Davis v. Allstate Insurance et al

REPLY BRIEF to Opposition to Motion

D.N.J.February 20, 2018

COZEN O’CONNOR, P.C. A Pennsylvania professional corporation By: Debra S. Friedman (NJ ID 015831992) Jason A. Cabrera (NJ ID 077342013) One Liberty Place 1650 Market Street, Suite 2800 Philadelphia, PA 19103 Direct Phone: (215) 665-3719 Direct Fax: (215) 701-2419 Attorneys for Defendants Allstate New Jersey Insurance Company, Jeffrey P. Dwyer and Daniel Dressel 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, and DOES #1-10, Defendants. : : : : : : : : : : : Civil Action No. 16-cv-01202 (RMB/AMD) Motion Date: February 27, 2018 Set By Court Order (ECF No. 88) DEFENDANTS’ REPLY BRIEF IN SUPPORT OF THEIR MOTION FOR SUMMARY JUDGMENT Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 1 of 27 PageID: 1937 i TABLE OF CONTENTS I. INTRODUCTION .............................................................................................................. 1 II. RELEVANT PROCEDURAL HISTORY ......................................................................... 2 III. REPLY ARGUMENT ........................................................................................................ 2 A. Ms. Davis’ Response to Defendants’ Statement of Facts Reveals the Lack of Merit of Her Complaint .......................................................................................... 2 B. Ms. Davis Advances Numerous Arguments without Factual or Legal Basis ......... 3 1. There is no legal or factual basis for Ms. Davis’ constructive discharge argument. .................................................................................................... 3 2. Plaintiff has no evidence of comparators being treated more favorably than her........................................................................................................ 4 3. There is no basis for Ms. Davis’ assertion that Young v. UPS changed the law or standards regarding comparators. .............................................. 4 C. Ms. Davis Does Not State a Prima Facie Case of Race or Gender Discrimination 5 1. There is no prima facie case due to a policy or custom at Allstate. ............ 5 2. Ms. Davis has no facts to support her hostile work environment claims. .. 6 3. Ms. Davis has no facts to claim that Dwyer’s actions were targeted against her because of her race or gender. .................................................. 9 4. Ms. Davis’ complaints are trivial and fail to meet the severe and pervasive standards required for hostile work environment claims. ......... 10 5. Ms. Davis’ case bears no similarity to Durham Life Insurance v. Evans. 11 D. Ms. Davis Does Not State a Prima Facie Case of Disability Discrimination ....... 12 1. Ms. Davis’ response to Defendants’ SUMF confirms her “disability” is working with Jeff Dwyer, which is not a disability under the law. .......... 12 2. Being “regarded as” disabled does not trigger accommodation requirement. .............................................................................................. 13 3. Adverse action is required for failure to accommodate NJLAD claim. ... 13 4. Allstate never told Ms. Davis that she could not obtain a position in a different department. ................................................................................. 15 Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 2 of 27 PageID: 1938 ii 5. Allstate never ignored Ms. Davis’ request for an accommodation. .......... 15 6. Allstate had no obligation to remove Mr. Dwyer as Ms. Davis’ supervisor .................................................................................................. 16 7. Ms. Davis was responsible for any breakdown in the interactive process.17 8. Ms. Davis concedes that Allstate has no obligation to grant her a new position without competition. ................................................................... 18 E. Plaintiff Did Not Attempt to Show, and Cannot Show, Pretext ........................... 19 F. Ms. Davis’ Claims for Individual Liability and Age Discrimination Fail ............ 20 G. Ms. Davis Does Not Provide Sufficient Evidence to Permit a Jury to Evaluate Her Allegations of Extreme or Outrageous Conduct. .................................................. 20 IV. CONCLUSION ................................................................................................................. 22 Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 3 of 27 PageID: 1939 iii TABLE OF AUTHORITIES Page(s) Cases Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397 (1997) ...................................................................................................................5 Berg v. County of Allegheny, 219 F.3d 261 (3d Cir. 2000).......................................................................................................5 Durham Life Insurance Co. v. Evans, 166 F.3d 139 (3d Cir. 1999)...............................................................................................11, 12 EEOC Enforcement Guidance .......................................................................................................19 EEOC v. St. Joseph’s Hospital, 842 F.3d 133[3] [11th Cir. 2016] .......................................................................................18, 19 Fronczkiewicz v. Magellan Health Services, Inc., 2014 WL 3729185 (D.N.J. July 25, 2014) ...............................................................................16 Gaul v. Lucent Techs., Inc., 134 F.3d 576 (3d Cir. 1998).....................................................................................................16 Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993) .............................................................................................................10, 11 Jones v. Se. Pa. Transp. Auth., 796 F.3d 323 (3d Cir. 2015).......................................................................................................8 Joseph v. N.J. Transit Rail Ops., Inc., 2013 WL 5676690 (D.N.J. Oct. 17, 2013).................................................................................8 Kiniropoulos v. Northampton Cty. Child Welfare Serv., 606 F. App'x 639 (3d Cir. 2015) ..............................................................................................13 Littell v. Allstate Insurance Co., 177 P.3d 1080 (N.M. Ct. App. 2007) ........................................................................................6 McKinnon v. Gonzales, 642 F. Supp. 2d 410 (D.N.J. 2009) ............................................................................................9 Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003).......................................................................................................5 Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 4 of 27 PageID: 1940 iv Ozlek v. Potter, 259 F. App’x 417 (3d Cir. 2007) .................................................................................16, 18, 19 Pa. State Police v. Suders, 542 U.S. 129 (2004) ...................................................................................................................3 Speer v. Norfolk S. Ry. Corp., 121 F. App'x 475 (3d Cir. 2005) ..............................................................................................13 Taylor v. Metzger, 152 N.J. 490 (1998) ...........................................................................................................17, 21 Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999).....................................................................................................17 Velez v. City of Jersey City, 180 N.J. 284 (2004) .................................................................................................................21 Victor v. State, 401 N.J. Super. 