DIAMOND v. MJH LIFE SCIENCES

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

FRANCIS P. DIAMOND,

Plaintiff,

Civil Action No. 22-05368 (RK) (RLS)

v.

OPINION

MJH LIFE SCIENCES,

Defendant.

KIRSCH, District Judge

THIS MATTER comes before the Court on Defendant MJH Life Sciences’s

(“Defendant”) Motion for Summary Judgment. (ECF No. 27.) Plaintiff Francis P. Diamond

(“Plaintiff”) filed an opposition to the Motion, (ECF No. 32), and Defendant replied, (ECF No.

35). The Court has considered the parties’ submissions and resolves the matter without oral

argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the reasons

set forth below, Defendant’s Motion for Summary Judgment is GRANTED.

I. BACKGROUND

a. Factual Background

This matter stems from an employment dispute regarding Plaintiff’s termination from

Defendant’s employ in February 2022. Plaintiff was hired by Defendant to work as the Managing

Editor of an online and print magazine, Infection Control Today. The thrust of Defendant’s

arguments in favor of summary judgement is that Plaintiff’s termination was the result of

Plaintiff’s inappropriate conduct towards his manager, Ms. Alexandra Ward Karas, (“Ms. Karas”).

(See generally, “Def. Br.,” ECF No. 28.) Plaintiff disagrees and argues that his termination was

the result of age and disability discrimination by Defendant, as well as retaliation by Defendant

for actions undertaken by Plaintiff in connection with alleged age bias and a disability

accommodation. (See generally, “Pl. Br.,” ECF No. 32-2.)

The undisputed factual circumstances surrounding this matter are set forth in the parties’

respective Statement and Counterstatement of Facts in accordance with Local Civil Rule 56.1.1

(See “Def. SOF,” ECF No. 28-1; “Pl. C-SOF,” ECF No. 32 at 1–16.) Any disagreements among

the parties as to a fact or characterization are noted herein.2

i. Plaintiff’s Hiring and Disclosure of Disability

Plaintiff was hired by Defendant in November 2019 to work as the Managing Editor of an

online and print magazine, Infection Control Today. (Def. SOF ¶¶ 1–2; Pl. C-SOF ¶ 2.) Plaintiff

was sixty-two (62) years old when he was hired. (Pl. C-SOF ¶ 1.) Prior to being hired, Plaintiff

had worked in publishing for more than 30 years. (Id. ¶ 3.)

During the hiring process, Plaintiff was interviewed by Ms. Karas, who later became

Plaintiff’s manager.3 (Def. SOF ¶ 3; Pl. C-SOF ¶ 2.) Shortly after Plaintiff was hired, he informed

Ms. Karas that he suffered from depression. (Def. SOF ¶ 6; Pl. C-SOF ¶ 7.) Since at least 2011,

1 Both parties also provided a number of certified exhibits with their submissions. (See Decl. of Michael L.

Fialkoff (“Fialkoff Decl.”), ECF No. 28-2; Cert. of William J. Fox (“Fox Cert.”), ECF No. 32-1 (exhibits),

ECF No. 32-4 (counsel certification).)

2 The parties also submitted responses to each other’s respective Statement and Counterstatement of Facts.

(See “Def. R-SOF,” ECF No. 35-1; “Pl. R-SOF,” ECF No. 32 at 16–25.) The Court notes that Plaintiff

denies aspects of Defendant’s Statement of Facts without pointing to any record evidence in support of its

denials. (See, e.g., Pl. RSOF ¶ 43, 46, 52, 63.) Federal Rule of Civil Procedure 56(c)(1) requires that a party

“asserting that a fact cannot be or is genuinely disputed must support the assertion by . . . citing to particular

parts of materials in the record . . . or showing that the materials cited do not establish the absence or

presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the

fact.” Fed. R. Civ. P. 56(1); see Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 306 (3d Cir. 2004) (“Under

Federal Rule of Civil Procedure 56(e), when a party has filed a motion for summary judgment, ‘an adverse

party may not rest upon the mere allegations or denials of the adverse party’s pleading, but the adverse

party’s response, by affidavits or as otherwise provided in this rule, must set forth specific facts showing

that there is a genuine issue for trial.’”). Therefore, the Court will rely on Defendant’s Statement of

Undisputed Material Facts where Plaintiff’s denials in response are unsupported.

3 At the time of Ms. Karas’s deposition on September 21, 2023, she was thirty-four (34) years old. (Pl. C-

SOF ¶ 2.)

Plaintiff had suffered from severe anxiety and depression, triggered by his wife’s cancer diagnosis

and his daughter’s leaving for college.4 (Pl. C-SOF ¶¶ 1, 4.) Plaintiff treats his anxiety and

depression with Xanax and Wellbutrin, as well as quarterly counseling sessions with his primary

care physician, Dr. Catherine Spratt Turner. (Pl. C-SOF ¶¶ 5–6.)

Plaintiff testified at his deposition that he told Ms. Karas, “I battle depression; and if for

some reason it seems that I am misfiring or not interacting, just something not quite right, please

feel free to take me aside and point that out to me and I will make the necessary adjustments; even

if that’s just to call it a day and try again tomorrow.” (“Pl. Tr.,” Fox Cert. at Ex. 2, at 39:3–9.)

Plaintiff also testified that he “think[s]” he mentioned his depression to Ms. Karas “at least five

times in e-mails or Teams messages,” though he did not know for sure. (Pl. Tr. at 118:9–20.) Ms.

Karas testified at her deposition that Plaintiff “mentioned he had a temper that he would try to

control, and [that she] would always let him know when [she] felt his behavior was out of line.” 5

(“Karas Tr.,” Fox Cert. at Ex. 3, at 62:14–20.)

ii. Plaintiff’s Work-From-Home Requests

Defendant’s employees, including Plaintiff, worked from home at the outset of the

COVID-19 pandemic. (Def. SOF ¶¶ 26, 31; Pl. C-SOF ¶ 9.) In August 2020, Plaintiff submitted

to Defendant a note from Dr. Spratt Turner, which stated in part, “[d]ue to the pandemic and given

[Plaintiff’s] age and underlying medical conditions he is considered at risk for contracting Corona

Virus. It is my recommendation that he continue to work from home until further notice.” (Fialkoff

4 Plaintiff’s wife passed away in 2014. (Pl. C-SOF ¶ 4.)

5 Ms. Karas testified that she could not “recall a single conversation where [Plaintiff] and [she] ever

discussed a disability,” (Karas Tr. at 52:8–9), and that she “did not know” that Plaintiff suffered from severe

anxiety and depression during his employment with Defendant, (Karas Tr. at 53:6–9). Defendant has noted

that for purposes of this motion it will admit “that Plaintiff told Ms. Karas about his diagnosis shortly after

he was hired.” (Def. R-SOF ¶ 7.)

