Abramson v. William Paterson

Opinions of the United

2001 Decisions States Court of Appeals

for the Third Circuit

8-3-2001

Abramson v. William Paterson

Precedential or Non-Precedential:

Docket 00-5026

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Filed August 3, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 00-5026

GERTRUDE W. ABRAMSON,

Appellant

v.

WILLIAM PATERSON COLLEGE OF NEW JERSEY

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil No. 95-cv-04353)

District Judge: Honorable Katharine S. Hayden

Argued January 25, 2001

Before: NYGAARD, ALITO, and RENDELL, Circuit Judges,

(Filed: August 3, 2001)

Phyllis Gelman

Lindsay N. Feinberg [ARGUED]

Gelman & Feinberg

60 East 42nd Street, Suite 1060

New York, NY 10165

Counsel for Appellant

Gertrude W. Abramson

Nathan Lewin [ARGUED]

Miller, Cassidy, Larroca & Lewis

2555 M Street, NW, Suite 500

Washington, DC 20037

Counsel for Amicus-Appellant

National Jewish Commission

on Law and Public Affairs ("COLPA")

Bruce J. Solomon [ARGUED]

Office of Attorney General of

New Jersey

Division of Law

Richard J. Hughes Justice Complex

Trenton, NJ 08625

Counsel for Appellee

William Paterson College of

New Jersey

OPINION OF THE COURT

RENDELL, Circuit Judge.

Gertrude Abramson appeals the summary judgment

granted to her former employer, William Paterson College

("WPC"),1 against whom she filed hostile work environment,

religious discrimination, and unlawful retaliation claims

under Title VII and the New Jersey Law Against

Discrimination ("NJLAD"). Abramson, former tenure-track

Associate Professor in the Department of Curriculum &

Instruction ("C&I") of the School of Education at WPC,

claimed she was subjected to harassment and ultimately

terminated, both because of her Orthodox Jewish beliefs

and practices, and because she complained of WPC's

religious discrimination against her. The District Court

granted summary judgment in favor of WPC on all claims,

and Abramson now appeals. We conclude that Abramson

established a prima facie case for all three causes of action,

and that the District Court erred in the way that it

_________________________________________________________________

1. WPC, now the William Paterson University of New Jersey, is an

undergraduate and graduate educational institution, and is a state

college of New Jersey.

2

considered the evidence and applied certain legal principles.

We will therefore reverse the grant of summary judgment

and remand for further proceedings.

I.

A. Facts

Most of the underlying facts are undisputed. Where there

is a dispute, we view the facts in the light most favorable to

the plaintiff. Drinkwater v. Union Carbide Corp. , 904 F.2d

853, 854 n.1 (3d Cir. 1990). WPC hired Abramson, an

Orthodox Jew, for one year as a tenure-track Associate

Professor, effective September 1, 1990. Abramson has a

Doctor of Education degree in Communications, Computing

and Technology from Columbia University, and New York

State teacher certifications in elementary education and

early childhood education. In 1990, she had been teaching

for ten years at the college level, had published in peer-

reviewed academic publications, and had a national

reputation in education technology. At the time WPC hired

her until her termination, Abramson was the only Orthodox

Jew employed in the School of Education at WPC.

At the start of her first year at WPC, Abramson informed

her Department Chair, Jim Peer, that she would not be able

to teach on Jewish holidays. He suggested that she work

out her schedule with her students, which she did, and the

days she missed on account of Jewish holidays were not

counted as sick days. App. at 134-35.

The Review Process

As part of WPC's written policies and procedures

regarding retention and tenure, an untenured professor's

academic performance was to be reviewed on an annual

basis. New Jersey state law does not allow a state college to

offer tenure to a faculty member upon appointment, but

does permit it to offer tenure to a professor after two years

of employment upon a showing of extraordinary

circumstances. N.J. Stat. Ann. S 18A:60-9 (West 1993).

Barring exceptional circumstances, an untenured faculty

3

member must serve five years before being considered in

the fifth year for an award of tenure made effective in his

or her sixth year of employment. Id. atS 18A:60-8.

Retention and tenure decisions in Abramson's

department are first considered by the Curriculum and

Instruction Retention Committee ("the Committee"). The

criteria used to determine retention and tenure, as set forth

in WPC's written retention policy, are as follows: (1)

professional performance; (2) professional growth; and (3)

potential contributions to the academic department and the

University in terms of present and future programs. The

Department Chair is an ex-officio member of the

Committee. Though not a voting member, the Chair does

choose whether or not to sign the Committee's

recommendation. App. at 707. By not signing a

recommendation, the Chair indicates a lack of support for

the Committee's evaluation. App. at 708. The Dean then

makes a recommendation to the Provost. Finally, the

President of WPC makes a determination whether or not to

recommend retention (or tenure, where applicable) to the

Board of Trustees. The WPC Board of Trustees then decides

whether to retain and/or grant tenure based on the

recommendation of the President.

Abramson's First Two Years at WPC

Abramson's first "annual" review occurred shortly after

she began teaching at WPC, and on November 7, 1990, the

Committee "strongly" recommended the retention of

Abramson for the 1991-92 academic year. App. at 203. The

Committee applauded her teaching, scholarly achievement

and service, and noted Abramson's ability to teach many

C&I courses, opining that "[t]his flexibility makes her most

valuable for future planning." Id. It went on to say that the

C&I Department "has long been in need of just such

expertise as Professor Abramson brings . . . [WPC] stand[s]

to benefit from her work as a teacher and scholar." Id.

In the fall of 1991, during Abramson's second year at

WPC, Nancy Seminoff became the Dean of WPC's School of

Education, and in October 1991, she appointed Shelley

Wepner to chair the C&I Department. On October 29, 1991,

4

the Committee recommended the retention of Abramson for

the 1992-93 academic year, and Dean Seminoff concurred.

The Committee noted Abramson's significant service, top

teaching ratings by her peer evaluators, and exemplary

scholarship. It stated that "Professor Abramson exemplifies

WPC's direction for the future." App. at 207. Once again, it

strongly recommended her retention, and Wepner signed

the recommendation. President Speert then recommended

Abramson's reappointment to the Board of Trustees. App.

at 204.

Abramson's Third Year at WPC

During Abramson's third year, she began to experience

difficulties. First, Abramson was charged for sick days for

each day of work she missed due to Jewish holidays,

despite the fact that WPC was closed on several Christian

holidays. App. at 13, 135, 159. In June 1992, after

Abramson submitted routine forms in connection with a

professional conference she would be attending during that

summer, Seminoff required Abramson to meet with her to

account for the number of conferences and absences in the

prior year. Linda Dye, the head of the faculty union, stated

that this was "unprecedented" in a situation where a

professor's absences had not exceeded the standards set by

Human Resources. App. at 157-58.

In addition, Abramson was charged a day of sick leave for

a Jewish holiday on October 20, 1992, when she was not

even scheduled to teach. App. at 250, 677. After protesting

orally and in writing, this error was corrected six months

later. App. at 685. Then, in November 1992, during a C&I

Department meeting called to plan the 1993-94 class

schedules, Abramson stated her intention to schedule her

classes so that they did not conflict with the fall Jewish

holidays. According to Abramson, "Wepner started to

scream that she was tired of hearing about [Abramson] and

[her] holidays; when [Abramson] quietly tried to explain

[her]self, Chair Wepner yelled that [Abramson's] holidays

were . . . personal private issues and that she did not want

them mentioned at the scheduling meetings." App. at 137.

During the fall of 1992, at a Technology Committee

5

meeting chaired by Seminoff, Wepner suggested that

Abramson, along with others, come in on a Saturday to

prepare a technology room. Wepner, who is Jewish herself,

made this suggestion while fully aware that Abramson does

not work on Saturdays. Abramson told the group that she

could not attend because of the Jewish Sabbath. 2

Thereafter, Wepner continually questioned Abramson about

her lack of availability on Friday nights and Saturdays.

App. at 137-38.

On October 12, 1992, the Committee once again

recommended Abramson for retention for the 1993-94

school year. The evaluation highlighted the "dynamic"

nature of Abramson's discipline, described her as a"caring

educator" and "reflective teacher," noted she engaged in a

"wide range of scholarly activity" and was"active in several

national conferences in her field." App. at 225-28. This

time, however, the Committee's evaluation noted some

"minor concern about her teaching performance and her

contribution to department activities . . . ." App. at 231.

However, it also "recognized her numerous scholarly

pursuits and professional contributions" and recommended

her retention "in light of the department's present and

future needs for a technology educator." Id. Wepner signed

the recommendation. Seminoff, noting "an imbalance in

productivity" due to Abramson's focus on scholarly activity,

expressed that she had "serious concerns about Dr.

Abramson's reappointment," and recommended Abramson

"with some reservation." App. at 929-30.

On October 22, 1992, Abramson wrote a seven-page

letter to President Speert, stating that she took"strong

exception to the negative tenor and substance of the

recommendations made for [her] retention by[her]

department and Dean Seminoff." App. at 1253. She went on

to write, "I have lived as an Orthodox Jew all my life . . . .

The non-discrimination policy of William Paterson College

precludes the need to defend either religious observances or

pursuit of career goals." Id. Abramson attached the July 12,

_________________________________________________________________

2. In conformity with her religious beliefs, Abramson does not work, use

the telephone or drive a car from sundown on Friday until approximately

one hour after sundown on Saturday.

