Cardenas v. Massey

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

10-16-2001

Cardenas v. Massey

Precedential or Non-Precedential:

Docket 00-5225

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Filed October 16, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

No. 00-5225

GERARD CARDENAS,

Appellant

v.

JON MASSEY; JAMES REBO; ROBERT LIPSCHER;

JAMES CIANCIA; DEBORAH PORITZ;

STATE OF NEW JERSEY

On Appeal from the United States District Court

for the District of New Jersey

(D.C. No. 96-cv-04077)

District Judge: Hon. Garrett E. Brown, Jr.

Argued: March 1, 2001

Before: SLOVITER, NYGAARD and ROTH, Circuit Ju dges

(Filed: October 16, 2001)

Fredric J. Gross (Argued)

Of Counsel: Susan E. Babb

Noel C. Crowley

Mount Ephraim, New Jersey 08059

Attorneys for Appellant

John J. Farmer, Jr.

Attorney General of New Jersey

Michael J. Haas

Assistant Attorney General

Of Counsel

Patrick Dealmeida

Deputy Attorney General

Of Counsel

George N. Cohen (Argued)

Deputy Attorney General

On the Brief

Trenton, New Jersey 08625

Attorneys for Appellees

Jennifer S. Goldstein

Washington, D.C. 20507

Attorney for EEOC

OPINION OF THE COURT

SLOVITER, Circuit Judge.

I.

Plaintiff-appellant Gerard Cardenas, a Mexican-American,

was hired as of January 29, 1990 as the manager of the

Office Systems Unit in the Information Systems Division

("ISD") of New Jersey's Administrative Office of the Courts

("AOC") following the retirement of Joseph Ribsam.

Cardenas asserts that through 1989 every manager or

supervisor in the ISD was a white non-Hispanic male.

Appellee James Rebo, head of the ISD, had advertised the

position at pay grades G-32 and G-30. Cardenas was

appointed at the G-30 level. Cardenas resigned on March 1,

1996. On August 23, 1996, he filed this suit against Jon

Massey, his immediate supervisor, and Rebo (individually

and in their official capacities), as well as Robert Lipscher,

Director of the AOC (individually), James Ciancia

(Lipscher's successor, in his official capacity), Deborah

Poritz (New Jersey's Chief Justice, in her official capacity),

2

and the State of New Jersey. The complaint stated

disparate pay, hostile work environment, and retaliation

claims under 42 U.S.C. S 1981, 42 U.S.C. S 2000e, et seq.

("Title VII"), and the New Jersey Law Against Discrimination

("LAD"), N.J. Stat. Ann. S 10:5-1, et seq., and a common law

claim for intentional infliction of emotional distress against

Massey. Essentially, the claims raised in Cardenas' 128

paragraph complaint revolve around his contention that he

was hired at a lower grade level than merited by the work

he was assigned, received disparate pay as a result, was

not promoted as merited, was the subject of retaliation, and

was subject to a hostile work environment, all as a result

of his ethnicity.

After discovery, the defendants moved for summary

judgment and Cardenas moved for partial summary

judgment on his disparate pay claims. The District Court

granted defendants' motion, except as to the LAD and

S 1981 hostile work environment claims against defendant

Massey, and denied Cardenas' motion by opinion dated

December 2, 1999 (hereafter "Dec. 2 opinion"). The court

subsequently denied Cardenas' motion for reargument by

opinion dated February 2, 2000. Cardenas settled his

claims against Massey, resolving the remainder of the

action. He then filed a timely notice of appeal as to the

remaining defendants. On appeal, the EEOC has filed an

amicus curiae brief solely as to the issue of the proper

application of the statute of limitations to disparate pay

claims.

The District Court had jurisdiction over this action under

28 U.S.C. SS 1331, 1343, 1367. This court has appellate

jurisdiction under 28 U.S.C. S 1291.

II.

Cardenas has set forth a litany of incidents from his six

years employment at the AOC that he contends show

discrimination, retaliation, and a hostile work environment.

Our review of the grant of summary judgment is plenary.

See Wheeler v. Towanda Area Sch. Dist., 950 F.2d 128, 129

(3d Cir. 1991).

3

Federal Rule of Civil Procedure 56(c) provides for

summary judgment when "there is no genuine issue as to

any material fact and . . . the moving party is entitled to a

judgment as a matter of law." An issue is genuine if "the

evidence is such that a reasonable jury could return a

verdict for the nonmoving party." Anderson v. Liberty Lobby,

Inc., 477 U.S. 242, 248 (1986). In Anderson , the Court

explained that the judge's role when adjudicating a motion

for summary judgment "is not himself to weigh the evidence

and determine the truth of the matter but to determine

whether there is a genuine issue for trial." Id. at 249. In

making this determination, a court is to draw all reasonable

inferences in favor of the non-moving party. See Berner Int'l

Corp. v. Mars Sales Co., 987 F.2d 975, 978 (3d Cir. 1993).

In other words, Rule 56(c) "mandates the entry of summary

judgment, after adequate time for discovery and upon

motion, against a party who 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 Corp. v. Catrett, 477 U.S.

317, 322 (1986).

III.

Cardenas' disparate pay claims stem, at least in part,

from his initial hiring at the G-30 level. Cardenas contends

that he performed all of the responsibilities of his

predecessor, who was Chief, Office Services Systems, a G-

31, and came to assume additional ones (the "PC/LAN

duties"). He contends that Richard Chelenza, another mid-

level ISD manager, previously had the PC/LAN duties and,

as a result, Chelenza's pay grade had been raised from G-

31 to G-33 at Rebo's request. He claims he resolved LAN

problems caused by inadequate materials supplied to the

AOC by AT&T, negotiating a deal with the company

whereby it replaced over $400,000 of defective materials

and yet he remained at pay level G-30, the grade he held

throughout his six-year tenure at the AOC.1

_________________________________________________________________

1. After June 1994, all AOC managers' salaries were frozen. It is not

clear whether the freeze applied to promotions.

4

The District Court recognized that Cardenas asserted

three legal bases for his wage discrimination claim--

S 1981, LAD, and Title VII, and that a separate limitations

period applies to each. Cardenas' S 1981 claims are subject

to a two-year statute of limitations. See Goodman v. Lukens

Steel Co., 482 U.S. 656, 662 (1987); N.J. Stat. Ann.

S 2A:14-2. A two-year statute of limitations also applies to

LAD claims whose "operative facts" occurred after July 27,

1993, whereas LAD claims based on events occurring

before this date are subject to a six-year statute of

limitations. See Martinez v. Nat'l Broadcasting Co., 877 F.

Supp. 219, 230 (D.N.J. 1994); Montells v. Haynes , 133 N.J.

