WILLIAMS v. INSPIRA HEALTH NETWORK

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

KELLY WILLIAMS,

Civ. No. 1:22-cv-00007-NLH-EAP

Plaintiff,

OPINION

v.

INSPIRA HEALTH NETWORK,

Defendant.

APPEARANCES:

TIMOTHY STEVEN SEILER

ANDREW R. OLCESE

CHRISTA LEVKO

ARI R. KARPF

KARPF KARPF & CERUTTI PC

3331 STREET ROAD

TWO GREENWOOD SQUARE

SUITE 128

BENSALEM, PA 19020

Attorneys for Plaintiff

DOUGLAS DIAZ

DANIEL JOSEPH DEFIGLIO

ARCHER & GREINER, PC

ONE CENTENNIAL SQUARE

HADDONFIELD, NJ 08033-0968

Attorneys for Defendant

HILLMAN, District Judge

Before the Court is Defendant’s Motion for Summary Judgment

(ECF 40), Plaintiff’s Motion to File a Sur-Reply (ECF 47), and

Plaintiff’s Motion to Seal (ECF 50). For the reasons expressed

below, the Motion to File a Sur-Reply will be denied, the Motion

for Summary Judgment will be granted, and the Motion to Seal

will be denied without prejudice.

I. BACKGROUND

In September 2019, Plaintiff began working as a Licensed

Practical Nurse (“LPN”) at Inspira Medical Centers, Inc.

(“Inspira” or “Defendant”). (ECF 40-2 and 45-2 at ¶¶ 1). In

this position Plaintiff worked at Inspira urgent care centers,

including locations in Tomlin Station and Woolwich, New Jersey.

(Id. at ¶¶ 2).

On July 3, 2020, Plaintiff filed an internal complaint

against Dr. Andrew Pecora (“Pecora”) alleging sexual harassment.

(Id. at ¶¶ 9). First, Plaintiff advised her supervisor, Darian

Robbins, of the allegations over the telephone. (Id. at ¶¶ 13;

ECF 45-1 and 46-1 at ¶¶ 2). Robbins instructed Plaintiff to put

the complaint in writing, and that she would notify human

resources. (ECF 40-2 and 45-2 at ¶¶ 13). During this

conversation, Robbins was supportive of Plaintiff in making her

complaint and did not discourage her from reporting. (Id. at ¶¶

14).

In her written complaint, Plaintiff explained that Pecora

made “quite a few inappropriate sexual comments” to Plaintiff

about her “‘ass’ and how good it looked,” including that her

“‘ass’ looks good bent over the desk.” (Id. at ¶¶ 16–17). He

also touched her hair on both sides of her head and said “I like

your hair like this.” (Id.). Further, Plaintiff asked Pecora

to examine her knee, and he stated “this would feel better with

no clothes on.” (Id. at ¶¶ 18).

Robbins forwarded the complaint to Director Stephanie

Walker (“Stephanie Walker” or “Walker”) as well as Chief Medical

Officer Dr. Evelyn Balogun (“Balogun”) for them to address with

human resources. (Id. at ¶¶ 19). Balogun referred the matter

to Human Resources Director, Trevor Haverluk (“Haverluk”). (Id.

at ¶¶ 20). Within two or three days Haverluk met with Plaintiff

to gather more information. (Id. at ¶¶ 21). During her

conversation with Haverluk, Plaintiff also reported an incident

where Pecora showed off a picture of himself in a Halloween

costume that was “a reaper kind of . . . but when you moved the

weapon it was a big penis.” (ECF 45-1 and 46-1 at ¶¶ 29). She

also stated that she had heard Pecora make comments to Robbins

on multiple occasions about her appearance, which made Plaintiff

uncomfortable.1 (Id.). Haverluk later met with other potential

1 Plaintiff avers that Pecora’s harassing conduct towards women

employees dated back to November 2019. (ECF 45-1 at ¶ 8).

Plaintiff alleges that this included treating women poorly and

verbally abusing them, throwing a light at someone and hitting

her foot, talking about how he is a swinger and wants to leave

his wife so he can sleep with multiple women, and instances of

him being “touchy.” (Id. at ¶ 9). Defendant disputes that it

had knowledge of any of these allegations against Pecora. (ECF

46-1 at ¶¶ 8–9).

witnesses as well. (ECF 40-2 and 45-2 at ¶¶ 22). After

speaking with Plaintiff and other witnesses, Haverluk met with

Pecora, who Haverluk explains “said that he made comments, but

did not believe they were of the same nature that [Plaintiff]

was saying they were.” (Id. at ¶¶ 24–25).

Next, Defendant convened a panel to review the

investigation. (Id. at ¶¶ 26). Although Haverluk recommended

terminating Pecora, the panel decided to issue a written

warning. (Id. at ¶¶ 27; ECF 45-1 and 46-1 at ¶¶ 38). Plaintiff

requested that she not be required to work with Pecora moving

forward, which was granted. (ECF 40-2 and 45-2 at ¶¶ 35). Her

request to not work at the Tomlin Station urgent care location,

even when Pecora was not working, was not granted, although she

only worked at the Tomlin Station location on three occasions

following her July 3, 2020 complaint – on December 1, 2020;

March 29, 2021; and April 1, 2021. (Id. at ¶¶ 36, 49).

Plaintiff was scheduled to work with Pecora on December 14,

2020. (Id. at ¶¶ 45). Plaintiff informed Haverluk of this

scheduling, and Plaintiff was rescheduled so as to not work at

Tomlin Station on December 14, 2020. (Id. at ¶¶ 45, 47–48).

Pecora resigned from Inspira in December 2020. (Id. at ¶¶ 29).

Plaintiff did not work with Pecora any time following her July

3, 2020 complaint. (Id. at ¶¶ 38).

On December 12, 2020, Human Resources Director Stephanie

Walker advised Plaintiff that she would be temporarily assigned

to Inspira Medical Center – Mullica Hill, which is a hospital

location rather than an urgent care. (Id. at ¶¶ 51, 55).

Robbins testified that Walker made the determinations of who

would be subject to this temporary transfer. (Id. at ¶¶ 53).2

The additional need at the hospital was due to a COVID-19 surge.

(Id. at ¶¶ 55–56). Plaintiff was one of eight full-time LPNs

reassigned to the hospital. (Id. at ¶¶ 59). This included LPNs

with greater seniority than Plaintiff. (Id. at ¶¶ 61).

In response to her hospital assignment, Plaintiff advised

Walker that she “may be then going out on medical disability”

due to a heart and lung condition. (Id. at ¶¶ 62). On December

17, 2020, Plaintiff submitted a leave of absence request. (Id.

at ¶¶ 67). Defendant granted her leave request and granted FMLA

leave, with instruction to provide medical certification of her

condition. (Id. at ¶¶ 68). On December 30, 2020, Plaintiff’s

doctor provided the medical certification, stating that

“Plaintiff would be ‘incapacitated for a single continuous

period of time due to [her] medical condition’ from December 16,

2020 to March 10, 2021.” (Id. at ¶¶ 69–70 (alteration in

2 Plaintiff admits that Robbins testified that Walker made the

determination, but disputes this paragraph stating that

“Robbins’ credibility is questionable.” (ECF 45-2 at ¶ 53).

original)). Plaintiff avers that she submitted the leave

request only because of the hospital assignment, that her doctor

was recommending leave because of the hospital assignment, and

that her other accommodation request, to remain at urgent care,

was denied. (ECF 45-1 at ¶¶ 88–90). Defendant disputes that

Plaintiff’s doctor only recommended leave because of the

hospital setting, stating that this is “not noted on the

certification from the doctor provided.” (ECF 46-1 at ¶ 88).

Plaintiff returned from leave in March 2021. (ECF 40-2 and

45-2 at ¶¶ 72). On the first day that Plaintiff returned to

work, she was initially unable to log in to the computer system.

(Id. at ¶¶ 129). This was remedied the same day. (Id.). Also

upon her return from leave, Plaintiff learned that her

anticipated holiday schedule had been changed. (Id. at ¶¶ 124).

Following her return, there were two incidents involving

Plaintiff. (Id. at ¶¶ 72). On April 4, 2021, Plaintiff was

working at the Woolwich urgent care when a patient came in with

his daughter for an x-ray. (Id. at ¶¶ 73–74). His daughter

advised that he had a history of pulmonary embolism. (Id. at ¶¶

75). Plaintiff advised that Woolwich did not have x-ray

capabilities, and so he would be sent to Tomlin Station. (Id.

at ¶¶ 76). The patient left without being seen by a physician.

(Id. at ¶¶ 77). Later, the patient presented at Tomlin Station

and was “‘grey, in respiratory distress’ and was subsequently

admitted to the hospital with multiple pulmonary embolisms.”

(Id. at ¶¶ 78). Prior to this incident, on March 25, 2021,

Robbins sent an email to Plaintiff and others stating that:

“[u]nder no circumstance should any patient be

turned away for service without [Robbins] being

notified in real time. If anyone presents to a

facility for an emergency, or for a service you

do not feel we can provide we are not to tell the

patient what’s best for them or refer them to

another facility. The patient is still to be

registered and placed into an exam room for the

physician to make the decision on if the patient

needs further care at a hospital.”

(Id. at ¶¶ 79 (emphasis in original)). Plaintiff disputes the

characterization of this as a “safety incident” and alleges that

she tried to have the patient seen by a physician, and that what

happened with this patient is a common occurrence at Inspira.

(ECF 45-2 at ¶¶ 72, 77, 79).

On April 8, 2021, Plaintiff was working at the Woolwich

urgent care. (ECF 40-2 and 45-2 at ¶¶ 82). On this date there

was a patient in medical distress. (Id. at ¶¶ 85). The

attending physician, Dr. Diane McQuillen, instructed Plaintiff

to assist with this patient. (Id. at ¶¶ 86). Plaintiff

refused, stating that she was “on the phone with employee

health.” (Id.). Plaintiff asserts that she was experiencing

COVID symptoms, was instructed to report for PCR testing, and

pursuant to Defendant’s COVID protocols employees were not

permitted to continue working until cleared by Employee Health.

