# MUNIKAH

> District Court, D. New Jersey · January 28, 2026

URL: https://www.frixlaw.com/law-library/cases/11259688

## Case

- **Full name:** Nelly Munikah v. BioReference Laboratories, Inc.
- **Court:** District Court, D. New Jersey
- **Decided:** January 28, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11259688

## How later opinions describe it (automated extraction)

- affirming district court’s grant of summary judgment in defendant’s favor in Section 1981 retaliation claim
- affirming district court’s grant of summary judgment on retaliation claim

## Opinion text

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY

NELLY MUNIKAH,
Civil Action No. 22-5570
Plaintiff,

v. OPINION

BIOREFERENCE LABORATORIES, INC.,
January 28, 2026

Defendant.

SEMPER, District Judge.
THIS MATTER comes before the Court on Defendant BioReference Laboratories, Inc.’s
(“Defendant” or “BioReference”) motion for summary judgment. (ECF 59, “Mot.”) Plaintiff
Nelly Munikah filed an opposition to Defendant’s motion. (ECF 64, “Opp.”) The Court reviewed
the submissions made in support of and in opposition to the motion and decided the motion without
oral argument pursuant to Federal Rule of Civil Procedure 78 and Local Civil Rule 78.1. For the
reasons stated below, Defendant’s motion for summary judgment is GRANTED.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY1
This lawsuit arises from Plaintiff’s allegations of a hostile work environment and
retaliation following her termination from her employer. Plaintiff Nelly Munikah was employed

1 The facts and procedural history are drawn from Defendant’s brief in support of the motion for
summary judgment (ECF 59-1), Defendant’s statement of undisputed material facts (ECF 59-2,
“DSMF”), Plaintiff’s opposition papers containing a statement of facts (ECF 64), and Plaintiff’s
response to Defendant’s statement of material facts (ECF 64, Exhibit P, “Pl. Response.”). Plaintiff
withdrew her statement of material facts, which falsely claimed that Defendant did not produce
documents in discovery and quoted unproduced emails in the submission. (ECF 76,)
by Defendant BioReference as a cytotechnologist for ten years. (Opp. at 7, 11.) Plaintiff, a black
woman, was hired in 2010 and worked in Defendant’s New Jersey lab, and in 2013 she was
transferred to Defendant’s Florida location. (Id.; DSMF ¶ 2.) As a cytotechnologist, Plaintiff
examined specimens for the presence of abnormal cellular changes and pathogens, which in

practice constituted reviewing and diagnosing slides with cell samples. (DSMF ¶ 3.) Plaintiff
“saw herself as an efficient screener, and she was typically able to review the maximum number
of slides permitted per day.” (Id. ¶ 4.) Cytotechnologists employed by BioReference are non-
exempt hourly employees subject to a Recording Work Hours Policy (the “Policy”) that “strictly”
prohibits off-the-clock work and requires employees to record their time worked accurately. (Id.
¶¶ 7-8.) The Policy “clearly states that those who do not accurately record their time are subject
to discipline, up to and including termination.” (Id. ¶ 8.)
At Defendant’s Florida lab, Plaintiff reported to the supervisor of Cytology Operations,
Christopher Schouest. (Id. ¶ 2.) In 2014, Schouest complemented Plaintiff’s work and gave her
additional quality control duties, which involved reviewing diagnoses made by her peers. (Id. ¶ 9;

