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. e du/thir dc ir c uit_2001/173Filed August 3, 2001

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

NO. 00-5026

GERTRUDE W. ABRAMSON, Appellant

v.

WILLIAM PATERSON COLLEGE OF NEW JERSEY

On Appeal from the United States District Court for the District of New Jersey (D.C. Civil No. 95-cv-04353) District Judge: Honorable Katharine S. Hayden

Argued January 25, 2001

Before: NYGAARD, ALITO, and RENDELL, Circuit Judge s,

(Filed: August 3, 2001)

Phyllis Gelman Lindsay N. Feinberg [ARGUED] Gelman & Feinberg 60 East 42nd Street, Suite 1060 New York, NY 10165 Counsel for Appellant

Gertrude W. AbramsonNathan Lewin [ARGUED]

Miller, Cassidy, Larroca & Lewis 2555 M Street, NW, Suite 500 Washington, DC 20037 Counsel for Amicus-Appellant

National Jewish Commission on Law and Public Affairs ("COLPA")

Bruce J. Solomon [ARGUED] Office of Attorney General of
New Jersey

Division of Law Richard J. Hughes Justice Complex Trenton, NJ 08625 Counsel for Appellee William Paterson College of
New Jersey

OPINION OF THE COURT

RENDELL, Circuit Judge.

Gertrude Abramson appeals the summary judgment granted to her former employer, William Paterson Co llege ("WPC"),1 against whom she filed hostile work envir onment, religious discrimination, and unlawful retaliation claims under Title VII and the New Jersey Law Against Discrimination ("NJLAD"). Abramson, former tenure-t rack Associate Professor in the Department of Curriculum & Instruction ("C&I") of the School of Education at W PC, claimed she was subjected to harassment and ultimat ely terminated, both because of her Orthodox Jewish bel iefs and practices, and because she complained of WPC's religious discrimination against her. The District Court granted summary judgment in favor of WPC on all cla ims, and Abramson now appeals. We conclude that Abramson established a prima facie case for all three causes of action, and that the District Court erred in the way that i t

___________________________________________________ ______________

1. WPC, now the William Paterson University of New Jersey, is an undergraduate and graduate educational institution, and is a state college of New Jersey.

2considered the evidence and applied certain legal p rinciples.

We will therefore reverse the grant of summary judg ment and remand for further proceedings.

I.

A. Facts

Most of the underlying facts are undisputed. Where there is a dispute, we view the facts in the light most f avorable to the plaintiff. Drinkwater v. Union Carbide Corp. , 904 F.2d 853, 854 n.1 (3d Cir. 1990). WPC hired Abramson, an Orthodox Jew, for one year as a tenure-track Associ ate Professor, effective September 1, 1990. Abramson ha s a Doctor of Education degree in Communications, Compu ting and Technology from Columbia University, and New Yo rk State teacher certifications in elementary educatio n and early childhood education. In 1990, she had been te aching for ten years at the college level, had published i n peerreviewed academic publications, and had a national reputation in education technology. At the time WPC hired her until her termination, Abramson was the only Or thodox Jew employed in the School of Education at WPC.

At the start of her first year at WPC, Abramson inf ormed her Department Chair, Jim Peer, that she would not be able to teach on Jewish holidays. He suggested that she work out her schedule with her students, which she did, and the days she missed on account of Jewish holidays were not counted as sick days. App. at 134-35.

The Review Process

As part of WPC's written policies and procedures regarding retention and tenure, an untenured profes sor's academic performance was to be reviewed on an annua l basis. New Jersey state law does not allow a state college to offer tenure to a faculty member upon appointment, but does permit it to offer tenure to a professor after two years of employment upon a showing of extraordinary circumstances. N.J. Stat. Ann. S 18A:60-9 (West 199 3). Barring exceptional circumstances, an untenured fac ulty

3member must serve five years before being considere d in

the fifth year for an award of tenure made effectiv e in his or her sixth year of employment. Id. atS 18A:60-8.

Retention and tenure decisions in Abramson's department are first considered by the Curriculum a nd Instruction Retention Committee ("the Committee"). The criteria used to determine retention and tenure, as set forth in WPC's written retention policy, are as follows: (1) professional performance; (2) professional growth; and (3) potential contributions to the academic department and the University in terms of present and future programs. The Department Chair is an ex-officio member of the Committee. Though not a voting member, the Chair do es choose whether or not to sign the Committee's recommendation. App. at 707. By not signing a recommendation, the Chair indicates a lack of suppo rt for the Committee's evaluation. App. at 708. The Dean t hen makes a recommendation to the Provost. Finally, the

President of WPC makes a determination whether or n ot to recommend retention (or tenure, where applicable) t o the

Board of Trustees. The WPC Board of Trustees then d ecides whether to retain and/or grant tenure based on the

recommendation of the President.

Abramson's First Two Years at WPC

Abramson's first "annual" review occurred shortly a fter she began teaching at WPC, and on November 7, 1990, the Committee "strongly" recommended the retention of Abramson for the 1991-92 academic year. App. at 203 . The Committee applauded her teaching, scholarly achieve ment and service, and noted Abramson's ability to teach many C&I courses, opining that "[t]his flexibility makes her most valuable for future planning." Id. It went on to sa y that the C&I Department "has long been in need of just such expertise as Professor Abramson brings . . . [WPC] stand[s]

to benefit from her work as a teacher and scholar." Id.

In the fall of 1991, during Abramson's second year at WPC, Nancy Seminoff became the Dean of WPC's School of Education, and in October 1991, she appointed Shell ey Wepner to chair the C&I Department. On October 29, 1991,

4the Committee recommended the retention of Abramson for

the 1992-93 academic year, and Dean Seminoff concur red. The Committee noted Abramson's significant service, top teaching ratings by her peer evaluators, and exempl ary scholarship. It stated that "Professor Abramson exe mplifies WPC's direction for the future." App. at 207. Once again, it strongly recommended her retention, and Wepner sign ed the recommendation. President Speert then recommend ed Abramson's reappointment to the Board of Trustees. App.

at 204.

Abramson's Third Year at WPC

During Abramson's third year, she began to experien ce difficulties. First, Abramson was charged for sick days for each day of work she missed due to Jewish holidays, despite the fact that WPC was closed on several Chr istian holidays. App. at 13, 135, 159. In June 1992, after

Abramson submitted routine forms in connection with a professional conference she would be attending duri ng that summer, Seminoff required Abramson to meet with her to

account for the number of conferences and absences in the prior year. Linda Dye, the head of the faculty unio n, stated that this was "unprecedented" in a situation where a professor's absences had not exceeded the standards set by Human Resources. App. at 157-58.

In addition, Abramson was charged a day of sick lea ve for a Jewish holiday on October 20, 1992, when she was not even scheduled to teach. App. at 250, 677. After pr otesting orally and in writing, this error was corrected six months later. App. at 685. Then, in November 1992, during a C&I Department meeting called to plan the 1993-94 class schedules, Abramson stated her intention to schedul e her classes so that they did not conflict with the fall Jewish holidays. According to Abramson, "Wepner started to scream that she was tired of hearing about [Abramso n] and [her] holidays; when [Abramson] quietly tried to ex plain [her]self, Chair Wepner yelled that [Abramson's] ho lidays were . . . personal private issues and that she did not want them mentioned at the scheduling meetings." App. at 137.

During the fall of 1992, at a Technology Committee

5meeting chaired by Seminoff, Wepner suggested that

Abramson, along with others, come in on a Saturday to prepare a technology room. Wepner, who is Jewish he rself, made this suggestion while fully aware that Abramso n does not work on Saturdays. Abramson told the group that she

could not attend because of the Jewish Sabbath. 2 Thereafter, Wepner continually questioned Abramson about her lack of availability on Friday nights and Satur days. App. at 137-38.

On October 12, 1992, the Committee once again

recommended Abramson for retention for the 1993-94 school year. The evaluation highlighted the "dynami c" nature of Abramson's discipline, described her as a "caring educator" and "reflective teacher," noted she engag ed in a "wide range of scholarly activity" and was"active i n several national conferences in her field." App. at 225-28. This time, however, the Committee's evaluation noted som e "minor concern about her teaching performance and h er contribution to department activities . . . ." App. at 231. However, it also "recognized her numerous scholarly pursuits and professional contributions" and recomm ended her retention "in light of the department's present and future needs for a technology educator." Id. Wepne r signed the recommendation. Seminoff, noting "an imbalance in productivity" due to Abramson's focus on scholarly activity, expressed that she had "serious concerns about Dr. Abramson's reappointment," and recommended Abramson "with some reservation." App. at 929-30.

On October 22, 1992, Abramson wrote a seven-page letter to President Speert, stating that she took"s trong exception to the negative tenor and substance of th e recommendations made for [her] retention by[her] department and Dean Seminoff." App. at 1253. She we nt on to write, "I have lived as an Orthodox Jew all my l ife . . . . The non-discrimination policy of William Paterson C ollege precludes the need to defend either religious obser vances or pursuit of career goals." Id. Abramson attached the July 12,

___________________________________________________ ______________

2. In conformity with her religious beliefs, Abrams on does not work, use the telephone or drive a car from sundown on Friday until approximately one hour after sundown on Saturday.

