Davis v. Allstate Insurance et al

MOTION for Summary Judgment

D.N.J.January 9, 2018

Yvette C. Sterling, Esq. STERLING LAW FIRM 1818 Old Cuthbert Road, Ste. 202 B Cherry Hill, NJ 08034 Tel: 856-4296666 Fax: 609-4828196 Attorneys for Plaintiffs ON BRIEF PLAINTIFF’S BRIEF FOR AN ORDER OF SUMMARY JUDGMENT IMPOSING LIABILITY ON DEFENDANTS FOR ALL CLAIMS Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 1 of 33 PageID: 1221 2 Yvette C. Sterling, Esq. STERLING LAW FIRM 1818 Old Cuthbert Road, Ste. 202 Telephone: (856) 429-6666 Facsimile: (609) 482-8196 Attorneys for Plaintiff IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY ROBIN DAVIS, Plaintiff, v. ALLSTATE INSURANCE d/b/a ALLSTATE NEW JERSEY, JEFFREY P. DWYER, DANIEL DRESSEL, DOES 1-10, Defendants. : : : : : : : : : : : Civil Action No. 1:16-CV-01202-RMB-AMD TO the COURT and ATTORNEY OF RECORD FOR DEFENDANTS, Please take Notice that on February 5, 2018 at 9:00 am in the forenoon or as soon thereafter as the Matter can be heard, Plaintiff Robin Davis will move for an order of summary judgment against Defendants on the grounds that there are no issues of material disputed facts regarding the issues of liability for the defendants failure to investigate, Plaintiff’s allegations of discrimination against Jeffrey Dwyer, failure to follow Allstate’s Policy regarding investigations and the treatment of Plaintiff after she had lodge a complaint against her supervisor, failure to accommodate her after she was returned to work with restrictions, failure to engaged in the interactive process, for retaliation and for failure to follow the NJLAD antidiscrimination mandate. Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 2 of 33 PageID: 1222 3 This motion will be based upon this brief with points and authorities attached, Certification of Plaintiff and Certification of Attorney with exhibits attached and such legal and equitable arguments presented at time of hearing. Respectfully Submitted, STERLING LAW FIRM /s/ Yvette C. Sterling Yvette Sterling Dated January 8, 2018 Attorney or Plaintiff POINTS AND AUTHORITIES: I. PROCEDURAL HISTORY Plaintiff filed this lawsuit in or around January 8, 2016 in the Superior Court of New Jersey, Law Division (Burlington County). The Complaint contains seven (7) counts against Defendants including (1) disability discrimination (under the Americans with Disabilities Act (“ADA”) and the New Jersey Law Against Discrimination (“NJLAD”)), (2) age discrimination (under the NJLAD), (3) race discrimination (under the NJLAD), (4) gender discrimination (under the NJLAD), (5) retaliation for complaining about discrimination (under the NJLAD), (6) hostile work environment/harassment (under the NJLAD), and (7) intentional infliction of emotional distress. Defendants removed the action to this Court on March 3, 2016, (ECF No. 1), and answered the Complaint on March 10, 2016. (ECF No. 5). Through extensions and requests the Court granted the parties leave to file dispositive motions by January 8, 2018 and then by requests of Plaintiff’s Counsel the deadline was extended to January 9, 2018. Settlement Conference is set for February 7, 2018. Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 3 of 33 PageID: 1223 II PRELIMINARY STATEMENT A. UNDISPUTED FACTS: Plaintiff, Robin Davis (“Davis”) is an African American female over the age of 50. [ Pl. Aff. At ¶1] Plaintiff Commenced working for Allstate in 1986 and has been employed with Allstate for 32 years. [Pl. Aff. at ¶ 2¶] She been working for Allstate for 28 years before encountering the issues she had with Jeff Dwyer (“Dwyer”). [Pl. Aff. at ¶ 6] Plaintiff had worked with Jeffrey Dwyer before on and off since 1996 and was always treated less unfairly than her white counterparts, she did lodge a complaint with Geller in 2006 but also, dealt directly with him with her complaints, for instance she did complain to him about the extra amount of work he gave her compared to her comparators. [Pl. [Pl. Aff. at ¶ ¶ 3, 13, 15] In 2011 Paul Mariconda (“Mariconda”) again became her supervisor replacing Jeff Dwyer. Plaintiff and had no issues when he was her supervisor because she was and continued to be one of the top producers for fast track results. Plaintiff was either number one (1) or number two (2) out of 14 offices in the country. She also made all her goals and had no issues with Mariconda as her supervisor. [Pl. Aff. at ¶t 5] [Ex. 1 to Att. Cert. 24:5-20] Dwyer had obvious issues with African- American people who attained a measure of success, for instance President Barrack Obama the first African-American. Plaintiff noticed Dwyer expressed a considerable amount of unfavorable statements about President Obama and on many occasions associating Plaintiff with President Obama using the buzz word that they were both “liberal.” [Pl. Aff. at ¶ 13] Dwyer belief was voiced in a meeting after Plaintiff was out on disability that Plaintiff did not need her job as Davis had used Allstate to “accumulate wealth,” which he reiterated in his deposition. [Ex. 1 to Att. Cert. at 123:15 to 136:25 Plaintiff was the only African -American CSL that has ever worked for Jeff Dwyer. [Pl. Aff. at. 4] [Ex. 1 to Att. Cert. 29:4 to 30:6] After Dwyer again had supervisory role over Plaintiff in December Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 4 of 33 PageID: 1224 5 2013. She and others began to see that he wanted to implement policies that were not equitable to all employees. [Pl. Aff. at ¶ 4] Plaintiff’s previous supervisor Mariconda also saw that and brought it to the attention of Dan Dressel (“Dressel”) The head of Claims for Allstate New Jersey. [Ex. 3, 85:24- 89:21, 91-93] Although aware that Dwyer might not be following company policy, as this complaint involved creating new rules and road blocks to prevent the promotion of an older female in violation of the IDEA and the LAD, Dressel did not address this complaint with Dwyer. [Ex. 1 to Att. Cert. 150:2- 151:18; Ex. 3, 44:10-23, 24:16 to 25:18]] While it seemed that Dwyer was a person who believed that he did not have to follow the rules or of the company, federal or state laws. This was brought to the attention of Dressel and Annette Geller (head of HR) by another employee who resigned in 2014. He informed them that Dwyer was not treating employees equitable and that he was afraid of retaliation from Dwyer. [Ex. 2 73:17 to 77:24, 89:16 to 92:5] Dressel saw the complaint but did not address it with Dwyer. [Ex. 3, 24:16 to 25:18] However, Dwyer had a particular desire to get rid of Plaintiff, the African American woman, who had amassed wealth at the expense of Allstate, notwithstanding that she was doing her job for that pay, and doing an exceptional job. Therefore, although Plaintiff had no performance issues and was one of the top fast track producing CSLs in the country, Dwyer in 2014 asked Plaintiff’s comparator to provide her with a pending report to show their pending claims. However, the reports were generated by the system and there was nothing that could be done with these files. However, he kept generating these reports under the guise that this will help her with her work. [Pl. Aff. at ¶ 7] Ex. 1 to Att. Cert. 92:11-13, 92:13 to 94:17] [Ex. 4 to Att. Cert., 15:14-20, 27:3 to 28:1 25:14 to 26:16, 34:2 to 36:25] These were only provided to her even though, Fast Track report applies to all supervisors not just Davis. [Ex. 5 32:16 33:22] Plaintiff had not received that paperwork before and she did