# DAVIS v. DEJOY

> District Court, D. New Jersey · August 17, 2020

URL: https://www.frixlaw.com/law-library/cases/10269117

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** August 17, 2020
- **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/10269117

## Opinion text

NOT FOR PUBLICATION
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

CONSTANCE DAVIS,
Plaintiff,
Civil Action No. 16-4473 (ZNQ)
MEMORANDUM OPINION
LOUIS DEJOY, Postmaster General, U.S.
Postal Service,
Defendant.

QURAISHI, Magistrate Judge
This matter comes before the Court upon Defendant Louis DeJoy, Postmaster General of
the United States Postal Service’s (“Defendant”) Motion for Summary Judgment on Plaintiff
Constance Davis’ (“Plaintiff”) claim alleging violations of Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seg. and Section 102 of the Civil Rights Act of 1991, 42 U.S.C.
§ 1981A (the “Motion”). (Mot. for Summ. J., ECF No. 49.) Plaintiff opposed (Pl.’s Opp’n, ECF
No. 52), and Defendant replied (Def.’s Reply, ECF No. 60). The Court has carefully considered
the parties’ arguments, and decides the matter without oral argument pursuant to Federal Rule of
Civil Procedure 78(b) and Local Civil Rule 78.1. For the reasons set forth herein, Defendant’s □
Motion is granted.
I. FACTS
A. Undisputed Facts
The underlying dispute in this matter arises from Defendant’s alleged retaliation against
Plaintiff for her engagement in protected activity during her employment as a Custodial Group

Leader at the Trenton Processing Distribution Center (“Trenton PDC”), a division of the United
States Postal Service. (Def.’s Statement of Material Facts (““DSMF’) JJ 1-2, ECF No. 49-2;
Plaintiffs Response to Defendant’s Statement of Material Facts Not in Dispute (““PRSMP”) {J 1-
2, ECF No. 52-3.) As Custodial Group Leader, Plaintiff’s responsibilities included laboring tasks.
(DSMF { 12; PRSMF J 12.) The Group Leader position job description indicates that a Group
Leader may perform laboring tasks as required. (PSMF { 63, 67; DRSMF { 63, 67.) Some of the
tasks Plaintiff performed from January 3, 2008 to May 30, 2008 include: cleaning the workroom
floor, cleaning walls, recycling cardboard; cleaning various rooms, cleaning the ovens, operating
the scrubber, installing or removing aisle lines, stripping or waxing the maintenance shop,
recycling fluorescent lamps, cleaning the trench drain, repairing floors, moving maintenance
control equipment, putting away supplies, cleaning dock areas, sweeping aisles, and moving other
equipment. (PSMF 9.55; DRSMF { 55.)
In October 2007, Bernard Gallagher (“Gallagher”) became the Acting Manager of
Maintenance at the Trenton PDC. (DSMF {J 4; PRSMF ff 4.) Plaintiff did not report directly to
Gallagher; during the time frame in question, Michael Shickler (“Shickler’’) acted as Plaintiff’ s
immediate supervisor, as the Supervisor in Maintenance at the Trenton PDC. (DSMF {ff 8-9;
PRSMF {ff 8-9; Plaintiff’s Statement of Material Facts (““PSMF”) 7 5, ECF No. 56-1; Defendant’s
Response to Plaintiff’s Statement of Material Facts (“DRSMF’”) J 5, ECF No. 60-4.) Before
Gallagher’s arrival, Shickler treated Plaintiff well. (PSMF 7 26; DRSMF { 26.)
As of October 2007, Plaintiff filed five complaints with the Equal Employment
Opportunity Commission (“EEOC”), in 1998, 2000, 2006, August 3, 2007, and September 14,
2007, and later filed an action in federal district court. (DSMF { 23; PRSMEF J 23; PSMF J 6;
DRSMF { 6.) Gallagher was not working at the Trenton PDC when Plaintiff filed her five previous