282, 286, 627 A.2d 654, 655 (1993). Title VII claims must

be the subject of a charge filed with the EEOC within either

180 days or 300 days of the complained-of unlawful

employment practice, depending upon whether the state

has an anti-discrimination law, see Miller v. Beneficial

Mgmt. Corp., 977 F.2d 834, 842 (3d Cir. 1992), and a

complaint must be filed in the district court within 90 days

of receipt of a right-to-sue letter from the EEOC, see 42

U.S.C. S 2000e-5(f)(1). The District Court calculated that to

maintain an action for disparate pay based on his pay

grade under Title VII, Cardenas had to file a complaint with

the EEOC on or before July 29, 19902; to maintain a S 1981

action, he had to file his complaint in the district court on

or before January 29, 1992; and to maintain an action

under LAD, he had to file his complaint in the district court

on or before January 29, 1996.

The District Court found that because Cardenas'

disparate pay claims stem from his initial pay grade

classification, they accrued when he began working at the

AOC on January 29, 1990, and are therefore time-barred.

It rejected Cardenas' argument that each paycheck he

received over the course of his AOC employment, which

_________________________________________________________________

2. The court incorrectly believed that under Title VII Cardenas' claims

had to be presented to the EEOC within 180 days of the alleged unlawful

employment practice. In fact, because New Jersey has an anti-

discrimination law, a claim must be presented to the EEOC within 300

days of the alleged unlawful employment practice. See 42 U.S.C.

S 2000e-5(e)(1), construed in Seredinski v. Clifton Precision Prods., 776

F.2d 56, 61-62 (3d Cir. 1985).

5

ended on March 1, 1996, constituted a separate

discriminatory act that brought his claims within the

statutes of limitations pursuant to the continuing violations

doctrine. See Miller, 977 F.2d at 842 ("[I]f the alleged

discriminatory conduct is a `continuing violation,' the

statute of limitations begins to run on the date of the last

occurrence of discrimination, rather than the first."). Citing,

inter alia, Lorance v. AT&T Techs., Inc., 490 U.S. 900

(1989), rev'd by the Civil Rights Act of 1991, S 112,

Delaware State Coll. v. Ricks, 449 U.S. 250, 257 (1980),

and United Airlines, Inc. v. Evans, 431 U.S. 553, 560

(1977), the court found the continuing violations doctrine

inapplicable because Cardenas described his pay checks as

"consequences" of his pay grade and did not allege the

AOC's pay-grade structure was facially discriminatory.

We believe that is too narrow a reading of the facts and

the law. In Evans, the discrimination, which was forcing

plaintiff to resign when she married, occurred outside the

statutory period. Although she was rehired within the

statutory period, her seniority was calculated from the date

of her re-hire. The Supreme Court rejected plaintiff 's

argument that this application of the seniority system

constituted a continuing violation because it gave present

effect to the employer's past discriminatory act by

disregarding the seniority she had accrued before her

forced resignation. The Court held that no present violation

existed because the seniority system, its adoption, and its

operation were nondiscriminatory. See Evans, 431 U.S. at

557-60.

In Ricks, the employer College denied the plaintiff

professor tenure and gave him a "terminal" one-year

contract pursuant to College policy. The tenure denial was

outside the statutory period, but plaintiff 's final day of

employment was not, and he argued that his discharge was

a continuing violation. The Court disagreed, finding that it

was "a delayed, but inevitable, consequence of the denial of

tenure. In order for the limitations periods to commence

with the date of discharge, Ricks would have had to allege

and prove that the manner in which his employment was

terminated differed discriminatorily from the manner in

which the College terminated other professors who also had

6

been denied tenure." Ricks, 449 U.S. at 257-58. The Court

cited Evans for the proposition that we look not for

continuing effects but for present acts of discrimination. Id.

In Lorance, the plaintiffs were demoted under a facially

neutral seniority system, operated in a non-discriminatory

manner but allegedly adopted with a discriminatory

purpose outside the statutory period. The Court, citing

Evans, Ricks, and the special status of seniority systems in

discrimination law, Lorance, 490 U.S. at 911-12, declined

to apply the continuing violations doctrine, holding that

"[b]ecause the claimed invalidity of the . . . seniority system

is wholly dependent on the alleged illegality of signing the

underlying [collective bargaining] agreement, it is the date

of that signing which governs the limitations period." Id. at

911.

In all three cases, the Supreme Court held there was no

continuing violation where the effects of prior

discriminatory acts, but no actual discrimination, occurred

within the limitations period. The Evans-Ricks-Lorance line

of cases bars claims where the relevant aspect of the

employment system (such as promotion, seniority, or

termination) is facially neutral, and any discrete

discriminatory conduct took place and ceased outside the

period of limitations. As the Lorance Court observed, "[w]ith

a facially neutral system the discriminatory act occurs only

at the time of adoption, for each application is

nondiscriminatory." Id. at 912 n.5. However, this line of

cases does not bar claims based on conduct which is

alleged to have "continued to discriminate unlawfully each

time it was applied." Anderson v. Zubieta, 180 F.3d 329,

336 (D.C. Cir. 1999).

Here, Cardenas alleges the decision not to promote him,

or increase his wage level to one appropriate to his skills,

was made on an ongoing basis. The facially-neutral-system

analysis of Evans, Ricks, and Lorance is thus inapposite. A

more pertinent Supreme Court decision is Bazemore v.

Friday, 478 U.S. 385 (1986), where the Court reversed the

dismissal of a Title VII disparate pay claim on statute of

limitations grounds and held that each of plaintiffs' pay

checks constituted a distinct violation of their right to

nondiscriminatory compensation. The Court stated that the

7

limitations defense could not be based on the ground that

the disparities stemmed from discriminatory policies pre-

dating the effective date of Title VII, explaining:

that the [employer] discriminated with respect to

salaries prior to the time it was covered by Title VII

does not excuse perpetuating that discrimination after

[it] became covered by Title VII. . . . A pattern or

practice that would have constituted a violation of Title

VII, but for the fact that the statute had not yet

become effective, became a violation upon Title VII's

effective date, and to the extent an employer continued

to engage in that act or practice, it is liable under that

statute. . . . Each week's paycheck that delivers less to

a black than to a similarly situated white is a wrong

actionable under Title VII, regardless of the fact that this

pattern was begun prior to the effective date of Title VII.

Bazemore, 478 U.S. at 395-96 (third emphasis added)

(Brennan, J., concurring in part, joined by all members of

the Court).