61992 letter she had sent to Seminoff in response to the

Dean's request for an explanation of her absences. App. at 1261. She received no response from Speert, and she has asserted that his demeanor toward her changed dramatically after that. Instead of being friendly as he was previously, he "stopped speaking to [her] and would turn on his heel and walk away from [her] if [they] happene d to meet on campus." App. at 140. On October 30, 1992, President Speert informed Abramson that he intended to recommend her for retention for a fourth year. App. at 931.

In a March 1993 meeting, Wepner scheduled an annual C&I Department lunch for May on a Jewish holiday, e ven after Abramson informed her she could not attend. A pp. at 137. On April 1, 1993, Wepner's secretary commented to Abramson, in the presence of Wepner, that "other fa culty members are complaining about the way your religiou s absences inconvenience them"; Wepner did not commen t.

Id.

On April 27, 1993, Abramson sent a letter to Speert , the Provost, her union representative, the Chair of the Faculty Senate, and the entire Board of Trustees. App. at 9 39. She

attached the letter she had written to Seminoff aft er their meeting on March 23, 1993, a meeting that Abramson said

was another event in a series of "continued and unwarranted negativism toward [her]." App. at 940. The attached letter refuted Seminoff 's suggestions and criticisms regarding Abramson's teaching, leadershi p, professionalism, and collegiality, and said it was written to "counter the negative `facts' [Seminoff] continue[d ] to disseminate about [her]." App. at 939. The letter a ccused Seminoff of having "ill-concealed hostility" toward Abramson and of having a management style that "sti fles collegiality, deprives the departments and the coll ege of faculty creativity . . . and reduces innovative and effective teaching." App. at 947. Abramson testified in her d eposition that this letter was sent to "challenge the judgmen t of the Dean." App. at 1070.

On April 28, 1993, Provost Smith wrote a letter to Abramson stating that it was highly unprofessional for her to circulate such a letter so widely. App. at 1072- 73. Abramson, however, continued to circulate letters t hat were

7harshly critical of Dean Seminoff. On June 7, 1993, she

wrote a letter to Seminoff attacking her for "apply ing an administrative style that is autocratic and confron tational and is based upon an outmoded, discredited, paterna listic, approach to management." App. at 1076-77. Abramson' s letter added, "I have not seen any substantive evid ence that you are a constructive administrator." App. at 1077

. Abramson sent copies to Speert and Provost Smith.

On May 6, 1993, at a Technology Committee meeting, Seminoff suggested holding a technology conference on a Saturday. Abramson explained that she could not participate due to the Sabbath. According to Abrams on, Seminoff screamed at her, saying that if Abramson w ould not run a conference for her on Friday night and Sa turday, nothing Abramson did would have any value. App. at 137- 38, 157. And during the 1993-94 academic year, Wepn er suggested that faculty meetings be moved from Tuesd ays, the day when they had been held for many years, to Friday afternoons, which would conflict with Abramson's observance of the Sabbath. App. at 163-64.

Final Review for Retention

On September 20, 1993, five out of seven members of the

Committee voted to recommend Abramson's retention f or a fifth year, and for her early tenure. The Committee 's report stated the following:

Dr. Abramson is a skilled teacher and instru ctional designer in the interactive classroom settin g. . . . Students also recognize Dr. Abramson's excel lence as a teacher/educator. . . . She encourages stude nts to listen, think, and communicate and to develo p their

intellectual skills. . . . Dr. Abramson's wo rking relationships with faculty are flavored with respect. She is genuinely considerate and thoughtful of o thers and is willing to assist in any way possible. . . .[She] does her share to further educational and profess ional meetings. . . . She is a well rounded profes sional .. . who represents the college admirably . . . . On campus, Dr. Abramson has distinguished herself in a variety of roles. . . . Not only is she a fine scholar, but she is a valued colleague as well.

8App. at 234-38. The Committee also noted that Abram son

had an outstanding publication and speaking record, and served on many university committees. It stated tha t she had "restructured and expanded the graduate concentration in technology education . . . ." App. at 239. It also discussed the future goals of the instituti on with respect to her field of expertise, finding that she was in a position to help WPC attain those goals. It stresse d Abramson's networking abilities and her status as a "nationally recognized leader in her field," callin g her "a valuable resource and an asset to the College." Id.

The two other voting members of the committee, Aitk en and Coletta, were not present at the meeting. Wepne r was also absent. On September 23, 1993, Aitken, Coletta and Wepner appended comments to the Committee's

recommendation. Aitken wrote that she had "reservat ions regarding the [C]ommittee's recommendation," while Coletta and Wepner noted that they did "not agree with the Committee's recommendation." App. at 974.

Seminoff then wrote a memorandum to the Provost, stating that she did not recommend Abramson's reten tion. She cited concerns with three of the four applicabl e criteria for retention and tenure -- teaching, research/scho larly activity and service. App. at 975. Speert then unde rtook an analysis of Abramson's retention folder.

On September 22, 1993, Abramson wrote a letter to Robie Cagnina, WPC's Affirmative Action Officer, st ating in part: "This is the . . . third [year] in which reli gious discrimination has been directed at me. I am being subjected to bias, discriminatory treatment, harras sment [sic], and outright hatred because I live as an Ort hodox Jew." App. at 311. At the bottom of the letter, Cag nina wrote the following: "September 22, 1993 Met with D r. Abramson regarding this issue; discussed options fo r the filing of a complaint. Choice was to file with the Division of Civil Rights. RSC" Id.

On October 13, 1993, Wepner complained to Abramson, during a lengthy attack on her professional contrib ution during a graduate curriculum meeting: "[T]he troubl e with you is that it doesn't show that you are Orthodox." App. at

9138. During the following week, Abramson sent a let ter to

Speert, asking that, in light of Seminoff 's negati ve recommendation, he read her retention materials car efully. She wrote: "It appears that [Seminoff 's] bias agai nst me as an Orthodox Jew overwhelms her professional judgmen t." App. at 377. On October 25, 1993, nearly two weeks later, Speert wrote Abramson a letter informing her that h e did not intend to recommend her reappointment. App. at 977. He later expressed the reasons for his decision in a memorandum, sent to her on November 12, 1993. It appears clear from the memorandum that his reasons differed from Seminoff 's. In Speert's opinion, Abr amson's "potential contribution to her Department, Program and the College . . . [did] not justify reappointment." App . at 979.

Abramson then went through an appeals process, but Speert reached the same conclusion once again. In h is deposition, he explained his reasons for not retain ing Abramson. Speert said that the main reason was that the retention folder presented to him contained evidenc e of her inability to take leadership and guidance. App. at 1098. He

clarified that the referred-to evidence involved is sues related both to grants and to the accreditation vis it by the

National Council on the Accreditation of Teachers o f Education ("NCATE").3 He also noted that Abramson h ad failed to create a concentration in technology and refused to work with administrators to create an Apple compute r lab.

___________________________________________________ ______________

3. Speert testified in his deposition that Abramson dealt with a grant for Merck and a program with the Stevens Institute of T echnology in a way that was "not consonant with college processes." Ap p. at 1102. He stated that "her view with respect to the [Merck] grant wa s limiting and did not

take into account either circumstances at the schoo l level or college

level or any level." App. at 1101. With respect to a prop osed program with Stevens, he said that "Dr. Abramson's response to t he issue was

centered about individuals and not centered about t he program, the program gains with respect to the college and the c ollege's cost benefit analysis with respect to that program." App. at 110 7. Regarding the NCATE accreditation, Speert testified that he was r eferring to Abramson's complaints about not being placed on the steering committee, and her refusal to participate in the pr eparation for the accreditation visit after being excluded from the s teering committee. App.

at 1107-09.

10Other Evidence Offered

Abramson also offered affidavits from several WPC f aculty members. The affidavit of Linda Dye, WPC professor and president of the faculty union from 1993-94, suppor ted many of Abramson's allegations. She stated that Spe ert had refused to say at Abramson's appeal meeting why she was terminated, App. at 159, and also that the reasons given by WPC could all be refuted, App. at 160-61. She decla red the following:

All but three or four faculty members in the School of

Education had difficulties with Dean Seminof f. Even within that context, Dean Seminoff 's conduc t toward Professor Abramson stood out for its persona l hostility.

In contrast to her treatment of other facult y members, Dean Seminoff required Professor Abramson to justify every one of her actions in each and every a rea of

Professor Abramson's work . . . . Dean Semin off 's criticisms of Professor Abramson's performan ce were without basis . . . . Especially notable was her

insistence that Professor Abramson be exclud ed from the committee preparing the School of Educat ion for an accreditation visit by a team from [NCATE], since Professor Abramson had special expertise as she was a

member of NCATE . . . . Seminoff 's unfair c riticism of Professor Abramson's performance and her hos tile

conduct toward Professor Abramson were motiv ated by her disapproval of Professor Abramson's stri ct adherence to Jewish religious laws . . . .

App. at 156-57.

The affidavit of Stanley Wollock, a tenured profess or in Abramson's department, noted that Friday afternoon meetings were changed because "Wepner was aware tha t

Professor Abramson was unable to attend . . . becau se of her observance of the Jewish Sabbath." App. at 163. He also recounted that Wepner had stated that Abramson "would not be fulfilling her duties" if she did not attend the faculty meetings. App. at 164. In addition, he note d that Dean Seminoff said "you people" to Abramson more th an once and treated her "much more harshly than she tr eated other faculty members." Id. According to his observ ations,

11he believed the Dean's dislike of Abramson was base d on

her religion. App. at 165.

