# CUNNINGHAM v. BURLINGTON COAT FACTORY WAREHOUSE CORPORATION

> District Court, D. New Jersey · February 29, 2024

URL: https://www.frixlaw.com/law-library/cases/10278290

## Case

- **Court:** District Court, D. New Jersey
- **Decided:** February 29, 2024
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10278290

## How later opinions describe it (automated extraction)

- finding that poor performance – as documented by year-end reviews, alerts, and a formal warning – constituted a legitimate, non-discriminatory reason for termination

## Opinion text

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.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10278290. Public record. Not legal advice.