(Id. at ¶¶ 93; ECF 45-2 at ¶ 89). Plaintiff had received the

COVID-19 vaccine the day prior. (ECF 40-2 and 45-2 at ¶¶ 94).

The patient was later admitted to the hospital. (Id. at ¶¶ 87).

McQuillen sent an email to Robbins and Balogun the following

morning documenting the incident, and stating that Plaintiff

ignored her request to “get Oxygen for the patient.” (Id. at ¶¶

89).

After this second incident, Plaintiff was suspended pending

investigation into both incidents. (Id. at ¶¶ 102). Defendant

convened a panel. (Id. at ¶¶ 108). The panel decided to

terminate Plaintiff’s employment. (Id. at ¶¶ 112). Plaintiff

then resigned on April 22, 2021 in lieu of termination, in order

to receive the benefit of her accrued paid time off. (Id. at ¶¶

113).

On January 3, 2022, Plaintiff filed her initial Complaint,

and on August 2, 2022 she filed an Amended Complaint. (ECF 1,

ECF 26). In Plaintiff’s Amended Complaint she asserts the

following claims: Hostile Work Environment and Retaliation in

violation of the NJLAD (Count I); Disability Discrimination,

Retaliation, and Hostile Work Environment in violation of the

NJLAD (Count II); Retaliation and Interference in violation of

the Family and Medical Leave Act (“FMLA”) (Count III); Hostile

Work Environment and Retaliation in violation of Title VII

(Count IV); and Disability Discrimination, Relation, and Hostile

Work Environment in violation of the Americans with Disabilities

Act (“ADA”) (Count V).

On August 16, 2022, Defendant filed its Answer. (ECF 30).

On April 21, 2023 Defendant filed a Motion for Summary Judgment

(ECF 40). Plaintiff filed her Response under seal on June 6,

2023. (ECF 45). On June 20, 2023, Defendant filed its Reply.

(ECF 46). On June 27, 2023, Plaintiff filed a Motion to file a

Sur-Reply. (ECF 47). On July 5, 2023, Defendant filed a

Response to Plaintiff’s Motion to File a Sur-Reply (ECF 48), and

on July 12, 2023 Plaintiff filed her Reply. (ECF 49). On July

26, 2023, Plaintiff filed a Motion to Seal. (ECF 50). This

Court will address each of these pending motions in this

Opinion, addressing each in turn.

II. SUBJECT MATTER JURISDICTION

This Court has subject matter jurisdiction over

Plaintiff’s claims pursuant to 28 U.S.C. § 1331 and § 1367.

III. LEGAL STANDARD FOR MOTION TO FILE SUR-REPLY

Local Rule 7.1(d) controls the filing of sur-replies, and

provides that “[n]o sur-replies are permitted without permission

of the Judge to whom the case is assigned.” Loc. R. Civ. P.

7.1(d)(6).

The Court has complete discretion to permit sur-replies.

However, in making this determination Courts typically consider

whether the movant’s reply includes new arguments such that it

is prudent to permit the respondent an opportunity to address

the new content, or whether other exceptional circumstances

weigh in favor of permitting further briefing. See United

States ex rel. Silver v. Omnicare, Inc., No. 11-1326, 2020 WL

7022664, at *2 (D.N.J. Nov. 30, 2020). As a matter of judicial

economy, the Court may elect to deny further briefing where it

would be redundant. While the Court utilizes these guiding

principles, the Court has discretion to permit or deny

supplemental briefing even where no new information is

presented.

IV. DISCUSSION OF MOTION TO FILE SUR-REPLY

Plaintiff avers that, in its Reply, Defendant “made

numerous new arguments, including but not limited to submitting

a new certification of an improper witness, arguing

authentication issues pertaining to Plaintiff’s evidence, in

addition to other arguments.” (ECF 47 at ¶ 4). Defendant

responds that it did not make new arguments in its Reply, and

Plaintiff had the opportunity to present any of the points set

out in her proposed Sur-Reply in her Opposition Brief. (ECF 48

at 4).

Plaintiff avers that the following are new arguments

raised by Defendant in its Reply: (1) that Plaintiff’s

deposition testimony stating that she was retaliated against for

her complaint contradicts the position in her opposition that

continued objections to her work environment constitute a

protected activity; (2) that Plaintiff’s “return date from leave

is not what is used for proximity of timing purposes” for her

ADA and FMLA retaliation claims; (3) that the seniority of staff

considered for transfer to the hospital did not include per diem

workers, workers presently on a leave of absence, or former

employees, which Defendant supported by a certification of an

individual, Stephanie Walker; (4) that the circumstances of

Plaintiff’s former co-worker who turned patients away was

different than Plaintiff’s; and (5) that assignment to the

hospital was part of Plaintiff’s essential job function. (ECF

47-1 at 5–10). This Court finds that Defendant did not present

new arguments in its Reply necessitating further briefing.

First, in its Motion Brief Defendant referred to the date

of Plaintiff’s complaint on July 3, 2020 as the date of her

alleged protected activity, and set out its explanation of the

timeline of the alleged retaliation as the acts relate to that

date. (ECF 40-1 at 28). Plaintiff averred in her Opposition

Brief that the allegedly retaliatory acts occurred shortly after

her continued objections to her hostile work environment,

including an allegation that her termination was “within just

two weeks of her most recent objection to the hostile work

environment.” (ECF 45 at 29 (emphasis in original)). In its

Reply, Defendant responded by pointing to Plaintiff’s deposition

testimony in support of its position that the alleged protected

activity was the complaint, not later emails and objections.

(ECF 46 at 10). Further Defendant argues that the objection to

working at a specific location is not a protected activity.

(Id. at 11). Defendant does not present a new argument here, it

merely responds to Plaintiff’s Opposition by reiterating its

position and explaining why it disagrees with Plaintiff’s

counter. Plaintiff’s position on this point is clear from her

Opposition Brief, and no further briefing is needed.

Second, in its Motion Brief Defendant argued that

Plaintiff cannot establish causation between her termination and

her FMLA leave because the termination was more than four months

after her leave request. (ECF 40-1 at 33). In her Opposition,

Plaintiff responded that she can establish causation because the

termination was just one month after her return from FMLA leave.

(ECF 45 at 28–29). Defendant reiterates its position that there

is no causation because of the amount of time between her

request for leave and the termination. (ECF 46 at 11). Again,

this is not a new argument. Plaintiff had an opportunity in her

Opposition Brief to explain her position that the relevant

timeline is actually when she returned from leave.

Third, in its Motion Brief Defendant explained that the

reason for Plaintiff’s transfer to the hospital was need based

on a COVID-19 surge, and that “seven other full time LPN’s were

also transferred.” (ECFR 40-1 at 19, 30–31, 35). Although

Defendant’s Motion brief did not set out its criteria for

selecting who would be transferred, it noted in its Statement of

Material Facts that Plaintiff was one of eight full-time LPNs

reassigned, including three with more seniority than Plaintiff.

(ECF 49-2 at ¶¶ 59–61). The Statement of Material Facts also

sets out that the reassignments were determined by Stephanie

Walker, the Human Resources Director. (Id. at ¶ 53). Plaintiff

responded in her Opposition Brief that she was selected over

less senior employees. (ECF 45 at 28). Thus, Defendant

responded by explaining the seniority and transfer criteria --

that transfer only included full-time employees, and that the

list of less senior staff that Plaintiff pointed to included

employees on a leave of absence and former employees.

Again, Defendant did not present a new argument in its

Reply, but rather responded to a detail Plaintiff focused on.

To the extent the record is unclear about the seniority of

certain staff members that were or were not transferred, this

may present a factual question, but it does not necessitate

further briefing.

As part of Plaintiff’s analysis that the information about

seniority presents a new argument Plaintiff asserts that

Defendant should not be permitted to “insert brand new evidence

for the first time through a certification by Walker, an

individual never previously incorporated in Defendant’s Rule 26

disclosures.” (ECF 49 at 5). Plaintiff argues that the

information supported by Walker’s certification “could not have

been addressed by Plaintiff prior to Defendant’s reply brief

because it did not exist either in Defendant’s initial brief or

discovery.” (Id.). Defendant explains that the certification

was submitted in direct response to Plaintiff misinterpreting an

exhibit attached to her Opposition, and notes that there is a

certification from Walker attached to the Motion Brief as well

in which she explains that only full-time staff were subject to

the transfer and thus this is not new information presented in

the Reply. (ECF 49 at 11).

The question of whether the Court may consider information

presented in a certification rather than information within the

record is distinct from the question of whether there is new

information in the Reply necessitating a Sur-Reply. The

information here is not new as it is either in the certification

to the Motion Brief or is represented within the exhibit

Plaintiff relies on in her Opposition. To the extent that there

is a dispute as to what the record shows, this may weigh against

summary judgment if such information is material. This Court

will address this issue if necessary within its summary judgment

analysis below.

Fourth, in Plaintiff’s Opposition she argued that

Defendant’s statement that Plaintiff was fired in part because

of an incident where she turned away a patient without being

seen by a doctor is pretext because another employee received a

lesser disciplinary action for this same conduct. (ECF 45 at

29–30). Defendant responded in its Reply that Plaintiff and

this other employee were not similarly situated, stating that

their conduct was different and that unlike Plaintiff who was an

LPN the other employee was a licensed technician. (ECF 46 at

14). This is not a new argument; rather, it is a direct reply

to a statement Plaintiff made in her Opposition. Again, to the

extent there is a dispute here, it may present a factual

question, but does not require further briefing.

Fifth, Defendant explicitly stated in a footnote in its

Motion Brief that “[t]o the extent Plaintiff is contending she

was unable to work in the hospital or other locations, she was

then unable to perform the essential functions of her job, which

included the ability to work at other locations based on

staffing needs.” (ECF 40-1 at 34 fn.7). It is plainly not a

new argument raised in Defendant’s Reply.