Doris White, a tenured professor in Abramson's department who was a member of the Retention and Tenure Committee in the Fall of 1993, stated, "Dean Seminoff was prejudiced against Jews," assigning bo th Abramson and another untenured Jewish faculty membe r to work on many Friday nights, though White was nev er asked to teach on a Friday night. App. at 168. She also declared that faculty meetings were only scheduled on Fridays while Abramson was in the C&I Department. I d. Additionally, White stated that Abramson had more technological expertise and had published more than the rest of the faculty in the C&I Department. App. at 167.

Finally, Abramson submitted the declaration of her former colleague, Cordelia Towney. Abramson and Tow ney had both been on the faculty at a different college earlier in their careers, and had worked on a book together wh ile Abramson worked at WPC. WPC had also employed Towne y for one semester. Towney stated that "[t]he religio us harassment which [Abramson] suffered at WPC made he r feel like a beaten puppy. She became sallow, stoope d, [and] she looked broken." App. at 174.

In addition to these declarations and her own affid avit, Abramson submitted a Post-It note written by Wepner that was contained in Abramson's file. App. at 445. The note said, "If you are dealing with grad program teacher s - work all day -- Logical for any working class college to have conferences on Sat[urday] - needs of institution co nflict with her practicing religion -- go. Conferences on Saturday

to deal." Id. Abramson also introduced into evidenc e extremely positive student evaluations she had rece ived during the 1992-93 academic year, faculty evaluatio n forms completed between April 1992 and May 1993 praising her work,4 as well as ten letters written to Speert by students and faculty members who strongly supported her rete ntion. App. at 183-85, 347-62, 380-93.

___________________________________________________ ______________

4. One peer review was much more critical of Abrams on than the others; this was written by Wepner.

12B. Procedural History

On November 3, 1993, Abramson filed a complaint of employment discrimination with both the Equal Employment Opportunity Commission ("EEOC") and the New Jersey Division on Civil Rights ("NJDCR"). App. at 141. After filing a grievance with her union that was ev entually denied, Abramson filed a complaint of religious

discrimination and retaliation with the NJDCR and t he EEOC on September 2, 1994. After receiving a right to sue letter from the EEOC, Abramson commenced this actio n in

the United States District Court for the District o f New Jersey on August 17, 1995.

The District Court delivered its summary judgment r uling from the bench on December 10, 1999, disposing of t he issues raised in a lengthy oral opinion that was interspersed with dialogue between the Court and co unsel. The Court entered its order on December 14, 1999, granting summary judgment in favor of WPC on all cl aims. In its oral opinion, the District Court briefly con sidered Abramson's hostile work environment claim, rejectin g it because it found that Abramson did not present evid ence that would satisfy the prima facie case. The Court focused primarily on Abramson's failure to make out the fir st element of the prima facie case: intentional discri mination on the basis of religion. In its view, there were t oo many other explanations for Wepner's conduct, making the religious animus explanation unreasonable. Dist. Ct . Op. at 78-79. Furthermore, it stated that the "same eviden ce works for both" discrimination and hostile work environment claims, and indicated it was considerin g Abramson's inability to prove pretext in its analys is of her

hostile work environment claim. Id. at 77-78. Overa ll, it found that "at best, [Abramson] raises a scintilla of

evidence." Id. at 83.

The vast majority of the District Court opinion add ressed Abramson's religious discrimination claim. The Dist rict Court was unpersuaded by the evidence relied on by Abramson to support her claim, though it did not re fer at all to the declarations submitted by Abramson's fel low professors. It stated that because the Committee vo ted to grant Abramson tenure, the focus of the inquiry sho uld be

13on whether President Speert failed to make a tenure

decision because of discriminatory animus. It found that

there was no evidence of such animus. Id. at 81-82. The Court held that "at best [Abramson] raises a scinti lla of evidence in the overall inquiry, by virtue of what the record reveals concerning the mind of Shelly Wepner." Id. at 83. In addition, the Court found that Abramson had failed to establish that WPC's reasons for terminating her we re pretextual. Id.

The District Court dismissed the comments made abou t Abramson's religion as "stray remarks." Id. at 30. The Court opined that there was a lack of evidence that peopl e acted negatively toward Abramson because of her religious absences. Id. at 58-59. The Court expressed its bel ief that Wepner was "hotheaded" and that her bad treatment o f Abramson was unrelated to religion. Id. at 59-60, 7 8.

The District Court then examined Wepner's statement to Abramson ("The trouble with you is that it doesn't show that you are Orthodox.") at length, acknowledging t hat it sounded "angry" and "confrontative"[sic]. Id. at 52

. However, after reading Wepner's deposition, the Cou rt "gleaned from that a position that [Wepner] as a Je w has, which is that she felt that her own religious pract ices were down-played [sic] and low-keyed by her, as a matter of her dealing with the issue of possible Antisemitism . . . ." Id. at 53. The District Court asked whether or not Wepner' s remark, "standing alone . . . establishes a religio us bias," and found that "[t]here's just no way I find for so meone to hear Shelly Wepner's remark and draw any kind of an inference that that per se remark is evidence of discriminatory animus towards Abramson . . . ." Id. at 53- 55. Instead, it determined that it only showed a"cl ear difference of opinion with respect to Abramson's op en acknowledgment and requests for acknowledgment of h er Orthodoxy . . . ." Id. at 55.

The District Court then addressed Wepner's Post-It as a "stand-alone document to give us a vision of Shelly Wepner's mind-set [sic] with respect to Abramson." Id. The Court was persuaded that the note "establishes even more strongly that Wepner moved from a difference of opi nion with plaintiff regarding the practice of her religi on and

14broadened that in her mind to a conclusion that . .

.

Abramson was not . . . going to meet the needs of t he institution." Id. at 56. However, the Court found t hat Abramson had failed to show the requisite nexus bet ween Wepner's Post-It and WPC's decision not to retain h er because it was "not contextually established where, when and how this Post-[I]t played a role in anything ot her than Wepner's own dossier regarding the plaintiff." Id. Although the Court noted that it was possible that Wepner so mehow influenced Speert, it found that a possibility was insufficient: "there has to be proof of a determina tive factor, i.e. factor of discrimination. Not the possibility. " Id. at 57.

The District Court was similarly unconvinced that Abramson's absence from Friday faculty meetings aff ected her job performance, and it also rejected the argum ent that the rescheduling of faculty meetings was done in an effort to harass Abramson or to discriminate against her. Furthermore, the Court did not believe that Seminof f 's request that Abramson account for her absences was related to religion. It ascribed her being charged with a sick day on a Jewish holiday when she was not scheduled to teach, and the six-month delay in correcting it, to "administrative and bureaucratic bumbling." Id. at 69. The Court stated that it was considering the record as a whole, and in doing so, it found that Abramson did not dis prove the legitimate nondiscriminatory reason WPC gave fo r not retaining Abramson. Id. at 83.

In rejecting Abramson's retaliation claim, the Dist rict Court held Abramson did not give "a clear enough indication that she was raising religious discrimin ation as an issue." Id. at 76. The Court considered only Spe ert's alleged change in demeanor when evaluating the adve rse employment action prong of the retaliatory inquiry, and held that "whatever Speert did or didn't do with re spect to friendliness would call for rank speculation on the part of the jury, if that jury was asked to say or to find that there

was retaliation." Id. The District Court did not co nsider

Abramson's ultimate termination as an adverse employment action.

Abramson appeals, arguing that the District Court e rred in dismissing her Title VII and NJLAD religious

15discrimination, hostile work environment, and retal iation

claims. She argues that she established a prima fac ie case for each of her claims. First, she argues that she has recounted sufficient proof of all elements of the p rima facie case required for a hostile work environment claim. With respect to her religious discrimination claim, Abra mson stresses that she submitted ample evidence that her supervisors were motivated by discriminatory animus stemming from her insistence that she be allowed to practice her Orthodox Jewish beliefs. She also argu es that she presented credible evidence that WPC's reasons for terminating her were pretextual. With regard to her retaliation claim, Abramson contends that the recor d clearly reflects that she made her supervisors awar e that she was complaining of discrimination, and that her termination was motivated by those complaints. We w ill

consider each of Abramson's claims in the order rai sed by appellant, beginning with her hostile work environm ent

claim.

II.

The District Court had subject matter jurisdiction under 28 U.S.C. S 1331 and 28 U.S.C. S 1343, and suppleme ntal jurisdiction under 28 U.S.C. S 1367. We have appell ate jurisdiction over this appeal pursuant to 28 U.S.C. S 1291. We exercise plenary review over the District Court' s grant of summary judgment to WPC, and we apply the same standard that the District Court should have applie d. Farrell v. Planters Lifesavers Co., 206 F.3d 271, 2 78 (3d Cir. 2000). A court should grant summary judgment "if th e pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, i f any, show that there is no genuine issue as to any material f act and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). In evaluating the e vidence, "a court must view the facts in the light most favorab le to the nonmoving party and draw all inferences in that par ty's favor." Farrell, 206 F.3d at 278. While the individ ual pieces of evidence alone may not suffice to make out the c laims asserted, we must view the record as a whole pictur e. Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d C ir.

