Opinion

KUNKLE v. REPUBLIC BANK

Court
District Court, D. New Jersey
Filed
Jul 5, 2023
Cited by
0 cases
Authority
More cited than 25.6%

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.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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