BARNES v. MONMOUTH COUNTY DIVISION OF SOCIAL SERVICES

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

BERNACINE BARNES,

Plaintiff,

Civil Action No. 18-07752 (GC) (RLS)

v.

MEMORANDUM OPINION

MONMOUTH COUNTY DIVISION OF

SOCIAL SERVICES et al.,

Defendants.

CASTNER, District Judge

THIS MATTER comes before the Court upon Defendant’s Motion for Summary

Judgment (ECF No. 115) pursuant to Federal Rule of Civil Procedure (Rule) 56. Plaintiff opposed

and Defendant replied. (ECF Nos. 118 & 121.) The Court has carefully reviewed the parties’

submissions and decides the matter without oral argument pursuant to Rule 78(b) and Local Civil

Rule 78.1(b). For the reasons set forth below, and other good cause shown, Defendant’s Motion

is GRANTED.

I. BACKGROUND

A. Procedural Background

Plaintiff Bernacine Barnes, proceeding pro se, filed her initial Complaint in New Jersey

Superior Court, Monmouth County, on February 13, 2018. (ECF No. 1 at 5.1) While she did not

set forth any specific causes of action in her original Complaint, Plaintiff referenced, among other

1 Page numbers for record cites (i.e., “ECF Nos.”) refer to the page numbers stamped by the

Court’s e-filing system and not the internal pagination of the parties.

things, civil rights violations, harassment, disability discrimination, and wrongful termination.

(See id.) Plaintiff named twenty Defendants, who thereafter removed the matter to this Court

based on federal question jurisdiction under 28 U.S.C. § 1331. (ECF No. 1 at 1-4.)

Defendants then filed a Motion to Dismiss and a Motion for Summary Judgment. (ECF

Nos. 3 & 5.) Prior to deciding those Motions on the merits, the Court granted Plaintiff leave to

amend her Complaint. (ECF No. 16.) Plaintiff thereafter filed her First Amended Complaint

(FAC),2 which asserts claims against the Monmouth County Division of Social Services (MCDSS)

and two union officials from the Communications Workers of America, AFL-CIO (CWA

Defendants), while omitting reference to any of the other previously named Defendants.3

In the FAC, Plaintiff asserts the following causes of action against MCDSS and the CWA

Defendants: violation of the Americans with Disabilities Act of 1990 (ADA), 42 U.S.C.§ 12101-

12213 (Count One against MCDSS); violation of the Age Discrimination in Employment Act of

1967 (ADEA), 29 U.S.C. § 623 (Count Two against MCDSS); violation of Title VII of the Civil

Rights Act of 1964, 42 U.S.C. § 2000e (Count Three against MCDSS); breach of duty of fair

representation (Count Four against the CWA Defendants); violation of the New Jersey

Conscientious Employee Protection Act (CEPA), N.J. Stat. Ann. § 34:19-1 (Count Five against

MCDSS); violation of the New Jersey Law Against Discrimination (NJLAD) (age) N.J. Stat. Ann.

§ 10:5-1 (Count Six against MCDSS); violation of the NJLAD (disability/handicap), N.J. Stat.

2 Plaintiff has been represented by counsel during limited parts of this case. She filed her

initial Complaint pro se, (ECF No. 1), but filed her FAC with the assistance of counsel, (ECF No.

16). Plaintiff has been proceeding pro se since her counsel withdrew on December 10, 2019. (ECF

No. 35.)

3 The Court concludes that Plaintiff abandoned her claims against the previously named

Defendants. See Thomas v. Plumeri, Civ. No. 23-20372, 2024 WL 4171417, at *1 (D.N.J. Sept.

11, 2024) (“[S]ubmission of an amended complaint effectively constitutes an abandonment of any

prior complaints filed by a plaintiff.”) (internal quotation marks and citations omitted).

Ann. § 10:5-1 (Count Seven against MCDSS); violation of the NJLAD (ancestry/descent/religion)

N.J. Stat. Ann. § 10:5-1 (Count Eight against MCDSS). (See generally ECF No. 18.)

In response to a Motion to Dismiss brought by the CWA Defendants, (ECF No. 21), the

Court dismissed Count Four of the FAC without prejudice and granted Plaintiff thirty days to

amend. (ECF Nos. 21 & 25.) Plaintiff did not amend the FAC, and the CWA Defendants were

thereafter terminated from the action. (ECF No. 29.) Accordingly, only Counts One through Three

and Five through Eight of the FAC remain as to MCDSS, the only remaining Defendant.

MCDSS filed this Motion for Summary Judgment on February 17, 2024. (ECF No. 115.)

On August 29, 2024, Plaintiff filed her Responsive Statement of Material Facts in response to the

Court’s Order. (ECF Nos. 123 & 124.)4

B. Leniency

Local Civil Rule 56.1 requires opponents of summary judgment to submit “a responsive

statement of material facts, addressing each paragraph of the movant’s statement, indicating

agreement or disagreement and, if not agreed, stating each material fact in dispute and citing to the

affidavits and other documents submitted in connection with the motion.” L. Civ. R. 56.1(a).

While MCDSS included a Statement of Material Facts with its Motion for Summary Judgment in

accordance with the local rules, (ECF No. 115-2), Plaintiff did not initially submit the required

Responsive Statement of Material Facts with her opposition brief. Given that Plaintiff is

proceeding pro se, the Court afforded her the opportunity to submit a Responsive Statement of

Material Facts that complied with the local rules. (ECF No. 123.)

4 MCDSS’s Statement of Material Facts (SMF) is at ECF No. 115-2 and Plaintiff’s

Responsive Statement of Material Facts (RSMF) is at ECF No. 123

Rather than responding to each of the fifty-five purportedly undisputed material facts set

forth by MCDSS, Plaintiff’s submission consists largely of materials copied from other sources,

including transcripts, letters, emails, and prior court filings. A substantial portion of Plaintiff’s

response includes her grievances with the Court. (See generally RSMF.) The Court identified

only four instances in which Plaintiff set forth her responses in separate numbered paragraphs and

clearly identified whether a purported fact was admitted or denied. But even in those instances,

Plaintiff’s responses do not appear to correspond to MCDSS’s Statement of Material Facts.

Compare SMF ¶ 2 (“Plaintiff was 55 years old at the time her amended complaint was filed on

August 9, 2018”) with RSMF at 29 (labeled as paragraph 2 and “disputed” and stating “Bernacine

Marie Barnes EEOC Statements. The truth of the fact. I reached out, was denied. In multitudinous

area I filed in seek of help. I refused to upset [myself] any further with pain”).

Although Plaintiff’s Responsive Statement of Material Facts is difficult to parse, the Court

is mindful that it must afford her leniency as a pro se litigant. See Bailey v. Millenium Grp. of Del.,

Civ. No. 18-1188, 2023 WL 6971541, at *2 (D.N.J. Oct. 23, 2023) (“The Court is obligated to

construe pro se filings liberally.” (citing Mala v. Crown Bay Marina, Inc., 704 F.3d 239, 244-45

(3d Cir. 2013))). Courts have extended this leniency to pro se litigants who have not complied

with Local Civil Rule 56.1. See Stewart v. Kelchner, 358 F. App’x 291, 294 n.9 (3d Cir. 2009)

(“In light of the fact that [the plaintiff] was acting pro se, we hesitate to adopt the District Court’s

approach of accepting the defendants’ statement of material facts as uncontested solely because

[the plaintiff] failed to submit a paragraph-by-paragraph response.”); see also Ramziddin v.