complaints. (DSMF { 24; PRSMF { 24.) Neither Gallagher nor Shickler were involved in
Plaintiff's prior complaints to the EEOC. (DSMF { 26; PRSMF { 26.) Plaintiff never saw any
documentation evidencing that either Gallagher or Shickler had knowledge of her prior activity or
complaints to the EEOC. (DSMF { 29; PRSMF 29.)
Plaintiff had also filed a prior civil action in 2005, terminating after a settlement agreement
was reached on February 27, 2008, and arising out of her complaints to the EEOC in 1998 and
2000. (Settlement Agreement, ECF No. 30, Davis v. Potter, 05-2201 (D.N.J. filed Apr. 26, 2005);
DSMF {| 33-34; PRSMF ff 33-34.) Plaintiff waived her right to anonymity in the EEOC
complaints that became part of the federal action. (PSMF { 8; DRSMF { 8.) Neither Gallagher nor
Shickler were named as defendants or participated in any capacity in the prior action. (DSMF { 36;
PRSMF { 36.) Neither Gallagher nor Shickler attended any of the court conferences in her federal
district court action, held on October 19, 2007, November 14, 2007, December 5, 2007, and
February 5, 2008. (DSMF 35, 39; PRSMF {J 35, 39.) Plaintiff never spoke to Gallagher or
Shickler about her prior action, and they never spoke about it to her. (DSMF ff 40-41; PRSMEF
40-41.)
After Plaintiff had requested a schedule change, Karin Roy, a Postal Service Specialist,
told Gallagher that Plaintiff did not have an approved worker’s compensation claim for a change
in schedule, and that there was no medical documentation on file explaining the medical need for
Plaintiff's permanent schedule change. (DSMF J 18; PRSMF { 18.) Gallagher allowed Plaintiff to
continue to work an alternate schedule while he investigated Plaintiff’s request to change her
official schedule. (DSMF{19; PRSMF 19.) Dr. Rafael Hasbun, Plaintiff’ s doctor of over twenty-
five (25) years, submitted a prescription dated January 30, 2008, permitting Plaintiff to return to
work full-time from 7:00 a.m, to 3:00 p.m. (DSMF 4 20-21; PRSMF Jf 20-21.) On February 1,

2008, Plaintiff resumed her official work schedule. (DSMF J 22; PRSMF J 22.) A few months
later, Plaintiff began starting at 6:00 a.m., and did so until her last day of work. (PSMF {if 96-97;
DRSME {if 96-97.)
Plaintiff initiated informal counseling relating to Gallagher and Shickler on March 4, 2008.
(DSMEF {[ 42; PRSMF {[ 42.) Plaintiff was never demoted; her pay was never decreased; she was
not disciplined by Gallagher or Shickler; and neither Gallagher nor Shickler denied Plaintiff sick
leave or annual leave. (DSMEF {| 43-46; PRSMF 43-46.)
B. Disputed Facts
The following facts are in dispute:
° whether Plaintiff's work station was relocated to another area of the facility, or
whether it was dismantled, (DSMF J 11, PRSMF J 11, PSMF 73-83, DRSMF
Il 73-83);
e whether Shickler or Gallagher had knowledge of or mentioned her prior EEOC
complaints, (DSMF ff 27-28, 30-32; PRSMF J 27-28, 30-32);
° whether Gallagher engaged in harassment from December 2007 to April 2008 by:
pursuing Plaintiff at work and accusing her of not doing her job; telling her that he
expected the building to be clean or he would hold her responsible; stated that it
does not look like she does anything; and pursued or disrespected Plaintiff for
several months, (PSMF {{ 16-21: DRSMF {J 16-21);
e whether Gallagher told Plaintiff he did not need a Group Leader, and that he needed
a Laborer; that Plaintiff would be getting Laborer duties; and that a Group Leader
did not need an office, (PSMF J 22; DRSMF { 22);
e whether Gallagher and Shickler told others or Plaintiff that Plaintiff did not want to
perform Group Leader duties, that Plaintiff had been demoted, spoke about
violating her rights publicly, or treated the other Group Leaders or Laborers in a
different manner, (PSMF { 23, 29; DRSMF { 23, 29);
° whether Shickler followed and mistreated Plaintiff; accused her of not doing her
work and criticized her work in a demeaning way; and whether before Gallagher’ s
arrival, Shickler did not complain about her work, (PSMF {J 24-26; DRSME 4 24-
26);

