Margaret Tourtellotte v. Eli Lilly & Co

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
_____________
No. 15-1090
_____________
MARGARET P. TOURTELLOTTE, KARLA KREIGER;
ASHLEY C. HISER; ANA V. REYES; JENNIFER A. KOVER
v.
ELI LILLY AND COMPANY; TIMOTHY ROWLAND
MARGARET P. TOURTELLOTTE; KARLA KREIGER;
ASHLEY C. HISER; ANNA V. REYES,
Appellants
_______________
On Appeal from the United States District Court
for the Eastern District of Pennsylvania
(D.C. Civil No. 2:09-cv-00774)
District Judge: Honorable Petrese B. Tucker
_______________
Submitted Pursuant to Third Circuit LAR 34.1(a)
December 7, 2015
Before: FUENTES, SHWARTZ and VAN ANTWERPEN, Circuit Judges.
(Opinion Filed: January 13, 2016)
______________
OPINION
____________

This disposition is not an opinion of the full Court and pursuant to I.O.P. 5.7
does not constitute binding precedent.
VAN ANTWERPEN, Circuit Judge.
Appellants Margaret P. Tourtellotte, Karla Krieger, and Ana Reyes appeal several
final decisions of the U.S. District Court for the Eastern District of Pennsylvania: an
April 16, 2013 decision granting in part Eli Lilly and Company’s (“Lilly”) renewed
motion for summary judgment as to claims by Ana Reyes, except her retaliation claim; an
April 16, 2013 decision granting Lilly’s renewed motion for summary judgment as to all
claims by Karla Krieger; an April 16, 2013 decision granting Lilly’s renewed motion for
summary judgment against all claims by Margaret Tourtellotte; an April 17, 2013
decision granting Timothy Rowland’s motion for summary judgment against Margaret
Tourtellotte and Karla Krieger; a January 29, 2014 order denying Reyes’s motion in
limine to admit evidence of Rowland’s conduct toward other employees, as well as the
District Court’s final judgment entered against Reyes on December 16, 2014 following
the jury trial on her retaliation claim. (App. 3a–9a). We will affirm the decisions of the
District Court.
I. Factual Background and Procedural History
A. Tourtellotte, Krieger, and Reyes’s Version of the Facts
Viewing the record from Appellants’ perspective, the facts in this case are as
follows. The three Appellants are former pharmaceutical sales representatives at Lilly.1
1
Tourtellotte worked at Lilly from March 2004 until her termination in January
2008. (App. 10a, 13a). Krieger worked at Lilly from May 2005 until her termination on
November 4, 2008. (Id. at 32a, 38a). Reyes worked at Lilly from June 2004 until her
termination on February 21, 2008 (Id. at 52a, 57a). Reyes was initially a treatment team
Appellants are all members of at least one federal or state protected class under Title VII,
the New Jersey Law Against Discrimination (“NJLAD”) and the Pennsylvania Human
Relations Act (“PHRA”): Appellant Tourtellotte is a Caucasian female, Appellant
Krieger is an African American female, and Appellant Reyes is a Hispanic female.
(Appellants’ Br. 5). In January 2007, Defendant Timothy Rowland became a District
Manager at Lilly and Appellants’ direct supervisor. (App. 11a, 33a, 53a). Tourtellotte and
Krieger’s first interaction with Rowland was at a sales team meeting that month, from
which Reyes was absent. (Appellants’ Br. 5). At the meeting, Rowland made a number of
comments Appellants cite as among the allegedly unlawful conduct giving rise to their
present claims. Rowland shared personal information about himself, such as that he had
not met an African American individual until he went to college and that he majored in
home economics because he wanted to be around women. (App. 11a, 33a). Rowland
commented on the appearance of the female employees and remarked about “all the
female Barbie dolls that are now in the pharmaceutical industry.” (Id. at 11a). During a
group activity, Rowland told Tourtellotte and another female employee, “let’s let the
pretty girls go first”. (Id. at 11a) (internal quotation marks omitted).
During a four-day regional meeting in Atlanta, Georgia for Appellants’ entire
division, Rowland engaged in conduct all Appellants cite as contributing to their present
claims. Tourtellotte states that Rowland again commented that the pharmaceutical
industry is all about the “Barbie dolls.” (Id. at 970a, 1245a–1247a, 1348a). In front of
specialist and became a senior sales representative when Lilly eliminated the specialist
position. (Id. at 52a).
other colleagues Rowland criticized Tourtellotte, but not her male co-workers. (Id. at
1838a, 1865a). Rowland mocked Reyes’s accent in front of their entire district, as well as
the accent of another Lilly employee of Spanish descent.2 (Id. at 1240a–1243a). During a
role-playing exercise, while assuming the part of a doctor speaking to a sales
representative, Rowland said “black people do not speak fast.” (Id. at 945a–946a).
B. Tourtellotte
Rowland became Tourtellotte’s supervisor upon her return from maternity leave in
January 2007. (Id. at 10a–11a). From the beginning, when the two interacted Rowland
commented on Tourtellotte’s appearance, saying that doctors must love seeing her and
referring to her as the “pretty redheaded Lilly rep.” (Id. at 1837a, 1838a). At their initial
one-on-one meeting, Rowland first suggested that Tourtellotte discuss her career and
commitment to her current position with her husband. (Id. at 1843a–1844a).
Two points of contention between Rowland and Tourtellotte were her
breastfeeding and childcare needs. At the regional meeting in Atlanta, Rowland did not
adhere to Lilly’s nursing policy. (Id. at 11a). At the same time, Rowland made a
comment about his wife’s body while discussing her nursing their son. (Id. at 1837a). At
a team meeting the following month, Rowland gestured to Tourtellotte and another
breastfeeding employee, stating that he and his wife “decided that one of [them] always
needs to be suckling on the breast of corporate America.” (Id. at 555a). Tourtellotte
reported Rowland to Lilly Human Resources (“HR”) Representatives Julia Dunlap and
2
Rowland also mocked Reyes’s accent at a meeting the next month. (App. 2018a).
Matt Morgan in March 2007 after Rowland criticized Tourtellotte for availing herself of
Lilly’s nursing policy and requesting days off to care for her sick child.3 (Id. at 12a,
691a). Tourtellotte again reported Rowland’s conduct to Morgan in May 2007 after
Rowland displayed hostility towards her at a field visit that month. (Id. at 12a, 1839a,
1847a–1849a).
From mid-May until mid-June 2007, Tourtellotte was granted medical leave for
extreme stress and anxiety. 4 (Id. at 13a). While on medical leave, Tourtellotte’s position
was filled. (Id.). Because her position was no longer available, Lilly placed Tourtellotte
on paid medical reassignment when she returned in September 2007. (Id.). The terms of
Tourtellotte’s medical reassignment gave her sixteen weeks of paid time, during which
her primary responsibility was to find, apply, and secure a new position within the
company. (Id. at 1890a). Tourtellotte did not apply for a single position during this time.
(Id. at 13a). Lilly terminated her employment in January 2008 for failure to apply for or
obtain a new position. (Id.).
C. Krieger
Krieger states that from the beginning Rowland treated her differently than non-
minority and male employees. (Id. at 951a). At their first encounter, Rowland told
3
Tourtellotte alleges that Rowland tried to deny her time off, which Lilly
ultimately approved in compliance with company policy. (Id. at 12a–13a).
4
Tourtellotte submitted a request, accompanied by a letter from her treating
physician, Dr. Waldron, to extend her leave until January 1, 2008. (Id. at 13a). Lilly
granted this request in part, and required Tourtellotte return to work on August 21, 2007.
(Id.). In its approval of this extension, Lilly indicated that any further requests would
likely be denied. Tourtellotte did request another extension of her leave, which Lilly
denied. (Id.).
Krieger that he loved women with blonde hair and blue eyes. (Id. at 33a). At their next
interaction, Rowland threatened to fire Krieger because of her “terrible” performance and
said “speak English to me” repeatedly in response to Krieger’s reaction to his statements.
(Id. at 931a–933a). Krieger believes Rowland’s comment referred to Ebonics.5 (Id. at
932a, 934a). At a meeting the next month, Rowland met with Krieger and her partner,
Peter Puleo, to address the fact that sales in their territory were at the bottom of the
district. At the meeting, Rowland did not to make eye contact with Krieger and cut her
off when she spoke. He also referred to an African American Lilly employee as the
“smartest black man I know” and discussed women’s breast sizes with Puleo. 6 (Id. at
34a, 940a–943a).
Krieger first reported Rowland to HR in March 2007 following the Atlanta
meeting, but alleges that HR never investigated or followed up on her complaint.7 (Id. at
5
A blend of ebony and phonics, Ebonics refers to “black English,” a nonstandard
variety of English and African languages. Dictionary: Ebonics, Merriam Webster,
http://www.merriam-webster.com/dictionary/ebonics (last visited Dec. 7, 2015); Ebonics,
Encyclopedia Britannica, http://www.britannica.com/topic/Ebonics (last visited Dec. 7,
2015).
6
In Krieger’s race and sex discrimination claims, discussed infra, she asserts that
Rowland treated Puleo and other males and non-minorities differently than her.
Krieger cites changes to federal law as causing the decline in sales. (Id. at 34a).
7
Krieger also reported Rowland’s interactions with another Lilly Sales
Representative, Denise Reese. Krieger observed Reese acting inappropriately with
Rowland at meetings. (App. 35a–36a).
Krieger alleges that HR did not investigate her complaint based on her views that
Rowland’s treatment and conduct toward her intensified after she complained. (Id. at
35a). Rowland asserts that Krieger only reported him to “undermine the validity” of a
reprimand he gave her for arriving late to a session at the Atlanta meeting. (Appellee
Rowland’s Br. 13 n.5).