6

1992 letter she had sent to Seminoff in response to the

Dean's request for an explanation of her absences. App. at

1261. She received no response from Speert, and she has

asserted that his demeanor toward her changed

dramatically after that. Instead of being friendly as he was

previously, he "stopped speaking to [her] and would turn on

his heel and walk away from [her] if [they] happened to

meet on campus." App. at 140. On October 30, 1992,

President Speert informed Abramson that he intended to

recommend her for retention for a fourth year. App. at 931.

In a March 1993 meeting, Wepner scheduled an annual

C&I Department lunch for May on a Jewish holiday, even

after Abramson informed her she could not attend. App. at

137. On April 1, 1993, Wepner's secretary commented to

Abramson, in the presence of Wepner, that "other faculty

members are complaining about the way your religious

absences inconvenience them"; Wepner did not comment.

Id.

On April 27, 1993, Abramson sent a letter to Speert, the

Provost, her union representative, the Chair of the Faculty

Senate, and the entire Board of Trustees. App. at 939. She

attached the letter she had written to Seminoff after their

meeting on March 23, 1993, a meeting that Abramson said

was another event in a series of "continued and

unwarranted negativism toward [her]." App. at 940. The

attached letter refuted Seminoff 's suggestions and

criticisms regarding Abramson's teaching, leadership,

professionalism, and collegiality, and said it was written to

"counter the negative `facts' [Seminoff] continue[d] to

disseminate about [her]." App. at 939. The letter accused

Seminoff of having "ill-concealed hostility" toward

Abramson and of having a management style that "stifles

collegiality, deprives the departments and the college of

faculty creativity . . . and reduces innovative and effective

teaching." App. at 947. Abramson testified in her deposition

that this letter was sent to "challenge the judgment of the

Dean." App. at 1070.

On April 28, 1993, Provost Smith wrote a letter to

Abramson stating that it was highly unprofessional for her

to circulate such a letter so widely. App. at 1072-73.

Abramson, however, continued to circulate letters that were

7

harshly critical of Dean Seminoff. On June 7, 1993, she

wrote a letter to Seminoff attacking her for "applying an

administrative style that is autocratic and confrontational

and is based upon an outmoded, discredited, paternalistic,

approach to management." App. at 1076-77. Abramson's

letter added, "I have not seen any substantive evidence that

you are a constructive administrator." App. at 1077.

Abramson sent copies to Speert and Provost Smith.

On May 6, 1993, at a Technology Committee meeting,

Seminoff suggested holding a technology conference on a

Saturday. Abramson explained that she could not

participate due to the Sabbath. According to Abramson,

Seminoff screamed at her, saying that if Abramson would

not run a conference for her on Friday night and Saturday,

nothing Abramson did would have any value. App. at 137-

38, 157. And during the 1993-94 academic year, Wepner

suggested that faculty meetings be moved from Tuesdays,

the day when they had been held for many years, to Friday

afternoons, which would conflict with Abramson's

observance of the Sabbath. App. at 163-64.

Final Review for Retention

On September 20, 1993, five out of seven members of the

Committee voted to recommend Abramson's retention for a

fifth year, and for her early tenure. The Committee's report

stated the following:

Dr. Abramson is a skilled teacher and instructional

designer in the interactive classroom setting. . . .

Students also recognize Dr. Abramson's excellence as a

teacher/educator. . . . She encourages students to

listen, think, and communicate and to develop their

intellectual skills. . . . Dr. Abramson's working

relationships with faculty are flavored with respect. She

is genuinely considerate and thoughtful of others and

is willing to assist in any way possible. . . .[She] does

her share to further educational and professional

meetings. . . . She is a well rounded professional .. .

who represents the college admirably . . . . On campus,

Dr. Abramson has distinguished herself in a variety of

roles. . . . Not only is she a fine scholar, but she is a

valued colleague as well.

8

App. at 234-38. The Committee also noted that Abramson

had an outstanding publication and speaking record, and

served on many university committees. It stated that she

had "restructured and expanded the graduate

concentration in technology education . . . ." App. at 239.

It also discussed the future goals of the institution with

respect to her field of expertise, finding that she was in a

position to help WPC attain those goals. It stressed

Abramson's networking abilities and her status as a

"nationally recognized leader in her field," calling her "a

valuable resource and an asset to the College." Id.

The two other voting members of the committee, Aitken

and Coletta, were not present at the meeting. Wepner was

also absent. On September 23, 1993, Aitken, Coletta and

Wepner appended comments to the Committee's

recommendation. Aitken wrote that she had "reservations

regarding the [C]ommittee's recommendation," while Coletta

and Wepner noted that they did "not agree with the

Committee's recommendation." App. at 974.

Seminoff then wrote a memorandum to the Provost,

stating that she did not recommend Abramson's retention.

She cited concerns with three of the four applicable criteria

for retention and tenure -- teaching, research/scholarly

activity and service. App. at 975. Speert then undertook an

analysis of Abramson's retention folder.

On September 22, 1993, Abramson wrote a letter to

Robie Cagnina, WPC's Affirmative Action Officer, stating in

part: "This is the . . . third [year] in which religious

discrimination has been directed at me. I am being

subjected to bias, discriminatory treatment, harrassment

[sic], and outright hatred because I live as an Orthodox

Jew." App. at 311. At the bottom of the letter, Cagnina

wrote the following: "September 22, 1993 Met with Dr.

Abramson regarding this issue; discussed options for the

filing of a complaint. Choice was to file with the Division of

Civil Rights. RSC" Id.

On October 13, 1993, Wepner complained to Abramson,

during a lengthy attack on her professional contribution

during a graduate curriculum meeting: "[T]he trouble with

you is that it doesn't show that you are Orthodox." App. at

9

138. During the following week, Abramson sent a letter to

Speert, asking that, in light of Seminoff 's negative

recommendation, he read her retention materials carefully.

She wrote: "It appears that [Seminoff 's] bias against me as

an Orthodox Jew overwhelms her professional judgment."

App. at 377. On October 25, 1993, nearly two weeks later,

Speert wrote Abramson a letter informing her that he did

not intend to recommend her reappointment. App. at 977.

He later expressed the reasons for his decision in a

memorandum, sent to her on November 12, 1993. It

appears clear from the memorandum that his reasons

differed from Seminoff 's. In Speert's opinion, Abramson's

"potential contribution to her Department, Program and the

College . . . [did] not justify reappointment." App. at 979.

Abramson then went through an appeals process, but

Speert reached the same conclusion once again. In his

deposition, he explained his reasons for not retaining

Abramson. Speert said that the main reason was that the

retention folder presented to him contained evidence of her

inability to take leadership and guidance. App. at 1098. He

clarified that the referred-to evidence involved issues

related both to grants and to the accreditation visit by the

National Council on the Accreditation of Teachers of

Education ("NCATE").3 He also noted that Abramson had

failed to create a concentration in technology and refused to

work with administrators to create an Apple computer lab.

_________________________________________________________________

3. Speert testified in his deposition that Abramson dealt with a grant for

Merck and a program with the Stevens Institute of Technology in a way

that was "not consonant with college processes." App. at 1102. He stated

that "her view with respect to the [Merck] grant was limiting and did not

take into account either circumstances at the school level or college

level

or any level." App. at 1101. With respect to a proposed program with

Stevens, he said that "Dr. Abramson's response to the issue was

centered about individuals and not centered about the program, the

program gains with respect to the college and the college's cost benefit

analysis with respect to that program." App. at 1107. Regarding the

NCATE accreditation, Speert testified that he was referring to

Abramson's complaints about not being placed on the steering

committee, and her refusal to participate in the preparation for the

accreditation visit after being excluded from the steering committee. App.

at 1107-09.

10

Other Evidence Offered

Abramson also offered affidavits from several WPC faculty

members. The affidavit of Linda Dye, WPC professor and

president of the faculty union from 1993-94, supported

many of Abramson's allegations. She stated that Speert had

refused to say at Abramson's appeal meeting why she was

terminated, App. at 159, and also that the reasons given by

WPC could all be refuted, App. at 160-61. She declared the

following:

All but three or four faculty members in the School of

Education had difficulties with Dean Seminoff. Even

within that context, Dean Seminoff 's conduct toward

Professor Abramson stood out for its personal hostility.

In contrast to her treatment of other faculty members,

Dean Seminoff required Professor Abramson to justify

every one of her actions in each and every area of

Professor Abramson's work . . . . Dean Seminoff 's

criticisms of Professor Abramson's performance were

without basis . . . . Especially notable was her

insistence that Professor Abramson be excluded from

the committee preparing the School of Education for an

accreditation visit by a team from [NCATE], since

Professor Abramson had special expertise as she was a

member of NCATE . . . . Seminoff 's unfair criticism of

Professor Abramson's performance and her hostile

conduct toward Professor Abramson were motivated by

her disapproval of Professor Abramson's strict

adherence to Jewish religious laws . . . .

App. at 156-57.