This Court concludes that Defendant did not raise new

arguments in its Reply so as to warrant a Sur-Reply. This Court

will therefore deny Plaintiff’s Motion for a Sur-Reply, and will

proceed to analyze the Motion for Summary Judgment. This Court

will not consider the arguments presented in the Sur-Reply.

V. LEGAL STANDARD FOR MOTION FOR SUMMARY JUDGMENT

Summary judgment is appropriate where the Court is

satisfied that the materials in the record, including

depositions, documents, electronically stored information,

affidavits or declarations, stipulations, admissions, or

interrogatory answers, demonstrate that there is no genuine

issue as to any material fact and that given the undisputed

facts the moving party is entitled to a judgment as a matter of

law. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986);

Fed. R. Civ. P. 56(a).

A dispute about a material fact is “genuine” “if the

evidence is such that a reasonable jury could return a verdict

for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986). A fact is “material” if, under the

governing substantive law, a disputed fact may affect the

outcome of the suit. Id. In considering a motion for summary

judgment, a district court may not make credibility

determinations or engage in any weighing of the evidence. Id.

at 255. Instead, the non-moving party’s evidence “is to be

believed and all justifiable inferences are to be drawn in his

favor.” Id.

Initially, the moving party has the burden of demonstrating

the absence of a genuine issue of material fact. Celotex, 477

U.S. at 323. Once the moving party has met this burden, the

burden shifts and the nonmoving party must identify specific

facts showing that there is a genuine issue for trial. Id. 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 256-57. A party opposing summary judgment

must do more than just rest upon mere allegations, general

denials, or vague statements. Saldana v. Kmart Corp., 260 F.3d

228, 232 (3d Cir. 2001).

VI. DISCUSSION OF MOTION FOR SUMMARY JUDGMENT

Defendant moves for summary judgment on each of Plaintiff’s

claims. First, we address her hostile work environment claims,

starting with her sex-based claim and then proceeding to her

disability-based claim. Next, we discuss her failure to

accommodate claim under the ADA. Then, we assess her FMLA

interference claim. Finally, we address her multiple

retaliation claims, premised on (1) Title VII and the NJLAD, (2)

the ADA and the NJLAD, and (3) the FMLA.

A. Sex-Based Hostile Work Environment

For her claim of a sex-based hostile work environment under

the NJLAD and Title VII, Plaintiff must show that: (1) she

suffered intentional discrimination because of her sex; (2) the

discrimination was severe or pervasive; (3) the discrimination

detrimentally affected the plaintiff; (4) the discrimination

would detrimentally affect a reasonable person in like

circumstances; and (5) the existence of respondeat superior

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

(3d Cir. 2013) (citing Jensen v. Potter, 435 F.3d 444, 449 (3d

Cir. 2006)). The first four elements establish a hostile work

environment, and the fifth element establishes employer

liability. Hudson v. Procter & Gamble Paper Prods. Corp., 568

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

Defendant argues that Plaintiff has not demonstrated

severe or pervasive conduct, nor has she established respondeat

superior liability.

i. Severe or Pervasive

To determine if a work environment is hostile or abusive,

courts look at the totality of the circumstances, which includes

“the frequency of the discriminatory conduct; its severity;

whether it is physically threatening or humiliating, or a mere

offensive utterance; and whether it unreasonably interferes with

an employee’s work performance. Mandel, 706 F.3d at 168. The

essential character of a hostile work environment is a work

place that is “permeated with discriminatory intimidation,

ridicule, and insult, that is sufficiently severe or pervasive

to alter the conditions of the victim’s employment and create an

abusive work environment.’” McKinnon v. Gonzales, 642 F.Supp.2d

410, 421 (D.N.J. 2009) (quoting Nat’l R.R. Passenger Corp. v.

Morgan, 536 U.S. 101, 116 (2002)) (emphasis in original); see

also Fitzgerald v. Shore Memorial Hosp., 92 F.Supp.3d 214, 240

(D.N.J. 2015).

“The correct standard is ‘severe or pervasive.’”

Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017)

(emphasis in original). As such, “‘severity’ and

‘pervasiveness’ are alternative possibilities: some harassment

may be severe enough to contaminate an environment even if not

pervasive; other, less objectionable, conduct will contaminate

the workplace only if it is pervasive.” Id. This analysis

“requires looking at 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.’” Id. (quoting

Harris, 510 U.S. 17, 23 (1993)).

“[B]oth the Supreme Court and the Third Circuit have been

clear that ‘offhand comments, and isolated incidents (unless

extremely serious)’ are not sufficient” to establish a hostile

work environment. Nuness v. Simon & Schuster, Inc., 221

F.Supp.3d 596, 601 (D.N.J. 2016) (quoting Faragher v. City of

Boca Raton, 524 U.S. 775, 778 (1998)). Neither Title VII nor

the NJLAD are intended to be a “general civility code” for

workplace conduct. Id.

Defendant argues that “[s]ummary judgment on Plaintiff’s

NJLAD and Title VII hostile work environment claims is proper

because Plaintiff has failed to show the conduct at issue –

isolated to the boorish behavior of a single physician on a

single day nine months before her termination – was objectively

pervasive or severe so as to alter the conditions of her

employment.” (ECF 40-1 at 10). Defendant contends that “the

incidents of which Plaintiff complains were not frequent and

instead all occurred on only one day” and thus the conduct is

not pervasive. (ECF 40-1 at 15). Defendant also avers that the

conduct alleged was “not severe and instead amount[s] to boorish

behavior falling well short of the type of behavior required for

a hostile work environment.” (ECF 40-1 at 16).

Plaintiff points to the numerous incidents that occurred

throughout that day, including Pecora (1) commenting to

Plaintiff that “he missed looking at [her] ‘ass’”; (2)

commenting while examining her knee that “this would feel better

with no clothes on”; (3) running his fingers through Plaintiff’s

hair and commenting that he likes her hair “like this”; (4)

making additional inappropriate comments about Plaintiff’s

“‘ass’ and how good it looked” throughout the day, including

stating “your ass looks good bent over the desk.” (ECF 45 at

18). She also avers that Pecora’s history with “every other

female working at the Tomlin location . . . is highly probative

of the nature of the working environment.” (Id. at 16).

This Court does not take these allegations lightly, and

does not condone the conduct of Pecora. However, the bar in

Title VII cases is high, in order “to ensure that Title VII does

not become a ‘general civility code.’” Faragher v. City of Boca

Raton, 524 U.S. 775, 788 (1998). Here, even when viewing the

facts in the light most favorable to Plaintiff as offensive as

they are, the allegations do not rise to the level of severe or

pervasive as a matter of law.

First, this Court’s looks to the severity of the conduct.

As Plaintiff points out, Courts have found that a single act of

touching can be severe enough to satisfy the severe and

pervasive prong. However, the circumstances of the touching and

the totality of the allegations inform whether the severe or

pervasive prong is met. For example, a single instance of

sexual assault has been found sufficiently severe to establish

this prong of the hostile work environment analysis. See

Vandegrift v. City of Philadelphia, 228 F. Supp. 3d 464, 485

(E.D. Pa. 2017) (“Sexual assault is the most severe form of

harassment, and severe harassment is actionable under a hostile

work environment claim.”). Similarly, a judge of this Court has

found that this prong was established where a plaintiff was

forced into a small room, not permitted to leave, and grabbed on

her breast. McClement v. Port Auth. Trans-Hudson Corp., No. 11-

06839, 2022 WL 111047, at *7 (D.N.J. Jan. 12, 2022) (finding

that a reasonable juror could find the conduct sufficiently

severe to create a hostile work environment where there was “a

purported sexual touching [of plaintiff’s breast] and an implied

physical threat, blocking Plaintiff’s ability to leave the room,

and preventing her from calling for help”).

On the other hand, courts have found physical acts that

involved touching a plaintiff’s breasts, touching a plaintiff’s

buttocks, and kissing a plaintiff insufficient to establish the

severe or pervasive prong. See, e.g., Saidu-Kamara v. Parkway

Corp., 155 F. Supp. 2d 436, 439-440 (E.D. Pa. 2001) (finding

defendant, over an 18-month period, touching plaintiff’s breast,

propositioning her for sex, offering her money to go out with

him, removing a bottle of wine from his pants, asking her to

join him later at a local hotel for a “good time,” and again

touching her breasts and buttocks insufficient); Bonora v. UGI

Utilities, Inc., No. 99-5539, 2000 WL 1539077, at *4 (E.D. Pa.

Oct. 18, 2000) (finding defendant touching plaintiff’s hand,

brushing his buttocks against hers, and touching her waist

insufficient); McGraw v. Wyeth-Ayerst Lab., Inc., No. 96-5780,

1997 WL 799437, at *6 (E.D. Pa. Dec. 30, 1997) (finding

defendant kissing plaintiff, touching her face, asking her out

on dates, inquiring about her marriage insufficient). The

touching of her hair Plaintiff has alleged is less severe than

these instances that courts have also found insufficient.

Looking at her allegations together, Plaintiff has not

established severe conduct as the majority of her allegations

set out comments that Pecora made to Plaintiff about her

appearance, one sexually suggestive comment that he would prefer

to examine her without clothes, and one instance of touching

that was limited to touching her hair. (See ECF 40-2 and 45-2

at ¶¶ 16); See Carroll v. Acme Truck Line, Inc., 992 F. Supp. 2d

512, 526 (W.D. Pa. 2014) (finding Plaintiff had not established

severe or pervasive conduct where Plaintiff alleged a co-worker

asked Plaintiff to sit on his lap and hugged her, called her

“buttercup,” asked Plaintiff to go on a weekend trip and out to

dinner with him, and on one occasion Plaintiff walked in on him

while he was sleeping “completely exposed” and he “‘looked her

up and down’ and made comments about her clothing . . . which

[he] admitted in his deposition may have been made in a sexual

manner.”). Again, although highly inappropriate and offensive,

[t]he mere utterance of an epithet, joke, or inappropriate taunt

that may cause offense does not sufficiently affect the

conditions of employment to implicate Title VII liability.”

Brown-Baumbach v. B&B Auto, Inc., 437 F. App’x 129, 133 (3d Cir.