161997). As we stated in Andrews v. City of Philadelp hia, 895

F.2d 1469, 1484 (3d Cir. 1990), "A play cannot be

understood on the basis of some of its scenes but o nly on its entire performance, and similarly, a discrimina tion analysis must concentrate not on individual inciden ts, but

on the overall scenario."

A. Hostile Work Environment

Abramson's first claim is that she was subjected to a hostile work environment based on her religion. To make out a prima facie case for a religiously hostile wo rk environment5 under Title VII, a plaintiff must demo nstrate five elements: "(1) the employee[ ] suffered intent ional discrimination because of [religion]; (2) the discr imination was pervasive and regular;6 (3) the discrimination

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5. We have yet to address a hostile work environmen t claim based on religion. However, Title VII has been construed und er our case law to support claims of a hostile work environment with r espect to other categories (i.e., sex, race, national origin). We s ee no reason to treat Abramson's hostile work environment claim any diffe rently, given Title VII's language. See 42 U.S.C. S 2000e-2(a)(1) (proh ibiting employers from discriminating against an individual because of"rac e, color, religion,

sex, or national origin."). Therefore, we apply the well -established framework for hostile work environment claims with respect to other protected categories to our analysis of a hostile work enviro nment claim made on account of religion. We also note that there is at least one reported decision from a court of appeals that has held that a claim for a hostile work environment based on religion exists, and appl ied the same prima facie case we use here. See Hafford v. Seidner , 18 3 F.3d 506, 514 (6th Cir. 1999) (holding that plaintiff "did not demonst rate a triable issue

over whether he was subjected to a hostile work environm ent based on religion.").

We also note that a New Jersey court has also recog nized that hostile work environment claims based on religion are cogni zable under the NJLAD. See Heitzman v. Monmouth County, 728 A.2d 29 7, 303 (N.J. Super. Ct. App. Div. 1999) (discussing plaintiff 's claim that he was subjected to hostile work environment because he wa s Jewish and noting that New Jersey courts have relied upon fede ral court decisions construing Title VII hostile work environment claim s when reviewing such claims under NJLAD).

6. We note, as we did in Bouton v. BMW of N. Am., I nc., 29 F.3d 103, 106 n.2 (3d Cir. 1994), and Spain v. Gallegos, 26 F.3d 439, 449 n.14 (3d Cir.

17detrimentally affected the plaintiff; (4) the discr imination

would detrimentally affect a reasonable person of t he same [religion] in that position; and (5) the existence of respondeat superior liability." Kunin v. Sears Roeb uck & Co., 175 F.3d 289, 293 (3d Cir. 1999) (citing Andre ws, 895 F.2d at 1482).

Under the NJLAD, a plaintiff states a claim for a religiously hostile work environment by showing tha t the "complained-of conduct (1) would not have occurred but for the employee's [religion]; and it was (2) severe or pervasive enough to make a (3) reasonable [Orthodox Jew] beli eve that (4) the conditions of employment were altered and the working environment was hostile or abusive." Hurley v. Atlantic City Police Dep't, 174 F.3d 95, 114 (3d Ci r. 1999), cert. denied, 528 U.S. 1074 (2000) (quoting Lehmann v. Toys R Us, Inc., 626 A.2d 445, 453 (N.J. 1993)). 7

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1994), that the Andrews formulation of this prong d iffers from the Supreme Court's. In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), and most recently in Oncale v. Sundowner Offshore S ervs., Inc., 523 U.S. 75, 78 (1998), the Supreme Court articulated the st andard for hostile work environment claims. It required that the plain tiff demonstrate that the harassment was "severe or pervasive." Id. On at least one previous occasion, we have also referred to the standard as severe or pervasive.

See Walton v. Mental Health Ass'n of Southeastern P a., 168 F.3d 661, 667 (3d Cir. 1999) (applying Title VII hostile work environment test to ADA harassment claim and holding that plaintiff fai led to "demonstrate[ ] that the asserted harassment was pervasive or sever e enough to meet the Harris standard."). In the instant case, Abrams on asserts a claim that the discrimination was "pervasive and regular, " thus fulfilling both the Andrews and the Harris tests. Therefore, we ado pt the approach

taken in Bouton. We note that the distinction betwe en "severe or pervasive" and "pervasive and regular" may be impor tant, but "do not find it necessary to resolve whether [the differenc e in language] was inadvertent." Bouton, 29 F.3d at 106 n.2.

7. New Jersey courts have placed a less onerous bur den on the plaintiff by omitting the final prong of the analysis. Theref ore, any plaintiff who has fulfilled the Title VII prima facie case will h ave also shown the elements required by the NJLAD. Because we find tha t Abramson has fulfilled the Title VII prima facie case, we will n ot discuss the NJLAD specifically, but note here that Abramson's claims under the NJLAD are intact based on her showing under Title VII.

18The District Court rejected Abramson's religiously hostile

work environment claims under both statutes, findin g that the conduct alleged did not meet the requirements o f the prima facie case. Dist. Ct. Op. at 78. Though it re ferred to all of the first four prongs of the test, the Court seemed to base its holding almost exclusively on Abramson's f ailure to meet the first prong, viewing that prong as involvi ng the perception of a "reasonable person of the protected status" and requiring a discriminatory "animus." We disagre e with this approach.

The proper inquiry at this stage was whether a

reasonable factfinder could view the evidence as sh owing

that Abramson's treatment was attributable to her r eligious faith and practice. Further, by asking whether a re asonable person would "necessarily construe" the conduct in question as being improperly motivated, the Distric t Court appears to have viewed the evidence in the light mo st favorable to the party making, not the party opposi ng, the summary judgment motion. See Howley v. Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000) ("It is not the province of the court itself to decide what inferen ces should be drawn.").

By requiring that Wepner's conduct be "linked" to a "discriminatory animus," Dist. Ct. Op. at 79, and s tating that the record did not sufficiently "reveal[ ] [wh at was in the] mind of Shelley Wepner," id. at 83, the Distri ct Court seemingly required Abramson to introduce direct evi dence of Wepner's intentional discrimination against her based on her religious beliefs. However, Supreme Court prece dent does not support the need for a plaintiff to demons trate

direct evidence of her harasser's motivation for discrimination against her. In Oncale, the Court di scussed

a hostile work environment claim on the basis of se x, and stated the following:

A trier of fact might reasonably find [sex] discrimination, for example, if a female vic tim is harassed in such sex-specific and derogatory terms by

another woman as to make it clear that the h arasser is motivated by general hostility to the presen ce of women in the workplace. A same-sex harassment plai ntiff may also . . . offer direct comparative evidence about how

19the alleged harasser treated members of both sexes in

a mixed-sex workplace.

523 U.S. at 80-81. Similarly, we have never require d a plaintiff to demonstrate direct proof that her hara sser's intent was to create a discriminatory environment. Instead, we have held that, with respect to certain conduct, the intent to discriminate can be inferred. Andrews , 8 95 F.2d at 1482 n.3 (referring to sexual misconduct). We ha ve also noted that because discrimination is "often simply masked in more subtle forms," it is often difficult to dis cern discriminatory animus. Aman v. Cort Furniture Renta l Corp., 85 F.3d 1074, 1082 (3d Cir. 1996); see also Iadimar co v. Runyon, 190 F.3d 151, 157 (3d Cir. 1999) ("The Supr eme Court has recognized that an employer who discrimin ates will almost never announce a discriminatory animus or provide employees or courts with direct evidence of discriminatory intent."). Thus, we have held that e ven the use of "code words" such as "all of you" and "one o f them" could be sufficient evidence from which a jury coul d find an intent to discriminate. See Aman, 85 F.3d at 1083 ( "The words themselves are only relevant for what they re veal -- the intent of the speaker."); see also Howley , 217 F.3d at 145, 148, 154-55 (finding hostile work environment claim on basis of sex viable where conduct at issue, thou gh lacking any sexual component or reference to plaint iff 's sex, could, in context, reasonably be interpreted a s having been directed at plaintiff because of sex).

The first prong of the Andrews test was not designe d to protect harassers who fail to recognize the hostile or abusive nature of their comments and actions. Our c ase law does not indicate that the first prong requires a factfinder to peer inside the harasser's mind. Rath er, it merely requires a showing that the offender's behav ior was, as required by both Title VII and the LAD, based on a protected category. See Spain v. Gallegos, 26 F.3d 439, 447-48 (3d Cir. 1994) (noting that though facts bef ore us did not include evidence of "blatantly sexist behav ior," plaintiff made out the first element "by showing th at gender

was a substantial factor in the discrimination" and that plaintiff would not have been treated in the same m anner if she were male) (internal quotation marks and cit ation

20omitted); Drinkwater, 904 F.2d at 862 ("[E]vidence of a

sufficiently oppressive environment could, in theor y, give courts enough evidence to infer that the intentiona l discrimination prong of the Andrews test can be met even absent evidence of the harasser's subjective intent to discriminate.")

