CORRY v. THE NEW JERSEY JUDICIARY

NOT FOR PUBLICATION

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

YVETTE CORRY, ! HONORABLE KAREN M, WILLIAMS

Plaintiff,

| Civil Action

Vv. No, 20-15999 (KMW-SAK)

THE NEW JERSEY JUDICIARY, et ai.,

OPINION

Defendants.

APPEARANCES:

ANDATYE AL-UQDAH, ESQ,

106 NORTH WARWICK ROAD

LAWNSIDE, NJ 08045

NIXON TEAH KANNAH, ESQ.

5015 GERMANTOWN AVENUE

PHILADELPHIA, PA 19144

Counsel for Plaintiff Yvette Corry.

TAMMY MAXEY, ESO.

ERIC INTRIAGO, ESQ.

OFFICE OF THE ATTORNEY GENERAL

25 MARKET STREET, P.O. BOX 112

TRENTON, NJ 08625

Counsel for Defendants the New Jersey Judiciary a/k/a Superior Court of the State of New

Jersey, Gloucester Vicinage, Ann Marie Cohen, Mary Kate Baehr, and Karen Gardner

Dunean,

WILLIAMS, District Judge:

I. INTRODUCTION

Plaintiff Yvette Corry (“Corry”) brings this action against the New Jersey Judiciary, Ann

Marie Cohen, Mary Kate Baehr, and Karen Gardner Duncan (“Collectively Defendants”) alleging

that the Defendants discriminated and retaliated against her based on her age, race, and disability

in violation of N.J. Stat. Ann. §10:5-12, the New Jersey Law Against Discrimination (““NJLAD”)

and 42 U.S.C. § 2000e (“Title VII”) while she worked in the Gloucester Vicinage as a Judicial

Clerk,!

This matter comes before the Court on Defendants’ Motion for Summary Judgment, (ECF

No. 36). Plaintiff opposes this motion, (ECF No. 42). For the reasons that follow, Defendant’s

Motion for Summary Judgment will be GRANTED.”

I. BACKGROUND

A. Factual Background

This matter stems from Plaintiff's allegation that during her almost 15 years of employment

and numerous applications she never advanced from Judicial Clerk II to Judicial Clerk III. Plaintiff

is 53 year old African American woman. (ECF 36, Defendants’ Rule 56.1 Statement of Material

Facts “DSMF” at 2). She started her employment at the Judiciary in 2009 as a “Judiciary Clerk

2” in Cumberland County and transferred to Gloucester County in 2014 and performed in the same

capacity. Ud. at 973-4, 9).

1 Based on the Complaint and the record before this Court, Plaintiff does not allege an Age Discrimination in

Employment Act (‘ADEA”) claim. The Court construes Plaintiffs arguments regarding age as an attempt to support

a hostile work environment claim which cannot be brought under Title VI. To the extent that Plaintiff attempts to

argue an ADEA claim in her Opposition, the Court notes that “[a] plaintiff cannot raise claims for the first time at

the summary judgment stage, if they were not included in their Complaint,” and therefore the Court will not address

it further here. See Conseco Life ins. Co. v. Heady, No, 11-3716, 2013 WL 3285065 at *4 (D.NLI. Jun. 26, 2013).

? Pursuant to Local Civil Rule 78.1(), this motion will be decided on the papers without oral argument.

Plaintiff's direct supervisors at Gloucester County were Defendant Annie Marie Cohen

(“Cohen”) and Defendant Mary Kate Baehr (“Baehr’). Defendant Karen Gardner Duncan

(“Gardner Duncan”) is the Assistant Civil Division Manager for Gloucester County and the direct

supervisor of Cohen and Bachr. (/d, at {[5-6). Plaintiff's claims of race based hostile work

environment and retaliation largely overlap, and the Court will limit the recitation of the facts

solely to those that relate to those claims.

Plaintiff applied for the Judicial Clerk TT position numerous times while working in

Gloucester County and consistently scored low on her application. □□□ at 421). However, Plaintiff

contends that she was denied advancement to Judicial Clerk II because of her race and in

retaliation for complaining about the discriminatory treatment she perceived occurring in the

workplace. Specifically, Plaintiff describes the following conduct as racially based:

* Onher first day of work in Gloucester County, Cohen accused Plaintiff of taking a

co-worker’s coffee cup when in fact, that co-worker gave the cup to Plaintiff.