Decl. at Ex. M.) In November 2020, Plaintiff made a request to Defendant for “permanent work-

at-home status,” copying Ms. Karas on his request. (Pl. C-SOF ¶ 30; Fox Cert. at Ex. 4.) He

attached another note from Dr. Spratt Turner, which reiterated her belief that Plaintiff’s “age and

underlying medical conditions” put him at-risk for contracting coronavirus. (Fox Cert. at Ex. 4.)

Five months later, Plaintiff e-mailed Ms. Shari Lundenberg, (“Ms. Lundenberg”),

Defendant’s Human Resources Director, copying Ms. Karas, and asked Ms. Lundenberg to

“reconfirm [her] acquiescence to [his] earlier request that [he] be granted permanent work-at-home

status. [His] supervisor, [Ms. Karas], has said that she has no problem with this.” (Fox Cert. at Ex.

5; Pl. C-SOF ¶ 32.) After Ms. Lundenberg responded and let Plaintiff know that Defendant would

be “reviewing any requests” and would get back to him, Plaintiff followed up with “documentation

that [Ms. Lundenberg could] use in [her] review,” again copying Ms. Karas on the e-mail. (Fox

Cert. at Ex. 5.) He attached another note from Dr. Spratt Turner, which read, “I am writing on

behalf of [Plaintiff] who is under my medical care. I have been treating him for severe anxiety and

depression since 2011.” (Pl. C-SOF ¶ 34.) Ultimately, Plaintiff was permitted to work from home

from the outset of the COVID-19 pandemic until his termination nearly two years later. (Def. SOF

¶ 31.) Ms. Karas testified that no other employee she managed had ever “asked for an

accommodation or was receiving an accommodation,” (Pl. C-SOF ¶ 53), but that she and Plaintiff

“had discussed his work from home situation” and Defendant was “more than happy to allow that

given the fact that he was disruptive.” (Karas Tr. 63:19–23.)

iii. Difficulties Between Plaintiff and Ms. Karas

Ms. Karas testified that while Plaintiff worked for Defendant, he “got his work done,” and

was never placed on a performance improvement plan.6 (Karas Tr. at 36:2–9.) However, Ms. Karas

6 Plaintiff also received pay raises and bonuses from Defendant in 2020 and 2021. (Pl. C-SOF ¶ 11.)

testified that when employees began working from home during the COVID-19 pandemic, “there

started to be instances where [Plaintiff’s] behavior would veer . . . [she] noticed that he would have

these outbursts, angry outbursts, on more than one occasion, mostly in response to any sort of

constructive feedback that [she] would give him, and that would happen periodically.” (Karas Tr.

at 44:15–45:12.) Plaintiff admitted that he could “get irritable sometimes” and “sometimes”

directed his irritability at Ms. Karas. (Pl. Tr. at 38:6–12.) The parties’ Statement and

Counterstatement of Facts detail a number of occasions evidencing difficulties between the pair,

as described in detail below.

In August 2020, Ms. Karas e-mailed Plaintiff a “[g]eneral note about copy,” writing, “Lots

of AMA numeral issues and mixed capitalization in headlines . . . numbers should be numerals,

not spelled out. Too late in the game to go through now, but just keep in mind for copy moving

forward please.” (Fialkoff Decl. at Ex. G.) Plaintiff responded the next morning, writing as if he

were Ms. Karas:

Hi Frank.

I just wanted to drop a quick note to you to thank you for all the hard

work and dedication that you’ve exhibited over the last few months

in turning a moribund publication around and breathing some life

into it. You work many hours, and you are an excellent editor and

writer. Circumstances have forced me to throw you into the deep

end time and again, and you’ve managed to produce a quality

product. There were some mistakes that I found in the current issue,

but those would have been snagged if I had had the time to do my

editing to it sooner. That’s why we usually have more than one

editor go over copy before it’s put in pages. I do try to keep in mind

that you’re a one-man band, but you’ve exhibited marvelous grace

under pressure. That has not gone unnoticed.

Cordially,

Allie.

(Id.) Plaintiff testified that he was pretending to be Ms. Karas to “show[] her the e-mail that [he

thought he] deserved to have gotten from her.” (Pl. Tr. at 51:25–52:4.) Plaintiff then sent Ms.

Karas a Microsoft Teams message stating, “[a]bout your notes to me on the ICT issue? Could you

be any more of an insufferable know-it-all? I work my ass off for you and I get a note like that?”

(Def. SOF ¶ 13; Fialkoff Decl. at Ex. H.) (emphasis added.) Plaintiff testified that he and Ms.

Karas then discussed his communications, and “she more or less said that I was being disrespectful

and I said I don’t think I was and we left it at that.” (Pl. Tr. at 53:11–14.) He later “thought about

it” and sent Ms. Karas an apology because he “wanted to tell her as human being to human being,

I apologize. I shouldn’t have said that to you.” (Pl. Tr. at 46:20–47:5.) Ms. Karas did not report

this incident to Human Resources and did not “have any proof” that her manager, Silas Inman,

(“Mr. Inman”), reported it, either. (Karas Tr. at 48:17–20.)

Plaintiff and Ms. Karas had the following exchange over Microsoft Teams in the summer

of 2020 or 20217 in response to Plaintiff being “asked to do things [he] wasn’t trained to do[.]”

(Pl. Tr. at 56:1–3):

Plaintiff: “OK. But I can’t know this shit by fucking osmosis.”

Ms. Karas: “I’m not sure why you’re cussing at me. It’s no big deal, as I

said. Just next time, let’s get into a routine of sending the content closer to

the email send date. If anything, it’s annoying that they set it up so early.”

Plaintiff: “OK. Apologies. I wasn’t cursing at you, but at the situation.”

Ms. Karas: “There’s no issue here at all. I was just asking if we can send

content a little later in the week even though they originate the ticket so

early.”

(Fialkoff Decl. at Ex. J.)

Some months later, on November 5, 2021, Plaintiff and Ms. Karas were e-mailing about

Plaintiff’s Internet troubles on a loaner laptop. (Fialkoff Decl. at Ex. K.) In response to Ms. Karas

letting Plaintiff know there was “not much else [she] could do,” Plaintiff replied, “It’s not your

7 Plaintiff testified he could not remember what year the exchange occurred. (Pl. Tr. at 57:3–6.)

fault at all. I’m pissed off at the situation. [. . .] All I want to do is the best job I can do but modern

corporations seem intent on blocking people from doing that with this sort of Mickey Mouse

bullshit. Just fix the machine. That’s not too much to ask.” (Id.)

Ms. Karas also recalled “one instance in a group setting where [Plaintiff] had another

outburst. He went on a sort of rant.” (Karas Tr. 74:21–22.) However, she did not recall specifically

what Plaintiff said. (Id. at 74:23–25 (noting “[i]t was something to do with unions”).)

On December 8, 2021, Plaintiff and Ms. Karas were messaging on Microsoft Teams

regarding the studies that the magazine was covering:

Plaintiff: “These studies. Please just shoot me.”

Ms. Karas: “These studies are what our audience is keeping up with and

reading day in and o[ut]. They’re the foundation of our site [. . .]”