35a). At meetings, Rowland kept his distance and ignored Krieger’s contributions. (Id. at
953a–954a, 2022a). When Krieger attempted to discuss transferring to another position at
Lilly, Rowland cut her off and advised that she discuss the issue of job performance with
her husband. (Id. at 962a–963a, 2023a–2024a). Krieger again relayed concerns about
Rowland to HR in June 2007. (Id. at 36a).8 The next month Rowland issued Krieger a
written warning based on her pattern of tardiness over the past year. (Id. at 36a).
Krieger’s tardiness was initially documented by her previous supervisor who issued
Krieger a verbal warning for the same offense. (Id. at 33a, 36a).
In July 2008, Lilly transferred Krieger to a new group supervised by Dan Gold,
who Krieger states is Rowland’s mentor.9 (Id. at 37a). The next month, Gold issued
Krieger a written warning for violating company policies regarding permissible expenses
on a business meal, as well as for tardiness and performance issues, including failure to
comply with field visit requirements.10 (Id. at 37a, 378a–382a). At some point in the fall
8
HR Rep. Mike Messina told Krieger that some of the statements she reported that
Rowland had made, if true, might be a violation of Lilly policy. (Id. at 36a). Messina
began an investigation into Rowland’s conduct after speaking to Krieger. (Id.).
Ultimately Messina concluded that Krieger’s allegations were unsubstantiated and that
there was “no evidence that [Rowland] violated Lilly’s ‘Conduct in the Workplace’
policy.” (Id.) (internal quotation marks omitted).
9
Gold incorrectly believed that Krieger was still on probation at the time of her
transfer, even though she had in fact completed her probation the previous month. (Id. at
37a). In September 2007, Krieger was first placed on probation while under Rowland’s
supervision for violating company policies by tampering with her computer’s clock to
make late reports appear on time. (Id.). Krieger completed the terms of probation in June
2008, and was told that she would not be eligible for another probationary period for
three years. (Id.).
10
Krieger admits committing these violations, but asserts that most of her
colleagues also failed to complete certain field visit requirement tasks and were not
of 2008, Krieger went on leave due to her husband’s health issues and hospitalization.
(Id. at 38a). Upon her return, Lilly terminated Krieger in November 2008 for poor
performance, including failing a test on her new products. (Id. at 38a).
D. Reyes
Reyes first met with Rowland upon her return from medical leave in January
2007.11 (Id. at 53a). During the meeting Rowland became extremely agitated and yelled
at Reyes for no ascertainable reason. (Id.). Following their initial meeting, Rowland told
Reyes a story about a poor Hispanic woman whom he once helped find a more
appropriate job. (Id. at 1188a, 1193a). After Rowland became very upset with Reyes
during a January 2007 field visit, Reyes made her first request for mentoring. (Id. at
1203a). During the next field visit, when Reyes made a renewed request for mentoring,
Rowland told her that mentoring would be futile because just as his son would never be a
famous basketball player, she would never be a good sales representative. (Id. at 1197a,
1202a–1203a).
When Reyes approached Rowland about a merit pay increase in February 2007,
Rowland told her that she would receive a one percent raise, which was commensurate
with what she deserved. (Id. at 1201a–1202a). Rowland expressed his goal of decreasing
team members and advised Reyes to look for other jobs within Lilly, such as one that
would utilize her language skills. (Id. at 1202a–1203a). Rowland also repeated the story
about the poor Hispanic woman. (Id. at 1202a). Reyes requested a mentor again during a
disciplined. (Id. at 38a).
11
The District Court opinion and briefs are silent as to the reason for this leave.
February 2007 field ride, since her male partner had received one. (Id. at 1237a).
Rowland again used the analogy of his son and basketball and suggested Reyes search for
another position at Lilly. (Id. at 1236a–1238a).
In March 2007, Reyes started seeking treatment from her primary care physician
for “anxiety and depression related to work and stress.” (Id. at 2002a). Reyes asserts that
Rowland’s interactions with her male colleagues were different than those with her.
Rowland once told Reyes that she could not attend a meeting with an important doctor
because it was a “guys [sic] meeting.” (Id. at 1265a–1266a). Rowland asked Reyes to
complete certain menial tasks that he did not require of her male partner, and which other
sales representatives were not required to do. (Id. at 1256a). Reyes made a complaint to
HR the next month on the basis that Rowland was discriminating against and harassing
her because she was a female of Hispanic descent. (Id. at 1160a; Appellants’ Br. 16).12
Reyes requested, and was granted, paid medical leave beginning in May 2007 due
to depression and anxiety. (Id. at 56a). Reyes submitted four subsequent requests to
extend her leave, which were approved, with a revised return date of December 2007. (Id.
at 56a). While on leave, Reyes requested that Lilly allow her to move into a position in
which she would no longer work with Rowland, as recommended by her doctor. (Id. at
2007a). Also while on leave, Reyes filed a charge of discrimination jointly with the
12
Reyes states that Rowland’s treatment worsened after she initially complained to
HR, which she reported to HR when they followed up with her during her medical leave.
(Id. at 1162a–1164a).
Pennsylvania Human Relations Commission (PHRC) and the Equal Employment
Opportunity Commission (EEOC).13 (Id. at 1998a–2001a).
After Reyes’s return to work in December 2007, Rowland and Reyes met one-on-
one in early January 2008 to discuss his expectations for their sales district. (Id. at 56a).
Reyes alleges that at this meeting Rowland told her he would be watching her very
closely because they would be seeing each other two to three times a week, as opposed to
once a month as in the past. (Id. at 1288a–1289a). Right after her meeting with Rowland,
Reyes was admitted to the hospital for bronchitis and asthma, and again went on
depression-related medical leave approved until mid-February. (Id. at 57a, 2017a). While
on leave, Reyes’s depression worsened and she told HR Representative Steve Washburn
she would only come back to work if she had a different supervisor. (Id. at 57a).
Washburn declined Reyes’s request. (Id.). Reyes was terminated effective February 18,
2008 for refusing to return to work. (Id. at 1220a–1221a, 1336a–1338a).
E. Procedural History
Tourtellotte initially brought suit against Lilly and Rowland in New Jersey state
court. (Appellee Rowland’s Br. 2). Lilly and Rowland removed to federal court. (Id.).
Tourtellotte voluntarily dismissed and refiled in Pennsylvania state court in Philadelphia
in December 2008, along with claims by Krieger, Reyes, Ashley Hiser, and Jennifer
13
The charge claimed that Reyes was subjected to a “hostile work environment”
based on her “sex, race, national origin and retaliation.” (Id. at 2000a–2001a). Reyes
received a right to sue letter indicating that the EEOC terminated processing her charge
and would not be pursuing it further on November 12, 2008. (Id. at 62a). Reyes never
sought to amend this charge or file another.
Kover.14 (Id.). Lilly and Rowland removed the case to federal court in the Eastern District
of Pennsylvania. (App. 76a). Lilly and Rowland initially filed motions for summary
judgment to which Appellants responded with requests for additional discovery pursuant
to Federal Rule of Civil Procedure (“Rule”) 56(f). (App. 80a–84a). The District Court,
(Fullam, J.P., J.), denied Lilly and Rowland’s motions without prejudice and allowed
Appellants to proceed with discovery. (Id. at 85a). At the close of discovery, Lilly and
Rowland both submitted renewed motions for summary judgment, which the District
Court, (Tucker, P., C.J.), granted for all claims against both Defendants, except for
Reyes’s retaliation claim against Lilly under Title VII, which proceeded to trial. (Id. at
6a–9a). A jury trial on Reyes’s retaliation claim ended with a verdict entered in favor of
Lilly on December 16, 2014. (Id. at 3a). This timely consolidated appeal followed. (Id. at
1a–2a).
II. Discussion15
A. Standard of Review
We exercise plenary review over a district court order granting summary
judgment. Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 643 (3d Cir.
1998). Accordingly, our review is identical to that performed by the District Court.
14
Kover withdrew all her claims in July 2009. (App. 78a). Hiser is listed as a
plaintiff on the notice of appeal that Appellants’ counsel filed, but she has since
withdrawn her appeal. (Appellants’ Br. 4; App. 1a, 99a). Neither the Appellants’ brief,
nor the record, is clear on when Hiser withdrew from the appeal.
15
The District Court had jurisdiction to hear Appellants’ federal claims pursuant
to 28 U.S.C § 1331. It had jurisdiction over Appellants’ state law claims pursuant to 28
U.S.C. § 1367(a). We have jurisdiction to review final orders of the district court
pursuant to 28 U.S.C. § 1291.
Anderson v. Consol. Rail Corp., 297 F.3d 242, 246 (3d Cir. 2002). We will affirm the
District Court’s grant of summary judgment if the moving party has shown that the
evidentiary material of the record, if reduced to admissible evidence, would be
insufficient to permit the nonmoving party to carry its burden of proof. Celotex Corp. v.
Catrett, 477 U.S. 317, 327 (1986). In reviewing the grant of summary judgment, we: “(i)
resolve conflicting evidence in favor of the nonmovant, (ii) do not engage in credibility
determinations, and (iii) draw all reasonable interferences in favor of the nonmovant.”
Simpson, 142 F.3d at 643 n.3 (quoting Fuentes v. Perskie, 32 F.3d 759, 762 n.1 (3d Cir.
1994)).
With regard Reyes’s challenge to evidentiary rulings at trial, this Court reviews
the admission or exclusion of evidence for abuse of discretion. Barker v. Deere & Co., 60
F.3d 158, 161 (3d Cir. 1995).
