NOT FOR PUBLICATION 

UNITED STATES DISTRICT COURT 

DISTRICT OF NEW JERSEY 

VIOLETTE WHITNEY JOSEPH, 

Plaintiff, 

v. 

THE STATE OF NEW JERSEY CIVIL 

SERVICE COMMISSION, et al., 

Defendants. 

SHIPP, District Judge 

Civil Action No. 10-3956 (MAS) (LHG) 

MEMORANDUM OPINION 

Plaintiff Violette Whitney Joseph, an African-American female, alleges that she suffered 

unlawful discrimination and other wrongs at the hands of her current employer, the State ofNew 

Jersey Civil Service Commission ("CSC"), and its predecessor agency, the State ofNew Jersey 

Department of Personnel ("DOP"). In this action, she pursues claims against the CSC and several 

former DOP officials (collectively, "Defendants"), alleging various forms of employment 

discrimination, breach of contract, and intentional infliction of emotional distress. 

Now before the Court is Defendants' motion for summary judgment on all of Plaintiffs 

claims. (Defs.' Mot., ECF No. 51.) Plaintiff filed opposition to the motion (Pl.'s Opp'n, ECF No. 

52), and Defendants replied (Defs.' Reply, ECF No. 56.) The Court has carefully considered the 

parties' submissions and decided the matter without oral argument pursuant to Local Civil Rule 

78.1. For the reasons stated below, and for other good cause shown, Defendants' motion is 

granted. 
I. Background 

A. Summary of Plaintiff's Claims 

The Court begins with an overview of Plaintiffs allegations. Unless otherwise noted, the 

following narrative is drawn from the Complaint. 

Plaintiff accepted a temporary position at the DOP in March 2004 with the understanding 

that she would be appointed to a permanent civil service position at the conclusion of a sixmonth probationary period. (Com pl. ~~ 1, 9, 44.) The permanent appointment never materialized. 

Instead, Plaintiff claims that Defendants appointed her to a series of temporary or provisional 

positions to prevent her from obtaining a permanent civil service title. (Id. at~~ 12, 16, 18, 31.) 

At the same time, Plaintiff was shouldering new responsibilities as a result of staff reductions 

stemming from a multi-year "restructuring" of the DOP that began in late 2005. (Id. at,[,] 18, 

25.) Despite repeated requests from Plaintiff and her immediate supervisor, the DOP's 

management failed to appoint Plaintiff to a permanent position with a civil service classification 

that was commensurate with her duties and responsibilities. (!d. at~~ 13, 16, 20, 23, 24, 31, 33.) 

The imbalance persisted after Plaintiffs unit became part of the Department of Treasury in 

2009. 1 (Id. at~ 33.) 

Plaintiff claims that two Caucasian males whom the DOP hired within a few months of 

her received permanent appointments. (!d. at ~ 19.) William Linhart, originally hired into the 

DOP, received a permanent position as a Planning Associate in another state agency. (!d.) Frank 

Girard, who began working at the DOP six months before Plaintiff, received a permanent 

appointment as a Supervising Education Development Specialist in Plaintiffs unit. (Id.) 

According to Defendants, the New Jersey legislature dissolved the DOP in early 2009, 

dividing its functions between the CSC and the Department of Treasury. (Defs.' Reply 7). In the 

Complaint, Plaintiff identifies the CSC as the DOP's "successor agency" (Compl. ,[ 2) but also 

makes repeated references to the Treasury (id. at ~~ 33, 34). As a result, it is not clear which 

agency Plaintiff worked for following the dissolution of the DOP. 

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Plaintiff alleges that she has acted as project manager for the "statewide implementation 

of a Learning Management System" since August 2007. (!d. at 25.) In this role, she has 

supervised two Caucasian employees, Dave Smith and Holly Fisher, whose salaries were 

"significantly" higher than her own. (!d. at ~~ 27, 37.) Plaintiff also alleges that Smith was 

assigned to an office that was larger than her own, and that Smith and Foster both received better 

office equipment and IT support than Plaintiff. (!d. at~~ 34, 41.) 

The charging section of Plaintiffs Complaint contains twelve claims. Counts One, Two, 

and Eleven are based on New Jersey state law theories of implied contract and intentional 

infliction of emotional distress. In Counts Three through Ten, Plaintiff accuses Defendants of 

race, color and gender discrimination under namely the Federal Equal Pay Act of 1963 ("EPA"), 

29 U.S.C. § 206(d); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.; and the 

New Jersey Law Against Discrimination ("NJLAD"), N.J. Stat. Ann. § 59:8-3 et seq. Count 

Twelve apparently seeks to enjoin the Defendants from further acts of retaliation against 

Plaintiff. 