Plaintiff felt that Cohen accused her of theft and that this accusation was racially

motivated, (Plaintiffs Statement of Material Facts, hereinafter “PSMF” at 9{13-

14).

e Cohen reprimanded Plaintiff in front of others, asking plaintiff are “you dum|[b],

stupid, or just can’t learn.” (PSMF at 915).

e Gardner Duncan’s directive to Plaintiff to remove a tam and expose her hair loss,

which Plaintiff believes “was racially motivated and that there is racism between

individuais of the same race.” (PSMF at §33).

e Plaintiff asserts that she made an internal complaint where she suspected that

Defendant Gardner Duncan was not allowing her to advance “because [she’s]

black, I guess.” (DSMF at 26).

e Plaintiff complained of various incidents of discrimination between September 17,

2015 and October 15, 2015, that generally asserted that Plaintiff believed Cohen’s

attitude was discriminatory, that Cohen was discriminating against another

employee, among other claims seemingly unrelated to race. (DSMF at 438).

e Plaintiff believes that she was continuously denied promotion to Judiciary Clerk TI

because she did not receive “CourtSmart” training, and that she was denied this

training due to her race. (PSMF at 9934, 35); (DSMF at 926); (PRSF at 4]}19-21).

e Plaintiff alleges that a white woman named “Anastasia” received CourtSmart

training, had iess experience and was promoted to the Judiciary Clerk III position,

(PRSF at (20).

¢ Defendants assert that the training was not required to be promoted and note that

Plaintiff had interviewed for the role of Judiciary Clerk II] numerous times without

taking the training but was unsuccessful due to other issues, such as other

candidates scoring higher on their assessments. (DSMF at 410-17, 20-21, 23-26).

However, at no point in her tenure in Gloucester County did any coworker use any racial

epithets against her. (/d. at 45). These complaints were reviewed by the Judiciary’s EEO officer

and were found to be unsubstantiated. (Jd. at §39-43).3 On August 27, 2018, Plaintiff submitted a

lateral transfer request form that stated she felt she had a “hostile work environment,” but she told

3 As Defendants note in their Reply Brief (ECF No. 45 at 2), Plaintiff's responses to DSMF did not provide any

citation to the record, specifically for paragraphs 33, 34, 39-43 as required by the L. Ciy, R. 56, Ha) and as such will

be considered by the Court as admitted.

the EEO officer in a follow up interview that she was not receiving hostility due to a protected

characteristic. Ud. at 944).

I. LEGAL STANDARDS

A. Motion for Summary Judgment

Summary judgment is appropriate “if the movant 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 fact is ‘material’ under Rule 56 ifits existence or nonexistence might impact the outcome

of the suit under the applicable substantive law.” Santini y. Fuentes, 795 F.3d 410, 416 Gd Cir.

2015) (citing Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)); see also MLS. by &

through Hall vy. Susquehanna Twp. Sch, Dist., 969 F.3d 120, 125 Gd Cir, 2020) (“A fact is material

if—taken as true—it would affect the outcome of the case under governing law.”). Moreover, “[a]

dispute over a material fact is ‘genuine’ if ‘a reasonable jury could return a verdict for the

nonmoving partty.’” Santini, 795 F.3d at 416 (quoting Anderson, 477 U.S. at 248).

The moving party bears the burden of identifying portions of the record that establish the

absence of a genuine issue of material fact. /d. (citing Celofex Corp. v. Catrett, 477 U.S. 317, 323

(1986)). The burden then “shifts to the nonmoving party to go beyond the pleadings and ‘come

forward with ‘specific facts showing that there is a genuine issue for trial.’’” Jd. (quoting

Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)). To survive a 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 256-57. “A nonmoving

§

party may not ‘rest upon mere allegations, general denials or... vague statements ....°” Trap

Rock Indus., Inc. v. Local 825, Int’l Union of Operating Eng rs, 982 F.2d 884, 890 Gd Cir. 1992)

(quoting Quiroga v. Hasbro, Inc., 934 F.2d 497, 500 (3d Cir. 1991)). When considering a motion

for summary judgment, the court views the facts and ali reasonable inferences drawn from the

facts in the light most favorable to the nonmoving party. Matsushita Elec. Indus. Co., 475 U.S. at

587,

IV. DISCUSSION

A. Plaintiffs NJLAD Claims

Defendants contend that they cannot be sued in federal court under the New Jersey Law

Against Discrimination (““NJLAD”) because the Judiciary and its employees are immune from

such suits. (ECF No. 36 at 5-7). Plaintiff concedes that the Judiciary is immune, however posits

that the individual Defendants are not entitled to such immunity and are liable for aiding and

abetting under NJLAD. (ECF No. 42 at 5-6). Thus, this Court’s review is limited to the claims

against the individual defendants.