whether Gallagher and Shickler’s treatment interfered with Plaintiff’s duties to
perform her duties as Group Leader, (PSMF J 32-33; DRSMF [J 32-33);
° whether on January 4, 2008, Gallagher told Plaintiff he no longer needed a Group
Leader and that Plaintiff would from then on work as a Laborer, and as a result,
Plaintiff had physical symptoms of stress and went on “stress leave” from January
5, 2008 to January 21, 2008, (PSMF {{ 34-36; DRSMF {if 34-36);
° whether on January 22, 2008, Plaintiff was informed she would only be conducting
Laborer duties in the future, whether she was in fact assigned only Laborer duties,
and whether she was given less time to complete them than other Laborers, (PSMF
{ 37-41,45-46; DRSMF fl 37-41, 45-46);
e the distribution of duties Plaintiff completed from January 3, 2008 to May 30, 2008,
(PSMF {J 48-54, 56-59; DRSMF {{ 48-54, 56-59);
° whether as of February 2008, Plaintiff had an approved claim with the Office of
Workers Compensation program, dating back to 2000, and still active in 2007, that
permitted her to begin work at 6:00 a.m. instead of 7:00 a.m., (PSMF {Jf 84-85;
DRSMF {[84-85);
° whether Plaintiff’s work schedule during the relevant time frame in the Amended
Complaint was 7:00 a.m. to 3:00 p.m., (DSMF J 16, PRSMF 16);
e whether during January meetings, Gallagher questioned Plaintiff’s modified work
schedule, accused her of lying, and contacted her primary physician, who
responded that she was able to work from 7:30 a.m. to 3:30 p.m., (PSMF 4 86-91;
DRSMF {J 86-91);
e whether instead Dr. Harry Doyle, Plaintiff's psychiatrist, requested the
accommodation, and authored three letters to this effect, (PSMF JJ 92-93; DRSMF
{9 92-93); and
° whether Gallagher canceled the accommodation, and a few months later, without
submitting additional information, Plaintiff resumed the 6:00 a.m. start time,
(PSMF {ff 95-96; DRSMF 95-96.)
I. LEGAL STANDARD
A. Summary Judgment
Summary judgment is appropriate if the record shows that there is no genuine dispute as to
any material fact and the movant is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(a).
A material fact raises a “genuine” dispute if the evidence is such that a reasonable jury could return

a verdict for the non[-]moving party.” Williams v. Borough of W. Chester, 891 F.2d 458, 459 (3d
Cir. 1989) (quoting Anderson Liberty Lobby, Inc., 477 U.S. 242, 250 (1986)). A fact is material if
it has the ability to “affect the outcome of the suit under governing law.” Kaucher v. Cty. of Bucks,
455 F.3d418, 423 (3d Cir. 2006). “Only disputes over facts that might affect the outcome of the
suit under the governing law will properly preclude the entry of summary judgment.” Anderson,
477 U.S, at 248.
In evaluating the evidence, the Court must consider all facts and their logical inferences in
the light most favorable to the non-moving party. Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir.
2002). On a motion for summary judgment, a court’s “function is not... to weigh the evidence
and determine the truth of the matter but to determine whether there is a genuine [dispute] for
trial.” Anderson, 477 U.S. at 248.
B. Retaliation
To state a prima facie case of retaliation under Title VI, a plaintiff must show that
that [the plaintiff] engaged in a protected employee activity by Title VII; (2) that the employer
took an adverse action against her; and (3) that there was a causal connection between the protected
activity and the adverse employment action.” Moore y. City of Phila., 461 F.3d 331, 340 (3d Cir.
2006) (quoting Nelson v. Upsala Coll., 51 F.3d 383, 386 (3d Cir. 1995)). Title VII provides:
It shall be unlawful employment practice for an employer to
discriminate against any of his employees .. . because he has
opposed any practice made an unlawful employment practice by this
subchapter, or because [she] has made a charge, testified, assisted,
or participated in any manner in an investigation, proceeding, or
hearing under this subchapter.
42 U.S.C. § 2000e—3a. “The antiretaliation provision seeks to secure [a workplace where
individuals are not discriminated against because of their racial, ethnic, religious, or gender based
status] by preventing an employer from interfering (through retaliation) with an employee’s efforts

