NOT FOR PUBLICATION [Docket Nos. 55 & 64]

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

CAMDEN VICINAGE

RICHARD A. WILLIAMS,

 Plaintiff,

v.

ROWAN UNIVERSITY and

DONALD H. FARISH,

Defendants.

Civil No. 10-6542 (RMB/AMD)

OPINION

Appearances:

Fredric J. Gross

7 East Kings Highway

Mt. Ephraim, NJ 08059

Attorney for Plaintiff

Jacqueline Augustine

Office of the NJ Attorney General

RJ Hughes Justice Complex

PO Box 112

Trenton, NJ 08625

Attorneys for Defendant

BUMB, United States District Judge:

I. Introduction: 

This matter comes before the Court upon a motion for summary 

judgment submitted by Defendants Rowan University (“Rowan”) and 

Donald Farish (“Farish”), the former President of Rowan. [Docket 

No. 55]. Also pending is Plaintiff Richard A. Williams’ (the 

“Plaintiff”) cross-motion for sanctions [Docket No. 64]. For the 

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reasons set forth below, Defendants’ motion is granted and 

Plaintiff’s motion is denied. 

II. Factual Background:1

A. Introduction 

Pursuant to his Second Amended Complaint (the “SA Complaint”), 

Plaintiff asserts causes of action related to alleged race

discrimination and retaliatory action by the Defendants. The SA 

Complaint contains two counts: Count I for alleged unlawful 

discrimination based on race asserted pursuant to 42 U.S.C. § 1981,

via 42 U.S.C. § 1983, and Count II asserts claims for alleged 

retaliation in violation of N.J.S.A. § 2C:28-5.b (part of the 

criminal code dealing with retaliation against witnesses),2 § 

1 Where there are significant factual disputes between the parties, 

the facts should be construed in favor of the non-moving party. See

Kopec v. Tate, 361 F.3d 772, 775 (3d Cir. 2004). In addition, where 

Plaintiff has not expressly disputed a material fact asserted by 

Defendants, those facts are deemed admitted for purposes of this 

motion. See Local Rule 56.1 (“any material fact not disputed shall 

be deemed undisputed for purposes of the summary judgment motion.”). 

2 N.J.S.A. 2C:28-5.b, is a criminal statute. “A person commits an 

offense if he harms another by an unlawful act with purpose to 

retaliation for or on account of the service of another as a witness 

or informant. The offense is a crime of the second degree if the 

actor employs force or threat of force. Otherwise it is a crime of 

the third degree.” In the event that Plaintiff is attempting to 

bring a claim under N.J.S.A. 2C:28-5.b, such claim is dismissed 

because this Court is without jurisdiction to hear state criminal 

matters. 

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10:5-12(d)(the New Jersey Law Against Discrimination) and § 10:6-2.C

(the New Jersey Civil Rights Act). See SA Complaint Ct. II, ¶ 30.

Plaintiff is an African American male who became employed as 

Rowan University’s Equal Opportunity/Affirmative Action (“EEO/AA”) 

officer and Director in May 1984. Defs.’ Statement of Material Fact 

(“DSOF”) and Pl.’s Response to Statement of Material Fact (“PRSOF”) 

at ¶ 3-4. Defendant Rowan is a public university in the State of 

New Jersey. Id. at ¶ 6. Defendant Farish is a white male who was 

the president of Rowan from 1998 until 2011. Id. at ¶ 5. Rowan has 

several policies to prohibit discrimination in the workplace. Id.

at ¶¶ 7-12. These policies encourage employees to report prohibited 

conduct to the EEO/AA Officer. Id. at ¶ 13. 

B. Plaintiff’s Job Responsibilities 

As the EEO/AA Officer, Plaintiff reported directly to the 

president and his job responsibilities included “monitoring the 

institution’s commitments to Affirmative Action while assuring that 

minorities, women, and handicapped individuals had fair access to 

position vacancies.” PRSOF at ¶ 21. According to Plaintiff’s job 

description, Plaintiff also had to

(m)onitor the compliance of all University policies and 

procedures to ensure non-discrimination and a working 

environment free from harassment. Develop, implement, maintain 

and modify the University's diversity management and 

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affirmative action plan. Investigate student and staff 

allegations of discrimination and harassment . . . .

(Beran Certif., Ex. I). Plaintiff states that he had no authority 

to update the affirmative action plan and his proposed changes had 

to be approved by the deputy attorney general and that investigations 

were reserved to Robert Zazzalli, who was the assistant provost. 

PRSOF at ¶ 26. 

During his tenure, Plaintiff would delay the hiring process if 

he deemed an applicant pool not diverse enough because he “was 

required to take reasonable steps he needed necessary to ensure 

non-discrimination in hiring.” DSOF & PRSOF at ¶ 27. Plaintiff 

would look at the names of candidates for positions at Rowan, where 

they went to school, their publications and what organizations they 

belonged to in order “to help . . . determine if the pool had minority 

candidates in it.” PRSOF at ¶ 28. 

C. Performance Reviews and the DeSanto Trial 

Plaintiff received numerous negative performance reviews 

during his tenure at Rowan. While Plaintiff denies the relevance 

of his performance reviews to his termination of employment, he does 

not deny their existence. Instead, he deems these negative reviews 

as “unsupported malicious hearsay [that] reflects the turf jealousy 

or racism of department heads who wanted to do hiring their own way, 

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regardless of equal opportunity law.” Id. at ¶ 32. Plaintiff 

further states that he continued in office without demotion or 

discipline and with routine pay raises prior to the Farish regime.” 

Id. at ¶ 33. 

Plaintiff received his first negative evaluation the year he 

started at Rowan. In a 1984 review by then Rowan president Mark M. 

Chamberlain, Plaintiff was told that the president had serious 

concerns about his performance. The review states “you cannot 

substitute your judgment of the qualifications of a particular 

candidate for the judgment of others directly in the process.” DSOF 

at ¶ 32. About a year later, on September 23, 1985, Rowan’s then 

president Dr. Herman James wrote a similar letter about Plaintiff’s 

performance. The letter indicated that Plaintiff, inter alia, 

“continued to impose [his] concerns of the appropriateness of the 

search in matters not related to affirmative action.” DSOF & PROF 

¶ 33-34.

In 1998, Defendant Farish became Rowan’s president. DSOF at 

¶ 36. Farish received complaints that Plaintiff was too intrusive, 

heavy-handed, and insulting in the hiring search process. Id. at 

¶ 37. Farish testified at his deposition that Plaintiff’s conduct 

became “illegal in the sense that [Plaintiff] was focused far too 

much on having people who in his view met the requirements for the 

position and wanting to substitute his judgment for the judgment of 

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the search committee . . . . [Plaintiff’s] view was if a minority 

candidate meets the minimum qualifications for the position, the 

search is over, hire them [but] that’s not how [Rowan] did things 

at all.” DSOF at ¶ 37 (quoting Farish Dep., Beran Ex. E at 

111:1-112:5 & 112:5-9). Farish testified that shortly after he 

became president he “began to receive complaints from people as I 

got to know them, people who were on the faculty, people who were 

department chairs, people who said that Dick Williams was too 

intrusive in the search process.” (Farish Dep. at 111:9-13). 

Plaintiff characterizes these “purported complaints [as] efforts by 

departmental functionaries to free the hiring process [at Rowan] from 

equal opportunity oversight.” PRSOF at ¶ 37. 

In 2000, Farish gave Plaintiff a negative written performance 

review. He stated that Plaintiff was improperly controlling the 

hiring process by requiring his signature of approval to proceed with 

both the original pool and short list of candidates and also by 

sitting in on interviews and some meetings of search committees. 

DSOF at ¶ 40. Plaintiff denies that he took control of the hiring 

process and that requiring his signature was “fully consistent” with 

his responsibility to ensure non-discriminatory hiring. PRSOF at 

¶ 40. Plaintiff received another unsatisfactory review in February 

2002 wherein Farish cited his dissatisfaction with Plaintiff’s 

performance (e.g., “his heavy-handed, bull-in-the-china shop 

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approach to [the] job”). This was cited as the reason for not 

offering Plaintiff a salary increase for that year. DSOF at ¶ 43. 

