SPENCE v. STATE OF NEW JERSEY

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

NATALIE SPENCE, No. 1: 19-cv-21490-NLH-KMW

Plaintiff,

OPINION

v.

STATE OF NEW JERSEY, et al.,

Defendants.

APPEARANCES:

DAVID ANDREW BERLIN

MATTHEW BENJAMIN WEISBERG

WEISBERG LAW

7 SOUTH MORTON AVENUE

MORTON, PA 19070

GARY SCHAFKOPF

HOPKINS & SCHAFKOPF, LLC

11 BALA AVENUE

BALA CYNWYD, PA 19004

Attorneys for Plaintiff.

DAVEON MAXICI GILCHRIST

JOHN P. CASCIO

STATE OF NEW JERSEY

OFFICE OF THE ATTORNEY GENERAL

25 MARKET ST

PO BOX 112

TRENTON, NJ 08625

Attorneys for Defendants.

HILLMAN, District Judge

This case comes before the Court on Defendants’ motion to

dismiss Plaintiff Natalie Spence’s claims for sexual harassment

and retaliation in violation of the New Jersey Law Against

Discrimination (“NJLAD”) and Title VII of the Civil Rights Act

of 1964. For the reasons expressed below, Defendants’ motion

will be granted in part and denied in part.

BACKGROUND

On June 26, 2017, Plaintiff was hired as a Judiciary Clerk

in the Camden Vicinage Child Support Division of the Camden

County Probation Department. Plaintiff alleges that within a

few days of beginning her job, Defendant John Callender, a co-

worker who had been assigned to train her in the position, began

to sexually harass her. “For example, while Plaintiff, Natalie

Spence was sitting at her cubicle, Defendant, Callender

approached Plaintiff, stood in front of Plaintiff with his groin

in close proximity to Plaintiff’s face, began asking her

inappropriate, personal questions and attempted to

inappropriately touch her.” (ECF No. 23 at ¶ 15).

After experiencing this initial behavior, Plaintiff

reported it to her supervisor, Renata Kiersnowski. Rather than

taking any action, however, Kiersnowski told Plaintiff that

Callender was not a threat and that she should be patient with

him. Over the course of the next few weeks, Callender’s

behavior continued. Plaintiff’s Amended Complaint alleges that:

•

“Callender (i) would approach Plaintiff, Natalie Spence

from behind and push his groin into her while Plaintiff

was attempting to file paperwork into a cabinet or other

activities; (ii) would attempt to make unnecessary and

[off-putting] physical contact; and, (iii) would blow

kisses at Plaintiff”;

•

“On or about July 6, 2017, during the annual Probation

Division BBQ, Defendant, Callender again approached

Plaintiff, Natalie Spence and made sexually offensive

comments and gestures to Plaintiff using a hot dog”;

•

At the same BBQ, Callender and “approached Plaintiff while

in his undershirt and again made sexually offensive

gestures towards Plaintiff, Natalie Spence’s direction

while straddling a chair” and “then, while staring at

Plaintiff, Natalie Spence, stood, put on his workshirt,

unzipped his pants, and began tucking in his shirt while

making sexual noises.”

Id. at ¶¶ 21-27.

On multiple occasion during this period, Plaintiff informed

Callender that his behavior was unwelcome and inappropriate, and

told him to stop touching her; Callender responded by telling

Plaintiff that no one would believe her complaints, because she

was on probation due to having only recently started in her

position. Plaintiff again reported Callender’s behavior to

Kiersnowski after the BBQ, but Kiersnowski again failed to take

any action. Shortly after, in mid-July, Plaintiff received a

negative career progression report, which stated that she did

not meet expectations in various areas — Plaintiff alleges that

this report was given in retaliation for her second report

concerning Callender’s behavior.

After the negative career progress report, Plaintiff

reported Callender’s behavior to Defendant Cornell Williamson.

Then, in September of 2017, Williamson transferred Plaintiff to

the separate Administration Unit of the Camden County Probation

Department. There, Plaintiff was apparently treated with

hostility by her co-workers, before ultimately being transferred

a third time to the Burlington County Superior Court.

At some point, Defendant filed a claim with the Equal

Employment Opportunity Commission, who provided her with a right

to sue letter. Finally, on December 17, 2019, Plaintiff filed a

complaint in this Court. (ECF No. 1). After Defendants filed a

motion to dismiss that complaint, (ECF No. 22), Plaintiff filed

the currently operative Amended Complaint on July 9, 2020. (ECF

No. 23). The Court then issued an order denying the initial

motion to dismiss as moot. (ECF No. 26).

Plaintiff’s Amended Complaint names as Defendants the State

of New Jersey, the New Jersey State Judiciary, John Callender,

Renata Kiersnowski, and Cornell Williamson. It specifically

brings claims against all defendants for both sexual harassment

causing a hostile work environment and retaliation in violation

of both the NJLAD and Title VII. On September 10, 2020,

Defendants filed a second motion to dismiss all claims, (ECF No.

28), which Plaintiff has opposed. (ECF No. 30). The motion is

fully briefed, and therefore ripe for adjudication.