2011) (holding that “not every sexual comment, action, or joke

creates a hostile work environment”).

Next, the incidents alleged are not pervasive, where there

are only a handful of allegations and they occurred primarily on

one single day. See Henderson v. United Parcel Serv., No. 17-

13059, 2020 WL 1983481, at *8 (D.N.J. Apr. 27, 2020) (finding

“five incidents over the course of at least 26 months” not

pervasive); Bacone v. Phila. Hous. Auth., 112 F. App’x 127, 129

(3d Cir. 2004) (“The behavior at issue involved no more than

four incidents during the span of two weeks, and though they

were offensive, they are not pervasive enough to rise to the

level of a Title VII violation.”); Tavares v. Builders

FirstSource Ne. Grp., Inc., No. 21-02964, 2023 WL 4248770, at *6

(D.N.J. June 29, 2023) (“Within the parameters set forth by New

Jersey courts, the allegations of sexually harassing conduct in

this case were not frequent, since Plaintiff alleges only three

incidents occurring over the course of at [sic] six months.”).

It is undisputed that Plaintiff had worked at Inspira for

approximately nine (9) months at the time of the alleged

harassment. (See ECF 40-2 and 45-2 at ¶¶ 1, 9). Over that

period, Plaintiff has only pointed to one other occasion where

Pecora made any other sexual reference – pointing to an instance

where he showed a picture of himself in a Halloween costume,

dressed as a reaper “but when you moved the weapon, it was a big

penis.” (ECF 45-1 and 46-1 at ¶¶ 29). She also noted that she

had heard Pecora make comments about her supervisor Robbins’

appearance. (Id.). Each of these isolated incidents, (See ECF

40-2 and 45-2 at ¶¶ 16), even when viewed together, fail to

establish pervasive conduct.

There is no doubt that Pecora’s conduct was inappropriate;

however, without a continued pattern of this activity it is not

pervasive enough so as to create a hostile environment. If

Percora’s conduct had continued the outcome here might well be

different. See Galarza v. Best W. Plus - Genetti Hotel & Conf.

Ctr., No. 19-0400, 2020 WL 6107046, at *5 (M.D. Pa. Oct. 15,

2020) (finding the conduct severe or pervasive where “Plaintiff

claims that she was subjected to a barrage of lewd comments and

gestures on a daily basis for the five months that she worked

for the Defendant.”). That said, this Court notes that

Defendant investigated Plaintiff’s complaint and Plaintiff did

not work with Pecora after her complaint. (See ECF 40-2 and 45-

2 at ¶¶ 38). To fulfill the severe or pervasive prong, “the

conduct must rise to a level of ‘alter[ing] the conditions of

the victim’s employment and creat[ing] an abusive working

environment.’” Logan v. Millstone Manor LLC, No. 20-14433, 2022

WL 1720172, at *5 (D.N.J. May 27, 2022) (quoting v. Toys R Us,

Inc., 626 A.2d 445, 455-56 (N.J. 1993)). Under the facts here,

with the conduct mostly limited to one day, and with Plaintiff

not working with Pecora again after his conduct was reported to

management, Plaintiff has not pointed to severe or pervasive

conduct that altered her conditions of employment.

Plaintiff further cites to a history of conduct from

Pecora; however, Plaintiff does not claim that she was present

for these other alleged incidents. (ECF 45-1 at ¶¶ 8–9). While

conduct directed to a third party may support allegations of a

severe or pervasive hostile environment, the additional conduct

Plaintiff points to here does not support her claim where she

does not state that she witnessed nor had firsthand knowledge of

the conduct. See Godfrey v. Princeton Theological Seminary, 952

A.2d 1034, 1048 (N.J. 2008) (“To satisfy the severe-or-pervasive

element of a hostile work environment claim, a plaintiff must

marshal evidence of bad conduct of which she has firsthand

knowledge.”); Ventura v. Montclair State Univ., No. CIV.A. 08-

5792 SRC, 2011 WL 6339656, at *10 (D.N.J. Dec. 19, 2011) (“A

hostile work environment claim cannot be based upon statements

that are made outside the presence of the plaintiff.”).

Although this Court’s determination that the conduct

alleged does not meet the severe or pervasive requirement is

enough to require dismissal of this claim, the Court will also

address the question of vicarious liability.

ii. Vicarious Liability

Generally, an employer is vicariously liable for the

conduct of a supervisor where the supervisor acted within the

scope of his or her employment. Wilson v. New Jersey, No. 16-

7915, 2019 WL 5485395, at *11 (D.N.J. Oct. 25, 2019). However,

it is undisputed here that Pecora was not Plaintiff’s

supervisor. (ECF 40-2 and 45-2 at ¶¶ 10–12).

“[A]n employer is liable for a co-worker’s harassing

conduct only if ‘management-level employees knew, or in the

exercise of reasonable care should have known, about the

campaign of harassment.’” Nuness, 221 F.Supp.3d at 603-04

(quoting Herman v. Coastal Corp., 791 A.2d 238, 252 (N.J. Super.

Ct. App. Div. 2002)). In addition, “the plaintiff must show

that the employer failed to provide a reasonable avenue for

complaint or was aware of the alleged harassment and failed to

take appropriate remedial action.” Id.

Defendant explains that it has an effective harassment

policy and anti-harassment training. (ECF 40-1 at 20).

Defendant also advises that Plaintiff was able to file a

complaint about the harassment, resulting in an investigation

which effectively barred Pecora from ever working with Plaintiff

again. (Id. at 21).

Plaintiff responds that “Defendant was well aware of the

inappropriate conduct by Pecora for nearly a year before Ms.

Williams’ complaints of harassment, failing entirely to take

adequate action to remedy the situation, but also that they

failed to take appropriate action following Ms. Williams’

complaints, continuing to require her to work in fear at the

same location as Pecora who was never appropriately

reprimanded.” (ECF 45 at 9) (emphasis in original). Plaintiff

expands that despite a recommendation of termination from one

human resources professional, a “significantly less severe

action” was taken. (Id. at 12) (emphasis in original).

Specifically, “Defendant simply issued Pecora a letter, not on

Defendant’s formal disciplinary action forms” providing him with

a warning. (Id. at 13). Plaintiff argues that this is an

“unreasonable response.” (Id.). Plaintiff further asserts that

she was pressured to retract her complaints and change her

story. (Id.).

Plaintiff also argues that Defendant’s failure to move her

to “one of the many other locations” despite her fear of running

into Pecora was an improper response that caused her “extreme

anxiety and physical illness.” (Id. at 14). Plaintiff advises

that she was required to work at the Tomlin location on December

1, 2020. (Id. at 21). She was scheduled to work at the Tomlin

Station location again on December 14, 2020, when Pecora would

also be working. (Id.). Plaintiff complained about this

assignment, and was not actually required to work at the Tomlin

Station location on that day. (Id.). She was required to work

at the Tomlin location again after her leave on March 29, 2021

and April 1, 2021. (Id. at 22).

Defendant counters that Plaintiff was staffed to work at

the Tomlin location “on only three occasions following her July

3, 2020 complaint, which Plaintiff does not dispute was because

of staffing needs.” (ECF 46 at 9) (citation omitted). In

addition, Defendant notes that Plaintiff’s disagreement with the

remedial action taken against Pecora does not render it

inappropriate or unreasonable. (Id.). Defendant further

advises that Plaintiff “was not subject to any harassment by

Pecora after Inspira took action.” (Id. at 9–10). In addition,

while Defendant concedes that there had been prior complaints

against Pecora “the vast majority of prior complaints Plaintiff

relies upon were of a non-sexual nature with only one employee

mentioning anything sexually related.” (Id.) (emphasis in

original). Moreover, Defendant “investigated the complaints and

counseled Pecora.” (Id.).

Even if the conduct Plaintiff alleges were sufficient to

establish the severe or pervasive standard, she has not

demonstrated that Defendant is vicariously liable. It is

undisputed that Defendant took immediate action in response to

her complaint. (ECF 40-2 and 45-2 at ¶¶ 19–20). Human

Resources Director Haverluck interviewed Plaintiff, interviewed

witnesses, and interviewed Pecora. (Id. at ¶¶ 21–24). Then a

panel of Inspira staff convened to discuss the conduct and

repercussions, deciding to provide Pecora with a written

warning. (Id. at ¶¶ 26–27). Further, Defendant heeded

Plaintiff’s request to no longer work with Pecora, and Plaintiff

never worked with Pecora again. (Id. at ¶¶ 35).

While her request to not work at the Tomlin Station

location even when Pecora was not working was denied, this does

not render Defendant’s response unreasonable. In addition, this

Court notes that Plaintiff only worked at Tomlin Station three

times after her complaint against Pecora, two of which were

after he was no longer employed at Inspira. (Id. at ¶¶ 36, 38,

49). On one instance where Plaintiff was scheduled with Pecora

and brought this to her supervisor’s attention, the schedule was

remedied and she was not required to work with Pecora. (Id. at

¶¶ 48).

While Plaintiff is dissatisfied with the repercussions

imposed on Pecora, asserting that the consequences should have

been more severe, Defendant’s response is sufficient to

demonstrate that they had a harassment policy that is more than

mere words. Defendant’s response ended the harassment, as

Plaintiff never worked with Pecora again. See Nuness, 221 F.

Supp. at 604 (“The employer cannot be held liable when it

responds in a manner which stops the harassment.”).

Plaintiff makes one allegation that gives this Court pause

in determining whether there may be vicarious liability, stating

that she was pressured to retract her complaint. (ECF 45 at

13). In support of this allegation, Plaintiff points to an

email that she sent to Haverluk expressing frustration with

having to tell her story over and over. (ECF 45-1 at 42; ECF

45-22 at 2). That said, the email does not include any

suggestion that she was being pressured to retract her

complaint, nor does her Statement of Facts allege such pressure.

(Id.). This allegation appears only in argument within the

briefing. Thus, Plaintiff has not pointed to the record in

support of this allegation. As such, this Court does not view

this as a disputed fact requiring denial of summary judgment on

this claim.