Thereafter, in Miller v. Beneficial Management Corp., 977

F.2d 834 (3d Cir. 1992), a case brought under the Equal

Pay Act rather than Title VII, this court came to a similar

conclusion. We held that the statute of limitations for an

EPA claim began to run on the date the plaintiff received

her last allegedly discriminatory paycheck. In fact,"[m]ost

courts appear to treat pay discrimination claims as

continuing violations." Miller, 977 F.2d at 843. Certainly, in

this circuit, " `discriminatory wage payments constitute a

continuing violation. . . . To hold otherwise would permit

perpetual wage discrimination by an employer whose

violation . . . had already lasted without attack for [longer

than the limitations period].' " Id. (quoting Hodgson v.

Behrens Drug Co., 475 F.2d 1041, 1050 (5th Cir. 1973)).

The EEOC filed its brief as amicus curiae in this case

because of its view that the District Court erroneously

applied the statute of limitations to Cardenas' Title VII

claim. The EEOC states that "both Bazemore and Miller

contemplate that an individual may challenge allegedly

discriminatory wage payments so long as one such

payment falls within the limitations period." Br. of EEOC at

8

14. It further states that "Cardenas received allegedly

discriminatory paychecks within 300 days prior to the filing

of his administrative charge, and so his claim should have

been deemed timely." Id. at 10. The EEOC argues that if the

District Court's opinion is allowed to stand, it"would

frustrate enforcement of Title VII by improperly insulating

current discriminatory conduct from challenge under the

statute." Id. at 1.

In its opinion on Cardenas' request for reargument, the

District Court rejected Cardenas' argument that it had

overlooked the Miller decision. The court first noted that

Cardenas had not cited Miller and then held that Miller was

not controlling because it analyzed the statute of limitations

under the Equal Pay Act whereas Cardenas sued under

Title VII. However, the Supreme Court's opinion in

Bazemore concerns a Title VII claim. Moreover, application

of the continuing violations doctrine is not dependent on

which statute gives rise to the plaintiff 's claim. See

Brinkley-Obu v. Hughes Training, Inc., 36 F.3d 336, 345-51

(4th Cir. 1994) (applying continuing violation theory to both

Title VII and EPA disparate pay claims). Although Miller

may have been brought under a different statute, its

holding is still applicable here. Cf. Miller, 977 F.2d at 843

(relying in part on Hall v. Ledex, Inc., 669 F.2d 397 (6th

Cir. 1982) (Title VII and EPA) and Satz v. I.T.T. Fin. Corp.,

619 F.2d 738 (8th Cir. 1990) (Title VII)). Finally, there are

numerous cases in other circuits that have followed the

Bazemore decision to hold that in a Title VII case claiming

discriminatory pay, the receipt of each paycheck is a

continuing violation. See, e.g., Anderson v. Zubieta, 180

F.3d 329, 335-37 (D.C. Cir. 1999); Ashley v. Boyle's

Famous Corned Beef Co., 66 F.3d 164, 167-68 (8th Cir.

1995) (en banc); Brinkley-Obu, 36 F.3d at 345-51.

The defendants seek to uphold the summary judgment

on the disparate pay claim on the ground that the

undisputed facts show that any difference in pay between

the employees in the ISD unit who also had the title of

project manager "was a result of the varying degrees of

seniority, experience, education and difference in job

responsibilities." Br. of Appellees at 19. It may, indeed, be

true that whatever differences existed were the result of

9

factors other than ethnicity and that the failure to promote

Cardenas to a level that he claims would have been

consistent with his responsibilities may have been due to

his failure to request and/or merit promotion. However,

because the District Court disposed of the disparate pay

claim on the basis of the statute of limitations rather than

any merits factor, we cannot reach those issues but will

leave them to the District Court on remand.3

For the reasons set forth above, we will reverse the

District Court's order granting summary judgment for

defendants on Cardenas' disparate pay claims and remand

the case for a determination on the merits.

IV.

Cardenas contends he became subject to a hostile work

environment after Jon Massey became his immediate

supervisor on March 7, 1991 pursuant to an ISD

reorganization. According to Cardenas, Massey subjected

him to ethnic slurs and comments, beginning with their

initial interview and continuing through 1994. Among other

things, Massey allegedly called Cardenas the "boy from the

barrio," app. at 1185, asked Cardenas why he had

anglicized his name, and regularly dealt with professional

disagreements by questioning whether Cardenas intended

to pull out a switchblade. Until 1993, Cardenas also found

derogatory anonymous messages on the marker board in

his cubicle, which he believes Massey wrote. The most

offensive message used the word "mojado," which means

"wetback." App. at 895, 1189.

He further contends that Massey discriminated against

him in completing performance evaluations.4 Regarding

_________________________________________________________________

3. Nor do we decide whether the initial decision to hire Cardenas at a

level 30 was due to ethnicity or, as defendants argue, the policy or

practice not to hire any new hire at level 32. We will give the District

Court the opportunity to decide in the first instance whether it is a

separate claim or survives the statute of limitations bar because it is

inextricably bound to the disparate pay claim.

4. The AOC performance evaluations consist of ten component ratings

and an overall rating. The component categories are: (1) knowledge of

10

Massey's disparate performance evaluations, Cardenas has

provided evidence that appears to show that Massey

regularly rounded up the component ratings when

determining the overall scores of non Hispanic subordinates

but rounded down when calculating ratings of Cardenas,

sometimes to the point of rating Cardenas lower overall

than white employees with lower component ratings. 5

Cardenas contends that Rebo also discriminated against

him, though more subtly than Massey. For example, he

points out that Rebo assigned minorities and trainees

disproportionately to his unit and claims that Rebo

tarnished his reputation by spreading the word that he was

an affirmative-action hire. He further notes that Rebo

reviewed each of Massey's performance evaluations (of

Cardenas and of Massey's other subordinates) before they

were issued, and had the authority to change the ratings.

App. at 971-73.

Finally, Cardenas asserts Rebo and Massey collectively

impeded his job performance through other facially neutral

management devices, such as knowingly contradictory

instructions and assignments incompatible with his staff

resources. He claims that Massey insisted Cardenas obey

him even when he contradicted Rebo and did not defend

_________________________________________________________________

work, (2) attendance history, (3) quantity of work, (4) quality of work,

(5)

planning and organization, (6) initiative, (7) mental ability, (8)

analytical

ability and judgment, (9) leadership, and (10) development of personnel.

The evaluator gives the employee one of five rankings (unsatisfactory,

marginal, satisfactory, commendable, and outstanding/superior) for each

category and an overall rating. See, e.g., App. at 206-13.

5. Cardenas assigned each rating a number, from 0 to 4, then calculated

his "GPA" from the ratings in the component categories, which he then

compared to the overall ratings. Massey gave Cardenas an overall rating

of "satisfactory" or "2" for GPAs of 2.5, 2.4, and 2.6, and an overall

rating of "marginal" or "1" for a GPA of 1.7. App. at 474-505. By

contrast, Massey gave other subordinates overall ratings of

"commendable" or "3" for GPAs of 2.4, 2.55, 2.6, and 2.6, and a

"satisfactory +" or "2.5" for a GPA of 2.2. App. at 896-935. Notably,

Cardenas himself received an overall rating of "commendable" or "3" for

a GPA of 2.6 in an evaluation he received from his previous supervisor.