Discussion

A. Subject Matter Jurisdiction

The Court has original federal question jurisdiction over

Plaintiff's federal claims under 28 U.S.C. § 1331, and has

supplemental jurisdiction over the New Jersey state law claims

pursuant to 28 U.S.C. § 1367(a).

B. Legal Standards Governing Motions to Dismiss

When considering a motion to dismiss a complaint for

failure to state a claim upon which relief can be granted

pursuant to Federal Rule of Civil Procedure 12(b)(6), a court

must accept all well-pleaded allegations in the complaint as

true and view them in the light most favorable to the plaintiff.

Evancho v. Fisher, 423 F.3d 347, 351 (3d Cir. 2005). It is well

settled that a pleading is sufficient if it contains “a short

and plain statement of the claim showing that the pleader is

entitled to relief.” Fed. R. Civ. P. 8(a)(2).

“While a complaint attacked by a Rule 12(b)(6) motion to

dismiss does not need detailed factual allegations, a

plaintiff’s obligation to provide the ‘grounds’ of his

‘entitle[ment] to relief’ requires more than labels and

conclusions, and a formulaic recitation of the elements of a

cause of action will not do . . . .” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007) (alteration in original)

(citations omitted) (first citing Conley v. Gibson, 355 U.S. 41,

47 (1957); Sanjuan v. Am. Bd. of Psychiatry & Neurology, Inc.,

40 F.3d 247, 251 (7th Cir. 1994); and then citing Papasan v.

Allain, 478 U.S. 265, 286 (1986)).

To determine the sufficiency of a complaint, a court must

take three steps: (1) the court must take note of the elements a

plaintiff must plead to state a claim; (2) the court should

identify allegations that, because they are no more than

conclusions, are not entitled to the assumption of truth; and

(3) when there are well-pleaded factual allegations, a court

should assume their veracity and then determine whether they

plausibly give rise to an entitlement for relief. Malleus v.

George, 641 F.3d 560, 563 (3d Cir. 2011) (quoting Ashcroft v.

Iqbal, 556 U.S. 662, 664, 675, 679 (2009) (alterations,

quotations, and other citations omitted).

A district court, in weighing a motion to dismiss, asks

“not whether a plaintiff will ultimately prevail but whether the

claimant is entitled to offer evidence to support the claim.”

Twombly, 550 U.S. at 563 n.8 (quoting Scheuer v. Rhoades, 416

U.S. 232, 236 (1974)); see also Iqbal, 556 U.S. at 684 (“Our

decision in Twombly expounded the pleading standard for ‘all

civil actions’ . . . .”); Fowler v. UPMC Shadyside, 578 F.3d

203, 210 (3d Cir. 2009) (“Iqbal . . . provides the final nail in

the coffin for the ‘no set of facts’ standard that applied to

federal complaints before Twombly.”). “A motion to dismiss

should be granted if the plaintiff is unable to plead ‘enough

facts to state a claim to relief that is plausible on its

face.’” Malleus, 641 F.3d at 563 (quoting Twombly, 550 U.S. at

570).

A court in reviewing a Rule 12(b)(6) motion must only

consider the facts alleged in the pleadings, the documents

attached thereto as exhibits, and matters of judicial notice.

S. Cross Overseas Agencies, Inc. v. Kwong Shipping Grp. Ltd.,

181 F.3d 410, 426 (3d Cir. 1999). A court may consider,

however, “an undisputedly authentic document that a defendant

attaches as an exhibit to a motion to dismiss if the plaintiff’s

claims are based on the document.” Pension Benefit Guar. Corp.

v. White Consol. Indus., Inc., 998 F.2d 1192, 1196 (3d Cir.

1993). If any other matters outside the pleadings are presented

to the court, and the court does not exclude those matters, a

Rule 12(b)(6) motion will be treated as a summary judgment

motion pursuant to Rule 56. Fed. R. Civ. P. 12(b).

C. Analysis

As described above, Plaintiff has asserted claims for

sexual harassment and retaliation in violation of both Title VII

and the NJLAD.1 This Court’s inquiry into claims of

discrimination “is the same for claims filed under Title VII and

the NJLAD as the New Jersey statute borrows the federal

standard.” Tourtellotte v. Eli Lilly and Co., 636 F. App’x.

831, 843 (3d Cir. 2016). Employment discrimination claims under

both Title VII and NJLAD are governed by the burden-shifting

framework of McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). Cotto v. Ardagh Glass Packing, Inc., No. 18-1037

(RBK/AMD), 2018 WL 381427, at *3 (D.N.J. Aug. 10, 2018) (“New

Jersey courts have adopted the framework of McDonnell Douglas

Corp. v. Green, 411 U.S. 792 (1973), as the starting point in

actions brought under the LAD.”) (citing Andersen v. Exxon Co.,

U.S.A., 89 N.J. 483, 492 (1982)). Accordingly, courts

frequently analyze related claims under both statutes

coextensively. See Tourtellote, 636 F. App’x. at 843.

While the first step in the McDonnell-Douglas framework

requires the plaintiff to demonstrate the existence of a prima

facie case of discrimination, the Third Circuit has explained

1 The Amended Complaint references both Plaintiff’s race and sex

as potential bases for her discrimination claims. (ECF No. 23

at ¶ 39). However, as Defendants note, the complaint makes no

other reference to Plaintiff’s race, and contains no allegations

that her race played a role in the alleged discriminatory

conduct, instead focusing entirely on claims related to her sex.

