CUNNINGHAM v. BURLINGTON COAT FACTORY WAREHOUSE CORPORATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

CHARLIZE CUNNINGHAM, 1:18-cv-11266-NLH-MJS

Plaintiff, OPINION

v.

BURLINGTON COAT FACTORY

WAREHOUSE CORPORATION

Defendant.

Appearances:

JORDAN DANIEL SANTO

DAVID MIKEL KOLLER

KOLLER LAW PC

2043 LOCUST ST., SUITE 1B

PHILADELPHIA, PA. 19103

On behalf of Plaintiff

CHELSEA ANNE BIEMILLER

STRADLEY RONON STEVENS & YOUNG, LLP

2005 MARKET ST., SUITE 2600

PHILADELPHIA, PA. 19103

MICHAEL D. O’MARA

STRADLEY, RONON, STEVENS & YOUNG, ESQS.

457 HADDONFIELD RD., SUITE 100

CHERRY HILL, N.J. 08002

On behalf of Defendant

HILLMAN, District Judge

Pending before the Court are Defendant Burlington Coat

Factory Warehouse Corporation’s (“Defendant”) motion for summary

judgment, (ECF 94), and the parties’ joint motion to seal, (ECF

109). For the reasons expressed below, Defendant’s motion for

summary judgment will be granted in part and denied in part and

the parties’ motion to seal will be denied.

I. Background

Plaintiff Charlize Cunningham (“Plaintiff”) was hired as a

retail sales associate for Defendant in July 2011 and was

promoted to purchase order coordinator effective April 2, 2012.

(ECF 95-2; ECF 95-38 at ¶ 1; ECF 107-2 at ¶ 1). Plaintiff

reported to several direct supervisors during her tenure,

including Ahmed Savage, Megan Williams, and Tamara Alston, who

in turn reported to Charles Boyter. (Boyter Dep. Tr. at 13:11-

20; ECF 95-5). Plaintiff is transgender. (ECF 29 at ¶ 20).

Purchase order coordinators were required to complete a

minimum number of order entries – referred to internally as line

counts – sixty per day or 300 per week. (ECF 95-4; ECF 95-38 at

¶ 5). After being unable to meet minimum requirements,

Plaintiff was placed on a performance improvement plan in August

2012 and thereafter sometimes met and sometime did not meet

department requirements during various weeks as noted during

follow-ups. (Id.). Plaintiff’s performance improvement plan

also listed attention to detail; time management and

organization; and limiting personal phone calls, emails, and

internet use to break times as areas to address. (Id.)

Additional performance issues included portions of the workday

spent sending memes, jokes, and photos of herself to coworkers

and applying for outside employment, (ECF 95-14), and an

instance in which she sent a confidential contract to a

competitor of the intended vendor, (ECF 95-13). Boyter

testified that Plaintiff was “easily distracted” and that he

observed her walking around, socializing, and engaging in

activities unrelated to work. (Boyter Dep. Tr. at 21:20 to

22:24).

During her time working for Defendant, Plaintiff also

worked as a nurse’s aide at Philadelphia Nursing Home from 11

p.m. to 7 a.m. on various days. (Cunningham Dep. Tr. at 129:6-

24). Plaintiff would drive directly to Defendant from her job

at Philadelphia Nursing Home and slept between jobs and during

breaks. (Id. at 133:19 to 135:10).

Plaintiff was late for work on numerous occasions during

her employment with Defendant, including ninety-seven times

between April 2012 and February 2013; twelve times (with an

absence and three early departures) between May 6, 2013 and June

11, 2013; and fourteen times (with five absences) between the

weeks ending June 15, 2013 and August 3, 2013. (ECF 95-7; ECF

95-8). Plaintiff was issued a final warning regarding

attendance and tardiness issues on August 30, 2013, (ECF 95-11),

and was subsequently late eight times with three absences

between September 4, 2013 and October 4, 2013, (ECF 95-12).

On April 24, 2012, Plaintiff emailed Judith Mascio, then

Defendant’s director of human resources, to report an incident

in which a fellow purchase order coordinator asked her whether

she had been born a man and told Plaintiff that she had been

told by Williams – a team lead, which is a supervisory position

– that “there was a transvestite in the department, which worked

in the back office,” which is where Plaintiff worked. (Boyter

Dep Tr. 12:7-19; ECF 95-16; ECF 107-2 at ¶ 38). Plaintiff also

reported that Williams spread rumors about “‘the girl with the

red hair’ being a man” and that Plaintiff had requested to not

be called by her birth name and was “having a sex change.”

(Id.). Team leads used male pronouns while training her and,

while they later corrected themselves, male pronouns were later

used by other employees to refer to Plaintiff, she told Mascio.

(Id.). In response, one of the team leads explained that male

pronouns in question were used to refer to a male employee, not

Plaintiff. (ECF 95-18). Plaintiff testified that she was

misgendered thirty to forty percent of the time. (Cunningham

Dep. Tr. at 184:17 to 185:5).