496 (App. Div. 2008), aff’d as modified, 203 N.J. 383 (2010)......................14 Watkins v. Nabisco Biscuit Co., 224 F. Supp. 2d 852 (D.N.J. 2002) ............................................................................................8 Wigginton v. Servidio, 324 N.J. Super. 114 (App. Div. 1999) .....................................................................................21 Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015) ...................................................................................................4, 14, 15 Statutes 42 U.S.C. § 1983 ..............................................................................................................................5 42 U.S.C. §12201(h) ......................................................................................................................13 Pregnancy Discrimination Act ...................................................................................................4, 15 Worker’s Compensation Act. .........................................................................................................20 Rules Fed. R. Civ. P. 56 .............................................................................................................................3 Local Civ. R. 56.1 (a)...............................................................................................................2, 3, 7 Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 5 of 27 PageID: 1941 Defendants Allstate New Jersey Insurance Company (“Allstate”), Jeffrey P. Dwyer (“Mr. Dwyer”), and Daniel Dressel (“Mr. Dressel”) (collectively “Defendants”), through their undersigned counsel, file this reply brief in support of their motion for summary judgment (ECF No. 65) in light of the opposition papers filed by Plaintiff Robin Davis (“Ms. Davis”) (ECF No. 84 and 89). I. INTRODUCTION Defendants filed an extensive and well-supported motion for summary judgment that describes in detail how Ms. Davis’ complaint is meritless and why Defendants are entitled to judgment in their favor as a matter of law. In opposition, Ms. Davis does not adequately address or challenge most of the arguments that Defendants advanced in their favor. In fact, a large portion of Ms. Davis’ opposition brief is identical to the text of the brief she filed in support of her own motion for summary judgment. And, much like Ms. Davis’ other filings, her opposition brief relies upon speculation and invective, fails to identify facts supported by record evidence to support her arguments, and provides citations to inapplicable cases that have no application here. In her belated response to Defendants’ Statement of Undisputed Material Facts, Ms. Davis reveals how meritless her claims really are. For example, Ms. Davis concedes that some of the treatment she alleges was discriminatorily targeted against her had, in fact, happened to many other employees that were not (allegedly) disabled or part of a racial or gender minority. When Ms. Davis does assert denials or opposition to Defendants’ facts, she often does not cite to any evidence or cites only to speculation or an incomprehensible stream-of-consciousness soliloquy. Ms. Davis’ opposition papers do not provide any basis for this Court to identify a disputed issue of fact that warrants a trial. If anything, Ms. Davis’ brief only provides further support for Defendants’ motion for summary judgment. Ms. Davis has no factual or legal basis to succeed on her claims, and Defendants are entitled to judgment as a matter of law. Ms. Davis’ opposition should be rejected, and Defendants’ motion for summary judgment should be granted. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 6 of 27 PageID: 1942 2 II. RELEVANT PROCEDURAL HISTORY Defendants filed a motion for summary judgment on January 8, 2018, which was supported by a brief (ECF No. 66; hereinafter “Defendants’ principal brief”), declarations, and a statement of undisputed material facts. (ECF Nos. 65-72.)1 On February 6, 2018, Ms. Davis filed a brief in opposition (ECF No. 84) (“Opp’n” or “Brief”) and additional affidavits from Ms. Davis and her attorney (ECF Nos. 84-1 to 84-5).2 Plaintiff did not respond to Defendants’ Statement of Undisputed Material Facts (ECF No. 72) (“Defendants’ SUMF”) by the original deadline, but she eventually responded to Defendants’ SUMF on February 9, 2018 (ECF No. 89), after having received the Court’s permission for the late filing. III. REPLY ARGUMENT For the reasons set forth below, the papers filed by Ms. Davis in opposition to Defendants’ motion for summary judgment contain nothing more than weak or irrelevant arguments with inadequate factual support or record evidence. Accordingly, Defendants’ motion for summary judgment should be granted. A. Ms. Davis’ Response to Defendants’ Statement of Facts Reveals the Lack of Merit of Her Complaint As an initial matter, Defendants feel obligated to highlight to the Court how Ms. Davis’ response to Defendants’ SUMF reveals the lack of merit in Ms. Davis’ Complaint. First, Ms. Davis admits more than seventy-five (75) of Defendants’ facts. Second, Ms. Davis purports to deny seven facts with only a single word (“Denied”) in response. These “denials” are 1 Defendants’ Statement of Undisputed Material Facts was filed on January 9, 2018. (ECF No. 72). 2 On February 6, 2018, Plaintiff also filed a document styled “Plaintiff’s Amended Statement of Undisputed Facts In Support of Plaintiffs’ [sic] Opposition to Defendants’ Summary Judgment Motion and Plaintiffs’ Motion for Summary Judgment.” (ECF No. 86.) This document is not provided for under this Court’s rules. Although a party opposing summary judgment is entitled to file a supplemental statement of facts if necessary to substantiate the factual basis for its opposition, L. Civ. R. 56.1(a), the rules do not provide for a party that has already filed for summary judgment to “amend” the statement of facts filed in support that motion. See id. Here Plaintiff filed for summary judgment on January 9, 2018 and submitted a Statement of Undisputed Material Facts at that time. She now seeks to disregard that document and get a second bite at the apple with an “Amended” Statement of Undisputed Facts. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 7 of 27 PageID: 1943 3 admissions. Fed. R. Civ. P. 56(c)(1) and 56(e)(2); Local Civ. R. 56.1 (a). Third, Ms. Davis had 11 other “denials” with absolutely no citations to record evidence. Similarly, these “denials” are admissions. When Ms. Davis does cite to “evidence” to support a denial, she invariably does not respond to the actual fact listed in the statement of facts, offers sheer speculation (which is not admissible on summary judgment), and/or puts forth a stream of incomprehensible stream-of- consciousness statements that do not adequately respond to Defendants’ SUMF. In short, much of Ms. Davis’ opposition to Defendants’ facts only further undercut her claims and bolster Defendants’ entitlement to summary judgment. B. Ms. Davis Advances Numerous Arguments without Factual or Legal Basis Much of Ms. Davis’ opposition brief includes assertions and arguments that have no basis in the record or in the law. An exhaustive rebuttal of each and every such assertion would not fit within the page limits and is unnecessary to evaluate Defendants’ summary judgment motion. Below are a few examples of Ms. Davis’ most extreme assertions. 1. There is no legal or factual basis for Ms. Davis’ constructive discharge argument. Ms. Davis argued that “[r]ace disparate treatment being disabled and having to go out in disability [sic] is like a constructive discharge, so an adverse act was taken against the Plaintiff employee.” Brief at 20. This argument is meritless. Constructive discharge is established by an objective inquiry, namely whether “working conditions become so intolerable that a reasonable person in the employee's position would have felt compelled to resign.” Pa. State Police v. Suders, 542 U.S. 129, 141 (2004) (citations omitted). In this case, Ms. Davis is still employed at Allstate and has not resigned. Defendants’ SUMF #2; Plaintiff’s Response #2. Therefore, Ms. Davis cannot argue that she has been “constructively discharged” from a position in which she is currently employed. Nor is there any other basis for Plaintiff to successfully demonstrate that Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 8 of 27 PageID: 1944 4 “disparate treatment,” “being disabled” and “having to go out on disability” equate to adverse actions under the law. 2. Plaintiff has no evidence of comparators being treated more favorably than her. Defendants demonstrated in their moving brief that Ms. Davis has no evidence that similarly situated comparators were treated better than her, Defendants’ principal brief at 25-26, and Ms. Davis has not offered any evidence to the contrary. Rather, Ms. Davis repeatedly cites to some 33 employees on a “list” that she provided to Allstate that purportedly shows employees being reassigned, but this list is nothing more than a red-herring. See Plaintiff’s Second Declaration, Exhibit 5. Ms. Davis has not provided any evidence of the employees’ positions and whether they held a similar level/position to her, when the employees’ moves occurred, why the moves occurred, whether the moves were voluntary or not, whether Mr. Dwyer and/or Mr. Dressel was the decisionmaker in the moves, whether the moves were to different departments and/or locations and whether the employees were outside her protected class(es). Accordingly, there is no evidentiary basis whatsoever to credit Ms. Davis’ suggestion that this list of 33 employees is evidence of disparate treatment. 3. There is no basis for Ms. Davis’ assertion that Young v. UPS changed the law or standards regarding comparators. Ms. Davis has no factual or legal basis to argue that the Supreme Court’s decision in Young v. United Parcel Service, Inc., 135 S. Ct. 1338 (2015), a Pregnancy Discrimination Act (“PDA”) case, “broadened the comparator requirements.” (Brief at 7 (citing Young, 135 S. Ct. at 1367).) The Supreme Court in Young was clear that the approach it outlined for how a plaintiff can survive summary judgment was “limited to the Pregnancy Discrimination Act context.” Id. at 1355. Ms. Davis does not have a claim under the PDA, and neither the ADA nor the LAD has the same statutory language as the PDA. Accordingly, Young is inapplicable here. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 9 of 27 PageID: 1945 5 C. Ms. Davis Does Not State a Prima Facie Case of Race or Gender Discrimination Most of the new text3 in Ms. Davis’ opposition brief appears to argue that she has established a prima facie case of race discrimination, Brief at 9-20, but her legal arguments are without merit and her factual assertions have no basis in the record. Ms. Davis does not have a prima facie case of race or gender discrimination and, accordingly, Defendant is entitled to judgment in its favor on those claims. 1. There is no prima facie case due to a policy or custom at Allstate. Ms. Davis first appears to advance an argument that has zero application to this case: the idea that Allstate could be liable for a policy or custom of deliberate indifference. Brief at 9-11 (citing Natale4 at 55 and Bd. of Cty. Comm'rs of Bryan Cty., Okl. v. Brown, 520 U.S. 397, 417- 18 (1997)); see also id. at 10 (“Plaintiff therefore has established a hostile prima facie case and a pattern of deliberate indifference that should be sent to the jury. See Berg v. County of Allegheny, 219 F.3d 261, 276 (3d Cir. 2000).”) All of these cases relate to the liability of a municipality under 42 U.S.C. § 1983. E.g., Natale v. Camden Cty. Corr. Facility, 318 F.3d 575, 584 (3d Cir. 2003) (“There are three situations where acts of a government employee may be deemed to be the result of a policy or custom of the governmental entity for whom the employee works, thereby rendering the entity liable under § 1983.”). Ms. Davis has no claim under 42 U.S.C. § 1983, and the analysis of municipal liability under a pattern-or-practice theory for Section 1983 claims has zero application to this employment discrimination case. 3 Much of the text in Ms. Davis’ opposition brief appeared in Ms. Davis’ affirmative brief in support of her own motion for summary judgment. Defendants responded to that brief already (ECF No. 81) and will not reply further to the identical text that appears again in the opposition brief. 4 This case is not identified further in the brief or included in the Table of Authorities. Based on the subject matter and the quotation, Defendants have concluded that the case referred to is Natale v. Camden County Correctional Facility, 318 F.3d 575 (3d Cir. 2003). The text quoted in Ms. Davis’ brief appears on page 584 of the court’s opinion, not page 55. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 10 of 27 PageID: 1946 6 Ms. Davis’ citation to Littell v. Allstate Insurance Co., 177 P.3d 1080 (N.M. Ct. App. 2007) also does not advance her race or gender discrimination claims. Ms. Davis needs to show that the conduct that she complains about fits into the prima facie elements for race or gender discrimination. The facts from the Littell litigation are irrelevant to her burden of proof in this case. Ms. Davis’ inclusion of the Littell case therefore is nothing more than an attempt to smear Allstate’s reputation. 2. Ms. Davis has no facts to support her hostile work environment claims. As a threshold matter, Ms. Davis does not address each of the elements for a hostile work environment claim. She identifies those elements, Brief at 11, but she does not actually address or argue that she has satisfied all of them. And, of course, Ms. Davis cannot do so because of the lack of evidence in her favor. Ms. Davis has not presented evidence—let alone the “undisputed” evidence she claims— to support her hostile work environment claims. Her failure to cite to the statement of facts or other record evidence in her passage shows that she does not have factual support for her claims. Moreover, when she attempts to provide evidence, she contradicts herself. For instance, in Paragraph 13 of Ms. Davis’ Second Affidavit (ECF No. 84-1), Ms. Davis claims that “[a]ll the while working under a hostile work environment, which included only assigning me to the, FNOL water instead of the whole department, Dwyer in –his-review –made ‘it clear that he was looking at other criteria other than her performance…” [sic]. But, in Ms. Davis’ response to Defendants’ SUMF#36, Ms. Davis “[d]enied as irrelevant fact” that FNOL reports were distributed to managers other than Ms. Davis during her leave of absence. (ECF No. 89 at #36). This “denial” is without citation to any record evidence and, instead, constitutes an admission. And, if she claims that the distribution of FNOL reports is “irrelevant,” then those same FNOL reports cannot constitute evidence in support of her prima facie case. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 11 of 27 PageID: 1947 7 Second, Ms. Davis’ response to Defendants’ SUMF directly contradicts many of the claims made in her brief. For example, Ms. Davis claims that “she alone was provided 14-day rolling reports daily and sometimes daily while others who took over her department was provided them sporadically.” Brief at 12. But Ms. Davis admitted that the 14-day reports were “designed for the entire Allstate property claim organization, not just for Ms. Davis, and that they were intended to make people more efficient,” and the reports were “new in 2014…and generally only pertained to Ms. Davis’ group.” Defendants’ SUMF at ##28 and 29 (ECF No. 72); Plaintiff’s Response to Defendants’ SUMF at ##28 and 29 (ECF No. 89). Ms. Davis thus effectively admitted that Mr. Dwyer provided the 14-day reports to other individuals outside of any Ms. Davis’ protected classes. Defendants’ SUMF at ##30-32 (Mr. Dwyer sending 14-day reports to Jennifer Donohue (“Donohue”)in February 2014; to Donohue, Bob Grimm, and Chris Mazza in June 2014; and to each of those individuals in July 2014); Plaintiff’s Response to Defendants’ SUMF at ##30-32 (nonsensical denial “as immaterial based on time”; “admitted but denied as the time frame was outside the time framework”; and “Same as above…as the heading was February 2014 time frame” 5). Ms. Davis cannot (and does not attempt to) reconcile the assertions made in her Brief with the admissions contained in her response to Defendants’ SUMF. And Ms. Davis’ response to Defendants’ SUMF shows that she was not treated differently regarding 14-day reports. Third, Ms. Davis has failed to tie any of the “facts” she alleges to the requirements of a prima facie case for a hostile work environment claim. Ms. Davis must show that the actions she 5 These statements are effectively admissions. Not only is there no citation to record evidence to support any dispute as to these facts, as required by Local Rule 56.1(a), but the commentary added by Ms. Davis is wrong. A 14-day report in February 2014 is material as February 2014 was the very timeframe that Ms. Davis was complaining about Mr. Dwyer. Ms. Davis does not include any explanation for her statement that “the time frame was outside the time framework,” which also literally does not make sense. Finally, there was no “February 2014” heading in Defendants’ SUMF. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 12 of 27 PageID: 1948 8 complains about would not have occurred but for her race or gender. Watkins v. Nabisco Biscuit Co., 224 F. Supp. 2d 852, 863 (D.N.J. 2002) (citing, inter alia, Taylor v. Metzger, 152 N.J. 490 (1998)). As Defendants’ already explained in their principal brief, “[a]n unpleasant workplace does not constitute a hostile work environment within the meaning of Title VII if the difficult conditions result from something other than discrimination based upon a characteristic or activity protected by Title VII.” Defendants’ principal brief, ECF No. 66, at 29-32 (citing McKinnon v. Gonzales, 642 F. Supp. 2d 410, 421-22 (D.N.J. 2009)). Ms. Davis has not provided evidence that could allow a factfinder to conclude by a preponderance of the evidence that the actions she complains about would not have occurred but for her race or gender. Fourth, Ms. Davis’ speculation that Defendants were “gunning” for her job, Brief at 17, is just the sort of unsupported speculation that cannot survive past summary judgment. “The non- moving party must offer specific facts that establish a genuine issue of material fact; the non- moving party may not simply rely on unsupported assumptions, bare allegations, or speculation.” Joseph v. N.J. Transit Rail Ops., Inc., 2013 WL 5676690 (D.N.J. Oct. 17, 2013) (citations omitted). Fifth and finally, none of actions Ms. Davis alleges are severe enough to constitute an adverse action or hostile work environment as a matter of law. The receipt of reports does not and did not alter the terms and conditions of Ms. Davis’ employment. Nor did any of the other alleged actions that Ms. Davis purports to complain about have any effect on her pay, compensation, or other terms and conditions of her employment —such as her “authority” being “undermined,” being removed from one organizational chart while she was on leave, Dwyer’s manner of scheduling meetings with her team, Dwyer’s evaluation of her performance using voice results “not allowed by Allstate’s handbook,” or any of the various statements allegedly made by Dwyer. Brief at 12 and 17-18. See, e.g., Jones v. Se. Pa. Transp. Auth., 796 F.3d 323, Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 13 of 27 PageID: 1949 9 326 (3d Cir. 2015) (adverse employment action must be “serious and tangible enough to alter an employee’s compensation, terms, conditions, or privileges of employment”); McKinnon v. Gonzales, 642 F. Supp. 2d 410, 423 (D.N.J. 2009) (“it is well-settled that being closely supervised or watched does not constitute an adverse employment action that can support a claim under Title VII”). 