Plaintiff: “[. . .] Here’s a snapshot of the top 10 articles from January, 3 of

which seem to be generated by studies. But sure, more studies. [. . .] I was

merely venting a bit. No biggie.”

Ms. Karas: “We need to be covering and commenting on what the latest

data find, across all the core concepts [. . .]”

Plaintiff: “The print editions and the website are vastly improved over the

last year. But yeah, in general more studies. I agree. I’ve worked my ass off

for you over the last two years. Anything you’ve asked me to do, I’ve done.

When I complained about the studies I was just venting a bit. Just kind of

joking. I am a little dazed by the reaction. Am I getting set for another crap

raise?”

Ms. Karas: “I think we both want the site to be as strong as it can be, and

honing in on WHO we are attracting to [the] site is of the utmost importance

here as audience data becomes more and more of a priority for our business.

I suggested some more coverage of studies/trial results, which you just

agreed with.”

Plaintiff: “‘These studies. Please just shoot me.’ BOSS: ‘LOL. Yeah, they

can be tough to handle but you’re improving and it will become second

nature eventually. Try to have fun with them. I have faith in you.’”

Ms. Karas: “It’s totally within your right to feel as though I should have

responded in a different way. The disre[spectful] message, though, is not

appropriate.”

Plaintiff: “What disrespectful message? Oh. That one. That’s called

deesculating [sic]. I have great respect for you and you know it. Please don’t

try to hang that one on me. I’m calling.”

Ms. Karas: “This conversation is not the way to respond to your manager.

We can pick this up at a later time once [we’ve] both calmed down.”

(Fialkoff Decl. at Ex. P.) Ms. Karas subsequently sent a screenshot of the messages to Mr. Inman,

writing, “It’s been a while. We were due for a [Plaintiff] blowup.” (Fox Cert. at Ex. 11.) Mr. Inman

replied, “Never a dull moment.” (Id.) Ms. Karas responded, “Batshit crazy. I’m about ready to

formally report him to HR.” (Id.)

Ms. Karas e-mailed Ms. Lundenberg that same day, writing “I’m wondering what the

recourse is for dealing with a consistently disrespectful employee. Is there any sort of disciplinary

write-up process or warning? A PIP doesn’t seem appropriate in this situation because job

performance itself is OK. It’s core values/attitude that are a consistent problem.” (Fialkoff Decl.

at Ex. Q.) The two met the next day. (Def. SOF ¶ 43.) Ms. Karas testified that she recommended

to Ms. Lundenberg that Plaintiff be terminated, and Ms. Lundenberg agreed that Defendant could

“go ahead and post a job to fill the position prior to [Plaintiff’s] termination.”8 (Karas Tr. at 72:10–

22; Lundenberg Tr. at 32:9–14 (noting the decision to terminate Plaintiff was made in December

2021).) The parties dispute who was ultimately responsible for the decision to terminate Plaintiff—

whether it was Ms. Lundenberg, (Pl. C-SOF ¶ 59), or a collaboration of Ms. Karas and Mr. Inman,

(Def. SOF ¶ 47).

8 Mr. Inman and Ms. Lundenberg both testified that the delay between the decision to terminate Plaintiff’s

employment and his actual termination was due to Defendant first wanting to find Plaintiff’s replacement.

(See “Inman Tr.,” Fialkoff Decl. at Ex. E, at 68:15–17 (“We wanted to backfill the role first.”); “Lundenberg

Tr.,” Fox Cert. at Ex. 6, at 33:19–23 (“We were looking for a replacement.”).)

iv. Plaintiff’s Age-Related Concerns

Defendant required all its employees to complete a self-evaluation Individual Development

Plan, (“IDP”). (Def. SOF ¶ 52.) Plaintiff completed an IDP in the spring of 2020 (“2020 IDP,”

Fialkoff Decl. at Ex. R), and another IDP at the end of 2021, (“2021 IDP,” Fialkoff Decl. at Ex S).

(Def. SOF ¶ 51.) Relevant to the instant matter, the IDP form asked questions regarding “[c]areer

[a]spirations,” including “[s]hort-term goals (1-2 years): What do you need to accomplish to take

your performance to the next level? What are your professional development goals for the next 1-

2 years?” and “Long-term goals (3-5 years): What are your professional development/career

aspirations (where do you want to be) in the next 3-5 years?” (2020 IDP at 1; 2021 IDP at 1.) In

his 2020 IDP, Plaintiff’s responses were fairly standard, with statements like, “[I want] [t]o make

Infection Control Today the publication that those on the frontlines of infection control and

prevention turn to . . .,” and “[I] would like to expand ICT’s readership . . .” (2020 IDP at 1.)

In his 2021 IDP, Plaintiff’s responses, while still generally innocuous, were prefaced by

Plaintiff’s views on having to fill out the IDP at his age. For example, in response to the first

question about his short-term goals, Plaintiff started out by writing, “First, I’d like to go on record

as saying this Individual Development Plan is geared for an age cohort of which I am not a part. I

will give it my best shot, though.” (2021 IDP at 1.) Throughout much of the remainder of the 2021

IDP, Plaintiff prefaced his responses in a similar fashion, writing things like “Again, this is not a

relevant question for where I am in my career,” and “Again, not really relevant for someone in my

age group,” and “[F]orgive me for sounding like a broken record, this is not really relevant for

someone at my stage in my career.” (2021 IDP at 1–2.)

Plaintiff testified that his “feeling about [the IDP] was it was geared to people who were a

lot younger than [he was] . . . ,” (Pl. Tr. at 156:22–25), and that “you don’t need to give an IDP to

people 62 years old along these lines. It should be a different type of IDP[.]” (Pl. Tr. at 158:23–

159:2.) Of note, Ms. Karas did not review Plaintiff’s 2021 IDP until after the decision to seek a

replacement for his position had already been made. (Def. SOF ¶ 63.)

In terms of other concerns Plaintiff raised, Plaintiff testified that Ms. Karas once told him

“anybody under 40 would not know what you’re talking about” when Plaintiff referred to himself

as a “Luddite.” (Pl. Tr. at 145:13–25.) Another time, Ms. Karas told him “nobody in my generation

does calling,” in response to Plaintiff telling Ms. Karas she would have to give someone a phone

call in order to reach them. (Id. at 146:2–13.) Plaintiff testified that he “didn’t at the time take

offense [to these interactions], because of banter.” (Id. at 145:13–17.)

v. Plaintiff’s Termination

Plaintiff was advised he was being terminated on February 11, 2022. (Def. SOF ¶ 48.) He

was sixty-four (64) years old. (Def. SOF ¶ 49.) Plaintiff was not provided a written explanation

detailing the reason behind his termination, (Pl. C-SOF ¶ 71), and Ms. Karas testified that Plaintiff

was not given advance notice of his termination. (Pl. C-SOF ¶ 54.) Plaintiff’s replacement, Ms.