Regardless of what a harasser's intention is, if a plaintiff presents sufficient evidence to give rise to an inf erence of discrimination by offering proof that her "workplac e is permeated with discriminatory intimidation, ridicul e, and insult that is sufficiently severe or pervasive to alter the conditions of the victim's employment and create an abusive working environment," Harris v. Forklift Sy s., Inc., 510 U.S. 17, 21 (1993) (internal quotation marks an d citation omitted), and the conduct is based on one of the categories protected under Title VII, a hostile wor k environment claim will survive summary judgment. He re, almost all of the incidents alleged centered around Abramson's insistence that she not work during the Sabbath. Therefore, we hold that where, as here, th e evidence tends to show that the harasser's conduct was intentionally directed toward the plaintiff because of her religion, the first prong of the prima facie case i s met.

Turning to the remaining elements of the prima faci e case for hostile work environment, we find that the evid ence Abramson presented was sufficient to satisfy her bu rden on the other prongs as well. We conclude that the many incidents recounted by Abramson, coupled with the declarations of other WPC professors, are relevant and probative as to prongs two through four of the prim a facie case for hostile work environment claims.8 Though we will

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8. We note that the parties disagree as to the Dist rict Court's treatment of the declarations, and we found the record quite vague in this regard. The District Court clearly did not allude to them i n its oral opinion, but did make a general statement during oral argument o n the summary judgment motion, offering the view that "some of th e affidavits . . .

would be truly inadmissible." Tr. of Oral Arg. at 100. It then stated that "we might have [an] [in] limine battle about that . . . when we are dealing

with whether or not it is admissible." Id. at 101. Because we have not been referred to a motion contesting their admissib ility or an order

21address each prong individually, first, we briefly note the

evidence that the District Court should have consid ered when ruling on Abramson's hostile work environment claim:9 (1) Seminoff 's "unprecedented" monitoring of Abram son's conferences and absences; (2) WPC charging Abramson with a sick day on a Jewish holiday when she was no t scheduled to teach; (3) both Wepner and Seminoff, o n separate occasions, criticizing and raising their v oices at Abramson regarding her lack of availability during the Sabbath; (4) Wepner scheduling meetings on Jewish holidays and refusing to change them so Abramson co uld attend; (5) Wepner's pointed statement to Abramson regarding her faith and behavior ("The trouble with you is that it doesn't show that you are Orthodox.").

First, a jury could find that the harassment was pervasive. The events alleged occurred over a perio d of two years and could be found to have infected Abramson' s work experience; even other faculty members mentioned it to Speert prior to Abramson's filing suit. App. at 390 -91, 513,

540-41. No one event alone stands out from the rest , but all of the events could be found to aggregate to cr eate an environment hostile to a person of Abramson's relig ion. See Durham Life Ins. Co. v. Evans, 166 F.3d 139, 155 (3 d Cir. 1999) ("[I]t is settled law that courts should not consider each incident of harassment in isolation. Rather, a court must evaluate the sum total of abuse over time.") ( internal citation omitted). Taken as a whole, all the events alleged

indicate that the harassment rose to the level of pervasiveness required to withstand summary judgmen t.

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ruling them inadmissible, we assume for our purpose s that they are to be considered. However, we note that their admissib ility is a matter for

the District Court to decide. See United States Sec . and Exchange Comm'n v. Infinity Group Co., 212 F.3d 180, 198 (3d Cir. 2000) (reviewing the exclusion of lay opinion testimony u nder Rule 701 for abuse of discretion); United States v. Eufrasio , 9 35 F.2d 553, 571 (3d Cir. 1991) (stating that admission under Rule 403 i s reviewed under an abuse of discretion standard).

9. This list is not exhaustive. There are additiona l examples in the

record.

22A jury could also reasonably conclude that Abramson

was detrimentally affected by the environment, ther eby fulfilling the third prong. Abramson's declarations amply support such a finding, as do the three affidavits of her fellow WPC faculty members. In addition, the declar ation of Cordelia Towney stated that "[t]he religious harass ment which [Abramson] suffered at WPC made her feel like a beaten puppy. She became sallow, stooped, [and] she looked broken." App. at 174.

In determining whether the fourth prong, the object ive test, is met,10 we must "look[ ] at all the circums tances. These may include the frequency of the discriminato ry conduct; its severity; whether it is physically thr eatening or humiliating, or a mere offensive utterance; and whe ther it unreasonably interferes with an employee's work performance." Harris, 510 U.S. at 23. The Supreme C ourt has stated that Title VII is not violated by the"me re utterance of an . . . epithet which engenders offen sive feelings in an employee" or by mere "discourtesy or rudeness," unless so severe or pervasive as to cons titute an objective change in the conditions of employment. F aragher v. City of Boca Raton, 524 U.S. 775, 787 (1998) (in ternal quotation marks and citations omitted). The conduct in the instant case could be said to go beyond "simple tea sing, offhand comments, and [non-serious] isolated incide nts," which the Supreme Court has cautioned would "not amount to discriminatory changes in the terms and conditions of employment." Id. at 788 (internal quo tation marks and citations omitted). We find that Abramson has made a sufficient showing, based upon the facts set forth above, that a jury could find that a reasonable per son of her religion would find the conduct alleged to be s o harmful that it altered her working conditions.

With respect to the fifth prong of the hostile work environment claim, the existence of respondeat supe rior

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10. We also note that the District Court analyzed w hether a reasonable Orthodox Jew would find the behavior to be religiou sly motivated, but in assessing whether the fourth prong of the prima fac ie case is met, a court must consider whether or not a person in the protected category would be detrimentally affected by the conduct at i ssue.

23liability, a jury could also find that this prong h as been

met. The Supreme Court crafted the standard for emp loyer liability in Faragher, referred to as the"aided by the agency

relation test":

An employer is subject to vicarious liabilit y to a victimized employee for an actionable hostil e environment created by a supervisor with imm ediate (or successively) higher authority over the employee. When no tangible employment action is taken, a defending employee may raise an affirmative defense to liability or damages . . . . No affirmative defense is available, however, when the supervisor's ha rassment culminates in a tangible employment action, such as discharge . . . .

524 U.S. at 807. Here, it is undisputed that Abrams on was terminated. Hence, WPC cannot assert an affirmative defense, and the evidence of liability is clear. Be cause Abramson presented evidence sufficient to meet all five elements of the prima case, we reverse the District Court's grant of summary judgment on Abramson's hostile wor k

environment claim.11

B. Religious Discrimination Claim

Abramson claims that she was terminated because her supervisors were motivated by discriminatory animus stemming from her insistence that she be allowed to observe her religious holy days. She alleges that W PC's

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11. We also note that the Court erred by conflating two of Abramson's legal claims, stating that the exact same evidence applied to both Abramson's religious discrimination claim and her h ostile work environment claim: "[I]f I do not find that .. . th e reason advanced were [sic] pretextual plaintiff has a difficult time est ablishing hostile work

environment . . . the same evidence works for both. " Dist. Ct. Op. at 77. The two claims have entirely different prima facie cases and often courts may consider evidence for one claim and not the oth er. For example, here, even if WPC could demonstrate that it had a l egitimate, nondiscriminatory reason to terminate Abramson, she would still have a

hostile work environment claim if she could establi sh the five prongs of the Andrews test, none of which are precluded by a failure to establish disparate treatment.

24various, allegedly non-discriminatory reasons for

terminating her employment were false and pretextua l.

Title VII explicitly protects employees from advers e employment actions on the basis of religion: "(a) I t shall be an unlawful employment practice for an employer--(1 ) to fail or refuse to hire or to discharge any individu al, or otherwise to discriminate against any individual wi th respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . r eligion . . . ." 42 U.S.C. S 2000e-2(a). As recognized by o ur sister circuits, though never explicitly recognized in our own jurisprudence, employees may assert two theories of religious discrimination:12 "disparate treatment," as alleged here, and "failure to accommodate." E.g. , Chalmers v. Tulon Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996 ); Mann v. Frank, 7 F.3d 1365, 1368-70 (8th Cir. 1993)

. Because the cases in our court dealing with religio us discrimination have routinely been of the "failure to accommodate" variety, we utilize a prima facie case here that differs from the one employed in our other rel igious discrimination cases. See, e.g., Shelton v. Univ. o f Med. & Dentistry of N.J., 223 F.3d 220, 224 (3d Cir. 2000)

.

To prove a claim under the "disparate treatment" th eory, the prima facie case and evidentiary burdens of an employee alleging religious discrimination mirror t hose of an employee alleging race or sex discrimination. Ch almers, 101 F.3d at 1017. Accordingly, we apply the familia r

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12. The reason for the two different types of claim s is that although

Title VII lists religion in the same list of protected ca tegories as race and

sex, the definition of "religion" in 42 U.S.C. 2000e(j) creates the "failure to accommodate" theory by including "all aspects of re ligious observance and practice, as well as belief, unless an employer demonstrates that he is unable to reasonably accommodate an employee's . . . religious observance or practice without undue hardship on th e conduct of the employer's business." The prima facie case, conside red as part of the same framework known as the McDonnell Douglas test , consists of three elements: "(1) he or she has a bona fide religious belief that conflicts with an employment requirement; (2) he or she infor med the employer of this belief; (3) he or she was disciplined for fail ure to comply with the conflicting employment requirement." Protos v. Volk swagen of America, Inc., 797 F.2d 129, 133 (3d Cir. 1986).

25burden-shifting framework of McDonnell Douglas Corp . v.