In September 2002, Plaintiff testified pursuant to subpoena in 

the United States District Court in the matter of DeSanto v. Rowan 

University, a reverse race discrimination case brought by a Rowan 

employee. Id. at ¶ 45. A jury returned a verdict in favor of

plaintiff DeSanto and against Rowan. In his SA Complaint, Plaintiff 

avers that he was blamed for the DeSanto loss at a meeting that took 

place on September 31, 2002. Id. at ¶ 48. Plaintiff contends that 

he was clearly blamed for the DeSanto loss and, as a result, was not 

given a 3 percent raise previously promised by Farish. PRSOF at ¶ 

49. In December of 2002, Farish sent Plaintiff a letter stating that 

“[v]irtually the only evidence that appeared to be used to support 

[the DeSanto verdict] came from your records and reports.” DSOF at 

¶ 51. Farish’s letter went on to add:

[i]f this were a private company, there is no question in my 

mind that you would have been terminated by this point. I 

resist such an action based on my belief that your intentions 

are noble, however flawed may be your methods. 

 

DSOF at ¶ 52. 

Approximately, three years later, on August 11, 2005, Katherine 

Gover, Rowan’s Director of Human Resources, noted in Plaintiff’s 

evaluation that she was not recommending a salary adjustment because:

Plaintiff was only meeting with new minority and women faculty (as 

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opposed to all new faculty), Plaintiff had a practice of not always 

issuing final determination letters to those accused of violating 

Rowan’s discrimination policy, and because Plaintiff left an 

inappropriate note on a candidate’s resume. DSOF at ¶ 54. The 

inappropriate note was attached to the resume of a candidate and 

indicated that the individual was “easy on the eyes.” (DSPF & PRSOF 

at ¶ 29). Although the note was attached by someone other than 

Plaintiff, Plaintiff admits that he failed to remove the note, which 

was meant as a “joke”, (although he says he intended to), before 

forwarding the resume to the Human Resources Director of Recruitment. 

PRSOF at ¶ 29. With respect to the remaining contents of Gover’s 

letter, Plaintiff contends that the criticisms were unwarranted and 

influenced by concerns about him articulated by Farish or others. 

PRSOF at ¶ 53. 

Defendants also claim that in the fall of 2005, Plaintiff failed 

to investigate a student’s sexual harassment complaint. DSOF at ¶

55. Plaintiff, however, argues that the alleged victim declined to 

pursue the matter formally, which would have triggered an 

investigation. Id. at ¶ 56. The parties dispute whether an 

investigation based on the student’s complaint alone was required. 

DSOF & PRSOF ¶ 58-62. However, Plaintiff admits that Robert 

DeAugustine of the Human Resources unit investigated the matter after 

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a friend of the alleged victim complained about Plaintiff’s failure 

to pursue the matter. PRSOF at ¶60. 

In a September 4, 2006 evaluation of Plaintiff, Richard Hale, 

Interim Vice President for Administration and Finance, stated that 

Plaintiff’s performance was “below average” because “individuals 

appear to have little confidence in [his] ability to conduct a fair 

process, consistent with applicable laws, rules and regulations” in 

reference to Plaintiff’s investigations. DSOF at ¶ 63-65. 

Plaintiff contends that while Hale was not employed by Rowan during 

the DeSanto trial, Hale was told by others that Plaintiff caused the 

DeSanto loss and thus, the evaluation was retaliatory. PRSOF at ¶

64. Hale, however, still recommended that Plaintiff receive a 3 

percent raise in 2006. DSOF & PRSOF ¶ 66. 

As of September 4, 2006, Defendants contend that Dr. Marie 

Tiemann, the Executive Director of Human Resources, became 

Plaintiff’s day-to-day supervisor. DSOF at ¶ 67. Plaintiff, 

however, objected to her supervision because he could only be 

supervised by a direct report to the president or his designee.

PRSOF at ¶ 67. On December 5, 2006, Tiemann sent a letter to Hale

indicating that Plaintiff’s performance was not meeting the needs 

of the campus community because they had “no confidence in [his] 

ability to fairly hear discrimination and affirmative action 

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complaints.” DSOF at ¶ 69.3 As a result, Tiemann recommended giving 

Plaintiff “one year’s notice and [placing] him on administrative 

leave for the year.” DSOF at ¶ 70.

D. Plaintiff’s Move to Temporary Assignment 

Plaintiff was on sick leave from mid-November 2006 through late 

January 2007 and February 7, 2007 through March 26, 2007. DSOF & 

PRSOF at ¶ 71. On March 28, 2007, Plaintiff met with Vice President 

Hale who told Plaintiff that he “would no longer be the affirmative 

action officer effective June 30, 2007.” DSOF at ¶ 72. Plaintiff 

then met with Farish in April 2007, and Plaintiff requested that he 

be able to stay for another eighteen months so that he would receive 

full health and retirement benefits after his retirement. DSOF at 

¶ 73. Plaintiff suggested a position for himself as an Educational 

Opportunity Fund counselor (hereinafter "EOF Counselor") at Rowan’s 

Camden campus. DSOF at ¶ 74.

In consideration of Plaintiff's length of service at Rowan and 

Plaintiff's failing health, President Farish told the Plaintiff that

he could report to the Dean of Rowan's Camden campus as an EOF 

Counselor, which was a “temporary terminal assignment,” and that 

Plaintiff could retire on December 31, 2008. DSOF at ¶ 76. 

3 As discussed in more detail below, Plaintiff seeks to bar the 

testimony of Tiemann via a cross-motion filed for alleged discovery 

abuses by Defendants. [Docket No. 64]. 

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Plaintiff contends that there is “no document in the record that 

indicates that anybody in the Rowan hierarchy is authorized to make 

a ‘temporary terminal assignment.’” PRSOF at ¶ 76. Despite his 

denial as to the nature of his assignment or the authority to make 

such assignment, Plaintiff does not deny the benefit of the new 

assignment: he was able to reach “his twenty-five years of service 

and receive permanent health benefits and pension for life, instead 

of being terminated eighteen months earlier on June 30, 2007.” DSOF 

at ¶ 77. Moreover, Plaintiff does not deny that he received the same 

salary and benefits during the temporary assignment in the amount 

of $83,926.78, even though the EOF position normally did not carry 

such a high salary. DSOF at ¶¶ 79-80.

The Defendants contend that because the temporary position was 

“terminal,” Plaintiff’s employment with Rowan would end on December 

31, 3008, regardless of whether Plaintiff chose to retire. 

Plaintiff contends that as an EOF counselor at Rowan’s Camden campus, 

he was a member of the “AFT” - presumably the American Federation 

of Teachers, though Plaintiff does not define that term for the Court. 

PSOF at ¶ 78. Plaintiff contends that the AFT contract makes no 

provision for a terminal appointment and that the union’s collective 

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bargaining agreement does not contemplate such an assignment. Id.

at 78-79.4 

On June 26, 2008, approximately six months before his end date, 

Plaintiff spoke with Farish and requested that he remain an EOF 

Counselor at Rowan’s Camden campus for an additional year. DSOF at 

¶ 81. President Farish later conveyed to Plaintiff that Dr. Tyrone 

McCombs (an African American male), the head of the Camden campus, 

did not wish to extend Plaintiff's position. Id. at ¶ 82. Plaintiff 

contends that McCombs was told by his (McComb’s) predecessor of 

Farish’s directive “to get plaintiff off of Rowan’s Glassboro Campus” 

because Plaintiff “had lost the university a lot of money in his prior 

job as an affirmative action officer.” PRSOF at ¶ 83.5 

E. Plaintiff’s Retirement 

After speaking with Farish, Plaintiff drafted a letter on June 

26, 2008, stating that he was retiring. DSOF at ¶ 84. Two and 

one-half months later, however, on September 12, 2008, Plaintiff sent 

a letter to President Farish attempting to retract his anticipated 

December 31, 2008 retirement. DSOF at ¶ 84-85. While the 

Defendants aver that once an administrator submits retirement 

4 The Plaintiff has not provided the Court with the collective 

bargaining agreement. 

5 Beyond Plaintiff’s argument there is no evidence of this in the 

record. Instead, Plaintiff relies on the declaration of counsel and 

an email drafted by counsel. See Gross Decl., Ex. 1. 

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paperwork it cannot be rescinded, Plaintiff contends that pursuant 

to the AFT contract, the request for retirement and any effort to 

rescind it must go to the Board of Trustees.6 

Farish informed Plaintiff on October 16, 2008 that he could not 

retract his retirement. Defendants communicated their denial to 

Plaintiff in a letter dated October 16, 2008. The letter reads, in 

relevant part: 

This is in response to your letter, dated September 12, 

2008, seeking to recontract for another year. 

Unfortunately, recontracting for another year is not 

possible. I must inform you that as previously agreed, 

your last day of employment at Rowan will be December 31, 

2008.