Accordingly, to the extent that Plaintiff intended to allege

claims of racial discrimination under Title VII or the NJLAD,

the Court finds that she has failed to adequately do so and will

dismiss those claims without prejudice.

that, “at least for purposes of pleading sufficiency, a

complaint need not establish a prima facie case in order to

survive a motion to dismiss.” Connelly v. Lane Const. Corp.,

809 F.3d 780, 788 (3d Cir. 2016). Since “[a] prima facie case

is ‘an evidentiary standard, not a pleading requirement,’” the

Third Circuit has made clear that it is “not a proper measure of

whether a complaint fails to state a claim.” Id. at 789

(quoting Swierkiewicz v. Sorema, N.A., 534 U.S. 506, 510 (2002)

and then Fowler v. UPMC Shadyside, 578 F.3d 203, 213 (3d Cir.

2009)). Instead, “at this early stage of the proceedings, it is

enough for Connelly to allege sufficient facts to raise a

reasonable expectation that discovery will uncover proof of her

claims.” Id.

But “[w]hile Plaintiff need not establish the elements of a

prima facie case in [her] complaint, the Court nevertheless

finds that the McDonnell Douglas elements provide guidance in

assessing whether Plaintiff has stated a plausible claim under

the pleading standards of Twombly and Iqbal.” Petruska v.

Rickett Benckiser, LLC, No. 14-03663 (CCC), 2015 WL 1421908, at

*6 (D.N.J. Mar. 26, 2015). Accordingly, the Court will center

its analysis of Plaintiff’s claims and the present motion to

dismiss around the elements of a prima facie showing of each of

her specific claims.

1. Claims Against Individual Defendants

Before turning to the substance of Plaintiff’s claims, the

Court must first address the status of her claims as asserted

against the individual defendants in this action. As stated

above, the Amended Complaint asserts Plaintiff’s claims under

both Title VII and the NJLAD against not only the State and the

State Judiciary, but also against three individual employees.

However, in her brief opposing the motion to dismiss, Plaintiff

states that she “respectfully withdraws her claims against

Defendants, John Callender, Cornell Williamson, and Renata

Kiersnowski without prejudice” — although without providing any

explanation as to why. (ECF No. 30 at 11). Defendant, faced

with this concession, argues that her claims must be dismissed

with prejudice instead.

Regardless of the reason for Plaintiff’s decision not to

defend her claims against the individual defendants, the Court

first notes that “Third Circuit jurisprudence is clear that

Title VII does not subject individual supervisory employees to

liability.” Simon v. Shore Cab, LLC, No. 13-6290, 2014 WL

2777103, at *5 (D.N.J. June 19, 2014) (citing Sheridan v. E.I.

DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir. 1996);

Newsome v. Admin. Off. of the Cts. of the State of N.J., 51 F.

App'x 76, 79 n.1 (3d Cir. 2002); Emerson v. Thiel Coll., 296

F.3d 184, 190 (3d Cir. 2002)). “Furthermore, courts in this

District routinely dismiss Title VII claims brought against

individuals in their official capacities because ‘Title VII

provides for liability against employers, not supervisors.

Naming a supervisor as a defendant in his official capacity is

redundant especially when ... the employer is also named as a

Defendant.’” Dukes v. New Jersey Transit, No. 16-08947, 2020 WL

4932525, at *2 (D.N.J. Aug. 24, 2020) (quoting Simon, 2014 WL

2777103 at *5). Accordingly, as these claims could not be

sustained in a future complaint, Plaintiff’s Title VII claims

against the individual defendants will be dismissed with

prejudice.

However, “[u]nlike its federal counterpart, the [NJLAD]

does impose individual liability.” Ross-Tiggett v. Reed Smith

LLP, No. 15-8083, 2016 U.S. Dist. LEXIS 113554, at *19-20, 2016

WL 4491633 (D.N.J. Aug. 24, 2016); see N.J.S.A. 10:5-12e (NJLAD

makes it unlawful “[f]or any person, whether an employer or an

employee or not, to aid, abet, incite, compel or coerce the

doing of any of the acts forbidden under this act, or to attempt

to do so.”). While Defendant argues that Plaintiff’s failure to

oppose these arguments requires dismissal with prejudice, the

cases they cite in support of that argument simply hold that

failure to oppose an argument for dismissal is a basis for

granting the motion as to that claim; here, there is no question

that Plaintiff has failed to oppose the motion to dismiss as to

her claims against the individual defendants, and her claims

against them will be dismissed. However, given that the NJLAD

does impose individual liability against employees in some

circumstances, and the Court will, as explained below, grant

Plaintiff leave to file an amended complaint, the Court will

dismiss those claims without prejudice.