App. at 216-23. We express no opinion on the accuracy of Cardenas'

rating system, an issue for the trier of fact.

11

Cardenas when his express directives got Cardenas into

trouble.

Cardenas claims that he complained to Massey, Rebo,

Lipscher, Bobby Battle (the AOC's Equal Employment

Opportunity ("EEO") Officer), and Human Resources

personnel about Massey's harassment to no avail. He

asserts that Battle refused to address the problem

informally and that the harassment continued unabated

until Cardenas submitted a formal complaint on December

30, 1994, which he had been reluctant to do for fear of

retaliation. Defendants emphasize that Cardenas made no

allegations of specific discrimination to anyone in the AOC

until the summer of 1994, and that many of his complaints

were non-specific or accompanied by requests that the

particular incident be treated as minor or that he be left to

deal with the problem on his own to avoid reprisals.

The failure to complain to higher management did not

defeat plaintiffs' Title VII claims in Faragher v. Boca Raton,

524 U.S. 775, 782 (1998), or Burlington Industries, Inc. v.

Ellerth, 524 U.S. 742, 748-49 (1998), and we see no reason

why the failure to file a formal complaint would defeat

Cardenas' claim here. As noted, he did subsequently file a

complaint pursuant to the AOC procedures. Thus, at most,

if Cardenas sent a mixed message, it would be an issue

going to his credibility as to the severity of the harassment.

Cardenas did not complete providing detailed allegations

for his EEO complaint until March 1995. On March 3,

1995, the AOC rejected his request that he and his entire

unit be transferred out of the ISD immediately, but offered

him three temporary alternative work assignments for the

pendency of the EEO investigation. Cardenas asserts that

the options were unacceptable because they either left him

under Rebo's or Massey's supervision or demoted him by

removing his management responsibilities. Moreover,

Cardenas claims that when he nonetheless professed

interest in one option, his efforts to accept it were

stonewalled. On April 6, 1995, he filed a charge with the

EEOC.

Cardenas contends that the internal EEO investigation

was overly long, pointing out that the investigators did not

12

send charges to Rebo and Massey until June 1995, and

then granted their request for an extension to respond. The

EEO did not issue a report until October 30, 1995.

Cardenas received a copy of the report in November 1995.

He argues that the report's conclusion finding "no evidence

of discrimination," App. at 285, is unfounded. He also notes

that the investigation did not address his disparate pay

claim.

Cardenas has also asserted a claim of retaliation which

he attributes to his engaging in three protected activities in

1994 and 1995 known to Massey and Rebo. He supported

a subordinate's sexual harassment allegations against Rebo

in June 1994, filed a formal discrimination complaint

against Massey and Rebo with the AOC's EEO that

December, and offered to support a lateral job applicant's

EEO complaint against Massey in January 1995. Cardenas

claims to have suffered retaliation from Rebo and Massey

for his protected activities. He cites, for example, an

allegedly undeservedly low performance evaluation in

August 1994, a threat of discipline which sent him to the

hospital with stress-induced chest pains, increased

personnel disruptions in his unit, and an unusual

summons to the human resources department which

provoked a second stress attack severe enough to warrant

a second hospital visit.

In November 1995, allegedly realizing he could not

salvage his job, Cardenas began looking for new

employment. He left the AOC on March 1, 1996, and

received his "right-to-sue" letter from the EEOC on May 28,

1996.

A hostile work environment, first recognized by the

Supreme Court as a basis for a discrimination claim under

Title VII in Meritor Savings Bank, FSB v. Vinsen , 477 U.S.

57, 65-68 (1986), in a case claiming sexual harassment, is

now established as a basis for various discrimination

claims. See Faragher v. Boca Raton, 524 U.S. 775, 786-87

(1998) (discussing the Court's "repeated" clarifications of

the foundations of hostile work environment claims). In

order to establish a hostile work environment claim under

Title VII, Cardenas must show that (1) he suffered

intentional discrimination because of his national origin; (2)

13

the discrimination was pervasive and regular; (3) it

detrimentally affected him; (4) it would have detrimentally

affected a reasonable person of the same protected class in

his position; and (5) there is a basis for vicarious liability.

See Aman v. Cort Furniture Rental Corp., 85 F.3d 1074,

1081 (3d Cir. 1996).

In considering whether Cardenas has established the

elements of a hostile work environment claim, the record

must be evaluated as a whole to decide whether the

plaintiff has proved his or her case, because "[p]articularly

in the discrimination area, it is often difficult to determine

the motivations of an action and any analysis is filled with

pitfalls and ambiguities. . . . [A] discrimination analysis

must concentrate not on individual incidents, but on the

overall scenario." Durham Life Ins. Co. v. Evans, 166 F.3d

139, 149 (3d Cir. 1999) (quotations omitted); see also

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

("Whether an environment is `hostile' . . . can be determined

only by looking at all the circumstances."). Title VII applies

to both "facially neutral mistreatment . . .[and] overt

[ethnic] discrimination . . . [which] in sum constitute[ ] the

hostile work environment." Id. at 148; 6 see also Aman, 85

F.3d at 1081-84 (discussing the increased sophistication of

modern violators, the obligation of courts to be

"increasingly vigilant" against subtle forms of

discrimination, and the importance of allowing plaintiffs to

prove discrimination indirectly: "[i]n light of the suspicious

remarks [arguably racial slurs] . . . , a reasonable jury

could interpret [facially neutral] behavior[such as stolen

time cards] as part of a complex tapestry of

discrimination").

The District Court accepted that Massey's alleged

remarks and the anonymous marker-board messages

satisfied the causation element of the hostile work

_________________________________________________________________

6. We draw here on standards developed in sexual harassment cases. As

the Supreme Court observed in Faragher,"[a]lthough racial and sexual

harassment will often take different forms, and standards may not be

entirely interchangeable, we think there is good sense in seeking

generally to harmonize the standards of what amounts to actionable

harassment." Faragher, 524 U.S. at 787 (1998).

