The opinion
UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
ELIZABETH KUNKLE
Plaintiff,
v.
No. 1:21-cv-20245(NLH-MJS)
REPUBLIC BANK and
WILLIAM POUNDS OPINION
Defendants.
APPEARANCES:
Sebastian Ionno
D. Rebecca Higbee
Aiello Harris Marth Tunnero & Schiffman, PC
140 S. Broadway, Suite 5
Pitman, NJ 08071
Attorneys for Plaintiff
William J. Leahy
Bridget Devlin
Littler Mendelson
Three Parkway
1601 Cherry Street
Suite 1400
Philadelphia, PA 19102
Attorneys for Defendants
HILLMAN, District Judge
The instant matter involves a former employee of Republic
Bank who asserts claims against the bank and her former
supervisor under the New Jersey Law Against Discrimination
(“NJLAD” or “LAD”) on the basis of gender. Currently pending
before the court is Defendants’ Motion for Summary Judgment (ECF
No. 17). For the reasons that follow, Defendants’ Motion shall
be granted.
BACKGROUND
The undisputed facts1 of this matter as they specifically
pertain to whether Plaintiff’s NJLAD claims are properly before
this Court are as follows.2 Defendant Republic Bank is a state
chartered financial institution organized and existing under the
laws of the Commonwealth of Pennsylvania with its principal
place of business in Pennsylvania. (SUF ¶ 1, n.1; ECF No. 1, ¶
7.) Plaintiff, a citizen and resident of New Jersey, began
working at Defendant Republic Bank in 20053 as an administrative
assistant in the Commercial Real Estate Department. (SUF ¶ 1;
1 For purposes of the instant discussion, this Court shall refer
to Defendants’ Statement of Undisputed Facts as “SUF,”
Plaintiff’s Response as “RSUF,” Plaintiff’s Statement of
Undisputed Facts as “Pl.’s SUF” and Defendants’ Response thereto
as “Defs.’ RSUF.”
2 Plaintiff submits a Certification in support of her Opposition
to the instant Motion. (ECF No 21-32.) To the extent any
portion of Plaintiff’s Certification contradicts her deposition
testimony or other evidence of record, it shall be disregarded
by the court. Hashem v. Hunterdon Cent. Reg'l High Sch. Bd. of
Educ., Civil Action No. 15-8585, 2019 U.S. Dist. LEXIS 72483, at
*20 (D.N.J. April 30, 2019) (“Plaintiff cannot, now, alter her
own deposition testimony through the submission of a
certification in opposition to summary judgment.”).
3 Plaintiff’s Statement of Undisputed Facts provides 2015 as the
year she began employment with Defendant Bank. This appears to
be a typographical error, as she admits to Defendants’ Statement
of Undisputed Facts that the year was 2005.
RSUF ¶¶ 1, 4; Pl.’s SUF ¶ 2; Defs.’ RSUF ¶ 2.) In March 2007,4
Plaintiff was promoted to the position of Portfolio Manager and
began reporting to Defendant Pounds, Senior Vice President of
Commercial Real Estate. (SUF ¶ 3; RSUF ¶ 3; Pl.’s SUF ¶¶ 3-5;
Defs.’ RSUF ¶¶ 3-5.)
Throughout her employment with Republic, Plaintiff worked
out of the bank’s headquarters at Two Liberty Place in
Philadelphia, Pennsylvania, except when she was working remotely
from her home in New Jersey on Fridays in 2017 and during the
pandemic in 2020-21. (SUF ¶ 4, n.1; RSUF ¶ 4.) In 2017,
Plaintiff worked remotely on Fridays so she could spend more
time with her young daughter in the morning when she would
otherwise be commuting to work. (SUF ¶¶ 38-39; RSUF ¶¶ 38-39;
Pl.’s SUF ¶ 93; Defs.’ RSUF ¶ 93.) Plaintiff’s request to do so
was initially presented to Defendant Pounds, who in turn spoke
with Ms. Zangrilli of Human Resources for final approval. (SUF ¶
39.) Both Pounds and Zangrilli were physically located in and
worked out of the Philadelphia office. (ECF No. 17-5 at 22,
24.)