2. Sexual Harassment Claims

The Court next turns to Plaintiff’s claims against the

State of New Jersey and the State Judiciary. Plaintiff first

alleges that Callender’s actions constituted sexual harassment

and created a hostile work environment for her. To establish a

claim for a hostile work environment based on sexual harassment

under either Title VII or the NJLAD, a plaintiff must “show that

1) the employee suffered intentional discrimination because of

his/her [membership in a protected class such as sex], 2) the

discrimination was severe or pervasive, 3) the discrimination

detrimentally affected the plaintiff, 4) the discrimination

would detrimentally affect a reasonable person in like

circumstances, and 5) the existence of respondeat superior

liability.” Larochelle v. Wilmac Corporation, 769 F. App’x. 57,

61 3d Cir. 2019) (quoting Castleberry v. STI Grp., 863 F.3d 259,

263 (3d Cir. 2017)). “The first four elements of this claim

establish that a hostile work environment existed. The fifth

element ... establishes the basis on which to hold the employer

liable.” Huston v. Procter & Gamble Paper Prods. Corp., 568

F.3d 100, 104 (3d Cir. 2009).

Unsurprisingly, the standard for establishing respondeat

superior liability differs based on whether the individual

performing the sexually harassing behavior is the plaintiff’s

supervisor or a non-supervisory co-worker. Id. When the

individual alleged to be creating the hostile work environment

is a co-worker, as Callender was here, the employer is liable

“only if [(1)] the employer failed to provide a reasonable

avenue for complaint or . . . [(2)] the employer knew or should

have known of the harassment and failed to take prompt and

appropriate remedial action.” In re Tribune Media Co., 902 F.3d

384, 400 (3d Cir. 2018).

In their moving brief, Defendants appear to entirely

concede elements 1, 3, and 4, arguing only that “[i]n this

matter, Plaintiff cannot meet the second and fifth elements.”

(ECF No. 28-4 at 11). And while Defendants briefly state that

Plaintiff cannot demonstrate respondeat superior liability here,

their moving brief presents no argument on this front

whatsoever, instead focusing entirely on the question of whether

the alleged harassment was severe or pervasive.

The Court notes that Defendants’ reply brief further argues

that Plaintiff does not adequately allege that she was

demonstrably affected by Callender’s behavior, that Callender’s

statement that no one would believe Plaintiff’s complaints about

his behavior was not related to her sex, and provides an actual

argument as to why Plaintiff has similarly not adequately pled

respondeat superior liability. “However, it is well-established

that new arguments cannot be raised for the first time in reply

briefs.” Pitman v. Ottehberg, No. 10–2538 (NLH/KMW), 2015 WL

179392, at *9 (D.N.J. Jan. 14, 2015) (quoting Elizabethtown

Water Co. v. Hartford Cas. Ins. Co., 998 F. Supp. 447, 458

(D.N.J. 1998)). Accordingly, these three “[a]rguments raised

for the first time in [Defendants’] reply brief will be

disregarded.” Thomas v. Correctional Medical Services, Inc.,

No. 1:04–cv–3358 (NLH), 2009 WL 737105, at *13 (D.N.J. March 17,

2009) (citing Bayer AG v. Schein Pharmaceutical, 129 F. Supp. 2d

705, 716 (D.N.J. 2001)).2

The remaining question at this stage then is whether

Plaintiff has alleged sufficient facts to raise a reasonable

expectation that discovery will uncover proof that the alleged

harassment was either severe or pervasive enough to have created

a hostile work environment. “‘[S]everity’ and ‘pervasiveness’

2 The Court notes that, even if Defendants had put forth a

genuine argument in their moving brief regarding respondeat

superior liability, the argument as framed in their reply brief

would fail. Plaintiff has clearly alleged that she reported her

harassment to multiple superiors on three separate occasions,

and that both Kiersnwoski and Williamson failed to take any

remedial action or to stop Callender’s continued behavior.

are alternative possibilities: some harassment may be severe

enough to contaminate an environment even if not pervasive;

other, less objectionable, conduct will contaminate the

workplace only if it is pervasive.” Castleberry, 863 F.3d at

264. In analyzing the severity or pervasiveness of a

plaintiff’s claims, “a court must consider the totality of the

circumstances, including ‘the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee's work performance.’”

Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167 (3d Cir.

2013) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 23

(1993)). The Court may not “parse[] out each event and view[]

them separately, rather than as a whole.” Id. at 168.

Here, Defendants argue that Plaintiff’s allegations

demonstrate neither severe nor pervasive harassment; according

to Defendants, “the comments and conduct alleged are minor

innocuous slights or possibly inappropriate isolated comments

and could not establish an abusive environment.” (ECF No. 28-4

at 12-13). Plaintiff, for her part, concedes that “no single

event described by Plaintiff[] would necessarily rise to the

level of severe,” arguing instead that “the ongoing and regular

sexual comments and physical contacts rise to the level of

pervasive . . .” (ECF No. 30 at 6).

Defendants are correct that, were Plaintiff’s only

allegations a series of claims that Callender had blown kisses

at her, asked her “inappropriate, personal questions,” and made

sporadic “sexually offensive comments and gestures,” such

allegations without further detail certainly would not qualify

as sufficiently pervasive to sustain claims under Title VII or

the NJLAD. As the Third Circuit has made clear, “[u]nless

extremely serious, offhand comments and isolated incidents are

insufficient to sustain a hostile work environment claim” on

their own. Chinery v. Am. Airlines, 778 F. App'x 142, 145 (3d

Cir. 2019). However, in attempting to downplay Callender’s

alleged harassment, Defendants have ignored the more serious of

Plaintiff’s allegations.