Plaintiff claims that she was discriminated against due to

her gender by Savage, Williams, Boyter, Susan Katims, Brandy

Cornish, and others. (Id. at 62:13-18). Plaintiff stated that

Savage and Williams counseled and monitored her more frequently

and harshly than other employees and that it was her belief that

it was due to her gender. (Id. at 62:20 to 66:2). Savage also

instructed her to wear pants while other employees were allowed

to wear dresses and skirts, but Plaintiff could not recall if

she was disciplined for wearing skirts and did not have

documentation of her related complaint. (Id. at 186:1 to

187:24). Plaintiff also claimed that Savage did not invite her

to a potluck, but she may have been invited via email to that or

a different potluck. (Id. at 185:6-19, 187:25 to 191:9).

Boyter was short, rude, and unfriendly toward Plaintiff

while friendly to other associates, according to Plaintiff, and

Plaintiff recalled overhearing Boyter come out of his office and

ask Savage whether Plaintiff was transgender to which Savage

laughed and Williams replied “[o]h, she’s a pretty one.” (Id.

at 71:22 to 72:7, 183:24 to 184:8). Plaintiff testified that

Katims and Cornish were similarly short and unfriendly with her.

(Id. at 74:10 to 75:8).

Plaintiff was diagnosed with a serious disability1 in March

1 In the Court’s September 30, 2019 motion-to-dismiss opinion,

Plaintiff was granted leave to file a second amended complaint

to plead specifics regarding her disability. (ECF 20 at 20; ECF

21). Though not expressly identified in the second amended

complaint, (ECF 29), an attached certification by counsel

identified two disabilities, (ECF 29-1). Plaintiff thereafter

moved to seal the certification. (ECF 30). Magistrate Judge

Matthew J. Skahill granted the motion on October 6, 2022. (ECF

48). The confidential nature of Plaintiff’s disabilities is

therefore the law of the case.

2013. (Cunningham Dep. Tr. at 85:4-16; ECF 95-22). Plaintiff

disclosed her diagnosis to Katims, vice president of human

resources, and Cornish, who also worked in human resources,

during a discussion about Plaintiff’s final warning in September

2013, but Plaintiff did not request any accommodations related

to her treatment. (Cunningham Dep. Tr. at 89:20 to 90:9;

Cornish Dep. Tr. at 44:4 to 45:2). Plaintiff testified, but did

not report, that Katims responded that Defendant “didn’t want

sick people working for them” and that any treatment past

December 2013 might lead to re-evaluation of her employment.

(Cunningham Dep. Tr. at 87:18 to 88:14). This account was

refuted by Cornish. (Cornish Dep Tr. at 46:20 to 47:9).

Plaintiff’s diagnosis was treated as confidential, (id. at

45:15-25), and Plaintiff did not inform any other employees of

her diagnosis, (Cunningham Dep. Tr. at 117:9-14).

In April 2013, Plaintiff was provided personal leave,

purportedly to accommodate an unrelated procedure, following

denial of family and medical leave of absence (“FMLA”) by

Defendant’s third-party leave administrator, MetLife. (ECF 95-

23; ECF 95-24; ECF 95-38 at ¶ 49). Plaintiff was approved for

intermittent FMLA for three days per week from September 24,

2013 to December 23, 2013 to accommodate physical therapy

following a car accident. (Cornish Dep. Tr. at 39:16 to 40:3;

ECF 95-25). Plaintiff’s leave was potentially extendable upon

the provision of a new Health Care Provider Certification or

updated information, but Plaintiff did not provide such

information and her FMLA concluded on December 23, 2013. (ECF

95-25; ECF 95-28). Cornish advised Plaintiff that Defendant

needed to be updated on which days during the week she would be

on leave, medical appointments unrelated to physical therapy

were not covered under FMLA, and Plaintiff was still expected to

report to work from 9 a.m. to 5:30 p.m. on days she was not on

leave. (ECF 95-26; ECF 95-27).

Plaintiff continued to miss work or report to work late

following the conclusion of her FMLA. Plaintiff was late to

work nine times with four absences between January 9, 2014 and

February 7, 2014; late for work ten times with three absences

between February 10, 2014 and March 3, 2014; and reported late

on four days during the week of March 10, 2014. (ECF 95-31; ECF

95-32). Plaintiff also did not meet her required line counts.

(ECF 95-30; ECF 95-33). On March 18, 2014, Pamela Collins,

human resources business partner for Defendant, terminated

Plaintiff’s employment, citing performance issues. (Collins

Dep. Tr. at 63:15 to 64:2; ECF 95-5).

Plaintiff filed a notice of charge of discrimination with

the Equal Employment Opportunity Commission alleging

discrimination under Title VII and the Americans with

Disabilities Act (“ADA”) on January 15, 2015. (ECF 95-34).

Plaintiff thereafter filed the instant action on June 29, 2018.

(ECF 1). As amended in her second amended complaint, Plaintiff

asserts two counts: Count 1 alleges harassment and termination

due to her gender and Count 2 alleges failure to offer or

consider a reasonable accommodation in lieu of termination,

which she alleges was retaliatory. (ECF 29 at ¶¶ 72-102).

Defendant filed the instant motion for summary judgment on

October 13, 2023, to which Plaintiff filed an opposition and

Defendant replied. (ECF 94; ECF 107; ECF 108). On December 26,

2023, the parties jointly filed the pending motion to seal.

(ECF 109).

II. Discussion

A. Jurisdiction

The Court possesses original jurisdiction over this action

as Plaintiff’s claims are based on alleged violations of Title

VII and the ADA. See 28 U.S.C. § 1331.

