2001 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

8-3-2001

Abramson v. William Paterson

Precedential or Non-Precedential:

Docket 00-5026

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Recommended Citation

"Abramson v. William Paterson" (2001). 2001 Decisions. Paper 173.

http://digitalcommons.law.villanova.edu/thirdcircuit_2001/173
Filed August 3, 2001 

UNITED STATES COURT OF APPEALS 

FOR THE THIRD CIRCUIT 

NO. 00-5026 

GERTRUDE W. ABRAMSON, 

 Appellant 

v. 

WILLIAM PATERSON COLLEGE OF NEW JERSEY 

On Appeal from the United States District Court 

for the District of New Jersey 

(D.C. Civil No. 95-cv-04353) 

District Judge: Honorable Katharine S. Hayden 

Argued January 25, 2001 

Before: NYGAARD, ALITO, and RENDELL, Circuit Judges, 

(Filed: August 3, 2001) 

 Phyllis Gelman 

 Lindsay N. Feinberg [ARGUED] 

 Gelman & Feinberg 

 60 East 42nd Street, Suite 1060 

 New York, NY 10165 

 Counsel for Appellant 

 Gertrude W. Abramson 
 Nathan Lewin [ARGUED] 

 Miller, Cassidy, Larroca & Lewis 

 2555 M Street, NW, Suite 500 

 Washington, DC 20037 

 Counsel for Amicus-Appellant 

 National Jewish Commission 

 on Law and Public Affairs ("COLPA") 

 Bruce J. Solomon [ARGUED] 

 Office of Attorney General of 

 New Jersey 

 Division of Law 

 Richard J. Hughes Justice Complex 

 Trenton, NJ 08625 

 Counsel for Appellee 

 William Paterson College of 

 New Jersey 

OPINION OF THE COURT 

RENDELL, Circuit Judge. 

Gertrude Abramson appeals the summary judgment 

granted to her former employer, William Paterson College 

("WPC"),1 against whom she filed hostile work environment, 

religious discrimination, and unlawful retaliation claims 

under Title VII and the New Jersey Law Against 

Discrimination ("NJLAD"). Abramson, former tenure-track 

Associate Professor in the Department of Curriculum & 

Instruction ("C&I") of the School of Education at WPC, 

claimed she was subjected to harassment and ultimately 

terminated, both because of her Orthodox Jewish beliefs 

and practices, and because she complained of WPC's 

religious discrimination against her. The District Court 

granted summary judgment in favor of WPC on all claims, 

and Abramson now appeals. We conclude that Abramson

established a prima facie case for all three causes of action, 

and that the District Court erred in the way that it 

_________________________________________________________________ 

1. WPC, now the William Paterson University of New Jersey, is an 

undergraduate and graduate educational institution, and is a state 

college of New Jersey. 

 2 
considered the evidence and applied certain legal principles. 

We will therefore reverse the grant of summary judgment 

and remand for further proceedings. 

I. 

A. Facts 

Most of the underlying facts are undisputed. Where there 

is a dispute, we view the facts in the light most favorable to 

the plaintiff. Drinkwater v. Union Carbide Corp. , 904 F.2d 

853, 854 n.1 (3d Cir. 1990). WPC hired Abramson, an

Orthodox Jew, for one year as a tenure-track Associate 

Professor, effective September 1, 1990. Abramson has a 

Doctor of Education degree in Communications, Computing 

and Technology from Columbia University, and New York 

State teacher certifications in elementary education and 

early childhood education. In 1990, she had been teaching 

for ten years at the college level, had published in peerreviewed academic publications, and had a national 

reputation in education technology. At the time WPC hired 

her until her termination, Abramson was the only Orthodox 

Jew employed in the School of Education at WPC. 

At the start of her first year at WPC, Abramson informed 

her Department Chair, Jim Peer, that she would not be able 

to teach on Jewish holidays. He suggested that she work 

out her schedule with her students, which she did, and the 

days she missed on account of Jewish holidays were not 

counted as sick days. App. at 134-35. 

The Review Process 

As part of WPC's written policies and procedures 

regarding retention and tenure, an untenured professor's 

academic performance was to be reviewed on an annual 

basis. New Jersey state law does not allow a state college to 

offer tenure to a faculty member upon appointment, but 

does permit it to offer tenure to a professor after two years 

of employment upon a showing of extraordinary 

circumstances. N.J. Stat. Ann. S 18A:60-9 (West 1993). 

Barring exceptional circumstances, an untenured faculty 

 3 
member must serve five years before being considered in 

the fifth year for an award of tenure made effective in his 

or her sixth year of employment. Id. atS 18A:60-8. 

Retention and tenure decisions in Abramson's 

department are first considered by the Curriculum and 

Instruction Retention Committee ("the Committee"). The 

criteria used to determine retention and tenure, as set forth 

in WPC's written retention policy, are as follows: (1) 

professional performance; (2) professional growth; and (3) 

potential contributions to the academic department and the 

University in terms of present and future programs. The 

Department Chair is an ex-officio member of the 

Committee. Though not a voting member, the Chair does 

choose whether or not to sign the Committee's 

recommendation. App. at 707. By not signing a 

recommendation, the Chair indicates a lack of support for 

the Committee's evaluation. App. at 708. The Dean then 

makes a recommendation to the Provost. Finally, the

President of WPC makes a determination whether or not to 

recommend retention (or tenure, where applicable) to the 

Board of Trustees. The WPC Board of Trustees then decides 

whether to retain and/or grant tenure based on the 

recommendation of the President. 

Abramson's First Two Years at WPC 

Abramson's first "annual" review occurred shortly after 

she began teaching at WPC, and on November 7, 1990, the 

Committee "strongly" recommended the retention of 

Abramson for the 1991-92 academic year. App. at 203. The 

Committee applauded her teaching, scholarly achievement 

and service, and noted Abramson's ability to teach many 

C&I courses, opining that "[t]his flexibility makes her most 

valuable for future planning." Id. It went on to say that the 

C&I Department "has long been in need of just such 

expertise as Professor Abramson brings . . . [WPC] stand[s] 

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

In the fall of 1991, during Abramson's second year at 

WPC, Nancy Seminoff became the Dean of WPC's School of 

Education, and in October 1991, she appointed Shelley 

Wepner to chair the C&I Department. On October 29, 1991, 

 4 
the Committee recommended the retention of Abramson for 

the 1992-93 academic year, and Dean Seminoff concurred. 

The Committee noted Abramson's significant service, top 

teaching ratings by her peer evaluators, and exemplary 

scholarship. It stated that "Professor Abramson exemplifies 

WPC's direction for the future." App. at 207. Once again, it 

strongly recommended her retention, and Wepner signed 

the recommendation. President Speert then recommended 

Abramson's reappointment to the Board of Trustees. App. 

at 204. 

Abramson's Third Year at WPC 

During Abramson's third year, she began to experience 

difficulties. First, Abramson was charged for sick days for 

each day of work she missed due to Jewish holidays,

despite the fact that WPC was closed on several Christian 

holidays. App. at 13, 135, 159. In June 1992, after

Abramson submitted routine forms in connection with a 

professional conference she would be attending during that 

summer, Seminoff required Abramson to meet with her to 

account for the number of conferences and absences in the 

prior year. Linda Dye, the head of the faculty union, stated 

that this was "unprecedented" in a situation where a 

professor's absences had not exceeded the standards set by 

Human Resources. App. at 157-58. 

In addition, Abramson was charged a day of sick leave for 

a Jewish holiday on October 20, 1992, when she was not 

even scheduled to teach. App. at 250, 677. After protesting 

orally and in writing, this error was corrected six months 

later. App. at 685. Then, in November 1992, during a C&I 

Department meeting called to plan the 1993-94 class

schedules, Abramson stated her intention to schedule her 

classes so that they did not conflict with the fall Jewish 

holidays. According to Abramson, "Wepner started to

scream that she was tired of hearing about [Abramson] and 

[her] holidays; when [Abramson] quietly tried to explain 

[her]self, Chair Wepner yelled that [Abramson's] holidays 

were . . . personal private issues and that she did not want 

them mentioned at the scheduling meetings." App. at 137. 

During the fall of 1992, at a Technology Committee 

 5 
meeting chaired by Seminoff, Wepner suggested that 

Abramson, along with others, come in on a Saturday to 

prepare a technology room. Wepner, who is Jewish herself, 

made this suggestion while fully aware that Abramson does 

not work on Saturdays. Abramson told the group that she 

could not attend because of the Jewish Sabbath. 2 

Thereafter, Wepner continually questioned Abramson about 

her lack of availability on Friday nights and Saturdays. 

App. at 137-38. 

On October 12, 1992, the Committee once again 

recommended Abramson for retention for the 1993-94 

school year. The evaluation highlighted the "dynamic" 

nature of Abramson's discipline, described her as a"caring 

educator" and "reflective teacher," noted she engaged in a 

"wide range of scholarly activity" and was"active in several 

national conferences in her field." App. at 225-28. This 

time, however, the Committee's evaluation noted some 

"minor concern about her teaching performance and her 

contribution to department activities . . . ." App. at 231. 

However, it also "recognized her numerous scholarly

pursuits and professional contributions" and recommended 

her retention "in light of the department's present and 

future needs for a technology educator." Id. Wepner signed 

the recommendation. Seminoff, noting "an imbalance in 

productivity" due to Abramson's focus on scholarly activity, 

expressed that she had "serious concerns about Dr. 

Abramson's reappointment," and recommended Abramson

"with some reservation." App. at 929-30. 

On October 22, 1992, Abramson wrote a seven-page 

letter to President Speert, stating that she took"strong 

exception to the negative tenor and substance of the 

recommendations made for [her] retention by[her] 

department and Dean Seminoff." App. at 1253. She went on 

to write, "I have lived as an Orthodox Jew all my life . . . . 