Speziale, Civ. No. 07-5303, 2009 WL 4827492, at *2 (D.N.J. Dec. 10, 2009) (“A court may excuse

the failure to submit a Rule 56.1 statement where there is no evidence of bad faith.”).

In light of Plaintiff’s pro se status, the Court finds it appropriate to consider Plaintiff’s

entire submission to determine whether there is a genuine dispute of material fact. See Shirden v.

Cordero, 509 F. Supp. 2d 461, 463 n.1 (D.N.J. 2007) (“[L]ack of compliance with the Local Civil

Rules has made it difficult and time-consuming for the Court to determine whether a genuine issue

of material fact exists. Nonetheless, the Court, having found no evidence of bad faith, will decide

[the] [d]efendants’ motion on its merits, relying on the facts put forth in the Final Pretrial

Order . . . ; the [p]laintiff’s answers to interrogatories; and the additional facts cited in the parties’

respective briefs.”). Even applying this deferential approach, the Court is unable to discern any

genuine dispute of material fact that would preclude it from granting summary judgement in favor

of MCDSS.

C. Facts Undisputed or Substantiated by Record Evidence5

Plaintiff is an African American woman who openly professes to be a devout Jehovah’s

witness. (SMF ¶ 3; see also ECF No. 1 ¶ 8.) Plaintiff, who was born in 1963, was 55 years old at

the time she filed her Amended Complaint. (SMF ¶¶ 1-2.) She began working as a clerk in the

Customer Care Center for MCDSS in May 1989. (Id. ¶ 4; see also ECF No. 18 ¶ 14.) Plaintiff’s

duties involved assisting Monmouth County residents with requests for cash assistance, food

stamps, emergency shelter, and housing and medical benefits. (ECF No. 18 ¶ 7.)

Plaintiff received only cost-of-living raises and no promotions while employed by

MCDSS. (Id. ¶ 9.) Although she sought to have her position reclassified in 2012, the New Jersey

5 On a motion for summary judgment, the Court “draw[s] all reasonable inferences from the

underlying facts in the light most favorable to the nonmoving party.” Jaffal v. Dir. Newark N.J.

Field Off. Immigr. & Customs Enf’t, 23 F.4th 275, 281 (3d Cir. 2022) (quoting Bryan v. United

States, 913 F.3d 356, 361 n.10 (3d Cir. 2019)). Although Plaintiff claims that MCDSS omitted

facts favorable to her from its moving papers, she does not dispute the facts that MCDSS puts forth

in its Statement of Undisputed Material Facts. (See generally ECF No. 118.)

Civil Service Commission determined that Plaintiff’s job title was appropriate for her assigned

duties. (SMF ¶ 55(a).) While Plaintiff alleges that a Caucasian woman was promoted to a

supervising clerk position under “irregular circumstances” in April 2015, it is undisputed that

Plaintiff was not qualified for that position. (Id. ¶ 55(b).)

In 2014, Plaintiff was diagnosed with a medical condition affecting her spine. (ECF No.

18 ¶ 10.) MCDSS does not dispute Plaintiff’s medical history and does not dispute that her medical

condition qualified as a covered disability for which Plaintiff was entitled to reasonable

accommodations. (See ECF No. 115-3 at 17.) When Plaintiff sought accommodations for her

spinal condition, including permission to wear sneakers and to use an ergonomic chair, MCDSS

granted her requests. (ECF No. 18 ¶ 25.) MCDSS never withdrew Plaintiff’s authorization to

wear sneakers or use an ergonomic chair. (SMF ¶ 55(j).) Plaintiff testified in her deposition that

after she was already granted permission to wear sneakers, MCDSS asked all employees wearing

sneakers to submit disability authorization forms. (See ECF No. 115-4 at 122.) While MCDSS

required Plaintiff to submit additional paperwork to continue wearing sneakers, it paid for Plaintiff

to visit a doctor to receive the updated disability paperwork. (SMF ¶ 55(j).)

In May 2015, Plaintiff alleges that she was not trained on a new call-center program called

“Snap Trac.” (ECF No. 18 ¶ 17.) Plaintiff complained to a supervisor that she was denied the

opportunity to train on the program because of her race. (Id.) She reported that a new hire, who

was Caucasian, was being trained on the program, while other women of color were not given the

same opportunity. (Id.) However, eighteen other agents in the Customer Care department,

fourteen of whom were Caucasian, were similarly not trained on the Snap Trac program. (SMF

¶ 55(c).)

In May 2017, Plaintiff lodged an internal complaint against one of her supervisors, Robert

Jaichner. (See ECF No. 115-4 at 39-40.) In her complaint to the Monmouth County Department

of Human Resources Office of Professional Standards (OPS), she alleged that Jaichner conducted

himself inappropriately in a counseling session with her, including by slamming his fist on a table

and glaring at her. (Id. at 40.) In July 2017, Plaintiff filed a citizen’s complaint with the Freehold

Township Municipal Court against Jaichner, claiming that he had assaulted her during the

counseling session. (Id.) In her citizen’s complaint, Plaintiff alleged that Jaichner had lunged at

her and violated her, despite the fact that she was disabled. (Id.) One of the bases for Plaintiff’s

ultimate termination from MCDSS was that her “certified statement to [Freehold Municipal Court

was] contrary to statements provided to the [OPS] investigators.” (Id.) The criminal complaint

against Jaichner was dismissed by the Freehold Township Municipal Court. (SMF ¶ 55(m).)

On August 17, 2017, OPS issued Plaintiff a Notice of Immediate Suspension and

Preliminary Notice of Disciplinary Action. (Id. ¶ 5.) Plaintiff was suspended effective

immediately and OPS scheduled a hearing to consider her termination for September 11, 2017.

(ECF No. 115-2 ¶ 7.) Plaintiff attended the hearing with the vice president of her collective

bargaining unit, and she was given an opportunity to respond to the charges asserted by OPS.

(SMF ¶ 9; see also ECF No. 115-4 at 45, 54.)

OPS issued its Final Notice of Disciplinary Action (MCDSS Final Notice) on October 13,

2017. The MCDSS Final Notice outlined the charges against Plaintiff, which included violations

of the following subsections of N.J. Stat. Ann. § 4A:2-2.3(a): (1) incompetency, inefficiency or

failure to perform duties; (2) insubordination; (6) conduct unbecoming a public employee; (7)

neglect of duty; and (12) other sufficient cause. Plaintiff was also charged with violating

Monmouth County Policy 701 Regarding Employee Conduct and Work Rules; violating

Monmouth County Policy 722 Regarding Workplace Etiquette; and violating Monmouth County

Policy Regarding Prohibiting Workplace Discrimination and Harassment. (ECF No. 115-4 at 38.)

The MCDSS Final Notice also outlined specific examples of Plaintiff’s misconduct. For

example, Plaintiff placed on hold a caller who was seeking assistance so Plaintiff could microwave

her food. (Id. at 41.) After the call concluded, Plaintiff remarked, “[s]ee, when you put them on

hold and make them wait, they are nicer when you tell them the same thing.” (Id.) Plaintiff does

not address this incident in her opposition papers. (See generally ECF No. 118.) In another

instance, Plaintiff sent a client’s confidential personal information, including their name, date of

birth, and social security number to an unidentified person whom she had never met. (ECF No.

