# OKPARAEKE v. DUKE-JACKSON

> District Court, D. New Jersey · July 10, 2023

URL: https://www.frixlaw.com/law-library/cases/10277102

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** July 10, 2023
- **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/10277102

## How later opinions describe it (automated extraction)

- acknowledging that claims brought under the FMLA (which mirrors the requirements of the NJFLA) may be brought under the retaliation theory, which is also known as the discrimination theory.

## Opinion text

Not for Publication

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

EVELYN OKPARAEKE,

Plaintiff,
Civil Action No. 20-16149
v.
OPINION
NEWARK BOARD OF EDUCATION, and
KATHY DUKE-JACKSON, Assistant
Superintendent, Newark Board of
Education, in her individual and official
capacities,

Defendants.

John Michael Vazquez, U.S.D.J.
In this matter, Plaintiff Evelyn Okparaeke contends that she was subjected to
discrimination and retaliation because of her gender, sex, and/or pregnancy as well as a hostile
work environment. Plaintiff asserts claims against her former employer, Defendant Newark Board
of Education (“Newark BOE”) and the Assistant Superintendent, Defendant Kathy Duke-Jackson
(collectively, “Defendants”). Presently before the Court is Defendants’ motion for summary
judgment, D.E. 30. The Court reviewed all submissions made in support and in opposition to the
motion and considered the motion without oral argument pursuant to Fed. R. Civ. P. 78(b) and L.
Civ. R. 78.1(b).1 For the reasons stated below, Defendants’ motion for summary judgment is

1 The Court refers to Defendants’ brief in support of its motion for summary judgment as “Def.
Br.” (D.E. 30-1); Plaintiff’s brief in opposition to the motion for summary judgment as “Plf. Opp.”
(D.E. 32); and Defendants’ reply brief as “Def. Reply” (D.E. 34).
GRANTED in part and DENIED in part.
I. FACTUAL2 AND PROCEDURAL BACKGROUND
A. Factual Background
In August 2012, Plaintiff was hired by the Newark Board of Education as the Vice Principal
at the Quitman Street Community School (“Quitman”). DSUMF ¶ 1; PSUMF ¶ 1. In this role,

Plaintiff’s immediate supervisor was Erkine Glover, the Principal at Quitman. Id. In 2016, when
Glover took the position of Assistant Superintendent, Plaintiff replaced Glover as the Principal at
Quitman. DSUMF ¶ 4; PSUMF ¶ 4. As Principal, Plaintiff was responsible for “running the entire
school operation, including responsibility for being the instructional leader, for providing coaching
and instructional support to the administrators and staff, for budget, and for relations with parents
and the community.” DSUMF ¶ 7; PSUMF ¶ 7. During the 2016-17 and 2017-18 school years,
Plaintiff continued to be supervised by Glover, and during the 2018-19 school year, Plaintiff was
supervised by Duke-Jackson, who had replaced Glover as the Assistant Superintendent. DSUMF
¶¶ 5, 24; PSUMF ¶¶ 5, 24.

2 The background facts are drawn from Defendants’ Statement of Undisputed Material Facts
(“DSUMF”), D.E. 27-1; Plaintiff’s Responsive Statement of Material Facts and Supplemental
Statement of Disputed Material Facts (“PSUMF”), D.E. 28-1; Defendants’ Certification of
Counsel (“Adams Cert.”) and supporting exhibits, D.E. 30-2 (“Def. Ex.__”); Plaintiff’s
Certification of Counsel (“Vasquez Cert.”) and supporting exhibits, D.E. 33-1 (“Plf. Ex.__”), and
Defendants’ Supplemental Certification of Counsel (“Adams Supp. Cert.”) and supporting
exhibits, D.E. 34-1 (“Def. Rep. Ex.__”). When citing to exhibits, the pages numbers cited
correspond with those in the ECF header.

Both parties’ briefs often lack citations to the factual record and include purported facts that do
not appear in the DSUMF or the PSUMF. Facts that appear only in the briefs and without proper
citations to the record will be disregarded by the Court. See Jake Ball Trust v. Durst, No. 12-5225,
2013 WL 4008802, at *1 n.1 (D.N.J. Aug. 5, 2013) (“Facts stated by the parties in their briefs or
in their Statements of Material Facts Not in Dispute which were not supported by record citations
were disregarded by the Court in accordance with L. Civ. R. 56.1(a).”).
Duke-Jackson prepared her first written assessment3 of Plaintiff’s performance in January
2019 (“January Review”). DSUMF ¶ 57; PSUMF ¶ 57. Duke-Jackson then met with Plaintiff on
February 14, 2019, to discuss the review, for which Plaintiff received an overall rating of
“effective.” DSUMF ¶ 68; PSUMF ¶ 68; Def. Ex. 5. After discussing the review, Duke-Jackson
advised Plaintiff that she had heard rumors that Plaintiff was pregnant and asked Plaintiff whether

this was true. DSUMF ¶ 68; PSUMF ¶ 68. Plaintiff confirmed that she was pregnant and informed
Duke-Jackson that she had just entered her second trimester and had not yet told many people
about the pregnancy. Id.; DSUMF ¶ 69; PSUMF ¶ 69. Duke-Jackson agreed to keep this
information confidential. DSUMF ¶ 68; PSUMF ¶ 68. Duke-Jackson then told Plaintiff that she
had also heard a rumor that Plaintiff was not planning to return to work after taking leave. DSUMF
¶ 70; PSUMF ¶ 70. Plaintiff responded that she did intend to return. Id. They then discussed who
might cover for Plaintiff while she was on leave. DSUMF ¶ 70; PSUMF ¶ 70. Thereafter, Duke-
Jackson advised Plaintiff of another rumor that she had heard: that Plaintiff was telling colleagues
that Duke-Jackson was “out to get her.” DSUMF ¶ 73; PSUMF ¶ 68. Plaintiff denied telling

colleagues this. Id.
The following day, Plaintiff reached out to her union representative to schedule a call to
discuss her interaction with Duke-Jackson. Plf. Ex. 2. Plaintiff also followed up with an email
complaint to her union representative on February 25, 2019, summarizing the interaction. Id. The

3 Duke-Jackson prepared three written assessments of Plaintiff during the 2018-19 school year.
The same rubric was used for each. See Def. Exs. 5, 7, 8. The rubric rates four competency areas:
(1) management and coaching of instructional staff; (2) curriculum, assessment, and instruction;
(3) student and family support; and (4) transformational leadership. Within these competency
areas, the observer evaluates anywhere from 4-7 sub-categories of performance, providing a rating
of “ineffective,” “partially effective,” “effective,” or “highly effective.” As a result, there are 23
individual ratings as well as an “overall” rating.
following month, Duke-Jackson prepared her second written assessment of Plaintiff’s
performance—the Mid-Year Review—which rated Plaintiff’s performance as “ineffective”
overall. DSUMF ¶¶ 77-78; Def. Ex. 7. Duke-Jackson presented the Mid-Year Review to Plaintiff
on April 1, 2019. DSUMF ¶ 78. On April 12, 2019, Duke-Jackson prepared and presented Plaintiff
with her Annual Review, which rated Plaintiff’s performance as “partially effective” overall.