The affidavit of Stanley Wollock, a tenured professor in

Abramson's department, noted that Friday afternoon

meetings were changed because "Wepner was aware that

Professor Abramson was unable to attend . . . because of

her observance of the Jewish Sabbath." App. at 163. He

also recounted that Wepner had stated that Abramson

"would not be fulfilling her duties" if she did not attend the

faculty meetings. App. at 164. In addition, he noted that

Dean Seminoff said "you people" to Abramson more than

once and treated her "much more harshly than she treated

other faculty members." Id. According to his observations,

11

he believed the Dean's dislike of Abramson was based on

her religion. App. at 165.

Doris White, a tenured professor in Abramson's

department who was a member of the Retention and

Tenure Committee in the Fall of 1993, stated, "Dean

Seminoff was prejudiced against Jews," assigning both

Abramson and another untenured Jewish faculty member

to work on many Friday nights, though White was never

asked to teach on a Friday night. App. at 168. She also

declared that faculty meetings were only scheduled on

Fridays while Abramson was in the C&I Department. Id.

Additionally, White stated that Abramson had more

technological expertise and had published more than the

rest of the faculty in the C&I Department. App. at 167.

Finally, Abramson submitted the declaration of her

former colleague, Cordelia Towney. Abramson and Towney

had both been on the faculty at a different college earlier in

their careers, and had worked on a book together while

Abramson worked at WPC. WPC had also employed Towney

for one semester. Towney stated that "[t]he religious

harassment which [Abramson] suffered at WPC made her

feel like a beaten puppy. She became sallow, stooped, [and]

she looked broken." App. at 174.

In addition to these declarations and her own affidavit,

Abramson submitted a Post-It note written by Wepner that

was contained in Abramson's file. App. at 445. The note

said, "If you are dealing with grad program teachers - work

all day -- Logical for any working class college to have

conferences on Sat[urday] - needs of institution conflict

with her practicing religion -- go. Conferences on Saturday

to deal." Id. Abramson also introduced into evidence

extremely positive student evaluations she had received

during the 1992-93 academic year, faculty evaluation forms

completed between April 1992 and May 1993 praising her

work,4 as well as ten letters written to Speert by students

and faculty members who strongly supported her retention.

App. at 183-85, 347-62, 380-93.

_________________________________________________________________

4. One peer review was much more critical of Abramson than the others;

this was written by Wepner.

12

B. Procedural History

On November 3, 1993, Abramson filed a complaint of

employment discrimination with both the Equal

Employment Opportunity Commission ("EEOC") and the

New Jersey Division on Civil Rights ("NJDCR"). App. at 141.

After filing a grievance with her union that was eventually

denied, Abramson filed a complaint of religious

discrimination and retaliation with the NJDCR and the

EEOC on September 2, 1994. After receiving a right to sue

letter from the EEOC, Abramson commenced this action in

the United States District Court for the District of New

Jersey on August 17, 1995.

The District Court delivered its summary judgment ruling

from the bench on December 10, 1999, disposing of the

issues raised in a lengthy oral opinion that was

interspersed with dialogue between the Court and counsel.

The Court entered its order on December 14, 1999,

granting summary judgment in favor of WPC on all claims.

In its oral opinion, the District Court briefly considered

Abramson's hostile work environment claim, rejecting it

because it found that Abramson did not present evidence

that would satisfy the prima facie case. The Court focused

primarily on Abramson's failure to make out the first

element of the prima facie case: intentional discrimination

on the basis of religion. In its view, there were too many

other explanations for Wepner's conduct, making the

religious animus explanation unreasonable. Dist. Ct. Op. at

78-79. Furthermore, it stated that the "same evidence

works for both" discrimination and hostile work

environment claims, and indicated it was considering

Abramson's inability to prove pretext in its analysis of her

hostile work environment claim. Id. at 77-78. Overall, it

found that "at best, [Abramson] raises a scintilla of

evidence." Id. at 83.

The vast majority of the District Court opinion addressed

Abramson's religious discrimination claim. The District

Court was unpersuaded by the evidence relied on by

Abramson to support her claim, though it did not refer at

all to the declarations submitted by Abramson's fellow

professors. It stated that because the Committee voted to

grant Abramson tenure, the focus of the inquiry should be

13

on whether President Speert failed to make a tenure

decision because of discriminatory animus. It found that

there was no evidence of such animus. Id. at 81-82. The

Court held that "at best [Abramson] raises a scintilla of

evidence in the overall inquiry, by virtue of what the record

reveals concerning the mind of Shelly Wepner." Id. at 83. In

addition, the Court found that Abramson had failed to

establish that WPC's reasons for terminating her were

pretextual. Id.

The District Court dismissed the comments made about

Abramson's religion as "stray remarks." Id. at 30. The Court

opined that there was a lack of evidence that people acted

negatively toward Abramson because of her religious

absences. Id. at 58-59. The Court expressed its belief that

Wepner was "hotheaded" and that her bad treatment of

Abramson was unrelated to religion. Id. at 59-60, 78.

The District Court then examined Wepner's statement to

Abramson ("The trouble with you is that it doesn't show

that you are Orthodox.") at length, acknowledging that it

sounded "angry" and "confrontative"[sic]. Id. at 52.

However, after reading Wepner's deposition, the Court

"gleaned from that a position that [Wepner] as a Jew has,

which is that she felt that her own religious practices were

down-played [sic] and low-keyed by her, as a matter of her

dealing with the issue of possible Antisemitism . . . ." Id. at

53. The District Court asked whether or not Wepner's

remark, "standing alone . . . establishes a religious bias,"

and found that "[t]here's just no way I find for someone to

hear Shelly Wepner's remark and draw any kind of an

inference that that per se remark is evidence of

discriminatory animus towards Abramson . . . ." Id. at 53-

55. Instead, it determined that it only showed a"clear

difference of opinion with respect to Abramson's open

acknowledgment and requests for acknowledgment of her

Orthodoxy . . . ." Id. at 55.

The District Court then addressed Wepner's Post-It as a

"stand-alone document to give us a vision of Shelly

Wepner's mind-set [sic] with respect to Abramson." Id. The

Court was persuaded that the note "establishes even more

strongly that Wepner moved from a difference of opinion

with plaintiff regarding the practice of her religion and

14

broadened that in her mind to a conclusion that . . .

Abramson was not . . . going to meet the needs of the

institution." Id. at 56. However, the Court found that

Abramson had failed to show the requisite nexus between

Wepner's Post-It and WPC's decision not to retain her

because it was "not contextually established where, when

and how this Post-[I]t played a role in anything other than

Wepner's own dossier regarding the plaintiff." Id. Although

the Court noted that it was possible that Wepner somehow

influenced Speert, it found that a possibility was

insufficient: "there has to be proof of a determinative factor,

i.e. factor of discrimination. Not the possibility." Id. at 57.

The District Court was similarly unconvinced that

Abramson's absence from Friday faculty meetings affected

her job performance, and it also rejected the argument that

the rescheduling of faculty meetings was done in an effort

to harass Abramson or to discriminate against her.

Furthermore, the Court did not believe that Seminoff 's

request that Abramson account for her absences was

related to religion. It ascribed her being charged with a sick

day on a Jewish holiday when she was not scheduled to

teach, and the six-month delay in correcting it, to

"administrative and bureaucratic bumbling." Id. at 69. The

Court stated that it was considering the record as a whole,

and in doing so, it found that Abramson did not disprove

the legitimate nondiscriminatory reason WPC gave for not

retaining Abramson. Id. at 83.

In rejecting Abramson's retaliation claim, the District

Court held Abramson did not give "a clear enough

indication that she was raising religious discrimination as

an issue." Id. at 76. The Court considered only Speert's

alleged change in demeanor when evaluating the adverse

employment action prong of the retaliatory inquiry, and

held that "whatever Speert did or didn't do with respect to

friendliness would call for rank speculation on the part of

the jury, if that jury was asked to say or to find that there

was retaliation." Id. The District Court did not consider

Abramson's ultimate termination as an adverse

employment action.

Abramson appeals, arguing that the District Court erred

in dismissing her Title VII and NJLAD religious

15

discrimination, hostile work environment, and retaliation

claims. She argues that she established a prima facie case

for each of her claims. First, she argues that she has

recounted sufficient proof of all elements of the prima facie

case required for a hostile work environment claim. With

respect to her religious discrimination claim, Abramson

stresses that she submitted ample evidence that her

supervisors were motivated by discriminatory animus

stemming from her insistence that she be allowed to

practice her Orthodox Jewish beliefs. She also argues that

she presented credible evidence that WPC's reasons for

terminating her were pretextual. With regard to her

retaliation claim, Abramson contends that the record

clearly reflects that she made her supervisors aware that

she was complaining of discrimination, and that her

termination was motivated by those complaints. We will

consider each of Abramson's claims in the order raised by

appellant, beginning with her hostile work environment

claim.

II.

The District Court had subject matter jurisdiction under

28 U.S.C. S 1331 and 28 U.S.C. S 1343, and supplemental

jurisdiction under 28 U.S.C. S 1367. We have appellate

jurisdiction over this appeal pursuant to 28 U.S.C.S 1291.

We exercise plenary review over the District Court's grant of

summary judgment to WPC, and we apply the same

standard that the District Court should have applied.

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir.

