Marrero v. Camden County Board of Social Services

Decision Date01 January 2001
Docket NumberCivil Action No. 00-3233 (JEI).
CourtU.S. District Court — District of New Jersey

PRESS & LONG, P.A. By: Richard L. Press, Esq. Northfield, NJ, Counsel for Plaintiff,

MARSHALL, DENNEHEY, WARNER, COLEMAN & GOGGIN By: Richard L. Goldstein, Esq. Cherry Hill, NJ, Counsel for Defendants Camden County Board of Social Services, Clement Carney, Robert Ellis and Sandra Mayers.


JOSEPH E. IRENAS, District Judge.

Presently before the Court is the summary judgment motion of Defendants Camden County Board of Social Services, Clement Carney, Robert Ellis and Sandra Mayers. Plaintiff Lizsandra Marrero, a former unit clerk in the income maintenance unit of the Board of Social Services ("the Board"), asserts several claims relating to the manner in which she was treated during her tenure with the Board and to the circumstances under which she was ultimately dismissed from her position. Plaintiff contends that she was unlawfully subjected to disciplinary action, and was later fired, because she exercised her constitutionally-protected rights to object to the conditions of her employment and that her dismissal violated the provisions of the Family and Medical Leave Act of 1993 ("FMLA"), 29 U.S.C. § 2601, et seq.. Plaintiff also asserts gender discrimination and retaliation claims under the New Jersey Law Against Discrimination ("LAD"), N.J.S.A. 10:5-1, et. seq., and claims for intentional infliction of emotional distress and interference with prospective economic advantage1. This Court has jurisdiction pursuant to 28 U.S.C. §§ 1331, 1367.

Because there remain issues of material fact relating to whether the actions taken against Plaintiff in response to conduct protected by the First Amendment and the LAD, and because Plaintiff has offered sufficient evidence to allow a trier of fact to conclude that the Defendants violated the notice and certification provisions of the FMLA by refusing to consider granting her a leave of absence, summary judgment on Plaintiff's FMLA and retaliation claims will be denied. However, because Plaintiff has not made the required showing that the actions taken against her would not have occurred "but for" her gender and because she has not demonstrated the necessary elements of her tort claims, summary judgment on those claims will be granted.


In 1978, the Camden County Board of Social Services adopted a formal dress code policy designed to create a "positive image" for the agency. This dress code remained in effect throughout Plaintiff's tenure with the Board, which began in November, 1992 and ended in July, 2000.

Plaintiff's "difficulties at the workplace" began in March, 1997, when she was first disciplined for failing to adhere to the Board's dress policy.2 (Am. Compl. at 2). Plaintiff testified at her deposition that she responded to this action by speaking with a union representative, who contacted Clement Carney, the Deputy Director of the Board of Social Services, on Plaintiff's behalf. (Pl. Dep. at 76). On September 9, 1997, that representative, Rosetta Pitts, directed a letter to Robert Ellis, the Board's Director, informing him that the union opposed the disciplinary action taken against Plaintiff. According to Plaintiff, this letter was the result of a "series of correspondence" between Pitts, Carney and Sandra Mayers, the Administrator of the Income Maintenance Unit. On September 16, 1997, Plaintiff was again sent home because of the way she was dressed. This action was followed by a letter from Mayers stating that should Plaintiff again run afoul of the dress code, more serious disciplinary action would follow.

Plaintiff alleges that things "escalated" after the 1997 incidents. (Am. Compl. at 2). In addition to the "numerous occasions" on which she was criticized for dressing inappropriately, Plaintiff claims that she was the subject of inappropriate and harassing comments such as "your panties are showing", "I can see the print of your privates" and "are you wearing your daughter's clothes" made by Defendants and others. (Am. Compl. at 3). In July of 1999, Plaintiff sent Defendants a Tort Claims Notice, pursuant to N.J.S.A. § 59:8-4, claiming that "several events occurring over the last two to three years... have created a hostile work environment which has continued to the present date." (Pl. Ex. PP). Plaintiff also claimed to have been subject to "retaliation" for reporting an incident of sexual assault that occurred between her and Defendant Junious Coles.3 (Id.).