The non-discrimination policy of William Paterson College 

precludes the need to defend either religious observances or 

pursuit of career goals." Id. Abramson attached the July 12, 

_________________________________________________________________ 

2. In conformity with her religious beliefs, Abramson does not work, use 

the telephone or drive a car from sundown on Friday until approximately 

one hour after sundown on Saturday. 

 6 
1992 letter she had sent to Seminoff in response to the 

Dean's request for an explanation of her absences. App. at 

1261. She received no response from Speert, and she has 

asserted that his demeanor toward her changed 

dramatically after that. Instead of being friendly as he was 

previously, he "stopped speaking to [her] and would turn on 

his heel and walk away from [her] if [they] happened to 

meet on campus." App. at 140. On October 30, 1992, 

President Speert informed Abramson that he intended to 

recommend her for retention for a fourth year. App. at 931. 

In a March 1993 meeting, Wepner scheduled an annual

C&I Department lunch for May on a Jewish holiday, even 

after Abramson informed her she could not attend. App. at 

137. On April 1, 1993, Wepner's secretary commented to 

Abramson, in the presence of Wepner, that "other faculty 

members are complaining about the way your religious 

absences inconvenience them"; Wepner did not comment. 

Id. 

On April 27, 1993, Abramson sent a letter to Speert, the 

Provost, her union representative, the Chair of the Faculty 

Senate, and the entire Board of Trustees. App. at 939. She 

attached the letter she had written to Seminoff after their 

meeting on March 23, 1993, a meeting that Abramson said 

was another event in a series of "continued and 

unwarranted negativism toward [her]." App. at 940. The 

attached letter refuted Seminoff 's suggestions and

criticisms regarding Abramson's teaching, leadership, 

professionalism, and collegiality, and said it was written to 

"counter the negative `facts' [Seminoff] continue[d] to 

disseminate about [her]." App. at 939. The letter accused 

Seminoff of having "ill-concealed hostility" toward

Abramson and of having a management style that "stifles 

collegiality, deprives the departments and the college of 

faculty creativity . . . and reduces innovative and effective 

teaching." App. at 947. Abramson testified in her deposition 

that this letter was sent to "challenge the judgment of the 

Dean." App. at 1070. 

On April 28, 1993, Provost Smith wrote a letter to 

Abramson stating that it was highly unprofessional for her 

to circulate such a letter so widely. App. at 1072-73. 

Abramson, however, continued to circulate letters that were 

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

wrote a letter to Seminoff attacking her for "applying an 

administrative style that is autocratic and confrontational 

and is based upon an outmoded, discredited, paternalistic, 

approach to management." App. at 1076-77. Abramson's 

letter added, "I have not seen any substantive evidence that 

you are a constructive administrator." App. at 1077. 

Abramson sent copies to Speert and Provost Smith. 

On May 6, 1993, at a Technology Committee meeting, 

Seminoff suggested holding a technology conference on a 

Saturday. Abramson explained that she could not 

participate due to the Sabbath. According to Abramson, 

Seminoff screamed at her, saying that if Abramson would 

not run a conference for her on Friday night and Saturday, 

nothing Abramson did would have any value. App. at 137- 

38, 157. And during the 1993-94 academic year, Wepner 

suggested that faculty meetings be moved from Tuesdays, 

the day when they had been held for many years, to Friday 

afternoons, which would conflict with Abramson's 

observance of the Sabbath. App. at 163-64. 

Final Review for Retention 

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

Committee voted to recommend Abramson's retention for a 

fifth year, and for her early tenure. The Committee's report 

stated the following: 

 Dr. Abramson is a skilled teacher and instructional 

 designer in the interactive classroom setting. . . . 

 Students also recognize Dr. Abramson's excellence as a 

 teacher/educator. . . . She encourages students to 

 listen, think, and communicate and to develop their 

 intellectual skills. . . . Dr. Abramson's working 

 relationships with faculty are flavored with respect. She 

 is genuinely considerate and thoughtful of others and 

 is willing to assist in any way possible. . . .[She] does 

 her share to further educational and professional 

 meetings. . . . She is a well rounded professional .. . 

 who represents the college admirably . . . . On campus, 

 Dr. Abramson has distinguished herself in a variety of 

 roles. . . . Not only is she a fine scholar, but she is a 

 valued colleague as well. 

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

had an outstanding publication and speaking record, and 

served on many university committees. It stated that she 

had "restructured and expanded the graduate 

concentration in technology education . . . ." App. at 239. 

It also discussed the future goals of the institution with 

respect to her field of expertise, finding that she was in a 

position to help WPC attain those goals. It stressed 

Abramson's networking abilities and her status as a

"nationally recognized leader in her field," calling her "a 

valuable resource and an asset to the College." Id.

The two other voting members of the committee, Aitken 

and Coletta, were not present at the meeting. Wepner was 

also absent. On September 23, 1993, Aitken, Coletta and 

Wepner appended comments to the Committee's 

recommendation. Aitken wrote that she had "reservations 

regarding the [C]ommittee's recommendation," while Coletta 

and Wepner noted that they did "not agree with the 

Committee's recommendation." App. at 974. 

Seminoff then wrote a memorandum to the Provost, 

stating that she did not recommend Abramson's retention. 

She cited concerns with three of the four applicable criteria 

for retention and tenure -- teaching, research/scholarly 

activity and service. App. at 975. Speert then undertook an 

analysis of Abramson's retention folder. 

On September 22, 1993, Abramson wrote a letter to 

Robie Cagnina, WPC's Affirmative Action Officer, stating in 

part: "This is the . . . third [year] in which religious 

discrimination has been directed at me. I am being 

subjected to bias, discriminatory treatment, harrassment 

[sic], and outright hatred because I live as an Orthodox 

Jew." App. at 311. At the bottom of the letter, Cagnina 

wrote the following: "September 22, 1993 Met with Dr. 

Abramson regarding this issue; discussed options for the 

filing of a complaint. Choice was to file with the Division of 

Civil Rights. RSC" Id. 

On October 13, 1993, Wepner complained to Abramson,

during a lengthy attack on her professional contribution 

during a graduate curriculum meeting: "[T]he trouble with 

you is that it doesn't show that you are Orthodox." App. at 

 9 
138. During the following week, Abramson sent a letter to 

Speert, asking that, in light of Seminoff 's negative 

recommendation, he read her retention materials carefully. 

She wrote: "It appears that [Seminoff 's] bias against me as 

an Orthodox Jew overwhelms her professional judgment." 

App. at 377. On October 25, 1993, nearly two weeks later, 

Speert wrote Abramson a letter informing her that he did 

not intend to recommend her reappointment. App. at 977. 

He later expressed the reasons for his decision in a 

memorandum, sent to her on November 12, 1993. It 

appears clear from the memorandum that his reasons 

differed from Seminoff 's. In Speert's opinion, Abramson's 

"potential contribution to her Department, Program and the 

College . . . [did] not justify reappointment." App. at 979. 

Abramson then went through an appeals process, but 

Speert reached the same conclusion once again. In his 

deposition, he explained his reasons for not retaining 

Abramson. Speert said that the main reason was that the 

retention folder presented to him contained evidence of her 

inability to take leadership and guidance. App. at 1098. He 

clarified that the referred-to evidence involved issues 

related both to grants and to the accreditation visit by the 

National Council on the Accreditation of Teachers of 

Education ("NCATE").3 He also noted that Abramson had 

failed to create a concentration in technology and refused to 

work with administrators to create an Apple computer lab. 

_________________________________________________________________ 

3. Speert testified in his deposition that Abramson dealt with a grant for 

Merck and a program with the Stevens Institute of Technology in a way 

that was "not consonant with college processes." App. at 1102. He stated 

that "her view with respect to the [Merck] grant was limiting and did not 

take into account either circumstances at the school level or college 

level 

or any level." App. at 1101. With respect to a proposed program with 

Stevens, he said that "Dr. Abramson's response to the issue was 

centered about individuals and not centered about the program, the 

program gains with respect to the college and the college's cost benefit 

analysis with respect to that program." App. at 1107. Regarding the 

NCATE accreditation, Speert testified that he was referring to 

Abramson's complaints about not being placed on the steering 

committee, and her refusal to participate in the preparation for the 

accreditation visit after being excluded from the steering committee. App. 

at 1107-09. 

 10 
Other Evidence Offered 

Abramson also offered affidavits from several WPC faculty 

members. The affidavit of Linda Dye, WPC professor and 

president of the faculty union from 1993-94, supported 

many of Abramson's allegations. She stated that Speert had 

refused to say at Abramson's appeal meeting why she was 

terminated, App. at 159, and also that the reasons given by 

WPC could all be refuted, App. at 160-61. She declared the 

following: 

 All but three or four faculty members in the School of 

 Education had difficulties with Dean Seminoff. Even 

 within that context, Dean Seminoff 's conduct toward 

 Professor Abramson stood out for its personal hostility. 

 In contrast to her treatment of other faculty members, 

 Dean Seminoff required Professor Abramson to justify 

 every one of her actions in each and every area of 

 Professor Abramson's work . . . . Dean Seminoff 's 

 criticisms of Professor Abramson's performance were 

 without basis . . . . Especially notable was her 

 insistence that Professor Abramson be excluded from 

 the committee preparing the School of Education for an 

 accreditation visit by a team from [NCATE], since 

 Professor Abramson had special expertise as she was a 

 member of NCATE . . . . Seminoff 's unfair criticism of 

 Professor Abramson's performance and her hostile 

 conduct toward Professor Abramson were motivated by 

 her disapproval of Professor Abramson's strict 

 adherence to Jewish religious laws . . . . 

App. at 156-57. 