Opp. at 8.) In 2017, after Hurricane Irma hit Florida, Plaintiff began working weekends and taking
Mondays and Tuesdays off, even though her supervisor continued to work regular weekdays.
(DSMF ¶¶ 10, 11.) That same year, Schouest removed Plaintiff’s quality control duties for several
weeks because of issues with her diagnoses. (Id. ¶ 12.) Plaintiff believed that Schouest
temporarily removed these duties because she had corrected slides reviewed by another
cytotechnologist, Penny Uzzetta, who Plaintiff believed Schouest “favored” over the others. (Id.
¶¶ 14, 15.) Plaintiff also believed that Schouest and Uzzetta were “romantically involved because
they seemed close[.]” (Id. ¶ 15.) At Plaintiff’s request, the lab Pathologist, Dr. Cote, reviewed
her slides and “disagreed and agreed with some of Munikah’s calls[.]” (Id. ¶ 13; Opp. at 8.)
Schouest then returned Plaintiff’s quality control duties. (Opp. at 8.)
On June 29, 2018, Schouest issued Plaintiff a written warning for working unscheduled
and unapproved overtime hours. (DSMF ¶ 17.) The warning stated that Plaintiff “failed to clock

out at the 8 mark of scheduled shift 7 of 9 days worked this pay period after 2 previous email
request[s] to keep an eye on clock out time.” (ECF 59-6, “Ex. A”.) The warning called for
corrective action, specifying that Plaintiff “will not work unscheduled shifts (weekend shifts) and
timecard will be monitored daily until this has been resolved.” (Id.) During this period, Schouest
observed that Plaintiff was diagnosing low-grade squamous intraepithelial lesion (“LSIL”) at a
rate “well above” the laboratory average. (DSMF ¶ 21.) On August 10, 2018, he brought these
“abnormal submissions” to Plaintiff’s attention and provided her with examples to show that her
diagnostic methods were not “in line” with her colleagues’ work. (Id. ¶ 22.) On September 2,
2018, after Plaintiff continued to work overtime without permission, Schouest issued another
written warning. (Id. ¶ 18.)

Ten days later, on September 12, 2018, Schouest met with Plaintiff and Human Resources
(“HR”) partner Leah Browne to place Plaintiff on a performance improvement plan (“PIP”)
because her LSIL diagnosis rate had increased in the month of August, after the issue had already
been brought to her attention. (Id. ¶ 23.) After being placed on the PIP, Plaintiff met with Browne
to complain that the PIP was unfair, and that Schouest was targeting her unfairly due to favoritism
of other cytotechnologists like Uzzetta. (Id. ¶ 29.) Plaintiff told Browne that she “would gather
evidence to prove she should not have been placed on the PIP.” (Opp. at 10.) Plaintiff then
manually went through all the slides she reviewed for quality control over the past three months
to disprove the necessity of the PIP, which entailed “extensive unauthorized off-the-clock-hours”
of work. (DSMF ¶ 32.) Plaintiff did not seek permission for these additional hours, nor did
Schouest or Browne authorize her to do so. (Id. ¶ 33.) On September 21, 2018, Schouest noticed
on Plaintiff’s daily work reports that she was spending “considerable time compiling information
regarding whether the pathologist agreed with her diagnoses, so he checked to ensure Munikah

had signed out slides for review,” and noticed that she had signed out slides “hours after she
clocked out.” (Id. ¶ 35.) Schouest discovered that Plaintiff has worked a total of 70 unauthorized,
off-the-clock hours in 2018. (ECF 59-6, “Ex. J”.)
That same day, Schouest reached out to BioReference management to report Plaintiff’s
off-the-clock work and suggested that Plaintiff move back to her pre-2017 Monday through Friday
work shift to help combat the issue. (DSMF ¶ 36.) BioReference’s Executive Vice President and
Laboratory Director Dr. James Weisberger, who was based in New Jersey, instructed that Plaintiff
should be terminated and “noted another employee was terminated for similar issues.” (Id. ¶ 37.)
Five days later, on September 26, 2018, Browne and Schouest met with Plaintiff to explain that
BioReference was terminating her employment because of her off-the-clock work, and they