3. Ms. Davis has no facts to claim that Dwyer’s actions were targeted against her because of her race or gender. Ms. Davis asserts that “Defendants’ rational [sic] for Dwyer’s behavior is that he was just mean to everyone” and then claims, erroneously and without citation, that the rationale “is not true.” She then makes conclusory assertions that Chris Mazza “was not treated like Plaintiff” and “neither were several others,” though she does not identify any other names. Brief at 13. Significantly, Ms. Davis’ brief ignores Ms. Davis’ own testimony. Ms. Davis was asked at her deposition about who expressed concern about feeling anxious around Mr. Dwyer, and she testified, “Just about everybody on the floor. If you can get an office roster, everybody that’s on the floor.” Defendants’ SUMF at #21 (citing to Davis Deposition at 56:14-25).6 Notably, Ms. Davis offers no factual basis to conclude that any of Mr. Dwyer’s actions were targeted against her because of race or gender. For example, although Mazza (a white male) was moved to a different role, Mazza posted for that job, interviewed for the position along with other candidates, and ultimately was selected for the position. (Plaintiff’s Att. Aff., Exhibit 1 at 165:24-169:24.) Ms. Davis was provided with the same opportunities—to post for jobs and to obtain interviews—but Ms. Davis refused to engage in those processes other than with respect to 6 Ms. Davis responded “Denied...[sic]as anxious as immaterial. Mr. Dwyer Had an Agenda to Remove Ms. Davis From Her Job.” Plaintiff’s Response to Defendants’ SUMF at #21 (the quoted text is the exact and full quote of Plaintiff’s response; the ellipses were in the original text). This “denial” is not a denial: it does not cite to the record to support any opposition and the quote is not immaterial. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 14 of 27 PageID: 1950 10 one position in Moorestown. Defendants’ SUMF ##107-108; 111-115. Consequently, Ms. Davis cannot survive summary judgment by claiming that Allstate provided accommodations to others but not to her or that Mr. Dwyer treated others better than she was treated. 4. Ms. Davis’ complaints are trivial and fail to meet the severe and pervasive standards required for hostile work environment claims. Although Ms. Davis claims that Mr. Dwyer’s conduct was “severe and pervasive,” Brief at 14, the evidence and case law she identifies fail to substantiate such a claim. First, as noted previously, Ms. Davis admits that Mr. Dwyer never made any racial comments to her and is unaware of Mr. Dwyer ever making racial comments about her. Defendants’ SUMF #53; Plaintiff’s Response at #53. Ms. Davis admits that her pay, benefits, and terms and conditions of employment remained the same. Defendants’ SUMF ##13-17, 82 and Plaintiff’s Response ##13- 17 and 82. Ms. Davis has no evidence of any physically threating or humiliating actions. In sum, Ms. Davis’ complaints are simply nothing more than offensive utterances or vague, minor changes that do not constitute severe or pervasive treatment covered by anti-discrimination law. Second, Ms. Davis has not identified any case that supports her view. For instance, she cites to Harris v. Forklift Systems, Inc., 510 U.S. 17 (1993), in which the Supreme Court held that Title VII did not require conduct to be “psychologically injurious” to be actionable. Id. at 22. In Harris, the plaintiff was “often insulted because of her gender” and often “made the target of unwanted sexual innuendos.” 510 U.S. at 19. The company president in the Harris case “occasionally asked Harris and other female employees to get coins from his front pants pocket. He threw objects on the ground in front of Harris and other women, and asked them to pick the objects up. He made sexual innuendos about Harris' and other women's clothing.” Id. None of those factual circumstances in Harris are similar to anything that Ms. Davis has alleged. Here, Defendants never argued that Ms. Davis failed to meet the severe or pervasive Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 15 of 27 PageID: 1951 11 standard because she failed to show a psychological injury. Instead, Defendants applied the rule set forth in Harris and argued that “Ms. Davis has no evidence from which to conclude that any reasonable African-American employee would find the working conditions altered and the working condition to be ‘hostile or abusive.’” Defendants’ Brief In Support of Their Motion for Summary Judgment, ECF No. 66, at 32-33. Ms. Davis’ conclusory assertion that her evidence was severe or pervasive does not make it so. Ms. Davis has failed to establish this element of her prima facie case. 5. Ms. Davis’ case bears no similarity to Durham Life Insurance v. Evans. Ms. Davis incredibly—and erroneously—asserts that the facts of her case are similar to the facts in Durham Life Insurance Co. v. Evans, 166 F.3d 139 (3d Cir. 1999), Brief at 19-20, but a review of the facts in Durham reveal no similarity at all to Ms. Davis’ case. In Durham, new management that took over an insurance company told the female plaintiff that “she did not fit the profile for a debit life insurance company: Her clothes and shoes were too expensive and she dressed too well for the job.” Id. at 145. One supervisor told the plaintiff that she “made too much money for a goddamn woman.” Id. Another supervisor asked the plaintiff to “go dancing into the fields with him and reminded her that he had the power to fire her if she did not behave as he wished.” Id. One day after that conversation, the supervisor told her that if she reported the incident or tried to quit and take her business with her, then the company would sue her and “attach her house before she left the courtroom.” Id. The plaintiff in Durham also suffered other slights: the firing of her secretary and an attempt to get her to vacate her private office, both of which had been specific, negotiated conditions of Evans’ agreement to work for that employer; being “publicly mocked for her walk and her speech” by a sales manager; not receiving assistance from a legal office that supported other male sales employees; Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 16 of 27 PageID: 1952 12 and a physical assault where a supervisor “grabbed Evans’s buttocks from behind while she was bending over her files and told her that she smelled good.” Id. at 145-46 and 153. The facts of the Durham case have no similarity to Ms. Davis’ case. Ms. Davis admits that she worked for Mr. Dwyer for most of her 32 years at Allstate (Defendants’ SUMF ##2 and 4 and Plaintiff’s Response ##2 and 4) and that prior to Mr. Dwyer becoming her supervisor again in 2013, her work environment was pleasant (Defendants’ SUMF #12 and Plaintiff’s Response #12). Ms. Davis also admits that Mr. Dwyer never made any racial comments to her and is not aware of any racially-charged comments being made about her. (Defendants’ SUMF #53 and Plaintiff’s Response #53.) Nor has Ms. Davis advanced any allegation that Mr. Dwyer made any sexually-charged comments or physically touched her in any manner. Although the plaintiff in Durham had specifically negotiated for certain employee benefits (such as a secretary and office space), there is no allegation that Ms. Davis negotiated for certain employee benefits that Dwyer withheld from her. Accordingly, there is no basis for Ms. Davis’ claim that the facts of the Durham case have any similarity to her case. These cases could not be more different. In sum, Ms. Davis has failed to establish a prima facie case of race or gender discrimination. Accordingly, Defendants are entitled to summary judgment on those claims. D. Ms. Davis Does Not State a Prima Facie Case of Disability Discrimination Ms. Davis cannot meet her summary judgment burden for her disability claims. 