B. Summary Judgment

The Federal Rules of Civil Procedure dictate that a “court

shall grant summary judgment if the movant shows that there is

no genuine dispute as to any material fact and the movant is

entitled to judgment as a matter of law.” Fed. R. Civ. P.

56(a). A dispute is genuine when “the ‘evidence is such that a

reasonable jury could return a verdict for the nonmoving party’”

and a fact is “‘material’ if it ‘might affect the outcome of the

suit under the governing law.’” Razak v. Uber Techs., Inc., 951

F.3d 137, 144 (3d Cir. 2020) (quoting Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986)). Facts and evidence are to be

viewed in the light most favorable to the nonmovant. Id.

III. Analysis

A. Count 1 – Title VII

The Court notes at the outset that Plaintiff’s opposition

to Defendant’s motion for summary judgment as to Count 1

addresses only gender discrimination related to her termination

and hostile work environment. (ECF 107-1 at 5-10). The second

amended complaint appears to make additional claims, including a

section dedicated to failure to promote due to gender, (ECF 29

at ¶¶ 28-34), for which Defendant seeks summary judgment due to

Plaintiff’s failure to provide factual support, (95-39 at 6

n.2). The Court interprets Plaintiff’s briefing as waiver of

Count 1 claims other than discriminatory termination and hostile

work environment and will grant summary judgment on Plaintiff’s

failure-to-promote claim. See Howard v. Shiftpixy, Inc., No.

20-17631, 2023 WL 2387399, at *7 (D.N.J. Mar. 7, 2023) (“A court

may deem a claim abandoned when a party moves for summary

judgment and the party opposing summary judgment fails to

address the argument in any way.”); Carchietta v. Russo, No. 11-

7587, 2017 WL 327306, at *2 (D.N.J. Jan. 23, 2017) (interpreting

the plaintiff’s failure to oppose a portion of a summary

judgment motion as abandonment of the relevant count).

i. Gender Discrimination

Title VII makes it unlawful for an employer “to fail or

refuse to hire or to discharge any individual, or otherwise to

discriminate against any individual with respect to his

compensation, terms, conditions, or privileges of employment,

because of such individual’s race, color, religion, sex, or

national origin.” 42 U.S.C. § 2000e-2(a)(1); Jones v. Se. Pa.

Transp. Auth., 796 F.3d 323, 325 (3d Cir. 2015). Title VII

discrimination claims proceed under a burden-shifting analysis

in which a plaintiff first must establish a prima facie case of

discrimination, the burden then shifts to the defendant to

“articulate a legitimate, non-discriminatory reason for the

adverse employment action,” and, if the defendant’s burden is

met, the analysis shifts once more to the plaintiff to show that

the “proffered reason is merely pretext for intentional

discrimination.” Trapani v. Greatwide Logistics Servs., LLC,

487 F. App’x 21, 23-24 (3d Cir. 2012) (quoting Makky v.

Chertoff, 541 F.3d 205, 214 (3d Cir. 2008)).

To make out a prima facie claim of employment

discrimination, Plaintiff must “show: 1) membership in a

protected class; 2) qualification for the position; 3) an

adverse employment action taken against [her] despite being

qualified; and (4) ‘the action occurred under circumstances that

could give rise to an inference of intentional discrimination.’”

Morgan v. Fiorentino, 811 F. App’x 798, 803 (3d Cir. 2020)

(quoting Makky, 541 F.3d at 214). “[S]ome causal nexus” must be

established between Plaintiff’s membership in a protected class

and her termination. Id. at 803-04 (quoting Sarullo v. U.S.

Postal Serv., 352 F.3d 789, 798 (3d Cir. 2003)). It has been

recognized within this Circuit – in light of the Supreme Court’s

decision in Bostock v. Clayton County, 590 U.S. 644 (2020) –

that Title VII’s protections extend to transgender individuals.

See Doe v. Triangle Doughnuts, LLC, 472 F. Supp. 3d 115, 129,

135-36 (E.D. Pa. July 16, 2020).

Defendant focuses its motion brief on the fourth prong of

the prima facie analysis – whether the adverse action was made

under circumstances inferring discrimination – claiming that

Plaintiff has failed to support an inference of discrimination,

such as citing similarly situated individuals who were treated

more favorably. (ECF 95-39 at 5-7). Plaintiff’s claims that

she was counseled harshly, referred to as “a pretty one,” asked

about her gender by a coworker, counseled on her attire,

excluded from a potluck, and misgendered by unidentified

employees are either insufficient to support her claim, not

temporally related to her termination, or based on her own

subjective beliefs. (Id. at 8-15). Even if Plaintiff

articulated a prima facie case of discrimination, she was

terminated for a legitimate, well-documented reason – poor

performance, according to Defendant, and such reason is not

pretextual in light of Plaintiff’s undisputed failure to meet

line-count requirements and frequent absences and late arrivals.

(Id. at 15-20).

In response, Plaintiff asserts that the Court can infer

discriminatory animus and points to the unspecified treatment of

unidentified “cisgender-presenting coworkers on or about January

28, 2021.” (ECF 107-1 at 6-7). Plaintiff may show that

Defendant’s proffered reason is pretextual by identifying

evidence that would allow the factfinder to disbelieve the

proffered reason or believe that discrimination was more likely

than not a motivating or determinative factor. (Id. at 8).