explained that the decision came from management in New Jersey. (Id. ¶ 38.) Defendant
terminated Plaintiff rather than give her a warning “because of the egregiousness of her violation.”
(Id. ¶ 42.)
Following her termination, Plaintiff sent two grievance letters to Defendant. (Id. ¶ 43.) In
her first letter dated October 4, 2018, Plaintiff wrote that her grievances include “Discrimination,
Harassment, and Retaliatory Treatment; Inequitable, Prejudiced, and Weaponized Allegations of
‘Unauthorized’ Work Hours; and the Blatant Misrepresentation, Omission, and Falsification of
Facts” which “were made known to HR weeks prior to my being terminated” by Defendant. (ECF
59-4, “Ex. H”.) Plaintiff’s letter nor the attached “Explication of Grievances” contained any
allegation of race-based discrimination or examples of inappropriate commentary experienced
during her employment with Defendant. Plaintiff’s second letter, dated October 6, 2018, included
a detailed rebuttal of her diagnoses and a defense of her methods, as well as her hours worked.
(See ECF 59-4, “Ex. G”.) Under the heading “Example Eleven – Questionable Situations Worth

Noting” – Plaintiff included three examples of race-related comments she experienced while
employed by Defendant: that an unnamed colleague stated that there was a “black guy” in
management looking out for her; that aspersions were cast on other black female employees who
had joined management; and that her colleague Uzetta had speculated that another black employee
had had schizophrenia. (Id. at 21-22.) After receiving Plaintiff’s grievance letters, Defendant
investigated the circumstances around her termination and determined the termination was
appropriate. (DSMF ¶ 44.)
On September 22, 2022, Plaintiff filed a Complaint initiating this lawsuit in federal court.
(See ECF 1, “Compl.”) Plaintiff brings two claims under 42 U.S.C. § 1981 of a hostile work
environment on the basis of race (Count One) and retaliation (Cout Two). (See Compl. at 10-11.)

Defendant filed an Answer to the Complaint on January 9, 2023 (ECF 7), and the parties engaged
in discovery. Plaintiff was deposed on May 29, 2024 (see ECF 59-4, “Pl. Dep.”) and fact discovery
was completed on June 13, 2024. (ECF 38.) Defendant filed the instant motion for summary
judgment on April 22, 2025. (See Mot.) Plaintiff filed an opposition to the motion on June 24,
2025. (See Opp.)
II. LEGAL STANDARD
Federal Rule of Civil Procedure 56(a) provides that summary judgment should be granted
if the movant shows that “there is no genuine issue as to any material fact [and] the moving party
is entitled to a judgment as a matter of law.” Kreschollek v. S. Stevedoring Co., 223 F.3d 202, 204
(3d Cir. 2000); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). In deciding a
motion for summary judgment, a court must construe all facts and inferences in the light most
favorable to the nonmoving party. See Boyle v. Cnty. of Allegheny Pa., 139 F.3d 386, 393 (3d Cir.
1998) (citing Peters v. Del. River Port Auth. of Pa. & N.J., 16 F.3d 1346, 1349 (3d Cir. 1994)).

The moving party bears the burden of establishing that no genuine issue of material fact
remains. See Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “[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.” Id. at 325.
Once the moving party has met that threshold burden, the non-moving party “must do more
than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec.
Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). A fact is only “material” for
purposes of a summary judgment motion if a dispute over that fact “might affect the outcome of
the suit under the governing law.” Anderson, 477 U.S. at 248. A dispute about a material fact is

“genuine” if “the evidence is such that a reasonable jury could return a verdict for the nonmoving
party.” Id. Unsupported allegations, subjective beliefs, or argument alone, however, cannot
forestall summary judgment. See Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 888
(1988) (nonmoving party may not successfully oppose summary judgment motion by simply
replacing “conclusory allegations of the complaint or answer with conclusory allegations of an
affidavit.”). Thus, if the nonmoving 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. . . . there can be ‘no genuine issue of material fact,’ since a complete failure of
proof concerning an essential element of the nonmoving party’s case necessarily renders all other
facts immaterial.” Katz v. Aetna Cas. & Sur. Co., 972 F.2d 53, 55 (3d Cir. 1992) (quoting Celotex,
477 U.S. at 322-23). Moreover, the “mere existence of some alleged factual dispute between the
parties will not defeat an otherwise properly supported motion for summary judgment; the
requirement is that there be no genuine issue of material fact.” Anderson, 477 U.S. at 247-48.