4 Plaintiff’s Statement of Undisputed Facts provides 2017 as the
year she became a Portfolio Manager and began reporting to
Defendant Pounds. Again, this appears to be a typographical
error, as she admits to Defendants’ Statement of Undisputed
Facts that the year was 2007.
After 2017 Plaintiff returned to the office full-time but
began working remotely again in March 2020, when the Covid-19
pandemic first became widespread. (SUF ¶ 43; RSUF ¶ 43; Pl.’s
SUF ¶ 94; Defs.’ RSUF ¶ 94.) At some point in late 2020, after
Plaintiff’s initial request to continue working remotely was
approved, Defendant Bank implemented the “Flexible Workplace
Policy” — a more formal process for employees to make requests
to work remotely, and to provide guidance to managers in
granting or denying such requests. (SUF ¶ 46; RSUF ¶ 46; Defs.’
RSUF ¶ 148.) Under the Flexible Workplace Policy, employees
seeking a Flexible Workplace arrangement (such as working
remotely) were required to obtain approval for the arrangement
from their Department Manager, Division Manager, and Human
Resources. (SUF ¶ 47; RSUF ¶ 47; Pl.’s SUF ¶ 279; Defs.’ RSUF ¶
279.)
The Policy makes clear:
Childcare issues are not considered to be
qualifying reasons. The PTO policy is in place to
address short-term needs. Longer term needs
should be handled in a manner that is conducive
to the employee’s work expectations. Employees
working from home are expected to have
appropriate childcare provisions in place and
should not be the primary caretaker while working
from home.
(SUF ¶ 48; RSUF ¶ 48.)
By December 2020, all the other employees in Defendant’s
Commercial Real Estate Department in Philadelphia (Plaintiff’s
unit) had physically returned to the office; Plaintiff was the
only employee from that unit working remotely. (SUF ¶¶ 43, 45;
RSUF ¶¶ 43, 45; Defs.’ RSUF ¶ 143; ECF No. 17-5 at 74-75.)
On December 30, 2020, Plaintiff engaged in an email
exchange with Lesley Fedor of Human Resources, in which
Plaintiff informed Ms. Fedor that she would continue to work
remotely, as her supervisor, Defendant Pounds, had given her
permission to do so until the school year ended in June 2021.
This arrangement had been approved by Ms. Zangrilli. (SUF ¶ 44;
ECF No. 17-5 at 74, 76-77; ECF No. 21-18 at 540-41.) Ms. Fedor
requested that Plaintiff complete the bank’s Flexible Workplace
Request Form. (SUF ¶¶ 46-47; RSUF ¶¶ 46-47; Pl.’s SUF ¶ 294;
Defs.’ RSUF ¶ 294; ECF No. 17-5 at 83; ECF No. 21-18 at 540-41.)
In late April 2021, Defendant Pounds asked Plaintiff to
provide him with a proposed schedule of the days she would be
coming into the office each week upon her expected return in
June. (SUF ¶ 49; RSUF ¶ 49.) On May 4, 2021, Plaintiff emailed
Defendant Pounds the following:
Hi Bill. I have discussed this with Jesse and we
ran it by his mother. It’s impossible to say yes,
I can come in every Wednesday or two days a week
because his grandmother requires daily care. I’m
really not sure I can answer this with Jesse’s
changing schedule due to COVID and his
requirements to be deployed and work different
areas. This is why a remote position would be
ideal. I truly appreciate you trying to be
flexible with me. I know the bank has to do what
they feel is best.
(SUF ¶ 50; RSUF ¶ 50; Pl.’s SUF ¶ 299; Defs.’ RSUF ¶ 299.)
Defendant Pounds responded by advising Plaintiff that he
would discuss her request with his supervisor, Steve McWilliams.
(SUF ¶ 51; RSUF ¶ 51; Pl.’s SUF ¶ 300; Defs.’ RSUF ¶ 300.)
