NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

WAYNE A. EVERETT, JR.,

 Plaintiff,

 v.

STATE OF NEW JERSEY (DEPARTMENT 

OF CORRECTIONS), et al.,

 Defendants.

 CIVIL ACTION NO. 10-3412 (MLC)

 MEMORANDUM OPINION

COOPER, District Judge

I. INTRODUCTION

The plaintiff, Wayne A. Everett, Jr., a former employee of 

the Special Investigations Division (“SID”) of the New Jersey 

Department of Corrections (“NJDOC”), brings the action against the 

defendants, the NJDOC (pleaded as State of New Jersey (Department 

of Corrections)), George Hayman, Thomas Moran, Melinda Haley, 

Richard McCourt, and Lydell Sherrer. (See dkt. entry no. 1, 

Compl.) Everett alleges that the defendants unlawfully retaliated 

against him for exercising his rights under the Family Medical 

Leave Act of 1993, 29 U.S.C. § 2601, et seq. (“FMLA”). (See id. at 

Count I, FMLA Claim.) He also alleges that the defendants 

unlawfully retaliated against him for unrelated whistle-blowing 

activity, in violation of the New Jersey Conscientious Employee 

Protection Act, N.J.S.A. § 34:19-1, et seq. (“CEPA”). (See id. at 

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Count II, CEPA Claim.) The Court has jurisdiction over the FMLA 

Claim pursuant to 28 U.S.C. § 1331 and over the CEPA Claim pursuant 

to 28 U.S.C. § 1367(a).

The NJDOC, Hayman, Moran, Haley, and McCourt (“the Moving 

Defendants”) now move for summary judgment in their favor and 

against Everett. (See dkt. entry no. 28, Mot.)1 They argue that 

CEPA bars assertion of the FMLA Claim. (See dkt. entry no. 28-2, 

Br. in Supp. at 6-7.) They also argue that Everett has not 

produced sufficient evidence to establish a prima facie claim for 

retaliation under either the FMLA or CEPA. (See id. at 7-26.) 

Everett opposes the Motion. (See dkt. entry no. 35, Opp’n Br.)

The Court now resolves the Motion without oral argument. See

L.Civ.R. 78.1(b). For the reasons that follow, the Court concludes 

that Everett has not established a prima facie claim of retaliation 

under the FMLA.2 The Court will thus grant the Motion insofar as 

it concerns the FMLA Claim and enter judgment on that claim against 

Everett and in the Moving Defendants’ favor.3

 The Court will also 

 1 The Magistrate Judge earlier stayed the action insofar as it 

concerns Sherrer. (See dkt. entry no. 34, 10-12-12 Letter Order.) 

2 Because the Court resolves the FMLA Claim on this ground, 

the Court does not reach the so-called CEPA preclusion argument.

3 The Court will also dismiss Sherrer from the action, insofar 

as the FMLA Claim was raised against him. (See 10-12-12 Letter 

Order (noting parties’ agreement that Sherrer should, to the extent 

that the Motion is granted, be dismissed from the action).)

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dismiss the CEPA Claim without prejudice to recommence that part of 

the action in state court. See 28 U.S.C. § 1367(c)(3).

II. STANDARD OF REVIEW

Summary judgment is proper pursuant to Federal Rule of Civil 

Procedure (“Rule”) 56 “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). 

The movant carries the initial burden of demonstrating an 

absence of genuinely disputed material facts. See Celotex Corp. v. 

Catrett, 477 U.S. 317, 330 (1986). Material facts are those that 

“could affect the outcome” of the proceeding, and “a dispute about 

a material fact is ‘genuine’ if the evidence is sufficient to 

permit a reasonable jury to return a verdict for the non-moving 

party.” Lamont v. New Jersey, 637 F.3d 177, 181 (3d Cir. 2011) 

(citation omitted). The Court, when determining whether the movant 

has carried this burden, must view the evidence in the light most 

favorable to and draw all reasonable inferences in favor of the 

non-movant. Scott v. Harris, 550 U.S. 372, 380 (2007); Wishkin v. 

Potter, 476 F.3d 180, 184 (3d Cir. 2007). 

If the movant carries that burden, then the burden shifts to 

the non-movant to demonstrate the existence of at least one genuine 

issue for trial. See Matsushita Elec. Indus. Co., Ltd. v. Zenith 

Radio Corp., 475 U.S. 574, 586–87 (1986); Williams v. Bor. of W. 