The Court finds Plaintiff’s effort to use similarly

situated employees to demonstrate an inference of discrimination

to be unavailing. As Defendant notes, Plaintiff’s argument

concerning how unidentified cisgender coworkers were treated in

January 2021 reads as an incomplete thought and is not supported

by the record. (ECF 108-1 at 2, 2 n.1). Plaintiff’s argument

cites to Paragraph 70 of her responsive statement of undisputed

material facts, (ECF 107-1 at 7), but that paragraph responds to

an asserted fact by Defendant that Plaintiff testified that she

believed that she should have been permitted to arrive late or

miss work without consequence so long as the late arrivals and

absences were related to a medical issue or treatment, (ECF 107-

2 at ¶ 70).

Plaintiff makes no effort to identify these employees,

their circumstances, how they were treated, or why their

treatment nearly seven years following her termination render

them similarly situated to her or support an inference of

discrimination. The Court agrees with Defendant that – absent

other evidence not identified by Plaintiff – Plaintiff’s failure

to identify similarly situated employees who were treated more

favorably is fatal to Plaintiff’s discrimination claim. See

Carter v. Midway Slots and Simulcast, 511 F. App’x 125, 128 (3d

Cir. 2013) (finding that the plaintiff failed to demonstrate

circumstances giving rise to an inference of race discrimination

– and thus failed to establish a prima facie case – due to he

and his five identified similarly situated employees not sharing

a supervisor and three of them being disciplined for a separate

policy than the plaintiff); Newton-Haskoor v. Coface N. Am., No.

11–3931, 2012 WL 1813102, at *5 (D.N.J. May 17, 2012)

(concluding, at the dismissal stage, that the conduct of the

male employee identified by the plaintiff was too dissimilar and

– having taken place nearly two years prior to her termination –

too remote in time to find the two to be similarly situated).

Even if the Court were to read in Plaintiff’s opposition

details and inferences she has failed to articulate, her

discrimination claim would still fall in the burden-shifting

framework. Defendant has identified Plaintiff’s poor

performance and persistent lateness and absences as legitimate,

non-discriminatory reasons for her termination. (ECF 95-39 at

15-18). These proffered reasons are supported by portions of

the record, including a performance improvement plan that began

approximately a year-and-a-half prior to her termination,

reports and emails documenting Plaintiff’s tardiness and

absences, and a final warning issued nearly six months prior to

her termination. (ECF 95-4; ECF 95-7; ECF 95-8; ECF 95-11; ECF

95-12; ECF 95-31; ECF 95-32; ECF 95-33). The Court finds that

Defendant has therefore met its burden. See Parson v. Vanguard

Grp., 702 F. App’x 63, 67-68 (3d Cir. 2017) (finding that poor

performance – as documented by year-end reviews, alerts, and a

formal warning – constituted a legitimate, non-discriminatory

reason for termination); Davis v. Solid Waste Servs., Inc., 625

F. App’x 104, 106 (3d Cir. 2015) (concluding that the defendant

met its burden to offer a legitimate reason for the plaintiff’s

termination based on attendance records showing that the

plaintiff was absent twelve times and late more than 130 times

in the two years prior to his termination and that his tardiness

and absences continued despite warnings).

The analysis need not end here. The burden shifts back to

Plaintiff, however, she does not attempt to shoulder it. After

a legitimate, non-discriminatory reason is proffered, a

plaintiff may nonetheless establish that the given reason is

pretextual by presenting evidence that either 1) casts doubt on

the proffered reason, enabling the factfinder to conclude that

it was fabricated or 2) “support[s] an inference that

‘discrimination was more likely than not a motivating or

determinative cause of the adverse employment action.’” Hanzer

v. Mentor Network, 610 F. App’x 121, 124-25 (3d Cir. 2015)

(quoting Fuentes v. Perskie, 32 F.3d 759, 762 (3d Cir. 1994)).

Plaintiff may have “point[ed] out ‘such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions in the employer’s proffered legitimate reasons’

that no jury could find them credible.” Andersen v. Mack Trucks

Inc., 647 F. App’x 130, 132 (3d Cir. 2016) (quoting Fuentes, 32

F.3d at 765).

Curiously, despite identifying this precise opportunity in

her opposition brief, (ECF 107-1 at 8), Plaintiff chose not to

seize it, instead moving on to her hostile-work-environment

claim without making any effort to rebut Defendant’s identified

reasons for her termination. Because the Court concludes that

Plaintiff has failed to articulate a prima facie case of

discrimination and – alternatively – has failed to rebut the

legitimate and supported reasons for her termination identified

by Defendant, the Court will grant summary judgment as to

Plaintiff’s discriminatory termination claim.

ii. Hostile Work Environment

Plaintiffs asserting a hostile-work-environment claim have

the prima facie burden of demonstrating that “1) the employee

suffered intentional discrimination because of his/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.” Selvato v. SEPTA, 658 F. App’x 52, 55 (3d Cir.

2016) (quoting Mandel v. M & Q Packaging Corp., 706 F.3d 157,

165 (3d Cir. 2013)). The hostility of the work environment is

determined by the totality of the circumstances, which “may

include ‘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.’” Fichter v.

AMG Res. Corp., 528 F. App’x 225, 230 (3d Cir. 2013) (quoting

Harris v. Forklift Sys., 510 U.S. 17, 23 (1993)). At summary

judgment, district courts must determine whether a reasonable

jury could conclude that the alleged harassment was severe and

pervasive. See Selvato, 658 F. App’x at 55.