not see that it was being given at all or as frequently or at all to the other CSL even those with performance issues Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 5 of 33 PageID: 1225 6 although it could have been generated for other areas. [Pl. Aff. at ¶ ¶ 7, 27, 37-40] “The 14-day review coverage assignment can be used for the entire property claim organization but just a tool as reports vary.” [Ex. 5 38:39:24] Additionally, Plaintiff was also being spoken down to and singled out by Dwyer, this became increasingly hostile and plaintiff went to Annette Geller (“Geller”) in February 2014, to complain about this pressure she was under and provide information that she was afraid that this would lead to her losing her job. [Pl. Aff. at ¶ ¶ 8, 912, 21, 22, 24,25, 26, 27, 31, 32,] In her complaint to Geller Davis informed her that Dwyer is singling her out and provided only Plaintiff with certain unheralded reports. Which he asked Bob Lehman to provide only for Plaintiff. [Pl. Aff. at ¶ ¶7,8 27, 28, 29, 30, 37, 38, 39, 40-43] [ Ex. 1 To Att. Cert, 92:11-13] [Ex. 4 to Att. Cert. 15:14 to 29:4] 35:1 to 36:25, 42:3 to 44:16]] Normally these reports are tools to be used by the RCLs employees, in Dwyer’s position [Ex. 5 48:16-19] Dwyer did not stop there, he also only loaded Plaintiff with FNOL goals although it was a companywide initiative and others could have also been involved to meet the companies needs and goals. When plaintiff returned from disability, Jeff made it a department wide goal and all managers were included. [Pl. Aff. at ¶ ¶ 7,] [Ex. 1 to Att. Cert. 56:4-7, 58:7-15], 64:11-19] Dwyer also, requested load balancing work unlike any other RSL in his position. This was requested only for Davis’ department. [Pl. Aff. at ¶ ¶] [Ex. 1 110:9 to 111:5] [Ex. 5 91: 13 to 92:22] He knew that Load balancing can impact CSL’s such as Ms. Davis’ performance and will lower her percentages. [Ex. 5. 102:20 to 103:25] Dwyer rational based upon his testimony was that he only gave the report to Robin because one of her subordinate was complaining about the load of work he had to do compared to others. However, he still requested that the controller provided more work for Robin’s department. If that was his concern wouldn’t he lower the load not increase it? Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 6 of 33 PageID: 1226 7 In continuing his harassment of Davis, Dwyer evaluated Plaintiff using Voice criteria contrary to Allstate’s directives and the company’s policies in evaluating CSLs. [Ex. 1 110:9 to 111:5] Plaintiff’s complaint to Geller she believed was enough for Geller to consider and investigate this as a race or some violation of her rights to be free from a hostile work environment. Therefore, she waited for some reply from Geller. However, Geller did not explain to Plaintiff or informed Plaintiff of any investigation into Jeff Dwyer.] [Pl. Aff. at ¶ ¶ 36] Plaintiff again followed up with Geller regarding her written, complaint in February 2014, because the situation had become worse with Dwyer presenting her with 14 day reports an accusing her of not properly responding to customers and complaining about her attitude problem. Davis then met with Geller March 7, 2017. She explained to Geller that she was the only one being subjected to this treatment and was very upset and crying when she met with Geller in March 2014. [Pl. Aff. at ¶ ¶27, 31] [Ex. 2, 9:14, 27:15-31:19 Notwithstanding this tangible evidence of disparate treatment, Geller did not believe that this was a racial discrimination complaint although Plaintiff stated that she was being singled out and she was the only one being treated this way. [Ex. 236:16 to 38:12], Also and although Davis was emotionally crying during the meeting on March 7, 2014. [Ex. 2 38:12-16] Plaintiff waited for a response and for her stress under Dwyer to be dealt with and/or alleviated, so she could continue to be a top producer. However, nothing was done for her. Plaintiff by the end of March 2014 had become an emotional wreck and so on her last day working before going out on Temporary Disability, sent an email to Geller again, March 31, 2014. She went out on disability due to the stress she was being placed under by Dwyer. [Pl. Aff. at ¶ ¶ 36] Plaintiff came to the sad realization that Geller was not going to take her complaint seriously. Therefore, on April 1, 2014 she sent an email to Geller stating that she believed that Dwyer’s actions against her were racially motivated. [Pl. Aff. at ¶ ¶ 36] Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 7 of 33 PageID: 1227 8 Neither Allstate corporate or Allstate New Jersey has investigated and/or sustained a charge of discrimination against a supervisor since Annette Geller is NJ HR manager and not for more than ten years since Burno has been a HR manager at Corporate office in Illinois. See. Ex. 5 to att. Cert. 44:23 to 45:10] [Ex. 2 73- 74]. Plaintiff’s complaints should have triggered an investigation for discrimination of Dwyer. If not the letter of April 1, 2014 should have been perceived and received a complaint under Allstate policy for discrimination. [Ex. 6 87:20 to 90:1] Instead Geller conducted a spot check of Dwyer based upon Plaintiff’s first written. A spot check is generic investigation of the department to bolster moral, but not a discrimination complaint, this Geller stated was in response to Plaintiffs’ February 2014 complaint. [Ex. 2 36:16-38:12] This spot check was completed two weeks before plaintiff lodged her complaint against Dwyer for discrimination. [Ex. 2 36:16-38:12] [Ex. 3 54:1-4, 91-93] It was neither prompt nor thorough nor dealt with the victim and the accuser as Dwyer was not informed that Plaintiff lodged a discrimination complaint against him. [Ex. 1 78:25 to 79:11] [Ex. 2 40:2-8, 41:23 to 40: 10] Dwyer, was never investigated for that complaint. [Ex. 1 78:25 to 79:11] [ Ex 2 50, 51:16] This should have been Geller’s responsibility. As Allstate New Jersey HR department is independent from the centralize HR of other Allstate offices. [Ex. 6, 29:3 to 30:23, 31:17 to 32:12, 34:11-17] Therefore, Geller and Dressel would have had the direct responsibility for investigating and implementing prophylactic measures to stem such conduct. [Ex. 3, 23:11-18] [Ex. 6 to Att. Cert. 32:2-12] Neither Geller or Dressel called for an investigation of Dwyer based upon the discrimination complaint lodged against him by Plaintiff. [Ex. 2. 40:2-8, 50: to 51:16 Ex. 3 to At. Cert. at 24:16- 25:18] Nor did they ask for help from Allstate Central. [See Ex. 6 to Att. Cert. at 70:8-18] Neither Geller nor Dressel implemented any new training programs or trained Dwyer or other managers in Allstate’s policy regarding ant-discrimination after the complaint was lodged by Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 8 of 33 PageID: 1228 9 Plaintiff. [Ex. 2 Ex. 2. 