McWilliams ultimately denied Plaintiff’s request to continue
working remotely through the summer. (SUF ¶ 52; RSUF ¶ 52; Pl.’s
SUF ¶ 145; Defs.’ RSUF ¶ 145.) At some point between May 4,
2021 and May 13, 2021, Defendant Pounds called Plaintiff and
advised her that she would not be able to continue working
remotely past June 15, 2021 — the date previously agreed upon
for her return to the office. (SUF ¶ 53; RSUF ¶ 53.)
On May 14, 2021, Defendant Pounds sent Plaintiff an email
asking her to call him, because there was a “potential other
opportunity within the bank” for her to pursue. (SUF ¶ 55; RSUF
¶ 55.) While Plaintiff never called Defendant Pounds to discuss
the other opportunity within the bank, Zangrilli advised her
that the bank was hiring for a Mortgage Underwriter position,
which would be remote. (SUF ¶ 56; RSUF ¶ 56; Pl.’s SUF ¶ 284;
Defs.’ RSUF ¶ 284.) Zangrilli also asked Plaintiff if she would
be willing to explore a “hybrid approach,” or if her “current
role could sit out of the New Jersey office for a day or two”
that she is on site. (SUF ¶ 57; RSUF ¶ 57.) Plaintiff informed
Zangrilli that she was “extremely grateful” that the Bank was
willing to give her those options, but she only wished to
explore the Mortgage Underwriter position, as it “would allow
[her] to stay with the Bank and have the remote capability,” and
she felt that “at this point in [her] life a career change might
be in [her] best interest.” (SUF ¶ 58; RSUF ¶ 58.)
While the Mortgage Underwriter position was remote, the
position required Plaintiff to initially undergo two to four
weeks of onsite training at the New Jersey office. (SUF ¶ 59;
RSUF ¶ 59; Pl.’s SUF ¶ 285; Defs.’ RSUF ¶ 285.) Plaintiff
ultimately declined the Mortgage Underwriter position because it
appeared that traffic going from her daughter’s summer camp in
Sewell, New Jersey to the Bank’s office in Marlton, New Jersey
“was even more horrendous than going into the city.” (SUF ¶ 60;
RSUF ¶ 60.)
On May 24, 2021, Plaintiff and Zangrilli discussed
Plaintiff’s situation, at which time they mutually decided
Plaintiff and the bank would “go [their] separate ways,” and
June 16, 2021 would be Plaintiff’s last day of employment. (SUF
¶ 61; RSUF ¶ 61; Pl.’s SUF ¶ 59; Defs.’ RSUF ¶ 59.) In order to
preserve her ability to collect unemployment compensation,
Plaintiff and Zangrilli agreed to treat Plaintiff’s separation
from the bank as involuntary. (SUF ¶ 62; ECF No. 17-5 at 122.)
Plaintiff was permitted to continue working remotely until her
final day of employment. (SUF ¶ 63.)
In her last performance evaluation before leaving the bank
(signed by Plaintiff on March 10, 2021), Plaintiff wrote “I have
a good relationship with my direct manager [Defendant Pounds]
and any issues or problems that may come up, I make sure to
always communicate those to my manager and come up with a
solution. I also will reach out to managers of other
departments to gain their advice on the best way to resolve an
issue.” (ECF No. 21-24 at 14.) Plaintiff further commented
“Overall, I feel our department runs rather smoothly and we have
a great team.” (ECF No. 21-24 at 16.)5
During the times Plaintiff worked remotely while employed
by Defendant Bank, she always reported to the Philadelphia
office, whether it was virtually or in person four days a week
in 2017 and every other Wednesday for “pipeline” meetings in
2020-21. (SUF ¶ 4; ECF No. 17-4 at 10; Pl.’s SUF ¶ 50; Defs.’
RSUF ¶ 50.) Plaintiff’s e-mail signature listed her work
location as Defendant Republic’s headquarters in Philadelphia.