Plaintiff claims that she was again sent home for violating the dress code on July 21, 1999, the same day that Defendants received and allegedly discussed Plaintiff's Tort Claims Notice. (Pl. Dep. at 206, 207).4 According to Plaintiff, things "got worse for me after I went to get advice from an attorney," in early 1999. (Pl. Dep. at 207). Plaintiff stated that during 1999 she was sent home from work more frequently and that the Board "had people watching over me", which "result[ed] in... being forced to leave work due to an anxiety reaction." (Pl. Stmt. of Mat. Facts at 18; Pl. Dep. at 207). This leave was ultimately designated as FMLA leave and lasted six weeks. Upon returning to work in September, 1999, rather than being reassigned to her old job as a unit clerk, Plaintiff became a "floater", a position which she contends was "less desirable." (Am. Compl. at 6). Plaintiff concedes, however, that this position was equivalent to her former job as a unit clerk in terms of responsibilities, salary and benefits and that she was restored to her unit clerk position within two months. (Pl. Dep. at 189).

On June 1, 2000, Plaintiff filed an action in the Superior Court of New Jersey, alleging, inter alia, sexual harassment, gender discrimination and retaliation in violation of the LAD and the First Amendment. (Defendants later removed the case to this Court.)

On June 26, 2000, Plaintiff was once again called to meet with Mayers and Carney to discuss alleged dress code violations. Plaintiff testified that she "got upset" by the demand, left the office and did not return to work that day. (Pl. Dep. at 187, 188).

The next day, Plaintiff called her supervisor, William Tucker and left a voice mail message stating that she had suffered an "anxiety attack" and would need to be placed out on leave. According to Plaintiff, she was at that time experiencing "nervousness, crying" and an inability to work "due to a hostile work environment." (Pl. Stmt. of Mat. Facts at 12). At the time of her call, Plaintiff had apparently already visited her physician, Dr. Arthur McDermott, who had recommended that she take a leave of absence. (Pl. Dep. at 169). Plaintiff then called the Board's personnel department, stated that she had been placed on a "sick leave" by her doctor and requested that the appropriate forms be sent to her. (Id. at 172). What happened next is a matter of some contention. Plaintiff states that Clement Carney got on the phone and "in a very loud tone of voice" told her that her leave was not accepted and "to get back to work or... be terminated." (Id.). Carney, however, insists that he simply advised Plaintiff of the proper procedure for requesting sick leave. (Carney Dep. at 36, 37).

In any case, Plaintiff did not report to work the following week. Plaintiff states that she did, however, immediately request a letter from Dr. McDermott stating the basis for his diagnosis. (Pl. Dep. at 173-174). On July 5, Plaintiff sent a letter to Director Ellis, along with state disability forms she had received from Dr. McDermott, stating that she was on sick leave and would like the completed disability forms returned to her. (Pl. Ex. V).

The forms, however, were never sent back. Instead, Carney sent her a letter, dated July 7, stating that if Plaintiff wanted to request sick leave, she needed to follow the procedures outlined in the Board's employee handbook and the union collective bargaining agreement. In the interim, the letter stated, she was considered on unauthorized leave and would be regarded, pursuant to N.J.A.C. 4A2-6.2(b), as having resigned not in good standing. Although Dr. McDermott ultimately did send a letter (dated July 18) to the Board confirming his diagnosis, Plaintiff was, after a disciplinary hearing before Defendant Ellis (which Plaintiff did not attend), fired on July 28, 2000.

Plaintiff moved, pursuant to Fed. R. Civ. P. 15(a), to add her FMLA claims to the Complaint and to incorporate the events of June and July into her existing discrimination and retaliation claims. This request was granted by the Court on October 20, 2000 and the Amended Complaint was filed on October 25. The instant Motion for Summary Judgment was filed on August 20, 2001.


"[S]ummary judgment is proper '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.'" Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986) (quoting Fed. R. Civ. P. 56(c)).

In deciding a motion for summary judgment, the Court must construe the facts and inferences in a light most favorable to the non-moving party. Pollock v. American Tel. & Tel. Long Lines, 794 F.2d 860, 864 (3d Cir. 1986). The role of the court is not "to weigh the evidence and determine the truth of the matter, but to determine whether there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986). However, "a party opposing a properly supported motion for summary judgment may not rest upon the mere allegations or denials of his pleading, but... must set forth specific facts showing that there is a genuine issue for trial." Id. at 248 (citation omitted).



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