As Plaintiff had not carried her burden in demonstrating

severe or pervasive conduct nor demonstrating vicarious

liability should apply, her claim for sex-based hostile work

environment under Title VII and the NJLAD will be dismissed.

B. Disability-Based Hostile Work Environment

Plaintiff asserts disability-based hostile work environment

claims arising from the ADA and NJLAD. With respect to the ADA

claim, the Third Circuit has held that a disability-based

harassment claim requires Plaintiff demonstrate that:

(1) [plaintiff] is a qualified individual

with a disability under the ADA; (2) she was

subject to unwelcome harassment; (3) the

harassment was based on her disability or a

request for an accommodation; (4) the

harassment was sufficiently severe or

pervasive to alter the conditions of her

employment and to create an abusive working

environment; and (5) that [defendant] knew

or should have known of the harassment and

failed to take prompt effective remedial

action.

Vanhook v. Cooper Health Sys., No. 19-14864, 2021 WL 2186989, at

*8 (D.N.J. May 28, 2021), aff’d, No. 21-2213, 2022 WL 990220 (3d

Cir. Mar. 31, 2022) (quoting Walton v. Mental Health Ass’n. of

Se. Pa., 168 F.3d 661, 667 (3d Cir. 1999)) (alteration in

original).

Similarly, a hostile work environment claim under the

NJLAD requires a plaintiff to prove the “complained-of conduct

(1) would not have occurred but for the employee’s gender; and

it was (2) severe or pervasive enough to make a (3) reasonable

woman believe that (4) the conditions of employment are altered

and the working environment is hostile or abusive.” Lehmann v.

Toys R Us, Inc., 626 A.2d 445, 454 (N.J. 1993) (emphasis in

original). In addressing hostile work environment claims under

the NJLAD, “courts must consider the cumulative effect of the

various incidents.” Id. at 455.

Defendant asserts none of the allegations Plaintiff has

raised related to her claim of disability-based hostile work

environment were based on her alleged disability, and moreover

they were not severe or pervasive. (ECF 40-1 at 22–23).

Defendant summarizes that “the acts which form the basis

of her disability-based hostile work environment claim were: (1)

Inspira switching her holiday schedule when she returned from

her FMLA leave of absence on March 13, 2021; (2) not having her

user name and password credentials prepared when she returned

from her leave; and (3) Dr. McQuillen “stomping off” when

Plaintiff told her “‘I wouldn’t get off the phone,’ when

McQuillen asked that she do so to help her with a patient in

respiratory distress.” (Id. at 23).

Defendant explains that the holiday schedule was changed

because it is “part of Inspira’s practice to rotate schedules

each calendar year.” (Id.). Next, “[t]he user name and

password matter was a temporary issue that was corrected on the

same day Plaintiff returned to work.” (Id.). Finally,

McQuillen “stomp[ed] off” “when Plaintiff refused her directive

to hang up the phone to help her with a patient who needed

oxygen.” (Id.). In further support, Defendant notes that

Plaintiff testified that she is “not aware of any comments ever

being made related to her disability.” (Id. at 24).

Arguing that this conduct does not rise to the level of

severe or pervasive even if it were based on Plaintiff’s alleged

disability, Defendant argues that these “are all minor and

isolated incidents.” (Id.).

Plaintiff adds to these allegations stating that she was

further “treated in a negative manner after her return” from

FMLA leave. (ECF 45 at 24). She states that management did not

acknowledge her and required a scheduled meeting in order to

speak with her. (Id.). She alleges that the feeling was

palpable and she felt spoken down to. (Id.).

Plaintiff has pointed to three isolated incidents with

minimal, if any, effect on the work environment. First, the

change in holiday schedule does not have any bearing on the work

environment. Second, Plaintiff’s inability to log into the

computer also did not create a hostile work environment. It was

also remedied within the same day. (ECF 40-2 and 45-2 at ¶¶

129). The third allegation is the only one that has any element

that could possibly demonstrate a hostile work environment;

however, a single incident of a doctor “stomping” away falls

well below the severe or pervasive standard. These allegations

alone, and in combination, do not rise to a level of severity to

establish a claim. See Wright v. Providence Care Ctr., LLC, 822

F. App’x 85, 97 (3d Cir. 2020) (finding none of the cited

incidents as “extremely serious” where Plaintiff pointed to

“[o]ccurrences such as being ignored, told once to ‘shut up,’

hearing an offhand comment about collecting disability, being

temporarily pulled to work on another floor at the facility,

receiving a marginally negative performance review without

cause, and scheduling annoyances”); Woods v. AstraZeneca

Pharms., L.P., No. 19-00230, 2023 WL 2393649, at *24 (M.D. Pa.

Mar. 7, 2023) (finding the allegations were not severe and

pervasive where Plaintiff’s supervisor stated to her on multiple

occasions that she would not last at the job due to her medical

conditions, told Plaintiff they hired additional employees in

case she got sick again, questioned her productivity due to her

medical absences, and exhibited verbal disdain about her use of

FMLA).

Moreover, Plaintiff’s additional allegations of generally

feeling she was treated “negatively” and “spoken down to” are

insufficient to support her hostile work environment claim where

Plaintiff does not point to a single example. Her allegations

here are also not sufficiently pervasive, as Plaintiff has

pointed to only three isolated incidents. See Wright v.

Providence Care Ctr., LLC, 822 F. App’x 85, 97 (3d Cir. 2020)

(finding a “handful of incidents” over a series of months not

pervasive).

While this Court questions whether any of these alleged

acts have any relation to Plaintiff’s alleged disability, we

need not make this determination, as these facts do not rise to

the level of severe or pervasive conduct. As Plaintiff has not

demonstrated severe or pervasive disability-based harassment,

this claim will be dismissed.

C. Failure to Accommodate

Plaintiff alleges that Defendant failed to accommodate her

disability in violation of the ADA and NJLAD. Under the ADA, an

employer discriminates against a qualified individual with a

disability when the employer does “not mak[e] reasonable

accommodations to the known physical or mental limitations of

the individual unless the [employer] can demonstrate that the

accommodation would impose an undue hardship on the operation of

the business of the [employer].” Taylor v. Phoenixville School

Dist., 184 F.3d 296, 306 (3d Cir. 1999) (quoting 42 U.S.C. §

12112(b)(5)(A)) (alterations in original). Similarly, “[u]nder

the NJLAD, an employer must ‘make a reasonable accommodation to

the limitations of an employee . . . who is a person with a

disability, unless the employer can demonstrate that the

accommodation would impose an undue hardship.’” Gavin v.

Haworth, Inc., 2016 WL 7325474 at *8 (D.N.J. 2016) (citing N.J.

Admin. Code. Tit. 13, § 13–2.5; Fitzgerald v. Shore Memorial

Hosp., 92 F.Supp.3d 214, 237 (D.N.J. 2015)).

To state an ADA claim for a failure to accommodate, a

plaintiff must show: “(1) she is disabled, (2) she is qualified,

and (3) her employer (i) refused to provide her with a proposed

reasonable accommodation, or (ii) failed to engage in an

interactive process after she requested an accommodation, though

a reasonable accommodation was possible.” Solomon v. Sch. Dist.

of Phila., 882 F. Supp. 2d 766, 779 (E.D. Pa. 2012). In

response, “[t]he employer must then show that the proposed

accommodation was not reasonable or would have caused it undue

hardship, or that the employer proposed a reasonable

accommodation that the plaintiff rejected.” Id. Similarly, to

state a claim under the NJLAD for failure to accommodate, a

plaintiff “must show that he or she (1) had a disability; (2)

was otherwise qualified to participate in the activity or

program at issue; and (3) was denied the benefits of the program

or otherwise discriminated against because of his or her

disability.” Wojtkowiak v. New Jersey Motor Vehicle Com’n, 106

A.3d 519, 527 (N.J. Super. App. Div. 2015). Under the NJLAD,

“[t]he claimant must also show ‘whether the accommodation was

reasonable.’” Id.

Defendant explains that when Plaintiff provided

information from her doctor to demonstrate that she could not

work at the hospital, the doctor’s certification stated that

“Plaintiff could not work at all for a three month period.”

(ECF 40-1 at 37–38) (emphasis in original). Therefore,

Plaintiff’s claim that an accommodation permitting her to work

in a non-hospital location would have permitted her to work is

not supported by the doctor’s certification and Defendant could

not disregard the doctor’s certification. (Id. at 38). In

addition, Defendant avers that it did provide Plaintiff with a

reasonable accommodation by way of a leave of absence. (Id.).

Plaintiff states that when she was advised that she would

be transferred to the hospital, she immediately responded that

because of her heath conditions she would be unable to work in a

hospital environment. (ECF 45 at 34). She claims that she was

initially told that if her health conditions meant she needed to

stay in an urgent care placement that this accommodation would

be made. (Id.). Plaintiff asserts this would have been a

sufficient accommodation. (Id.). Plaintiff avers that this

accommodation was never made and she was not provided with an

explanation as to why. (Id. at 35). Because the accommodation

was not made, she had to take FMLA leave. (Id.).

Defendant responds that Plaintiff’s doctor’s certification

made clear that she could not work in any capacity. (ECF 46 at

19). Defendant advises that it did engage in the interactive

process, providing Plaintiff with forms for her medical

documentation and granting her leave of absence request.” (Id.

at 20). Defendant advises that “[t]here were no other

accommodations to discuss because Plaintiff’s doctor stated she

was ‘incapacitated’ for several months.” (Id.).

The timeline of Plaintiff’s conversation seeking an

accommodation to work in certain facilities, her leave of

absence request, and her doctor’s certification is murky and

there are disputed facts related to this process; however, the

disputed facts are immaterial. The disputed facts are

immaterial because it is undisputed that Defendant did provide

Plaintiff with a reasonable accommodation.