(SUF ¶ 5; RSUF ¶ 5; ECF No. 17-5 at 23-35, 38, 95; ECF No. 21-16
at 5; 21-19 at 3; 21-20 at 2; ECF No. 21-21 at 4, 6-7, 9; ECF
5 For purposes of the instant litigation, Plaintiff writes in her
Statement of Facts: “Since Pounds was her direct supervisor, it
was very difficult for her to work that way as she would have to
go to him for whatever issues the team had, and it would be very
obvious that he did not want to speak with her.” (Pl.’s SUF ¶
32.) The written evaluation speaks for itself. (ECF No. 21-24
at 10-17.)
No. 21-22 at 2, 4; ECF No. 21-23 at 3.) Throughout her
employment with Defendants, Plaintiff’s W-2 forms showed her
employer’s address to be in Philadelphia, Pennsylvania. (ECF No.
17-5 at 25-49).
After her employment with Defendants ended, unemployment
benefits correspondence listed Plaintiff’s former employer’s
(Defendant Republic’s) address as 50 S. 16th Street in
Philadelphia, Pennsylvania. (ECF No. 17-5 at 51.) Also after
her employment ended with Defendants, Plaintiff updated her
resume to indicate an end-date of June 2021. (ECF No. 17-5 at
53-54.) The resume lists the various positions Plaintiff held
with the bank between November 2005 and June 2021, and provides
her workplace location as “Philadelphia, PA” for each. (ECF No.
17-5 at 53-54.) Plaintiff’s resume does not indicate that she
ever worked for any company in New Jersey. (ECF No. 17-5 at 53-
54.)
DISCUSSION
I. Subject Matter Jurisdiction
This Court has diversity jurisdiction over this action
pursuant to 28 U.S.C. § 1332 as Plaintiff is a citizen of New
Jersey, Defendants Republic Bank and William Pounds are citizens
of the Commonwealth of Pennsylvania, and the amount in
controversy exceeds $75,000.00, exclusive of interests and
costs.
II. Standard of Review
A. Motion for Summary Judgment
Summary judgment is appropriate when the court is
satisfied that “‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits if any,’ . . . demonstrate the absence of a genuine
issue of material fact” and that the moving party is entitled to
a judgment as a matter of law. Celotex Corp. v. Catrett, 477
U.S. 317, 322-23 (1986) (citing Fed. R. Civ. P. 56).
An issue is “genuine” if it is supported by evidence such
that a reasonable jury could return a verdict in the nonmoving
party’s favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986). A fact is “material” if, under the governing
substantive law, a dispute about the fact might affect the
outcome of the suit. Id. Importantly,
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).
Initially, the moving party bears the burden of
demonstrating the absence of a genuine issue of material fact.
Celotex, 477 U.S. at 323 (“[A] party seeking summary judgment
always bears the initial responsibility of informing the
district court of the basis for its motion, and identifying
those portions of ‘the pleadings, depositions, answers to
interrogatories, and admissions on file, together with the
affidavits, if any,’ which it believes demonstrate the absence
of a genuine issue of material fact.”); see also Singletary v.
Pa. Dep’t of Corr., 266 F.3d 186, 192 n.2 (3d Cir. 2001)
(“Although the initial burden is on the summary judgment movant
to show the absence of a genuine issue of material fact, ‘the
burden on the moving party may be discharged by “showing”—that
is, pointing out to the district court—that there is an absence
of evidence to support the nonmoving party’s case’ when the
nonmoving party bears the ultimate burden of proof.”) (citing
Celotex, 477 U.S. at 325).
Once the moving party has met this burden, the nonmoving
party must identify, by affidavits or otherwise, specific facts
showing that there is a genuine issue for trial. Celotex, 477
U.S. at 324. A “party opposing summary judgment ‘may not rest
upon the mere allegations or denials of the . . . pleading[s].’”
Saldana v. Kmart Corp., 260 F.3d 228, 232 (3d Cir. 2001). For
“the non-moving party[] to prevail, [that party] must ‘make a
showing sufficient to establish the existence of [every] element
essential to that party’s case, and on which that party will
bear the burden of proof at trial.’” Cooper v. Sniezek, 418 F.
App'x 56, 58 (3d Cir. 2011) (citing Celotex, 477 U.S. at 322).
Thus, to withstand a properly supported motion for summary
judgment, the nonmoving party must identify specific facts and
affirmative evidence that contradict those offered by the moving
party. Anderson, 477 U.S. at 257.