B. Analysis
Rule 56, which governs summary judgment, requires the nonmoving party to set
forth properly supported assertions and facts showing a genuine issue of material fact for
trial. Fed. R. Civ. P. 56(e)(3). If the nonmoving party rests solely on the mere allegations
of its pleadings, Rule 56(e) permits the court to “grant summary judgment if the motion
and supporting materials—including the facts considered undisputed—show that the
movant is entitled to it.” Id. at 56(e)(3). At the summary judgment stage, a court’s job is
not to act as the jury and weigh the evidence, make credibility determinations, or
“determine the truth of the matter but to determine whether there is a genuine issue for
trial.” Jiminez v. All Am. Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007) (quoting
Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249 (1986)) (internal quotation marks
omitted). If a court finds that the nonmoving party has not met its burden of
demonstrating a genuine issue of material fact for trial, the court must enter summary
judgment against it, even on issues a jury would decide if the claim survived summary
judgment.16 Fed. R. Civ. P. 56.
Appellants make a number of federal and state law claims under Title VII, the
NJLAD, and the PHRA, and the following are the claims raised on appeal.17 Tourtellotte
makes the following claims: breach of contract under state law, sex discrimination in
violation of the NJLAD, hostile work environment under the NJLAD, disability
discrimination on the basis of failure to accommodate in violation of the NJLAD, and
retaliation under the NJLAD for filing a complaint with human resources. Krieger makes
the following claims: breach of contract under state law, race discrimination under the
NJLAD, sex discrimination under Title VII and the NJLAD, sex-based hostile work
environment under the NJLAD, race-based hostile work environment under the NJLAD,
and retaliation under the NJLAD and Title VII for filing a complaint with human
16
Appellants contend that the District Court “usurped” the role of the jury by
determining that there was no causation or pretext since these are issues for the jury.
(Appellants’ Br. 34–35, 58–59). In support of this argument, Appellants cite cases from
this Circuit. (Id. at 34 –35) (citing Reilly v. City of Atl. City, 532 F.3d 216 (3d Cir. 2008);
McGreevy v. Stroup, 413 F.3d 359 (3d Cir. 2005); Fulmer v. Pennsylvania, No.
2:08cv1630, 2011 WL 915846 (W.D. Pa. Mar. 16, 2011), aff’d, 460 F. App’x 91 (3d Cir.
2012)). None of these cases stand for the proposition that a district court cannot enter
summary judgment on claims involving issues of causation and pretext, if the district
court finds, in accordance with Rule 56, that there is no genuine issue of material fact.
Appellants’ position goes against the purpose of summary judgment as a filter for claims
for which there is no need for a jury because there is no issue of fact to decide.
17
Other claims set forth in the complaint are not raised on appeal.
resources. Reyes makes the following claims: race discrimination under the PHRA, sex
discrimination under Title VII and the PHRA, hostile work environment under the
PHRA, and disability discrimination in violation of the PHRA, in addition to challenges
to two evidentiary rulings.
1. Tourtellotte and Krieger’s Breach of Contract Claims18
New Jersey law recognizes that an employee manual, such as a handbook, can
create an implied contract between the employer and employee. Wade v. Kessler Inst.,
798 A.2d 1251, 1258 (N.J. 2002) (citing Woolley v. Hoffman-La Roche, Inc., 491 A.2d
1257, 1258, modified on other grounds, 499 A.2d 515 (N.J. 1985) (mem.). However,
where the alleged discrimination would be in violation of the NJLAD, New Jersey law
does not recognize “a separate breach of contract cause of action on the basis of
generalized anti-discrimination language in an employee handbook.” Monaco v. Am.
Gen. Assurance Co., 359 F.3d 296, 308–09 (3d Cir. 2004).
Tourtellotte and Krieger bring breach of contract claims on the basis of anti-
discrimination language in Lilly’s Red Book, the company’s employee handbook.19
(App. 16a, 50a). These Appellants assert that the Red Book creates a binding contract
between employer and employees, on the basis of which employees can assert rights.
18
Reyes does not assert a breach of contract claim. (App. 52a).
19
Tourtellotte cites Lilly’s alleged failure to pay her childcare expenses covered
by the Nursing Mothers Program as another breach of contract based on the relevant
language in the Red Book. (App. 17a). The District Court found no breach since Lilly did
pay for Tourtellotte’s childcare once Tourtellotte submitted a corrected expense report,
which Tourtellotte does not dispute. (Id.).
(Appellants’ Br. 59–60). The District Court granted Lilly’s renewed motion for summary
judgment on these claims with respect to both Appellants. (App. 15a–17a, 50a–51a).
We agree with the District Court that the language these Appellants cite does not
create a binding contract that would give rise to a breach of contract claim, even
assuming arguendo that the NJLAD permitted this claim in addition to the discrimination
claim. Instead of providing the specific language that Tourtellotte and Krieger claim
creates a binding contract between Lilly and its employees, these Appellants incorporate
by reference twenty-eight pages of the Appendix which they assert “describes in full, the
facts regarding the Red Book, its specific policies, and binding effect on employees of
Lilly.” 20 (Appellants’ Br. 59). As the District Court correctly noted, “[n]owhere in the
language of the Red Book could one reasonably conclude that the provisions
[Tourtellotte] points to were intended to create a legally binding obligation beyond the
anti-discrimination laws already in place.” (App. 16a). The same reasoning accompanied
the District Court’s finding that no contract existed in response to Krieger’s claim. (Id. at
50a). The passages Tourtellotte and Krieger cite contain the same type of “generalized
anti-discrimination language” which this Court has held inadequate to create a contract.
20
Lilly asserts that because Tourtellotte and Krieger did not cite specific
provisions of the Red Book in support of their contract claims they have waived this
argument. (Appellee Lilly’s Br. 50). Lilly repeatedly advances waiver arguments
throughout its brief. While we agree that Appellants’ brief is often lacking in citations to
the record and authority, their arguments are not so inadequate that this Court will deem
these waived. Reynolds v. Wagner, 128 F.3d 166, 178 (3d Cir. 1997). Appellants’
arguments do not “consist[] of no more than a conclusory assertion . . . (without even a
citation to the record) . . . .” so accordingly we reach the merits. Id.; (Appellants’ Br. 59)
(citing App. 1960a–1988a).
Monaco, 359 F.3d at 309. Because the language to which Tourtellotte and Krieger point
for support is insufficient to create a cognizable contract, we will affirm the grant of
summary judgment against Tourtellotte and Krieger on their contract claims.
2. Race and Sex Discrimination Claims Under Title VII and the NJLAD
All retaliation and discrimination claims brought under Title VII and the NJLAD,
including those based on sex, race, and disability, which rely on circumstantial evidence,
are controlled by the three-step burden-shifting framework set forth in McDonnell
Douglas Corp. v. Green, 411 U.S. 792, 802–03 (1973); Moore v. City of Phila., 461 F.3d
331, 342 (3d Cir. 2006) (applying the McDonnell Douglas framework to a Title VII
retaliation claim); Atkinson v. LaFayette Coll., 460 F.3d 447, 454 & n.7 (3d Cir. 2006)
(applying the same framework to a Title VII gender discrimination claim); Williams v.
Phila. Hous. Auth. Police Dep't, 380 F.3d 751, 759 & n.3 (3d Cir. 2004) (applying the
McDonnell Douglas framework to ADA claims); Viscik v. Fowler Equip. Co., 800 A.2d
826, 833 (N.J. 2002) (adopting the McDonnell Douglas framework for NJLAD
employment discrimination cases). The McDonnell Douglas framework requires that the
plaintiff first establish a prima facie case of discrimination or retaliation. If the plaintiff
successfully meets the requirements of a prima facie case, the burden then shifts to the
employer to articulate a legitimate, nonretaliatory or nondiscriminatory reason for its
actions. If the employer produces such a reason, the burden then shifts back to the
plaintiff to prove that the employer’s nonretaliatory or nondiscriminatory explanation is
merely a pretext for the discrimination or retaliation. McDonnell Douglas Corp., 411
U.S. at 802–04; see Atkinson, 460 F.3d at 454. In the context of a challenge to a grant of
summary judgment, at the pretext stage of McDonnell Douglas the appellant “must point
to some evidence, direct or circumstantial, from which a 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.” Tomasso v. Boeing Co., 445 F.3d 702, 706 (3d Cir.
2006) (quoting Fuentes, 32 F.3d at 764) (internal quotation marks omitted). To
accomplish this, the appellant must “demonstrate such weaknesses, implausibilities,
inconsistencies, incoherencies, or contradictions in the employer’s proffered legitimate
reasons for its action that a reasonable factfinder could rationally find them unworthy of
credence, and hence infer that the employer did not act for [the asserted] non-
discriminatory reasons.” Id. (alteration in original) (quoting Fuentes, 32 F.3d at 765)
(internal quotation marks omitted).