kK

to secure or advance enforcement of the Act’s basic guarantees.” Burlington N. & Sante Fe Ry.
Co. v. White, 548 U.S. 53, 63 (2006). “The antiretaliation provision protects an individual not from
all retaliation, but retaliation that produces injury or harm.” Jd. at 67.
“A plaintiff seeking to prove her case through indirect evidence ... may do so by applying
the familiar McDonnell Douglas burden-shifting framework. Carvalho-Grevious vy. Del. State
Univ., 851 F.3d 249, 257 (3d Cir. 2017) (citation omitted). “After establishing a prima facie case
of retaliation, the burden shifts to the employer to provide a legitimate non-retaliatory reason for
its conduct. fd. (citing Moore, 461 F.3d at 342), If the employer accomplishes this, the burden
shifts back to Plaintiff “to convince the factfinder both that the employer’s proffered explanation
was false [that is, a pretext], and that retaliation was the real reason for the adverse employment
action. Jd. The Supreme Court of the United States has more recently elaborated that “Title VII
retaliation claims must be proven according to traditional principles of but-for causation,” meaning
that “[t]his requires proof that the unlawful retaliation would not have occurred in the absence of
the alleged wrongful action or actions of the employer.” Univ. of Tex. v. Sw. Med. Ctr. v. Nassar,
570 U.S. 338, 360 (2013).
In interpreting the first prong, the Court contemplates that “protected ‘opposition’ activity
includes not only an employee’s filing of formal charges of discrimination against an employer
but also “informal protests of discriminatory employment practices, including making complaints
to management.’” Daniels, 776 F.3d at 193 (citations omitted). “Whether the employee opposes,
or participates in a proceeding against, the employer’s activity, the employee must hold an
objectively reasonable belief, in good faith, that the activity they oppose is unlawful under Title
VIL.” Moere, 461 F.3d at 341.

For an employer’s acts to “satisfy the second prong of a prima facie case of retaliation, the
plaintiff ‘must show that a reasonable employee would have found the challenged action materially
adverse, which in this context means it well might have dissuaded a reasonable worker from
making or supporting a charge of discrimination.’” Daniels v. Sch. Dist. of Phila., 776 F.3d 181,
195 (3d Cir. 2015) (quoting Burlington Northern, 548 U.S. at 68). The element of material
adversity is highlighted because “it is important to separate significant from trivial harms,” further
stating “[a]n employee’s decision to report discriminatory behavior cannot immunize that
employee from those petty slights and minor annoyances that often take place at work and all
employees experience.” Id.
Regarding the third element, “[t]o demonstrate a link between protected activity and an
employer’s adverse action, a plaintiff may rely on the temporal proximity between the two if
‘unusually suggestive.’” Jd. (citing Marra v. Phila. Hous. Auth., 497 F.3d 286, 302 (3d Cir. 2007)).
“The causal connection may be demonstrated by evidence of circumstances that justify an
inference of retaliatory motive, such as protected conduct closely followed by adverse action.”
Jalil Avdel Corp., 873 F.2d 701, 708 (d Cir. 1989) (quoting Burrus v. United Tele. Co., 683
F.2d 339, 343 (10th Cir.)). “[T]emporal proximity alone [is] insufficient to establish the necessary
causal connection when the temporal relationship is not ‘unusually suggestive,’ .. . nineteen
months [is] too attenuated to create a genuine issue of fact.” fd. (quoting Krouse v. Am. Sterilizer
Co., 126 F.3d 494, 503 (3d Cir. 1997)). “[W]here there is a lack of temporal proximity,
circumstantial evidence of a ‘pattern of antagonism’ following the protected conduct can also give
rise to the inference.” Kachmar vy. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)
(citing Robinson vy. Se. Pa. Transp. Auth., 982 F.3d 892, 895 (3d Cir. 1993)),
DISCUSSION