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Chester, Pa., 891 F.2d 458, 460–61 (3d Cir. 1989). “Where the 

record taken as a whole could not lead a rational trier of fact to 

find for the non-moving party, there is no genuine issue for 

trial.” Matsushita Elec. Indus. Co., 475 U.S. at 587 (citation 

omitted) (internal quotation marks omitted). The non-movant must 

show that such issues exist by reference to the evidence of record. 

See Fed.R.Civ.P. 56(c)(1); Matsushita Elec. Indus. Co., 475 U.S. at 

586. The non-movant may not rely solely on argument, speculation 

or conjecture, or inferences that rise therefrom. See Lamont, 637 

F.3d at 182 (“[T]he party opposing summary judgment . . . must 

point to evidence -- whether direct or circumstantial -- that 

creates a genuine dispute of material fact, ‘and may not rely 

simply on the assertion that a reasonable jury could discredit the 

opponent[s’] account.’” (citation omitted) (latter alteration in 

original)); Kovalev v. City of Phila., 362 Fed.Appx. 330, 331 (3d 

Cir. 2010); Robertson v. Allied Signal, Inc., 914 F.2d 360, 382 

n.12 (3d Cir. 1990).

If the non-movant fails to show the existence of at least one 

genuine issue of material fact, then the burden shifts back to the 

movant to show an entitlement to judgment as a matter of law. A 

movant is entitled to such judgment if, at trial, no reasonable 

jury could find for the non-moving party. See Celotex Corp., 477 

U.S. at 325; In re Bressman, 327 F.3d 229, 238 (3d Cir. 2003). 

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“‘[T]he burden on the moving party may be discharged by ‘showing’ 

-- that is, pointing out to the district court -- that there is an 

absence of evidence to support the nonmoving party’s case’ when the 

nonmoving party bears the ultimate burden of proof.” Conoshenti v. 

Pub. Serv. Elec. & Gas Co., 364 F.3d 135, 140 (3d Cir. 2004) 

(citation omitted).

The United States Court of Appeals for the Third Circuit has 

repeatedly cautioned parties opposing summary judgment to support 

their argument by reference to the record. See DeShields v. Int’l 

Resort Props. Ltd., 463 Fed.Appx. 117, 120 (3d Cir. 2012) (“If 

factual support for [the plaintiff’s] claim existed in the record, 

it was incumbent upon her to direct the District Court’s attention 

to those facts.”); Perkins v. City of Elizabeth, 412 Fed.Appx. 554, 

555 (3d Cir. 2011) (“[A] court is not obligated to scour the record 

to find evidence that will support a party’s claims. . . . Courts 

cannot become advocates for a party by doing for that party what 

the party ought to have done for him or herself.”). Indeed, that

court has noted that “[j]udges are not like pigs, hunting for 

truffles buried in briefs.” DeShields, 463 Fed.Appx. at 120 

(quoting United States v. Starnes, 583 F.3d 196, 216 (3d Cir. 2009) 

(quoting United States v. Dunkel, 927 F.2d 955, 956 (7th Cir. 

1991))) (alteration in original).

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III. BACKGROUND

Everett began working for SID in 1993. (See dkt. entry no. 

28-8, Ex. B to Kemether Certification, Everett Dep. at 23:12-14.) 

In May of 2006, he was promoted to the position of Assistant Chief 

Investigator. (See id. at 16:15-19, 21:15-24.) On or about 

February 1, 2009, following the retirement of his supervisor, the 

Chief Investigator, Everett “began supervising the day to day 

operations of the SID, in an acting capacity only, without the 

actual title or any increased compensation.” (Dkt. entry no. 28-1,

Moving Defs.’ Statement of Facts (“SOF”) at ¶ 18 (emphasis in 

original); see also Everett’s Response to Moving Defs.’ SOF at 

¶ 18.)4

Everett submitted a request for “family leave” in 2009, during 

his time as the acting Chief Investigator of the SID. (See dkt. 

entry no. 28-21, Ex. R to Kemether Certification, Certification of 

Health Care Provider for Family Member’s Serious Health Condition 

at 1.) The NJDOC approved Everett’s request, and Everett took 

intermittent leave from the SID between February 28, 2009 and March 

10, 2009. (See Everett Dep. at 181:17-182:21; dkt. entry no. 

28-21, 3-30-09 Mem. from Judith Todd to Everett (approving the 

request).) 

 4 Where, as here, both the Moving Defendants and Everett have 

affirmatively agreed on statements of fact, the Court relies on the 

Moving Defendants’ SOF and Everett’s response thereto.