The affidavit of Stanley Wollock, a tenured professor in 

Abramson's department, noted that Friday afternoon 

meetings were changed because "Wepner was aware that 

Professor Abramson was unable to attend . . . because of 

her observance of the Jewish Sabbath." App. at 163. He 

also recounted that Wepner had stated that Abramson

"would not be fulfilling her duties" if she did not attend the 

faculty meetings. App. at 164. In addition, he noted that 

Dean Seminoff said "you people" to Abramson more than 

once and treated her "much more harshly than she treated 

other faculty members." Id. According to his observations, 

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

her religion. App. at 165. 

Doris White, a tenured professor in Abramson's 

department who was a member of the Retention and 

Tenure Committee in the Fall of 1993, stated, "Dean

Seminoff was prejudiced against Jews," assigning both 

Abramson and another untenured Jewish faculty member 

to work on many Friday nights, though White was never 

asked to teach on a Friday night. App. at 168. She also 

declared that faculty meetings were only scheduled on 

Fridays while Abramson was in the C&I Department. Id. 

Additionally, White stated that Abramson had more 

technological expertise and had published more than the 

rest of the faculty in the C&I Department. App. at 167. 

Finally, Abramson submitted the declaration of her 

former colleague, Cordelia Towney. Abramson and Towney 

had both been on the faculty at a different college earlier in 

their careers, and had worked on a book together while 

Abramson worked at WPC. WPC had also employed Towney 

for one semester. Towney stated that "[t]he religious 

harassment which [Abramson] suffered at WPC made her 

feel like a beaten puppy. She became sallow, stooped, [and] 

she looked broken." App. at 174. 

In addition to these declarations and her own affidavit, 

Abramson submitted a Post-It note written by Wepner that 

was contained in Abramson's file. App. at 445. The note 

said, "If you are dealing with grad program teachers - work 

all day -- Logical for any working class college to have 

conferences on Sat[urday] - needs of institution conflict 

with her practicing religion -- go. Conferences on Saturday 

to deal." Id. Abramson also introduced into evidence 

extremely positive student evaluations she had received 

during the 1992-93 academic year, faculty evaluation forms 

completed between April 1992 and May 1993 praising her 

work,4 as well as ten letters written to Speert by students 

and faculty members who strongly supported her retention. 

App. at 183-85, 347-62, 380-93. 

_________________________________________________________________ 

4. One peer review was much more critical of Abramson than the others; 

this was written by Wepner. 

 12 
B. Procedural History 

On November 3, 1993, Abramson filed a complaint of 

employment discrimination with both the Equal 

Employment Opportunity Commission ("EEOC") and the 

New Jersey Division on Civil Rights ("NJDCR"). App. at 141. 

After filing a grievance with her union that was eventually 

denied, Abramson filed a complaint of religious 

discrimination and retaliation with the NJDCR and the 

EEOC on September 2, 1994. After receiving a right to sue 

letter from the EEOC, Abramson commenced this action in 

the United States District Court for the District of New 

Jersey on August 17, 1995. 

The District Court delivered its summary judgment ruling 

from the bench on December 10, 1999, disposing of the 

issues raised in a lengthy oral opinion that was 

interspersed with dialogue between the Court and counsel. 

The Court entered its order on December 14, 1999, 

granting summary judgment in favor of WPC on all claims. 

In its oral opinion, the District Court briefly considered 

Abramson's hostile work environment claim, rejecting it 

because it found that Abramson did not present evidence 

that would satisfy the prima facie case. The Court focused 

primarily on Abramson's failure to make out the first 

element of the prima facie case: intentional discrimination 

on the basis of religion. In its view, there were too many 

other explanations for Wepner's conduct, making the

religious animus explanation unreasonable. Dist. Ct. Op. at 

78-79. Furthermore, it stated that the "same evidence 

works for both" discrimination and hostile work 

environment claims, and indicated it was considering 

Abramson's inability to prove pretext in its analysis of her 

hostile work environment claim. Id. at 77-78. Overall, it 

found that "at best, [Abramson] raises a scintilla of 

evidence." Id. at 83. 

The vast majority of the District Court opinion addressed 

Abramson's religious discrimination claim. The District 

Court was unpersuaded by the evidence relied on by 

Abramson to support her claim, though it did not refer at 

all to the declarations submitted by Abramson's fellow 

professors. It stated that because the Committee voted to 

grant Abramson tenure, the focus of the inquiry should be 

 13 
on whether President Speert failed to make a tenure

decision because of discriminatory animus. It found that 

there was no evidence of such animus. Id. at 81-82. The 

Court held that "at best [Abramson] raises a scintilla of 

evidence in the overall inquiry, by virtue of what the record 

reveals concerning the mind of Shelly Wepner." Id. at 83. In 

addition, the Court found that Abramson had failed to 

establish that WPC's reasons for terminating her were 

pretextual. Id. 

The District Court dismissed the comments made about 

Abramson's religion as "stray remarks." Id. at 30. The Court 

opined that there was a lack of evidence that people acted 

negatively toward Abramson because of her religious

absences. Id. at 58-59. The Court expressed its belief that 

Wepner was "hotheaded" and that her bad treatment of 

Abramson was unrelated to religion. Id. at 59-60, 78. 

The District Court then examined Wepner's statement to 

Abramson ("The trouble with you is that it doesn't show 

that you are Orthodox.") at length, acknowledging that it 

sounded "angry" and "confrontative"[sic]. Id. at 52. 

However, after reading Wepner's deposition, the Court 

"gleaned from that a position that [Wepner] as a Jew has, 

which is that she felt that her own religious practices were 

down-played [sic] and low-keyed by her, as a matter of her 

dealing with the issue of possible Antisemitism . . . ." Id. at 

53. The District Court asked whether or not Wepner's 

remark, "standing alone . . . establishes a religious bias," 

and found that "[t]here's just no way I find for someone to 

hear Shelly Wepner's remark and draw any kind of an

inference that that per se remark is evidence of 

discriminatory animus towards Abramson . . . ." Id. at 53- 

55. Instead, it determined that it only showed a"clear 

difference of opinion with respect to Abramson's open 

acknowledgment and requests for acknowledgment of her 

Orthodoxy . . . ." Id. at 55. 

The District Court then addressed Wepner's Post-It as a 

"stand-alone document to give us a vision of Shelly

Wepner's mind-set [sic] with respect to Abramson." Id. The 

Court was persuaded that the note "establishes even more 

strongly that Wepner moved from a difference of opinion 

with plaintiff regarding the practice of her religion and 

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

Abramson was not . . . going to meet the needs of the 

institution." Id. at 56. However, the Court found that 

Abramson had failed to show the requisite nexus between 

Wepner's Post-It and WPC's decision not to retain her 

because it was "not contextually established where, when 

and how this Post-[I]t played a role in anything other than 

Wepner's own dossier regarding the plaintiff." Id. Although 

the Court noted that it was possible that Wepner somehow 

influenced Speert, it found that a possibility was 

insufficient: "there has to be proof of a determinative factor, 

i.e. factor of discrimination. Not the possibility." Id. at 57. 

The District Court was similarly unconvinced that 

Abramson's absence from Friday faculty meetings affected 

her job performance, and it also rejected the argument that 

the rescheduling of faculty meetings was done in an effort 

to harass Abramson or to discriminate against her. 

Furthermore, the Court did not believe that Seminoff 's 

request that Abramson account for her absences was 

related to religion. It ascribed her being charged with a sick 

day on a Jewish holiday when she was not scheduled to 

teach, and the six-month delay in correcting it, to

"administrative and bureaucratic bumbling." Id. at 69. The 

Court stated that it was considering the record as a whole, 

and in doing so, it found that Abramson did not disprove 

the legitimate nondiscriminatory reason WPC gave for not 

retaining Abramson. Id. at 83. 

In rejecting Abramson's retaliation claim, the District 

Court held Abramson did not give "a clear enough 

indication that she was raising religious discrimination as 

an issue." Id. at 76. The Court considered only Speert's 

alleged change in demeanor when evaluating the adverse 

employment action prong of the retaliatory inquiry, and 

held that "whatever Speert did or didn't do with respect to 

friendliness would call for rank speculation on the part of 

the jury, if that jury was asked to say or to find that there 

was retaliation." Id. The District Court did not consider 

Abramson's ultimate termination as an adverse 

employment action. 

Abramson appeals, arguing that the District Court erred 

in dismissing her Title VII and NJLAD religious 

 15 
discrimination, hostile work environment, and retaliation 

claims. She argues that she established a prima facie case 

for each of her claims. First, she argues that she has 

recounted sufficient proof of all elements of the prima facie 

case required for a hostile work environment claim. With 

respect to her religious discrimination claim, Abramson 

stresses that she submitted ample evidence that her

supervisors were motivated by discriminatory animus

stemming from her insistence that she be allowed to

practice her Orthodox Jewish beliefs. She also argues that 

she presented credible evidence that WPC's reasons for 

terminating her were pretextual. With regard to her

retaliation claim, Abramson contends that the record 

clearly reflects that she made her supervisors aware that 

she was complaining of discrimination, and that her

termination was motivated by those complaints. We will 

consider each of Abramson's claims in the order raised by 

appellant, beginning with her hostile work environment 

claim. 

II. 

The District Court had subject matter jurisdiction under 

28 U.S.C. S 1331 and 28 U.S.C. S 1343, and supplemental 

jurisdiction under 28 U.S.C. S 1367. We have appellate 

jurisdiction over this appeal pursuant to 28 U.S.C.S 1291. 

We exercise plenary review over the District Court's grant of 

summary judgment to WPC, and we apply the same 

standard that the District Court should have applied. 

Farrell v. Planters Lifesavers Co., 206 F.3d 271, 278 (3d Cir. 

2000). A court should grant summary judgment "if the 

pleadings, depositions, answers to interrogatories, and 

admissions on file, together with the affidavits, if any, show 

that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter 

of law." Fed. R. Civ. P. 56(c). In evaluating the evidence, "a 

court must view the facts in the light most favorable to the 

nonmoving party and draw all inferences in that party's 

favor." Farrell, 206 F.3d at 278. While the individual pieces 

of evidence alone may not suffice to make out the claims 

asserted, we must view the record as a whole picture. 