115-4 at 41-42.) Plaintiff does not dispute that she failed to redact the confidential information,

stating that “[u]nder stress and in error. I forgot to redact.” (RSMF at 7.) Plaintiff was suspended

for twenty days after this incident. (ECF No. 115-4 at 50.)

Further, the MCDSS Final Notice outlines a meeting that Plaintiff had with three

supervisors regarding the paperwork needed for her accommodation to wear sneakers. It states

that Plaintiff “displayed unacceptable workplace conduct and etiquette toward” her superiors by

telling them that she would create an audio recording of her conversation with them. (ECF No.

115-4 at 42.) After the supervisors told Plaintiff that she could not record the conversation, she

stated “then this conversation will not happen” before slamming the door shut. (Id. at 42.) This

incident led to Plaintiff receiving a five-day suspension, which was later reduced to three days.

(Id.)

Finally, the MCDSS Final Notice included the following characterization of Plaintiff’s

conduct:

You have consistently demonstrated a pattern of

unacceptable conduct toward your coworkers and superiors. You are

consistently insubordinate, boisterous and disruptive. Your actions

are intentionally designed to undermine your supervisor’s authority

and deflect from your failure to adhere to established policies. You

inappropriately react to corrective and constructive criticism by

portraying yourself as a victim and displaying undisciplined and

destructive emotional behavior. Your toxic behavior has created an

extremely unhealthy working environment that is detrimental to the

mission of the Division of Social Services. You are unfit for duty as

your conduct compromises the effective delivery of services and

ability to maintain order. Your egregious conduct damages the

workplace morale, creates an unprofessional working environment

and demeans the public trust which cannot be tolerated by the

County of Monmouth, the Department of Human Services and the

Division of Social Services.

[(Id. at 42-43.)]

Plaintiff’s termination was upheld by OPS due to Plaintiff’s “pattern of gross misconduct.”

(Id at 43.) Plaintiff—then a senior receptionist—was officially terminated from her employment

at MCDSS on October 13, 2017. (Id.) Her termination was effective retroactively to August 17,

2017, the date on which she was suspended without pay. (Id.; SMF ¶¶ 5, 7.) No other senior

receptionist was hired to replace Plaintiff. (SMF ¶ 55(n); see also ECF No. 115-4 at 171.)

While working at MCDSS, Plaintiff raised several allegations of discrimination. Plaintiff

filed charges of discrimination with the United States Equal Employment Opportunity

Commission (EEOC) against MCDSS in 2012, 2014, 2015, and 2016.6 (SMF ¶¶ 11-40.) Through

her EEOC charges, Plaintiff claimed that she was being discriminated against based on her race,

disability, religion, and age, and that she was subject to retaliation and a hostile work environment.

(Id.) She also alleged violations of Title VII, the ADA, and the ADEA. (Id.) Her charges related

to conduct that allegedly occurred between December 28, 2011 and August 23, 2016. (See id.)

The EEOC dismissed each of Plaintiff’s charges, and in each instance issued Plaintiff a dismissal

6 Plaintiff filed her charges with the EEOC on April 6, 2012; July 18, 2014; July 28, 2015;

April 20, 2016; and December 6, 2016. (SMF ¶¶ 11, 17, 23, 29, 35.)

letter notifying Plaintiff of her right to file suit within 90 days. (Id.) The latest right-to-sue letter

issued to Plaintiff before she filed suit was issued on June 19, 2017. Plaintiff filed suit on February

13, 2018. In May 2018, Plaintiff filed an intake form with the EEOC alleging that a discriminatory

action took place on August 17, 2017. (Id. ¶ 45.) The EEOC thereafter sent Plaintiff a further

dismissal letter on May 21, 2018. (Id. ¶ 47.)

II. LEGAL STANDARD

Summary judgment shall be granted 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); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). A dispute is “genuine” if it

could lead a “reasonable jury [to] return a verdict for the nonmoving party.” Anderson v. Liberty

Lobby, Inc., 477 U.S. 242, 248 (1986). “Only disputes over facts that might affect the outcome of

the suit under the governing law will properly preclude the entry of summary judgment.” Id.

When deciding the existence of a genuine dispute of material fact, the Court must determine

“whether the evidence presents a sufficient disagreement to require submission to a jury or whether

it is so one-sided that one party must prevail as a matter of law.” Id. at 251-52. The Court must

grant summary judgment if any party “fails to make a showing sufficient to establish the existence

of an element essential to that party’s case, and on which that party will bear the burden of proof

at trial.” Celotex, 477 U.S. at 322. “[I]nferences, doubts, and issues of credibility should be

resolved against the moving party.” Meyer v. Riegel Prods. Corp., 720 F.2d 303, 307 n.2 (3d Cir.

1983).

III. DISCUSSION

A. Federal Law Claims (Counts One through Three)

MCDSS moves for summary judgment on Plaintiff’s federal claims—for violations of Title

VII, the ADA, and the ADEA—on the grounds that Plaintiff’s claims are either time-barred under

the applicable statute of limitations or must be dismissed because Plaintiff has failed to exhaust

administrative remedies. (See ECF No. 115-3 at 11-13.)

First, MCDSS argues that to the extent Plaintiff’s federal law claims arise out of conduct

occurring on or before December 6, 2016—the date on which Plaintiff filed her last charge with

the EEOC—they are time-barred because Plaintiff did not file suit within 90 days of the EEOC

dismissing her charges. (ECF No. 115-4 at 11.) The Court agrees.

When the EEOC receives a charge of discrimination, it “investigate[s] ‘to determine

whether there is reasonable cause to believe that the charge is true.’” McLane Co. v. E.E.O.C., 581

U.S. 72, 75 (2017), as revised (Apr. 3, 2017) (citations omitted). “In the event that the EEOC

determines there is ‘n[o] reasonable cause to believe that the charge is true,’ the Commission is to

dismiss the charge and notify the complainant of his or her right to sue in court.” Fort Bend Cnty.,

Texas v. Davis, 587 U.S. 541, 545 (2019). This “right-to-sue letter” provides that any such suit

must be commenced within 90 days. See Powell v. Verizon N.J., Inc., Civ. No. 19-08418, 2022

WL 2187997, at *4 n.6 & n.7 (D.N.J. June 17, 2022).7 The 90-day time limit applies to claims

brought under Title VII, the ADA, and the ADEA. See Covington v. URS Corp., Civ. No. 11-

04516, 2013 WL 2181282, at *2 (D.N.J. May 20, 2013) (“In the event that the EEOC issues a

right-to-sue letter, an ADEA claimant must file its federal suit within ninety days after receipt of

the letter.”); Oloo v. Bloomberg LP, Civ. No. 12-4943, 2013 WL 706292, at *2 (D.N.J. Feb. 26,

2013) (“A complaint alleging discrimination under Title VII and the ADA must be filed “within

90 days of the date on which the complainant has notice of the EEOC’s decision not to pursue the

administrative charge.”).