Although “‘an employer who fails to engage in the

interactive process runs a serious risk that it will erroneously

overlook an opportunity to accommodate a statutorily disabled

employee, and thereby violate the ADA,’ . . . failure to engage

in the interactive process, in itself, does not constitute such

a violation.” Hohider v. United Parcel Serv., Inc., 574 F.3d

169, 194 (3d Cir. 2009) (quoting Deane v. Pocono Med. Ctr., 142

F.3d 138, 149 (3d Cir. 1998) (en banc)). In addition, the NJLAD

explicitly lists “leaves of absence” as an example of a

“reasonable accommodation.” N.J. Admin. Code 13:13-

2.5(b)(1)(ii). A leave of absence is also a potential

reasonable accommodation under the ADA. See Regulations to

Implement the Equal Employment Provisions of the Americans with

Disabilities Act, 29 C.F.R. Pt. 1630, App. (“other

accommodations could include permitting the use of accrued paid

leave or providing additional unpaid leave for necessary

treatment . . .”).

While “an employer has a duty to offer a reasonable

accommodation to a qualified employee, ‘an employee cannot make

[the] employer provide a specific accommodation if another

reasonable accommodation is instead provided.’” Solomon v. Sch.

Dist. of Philadelphia, 532 F. App’x 154, 158 (3d Cir. 2013)

(non-precedential) (quoting Hankins v. The Gap, Inc., 84 F.3d

797, 800-01 (6th Cir. 1996)). Therefore, although Plaintiff was

not provided with the accommodation that she states she

preferred, she was provided with an accommodation for her stated

disability. Thus, Plaintiff cannot demonstrate her failure to

accommodate claim. This count will be dismissed.

D. FMLA Interference

Defendant argues that Plaintiff’s “claims for FMLA

interference fail because Plaintiff received FMLA leave and was

reinstated to her prior position” following her leave. (ECF 40-

1 at 10, 39). In a footnote in her Response, Plaintiff states,

“[a]fter much thought, Ms. Williams withdraws her FMLA

interference claim.” (ECF 45 at 6 fn.1). This claim will

therefore be dismissed.

E. Retaliation

Plaintiff alleges retaliation claims under Title VII and

the NJLAD based on her complaints about Pecora, under the ADA

and NJLAD for retaliation based on her alleged disability, and

under the FMLA for retaliation based on her use of her FMLA

leave. First, this Court will set out the applicable legal

framework for each of these claims. Then, because these claims

require this Court to consider many of the same arguments, this

Court will begin by addressing certain of the overlapping

factors, and then will discuss each count as needed.

Specifically, this Court will first discuss Plaintiff’s alleged

adverse employment actions, and then Defendant’s proffered

reasons for those actions. Finally, the Court will look to each

claim to determine whether Plaintiff has established causation

or carried her burden to establish that Defendant’s non-

discriminatory explanation is pretextual.

i. Elements of Retaliation Claims

As described more specifically in each subsection, the

Retaliation claims are all governed by the McDonnell Douglas

burden-shifting framework. This framework has three basic

steps. First, the plaintiff must put forward a prima facie case

of discrimination by a preponderance of the evidence. Sarullo

v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003). If a

plaintiff makes a prima facie case of discrimination, the

analysis continues to the second step. At this step, the burden

shifts to the defendant to provide “a legitimate,

nondiscriminatory reason for its actions.” Tucker v. Thomas

Jefferson Univ., 484 F.App’x 710, 712 (3d Cir. 2012). If the

defendant succeeds, the analysis proceeds to the third step. At

this stage, “the inference of discrimination drops and the

burden shifts back to the plaintiff to show that the defendant’s

proffered reason is merely a pretext for intentional

discrimination.” Makky v. Chertoff, 541 F.3d 205, 214 (3d Cir.

2008). If each side meets its burden at each stage, then

summary judgment is inappropriate. Whishkin v. Potter, 476 F.3d

180, 185 (3d Cir. 2007). Each step of this framework is its own

separate analysis. Hicks v. New Jersey Department of

Corrections, et al., No. 16-00927, 2019 WL 5587324, at * 4

(D.N.J. Oct. 30, 2019).

1. Title VII and NJLAD Sex Based Retaliation

Plaintiff alleges retaliation for reporting Pecora’s

conduct pursuant to Title VII and the NJLAD. “To establish a

prima facie case of retaliation under Title VII, a plaintiff

must show that: ‘(1) she engaged in activity protected by Title

VII; (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) (quoting Nelson v. Upsala Coll., 51

F.3d 383, 386 (3d Cir. 1995)). Similarly, to make out a

retaliation claim under the NJLAD, “an employee must

demonstrate: ‘(1) the employee engaged in a protected employee

activity; (2) the employer took an adverse employment action

after or contemporaneous with the employee’s protected activity;

and (3) a causal link exists between the employee’s protected

activity and the employer’s adverse action.’” Martone v. Jet

Aviation Flight Servs. Inc., 2020 WL 3969919, at *6 (D.N.J. July

13, 2020) (quoting Abramson v. William Patterson College of

N.J., 260 F.3d 265, 286 (3d Cir. 2001)).

If Plaintiff establishes a prima facie case, “the burden of

production shifts to the employer to present a legitimate, non-

retaliatory reason for its actions.” Daniels v. Sch. Dist. of

Phila., 776 F.3d 181, 193 (3d Cir. 2015). If such a reason is

offered, the burden shifts back to the plaintiff to demonstrate

that the reason was merely pretext and that retaliation was the

real reason for the adverse employment action. Id.; see also

Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994) (“[T]he non-

moving plaintiff must 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 them ‘unworthy of credence.’”)). “Although the burden of

production of evidence shifts back and forth, the plaintiff has

the ultimate burden of persuasion at all times.” Daniels, 776

F.3d at 193.

Defendant argues that “[Plaintiff’s] claims for retaliation

fail because she cannot show she was subject to an adverse

employment action, cannot show a causal relationship between her

protected activity and any action, and cannot establish

pretext.” (ECF 40-1 at 10).

2. ADA and NJLAD Disability Based Retaliation

Plaintiff asserts disability-based retaliation claims under

the ADA and NJLAD. To establish an ADA retaliation claim, a

plaintiff must only show there was: “(1) protected employee

activity; (2) adverse action by the employer either after or

contemporaneous with the employee’s protected activity; and (3)

a causal connection between the employee’s protected activity

and the employer’s adverse action.” Fogleman v. Mercy Hosp.,

Inc., 283 F.3d 561, 567–68 (3d Cir. 2002) (quoting Krouse v.

American Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997)). A

plaintiff need not establish they have a disability to bring a

retaliation claim under the ADA. Krouse, 126 F.3d at 498 (“We

hold that a person’s status as a ‘qualified individual with a

disability’ is not relevant in assessing the person’s claim for

retaliation under the ADA.”).

Similarly, the NJLAD makes it unlawful “[f]or any person to

take reprisals against any person because that person has

opposed any practices or acts forbidden under this act or

because that person has filed a complaint, testified or assisted

in any proceeding under this act.” N.J. Stat. Ann. § 10:5–

12(d). Retaliation claims under the NJLAD are analyzed under

the burden-shifting framework discussed above. Daniels, 776

F.3d at 193. A plaintiff must first establish a prima facie

case before the burden shifts to the defendant to offer a

legitimate, non-retaliatory reason for the employment action.

Id. The burden then shifts back to the plaintiff to demonstrate

that the asserted non-retaliatory reason was merely pretextual.

Id.

3. FMLA Retaliation

“The FMLA prohibits employers from discriminating against

employees who have taken FMLA leave, and also prohibits

employers from using an employee’s utilization of FMLA leave as

a negative factor in employment actions, such as hiring,

promotion, or disciplinary actions.” Caruso v. Bally’s Atlantic

City, 2019 WL 4727912, at *5 (citing 29 U.S.C. § 2615(a)(2); 29

C.F.R. § 825.220(c)). “To establish a retaliation claim under

the FMLA, a plaintiff must first establish a prima facie case of

retaliation by demonstrating that: (1) she availed herself of a

protected right under the FMLA; (2) she suffered an adverse

employment action; and (3) the adverse action was causally

related to the plaintiff’s FMLA leave.” Id. (citing Conoshenti

v. Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 146 (3d Cir.

2004)).

Once a plaintiff has established a prima facie case, the

burden shifts to the defendant to articulate a legitimate,

nonretaliatory reason for the adverse action. Id. (citing

Moore, 461 F.3d at 342; Krouse, 126 F.3d at 500–01). If the

defendant is successful in articulating a legitimate,

nonretaliatory reason for the adverse action, the burden then

shifts back to the plaintiff, who must show that the employer’s

proffered reason is pretextual and that the employer’s actual

reason for the adverse action was to retaliate against the

employee for taking FMLA leave. Id. (citing Hodgens, 144 F.3d

at 161; Thurston v. Cherry Hill Triplex, 941 F. Supp. 2d 520,

532 (D.N.J. 2008)).

ii. Adverse Employment Actions

Defendant argues that certain of Plaintiff’s alleged

retaliatory acts do not constitute an adverse employment action:

Plaintiff’s transfer to the hospital, change in holiday

schedule, and inability to log into a computer on the first day

after she returned from leave. (ECF 40-1 at 27).

Plaintiff argues that transfer to the hospital is an

adverse action. (ECF 45 at 27). She explains that a hospital

environment during a COIVD surge is a less desirable position

than her urgent care placements. (Id.). She avers that

Defendant was aware that this was a less desirable assignment,

as it was presented to her as “bad news.” (Id.). Plaintiff

does not appear to argue that her change in holiday schedule or

log in issues were adverse employment actions, instead

discussing them in the context of her disability hostile work

environment claim. That said, this Court will address whether

those allegations rise to the level of an adverse employment

action in an abundance of caution.

The standard for what constitutes an adverse employment

action is different for retaliation and discrimination claims.

Indeed, “[t]he standard a plaintiff must meet in establishing a

materially adverse action is widely recognized to be ‘lower for

a retaliation claim than for a disparate treatment claim.’”

