Abramson v. William Paterson ( 2001 )

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Precedential or Non-Precedential: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
Ohio 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