B. Material Facts 

In accordance with Local Civil Rule 56.1(a), Defendants submitted a Statement of 

Undisputed Material Facts ("SUMF") with their motion for summary judgment. (SUMF, ECF 

No. 51-4.) Plaintiff failed to submit a responsive statement. Accordingly, the Court treats each 

properly-supported fact in Defendants' submission as undisputed unless Plaintiff cites contrary 

evidence in her opposition brief. See Longoria v. New Jersey, 168 F. Supp. 2d 308, 312 & n.1 

(D.N.J. 2001). The facts in this case are as follows. 

In March 2004, Plaintiff accepted a temporary appointment to a position in the Human 

Resource Development Institute ("HRDI"), a division of the DOP tasked with training 

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government employees. (SUMF ~~ 2-3, 6.) Plaintiffs position carried the title "Supervising 

Program Development Specialist" and an annual salary of $59,431.85. (Id. at ~ 4.) In June, 

William Linhart joined HRDI as an "Education Program Specialist" with a starting salary of 

$69,861.16. (Id. at~ 23; Defs.' Mot., Exh. L.) After approximately six months, Linhart left the 

DOP for another agency, where he became Planning Associate. (SUMF ~ 25.) Plaintiff remained 

at HRDI, where her salary increased steadily, rising to $61,155.37 in June 2004, $63,919.39 in 

March 2005, and $65,198.33 in June 2005. (!d. at~ 11; Pl.'s Opp'n, Exh. 20.) 

In 2005, budget cuts forced HRDI to downsize and restructure its workforce. (SUMF 

~~ 7-8.) As part ofthis process, Plaintiff was appointed to the title of "Contract Administrator 2" 

in August 2005. (!d. at~~ 9, 15.) The appointment was "pending open-competitive examination," 

which meant that Plaintiff would not be eligible for permanent status until she took a publically 

announced civil-service examination. (!d. at~ 10; Exh. G). To prevent a reduction in Plaintiffs 

income-she was then earning $18,000 more than the Contract Administrator 2 pay range 

allowed-HRD I "red circled" Plaintiffs salary. (SUMF ~~ 12-13.) As a result, Plaintiffs salary 

remained fixed at $65,198.33 until December 2006, when it increased to $65,409.96. (Pl.'s 

Opp'n, Exh. 20.) 

In February 2007, Plaintiff submitted a written complaint to DOP Commissioner Rolando 

Torres, Jr. (SUMF ~ 16; Pl.'s Opp'n, Exh. 7.) In it, Plaintiff asserted that the DOP's failure to 

appoint her and her colleague, Wanda McNeill, to permanent positions violated the terms of 

"oral agreement[s]" made at the time both women were hired. (!d.) The complaint made no 

reference to race, color or gender. (See id.) 

Plaintiffs employment status changed again in July 2007, when HRDI moved her to the 

unclassified title of "Government Representative 3" and increased her salary to $67,372.19. 

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(Pl.'s Opp'n, Exh. 20.) At around the same time, Plaintiff became project manager for the 

"Learning Management System" or "LMS." (SUMF ~ 18.) In this role, Plaintiff supervised Dave 

Smith, a Supervising Training Technician who had worked for the DOP since 1986, and Holly 

Foster, an Administrative Analyst who joined HRDI in 1993. (!d. at~~ 19-21; 34-36). In June 

2008 and June 2009, Plaintiff applied for and received two "salary adjustment[s]" of $3,935.50 

and $2,30 1.20, respectively. (!d. at ~~ 31-32; Pl.'s Opp 'n, Exh. 24.) These payments reflected the 

additional responsibilities Plaintiff had acquired with regard to the LMS project. (SUMF ,I 31.) 

Plaintiffs title and salary remained unchanged when she and her remaining HRDI 

colleagues were reassigned to the New Jersey Department of Treasury in early 2009. (!d. at 

~ 38.) 

II. Legal Standard 

Summary judgment is appropriate if the record 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); see Anderson v. Liberty Lobby, 477 U.S. 242, 248-49 (1986). In evaluating the evidence, 

the Court is "required to view the inferences to be drawn from the underlying facts in the light 

most favorable to the party opposing the motion." Curley v. Klem, 298 F.3d 271, 276-77 (3d Cir. 