This Court’s discrimination inquiry is the same for claims filed under Title VII
and the NJLAD as the New Jersey statute borrows the federal standard set forth in
McDonnell Douglas. See Armstrong v. Burdette Tomlin Mem’l Hosp., 438 F.3d 240, 249
(3d Cir. 2006). The elements of a prima facie case are the same for discrimination claims
on the basis of sex and race. See Peper v. Princeton Univ. Bd. of Trustees, 389 A.2d 465,
479 (N.J. 1978). To establish a prima facie case of race or sex discrimination under either
the federal or state statute, a plaintiff must first establish that: (1) she is a member of a
protected class; (2) she was qualified for the position in question; (3) she suffered an
adverse employment action; and (4) that adverse employment action gives rise to an
inference of unlawful discrimination. Jones v. Sch. Dist. of Phila., 198 F.3d 403, 410–11
(3d Cir. 1999); see Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 253 n.6 (1981)
(quoting McDonnell Douglas, 411 U.S. at 802). To constitute an adverse employment
action, the action must be “serious and tangible enough to alter an employee’s
compensation, terms, conditions, or privileges of employment.” Cardenas v. Massey, 269
F.3d 251, 263 (3d Cir. 2001) (quoting Robinson v. City of Pittsburgh, 120 F.3d 1286,
1301 (3d Cir. 1997)) (internal quotation marks omitted). To satisfy the elements of a
prima facie case, an adverse employment action must be material. Id.a. Tourtellotte’s Sex Discrimination Claim Under the NJLAD
Tourtellotte claims Lilly discriminated against her on the basis of sex in violation
of the NJLAD by ultimately terminating her employment. (App. 24a). Lilly counters that
Tourtellotte did not experience an adverse employment action as she has only presented
evidence of “trivial” incidents that do not give rise to a claim of sex discrimination under
the NJLAD. (Id. at 23a–24a). Specifically, Lilly cites Tourtellotte’s proffered incidents,
which include Rowland’s comments about breastfeeding, her appearance, her need to
consult with her husband regarding her schedule and career, and the comparably better
evaluations of her male partner, as merely actions that made Tourtellotte unhappy, but
did not alter the terms or conditions of her employment. (Id. at 24a–25a). The District
Court found that Tourtellotte “fail[ed] to make out a prima facie case of discrimination
because she fail[ed] to satisfy the ‘inference of discrimination’ element.” (Id.).
None of the evidence Tourtellotte presents demonstrates the discriminatory intent
necessary for an adverse employment action to satisfy the inference of discrimination
element of a prima facie case. Accepting Tourtellotte’s version of the facts as correct, and
resolving all disputes in her favor as the nonmovant, we agree with the District Court’s
determination that Tourtellotte’s termination does not satisfy this element. Consequently,
Tourtellotte has failed to establish a prima facie case of sex discrimination under the
NJLAD. Demonstrating an adverse employment action, here Tourtellotte’s termination, is
not sufficient to establish a prima facie case of sex discrimination. A prima facie case
also requires that the adverse employment action be done with discriminatory intent,
which is where Tourtellotte’s claim fails. See Cardenas, 269 F.3d at 263. Tourtellotte has
not demonstrated that Lilly intentionally put her on medical reassignment for the purpose
of terminating her employment. She has also not provided any evidence that once she
was on medical reassignment, Lilly’s actions gave rise to an inference of discrimination
on the basis of sex. Accordingly, we will affirm the District Court’s grant of summary
judgment against Tourtellotte on this claim.
b. Krieger’s Claims Under Title VII and the NJLAD
Krieger asserts discrimination claims under both Title VII and the NJLAD on the
basis of sex and race. Relying on a disparate treatment theory, Krieger points to the more
favorable treatment of her white male partner specifically, as well as the generally more
favorable treatment of all white males compared to females and racial minorities, as
evidence of circumstances that give rise to an inference of discrimination in light of her
ultimate termination. (Id. at 45a–46a). The District Court found that Krieger failed to
establish a prima facie case of discrimination because she did not prove that the adverse
employment actions gave rise to an inference of discrimination.21 (Id.).
Krieger cites largely the same evidence in support of the race and sex
discrimination claims she advances. Further, as discussed supra, the standards for both
race and sex discrimination are nearly identical for claims brought under Title VII and
NJLAD. Given the overlap in the facts and the application for both sex and race
discrimination under Title VII and the NJLAD, we present a single analysis for all of
Krieger’s race and sex discrimination claims. The McDonnell Douglas framework
outlined supra applies here because Krieger relies on circumstantial evidence to support
her claims. Anderson, 297 F.3d at 249; Grigoletti v. Ortho Pharm. Corp., 570 A.2d 903,
906–07 (N.J. 1990) (stating that New Jersey “adopted the Supreme Court's analysis of
unlawful discrimination claims brought under Title VII . . . [as] . . . presented in
[McDonnell Douglas]” and citing examples of New Jersey Supreme Court cases applying
this framework to LAD cases).
The District Court properly granted summary judgment for both the race and sex
discrimination claims because Krieger has not presented specific facts or identified
evidence, beyond her own bare assertions, that would support her disparate treatment
theory of discrimination. (App. 46a). Even viewing Krieger’s allegations in the most
21
Appellants state that the District Court granted Lilly's motion for summary
judgment on Krieger's race and sex discrimination claims due to Krieger's inability to
show pretext. (Appellants' Br. 33). The District Court ruled that Krieger failed to
establish a prima facie case for race and/or sex discrimination for the reasons described
infra. (App. 45a). As an alternate ground, the District Court ruled that even if Krieger
established a prima facie case, Lilly offered a legitimate, nondiscriminatory reason for
Krieger's termination and Krieger failed to established pretext. (Id. at 46a-48a).
favorable light, the evidence she presents does not give rise to an inference of
discrimination. Krieger is unable to point to evidence of Rowland’s alleged interactions
with others to support the disparate treatment theory and does not dispute the conduct for
which she was disciplined or contend that the person who terminated her discriminated
against her. (App. 46a). Therefore, we will affirm the District Court’s grant of summary
judgment against Krieger for this claim.
c. Reyes’s Race and Sex Discrimination Claims Under Title VII
and the PHRA22
Reyes brings discrimination claims on the basis of both race and sex under Title
VII, and the PHRA. 23 Like Tourtellotte and Krieger, Reyes relies on circumstantial
evidence to attempt to establish her prima facie case. As discussed supra, the McDonnell
Douglas burden-shifting framework applies to such claims under all three statutes. The
District Court found that as with Tourtellotte and Krieger, Reyes did not meet her burden
22
In their renewed motions for summary judgment, both Appellees argued that
Reyes failed to exhaust her administrative remedies with respect to these claims. (App.
60a). The District Court found that Reyes’s claims which post-dated the filed charge were
properly exhausted since “the parameters of the civil action in the district court are
defined by the scope of the EEOC investigation which can reasonably be expected to
grow out of the charge of discrimination, including new acts which occurred during the
pendency of proceedings before the Commission.” (Id.) (quoting Robinson v. Dalton, 107
F.3d 1018, 1025–26 (3d Cir. 1997)) (internal quotation marks omitted). We agree with
the District Court’s analysis and accordingly reach the merits of these claims.
23
This Court has stated that “[c]laims under the PHRA are interpreted
coextensively with Title VII claims.” Mandel v. M & Q Packaging Corp., 706 F.3d 157,
163 (3d Cir. 2013) (quoting Atkinson, 460 F.3d at 454 n.6) (internal quotation marks
omitted). Accordingly, we present a single analysis for claims brought under both
statutes.
in establishing a prima facie case of discrimination. 24 (App. 69a). As with the other
Appellants, the Court found that Reyes failed to establish a prima facie case because she
did not allege conduct that gave rise to an inference that her termination was
discriminatory. (Id.). It is undisputed that Reyes’s termination for failure to return to
work following her approved medical leave qualifies as an adverse employment action, in
satisfaction of that element of her prima facie case. (Id. at 68a). However, the evidence
Reyes presents in support of this claim does not relate to her termination. Rather, the
incidents to which Reyes points—which involve more favorable treatment of male
coworkers and disparaging remarks—seem to speak more to Reyes’s hostile work
environment claim. These incidents are not sufficiently linked to Reyes’s termination and
consequently fail to support the requisite discriminatory intent behind her termination.25
24
Again Appellant mischaracterizes the proceedings below, stating that “for
Reyes, the court found insufficient evidence that Defendant’s, legitimate, non-
discriminatory reason for termination was pretextual.” (Appellants’ Br. 33). The District
Court did not even address the legitimate, nondiscriminatory reason Lilly offered, let
alone reach the pretext stage.
25
Reyes, as well as her co-Appellants, asserts that Lilly’s failure to appropriately
investigate her complaint, provides the necessary causal link. For all three Appellants,
Lilly’s allegedly insufficient investigation does not establish the relation between the
alleged discrimination and the adverse employment actions. While this Court has
recognized that if an employer fails to investigate and remediate unlawful conduct they
are liable for any resulting discrimination, this requires a determination of actual
discrimination, which is not present in this consolidated case. See, e.g., Bouton v. BMW
of N. Am., Inc., 29 F.3d 103, 107 (3d Cir. 1994). This Court has also stated that a
deficient investigation can constitute an adverse employment action under Title VII if it
“effect[s] a material change in the terms or conditions of [a person’s] employment.”
Weston v. Pennsylvania, 251 F.3d 420, 431 (3d Cir. 2001), overruled in part on other
grounds by Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53 (2006). Neither
situation is present here as Lilly did actually investigate Appellants’ claims. (App. 36a).
Appellants have not demonstrated how these investigations were so deficient as to
Reyes also bases the discrimination claims on her February 2007 merit pay increase.
Based on this Court’s definition of adverse employment action, we agree with the District
Court that receipt of a less than expected merit increase does not constitute a material
change in the terms or conditions of employment, and is subsequently not an adverse
employment action.26 (App. 70a). For these reasons, we will affirm the District Court’s
grant of summary judgment against Reyes on her race and sex discrimination claims.
3. Hostile Work Environment Claims Under Title VII and the NJLAD
Title VII prohibits sexual harassment 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) (quoting Meritor Sav.
Bank, FSB v. Vinson, 477 U.S. 57, 67 (1986)). This type of sexual harassment claim is
referred to as a hostile work environment claim. Id. at 18–19. A plaintiff must establish
four elements to succeed on a hostile work environment claim: “(1) the employee
suffered intentional discrimination because of their sex; (2) the discrimination was
pervasive and regular; (3) the discrimination detrimentally affected the plaintiff; [and] (4)
constitute an adverse employment action and the underlying claims are not discrimination
in violation of the applicable laws.