14

environment claims but noted that "some of the other

allegedly hostile actions taken by the [appellees] were not

overtly ethnically based." Dec. 2 opinion at 20. However,

reviewing the totality of defendants' alleged discriminatory

conduct as required by Durham, the District Court

concluded that Cardenas' "only factual allegations . . . that

arguably can be considered severe and pervasive instances

of ethnically hostile conduct are [his] claims regarding

Massey's disparaging comments about [Cardenas']

ethnicity." Id. at 24. The court held that assigning minority

workers to a minority manager's unit does not create a

hostile environment, found that Cardenas "failed to come

forward with any evidence . . . indicat[ing] racial hostility

infected the [performance] evaluation process," id. at 23,

and found no evidence that Massey and Rebo set Cardenas

up to fail. Although the District Court agreed that Cardenas

had presented evidence of ethnic animus on Massey's part,

the court stated that "a plaintiff cannot prove a case of

ethnic discrimination merely by . . . raising the specter of

discrimination over otherwise legitimate management

decisions that may have negatively impacted a minority

employee." Id. at 24.

We cannot say that the District Court's evaluation of the

evidence was not a reasonable one for a trier of fact to

reach. However, the District Court declined to examine the

possibility that defendants' "management decisions"

masked discriminatory intent. As this court has previously

emphasized, the advent of more sophisticated and subtle

forms of discrimination requires that we analyze the

aggregate effect of all evidence and reasonable inferences

therefrom, including those concerning incidents of facially

neutral mistreatment, in evaluating a hostile work

environment claim. See Durham, 166 F.3d at 148-49;

Aman, 85 F.3d at 1081-84.

In addition to the oral and written ethnic slurs cited by

the District Court, Cardenas has provided evidence from

which a jury might find ethnic animus underlying other

ostensibly nondiscriminatory incidents. For example,

disproportionate assignment of minority employees to the

only unit supervised by a minority manager might create an

impression of, or be motivated by an intent to achieve,

15

segregation. Likewise, consistently lower performance

evaluations for a protected class member as compared to

non-protected co-workers may indicate discriminatory

intent.7

Defendants contest the manner in which Cardenas has

made numerical equivalents, but Cardenas' figures create

an inference strong enough that we cannot disregard the

evidence for purposes of summary judgment. The AOC's

evaluation process is subjective and a jury could conclude

that Massey, who allegedly subjected Cardenas to

ethnically-charged comments, was motivated by ethnic

animus in giving Cardenas lower overall ratings than white

employees when Cardenas had higher component ratings.

Similarly, a jury could find that Rebo might reasonably

have been expected to notice and address this suspect

pattern.

Finally, Cardenas has provided evidence from which a

jury could conclude that Rebo and Massey set him up to

fail. Cf. Harris, 510 U.S. at 23 (one of many factors which

may indicate hostile work environment is "whether it

unreasonably interferes with an employee's work

performance.").8 For example, Cardenas testified at his

_________________________________________________________________

7. One commentator has written of the effect of similar conduct in sexual

harassment situations. See Vicki Schultz, Reconceptualizing Sexual

Harassment, 107 Yale L.J. 1687 (1998) cited with approval in Durham

Life Ins. Co. v. Evans, 166 F.3d 139, 149 (3d Cir. 1999) (observing that

some prevalent forms of sexual harassment include"denigrating

[victims'] performance . . . , providing sexist evaluations of [victims']

performance or denying them deserved promotions, . .. denying [victims]

the perks or privileges that are required for success, . . . [and]

engaging

in taunting, pranks, and other forms of hazing designed to remind

[victims] that they are different and out of place.").

8. "To render visible many of the . . . forms of harassment that remain

hidden, we should also recognize that much of the behavior that creates

a hostile working environment is conduct that has the purpose or effect

of undermining the perceived or actual competence of[the victim of

discrimination]." Schultz, supra note 7, at 1762. Indeed, "there are

diverse ways of subverting a [victim's] perceived or actual competence.

Sometimes it takes the form of deliberate sabotage of a [victim's] work

performance, such as . . . simply assigning her tasks that are impossible

to accomplish." Id. at 1764. (internal citations omitted).

16

deposition regarding an incident where, pursuant to

Massey's orders, he curtailed the scope of a presentation

requested by Rebo, and was publicly berated by Rebo as a

result. App. at 1017-18. If true, this may be analogous to

incidents referred to in Durham which were included as

constituting a hostile workplace. 166 F.3d at 145-46. He

also claims that he was given assignments too complicated

for his unit, which had a disproportionately high number of

trainees, to complete successfully. See id.

The District Court determined that a jury could conclude

that Cardenas' allegations regarding the ethnically

harassing comments by Massey were severe and pervasive

enough and would offend a reasonable person, satisfying

the elements of the hostile work environment claim as to

Massey. Feb. 2 op. at 25. However, it found "a paucity of

credible evidence" showing that the other defendants acted

in a discriminatory manner based on Cardenas' ethnicity.

Id. at 24. Although Cardenas may not have presented as

much evidence as did plaintiffs in other hostile workplace

environment cases, we cannot conclude that he has not

presented enough evidence to make a genuine issue of

material fact. We believe that a jury could determine that

this hostile work environment stemmed from several forms

of facially neutral mistreatment as well as from Massey's

facially discriminatory comments.

We have no reason to believe the result would be any

different under the LAD. To establish a hostile work

environment claim under the LAD, a plaintiff "must

demonstrate that the defendant's conduct (1) would not

have occurred but for the employee's [national origin]; and

[the conduct] was (2) severe or pervasive enough to make a

(3) reasonable [person of the same protected class] believe

that (4) the conditions of employment are altered and the

working environment is hostile or abusive." Taylor v.

Metzger, 152 N.J. 490, 498, 706 A.2d 685, 688-89 (1998)

(quotations omitted). The elements of this claim closely

resemble the first four elements of the Title VII hostile work

environment claim. Moreover, like this court, the New

Jersey Supreme Court requires a cumulative analysis of the

incidents comprising an alleged hostile work environment.

See Lehmann v. Toys `R' Us, Inc., 132 N.J. 587, 607, 626

17

A.2d 445, 455 (1993). Therefore, our discussion of the Title

VII claim above applies with equal force to this claim's basic

elements. We conclude that Cardenas has provided

sufficient evidence of an actionable hostile work

environment under the LAD to survive summary judgment.

Cardenas also claims retaliation as another basis for

liability. The District Court recognized that to establish a

prima facie retaliation claim under Title VII,S 1981, or the

LAD, Cardenas must show: (1) that he engaged in a

protected activity; (2) that he suffered an adverse

employment action; and (3) that there was a causal

connection between the protected activity and the adverse

employment action. Dec. 2 opinion at 38; see Robinson v.

City of Pittsburgh, 120 F.3d 1286, 1299 (3d Cir. 1997) (Title

VII); Delli Santi v. CNA Ins. Cos., 88 F.3d 192, 198 (3d Cir.

1996) (LAD); Khair v. Campbell Soup Co., 893 F. Supp. 316,

335 (D.N.J. 1995) (S 1981).