DSUMF ¶ 87; Def. Ex. 8. Likewise, Superintendent Shakira Harrington observed Plaintiff on
April 11, 2019, and Duke-Jackson presented the written assessment from this observation to
Plaintiff on April 12, 2019, which also rated Plaintiff as “partially effective” overall (“Harrington
Review”).4 DSUMF ¶ 97; Def. Ex. 9.
Plaintiff submitted numerous formal rebuttals to the “Educator Effectiveness Team”
regarding the criticism that she received in her reviews. See Def. Ex. 10. The first was submitted
on April 15, 2019, and it challenged the Mid-Year Review conference, arguing that based on the
comments received in the Mid-Year Review, an overall rating of “effective” was warranted. See
Def. Ex. 10 at 168-175. The next was submitted on May 3, 2019, and it challenged the April 5,

2019 observation and April 11, 2019 post-conference, again asserting that an overall rating of
“effective” was warranted for the observation that had been held on April 5, 2019. Id. at 161-167.5
On May 6, 2019, Plaintiff submitted multiple rebuttals. Def. Ex. 10 at 143-160. The first contested
the April 11, 2019 observation held by Harrington and the April 12, 2019 post-conference held by

4 The parties agree that Harrington observed Plaintiff’s performance on April 11, 2019, and that
Duke-Jackson presented a written assessment of this evaluation to Plaintiff on April 12, 2019;
however, they dispute whether Harrington was an independent evaluator and whether it was
Harington who wrote the assessment, rather than Duke-Jackson. DSUMF ¶ 97; PSUMF ¶ 98.

5 The record does not include a written assessment from the April 5, 2019 observation.
Duke-Jackson, arguing that a rating of “effective” was warranted.6 See id. at 158-160. The second
contested the April 12, 2019 Annual Review, again arguing that the findings warranted an overall
rating of “effective.” Id. at 143-157.
Around May 2, 2019, Plaintiff received approval for her request to take FMLA/maternity
leave from June 27, 2019 through October 25, 2019. DSUMF ¶ 110; PSUMF ¶ 111; Def. Ex. 11.

Less than two weeks later, the Newark BOE informed Plaintiff that her contract as principal would
not be renewed for the 2019-20 school year and that her employment would be terminated as of
June 20, 2019. DSUMF ¶ 111; PSUMF ¶ 112. A few days later, Plaintiff requested that the
Newark BOE provide her with a “Statement of Reasons for Non-Renewal.” Plf. Opp. at 7; see Plf.
Ex. 3, 4. The Newark BOE responded with a letter dated May 21, 2019, which stated that the basis
for non-renewal was “economy and/or organization restructuring.” Plf. Ex. 4. Plaintiff then
requested a Donaldson Hearing, which was scheduled for June 26, 2019, and Plaintiff received an
updated letter, dated June 7, 2019, which also provided that the basis for Plaintiff’s non-renewal
was “economy and/or organization restructuring.” Plf. Ex. 3. Notwithstanding these letters,

Defendants maintain that “Plaintiff’s contract was not renewed based on the performance
evaluations which reflected that Plaintiff was not doing her job effectively.” DSUMF ¶ 112.
B. Procedural Background
Plaintiff filed suit on November 13, 2020, asserting claims for (1) discrimination based on
gender, sex, and/or pregnancy under Title VII and the New Jersey Law Against Discrimination
(“NJLAD”) (Count One and Count Four, respectively); (2) retaliation under Title VII (Count

6 The Harrington Review appears to have been a partial assessment, as it only provides feedback
on one of the twenty-three competency categories along with an overall rating of “partially
effective,” Def. Ex. 9, and Plaintiff’s rebuttal is likewise confined to these areas. Def. Ex. 10 at
158-60.
Two); (3) hostile work environment under Title VII (Count Three); and (4) discrimination based
on pregnancy under the New Jersey Family Leave Act (“NJFLA”) (Count Five).7 Defendants
subsequently sought leave to file a motion for summary judgment, D.E. 27, which the Court
granted, D.E. 29.
II. SUMMARY JUDGMENT STANDARD

A moving party is entitled to summary judgment where “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 when it “might affect the outcome of the suit under the
governing law” and is genuine “if the evidence is such that a reasonable jury could return a verdict
for the non-moving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). Disputes
over irrelevant or unnecessary facts will not preclude granting a motion for summary judgment.
Id. “In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the non-moving party’s
evidence ‘is to be believed and all justifiable inferences are to be drawn in his favor.’” Marino v.

Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (quoting Anderson, 477 U.S. at 255)). A
court’s role in deciding a motion for summary judgment is not to evaluate the evidence and decide
the truth of the matter but rather “to determine whether there is a genuine issue for trial.” Anderson,
477 U.S. at 249.

7 A plaintiff may seek recovery under the NJFLA pursuant to either the entitlement theory or the
retaliation theory. Wolpert v. Abbott Lab'ys, 817 F. Supp. 2d 424, 437-38 (D.N.J. 2011). Based
on the facts alleged, the Court construes Count Five as a retaliation claim. See Compl. ¶ 70
(claiming retaliation “based solely on her sex/gender and/or being pregnant and requesting leave
under FMLA”); see also Parker v. Hanhemann Univ. Hosp., 234 F. Supp. 2d 478, 487 (D.N.J.
2002) (acknowledging that claims brought under the FMLA (which mirrors the requirements of
the NJFLA) may be brought under the retaliation theory, which is also known as the discrimination
theory.).
A party moving for summary judgment has the initial burden of showing the basis for its
motion and must demonstrate that there is an absence of a genuine issue of material fact. Celotex
Corp. v. Catrett, 477 U.S. 317, 323 (1986). After the moving party adequately supports its motion,
the burden shifts to the nonmoving party to “go beyond the pleadings and by her own affidavits,
or by the depositions, answers to interrogatories, and admissions on file, designate specific facts

showing that there is a genuine issue for trial.” Id. at 324 (internal quotation marks omitted). To
withstand a properly supported motion for summary judgment, the nonmoving party must identify
specific facts and affirmative evidence that contradict the moving party. Anderson, 477 U.S. at
250. “[I]f the non-movant’s evidence is merely ‘colorable’ or is ‘not significantly probative,’ the
court may grant summary judgment.” Messa v. Omaha Prop. & Cas. Ins. Co., 122 F. Supp. 2d
523, 528 (D.N.J. 2000) (quoting Anderson, 477 U.S. at 249-50)).
Ultimately, there is “no genuine issue as to any material fact” if a party “fails to make a
showing sufficient to establish the existence of an element essential to that party’s case.” Celotex
Corp., 477 U.S. at 322. “If reasonable minds could differ as to the import of the evidence,”

however, summary judgment is not appropriate. See Anderson, 477 U.S. at 250-51.
III. ANALYSIS8
A. Discrimination Claims (Counts One and Four)
Plaintiff asserts gender, sex, and/or pregnancy discrimination claims under Title VII and
the NJLAD. Title VII of the 1964 Civil Rights Act prohibits discrimination on the basis of an
“individual’s race, color, religion, sex, or national origin.” 42 U.S.C. § 2000e-2. The Pregnancy

Discrimination Act, a 1978 amendment to Title VII, provides in relevant part as follows:
The terms ‘because of sex’ or ‘on the basis of sex’ include, but are
not limited to, because of or on the basis of pregnancy, childbirth,
or related medical conditions; and women affected by pregnancy,
childbirth, or related medical conditions shall be treated the same
for all employment-related purposes . . . as other persons not so
affected but similar in their ability or inability to work[.]
42. U.S.C. § 2000e(k). Likewise, the NJLAD makes it illegal
[f]or an employer, because of the race, creed, color, national origin,
ancestry, age . . . , pregnancy or breastfeeding, sex, . . . , disability .
. . of any individual . . . to refuse to hire or employ or to bar or to

8 Defendants move, without opposition, to dismiss “[t]he claims asserted against Duke-Jackson
individually under Title VII.” Def. Br. at 4 n.1. Because “Congress did not intend to hold
individual employees liable under Title VII,” Counts One, Two, and Three are dismissed insofar
as they assert claims against Defendant Duke-Jackson—in her individual or official capacity— for
violations of Title VII. Sheridan v. E.I. DuPont de Nemours & Co., 100 F.3d 1061, 1078 (3d Cir.
1996); see also Gretzula v. Camden Cnty. Tech. Sch. Bd. of Educ., 965 F. Supp. 2d 478, 486 (D.N.J.
2013) (“Title VII provides for liability against employers, not supervisors,” therefore, “[n]aming
a supervisor as a defendant in his official capacity is redundant especially when, as in this case,
the employer is named as a [d]efendant.”).