III. Analysis
Plaintiff’s entire Complaint is based upon the New Jersey
Law Against Discrimination. “The LAD is one of New Jersey’s
leading legislative pronouncements that sets forth ‘the familiar
proposition that the clear public policy of this State is to
eradicate invidious discrimination from the workplace.’” Carmona
v. Resorts Int’l Hotel, Inc., 915 A.2d 518, 528 (N.J. 2007)
(quoting Craig v. Suburban Cablevision, Inc., 660 A.2d 505, 508
(N.J. 1995)). Nevertheless, “LAD acknowledges the rights of
employers to manage their businesses as they see fit.” Viscik v.
Fowler Equipment Co., 800 A.2d 826, 833 (N.J. 2002). To that
end, “the LAD is not intended to be a general civility code for
conduct in the workplace.” Davis v. World Ins. Assocs., LLC,
Civil Action No. 22-6392, 2023 U.S. Dist. LEXIS 52620, at *6-7
(D.N.J. March 28, 2023) (cleaned up).
As a preliminary — and also dispositive — matter,6
Defendants seek judgment on Plaintiff’s claims on the basis that
she may not avail herself of the NJLAD because she was employed
solely by Defendants’ Philadelphia, Pennsylvania office. (ECF
No. 17-2 at 10.) Plaintiff opposes this claim, asserting that
since: she worked remotely from her New Jersey home the last
sixteen (16) months of her employment with Defendants;
Defendants conducted business in New Jersey; and Plaintiff
collected unemployment benefits from the State of New Jersey,
6 In light of this disposition, the Court need not address
Defendants’ other arguments for summary judgment which dispute
Plaintiff’s NJLAD claims on the merits. The Court does note
Plaintiff’s claims that Defendant Pounds denied her an
“accommodation” by rejecting her 2021 request (made while she
was working remotely from her New Jersey home) to work 100%
remote throughout the end of Summer 2021 so she could be
available for her daughter. However, this type of denial, if
Plaintiff could be said to have a claim under NJLAD, does not
constitute discrimination under that statute. See Fitzgerald v.
Glenn Ins., Inc., Civil Action No. 1:20-CV-14891, 2023 U.S.
Dist. LEXIS 57018, at *31 n.11 (D.N.J. March 31, 2023) (“A
failure-to-accommodate claim under the LAD requires plaintiff to
demonstrate: (1) plaintiff is an individual with a disability;
(2) plaintiff is qualified to perform the essential functions of
the job, with or without reasonable accommodations; and (3) that
defendant failed to reasonably accommodate plaintiff’s
disabilities.”) (citations omitted). See also Dicino v. Aetna
U.S. Healthcare, Civil No. 01-3206, 2003 U.S. Dist. LEXIS 26487,
at *48 (D.N.J. June 23, 2003) (entering summary judgment against
a plaintiff on her NJLAD claim where she sought remote work or a
work location that was within 30 minutes of her home because of
pain caused by pancreatitis while commuting, finding “defendant
was not obligated to provide plaintiff with this accommodation
. . . this request goes directly to plaintiff’s ability to get
to and from her work location, having nothing to do with her
ability to perform her job duties once she got where she needed
to be.”). The same is true here.
she may pursue her claims under the NJLAD. (ECF No. 21 at 9.)