2000). A court should grant summary judgment "if the

pleadings, depositions, answers to interrogatories, and

admissions on file, together with the affidavits, if any, show

that there is no genuine issue as to any material fact and

that the moving party is entitled to a judgment as a matter

of law." Fed. R. Civ. P. 56(c). In evaluating the evidence, "a

court must view the facts in the light most favorable to the

nonmoving party and draw all inferences in that party's

favor." Farrell, 206 F.3d at 278. While the individual pieces

of evidence alone may not suffice to make out the claims

asserted, we must view the record as a whole picture.

Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir.

16

1997). As we stated in Andrews v. City of Philadelphia, 895

F.2d 1469, 1484 (3d Cir. 1990), "A play cannot be

understood on the basis of some of its scenes but only on

its entire performance, and similarly, a discrimination

analysis must concentrate not on individual incidents, but

on the overall scenario."

A. Hostile Work Environment

Abramson's first claim is that she was subjected to a

hostile work environment based on her religion. To make

out a prima facie case for a religiously hostile work

environment5 under Title VII, a plaintiff must demonstrate

five elements: "(1) the employee[ ] suffered intentional

discrimination because of [religion]; (2) the discrimination

was pervasive and regular;6 (3) the discrimination

_________________________________________________________________

5. We have yet to address a hostile work environment claim based on

religion. However, Title VII has been construed under our case law to

support claims of a hostile work environment with respect to other

categories (i.e., sex, race, national origin). We see no reason to treat

Abramson's hostile work environment claim any differently, given Title

VII's language. See 42 U.S.C. S 2000e-2(a)(1) (prohibiting employers from

discriminating against an individual because of"race, color, religion,

sex,

or national origin."). Therefore, we apply the well-established framework

for hostile work environment claims with respect to other protected

categories to our analysis of a hostile work environment claim made on

account of religion. We also note that there is at least one reported

decision from a court of appeals that has held that a claim for a hostile

work environment based on religion exists, and applied the same prima

facie case we use here. See Hafford v. Seidner , 183 F.3d 506, 514 (6th

Cir. 1999) (holding that plaintiff "did not demonstrate a triable issue

over

whether he was subjected to a hostile work environment based on

religion.").

We also note that a New Jersey court has also recognized that hostile

work environment claims based on religion are cognizable under the

NJLAD. See Heitzman v. Monmouth County, 728 A.2d 297, 303 (N.J.

Super. Ct. App. Div. 1999) (discussing plaintiff 's claim that he was

subjected to hostile work environment because he was Jewish and

noting that New Jersey courts have relied upon federal court decisions

construing Title VII hostile work environment claims when reviewing

such claims under NJLAD).

6. We note, as we did in Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106

n.2 (3d Cir. 1994), and Spain v. Gallegos, 26 F.3d 439, 449 n.14 (3d Cir.

17

detrimentally affected the plaintiff; (4) the discrimination

would detrimentally affect a reasonable person of the same

[religion] in that position; and (5) the existence of

respondeat superior liability." Kunin v. Sears Roebuck &

Co., 175 F.3d 289, 293 (3d Cir. 1999) (citing Andrews, 895

F.2d at 1482).

Under the NJLAD, a plaintiff states a claim for a

religiously hostile work environment by showing that the

"complained-of conduct (1) would not have occurred but for

the employee's [religion]; and it was (2) severe or pervasive

enough to make a (3) reasonable [Orthodox Jew] believe

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

working environment was hostile or abusive." Hurley v.

Atlantic City Police Dep't, 174 F.3d 95, 114 (3d Cir. 1999),

cert. denied, 528 U.S. 1074 (2000) (quoting Lehmann v.

Toys R Us, Inc., 626 A.2d 445, 453 (N.J. 1993)). 7

_________________________________________________________________

1994), that the Andrews formulation of this prong differs from the

Supreme Court's. In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993),

and most recently in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S.

75, 78 (1998), the Supreme Court articulated the standard for hostile

work environment claims. It required that the plaintiff demonstrate that

the harassment was "severe or pervasive." Id. On at least one previous

occasion, we have also referred to the standard as severe or pervasive.

See Walton v. Mental Health Ass'n of Southeastern Pa., 168 F.3d 661,

667 (3d Cir. 1999) (applying Title VII hostile work environment test to

ADA harassment claim and holding that plaintiff failed to "demonstrate[ ]

that the asserted harassment was pervasive or severe enough to meet

the Harris standard."). In the instant case, Abramson asserts a claim

that the discrimination was "pervasive and regular," thus fulfilling both

the Andrews and the Harris tests. Therefore, we adopt the approach

taken in Bouton. We note that the distinction between "severe or

pervasive" and "pervasive and regular" may be important, but "do not

find it necessary to resolve whether [the difference in language] was

inadvertent." Bouton, 29 F.3d at 106 n.2.

7. New Jersey courts have placed a less onerous burden on the plaintiff

by omitting the final prong of the analysis. Therefore, any plaintiff who

has fulfilled the Title VII prima facie case will have also shown the

elements required by the NJLAD. Because we find that Abramson has

fulfilled the Title VII prima facie case, we will not discuss the NJLAD

specifically, but note here that Abramson's claims under the NJLAD are

intact based on her showing under Title VII.

18

The District Court rejected Abramson's religiously hostile

work environment claims under both statutes, finding that

the conduct alleged did not meet the requirements of the

prima facie case. Dist. Ct. Op. at 78. Though it referred to

all of the first four prongs of the test, the Court seemed to

base its holding almost exclusively on Abramson's failure to

meet the first prong, viewing that prong as involving the

perception of a "reasonable person of the protected status"

and requiring a discriminatory "animus." We disagree with

this approach.

The proper inquiry at this stage was whether a

reasonable factfinder could view the evidence as showing

that Abramson's treatment was attributable to her religious

faith and practice. Further, by asking whether a reasonable

person would "necessarily construe" the conduct in

question as being improperly motivated, the District Court

appears to have viewed the evidence in the light most

favorable to the party making, not the party opposing, the

summary judgment motion. See Howley v. Town of

Stratford, 217 F.3d 141, 151 (2d Cir. 2000) ("It is not the

province of the court itself to decide what inferences should

be drawn.").

By requiring that Wepner's conduct be "linked" to a

"discriminatory animus," Dist. Ct. Op. at 79, and stating

that the record did not sufficiently "reveal[ ] [what was in

the] mind of Shelley Wepner," id. at 83, the District Court

seemingly required Abramson to introduce direct evidence

of Wepner's intentional discrimination against her based on

her religious beliefs. However, Supreme Court precedent

does not support the need for a plaintiff to demonstrate

direct evidence of her harasser's motivation for

discrimination against her. In Oncale, the Court discussed

a hostile work environment claim on the basis of sex, and

stated the following:

A trier of fact might reasonably find [sex]

discrimination, for example, if a female victim is

harassed in such sex-specific and derogatory terms by

another woman as to make it clear that the harasser is

motivated by general hostility to the presence of women

in the workplace. A same-sex harassment plaintiff may

also . . . offer direct comparative evidence about how

19

the alleged harasser treated members of both sexes in

a mixed-sex workplace.

523 U.S. at 80-81. Similarly, we have never required a

plaintiff to demonstrate direct proof that her harasser's

intent was to create a discriminatory environment. Instead,

we have held that, with respect to certain conduct, the

intent to discriminate can be inferred. Andrews , 895 F.2d

at 1482 n.3 (referring to sexual misconduct). We have also

noted that because discrimination is "often simply masked

in more subtle forms," it is often difficult to discern

discriminatory animus. Aman v. Cort Furniture Rental Corp.,

85 F.3d 1074, 1082 (3d Cir. 1996); see also Iadimarco v.

Runyon, 190 F.3d 151, 157 (3d Cir. 1999) ("The Supreme

Court has recognized that an employer who discriminates

will almost never announce a discriminatory animus or

provide employees or courts with direct evidence of

discriminatory intent."). Thus, we have held that even the

use of "code words" such as "all of you" and "one of them"

could be sufficient evidence from which a jury could find an

intent to discriminate. See Aman, 85 F.3d at 1083 ("The

words themselves are only relevant for what they reveal --

the intent of the speaker."); see also Howley , 217 F.3d at

145, 148, 154-55 (finding hostile work environment claim

on basis of sex viable where conduct at issue, though

lacking any sexual component or reference to plaintiff 's

sex, could, in context, reasonably be interpreted as having

been directed at plaintiff because of sex).

The first prong of the Andrews test was not designed to

protect harassers who fail to recognize the hostile or

abusive nature of their comments and actions. Our case

law does not indicate that the first prong requires a

factfinder to peer inside the harasser's mind. Rather, it

merely requires a showing that the offender's behavior was,

as required by both Title VII and the LAD, based on a

protected category. See Spain v. Gallegos, 26 F.3d 439,

447-48 (3d Cir. 1994) (noting that though facts before us

did not include evidence of "blatantly sexist behavior,"

plaintiff made out the first element "by showing that gender

was a substantial factor in the discrimination" and that

plaintiff would not have been treated in the same manner

if she were male) (internal quotation marks and citation

20

omitted); Drinkwater, 904 F.2d at 862 ("[E]vidence of a

sufficiently oppressive environment could, in theory, give

courts enough evidence to infer that the intentional

discrimination prong of the Andrews test can be met even

absent evidence of the harasser's subjective intent to

discriminate.")