26
Recognizing the claim specific nature of a prima facie case, the District Court
noted that in the retaliation context, as opposed to with a discrimination claim, receipt of
a less than expected merit increase could rise to the level of an adverse employment
action. (App. 69a–70a) (citing Keeley v. Small, 391 F. Supp. 2d 30, 48 (D.D.C. 2005)).
An additional defect in Reyes’s attempt to link Rowland’s allegedly
discriminatory conduct to her February 2007 merit pay increase is his lack of
involvement in determining the amount she received. Reyes does not dispute Lilly’s
recitation of the facts stating that the pay increase was based on a performance review
conducted by Reyes’s former supervisor and ultimately decided by the regional manager.
(App. 70a).
the discrimination would detrimentally affect a reasonable person of the same sex in that
position.” Huston v. Procter & Gamble Paper Prods. Corp., 568 F.3d 100, 104 (3d Cir.
2009) (quoting Weston v. Pennsylvania, 251 F.3d 420, 426 (3d Cir. 2001)). To hold an
employer liable, the plaintiff must also establish a fifth element, respondeat superior. Id.In the years since the United States Supreme Court set forth the “severe or
pervasive” standard in Meritor Savings Bank, FSB v. Vinson, the Court has further
articulated that this is an objective standard, based on “an environment that a reasonable
person would find hostile or abusive.” Harris, 510 U.S. at 21. To determine if the alleged
harassment is so hostile or abusive to rise to the level of an unlawful hostile environment,
the Supreme Court directs courts to “look[] at all the circumstances,” including the
frequency of the alleged conduct. Id. at 23; Andrews v. City of Phila., 895 F.2d 1469,
1482 (3d Cir. 1990) (quoting Vance v. S. Bell Tel. and Tel. Co., 863 F.2d 1503, 1510
(11th Cir. 1989)) (stating that “a plaintiff must establish by the totality of the
circumstances, the existence of a hostile or abusive working environment which is severe
enough to affect the psychological stability of a minority employee”). Supreme Court
hostile work environment jurisprudence states that the “sufficiently demanding”
“standards for judging hostility” “ensure that Title VII does not become a ‘general
civility code.’” Faragher v. City of Boca Raton, 524 U.S. 775, 788 (1998) (quoting
Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 75, 80–81(1998)).
All three Appellants assert hostile work environment claims, Tourtellotte on the
basis of sex under the NJLAD, Krieger on the bases of sex and race under the NJLAD,
and Reyes on the bases of sex and race under the PHRA. (App. 29a, 41a, 64a). Because
all three Appellants rely on nearly identical facts, including references to the allegedly
discriminatory conduct experienced by their co-Appellants and the standards for
assessing the claims are nearly identical for the state and federal statutes, as well as for
race and sex, we present our assessment of their three claims in a single analysis. The
District Court found that none of the Appellants established a prima facie case of a
hostile work environment, and accordingly granted summary judgment against them.
Appellants contend that the District Court erred in finding the alleged conduct neither
“severe” nor “pervasive” (Appellants’ Br. 44–47). First, they contend that the District
Court applied a heightened standard requiring “severe and pervasive” conduct for
Tourtellotte and Krieger claims even though the NJLAD uses a more relaxed standard
than Title VII. (Id. at 42–46). Specifically, Appellants aver that the District Court relied
too heavily on the frequency of the alleged conduct, which they agree is a factor, but not
dispositive. (Id. at 44a–47a). Second, Appellants faulted the District Court for not
following the totality of the circumstances approach mandated by Harris and followed by
this Circuit in Andrews (Id. at 43).
This Court, applying New Jersey state law when sitting in diversity, and applying
federal law with respect to Title VII, follows the Meritor “severe or pervasive”
standard. 27 Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106 (3d Cir. 1994) (citing
27
Some earlier cases from this Court do refer to the standard as “severe and
pervasive.” See e.g., Cardenas, 269 F.3d at 261, 262. Acknowledging this discrepancy, in
more recent years this Court has clarified that the controlling standard is “severe or
pervasive.” Jensen v. Potter, 435 F.3d 444, 449 & n.3 (3d Cir. 2006), overruled in part
on other grounds by Burlington N. & Santa Fe Ry. Co., 548 U.S. at 53. We have further
recognized that “the difference [between the standards] is meaningful, and the Supreme
Meritor Sav. Bank, FSB, 477 U.S. at 67; Andrews, 895 F.2d at 1482; Lehmann v. Toys ‘R’
Us, Inc., 626 A.2d 445, 453 (N.J. 1993)). With respect to the facts all three Appellants
present in support of their hostile work environment claims, the District Court assessed
all comments and actions in light of both their frequency and nature. (App. 30a–31a,
41a–43a, 64a–66a). Applying the same “severe or pervasive” test, as the District Court,
we reach the same conclusion, and will affirm the grant of summary judgment against all
three Appellants as to their hostile work environment claims. The District Court correctly
found that these incidents “did not unreasonably interfere with [Tourtellotte]’s ability to
perform her job.” (App. 29a–31a, stating that Tourtellotte’s hostile work environment
claim fails for the same reason as the claims of her co-plaintiffs). All three District Court
opinions demonstrate the correct application of the “severe or pervasive standard.” (Id. at
30a, 42a, 65a).
The District Court correctly acknowledged that under the totality of the
circumstances it “may,” but is not required to consider evidence of discriminatory
conduct directed at other individuals, “especially where such evidence may assist the
factfinder in determining whether facially neutral conduct was actually based on
plaintiff’s protected class.” (Id. at 41a. n.3) (citing Caver v. City of Trenton, 420 F.3d
Court’s word controls.” Id. at 449 n.3. Both sporadic and isolated conduct, which is
severe enough can give rise to a hostile work environment, as can less offensive conduct
which is sufficiently prevalent. Id. Therefore, this Court’s standard is identical to that
adopted by the New Jersey Supreme Court in Lehmann v. Toys R’ Us, Inc., 626 A.2d 445,
453 (N.J. 1993), and the District Court did not err by characterizing and applying these
standards as the same. (App. 40a n.2). The New Jersey standard is not a relaxed version
of the Title VII standard as Appellants incorrectly assert. (Appellants’ Br. 42).
243, 263 (3d Cir. 2005)); Andrews, 895 F.2d at 1485 (“[W]e hold that the pervasive use
of derogatory and insulting terms relating to women generally and addressed to female
employees personally may serve as evidence of a hostile environment.”). The District
Court clarified that in reaching this assessment it was not ignoring the evidence of
discriminatory conduct towards employees other than each individual plaintiff. (Id. at
43a). Appellants misconstrue Andrews. Appellants conflate its holding regarding the
totality of the circumstances approach to mean that citing the grievances of others and
asserting that these contributed to a hostile work environment is sufficient to establish a
prima facie case. 28 This argument misinterprets this Court’s precedent stating the
elements of a prima facie case of a hostile work environment claim. The totality of the
circumstances approach set forth in Andrews and its progeny allows courts to consider
the larger context in which the alleged incidents occur in hostile work environment
claims. See Andrews, 895 F.2d at 1474. Assessing the larger context does not allow each
Appellant to rely on the evidence without demonstrating how conduct directed towards
others impacted them in satisfaction of their own prima facie case. (App. 43a–44a).
Consequently, we will affirm the District Court’s grant of summary judgment against all
Appellants with respect to their hostile work environment claims.
28
While Andrews and NJLAD case law permit the introduction of discriminatory
conduct towards individuals other than the plaintiffs, this is limited to “other acts” of
which the plaintiff has firsthand knowledge. Godfrey v. Princeton Theological Seminary,
952 A.2d 1034, 1048–49 (N.J. 2008). The plaintiff must also establish the causal link
between these other acts and their own prima facie case. Here, we do not address the
experiences of other female Lilly employees cited in Appellants’ brief because they have
not demonstrated how these grievances contributed to their own, and have not established
sufficient knowledge of such acts. (Appellants’ Br. 15–19, 22–25).
4. Tourtellotte and Reyes’s Disability Discrimination Claims29
Tourtellotte and Reyes both assert disability discrimination claims. After
presenting the elements of a prima facie case of disability discrimination claim and the
categories of disability claims under the NJLAD, we first address Tourtellotte’s failure to
accommodate claim. Next, we analyze the issue of failure to exhaust administrative
remedies with respect to Reyes’s disability discrimination claim under the NJLAD.
Disability discrimination claims under the NJLAD proceed within the McDonnell
Douglas framework discussed supra. Viscik, 800 A.2d at 833–34 (applying McDonnell
Douglas to a disparate treatment NJLAD disability claim); Victor v. State, 4 A.3d
126, 140–41 (N.J. 2010) (applying McDonnell Douglas to a failure to accommodate
NJLAD disability claim). The specific elements a prima facie case of disability
discrimination vary to some extent, like all employment discrimination claims, depending
on the specific cause of action. Victor, 4 A.3d at 141–42. To establish a prima facie case
of disability discrimination for discriminatory discharge, a plaintiff must demonstrate
that: (1) she is the member of a protected class, specifically that she has or is perceived to
29
In her initial complaint, Krieger claimed that Lilly discriminated against her on
the basis of an alleged disability, specifically as a nursing mother and caregiver. In
response to Lilly’s request for admission, Krieger admitted that she was no longer
asserting this claim. (App. 49a n.6). This Court has long held that issues not raised before
the district court are waived and cannot be raised for the first time on appeal. Frank v.