In her Amended Complaint, Plaintiff not only alleges that

Callender attempted to inappropriately touch her on repeated

occasions, but more specifically that he had also approached her

“from behind and push[ed] his groin into her while Plaintiff was

attempting to file paperwork into a cabinet or other

activities.” (ECF No. 23 at ¶ 21). In their reply brief,

Defendants appear to dispute whether this is an allegation of

actual contact or merely an attempt to do so, stating “[i]t is

undisputed that Defendant Callender did not touch Plaintiff, as

each incident she describes as an ‘attempt.’” (ECF No. 31 at

5). While Plaintiff’s opposition brief does refer to “continued

attempts to push a groin into [her] buttocks,” this could just

as easily be interpreted to refer to additional attempts to do

so after he had initially made such inappropriate physical

contact with her. Given the Court’s duty to interpret the

complaint in the light most favorable to Plaintiff in assessing

a motion to dismiss, the Court reads her allegations to assert

actual physical contact on one at least one occasion, rather

than mere attempts.

However, the question still remains whether, even assuming

that Callender did in fact make such contact, Plaintiff has put

forth “‘sufficient factual allegations to raise a reasonable

expectation that discovery will reveal evidence’ of the elements

of the prima facie case.” Cotto, 2018 WL 3814278 at *3 (quoting

Connelly, 809 F.3d at 789). The Court finds that Plaintiff has

failed to make such a showing at this stage.

As mentioned above, Plaintiff concedes that her allegations

are insufficient to show severity, and instead relies on the

argument that the harassment she suffered was pervasive enough

to advance past the pleadings stage; Defendant, in moving to

dismiss, largely relies on case law stating that allegations of

a few isolated incidents do not meet the burden imposed on a

plaintiff alleging the existence of a hostile work environment.

Plaintiff, for her part, cites to no case law at all to

demonstrate that she has met her burden in opposing the motion

to dismiss. Instead, the section of her opposition brief

addressing this element simply repeats word-for-word the

allegations from her complaint, states that “[a]ny reasonable

woman, after repeatedly telling a man to stop, would find

continued attempts to push a groin into their buttocks while

attempting to file as offensive and utterly beyond a mere

violation of the civility code as Defendants argue,” and further

claims that Callender’s conduct “occurred in private and in

public.” (ECF No. 30 at 5-6).

The Court of course agrees that the physical contact

described by Plaintiff is inappropriate and offensive, and has

no place either inside or outside of the office. However, that

is not the standard by which claims under Title VII or the NJLAD

are assessed. The Third Circuit, for example, has previously

held that pervasiveness had not been shown when a plaintiff

suffered “no more than four incidents during the span of two

weeks,” even though those incidents involved a co-worker

exposing herself to the plaintiff and grabbing his groin on

separate occasions. See Bacone v. Philadelphia Housing

Authority, 112 F. App’x. 127, 129 (3d Cir. 2004). Similarly,

many other courts presented with cases involving isolated

incidents of physical touching have, on summary judgment,

ultimately found the conduct not sufficient to reach the level

of severe or pervasive. See Saidu-Kamara v. Parkway Corp., 155

F. Supp. 2d 436, 439-440 (E.D. Pa. 2001) (defendant, over 18-

month span, touching plaintiff’s breast; propositioning her for

sex; offering her money to go out with him; removing a bottle of

wine from his pants, asking her to join him later at a local

hotel for a “good time,” and again touching her breasts and

buttocks insufficient); Bonora v. UGI Utilities, Inc., No.

CIV.A. 99-5539, 2000 WL 1539077, at *4 (E.D. Pa. Oct. 18, 2000)

(defendant touching plaintiff’s hand, brushing his buttocks

against hers, and touching her waist insufficient); McGraw v.

Wyeth-Ayerst Lab., Inc., No. CIV. A. 96-5780, 1997 WL 799437, at

*6 (E.D. Pa. Dec. 30, 1997) (defendant kissing plaintiff,

touching her face, asking her out on dates, inquiring about her

marriage insufficient).

Of course, it must be noted that these cases were decided

on summary judgment, where the plaintiffs had the burden of

actually demonstrating their prima facie case. However, while

Plaintiff is held to a lower burden at the pleadings stage, the

Court must still take into consideration the showing she will

need to make to prove her hostile work environment claim in

determining whether her allegations raise a reasonable

expectation that she will be able to prove that Callender’s

harassment was sufficiently pervasive.

Even viewing Plaintiff’s claims in the light most favorable

to her, the Court finds that she has not met that burden —

mainly because her complaint largely relies on generalized

allegations without sufficient details or specifics to assess

the actual pervasiveness of the conduct in question. Starting

with the non-physical conduct, Plaintiff has only described two

specific incidents in detail: one in which Callender stood with

his groin near her face and asked her “inappropriate, personal

questions,” and another in which, at an office BBQ, he “made

sexually offensive comments and gestures to Plaintiff using a

hot dog,” later made “sexually offensive gestures” towards her

while straddling a chair, and then made “sexual noises” while

tucking his shirt in and staring at her. Outside of these

incidents, Plaintiff relies on generalized allegations that he

would blow kisses at her, attempt to make inappropriate contact,

and make inappropriate sexual comments; and, of course, her

allegation that he had pressed his groin into her.