Regardless of what a harasser's intention is, if a plaintiff

presents sufficient evidence to give rise to an inference of

discrimination by offering proof that her "workplace is

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," Harris v. Forklift Sys., Inc.,

510 U.S. 17, 21 (1993) (internal quotation marks and

citation omitted), and the conduct is based on one of the

categories protected under Title VII, a hostile work

environment claim will survive summary judgment. Here,

almost all of the incidents alleged centered around

Abramson's insistence that she not work during the

Sabbath. Therefore, we hold that where, as here, the

evidence tends to show that the harasser's conduct was

intentionally directed toward the plaintiff because of her

religion, the first prong of the prima facie case is met.

Turning to the remaining elements of the prima facie case

for hostile work environment, we find that the evidence

Abramson presented was sufficient to satisfy her burden on

the other prongs as well. We conclude that the many

incidents recounted by Abramson, coupled with the

declarations of other WPC professors, are relevant and

probative as to prongs two through four of the prima facie

case for hostile work environment claims.8 Though we will

_________________________________________________________________

8. We note that the parties disagree as to the District Court's treatment

of the declarations, and we found the record quite vague in this regard.

The District Court clearly did not allude to them in its oral opinion, but

did make a general statement during oral argument on the summary

judgment motion, offering the view that "some of the affidavits . . .

would

be truly inadmissible." Tr. of Oral Arg. at 100. It then stated that "we

might have [an] [in] limine battle about that . . . when we are dealing

with whether or not it is admissible." Id. at 101. Because we have not

been referred to a motion contesting their admissibility or an order

21

address each prong individually, first, we briefly note the

evidence that the District Court should have considered

when ruling on Abramson's hostile work environment claim:9

(1) Seminoff 's "unprecedented" monitoring of Abramson's

conferences and absences; (2) WPC charging Abramson

with a sick day on a Jewish holiday when she was not

scheduled to teach; (3) both Wepner and Seminoff, on

separate occasions, criticizing and raising their voices at

Abramson regarding her lack of availability during the

Sabbath; (4) Wepner scheduling meetings on Jewish

holidays and refusing to change them so Abramson could

attend; (5) Wepner's pointed statement to Abramson

regarding her faith and behavior ("The trouble with you is

that it doesn't show that you are Orthodox.").

First, a jury could find that the harassment was

pervasive. The events alleged occurred over a period of two

years and could be found to have infected Abramson's work

experience; even other faculty members mentioned it to

Speert prior to Abramson's filing suit. App. at 390-91, 513,

540-41. No one event alone stands out from the rest, but

all of the events could be found to aggregate to create an

environment hostile to a person of Abramson's religion. See

Durham Life Ins. Co. v. Evans, 166 F.3d 139, 155 (3d Cir.

1999) ("[I]t is settled law that courts should not consider

each incident of harassment in isolation. Rather, a court

must evaluate the sum total of abuse over time.") (internal

citation omitted). Taken as a whole, all the events alleged

indicate that the harassment rose to the level of

pervasiveness required to withstand summary judgment.

_________________________________________________________________

ruling them inadmissible, we assume for our purposes that they are to

be considered. However, we note that their admissibility is a matter for

the District Court to decide. See United States Sec. and Exchange

Comm'n v. Infinity Group Co., 212 F.3d 180, 198 (3d Cir. 2000)

(reviewing the exclusion of lay opinion testimony under Rule 701 for

abuse of discretion); United States v. Eufrasio , 935 F.2d 553, 571 (3d

Cir. 1991) (stating that admission under Rule 403 is reviewed under an

abuse of discretion standard).

9. This list is not exhaustive. There are additional examples in the

record.

22

A jury could also reasonably conclude that Abramson

was detrimentally affected by the environment, thereby

fulfilling the third prong. Abramson's declarations amply

support such a finding, as do the three affidavits of her

fellow WPC faculty members. In addition, the declaration of

Cordelia Towney stated that "[t]he religious harassment

which [Abramson] suffered at WPC made her feel like a

beaten puppy. She became sallow, stooped, [and] she

looked broken." App. at 174.

In determining whether the fourth prong, the objective

test, is met,10 we must "look[ ] at all the circumstances.

These may include the frequency of the discriminatory

conduct; its severity; whether it is physically threatening or

humiliating, or a mere offensive utterance; and whether it

unreasonably interferes with an employee's work

performance." Harris, 510 U.S. at 23. The Supreme Court

has stated that Title VII is not violated by the"mere

utterance of an . . . epithet which engenders offensive

feelings in an employee" or by mere "discourtesy or

rudeness," unless so severe or pervasive as to constitute an

objective change in the conditions of employment. Faragher

v. City of Boca Raton, 524 U.S. 775, 787 (1998) (internal

quotation marks and citations omitted). The conduct in the

instant case could be said to go beyond "simple teasing,

offhand comments, and [non-serious] isolated incidents,"

which the Supreme Court has cautioned would "not

amount to discriminatory changes in the terms and

conditions of employment." Id. at 788 (internal quotation

marks and citations omitted). We find that Abramson has

made a sufficient showing, based upon the facts set forth

above, that a jury could find that a reasonable person of

her religion would find the conduct alleged to be so harmful

that it altered her working conditions.

With respect to the fifth prong of the hostile work

environment claim, the existence of respondeat superior

_________________________________________________________________

10. We also note that the District Court analyzed whether a reasonable

Orthodox Jew would find the behavior to be religiously motivated, but in

assessing whether the fourth prong of the prima facie case is met, a

court must consider whether or not a person in the protected category

would be detrimentally affected by the conduct at issue.

23

liability, a jury could also find that this prong has been

met. The Supreme Court crafted the standard for employer

liability in Faragher, referred to as the"aided by the agency

relation test":

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 employee may raise an affirmative defense to

liability or damages . . . . No affirmative defense is

available, however, when the supervisor's harassment

culminates in a tangible employment action, such as

discharge . . . .

524 U.S. at 807. Here, it is undisputed that Abramson was

terminated. Hence, WPC cannot assert an affirmative

defense, and the evidence of liability is clear. Because

Abramson presented evidence sufficient to meet all five

elements of the prima case, we reverse the District Court's

grant of summary judgment on Abramson's hostile work

environment claim.11

B. Religious Discrimination Claim

Abramson claims that she was terminated because her

supervisors were motivated by discriminatory animus

stemming from her insistence that she be allowed to

observe her religious holy days. She alleges that WPC's

_________________________________________________________________

11. We also note that the Court erred by conflating two of Abramson's

legal claims, stating that the exact same evidence applied to both

Abramson's religious discrimination claim and her hostile work

environment claim: "[I]f I do not find that .. . the reason advanced were

[sic] pretextual plaintiff has a difficult time establishing hostile work

environment . . . the same evidence works for both." Dist. Ct. Op. at 77.

The two claims have entirely different prima facie cases and often courts

may consider evidence for one claim and not the other. For example,

here, even if WPC could demonstrate that it had a legitimate,

nondiscriminatory reason to terminate Abramson, she would still have a

hostile work environment claim if she could establish the five prongs of

the Andrews test, none of which are precluded by a failure to establish

disparate treatment.

24

various, allegedly non-discriminatory reasons for

terminating her employment were false and pretextual.

Title VII explicitly protects employees from adverse

employment actions on the basis of religion: "(a) It shall be

an unlawful employment practice for an employer--(1) to

fail or refuse to hire or to discharge any individual, or

otherwise to discriminate against any individual with

respect to his compensation, terms, conditions, or privileges

of employment, because of such individual's . . . religion

. . . ." 42 U.S.C. S 2000e-2(a). As recognized by our sister

circuits, though never explicitly recognized in our own

jurisprudence, employees may assert two theories of

religious discrimination:12 "disparate treatment," as alleged

here, and "failure to accommodate." E.g. , Chalmers v. Tulon

Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996);

Mann v. Frank, 7 F.3d 1365, 1368-70 (8th Cir. 1993).

Because the cases in our court dealing with religious

discrimination have routinely been of the "failure to

accommodate" variety, we utilize a prima facie case here

that differs from the one employed in our other religious

discrimination cases. See, e.g., Shelton v. Univ. of Med. &

Dentistry of N.J., 223 F.3d 220, 224 (3d Cir. 2000).

To prove a claim under the "disparate treatment" theory,

the prima facie case and evidentiary burdens of an

employee alleging religious discrimination mirror those of

an employee alleging race or sex discrimination. Chalmers,

101 F.3d at 1017. Accordingly, we apply the familiar

_________________________________________________________________

12. The reason for the two different types of claims is that although

Title

VII lists religion in the same list of protected categories as race and

sex,

the definition of "religion" in 42 U.S.C. 2000e(j) creates the "failure to

accommodate" theory by including "all aspects of religious observance

and practice, as well as belief, unless an employer demonstrates that he

is unable to reasonably accommodate an employee's . . . religious

observance or practice without undue hardship on the conduct of the

employer's business." The prima facie case, considered as part of the

same framework known as the McDonnell Douglas test, consists of three

elements: "(1) he or she has a bona fide religious belief that conflicts

with an employment requirement; (2) he or she informed the employer of

this belief; (3) he or she was disciplined for failure to comply with the

conflicting employment requirement." Protos v. Volkswagen of America,

Inc., 797 F.2d 129, 133 (3d Cir. 1986).