The District Court granted summary judgment for

defendants on Cardenas' retaliation claims, finding that

Cardenas had not shown that he engaged in a protected

activity or, assuming Cardenas suffered an adverse

employment action, any causal relationship between that

activity and the actions that were allegedly retaliatory. Dec.

2 op. at 39. We are satisfied that Cardenas has pointed to

evidence that he engaged in three protected activities

between June 1994 and January 1995 in the form of his

own discrimination complaint and his cooperation in the

complaints of two other individuals.

In Robinson, we stated that an adverse employment

action is one which is "serious and tangible enough to alter

an employee's compensation, terms, conditions, or

privileges of employment." See 120 F.3d at 1300. Cardenas

claims that his resignation was a constructive discharge,

which we will assume arguendo would constitute an

adverse employment action. "In order to establish a

constructive discharge, a plaintiff must show that the

employer knowingly permitted conditions of discrimination

in employment so intolerable that a reasonable person

subject to them would resign." Aman, 85 F.3d at 1084

(quotations omitted). A "continuous pattern of

discriminatory treatment over a period of years" may

18

constitute "intolerable" conditions even without a particular

egregious precipitating incident. Id. ("The fact that Aman

had been subject to continuous discrimination during her

employment could support a conclusion that she simply

had had enough. No other precipitating facts were legally

required.").

The District Court was willing to assume for purposes of

summary judgment that Cardenas suffered a constructive

discharge but found missing evidence of any causal link to

any of the alleged protected activity. As to the poor

performance evaluation, which Cardenas also cites here as

retaliatory, the District Court concluded that Cardenas

failed to show that the improper performance evaluation

was causally related to Cardenas' engaging in any protected

activity. Dec. 2 opinion at 40.

We are, of course, cognizant of our obligation to view the

record and submissions of the parties so that we may draw

all reasonable inferences in favor of the non-moving party.

As is evident from the foregoing, we have been able to find

enough evidence to show the existence of a genuine issue

of material fact as to the existence of a hostile work

environment. We have been unable to find any such issue

with respect to the required causal element in Cardenas'

retaliation claim. He contends that the evaluation that

rated the work he performed through August 1995 as

"marginal," the lowest he ever received, was not presented

to him until after the completion of the EEO report. There

have been cases in which the temporal relation between an

adverse employment action and the protected activity has

enabled the court to draw the inference of causal

relationship. See, e.g., Jalil v. Advel Corp., 873 F.2d 701,

708 (3d Cir. 1989) (inferring causation when discharge

occurred two days after employer's notice of plaintiff 's

EEOC complaint). However, "temporal proximity alone will

be insufficient to establish the necessary causal connection

when the temporal relationship is not `unusually

suggestive.' " Farrell v. Planters Lifesavers Co., 206 F.3d

271, 280 (3d Cir. 2000) (quoting Krouse v. American

Sterilizer Co., 126 F.3d 494, 503 (3d Cir. 1997)). The

temporal relationship in this case is, alone, insufficient to

establish causation, because the alleged protected activity

19

took place over a substantial period of time and any routine

employment action taken during that period would

necessarily be related temporally. In such circumstances,

there would have to be another basis to permit the

inference of a causal relationship.

Although we have held that many of the employment

actions to which Cardenas points as retaliatory were part of

the fabric of incidents from which a factfinder could

conclude made for a hostile work environment, it was

Massey's overt ethnic hostility that formed the thread

between the employment actions and the alleged hostile

environment. There is no similar basis to form a thread

between the same otherwise routine employment actions

and the protected activity. Our finding such a thread would

be sheer speculation. Under that circumstance, we will

affirm the judgment of the District Court granting

defendants summary judgment on Cardenas' retaliation

claim.

V.

Having determined that the District Court's dismissal of

Cardenas' claim for disparate pay on the basis of the

statute of limitations was erroneous as a matter of law and

that its grant of summary judgment for the defendants on

liability for a hostile workplace cannot be sustained, we

must decide which claim survives as to which defendant.

Inasmuch as Cardenas settled with Massey, the defendant

with the most direct culpability, we consider only the

claims against the other defendants.

The District Court, having dismissed the disparate pay

claims, never considered which defendants would be liable

if Cardenas were to prevail on the merits of that claim. Dec.

2 opinion at 17. We believe it appropriate for the District

Court to consider that issue in the first instance. We

therefore limit our consideration to the question of liability

on the hostile work environment claim. Of course, if

Cardenas does not prevail, there would be no reason to

consider relief as to any of the defendants. Nonetheless, we

proceed to consider whether there are other grounds to

affirm the District Court's dismissals as to each defendant

at this stage.

20

Cardenas seeks only equitable relief from Chief Justice

Poritz and Ciancia. He seeks an injunction requiring them

to implement specific anti-discrimination policies at the

AOC and alter his employment records retroactively to

reflect, contrary to fact, a higher pay-grade classification

and more favorable performance evaluations. In support of

his position, Cardenas cites authority for the proposition

that Title VII, S 1981, and the LAD all provide for equitable

relief, see 42 U.S.C. S 2000e-5(g)(1) (Title VII); Johnson v.

Railway Express Agency, Inc., 421 U.S. 454, 460 (1975)

(S 1981); Shaner v. Horizon Bancorp., 116 N.J. 433, 441,

561 A.2d 1130 (1989) (LAD), and contends that he"cannot

obtain the whole remedy that Title VII specifically promises

and that is implicit in S 1981 and the LAD" without the

equitable relief he seeks, Br. for Appellant at 62.

Because Cardenas is no longer employed by the AOC, he

will not be affected by its implementation of, or failure to

implement, new anti-discrimination policies. Therefore, a

change in AOC anti-discrimination policies will not make

him "whole" or remedy violations he contends the

defendants committed.9 Regarding Cardenas' novel request

for an injunction requiring the AOC to alter his

performance evaluations and pay-grade classification to

reflect not what they actually were but what they would

have been without discrimination, he has presented no

precedent, nor have we found one, granting equitable relief

which would require a public agency to complete its records

counterfactually. We therefore affirm the District Court's

grant of summary judgment to Ciancia and Poritz regarding

Cardenas' claim for equitable relief.

We consider next whether there is any basis on which

Cardenas could maintain his claims for a hostile work

environment against the state of New Jersey. The Supreme

Court recently reviewed the standard for Title VII employer

_________________________________________________________________

9. To the extent he seeks relief for perceived ongoing discrimination at

the AOC against current employees, he has presented no evidence of

such discrimination and cannot in any case assert the rights of the

employees. See O'Malley v. Brierley, 477 F.2d 785, 789 (3d Cir. 1973)

(citing "the principle that one cannot sue for the deprivation of

another's

civil rights") (quotations omitted).

21

liability in the context of sexual harassment and clarified

that agency principles apply. See Burlington Indus., Inc. v.