40:2-8, 50: 51:16] Ex 3 44:2-5, 30:14 to 34:6,] A spot investigation is not a discrimination investigation. [Ex. 2 36:16 to 38:12, Ex. 6 to Att. Cert. 37:8 to 41:24] Neither Geller or Dressel recommended that Dwyer completes the Allstate diversity program on line. [Ex. 1 37:3 to 39:1]] [Ex. 2 49:7 to 50; 23, 80-81]. Nor did Allstate, Geller and/or Dressel provide Dwyer any individual instructions regarding treatment of subordinates. [Ex. 1 to Att. Cert. 106:1-7] Plaintiff due to this stress was placed out on temporary disability by her medical practitioners. [Pl. Aff. at ¶ ¶ 45-46]. Allstate to provide her benefits requested information on her status and was informed that Plaintiff was being treated for anxiety which was being brought on by her supervisor. [Pl. Aff. at ¶ ¶ 45-47] Allstate monitored Plaintiff as they requested that Plaintiff fill out the forms necessary for the accommodation. [Pl. Aff. at ¶ ¶ 45-47] Plaintiff’s medical personnel complied. [Pl. Aff. at ¶ ¶ 45-47] Plaintiff when she was cleared to return to Allstate under restrictions based upon the reason why she had gone out, requested accommodation through her counsel. Allstate did not seem to have a clearly defined HR accommodation policy based upon the LAD and the seminal case of Victor v. State. [Ex. 1 to Att. Cert. 26:6 to 27:9] Once this was brought to their corporate counsel’s attention. Allstate sent Plaintiff on a perfunctory interview. The defendant did not provide Plaintiff with any reasonable accommodation as they knew based upon the interviewing process that she did not have the requisite experience in casualty. [Pl. Aff. at ¶ ¶ 45-51] Allstate’s BDI interviewing process, had a prescreening for qualifications. [Ex. 1 to Att. Cert. 43:4-17, 45:9-23, 45_24 to 46:5] However, for appearances, without actual good faith intent, Defendant, sent her on the interview. [Pl. Aff. at ¶ ¶49] Defendants have switched other CSLs from one line to another including casualty to property before and after. [Ex., 1, Ex. 355:23 to 57:16] [[Pl. Aff. at ¶ ¶ 56] [Ex. 2 68-71] They have also to protect an employee accused of sexual harassment provided a new position for him outside his lines. [Pl. Aff. at ¶ ¶ 56] Dressel oversaw all Allstate New Jersey Claims office and could have Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 9 of 33 PageID: 1229 10 accommodated Plaintiff. Could have used other policies to bring Ms. Davis up to level for Moorestown job through Allstate’s established policies. [Ex. 3 59:17-61:21] For instance, Chris Mazza Plaintiff’s comparator was switch out of casualty to property by Dwyer. [Ex. 1, 133:4-14, 140:5 to 141:21; Ex. 3 to Att. Cert. 96:16 to 101:7, 105:22-25] [Ex. 4 to Attorney Cert. Chris Mazza was not provided the same report when he was placed as Plaintiff’s replacement when she was out on disability. [Pl. Aff. at ¶ ¶ 38-42] [Ex. 1 To Att. Cert. 152:4 to 157:2] [Ex. 4 to Att. Cert. 38:2 to 39:6] Additionally, although MAZZA was supposedly temporary. Plaintiff was removed from the organization chart when Mazza took over her department contrary to the treatment provided to others who would go out. [Pl. Aff. at ¶ ¶ 41] Chris Mazza was then moved into environment area although he had no experience. [Ex. 1] [Ex. 1 to Att. Cert. 152:22 to 153:6, 156:11 to 157:2] Dressel approved all the promotions for Chris Mazza although he was not qualified but did not approve the accommodations for Plaintiff. [Ex. 1, 133:4- 14; Ex. 2 43:7 to 44:23, 78:13-81:24]] Plaintiff continued working for Allstate under Dwyer’s supervision and continued to request an accommodation due to the anxiety and stress she experienced while working under Dwyer’s supervision. [Pl. Aff. at ¶ ¶ 50, 51] Ex. 2 42: 23-43:2. Defendant through their attorney in Chicago, and the member of the HR department, told Plaintiff that they would continue to engage in a good faith attempt to locate jobs to accommodate her. [Pl. Aff. at ¶ ¶ 52, 53] However, Defendants did not engage in any further search as Ms. Geller testified that because Davis engaged counsel they did not need to do any other search for an accommodation. [Pl. Aff. at ¶ ¶ 55] [Ex. 2 57, 58, 60, 62-64] Neither did Defendants remove Plaintiff from Dwyer’s supervision for another eighteen months after she returned to the employment of Allstate after being out on disability. [Pl. Aff. at ¶ ¶ 53] [Ex. 1, 32:6-8, 33:3 to 35:2] [Ex. 2 42:23-42:2] Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 10 of 33 PageID: 1230 11 Instead, Darcel Lowery (HR N.J.) continued assuring Plaintiff that she would be accommodated and that they are working on it, although they had no intensions of accommodating her. [Pl. Aff. at ¶ ¶ 54] While still under Dwyer’s supervision, he continued to nit-picked Plaintiff and scrutinize her more closely. [Pl. Aff. at ¶ ¶ 51] Dwyer although Plaintiff had no performance issues asked Dressel if he should report that she did in an email before Plaintiff returned to the job while on disability. [ Ex. 2, to Att. Cert. at 91, 63:19-72:16, Ex. 10 to Att. Cert] He called Plaintiff’s complaint “background noise.” [See Ex. 10 to Att. Cert.] Dwyer was provided no additional instruction when Plaintiff returned to his supervision after being out and not accommodate [Ex. 1 to Att. Cert. 106 :1-7, 150 2 to 151:18] [Ex. 251:31-51:23, 82, 40:2-8] Plaintiff was provided more 14-day reports than the other two CSLs in her department and Chris Mazza who replaced her when she was out was not. [Pl. Aff. at ¶ ¶ 37-43] Chris Mazza had more performance issues when he was in Plaintiff’s department than plaintiff had however Jeff did not check his numbers to determine his level of performance. [Ex. 1 to Att Cert. 153:7 to 156:7]. Dwyer load balanced his department and added to Plaintiff’s work load contrary to other similarly situated RSL who would wait for the Controller to assign extra work. [Ex. 1] [Pl. Aff. at ¶ ¶ 7] Dwyer used a criterion to judge Plaintiff’s performance that was not used as the procedures for evaluating CSL’s by Allstate said clearly that this criterion should not be used, used Water FNOL and Voice contrary to Allstate’s policy for such evaluations. [Pl. Aff. at ¶ ¶ 7] [Ex. 1 to Att. Cert. 64:4-7, 79:17 to 82:14, 87:13 to 90:13, 92:11-13, 95 to105:21] Allstate New Jersey and has no separate distinct antidiscrimination policy from Allstate corporate. [Ex. 6 26:4-16, 34:18 to 35:1,] [Ex. 2, 44:12-45:16, 51-541. Allstate 30B (6) witness testified that Allstate Corporate’s policy investigative procedure is different than what was followed by Allstate New Jersey. [Ex. 6 34:11-17, 29:3 to 30:23] Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 11 of 33 PageID: 1231 12 Geller testified both policy the same as all complaints handled through Central office including Ms. Davis’. [Ex. 2 to Att. Cert. 51-56] Defendant’ failure to accommodate Plaintiff led to her delay rehabilitation and increased her emotional issues. [Ex. 10 to Att. Cert.] Date: January 8, 2018 Respectfully Submitted By Sterling Law Firm /s/ Yvette Sterling By: Yvette Sterling III SUPPORTING LAW A. STANDARD For SUMMARY JUDGMENT. A motion for summary judgment shall be granted if there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Boyle v. County of Allegheny, Pa., 139 F. 3d 386, 393 (3d Cir. 1998); Fed. R. Civ. P. 56 (c). “All facts and inferences are construed in the light most favorable to the non-moving party.” Boyle, 139 F. 3d at 393. At summary judgment, “a court may not weigh the evidence or make credibility determinations; these tasks are left to the fact-finder.” An issue is “genuine” if the evidence is such that a reasonable jury could return a verdict for the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A factual dispute is “material” if it could be said to affect the outcome of the case under governing law. Id. The moving party bears the initial burden of “showing’ that is, pointing out to the district court- that there is an absence of evidence to support the nonmoving party’s case.” Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). In order to successfully oppose a properly supported motion, the nonmoving party must “go beyond the pleadings and by her own affidavits, or by the ‘depositions, Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 12 of 33 PageID: 1232 13 answers to interrogatories, and admissions on file,’ designate ‘specific facts showing that there is a genuine issue for trial.” Id. at 325 (quoting Fed. R. Civ. P. 56 (e)). In reviewing the summary judgment record, “a court must view the facts in the light most favorable to the nonmoving party and draw all inferences in that party’s favor.” Armbruster v. Unisys Corp., 32 F. 3d 768, 777 (3d Cir. 1994). The court may not make credibility determinations or weigh the evidence in reaching its conclusion. See, Anderson, 477 U.S at 255 (observing that these are jury instructions). Plaintiff in this motion has made an affirmative showing that none of the substantive material facts presented by the Plaintiffs could be construed as creating an issue of material fact. These undisputed material facts show that even if the burden shifts to the defendants they will be unable to produce evidence that an affirmative defense of genuine issues of material fact exist which can preclude the granting of summary disposition on these issues in this case. Allen v. Verizon Pa., Inc., 418 F. Supp. 2d 617, 621, 2005 U.S. Dist. LEXIS 35690, *8-9 B. PLAINTIFF’S EVIDENCE ESTABLISHES A PRIMA FACIE CASE OF DISCRIMINATION Plaintiff undisputed facts show that she can prove a prima facie case of discrimination and that all if any of the legitimate business reason provide by Defendants are pretextual. The standard for establishing a hostile work environment claim under the LAD was set forth by the New Jersey Supreme Court in Lehmann v. Toys 'R' Us, Inc., 132 N.J. 587, 626 A.2d 445 (N.J. 1993). The Lehman court held that to succeed with such a claim, a plaintiff must establish four elements: "The complained-of conduct (1) would not have occurred but for the employee's gender; and it was (2) severe or pervasive enough to make a (3) reasonable [person] believe that (4) the conditions of employment are altered, and the working environment is hostile or abusive." Id. at 453. Only the second element--severe or pervasive harassing conduct--is raised in Defendants' motion. In analyzing this element of a harassment claim, the Court must consider only the severity or Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 13 of 33 PageID: 1233 14 pervasiveness of the harassing conduct, and not its effects on the plaintiff or the work environment. Id. at 455 (citing Ellison v. Brady, 924 F.2d 872, 878 (9th Cir. 1991)). Furthermore, HN20 the court is to consider all the circumstances surrounding the alleged harassing conduct: isolated incidents of harassment that, individually, do not create a hostile work environment may nonetheless establish a hostile work environment when considered collectively. Lehmann, 626 A.2d at 455. DePiano v. Atl. County, 2005 U.S. Dist. LEXIS 20250, *23-25, 2005 WL 2143972 To prevail on discrimination the plaintiff must present a prima facie case by a preponderance of the evidence. Sarullo v. U.S. Postal Service, 352 F.3d 789, 797 (3d Cir. 2003). To establish a prima face case, the plaintiff must show "(1) membership in a protected group; (2) qualification for the job in question; (3) an adverse employment action; and (4) circumstances that support an inference of discrimination." Swierkiewicz v. Sorema N.A., 534 U.S. 506, 510 (2002); see also Goosby, 228 F.3d at 318-19 (holding that to establish a prima face case, the plaintiff must show he was "(1) a member of the protected class, (2) qualified for the position [he] sought, and (3) nonmembers of the protected class were treated more favorably.").[fn2] The prima facie case test "remains flexible and must be tailored to fit the specific context in which it is applied." Sarullo, 352 F.3d at 797-98. "The central focus of the prima facie case is always whether the employer is treating some people less favorably than others because of their race, color, religion, sex, or national origin." Id. at 798 If no direct evidence, and we argue that this evidence is quite substantial, then the shifting analysis to prove circumstantial discrimination based upon the shifting burden analysis is the current law based upon McDonnell Douglas v. Green, 411 U.S. 792, 802, 93 S. Ct. 1817. Accordingly, the standard is not one of rigidity. The central focus of the inquiry in a case as this is always “whether the employer is treating some people less favorably than others because of their race, color, religion, age, sex or national origin.” Board of Teamsters v. United Sates 4311, U.S 324, 335 n. 15 (1977). (An employee may be able to show that his race or another characteristic that the law places off limits Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 14 of 33 PageID: 1234 15 tip the scales against him, without regard for the demographics characteristic of his replacement”) Pivirotti, at (quoting Carson v. Bethlehem Steel Corp., 82 F.3d. 157. 158-159 (7th Cir. 1996)). Plaintiff was treated less favorably than a white young male, who was promoted without going through the rigors of an interview process, and was not checked for the requisite experience. That person was used as her replacement, when she was out on disability, without being evaluated as to whether he was doing a good job in that position, was not provided the same reports she was provided under the guise that he was needed in another area. Although his figures were below par, there was no checks or balances by Dwyer on his performance instead that person was promoted to another position. None of the other white CSL were provided the same reports or treated like Plaintiff. Therefore, plaintiff can establish her prima facie case by a preponderance of the evidence under the LAD, Title VII, that she was treated detrimentally different. The issue is that Dwyer treated the white CSL employees more favorably than plaintiff. See Jones v. School Dist. of Phila., 198 F.3d 403, 414 (3d Cir. 1999). The issue is whether discriminatory animus motivated his actions, See Fuentes v. Perskie, 32 F.3d 759, 765 (3d Cir. 1994). Plaintiff has offered evidence that gives rise to an inference of discrimination based on race. C. DEFENDANTS ADMITTED THAT THEIR PROFERRED REASON FOR THEIR ACTIONS ARE PRETEXTUAL SO NO DISPUTED FACTS “Plaintiff brings three claims under the ADAA: (1) failure to accommodate ("Claim 1"); (2) disparate treatment (i.e. discriminatory termination on the basis of a disability) ("Claim 2"); and (3) retaliation for requesting a reasonable accommodation ("Claim 3"). HN9 Plaintiff's failure to accommodate claim (Claim 1) is the only claim that is not analyzed pursuant to the burden-shifting framework announced in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S. Ct. 1817, 36 L. Ed. 2d 668 (1973). See Shaner v. Synthes, 204 F.3d 494, 500 (3d Cir. 2000). Palish v. K&K RX Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 15 of 33 PageID: 1235 16 Servs. , L.P. 2014 U. S. Dist. LEXIS 80606, *14, 30 Am. Disabilities Cas. (BNA) 241, 2014 WL 2692489 (E.D. Pa. June 12, 2014) The other issue in this case is whether the defendants’ business reason argument which is part of the McDonnel Douglas v. Green framework of analysis of discrimination case is real or pre- textual. See Palish, The McDonnell Douglas/Burdine analysis, which proceeds in three stages, establishes the allocation and ordering for the burdens of production and proof in discrimination cases. Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 142, 147 L. Ed. 2d 105, 120 S. Ct. 2097 (2000) (quoting St. Mary's Honor Ctr. v. Hicks, 509 U.S. 502, 506, 125 L. Ed. 2d 407, 113 S. Ct. 2742 (1993)). First, a plaintiff must establish a prima facie case of discrimination. Reeves, 530 U.S. at 142; Bergen Commer. Bank v. Sisler, 157 N.J. 188, 723 A.2d 944, 954-55 (N.J. 1999). A rebuttable presumption of unlawful discrimination arises if a plaintiff establishes this prima facie case. Sisler, 723 A.2d at 955 (citing Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 253, 67 L. Ed. 2d 207, 101 S. Ct. 1089). Next, to rebut this presumption of unlawful discrimination, the employer must present admissible [*28] evidence of a legitimate, nondiscriminatory reason for its employment action. Reeves, 530 U.S. at 142; Sisler, 723 A.2d at 955 (citing Burdine, 450 U.S. at 254) DePiano v. Atl. County, 2005 U.S. Dist. LEXIS 20250, *27-28, 2005 WL 2143972 If the defendant produces evidence of a legitimate non-discriminatory reason for its action, then the presumption vanishes. Sisler, at 723 A.2d at 955 (citing St. Mary's Honor Ctr., 509 U.S. at 507- 08). At that point the plaintiff must prove, by a preponderance of the evidence, that the legitimate reason offered by the defendant was not its true reason, but was actually a pretext for discrimination. Sisler, 723 A.2d at 955; see also Burdine, 450 U.S. at 252-53. This can be done directly by demonstrating that a different, identifiable reason more likely motivated the employer, Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 16 of 33 PageID: 1236 17 or indirectly by demonstrating that the reason articulated by the employer is not credible. Reeves, 530 U.S. at 143; Sisler, 723 A.2d at 955. Despite the intermediate shifting of evidentiary burdens within this framework, the ultimate burden of persuading the fact finder that the defendant engaged [*29] in unlawful discrimination remains with the plaintiff. Id. at 955; Reeves, 530 U.S. at 143; Burdine, 450 U.S. at 253. For a claim of discrimination based on disparate disciplinary action, courts must compare the discipline levied against the plaintiff to that against similarly situated employees outside of the plaintiff's protected class. See Jason v. Showboat Hotel & Casino, 329 N.J. Super. 295, 747 A.2d 802, HN26 There is no rigid formula for comparing similarly situated employees, but the New Jersey Supreme Court and the Third Circuit have set forth the general parameters. A plaintiff is similarly situated with another employee if he and the employee have the same qualifications and are working in the same job category. Peper v. Princeton Univ. Bd. of Trustees, 77 N.J. 55, 389 A.2d 465, 480 (N.J. 1978). Experience and the quality of work performed are relevant considerations, regarding qualifications. Same job category means that the plaintiff must have been in the same "promotional stream," with similar responsibilities. This is not an exhausted list. See Peper: "The trial judge will have to make a sensitive appraisal in each case to determine the most relevant criteria." Id. Along that line of reasoning, the Third Circuit has explained that the proper focus is on the employer's stated criterion or reason for taking its action against or in support of the employee’ action. In other words, the Court must take the employer's stated reason for making its employment decision and then apply that stated reason to the supposedly similarly situated employee who was treated favorably. See Simpson v. Kay Jewelers, Div. of Sterling, Inc., 142 F.3d 639, 647 (3d Cir. 1998) ("In determining whether similarly situated nonmembers of a protected class were treated more favorably than a member of the protected class, the focus is on the Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 17 of 33 PageID: 1237 18 particular criteria or qualifications identified by the employer as the reason for the adverse action."). DePiano v. Atl. County, 2005 U.S. Dist. LEXIS 20250, *28-30, 2005 WL 2143972 The evidence is clear that Davis, was provided the 14-day report to Plaintiff to aid her not because she was having performance issues. However, when Chris Mazza assumed her position and was having issues and could have used those reports provided he was not provided those reports. However, when Bob Lehman was questioned he stated that he was in charge of environmental and Chris Mazza was not one of his subordinates. He also stated that he did not remember giving the report to Chris Mazza. Plaintiff was provided extra work through Load balancing contrary to other similarly situated, CSL. Plaintiff knew, and Dwyer knew that this would affect Plaintiff’s fast track numbers and rating. The defendants’ 30 B (6) witness stated that this is contrary to how other RSL conduct themselves. Also, Dwyer did not request extra work from other departments for his other CSLs just for Plaintiff. The FNOL water servicing was for an entire department. However, it was assigned only to Plaintiff in early 2014. This was contrary to the way it was handled previously, and the procedure used by other departments. Additionally, when Plaintiff returned it was as it should have been rolled out to all departments under Dwyer’s control. The he evaluations and the criterion used to evaluate Plaintiff was different, and were outside even Allstate’s policy. Additionally, Chris Mazza and others were allowed to move to other lines. This was the excuse used to prevent Plaintiff form being accommodated. Mazza was blatantly moved during the time they were advising Plaintiff that she cannot. Allstate’ acts with impunity and this is the issue that we as a country is facing. The law firms and the law allow companies and industries to put in place laws to prevent discrimination, but they are not properly implemented or adhered to and this Allstate did even when faced with lawsuits. This must stop somewhere. Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 18 of 33 PageID: 1238 19 Mazza, was promoted from Casualty to property without CSL experience in Property. The pretext was that he had some experience as an adjuster, but Plaintiff had none. However, Allstate had a policy pf training new CSL and they also had a policy of shadowing new CSL this was not offered to Plaintiff. Additionally, Mazza was then shifted to run the environment department. He had no experience in environment he was not asked to interview he was just given the job. See. The other white male who was accused of sexual harassment was relocated to another area, and was not provided the same roadblocks as Plaintiff. Accordingly, only Plaintiff had to go through these issues. D. PLAINTIFF UNDISPUTED FACTS SHOW THAT SHE CARRIES HER BURDEN OF PROVING THAT DEFENDANTS DID NOT ACCOMMODATE HER. 1995). The part of the LAD that prohibits Discrimination on the basis of a disability is generally interpreted in a manner consistent with the ADA. See Clowes v. Terminix Int'l, 109 N.J. 575, 538 A.2d 794, 805 (N.J. 1988) (applying Title VII burden-shifting framework to a claim under the LAD of discrimination on the basis of a handicap); Bosshard v. Hackensack Univ. Med. Ctr., 345 N.J. Super. 78, 783 A.2d 731, 737-38 (N.J. Super. App. Div. 2001) (citing Grigoletti v. Ortho Pharmaceutical Corp., 118 N.J. 89, 903, 906-07570 A.2d (N.J. 1990)). However the LAD is a broader read and applied statute and offers greater protections in its determining whether one is handicapped or, now, disabled. 