Colt Indus., Inc., 910 F.2d 90, 100 (3d Cir. 1990). We do not address Krieger’s disability
discrimination claim since it was waived, and consequently appellate review is not
available.
For the reasons expounded infra, we will affirm the District Court’s finding that
Reyes did not exhaust her administrative remedies before filing in federal court.
Therefore, we do not reach the merits of her claim of disability discrimination under the
NJLAD.
have a disability as defined by the NJLAD;30 (2) she was otherwise qualified to perform
the essential functions of the job, with or without reasonable accommodation by the
employer; (3) she experienced an adverse employment action; and (4) the employer
sought someone else to perform the same work, or did fill the position with a similarly-
qualified person. Id. Satisfaction of all four elements of a prima facie case creates a
presumption of discrimination. Andersen v. Exxon Co., U.S.A., 446 A.2d 486, 492–93
(N.J. 1982). At this point the McDonnell Douglas framework proceeds in the same
manner as with the other claims described supra. Viscik, 800 A.2d at 833; Andersen, 446
A.2d at 493.
a. Tourtellotte
Tourtellotte premises her disability claim on a non-physical handicap, based on the
mental health diagnoses she received due to Rowland’s conduct. (App. 18a.). The District
Court found that Tourtellotte presented sufficient evidence to demonstrate that she
suffered from a cognizable non-physical handicap upon which she could premise her
discrimination claim. (Id. at 19a). The District Court nevertheless granted summary
30
The Supreme Court of New Jersey has noted that while disability discrimination
claims under the NJLAD proceed according to McDonnell Douglas, “[i]dentifying the
elements of the prima facie case that are unique to the particular discrimination claim is
critical to [a claim’s] evaluation.” Victor, 4 A.3d at 142. The Court has further observed
that the first element of a prima facie case of disability discrimination differs from other
discrimination claims in that it “requires [the] plaintiff to demonstrate that he or she
qualifies as an individual with a disability, or who is perceived as having a disability, as
that has been defined by statute.” Id. (footnote omitted). The NJLAD defines disability in
a broader sense than does federal law. Id. at 142 n.11.
judgment against Tourtellotte under her failure to accommodate claim on the basis of
failure to engage in the interactive process. (Id. at 22a).
i. Failure to Accommodate
Once a plaintiff has established a prima facie case of disability discrimination, in a
failure to accommodate claim the plaintiff must establish four elements “to show that an
employer failed to participate in the interactive process.”31 Victor, 4 A.3d at 145 (quoting
Taylor v. Phoenixville Sch. Dist., 184 F.3d 296, 319 (3d Cir. 1999)). The elements are
that: “1) the employer knew about the employee’s disability; 2) the employee requested
accommodations or assistance for his or her disability; 3) the employer did not make a
good faith effort to assist the employee in seeking accommodations; and 4) the employee
could have been reasonably accommodated but for the employer’s lack of good faith.” Id.
at 145 (quoting Taylor, 184 F.3d at 319–20). Interpreting the requirements of the NJLAD
articulated by New Jersey courts, this Court places the burden on the employer, who has
notice of an employee’s disability, to make a reasonable accommodation for the
employee. Armstrong, 438 F.3d at 247. This burden does not require that “any particular
concession must be made by the employer . . . [but instead what it] requires is that
employers make a good-faith effort to seek accommodations.” Victor, 4 A.3d at 150
31
New Jersey courts have recently suggested that it may be possible to
successfully assert failure to accommodate as a separate claim without a prima facie
showing of disability discrimination. Victor, 4 A.3d at 145–49. This would allow
plaintiffs who have not experienced an adverse employment action such as termination,
to nevertheless assert a failure to accommodate claim. At the time of this Opinion, this
Circuit has not yet decided this issue. Since Tourtellotte experienced an adverse
employment action, we need not determine if failure to accommodate can proceed as a
separate action.
(alterations in original) (quoting Taylor, 184 F.3d at 317). An employer making a good
faith effort in the interactive process bears the responsibility of “mak[ing] [a] reasonable
effort to determine the appropriate accommodation.” Armstrong, 438 F.3d at 247(quoting Tynan v. Vicinage 13 of Super. Ct., 798 A.2d 648, 657 (N.J. Super Ct. App. Div.
2002)).
The District Court correctly found that Tourtellotte presented sufficient evidence
to show that she is disabled as matter of law. (App. 19a). Tourtellotte states that as a
result of Rowland’s conduct she suffered from extreme stress and anxiety, for which she
sought treatment by an internal medicine practitioner. (Id. at 13a, 1860a). Looking to the
requirements of a failure to accommodate claim, Tourtellotte easily meets the first two
elements. Lilly does not dispute that it was aware of Tourtellotte’s disability because she
requested medical leave based on her mental health issues. (Id. at 21a). With respect to
the second element, Lilly agrees that Tourtellotte’s request to not come in contact with
Rowland constituted a request for accommodation. (Appellee Lilly’s Br. 44).
Tourtellotte’s disability discrimination on the basis of failure to accommodate
claim fails at the third element, which focuses on whether the employer did acted in good
faith. We agree with the District Court’s finding that Lilly met its burden and engaged in
the interactive process in good faith. (App. 21a). As the District Court found, it was
Tourtellotte’s outright refusal to engage in the interactive process at all, that made
summary judgment against her on this claim appropriate. (App. 22a). Tourtellotte’s
reliance on Tynan, in which the Superior Court of New Jersey determined a material
issue of fact existed in whether the employer acted in bad faith by not initiating the
interactive process, is misplaced here. (Appellants’ Br. 53–54) (citing Tynan, 798 A.2d at
658). Unlike Tynan, Lilly did not ignore Tourtellotte’s request and did not effectively
force her to return to work without any accommodation. See id. Lilly told Tourtellotte
that it could not guarantee that she would never come in contact with Rowland, and
Tourtellotte has not presented any evidence indicating that this response to Tourtellotte’s
request was not made in good faith. (App. 1890a). As the District Court noted, Lilly
engaged in the interactive process by “identif[ying] specific positions outside of
Rowland’s chain of command for [Tourtellotte] to consider. Yet [Tourtellotte] failed to
apply for a single position during this period.” (Id. at 22a). Tourtellotte’s description of
HR Representative Washburn’s response to her request does not compel the result that
Tourtellotte has demonstrated failure on the part of Lilly to make a good faith effort.32
32
On appeal, Tourtellotte contends that at Washburn’s deposition he admitted that
it was possible to accommodate Tourtellotte’s request. (Appellants’ Br. 53–54); (App.
755a–756a). The disagreement between the parties as to exactly what Washburn told
Tourtellotte does not foreclose the entry of summary judgment. The parties do not dispute
that Tourtellotte’s requested accommodation was to have no contact with Rowland. (Id.
at 21a–22a). Lilly’s response to this request does not demonstrate that Lilly failed to meet
its burden in the interactive process. Tourtellotte does not present a genuine factual
dispute as to whether Lilly’s response constituted a reasonable accommodation. At his
deposition, Washburn merely said he supposed it would be possible for Tourtellotte to
have hardly any interaction with Rowland, except for email. (App. 755a–756a). This is
not inconsistent with what Tourtellotte claims Washburn told her during her medical
reassignment, which is that he could not guarantee she could avoid Rowland. (App.
1890a). Lilly presented reasonable accommodations by identifying positions outside
Rowland’s chain of command, while Tourtellotte refused to engage in the interactive
process because the accommodation was not the specific one she requested. (App. 1896);
see Armstrong, 438 F.3d at 247. As this Court has stated in Armstrong, “once an
employer engages in the interactive process, both parties have an obligation to take part
in the process in good faith.” 438 F.3d at 249 n.15 (citing Taylor, 184 F.3d at 317). “An
employer cannot be faulted if after conferring with the employee to find possible
accommodations, the employee then fails to supply information that the employer needs
Accordingly, we will affirm the finding of the District Court granting summary judgment
against Tourtellotte on this claim.
b. Reyes’s Disability Discrimination Claim Under the ADA33
Plaintiffs pursuing discrimination claims must file a discrimination charge with the
required agencies, including the EEOC, prior to filing in federal court. Williams v.
Runyon, 130 F.3d 568, 573–74 (3d Cir. 1997). Reyes claims Lilly discriminated against
her on the basis of disability in violation of the ADA. (App. 59a). The District Court
found that Reyes did not exhaust administrative remedies for her disability discrimination
claim because this claim was not within the scope of the EEOC complaint or the resulting
investigation. (Id.). In the complaint Reyes filed jointly with the EEOC and PHRC, she
checked off the boxes indicating her pursuit of discrimination claims on the basis of race
and sex, but not disability. (Id.). The accompanying factual statement identified Reyes’s
or does not answer the employer’s request for more detailed proposals.” Id. (quoting
Taylor, 184 F.3d at 317) (internal quotation marks omitted). Tourtellotte’s insistence on a
single unreasonable accommodation and rejection of all other possibilities renders
Tourtellotte the party responsible for the breakdown in the interactive process. See
Taylor, 184 F.3d at 316 n.7; Gaul v. Lucent Techs., Inc., 134 F.3d 576, 579-81 (3d Cir.
1998) (holding that an employee’s request to be transferred away from co-workers who
caused him stress was unreasonable as a matter of law because he failed to make a prima
facie showing that his proposed accommodation was possible). Based on Tourtellotte’s
undisputed refusal to apply for a single job during her sixteen-week medical reassignment
period, even after Lilly’s HR department identified two jobs outside Rowland’s chain of
command, a reasonable jury could not find that Tourtellotte demonstrated Lilly’s failure
to engage in good faith.