 

As you know, you were provided with a terminal contract 

ending on December 31, 2008. My letter to you, dated June 

5, 2007 confirmed that you will leave University 

employment on that date. By letter, dated July 25, 2007, 

you confirmed your understanding of the arrangement. You 

indicated that you would let me know by June 30, 2008 if 

you requested a renegotiation of your continuation at 

Rowan beyond December 31, 2008.

I received a letter from you, dated June 26, 2008, stating 

your “formal indication” that you would be leaving Rowan 

effective December 31, 2008. In reliance on your letter, 

your name was forwarded to the Board of Trustees as part 

of personnel actions. The Board formally accepted your 

retirement from Rowan University at its September 10, 2008 

meeting.

Defs.’ Ex. BB. Thus, Plaintiff retired effective December 31, 2008. 

Plaintiff does not deny that as a result of his retirement, he 

6 Again, the contract was not provided by Plaintiff. 

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receives full health and retirement benefits for life.7 DSOF at ¶

88. 

III. Summary Judgment Standard

Summary judgment shall be granted if “the movant shows that 

there is no genuine dispute as to any material fact and the movant 

is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). 

A fact is “material” if it will “affect the outcome of the suit under 

the governing law . . . .” Anderson v. Liberty Lobby, Inc., 477 U.S. 

242, 248 (1986). A dispute is “genuine” if it could lead a “reasonable 

jury [to] return a verdict for the nonmoving party.” Id. When 

deciding the existence of a genuine dispute of material fact, a 

court’s role is not to weigh the evidence; all reasonable 

“inferences, doubts, and issues of credibility should be resolved 

against the moving party.” Meyer v. Riegel Prods. Corp., 720 F.2d 

303, 307 n.2 (3d Cir. 1983). However, a mere “scintilla of evidence,” 

without more, will not give rise to a genuine dispute for trial. 

Anderson, 477 U.S. at 252. Further, a court does not have to adopt 

the version of facts asserted by the nonmoving party if those facts 

are “utterly discredited by the record [so] that no reasonable jury” 

7 Plaintiff responds to the Defendants’ factual assertion that they 

could have insisted that Plaintiff leave effective June 30, 2007, 

but extended his position as “a favor . . . so that [P]laintiff could 

retire with a pension and health benefits for life” by stating “Rowan 

would have invited a suit that much earlier if it had fired 

[P]laintiff in 2007.” DSPF & PRSOF at ¶ 90. 

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could believe them. Scott v. Harris, 550 U.S. 373, 380 (2007). In 

the face of such evidence, summary judgment is still appropriate 

“where the record . . . could not lead a rational trier of fact to 

find for the nonmoving party . . . .” Matsushita Elec. Indus. Co. 

v. Zenith Radio Corp., 475 U.S. 574, 587 (1986). 

The movant “always bears the initial responsibility of 

informing the district court of the basis for its motion, and 

identifying those portions of ‘the pleadings, depositions, answers 

to interrogatories, and admissions on file, together with the 

affidavits, if any,’ which it believes demonstrate the absence of 

a genuine issue of material fact.” Celotex Corp. v. Catrett, 477 U.S. 

317, 323 (1986) (quoting Fed. R. Civ. P. 56(c)). Then, “when a 

properly supported motion for summary judgment [has been] made, the 

adverse party ‘must set forth specific facts showing that there is 

a genuine issue for trial.’” Anderson, 477 U.S. at 250 (quoting Fed. 

R. Civ. P. 56(e)). The non-movant’s burden is rigorous: it “must point 

to concrete evidence in the record”; mere allegations, conclusions, 

conjecture, and speculation will not defeat summary judgment. 

Orsatti v. N.J. State Police, 71 F.3d 480, 484 (3d Cir. 1995); Jackson 

v. Danberg, 594 F.3d 210, 227 (3d Cir. 2010) (citing Acumed LLC v. 

Advanced Surgical Servs., Inc., 561 F.3d 199, 228 (3d Cir. 2009)) 

(“[S]peculation and conjecture may not defeat summary judgment.”).

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IV. Analysis of Motion for Summary Judgment

A. Count I (Race Discrimination, 42 U.S.C. § 1981)

Plaintiff’s only federal claim is one for race discrimination 

asserted under 42 U.S.C. § 1981, via 42 U.S.C. § 1983. Section 1981 

provides:

All persons within the jurisdiction of the United States shall 

have the same right in every State and Territory to make and 

enforce contracts, to sue, be parties, give evidence, and to 

the full and equal benefit of all laws and proceedings for the 

security of persons and property as is enjoyed by white 

citizens, and shall be subject to like punishment, pains, 

penalties, taxes, licenses, and exactions of every kind, and 

to no other.

42 U.S.C. § 1981. Subsection (c) of that statute provides that these 

rights "are protected against impairment by nongovernmental 

discrimination and impairment under the color of state law." Id. 

The only claim that has survived the Defendants’ statute of 

limitations affirmative defense is Plaintiff’s allegation that 

Defendants’ decision not to rescind his retirement decision was 

racially discriminatory. See Court’s Opinion, Docket No. 23 at 17. 

For the reasons set forth below, this Court will grant summary 

judgment in favor of Defendants on this claim. 

1. Impact of State Actor Status 

Defendants are correct that, pursuant to McGovern v. City of 

Philadelphia, 554 F.3d 114, 120-21 (3d Cir. 2009), a 42 U.S.C. § 1981 

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claim cannot be asserted against a state actor. That said, in the 

instant case, as set forth in this Court’s prior opinion dealing with 

the statute of limitations, Plaintiff may assert § 1981 claims 

pursuant to § 1983 and such claims may be properly asserted against 

a state actor. See e.g., McGovern, 554 F.3d at 120-21 (“we hold that 

‘the express cause of action for damages created by § 1983 constitutes 

the exclusive federal remedy for violation of the rights guaranteed 

in § 1981 by state governmental units.’”)(quoting Jett v. Dallas 

Indep. Sch. Dist., 491 U.S. 701, 733 (1989); Byrd v. City of 

Philadelphia, No. 12-4520, 2013 U.S. Dist. LEXIS 151321, at *12 (E.D. 

Pa. Oct. 22, 2013)(allowing plaintiffs to amend the complaint to 

allege their § 1981 claims under § 1983 against state actors). Thus, 

the Court cannot dismiss Plaintiff’s race discrimination claim on 

this basis. 

Contrary to the Plaintiff’s assertion in his opposition brief, 

this Court has never considered the argument asserted by Defendants 

that Rowan University is not a “person” for purposes of § 1983. Pl.’s 

Opp. Br. at 2. While these arguments were presented in conjunction 

with the motion to dismiss the Plaintiff’s original complaint, [see

Docket No. 10], this Court dismissed that complaint on other grounds 

and never reached the merits of those arguments. Plaintiff’s 

request for sanctions is, therefore, meritless. See Pl.’s Opp. Br. 

at 5 n.1. 

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Moving to the merits of Defendants’ argument, the Court notes 

that the SA Complaint is clear that Defendant Farish is “sued . . 

. in his individual capacity.” Docket No. 26 at ¶ 8. As such, this 

Court need not review the Defendants’ argument that Farish is not 

a “person” for purposes of § 1983. Hafer v. Melo, 502 U.S. 21, 23 

(1991) ("We . . . hold that state officials sued in their individual 

capacities are 'persons' for purposes of § 1983.").

With respect to Defendant Rowan, there is clear support for the 

proposition that the university is not a person for purposes of § 

1983. Cottrell v. Keyshonna Norman, No. 12-1986, 2014 U.S. Dist. 

LEXIS 101645, *23 n.7 (D.N.J. July 25, 2014)(“because § 1983 claims 

may only be asserted against a ‘person’ . . . these claims fail 

against Rowan University. . . .”); cf. Davis v. Western Psychiatric 

Inst. and Clinic, 146 F. App’x 563, 564-65 (3d Cir. 2005)(citing cases 

finding that a state university is the alter ego of the state and 

therefore not a “person” for purposes of § 1983); Musila v. Lock Haven 

Univ., 970 F. Supp. 2d 384, (M.D. Pa. 2013)(finding that Lock Haven 

University not a person for purposes of § 1983). For this reason, 

Plaintiff’s claim for race discrimination under § 1981, asserted

pursuant to § 1983, can be dismissed against Rowan University because 

it is not a person for purposes of § 1983. However, even if this 

Court were to find that Rowan University was a person under § 1983, 

the Court finds that summary judgment is nevertheless appropriate 

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because Plaintiff’s claim fails on the merits for the reasons set 

forth in more detail below. 