2002) (internal quotations omitted). However, where the party opposing summary judgment 

ultimately bears the burden of proof as to a dispositive issue, that party "bears the burden of 

production under Rule 56 to 'designate specific facts showing that there is a genuine issue for 

trial."' Ricci v. DeStefano, 557 U.S. 557, 586 (2009) (quoting Celotex Corp. v. Catrett, 477 U.S. 

317, 324 (1986)). 

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III. Analysis 

A. Federal Equal Pay Act Claim 

A burden-shifting analysis applies to claims under the Federal Equal Pay Act ("EPA"). 

Stanziale v. Jargowsky, 200 F.3d 101, 107 (3d Cir. 2000). First, the claimant must demonstrate 

that employees of the opposite sex were paid differently to perform '"equal work'-work of 

substantially equal skill, effort and responsibility, under similar working conditions." Id. 

(quoting E.E.O.C. v. Delaware Dept. of Health and Soc. Svcs., 865 F.2d 1408, 1413-14 (3d Cir. 

1989)). Once claimant has made this prima facie showing, the employer must establish a genderneutral basis for the disparity in its workers' salaries. Stanziale, 200 F.3d at 107 & n.6; see 

§ 206(d)(l) (providing that an employer may escape liability if the disparity in its employees' 

wages is based on seniority, merit or "any other factor other than sex"). 

In this case, it is undisputed that Plaintiff earned less than at least two male HRDI 

employees. (Defs.' Br. 28-29.) To shift the burden to Defendants, then, Plaintiff need only 

present evidence that the tasks Plaintiff performed were substantially equal to those assigned her 

better-compensated male coworkers. See Heller v. Elizabeth Forward Sch. Dist., 182 F. App'x 

91, 94 (3d Cir. 2006); Dubowsky v. Stern, Lavinthal, Norgaard & Daly, 922 F. Supp. 985, 990 

(D.N.J. 1996) ("The main determining factor in the substantial equality of the jobs is whether the 

jobs involve a common core of tasks.") (internal quotation marks omitted). Here, Plaintiff falls 

short of her burden. 

Although Plaintiff makes general assertions about her job function-claiming, for 

instance, that her duties were "consistent" with those associated with more desirable job titles 

(Pl.'s Opp'n 16)-she fails to provide a factual basis for a comparison of her duties to those of 

her male colleagues. In short, the record before the Court furnishes only the vaguest impression 

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of the work Plaintiff actually performed. See Brobtst v. Columbus Svcs. Int., 761 F.2d 148, 155 

(3d Cir. 1985) (stating that "relevant issue" under the EPA "is not the name under which [a] 

position was classified but what [work] was actually done"). In the absence of this information, 

no rational factfinder could conclude that Defendants violated the EPA. Accordingly, Defendants 

are entitled to summary judgment on Count Seven of the Complaint. 

B. Status-Based Discrimination & Retaliation Claims 

The Court now turns to Plaintiffs allegations of status-based discrimination and 

retaliation under Title VII and NJLAD. The same analysis applies to the federal and state law 

claims. See Schurr v. Resorts Int'l Hotel, Inc., 196 F.3d 486, 498 (3d Cir. 1999) ("Analysis of a 

claim made pursuant to the NJLAD generally follows analysis of a Title VII claim."). The Court 

will therefore divide the claims into two groups. The first consists of Plaintiffs charges of race, 

color and gender discrimination, that is, Counts Three, Four, Five, Eight and Nine of the 

Complaint. The Court will then examine Plaintiffs retaliation claims in Counts Six and Ten. 

It is undisputed that the three-stage analysis illustrated in McDonnell Douglas Corp. v. 

Green, 411 U.S. 792 (1973), applies to all of these claims. See Moore v. City of Phila., 461 F.3d 

331, 342 (3d Cir. 2006) (applying McDonnell Douglas framework to Title VII retaliation claim); 

Stanziale, 200 F.3d at 105 (applying McDonnell Douglas framework to Title VII status-based 

discrimination claim). At the first stage, claimant bears the burden of establishing a prima facie 

claim of employment discrimination. See McDonnell Douglas, 411 U.S. at 802-03. At the second 

stage, employer must produce evidence that, if believed, would establish a legitimate, 

nondiscriminatory explanation for its treatment of claimant. See id. at 804-05. If employer meets 

this burden, claimant must then submit evidence sufficient to convince a reasonable factfinder 

that employer's explanation is a pretext for intentional discrimination or retaliation. See id. 