“The ‘restriction on the extraterritorial application of
the NJLAD is rooted in the well-settled understanding that New
Jersey law regulates conduct in New Jersey, not outside the
state.’” Peikin v. Kimmel & Silverman, P.C., 576 F.Supp.2d 654,
657-658 (D.N.J. Aug. 21, 2008) (quoting Buccilli v. Timby, Brown
& Timby, 660 A.2d 1261, 1263 (N.J. App. Div. 1995)). As such,
the NJLAD is only applicable to situations in which the work
location is in New Jersey. See Peikin, 576 F.Supp.2d. at 657
(“New Jersey courts have consistently applied the law of the
state of employment to claims of workplace discrimination, and
therefore only apply the NJLAD if the claimant was employed in
New Jersey.”) (internal quotation marks omitted) (emphasis in
original); see also Walters v. Safelite Fulfillment, Inc., Civil
No. 18-11111, 2019 U.S. Dist. LEXIS 52355, at *6 (D.N.J. March
28, 2019) (same); Mann v. Prince Telecom, LLC, Civil No. 1:12-
06263, 2013 U.S. Dist. LEXIS 104699, at *6-7 (D.N.J. July 26,
2013) (same). To that end, “under New Jersey law, a plaintiff’s
New Jersey residence alone is not sufficient to trigger
application of the NJLAD.” Bowers v. NCAA, 151 F. Supp. 2d 526,
531 (D.N.J. 2001); see also Mann, 2013 U.S. Dist. LEXIS 104699,
at *9 (“[A] plaintiff’s state of residency does not determine
whether that plaintiff may assert claims under the NJLAD.”).
“The New Jersey Supreme Court has explained that a proper
consideration to determine the applicability of the NJLAD is
whether the alleged discriminatory behavior ‘was expected or
intended to cause injury in New Jersey.’” Id. at 532 (quoting
Blakey v. Continental Airlines, Inc., 751 A.2d 538, 555 (2000)).
All of the allegedly discriminatory behavior against Plaintiff
occurred while she and Defendant Pounds were physically working
from Defendant Bank’s Philadelphia headquarters. (ECF No. 17-5
at 24, 36-37, 94; ECF No. 21-2 at 28, ECF No. 21-14 at 3-4; 21-
21 at 2-4, 6, 8, 10; ECF No. 21-22 at 43; ECF No. 21-23 at 2;
ECF No. 21-30 at 2-3.) When viewed in conjunction with the
entire record before this Court, the fact that Plaintiff
conducted a relatively small percentage of her sixteen-year-plus
term of employment from her residence in New Jersey (Pl.’s SUF
¶¶ 93-94) does not trigger the protections of the NJLAD.
Plaintiff, as well as her co-workers and supervisors in the
unit, were employed by, and for all intents and purposes, worked
“out of” the Philadelphia office. To “mak[e] the rights of each
of several co-workers dependent on his or her state of residence
would be an entirely unreasonable result.” Buccilli v. Timby,
Brown & Timby, 660 A.2d 1261, 1264 (N.J. Super. 1995) (citation
omitted).
Plaintiff began her employment at Defendant Bank’s
headquarters in Philadelphia, Pennsylvania. As such, her
position was based in Pennsylvania. See Mann, 2013 U.S. Dist.
LEXIS 104699, at *7 (“In light of the allegation that
[Defendant] is a New Jersey company, [] the Court will assume
for purposes of this motion that the position for which Mann
applied or attempted to apply was based in New Jersey.”).
Although Defendant Bank has branches in New Jersey, Plaintiff
never worked at any of them or for anyone located in New Jersey.
In fact, the record clearly demonstrates that Plaintiff was
resolute about not having to physically work — or even receive
training — at any of Defendant Bank’s locations in New Jersey.
(SUF ¶¶ 57-60; RSUF ¶¶ 57-60; Pl.’s SUF ¶¶ 58-59; Defs.’ RSUF ¶¶
58-59.)
To the extent Plaintiff relies upon Calabotta v. Phibro
Animal Health Corporation, 213 A.3d 210 (N.J. App. Div. 2019) to
distinguish her case from those cited by Defendants on this
issue, Calabotta is inapposite. The issue before the court in
Calabotta was whether the NJLAD covered a non-resident plaintiff
who was employed by a subsidiary of a New Jersey corporation.
The focus of the court’s analysis in Calabotta was the Illinois
plaintiff’s relationship to New Jersey with regard to an alleged
failure-to-promote to a different position in New Jersey, and
the ultimate termination of employment that occurred in
Illinois. The court concluded the NJLAD would apply to
Plaintiff’s failure-to-promote claim, since “the new position
sought by plaintiff and other potential applicants was going to
be located in [New Jersey], where the defendant company [ ] is
based.” Calabotta, 213 A.3d at 227-28.