2. Eleventh Amendment Immunity Arguments 

In the alternative to the argument that Defendants Rowan and 

Farish, in his official capacity, are not persons under § 1983, 

Defendants contend that both Rowan and Farish are entitled to 

Eleventh Amendment immunity. The Eleventh Amendment provides:

The Judicial power of the United States shall not be construed 

to extend to any suit in law or equity, commenced or prosecuted 

against one of the United States by Citizens of another State, 

or by Citizens or Subjects of any Foreign State.

This sovereign immunity “extends to state agencies and state 

officers, ‘as long as the state is the real party in interest.’”

Estate of Lagano v. Bergen County Prosecutor's Office, 769 F.3d 850, 

*16 (3d. Cir. 2014)(quoting Fitchik v. N.J. Transit Rail Operations, 

873 F.2d 655, 659 (3d Cir. 1989)). “To determine whether the state 

is the real party in interest, this Court considers three factors:

(1) whether the money to pay for the judgment would come from the 

state; (2) the status of the agency under state law; and (3) what 

degree of autonomy the agency has.” Id. (citing Fitchik, 873 F.2d 

at 659). This Court is careful to heed the Third Circuit’s 

instruction that “the Eleventh Amendment inquiry is analytically 

distinct from the question of whether a[n] . . . entity is a ‘person’ 

for § 1983 purposes.” Id. at n.8. To the extent Plaintiff asks for 

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prospective injunctive relief, such relief is not barred by the 

Eleventh Amendment. Smith v. Sec'y of Dep't of Environmental 

Protection, No. 13-1569, 2013 U.S. App. LEXIS 19095, 2013 WL 5071305, 

at *1 (3d Cir. Sept. 16, 2013). That said, however, based upon this 

Court’s determination that all of Plaintiff’s claims fail on the 

merits, a review of what prospective relief Plaintiff may be seeking 

is not warranted. 

Turning to damages, the Defendants correctly point out that 

other Courts have found that Rowan was entitled to Eleventh Amendment 

immunity in other matters. See e.g., Nannay v. Rowan College, 101 

F. Supp. 2d 272, (D.N.J. 2000)(finding that Rowan was entitled to 

Eleventh Amendment immunity after reviewing the factors set forth 

in Fitchik in conjunction with affidavit from Rowan addressing those 

factors). In the instant matter, however, the Court finds it telling 

that the Defendants have neither mentioned Fitchik in their moving 

papers nor have they submitted an affidavit addressing those factors 

as was done in the Nannay case. Because Defendants have not provided 

this Court with sufficient evidence to address the Fitchik factors, 

and because this Court grants summary judgment on other grounds, the 

Court will not resolve the issue of Eleventh Amendment Immunity. See

Estate of Lagano, 769 F.3d at *17 (remanding case to the District 

Court and directing the Court to apply Fitchik to determine whether 

Eleventh Amendment immunity was applicable). 

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3. Race Discrimination Claims Against Rowan 

In order for Plaintiff to establish liability against Rowan 

under § 1981, Plaintiff must satisfy the requirements set forth in 

Monell v. Dep’t of Soc. Servs. of the City of N.Y., 436 U.S. 658, 

690 (1978), for establishing municipal liability under § 1983.8 See

Thomas v. City of Philadelphia, 573 F. App’x 193, 197 n.4 (3d Cir. 

2014)(noting that Monell would need to be applied to determine if 

the City could be subject to liability); Daniels v. School Dist. of 

Philadelphia, 982 F. Supp. 2d 462, 477 (E.D. Pa. 2013). To establish 

liability against Rowan under Monell, Plaintiff must demonstrate 

that Rowan had a policy or practice that was the “‘moving force’ 

behind the alleged violation.” Daniels, 982 F. Supp. 2d at 477. 

Here, there is absolutely no evidence presented by Plaintiff that 

an official policy or practice of Rowan was the moving force behind 

the alleged race discrimination. In fact, Plaintiff’s 

counter-statement of material facts submitted in opposition to 

summary judgment is entirely devoid of any reference to a custom or 

policy of Rowan’s that was the “force” behind the discrimination 

alleged. As such, this Court will grant summary judgment in favor 

of Defendants with respect to Plaintiff’s race discrimination claims 

8 Rowan may not be held liable for the alleged conduct of its 

subordinates under a theory of respondeat superior. See Monell, 436 

U.S. at 691 (1978) (finding no vicarious liability for a municipal 

"person" under 42 U.S.C. § 1983).

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asserted against Rowan. See Brown, 539 F. App’x at *27 (affirming 

summary judgment as to claims against SEPTA where there was no 

evidence of unconstitutional policy, custom or practice); Daniels, 

982 F. Supp. 2d at 478 (granting summary judgment on § 1981 claim 

where plaintiff “presented no evidence of a policy or practice on 

the part of the School District endorsing race discrimination or a 

failure on the part of the School District to train its employees 

not to discriminate on the basis of race.”).

4. Race Discrimination Claims Against Farish 

Defendants argue that Defendant Farish is entitled to qualified 

immunity. “An official sued under § 1983 is entitled to qualified 

immunity unless it is shown that the official violated a statutory 

or constitutional right that was “‘clearly established’” at the time 

of the challenged conduct.” Plumhoff v. Rickard, 134 S. Ct. 2012, 

2023 (2014). The question of whether Farish is entitled to qualified 

immunity requires this Court to engage in a two-step analysis. 

Pursuant to the first step, the Court must ask whether there is an 

issue of fact as to whether Farish’s conduct violated Plaintiff’s 

statutory right to be free from discrimination on the basis of race. 

If the Court determines that such a right has been violated, taking 

all inferences in favor of Plaintiff, it must then ask “whether that 

right was ‘clearly established’ at the time of the challenged

conduct.” Dougherty v. Sch. Dist. of Phila., No. 13-3868, 2014 U.S. 

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App. LEXIS 22050, at *12 (3d Cir. Nov. 21, 2014).

The Court first turns to the determination of whether 

Plaintiff’s right to be free from discrimination was violated when 

Farish refused to rescind Plaintiff’s decision to retire. In the 

employment discrimination context, § 1981 claims are analyzed under 

the familiar three-step, burden-shifting framework established in 

McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), and refined 

in Texas Department of Community Affairs v. Burdine, 450 U.S. 248 

(1981). See Davis v. City of Newark, 285 F. App'x 899, 903 (3d Cir.

2008); Wallace v. Federated Dep’t Stores, Inc., 214 F. App’x 142, 

144-45 (3d Cir. 2007); Campbell v. Sup. Ct. of N.J., No. 11-555, 2012 

WL 1033308, at *17 (D.N.J. Mar. 27, 2012). 

“At the first step, [plaintiff] must establish a prima facie 

case of discrimination, meaning he must show that: (1) he is a member 

of a protected class; (2) he satisfactorily performed his required 

duties; (3) he suffered an adverse employment action; and (4) the 

adverse employment action occurred "under circumstances that raise 

an inference of discriminatory action . . . ." Thomas v. City of 

Phila., 573 F. App’x 193, 195-96 (3d Cir. July 15, 2014)(citing

Sarullo v. U.S. Postal Serv., 352 F.3d 789, 797 (3d Cir. 2003)).9 

9 The parties refer to the prima facie case under § 1983 for the denial 

of equal protection. See Defs.’ Br. at 23; Pl.’s Opp. Br. at 7. 

While Section 1981 has been deemed to be “essentially coterminous 

with the Equal Protection Clause, in that ‘purposeful discrimination 

23

 

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“One way to meet the fourth element of the prima facie case is to 

show ‘that the employer has treated more favorably similarly situated 

persons not within the protected class.’” Id. at 196 (quoting Jones 

v. Sch. Dist. of Phila., 198 F.3d 403, 413 (3d Cir. 1999)). 

There is no dispute that Plaintiff meets the first prong of the 

test - he is an African American. As to the second prong of the test, 

as discussed above, there is ample evidence in the record that 

Plaintiff was not satisfactorily performing the duties of his 

position. See e.g., Plaintiff’s performance review letters, Defs.’ 

Exs. D, H, J, K, M-T. The Court will assume, however, that Plaintiff 

was satisfactorily performing his duties as required under the prima 

facie test and address the other factors. 

Turning to the third prong of the test, whether the refusal to 

allow Plaintiff to rescind his resignation constitutes an adverse 

employment action, the parties do not address that test. It is 

questionable, however, whether Plaintiff can satisfy this prong. 