Ellerth, 524 U.S. 742 (1998); Faragher v. City of Boca

Raton, 524 U.S. 775 (1998). An employer is liable for acts

committed by its employees in the scope of their

employment, which may include some types of disparate

treatment of employees by supervisors, such as

discriminatory reprimands or job assignments. See

Faragher, 524 U.S. at 798-99. Pure harassment (e.g., ethnic

slurs) is not within the scope of employment and the Court

suggested that hostile work environment cases will most

often properly be analyzed under the rubric of either

employer negligence or vicarious liability. See id. at 802-07;

Ellerth, 524 U.S. at 757-59.

The Court held that employers are subject to vicarious

liability under Title VII for hostile work environments

created by supervisory employees. However, it also

enunciated an affirmative defense limiting this liability

when the plaintiff has not suffered a tangible adverse

employment action. The defense depends on the

reasonableness of both the employer's and the plaintiff 's

preventative and remedial measures. Specifically, the Court

held:

An employer is subject to vicarious liability to a

victimized employee for an actionable hostile

environment created by a supervisor with immediate

(or successively higher) authority over the employee.

When no tangible employment action is taken, a

defending employer may raise an affirmative defense to

liability or damages, subject to proof by a

preponderance of the evidence . . . . The defense

comprises two necessary elements: (a) that the

employer exercised reasonable care to prevent and

correct promptly any sexually harassing behavior, and

(b) that the plaintiff employee unreasonably failed to

take advantage of any preventive or corrective

opportunities provided by the employer or to avoid

harm otherwise. . . . No affirmative defense is available,

however, when the supervisor's harassment culminates

in a tangible employment action, such as discharge,

demotion, or undesirable reassignment.

22

Ellerth, 524 U.S. at 765; Faragher, 524 U.S. at 807-08.

In this case, the District Court held that although

Cardenas had made a prima facie case showing a hostile

work environment based on Massey's ethnically disparaging

comments, the undisputed evidence "shows that the

defendants took reasonable steps to prevent harassment in

the workplace, and the plaintiff failed to avail himself of the

AOC's complaint procedure until December, 1994." Dec. 2

opinion at 34. The court continued, "[o]nce the plaintiff did

file a complaint, the undisputed evidence shows that the

AOC took immediate, albeit temporary, remedial measures

while it conducted an investigation, and the harassment

stopped." Id.

Cardenas does not have to prove at this stage that New

Jersey is liable for a hostile work environment. Instead, he

need merely show that there is a genuine issue of material

fact that it may be held liable for employer liability. If

Cardenas does prove the existence of a hostile work

environment, New Jersey will be liable if (1) Cardenas

shows that Massey's overt harassment or Rebo's more

subtle approach led to a tangible employment action or (2)

one of the two bases for an Ellerth/Faragher affirmative

defense as to employer supervisory liability is not available.

Cardenas argues that his resignation from the AOC was in

fact a constructive discharge which would constitute a

tangible employment action and preclude New Jersey from

using the Ellerth/Faragher defense. 10 If Cardenas convinces

_________________________________________________________________

10. "A tangible employment action constitutes a significant change in

employment status, such as hiring, firing, failing to promote,

reassignment with significantly different responsibilities, or a decision

causing a significant change in benefits." Ellerth, 524 U.S. at 761. There

appears to be some disagreement on whether constructive discharge

constitutes a tangible employment action. Compare Caridad v. Metro

North Commuter R.R., 191 F.3d 283, 294 (2d Cir. 1999) (stating

"constructive discharge does not constitute a`tangible employment

action' as that term is used in Ellerth and Faragher.") with Durham Life

Ins. Co. v. Evans, 166 F.3d 139, 153 (3d Cir. 1999) (observing "[u]nder

[plaintiff]'s theory, any substantial adverse action . . . would not be a

tangible adverse employment action if it led the affected employee to quit

before the demotion took effect. This is contrary to Title VII doctrine,

which recognizes a constructive discharge under such circumstances.")

23

a jury that he was victimized by a hostile work environment

created by Massey or Rebo, it is certainly possible that the

same jury would find that the hostile environment was

severe enough to have precipitated Cardenas' resignation,

i.e., a constructive discharge. We have found that Cardenas

presented sufficient evidence to create a question of fact on

the existence of a hostile work environment. It follows that

he presented enough to survive summary judgment on the

constructive discharge issue, and hence New Jersey's

employer liability.

Even if the alleged hostile work environment had not

culminated in a tangible employment action, summary

judgment for New Jersey based on the Ellerth/Faragher

defense, which the District Court found dispositive, would

be premature. There are factual issues outstanding as to

the reasonableness of the parties' respective actions. As the

District Court pointed out, Cardenas did delay before filing

a formal EEO complaint and did refuse the alternative

positions the AOC offered him. On the other hand, he had

complained informally to Rebo, Massey, and Battle, the

EEO Officer, and Battle refused to address Cardenas'

concerns without a formal complaint. In these

circumstances, Cardenas' reluctance to file a formal

complaint for fear of aggravating the situation or branding

himself a troublemaker might not have been unreasonable.

Cardenas argues that the AOC's published anti-

discrimination policy and complaint procedure, on which

the District Court relied, was insufficient to satisfy

Ellerth/Faragher for a number of reasons. Cardenas asserts

that the investigators declined to re-interview him when he

insisted that his lawyer be present but instead adopted

Massey's explanation of the alleged ethnic slurs; the report

was issued seven months after he submitted his detailed

_________________________________________________________________

and Cherry v. Menard Inc., 101 F.Supp.2d 1160, 1171 (W.D. Iowa 2000)

("This court, however, does not agree with the decisions reached in

Caridad.").

We leave this issue to the District Court in the first instance. For

purposes of this discussion, we assume a constructive discharge is a

tangible employment action.

24

discrimination allegations (ten months after his initial,

formal complaint) and during that period he remained

under the supervision of Massey and Rebo, allegedly

subject to continuing discrimination; the AOC allegedly did

not respond to his e-mail asking for protection against

ongoing retaliation; the alternative positions offered to

Cardenas pending the investigation purportedly either left

him under the supervision of Rebo or Massey or effectively

demoted him by eliminating or significantly decreasing his

managerial duties, and his effort to find out more about,

and possibly accept, one of the positions was stonewalled;

and the internal investigation failed to address his

disparate pay claim and concluded that there was no

discrimination and therefore offered him no relief.

Inasmuch as we cannot rule out a genuine issue of material

fact with respect to whether the Ellerth/Faragher

affirmative defense would be available to New Jersey, we

cannot sustain the grant of summary judgment on the Title

VII claim as to New Jersey.

Similarly, New Jersey may be liable under its own LAD.