However, Plaintiff’s complaint includes no attempt to

describe how often any of these actions occurred, nor the exact

time frame over which the harassment took place. For example,

while Plaintiff appears to imply that Callender’s pushed his

groin into her on more than one occasion, she does not state

that specifically or explain how many times that occurred, and

her opposition brief, as quoted above, only states that he

attempted to do so again — not that he actually did. Nor does

Plaintiff’s complaint include any allegations regarding the

impact of Callender’s conduct on her ability to do her job.

Instead, the Amended Complaint merely implies that some

forms of the alleged conduct occurred more than once, and

alleges that Callender continued to harass her “on a regular

basis until her transfer to Burlington County Superior Court” —

without stating how “regular” the incidents were or when her

transfer actually occurred. (ECF No. 23 at ¶ 14). But as the

case law cited above makes clear, the number of incidents and

the specific time frame they occurred within matters in

determining whether harassment was so pervasive as to rise to

the level of a Title VII or NJLAD violation, and even a handful

of incidents of physical contact may not suffice.

Another court in this circuit recently faced with a sexual

harassment claim denied a motion to dismiss where the plaintiff

had alleged that he “was subject to sexual advances ‘at least

once or twice a week,’” that a co-worker had grabbed his

buttocks, and where he had been threatened with violence.

Hewitt v. BS Transportation of Illinois, LLC, 355 F. Supp. 3d

227, 236 (E.D. Pa. 2019). That claim survived a motion to

dismiss, however, not only because of the physical threat, but

also because the plaintiff there alleged that the sexual

advances occurred at least once or twice a week over a period of

time spanning at least two years. Id. at 231. While Plaintiff

need not plead that she was harassed for that long of a time

period, this case demonstrates the lack of specificity found

here, where the Court has no ability to assess just how many

incidents occurred, nor exactly how long the harassment

continued for.

The Court recognizes that “detailed pleading is not

generally required” to defeat a motion to dismiss. Connelly,

809 F.3d at 786. However, a plaintiff bringing an employment

discrimination claim must still demonstrate a reasonable

expectation that she will ultimately be able to prove her prima

facie case. Plaintiff here appears to be alleging around four

or five individual incidents in the span of her first two weeks

of work, with the implication that more may have occurred, and

then an undefined reoccurrence of this conduct after that time

period. The specific allegations from the first two weeks, on

their own, appear insufficient to prove pervasiveness under this

Circuit’s case law. See Bacone, 112 F. App’x. at 129

(pervasiveness not proven when a plaintiff suffered “no more

than four incidents during the span of two weeks,” even though

those incidents involved a co-worker exposing herself to the

plaintiff and grabbing his groin on separate occasions). And

without further information as to how many other incidents there

were, what “inappropriate, personal questions” were asked or

what sexual comments were made, or some further allegations

regarding the extent to which Callender’s behavior impacted

Plaintiff’s ability to work, this Court simply cannot find at

this stage that Plaintiff has demonstrated a reasonable

expectation that, after discovery, she will be able to meet the

high bar of proving a hostile work environment claim.

Defendants’ motion to dismiss the hostile work environment

claims will therefore be granted. However, as described above,

it is entirely possible that Plaintiff may, in a further amended

complaint with additional details, be able to meet her burden

and put forth factual allegations that are adequate to proceed

past the pleadings stage. See Hewitt, 355 F. Supp. 3d at 236.

Accordingly, the Court will dismiss Plaintiff’s claims without

prejudice, and will grant her leave to file an amended

complaint, within thirty days, that addresses the deficiencies

outlined in this Opinion.3

3 The Court notes that Defendants further state that even if

Plaintiff had pled a prima facie case of discrimination,

Plaintiff’s “claim fails as a matter of law because Defendants

had legitimate non-discriminatory reasons for its actions and

Ms. Davis cannot prove pretext.” (ECF No. 28-4 at 7). “On a

motion for summary judgment, if a plaintiff establishes a prima

facie case of employment discrimination under Title VII, the

defendant is entitled to assert a legitimate business reason for

the plaintiff's termination as part of the burden shifting

paradigm under McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973). However, such an analysis is not appropriate on a motion

to dismiss.” Baldwin v. Gramiccioni, No. 16-1675 (FLW) (DEA),

2017 WL 120643, at *9 n.12 (D.N.J. Jan. 11, 2017). See also

Castleberry v. STI Group, 863 F.3d 259, 266 (3d Cir. 2017)

(“Under the McDonnell-Douglas framework, a claim of employment

3. Retaliation Claims

Plaintiff next brings claims for retaliation under both

Title VII and the NJLAD. Retaliation claims under these

statutes are again analyzed under the same standard and the

McDonnell-Douglas framework. Tourtellote, 636 F. App’x. at 841.

A claim of discriminatory retaliation has three elements: (1)

plaintiff “engaged in conduct protected by Title VII [or the

NJLAD]; (2) the employer took adverse action against her; and

(3) a causal link exists between her protected conduct and the

employer’s adverse action.” Connelly, 809 F.3d at 789; Davis v.