An employer’s refusal to allow an employee to rescind his resignation 

has been held not to be an adverse employment action. Refusing to 

rescind a resignation, absent a contractual or statutory duty to do 

that violates the Equal Protection Clause of the Fourteenth Amendment 

will also violate § 1981’” Guan N. v. N.Y. City Dep't of Educ., 2014

U.S. Dist. LEXIS 44783, *86 (S.D.N.Y. Mar. 24, 2014)(citing Gratz 

v. Bollinger, 539 U.S. 244, 276 n.23 (2003)), this Court finds the

more appropriate test is the test employed by the Third Circuit in 

Thomas as set forth above, which incorporates the element set forth 

by the parties regarding similarly situated individuals. 

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so, is “not an adverse employment action for the simple reason that 

the employment relationship has ended.” See Schofield v. Metro Life 

Ins. Co., No. 03-357, 2006 WL 2660704 at *9 (W.D. Pa. Sept. 15, 2006) 

aff’d 2007 U.S. App. LEXIS 25468 (3d Cir. Oct. 30, 2007); see also

Hibbard v. Penn-Trafford Sch. Dist., No. 13-622, 2014 WL 640253, at 

*10 (W.D. Pa. Feb. 19, 2014) (“Because plaintiff’s resignation was 

voluntary and there was no constructive discharge, the District’s 

failure to accept her rescission of her voluntary resignation was 

not an adverse employment action.”)(citations omitted)).

Here, Plaintiff contends that he became an AFT member and under 

that collective bargaining agreement (“CBA”), he was somehow 

entitled to rescind his resignation. The Plaintiff has failed to 

provide this Court with any evidence supporting this assertion. In 

fact, his deposition undermines the argument that the AFT deemed him 

entitled to rescind his resignation. See Pl.’s Dep. 136:10-22 

(indicating that Plaintiff disagreed with the position taken by the 

AFT that “there is nothing more that the AFT [could] do for you in 

regards to this matter” because Plaintiff was “on a terminal 

contract[.]”). Moreover, he does not provide this Court with a copy 

of the allegedly relevant CBA and the brief language he cites from 

that agreement does not support his point. Plaintiff cites to 

“Article XIII.A” that purportedly states that “Appointment and 

reappointments of employees shall be made by the Board of Trustees 

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of each College.” PRSOF, ¶ 86, citing to Gross Decl. ¶ 4. This 

language, however, says nothing about a request to rescind a 

resignation, as is the case here. Thus, Plaintiff cannot establish 

this prong of the prima facie test. 

Even assuming that the refusal to rescind his resignation 

constitutes an adverse action, Plaintiff has failed to provide any 

evidence to demonstrate the fourth prong, that the alleged adverse 

employment action occurred "under circumstances that raise an 

inference of discriminatory action." In Plaintiff’s Statement of 

Material Facts, he lists the following as support for his allegation 

that he was treated differently due to his race (and in support of 

his state law retaliation claim): 

• Farish, Hall and Zazzali were all white males who “contrived 

to remove [P]laintiff from Rowan in the shared 

incredibly-mistaken [sic] belief that [P]laintiff’s

testimony caused the DeSanto loss.” PSOF at ¶ 101. 

• “Hale, Gover and Tiemann all signed documents adverse to 

[P]laintiff which were subjective, laced with hearsay, and in 

substantial measure inconsistent with the truth.” Id.

• Plaintiff was entitled to have the Board of Trustees accept or 

reject his effort to withdraw his notice of retirement. Id.

• “Rowan permitted at least two non-black employees Grupenhoff 

and Rowan – to with draw their notices of retirement during the 

same time frame that Farish would not allow Plaintiff to do so.”

Id.

• Farish had no authority to reject Plaintiff’s withdrawal of his 

resignation, because only the Trustees have that authority. Id.

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The Court notes that the mere fact that Farish is Caucasian is not 

enough to satisfy this prong. See Coulton v. Univ. of Penns., 237 

Fed. Appx. 741, 748 (3d Cir. 2007) ("The mere fact that [the adverse 

decision-makers] were of a different race than [the employee], 

however, is insufficient to permit an inference of 

discrimination."). Instead, Plaintiff attempts to supply 

sufficient evidence that he was treated differently from other 

individuals similarly situated. Pl.’s Opp. Br. at 7. 

Specifically, Plaintiff cites to Dr. Richard Grupenhoff, a 

non-African-American Professor who had requested to retire in 

December of 2008 but was allowed to retract his retirement. 

Plaintiff also cites to Dr. Janice Rowan, another 

non-African-American professor who was also allowed to retract her 

retirement request. Id. at ¶ 11-12.10 As Defendants point out, and 

10 While not explicitly discussed by the parties, the Court notes that 

Plaintiff’s deposition contains other statements regarding alleged 

ways he was treated differently based on race. These amount to 

nothing more than either vague or unsupportive conclusory assertions 

insufficient to raise an inference of discrimination. See Pl.’s 

Dep. 156-158 (stating that he believes he did not receive salary 

increases because he was African American, but noting that he does 

not know whether others who had performance issues received salary 

raises. He also states that Rick Hale contacted him when he was on 

sick leave telling him “not to work” and that this contact was, 

somehow, a form of harassment because “someone else who is African 

American [Vanetta Turner] . . . went out on sick leave not too long 

after I came back, and they were hassling her to do work from home. 

So which is it?”). Plaintiff’s attempt to create inconsistency here 

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Plaintiff does not deny, these two employees were full-time tenured 

faculty members, unlike Plaintiff. DSOF at ¶ 92 (citing Pl.’s Dep. 

150:14-24). During his deposition, Plaintiff learned – and does not 

dispute - that an African American faculty member was permitted to 

change his retirement date and that two Caucasian faculty members 

were not permitted to change their retirement dates. (Pl.’s Dep. 

151:8-152:5). 

Plaintiff argues that “[i]t makes no material difference that 

the comparators were tenured faculty or that they operated under a 

differently-named pension program.” Pl.’s Opp. Br. at 7. Instead, 

Plaintiff contends that

[w]hat is crucial is that Farish arrogated to himself the right 

to make the final decision on [P]laintiff’s effort to rescind 

his notice of termination when only the Board of Trustees has 

final authority to accept or reject such a rescission. 

Therefore white comparators were allowed to put their 

rescission requests to the Board of Trustees whereas Richard 

Williams, an African American was not allowed to do so. 

Pl.’s Br. at 7-8. Plaintiff further argues that he cannot identify 

any other employee who was selected for a temporary terminal 

assignment because there is no authority for imposing such an 

assignment on a Rowan employee and, therefore, he “was denied the 

is futile. What this testimony reveals is that Defendants did not 

want Plaintiff to work while on sick leave. How Plaintiff could view 

this as a form of discrimination is bewildering. 

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Equal Protection of the Law when Farish singled him out for that bogus 

job title.” Pl.’s Br. at 9. 

In order to qualify as similarly situated, the “relevant aspects 

of employment need to be nearly identical,” to the purported 

comparator. Smart v. City of Phila., No. 10-1096, 2013 U.S. Dist. 

LEXIS 73588 at *17 (E.D. Pa. May 23, 2013)(finding that plaintiff 

could not establish a prima facie case under § 1981 under Third 

Circuit precedent where alleged comparators had a different level 

of seniority); see Warenecki v. City of Philadelphia, No. 10-1450, 

2010 U.S. Dist. LEXIS 116912, *22 (E.D. Pa. Nov. 3, 2010)(noting that 

to be similarly situated requires comparators to have engaged in the 

same conduct as a plaintiff and share all relevant aspects of 

employment). Here, as Plaintiff admits, the alleged similarly 

situated individuals were tenured professors in clear contrast to 

Plaintiff’s position. Moreover, the alleged similarly situated 

comparators have not been shown by Plaintiff to have had similar 

performance issues. See Warfield v. McKenzie, 460 F. App’x 127, 130 

(3d Cir. 2012)(noting that even if plaintiff and comparator had the 

same responsibilities, they did not have the same performance 

problems and thus were not similarly situated). Additionally, 

while Plaintiff contends he is unable to find another individual who 

was given a temporary terminal assignment and allowed to rescind a 

resignation, this Court notes that the bar is not that high; Plaintiff 

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has failed to identify any individual who was not a tenured faculty 

member that was allowed to rescind a resignation. See Smart, 

10-1096, 2013 U.S. Dist. LEXIS 73588, at *17 (“To show that an 

employee is ‘similarly situated,’ relevant aspects of employment 

need to be nearly identical.”)(emphasis added). In sum, Plaintiff 

has failed to satisfy the fourth prong of the prima facie test by 

providing evidence that others who were similarly situated were 

treated more favorably. See Thomas, 573 F. App’x at 196 (affirming 

summary judgment on plaintiff’s § 1981 race discrimination claim

where plaintiff’s reliance on comparators was misplaced as both 

alleged comparators differed from plaintiff). 