Tori Whitacre, was officially hired on February 14, 2022. (Fox Cert. at Ex 12.) Ms. Whitacre was

fifty-one (51) years old, and she was permitted to work from home. (Def. SOF ¶¶ 50, 74; Pl. R-

SOF ¶ 74.)

b. Procedural Background

On August 30, 2022, Plaintiff filed the subject action in the Superior Court of New Jersey,

Law Division, Middlesex County. (See ECF No. 1 at 6–12.) Plaintiff asserts three causes of action:

age discrimination in violation of the New Jersey Law Against Discrimination (“NJLAD”) (Count

I); disability discrimination in violation of the NJLAD (Count II); and retaliation in violation of

the NJLAD (Count III). (See id.)

Defendant removed this action to federal court on September 1, 2022.9 (See ECF No. 1.)

Following the close of discovery, Defendant filed a Motion for Summary Judgment, which is now

pending before this Court. (ECF No. 27.) Plaintiff opposed Defendant’s motion, (“Pl. Br.,” ECF

No. 32-2. and Defendant replied, (“Def. Reply,” ECF No. 35).

II. LEGAL STANDARD

a. Federal Rule of Civil Procedure 56

Federal Rule of Civil Procedure 56 provides that the Court should 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). The Court must “view[] the facts in

the light most favorable to the party against whom summary judgment was entered.” Marino v.

Indus. Crating Co., 358 F.3d 241, 247 (3d Cir. 2004) (citing Celotex Corp. v. Catrett, 477 U.S.

317, 322–23 (1986)). A “material fact” is one that “might affect the outcome of the suit under the

governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A “genuine dispute”

about a fact exists “if the evidence is such that a reasonable factfinder could return a verdict for

the nonmoving party.” Id. “In considering a motion for summary judgment, a district court may

not make credibility determinations or engage in any weighing of the evidence; instead, the

nonmoving party’s evidence ‘is to be believed and all justifiable inferences are to be drawn in his

favor.’” Marino, 358 F. 3d at 247 (quoting Anderson, 477 U.S. at 255).

The party moving for summary judgment has the initial burden of establishing its right to

summary judgment. See Celotex Corp., 477 U.S. at 323. To show that a material fact is not

9 This case was initially assigned to the Honorable Peter G. Sheridan, USDJ (ret.). Thereafter, the Court

considered a letter from Defendant with respect to whether complete diversity existed for purposes of

subject matter jurisdiction. (ECF No. 30 (citing Park v. Tsiavos, 165 F. Supp. 3d 191, 199 (D.N.J. 2016)).)

It appears Judge Sheridan was satisfied with Defendant’s explanation, as his next order was to re-set the

return date to allow the Motion for Summary Judgment to be fully briefed. (ECF No. 34.)

genuinely disputed, it “must . . . cit[e] to particular parts of materials in the record, including

depositions, documents, electronically stored information, affidavits or declarations, stipulations

(including those made for purposes of the motion only), admissions, interrogatory answers, or

other materials.” Fed. R. Civ. P. 56(c)(1)(A). The moving party may also meet its burden by

“showing that the materials cited do not establish the absence or presence of a genuine dispute, or

that an adverse party cannot produce admissible evidence to support the fact.” Fed. R. Civ. P.

56(c)(1)(B); see also Celotex Corp., 477 U.S. at 322–23 (“[W]ith respect to an issue on which the

nonmoving party bears the burden of proof . . . the burden on the moving party may be discharged

by ‘showing’—that is, pointing out to the district court—that there is an absence of evidence to

support the nonmoving party’s case.”).

Once the movant meets its threshold burden under Rule 56, the non-moving party must

present evidence to establish a genuine issue as to a material fact. See Anderson, 477 U.S. at 248;

see also Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986) (the

non-movant “must do more than simply show that there is some metaphysical doubt as to the

material facts.”). Summary judgment should be denied “[i]f reasonable minds could differ as to

the import of the evidence.” Anderson, 477 U.S. at 250–51.

b. McDonnell Douglas Framework

NJLAD claims are analyzed under the three-step burden shifting test laid out in McDonnell

Douglas Corp. v. Green, 411 U.S. 792 (1973). See Tourtellotte v. Eli Lilly & Co., 636 F. App’x

831, 841 (3d Cir. 2016) (collecting cases). Under this test, a plaintiff must “carry the initial burden

under the statute of establishing a prima facie case of [unlawful] discrimination,” or alternatively,

a prima facie case of retaliation. Fuentes v. Perskie, 32 F.3d 759, 763 (3d Cir. 1994) (quoting

McDonnell Douglas, 411 U.S. at 802).

If the plaintiff establishes a prima facie case of discrimination or retaliation, “the burden

of production shifts to the defendant to articulate some legitimate, nondiscriminatory reason for

the employee’s rejection.” Id. at 763 (emphasis in original). This reason, however, “need not . . .

actually motivate[] the [employment] decision.” Kautz v. Met-Pro Corp., 412 F.3d 463, 465 (3d

Cir. 2005) (quoting Stanziale v. Jargowsky, 200 F.3d 101, 105 (3d Cir. 2000)) (brackets in

original). This is because “throughout this burden-shifting paradigm, the ultimate burden of

proving intentional discrimination always rests with the plaintiff.” Fuentes, 32 F.3d at 763.

Moreover, the Third Circuit has described the employer’s responsibility in the second-prong as a

“light burden.” Id.

If the employer proffers “evidence which, taken as true, would permit the conclusion that

there was a nondiscriminatory reason for the unfavorable employment decision,” the burden shifts

back to the plaintiff to demonstrate “by a preponderance of the evidence that the employer’s

explanation is pretextual.” Id. The plaintiff “bears the final burden to demonstrate . . . through

evidence that the [employer’s] provided rationale is false or that the real reason for the adverse

action was discriminatory or retaliatory animus.” Valente v. PNC Bank, No. 20-01710, 2023 WL

5608943, at *4.

A plaintiff may demonstrate pretext in two ways. See Klimek v. United Steel Workers Loc.

397, 618 F. App’x 77, 80 (3d Cir. 2015). The plaintiff “must present some evidence ‘from which

a factfinder could reasonably either (1) disbelieve the employer’s articulated legitimate reasons;

or (2) believe that an invidious discriminatory reason was more likely than not a motivating or

determinative cause of the employer’s action.’” Id. (quoting Fuentes, 32 F.3d at 764). As the Third

Circuit has explained:

[T]he nonmoving plaintiff must demonstrate such weaknesses,

implausibilities, inconsistencies, incoherencies, or contradictions in

the employer’s proffered legitimate reasons for its actions that a

reasonable factfinder could rationally find them unworthy of

credence.

Keller v. Orix Credit All., Inc., 130 F.3d 1101, 1108–09 (3d Cir. 1997) (quoting Fuentes, 32 F.3d

at 765).

III. DISCUSSION

Defendant moves for summary judgment in their favor on all counts. (See generally, Def.