33
Reyes also claims discrimination based on failure to accommodate because Lilly
did not respond to her request that she be assigned a new supervisor or she would not
return to work. The District Court did not consider this basis for disability discrimination
since the disability claim was dismissed for failure to exhaust administrative remedies.
(App. 68a n.5). We do not reach this claim on the same grounds as those set forth by the
District Court.
national origin and ethnicity, but did not indicate any specific bases for discrimination.34
Reyes contends that her references to “mental and physical distress,” as well as medical
leave and medication for anxiety could have reasonably notified the EEOC of a possible
disability discrimination claim. (Id.; Appellants’ Br. 48–49). We agree with the District
Court that Reyes did not exhaust the administrative remedies for her disability
discrimination claim because her complaint did not provide a basis from which the EEOC
could reasonably have notice of such a claim.
Reyes’s claim does not fail simply because she did not check the box indicating
she wished to file a charge of discrimination on the basis of disability. As the District
Court also noted, Reyes’s claim fails because there is nothing in the factual statement
filed with the charge that would make a disability discrimination complaint reasonably
related to the EEOC charge. (App. 59a–60a). Our determination that Reyes did not
exhaust administrative remedies with respect to this claim is based on her failure to
provide any basis from which the EEOC could be on notice of her intent to bring a
disability discrimination charge. Additionally, Appellants’ insistence that Hicks v. ABT
Associates, Inc. entailed a “virtually identical” process is inaccurate. (Appellants’ Br. 49).
In Hicks, this Court determined that there was an issue of material fact as to whether the
34
Reyes wrote the following for the portion of the complaint asking for the
complainant to identify themselves as it relates to the basis for discrimination: “I am
Hispanic and a national from the Dominican Republic.” (App. 59a) (internal quotation
marks omitted). In the complaint Reyes described the harm resulting from the alleged
discrimination as: “Due to Mr. Rowland’s behavior, I have suffered mental and physical
distress and loss of pay. I am currently on Medical Leave and am taking medication for
anxiety as a result of this treatment.” (Id.) (internal quotation marks omitted).
plaintiff had tried to amend his complaint, but which the EEOC improperly refused to
allow. Hicks v. ABT Assocs., Inc., 572 F.2d 960, 964 (3d Cir. 1978). The issue in Hicks
was whether summary judgment was proper when it was arguable that the Appellant had
amended the complaint. Id. at 963–64. In the present case, Reyes made no attempt to, nor
does she argue that she did, amend the complaint, or file an additional one. Looking at
the factual statement provided, we will affirm the District Court’s finding that Reyes
failed to exhaust administrative remedies as to her disability discrimination claim.
5. Retaliation Claims Under Title VII and the PHRA
Section 704(a) of Title VII states in relevant part that “[i]t shall be an unlawful
employment practice for an employer to discriminate against [an employee] . . . because
he has made a charge” of discrimination against the employer. 42 U.S.C. § 2000e–3(a).
To establish a prima facie case of retaliation under Title VII and the PHRA35, a plaintiff
must produce “evidence that: (1) she engaged in activity protected by Title VII; (2) the
employer took an adverse employment action against her; and (3) there was a causal
connection between her participation in the protected activity and the adverse
employment action.” Moore, 461 F.3d at 340–41 (quoting Nelson v. Upsala Coll., 51
F.3d 383, 386 (3d Cir. 1995)) (internal quotation marks omitted). In assessing whether
35
With few exceptions, none of which apply here, the PHRA is applied in the
same manner as Title VII. This Court has stated that the “aiding and abetting” provision
in PHRA goes beyond the protections Title VII affords. As discussed infra, since we do
not reach Appellants’ claim that Rowland aided and abetted Lilly because we determine
that Lilly has not violated any of the applicable statutes, we apply the McDonnell
Douglas test to the claims brought under both statutes in a single analysis. Dici v.
Pennsylvania, 91 F.3d 542, 552 (3d Cir. 1996).
there is a causal connection, this Circuit has focused on the temporal proximity of the
protected activity and the adverse employment action, as well as whether or not there is a
pattern of antagonism. Jensen v. Potter, 435 F.3d 444, 450 (3d Cir. 2006), overruled in
part on other grounds by Burlington N. & Santa Fe Ry. Co., 548 U.S. at 53. This Court
has stated that the “retaliatory conduct must be serious and tangible enough to alter an
employee’s compensation, terms, conditions, or privileges of employment.” Robinson,
120 F.3d at 1300. Accordingly, we use an objective standard, in which “a reasonable
employee would have found the alleged retaliatory actions ‘materially adverse’ in that
they ‘well might have dissuaded a reasonable worker from making or supporting a charge
of discrimination.’” Moore, 461 F.3d at 341 (quoting Burlington N. & Santa Fe Ry. Co.,
548 U.S. at 68).
If the plaintiff establishes a prima facie case, the analysis proceeds as described
supra within the McDonnell Douglas framework, which applies to retaliation cases
brought under Title VII and the PHRA. Daniels v. Sch. Dist. of Phila., 776 F.3d 181,
192–93 (3d Cir. 2015). Once the employer provides legitimate, non-retaliatory reasons
for its action, the burden shifts back to the employee, who must demonstrate, by the
preponderance of the evidence, that the employer’s proffered reasons were merely
pretextual. Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500-01 (3d Cir. 1997). This Court
has recognized two alternative ways by which a plaintiff can demonstrate pretext.
Atkinson, 460 F.3d at 454. One, the plaintiff can provide evidence that “casts sufficient
doubt upon each of the legitimate reasons proffered by the defendant so that a factfinder
could reasonably conclude that each reason was a fabrication.” Fuentes, 32 F.3d at 762.
Two, the plaintiff can present evidence that “allows the factfinder to infer that
discrimination was more likely than not a motivating or determinative cause of the
adverse employment action.” Id.a. Tourtellotte
Tourtellotte claims that Lilly violated the NJLAD by retaliating against her for
filing a complaint about Rowland with HR. (App. 26a–27a). The District Court found
that Tourtellotte did not establish a prima facie case due to her failure to establish a
causal connection between her grievance and her termination. (Id.). On appeal,
Tourtellotte argues that the District Court erred in granting summary judgment against
her retaliation claim for two reasons.36 First, Tourtellotte asserts that the District Court
mischaracterized the facts regarding her communications with Washburn. (Appellants’
Br. 55). Second, Tourtellotte contends that the District Court held her to a heightened
standard, which it did not apply to Reyes, whose retaliation claim was the only claim of
the Appellants to survive summary judgment. (Appellants’ Br. 56). Tourtellotte contends
36
Tourtellotte also argues that the District Court erred in granting summary
judgment against her on the retaliation claim because it usurped the role of the jury. As
discussed supra, per Rule 56 and this Court’s jurisprudence, a court does not err by
granting summary judgment on a claim when it determines there is no genuine issue of
material fact and the movant is entitled to judgment as a matter of law. Because
Tourtellotte has failed to meet her burden as the nonmoving party opposing summary
judgment by demonstrating any genuine issue of material fact as to a causal link between
her complaint and her termination, the District Court correctly entered summary
judgment on this claim, which we will affirm.
Echoing the arguments of her co-Appellants, Krieger charges the District Court
with improperly usurping the role of the jury in determining that she failed to prove that
Lilly’s nonretaliatory reason was pretext. (Appellants’ Br. 58–59). For the reasons stated
above in relation to Tourtellotte’s claim, we reject this argument.
that the facts of her retaliation claim are “nearly identical” to Reyes’s. (Appellants’ Br.
56). Even construing the record in the light most favorable to Tourtellotte, the District
Court correctly determined that Lilly’s response to Tourtellotte’s request complied with
its obligation under the NJLAD. The second assertion over simplifies the nuanced
specifics of each case, and the impact of Tourtellotte’s actions while on medical
reassignment, which were not present in Reyes’s case.
Tourtellotte provides no facts supporting her allegation that Lilly placed her on
medical reassignment for the purpose of terminating her employment. (Appellants’ Br.
55). As discussed in the section supra on Tourtellotte’s disability discrimination claim on
the basis of failure to accommodate, Tourtellotte was responsible for the breakdown in
the interactive process. Tourtellotte has not provided any other that would establish a
causal link between her HR complaint and termination. For the reasons set forth by the
District Court, we will affirm the grant of summary judgment against Tourtellotte on her
retaliation claim. (App. 27a–28a).
b. Krieger
Krieger claims that Lilly retaliated against her in violation of Title VII and the
NJLAD for filing a charge of discrimination with the EEOC and making two complaints
against Rowland to HR. (See id. 35a–37a, 48a). The District Court did not make a finding
that Krieger established a prima facie case of retaliation, but found that even if she was
able to do so, her claim would fail at the pretext stage because Lilly provided a facially
neutral reason for disciplining and ultimately terminating Krieger. (Id. at 48a–49a).
Krieger has not produced any evidence that suggests Lilly’s actions were pretextual and
not merely based on her numerous well-documented and self-admitted performance
deficiencies, which resulted in a probationary period and two warnings issued in a year.