Having failed to provide evidence of similarly situated 

comparators that were more favorably treated, Plaintiff must provide 

other adequate evidence to support an inference of discrimination. 

See Warenecki, 2010 U.S. Dist. LEXIS 116912, at *22 (“In the 

alternative, Plaintiff may establish the fourth element of her prima 

facie case by producing other evidence adequate to support an 

inference of discrimination.”). To this end, Plaintiff argues that 

Farish asked Plaintiff to stop enforcing equal opportunity in 

construction projects and that the university gave a non-minority 

applicant a “wired appointment as Vice-President of Student Affairs 

even where a more qualified minority candidate had been ranked number 

one by the search committee.” Pl.’s Br. at 11. Moreover, in his 

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brief, Plaintiff avers that Farish asked Plaintiff in 1998, “What, 

you don’t want to work for a white guy who is now the President?” 

Id. None of these averments is sufficient to raise an inference of 

race discrimination related to Farish’s refusal to allow Plaintiff 

to rescind his resignation in 2008. See Joseph v. New Hersey Rail 

Operations Inc., No. 13-4430, 2014 U.S. App. Lexis 18287, at *5 (3d 

Cir. Sept. 24, 2014)(Here, "[e]ven if we were persuaded that the use 

of the phrase 'you people' in this context would constitute direct 

evidence . . . [Joseph] ha[s] not shown that [NJ Transit]'s decision

maker [—Wigod—] relied on [Joseph's] race" in deciding to terminate 

him.”); Warfield, 460 F. App’x at 130 (finding that allegations that 

plaintiff was subjected to excessive monitoring and scrutiny, yelled 

at, belittled by her supervisor and required to wear suits while a 

co-worker was allowed to dress more casually did not imply race 

discrimination). 

In sum, the record demonstrates that, instead of terminating 

Plaintiff in 2007, Defendant Rowan voluntarily extended Plaintiff’s 

employment to allow him to retire with full benefits, despite having 

no obligation to do so. Plaintiff has presented no evidence 

demonstrating that Defendants were required to present his desire 

to rescind his resignation to the Board of Trustees or that the 

reasons for refusing to allow the rescission took place under 

circumstances giving rise to an inference of discrimination. 

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Therefore, Plaintiff cannot establish a prima facie case of race 

discrimination. As there is no statutory violation, Farish is 

entitled to qualified immunity and summary judgment will be granted 

in favor of Farish on Plaintiff’s federal claim. 

5. Plaintiff’s Due Process and Equal Protection Claims

Plaintiff’s SA Complaint appears to attempt to improperly 

bootstrap time-barred claims for alleged violations of the 

Fourteenth Amendment under § 1983 to his timely § 1981 claim (properly 

asserted pursuant to § 1983). For reasons already stated in this 

Court’s prior Opinion, however, only Plaintiff’s § 1981 claim, again, 

asserted pursuant to § 1983, is viable as his separate § 1983 counts 

were barred under the applicable two year statute of limitations.

See Docket No. 23. A § 1981 claim for race discrimination cannot 

be conflated with separate and distinct claims brought pursuant to 

§ 1983 for an alleged due process violation that is time barred. See

Guan v. NYC Dep’t of Education, No. 11-4299, 2014 U.S. Dist. LEXIS 

44783, *85 (S.D.N.Y. Mar. 24, 2014)(“Plaintiffs provide no reason 

to think that § 1981 bears on their due process or Fourth Amendment 

claims.”); Mack v. Ala. Dep't of Human Res., 201 F. Supp. 2d 1196, 

1206 n.5 (M.D. Al. 2002)(stating, “[t]o put it bluntly, there is no 

such thing as a Section 1981 claim under the [First Amendment or Due 

Process Clause].”). While there is also no separate viable § 1983 

claim here for an Equal Protection violation, the Court notes again,

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however, that Section 1981 has been deemed to be “essentially 

coterminous with the Equal Protection Clause, in that ‘purposeful 

discrimination that violates the Equal Protection Clause of the 

Fourteenth Amendment will also violate § 1981.’” Guan N. v. N.Y. 

City Dep't of Educ., 2014 U.S. Dist. LEXIS 44783, *86 (S.D.N.Y. Mar. 

24, 2014)(citing Gratz v. Bollinger, 539 U.S. 244, 276 n.23 (2003)). 

In sum, the only permissible federal claim in this matter is 

Plaintiff’s § 1981 claim for race discrimination asserted pursuant 

to § 1983, which “overlaps” with the protections offered by the Equal 

Protection Clause. For the reasons already set forth above, this 

Court finds that Defendant Farish is entitled to summary judgment 

on this claim. 

Finally, if this Court were to find that Plaintiff can assert 

a Due Process claim pursuant to § 1981 (again, via the vehicle of 

§ 1983), it finds that Plaintiff has failed to present sufficient 

evidence to create a genuine dispute of material fact as to whether 

he was denied either substantive or procedural due process (it is 

unclear from both his complaint and the motion papers which is being 

alleged) because of his race. As set forth in detail above, 

Plaintiff has presented no evidence whatsoever to support his 

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argument that he was prevented from rescinding his resignation 

because of his race.11 

B. Count II: New Jersey Law Against Discrimination

In Count II of the SA Complaint, Plaintiff alleges that he was 

retaliated against for testifying in the DeSanto trial in 2002 in 

violation of the New Jersey Law Against Discrimination (“LAD”), N.J. 

Stat. Ann Sec. 10:6-2. In order to prove a prima facie case of 

retaliation under the LAD, plaintiff must show that: (1) he engaged 

in a protected activity known to the defendant; (2) he was thereafter 

subject to an adverse employment decision by the defendant; and (3) 

there was a causal link between the two. Sanchez v. SunGard 

Availability Servs. LP, 362 F. App'x 283, 287 (3d Cir. 2010). Once 

plaintiff meets all three prongs of a prima facie retaliation case, 

the burden-shifting analysis of McDonnell Douglas Corp. v. Green, 

411 U.S. 792, 802 (1973) applies. Kolb v. Burns, 320 N.J. Super.

467, 479 (App. Div. 1999). Under McDonnell-Douglas, once a 

plaintiff proves a prima facie case, “defendant has the burden of 

presenting evidence that articulates some legitimate, 

non-discriminatory reason for the employee’s discharge. Upon such 

presentation, the presumption disappears and the plaintiff has the 

11 In addition, the Third Circuit has made clear that even tenured 

public employment is not a fundamental property interest entitled 

to substantive due process protection. Nichols v. Pennsylvania State 

Univ., 227 F.3d 133 (3d Cir. 2000). 

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burden of proof to establish genuine issues of material fact 

regarding whether employer’s proffered explanation is pretextual, 

or that retaliatory discrimination was the more likely reason for 

the discharge.” Kolb, 320 N.J. Super. at 478-79. The burden on the 

employer is “relatively light,” Fuentes v. Perskie, 32 F.3d 759, 763 

(3d Cir. 1994), and does not oblige the employer to persuade a court 

that it was actually motivated by the proffered reasons. Slahoda 

v. United Parcel Service, 207 N.J. Super. 145, 153 (App. Div. 1986).

Once the employer meets the burden of production, the burden 

of proof then shifts back to the plaintiff who then must prove that 

the alleged reasons articulated by the defendants were not the true 

reasons behind the action, but merely pretext for discrimination. 

McDonnell Douglas, 411 U.S. at 804. “To prove pretext, ‘a plaintiff 

may not simply show that the employer’s reason was false by must also 

demonstrate that the employer was motivated by discriminatory 

intent.’” Maddox, 2014 U.S. Dist. LEXIS 138518, at *44 (quoting Zive 

v. Stanley Roberts Inc., 182 N.J. 436 (2005)). “The plaintiff retains 

the ultimate burden of proving that the retaliatory motive played 

a determinative role in the adverse decision.” Donofry v. Autotote 

Systems, Inc., 350 N.J. Super. 276, 292 (App. Div. 2001).

As to the first prong, Plaintiff alleges that he engaged in 

protected activity when he testified truthfully in the DeSanto trial 

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in 2002.12 Defendants do not dispute this element for purposes of 

the within motion. In order to satisfy the second prong of the LAD 

claim, Plaintiff must show a materially adverse employment action. 