Woodson v. Scott Paper Co., 109 F.3d 913, 921 (3d Cir. 

 16 
1997). As we stated in Andrews v. City of Philadelphia, 895 

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

understood on the basis of some of its scenes but only on 

its entire performance, and similarly, a discrimination 

analysis must concentrate not on individual incidents, but 

on the overall scenario." 

A. Hostile Work Environment 

Abramson's first claim is that she was subjected to a 

hostile work environment based on her religion. To make 

out a prima facie case for a religiously hostile work 

environment5 under Title VII, a plaintiff must demonstrate 

five elements: "(1) the employee[ ] suffered intentional 

discrimination because of [religion]; (2) the discrimination 

was pervasive and regular;6 (3) the discrimination 

_________________________________________________________________ 

5. We have yet to address a hostile work environment claim based on 

religion. However, Title VII has been construed under our case law to 

support claims of a hostile work environment with respect to other 

categories (i.e., sex, race, national origin). We see no reason to treat 

Abramson's hostile work environment claim any differently, given Title 

VII's language. See 42 U.S.C. S 2000e-2(a)(1) (prohibiting employers from 

discriminating against an individual because of"race, color, religion, 

sex, 

or national origin."). Therefore, we apply the well-established framework 

for hostile work environment claims with respect to other protected 

categories to our analysis of a hostile work environment claim made on 

account of religion. We also note that there is at least one reported 

decision from a court of appeals that has held that a claim for a hostile 

work environment based on religion exists, and applied the same prima 

facie case we use here. See Hafford v. Seidner , 183 F.3d 506, 514 (6th 

Cir. 1999) (holding that plaintiff "did not demonstrate a triable issue 

over 

whether he was subjected to a hostile work environment based on 

religion."). 

We also note that a New Jersey court has also recognized that hostile 

work environment claims based on religion are cognizable under the 

NJLAD. See Heitzman v. Monmouth County, 728 A.2d 297, 303 (N.J. 

Super. Ct. App. Div. 1999) (discussing plaintiff 's claim that he was 

subjected to hostile work environment because he was Jewish and 

noting that New Jersey courts have relied upon federal court decisions 

construing Title VII hostile work environment claims when reviewing 

such claims under NJLAD). 

6. We note, as we did in Bouton v. BMW of N. Am., Inc., 29 F.3d 103, 106 

n.2 (3d Cir. 1994), and Spain v. Gallegos, 26 F.3d 439, 449 n.14 (3d Cir. 

 17 
detrimentally affected the plaintiff; (4) the discrimination 

would detrimentally affect a reasonable person of the same 

[religion] in that position; and (5) the existence of 

respondeat superior liability." Kunin v. Sears Roebuck & 

Co., 175 F.3d 289, 293 (3d Cir. 1999) (citing Andrews, 895 

F.2d at 1482). 

Under the NJLAD, a plaintiff states a claim for a 

religiously hostile work environment by showing that the 

"complained-of conduct (1) would not have occurred but for 

the employee's [religion]; and it was (2) severe or pervasive 

enough to make a (3) reasonable [Orthodox Jew] believe 

that (4) the conditions of employment were altered and the 

working environment was hostile or abusive." Hurley v. 

Atlantic City Police Dep't, 174 F.3d 95, 114 (3d Cir. 1999), 

cert. denied, 528 U.S. 1074 (2000) (quoting Lehmann v. 

Toys R Us, Inc., 626 A.2d 445, 453 (N.J. 1993)). 7 

_________________________________________________________________ 

1994), that the Andrews formulation of this prong differs from the 

Supreme Court's. In Harris v. Forklift Sys., Inc., 510 U.S. 17, 21 (1993), 

and most recently in Oncale v. Sundowner Offshore Servs., Inc., 523 U.S. 

75, 78 (1998), the Supreme Court articulated the standard for hostile 

work environment claims. It required that the plaintiff demonstrate that 

the harassment was "severe or pervasive." Id. On at least one previous 

occasion, we have also referred to the standard as severe or pervasive. 

See Walton v. Mental Health Ass'n of Southeastern Pa., 168 F.3d 661, 

667 (3d Cir. 1999) (applying Title VII hostile work environment test to 

ADA harassment claim and holding that plaintiff failed to "demonstrate[ ] 

that the asserted harassment was pervasive or severe enough to meet 

the Harris standard."). In the instant case, Abramson asserts a claim 

that the discrimination was "pervasive and regular," thus fulfilling both 

the Andrews and the Harris tests. Therefore, we adopt the approach 

taken in Bouton. We note that the distinction between "severe or 

pervasive" and "pervasive and regular" may be important, but "do not 

find it necessary to resolve whether [the difference in language] was 

inadvertent." Bouton, 29 F.3d at 106 n.2. 

7. New Jersey courts have placed a less onerous burden on the plaintiff 

by omitting the final prong of the analysis. Therefore, any plaintiff who 

has fulfilled the Title VII prima facie case will have also shown the 

elements required by the NJLAD. Because we find that Abramson has 

fulfilled the Title VII prima facie case, we will not discuss the NJLAD 

specifically, but note here that Abramson's claims under the NJLAD are 

intact based on her showing under Title VII. 

 18 
The District Court rejected Abramson's religiously hostile 

work environment claims under both statutes, finding that 

the conduct alleged did not meet the requirements of the 

prima facie case. Dist. Ct. Op. at 78. Though it referred to 

all of the first four prongs of the test, the Court seemed to 

base its holding almost exclusively on Abramson's failure to 

meet the first prong, viewing that prong as involving the 

perception of a "reasonable person of the protected status" 

and requiring a discriminatory "animus." We disagree with 

this approach. 

The proper inquiry at this stage was whether a 

reasonable factfinder could view the evidence as showing 

that Abramson's treatment was attributable to her religious 

faith and practice. Further, by asking whether a reasonable 

person would "necessarily construe" the conduct in 

question as being improperly motivated, the District Court 

appears to have viewed the evidence in the light most 

favorable to the party making, not the party opposing, the 

summary judgment motion. See Howley v. Town of 

Stratford, 217 F.3d 141, 151 (2d Cir. 2000) ("It is not the 

province of the court itself to decide what inferences should 

be drawn."). 

By requiring that Wepner's conduct be "linked" to a

"discriminatory animus," Dist. Ct. Op. at 79, and stating 

that the record did not sufficiently "reveal[ ] [what was in 

the] mind of Shelley Wepner," id. at 83, the District Court 

seemingly required Abramson to introduce direct evidence 

of Wepner's intentional discrimination against her based on 

her religious beliefs. However, Supreme Court precedent 

does not support the need for a plaintiff to demonstrate 

direct evidence of her harasser's motivation for 

discrimination against her. In Oncale, the Court discussed 

a hostile work environment claim on the basis of sex, and 

stated the following: 

 A trier of fact might reasonably find [sex] 

 discrimination, for example, if a female victim is 

 harassed in such sex-specific and derogatory terms by 

 another woman as to make it clear that the harasser is 

 motivated by general hostility to the presence of women 

 in the workplace. A same-sex harassment plaintiff may 

 also . . . offer direct comparative evidence about how 

 19 
 the alleged harasser treated members of both sexes in 

 a mixed-sex workplace. 

523 U.S. at 80-81. Similarly, we have never required a 

plaintiff to demonstrate direct proof that her harasser's 

intent was to create a discriminatory environment. Instead, 

we have held that, with respect to certain conduct, the 

intent to discriminate can be inferred. Andrews , 895 F.2d 

at 1482 n.3 (referring to sexual misconduct). We have also 

noted that because discrimination is "often simply masked 

in more subtle forms," it is often difficult to discern 

discriminatory animus. Aman v. Cort Furniture Rental Corp., 

85 F.3d 1074, 1082 (3d Cir. 1996); see also Iadimarco v. 

Runyon, 190 F.3d 151, 157 (3d Cir. 1999) ("The Supreme 

Court has recognized that an employer who discriminates 

will almost never announce a discriminatory animus or 

provide employees or courts with direct evidence of

discriminatory intent."). Thus, we have held that even the 

use of "code words" such as "all of you" and "one of them" 

could be sufficient evidence from which a jury could find an 

intent to discriminate. See Aman, 85 F.3d at 1083 ("The 

words themselves are only relevant for what they reveal -- 

the intent of the speaker."); see also Howley , 217 F.3d at 

145, 148, 154-55 (finding hostile work environment claim 

on basis of sex viable where conduct at issue, though 

lacking any sexual component or reference to plaintiff 's 

sex, could, in context, reasonably be interpreted as having 

been directed at plaintiff because of sex). 

The first prong of the Andrews test was not designed to 

protect harassers who fail to recognize the hostile or 

abusive nature of their comments and actions. Our case 

law does not indicate that the first prong requires a 

factfinder to peer inside the harasser's mind. Rather, it 

merely requires a showing that the offender's behavior was, 

as required by both Title VII and the LAD, based on a 

protected category. See Spain v. Gallegos, 26 F.3d 439, 

447-48 (3d Cir. 1994) (noting that though facts before us 

did not include evidence of "blatantly sexist behavior," 

plaintiff made out the first element "by showing that gender 

was a substantial factor in the discrimination" and that 

plaintiff would not have been treated in the same manner 

if she were male) (internal quotation marks and citation 

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

sufficiently oppressive environment could, in theory, give 

courts enough evidence to infer that the intentional 

discrimination prong of the Andrews test can be met even 

absent evidence of the harasser's subjective intent to 

discriminate.") 