Br.) While Defendant assumes Plaintiff has made out a prima facie case of unlawful age

discrimination, Defendant argues that Plaintiff fails to make out a prima facie case of unlawful

disability discrimination and retaliation under the NJLAD. However, Defendant argues that even

assuming Plaintiff has been able to make out a prima facie case on all counts, Defendant has set

forth a legitimate, non-discriminatory reason for Plaintiff’s termination: repeated improper and

unprofessional conduct towards his manager, Ms. Karas. Further, Defendant claims that Plaintiff

has failed to demonstrate this reason is pretextual, which entitles Defendant to summary judgment

on all counts.

The Court will address each of Plaintiff’s claims of discrimination and retaliation in turn.

a. Age Discrimination

In order to make out a prima facie case of age discrimination under the McDonnell Douglas

framework, Plaintiff must demonstrate that he “(1) is a member of the protected class, (2) was

qualified for the position held, (3) suffered an adverse employment action, and (4) ‘ultimately was

replaced by a person sufficiently younger to permit an inference of age discrimination.’” Sgro v.

Bloomberg L.P., 331 F. App’x 932, 938 (3d Cir. 2009) (quoting Monaco, 359 F.3d at 300).

Defendant assumes Plaintiff has made out the prima facie case.10 (See Br. at 22.) However,

Defendant contends it has sufficiently articulated a legitimate, non-discriminatory reason for

Plaintiff’s termination—Plaintiff’s inappropriate conduct towards his manager, Ms. Karas. (Def.

Br. at 22–23.) Defendant points to multiple occasions where Plaintiff’s conduct crossed the line,

including but not limited to, when Plaintiff provocatively mimicked, in a condescending manner,

Ms. Karas by sending an imagined e-mail and Microsoft Teams message as if written from her

perspective, (Fialkoff Decl. at Exs. G, P), when Plaintiff asked Ms. Karas if she “[c]ould [] be any

more of an insufferable know-it-all,” (id. at Ex. H), and when Plaintiff sent multiple messages and

e-mails to Ms. Karas that included profanities (see, e.g., id. at Exs. H, J, K, P). Plaintiff apologized

to Ms. Karas for this conduct on multiple occasions, (see id. at Ex. J; Pl. Tr. at 47:7–11), and by

Plaintiff’s own admission, he acted “eradictly” [sic] on at least two of those occasions, (see Pl. Br.

at 11 (noting Plaintiff acted “eradictly” [sic] on the two occasions he mimicked Ms. Karas)).

Plaintiff has not raised a genuine dispute of material fact with respect to whether these incidents

took place.

Accordingly, based on these unprofessional interactions between Plaintiff and Ms. Karas,

Defendant has clearly made out a legitimate, non-discriminatory reason for its termination of

Plaintiff. Disruptive behavior, such as Plaintiff’s inappropriate conduct towards Ms. Karas, is a

legitimate, non-discriminatory reason to terminate someone’s employment. See, e.g., Magnusson

v. The Hartford, 258 F. App’x 444, 446 (3d Cir. 2007) (affirming district court’s finding that

10 The Court finds that it is likely that a reasonable factfinder would find Plaintiff made out the prima facie

case here. Plaintiff was between sixty-two (62) and sixty-four (64) years old while employed by Defendant.

(Def. SOF ¶¶ 4, 49.) Defendant has not put forth any evidence that Plaintiff was not qualified for the position

of Managing Editor of Infection Control Today, and Plaintiff obviously suffered an adverse employment

action when he was terminated on February 11, 2022. (Id. ¶ 48.) There is also no dispute that Plaintiff was

ultimately replaced by someone sufficiently younger. (See id. ¶ 50 (“Plaintiff’s replacement was 51 when

she was hired.”).)

profanity muttered during conference call satisfied employer’s “relatively light” burden to

articulate “a legitimate reason for the unfavorable employment decision”); Cruz v. Trane Inc., No.

19-07324, 2022 WL 1442158, at *10 (D.N.J. May 5, 2022) (“It is undisputed that [plaintiff] was

ultimately suspended for disruptive conduct pertaining to a conflict with one of his subordinates.”);

Lopez v. Lopez, 997 F. Supp. 2d 256, 271 (D.N.J. 2014) (“[T]he record, including [p]laintiff[’]s

deposition testimony, is replete with references to [p]laintiff[’]s disruptive conduct.”) A reasonable

factfinder would conclude that Ms. Karas reached a breaking point when the final altercation

between her and Plaintiff occurred in December 2021, wherein Plaintiff yet again messaged Ms.

Karas profanities and mimicked her in an effort to illustrate how he wanted to be spoken to.

(Fialkoff Decl. at Ex. P; see also Karas Tr. at 45:9–12 (“It started to escalate into name calling,

mocking me, using profanity directed at me, and it got to a point where I could no longer tolerate

that kind of mistreatment.”).) In Ms. Karas’s e-mail to Ms. Lundenberg following this final

altercation, she characterized Plaintiff as a “consistently disrespectful employee,” with “core

values/attitude” being a “consistent problem.” (Fialkoff Decl. at Ex. Q.) Here, Defendant has put

forth sufficient evidence for a reasonable factfinder to conclude that Plaintiff’s inappropriate

conduct towards Ms. Karas was a legitimate, nondiscriminatory reason for his discharge.

Turning to pretext, Plaintiff asks the Court to make a number of illogical leaps to find a

genuine dispute of material fact with respect to alleged discriminatory animus by Defendant. First,

Plaintiff argues Ms. Karas “adamantly dismissed Plaintiff’s complaints of age bias in the [2021]

IDP and did not take them seriously.” (Pl. Br. at 13.) Plaintiff seems to be suggesting that Ms.

Karas’s purported “dismissal” of Plaintiff’s 2021 IDP responses somehow leads to an inference of

underlying animus by Defendant. However, Plaintiff’s argument misstates Ms. Karas’s reaction to

Plaintiff’s 2021 IDP. Ms. Karas explained that she did not take Plaintiff’s IDP responses to be

raising age discrimination because, “just the year prior [Plaintiff] filled out this exact document

with no problem. This one is filled with a lot of sarcasm and a lot of inappropriate, in my opinion,

tone.” (Karas Tr. at 85:4–11.) Ms. Karas also testified, “[a]t the time this was received, we had

already posted [Plaintiff’s] job, so we were already clear that we were terminating him. If anything,

when I received this I was disappointed that he didn’t take the exercise seriously because just a

year prior he had filled this out with no problem and we actually had a constructive conversation

about his development.” (Id. at 86:1–7.)

What’s more, Ms. Karas was part of Plaintiff’s hiring process and testified she “would have

given [her] recommendation” to hire Plaintiff, which Mr. Inman “would have signed off on.”