Interestingly, Plaintiff correctly argues that “individual liability under the NJLAD requires

a showing: [‘T']hat the aider and abettor acted in relation to a principal [(here, the employer.)] □□ □

Once [the employer] has been found liable, the issue becomes whether under §12(e), any employee

is liable to aiding and abetting. N.J.S.A. 10:5-12(e), Employees are not liable as aider and abettor

merely because they had some role, or knowledge of involvement. Rather, the degree of

involvement, knowledge and culpability required as a basis for liability is heightened .. . [and

must be] above mere knowledge and or implementation, lest a reverse superior liability could be

created under the guise of aiding and abetting.” (ECF No. 42 at 5) (citing Fallia v. City of Passiac,

146 F.3d 149, 158 (3d Cir. 1998). The Court notes that this is the very provision that precludes

individual liability in the instant case,

Crucially, courts in this district routinely dismiss NJLAD claims against state employees

because “Individual liability does not exist under the NJLAD absent evidence that the individual

was ‘aiding and abetting’ discrimination by the employer [and] [s]uch proof is impossible if the

Court has no jurisdiction over the [state] employer.” Jd. at *30, (quoting Hughes v. State of NJ,

Off. of Pub, Def/Dep’t of Pub. Advoc., No. 11-01442, 2012 WL 761997 at *3 (D.N.J. Mar. 7,

2012); see also Hurley vy. Ail. City Police Dept., 174 F.3d 95, 138 (D.N.J 1999) (Cowen, J.,

coneurring in part); Hicks v. State of NJ. Dept. of Corr., No. 16-0927, 2017 WL 4858122 at *4

(D.NJ. Oct. 27, 2017); Shreve vp. NJ. Motor Vehicle Comm’n, No. 15-7959, 2016 WL 5334661,

at *5 (D.N.J. Sept. 22, 2016); Mitchell v. NJ. Lottery, No. 04-896, 2006 WL 1344092 at *12

(D.N.J. May 15, 2006); Hanani v. State of N.J., No, 03-3111, 2005 WL 1308231, at *16 (D.N_J.

May 31, 2005). Moreover, as discussed in Fallia v. City of Passaic, “it is fundamental to aiding

and abetting liability that the aider and abettor acted in relation to a principal, here, the employer,

the city. Once the city has been found liable, the issue becomes whether ,.. any employee is liable

for aiding and abetting.” 146 F.3d 149, 159 (1998). The Court agrees with the majority and finds

this reasoning persuasive.‘

Here, because all of the allegations against Cohen, Baehr, and Gardner Duncan are alleged

to have occurred as employees of the New Jersey Judiciary and because it is undisputed that the

New Jersey Judiciary cannot be held liable because it is entitled to Eleventh Amendment

4 Plaintiff's reliance on Dennis v. Sparks, 449 U.S. 24, (1980) is misplaced because Dennis held that private

defendants conspiring with a state actor were individually Hable under §1983 despite the Judge’s immunity from suit

because the private individuals were found to be “acting under the color of state law,” as cognizable under §1983,

id, at 27-29. In contrast, the instant case brings a state law claim regarding discrimination and retaliation against the

individual employees, not a $1983 claim. Thus, the Court believes that the facts of this case are sufficiently

distinguishable from Dennis and declines to apply its reasoning to the instant case.

immunity, the individual Defendants cannot be said to have aided or abetted, or “acted in relation”

to the principal. Therefore, the Court grants Defendants Motion for Summary Judgment as to

Plaintiff's NJLAD claims in their entirety.