Regardless of what a harasser's intention is, if a plaintiff 

presents sufficient evidence to give rise to an inference of 

discrimination by offering proof that her "workplace is 

permeated with discriminatory intimidation, ridicule, and 

insult that is sufficiently severe or pervasive to alter the 

conditions of the victim's employment and create an

abusive working environment," Harris v. Forklift Sys., Inc., 

510 U.S. 17, 21 (1993) (internal quotation marks and 

citation omitted), and the conduct is based on one of the 

categories protected under Title VII, a hostile work 

environment claim will survive summary judgment. Here, 

almost all of the incidents alleged centered around

Abramson's insistence that she not work during the 

Sabbath. Therefore, we hold that where, as here, the 

evidence tends to show that the harasser's conduct was 

intentionally directed toward the plaintiff because of her 

religion, the first prong of the prima facie case is met. 

Turning to the remaining elements of the prima facie case 

for hostile work environment, we find that the evidence 

Abramson presented was sufficient to satisfy her burden on 

the other prongs as well. We conclude that the many

incidents recounted by Abramson, coupled with the 

declarations of other WPC professors, are relevant and 

probative as to prongs two through four of the prima facie 

case for hostile work environment claims.8 Though we will 

_________________________________________________________________ 

8. We note that the parties disagree as to the District Court's treatment 

of the declarations, and we found the record quite vague in this regard. 

The District Court clearly did not allude to them in its oral opinion, but 

did make a general statement during oral argument on the summary 

judgment motion, offering the view that "some of the affidavits . . . 

would 

be truly inadmissible." Tr. of Oral Arg. at 100. It then stated that "we 

might have [an] [in] limine battle about that . . . when we are dealing 

with whether or not it is admissible." Id. at 101. Because we have not 

been referred to a motion contesting their admissibility or an order 

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

evidence that the District Court should have considered 

when ruling on Abramson's hostile work environment claim:9 

(1) Seminoff 's "unprecedented" monitoring of Abramson's 

conferences and absences; (2) WPC charging Abramson

with a sick day on a Jewish holiday when she was not 

scheduled to teach; (3) both Wepner and Seminoff, on 

separate occasions, criticizing and raising their voices at 

Abramson regarding her lack of availability during the 

Sabbath; (4) Wepner scheduling meetings on Jewish 

holidays and refusing to change them so Abramson could 

attend; (5) Wepner's pointed statement to Abramson 

regarding her faith and behavior ("The trouble with you is 

that it doesn't show that you are Orthodox."). 

First, a jury could find that the harassment was 

pervasive. The events alleged occurred over a period of two 

years and could be found to have infected Abramson's work 

experience; even other faculty members mentioned it to 

Speert prior to Abramson's filing suit. App. at 390-91, 513, 

540-41. No one event alone stands out from the rest, but 

all of the events could be found to aggregate to create an 

environment hostile to a person of Abramson's religion. See 

Durham Life Ins. Co. v. Evans, 166 F.3d 139, 155 (3d Cir. 

1999) ("[I]t is settled law that courts should not consider 

each incident of harassment in isolation. Rather, a court 

must evaluate the sum total of abuse over time.") (internal 

citation omitted). Taken as a whole, all the events alleged 

indicate that the harassment rose to the level of 

pervasiveness required to withstand summary judgment. 

_________________________________________________________________ 

ruling them inadmissible, we assume for our purposes that they are to 

be considered. However, we note that their admissibility is a matter for 

the District Court to decide. See United States Sec. and Exchange 

Comm'n v. Infinity Group Co., 212 F.3d 180, 198 (3d Cir. 2000) 

(reviewing the exclusion of lay opinion testimony under Rule 701 for 

abuse of discretion); United States v. Eufrasio , 935 F.2d 553, 571 (3d 

Cir. 1991) (stating that admission under Rule 403 is reviewed under an 

abuse of discretion standard). 

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

record. 

 22 
A jury could also reasonably conclude that Abramson

was detrimentally affected by the environment, thereby 

fulfilling the third prong. Abramson's declarations amply 

support such a finding, as do the three affidavits of her 

fellow WPC faculty members. In addition, the declaration of 

Cordelia Towney stated that "[t]he religious harassment 

which [Abramson] suffered at WPC made her feel like a 

beaten puppy. She became sallow, stooped, [and] she

looked broken." App. at 174. 

In determining whether the fourth prong, the objective 

test, is met,10 we must "look[ ] at all the circumstances. 

These may include the frequency of the discriminatory 

conduct; its severity; whether it is physically threatening or 

humiliating, or a mere offensive utterance; and whether it 

unreasonably interferes with an employee's work 

performance." Harris, 510 U.S. at 23. The Supreme Court 

has stated that Title VII is not violated by the"mere 

utterance of an . . . epithet which engenders offensive 

feelings in an employee" or by mere "discourtesy or

rudeness," unless so severe or pervasive as to constitute an 

objective change in the conditions of employment. Faragher 

v. City of Boca Raton, 524 U.S. 775, 787 (1998) (internal 

quotation marks and citations omitted). The conduct in the 

instant case could be said to go beyond "simple teasing, 

offhand comments, and [non-serious] isolated incidents," 

which the Supreme Court has cautioned would "not 

amount to discriminatory changes in the terms and 

conditions of employment." Id. at 788 (internal quotation 

marks and citations omitted). We find that Abramson has 

made a sufficient showing, based upon the facts set forth 

above, that a jury could find that a reasonable person of 

her religion would find the conduct alleged to be so harmful 

that it altered her working conditions. 

With respect to the fifth prong of the hostile work

environment claim, the existence of respondeat superior 

_________________________________________________________________ 

10. We also note that the District Court analyzed whether a reasonable 

Orthodox Jew would find the behavior to be religiously motivated, but in 

assessing whether the fourth prong of the prima facie case is met, a 

court must consider whether or not a person in the protected category 

would be detrimentally affected by the conduct at issue. 

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

met. The Supreme Court crafted the standard for employer 

liability in Faragher, referred to as the"aided by the agency 

relation test": 

 An employer is subject to vicarious liability to a 

 victimized employee for an actionable hostile 

 environment created by a supervisor with immediate 

 (or successively) higher authority over the employee. 

 When no tangible employment action is taken, a 

 defending employee may raise an affirmative defense to 

 liability or damages . . . . No affirmative defense is 

 available, however, when the supervisor's harassment 

 culminates in a tangible employment action, such as 

 discharge . . . . 

524 U.S. at 807. Here, it is undisputed that Abramson was 

terminated. Hence, WPC cannot assert an affirmative

defense, and the evidence of liability is clear. Because 

Abramson presented evidence sufficient to meet all five 

elements of the prima case, we reverse the District Court's 

grant of summary judgment on Abramson's hostile work 

environment claim.11 

B. Religious Discrimination Claim 

Abramson claims that she was terminated because her

supervisors were motivated by discriminatory animus

stemming from her insistence that she be allowed to

observe her religious holy days. She alleges that WPC's 

_________________________________________________________________ 

11. We also note that the Court erred by conflating two of Abramson's 

legal claims, stating that the exact same evidence applied to both 

Abramson's religious discrimination claim and her hostile work 

environment claim: "[I]f I do not find that .. . the reason advanced were 

[sic] pretextual plaintiff has a difficult time establishing hostile work 

environment . . . the same evidence works for both." Dist. Ct. Op. at 77. 

The two claims have entirely different prima facie cases and often courts 

may consider evidence for one claim and not the other. For example, 

here, even if WPC could demonstrate that it had a legitimate, 

nondiscriminatory reason to terminate Abramson, she would still have a 

hostile work environment claim if she could establish the five prongs of 

the Andrews test, none of which are precluded by a failure to establish 

disparate treatment. 

 24 
various, allegedly non-discriminatory reasons for 

terminating her employment were false and pretextual. 

Title VII explicitly protects employees from adverse 

employment actions on the basis of religion: "(a) It shall be 

an unlawful employment practice for an employer--(1) to 

fail or refuse to hire or to discharge any individual, or 

otherwise to discriminate against any individual with 

respect to his compensation, terms, conditions, or privileges 

of employment, because of such individual's . . . religion 

. . . ." 42 U.S.C. S 2000e-2(a). As recognized by our sister 

circuits, though never explicitly recognized in our own 

jurisprudence, employees may assert two theories of

religious discrimination:12 "disparate treatment," as alleged 

here, and "failure to accommodate." E.g. , Chalmers v. Tulon 

Co. of Richmond, 101 F.3d 1012, 1017 (4th Cir. 1996); 

Mann v. Frank, 7 F.3d 1365, 1368-70 (8th Cir. 1993). 

Because the cases in our court dealing with religious 

discrimination have routinely been of the "failure to 

accommodate" variety, we utilize a prima facie case here 

that differs from the one employed in our other religious 

discrimination cases. See, e.g., Shelton v. Univ. of Med. & 

Dentistry of N.J., 223 F.3d 220, 224 (3d Cir. 2000). 

To prove a claim under the "disparate treatment" theory, 

the prima facie case and evidentiary burdens of an 

employee alleging religious discrimination mirror those of 

an employee alleging race or sex discrimination. Chalmers, 

101 F.3d at 1017. Accordingly, we apply the familiar 

_________________________________________________________________ 

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

Title 

VII lists religion in the same list of protected categories as race and 

sex, 

the definition of "religion" in 42 U.S.C. 2000e(j) creates the "failure to 

accommodate" theory by including "all aspects of religious observance 

and practice, as well as belief, unless an employer demonstrates that he 

is unable to reasonably accommodate an employee's . . . religious 

observance or practice without undue hardship on the conduct of the 

employer's business." The prima facie case, considered as part of the 

same framework known as the McDonnell Douglas test, consists of three 

elements: "(1) he or she has a bona fide religious belief that conflicts 

with an employment requirement; (2) he or she informed the employer of 

this belief; (3) he or she was disciplined for failure to comply with the 

conflicting employment requirement." Protos v. Volkswagen of America, 

Inc., 797 F.2d 129, 133 (3d Cir. 1986). 