Individual liability also does not exist under the NJFLA, and only exists under the NJLAD under
an aiding and abetting theory of liability. See Fisher v. Schott, No. 13-5549, 2014 WL 6474216,
at *6 (D.N.J. Nov. 19, 2014) (finding that “individual liability does not exist as a matter of law
under the NJFLA” in light of “the more limited definition of ‘employer’ under the NJFLA”);
Varughese v. Robert Wood Johnson Med. Sch., No. 16-2828, 2017 WL 4270523, at *12 (D.N.J.
Sept. 26, 2017) (quoting Cicchetti v. Morris Cnty. Sheriff's Office, 194 N.J. 563, 593 (2008))
(“[I]ndividual liability under the NJLAD can only arise through the ‘aiding and abetting’
mechanism.”). But Defendants have not moved in this regard, and the Court declines to do so sua
sponte.
discharge or require to retire . . . from employment such individual
or to discriminate against such individual in compensation or in
terms, conditions or privileges of employment[.]

N.J. Stat. Ann. § 10:5-12(a).
The burdens of proof and production for discrimination claims arising under Title VII and
the NJLAD are the same. Martinez v. Nat’l Broad. Co., 877 F. Supp. 219, 227 (D.N.J. 1994).
Where a plaintiff does not present direct evidence of discrimination, courts apply the three-step,
burden-shifting standard set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).
“Under this burden-shifting framework, a plaintiff must first establish a prima facie case of
discrimination.” Palatnik v. Home Depot, Inc., No. 04-1229, 2006 WL 680981, at *8 (D.N.J. Mar.
10, 2006) (internal citations omitted). If a plaintiff puts forth a prima facie case, there is a
rebuttable presumption of unlawful discrimination. Id. To rebut this presumption at the second
step, a defendant must produce evidence of a legitimate non-discriminatory reason for its decision.
Id. At the third step, a plaintiff must prove, by a preponderance of the evidence, that the employer’s
articulated reason was not the real reason for the employment action but rather was a mere pretext
for discrimination. Id. These standards are discussed in more detail below.
1. First Step - Prima Facie Case
To establish a prima facie discrimination claim, a plaintiff must demonstrate that she (1) is
a member of a protected class; (2) was qualified for and performing the essential functions of the
job; (3) suffered termination or an adverse employment action; and (4) the adverse employment
action gives rise to an inference of unlawful discrimination. Tourtellotte v. Eli Lilly & Co., 636 F.
App’x 831, 842 (3d Cir. 2016) (internal citations omitted). The burden of establishing a prima
facie case is “not onerous.” Anderson v. Wachovia Mortg. Corp., 621 F.3d 261, 270-71 (3d Cir.
2010) (quoting Tex. Dept. of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 (1981)). Here, Plaintiff
argues, and Defendants concede, that Plaintiff establishes a prima facie claim for gender, sex,
and/or pregnancy discrimination under Title VII and the NJLAD. Plf. Opp. at 6-10; see also Def.
Br. at 1, 4-29 (arguing only that Plaintiff cannot meet her pretext burden); Def. Reply at 1-8 (same).
Thus, the burden of production shifts to Defendants to articulate some legitimate,
nondiscriminatory reason for the adverse employment action. See McDonnell Douglas, 411 U.S.

at 802.
2. Second Step - Non-Discriminatory Reason for the Adverse Employment Action
An employer can satisfy its burden of production at the second step of the McDonnell
Douglas framework “by introducing evidence which, if taken as true, would permit the conclusion
that there was a non-discriminatory reason for the unfavorable employment decision.” Martinez,
877 F. Supp. at 228. This burden is “relatively light.’” Fuentes v. Perskie, 32 F.3d 759, 763 (3d
Cir. 1994). Moreover, an employer “need not prove that its tendered reason actually motivated its
behavior.” Martinez, 877 F. Supp. at 228 (quoting McDonnell Douglas, 411 U.S. at 802); see also
DiMare v. Metlife Ins. Co., No. 07-4268, 2008 WL 5109556, at *2 (D.N.J. Dec. 2, 2008)

(explaining that an employer merely needs to articulate, not prove, a non-discriminatory motive at
the second step).
Defendants maintains that Plaintiff’s contract was not renewed because Duke-Jackson
determined that “Plaintiff’s job performance was less than effective.” Def. Br. at 5. In support,
Defendants point to the drop in Plaintiff’s overall rating on performance evaluations after she
became Principal at Quitman. Def. Br. at 14-15. Defendants note that while Plaintiff received
overall ratings of “highly effective” from Glover in her role as Vice Principal, once Plaintiff was
promoted to Principal, Glover rated her as “effective” during the 2016-17 and 2017-18 school
years.9 Id. Thereafter, Plaintiff received overall ratings of “effective,” “partially effective,” and
“ineffective” from Duke-Jackson during the 2018-19 school year. Id. at 15-16. Defendants also
point to specific performance-related issues that are identified in Duke-Jackson’s evaluations of
Plaintiff, both prior to and after learning that Plaintiff was pregnant, including Plaintiff’s practice
of delegating responsibilities, concerns regarding her leadership, and the passive role that Plaintiff

took when it came to addressing parent complaints. See, e.g., Def. Br. at 15-16 (citing Ex. 5).
With this evidence, Defendants meet their minimal burden of production.
In Defendants’ reply, Defendants rely on another non-discriminatory reason for
termination: economy and/or organization restructuring, which was the reason articulated in
Defendants’ May 21, 2019, and June 7, 2019, letters to Plaintiff. Def. Reply at 2-4 (citing Plf.
Ex. 3); Plf. Ex. 4. “[C]ourts ordinarily decline to consider arguments raised for the first time in a
reply brief, on the grounds that consideration of the same would prejudice the non-moving party.”
In re Blackrock Mt. Funds Advisory Fee Litig., 327 F. Supp. 3d 690, 736 n.42 (D.N.J. 2018). Here,
however, this argument was raised by Plaintiff (albeit, in the context of arguing that the reasons

proffered by Defendants are inconsistent and thus pretextual), therefore, the Court’s ordinary
concern of prejudice does not apply.10 See Plf. Opp. at 8-10. Defendants then embraced Plaintiff’s

9 According to Defendants, Glover intended to provide Plaintiff with an overall rating of “partially
effective” on her 2016-17 Mid-Year Review. DSUMF ¶ 14. Plaintiff maintains that while Glover
indicated that she might receive a “partially effective rating” on that review, once Plaintiff
provided Glover with additional documentation, her performance was “effective” (in accordance
with the protocols permitted by the Newark BOE) as reflected in the review. PSUMF ¶ 14.