B. Plaintiff's Title VII Claims®

Now, the Court will turn to Plaintiff's Title VII claims for hostile work environment and

retaliation.

i. Hostile Work Environment

At the summary judgment phase, Plaintiff bears the initial burden of establishing a prima

facie case of a hostile work environment claim. Charles v. Mott’s LLP, No. 17-2879, 2018 WL

2002794 at *3 (D.N.J. Apr. 30, 2018). To establish a prima facie claim of a hostile work

environment claim under Title VII, a plaintiff must show that: (1) she suffered intentional

discrimination because of her membership in a protected class; (2) the discrimination was severe

or pervasive; (3) it detrimentally affected her; (4) it would have detrimentally affected a reasonable

person of the same protected class in her position; and (5) there is a basis for respondeat superior

or employer liability. 7d, Further, to maintain a claim for hostile work environment under Title

VIL a plaintiff must how that the harassing conduct “is sufficiently severe or pervasive to alter the

conditions of ... employment and create an abusive working environment.” Jd. “A court must

analyze the alleged harassment by looking at all the circumstances, including the frequency of the

discriminatory conduct; its severity; whether it is physically threatening or humiliating, or a mere

> Additionally, the Third Circuit has clearly prohibited individual liability under Title VII. See Kanauss v. City of

Burlington, (D.N.J. Sept. 28, 2020) (“Individual liability is not permitted under Title VH. . . the Third Circuit has

‘clearly foreclosed any possibility of individual liability under Title VII [and] [i]n foreclosing individual liability,

the law within the Third Circuit is ‘settled’ and ‘dispositive.’”). Therefore, to the extent that any of Plaintiff's Title

VIi claims are asserted against individuals, those claims are dismissed.

offensive utterance; and whether it unreasonably interferes with an employee’s work performance.

The discriminatory conduct must be extreme [enough] to amount to a change in the terms and

conditions of employment. Unless extremely serious, offhand comments and isolated incidents are

insufficient to sustain a hostile work environment claim.” Chinery v. Am. Airlines, 778 Fed. App’x

142, 145 (3d Cir. 2019) (internal citations and quotations omitted).

Plaintiff baldly asserts, without any reference to any time frame, that she experienced

racially discriminatory conduct that created a hostile work environment from when she was hired

at Cumberland County until she retired from Gloucester County. However, it appears that the

nature of her hostile work environment claim is based on the conduct of the named individual

Defendants and their treatment of her during her employment at Gloucester County and the Court

will limit its analysis to those facts.°

First, the parties agree that at no point during Plaintiff’s tenure did any coworker use any

racial epithets towards her. (DSMF at 945). Indeed, this Court is quite surprised by the barren

record in this case, in light of the length of Plaintiff's employment. ‘To this end, the Court cannot

find, nor do the parties point to, any facts in the record to suggest that Plaintiff experienced

intentional discrimination due to her race. That is to say, Plaintiffs self-serving statements are

equivocal at best. See, e.g. (DSME at 26) and (PRSF at 926). For instance, Plaintiff asserts that on

the first day she felt that Defendant Cohen “accused her of theft because she was black,” (DSMF

at 28), yet a review of the record indicates that this so-called accusation came amidst a

Plaintiff asserts, for the first time in her Opposition, that her supervisor Bob Smith “was holding her back” due to

race and filed a complaint against him. See (ECF No, 42 at 10-11). There are no facts in the record that connect her

experiences under Bob Smith prior to 2014 to the experiences she asserts occurred in Gloucester County, Thus, there

is no “continuing violation” doctrine to connect the asserted violations in Plaintiff's Complaint. See Mandel vy. M&O

Packaging Corp., 706 F.3d 157, 165-66 Gd Cir, 2013) (“To allege a continuing violation, the plaintiff must show

that all acts which constitute the claim are part of the same unlawful employment practice and that at least one act

falls within the applicable limitations period.’’). In addition, the Court again notes that “[aj plaintiff cannot raise

claims for the first time at the summary judgment stage, if they were not included in their Complaint,” and therefore

the Court will not address claims related to Bob Smith farther. See Conseco Life Ins. Co., 2013 WL 3285065 at *4,

misunderstanding over a coffee cup. (DSI'M at 939). Other than Plaintiff's racial identity and that

of Defendant Cohen, the record is devoid of any facts that this comment was in any way related to

race.

Next, Plaintiff asserts that she made an internal complaint where she suspected that

Defendant Gardner Duncan was not allowing her to advance “because [she’s] black, I guess.”

(DSME at §26).’ Again, other than Plaintiff and Defendant Gardner Duncan both being “black”

there is nothing else in the record that sheds light on the racial implications of Defendant Gardner

Duncan’s actions towards Plaintiff. Fatally, other than these two incidents, Plaintiff only asserts

vague claims of mistreatment that do not refer to any protected class or category of discrimination.