III. ANALYSIS
Plaintiff claims that Defendant violated Section 1981 by creating a hostile work
environment and by retaliating against her on the basis of race. (Compl. at 1.) Specifically,
Plaintiff alleges that she was subjected to discrimination and harassment while employed by
Defendant because of race-related comments her colleagues made, the unequal workload allotted
to her, and the scrutiny of her work by her supervisor. (Opp. at 14.) Plaintiff insists that
management retaliated against her for having complained about such discrimination. (Compl. at
1.) Plaintiff also alleges that “the PIP and her placement on it was a result of her race” and that
her supervisor “was searching for a reason to fire her.” (Id. at 20.) Defendant contends that there
is no evidence that any actions taken by her employer or supervisor were tied to her race, and

argues that because Plaintiff never complained about the alleged conduct until the filing of this
lawsuit, the Court must dismiss both of her Section 1981 claims. (Mot. at 20.)
A. Hostile Work Environment
To succeed on a hostile work environment claim on the basis of race under Section 1981,
a plaintiff must show that (1) the employee suffered intentional discrimination because of her race;
(2) the discrimination was severe or pervasive; (3) the discrimination detrimentally affected the
plaintiff; (4) the discrimination would detrimentally affect a reasonable person in like
circumstances; and (5) the existence of respondeat superior liability. See Castleberry v. STI Grp.,
863 F.3d 259, 263 (3d Cir. 2017) (citing Mandel v. M & Q Packaging Corp., 706 F.3d 157, 167
(3d Cir. 2013)). The first four elements establish a hostile work environment, and the fifth element
determines employer liability. Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100,
104 (3d Cir. 2009).
A hostile work environment is actionable only if it is so severe and pervasive that it “alters

the conditions of the victim’s employment” and creates an “abusive working environment.” Greer
v. Mondelez Glob., Inc., 590 F. App’x. 170, 173 (3d Cir. 2014) (quoting Clark Cnty. Sch. Dist. v.
Breeden, 532 U.S. 268, 270 (2001)). The Third Circuit has made clear that “isolated incidents
(unless extremely serious) will not amount to harassment” that is cognizable under Section 1981.
Castleberry, 863 F.3d at 264 (emphasis in original) (cleaned up). “Whether an environment is
sufficiently hostile or abusive is determined by considering the totality of the circumstances,
including the ‘frequency of the conduct; its severity, and whether it is physically threatening or
humiliating, or a mere offensive utterance; and whether it unreasonably interferes with an
employee’s work performance.’” Greer, 590 F. App’x at 173 (quoting Breeden, 532 U.S. at 271).
Plaintiff’s claim fails because the conduct she alleges does not rise to the level of severity

necessary to prove a hostile work environment. Plaintiff’s own admissions at her deposition prove
there is a significant gulf between the conduct alleged in her Complaint and the conduct she recalls
during her employment at BioReference. In her Complaint, Plaintiff alleges that Uzzetta “spoke
out frequently against people of color and made comments that were derogatory, demeaning, and
caused upset.” (Compl. ¶ 4.) Plaintiff further alleges that “[at] all times” Schouest was aware of
Uzzetta’s alleged comments and participated in this “discriminatory treatment” of Plaintiff. (Id.)
However, Plaintiff’s deposition paints a different picture. Plaintiff testified that Uzzetta made
these comments in the early morning before their supervisor Schouest or other colleagues had
arrived. (Pl. Dep., 321:5-322:3; 339:20-340:7.) Plaintiff testified that these comments included
(1) that Uzzetta had a family member who was in an interracial relationship and her family
pressured the couple to get an abortion; (2) “offhand” comments about former supervisors who
were black, but those comments did not concern their race; (3) on two occasions Uzzetta referenced
that her family employed a Hispanic woman to help with childcare; (4) she once commented that