10 Plaintiff also relies on this proffered reason to argue that summary judgment should be denied
because Defendants’ performance-based reason for termination differs from the
economy/restructuring-based reason, and thus creates a dispute of material fact as to the basis for
non-renewal. Plf. Opp. at 5. But Defendants may proffer multiple nondiscriminatory reasons for
termination. And where Defendants proffer sufficient evidence to satisfy their burden as to each
nondiscriminatory reason for termination, the burden will shift back to Plaintiff to demonstrate
that each proffered reason is pretextual. See Kautz v. Met-Pro Corp., 412 F.3d 463, 476 (3d Cir.
argument in their reply, asserting that Plaintiff fails to satisfy her burden of demonstrating that this
basis for termination was pretextual. Def. Reply at 2-4 (citing Plf. Ex. 3). This additional evidence
also supports Defendants burden of production.
3. Third Step - Proffered Reason is Pretextual
At the third step, a plaintiff “may defeat summary judgment by pointing ‘to some evidence,

direct or circumstantial, from which a factfinder could reasonably either (1) disbelieve the
employer’s articulated legitimate reasons; or (2) believe that an invidious discriminatory reason
was more likely than not a motivating or determinative cause of the employer’s action.’” Diaz,
2013 WL 85262, at *6 (quoting Fuentes, 32 F.3d at 764). “To discredit the employer’s proffered
reason, [], the plaintiff cannot simply show that the employer’s decision was wrong or mistaken,
since the factual dispute at issue is whether discriminatory animus motivated the employer, not
whether the employer is wise, shrewd, prudent, or competent.” Fuentes, 32 F.3d at 765 (citations
omitted). Instead, a plaintiff must proffer sufficient evidence to “demonstrate such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer's proffered

legitimate reasons for its action that a reasonable factfinder could rationally find [each reason]
unworthy of credence, and hence infer that the employer did not act for [the asserted] non-
discriminatory reasons.” Id. (emphasis in original) (internal quotation marks and citations
omitted). If the plaintiff does so, “she need not present additional evidence of discrimination
beyond her prima facie case to survive summary judgment.” Burton v. Teleflex Inc., 707 F.3d 417,
427 (3d Cir. 2013) (citations omitted). Rather, “the factfinder may infer from the combination of

2005) (“[T]he plaintiff must demonstrate that each of the employers proffered nondiscriminatory
reasons are pretextual,” which “can be done by showing that some of the employers’ proffered
reasons are a pretext in such a way that the employer’s credibility is seriously undermined,
therefore throwing all the proffered reasons into doubt.” (internal citations omitted)).
the prima facie case, and its own rejection of the employer’s proffered reason, that the employer
engaged in the adverse employment action for an invidious reason.” Id. (citing Fuentes, 32 F.3d
at 764).
According to Plaintiff, the inconsistencies between Defendants’ proffered reasons for
termination—initially, economy and/or restructuring reasons and later performance-based

reasons—are such that a reasonable factfinder could rationally find them unworthy of credence
and infer that they were a pretext. Plf. Opp. at 2, 9. Plaintiff also attacks each proffered reason on
its own, arguing that both the economy/restructuring reason and the performance-based reason are
undermined by the record. Plf. Opp. at 9-13. The Court first addresses the latter arguments, before
considering the inconsistencies between the proffered reasons.
As to the economy/restructuring reason, Plaintiff contends that because the Newark BOE
hired a male replacement to fill Plaintiff’s precise role, and paid the replacement a higher salary
than Plaintiff, a reasonable factfinder could determine that this proffered reason was pretextual.
Plf. Opp. at 10. Plaintiff offers no support for the assertion that her replacement was paid a higher

salary. See L. Civ. R. 56.1(a). Nevertheless, a reasonable factfinder could find that claiming that
Plaintiff was terminated for economic and/or restructuring reasons, and subsequently hiring a male
replacement to fill the same role that Plaintiff held—without any indication of restructuring roles
within the school and/or the economic benefits of doing so—is inconsistent, and thus creates a
genuine dispute of material fact as to whether the proffered reason was pretextual.11 And this

11 Cf. Waldron v. SL Indus., Inc., 56 F.3d 491, 497 (3d Cir. 1995) (finding that a jury could
reasonably question whether the “reorganization” that ostensibly precipitated the plaintiff’s
termination was in fact a way of removing the plaintiff for a younger replacement where the
evidence demonstrated that the defendant split the plaintiff’s job into two roles, fired the plaintiff,
offered one-half of his former job to the younger employee while the other half remained
unadvertised, and then recombined the jobs and placed the younger employee in the recombined
position).
purported basis for termination is further undermined by Defendants’ inconsistent positions.12
Next, the Court turns to Plaintiff’s challenges to Defendants’ performance-based reason
for termination.13 In arguing that a reasonable factfinder could find that Defendants’ performance
reviews were pretextual, Plaintiff points to the letters of support from parents, students, and
colleagues, which describe Plaintiff as “an overall excellent administrator,” “responsive to

parents,” “caring and understanding,” and “always willing to go the extra mile for her students and
school.” Plf. Opp. at 12 (citing Plf. Ex. 1). The Third Circuit has held that an employee’s assertion
of his or her own good performance is insufficient to defeat a motion for summary judgment where
the employer has produced performance reviews or documentary evidence of insubordination or
poor performance. Sempier v. Johnson & Higgins, 45 F.3d 724, 731 (3d Cir. 1995) (citation
omitted). The same is true for letters of support from the community. See Adams v. Borough of
Ridley Park, No. 98-5530, 2000 WL 1781955, at *7 (E.D. Pa. Nov. 8, 2000) (explaining that while
the community’s view on the plaintiff “might arguably shed light on whether the [defendant] was
wrong or mistaken in not reappointing [the plaintiff], it does not shed light on the question of the

12 Defendants first embrace this basis for termination to argue that Plaintiff fails to establish that
this basis for termination is pretextual. Def. Reply at 2-3. But Defendants then disclaim this basis
for termination one page later, arguing that the letters that Plaintiff received inadvertently stated
that the basis for termination was “economy and/or organization restructuring,” when the actual
basis for termination was due to performance. Def. Reply at 4 n.4.

13 Defendants argue at length that Plaintiff cannot rely on her past positive performance reviews
from Glover and Duke-Jackson to show that the more recent performance reviews were pretextual.
See Def. Opp. at 10-11 (citing Kautz, 412 F.3d at 474; Ezold, 938 F.2d at 528; Healy v. New York
Life Ins. Co., 860 F.2d 1209, 1211 (3d Cir. 1988). The Court agrees that “prior good evaluations
alone cannot establish that later unsatisfactory evaluations are pretextual” because “[t]o hold
otherwise would be to hold that things never change[.]” Billet v. CIGNA Corp., 940 F.2d 812,
826-27 (3d Cir. 1991) (citations omitted), overruled in part on other grounds, St. Mary’s Honor
Ctr. v. Hicks, 509 U.S. 502, 510-11 (1993). But here, Plaintiff does not rely on such reviews to
argue pretext.
[defendant’s] motivation.”). This is because “[i]t is the defendants’ view of [the plaintiff’s]
performance which is at issue in this case,” thus, the plaintiff must introduce evidence that
contradicts or undermines the defendant’s articulated performance concerns. Id. (emphasis in
original) (citing Fuentes, 32 F.3d at 765). As such, the Court does not consider the letters of
support.