As the District Court correctly concluded, even if Krieger could establish a prima
facie case of retaliation, Lilly’s neutral reasons for disciplining and ultimately terminating
Krieger are facially valid. Krieger admitted to engaging in the conduct that gave rise to
the performance deficiencies meriting adverse employment action. (Id. at 49a). Krieger’s
assertion that her admitted misconduct and performance issues are pretext since other
employees engaged in similar conduct and did not face discipline are bare assertions, and
are insufficient under this Court’s precedent to prove pretext. See Fuentes, 32 F.3d at
762. Pointing to the non-discipline of other employees, Krieger fails to demonstrate
pretext under either of this Court’s alternative theories. Krieger has not provided
evidence that other employees, particularly those outside her protected class whom she
references such as her male partner Puleo, have in fact committed substantially similar
conduct and received no discipline. Her bare assertions about what has not happened in
response to her coworkers’ alleged deficiencies is not sufficient evidence to cast doubt on
Lilly’s proffered reasons. Id. Nor are these assertions evidence of “such weaknesses,
implausibilities, inconsistencies, incoherencies, or contradictions in the employer’s
proffered legitimate reasons for its actions that a reasonable factfinder could rationally
find them unworthy of credence.” Atkinson, 460 F.3d at 454 (quoting Keller v. Orix
Credit Alliance, Inc., 130 F.3d 1101, 1108–09 (3d Cir. 1997)) (internal quotation marks
omitted). Consequently, we will affirm the grant of summary judgment against Krieger
on her retaliation claim. (App. 49a).
c. Reyes’s Challenges to Evidentiary Rulings at Trial
Reyes’s retaliation claim was the only claim of Appellants to survive Lilly and
Rowland’s renewed motions for summary judgment and reach a jury. Reyes challenges
two of the District Court’s evidentiary rulings at trial. One, Reyes challenges the District
Court’s denial of her motion in limine to include evidence of Rowlands’s conduct
towards other employees. (Appellants’ Br. 61–62). 37 At trial, the District Court restricted
introduction of evidence about Rowland’s conduct towards others to that which Reyes
personally observed. (App. 1990a–1992a). Reyes asserts that at sidebars during the trial
she attempted to make offers of proof as to why the court should admit evidence of
similarly situated individuals and Lilly’s failure to properly investigate her claims.
(Appellants’ Br. 62 & n.14). Two, Reyes challenges the District Court’s admission, to
which she objected at trial, of Lilly’s direct examination of Brian Rafferty, Rowland’s
supervisor, about the coaching provided to Rowland in response to the HR investigations.
(Appellants’ Br. 64–65). At sidebar, Reyes’s counsel contended that the direct
37
Appellee Lilly asserts that the denial of this motion in limine is not appealable as
a final order under 28 U.S.C. § 1291 and rather is merged into the December 16, 2014
jury verdict. We disagree. This Court reviews final rulings by a district court on motions
in limine made definitively on the record. See, e.g., Forrest v. Beloit Corp., 424 F.3d 344,
348–49 (3d Cir. 2005); United States v. Peppers, 302 F.3d 120, 137–39 (3d Cir. 2002).
Here, the District Court made a final ruling on Reyes’s motion in limine, which was part
of the January 29, 2014 order. (App. 4a–5a).
Appellee Lilly also contends that Reyes’s attempt to incorporate the motion in
limine by reference does not satisfy Federal Rule of Appellate Procedure 28. (Appellee
Lilly’s Br. 53 n.11) (citing Appellants’ Br. 61 n.13). Appellants cite the specific pages of
the record in the Appendix containing the motion in limine, as required by Federal Rule
of Appellate Procedure 28(e) and are not in violation of this rule. (Appellants’ Br. 61
n.13).
examination of Rafferty was an attempt to illicit testimony about complaints made by
other employees, which was barred by the District Court’s prior evidentiary ruling. (App.
1464a, 1479a–1480a). In the same order denying Reyes’s motion in limine to include
evidence, the District Court granted Lilly’s motion in limine to exclude evidence of
alleged inappropriate incidents unrelated to Reyes’ claim experienced by former
plaintiffs, namely are her co-Appellants. (Id. at 4a–5a).
The standard of review for the admission or exclusion of evidence is generally
abuse of discretion. Walden, 126 F.3d at 517. If a party fails to preserve an evidentiary
ruling, this Court reviews for plain error. 38 Id. Evidentiary issues are properly preserved
when the moving party makes offers of proof during trial to admit or object to evidence.
Northeast Women’s Ctr., Inc. v. McMonagle, 868 F.2d 1342, 1352–53 (3d Cir. 1989).
Pursuant to Rule 61, we will not remand or reverse if the admission or exclusion of
evidence constituted harmless error. Abrams v. Lightolier Inc., 50 F.3d 1204, 1213 (3d
Cir. 1995). An error is harmless “only if it is highly probable that the error[] did not
affect the outcome of the case.” Hirst v. Inverness Hotel Corp., 544 F.3d 221, 228 (3d
Cir. 2008) (alteration in original) (quoting McQueeney v. Wilmington Trust Co., 779 F.2d
916, 917 (3d Cir. 1985)) (internal quotation marks omitted). Additionally, Rule 61
38
This Court has cited the three requirements that the United States Supreme
Court requires for a plain error challenge: “First, there must be an actual error—a
deviation from or violation of a legal rule. Second, the error must be plain; that is, the
error must be clear and obvious under current law. Finally, the error must affect
substantial rights.” Walden, 126 F.3d at 520 (citing United States v. Olano, 507 U.S. 725,
732–34 (1993)). For a plain error challenge to an evidentiary ruling to succeed, the
appealing party must demonstrate that the error was both prejudicial and affected the
outcome of the proceedings below. Id.provides that harmless error is any error that does not affect “any party’s substantial
rights.” Fed. R. Civ. P. 61.
Assuming that Reyes properly preserved her objections to the evidentiary ruling
on her motion in limine, we review both challenges for abuse of discretion.39 Reviewing
under this standard, we cannot say that the District Court abused its discretion by
excluding Reyes’s evidence and admitting Lilly’s. See Abrams, 50 F.3d at 1213. In her
brief, Reyes only describes the evidence precluded by the denial of her motion in limine
in very general terms, stating that the District Court “prohibited all evidence described [in
this brief] regarding the seven women that complained to Lilly about Rowland.”
(Appellants’ Br. 62). Other than general statements that the evidence would bear on
Rowland’s motive, Reyes does not describe how the exclusion of this evidence affected
the outcome of her trial. (Id.). As Reyes noted, this Court has stated that a “plaintiff may
rely upon a broad array of evidence to demonstrate a causal link, [including evidence of]
ongoing antagonism, inconsistent reasons for termination, and certain conduct towards
others.” (Appellants’ Br. 63) (alteration in original) (quoting App. 71a) (internal
quotation marks omitted) (citing Farrell v. Planters Lifesavers Co., 206 F.3d 271, 284
39
Appellee Lilly argues that Reyes failed to preserve her objection to the evidence
she wished to admit through her motion in limine by not making individual offers of
proof on this evidence at trial, necessitating review for plain error. Citing the record,
Reyes disputes Lilly’s assertion. (Appellants’ Br. 62 n.14). We assume, for the purposes
of this appeal, that Reyes properly preserved this objection. Even under the less stringent
abuse of discretion test, Reyes’s challenge fails since she has not demonstrated that this
ruling affected her substantial rights in terms of the outcome of the case.
Reyes objected to Lilly’s direct-examination of Rafferty at trial so we review this
ruling for harmless error. Abrams, 50 F.3d at 1213; (App. 1464a–1484a).
(3d Cir. 2000)). However, this does not require that a trial court admit such evidence
when it is, in the discretion afforded the court, not in accordance with the rules of
evidence, such as threshold requirements of relevance and first-hand knowledge.
Reviewing under this highly deferential standard, Reyes’s challenge fails because she has
not demonstrated how this ruling impacted her ability to establish her case. This renders
any error harmless. See Abrams, 50 F.3d at 1213 (citing Fed. R. Civ. P. 61). Under the
abuse of discretion standard, we will affirm the District Court’s denial of Reyes’s motion
in limine.
With respect to Reyes’s challenge to the contents of Rafferty’s direct examination
about the coaching provided to Rowland, Reyes states that the denial of her motion in
limine, coupled with the admission of this evidence by Lilly, was “doubly prejudicial.”
(Appellants’ Br. 65). In support of this, Reyes only asserts that this evidence could allow
the jury to assume that Rafferty only coached Rowland on Reyes’s complaints and not
others, but does not state how this impacted her ability to establish her case. (Id. at 64–
65). Additionally, the District Court allowed Reyes to cross-examine Rafferty on the
complaints, mitigating both her concerns about some of the evidence she wished to
include in her motion in limine, as well as any negative impact of Rafferty’s testimony.
(App. 1482a–1484a). Reviewing for harmless error, we cannot say that the District Court
abused its discretion in admitting this evidence, which Reyes has not demonstrated
affected her substantial rights. Accordingly, we will affirm the challenged admission.
6. Claims Against Rowland
Tourtellotte and Krieger claim that Rowland violated the NJLAD by aiding and
abetting Lilly’s violations of the relevant statutes.40 (Appellants’ Br. 4). These Appellants
only name Rowland jointly with Lilly for their NJLAD claims and for Krieger’s § 1981
claim. (Appellee Rowland’s Br. 26). Since none of the Appellants have established a
prima facie case for any of their claims against Lilly, Rowland cannot be individually
liable. The NJLAD does not provide for individual liability for aiding and abetting if the
employer is not found liable. Cicchetti v. Morris Cnty. Sheriff’s Office, 947 A.2d 626,
645 (N.J. 2008) (citing N.J. Stat. Ann. §10:5–12(e)). Accordingly, we will affirm the
District Court’s grant of summary judgment in favor of Rowland on all claims and do not
reach the merits of Appellants’ claims. (App. 6a).
While we agree with the District Court that many of Rowland’s actions were
“inexcusable and offensive,” none of the alleged conduct rises to the level of unlawful
discrimination. (Id. at 30a).
III. Conclusion
For the foregoing reasons, we will affirm the final judgments of the District Court
on appeal before us.
40
Reyes did not name Rowland as a defendant in her complaint for any claims.