25

burden-shifting framework of McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 803-805 (1973). The plaintiff must

demonstrate that she (1) is a member of a protected class,

(2) was qualified and rejected for the position she sought,

and (3) nonmembers of the protected class were treated

more favorably. Goosby v. Johnson & Johnson Med., Inc.,

228 F.3d 313, 318-319 (3d Cir. 2000) (citing Ezold v. Wolf,

Block, Schorr & Solis-Cohen, 983 F.2d 509, 522 (3d Cir.

1992)). After the plaintiff establishes a prima facie case, the

employer must proffer a legitimate, non-discriminatory

reason for the adverse employment decision. Once the

employer does so, the plaintiff must demonstrate that the

proffered reason was pretextual. Goosby, 228 F.3d at 319;

see also Reeves v. Sanderson Plumbing Prods., Inc. , 530

U.S. 133, 143 (2000).

Abramson also asserts a claim of religious discrimination

under the NJLAD. In cases alleging disparate treatment,

New Jersey courts have adopted a three-step test that

mirrors the Title VII inquiry:

(1) the complainant must come forward with sufficient

evidence to constitute a prima facie case of

discrimination; (2) the employer must then show a

legitimate non-discriminatory reason for its decision;

and (3) the complainant must be given the opportunity

to show that the employer's stated reason was merely

a pretext or discriminatory in its application.

Chou v. Rutgers, the State Univ., 662 A.2d 986, 993 (N.J.

Super. Ct. App. Div. 1995) (citing Dixon v. Rutgers, the State

Univ. of N.J., 541 A.2d 1046, 1051 (N.J. 1988)). 13

Here, the District Court assumed, and the parties did not

dispute on appeal, that Abramson met all three

requirements of the prima facie case: (1) religion is a

protected category under Title VII and Abramson is an

Orthodox Jew, (2) she was qualified for the position; and (3)

she was terminated while other non-Orthodox Jewish

_________________________________________________________________

13. Under the NJLAD and Title VII, the analysis is essentially the same.

Therefore, we will limit our discussion to Title VII. In doing so, we note

that because Abramson's Title VII claim survives summary judgment,

her NJLAD claim does as well.

26

professors were retained. The burden then shifted to WPC

to proffer a legitimate, non-discriminatory reason for

Abramson's termination. Goosby, 228 F.3d at 319. WPC

offered many reasons for its decision. In fact, the reasons

presented were ever-changing.

Seminoff wrote that after reviewing Abramson's retention

file, she did not recommend Professor Abramson for

retention due to concern "regarding the quality of

accomplishment in [teaching, research, scholarly activity

and service], with particular concern for the area of

service." App. at 364. In Speert's memo to Abramson

explaining his decision not to recommend her for

reappointment, he wrote that her "overall record of

contribution to the College and Community and potential

contribution to the Department, Program and the College in

terms of present and future programs do not justify

reappointment." App. at 979. Later, in response to

Abramson's discrimination complaint to the NJDCR, WPC

claimed she was deficient in the following areas:

scholarship and teaching, interpersonal skills during small

group discussions, professional service on campus-wide

and department committees/activities, and her scholarly

record. App. at 404.

Finally, in Speert's deposition, he gave other reasons

never previously mentioned, among them that Abramson

failed to create a concentration in technology and refused to

work with administrators to create an Apple computer lab.

When pressed, Speert asserted that the main reason he did

not retain Abramson was that the folder that had been

presented to him contained evidence of her inability to take

leadership and guidance. App. at 1098. Upon further

inquiry, he said that this was based on Abramson's failure

to follow proper procedures in securing grants, and her

failure to be involved in the NCATE accreditation process.

App. at 1099-110. Because WPC's burden at this stage is

merely a burden of production, we agree with the District

Court that WPC met its burden at this stage. See Ezold,

983 F.2d at 523 (referring to defendant's burden as burden

of production).

The burden shifted to Abramson, who had to "point to

some evidence, direct or circumstantial, from which a

27

factfinder could reasonably either (1) disbelieve the

employer's articulated legitimate reasons; or (2) believe that

an invidious discriminatory reason was more likely than

not a motivating or determinative cause of the employer's

action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994).

In Fuentes, we addressed just how much evidence of

pretext a plaintiff needs to avert summary judgment. We

held that "to avoid summary judgment, the plaintiff 's

evidence rebutting the employer's proffered legitimate

reasons must allow a factfinder reasonably to infer that

each of the employer's proffered non-discriminatory reasons

was either a post hoc fabrication or otherwise did not

actually motivate the employment action (that is, the

proffered reason is a pretext)." Id. (internal citations and

emphasis omitted). Importantly, we qualified that statement

with the following footnote:

[The plaintiff need not] cast doubt on each proffered

reason in a vacuum. If the defendant proffers a bagful

of legitimate reasons, and the plaintiff manages to cast

substantial doubt on a fair number of them, the

plaintiff may not need to discredit the remainder. That

is because the factfinder's rejection of some of the

defendant's proffered reasons may impede the

employer's credibility seriously enough so that a

factfinder may rationally disbelieve the remaining

proffered reasons, even if no evidence undermining

those remaining rationales in particular is available.

Id., n.7. We then noted that it is not enough for a plaintiff

to show that the employer's decision was wrong or

mistaken, because the issue is whether the employer

acted with discriminatory animus. Hence, to make a

sufficient showing of pretext, Abramson must "demonstrate

such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions" in WPC's reasons that "a

reasonable factfinder could rationally find them `unworthy

of credence.' " Id. at 765 (citation omitted). And if Abramson

can successfully demonstrate pretext, she need not present

affirmative evidence of discrimination beyond her prima

facie showing if a rational factfinder could conclude from

the evidence of pretext that WPC's actions were

discriminatory. Reeves, 530 U.S. at 147.

28

WPC's reasons can be grouped into two categories: (1)

overall deficiencies in Abramson's scholarship, teaching

and service -- the explanations given to the NJDCR, which

are the same reasons Seminoff cited as the basis for not

recommending retention; and (2) Abramson's failure to get

along with supervisors and follow instructions, which were

the main (though not exclusive) reasons Speert listed at his

deposition.

Abramson refutes the first set of reasons by noting that

Speert admitted in his deposition that these reasons were

unfounded, saying that her folder gave evidence of"very

good performance in both areas" of teaching and

scholarship, App. at 468, and that her level of service

"would not have raised a concern," App. at 498. In addition,

WPC admitted at oral argument that these reasons were not

the actual basis for Abramson's termination. This

admission alone might suffice to satisfy Abramson's

burden, but we need not decide based solely on that

admission, because Abramson's evidence also refutes the

second set of reasons given later by Speert.

With respect to Abramson's alleged failure to follow

instructions insofar as she purportedly did not use proper

protocols for proposed grants and programs, she argues

that she was unaware of any protocols. App. at 147. She

points to Speert's inability to identify at his deposition

where the protocols were outlined in either the policy

manual or the faculty handbook. App. at 478-79. Abramson

presented testimony of the president of the faculty union

stating there were not any protocols, App. at 160, and

noted WPC's failure to include in the record any documents

setting forth such protocols.

Abramson also attacked the legitimacy of WPC's reliance

on the fact that she failed to accept leadership from

Seminoff and Wepner as grounds for her termination. She

argues that because these two women were her alleged

harassers, and because her poor relationship with them

was directly related to their hostility toward her religion,

her difficulty working with them should not be credited as

a legitimate, nondiscriminatory reason for her termination.

She also submitted evidence of her positive contributions in

teaching and scholarship (glowing teaching evaluations,

29

letters to Speert praising her, a fellow professor's

declaration), including evidence that she was well-versed in

the use of Apple computers and did in fact teach her

students how to use them. App. at 132, 174. With respect

to her alleged failure to develop the concentration in

technology, Abramson points to the specific reference by

the Committee to the contrary, presenting evidence that the

Committee praised her work in this area. App. at 239. In

addition, Abramson focuses on the timing of the reasons,

stressing that two technology-related concerns were not

mentioned until Speert's deposition.

Abramson also argues that the ever-changing nature of

the proffered reasons can be considered as detracting from

their legitimacy. We agree. If a plaintiff demonstrates that

the reasons given for her termination did not remain

consistent, beginning at the time they were proffered and

continuing throughout the proceedings, this may be viewed

as evidence tending to show pretext, though of course it

should be considered in light of the entire record. See

Fuentes, 32 F.3d at 765 (listing "inconsistencies" and

"contradictions" in employer's reasons among ways plaintiff

could show pretext); see also Waddell v. Small Tube Prods.,

Inc., 799 F.2d 69, 73 (3d Cir. 1986) (noting that district

court could "appropriately" have taken employer's

inconsistent explanations for termination into account in

finding causation necessary to satisfy prima facie case of

retaliatory discharge).

We find that based on the record as a whole, Abramson

has successfully "demonstrate[d] such weaknesses,

implausibilities, inconsistencies, incoherencies, or

contradictions" such that "a factfinder could reasonably . . .

disbelieve the employer's articulated legitimate reasons."