1. Ms. Davis’ response to Defendants’ SUMF confirms her “disability” is working with Jeff Dwyer, which is not a disability under the law. One essential element to any disability claim is to show the existence of a “disability.” For the reasons expressed in Defendants’ principal brief, Ms. Davis is not disabled as defined by law because she claims that her disability is working for Mr. Dwyer. ECF No. 66 at 5-7. Indeed, Ms. Davis admitted that she “ha[s] a disability in which working for Jeff [Dwyer] causes me Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 17 of 27 PageID: 1953 13 anxiety and depression” and that Mr. Dwyer was the trigger for her adjustment order with anxiety and depression. Defendants’ SUMF ##74-75; Plaintiff’s Response ##74-75. Thus, Ms. Davis cannot state a claim for disability discrimination under the ADA or the LAD. 2. Being “regarded as” disabled does not trigger accommodation requirement. Ms. Davis argues in two places that Allstate “regarded” her as disabled and, therefore, Ms. Davis has a disability claim. Brief at 30. This is wrong as a matter of fact and law. Plaintiff has presented no evidence that Allstate “regarded” Ms. Davis as disabled under the ADA or the LAD. Speer v. Norfolk S. Ry. Corp., 121 F. App'x 475, 477 (3d Cir. 2005) (a person is regarded as disabled under the ADA if an employer “mistakenly believes that a person has a physical impairment that substantially limits one or more major life activities” or “mistakenly believes that an actual, nonlimiting impairment substantially limits one or more major life activities”). More importantly, a plaintiff who is only “regarded as” disabled is not entitled to any accommodations. 42 U.S.C. §12201(h) (employer “need not provide reasonable accommodation…to an individual who meets the definition of disability in section 12102(1) solely under subparagraph (C) of such section”); Kiniropoulos v. Northampton Cty. Child Welfare Serv., 606 F. App'x 639, 642 (3d Cir. 2015) (Plaintiff “was not entitled to a reasonable accommodation because he alleges that he was ‘regarded as’ having an impairment…”). If Ms. Davis’ argument that Allstate regarded her as disabled is true, her claim for failure to accommodate would still fail as a matter of law. 3. Adverse action is required for failure to accommodate NJLAD claim. Ms. Davis makes the outrageous and inappropriate claim that Defendants are attempting to “mislead the Court” due to Defendants’ argument that “the law regarding failure to Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 18 of 27 PageID: 1954 14 accommodate requires some adverse job action.” Brief at 24 & 26. Defendants did not (and would not) attempt to mislead the Court, and Ms. Davis is wrong on the law. First, Defendants explicitly identified the Appellate Division case that established the adverse action requirement and explicitly noted that the New Jersey Supreme Court reserved decision on that precise issue. Defendants’ principal brief, ECF No. 66, at 7-8 and n.2 (citing Victor v. State, 401 N.J. Super. 496 (App. Div. 2008), aff’d as modified, 203 N.J. 383 (2010)). Although Ms. Davis may disagree with Defendants’ argument that an adverse action is required to state a failure-to-accommodate claim under NJLAD, Ms. Davis cannot reasonably or ethically charge that Defendants seek to “mislead” the Court in light of the plain text of Defendants’ brief and the Appellate Division opinion in Victor v. State. Second, Ms. Davis cites to Victor v. State but appears to ignore the discussion of this exact issue in that case. Although the state Supreme Court reserved decision on whether to adopt the Appellate Division’s position that a failure-to-accommodate claim requires a separate adverse action, the Appellate Division opinion is still binding precedent on the issue. Ms. Davis ignores that fact, and she does not identify any other appellate support for her idea that an adverse action is not required for a failure-to-accommodate claim. Nor does Ms. Davis explain why the New Jersey Supreme Court would, when faced with the question again, overrule the Appellate Division’s holding on that issue. Accordingly, Ms. Davis provides no basis for this court to ignore the Appellate Division opinion in Victor v. State. Third, Ms. Davis’ claim that Defendants’ “prefaced their belief that Plaintiff cannot succeed on her disability discrimination case based upon the interpretation regarding what an adverse job is before the Young case outlined the law,” Brief at 25-26, is flawed on many levels. Defendants’ position that Ms. Davis cannot survive summary judgment on her disability claim is Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 19 of 27 PageID: 1955 15 based on much more than her inability to show an adverse action. See Defendants’ principal brief, ECF No. 66, at 4-17 (discussing multiple reasons why Plaintiff fails to have a viable disability discrimination claim). And the Young case did not “outline the law” on ADA adverse actions—its holding was limited to the PDA, and that statute has no relevance here. 4. Allstate never told Ms. Davis that she could not obtain a position in a different department. Ms. Davis argues several times that she was not allowed to “cross the lines into another division” at Allstate, e.g., Brief at 8, 28, 34, but she offers no record evidence to support this claim. And there is none. Ms. Davis has no evidence that anyone at Allstate told her she would not be considered for a position in a different department. And Allstate considered Plaintiff for a position in a different division (the Burlington/Moorestown post)—which directly refutes that idea that Ms. Davis was not “allowed” to cross into another division. Although Allstate eventually determined that Ms. Davis was not qualified for the Burlington/Moorestown position that she applied for, Allstate did not tell her that she would never be qualified for any other position in a different division. Ms. Davis could have applied to other positions in other divisions, but she chose not to do so. In short, there is no evidence to support Ms. Davis’ claim that she was not “allowed” to “cross the lines into another division” at Allstate. 