Native Americans “used to use black people to breed because of the genetics”; and (5) that she
once stayed at a plantation and surmised that stains on the floor could be “slave blood” from when
slaves were tortured. (Mot. 21-22.)2 Plaintiff has provided no evidence that Schouest was aware
of any of these insensitive and offensive comments.3 Plaintiff also testified that she never heard
Schouest make any negative, race-related comments or ever mention her race.4 (Pl. Dep., 382:6-
8.)
Plaintiff’s Complaint also alleges that a different coworker told her she “was not like other
black people, you are hardworking, you show up every day and you are different.” (Compl. ¶ 12).
However, in her deposition, Plaintiff testified that this coworker told her “I’ve never met somebody
like you before” after “just talking [about] general things” and that he did not refer to her race or

2 Plaintiff’s testimony about the specific comments made by Uzzetta can be found on the following
pages of her deposition transcript: 273-78, 280-84, 286-91, 312-13, 315-183, 326-28, 331-38. (See
Pl. Dep.)

3 Plaintiff confirmed that Schouest was not present for any of the alleged conversations, and she
also testified that she never spoke to Schouest about the comments Uzzetta or any other colleagues
made. (Pl. Dep., 342:16-343:12; 350:3-7; 352:13-353:5; 382:11-13.)

4 The one race-related remark the Complaint alleges Schouest made to Plaintiff was similarly
unsubstantiated by her deposition testimony. The Complaint alleges that Schouest’s children were
able to obtain community service credit for school by volunteering at BioReference, but when
Plaintiff asked about her son doing the same, Schouest said he did not want to be involved in “any
illegality.” (Compl. ¶ 10.) Plaintiff testified at her deposition that Schouest’s children were
sometimes in the office, but she did not know if they were volunteering or received credit, and that
when she asked if her son could come into the lab and “get some community hours” Schouest
responded that “he didn’t want anything to do with criminality.” (Pl. Dep., 367:5-17.) Plaintiff
did not ask what he meant by “criminality.” (Id., 367:18-20.)
use the word black specifically. (Pl. Dep., 354:6-10; 355:22-356:3.) Lastly, while Plaintiff alleged
that another colleague commented that “certain people have so many kids and she cannot stand it”
but Plaintiff’s kids “are ok” (Compl. ¶ 8), Plaintiff admitted that she assumed this coworker was
referencing race, though race was never explicitly mentioned. (Pl. Dep., 346:3-9.)

Plaintiff testified that these comments occurred sporadically over the course of five years,
from 2013 and 2017. (Mot. at 20.) Such sporadic comments fail to create a hostile work
environment as a matter of law. See Greer, 590 F. App’x at 173 (“Mere offensive utterances are
insufficient to create a hostile environment, even if they engender offensive feelings in an
employee.”) (internal quotations and citations omitted). First, the comments Uzzetta made
concerning race were not directed at Plaintiff. See Caver v. City of Trenton, 420 F.3d 243, 263
(3d Cir. 2005) (“[A]lthough there was some evidence in this case of inappropriate racist comments.
. . this evidence was insufficient without more to establish a hostile work environment” where “no
racist comment, written or spoken, was ever directed at [the plaintiff] himself”). Plaintiff does not
claim that Uzzetta said anything negative to Plaintiff specifically about her or that she even

