# HUNTER v. DEPTFORD BOARD OF EDUCATION

> District Court, D. New Jersey · October 1, 2019

URL: https://www.frixlaw.com/law-library/cases/10266853

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** October 1, 2019
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10266853

## How later opinions describe it (automated extraction)

- applying burden- shifting to retaliation claims
- noting the Third Circuit’s “cautious approach to Rule 403 exclusions at the pretrial stage”

## Opinion text

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.

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10266853. Public record. Not legal advice.