Green, 411 U.S. 792, 803-805 (1973). The plaintiff must demonstrate that she (1) is a member of a protected class, (2) was qualified and rejected for the position she sought, and (3) nonmembers of the protected class were trea ted more favorably. Goosby v. Johnson & Johnson Med., I nc., 228 F.3d 313, 318-319 (3d Cir. 2000) (citing Ezold v. Wolf, Block, Schorr & Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 1992)). After the plaintiff establishes a prima fac ie case, the employer must proffer a legitimate, non-discriminat ory reason for the adverse employment decision. Once th e employer does so, the plaintiff must demonstrate th at the proffered reason was pretextual. Goosby, 228 F.3d a t 319; see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 U.S. 133, 143 (2000).

Abramson also asserts a claim of religious discrimi nation under the NJLAD. In cases alleging disparate treatm ent, New Jersey courts have adopted a three-step test th at mirrors the Title VII inquiry:

(1) the complainant must come forward with s ufficient evidence to constitute a prima facie case of discrimination; (2) the employer must then s how a legitimate non-discriminatory reason for its decision; and (3) the complainant must be given the op portunity to show that the employer's stated reason wa s merely a pretext or discriminatory in its applicati on.

Chou v. Rutgers, the State Univ., 662 A.2d 986, 993 (N.J. Super. Ct. App. Div. 1995) (citing Dixon v. Rutgers , the State Univ. of N.J., 541 A.2d 1046, 1051 (N.J. 1988)). 13

Here, the District Court assumed, and the parties d id not dispute on appeal, that Abramson met all three requirements of the prima facie case: (1) religion is a protected category under Title VII and Abramson is an Orthodox Jew, (2) she was qualified for the positio n; and (3)

she was terminated while other non-Orthodox Jewish

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13. Under the NJLAD and Title VII, the analysis is essentially the same. Therefore, we will limit our discussion to Title VI I. In doing so, we note

that because Abramson's Title VII claim survives su mmary judgment,

her NJLAD claim does as well.

26professors were retained. The burden then shifted t o WPC

to proffer a legitimate, non-discriminatory reason for Abramson's termination. Goosby, 228 F.3d at 319. WP C offered many reasons for its decision. In fact, the reasons presented were ever-changing.

Seminoff wrote that after reviewing Abramson's rete ntion file, she did not recommend Professor Abramson for retention due to concern "regarding the quality of accomplishment in [teaching, research, scholarly ac tivity and service], with particular concern for the area of service." App. at 364. In Speert's memo to Abramson explaining his decision not to recommend her for reappointment, he wrote that her "overall record of contribution to the College and Community and poten tial contribution to the Department, Program and the Col lege in terms of present and future programs do not justify reappointment." App. at 979. Later, in response to Abramson's discrimination complaint to the NJDCR, W PC claimed she was deficient in the following areas: scholarship and teaching, interpersonal skills duri ng small group discussions, professional service on campus-w ide and department committees/activities, and her schol arly record. App. at 404.

Finally, in Speert's deposition, he gave other reas ons never previously mentioned, among them that Abramso n failed to create a concentration in technology and refused to work with administrators to create an Apple compute r lab. When pressed, Speert asserted that the main reason he did

not retain Abramson was that the folder that had be en presented to him contained evidence of her inabilit y to take leadership and guidance. App. at 1098. Upon further inquiry, he said that this was based on Abramson's failure to follow proper procedures in securing grants, and her failure to be involved in the NCATE accreditation p rocess. App. at 1099-110. Because WPC's burden at this stag e is merely a burden of production, we agree with the Di strict Court that WPC met its burden at this stage. See Ez old, 983 F.2d at 523 (referring to defendant's burden as burden of production).

The burden shifted to Abramson, who had to "point t o some evidence, direct or circumstantial, from which a

27factfinder could reasonably either (1) disbelieve t he

employer's articulated legitimate reasons; or (2) b elieve that an invidious discriminatory reason was more likely than not a motivating or determinative cause of the empl oyer's action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d C ir. 1994).

In Fuentes, we addressed just how much evidence of pretext a plaintiff needs to avert summary judgment . We held that "to avoid summary judgment, the plaintiff 's evidence rebutting the employer's proffered legitim ate reasons must allow a factfinder reasonably to infer that each of the employer's proffered non-discriminatory reasons was either a post hoc fabrication or otherwise did not actually motivate the employment action (that is, t he proffered reason is a pretext)." Id. (internal cita tions and emphasis omitted). Importantly, we qualified that s tatement with the following footnote:

[The plaintiff need not] cast doubt on each proffered reason in a vacuum. If the defendant proffer s a bagful of legitimate reasons, and the plaintiff man ages to cast substantial doubt on a fair number of them, the plaintiff may not need to discredit the rema inder. That is because the factfinder's rejection of som e of the defendant's proffered reasons may impede the employer's credibility seriously enough so t hat a factfinder may rationally disbelieve the rem aining proffered reasons, even if no evidence under mining those remaining rationales in particular is available.

Id., n.7. We then noted that it is not enough for a plaintiff to show that the employer's decision was wrong or mistaken, because the issue is whether the employer acted with discriminatory animus. Hence, to make a sufficient showing of pretext, Abramson must "demon strate such weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions" in WPC's reasons that "a reasonable factfinder could rationally find them `u nworthy of credence.' " Id. at 765 (citation omitted). And if Abramson can successfully demonstrate pretext, she need not present affirmative evidence of discrimination beyond her p rima facie showing if a rational factfinder could conclu de from the evidence of pretext that WPC's actions were discriminatory. Reeves, 530 U.S. at 147.

28WPC's reasons can be grouped into two categories: ( 1)

overall deficiencies in Abramson's scholarship, tea ching and service -- the explanations given to the NJDCR, which

are the same reasons Seminoff cited as the basis fo r not recommending retention; and (2) Abramson's failure to get along with supervisors and follow instructions, whi ch were the main (though not exclusive) reasons Speert list ed at his deposition.

Abramson refutes the first set of reasons by noting that Speert admitted in his deposition that these reason s were unfounded, saying that her folder gave evidence of" very good performance in both areas" of teaching and scholarship, App. at 468, and that her level of ser vice "would not have raised a concern," App. at 498. In addition, WPC admitted at oral argument that these reasons we re not

the actual basis for Abramson's termination. This admission alone might suffice to satisfy Abramson's burden, but we need not decide based solely on that admission, because Abramson's evidence also refutes the second set of reasons given later by Speert.

With respect to Abramson's alleged failure to follo w instructions insofar as she purportedly did not use proper protocols for proposed grants and programs, she arg ues that she was unaware of any protocols. App. at 147. She points to Speert's inability to identify at his dep osition where the protocols were outlined in either the pol icy manual or the faculty handbook. App. at 478-79. Abr amson presented testimony of the president of the faculty union stating there were not any protocols, App. at 160, and noted WPC's failure to include in the record any do cuments setting forth such protocols.

Abramson also attacked the legitimacy of WPC's reli ance on the fact that she failed to accept leadership fr om Seminoff and Wepner as grounds for her termination. She argues that because these two women were her allege d harassers, and because her poor relationship with t hem was directly related to their hostility toward her religion, her difficulty working with them should not be cred ited as a legitimate, nondiscriminatory reason for her term ination. She also submitted evidence of her positive contrib utions in teaching and scholarship (glowing teaching evaluati ons,

29letters to Speert praising her, a fellow professor' s

declaration), including evidence that she was well- versed in the use of Apple computers and did in fact teach he r students how to use them. App. at 132, 174. With re spect to her alleged failure to develop the concentration in technology, Abramson points to the specific referen ce by the Committee to the contrary, presenting evidence that the Committee praised her work in this area. App. at 23 9. In addition, Abramson focuses on the timing of the rea sons, stressing that two technology-related concerns were not mentioned until Speert's deposition.

Abramson also argues that the ever-changing nature of the proffered reasons can be considered as detracti ng from their legitimacy. We agree. If a plaintiff demonstr ates that the reasons given for her termination did not remai n consistent, beginning at the time they were proffer ed and continuing throughout the proceedings, this may be viewed as evidence tending to show pretext, though of cour se it should be considered in light of the entire record. See Fuentes, 32 F.3d at 765 (listing "inconsistencies" and "contradictions" in employer's reasons among ways p laintiff could show pretext); see also Waddell v. Small Tube Prods., Inc., 799 F.2d 69, 73 (3d Cir. 1986) (noting that d istrict court could "appropriately" have taken employer's inconsistent explanations for termination into acco unt in finding causation necessary to satisfy prima facie case of retaliatory discharge).

We find that based on the record as a whole, Abrams on has successfully "demonstrate[d] such weaknesses, implausibilities, inconsistencies, incoherencies, o r contradictions" such that "a factfinder could reaso nably . . . disbelieve the employer's articulated legitimate re asons." Fuentes, 32 F.3d at 765. And as the Supreme Court recently stated in Reeves, this alone could support the inference that WPC's motivation was discriminatory:

In appropriate circumstances, the trier of f act can reasonably infer from the falsity of the exp lanation that the employer is dissembling to cover up a discriminatory purpose. Such an inference is consistent with the general principle of evi dence law

that the factfinder is entitled to consider a party's

30dishonesty about a material fact as "affirma tive

evidence of guilt." Moreover, once the emplo yer's justification has been eliminated, discrimin ation may well be the most likely alternative explanat ion, especially since the employer is in the best position to put forth the actual reason for its decision . Thus, a plaintiff 's prima facie case, combined with sufficient evidence to find that the employer's asserte d justification is false, may permit the trier of fact to conclude that the employer unlawfully discri minated.