7 In the alternative, the complainant may file a suit if the EEOC does not issue a right-to-sue

letter within 180 days of the complaint. Powell v. Verizon N.J., Inc., 2022 WL 2187997, at *4.

This 90-day period within which a plaintiff must file a complaint is treated as a statute of

limitations. Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 239-40 (3d Cir. 1999). (“[I]t

is settled that the ninety-day time limit in which a plaintiff must file a Title VII action is akin to a

statute of limitations rather than a jurisdictional bar.”) Courts have “strictly construed the 90-day

period and held that, in the absence of some equitable basis for tolling, a civil suit filed even one

day late is time-barred and may be dismissed.” Burgh v. Borough Council of Borough of Montrose,

251 F.3d 465, 470 (3d Cir. 2001). Nevertheless, a claim may be tolled “when it appears that (1)

the defendant actively misled the plaintiff respecting the reason for the plaintiff’s discharge, and

(2) this deception caused the plaintiff’s non-compliance with the limitations provision.” Ruehl v.

Viacom, Inc., 500 F.3d 375, 384 (3d Cir. 2007).

Plaintiff does not appear to deny that she received the EEOC right-to-sue letters. Cf. Hayes

v. N.J. Dep’t of Hum. Servs., 108 F.4th 219, 222 (3d Cir. 2024) (finding that the plaintiff could

overcome the presumption that she received a right-to-sue letter by submitting a sworn declaration

that she did not receive it). To the contrary, Plaintiff appears to concede that the EEOC dismissed

her charges. (See RSMF at 3 (“Bernacine Marie Barnes EEOC Statements. The truth of the fact.

I reached out, was denied. In multitudinous area I filed in seek of help. I refused to upset [myself]

any further with pain.”).) And there is no indication in the record that equitable tolling applies in

this case, which was filed over seven months after Plaintiff received her June 2017 right-to-sue

letter. See Seitzinger v. Reading Hosp. & Med. Ctr., 165 F.3d 236, 240 (3d Cir. 1999) (“[E]quitable

tolling may be appropriate when a claimant received inadequate notice of her right to file suit,

where a motion for appointment of counsel is pending, or where the court has misled the plaintiff

into believing that she had done everything required of her.”).

The Court thus finds that Plaintiff’s federal claims related to conduct occurring before

December 6, 2016, the date on which she filed her last EEOC charge before filing this action, are

time-barred. Based on the undisputed facts in the record, Plaintiff received EEOC right-to-sue

letters on five separate occasions and failed to file suit within 90 days of any of those notices. (See

SMF ¶¶ 11-40.) To the extent Plaintiff’s federal claims relate to conduct occurring prior to

December 6, 2016, they must be dismissed.

Second, MCDSS argues that Plaintiff has failed to exhaust administrative remedies for

conduct alleged to have occurred after December 6, 2016 and before her Complaint was filed in

February 2018. “Prior to commencing a lawsuit under Title VII, the ADA, or the ADEA, a plaintiff

must first file a charge with the EEOC.” Canete v. Barnabas Health Sys., Civ. No. 12-7222, 2013

WL 5305236, at *4 (D.N.J. Sept. 18, 2013) (citing Webb v. City of Phila., 562 F.3d 256, 262 (3d

Cir. 2009) and Snyder v. Baxter Healthcare, Inc., 393 F. Appx. 905, 908 (3d Cir. 2010)). “Under

Title VII, a charge of race discrimination in employment must be filed with the EEOC within 180

days of the occurrence of the alleged unlawful employment practice. Burgh, 251 F.3d at 469.8

The same is true for both the ADA and the ADEA. See Morris v. Eberle & BCI, LLC, Civ. No.

13-06113, 2014 WL 4352872, at *4 (D.N.J. Sept. 3, 2014) (“[I]n order to file an ADA claim, a

plaintiff must first file an administrative charge with the EEOC within 180 days of the alleged

discriminatory act.” (citing 42 U.S.C. § 2000e-5(e)(1)); DeJesus v. Kids Acad., Inc., Civ. No. 18-

13822, 2021 WL 3879076, at *2 (D.N.J. Aug. 31, 2021) (“[U]nder the ADEA, a complainant must

file a Charge of Discrimination with the EEOC within 180 days after the alleged unlawful act of

8 In New Jersey, the timeframe to file a charge of discrimination is extended to 300 days if

“the plaintiff first institutes proceedings with a ‘State or local agency with authority to grant or

seek relief from such practice.’” See DeJesus v. Kids Acad., Inc., Civ. No. 18-13822, 2021 WL

3879076, at *1 n.3 (D.N.J. Aug. 31, 2021).

discrimination[.]” (citing Seredinski v. Clifton Precision Prods. Co., 776 F.2d 56, 62-63 (3d Cir.

1985))).

It is undisputed that Plaintiff did not file an EEOC charge any time between December 6,

2016 and February 13, 2018—the date on which she brought this case. Although she filed an

EEOC charge in May 2018, which was ultimately dismissed, that does not save her claim as actions

taken after the filing of a suit cannot form the basis of a claim. See Hurley v. Atl. City Police Dep’t,

Civ. No. 93-260, 1995 WL 854478, at *17 n.15 (D.N.J. Aug. 4, 1995), aff’d, 174 F.3d 95 (3d Cir.

1999) (“An EEOC charge is a prerequisite to a Title VII action . . . and actions taken after the filing

cannot form the basis for a claim.” (internal citation omitted)). Also, Plaintiff’s final EEOC charge

was filed more than 180 days after the alleged August 17, 2017 discriminatory action. (SMF ¶

46). Thus, the Court will also dismiss Plaintiff’s federal claims based on conduct occurring after

December 6, 2016. MCDSS’s Motion is granted as to all of Plaintiff’s federal claims (Counts One

through Three).9

B. State Law Claims

CEPA is intended to protect whistleblowers from retaliation by their employers. Lippman

v. Ethicon, Inc., 119 A.3d 215, 224 (N.J. 2015). The Act is designed to “encourage employees to

report illegal or unethical workplace activities and to discourage public and private sector

employers from engaging in such conduct.” Id. (quoting Abbamont v. Piscataway Twp. Bd. of

Educ., 650 A.2d 958, 971 (N.J. 1994)). CEPA applies where an employee reports their coworker’s

misconduct. Higgins v. Pascack Valley Hosp., 730 A.2d 327, 338 (N.J. 1999) (“CEPA prohibits

9 Since the Court agrees that all of Plaintiff’s federal claims are time-barred, the Court will

not address the merits of each claim.

an employer from taking retaliatory action against an employee who has a reasonable basis for

objecting to a co-employee’s activity, policy, or practice covered [by CEPA].”). Analyzing a CEPA

claim requires a three-part inquiry. “First, the court must determine if the plaintiff has established

a prima facie case of retaliatory discharge under CEPA.” Morro v. DGMB Casino LLC, 112 F.

Supp. 3d 260, 282 (D.N.J. 2015). If a plaintiff makes out a prima facie case, “the burden shifts to

[the] defendant to articulate some legitimate nondiscriminatory reason for making the adverse

employment decision.” Id. If the defendant meets that burden, “the burden shifts back to the

plaintiff, who, in order to survive summary judgment, must raise an issue of fact that the articulated

reason is a pretext for the retaliation or that a discriminatory reason more likely motivated the

employer.” Id.