(Karas Tr. at 29:20–23); see Young v. Hobart W. Grp., 897 A.2d 1063, 1070 (App. Div. 2005)

(noting the fact the same person who promoted plaintiff was also the person that later eliminated

plaintiff’s position “strongly counters against an inference of age discrimination”). No reasonable

factfinder could conclude that Defendant’s articulated reason for terminating Plaintiff is worthy of

disbelief, or that a more invidious reason is more likely, particularly because Plaintiff has not

established a genuine dispute of material fact with respect to the incidents between Plaintiff and

Ms. Karas that Defendant argues led to his termination.

Next, Plaintiff argues that the ages of Ms. Karas, Ms. Lundenberg, and Mr. Inman lead to

an inference of age discrimination, without pointing to any law in support of this proposition. At

the time of their depositions, Ms. Karas was thirty-four (34) years old, Ms. Lundenberg was fifty-

one (51) years old, and Mr. Inman was thirty-seven (37) years old. (Pl. C-SOF ¶¶ 2, 58, 68.)

Plaintiff also argues, without citing to any record evidence, that “[t]he majority of Plaintiff’s

coworkers were 10 to 35 years younger than Plaintiff.” (Pl. Br. at 13; see also Fox Cert. at Ex.1.)

However, the simple fact that Plaintiff’s superiors and co-workers were younger than him does not

support a finding of pretext. See Britton v. Oil City Area Sch. Dist., 744 F. App’x 53, 57 (3d Cir.

2018) (noting “[t]hat the remaining employees were younger is not probative of [Defendant’s]

motive”).

Finally, Plaintiff argues that Ms. Karas “may as well as called [Plaintiff] an ‘old bat’ or an

‘old cook,’” (Opp. at 13), in her December 8, 2021 exchange with Mr. Inman wherein Ms. Karas

messaged “[b]atshit crazy” after sharing a screenshot with Mr. Inman of her messages with

Plaintiff. (Fox Cert. at Ex. 11.) As Defendant correctly argues, “Plaintiff is putting words in Ms.

Karas’s mouth that she did not say.” (Def. Reply at 5.) Ms. Karas never referred to Plaintiff as

“old” in her messages with Mr. Inman. “[P]ossibilities or conjectures of pretext are insufficient to

overcome summary judgment.” Robinson v. Nat’l Med. Care, Inc., 897 F. Supp. 184, 187 (E.D.

Pa. 1995), aff’d, 77 F.3d 463 (3d Cir. 1996); see Halsey v. Pfeiffer, 750 F.3d 273, 287 (3d Cir.

2014) (“[A]n inference based upon a speculation or conjecture does not create a material factual

dispute sufficient to defeat summary judgment.”) Therefore, the Court finds that no reasonable

factfinder could conclude Defendant’s real reason for Plaintiff’s termination was age

discrimination, when such a claim would be based on Plaintiff’s pure conjecture.

While not addressed in Plaintiff’s opposition brief, Plaintiff also testified about two

additional statements by Ms. Karas that he believed could be construed as derogatory comments

about his age. First, Plaintiff testified that Ms. Karas told him “anybody under 40 would not know

what [he was] talking about” when Plaintiff referred to himself as a “Luddite.” (Pl. Tr. at 145:13–

146:1.) Another time, Ms. Karas told him “nobody in [her] generation does calling,” in response

to Plaintiff telling Ms. Karas to give someone a call. (Id. at 146:2–13.) No reasonable factfinder

could conclude that, based on these two off-hand remarks about generational differences,

Defendant’s reason for terminating Plaintiff, who evidenced significant and repeated temperament

issues, was pretextual. See, e.g., Ruggiero v. Eli Lilly & Co., No. 19-16206, 2022 WL 17082498,

at *4 (D.N.J. Nov. 18, 2022) (“But even comments that improperly reference . . . age are not

necessarily enough to sustain an age discrimination claim under the NJLAD if they do not rise to

the level of severe or pervasive.”); Guinan v. Boston Coll., No. 05-10805, 2006 WL 2987045, at

*7–8 (D. Mass. Sept. 29, 2006) (“No reasonable jury could conclude that [Defendant] engaged in

age discrimination based upon his suggestion that [Plaintiff]’s poor performance could be a result

of ‘generational differences.’”).

Plaintiff’s arguments in favor of a finding of pretext fail to contest any of the clearly

objectionable conduct, attitude, and erratic demeanor that Defendant articulated in setting forth its

legitimate reason for Plaintiff’s termination. Further, Plaintiff fails to “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.’” Fuentes, 32 F.3d at 765 (quoting Ezold v. Wolf, Block, Schorr & Solis-

Cohen, 983 F.2d 509, 528 (3d Cir. 1992) (emphasis in original)). Therefore, because no reasonable

factfinder could conclude based on the record that Defendant’s reason for Plaintiff’s termination

was a pretext for age discrimination, Defendant’s Motion for Summary Judgment with respect to

Plaintiff’s age discrimination claim under the NJLAD is granted.

b. Disability Discrimination

To establish a prima facie case of disability discrimination, the McDonnel Douglas

framework requires Plaintiff to demonstrate that:

(1) [he] is the member of a protected class, specifically that [he] has or is

perceived to have a disability as defined by the NJLAD;

(2) [he] was otherwise qualified to perform the essential functions of the

job, with or without reasonable accommodation by the employer;

(3) [he] experienced an adverse employment action; and

(4) the employer sought someone else to perform the same work, or did fill

the position with a similarly-qualified person.

Kancherla v. Lincoln Tech. Inst., Inc., No. 14-7784, 2018 WL 922126, at *14 (D.N.J. Feb. 15,

2018) (quoting Tourtellotte, 636 Fed. App’x. at 848).

Defendant argues that Plaintiff cannot make out a prima facie case of disability

discrimination because he cannot establish his termination was caused by his disability. (Def. Br.

at 28–30); see, e.g., Gross v. Tris Pharma, Inc., 2023 WL 3597723, at *4 (D.N.J. May 22, 2023)

(noting third element of a disability discrimination claim requires a showing plaintiff a “has

suffered an adverse employment action because of that disability”); Rich v. State, 294 F. Supp. 3d

266, 278 (D.N.J. 2018) (framing third element as “[p]laintiff suffered an adverse employment

action because of the handicap or disability”).

Defendant assumes as true for purposes of this Motion that Plaintiff told Ms. Karas about

his depression (which, along with his severe anxiety, make up his disability) shortly after he was

hired. (Def. Br. at 28–29.) As such, Defendant argues that because Plaintiff was not terminated for

nearly two years, Plaintiff cannot establish a causal connection between Defendant learning of his

disability and his termination. (Id. at 29.) It is true that courts consider “temporal proximity” in

assessing whether a “causal link” exists between a disability and an adverse employment decision.

See Gross, 2023 WL 3597723, at *5 (“Courts ‘consider “a broad array of evidence” in determining

whether a sufficient causal link exists to survive a motion for summary judgment,’ including

temporal proximity, antagonistic comments, discriminatory animus, and inconsistencies in an

employer's explanations for termination, among other things.” (quoting LeBoon v. Lancaster

Jewish Cmty. Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007))). Here, a significant length of time—

two years—passed between Plaintiff initially telling Ms. Karas about his disability and his

termination. Even if Ms. Karas were to have only learned of Plaintiff’s disability when he sought

to reconfirm his work-from-home accommodation in April 2021, (see Fox Cert. at Ex. 5), her

knowledge of Plaintiff’s disability still would not be sufficiently suggestive to create an inference

of causation when Plaintiff’s termination did not occur until February 2022. See Bazargani v.