Plaintiff also contends that Duke-Jackson’s performance reviews are “false or contrived.”
Plf. Opp. at 10-13. To recap, Duke-Jackson completed three written assessments for Plaintiff
during the 2018-19 school year.14 Def. Exs. 5, 7, 8. The first was the January Review, which
reflected that Plaintiff’s performance was “effective” in twenty out of the twenty-three
categories,15 and “partially effective” in three categories, resulting in an overall rating of
“effective.” Def. Ex. 5. The next was the Mid-Year Review, which was completed in March 2019
(one month after Plaintiff’s interaction with Duke-Jackson) and reflected that Plaintiff’s
performance was not “effective” in any of the twenty-three categories—instead, Plaintiff was rated
“partially effective” in thirteen out of the twenty-three categories and “ineffective” in the

remaining ten categories (each of which had been rated “effective” on the prior review), resulting
in an overall rating of “ineffective.”16 Def. Ex. 7. The final review—the Annual Review—came
less than two weeks after Plaintiff received her Mid-Year Review. Def. Ex. 8. This review rated

14 The fourth written assessment that Plaintiff received was a partial assessment based on
Harrington’s April 11, 2019 observation of Plaintiff, which Duke-Jackson presented to Plaintiff
on April 12, 2019. DSUMF ¶ 97; PSUMF ¶¶ 97-98; Def. Ex. 9; see also supra n.6. The parties
dispute whether this assessment was completed by Harrington independently or in conjunction
with Duke-Jackson. DSUMF ¶ 97; PSUMF ¶¶ 97-98.

15 See supra n.3 (explaining the categories that are rated on each written assessment).

16 Defendants do not explain why thirteen “partially effective” ratings and ten “ineffective” ratings
resulted in an overall rating of “ineffective” rather than “partially effective.”
Plaintiff “partially effective” in twenty out of the twenty-three categories and “ineffective” in the
remaining three categories (an improvement from the ten categories that had been rated
“ineffective” two weeks prior on the Mid-Year Review), resulting in an overall rating of “partially
effective.” Id.
In an apparent attempt to explain the discrepancies among these reviews, Defendants

represent that the Mid-Year Review was intended to “reflect concerns that had been identified
throughout the year, not just since the January [Review],” DSUMF ¶ 79, and that the Annual
Review “reflected an assessment of progress made during the entire school year to that time, not
just for the period since the prior review.” DSUMF ¶ 93. Yet, Defendants also acknowledge (1)
that the Mid-Year Review accounts in part for the same period as the January Review (the start of
the school year through January, and March, respectively)17 and (2) that the Mid-Year Review and
Annual Reviews account for virtually the same period (the start of the school year through late
March, and early April, respectively). As a result, the drastic fluctuation in ratings among the
reviews cast doubt on Defendants’ articulated concerns.18 As does the fact that Plaintiff’s higher
ratings on the Annual Review coincided with an increase in negative feedback.19 Compare Def.

17 DSMUF ¶ 79; see also Def. Ex. 5 (indicating that the January Review accounted for the start of
the school year through January based on observations such as “[i]nformal and [f]ormal
observations have taken place throughout the first part of the year,” and feedback regarding
“teacher activity completion data as of 1/4/2019.”).

18 Indeed, within a two-month span, and after learning that Plaintiff was pregnant and planned to
request leave, the same supervisor who provided twenty “effective,” three “partially effective,”
and zero “ineffective” ratings to Plaintiff then provided Plaintiff with zero “effective,” thirteen
“partially effective,” and ten “ineffective” ratings while accounting, in part, for the same period.
And less than two weeks after that, Plaintiff received “partially effective” ratings in twenty out of
the twenty-three categories on her Annual Review (an improvement in nearly half of the
categories), for effectively the same time frame that was assessed in the Mid-Year Review.

19 The comments between Plaintiff’s Mid-Year Review, for which she received an “ineffective”
overall rating, and her Annual Review, for which she received a “partially effective” rating overall,
Exs. 7, 8.
Plaintiff’s written rebuttal statements also undermine Defendants’ articulated concerns.
See Plf. Opp. 10-12 (citing Ex. 10). Defendants argue that Plaintiff’s rebuttal statements are not
sufficient to cast doubt on Duke-Jackson’s evaluations because they fail to address most of the
deficiencies noted and because they express Plaintiff’s own opinion of her performance. Def. Br.

at 19-26; Def. Reply at 7-8.20 The Court disagrees. Plaintiff’s April 15, 2019 rebuttal statement,
submitted in response to the Mid-Year Review, and Plaintiff’s May 6, 2019 rebuttal statement,
submitted in response to the Annual Review, together challenge the factual bases of nearly all
twenty-three competency ratings included in each review.21 See Def. Ex. 10 at 143-157, 168-175.

are virtually the same, with the primary difference being that the Annual Review contains more
substantive comments, each of which notes additional areas of concern, while providing improved
ratings in nearly all individual competency areas. Compare Def. Exs. 7, 8.

20 In support, Defendants cherry-pick language from Healy and Kautz, both of which are
distinguishable. See Kautz, 412 F.3d at 466, 474-76 (affirming, in the RIF context, that the plaintiff
failed to show that the performance-based reasons articulated in his file were pretextual because
rather than assert that they had no factual bases and present some evidence to support this, the
plaintiff instead provided explanations for his noted lack of preparation, asserted that he lacked
memory of certain criticism, and “ma[de] no effort to show that other criticism was pretextual.”);
Healy, 860 F.2d at 1219-20 (affirming, in the RIF context, that the articulated business reasons did
not serve as a pretext because the defendant demonstrated that competitive pressures required
consolidating positions, the statistical evidence showed that the RIF did not disproportionately
impact older workers, and the replacement demonstrated strengths in areas where the plaintiff had
shown weaknesses, while also noting that the RIF context is unique in that “competent employees
who in more prosperous times would continue and flourish at a company may nevertheless have
to be fired.”).

21 Defendants direct the Court to Plaintiff’s rebuttal to the Annual Review to argue that most of
Duke-Jackson’s comments go undisputed. Def. Br. at 19-23. But as noted above, supra n.19, the
comments between Plaintiff’s Mid-Year Review and Plaintiff’s Annual Review remained virtually
the same, and Plaintiff disputed the comments in the Mid-Year Review in her rebuttal to that
review, and subsequently disputed any additional comments made in the Annual Review in her
rebuttal to that review. To the extent that Defendants suggest that Plaintiff needed to re-raise the
same contentions made in her Mid-Year rebuttal in her Annual rebuttal, the Court disagrees.
By way of example, Plaintiff attacks Duke-Jackson’s observation that “[m]ost students at the
various grade levels have not met the mark for progress as per Interim and SRI data,” Def. Ex. 8
at 132, by contending that this data was not even available at the time of the evaluation. Def. Ex.
10 at 156. Likewise, Plaintiff challenges Duke-Jackson’s observation that a PD Plan had not been
completed for a teacher on CAP by pointing to the date stamps on the “EdReflect” system to

demonstrate that she had completed the PD plan for that teacher in October and that it was
reopened in February for adjustments. Id. at 144. And while certain challenges sound more closely
in opinion, casting doubt on some of the proffered reasons may be sufficient to throw all of the
proffered reasons into doubt.22 Kautz v. Met-Pro Corp., 412 F.3d 463, 476 (3d Cir. 2005)
Finally, the Court turns to Plaintiff’s argument that the inconsistencies between
Defendants’ proffered reasons for termination—initially, economy and/or restructuring reasons,
and later performance-based reasons—are such that a reasonable factfinder could rationally find
them unworthy of credence and infer that they were a pretext. Plf. Opp. at 8-10. The Court
agrees.23 Plaintiff received her termination notice in May 2019 and requested a Statement of