3 See Clowes, 538 A.2d at 804 ("The statutory definition of 'handicapped,' . . . is very broad in its scope."); Viscik v. Fowler Equip. Co., 173 N.J. 1, 800 A.2d 826, 835 (N.J. 2002). A condition not recognized as a disability under federal law has sometimes been deemed a handicap, or a disability, under the LAD. See Failla v. City of Passaic, 146 F.3d 149, 153-54 (3d Cir. 1998) (finding no inconsistency in jury verdict that found plaintiff was not "disabled" under the ADA but still "handicapped" under the LAD; The most Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 19 of 33 PageID: 1239 20 important difference between the New Jersey statute and the federal statute is that the LAD does not require that the plaintiff's ailment limit a substantial major life activity. Failla, 146 F.3d at 155; Olson v. General Elec. Astrospace, 966 F. Supp. 312, 314-15 (D.N.J. 1997); Enriquez, 777 A.2d at 375. Her plaintiff was given restrictions based upon her being out on TDY due to the treatment she received from Dwyer and was returned with restrictions. Defendants under the ADA engaged in unlawful discrimination because it did not make reasonable accommodation available to Plaintiff. Under the ADA, an employer engages in unlawful discrimination by "not making reasonable accommodation to the known physical or mental limitations of an otherwise qualified individual with a disability who is an applicant or employee, unless [the employer] can demonstrate that the accommodation would impose an undue hardship on the operation of the business of such covered entity." 42 U.S.C. § 12112(b)(5)(A). Defendants made a mockery of the process when they sent Plaintiff to a job that they knew she was unqualified for, and promised to locate other jobs for her in good faith and did not attempt to do so. There are no set procedures or one method of accommodating and employee. An accommodation under the ADA may include "job restructuring, part-time or modified work schedules, reassignment to a vacant position, acquisition or modification of equipment or devices, appropriate adjustment or modifications of examinations, training materials or policies, the provision of qualified readers or interpreters, and other similar accommodation for individuals with disabilities." 42 U.S.C. § 12111(9)(B). Accommodation is more than an employer attempting one act and then leaving the employee at its mercy when it would not have created a hardship to accommodate her, "it is plain enough what accommodations means. The employer must be willing to consider making changes in its ordinary work rules, facilities, terms, and conditions in order to enable a disabled individual to work." Vande Zande v. State of Wisconsin Dep't of Admin., 44 F.3d Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 20 of 33 PageID: 1240 21 538, 543 (7th Cir. 1996). "The question of whether a proposed accommodations is reasonable is a question of fact." Williams v. Philadelphia Housing Auth., 380 F.3d 751, 771 (3d Cir. 2004). Under the LAD there are two distinct categories of failure to accommodate, “is one of two distinct categories of disability discrimination claims ... the other being disparate treatment discrimination." Victor v. State, 401 N.J. Super. 596, 952 A.2d 493, 501 (N.J. Super. Ct. App. Div. 2008). Under the NLJAD, an employer must "make a reasonable accommodations to the limitations of an employee or applicant who is a person with a disability, unless [*30] the employer can demonstrate that the accommodations would impose an undue hardship." N.J. Admin. Code tit. 13, § 13—2.5; see also Soules v. Mt. Holiness Mem'l Park, 354 N.J. Super. 569, 808 A.2d 863, 867 (N.J. Super Ct. App. Div. 2002); Barboza v. Greater Media Newspapers, 2008 U.S. Dist. LEXIS 55716, 2008 WL 2875317, at *2 (D.N.J. July 22, 2008) In this instant, Plaintiff can prove that the employer did not truly intent to accommodate her. Instead the employer sent her back under the direct supervisor, the person that caused her to be emotionally distraught and instead of providing her training which they could have to take on the obligation of the CSL position in Mooretown stated that she was unqualified. Mr. Dressel stated that the qualifications are always a part of the interviewing process, Plaintiff had been employed buy Allstate for more than 26 years. Allstate knew what her qualifications were. The job was to accommodate her. Allstate then after she interviews states that she is not qualified for the position she has no experience. However, Allstate has a policy to train first time CSL, they also had a policy of requiring an established SCL working closely with trainees. They however did not offer plaintiff another position or try to train her to fit this position. This also present a case of disparate treatment. Chris Mazza was allowed to cross lines as the y defendants knew he did not have the experience. However, he was transferred for casualty op Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 21 of 33 PageID: 1241 22 property by Jeff Dwyer with the acquiescence of Dan Dressel. The defendant also created position for a sexual harasser, who was accused and instead of allowing him to interact with the employee another position was create for him. This was not done for Plaintiff. E. PLAINTIFF EVIDENCE PROVES THAT THE DEFENDANT DID NOT ENGAGE IN THE INTERACTIVE PROCESS Additionally, both the ADA and the LAD requires that the parties engage in an interactive process to find a reasonable accommodation. See, e.g., Taylor, 184 F.3d at 317. This means they must make a good-faith effort to seek accommodations. Id. In this process, "the employer must make every effort to determine the appropriate accommodations." 29 C.F.R. pt. 1630, app. The Third Circuit Court of Appeals has stated it is the employer's duty to help the disabled employee devise accommodations. See, e.g., Williams, 380 F.3d at 772. Further, it is the employer's responsibility to gather needed information: "Once the employer knows of the disability and the employee's desire for accommodations, it makes sense to place the burden on the employer to request additional information that the employer believes it needs." Taylor, 184 F.3d at 315. When a requested accommodation is not succeeding or is not possible, an employer has a duty to explore further arrangements to reasonably accommodations the employee's disability. Id.; Humphrey v. Memorial Hospital Ass'n, 239 F.3d 1128, 1138 (9th Cir. 2001). [**15] If an employee has made a facial showing that a requested accommodations is possible, "the defendant then bears the burden of proving, as an affirmative defense, that the accommodations requested by the Plaintiff [is] unreasonable or would cause an undue hardship on the employer." Gaul v. Lucent Technologies, Inc., 134 F.3d 576, 580-81 (3d Cir. 1998); 42 U.S.C. § 12112(b)(5)(A). Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 22 of 33 PageID: 1242 23 An employer who fails to engage in the interactive process as a matter of law violates the ADA, if it rejects and offers no alternatives. Plaintiff asked for Moorestown and she was interviewed, Allstate by letter assured her that they would in good faith locate other accommodations for her. However, they did not Geller stated that because Plaintiff engage counsel she did not believe that she should any longer accommodate her. The employer failure to engage in the interactive process once it is aware of that the initial arrangement was not effective constitutes and offers no alternatives violates the mandatory interactive process. See Barnett, 228 F.3d at 1116- 17. Barnett v. U.S. Air, 228 F.3d 1105, 1114 (9th Cir. 2000) Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1137, 2001 U.S. App. LEXIS 2099, *28, 11 Am. Disabilities Cas. (BNA) 765, 2001 Cal. Daily Op. Service 1295, 2001 Daily Journal DAR 1631 The Court has held that the duty the duty to accommodate "is a 'continuing' duty that is 'not exhausted by one effort.' “. McAlindin v. County of San Diego, [*1134] 192 F.3d 1226, 1232 at 1237, cert. denied, 120 S. Ct. 2689 (2000). (9th Cir.), The EEOC Enforcement Guidance notes that "an employer must consider each [**29] request for reasonable accommodation," and that "if a reasonable accommodation turns out to be ineffective and the employee with a disability remains unable to perform an essential function, the employer must consider whether there would be an alternative reasonable accommodation that would not pose an undue hardship." EEOC Enforcement Guidance on Reasonable Accommodation, at 7625. Thus, the employer's obligation to engage in the interactive process extends beyond the first attempt at accommodation and continues when the employee asks for a different accommodation or where the employer is aware that the initial accommodation is failing, and further accommodation is needed. Humphrey v. Mem'l Hosps. Ass'n, 239 F.3d 1128, 1138, 2001 U.S. App. LEXIS 2099, *28-29, 11 Am. Disabilities Cas. (BNA) 765, 2001 Cal. Daily Op. Service 1295, 2001 Daily Journal DAR 1631 Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 23 of 33 PageID: 1243 24 F. DEFENDANTS FAILED TO IMPLEMENT ANY REMEDIAL MEASURES OR PROMPTLY INVESTIGATE PLAINTIFF’S COMPLAINT THEREFORE LIABLE In this case Plaintiff allege that her supervisor discriminated a disparately treated her in violation of the LAD. The facts show that she complained about his conduct and by April 1, 2014 identified that she believed it was racially motivated. The facts show that the defendants did not other investigation after she complained about discrimination of her supervisor. The Defendants testified they did a spot check before plaintiffs April 1, 2014 complaint. The spot check is not discrimination investigation. The failure to implement prophylactic measures provided no defenses and instead makes Allstate vicariously liable. See, Faragher; and Burlington Industries, Inc. v. Ellerth, 524 U.S. 742, 141 L. Ed. 2d 633, 118 S. Ct. 2257 (1998). Within this framework, an employer is, as a general rule, "subject to vicarious liability to a victimized employee for an actionable hostile work environment created by a supervisor with immediate (or successively higher) authority over the employee." Faragher, 524 U.S. at 807; Ellerth, 524 U.S. at 765; Cardenas, 269 F.3d at 260; see also [*429] Hightower v. Roman, Inc., 190 F. Supp.2d 740, 751 (D.N.J. 2002) (Brotman, J.); Koschkoff v. Henderson, 109 F. Supp.2d 332, 349 (E.D.Pa. 2000) (observing that "where a hostile work environment is created by an immediate or successively higher supervisor, a prima facie case of vicarious liability by the employer exists per se."). Allstate cannot make use of the defenses created by Faragher and Ellerth as they did not engage in any remedial measures, did not provide any additional training and did not in any way ask Ms. Davis to interact with Allstate as they washed their hands of her once she engaged counsel and did not attempt to accommodate her or take her complaint of discrimination seriously. Instead they promoted Dwyer. Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 24 of 33 PageID: 1244 25 Direct economic harm is not the only evidence of a tangible employment action. Once the employer engages in a tangible employment action, then they cannot make use of the defenses offered by the Faragher and Ellerth cases. However, while "direct economic harm is an important indicator of a tangible adverse employment action, it is not the sine qua non. If an employer's act substantially decreases an employee's earning potential and causes significant disruption in his or her working conditions, a tangible adverse employment action may be found." Durham Life Ins., 166 F.3d at 153; see, e.g., Reynolds v. USX Corporation, 56 Fed. Appx. 80, 2003 WL 146367 at *2 (characterizing a "disciplinary suspension" as a tangible adverse employment action under Title VII). G. ALLSTATE DID NOT HAVE IN PLACE A WELL PUBLICIZED AND ENFORCE ANTI HARASSMENT AND RETALIATION POLICY Allstate can be held liable due to its failure to effectively implement any real remedial measures, such as a well-publicized and enforced anti-discrimination, harassment policy and it failure in implement, effective formal and informal complaint procedures, training, and/or monitoring mechanisms." Lehmann, 132 N.J. at 621; Mancuso v. City of Atlantic City, 193 F. Supp. 2d 789, 807 n. 9; Velez v. City of Jersey City, 358 N.J. Super. 224, 817 A.2d 409, 2003 WL 942719 (N.J.Super.A.D. 2003); see also Lehmann, at 619 . It is foreseeable that this conduct will occur in the workplace, that is why the N.J. Supreme Court in Lehman stated that the "the absence of effective preventative mechanisms will present strong evidence of an employer's negligence"). "Effective preventative mechanisms," the New Jersey Supreme Court has observed, generally consist of four basic components: (1) formal policies which explicitly prohibit workplace harassment; (2) formal and informal complaint structures and procedures for promptly and thoroughly investigating and remediating claims; (3) training which is mandatory for supervisors and managers and made available to all other employees; and (4) some effective "sensing or monitoring mechanisms, to find out if the policies and complaint structures are trusted." Lehmann, Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 25 of 33 PageID: 1245 26 132 N.J. at 621 (citations omitted) (discussing the Restatement's exception for employer’s “negligence"). Courts have also required that an employer demonstrate that it took affirmative steps to educate its employee about its policies and procedures. See, e.g., Mancuso, 193 F. Supp.2d at 802. Thus, the mere presence of anti-harassment policies and internal complaint procedures does not, by itself, conclusively demonstrate the absence of negligence on the part of the employer. See Gaines, 173 N.J. at 314 (citing Lehmann, 132 N.J. at 621-22); see also Newsome v. Administrative Office of the Courts, 103 F. Supp.2d 807, 822 (D.N.J. 2000) (Greenaway, J.) (observing that the "mere implementation and dissemination of anti-harassment" policies and procedures "does not, as a matter of law, prevent the imposition of employer liability under a negligence theory."); Velez, 358 N.J. Super. 