Haverford State Hosp., 90 F. Supp. 2d 643, 654 (E.D. Pa. 2000), aff'd, 33 F. App’x 647 (3d Cir.

2002) (“Nor does Dr. Altenor’s knowledge of plaintiff's [EEOC charge] (approximately seventeen

months prior to the adverse employment actions), by itself, establish a causal connection because

of its remoteness in time.”)

In addition, Plaintiff has not pointed to record evidence that would otherwise support an

inference of causality. Plaintiff did not testify to any derogatory comments made by Ms. Karas

with respect to his disability, (see Def. SOF ¶ 69; Pl. R-SOF ¶ 69), nor did Plaintiff point out any

inconsistencies in Defendant’s articulated reason for terminating Plaintiff beyond attacking Ms.

Karas and Ms. Lundenberg’s credibility at their depositions, (see Pl. Br. at 6–8), which the Court

addresses below. Further, Defendant permitted Plaintiff to work from home from the beginning of

the COVID-19 pandemic through his termination date—the only disability accommodation he

requested. (Def. SOF ¶ 31.) Therefore, the Court finds that a reasonable factfinder could not

conclude that Plaintiff has made out a prima facie case of disability discrimination given the

tenuousness of a causal connection between Plaintiff’s disability and his termination.

Even assuming, arguendo, that Plaintiff made out a prima facie case, the Court has already

found that Defendant articulated a legitimate, non-discriminatory reason for Plaintiff’s

termination. Nevertheless, in an effort to establish a genuine dispute of material fact with respect

to pretext, Plaintiff puts forth a number of unconvincing theories.

First, Plaintiff argues that “[t]o cover up the real reason that Plaintiff was discharged,

Defendant concocted the idea that its key managers would deny knowing that Plaintiff had a

disability.” (Pl. Br. at 9.) Plaintiff points to portions of Ms. Karas’s and Ms. Ludenberg’s

deposition testimonies in which they neither recall discussing Plaintiff’s anxiety and depression

nor recall having reviewed Plaintiff’s note from Dr. Spratt Turner that was attached to his work-

from-home accommodation request and indicated that Plaintiff had severe anxiety and depression.

(Id. at 6–8.) Ms. Karas testified that she did not discuss Plaintiff’s work-from-home request with

Ms. Lundenberg, and she did not recall Ms. Lundenberg contacting her with respect to permitting

Plaintiff to work from home. (Karas Tr. at 61:17–24.)

More generally, she testified that she could not “recall a single instance of ever having any

sort of conversation about a disability with [Plaintiff]” though Plaintiff had “mentioned he had a

temper that he would try to control, and [that she] would always let him know when [she] felt his

behavior was out of line.” (Id. at 62:10–20.) Similarly, Ms. Lundenberg testified that she did not

recall reading Dr. Spratt Turner’s note. (Lundenberg Tr. at 13:7–10.) She also testified that she

never discussed Plaintiff’s anxiety and depression with Ms. Karas. (See Lundenberg Tr. at 12:13–

16.)

Plaintiff argues that “[a] jury will not believe that Ms. Lundenberg did not open the

attachment with the email” that contained Dr. Spratt Turner’s note, and “when Ms. Karas was

cc’ed on these emails, a jury would expect that she would open the attachment.” (Pl. Br. at 10.)

Plaintiff is clearly attempting to cast doubt by demonstrating “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[.]’”

Fuentes, 32 F.3d at 765 (quoting Josey v. John R. Hollingsworth Corp., 996 F.2d 632, 638 (3d

Cir.1993)). However, Plaintiff’s “evidence merely suggest[ing]” Ms. Lundenberg and Ms. Karas

may have seen Dr. Spratt Turner’s note “presents no serious challenge” to their credibility.11 Ball

11 To the extent Plaintiff also relies on the fact that Defendant did not have “any procedures or practices to

log and document disabled employees receiving accommodations,” (Pl. Br. at 10), as evidence of his cover-

v. Einstein Cmty. Health Assocs., Inc., 514 F. App’x 196, 202 (3d Cir. 2013). The Court notes that

both Ms. Lundenberg’s and Ms. Karas’s depositions took place over a year-and-a-half after

Plaintiff’s termination. (See Fox Cert. at Exs. 3, 6.) Thus, it is unsurprising that neither Ms. Karas

nor Ms. Lundenberg could remember with perfect recall every detail and conversation regarding

Plaintiff’s employment. Furthermore, Ms. Lundenberg testified that she was “not looking at every

single person’s [work-from-home] request under a microscope” because “[d]uring the pandemic[,]

managing 800 people and all the requests . . . not to return to office were not normal times.”

(Lundenberg Tr. at 14:20–15:1.)

Even assuming Ms. Ludenberg and Ms. Karas were aware of Plaintiff’s disability, Plaintiff

cannot point to any real evidence supporting his theory of a “cover up” by Defendant. Plaintiff’s

assertion is mere speculation. See, e.g., Dellapenna v. Tredyffrin/Easttown Sch. Dist., 449 F. App’x

209, 215 (3d Cir. 2011) (“[M]ere speculation does not create genuine issues of material fact.”);

Fitzgerald v. Nat’l R.R. Passenger Corp., (Amtrak), No. 23-2340, 2024 WL 771711, at *3 (3d Cir.

Feb. 26, 2024) (“Fitzgerald, however, relies on only his own speculation and conjecture to

demonstrate pretext, which is insufficient to defeat summary judgment.”); Williams v. Rowan

Univ., No. 10-6542, 2014 WL 7011162, at *15 (D.N.J. Dec. 11, 2014) (quoting Johnson v. Multi–

Solutions, Inc., 493 Fed. Appx. 289, 292 (3d Cir. June 28, 2012)) (“An inference based upon

speculation or conjecture does not create a material factual dispute sufficient to defeat entry of

summary judgment”).

up theory, the Court finds that there is nothing in the record to suggest Plaintiff’s request for accommodation

based on his disability was treated any differently from any other similar request by other employees of

Defendant. Ms. Lundenberg’s testimony was that Defendant “do[esn’t] have a log” with respect to

“employees who are receiving accommodation,” not that Plaintiff’s accommodation was somehow kept off

of a pre-existing log. (See Lundenberg Tr. at 17:20–25.)

The record evidence shows Ms. Karas had “no problem with” Plaintiff’s permanent work-

from-home request, and Plaintiff does not dispute this fact. (See Fox Cert. at Ex. 5.) What’s more,

the record shows that all of Plaintiff’s requests for accommodation from Defendant were granted—

Plaintiff was permitted to work from home from the outset of the COVID-19 pandemic until his

termination nearly two years later. (Def. SOF ¶ 31.) No reasonable factfinder could find pretext

based upon such a speculative, specious allegation of a cover up.