Fuentes, 32 F.3d at 765. And as the Supreme Court

recently stated in Reeves, this alone could support the

inference that WPC's motivation was discriminatory:

In appropriate circumstances, the trier of fact can

reasonably infer from the falsity of the explanation that

the employer is dissembling to cover up a

discriminatory purpose. Such an inference is

consistent with the general principle of evidence law

that the factfinder is entitled to consider a party's

30

dishonesty about a material fact as "affirmative

evidence of guilt." Moreover, once the employer's

justification has been eliminated, discrimination may

well be the most likely alternative explanation,

especially since the employer is in the best position to

put forth the actual reason for its decision. Thus, a

plaintiff 's prima facie case, combined with sufficient

evidence to find that the employer's asserted

justification is false, may permit the trier of fact to

conclude that the employer unlawfully discriminated.

530 U.S. at 147-48 (internal citations omitted).

However, the factfinder does not need to rely on that

evidence alone. Abramson has also presented evidence from

which a reasonable factfinder could infer that "an invidious

discriminatory reason was more likely than not a

motivating or determinative cause of [WPC]'s action."

Fuentes, 32 F.3d at 764. The confrontations with Seminoff

and Wepner, the very probative declarations of Abramson's

fellow professors, the laudatory faculty evaluations and

Committee report, and Wepner's Post-it note all provide

strong evidence to support Abramson's claim.

We note that the District Court appears to have viewed

the evidence as a factfinder,14 which contributed to the

ruling. In addition, the District Court seems to have viewed

each piece of independently, rather than in its entirety.15 "In

_________________________________________________________________

14. For example, with respect to Abramson being charged for a sick day

on a Jewish holiday when she was not scheduled to teach, and then

having to complain for six months to have the error rectified, the

District

Court "ascribe[d] that to administrative and bureaucratic bumbling."

Dist. Ct. Op. at 69. And when discussing Seminoff 's review of

Abramson's absences and attendance at conferences in July 1992, the

District Court concluded that such conduct was not motivated by

discriminatory animus, but rather, Seminoff 's"leadership and part of

doing the right thing as a manager." Id. at 63.

15. For instance, with respect to the Court's finding as to Wepner's

comment to Abramson that "The trouble with you is that it doesn't show

that you are Orthodox," the Court noted: "We are talking about whether

this standing alone, per se without any tortured reasoning one way or

another establishes a religious bias." Dist. Ct. Op. at 52-53 (emphasis

added); see also id. at 55 (stating with respect to Wepner's Post-It note:

"[T]his is offered as a stand-alone document to give us a vision of Shelly

Wepner's mind-set with respect to Abramson.").

31

determining the appropriateness of summary judgment, the

court should not consider the record solely in piecemeal

fashion, giving credence to innocent explanations for

individual strands of evidence, for a jury . . . would be

entitled to view the evidence as a whole." Howley v. Town

of Stratford, 217 F.3d 141, 151 (2d Cir. 2000). Accordingly,

viewing the evidence in the light most favorable to the

plaintiff, as is required when a defendant moves for

summary judgment, and viewing the record as a whole, we

conclude that Abramson's proof is sufficient to require that

this claim be permitted to proceed to trial.

We note, also, that while the District Court relied heavily

on the fact that it found no evidence in the record

demonstrating that Speert himself possessed discriminatory

animus toward Abramson, a rational jury could find that

Speert did not make his decision in a vacuum. A

reasonable inference that could be drawn from the record is

that Speert was influenced by both Seminoff and Wepner.

In fact, Speert even stated in his deposition that before

making his decision not to retain Abramson, he sought

Seminoff 's counsel. App. at 487. Moreover, there is an

additional piece of evidence not mentioned in the District

Court opinion that supports our view of the record on this

point. The record contains a memo sent on October 21,

1993, from Seminoff to Speert with a subject line that read:

"Request for information - Professor Gertrude Abramson,"

thus supporting the conclusion that Speert had sought

input on the decision to retain Abramson.16 App. at 378.

Under our case law, it is sufficient if those exhibiting

discriminatory animus influenced or participated in the

decision to terminate. See Abrams v. Lightolier Inc., 50 F.3d

1204, 1214 (3d Cir. 1995) (stating in ADEA case that if

plaintiff 's supervisor participated in decision to terminate

him, even though president of company formally terminated

him, evidence of supervisor's age-related animus would be

relevant in determining if discriminatory motive at play);

see also Russell v. McKinney Hosp. Venture, 235 F.3d 219,

_________________________________________________________________

16. In this memo, Seminoff explained certain aspects of Abramson's

retention file, including why Seminoff believed the committee vote was

split, and a recitation of what Wepner's concerns were. At the end of the

memo, Seminoff addresses "the allegation of religious bias." App. at 379.

32

226 (5th Cir. 2000) ("If the employee can demonstrate

that others had influence or leverage over the official

decisionmaker . . . it is proper to impute their

discriminatory attitudes to the formal decisionmaker.");

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d

46, 55 (1st Cir. 2000) (stating that "discriminatory

comments . . . made by . . . those in a position to influence

the decisionmaker" can be evidence of pretext); Griffin v.

Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir.

1998) ("[E]vidence of a subordinate's bias is relevant where

the ultimate decision maker is not insulated from the

subordinate's influence."). As we noted in Roebuck v. Drexel

University, 852 F.2d 715, 727 (3d Cir. 1988),"it is plainly

permissible for a jury to conclude that an evaluation at any

level, if based on discrimination, influenced the

decisionmaking process and thus allowed discrimination to

infect the ultimate decision." Clearly, Wepner and Seminoff

played a role in the ultimate decision to terminate

Abramson, and their involvement thus makes their conduct

toward her relevant and probative of discriminatory

animus.

Considering the record before us, we find ample evidence

to support Abramson's religious discrimination claim.

C. Retaliation Claim

Abramson's third and final claim is for retaliation. To

advance a prima facie case of retaliation under Title VII and

the NJLAD, a plaintiff must show that: (1) the employee

engaged in a protected employee activity;17 (2) the employer

took an adverse employment action after or

contemporaneous with the employee's protected activity;

and (3) a causal link exists between the employee's

protected activity and the employer's adverse action. See,

e.g., Farrell, 206 F.3d at 278; see also Krouse v. Am.

Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (describing

the third requirement as a "causal connection"); Craig v.

_________________________________________________________________

17. The actual language used by the New Jersey courts, with respect to

the first prong, is that an employee must show that he or she engaged

in protected activity known by the employer. Craig v. Suburban

Cablevision, Inc., 660 A.2d 505, 508 (N.J. 1995) (emphasis added).

33

Suburban Cablevision, Inc., 660 A.2d 505, 508 (N.J. 1995).

We conclude that there is ample evidence of all three

elements in the record, and disagree with the District

Court's determination that Abramson did not make out a

prima facie case.

1) Abramson engaged in protected activity.

On Oct. 22, 1992, Abramson wrote a letter to Speert,

stating:

I have lived as an Orthodox Jew all my life . . . . The

non-discrimination policy of William Paterson College

precludes the need to defend either religious

observances or pursuit of career goals. Nevertheless,

. . . it has been necessary for me to justify my lifestyle.

See, for example, the attached memo sent to Dean

Seminoff in response to her request for an explanation

of my "conferences/absences" when I submitted a pro-

forma travel request for an August conference.

App. at 932. On October 12, 1993, Abramson once again

wrote to Speert after Seminoff gave a negative

recommendation to the Committee regarding her future

employment with WPC. App. at 377. This letter complained

that "Dean Seminoff 's bias against [Abramson] as an

Orthodox Jew overwhelms her professional judgment." Id.

In addition to making her complaints known to President

Speert, Abramson also complained to WPC's Affirmative

Action Officer, Robie Cagnina. On September 22, 1993,

Abramson filed a written complaint of religious

discrimination with Cagnina, stating: "I am being subjected

to bias, discriminatory treatment, harrassment [sic], and

outright hatred because I live as an Orthodox Jew." App. at

311.

The District Court determined that Abramson failed to

make out the first element, holding that she "did not

articulate clearly and in a formal manner a religious

discrimination complaint . . . " and that her"[October]18

_________________________________________________________________

18. The District Court actually stated "April 1992" letter, but given that

no such letter exists in the record, and that during that same discussion

it had previously referred to the October 1992 letter, we assume the

District Court simply misspoke and intended to say October.

34

1992 letter [was not] a clear enough indication that she was

raising religious discrimination as an issue. She was

[adverting] to it, but she was not flat out saying it." Dist. Ct.

Op. at 75-76. Though we think that the October 1992 letter

was sufficiently clear to have alerted Speert that Abramson

felt she was being discriminated against,19 we need not rely

on that letter alone in order to find that Abramson fulfilled

the first prong.20 This is because not only did Cagnina

admit that she understood Abramson's September 22, 1993

letter to her to be an "informal" complaint of discrimination,

App. at 770, Speert also acknowledged that the October 12,

1993 letter from Abramson to him complaining of"bias"

toward her as an Orthodox Jew was quite clearly a

complaint of discrimination, App. at 515.

Under our precedent, the letters Abramson wrote to

Cagnina and Speert fall squarely within the requirements of

the first prong of a retaliation claim. We have previously

noted in the ADEA context that "we do not require a formal

letter of complaint to an employer or the EEOC as the only

acceptable indicia of the requisite `protected conduct' . . . ."

Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir.