Defendant argues that it is entitled to summary judgment because: Plaintiff is unable to
establish a prima facie case of retaliation; even if she could, Defendant has advanced legitimate,
non-retaliatory reasons for its actions; and that despite lengthy discovery, Plaintiff is unable to
show that these reasons are pretextual. (Def.’s Moving Br. 1, ECF No. 49-1.) The Court will
address each of these arguments in turn.
A. Prima Facie Case of Retaliation
L. Prong II: Material Adversity
To state a prima facie case of retaliation under Title VII, the plaintiff must show “(1) that
[the plaintiff] engaged in a protected employee activity by Title VII; (2) that the employer took an
adverse action against her; and (3) that there was a causal connection between the protected activity
and the adverse employment action.” Moore, 461 F.3d at 340 (citation omitted). Plaintiff engaged
in protected activity in the form of filing complaints with the EEOC, and initiating and
participating in an action in federal district court, which satisfies the first prong. (DSMF {| 23;
PRSMEF {{ 23; PSMF { 6; DRSMF { 60); Daniels, 776 F.3d at 193 (citations omitted).
Plaintiff has not, however, provided evidence to cause a genuine dispute of material fact
that Defendant took a materially adverse action against her. The Supreme Court has clearly
articulated that “it is important to separate significant from trivial harms,” and an adverse action is
material when it could have “dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Burlington Northern, 548 U.S. at 68 (citations omitted). “Title VII... does
not set forth “a general civility code for the American workplace.” Jd. (citation omitted). The
inquiry is necessarily context dependent, id. at 69, and courts are charged with determining
“whether an environment is sufficiently hostile or abusive by ‘looking at all the circumstances,’”
including the ‘frequency of the discriminatory conduct; its severity; whether it is physically

QO

threatening or humiliating, or a mere offensive utterance; and whether it unreasonably interferes
with an employee’s work performance,’” Faragher v. City of Boca Raton, 524 U.S. 775, 787-88
(1998). “[C]onduct must be extreme to amount to a change in the terms and conditions in
employment.” /d. at 788.
Plaintiff claims that Defendant retaliated against her when Gallagher and Shickler
criticized or verbally harassed her, dismantled her work station, required her to perform laboring
tasks, and did not alter her work schedule per her request. In New Jersey, “courts have consistently
found that an employee’s perception that [she] has been micromanaged, criticized, or scrutinized
by [her] supervisor fails to rise to the level of ‘material adversity,’ and is not actionable as part of
a Title VII retaliation claim.” McKinnon y. Gonzales, 642 F. Supp. 2d 410, 428 (D.N.J. 2009).
Plaintiff's claims that Gallagher and Shickler followed her around, accused her of not doing her
job, told her that they expect the building to be clean or that they would hold her responsible, and
telling her it did not look like she does anything, (PSMF Jf 16-21, 24-26; DRSMF {J 16-21, 24-
26), and Gallagher and Shickler’s alleged statements about not needing a Group Leader, or that
Plaintiff would be assigned laboring tasks, (PSMF J 22-23, 29, 34-41, 45-46; DRSMF J 22-23,
29, 34-41, 45-46), do not rise to the level of material adversity. See Atkinson y. N. Jersey
Developmental, 453 PF. App’x 262, 263, 266 (3d Cir. 2011) (affirming summary judgment that the
defendant did not engage in retaliation when supervisor gave the plaintiff a low performance
review, issued her a waring for arriving late, denied her vacation requests, adjusted her duties, and
got into a heated argument with her); Dicks-Kee v. New Jersey Judiciary, No. 12-6620, 2014 WL
7339458, at *8 (D.N.J. Dec. 23, 2014) (finding that the supervisor’s treatment of “hostility,
condescension, and disrespect,” including yelling at her, interrupting her conversations, barging
into her office unannounced, and acting dismissively towards her did not rise to the level of