Plaintiff claims that MCDSS violated CEPA for terminating her in response to a criminal

complaint she filed against her supervisor and for writing letters to the Monmouth County

Freeholders. (See ECF No. 18 ¶¶ 53-56.) To establish a prima facie case under CEPA, Plaintiff

must first demonstrate that: (1) she reasonably believed that MCDSS’s conduct was violating either

a law, rule, or regulation promulgated pursuant to law, or a clear mandate of public policy; (2) she

performed a “whistle-blowing” activity described in N.J. Stat. Ann. § 34:19-3c; (3) an adverse

employment action was taken against her; and (4) a causal connection exists between the whistle-

blowing activity and the adverse employment action. Dzwonar v. McDevitt, 828 A.2d 893, 900

(N.J. 2003). The crux of Plaintiff’s CEPA claim is that: (1) she was assaulted by her supervisor,

(2) she reported that assault to the police, and (3) she was thereafter terminated.10

10 Plaintiff also alleges that she was retaliated against for writing letters to the Monmouth

County Freeholders, but there are no facts in the record to support this allegation, so summary

judgment in favor of MCDSS is appropriate on that issue. See Veverka v. Royal Caribbean

Cruises Ltd., 649 F. App’x 162, 168 (3d Cir. 2016) (“[A]t summary judgment, [the non-moving

party] must ‘cit[e] to particular parts of materials in the record, including depositions, documents,

MCDSS contends that Plaintiff’s CEPA claim must fail because her claims do not implicate

a public harm, but rather are of a personal nature. (ECF No. 115-3 at 27 (citing Maw v. Advanced

Clinical Communications, Inc., 179 N.J. 439, 445 (2004) and Mehlman v. Mobil Oil Corp., 153

N.J. 163, 188 (1998).) However, courts in this district have found that employees reporting an

assault at work have stated a prima facie CEPA claim. See Leverett v. Williams-Sonoma Direct,

Inc., Civ. No. 23-2405, 2023 WL 9039568, at *3 (D.N.J. Dec. 30, 2023) (holding that a plaintiff

who alleged “that his co-workers grabbed him, tried to strangle him, and repeatedly punched him”

and was terminated eight days later stated a claim for a CEPA violation); Suwanphap v. Pad Thai,

Inc., Civ. No. 10-1762, 2010 WL 2426039, at *3 (D.N.J. June 10, 2010) (finding that the plaintiff

pled “more than a private grievance” where he alleged that he witnessed an assault, testified in a

municipal court proceeding about the assault, and was thereafter denied additional work

opportunities); Smith v. TA Operating, LLC, Civ. No. 10-02563, 2012 WL 3527696, at *12 (D.N.J.

Aug. 13, 2012) (finding that CEPA claims based on an employee reporting an assault were

sufficient to survive summary judgment).

However, even if Plaintiff were able to succeed in establishing a prima facie case for a

CEPA violation, summary judgment would still be appropriate if the undisputed facts establish a

legitimate non-discriminatory reason for Plaintiff’s termination. See, e.g., Blackburn v. United

Parcel Serv., Inc., 179 F.3d 81, 94 (3d Cir. 1999) (holding that even if the plaintiff “had presented

sufficient evidence to meet his prima facie burden at the summary judgment stage” that summary

judgment was still appropriate in favor of the employer because the plaintiff did not present

evidence of pretextual termination). In response to a CEPA claim, an “employer is always free to

electronically stored information, affidavits or declarations, stipulations . . . , admissions,

interrogatory answers, or other materials. . . . A nonmoving party cannot create a genuine issue of

fact by citing the pleadings.” (citations omitted)).

show that the discharge was animated by incompetence, disloyalty, reduction in force, or any other

legitimate reason.” Parker v. M & T Chemicals, Inc., 566 A.2d 215, 220 (N.J. Super. Ct. App. Div.

1989). Here, the undisputed facts show that MCDSS had several legitimate nondiscriminatory

reasons to terminate Plaintiff, including prior suspensions for unacceptable workplace conduct and

disclosing a client’s confidential information. (See ECF No. 115-4 at 50, 51.)

Since MCDSS has put forth several legitimate nondiscriminatory reasons to terminate

Plaintiff, the burden then shifts back to Plaintiff to prove that those reasons are pre-textual. See

Blackburn v. United Parcel Serv., Inc., 179 F.3d at 92 (“For summary judgment purposes, the court

must determine whether the plaintiff has offered sufficient evidence for a reasonable jury to find

that the employer’s proffered reason for the discharge was pretextual and that retaliation for the

whistleblowing was the real reason for the discharge.”). “Pretext is ‘a purpose or motive alleged

or an appearance assumed in order to cloak the real intention or state of affairs;’ in essence, pretext

is a ‘cover-up’ for a discriminatory purpose.” Bowles v. City of Camden, 993 F. Supp. 255, 262

(D.N.J. 1998) (citation omitted). Summary judgment must be denied where there exists a “direct

clash of facts” about the reasons for the termination. Gary v. The Air Grp., Inc., Civ. No. 02-2589,

2007 WL 2892906, at *6 (D.N.J. Sept. 28, 2007). But even viewing the facts in the light most

favorable to Plaintiff, there is no such direct clash of facts here. Cf. Smith, 2012 WL 3527696, at

*10 (plaintiff survived summary judgment where she established that “inconsistencies and

uncertainties surrounding [the defendant’s] proffered reason for the discharge raise[ed] genuine

issues of material fact” by pointing to evidence that, despite the employer’s assertion to the

contrary, she had never offered her resignation).

Plaintiff has not carried her burden to rebut the legitimate nondiscriminatory reasons for

her termination. See, e.g., Milham v. Cortiva Educ., Inc., Civ. No. 06-04226, 2007 WL 3146669,

at *5 (E.D. Pa. Oct. 25, 2007), aff’d, 302 F. App’x 70 (3d Cir. 2008) (“In order to withstand a

motion for summary judgment, the plaintiff must present evidence to create a genuine issue of

material fact regarding the credibility of the defendant’s legitimate non-discriminatory reason for

its adverse employment action against the plaintiff.”); see also Zaffuto v. Wal-Mart Stores, Inc.,

130 F. App’x 566, 571 (3d Cir. 2005) (affirming grant of summary judgment in favor of CEPA

defendant where the plaintiff was unable to rebut two nonretaliatory reasons for terminating the

plaintiff and the plaintiff was unable to raise any facts to suggest those reasons were pretextual).

Ultimately, to survive summary judgment, a plaintiff must “raise a genuine issue of fact suggesting

pretext by providing some evidence establishing a reasonable inference that the employer’s

proffered reason for the adverse employment decision was weak, implausible, inconsistent,

incoherent or contradictory so as to be unworthy of credence.” Bowles, 993 F. Supp. at 262.

Plaintiff has not done so here.

The MCDSS Final Notice identifies a number of instances of Plaintiff’s misconduct, which

appear undisputed based on the Court’s review of Plaintiff’s submission. See Morro, 112 F. Supp.

3d at 285 (granting summary judgement to defendant on a CEPA claim where the defendant “set

forth a legitimate, nondiscriminatory reason for terminating” the plaintiff, which the plaintiff could

not rebut). The Court thus grants summary judgment to MCDSS on Plaintiff’s CEPA claim.