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

Green, 411 U.S. 792, 803-805 (1973). The plaintiff must 

demonstrate that she (1) is a member of a protected class, 

(2) was qualified and rejected for the position she sought, 

and (3) nonmembers of the protected class were treated 

more favorably. Goosby v. Johnson & Johnson Med., Inc., 

228 F.3d 313, 318-319 (3d Cir. 2000) (citing Ezold v. Wolf, 

Block, Schorr & Solis-Cohen, 983 F.2d 509, 522 (3d Cir. 

1992)). After the plaintiff establishes a prima facie case, the 

employer must proffer a legitimate, non-discriminatory 

reason for the adverse employment decision. Once the 

employer does so, the plaintiff must demonstrate that the 

proffered reason was pretextual. Goosby, 228 F.3d at 319; 

see also Reeves v. Sanderson Plumbing Prods., Inc. , 530 

U.S. 133, 143 (2000). 

Abramson also asserts a claim of religious discrimination 

under the NJLAD. In cases alleging disparate treatment, 

New Jersey courts have adopted a three-step test that 

mirrors the Title VII inquiry: 

 (1) the complainant must come forward with sufficient 

 evidence to constitute a prima facie case of

 discrimination; (2) the employer must then show a 

 legitimate non-discriminatory reason for its decision; 

 and (3) the complainant must be given the opportunity 

 to show that the employer's stated reason was merely 

 a pretext or discriminatory in its application. 

Chou v. Rutgers, the State Univ., 662 A.2d 986, 993 (N.J. 

Super. Ct. App. Div. 1995) (citing Dixon v. Rutgers, the State 

Univ. of N.J., 541 A.2d 1046, 1051 (N.J. 1988)). 13

Here, the District Court assumed, and the parties did not 

dispute on appeal, that Abramson met all three 

requirements of the prima facie case: (1) religion is a 

protected category under Title VII and Abramson is an 

Orthodox Jew, (2) she was qualified for the position; and (3) 

she was terminated while other non-Orthodox Jewish 

_________________________________________________________________ 

13. Under the NJLAD and Title VII, the analysis is essentially the same. 

Therefore, we will limit our discussion to Title VII. In doing so, we note 

that because Abramson's Title VII claim survives summary judgment, 

her NJLAD claim does as well. 

 26 
professors were retained. The burden then shifted to WPC 

to proffer a legitimate, non-discriminatory reason for 

Abramson's termination. Goosby, 228 F.3d at 319. WPC 

offered many reasons for its decision. In fact, the reasons 

presented were ever-changing. 

Seminoff wrote that after reviewing Abramson's retention 

file, she did not recommend Professor Abramson for 

retention due to concern "regarding the quality of 

accomplishment in [teaching, research, scholarly activity 

and service], with particular concern for the area of 

service." App. at 364. In Speert's memo to Abramson

explaining his decision not to recommend her for 

reappointment, he wrote that her "overall record of

contribution to the College and Community and potential 

contribution to the Department, Program and the College in 

terms of present and future programs do not justify

reappointment." App. at 979. Later, in response to 

Abramson's discrimination complaint to the NJDCR, WPC 

claimed she was deficient in the following areas: 

scholarship and teaching, interpersonal skills during small 

group discussions, professional service on campus-wide 

and department committees/activities, and her scholarly 

record. App. at 404. 

Finally, in Speert's deposition, he gave other reasons 

never previously mentioned, among them that Abramson 

failed to create a concentration in technology and refused to 

work with administrators to create an Apple computer lab. 

When pressed, Speert asserted that the main reason he did 

not retain Abramson was that the folder that had been 

presented to him contained evidence of her inability to take 

leadership and guidance. App. at 1098. Upon further

inquiry, he said that this was based on Abramson's failure 

to follow proper procedures in securing grants, and her 

failure to be involved in the NCATE accreditation process. 

App. at 1099-110. Because WPC's burden at this stage is 

merely a burden of production, we agree with the District 

Court that WPC met its burden at this stage. See Ezold, 

983 F.2d at 523 (referring to defendant's burden as burden 

of production). 

The burden shifted to Abramson, who had to "point to 

some evidence, direct or circumstantial, from which a 

 27 
factfinder could reasonably either (1) disbelieve the 

employer's articulated legitimate reasons; or (2) believe that 

an invidious discriminatory reason was more likely than 

not a motivating or determinative cause of the employer's 

action." Fuentes v. Perskie, 32 F.3d 759, 764 (3d Cir. 1994). 

In Fuentes, we addressed just how much evidence of 

pretext a plaintiff needs to avert summary judgment. We 

held that "to avoid summary judgment, the plaintiff 's 

evidence rebutting the employer's proffered legitimate 

reasons must allow a factfinder reasonably to infer that 

each of the employer's proffered non-discriminatory reasons 

was either a post hoc fabrication or otherwise did not 

actually motivate the employment action (that is, the 

proffered reason is a pretext)." Id. (internal citations and 

emphasis omitted). Importantly, we qualified that statement 

with the following footnote: 

 [The plaintiff need not] cast doubt on each proffered 

 reason in a vacuum. If the defendant proffers a bagful 

 of legitimate reasons, and the plaintiff manages to cast 

 substantial doubt on a fair number of them, the 

 plaintiff may not need to discredit the remainder. That 

 is because the factfinder's rejection of some of the 

 defendant's proffered reasons may impede the

 employer's credibility seriously enough so that a 

 factfinder may rationally disbelieve the remaining 

 proffered reasons, even if no evidence undermining 

 those remaining rationales in particular is available. 

Id., n.7. We then noted that it is not enough for a plaintiff 

to show that the employer's decision was wrong or 

mistaken, because the issue is whether the employer

acted with discriminatory animus. Hence, to make a 

sufficient showing of pretext, Abramson must "demonstrate 

such weaknesses, implausibilities, inconsistencies,

incoherencies, or contradictions" in WPC's reasons that "a 

reasonable factfinder could rationally find them `unworthy 

of credence.' " Id. at 765 (citation omitted). And if Abramson 

can successfully demonstrate pretext, she need not present 

affirmative evidence of discrimination beyond her prima 

facie showing if a rational factfinder could conclude from 

the evidence of pretext that WPC's actions were 

discriminatory. Reeves, 530 U.S. at 147. 

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

overall deficiencies in Abramson's scholarship, teaching 

and service -- the explanations given to the NJDCR, which 

are the same reasons Seminoff cited as the basis for not 

recommending retention; and (2) Abramson's failure to get 

along with supervisors and follow instructions, which were 

the main (though not exclusive) reasons Speert listed at his 

deposition. 

Abramson refutes the first set of reasons by noting that 

Speert admitted in his deposition that these reasons were 

unfounded, saying that her folder gave evidence of"very 

good performance in both areas" of teaching and 

scholarship, App. at 468, and that her level of service 

"would not have raised a concern," App. at 498. In addition, 

WPC admitted at oral argument that these reasons were not 

the actual basis for Abramson's termination. This 

admission alone might suffice to satisfy Abramson's

burden, but we need not decide based solely on that

admission, because Abramson's evidence also refutes the 

second set of reasons given later by Speert. 

With respect to Abramson's alleged failure to follow 

instructions insofar as she purportedly did not use proper 

protocols for proposed grants and programs, she argues 

that she was unaware of any protocols. App. at 147. She 

points to Speert's inability to identify at his deposition 

where the protocols were outlined in either the policy 

manual or the faculty handbook. App. at 478-79. Abramson 

presented testimony of the president of the faculty union 

stating there were not any protocols, App. at 160, and 

noted WPC's failure to include in the record any documents 

setting forth such protocols. 

Abramson also attacked the legitimacy of WPC's reliance 

on the fact that she failed to accept leadership from 

Seminoff and Wepner as grounds for her termination. She 

argues that because these two women were her alleged 

harassers, and because her poor relationship with them 

was directly related to their hostility toward her religion, 

her difficulty working with them should not be credited as 

a legitimate, nondiscriminatory reason for her termination. 

She also submitted evidence of her positive contributions in 

teaching and scholarship (glowing teaching evaluations, 

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

declaration), including evidence that she was well-versed in 

the use of Apple computers and did in fact teach her 

students how to use them. App. at 132, 174. With respect 

to her alleged failure to develop the concentration in 

technology, Abramson points to the specific reference by 

the Committee to the contrary, presenting evidence that the 

Committee praised her work in this area. App. at 239. In 

addition, Abramson focuses on the timing of the reasons, 

stressing that two technology-related concerns were not 

mentioned until Speert's deposition. 

Abramson also argues that the ever-changing nature of 

the proffered reasons can be considered as detracting from 

their legitimacy. We agree. If a plaintiff demonstrates that 

the reasons given for her termination did not remain 

consistent, beginning at the time they were proffered and 

continuing throughout the proceedings, this may be viewed 

as evidence tending to show pretext, though of course it 

should be considered in light of the entire record. See 

Fuentes, 32 F.3d at 765 (listing "inconsistencies" and 

"contradictions" in employer's reasons among ways plaintiff 

could show pretext); see also Waddell v. Small Tube Prods., 

Inc., 799 F.2d 69, 73 (3d Cir. 1986) (noting that district 

court could "appropriately" have taken employer's 

inconsistent explanations for termination into account in 

finding causation necessary to satisfy prima facie case of 

retaliatory discharge). 

We find that based on the record as a whole, Abramson 

has successfully "demonstrate[d] such weaknesses, 

implausibilities, inconsistencies, incoherencies, or 

contradictions" such that "a factfinder could reasonably . . . 

disbelieve the employer's articulated legitimate reasons." 