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Everett continued to unofficially supervise the day to day 

operations of the SID until July 27, 2009, when he was appointed as 

the Chief Investigator of the SID on a provisional basis. (See

dkt. entry no. 28-20, Ex. Q to Kemether Certification, 7-22-09 Mem. 

from Todd to Hayman, et al.; see also Everett Dep. at 18:3-6 

(recognizing that the appointment was for a “provisional title,” 

which was issued “pending promotional examination”).) He continued 

to serve the SID in that capacity until early December of 2009, 

when he was removed as Chief Investigator and returned to his role 

as an Assistant Chief Investigator. (See dkt. entry no. 28-14, Ex. 

K to Kemether Certification, 12-8-09 Mem. from Haley to Everett.) 

IV. ANALYSIS

A. Everett Has Failed to Establish a Prima Facie Claim of 

Retaliation under the FMLA

To prevail on a retaliation claim under the FMLA, a plaintiff 

must prove that: (1) he invoked his right to FMLA-qualifying leave;

(2) he suffered an adverse employment decision; and (3) the adverse 

action was causally related to his invocation of rights under the 

FMLA. Lichtenstein v. Univ. of Pittsburgh Med. Ctr., 691 F.3d 294, 

301-02 (3d Cir. 2012). Because FMLA retaliation claims require 

proof of the employer’s retaliatory intent, courts assess such 

claims through the lens of employment discrimination law. Id. at 

302. Accordingly, claims based on circumstantial evidence are

assessed under the burden-shifting framework that was established 

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in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1976). Id. at 

302, 302 n.11; see also Colburn v. Parker Hannifin/Nichols Portland 

Div., 429 F.3d 325, 331-32 (1st Cir. 2005); Portenza v. City of 

N.Y., 365 F.3d 165, 167-68 (2d Cir. 2004).

Under the McDonnell Douglas framework, Everett has the initial 

burden of production, insofar as he must establish a prima facie

claim of retaliation under the FMLA. To do so, he must point to 

evidence of record sufficient to create a genuine factual dispute 

about each element of the FMLA Claim, i.e.: (1) invocation of an 

FMLA right; (2) an adverse employment action; and (3) causation. 

Lichtenstein, 691 F.3d at 302.5

 

Everett offers the following argument in opposition to the 

Motion, and in support of his contention that he can establish a 

prima facie claim of retaliation under the FMLA:

In the present case the Plaintiff has proven that 

he took approved FMLA leave in February and March 2009, 

after assuming the day to day role of Acting Chief SID. 

Plaintiff can also show he suffered an adverse 

employment decision; being removed as Acting Chief in 

December 2009. Finally, Everett cal [sic] also show a 

causal connection between his exercising FMLA leave and 

 5 If Everett met this burden, then the burden of production 

would shift to the Moving Defendants to “articulate some 

legitimate, nondiscriminatory reason” for the adverse employment 

action. Lichtenstein, 691 F.3d at 302 (quoting McDonnell Douglas, 

411 U.S. at 802). And if the Moving Defendants met “this minimal 

burden,” then the burden of production would shift back to Everett, 

who would be required to “point to some evidence, direct or 

circumstantial, from which a factfinder could reasonably disbelieve 

[the Moving Defendants’] articulated legitimate reasons.” Id.

(citation omitted).

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his subsequent removal. Defendant [McCourt] told him he 

wasn’t there enough when advised by Everett that he had 

utilized approved FMLA leave he was informed by 

[McCourt] that he didn’t care.

(Opp’n Br. at 8.) 

The Court need not address the merits of Everett’s argument. 

It is sufficient to note that Everett has failed to meet the burden 

of production set forth in Rule 56 and related cases; he has failed 

to show that at least one genuine issue of disputed fact exists by

reference to the record. (See id.) But see Fed.R.Civ.P. 56(c)(1);

DeShields, 463 Fed.Appx. at 120; Perkins, 412 Fed.Appx. at 555. 

Neither his brief nor his response to the Moving Defendants’ SOF 

references evidence of record.6

 Because Everett is represented by 

counsel, the Court will neither liberally construe his opposition 

papers nor scour the record on his behalf.

If the Court addressed the merits of Everett’s argument, then 

the Court would nonetheless conclude that he cannot establish a 

prima facie case of retaliation under the FMLA. Specifically, he 

has failed to carry his burdens of production and persuasion as 

they pertain to causation.