22 Defendants also argue that Plaintiff’s rebuttal statements are undermined by her deposition
testimony because such testimony acknowledges that her performance was subpar in certain areas.
Def. Br. at 24-25 (citing Def. Ex. 13 at 164:25-178:30, 181:9-12, 184:10-21, 185:3-23). But
Defendants mischaracterize the cited testimony. There was no acknowledgement of “subpar”
performance. Instead, when asked about the increase in parent complaints during the 2018-19
school year, Plaintiff offered an explanation: a newly available forum for parents to file complaints
that became effective at the start of the school year. Def. Ex. 13 at 181:9-181:19. And when asked
about her involvement in handling such complaints, Plaintiff stated that she took an active role in
any incident that required principal involvement, alongside the school’s Harassment, Intimidation,
and Bullying (“HIB”) Specialist. Id. at 181:9-184:21.

23 See Laurora, No. 21-2764, 2022 WL 4093738, at *7 (acknowledging that shifting rationales
may establish pretext, while finding that the purportedly shifting rationales provided by appellees
(initially, a lack of leadership skills, and later a lack of requisite qualifications and experience)
were not contradictory or inconsistent, and thus were not sufficient to establish pretext).
Reasons for Non-Renewal and a Donaldson Hearing thereafter. Plf. Exs. 3, 9. In response to each
of these requests, Plaintiff received two letters from the Newark BOE—one dated May 21, 2019,
and one dated June 7, 2019—and each stated that the basis for Plaintiff’s non-renewal was
“economy and/or organization restructuring.” Plf. Exs. 3, 4. Although Defendants now argue that
a document from Plaintiff’s Donaldson Hearing file and Dr. Yolanda Mendez’s deposition

testimony demonstrate that the reason for termination was performance-based, and that any
inconsistencies were the result of an internal mistake,24 this is a question of fact for the jury.25
In sum, because a reasonable juror could find that Defendants’ proffered reasons for
termination are unworthy of credence, Defendants’ motion for summary judgment is denied as to

24 Defendants direct the Court to the testimony of Dr. Mendez, the Executive Director of Human
Resource Services at the Newark BOE, who signed the May 21, 2019 and June 7, 2019 letters to
Plaintiff indicating that the basis for non-renewal was “economy and/or organization
restructuring.” Def. Reply at 4 n.4 (citing Def. Ex. 16 at 26:22-31:16, 37:6-38:9, 92:15-98:24).
According to Dr. Mendez, in preparing for her deposition, she came across documents that
indicated that Duke-Jackson listed performance as the reason for nonrenewal in the database; thus,
Dr. Mendez believes that when an individual at the labor office created the letters that were sent
to Plaintiff (containing her signature), they must have inadvertently noted the wrong reason for
non-renewal. Def. Ex. 16 at 79:24-80:6; 94:19-98:10. This testimony, without more, creates
nothing more than a dispute of fact. See Marino, 358 F.3d at 247 (quoting Anderson, 477 U.S. at
255)) (“In considering a motion for summary judgment, a district court may not make credibility
determinations or engage in any weighing of the evidence; instead, the nonmoving party's evidence
‘is to be believed and all justifiable inferences are to be drawn in his favor.’”).

25 The parties also dispute, at length, Plaintiff’s initial understanding of the basis for termination—
an argument that the Court need not engage with because “[i]t is the defendants’ view of [the
plaintiff’s] performance which is at issue in this case.” Adams, 2000 WL 1781955, at *7 (citing
Fuentes, 32 F.3d at 765) (emphasis in original). Nevertheless, the Court cautions both parties
against mischaracterizing the record in this respect. For example, Defendants point to Plaintiff’s
May 17, 2019 EEOC complaint to argue that Plaintiff failed to mention economic reasons for
discharge and thus understood that this was not the basis for termination; yet the record reflects
that Plaintiff did not receive Defendants’ letter that provided the economic/restructuring basis for
termination until at least May 21, 2019. Def. Reply at 5, Plf. Ex. 4. Likewise, Plaintiff argues
repeatedly that because “performance was not part of the reason for non-renewal,” the hearing did
not address Plaintiff’s performance or qualifications, yet Plaintiff herself testified that she spoke
about her accomplishments at the hearing. Plf. Opp. at 5, 7-8, Def. Ex. 13 at 273:8-274:1.
Plaintiff’s discrimination claims.
B. Retaliation Claim (Counts Two and Five)
Defendants also seek summary judgment as to Plaintiff’s retaliation claims under Title VII
and the NJFLA. Under Title VII, it is unlawful “for an employer to discriminate against any of
his employees . . . because [the employee] has opposed any practice made an unlawful employment

practice by [Title VII], or because [the employee] has made a charge, testified, assisted, or
participated in any manner in an investigation, proceeding, or hearing under [Title VII].” 42
U.S.C. § 2000e–3(a). The NJFLA also makes it unlawful for employers to discriminate against
employees for exercising their rights under the statute. N.J. Stat. Ann. § 34:11B–9; Wolpert v.
Abbott Lab'ys, 817 F. Supp. 2d 424, 439 (D.N.J. 2011).
Retaliation claims are subject to the same McDonnell Douglas burden-shifting analysis as
the discrimination claims: a plaintiff must first establish a prima facie case for retaliation under
Title VII or the NJFLA by showing that (1) she engaged in protected activity; (2) the employer
took an adverse employment action against her; and (3) there was a causal connection between her

participation in the protected activity and the adverse employment action. Moore v. City of
Philadelphia, 461 F.3d 331, 340-41 (3d Cir. 2006), as amended (Sept. 13, 2006); Gary v. Am.
Bread Co., LLC, No. 19-15017, 2021 WL 5356093, at *6 (D.N.J. Nov. 17, 2021). If the plaintiff
does so, the burden shifts to the employer to advance a legitimate, non-retaliatory reason for its
adverse employment action. Carvalho-Grevious v. Del. State Univ., 851 F.3d 249, 257 (3d Cir.
2017) (citing Moore, 461 F.3d at 342). And if the employer satisfies that burden, the plaintiff must
“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.” Id. (quoting
Moore, 461 F.3d at 342). In other words, a plaintiff must prove, by a preponderance of the
evidence, that the harm would not have occurred but-for the protected activity. Id. at 258.
1. First Step - Prima Facie Case
Defendants contend that Plaintiff’s claims must be dismissed because Plaintiff cannot make
out a prima facie retaliation claim. Defendants assert that Plaintiff fails to establish the first and
third elements of a retaliation claim: that she engaged in protected activity, and that there was a

causal connection between her participation in such activity and the adverse employment actions.
Def. Br. at 30-33.
The first element of a retaliation claim requires a protest of discriminatory employment
practices, and that protest—in whatever medium and whether formal or informal—must
specifically relate to the protected conduct allegedly being infringed. Barber v. CSX Dist. Servs.,
68 F.3d 694, 702 (3d Cir.1995); see also Sabo v. UPMC Altoona, 386 F. Supp. 3d 530, 555 (W.D.
Pa. 2019) (“Protected activity under Title VII is whenever an employee complains to management
about discrimination so that it is possible for management to discern from the context of the
statement that the employee opposes an unlawful employment practice.” (internal quotation marks

and citations omitted)). Here, there is no dispute that Plaintiff complained to her union
representative on multiple occasions about her February 14, 2019 interaction with Duke-Jackson,
and that these complaints related to protected conduct. Plf. Opp. at 14-15; Def. Reply at 8-9; Plf.
Ex. 2. Defendants argue, however, that because Plaintiff complained to her union representative,
as opposed to the administration, Plaintiff did not engage in “protected activity.” Def. Reply at 8-
9. While Defendants’ argument has at least superficial appeal, they offer no legal support for this
assertion.26