5. Allstate never ignored Ms. Davis’ request for an accommodation. Ms. Davis misleadingly states that Annette Geller, an HR professional in Allstate New Jersey’s office, “admitted that she did not engage in any meaningful effort [regarding Plaintiff’s request for an accommodation] and did not believe she had to as Plaintiff had retained counsel.” Brief at 28. In doing so, Ms. Davis fails to identify a key fact that she admitted in her response to Defendants’ SUMF: that Allstate’s counsel, Winnie Nguyen, engaged in communications with Ms. Davis’ counsel regarding the accommodation request. Defendants’ SUMF ##89-90; Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 20 of 27 PageID: 1956 16 Plaintiff’s Response ##89-90. Moreover, Ms. Davis ignores that Ms. Geller was no longer involved in the accommodations request because counsel for Allstate was involved in the accommodations request. Ms. Davis has no valid complaint about who engaged in discussions regarding the interactive process on behalf of Allstate, as long as someone did—and Ms. Davis admits that someone did. Accordingly, Ms. Davis’ claim that Ms. Geller failed to respond adequately is meritless. 6. Allstate had no obligation to remove Mr. Dwyer as Ms. Davis’ supervisor Ms. Davis attempts to refute Defendants’ position that Allstate had no obligation to remove Mr. Dwyer as her supervisor, Brief at 28-29, but she utterly fails. Ms. Davis does not identify, address, or (attempt to) distinguish any of the authorities cited by Defendants on this point. See Defendants’ principal brief, ECF No. 66, at 13-14 (citing, inter alia, EEOC Enforcement Guidance; Ozlek v. Potter, 259 F. App’x 417, 420-21 (3d Cir. 2007); Gaul v. Lucent Techs., Inc., 134 F.3d 576, 579 (3d Cir. 1998)). Ms. Davis’ entire argument consists of the following two sentences: “Dwyer runs the entire property line in New Jersey, unless Plaintiff was allowed to cross the lines into another division, Dwyer would be her supervisor unless she was moved as she tried when she interviewed for the casualty position in Moorestown. Accordingly, this defense should be unavailing the defendants’ [sic].” Brief at 28-29. Ms. Davis’ argument is nonsense. Even if Mr. Dwyer ran the entire property line in New Jersey, Allstate as a matter of law had no obligation to remove her from his supervision. E.g., Ozlek, 259 F. App’x at 420-21; Gaul, 134 F.3d at 579; Fronczkiewicz v. Magellan Health Services, Inc., 2014 WL 3729185 (D.N.J. July 25, 2014). And, as discussed earlier, Allstate never stated that Ms. Davis could not move into another division and Allstate considered Ms. Davis for a different position in another line of business. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 21 of 27 PageID: 1957 17 Ms. Davis insisted on getting a new supervisor as her “accommodation,” Defendants’ SUMF #109, and that request was unreasonable as a matter of law. E.g., Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans With Disabilities Act, 2002 WL 31994335 (E.E.O.C. Guidance) at *24 (“33. Does an employer have to change a person’s supervisor as a form of reasonable accommodation? No. An employer does not have to provide an employee with a new supervisor as a reasonable accommodation.”); see also Defendants’ principal brief at 13-14. Accordingly, Ms. Davis’ argument that Allstate had some obligation to remove Mr. Dwyer as her supervisor has no merit. 7. Ms. Davis was responsible for any breakdown in the interactive process. Ms. Davis cites the Third Circuit’s decision in Taylor v. Phoenixville School District, 184 F.3d 296 (3d Cir. 1999), for the proposition that she complied with her obligations under the ADA, but the Taylor decision actually supports Defendants’ position that Ms. Davis was responsible for any breakdown in the interactive process. In Taylor, the Third Circuit noted that an employee who wants to transfer to another position has the burden to show he can perform the essential functions of the open position. 184 F.3d at 316. Significantly, the Third Circuit also held that “[i]f an employee insists on a single accommodation that is unreasonable as a matter of law, then the employee will be at fault for the breakdown in the interactive process.” Id. at n.7. Here, Allstate assisted Ms. Davis with identifying potential openings but Ms. Davis refused to engage in that search. Ms. Davis has admitted that she did not look at any job postings, had no intention of looking at job postings, and deleted job postings because she was not interested. Defendants’ SUMF #114; Plaintiff’s Response #114. Ms. Davis further admitted that she did not look for opportunities because she thought he did not have that obligation. Defendants’ SUMF #112; Plaintiff’s Response #112. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 22 of 27 PageID: 1958 18 Additionally, Ms. Davis insisted on an unreasonable accommodation to the exclusion of all others and, therefore, Ms. Davis is responsible for the breakdown in the interactive process. See Ozlek v. Potter, 259 F. App’x 417, 420-21 (3d Cir. 2007) (rejecting a plaintiff’s argument that an employer was obligated to move him to a new supervisor or that the employer could be liable for a failure to engage in the interactive process for failing to do so because the plaintiff’s only proposed accommodation request “was unreasonable as a matter of law, [plaintiff’s] failure to accommodate claim based on a lack of ‘interactive process’ fails.”). 8. Ms. Davis concedes that Allstate has no obligation to grant her a new position without competition. Although hidden under a heading that does not address an issue in this case,7 Ms. Davis’ brief contains a major concession: Ms. Davis agrees that Allstate had no obligation to provide her with a new position without competition from other candidates. Brief at 33 (citing EEOC v. St. Joseph’s Hospital, 842 F.3d 133[3] [11th Cir. 2016]); see also Defendants’ principal brief at 15-16. This concession alleviates the Court of the task of determining whether the St. Joseph’s Hospital reasoning would apply in this circuit, and conclusively blocks a potential avenue for Ms. Davis’ failure-to-accommodate claim. Ms. Davis claims that a plaintiff “need only show that an ‘accommodation’ seems reasonable on its face, i.e., ordinarily or in the run of cases.” Brief at 33 (citations omitted). Ms. Davis quotes the right standard but fails to apply it properly. As St. Joseph’s Hospital makes clear, if a job reassignment request is claimed to violate a disability neutral rule of an employer, then a plaintiff is required to show that the accommodation sought is reasonable in the run of cases. 