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1. Discrimination Claims 

The Court's analysis of Plaintiffs status-based discrimination claims begins and ends 

with the first step of the McDonnell Douglas analysis. A prima facie claim of employment 

discrimination consists of evidence from which a rational jury could conclude (1) the claimant is 

a member of a protected class; (2) he or she was qualified for the position sought; (3) he or she 

suffered an adverse employment action; and (4) the action occurred "under circumstances that 

could give rise to an inference of intentional discrimination." Makky v. Chertoff, 541 F.3d 205, 

214 (3d Cir. 2008). 

Defendants contend that Plaintiff cannot establish an adverse employment action because 

she continues to be employed and has received periodic increases in both her salary and job 

responsibilities. (Defs.' Br. 17 -21.) Plaintiff does not dispute these facts. (Pl.'s Opp 'n 9, 16.) 

However, she claims Defendants "demoted" her three times during the first four years of her 

employment at the DOP-in April 2004, August 2005, and March 2008-and that these 

demotions supply the adversity element of her prima facie claim. (Pl.'s Opp'n 8-9.) 

At the outset, the Court notes that there is no question that "employment decisions such 

as transfers and demotions may suffice to establish the third element of a plaintiffs prima facie 

case." Jones v. Sch. Dist. of Phila., 198 F.3d 403, 411-12 (3d Cir. 1999). It is, however, equally 

clear that the prima facie analysis imposes "an evidentiary standard, not a pleading requirement." 

Swierkiewicz v. Sorema NA, 534 U.S. 506, 510 (2002). In other words, Plaintiff must do more 

than assert that Defendants demoted her; she must also present evidence to substantiate this 

claim. This she fails to do. 

Plaintiffs claim that she was demoted in April 2004 is wholly unsubstantiated. She 

asserts, with no citation to the record, that Defendants "reduced [her] from a grade 30 position to 

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a grade 29 position" in April 2004. (Pl.'s Opp'n 9.) Plaintiffs failure to identify evidence 

supporting this claim indicates that no such evidence exists. DeShields v. Int 'l Resort Props. Ltd., 

463 F. App'x 117, 120 (3d Cir. 2012) ("If factual support for [a] claim exist[s] in the record, it 

[is] incumbent upon [party opposing summary judgment] to direct the District Court's attention 

to those facts."). Moreover, even if Plaintiff produced this evidence, the Court would have no 

basis to conclude that a "grade" reduction constitutes "action ... [that is] 'serious and tangible 

enough to alter a [Plaintiffs] compensation, terms, conditions, or privileges of employment."' 

Storey v. Burns Int'l Sec. Servs., 390 F.3d 760, 764 (3d Cir. 2004) (quoting Cardenas v. Massey, 

269 F.3d 251, 263 (3d Cir. 2001)). 

The remaining two instances in which Plaintiff claims to have been "demoted" occurred 

in August 2005, when Defendants changed her title to "Contract Administrator 2," and in March 

2008, when she received the "Government Representative 3" title. While it is undisputed that 

Plaintiffs title changed, there is no evidence that these changes had any adverse impact on the 

"terms, conditions, or privileges of [Plaintiffs] employment." !d. In fact, the evidence is to the 

contrary-Plaintiff acknowledges that her salary and responsibilities have only increased since 

she began working at the DOP in 2004. Under these circumstances, no rational factfinder could 

conclude that Defendants subjected Plaintiff to an adverse employment action. As a result, 

Plaintiff has not established a prima facie case of employment discrimination. 

Plaintiffs failure to satisfy her initial burden obviates the last two steps of the McDonnell 

Douglas analysis. The Court observes, however, that Plaintiff also fails to rebut the nondiscriminatory motivation proffered in Defendants' papers. (Defs.' Br. 23-25.) Defendants 

produce evidence tying the changes in Plaintiffs' title to the large reduction in HRDI's staff that 

occurred during the "restructuring" of the DOP. (!d.) Plaintiff does not deny the staff cuts, but 

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apparently suspects that at least some of her former colleagues transferred into better positions 

than the one she now occupies at the CSC. (Pl.'s Opp'n 12.) Plaintiff fails, however, to "point to 

some evidence" that could persuade a rational factfinder to share these suspicions. Fuentes v. 