commented on her race. (Pl. Dep., 325:1-5.) Indeed, Plaintiff testified that Uzzetta “didn’t say
anything negative about a black person.” (Id., 338:1-12.) While offensive and inappropriate, these
sporadic comments do not show that Plaintiff’s workplace was “permeated with discriminatory
intimidation, ridicule, and insult.” Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993). Therefore,
such comments cannot be deemed severe or pervasive as contemplated by Section 1981. See Oji
v. Gannett Fleming, Inc., 2015 WL 1137974, at *7- 8 (D.N.J. March 13, 2015) (finding alleged
racial harassment was not severe or pervasive, including comments made in plaintiff’s presence
that Asians had small genitals, use of the “n” word, and comments referring to African Americans
as drug users and thieves).
Plaintiff has also failed to demonstrate that the alleged discrimination detrimentally
affected her or would detrimentally affect a reasonable person. See Breeden, 532 U.S. at 271
(“simple teasing, offhand comments, and isolated incidents (unless extremely serious) will not
amount to discriminatory changes in the ‘terms and conditions of employment.’”). The alleged

acts, although unprofessional, do not constitute an “objective change in the conditions” of her
employment. Saxe v. State Coll. Area Sch. Dist., 240 F.3d 200, 205 (3d Cir. 2001). Notably,
Plaintiff first complained of these comments after Defendant terminated her employment. (See
Mot. at 20.) Plaintiff testified that despite these comments, she was able to continue with her
employment duties without issue. (Pl. Dep., 350:15-351:1.) Plaintiff testified that she remained
“cautious” and felt “uncomfortable” but maintained a “professional relationship” with Uzzetta.
(Id., 351:2-10.) This is a far cry from the “objectively hostile” environment required to prove her
claim. Greer, 590 F. App’x at 173 (“The threshold for pervasiveness and regularity of
discriminatory conduct is high.”) And because Plaintiff has not established that her supervisor
was ever made aware of Uzzetta’s racially insensitive remarks, she cannot establish respondeat

superior liability. For these reasons, the Court grants summary judgment in Defendant’s favor
and dismisses Count One of the Complaint.
B. Retaliation
To prove retaliation in violation of Section 1981, Plaintiff must establish a prima facie case
that (1) she engaged in protected activity, (2) her employer took an adverse employment action
against her, and (3) there was a causal connection between his participation in the protected activity
and the adverse employment action. Est. of Oliva ex rel. McHugh v. New Jersey, 604 F.3d 788,
798 (3d Cir. 2010) (citing Moore v. City of Philadelphia, 461 F.3d 331, 340–41 (3d Cir. 2006)).
“In a retaliation case a plaintiff must demonstrate that there had been an underlying section 1981
violation.”5 Id. The key inquiry of the second element of a prima facie case is whether the alleged
retaliation “well might have dissuaded a reasonable worker from making or supporting a charge
of discrimination.” Id. (quoting Burlington N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 68
(2006)). The third element of the prima facie case “identif[ies] what harassment, if any, a

reasonable jury could link to a retaliatory animus.” Id. (citing Moore, 461 F.3d at 342) (internal
citation omitted). Once a plaintiff establishes a prima facie case, the burden shifts to the employer
to advance a legitimate non-retaliatory reason for its conduct. Id. If an employer advances such a
reason, a plaintiff then must show that the proffered reason was a pretext for retaliation. Moore,
461 F.3d at 342.
Plaintiff alleges the adverse employment action she experienced was that Defendant placed
her on a PIP and that “the whole reason her work was being scrutinized was due to her race.”
(Opp. at 19.) Plaintiff’s retaliation claim fails for multiple reasons. First, she has not demonstrated
that she engaged in protected activity.6 Though Plaintiff claims that after she was placed on a PIP,
she complained to HR that she was treated differently because of her race7 (Compl. ¶ 23), the

record shows that she did not list race as an issue or bring it up in her meeting with Schouest or
Browne, Defendant’s HR representative. (ECF 59-4, “Ex. P”). Plaintiff testified at her deposition

5 Generally, to establish a basis for relief under Section 1981 a plaintiff must show “(1) that he
belongs to a racial minority; (2) an intent to discriminate on the basis of race by the defendant; and
(3) discrimination concerning one or more of the activities enumerated in § 1981.” Pryor v. Nat'l
Collegiate Athletic Ass'n, 288 F.3d 548, 569 (3d Cir.2002) (internal citation and quotation marks
omitted).