Fuentes, 32 F.3d at 765. And as the Supreme Court 

recently stated in Reeves, this alone could support the 

inference that WPC's motivation was discriminatory:

 In appropriate circumstances, the trier of fact can 

 reasonably infer from the falsity of the explanation that 

 the employer is dissembling to cover up a 

 discriminatory purpose. Such an inference is

 consistent with the general principle of evidence law 

 that the factfinder is entitled to consider a party's 

 30 
 dishonesty about a material fact as "affirmative 

 evidence of guilt." Moreover, once the employer's 

 justification has been eliminated, discrimination may 

 well be the most likely alternative explanation, 

 especially since the employer is in the best position to 

 put forth the actual reason for its decision. Thus, a 

 plaintiff 's prima facie case, combined with sufficient 

 evidence to find that the employer's asserted 

 justification is false, may permit the trier of fact to 

 conclude that the employer unlawfully discriminated. 

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

However, the factfinder does not need to rely on that 

evidence alone. Abramson has also presented evidence from 

which a reasonable factfinder could infer that "an invidious 

discriminatory reason was more likely than not a 

motivating or determinative cause of [WPC]'s action." 

Fuentes, 32 F.3d at 764. The confrontations with Seminoff 

and Wepner, the very probative declarations of Abramson's 

fellow professors, the laudatory faculty evaluations and 

Committee report, and Wepner's Post-it note all provide 

strong evidence to support Abramson's claim. 

We note that the District Court appears to have viewed 

the evidence as a factfinder,14 which contributed to the 

ruling. In addition, the District Court seems to have viewed 

each piece of independently, rather than in its entirety.15 "In 

_________________________________________________________________ 

14. For example, with respect to Abramson being charged for a sick day 

on a Jewish holiday when she was not scheduled to teach, and then 

having to complain for six months to have the error rectified, the 

District 

Court "ascribe[d] that to administrative and bureaucratic bumbling." 

Dist. Ct. Op. at 69. And when discussing Seminoff 's review of 

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

District Court concluded that such conduct was not motivated by 

discriminatory animus, but rather, Seminoff 's"leadership and part of 

doing the right thing as a manager." Id. at 63. 

15. For instance, with respect to the Court's finding as to Wepner's 

comment to Abramson that "The trouble with you is that it doesn't show 

that you are Orthodox," the Court noted: "We are talking about whether 

this standing alone, per se without any tortured reasoning one way or 

another establishes a religious bias." Dist. Ct. Op. at 52-53 (emphasis 

added); see also id. at 55 (stating with respect to Wepner's Post-It note: 

"[T]his is offered as a stand-alone document to give us a vision of Shelly 

Wepner's mind-set with respect to Abramson."). 

 31 
determining the appropriateness of summary judgment, the 

court should not consider the record solely in piecemeal 

fashion, giving credence to innocent explanations for 

individual strands of evidence, for a jury . . . would be 

entitled to view the evidence as a whole." Howley v. Town 

of Stratford, 217 F.3d 141, 151 (2d Cir. 2000). Accordingly, 

viewing the evidence in the light most favorable to the 

plaintiff, as is required when a defendant moves for 

summary judgment, and viewing the record as a whole, we 

conclude that Abramson's proof is sufficient to require that 

this claim be permitted to proceed to trial. 

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

on the fact that it found no evidence in the record

demonstrating that Speert himself possessed discriminatory 

animus toward Abramson, a rational jury could find that 

Speert did not make his decision in a vacuum. A 

reasonable inference that could be drawn from the record is 

that Speert was influenced by both Seminoff and Wepner. 

In fact, Speert even stated in his deposition that before 

making his decision not to retain Abramson, he sought 

Seminoff 's counsel. App. at 487. Moreover, there is an 

additional piece of evidence not mentioned in the District 

Court opinion that supports our view of the record on this 

point. The record contains a memo sent on October 21, 

1993, from Seminoff to Speert with a subject line that read: 

"Request for information - Professor Gertrude Abramson," 

thus supporting the conclusion that Speert had sought 

input on the decision to retain Abramson.16 App. at 378. 

Under our case law, it is sufficient if those exhibiting 

discriminatory animus influenced or participated in the 

decision to terminate. See Abrams v. Lightolier Inc., 50 F.3d 

1204, 1214 (3d Cir. 1995) (stating in ADEA case that if 

plaintiff 's supervisor participated in decision to terminate 

him, even though president of company formally terminated 

him, evidence of supervisor's age-related animus would be 

relevant in determining if discriminatory motive at play); 

see also Russell v. McKinney Hosp. Venture, 235 F.3d 219, 

_________________________________________________________________ 

16. In this memo, Seminoff explained certain aspects of Abramson's 

retention file, including why Seminoff believed the committee vote was 

split, and a recitation of what Wepner's concerns were. At the end of the 

memo, Seminoff addresses "the allegation of religious bias." App. at 379. 

 32 
226 (5th Cir. 2000) ("If the employee can demonstrate 

that others had influence or leverage over the official 

decisionmaker . . . it is proper to impute their 

discriminatory attitudes to the formal decisionmaker."); 

Santiago-Ramos v. Centennial P.R. Wireless Corp., 217 F.3d 

46, 55 (1st Cir. 2000) (stating that "discriminatory 

comments . . . made by . . . those in a position to influence 

the decisionmaker" can be evidence of pretext); Griffin v. 

Washington Convention Ctr., 142 F.3d 1308, 1312 (D.C. Cir. 

1998) ("[E]vidence of a subordinate's bias is relevant where 

the ultimate decision maker is not insulated from the 

subordinate's influence."). As we noted in Roebuck v. Drexel 

University, 852 F.2d 715, 727 (3d Cir. 1988),"it is plainly 

permissible for a jury to conclude that an evaluation at any 

level, if based on discrimination, influenced the 

decisionmaking process and thus allowed discrimination to 

infect the ultimate decision." Clearly, Wepner and Seminoff 

played a role in the ultimate decision to terminate

Abramson, and their involvement thus makes their conduct 

toward her relevant and probative of discriminatory

animus. 

Considering the record before us, we find ample evidence 

to support Abramson's religious discrimination claim. 

C. Retaliation Claim 

Abramson's third and final claim is for retaliation. To 

advance a prima facie case of retaliation under Title VII and 

the NJLAD, a plaintiff must show that: (1) the employee 

engaged in a protected employee activity;17 (2) the employer 

took an adverse employment action after or 

contemporaneous with the employee's protected activity; 

and (3) a causal link exists between the employee's

protected activity and the employer's adverse action. See, 

e.g., Farrell, 206 F.3d at 278; see also Krouse v. Am. 

Sterilizer Co., 126 F.3d 494, 500 (3d Cir. 1997) (describing 

the third requirement as a "causal connection"); Craig v. 

_________________________________________________________________ 

17. The actual language used by the New Jersey courts, with respect to 

the first prong, is that an employee must show that he or she engaged 

in protected activity known by the employer. Craig v. Suburban 

Cablevision, Inc., 660 A.2d 505, 508 (N.J. 1995) (emphasis added). 

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

We conclude that there is ample evidence of all three 

elements in the record, and disagree with the District 

Court's determination that Abramson did not make out a 

prima facie case. 

1) Abramson engaged in protected activity. 

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

stating: 

 I have lived as an Orthodox Jew all my life . . . . The 

 non-discrimination policy of William Paterson College 

 precludes the need to defend either religious 

 observances or pursuit of career goals. Nevertheless, 

 . . . it has been necessary for me to justify my lifestyle. 

 See, for example, the attached memo sent to Dean 

 Seminoff in response to her request for an explanation 

 of my "conferences/absences" when I submitted a pro- 

 forma travel request for an August conference. 

App. at 932. On October 12, 1993, Abramson once again 

wrote to Speert after Seminoff gave a negative 

recommendation to the Committee regarding her future 

employment with WPC. App. at 377. This letter complained 

that "Dean Seminoff 's bias against [Abramson] as an 

Orthodox Jew overwhelms her professional judgment." Id. 

In addition to making her complaints known to President 

Speert, Abramson also complained to WPC's Affirmative 

Action Officer, Robie Cagnina. On September 22, 1993, 

Abramson filed a written complaint of religious 

discrimination with Cagnina, stating: "I am being subjected 

to bias, discriminatory treatment, harrassment [sic], and 

outright hatred because I live as an Orthodox Jew." App. at 

311. 

The District Court determined that Abramson failed to 

make out the first element, holding that she "did not 

articulate clearly and in a formal manner a religious 

discrimination complaint . . . " and that her"[October]18 

_________________________________________________________________ 

18. The District Court actually stated "April 1992" letter, but given that 

no such letter exists in the record, and that during that same discussion 

it had previously referred to the October 1992 letter, we assume the 

District Court simply misspoke and intended to say October. 

 34 
1992 letter [was not] a clear enough indication that she was 

raising religious discrimination as an issue. She was 

[adverting] to it, but she was not flat out saying it." Dist. Ct. 

Op. at 75-76. Though we think that the October 1992 letter 

was sufficiently clear to have alerted Speert that Abramson 

felt she was being discriminated against,19 we need not rely 

on that letter alone in order to find that Abramson fulfilled 

the first prong.20 This is because not only did Cagnina 

admit that she understood Abramson's September 22, 1993 

letter to her to be an "informal" complaint of discrimination, 

App. at 770, Speert also acknowledged that the October 12, 

1993 letter from Abramson to him complaining of"bias" 

toward her as an Orthodox Jew was quite clearly a 

complaint of discrimination, App. at 515. 

Under our precedent, the letters Abramson wrote to 

Cagnina and Speert fall squarely within the requirements of 

the first prong of a retaliation claim. We have previously 

noted in the ADEA context that "we do not require a formal 

letter of complaint to an employer or the EEOC as the only 

acceptable indicia of the requisite `protected conduct' . . . ." 

Barber v. CSX Distrib. Servs., 68 F.3d 694, 701-02 (3d Cir. 