224, 2003 WL 942719 at *6 (citing Gaines for the proposition that "the existence of a sexual harassment policy alone is insufficient [**93] to establish [an] affirmative defense to vicarious liability [under the NJLAD] in a hostile work environment claim."). Rather, as the New Jersey Supreme Court has repeatedly stressed, there must be evidence that those policies and procedures have been implemented in such a way as to reflect an "unequivocal commitment from the top management that [the employer's stated intolerance for workplace harassment] is not just words, but backed up by consistent practice." Lehmann, 132 N.J. at 621; Gaines, 173 N.J. at 319. H. PLAINTIFF’S EVIDENCE ESTABLISHES PLAINTIFF’S RETALIATION CLAIM Under N.J.S.A. 10:5-12(d), it is unlawful, for any person to retaliate against any person because that person has opposed any practices or acts forbidden under this act or because that person has filed a complaint… N.J.S.A. 10:5-12(d) To establish a prima facie case of retaliation, plaintiff must show that 1) she was engaged in a protected activity known to the defendant; 2) she was thereafter subjected to an adverse employment decision by the defendant; and 3) there was a causal link between the two. Romano v. Brown & Williamson Tobacco Corp., 284 N.J. Super. 543, Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 26 of 33 PageID: 1246 27 548-49, 665 A.2d 1139 (App.Div. 1995). If plaintiff establishes a prima facie case, the burden of production (but not the burden of persuasion) shifts to defendant to provide a legitimate reason for the decision. Id. at 549, 551. Plaintiff must then show that a retaliatory intent, not the proffered reason, motivated defendant's actions. Id. at 551, 665 A.2d 1139. Plaintiff may do this either indirectly, by proving that the proffered reason is a pretext for the retaliation, or directly, by demonstrating that a retaliatory reason more likely than not motivated defendant's action. Woods- Pirozzi v. Nabisco Foods, 290 N.J. Super. 252, 266-268, 675 A.2d 684 (1996). Also, the New Jersey Appeals Court recently clarified the law as it relates to discrimination based upon the US Supreme Court’s ruling in Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 126 S. Ct. 2405, 165 L. Ed. 2d 345 (2006). The Court opined “the United States Supreme Court clarified what plaintiffs must demonstrate to prove retaliation claims under Title VII. The Court determined "that the anti- retaliation provision [of Title VII] . . . is not limited to discriminatory actions that affect the terms and conditions of employment." Id. at 64, 126 S. Ct. at 2412-13, 165 L. Ed. 2d at 357. Rather, "the scope of the anti-retaliation provision [of Title VII] extends beyond workplace-related or employment-related retaliatory acts and harm." Id. at 67, 126 S. Ct. at 2414, 165 L. Ed. 2d at 359. The Court makes it clear that the anti-retaliation clause covers and prohibits any reprisals against any person because that person has opposed any practices or acts forbidden under [the LAD] . . . or to coerce, intimidate, threaten or interfere with any person in the exercise or enjoyment of, or on account of that person having aided or encouraged any other person in the exercise or enjoyment of, any right granted or protected by [the LAD]. [N.J.S.A. 10:5-12(d) (emphasis added).]” Gerety v. Atl. City Hilton Casino Resort, 184 N.J. 391, 409 (2005). ROA v. ROA, A- 2588-06T3 (N.J. Super. 7-7-2008) In this instance, Geller admitted in deposition that after Plaintiff retained counsel she did not have to and made no attempts to an accommodate her. Although Lowery in her department kept Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 27 of 33 PageID: 1247 28 assuring Plaintiff that they would accommodate her. She also assured Plaintiff that she was discussing this accommodation with Geller. They knew that Plaintiff experienced anxiety and had severe stress form the supervision of Dwyer. However, neither Dressel, nor Geller thought it within Plaintiff’s civil, rights and their duty as her supervisor charged with implementing the LAD or the ADA, to remove her from Dwyer’s supervision. Instead she was placed back under the supervision of the person who had discriminated against her. They did that without advising him that he should not discriminate or retaliate against Plaintiff. They did that while disregarding Plaintiff’s rights to complain and to lodge a complaint. He continued to nit-pick and scrutinize her. If we look at his calendar for 2015, we will see that only Plaintiff’s name appears on the calendar. He tried to accuse her of acts that were done by others. I. DEFENDANTS DID NOT IMPLEMENT ANY REMEDIAL POLICIES CONTRARY TO THE DIRECTIVES SET FORTH IN THE LAD SO CANNOT SUSTAIN ANY DEFENSE AND HEIR ANSWER SHOULD BE DISMISSED The LAD was passed to effectuate important public policy of ending the victimization of and to protect those who are especially vulnerable in the workplace from the improper or unlawful exercise of authority by employers” Abbamont v. Piscataway Bd. Education, 138 N.J. 405, 418 (1994) Additionally, the Township cannot prevail on summary judgment if it has no implemented policies prohibiting discrimination or investigating discrimination under the LAD. With respect to the LAD claims against the City, the panel found sufficient facts to establish a triable issue concerning the City's[fn1] negligent failure to adequately enforce its own sexual harassment policy. Velez v. City of Jersey City 358 N.J. Super 224 236-237(2003) Id. at 236. Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 28 of 33 PageID: 1248 29 “The employer is the party with the power and responsibility, therefore strictly liable for equitable relief in the nature of restoration, back pay and the like.” Abbamont, 419 (quoting Lehman v. Toys R’. Us, 626 A.2d 448) The LAD is considered remedial legislation; therefore, it should be construed liberally to effectuate its important social goal. Abbamont, at 418, Sabella v. Lacey Township, 204 N.J. Super. 55, 59, Kellan v. Bell Communications, 289 N.J. Super 531, 541. Accordingly, with no articulated Policy the Township cannot prevail on summary judgment. Velez v. City of Jersey City, 180 N.J. 284, 288 (2004)850 A.2d 1238 The rational for promoting and/or transferring the comparators is merely to bolster the legitimate business reason for their failure to accommodate Plaintiff. The legitimate business reason which is at issue is that defendant testimony shows this was done for other employees, Plaintiff is merely requesting what Allstate treat her similarly to how they treated other employees. Defendant Dwyer loading of Plaintiff with work, and providing her with reports that were only provided to Plaintiff. Although disable she was not accommodated, while others were. There was no real desire and act of enforcement of the federal and State of New jersey LAD to prevent any of these from occurring. Allstate defendants acted with impunity and allowed Dwyer to thwart all laws and at times their written policies. Accordingly, there can be no excuse and any defenses they might have or any questions regarding Plaintiff’s case should be dismissed and Plaintiff should be allowed to win on liability in all her causes of action. IV CONCLUSION For the reasons set forth herein, Defendants respectfully request that the deadlines in the Court’s Scheduling Order be extended in accordance with the Proposed Order accompanying this Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 29 of 33 PageID: 1249 30 Motion. Also, that the defendants be compelled to produce the documents requested in the Plaintiff Second Set of Document Requests. Respectfully Submitted, STERLING LAW FIRM /s/ Yvette C. Sterling Yvette Sterling Dated January 8, 2018 Attorney or Plaintiff Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 30 of 33 PageID: 1250 Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 31 of 33 PageID: 1251 Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 32 of 33 PageID: 1252 Case 1:16-cv-01202-RMB-AMD Document 74 Filed 01/09/18 Page 33 of 33 PageID: 1253