Plaintiff brings claims under the NJLAD for alleged discrimination based on her age

(Count Six), disability/handicap (Count Seven), and ancestry/descent/religion (Count Eight).

More specifically, Plaintiff alleges that there was a disparate impact based on her membership in

several protected classes and that MCDSS created a hostile work environment. MCDSS argues

that it is entitled to summary judgment on Plaintiff’s NJLAD claims for two reasons. (See ECF

No. 18 ¶¶ 57-76.) First, it asserts that Plaintiff’s claims related to actions taken before February

13, 2016—two years before Plaintiff filed her Complaint—are barred under NJLAD’s two-year

statute of limitations. (ECF No. 115-4 at 15.) Second, it asserts that Plaintiff does not support her

NJLAD claims with any allegations of discrimination between February 13, 2016 and February

13, 2018, the date on which she filed this action. (Id. at 19.) The Court will address each in turn.

a. Statute of Limitations

NJLAD claims are generally subject to a two-year statute of limitations. See Montells v.

Haynes, 627 A.2d 654, 655 (N.J. 1993) (holding that “a single statute of limitations should apply

to all [NJ]LAD claims” and that “the two-year personal-injury statute of limitations applies”).

MCDSS argues that the two-year statute of limitations bars Plaintiff from bringing claims related

to conduct on or before February 13, 2016—two years prior to the date on which she filed her

original Complaint. (ECF No. 115-3 at 15.) The Court agrees.

In limited instances, courts may use equitable tolling to extend the NJLAD’s two-year

statute of limitations. See Brown v. R.R. Grp. Ltd. Liab. Co., Civ. No. 16-04602, 2017 WL

1365215, at *2 (D.N.J. Apr. 7, 2017) (noting that equitable tolling applies “where a plaintiff is

misled and as a result fails to act within the prescribed time limit, or where a plaintiff is prevented

from timely asserting his or her claims because of gross attorney error”). Equitable tolling may

apply “when some extraordinary circumstance prevents a plaintiff from asserting a right despite

the exercise of reasonable diligence.” Hanani v. State of New Jersey Dep’t of Env’t Prot., 205 F.

App’x 71, 77 (3d Cir. 2006). Thus, a plaintiff claiming equitable tolling “bears the burden to show

that [s]he diligently pursued h[er] rights and that some ‘extraordinary circumstance stood in [the]

way.’” Id. (quoting Satterfield v. Johnson, 434 F.3d 185, 188 (3d Cir. 2006) (third alteration in

original). Here, Plaintiff has not argued that equitable tolling applies, nor does the Court see any

basis to apply the doctrine. As evidenced by the fact that Plaintiff received right-to-sue letters

from the EEOC in 2013, 2014, and 2015, Plaintiff was aware of her potential claims against

MCDSS but did not file suit within the statute of limitations. (See SMF ¶ 13, 21, 27.)

Courts have also recognized that separate acts of discrimination may sometimes be viewed

as a “single, continuing violation.” Hanani, 205 F. App’x at 78; see also Williams v. Twp. of

Lakewood, Civ. No. 17-11401, 2020 WL 7391009, at *12 (D.N.J. Dec. 15, 2020) (explaining that

New Jersey “recognizes the ‘continuing violation doctrine,’ which provides that when an

individual experiences a ‘continual, cumulative pattern of tortious conduct’ the limitations period

begins only when the wrongful action ceases.”). “To prevail on a continuing violation

theory . . . the plaintiff must show more than the occurrence of isolated or sporadic acts of

intentional discrimination.” Jewett v. Int’l Tel. & Tel. Corp., 653 F.2d 89, 91 (3d Cir. 1981).

“[D]iscrete acts—such as the demotions, transfers, failures to promote, and other adverse

employment actions that plaintiffs allege they experienced due to their [protected class]—do not

fall under the continuing violations doctrine and are subject to the NJLAD’s two-year statute of

limitations. Sgro v. Bloomberg L.P., 331 F. App’x 932, 938 (3d Cir. 2009). Therefore, “[t]o allege

a continuing violation, the plaintiff must show that all acts which constitute the claim are part of

the same unlawful employment practice and that at least one act falls within the applicable

limitations period.” Mandel v. M & Q Packaging Corp., 706 F.3d 157, 165-66 (3d Cir. 2013).

Based on a review of the record, the Court finds no reason to apply the continuing violation

doctrine. In support of her claims, Plaintiff points to several discrete incidents that occurred

outside of the two-year statute of limitations. For example, Plaintiff claims that between 2000 and

2003 “she professed her faith as a devout Jehovah’s Witness and would call upon her Lord and

Savior” and in response was “ridiculed and told she was insane and needed a psychiatrist.” (ECF

No. 18 ¶ 14; SMF ¶ 55(f).) Plaintiff also claims that a Caucasian woman was promoted under

“irregular circumstances” in September 2015. (ECF No. 18 ¶ 13.) Plaintiff also alleges that several

incidents occurred within the limitations period, including that she was “accosted for wearing

sneakers” and written up for insubordination in September 2016, (Id. ¶ 21), and that a supervisor

accused Plaintiff of making false accusations when she reported hazardous paint fumes at work in

February 2016, (id. ¶ 15). Taken together, these incidents do not establish a “continual” or

“cumulative” pattern to warrant the application of the continuing violation doctrine. See Illas v.

Gloucester Cnty. Sheriff’s Dep’t, Civ. No. 14-4061, 2015 WL 778806, at *5 (D.N.J. Feb. 24, 2015)

(declining to apply the continuing violation doctrine where the plaintiff’s complaint was “an

amalgam of discrete acts and general allegations of hostile work environment and discrimination”).

Nor has Plaintiff pointed to any evidence to suggest that MCDSS’s acts were based on the same

severe and pervasive course of action. See Cascina v. Hackensack Univ. Med. Ctr., Civ. No. 19-

17571, 2021 WL 4490249, at *5 (D.N.J. Oct. 1, 2021) (finding there had been no continuing

violation where the plaintiff did “not demonstrate a severe and pervasive course of violations by

the employer”); cf. Shepherd v. Hunterdon Developmental Ctr., 803 A.2d 611, 623 (N.J. 2002)

(applying the continuing violation doctrine where the plaintiffs described “individual incidents

common to the same two supervisors and related to the same basic subject, with no one incident

constituting a discrete, stand-alone claim”).