Next, Plaintiff argues that the lack of formal discipline Plaintiff received after the various

incidents between himself and Ms. Karas was actually because, “Defendant accepted this conduct

as [sic] and accommodated Plaintiff because it resulted from his disability.” (Pl. Br. at 9.) This

theory ignores clear record evidence. While Ms. Karas testified that she was “not aware of any”

written discipline given to Plaintiff while he was employed by Defendant, (Karas Tr. at 48:21–25),

the record contains numerous references to Ms. Karas informally discussing Plaintiff’s

inappropriate behavior with him. (See, e.g., Fialkoff Decl. at Ex. J (“I’m not sure why you’re

cussing at me.”), id. at Ex. P (“The disrepe[ctful] message, though, is not appropriate.”), id. (“This

conversation is not the way to respond to your manager.”); Karas Tr. at 63:9–12 (“I spoke with

[Plaintiff] on every occasion where he was disrespectful or insubordinate or condescending to me

until I could no longer tolerate the mistreatment.”).) Indeed, Plaintiff acknowledged his improper

conduct and unprofessional reactions, and apologized to Ms. Karas for his conduct on multiple

occasions. (See Fialkoff Decl. at Ex. J; Pl. Tr. at 47:7–11.) Plaintiff has not claimed he was

discriminated against because he did not receive some sort of formal disciplinary write-up, and the

Court finds that a reasonable factfinder could not conclude that the lack of formal discipline in any

way calls into doubt Defendant’s articulated reason for Plaintiff’s termination, particularly given

the numerous examples of informal discipline received by Plaintiff in the record.

To the extent Plaintiff alternatively attempts to recast his difficulties with Ms. Karas as a

by-product of his disability, the Court notes that it would have no basis to make such a finding. No

expert evidence has been submitted in this matter. See Delvecchio v. Twp. of Bridgewater, 135

A.3d 954, 964 (N.J. 2016) (noting the factfinder “is guided by the testimony of witnesses qualified

to assist it in understanding the disease or condition at issue in a given [NJLAD] case.”). What’s

more, “[t]hough an employer is prohibited from discharging an employee based on his disability,

the employer is not prohibited from discharging an employee for misconduct, even if that

misconduct is related to his disability.” Sever v. Henderson, 220 F. App’x 159, 160 (3d Cir. 2007);

see also Salley v. Cir. City Stores, Inc., 160 F.3d 977, 982 (3d Cir. 1998) (“[T]here is no evidence

that [Plaintiff’s] addiction, as opposed to his drug-related misconduct, caused Circuit City to fire

him.”); Walton v. Spherion Staffing LLC, 152 F. Supp. 3d 403, 407 (E.D. Pa. 2015) (“A survey of

federal case law supports Defendant’s argument that a disabled person can be lawfully terminated

for disability related misconduct—so long as the employer’s explanation is not a pretext for

discrimination.”).

Plaintiff himself testified at his deposition that he would “get irritable sometimes” and

“sometimes” directed that at Ms. Karas. (Pl. Tr. at 38:6–12.) He also testified that he “should not

have sent a message like” his “insufferable know-it-all” message “to anybody.” (Id. at 47:18–22.)

Further, Plaintiff admitted he knew Ms. Karas found his behavior offensive, and that at least one

communication to her was “probably over the line.” (Id. at 45:12-20, 110:21–25.) No reasonable

factfinder could find pretext based upon Plaintiff’s attempt to characterize his inappropriate,

unprofessional interactions with Ms. Karas as somehow protected as a by-product of his severe

anxiety and depression.

Finally, Plaintiff again raises Ms. Karas’s “batshit crazy” comment to Mr. Inman with

respect to her December 8, 2021 altercation with Plaintiff as evidence that he was terminated for

his disability. (Pl. Br. at 9; Fox Cert. at Ex. 11.). However, a single remark is not enough to survive

Defendant’s Motion for Summary Judgment, particularly when the rest of the record is devoid of

derogatory remarks directed at Plaintiff, and Plaintiff testified that he did not recall Ms. Karas

making any derogatory remarks regarding his disability. (See Def. SOF ¶ 69); see, e.g., Taylor v.

Amcor Flexibles Inc., 669 F. Supp. 2d 501, 511 (D.N.J. 2009), aff’d, 507 F. App’x 231 (3d Cir.

2012) (“The Court finds this to be simply a stray remark, which no reasonable jury could find

Defendant's proffered reasons to be pretextual upon.”); Affinity Healthcare Grp. Voorhees, LLC v.

Twp. of Voorhees, 624 F. Supp. 3d 494, 517 (D.N.J. 2022), aff’d, No. 22-2769, 2024 WL 195471

(3d Cir. Jan. 18, 2024) (“More than a few stray remarks cherry-picked out of a transcript of as

impressive of volume as this is required to survive Defendants’ motion for summary judgment.”)

Similar to the Court’s finding with regard to Plaintiff’s age discrimination claim, Ms. Karas’s stray

comment is insufficient to lead a reasonable factfinder to disbelieve Defendant’s articulated reason

for Plaintiff’s termination or that some sort of invidious discriminatory reason is a more likely

motivator for Plaintiff’s termination. Because no reasonable factfinder would conclude based on

the record that Defendant’s reason for Plaintiff’s termination was a pretext for disability

discrimination, Defendant’s Motion for Summary Judgment with respect to Plaintiff’s disability

discrimination claim under the NJLAD is also granted.

c. Retaliation

Lastly, Plaintiff argues that he was retaliated against by Defendant in connection with

actions he undertook pertaining to his age and his disability. In order to make out a prima facie

case for retaliation under the McDonnell Douglas framework, Plaintiff must show “(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).

The Court need not consider whether Plaintiff made out a prima facie case of retaliation,

because assuming he did, Plaintiff argues pretext by relying on arguments the Court has already

rejected. Plaintiff argues Defendant’s reason for his termination was a pretext for retaliation based

on “the same reasons set forth above regarding the argument on disability discrimination,” as well

as his prior argument that “Ms. Karas was put off by [Plaintiff’s] age bias complaints” in his 2021

IDP. (See Pl. Br. at 11, 14.) The Court has already considered but rejected those arguments as

unsupportive of a reasonable finding of pretext. Consequently, because a reasonable factfinder

could not conclude Defendant’s articulated reason for Plaintiff’s termination was a pretext for

retaliation, Defendant’s Motion for Summary Judgment with respect to Plaintiff’s retaliation claim

under the NJLAD is also granted.

IV. CONCLUSION

For the foregoing reasons, Defendant’s Motion for Summary Judgment is GRANTED on

all counts. An appropriate Order will accompany this Opinion.

ROBERT KIRSCH

UNITED STATES DISTRICT JUDGE

Dated: September 21, 2024

28