McKinnon v. Gonzales, 642 F. Supp. 2d 410, 426 (D.N.J. 2009)

(quoting Flynn v. N.Y. State Div. of Parole, 620 F. Supp. 2d

463, 490 (S.D.N.Y. 2009)). To satisfy the adverse employment

action prong of the Title VII retaliation claim, Plaintiff “must

show that a reasonable employee would have found the alleged

retaliatory actions ‘materially adverse’ in that they ‘well

might have dissuaded a reasonable worker from making or

supporting a charge of discrimination.’” Moore, 461 F.3d at 342

(quoting Burlington Northern and Santa Fe Ry. Co. v. White, 548

U.S. 53, 68 (2006)). As the Supreme Court put it, Title VII’s

“antiretaliation provision protects an individual not from all

retaliation, but from retaliation that produces an injury or

harm.” Burlington Northern, 548 U.S. at 67.

Transfer to a less desirable rotation could constitute an

adverse employment action. See Burlington Northern, 548 U.S. at

71 (finding that the “reassignment of job duties is not

automatically actionable,” but transfer from a position that was

“objectively considered a better job” to a position that was “by

all accounts more arduous and dirtier” can be an adverse

employment action); Durham Life Ins. Co. v. Evans, 166 F.3d 139,

152–53 (3d Cir.1999) (citation and quotations omitted) (“The

Supreme Court has defined a tangible employment 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.”).

That said, it is undisputed that Plaintiff never actually

worked in the hospital setting as she instead took a leave of

absence. Thus, even if Plaintiff could establish that the

transfer was related to her sexual harassment complaint or her

disability, she cannot establish injury or harm from the alleged

retaliation. See Hudson v. Cheyney Univ. of Pa., No. 14-2552,

2018 WL 6603870, at *7 (E.D. Pa. Dec. 14, 2018) (“[T]he threat

of termination . . . does not amount to an adverse employment

action because no punitive action was taken against plaintiff”);

Leblanc v. Hill Sch., No. 14-1674, 2015 WL 144135, at *16 (E.D.

Pa. Jan. 12, 2015) (“[W]hen an employer threatens to take an

action but does not in fact take that action, the threat does

not constitute a materially adverse employment action for the

purposes of retaliation claims.”); Ilori v. Carnegie Mellon

Univ., 742 F. Supp. 2d 734, 760 (W.D. Pa. 2010) (holding that a

“threat [that] was never carried out and had no demonstrable

impact on plaintiff’s employment” is insufficient to constitute

an adverse employment action); see also Young v. St. James

Mgmt., LLC, 749 F. Supp. 2d 281, 298 (E.D. Pa. 2010) (“A

temporary reassignment does not constitute ... an adverse

employment action.” (citations omitted)).

The log-in issue is not an adverse employment action.

Rather, this was a quickly remedied administrative snafu due to

Plaintiff being transferred from leave to active status.

Because of this quick fix, Plaintiff cannot demonstrate that

this minor issue was materially adverse or caused harm to

Plaintiff.

As for the change in holiday schedule, it is undisputed

that Plaintiff received the same number of holidays off as she

had anticipated. The question is whether the change in those

holidays she had off constitutes an adverse employment action.

Plaintiff does not allege that she had less desirable holidays

off, just that it is not the ones she had anticipated having

off. As such, this was not a materially adverse change.

Because this Court has determined that none of these

alleged incidents constitute an adverse employment action under

the circumstances as alleged, the Court will proceed in its

analysis of Plaintiff’s retaliation claims limited to her

termination as the retaliatory act.

iii. Non-Discriminatory Explanation for Plaintiff’s

Termination

Defendant explains that Plaintiff was terminated due to

“two serious patient neglect incidents occurring in April 2021

and Plaintiff’s refusal to follow a doctor’s directive.” (ECF

40-1 at 31). This includes refusing a directive to administer

oxygen to an audibly wheezing patient. (Id. at 32). Defendant

avers that there is no evidence that these stated reasons for

her termination were pretextual. (Id. at 31). Rather,

Defendant elaborates that “[f]ive members of a panel reviewed

the incidents and unanimously agreed that termination was

proper.” (Id.).

Plaintiff asserts that the rationale for her termination is

pretextual. She states that one of the reasons Defendant

proffered for her termination was her “allegedly turning away

patients.” (ECF 45 at 29). Plaintiff avers that not only did

she not do so, but that this is “an extremely common practice”

at Inspira. (Id.) (emphasis in original). Plaintiff points to

another employee who turned patients away without being seen who

was disciplined on at least four occasions before she was

ultimately terminated. (Id. at 29–30). Plaintiff alleges that

this employee, who “does not suffer from disabilities” received

“two verbal counselings, a written warning, and a suspension.”

(Id.) (emphasis in original). Plaintiff avers that her actions

were reasonable and should have resulted in lesser disciplinary

action rather than termination. (Id. at 30).

Defendant responds that the circumstances of this other

employee are not comparable to Plaintiff’s based on the

“seriousness” of the conduct. (ECF 46 at 13). Unlike the other

employee, “Plaintiff was presented with a patient in actual

respiratory distress and refused two directives from a doctor to

administer oxygen.” (Id. at 13–14). They are also distinct

because Plaintiff was employed as a nurse, whereas the other

employee was a clinical technician. (Id. at 14). As for

Plaintiff’s argument that her actions were reasonable and should

have resulted in lesser discipline, Defendant asserts that

“[m]erely disagreeing with the decision and claiming the

employer was wrong does not establish pretext.” (Id.).

Plaintiff further argues that the circumstances of her

termination “are also highly suspicious.” (ECF 45 at 30). She

alleges that although she was suspended pending an

investigation, her termination notice was drafted the same day

of her suspension and before her supervisor met with her.

Plaintiff avers that she is the only employee that this

supervisor ever terminated without first providing another type

of formal disciplinary action, contrary to the “typical

progressive disciplinary policy, which includes education,

verbal counseling, written warnings, performance improvement

plans, and suspensions before termination.” (Id. at 30–31).

Finally, Plaintiff explains that Defendant first offered for her

to resign rather than be terminated, stating that she would be

eligible to be paid for her 147 hours of accrued paid time off

if she resigned instead. (Id. at 31).

Defendant explains that after the termination notice was

drafted it needed to be reviewed and approved by human resources

as the next step of the investigative process, and after that it

was reviewed by a review panel. (ECF 46 at 15). The panel then

ultimately agreed to terminate Plaintiff. (Id.). Defendant

explains that it was “not obligated to follow progressive

discipline as it had discretion to immediately terminate.”

(Id.). Defendant explains that progressive discipline was not

used here where Plaintiff “refused to provide emergency care to

a patient.” (Id. at 16).

Plaintiff points to alleged factual disputes, specifically

questioning the credibility of the testimony of two witnesses

about harassment complaints against Pecora, Plaintiff’s medical

conditions, and the timing of the decision to terminate

Plaintiff. (ECF 45 at 32). Plaintiff proposes that these

credibility issues could cause a jury to “disbelieve their

stated reasons for terminating Ms. Williams.” (Id. at 33).

Defendant responds that “[n]one of Plaintiff’s arguments on

credibility raise a genuine issue of material fact regarding the

facts giving rise to Plaintiff’s termination, which facts are

undisputed. Indeed, the critical undisputed issue is not just

Robbins, but rather a panel of numerous individuals unanimously

agreed that the actions Plaintiff engaged in—and which she does

not deny—justified termination.” (ECF 46 at 17).

While Plaintiff seeks to undermine the stated reasons for

her termination, in order to establish retaliation Plaintiff

must demonstrate that the stated reasons were pretextual and the

actual reason was discriminatory. She must draw a connection

between her protected action or her protected status and her

termination. Thus, this Court will discuss each of Plaintiff’s

retaliation claims and whether she has established a connection.

iv. Causation and Pretext

1. Title VII and NJLAD Sex Based Retaliation

Defendant asserts that Plaintiff has not established

causation. (ECF 40-1 at 28). First, Defendant explains that

the timing of the alleged adverse actions does not suggest

retaliation. (Id.). Plaintiff engaged in a protected activity

on July 3, 2020. (Id.). Plaintiff was terminated nine months

after the protected activity, on April 21, 2021. (Id.).

Second, Plaintiff has not pointed to any other indications of

causation, and instead Defendant points to Plaintiff’s statement

that “I do believe you have done everything in your power in my

perception that you could do to minimize’ being ‘victimized over

and over again.’” (Id. at 29–30).

Plaintiff asserts that her termination was “within just two

weeks of her most recent objection to the hostile work

environment.” (ECF 45 at 29). Plaintiff points to an alleged

history of conduct from Pecora that he was not disciplined for.

ECF 45 at 32). Plaintiff avers that “the jury could interpret

Defendant’s lack of an appropriate response as evidence of their

own impermissible animus towards such concerns, establishing

both causation and pretext.” (Id.). Defendant argues that

Plaintiff has not pointed to any connection between her

complaint or any other alleged complaints and her termination.

(ECF 46 at 16).

Although Plaintiff makes arguments as to why she disagrees

with Defendant’s decision to terminate her, she fails to draw a

connection between her complaints of sexual harassment and her

termination. First, her formal complaint occurred nine months

before she was terminated. (See ECF 40-2 and 45-2 at ¶¶ 9,

113). Second, Pecora resigned in December 2020, so there were

no further scheduling issues at the time of her termination.

(See Id. at ¶¶ 29).

Finally, while Plaintiff advises that she continued to

complain about having to work at the Tomlin Station location,

and that her most recent complaint was just two weeks before her

termination, this argument is too attenuated to establish

retaliation. Defendant was up front in its explanation that it

agreed that Plaintiff would not be staffed with Pecora again,

but that she may still be required to work at the Tomlin Station

location when he was not working. By the time of Plaintiff’s

termination, Pecora had no longer been working at Inspira for

approximately three months. Thus, in assigning her to work at

the Tomlin Station location, it is undisputed that she was not

staffed with Pecora.

