246 n.29 (3d Cir. 2006); Parikh v. UPS,

491 Fed. Appx. 303, 308 (3d Cir. 2012) (“Neither Title VII nor

the ADEA provides for individual liability.”); De Santis v. New

Jersey Transit, 103 F. Supp. 3d 583, 589-90 (D.N.J. 2015); Ross-

Tiggett v. Reed Smith LLP, Civ. No. 15-8083 (JBS/AMD), 2016 U.S.

Dist. LEXIS 113554, *12 (D.N.J. Aug. 24, 2016) (collecting

cases).

Plaintiff has not presented any evidence suggesting that

Defendants Margolese and Berglund, in their individual

capacities, meet the definition of “employer” under either the

ADEA or Title VII. Instead, the record clearly shows that

CONCLUSION

Based on the foregoing analysis, Plaintiff’s Motion For

Suppression of Evidence (Docket No. 127) will be denied, and

Defendants’ Motions for Summary Judgment (Docket Nos. 125 & 126)

will be granted. This case will be dismissed in its entirety.

An appropriate Order will be entered.

Date: October 1, 2019 s/ Noel L. Hillman

At Camden, New Jersey NOEL L. HILLMAN, U.S.D.J.

Plaintiff was a BOE employee, who was merely supervised by

Defendants Margolese and Berglund. As such, to the extent

Plaintiff’s Title VII and ADEA claims can be read as being

brought against the individual Defendants, those claims cannot

stand.