1995) (citing Sumner v. United States Postal Serv., 899 F.2d

203, 209 (2d Cir. 1990) (explaining that acceptable forms of

protected activity under Title VII's analogous opposition

clause include formal charges of discrimination"as well as

informal protests of discriminatory employment practices,

including making complaints to management, writing

critical letters to customers, protesting against

discrimination by industry or society in general, and

expressing support of co-workers who have filed formal

_________________________________________________________________

19. Speert's statements in his deposition regarding this letter are

inconsistent. First, he notes that he called Wepner after receiving this

letter and asked her "about the references to challenge on the basis of

religion," which imply that he realized she was alleging unfair treatment

due to her religion. App. at 504. Yet, Speert also says that he did not

consider the letter to be a complaint of religious discrimination. App. at

507. However, Seminoff did acknowledge in her deposition that she was

aware that Abramson felt she was the victim of discrimination during the

1991-92 academic year. App. at 604.

20. It is unclear from the District Court opinion why it did not consider

any of Abramson's complaints besides the October 1992 letter.

35

charges")). Similarly, here, the complaints to WPC, whether

oral or written, formal or informal, are sufficient to satisfy

the first prong of the prima facie case, provided the

complaints expressed Abramson's opposition to a protected

activity under Title VII. Thus, we hold that the record

contains a sufficient showing that Abramson engaged in

protected activity.

2) Abramson suffered adverse employment action.

With respect to the second element -- i.e., adverse

employment action, the District Court only focused on

Abramson's claim that Speert treated her differently after

she voiced her complaints, rather than considering the

more obvious adverse employment action of her

termination. We hold that Abramson's termination clearly

fulfills the second prong of the prima facie case for a

retaliation claim. In addition, Seminoff 's recommendation

not to retain Abramson would also qualify as an adverse

employment action sufficient to meet this element.

3) A causal link exists between the protected activity

and the adverse action.

Given that the District Court viewed Speert's change in

demeanor as the only adverse action, it dismissed the issue

of causation out of hand, stating that it "would call for rank

speculation on the part of the jury" to ask it to find

retaliation. Dist. Ct. Op. at 76. But because the two

instances of adverse action we examine are Seminoff 's

recommendation not to retain Abramson and Abramson's

ultimate termination, the analysis changes significantly.

Based on our case law and the evidence adduced,

Abramson has made a sufficient showing of the causal

connection required by the third prong of the prima facie

case of retaliation. In Farrell, we recognized that our case

law has focused on two main factors in finding the causal

link necessary for retaliation: timing and evidence of

ongoing antagonism. 206 F.3d at 281; see also Woodson v.

Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 1997)

("[T]emporal proximity . . . is sufficient to establish the

causal link . . . . [A] plaintiff can [also] establish a link

36

between his or her protected behavior and subsequent

discharge if the employer engaged in a pattern of

antagonism in the intervening period."). Here, it could be

argued that the proximity in time between Abramson's last

letter to Speert on October 12, 1993, and her being

informed Speert would not recommend her for retention on

October 25, 1993, is not conclusive because her discharge

occurred in accordance with her annual review for

retention. However, the timing factor is made more

convincing by Cagnina's admission that she called Seminoff

after meeting with Abramson in September 1993 and told

her that Abramson had "apprised [her] that she believed

she had been discriminated against." App. at 770. Seminoff

wrote a very negative recommendation against Abramson

soon after that phone call from Cagnina.

In any event, we need not rely on timing alone because

Abramson has presented additional evidence to prove the

causal nexus. First, she has demonstrated ongoing

antagonism from her department head and the dean, as we

noted in our discussion of the facts above. Further, she

introduced other types of circumstantial evidence regarding

WPC's proffered reasons for terminating her, which we have

previously recognized as potentially probative of a causal

connection. Farrell, 206 F.3d at 284 ("[A] plaintiff may rely

upon a broad array of evidence to [illustrate a causal

link]."). For instance, we have noted that a plaintiff may

show that her employer gave inconsistent reasons for

terminating her. See Waddell, 799 F.2d at 73 (stating that

district court could "appropriately" have taken inconsistent

explanations into account in finding causation necessary to

satisfy prima facie case). Revealing discrepancies in the

proffered reasons can also constitute evidence of the causal

link. See Farrell, 206 F.3d at 285-86 (listing plaintiff 's

attacks on validity of reasons given). Here, as we found in

our discussion of the discrimination claim, Abramson has

succeeded in both casting doubt on the reasons WPC

proferred for her termination, and in demonstrating that

those reasons were vague and inconsistent. In light of this

evidence, coupled with the "ongoing antagonism" reflected

in the record, including Speert's change in demeanor after

Abramson complained of discrimination,21 we find that the

_________________________________________________________________

21. The District Court did not find this allegation persuasive, instead

crediting Speert's explanation that the reason he did not interact with

37

record contains ample proof of a causal connection.

Therefore, Abramson has presented sufficient evidence to

meet all three prongs of a prima facie retaliation claim so as

to withstand summary judgment, and we will reverse the

District Court's ruling on this claim.22

III. Conclusion

As we stated in Farrell,

We recognize that different inferences might be drawn

from the evidence presented in the record. On

summary judgment, however, when viewing the

sufficiency of the prima facie case, our role is not to act

as fact finder. Instead, we must consider the evidence

taken in the light most favorable to the non-movant

and determine whether [the plaintiff] can show the

causation required . . . .

206 F.3d at 286. Here, there is ample evidence from which

a reasonable jury could draw inferences establishing all

three of Abramson's claims. Accordingly, we will REVERSE

the District Court's order granting summary judgment in

favor of WPC on Abramson's claims of hostile work

environment, religious discrimination and retaliation, and

REMAND for further proceedings.

_________________________________________________________________

Abramson was because it was his practice to avoid having any contact

with anyone being considered for tenure. App. at 115. In doing so, the

District Court failed to consider the evidence in the light most favorable

to Abramson.

22. Needless to say, our opinion should not be interpreted as expressing

any view as to whether Abramson was in fact subjected to religious

discrimination or retaliation. We hold only that these questions cannot

properly be decided at summary judgment and must be submitted to the

trier of fact.

38

ALITO, Circuit Judge, concurring.

I write separately to add a brief explanation of my

understanding of the basis for holding that the summary

judgment record is sufficient to permit the plaintiff 's

religious harassment claim to go to trial. Harassment is

actionable under Title VII and the New Jersey Law Against

Discrimination only if it is so severe or pervasive that it

alters the terms or conditions of the plaintiff 's employment.

See Faragher v. City of Boca Raton, 524 U.S. 775, 786

(1998); Taylor v. Metzger, 706 A.2d 685, 688-89 (N.J.

1998). Offensive comments and actions that do not rise to

this level are insufficient. Id. This is an exacting standard,

and William Paterson College argues that the evidence in

this case does not meet it. The College relies on Heitzman

v. Monmouth County, 728 A.2d 297 (N.J. Super. Ct. App.

Div. 1999), in which certain anti-Semitic remarks were held

not to have altered the conditions of employment, and the

College maintains that "Abramson has not demonstrated

conduct beyond `the ordinary tribulations of the workplace'

which is so extreme as to amount to a change in the terms

and conditions of employment." Appellee's Br. at 40

(quoting Faragher, 524 U.S. at 788). The Court responds to

the College's argument by saying that "[t]he conduct in the

instant case could be said to go beyond `simple teasing,

offhand comments, and [non-serious] isolated incidents.' "

Maj. Op. at 23 (quoting Faragher, 524 U.S. at 788)

(brackets in majority opinion) (internal quotation marks

and citations omitted in majority opinion). I agree with the

Court's statement, but I think that it is necessary to

explain why the conduct alleged in this case "could be said

to go beyond . . . ."

The reason is that a reasonable trier of fact could infer

that officials of the College intentionally pressured the

plaintiff to violate the dictates of her faith in order to keep

her job. As the brief of an amicus curiae observes:

When an employer deliberately reschedules important

meetings for Friday afternoons, the message to an

Orthodox Jewish employee is clear as a bell. Such

rescheduling tells the employee that continued

observance of his or her faith will be viewed as

incompatible with adequate job performance. Repeated

39

requests that work be done on Saturdays or Jewish

holidays -- or telephone messages left on a Jewish

religious holiday demanding an `immediate' response --

are aimed directly at an employee's religious

observance. Criticism of an employee's effort to

reconcile his or her schedule with the observance of

Jewish holidays delivers the message that the religious

observer is not welcome at the place of employment. 1

Intentionally pressuring a person to choose between faith

and career is more "severe" and has a more direct effect on

the conditions of employment than the sort of offensive

remarks at issue in Heitzman. While case law provides only

limited protection for employees whose religious obligations

conflict with neutral job requirements, see Employment

Div., Dep't of Human Resources of Oregon v. Smith , 494 U.S.

872 (1990); Trans World Airlines, Inc. v. Hardison, 432 U.S.

63 (1977), Title VII does not permit an employer to

manipulate job requirements for the purpose of putting an

employee to the "cruel choice" between religion and

employment. Braunfeld v. Brown, 366 U.S. 599, 616 (1961)

(Stewart, J., dissenting). It is for this reason, in my view,

that the summary judgment record is sufficient to support

the plaintiff 's religious harassment claim.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

_________________________________________________________________

1. Brief for Amicus Curiae National Jewish Commission on Law and

Public Affairs, at 4.

40