530 U.S. at 147-48 (internal citations omitted).

However, the factfinder does not need to rely on th at evidence alone. Abramson has also presented evidenc e from

which a reasonable factfinder could infer that "an invidious discriminatory reason was more likely than not a motivating or determinative cause of [WPC]'s action ." Fuentes, 32 F.3d at 764. The confrontations with Se minoff and Wepner, the very probative declarations of Abra mson's fellow professors, the laudatory faculty evaluation s and Committee report, and Wepner's Post-it note all pro vide strong evidence to support Abramson's claim.

We note that the District Court appears to have vie wed the evidence as a factfinder,14 which contributed t o the ruling. In addition, the District Court seems to ha ve viewed each piece of independently, rather than in its ent irety.15 "In

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14. For example, with respect to Abramson being cha rged for a sick day on a Jewish holiday when she was not scheduled to t each, and then having to complain for six months to have the error rectified, the

District Court "ascribe[d] that to administrative and bureau cratic bumbling." Dist. Ct. Op. at 69. And when discussing Seminoff ' s review of

Abramson's absences and attendance at conferences i n July 1992, the

District Court concluded that such conduct was not motivated by discriminatory animus, but rather, Seminoff 's"lead ership and part of doing the right thing as a manager." Id. at 63.

15. For instance, with respect to the Court's findi ng as to Wepner's comment to Abramson that "The trouble with you is t hat it doesn't show that you are Orthodox," the Court noted: "We are ta lking about whether this standing alone, per se without any tortured re asoning one way or another establishes a religious bias." Dist. Ct. Op . at 52-53 (emphasis added); see also id. at 55 (stating with respect to Wepner's Post-It note: "[T]his is offered as a stand-alone document to giv e us a vision of Shelly Wepner's mind-set with respect to Abramson.").

31determining the appropriateness of summary judgment , the

court should not consider the record solely in piec emeal fashion, giving credence to innocent explanations f or individual strands of evidence, for a jury . . . wo uld be entitled to view the evidence as a whole." Howley v . Town of Stratford, 217 F.3d 141, 151 (2d Cir. 2000). Acc ordingly, viewing the evidence in the light most favorable to the plaintiff, as is required when a defendant moves fo r summary judgment, and viewing the record as a whole , we conclude that Abramson's proof is sufficient to req uire that this claim be permitted to proceed to trial.

We note, also, that while the District Court relied heavily

on the fact that it found no evidence in the record demonstrating that Speert himself possessed discrim inatory animus toward Abramson, a rational jury could find that Speert did not make his decision in a vacuum. A

reasonable inference that could be drawn from the r ecord is that Speert was influenced by both Seminoff and Wep ner. In fact, Speert even stated in his deposition that before making his decision not to retain Abramson, he soug ht Seminoff 's counsel. App. at 487. Moreover, there i s an additional piece of evidence not mentioned in the D istrict Court opinion that supports our view of the record on this point. The record contains a memo sent on October 2 1, 1993, from Seminoff to Speert with a subject line t hat read: "Request for information - Professor Gertrude Abram son," thus supporting the conclusion that Speert had soug ht input on the decision to retain Abramson.16 App. at 378. Under our case law, it is sufficient if those exhib iting discriminatory animus influenced or participated in the decision to terminate. See Abrams v. Lightolier Inc ., 50 F.3d 1204, 1214 (3d Cir. 1995) (stating in ADEA case tha t if plaintiff 's supervisor participated in decision to terminate him, even though president of company formally term inated him, evidence of supervisor's age-related animus wo uld be relevant in determining if discriminatory motive at play); see also Russell v. McKinney Hosp. Venture, 235 F.3 d 219,

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16. In this memo, Seminoff explained certain aspect s of Abramson's retention file, including why Seminoff believed the committee vote was split, and a recitation of what Wepner's concerns w ere. At the end of the memo, Seminoff addresses "the allegation of religio us bias." App. at 379.

32226 (5th Cir. 2000) ("If the employee can demonstra te

that others had influence or leverage over the offi cial decisionmaker . . . it is proper to impute their discriminatory attitudes to the formal decisionmake r."); Santiago-Ramos v. Centennial P.R. Wireless Corp., 2 17 F.3d 46, 55 (1st Cir. 2000) (stating that "discriminator y comments . . . made by . . . those in a position to influence the decisionmaker" can be evidence of pretext); Gri ffin v. Washington Convention Ctr., 142 F.3d 1308, 1312 (D. C. Cir. 1998) ("[E]vidence of a subordinate's bias is relev ant where

the ultimate decision maker is not insulated from t he subordinate's influence."). As we noted in Roebuck v. Drexel University, 852 F.2d 715, 727 (3d Cir. 1988),"it is plainly permissible for a jury to conclude that an evaluati on at any level, if based on discrimination, influenced the decisionmaking process and thus allowed discriminat ion to infect the ultimate decision." Clearly, Wepner and Seminoff played a role in the ultimate decision to terminate Abramson, and their involvement thus makes their co nduct toward her relevant and probative of discriminatory

animus.

Considering the record before us, we find ample evi dence to support Abramson's religious discrimination clai m.

C. Retaliation Claim

Abramson's third and final claim is for retaliation . To advance a prima facie case of retaliation under Tit le VII and the NJLAD, a plaintiff must show that: (1) the empl oyee engaged in a protected employee activity;17 (2) the employer took an adverse employment action after or contemporaneous with the employee's protected activ ity; and (3) a causal link exists between the employee's protected activity and the employer's adverse actio n. See, e.g., Farrell, 206 F.3d at 278; see also Krouse v. Am. Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (d escribing the third requirement as a "causal connection"); Cr aig v.

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17. The actual language used by the New Jersey cour ts, with respect to the first prong, is that an employee must show that he or she engaged in protected activity known by the employer. Craig v. Suburban Cablevision, Inc., 660 A.2d 505, 508 (N.J. 1995) (e mphasis added).

33Suburban Cablevision, Inc., 660 A.2d 505, 508 (N.J. 1995).

We conclude that there is ample evidence of all thr ee elements in the record, and disagree with the Distr ict

Court's determination that Abramson did not make ou t a prima facie case.

1) Abramson engaged in protected activity.

On Oct. 22, 1992, Abramson wrote a letter to Speert

, stating:

I have lived as an Orthodox Jew all my life . . . . The non-discrimination policy of William Paterso n College precludes the need to defend either religiou s observances or pursuit of career goals. Neve rtheless, . . . it has been necessary for me to justif y my lifestyle. See, for example, the attached memo sent to Dean Seminoff in response to her request for an e xplanation of my "conferences/absences" when I submitte d a pro- forma travel request for an August conferenc e.

App. at 932. On October 12, 1993, Abramson once aga in wrote to Speert after Seminoff gave a negative recommendation to the Committee regarding her futur e employment with WPC. App. at 377. This letter compl ained that "Dean Seminoff 's bias against [Abramson] as a n Orthodox Jew overwhelms her professional judgment." Id. In addition to making her complaints known to Presi dent Speert, Abramson also complained to WPC's Affirmati ve Action Officer, Robie Cagnina. On September 22, 199 3, Abramson filed a written complaint of religious discrimination with Cagnina, stating: "I am being s ubjected to bias, discriminatory treatment, harrassment [sic ], and outright hatred because I live as an Orthodox Jew." App. at

311.

The District Court determined that Abramson failed to make out the first element, holding that she "did n ot articulate clearly and in a formal manner a religio us discrimination complaint . . . " and that her"[Octo ber]18

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18. The District Court actually stated "April 1992" letter, but given that no such letter exists in the record, and that durin g that same discussion it had previously referred to the October 1992 lett er, we assume the District Court simply misspoke and intended to say October.

341992 letter [was not] a clear enough indication tha t she was

raising religious discrimination as an issue. She w as [adverting] to it, but she was not flat out saying it." Dist. Ct. Op. at 75-76. Though we think that the October 1992 letter was sufficiently clear to have alerted Speert that Abramson felt she was being discriminated against,19 we need not rely

on that letter alone in order to find that Abramson fulfilled the first prong.20 This is because not only did Cag nina admit that she understood Abramson's September 22, 1993 letter to her to be an "informal" complaint of disc rimination, App. at 770, Speert also acknowledged that the Octo ber 12, 1993 letter from Abramson to him complaining of"bia s" toward her as an Orthodox Jew was quite clearly a complaint of discrimination, App. at 515.