material adversity); LaSalle v. Port Auth. of New York & New Jersey, No. 12-2532, 2013 WL
6094339, at *12 (D.N.J. Nov. 19, 2013) (finding that it was not materially adverse when the
plaintiff was “micro-managed,” was accused of stealing time, his supervisor was “condescending
and belittling,” called the plaintiff a liar, cursed at him, and embarrassed him on at least one
occasion, among other things); DeLuzio v. Family Guidance Ctr. of Warren Cty., No. 06-6220,
2010 WL 1379766, at *14 (plaintiff’s complaints of micromanaging and mistreatment were not
materially adverse).
The dismantling or relocation of Plaintiffs cubicle is similarly not a materially adverse
action, (DSMF { 11, PRSMF ¥ 11, PSMF 73-83, DRSMF Jf 73-83); see Siroy vy. Jobson
Healthcare Info. LLC, No. 16-4523, 2019 WL 1598021, at *7 (D.N.J. Apr. 15, 2019) (“The
relocation of cubicles or assigned work posts generally does not by itself constitute a materially
adverse change in employment.) Regarding Plaintiffs requested schedule change, this too fails
to demonstrate material adversity. The parties do not dispute that Plaintiff was permitted to work
during her desired hours while Gallagher investigated her request further. (DSMF {| 19; PRSMF
{ 19.) Upon Gallagher’s receipt of a prescription from her physician, she returned to her regular
work schedule. (DSMF {J 20-22; PRSMF {{{] 20-22.) A few months later, she began working at
6:00 a.m. again, and was permitted to do so until her last day of work. (PSMF J] 96-97; DRSMF
96-97.) Restructuring an employee’s work schedule by a single hour would not have “dissuaded
a reasonable worker from making or supporting a charge of discrimination.” Burlington Northern,
548 U.S. at 68 (citations omitted).
Plaintiff’s assignment to conduct laboring tasks is also not materially adverse. It is
undisputed that as Custodial Group Leader, Plaintiff is required to perform some laboring tasks.
(DSMF 12; PRSMF {f 12.) It is also undisputed that the Group Leader position job description

14

indicates that a Group Leader may perform laboring tasks as required. (PSMF {{ 63, 67; DRSMF
{ 63, 67.) While “reassignment of job duties is not automatically actionable,” the Supreme Court
has explained that “one good way to discourage an employee . . . from bringing discrimination
charges would be to insist that she spend more time performing the more arduous duties and less
time performing those that are easier or more agreeable.” Burlington Northern, 548 U.S. at 70-71.
“Whether a particular reassignment is materially adverse depends upon the circumstances of the
particular case,” and here, it is critical and undisputed that Plaintiff was never demoted, her pay
was never decreased, she was not disciplined by Gallagher or Shickler, and neither Gallagher nor
Shickler denied Plaintiff sick leave or annual leave. (DSMF { 43-46; PRSMF J 43-46.) In the
context of the whole, Plaintiff’s claims of mistreatment are insufficient to establish material
adversity.
2. Prong HI: Causal Connection
“To demonstrate a causal link between protected activity and an employer’s adverse
action, a plaintiff may rely on the temporal proximity between the two if ‘unusually suggestive.’””
Daniels, 776 F.3d at 196 (citing LeBoon v. Lancaster Jewish Cmty. Ass’n, 503 F.3d 217, 232 (3d
Cir. 2007), Marra, 497 F.3d at 302)). “In the absence of such a close temporal proximity, [the
Court] consider[s] the circumstances as a whole, including any intervening antagonism by the
employer, inconsistencies in the reasons the employer gives for its adverse action, and any other
evidence suggesting that the employer had a retaliatory animus when taking the adverse action.
Daniels, 776 F.3d at 196 (citations omitted),
Assuming, arguendo, that Plaintiff could show Defendant’s actions were materially
adverse, Plaintiff has still failed to show that her engagement in protected activity was the cause
of the materially adverse action. It is undisputed that neither Gallagher nor Shickler were named

19

as defendants or participated in any capacity in the prior action in federal court. (DSMF { 36;
PRSMEF { 36.) Neither Gallagher nor Shickler attended any of her court conferences in her federal
district court action. (DSMF J 39; PRSMF 39.) Plaintiff never spoke to Gallagher or Shickler
about her prior action, and they never spoke about it to her. (DSMF {¥ 40-41; PRSMF {lf 40-41.)
Plaintiff has not established any affirmative evidence that Gallagher or Shickler knew of, had any
involvement in, or spoke with her about her prior action. Though it is disputed whether Shickler
or Gallagher had knowledge of or mentioned her prior EEOC complaints (DSMF {Jf 27-28, 30-32;
PRSMF {if 27-28, 30-32), Plaintiff bears the burden of demonstrating Defendant’s actual
knowledge that she engaged in protected activity, Ambrose v. Twp. of Robinson, Pa., 303 F.3d
488, 494 (3d Cir. 2002) (“[F]or protected conduct to be a substantial or motivating factor in a
decision, the decisionmakers must be aware of the protected conduct.”); Daniels, 776 F.3d at 196
(“The plaintiff, however, cannot establish there was a causal connection without some evidence
that the individuals responsible for the adverse action knew of the plaintiff’s protected conduct at
the time they acted.”),
Gallagher was not working at the Trenton PDC when Plaintiff filed her five previous
complaints. (DSMF J 24; PRSMF J 24.) Neither Gallagher nor Shickler were involved in
Plaintiff's prior complaints to the EEOC. (DSMF {[ 26; PRSMF {| 26.) Plaintiff never saw any
documentation evidencing that either Gallagher or Shickler had knowledge of her prior activity or
complaints to the EEOC. (DSMF {[ 29; PRSMF J 29.) Plaintiff admits that she does not know
whether Shickler knew about her prior EEOC activity, that she never spoke to him about it, and
that she has no evidence that he knew about it. (Pl.’s Dep. Tr. 73: 21-23; 74: 21-24; 76:25-77:2,
ECF No. 49-4.)