Defendant emphasizes that Plaintiff cites only a handful of

instances in which she was made to feel excluded and those

instances are lacking in detail and are insufficient in severity

and frequency to rise to a hostile work environment. (ECF 95-39

at 22-23). Plaintiff has offered, at best, subjective beliefs

that she was harassed rather than actions so severe as to alter

the conditions of her employment, according to Defendant. (Id.

at 23-25). Plaintiff responds that the “pretty one” incident,

frequent misgendering, and subjection to a stricter dress code

are sufficient to support her hostile-work-environment claim.

(ECF 107-1 at 9-10).

Plaintiff testified that she was misgendered between thirty

and forty percent of the time, a practice that allegedly began

with team leads. (Cunningham Dep. Tr. at 184:17 to 185:5; ECF

95-16). She was asked by a coworker if she was born a man.

(Cunningham Dep. Tr. at 184:9-16; ECF 95-16). Plaintiff

overheard Boyter ask Savage whether Plaintiff was transgender to

which Savage laughed and Williams said “[o]h, she’s a pretty

one” and was instructed by Savage to wear pants as opposed to

skirts, while other employees were permitted to wear dresses and

skirts – though she did not recall if she was disciplined.

(Cunningham Dep. Tr. at 183:24 to 184:6, 186:1 to 187:24).

At least some of these allegations are supported by

materials beyond Plaintiff’s testimony. In an April 24, 2012

email to Mascio, Plaintiff reported that she had been asked by a

coworker if she was born a man; was referred to as a

“transvestite”; was subject to rumors that she did not want to

be called by her birthname, was having gender-affirming surgery,

and “‘the girl with the red hair’ being a man”; and was

mistakenly misgendered by team leads who later corrected

themselves, but the inaccuracy had been adopted through the

office. (ECF 95-16). The coworker who asked Plaintiff about

her gender at birth informed Mascio that she asked Plaintiff

because she overheard other employees making fun of and laughing

at Plaintiff. (ECF 95-17).

Plaintiff’s claims overlap with those pled in Doe, which

the Court finds to be the most directly on-point decision within

this Circuit. In Doe, the plaintiff was allegedly harassed by

coworkers and customers over the course of two months, including

being frequently misgendered; being asked inappropriate

questions about her sexuality, gender, and anatomy; and being

subject to a stricter dress code – including being required to

wear her hair in a ponytail and not wear makeup or nail polish.

472 F. Supp. 3d at 122-23. The court, at the dismissal stage,

concluded that the plaintiff set out a valid hostile-work-

environment claim premised on gender stereotyping, finding that

her being misgendered, prevented from using the women’s

restroom, kept away from customers, asked probing questions, and

subject to a stricter dress code were sufficiently severe and

pervasive, detrimental to her and a reasonable person, and tied

to her supervisors to support her claim. Id. at 129-30.

Plaintiff relies, in part, on Doe in her opposition, (ECF

107-1 at 9), while Defendant contends that the decision is

factually distinguishable and unpersuasive as it ruled on a

motion to dismiss, (ECF 108-1 at 7 n.2). Defendant further

asserts – as part of its discrimination argument – that

Plaintiff provided detailed testimony of alleged discrimination

only after being prompted by counsel – which Defendant likens to

“sham affidavits,” (ECF 95-39 at 10 n.3), and that Plaintiff’s

allegations and proofs are nonetheless insufficient to rise to

the level of severe and pervasive, (ECF 108-1 at 6-8).

The Court reads Defendant’s prompting argument as an attack

on Plaintiff’s credibility, or lack thereof, which would be

inappropriate for the Court to consider at summary judgment.

See Gofan v. Elmer, No. 16-8559, 2021 WL 1207481, at *10 (D.N.J.

Mar. 31, 2021). Similarly, it is not for the Court to weigh the

evidence. Clews v. Cnty. of Schuylkill, 12 F.4th 353, 358 (3d

Cir. 2021). Rather, the question is whether a reasonable jury

could conclude that the persistent misgendering, inappropriate

comments, and a distinct dress code – together – were

sufficiently severe and pervasive as to detrimentally affect

Plaintiff and a reasonable person. See Selvato, 658 F. App’x at

55. The Court concludes that a reasonable jury could so find.

The Court further acknowledges, as noted by Defendant, that

courts outside of this Circuit have arrived at holdings contrary

to the Court when presented with similar facts. See, e.g.,

Faulkenberry v. U.S. Dep’t of Def., No. 1:22-cv-01150, 2023 WL

3074639, at *11-12 (D. Md. Apr. 25, 2023) (granting dismissal

when the plaintiff’s allegations included denial of a parking

permit and relocation benefits given to other employees,

negative comments regarding her attire, and misgendering).

However, to the extent that any lower-court decision is

persuasive to the Court, though not binding, see Daubert v. NRA

Grp., LLC, 861 F.3d 382, 395 (3d Cir. 2017) (“A decision of a

federal district court judge is not binding precedent in either

a different judicial district, the same judicial district, or

even upon the same [district] judge in a different case.”

(alteration in original) (quoting Camreta v. Greene, 563 U.S.

692, 709 n.7 (2011)), the Court takes greatest guidance from the

in-Circuit opinion of Doe.