While Plaintiff disagrees with Defendant’s decision to

still staff her at the Tomlin Station location, Defendant

explains that it is part of the job description to have

flexibility to work at various locations and it stated at the

time of its investigation into Plaintiff’s harassment that it

would still staff her at this location. Thus, Plaintiff’s

argument that her continued complaints about the handling of her

harassment complaint nine months prior demonstrates that her

termination was in retaliation for her protected activity in

reporting harassment is unavailing. Defendant did not act

unreasonably in continuing to assign Plaintiff to work at the

Tomlin Station location under the specific circumstances of this

case. Thus, Plaintiff’s continued complaining about having to

work at this location is not protected activity. Moreover, the

two week gap between her complaining about having to work at

Tomlin Station and her termination, understanding that Plaintiff

had been continuously complaining about this, is not enough to

establish pretext. This count will be dismissed.

2. ADA and NJLAD Disability Based Retaliation

Defendant argues that “Plaintiff did not contend her

termination was based on any disability during her deposition,

and yet now for the first time she does so in contradiction to

her deposition testimony. However, even had Plaintiff

identified her termination as an adverse action taken because of

her disability, there is no evidence that Defendant’s stated

reason for this action was pretextual.” (ECF 46 at 18).

Plaintiff does not point to any support for her argument

that her termination was based on her alleged disability. As

such, she has not carried her burden of production in refuting

Defendant’s non-retaliatory explanation. This count will

therefore be dismissed.

3. FMLA Retaliation

Defendant advises that Plaintiff cannot establish

causation, “where the termination occurred more than four months

after the leave request” and Defendant’s reasons for the

termination were not pretextual. (Id.).

Plaintiff argues that the timing of her termination is

suggestive of retaliation, as it occurred “within just one month

of her return from medical leave.” (ECF 45 at 28–29).

Defendant responds that the protected activity involved here is

taking the medical leave, not returning from it. (ECF 46 at

11). Thus, the relevant date is that date she requested her

FMLA leave, which was December 17, 2020 at the latest. (Id.).

Regardless of whether you count from the date of her leave

request or the date she returned from leave, Plaintiff’s

termination was not so close in time, within the greater context

of the facts of this case, so as to raise an inference of

pretext. Plaintiff has not pointed to any other connection

between her termination and her FMLA leave. Thus, as a matter

of law, Plaintiff has not carried her burden in demonstrating an

FMLA retaliation claim. This count will be dismissed.

F. Disability Discrimination

Plaintiff asserts claims of disability discrimination

pursuant to the ADA and NJLAD. Courts analyze claims for

disability discrimination under the McDonnell Douglas burden-

shifting framework, set out in the retaliation section above.

Disability discrimination claims under the ADA and the

NJLAD are analyzed under the same framework. Guarneri v.

Buckeye Pipe Line Services Co., 205 F.Supp.3d 606, 614 (D.N.J.

2016). To state a prima facie cause of action for disability

discrimination, the employee must show the following: (1) the

employee was disabled; (2) she is otherwise qualified to perform

the essential functions of the job, with or without reasonable

accommodations by the employer; and (3) she has suffered an

otherwise adverse employment decision as a result of

discrimination. Id. Disability discrimination encompasses not

only adverse actions motivated by prejudice and fear of

disabilities, but also includes failing to make reasonable

accommodations for a plaintiff’s disabilities. Taylor v.

Phoenixville School Dist., 184 F.3d 296, 305–06 (3d Cir. 1999)

(discussing ADA); Gavin v. Haworth, Inc., 2016 WL 7325474, at *6

(D.N.J. 2016) (discussing NJLAD).

Defendant first, in a footnote, notes that Plaintiff cannot

establish the first two elements. (ECF 40-1 at 34). Defendant

states that she has not put forth sufficient proofs that she has

a qualifying disability. (Id.). In addition, Defendant claims

that to the extent Plaintiff asserts she was unable to work in

the hospital, Plaintiff has not demonstrated that she is able to

perform the essential functions of her job, as ability to work

at other locations is an essential function of the job. (Id.).

Defendant again explains that most of the alleged

discriminatory acts do not constitute an adverse employment

action, and have non-pretextual explanations. (Id.). Defendant

avers that Plaintiff did not assert a connection between her

disability and her termination, but that to the extent it must

be addressed reiterates that the termination had a non-

discriminatory basis. (Id. at 36).

As explained above, the standard for establishing an

adverse action is “lower for a retaliation claim than for a

disparate treatment claim.” McKinnon, 642 F. Supp. 2d at 426

(quoting Flynn, 620 F. Supp. 2d at 490). As such, this Court

relies on its discussion above of what constitutes an adverse

employment action, and will accordingly limit this discussion to

Plaintiff’s termination. Again, as discussed above, Plaintiff

has not demonstrated any connection between her alleged

disability and her termination. Accordingly, Plaintiff’s

disability discrimination claim will be dismissed.

VII. LEGAL STANDARD FOR MOTION TO SEAL

Local Civil Rule 5.3 has several requirements that the

Parties must address for a court in this District to restrict

public access to court documents:

(a) the nature of materials or the

proceedings at issue;

(b) the legitimate private or public

interest which warrants the relief sought;

(c) the clearly defined and serious injury

that would result if the relief sought is

not granted;

(d) why a less restrictive alternative to

the relief sought is not available;

(e) any prior order sealing the same

materials in the pending action; and

(f) the identity of any party or nonparty

known to be objecting to the sealing

request.

L. Civ. R. 5.3(c)(2). The party moving to seal must submit a

proposed order that contains proposed findings of fact and

conclusions of law. Id.

The Court notes that while litigants have an interest in

privacy, the public also has a right to obtain information about

judicial proceedings. In re Avandia Mktg., Sales Practices &

Prods. Liab. Litig., 924 F.3d 662, 670-74 (3d Cir. 2019). When

discovery materials are filed as court documents, a more

rigorous common law right of access is applied. Id. at 670.

“In addition to recognizing fewer reasons to justify the sealing

of court records, the public right of access — unlike a Rule 26

inquiry — begins with a presumption in favor of public access.”

Id. To rebut the presumption of public access, “the party

seeking confidentiality must demonstrate good cause by

establishing that disclosure will cause a clearly defined and

serious injury to the party seeking closure.” Boehringer

Ingelheim Pharma GmbH & Co. v. Mylan Pharms., No. 14-4727, 2015

WL 4715307, at *2 (D.N.J. Aug. 7, 2015) (quoting Publicker

Indus., Inc. v. Cohen, 733 F.2d 1059, 1071 (3d Cir. 1984))

(internal quotations omitted). “‘Broad allegations of harm,

unsubstantiated by specific examples or articulated reasoning,’

do not support a good cause showing.” Id. (quoting Cipollone v.

Liggett Group, Inc., 785 F.2d 1108, 1121 (3d Cir. 1986), cert.

denied, 484 U.S. 976 (1987)).

VIII. DISCUSSION OF MOTION TO SEAL

Plaintiff avers in her Motion to File Documents Under Seal

that the documents she seeks to seal are subject to a Discovery

Confidentiality Order issued by the Honorable Sharon A. King,

the United States Magistrate Judge to whom this matter was

referred for pre-trial management. (ECF 50 at p. 4 ¶ 2). The

Confidentiality Order “permitted the parties to mark certain

sensitive documents as ‘CONFIDENTIAL’ and required that any

parties seeking to file such documents do so under seal.”

(Id.). Plaintiff attached certain of these confidential

documents as exhibits to her Response to Defendant’s Motion for

Summary Judgment. (Id. at 5 ¶ 5). Plaintiff filed her Response

under temporary seal. (See ECF 45). Plaintiff now seeks to

permanently seal the confidential documents attached as

exhibits, noting that they are exhibits F, H, I, K, L, O, R.

(ECF 50 at p. 5 ¶ 6).

Although the documents sought to be sealed are the subject

of a Confidentiality Order issued by Judge King that

specifically states that such documents should be filed under

seal if such documents were filed, such protection during the

duration of discovery does not necessarily extend throughout the

entire life of a case. Even where a document is subject to a

protective order, when it is filed as part of a non-discovery

motion the party seeking to seal the document must comply with

Local Civil Rule 5.3. Under Rule 5.3(c)(2), a party seeking to

seal documents must show: (a) the nature of the materials at

issue; (b) the legitimate private or public interests which

warrant the relief sought; (c) the injury that would result if

the relief sought is not granted; and (d) why a less restrictive

alternative to the relief sought is not available. L. Civ. R.

5.3(c) (5). In turn, any order or opinion on a motion to seal

must make findings as to these factors.

Documents filed with the Court or utilized in connection

with judicial proceedings are part of the public record with a

presumptive right of public access. Leucadia v. Applied

Extrusion Tech., Inc., 998 F.2d 157, 164 (3d Cir. 1993). This

is true even if the parties enter into a confidentiality

agreement during discovery, even one approved by a Magistrate

Judge. Thus, when a party files a motion to seal, especially in

conjunction with making or opposing a dispositive motion, that

party must demonstrate that good cause exists for continuing

protection of the material at issue. Securimetrics, Inc. v.

Iridian Techs., Inc., 2006 WL 827889, at *2 (D.N.J. Mar. 30,

2006). A party demonstrates good cause by making a

“particularized showing that disclosure will cause a ‘clearly

defined and serious injury to the party seeking closure.’” Id.

(quoting Pansy v. Borough of Stroudsburg, 23 F.3d 772, 786 (3d

Cir. 1994)).

Plaintiff here relied solely on the fact of the protective

order in support of her assertion that the noted exhibits should

be sealed. That reliance is misplaced. Plaintiff failed to

demonstrate good cause or make a particularized showing of

serious injury. Therefore, this Court will deny Plaintiff’s

Motion to Seal without prejudice. However, this Court, in its

discretion, will allow Plaintiff the opportunity to remedy this

defect and provide explanation for why these documents should be

sealed.

The portion of Plaintiff’s filing that Plaintiff has not

sought to seal, including her brief and other exhibits, will be

unsealed.

IX. CONCLUSION

For the reasons set forth above, Plaintiff’s Motion to File

a Sur-Reply will be denied, Defendants’ Motion for Summary

Judgment will be granted, and Plaintiff’s Motion to Seal will be

denied without prejudice.

An appropriate Order follows.

Date: October 31, 2023 s/ Noel L. Hillman

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