Under New Jersey's LAD, employers are liable under

traditional agency principles. See, e.g., Rudolph v. Adamar

of N.J., Inc., 2001 U.S. Dist. LEXIS 10902, *39 (D.N.J. July

31, 2001) ("Suits brought against the State as an employer

are clearly within the scope of the explicit waiver of

sovereign immunity contained in [the LAD]"); Newsome v.

Administrative Office of Courts, 103 F.Supp.2d 807, 821

(D.N.J. 2000) ("As with Title VII, under the LAD, traditional

agency principles govern the extent to which the[employer]

may be liable for compensatory damages for [a supervisor's]

actions. When a supervisor . . . , acting within the scope of

his employment, harasses an employee under his

supervision, the employer is vicariously liable.").

It remains to consider whether there is a basis also to

retain as defendants the two remaining named individuals,

Rebo and Lipscher. Although claims against individual

supervisors are not permitted under Title VII, see, e.g.,

Sheridan v. E.I. DuPont de Nemours and Co., 100 F.3d

1061, 1077-78 (3d Cir. 1996) (en banc), this court has

found individual liability under S 1981 "when [the

defendants] intentionally cause an infringement of rights

25

protected by Section 1981, regardless of whether the

[employer] may also be held liable." See Al-Khazraji v. Saint

Francis Coll., 784 F.2d 505, 518 (3d Cir. 1986); see also

Santiago v. City of Vineland, 107 F.Supp.2d 512, 540-41

(D.N.J. 2000). In Jett v. Dallas Indep. Sch. Dist., 491 U.S.

701 (1989), the Supreme Court held S 1983 provides the

" `exclusive federal damages remedy for the violation of the

rights guaranteed by S 1981 when the claim is pressed

against a state actor.' " Following Jett , Congress passed the

Civil Rights Act of 1991 which amended S 1981 to provide

that "rights protected by this section are protected against

impairment by nongovernmental discrimination and

impairment under color of State law." 42 U.S.C.

S 1981(c)(1994). As a district court has noted, "[f]ederal

courts have disagreed whether S 1981(c) abrogates Jett by

creating an implied independent cause of action." Meachum

v. Temple Univ., 42 F.Supp.2d 533, 541 n.9. (E.D. Pa.

1999); see also Jones v. School Dist., 198 F.3d 403, 414-15

(3d Cir. 1999); Santiago, 107 F.Supp.2d at 540 n.17 (D.N.J.

2000) (suggesting it is an open question in this circuit

whether S 1981 claims are available against state actors).

Under the LAD a supervisory employee may be liable for

discrimination for aiding and abetting another's (the

employer's) violation. See Hurley, 174 F.3d at 126; see also

Failla v. City of Passaic, 146 F.3d 149, 158 (3d Cir. 1998)

("[A] person is liable for harm resulting to a third person

from the conduct of another when he knows that the

other's conduct constitutes a breach of duty and gives

substantial assistance or encouragement to the other so to

conduct himself.") (quotation omitted). Moreover, a

supervisor has a duty under New Jersey law to act against

harassment, and a supervisor's violation of this duty by

either deliberate indifference or affirmative harassment

subjects the supervisor to LAD liability. Hurley , 174 F.3d at

128 (citing New Jersey cases); see also id. at 126 (failure to

act may qualify as aiding and abetting when it rises to the

level of "substantial assistance or encouragement.")

(quotation omitted).

We need not reach that issue as to Lipscher because the

only evidence implicating Lipscher in discriminatory

activities is his ultimate responsibility for the investigation

26

as the AOC Director. There is no evidence suggesting that

he was aware of, but ignored, Cardenas' cries for help or

defects in the investigation. There is no evidence that

Lipscher discriminated against Cardenas or was

deliberately indifferent to the discrimination he suffered.

The evidence indicates that Lipscher had little contact with

Cardenas and that he did not make the type of daily

managerial decisions Cardenas claims masked Massey's

and Rebo's discriminatory intent. There is no evidence that

Lipscher had any reason to believe Cardenas' direct

supervisors were breaching their duty not to discriminate.

Lipscher's acceptance of the investigator's report, which

Cardenas characterizes as a "whitewash" and which

excused Massey's derogatory comments (or purported to

explain why they were not derogatory), does not create a

genuine issue as to his discriminatory intent. Cardenas has

not presented any evidence that Lipscher had reason to

believe the report was inaccurate, incomplete, or in bad

faith. No reasonable jury could find that Lipscher aided or

abetted any discrimination against Cardenas. The evidence

shows that Lipscher took Cardenas' complaint seriously,

assigned an investigator to the case, and accepted the

investigator's report. We agree with the District Court that

a reasonable jury could not find any basis for liability as to

Lipscher, either individually or in his official capacity.

Retention of Rebo is, of course, a different matter. The

majority of the behavior which Cardenas found offensive

was perpetrated by either Rebo or Massey. Whether Rebo

was involved in, or deliberately indifferent to, many of the

allegedly discriminatory actions contributing to the claimed

hostile work environment is an issue of fact. For example,

Rebo was allegedly aware of some of Massey's comments

and conflicting directives to Cardenas but failed to prevent

them. He also controlled personnel assignments resulting in

disproportionate numbers of both minorities and trainees in

Cardenas' unit, and somehow the fact that Rebo had

selected Cardenas in part based on his ethnicity became

common knowledge in ISD. Moreover, Rebo failed to

recommend Cardenas' reclassification after assigning

Cardenas duties which he had previously used to help

justify a reclassification for another employee and after

Cardenas' successful negotiations with AT&T. Finally, Rebo

27

reviewed and approved Massey's allegedly disparate

performance reviews of his subordinates. A reasonable jury

could conclude from the available evidence that Rebo was

deliberately indifferent to, or participated in, Massey's

alleged harassment of Cardenas. There is sufficient basis to

raise a question of fact as to Rebo's liability on the basis of

intentional discrimination under the LAD and under

S 1981. We will, therefore, reverse the District Court's grant

of summary judgment to Rebo and remand for further

proceedings.11

VI.

To summarize, we will reverse the District Court's order

granting summary judgment for defendants on Cardenas'

disparate pay claims and remand for a determination on

the merits as to those claims; we will reverse the District

Court's grant of summary judgment to New Jersey on

Cardenas' claim of a hostile work environment under Title

VII and the LAD; we will reverse the District Court's grant

of summary judgment on behalf of Rebo on Cardenas' claim

of a hostile work environment under S 1981 and the LAD,

and in all other respects we will affirm the District Court's

grant of summary judgment.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

11. We have found it difficult to discern the bases of some of Cardenas'

claims. On remand, the District Court may use the procedures available

under the Federal Rules of Civil Procedure to require Cardenas to narrow

and clarify his remaining claims and their evidentiary bases.

28