MCDSS is therefore entitled to summary judgment on Plaintiff’s NJLAD claims as they

relate to conduct occurring prior to February 13, 2016. See Bibbs v. Twp. of Kearney, Civ. No. 09-

3769, 2011 WL 765970, at *5 (D.N.J. Feb. 25, 2011) (finding that the continuing violation doctrine

did not apply to the plaintiff’s hostile work environment claim and thus granting summary

judgment in favor of the defendant). The Court next addresses Plaintiff’s NJLAD claims related

to conduct occurring after February 2016.

b. Hostile Work Environment

To establish a hostile work environment, a plaintiff “must show that the complained-of

conduct (1) would not have occurred but for the employee’s protected status, and was (2) severe

or pervasive enough to make a (3) reasonable person believe that (4) the conditions of employment

have been altered and that the working environment is hostile or abusive.” Williams, 2020 WL

7391009, at *18. The Court has not identified a genuine dispute of material fact that would allow

Plaintiff’s hostile work environment claim to survive summary judgment. Although she made

several complaints to the EEOC regarding a hostile work environment, Plaintiff’s allegations

before the EEOC were conclusory in nature. (SMF ¶¶ 13, 25, 31.) Her Complaint in this case is

similarly conclusory in nature. (See, e.g., ECF No. 18 ¶ 49 (“Defendants created a hostile work

environment where the defendants offensive conduct was so pervasive or pervasive that [a]

reasonable person would consider it intimidating hostile or evasive and the offensive conduct

became a condition of plaintiff’s continued employment.”).) These allegations are insufficient to

survive summary judgment. See Allison v. New Jersey Transit Corp., Civ. No. 12-02493, 2014

WL 6474088, at *6 (D.N.J. Nov. 19, 2014) (“Because a party resisting summary judgment cannot

rely merely upon ‘bare assertions, conclusory allegations or suspicions to show the existence of a

material issue,’ . . . the Court will grant [the] [d]efendants’ motion on the [p]laintiff’s . . . NJLAD

claims.” (quoting McCabe v. Ernst & Young, 494 F.3d 418, 436-37 (3d Cir. 2007))).

After careful review of the record, the Court finds that a reasonable jury could not find that

MCDSS’s alleged conduct was severe or pervasive enough to sustain Plaintiff’s hostile work

environment claim. Often, such claims involve objectionable and clearly hostile comments or

threats. See, e.g., Brown v. Joel Tanis & Sons, Inc., Civ. No. 13-02984, 2014 WL 2705262, at *2–

3 (D.N.J. June 13, 2014) (finding “frequent and continual use of” racial slurs “combined with

numerous other threats and racist remarks” to plausibly state claim for hostile work environment).

This is so because a hostile work environment is one “permeated with ‘discriminatory intimidation,

ridicule, and insult,’ that is ‘sufficiently severe or pervasive to alter the conditions of the victim’s

employment and create an abusive working environment.’” Nat’l R.R. Passenger Corp. v. Morgan,

536 U.S. 101, 116 (2002) (quoting Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993));

Castleberry v. STI Grp., 863 F.3d 259, 264 (3d Cir. 2017) (“Whether an environment is hostile

requires looking at the totality of the circumstances, including: ‘the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or humiliating, or a mere offensive

utterance; and whether it unreasonably interferes with an employee’s work performance.’”

(citation omitted)).

Again, Plaintiff’s hostile work environment claims are mostly conclusory in nature. While

Plaintiff does assert some specific allegations, such as a failure to provide proper training, (ECF

No. 18 ¶ 17), that she was “accosted for wearing sneakers,” (id. ¶ 21), and that she was accused of

making false allegations related to hazardous paint fumes, (id. ¶ 15), these types of allegations

have generally been found insufficient to sustain a hostile work environment claim. See, e.g.,

Wright v. Providence Care Ctr., LLC, 822 F. App’x 85, 97 (3d Cir. 2020) (“Occurrences such as

being ignored, told once to ‘shut up,’ hearing an offhand comment about collecting disability, being

temporarily pulled to work on another floor at the facility, receiving a marginally negative

performance review without cause, and scheduling annoyances, while no doubt unpleasant, are not

objectively ‘extreme,’ as is required for a viable . . . hostile workplace claim.”); Davis v. City of

Newark, 285 F. App’x 899, 903 (3d Cir. 2008) (affirming dismissal of a racial hostile work

environment claim where the plaintiff was wrongly disciplined several times, called “a pain in my

balls,” ignored by co-workers who spoke only Spanish in her presence, had her tires slashed, and

was eventually transferred from her squad); see also Nelatury v. Pennsylvania State Univ., 633 F.

Supp. 3d 716, 736 (W.D. Pa. 2022) (“The allegations do not reach th[e] threshold [for hostile work

environment]. [The plaintiff] does not allege insulting comments, taunting, the display of offensive

cartoons, or the like. Being denied promotion and the opportunity to supplement a dossier does

not create a workplace ‘permeated with . . . intimidation, ridicule, and insult.’” (quoting Morgan,

536 U.S. at 116)); Wolverton v. Goodyear Tire & Rubber Co., Civ. No. 13-2782, 2015 WL 851779,

at *6 (D.N.J. Feb. 26, 2015) (“[A]n ‘unhappy’ workplace does not equate to a hostile work

environment.” (quoting Dunkley v. S. Coraluzzo Petroleum Transporters, 98 A.3d 1202, 1212 (N.J.

Super. Ct. App. Div. 2014))); Nuness v. Simon & Schuster, Inc, 221 F. Supp. 3d 596, 601 (D.N.J.

2016) (“An employment discrimination law such as the NJLAD is not intended to be a “general

civility code” for conduct in the workplace.”)

Thus, summary judgment is granted in favor of MCDSS to the extent Plaintiff claims a

hostile work environment.

c. Age Discrimination

“[T]o establish a prima facie case under the NJLAD for unlawful termination . . . a plaintiff

must demonstrate that he or she: (1) belongs to a protected class, (2) was qualified for the position

held, (3) was terminated despite adequate qualifications, and (4) after termination the position

remained open and the employer continued to seek applications.” Zive v. Stanley Roberts, Inc.,

867 A.2d 1133, 1145 (N.J. 2005). Further, “in order to satisfy the fourth prong of the . . . prima

facie case, [Plaintiff] must show that [s]he was replaced by someone sufficiently younger to create

an inference of unlawful age discrimination.” Monaco v. Am. Gen. Assur. Co., 359 F.3d 296, 303

(3d Cir. 2004) (quoting Swider v. Ha–Lo Indus., Inc., 134 F.Supp.2d 607, 625 (D.N.J.2001)).

Plaintiff alleges that MCDSS “discriminated and committed unlawful employment

practices against [her], including termination, based upon her age.” (ECF No. 18 ¶ 60.) Plaintiff

further alleges that MCDSS “sought candidates to replace and did replace” her. (Id. ¶ 61.) Here,

summary judgment in favor of MCDSS is warranted because there is no genuine dispute of fact

that Plaintiff was not replaced by a significantly younger employee. Plaintiff claims she was not

replaced “for a long time,” (ECF No. 115-4 at 136), while MCDSS submits that Plaintiff was

never replaced (SMF ¶ 55(n); see also ECF No. 115-4 at 171 (“Upon Plaintiff’s termination, no

one was hired as a senior receptionist in the Call Center.”)). Plaintiff, however, has not cited to

any evidence in the record before the Court that Plaintiff was ultimately replaced by a younger

employee (see generally ECF No. 118), and Plaintiff cannot rely on her deposition testimony to

contest the facts set forth by MCDSS. See Charoff v. MarMaxx Operating Corp., Civ. No. 18-

4712, 2020 WL 1694484, at *2 (E.D. Pa. Apr. 7, 2020) (“[W]hen the non-movant provides rebuttal

evidence, conclusory, self-serving testimony ‘is insufficient to withstand a motion for summary

judgment.’” (quoting Kirleis v. Dickie, McCamey & Chilcote, P.C., 560 F.3d 156, 161 (3d Cir.

2009))).