842 F.3d at 1346. But the St. Joseph’s Hospital court goes on to explicitly hold that 7 The heading is “The Defendants’ use of the seniority defense is unavailing in this instant.” Brief at 33. Defendants do not argue, and have never argued, for a “seniority defense.” Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 23 of 27 PageID: 1959 19 “[r]equiring reassignment in violation of an employer’s best-qualified hiring or transfer policy is not reasonable ‘in the run of cases.’” Id. “As things generally run, employers operate their businesses for profit, which requires efficiency and good performance. Passing over the best- qualified job applicants in favor of less-qualified ones is not a reasonable way to promote efficiency or good performance.” Id. Accordingly, Ms. Davis cannot argue that she should have been given a new position without competition because such a request is not reasonable in the run of cases. Id.; cf. Ozlek v. Potter, 259 F. App’x at 420-21 (plaintiff’s requested accommodation to move him to a new supervisor unreasonable as a matter of law). Ms. Davis claims she “could have been trained” in a new position, Brief at 34, but Allstate had no obligation to provide training to Ms. Davis so that she could become qualified for a new position. “There is no obligation for the employer to assist the individual to become qualified. Thus, the employer does not have to provide training so that the employee acquires necessary skills to take a job.” EEOC Enforcement Guidance, 2002 WL 31994335 at *20. Ms. Davis again cites to a list of “33 employees that have been move [sic] to other lines,” Brief at 34, but that list is not a proper comparator list and Ms. Davis has no evidence to support it. See, supra, III.B.2. Accordingly, Ms. Davis has cannot use these assertions to show that her requested accommodation was “reasonable in the run of cases.” In sum, Plaintiff’s disability discrimination and failure to accommodate claims must fail. E. Plaintiff Did Not Attempt to Show, and Cannot Show, Pretext Throughout Defendants’ principal brief, Defendants argued that even if Ms. Davis had demonstrated a prima facie case of race, gender, age and/or disability discrimination (which she did not), Ms. Davis’ claims could not proceed because she has not demonstrated pretext. Defendants’ Principal Brief at 22 n.7; 28 n.10; 29 n.12. Ms. Davis’ opposition brief never argues Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 24 of 27 PageID: 1960 20 that she has demonstrated pretext, and she has not. Therefore, even if Ms. Davis would have satisfied her prima facie case, her race, gender, age and/or disability discrimination claims fail due to her inability to show pretext. F. Ms. Davis’ Claims for Individual Liability and Age Discrimination Fail Notably, Ms. Davis fails to identify the elements required for individual liability under the LAD or argue how Ms. Davis’ evidence satisfies those elements for Mr. Dressel and Mr. Dwyer. Therefore, in light of the arguments against individual liability set forth in Defendants’ principal brief, Ms. Davis’ claim for individual liability must fall. Similarly, Ms. Davis fails to address her age discrimination claim in any meaningful way in her opposition brief. Accordingly, she appears to be conceding she has no age discrimination claim. In any event, based on the arguments set forth in Defendants’ principal brief, Ms. Davis’ age discrimination claim must fail as a matter of law. G. Ms. Davis Does Not Provide Sufficient Evidence to Permit a Jury to Evaluate Her Allegations of Extreme or Outrageous Conduct. Ms. Davis argues that “[i]t is for a jury to decide to decide [sic] whether an employee has a cause of action for intentional infliction of emotional distress.” Brief at 39 (citing Wigginton v. Servidio, 324 N.J. Super. 114, 131 (App. Div. 1999); Taylor v. Metzger, 152 N.J. 490, 512-13 (1998); Velez v. City of Jersey City, 180 N.J. 284, 297 (2004)). In doing so, however, Ms. Davis ignores Defendants’ well-supported arguments and cites irrelevant cases. First, Ms. Davis does not dispute that common law emotional distress claims are preempted by the NJLAD and/or barred by the Worker’s Compensation Act. Second, she does not address Defendants’ argument that there is insufficient evidence to reach a jury. (ECF No. 66 at 39-42.) Thus, Ms. Davis--at least implicitly--concedes these points. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 25 of 27 PageID: 1961 21 Third, the cases that Ms. Davis relies upon are irrelevant. In Wiggonton, the emotional distress claim was based on an explicit sexual comment from supervisors to the plaintiff. Wiggonton, 324 N.J. Super. at 120. “Martinez then said to plaintiff, ‘Your boss said you’d give him a blow job.’ Servidio added, ‘Yeah, and he said we can watch.’ Although [the “boss” referred to above] said nothing, plaintiff claimed that he moved to the edge of his seat as he put his hands on his spread-apart knees, ‘like he was ready for me to perform some kind of act.’” Id. The Wiggonton court held that, in light of these remarks made to the plaintiff, the question of whether defendants intended to cause emotional distress was for the jury. Id. at 131-32. Similarly, in Taylor, the comment at issue was an explicit and offensive racial slur uttered by a supervisor to a plaintiff. 152 N.J. at 509-10. The court held that the jury should be allowed to determine if the comment was “outrageous.” Id. Finally, the Velez case cited by Plaintiff addresses sovereign immunity and notice requirements for common law emotional distress claims against a municipality, and is not relevant to anything in this case. 180 N.J. 284, 293-94. Ms. Davis has no allegations that even come close to the factual situations present in Wiggonton or Taylor. She admits Mr. Dwyer never made any racially-charged comment to her or that she even heard about any racially-charged comment being made about her. Defendants’ SUMF #53 and Plaintiff’s Response #53. Ms. Davis also has not alleged any physical act or explicit sexual comment made to her or about her. Indeed, Ms. Davis has not provided any plausible basis for a jury to conclude she has a viable emotional distress claim. Accordingly, Defendants are entitled to summary judgment on Ms. Davis’ emotional distress claims. Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 26 of 27 PageID: 1962 22 IV. CONCLUSION For any and all of the reasons set forth herein and in Defendants’ principal brief, Defendants’ motion for summary judgment should be granted in its entirety. Respectfully submitted, COZEN O’CONNOR, P.C. Dated: February 20, 2018 By: /s/ Debra S. Friedman Debra S. Friedman (NJ ID 015831992) Jason A. Cabrera (NJ ID 077342013) 1650 Market Street, Suite 2800 Philadelphia, PA 19103 P: 215-665-2000 Attorneys for Defendants Allstate New Jersey Insurance Company, Jeffrey P. Dwyer and Daniel Dressel Case 1:16-cv-01202-RMB-AMD Document 90 Filed 02/20/18 Page 27 of 27 PageID: 1963