Because the Court finds that a reasonable jury could find

that the treatment toward Plaintiff was severe and pervasive

enough to detrimentally affect her and a reasonable person,

summary judgment will be denied.

B. Count 2 - ADA

The ADA provides that “[n]o covered entity shall

discriminate against a qualified individual on the basis of

disability in regard to job application procedures, the hiring,

advancement, or discharge of employees, employee compensation,

job training, and other terms, conditions, and privileges of

employment.” 42 U.S.C. § 12112(a). To establish a prima facie

ADA discrimination claim, a plaintiff must demonstrate that they

1) are disabled within the meaning of the ADA, 2) are otherwise

qualified for the position with or without reasonable

accommodations, and 3) were subject to an adverse employment

decision resulting from discrimination – a prong that requires

causation. Tirk v. Dubrook, Inc., 673 F. App’x 238, 241 (3d

Cir. 2016). Once the plaintiff establishes a prima facie claim

by the preponderance of the evidence, the burden shifts to the

defendant to identify a legitimate, non-discriminatory reason

and – if met — the burden shifts back to the plaintiff to show

that that reason is pretextual, similar to a Title VII

discrimination analysis. See id. at 240-41.

Defendant claims that Count 2 must fail on several fronts.

First, Defendant claims that Plaintiff was not known to have a

disability and did not suffer an adverse employment action due

to her disabilities as the only two employees who knew of her

diagnosis – Katims and Cornish – were not involved in her

termination. (ECF 95-39 at 27-29, 33-35). Plaintiff is also

not a qualified person under the ADA, according to Defendant,

because she could not perform the essential function of regular,

timely attendance. (Id. at 29-33). Defendant adds that, even

if Plaintiff has established a prima facie ADA claim, her poor

performance was a legitimate, non-pretextual reason for her

termination. (Id. at 35-36).

Plaintiff counters that her needed accommodation was

medical leave, she informed her supervisor of a medical issue

associated with a car accident, and that – had she been

accommodated – she would have been able to perform the essential

functions of her job. (ECF 107-1 at 11). She adds that,

because her termination was due to absences, the Court must

infer that those absences were connected to medical needs and

credibility determinations are to be made by the factfinder at

trial. (Id. at 11-12).

The Court agrees with Defendant that Plaintiff has failed

to establish a prima facie discrimination claim. First,

Plaintiff was informed by way of her August 2013 final warning

that her absences and lateness negatively impacted her

productivity and the productivity of her department and that

failure to keep her schedule may have resulted in termination.

(ECF 95-11). Plaintiff was thereafter counseled that her FMLA

did not cover all medical treatment and that it was important to

notify Defendant of the days she would be out, (ECF 95-26; ECF

95-27), and was advised by Alston of the importance of

punctuality and attendance shortly before her termination, (ECF

95-30). Plaintiff testified that she believed that any absence

or lateness at all related to any medical issue or treatment

should have been excused. (Cunningham Dep. Tr. at 119:5-22).

However, this Court has found that “because Plaintiff’s history

of unexcused absenteeism indicates an inability to attend work

on a regular basis when not otherwise excused, the Court cannot

find Plaintiff is qualified for the job he occupied.” Marsh v.

GGB, LLC, 455 F. Supp. 3d 113, 125 (D.N.J. Apr. 23, 2020)

(collecting cases).

Second, Plaintiff has failed to establish or identify a

disputed material fact whether her termination was due to her

disabilities. “[B]ecause disabilities are often unknown to an

employer, [a plaintiff] ‘must demonstrate that the defendant

employer knew of the disability to state a prima facie case of

unlawful discharge.’” Giunta v. Accenture, LLP, No. 08–3776,

2011 WL 322634, at *9 (D.N.J. Jan. 31, 2011) (quoting Geraci v.

Moody Tottrup, Int’l, 82 F.3d 578, 581 (3d Cir. 1996)); see also

Reutzel v. Answer Pro, LLC, No. 17-944, 2019 WL 3557365, at *5

(W.D. Pa. Aug. 5, 2019) (noting that a causal connection between

a plaintiff’s disability and the adverse employment decision

cannot be found when the employer did not know or have reason to

know of the disability).

Here, Plaintiff testified that Katims and Cornish were the

only two individuals who knew of her diagnosis. (Cunningham

Dep. Tr. at 117:9-14). To the extent that her claim is premised

on her car accident, Plaintiff was approved for FMLA leave and

opted not to attempt to extend her leave nearly three months

prior to her termination. (ECF 95-25; ECF 95-28). Collins

testified that the decision to terminate Plaintiff was hers,

though she may have consulted with Cornish and Boyter. (Collins

Dep. Tr. at 63:19 to 64:17).

Plaintiff makes a passing reference to Collins potentially

conferring with Cornish in her responsive statement of facts,

(ECF 107-2 at ¶ 83), but the Court finds any related argument to

be a red herring. The question is whether Collins knew of

Plaintiff’s diagnosis at the time of her decision. Collins’s

unrefuted testimony is that she did not. (Collins Dep. Tr. at

41:7-10). To find otherwise would be to permit Plaintiff to

meet her obligation at summary judgment through conjecture –

which the Court will not do. See Halsey v. Pfeiffer, 750 F.3d

273, 287 (3d Cir. 2014).

Therefore, the Court concludes that Plaintiff has failed to

satisfy an essential element, or identify a related disputed

material fact, of a prima facie discrimination case. Shawley v.