Under our precedent, the letters Abramson wrote to Cagnina and Speert fall squarely within the require ments of the first prong of a retaliation claim. We have pre viously noted in the ADEA context that "we do not require a formal letter of complaint to an employer or the EEOC as t he only acceptable indicia of the requisite `protected cond uct' . . . ." Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 1995) (citing Sumner v. United States Postal Serv., 899 F.2d 203, 209 (2d Cir. 1990) (explaining that acceptable forms of protected activity under Title VII's analogous oppo sition clause include formal charges of discrimination"as well as informal protests of discriminatory employment prac tices, including making complaints to management, writing critical letters to customers, protesting against discrimination by industry or society in general, a nd expressing support of co-workers who have filed for mal

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19. Speert's statements in his deposition regarding this letter are inconsistent. First, he notes that he called Wepner after receiving this

letter and asked her "about the references to chall enge on the basis of religion," which imply that he realized she was all eging unfair treatment due to her religion. App. at 504. Yet, Speert also says that he did not consider the letter to be a complaint of religious discrimination. App. at 507. However, Seminoff did acknowledge in her depos ition that she was

aware that Abramson felt she was the victim of disc rimination during the 1991-92 academic year. App. at 604.

20. It is unclear from the District Court opinion w hy it did not consider any of Abramson's complaints besides the October 19 92 letter.

35charges")). Similarly, here, the complaints to WPC, whether

oral or written, formal or informal, are sufficient to satisfy the first prong of the prima facie case, provided t he complaints expressed Abramson's opposition to a pro tected activity under Title VII. Thus, we hold that the re cord contains a sufficient showing that Abramson engaged in protected activity.

2) Abramson suffered adverse employment action.

With respect to the second element -- i.e., adverse employment action, the District Court only focused on Abramson's claim that Speert treated her differentl y after she voiced her complaints, rather than considering the more obvious adverse employment action of her

termination. We hold that Abramson's termination cl early fulfills the second prong of the prima facie case f or a retaliation claim. In addition, Seminoff 's recomme ndation not to retain Abramson would also qualify as an adv erse employment action sufficient to meet this element.

3) A causal link exists between the protected activ ity

and the adverse action.

Given that the District Court viewed Speert's chang e in demeanor as the only adverse action, it dismissed t he issue of causation out of hand, stating that it "would ca ll for rank speculation on the part of the jury" to ask it to f ind retaliation. Dist. Ct. Op. at 76. But because the t wo instances of adverse action we examine are Seminoff 's

recommendation not to retain Abramson and Abramson' s ultimate termination, the analysis changes signific antly.

Based on our case law and the evidence adduced, Abramson has made a sufficient showing of the causa l connection required by the third prong of the prima facie case of retaliation. In Farrell, we recognized that our case law has focused on two main factors in finding the causal link necessary for retaliation: timing and evidence of ongoing antagonism. 206 F.3d at 281; see also Woods on v. Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 1997 ) ("[T]emporal proximity . . . is sufficient to estab lish the causal link . . . . [A] plaintiff can [also] establ ish a link

36between his or her protected behavior and subsequen t

discharge if the employer engaged in a pattern of antagonism in the intervening period."). Here, it c ould be argued that the proximity in time between Abramson' s last letter to Speert on October 12, 1993, and her being informed Speert would not recommend her for retenti on on October 25, 1993, is not conclusive because her dis charge

occurred in accordance with her annual review for retention. However, the timing factor is made more convincing by Cagnina's admission that she called S eminoff after meeting with Abramson in September 1993 and t old her that Abramson had "apprised [her] that she beli eved she had been discriminated against." App. at 770. S eminoff wrote a very negative recommendation against Abrams on soon after that phone call from Cagnina.

In any event, we need not rely on timing alone beca use Abramson has presented additional evidence to prove the causal nexus. First, she has demonstrated ongoing antagonism from her department head and the dean, a s we noted in our discussion of the facts above. Further , she introduced other types of circumstantial evidence r egarding WPC's proffered reasons for terminating her, which we have previously recognized as potentially probative of a causal connection. Farrell, 206 F.3d at 284 ("[A] plaintif f may rely upon a broad array of evidence to [illustrate a cau sal link]."). For instance, we have noted that a plaint iff may show that her employer gave inconsistent reasons fo r terminating her. See Waddell, 799 F.2d at 73 (stati ng that district court could "appropriately" have taken inc onsistent explanations into account in finding causation nece ssary to satisfy prima facie case). Revealing discrepancies in the proffered reasons can also constitute evidence of t he causal link. See Farrell, 206 F.3d at 285-86 (listing plai ntiff 's attacks on validity of reasons given). Here, as we found in our discussion of the discrimination claim, Abramso n has succeeded in both casting doubt on the reasons WPC proferred for her termination, and in demonstrating that those reasons were vague and inconsistent. In light of this evidence, coupled with the "ongoing antagonism" ref lected in the record, including Speert's change in demeano r after Abramson complained of discrimination,21 we find t hat the

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21. The District Court did not find this allegation persuasive, instead crediting Speert's explanation that the reason he d id not interact with

37record contains ample proof of a causal connection.

Therefore, Abramson has presented sufficient eviden ce to meet all three prongs of a prima facie retaliation claim so as to withstand summary judgment, and we will reverse the District Court's ruling on this claim.22

III. Conclusion

As we stated in Farrell,

We recognize that different inferences might be drawn from the evidence presented in the record. O n summary judgment, however, when viewing the sufficiency of the prima facie case, our rol e is not to act as fact finder. Instead, we must consider th e evidence taken in the light most favorable to the non -movant and determine whether [the plaintiff] can sh ow the causation required . . . .

206 F.3d at 286. Here, there is ample evidence from which a reasonable jury could draw inferences establishin g all three of Abramson's claims. Accordingly, we will RE VERSE the District Court's order granting summary judgmen t in

favor of WPC on Abramson's claims of hostile work environment, religious discrimination and retaliati on, and REMAND for further proceedings.

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Abramson was because it was his practice to avoid h aving any contact with anyone being considered for tenure. App. at 11 5. In doing so, the

District Court failed to consider the evidence in t he light most favorable

to Abramson.

22. Needless to say, our opinion should not be inte rpreted as expressing any view as to whether Abramson was in fact subject ed to religious discrimination or retaliation. We hold only that th ese questions cannot properly be decided at summary judgment and must be submitted to the

trier of fact.

38ALITO, Circuit Judge, concurring.

I write separately to add a brief explanation of my understanding of the basis for holding that the sum mary judgment record is sufficient to permit the plainti ff 's religious harassment claim to go to trial. Harassme nt is actionable under Title VII and the New Jersey Law A gainst Discrimination only if it is so severe or pervasive that it alters the terms or conditions of the plaintiff 's employment. See Faragher v. City of Boca Raton, 524 U.S. 775, 7 86 (1998); Taylor v. Metzger, 706 A.2d 685, 688-89 (N. J. 1998). Offensive comments and actions that do not r ise to

this level are insufficient. Id. This is an exactin g standard, and William Paterson College argues that the eviden ce in this case does not meet it. The College relies on H eitzman v. Monmouth County, 728 A.2d 297 (N.J. Super. Ct. A pp. Div. 1999), in which certain anti-Semitic remarks w ere held not to have altered the conditions of employment, a nd the College maintains that "Abramson has not demonstrat ed conduct beyond `the ordinary tribulations of the wo rkplace' which is so extreme as to amount to a change in the terms and conditions of employment." Appellee's Br. at 40 (quoting Faragher, 524 U.S. at 788). The Court resp onds to the College's argument by saying that "[t]he conduc t in the instant case could be said to go beyond `simple tea sing, offhand comments, and [non-serious] isolated incide nts.' " Maj. Op. at 23 (quoting Faragher, 524 U.S. at 788) (brackets in majority opinion) (internal quotation marks and citations omitted in majority opinion). I agree with the Court's statement, but I think that it is necessary to explain why the conduct alleged in this case "could be said to go beyond . . . ."

The reason is that a reasonable trier of fact could infer that officials of the College intentionally pressur ed the plaintiff to violate the dictates of her faith in o rder to keep her job. As the brief of an amicus curiae observes:

When an employer deliberately reschedules im portant meetings for Friday afternoons, the message to an Orthodox Jewish employee is clear as a bell. Such rescheduling tells the employee that continu ed

observance of his or her faith will be viewe d as incompatible with adequate job performance. Repeated

39requests that work be done on Saturdays or J ewish

holidays -- or telephone messages left on a Jewish religious holiday demanding an `immediate' r esponse -- are aimed directly at an employee's religiou s observance. Criticism of an employee's effor t to

reconcile his or her schedule with the obser vance of Jewish holidays delivers the message that th e religious observer is not welcome at the place of empl oyment. 1

Intentionally pressuring a person to choose between faith

and career is more "severe" and has a more direct e ffect on the conditions of employment than the sort of offen sive remarks at issue in Heitzman. While case law provid es only limited protection for employees whose religious ob ligations conflict with neutral job requirements, see Employm ent Div., Dep't of Human Resources of Oregon v. Smith , 494 U.S. 872 (1990); Trans World Airlines, Inc. v. Hardison, 432 U.S. 63 (1977), Title VII does not permit an employer to manipulate job requirements for the purpose of putt ing an employee to the "cruel choice" between religion and employment. Braunfeld v. Brown, 366 U.S. 599, 616 ( 1961) (Stewart, J., dissenting). It is for this reason, i n my view, that the summary judgment record is sufficient to s upport the plaintiff 's religious harassment claim.

A True Copy:

Teste:

Clerk of the United States Court of Appeals

for the Third Circuit

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1. Brief for Amicus Curiae National Jewish Commissi on on Law and Public Affairs, at 4.

40