12

Plaintiff directs the Court to a single comment in a private meeting with Gallagher to show
his knowledge, during which time she stated she was going to file another complaint with the
EEOC, and he responded that he does not care about her complaints. (/d. 55:7-22.) Plaintiff stresses
that his knowledge is evidenced by Gallagher’s pluralization of the word “complaints.” (fd. 61:7-
66:18.) It is not the Court’s role to weigh the evidence or determine Plaintiff’s credibility.
However, taking this statement as true, Plaintiff still fails to show a causal connection because she
is unable to rely on temporal proximity alone. See Mercer v. SEPTA, 608 F. App’x 60, 65 (3d Cir.
2015) (“The adverse action must occur within days, not months, of the protected activity.”);
LeBoon, 503 F.3d at 233 (“[A] gap of three months between the protected activity and the adverse
action, without more, cannot create an inference of causation and defeat summary judgment.”);
Blakney v. City of Phila., 559 F. App’x 183, 186 (3d Cir. 2014) ([A] temporal proximity of greater
than ten days requires supplementary evidence of retaliatory motive.”). Plaintiff is unable to show
that Gallagher had any knowledge of her participation in the district court action, including the
conferences in which she participated. Plaintiff has not been able to demonstrate a pattern of
antagonism, or any other evidence to suggest retaliatory animus. In terms of inconsistencies in
Defendant’s proffered explanation, Plaintiff evinces a discrepancy between Gallagher’s statement
that both Group Leaders had their cubicles relocated, (Gallagher Decl. { 12, ECF No. 49-5), and
the statements of her coworkers that only Plaintiff's cubicle was removed, (Mot. for Summ. J. Ex.
A, Statement of Diamond McSwain {| 5, Statement of Ronald Tressel J 11, Statement of Robert
Whitaker J 10, Statement of Deborah McKenzie § 11, Statement of Alvina Wimbish J 12,
Statement of Hank Hom { 10, ECF No. 52-4.) As stated earlier, even if Plaintiff’s cubicle was the
only one that was removed, reading the facts in the light most favorable to Plaintiff, Plaintiff was
provided another area in which she could complete her paperwork, the Supervisor’s hub, and

1A

Plaintiff also completed her work on a table in the Building Services stockroom in the back of the
building. (PSMF { 83 (citing PL.’s Dep. Tr. 161:8-21).)
For these reasons, assuming Gallagher did have actual knowledge of Plaintiff’s September
14, 2007 complaint, the timeframe is too remote, a single discrepancy in Defendant’s explanation
is insufficient, and the outcome of the discrepancy would not result in a genuine dispute of material
fact. Plaintiff can provide no other evidence to support a causal connection between adverse
actions and her engagement in protected activity. Because Plaintiff cannot show material adversity
or causal connection between her engagement in protected activity and any adverse action,
Plaintiff cannot state a prima facie case of retaliation. Because Plaintiff is unable to state a prima
facie case of retaliation, summary judgment for Defendant is appropriate.
IV. CONCLUSION
For the reasons set forth above, Defendant’s Motion for Summary Judgment is granted.
(Mot. for Summ. J., ECF No. 49.) The Court will enter an Order consistent with this Memorandum
Opinion.
Ti 4
| 2 of / {i
Dated: August 17, 2020 □
ZAWID N. QURAISHL
Usrmbo STATES MAGISTRATE JUDGE

14

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10269117. Public record. Not legal advice.