Under Plaintiff’s theory of the case, he suffered “adverse events” 

from 2002 to 2008 in retaliation for his testimony. Without saying 

so, he attempts to thread together various events, i.e., denial of 

pay raises, his temporary assignment, and the failure to rescind his 

retirement as one continuing violation. He appears to do so in an 

attempt to salvage otherwise time-barred claims. The Supreme Court 

has declared, however, that the continuing violation doctrine has 

no applicability to "[d]iscrete acts such as termination, failure 

to promote, denial of transfer, or refusal to hire" because "[e]ach 

incident of discrimination and each retaliatory adverse employment 

12 The court notes that Plaintiff’s state law claims may be barred 

entirely by the applicable two-year statutes of limitation 

applicable to both his NJCRA and LAD claims. Brown v. City of Newark, 

No. 09-3752, 2010 U.S. Dist. LEXIS 40564, 2010 WL 1704748, at *4 

(D.N.J. Apr. 26, 2010)([a]lthough the NJCRA contains no express 

statute of limitations, . . . the language of New Jersey’s 

generally-applicable personal injury statute of limitations [] 

combined with the NJCRA’s similar purpose and design to § 1983, . 

. . convinces this Court that New Jersey’s two-year limitation 

applies to the NJCRA.”) (citation omitted); Jackson v. Chubb Corp., 

45 F. App’x 163, 165 (3d Cir. 2002)(two-year statute of limitations 

applied to LAD claims). The parties have not briefed the issue for 

this Court on summary judgment. Because this Court grants summary 

judgment in favor of Defendants, finding that there is no evidence 

of discrimination, even assuming that Plaintiff is proceeding under 

a continuing violation theory. Therefore, the Court need not 

resolve the statute of limitations issue.

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action constitutes a separate actionable 'unlawful employment 

practice.'" AMTRAK v. Morgan, 536 U.S. 101, 114, 122 S. Ct. 2061, 

153 L. Ed. 2d 106 (2002).13 Even assuming a continuing violation 

theory, the record does not support the requisite causal connection 

between the protected activity and any adverse action complained of 

by Plaintiff, as required under the third prong. True, a close 

temporal connection between the protected activity and the adverse 

action may be sufficient to establish this prong. Watkins v. Nabisco 

Biscuit Co., 224 F. Supp. 2d 852, 872-73 (D.N.J. 2002). However, 

a gap of as little as three months between the protected activity 

and the adverse action has been found to be, without more, 

insufficient. Hussein v. UPMC Mercy Hosp., 466 F. App'x 108, 112 

n.4 (3d Cir. 2012). 

Where, as is the case here, the temporal proximity is not 

suggestive of retaliation, courts generally examine the record to 

determine whether "the proffered evidence, looked at as a whole, may 

suffice to raise the inference [of causation]." LeBoon v. Lancaster 

Jewish Cmty. Ctr. Ass'n, 503 F.3d 217, 232 (3d Cir. 2007). For 

example, a plaintiff can establish causation by alleging 

antagonistic conduct or animus by the employer during the intervening 

period between the protected activity and the adverse employment 

13 While this is a Title VII case, New Jersey generally follows Title 

VII federal precedent in interpreting the LAD. McKenna v. Pacific 

Rail Serv., 32 F.3d 820, 838 (3d Cir. 1994). 

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activity, and inconsistent reasons proffered by the employer for the 

plaintiff's discharge. See Marra v. Philadelphia Hous. Auth., 497 

F.3d 286, 302 (3d Cir. 2007) ("Where the time between the protected 

activity and adverse action is not so close as to be unusually 

suggestive of a causal connection standing alone, courts may look 

to the intervening period for demonstrative proof [of causation], 

such as actual antagonistic conduct or animus against the employee").

Plaintiff attempts to build his case with respect to each 

adverse event – such as a negative evaluation or lack of a pay raise 

– by attributing it to Defendants’ retaliation for his 2002 

testimony. According to Plaintiff, this retaliation began after his 

testimony in 2002 and ended in December 2008 when he was unable to 

rescind his resignation. Plaintiff admits that while “most of the 

retaliation occurred more than six years after [he] testified, 

Zazzalli’s telling Hale three or four years after the testimony that 

he caused the DeSanto loss was soon followed by an orgy of adverse 

statements about [his] performance from Hale, Gover, and Tiemann.” 

Pl.’s Brief, at 14. (emphasis added). He argues that a jury could 

reasonably infer that these untrue statements were solicited not as 

fair evaluations but to paint a picture justifying his removal from 

the EEO/AA position. Id. 

The record simply does not support Plaintiff’s claims. 

Plaintiff attempts to build his case based on inferences upon 

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inferences and assumptions. See Johnson v. Multi-Solutions, Inc., 

493 Fed. Appx. 289, 292 (3d Cir. June 28, 2012)(“An inference based 

upon speculation or conjecture does not create a material factual 

dispute sufficient to defeat entry of summary judgment”); Phillis 

v. Harrisburg School Dist., No. 07-1728, 2010 U.S. Dist. LEXIS 31413, 

at *53 (M.D. Pa. Mar. 31, 2010)(finding that attenuated inferences 

were insufficient to defeat summary judgment), aff’d, 2011 U.S. App. 

LEXIS 11821 (3d Cir. June 10, 2011). Under Plaintiff’s theory of 

the case, anyone who gave Plaintiff a negative evaluation with 

knowledge (through hearsay, lore, or otherwise)14 of the DeSanto

trial and Plaintiff’s supposed contribution to the loss, acted out 

of retaliation. Plaintiff must do more than rest on this theory, 

and he has failed to meet his burden.

Even looking at each separate adverse event of which Plaintiff 

complains – and again assuming a continuing theory violation to avoid 

the glaring statute of limitations issue – there is no sufficient 

evidence to support the causal connection. For example, shortly 

after the trial, Farish – who had previously given Plaintiff negative 

reviews – permitted Plaintiff to stay as the EEO/AA Director despite 

his misgivings. As he stated in his December 12, 2002 letter, “[i]f 

this were a private company, there is no question in my mind that 

14 Many of the individuals Plaintiff alleges were antagonistic 

towards him were not present at Rowan during the DeSanto trial.

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you would have been terminated by this point. I resist such an action 

based on my belief that your intentions are noble, however flawed 

may be your methods.” DSOF at ¶ 52. Plaintiff was permitted to 

continue to work as the Director for 4 1/2 years. During this time, 

he was given pay increases in 2005 (1%) and 2006 (3%) despite negative 

evaluations. Moreover, when Defendants terminated Plaintiff as the 

EEO/AA Director, Plaintiff asked to stay on for another eighteen 

months so that he could receive lifetime health and pension benefits. 

Defendants permitted him to do so and extended him a temporary 

position. Defendant Farish offered Plaintiff this temporary 

position even though Dr. Tyrone McCombs did not wish to extend the 

position to Plaintiff.15 And even though that new position did not 

carry a salary of the size Plaintiff was making, $83,936.78, 

Plaintiff was permitted to receive his same salary and benefits. 

Plaintiffs’ contention that “[nobody] in the Rowan hierarchy is 

authorized to make a ‘temporary terminal assignment’ of an employee,” 

DSOF ¶ 75, even if true, ignores the reason for the assignment: to 

provide Plaintiff with lifetime benefits which he would otherwise 

not receive. This is hardly retaliatory conduct on the part of 

Defendants. 

15 Plaintiff objects to this evidence as hearsay testimony. Of

course, McCombs testimony would be permissible.

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As for Plaintiff’s termination in 2007 as the EEO/AA Director 

and transfer to a less prestigious positon, Defendants argue that 

Gover had no knowledge of Plaintiff’s testimony and that Hale and 

Tiemann were not at the University in 2002 and, therefore, did not 

have knowledge of his testimony, but rather had lost confidence in 

Plaintiff’s abilities. Plaintiff responds that a jury should be 

permitted to infer that these individuals as well as Gover acted out 

of retaliation because of his 2002 testimony. Yet, the record 

supports no such conclusion, let alone an inference.

Plaintiff’s further allegation that he was retaliated against 

when he was not permitted to rescind his resignation similarly has 

no support in the record. As discussed supra, those individuals who 

were permitted to change their retirement dates were those who were 

tenured or participants of the Faculty Transitional Retirement 

Program, neither of which Plaintiff was. Plaintiff’s argument that 

the decision to permit his retirement rescission was in retaliation 

for his testimony six years earlier - - by individuals who were 

directly involved with the DeSanto trial - - is just that, argument.