26 Cf. Hibbard v. Penn-Trafford Sch. Dist., No. 13-622, 2014 WL 640253, at *16-17 (W.D. Pa.
Feb. 19, 2014) (citing Barber, 68 F.3d at 701-02) (finding that the plaintiff’s complaint to her
union representative was not sufficient to show that she engaged in protected activity—not because
The second element of a prima facie retaliation claim requires showing that there was an
adverse action. Moore, 461 F.3d at 340-42. The Supreme Court defines an adverse action as a
“significant change in employment status, such as hiring, firing, failing to promote, reassignment
with significantly different responsibilities, or a decision causing a significant change in benefits.”
Burlington Indus. Inc. v. Ellerth, 524 U.S. 742, 761 (1998). Plaintiff contends, without opposition,

that her negative performance reviews and termination were adverse employment actions taken in
retaliation for reporting her interaction with Duke-Jackson. Plf. Opp. at 17. The Court agrees. See
Clark v. Philadelphia Hous. Auth., 701 F. App’x 113, 117 (3d Cir. 2017) (citations omitted)
(explaining that for an unfavorable performance review to constitute an adverse employment
action sufficient to support a retaliation claim, the plaintiff “must allege facts from which it could
be inferred that the unfavorable performance review adversely affected the terms or conditions of
her employment.”).
To establish the third element of a prima facie retaliation claim—the causal connection—
the plaintiff “must produce evidence sufficient to raise the inference that her protected activity was

the likely reason for the adverse employment action.” Carvalho-Grevious, 851 F.3d at 259
(quoting Kachmar v. SunGard Data Sys., Inc., 109 F.3d 173, 177 (3d Cir. 1997)) (emphases in
original). A court may consider a “broad array of evidence” to find a causal link. Farrell v.
Planters Lifesavers Co., 206 F.3d 271, 283-84 (3d Cir. 2000). “Unusually suggestive” temporal
proximity between the protected activity and adverse action “is sufficient standing alone to create
an inference of causality and defeat summary judgment.” LeBoon v. Lancaster Jewish Cmty. Ctr.

it was made to a union representative, but because the contents of the complaint were too vague to
plausibly infer that the defendant refused to rescind her resignation in retaliation for her choice to
engage in protected activities).
Ass’n, 503 F.3d 217, 232 (3d Cir. 2007) (citations omitted). Otherwise, a court considers “whether
the proffered evidence, looked at as a whole, may suffice to raise the inference.” Id. (internal
quotation marks and citation omitted).
Plaintiff contends that the “timing alone [] establishes pretext.” Plf. Opp. at 17. In support,
Plaintiff reiterates that in February 2019, Duke-Jackson learned that Plaintiff was pregnant and

planned to take leave, and that Plaintiff complained about this interaction that same month. Id.
The following month, Duke-Jackson “began targeting [Plaintiff] with negative performance
reports,” which continued through May 2019, when Plaintiff learned that her contract would not
be renewed. Id. Plaintiff also cites to Miller v. Patterson Motors, Inc., and Waters v. Genesis
Health Ventures, Inc., both of which found that the temporal proximity between the complaint and
the adverse action—one week (Miller), and three business days (Waters)—were “unusually
suggestive” and therefore sufficient to create an inference of causality and defeat summary
judgment. Plf. Opp. at 17 (citing Miller v. Patterson Motors, Inc., No. 2007-33, 2009 WL 789897,
at *25 (W.D. Pa. Mar. 24, 2009); Waters v. Genesis Health Ventures, Inc., No. 3-2909, 2004 WL

2958436, *6 (E.D. Pa. Dec. 21, 2004)). Here, in contrast, approximately one month passed
between Plaintiff’s complaint to the union representative and her first negative performance
review, and approximately three months passed between the complaint and Plaintiff’s termination.
Accordingly, those cases do not support Plaintiff’s position to the extent claimed, and the Court
considers whether timing plus other circumstantial evidence supports the inference of causality.27

27 See Thomas v. Town of Hammonton, 351 F.3d 108, 114 (3d Cir. 2003) (temporal proximity of
three weeks was not unduly suggestive, thus, “timing plus other evidence” in the context of the
record as a whole, were considered); see also Farrell, 206 F.3d at 280-81 (“Although timing and
ongoing antagonism have often been the basis for the causal link, our case law clearly has allowed
a plaintiff to substantiate a causal connection for purposes of the prima facie case through other
types of circumstantial evidence that support the inference.”).
Circumstantial evidence may include an “intervening antagonism or retaliatory animus,
inconsistencies in the employer’s articulated reasons for terminating the employee, or any other
evidence in the record sufficient to support the inference of retaliatory animus.” LeBoon, 503 F.3d
217 at 232-33. Thus, the Court considers the inconsistent reasons proffered by Defendants for
Plaintiff’s termination, that is, the initial economy and/or organization restructuring and the later

performance-based concerns.28 See Plf. Opp. at 18 (arguing that such inconsistencies demonstrate
pretext). Likewise, the Court considers the evidence that, as discussed above, undermines each of
Defendants’ proffered reasons (i.e., the hiring of a male replacement for the precise role that
plaintiff held, the drastic variation in reviews that purport to cover some of the same time periods,
and the rebuttal statements submitted by Plaintiff that challenge the factual bases of many of the
concerns articulated in the reviews). In light of the timing, coupled with this circumstantial
evidence, a reasonable juror could infer that Plaintiff’s protected activity was likely the reason for
the negative performance reviews and subsequent termination.
2. Step Two - Non-Discriminatory Reason for the Adverse Employment Action

Because Plaintiff makes out a prima facie retaliation claim, the Court turns to the second
step of the McDonnell Douglas framework. An employer can satisfy its burden of production at
the second step by providing evidence that “advance[s] a legitimate, non-retaliatory reason for its
conduct.” Moore, 461 F.3d at 342 (quoting Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d

28 See Farrell, 206 F.3d at 281 (citation omitted) (“[A] plaintiff may establish the [causal]
connection by showing that the employer gave inconsistent reasons for terminating the
employee.”); Waddell v. Small Tube Prod., Inc., 799 F.2d 69, 73 (3d Cir. 1986) (finding no clear
error where the district court concluded that the defendant’s proffered reason for failure to rehire
was pretextual based on the defendant’s inconsistent explanations—claiming on the one hand that
the plaintiff was considered for rehiring by mistake, and on the other, that the basis for not rehiring
was due to plaintiff’s negative attitude and the fact that certain employees were against rehiring
the plaintiff).
Cir. 1997)). Defendants appear to incorporate by reference the “non-discriminatory reason”
arguments that were set forth as to the discrimination claims. 29 Thus, for the reasons set forth
above, the Court finds that Defendants have sufficiently established their step two burden of
production for purposes of the current motion.
3. Step Three - Proffered Reason is Pretextual