City of Newark, 417 F. App’x 201, 202 (3d Cir. 2011). As above,

Plaintiff need only “plead[] sufficient factual allegations to

raise a reasonable expectation that discovery will reveal

evidence” of these elements. Connelly, 809 F.3d at 789.

Defendants argue that Plaintiff has failed to adequately

allege any of the three elements of a prima facie case of

retaliation. First, they argue that Plaintiff did not engage in

protected activity. “[P]rotected ‘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 v. Sch. Dist. of Phila.,

discrimination necessarily survives a motion to dismiss so long

as the requisite prima facie elements have been established.”).

776 F.3d 181, 193 (3d Cir. 2015) (quoting Curay–Cramer v.

Ursuline Acad. of Wilmington, Del., Inc., 450 F.3d 130, 135 (3d

Cir.2006). Defendants specifically argue that because Plaintiff

has failed to state a claim for hostile work environment, her

actions in reporting Callender’s conduct does not qualify as

protected activity. (ECF No. 28-4 at 16-17).

However, Defendants misstate the actual standard: “a

plaintiff need not prove the merits of the underlying

discrimination complaint, but only that ‘[s]he was acting under

a good faith, reasonable belief that a violation existed.’”

Boykins v. SEPTA, 722 F. App’x. 148, 157 (3d Cir. 2018) (quoting

Aman v. Cort Furniture Rental Corp., 85 F.3d 1074, 1085 (3d Cir.

1996)). Accordingly, a plaintiff is not required to be correct

that the conduct they reported was in fact a violation of Title

VII or the NJLAD, so long as they reasonably believed it to be.

Here, although the Court will dismiss Plaintiff’s hostile work

environment claims, it does so only after in-depth analysis, and

will do so without prejudice out of recognition that Plaintiff

may in fact be able to adequately state a claim. The Court has

little trouble in finding that Plaintiff’s allegations would

support an objectively reasonable belief that Callender’s

inappropriate behavior towards her was unlawful under Title VII

when she made complaints to Kiersnowski and Williamson.

Defendant next argues that “Plaintiff has never been

subjected to any adverse employment action,” because she was

“never terminated or disciplined.” (ECF No. 28-4 at 18). For

an employer's action to qualify as an adverse employment action,

however, the plaintiff does not need to have been terminated or

disciplined; she simply “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, 776 F.3d at 195 (quoting Burlington N. & Santa Fe Ry.

Co. v. White, 548 U.S. 53, 68 (2006)); see also Moore v. City of

Philadelphia, 461 F.3d 331, 341-42 (3d Cir. 2006) (“[A]

plaintiff claiming retaliation under Title VII must show that a

reasonable employee would have found the alleged retaliatory

actions ‘materially adverse’ in that they ‘well might have

dissuaded a reasonable worker from making or supporting a charge

of discrimination.’”).

As Plaintiff points out, courts in this Circuit have

previously recognized that “[a] negative performance review

[can] be an adverse employment action.” Stevens v. City of

Philadelphia, No. CV 17-4853, 2018 WL 3328057, at *2 (E.D. Pa.

July 6, 2018) (citing Rosati v. Colello, 94 F.Supp.3d 704, 718

(E.D. Pa. 2015)). Similarly, courts have recognized that a

transfer may constitute and adverse employment action. The

Court recognizes that some courts in this circuit have

previously rejected, on summary judgment, retaliation claims

based on purely lateral transfers. See Haynes v. Smith, 2006 WL

543645, at *9 (D.N.J. March 2, 2006) (“[W]here the transfer does

not affect the ‘job description or terms of employment’ and has

no ‘objectively harmful or negative effects,’ it cannot be said

that the transfer ‘was adverse or disparate.’”); O'Neal v.

Brownlee, No. 03-5535, 2004 WL 2827052, at *6 (E.D. Pa. Dec. 9,

2004)(“While in certain circumstances a transfer or reassignment

may be materially adverse action,...a purely lateral transfer,

which does not involve a change in pay or a demotion in any

other form, does not constitute an adverse employment action.”).

However, many of these cases were not only decided on

summary judgment, rather than a motion to dismiss, they also

pre-date the Supreme Court’s clarification in Burlington N. &

Santa Fe Ry. Co. v. White, 548U.S. 53, 126 S.Ct. 2405, 165

L.Ed.2d 345 (2006) that Title VII retaliation claims do not

require that an action “alters the employee's compensation,

terms, conditions, or privileges of employment, deprives him or

her of employment opportunities, or adversely affects his or her

status as an employee” to be considered materially adverse. See

Moore, 461 F.3d at 341 (describing the Burlington decision and

the new standard for materially adverse employment actions under

Title VII).