 6 The Court has reviewed “Plaintiff Everett’s Counter 

Statement [sic] of Uncontested Material Facts in Support of His 

Opposition to Defendants [sic] Motion for Summary Judgment,” which 

properly references the record. (See dkt. entry no. 35, Everett’s 

SOF.) However, the Court has concluded that none of the statements 

contained in that document affect the resolution of the FMLA Claim. 

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Everett appears to argue that he was removed as Chief 

Investigator of the SID in December of 2009 because he took 

intermittent leave under FMLA between February 28, 2009 and March 

10, 2009, approximately nine months earlier. He offers no other 

evidence to support his claim.7

Everett’s argument runs afoul of well-settled law regarding 

temporal proximity. The temporal proximity between an employer’s 

knowledge of protected activity and an adverse employment action 

cannot suffice to establish a prima facie case of retaliation under 

the FMLA unless the temporal proximity could be construed as “very 

close” or “unusually suggestive”. LeBoon v. Lancaster Jewish Cmty. 

Ctr. Ass’n, 503 F.3d 217, 232 (3d Cir. 2007) (citations omitted). 

Such temporal proximity will not be construed as “very close” if it 

meets or exceeds three months. See Clark Cnty. Sch. Dist. v. 

Breeden, 532 U.S. 268, 273 (2001). Because the protected activity 

and adverse employment action here were separated by approximately 

 7 Everett states in the Opposition Brief that McCourt, when 

advising Everett of his removal from the position of Chief 

Investigator, cited Everett’s excessive absenteeism and advised 

Everett that he “didn’t care” about Everett’s exercise of FMLA 

leave. (See Opp’n Br. at 8.) It appears that Everett has 

misconstrued the record. McCourt’s comments about absenteeism were 

directed toward Everett’s on-the-job performance between April 11, 

2009 and December 2, 2009. (See dkt. entry no. 28-13, Ex. J to 

Kemether Certification, 12-2-09 Mem. from McCourt to Haley; see 

also Everett Dep. at 127:13-14 (demonstrating that Everett met with 

McCourt and Haley), 132:17-133:13 (referring to McCourt’s comments 

during a meeting on December 4, 2009). Because that period does 

not include the period when Everett exercised his rights under 

FMLA, such leave was immaterial to his discussion with McCourt.

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nine months, and because no other evidence supports the FMLA Claim, 

the FMLA Claim would fail.

B. The Court Will Dismiss the CEPA Claim Without Prejudice 

to Recommence that Part of the Action in State Court

Where, as here, the Court has resolved all claims over which 

the Court has original jurisdiction, the Court has discretion to 

decline to exercise supplemental jurisdiction over the remaining 

claims. See 28 U.S.C. § 1367(c)(3). 

It has consistently been recognized that pendent 

jurisdiction is a doctrine of discretion, not of 

plaintiff’s right. . . . Needless decisions of state 

law should be avoided both as a matter of comity and to 

promote justice between the parties, by procuring for 

them a surer-footed reading of applicable law. 

Certainly, if the federal claims are dismissed before 

trial, even though not insubstantial in a jurisdictional 

sense, the state claims should be dismissed as well.

United Mine Workers v. Gibbs, 383 U.S. 715, 726 (1966) (footnotes 

omitted); see also Byrd v. Shannon, No. 11-1744, 2013 WL 1760848, 

at *9 (3d Cir. Apr. 25, 2013). “Under Gibbs jurisprudence, where 

the claim over which the district court has original jurisdiction 

is dismissed before trial, the district court must decline to 

decide the pendent state claims unless considerations of judicial 

economy, convenience, and fairness to the parties provide an 

affirmative justification for doing so.” Bor. of W. Mifflin v. 

Lancaster, 45 F.3d 780, 788 (3d Cir. 1995). It does not appear 

that such considerations are controlling here. 

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V. CONCLUSION

The Court will grant the Motion insofar as it concerns the 

FMLA Claim. The Court will accordingly enter judgment on that 

claim in the Moving Defendants’ favor and against Everett, and, for 

the reasons stated in note 3, supra, dismiss Sherrer from the 

action insofar as the FMLA Claim was raised against him. The CEPA 

Claim will be dismissed without prejudice to Everett to recommence 

that portion of the action in an appropriate state court pursuant 

to 28 U.S.C. § 1367(d). The Court will enter a separate order and 

judgment.

 s/ Mary L. Cooper .

MARY L. COOPER

United States District Judge

Date: May 28, 2013

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