See (DSMF at 438).

Similarly, Plaintiff does not provide facts or point to any affirmative evidence that her

working environment evinced discrimination that was severe or pervasive. For instance, the vague,

nonspecific comments by Defendant Cohen, such as calling Plaintiff “dum|b], stupid,” (PSMF at

"15, 17), while unkind, are the type of “mere offensive utterance” that Title VII does not

encompass, Moreover, the lack of temporal information related to these various offhand comments

makes it impossible for the Court to truly ascertain the frequency or pervasiveness of Plaintiff's

perceived discrimination. However, the conduct the Court can glean from the record is not so

frequent to be pervasive nor extreme enough to amount to a change in the terms and conditions of

employment.®

The Court notes that Plaintiff seems to dispute this fact, and instead of agreeing that Defendant Gardner Duncan

was preventing Plaintiff's advancement due to race, she seems to articulate that Defendant Gardner Duncan was

actually preventing Plaintiff's advancement because Plaintiff filed unspecified grievances against her. (PRSF at

Court notes that Plaintiff seems to allege that Defendants’ failure to promote her during her time in Gloucester

County was part of Plaintiff's perceived hostile work environment. However, the failure to promote cannot be

aggregated into a hostile work environment claim. See O'Connor v. City of Newark, 440 F.3d 125, 127 3d Cir,

2006).

10

To demonstrate that discriminatory behavior is sufficiently severe to establish a hostile

work environment, a plaintiff must show that the conduct was severe, threatening or humiliating,

based on racial animus and that such conduct and animus permeated the work environment to such

an extent that it objectively altered the terms and conditions of her employment. See Greer y.

Mondelez Global, Inc., 390 Fed. App’x 170, 173-74 Gd. Cir. 2014) (noting in that case, plaintiff

could only point to one racial incident and that the other alleged statements by colleagues were

unprofessional “mere offensive utterances” and not severe, threatening, or humiliating conduct).

For example, an inference of discrimination can be supported in a number of ways, such as

comparator evidence, evidence of similar racial discrimination of other employees, or statements

and actions, such as: being removed or dismissed from favorable shifts or tables in comparison to

white colleagues, being partnered with only African American customers, being disciplined for

specific conduct that other white coworkers were not punished for, being demoted and subject to

more strict scrutiny demonstrated by specific incidents than other white coworkers, and being

consistently heckled by colleagues with racist comments. See Arku-Nyadia v. Legal Sea Foods,

LLC, No. 18-1089, 2020 WL 6111001 at *1-3, 5, 6, 8 (D.N.J. Oct. 16, 2020). Circumstantial

evidence can also be derived from surrounding conduct, such as colleagues or management making

racist comments to others or on social media, a colleague having a history of complaints of racial

discrimination, and other coworkers corroborating such conduct. /d.

This stands in stark contrast to what Plaintiff has presented in this case. For example, while

Plaintiff points to a handful of coworkers who allegedly received CourtSmart training with less

experience and were promoted to the Judiciary Clerk Ii] position, (PRSF at (22-24) there is

absolutely no corroborating evidence or facts to demonstrate that such events actually occurred—

and only one person, “Anastasia,’—was identified as white, (PRSF at 420). While Plaintiff asserts

that since she started working in Gloucester County the Judiciary Clerk IIE positions have gone to

“younger white employees,” (PRSF at 927), none of these employees have been identified, nor

does Plaintiff give any additional context that is essential for the Court to know to assess her

claims, such as: how many positions were available during this time, was the candidate pool

diverse, were al/ Judiciary Clerk III positions given to white applicants, and what were the selected

applicants qualifications in comparison to Plaintiff? These facts should have been developed

through discovery, instead the Court has found more questions than answers in Plaintiff's

submissions.

To conclude that Plaintiff made a prima facie case for a hostile work environment based

on race would require the Court to embellish the facts of the record. While there may have been

behavior between employees or directed at Plaintiff that was “hostile” in a colloquial sense, that

is not actionable under Title VIL. See Edmond y. Plainfield Bd. Of Educ., 171 F. Supp. 3d 293, 309

(D.N.J. 2016). “Title VII is not a ‘general civility code’... [nJor does Title VII protect ‘offhand

comments and isolated incidents.’” Durand v. FedEx, No. 12-7450, 2015 WL 140215 at *7 (D.N_J.