Jim Shorkey 1 White Oak, LLC, No. 20-710, 2022 WL 1539957, at

*11 (W.D. Pa. May 16, 2022) (granting summary judgment when

there was no evidence that the individuals who terminated the

plaintiff knew of her disability); Reutzel, 2019 WL 3557365, at

*5 (finding a lack of causal connection between employment

decisions and the plaintiff’s disability when the relevant

decisionmakers did not know of the plaintiff’s disability until

after the fact).

Finally, even if the Court concluded that Plaintiff has met

her prima facie burden, her claim would still fail under the

ADA’s burden-shifting analysis. As with the Title VII claim,

Defendant cites Plaintiff’s poor performance, absences, and

tardiness – which predate and postdate her FMLA – as legitimate

reasons for her termination, (ECF 95-39 at 35-36). Such reasons

are supported by the record, (ECF 95-4; ECF 95-7; ECF 95-8; ECF

95-11; ECF 95-12; ECF 95-31; ECF 95-32; ECF 95-33), and have

been deemed legitimate within this District. See Pezza v.

Middletown Twp. Pub. Schs., No. 18-16354, 2023 WL 8254431, at

*10-11 (D.N.J. Nov. 29, 2023); D’Agostino v. Kendall, No. 19-

281, 2021 WL 4860095, at *9 (D.N.J. Oct. 19, 2021).

Plaintiff had, as with her Title VII discrimination claim,

the opportunity to rebut Defendant’s proffered reasons as

pretextual. See Ostrowski v. Con-Way Freight, Inc., 543 F.

App’x 128, 130 (3d Cir. 2013) (“Unless the plaintiff can point

‘to some evidence, direct or circumstantial, from which a

factfinder’ could find that the articulated legitimate reasons

were pretextual, the defendant is entitled to summary judgment.”

(quoting Jones v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d

Cir. 1999))). Plaintiff instead, similar to her Title VII

opposition, identified this opportunity and chose not to point

to any evidence demonstrating pretext, instead focusing on the

importance of credibility and how such questions are to be left

to the factfinder. (ECF 107-2 at 11-12). This argument fails

to provide any evidence with which a factfinder could find that

the reasons given by Defendant are pretextual. Therefore,

summary judgment is appropriate. See Ostrowski, 543 F. App’x at

130-31.2

2 Defendant’s motion brief contends that Plaintiff has not

specified how she was allegedly retaliated against. (ECF 95-39

at 25 n.10). Though Plaintiff’s opposition states that she has

brought an ADA retaliation claim, (ECF 107-1 at 1), she does not

otherwise respond to Defendant’s contention and the Court

therefore deems the claim waived, see Howard, 2023 WL 2387399,

at *7. Likewise, Defendant’s reply brief argues that Plaintiff

did not respond to Defendant’s motion brief on the issue of

failure to accommodate and has thus waived the claim. (ECF 108

at 11 n.4). The Court agrees. Indeed, Defendant sought summary

judgment to the extent that Plaintiff’s ADA claim is premised on

failure to accommodate, (ECF 95-39 at 36-40), and Plaintiff’s

relatively brief opposition only references the standard for

disability discrimination and argues that she was terminated

instead of being provided an accommodation, (ECF 107-1 at 11).

For the sake of completeness, “[a] plaintiff bringing an ADA

failure-to-accommodate claim must establish: ‘(1) he was

disabled and his employer knew it; (2) he requested an

accommodation or assistance; (3) his employer did not make a

good faith effort to assist; and (4) he could have been

reasonably accommodated.’” Capps v. Mondelez Global, LLC, 847

F.3d 144, 157 (3d Cir. 2017) (quoting Armstrong v. Burdette

Tomlin Mem’l Hosp., 438 F.3d 240, 246 (3d Cir. 2006)). Here,

Plaintiff did not seek accommodations from Katims or Cornish

when she disclosed her diagnosis. (Cornish Dep. Tr. at 44:23 to

45:2). Plaintiff does not dispute that testimony, (ECF 107-2 at

¶¶ 47, 59, 63), or that she ever requested FMLA in connection

with her diagnosis, (id. at ¶ 107). Therefore, Plaintiff’s

claim must fail – at least in part – on the second prong of the

prima facie analysis. See Arana v. Temple Univ. Health Sys.,

C. Motion to Seal

Finally, the Court turns to the parties’ joint motion to

seal. (ECF 109). Motions to seal are governed by Local Civil

Rule 5.3. See Medley v. Atl. Exposition Servs., Inc., 550 F.

Supp. 3d 170, 203 (D.N.J. July 26, 2021). Local Civil Rule 5.3

requires that motions to seal be made via a single, consolidated

motion on behalf of all parties, L. Civ. R. 5.3(c)(1), and

include an index providing with particularity (a) the nature of

the materials or proceeding at issue, (b) the private or public

interests warranting the relief sought, (c) the clearly defined,

serious injury that would result without relief, (d) an

explanation as to why less restrictive alternatives are

unavailable, (e) any prior orders sealing the same materials,

and (f) the identity of any objector, L. Civ. R. 5.3(c)(3).

Courts must make findings on the Local Civil Rule 5.3(c)(3)

factors in orders and opinions sealing or otherwise restricting

public access to judicial proceedings or related materials. L.