Perslde, 32 F.3d 759, 764 (3d Cir. 1994). Thus, even if Plaintiffs succeeded in establishing a 

prima facie case of discrimination, her claim would fail at the third-step of the McDonnell 

Douglas analysis. 

Accordingly, Defendants are entitled to summary judgment on Counts Three, Four, Five, 

Eight and Nine ofthe Complaint. 

2. Retaliation Claims 

Plaintiff also claims that Defendants retaliated against her after she voiced concerns about 

workplace discrimination. Once again, Plaintiffs retaliation claims under NJLAD and Title VII 

are subject to the same analysis. To make out a prima facie claim, claimant must produce 

evidence from which a jury could conclude "(1) she engaged in protected activity; (2) the 

employer took an adverse employment action against her; and (3) there was a causal connection 

between her participation in the protected activity and the adverse employment action." Moore, 

461 F.3d at 340-41 (internal quotation marks omitted). The term "adverse employment action" is 

broader in the context of a retaliation claim. To satisfy her burden, Plaintiff need only show that 

Defendants did something to her that "well might have dissuaded a reasonable worker from 

making or supporting a charge of discrimination." Moore, 461 F.3d at 341 (quoting Burlington 

N & Sante Fe Ry. Co. v. White, 548 U.S. 53, 68 (2006)). 

With respect to the first element, Plaintiff alleges that she voiced the issue of 

discrimination to her superiors as early as mid-2005. (Pl.'s Opp'n 15.) Although this claim finds 

little support in the record-the earliest memoranda and e-mail messages cited in Plaintiffs 

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papers date back to February 2007 (Pl.'s Opp'n, Exhs. 7 & 22)-the Court will accept it for 

purposes of its analysis. 

Plaintiff claims the August 2005 and March 2008 changes in her job were retaliatory 

demotions aimed at discouraging her from raising the issue of discrimination. The Court rejects 

this assertion. Even in the retaliation context, the alterations in Plaintiffs job titleunaccompanied by a change in the terms and conditions ofPlaintiffs employment or a tangible 

diminution in her status within the organization-do not constitute "adverse employment 

actions." Plaintiff also alleges that Defendants' supposed "denial" ofher June 2, 2009 request for 

a salary adjustment was retaliatory. (Pl.'s Opp'n 16.) The evidence Plaintiff herself relies upon, 

however, shows that Defendants approved her June 2009 request for a salary adjustment. (See 

Pl.'s Opp'n, Exh. 24.) Thus, it appears that the outcome of Plaintiffs request was anything but 

adverse. 

In the absence of proof that Defendants subjected Plaintiff to an adverse employment 

action, Plaintiff has failed to establish a prima facie case of retaliation under either state or 

federal law. Defendants are therefore entitled to summary judgment on Counts Six and Ten of 

the Complaint. 

C. Common Law Breach of Contract and Tort Claims 

Defendants assert they are entitled to summary judgment on Plaintiffs common law 

contract and tort claims because Plaintiff failed to provide the notices required under New 

Jersey's Contractual Liability Act, N.J. Stat. Ann. § 59:13-5, and Tort Claims Act, N.J. Stat. 

Ann. § 59:8-3. (Defs.' Br. 9-10, 14-16.) Plaintiff has not opposed this portion of Defendants' 

motion. The Court has reviewed evidence proffered in support of Defendants' motion and 

concluded that summary judgment is appropriate. See Fed. R. Civ. P. 56(e)(3) (where motion is 

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unopposed, "the court may order ... summary judgment if the motion and supporting materials . 

. . show that the movant is entitled to it"); Ventura v. Montclair State Univ., No. 08-5792, 2011 

WL 550720, at *10 (D.N.J. Feb. 9, 2011) (granting summary judgment under nearly identical 

circumstances). Accordingly, Defendants' motion is granted with respect to Counts One, Two 

and Eleven of the Complaint. 

IV. Conclusion 

For the reasons set forth above, and for other good cause shown, it is hereby ordered that 

Defendants' Motion for Summary Judgment is GRANTED with respect to Counts One through 

Eleven ofthe Complaint. Count Twelve is dismissed as moot. An appropriate order follows. 

MICHAEL A. S . IP 

{ I'\ (3() /;3 Dated: v--

UNITED STATES DISTRICT JUDGE 

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