Jan. 12, 2015).

Here, even after combing the record in the light most favorable to the Plaintiff, the Court

finds only nonspecific and isolated incidents, spanning what appears to be years, where Plaintiff

describes feeling unwelcome or being treated unkindly. Without more---facts tethering the

conduct, statements, treatment, or behavior to Plaintiff's race, or a time frame that suggests that

the conduct directed towards Plaintiff was severe or pervasive—Plaintiff has failed to establish a

prima facie case of hostile work environment and therefore the Court must grant Defendant’s

motion for summary judgment on this claim.

it. Retaliation Claims

12

Nexi, Title VH prohibits an employer from “discriminat[ing] against any of his employees

... because [the employee] has opposed any practice made an unlawful employment practice by

[Title VII], or because {the employee] made a charge, testified, assisted, or participated in any

manner in an investigation, proceeding, or hearing under [Title VIL.]” Hussein v. UPMC Mercy

Hosp., 466 Fed App’x 108, 111 (3d Cir. 2012) (quoting 42 U.S.C. § 2000e-3(a)). Title VIi

retaliation claims are subject to the McDonnell Douglas three-part framework. Charles v. Mott's

LLP, No. 17-2879, 2018 WL 2002794 at *4 (D.N.J. Apr. 30, 2018) (quoting Anderson v. Boeing

Co,, 694 F, App’x 84, 88 (3d Cir, 2017)); see also McDonnell Douglas Corp. v. Green, 411 USS,

792 (1973),

The McDonnell Douglass framework requires a plaintiff to first establish a prima facie

case of retaliation by showing that she (1) engaged in a protected employee activity; (2) suffered

an adverse action (either contemporaneous or after the protected activity); and (3) that there is a

causal connection between the employee’s protected activity and the employer’s adverse action.

Canada vy. Samuel Grossi & Sons, Inc., 49 F4th 340, 346 Gd Cir, 2022), Next, ifthe employee can

establish a prima facie case, the employer then has the burden of producing evidence that

“present[s] a legitimate, non-retaliatory reason for having taken the adverse action.” /d, Finally, if

the employer carries this burden, the employee is then responsible for demonstrating that “the

employer’s proffered explanation was false, and that retaliation was the real reason for the adverse

employment action.” Jd.

The Court notes that Plaintiff establishes the first two elements of a prima facie case of

retaliation. It is not disputed that Plaintiff engaged in a protected employee activity, namely filing

various complaints to the Judiciary’s EEO officer and union grievances. See (DSMF at 438);

(PSMF at 934). It is also undisputed that Plaintiff had applied for the Judiciary Clerk III position

13

“numerous times” while working in Gloucester County but was ultimately unsuccessful. See

(DSME at 21); “Plaintiff applied for the Judicial Clerk II position at least 10 to 15 times.” (PSMF

at 738).

Here, Plaintiff's retaliation claim appears grounded in her failure to be promoted because

she filed complaints and grievances against Defendant Gardner Duncan, and Defendant Garden

Duncan thereafter prevented her from getting access to CourtSmart training for advancement, and

on at least one interview panel that ultimately declined to promote Plaintiff to the Judicial Clerk

III position. See (ECF No. 36 at Ex. Mj; (PSMF at 434, 35); (PRSF at 26); (DSMF at 426). In

the light most favorable to the Plaintiff, her failure to be promoted to a Judicial Clerk II position,

can and will be construed as an adverse action by the employer. See (ECF No. 36 at Ex. T).° These

uncontested facts demonstrate a situation where a reasonable employee would have found the

challenged action, here failure to promote, materially adverse, in a way that well might have

dissuaded a reasonable worker from making or supporting a charge of discrimination. See Edmond

v, Plainfield Bd. Of Educ., 171 F. Supp. 3d 293, 311 (D.N.J. 2016),

However, Plaintiff fails to show a causal connection between the employee’s protected

activity and her failure to become a Judicial Clerk IIL. 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. When relying on temporal proximity, the plaintiff will also have

to demonstrate that the decision maker accused of taking the adverse action had knowledge of the

° The Court notes that Plaintiff later asserts, in the same email thread, that she did not believe that Defendant

Gardner Puncan was discriminating against her based on race. However, given the overall inconsistency with how

Plaintiff has understood and presented her experience in the context of the record evidence, and given the fact that

the Court is to construe all inferences in favor of the nonmovant at this stage, the Court will construe Plaintiff's

specific grievance here as one of discrimination.