776 F. App’x 66, 71 (3d Cir. 2019) (“An employee must say or do

something to put her employer on notice that she would like to

be accommodated at work.”). To the extent that Plaintiff’s

claim was premised on a condition related to her car accident,

Plaintiff was approved for intermittent FMLA to accommodate her

physical therapy. (Cornish Dep. Tr. at 39:16 to 40:3; ECF 95-

25). Plaintiff had an opportunity to extend her leave with a

new Health Care Provider Certification or updated information

but declined to do so. (ECF 95-25; ECF 95-28). Plaintiff does

not identify a supplemental request for accommodation or

assistance.

Civ. R. 5.3(c)(6); Sanofi-Aventis U.S. LLC v. Novo Nordisk Inc.,

No. 3:16-cv-09466, 2018 WL 10911501, at *1 (D.N.J. June 19,

2018). There is a presumption in favor of public access to

judicial records which may be overcome only upon a showing of

“good cause” – that is “a particularized showing that disclosure

will cause a ‘clearly defined and serious injury.’” See Medley,

550 F. Supp. 3d at 203-04 (quoting Pansy v. Borough of

Stroudsburg, 23 F.3d 772, 786 (3d Cir. 1994)).

Here, the parties seek to seal Defendant’s motion brief and

all attached exhibits, Plaintiff’s opposition and related

materials – including a responsive statement of undisputed

material facts and certificate of service, and Defendant’s

reply. (ECF 109; ECF 109-1 at ¶ 4). Chelsea A. Biemiller,

counsel for Defendant, explains in an attached declaration that

these “Summary Judgment Materials” were filed under seal due to

their “repeated references throughout to the personal medical

information and diagnosis of Plaintiff, which Burlington

understands Plaintiff intends to keep private and confidential.”

(ECF 109-1 at ¶ 4). Biemiller asserts that Plaintiff’s medical

information for which she has a legitimate privacy interest is

sensitive and confidential, will be publicly disclosed absent

the Court granting the pending motion, and cannot be protected

by less restrictive means due to the repeated references to her

medical information throughout. (Id. at ¶¶ 6-9).

The parties have also filed an index stating that the

materials sought to be sealed contain highly sensitive personal

and medical information, Plaintiff’s privacy rights would be

undermined if unredacted materials were made available on the

docket, and any alternative to sealing “would not provide the

protections required to prevent such information from public

disclosure.” (ECF 109-2).

The Court does not dispute Plaintiff’s legitimate privacy

interest in her medical information. As stated above, Judge

Skahill has sealed the exhibit attached to Plaintiff’s amended

complaint containing details of her disabilities, (ECF 48), and

thus the confidentiality of that information is the law of the

case. The Court notes, however, that Judge Skahill’s order was

limited to the attachment to the second amended complaint and it

was apparently important to Judge Skahill that Plaintiff

consolidated all of the sensitive medical information into a

single exhibit, enabling the second amended complaint to be

otherwise accessible to the public. (Id. at 4-5).

These considerations in mind, this Court has denied motions

to seal that it has deemed overly broad, see J.A. v. Monroe Twp.

Bd. of Educ., Nos. 1:20-cv-09498 & 1:21-cv-06283, 2023 WL

5451032, at *14 (D.N.J. Aug. 24, 2023), and will do so here.

Many of the exhibits sought to be sealed by the instant motion

to do not make reference to any specific medical condition of

Plaintiff, (ECF 95-2; ECF 95-4; ECF 95-5; ECF 95-7; ECF 95-8;

ECF 95-9; ECF 95-10; ECF 95-11; ECF 95-12; ECF 95-13; ECF 95-14;

ECF 95-16; ECF 95-17; ECF 95-18; ECF 95-20; ECF 95-21; ECF 95-

30; ECF 95-31; ECF 95-32; ECF 95-35; ECF 95-36), and it is

unclear to the Court how Plaintiff’s legitimate privacy interest

is advanced by their sealing. These documents are relevant to

Plaintiff’s claims and Defendant’s defenses. The Court is

further unpersuaded that documents referencing Plaintiff’s

medical information such as briefs and transcripts cannot be

redacted in a manner that appropriately balances Plaintiff’s

privacy with the public’s right to access.

Because the Court concludes that the parties’ motion seeks

sealing beyond what is necessary to protect the identified

privacy interest at stake, their motion will be denied. See

Medwell, LLC v. Cigna Corp., No. 20-cv-10627, 2020 WL 7694008,

at *4 (D.N.J. Dec. 28, 2020) (“A motion to seal is overbroad

where the moving party’s interest ‘can be adequately served by

filing a more narrowly tailored’ motion to seal.” (quoting Bock

v. Pressler & Pressler, LLP, No. 11-07593, 2014 WL 1233039, at

*3 (D.N.J. Mar. 25, 2014))). The parties shall have thirty days

to file a renewed motion with copies of the relevant materials,

redacted or unredacted to the extent necessary to protect

Plaintiff’s stated privacy interest.

IV. Conclusion

For the reasons stated above, Defendant’s motion for

summary judgment, (ECF 94), will be granted in part and denied

in part and the parties’ motion to seal, (ECF 109), will be

denied without prejudice. Plaintiff’s lone remaining claim will

be Title VII hostile work environment. The parties shall have

thirty days to file a renewed motion to seal.

An order consistent with this opinion will be entered.

Date: February 29, 2024 s/ Noel L. Hillman

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