Again, such is not the case here.7 Instead, “McWilliams
[Director of Commercial and Industrial Lending and Plaintiff’s
Division Leader at the bank’s Philadelphia Headquarters]
communicated to Pounds that Kunkle’s position was onsite [in
Philadelphia], and that the policy of the department was to have
an onsite workforce and that we want to have the people onsite
in that position.” (Pl.’s SUF ¶¶ 100, 129, 279, 281; see also
Pl.’s SUF ¶¶ 289 (during a May 2021 conversation about continued
remote working, Defendant Pounds advised Plaintiff Kunkle that
Republic Bank was “just not there.” Kunkle confirmed this in a
May 13, 2021, email to Pounds).
Regarding the plaintiff’s wrongful discharge claim under
the NJLAD, the court in Calabotta opined:
[B]ecause the job from which plaintiff was fired was
located at the Illinois office, the company arguably
would have reasonable expectations that all of its
supervisors and employees at that office, including
plaintiff, would be commonly governed by Illinois
employment laws . . . On the other hand, if plaintiff
can establish that the company’s decision to fire him
7 This Court further notes that in Calabotta, there were
“agreements drafted by [Defendant] reciting that New Jersey law
governs various other aspects of plaintiff’s work relationship.”
Id. at 228. Plaintiff herein cites to nothing in the record,
written or otherwise, that suggests the parties agreed during
the employment relationship to apply New Jersey law to that
relationship.
was made or centered in New Jersey, that would be a
counterweight on the New Jersey side of the scale.
Id. at 229.
Therefore, even applying the reasoning of Calabotta to
Plaintiff Kunkle’s case, the mere fact that she pursued and was
granted8 the ability to spend what amounts to a proportionately
minimal portion of her time working from her home in New Jersey,
does not entitle her to the protections of the NJLAD. As
referenced above, Plaintiff accepted and commenced employment at
Defendant Bank’s Philadelphia headquarters in 2005. When she
was promoted in 2007, the promotion was offered and accepted
through that same Philadelphia office. For the entirety of
Plaintiff’s employment - more than sixteen (16) years —
Plaintiff only worked with and reported to individuals in the
Philadelphia office. At no time did she ever accept employment
in the bank’s New Jersey office, nor did she ever work with or
for anyone from the bank in New Jersey. Up until the last three
months of Plaintiff’s employment when Plaintiff claimed
Defendant Pounds improperly denied her request to work remotely
on the basis of gender, all of the alleged incidents of
misconduct by Defendant Pounds occurred in the Philadelphia
office; i.e., the alleged yelling, desk-banging, silent-
8 Except for mandated office closures during the beginning of the
pandemic.
treatment, indifference towards Plaintiff’s pregnancy, ogling.
(Pl.’s SUF ¶¶ 10, 24, 28-29, 31-33; ECF No. 17-5 at 24, 36-37,
94; ECF No. 21-14 at 3-4; 21-21 at 2-4, 6, 8, 10; ECF No. 21-22
at 43; ECF No. 21-23 at 2; ECF No. 21-30 at 2-3.)
Again, it was Plaintiff who repeatedly sought to work from
her home in order to spend time with her daughter. (Pl.’s SUF
¶¶ 43, 52; ECF No. 17-4 at 45; ECF No. 17-5 at 12, 14, 16, 25,
27.) At the time of her last request in 2021, she was the only
person in her unit working 100% remote and of the 400+ employees
at the bank, only one person from another division was similarly
doing so. (Pl.’s SUF ¶¶ 276, 278; Defs.’ RSUF ¶¶ 276, 278.)
In view of the record as presented by the parties,
Plaintiff is precluded from seeking recovery under the NJLAD
because she was not “employed” in New Jersey. Accordingly,
Defendants’ motion for summary judgment on this basis shall be
granted.
CONCLUSION
For the reasons set forth above, the court will grant
Defendants’ Motion for Summary Judgment.
An appropriate Order will accompany this Opinion.
Dated: _7/5/23 ___ /s/ Noel L. Hillman _
Camden, New Jersey U.S.D.J.