Here, the Court finds that Plaintiff has sufficiently

raised a reasonable expectation that she will be able to

demonstrate an adverse employment action after discovery. Both

negative performance reviews and transfers can, in certain

circumstances, constitute adverse employment actions, and “a

reasonable person in the plaintiff's position,” having recently

started a new job, might well be dissuaded from making further

complaints about harassment after receiving a negative

performance review or being transferred in response to the

filing of previous complaints. While the Court again reaches no

conclusion as to whether Plaintiff has demonstrated her prima

facie case at this stage, she has at least raised a reasonable

expectation that she will be able to at a later stage in this

proceeding.4

The final question then is whether Plaintiff has pled

sufficient allegations regarding the third element, a causal

connection between the protected activity and the adverse

employment action. Plaintiff acknowledges in her opposition

4 In their reply brief, Defendants further argue that Plaintiff

has not suffered an adverse employment action because she

actually received a promotion and a raise, Callender was

admonished, and she was encouraged to file an EEOC report. (ECF

No. 31 at 7-8). However, none of these facts appear in the

Amended Complaint, and are arguments more properly raised on a

motion for summary judgment. As the Court may not consider

extraneous evidence or facts that go beyond the allegations of

the complaint on a motion to dismiss, it will not consider these

arguments here.

brief that she is relying entirely on the temporal proximity

between her reports and the two adverse actions to show a causal

connection. “To 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.’”

Daniels, 776 F.3d at 196 (quoting LeBoon v. Lancaster Jewish

Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007)). However,

when plaintiffs rely purely on temporal proximity, “‘where the

temporal proximity is not so close as to be unduly suggestive,’

[they] have not alleged any facts from which a fact finder could

reasonably discern” a causal connection. Lasche v. New Jersey,

No. 18-17552 (FLW)(TJB), 2019 WL 4727922, at *14 (D.N.J. Sept.

26, 2019).

Here, Plaintiff has put forth two separate adverse

employment actions, with two different timeframes. Plaintiff

first alleges that after she started work on June 26, 2017, she

quickly made a first complaint and then followed it with a

second complaint either on July 7, or shortly thereafter; she

then alleges that by mid-July, she received the negative

performance review. Such close temporal proximity between her

complaints and the adverse employment action is “unduly

suggestive” of a causal connection, and the Court therefore

finds that Plaintiff has adequately pled her retaliation claim

as to that allegedly retaliatory act. Lichtenstein v. Univ. of

Pittsburgh Med. Ctr., 691 F.3d 294, 302 (3d Cir. 2012)

(“‘Although there is no bright line rule as to what constitutes

unduly suggestive temporal proximity,’ the temporal proximity in

this case [one week] is in the realm of what this Court and

others have found sufficient at the prima facie stage.”)

(quoting LeBoon, 503 F.3d at 233).

However, the same cannot be said of Plaintiff’s transfer.

Plaintiff alleges that after receiving the negative career

progression report from Kiersnowski, she then reported

Callender’s harassment to Williamson. The Court finds that

Plaintiff has not raised a reasonable expectation that she will

be able to prove a causal connection after discovery.

Despite relying entirely on temporal proximity to support

her retaliation claims, “Plaintiff does not provide an exact

date on which the [report or transfer] occurred, so temporal

proximity cannot be precisely measured.” Yeakel v. Cleveland

Steel Container Corp., No. 09–5680, 2011 WL 536536, at *5 (E.D.

Pa. Feb. 15, 2011). See also Reeder v. Hagan, 2020 WL 7699481,

at *6 (E.D. Pa. Dec. 28, 2020) (granting motion to dismiss

retaliation claim where Plaintiff did “not provide any dates for

when these events took place. It is impossible to determine

whether there is an unusually suggestive temporal proximity”).

Given Plaintiff’s allegation that she made the report to

Williamson following her receiving of the negative career

progression report in mid-July, it appears that, even viewing

the allegations in the light most favorable to Plaintiff, she

made the report to Williamson in July. However, Plaintiff

alleges that she was not transferred to the Administration Unit

by Williamson until September. Such a timeline would raise

significant doubt regarding temporal proximity, as the Third

Circuit has previously rejected arguments for causal connection

based on similar, and even shorter, temporal proximity

allegations. See, e.g., Choy v. Comcast Cable Communications,

LLC, 629 F. App’x. 362, 365 (3d Cir. 2015) (holding that

“approximately six-week period fails to raise an inference of

causation”); Blakney v. City of Phila., 559 F. App’x. 183, 186

(3d Cir. 2014) (“We have found that a temporal proximity of two

days is unusually suggestive of causation, but have held that a

temporal proximity greater than ten days requires supplementary

evidence of retaliatory motive.”); Moore v. Shinseki, 487 F.

App’x. 697, 698 (3d Cir. 2012) (“Two months is not so close to

be unduly suggestive of causation.”).

Based only on the allegations currently found in the

Amended Complaint, and without knowing the specific amount of

time that passed between Plaintiff’s report to Williamson and

her transfer, the Court simply cannot find that she has

sufficiently pled temporal proximity. As that is the only basis

on which she supports her argument for a causal connection, she

therefore has not sufficiently pled her claim. Accordingly,

Defendants’ motion to dismiss will also be granted without

prejudice as to her retaliation claim based on her transfer.

CONCLUSION

For the reasons expressed above, Defendants’ motion to

dismiss (ECF No. 28) will be granted in part and denied in part.

Plaintiff’s retaliation claim based on her negative career

progression report may proceed, and her Title VII claims against

the individual defendants are dismissed with prejudice; all

other claims are dismissed without prejudice. Plaintiff will be

granted leave to file an amended complaint addressing the

deficiencies outlined in this Opinion within thirty days.

An appropriate Order will follow.

Date: April 12, 2021 /s Noel L. Hillman

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