Moreover, even if Plaintiff has met his burden of showing a prima 

facie retaliation case - - which he has not - - Defendants have shown 

legitimate business reasons, as discussed at length supra, and 

Plaintiff has failed to show that such reasons were pretextual, other 

than circling back to his theory that everything each supervisor did 

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at Rowan after his testimony was done out of retaliation and an effort 

to eventually justify his removal five years later as the EEO/AA 

Director, and six years later as a Rowan employee. “‘[T]o prove 

pretext . . . a plaintiff must do more than simply show that the 

employer’s [proffered legitimate, non-discriminatory] reason was 

false; he or she must also demonstrate that the employer was motivated 

by discriminatory intent.’” El-Sioufi v. St. Peters University 

Hosp., 382 N.J. Super. 145, 173 (2005)(quoting Viscik v. Fowler 

Equip. Co., 173 N.J. 1, 14 (2002)). “The plaintiff must submit 

evidence that either casts sufficient doubt upon the employer’s 

proffered legitimate reason so that a fact finder could reasonably 

conclude it was fabricated, or that allows the fact finder to infer 

that discrimination was more likely than not the motivating or 

determinative cause of the termination decision.” Id. (quoting

Svarnas v. AT&T Commc’ns, 326 N.J. Super. 59, 82 (App. Div. 1999)). 

Bald assertions and vague theories cannot survive summary 

judgment. Brill v. Guardian Life Ins. Co. of Am., 142 N.J. 520, 541 

(1995) (citation omitted). In short, Plaintiff can provide no proof 

that Rowan’s legitimate business reasons for its decisions were 

pretextual. Other than his subjective view of how Rowan should have 

treated him, Plaintiff has not pointed to any evidence that would 

either cast sufficient doubt on Rowan’s legitimate business reasons 

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or permit a factfinder to infer by a preponderance of the evidence

that discrimination was more likely than not a motivating factor.

Defendants have introduced evidence that well before the 

DeSanto trial Plaintiff had received a series of negative 

evaluations. See supra at 4-9. Plaintiff continued to perform 

negatively even after the trial. Plaintiff does not argue that the 

negative evaluations changed in intensity or scope after the trial; 

rather he contends that no negative evaluation was ever warranted. 

Despite his unsatisfactory performance evaluations, Plaintiff did 

receive pay increases after the trial and, importantly, rather than 

being terminated in 2007, Defendants permitted Plaintiff to stay an 

additional eighteen months so that he could receive lifetime 

benefits. There is nothing before this Court besides innuendo to 

suggest that Defendants’ reasons for any of the adverse events of 

which Plaintiff complains was pretextual in any way. Accordingly, 

Defendants’ motion for summary judgment as to his LAD claim is 

granted. 

C. Count II (New Jersey Civil Rights Claim)

In Count II, Plaintiff also alleges a violation of the NJCRA

in retaliation for his testimony in the DeSanto trial. Under the 

New Jersey Civil Rights Act, N.J.S.A. 10:6-2(c):

Any person who has been deprived of any substantive due process 

or equal protection rights, privileges or immunities secured 

by the Constitution or laws of the United States, or any 

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substantive rights, privileges or immunities secured by the 

Constitution or laws of this State, or whose exercise or 

enjoyment of those substantive rights, privileges or immunities 

has been interfered with or attempted to be interfered with, 

by threats, intimidation or coercion by a person acting under 

color of law, may bring a civil action for damages and for 

injunctive or other appropriate relief. 

The New Jersey Civil Rights Act is modeled after 42 U.S.C. § 1983. 

See Szemple v. Corr. Med. Servs., 493 Fed. Appx. 238, 241 (3d Cir. 

2012)(“The NJCRA is interpreted as analogous to §1983.”). Because 

Defendants Rowan and Farish in his official capacity are not 

“persons” amenable to suit under the NJCRA, these claims are 

dismissed. See Didiano v. Balicki, 488 Fed. Appx. 634, 639 (3d 

Cir.)(affirming summary judgment where NJCRA claims dismissed 

against the state and an individual in his official capacity). 

Finally, even entertaining this claim on the merits, for the same 

reasons discussed above, Plaintiff’s claim has no support in the 

record. Cottrell v. Wheels, 2011 U.S. Dist. LEXIS 26646, at *22-23 

(D.N.J. Mar. 15, 2011)(“because Defendants' are entitled to summary 

judgment regarding Plaintiff's retaliation claims, they are also 

entitled to summary judgment regarding Plaintiff's NJCRA claim.”), 

aff’d, 2012 U.S. App. LEXIS 1319 (3d Cir. N.J., Jan. 23, 2012).

Therefore, summary judgment is granted as to this claim.

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V. Cross-Motion

Plaintiff has cross-moved to bar the consideration of testimony 

by either Marie Tiemann or Robert Zazzali in the motion for summary 

judgment and requests an award of attorney’s fees based on alleged

misconduct in the discovery process. 

With respect to the testimony for Marie Tiemann, Plaintiff is 

essentially appealing Judge Donio’s well-reasoned opinion that “the 

Court is without authority to compel Ms. Tiemann, a non-party, to 

appear for a deposition in New Jersey.” Docket No. 59, at 8. Under 

New Jersey Local Rule 72.1, “a party may appeal from a Magistrate 

Judge’s determination of a non-dispositive matter within 14 days 

after the party has been served with a copy of the Magistrate’s 

Judge’s order. . . .” Judge Donio’s order was entered on October 

9, 2013 and the instant cross-motion was not filed until March 29, 

2014. 

In addition, while Judge Donio ordered the Defendants to provide 

Ms. Tiemann’s telephone contact information to Plaintiff, the Court 

noted that she remained outside of the Court’s subpoena power. This 

remains the case. Moreover, Judge Donio addressed Plaintiff’s now 

repeated argument that Tiemann’s inclusion in the litigation control 

group is somehow dispositive: “The Court further rejects Plaintiff’s 

assertion that Defendants’ inclusion of Ms. Tiemann, a former 

employee, within the litigation control group obligates Defendants 

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to produce Ms. Tiemann, notwithstanding the fact that she resides 

beyond the Court’ subpoena power.” Docket No. 59 at 8. Again, 

Plaintiff is essentially seeking an untimely appeal of Judge Donio’s 

decision and presents no case law compelling this Court to reach a 

different decision than Judge Donio. 

In addition, while Judge Donio noted that Plaintiff’s prior 

motion was “denied without prejudice to the extent [that motion] 

seeks ‘to bar[] Tiemann from testifying at trial,’” the instant 

motion is not in anticipation of trial. As all counts of the SA 

Complaint have been dismissed, there will be no trial. Finally, 

there are no new facts or case law that bring Tiemann within the 

subpoena power of this Court. Thus, for the reasons already set 

forth by Judge Donio, this Court will deny Plaintiff’s motion with 

respect to Tiemann. 

Plaintiff also asks this Court to bar consideration of Robert 

Zazzalli’s testimony stating that, during his second deposition as 

ordered by Judge Donio, Zazzali “repeatedly insisted that he had 

absolutely no recollection of the [DeSanto post-mortem meeting].” 

Docket No. 64-7. Plaintiff states that this is in striking contrast 

to Zazzalli’s earlier deposition wherein “Zazzalli’s recollection 

of events was substantially intact and thorough.” Id. at 5. 

Notably, Plaintiff provides this Court with no deposition excerpts 

in support of his point. Other than mere speculation, Plaintiff has 

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provided this Court with no evidence to support his contention that 

Zazzali testified falsely under oath or that Defendants have 

otherwise “pollut[ed] the waters of justice.” Certainly, a failing 

memory of a meeting that occurred 12 years prior can hardly be said 

to constitute clear evidence of false testimony. See United States 

v. Dunnigan, 507 U.S. 87, 94 (1993)(“A witness testifying under oath 

or affirmation violates this statute if she gives false testimony 

concerning a material matter with the willful intent to provide false 

testimony, rather than as a result of confusion, mistake, or faulty 

memory.”). 

Because there is no evidence of discovery misconduct, this Court 

will deny Plaintiff’s cross-motion including his request for 

attorney’s fees. 

VI. Conclusion 

For all these reasons, Defendants' motion for summary judgment 

is granted as to all counts. In addition, Plaintiff’s cross-motion 

is denied. An appropriate Order will issue this date. 

s/Renée Marie Bumb 

RENÉE MARIE BUMB

United States District Judge

Dated: December 11, 2014

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