At the third step, a plaintiff’s “ultimate burden is to prove that retaliatory animus was the
but-for cause of the adverse employment action.” Carvalho-Grevious, 851 F.3d at 258 (internal
quotation marks and citation omitted). Accordingly, a plaintiff “must be able to convince the
factfinder both that the employer’s proffered explanation was false, and that retaliation was the
real reason for the adverse employment action.” Moore, 461 F.3d at 342 (quoting Krouse, 126
F.3d at 500-01). A plaintiff can do this by “demonstrat[ing] weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions from which a reasonable juror could conclude
that the [d]efendants’ explanation is unworthy of credence, and hence infer that the employer did
not act for the asserted nonretaliatory reasons.” Carvalho-Grevious, 851 F.3d at 262 (internal

quotation marks and brackets omitted). The court may “rely largely on the evidence produced in
support of [the plaintiff’s] prima facie case,” as “nothing about the McDonnell Douglas formula
requires [the court] to ration the evidence between one stage or the other.” Id. (internal quotation
marks and citation omitted).
Here, to prevail at trial, Plaintiff need only convince the factfinder that had Plaintiff not
complained of her interaction with Duke-Jackson, Defendants would not have issued the negative
performance reviews and recommended non-renewal. See Carvalho-Grevious, 851 F.3d at 262.

29 See Def. Opp. at 30 n.4 (noting in the retaliation section that the same McDonnell Douglas
burden-shifting framework applies).
Duke-Jackson’s first written review of Plaintiff was completed in January 2019. DSUMF ¶ 57;
PSUMF ¶ 57. This review rated Plaintiff’s performance as “effective” overall, with Plaintiff
earning “effective” ratings across twenty out of the twenty-three categories, and “partially
effective” ratings in only three categories. Def. Ex. 5. In February 2019, Duke-Jackson confronted
Plaintiff about whether she was pregnant and the extent of the leave that she intended to take, and

Plaintiff reported this interaction that same month. DSUMF ¶¶ 68, 70; PSUMF ¶¶ 68, 70; Plf. Ex.
2. The following month, Duke-Jackson completed Plaintiff’s Mid-Year Review, which rated
Plaintiff’s performance as “ineffective” overall, with Plaintiff earning zero “effective” ratings
(despite receiving twenty “effective” ratings less than two months prior, and during a period which
was purportedly accounted for in this review), thirteen “partially effective” ratings, and ten
“ineffective” ratings (across categories that had each been rated “effective” less two months prior).
DSUMF ¶¶ 77-78; Def. Ex. 7. And just weeks after that, Duke-Jackson completed Plaintiff’s
Annual Review, this time rating Plaintiff as “partially effective” overall with “partially effective”
ratings across twenty out of the twenty-three categories (including ten that had been rated

“ineffective” approximately two weeks before), and “ineffective” ratings across three of the
categories. DSUMF ¶ 87; Def. Ex. 8. For the reasons set forth above, these inconsistencies raise
a factual issue regarding the employer’s true motivation, particularly when coupled with the
inconsistencies between Defendants’ proffered reasons, and the evidence that undermines the
economy/restructuring reason. As such, Plaintiff’s claims against Defendants withstand summary
judgment.
C. Hostile Work Environment Claim (Count Three)
Defendants also seeks summary judgment for Plaintiff’s hostile work environment claim.
To establish a hostile work environment claim under Title VII, the plaintiff must present evidence
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 employer liability. Cardenas v. Massey, 269 F.3d 251, 260 (3d Cir. 2001) (citation
omitted). “To determine whether an environment is hostile, 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.” Nitkin v. Main Line Health, 67 F.4th 565, 570
(3d Cir. 2023) (internal quotation marks and citations omitted). For discrimination to be
considered severe or pervasive, it must be “extreme” such that it “alter[s] the conditions of [the
victim’s] employment and create[s] an abusive working environment.” Id. (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986); Faragher v. City of Boca Raton, 524 U.S. 775, 788
(1998)). Thus, “simple teasing, offhand comments, and isolated incidents (unless extremely
serious)” are insufficient. Id. (quoting Faragher, 524 U.S. at 788).

Here, Plaintiff concludes, without analysis or citations to the record, that she has
established a prima facie case for a hostile work environment claim. See Plf. Opp. at 18-22. As
to the first and second elements, Plaintiff asserts that she was subjected to intentional
discrimination when Duke-Jackson “rated [Plaintiff] three different times” “between March and
May of 2019,” “more than any other principal in [] [Plaintiff’s] network, and possibly more than
any other principal in the Board,” after finding out that Plaintiff would be requesting FMLA in
February 2019. Id. at 19. Plaintiff continues that each of these ratings indicated that she was an
“ineffective” principal, despite her “being a model principal,” and that such conduct “was
sufficiently severe and pervasive as to alter the terms and conditions of [Plaintiff’s] employment.”
Id. In support, Plaintiff cites to Zastrow for the proposition that “two lone incidents” of harassment
may be sufficient to satisfy the “severe and pervasive” element. Id. at 20 (citing Zastrow v. Ikegami
Elecs. (U.S.A.) Inc., No. 97-3384, 1997 WL 827456, at *3 (D.N.J. Dec. 2, 1997)). But Zastrow is
distinguishable. In Zastrow, the plaintiff brought a hostile work environment sexual harassment
claim under the NJLAD and the defendant moved to dismiss on the ground that the plaintiff’s

allegations—that the President of the company attempted to touch the plaintiff’s breast on two
occasions, each of which were at business receptions with colleagues present—failed to adequately
plead severe or pervasive conduct. Id. at *1-3. The Zastrow court disagreed, finding that whether
such conduct was “merely offensive” or sufficiently “severe or pervasive enough to create an
objectively hostile or abusive work environment” was a question for the jury. Id. The court
emphasized that “[o]n a motion to dismiss, the issue is not whether a plaintiff will ultimately
prevail but whether [the plaintiff] is entitled to offer evidence to support the claims.” Id. (internal
quotation marks and citations omitted).
Here, in contrast, Plaintiff is not only entitled to present evidence of severe or pervasive

discrimination at this stage, but such evidence—sufficient to produce a genuine dispute of material
fact—must be produced. Plaintiff fails to meet her burden. Even if the Court assumes that Plaintiff
satisfies the first element, Plaintiff provides no basis for a reasonable jury to find that such
conduct—an increase in the number of reviews and negative ratings on these reviews—was
“severe and pervasive,” such that it “alter[ed] the conditions of [Plaintiff’s] employment and
create[d] an abusive working environment.”30 Nitkin, 67 F.4th at 570. Thus, Defendants’ motion
for summary judgment is granted with respect to the hostile work environment claim.

30 Because Plaintiff has not satisfied her burden with respect to the second element, the Court does
not address the remaining elements.
IV. CONLCUSION
For the reasons stated above, Defendants’ motion for summary judgment, D.E. 30, is
GRANTED in part and DENIED in part. Defendants’ motion is GRANTED as to Plaintiff's
hostile work environment claim and is otherwise DENIED. An appropriate Order accompanies
this Opinion.
Dated: July 10, 2023

Qe 8 Van ¢
\
John Michael Vazquez, sbi

29

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10277102. Public record. Not legal advice.