6 Plaintiff does not identify what protected activity she engaged in while employed by Defendant.
This is a threshold requirement of her retaliation claim. Est. of Oliva, 604 F.3d at 798; Moore, 461
F.3d at 340–41.

7 A complaint of racial discrimination or profiling is recognized protected activity under Section
1981. See Est. of Oliva, 604 F.3d at 799.
that she complained about the PIP being unfair because it related to correcting Uzzetta’s work,
who Plaintiff believed her supervisor had a romantic relationship with and favored over Plaintiff.
(Pl. Dep., 413:16- 415:2; 435:16-19.) Browne’s notes from her meeting with Plaintiff after she
was placed on the PIP indicate that Plaintiff “brought up some concerns about” Schouest having

“his favorites, that his tone is sometimes demeaning,” but she did not use the words discrimination
or harassment. (ECF 59-6, “Ex. B” at D193).
Defendant has put forth legitimate, non-retaliatory reasons for Plaintiff’s PIP and
termination that Plaintiff has failed to rebut. Plaintiff violated Defendant’s policy against working
unrecorded hours which “clearly states that those who do not accurately record their time are
subject to discipline, up to and including termination.” (DSMF ¶ 8.) Plaintiff was warned about
working unauthorized time twice before she was placed on a PIP, including in a written warning
that Plaintiff signed (see Ex. A), but she continued to violate the Policy despite those warnings and
despite the PIP. Plaintiff admits in her brief that her supervisor “found violations of policy” but
“it is clear that other employees do the exact same thing but do not get in any trouble for it.” (Opp.

at 20.) However, Plaintiff has not produced any evidence of other employees who did “the exact
same thing” but did not face adverse employment action in the form of a PIP or termination.8 (Id.)
The decision to terminate Plaintiff, which came from management in New Jersey, specifically
mentioned that “another employee was terminated for similar issues.” (DSMF ¶ 37.) The evidence
uncovered in discovery points to “ongoing unacceptable conduct rather than” protected activity

8 A review of other cytotechnologists in Defendant’s Florida lab showed that “over a three-month
period, only three had any off-the-clock work, one with an eleven minute violation, one with a
thirty-two minute violation, and one with several violations that amount to less than five hours
total.” (Mot. at 37) (citing ECF 59-6, “Ex. I”.) Though none of these employees were terminated,
these are significantly less unauthorized overtime hours than the seventy that Plaintiff worked
while employed by Defendant.
like filing a complaint or complaining of racial discrimination. Jones v. Sch. Dist. of Philadelphia,
198 F.3d 403, 415 (3d Cir. 1999) (affirming district court’s grant of summary judgment on
retaliation claim). Plaintiff has therefore failed to rebut Defendant’s legitimate, non-retaliatory
reasons for the adverse employment action.

Because Plaintiff cannot identify protected activity she engaged in, an underlying Section
1981 violation, or a pretextual reason for the adverse employment action taken against her, she has
failed to establish a prima facie case of retaliation under Section 1981, and the Court grants
summary judgment in Defendant’s favor. See Est. of Oliva, 604 F.3d at 799 (affirming district
court’s grant of summary judgment in defendant’s favor in Section 1981 retaliation claim).
IV. CONCLUSION
For the reasons stated above, Defendant’s motion for summary judgment (ECF 59) is
GRANTED. Plaintiff’s Complaint (ECF 1) is DISMISSED with prejudice. An appropriate order
follows.
/s/ Jamel K. Semper .
HON. JAMEL K. SEMPER
United States District Judge

Orig: Clerk
cc: Jessica S. Allen, U.S.M.J.
Parties

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11259688. Public record. Not legal advice.