1995) (citing Sumner v. United States Postal Serv., 899 F.2d 

203, 209 (2d Cir. 1990) (explaining that acceptable forms of 

protected activity under Title VII's analogous opposition 

clause include formal charges of discrimination"as well as 

informal protests of discriminatory employment practices, 

including making complaints to management, writing 

critical letters to customers, protesting against 

discrimination by industry or society in general, and 

expressing support of co-workers who have filed formal 

_________________________________________________________________ 

19. Speert's statements in his deposition regarding this letter are 

inconsistent. First, he notes that he called Wepner after receiving this 

letter and asked her "about the references to challenge on the basis of 

religion," which imply that he realized she was alleging unfair treatment 

due to her religion. App. at 504. Yet, Speert also says that he did not 

consider the letter to be a complaint of religious discrimination. App. at 

507. However, Seminoff did acknowledge in her deposition that she was 

aware that Abramson felt she was the victim of discrimination during the 

1991-92 academic year. App. at 604. 

20. It is unclear from the District Court opinion why it did not consider 

any of Abramson's complaints besides the October 1992 letter. 

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

oral or written, formal or informal, are sufficient to satisfy 

the first prong of the prima facie case, provided the 

complaints expressed Abramson's opposition to a protected 

activity under Title VII. Thus, we hold that the record 

contains a sufficient showing that Abramson engaged in 

protected activity. 

2) Abramson suffered adverse employment action. 

With respect to the second element -- i.e., adverse

employment action, the District Court only focused on 

Abramson's claim that Speert treated her differently after 

she voiced her complaints, rather than considering the 

more obvious adverse employment action of her 

termination. We hold that Abramson's termination clearly 

fulfills the second prong of the prima facie case for a 

retaliation claim. In addition, Seminoff 's recommendation 

not to retain Abramson would also qualify as an adverse 

employment action sufficient to meet this element. 

3) A causal link exists between the protected activity 

 and the adverse action. 

Given that the District Court viewed Speert's change in 

demeanor as the only adverse action, it dismissed the issue 

of causation out of hand, stating that it "would call for rank 

speculation on the part of the jury" to ask it to find 

retaliation. Dist. Ct. Op. at 76. But because the two 

instances of adverse action we examine are Seminoff 's 

recommendation not to retain Abramson and Abramson's 

ultimate termination, the analysis changes significantly. 

Based on our case law and the evidence adduced, 

Abramson has made a sufficient showing of the causal 

connection required by the third prong of the prima facie 

case of retaliation. In Farrell, we recognized that our case 

law has focused on two main factors in finding the causal 

link necessary for retaliation: timing and evidence of 

ongoing antagonism. 206 F.3d at 281; see also Woodson v. 

Scott Paper Co., 109 F.3d 913, 920-21 (3d Cir. 1997) 

("[T]emporal proximity . . . is sufficient to establish the 

causal link . . . . [A] plaintiff can [also] establish a link 

 36 
between his or her protected behavior and subsequent 

discharge if the employer engaged in a pattern of 

antagonism in the intervening period."). Here, it could be 

argued that the proximity in time between Abramson's last 

letter to Speert on October 12, 1993, and her being

informed Speert would not recommend her for retention on 

October 25, 1993, is not conclusive because her discharge 

occurred in accordance with her annual review for 

retention. However, the timing factor is made more 

convincing by Cagnina's admission that she called Seminoff 

after meeting with Abramson in September 1993 and told 

her that Abramson had "apprised [her] that she believed 

she had been discriminated against." App. at 770. Seminoff 

wrote a very negative recommendation against Abramson 

soon after that phone call from Cagnina. 

In any event, we need not rely on timing alone because 

Abramson has presented additional evidence to prove the 

causal nexus. First, she has demonstrated ongoing 

antagonism from her department head and the dean, as we 

noted in our discussion of the facts above. Further, she 

introduced other types of circumstantial evidence regarding 

WPC's proffered reasons for terminating her, which we have 

previously recognized as potentially probative of a causal 

connection. Farrell, 206 F.3d at 284 ("[A] plaintiff may rely 

upon a broad array of evidence to [illustrate a causal 

link]."). For instance, we have noted that a plaintiff may 

show that her employer gave inconsistent reasons for 

terminating her. See Waddell, 799 F.2d at 73 (stating that 

district court could "appropriately" have taken inconsistent 

explanations into account in finding causation necessary to 

satisfy prima facie case). Revealing discrepancies in the 

proffered reasons can also constitute evidence of the causal 

link. See Farrell, 206 F.3d at 285-86 (listing plaintiff 's 

attacks on validity of reasons given). Here, as we found in 

our discussion of the discrimination claim, Abramson has 

succeeded in both casting doubt on the reasons WPC 

proferred for her termination, and in demonstrating that 

those reasons were vague and inconsistent. In light of this 

evidence, coupled with the "ongoing antagonism" reflected 

in the record, including Speert's change in demeanor after 

Abramson complained of discrimination,21 we find that the 

_________________________________________________________________ 

21. The District Court did not find this allegation persuasive, instead 

crediting Speert's explanation that the reason he did not interact with 

 37 
record contains ample proof of a causal connection.

Therefore, Abramson has presented sufficient evidence to 

meet all three prongs of a prima facie retaliation claim so as 

to withstand summary judgment, and we will reverse the 

District Court's ruling on this claim.22 

III. Conclusion 

As we stated in Farrell, 

 We recognize that different inferences might be drawn 

 from the evidence presented in the record. On 

 summary judgment, however, when viewing the 

 sufficiency of the prima facie case, our role is not to act 

 as fact finder. Instead, we must consider the evidence 

 taken in the light most favorable to the non-movant 

 and determine whether [the plaintiff] can show the 

 causation required . . . . 

206 F.3d at 286. Here, there is ample evidence from which 

a reasonable jury could draw inferences establishing all 

three of Abramson's claims. Accordingly, we will REVERSE 

the District Court's order granting summary judgment in 

favor of WPC on Abramson's claims of hostile work 

environment, religious discrimination and retaliation, and 

REMAND for further proceedings. 

_________________________________________________________________ 

Abramson was because it was his practice to avoid having any contact 

with anyone being considered for tenure. App. at 115. In doing so, the 

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

to Abramson. 

22. Needless to say, our opinion should not be interpreted as expressing 

any view as to whether Abramson was in fact subjected to religious 

discrimination or retaliation. We hold only that these questions cannot 

properly be decided at summary judgment and must be submitted to the 

trier of fact. 

 38 
ALITO, Circuit Judge, concurring. 

I write separately to add a brief explanation of my

understanding of the basis for holding that the summary 

judgment record is sufficient to permit the plaintiff 's 

religious harassment claim to go to trial. Harassment is 

actionable under Title VII and the New Jersey Law Against 

Discrimination only if it is so severe or pervasive that it 

alters the terms or conditions of the plaintiff 's employment. 

See Faragher v. City of Boca Raton, 524 U.S. 775, 786 

(1998); Taylor v. Metzger, 706 A.2d 685, 688-89 (N.J. 

1998). Offensive comments and actions that do not rise to 

this level are insufficient. Id. This is an exacting standard, 

and William Paterson College argues that the evidence in 

this case does not meet it. The College relies on Heitzman 

v. Monmouth County, 728 A.2d 297 (N.J. Super. Ct. App. 

Div. 1999), in which certain anti-Semitic remarks were held 

not to have altered the conditions of employment, and the 

College maintains that "Abramson has not demonstrated 

conduct beyond `the ordinary tribulations of the workplace' 

which is so extreme as to amount to a change in the terms 

and conditions of employment." Appellee's Br. at 40

(quoting Faragher, 524 U.S. at 788). The Court responds to 

the College's argument by saying that "[t]he conduct in the 

instant case could be said to go beyond `simple teasing, 

offhand comments, and [non-serious] isolated incidents.' " 

Maj. Op. at 23 (quoting Faragher, 524 U.S. at 788) 

(brackets in majority opinion) (internal quotation marks 

and citations omitted in majority opinion). I agree with the 

Court's statement, but I think that it is necessary to 

explain why the conduct alleged in this case "could be said 

to go beyond . . . ." 

The reason is that a reasonable trier of fact could infer 

that officials of the College intentionally pressured the 

plaintiff to violate the dictates of her faith in order to keep 

her job. As the brief of an amicus curiae observes:

 When an employer deliberately reschedules important 

 meetings for Friday afternoons, the message to an 

 Orthodox Jewish employee is clear as a bell. Such 

 rescheduling tells the employee that continued 

 observance of his or her faith will be viewed as 

 incompatible with adequate job performance. Repeated 

 39 
 requests that work be done on Saturdays or Jewish 

 holidays -- or telephone messages left on a Jewish 

 religious holiday demanding an `immediate' response -- 

 are aimed directly at an employee's religious 

 observance. Criticism of an employee's effort to 

 reconcile his or her schedule with the observance of 

 Jewish holidays delivers the message that the religious 

 observer is not welcome at the place of employment. 1 

Intentionally pressuring a person to choose between faith 

and career is more "severe" and has a more direct effect on 

the conditions of employment than the sort of offensive 

remarks at issue in Heitzman. While case law provides only 

limited protection for employees whose religious obligations 

conflict with neutral job requirements, see Employment 

Div., Dep't of Human Resources of Oregon v. Smith , 494 U.S. 

872 (1990); Trans World Airlines, Inc. v. Hardison, 432 U.S. 

63 (1977), Title VII does not permit an employer to

manipulate job requirements for the purpose of putting an 

employee to the "cruel choice" between religion and

employment. Braunfeld v. Brown, 366 U.S. 599, 616 (1961) 

(Stewart, J., dissenting). It is for this reason, in my view, 

that the summary judgment record is sufficient to support 

the plaintiff 's religious harassment claim. 

A True Copy: 

Teste: 

 Clerk of the United States Court of Appeals 

 for the Third Circuit 

_________________________________________________________________ 

1. Brief for Amicus Curiae National Jewish Commission on Law and 

Public Affairs, at 4. 

 40