Plaintiff has not raised a genuine dispute of material fact with regard to her burden of

establishing a prima facie case of age discrimination under the NJLAD. See Pepe v. Rival Co., 85

F. Supp. 2d 349, 368 (D.N.J. 1999), aff’d sub nom. Pepe v. Rival Corp., 254 F.3d 1078 (3d Cir.

2001) (granting summary judgment in favor of employer and noting that “[i]n cases where the

position held by the discharged employee was eliminated or the employee was not replaced he or

she must prove that a younger employee was either retained or treated more favorably.”). The

Court accordingly grants summary judgment in favor of MCDSS on Plaintiff’s NJLAD age

discrimination claim (Count Six).

d. Disability Discrimination

To sustain a NJLAD claim based on disability discrimination, Plaintiff must establish that

“(1) she was disabled within the meaning of the statute; (2) she was qualified to perform the

essential functions of the position of employment; and (3) she suffered an adverse employment

action because of the disability.” Fitzgerald v. Shore Mem’l Hosp., 92 F. Supp. 3d 214, 235 (D.N.J.

2015). MCDSS concedes that the first two factors are met. Plaintiff suffered from a spinal injury

that entitled her to an accommodation. (ECF No. 115-3 at 17.) And, other than her disciplinary

issues, Plaintiff was qualified to perform the essential functions of the position. (Id.)

Plaintiff claims that MCDSS discriminated against her because it required Plaintiff to

submit additional medical records after it had already approved her request to wear sneakers as an

accommodation for her disability. (ECF No. 18 ¶¶ 21-22.) Plaintiff’s claims do not survive

summary judgment. For one, Plaintiff testified in her deposition that all employees who had been

approved to wear sneakers had to submit the same form. (ECF No. 115-4 at 121). Plaintiff being

required to submit an accommodation form similar to all other employees requesting

accommodations is not an adverse employment action. See Berry v. New Jersey State Prison, Civ.

No. 07-2284, 2009 WL 4827500, at *2 (D.N.J. Dec. 10, 2009) (“‘Petty slights or minor annoyances

that often take place at work and that all employees experience’ do not constitute materially adverse

retaliatory actions.” (citation omitted)). “To constitute an adverse employment action, the action

must be ‘serious and tangible enough to alter an employee’s compensation, terms, conditions, or

privileges of employment.’” Tourtellotte v. Eli Lilly & Co., 636 F. App’x 831, 842 (3d Cir. 2016).

Here, it is undisputed that MCDSS never rescinded Plaintiff’s accommodation to wear sneakers.

(SMF ¶ 55(j).) While Plaintiff did eventually suffer an adverse employment action (i.e.,

termination), there is no indication that Plaintiff failed to provide the records or forms or that her

termination was for anything other than her poor performance. See Rich v. State, 294 F. Supp. 3d

266, 280 (D.N.J. 2018) (“[T]he [c]ourt finds [the plaintiff] did not suffer an adverse employment

action because of her disability, but instead because of her performance.”). Plaintiff, therefore,

cannot point to any facts which could lead a reasonable jury to find in her favor on her disability

claims. See Anderson, 477 U.S. at 251-52. The Court grants summary judgment in favor of

MCDSS on Plaintiff’s NJLAD disability discrimination claim (Count Seven).

e. Ancestry/Descent/Religious Discrimination

To prevail on a claim for a NJLAD violation based on her ancestry, descent, or religion,

Plaintiff must prove that (1) she engaged in a protected activity known to her employer, (2) she

was subjected thereafter to an adverse employment decision by the employer, and (3) there was a

causal link between the two. Feeney v. Jefferies & Co., Civ. No. 09-2708, 2010 WL 2629065, at

*6 (D.N.J. June 28, 2010).

In support of her claim, Plaintiff alleges that “she professed her faith as a devout Jehovah’s

Witness and would call upon her Lord and Savior” and in response was “ridiculed and told she

was insane and needed a psychiatrist.” (ECF No. 18 ¶ 14.) Plaintiff later testified that this incident

occurred between 2000 to 2003 (SMF ¶ 55(f).) As previously discussed, Plaintiff’s claim is barred

by the two-year statute of limitations. See Montells, 627 A.2d at 655. Plaintiff also alleges that

she was not trained on a program called Snap Trac, but she has not pointed to any evidence in the

record that would link that allegation to her ancestry, descent, or religion. In the FAC, she alleges

that “the most recent [Snap Trac] trainee was a new hire and Caucasian and that [Plaintiff] and the

other long time employees and Call Center operators were being passed over,” but the undisputed

facts show that 18 other agents in the department, 14 of whom were Caucasian, were also in the

same position as Plaintiff in not receiving the training. (SMF ¶ 55(c).) There is nothing in the

record for a reasonable factfinder to infer that MCDSS’s decision not to train Plaintiff on the Snap

Trac platform was due to Plaintiff’s ancestry, descent, or religion.

Thus, Plaintiff cannot point to any facts which could lead a reasonable jury to find that

MCDSS engaged in discrimination based on Plaintiff’s ancestry, descent, or religion. See

Anderson, 477 U.S. at 251-52. The Court grants summary judgment in favor of MCDSS on

Plaintiff’s NJLAD ancestry, descent, and religious discrimination claim (Count Eight).

f. Burden-Shifting

The Court concludes that Plaintiff has failed to state a prima facie case for discrimination

under the NJLAD. Even if Plaintiff had stated a prima facie case, her claims would fail under

NJLAD’s burden shifting analysis, which is drawn from the United States Supreme Court’s

decision in McDonnell Douglas Corp. v. Green, 411 U.S. 79 2(1973). First, the plaintiff bringing

a NJLAD claim must establish a prima facie case of discrimination. See Phillips v. Starbucks

Corp., 624 F. Supp. 3d 530, 539 (D.N.J. 2022). Second, “[i]f the plaintiff establishes a prima facie

case, the burden shifts to the defendant to ‘articulate some legitimate, non[-]discriminatory reason’

for the adverse employment action.” Id. (second alteration in original). Finally, “[i]f the defendant

does advance a legitimate, non-discriminatory reason, the burden shifts back to the plaintiff to

prove that the reason is pretextual, and the real reason for the adverse action is discrimination.”

Id.

As described above, MCDSS had several legitimate nondiscriminatory reasons to

discipline and ultimately terminate Plaintiff. Plaintiff has failed to raise a genuine issue of fact

that would permit a jury to infer that MCDSS’s termination of Plaintiff was pretextual. As a result,

the Court finds that Plaintiff’s NJLAD claims fail even if she could establish a prima facie case

for discrimination based on her protected classes. See, e.g., Arenas v. L’Oreal USA Prod., Inc.,

790 F, Supp, 2d 230, 239 (D.N.J. 2011), aff'd, 461 F. App’x 131 Gd Cir. 2012) (granting summary

judgment on NJLAD claim where “[t]he record fail[ed] to cast any doubt on [the employer’s]

legitimate non-discriminatory reason for terminating [the plaintiff] in accordance with” the

employer’s disciplinary policy).

IV. CONCLUSION

For the reasons set forth above, and other good cause shown, the Defendant’s Motion for

Summary Judgment (ECF No, 115) is GRANTED. An appropriate Order follows.

Dated: November |, 2024 co j bf. LOY of

( {bt (| dav

LORGETPE CASTNER

ITED STATES DISTRICT JUDGE

29