14

protected activity,” Edmond y, Plainfield Bd. Of Educ., 171 F. Supp. 3d 293, 312 (D.N.J. 2016)

(internal citations and quotations omitted).

Here, in the singular instance where there is documented evidence of Plaintiff applying for

the Judicial Clerk IEE position, only one month had elapsed between Plaintiff's complaint to the

EEO Officer and being rejected for the Judicial Clerk III position.!° See (ECF No, 36 at Ex. T);

(id. at Ex. M). The Court concludes that the temporal proximity between the email to EEO officer

and the November 2015 interview is suggestive of a causal connection. However, Plaintiff

provides no facts at all to suggest that Defendant Gardner Duncan knew of Plaintiff's complaints,

Although Plaintiff filed grievances with the union against Gardner Duncan, there is no evidence

in the record that Gardner Duncan was aware of these grievances at the time she interviewed

Plaintiff. (PSF at $34, 35), The lack of any record evidence suggesting that Gardner Duncan knew

of any complaints against her and subsequently pursued the adverse action of declining Plaintiff's

promotion is fatal to her claim. In fact, the record suggests that Defendant Gardner Duncan did

not know of any of Plaintiffs complaints either to EEO or the union. In particular, Gardner

Duncan’s undisputed testimony is that the EEO complaints are kept confidential. See (ECF No. 36

at Ex, D, 16:18-18:1). These facts are simply too tenuous and cannot support a finding of a causal

connection between the employee’s protected activity and the employer’s adverse action.

Even if Plaintiff were to establish a prima facie case, the Court finds that Defendants

articulate a legitimate, non-retaliatory reason for its decision not to advance Plaintiff to a Judicial

Clerk III. Simply stated, Plaintiff was not promoted because she was not the best applicant. Despite

Plaintiffs assertion that she interviewed 10-15 times for the Judicial Clerk IIT position, the

There is no evidence to suggest that any other individual defendants aside from Defendant Gardner Duncan were

involved in the interviewing process for Judicial Clerk HII, and therefore any claims related to the other individual

Defendants with regards to Plaintiff's retaliation claim are dismissed,

qe

undisputed record reveals only two instances that Plaintiff was interviewed, (PSMF at 938); (ECF

No. 36 at Ex. M); (id. at Ex. N). In both instances, Plaintiffs scores were not among the highest

out of the candidates interviewed. (DSMF at 421, 23, 24). Plaintiff does not contest this fact.!!

Further, the record shows that Plaintiff was permitted to repeatedly apply for.the Judicial

Clerk IH position despite not attending the CourtSmart training and she was provided interview

skill development. (DSMF at 920, 25). Tellingly, the Judicial Clerk III position description is

clear on its face that CourtSmart training is not required. (DSMF at 913). Here again, because the

record is devoid of any facts that casts doubt on the legitimate non-retaliatory reason articulated

by the Defendants to not advance Plaintiff to the Judicial Clerk III position, Plaintiff has again

failed to mect her burden. In other words, Plaintiff has not demonstrated that Defendants’ proffered

explanation why she was not promoted to Judicial Clerk III was false, and that retaliation was the

real reason for the adverse employment action. Thus, Plaintiff’s retaliation claim cannot survive

this motion for summary judgment.

V. CONCLUSION

For the reasons set forth above, Defendants’ Motion for Summary Judgment (ECF No. 36)

will be GRANTED. An order consistent with this Opinion will be entered.

May 31, 2023 Ks Wyse □

"KAREN M. WILLIAMS, U.S.D.J.

The Court notes that Plaintiff does not dispute her scores but does dispute that the internal hires she was aware of

had less experience. (PRSF at □□ 23, 24). Because neither party has provided any evidence relating to what

components go into the scoring, the Court cannot evaluate whether this assertion of less experience has any weight

in relation to the scores in Exhibit M, nor can the Court confirm if any of the names Plaintiff provides in the PRSF

were ranked against Plaintiff in this particular application cycle. Nevertheless, Plaintiff does not assert that her score

is incorrect or that her scores were not, in fact, lower than other applicants,